                                                                                             May 28 2014


                                          DA 12-0487

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 139



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DEAN O. CRIDER,

              Defendant and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. CDC 2011-250
                        Honorable Kathy Seeley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Jonathan King, Attorney at Law, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Mary
                        Cochenour, Assistant Attorneys General, Helena, Montana

                        Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana



                                                    Submitted on Briefs: February 12, 2014
                                                               Decided: May 28, 2014


Filed:

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

¶1     Dean O. Crider (Crider) appeals from the judgment of the Montana First Judicial

District Court, Lewis and Clark County, following his jury conviction for felony Sexual

Intercourse Without Consent in violation of § 45-5-503(1), MCA; misdemeanor Partner or

Family Member Assault (PFMA) (second offense) in violation of § 45-5-206(1)(a), MCA;

and felony Tampering With Witnesses and Informants in violation of § 45-7-206(1)(a),

MCA. We affirm.

                                         ISSUES

¶2     We review the following issues:

       1. Did the District Court abuse its discretion when it admitted evidence that
       Crider had previously assaulted and harassed the victim?

       2. Should we exercise plain error review to review the District Court’s
       instruction to the jury regarding the evidence of the previous bad acts?

       3. Did Crider receive ineffective assistance of counsel when his counsel failed
       to object to the State’s use of the previous bad acts?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     Crider was M.W.’s high school crush. The two had been good friends for fifteen

years when they started dating, in 2009. On July 8, 2011, Crider and M.W. took M.W.’s two

young children to play at a park. While they were at the park, M.W. received a text message

from an ex-boyfriend of hers that read “Where’s my Friday night blow job  LOL.” Crider

saw the message. M.W. testified that the message was supposed to be a joke and would not

have meant anything if Crider had not seen the message. “[B]ut because he was sitting there,

it—it meant that there was going to be some not-so-fun stuff happening.” M.W. routinely


                                             2
allowed Crider to look through her phone because he always wanted to know who was

calling her and texting her. After seeing the message, Crider became very angry.

¶4     Crider and M.W. drove to M.W.’s mother’s house and dropped the children off. Then

they went to Crider’s house, where they argued for a little while and began drinking shots of

Black Velvet whiskey. When they finished the Black Velvet they went to the Libation

Station, two blocks from Crider’s house, where they ran into friends he knew. M.W.

testified that “while we were there, it was like everything was fine and nothing had

happened.” Crider wanted to go to East Helena to continue socializing with the friends they

met at the bar. The two bought a liter of Black Velvet to go and began driving to East

Helena. They began arguing en route. While M.W. was driving, Crider began burning her

with a cigarette and poured three-quarters of the bottle of Black Velvet over her head. At

that point, M.W. testified, Crider had reached a point of anger where “he’s just a completely

different person. . . . It’s like something clicks in his head, and it’s just done. There’s no

changing his mind or calming him down.” She explained that she had not recognized his

propensity for this kind of anger until about four months into the relationship. M.W. stopped

the car and said she would try to fix things, because she loved him. The two returned to

Crider’s house to try to “work through it.”

¶5     At Crider’s house, M.W. and Crider drank more Black Velvet. At some point M.W.

may have told Crider he could “do whatever he wanted” to her. Crider told her that if she

was going to act like a whore he was going to treat her like a whore. He made her take off

her clothes and give him oral sex. Because Crider was holding M.W.’s hair and controlling

the oral sex, she vomited four or five times. M.W. told Crider to stop. He did not stop.

                                              3
After at least half an hour of this, Crider dragged M.W. into the bathroom by her hair and

began having anal sex with her. That did not last very long because “it hurt really bad.”

M.W. told Crider to stop and he stopped almost immediately. He threw her on the bed and

penetrated her vagina with his fist. This, M.W. testified felt “comparable to having a baby.”

M.W. told Crider to stop and kicked him off her. He grabbed her by her hair and her arms

and threw her, naked, out of the house. M.W.’s clothes and car keys were inside the house.

She pounded on the door and begged Crider to let her back in, because she loved him and

wanted to make it better. After five minutes, Crider let her back in. He pulled her around by

the hair, threw her into walls and made her give him more oral sex. Then he threw her out

again. This time she went to his mother’s house, next door, and hid in the porch. His mother

drove her home at 5:30 a.m.

¶6     The next morning, M.W. called the police to ask for help recovering her car and her

keys. The police explained they could not do that unless a domestic report was filed. She

declined to file a report because she did not want Crider to get in trouble. M.W. and Crider

texted back and forth for awhile, then talked to one another. Crider was “apologetic and

sorry and said he didn’t really remember what happened.” They arranged a time when M.W.

could get her possessions, but did not see each other again. M.W. did not tell anyone what

had happened until she spoke to a friend a few days later. Her friend reported the incident.

M.W. made verbal and written statements about the incident to the domestic violence officer

with the sheriff’s department.

¶7     Eight days after the incident occurred, and at the domestic violence officer’s

recommendation, M.W. went to the emergency room for an examination. The examination

                                             4
revealed bald spots on M.W.’s head where Crider had pulled out her hair. It also revealed

cigarette burns, and bruising around both eyes. M.W. had rug burns and bruises on her

knees. She had a bruise and a cut on her side that she believed she got when Crider threw

her into a heater. She had abrasions around her anus and inside of her rectum.

¶8     Over Crider’s motion in limine, the District Court admitted evidence of previous

incidents of violence between M.W. and Crider, narrowly finding it probative of “motive” or

“absence of mistake or accident.” The court declined to admit several incidents involving

Crider with a previous partner. In July 2010, Crider had been convicted of PFMA to an

incident with M.W. In January 2011, M.W. reported to law enforcement that Crider had

broken down her door. In May 2011 M.W. called law enforcement to report that Crider was

continually calling her and was parked in the area in which she lived. And in June 2011,

M.W.’s mother called law enforcement to report that Crider was continually calling her

phone. The District Court specifically cautioned in its Order ruling on the motion in limine:

“If an issue arises about whether offered evidence falls within the parameters of that allowed

by this Order, the parties shall bring the matter to the attention of the Court out of the hearing

of the jury.”

¶9     Between the time when charges were pressed against Crider for his conduct in the

July 2011 incident and the trial date, M.W. recanted her allegations against Crider. The

defense entered into evidence several text messages M.W. sent to Crider saying that she still

loved him and asking to see him before she pressed charges. There were also several

photographic text messages of a tattoo of Crider’s initials that M.W. got on her chest, after

the incident occurred, inside a heart tattoo she had. Because the two were attempting to

                                                5
reconcile and Crider was influencing her, M.W. said, M.W. made a statement to the domestic

violence officer with the sheriff’s department that the sex had been consensual, but had been

overly rough and aggressive. As part of this effort, and at Crider’s urging, M.W. also left

several voicemails on Crider’s phone to make it seem as though she was at fault for the

incident. She said that she had lied about the rape, that she had had an abortion without

telling him, and that she was using methamphetamine. She also met with his lawyers to

submit a tape recorded statement that she had lied about the rape.

¶10    Both the State and the defense hired experts to testify at trial regarding the psychology

of abuse. The State’s expert testified that domestic violence is a pattern of controlling

behaviors that also includes violence at times to reinforce the control over the other person.

The expert testified that often violence between partners will escalate over time—that a

person who is not violent at the beginning of the relationship will become violent. Often

after parties separate following an incident of domestic violence, the victim, believing the

abuser is really sorry, will begin to question whether he or she correctly perceived events and

whether his or her actions caused the violence. The expert testified that sometimes victims

will recant allegations or minimize the abuse that occurred.

¶11    The defense expert testified that behaviors among abuse victims varied too widely to

reliably characterize that behavior. The defense expert further testified that recanting or

minimizing allegations of domestic violence does not necessarily mean someone is a victim.

On cross examination, however, the defense expert conceded that it is not uncommon for

victims of abuse to recant allegations, return to their abusers, or lie to get abusers out of

trouble.

