State v. W. Smith

06/08/2021

DA 18-0187
Case Number: DA 18-0187

IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 148

STATE OF MONTANA,

Plaintiff and Appellee,

v.

WESLEY SMITH,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-32-2016-136-IN
Honorable Leslie Halligan, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Deborah S. Smith (argued), Assistant
Appellate Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Jonathan M. Krauss (argued),
Assistant Attorney General, Helena, Montana

Kirsten H. Pabst, Missoula County Attorney, Missoula, Montana

Argued: February 17, 2021
Submitted: February 23, 2021
Decided: June 8, 2021

Filed:

cir-641.—if
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1 Wesley John Smith appeals his conviction of one count of Sexual Abuse of Children

in violation of § 45-5-625, MCA. The Fourth Judicial District Court imposed a 100-year

sentence to the Montana State Prison with eighty years suspended. Smith challenges the

admission at trial of the alleged victim’s taped forensic interview as improper hearsay; the

prosecutor’s closing arguments; and a condition in his sentence that requires Department

of Corrections (“DOC”) supervision through Global Positioning System (“GPS”)

monitoring for the remainder of his life. We affirm.

¶2 We restate the issues on appeal as follows:

1. Did the District Court misinterpret M. R. Evid. 801(d)(1) and abuse its discretion
by admitting the victim’s taped forensic interview as a prior consistent or
inconsistent statement?

2. Did the prosecutor’s closing arguments amount to plain error that entitles Smith to
a new trial?

3. Is the requirement for GPS monitoring imposed by § 45-5-625(4)(b), MCA, facially
unconstitutional under the Montana and United States Constitutions?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On January 17, 2016, Smith, his wife Katie, Katie’s nine-year-old daughter E.G.,

and the couple’s three younger sons planned to watch a football game at a local bowling

alley. Katie left early to meet her brother at the bowling alley, leaving Smith to get the

children ready and bring them separately. At the time, Smith and Katie were going through

a contentious divorce. Katie nonetheless often would let Smith stay at the house she shared

with her friend Charity and Charity’s two children because Smith did not have a home of

his own. Katie and Charity worked as exotic dancers, and Charity had a pole in her

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personal bedroom the two used for practice and for teaching dance and aerobics lessons.

The day before the underlying incident occurred, Smith and Katie revealed to E.G. that

Smith was not her biological father.

¶4 When Katie left for the bowling alley, E.G. was alone in her room watching videos

on her computer while the three boys were in a downstairs room watching television. E.G.

testified that Smith entered her room without knocking and told E.G. to go into Charity’s

room. There, Smith told E.G. to take off all her clothes besides her bra and underwear and

spin around on the pole. E.G. told Smith she did not want to, but Smith told her to do it

and said “it was okay because [E.G.’s] mom did it.” Scared and upset by Smith’s tone,

E.G. complied with his demands. E.G. testified that while she spun around on the pole,

Smith stood watching her in his underwear with his pants around his ankles, rubbing his

fingers and thumb together and biting his lip. Smith did not touch E.G. while she was on

the pole and kept his hands in the air, but E.G. testified that his penis got bigger. When

asked about later telling her friend M.H. that he was “playing with himself,” she said,

“he wasn’t, like, playing with it, playing with it. But he was, like, adjusting his underwear.”

Eventually, Smith told E.G. she could stop, thanked her, and said he “appreciated it.” E.G.

collected her clothes and ran to her bedroom.

¶5 Soon after, Smith gathered the boys and E.G. and drove them all to the

bowling alley; roughly thirty minutes had elapsed since Katie left. E.G. did not tell her

mother what happened, but the next day she told her friend M.H. about the incident. M.H.

apparently told her school counselor about the incident, who then informed E.G.’s own

school counselor, Chrystal Thompson-Tower. Thompson-Tower testified she did not

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specifically remember a call from M.H.’s counselor but had called E.G. into her office and

asked E.G. to tell her what happened with Smith, which E.G. did. Thompson-Tower’s

notes from the meeting indicated that E.G. told her E.G.’s brothers were present in the

room while Smith made her dance, but at trial E.G. denied she told Thompson-Tower this.

Thompson-Tower reported the incident to the authorities and to Katie.

¶6 Katie took E.G. to First Step Resource Center, a children’s advocacy center, several

days later. Jane Hammett, a registered nurse and trained forensic interviewer, conducted

an hour-long, video-recorded interview with E.G. During the interview, E.G. recounted

the incident and discussed unrelated incidents between Smith and E.G.’s mother and

brothers. Among other statements, E.G. told Hammett that her brothers were downstairs

watching television when Smith had her spin on the pole.

¶7 Smith left Missoula on January 19—the same day E.G. told her school counselor

about what happened—and moved in with his grandmother in Oregon. He would

eventually be arrested in Oregon on an unrelated matter and spend time in jail before facing

these charges in Montana.

¶8 The case went before a Missoula County jury in June 2017. The jury heard

testimony from E.G., Katie, Thompson-Tower, Hammett, and the investigating officer.

Katie testified that once she heard about what happened from the school, she approached

Smith and—deliberately lying—told him that Charity had cameras recording in her

bedroom. Katie stated that Smith, at that point, began profusely apologizing and stated

that he deserved to die; she later received suicidal text messages from Smith. She further

testified that after Smith moved away from the area, he periodically texted her and E.G. on

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their cellphones or tried to call them, expressing contrition about what happened, that he

loved her, and more suicidal ideation. Some of these text messages and voicemails were

introduced into evidence.

