                                                                                      April 14 2009
                                         DA 07-0443

         IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2009 MT 126



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

RICHARD LEE CROSLEY,

               Defendant and Appellant.



APPEAL FROM:        District Court of the Twenty-First Judicial District,
                    In and For the County of Ravalli, Cause No. DC-99-79
                    Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                    Jim Wheelis, Chief Appellate Defender; Tammy Hinderman,
                    Legal Intern, Helena, Montana

              For Appellee:

                    Hon. Steve Bullock, Montana Attorney General; Tammy Plubell,
                    Assistant Attorney General, Helena, Montana

                    George H. Corn, Ravalli County Attorney; William Fulbright,
                    Deputy County Attorney, Hamilton, Montana


                                                 Submitted on Briefs: February 11, 2009

                                                            Decided: April 14, 2009

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


¶1     Richard Lee Crosley (Crosley) appeals his conviction in the Twenty-First Judicial

District Court, Ravalli County, of seven counts of incest, three counts of assault on a

minor, and bail jumping. We affirm in part, vacate in part, and remand for re-sentencing.

¶2     We restate the issues on appeal as follows:

¶3     Whether the District Court abused its discretion when it denied Crosley’s

challenge for cause of potential juror H.J. Aronson (Aronson).

¶4     Whether the District Court properly admitted evidence of other acts of incest

outside of Ravalli County under the transaction rule.

¶5     Whether Crosley was denied effective assistance of counsel.

¶6     Whether the District Court erred in sentencing Crosley pursuant to the law in

effect at the time of sentencing rather than at the time of the offenses.

                                     BACKGROUND

¶7     The evidence at trial indicated that Crosley abused his three oldest children from

1990 to 1998, while the family frequently moved residences, generally living in Ravalli

County, Montana. Daughters, A.P. and J.P., were born in 1986 and 1988, and son, R.J.,

was born in 1991. Crosley was not charged with abusing his youngest daughters, R.P.

and H.P., born in 1994 and 1997. Crosley’s ex-wife, E.P., provided a chronology of

where the family lived during this time. Crosley’s children testified at trial about his

escalating abuse, using the family’s frequent moves and births of additional children to




                                              2
frame particular recollections of abuse. The charges against Crosley were similarly

broken down by timeframes corresponding to residences where the abuse occurred.

¶8     A.P. testified that Crosley began sexually abusing her when she was

approximately four. Initially the abuse consisted of fondling and oral sex. When A.P.

was six or seven, the abuse escalated to sexual intercourse, and by the time she was nine,

the abuse included anal sex. A.P. testified that the abuse continued until she disclosed it

in 1998 when she was 12. After A.P.’s disclosure, J.P. recalled her father had touched

her inappropriately as well. J.P. remembered fondling, but did not recall any instances of

sexual intercourse or oral sex. A.P. testified that Crosley was the main disciplinarian in

their house, and the primary form of discipline was spanking. Crosley initially spanked

the children with his hands, but began using wooden spoons and an electrical cord as the

children got older. Crosley hit both R.J. and J.P. with the plug end of a cord, sometimes

on their bare skin. The children testified that Crosley shoved them, kicked them, and

hung them upside down by their ankles. A.P. also testified that Crosley used pliers to

twist her fingers until they cracked.

¶9     Crosley’s sexual abuse of A.P. started while the family lived in an apartment on

Second Street in Corvallis, Montana. A.P. recounted that while she was playing dress up

and pretending to be a bride, Crosley gave her a little gold ring, had her repeat marriage

vows, and told her she was his wife. Crosley reminded A.P. that she was his wife

throughout her childhood. The first instances of sexual abuse at the Second Street

apartment involved Crosley putting A.P.’s hand on his penis, Crosley touching A.P.’s

genitals, and Crosley forcing A.P. to perform oral sex on him at least three times. A.P.

                                            3
testified that the sexual contact continued when the family moved to Marcus Street in

Hamilton, although her only vivid memory was Crosley teaching her how to “French

kiss.” The family moved to Charlos Heights where Crosley fondled A.P.’s genitals and

had her stroke his penis. A.P. testified about being in the back seat of a car in the garage

where Crosley forced her to perform oral sex on him. Crosley’s sister-in-law, Tonya

Crosley, testified that she walked into the garage on one occasion and found A.P. in the

back seat of a vehicle with Crosley.

¶10    Crosley had sexual intercourse with A.P. for the first time during a trip to

California at the time the family was living in the Charlos Heights house. When A.P.

tried to get away, Crosley slapped her across the face and knocked her off the bed. A.P.

recalled bleeding and soreness in her vaginal area for several days. She was about seven

years old.

¶11    Crosley used religion and social isolation to keep his sexual abuse a secret.

Crosley invoked the Bible numerous times to convince A.P. that there was nothing wrong

with their sexual relationship and that she was his wife. Crosley assured A.P. that they

should not tell her mother about their relationship because she did not think it was okay

to have more than one wife, and she would be angry with A.P. and love her even less

than she already did. Crosley convinced A.P. that her mother did not love her as much as

she loved A.P.’s siblings and that only he really loved her.

¶12    The sexual abuse continued as the family moved around Montana, living outside

of Ravalli County in Missoula and Ronan for several years. Crosley’s sexual abuse of

A.P. escalated to anal intercourse in Ronan. This caused A.P. extreme embarrassment

                                             4
and bleeding. During this time, Crosley and A.P. often visited her paternal grandparents

in Corvallis where the sexual abuse continued. A.P. testified to multiple incidents of

sexual intercourse, oral sex, and genital touching in an upstairs bedroom at her

grandparents’ house, as well as three occasions when Crosley made her perform oral sex

on him in her grandparents’ barn.

¶13    While the family lived in Ronan, A.P. recalled seeing Crosley fondle J.P. and

Crosley put J.P.’s hand on his penis. Crosley began allowing J.P. to watch the sexual

contact between him and A.P. A.P. recounted one incident when the girls were playing

dress up with strips of cloth to mimic Indian princesses and Crosley tied J.P. up with

some of the strips, forcing her to watch as Crosley had sex with A.P. While J.P. did not

recall ever having intercourse with Crosley, she did remember how he would fondle her

under her dress while she sat in his lap.

¶14    When the family moved to Fish Hatchery Road outside of Hamilton, the sexual

abuse escalated to what A.P. described as a “torture stage.” There was a small room in

the basement that was reached through a hole in the foundation wall where Crosley’s

sexual intercourse with A.P. became a “fairly regular occurrence.” J.P. recounted at trial

that she once found Crosley and A.P. naked on a mattress in the crawl space in the

basement. Crosley also hung both A.P. and J.P. by their ankles from the ceiling in the

basement. A.P. also testified that Crosley used pliers to twist her fingers until they

cracked in this basement.

¶15    Crosley physically abused his children on multiple occasions. He was particularly

violent to R.J. Crosley repeatedly spanked him with the plug end of a lamp cord, shoved

                                            5
him into walls, and picked him up by the head. J.P. recounted being thrown to the

ground and kicked repeatedly by Crosley once when she did not complete a task to his

liking.

¶16       The family moved to the Main Street house in Corvallis where all forms of sexual

abuse continued. Crosley would drive down to their church parking lot where he had

A.P. sit on his lap in a skirt or dress without underwear and fondle her as she read the

Book of Psalms from the Bible. A.P. invited friends to spend the night to celebrate her

12th birthday when Crosley was scheduled to be out of town.               Crosley returned

unexpectedly and ordered A.P. to follow him to his bedroom where he had sex with her

while her guests were in the living room. J.P. remembered that A.P. emerged from the

bedroom looking sad and dejected. Crosley then called J.P. into the bedroom where he

put his penis in her panties.

¶17       A.P. finally disclosed Crosley’s years of sexual abuse to her mother. On one prior

occasion when she was about nine, her mother read her a “Good Touch, Bad Touch”

book and A.P. disclosed that Crosley had “rubbed” on her. This led her mother to

confront Crosley and implement some “modesty rules,” however the abuse resumed.

