*1 MONTANA, STATE OF Appellee, Plaintiff v. CROSLEY, LEE RICHARD Appellant. Defendant No. DA 07-0443. February Submitted Briefs 2009. April Decided 2009. MT
For Hon. Plubell, Attorney General, Helena; George H. Tammy Assistant William Corn, Attorney; Fulbright, Deputy County County Ravalli Attorney, Hamilton. Opinion
CHIEF JUSTICE MCGRATH delivered the of the Court. Crosley (Crosley) appeals Lee his conviction in the Richard ¶1 Court, County, Ravalli of seven counts Twenty-First Judicial District incest, minor, and jumping. three counts of assault on a bail We part, re-sentencing. affirm in vacate in and remand for part, appeal restate the issues on as follows: We ¶2 discretion it denied Whether the District Court abused its when ¶3 (Aronson). juror H.J. Aronson Crosley’s challenge potential for cause of admitted evidence of other properly Whether the District Court ¶4 County under the transaction rule. acts of incest outside of Ravalli counsel. Crosley Whether was denied effective assistance of Whether the District Court erred in sentencing Crosley pursuant to the at law effect the time of sentencing rather than at the time of the offenses.
BACKGROUND The evidence at trial Crosley indicated that abused his three oldest children from 1990 to family frequently while the moved residences, generally living in Ravalli County, Montana. Daughters, J.P., A.P. and son, were born in 1986 R.J., was born in 1991. Crosley was not charged with abusing youngest his daughters, H.P., R.P. and born in 1994 and Crosley’s ex-wife, E.P., provided a chronology of where the family lived during this time. Crosley’s children testified at trial abuse, about his escalating using the family’s frequent moves and births of additional children to frame particular recollections of charges against abuse. The similarly were by broken down timeframes corresponding to residences where the abuse occurred. A.P. testified that Crosley began sexually abusing her when she
was approximately four. Initially the abuse consisted of fondling and oral seven, sex. When A.P. was six or the abuse escalated to sexual intercourse, nine, the time she was the abuse included anal sex. *3 A.P. testified that the abuse continued until she disclosed it in 1998 when she disclosure, was 12. After A.P.’s J.P. recalled her father had touched her inappropriately as well. J.P. fondling, remembered but did not recall any instances of sexual intercourse or oral sex. A.P. testified that Crosley was the main disciplinarian house, in their and the primary form discipline spanking. Crosley was initially spanked the children hands, with began his using wooden spoons and an electrical got cord as the children Crosley older. hit both R.J. and J.P. cord, with the plug end of a sometimes on their bare skin. The children testified Crosley them, them, shoved kicked and hung them upside down their ankles. A.P. also testified that Crosley used pliers fingers to twist her they until cracked. Crosley’s
¶9 sexual abuse of A.P. started while the family lived in an apartment on Corvallis, Second Street in Montana. A.P. recounted that while she playing was dress up bride, and pretending to be a Crosley gave gold her a little ring, had her repeat marriage vows, and told her she was his Crosley wife. reminded A.P. that she was his wife throughout her childhood. The first instances of sexual abuse at the Second apartment Street Crosley involved putting A.P.’s hand on his penis, Crosley touching genitals, A.P.’s Crosley and forcing A.P. to that the three times. A.P. testified him at least oral sex on
perform Marcus Street in family moved to continued when contact sexual Crosley teaching her only memory was Hamilton, although her vivid Heights where family to Charlos kiss.” The moved how to “French A.P. penis. had her stroke his genitals A.P.’s Crosley fondled garage of a car in the where being in the back seat testified about sister-in-law, Crosley’s sex on him. perform her to oral Crosley forced on one garage into the that she walked Tonya Crosley, testified Crosley. of a vehicle with A.P. in the back seat occasion and found during the first time intercourse with A.P. for Crosley had sexual family living in the Charlos at the time the tripa to California her get away, Crosley slapped A.P. tried Heights house. When bleeding A.P. recalled and knocked her offthe bed. across the face seven days. She was about vaginal in her area for several soreness years old. sexual abuse religion keep and social isolation to his Crosley used to convince A.P. Crosley the Bible numerous times
a secret. invoked relationship their sexual and that nothing wrong there was they not tell her Crosley assured A.P. that should she was his wife. okay she did not think it was relationship mother their because about wife, angry be with A.P. and love to have more than one and she would Crosley convinced A.P. that her already her even less than she did. and that siblings her as much as she loved A.P.’s mother did love only really he loved her. Montana, family moved around abuse continued as the sexual County in and Ronan for several
living outside of Ravalli Missoula Crosley’s of A.P. escalated to anal intercourse years. sexual abuse bleeding. During extreme embarrassment and Ronan. This caused A.P. time, Crosley paternal grandparents and A.P. often visited her this to multiple the sexual abuse continued. A.P. testified Corvallis where sex, intercourse, genital touching oral in an incidents of sexual house, as well as three grandparents’ at her upstairs bedroom on him in her Crosley perform when made her oral sex occasions grandparents’ barn. Ronan, Crosley family seeing lived in A.P. recalled While penis. Crosley began J.P.’s hand on his put
fondle J.P. and A.P. A.P. the sexual contact between him and allowing J.P. to watch *4 up dress girls playing one incident when the were recounted Crosley up tied J.P. with strips princesses of cloth to mimic Indian A.P. Crosley her to had sex with strips, forcing some of the watch Crosley, did having intercourse with she J.P. did not recall ever While remember how he fondle her would under her dress while she sat in lap. his the family Hatchery When moved to Fish 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 Crosley’s wall where sexual intercourse with A.P. “fairly regular became a occurrence.” J.P. recounted at Crosley trial that she once found and A.P. naked on a space mattress the crawl in the Crosley basement. also hung both A.P. by and J.P. their ankles ceiling from the in the basement. A.P. Crosley also testified that pliers fingers used to twist her they until cracked this basement. Crosley children physically abused his multiple occasions. He particularly Crosley repeatedly violent to R.J. spanked him with plug cord, end of a lamp walls, shoved him into picked up him
by the head. J.P. recounted being ground thrown to the and kicked repeatedly Crosley once when complete she did not a task to his liking. family moved to the Main Street house in Corvallis where all
