09/15/2020
DA 19-0480
Case Number: DA 19-0480
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 236N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
VALORIE SUE CHURMAGE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC-19-028(A)
Honorable Amy Eddy, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Valorie Sue Churmage, Self-Represented, Kalispell, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Kathryn F. Schulz, Assistant
Attorney General, Helena, Montana
Travis R. Ahner, Flathead County Attorney, Renn Fairchild, Deputy County
Attorney, Kalispell, Montana
Submitted on Briefs: July 29, 2020
Decided: September 15, 2020
Filed:
cir-641.—if
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion, shall not be cited and does not serve
as precedent. Its case title, cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Defendant Valorie Sue Churmage appeals from the April 22, 2019 order of the
Eleventh Judicial District Court, Flathead County, affirming her conviction in the
Flathead County Justice Court of Driving Under the Influence of Alcohol (DUI)—second
offense.
¶3 Churmage raised a number of issues before the District Court for the first time on
appeal. Because the Flathead County Justice Court is a court of record authorized by
§ 3-10-101(5), MCA, the District Court correctly observed it was confined to a review of
the Justice Court record and thus declined to consider issues Churmage raised for the first
time on appeal. We likewise confine our review to those issues properly preserved for
appeal. Mont. Code Ann. §46-20-104(2); State v. Longfellow,
2008 MT 343, ¶ 19,
346 Mont. 286,
194 P.3d 694. Therefore, we consider the following two issues which we
determine are properly before us: (1) whether sufficient evidence supported the jury’s
verdict; and (2) whether Churmage’s trial counsel was ineffective. We affirm.
¶4 On the evening of July 2, 2017, Montana Highway Patrol Trooper Jason Fetterhoff
responded to a 911 call from Ashley Ersland, Churmage’s son-in-law. Ersland reported
that Churmage had driven her car into the side of the house he shared with his wife,
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children, and Churmage.1 Ersland believed the impact had severed a gas line. Ersland also
believed Churmage was intoxicated.
¶5 When Fetterhoff arrived at the scene, he observed damage to the gas line, the gas
meter box, and the front end of Churmage’s vehicle. Upon making contact with Churmage,
Fetterhoff observed a strong odor of alcohol emanating from her, as well as slurred speech,
bloodshot eyes, and that she stumbled while walking. Fetterhoff conducted standard field
sobriety tests (SFSTs), which Churmage performed poorly. During the encounter with
Fetterhoff, Churmage admitted to driving the vehicle home after consuming alcohol at the
Rainbow Bar. Churmage refused to consent to a blood draw, so Fetterhoff applied for and
was granted a warrant, which revealed Churmage’s blood alcohol concentration (BAC) to
be 0.207 percent. Churmage was arrested and charged with DUI in Flathead County Justice
Court.
¶6 At trial, the State presented testimony from Ersland and Fetterhoff. Ersland testified
that at around 7:45 p.m. on the evening in question, he was smoking a cigarette outside the
house and Churmage’s car was not there. Ersland went inside and a short time later he
heard a thump outside his son’s room and then a loud hissing noise. He looked outside his
son’s room and saw Churmage’s car right up against the house. He told his wife to get the
children out of the house because he thought Churmage’s car had broken the gas line. He
then went into the hallway that connects the house and garage and observed, through a
window, Churmage sitting in the driver’s seat of her car. He ran back into the house to
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Churmage lived in an apartment over the attached garage.
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make sure his wife and children had safely evacuated and then went to Churmage’s car,
where he had to coax her out of the car to join the rest of the family at a camp trailer some
distance from the house.
¶7 Fetterhoff testified that when he encountered Churmage, she had a strong odor of
alcohol emanating from her, her speech was slurred, her eyes were bloodshot, and she
stumbled while walking. He testified she performed poorly on the SFSTs. He testified she
admitted to driving her car home after consuming alcohol at the Rainbow Bar. He testified
Churmage refused to consent to a blood draw, so he applied for and was granted a warrant
which revealed Churmage’s BAC to be 0.207 percent. The results of Churmage’s blood
test were introduced into evidence.
