State v. Peterson

415 Mont. 34

2024 MT 5

STATE OF MONTANA, Plaintiff and Appellee,

v.NELS JERRY PETERSON, Defendant and Appellant.

No. DA 21-0646.

Submitted on Briefs November 8, 2023.

Decided January 16, 2024.

2024 MT 5.

415 Mont. 34.

___ P.3d ___.

1. Criminal Law & Procedure – Standards of Review – Abuse of Discretion – Evidence – Admissibility – Procedural Matters – Rulings on Evidence

An appellate court reviews evidentiary rulings for an abuse of discretion. A trial court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.

2. Evidence – Admissibility – Character Evidence – Conduct Evidence – Prior Acts, Crimes & Wrongs

As a general rule, character evidence is not admissible to prove conduct. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show action in conformity therewith. Mont. R. Evid. 404(b). The danger in admitting evidence of prior bad acts is that the jury will prejudge the accused and deny him a fair opportunity to defend against a particular charge.

3. Evidence – Inferences & Presumptions – Inferences – Admissibility – Conduct Evidence – Prior Acts, Crimes & Wrongs

Prior bad acts may be admissible for non-propensity purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Mont. R. Evid. 404(b). Rather than prohibiting the admission of evidence, Rule 404(b) prohibits a theory of admissibility. Evidence of prior bad acts is not admissible if it is offered for a purpose that requires the inference from bad act to bad person to guilty person, but may be admissible if it proves a material issue without requiring any inference to the defendant’s criminal disposition. The distinction between admissible and inadmissible Rule 404(b) evidence thus turns on the intended purpose of the evidence, not its substance.

4. Evidence – Inferences & Presumptions – Inferences – Admissibility – Conduct Evidence – Prior Acts, Crimes & Wrongs

To prevent the permissible uses of Mont. R. Evid. 404(b) from overpowering the general rule barring propensity evidence, a trial court must ensure that the use of prior bad acts evidence is clearly justified and carefully limited. Mere reference to a permissible purpose is insufficient for admission of other acts evidence under Rule 404(b). Other acts evidence is admissible for a permissible Rule 404(b) purpose only if the proponent can clearly articulate how that evidence fits into a chain of logical inferences, no link of which may be the inference that the defendant has the propensity to commit the crime charged.

5. Evidence – Admissibility – Conduct Evidence – Prior Acts, Crimes & Wrongs

Evidence is admissible to show motive when separate acts can be explained by the same motive.

6. Evidence – Relevance – Relevant Evidence

The existence or non-existence of a motive to commit a charged offense is generally a relevant consideration in the assessment of whether an accused had the requisite criminal mental state.

7. Criminal Law & Procedure – Criminal Offenses – Acts & Mental States – Actus Reus – Mens Rea – General Intent

A typical prosecution is reducible to three components: (1) someone committed the actus reus (i.e., forbidden act) alleged in the indictment or information; (2) that person possessed the requisite mens rea (i.e., criminal intent or state of mind); and (3) that person was the defendant.

8. Evidence – Relevance – Exclusion of Relevant Evidence – Confusion, Prejudice & Waste of Time – Admissibility – Conduct Evidence – Prior Acts, Crimes & Wrongs

Evidence that is offered for a valid purpose under Mont. R. Evid. 404(b) remains subject to the balancing test prescribed by Mont. R. Evid. 403. Rule 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Because relevant evidence is inherently prejudicial to the opposing party, the rule expressly applies only to evidence that poses a danger of unfair prejudice. Additionally, the Rule 403 balancing test favors admission because the risk of unfair prejudice must substantially outweigh the evidence’s probative value. A trial judge is in the best position to evaluate the evidence’s potentially prejudicial effect and has broad discretion in ruling on the admission of prejudicial evidence.

9. Evidence – Admissibility – Conduct Evidence – Prior Acts, Crimes & Wrongs

The Supreme Court of Montana repeatedly has warned district courts and the State of Montana to exercise great caution in the use of prior acts evidence regarding child sexual abuse. This caution arises from the highly inflammatory nature of child sexual abuse evidence.

