                                          No. 01-069

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2003 MT 55


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

DONNIE NOLAN,

              Defendant and Appellant.




APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and for the County of Yellowstone, Cause No. DC-99-330
                     Honorable G. Todd Baugh, Judge Presiding


COUNSEL OF RECORD:

              For Appellant:

                     Kristina Guest, Assistant Appellate Defender, Helena, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Jim Wheelis, Assistant
                     Attorney General, Helena, Montana

                     Dennis Paxinos, County Attorney; Melodee Hanes, Deputy County
                     Attorney, Billings, Montana


                                                  Submitted on Briefs: January 31, 2002

                                                             Decided: March 25, 2003

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Donnie Nolan appeals from a judgment entered by the Thirteenth Judicial District

Court, Yellowstone County, after a jury found him guilty of two counts of bail-jumping. We

reverse the judgment and remand for proceedings consistent with this Opinion.

¶2     We address the following issues:

¶3     1. Did the State of Montana establish the element “set at liberty by court order” of

the Count II bail-jumping charge?

¶4     2. Did the prosecutor engage in impermissible cross-examination and submit

inadmissible rebuttal evidence?

¶5     Nolan failed to appear for a criminal trial against him set for May 4, 1999. He was

arrested on a bench warrant later that day, and trial–at which he was convicted of resisting

arrest and criminal endangerment–was held two days later. Nolan’s failure to appear for trial

on May 4, 1999, is the basis for the Count I bail-jumping charge in this action.

¶6     Nolan then failed to appear for his July 12, 1999, sentencing following his conviction

at his May 1999 trial. He was arrested in California five months later on a bench warrant,

returned to Montana, and sentenced. (We affirmed his conviction in State v. Nolan, 2003

MT 13, 314 Mont. 47, 62 P.3d 1118.) In June of 2000, the District Court granted the State

leave to amend the Information in this action by adding a second count of bail-jumping, for

Nolan’s failure to appear for his July 12, 1999, sentencing (Count II).




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¶7     The District Court denied Nolan’s motion to sever trial of Counts I and II. Nolan

represented himself at his three-day jury trial, at the end of which the jury found him guilty

on both counts of bail-jumping.

                                           Issue 1

¶8     Did the State of Montana establish the element “set at liberty by court order” of the

Count II bail-jumping charge?

¶9     Due process requires the State to prove all elements of a charged criminal offense.

Sullivan v. Louisiana (1993), 508 U.S. 275, 277-78, 113 S.Ct. 2078, 2080, 124 L.Ed.2d 182,

188. We review the sufficiency of the evidence to determine whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the elements of the offense beyond a reasonable doubt. State v. Granby (1997), 283

Mont. 193, 199, 939 P.2d 1006, 1009.

¶10    Bail-jumping is defined at § 45-7-308, MCA:

               A person commits the offense of bail-jumping if, having been set at
       liberty by court order, with or without security, upon condition that he will
       subsequently appear at a specified time and place, he purposely fails without
       lawful excuse to appear at that time and place.

Nolan argues that the State did not establish that he was “set at liberty by court order” when

he failed to appear for sentencing in July of 1999.

¶11    The State contends that State v. Snaric (1993), 262 Mont. 62, 862 P.2d 1175, applies.

In Snaric, this Court held that the State had proven the elements of bail-jumping in the face

of Snaric’s claim that he had not been ordered to appear for a change of plea hearing. The



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State says that, in the present case, the court’s setting of a sentencing date was a court order

to appear.

¶12    The State’s assertion does not address, however, whether Nolan was set at liberty by

a court order. The element of “set at liberty by court order” was not at issue in Snaric. In

fact, the Information against Snaric stated, in relevant part, that Snaric had “been set at

liberty by the order of District Court Judge Ed McLean upon condition that he would

subsequently appear . . . .” Snaric, 262 Mont. at 66, 862 P.2d at 1178. We conclude that

Snaric does not control.

¶13    At the trial in this matter, the Yellowstone County Clerk of District Court testified

that, at the conclusion of the verdict in Nolan’s May 1999 trial, the District Court specifically

commanded, “The defendant is remanded to the custody of the Sheriff.” A legal assistant

to the Yellowstone County Attorney testified Nolan was mistakenly released from the jail

prior to his sentencing, apparently because jail personnel saw that he had earlier posted bond

and did not see that a second bond had been imposed on the bench warrant issued when he

failed to appear for trial. The District Court did not sign an order setting Nolan at liberty,

and Nolan did not post bond.

¶14    We conclude that as to Count II, the State did not establish that Nolan was “set at

liberty by court order,” the first element of the offense of bail-jumping, as a matter of law.

We conclude, therefore, as a matter of law, that no rational jury could have found the

elements of the offense beyond a reasonable doubt. We reverse Nolan’s conviction on Count

II and direct the District Court to dismiss that charge.


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                                            Issue 2

¶15    Did the prosecutor engage in impermissible cross-examination and submit

inadmissible rebuttal evidence?

¶16    Evidence of a defendant’s character or character trait generally is not admissible in

a criminal case to prove that the defendant acted in conformity with that trait. Rule 404(a),

M.R.Evid. If a defendant first opens the door by entering evidence of good character,

though, the State may present rebuttal evidence of bad character. See State v. Gowan, 2000

MT 277, ¶ 11, 302 Mont. 127, ¶ 11, 13 P.3d 376, ¶ 11. The rebuttal evidence must be

legitimate and relevant. State v. Eklund (1994), 264 Mont. 420, 429, 872 P.2d 323, 329. We

review a district court’s evidentiary rulings for abuse of discretion. Gowan, ¶ 9.