A.P. effectively disclosed Crosley’s abuse after her 12th birthday, when she began

hearing Crosley telling her younger sister, R.P., the same things he used to tell her, that

her mother did not love her anymore because R.P. was no longer the baby of the family.

After A.P.’s disclosure, E.P. initially tried to work things out with their pastor’s help,

however soon went to the authorities. Detective Peter Clarkson with the Ravalli County

Sheriff’s Office interviewed A.P. regarding the sexual abuse in 1998, and again in 2006.

                                              6
¶18    On August 12, 1999, Crosley was charged by information with incest, involving

sexual intercourse without consent with A.P. Crosley appeared with counsel and pled not

guilty on August 25, 1999. Crosley was released on his own recognizance, failed to

appear for his omnibus hearing, and a bench warrant was issued for his arrest on

November 17, 1999. Crosley was a fugitive until his arrest in August, 2006. Following a

renewed investigation, an Amended Information was filed charging Crosley with seven

counts of incest. A second Amended Information was filed on December 11, 2006,

charging Crosley with eight counts of incest, corresponding to time periods associated

with where the abuse occurred and which child was the victim; three counts of assault on

a minor, one for each child; and bail jumping.

¶19    On November 30, 2006, the State filed a Notice of Intent to Introduce Evidence of

Other Crimes, Wrongs & Acts (Notice). The Notice indicated that the State would offer

evidence of a “very significant trip to Sacramento, California, where Defendant first

elevated his abuse from sexual assaults to sexual intercourse,” in addition to evidence of

sexual and physical abuse that occurred in Missoula and Lake Counties between 1993

and 1995. The State relied upon the transaction rule, § 26-1-103, MCA, and in “an

abundance of caution” provided a Modified Just Notice under M. R. Evid. 404(b). On

the first day of trial, March 5, 2007, defense counsel stated his belief that the Notice

“would have met the legal standards.” The judge noted that he had reviewed the Notice

and “there being no objection, the notice is found to be sufficient and the State is allowed

to inquire into the areas covered by that notice during the trial.”



                                              7
¶20   During voir dire, the prosecutor, Mr. Fulbright, questioned potential juror

Aronson:

              MR. FULBRIGHT: A detective with the Sheriff’s Department by
      the name of Pete Clarkson.
              Does anybody know Detective Clarkson or had occasion to have run
      in with him.
              Okay. I’ve got to go to my cheat sheet here. Mr. Aronson.
              PROSPECTIVE JUROR: Yes.
              THE COURT: Do you know Detective Clarkson?
              PROSPECTIVE JUROR: Yes.
              MR. FULBRIGHT: How do you know him?
              PROSPECTIVE JUROR: Just professionally. I work for the Forest
      Service and he works for us.
              MR. FULBRIGHT: So he had a long career here, you knew that,
      and you had a long career with the Forest Service, it looks like. You guys
      crossed path a few times?
              PROSPECTIVE JUROR: Yes.
              MR. FULBRIGHT: So the question that’s really relevant is this:
      Detective Clarkson is going to be up here for a few minutes testifying
      during this trial, was involved in this case. The question for you would be:
      Detective Clarkson’s testimony versus other people’s testimony and such,
      the fact that you know Detective Clarkson in whatever manner, or however
      little you know him, would that affect your ability to view his testimony the
      same as other people’s testimony?
              PROSPECTIVE JUROR: I would give a lot of credibility to his
      testimony from knowing him.
              MR. FULBRIGHT: Okay. All right.
              Would you be able to listen his testimony and then some other
      witnesses, maybe even people that disagreed with him, let’s suppose that
      happens, someone disagrees with Detective Clarkson, and be able to set
      aside the fact that one of those was Detective Clarkson and one is Witness
      B, and say let me look at the facts and weigh those out and keep an open
      mind?
              PROSPECTIVE JUROR: Somewhat, yeah. I’d tend to believe Mr.
      Clarkson, but I’d try to keep an open mind, I guess.
              MR. FULBRIGHT: Could you keep an open mind, look at the
      facts?
              PROSPECTIVE JUROR: Uh-huh.
              MR. FULBRIGHT: I appreciate your candor.



                                           8
¶21    Defense counsel, Mr. Eschenbacher, immediately questioned Aronson at the start

of his voir dire:

               MR. ESCHENBACHER: Mr. Aronson, you said you know
       Detective Clarkson.
               PROSPECTIVE JUROR: That’s correct.
               MR. ESCHENBACHER: And you actually value his testimony
       very strongly, didn’t you say that?
               PROSPECTIVE JUROR: Yes, I would.
               MR. ESCHENBACHER: If it came down to Detective Clarkson
       saying A and an unknown witness saying B, who are you going to believe?
               PROSPECTIVE JUROR: Probably Mr. Clarkson.
               MR. ESCHENBACHER: And that’s based on your knowledge of
       him. He’s a decent gentleman. He’s been around a long time.
               But based on that, if it was totally neutral what the information was
       but they contradicted each other, you automatically would have to follow in
       line with Detective Clarkson?
               PROSPECTIVE JUROR: I would tend to believe him before I’d
       believe somebody I didn’t know because I know he’s a very credible man
       in my opinion.
               MR. ESCHENBACHER: We’re not attacking his credibility.
       We’re exploring testimony it’s mostly when it comes down to if Detective
       Clarkson said something and you’re going into the jury room to deliberate
       and someone else had another witness had said something, do you think
       you would be fair to the other jurors or would you just say Pete Clarkson
       said it, I don’t need to worry about it?
               PROSPECTIVE JUROR: People can make mistakes on what they
       think they saw, too. I’d consider that, of course, but I just don’t think that
       Pete would lie on the witness stand.
               MR. ESCHENBACHER: And again, I'm sorry, I don’t want it
       misconstrued. I’m not saying people would lie. I’m saying maybe a
       difference of opinion or difference of observation.
               PROSPECTIVE JUROR: Okay.
               MR. ESCHENBACHER: Would that affect you, how you would
       look at it, that maybe Pete would look at it differently than somebody else?
               PROSPECTIVE JUROR: I would look at it from what people have
       said.
               MR. ESCHENBACHER: Okay. But if you looked at it from what
       they both said, you give me the impression that you think that Detective
       Clarkson word would carry more weight; would that be fair?
               PROSPECTIVE JUROR: Honestly, I guess I’d have to say yes.
               MR. ESCHENBACHER: With that in mind, do you think you can

                                             9
be absolutely fair to Richard if Detective Clarkson said something that was
against Richard?
        PROSPECTIVE JUROR: It would have to depend on what it was,
what he said. If it was, I guess, an opinion versus something that — you
have to weigh opinions versus facts, too, I guess.
        MR. ESCHENBACHER: But if you had -- if it came down to that
hair breath’s difference, do you really think you couldn’t give a fair shake
to both sides, do you think you’d probably fall over on the side --
        PROSPECTIVE JUROR: I think I would probably follow Pete’s
lead.
        MR. ESCHENBACHER: Again, I’m not trying to pick on you, I’m
just trying to make sure that we get as fair a panel as possible, and Pete
Clarkson is a great guy, but if you’re biased towards Pete, you may not be
as fair towards Richard.
        Do you understand where I’m going?
        PROSPECTIVE JUROR: Yeah, I understand.
        MR. ESCHENBACHER: Do you think you could be fair to
Richard?
        PROSPECTIVE JUROR: I think so. I guess, you know, you really
don’t know until you know what they’re both saying.
        MR. ESCHENBACHER: But you realize you won’t know what
they’re both saying unless you’re picked for a jury.
        PROSPECTIVE JUROR: I realize that.
        MR. ESCHENBACHER: So if you’re picked for a jury and you
don’t know until after Pete Clarkson testifies that that could be a problem
for us.
        PROSPECTIVE JUROR: I would have to believe Pete, somebody I
know, in all honesty.
        MR. ESCHENBACHER: Sure, sure. Based on that in mind, do you
think it would be appropriate that you sat on this jury or would you rather
not, because you might be called for another jury where Pete Clarkson
might not be called, it might be easier for you to be totally fair to both
sides.
        PROSPECTIVE JUROR: I would guess that. Obviously, if you
don’t know people, you’re -- I mean there’s people I know that I would
tend not to believe.
        MR. ESCHENBACHER: Oh, yeah.
        PROSPECTIVE JUROR: I’d give a little more reasonable doubt,
but Pete’s not one of them. And I’d try to be unbiased.
        MR. ESCHENBACHER: Would you have to work at it?
        PROSPECTIVE JUROR: We’re really splitting hairs here.
        MR. ESCHENBACHER:              I know.       I have a tremendous
responsibility to Richard.

