                                                                                                03/14/2017


                                           DA 14-0750
                                                                                            Case Number: DA 14-0750

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2017 MT 61



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JOSEPH D. FORSYTHE,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 14-123
                        Honorable Russell C. Fagg, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Jennifer Hurley, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar,
                        Assistant Attorney General, Helena, Montana

                        Scott D. Twito, Yellowstone County Attorney, Benjamin Halvorsen,
                        Deputy County Attorney, Billings, Montana



                                                     Submitted on Briefs: December 7, 2016

                                                                Decided: March 14, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.


¶1     In November 2013, Joseph Forsythe and his wife, Giana, had a violent physical

altercation after which Forsythe was charged with Partner/Family Member Assault

(PFMA). While detained and under a “no contact” order, Forsythe sent letters to Giana

directing her to provide false testimony regarding the incident. Giana provided the letters

to the authorities. Thereafter the State charged Forsythe with felony tampering with a

witness. A jury found Forsythe guilty of both tampering and PFMA. Forsythe appeals

his sentence and evidentiary rulings issued by the Thirteenth Judicial District Court,

Yellowstone County, during and following his trial. We affirm.

                                         ISSUES

¶2     We restate the issues on appeal as follows:

¶3     Did the District Court err in holding that the letters Forsythe sent to Giana were

protected by spousal privilege?

¶4     Did the District Court abuse its discretion by allowing a lay witness to testify

regarding handwriting samples?

¶5     Did the District Court impose an illegal sentence by ordering Forsythe to pay a

$20 information technology surcharge?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶6     In November 2013, Joseph Forsythe was charged in the Billings Municipal Court

with misdemeanor Partner/Family Member Assault—Second Offense following a violent

physical altercation with his wife, Giana, during which she was seriously injured. While


                                            2
confined at the Yellowstone County Detention Facility (YCDF) and under a “no contact”

order, Forsythe and Giana wrote letters to one another. Giana received, at a minimum,

five letters from Forsythe dated between November 15, 2013, and January 24, 2014. One

of these letters unequivocally instructed her to tell the authorities that her injuries were

the result of her falling and hitting herself on a cabinet. He further directed her to refuse

to testify against him and to claim she had a mental illness that would preclude her from

testifying.

¶7     Giana gave the letters to the Billings City Attorney’s Office. The City Attorney

moved to dismiss the Billings Municipal Court case without prejudice and, in February

2014, Forsythe was charged with one count of felony tampering with a witness1 and one

count of misdemeanor PFMA in the Thirteenth Judicial District Court. In May 2014, the

State filed notice of its intent to designate Forsythe a persistent felony offender (PFO) on

the grounds that less than five years had elapsed between Forsythe’s 2014 felony

tampering charge and his 2011 release from parole on a charge of felony residential

burglary.

¶8     In June 2014, Forsythe filed a motion in limine seeking to prevent the letters he

sent to Giana from being admitted into evidence in his tampering case. He argued that

the letters constituted confidential communication between spouses and were protected

       1
         Section 45-7-206, MCA, defines tampering with a witness and provides in part:
               (1) A person commits the offense of tampering with witnesses and
       informants if, believing that an official proceeding or investigation is pending or
       about to be instituted, the person purposely or knowingly attempts to induce or
       otherwise cause a witness or informant to:
               (a) testify or inform falsely; [or]
               (b) withhold any testimony, information, document, or thing. . . .

                                               3
by spousal privilege under § 26-1-802, MCA. The State countered that the letters to

Giana were not within the scope of spousal privilege because the letters were intended to

intimidate and harass Giana into silence.

¶9     The court conducted a motion hearing on July 30, 2014, at which law enforcement

officer Brad Tucker, who was noticed as a witness on June 23, testified as to his

handwriting analysis background and experience and that he had testified at previous

unrelated trials as an expert in this field. He also compared letters received by the

presiding judge from Forsythe with the letters Giana received and concluded they were

all written by the same person. Forsythe objected to Tucker’s testimony on foundation

grounds and the State’s failure to notice Tucker as an expert. The court overruled the

objections, noting that Forsythe’s handwriting was extremely distinctive and could be

effectively compared by the judge, juror, or a lay witness. The court admitted the letters

into the record. Following the hearing, the District Court issued its ruling from the bench

preliminarily granting Forsythe’s motion in limine. The court’s subsequent written order

informed the State that it would have to rely on “other evidence, other than the testimony

of [Giana], to establish the elements of [witness tampering].”

¶10    During the pre-trial conference for Forsythe’s August 11, 2014 jury trial, the

District Court ruled that Giana could testify that she received letters from Forsythe but

she could not testify as to the contents of those letters because to do so would violate

spousal privilege as it applied to the witness tampering charge. Following Giana’s trial

testimony, the jury heard the same handwriting analysis testimony from Tucker as the

District Court had heard at the July 30 hearing. The testimony was intended to establish

                                             4
that Forsythe had written the letters to Giana in violation of § 45-7-206, MCA, i.e., the

tampering statute. The State, however, did not offer him as an expert in this case;

consequently, he offered opinion testimony as a lay witness.        Forsythe objected to

Tucker’s authentication testimony arguing that because the State had not noticed Tucker

as an expert Tucker’s lay witness testimony did not satisfy M. R. Evid. 901(b)(2) (Rule

901). Following Tucker’s testimony, the court permitted the State to introduce the letters

into evidence in the tampering case. At the time of the admissibility ruling, Forsythe

objected solely on the grounds of spousal privilege. The jury found Forsythe guilty of

both witness tampering and PFMA.

