text:
    IN RE the MARRIAGE OF: Chad Michael BESSETTE, Petitioner and Appellee, and Jennifer Ruth Bessette, Respondent and Appellant.
    DA 18-0025
    Supreme Court of Montana.
    Submitted on Briefs: June 27, 2018 Decided: February 12, 2019
    For Appellant: Jennifer Ruth Bessette, self-represented, Bigfork, Montana
    For Appellee: Sean R. Gilchrist, Johnson-Gilchrist Law Firm, Whitefish, Montana
   Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 Jennifer Ruth Bessette (Mother) appeals pro se the judgment of the Montana Eleventh Judicial District Court, Flathead County temporarily suspending a previously imposed parenting plan for the minor child, L.G.B. We affirm.

¶2 We restate the dispositive issues as:

1. Whether the District Court erroneously granted and maintained a temporary emergency order pursuant to § 40-4-220(2)(a)(ii), MCA, without an adequate showing and finding of changed circumstances under §§ 40-4-219(1) and -220(1), MCA ?
2. Whether the District Court abused its discretion when it limited Mother to supervised visitation?
3. Whether the District Court abused its discretion in denying Mother's request to refer the matter to Family Court Services in lieu of further involvement of the court-appointed guardian ad litem?
4. Whether the District Court abused its discretion in precluding admission of a psychological evaluation report authored by a non-testifying mental health professional?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On November 4, 2015, Chad Bessette (Father) filed a petition for dissolution of his marriage to Mother and for imposition of a court-ordered parenting plan for their minor child, L.G.B., then six years old. After Mother timely responded and litigation ensued for over a year, the parties eventually stipulated to a final parenting plan. On December 6, 2016, the District Court approved and imposed the stipulated plan as a final parenting plan. The plan provided that, from March through November of each year, the child would reside in Father's custody and care from Thursday evening to Friday evening, and alternating weekends. From November through March, the child would reside in Father's custody and care from Wednesday evening to Friday afternoon, and on alternating weekends. The child would be in Mother's custody and care at all other times.

¶4 On June 12, 2017, Mother filed a motion to amend the final parenting plan supported by affidavit and a proposed amended parenting plan. Based on an incident of domestic violence at Father's home in the presence of the child, Father subsequently applied for and obtained a temporary order of protection against Mother. On August 8th, the District Court denied Mother's motion for an amended final parenting plan and set all remaining issues for bench trial. On September 8th, 2017, Mother filed a motion for appointment of a limited-scope guardian ad litem (GAL) to assess the parenting dispute and make recommendations to the court regarding what contact Mother should ultimately have with the child in light of recent developments. On September 15th, the court granted Mother's motion and appointed Christina Larsen, Esq., as a limited-scope GAL for L.G.B.

¶5 On November 29, 2017, the parties participated in a twelve-hour settlement conference encompassing a wide-range of parenting plan, temporary protective order, and marital estate distribution issues still outstanding. As a result, the parties entered into stipulated parenting plan and marital estate distribution agreements. On December 1, 2017, the District Court adopted and imposed the parties' now-second stipulated parenting plan as their amended final parenting plan. The plan essentially placed L.G.B. in the primary custody and care of Father subject to a three-phase graduated transition schedule designed to incrementally increase Mother's parenting time upon demonstration of stable and appropriate parenting conduct. Under Phase 1, for two weeks, Mother would have specified day visitation on Saturdays or Sundays and after-school visits on Wednesdays. Under Phase 2, for three weeks, Mother would have the child overnight from Saturday at 8:00 AM to Sunday at 6:00 PM. Under Phase 3, for four weeks, Mother would have specified parenting time on alternating weekends. Upon the completion of the phased transitional schedule, the parties would have equal parenting time on a specified alternating schedule. The stipulated plan provided that the previously appointed GAL (Larsen) would oversee the transitional phases of the plan and monitor the child's adjustment to Mother through the first month of the plan. The parenting plan further superseded the prior temporary protective order as to the child and provided that parenting exchanges would be an exception to the continuing protective order between Father and Mother.

¶6 On December 13, 2017, only two weeks into the phased transition schedule, an incident occurred at the parking lot of Pick's Bowling Alley in Bigfork, Montana, where Mother and Father had arranged to meet to exchange the child. According to Father, he drove to the Bowling Alley, accompanied by his girlfriend, and waited for Mother to arrive with the child. Upon arriving with the child and seeing Father's girlfriend, Mother rapidly accelerated toward Father's car, stopping abruptly approximately two feet short of where Father was standing next to the car. Mother then angrily got out and repeatedly screamed "you shouldn't bring that bitch here." The child then became upset, yelling at Mother to "stop fighting." According to Mother's version of the events, she merely "parked very close" to Father's car "because it was icy and snowy and [she] didn't want [the child] to have to walk across the lot and slip on the ice." Mother acknowledged that her "reaction could have been better."

¶7 On December 15, 2017, Father filed a motion "for ex parte interim relief" and a subsequent show cause hearing. The motion requested immediate suspension of the parties' then-governing amended parenting plan to bar Mother from having unsupervised contact with the child. The motion further requested that the court reauthorize the court-appointed GAL to investigate and make further recommendation as to what contact Mother should have with the child. Father characterized the relief sought as "ex parte interim relief" but did not expressly seek modification of the parties' then-governing final parenting plan. The District Court issued Father's proposed ex parte order and set a show cause hearing for January 3, 2018.

¶8 At the show cause hearing, the court heard testimony from various witnesses regarding the circumstances of the bowling alley incident and the damaging effect on the child of Mother's continued belligerent behavior toward Father. Testifying on behalf of the child and based on consultation with the child's therapist, Mother's therapist, and interviews of the child and Father, the GAL testified that the child continued to be traumatized and scared by Mother's uncontrolled anger and rage toward Father. The GAL testified that Mother's behavior had not improved under the amended parenting plan to date and thus recommended that the court order her to complete anger management counseling to help control her emotions. The GAL further recommended that, in the interim, the court should limit Mother's contact with the child to supervised visitation.

¶9 Mother acknowledged that her behavior could have been better but asserted that there had been no change of circumstances sufficient to warrant modification of the parties' prior parenting plan. On the purported basis of eliminating the continuing cost of the GAL, Mother further requested that the court relieve the GAL and refer the matter to the Eleventh Judicial District Family Court Services program for further monitoring.

¶10 Finding it necessary in the best interests of the child, the District Court orally ordered: (1) continued suspension of the prior parenting plan; (2) that Mother complete 40 hours of anger management counseling; (3) that Mother have only supervised visitation pending reinstatement of the parenting plan; and (4) that, upon approval from the GAL, the child's counselor, and the anger management counselor, the prior parenting plan would be reinstated and restarted under its phased transition schedule. Inter alia , the District Court explained that, "rather than a change in circumstances," the bowling alley incident "was just a continuation of what had been going on before ... it's the same old stuff ... so I'm going to suspend the parenting plan" with the "hop[e] that within ... a year from now it will be going full tilt 50/50."

¶11 On the stated ground that any such referral "probably should have been done a year or two ago [a]nd I ... hate to reinvent the wheel at this stage," the court orally denied Mother's motion to refer the matter to Family Court Services in lieu of further involvement of the GAL.

¶12 The Court subsequently issued written findings of fact, conclusions of law, and judgment formalizing its oral ruling at hearing. With reference to the parties' previously imposed parenting plan, the District Court's written judgment stated, inter alia :

[1] Pursuant to M.C.A. § 40-4-220(2)(ii), the [c]ourt has the authority to grant a temporary order providing for living arrangements for the child ex parte as an emergency situation has arisen in the child's present environment that endangers the child's physical, mental, and emotional health and an immediate change is necessary to protect the child.
[2] The [prior amended parenting plan] was [previously] approved as an Order of the Court.... However, it is in the child's best interest under ... M.C.A. § 40-4-212 that the [prior parenting plan] is suspended until such time as....

The written judgment ultimately ordered that the parties' prior amended parenting plan "is hereby SUSPENDED" pending satisfaction of the specified conditions of reinstatement. Mother timely appeals.

STANDARD OF REVIEW

¶13 District courts have broad discretion to make and modify parenting plan determinations under the applicable standards of §§ 40-4-212, -219, and -220, MCA. In re C.J ., 2016 MT 93, ¶ 13, 383 Mont. 197, 369 P.3d 1028. We review parenting plan determinations and modifications for a clear abuse of discretion. C.J ., ¶ 13 ; Jacobsen v. Thomas , 2006 MT 212, ¶ 13, 333 Mont. 323, 142 P.3d 859. We review evidentiary rulings for an abuse of discretion but subject to de novo review of related questions or applications of law. State v. Frey , 2018 MT 238, ¶ 12, 393 Mont. 59, 427 P.3d 86 ; Puccinelli v. Puccinelli , 2012 MT 46, ¶ 12, 364 Mont. 235, 272 P.3d 117. An abuse of discretion occurs if a court exercises granted discretion based on a clearly erroneous finding of fact, an erroneous conclusion or application of law, or otherwise "acts arbitrarily, without employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice."

In re D.E. , 2018 MT 196, ¶ 21, 392 Mont. 297, 423 P.3d 586. A finding of fact is clearly erroneous only if not supported by substantial evidence, the court misapprehended the effect of the evidence, or, based on our review of the record, we have a definite and firm conviction that the lower court was mistaken. D.E. , ¶ 21. We review conclusions of law de novo for correctness. D.E. , ¶ 21.

DISCUSSION

¶14 1. Whether the District Court erroneously granted and maintained a temporary emergency order pursuant to § 40-4-220(2)(a)(ii), MCA, without an adequate showing and finding of changed circumstances under §§ 40-4-219(1) and -220(1), MCA ?

¶15 Regardless of the District Court's characterization of it as a mere temporary "suspension" of the prior parenting plan, Mother characterizes the relief granted as a modification or amendment of a prior parenting plan subject to the requirements of § 40-4-219(1), MCA. Based on the court's characterization of her conduct as "a continuation of" the "same old stuff" that "had been going on before" rather than "a change in circumstances," Mother essentially asserts that the court either erroneously modified the prior parenting plain without a sufficient finding of changed circumstances or, alternatively, erroneously suspended the parenting plan pursuant to § 40-4-220(2)(a)(ii), MCA, independent of § 40-4-219(1), MCA. In response, Father essentially asserts that the relief granted was not a modification of a prior parenting plan but merely a temporary suspension of the existing parenting plan independently authorized under § 40-4-220(2)(a)(ii), MCA, without regard for the requirements of § 40-4-219(1), MCA.

