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State v. Carter11/25/1997
person commits the offense of resisting arrest if he knowingly prevents or attempts to prevent a peace officer from effecting an arrest by:
(a) using or threatening to use physical force or violence against the peace officer or another; or
(b) using any other means which creates a risk of causing physical injury to a peace officer or another.
In making his argument, Appellant relies solely on subpart (a) of the above statute. Appellant asserts that he never used or threatened physical violence against the arresting officer and, therefore, could not be guilty of resisting arrest.
The State responds by noting that § 45-7-301(1), MCA, has a subpart (b) as well as a subpart (a), and that under subpart (b), a person is guilty of resisting arrest if the person merely created a risk of causing physical injury to the peace officer. The State argues that " nce an officer has to engage in a physical struggle with an arrestee in order to prevent him from driving away, a risk that the officer or another might be physically injured is created." We agree.
The record shows that Appellant stated his intent to drive home, and that when the officer tried to prevent Appellant from leaving, he grabbed on to the mirror and would not let go. Finally, the officer was forced to pry Appellant's hand off of the mirror and wrestle him into handcuffs in order to effectuate the arrest. We conclude that under these circumstances, there was sufficient evidence from which the jury could have found that Appellant resisted arrest by creating a risk of causing physical injury to the police officer.
Issue 3
Did the District Court err in admitting evidence of Appellant's prior DUI convictions during the State's cross-examination of Appellant's character witnesses?
The standard of review for evidentiary rulings is whether the district court abused its discretion. State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067.
During the trial of No. 95-203, Appellant called three witnesses from the community who testified to Appellant's reputation in the community for being truthful and honest, and for having a good character in general. On cross-examination, the State asked the witnesses whether they were aware of Appellant's four prior DUI convictions, and whether those convictions would change their opinion of Appellant. Appellant objected to this questioning on the ground that it was improper because it elicited "other crimes" evidence without giving Appellant proper notice pursuant to State v. Just (1979), 184 Mont. 262, 602 P.2d 957. Appellant also objected on the ground that the State's information was untrue because two of the four DUIs referenced were the ones being appealed (95-203 and 96-090), and were not yet final convictions.
Initially, the court overruled both objections. However, later when Officer Doney took the witness stand, the court reconsidered Appellant's second ground for objection in chambers. The court ruled that only evidence of Appellant's two February, 1993 DUI convictions would be admitted. Thus, when the State resumed direct-examination of Officer Doney, Officer Doney testified that Appellant's records reflected two 1993 DUI convictions, not including the ones currently appealed.
On appeal to this Court, Appellant makes the same arguments that were the bases for his objections below. The State responds that the Just requirements regarding notification do not apply in the instant case because the evidence elicited on cross-examination was not "other crimes" evidence under Rule 404(b), M.R.Evid. Rather, the State argues, the cross-examinat
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