State v. Donald P. Rogers, 306 P.3d 348

Defendant Donald P. Rogers was tried and convicted by a Missoula County jury on eight counts including sexual intercourse without consent, partner or family member assault (multiple counts), unlawful restraint, and violating a no-contact order; sentenced to 40 years with 20 years suspended.
Alleged victim S.M. testified Rogers broke into her home while intoxicated in early morning April 16, 2011, assaulted and sexually assaulted her, threatened her daughter, and left about 7 a.m.; deputies arrested Rogers that morning.
Rogers gave pretrial notice he would assert a justifiable use of force defense and sought to cross-examine S.M. about prior violent acts she allegedly committed against him (including charges the State had filed against her).
The District Court, relying on State v. Daniels, ruled Rogers could not cross-examine S.M. about her prior violent acts unless Rogers first testified and laid the foundation for his self-defense claim before the jury.
During his testimony Rogers described S.M. as violent and recounted prior attacks on him; the prosecution was then permitted to cross-examine Rogers about his extensive prior criminal history (including prior rape and violent convictions some of which had been reversed).
The Montana Supreme Court reversed and remanded for a new trial, concluding the court’s admission of Rogers’s prior criminal history under these circumstances violated M. R. Evid. 404(b) and likely prejudiced the jury.

Issue	State's Argument	Rogers's Argument	Held
Whether the court improperly required Rogers to testify before cross-examining S.M. about her prior violent acts	Daniels allows the defendant must testify and lay foundation before character evidence can be used; Rogers waived a constitutional objection and intended to testify	Ruling forced an unconstitutional choice between right to not testify and right to confront—precluding cross-examination unless he testified	Waiver: Rogers failed to timely object on constitutional grounds; Court declined to consider that constitutional claim on appeal
Whether the court erred by permitting the State to cross-examine Rogers about his full criminal history after he testified about S.M.’s prior violence	Evidence was proper impeachment and Rogers had opened the door by testifying about the parties’ violent history; any error was harmless	Admission of extensive prior crimes (including reversed convictions) violated M. R. Evid. 404(b) and prejudiced the trial	Reversed: admission of Rogers’s criminal history was not justified under 404(b), was highly inflammatory, and there is a reasonable possibility it affected the verdict — new trial ordered

State v. Daniels, 265 P.3d 623 (Mont. 2011) (defendant must generally testify and lay foundation before offering evidence of victim’s character for violence)
State v. Stewart, 291 P.3d 1187 (Mont. 2012) (framework for reviewing evidentiary rulings and assessing cumulative evidence)
State v. Van Kirk, 32 P.3d 735 (Mont. 2001) (two-step harmless-error analysis distinguishing structural from trial error and the cumulative-evidence test)
State v. Derbyshire, 201 P.3d 811 (Mont. 2009) (inadmissibility and prejudicial quality of prior convictions/probation evidence under Rule 404(b))
State v. Peplow, 36 P.3d 922 (Mont. 2001) (reversal where prior-offense evidence admitted and no showing it was harmless)
State v. Nolan, 66 P.3d 269 (Mont. 2003) (highly inflammatory prior-conduct evidence requires reversal when prejudicial)
State v. Gowan, 13 P.3d 376 (Mont. 2000) (policy basis for excluding prior bad acts to avoid conviction based on character or propensity)