State v. B. McGhee

08/03/2021
DA 19-0608
Case Number: DA 19-0608
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 193STATE OF MONTANA,
Plaintiff and Appellee, FILLD
v. AUG 0 3 2021
BOVVerl Greenwood
Court
BARAK JAMES MCGHEE, Clerk of Supreme
State of Montana
Defendant and Appellant.
APPEAL FROM: District Court ofthe Seventh Judicial District,
In and For the County of Richland, Cause No. DC-18-125
Honorable Katherine M. Bidegaray, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Megan M. Moore, Watson Law Office, PC,Bozeman, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Janet Christoffersen, Richland County Attorney, Charity McLarty, Deputy
County Attorney, Sidney, Montana
Submitted on Briefs: April 7, 2021
Decided: August 3, 2021
Filed:
Clerk
Justice Dirk Sandefur delivered the Opinion of the Court.
Barak James McGhee appeals his 2019 judgment of conviction and sentence in the
Montana Thirteenth Judicial District Court, Richland County, on the offense of Indecent
Exposure to a Minor, a felony in violation of § 45-5-504(3), MCA. We address the
following restated issues:
1. Whether the District Court erroneously allowed cross-examination ofMcGhee
about a prior allegation ofsexual misconduct toward his daughters to rebut his
assertion that he previously had an "awesome" relationship with them?
2. Whether the District Court erroneously imposed an unduly harsh sentence?
We affirrn.
FACTUAL AND PROCEDURAL BACKROUND
¶2 On November 21, 2018, the State charged McGhee by Information with two counts
of Indecent Exposure to a Minor, based on an allegation that he exposed his penis to his
nine-year-old twin daughters. The allegation arose in the context of the ongoing strained
relationship between McGhee and the girls' rnother (Mother) following their breakup in
2012. The breakup resulted in a court-ordered parenting plan which gave McGhee custody
of the girls on alternating weekends. In 2018, Mother alleged to police that, on or about
September 7, 2018, the twins told her that, during their last weekend stay with McGhee, he
pulled his pants down and showed them his "private parts" in their bedroom at his home in
Sidney, Montana. The revelation allegedly occurred in the context of her styling the girls'
hair for school photos and discussing their upcoming weekend stay with McGhee. In
subsequent forensic interviews conducted by a child protection specialist, the girls told the
2
interviewer, consistent with Mother's initial report, that he dropped his pants and showed
them his "naughty parts" in response to a question from one of them about "how babies
were made."
At the final pretrial status hearing on May 13, 2019, McGhee objected to a reference
on the State's trial exhibits list to investigatory materials obtained from North Dakota law
enforcement authorities regarding a 2015 allegation by Mother that he exposed his penis
to the girls, put a candy sucker on it, and had them lick the sucker. Mother further alleged
that he also placed a sucker on or near the vagina of one of the girls and then licked the
vaginas of both girls. McGhee denied the allegations and the ensuing investigation resulted
in no criminal charges. During the pendency of the investigation, however, Mother
obtained a temporary civil court order suspending his access to the girls under the parenting
plan. The order remained in effect for almost two years, apparently due to his inability to
get confirmation of the close of the investigation. In July 2017, following court-ordered
reunification therapy, the North Dakota court reinstated his parenting rights under the prior
parenting plan.
¶4 Based on McGhee's pretrial objection in this case, the court ordered simultaneous
pretrial briefing on the admissibility of the 2015 North Dakota allegations in regard to the
subject offenses. The resulting briefing focused on whether the prior North Dakota
allegations would be properly adrnissible at trial under M. R. Evid. 404(b) for a legitimate
non-propensity purpose. Pursuant to State v. Madplume,2017 MT 40, 386 Mont. 368, 390
P.3d 142, the State asserted that the prior bad acts evidence would be admissible as
3
evidence that McGhee committed the subsequently charged offenses in accordance with a
cornmon plan, motive, or intent. He countered that Madplume was distinguishable and that
the North Dakota allegations were otherwise insufficient under M. R. Evid. 404(b) for the
State's asserted purpose. On the morning of trial, and in the wake of the State's objection
to a suggested continuance to allow McGhee adequate time to review and address the
particulars in the North Dakota materials,' the District Court sustained his earlier objection
and barred the State from introducing or referencing the North Dakota allegations without
prior leave of court.
¶5 At trial, after presentation of the State's case-in-chief, McGhee presented the
testimony of his two brothers and long-tirne girlfriend who described his relationship with
the girls as "wonderful,""excellent," or "great." His girlfriend further testified that, during
their six-year relationship, she never saw the girls fearful of McGhee or saw anything
"inappropriate." One ofhis brothers sirnilarly testified that,"[a]ll I ever saw was him being
a good dad."
¶6 McGhee then testified on his own behalf. When asked by counsel to "describe [his]
relationship with [the] girls," he answered:
[B]efore all this, absolutely awesome. . . . I adore them, they . . . adore me.
. . . [T]hey're always wanting to do stuff and they're always asking rne, . . .
how to do sorne cool stuff. . .[a]nd . . . I'd like to think that we have a good
relationship.
I For reasons unclear on the record, McGhee and his counsel had apparently not yet had the
opportunity to review some or all ofthe North Dakota investigative materials obtained by the State
regarding the prior allegations.