                                    10
             PROSPECTIVE JUROR: In all honesty, if Pete and somebody else
      that I didn’t know stated two things differently, I would believe Pete.
      That’s all can I really say.
             MR. ESCHENBACHER: Would you mind if I asked the judge if
      you can be excused? Would that be a problem for you?
             PROSPECTIVE JUROR: No, that’s your prerogative.
             MR. ESCHENBACHER: Your Honor, I would ask that Mr.
      Aronson be allowed to be excused for cause based on his giving extra
      weight, and fairly, I understand, but giving extra weight to a possible
      potential witness.
             THE COURT: Question.
             MR. FULBRIGHT: Your Honor, I guess I heard Mr. Aronson say
      he could be fair, and he recognizes he knows people but a lot of people
      know people in the valley here, so I think he answered that he could be fair
      in weighing out the testimony.
             THE COURT: Well, sir, you understand that every witness is
      presumed to speak the truth once they’re under oath, correct?
             PROSPECTIVE JUROR: I understand that people are presumed to
      speak the truth. I don’t believe that they always do when they’re under
      oath, so I would tend to take what I know, you know, about a person and
      weigh that in.
             THE COURT: But you would be willing to, if there was some
      difference in the testimony, you would be willing to consider the opposing
      testimony and any of the surrounding circumstances that would be
      consistent with one or the other?
             PROSPECTIVE JUROR: I would look for consistency, yes.
             THE COURT: And if you found that, having done that, that perhaps
      another witness’s testimony is more consistent with surrounding
      circumstances than Officer Clarkson, you would be willing to go where that
      leads you?
             PROSPECTIVE JUROR: I would look at that very heartily, yes.
             THE COURT: And you would be willing to base any verdict on
      solely on the evidence as you find it and the jury instructions?
             PROSPECTIVE JUROR: Correct.
             THE COURT: Well, I don't believe that cause has been shown.
             MR. ESCHENBACHER: Thank you, Your Honor.

¶22   Later during voir dire, defense counsel noted how incest is different than other

crimes. In particular, counsel relayed how many people would ask him whether he

thought a defendant charged with murder was innocent, but when he mentioned


                                          11
representing a defendant charged with incest, people would ask, “how could he?”

Defense counsel then asked the jury pool how many had that feeling, “how could he?”

Counsel followed up with many jurors, including Aronson, who responded, “I think it’s a

horrible thing and it’s very distasteful, but we have to know whether a person did it or

not.”

¶23     During the four-day trial, the State presented 22 witnesses. In addition to the

children and their mother, witnesses included investigators, and friends and family who

observed various incidents corroborating aspects of the children’s testimony.

¶24     The jury found Crosley guilty of all charges except for one count of incest alleging

sexual contact between Crosley and J.P. occurring sometime between 1991 and 1995.

For the incest convictions, the court sentenced Crosley to six concurrent life sentences

and one consecutive 50-year sentence, with 25 years suspended, all to be served without

parole eligibility until he completed all available phases of sexual offender treatment.

Crosley appeals.

                               STANDARD OF REVIEW

¶25     This Court reviews a district court’s denial of a challenge for cause to a

prospective juror for abuse of discretion. State v. Robinson, 2008 MT 34, ¶ 7, 341 Mont.

300, 177 P.3d 488. If a district court abuses its discretion in denying a challenge for

cause, the defendant uses a peremptory challenge to remove the juror, and also uses all of

his peremptory challenges, we will reverse the judgment and order a new trial. Robinson,

¶ 7.



                                             12
¶26    We review a district court’s evidentiary ruling regarding the admissibility of

evidence of other crimes, wrongs, or acts for abuse of discretion. State v. Marshall, 2007

MT 198, ¶ 11, 338 Mont. 395, 165 P.3d 1129.

¶27    Ineffective assistance of counsel claims are mixed questions of fact and law that

we review de novo. State v. Herrman, 2003 MT 149, ¶ 18, 316 Mont. 198, 70 P.3d 738.

¶28    This Court reviews a criminal sentence for legality; we determine whether the

sentence is within statutory parameters. State v. Tracy, 2005 MT 128, ¶ 12, 327 Mont.

220, 113 P.3d 297.

                                      DISCUSSION

¶29    Whether the District Court abused its discretion when it denied Crosley’s

challenge for cause of potential juror Aronson.

¶30    A criminal defendant’s right to trial by an impartial jury is guaranteed by the Sixth

Amendment to the United States Constitution and Article II, Section 24 of the Montana

Constitution. The grounds for challenging potential jurors for cause in a criminal trial are

statutorily provided in § 46-16-115(2), MCA. A potential juror may be excused for cause

when a district court determines that a juror has “a state of mind in reference to the case

or to either of the parties that would prevent the juror from acting with entire impartiality

and without prejudice to the substantial rights of either party.” Section 46-16-115(2)(j),

MCA.

¶31    Structural error requiring automatic reversal occurs when a district court abuses its

discretion by denying a defendant’s challenge for cause, the defendant uses a peremptory

challenge to dismiss the challenged juror, and the defendant exhausts all available

                                             13
peremptory challenges. State v. Good, 2002 MT 59, ¶¶ 62-63, 309 Mont. 113, 43 P.3d

948. In this case, the District Court denied Crosley’s challenge of Aronson for cause,

Crosley then used a peremptory challenge to dismiss Aronson, and Crosley exhausted all

available peremptory challenges. Thus, this issue turns on whether the District Court

abused its discretion in denying Crosley’s challenge for cause.

¶32    When voir dire examination of a potential juror raises serious doubts about the

juror’s ability to be fair and impartial, the juror should be removed for cause. Robinson,

¶ 8; State v. Hausauer, 2006 MT 336, ¶ 23, 335 Mont. 137, 149 P.3d 895; State v. Golie,

2006 MT 91, ¶ 8, 332 Mont. 69, 134 P.3d 95; State v. Richeson, 2004 MT 113, ¶ 14, 321

Mont. 126, 89 P.3d 958; State v. Heath, 2004 MT 58, ¶ 10, 320 Mont. 211, 89 P.3d 947;

State v. Freshment, 2002 MT 61, ¶ 11, 309 Mont. 154, 43 P.3d 968. We review a

potential juror’s voir dire responses as a whole to determine whether a serious question

arose regarding the juror’s ability to be fair and impartial. State v. Harville, 2006 MT

292, ¶ 9, 334 Mont. 380, 147 P.3d 222; Golie, ¶ 10; Heath, ¶ 18.

¶33   A court abuses its discretion if it fails to excuse a potential juror whose actual bias

is discovered during voir dire. Heath, ¶ 7. A common form of actual bias occurs when a

potential juror has a “fixed opinion” of a defendant’s guilt before trial begins. Robinson,

¶ 9; Heath, ¶ 16 (concluding that the “fixed opinion of guilt” rule is but one argument

that can be asserted under the statutory “state of mind” ground for challenges for cause).

Most examples of a “fixed opinion” of guilt involve potential jurors who express

difficulty applying a presumption of innocence to a criminal defendant. State v.