¶16 In its discretion, a district court may amend or modify a previously imposed parenting plan only upon finding that (1) a change in the circumstances of the child exists based on "facts that have arisen since the prior plan or that were unknown to the court at the time of entry of the prior plan"; and (2) amendment or modification is "necessary to serve the best interest of the child" based on consideration of the relevant criteria specified in §§ 40-4-212 and - 219(1), MCA. Section 40-4-219(1), MCA. For purposes of § 40-4-219(1), MCA, a prior parenting plan is a court-ordered parenting plan constituting a final judgment of the court in a parenting proceeding. See § 40-4-219(7), MCA ; In re Marriage of Hedges , 2002 MT 204, ¶ 18, 311 Mont. 230, 53 P.3d 1273 (distinguishing final parenting plans from "interim" or "temporary" parenting plans); In re Marriage of Allen , 237 Mont. 64, 68, 771 P.2d 578, 580 (1989) (limited purpose of interim or temporary parenting plans authorized by § 40-4-213, MCA (interim parenting plans) is to provide for "temporary custody pending [final] resolution of the action" (original emphasis)). See also §§ 40-4-219(1), -233(1), -234(1), -213(4), MCA (distinguishing "amended parenting plan" from "prior plan," mandating incorporation of "final parenting plan" into "any final decree or amended decree" in "every dissolution proceeding" or "parenting plan proceeding," and providing that "[a]doption of a final parenting plan under 40-4-234 vacates any interim parenting plan adopted under" § 40-4-213, MCA ).

¶17 At present, Title 40, chapter 4, part 1, MCA, provides for only three types of parenting plans-initial parenting plans, amended parenting plans, and temporary interim parenting plans incident to a previously or concurrently filed request for an initial or amended parenting plan. See §§ 40-4-211(1), -212, -213, -219, -220, MCA ; In re Marriage of Kovash , 260 Mont. 44, 50, 858 P.2d 351, 355 (1993) ("[t]emporary child custody" order under § 40-4-213, MCA, "is merely an initial determination made" for temporary custody "until such time as full hearing ... may be" had-showing of changed circumstances under § 40-4-219, MCA, not required for final parenting plan superseding interim parenting plan imposed incident to initial parenting plan determination).

¶18 A party seeking amendment or modification of a prior parenting plan must file a motion for amendment supported by an affidavit showing of the alleged change in circumstances and necessity for modification specified in § 40-4-219(1), MCA.

Sections 40-4-219(1), -220(1), MCA. If the motion and supporting affidavits are "adequate" to establish cause for modification under both requirements of § 40-4-219(1), MCA, the court must then set a duly noticed show cause hearing on the merits. Section 40-4-220(1), MCA. If not, the court "shall deny the motion." Section 40-4-220(1), MCA.

¶19 Within this framework, the party seeking amendment may also seek an ex parte interim order for "temporary living arrangements for the child." Section 40-4-220(2)(a)(i), MCA. In addition to the affidavit showing required by §§ 40-4-219(1) and -220(1), MCA, the motion must be further supported by an additional affidavit showing that "an emergency situation has arisen ... endanger[ing] the child's physical, mental, or emotional health" and that "an immediate" parenting plan change "is necessary to protect the child" pending further proceedings. Section 40-4-220(2)(a)(ii), MCA. If the ex parte affidavit showing is sufficient to establish a prima facie showing of an emergency situation endangering the child and a resulting need for immediate protection as required by § 40-4-220(2)(a)(ii), MCA, then the court "shall" issue an order granting the requested temporary parenting plan and then "require all parties to appear" before the court "within 21 days from the execution of the interim parenting plan" and "show cause ... why the interim parenting plan should not remain in effect until further order of court." Section 40-4-220(2)(b), MCA. The moving party has a "heavy burden" of proving entitlement to relief under §§ 40-4-219(1), -220(1), and -220(2)(a)(ii), MCA. In re R.J.N. , 2017 MT 249, ¶ 9, 389 Mont. 68, 403 P.3d 675. The exacting procedural and substantive requirements of those statutes "promote[ ] stability" for children and discourage "unnecessary litigation over parenting plans." R.J.N. , ¶ 12. In contrast to interim parenting plans issued pending an initial parenting plan determination, §§ 40-4-213(1) and -220(1)-(2), MCA, do not provide for an interim parenting plan incident to a requested amendment of a prior parenting plan except upon an affidavit showing of changed circumstances and an "emergency situation" endangering the child. See §§ 40-4-213(1), -220(1), (2)(a), MCA (interim parenting plan incident to request for initial parenting plan determination); compare §§ 40-4-213(1), -219(1), -220(1), (2)(b), MCA (interim parenting plan incident to request for amendment of prior parenting plan).

¶20 Citing In re Arneson-Nelson , 2001 MT 242, ¶¶ 33-34, 307 Mont. 60, 36 P.3d 874, Father asserts that § 40-4-220(2)(a)(ii), MCA, provides district courts authority to grant emergency relief temporarily overriding a prior parenting plan independent of and without an associated request for amendment under § 40-4-219(1), MCA. In Arneson , against the backdrop of a previously imposed final parenting plan, a mother filed a motion for a temporary ex parte order suspending the father's visitation rights under the prior parenting plan based on the alleged negative impact on the child of the father's belligerent behavior toward the mother. Arneson , ¶¶ 12-13. Finding good cause thereon, the district court issued an interim order temporarily suspending the father's parenting plan rights pending a hearing. Arneson , ¶ 13. Upon hearing, based on express findings that the father's hostile behavior was harmful to the child and that the best interests of the child required continued suspension of father's contact with the child, the court issued an order "supend[ing] all physical contact between" the father and child and limited the father's contact with the child "to phone calls, e-mail, and mail." Arneson , ¶¶ 14, 20. On appeal, father asserted that the district court erroneously modified his prior parenting plan rights without finding the change in circumstances required by § 40-4-219(1), MCA. Arneson , ¶ 30. Though the district court did not make an express finding of a "change in circumstances," we reviewed the court's judgment under § 40-4-219(1), MCA, and ultimately held that the findings made by the court were sufficient to support and clearly imply the requisite finding of a change in circumstances. Arneson , ¶ 30. Arneson thus does not support the proposition that § 40-4-220(2)(a)(ii), MCA, authorizes district courts to temporarily suspend or deviate from a prior parenting plan absent the change of circumstances required by § 40-4-220(2)(a)(ii), MCA. By its terms in context of §§ 40-4-213, -219(1), and -220(1), MCA, § 40-4-220(2)(a)(ii), MCA, does not provide district courts authority to grant emergency relief temporarily overriding a prior parenting plan independent of and without an associated request for amendment under § 40-4-219(1), MCA.

¶21 Here, Mother correctly points out that the District Court characterized its order on hearing as a mere temporary "suspension" of the prior parenting plan subject to specified conditions for reinstatement. This characterization notwithstanding, the relief granted upon hearing, within the limited application of §§ 40-4-220(1) - (2), MCA, in regard to a previously imposed parenting plan, was in substantive effect an amendment or modification of a prior parenting plan subject to § 40-4-219(1), MCA. In that context, we agree with Mother that, in addition to not making a specific finding of a change in circumstances under § 40-4-219(1), MCA, the District Court further made a seemingly contrary statement from the bench-rather than "a change in circumstances," Mother's conduct was "a continuation of" the "same old stuff" that "had been going on before." However, we must view the court's oral statement in context of the hearing record and in light of the actual findings of fact and conclusions of law entered pursuant to M. R. Civ. P. 52(a).

¶22 The court's written findings of fact did not similarly state or manifestly imply that it found that no change in circumstances that had arisen since imposition of the prior parenting plan. Moreover, as in Arneson , the court's written findings clearly manifest a change in circumstances that would have supported an express finding under § 40-4-219(1), MCA. Under the terms of the prior parenting plan, Mother would either have had limited visitation as provided by the transition schedule or, upon satisfaction of the specified conditions precedent, shared custody with Father on a specified 50/50 basis. In either event, the prior parenting plan clearly contemplated that its structure and provisions would be sufficient to adequately protect the child under the then-contemplated circumstances. The terms of the parenting plan did not contemplate or provide for the nature and occurrence of Mother's subsequent behavior and the resulting need for additional protection of the child not provided under the prior parenting plan .

¶23 Moreover, despite its seemingly contrary comment from the bench, the District Court's written conclusions of law clearly manifest the court's awareness and understanding that, as a matter of law, emergency relief under § 40-4-220(2)(a)(ii), MCA, is available only in conjunction with a request for modification of a prior parenting plan pursuant to §§ 40-4-219(1) and -220(1), MCA. Even in the isolated context of the hearing record, the court's comment cannot be fairly viewed as an oral finding of fact. It occurred in the narrow context of the court compassionately explaining to Mother the necessity of the temporary modification and the built-in pathway for reinstatement of the prior plan. Thus, as in Arneson , the court's written findings of fact and conclusions of law manifestly imply a sufficient finding of a requisite change in circumstances under § 40-4-219(1), MCA. We hold that the District Court did not erroneously modify the parties' prior parenting plan without a sufficient finding of changed circumstances as required by § 40-4-219(1), MCA.

¶24 2. Whether the District Court abused its discretion when it limited Mother to supervised visitation? ?

¶25 Mother asserts that the District Court erroneously limited her custodial rights to supervised visitation without making the requisite finding of fact under § 40-4-218(2), MCA. Subject to § 40-4-219(1), MCA, as applicable, a district court "shall determine [a] parenting plan in accordance with the best interest of the child." Section 40-4-212(1), MCA. In determining the best interest of the child, the court must "consider all relevant parenting factors" including, inter alia , "the interaction and interrelationship of the child with the child's parent or parents," "mental and physical health of all individuals involved," and "physical abuse or threat of physical abuse by one parent against the other parent or the child." Section 40-4-212(1)(c), (e)-(f), (2), MCA. Absent an agreement of the parties, a court "may order supervised visitation by the noncustodial parent," upon a finding that failure to do so would endanger the child's physical health or significantly impair the child's emotional development. Section 40-4-218(2), MCA. ¶26 We strongly recommend and caution that district courts should make specific findings on all relevant statutory criteria in making parenting plan determinations under Title 40, chapter 4, part 2, MCA. See In re Marriage of Woerner , 2014 MT 134, ¶ 15, 375 Mont. 153, 325 P.3d 1244. Nonetheless, under the doctrine of implied findings, we will not reverse a parenting plan determination for failure to make a specific finding if the express findings made were not clearly erroneous and were themselves sufficient, alone or in conjunction with other record evidence, to support and manifestly imply a more specific finding on the requisite statutory criteria. In re D.L.B. , 2017 MT 106, ¶¶ 13-14, 387 Mont. 323, 394 P.3d 169. Here, the District Court did not make a specific finding of fact on the criteria specified in § 40-4-218(2), MCA. However, regardless of other conflicting evidence, substantial record evidence supports the findings of fact made by the court. In context of its conclusions of law, the written findings made by the court were further manifestly sufficient to support and imply a finding that the failure to temporarily limit Mother to supervised visitation would likely significantly impair the child's emotional development under the circumstances-a circumstance and need not contemplated or provided for in the prior parenting plan. Apart from the court's failure to make a specific finding of fact under § 40-4-218(2), MCA, Mother has failed to demonstrate either that the findings made were clearly erroneous or that the court otherwise abused its discretion. We hold that the District Court did not erroneously limit Mother to supervised visitation without making a sufficient finding under § 40-4-218(2), MCA.