forms of sexual Crosley abuse continued. would drive down their church parking lot where he had A.P. sit on his in a lap skirt or dress without underwear and fondle her as she read the Book ofPsalms from the Bible. A.P. invited friends to spend night to celebrate her 12th birthday Crosley when was scheduled to be out of Crosley town. returned unexpectedly and ordered A.P. to him follow to his bedroom where he had sex with her while her guests were in the living room. J.P. remembered that emerged A.P. from the bedroom looking sad and dejected. Crosley then called J.P. into the bedroom put where he his penis in her panties. finally A.P. Crosley’s disclosed years of sexual abuse to her
mother. On prior one occasion nine, when she was about her mother Touch, read her a “Good Bad Touch” book and A.P. disclosed that Crosley had “rubbed” on her. This led her mother to confront and implement “modesty rules,” some however the abuse resumed. effectively A.P. Crosley’s disclosed abuse after her 12th birthday, when began she hearing Crosley telling sister, younger R.P., her the same things her, he used to tell that her anymore mother did not love her because R.P. longer was no baby family. of the After A.P.’s disclosure, initially E.P. tried things to work out pastor’s with their help, however soon went to the authorities. Detective Peter Clarkson with the County Ravalli Sheriffs Officeinterviewed regarding A.P. *5 1998, in 2006. again in and
sexual abuse 1999, charged by information with Crosley August On Crosley consent with A.P. incest, sexual intercourse without involving 25,1999. Crosley August guilty and pled with counsel appeared his omnibus appear failed to for recognizance, on his own was released his arrest on November was issued for hearing, and a bench warrant August, 2006. until his arrest Crosley fugitive was a filed an Amended Information was Following investigation, a renewed incest. A second Amended seven counts of charging with 11, 2006, charging Crosley with filed on December Information was incest, corresponding periods to time associated eight counts of victim; counts child was the three where the abuse occurred which child; minor, jumping. a one for each and bail of assault on a of Intent to the State filed Notice On November (Notice). Crimes, & The Wrongs of Other Acts Introduce Evidence “very the State would offer evidence of Notice indicated Sacramento, California, first where Defendant significant trip intercourse,” in from sexual assaults to sexual elevated his abuse that occurred in physical to evidence of sexual and abuse addition The relied and Lake Counties between 1993 and 1995. State Missoula rule, 26-1-103, MCA, and in “an abundance of upon the transaction 404(b). a Modified Just Notice under M. R. Evid. On provided caution” trial, March defense counsel stated his belief day the first judge noted legal that the Notice “would have met the standards.” being objection, he and “there no had reviewed Notice inquire notice is found to be sufficient and the State is allowed to into during the trial.” the areas covered that notice dire, prosecutor, Fulbright, questioned Mr. During voir potential juror Aronson: Department
MR. FULBRIGHT: A detective with Sheriffs by the name of Pete Clarkson. anybody
Does know Detective Clarkson or had occasion to him. have run with
Okay. got go my I’ve cheat sheet here. Mr. Aronson. PROSPECTIVE JUROR: Yes. you
THE COURT: Do Detective Clarkson? know PROSPECTIVE JUROR: Yes. you
MR. FULBRIGHT: How do know him? I work for the professionally. PROSPECTIVE JUROR: Just he us. Forest Service and works for here, long you MR. FULBRIGHT: So he had a career knew Service, that, you had a career with the it looks long Forest like. guys You a few path crossed times?
PROSPECTIVE JUROR: Yes. question really MR. FULBRIGHT: So the that’s relevant going up this: Detective Clarkson is to be here for a few minutes trial, testifying during question this was involved in this case. The you testimony would be: Detective Clarkson’s versus other such, people’s testimony you the fact that know Detective manner, you him, Clarkson in whatever or however little know your ability testimony would that affect to view his the same as people’s testimony? other give
PROSPECTIVE JUROR: I would a lot of credibility to his *6 testimony knowing from him.
MR. Okay. right. FULBRIGHT: All you Would be able to listen his testimony and then some other witnesses, maybe him, even people disagreed that with let’s suppose happens, that disagrees someone with Detective Clarkson, and be able to set aside the fact that one of those was B, Detective say Clarkson and one is let Witness me look at weigh the facts and keep open those out and an mind? Somewhat, yeah. PROSPECTIVE JUROR: I’d tend to believe Clarkson, mind, Mr. but I’d try keep open guess. an I MR. FULBRIGHT: you keep open mind, Could an look at the facts?
PROSPECTIVE JUROR: Uh-huh.
MR. FULBRIGHT: I appreciate your candor. counsel, Eschenbacher, Defense immediately Mr. questioned
Aronson at the start of his voir dire:
MR. Aronson, you ESCHENBACHER: Mr. you said know Detective Clarkson.
PROSPECTIVE JUROR: That’s correct.
MR. you actually ESCHENBACHER: And testimony value his very strongly, you say didn’t that? Yes,
PROSPECTIVE JUROR: I would. MR. ESCHENBACHER: If it came down to Detective Clarkson saying B, A saying and an unknown witness you going who are believe? Probably
PROSPECTIVE JUROR: Mr. Clarkson. MR. ESCHENBACHER: your knowledge And that’s based on of him. He’s a decent gentleman. long He’s been around a time. neutral what that, totally if it was
But based other, you they contradicted each information was but in line Detective automatically have to follow would Clarkson? JUROR: I would tend to believe him before I’d
PROSPECTIVE very somebody I didn’t know because I know he’s a believe my opinion. man in credible attacking credibility. his
MR. ESCHENBACHER: We’re to if testimony mostly it’s when it comes down exploring We’re jury something you’re going said into Detective Clarkson and someone else had another witness had said room to deliberate jurors something, you you do think would be fair to the other it, you just say worry Pete Clarkson said I don’t need to would about it? can on what People
PROSPECTIVE JUROR: make mistakes saw, that, course, I they they just think too. I’d consider lie on the don’t think that Pete would witness stand. I it again, sorry, MR. ESCHENBACHER: And I'm don’t want I’m saying people saying maybe misconstrued. I’m not would lie. opinion a difference of or difference of observation. Okay.
PROSPECTIVE JUROR: you, you MR.ESCHENBACHER: Would that affect how would it, differently than maybe look at Pete would look at it somebody else? people
PROSPECTIVE JUROR: I would look at it from what have said. Okay. you
MR. ESCHENBACHER: But if looked at it from think said, you you me the they give impression what both carry weight; that Detective Clarkson would more would word *7 that fair? be Honestly, guess say yes.