4
[Counsel]: Did they ever express any desire to not be around you?
[McGhee]: No, actually, quite the opposite. They would express
regular[ly] that they wished they could live with rne and they
would say . . . they love to [go] back to their rnom [because]
they love their little brothers ... but, they multiple times stated
that they wanted to live with me.
[Counsel]: Did you have any reason to believe that they didn't want to be
around you?
[McGhee]: No, not at all.
(Emphasis added.)
¶7 At a sidebar following McGhee's direct testimony, the State asked the court to
reconsider its earlier ruling barring reference to the prior North Dakota allegations. The
prosecutor asserted that, in light of McGhee's testirnony that he had an "awesome"
relationship with the girls, the State:
is basically hamstrung, at this point, without bringing in prior bad acts[.] . . .
[W]e can't really refute the fact without bring[ing in]. .. that the relationship
has not always been a good relationship[,] as he's trying to show the jury[.]
So,. . . the State is not able to counter without using .. . some ofthose [prior
allegations]. So, we are asking for leniency in cross . . . [to] ask him those
questions.
Through counsel, McGhee objected on relevance grounds, to wit:
Judge, we did not open the door for 404(b). The State also asked questions
about the girls' relationship and how they missed their dad and I was very
careful . . . , I tried to tailor my questions with regard to describing things
that happened this last sumrner. I did not ask him 'have you been accused of
anything else.' . . . I tried to tailor it with regard to, specifically, this last
summer. . . . [I]f he said I've always ha[d] a good relationship with them, I
do not believe that opens the door to a whole can of worms of allegations
from another jurisdiction which, again, I still have not had the opportunity to
5
ferret out. I think . . . simply saying he's had a good relationship with his
daughters does not open that door. Everyone . . . has indicated that the girls
love their dad and that they miss their dad. That, in and of itself, is — we're
all trying to play within the perimeters of avoiding talking about some other
alleged act.
¶8 The District Court concluded, however, that McGhee's response to the defense
questioning about the nature of his relationship with his girls was sufficiently "broad" to
"openll up the door" by making the prior allegations relevant to refute his broad
characterization of the relationship. After the court granted the State "some latitude," the
following colloquy ensued on cross-examination when trial resurned the next day:
[State]: . . .[Y]ou testified that you have an awesome . . . relationship
with your daughters. Is that correct?
[McGhee]: Yes.
[State]: [But] is it not true that there came a point when you didn't have
any relationship with your daughters at all?
[McGhee]: Yes.
[State]: . . . How long did you did you have to go without seeing your
daughters?
[McGhee]: It was about two years.
[State]: And why was that?
[McGhee]: Because . . . there was an allegation made in the past.
[State]: . . . Was it made by your daughters?
[McGhee]: . . .[I]t was made by [their mother] originally and then, yes, the
girls were involved.
[State]: . . . How old were the girls at that time?
6
[McGhee]: Four or five.
[State]: And so,. . . you said it was two years you didn't see them?
[McGhee]: Yes.
[State]: So, why was it two years . . . ?
[McGhee]: . . .[W]hen the original allegation was started,[Mother] started
by calling the local police . . . and the Justice of the Peace . . .
suggested . . . a restraining order until they got things actually
moving with the case ....
[State]: But you're saying the case was closed and they still wouldn't
tell you?
[McGhee]: They didn't tell me, no.
[State]: . . . So, the girls were about . . . four or five when th[e] [prior]
alleged event happened, right?
[McGhee]: Yes.
[State]: . ..[Since] you started having contact with your girls again, are
you able to have them overnights? What was the set up?
[McGhee]: I started having them overnight right away. . . . I'd had them
overnight for well over a year before [the 2018] allegations
carne up.
[State]: ...[Y]esterday [your current girlfriend] testified that you guys
had been together six years?
7
[McGhee]: [Yes].
[State]: So, . . . she's aware of[the North Dakota allegations]?
[McGhee]: Yes[,] . . . absolutely, she's aware of the events.
[State]: . . . [I]sn't it true that yesterday . . . you sat and listened to
testimony where both of your daughters said that[one ofthem]
told [their mother] that you dropped your pants in front of
them?
[McGhee]: Yes, I heard that.
[State]: So, did they get up yesterday and lie[?]
[McGhee]: Yes.
[State]: Why?
[McGhee]: Because they were told to and coerced. Years of being told
that I'm a bad person and all crap that's not true . . . children
are malleable. They're like clay. . . .
[State]: And it has nothing to do that you've been accused of this kind
of behavior before and you might have done this to these girls?
[McGhee]: Absolutely not.
[State]: So, basically it's everyone's fault but yours?
[McGhee]: No, . . . [the] relationship ended not amicably and [their
mother] has had animosity and hatred toward me ever since.
And I do not know why, it's never been explained in a real
way. I know I didn't make her happy, but that's all I really
know.
8
[State]: . . .[H]ave there not been massive issues between you legally
with her in the past?
[McGhee]: No, I don't understand . . what you're trying to insinuate.
[State]: This isn't the first time you've been accused of doing
something inappropriate with your daughters, correct?
[McGhee]: . . No,this is . . . not the first time.
[State]: So, that couldn't be a reason that . . . maybe you guys have
problems?
[McGhee]: No[,] that has been way before any allegation was ever made.
The allegations are her way of a means to an end.