Braunreiter, 2008 MT 197, ¶¶ 24-25, 344 Mont. 59, 185 P.3d 1024 (district court abused

                                            14
discretion by failing to dismiss juror who would require defendant to testify to prove

innocence); Hausauer, ¶ 28 (juror’s voir dire responses revealed serious question about

her ability to afford defendant a presumption of innocence because she firmly believed

there must be a good reason defendant was on trial); Golie, ¶ 15 (district court abused

discretion by denying challenge for cause of potential juror who stated DUI was a “sore

subject” for him due to unresolved accident in which he was injured by a drunk driver,

and further indicated that he did not know if his “passionate concern” about DUI would

negatively impact defendant); Good, ¶ 53 (potential jurors’ adherence to belief that a

sexual abuse victim would not lie demonstrated serious question about ability to act with

impartiality and afford defendant presumption of innocence); State v. DeVore, 1998 MT

340, ¶¶ 15-24, 292 Mont. 325, 972 P.2d 816 (district court abused discretion by failing to

dismiss two jurors with an unwavering belief that a criminal defendant “must be guilty of

something” to be on trial, which demonstrated an inability to afford the defendant the

presumption of innocence), overruled in part on other grounds by Good, ¶ 63.

¶34    Another improper “state of mind” involves a potential juror who expresses an

inability to follow the law by stating an actual bias directly related to “an issue critical to

the outcome of the case.” Freshment, ¶ 16 (district court abused its discretion in failing

to dismiss two potential jurors who stated an actual bias regarding whether defendant

could have a reasonable belief victim was age 16, which was legal defense asserted for

sexual intercourse without consent; jurors both stated they could not acquit even if they

found defendant had a reasonable belief that victim was at least 16 years old).



                                              15
¶35    “In contrast, if a prospective juror merely expresses some concern about remaining

impartial, but believes he can lay aside any concerns and fairly weigh the evidence, the

district court is not required to remove the juror for cause.” Robinson, ¶ 10. This Court

has affirmed a district court’s denial of challenges for cause of potential jurors who

admitted having doubts about a defendant’s innocence, but responded that they could set

aside their concerns. State v. Normandy, 2008 MT 437, ¶¶ 23-25, 347 Mont. 505, 198

P.3d 834 (affirming denial of challenge for cause when potential juror has predisposition

against domestic violence, but not defendant); Robinson, ¶ 13 (deferring to district court’s

decision not to excuse potential juror for cause when court had considered juror’s

conflicting statements regarding presumption of innocence); State v. Rogers, 2007 MT

227, ¶¶ 25-26, 339 Mont. 132, 168 P.3d 669 (finding juror’s mere hesitancy or concern

about ability to be impartial in sexual abuse trial did not raise serious questions requiring

removal for cause); State v. Marble, 2005 MT 208, ¶¶ 20-21, 328 Mont. 223, 119 P.3d 88

(concluding that juror with strong religious beliefs about charges at issue did not need to

be removed for cause, because he consistently stated that he would follow the law and

fairly weigh the evidence); Heath, ¶¶ 25, 34-35 (finding that juror who had volunteered

as rape survivor advocate and been stalked by ex-boyfriend could set aside experiences to

look at facts objectively); State v. Falls Down, 2003 MT 300, ¶¶ 25-36, 318 Mont. 219,

79 P.3d 797 (concluding that challenged jurors demonstrated no fixed opinion of guilt

based on what they heard in the media and could be fair and impartial). In fact, a district

court has considerable discretion in determining whether to excuse a juror for cause:

       When a juror makes conflicting statements, as in this case, the decision

                                             16
       whether to grant a challenge for cause is within the discretion of the trial
       judge, who has the ability to look into the eyes of the juror in question, and
       to consider her responses in the context of the courtroom, and then
       determine whether serious doubts exist about the juror’s ability to be
       impartial.

Robinson, ¶ 13.

¶36    Aronson never expressed a fixed opinion of Crosley’s guilt or actual bias against

Crosley. While there was much questioning about Aronson’s ability to fairly weigh

testimony from Detective Clarkson against other testimony, this is significantly different

than the type of improper state of mind that raises serious doubts about a juror’s ability to

be fair and impartial. This Court has held that a district court abused its discretion by not

denying a challenge for cause when a potential juror expressed difficulty affording a

criminal defendant the presumption of innocence or cannot properly apply the law.

Beyond that our review has been more deferential.

¶37    Aronson admitted that he would give a lot of credibility to Clarkson’s testimony

because he knew him. But when further asked whether he could look at the facts, weigh

them out, and keep an open mind, Aronson responded, “Somewhat yeah. I’d tend to

believe Mr. Clarkson, but I’d try to keep an open mind, I guess.”           The prosecutor

followed up on this response by clarifying, “Could you keep an open mind, look at the

facts?” Aronson replied affirmatively, “Uh-huh.” While these answers perhaps lack the

conviction that defense counsel would prefer, they do not raise serious doubts about

Aronson’s ability to be fair and impartial.

¶38    Defense counsel’s questioning failed to raise any serious doubts about Aronson’s

ability to be fair and impartial, despite persistent exploration of the impacts of weighing

                                              17
Clarkson’s testimony strongly. Aronson consistently acknowledged valuing Clarkson’s

credibility, but when questioning shifted from abstract-evidence weighing to fairness,

Aronson’s answers did not reveal any actual bias.        Defense counsel asked whether

Aronson would be fair to other jurors during deliberations or whether he would just defer

to Clarkson. Aronson replied, “People can make mistakes on what they think they saw,

too. I’d consider that, of course, but I just don’t think that Pete [Clarkson] would lie on

the witness stand.” Defense counsel attempted to clarify that the issue was not whether

Clarkson would lie, but how differences of opinion between Clarkson and other witnesses

would affect Aronson’s judgment. Aronson responded, “I would look at if from what

people have said.” These answers demonstrate that Aronson would not blindly accept

Clarkson’s testimony in the face of differences of opinion. In fact, when finally asked the

dispositive question, whether he could be absolutely fair to Crosley, Aronson replied, “It

would have to depend on what it was, what he said. If it was, I guess, an opinion versus

something that – you have to weigh opinions versus facts, too, I guess.” Defense counsel

later repeated the dispositive question of whether he could be fair to Crosley, and

Aronson answered, “I think so. I guess, you know, you really don’t know until you know

what they’re both saying.” Later Aronson indicated he would “try to be unbiased.”

¶39   We cannot find any actual bias in Aronson’s consistent responses regarding how

he might weigh witness credibility when such responses never raise any serious doubts

about his ability to be fair and impartial to Crosley. We agree with the prosecutor’s

response to defense counsel’s challenge to Aronson for cause: “I heard Mr. Aronson say

he could be fair, and he recognizes he knows people, but a lot of people know people in

                                            18
the valley here, so I think he answered that he could be fair in weighing out the

testimony.” Indeed Aronson never said that he could not be fair or impartial to Crosley.

While Aronson acknowledged that he would find Clarkson’s testimony more credible

than someone he did not know, he allowed that Clarkson could make mistakes and that he

would weigh the evidence heartily. Later Aronson noted that he thought incest was a

horrible thing, “but we have to know whether a person did it or not.” This spontaneous

response reinforces his impartiality. The District Court excused ten potential jurors for

cause as a result of admissions that jurors could not be fair; would shift the burden of

proof to the defendant; could not base a decision solely on the evidence; or had personal

experiences that would affect their judgment. Aronson fell short of these improper states

of mind and we defer to the discretion of the district court judge “who has the ability to

look into the eyes of the juror in question, and to consider [his] responses in the context

of the courtroom, and then determine whether serious doubts exist about the juror’s

ability to be impartial.” Robinson, ¶ 13.

¶40    Additionally, Clarkson’s importance as a trial witness should be placed in proper

perspective.   Clarkson did not interview Crosley during his investigation, and only

testified regarding his investigation, including his interviews with A.P. The jury was

never required to weigh Clarkson’s testimony against an adverse party. In fact, to the

extent that defense counsel cross-examined Clarkson regarding inconsistencies in A.P.’s

recollections between her interviews in 1998 and 2006, his credibility as a witness would

actually support Crosley’s defense. Clarkson was one of many witnesses who helped

corroborate various aspects of the children’s allegations. His credibility as a witness was

                                            19
not nearly as important as the credibility of the children, clearly the material witnesses.