¶11   In January 2015, the District Court issued its Judgment, committing Forsythe to

the Montana State Prison for fifteen years with five years suspended for the tampering

charge and sentencing him to YCDF for one year for the PFMA. The PFMA sentence

was ordered to run concurrently with the tampering sentence. Forsythe received credit

for the time served in pre-trial incarceration and was designated a PFO. He was subject

to numerous terms and conditions, including completing an anger management program

and other behavioral modification programs.

¶12   Forsythe filed a timely appeal.

                              STANDARD OF REVIEW

¶13   This court reviews a district court’s evidentiary decisions for an abuse of

discretion. State v. Pingree, 2015 MT 187, ¶ 9, 379 Mont. 521, 352 P.3d 1086. The

determination of whether evidence is relevant and admissible is within the sound



                                            5
discretion of the trial judge and will not be overturned absent a showing of abuse of

discretion. State v. Levanger, 2015 MT 83, ¶ 7, 378 Mont. 397, 344 P.3d 984.

                                    DISCUSSION

¶14   Did the District Court err in holding that the letters Forsythe sent to Giana were
      protected by spousal privilege?

¶15   Forsythe claims his letters are confidential marital communication and thus

protected by the spousal privilege doctrine. The doctrine of spousal privilege originated

in English common law and was first recognized by the United States Supreme Court in

Stein v. Bowman, 38 U.S. 209, 10 L.Ed. 129 (1839). Most states subsequently codified

the privilege and Montana enacted its first spousal privilege law in 1867.       State v.

Nettleton, 233 Mont. 308, 313, 760 P.2d 733, 736 (1988). The central principle behind

the privilege is “to protect the sanctity of the marriage and home.” In re Marriage of

Sarsfield, 206 Mont. 397, 406, 671 P.2d 595, 600 (1983) (citations omitted). However,

we also noted in Sarsfield that the privilege is subject to the maxim that “[w]hen the

reason of a rule ceases, so should the rule itself.” Section 1-3-201, MCA; Sarsfield, 206

Mont. at 406, 671 P.2d at 600.

¶16   While the principle behind the privilege remains, the law codifying it has evolved

considerably since 1867 and the privilege is not as far-sweeping as it once was.

Exceptions have arisen, one of which provides that threatening communications—

whether oral or written—are not privileged or protected and should not be excluded from

evidence based upon the spousal privilege. Nettleton, 233 Mont. at 317, 760 P.2d at 739;

State v. Edwards, 2011 MT 210, ¶ 19, 361 Mont. 478, 260 P.3d 396.


                                           6
¶17    The applicable spousal privilege statute, § 26-1-802, MCA, provides:

               Neither spouse may, without the consent of the other, testify during
       or after the marriage concerning any communication made by one to the
       other during their marriage. The privilege is restricted to communications
       made during the existence of the marriage relationship and does not extend
       to communications made prior to the marriage or to communications made
       after the marriage is dissolved. The privilege does not apply to a civil action
       or proceeding by one spouse against the other or to a criminal action or
       proceeding for a crime committed by one spouse against the other or
       against a child of either spouse.

¶18    Forsythe asserts that the District Court was correct when it issued its preliminary

ruling granting his motion in limine and finding that the letters Giana received while

Forsythe was detained at the YCDF were “privileged spousal communications.” He

continues, however, that the court “erred . . . in how it subsequently applied the privilege

statute to testimony and evidence on the tampering charge.”

¶19    Forsythe contends that the court incorrectly ruled that the letters were not covered

by the spousal privilege because they were written communications rather than oral

testimony. In other words, the District Court correctly concluded that Giana could not

orally testify about the spousal communications but it erred when it admitted the letters

through a third-party lay witness “merely because they took a written form.” Forsythe

further asserts that admitting the testimony of a lay witness unfamiliar with his

handwriting to authenticate the letters violated Rule 901.

¶20    Lastly, Forsythe maintains that the letters contained no threats to Giana and the

State produced no evidence that Giana felt fearful or threatened. Rather, and relying on

Nettleton, he claims that the letters were communications (1) “‘intended to convey a

message from one spouse to the other,’ and (2) the message was ‘intended by the

                                             7
communicating spouse to be confidential in that it was conveyed in reliance on the

confidence of the marital relationship.’” Nettleton, 233 Mont. at 317, 760 P.2d at 739.

As such, they were privileged spousal communications.

¶21      The State acknowledges that the District Court’s reasoning for admitting the

letters was erroneous and that written spousal communications are protected by the

privilege. However, the State, also relying on Nettleton, maintains that the court did not

err in admitting these letters because the content of the communications was intimidating

and intended to influence Giana’s participation in the case, and therefore were not

protected spousal communications. Nettleton, 233 Mont. at 317, 760 P.2d at 739.

¶22      Additionally, the State asserts that the statutory language in § 26-1-802, MCA—

“[t]he privilege does not apply to . . . a criminal action or proceeding for a crime

committed by one spouse against the other”—should apply to the charge of tampering

with a witness when the witness is the spouse. It acknowledges that while tampering

with a witness typically is an offense against the public administration, it is also an

offense committed against Giana in this case. As such the statute supports a finding that

the letters are not protected by the privilege.

¶23      Unfortunately, the District Court, in its order granting Forsythe’s motion in limine,

did not provide a detailed legal rationale for its decision. To the extent, as argued by the

parties, that the court drew a distinction between written and oral communications and

concluded that written communications are not protected by spousal privilege, this was

error.