[State]: . . . So, what is the end?
[McGhee]: The end is her having full custody and me not being in the
picture at all.
On redirect, McGhee's counsel followed up on the North Dakota allegations, to wit:
[Counsel]: . . . [Y]ou were asked a question about the prior allegations
. . . from North Dakota, correct?
[McGhee]: Yes.
[Counsel]: And . . . those allegations were investigated but there were no
charges ever stemming from that, correct?
[McGhee]: Yes.
9
[Counsel]: And you were asked about why [Mother] would not . . . care
much about you, . . . [that she] ha[d] issues with you long
before . . . either allegations were made, correct?
[McGhee]: Yes.
Inter alia, the court's instructions oflaw given to the jury prior to closing arguments
included the following limiting instruction (Instruction No. 11):
The State has offered evidence that the Defendant at another time engaged in
other crirnes, wrongs, or acts. That evidence was not admitted to prove the
character ofthe Defendant or to show he acted in conformity therewith. . . .[2]
The Defendant is not being tried for that other crime, wrong, or act. He rnay
not be convicted for any other offense than that charged in this case. For the
jury to convict the Defendant of any other offense than that charged in this
case may result in unjust double punishment of the Defendant.
(Emphasis added.) After deliberation, the jury returned a verdict finding McGhee guilty
of indecent exposure regarding one of the daughters, but not guilty as to the other. Upon
consideration ofthe mandatory presentence investigation report, the included psychosexual
evaluation, and the balance of the sentencing hearing record, the District Court sentenced
him to a 50-year prison terin, with 42 years suspended, but restricted parole eligibility until
after the subject daughter turns 18 years old and his completion of prison-provided sex
offender treatment(Phases I and II). McGhee timely appeals.
2 However, contrary to the earlier-stated purpose for allowing the State to cross-exarnine McGhee
about the prior North Dakota allegations, the limiting instruction further inconsistently instructed
that "[t]he only purpose of admitting that evidence was to show proofofmotive, opportunity, plan,
knowledge, identity, absence ofmistake or accident. You may not use that evidence for any other
purpose." (Ernphasis added.) In its ensuing closing argument, the State repeated that inconsistent
statement of purpose.
10
STANDARD OF REVIEW
¶10 District courts have broad discretion to deterrnine the adrnissibility of evidence in
accordance with the Montana Rules of Evidence and related statutory and jurisprudential
rules. State v. Derbyshire,2009 MT 27,¶ 19, 349 Mont. 114,201 P.3d 811;State v. Parker,
2007 MT 243, ¶ 9, 339 Mont. 211, 169 P.3d 380; State v. Strauss, 2003 MT 195, ¶ 18, 317
Mont. 1, 74 P.3d 1052. Except for related interpretations or applications of law which we
review de novo for correctness, we generally review evidentiary rulings for an abuse of
discretion. Derbyshire, ¶ 19; State v. Passmore, 2010 MT 34, ¶ 51, 355 Mont. 187, 225
P.3d 1229. An abuse of discretion occurs if a court exercises granted discretion based on
a clearly erroneous finding of fact, an erroneous conclusion or application of law, or
otherwise acts arbitrarily, without conscientious judgrnent or in excess of the bounds of
reason, resulting in substantial injustice. State v. Pelletier, 2020 MT 249, ¶ 12, 401 Mont.
454, 473 P.3d 991 (internal citations ornitted); Derbyshire, ¶ 19.
¶11 Criminal sentences eligible for statutory sentence review are reviewable on appeal
only for legality, i.e., whether the court sentenced the defendant in accordance with
governing statutory and constitutional parameters and requirements. State v. Herinan,
2008 MT 187, If 11, 343 Mont. 494, 188 P.3d 978; State v. Ariegwe, 2007 MT 204, If 174,
338 Mont. 442, 167 P.3d 815; State v. Hicks, 2006 MT 71, ¶ 41, 331 Mont. 471, 133 P.3d
206; State v. Herd, 2004 MT 85, ¶ 22, 320 Mont. 490, 87 P.3d 1017; State v. Montoya,
11
1999 MT 180, ¶ 15, 295 Mont. 288, 983 P.2d 937.3 Whether a court imposed a legal
sentence or sentencing condition is a question of law reviewed de novo. State v. Seals,
2007 MT 71, ¶ 7, 336 Mont. 416, 156 P.3d 15; State v. Bull, 2017 MT 247, ¶ 9, 389 Mont.
56, 403 P.3d 670.
DISCUSSION
¶12 1. Whether the District Court erroneously allowed cross-examination ofMcGhee
about a prior allegation ofsexual misconduct toward his daughters to rebut his
assertion that he previously had an "awesome" relationship with them?
¶13 McGhee acknowledges that M.R.Evid. 404(b)does not preclude adrnission ofother
acts evidence for relevant purposes other than as propensity evidence and that a defendant
rnay "open the door" to admission of otherwise inadmissible other acts evidence through
assertions or suggestions in opening statements or elicited witness testimony. He asserts,
however, that his broad staternent that he previously had an "awesome" relationship with
his daughters was not sufficiently specific to "open the door" to cross-examination
regarding the prior North Dakota allegations in this case. He thus asserts that the District
Court erroneously reversed its prior exclusionary ruling. The State asserts that the District
Court correctly allowed limited cross-examination of McGhee regarding the North Dakota
allegations for perrnissible non-propensity impeachment or rebuttal purposes. We
ultirnately agree with the State.