We cannot find any instances in the record where contradictory information was

presented requiring the jury to weigh Clarkson’s testimony against another witness’

testimony. In this context, any tendency for Aronson to find Clarkson’s testimony more

credible than an unknown witness would not raise serious doubts about his ability to be

fair and impartial.

¶41    The final question regarding whether the District Court abused its discretion is

whether the court improperly rehabilitated Aronson. “[W]e have repeatedly admonished

trial judges to refrain from attempting to rehabilitate jurors by putting them in a position

where they will not disagree with the court.” Good, ¶ 54. “Coaxed recantations in which

jurors state they will merely follow the law, whether prompted by the trial court, the

prosecution, or the defense, do not cure or erase a clearly stated bias which demonstrates

actual prejudice against the substantial rights of a party.” Freshment, ¶ 18. However, a

district court does not abuse its discretion when the judge attempts to clarify a juror’s

answers or explain unclear concepts. Robinson, ¶ 14; Heath, ¶ 29.

¶42    We find that the District Court here attempted to clarify Aronson’s answers to a

series of questions from counsel attempting to elicit different responses from his

consistent acknowledgement that he would value Clarkson’s testimony strongly. Far

from putting jurors “in a position where they will not disagree with the court,” the

District Court clarified whether Aronson would be willing to consider opposing

testimony and surrounding circumstances for consistency. Aronson questioned whether

people always speak the truth under oath, but acknowledged that he would “look for

                                            20
consistency” and “very heartily” go where that led him. Since Aronson’s answers did not

denote a “clearly stated bias,” there was no way that the District Court could have coaxed

him to recant. We conclude that the District Court’s questioning of Aronson was a

clarification of the juror’s ability to properly weigh the evidence, not a “coaxed

recantation of bias.”

¶43    Therefore, we hold that the District Court did not abuse its discretion in denying

Crosley’s challenge for cause of potential juror Aronson.

¶44    Whether the District Court properly admitted evidence of other acts of incest

outside of Ravalli County under the transaction rule.

¶45    Crosley argues that the District Court erred by failing to apply the procedural and

substantive safeguards of M. R. Evid. 404(b), as interpreted by the Modified Just Rule, in

order to insure that the jury did not use evidence of other acts of incest that occurred

outside of Ravalli County to improperly convict him. In particular, Crosley contends that

the District Court committed reversible error by deleting essential language from his

proposed jury instruction regarding the proper use of other acts evidence. Crosley further

contends that the District Court committed plain error by failing to give a

contemporaneous admonition when other acts evidence was presented to the jury.

¶46    The State argues that it did not present other acts evidence pursuant to M. R. Evid.

404(b), but introduced evidence of other acts of incest under the transaction rule and only

gave a 404(b) notice out of caution and to avoid surprise. The State notes that when

evidence is admissible pursuant to the transaction rule, the procedural requirements of the

Modified Just Rule are not applicable.

                                            21
¶47   M. R. Evid. 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.

This Court’s precedent, described as the Modified Just Rule, provides additional

substantive and procedural criteria for the admission of other acts evidence. State v.

Buck, 2006 MT 81, ¶¶ 72-74, 331 Mont. 517, 134 P.3d 53 (citing State v. Just, 184 Mont.

262, 268-69, 602 P.2d 957, 961 (1979) and State v. Matt, 249 Mont. 136, 142, 814 P.2d

52, 56 (1991)).    Crosley claims that the District Court failed to fulfill two of the

procedural requirements of the Modified Just Rule by not explaining to the jury the

purpose of other acts evidence when introduced, and inadequately instructing the jury of

the limited purpose of other acts evidence. See Buck, ¶ 74.

¶48   However, the Modified Just Rule has an exception. This exception is codified as

the “transaction rule,” which provides: “[w]here the declaration, act, or omission forms

part of a transaction which is itself the fact in dispute or evidence of that fact, such

declaration, act, or omission is evidence as part of the transaction.” Section 26-1-103,

MCA. Pursuant to the transaction rule, evidence of other acts that are “inextricably

linked to, and explanatory of, the charged offense is admissible notwithstanding the rules

relating to ‘other crimes’ evidence.” State v. Lozon, 2004 MT 34, ¶ 12, 320 Mont. 26, 85

P.3d 753. The transaction rule acknowledges that “a longstanding distinction exists

between Rule 404(b) ‘other crimes’ evidence and evidence of a defendant’s misconduct

which is inseparably related to the alleged criminal act.”     Lozon, ¶ 12.     Thus, the

                                           22
requirements of the Modified Just Rule are not applied to evidence that “is not wholly

independent or unrelated to the charged offense.” Lozon, ¶ 12.

¶49    Evidence of Crosley’s other acts of incest that occurred in California, Missoula,

and Ronan are not wholly independent or unrelated to the charged offenses of incest in

Ravalli County. Crosley began sexually abusing A.P. when she was four years old, and

continued sexually abusing her until she finally disclosed the abuse at age 12. Crosley’s

sexual abuse of A.P. did not stop when the family left Ravalli County, and importantly,

the first instance of sexual intercourse occurred in California, and early instances of anal

sex occurred in Ronan. Crosley’s sexual abuse escalated over time and A.P.’s

recollections of this escalating abuse were marked by the changing locations where the

abuse occurred. All of these instances of sexual abuse, regardless of their location, are

inextricably linked to, and explanatory of, the charged offenses in Ravalli County.

¶50    The fact in dispute here is whether the various charged acts of incest occurred.

Evidence of that fact includes uncharged acts of incest that occurred outside of Ravalli

County since those acts are clearly related to and not independent of the continuous and

escalating nature of Crosley’s sexual abuse. Thus, evidence of Crosley’s escalating

sexual abuse form part of the transaction in dispute and are admissible under § 26-1-103,

MCA.

¶51    Crosley suggests that because the District Court gave a modified instruction on

“Evidence of Other Acts,” the court must have concluded that the uncharged acts were

not admissible pursuant to the transaction rule. Similarly, Crosley argues that the District

Court seemed to indicate that other acts evidence was admissible pursuant to the

                                            23
Modified Just Rule because the court found the State’s notice sufficient. We disagree

with this either/or argument. The State objected to Crosley’s proposed jury instruction on

other acts evidence, noting that the other acts were “first offered and admitted as part of a

continuous transaction.” Further, the State provided notice that it intended to introduce

evidence of other acts of incest in “an abundance of caution” and to allow Crosley to

fully prepare his defense.    The Notice relied primarily on the transaction rule, and

alternatively on the Modified Just Rule. Indeed, we have encouraged courts to apply the

safeguards of the Modified Just Rule liberally to protect defendants from unfair surprise.

Buck, ¶ 82. While we conclude that the District Court correctly applied the transaction

rule in admitting evidence of other acts of incest, we find no error in the District Court’s

other acts instruction nor its assessment of the State’s Notice.

¶52    Accordingly, we hold that evidence of other acts of incest outside of Ravalli

County was admissible under the transaction rule. The District Court did not abuse its

discretion in admitting this evidence pursuant to § 26-1-103, MCA.

¶53    Whether Crosley was denied effective assistance of counsel.

¶54    The Sixth Amendment to the United States Constitution, as incorporated through

the Fourteenth Amendment, and Article II, Section 24, of the Montana Constitution

guarantee a criminal defendant the right to effective assistance of counsel. To evaluate

claims of ineffective assistance of counsel, this Court has adopted the two-prong test

from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). State v. Kougl,

2004 MT 243, ¶ 11, 323 Mont. 6, 97 P.3d 1095. Under the Strickland test, the defendant

must establish that 1) counsel’s performance fell below an objective standard of

                                             24
reasonableness, and 2) a reasonable probability exists that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Kougl, ¶

11.

¶55   There is a strong presumption under the first Strickland prong that trial counsel’s

performance was based on sound trial strategy and falls within the broad range of

reasonable professional conduct. State v. Hendricks, 2003 MT 223, ¶ 7, 317 Mont. 177,

75 P.3d 1268. Regarding the second Strickland prong, “[a] reasonable probability is a

probability sufficient to undermine confidence in the outcome.        When a defendant

challenges a conviction, the defendant must show the fact finder’s reasonable doubt

respecting guilt could have been routed by the unprofessional errors of counsel.” State v.

