State v. Rowe

415 Mont. 280

STATE OF MONTANA, Plaintiff and Appellee,

v.DANIEL CHRISTOPHER ROWE, Defendant and Appellant.

No DA 22-0547

Submitted on Briefs August 16, 2023

Decided February 27, 2024

2024 MT 37

415 Mont 280

__P 3d__

1. Criminal Law & Procedure - Appeals - Standards of Review - Abuse of Discretion - Evidence - Admissibility - Conduct Evidence - Prior Acts, Crimes & Wrongs - Procedural Matters - Rulings on Evidence

A trial court’s decision on whether to admit evidence of other crimes, wrongs, or acts under Mont R Evid 404(b), is directed to the relevance and admissibility of such evidence and thus reviewed for an abuse of discretion An abuse of discretion occurs when a district court acts arbitrarily without conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice To the extent an evidentiary ruling is based on an interpretation of an evidentiary rule or statute, an appellate court’s review is de novo

2. Constitutional Law - Fundamental Rights - Procedural Due Process - Scope of Protection - Criminal Law & Procedure - Appeals - Standards of Review - Abuse of Discretion - Reversible Error - Jury Instructions - Trials - Burdens of Proof - Prosecution

An appellate court reviews a district court’s jury instructions in a criminal case to assess whether the instructions, when considered as a whole, fully and fairly instructed the jury on the applicable law The appellate court will only reverse if the district court abused its discretion in a way that prejudicially affected a defendant’s substantial rights If the instructions are erroneous in some aspect, the mistake must prejudicially affect the defendant’s substantial rights in order to constitute reversible error Jury instructions that relieve the State of its burden to prove each element of an offense violate a defendant’s right to due process

3. Criminal Law & Procedure - Sexual Assault - Abuse of Children - Elements

The cognizable offense of felony Sexual Assault of a Minor less than 16 years old is defined by Mont Code Ann § 45-5-502(1) and (3), which expressly sets forth the essential elements of proof Notably, the offense does not provide for sexual assaults committed pursuant to a common scheme

4. Criminal Law & Procedure - Sexual Assault - Abuse of Children - Penalties

The Legislature has designated certain offenses that may be committed pursuant to a common scheme which, if this essential element is proven, will qualify the offender for an enhanced penalty Mont Code Ann §§45-6-301(7)(b)(ii), -309(4)(c), -312(2), -316(3)(c), -317(2)(c), -325(4)(c), -341(2), and 45-7-210(2)(b) Common scheme is defined in Mont Code Ann § 45-2-101(8) as a series of acts or omissions resulting in a pecuniary loss to the victim The legislature thus chose to provide enhanced penalties for certain enumerated property offenses by specifically setting forth a common scheme element and then defining common scheme in § 45-2-101(8) Accordingly, common scheme offenses are exclusively property crimes with felony-enhanced penalties reflecting the magnitude of the resulting pecuniary loss to the victim § 45-2-101(8) In contrast, nowhere in the statutory definition of the offense of felony Sexual Assault of a Minor is there any express or implied reference to a common scheme as a penalty enhancer or essential element of proof Mont Code Ann § 45-5-502(1) and (3) As defined by § 45-5-502(1) and (3), the offense of Sexual Assault of a Minor is thus neither cognizable, nor chargeable, as a common scheme offense

5. Criminal Law & Procedure – Jurisdiction & Venue – Venue

Mont Code Ann § 46-3-112(1) provides that if two or more acts are committed in furtherance of a common scheme, the charge may be filed in any county in which any of the acts or offenses occurred Section 46-3-112, which is contained in Chapter 3—Venue, is no more than a venue provision regarding the correct geographic situs of the prosecution Section 46-3-112(1), is thus merely a procedural provision having no bearing on either the substantive nature of the charged criminal conduct in a particular case, or the statutorily specified required elements of proof

