State v. A. Twardoski

07/20/2021

DA 18-0543
Case Number: DA 18-0543

IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 179

STATE OF MONTANA,

Plaintiff and Appellee,

v.

ALAN PETER TWARDOSKI,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC 17-59
Honorable James A. Haynes, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Kristina L. Neal, Assistant Appellate
Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana

William E. Fulbright, Ravalli County Attorney, Hamilton, Montana

Submitted on Briefs: March 17, 2021

Decided: July 20, 2021

Filed:

cir-641.—if
__________________________________________
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Defendant and Appellant Alan Peter Twardoski (Twardoski) appeals from the

June 1, 2018 Order Re: Cody Hill – CCJI and the July 26, 2018 Judgment issued by the

Twenty-First Judicial District Court, Ravalli County, following his convictions for Sexual

Assault, three counts of Sexual Intercourse Without Consent, and Sexual Abuse of

Children, all felonies, after a jury trial.

¶2 We restate the issues on appeal as follows:

1. Whether the District Court abused its discretion by not requiring the State to
provide additional Confidential Criminal Justice Information from the Cody Hill
investigation after it conducted an in camera review of the file.

2. Whether the District Court erred by excluding evidence of Cody Hill’s near
contemporaneous sexual abuse of I.A., thereby violating Twardoski’s
constitutional right to present a defense.

¶3 We affirm in part, reverse in part, and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 In the summer of 2016, I.A., then thirteen years old, lived in a cabin with her mother

on property owned by I.A.’s maternal grandparents near Corvallis. I.A.’s grandparents

lived in the main house on the property, while one of I.A.’s older male cousins lived in

another building near the cabin. I.A. was being home-schooled. I.A.’s mother was a drug

addict who struggled with mental health and chemical dependency issues for years,

including frequently abusing pain medications and methamphetamine. Since

approximately 2005, I.A.’s mother had used drugs with—and those drugs were often

provided by—Twardoski. I.A. first met Twardoski when she was about six or seven.

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¶5 On June 27, 2016, Cody Hill, a nearly 40-year-old rancher and family friend of I.A.,

began to sexually abuse 13-year-old I.A. The two would enter into a “relationship” which

lasted for approximately a year and a half. On their first night together, I.A. stayed with

Hill as she was going to work on the ranch with him the next morning. Hill provided I.A.

with wine and the two drank together. Hill told I.A. he was attracted to her and then

convinced her to play a game of sexual “truth or dare.” As part of the game’s “dares,” Hill

touched I.A.’s breasts; fingered her vagina, causing her pain; grabbed I.A.’s head when

having I.A. perform oral sex on him; performed oral sex on I.A.; and threatened I.A. by

saying his son would be taken away from him if she ever told anyone about what they did.

Hill and I.A. also took a shower together.

¶6 On July 10, 2016, thirteen days after Hill employed this sexual game of “truth or

dare” to sexually abuse I.A., she went for a driving lesson with Twardoski, her mother’s

61-year-old friend and drug supplier, when I.A.’s mother was unable to take her because

she was high on prescription drugs and methamphetamine. I.A. and Twardoski drove for

a while, before turning into a field and parking. As alleged by I.A., once parked in the field

Twardoski told her she was beautiful and then convinced her to play a sexual game of

“truth or dare.” As part of the game’s “dares,” Twardoski touched I.A.’s breasts; fingered

her vagina, causing her pain; grabbed I.A.’s head when having I.A. perform oral sex on

him; performed oral sex on I.A.; and threatened I.A. by saying he would kill himself if she

told anyone about what they did. After returning to the cabin, I.A. went inside and took a

shower. I.A. left after showering and visited her cousin on the property, while Twardoski

remained at the cabin with her mother.

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¶7 Two days after her drive with Twardoski, I.A. was present when her mother and

grandmother were arguing about how much time Twardoski was spending at the cabin.

I.A.’s grandmother did not want Twardoski on the property, while her mother wanted to

continue seeing (and using drugs with) him. During this argument, I.A. told her mother

and grandmother that Twardoski had touched her body and she didn’t like it. I.A. did not

provide further details to her mother and grandmother at the time. I.A. then moved into

the main house on the property with her grandparents, while her mother moved to Bozeman

to live with her sister.

¶8 I.A. began going to counseling with Aleta Sisson, LCPC, in September of 2016. At

her third session with Sisson, in late October 2016, I.A. told Sisson that she was “sexually

assaulted by her mother’s meth dealer.” I.A. told Sisson the meth dealer’s name was Alan

and that it happened during a driving lesson in June or July of 2016. I.A. did not disclose

any information about Hill’s sexual abuse to Sisson. As a mandatory reporter, Sisson

contacted law enforcement. I.A. gave a forensic interview to Mary Pat Hansen, APRN, on

November 9, 2016, in which she told Hansen about the sexual truth or dare game in

Twardoski’s car. I.A. did not tell Hansen about the sexual truth or dare game Hill used to

sexually abuse her. On March 24, 2017, the State charged Twardoski with one count of

sexual assault, three counts of sexual intercourse without consent, and one count of sexual

abuse of children, all felonies.

¶9 On May 23, 2017, law enforcement received a tip that Hill and I.A. were involved

in an inappropriate sexual relationship. I.A. was forensically interviewed by Val Widmer

regarding her relationship with Hill in June of 2017. At this forensic interview, I.A.

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repeatedly denied any sexual relationship with Hill. In December 2017, Hill, who was on

probation after a felony DUI, was arrested on a probation violation and placed in the Ravalli

County Detention Center. On January 3, 2018, Hill called I.A. from jail. The call was

recorded. During the call, I.A. informed Hill she had told her grandmother about their

relationship. On January 5, 2018, I.A. was again forensically interviewed by Widmer.

During this interview, I.A. admitted she lied about her relationship with Hill during the

June 2017 forensic interview. I.A. told the forensic interviewer the sexual relationship with

Hill began on June 27, 2016, when she stayed at Hill’s place and the two played a sexual

game of truth or dare. I.A. also described to the interviewer the year-and-a-half long

“relationship” she had with Hill and the numerous instances of sexual abuse he inflicted on

her.

