State v. Rogers, 2013 MT 221 (Aug. 13, 2013) (7-0) (Baker, J.)
Issue: (1) Whether the district court violated Rogers’ constitutional rights by requiring him to testify to his defense of justifiable use of force prior to cross-examining the victim about her prior acts of violence against him, and (2) whether the district court erred by allowing the state to question Rogers about his prior criminal history once he testified about the victim’s prior acts of violence against him.
Short Answer: (1) No, as Rogers failed to preserve this issue for appeal, and (2) yes, this trial error was not harmless.
Reversed & remanded for a new trial
Facts: At about 3:30 one morning in April 2011, S.M. heard banging at her door. Her sometime-boyfriend, Rogers, called S.M. and asked her to let him into the house. When she refused, Rogers broke in and made it clear he wanted to have sex. S.M. described Rogers as very intoxicated. After she asked Rogers to leave, he hit her in the jaw and prevented her from calling 911. At that point, S.M. stopped resisting Rogers’ advances because she was afraid he would kill her.
Rogers “basically held [S.M.] hostage from 3:00 a.m. to 7:00 a.m.” He assaulted her numerous times. S.M. tried to get him to leave by telling him her daughter was coming to the house, but Rogers replied that he should stay so he could have sex with her and hurt both of them.
As soon as Rogers left, S.M. called 911. Deputy King reported S.M. had a split lip and bruising on her face. S.M. reported that Rogers had sexually and physically assaulted her that morning, and in November 2010.
Rogers was arrested and taken to the sheriff’s office. He denied breaking into S.M.’s house and told the deputy that sex was consensual. When the deputy noticed blood on Rogers’ hand, Rogers admitted slapping S.M. in the face, saying he did so after she made comments about his brother’s sexual offender status. The deputy filled out a 72-hour-no-contact order and gave it to Rogers. Rogers admitted he violated the order several times by calling S.M. from the jail.
Rogers was charged with sexual intercourse without consent, two counts of partner or family member assault, unlawful restraint, and four counts of violating a no-contact order. Rogers pled not guilty.
Procedural Posture & Holding: Several months before trial, Rogers gave notice he would assert a justifiable use of force defense by introducing evidence that S.M. had been charged with criminal endangerment and PFMA after allegedly biting Rogers while he was driving. The state moved in limine to prohibit such evidence without testimony from Rogers about his personal knowledge of S.M.’s past acts of violence. Rogers’ counsel indicated he would make an offer of proof outside the presence of the jury, and did not identify any constitutional implications or offer other legal argument. The state asserted that Rogers must offer his testimony to the jury, and the district court agreed. The court further held that Rogers’ testimony about S.M.’s prior violent acts toward him would open the door to Rogers’ prior criminal history. Rogers objected, and took the stand. After Rogers testified about previous times S.M. had attacked him, the prosecutor asked Rogers a series of questions about his criminal history. The jury convicted Rogers on all eight counts, and Rogers appeals. The Supreme Court reverses for a new trial on all charges.
Reasoning: (1) Rogers argues that he was forced to choose between two constitutional rights — the right to confront witnesses against him, and the right not to testify. The Court agrees with the state that Rogers failed to preserve this issue by not raising any constitutional concerns at the trial court.
(2) As a general rule, evidence of other crimes must be excluded because it is highly prejudicial. The state argues that Rogers did not object to specific questions asked by the prosecutor, and that the evidence was admissible for impeachment because Rogers testified he had not been in trouble for the past 12 years. The Court disagrees. Evidence of Rogers’ entire criminal history was not admissible under Rule 404(b) as it was likely to be used to support an inference of character or propensity and was not shown to be admissible for another purpose. The Court analyzes whether the trial error was prejudicial, using a two-step analysis from Van Kirk. Rogers’ criminal history was not used to prove an element of the offense and was not an admissible fact for the jury’s consideration. The Court concludes that there is a reasonable possibility the tainted evidence influenced Rogers’ conviction, and holds the error was not harmless.