¶27 3. Whether the District Court abused its discretion in denying Mother's request to refer the matter to Family Court Services in lieu of further involvement of the court-appointed guardian ad litem?

¶28 The Eleventh Judicial District Court has long utilized a local Family Court Services (FCS) program to assist the court in determining and monitoring parenting plans. See Eleventh Jud. Dist. Local Rule 8(B) (June 2018); In re Marriage of Wilson , 2009 MT 203, ¶ 16, 351 Mont. 204, 210 P.3d 170 ; In re Marriage of Hickey , 213 Mont. 38, 43-44, 689 P.2d 1222, 1225 (1984). Since superseded by a discretionary rule, the prior local rule, as applicable here without exception, unequivocally mandated that, "[u]pon request of either party, the [c]ourt shall " refer a subject child custody or visitation matter to FCS "for investigation, report and recommendation." Local Rule 22(D)(2) (superseded June 28, 2018) (emphasis added). Mother thus asserts that, regardless of its rationale, the District Court erroneously denied her motion for referral to FCS as then-required by local rule.

¶29 To the extent not in conflict with the Montana Constitution, statutes, or rules of this Court, district courts have power and discretion to adopt local rules of administration, practice, and procedure. Sections 3-1-112(1), 3-2-704, MCA ; M. R. Civ. P. 83. Duly-adopted local rules are generally "binding upon" the adopting court.

McLaughlin v. Hart , 213 Mont. 216, 219, 690 P.2d 431, 433 (1984). However, contrary to Mother's characterization, this is not a case where a court simply disregarded its own local rule.

¶30 In September 2017, in the ongoing course of pre-judgment litigation prior to the initial parenting plan determination, the District Court granted Mother's uncontested motion for appointment of a limited-scope GAL to assess the parenting dispute and make recommendations regarding what contact Mother should ultimately have with the child. At that time, the parties stipulated to splitting the costs of the GAL's services. As an integral component, the stipulated and ultimately imposed parenting plan mandated that the previously appointed GAL would monitor Mother's progress and the child's welfare throughout the specified transition schedule. Mother did not object.

¶31 This chapter of the ongoing custody dispute arose after imposition of the parties' "final" parenting plan and prior to expiration of the stipulated period of court-ordered monitoring by the GAL. Under these unique circumstances, Mother waived her option of compelling referral to FCS pursuant to the since-superseded Local Rule 22(D)(2). We hold that the District Court did not erroneously fail to refer this matter to FCS in violation of the then-governing local rule.

¶32 4. Whether the District Court abused its discretion in precluding admission of a psychological evaluation report authored by a non-testifying mental health professional?

¶33 At the show cause hearing, Mother moved for admission of a presumably favorable written psychological evaluation report prepared by an examining mental health professional not called to testify. On Father's objection, the District Court denied admission of the report as inadmissible hearsay. Mother proceeded to examine the court-appointed GAL about her knowledge of the substance of the report. The record manifests that the testimony elicited by Mother from the GAL was largely rank hearsay as defined and generally inadmissible under M. R. Evid. 801 - 02. Mother essentially asserts that Father's failure to object to the hearsay testimony subsequently elicited by Mother was a tacit, after-the-fact waiver of his prior successful objection. Mother thus puts the District Court in error for failing to retroactively admit the previously precluded evidence sua sponte .

¶34 No sale. Mother acknowledges on appeal that the evaluation report was inadmissible hearsay as defined by M. R. Evid. 801 - 02. However inconsistent or counterproductive, Father's failure to object to the subsequent admission of the subject hearsay through other means does not render the District Court in error for failing to retroactively admit the previously precluded evidence sua sponte . We hold that the District Court did not abuse its discretion in precluding admission of the subject psychological evaluation report.

CONCLUSION

¶35 We hold that the District Court did not erroneously grant and maintain a temporary emergency order pursuant to § 40-4-220(2)(a)(ii), MCA, without an adequate showing and finding of changed circumstances under §§ 40-4-219(1) and -220(1), MCA. We further hold that the District Court did not abuse its discretion in limiting Mother to supervised visitation, failing to refer this matter to a Family Court Services program pursuant to local rule, or precluding admission of a psychological evaluation report authored by a non-testifying mental health professional.

¶36 Affirmed.

We concur:

LAURIE McKINNON, J.

INGRID GUSTAFSON, J.

JAMES JEREMIAH SHEA, J.

JIM RICE, J.

      The District Court apparently imposed the "final" parenting plan prior to entry of a final judgment dissolving the parties' marriage and adjudicating all other incidents of the marriage. See Order Approving Stipulated Final Parenting Plan , filed December 6, 2016.

      As extended following hearing on August 23, 2017, the protective order referenced, inter alia , a then-pending Justice Court partner/family member assault prosecution against Mother and further barred Mother from having any contact with the child except as approved by the child's counselor.

      In contrast, independent of § 40-4-219, MCA, parents may periodically seek review and modification of a prior parenting plan without proof of a "change in circumstances" if the prior plan expressly provides for such review. See § 40-4-234(2)(f), MCA (periodic review of parenting plan in re contemplated future need for review if provided for in prior parenting plan); In re S.W.B.S. , 2019 MT 1, ¶¶ 12-17, 394 Mont. 52, 432 P.3d 709.

      If the ex parte affidavit showing is facially insufficient to constitute a prima facie showing under § 40-4-220(2)(a)(ii), MCA, nothing in § 40-4-220(2)(b), MCA, prevents a court, in its discretion, from conducting a hearing to determine whether, upon additional evidence, sufficient cause may yet exist to grant the relief under the standards of § 40-4-220(2)(a)(ii), MCA.

      "In appropriate circumstances" in a domestic relations matter, "the [c]ourt may refer the matter to Family Court Services for investigation, report and recommendation regarding custody ... and visitation rights of each child and parent." Montana Eleventh Jud. Dist. Local Rule 8(B).

      The court did not specifically sustain the objection but implicitly did so by not admitting it and, instead, specifically authorizing Mother to question the court-appointed GAL about her knowledge of the subject matter.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Montana, Plaintiff and Appellee, v. Jeremiah James STEVENS, Defendant and Appellant.
    DA 17-0334
    Supreme Court of Montana.
    Submitted on Briefs: January 3, 2019 Decided: February 12, 2019
    For Appellant: Chad Wright, Appellate Defender, Koan Mercer, Assistant Appellate Defender, Kathryn Brautigam, Clinical Law Student, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana Marcia Boris, Lincoln County Attorney, Libby, Montana
   Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Jeremiah James Stevens (Stevens) appeals from the Nineteenth Judicial District Court's denial of his motion to suppress. We affirm.

¶2 We restate the issues on appeal as follows:

1. Whether the District Court erred in its determination that the officers' initial investigation was supported by particularized suspicion.
2. Whether the immediate use of handcuffs amounted to an unconstitutional arrest unsupported by probable cause.
3. Whether the District Court erred in its determination that the arrest was supported by probable cause.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On June 26, 2016, at approximately six a.m., Deputy Sheriff Brandon Holzer (Deputy Holzer) was preparing to transfer a prisoner from the courthouse in Libby, Montana, to a separate facility. Deputy Holzer was outside of the prisoner transport bay door at the north end of the courthouse, when he noticed a person hiding in the bushes across the street from the courthouse. According to Deputy Holzer, the person hiding in the bushes, later identified as Stevens, was "bobbing up and down." Concerned by Stevens' behavior, Deputy Holzer delayed the prisoner transport and called for backup.

¶4 Trooper Trewick arrived to assist Deputy Holzer. The officers approached Stevens on foot with their weapons drawn at their sides. Deputy Holzer ordered Stevens to stand up and show his hands-Stevens cooperated. Deputy Holzer then asked Stevens to turn around, Stevens complied, and Deputy Holzer placed Stevens in handcuffs. Deputy Holzer testified that Stevens appeared "very nervous."

¶5 Deputy Holzer asked Stevens what he was doing in the bushes, to which Stevens responded that he had an open container of alcohol and was attempting to conceal it from Deputy Holzer. Deputy Holzer asked Stevens if he had any weapons on him. Stevens answered that he did not have any weapons, but he was in possession of methamphetamine. Deputy Holzer proceeded to search Stevens and found a container of a white powdery substance, a Fentanyl patch, and a clear plastic container holding a white crystal rock. A field test of the powder and the rock revealed the presence of methamphetamine. Deputy Holzer then placed Stevens under arrest for criminal possession of dangerous drugs.

¶6 Stevens was charged by information with one count of criminal possession of dangerous drugs, a felony, in violation § 45-9-102(4), MCA (2015), and one count of criminal possession of dangerous drugs, a felony, in violation § 45-9-102(6), MCA (2015). Stevens filed a motion to suppress his statements and the drugs on the basis that he was initially detained without reasonable suspicion and arrested without probable cause in violation of the United States and Montana Constitutions. Following an evidentiary hearing, the District Court denied the motion to suppress. Stevens entered into a plea agreement with the State, in which he agreed to plead guilty to one count of criminal possession of dangerous drugs and the State agreed to dismiss the other count. On February 27, 2017, Stevens pleaded guilty to one count of criminal possession of dangerous drugs, in violation of § 45-9-102(6), MCA (2015). On April 10, 2017, Stevens was committed to the Department of Corrections for five years, with two years suspended. Stevens appeals the District Court's denial of his motion to suppress.

STANDARD OF REVIEW

¶7 In reviewing a district court's ruling on a motion to suppress evidence or statements, we determine whether the court's underlying factual findings are clearly erroneous and whether the court correctly interpreted and applied the governing law. State v. Morrisey , 2009 MT 201, ¶ 14, 351 Mont. 144, 214 P.3d 708. A trial court's findings are clearly erroneous if not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if this Court's review of the record leaves us with the firm conviction that a mistake has been made. State v. Clayton , 2002 MT 67, ¶ 8, 309 Mont. 215, 45 P.3d 30.

DISCUSSION

¶8 The Fourth Amendment of the United States Constitution and Article II, Section 11, of the Montana Constitution similarly prohibit unreasonable searches and seizures.