¶10 On March 5, 2018, Hill was charged in District Court with four counts of sexual

intercourse without consent, one count of attempted sexual intercourse without consent,

and one count of sexual abuse of children, all felonies, for his sexual abuse of I.A. On

May 8, 2018, the State filed a motion in limine which sought an order precluding

Twardoski from introducing evidence of Hill’s sexual abuse of I.A. under § 45-5-511(2),

MCA, Montana’s rape shield statute. On May 17, 2018, Twardoski filed the Defendant’s

Motion to Compel Production of Potential Exculpatory Evidence, seeking information

from the State, including confidential criminal justice information from the criminal file,

regarding Hill. After the parties briefed the motions, the District Court held a hearing on

May 29, 2018. The State provided the court with Hill’s file for an in camera review. On

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June 1, 2018, the District Court issued its Order Re: Cody Hill – CCJI.1 In this order, the

court held evidence of Hill’s sexual abuse of I.A. was excluded under the rape shield

statute, subject to the State’s presentation of evidence at trial, and denied Twardoski’s

motion to compel production of the State’s Hill file. The court did turn over pages 1-12 of

the Hill file to Twardoski, which contained the offense report which led to Hill’s criminal

charges.

¶11 Twardoski’s trial was held from June 11-13 and 15, 2018. At trial, the jury heard

testimony from I.A., her mother, her grandmother, her cousin, her aunt, Hansen, Sisson,

Ravalli County Sheriff’s Office Detective Chris Albright, Twardoski, Richard Churchill,

and Shellie McDonald. The tape of I.A.’s forensic interview with Hansen was also played

at trial. Outside the presence of the jury, counsel for Twardoski repeatedly requested

permission to question witnesses about Hill. With the limited exception of allowing I.A.

to confirm Hill was her boss and acted as a “father figure” to her, counsel’s requests for

permission to pose questions about Hill were denied by the District Court. Mid-trial, on

June 13, 2018, Twardoski filed the Defendant’s Notice of Intent to Testify and Motion to

Address Issues Regarding Cody Lee Hill and Motion to Allow Appearance of Cody Lee

Hill. The District Court issued its Order Re Cody Lee Hill that same day, denying

Twardoski permission to testify regarding Hill and quashing a subpoena for Hill to testify

at trial. The jury convicted Twardoski on all counts. Twardoski was sentenced to

1
CCJI means “confidential criminal justice information” and includes, among other things,
“criminal investigative information[.]” Section 44-5-103(3), MCA.

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concurrent sentences of 50 years of incarceration, with 25 years suspended, on each count,

and designated a Tier II sexual offender. Hill ultimately pled guilty to all charges relating

to his sexual abuse of I.A. and was sentenced to eighty years in prison.

¶12 Twardoski appeals. Additional facts will be discussed as necessary below.

STANDARD OF REVIEW
¶13 We review a district court’s decision regarding matters of discovery for an abuse of

discretion. State v. Pope, 2019 MT 200, ¶ 10, 397 Mont. 95, 447 P.3d 469 (Pope II) (citing

State v. Pope, 2017 MT 12, ¶ 16, 386 Mont. 194, 387 P.3d 870 (Pope I)). “A district court

abuses its discretion if it acts arbitrarily, unreasonably, or without employing conscientious

judgment, resulting in substantial injustice.” Pope II, ¶ 10 (citing State v. Hart, 2009 MT

268, ¶ 9, 352 Mont. 92, 214 P.3d 1273).

¶14 A district court has broad discretion to determine the admissibility of evidence and

we generally review evidentiary rulings for an abuse of discretion. State v. Walker, 2018

MT 312, ¶ 11, 394 Mont. 1, 433 P.3d 202 (citing State v. Madplume, 2017 MT 40, ¶ 19,

386 Mont. 368, 390 P.3d 142). While a district court has broad discretion when

determining the relevancy and admissibility of evidence, it is bound by the Rules of

Evidence and applicable statutes in exercising its discretion. State v. Lake, 2019 MT 172,

¶ 22, 396 Mont. 390, 445 P.3d 1211 (citations omitted). Where a district court’s

evidentiary ruling is based on its interpretation of a statute, this Court reviews the district

court’s ruling de novo for correctness. Lake, ¶ 22.

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 DISCUSSION

¶15 1. Whether the District Court abused its discretion by not requiring the State to
provide additional Confidential Criminal Justice Information from the Cody Hill
investigation after it conducted an in camera review of the file.

¶16 Twardoski asserts the District Court erred by not disclosing more confidential

criminal justice information from the Cody Hill file to him. Twardoski also takes issue

with the District Court’s order stating it “reviewed in camera the 124 pages of Hill/DC

18-76 CCJI and determine[d] it contains no exculpatory evidence favorable to Twardoski.”

Twardoski asserts this language gives no indication the District Court “reviewed the audio,

video and photograph image files.” Despite determining the Hill file contained no

exculpatory evidence to Twardoski, the District Court nevertheless ordered the State to

turn over pages 1-12 of the file, “to ensure Twardoski has access to sufficient

cross-examination material, only if such use is permitted by the [c]ourt.” Pages 1-12

contain the offense report which led to Hill’s criminal charges. The State asserts the

District Court did not abuse its discretion by denying Twardoski the opportunity to review

the rest of the Hill file.

¶17 “A defendant has a right to discover exculpatory evidence.” State v. Stutzman, 2017

MT 169, ¶ 28, 388 Mont. 133, 398 P.3d 265 (citing State v. Duffy, 2000 MT 186, ¶ 19, 300

Mont. 381, 6 P.3d 453). A defendant’s right to discover exculpatory evidence is derived

from the right to confront witnesses. Duffy, ¶ 19 (citing State v. Reynolds, 243 Mont. 1, 7,

792 P.2d 1111, 1115 (1990)). Exculpatory evidence “includes that which is favorable to

the accused and material to either guilt or to punishment,” regardless of whether that

evidence is ultimately admissible at trial. Stutzman, ¶ 28 (citations omitted). Favorable

8
evidence includes evidence which could potentially lead directly to admissible exculpatory

evidence. Stutzman, ¶ 28 (citing State v. Weisbarth, 2016 MT 214, ¶ 24, 384 Mont. 424,

378 P.3d 1195).

¶18 “When a defendant requests a crime victim’s confidential records, the district court

has a ‘duty to conduct an in camera review to ascertain whether there [is] any exculpatory

evidence in the files.’” Stutzman, ¶ 29 (quoting State v. Johnston, 2014 MT 329, ¶ 9, 377

Mont. 291, 339 P.3d 829). If the confidential information within the records is not

exculpatory or necessary for the preparation of the defense, a defendant’s right to review

the information is outweighed by the victim’s right to confidentiality. Duffy, ¶ 21.