3 Sentence review generally applies only to unsuspended state prison terms, and unsuspended
commitments to the Montana Departrnent of Corrections for appropriate correctional placement,
for "1 year or more." See § 46-18-903(1), MCA; Herd, ¶¶ 19-23.
12
(A) Rule 404(b) Other Acts Evidence.
¶14 "Evidence of other crimes, wrongs, or acts" is generally not admissible for the
purpose of "prov[ing] the character of a person in order to show action in conformity
therewith." M. R. Evid. 404(b). The purpose of this general rule is to preclude an
impermissible jury inference, based on evidence of other uncharged bad acts or allegations,
that an accused is a person of bad character, and thus likely guilty of the charged offense
based on comrnon experience or belief that persons of bad character are predisposed or
have a tendency or propensity to subsequently act in conformance therewith. See M. R.
Evid. 404(b); Madplume,¶ 22 (internal citations omitted); State v. Stewart, 2012 MT 317,
TT 61-62, 367 Mont. 503, 291 P.3d 1187; State v. Mont. Eighteenth Jud. Dist. Ct.
(Salvagni), 2010 MT 263, ¶¶ 47 and 62; 358 Mont. 325, 246 P.3d 415 (internal citations
omitted); State v. Aakre, 2002 MT 101, ¶ 12, 309 Mont. 403, 46 P.3d 648 (Rule 404(b)
purpose "is to prevent convictions that are merely based on a jury finding that [an accused]
has a propensity to do certain things"). The general rule of M. R. Evid. 404(b) thus bars
admission of or reference to other acts for the purpose of supporting an inference of guilt
based on conforrnance with prior bad character.
¶15 Rule 404(b)nonetheless expressly authorizes admission ofother acts evidence when
relevant "for other purposes." M. R. Evid. 404(b)(referencing non-exclusive list of other
potentially relevant non-propensity purposes). Rule 404(b) is a particular "application of
the doctrine of multiple admissibility" under which evidence inadrnissible for one purpose
may yet be admissible for another relevant purpose. Pelletier, ¶ 18 (citing 22B Charles
13
Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure: Evidence § 5243,
132(West 2017)). Read as a whole and contrary to "frequent misconception," Rule 404(b)
does not categorically bar all other acts evidence, but only a particular "theory of
admissibility" of such evidence. Salvagni, ¶ 47 (emphasis original). The alternative or
exception clause of Rule 404(b) is "a contrasting rule of inclusion" for adrnission of other
acts evidence that has independent relevance to a material rnatter at issue other than for
proof of propensity conforrnance. See Pelletier, ¶ 18 (citing Salvagni, ¶ 47 and United
States v. Curtin, 489 F.3d 935, 944 (9th Cir. 2007)); Salvagni, TIT 47 and 62. Under Rule
404(b), the distinction between admissible and inadmissible other acts evidence thus
depends on the particular purpose or effect of the evidence. Madplume, ¶ 23 (citing
Salvagni, ¶¶ 47 and 62-63); Stewart,¶¶ 61-62; Salvagni, ¶ 62.
¶16 Even when properly admissible for a non-propensity purpose, other acts evidence
carries an inherent risk of prejudice clue to the potential that the finder of fact will
nonetheless infer that the accused is guilty based on propensity for conformance with prior
bad character. See State v. Brubaker, 191 Mont. 481,484,625 P.2d 78, 79-80(1981); State
v. Just, 184 Mont. 262, 268, 602 P.2d 957, 960-61 (1979), overruled on other grounds by
Salvagni, ¶ 3; State v. Tiedemann, 139 Mont. 237, 242-43, 362 P.2d 529, 531 (1961). The
risk is arneliorated, or at least fairly mitigated, upon careful balancing of relevance and
limiting factors under M. R. Evid. 401-03, and appropriate cautionary or limiting
instruction under § 46-16-401(1), MCA,and M. R. Evid. 105. See State v. Blaz, 2017 MT
164, ¶ 20, 388 Mont. 105, 398 P.3d 247; Salvagni, ¶ 62.
14
(B) Evidence Bearing on Witness Credibility.
1117 "A11 relevant evidence is admissible" except as otherwise provided by the Rules of
Evidence and related statutory and jurisprudential rules. M. R. Evid. 402. "Relevant
evidence means evidence having any tendency to make the existence of any fact . . . of
consequence to the determination of the action more . . . or less probable." M. R. Evid.
401. "Relevant evidence may include," inter alia,"evidence bearing [on] the credibility
of a witness." M. R. Evid. 401. Credibility is "[t]he quality that makes [witness testimony
or other evidence] worthy of belief." CREDIBILITY, Black's Law Dictionary (11th ed.
2019). "Impeachment evidence is 'evidence tending to cast doubt' on the credibility of a
witness" or witness testimony. Pelletier, ¶ 14(citing State v. Williams, 2018 MT 194,¶ 18,
392 Mont. 285, 423 P.3d 596).
(C) Rule 607(a)Impeachment by Contradiction via Other Acts Evidence.