U.S. Const. amend. IV ("no Warrants" for search or seizure "shall issue, but upon probable cause");

Mont. Const. art. II, § 11 ("No warrant to search any place, or seize any person or thing shall issue ... without probable cause"). The fundamental purpose of the prohibition against unreasonable searches and seizures is to protect the privacy and security of individuals. Clayton , ¶ 11. When the legality of a search or seizure has been called into question, the central inquiry is the reasonableness, in light of all circumstances, of the particular governmental invasion of a citizen's personal security. Clayton , ¶ 12 ; Terry v. Ohio , 392 U.S. 1, 19, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968).

¶9 1. Whether the District Court erred in its determination that the officers' initial investigation was supported by particularized suspicion.

¶10 Except under certain recognized exceptions, warrantless searches and seizures of persons are per se unreasonable under the Fourth Amendment and Article II, Section 11, of the Montana Constitution. City of Missoula v. Kroschel , 2018 MT 142, ¶ 10, 391 Mont. 457, 419 P.3d 1208 ; Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). A recognized exception to the warrant requirement is the temporary investigative stop, or the Terry stop, established by the United States Supreme Court in Terry v. Ohio and subsequently codified in Montana at §§ 46-5-401 and -403, MCA. Terry, 392 U.S. at 30, 88 S.Ct. at 1885. Section 46-5-401(1), MCA, provides:

In order to obtain or verify an account of the person's presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person ... has committed, is committing, or is about to commit an offense.

¶11 Further, an officer who has lawfully stopped a person may request the person's name, address, and an explanation of the person's actions, frisk the person, and take other reasonably necessary steps for protection if the officer has reasonable cause to suspect that the person is armed and presently dangerous to the officer. Section 46-5-401(1), (2)(a)-(b), MCA. A stop authorized by § 46-5-401, MCA, may not last longer than is necessary to effectuate the purpose of the stop. Section 46-5-403, MCA.

¶12 The United States Supreme Court has stated that "in determining whether the [investigatory] seizure and search were 'unreasonable' our inquiry is a dual one-whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry , 392 U.S. at 19-20, 88 S.Ct. at 1879. An officer may only initiate a Terry stop if he or she has particularized suspicion that wrongdoing exists. Section 46-5-401(1), MCA. Particularized suspicion is objective data from which an experienced police officer can make certain inferences and a resulting suspicion that the individual is or has been engaged in wrongdoing. State v. Wilson , 2018 MT 268, ¶ 28, 393 Mont. 238, 430 P.3d 77. Relevant considerations include the quantity, substance, quality, and degree of reliability of information known to the officer. Wilson , ¶ 28. The question of whether particularized suspicion exists is a "factually driven inquiry dependent on the totality of the circumstances giving rise to the investigative stop." Clayton , ¶ 19. This standard does not require that an officer be certain, or even correct, that a person is engaged in criminal activity. Wilson , ¶ 28. Yet, particularized suspicion requires more than mere generalized suspicion or an undeveloped hunch of criminal activity. Wilson , ¶ 28.

¶13 Unquestionably, Stevens was entitled to the protection of the Fourth Amendment when he was approached by the officers. Katz , 389 U.S. at 351, 88 S.Ct. at 511 ("the Fourth Amendment protects people, not places"). The issues raised by Stevens are whether the officers' initial investigation was supported by particularized suspicion and whether the use of handcuffs elevated the Terry stop into an unconstitutional arrest.

¶14 Stevens argues that his "mere presence" on the street adjacent to the courthouse did not give Deputy Holzer particularized suspicion to initiate a Terry stop. Stevens' argument, however, misconstrues several key facts. Specifically, he minimizes the fact that "bobbing up and down" in the bushes across from a courthouse at six a.m. may be construed as strange, even suspicious, behavior. Further, Deputy Holzer's concern that Stevens might be attempting to interfere with the prisoner transport was reasonable considering Stevens was trying to conceal himself from Deputy Holzer. At the evidentiary hearing, Deputy Holzer testified that he considered the prisoner transport bay door a "high risk area" and that interference with a prisoner transport "is a factor at all times." Stevens argues that it was unreasonable for Deputy Holzer to suspect Stevens of attempting to interfere with the transport considering Deputy Holzer had never personally encountered such an interference. This argument is not compelling. An officer does not have to personally experience a situation before he or she can appreciate the potential risk involved when such a situation presents itself. "[D]ue weight must be given ... to the specific reasonable inferences [an officer] is entitled to draw from the facts in light of his [or her] experience." Terry , 392 U.S. at 27, 88 S.Ct. at 1883. Deputy Holzer's heightened concerns, in reliance on the totality of the circumstances, surpassed an inarticulate hunch and he was entitled to initiate a Terry stop pursuant to § 46-5-401(1), MCA.

¶15 2. Whether the immediate use of handcuffs amounted to an unconstitutional arrest unsupported by probable cause.

¶16 "Only when [an] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." United States v. Mendenhall , 446 U.S. 544, 552, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980) (quoting Terry , 392 U.S. at 19, n. 16, 88 S.Ct. at 1879, n. 16 ); Clayton , ¶ 12. This standard has been expanded over time and now includes the inquiry of whether, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. State v. Roberts , 1999 MT 59, ¶ 16, 293 Mont. 476, 977 P.2d 974 ; Mendenhall , 446 U.S. at 554, 100 S.Ct. at 1877. Here, a seizure occurred when Stevens was placed in handcuffs. There were two officers present, their weapons were drawn at their sides, and Stevens was placed in handcuffs. Mendenhall , 446 U.S. at 554, 100 S.Ct. at 1877. A reasonable person would not have felt free to leave.

¶17 We agree with Stevens that no probable cause existed to make an arrest when he was initially approached by the officers, for at that time the officers had only a particularized suspicion, not a reasonable belief, that a crime had been, or was about to be, committed. However, we also agree with the State that the officers' display of weapons and use of handcuffs did not amount to an arrest.

¶18 "An arrest is made by an actual restraint of the person to be arrested or by the person's submission to the custody of the person making the arrest." Section 46-6-104(1), MCA. In State v. Thornton , 218 Mont. 317, 708 P.2d 273 (1985), this Court adopted a three-part test to determine whether an arrest occurred. The three elements are: (1) authority to arrest; (2) assertion of the authority with intention to effect an arrest; and (3) restraint of the person arrested. Thornton , 218 Mont. at 322-23, 708 P.2d at 277. Here, the parties do not dispute that the first and third elements have been met. However, the State asserts that the second element cannot be met because Deputy Holzer only intended to effect a Terry stop and not an arrest when he placed Stevens in handcuffs. We agree with the State. Deputy Holzer testified that he placed Stevens in handcuffs before questioning him, "[j]ust for officer safety. Just the fact that he is at [six] a.m. ... hiding in the bushes." Under the circumstances, Stevens' unusual behavior gave the officers reason to suspect that Stevens may pose a threat to their safety. The use of handcuffs provided the officers an opportunity to neutralize any potential threat so they could safely gather more information. Moreover, after handcuffing Stevens, Deputy Holzer asked Stevens why he was hiding in the bushes and whether Stevens was in possession of any weapons. These routine, unobtrusive questions demonstrate that Deputy Holzer's intent was not to arrest Stevens, but instead to conduct an investigatory stop.

¶19 In State v. Stubbs , 270 Mont. 364, 892 P.2d 547 (1995), this Court held that by placing the defendant in handcuffs at gunpoint the officer had executed an arrest, not an investigatory stop, necessitating probable cause. We find Stubbs distinguishable from the case sub judice. Specifically, Stubbs failed to cite both the three-factor test delineated in Thornton and § 46-5-401(2)(b), MCA. Section 46-5-401(2)(b), MCA, explicitly provides that during an investigative stop an officer may, "frisk the person and take other reasonably necessary steps for protection if the officer has reasonable cause to suspect that the person is armed and presently dangerous to the officer or another person present" (emphasis added). The United States Supreme Court has observed that in conducting an investigative stop, a law enforcement officer "should not be denied the opportunity to protect himself from attack by a hostile suspect." Adams v. Williams , 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). Deputy Holzer's use of handcuffs is also consistent with the Court's explanation in Terry :

Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance in their duties.... [W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

Terry , 392 U.S. at 23-24, 88 S.Ct. at 1881. See also State v. Morsette , 201 Mont. 233, 654 P.2d 503 (1982) (holding that officer was justified in using shotgun during the execution of investigatory stop to ensure officer safety).

¶20 We agree with the State that § 46-5-401(2)(b), MCA, permitted the officers to place Stevens in handcuffs to safely effectuate the investigatory stop. The totality of the circumstances confirms that sufficient objective data was available to Deputy Holzer to draw the inference that Stevens posed a safety threat or planned to disrupt the prisoner transport. Deputy Holzer had the requisite particularized suspicion to execute the initial Terry stop and the use of handcuffs did not elevate the investigatory stop into an arrest.

¶21 3. Whether the District Court erred in its determination that the arrest was supported by probable cause.

¶22 Section 46-6-311(1), MCA, provides: "A peace officer may arrest a person when a warrant has not been issued if the officer has probable cause to believe that the person is committing an offense or that the person has committed an offense and existing circumstances require immediate arrest." Probable cause for an arrest exists when the facts and circumstances within the arresting officer's personal knowledge are sufficient to warrant a reasonable person to believe that the suspect has committed an offense. Hulse v. DOJ, Motor Vehicle Div. , 1998 MT 108, ¶ 13, 289 Mont. 1, 961 P.2d 75. "Probable cause cannot be based on an officer's mere suspicion of criminal activity." State v. Ellington , 2006 MT 219, ¶ 16, 333 Mont. 411, 143 P.3d 119.

¶23 Stevens argues that the arrest was made without probable cause, and therefore, all fruits of the search discovered after the flawed arrest must be suppressed. We disagree. During the investigatory stop, while the officers were questioning Stevens, Stevens spontaneously confessed that he was in possession of methamphetamine. At this point, the officers' particularized suspicion ripened into probable cause to arrest. Deputy Holzer lawfully arrested Stevens and conducted a search incident to arrest pursuant to § 46-5-102, MCA. The admission of the drugs and Stevens' statements into evidence did not violate Stevens' constitutional rights.

CONCLUSION

¶24 For the aforementioned reasons, the District Court's denial of Stevens' motion to suppress was not erroneous.

¶25 Affirmed.

We Concur:

LAURIE McKINNON, J.

INGRID GUSTAFSON, J.

JAMES JEREMIAH SHEA, J.

JIM RICE, J.

      "Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person ... or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall , 446 U.S. at 554, 100 S.Ct. 1870.