Confidential criminal justice information may be disseminated “to those authorized to

receive it by a district court[.]” Section 44-5-303(1), MCA.

¶19 We begin with Twardoski’s complaint regarding the District Court’s statement it

“reviewed in camera the 124 pages of Hill/DC 18-76 CCJI and determine[d] it contains no

exculpatory evidence favorable to Twardoski.” Twardoski asserts this gives no indication

of whether the court reviewed anything beyond the 124 pages of the file, including audio,

video, photographs, and cell phone information. Elsewhere in its order, however, the

District Court repeatedly referenced the “Hill/DC 18-76 evidence,” “Hill/DC 18-76 related

evidence,” and “Hill/DC 18-76 notes and all related CCJI[.]” The State notes the District

Court’s order gives no indication it did not conduct an in camera review of the entire Hill

file.

¶20 We have independently reviewed the entirety of the Hill CCJI file and agree with

the District Court that no exculpatory evidence favorable to Twardoski exists beyond what

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he was already given by the District Court’s order turning over pages 1-12 of that file.

Beyond the 124 Bates-stamped pages, the file also contains photographs, video and audio

recordings, and information extracted from both Hill’s and I.A.’s cell phones. None of the

evidence contained within the file contains information previously unknown to Twardoski,

and the offense report (pages 1-12 of the file) provided to Twardoski by the District Court

succinctly summarizes the evidence contained within the remaining 112 pages. The cell

phone extractions provided little evidence, and none related to Twardoski or provided

further evidence of the abuse by Hill beyond that contained in pages 1-12 of the

investigative file. The photographs in the file contained pictures of Hill’s body, residence,

and trash and are similarly not exculpatory evidence to which Twardoski would be entitled.

The content of the audio recording of Hill’s jailhouse call to I.A. was already known to

Twardoski. Finally, the content of the video recordings in the file was also known to

Twardoski. The District Court correctly conducted an in camera review of the Hill file and

turned over pages 1-12 of that file to Twardoski. The remainder of the file was neither

exculpatory to Twardoski nor necessary for the preparation of his defense, as Twardoski

already knew the information contained within. Twardoski therefore was not entitled to

more of the Hill CCJI file than what he was provided by the District Court. Duffy, ¶ 21.

¶21 While the District Court could perhaps have provided more information to make it

clear it reviewed the entire Hill file, we find no abuse of discretion in the court’s ultimate

decision. The District Court’s decision was not arbitrary, unreasonable, or without

conscientious judgment, and Twardoski did not suffer a substantial injustice by not

receiving the entire Hill file. Pope II, ¶ 10. The District Court is affirmed on this issue.

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¶22 2. Whether the District Court erred by excluding evidence of Cody Hill’s near
contemporaneous sexual abuse of I.A., thereby violating Twardoski’s constitutional
right to present a defense.

¶23 We turn now to the District Court’s exclusion of the Cody Hill evidence from

Twardoski’s trial. The court ruled the evidence was excluded pursuant to Montana’s rape

shield statute. Twardoski asserts the exclusion of this evidence violated his constitutional

right to confront his accuser and present a defense. The State argues the District Court

properly precluded Twardoski from presenting the Hill evidence at trial because that

evidence was barred by application of the rape shield statute.

¶24 Montana’s rape shield statute states, in relevant part, that “[e]vidence concerning

the sexual conduct of the victim is inadmissible in prosecutions under this part except

evidence of the victim’s past sexual conduct with the offender or evidence of specific

instances of the victim’s sexual activity to show the origin of semen, pregnancy, or disease

that is at issue in the prosecution.” Section 45-5-511(2), MCA. “The purpose of the rape

shield statute is to prevent the trial from becoming a trial of the victim.” State v.

MacKinnon, 1998 MT 78, ¶ 35, 288 Mont. 329, 957 P.2d 23 (quoting State v. Weeks, 270

Mont. 63, 89, 891 P.2d 477, 493 (1995)). We have previously noted that “[c]onflict can

arise between the rape shield statute and a defendant’s rights to confront his accuser and

present evidence at trial in defense of the charge against him.” State v. Colburn, 2016 MT

41, ¶ 24, 382 Mont. 223, 366 P.3d 258 (Colburn I).

¶25 In this case, Twardoski’s defense was that I.A. fabricated the allegations against

him—essentially alleging I.A. transferred the abuse actually committed on her by Hill, who

I.A. liked, to Twardoski, who I.A. despised. Twardoski alleged I.A. had a motive to

11
fabricate the allegations because her mother was a drug addict who used drugs with him—

removing Twardoski from the equation would remove her mother’s easy access to the

drugs which were destroying her (and I.A.’s) life.

