State v. Bekemans, DA 11–0630.

• Decision Date: 22 January 2013
• Docket Number: No. DA 11–0630.,DA 11–0630.
• Citation: 368 Mont. 235,293 P.3d 843
• Parties: STATE of Montana, Plaintiff and Appellee, v. Kamla L. BEKEMANS, Defendant and Appellant.
• Court: Montana Supreme Court

368 Mont. 235

293 P.3d 843

STATE of Montana, Plaintiff and Appellee,

v.Kamla L. BEKEMANS, Defendant and Appellant.

No. DA 11–0630.

Supreme Court of Montana.

Submitted on Briefs Oct. 2, 2012.

Decided Jan. 22, 2013.

For Appellant: Wade Zolynski, Chief Appellate Defender; Koan Mercer, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman, Assistant Attorney General, Helena, Montana, Jed Fitch, Beaverhead County Attorney, Dillon, Montana.

Chief Justice MIKE McGRATH delivered the Opinion of the Court.

[368 Mont. 236]¶ 1 Kamla L. Bekemans (Bekemans) appeals from her convictions in the Fifth Judicial District Court, Beaverhead County, of felony criminal endangerment; failing to use a lamp on a parked vehicle; failure to carry flares or other warning devices; failure to display warning devices on a disabled vehicle; operating a vehicle without insurance; and failure to park as close as practicable to the edge of the shoulder. We affirm in part and reverse in part.

¶ 2 Bekemans presents the following issues for review:

¶ 3 Issue One: Whether sufficient evidence supports Bekemans' criminal endangerment conviction.

¶ 4 Issue Two: Whether Bekemans was denied her right to be personally present at all critical stages of the trial.

¶ 5 Issue Three: Whether Bekemans was denied effective assistance of counsel.

¶ 6 Issue Four: Whether the District Court violated Bekemans' constitutional rights by basing its sentence in part on her refusal to acknowledge guilt.

¶ 7 Issue Five: Whether the District Court had the authority to restrict Bekemans' eligibility for parole.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 8 Brandon Davis (Davis) was killed in the early morning hours of July 28, 2009, when the vehicle that he was driving collided with a small bus parked in the middle of Interstate 15 (I–15). Bekemans had been driving the bus home to Livingston after purchasing it in Utah when it began to chug, slow down, and lose power intermittently. Bekemans had a mechanic at a truck stop near Idaho Falls examine the bus, but the mechanic could not identify the problem. After having difficulty crossing Monida Pass, the bus again started slowing down and chugging near mile marker thirty-two, south of Dillon. Instead of safely pulling the bus onto the shoulder of the road on the dark, moonless night, Bekemans stopped the bus in the middle of the right, northbound lane of traffic.

¶ 9 Bekemans' attempts to restart the bus failed. After stopping the bus, Bekemans turned the engine off and then tried to restart the bus. When she turned the key, however, the “Wait to Start” light came on that is common to vehicles with diesel engines. Not knowing that she simply had to wait a couple of seconds for the light to extinguish before cranking the engine, Bekemans turned the key to the off position.

¶ 10 Bekemans failed to deploy standard warning devices after she failed to restart the bus. Bekemans was not carrying flares or emergency reflective triangles. She did not know how to activate her hazard lights. Upon finding herself parked in the middle of the interstate highway on a dark night without any warning devices deployed, Bekemans decided to turn the bus's lights off. She told people on the scene after the crash that she had turned her lights off to conserve battery power. She claimed that she turned them back on whenever she saw a car approaching.

¶ 11 Bekemans had failed to turn her lights on to warn approaching drivers before the collision, however. Michael Twilleager (Twilleager) passed Bekemans' bus while it was parked in the middle of the interstate. Twilleager, a professional driver for a transportation company, had been driving a large passenger van north on I–15 on the night of the crash. About a mile before reaching Bekemans, Twilleager saw two pairs of taillights in front of him. Twilleager watched the vehicle in the left lane pull away from the other vehicle, and then the taillights in the right lane disappeared. Twilleager mistakenly assumed that the vehicle had pulled onto the shoulder of the road. As he approached, Bekemans' lights remained off. Twilleager saw Bekemans' bus in his lane at the last moment. He was able to narrowly avoid a collision by swerving into the left lane. He immediately called 9–1–1 to warn of the situation.

