State v. Bowen, 2015 MT 246 (Aug. 18, 2015) (McKinnon, J.) (5-0, aff’d)
Issue: (1) Whether the district court abused its discretion in allowing Nelson to testify as a witness at trial; and (2) whether the district court erred in denying Bowen’s motion to dismiss for insufficient evidence.
Short Answer: (1) No; and (2) no.
Facts: Montana Department of Transportation employees found Brian Doyle’s body Jan. 20, 2012, in a ditch along Hwy. 2. An investigation determined his death occurred the night of Jan. 11, 2012. The temperature that night was between -4 and -7 degrees, and Doyle was dressed in a short-sleeved t-shirt, a sleeveless undershirt, pajama pants under his jeans, and socks. Bowen was eventually identified as person of interest, and then a suspect. The forensic pathologist, Bennett, determined Doyle had likely been run over while lying down, but that he died of hypothermia, which would have taken about three hours.
Bowen was charged with negligent homicide, a felony. Bowen’s roommate, Kerley, told investigators that a friend of Bowen’s, Dianna Nelson, had called to tell him Bowen had talked to her about leaving Doyle on the road, and that Dianna had told him to go back. Bowen’s counsel was made aware of Kerley’s statement and provided a transcript of Kerley’s interview. The state eventually found Nelson in Louisiana. She was interviewed by an investigator in April 2013. Bowen’s counsel was given notice the next day of the state’s intent to call her as a witness, and given a transcript of her interview with the investigator two days later.
At trial, Nelson testified that Bowen called her after leaving Doyle, saying he was not sure he had run over Doyle, and that he had Doyle’s coat. Nelson told Bowen to go back on check on him, and Bowen said he was scared. Undisputed phone records establish that Bowen called Nelson at 10:37 p.m. on Jan. 11, 2012, and the call lasted 30 minutes.
Bowen moved to exclude Nelson’s testimony, arguing late disclosure and untimely notice. The court heard argument and denied the motion.
Procedural Posture & Holding: After a four-day jury trial in June 2013, Bowen moved to dismiss the charges based on insufficient evidence. The motion was denied, and they jury convicted Bowen of negligent homicide. The district court sentenced Bowen to 20 years in MSP. Bowen appeals, and the Supreme Court affirms.
Reasoning: (1) The efforts made by the state to find Dianna were “exemplary and thorough.” ¶ 24. Through Kerley’s statements, the defense was aware of Nelson early in the investigation. Second, the state’s efforts to find and interview Nelson wee significant and ongoing and would have put Bowen on notice that the state expected to call her at trial Third, the state notified Bowen immediately upon finding her, and made her interview available six weeks before trial. Fourth, the defense interviewed Nelson five days before the pretrial hearing and 10 days before she testified. Finally, the defense did not ask for a continuance.
(2) There was sufficient evidence for a reasonable jury to conclude that Bowen’s vehicle caused Doyle’s injuries. Bowen created the peril, then failed to render and seek aid, causing Doyle’s death. The district court did not err in denying Bowen’s motion to dismiss.