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State v. Berosik10/5/1999
APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Katherine R. Curtis, Judge presiding.
Submitted on Briefs: June 10, 1999
Clerk Justice W. William Leaphart
Appellant Darwin Berosik (Berosik) appeals from the judgment and conviction of the Eleventh Judicial District Court, Flathead County.
We affirm.
The following issues are raised on appeal:
1. Whether the District Court erred in denying Berosik's motion for mistrial.
2. Whether the District Court abused its discretion in admitting a police booking form. Standard of Review
We review a district court's denial of a motion for mistrial to determine whether the district court abused its discretion. State v. Partin (1997), 287 Mont. 12, 951 P.2d 1002. We review evidentiary rulings to determine whether a district court has abused its discretion. Seizure of $23, 691.00 in U.S. Currency (1995), 273 Mont. 474, 905 P.2d 148.
Factual and Procedural Background
In July, 1997 Berosik was driving north on highway 93 in the late evening with his brother, Kenneth Berosik (Kenneth), when Highway Patrol Officer Lavin stopped him because Berosik had not dimmed his brights in response to oncoming traffic. Officer Lavin saw beer cans in the car and smelled alcohol. Officer Lavin requested a driver's license, registration, and proof of insurance. Berosik said he did not have those documents and told Officer Lavin that his name was Kenneth. Officer Lavin returned to his car to check the status of Berosik's driver's license and called for backup. Officer Watson arrived within several minutes. When Officer Lavin went back to Berosik's car, he smelled alcohol on Berosik's person and had him get out of the car. Berosik appeared "uneasy on his feet;" even when he stood still "his body was swaying." Officer Lavin had Berosik perform a horizontal gaze nystagmus test (HGN). Berosik scored a six out of a possible six, suggesting that he was impaired from alcohol. While Officer Lavin returned to his car to prepare a portable breath test, Officer Watson asked Berosik's brother, Kenneth, for identification. Kenneth replied, "F-O." Kenneth got out of the car and tussled with Officer Watson while Berosik apparently encouraged Kenneth, calling him "brother" but not "Kenneth." When Berosik was told to get down on the ground, he struggled with the officers. Eventually, Officer Watson subdued the Berosik brothers with pepper spray, and both brothers were arrested.
That same night, Anderson, a detention sergeant, observed Berosik after his arrest. Sergeant Anderson had seen Berosik previously when he was sober and when he was intoxicated. She concluded that he was intoxicated. She described his condition on a booking form.
In September, 1997 Berosik was charged with Driving Under the Influence of Alcohol (DUI), Resisting Arrest, and Habitual Offender Operating a Motor Vehicle. Berosik pled guilty to the Habitual Offender charge and proceeded to trial on the DUI and Resisting Arrest charges. In December, 1997 the State filed a Just notice, signaling its intent to move for the admission at trial of evidence regarding an alleged prior DUI in April, 1997. Berosik responded by filing a motion in limine, seeking to exclude evidence regarding the prior DUI under Rule 404(b), M.R.Evid. In March, 1998, on the first day of Berosik's trial, the District Court granted Berosik's motion in limine. However, at trial, the District Court admitted evidence that Berosik contended was in violation of the motion in limine ruling, prompting Berosik to move for a mistrial. The District
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