¶26 While a district court has broad discretion when determining the relevancy and

admissibility of evidence, it is bound by the Rules of Evidence and applicable statutes in

exercising its discretion. Lake, ¶ 22. Where a district court’s evidentiary ruling is based

on its interpretation of a statute, this Court reviews the district court’s ruling de novo for

correctness. Lake, ¶ 22. We also review a district court’s application of a statute for

correctness. State v. Aguado, 2017 MT 54, ¶ 9, 387 Mont. 1, 390 P.3d 628 (citing

Colburn I, ¶ 6). Accordingly, on appeal, this Court is tasked with determining whether the

District Court’s evidentiary ruling—preventing Twardoski from presenting evidence of

I.A.’s sexual abuse during the game of truth or dare with Hill—was correct as its ruling

was based on its interpretation and application of Montana’s rape shield statute.2

2
The Dissent asserts the correct standard of review for this Court reviewing a district court’s
“application of the rape shield provisions is a manifest abuse of discretion standard.” Dissent, ¶ 41
(quoting State v. Stuit, 268 Mont. 176, 183, 885 P.2d 1290, 1295 (1994)). It further notes that
“[o]ur cases have not always clearly articulated the standard to be applied upon appellate review
of evidentiary decisions under the Rape Shield Statute.” Dissent, ¶ 41 n.1. It is true that, for many
years, this Court appeared to vacillate between reviewing such decisions for an abuse of discretion
and de novo for correctness. Compare Stuit, 268 Mont. at 183, 885 P.2d at 1295, with State v.
Steffes, 269 Mont. 214, 231, 887 P.2d 1196, 1206 (1994). Our recent case law on this matter,
however, makes it clear de novo review is required for appellate review of a district court’s
decision to exclude evidence pursuant to the rape shield statute, as such decisions necessarily
implicate a defendant’s constitutional right to confront witnesses and present a complete defense.
See, e.g., Lake, ¶¶ 22, 42; Walker, ¶¶ 11, 59; State v. Daffin, 2017 MT 76, ¶ 13, 387 Mont. 154,
392 P.3d 150; Aguado, ¶ 9; State v. Awbery, 2016 MT 48, ¶ 10, 382 Mont. 334, 367 P.3d 346;
Colburn I, ¶ 6; and State v. Patterson, 2012 MT 282, ¶ 10, 367 Mont. 186, 291 P.3d 556, overruled,
in part, on other grounds by City of Helena v. Frankforter, 2018 MT 193, ¶¶ 13-14, 392 Mont.
277, 423 P.3d 581. See also Colburn I, ¶ 38 (McKinnon, J., concurring) (noting that because the
district court’s interpretation and application of the rape shield statute implicated Colburn’s right
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¶27 Under the rape shield statute, a “court balancing the interests of the defendant with

those protected by the Rape Shield Law should require that the defendant’s proffered

evidence is not merely speculative or unsupported.” State v. Awbery, 2016 MT 48, ¶ 20,

382 Mont. 334, 367 P.3d 346. The court should also consider whether the proffered

evidence is relevant and probative under M. R. Evid. 401 and 402, whether the evidence is

merely cumulative of other admissible evidence, and whether the probative value of the

evidence is outweighed by its prejudicial effect under M. R. Evid. 403. Awbery, ¶ 20

(citations omitted). The court must balance these considerations to ensure a fair trial for

the defendant while also “upholding the compelling interest of the Rape Shield Law in

preserving the integrity of the trial and keeping it from becoming a trial of the victim.”

Awbery, ¶ 20 (citing State v. Anderson, 211 Mont. 272, 283, 686 P.2d 193, 199 (1984)).

¶28 Upon our review of the record, we find the evidence of Hill’s sexual abuse of I.A.

was neither speculative nor unsupported. By the time Twardoski discovered Hill had been

sexually abusing I.A. during the time period she accused Twardoski of abuse and sought

to introduce such evidence, the State had already charged Hill with four counts of sexual

to a fair trial, de novo review of the district court’s decision was required). Further, we note Stuit’s
claim that the “standard of review for the application of the rape shield provisions is a manifest
abuse of discretion,” Stuit, 268 Mont. at 183, 885 P.2d at 1295 cites to State v. Howell, 254 Mont.
438, 445, 839 P.2d 87, 91 (1992), and State v. Van Dyken, 242 Mont. 415, 435, 791 P.2d 1350,
1362-63 (1990), for this contention. Howell similarly claimed that “the standard of review for
[application of the rape shield statute] is manifest abuse of discretion,” Howell, 254 Mont. at 445,
839 P.2d at 911, citing only to Van Dyken for this contention. Van Dyken involved the rebuttal
testimony of an expert witness in a deliberate homicide case, and did not involve the interpretation
or application of the rape shield statute in any way. To the extent Stuit and Howell relied on Van
Dyken to determine the standard of review for the application of the rape shield statute is for a
“manifest abuse of discretion,” they were, and are, incorrect.

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intercourse without consent, one count of attempted sexual intercourse without consent,

and one count of sexual abuse of children for his conduct with I.A.3 After first lying to a

forensic interviewer about the sexual relationship with Hill in June of 2017, I.A. disclosed

the abuse in a second forensic interview in January of 2018. During this interview, I.A.

specifically noted Hill’s sexual abuse began on June 27, 2016, when the two played a

sexual game of “truth or dare” identical in nature to her allegations against Twardoski. In

addition, prior to the second forensic interview, a jailhouse call from Hill to I.A. discussing

their relationship was recorded while Hill was incarcerated for a different matter.

¶29 Turning to whether the evidence of Hill’s sexual abuse of I.A. was relevant and

admissible, we conclude it is both relevant and admissible. M. R. Evid. 401 defines

relevant evidence to include “evidence bearing upon the credibility of a witness,” and,

pursuant to M. R. Evid. 402, generally “relevant evidence is admissible[.]” “M. R. Evid.

403 provides that, although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” State v. Colburn, 2018 MT 141, ¶ 16, 391 Mont.

449, 419 P.3d 1196 (Colburn II) (citing State v. Ankeny, 2018 MT 91, ¶ 33, 391 Mont. 176,

417 P.3d 275).

¶30 Here, the probative value of the evidence of Hill’s sexual abuse of I.A. through the

use of sexual “truth or dare” just 13 days before the incident with Twardoski is not

3
As previously noted, Hill pled guilty to all counts and was sentenced to eighty years in prison.

14
“substantially outweighed” by any of the considerations listed in M. R. Evid. 403.

Twardoski’s sole defense to I.A.’s allegations was that I.A. fabricated the allegations

against him. With no physical evidence in this case, Twardoski’s defense was entirely

dependent on undermining I.A.’s credibility.