¶18 A party rnay challenge or attack the credibility of any witness. M. R. Evid. 607(a);
State v. Zimmerman, 2018 MT 94, ¶ 23, 391 Mont. 210, 417 P.3d 289 (also citing Rule
401). See also § 26-1-302, MCA (presumption that a witness speaks the truth "may be
controverted and overcome by any matter that has a tendency to disprove the truthfulness
of [the] witness's testimony"); Pelletier, ¶ 32 (distinguishing Rule 607(a) authorization
from application of M. R. Evid. 404(a)(1) and 608(b)). Arnong the various means of
attacking or impeaching witness credibility preserved thereunder, Rule 607(a)
encompasses and authorizes evidence of impeachrnent by contradiction. Passmore,
759-63 (discussing non-character-based irnpeachment by contradiction); In re Seizure of
15
$23,691.00 in U.S. Currency, 273 Mont. 474, 480-82, 905 P.2d 148, 152-53 (1995)
(distinguishing Rule 608(b) irnpeachment of character for truthfulness from
non-character-based impeachment of credibility); State v. Goinrnenginger, 242 Mont. 265,
272, 790 P.2d 455, 459-60(1990)(noting that extrinsic evidence of bias/motive to testify
falsely was pertinent to a witness's credibility for truthfulness but not subject to the
extrinsic evidence bar of Rule 608 because offered as impeachment evidence directly
probative of guilt rather than as propensity evidence regarding witness's character for
untruthfulness); State v. Hayes,462 P.3d 1110, 1117-20 (Idaho 2020)(distinguishing Rule
608(b) cross-examination impeachment of character for untruthfulness and extrinsic
evidence bar frorn non-character-based witness impeachrnent via extrinsic evidence of
contradictory facts, bias, or undue influence); 28 Charles A. Wright & Victor J. Gold,
Federal Practice and Procedure: Evidence § 6118, 113-14 (2d ed. 2019)(distinguishing
permissible Rule 608(b) cross-examination in re witness character for truthfulness from
Rule 607 impeachrnent evidence rebutting/contradicting truth or accuracy of witness
testirnony); Commission Comments to M.R.Evid.607(1976)(noting "traditional methods
of impeachment . . . preserved by this rule").4
¶19 Impeachment by contradiction is attacking "the credibility of a witness" by
cross-examination or extrinsic evidence offered "to prove that a fact which the witness
4See also § 26-1-302(9), MCA (presumption that a witness speaks the truth "may be controverted
and overcome by any matter that has a tendency to disprove the truthfulness of [the] witness's
testirnony," including "evidence contradicting the witness's testimony," inter alia).
16
asserted or relied upon in [his or her] testirnony is not true." Passmore,¶ 59. Evidence of
impeachment by contradiction has two related but distinct purposes—first, as a basis for
an "inference that the witness either lied or was mistaken with respect to the specific fact
contradicted," and second, as a basis for an inference that the witness is thus a generally
"unreliable source of information" and therefore similarly mistaken, dishonest, or
unreliable as to the balance of his or her testimony. Passmore, ¶ 59. While impeachment
by contradiction may relate either to a matter that is directly at issue or only ancillary or
collateral thereto, adrnission is in either event subject to balancing under the relevance and
limiting factors of M. R. Evid. 401-03. Passmore, ¶¶ 60-61 (recognizing Rule 403
displacement of "too rnechanistic" common law "collateral-fact rule"). Thus, when
relevant and admissible for non-propensity impeachment purposes under M. R. Evid.
401-03 and 607(a), evidence of impeachment by contradiction is admissible via
cross-examination or extrinsic evidence regarding other acts regardless of the general rule
ofRule 404(b). See M. R. Evid. 404(b)("other acts" alternative/exception); Pelletier, ¶ 32
(citations omitted); State v. Polak, 2018 MT 174, ¶¶ 21-23, 392 Mont. 90, 422 P.3d 112;
Passmore, ¶¶ 60-61.5
5 In contrast to evidence of impeachment by contradiction, evidence of general contradiction is
evidence offered for the non-impeachrnent purpose of either directly contradicting previously
admitted testimony or evidence, or indirectly challenging or undermining its veracity. United
States v. Williamson,424 F.2d 353,355 (5th Cir. 1970)(distinguishing irnpeachment evidence and
general contradictory evidence). Accord United States v. Finis P. Ernest, Inc., 509 F.2d 1256,
1263 (7th Cir. 1975) ("[i]mpeachment is an attack upon the credibility of a witness" but "[a]
witness'[s] testimony may be contradicted without being impeached"—citing Williamson). Often
used in tandem with the related term "credibility," "veracity" means "[c]onsistency with the
truth[,] accuracy." VERACITY, Black's Law Dictionary (11th ed. 2019).
17
(D) Rule 404(a) Good Character Impeachment/Rebuttal by Other Acts Evidence.
¶20 Distinct from Rule 607(a) evidence of impeachment by contradiction, and
regardless of the general rule of M. R. Evid. 404(b), M. R. Evid. 404(a)(1) specifically
authorizes admission via cross-examination or extrinsic evidence of otherwise
inadmissible other acts evidence when relevant to rebut defense evidence that the accused
has a pertinent good character trait inconsistent with the alleged offense, and which is
usually elicited "for the purpose of supporting an inference that he or she is not guilty."
