State v. C. Wells, 485 P.3d 1220

Background

On Jan 7, 2018 Wells and House drank at a casino; Wells’ truck stopped in the roadway and officers found Wells in/near the driver seat with open containers and strong odor of alcohol. House was a passenger. Wells’ blood alcohol was 0.334.
No clear contemporaneous statement identified who had driven; at trial both House (given immunity) and Wells testified House had driven, though House had earlier said he did not remember.
Wells was charged under § 61-8-401, MCA (alleging he drove or was in actual physical control while under the influence). The State advanced two theories: Wells drove to the point the truck stopped, or he was in actual physical control when officers arrived.
Defense requested (1) a specific unanimity instruction distinguishing driving vs actual physical control and (2) an instruction that a witness is presumed to speak the truth; the court refused both.
Prosecutor urged the jury to view House as not credible and commented on witness credibility at closing; defense did not object at trial.
Wells was convicted; on appeal he challenged the court’s refusal to give the two instructions and sought reversal for prosecutorial misconduct via plain error review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court abused discretion by refusing a specific unanimity instruction	State: statute’s "drive or be in actual physical control" language describes alternative means of one offense; no specific unanimity needed; alleged acts were a single course of conduct	Wells: statute creates two separate crimes or, alternatively, multiple bad acts were alleged under one count so jury must unanimously agree on the specific act	Court: No abuse. Driving is a form of actual physical control; alleged acts were part of a continuous transaction so specific unanimity instruction not required
Whether court erred by refusing instruction that a witness is presumed to speak the truth	State: standard credibility instructions already fully and fairly instructed the jury on assessing witness believability	Wells: statute supports an instruction that witnesses are presumed to speak truth; instruction should have been given	Court: No abuse. Jury was properly instructed as sole judge of credibility and other credibility instructions were adequate
Whether prosecutor’s credibility comments warrant plain-error reversal	State: prosecutor commented on contradictions, intoxication, and possible motive to lie—permissible argument; no inter-witness bolstering	Wells: prosecutor improperly vouched/opined about witness credibility and committed misconduct	Court: Declined plain-error review. Comments were brief deviations, not egregious or likely to cause miscarriage of justice

Key Cases Cited

State v. Williams, 380 Mont. 445, 358 P.3d 127 (2015) (standard of review for jury instructions)
State v. Weldy, 273 Mont. 68, 902 P.2d 1 (1995) (specific unanimity required when statute creates separate offenses)
Kills on Top v. State, 273 Mont. 32, 901 P.2d 1368 (1995) (distinct statutory means can be mere alternative means not requiring unanimity)
State v. Matz, 335 Mont. 201, 150 P.3d 367 (2006) (alternative statutory definitions may not require specific unanimity)
State v. Hudson, 327 Mont. 286, 114 P.3d 210 (2005) (definition of actual physical control)
State v. Sommers, 377 Mont. 203, 339 P.3d 65 (2014) (actual physical control includes driving, pushing, coasting, parking)
Schad v. Arizona, 501 U.S. 624 (1991) (Supreme Court on unanimity and alternative means)
State v. Weaver, 290 Mont. 58, 964 P.2d 713 (1998) (specific unanimity required where multiple discrete acts alleged)
State v. Redlich, 374 Mont. 135, 321 P.3d 82 (2014) (jury must substantially agree on principal factual elements underlying offense)