¶8 The jury found Churmage guilty of DUI.
¶9 In cases where a district court functions as an intermediate appellate court from a
lower court of record, we review the appeal de novo as though it were originally filed in
this Court. State v. Holland, 2019 MT 128, ¶ 7,
396 Mont. 94,
443 P.3d 519 (citing
State v. Akers,
2017 MT 311, ¶ 9,
389 Mont. 531,
408 P.3d 142). We examine the record
independently of the district court’s decision, reviewing the lower court’s findings of fact
under the clearly erroneous standard, its discretionary rulings for abuse of discretion, and
its legal conclusions for correctness. Holland, ¶ 7.
¶10 Whether sufficient evidence exists to convict a defendant is an analysis and
application of the law to the facts and, as such, is properly reviewed de novo.
State v. Gunderson,
2010 MT 166, ¶ 58,
357 Mont. 142,
237 P.3d 74. The standard of
review of sufficiency of the evidence on appeal is whether, upon viewing the evidence in
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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. Rennaker, 2007 MT 10,
¶ 16,
335 Mont. 274,
150 P.3d 960. The jury’s determination with regard to disputed
questions of fact and credibility will not be disturbed on appeal. Rennaker, ¶ 16.
¶11 Ineffective assistance of counsel claims are mixed questions of law and fact which
we review de novo. State v. Ward,
2020 MT 36, ¶ 15,
399 Mont. 16,
457 P.3d 955.
¶12 Churmage contends her DUI conviction was not supported by sufficient evidence.
This contention is wholly without merit. As detailed above, the evidence of Churmage’s
guilt is overwhelming. The District Court did not err by rejecting Churmage’s claim of
insufficient evidence.
¶13 Churmage argues her trial counsel was ineffective. In order to succeed on an
ineffective assistance of counsel claim, a defendant must establish both elements of a
two-part test. Whitlow v. State,
2008 MT 140, ¶ 10,
343 Mont. 90,
183 P.3d 861
(citing Strickland v. Washington,
466 U.S. 668,
104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984)).
The Defendant must show: (1) “that counsel’s performance was deficient—making errors
so serious that counsel was not functioning as ‘counsel’ guaranteed by the
Sixth Amendment,” and (2) “that counsel’s performance prejudiced the defendant, in other
words, that the errors ‘were so serious as to deprive the defendant of a fair trial.’”
State v. Schowengerdt,
2018 MT 7, ¶ 31,
390 Mont. 123,
409 P.3d 38 (quoting
Whitlow v. State,
2008 MT 140, ¶ 10,
343 Mont. 90,
183 P.3d 861).
¶14 To establish prejudice under the second prong of the Strickland test, the defendant
must show there is a “reasonable probability that, but for counsel’s unprofessional errors,
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the result of the proceeding would have been different.” City of Libby v. Hubbard,
2018 MT 2, ¶ 19,
390 Mont. 108,
408 P.3d 532. This means there must be “a probability
sufficient to undermine confidence in the outcome.” Robinson v. State,
2010 MT 108, ¶ 12,
356 Mont. 282,
232 P.3d 403 (citing Strickland,
466 U.S. at 694,
104 S. Ct. at 2068). The
prejudice inquiry focuses on whether counsel’s deficient performance rendered the trial
result unreliable or the proceedings fundamentally unfair. Hubbard, ¶ 19 (citing
Riggs v. State,
2011 MT 239, ¶ 12,
362 Mont. 140,
264 P.3d 693 (citation omitted).
¶15 Having reviewed the record in its entirety, we find no merit to Churmage’s claims
of ineffective assistance of counsel. Assuming, for the sake of argument, her trial counsel
was somehow ineffective in any or all of the instances she alleges, when considered in light
of the overwhelming evidence of her guilt, we find no reasonable probability of a different
outcome in this case. We affirm the District Court’s holding that Churmage did not receive
ineffective assistance of counsel at trial.
¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review. Affirmed.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER
/S/ JIM RICE
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