Harris, 2001 MT 231, ¶ 19, 306 Mont. 525, 36 P.3d 372 (citation omitted).

¶56   Crosley claims that his defense counsel was ineffective when he failed to object to

other acts evidence and failed to request that the court provide a contemporaneous

admonition at the time this evidence was admitted. Crosley further contends that his

defense counsel’s decision not to object to the State’s Notice was not a strategic or

tactical decision, but rather a decision based on a misunderstanding of the law. Crosley

bases this contention on the fact that his defense counsel believed that the Notice “would

have met the legal standards.”     We disagree with this characterization of defense

counsel’s actions. As discussed above, evidence of other acts of incest was admissible

under the transaction rule, and therefore Crosley’s defense counsel did not act based on a

misunderstanding of the law. Crosley has not established that his counsel’s performance

fell below an objective standard of reasonableness under Strickland. Since evidence of

                                           25
other acts of incest was admissible under the transaction rule, any objections to that

evidence or requests for contemporaneous admonitions would be futile. Therefore, we

hold that Crosley was not denied effective assistance of counsel.

¶57    Whether the District Court erred in sentencing Crosley pursuant to the law in

effect at the time of sentencing rather than at the time of the offenses.

¶58    This Court has consistently held that a person has the right to be sentenced under

the statutes which are in effect at the time of the offense. Tracy, ¶ 16. Crosley notes that

he was convicted of seven counts of incest in violation of § 45-5-507(1), (4), MCA, each

pertaining to a different period of time:

       Count 1, A.P., 1989-1991 (Second Street, Corvallis);
       Count 2, A.P., 1991-1992 (Marcus Street);
       Count 3, A.P., 1992-1993 (Charlos Heights, Roaring Lion Road);
       Count 4, A.P., 1993-1995 (Honey House Lane, Corvallis (grandparents’ house));
       Count 5, A.P., 1995-1996 (Fish Hatchery Road);
       Count 6, A.P., 1996-1998 (Main Street, Corvallis);
       Count 8, J.P., 1995-1998.

The legislature has amended the maximum penalty for an incest conviction several times.

In 1989, the legislature raised the maximum term of imprisonment for incest, from ten to

20 years, when a victim is under 16 years old and the defender is three or more years

older. In 1995, the legislature raised the maximum penalty to life imprisonment. In

2007, the legislature again amended the incest statute to provide particular punishments

when an incest victim is 12 years old or younger. This version of the statute was in effect

when the District Court sentenced Crosley on May 16, 2007, but not necessarily when the

offenses were committed. Crosley notes that the District Court’s imposition of seven life

sentences (actually six life sentences, and 50 years with 25 suspended for count 8) under

                                              26
§ 45-5-507(4), MCA, was an unconstitutional ex post facto application of the law. We

agree. Therefore, we vacate Crosley’s sentences on incest counts 1, 2, 3, and 4, and

remand for resentencing in accordance with the statutes in effect at the time of the

offenses. We affirm Crosley’s life sentences on counts 5 and 6, and 50 years with 25

suspended on count 8, which punish offenses committed after 1995.

¶59    Affirmed in part, vacated in part, and remanded for re-sentencing.


                                                  /S/ MIKE McGRATH

We concur:

/S/ JOHN WARNER
/S/ JIM RICE
/S/ BRIAN MORRIS



Justice W. William Leaphart specially concurring.

¶60    I concur in the Court’s resolution of Issues 2, 3, and 4. I join in Justice Nelson’s

special concurrence as to Issue 1.

                                                  /S/ W. WILLIAM LEAPHART




Justice James C. Nelson, specially concurring.

¶61    I concur in the Court’s resolution of Issue 4 (the sentencing issue, discussed at

¶ 58). I specially concur in the Court’s resolution of Issues 1, 2, and 3. My primary

concerns relate to Issue 2; however, I first address a number of points related to Issue 1.

                                             27
                                           Issue 1

¶62    On the question of whether the District Court abused its discretion when it denied

Crosley’s challenge for cause of potential juror Aronson, I concur in the result the Court

reaches, but I do not agree with all of the Court’s analysis. First, I do not believe that a

veniremember must actually say that he cannot be fair or impartial before we can find

actual bias (Opinion, ¶ 39). “Bias can be revealed by a juror’s express admission of that

fact, but, more frequently, jurors are reluctant to admit actual bias, and the reality of their

biased attitudes must be revealed by circumstantial evidence.” State v. Chastain, 285

Mont. 61, 64, 947 P.2d 57, 59 (1997) (internal quotation marks omitted), overruled in

part on other grounds, State v. Herrman, 2003 MT 149, ¶ 33, 316 Mont. 198, 70 P.3d

738.

¶63    Second, I cannot join the Court’s reasoning at ¶ 40, which resembles a harmless

error analysis (i.e., because Clarkson’s testimony ultimately was not that “important” and

may have even “supported” Crosley’s defense, any error in not removing Aronson for

cause was harmless). We have previously held that “jury selection errors are ‘structural’

errors and as such, they are not amenable to harmless error review.” State v. Bird, 2002

MT 2, ¶ 39, 308 Mont. 75, 43 P.3d 266. Even more to the point here, we have held that

“structural error occurs if: (1) a district court abuses its discretion by denying a challenge

for cause to a prospective juror; (2) the defendant uses one of his or her peremptory

challenges to remove the disputed juror; and (3) the defendant exhausts all of his or her

peremptory challenges.” State v. Good, 2002 MT 59, ¶ 62, 309 Mont. 113, 43 P.3d 948.



                                              28
¶64      Notably, the dissenting opinion in Good argued for the same sort of analysis that

appears in ¶ 40 of today’s Opinion. Compare Good, ¶ 64 (“The dissent thus maintains

that, in a criminal prosecution in which the State’s evidence is uncontroverted, there are

no disputed facts and thus no potential for prejudice arising from an erroneous denial of a

challenge for cause.”), with Opinion, ¶ 40 (“We cannot find any instances in the record

where contradictory information was presented requiring the jury to weigh Clarkson’s

testimony against another witness’ testimony.”). The Good Court rejected the dissent’s

approach, explaining that

         in a criminal case, the accused is not obligated to put on any evidence or to
         disprove the State’s case—rather, innocence is presumed. Thus, even if the
         State’s case is uncontroverted, the matter is still presented to the jury and
         the jury has the prerogative of rejecting the State’s case for any number of
         reasons including that the jurors find the State’s witnesses not credible, its
         evidence improbable, or its proof insufficient.

Good, ¶ 65. For this reason, the Court’s subjective analysis of “Clarkson’s importance as

a trial witness” (Opinion, ¶ 40) is inapt.

¶65      The question is whether, in light of his stated inclination to “give a lot of

credibility to [Clarkson’s] testimony from knowing him,” Aronson should have been

removed from the venire. While I consider this to be a close question, I conclude that on

the record here (including the follow-up questioning of Aronson), Crosley has not

established that Aronson would have been unable to determine Crosley’s guilt or

innocence fairly and impartially. Given our standard of review, therefore, I agree with

the Court that the District Court did not abuse its discretion in denying the challenge for

cause.


                                              29
                                     Issues 2 and 3

¶66    Issue 2 concerns the admission of evidence of prior uncharged misconduct by

Crosley outside Ravalli County (specifically, in Missoula County and Lake County and

on the trips to California). Generally, the substantive and procedural requirements of the

Modified Just Rule must be met before evidence of other crimes, wrongs, or acts is

admissible. State v. Just, 184 Mont. 262, 269, 274, 602 P.2d 957, 961, 963-64 (1979);

State v. Matt, 249 Mont. 136, 142-43, 814 P.2d 52, 56 (1991). The Court explains,

however, that the so-called “transaction rule” is an “exception” to these requirements.

Opinion, ¶ 48. Thus, although the Modified Just Rule indisputably was not complied

with in this case, the Court holds that evidence of Crosley’s prior bad acts was admissible

under the transaction rule. Opinion, ¶ 52.