¶9 Thompson-Tower recounted her conversation with E.G. about the incident. On

cross-examination, defense counsel questioned Thompson-Tower extensively on her notes

from her conversation with E.G., specifically regarding whether E.G.’s brothers were

present in the room while it occurred. Thompson-Tower testified that although she noted

that E.G. said her brothers were present in the room when Smith made her dance on the

pole, she was just “going off of what a little kid is telling [her]” and did not know what

E.G. meant. Hammett testified to her observations of E.G. during the forensic interview,

such as the details E.G. provided her and E.G.’s demeanor. The investigating officer,

Connie Brueckner, watched E.G.’s forensic interview and interviewed E.G.’s friends and

family. Brueckner testified that she fulfilled a similar role to Hammett as a neutral

factfinder. In Brueckner’s opinion, E.G.’s testimony and statements in the forensic

interview had the normal amount of “variation” that occurs when a “[story is] told to

different people who are asking different kinds of questions” and generally seemed reliable.

On cross-examination, Brueckner testified regarding her interview with M.H., in which

M.H. said that E.G. told her Smith was playing with himself during the incident. Smith

did not voice any hearsay objections to these witnesses’ testimony.

¶10 During the lunch recess after Hammett’s testimony, the State informed the judge

that it sought to introduce E.G.’s video recorded forensic interview because “the defense’s

main theme . . . is that [E.G.] made this up” and it was “important for the jury to see

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[E.G.’s] demeanor, particularly given the fact that this event happened so long ago and that

she’s had to retell it so many times . . . particularly when her credibility’s being attacked.”

The State argued that the recording was admissible as “a prior consistent statement for a

witness [for whom the defense has] pointed out . . . inconsistencies.” The defense objected,

and the District Court considered the matter, eventually allowing the recording to be

admitted. Smith filed a motion to reconsider. The District Court issued an order affirming

that under M. R. Evid. 801(d)(1)(B) the video was admissible as a prior consistent

statement; to the extent there were any inconsistencies in the video, the video was

admissible under M. R. Evid. 801(d)(1)(A) as a prior inconsistent statement; or that it was

admissible as a mix of the two. The State played a redacted version of the video recording

for the jury and rested its case.

¶11 The first and only witness in his case-in-chief, Smith testified that as he was getting

the boys ready to go to the bowling alley, he went into E.G.’s room to tell her to get ready

to go. As the boys were getting ready, he went back upstairs and found E.G. in Charity’s

room playing, not dancing, on the pole. Smith testified that he grabbed some of his clothes

from Katie’s room and headed towards the bathroom but stopped again in front of Charity’s

room to tell E.G. again to get ready. According to Smith, he quickly changed into new

pants while he stood in the doorway. Smith stated further that he never told E.G. to take

all her clothes off, only that she needed to change out of the dirty sweater and spandex

shorts she was wearing before they went to the bowling alley. Smith testified that after he

said this, E.G. became very upset because that was her favorite sweater and she wanted to

wear it. He then told E.G. that she should not be in Charity’s room without her permission.

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Smith stated that after this exchange he went downstairs to finish getting the boys ready,

went back upstairs, saw that E.G. was properly dressed, and they all went to the

bowling alley together.

¶12 Smith objected once during the State’s closing argument when the prosecutor began

discussing the video interview. The trial court did not sustain the objection but cautioned

the prosecutor not to use the interview to bolster E.G.’s testimony. The prosecutor

continued her argument, and Smith made no further objections. After deliberating for

five hours, the jury returned a guilty verdict.

¶13 The District Court sentenced Smith under § 45-5-625, MCA (2015),1 imposing a

100-year prison sentence with all but twenty years suspended, and designated Smith as a

Level I sexual offender. Pursuant to § 46-18-222(6), MCA, the District Court found Smith

eligible for the exception to the twenty-five-year mandatory minimum term of

imprisonment and did not impose a parole restriction. Additionally, pursuant to

§ 45-5-625(4)(b), MCA, the District Court required Smith to participate in satellite-based

monitoring through the DOC for the remainder of his life once released from prison.

STANDARDS OF REVIEW

¶14 We review evidentiary rulings for an abuse of discretion. State v. McOmber,

2007 MT 340, ¶ 10, 340 Mont. 262, 173 P.3d 690 (citing State v. Gomez, 2007 MT 111,

¶ 18, 337 Mont. 219, 158 P.3d 442). A district court abuses its discretion when it acts

arbitrarily without the employment of conscientious judgment or exceeds the bounds of

1
The relevant portions of this statute are the same as the current version.
7
reason, resulting in substantial injustice. McOmber, ¶ 10. A district court’s evidentiary

rulings must be supported by the “rules and principles of law”; therefore, “to the extent that

a discretionary ruling is based on a conclusion of law . . . we must determine whether the

court correctly interpreted the law.” McOmber, ¶ 10 (quoting State v. Price, 2006 MT 79,

¶ 17, 331 Mont. 502, 134 P.3d 45).

¶15 This Court does not generally review on appeal issues that were not objected to at

trial. Under the plain error doctrine, however, we may invoke discretionary review

“in situations that implicate a defendant’s fundamental constitutional rights when failing

to review the alleged error may result in a manifest miscarriage of justice, leave unsettled

the question of the fundamental fairness of the proceedings, or compromise the integrity of

the judicial process.” State v. Hayden, 2008 MT 274, ¶ 17, 345 Mont. 252, 190 P.3d 1091

(citing State v. Daniels, 2003 MT 247, ¶ 20, 317 Mont. 331, 77 P.3d 224). We review

prosecutorial misconduct claims to determine whether the alleged misconduct deprived the

defendant of a fair and impartial trial. Hayden, ¶ 27 (citing Clausell v. State, 2005 MT 33,

¶ 11, 326 Mont. 63, 106 P.3d 1175).