Pelletier, ¶¶ 16 and 19 (citations ornitted). Accordingly, defense presentation or elicitation
of good character evidence ("e.g., that he or she is honest, trustworthy, has moral integrity,
or is a peaceful, non-violent, loving, caring, or law-abiding person," etc.) rnay, in the
discretion of the court, "open the door" to cross-exarnination or extrinsic evidence
regarding other prior bad acts to the contrary. Pelletier, ¶¶ 16 and 19 (citations omitted).
(E) Other Acts Explaining/Correcting a False Impression or Rebutting an Attack
on Another Witness's Testimony.
¶21 Distinct frorn evidence ofimpeachment by contradiction and good character rebuttal
evidence under M. R. Evid. 607(a) and 404(a)(1), a defendant may, by opening statement
or elicited witness testirnony, further "open the door to cross-examination or extrinsic
evidence regarding otherwise inadmissible other acts evidence which then becomes
relevant for the purpose of explaining or correcting a pertinent false impression or
assertion, or rebutting an attack on the credibility of another witness. See Polak, ¶¶ 21-23;
State v. Guill,2010 MT 69,¶ 39, 355 Mont.490,228 P.3d 1152(internal citations ornitted);
State v. Cesnik, 2005 MT 257, ¶¶ 15-17, 329 Mont. 63, 122 P.3d 456; State v. Weitzel,
18
2000 MT 86, ¶ 35, 299 Mont. 192, 998 P.2d 1154; State v. Veis, 1998 MT 162, ¶ 18, 289
Mont. 450, 962 P.2d 1153.
¶22 In Guill, the district court ruled in lirnine that various uncharged incidents of
violence and abusive conduct by the defendant against his ex-wife and other family
members would be admissible pursuant to § 26-1-103, MCA (transaction rule), and the
Rule 404(b) exception for proof of comrnon plan or scheme, as proof that he subjected his
daughter to sexual intercourse without consent(SIWC)over a period of years as charged.
Guill, TT 3-10. The affirmative ruling was limited, however, to prior incidents of which
the victim-daughter was aware, except to the extent that the defendant might subsequently
"open the door," upon cross-exarnination of a State witness, to a broader scope of prior
incidents of violence against other family members. Guill, ¶ 8. In his opening statement
at trial, the defendant, through counsel, categorically denied committing the charged
offense and further suggested that his daughter and ex-wife fabricated the SIWC allegation
as a means to get money and property he intended to bequeath to his girlfriend. Guill, ¶ 9.
During the State's case-in-chief, the district court accordingly allowed the ex-wife to testify
beyond the limited ruling in limine regarding an incident, of which the victim was not
aware, wherein the defendant "choked [the ex-wife] when she had tried to assert herself
against him." Guill, ¶¶ 10 and 38. In affirming on appeal, we held that, by challenging the
ex-wife's "credibility or bias" in his opening statement, the defendant "opened the door
to," i.e., rnade relevant, the previously excluded choking incident to "correct" or rebut the
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"impression that [she] was an aggressive, calculating wornan, intent on acquiring [his]
wealth." Guill, ¶ 40.
¶23 In State v. Clemans, 2018 MT 187, 392 Mont. 214, 422 P.3d 1210, the wife of a
defendant charged with sexually assaulting his 16-year-old stepdaughter testified on direct
examination that, based on the defendant's prior acts of violence toward family members,
the victim-daughter feared hirn and pleaded with the wife to not confront hirn regarding
the alleged sexual assault. Clemans, ¶¶ 7 and 12. On cross-examination, defense counsel
challenged the wife's staternent that the daughter feared the defendant, and thus the truth
of her testimony and the daughter's central allegation, by asking why they returned and
stayed in the horne ifthe daughter was so afraid of hirn. Clemans, ¶¶ 12 and 15. The wife
reaffirmed her earlier testimony regarding the daughter's fear, but cryptically stated it was
necessary for "our safety" to return home and ensure that "everything" appeared to "still
[be] normal" "so we could leave [when] it was safe for us to leave." Clemans, ¶ 12. On
redirect, the court then allowed the State, over objection and subject to limiting instruction,
to elicit additional testirnony from the wife that the defendant had also earlier assaulted her
son, who then left the home, and that she and her daughter returned home after revelation
of the alleged assault in order "to put a plan together to leave safely." Clemans, ¶¶ 13-14.
In affirming on appeal, we reasoned that by suggesting on cross-examination of the wife
that her daughter was in fact not afraid of the defendant, and that the wife thus believed it
was safe for thern to return horne, the defendant was atternpting "to cast doubt on the
veracity of[the daughter's] allegation" that he sexually assaulted her. Clemans, ¶ 15. We
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held that the defendant thereby "opened the door" to the otherwise inadmissible other acts
evidence to explain the circumstances and correct the false impression that he was trying
to create as to why the wife did not immediately protect her daughter by keeping her out
of the home. Clemans, ¶ 15.
(F) Relevance ofNorth Dakota Allegationsfor Non-Propensity Purposes.
¶24 Here, on cross-examination, defense counsel attempted to undermine the credibility
of the girls' Mother, the initial complaining witness, by questioning her about the tension
and acrimony between her and the defendant regarding their breakup, and further
suggesting that she had since attempted to "inhibit the ability of the [d]efendant's family
to see the girls." During the defense case-in-chief, McGhee attempted to further irnpugn
the Mother by testifying that her infidelity was the primary reason for their breakup and
that she had since been unwilling to communicate with him regarding their children. The
rnanifest purpose of McGhee's cross-examination of the Mother, and his subsequent
testimony further impugning her, was to suggest that she was biased and had a motive to
fabricate the charged allegation and thus testify falsely against him.