¶67    I have grave concerns about this Court’s ever-expanding pronouncements

concerning the scope of the transaction rule. Over the past 15 years, in case after case,

we have broadened the transaction rule to encompass more and more evidence that

otherwise would have fallen within the strictures of the Modified Just Rule, and one

cannot help but visualize the transaction rule as a sort of maverick Pac-Man that blips

from case to case devouring “bad acts” evidence as quickly as it appears. We have read

into the transaction rule language far beyond that used in the statute (§ 26-1-103, MCA),

and I believe that it is time we rein in this exception before it completely swallows the




                                             30
Modified Just Rule and the general prohibition against evidence of other crimes, wrongs,

or acts.1

¶68    In State v. Hansen, 1999 MT 253, 296 Mont. 282, 989 P.2d 338, we decided that

the better practice is to abandon the use of amorphous doctrines of evidence such as

corpus delicti and res gestae and “to, instead, use the specific rule of evidence or statute

that applies to the particular factual situation presented” in order to determine the

admissibility of the evidence at issue.       Hansen, ¶ 81; see also Hansen, ¶¶ 27-84

(discussing corpus delicti and res gestae).       Thus, our analysis must begin with an

applicable statute or rule of evidence.

¶69    The Court contends that § 26-1-103, MCA, is applicable here. This statute states:

               Where the declaration, act, or omission forms part of a transaction
       which is itself the fact in dispute or evidence of that fact, such declaration,
       act, or omission is evidence as part of the transaction.

Yet, the Court does not apply the actual language of this statute. Instead, the Court

applies a number of standards (articulated in ¶ 48) which have been “associated” with

§ 26-1-103, MCA, but which are broader than the statutory language and have no place

whatsoever in our jurisprudence.

¶70    Specifically, the Court states that “evidence of other acts that are ‘inextricably

linked to, and explanatory of, the charged offense’ ” is admissible under the transaction

rule. Opinion, ¶ 48 (quoting State v. Lozon, 2004 MT 34, ¶ 12, 320 Mont. 26, 85 P.3d

       1
        Notably, counsel argues in Crosley’s opening and reply briefs on appeal that
pursuant to this Court’s recent cases applying the transaction rule, “the exception has
swallowed Rule 404(b) and the Modified Just Rule and the procedural and substantive
safeguards of those rules have essentially been discarded.” Counsel urges us to “revisit”
our formulation of the transaction rule.
                                             31
753). Yet, the words “inextricably linked to, and explanatory of, the charged offense” do

not appear in § 26-1-103, MCA. The Court goes on to state that “the requirements of the

Modified Just Rule are not applied to evidence that ‘is not wholly independent or

unrelated to the charged offense.’ ” Opinion, ¶ 48 (quoting Lozon, ¶ 12). Yet, if any

“bad acts” evidence which is “not wholly independent or unrelated to the charged

offense” is admissible under the transaction rule, then I question why we retain the

pretense of having a Modified Just Rule.

¶71   The standards articulated in Lozon and repeated in ¶ 48 of the Court’s Opinion

evolved from this Court’s jurisprudence under the doctrines of corpus delicti and res

gestae. See State v. Derbyshire, 2009 MT 27, ¶ 32, 349 Mont. 114, 201 P.3d 811. Over

the years, we have repeatedly associated those standards with § 26-1-103, MCA. See e.g.

State v. Wing, 264 Mont. 215, 224-25, 870 P.2d 1368, 1374 (1994); State v. Atkins, 277

Mont. 103, 110, 920 P.2d 481, 485 (1996); State v. Beavers, 1999 MT 260, ¶ 48, 296

Mont. 340, 987 P.2d 371; State v. Insua, 2004 MT 14, ¶ 40, 319 Mont. 254, 84 P.3d 11;

Lozon, ¶¶ 11-12; State v. Marshall, 2007 MT 198, ¶ 16, 338 Mont. 395, 165 P.3d 1129;

State v. Bieber, 2007 MT 262, ¶¶ 54, 57, 339 Mont. 309, 170 P.3d 444; State v. Hill,

2008 MT 260, ¶ 39, 345 Mont. 95, 189 P.3d 1201. I have done so myself in several

recent cases. See e.g. State v. Buck, 2006 MT 81, ¶ 76, 331 Mont. 517, 134 P.3d 53;

State v. Gittens, 2008 MT 55, ¶ 37, 341 Mont. 450, 178 P.3d 91; State v. Mackrill, 2008

MT 297, ¶¶ 40-41, 345 Mont. 469, 191 P.3d 451.

¶72   However, we are constrained by § 1-2-101, MCA, to apply the language of

§ 26-1-103, MCA, as written and not to read into this statute extraneous language which

                                           32
effectively perpetuates the doctrines of res gestae and corpus delicti.2 We discarded those

doctrines in Hansen a decade ago, and they have no business “hiding out” in our

jurisprudence under § 26-1-103, MCA. Again, the statute states: “Where the declaration,

act, or omission forms part of a transaction which is itself the fact in dispute or evidence

of that fact, such declaration, act, or omission is evidence as part of the transaction.”

Nothing in this language supports the proposition that evidence which is simply

“explanatory of” a charged offense or “not wholly independent or unrelated to” the

offense is admissible pursuant to § 26-1-103, MCA. Such evidence may be admissible

under another statute or rule,3 but it is pure sophistry to hold that it is admissible under

§ 26-1-103, MCA. The critical language of the statute states that the declaration, act, or

omission must “form part of” the transaction which is itself the fact in dispute or

evidence of that fact. Merely being “explanatory of” or “not wholly independent or

unrelated to” the transaction is not the language of § 26-1-103, MCA.

¶73    We have previously observed that § 26-1-103, MCA, “is simply an exception to

the hearsay rule.” Payne v. Buechler, 192 Mont. 311, 316, 628 P.2d 646, 649 (1981)

(citing Callahan v. Chicago, Burlington & Quincy R.R. Co., 47 Mont. 401, 133 P. 687

(1913)). Indeed, insofar as the word “declaration” is concerned, § 26-1-103, MCA, is

nothing more than a statutory precursor to M. R. Evid. 803(1) and (2) (respectively, the

       2
          “In the construction of a statute, the office of the judge is simply to ascertain and
declare what is in terms or in substance contained therein, not to insert what has been
omitted or to omit what has been inserted.” Section 1-2-101, MCA.
        3
          Notably, under the federal rules, “evidence of the defendant’s commission of
another offense or offenses of child molestation is admissible [in a criminal case in which
the defendant is accused of an offense of child molestation], and may be considered for
its bearing on any matter to which it is relevant.” Fed. R. Evid. 414(a).
                                              33
“present sense impression” and “excited utterance” exceptions to the hearsay rule). As

this Court explained the statute 96 years ago in Callahan:

       This provision was not intended to embody the statement of a rule by which
       to determine the competency of such declarations as those in question, but
       to be a mere direction that they must be deemed competent when they are
       so connected with the main transaction as to form a part of it. It states one
       of the exceptions to the general rule recognized by all the courts in
       common-law jurisdictions which requires the exclusion of hearsay
       statements, viz.: that when declarations by the participant in or an observer
       of the litigated act are so nearly connected with it in point of time that they
       may be regarded as a spontaneous, necessary incident, explaining and
       characterizing it, they may be proved as a part of it without calling the
       person who made them. The principle upon which the exception is founded
       is that the declarations were made while the mind of the speaker was
       laboring under the excitement aroused by the incident, before there was
       time to reflect and fabricate, and hence the solemnity of the oath is not
       necessary to give it probative value. . . . “The general rule is that the
       declarations must be substantially contemporaneous with the litigated
       transaction and be the instinctive, spontaneous utterances of the mind while
       under the active, immediate influence of the transaction, the circumstances
       precluding the idea that the utterances are the result of reflection or design
       to make false or self-serving declarations.”