10. Evidence – Admissibility – Conduct Evidence – Prior Acts, Crimes & Wrongs

Evidence of a defendant’s prior bad conduct may amplify its inherently prejudicial nature by virtue of the manner in which it is presented and used.

11. Evidence – Relevance – Exclusion of Relevant Evidence – Confusion, Prejudice & Waste of Time – Admissibility – Conduct Evidence – Prior Acts, Crimes & Wrongs

Unfair prejudice within its context of the other acts evidence means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.

12. Criminal Law & Procedure – Trials – Defendant’s Rights – Right to Fair Trial – Appeals – Reversible Error – Structural Errors

Montana has adopted a two-step analysis to determine whether an error prejudiced a criminal defendant’s right to a fair trial and is therefore reversible. The first step in conducting harmless error analysis is to determine whether the error is structural error or trial error. A structural error affects the framework within which the trial proceeds, while trial error typically occurs during the presentation of a case to the jury. Trial error is reviewed qualitatively for prejudice relative to other evidence introduced at trial.

13. Criminal Law & Procedure – Standards of Review – Harmless & Invited Error – Evidence – Trials – Defendant’s Rights – Right to Fair Trial – Harmless Error

The second step in the analysis to determine whether an error prejudiced a criminal defendant’s right to a fair trial and is therefore reversible is to determine under the cumulative evidence test whether the trial error was harmless. If the tainted evidence was admitted to prove an element of the offense, then the State of Montana must direct an appellate court to admissible evidence that proves the same facts as the tainted evidence and demonstrate that the quality of the tainted evidence was such that there was no reasonable possibility it might have contributed to the conviction.

14. Evidence – Weight & Sufficiency

The Van Kirk test is about the qualitative aspect of the tainted evidence, not the quantitative.

Appeal from the District Court of Ravalli County.

Twenty-First Judicial District Court, Cause No. DC 19-135.

Honorable Howard F. Recht, Judge.

District court abused its discretion in defendant’s trial for felony sexual assault of his minor step-granddaughter by permitting evidence of defendant’s prior sexual conduct with other young girls in his family under Mont. R. Evid. 404(b) and 403 because, although some of the evidence may have been admissible for the permissible purpose under Rule 404(b) of showing motive and intent, the potential for unfair prejudice substantially outweighed the probative value as presented in that the volume and detail of the other acts evidence, combined with the jury’s knowledge that defendant had faced few, if any, consequences for his acts, tipped the balance of prejudice when weighed against its probative value. The State of Montana also did not met its burden to show no reasonable possibility that its use of the tainted evidence might have contributed to defendant’s conviction.

Reversed and remanded.

For Appellant: Chad Wright, Appellate Defender, Michael Marchesini, Assistant Appellate Defender, Helena.

For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena; William E. Fulbright, Ravalli County Attorney, Angela Wetzsteon, Deputy County Attorney, Hamilton.

JUSTICE BAKER delivered the Opinion of the Court.

¶1 Nels Jerry Peterson appeals his November 2021 judgment of conviction in the Montana Twenty-First Judicial District Court, Ravalli County, on the offense of sexual assault. We address the following restated issue:

Did the District Court abuse its discretion by permitting evidence of Peterson's prior sexual conduct with other young girls under M. R. Evid. 404(b) and 403?

We conclude that, although some of the evidence may have been admissible for a permissible purpose under Rule 404(b), the potential for unfair prejudice substantially outweighed its probative value as presented. We therefore reverse and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Peterson was charged with felony sexual assault of his eleven-year-old step-granddaughter (Q.H.) for allegedly putting his hand between her legs and moving his fingers one night when they were watching television together in Q.H.’s home in the summer of 2018. Q.H. told her mother about the incident in February 2019, and her mother reported it to law enforcement. In a forensic interview conducted at Emma’s House, a local children’s advocacy center, Q.H. disclosed that she sat on Peterson’s lap while they were watching TV together and the touching occurred when her grandmother left the room to use the restroom. Q.H. said that she slapped Peterson’s hand away and moved to the other end of the couch. Q.H. said that the only other time Peterson made her feel uncomfortable was one previous occasion when she was at his home and he had on only his...