PROSPECTIVE JUROR: I I’dhave to mind, you you MR. ESCHENBACHER: With that in do think absolutely can fair Richard if Detective Clarkson said be something against Richard? depend JUROR: It have to on what it
PROSPECTIVE would was, was, guess, opinion something what he said. If it I an versus too, you weigh facts, guess. have to versus I opinions that— you But if had-if it came to that MR.ESCHENBACHER: down difference, you really you give hair breath’s do think couldn’t sides, you’d you probably fair shake to both do think fall over on the side-
PROSPECTIVE JUROR: I think I would probably followPete’s lead. Again,
MR. ESCHENBACHER: I’m trying pick you, not just I’m trying to make sure that get panel we as fair a possible, great guy, and Pete Clarkson is a if you’re biased Pete, you may towards as fair be towards Richard.
youDo understand where I’m going? Yeah, I
PROSPECTIVE JUROR: understand. MR. Do you you ESCHENBACHER: think could be fair to Richard?
PROSPECTIVE I guess, know, JUROR: think so. I you you really don’t until you they’re know know what saying. both
MR. you ESCHENBACHER: But you realize won’t know what they’re saying both you’re picked unless for a jury.
PROSPECTIVE JUROR: I realize that.
MR. ESCHENBACHER: So if you’re picked for a jury you don’t know until after Pete Clarkson testifies that that could abe problem for us.
PROSPECTIVE JUROR: I Pete, would have to believe somebody know, I honesty. all Sure,
MR. ESCHENBACHER: sure. Based mind, on that in do you think it would be appropriate you sat jury on this you not, would rather because you might be called for another jury might where Pete Clarkson called, not be it might be easier you for totally be fair to both sides.
PROSPECTIVE I guess JUROR: would Obviously, you that. if you’re-I don’t know people, mean people there’s I know that I would tend not to believe.
MR. Oh, yeah. ESCHENBACHER: PROSPECTIVE JUROR: I’d give a little more reasonable doubt, but Pete’s not one of try them. And I’d to be unbiased.
MR. you ESCHENBACHER: Would have to work at it? PROSPECTIVE really JUROR: We’re splitting hairs here. MR. I ESCHENBACHER: know. I have a tremendous responsibility to Richard.
PROSPECTIVE JUROR: In all honesty, if Pete and somebody else that I didn’t know stated things two differently, I would believe Pete. really say. That’s all can I
MR. ESCHENBACHER: you Would mind if I judge asked the if you can be excused? Would that problem you? be a No,
PROSPECTIVE JUROR: your that’s prerogative. *8 Honor, I ask that Mr. Your would MR. ESCHENBACHER: on his giving to be excused for cause based Aronson be allowed understand, fairly, giving weight I extra to weight, extra and potential a witness. possible Question.
THE COURT: Honor, guess I I heard Mr. Aronson MR. FULBRIGHT: Your fair, recognizes people he he knows but a lot say he could be here, valley so I think he answered people people know in the weighing testimony. he fair in out the could be Well, sir, you every THE understand that witness is COURT: oath, they’re the truth once under correct? presumed speak to people JUROR: I understand that are PROSPECTIVE speak they always the truth. I don’t believe that do presumed know, oath, you I tend to I they’re when under so would take what know, weigh a that in. person about you willing to,
THE But if there some COURT: would be testimony, you willing difference in the would be to consider the opposing testimony any surrounding circumstances one or the other? that would be consistent with consistency, yes. PROSPECTIVE JUROR: I would look for that, that, you having THE COURT: And if found done perhaps testimony another witness’s is more with consistent surrounding Clarkson, you circumstances than Officer would be you? that leads willing go where very heartily, JUROR: I look at that PROSPECTIVE would yes. you willing
THE COURT:And would be to base verdict on solely you jury on the evidence as find it and the instructions?
PROSPECTIVE JUROR: Correct. Well,
THE COURT: I don't believe that cause has been shown. you, MR. Thank Your Honor. ESCHENBACHER: dire, during Later voir defense counsel noted how incest is particular, relayed many different than other crimes. In counsel how thought charged would ask him whether he a defendant with people innocent, representing murder was but when he mentioned a incest, ask, charged people defendant with would “how could he?” jury many then pool feeling, Defense counsel asked how had that up many jurors, including “how could he?” Counsel followed Aronson, very “I responded, thing who think it’s a horrible and it’s distasteful, did it not.” person but we have know whether trial, During four-day presented the State 22 witnesses. In mother, addition to the children and their included witnesses investigators, family and friends and who observed various incidents corroborating aspects testimony. of the children’s jury Crosley guilty charges except found of all for one count *9 of incest alleging Crosley occurring sexual contact between and J.P. convictions, sometime and 1995. between 1991 For the incest the court Crosley sentenced concurrent life six sentences and one consecutive sentence, 50-year years with 25 all suspended, to be served without parole eligibility completed phases until he all available of sexual Crosley appeals. offender treatment.
STANDARD OF REVIEW
challenge
This Court reviews a district court’s denial of a
for cause
¶25
to a prospective juror
Robinson,
for abuse of discretion. State v.
2008
34, 7,
300,
MT
341 Mont.
¶26 the admissibility crimes, of evidence of other wrongs, or acts for abuse of Marshall, 198, 11, discretion. State v. 395, 2007 MT 338 Mont. 165 ¶ P.3d 1129. Ineffective assistance ofcounsel claims are mixed questions
¶27
offact
and law that we
Herrman,
149, 18,
review de novo. State v.
2003 MT
¶
198,
316 Mont.
¶28
for
we determine
the
whether
sentence is within statutory parameters.
Tracy,
State v.
128, 12,
MT
220,
2005
327 Mont.
DISCUSSION Whether the District Court abused its discretion when it denied Crosley’s challenge potential juror cause Aronson. for A criminal right defendant’s to trial an impartial jury guaranteed by the Sixth Amendment to the United States Constitution II, and Article Section 24 ofthe grounds Montana Constitution. The for challenging potential jurors for cause in a criminal statutorily trial are provided 46-16-115(2),MCA.A potential juror may be excused for cause juror when district court determines that a has “a state of mind in reference to the parties case or to either of the that would
234 and without acting impartiality from with entire juror prevent prejudice rights party.” either Section 46-16- to the substantial 115(2)0'),MCA. occurs when a error automatic reversal requiring Structural by denying challenge a defendant’s
district court abuses its discretion
cause,
peremptory challenge
defendant uses a
to dismiss
peremptory
all
challenged juror, and the defendant exhausts
available
59,
62-63,
113,
Good,
v.
2002 MT
309 Mont.
43
challenges. State
¶¶
case,
Crosley’s challenge
In
the District Court denied
P.3d 948.
this
cause, Crosley
peremptory challenge
then used a
Aronson for
Aronson,
peremptory
exhausted all available
dismiss
Thus,
challenges.
this issue turns on whether the District Court
denying Crosley’s challenge
for cause.
abused its discretion
potential juror
voir dire examination of a
raises serious
When
juror’s ability
impartial,
juror
doubts
to be fair and
about
Robinson,
Hausauer,
8;
cause.
State v.
2006
should be removed for
¶
Golie,
137, 149
895;
91,
MT
335 Mont.
P.3d
State v.
2006 MT
¶
Richeson,
113,
8,
69,
95;
14,
332 Mont.
134 P.3d
State v.
2004 MT
¶
¶
958;
Heath,
58,
10,
MT
89 P.3d
State v.
¶
947;
Freshment,
Mont.
89 P.3d
State v.
2002 MT
*10
154,
potential juror’s
Mont.
whose
bias is
7. common
¶
potential juror
opinion”
form of actual bias occurs when a
has a “fixed
Robinson,
9; Heath,
guilt
begins.
of a defendant’s
before trial
16
¶
¶
(concluding
opinion
guilt”
argument
that the “fixed
of
rule is but one
statutory
ground
that can be asserted under the
“state of mind”
for
cause).
challenges
examples
opinion”
guilt
for
Most
of a “fixed
of
potential jurors
express difficulty applying presumption
involve
who
a
Braunreiter,
of innocence to a criminal defendant. State v.
2008 MT
(district
24-25,
59,
197,
Mont.
235
unresolved
subject”
DUI
a
him
to
accident in which
“sore
due
driver,
that he
injured by
he was
a drunk
and further indicated
did
“passionate
negatively impact
know if his
concern” about DUI would
defendant); Good,
(potential
jurors’
53
adherence to belief that a
¶
victim
question
sexual abuse
would not lie demonstrated serious
about
of
ability
impartiality
presumption
to act with
and afford defendant
innocence);
DeVore,
340,
15-24,
325,
292
State v.
1998 MT
Mont.
¶¶
(district
by failing
expresses inability an by stating to follow the law an actual bias directly related to “an issue critical to the outcome of the case.” (district Freshment, failing court abused its discretion in ¶ potential jurors dismiss two who stated an actual regarding bias 16, whether defendant could have a age reasonable belief victim was which was legal defense asserted for sexual intercourse without consent; jurors both stated they acquit they could not even if found years defendant victim had a reasonable belief that was at least 16 old). contrast, “In prospective juror if a merely expresses some concern remaining impartial,
about
lay
but believes he can
aside
concerns
fairly weigh
evidence,
the district court
not required
juror
remove the
Robinson,
for cause.”
10. This Court has affirmed
¶
a district court’s
challenges
denial of
for cause of potential jurors who
having
admitted
innocence,
doubts about a
responded
defendant’s
they
could set aside their concerns.
Normandy,
State v.
2008 MT
23-25,
¶¶
Mont.
actual bias While there was much about ability fairly weigh testimony Aronson’s to from Detective Clarkson against testimony, significantly type other this is different than the improper juror’s ability state ofmind that raises serious doubts about a to fair and impartial. be This Court has held that a district court by denying challenge abused its discretion for cause when a juror difficulty affording potential expressed a criminal defendant the of innocence or cannot presumption properly apply Beyond law. that our review has been more deferential. give credibility Aronson admitted that he would a lot of him. testimony
Clarkson’s because he knew But when further asked facts, out, whether he could look at the them weigh keep open an mind, responded, yeah. Aronson “Somewhat tend I’d to believe Mr. Clarkson, mind, try keep open guess.” prosecutor but I’d an I followed up response clarifying, you keep open this “Could an mind, replied affirmatively, look at the facts?” Aronson “Uh-huh.” While these lack the perhaps answers conviction that defense counsel prefer, they ability would do not raise serious doubts about Aronson’s impartial. to be fair and questioning any Defense counsel’s failed to serious raise doubts ability to fair and impartial, despite persistent
about Aronson’s be exploration impacts weighing testimony strongly. Clarkson’s consistently acknowledged credibility, Aronson valuing Clarkson’s questioning weighing fairness, when shifted from abstract-evidence Aronson’s did not reveal actual counsel answers bias. Defense *12 jurors during asked whether Aronson would be fair to other just deliberations or whether he would defer to Clarkson. Aronson saw, replied, “People they they can make mistakes on what think too. that, course, just I’d consider but I don’t think that Pete [Clarkson] attempted clarify would lie on the witness stand.” Defense counsel to lie, that the issue was whether Clarkson would but how differences opinion between Clarkson and other witnesses would affect judgment. “I if responded, Aronson’s Aronson would look at from what have said.” people These answers demonstrate that Aronson would not blindly accept testimony Clarkson’s in the face of differences of fact, finally In opinion. dispositive when asked the whether question, he could absolutely Crosley, be fair to Aronson “It replied, would have was, depend was, to on what it what he said. If it I guess, opinion an something that-you versus weigh opinions facts, too, have to versus I guess.” repeated Defense counsel later dispositive question whether he could be fair to Crosley, answered, and Aronson “Ithink so. guess, you know, you I really don’t know you they’re until know what saying.” both Later Aronson indicated he “try would to be unbiased.” any We cannot find actual bias in Aronson’s responses consistent regarding might weigh how he credibility witness when such responses never raise serious doubts ability about his to be fair and impartial Crosley. to agree We with the prosecutor’s response to defense challenge counsel’s to Aronson cause: “I heard Mr. say Aronson he fair, could recognizes be and he he people, knows people lot of people here, know in valley so I think he answered that he could weighing be fair in out testimony.” Indeed Aronson never said that he could not be fair impartial to Crosley. While Aronson acknowledged that he would find testimony Clarkson’s more credible know, than someone he did not he allowed that Clarkson could make mistakes and weigh that he would heartily. evidence Later Aronson noted thought that he incest was a horrible thing, “but we have to person know whether a did it or not.” This spontaneous response impartiality. reinforces his The District Court excused ten potential jurors for cause as a result of jurors admissions that could fair; not be would shift the proof defendant; burden of to the could not solely base a decision evidence; on the or had personal experiences that would affect judgment. their Aronson fell short of these improper states of mind and defer we to the discretion of the district judge court “who has the ability eyes juror to look into the of the in question, and to consider responses courtroom, [his] in the context of the and then ability juror’s doubts exist about the be
determine whether serious Robinson, impartial.” a trial should be Additionally, importance Clarkson’s witness Clarkson did not interview
placed proper perspective. only regarding investigation, his during investigation, his testified jury required A.P. The including his interviews with never fact, In testimony against party. an adverse weigh Clarkson’s regarding that defense counsel cross-examined Clarkson extent between her interviews in 1998 inconsistencies A.P.’s recollections actually Crosley’s credibility support his as a witness would many helped defense. Clarkson was one of witnesses who corroborate aspects allegations. credibility various of the children’s His as a *13 children, nearly important credibility as as the of the witness was clearly the material witnesses. We cannot find instances in the contradictory presented requiring record where information was the testimony testimony. jury weigh against to Clarkson’s another witness’ context, any tendency testimony In for Aronson to find Clarkson’s this more credible than an unknown witness would not raise serious doubts ability impartial. about his to be fair and question regarding The final whether the District Court abused ¶41 improperly its discretion is whether the court rehabilitated Aronson. repeatedly judges “[W]e have admonished trial to refrain from attempting jurors by putting position to rehabilitate them in a where Good, they disagree will not with the court.” 54. “Coaxed ¶ law, jurors they merely recantations in which state will follow the court, defense, prompted prosecution, whether the trial the or the clearly do not cure erase a stated bias which demonstrates actual Freshment, the of prejudice against rights party.” substantial a 18. ¶ However, judge a district court does not abuse its discretion when the clarify juror’s attempts explain concepts. to a answers or unclear Robinson, 14;Heath, ¶ attempted clarify We find that the District Court here to
¶42 questions Aronson’s answers to a series of from attempting counsel to responses acknowledgement elicit different from his consistent that he testimony strongly. putting jurors would value Clarkson’s Far from “in court,” position they disagree a where will not with the the District willing opposing Court clarified whether Aronson would be to consider testimony surrounding consistency. circumstances for Aronson oath, questioned people always speak whether the truth under acknowledged consistency” “very heartily” that he would “lookfor go where that led him. Since Aronson’s answers did not denote a bias,” “clearly way stated there was no that the District Court could have coaxed him to recant. We conclude that the District Court’s questioning juror’s ability of Aronson was a clarification of the to weigh evidence, not a “coaxed properly recantation of bias.” Therefore, hold that we District Court did not abuse its ¶43 denying Crosley’s challenge juror discretion in of potential cause Aronson. the District Court properly Whether admitted evidence other acts of County incest outside Ravalli under the transaction rule . Crosley argues that the District by failing apply Court erred
procedural safeguards 404(b), and substantive of M. R. Evid. interpreted by Rule, the Modified Just jury order to insure that the did not use evidence of other acts of incest that occurred outside of him. County improperly Ravalli convict In particular, Crosley contends that the District Court by deleting committed reversible error language essential from his proposed jury regarding instruction proper use of other acts evidence. Crosley further contends that the plain District Court committed by failing give error a contemporaneous admonition when presented other acts evidence was to the jury. The State argues it did not present other acts evidence
pursuant 404(b), to M. R. Evid. but introduced evidence of other acts 404(b) of incest under the only gave transaction rule and notice out of caution and to surprise. avoid The State notes that when evidence pursuant rule, admissible to the procedural transaction requirements of the Modified Just Rule applicable. are not 404(b) M. R. Evid. provides: crimes,
Evidence other wrongs, or acts is not admissible to *14 prove the character person of a in order to show action in conformity may, however, therewith. It be admissible for other purposes, motive, such proof opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
This precedent, Rule, Court’s described as the Modified provides Just procedural additional substantive and criteria for the admission of Buck, other 72-74, acts evidence. State v. 2006 MT 331 Mont. ¶¶ 517, 134 (citing Just, 262, 268-69, P.3d 53 State v. 184 Mont. 602 P.2d (1979) Matt, 961 and State v. P.2d (1991)). Crosley claims that the District Court fulfill failed to two ofthe procedural requirements of the by explaining Modified Just Rule to the jury purpose introduced, the of other acts evidence when and jury purpose of the limited of other acts
inadequately instructing the Buck, 74. evidence. See ¶ However, exception. exception Rule has an This the Modified Just “[wjhere the rule,” provides: which
is codified as the “transaction
declaration, act,
part
or omission forms
of a transaction which itself
fact,
declaration, act,
of that
such
or
dispute
the fact in
or evidence
26-1-103,
part
is evidence as
of the transaction.” Section
omission
rule, evidence of other acts that are
MCA.Pursuant to the transaction
of,
to,
charged
the
offense is
“inextricably
explanatory
linked
and
notwithstanding
relating
the rules
to ‘other crimes’
admissible
34, 12, 320
Lozon,
v.
2004 MT
Mont.
California, Missoula, wholly independent and Ronan are not charged County. Crosley unrelated to the offenses of incest in Ravalli began sexually abusing years old, A.P. when she four and sexually abusing finally continued her until she disclosed the abuse at age Crosley’s family sexual ofA.P. did not stop abuse when the left County, importantly, Ravalli and the first instance of sexual California, early intercourse occurred in anal instances of sex time Crosley’s occurred in Ronan. sexual abuse escalated over escalating A.P.’s recollections of this abuse were marked changing locations where the abuse occurred. All of these instances of abuse, regardless location, to, sexual their are inextricably linked of, explanatory charged County. offenses Ravalli The fact in here dispute charged is whether the various acts of incest occurred. Evidence of that fact uncharged includes acts of County incest that occurred outside of Ravalli since those acts are clearly independent escalating related to and not ofthe continuous and Thus, Crosley’s Crosley’sescalating nature of sexual abuse. evidence of part dispute sexual abuse form the transaction and are admissible 26-1-103, under MCA. Crosley suggests gave the District Court because Acts,”
modified instruction “Evidence of Other the court must have uncharged pursuant concluded that the acts were not admissible to the Similarly, Crosley argues transaction rule. that the District Court
241 pursuant evidence was admissible to indicate that other acts seemed the court found the State’s notice Rule because to Modified Just The argument. either/or State disagree sufficient. We with this evidence, acts Crosley’s jury instruction on other objected proposed to of part “first offered and admitted as noting that the other acts were Further, notice that it provided a transaction.” the State continuous in “an intended to introduce evidence of other acts ofincest abundance his Crosley fully prepare of caution” and to allow to defense. rule, alternatively on primarily Notice relied on the transaction Indeed, encouraged apply to the Modified Just Rule. we have courts liberally safeguards protect of the Modified Just Rule Buck, surprise. defendants from unfair 82. While we conclude that ¶ correctly applied admitting the District Court the transaction rule in incest, evidence of other acts of we find no error in the District Court’s other acts instruction nor its assessment of the State’s Notice. Accordingly, we hold that evidence of other acts of incest ¶52 County under the transaction rule. outside Ravalli was admissible admitting The District its discretion in this Court did not abuse 26-1-103, pursuant evidence MCA. Whether was denied assistance counsel. effective Constitution, The Sixth Amendment to the United States Amendment, II,
incorporated through the Fourteenth and Article 24, guarantee Section of the Montana Constitution a criminal right defendant to effective assistance of counsel. To evaluate counsel, adopted claims of ineffective assistance of this Court has Washington, 668, 104 test from Strickland v. U.S. Ct. two-prong 466 S. (1984). 6, MT Kougl, State v. 323 Mont. 97 P.3d ¶ 1) test, 1095. Under Strickland the defendant must establish that performance objective counsel’s fell below an standard 2) reasonableness, that, a probability reasonable exists but for errors, unprofessional proceeding counsel’s the result of the would Kougl, have been different. ¶ strong presumption prong There is a under the first Strickland
that trial
trial
performance
strategy
counsel’s
was based
sound
range
professional
falls within the broad
of reasonable
conduct. State
Hendricks,
7,
177,
v.
2003 MT
317 Mont.
¶57 to the law in sentencing at the time rather than at the time effect the offenses. consistently This Court has person held that a has right to be sentenced under the statutes which are in effect at the time of the Tracy, offense. 16. notes that he was convicted of seven 45-5-507(1), counts ofincest in (4), MCA, violation of each pertaining § to a period different of time: (Second 1, A.P., Street,
Count 1989-1991 Corvallis); (Marcus 2, A.P., Count Street); 1991-1992 (Charlos 3, A.P., Count 1992-1993 Heights, Roaring Road); Lion 4, A.P., Count (Honey 1993-1995 Lane, House Corvallis (grandparents’ house)); (Fish 5, A.P.,
Count Hatchery Road); 1995-1996 (Main 6, A.P., Count Street, 1996-1998 Corvallis); 8, J.P., Count 1995-1998. legislature has amended the maximum penalty for an incest 1989,
conviction several times. In the legislature raised the maximum term of imprisonment incest, years, from ten to 20 when a victim years is under old and the years defender is three or more older. In 1995, the legislature raised the maximum penalty to life amended the incest legislature again In imprisonment. is 12 when an incest victim particular punishments provide statute to ofthe statute was in effect when younger. This version years old or necessarily May 16,2007, but not Crosley on District Court sentenced Crosley notes that the District were committed. when the offenses sentences, (actually life of seven life sentences six imposition Court’s 8) 45-5-507(4),MCA, under suspended for count years and 50 agree. of the We post application ex facto law. was an unconstitutional 1, 2, 3, and Therefore, Crosley’s sentences on incest counts we vacate in the statutes in resentencing remand for accordance with Crosley’s life sentences on at the time of the offenses. We affirm effect count which years suspended and 50 with 25 counts 5 offenses committed after 1995. punish re-sentencing. Affirmed part, part, vacated in and remanded for WARNER,
JUSTICES RICE and MORRIS concur. specially concurring. JUSTICE LEAPHART join and 4. I I concur in the Court’s resolution of Issues special Justice Nelson’s concurrence as to Issue NELSON, specially concurring. JUSTICE (the issue, sentencing I in the Court’s resolution of Issue 4 concur *17 58). I concur in the Court’s resolution of Issues specially discussed at ¶ 2; however, I 1, 2, My and 3. concerns relate to Issue first primary related to Issue 1. points address a number of
ISSUE 1
question
On the
of whether
the District Court abused its
Crosley’s challenge
potential
discretion when it denied
for cause of
juror Aronson,
reaches,
I
in the
the Court
I do not
concur
result
analysis. First,
all
the
I do
that a
agree with
of
Court’s
not believe
actually say
impartial
veniremember must
that he cannot be fair or
39).
(Opinion,
by
before we can find actual bias
“Bias can be revealed
¶
but,
fact,
jurors
juror’s express
frequently,
admission of
more
bias,
reality
actual
and the
their
are reluctant
to admit
of
biased
by
attitudes must be revealed
circumstantial evidence.” State v.
(internal
(1997)
Chastain,
61, 64,
57,
quotation
285 Mont.
947 P.2d
59
omitted),
Herrman,
part
grounds,
marks
overruled in
on other
State v.
149, 33,
2003 MT
316 Mont.
244
harmless).
previously
“jury
We have
held that
selection errors are
such, they
‘structural’ errors and as
are not amenable to harmless
Bird,
2, 39,
error review.” State v.
2002 MT
Mont.
P.3d
¶
here,
more to the point
Even
we have held that “structural error
(1)
occurs if:
a district court abuses its discretion
denying a
(2)
challenge
prospective juror;
for cause to a
the defendant uses one
peremptory challenges
of his or her
the disputed juror;
remove
(3) the defendant exhausts all of
or her peremptory challenges.”
his
Good,
State v.
2002 MT
in a criminal is obligated put any accused disprove evidence or to case-rather, State’s innocence is Thus, presumed. even if the uncontroverted, State’s case is presented matter is still to the jury jury and the has the prerogative rejecting the State’s case for number ofreasons including jurors that the credible, find the State’s witnesses not its evidence improbable, proof or its insufficient.
Good, reason, 65. For this subjective ¶ the Court’s analysis of 40) importance “Clarkson’s aas trial witness” (Opinion, inapt. is The question whether, in light of his stated “give inclination to a lot of credibility to testimony knowing him,” [Clarkson’s] from Aronson should have been removed from the venire. While I consider this to be a close I question, conclude that on the (including record here the follow-up questioning Aronson), Crosley has not established that Aronson would have been Crosley’s guilt unable to determine fairly innocence impartially. review, Given our standard of *18 therefore, agree I with the Court that the District Court did not abuse its discretion in denying challenge for cause.
ISSUES 2 AND 3 2 Issue concerns the admission of prior uncharged evidence of misconduct Crosley County outside Ravalli in (specifically, Missoula California). Generally, County trips Lake and on the County and Rule of the Modified Just requirements procedural substantive and crimes, wrongs, or acts is evidence of other be met before must 961, 957, Just, 602 P.2d v. admissible. State 142-43, 814 P.2d (1979); Matt, 249 Mont. State v. 963-64 (1991). however, that the so-called “transaction explains, The Court Thus, Opinion, 48. requirements. to these “exception” ¶ rule” is an indisputably complied Rule although the Modified Just Crosley’s prior bad acts case, the holds that evidence of in this Court Opinion, under the transaction rule. ¶ was admissible ever-expanding about this Court’s grave I have concerns rule. Over the concerning scope ofthe transaction pronouncements case, after have broadened the transaction years, in case we past otherwise would have rule to more and more evidence that encompass Rule, and one cannot the strictures of the Modified Just fallen within Pac-Man the transaction rule as a sort of maverick help but visualize as devouring quickly from case to case “bad acts” evidence blips that language rule far it We have read into the transaction appears. (§ MCA), 26-1-103, and I that beyond that used in the statute believe time exception completely it we rein in this before it swallows is against evidence of general prohibition Modified Just Rule and the crimes, wrongs, or acts.1 other Hansen, 253, 296 282, 989 P.2d we In State v. 1999 MT Mont. amorphous the use of practice
decided that the better is' abandon “to, corpus gestae doctrines of evidence such as delicti and res instead, applies rule that to the specific use the of evidence statute to determine the particular presented” factual situation order Hansen, Hansen, 81; admissibility of the evidence at issue. see also Thus, analysis (discussing corpus gestae). delicti and res our 27-84 ¶¶ begin applicable must with an statute or rule of evidence. 26-1-103,MCA, here. This applicable The Court contends that statute states: declaration, act, forms of a part
Where the or omission dispute transaction is itself the fact in or evidence of which fact, declaration, act, of the part such or omission is evidence as transaction. 1Notably, argues Crosley’s opening reply appeal briefs on counsel rule, exception applying has
pursuant recent cases the transaction “the to tins Court’s 404(b) procedural and Rule and the Modified Just Rule and the substantive swallowed safeguards essentially urges discarded.” Counsel us to “revisit” of those rules have been of the transaction rule. our formulation *19 246
Yet, the not apply language Court does the actual of this statute. (articulated 48) Instead, applies the Court a number of standards in ¶ 26-1-103, MCA, which have been “associated” with but which are § statutory broader than the language place have no whatsoever in our jurisprudence. Specifically, the Court states that “evidence of other acts that are ”
‘inextricably to, of, linked explanatory charged the offense’ is admissible under the transaction rule. Opinion, (quoting 48 State v. ¶ 753). Lozon, 34, 12, 26, Yet, 2004 MT 320 Mont. 85 P.3d the ¶ words to, “inextricably of, linked and explanatory charged the offense”do not 26-1-103, appear in goes MCA. The Court on to § state that “the requirements of the Modified Just Rule are applied to evidence ” that ‘is not wholly independent or charged unrelated to the offense.’ 12). Opinion, Lozon, (quoting Yet, 48 if any ¶ “bad acts” ¶ evidence which is wholly independent “not or charged unrelated to the offense” is under rule, admissible the transaction I question why then we retain the pretense having a Modified Just Rule. The standards articulated in Lozon and repeated 48 of the ¶
Court’s Opinion evolved from
jurisprudence
this Court’s
under the
corpus
doctrines of
delicti
gestae.
and res
See
v.Derbyshire,
State
2009
27, 32,
MT
114,
349
¶
Mont.
201 P.3d
years,
811. Over the
we have
repeatedly associated
26-1-103,
those standards with
MCA.
e.g.
§
See
Wing,
215, 224-25, 870
State v.
264 Mont.
1368, 1374
P.2d
(1994);State
Atkins,
103,
v.
277
110,
481,
Mont.
(1996);
920 P.2d
485
State v.
Beavers,
260, 48,
1999 MT
340,
296
371;
¶
Mont.
987 P.2d
State v.
Insua,
14,MT
40,
2004
254,
11;Lozon,
319 Mont.
84
11-12;
¶
P.3d
¶¶
Marshall,
State v.
198, 16,
2007 MT
395,
338 Mont.
1129;
¶
165 P.3d
Bieber,
State v.
262,
54,
2007 MT
57,
309,
339
¶¶
Mont.
170
444;
P.3d
Hill,
260, 39,
State v.
2008 MT
95,
345
189
¶
P.3d 1201.1 have
Mont.
myself
done so
in several
e.g.
recent cases. See
Buck,
State v.
2006 MT
517,
331
53;
Mont.
Gittens,
¶
P.3d
State v.
55,
2008 MT
341 Mont.
91;
178 P.3d
Mackrill,
State v.
2008 MT
40-41,
¶¶
language
26-1-103, MCA,
of §
as written and not to read into this
statute
language
extraneous
which effectively perpetuates
the
doctrines of
gestae
res
and corpus delicti.2 We discarded those
statute,
“In
judge
the construction of a
simply
the office ofthe
to ascertain and
therein,
declare what is in terms or in substance contained
omitted or to omit what has been inserted.” Section
not to insert what has been
1-2-101,
MCA.
“hiding
no business
ago,
they
have
in Hansen a decade
doctrines
26-1-103,
Again,
MCA.
statute
under
jurisprudence
in our
out”
of a
declaration, act,
part
forms
or omission
states: “Where
fact,
of that
dispute
the fact in
or evidence
is itself
transaction which
part
act,
is evidence
declaration,
or omission
such
supports
proposition
Nothing
language
in this
transaction.”
offense or “not
charged
of’ a
simply “explanatory
which is
evidence
pursuant
to”the offense is admissible
or unrelated
wholly independent
under another
26-1-103,
may be admissible
MCA. Such evidence
to §
that it is admissible
rule,3
sophistry to hold
pure
but it is
statute
states
26-1-103,
language
The critical
statute
MCA.
(cid:127)under §
*20
of’ the transaction
declaration, act,
part
must “form
the
or omission
Merely being
fact.
in
or evidence of that
dispute
is itself the fact
which
the
or unrelated to”
wholly independent
of’ or “not
“explanatory
26-1-103, MCA.
language
the
of
transaction is not
§
26-1-103, MCA,
an
simply
“is
previously
We have
observed
§
Buechler, 192 Mont.
hearsay
Payne
to the
rule.”
v.
exception
(1981)
&
Chicago, Burlington
Callahan v.
