                                                                                         December 17 2007


                                            05-276

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2007 MT 340



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

COBY ROBERT McOMBER,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Third Judicial District,
                      In and For the County of Powell, Cause No. DC 2004-15
                      Honorable Ted L. Mizner, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Jim Wheelis, Chief Appellate Defender, Kristina Neal, Assistant Appellate
                      Defender, Helena, Montana

               For Appellee:

                      Hon. Mike McGrath, Montana Attorney General, Pamela P. Collins
                      Assistant Attorney General, Helena, Montana

                      Christopher G. Miller, Powell County Attorney, Deer Lodge, Montana



                                                     Submitted on Briefs: June 1, 2006

                                                                Decided: December 17, 2007


Filed:

                      __________________________________________
                                        Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1        Appellant Coby Robert McOmber appeals from his conviction in the District

Court for the Third Judicial District, Powell County, of one count of felony solicitation to

commit the offense of issuing a bad check. McOmber’s appeal concerns the District

Court’s decision allowing the State to introduce, as prior consistent statements, a written

statement and a police-interview transcript of a testifying witness, Bill Peltier.      We

affirm.

¶2        The issues on appeal are as follows:

          1.    Were Peltier’s written statement and his statements reflected in the police-

interview transcript admissible as prior consistent statements under M. R. Evid.

801(d)(1)(B)?

          2.    If the statements were inadmissible, was their admission by the District

Court harmless error?

                    FACTUAL AND PROCEDURAL BACKGROUND

¶3        On November 4, 2003, the State charged McOmber with misdemeanor theft.

McOmber was arrested on November 26, 2003, and pleaded not guilty, but was unable to

post bond. McOmber was incarcerated in the Powell County jail on a total bond set at

approximately $1,600, which included bonds from Cascade County and Powell County.

¶4        On or about November 30, 2003, McOmber called his friend Bill Peltier.

According to Peltier’s testimony at trial, McOmber phoned him from the Powell County

jail around 11:30 a.m. and asked him to contact a number of bail bondsmen. Peltier

stated that the bondsmen he called all refused to post bond for McOmber. Peltier testified


                                                 2
that McOmber later called back to discuss other ways of raising money. Peltier related

that McOmber suggested that Peltier post bond for him, and that if Peltier did so, two of

McOmber’s friends, Steve Campbell and Doug Johnson, would loan McOmber money to

reimburse Peltier for the bail cost. Peltier testified that he then went down to the police

station to determine McOmber’s bail amount. When McOmber called him back, Peltier

informed McOmber that he only had about $400 in his bank account. Peltier stated that

McOmber then informed him that he would have the money in Peltier’s account by the

next morning, as Campbell and Johnson would loan the money.

¶5     Peltier wrote two checks to cover McOmber’s bail—one to Powell County Justice

of the Peace Terry J. McGillis for $1,390, and the other to Cascade County for

approximately $270.     McOmber was released from the Powell County jail.            Peltier

testified that he drove McOmber back to Peltier’s house, so that McOmber could attempt

to contact Campbell or Johnson. However, McOmber failed to collect the money. Peltier

drove him to Missoula that night so McOmber could retrieve his truck. Peltier stated that

he asked McOmber for the money several times, but McOmber ultimately never repaid

him.

¶6     The $1,390 check Peltier wrote to Justice of the Peace McGillis bounced, the State

charged Peltier with one felony count of issuing bad checks on December 2, 2003, and

Judge McGillis issued a warrant for Peltier’s arrest. Peltier was later arrested in Missoula

on unrelated charges, and transported back to Powell County. While incarcerated in

Powell County, Peltier provided a written statement on February 18, 2004, describing the

events of November 30, 2003. The following day, Captain Patrick W. George with the


                                             3
Powell County Sheriff’s Office interviewed Peltier regarding the bad check. The State

dropped Peltier’s felony charge to a misdemeanor, and he subsequently pleaded guilty to

the misdemeanor count.