6. Criminal Law & Procedure – Criminal Offenses

Even when set forth within the definition of a statutory offense, a common scheme offense still requires proof of the elements of each repeated commission of the base offense Mont Code Ann § 45-2-101(8) It thus follows that each of the repeated commissions of the offense charged as the predicates for the alleged common scheme must generally be distinctly pled in separate counts Mont Code Ann § 46-11-404(1) and (3)

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

Under Mont R Evid 401 and 402, any evidence tending to make the existence of any fact of consequence more or less probable is generally admissible, except as otherwise provided by constitutional law or statutory or common law rules of evidence As a theory of admissibility, Mont R Evid 404(b) generally bars admission of other uncharged bad acts of the defendant as prejudicial bad character or propensity evidence Other bad acts evidence may yet be admissible, in the discretion of the court, for some other relevant purpose such as proof of the defendant’s motive, intent, or common plan Mont R Evid 401-02 and 404(b)

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

Mere reference to a permissible non-propensity theory of admissibility under Mont R Evid 404(b) or the statutory transaction rule is insufficient alone to avoid Rule 404(b)’s express bar of propensity evidence Other uncharged bad acts evidence is admissible under the alternative clause of Rule 404(b) only if the proponent can clearly articulate how it fits into a chain of logical inferences, no link of which may be an inference that the defendant had the propensity or was predisposed to commit such an offense and thus committed the charged offense in conformity with that propensity or predisposition

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

Evidence is admissible under the statutory transaction rule in the discretion of the court only if it is inextricably linked or intertwined with the alleged criminal conduct and is relevant to an essential element of the offense and provides a comprehensive and complete picture necessary for a full explanation or understanding the entire criminal transaction at issue Nonetheless, the statutory transaction rule is still subject to the unqualified Mont R Evid 404(b) preclusion of propensity evidence

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

The admissibility of other bad acts evidence in the face of the Mont R Evid 404(b) propensity restriction depends, not on the substance of the evidence, but on the particular non-propensity purpose for which the proponent demonstrates its relevance However, even when offered for a legitimate non-propensity purpose, courts must still consider and balance the likely prejudicial effect of the substantive nature of other bad acts evidence against its relative probative value for the permissible non-propensity purpose offered Mont R Evid 403

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

The need and demand for careful consideration and application of Mont R Evid 403 is particularly critical in the case of other bad acts evidence because, even when otherwise validly admissible for a non-propensity purpose, such evidence is inherently prejudicial insofar that it impugns or has the tendency to impugn the character of the accused based on matters not directly at issue, thus arousing or provoking hostility against him or her without regard to its probative value, thereby inviting or tempting the jury to find guilt on an improper basis This inherent danger is even more acute when the other bad acts evidence pertains to child molestation The Supreme Court of Montana has thus repeatedly warned districts courts, and the State, to exercise great caution in the use of prior acts evidence regarding child sexual abuse

12. Criminal Law & Procedure – Defenses – Consent – Sexual Assault – Abuse of Children – Elements

The offense of sexual assault occurs when a person knowingly subjects another person to any sexual contact without consent Mont Code Ann § 45-5-502 Consent is ineffective when the victim is less than 14 years old and the offender is 3 or more years older than the victim Section 45-5-502(5)(a)(ii) Montana law provides three different definitions of knowingly one that is conduct-based, one that is result-based, and one regarding the existence of a particular fact that is an element of an offense Mont Code Ann § 45-2-101(35) 13. Criminal Law & Procedure – Acts & Mental States – Mens Rea – Knowledge

The conduct-based definition of knowingly provides a person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when the person is aware of the person’s own conduct or that the circumstance exists Mont Code Ann § 45-2-101(35) The results-based definition provides a person acts knowingly with respect to the result of conduct described by a statute defining an offense when the person is aware that it is highly probable that the result will be caused by the person’s conduct § 45-2-101(35) Whether an offense is a conduct-based offense or a result-based offense, is determined by an analysis of its elements

14. Criminal Law & Procedure – Jury Instructions – Particular Instructions – Elements of Offense – Acts & Mental States – Mens Rea – Knowledge

The district court must instruct the jury on what knowingly means in the context of the particular crime Courts may not present a smorgasbord approach such...