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State v. Jensen

Supreme Court of Montana

March 19, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
COREY D. JENSEN, Defendant and Appellant.

          Submitted on Briefs: February 13, 2019

          APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Jefferson, Cause No. DC 15-43 Honorable Luke Berger, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Michael Marchesini, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana

          Steven C. Haddon, Jefferson County Attorney, Andrew W. Paul, Deputy County Attorney, Boulder, Montana

          OPINION

          Beth Baker Justice.

         ¶1 A Jefferson County jury found Corey D. Jensen guilty of two counts of criminal endangerment, one count of driving under the influence of alcohol, and one count of open container violation. Jensen was charged after he drove a dangerous section of I-15 at speeds up to 150 miles per hour. Jensen appeals the criminal endangerment convictions, arguing that the District Court erred in denying his proposed jury instruction on negligent endangerment as a lesser included offense of criminal endangerment. We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 On September 21, 2015, shortly after 1:00 p.m., Montana Highway Patrol ("MHP") Trooper Michael Zufelt was traveling northbound on I-15 when he witnessed a lime green Dodge Challenger, whose driver was later identified as Jensen, traveling southbound between mile markers 176 and 177 at a high rate of speed. Zufelt clocked Jensen traveling 125 miles per hour in a 75-miles-per-hour zone. Zufelt crossed the median and turned around to initiate a traffic stop. Zufelt did not turn on his lights and sirens for approximately a mile to a mile and a half. He testified that "at that kind of speeds" he did not want to alarm other drivers traveling on the road by turning on his emergency lights, so he waited until he got around those vehicles. When Zufelt turned his lights and sirens on, Jensen was traveling in the passing lane approximately a quarter to half a mile in front of Zufelt. Zufelt reached a maximum speed of 150 miles per hour and was unable to catch up to Jensen. At approximately mile marker 162, just south of Boulder, Zufelt chose to terminate the pursuit due to safety reasons and requested his dispatch to contact Butte troopers to let them know that the vehicle was possibly headed in their direction. By the time Zufelt discontinued his pursuit, Jensen had passed 17 different vehicles at a high rate of speed.

         ¶3 Jesse Hauer was driving one of the southbound vehicles that Jensen passed. Hauer testified that when the car passed him he heard a "scream to the left" of him, and the friend he was talking with over the Bluetooth system asked what the noise was. Because he did not feel safe, Hauer hung up his phone call and called his office to have them contact 911 and report that someone was going up around the corners of the pass at a high rate of speed and to see if they could get the vehicle slowed down or stopped. Hauer testified that he was worried that a car traveling that fast could collide with another vehicle and cause "serious injury at the very least." Hauer testified further that there is a "dip in the pass" on the passing lane that he personally slows down through because "it wants to throw you to the right-hand side of the lane as you're going the speed limit," and he could only "imagine what that felt [like] going at a high rate of speed."

         ¶4 Dispatch notified MHP troopers in Butte that the vehicle was possibly headed in their direction. Several troopers left Butte traveling northbound to locate the vehicle. Trooper Joseph E. Wyant located Jensen and clocked him driving 111 miles per hour. Trooper Wyant immediately turned on his emergency lights and sirens and "entered the median traveling directly at [Jensen]" to get him to slow down or stop. Jensen did not stop and continued southbound. Trooper Wyant accelerated his patrol vehicle to a top speed of 130 miles per hour, but he was unable to catch up to the vehicle.

         ¶5 MHP Sergeant Dave Oliverson also responded to the dispatch. Sergeant Oliverson, who has special training in investigating crash scenes, testified that "typically, in [his] experience, crashes that involve high rates of speed do result in either serious injury or even possibly death." He parked south of Trooper Wyant on a bridge at the crest of a hill to prepare for "spiking" the vehicle's tires. Sergeant Oliverson deployed the stop sticks in the median so that he could pull them across both lanes. Sergeant Oliverson saw Jensen brake rapidly when he crested the hill near the area where Sergeant Oliverson waited on the shoulder. Jensen ran over the stop sticks at approximately 10 to 15 miles per hour, deflating two of his tires, at which point he stopped his car. Sergeant Oliverson ordered Jensen out of the vehicle. Jensen asked Sergeant Oliverson why he punctured his tires. Sergeant Oliverson responded, "because [you were] running from the police." Trooper Zufelt caught up to the scene after Jensen was removed from the vehicle. He asked Jensen why he would not pull over for the emergency lights and sirens, and Jensen responded that "he liked driving fast, and he was a good driver." After troopers found an open container that Jensen admitted contained Pepsi and Jim Beam whiskey, the stop ripened into a DUI investigation.

         ¶6 The State charged Jensen with DUI, third offense, in violation of § 61-8-401, MCA; ten counts of felony criminal endangerment, in violation of § 45-5-207, MCA; misdemeanor possession of an open container, in violation of § 61-8-460, MCA; misdemeanor fleeing/eluding a peace officer, in violation of § 61-8-316, MCA; and misdemeanor reckless driving, in violation of § 61-8-301, MCA. The reckless driving charge later was removed in an amended information. Prior to trial, the State reduced the previously charged ten counts of criminal endangerment to two, one for Hauer and one for the other cars Jensen passed.

         ¶7 Jensen proposed jury instructions on the lesser included offense of negligent endangerment. The District Court reserved ruling on the issue until the close of the evidence. Jensen renewed his request at that time. The court declined to give Jensen's proposed instruction, concluding that the evidence did not support a finding that Jensen did not act knowingly. Following a two-day trial, the jury convicted Jensen of DUI (third offense), two counts ...


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