¶16 Finally, we review criminal sentences for legality. State v. Ber Lee Yang,

2019 MT 266, ¶ 8, 397 Mont. 486, 452 P.3d 897 (citing State v. Coleman, 2018 MT 290,

¶ 4, 393 Mont. 375, 431 P.3d 26). A claim that a sentence violates a constitutional

provision is reviewed de novo. Ber Lee Yang, ¶ 8 (citing State v. Tam Thanh Le,

2017 MT 82, ¶ 7, 387 Mont. 224, 392 P.3d 607).

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 DISCUSSION

¶17 1. Did the District Court misinterpret M. R. Evid. 801(d)(1) and abuse its discretion
by admitting the victim’s taped forensic interview as a prior consistent or inconsistent
statement?

¶18 “Hearsay is a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted.”

M. R. Evid. 801(c). M. R. Evid. 801(d)(1) excludes certain statements from the definition

of hearsay, including a person’s prior statement when “[t]he declarant testifies at the trial

or hearing and is subject to cross-examination concerning the statement, and the statement

is . . . consistent with the declarant’s testimony and is offered to rebut an express or implied

charge against the declarant of subsequent fabrication, improper influence, or motive.”

¶19 For a prior consistent statement to be admissible under Rule 801(d)(1)(B): “(1) the

declarant must testify at trial and (2) be subject to cross-examination concerning her

statement, and (3) the statements to which the witness testifies must be consistent with the

declarant’s testimony, and (4) the statement must rebut an express or implied charge of

subsequent fabrication, improper influence or motive.” McOmber, ¶ 13 (quoting

State v. Teters, 2004 MT 137, ¶ 25, 321 Mont. 379, 91 P.3d 559). The rule applies only

“when the declarant’s in-court testimony has been impeached by another party’s

allegations of subsequent fabrication, improper influence, or motive.” McOmber, ¶ 15

(quoting State v. Lunstad, 259 Mont. 512, 515, 857 P.2d 723, 725 (1993)). The statement

“must have been made before the alleged motive to fabricate arose.” McOmber, ¶ 15

(emphasis in original) (citing Teters, ¶ 27; State v. Veis, 1998 MT 162, ¶ 24, 289 Mont.

450, 962 P.2d 1153).

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¶20 Smith argues that E.G.’s forensic interview is not a prior consistent statement under

Rule 801(d)(1)(B) because her alleged motive to fabricate the sexual abuse was to get

Smith “out of the house” after she learned that he was not her biological father. Because

E.G. was “lying all along,” Smith argues that the forensic interview was not made before

her motive to fabricate the allegations against him arose. Instead, the only purpose the

forensic interview served—and the purpose for which the State actually used it—was to

corroborate and bolster E.G.’s in-court testimony.

¶21 The State does not contest Smith’s analysis of Rule 801(d)(1)(B) but counters that

E.G.’s interview statements constitute “mixed” inconsistent and consistent statements

admissible under our prior rulings in State v. Mederos, 2013 MT 318, 372 Mont. 325,

312 P.3d 438, and State v. Lawrence, 285 Mont. 140, 948 P.2d 186 (1997). Alternatively,

the State argues that to the extent any of the statements contained in E.G.’s forensic

interview were improperly admitted, the error was harmless.

¶22 We held in Lawrence that “a claimed lapse of memory is an inconsistency within

the meaning of Rule 801(d)(1)(A).” Lawrence, 285 Mont. at 159, 948 P.2d at 198. There,

a witness in a murder case, Mary Jenkins, participated in five pre-trial interviews.

Lawrence, 285 Mont. at 156, 948 P.2d at 196. During the interviews, Jenkins answered

some factual questions definitively; when asked the same or a similar question later,

however, she frequently changed her answers to “I don’t know” or “I can’t remember.”

Lawrence, 285 Mont. at 156, 948 P.2d at 196. A medical diagnosis later established that

Jenkins suffered from Alzheimer’s induced dementia; the district court nonetheless found

her competent to testify. Lawrence, 285 Mont. at 156, 948 P.2d at 196.

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¶23 At trial, the prosecutor asked Jenkins the same questions she was asked in her

pre-trial interviews, but Jenkins frequently stated she could not remember their answers;

Jenkins’s lack of memory continued even under the defense’s leading questions on

cross-examination. Lawrence, 285 Mont. at 157, 948 P.2d at 196. The prosecution

eventually sought to introduce Jenkins’s previous definitive answers as prior consistent

statements; the defense objected on foundational grounds, but the district court permitted

them under Rule 801(d)(1). Lawrence, 285 Mont. at 157, 948 P.2d at 196. We affirmed

the district court, holding that a witness’s claimed lapse of memory is an inconsistency

under Rule 801(d)(1)(A). Lawrence, 285 Mont. at 159, 948 P.2d at 198. Applying that

principle to the underlying facts, we observed that “the nature of [Jenkins’s] trial testimony

made it especially difficult for the [d]istrict [c]ourt to parse out specific inconsistent and

consistent statements.” Lawrence, 285 Mont. at 160, 948 P.2d at 198. We concluded that

the district court did not abuse its discretion in characterizing Jenkins’s lapse in memory

as inconsistent statements, nor in admitting some consistent statements with the

inconsistent ones for reasons of judicial efficiency and assisting the jury. Lawrence,

285 Mont. at 160, 948 P.2d at 198; see also State v. Howard, 2011 MT 246, ¶ 31,

362 Mont. 196, 265 P.3d 606.

¶24 We addressed a similar issue in Mederos. There, two young girls, A.R. and A.S.,

alleged that Mederos sexually assaulted them. Mederos, ¶ 5. The girls’ pre-trial forensic

interviews resulted in vague and unclear accounts about what had happened. Mederos, ¶ 6.