¶17    In presenting his defense at trial, Nolan testified that the reason he did not appear for

his May 4, 1999, trial (Count I) was that he was taking prescription medication for pain from

a rotten tooth and slept through the time he was to be in court. He testified that he did not

appear for sentencing (Count II) because he feared he was facing 120 years in prison, he

loved his children and did not want to leave them and he did not want to leave a job he had

just accepted as a used car salesman.

¶18    On cross-examination, and over Nolan’s objection, the prosecutor asked Nolan to

“[t]ell me every one of your odd jobs,” and pursued an extended series of questions

attempting to elicit from Nolan every job he had had in addition to car salesman. Nolan

answered that he had also had odd jobs including lawn mowing, detailer, drywaller and

painter, and did “[j]ust about whatever I could just about get my hands into” because he had


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“little mouths to feed and bills to do.” The prosecutor inquired as to whether Nolan had done

anything illegal to make money, and Nolan testified that he had not.

¶19    The prosecutor also cross-examined Nolan extensively–again, over Nolan’s

objection– about his personal relationships. She began by questioning him about his

children. In response to a series of questions, Nolan admitted he has five children under the

age of 12 with four different women, none of whom he had married. The prosecutor

questioned Nolan about having relationships with several women at one time and that two

of the women were pregnant at the same time. Nolan also admitted that he had not paid any

child support through the courts, but stated he had not been ordered to pay any and that he

had supported his children directly through their mothers. At one point, Nolan objected to

questioning about his relationship with a certain woman on grounds that he had no children

with her. The prosecutor replied, “Well, she would be one of the few that hasn’t had one of

your kids.”

¶20    On rebuttal, over Nolan’s objection, the prosecution presented the testimony of a

woman who stated she had worked as a prostitute in 1999 and that Nolan was her pimp. The

woman testified that her income while working as a prostitute had been about $500 per night,

all of which she turned over to Nolan in exchange for “[p]retty much whatever I wanted.”

She had since “cleaned up” and obtained employment in a meat packing plant.

¶21    The State contends Nolan opened the door to the prosecution’s cross-examination and

rebuttal by his assertions that he was a decent man and member of the community who cared

about his family. It points out that Nolan offered evidence on his character that was broader


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than the crime charged, citing Michelson v. United States (1948), 335 U.S. 469, 484, 69 S.Ct.

213, 222, 93 L.Ed. 168, 178.

¶22    Nolan contends the prosecutor’s cross-examination and rebuttal evidence forced him

to defend his lifestyle choices about the number of women he slept with, the number of

children he had, his financial care of his children and the allegation that he worked as a

pimp. Nolan states the prosecutor thus impermissibly turned a bail-jumping trial into a trial

of his morals.

¶23    On this record, we agree with Nolan. The State’s right to a full cross-examination of

a defendant’s character traits, once placed at issue, is not limitless. Gowan, ¶ 18. “[T]he

accused’s entire life should not be searched in an effort to convict him.” Gowan, ¶ 18

(quoting State v. Heine (1976), 169 Mont. 25, 29, 544 P.2d 1212, 1214). In this case, the

prosecutor went beyond permissible cross-examination and rebuttal and ended up trying

Nolan’s character. We conclude the District Court abused its discretion in failing to sustain

Nolan’s objections to these lines of questioning.

¶24    Once error has been established, we conduct a two-step analysis to determine whether

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

The first step in the analysis is an inquiry as to whether the error is categorized as structural

error or trial error. State v. Van Kirk, 2001 MT 184, ¶ 37, 306 Mont. 215, ¶ 37, 32 P.3d 735,

¶ 37. Erroneous admission of evidence, such as in this case, is a classic example of trial

error. See Van Kirk, ¶ 48. Trial error is not presumptively prejudicial and therefore not

automatically reversible. It is subject to review under our harmless error statute, § 46-20-


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701(1), MCA, which provides that “[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.” See Van Kirk, ¶ 40.

¶25    The State contends the evidence of both Nolan’s guilt and his lack of credibility was

so overwhelming that any error was harmless. However, in Van Kirk, we rejected the

“overwhelming evidence” test, noting that this test had “eclipsed the more substantive

inquiry of whether the erroneously admitted evidence might have contributed to the

conviction,” in favor of a “cumulative evidence” test. Van Kirk, ¶¶ 34, 43. We further

explained that in cases where tainted evidence was not introduced as proof of an element of

the crime charged, the State must nonetheless demonstrate that, qualitatively, there was no

reasonable possibility that the tainted evidence might have contributed to the defendant’s

conviction. Van Kirk, ¶ 46. Here, the tainted evidence was not introduced in the State’s

case-in-chief, but in the cross-examination of Nolan and in rebuttal, ostensibly to refute his

character evidence and impeach his credibility. Accordingly, the State’s burden is to

demonstrate that the evidence did not reasonably contribute to Nolan’s conviction.

¶26    The evidence adduced by the prosecution, over Nolan’s objection, concerning his

personal relationships and employment was highly inflammatory and prejudicial. In a trial

that hinged on Nolan’s credibility, we are persuaded that a significant possibility exists that

the qualitative effect of the prosecutor’s improper cross-examination and rebuttal testimony

contributed to his conviction. We therefore reverse Nolan’s conviction on Count I and

remand for further proceedings relating to that charge.


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¶27    Because we have reversed Nolan’s conviction on Count II and directed the District

Court to dismiss that charge, and also have reversed and remanded Count I for retrial, we

need not address the third issue raised by Nolan, concerning whether he was prejudiced by

joinder of the two counts.

¶28    Reversed and remanded.



                                               /S/ JIM RICE


We concur:


/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART




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