¶31 A defendant charged with a crime has constitutional rights under both the Sixth

Amendment to the United States Constitution and Article II, Section 24 of the Montana

Constitution to both confront his or her accuser and to present evidence in his or her

defense. Colburn I, ¶ 24 (citations omitted); Lake, ¶ 19 (citations omitted). “[T]he

Constitution guarantees criminal defendants a meaningful opportunity to present a

complete defense.” State v. Reams, 2020 MT 326, ¶ 18, 402 Mont. 366, 477 P.3d 1118

(quoting State v. Glick, 2009 MT 44, ¶ 29, 349 Mont. 277, 203 P.3d 796). “A district court

may not apply the Rape Shield Law to bar all evidence concerning a victim’s past sexual

conduct.” Lake, ¶ 28 (citing Walker, ¶ 55) (emphasis in original).

¶32 Twardoski argues he was denied his constitutional right to present a complete

defense by the District Court’s preclusion of the evidence of Hill’s sexual abuse of I.A.

We agree. As in Colburn I, Twardoski’s “defense to the charges . . . depended upon

undermining the credibility” of I.A.’s account that he sexually abused her. Colburn I, ¶ 27.

“Cross-examination is the principal means by which the believability of a witness and the

truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110

(1974). At trial, the State presented I.A. as an immature, isolated, and home-schooled

young girl, essentially living on a commune in the country with her family. I.A. then took

the stand and described, in explicit detail, being sexually abused by Twardoski during a

15
game of sexual “truth or dare.” The clear implication of this presentation of evidence is

that I.A. was someone who could both be taken advantage of by an abuser and who would

not be able to specifically describe the explicit acts if the game had not occurred. In

addition, I.A. testified she was familiar with the game of truth or dare before Twardoski’s

alleged abuse because she had previously played “an innocent game” of truth or dare with

friends. She also testified she played truth or dare with Cody Hill. Due to the District

Court’s ruling which precluded Twardoski from presenting evidence regarding Hill,

Twardoski was prevented from effectively cross-examining I.A.’s veracity regarding her

testimony she knew truth or dare as “an innocent game” before the incident during the drive

with Twardoski. In fact, I.A. had, less than two weeks beforehand, been sexually abused

by Hill through his use of a sexual game of truth or dare identical to that I.A. alleged against

Twardoski. Further, the game’s escalating sexual “dares” followed a near exact similar

progression as that I.A. alleged Twardoski used on her during their driving lesson.

Twardoski was also precluded from presenting evidence I.A. was willing to, and had, lied

to protect Hill during the June 2017 forensic interview, which would again bear on her

credibility.

¶33 Twardoski, in addition to alleging I.A. had a motive to fabricate the allegations

against him due to his drug use with (and supply to) I.A.’s mother, also alleged I.A.’s

detailed sexual knowledge came from her involvement with Cody Hill. In Colburn I, we

reversed a district court’s application of the rape shield statute under similar circumstances.

See Colburn I, ¶¶ 26, 29. There was essentially a straight-line correlation between the

victim’s prior abuse and the allegations against Colburn. See Colburn I, ¶¶ 20, 26. The

16
District Court here compared Twardoski’s proffered defense to that of Awbery. The facts

of this case are very different from the facts of Awbery.

¶34 In Awbery, a defendant sought to introduce evidence of prior sexual abuse to

demonstrate the victims suffered from post-traumatic stress disorder (PTSD) due to the

prior sexual assaults, with the implication that therefore their allegations against him were

erroneous due to the effects of PTSD. Awbery, ¶ 13. The district court precluded the

evidence of prior assaults, noting PTSD was not diagnosed in the victims prior to Awbery’s

offenses and that there was “no evidence that there was any similarity between the prior

incidents and Awbery’s offenses[.]” Awbery, ¶ 15. We upheld the district court’s ruling,

noting that Awbery’s theory “never progressed past conjecture and speculation.” Awbery,

¶ 21. Unlike the straight-line connection between the prior abuse and allegation in

Colburn I, connecting the dots between the prior abuses and Awbery’s PTSD defense was

“far less certain and far more complicated.” Awbery, ¶ 40 (Cotter, Baker, and McKinnon,

JJ., concurring).

¶35 Here, as in Colburn I, there is a straight-line connection between I.A.’s prior sexual

abuse by Hill and the allegations she made against Twardoski—the nature and

circumstances of the allegations are quite unique and near identical right down to the very

distinct allegation of enticing I.A. to play sexual “truth or dare” with the “dares” being

identical in nature to those perpetrated by Hill. As alleged by Twardoski, I.A. had a motive

to fabricate the allegations against him as she sought to remove him, and his supply of

drugs, from her drug-addicted mother’s life. The State, and the District Court, allege I.A.

could have simply told the police Twardoski was using and supplying methamphetamine

17
and other illegal drugs to her mother if she just wanted him out of her mother’s life. Such

a theory neglects the reasonable assumption that I.A. would also be inviting police scrutiny

on her mother’s illegal drug use. It would be equally reasonable, if not more probable, for

I.A. to assume the police would arrest I.A.’s mother for using methamphetamine, and it is

clear from the evidence in this case I.A. sought to act as her mother’s protector and would

not want her mother to be arrested or sent to jail. Twardoski should have been allowed to

present the Hill evidence to demonstrate I.A.’s knowledge of specific sexual activity—an

escalating sexual game of truth or dare and the sexual acts that were part of that game—

came from Hill’s abuse in support of his theory she fabricated the allegations against him.

¶36 After our de novo review of the record, we conclude the District Court erred when

it determined Montana’s rape shield statute prevented Twardoski from presenting evidence

Hill abused I.A. in both a unique and identical manner less than two weeks before the

incident at issue in this case. Lake, ¶ 22. The District Court’s ruling frustrated Twardoski

from both confronting his accuser and presenting evidence in his defense. Colburn I, ¶ 24;

Lake, ¶ 19. As the District Court incorrectly applied the rape shield statute and “the

Constitution guarantees criminal defendants a meaningful opportunity to present a

complete defense,” Reams, ¶ 18, Twardoski should have been allowed to present the Hill

evidence at trial. Because he was not allowed to do so, a new trial is required in this case.