The two girls testified at trial, offering “disjointed and, at times, contradictory testimony

about what happened,” often responding when pressed for details that they did not

11
remember what occurred. Mederos, ¶ 7. The girls’ mothers and grandfather testified at

trial to the girls’ prior inconsistent statements, including but not limited to statements the

girls made to them identifying Mederos and describing when and how the assaults

occurred. Mederos, ¶¶ 18–19.

¶25 On appeal, Mederos claimed that his counsel was ineffective for failing to object to

the mothers’ and grandfather’s testimony. Mederos, ¶ 11. We rejected that argument,

noting that A.R. and A.S. “frequently responded that they did not know or could not

remember answers to questions during direct and cross-examination” and that the

testimony they provided could “charitably” be described as vague and unclear.

Mederos, ¶ 17. We concluded it was therefore proper for the girls’ prior inconsistent

statements to be introduced through other witnesses. Mederos, ¶ 18. Further, in such a

situation, “to parse the [victims’] consistent statements from the inconsistent statements

likely would have made the witnesses’ testimony disjointed and confusing.”

Mederos, ¶ 18. We concluded that the witnesses’ testimony was proper under

Rule 801(d)(1)(A) and Mederos’s counsel could have had strategic reasons for not

objecting. Mederos, ¶¶ 20–21.

¶26 Here, the State argues that E.G. made statements to Hammett inconsistent with her

trial testimony that she did not remember that she did not tell Hammett that Smith was

“playing with himself or touching his penis, or that [she] was forced by Smith to dance on

the pole in front of her brothers.” The State also points to several things E.G. said at trial

that she did not say during the forensic interview: that Smith offered and gave E.G. twenty

dollars for dancing on the pole; that Smith told her it was okay to do it because E.G.’s mom

12
did it; that Smith called her a “pussy”; and that Smith told E.G. to go faster and faster. The

State also points to statements E.G. made in the forensic interview but not at trial: that she

was scared Smith might do something to hurt her brothers; that she was afraid Smith might

take her brothers away; that Smith was making “moaning sounds” while she was on the

pole; that she was crying while on the pole; that Smith grabbed her arm when he came back

into her room; and that Smith told her not to tell anybody. The State alleges these

differences and omissions amount to the same type of inconsistencies found in Mederos,

Lawrence, and Howard, and thus the forensic interview properly was admitted along with

any consistent statements it also contained.

¶27 The State adopts an incomplete view of our holdings in Mederos and Lawrence.

Both involved a witness’s lapse of memory at trial regarding prior declarations of fact they

actually made, not a lapse of memory regarding statements they did not actually make.

See Lawrence, 285 Mont. at 157, 948 P.2d at 196 (“[T]he prosecution asked [Jenkins] the

same or similar questions as had been asked of her during the interviews . . . most of her

testimony was that she couldn’t remember. On cross-examination, [Jenkins] often

retracted her definitive answers that she made on direct by saying she could not

remember.”); Mederos, ¶¶ 17, 19 (“A.R. and A.S. frequently responded that they did not

know or could not remember answers to questions during direct and

cross-examination . . . For example, A.S. testified that she had talked to her mother about

Mederos on February 28, 2011. Mederos’s counsel asked A.S. on cross-examination when

she first had told her mother that Mederos had been molesting her. A.S. responded that

she did not remember.”).

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¶28 Here, in contrast, the State cites the following statements made on

cross-examination as evidence of E.G.’s lapse of memory regarding what she said during

the forensic interview:

Q. You didn’t . . . tell [Hammett] that [Smith] was playing with himself,
right?

A. Not that I remember.

Q. Okay. And you also didn’t tell [Hammett] that [Smith] made you do this
in front of your three little brothers, right?

A. I can’t remember that.

E.G. already had testified on direct examination:

Q. During any of this, was anybody else in [Charity’s room]?

A. No.

Q. Do you remember ever telling anybody that somebody else was in there,
like your brothers?

A. No.
. . .

Q. So at any point [when you were in Charity’s room], were your brothers in
there watching this?

A. No.

Q. How sure about that are you?

A. I’m very sure because the door was shut.

¶29 Unlike Lawrence and Mederos, E.G. did not demonstrate a lack of memory

regarding declarations of fact she made during her testimony or in response to questions

Hammett actually asked in the forensic interview. The questions highlighted by the State

14
as establishing an inconsistency are not questions regarding facts E.G. disclosed during the

forensic interview; they are questions regarding statements she did not make. E.G. testified

consistently at trial and during the forensic interview that her brothers were not present in

the room with her and that Smith was not “playing with himself.”2 With this in mind,

E.G.’s answers of “[n]ot that I remember” and “I can’t remember that” are not “lapses of

memory.” E.G. had no memory of “tell[ing] [Hammett] that [Smith] was playing with

himself” or “tell[ing] [Hammett] that [Smith] made [her] do this in front of [her] three little

brothers” because she did not tell Hammett those things.

¶30 The State’s argument also misses an important distinction between E.G.’s testimony

and that of the witnesses in Lawrence and Mederos. E.G. testified coherently and clearly

at trial. She rarely stated she did not know the answer to a question, let alone questions

about what occurred in Charity’s room. To the extent there were inconsistencies, they were

relatively immaterial, and E.G.’s testimony did not make it “difficult for the court to

separate the consistent from inconsistent portions of the prior statement.” Mederos, ¶ 18.

Unlike Lawrence and Mederos, E.G.’s alleged prior inconsistent statements were

introduced through video, not through the testimony of other witnesses. Our review of the

forensic interview video leaves us convinced that E.G. was detailed in her recollections to

Hammett and consistent with what she told the jury; inconsistent portions, if any, could

have been isolated and played for the jury without other portions of the interview being

introduced.

2
E.G.’s statement about Smith “playing with himself” was not made in the forensic interview but
to her friend M.H.—and E.G. clarified on the stand what she meant.
15
¶31 We likewise do not agree with the State that simply because E.G. mentioned certain

facts in the forensic interview that she did not mention at trial, or vice-versa, her forensic

interview statements are therefore inconsistent with her trial testimony. Indeed, many of

the differences the State points out are better classified as omissions rather than

inconsistencies. Hammett testified to her role as a “neutral factfinder” and that the goal of

a forensic interview is to “elicit [a] narrative” from the victim. At trial, however, E.G.’s

testimony was directed by the prosecutor or, on cross-examination, by the defense. Both

parties were able to draw out certain things she said during the forensic interview and

crafted their questions to elicit the testimony important to their respective theories of the

case. Additionally, the State properly steered away from eliciting testimony about E.G.’s

fears that Smith may hurt her family or brothers, which could have raised the severed

domestic abuse charges Smith faced. We conclude that E.G.’s trial testimony was not

inconsistent with her forensic interview and could not properly be admitted as “mixed”

consistent and inconsistent statements.

¶32 The District Court also reasoned that E.G.’s forensic interview qualified as a prior

consistent statement under M. R. Evid. 801(d)(1)(B) because it read the word “subsequent”

in Rule 801(d)(1)(B) to modify only “fabrication,” not “improper influence” or “motive.”

We have held unequivocally, however, that “to qualify as a prior consistent statement under

M. R. Evid. 801(d)(1)(B), the statement must have been made before the alleged motive to

fabricate arose.” McOmber, ¶ 15 (emphasis original); see also Teters, ¶ 27

(“prior consistent statements are admissible only when a specific motive to fabricate is

alleged and the prior consistent statements were made before the time the alleged motive

16
to fabricate arose”). The Commission Comments to Rule 801(d)(1)(B) likewise make clear

that the modifier “subsequent” is not limited to just “fabrication,” but it rather modifies

improper influence and motive as well. See Commission Comments, M. R. Evid. 801

(Stating that a prior consistent statement is allowed to rehabilitate a witness impeached on

the grounds mentioned in the clause “because [the consistent statement] was made prior to

the existence of the impeaching evidence.” “Evidence” is clearly meant in context to refer

to evidence of fabrication, improper influence, or motive.). The District Court’s

interpretation of Rule 801(d)(1)(B) is therefore erroneous as a matter of law.

¶33 At trial, Smith argued that E.G.’s motive to fabricate the story was to get Smith,

whom E.G. just learned was not her real father, out of the house—a motive arising before

E.G.’s forensic interview. During the arguments surrounding the introduction of the

forensic interview, the District Court observed that Smith, through his questioning of

witnesses, implied to the jury that E.G.’s motive to fabricate the story arose from her

conversations with M.H.—conversations that occurred before her forensic interview. As

noted, the State does not argue on appeal that Smith ever alleged any motive, fabrication,

or improper influence arising after the forensic interview. The statements E.G. made

during her forensic interview therefore are not excluded from the definition of hearsay, and

the District Court erred to the extent it admitted the forensic interview as a prior consistent

statement.

¶34 Not every error committed by a District Court is reversible. State v. Van Kirk,

2001 MT 184, ¶ 29, 306 Mont. 215, 32 P.3d 735. “A cause may not be reversed by reason

of any error committed by the trial court against the convicted person unless the record

17
shows that the error was prejudicial.” Section 46-20-701(1), MCA. The first step in our

harmless error review is to categorize the error as structural or trial error; structural error

“affects the framework within which the trial proceeds”; trial error “is that type of error

that typically occurs during the presentation of a case to the jury.” Van Kirk, ¶¶ 38–40

(citations omitted). The admission of the forensic interview video was trial error.

See State v. Kaarma, 2017 MT 24, ¶ 89, 386 Mont. 243, 390 P.3d 609. We thus inquire if

“there is a reasonable possibility that the inadmissible evidence might have contributed to”

Smith’s conviction. Kaarma, ¶ 89 (citing Van Kirk, ¶ 42). Inadmissible evidence is not

prejudicial so long as the jury was presented with admissible evidence proving the same

facts as the tainted evidence. Kaarma, ¶ 89 (citing Van Kirk, ¶ 43).

¶35 The State presented ample admissible evidence proving the same facts as the

forensic interview. E.G.’s unfaltering testimony at trial established all the facts necessary

for the jury to convict Smith. True, the forensic interview bolstered and lent credibility to

her testimony. But other witnesses provided admissible testimony tending to lend the same

credibility to E.G.’s trial testimony—testimony to which Smith did not object. Hammett

testified to her impressions of E.G.’s demeanor and composure during the interview.

Thompson-Tower testified that she had no reason to suspect E.G. was fabricating her story,

and that E.G. had no history of lying at school. And then there were Smith’s own

statements. Katie testified that Smith admitted he made E.G. dance on the pole and

apologized after she told him video cameras in the room recorded the entire incident.

Finally, Smith’s text messages and voicemails, revealing Smith’s impassioned expression

of contrition, provided compelling evidence giving credence to E.G.’s account of what

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happened. Given the quality of admissible, untainted evidence presented at trial, there is

not a reasonable possibility that the forensic interview contributed to Smith’s conviction.

We conclude that Smith’s right to a fair trial was not prejudiced. Van Kirk, ¶ 29.

¶36 2. Did the prosecutor’s closing arguments amount to plain error that entitles Smith
to a new trial?

¶37 During the State’s initial closing argument, the prosecutor began to discuss the video

interview, drawing an objection from Smith that the State could not use the video to

comment on “the consistency of [E.G.’s] statements.” The court allowed the prosecutor

“to continue in light of the objection” and advised her not to “re-bolster[] those things, but

to remind the jury what they can consider when they’re deliberating.” The prosecutor then

said:

There were several times in there where [E.G.] would correct
the . . . questioner and make sure they weren’t operating on false questioning.
I’m not [going to] go through what [E.G.] said about what happened to her,
what the defendant did to her, but there are pieces of that interview that are
circumstantial indicators of corroboration.