                                                  8
¶24    Having determined that the written letters were subject to protection under the

privilege, we next turn to whether the letters contained intimidating and threatening

language, and therefore were not communicated “in reliance on the confidence of the

marital relationship.” Edwards, ¶ 19. We acknowledge that many of the letters contain

terms of endearment and repeated professions of love and that we observed no overt or

direct threats of violence.     However, we conclude that, based upon the underlying

relationship of the persons involved, direct and overt threats of violence are not always

necessary to instill fear, intimidation, or a sense of physical vulnerability.         As an

example, Forsythe wrote in his letter dated January 24, 2014, the last letter Giana turned

over to the prosecuting attorney:

       You need to seriously get a hold of yourself, like as of this letter and stop
       listening to that punk-ass D.A. He is our enemy . . . he gets paid to fuck
       peoples lifes [sic] up. He is playing you for a fuckin dummy, he wants you
       to turn against me . . . and it sounds like it’s working. I’ve got this case
       beat and they know it, and now the fucks are trying anything including
       using you. The only way that I can lose is if you testify against me so get a
       fucking hold of yourself . . . now! You give up so fuckin easy. . . . You
       need to be patient. This is not fuckin Burger King, you need to calm the
       fuck down before you fuck me for good. . . . Now, I’m coming home soon
       so do as I ask, and I mean it.

¶25    Forsythe concluded the letter by telling Giana he loved her “dumb ass - so be

good.” We note that Forsythe adopted an angrier and more threatening prose in this letter

than in his previous letters.

¶26    In addition to an intimidating posture in Forsythe’s last letter, a few of the letters

attempted to suborn perjury by instructing Giana to lie to the authorities about their

communications and the manner in which she was injured. For example, Forsythe made


                                             9
the following statement in one of his letters: “Just try to talk to my public defender, I’m

saying that we fell down together. And she hit herself on the cabinet, thats [sic] how she

got her marks.”

¶27   It is apparent from these letters that Forsythe’s goal, through his written

instructions to his wife, was to intimidate her into withdrawing her allegations against

him. Forsythe’s letters are a written embodiment of the psychological manipulation and

control that inheres in an abusive relationship—escalating to a threat that he is “coming

home soon” where he will have physical access to his wife again. She knows what is

coming if that happens. In the context of such a relationship, these communications

plainly are a threat and are damaging to, rather than preserving of, the sanctity of the

marriage.

¶28   First, we note it is not inherently wrong or unlawful for one spouse to encourage

the other spouse to exercise his or her spousal privilege. The wrongdoing occurs when

one spouse encourages or persuades the other spouse to exercise the privilege for

wrongful purposes such as suborning perjury or through wrongful means such as

coercion and intimidation. United States v. Doss, 630 F.3d 1181, 1190 (9th Cir. 2011).

¶29   In reaching our conclusion in this case, we are guided, in part, by an observation

of the Washington Court of Appeals in State v. Sanders, 833 P.2d 452, 455 (1992). The

Washington Court was deciding a witness tampering/spousal privilege case in the context

of sexual child abuse. The court noted, “There is a direct, elemental nexus between the

act of tampering and the underlying crime.” The underlying crime in this case was

Forsythe’s brutal beating of his wife Giana while he was drunk and she was recovering

                                            10
from spinal surgery. The PFMA precipitated the tampering offense. In other words,

without the PFMA there would be no tampering charge.             And while Giana’s trial

testimony indicated she still loved her husband, she also stated that the beating

“destroyed everything I believed in[:] marriage, love, partnership, trust. I lost hope.”

When asked if she still had hope for her marriage, she replied, “I can’t answer that.”

¶30    While Giana testified about the PFMA, she was barred from testifying about the

letters and their content based upon spousal privilege. But, as we determined above,

these letters are not privileged. For this reason, Giana should have been allowed to

testify about them and the State should have been allowed to admit them as unprivileged

communications through Giana. The District Court erred in its interpretation of the

privilege and the manner in which it applied it to testimony and evidence.

¶31    We conclude, however, that the District Court did not abuse its broad discretion by

admitting the letters into evidence as they were not privileged. Moreover, the court had

the content of the letters, awareness of the vicious nature of the underlying crime, Giana’s

presence and demeanor on the witness stand and her testimony against Forsythe in the

PFMA case, as well as knowledge that Giana had turned over the letters to the

prosecuting attorney of her own accord. While the court failed to provide its rationale for

admitting the letters, our review of the evidence supports the conclusion that the content

of the letters, especially the final letter, was threatening and/or intimidating to a woman

who was the victim of such a cruel beating and did not constitute protected marital

communication.



                                            11
¶32    We return to the central principle of the privilege—the protection of the marital

relationship. As the United States Supreme Court observed:

       When one spouse is willing to testify against the other in a criminal
       proceeding—whatever the motivation—their relationship is almost
       certainly in disrepair; there is probably little in the way of marital harmony
       for the privilege to preserve.

Trammel v. U.S., 445 U.S. 40, 52, 100 S. Ct. 906, 913 (1980).

¶33    Having concluded that Forsythe’s letters to Giana were not protected by spousal

privilege based upon their threatening and intimidating contents and our analysis in

Nettleton, we also conclude that our ruling is supported by the express language of the

spousal privilege statute. Section 26-1-802, MCA, quoted in full in ¶ 17 above, provides

that the “privilege does not apply . . . to a criminal action or proceeding for a crime

committed by one spouse against the other . . . .”