CONCLUSION

¶37 The District Court did not err when it determined, following its in camera inspection

of the Cody Hill file, there was not other relevant information which should have been

disclosed to Twardoski. The District Court erred, however, by misapplying Montana’s

18
rape shield statute and violated Twardoski’s constitutional rights to confront his accuser

and present evidence in his defense by disallowing evidence Hill abused I.A. in both a

unique and identical manner less than two weeks before the incident at issue in this case.

As such, we reverse and remand to the District Court for a new trial consistent with this

Opinion.

¶38 Affirmed in part, reversed in part, and remanded for a new trial.

/S/ INGRID GUSTAFSON

We concur:

/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR

Justice Jim Rice, concurring in part and dissenting in part.

¶39 I concur with Issue 1 but dissent from Issue 2.

¶40 Trial evidentiary decisions are generally reviewed for abuse of discretion, and the

trial court is given “broad discretion” to determine the admissibility of evidence. State v.

Lake, 2019 MT 172, ¶ 22, 396 Mont. 390, 445 P.3d 1211. The Court acknowledges these

principles, but does not review this evidentiary ruling for abuse of discretion. Rather, the

Court conducts de novo review, reasoning that the District Court’s decision was based on

an “interpretation” of the Rape Shield Statute. Opinion, ¶¶ 26, 36. I disagree with this

conclusion.

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¶41 While interpretation of a statute is an issue of law, the Rape Shield Statute was not

interpreted here. See State v. Walker, 2018 MT 312, ¶ 11, 394 Mont. 1, 433 P.3d 202

(noting that “to the extent the court’s ruling is based on its interpretation of an evidentiary

rule or statute, our review is de novo”) (emphasis added). That is, the District Court

precisely followed this Court’s previous interpretation of the statute to undertake the

required balancing of interests. The District Court began by reasoning that, “[i]n balancing

the competing rights [protecting the victim from evidence of past sexual actions and

ensuring the defendant’s rights to due process and confrontation], the Court applies the test

recently articulated in State v. Awbery, 2016 MT 48, ¶ 20, 382 Mont. 334, 367 P.3d 346.”

The District Court then assessed the evidentiary considerations with repeated citations to

the test or principles this Court utilized in Awbery and in State v. Colburn, 2016 MT 41,

382 Mont. 223, 366 P.3d 258, and did not premise its ruling upon an interpretation of the

Statute. Thus, appellate review of the District Court’s ruling does not present a binary

decision of correctness, but an assessment of the District Court’s balancing of interests

under the particular circumstances of this case. The reasoning of the Court’s Opinion—

that de novo review is necessary because “this Court is tasked with determining whether

the District Court’s evidentiary ruling . . . was correct[,] as its ruling was based upon its

interpretation and application of Montana’s rape shield statute[,]” Opinion, ¶ 26—would

require de novo review of all Rape Shield trial rulings, because the Statute is always

“applied” in the requisite balancing process. We have held that “[t]he standard of review

20
for the application of the rape shield provisions is a manifest abuse of discretion standard.”

State v. Stuit, 268 Mont. 176, 183, 885 P.2d 1290, 1295 (1994).1

¶42 The Court tells a simple “straight-line” story, Opinion, ¶¶ 33, 34, which gives the

impression I.A. was an isolated minor who offered two identical accounts of being sexually

abused by two adult men, 13 days apart, but the Opinion’s version of the story does not

provide a full and accurate rendering of the record, in my view. More concerning, I believe

the Court’s reasoning stereotypes minor victims and undercuts the protections of the Rape

Shield Statute, especially for minors who have been abused more than once. Sadly, that is

not an uncommon occurrence. See Colburn, ¶¶ 20, 26; Awbery, ¶ 12; State v. MacKinnon,

1998 MT 78, ¶ 9, 288 Mont. 329, 957 P.2d 23.

¶43 On July 10, 2016, I.A.’s Mother had promised to take I.A. for a driving lesson, but

was temporarily incapacitated from drug usage. I.A. reluctantly agreed to accept a driving

1
Our cases have not always clearly articulated the standard to be applied upon appellate review of
evidentiary decisions under the Rape Shield Statute. See, e.g., Colburn, ¶ 29 (noting that “[t]he
District Court abused its discretion by mechanistically applying the Rape Shield Law to exclude
Colburn’s proffered evidence”). However, I believe our cases can be reconciled by clarifying we
exercise de novo review of rulings that interpret the substance of the Statute, as stated in Walker,
while reviewing for abuse of discretion a trial court’s balancing of interests based upon the
evidentiary circumstances of each case, as stated in Stuit. An abuse of discretion review is
consistent with our review of evidentiary inquiries we require the trial court to make in conjunction
with the Rape Shield Statute: “[t]he court should consider whether the evidence is relevant and
probative (Rules 401 and 402, M. R. Evid.); whether the evidence is merely cumulative of other
admissible evidence; and whether the probative value of the evidence is outweighed by its
prejudicial effect (Rule 403, M. R. Evid.)[.]” Awbery, ¶ 20. I believe the particular decision made
here by the District Court is reviewable for abuse of discretion. See also, Robert Steinbach &
Esther Seitz, Unscrambling the Confusion: Applying the Correct Standard of Review for
Rape-Shield Evidentiary Rulings, 34(2) Am. J. Trial Advoc. 281, 282, 298 (2010) (concluding,
after noting “[u]nder various states’ case law, the applicable standard of review in evaluating a
trial court’s decision to admit or exclude evidence under a rape-shield statute is completely
muddled,” that “the abuse of discretion standard fits best for review of rape-shield decisions”).

21
lesson from 61-year-old Twardoski, Mother’s drug supplier and fellow user, who

volunteered to provide one to I.A. When I.A. entered Twardoski’s vehicle, she noted the

driver side interior door panel was disassembled and not in proper working order, which

struck her as odd. The two departed and drove around nearby streets. At one point,

Twardoski instructed I.A. to turn into a field and park the car. There, Twardoski asked a

series of invasive personal questions and told I.A. she was beautiful, while rubbing her leg.

Twardoski then posed that they play a game of “Truth-or-Dare,” wherein he challenged

I.A. to a series of inappropriate “dares.” Fearful of Twardoski’s anger, I.A. begrudgingly

complied.

