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State v. Freiburg

Supreme Court of Montana

June 12, 2018

STATE OF MONTANA, Plaintiff and Appellee,
JACOB GEORGE FREIBURG, Defendant and Appellant.

          Submitted on Briefs: May 9, 2018

          APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DDC 15-299 Honorable James P. Reynolds, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Haley Connell Jackson, Moses Okeyo, Assistant Appellate Defenders, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana, Leo J. Gallagher, Lewis and Clark County Attorney, Jeff Sealey, Deputy County Attorney, Helena, Montana



         ¶1 Jacob Freiburg appeals his conviction after jury trial in the First Judicial District Court, Lewis and Clark County, of Criminal Child Endangerment (Child Endangerment) by driving under the influence (DUI), a felony. We reverse and remand, addressing the following issue:

Did the District Court err by refusing to give lesser-included offense instructions for DUI and DUI per se?


         ¶2 In the evening of August 1, 2015, Deputy Joyce of the Lewis and Clark County Sheriff's Office was patrolling in the area of Canyon Ferry Lake. While at Chinaman's Campground, Deputy Joyce observed Freiburg, driving a green minivan, spinning his tires while accelerating out of a parking spot. Joyce then observed Freiburg drive through the campground, stop, and then accelerate quickly again. Joyce initiated a traffic stop of the van.

         ¶3 During the stop, Deputy Joyce smelled the odor of an alcoholic beverage coming from Freiburg's breath, and observed that Freiburg's eyes were bloodshot and glassy. Joyce had Freiburg undertake field sobriety tests, which indicated that Freiburg was impaired, though Freiburg stated he had poor balance. Freiburg agreed to take a preliminary breath test, which indicated a .230 blood-alcohol content. During the stop, Freiburg admitted to drinking three or four "tall boy" beers. Freiburg initially agreed to provide a blood sample, but once at the hospital, refused. Because Freiburg had a prior DUI conviction, Joyce obtained a search warrant to obtain a blood sample, which indicated a .199 blood-alcohol content.

         ¶4 In Freiburg's vehicle were his three children, all under the age of 14, Nichol Goodman, an adult woman, and Goodman's five-year-old daughter. Freiburg's thirteen-year-old son appeared to be intoxicated and became so upset during the stop that officers had to restrain him.

         ¶5 The State initially charged Freiburg with Child Endangerment by DUI, a felony under § 45-5-628(1)(e), MCA (2013), and driving while suspended and failure to have proof of insurance, misdemeanors. The State later moved to dismiss the misdemeanor charges and to add an alternative count of felony Child Endangerment by driving a motor vehicle with an alcohol concentration of 0.08 or more ("DUI per se"). The State also filed a notice of Persistent Felony Offender.

         ¶6 At trial, Freiburg challenged the DUI charges, arguing that the field sobriety tests were flawed, and that the blood test did not accurately capture his blood-alcohol content at the time he was driving, because it was administered many hours later. Freiburg's defense also challenged the Child Endangerment charge, positing that there was no danger to the children in the car, based upon testimony from Officer Joyce that Freiburg was cooperative and did not exhibit any signs of unsafe driving other than his accelerated starts on the gravel, and Goodman's testimony that there was nothing about Freiburg's driving that indicated he was impaired or that gave her any fear for the safety of the children in the vehicle. Freiburg argued in both opening and closing that he did not cause substantial risk to the children.

         ¶7 While setting jury instructions, Freiburg requested instructions on DUI and DUI per se as lesser-included offenses of the respective Child Endangerment charges, prompting an extensive debate between the parties and an extensive analysis by the District Court. The State argued that lesser-included instructions were improper because the defendant's theory-which attacked both the underlying DUI charges and the risk of serious bodily injury under the greater endangerment charge-would, if believed by the jury, require an outright acquittal, not a conviction for the lesser-included offense. Freiburg responded that while he attacked the DUI, he also presented evidence that he had not caused substantial risk to the children in the car, and thus the jury could convict him of DUI or DUI per se while acquitting him of Child Endangerment. The District Court ultimately declined to give the lesser-included offense instructions, reasoning that because Freiburg challenged the underlying DUI, his defense would result in an acquittal on both the greater and included charges, though noting, "[i]t may be that we're going to have some case at some point that's going to be State versus Freiburg that will clear up some of these elements, but that's my conclusion on the case law that's been presented to me."

         ¶8 The jury found Freiburg guilty of Child Endangerment by DUI. Citing Freiburg's Persistent Felony Offender status, the District Court expressed an intention to sentence Freiburg to fifteen years with five years suspended, but at Freiburg's request, the District Court sentenced him to fifteen years with no time suspended. Freiburg filed a motion for a new trial, again challenging the District Court's failure to give lesser-included offense instructions, which the District Court denied, reasoning that "at least one of Freiburg's ...

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