¶34    Here, no one disputes that spousal privilege does not apply to the Partner/Family

Member Assault charge. The tampering charge, however, clearly arises out of the partner

and family member charge and was committed by Forsythe with the specific purpose of

frustrating the effective prosecution of the PFMA charge. Indeed, evidence of the letters

strongly shows a consciousness of guilt by Forsythe because the letters reveal that he

repeatedly sought to prevent Giana from truthfully testifying against him on the assault

charge.

¶35    Consequently, and based upon the language of the statute, the case before us is one

criminal proceeding with two charges arising from the same series of events:

commission of the PFMA against Giana and Forsythe’s attempt to alter the evidence for


                                            12
this particular charge. For this reason as well as those set forth above, Forsythe’s letters

to Giana were not covered by the privilege because the tampering and PFMA arose from

the same set of facts and constitute a “criminal action or proceeding for a crime

committed by one spouse against the other . . . .”

¶36    Did the District Court abuse its discretion by allowing a lay witness to testify
       regarding handwriting samples?

¶37    Forsythe alternatively asserts that the District Court erroneously admitted the

subject correspondence based on foundational authentication testimony of Tucker in

violation of Rule 901(b)(2) (permissible handwriting authentication through lay

testimony based on non-litigation-related familiarity) and State v. Dewitz, 2009 MT 202,

¶¶ 42-43, 351 Mont. 182, 212 P.3d 1040 (admission of police officer’s non-expert

handwriting comparison testimony under Rule 901(b)(2) erroneous absent prior

non-case-related familiarity). We agree.

¶38    Tucker’s testimony regarding his handwriting comparison expertise and his

resulting opinion testimony unquestionably constituted expert testimony beyond the

scope of permissible lay opinion testimony. The State concedes that it failed to timely

identify Tucker as an expert witness on its court-ordered pretrial witness list and thus

purported to present his testimony as merely lay opinion testimony. As in Dewitz, Tucker

had no prior non-case-related familiarity with Forsythe’s handwriting. Therefore, the

District Court abused its discretion in admitting the subject correspondence based on the

foundational authentication testimony of Tucker under Rule 901(b)(2).




                                            13
¶39    In tacit acquiescence, the State asserts that the error was harmless error.         In

determining whether an error was reversible error or non-reversible harmless error, the

first question is whether the error was “structural error” or merely “trial error.” State v.

Van Kirk, 2001 MT 184, ¶ 37, 306 Mont. 215, 32 P.3d 735.

¶40    “Structural error” is error that affects the framework of the trial process “rather

than simply an error in the trial process itself.”        Van Kirk, ¶ 38 (citing Ariz. v.

Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265 (1991)). Whether occurring

pretrial or at trial, structural error “is typically of constitutional dimensions” or of such

magnitude to fundamentally undermine “the fairness of the entire trial proceeding.” See

Van Kirk, ¶ 38 (narrowly characterizing structural error as typically a pretrial

phenomenon) (emphasis added). By nature, structural error is not amenable to measure

by any particular qualitative or quantitative means. Van Kirk, ¶ 38.          Presumptively

prejudicial, structural error is irrebuttable reversible error not subject to harmless error

review under § 46-20-701(1), MCA. Van Kirk, ¶¶ 38-39; State v. LaMere, 2000 MT 45,

¶¶ 39-50, 298 Mont. 358, 2 P.3d 204.

¶41    In contrast, “trial error” is “error that typically occurs during the presentation of a

case to the jury,” i.e., the presentation of evidence or jury argument. Van Kirk, ¶ 40. By

nature, trial error is amenable to comparative qualitative assessment of the “prejudicial

impact” of the tainted evidence relative to the other trial evidence. Van Kirk, ¶ 40. Not

presumptively prejudicial, trial error is subject to harmless error review under

§ 46-20-701(1), MCA. Van Kirk, ¶ 40.



                                             14
¶42    Upon a determination of a non-structural trial error, the burden shifts to the State

to show on the trial record that “no reasonable possibility” exists that the inadmissible

evidence “contributed to the conviction.” Van Kirk, ¶ 47. The State can satisfy this

standard by pointing out other admitted “evidence that proved the same facts as the

tainted evidence” and showing by qualitative comparison that it could not reasonably

have contributed to the conviction. Van Kirk, ¶ 47.

¶43    If the tainted evidence was the only evidence tending to prove an element of the

charged offense, no basis for qualitative assessment exists and the non-structural error is

reversible error. Van Kirk, ¶ 47. If the tainted evidence is the only evidence tending to

prove a fact other than an element of the charged offense, then the error is harmless if the

State can show by qualitative comparison to the other trial evidence that the tainted

evidence could not reasonably have contributed to the conviction. Van Kirk, ¶ 47.

¶44    In this case, the tainted evidence was Tucker’s handwriting identification

testimony offered pursuant to Rule 901(a) to prove the foundational authenticity of the

subject correspondence rather than as proof of an element of the charged offense. This

evidence was not of constitutional dimension or such significance to fundamentally

undermine “the fairness of the entire trial proceeding” in a manner not amenable to

comparative qualitative assessment of prejudice.       Rather, this evidence was merely

foundational evidence readily amenable to comparative qualitative assessment of

prejudice.   Therefore, we conclude that the erroneous admission of Tucker’s expert

handwriting identification testimony was merely non-structural trial error subject to

harmless error review.