      Stubbs was overruled on other grounds by State v. Loh , 275 Mont. 460, 914 P.2d 592 (1996).

      Had the officers' initial inquiries not ripened into probable cause, their authority to continue the stop would have expired and the officers would have been required to release Stevens.


text:
    STATE of Montana, Plaintiff and Appellee, v. Jason W. ELLERBEE, Defendant and Appellant.
    DA 17-0059
    Supreme Court of Montana.
    Submitted on Briefs: October 10, 2018 Decided: February 12, 2019
    For Appellant: Chad Wright, Appellate Defender, Kristina L. Neal, Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Martin D. Lambert, Gallatin County Attorney, Erin Murphy, Deputy County Attorney, Bozeman, Montana
   Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Appellant Jason W. Ellerbee appeals the jury verdict and Sentencing Order of the Eighteenth Judicial District Court, Gallatin County, finding Ellerbee guilty of criminal possession of dangerous drugs, in violation of § 45-9-102, MCA. We address the following issues on appeal:

Issue One: Whether Double Jeopardy precluded the State from retrying Ellerbee.
Issue Two: Whether the jury was correctly instructed on the charge of criminal possession of dangerous drugs during Ellerbee's second jury trial.
Issue Three: Whether the District Court abused its discretion by overruling Ellerbee's hearsay objection regarding his traveling companions' conflicting statements to officers during Ellerbee's second jury trial.
Issue Four: Whether cumulative trial error requires reversal.

¶2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 In early 2015, the Missouri River Drug Task Force (Task Force) began investigating Michael Santos after learning that Santos was distributing methamphetamine in Gallatin County. Through a confidential informant, the Task Force learned that Santos would be traveling out of state to obtain methamphetamine. On April 2, 2015, the Task Force applied for and received a search warrant to install a tracking device on Santos's vehicle. In the process of placing the tracking device, a detective with the Task Force observed Santos and Ellerbee occupying the vehicle.

¶4 On April 9, 2015, the tracking device alerted the Task Force that Santos's vehicle had left the Bozeman area. The vehicle stopped at a Wal-Mart in Butte, and then proceeded to Spokane, Washington. From Spokane, the vehicle traveled north to a residence in Elk, Washington, and then returned to Bozeman. Early on the morning of April 10, 2015, the Task Force requested that Montana Highway Patrol stop Santos's vehicle once it reentered Gallatin County. Trooper Erick Fetterhoff observed and followed Santos's vehicle and eventually stopped the vehicle for failing to use a turn signal and for having a cracked windshield.

¶5 Once Fetterhoff approached the vehicle, he observed that Santos was driving, Ellerbee was asleep in the backseat, and Rebecca Phillips was in the front passenger seat. Fetterhoff noted that Santos and Phillips were both nervous and uncomfortable in dealing with him. Fetterhoff asked the pair where the three of them were going. Phillips responded that they were returning to Bozeman from Spokane after visiting a relative. After being removed from the vehicle to conduct a pat-down search, Santos told Fetterhoff they had visited a close friend near Spokane named "Sandy." When Fetterhoff asked Phillips for the name of the relative she had visited, she initially could not provide a name before offering that it was "Sandy."

Phillips later clarified to officers assisting Fetterhoff that "Sandy" was Ellerbee's aunt.

¶6 Fetterhoff issued Santos a warning for the traffic offenses and cited Phillips for not having a valid insurance card in the vehicle. Fetterhoff told Santos and Phillips that they were free to leave, but that he did not believe their stories and that he suspected there were drugs in the car. Santos then admitted to having marijuana in his coat pocket, a methamphetamine pipe in the vehicle, and that Phillips had recently consumed methamphetamine. Fetterhoff seized the vehicle and obtained a search warrant.

¶7 After the vehicle was seized, Ellerbee woke up and confirmed his identity to officers assisting Fetterhoff. Ellerbee corrected Phillips that "Sandy" was not his aunt, but was instead just a friend. After running Ellerbee's name, officers assisting Fetterhoff arrested Ellerbee on outstanding warrants.

¶8 During the search of the vehicle, officers discovered twenty-seven grams of methamphetamine stowed under the rear seat. Officers additionally found a receipt from the Butte Wal-Mart for a $ 900 MoneyGram from Santos to a "Sandy Trower" and drug paraphernalia used for ingesting methamphetamine. The Task Force also applied for and received a search warrant authorizing a search of Ellerbee's cell phone, which was seized during his arrest. On Ellerbee's phone, officers found text messages to a "Sandy Trower." The sender, identifying as "Jason," indicated that Ellerbee was going to travel to meet with "Sandy" about obtaining an ounce of an unidentified substance. There were also texts discussing a MoneyGram, the MoneyGram's confirmation number, and that the MoneyGram would be sent through a Wal-Mart. The MoneyGram confirmation number matched the receipt for the MoneyGram located inside the vehicle.

¶9 On September 14, 2015, the State charged Ellerbee with one count of criminal possession of dangerous drugs with intent to distribute, a felony in violation of § 45-9-103, MCA. On March 29-30, 2016, the case proceeded to a jury trial. At the close of the State's case, Ellerbee's counsel moved for a directed verdict based on insufficiency of the evidence. The District Court denied the motion and submitted the case to the jury. The jury was unable to reach a verdict and the District Court declared a mistrial.

¶10 On April 26, 2016, the State amended the Information to charge Ellerbee with criminal possession of dangerous drugs, a felony in violation of § 45-9-102, MCA. On August 8-9, 2016, the District Court conducted a second jury trial on the amended charge. The State presented the same witnesses and admitted the same evidence.

¶11 During Ellerbee's second trial, Ellerbee's counsel objected on hearsay grounds to officer testimony repeating Santos's and Phillips's conflicting statements about "Sandy" during the traffic stop. The District Court overruled the objection, finding that the statements were offered to show inconsistent statements made by Santos and Phillips and not for the truth of the matter asserted. The District Court provided the jury with a cautionary instruction that the pair's statements were being admitted for this limited purpose. At the close of trial, Ellerbee also requested that a "mere presence" jury instruction be given, which the District Court refused.

¶12 On August 9, 2016, the jury found Ellerbee guilty of criminal possession of dangerous drugs. The District Court designated Ellerbee a persistent felony offender and sentenced him to five years in the Montana State Prison.

STANDARD OF REVIEW

¶13 We review a district court's denial of a motion for a directed verdict de novo. State v. McAlister , 2016 MT 14, ¶ 6, 382 Mont. 129, 365 P.3d 1062 (citing State v. Swann , 2007 MT 126, ¶¶ 18-19, 337 Mont. 326, 160 P.3d 511 ). We review the sufficiency of the evidence in a criminal case to determine whether "after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Polak , 2018 MT 174, ¶ 34, 392 Mont. 90, 422 P.3d 112 (citing State v. Rosling , 2008 MT 62, ¶ 35, 342 Mont. 1, 180 P.3d 1102 ; State v. Roedel , 2007 MT 291, ¶ 35, 339 Mont. 489, 171 P.3d 694 ).

¶14 We review a district court's decision regarding jury instructions for an abuse of discretion. State v. Kaarma , 2017 MT 24, ¶ 7, 386 Mont. 243, 390 P.3d 609 (citing Ammondson v. Nw. Corp. , 2009 MT 331, ¶ 30, 353 Mont. 28, 220 P.3d 1 ). "A district court abuses its discretion if it acts arbitrarily without conscientious judgment or exceeds the bounds of reason resulting in substantial injustice." Kaarma , ¶ 6 (citing Ammondson , ¶ 30 ).

¶15 We review a district court's evidentiary rulings for abuse of discretion. Kaarma , ¶ 11 (citing State v. Huerta , 285 Mont. 245, 254, 947 P.2d 483, 489 (1997) ). District courts have "broad discretion to determine whether evidence is relevant and admissible." Kaarma , ¶ 11 (citing State v. Duffy , 2000 MT 186, ¶ 43, 300 Mont. 381, 6 P.3d 453 ).

DISCUSSION

¶16 Issue One: Whether Double Jeopardy precluded the State from retrying Ellerbee.

¶17 Article II, Section 17 of the Montana Constitution and the Due Process Clause of the United States Constitution protect the accused "against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." State v. Davis , 2012 MT 129, ¶ 11, 365 Mont. 259, 279 P.3d 162 ; Statev. Newman , 2005 MT 348, ¶ 19, 330 Mont. 160, 127 P.3d 374 (quoting In re Winship , 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970) ). A trial court is authorized to direct a verdict of acquittal where there is insufficient evidence, as a matter of law, to support a conviction. Section 46-16-403, MCA. When proof beyond a reasonable doubt has not been established, a district court may dismiss a criminal action at the close of the prosecution's evidence. Section 46-16-403, MCA ; Davis , ¶ 11.

¶18 It is a crime to possess any dangerous drug, including methamphetamine. Section 45-9-102, MCA. "Possession" is the knowing control of anything for a sufficient time to be able to terminate control. Section 45-2-101(59), MCA. "Constructive possession" occurs when the "accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another." State v. Caekaert , 1999 MT 147, ¶ 10, 295 Mont. 42, 983 P.2d 332 (citing State v. Meader , 184 Mont. 32, 43, 601 P.2d 386, 392 (1979) ).

¶19 The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." The Montana Constitution provides similar protections, stating "[n]o person shall be again put in jeopardy for the same offense previously tried in any jurisdiction." Mont. Const. art. II, § 25. We have interpreted Article II, Section 25 as providing criminal defendants with greater protection against double jeopardy than the United States Constitution. State v. Cline , 2013 MT 188, ¶ 8, 371 Mont. 18, 305 P.3d 55 (citing State v. Cech , 2007 MT 184, ¶ 13, 338 Mont. 330, 167 P.3d 389 ).

¶20 Ellerbee contends that during the first trial, the State failed to introduce sufficient evidence that Ellerbee knew about and possessed the methamphetamine in the vehicle or intended to distribute methamphetamine. Ellerbee argues that his conviction for criminal possession must be vacated on double jeopardy grounds because it would constitute double jeopardy for the State to proceed forward with the same evidence on an amended charge had the District Court properly granted his Motion for Directed Verdict based on insufficient evidence during the first trial.

¶21 The State responds that Ellerbee's double jeopardy claim is without merit because the District Court did not err by denying Ellerbee's Motion for Directed Verdict in the first jury trial, and that in any event, a mistrial based upon a jury's inability to reach a verdict does not give rise to a double jeopardy claim. Because we agree with the State's argument that the District Court did not err by denying Ellerbee's Motion for Directed Verdict in the first trial, we decline to address the substance of Ellerbee's Double Jeopardy argument.