Callahan, 47 Mont. at 410-11, 133 P. at 689 (emphases added); cf. M. R. Evid. 803(1)

(defining present sense impression as “[a] statement describing or explaining an event or

condition made while the declarant was perceiving the event or condition, or immediately

thereafter”); M. R. Evid. 803(2) (defining excited utterance as “[a] statement relating to a

startling event or condition made while the declarant was under the stress of excitement

caused by the event or condition”).

¶74    When these principles are applied to the “act or omission” language of § 26-1-103,

MCA, it is clear that the statute permits evidence of acts or omissions which are

“substantially contemporaneous with the litigated transaction” and are “so connected with


                                             34
the main transaction as to form a part of it.” For this reason, the standards “inextricably

linked to” and “inseparably related to” (also recited by the Court in ¶ 48 (citing Lozon,

¶ 12)) may be plausible interpretations of § 26-1-103, MCA; however, such language

cannot be interpreted as justifying the State’s “complete the picture” argument in the

present case. In this connection, I agree with the following observations of the Court of

Appeals in United States v. Bowie, 232 F.3d 923 (D.C. Cir. 2000):

       The “complete the story” definition of “inextricably intertwined” threatens
       to override Rule 404(b). A defendant’s bad act may be only tangentially
       related to the charged crime, but it nevertheless could “complete the story”
       or “incidentally involve” the charged offense or “explain the
       circumstances.” If the prosecution’s evidence did not “explain” or
       “incidentally involve” the charged crime, it is difficult to see how it could
       pass the minimal requirement for admissibility that evidence be relevant.
       See FED.R.EVID. 401 and 402.
              The district court invoked the “res gestae” doctrine in finding the
       April 17 evidence inextricably intertwined with the charged crime.
       [Citation.] To the extent this Latinism4 was meant to suggest that the April
       17 evidence was outside Rule 404(b) because it “explained the events” or
       “completed the story,” we do not agree. As we have said, all relevant
       prosecution evidence explains the crime or completes the story. The fact
       that omitting some evidence would render a story slightly less complete
       cannot justify circumventing Rule 404(b) altogether. Moreover, evidence
       necessary to complete a story—for instance by furnishing a motive or
       establishing identity—typically has a non-propensity purpose and is
       admissible under Rule 404(b). We see no reason to relieve the government
       and the district court from the obligation of selecting from the myriad of
       non-propensity purposes available to complete most any story.

Bowie, 232 F.3d at 928-29.




       4
        “See United States v. Krezdorn, 639 F.2d 1327, 1332 (5th Cir. 1981) (stating that
the inextricably intertwined doctrine is sometimes labeled res gestae, ‘an appellation that
tends merely to obscure the analysis underlying the admissibility of the evidence.’).”
Bowie, 232 F.3d at 928 n. 2.
                                            35
¶75    Likewise here, the appropriate course of action with respect to the transaction rule

is to apply the plain (and clearly narrow) language of § 26-1-103, MCA, and to require

the prosecution in all other instances to comply with the requirements of the Modified

Just Rule. I do not suggest that the State should be barred from ever introducing “bad

acts” evidence.   Rather, the State should simply comply with the substantive and

procedural requirements for doing so and not seek to circumvent those requirements, in a

mounting cascade of cases, by resorting to the transaction rule.

¶76    In the case at hand, the State introduced evidence of other crimes, wrongs, or acts

committed by Crosley in California, Missoula County, and Lake County. None of those

acts, however, “form[ed] part of a transaction which [was] itself the fact in dispute or

evidence of that fact.” Section 26-1-103, MCA. The facts in dispute were whether

Crosley committed specific incidents of incest and assault in Ravalli County during the

discrete time intervals alleged in the Information.5 Crosley’s acts at other times and in

other places, reprehensible as they were, simply were not the facts in dispute. Moreover,


       5
        The State alleged the following counts of incest and assault:
Charge I: Incest
      Count 1, A.P., 1989-91
      Count 2, A.P., 1991-92
      Count 3, A.P., 1992-93
      Count 4, A.P., 1993-95
      Count 5, A.P., 1995-96
      Count 6, A.P., 1996-98
      Count 7, J.P., 1991-95
      Count 8, J.P., 1995-98
Charge II: Assault on a Minor
      Count 1, A.P., 1992-98
      Count 2, J.P., 1994-98
      Count 3, R.P., 1994-98
                                            36
evidence of those acts which he committed at other times and in other places outside

Ravalli County cannot be said to be evidence of what he did in Ravalli County, except in

the sense that “Because he did it at other times and places, he must have done it on the

occasions charged here.” Such an inference, however, is not permissible for determining

Crosley’s guilt. M. R. Evid. 404(b) (“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.”).

¶77    The State’s argument that Crosley’s actions were all part of one long “transaction”

might have had merit had the prosecutor charged a continuous course of conduct. But the

prosecutor did not charge a continuous course of conduct, and the State’s attempt to

justify the evidence of uncharged misconduct committed in California, Missoula County,

and Lake County as all being part of a “transaction” is wholly without merit.

¶78    In sum, by reading into § 26-1-103, MCA, language which is not there, we permit

the introduction of evidence which M. R. Evid. 404 specifically proscribes—absent

compliance with the substantive and procedural protections afforded by the Modified Just

Rule. And, indeed, that is how the “transaction rule” is being utilized: to end-run

M. R. Evid. 404, Just, and Matt.

¶79    For these reasons, I would hold that the evidence of Crosley’s misconduct and

reprehensible acts in California, Missoula County, and Lake County were not admissible

under § 26-1-103, MCA.

¶80    This conclusion leads to the question of what, if any, remedy is appropriate here.

Crosley concedes that he did not object to the introduction of any of this evidence.

                                            37
Indeed, defense counsel stated during the final pretrial conference that the State’s Notice

of Intent to Introduce Evidence of Other Crimes, Wrongs & Acts “met the legal

standards.” Moreover, counsel offered no objections to the evidence when it was offered

by the State during trial, and counsel participated in drafting the “other acts” instruction

given by the District Court immediately prior to closing arguments (an instruction

Crosley now claims was erroneous).

¶81    Under these circumstances, Crosley contends that we should invoke our inherent

power of plain error review to review his challenges to the “bad acts” evidence. Crosley

contends that the District Court erred by not giving the instructions specifically required

by the Modified Just Rule. See Matt, 249 Mont. at 143, 814 P.2d at 56 (“At the time of

the introduction of such evidence, the trial court shall explain to the jury the purpose of

such evidence and shall admonish it to weigh the evidence only for such purposes,” and

“In its final charge, the court shall instruct the jury in unequivocal terms that such

evidence was received only for the limited purposes earlier stated and that the defendant

is not being tried and may not be convicted for any offense except that charged, warning

them that to convict for other offenses may result in unjust double punishment.”). I am

not persuaded, however, that failing to review these alleged errors would “leave in

question the fundamental fairness of the trial proceedings” as Crosley contends.

¶82    Alternatively, Crosley couches his challenge to the “bad acts” evidence in an

ineffective assistance of counsel claim. Specifically, Crosley argues that defense counsel

rendered ineffective assistance by failing to take appropriate steps to exclude this

evidence, to object to its introduction, and to request appropriate cautionary instructions.

                                            38
This argument has facial appeal; however, given the prosecutor’s notice, which was

grounded in both M. R. Evid. 404(b) and § 26-1-103, MCA, and given this Court’s

expansive—albeit erroneous—interpretations of § 26-1-103, MCA, and the “transaction

rule” over the past 15 years, I cannot agree with Crosley that his counsel’s conduct “fell

below an objective standard of reasonableness measured under prevailing professional

norms and in light of the surrounding circumstances.” Whitlow v. State, 2008 MT 140,

¶ 20, 343 Mont. 90, 183 P.3d 861.

                                        Conclusion

¶83    For the foregoing reasons, I concur in the Court’s resolution of Issue 4 and

specially concur in the Court’s resolution of Issue 1, 2, and 3.



                                                  /S/ JAMES C. NELSON



Justice Patricia O. Cotter joins the Special Concurrence of Justice James C. Nelson.


                                                  /S/ PATRICIA COTTER




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