                                            15
¶45    In that regard, other compelling evidence authenticated the subject correspondence

as Forsythe’s writing independent of Tucker’s testimony. First, as a non-exclusive means

of proof of authenticity under Rule 901(a), “a witness with knowledge” may testify “that

a matter is what it is claimed to be.” Rule 901(b)(1). Thus, unless beyond the realm of

lay knowledge, a witness may give non-expert opinion testimony “as to the genuineness

of handwriting” based on “familiarity not acquired for purposes of the litigation.” Rule

901(b)(2).    Here, Giana testified unequivocally that she received the subject

correspondence from her husband. Forsythe does not dispute that his wife was familiar

with his handwriting or that she did not acquire that familiarity for purposes of litigation.

¶46    Second, as another non-exclusive means of proof of authenticity under Rule

901(a), a lay jury may determine the foundational authenticity of evidence by comparison

“with specimens which have been authenticated.” Rule 901(b)(3). Unless beyond the

realm of lay knowledge, the jury may make this foundational determination by

recognition and comparison of “[d]istinctive characteristics and the like,” including, inter

alia, their “[a]ppearance, contents, substance, internal patterns or other distinctive

characteristics, taken in conjunction with [the] circumstances” at issue. Rule 901(b)(4)

(emphasis added). Here, without objection, the court admitted three signed, handwritten

letters from Forsythe to the court. Also admitted into evidence and not at issue on appeal

was a “Notice of No Contact” acknowledgement bearing Forsythe’s handwritten

signature.

¶47    Forsythe has made no assertion or showing here or below that accurate

comparative authentication of the subject correspondence was a matter beyond the realm

                                             16
of lay knowledge requiring expert testimony. Thus, Tucker’s handwriting identification

testimony was merely cumulative to other evidence proving the foundational authenticity

of the subject correspondence as written by Forsythe.

¶48    The other cumulative evidence proving the foundational authenticity of the subject

correspondence was qualitatively and quantitatively compelling independent of Tucker’s

testimony. The record manifests that the handwriting styles in the tainted correspondence

and Forsythe’s other untainted handwriting examples were distinctly similar. In its bench

ruling, the District Court found that the handwriting on the subject correspondence was

“so distinct” that “anybody” could identify Forsythe’s handwriting. Though somewhat

altered in some of the letters, the writing styles still remained substantially similar in

most regards. The fact that some of the letters purported by signature to have been

written by somebody other than Forsythe was nonsensical juxtaposed against their

distinctive content contrarily identifying the author as a close acquaintance of Forsythe’s

wife and the subject of a criminal prosecution in which she was the key witness.

¶49    Giana’s undisputed familiarity with her husband’s handwriting, her unequivocal

testimony that she received the subject correspondence from him, the substance of the

correspondence, the corroborating surrounding circumstances, and the lack of any

evidentiary basis upon which to reasonably conclude that somebody other than Forsythe

authored the subject correspondence were independently compelling evidence of the

foundational authenticity of the letters.     Therefore, we conclude that there is no

reasonable possibility that the admission of Tucker’s late-disclosed expert handwriting

identification testimony significantly contributed to his conviction.

                                             17
¶50    As for the dissent’s concern that Forsythe was not notified of Tucker’s testimony

and could not prepare to defend against, it is unwarranted. Forsythe knew well in

advance of the trial that Tucker would be a witness at the trial. Furthermore, as of the

hearing in July, Forsythe knew exactly what Tucker’s testimony would be.

Consequently, Forsythe was not taken by surprise by Tucker’s handwriting analysis

testimony. While Forsythe again objected at trial that Tucker had not been noticed as an

expert, at the time the letters were submitted to the jury, Forsythe’s only objection was

spousal privilege. Forsythe offered no closing statement or rebuttal witnesses to address

Tucker’s testimony. For these reasons and the reasons presented above, Forsythe cannot

establish that Tucker’s testimony was prejudicial; consequently, the admission of the

letters was harmless error. Therefore, we conclude that the erroneous admission of

Deputy Tucker’s handwriting identification testimony was harmless error.

¶51    Did the District Court impose an illegal sentence by ordering Forsythe to pay a
       $20 information technology surcharge?

¶52    Lastly, the State concedes that the District Court imposed an illegal sentence when

it ordered Forsythe to pay a $20 information technology surcharge when the statute

authorizes a single $10 surcharge per criminal case.2 While we typically remand a

judgment to the district court for modification, we conclude a remand is unnecessary in

this case.    Section 46-20-703(1), MCA, authorizes this Court, as “the reviewing

court . . . to modify the judgment or order from which the appeal is taken.” Relying on

       2
          Section 3-1-317(1)(a), MCA, mandates, with some inapplicable exceptions, that “all
courts of original jurisdiction shall impose on a defendant in criminal cases, a $10 [information
technology] surcharge upon conviction for any conduct made criminal by state statute or upon
forfeiture of bond or bail.”
                                               18
this statute in State v. Fitzpatrick, 247 Mont. 206, 805 P.2d 584 (1991), we modified

Fitzpatrick’s sentence on appeal after concluding the district court erroneously imposed

sentences that exceeded the statutory maximum allowed. As we are merely modifying

Forsythe’s sentence to reduce a $20 surcharge to a $10 surcharge, we do so under the

authority set forth in § 46-20-703(1), MCA.       It is hereby ordered that Forsythe’s

judgment be amended accordingly.

                                    CONCLUSION

¶53   For the foregoing reasons, we affirm the District Court’s evidentiary rulings and

modify Forsythe’s sentence as it pertains to the imposed information technology

surcharge.

                                                /S/ MICHAEL E WHEAT


We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR


Justice Laurie McKinnon, concurring.

¶54   I agree with the Court in all respects, with the exception that I would conclude,

based solely upon the language of § 26-1-802, MCA, the spousal privilege does not apply

and not, as the Court does, upon an extension of Nettleton and a finding that the letters

were intimidating and threatening. The Legislature, by enacting § 26-1-802, MCA,

established the spousal privilege, as well as the exception to that privilege. It is not


                                           19
necessary to extend Nettleton, which abrogated the spousal privilege for reasons not set

forth in § 26-1-802, MCA, as the tampering charge arises out of the PFMA and was

committed by Forsythe with the purpose to frustrate effective prosecution of the PFMA.

In my opinion, the case before us is one criminal prosecution with two charges, and I

would conclude the communications are not protected pursuant to the plain language of

the statutory exception because this is “a criminal action or proceeding for a crime

committed by one spouse against the other . . . .” Section 26-1-802, MCA.

¶55    The Court relies on Nettleton to find that the letters were intimidating and/or

threatening and that the central principle of the privilege—protection of the marital

relationship—was not advanced by excluding the letters. Opinion, ¶¶ 31, 33. Nettleton

involved threats by the husband to his then-wives of death, stalking, physical violence,

and killing the parties’ child. Similarly, in Edwards, ¶ 20, the communications held not

to be privileged were statements by Edwards to his wife, made while pointing a shotgun

at her, that he would kill her and her family and burn down her grandmother’s house.

Our holdings in Nettleton and Edwards did not construe the statutory exception contained

in § 26-1-802, MCA, and were, in actuality, a judicially created exception to the

statutorily created spousal privilege. As such, I am hesitant to extend precedent when it

is not in accord with the clear language of a statute which specifically and directly

addresses the same subject-matter. Further, extending Nettleton requires the trial court to

climb the slippery slope of deciding when a statement is threatening or intimidating and

damaging of the marital relationship, particularly in the absence of testimony from the




                                        20
victim that she was so threatened or intimidated and that the marriage was over.1 I think

the better course, and that set forth in the language of the statute, is that the tampering

charge is clearly part of the same proceeding as the PFMA and arose out of and is

intricately related to the PFMA. On this basis only, I would conclude that the letters are

not protected by the spousal privilege.

¶56    The role of this Court in the construction of a statute “is simply to ascertain and

declare what is in terms or in substance contained therein, not to insert what has been

omitted or to omit what has been asserted.” Section 1-2-101, MCA. This Court has

repeatedly held that we must seek to implement the intention of the Legislature when

interpreting a statute. In re K.M.G., 2010 MT 81, ¶ 26, 356 Mont. 91, 229 P.3d 227

(citing § 1-2-102, MCA; Montana Vending Inc. v. Coca-Cola Bottling Co., 2003 MT

282, ¶ 21, 318 Mont. 1, 78 P.3d 499). We determine the intention of the Legislature first

from the plain meaning of the words used, and if interpretation of the statute can be so

determined, we may not go further and apply any other means of interpretation. State v.

Trull, 2006 MT 119, ¶ 32, 332 Mont. 233, 136 P.3d 551 (citing Dunphy v. Anaconda Co.,

151 Mont. 76, 79-81, 438 P.2d 660, 662 (1968)); see also Tongue River Elec. Coop. v.

Montana Power Co., 195 Mont. 511, 515, 636 P.2d 862, 864 (1981) (citing Haker v.

Southwestern R.R., 176 Mont. 364, 369, 578 P.2d 724, 727 (1978); State ex rel. Huffman

v. District Court, 154 Mont. 201, 204, 461 P.2d 847, 849 (1969)). “In the search for

plain meaning, ‘the language used must be reasonably and logically interpreted, giving


1
 During trial, Giana did not testify she was threatened or intimidated and she was unwilling to
definitively state her marriage to Forsythe was over.


                                          21
words their usual and ordinary meaning.’” Gaub v. Milbank Ins. Co., 220 Mont. 424,

427, 715 P.2d 443, 445 (1986) (quoting In re McCabe, 168 Mont. 334, 339, 544 P.2d

825, 828 (1975)).

¶57      In my opinion, the language of § 26-1-802, MCA, is plain and unambiguous. We

are thus not required to extend the judicially created exception we made in Nettleton and

Edwards, which likely was made pursuant to the compelling circumstances of those

cases.    While I do not disagree that the substance of Forsythe’s communications,

particularly the fifth communication, were designed to threaten and intimidate Giana, the

legislature has struck a balance, through its enactment of § 26-1-802, MCA, between

protection of the marital relationship and when that protection is no longer deserving. It

is not the role of a judge or this Court to expand on that exception, regardless of whether

we agree with the balance struck by the Legislature, and particularly when it is

unnecessary.

¶58      The plain language of the statutory exception itself applies to remove from

protection the communications made by Forsythe because the case before us is one

“criminal action or proceeding” with two charges arising from the same series of events.

I would only apply the statutory exception contained in § 26-1-802, MCA, to conclude

the letters were not protected spousal communications.



                                                 /S/ LAURIE McKINNON




                                        22
Justice Dirk M. Sandefur joins in the concurring Opinion of Justice McKinnon.


                                                    /S/ DIRK M. SANDEFUR


Justice Jim Rice, concurring in part and dissenting in part.

¶59    I agree with the Court’s analysis under the first issue regarding spousal privilege,

but disagree with the conclusion reached under the second issue regarding the expert

testimony that was admitted concerning Forsythe’s letters. It is vital to maintain the

distinction between lay witnesses and expert witnesses1 and to properly analyze the error

when this distinction is lost.

¶60    At trial, the State repeatedly claimed Tucker was simply a lay witness. As the

State acknowledges on appeal, this assertion was incorrect—Tucker indeed offered

expert testimony. As we recently explained, “if testimony crosses from lay to expert

testimony the witness must be recognized as an expert by the court or error occurs.”

State v. Kaarma, 2017 MT 24, ¶ 86, 386 Mont. 243, ___ P.3d ___. Designating a witness

as an expert bears significantly on trial preparation and failure to do so can be prejudicial

to the other side. See Superior Enters. LLC v. Mont. Power Co., 2002 MT 139, ¶¶ 18-20,

310 Mont. 198, 49 P.3d 565. In the criminal context, any error must be analyzed under

the Van Kirk test. State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d 735. While
1
 Chief Justice Gray highlighted this point when she dissented in State v. Henderson, 2005 MT
333, 330 Mont. 34, 125 P.3d 1132, stating, “In my opinion, our cases on the issue of whether
‘official’ personnel may testify as lay witnesses based on their training and experience are in
disarray and require clarification for the purpose of guiding trial judges and attorneys in future
civil and criminal cases on this increasingly confused subject.” Henderson, ¶ 27 (Gray, C.J.,
dissenting). Chief Justice Gray’s words have proved prophetic. See generally Henderson,
¶¶ 28-32 (Gray, C.J., dissenting) (summary of case law demonstrating the development of two
separate lines of cases regarding testimony of “official personnel”).


                                           23
the Court acknowledges that Tucker’s testimony constituted an authentication error under

M. R. Evid. 901(b)(2), and proffers a Van Kirk analysis, the Court’s analysis is legally

incorrect and factually inconsistent with the record. I believe the Court has significantly

watered down the Van Kirk standards and has failed to “insure that the substantial rights

of the defendant are not prejudiced by the admission of tainted evidence.” Van Kirk,

¶ 50.

¶61     As an initial matter, the fact should not be lost that the State tried this case with

expert testimony, which was noticed, at best, some 12 days before trial was to begin.

Although he correctly objected to the expert aspects of Tucker’s testimony, Forsythe was

left without time to obtain expert testimony to rebut it. This resulted in further prejudice

to Forsythe.

¶62     The Court takes the most unusual step of conducting its own handwriting analysis

of the letters, and concludes therefrom that, “[t]hough somewhat altered in some of the

letters, the writing styles still remained substantially similar in most regards.” Opinion,

¶ 46. It should go without saying that an appellate court has no expertise in handwriting

analysis; but beyond that, the problem the Court fails to acknowledge is that the only

explanation about these “writing styles” provided during the trial was Tucker’s

inadmissible testimony. Without that, the jury would have been left to their own devices

in analyzing the letters, which, as evidenced by these two samples, were written in

different styles.2


2
 Sample 1 is an excerpt from State’s Exhibit 2E and Sample 2 is an excerpt from State’s Exhibit
2C.


                                          24
                                pritid As2/            Jai               or.i4
      doLi        Alt                   OrRS_ %V,riZ Pirtt//ki rtiL
      Z_ILLLIclictiZ            LisirtizZ Vezi ll hf           enrjV Joy
      ~tio-t ./ rti r rlsL Zs to.                                 ges11
      oCZn•chi     m     So .61                                        \-eauf
            %,2,2_.s.Lizi...nin,J!                                    LiP st)



                                                                          :_s
       You --5hou(-0( CsLL
                                           EY-1 /CC-If4
                                                      - You
                   C E..    F1Nd yreLL 4
                                       ,

                                   e5eriNisk- vt€, clod
        l_JoNt
                                               \ACM E. at,911-rjr ICY ti)
                                                                         AY.
       You          iv cz          cH

¶63    Some of the letters forming the basis of the tampering charge stated that they were

from persons other than Forsythe, and the altered writing style was apparently employed

to further Forsythe’s alleged subterfuge. Thus, under the State’s theory of the case, it was

necessary to establish that the letters were written exclusively by Forsythe. I think it is

possible that a rational jury, looking only at the letters, without guiding expert testimony,

could have had doubt about whether the letters were written by the same person. In order

to establish they were all written by Forsythe, the State offered Tucker, who offered

expert testimony to assist the jury, as follows:

       [State’s counsel:] Q. And did you use accepted procedures to analyze
       these letters?
       [Tucker:] A. Yes, I did.


                                          25
       Q. Now, since then have you had the opportunity to compare those
       exhibits [(the letters allegedly written by Forsythe and sent to his wife)] to
       other writings [(the letters allegedly written and signed by Forsythe and
       sent to the District Court)]?
       A. Yes, I have.
                                            . . .
       Q. What’s unique about these letters?
                                            . . .
       A.     For example, the letter E, regardless of where the letter was in a
       word or in a sentence, it was always the same letter form. Particularly,
       there are some, what we call, hiatuses in writing, particularly with the
       capital letter M, on the upper left-hand corner of the M, there’s a hiatus,
       which is basically a lift in the pen, the writing, so that the writing doesn’t
       connect in that spot, and that’s consistent throughout all of the writing that
       I looked at. Also, the slope and slant of the t-bar and the I is very -- very
       distinct in all of this writing.
                                            . . .
       Q. And you’ve reached an opinion [about the letters]?
       A. Yes, the opinion that I’ve reached between both sets [of letters] . . .
       the writing that I was given that was written to the Judge and the writing I
       was given that was allegedly written to . . . [Forsythe’s wife], I consider
       them not verifiable as far as to who the author actually is, so I consider
       them questioned documents. But I did compare them together, and my
       professional opinion is that they were written by the same author, both sets
       of letters.