¶22 The District Court properly denied Ellerbee's Motion for Directed Verdict based on insufficient evidence during his first trial. Contrary to Ellerbee's argument, the State's case was based upon more than just Ellerbee's presence in the vehicle at the time of the traffic stop. The State presented testimony that Santos was a person of interest to the Task Force and that Ellerbee was with Santos when the tracking device was placed on the vehicle. The State also presented evidence showing Ellerbee, along with Santos and Phillips, drove from Bozeman to Elk, Washington to visit Sandy and stopped briefly before returning to Bozeman. Finally, the State presented incriminating text messages between Ellerbee and Sandy indicating a transaction was to take place through a MoneyGram from Walmart, presented the receipt that had been located in the vehicle from that transaction, and presented additional text messages that indicated Ellerbee was involved in drug transactions. The State presented more than sufficient evidence from which a rational trier of fact could have found beyond a reasonable doubt that Ellerbee knew about the methamphetamine under his passenger seat, was in possession of the methamphetamine, and had intended to distribute the methamphetamine. See § 46-16-403, MCA ; Polak , ¶ 34 ; Rosling , ¶ 35 ; Roedel , ¶ 35 ; see also § 45-9-103, MCA ; § 45-2-101(59), MCA ; Caekaert , ¶ 10.

¶23 The District Court did not err in denying Ellerbee's Motion for Directed Verdict during his first jury trial. See § 46-16-403, MCA ; Davis , ¶ 11 ; Newman , ¶ 19. There was sufficient evidence for the District Court to submit the case to the jury to determine if the elements of criminal possession of dangerous drugs with the intent to distribute were met. See § 45-9-103, MCA ; Polak , ¶ 34 ; Rosling , ¶ 35 ; Roedel , ¶ 35.

¶24 Issue Two: Whether the jury was correctly instructed on the charge of criminal possession of dangerous drugs during Ellerbee's second jury trial.

¶25 A district court has broad discretion in formulating jury instructions. Polak , ¶ 25 (citing State v. Spotted Eagle , 2010 MT 222, ¶ 6, 358 Mont. 22, 243 P.3d 402 ). The jury instructions in criminal cases must fully and fairly instruct the jury on the applicable law.

Polak , ¶ 25 (citing Kaarma , ¶ 7 ; State v. English , 2006 MT 177, ¶ 39, 333 Mont. 23, 140 P.3d 454 ). A district court fulfills its duty to instruct the jury on each theory that finds support in the record by giving instructions which accurately and correctly state the law applicable in a case. Kaarma , ¶ 26 (citations omitted); see State v. Sheehan , 2017 MT 185, ¶ 33, 388 Mont. 220, 399 P.3d 314. "[W]hen conflicting evidence is presented, the district court must provide jury instructions on both theories supported by the evidence." Polak , ¶ 25 (quoting Kaarma , ¶ 25 ). To constitute reversible error, any mistake in instructing the jury must prejudicially affect a defendant's substantial rights. Polak , ¶ 25 ; Kaarma , ¶ 7 (citing Spotted Eagle , ¶ 6 ).

¶26 In Ellerbee's second jury trial, the District Court instructed the jury that to convict Ellerbee of criminal possession of dangerous drugs, the State had to prove the following elements:

1. That the Defendant possessed the dangerous drug methamphetamine;
AND
2. That Ellerbee acted purposely or knowingly.

The District Court additionally instructed the jury on the respective definitions of "knowingly," "dangerous drugs," and "possession."

¶27 Based on Ellerbee's theory of the case-that Ellerbee was only a passenger in the vehicle and the State failed to prove he had possession over the drugs-Ellerbee requested that a "mere presence" instruction be given. Ellerbee's proposed instruction stated:

Mere presence at the scene of the crime and knowledge that a crime is being committed are not sufficient to establish that the defendant, Jason Ellerbee, was involved in the crime. To be responsible, you must find beyond a reasonable doubt that Jason Ellerbee was a participant and not merely a knowing spectator.

The District Court denied Ellerbee's request for a "mere presence" instruction, determining that it was only appropriate in accountability cases.

¶28 On appeal, Ellerbee argues that since his defense strategy at trial was that Ellerbee was "in the wrong place at the wrong time," the "mere presence" instruction was required. Ellerbee primarily argues that under State v. Chafee , 2014 MT 226, 376 Mont. 267, 332 P.3d 240, and Fleming v. State , 373 Md. 426, 818 A.2d 1117 (2003), a refusal to give a "mere presence" instruction fails to adequately inform the jury of the exercise of dominion, control, and knowledge required for criminal possession. Ellerbee contends that he was prejudiced by the District Court's denial of his "mere presence" instruction.

¶29 The State responds that Ellerbee offered no meaningful theory to the District Court about why it should instruct on "mere presence." The State argues that the circumstances of Chafee are inapposite to Ellerbee's case and fail to provide a basis for a "mere presence" instruction. The State argues Ellerbee's cited cases from other jurisdictions are likewise distinguishable from the facts and circumstances of this case. We agree.

¶30 In Chafee , the defendant was charged with arson by accountability after she had been present when her boyfriend broke into a car and lit it on fire. Chafee , ¶ 7. Defense counsel failed to offer a "mere presence" jury instruction after having argued that mere presence was insufficient to establish that the defendant was involved in the crime. Chafee , ¶ 15. We held that defense counsel's failure to offer such a "potentially beneficial instruction" constituted deficient performance. Chafee , ¶ 21. We explained that "mere presence at the scene of a crime is not enough to establish accountability, [although] the accused need not take an active part in any overt criminal acts to be adjudged criminally liable for the acts." Chafee , ¶ 20 (citing State v. Miller , 231 Mont. 497, 511, 757 P.2d 1275, 1284 (1988) (quoting State v. Bradford , 210 Mont. 130, 142, 683 P.2d 924, 930 (1984) ).

¶31 In Fleming , officers arrested the defendant after finding a bag filled with vials of cocaine near the defendant. Fleming , 818 A.2d at 1120. At the close of evidence in the defendant's trial, defense counsel asked the court to instruct the jury on mere presence, which the trial court refused. Fleming , 818 A.2d at 1120. The defendant was later convicted of possession with intent to distribute. Fleming , 818 A.2d at 1120. The Maryland Court of Appeals reversed and concluded that the evidence presented at trial was sufficient to require the "mere presence" instruction. Fleming , 818 A.2d at 1121. The Maryland Court of Appeals determined that the trial court failed to explain to the jury that "along with the requirement of the ability to exercise dominion and control, knowledge is an element of the offense of possession of a controlled dangerous substance." Fleming , 818 A.2d at 1125 (emphasis added and citation omitted). "The purpose of a mere presence instruction ... is to inform the jury that simply because the defendant was in close proximity to the drugs in question, [the jury] may not infer knowledge and intent to exercise dominion and control from that fact alone." Fleming , 818 A.2d at 1125 (citation omitted).

¶32 The District Court did not abuse its discretion by denying Ellerbee's request for a "mere presence" instruction. The District Court properly instructed the jury that Ellerbee had to knowingly possess the drugs. The District Court also instructed the jury on the respective definitions of "knowingly," "possession," and "dangerous drugs"-sufficiently covering the requirements for a conviction on criminal possession.

¶33 The District Court fully and fairly instructed the jury on the applicable law on criminal possession of dangerous drugs. See Polak , ¶ 25 ; Kaarma , ¶ 26 ; Sheehan , ¶ 33. The District Court had the authority to instruct in this way, rather than give Ellerbee's "mere presence" instruction, because it is afforded broad discretion in formulating and approving jury instructions. See Polak , ¶ 25 ; Kaarma , ¶ 7 ; Spotted Eagle , ¶ 6. Based upon the evidence presented at trial, and the instructions provided, Ellerbee cannot demonstrate that the District Court's refusal to give his "mere presence" instruction affected his substantial rights and constituted reversible error. See Polak , ¶ 25 ; Kaarma , ¶ 7 ; Spotted Eagle , ¶ 6.

¶34 Issue Three: Whether the District Court abused its discretion by overruling Ellerbee's hearsay objection regarding his traveling companions' statements to officers during Ellerbee's second jury trial.

¶35 Montana Rule of Evidence 801(c) provides, "[h]earsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." See State v. Mont. Ninth Judicial Dist. Court , 2014 MT 188, ¶ 9, 375 Mont. 488, 329 P.3d 603 (citing State v. Losson , 262 Mont. 342, 348, 865 P.2d 255, 258-59 (1993) ). Hearsay is not admissible in court, except as otherwise provided by statute, the Montana Rules of Evidence, or other rules applicable in the courts of this State. See Mont. Ninth Judicial Dist. Court , ¶ 9 (citing M. R. Evid. 802 ; State v. Hardman , 2012 MT 70, ¶ 31, 364 Mont. 361, 276 P.3d 839 ). A statement is hearsay "only when the immediate inference the proponent wants to draw is the truth of the assertion on the statement's face." City of Billings v. Nolan , 2016 MT 266, ¶ 28, 385 Mont. 190, 383 P.3d 219 (quoting Siebken v. Voderberg , 2015 MT 296, ¶ 22, 381 Mont. 256, 359 P.3d 1073 ).

¶36 We have held that a district court abused its discretion when it admitted officer testimony regarding a defendant's passengers' inconsistent statements for the truth of the matter asserted. State v. Runs Above , 2003 MT 181, ¶ 23, 316 Mont. 421, 73 P.3d 161. In Runs Above , the defendant was accused of attempting to break into a car that was disabled on the side of the road. Runs Above , ¶¶ 5-11. At trial, an officer who interviewed two of the defendant's passengers repeated the passengers' inconsistent statements concerning why they were present at the disabled vehicle with the defendant. Runs Above , ¶ 18. The district court ruled that neither of the passengers' statements were offered for the truth of the matter asserted. Runs Above , ¶ 19. We reversed and held that the statements amounted to inadmissible hearsay because they had been offered to prove that the defendant was attempting to break into the car. Runs Above , ¶ 21.

¶37 During Ellerbee's second trial, the District Court allowed officer testimony concerning Santos's and Phillips's conflicting statements regarding their relationship to Sandy over Ellerbee's hearsay objection. Ellerbee argues in this appeal that under Runs Above , the District Court abused its discretion in admitting the officer testimony. Ellerbee argues the statements were offered for the truth of the matter asserted: to substantiate that Ellerbee, Santos, and Phillips destination in Spokane was Sandy's house to obtain methamphetamine, and that Sandy was connected to the texts on Ellerbee's phone.

¶38 The State argues that Runs Above is distinguishable, and that the District Court did not abuse its discretion in admitting the officer's testimony. The State argues that the statements were relevant for their inherent inconsistencies, and not because they went to the truth of the matter asserted. The State argues that because it did not need to prove that Sandy was a casual friend, a close friend, or a family member, the statements were not offered for the truth of the matter asserted. We agree.