¶25 In support ofhis denial ofthe alleged indecent exposure, McGhee also testified, and
elicited sirnilar testirnony from his girlfriend and brothers, that he had always had a good
relationship with his daughters prior to the charged allegation by the Mother in 2018. In
addition to testifying to his "awesome" relationship with his daughters, he further testified
that, prior to the charged allegation, they had always wanted to live with him, and that he
had no reason to believe that they did not want to be around him. The obvious purpose of
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McGhee's testirnony, and the consistent testimony of his brothers and girlfriend, regarding
his great relationship with his daughters was to create the impression that he had always
been a loving and caring father, to which the subject allegation of indecent exposure was
wholly inconsistent, thus supporting a jury inference that he was not guilty of the charged
offenses. The cornbined purpose of the intended good character/not guilty inference and
related attack on Mother's credibility was to further provide an alternative explanation for
the charged allegation, i.e., that Mother fabricated the allegation and then orchestrated the
girls' subsequent affirmation in furtherance of her bias and motive to fabricate and testify
falsely against him.
¶26 Under these circumstances, cross-examination of McGhee regarding the prior
allegations that he did "something inappropriate with [his] daughters," and had "been
accused of this kind of behavior before," was directly relevant under M. R. Evid. 401-02,
404(a)(1), 607(a), and the other purposes exception to Rule 404(b) as non-propensity
irnpeachment evidence contradicting his good character testimony and his related assertion
that he had no prior reason to believe that his daughters did not want to be around him. As
recognized in Passmore,the limited cross-exarnination regarding the prior allegations was
not only relevant to directly contradict McGhee's assertions regarding his relationship with
his daughters and that he had no reason to believe they did not want to be around him, but
also to then similarly undermine the credibility of the balance of his testimony, including
his denial of the allegation. See Passmore, ¶ 59 (discussing two-pronged effect of
impeachrnent by contradiction). Moreover, as in Guill, it was further relevant under M. R.
22
Evid. 401-02 and the other purposes exception to Rule 404(b) for the related
non-propensity purpose of rebutting his implied assertion of the Mother's bias and motive
to fabricate and testify falsely and, as in Clernans, to correct his intended false impression
regarding her negative view of him and rnotivation in fabricating and reporting the subject
allegation.
(G) Rule 403 Limiting Factors.
¶27 McGhee further asserts that, "[e]ven if the [other acts] evidence were properly
deemed admissible, [the] prejudicial effect substantially outweighed any probative value
and was thus inadmissible under Rule 403." Otherwise relevant evidence is nonetheless
subject to exclusion "if its probative value is substantially outweighed by," inter alia, "the
danger of unfair prejudice." M.R. Evid. 403. Here, aside from his failure to clearly assert
a similar objection below, McGhee's assertion of unfair prejudice is problematic because
he at the same time acknowledges that "[t]here was no discussion of the actual merits of
the North Dakota allegations" and that "the State raised the issue" to correct or rebut his
assertion "as to why[he and the girls' Mother] have never gotten along." He further asserts,
"[m]ore importantly," that the North Dakota allegations "could not have been probative of
anythine because the State had "admittedly not even seen most of the evidence in [that]
case."
¶28 However, in pertinent part, the limited cross-examination went no farther than
asking McGhee if he had previously been accused of"doing something inappropriate with
[his] daughters" involving "this kind of behavior," and whether that might explain
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Mother's animosity toward him, rather than his assertion of her alleged bias and motive to
fabricate and testify falsely against him. As previously noted, the limited
cross-examination allowed had significant non-propensity relevance for impeachment and
rebuttal purposes. Aside from more clearly revealing his assertion of fabrication and
orchestration by Mother, and his related assertion that his daughters were thus lying, the
related questioning on cross-exarnination and redirect further disclosed only an undetailed
law enforcement investigation that resulted in no charges, a related civil protective order
pending the investigation, and ultimate restoration of McGhee's parenting rights under the
prior parenting plan. The cross-examination did not reference or require disclosure of the
much-more graphic and alarming particulars of the prior allegations of sexual misconduct
toward his daughters. Under these circumstances, the fact that the State rnay not have had
detailed knowledge ofthe particulars ofthe North Dakota investigation had no diminishing
effect on the probative value ofthe limited subject rnatter ofthe cross-exarnination for the
impeachment and rebuttal purposes to which it pertained. We accordingly find no basis
upon which the District Court should or could have concluded that the risk of unfair
prejudice substantially outweighed the probative value of the limited cross-examination
regarding the North Dakota allegations.
(H) Alleged Unwarranted Reversal ofExclusionary Ruling In Limine.
¶29 McGhee further asserts that the mid-trial allowance of cross-examination regarding
the prior North Dakota allegations violated or constituted an erroneous reversal of the
court's pretrial exclusionary ruling in limine. However, as a threshold matter, the ruling in
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limine was responsive, and thus limited in scope, to precluding the State from presenting
or referencing the prior allegations for the asserted Rule 404(b) purpose of proving that he
committed the charged offense in accordance with a "common plan, motive, or intent."
