01/31/2023
DA 21-0161
Case Number: DA 21-0161
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 21N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JACOB OVERLEASE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC-19-295A
Honorable Peter B. Ohman, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Samir F. Aarab, Boland Aarab PLLP, Great Falls, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant
Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney, Eric N. Kitzmiller, Bozeman,
Montana
Submitted on Briefs: September 21, 2022
Decided: January 31, 2023
Filed:
Vir-6A.-if
__________________________________________
Clerk
Justice Dirk Sandefur delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, we decide this case by memorandum opinion. It shall not be cited and does not
serve as precedent. The case title, cause number, and disposition will be included in our
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Jacob Overlease appeals his August 2020 judgment of conviction on jury trial in the
Montana Eighteenth Judicial District Court, Gallatin County, on the offense of Driving
Under the Influence of Alcohol (DUI), fourth or subsequent offense, a felony in violation
of §§ 61-8-401 and -731, MCA (2019). We affirm.
¶3 While on patrol around 11:30 p.m. on June 16, 2019, a Gallatin County Sheriff’s
Deputy encountered an oncoming pickup truck, driven by a man later identified as
Overlease, travelling eastbound on the paved highway frontage road outside of Three
Forks, Montana. The deputy later testified that, after seeing the truck “swerve over near
the guardrail,” and then overcorrect back over the center line, she turned around to follow
and then saw the truck turn off into a roadside rest area at the Headwaters State Park. The
deputy then took up a position on a connecting road between the frontage road and the rest
area to wait and see if the truck would leave the rest area, at which point she could then see
any further driving irregularity. When she did not see the truck leave after a few minutes,
the deputy drove into the rest area where she saw the pickup parked unattended with the
driver’s door open and headlights on.
¶4 The deputy exited her patrol car to attempt to locate the driver on foot, and
eventually found him lying on his back in the grass. Upon contact and initial questioning,
Overlease explained that he pulled into the rest area to let his puppy dog out of the truck
after it unexpectedly began vomiting while they were traveling down the road. The deputy
recalled that Overlease initially stated that he had previously consumed about four
alcoholic beverages that evening after working in Butte, Montana. She also recalled seeing
an open alcoholic beverage container in his truck, to which Overlease explained that he
had just opened it before the puppy started vomiting. The deputy later testified, inter alia,
that she did not see any indication of dog vomit in the truck. Based on the various
circumstances observed, and Overlease’s appearance and manner of speech, the deputy
subjected him to consensual field sobriety testing. After he refused to consent to her
request that he submit to a portable breath test, the deputy arrested Overlease for DUI and
driving with a suspended driver’s license. He later consented to a post-arrest Intoxilyzer
8000 breath test which indicated a 0.160 breath/blood alcohol content. The State
subsequently charged Overlease in district court with felony DUI, fourth or subsequent
offense, and misdemeanor driving with a suspended license. At the outset of initial trial
setting in February 2020, Overlease pled guilty to the misdemeanor.
¶5 Following an initial mistrial on the felony DUI due to a hung jury, the case again
proceeded to jury trial on the felony in August 2020. Only two witnesses testified, the
investigating sheriff’s deputy and Overlease. After the State rested its case-in-chief,
Overlease testified and denied that he had been driving under the influence of alcohol
before the deputy arrived at the scene. He asserted that he became under the influence only
after stopping at the rest area. He testified that, after his puppy vomited in the truck, he
stopped to let it out of the truck and to clean up and use the restroom. The deputy testified
that Overlease initially told her that, when his puppy started vomiting before he turned into
the rest area, he had just opened his first beer—one of two 24-ounce alcoholic
beverages/beers that he said he had earlier purchased upon stopping at a Town Pump store
in Whitehall, Montana, on the way from Butte. He testified that he consumed both, before
the deputy arrived, over a period of approximately 30 minutes while he was waiting on the
grass at the rest area for his puppy to return after running off. However, in contrast to his
more limited on-scene account of events to the deputy, Overlease further asserted at trial
that he also stopped and was waiting at the rest area because he had cell service there and
was waiting for his girlfriend to text him on her way home to Clarkston, Montana, from
her job in West Yellowstone.1 He testified that he then intended to wait for her to come
and pick him up at the rest area, where he planned to leave his puppy locked in his truck
until he returned in the morning, so that he and his girlfriend could have dinner together in
Clarkston where he lived. On redirect following the State’s cross-examination challenge
of his new account regarding his girlfriend, Overlease explained that the deputy never
asked him about it and that he did not mention it because he was preoccupied with
answering her questions.