¶7     The State charged McOmber by information on March 25, 2004, with one count of

felony solicitation to commit the offense of issuing a bad check, in violation of

§§ 45-4-101 and 45-6-316, MCA. McOmber pleaded not guilty on April 22, 2004. The

matter went to trial on December 2, 2004, and the court heard testimony from five

witnesses, including Peltier, Campbell, Johnson, and Captain George. The State sought

to introduce, as exhibits, both Peltier’s February 18, 2004 written statement, as well as a

transcript of the February 19, 2004 police interview. Defense counsel objected to the

introduction of the exhibits on the ground they violated the “best evidence rule” saying,

“Mr. Pelletier [sic] has already testified and that is in fact the best evidence. His written

statement from six months before is not the best evidence of what his testimony is on this

matter, so we would object to its being offered for the purposes of, purportedly being the

truth.” Counsel then explained that, “I don’t think [the State] get[s] to gild the lily at this

point by trying to bolster that, [Peltier’s] credibility, by these statements that he gave to

law enforcement nearly a year ago . . . as opposed to his testimony yesterday here in open

court.” After hearing this, the trial judge stated that he assumed the State offered the

statements contained in the written statement as prior consistent statements, which the

State then confirmed. The Court overruled defense counsel’s objection and admitted the

written statement as an exhibit under M. R. Evid. 801(d)(1)(B). The same occurred with

respect to the transcript.


                                              4
¶8     In his defense, McOmber called one witness, his former cellmate Mike Corrigan,

who testified that there was no indication to him that McOmber was talking to Peltier

about writing a bad check. On cross-examination, however, Corrigan conceded that he

was unable to hear any of the conversations between McOmber and Peltier regarding

McOmber’s bail.

¶9     The jury found McOmber guilty of one count of felony solicitation to commit the

offense of issuing a bad check on December 3, 2004. The court entered its judgment on

February 10, 2005, sentencing McOmber to seven years at the Department of Corrections

with two years suspended. This appeal followed.

                              STANDARD OF REVIEW

¶10    We generally review a district court’s evidentiary rulings for an abuse of

discretion. State v. Gomez, 2007 MT 111, ¶ 18, 337 Mont. 219, ¶ 18, 158 P.3d 442, ¶ 18.

A district court abuses its discretion if it acts arbitrarily without the employment of

conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.

State v. Matz, 2006 MT 348, ¶ 34, 335 Mont. 201, ¶ 34, 150 P.3d 367, ¶ 34.

“Notwithstanding this deferential standard, however, judicial discretion must be guided

by the rules and principles of law; thus, our standard of review is plenary to the extent

that a discretionary ruling is based on a conclusion of law. In such circumstance, we

must determine whether the court correctly interpreted the law.” State v. Price, 2006 MT

79, ¶ 17, 331 Mont. 502, ¶ 17, 134 P.3d 45, ¶ 17.

                                     DISCUSSION




                                            5
¶11   As a threshold matter, the State, citing State v. Martinez, 2003 MT 65, ¶ 17, 314

Mont. 434, ¶ 17, 67 P.3d 207, ¶ 17, contends that this Court should not consider

McOmber’s claim on appeal because he allegedly changed the legal theory underlying his

objection to the introduction of Peltier’s written statement and the interview transcript.

We reject this contention, as the record shows that, although defense counsel initially

asserted the Best Evidence Rule, he then explained that the State was allegedly

attempting to bolster its witness’s credibility with prior consistent statements.       The

District Court then inquired whether the State was offering the exhibit as a prior

consistent statement, and the State confirmed that it was. The court then overruled

McOmber’s objection and admitted both exhibits as prior consistent statements.

McOmber’s appeal is based squarely on that ruling. Accordingly, we will proceed to

consider McOmber’s claim.

¶12   Issue One. Were Peltier’s written statement and his statements reflected in the
      police-interview transcript admissible as prior consistent statements under
      M. R. Evid. 801(d)(1)(B)?

¶13   “Hearsay is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

M. R. Evid. 801(c).     As a general rule, hearsay statements are not admissible.

M. R. Evid. 802. However, under M. R. Evid. 801(d)(1)(B):

      A statement is not hearsay if . . . [t]he declarant testifies at the trial or
      hearing and is subject to cross-examination concerning the statement, and
      the statement is . . . consistent with the declarant's testimony and is offered
      to rebut an express or implied charge against the declarant of subsequent
      fabrication, improper influence or motive . . . . [Paragraph breaks omitted.]




                                            6
Under the rule, there are four requirements that must be met for a statement to be

admissible as a prior consistent statement: “(1) the declarant must testify at trial and (2)

be subject to cross-examination concerning her statement, and (3) the statements to which

the witness testifies must be consistent with the declarant’s testimony, and (4) the

statement must rebut an express or implied charge of subsequent fabrication, improper

influence or motive.” State v. Teters, 2004 MT 137, ¶ 25, 321 Mont. 379, ¶ 25, 91 P.3d

559, ¶ 25.

¶14    McOmber argues that Peltier’s statements to Captain George did not constitute

prior consistent statements as defined by M. R. Evid. 801(d)(1)(B).                  McOmber

specifically contends that the State has failed to establish that the statements were made

prior to the time the alleged motive to fabricate arose; thus, according to McOmber, the

exhibits were inadmissible hearsay and should have been excluded at trial.1

¶15    We have previously held that the prior consistent statement rule “only applies

when the declarant’s in-court testimony has been impeached by another party’s

allegations of subsequent fabrication, improper influence, or motive.” State v. Lunstad,

259 Mont. 512, 515, 857 P.2d 723, 725 (1993). In addition, to qualify as a prior

consistent statement under M. R. Evid. 801(d)(1)(B), the statement must have been made

before the alleged motive to fabricate arose. Teters, ¶ 27; State v. Veis, 1998 MT 162,


1
   We note here that the State has failed to address whether or not the statements were properly
admitted as prior consistent statements, choosing instead to assume “arguendo” that the
statements were inadmissible, and focus on whether their admission was harmless error. This is
an improper approach to harmless error analysis. Before reaching the question of harmless error,
it must be determined whether an error occurred. See State v. Van Kirk, 2001 MT 184, ¶ 42, 306
Mont. 215, ¶ 42, 32 P.3d 735, ¶ 42.


                                               7
¶ 24, 289 Mont. 450, ¶ 24, 962 P.2d 1153, ¶ 24 (citing Tome v. U.S., 513 U.S. 150, 167,

115 S. Ct. 696, 705 (1995)).

¶16    Peltier, the declarant, testified at trial and was subject to cross-examination. Both

Peltier’s written statement and the statements he made in the interview with Captain

George were consistent with his trial testimony. In addition, as to the requirement that

the statements be offered to rebut an express or implied charge of subsequent fabrication,

improper influence or motive, the State introduced the exhibits after McOmber called

Peltier’s credibility into question.   On cross-examination of Peltier, defense counsel

challenged Peltier’s testimony by questioning his motives in making the statements to

Captain George. Defense counsel repeatedly questioned whether Peltier’s motive in

making the statements to Captain George was in order to “pin” the charge on McOmber

so that Peltier could get his felony issuing a bad check charge reduced to a misdemeanor.

The exhibits were later introduced by the State, as part of its case-in-chief, through the

testimony of Captain George, who testified after Peltier.

¶17    Crucially, as to the requirement that the statements were made prior to the time the

alleged motive to fabricate arose, McOmber claims this requirement was not met and,

therefore, the exhibits’ admission was in error. The State charged Peltier with the felony

count of issuing a bad check on December 2, 2003, and he was arrested in February 2004

on that charge. While incarcerated in the Powell County jail, Peltier made his written

statement on February 18, 2004, and the interview with Captain George took place the

following day. McOmber maintains that Peltier’s motive to fabricate existed prior to the

time he made his statements to Captain George—i.e., the motive arose when Peltier was


                                             8
arrested. We agree with McOmber’s assertion. Given that Peltier’s prior consistent

statements were made after he had been charged and jailed on the felony charge, it is

clear that the alleged motive to fabricate arose before he made those statements.

¶18    We hold that the District Court erred in admitting the exhibits as prior consistent

statements under M. R. Evid. 801(d)(1)(B), given that the State failed to show that the

statements were made before the alleged motive to fabricate arose.

¶19    Issue Two. If the statements were inadmissible, was their admission by the
       District Court harmless error?

¶20    McOmber contends that the District Court’s erroneous admission of Peltier’s

statements under M. R. Evid. 801(d)(1)(B) prejudiced McOmber and prevented him from

receiving a fair trial. McOmber argues that such error warrants reversal of his conviction.

The State counters that the exhibits’ admission was harmless error.

¶21    Under § 46-20-701(1), MCA, “[a] cause may not be reversed by reason of any

error committed by the trial court against the convicted person unless the record shows

that the error was prejudicial.” In State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32

P.3d 735, we articulated our analytical framework for determining whether an “alleged

error prejudiced the criminal defendant’s right to a fair trial and is therefore reversible.”

Van Kirk, ¶ 37. The first step in the Van Kirk analysis is determining whether the

claimed error is categorized as structural error or trial error. Van Kirk, ¶ 37.

¶22    Structural error is that type of error which affects the framework within which the

trial proceeds, rather than simply an error in the trial process itself. Van Kirk, ¶ 38 (citing

Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265 (1991)). Structural



                                              9
error is “typically of constitutional dimensions, precedes the trial, and undermines the

fairness of the entire trial proceeding.” Van Kirk, ¶ 38. Examples of structural error

“include errors in the jury selection process, total deprivation of the right to counsel, and

lack of an impartial trial judge.” State v. Francis, 2001 MT 233, ¶ 23, 307 Mont. 12, ¶

23, 36 P.3d 390, ¶ 23. Furthermore, structural error is presumptively prejudicial, is not

subject to harmless error review, and is automatically reversible. Van Kirk, ¶¶ 38-39.

¶23    Trial error, by contrast, is that type of error that typically occurs during the

presentation of a case to the jury.      Van Kirk, ¶ 40.      Trial error can be reviewed

qualitatively for prejudice relative to other evidence introduced at trial. Van Kirk, ¶ 40.

Trial error is not presumptively prejudicial, is not automatically reversible, and is subject

to harmless error review. Van Kirk, ¶ 40.

¶24    Here, we are dealing with what is clearly trial error.         The error—admitting

Peltier’s prior consistent statements—arose during the presentation of the case to the jury

and is not the type of error that undermines the fairness of the entire trial proceeding. As

the admission of Peltier’s statements was trial error, we advance to the second step of the

Van Kirk analysis, which involves determining whether the error was harmless under the

circumstances. Van Kirk, ¶ 41. We note that once the defendant has established that a

trial error occurred and has alleged prejudice resulting from the error, the burden then

shifts to the State to demonstrate that the error was harmless. State v. Peplow, 2001 MT

253, ¶ 47, 307 Mont. 172, ¶ 47, 36 P.3d 922, ¶ 47; Van Kirk, ¶ 42.

¶25    For the reasons discussed in Issue One, McOmber has established that Peltier’s

prior consistent statements were erroneously admitted. McOmber has also alleged that


                                             10
the admission of the statements prejudiced him, arguing that “[t]he jury’s ability to

review [Peltier’s] written and taped statements as exhibits, as compared to relying on

their memory as to his sketchy and inconsistent trial testimony, prejudiced [McOmber]

and denied him the right to a fair trial.” McOmber’s contentions of prejudice have

“arguable merit.”     See Peplow, ¶ 48.      Accordingly, the burden is on the State to

demonstrate that no reasonable possibility exists that the erroneously admitted evidence

might have contributed to McOmber’s conviction. See Van Kirk, ¶ 42.

¶26    We utilize the cumulative evidence test in determining whether trial error was

harmless. Peplow, ¶ 47; Van Kirk, ¶ 43. The first question under this test is whether the

tainted evidence was admitted to prove an element of the offense. Peplow, ¶ 49. Next, if

the tainted evidence was admitted to prove an element of the offense, the State must (1)

direct us to admissible evidence that proves the same facts as the tainted evidence, and

(2) 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.

Peplow, ¶ 49; see also Van Kirk, ¶¶ 44-45. But if the tainted evidence was not admitted

to prove an element of the crime, then the admission of the evidence will be deemed

harmless only if the State demonstrates that the quality of the tainted evidence was such

that there was no reasonable possibility that its admission might have contributed to the

defendant's conviction. Peplow, ¶¶ 49, 51; Van Kirk, ¶¶ 46, 47.2


2
  Although the State asserts that the admission of Peltier’s statements was harmless error, the
State’s corresponding analysis fails to track the analytical framework set out in Van Kirk and
described above. Rather, the State presents a haphazard collection of arguments which, although
they do bear on the harmless-error question, are entirely disconnected from the structured


                                              11
¶27    Accordingly, we must first determine whether Peltier’s prior consistent statements

were admitted to prove an element of the crime of solicitation to commit the offense of

issuing a bad check.     To convict McOmber of this offense, the jury needed to be

presented with evidence to prove beyond a reasonable doubt that, with the purpose that

the offense of issuing a bad check be committed, McOmber commanded, encouraged, or

facilitated Peltier in issuing or delivering a check or other order upon a real or fictitious

depository for the payment of money knowing that it would not be paid by the

depository.   See §§ 45-4-101 and 45-6-316, MCA.             Of particular relevance here,

McOmber argues that the State had to prove both that he talked Peltier into writing the

bad check and that he knew there were not sufficient funds in Peltier’s checking account.

¶28    A review of Peltier’s February statements is necessary at this point.           In the

February 18, 2004 written statement, Peltier wrote that McOmber called him and “told

me his situation and asked me to call some bondsman [sic].” After all the bondsmen

refused, Peltier wrote that McOmber “said he talked [to] Steve Cambell [sic] and Doug

Johnson [“DJ”] and they were loaning him some cash. He told me on the phone I could

write him a check and we would go get the cash from DJ, and Steve.”

¶29    The February 19, 2004 interview between Captain George (“PG”) and Peltier

(“WP”) included the following discussion:

       PG: Um, in your own words would you go ahead and tell me how this
           situation played out.
       WP: Um, Sunday, I believe the first call was around 11:30 in the
           morning. He called me up and let me know he was in jail here. So,

inquiries mandated by Van Kirk. To facilitate proper analysis in future cases, we admonish all
parties to comply with the foregoing step-by-step approach.


                                             12
    we talked for a few minutes and he said he was going to call some
    people and see if he could get out. About twenty minutes later he
    called me back and ask me to do him a favor, call some bondsman.
    So I told him that I would. He told me he’d call me back in an hour.
    I called every bondsman that I could, that was listed er and every
    one of them said no. That his charges were too much or that he’d
    lied to them before and never or failed to appear a couple of different
    times. So he called me back and I told him the news and he said he
    was trying to call his mom and various other people. And he ask me
    if there was anything I could do about it and I told him no. And
    several calls later he ask me if I could bail him out. The
    conversation went that his, if a bondsman were to bail him out it was
    a certain amount, but if I were to bail him out it would be a certain
    amount. And I told him that I didn’t have the means or the money to
    do it. So he called Ski [sic] Campbell and Doug Johnson to borrow
    some money for [sic] them.
PG: This is what he told you?
WP: This is what he said, this is what he said and he called me back and
    he told me that he had some cash and if I bailed him out. If I wrote a
    check for him, he would cover the checks. Twenty. He said twenty
    minutes after I bailed him out I’d have the cash. And so I came
    down. I told him several times that you know its [sic] Christmas. I
    don’t have the money to write that much of, that much. I think
    maybe I only had, if I remember right a little over $800.00. And I’d
    already went Christmas shopping and spent almost half of that. So, I
    told him it was very important that I have that money. I just opened
    that account with First Security. I don’t think I had bounced any
    checks. Maybe I had went over my account just once but it was no
    big deal and I emphasized that several times on the phone. I mean
    he called me maybe three or four times. I kind-a finally kind-a gave
    in and told him I’d do it. As long as he was positive he had the cash.
    And he told me every time that he was positive, that he had the cash
    to give it to me. So I came down wrote the check and, two checks,
    one for $1390.00 and the other one was for almost $400.00, $300.00
    and something. I believe that one cleared and the other one, the one
    I’m getting charged for is the $1390.00. And so after I bailed him
    out he wanted to go somewhere and I was like no we can go right to
    my house and use the phone. We went to my house he called
    Steve’s house supposable [sic]. I mean I didn’t stand over him and
    make sure he dialed the number or anything. But he wasn’t home
    and then he called DJ and I suppose he wasn’t home either. So we
    were going to get the money in the morning. I believe it was like
    7:30 or 8:00 about that time. And he, then I could let him borrow


                                    13
             my truck and I gave him a ride to Missoula and that was the last time
             I seen him.

¶30   Peltier’s written statement and the interview transcript demonstrate that the

inadmissible evidence did go to prove an element of the crime. Peltier’s statements tend

to prove that McOmber was aware that Peltier had insufficient funds in his checking

account to cover McOmber’s bail and that McOmber nonetheless encouraged Peltier to

write the check, knowing that it would not be paid by Peltier’s bank. Therefore, the State

must (1) direct us to admissible evidence that proves the same facts as Peltier’s

inadmissible prior consistent statements, and (2) also demonstrate that the quality of

Peltier’s statements was such that there was no reasonable possibility that they might

have contributed to McOmber’s conviction.

¶31   With respect to the first requirement, the State directs us to the trial testimony of

Peltier, Campbell, and Johnson.     Peltier testified that McOmber asked him to call

bondsmen on McOmber’s behalf. None were willing to post bond for McOmber. Peltier

then stated that McOmber called him back to discuss other means of obtaining bail

money, including Peltier’s writing a check for McOmber’s bail. Peltier testified that

McOmber “told me that he had talked to Steve Campbell and Doug Johnson, and they

were going to lend him some money, that if I wrote the check, and he got out, that he

could give me the cash and I could deposit it in my account.”

¶32   Peltier then related that he went to the police station to determine McOmber’s bail

amount. Peltier said he then got in touch with McOmber and informed him that he did

not think he had enough in his bank account. Peltier testified that bail was set at about



                                            14
$1,600 and that he had just a little over $400 in his account. Peltier testified that he

informed McOmber that he only had about $400 in the account and stated that McOmber

again told him that Campbell or Johnson would lend McOmber the money and Peltier

would have it in his account before the next morning. Peltier then testified that he picked

McOmber up from jail, but McOmber never reimbursed him. Peltier reiterated that

McOmber knew Peltier did not have enough in his account to cover the check.

¶33      Campbell testified that McOmber called and asked Campbell to help bail him out

of jail, but Campbell told him that he did not have the money. Campbell stated that

McOmber never talked to him about Peltier’s putting up the bail money, and that he

never agreed he would give money to Peltier. On cross-examination, Campbell stated

McOmber never called to ask for money to give to Peltier. Johnson likewise testified that

McOmber called him to enquire about bail money, but Johnson told McOmber he would

not be able to help. Johnson also stated that McOmber never talked with him about

giving money to Peltier and never agreed to give Peltier money to bail McOmber out.

¶34      The State asserts that Peltier’s, Campbell’s, and Johnson’s testimony “established

that McOmber encouraged Peltier to write the check for his bail even though McOmber

knew that the check was bad and that it would not be made good before it cleared the

bank.”     We agree that Peltier’s trial testimony, augmented by that of Johnson and

Campbell, largely comports with and mirrors the statements Peltier made on February 18

and 19, 2004. Crucially, Peltier testified that he informed McOmber that he did not have

sufficient funds in his bank account to cover the amount of bail. Peltier also testified that

McOmber informed him that Campbell and Johnson would lend McOmber the money


                                             15
and Peltier would have it in his bank account by morning. This testimony serves to prove

the same facts as the tainted evidence proved—that McOmber knew Peltier did not have

sufficient funds in his checking account but nonetheless encouraged him to write the

check. For these reasons, we conclude that admissible evidence proved the same facts as

Peltier’s inadmissible prior consistent statements.