¶44 The first dare was for I.A. to show her breasts to Twardoski. I.A. attempted to avoid

the task, but when Twardoski would not relent, she complied. Twardoski leaned over and

French kissed her, then aggressively groped I.A.’s her right breast, causing pain.

Twardoski next dared I.A. to put her hands down his pants, which she did momentarily

before withdrawing. Twardoski then dared I.A. to let him put his hand under her shorts,

which Twardoski did, shoving two fingers into I.A.’s vagina. Recounting the event, I.A.

described a pinching pain when this occurred, and she pulled Twardoski’s hand away.

Twardoski next exposed his penis to I.A. and requested oral sex from her, which he

compelled by pulling I.A.’s head down upon his lap. After less than a minute, I.A. pulled

up her head and spit, at which Twardoski laughed. Finally, Twardoski performed oral sex

on I.A. Though she initially refused, she relented after Twardoski threatened to tell her

family that she had forced herself on him. I.A. testified about having a specific memory

of Twardoski’s “creepy smile” with missing or misshapen teeth.

22
¶45 On the way back, Twardoski warned I.A. that there would be consequences if she

revealed to others what they did. Confused by the disassembled driver’s door panel, I.A.

was unable to open the door to exit, and Twardoski had to let her out. Mother testified that

I.A. exhibited appearances of fear, shame, and anger upon returning to the cabin. I.A.

immediately took a shower. Forty-five minutes later, frustrated that Twardoski remained

at the cabin, I.A. left and went to the residence of T.A., her cousin who lived nearby. T.A.

surmised that I.A. did not want Twardoski at Mother’s house, and he went there two or

three times that day to inform Mother that Twardoski’s presence made I.A. uncomfortable.

However, Twardoski remained at the cabin until about 11:30 p.m. The next day,

Twardoski returned with fast food for Mother and I.A., and again spoke with I.A. about

not telling what had happened.

¶46 Two days after the assault occurred, Mother and Grandmother were arguing in I.A.’s

presence regarding Mother’s continued interaction with Twardoski and his continued

presence at the cabin. During this argument I.A. generally disclosed to Mother and

Grandmother what Twardoski had done during the driving lesson. I.A. did not discuss

details, stating only that “he touched my body and I didn’t like it.” As a result, I.A. moved

into the main house with her grandparents and began seeing a counselor, while Mother

moved to Bozeman to live with her sister to seek recovery from her drug abuse. In late

October 2016, I.A. disclosed Twardoski’s assault to her counselor, Aleta Sisson, in general

terms, merely identifying Twardoski as the perpetrator and stating he had pushed her head

into his lap. As a mandatory reporter, Sisson contacted local law enforcement, leading

ultimately to charges against Twardoski in March 2017.

23
¶47 Undisclosed by I.A. during this time and generally unknown was that I.A. was

engaged in an ongoing relationship with 39-year-old Cody Hill, a longtime family friend

who allowed I.A. to work for him on a ranch where he lived, a relationship that I.A. would

describe as a “normal boyfriend-girlfriend relationship.” I.A. would initially deny the

existence of a sexual relationship to law enforcement, but the abuse was discovered after

Hill, who was arrested for violating the terms of his probation for a prior felony, called I.A.

from jail on a recorded call. It was in early 2018, a year and a half after disclosing

Twardoski’s actions on July 10, 2016, that I.A. disclosed the nature of her relationship with

Hill. Hill would often take I.A. to work and she would spend the night at his residence so

that they could get an early start the next morning. On June 27, 2016, Hill engaged I.A. in

a Truth-or-Dare ruse with a series of progressive dares. Hill’s dares led to the two of them

drinking wine and escalated to massages, fondling, kissing, oral sex, and taking a shower

together. Hill warned I.A. of the ramifications if anyone found out what they did and urged

her to keep it secret. Hill and I.A. maintained their illicit relationship for a long period,

before and after the alleged assault by Twardoski in July 2016. Hill was manipulative of

the young I.A., and while I.A. was not old enough to legally consent to sexual intimacy

with Hill, she clearly believed that she had voluntarily engaged with Hill. As the District

Court found, the sexual relationship between Hill and I.A. was “voluntary yet unlawful.”

¶48 There are numerous distinctives between I.A.’s alleged experiences with Hill and

Twardoski. First and foremost, I.A. considered Hill, in stark contrast to her experience

with Twardoski, to be a volitional relationship partner. Her relationship with Hill extended

over an extended period, while her forced traumatic exposure to Twardoski occurred within

24
a single episode on a single day. Even though she was unable to legally consent to sex,

I.A. is entitled, under the Rape Shield Statute, to respect of her volitional choices and

shielding of her past sexual behaviors in the same manner as an adult, so that Twardoski’s

trial does not become “a trial of the victim.” Awbery, ¶ 27; accord Mont. Const. art. II,

§ 15, (declaring that “[t]he rights of persons under 18 years of age shall include, but not be

limited to, all the fundamental rights of this Article”). Thus, the relational distinctives at

issue here should not be discarded merely because I.A. is a minor. Of course, such

recognition does not end the analysis, but this point should not be lost: Twardoski is

seeking to admit evidence of I.A.’s past volitional sexual actions in a trial about his forced

sexual actions upon her.

¶49 I.A. reported that she and Hill drank wine on June 27, 2016; there was no report of

wine with Twardoski on July 10, 2016. Twardoski’s alleged abuse occurred in a car, Hill’s

in a house. I.A. described Twardoski’s car as uniquely having a broken door that hindered

her from exiting; I.A. was not physically trapped with Hill. I.A. reported being repulsed

during oral sex by Twardoski’s “creepy smile” with missing or misplaced teeth.

Twardoski’s actions were followed by I.A. acting with fear, shame and anger; no such

reaction is evidenced by I.A. following her time with Hill. After Twardoski’s abuse, I.A.

immediately showered and then withdrew to her cousin’s place to get away from

Twardoski, being so upset that her cousin attempted several times to have her Mother make

Twardoski leave; no such reactions are reflected with Hill. Twardoski returned the next

day with food and again warned I.A. not to tell anyone.