¶6 The instruction set on the applicable law given to jury by the court prior to closing
arguments included, inter alia, the following witness credibility assessment instruction:
You alone are the sole judges of the credibility or believability of all the
witnesses testifying in this case. You are also the judges of the weight or the
importance to be given their testimony. . . . In determining the facts in this
case, it may be necessary for you to determine what weight should be given
1
Clarkston, Montana, is about ten miles down the road from the Headwaters State Park rest area.
to the testimony of each witness. To do this, you should carefully consider
all the testimony, the circumstances under which each witness testified, and
every matter in evidence which tends to indicate whether a witness is worthy
of belief. . . . [Inter alia,] [y]ou may consider the extent to which the
witnesses are either supported or contradicted by other witnesses or evidence
in this case.
. . .
If you believe that any witness has lied about important matters in the case,
you must reject that false testimony. You can view the rest of that witness’
testimony with distrust and you have the choice of either rejecting the
remaining testimony, or finding such testimony is worthy of belief. The rule
about rejecting false testimony and suspecting the remainder does not apply
if a witness is unintentionally mistaken as to some matters or facts, or gives
evidence concerning unimportant matters without trying to deceive the court
or jury.
In his closing argument, the State prosecutor later referenced the credibility instruction, to
wit, as pertinent:
[A]t this time, I would like to take your attention to [the jury instruction]
about testimony that you believe is false. . . . It says something to the effect
that if you believe a witness has lied about important matters in the case, you
must reject that testimony, and you can view the rest of that witness’
testimony with distrust, and you may reject the remaining testimony. When
someone gets on the stand to testify as a witness, they’re putting their
credibility on the line. Therefore, under that instruction, what I’m suggesting
. . . is that you can view Mr. Overlease’s testimony, with regards to when he
was drinking, with distrust because his testimony simply doesn’t make
sense, and because this instruction applies to all witnesses who
testify . . . . There simply wasn’t enough time for him to consume the alcohol
he says he consumed, from the time he parked, to when [the deputy]
contacted him, if he did everything else that he claimed he did.
If he was really waiting for his girlfriend to pick him up, and he had been
there that long, why didn’t he say that to [the deputy]? Why have this whole
discussion about who’s going to tow the truck, locking the truck up, what’s
going to happen to [the dog]? . . . If he knows his girlfriend is really coming
there that evening, why be concerned about leaving his truck there and have
somebody steal his tools? He knows his girlfriend’s coming. What this
means . . . is [his] testimony on these points is not worthy of your belief, if
you look at the jury instructions on how to consider and weigh the credibility
in light of the testimony.
(Emphasis added.) Defense counsel immediately interjected and generally objected to
“any prosecutorial discussion of credibility of witnesses.” Without ruling, the District
Court noted the objection and told the prosecutor to “[m]ove on.”
¶7 Upon deliberation, the jury returned a guilty verdict on the felony DUI charge. The
District Court later sentenced Overlease to a 13-month term of commitment to the Montana
Department of Corrections (DOC) for placement in an appropriate correctional facility or
program with recommendation for placement in the DOC “Watch” Program, followed by
probation for the balance of the 13-month term, and a consecutive three-year suspended
DOC commitment.2 Overlease timely appeals.
¶8 Criminal prosecutors generally “have wide latitude” during trial closing and rebuttal
arguments to, inter alia, “comment on and argue for any position or conclusion regarding
the nature, quality, or effect of the [trial] evidence in relation to the applicable law and the
[State’s] burden of proof” if “based on the [record] evidence, applicable law as stated in
the jury instructions, and his or her analysis of the evidence.” State v. Miller, 2022 MT 92,
¶ 22,
408 Mont. 316,
510 P.3d 17 (emphasis original—internal punctuation and citations
omitted). On the other hand, “[a]s applicable to the States as a matter of substantive due
process implicit in the Fourteenth Amendment Due Process Clause, the Sixth Amendment
to the United States Constitution, and Article II, Sections 24 and 26, of the Montana
2
The court further sentenced him to a concurrent six-month suspended term in the county jail on
his prior guilty plea to the offense of driving on a suspended license.
Constitution, similarly guarantee criminal defendants the right to a fair trial before an
impartial jury.” Miller, ¶ 21. “Also implicitly guaranteed to the criminally accused as
fundamental liberty interests under the Fourteenth Amendment Due Process Clause are the
related rights to the presumption of innocence and the requirement that the government
prove every element of a charged offense beyond a reasonable doubt.” Miller, ¶ 21. Those
fundamental constitutional fair trial rights thus “impose or implicate a number of highly
nuanced restrictions on the otherwise broad latitude that prosecutors have” regarding jury
argument at trial. Miller, ¶ 22. Further constraining prosecutors’ generally wide latitude
are applicable rules of evidence, and the statutory command that “the jury is the exclusive
judge of the credibility, veracity, weight, and effect of the evidence.” Miller, ¶¶ 22 and 24
(citing §§ 26-1-201 through -203, MCA). Thus, as pertinent here, prosecutors generally
may neither “express a direct personal opinion or belief that a witness, or his or her
testimony, was or was not credible, believable, reliable, or truthful,” nor “directly
characterize a witness statement as a lie, or a witness or the accused as a liar or as having
lied.” Miller, ¶¶ 23-24 and 28-29 (citations omitted).