¶39 Santos's and Phillips's conflicting statements were not offered for the truth of the matter asserted. The plain meaning of Santos's and Phillips's statements concerned whether Sandy was a family member or close friend of Ellerbee, Santos, and Phillips and not whether the trio had met with Sandy in Spokane to purchase methamphetamine. See Nolan , ¶ 28 ; Siebken , ¶ 22. Therefore, Santos's and Phillips's statements regarding their relationship to Sandy constituted nonhearsay and were properly admitted. See M. R. Evid. 801(c) ; Mont. Ninth Judicial Dist. Court , ¶ 9 ; Runs Above , ¶¶ 21-23. The District Court did not abuse its discretion in admitting the statements. See Kaarma , ¶ 11 ; Duffy , ¶ 43.

¶40 Issue Four: Whether cumulative trial error requires reversal.

¶41 Where individual errors would be insufficient alone to serve as a basis for reversal, the sum of those errors can nevertheless serve as a basis for reversal under the cumulative error doctrine. State v. Cunningham , 2018 MT 56, ¶ 32, 390 Mont. 408, 414 P.3d 289 (citing Kills on Top v. State , 279 Mont. 384, 392, 928 P.2d 182, 187 (1996) ). The cumulative error doctrine requires reversal where numerous errors, "when taken together, have prejudiced a defendant's right to a fair trial." Cunningham , ¶ 32 (quoting Hardman , ¶ 35 ).

¶42 Ellerbee argues that the District Court committed multiple errors across his two trials, which taken together, warrant reversal in this matter. The State argues that since there was no error in either of Ellerbee's trials, the cumulative error doctrine does not apply.

¶43 Ellerbee fails to establish that the District Court erred during either of his trials. The District Court correctly denied Ellerbee's Motion for Directed Verdict, properly exercised its discretion in refusing the "mere presence" jury instruction, and the admission of Santos's and Phillips's inconsistent statements about Sandy did not constitute hearsay. Therefore, there was no cumulative error or resulting prejudice to Ellerbee's right to a fair trial. See Cunningham , ¶ 32 ; Hardman , ¶ 35 ; Kills on Top , 279 Mont. at 392, 928 P.2d at 187.

CONCLUSION

¶44 The District Court properly exercised its discretion in denying Ellerbee's Motion for Directed Verdict. The District Court correctly instructed the jury on the charge of criminal possession of dangerous drugs, and did not abuse its discretion by denying Ellerbee's requested instruction on "mere presence." The District Court properly admitted Santos's and Phillips's statements regarding their relationship to Sandy. There was no cumulative error that would require reversal of Ellerbee's conviction. We affirm.

We concur:

MIKE McGRATH, C.J.

BETH BAKER, J.

LAURIE McKINNON, J.

JIM RICE, J.

      "Although [the defendant] frames the issue as a double jeopardy issue under Article II, Section 25 of the Montana Constitution, we have repeatedly recognized that courts should avoid constitutional issues whenever possible." State v. Russell , 2008 MT 417, ¶ 19, 347 Mont. 301, 198 P.3d 271 (citation and internal quotations omitted).

      The District Court instructed the jury that possession was defined as:
      Possession means the knowing control of anything for a sufficient time to be able to terminate control. Possession of dangerous drugs may be either "actual or constructive." Actual possession means that the Defendant had personal custody of the drugs. Constructive possession means that the drugs are not in the actual physical possession, but that the Defendant has dominion and control over the drugs or the joint dominion and control of the drugs with another.
      (Emphasis added).


text:
    CITY OF MISSOULA, Plaintiff and Appellee, v. Christine Lynne SHUMWAY, Defendant and Appellant,
    DA 17-0745
    Supreme Court of Montana.
    Submitted on Briefs: October 10, 2018 Decided: February 12, 2019
    For Appellant: Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana, Jim Nugent, Missoula City Attorney, Carrie L. Garber, Senior Deputy City Attorney, Missoula, Montana
   Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Christine Lynne Shumway (Shumway) appeals an order from the Fourth Judicial District Court, Missoula County, affirming her convictions for two counts of criminal possession of drug paraphernalia in the Missoula City Municipal Court. We affirm.

¶2 Shumway presents the following issues for review, which we restate as:

1. Did Shumway bear the burden of proving she fit under a statutory exception for criminal possession of drug paraphernalia for individuals in compliance with the Medical Marijuana Act?
2. Did sufficient evidence support Shumway's convictions of criminal possession of drug paraphernalia?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On September 24, 2016, City of Missoula Police Officer Nathan Mattix (Mattix) responded to a call at a Missoula Walmart where employees held two individuals they suspected of shoplifting, one of which was Shumway. Mattix eliminated Shumway as a shoplifting suspect but arrested her after he discovered she had outstanding warrants.

¶4 During the arrest, Shumway told Mattix that she had two glass "marijuana pipes" in her purse but that she had a Montana Marijuana Act (MMA) registry identification card (Registry Card). However, Shumway did not provide Mattix with a Registry Card, and Mattix did not uncover any evidence Shumway in fact possessed one. Mattix cited Shumway with two counts of criminal possession of drug paraphernalia under § 45-10-103, MCA.

¶5 At trial, the City introduced the two glass pipes into evidence, and Mattix confirmed they were the same pipes he seized from Shumway. He confirmed that based on his inspection of the glass pipes, he determined they contained burned marijuana residue. From his observations, he inferred each pipe had been previously used to consume marijuana. Shumway did not testify or otherwise present evidence.

¶6 Section 45-10-103, MCA, provides an exception from arrest and prosecution for criminal possession of marijuana-related drug paraphernalia for individuals who possess a valid Registry Card and are in compliance with the MMA (MMA Exception). The Municipal Court held Shumway needed to show proof she had a valid Registry Card before the statute's MMA Exception could apply to her. Shumway did not offer any such proof. Therefore, based on Mattix's testimony, the glass pipes with burned marijuana residue, and Shumway's failure to provide proof that she possessed a valid Registry Card, the Municipal Court found Shumway guilty of both counts of criminal possession of drug paraphernalia.

¶7 Shumway appealed to the District Court. The District Court affirmed her convictions and held Shumway bore the burden of proving the MMA Exception applied to her. She appeals now.

STANDARD OF REVIEW

¶8 "District courts serve as intermediate appellate courts for cases tried in municipal courts." City of Helena v. Grove , 2017 MT 111, ¶ 4, 387 Mont. 378, 394 P.3d 189. We review district court appellate decisions under the applicable standard of review as if the defendant originally appealed to this Court. Grove , ¶ 4.

¶9 We review a trial court's statutory interpretation to determine whether the interpretation is correct. State v. Sutton , 2018 MT 143, ¶ 11, 391 Mont. 485, 419 P.3d 1201. "[W]hen interpreting statutes within an act, we interpret individual sections of the act in a manner that ensures coordination with the other sections of the act." Sutton , ¶ 11 (quoting State v. Pirello , 2012 MT 155, ¶ 16, 365 Mont. 399, 282 P.3d 662 ). We review de novo a district court's conclusion as to whether sufficient evidence exists to support a trial court's verdict. Sutton , ¶ 10.

DISCUSSION

¶10 1. Did Shumway bear the burden of proving she fit under a statutory exception for criminal possession of drug paraphernalia for individuals in compliance with the Medical Marijuana Act?

¶11 Shumway argues that the City bore the burden of proving she was not in compliance with the MMA, which would have exempted her from prosecution under § 45-10-103, MCA. Pointing to the record's lack of proof about whether she did or did not possess a valid Registry Card, Shumway argues the City failed to meet that burden. The City argues Shumway bore the burden of proving the MMA Exception applied to her because the exception is not an element of criminal possession of drug paraphernalia.

¶12 Section 45-10-103, MCA, which criminalizes possession of drug paraphernalia, states, "Except as provided in [the MMA], it is unlawful for a person ... to possess with intent to use drug paraphernalia to ... inhale, or otherwise introduce into the human body a dangerous drug." Section 45-10-103, MCA. Section 50-32-222(4)(x), MCA, defines marijuana as a dangerous drug. Through the MMA, however, the Legislature created an exception from arrest and prosecution for marijuana-related crimes for individuals who comply with the MMA's regulatory system. Sutton , ¶ 14 ; see §§ 50-46-301 to -345, MCA.

¶13 Pursuant to the MMA, the Department of Public Health and Human Services issues Registry Cards to qualifying individuals and maintains a confidential list of the individuals who possess them. Sections 50-46-303(9), -307, MCA. An individual who obtains a valid Registry Card is generally exempt from prosecution for marijuana-related crimes so long as she obtained the Registry Card before arrest; a valid Registry Card entitles her to a rebuttable presumption that she is using or possessing marijuana in compliance with the MMA. Section 50-46-319(2), (7), (8), MCA. However, a registered cardholder must keep her Registry Card in her immediate possession at all times and must display it to law enforcement upon demand. Section 50-46-317, MCA. Registry Cards also have expiration dates-the MMA does not protect an individual with an expired Registry Card from prosecution for marijuana-related crimes. Sections 50-46-302(19), -303(7), MCA.

¶14 In any criminal case, "a defendant who relies upon an exception to a statute made by a proviso or distinct clause, whether in the same section of the statute or elsewhere, has the burden of establishing and showing that he comes within the exception." United Statesv. Guzman-Mata , 579 F.3d 1065, 1073 (9th Cir. 2009) (quoting United States v. Freter , 31 F.3d 783, 788 (9th Cir. 1994) ); see McKelvey v. United States , 260 U.S. 353, 357, 43 S.Ct. 132, 134, 67 L.Ed. 301 (1922) (confirming that, with regard to an exception made by a proviso or other distinct clause, "it is incumbent on one who relies on such an exception to set it up and establish it"); State v. Karathanos , 158 Mont. 461, 467, 493 P.2d 326, 329 (1972) (holding the State does not need to negate an exception contained in a statute, but rather, "such exception is matter to be asserted in defense"); State v. Wood , 53 Mont. 566, 572, 165 P. 592, 594 (1917) (holding the State only needs to negate an exception when the exception is an element of the crime); see also People v. Close , 238 Ill.2d 497, 345 Ill.Dec. 620, 939 N.E.2d 463, 469 (2010) ("[I]f the exception, instead of being a part of the description of the offense, merely withdraws certain acts or certain persons from the operation of the statute, it need not be negatived [by the State]...."); State v. Valinski , 254 Conn. 107, 756 A.2d 1250, 1260 (2000) ("[W]here exceptions to a prohibition in a criminal statute are situated separately from the enacting clause, the exceptions are to be proven by the defense ." (emphasis in original)).