                                               6
¶12    During its opening statement, the State explained: “And I can tell you that during this

trial you’re going to hear from [M.W.], but I’m not 100 percent sure whether what you’re

going to hear from her about that night when she sits in that chair—what version of it you’re

going to hear.”     When M.W. testified, she stated that the July 2011 incident was

nonconsensual, giving the original version of events set forth above. She testified that she

had recanted her allegations of rape because she still loved Crider and was attempting to

reconcile with him. She also testified about the July 2010 PFMA. In that case, Crider had

thrown her up against a wall, slammed her head against the hood of his vehicle and thrown

her on her face on a gravel road. This occurred because M.W. asked him to leave her house

related to his behaviors involving other women, and threatened to call the police when he

became physically aggressive. M.W. disobeyed a court order to attend the trial and testify

against Crider in that case because she did not want him to go to jail.

¶13    After M.W. testified at trial, the State requested that the District Court instruct the jury

as to the other “bad acts.” The court read the following instruction to the jury:

       The state has offered evidence that the defendant, at another time, engaged in
       other crimes, wrongs, or acts. That evidence was not admitted to prove the
       character of the defendant or show that he acted in conformity therewith. The
       only purpose of admitting that evidence was to show proof of motive,
       opportunity, plan, knowledge, identity, or absence of mistake or accident.
       You may not use that evidence for any other purpose.
       The defendant is not being tried for those other crimes, wrongs, or acts. He
       may 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.

When the District Court settled jury instructions, the defense confirmed it had no objection

to the prior bad acts instruction “as requested by the parties.” When the final instructions

                                                7
were read, the court said it would not read the other preliminary instructions that had already

been read, but re-read the one on prior bad acts for emphasis. The State, in its closing

statement, used the prior bad acts evidence to imply that M.W. was a victim of domestic

violence.

                                  STANDARDS OF REVIEW

¶14    This Court reviews a district court’s ruling regarding the admission of other crimes,

wrongs, or acts for an abuse of discretion. State v. Green, 2009 MT 114, ¶ 14, 350 Mont.

141, 205 P.3d 798. To the extent the court’s ruling is based on an interpretation of an

evidentiary rule or statute, our review is de novo. Puccinelli v. Puccinelli, 2012 MT 46, ¶

12, 364 Mont. 235, 272 P.3d 117.

¶15    We review jury instructions to determine whether the instructions as a whole fully and

fairly instruct the jury on the applicable law. State v. Ring, 2014 MT 49, ¶ 13, 374

Mont.109, ___ P.3d ___. District courts are given broad discretion when instructing a jury

and reversible error occurs only if the jury instructions prejudicially affect the defendant’s

substantial rights. Ring, ¶ 13.

¶16    Claims of ineffective assistance of counsel (IAC) present mixed questions of law and

fact that we review de novo. Green, ¶ 14.

                                       DISCUSSION

¶17 1. Did the District Court abuse its discretion when it admitted evidence that Crider
had previously assaulted and harassed the victim?

¶18    Crider argues that the District Court abused its discretion in admitting the evidence of

his prior bad acts to prove motive and absence of mistake or accident. The State counters


                                              8
that Crider did not properly preserve this issue for appeal because he never objected to the

prior bad acts evidence on the basis that the District Court improperly admitted it to show

motive or absence of mistake.

¶19    A motion in limine has “special advantages” and serves an important strategic

purpose. State v. Ingraham, 1998 MT 156, ¶ 36, 290 Mont. 18, 966 P.2d 103. We have

encouraged the use of motions in limine to preserve objections in cases where “[a] party may

not wish to register an objection in the presence of the jury for tactical reasons, yet may wish

to preserve the objection on appeal.” Ingraham, ¶ 36. A party raising an objection through a

motion in limine “need not continually renew the objection to preserve alleged errors for

appeal.” Hulse v. Dept. of Justice, 1998 MT 108, ¶ 46, 289 Mont. 1, 961 P.2d 75.

¶20    To preserve an objection for appeal through use of a motion in limine, the objecting

party must make the basis for his objection clear to the district court. Ingraham, ¶ 36. A

district court will not be put in error where it was not given an opportunity to correct itself.

State v. Weeks, 270 Mont. 63, 85, 891 P.2d 477, 490 (1995). “To preserve a pretrial

objection for appeal through a motion in limine, the motion must be ‘sufficiently specific as

to the basis for the objection.’” State v. Stock, 2011 MT 131, ¶ 45, 361 Mont. 1, 256 P.3d

899 (quoting State v. Vukasin, 2003 MT 230, ¶ 29, 317 Mont. 204, 75 P.3d 1284). The

motion in limine must specify the evidence to which the defendant is objecting. See

Vukasin, ¶¶ 35-37 (motion in limine was not sufficient to preserve an issue for appeal where

it only sought to exclude any “reference, comment, allusion or statement made to any crime,

wrong or act pursuant to M.R. Evid. Rule 404(b)” and did not specify the basis for the

objection) (quotation omitted).

                                               9
¶21    In State v. Dist. Court of the Eighteenth Judicial Dist., 2010 MT 263, ¶ 49, 358 Mont.

325, 246 P.3d 415, we set forth the process governing admission of Rule 404(b) evidence.

First, the prosecution discloses to the defendant the evidence it plans to introduce.

Eighteenth Judicial Dist., ¶ 49. This is only a disclosure requirement; the prosecution is not

required to explain why the evidence is admissible. Eighteenth Judicial Dist., ¶ 49. After

disclosure has occurred, the defendant may, via motion in limine, explain why the evidence

should be excluded as irrelevant, unfairly prejudicial, relevant only for an improper

propensity inference or otherwise inadmissible. Eighteenth Judicial Dist., ¶ 49. Then, the

prosecutor must respond to the defendant’s objections and demonstrate the evidence’s

admissibility. Eighteenth Judicial Dist., ¶ 49. The court should conduct a hearing and issue

a written decision with appropriate findings of fact and conclusions of law. Eighteenth

Judicial Dist., ¶ 49.

¶22    In this case, in the first step, Crider was placed on notice of the evidence the

prosecution intended to introduce during the normal course of discovery, when the State

turned over a number of police reports against him. Those reports dated back to 2004 and

involved Crider and a former girlfriend as well as Crider and M.W. Crider knew the State

intended to introduce this “evidence of crimes, wrongs, or acts pursuant to M.R.Evid. 404”

when, in the second step under the foregoing process, he filed the brief supporting his motion

in limine. His brief specified that its purpose was to raise “objection to any such effort.”

Specifically, Crider’s brief referenced the reports dating back to 2004 and highlighted the

danger of bad acts evidence: That it could lead a jury to conclude that, because the

defendant had engaged in past bad conduct, his character showed he had committed the

                                             10
crimes at issue. Because he did not know the precise Rule 404(b) exceptions on which the

State intended to rely to introduce the evidence, the motion set forth general grounds for

excluding Rule 404(b) evidence and opposed the evidence pursuant to Rule 403, on the

grounds that it was more prejudicial than probative. Taking the third step noted above, the

State responded, setting forth the specific evidence it sought to introduce and the argument

that the evidence was admissible to show motive and absence of mistake or accident. Crider

did not file a reply brief and neither party requested a hearing. Less than two weeks before

trial, the District Court ruled on the motion, concluding that only the proposed evidence of

prior acts involving M.W. was admissible, to show motive or absence of mistake or accident.

The District Court excluded Crider’s bad acts with partners other than M.W.

¶23    We conclude that Crider’s motion in limine was sufficiently specific to preserve his

objection to the bad acts evidence for appeal. Crider’s brief made clear that he was objecting

to the prior bad acts evidence because it could lead the jury to make an impermissible

character inference, which is the essence of his argument on appeal. It also specifically

referred to evidence of acts from between 2004-2007—evidence the District Court excluded.

These arguments made the substance of, and basis for, Crider’s objection to the prior bad

acts evidence sufficiently clear that the District Court was able to address them. Further, it is

evident from the court’s order in limine that it was able to grasp the theory and basis for

Crider’s motion, as the court granted his motion in part by excluding all bad acts evidence

involving victims other than M.W., but denied the motion as to acts involving M.W. This

case is thus different from others like Vukasin, where the District Court was not directed to

the issue the defendant sought to raise on appeal. Because the facts and chronology before

                                               11
us establish that the parties followed the steps outlined in Eighteenth Judicial Dist., and the

District Court was able to make an informed ruling on Crider’s motion in limine, we address

Crider’s contention that the evidence was improperly admitted on its merits.

¶24    Evidence of prior bad acts by a defendant is admissible as long as it is not offered or

used for an improper purpose. To this end, Rule 404(b), provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It may,
       however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident.

In State v. Stewart, 2012 MT 317, ¶ 65, 367 Mont. 503, 291 P.3d 1187, we explained that the

use of prior bad acts evidence to prove the commission of the crime at issue (or “actus reus”)

does not necessarily run afoul of Rule 404(b). Rather, the rule prohibits a theory of

admissibility: Using propensity evidence to draw “the inference from bad act to bad person

to guilty person.” Stewart, ¶ 61. Rule 404(b)’s prohibition “‘applies only when that ultimate

inference [of conduct] is coupled with the intermediate inference of the defendant’s personal,

subjective character. If the prosecutor can arrive at an ultimate inference of conduct through

a different intermediate inference, the prohibition is inapplicable.’” Stewart, ¶ 65 (quoting

Edward J. Imwinkelried, Uncharged Misconduct Evidence vol. 1, § 4:1, 4-5 to 4-6 (rev. ed.,

Thomson Reuters/West 2009)).

¶25    Contrary to the premise underlying Crider’s motive argument, a prior bad act need not

give rise to a motive or reason for the defendant to commit the crime charged. Eighteenth

Judicial Dist., ¶ 59. In Eighteenth Judicial Dist., ¶ 59, we explained that a prior bad act may

evidence the existence of a motive without supplying the motive. In such cases, the motive

                                              12
is the cause and both the prior acts and the act at issue are effects. Eighteenth Judicial Dist.,

¶ 59. The prosecutor uses the prior bad acts to show the existence of the motive and the

motive strengthens the inference that the defendant committed the crime charged.

Eighteenth Judicial Dist., ¶ 59.

¶26    Here, the State argues on appeal that the prior bad acts evidence showed “Crider’s

motive to exert power and control over his victim, and to use force to do so[.]” The jury

heard testimony from the State’s expert that domestic violence generally involves issues of

power and control; and that “[s]exual violence is often included as a way to demean the

partner and maintain that control.” The prior incident of physical violence occurred in

Crider’s attempt to control M.W. by preventing her from leaving him and preventing her

from calling the police. Breaking down M.W.’s door is an act that exerts control over

M.W.’s physical space. Crider’s constant phone calls to M.W. and lurking outside her place

of residence tend to show Crider’s desire to control M.W.’s movements by monitoring her

location. His constant calls to her mother exert control over her by harassing her relatives.

The motive of exerting power and control is common to the prior acts admitted and is

probative of Crider’s motive as to the sexual acts at issue in this case.

¶27    For similar reasons, the incidents speak to absence of mistake or accident and are

admissible because they refute an aspect of Crider’s affirmative defense. Part of Crider’s

defense is that he and M.W. frequently engaged in rough sex and that the sex on the occasion

at issue was consensual. In other words, Crider claims that if he exceeded her consent, he

did so by accident. The evidence of prior incidents showing Crider’s motive to exert power

and control over M.W. refutes that argument. In Eighteenth Judicial Dist., we permitted

                                               13
evidence that a mother accused of killing her child had mistreated the child in the past, when

the mother suggested the child’s death was accidental. Eighteenth Judicial Dist., ¶ 61.

Similarly, here, the State may present evidence that tends to refute Crider’s characterization

of the brutalization he forced M.W. to endure as mistaken or accidental.

¶28    The Dissent relies on State v. Keys, 258 Mont. 311, 852 P.2d 621 (1993), to argue that

“the defendant’s motive or intent is not relevant where the only issue is whether the victim

consented to the sexual intercourse.” That argument falls flat because Keys, which predates

Eighteenth Judicial Dist., is factually distinguishable, and the question of whether M.W.

consented is not the only issue here. Keys concerned whether an incident involving indecent

exposure and assault by the defendant with another victim was admissible as evidence that

he had committed the sexual intercourse without consent at issue in that case. Keys, 258

Mont. at 316, 852 P.2d at 624. We concluded that the evidence was not relevant where the

only issue was whether the alleged rape victim consented. Keys, 258 Mont. at 316, 852 P.2d

at 624. Here, however, the State sought to admit Crider’s prior incidents with M.W. as

probative of Crider’s motive to control or harass M.W. Such a motive was relevant, not only

to Crider’s motive as to the sex acts alleged, but also to his motive to commit the offenses of

PFMA and witness tampering with which he was also charged related to this incident. Thus,

unlike in Keys, where the only crime charged was sexual intercourse without consent,

M.W.’s consent is not the only issue. M.W., unlike the victim in Keys, was also the victim

of the prior bad acts the prosecution sought to admit. The District Court excluded the

evidence we found improper in Keys—evidence of the defendant’s prior acts with someone

other than the victim. The evidence of Crider’s prior acts with M.W., however, was relevant

                                              14
and probative as to his motive to harass and control her. Accordingly, we conclude that the

District Court did not abuse its discretion in determining that Crider’s prior acts were

admissible to show motive or absence of mistake or accident.

¶29 2. Should we exercise plain error review to review the District Court’s instruction to
the jury regarding the evidence of the previous bad acts?

¶30    Where a defendant has not preserved an issue for appeal, this Court may, at its

discretion, exercise plain error review to review an alleged error. We invoke the plain error

doctrine sparingly, on a case-by-case basis. State v. Daniels, 2011 MT 278, ¶ 32, 362 Mont.

426, 265 P.3d 623. “For plain error review of an unpreserved issue, the appealing party must

(1) show that the claimed error implicates a fundamental right and (2) ‘firmly convince’ this

Court that failure to review the claimed error would result in a manifest miscarriage of

justice, leave unsettled the question of the fundamental fairness of the trial or proceedings, or

compromise the integrity of the judicial process.” Daniels, ¶ 32.

¶31    Crider argues that the District Court improperly instructed the jury that the evidence

could be considered to prove motive, opportunity, plan, knowledge, identity, or absence of

mistake or accident, when the court had previously ruled that the evidence could be

considered only to prove motive or absence of mistake or accident. Citing no authority, he

argues that this alleged error violated his fundamental right to due process of law guaranteed

by the United States and Montana Constitutions. This, in his view, leaves unsettled the

fundamental fairness of his trial and warrants plain error review.

¶32    Not only did Crider twice fail to object to the jury instruction in question, he

acquiesced to it both times it was read at trial. The record shows that the purpose for which


                                               15
the instruction was offered was not to expand the types of use the jury might make of the

evidence, but rather to limit them. The instruction stressed: “The Defendant is not being

tried for those other crimes, wrongs or acts. He may not be convicted for any other offense

than that charged in this case.” The jury instruction specifically provided that the evidence

“was not admitted to prove the character of the Defendant or to show he acted in conformity

therewith.” It accurately restated the law’s provision that evidence of other crimes, wrongs

or acts may be used to prove, for instance, motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident. While the jury instruction could

have been more specific about the purposes for which the evidence could be considered in

this case, it adequately served the underlying Rule 404 purpose of barring the “inference

from bad act to bad person to guilty person.” See Stewart, ¶ 61; Eighteenth Judicial Dist., ¶

47. Crider has failed to convince this Court that the jury instruction leaves unsettled the

fundamental fairness of the proceedings and we decline to exercise plain error review.

¶33 3. Did Crider receive ineffective assistance of counsel when his counsel failed to
object to the State’s use of the previous bad acts?

¶34    This Court has adopted the two-pronged test of Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052 (1984), in judging IAC claims. State v. Kougl, 2004 MT 243, ¶ 11, 323

Mont. 6, 97 P.3d 1095. To show IAC, a defendant must prove both (1) that counsel’s

performance was deficient, and (2) that counsel’s deficient performance prejudiced the

defense. Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. A defendant

must satisfy both prongs of this test in order to prevail on an IAC claim. Whitlow, ¶ 11.

There is a strong presumption that an attorney’s conduct falls within the wide range of


                                             16
reasonable professional service, and the defendant must overcome the presumption that,

under the circumstances, the challenged action might be considered a sound trial strategy.

Whitlow, ¶ 15. A fair assessment of attorney performance requires that every effort be made

to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct and to evaluate the conduct from counsel’s perspective at the time.

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. The question, however, is not merely

whether counsel’s conduct flowed from strategic decisions and trial tactics but whether it

was based on reasonable professional judgment. Whitlow, ¶ 19.

¶35    Generally, this Court will only consider IAC claims raised on direct appeal where the

record reveals the reasoning underlying a counsel’s actions or omissions. State v. White,

2001 MT 149, ¶ 20, 306 Mont. 58, 30 P.3d 340; see State v. Aker, 2013 MT 253, ¶ 22, 371

Mont. 491, 310 P.3d 506 (only record-based IAC claims are reviewable on direct appeal).

This is because the question of whether counsel’s conduct was based on the exercise of

reasonable professional judgment generally demands that we inquire why counsel acted as

alleged. To determine whether an IAC claim can be considered on direct appeal, we seek to

answer that question by reference to the record. Aker, ¶ 34. We have explained that “a non-

record based act or omission by counsel may actually include a failure to object to the

admission of evidence which is evidenced by the record.” White, ¶ 16.

¶36    We will also consider IAC claims on direct appeal where counsel is faced with an

obligatory, non-tactical action, or there is no plausible justification for defense counsel’s

actions. Kougl, ¶ 15. In those cases, the question is not “why,” but “whether” the counsel

acted, and if so, if counsel acted adequately. Kougl, ¶ 15. “Whether the reasons for defense

                                              17
counsel’s actions are found in the record or not is irrelevant. What matters is that there could

not be any legitimate reason for what counsel did.” Kougl, ¶ 15. Such situations are

“relatively rare.” Kougl, ¶ 15.

¶37    Crider argues that there was no plausible justification for his counsel’s failure to

object to the State’s use of the bad acts evidence at trial. He argues that the District Court

admitted the bad acts evidence narrowly, to show that Crider had a motive to harm, control

and harass M.W. and to show that M.W.’s injuries did not stem from an accident or mistake.

The State improperly used the evidence to establish M.W. as a victim of domestic violence

and thereby cure her “credibility problems,” he alleges. This use, he claims, exceeded the

purposes for which the court had authorized the evidence could be used under the Rule

404(b) exceptions. His counsel’s failure to object to the State’s use of this evidence, he

asserts, was inexcusable and prejudiced his defense.

¶38    We are not persuaded that Crider’s counsel’s failure to object to the State’s use of the

bad acts evidence at trial was unjustifiable. We have generally recognized that the timing

and number of objections is a matter of counsel’s tactical discretion. Aker, ¶ 35. “An

attorney is not required to make all possible objections during a trial, and may legitimately

decide to forego certain objections as a matter of trial tactics.” State v. Morsette, 2013 MT

270, ¶ 19, 372 Mont. 38, 309 P.3d 978. To hold that Crider’s counsel was obligated to object

to the State’s use of the evidence would gut this principle and we decline to do so.

¶39    This matter is suitable for consideration on direct appeal because the record is

sufficient to evaluate Crider’s IAC claim related to his counsel’s alleged omission. Rule

404(b) only bars the use of prior acts evidence to show action in conformity with propensity.

                                              18
See Stewart, ¶ 61. Pursuant to Rule 402, all relevant evidence is admissible. M. R. Evid.

402. The Montana Rules of Evidence define relevant evidence as follows:

       Relevant evidence means evidence having any tendency to make the existence
       of any fact that is of consequence to the determination of the action more
       probable or less probable than it would be without the evidence. Relevant
       evidence may include evidence bearing upon the credibility of a witness or
       hearsay declarant.

M. R. Evid. 401 (emphasis added). The prior acts evidence was admissible to reflect on

M.W.’s credibility, because the District Court had already concluded, pursuant to Rule 403,

that its probative value outweighed the danger of prejudice. No grounds for an objection to

the State’s use of the evidence existed and Crider’s counsel was not ineffective for failing to

make one.

¶40    Even if this were not the case, however, the record reveals that Crider’s counsel’s

actions, taken in context, were not ineffective. Crider made use of the motion in limine to

attempt to exclude evidence of prior bad acts. When that motion was unsuccessful, Crider

adjusted his trial strategy accordingly. Rather than objecting to the evidence at every turn,

knowing those objections would be overruled, Crider chose to challenge the State’s use of

that evidence to show that M.W.’s inconsistent testimony could be explained by domestic

violence. In light of this tactical change, which was prompted by the denial of his motion in

limine, Crider understandably chose not to raise repeated objections to the very evidence on

which his own expert witness had based an opinion. This is precisely the circumstance in

which preserving an objection via a motion in limine is of particular tactical advantage.

Ingraham, ¶ 36. We conclude that the failure to object to the State’s use of the evidence was



                                              19
within the range of competent professional assistance, particularly considered in light of

Crider’s trial strategy.

¶41    Accordingly, Crider’s IAC claim must fail.

                                      CONCLUSION

¶42    We affirm in all respects the District Court’s decision.

                                                   /S/ MICHAEL E WHEAT
We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER



Justice Laurie McKinnon, dissenting.

¶43    In my opinion, Crider presents credible arguments that the evidence of his prior

domestic abuse should not have been admitted under theories of “motive” or “absence of

mistake or accident” to substantively prove his guilt of the charged offenses. Moreover, it is

my view that, had the District Court been presented with the analysis which Crider now

presents on appeal, the District Court’s ruling on the uncharged misconduct evidence likely

would have been different. However, the first time that any court has been asked to consider

Crider’s arguments as to why the particular Rule 404(b) theories do not apply is in the

present appeal, long after Crider’s trial ended.

¶44    While our decision in State v. Eighteenth Judicial District Court, 2010 MT 263, 358

Mont. 325, 246 P.3d 415, significantly altered the procedural requirements for objecting to

other-acts evidence from what had previously been established under State v. Just, 184 Mont.


                                             20
262, 602 P.2d 957 (1979), and State v. Matt, 249 Mont. 136, 814 P.2d 52 (1991), it did not

alter our well-established precedent requiring the defense to state with specificity the bases

for its objections to such evidence. In fact, the procedures we established in Eighteenth

Judicial District Court reaffirmed that the defense must specify its objections to the evidence

of other crimes, wrongs, or acts—and the particular reasoning for those objections—in the

district court. The Court’s approach in today’s decision undermines this requirement and our

longstanding precedent which states that we will not consider arguments raised for the first

time on appeal. State v. Homer, 2014 MT 57, ¶ 12, 374 Mont. 157, 321 P.3d 77; State v.

Lotter, 2013 MT 336, ¶ 31, 372 Mont. 445, 313 P.3d 148; State v. Stops, 2013 MT 131, ¶ 33,

370 Mont. 226, 301 P.3d 811; State v. Kelm, 2013 MT 115, ¶ 35, 370 Mont. 61, 300 P.3d

687; State v. Lewis, 2012 MT 157, ¶ 22, 365 Mont. 431, 282 P.3d 679. I accordingly dissent.

                       Whether the Issue was Preserved for Review

¶45    Prior to Eighteenth Judicial District Court, a prosecutor was required to sort through

the State’s evidence, ascertain whether any of it might be objectionable under Rule 404(b),

and give the defendant notice of that evidence before the omnibus hearing.1 Eighteenth Jud.

Dist. Ct., ¶¶ 40-41 (discussing the notice rules under Just, 184 Mont. at 274, 602 P.2d at

963-64, and Matt, 249 Mont. at 142-43, 814 P.2d at 56); see also § 46-13-109, MCA (2009),

repealed, Laws of Montana, 2011, ch. 130, § 2. The prosecutor had to identify the

potentially objectionable evidence, specify the purposes for which it was being offered, and


       1
         M. R. Evid. 404(b) states: “Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.”

                                                21
apprise the defendant why the evidence was admissible under the purposes stated. The

defendant then would respond to the prosecutor’s notice, arguing that the notice was

deficient, that the evidence was not admissible under the prosecutor’s theories, or both.

¶46    We determined in Eighteenth Judicial District Court that this procedure was

problematic for various reasons. “For one thing, it put[ ] the prosecutor in the position of

having to justify the admission of evidence in the absence of any objections by the

defendant.” Eighteenth Jud. Dist. Ct., ¶ 44. It forced the prosecutor to “identify any

prosecutorial evidence” to which the defense might object and to “anticipate what the

defense objections might be.” Eighteenth Jud. Dist. Ct., ¶ 45. “It also relieve[d] defense

counsel of her duty to diligently prepare a defense for her client, to seek discovery of the

State’s case, to determine which of the State’s evidence may be inadmissible, and then to

raise any viable evidentiary issues before trial.” Eighteenth Jud. Dist. Ct., ¶ 46.

¶47    We concluded that the better approach would be for these evidentiary issues to be

raised initially by the defense. Eighteenth Jud. Dist. Ct., ¶ 49. We therefore overruled Just

and Matt and adopted the following procedures. The State first must disclose to the

defendant the witnesses and evidence it may introduce at trial. The defendant then must

identify any of the State’s evidence that he believes should be excluded as irrelevant

(Rule 402), unfairly prejudicial (Rule 403), relevant only for an improper propensity

inference (Rule 404), or inadmissible under some other rule, and “explain with argument and

authority why the evidence should be excluded.” Eighteenth Jud. Dist. Ct., ¶ 49. We noted

that this may be accomplished through a motion in limine. Eighteenth Jud. Dist. Ct., ¶ 49.

The prosecutor next must respond to the defendant’s objections and identify a valid,

                                             22
nonpropensity purpose for which the evidence may be admitted. Eighteenth Jud. Dist. Ct.,

¶ 49. Lastly, implicit in this framework and consistent with our precedent generally

requiring specificity in order to preserve error, if the defendant believes that the particular

Rule 404(b) theory or nonpropensity purpose identified by the prosecutor is invalid, then the

defendant must advance his theory of inadmissibility, beyond a mere generalized Rule

404(b) objection, in order to preserve the issue for review. Indeed, without a response from

the defendant, the district court is left with an uncontested argument by the State for

admitting the evidence under a given nonpropensity theory.

¶48    Unfortunately, this procedure was not fully complied with in the present case.

Through the normal course of discovery, Crider was given notice of the State’s evidence,

which included over 50 police reports dating back to 2004. Additionally, in the Omnibus

Hearing Memorandum (filed December 20, 2011), the prosecutor expressly stated that she

intended to introduce evidence of other crimes, wrongs, or acts. The Omnibus Hearing

Memorandum set forth a timeline for the parties’ briefing on this issue: Crider’s initial brief

was due on January 6, 2012; the State’s response brief was due ten days after Crider’s brief

was served; and Crider’s reply brief was due five days after the State’s brief was served. The

District Court specifically contemplated a reply brief from Crider addressing the

nonpropensity theories proposed by the State.

¶49    Crider filed his initial brief on January 6, 2012. However, he did not identify with

specificity what evidence he was objecting to. Instead, observing that “[a]pparently, the

State will attempt, at trial, to bring into evidence prior criminal or wrongful conduct of the

Defendant,” Crider presented a generalized argument that any such evidence cannot be used

                                              23
“to establish the Defendant’s character and conduct in the instant case conforms to his

character and conduct in prior incidents of bad acts.” Of course, this assertion just restates

what Rule 404(b) already says: “Evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action in conformity therewith.” The

Court contends that Crider’s brief referenced the reports dating back to 2004. Opinion, ¶ 22.

This reference, however, appeared in the second-to-last paragraph of the brief’s Discussion

section, where Crider opined that “[c]ertain of the conduct which we believe the State will no

doubt attempt [to] bring forth dates back to 2004. Most of it occurred circa 2004 to 2007.”

Concerning this evidence, Crider merely asserted: “Quite simply, the information is stale”

and “creates the real risk of swaying the jury into penalizing the Defendant for his past bad

character.”

¶50    In my view, this brief is inadequate under Eighteenth Judicial District Court. It is not

the prosecution’s responsibility to identify which of the State’s evidence the defense might

find objectionable under Rule 404(b). Indeed, identifying whether a particular piece of

evidence even constitutes “[e]vidence of other crimes, wrongs, or acts” is “a task which our

cases show is not always straightforward.” Eighteenth Jud. Dist. Ct., ¶ 45. Largely for this

reason, we put the onus on the defendant to identify specifically which evidence he finds

objectionable and to make “specific, legally supported objections” explaining why that

evidence should be excluded. Eighteenth Jud. Dist. Ct., ¶¶ 49, 72. The system does not

function properly when the defendant’s brief/motion provides only vague references to the

State’s evidence and asserts generalized objections that other-acts evidence cannot be used to

show action in conformity with character. Merely reciting the dangers of other-acts evidence

                                             24
proves nothing. We clearly contemplated in Eighteenth Judicial District Court something

more than the sort of generalized arguments Crider provided in this case.

¶51     But even assuming, for the sake of discussion, that Crider’s brief was sufficient in

identifying the police reports, I still do not agree with the Court that he preserved his present

arguments for our review. The State filed its response brief on January 17, 2012. In it, the

prosecutor referred to domestic disturbance calls to law enforcement from 2004 through

2007 involving Crider’s former girlfriend. The prosecutor also detailed calls to law

enforcement involving M.W. beginning in July 2010 and continuing into 2011. The

prosecutor listed several theoretical purposes for introducing this evidence: “to show that

Crider had a motive, intent, and plan to harm, control, and harass the victim, M.W., and that

her injuries were not a result of any accident or mistake that occurred on the date of the

offense.” The prosecutor, focusing primarily on the motive and plan theories, argued that

Crider had “a motive to harass and intimidate” M.W. in order to control her and that his

abuse of M.W. was “part of Crider’s common scheme, plan, and intent to control the women

in his life.”

¶52     Despite the briefing schedule set forth in the Omnibus Hearing Memorandum, Crider

did not file a reply brief. Since neither party had requested a hearing, the District Court

proceeded to issue its decision on February 1, 2012. The court excluded any police reports

involving other women, reasoning that such evidence “is more in the nature of demonstrating

a trait of bad character.” The court ruled, however, that the police reports involving M.W.

were probative of motive and absence of mistake or accident.



                                               25
¶53    Due to his failure to file a reply brief in the District Court, the first time Crider

presented an argument challenging the prosecutor’s theories for admitting the evidence of his

prior domestic abuse is in his opening brief on appeal. I disagree with the Court’s decision

to sanction this approach. Once the prosecutor has articulated a nonpropensity theory for

admitting the evidence, the defendant’s failure to present any counterargument forfeits a

claim of error (regarding that evidence) on appeal. Homer, ¶ 12; Lotter, ¶ 31; Stops, ¶ 33;

Kelm, ¶ 35; Lewis, ¶ 22. If, as the Court tacitly holds, the defendant need not respond to the

prosecutor’s brief with an analysis opposing the prosecutor’s proposed theory, then the trial

court will be left with a one-sided argument from the State, and the defendant will be able to

challenge the trial court’s decision with arguments presented for the first time on appeal. As

we have explained, it is fundamentally unfair to fault the trial court for failing to rule on an

argument it was never given the opportunity to consider. City of Missoula v. Moore, 2011

MT 61, ¶ 13, 360 Mont. 22, 251 P.3d 679. Had the District Court been presented with the

detailed arguments that Crider is now making, the court very well might have decided to

exclude the evidence, thereby eliminating any need for Crider to assert this on appeal as an

alleged error in his trial. Crider should not be permitted to fault the District Court for failing

to rule in his favor on arguments he never presented to that court.

¶54    In State v. Vukasin, 2003 MT 230, 317 Mont. 204, 75 P.3d 1284, we held that

generalized motions in limine which broadly object to any “reference, comment, allusion or

statement made to any crime, wrong or act pursuant to M.R.Evid. Rule 404(b)” are

insufficient to preserve a Rule 404(b) issue for appellate review. Vukasin, ¶¶ 35-38. The

trial court must be “alerted” to the specific testimony or evidence that the defendant finds

                                               26
objectionable and apprised of the defendant’s specific theory for excluding that testimony or

evidence. Vukasin, ¶¶ 35, 37. Our decision today undermines these requirements. The

Court effectively approves the use of standardized motions in limine which object in general

terms to the introduction of other-acts evidence. Conceivably, we have retreated from the

procedural advancements of Eighteenth Judicial District Court by once again requiring

prosecutors to divine which evidence the defendant finds objectionable under Rule 404(b)

and to specify a basis for admissibility. Furthermore, we have chosen to review a district

court’s evidentiary ruling based on arguments that were not presented to the district court in

the first instance. I agree with the State’s contentions in its appellate brief that Crider’s Rule

404(b) claim is not properly before us. I dissent from the Court’s procedural ruling allowing

Crider to pursue that claim on appeal. Opinion, ¶¶ 22-23.

                 Whether the State’s Nonpropensity Theories are Valid

¶55    Given that the Court has addressed the merits of Crider’s claim, I believe the Court

misuses theories of “motive” and “absence of mistake or accident” to hold that Crider’s

uncharged misconduct was admissible to prove the charged misconduct.

¶56    The State charged Crider with four offenses: sexual intercourse without consent,

partner or family member assault, criminal mischief (of which he was acquitted), and

tampering with witnesses and informants. In arguing that the evidence of Crider’s past

domestic abuse should be admitted, however, the State was unclear about which elements of

which offenses this evidence was offered to prove. Moreover, while the State argued that the

evidence would show motive and absence of mistake or accident, the State failed to explain

precisely how these purposes were probative of a fact in dispute. See State v. Ayers, 2003

                                               27
MT 114, ¶ 87, 315 Mont. 395, 68 P.3d 768. On appeal, the State posits that the evidence was

admissible to show that Crider intended to commit “injurious sex acts” and that M.W. did

not consent to those acts. The Court similarly focuses on “the sexual acts” and whether they

were consensual. Opinion, ¶¶ 26-27. Accordingly, I likewise address whether Crider’s

uncharged misconduct was relevant, under theories of motive and absence of mistake or

accident, in proving the sexual acts and whether M.W. consented to them.

¶57    Motive is rarely an element of a crime. It is, however, an intermediate, evidentiary

fact that can be used to establish an ultimate fact in the case. David P. Leonard, The New

Wigmore: Evidence of Other Misconduct and Similar Events § 8.1, 488 (Aspen 2009);

Edward J. Imwinkelried, Uncharged Misconduct Evidence vol. 1, § 3:15, 3-95 (rev. ed.,

Thomson Reuters/West 2009). There are two ways in which uncharged misconduct can be

used under a motive theory. In the first, the uncharged act supplies the motive for the

charged act. In a homicide prosecution, for example, evidence that the defendant was

involved in a prior theft may be relevant under a motive theory where, prior to her death, the

homicide victim learned of the defendant’s involvement in the theft and threatened to report

it to authorities. The theft and the victim’s knowledge of it furnish a motive for the

defendant to prevent the victim from revealing the theft, which supports the inference that

the person responsible for the victim’s death is the defendant. Leonard, Evidence of Other

Misconduct and Similar Events § 8.2, 491-92. Many other persons presumably had no

motive to murder the victim; thus, the fact that the defendant did have a motive for killing

the victim raises the probability that the defendant is the one who did so. Imwinkelried,

Uncharged Misconduct Evidence § 3:15, 3-97.

                                             28
¶58    Under the second method, the uncharged act does not provide the motive for the

charged act, but instead evidences the existence of a motive, such as a desire for revenge,

which explains both the uncharged act and the charged act; in other words, “the charged

crime can be understood as another expression of the feelings revealed in the [uncharged]

acts.” Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence vol. 1, § 4:32, 802

(3d ed., Thomson/West 2007); Imwinkelried, Uncharged Misconduct Evidence § 3:15, 3-98

to 3-99. We applied this theory in Eighteenth Judicial District Court, where the defendant

was charged with causing the death of her infant daughter. We held that evidence of the

defendant’s past hostility toward and abusive treatment of the infant was admissible to show

that the defendant was frustrated and angry and did not want her daughter and, therefore, that

the defendant had a motive to cause the infant’s death. Eighteenth Jud. Dist. Ct., ¶¶ 58-59.

¶59    The Court and the State purport to rely on this latter approach. The prosecutor’s brief

in the District Court explains that the State sought to introduce evidence of Crider’s prior

misconduct to show “that Crider made a habit of abusing, harassing, and stalking his partner”

in order “to get whatever he wants or to punish his partner for perceived infidelities.” The

State further explains in its brief on appeal that all of Crider’s abusive acts toward M.W.—

the prior uncharged acts and the presently charged acts—were the product of a single motive:

“to control M.W. by force when he was unhappy with her or wanted something from her.”

The State reasons that the prior acts are proof of this motive, from which the jury could infer

that Crider raped and assaulted M.W. on the night in question. The Court adopts this theory,

reasoning that Crider’s prior acts of violence and harassment establish a “motive of exerting

power and control” over M.W. through the use of force and intimidation, and that this motive

                                              29
inspired Crider to commit both the prior uncharged acts and the presently charged acts.

Opinion, ¶¶ 25-26.

¶60    In my view, the Court has erred for two reasons. First, “merely reciting an allowable

purpose is not sufficient if . . . that purpose is not an issue in dispute.” State v. Keys, 258

Mont. 311, 317, 852 P.2d 621, 625 (1993). In Keys, the defendant (Keys) was charged with

the offense of sexual intercourse without consent. There was no dispute that Keys had

knowingly engaged in sexual intercourse with the victim, N.B. The issue was whether N.B.

had consented. Keys, 258 Mont. at 314, 852 P.2d at 623. The State introduced evidence of

prior sexual misconduct by Keys to show that his sexual intercourse with N.B. had been

without her consent. Keys, 258 Mont. at 315-16, 852 P.2d at 624. The State relied on

theories of “motive and intent,” arguing that the prior misconduct was “probative of

determining whether Keys was concerned with the consent of victims of his sexually

aggressive behavior.” Keys, 258 Mont. at 316, 317, 852 P.2d at 624, 625. We explained,

however, that

       it is not Keys’ intent or motive which is the determinative factor in this case.
       Rather, it is the victim’s intent, and whether she consented to the act of
       intercourse, which is dispositive of whether a crime was committed. Keys
       clearly intended to have sexual intercourse with N.B., and even if he intended
       to do this forcibly and without her consent, this criminal intent would be
       irrelevant if N.B. consented.

Keys, 258 Mont. at 317, 852 P.2d at 625 (emphasis in original). We thus held that the

defendant’s motive or intent is not relevant where the only issue is whether the victim

consented to the sexual intercourse. Keys, 258 Mont. at 317-18, 852 P.2d at 625.




                                              30
¶61    That is the situation here. There was no dispute that Crider and M.W. had sexual

intercourse and that the sex was “rough.” M.W. admitted that she and Crider had engaged in

consensual rough sex on prior occasions. M.W. also stated that, on the night in question, she

told Crider “he could do whatever he wanted” to her. M.W. indicated, however, that their

sex that night was more violent than in the past and that she told Crider to stop, but he

refused to do so. Crider, on the other hand, maintained that M.W. consented to the sex. The

disputed issue, therefore, was M.W.’s consent, not Crider’s intent. Even if Crider had a

motive to punish or exert control over M.W. by having sex with her “forcibly and without

her consent, this criminal intent would be irrelevant if [M.W.] consented.” Keys, 258 Mont.

at 317, 852 P.2d at 625. Thus, Crider’s motive was irrelevant and the Court errs in affirming

the admission of the disputed evidence under that purpose.2

¶62    Second, aside from the evidence’s lack of relevance, the “motive” theory the Court

approves here is, in truth, a forbidden character-based propensity theory. “When prior bad


       2
          The Court’s attempts to distinguish Keys are unpersuasive. First, the Court observes that
Keys predates our decision in Eighteenth Judicial District Court. Opinion, ¶ 28. Yet, we did not
expressly, or even implicitly, overrule the foregoing holding of Keys in Eighteenth Judicial District
Court. Thus, the Court’s reason for noting the timing of these two decisions is unclear. Second, the
Court points out that Keys’ prior acts were with a different victim, whereas Crider’s prior acts were
with the same victim. Opinion, ¶ 28. That fact, however, was not the basis of our decision in Keys.
Whether his prior acts were with the same victim or a different victim, we explained that Keys’
intent or motive was simply irrelevant: “Keys clearly intended to have sexual intercourse with N.B.,
and even if he intended to do this forcibly and without her consent, this criminal intent would be
irrelevant if N.B. consented.” Keys, 258 Mont. at 317, 852 P.2d at 625. The Court, notably, does
not refute the principle that motive is irrelevant where the issue, as here, is one of consent. Finally,
although the Court’s analysis and holding under Issue 1 are premised on “the sexual acts,” the Court
posits near the end of its discussion that Crider’s “motive to control or harass M.W.” was also
relevant “to his motive to commit the offenses of PFMA and witness tampering.” Opinion, ¶ 28.
Significantly, the Court fails to support this statement with any sort of analysis. The Court does not
explain how Crider’s motive was logically relevant to prove the elements of PFMA and witness
tampering and how this could be accomplished without a forbidden propensity inference.

                                                  31
act evidence is offered to prove a motive for the crime, ‘courts must be on guard to prevent

the motive label from being used to smuggle forbidden evidence of propensity to the jury.’”

U.S. v. Varoudakis, 233 F.3d 113, 120 (1st Cir. 2000) (citing Charles Alan Wright &

Kenneth W. Graham, Jr., Federal Practice & Procedure vol. 22, § 5240 (1978)). Indeed,

“[i]t can be easy to confuse evidence of propensity with evidence of motive,” Harrison v.

U.S., 30 A.3d 169, 178 (D.C. 2011), and “[t]he more difficult it is to distinguish motive and

character, the greater the danger of jury misuse,” Leonard, Evidence of Other Misconduct

and Similar Events § 8.3, 504. Motive is a situationally specific emotion, whereas character

connotes an enduring general propensity. Imwinkelried, Uncharged Misconduct Evidence

§ 3:15, 3-96. “Character is thought to be a generalized tendency to act in a particular way,

caused by something internal to the actor that arises from that person’s moral being.”

Leonard, Evidence of Other Misconduct and Similar Events § 8.3, 493-94. In contrast,

“motive is more specific than character, and its existence in a given situation does not

depend on the person’s morality.” Leonard, Evidence of Other Misconduct and Similar

Events § 8.3, 496. Under the right circumstances, even nonviolent people can have a motive

to act violently, and honest people can have a motive to lie. “We assume that a motive might

exist because any person might possess one under those specific circumstances. The

tendency to have such a motive is simply human; it does not derive from a trait of character

specific to the person involved in the trial.” Leonard, Evidence of Other Misconduct and

Similar Events § 8.3, 496 (emphases in original).

¶63    The Court and the State have lost sight of this distinction. Saying that Crider has a

“habit of abusing, harassing, and stalking” the women in his life, or that he has a “motive of

                                             32
exerting power and control” over M.W. through force, is just another way of saying

that Crider has a “generalized tendency” or “enduring general propensity” to behave

abusively toward women, and that he acts in conformity with this disposition. Having a

“motive” to exert power and control through violence is indistinguishable from having a

violent and controlling character.          Neither the Court nor the State identifies a

situationally specific basis for Crider’s “motive”; rather, the Court and the State simply view

Crider as someone who has a propensity—which the Court and the State re-label as

“motive”—to act abusively toward his partner as a means of controlling her, as evidenced by

his past conduct. Applying the Court’s analysis to other contexts, a defendant’s prior drug

sales could be introduced to establish a “motive” to earn money by selling drugs; a

defendant’s prior break-ins could be introduced to establish a “motive” to acquire jewelry by

burglarizing houses; and a defendant’s prior arsons could be introduced to establish a

“motive” to ease financial burdens by burning property and collecting the insurance

proceeds. Realistically, what such evidence actually shows is that the defendant is a drug

dealer, a burglar, or an arsonist, respectively. The history of prior misconduct establishes

that each of these defendants has a predisposition, or is the type of person, to employ

wrongful or criminal acts to achieve his aims. Permitting “motive” to be used in this way

undermines Rule 404(b)’s prohibition on showing that a person acted in conformity with his

character.3


       3
         “A few states have adopted a specific rule to allow evidence of past acts of domestic
violence, by the same defendant against the same victim, to be admitted in prosecutions involving
domestic violence without worrying about the purpose for the evidence. In other words, a true
exception to the propensity rule applies, and a defendant is not entitled to a limiting instruction.”

                                                 33
¶64    Indeed, the defendant in Varoudakis was charged with arson of his restaurant, and the

prosecution introduced evidence that the defendant had also committed arson of his car. The

theory was that the defendant had a “motive” to commit arsons in order to alleviate financial

burdens by collecting insurance proceeds, and thus “[his] commission of the car fire arson in

response to financial stress makes it more likely that he committed the restaurant arson in

response to financial stress.” Varoudakis, 233 F.3d at 120. The court rejected this as an

improper propensity inference. Varoudakis, 233 F.3d at 120.

¶65    Likewise, in State v. Brown, 242 Mont. 506, 791 P.2d 1384 (1990), the defendant was

charged with felony assault after striking and attempting to choke an officer who was in the

process of placing the defendant under arrest. The State introduced evidence of prior

instances in which the defendant had been verbally and physically abusive when police

officers attempted to restrain or arrest him. The State claimed this evidence was admissible

“for the purpose of proving defendant’s motive and intent with respect to his conduct at issue

in the proceedings.” Brown, 242 Mont. at 509, 791 P.2d at 1386. Evidently, the State’s

theory was that the defendant had a “motive and intent” to resist any attempts to restrain him

by behaving abusively toward the officer—the mirror image of Crider’s so-called “motive”

to exert power and control over M.W. by abusing and harassing her. We held that admitting

the evidence under this theory was error because the defendant’s acts in the charged and




Kenneth S. Broun, McCormick on Evidence vol. 1, § 190, 1042 (7th ed., Thomson Reuters 2013)
(footnote omitted). Montana does not have such a rule, although today’s decision effectively creates
one through the expedient of re-labeling Crider’s propensity for domestic violence and intimidation
as a “motive.”

                                                34
uncharged instances were “spontaneous acts dictated by his character and the situation at

hand.” Brown, 242 Mont. at 510, 791 P.2d at 1386.

¶66    In the present case, the testimony about Crider’s prior misconduct does not establish

that he had a motive to have nonconsensual sexual intercourse with M.W. It does establish,

however, that Crider had a propensity to behave in a physically violent manner when he and

M.W. had disputes regarding their relationship. It is improper propensity reasoning to say

that Crider’s acts were the result of a “motive” to control M.W. through violence. I thus

conclude that the “motive” theory argued by the State and adopted by the Court is not only

irrelevant under Keys, 258 Mont. at 317-18, 852 P.2d at 625, but also violative of Rule

404(b)’s bar on character-based propensity inferences.

¶67    I also disagree with the Court’s reliance on an absence of mistake or accident theory.

Opinion, ¶ 27. “‘Absence of mistake or accident’ is generally synonymous with intent.

Courts tend to use the phrase ‘absence of mistake or accident’ in cases in which the party

charged with wrongdoing asserts that the harm was caused inadvertently—without the

requisite intent.” Leonard, Evidence of Other Misconduct and Similar Events § 7.2.2, 429.

In other words, the defendant concedes that the charged act occurred but denies a criminal

intent by claiming innocent mistake. Uncharged misconduct may be admissible in this

situation to negate mistake. U.S. v. Kuipers, 49 F.3d 1254, 1258 (7th Cir. 1995). For

example, if the defendant admits that the bookkeeping entry in question is erroneous but

testifies that the entry was an unknowing mistake, proof of other incorrect entries in the same

set of books would be logically relevant to rebut the claim of mistake. Imwinkelried,

Uncharged Misconduct Evidence § 5:33, 99. This theory avoids the forbidden propensity

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inference by focusing on the probability of events, not the tendency to act in accord with a

disposition. Mueller & Kirkpatrick, Federal Evidence § 4:34, 829-30; Kenneth S. Broun,

McCormick on Evidence vol. 1, § 190, 1039-40 (7th ed., Thomson Reuters 2013).

¶68    Again, “merely reciting an allowable purpose [under Rule 404(b)] is not sufficient if

the evidence does not further that purpose or that purpose is not an issue in dispute.” Keys,

258 Mont. at 317, 852 P.2d at 625; accord State v. Ayers, 2003 MT 114, ¶ 87, 315 Mont.

395, 68 P.3d 768; see also State v. Sweeney, 2000 MT 74, ¶ 24, 299 Mont. 111, 999 P.2d 296

(evidence of other crimes is admissible to prove intent only if intent is “a material issue”).

Hence, whether an absence of mistake or accident theory is valid depends on the specific

facts of the case—particularly, whether the defendant has asserted or implied that the

wrongful act was the product of a mistake or accident. For instance, we approved the

theory’s use in Eighteenth Judicial District Court, where the defendant had suggested to

authorities that her infant daughter’s death was accidental. We held that the State could

introduce evidence of the defendant’s prior mistreatment of the infant to rebut her claim of

accident. Eighteenth Jud. Dist. Ct., ¶¶ 58, 61, 64, 65.

¶69    In the present case, Crider never claimed that he accidentally raped and assaulted

M.W. He instead claimed that their sexual encounter, although violent, was consensual. The

Court’s theory that Crider’s behavior on other occasions was necessary to disprove that he

accidentally exceeded M.W.’s consent on the charged occasion, Opinion, ¶ 27, is logically

flawed. First, to commit the offense of sexual intercourse without consent, the person must

“knowingly ha[ve] sexual intercourse without consent with another person.” Section

45-5-503(1), MCA. If Crider knew that M.W. had withdrawn her consent to the sex, then he

                                             36
could not claim that he “accidentally” raped her. Conversely, if Crider did not know that

M.W. had withdrawn her consent, then he did not “knowingly ha[ve] sexual intercourse

without consent.” Second, the prior instances of misconduct cited by the Court—making

constant phone calls to M.W., lurking outside her place of residence, breaking down her

door, and preventing her from calling the police, Opinion, ¶ 26—are not probative of the

issues in dispute, namely, (1) whether M.W. withdrew her consent to the sex on the evening

of July 8, 2011, and (2) whether Crider knew that M.W. had withdrawn her consent to the

sex that evening. None of the prior instances of misconduct involved sexual relations

between Crider and M.W., and the evidence sheds no light on what M.W. intended, and what

Crider knew, on the night in question. The evidence was simply not relevant to the issues at

trial.

¶70      On the other hand, the evidence was highly prejudicial. We have recognized the

dangers of uncharged misconduct evidence in numerous cases. State v. Derbyshire, 2009

MT 27, ¶¶ 21-22, 51, 349 Mont. 114, 201 P.3d 811; State v. Sage, 2010 MT 156, ¶¶ 36-37,

357 Mont. 99, 235 P.3d 1284; State v. Rogers, 2013 MT 221, ¶¶ 31-32, 371 Mont. 239, 306

P.3d 348. Generally, such evidence must be excluded because “prior acts or crimes are

highly prejudicial to the defendant, and usually irrelevant for purposes of the charged crime.”

State v. Croteau, 248 Mont. 403, 407, 812 P.2d 1251, 1253 (1991); accord State v. Ray, 267

Mont. 128, 133-34, 882 P.2d 1013, 1016 (1994). Evidence of a defendant’s prior acts or

uncharged misconduct creates the risk that the jury will penalize the defendant simply for his

past bad character, Croteau, 248 Mont. at 407-08, 812 P.2d at 1253; Ray, 267 Mont. at 134,



                                              37
882 P.2d at 1016, or prejudge him and deny him a fair opportunity to defend against the

particular crime charged, State v. Gowan, 2000 MT 277, ¶ 19, 302 Mont. 127, 13 P.3d 376.

¶71    As discussed, the evidence of Crider’s prior instances of abuse and harassment had

little, if any, probative value to the issues at his trial. In contrast, the evidence created a

substantial risk of swaying the jury to penalize Crider for his violent character or history of

bad behavior. The prosecution used the evidence to portray Crider as a stalker and domestic

abuser—a man who, as the prosecutor put it, “made a habit of abusing, harassing, and

stalking his partner” in order “to get whatever he wants or to punish his partner for perceived

infidelities.” In Sage, we agreed with the defendant that evidence of drug use at his house

“likely painted him as either a person who gave ‘pot parties’ at his house, or was possibly a

drug dealer.” Sage, ¶ 30. We concluded that, qualitatively, the erroneous admission of this

evidence was not harmless. Sage, ¶ 30. In my view, “the qualitative impact” of Crider’s

history of violence and intimidation, Derbyshire, ¶ 54, was even more prejudicial than the

evidence of drug use in Sage. There is a “reasonable possibility” that this evidence

contributed to Crider’s conviction, and thus the admission of the evidence was not harmless.

Sage, ¶ 30; see also Rogers, ¶ 44 (reaching the same conclusion where the State presented

“highly inflammatory” evidence that Rogers had previously been convicted of rape and

assault, but had gotten those convictions set aside; such evidence, we explained, “invited an

opportunity for the jury to make sure Rogers would be punished when it deliberated on [the]

crimes charged”).




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                                        Conclusion

¶72    In sum, I conclude that Crider did not properly preserve his Rule 404(b) claim for

appellate review. However, because the Court has nevertheless reached the merits of that

claim, I conclude that the evidence of Crider’s uncharged misconduct should not have been

admitted under motive or absence of mistake or accident theories, and that the erroneous

admission of this evidence was not harmless. Accordingly, under our precedents, Crider is

entitled to a new trial. Derbyshire, ¶ 55; Sage, ¶ 43; Rogers, ¶ 46.

¶73    I dissent from the Court’s contrary holdings.


                                                  /S/ LAURIE McKINNON




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