¶9 On balance then, “in contrast to a statement of or akin to a direct personal opinion”
regarding the credibility of the trial testimony or pretrial statements of a witness or the
accused, “prosecutorial closing arguments and comments are generally proper if made in
the context of discussing the evidence, how it relates or corresponds to the law as stated in
the jury instructions (including specified witness veracity and credibility assessment
guidelines), and reasonable inferences supported by the evidence.” Miller, ¶ 26 (emphasis
omitted). “While expression of direct personal opinions on witness credibility are
improper, the prosecutor may nonetheless comment on, suggest, point-out, and argue
reasonable inferences that [the] jury may draw from the evidence including, inter alia,
comment on the credibility of witnesses as a comment on the evidence based on conflicts
and contradictions in testimony.” Miller, ¶ 27 (emphasis added—internal punctuation and
citations omitted). Prosecutors may also “properly point out inconsistencies between the
defendant’s trial testimony and any pretrial statements or pre-Miranda silence to support
an inference and argument” that he or she “changed his [or her] story after having time to
think about the consequences.” Miller, ¶ 30 (internal punctuation and citation omitted).
They may similarly ask and argue as to which of multiple accounts provided by the
defendant was the truth. Miller, ¶ 30 (citation omitted).
[W]hile often highly nuanced, the dividing line between an improper and
proper prosecutorial argument or comment regarding witness credibility or
truthfulness or the guilt of the accused is whether, in the context of the
entirety of the particular . . . argument at issue, the argument or comment is
more akin to a statement of the prosecutor’s personal opinion or direct
characterization of the accused or a witness as “lying” or a “liar” (or his or
her testimony as a “lie”), or rather, an argument or comment based on the
prosecutor’s analysis of the evidence regarding the nature, quality, or effect
of the evidence and supported inferences in relation to the applicable law.
Miller, ¶ 27 (emphasis original). In contrast, however, it is improper for prosecutors to
misstate, misrepresent, or mischaracterize the law as stated in the court’s instructions. State
v. Labbe, 2012 MT 76, ¶¶ 23 and 27,
364 Mont. 415,
276 P.3d 848 (citation omitted).
¶10 Here, Overlease asserts that the District Court erroneously allowed improper
prosecutorial closing argument and comments including misstatement of the law,
incomplete paraphrasing of the witness credibility assessment instruction, a statement of
personal opinion regarding the credibility of Overlease’s trial testimony, and
characterization of him as a “liar” whose testimony was “not worthy of belief.” However,
assuming, arguendo, that his far more detailed assertions of error on appeal were preserved
for appeal within the scope of his more general objection at trial, see, e.g., State v. Sanchez,
2008 MT 27, ¶ 50,
341 Mont. 240,
177 P.3d 444, the prosecutor did not directly
characterize Overlease as a liar, or any of his testimony as a lie. Nor did the prosecutor’s
partial paraphrase of the substantive essence of the witness credibility assessment
instruction substantially misstate, misrepresent, or mischaracterize the pertinent law as
stated in the instruction. See supra. See also §§ 26-1-302(7), (9), -303(3), and (5), MCA;
Montana Criminal Jury Instruction 1-102 and -103 (2009). Even to the extent that it
arguably did, Overlease does not assert, nor has he shown, that the subject instruction given
to the jury by the court was an inaccurate or incomplete statement of the pertinent law.
¶11 Moreover, the prosecutor’s use of the pronoun “I,” and “suggest[ion] . . . that [the
jury] can view” the subject testimony “with distrust because [it] simply doesn’t make
sense,” was neither akin to nor a statement of direct personal opinion. (Emphasis added.)
Rather, it was an express reference to the previously given jury instruction and, in context,
an essentially correct argument on the instruction as applied to the subject trial evidence.
Likewise the prosecutor’s statements in reference to discrepancies or logical incongruity
in Overlease’s testimony that he stopped and was waiting at the rest area to be picked up
by his girlfriend, to wit:
What this means . . . is [his] testimony on these points is not worthy of your
belief, if you look at the jury instructions on how to consider and weigh the
credibility in light of the testimony.
In context, the prosecutor’s statements and rhetorical questions at issue were thus
permissible and proper arguments on the witness credibility assessment instruction as
applied to the pertinent trial evidence. We hold that the District Court did not erroneously
allow the prosecutor to make improper or inaccurate arguments on the subject jury
instruction and pertinent evidence.
¶12 We decide this case by memorandum opinion pursuant to Section I, Paragraph 3(c)
of our Internal Operating Rules. Affirmed.
/S/ DIRK M. SANDEFUR
We concur:
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE
