                                                                                               09/20/2016


                                          DA 14-0756
                                                                                           Case Number: DA 14-0756

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2016 MT 235N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

KURTIS LEE KILLSONTOP,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DC-14-43
                       Honorable Robert L. Deschamps, III, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Paul D. Sullivan, Measure, Sampsel, Sullivan & O’Brien, P.C.,
                       Kalispell, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                       Assistant Attorney General, Helena, Montana

                       Kirsten H. Pabst, Missoula County Attorney, Missoula, Montana



                                                   Submitted on Briefs: August 24, 2016

                                                               Decided: September 20, 2016


Filed:

                       __________________________________________
                                         Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Kurtis Killsontop appeals from his March 2014 conviction and sentence on two

counts of assault with a weapon. Killsontop contends that the District Court erred in

admitting testimony of one victim’s prior consistent statement. We affirm.1

¶3     In December 2013 police officers in Missoula responded to a report of a stabbing

at a residence.    The officers found several highly intoxicated persons, including

Killsontop and Regina Matt, who had been stabbed. Matt, Killsontop and others who had

been at the residence gave varying accounts of what happened and whether Killsontop

stabbed the victims.

¶4     At trial Matt testified that Killsontop stabbed her and she acknowledged that as

officers escorted her out of the residence she repeatedly yelled that Killsontop had

stabbed her. She testified that she did not actually see Killsontop stab her, but that

someone at the hospital told her that it happened. Matt admitted that she later told

officers that some “Native dudes” stabbed her, but that another person who had been at



       1
          The issues on appeal relate only to the assault on victim Matt. Killsontop does not
attack his conviction for assaulting victim Swanson.

                                             2
the residence coached her to say that. Killsontop gave varying accounts about what

happened and ultimately claimed that both stabbings were accidents.

¶5     Detective Lang interviewed victim Matt shortly after the incident and again just

prior to the trial. Lang testified, over defense objection, that Matt told him in the second

interview that Killsontop stabbed her. Lang also testified that Matt told him that any

different account she gave resulted from being coached by another person who had been

present at the residence.

¶6     On appeal Killsontop contends, and the State agrees, that Detective Lang’s

account of what Matt told him was not admissible under M. R. Evid. 801(d)(1)(B) as a

prior consistent statement because the defense did not impeach Matt with allegations of

subsequent fabrication, improper influence or motive. In addition, both sides agree that

this was trial error, not structural error. The State, however, argues that the error was

harmless and does not support reversal of the conviction.

¶7     A conviction may not be reversed unless the record shows that the error was

prejudicial to the defendant.     Section 46-20-701(1), MCA.        A trial error may be

non-prejudicial if there was other evidence admitted to prove the same facts as the tainted

evidence, and if the quality of the tainted evidence was such that there was no reasonable

possibility that it contributed to the conviction. State v. Van Kirk, 2001 MT 184, ¶ 44,

306 Mont. 215, 32 P.3d 735. Here there was evidence, other than Lang’s testimony about

what Matt said to him, to prove that Killsontop stabbed Matt. Matt testified on direct that

there was “no doubt” that Killsontop stabbed her. Witness Gillis testified that Killsontop

stabbed Matt in the back and that Matt ran out of the residence screaming that she had

                                             3
been stabbed. When police arrived Matt lunged at Killsontop and screamed that he had

stabbed her. And Killsontop testified that he stabbed both victims, but by mistake.

Detective Lang’s testimony that Matt said the same thing to him was not significant

qualitatively. There was not a reasonable possibility that it contributed to the conviction.

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, this case presents a question controlled by settled law or by the clear

application of applicable standards of review.

¶9     Affirmed.


                                                  /S/ MIKE McGRATH



We Concur:

/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE




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