Smith did not renew the objection or object further. He contends on appeal that this

argument disregards the District Court’s admonishment.

¶38 The defense’s primary argument in closing was that E.G. told multiple versions of

the incident to different people in an effort to get the person she just learned was not her

father out of the family. The defense argued that it did not make sense for Smith to try to

abuse E.G. during a brief thirty-minute period when he could have done it some other time,

and that the apologies contained in his text messages and voicemails were for moving away

19
from the family, not for abusing E.G. The defense urged the jury to find reasonable doubt

from this evidence.

¶39 In rebuttal, the State argued that “this is not a family that walks around nude or

partially nude,” that Smith told E.G. to “[d]o it like your momma,” that E.G. described the

incident in terms she would not have used if she was being coached, and that Smith lied

about not remembering his phone number when questioned on the stand. The State

concluded by stating that “[j]ustice protects innocence” and that the jury should convict

Smith because “[t]he law requires it, the testimony warrants it, but justice demands it.”

Defense counsel did not object to the rebuttal argument.

¶40 Smith argues that the prosecutor with these comments violated his right to a fair trial

by improperly relying on the forensic interview and by telling the jury that Smith “lied,”

that E.G. was telling the truth, and that justice demands a conviction. Because Smith did

not object to these arguments at trial, he urges us to review them for prosecutorial

misconduct under the plain error doctrine.

¶41 Generally, we do not address on appeal a defendant’s claim of prosecutorial

misconduct when he did not object at trial; we may in our discretion review the issue for

plain error. State v. Aker, 2013 MT 253, ¶ 21, 371 Mont. 491, 310 P.3d 506 (citing

State v. Lacey, 2012 MT 52, ¶ 14, 364 Mont. 291, 272 P.3d 1288). We apply plain error

review sparingly, “in situations that implicate a defendant’s fundamental constitutional

rights when failing to review the alleged error may result in a manifest miscarriage of

justice, leave unsettled the question of the fundamental fairness of the proceedings, or

20
compromise the integrity of the judicial process.” Aker, ¶ 21 (quoting State v. McDonald,

2013 MT 97, ¶ 8, 369 Mont. 483, 299 P.3d 799).

¶42 The right to a fair trial by jury is guaranteed by the Sixth Amendment to the United

States Constitution and by Article II, Section 24, of the Montana Constitution. Aker, ¶ 24

(citing Hayden, ¶ 27). A prosecutor’s misconduct is ground for reversing a conviction

when the conduct “deprives the defendant of a fair and impartial trial.” Aker, ¶ 24 (quoting

McDonald, ¶ 10). We review alleged improper statements during a closing argument in

the context of the entire argument; we do not presume prejudice from the alleged

misconduct, and the burden is on the defendant to show the argument violated his

substantial rights. Aker, ¶ 24 (citing State v. Makarchuk, 2009 MT 82, ¶ 24, 349 Mont. 507,

204 P.3d 1213; McDonald, ¶ 10).

¶43 Smith alleges the prosecutor committed plain error in her closing argument when

she relied on the forensic interview to corroborate E.G.’s testimony, misstated the law,

vouched for E.G.’s credibility, and misrepresented testimony of the witnesses. It is

improper for a prosecutor to characterize the defendant or witnesses as liars or to offer

personal opinions on a witness’s credibility, but she may offer comments on “the gravity

of the crime charged, the volume of evidence, credibility of witnesses, inferences to be

drawn from various phases of evidence, and legal principles involved in the instructions to

the jury.” Aker, ¶¶ 26–27 (internal quotation marks and citations omitted).

¶44 Smith challenges several comments the prosecutor made responding to Smith’s

arguments on rebuttal. First, the prosecutor argued that Smith told E.G. to “do it like your

momma” and that had E.G. been coached, she would not have used these words. Smith is

21
correct that neither E.G. nor anyone else testified that Smith used those words. Instead,

E.G. testified that Smith said “it was okay because my mom did it.” The record reflects no

intentional misrepresentation of testimony; either statement, “do it like your momma” or

“it was okay because my mom did it,” properly speaks to an element of the charged

offense—the “use of a child in an exhibition of sexual conduct.”

Section 45-5-625(1)(a), MCA. Smith wanted E.G. to dance like her mother, an exotic

dancer, and was not directing her merely to play or climb on the pole in a non-sexual

manner.

¶45 Second, Smith challenges the State’s argument that “this is not a family that walks

around nude or partially nude,” and the only time Smith stated he was walking around in

his underwear happened to be at the moment E.G. stated he made her dance on the pole.

Smith argues that he explained he was “really quickly” changing out of sweatpants in

E.G.’s doorway. But the prosecutor argued, rhetorically, that “[Smith] just happened to be

there in his underwear, changing clothes, walking from one bedroom to another where she

was?” In context, the State was drawing the jury to a proper inference it could gather from

the evidence.

¶46 Third, Smith takes issue with the prosecutor’s statement that he lied about not

remembering his phone number and saying he “didn’t have any conversations with Katie.

None.” Smith testified that he could not remember his phone number because he changed

it after leaving Missoula. Again, however, these comments were directed to the plausibility

of Smith’s trial testimony. The only witnesses to what occurred were Smith and E.G., and

the trial was essentially over which of the two was more credible. We generally refrain

22
from invoking plain error review of improper closing argument regarding witness

credibility. See Aker, ¶ 30 (citations omitted).

¶47 Unlike instances in which we have found a prosecutor improperly commented on

the truthfulness of a witness, the prosecutor here did not offer her personal opinion on

the credibility of witnesses but drew inferences from the evidence. See Hayden, ¶¶ 12–14,

32–33. The challenged rebuttal statements reflect a plausible interpretation of the

testimony presented at trial. A prosecutor properly may comment both on the credibility

of witnesses and on inferences the jury should draw from the evidence. McDonald, ¶ 14.

Under the circumstances, Smith cannot demonstrate that these statements violated his

substantial rights. McDonald, ¶ 10.

¶48 Finally, Smith argues that the State improperly argued that he “preyed on [E.G.’s]

innocence,” that “justice protects innocence,” that E.G. stood up for the truth, and that the

jury must tell her with its verdict “the truth matters,” “what [Smith] did to her was wrong,”

and that the jury “believe[s] her” and should hold Smith responsible because “[t]he law

requires it, the testimony warrants it, but justice demands it.” The State presented these

arguments in response to Smith’s arguments that E.G. was lying about what happened in

order to get Smith out of her family; that E.G. made up and continuously gave different

versions of her story to different people; and that Katie was lying about Smith’s admissions

to her. Smith contends nonetheless that the prosecutor’s statements invade the province of

the jury to determine which witnesses to believe and the weight to afford each witness’s

testimony, that the State vouched for E.G.’s credibility, and that the prosecutor misstated

the law.

23
¶49 It is the “jury’s purpose and duty to decide if the State has proved the defendant’s

guilt beyond a reasonable doubt, based on the facts presented, . . . not to decide the case on

the basis of sympathy or advocacy for the victim.” State v. Ritesman, 2018 MT 55, ¶ 27,

390 Mont. 399, 414 P.3d 261 (citation and internal quotation marks omitted). Without

deciding whether these arguments crossed that line, they were unobjected to at trial. The

District Court clearly instructed the jury it was not to consider the statements of the

attorneys as evidence, that it alone is the sole judge of the credibility of all witnesses in the

case, and that “the law forbids [it] to be governed by mere sentiment, conjecture, sympathy,

passion, prejudice, public opinion or public feeling.” We presume the jury followed these

instructions. See State v. Ariegwe, 2007 MT 204, ¶ 168, 338 Mont. 442, 167 P.3d 815.

¶50 Of the challenged arguments, the most troubling is the prosecutor’s reference to the

forensic interview, as we have found error in the District Court’s decision to admit the

interview into evidence. The State did not, however, reference any statements E.G. made

in the forensic interview, and made only a brief statement after the District Court

admonished it. Smith does not contend that he preserved an objection to the comment or

explain how that comment worked to his substantial prejudice in the context of the entire

trial. We have held that the District Court’s error in admitting the forensic interview was

harmless. In light of the record as a whole, and in the context of the entire argument

presented to the jury, we cannot conclude that failing to review the State’s allegedly

improper argument would “result in a manifest miscarriage of justice, leave unsettled the

question of the fundamental fairness of the proceedings, or compromise the integrity of the

judicial process.” McDonald, ¶ 8.

24
¶51 “A prosecutor’s argument is not plain error if made in the context of discussing the

evidence presented and how it should be used to evaluate a witness’s testimony under the

principles set forth in the jury instructions.” Ritesman, ¶ 28 (quoting Aker, ¶ 27). On the

whole, the State’s closing argument in this case met that principle. We conclude that Smith

has not sustained his burden to demonstrate that the prosecutor’s closing arguments justify

reversal of his conviction for plain error. See Ritesman, ¶ 28.

¶52 3. Is the requirement for GPS monitoring imposed by § 45-5-625(4)(b), MCA,
facially unconstitutional under the Montana and United States Constitutions?

¶53 The District Court sentenced Smith to a 100-year prison term, suspending all but

twenty years. Should the Court affirm his conviction, Smith argues that it must remand to

strike Condition 39 of his sentence. Condition 39 reads:

If the Defendant is released after the mandatory minimum period of
imprisonment, the Defendant is subject to supervision by the Department of
Corrections for the remainder of the offender’s life and shall participate in
the program for continuous, satellite-based monitoring provided for in
§ 46-23-1010, MCA; as a result of the conviction in § 45-5-625(4)(b), MCA.

Smith argues that the statute authorizing this condition, § 45-5-625(4)(b), MCA, is

unconstitutional under Article II, Sections 10, 11, 22, and 28, of the Montana Constitution

and the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution.

¶54 Section 45-5-625(4), MCA (2015), the law under which Smith was sentenced,

provides in pertinent part:

(a) If the victim was 12 years of age or younger and the offender was 18 years
of age or older at the time of the offense, the offender:
(i) shall be punished by imprisonment in a state prison for a term of 100 years.
The court may not suspend execution or defer imposition of the first 25 years
of a sentence of imprisonment imposed under this subsection (4)(a)(i) except

25
 as provided in 46-18-222, and during the first 25 years of imprisonment, the
offender is not eligible for parole.
. . .
(b) If the offender is released after the mandatory minimum period of
imprisonment, the offender is subject to supervision by the department of
corrections for the remainder of the offender’s life and shall participate in the
program for continuous, satellite-based monitoring provided for
in 46-23-1010.3

Smith argues that the statute is facially unconstitutional “because it mandates lifetime

satellite monitoring of people whose sentences have been fully discharged” even though

“their fundamental liberties have been fully restored[.]” Smith contends that, as in

Ber Lee Yang, the statute is facially invalid because of its mandatory nature; it permits no

individualized inquiry. He concedes that he did not make an as-applied challenge in the

trial court, and thus he does not do so on appeal. Through counsel, Smith clarified his

position during oral argument: he is challenging only the post-sentence monitoring of an

offender and, if the Court construes subsection (4)(b) to apply only during the

100-year mandatory term of sentence—which he does not challenge—then the

facial challenge is resolved. He urges the Court not to adopt an interpretation of

3
Section 45-5-625(4)(a)(i), MCA (2019), has since been amended to read:

(i) shall be punished by imprisonment in a state prison for a term of 100 years. The
court may not suspend execution or defer imposition of the first 25 years of a
sentence of imprisonment imposed under this subsection (4)(a)(i) except as
provided in 46-18-222(1) through (5), and during the first 25 years of
imprisonment, the offender is not eligible for parole. The exception provided in
46-18-222(6) does not apply.