¶35    Lastly, the State is also required to show that, qualitatively, by comparison,

Peltier’s inadmissible prior consistent statements were such that there was no reasonable

possibility they might have contributed to McOmber’s conviction. Van Kirk, ¶¶ 44, 47;

Peplow, ¶ 49. The State argues that the admission of the prior consistent statements had

a minimal effect on the trial because the statements did no more than repeat admissible

in-court testimony.   We agree.     Peltier’s testimony and his earlier statements were

consistent and tended to prove the same facts. Furthermore, as compared to Peltier’s trial

testimony, there is nothing about the content of his inadmissible prior consistent

statements that was more compelling or deserving of greater evidentiary weight. His

earlier statements also were not inflammatory in any way that would improperly

prejudice McOmber in the eyes of the jury.

¶36    However, McOmber claims that “[t]he jury’s ability to review [Peltier’s] written

and taped statements as exhibits, as compared to relying on their memory as to his

sketchy and inconsistent trial testimony, prejudiced [McOmber] and denied him the right

to a fair trial.” There are two problems with McOmber’s assertion. First, the “sketchy

and inconsistent” trial testimony McOmber complains about related not to whether

McOmber knew that there were insufficient funds in Peltier’s bank account but, rather, to


                                             16
whether Peltier, at the time he made the prior consistent statements to Captain George,

had a motive to fabricate so as to “pin” the crime on McOmber. In other words, Peltier’s

“sketchy and inconsistent” trial testimony and his written and taped statements which

went to the jury as exhibits did not bear on the same factual point. As for the former,

Peltier indicated on cross-examination that he had a motive to fabricate at the time he

made the statements, but on redirect examination he stated that he did not have such a

motive. As for the latter, as already explained, the prior consistent statements were

offered to prove that McOmber knew there were insufficient funds in Peltier’s bank

account but nonetheless encouraged Peltier to write the check.            Thus, contrary to

McOmber’s assertion, the jurors in fact did have to rely on their memories of Peltier’s

“sketchy and inconsistent” trial testimony about his motives; the exhibits concerned an

entirely different matter.

¶37    Second, notwithstanding that Peltier’s trial testimony was consistent with his prior

consistent statements admitted as exhibits, McOmber has failed to explain how the jury’s

having what amounts to written copies of Peltier’s trial testimony prejudiced him.

McOmber presented no evidence at trial contradicting Peltier’s testimony.            Witness

Corrigan, who testified that there was no indication to him that McOmber was

encouraging Peltier to write a bad check, admitted on cross-examination that he had no

direct knowledge of McOmber’s conversations with Peltier. Moreover, to the extent

McOmber is suggesting that the jurors would have remembered Peltier’s testimony

incorrectly but for the exhibits containing Peltier’s prior consistent statements, there is no

evidence in the record supporting this contention.


                                             17
¶38    We conclude the State has demonstrated that, qualitatively, and in comparison

with Peltier’s trial testimony, there is no reasonable possibility that Peltier’s erroneously

admitted prior consistent statements contributed to McOmber’s conviction. Accordingly,

we hold that the admission of Peltier’s prior consistent statements was harmless error.

                                     CONCLUSION

¶39    The District Court erred in admitting, as prior consistent statements under

M. R. Evid. 801(d)(1)(B), Peltier’s February 18, 2004 written statement and the transcript

of his February 19, 2004 interview with Captain George. However, the District Court’s

admission of Peltier’s statements was harmless, as the State presented admissible

evidence proving the same facts as did Peltier’s statements, and qualitatively, there is no

reasonable possibility Peltier’s statements might have contributed to McOmber’s

conviction.

¶40    Affirmed.


                                                  /S/ JAMES C. NELSON



We Concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS




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