(Emphasis added.)

¶64    Tucker provided substantive, technical testimony.           He applied “accepted

procedures,” analyzed the letters, and offered a professional opinion that “they were

written by the same author, both sets of letters.” The State did not present any other

evidence proving this point.

¶65    The Court deals with the problem of Tucker’s inadmissible testimony, first, by

minimizing it as “merely foundational evidence.” Opinion, ¶ 42. It was much more than

that. As the Court here affirms, the letters were properly admitted during the trial on the

basis of Giana’s testimony that she had received them. See Opinion, ¶ 31 (“[T]he District


                                         26
Court did not abuse its broad discretion by admitting the letters into evidence as they

were not privileged.”).      Tucker’s testimony was not necessary to lay additional

foundation for admission of the letters. Rather, as evident from the quoted testimony

above, the State used Tucker to accomplish a qualitatively different purpose—to

establish, by scientific analysis and opinion, that all eight letters at issue had been written

by the same person, which was necessary to establish the tampering charge. The Court’s

dismissive characterization of Tucker’s testimony as “merely cumulative to other

evidence proving the foundational authenticity” of the letters, Opinion, ¶ 45, fails to

comprehend the significance of the testimony and the State’s purposes.

¶66    Secondly, the Court minimizes the effect of Tucker’s testimony by manufacturing

its own, non-record evidence. It relies, repeatedly, on the asserted facts that Giana “was

familiar” with Forsythe’s handwriting and that she “did not acquire that familiarity for

purposes of litigation.” Opinion, ¶¶ 43-47. However, there is absolutely no evidence of

these things in the record. About the letters, Giana testified only that she had received

them. The sum total of her testimony was as follows:

       [State’s counsel:] Q. Now, Gianna, at some point, you received letters --
       [Gianna:] A. Yes.
       Q. - - from your husband?
       A. Yes.
       Q. How many did you receive?
       A. I think five. I think four, five.
       Q. Did you eventually turn those letters over to law enforcement?
       A. Yes.

The absence of any evidence in the record forces the Court to turn these non-record

assumptions into evidence on the basis that “Forsythe does not dispute” them. Opinion,



                                          27
¶¶ 43, 47. It need only be asked: How was Forsythe supposed to dispute evidence that

was never introduced? Forsythe likewise did not dispute a great many other things that

were not introduced, but that does not magically turn these things into record evidence.

¶67    Another problem the Court fails to see is the impact on the trial of the tainted

testimony in combination with the admitted letters. The jury’s assessment of the letters

was polluted by the improper expert testimony that affirmatively concluded all of the

letters were written by the same person. The jury was not allowed to draw a conclusion

about the letters themselves. While the Court offers that a lay jury may determine

foundational authenticity by comparison to other specimens, Opinion, ¶ 44, it fails to

recognize that this province of the jury was invaded here by Tucker’s improper expert

testimony.

¶68    As we recently explained in Kaarma about the same error:

       Inadmissible evidence will not be found prejudicial so long as the jury was
       presented with “admissible evidence that proved the same facts as the
       tainted evidence proved.” Van Kirk, ¶ 43. This presented evidence must be
       admissible and of the same quality of the tainted evidence such that there
       was no reasonable possibility that it might have contributed to the
       defendant’s conviction. Van Kirk, ¶ 44.

Kaarma, ¶ 89 (emphasis added). Here, as noted, no other evidence proving the same

facts as the tainted evidence was introduced by the State. While the Court reasons that

the tainted evidence was not significant enough to “undermine the fairness” of the trial

because it was “merely” foundational evidence, Opinion, ¶ 42, the above

discussion demonstrates otherwise. This evidence went directly to the elements of




                                        28
tampering—Tucker’s testimony alone uniquely demonstrated scientifically that all the

letters had been written by Forsythe. Thus, the State cannot meet its burden.

¶69    “Moreover, the State must also demonstrate that the quality of the tainted evidence

was such that there was no reasonable possibility that it might have contributed to the

defendant’s conviction.” Van Kirk, ¶ 44 (emphasis in original). In my view, Tucker’s

expert testimony was of a significant quality, as it affirmatively declared on the basis of

technical knowledge that a single author had written all of the letters, despite the facial

differences in handwriting. No other evidence did so, and Tucker’s expert testimony was

powerful evidence to a lay jury. Thus, the State cannot establish that the error was

harmless under this inquiry, either. Consequently, reversal here is “compelled.” Van

Kirk, ¶ 45. The State—and the Court, I would add—have failed to demonstrate “no

reasonable possibility exists that the admission of the tainted evidence might have

contributed to the defendant’s conviction.” Van Kirk, ¶ 46. The Court’s approach

subverts the Van Kirk inquiry and returns to the subjective, ad hoc analysis of the record

we sought to abandon by adopting the Van Kirk standards. Van Kirk, ¶¶ 35-36.

¶70    Believing the expert testimony from Tucker was prejudicial under these

circumstances, I would reverse and remand for a new trial.


                                                 /S/ JIM RICE


Justice Beth Baker joins in the concurring and dissenting Opinion of Justice Rice.


                                                 /S/ BETH BAKER



                                        29