The difference in language is not material to our decision.
26
subsection (4)(b) that allows supervision and GPS monitoring after a defendant has fully

discharged the sentence.

¶55 The State has not argued for a different construction, maintaining that the statute

does not and would not apply after a sentence has terminated. It urges the Court to read

subsections (4)(a) and (4)(b) together; (4)(b)’s mandatory supervision applies only to the

100-year period imposed by (4)(a).

¶56 “The party challenging the constitutionality of a statute has the burden of proving

beyond a reasonable doubt that it is unconstitutional.” Ber Lee Yang, ¶ 14 (citation

omitted). The party bringing a facial challenge “must show either that no set of

circumstances exists under which the statute would be valid or that the statute lacks a

plainly legitimate sweep.” Yang, ¶ 14 (quoting In re S.M., 2017 MT 244, ¶ 10,

389 Mont. 28, 403 P.3d 324) (internal quotation marks omitted). Statutes are presumed to

be constitutional, a presumption that may be “overcome [only] after careful consideration

of the purpose and effect of the statute.” Mont. Indep. Living Project v. State, DOT,

2019 MT 298, ¶ 21, 398 Mont. 204, 454 P.3d 1216 (citations omitted). This Court

construes statutes as a whole and in a manner to avoid their unconstitutionality.

See State v. Felde, 2021 MT 1, ¶ 16, 402 Mont. 391, 478 P.3d 825; Mont. Indep. Living

Project, ¶ 14.

¶57 Section 45-5-625(4), MCA, imposes a mandatory 100-year sentence. It provides

further that an offender released from the mandated prison term will be “subject to

supervision by the [DOC] for the remainder of the offender’s life.” Under Article II,

Section 28, of the Montana Constitution, “[f]ull rights are restored by termination of state

27
supervision for any offense against the state.” A person convicted under

§ 45-5-625(4), MCA, is sentenced to a lifetime of DOC supervision, notwithstanding the

offender’s release from incarceration.

¶58 In Steilman v. Michael, 2017 MT 310, ¶ 19, 389 Mont. 512, 407 P.3d 313, we

rejected the State’s argument that a sentence term of 110 years was, as a matter of law, not

equivalent to a life sentence. We held, though, that because the offender in that case was

eligible for day-for-day good time and could discharge his prison sentence in as little as

31-1/3 years, he did not have a de facto life sentence. Steilman, ¶¶ 22–23. Steilman is not

directly on point here, because it challenged a sentence imposed on a youthful offender

under recent United States Supreme Court pronouncements. Nonetheless, we looked

toward the “practical effect” of the sentence at issue in reaching our decision. See Steilman,

¶ 23. Here, § 45-5-624(4), MCA, applies only when the offender is eighteen years of age

or over—every offender convicted under this section will be at least 118 years of age when

released from state supervision, even if his term of actual imprisonment is less. In such a

circumstance, it is reasonable to construe subsections (a) and (b) together to mean that, as

a “practical effect” of the sentence, the offender is under a mandatory lifetime sentence

when a 100-year term is imposed.4 And, should an offender be released from imprisonment

4
This distinguishes the cases from other states that Smith cites in support of his argument. Each
involved situations where an individual had completely served the original sentence and was no
longer under state supervision. See Park v. Georgia, 825 S.E.2d 147, 152–53, 158 (Ga. 2019)
(holding that a statute requiring persons designated as “sexually dangerous predators” be subjected
to GPS monitoring for life, even after offenders had completed their entire sentence and had their
privacy rights restored, facially violated the Fourth Amendment); North Carolina v. Grady,
831 S.E.2d 542, 553 (N.C. 2019) (concluding that the state’s GPS monitoring program is
unconstitutional in its application to individuals “based solely on their status as a statutorily
defined ‘recidivist’ who have completed their prison sentences and are no longer supervised by
28
early, he still will be subject to DOC supervision for the balance of the sentence. Smith

agrees that GPS monitoring is permissible during this period of supervision. The

hypothetical circumstances Smith suggested at argument and in his briefs are not at issue

here and would have to be raised on an as-applied basis.

¶59 The Legislature chose to have adults convicted of sexual abuse of children twelve

or younger supervised for life, and Smith does not argue or demonstrate that such a

punishment is invalid in all circumstances. The statute’s requirement for lifetime

supervision accords with a stated purpose of Montana’s sentencing policies to “protect the

public” and to “punish each offender commensurate with the nature and degree of harm

caused by the offense and to hold an offender accountable.”

See § 46-18-101(2)(a), (b), MCA. Construing § 45-5-625(4)(b), MCA, in harmony with

§ 45-5-625(4)(a), MCA, we conclude that it passes facial constitutional muster.

CONCLUSION

¶60 For the foregoing reasons, Smith’s conviction and sentence are affirmed.

/S/ BETH BAKER

We Concur:

/S/ MIKE McGRATH
/S/ JIM RICE
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON
/S/ JAMES JEREMIAH SHEA

the State”); South Carolina v. Ross, 815 S.E.2d 754, 759 (S.C. 2018) (concluding that a court must
make a reasonableness determination under the totality of the circumstances before imposing
automatic, mandatory GPS monitoring on individuals who fail to register as sex offenders after
they have completed serving their underlying sentences).
29