¶ 12 Jeff Buchman (Buchman), a professional truck driver, also passed Bekemans' bus on the night of the crash. Buchman saw what appeared to be flashing lights come on in the right lane as three trucks approached Bekemans' bus a ways in front of him. He watched as the three trucks put on their left turn signals and went around the flashing lights. After the three trucks had passed, the flashing lights disappeared. Buchman heard the drivers talking to each other on their CB radios, so he knew that a vehicle was in the road. Buchman slowed down to forty-five miles per hour and approached with his bright headlights on. Even so, Buchman did not see the bus in front of him until Bekemans turned her lights back on when he was one-quarter of a mile away. Buchman moved into the left lane and passed Bekemans going thirty miles per hour. After he passed the bus, Buchman warned a driver behind him on his CB radio that a bus was stopped in the middle of the interstate.

¶ 13 Davis received no such warning. He was traveling north on I–15 on July 28, 2009, on his way home to Red Lodge from Boise, Idaho. He was eighteen years old. Davis was reportedly driving well above the seventy-five mile-per-hour speed limit, and the toxicology report indicated that he had consumed an entire bottle of RobitussinCough Syrup. Even so, a number of drivers whom he had passed just miles before the collision testified that they did not observe anything to indicate that his driving was impaired.

¶ 14 Unlike Twilleager and Buchman, Davis did not see Bekemans' bus in the middle of the interstate until it was too late. Davis may have swerved to the right a split-second before the collision, but there were no skid marks and no indication that he had attempted to engage his brakes. A witness testified that he saw Bekemans' bus with its lights on just after the moment of impact.

¶ 15 Bekemans was charged with criminal endangerment, a felony, and other traffic violations as noted above. J.B. Anderson (Anderson), the first attorney assigned to represent Bekemans, moved to withdraw from the case at Bekemans' request on Thursday, November 4, 2010. The next day, the District Court scheduled a show-cause hearing for Tuesday, November 9th. A notice was mailed to Bekemans informing her that her attendance was required. Bekemans failed to appear at the hearing.

¶ 16 At the hearing, the judge told Anderson that he wanted to hear from Bekemans. Anderson responded that he had talked to Bekemans on the phone the day before the hearing. He said that he made sure that Bekemans knew about the hearing. Anderson also said that he had told Bekemans that he could ask for a continuance if she could not make it, but that she had not asked him to do so. The judge informed Anderson that he was considering issuing a bench warrant and asked him to speak on Bekemans' behalf. Anderson responded, “I would hate to see that happen, but maybe she needs a wake-up call. I just think this is a person that just doesn't give a rip, Your Honor.” Anderson did, however, convince the judge to not issue a bench warrant at that time. The judge rescheduled the hearing for November 23, 2010, which Bekemans attended and participated in. At the hearing, the court found that Anderson and Bekemans had lost all meaningful ability to communicate and granted Anderson's motion to withdraw.

¶ 17 The District Court conducted a two-day trial on April 21–22, 2011. The jury convicted Bekemans of felony criminal endangerment and a number of the charged misdemeanor traffic offenses. Bekemans was sentenced to the custody of the Montana Department of Corrections (DOC) for ten years with all but five years suspended. The sentencing order requires Bekemans to complete a specific rehabilitation program before she can be released from custody.

STANDARD OF REVIEW

¶ 18 We review de novo claims of insufficient evidence. State v. Swann, 2007 MT 126, ¶ 19, 337 Mont. 326, 160 P.3d 511. Claims that a defendant received ineffective assistance of counsel are mixed questions of fact and law, which we also review de novo. State v. Kougl, 2004 MT 243, ¶ 12, 323 Mont. 6, 97 P.3d 1095. We exercise plenary review over constitutional questions, including allegedviolations of a defendant's constitutional right to be personally present at all critical stages of trial. State v. Charlie, 2010 MT 195, ¶ 21, 357 Mont. 355, 239 P.3d 934.

DISCUSSION

¶ 19 Issue One: Whether sufficient evidence supports Bekemans' criminal endangerment conviction.

¶ 20 We review the record for sufficient evidence in the light most favorable to the prosecution. State v. Gunderson, 2010 MT 166, ¶ 58, 357 Mont. 142, 237 P.3d 74. There is sufficient evidence to support a conviction if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Finley, 2011 MT 89, ¶ 18, 360 Mont. 173, 252 P.3d 199. It is the jury's role as factfinder to evaluate the credibility of witnesses, weigh the evidence, and ultimately determine which version of events should prevail. State v. Weigand, 2005 MT 201, ¶ 7, 328 Mont. 198, 119 P.3d 74. Thus, it is immaterial to our review whether the evidence could have also supported a different result. Weigand, ¶ 7.

¶ 21 A person commits the offense of criminal endangerment if the person knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another. Section 45–5–207(1), MCA. With respect to the offense of criminal endangerment, a person acts knowingly when the person is aware that there exists the high probability that her conduct would create a substantial risk...