¶15 Contrary to Shumway's arguments, nothing in the plain language of § 45-10-103, MCA, requires the State to prove a defendant does not have a valid Registry Card as an element of criminal possession of drug paraphernalia. Likewise, nothing in the plain language of the MMA requires the State to prove a defendant does not have a valid Registry Card in order to prosecute her for marijuana-related crimes. Noncompliance with the MMA only exposes an individual-even one whose compliance may have otherwise qualified her for an exemption-to prosecution for marijuana-related crimes.

¶16 The statement "[e]xcept as provided in [the MMA]" is a separate and distinct clause from the statutory elements of criminal possession of drug paraphernalia. See § 45-10-103, MCA. The MMA Exception is not an element of criminal possession of drug paraphernalia, and it does not influence or alter the statutory elements of the crime. See Freter , 31 F.3d at 788-89. Instead, the MMA Exception narrowly exempts a certain class of persons from arrest and prosecution-those in compliance with the MMA.

¶17 Therefore, to avail herself of the MMA Exception under § 45-10-103, MCA, Shumway bore the burden of establishing and showing she came within the exception. See Guzman-Mata , 579 F.3d at 1073. However, at trial, Shumway presented no evidence of whether she had a valid Registry Card and whether she was in compliance with the MMA. She thus failed to establish or show she came within the MMA Exception to § 45-10-103, MCA.

¶18 Shumway argues our holding in State v. Johnson , 2012 MT 101, ¶ 30, 365 Mont. 56, 277 P.3d 1232, is dispositive because we stated that to support Johnson's particular conviction for marijuana possession, "the State had to show that Johnson was not shielded from prosecution by the MMA, and that she possessed a dangerous drug." However, Johnson is distinguishable. Johnson possessed a valid Registry Card and presented it to law enforcement, which established she was entitled to the MMA Exception to § 45-10-103, MCA. Johnson , ¶ 5. The MMA Exception, however, did not entirely preclude her eventual conviction for criminally possessing marijuana; rather, it only entitled her to a rebuttable presumption that she possessed marijuana in compliance with the MMA. See § 50-46-319(8), MCA. Because Johnson possessed a valid Registry Card, we held that to convict her, the State had to rebut the presumption that her marijuana possession complied with the requirements of the MMA. The State successfully did so: it provided evidence that Johnson's possession of marijuana was noncompliant with the MMA because "she did not obtain the marijuana in her possession from her registered caregiver." Johnson , ¶ 32.

¶19 Unlike Johnson, Shumway never provided any evidence she had a valid Registry Card. Therefore, she was not entitled to a rebuttable presumption that she possessed marijuana-related drug paraphernalia in compliance with the MMA, and the City had no presumption to rebut. Consequently, to convict Shumway, the City only needed to prove that she purposely or knowingly possessed with intent to use drug paraphernalia to inhale a dangerous drug. Section 45-10-103, MCA. The Municipal Court correctly held Shumway bore the burden of establishing and showing she came within the MMA Exception. The District Court did not err by affirming the Municipal Court's holding.

¶20 2. Did sufficient evidence support Shumway's convictions of criminal possession of drug paraphernalia?

¶21 Shumway further argues the City failed to provide sufficient evidence that she intended to use the drug paraphernalia to inhale a dangerous drug. We disagree. When reviewing whether sufficient evidence exists to support a trial court's verdict, "we view the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt." Sutton , ¶ 10. We review the verdict only to determine whether sufficient evidence exists to support it, not whether the evidence could have supported a different result. Sutton , ¶ 10.

¶22 Sufficient evidence supports Shumway's convictions. Through Mattix's testimony, the City established: (1) Shumway told Mattix she had two "marijuana pipes" in her purse; (2) Mattix confiscated the pipes; and (3) Mattix observed the pipes contained burned marijuana residue. The City further admitted the marijuana pipes into evidence after Mattix testified they were the same pipes he confiscated from Shumway.

¶23 When viewing the evidence in the light most favorable to the City, we conclude a rational trier of fact (here, the Municipal Court) could have found all the essential elements of criminal possession of drug paraphernalia beyond a reasonable doubt. A rational trier of fact could have inferred Shumway's intent to use the pipes to inhale marijuana based on Shumway's admission to Mattix that she had "marijuana pipes" in her purse and Mattix's observation of the marijuana residue within them. Thus, a rational trier of fact could have concluded beyond a reasonable doubt that Shumway possessed the glass pipes with intent to use them to inhale marijuana. The District Court did not err in concluding sufficient evidence supported Shumway's convictions.

CONCLUSION

¶24 Because Shumway relied upon the MMA Exception-an exception to § 45-10-103, MCA, made by a distinct clause-she bore the burden of establishing and showing she came within the exception. Shumway failed to show she possessed a Registry Card and was in compliance with the MMA. Therefore, she was not entitled to a protection from prosecution through the MMA Exception under § 45-10-103, MCA. Moreover, sufficient evidence supports her convictions of criminal possession of drug paraphernalia. The District Court correctly affirmed Shumway's Municipal Court convictions. We affirm.

We concur:

MIKE McGRATH, C.J.

INGRID GUSTAFSON, J.

BETH BAKER, J.

JAMES JEREMIAH SHEA, J.

DIRK M. SANDEFUR, J.

JIM RICE, J.

      Shumway argues the City convinced the Municipal Court to shift the burden to prove an affirmative defense that Shumway has a valid Registry Card. An affirmative defense, however, is "one that admits the doing of the act charged, but seeks to justify, excuse or mitigate it." State v. Daniels , 2011 MT 278, ¶ 15, 362 Mont. 426, 265 P.3d 623 (quoting State v. Nicholls , 200 Mont. 144, 150, 649 P.2d 1346, 1350 (1982) ). There is no need for an affirmative defense when the conduct is not unlawful in the first instance; an affirmative defense is necessary only when the charged conduct is unlawful but the unlawful conduct is excused by, for example, "compulsion, entrapment, [or] justifiable use of forc...." Section 46-15-323(2), MCA. Here, the MMA does not provide for an affirmative defense; the MMA is not one of the enumerated affirmative defenses in § 46-15-323, MCA ; and Shumway has not provided notice or otherwise indicated she is raising the MMA as an affirmative defense. Notably, the MMA once provided an explicit affirmative defense for a defendant charged with any criminal offense involving marijuana if she obtained an after-the-fact opinion from a physician that the potential benefits of medical marijuana would likely outweigh the health risks for the defendant. The Legislature, however, removed this affirmative defense in 2011. 2011 Mont. Laws 1807. The existing version of the MMA makes no reference to an affirmative defense.


text:
    Tami ZORNEK, Appellant, v. Samuel ZORNEK, Respondent.
    No. 77985
    Supreme Court of Nevada.
    FILED FEBRUARY 15, 2019
    Dismissed.


text:
    Nell MCDOWELL, Appellant, v. The SALVATION ARMY, Respondent.
    No. 76804
    Supreme Court of Nevada.
    FILED FEBRUARY 13, 2019
    Dismissed.


text:
    SATICOY BAY LLC, SERIES 346 S MILAN ST., Appellant, v. METLIFE HOME LOANS, LLC, Respondent.
    No. 76908
    Supreme Court of Nevada.
    FILED FEBRUARY 13, 2019
    Dismissed.


text:
    FLAGSTAR BANK, FSB, Appellant, v. LN MANAGEMENT LLC SERIES 6152 CORBIN AVE, Respondent.
    No. 75878
    Supreme Court of Nevada.
    FILED FEBRUARY 13, 2019
    Dismissed.


text:
    The STATE of Nevada, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Valerie Adair, District Judge, Respondents, and Dawnyell Flynn, Real Party in Interest.
    No. 77745
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    DENIED.


text:
    NGO TUAN, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK, Respondent, and The State of Nevada, Real Party in Interest.
    No. 77802
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    DENIED.


text:
    Justin SMITH, Appellant, v. Brian WILLIAMS, Warden, Respondent.
    No. 76723
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Rafael ALVAREZ-JIMENEZ, Appellant, v. The STATE of Nevada, Respondent.
    No. 74785
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Rafael Alvarado ROJAS, Appellant, v. Isidro BACA, Warden N.N.C.C.; James Dzurenda NDOC; and the State of Nevada, Respondents.
    No. 76263
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    TRP FUND IV, LLC, a Domestic Non-Profit Corporation, Appellant, v. The BANK OF NEW YORK MELLON, f/k/a the Bank of New York AS TRUSTEE FOR the CERTIFICATE HOLDERS OF CWALT, INC., Alternative Loan Trust 2006-31 CB Mortgage Passthrough Certificates Series 2006-31 CB, Respondent.
    No. 74002
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Gary Robert BUTLER, Appellant, v. Isidro BACA, Warden, Respondent.
    No. 76055
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    LN MANAGEMENT, LLC, Appellant, v. NATIONSTAR MORTGAGE, LLC, Successor by Merger to BAC Home Loans Servicing, LP, Respondent.
    No. 76131
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    Dismissed.


text:
    Michael Deshawn TELLIS, Appellant, v. The STATE of Nevada, Respondent.
    No. 75955
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Aaron Daniel BUCHSPICS, Appellant, v. Perry RUSSELL, Warden, WSCC, Respondent.
    No. 76056
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Richard Magdayo DAHAN, Appellant, v. The STATE of Nevada, Respondent.
    No. 74651
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Israel LOPEZ, Appellant, v. Renee BAKER, Warden, Respondent.
    No. 76383
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Piter Jauregui CORONADO, Appellant, v. Brian WILLIAMS, Warden, Respondent.
    No. 76653
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Michael Robert PERSON, Appellant, v. The State of Nevada DEPARTMENT OF CORRECTIONS; and Perry Russell, Warden, Respondents.
    No. 76403
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Alex SORIA, Appellant, v. The STATE of Nevada, Respondent.
    No. 75353
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Henry Floyd EDWARDS, Jr., Appellant, v. The STATE of Nevada; Nevada Department of Corrections ; and James Dzurenda, Director, Respondents.
    No. 75950
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Blas Herrera ACOSTA, Appellant, v. The STATE of Nevada, Respondent.
    No. 75740
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    REVERSED. REMANDED.


text:
    Barry COFFEE, Appellant, v. Perry RUSSELL, Warden, Respondent.
    No. 76197
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    Steven Samuel BRAUNSTEIN, Appellant, v. Dwight NEVEN, Warden, HDSP, Respondent.
    No. 75155
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.


text:
    A ORO, LLC, Appellant, v. DITECH FINANCIAL LLC; and Treo North and South Homeowners' Association, Respondents.
    No. 73600
    Supreme Court of Nevada.
    FILED FEBRUARY 20, 2019
    AFFIRMED.