(citing
628 P.2d
649
(1913)). Indeed,
as
Co.,
401,
This was the of such declarations as by competency which to determine they mere direction that must be question, those in but to be a with the main competent they deemed when are so connected the part exceptions to it. It states one of transaction as form of in recognized by the rule all the courts common-law general statements, hearsay jurisdictions requires the exclusion of which the in or an observer by participant viz.: that when declarations time nearly point act are connected with it of litigated of the so incident, necessary they may regarded spontaneous, be as a it, of characterizing they may proved part be as a explaining and upon person principle the who made them. calling it without 3 rules, of Notably, of the defendant’s commission under the federal “evidence [in a criminal case offense or offenses of child molestation is admissible another molestation], may be offense of child the defendant is accused of an which 414(a). bearing it Fed. R. Evid. matter to which is relevant.” considered for its exception
which the is founded is that the declarations were made while the mind the speaker laboring was under the excitement incident, by aroused there before was time to reflect and fabricate, solemnity and hence the of the necessary oath is not give probative it general value. . . . “The rule is that declarations substantially contemporaneous must be with the litigated instinctive, transaction and be the spontaneous active, utterances of the mind while under the immediate transaction, influence of the precluding circumstances idea that the utterances are the design result of reflection or make self-serving false or declarations.” Callahan, 410-11, 47 Mont. at at (emphases added); P. cf. 803(1) M. R. Evid. (defining present sense impression “[a] statement describing or explaining an event or condition made while the declarant perceiving condition, the event or or immediately 803(2) thereafter”); M. R. Evid. (defining excited “[a] utterance as statement relating startling to a event or condition made while the declarant was under the stress of excitement by caused the event or condition”). When principles these are applied to the “act or omission” 26-1-103,
language MCA, it is clear that permits § the statute evidence of acts or omissions which are “substantially contemporaneous litigated with the transaction” and are “soconnected with the main transaction as to part reason, form a of it.” For this (also “inextricably standards linked to” and “inseparably related to” 12)) recited the Court in 48 (citing Lozon, may ¶ be plausible interpretations 26-1-103, MCA; however, language such cannot be *21 interpreted as justifying the State’s “complete picture” the argument in the present connection, case. In this I agree with the following observations of the Court Appeals of in Bowie, United States v. 232 (D.C. 2000): F.3d 923 Cir.
The “complete the story” definition of “inextricably intertwined” 404(b). threatens to override Rule A may defendant’s bad act be only tangentially related charged crime, to the but it nevertheless could “complete story” the “incidentally or charged involve” the offense or “explain the prosecution’s circumstances.” If the evidence did not “explain” or “incidentally involve” the charged crime, it is difficult to see how it could pass the minimal requirement admissibility that evidence be relevant. See FED.R.EVID.401 and 402. finding gestae” the “res doctrine court invoked
The district charged the with inextricably intertwined 17 evidence April the meant to Latinism4 was the extent this To [Citation.] crime. 404(b) outside Rule 17 evidence was April the suggest do story,” the we “completed or it the events” “explained because evidence said, prosecution all relevant As we have agree. omitting fact that story. the The completes crime or explains the cannot story slightly complete a less render some evidence would 404(b) Moreover, evidence altogether. circumventing Rule justify furnishing a motive by instance complete story-for necessary to purpose non-propensity has a establishing identity-typically 404(b). no reason to relieve Rule We see admissible under and is obligation the of district court from and the government the available to non-propensity purposes selecting myriad from the story. most complete
Bowie,
transaction instances MCA, prosecution the in all other 26-1-103, require and to I do not the Modified Just Rule. requirements comply introducing from ever “bad that the State should be barred suggest with the Rather, simply comply State should evidence. acts” doing so and not seek to requirements for procedural substantive and cases, mounting in a cascade requirements, circumvent those rule. resorting to the transaction crimes, of other hand, at the State introduced evidence In the case California, County, committed Missoula by Crosley
wrongs, or acts
acts, however,
part of a
County.
“form[ed]
of those
and Lake
None
dispute
the fact in
or evidence of
[was]
which
itself
transaction
whether
26-1-103,
dispute
The facts in
were
fact.” Section
MCA.
in Ravalli
incidents of incest
assault
specific
committed
in the Information.5
alleged
time intervals
County during
discrete
1981)
(5th
Krezdorn,
1327, 1332
(stating that
639 F.2d
Cir.
“See United States v.
appellation
gestae, ‘an
inextricably
labeled res
intertwined doctrine is sometimes
the
that
admissibility
analysis underlying
of the
merely
to obscure the
tends
evidence.’).” Bowie,
n.
there, permit we the introduction of evidence which M. R. Evid. 404 specifically proscribes-absent compliance with the substantive and procedural protections by afforded And, Modified Just Rule. indeed, that is how the “transaction rule” is being utilized: to end-run 404, Just, M. R. Evid. and Matt. reasons, For these I would hold that Crosley’s the evidence of
misconduct reprehensible California, acts in County, Missoula County Lake were not 26-1-103, admissible under MCA. This conclusion leads to the question what, if any, remedy is appropriate here. Crosley concedes that he did not object to the introduction of Indeed, this evidence. defense counsel stated during the pretrial final conference that the State’s Notice of Intent to Introduce Crimes, Evidence of Other Wrongs & Acts “met the legal Moreover, standards.” counsel objections offered no to the evidence when it was trial, offered the State during participated counsel 4, A.P., Count Count Count Count 1993-95 1995-96 5, A.P., 6, A.P., 7, J.P., 1996-98 1991-95 1995-98 8, J.P., Count Charge II: Assault on a Minor 1, A.P., Count 1992-98 2, J.P., 3, R.P., Count Count 1994-98 1994-98 the District Court given by acts” instruction drafting the “other (an Crosley now instruction
immediately prior closing arguments erroneous). claims was *23 circumstances, Crosley contends that we should these Under error to review his plain of review power
invoke our inherent
that
Crosley contends
challenges to the “bad acts” evidence.
specifically required
by
giving
Court erred
not
the instructions
District
Matt,
at
CONCLUSION reasons, For the I concur in the Court’s resolution foregoing 1,2, of Issue specially 4 and concur in the Court’s resolution Issue Concurrence of JUSTICE joins Special JUSTICE COTTER NELSON.