The ruling in limine thus had no bearing on whether the development ofthe actual evidence
at trial might later cause the prior North Dakota allegations to become relevant and
admissible for some other purpose distinct frorn the purpose originally proposed by the
State and rejected by the court.
¶30 Complicating the situation, we recognize that the Rule 404(b) non-propensity
limiting instruction included in the pre-deliberation jury instruction set nonetheless
erroneously instructed the jury that the only permissible purpose for admission and
consideration of the other acts evidence discussed during the trial was as proof that
McGhee committed the charged offense in accordance with a common plan, motive, or
scheme. However, McGhee did not contemporaneously object to the adequacy of the
limiting instruction below, nor has he raised that issue on appeal under any exception to
the contemporaneous objection/waiver rule. The narrow focus of McGhee's objection
below was on the threshold relevance ofthe other acts evidence under M.R. Evid. 401-02
and 404(b). He further acknowledges on appeal that the "State raised the issue not to prove
motive, intent, or any ofthe admissible exception[s] to 404(b), but instead [to] muddy the
waters as to why [he and the girls' Mother] have never gotten along."
¶31 We generally will not hold a district court in error on a subsequent assertion in
regard to which the aggrieved party acquiesced by failing to object, thus precluding the
25
opportunity for direct consideration and correction. State v. Daniels, 2011 MT 278, ¶ 36,
362 Mont. 426, 265 P.3d 623 (quoting State v. English, 2006 MT 177, ¶ 71, 333 Mont. 23,
140 P.3d 454); State v. Clausell, 2001 MT 62, ¶ 25, 305 Mont. 1, 22 P.3d 1111. Having
found the lirnited cross-examination regarding the prior allegations relevant for
non-propensity impeachment and rebuttal purposes, and no merit to McGhee's assertion of
Rule 403 prejudice, we have no basis upon which to conclude that any resulting prejudice
frorn the partially erroneous Rule 404(b) limiting instruction substantially outweighed the
significant probative value of the limited cross-exarnination allowed. See similarly, State
v. Howell, 254 Mont. 438, 445, 839 P.2d 87, 91 (1992)(erroneous inclusion of extraneous
staternent of purpose in Rule 404(b) limiting instruction insufficient to result in substantial
prejudice precluding admission of otherwise relevant other acts evidence).
¶32 While the District Court did not sequentially step through the foregoing analysis due
to the limited rnanner in which the parties raised and addressed the issue, we have long
adhered to the principle that we have discretion on appellate review to independently
exarnine the record and affirm a lower court judgment that reached the correct result, even
if for a wrong or incomplete reason. See, e.g., State v. Marcial, 2013 MT 242, ¶ 10, 371
Mont. 348, 308 P.3d 69; State v. Ellison, 2012 MT 50, ¶ 8, 364 Mont. 276, 272 P.3d 646;
State v. Hendershot, 2009 MT 292, ¶ 33, 352 Mont. 271, 216 P.3d 754. Under the totality
of the circurnstances of this case, we hold that the District Court did not erroneously
conclude that McGhee "opened the door" to the limited cross-examination allowed
regarding the otherwise inadmissible North Dakota allegations.
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¶33 2. Whether the District Court erroneously imposed an unduly harsh sentence?
¶34 Criminal sentences eligible for statutory sentence review are subject to review on
direct appeal only for legality. Herd,¶ 22; State v. Hinshaw, 2018 MT 49,¶ 7, 390 Mont.
372, 414 P.3d 271 (internal citations omitted). A sentence is eligible for sentence review
if it includes an unsuspended prison term or Department of Corrections commitment of"1
year or more." See § 46-18-903(1), MCA;Herd, VII 19-23. Sentence review is generally
the exclusive rernedy for relief from eligible sentences challenged on the basis of
"equitability," i.e., undue harshness, based on the length of the sentence or its
"proportionality to the crime." Jordan v. State, 2008 MT 334, ¶ 18, 346 Mont. 193, 194
P.3d 657 (citing State v. Kern, 2003 MT 77, ¶ 54, 315 Mont. 22, 67 P.3d 272). Accord
Bull, ¶¶ 11 and 13.
¶35 Here, McGhee does not allege that he received an illegal sentence. Without citation
or analysis regarding the appropriate remedy for relief, he merely asserts that his sentence
is "unduly harsh." The State correctly asserts that his sentence is eligible for sentence
review, and thus not subject to review on direct appeal. McGhee filed no reply disputing
the State's assertion. We agree with the State and summarily hold that McGhee's sentence
is subject to sentence review, and thus not subject to review on direct appeal.6
6The record indicates that McGhee applied for sentence review in September 2019. Due to the
pendency of this appeal, the Sentence Review Division responded that the application was
premature and thus instructed him to tiniely refile within 60 days offinal judgment on appeal.
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CONCLUSION
¶36 Under the circumstances of this case, we hold that the District Court did not
erroneously conclude that McGhee "opened the door" to the lirnited cross-examination
allowed regarding the otherwise inadmissible North Dakota allegations. We hold further
that, based on his eligibility for statutory sentence review, McGhee's assertion that his
sentence is "unduly harsh" is not subject to review on direct appeal. Affirmed.
/14 roltiL
Justice
We concur:
Chief Justice
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