25
¶50 The Court’s oversimplified reasoning is that because I.A., a minor, reported similar

sexual acts committed by adult men within a short period, evidence of her prior acts must

be admissible, essentially as a matter of law. However, needless to say, sexually intimate

acts such as oral sex are commonly engaged in, and such commonality alone should not

serve to weaken the Rape Shield Statute, especially when a minor is the victim. Indeed, as

the District Court reasoned, “it could just as well be argued” that I.A. “falsely imputed onto

Hill the actions of Twardoski [] when she disclosed her relationship with Hill 1 ½ years

later.” Nor is the Truth-or-Dare ruse particularly material in the context of child sexual

abuse. I.A. testified to being aware of the “game” from her own social circles, and use of

such sex games is a recognized tool for sexual grooming of minors by their molesters. See

generally, Georgia M. Winters & Elizabeth L. Jeglic, Stages of Sexual Grooming:

Recognizing Potentially Predatory Behaviors of Child Molesters 38:6, Deviant Behavior,

724, 724-33 (2017). The Court’s comparison of I.A.’s experiences fails to account for the

most important evidence about the assaults: I.A.’s recollection of, and reaction to, each.

The record reflects that I.A. expressed and demonstrated fear, shame, anger, revulsion, a

feeling of uncleanness, frustration, flight, and anxiety following Twardoski’s alleged

assault. In contrast, I.A. portrayed her relationship with Hill to be a “normal

boyfriend-girlfriend relationship.” These distinctives, particularly the many unique facts

26
presented by I.A.’s report about Twardoski’s assault absent from her account about Hill,

must also be considered.2

¶51 On trial evidentiary matters, a district court “abuses its discretion when it acts

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

reason, resulting in substantial injustice.” State v. Smith, 2021 MT 148, ¶ 14, 404 Mont.

245, ___ P.3d ___ (citation omitted); see also Chipman v. Northwest Healthcare Corp.,

2012 MT 242, ¶ 17, 366 Mont. 450, 288 P.3d 193 (noting that “[t]he abuse of discretion

question ‘is not whether this Court would have reached the same decision, but, whether the

district court acted arbitrarily without conscientious judgment or exceeded the bounds of

reason’”) (quoting Newman v. Lichfield, 2012 MT 47, ¶ 22, 364 Mont. 243, 272 P.3d 625).

The District Court’s ruling in this matter should be reviewed on appeal for abuse of

discretion, and I would conclude the ruling was neither arbitrary nor lacking in

conscientious judgment for several reasons. First, during the trial, the District Court

permitted Twardoski to address his asserted premise that I.A. had falsely accused him in

“revenge” for his negative influence upon her Mother, the purpose for which he sought

admission of I.A.’s interactions with Hill. During cross examination of I.A., defense

counsel asked several questions to probe this motive, concluding with the following direct

exchange:

Defense: Were you [accusing Twardoski of sexual abuse] to protect your
mom, to get Mr. Twardoski out of her life?

2
To reiterate, this comparison in no way approves of Hill’s “voluntary yet unlawful” abusive
relationship with I.A., but simply notes the evidentiary distinctions that should be credited in the
current case involving Twardoski.

27
 I.A.: Are you trying to say I lied?

Defense: No. I’m asking if you made that disclosure to protect your mom
from Mr. Twardoski.

I.A.: No. I told my mother and my grandmother because I wanted to tell
them.

Defense: Pass the witness.

This exchange was preceded by testimony indicating that I.A. was Mother’s primary

caretaker and that I.A. was unhappy with Mother’s interactions with Twardoski, all of

which placed the revenge theory before the jury.

¶52 Although permitting Twardoski to inquire about his “revenge theory”—that I.A.

was merely fabricating the allegations to remove him from Mother’s and her life—the

District Court, for purposes of its Rape Shield Statute analysis, found the theory entirely

speculative, because there was no evidence to support it outside of Twardoski’s

self-condemning (and self-serving) bad behaviors (determining that “Twardoski provides

no facts, other than conceding his long-term methamphetamine use with I.A.’s mother, to

explain why I.A. would choose to fabricate these sexual assault allegations”). We have

held that the Constitution “does not require a blanket exception to rape shield statutes for

all evidence related to motive to fabricate. Speculative or unsupported allegations are

insufficient to tip the scales in favor of a defendant’s right to present a defense and against

the victim’s rights under the rape shield statute.” State v. Johnson, 1998 MT 107, ¶ 24,

288 Mont. 513, 958 P.2d 1182 (emphasis added). The Court makes the unremarkable

determination that the abuse by Hill was “neither speculative nor unsupported,” Opinion,

28
¶ 28, and I agree it was not, but that is not the issue; the question is whether the revenge

theory as I.A.’s motive was speculative, and it was. Its speculative nature, combined with

the opportunity the District Court nonetheless permitted Twardoski to pursue at trial,

demonstrates that Twardoski’s constitutional trial rights were protected without a need to

open an inquiry into I.A.’s past sexual behaviors. Johnson, ¶ 24.

¶53 The same trial judge who presided in Colburn also presided in this case, and the

judge carefully considered and balanced the competing interests at issue as required by that

case and our subsequent decision in Awbery. There were not only substantial differences

between I.A.’s two accounts, given over a year and a half apart, but also substantial risks

permitting an inquiry into I.A.’s relationship with Hill. The District Court reasoned that

admission of this evidence “would certainly place a prejudicial stamp on [I.A.’s] general

character and reputation,” citing State v. Anderson, 211 Mont. 272, 286, 686 P.2d 193, 201

(1984) (internal quotations omitted), and that there was “an exceptionally high likelihood

of confusing the issues in the case against Twardoski, misleading the jury, and [creating] a

trial within a trial regarding I.A.’s abuse by Hill[.] This all but guarantees jury confusion.”

¶54 I would conclude the District Court did not abuse its discretion and affirm the

conviction. On this record, Twardoski’s rights were amply protected, and I.A. was entitled

to the protections of the Rape Shield Statute. Thus, even under de novo review, I would

affirm.

/S/ JIM RICE

29