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No. 01-079
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 7
STATE OF MONTANA,
Plaintiff and Respondent,
v.
CHESTER BAUER,
Defendant and Appellant.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Deer Lodge,
Honorable Ted L. Mizner, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Michelle Sievers and Wade J. Dahood, Knight, Dahood,
McLean & Everett, Anaconda, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; John Paulson,
Assistant Attorney General, Helena, Montana
Michael B. Grayson, County Attorney; Joan S. Borneman, Deputy
County Attorney, Anaconda, Montana
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Mark Murphy, Assistant Attorney General and Special Deputy
County Attorney, Helena, Montana
Submitted on Briefs: June 21, 2001
Decided: January 15, 2002
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 On appeal, Chester Bauer challenges the evidentiary basis of a jury conviction of incest
in the Third Judicial District Court, Deer Lodge County, Montana. We affirm.
¶2 We restate the issues on appeal as follows:
¶3 1. Did the District Court err by denying a motion for a directed verdict of acquittal on
the basis of insufficiency of evidence?
¶4 2. Did the District Court abuse its discretion by denying Bauer's motion for a mistrial
for the erroneous admission of "other crimes" evidence?
¶5 3. Did the District Court abuse its discretion by denying Bauer's request to admit the
state crime lab's DNA report as exculpatory evidence?
¶6 4. Did the District Court abuse its discretion by declining to give a jury instruction on
weak and less satisfactory evidence?
FACTUAL AND PROCEDURAL BACKGROUND
¶7 In 1983, Chester Bauer (Bauer) was sentenced to the Montana State Prison for
aggravated assault and sexual intercourse without consent. On September 22, 1997, both
convictions were vacated on the basis of DNA test results that excluded Bauer as the
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assailant and other "newly discovered evidence" of actual innocence. However, Bauer
remained incarcerated for another two years under sentences for convictions he gained
while in prison. In 1991, Bauer pleaded guilty to the charge of intimidating a prison
employee's spouse, and, in 1996, he was convicted of sexual intercourse without consent
with a 19-year-old female inmate at the Blaine County Jail, where Bauer had been
assigned for his protection after serving as a State's witness at the trials subsequent to the
1991 prison riot. Bauer was released on probation in November 1999, and took up
residence with his mother in Townsend.
¶8 Amanda Bauer (Amanda) is Bauer's daughter and was two years old when Bauer was
sent to prison in 1983. She did not see Bauer again until she visited the prison with her
grandmother in October 1999, three weeks prior to Bauer's release. Amanda is mildly
developmentally disabled and attended special education classes since grade school.
Amanda graduated from high school in May 1999. Both Amanda and her sister, Nicole,
suffer from Frederick's Ataxia. This progressively debilitating physical disorder and
scoliosis of the lower spine affect Amanda's coordination and balance, necessitating that
she often use a wheelchair. Amanda's speech and ability to write have also deteriorated,
and her life expectancy is greatly reduced. Due to Amanda's mental and physical
disabilities, she receives Social Security Insurance benefits, which enable her to live
independently.
¶9 Bauer arranged to visit his extended family for the 1999 Christmas holiday in
Anaconda, where his two sisters live with their families and his father was visiting. In
addition, Bauer's ex-wife, Amanda's mother, resides in Anaconda with her husband,
children and Amanda's younger sister, Nicole. According to Bauer's probationary travel
permit, he planned to stay in Anaconda with his sister, Janet Ricketts. Instead, Bauer spent
Christmas Eve with his 18-year-old daughter Amanda in her apartment.
¶10 According to Amanda's testimony, Bauer had non-consensual sex with Amanda two
times during the evening of December 24, 1999. Afterward, Bauer told Amanda that the
family would ostracize her and he would be returned to prison if she told anyone what had
happened. The next day, Amanda's mother noticed that Amanda was unusually withdrawn
during the holiday festivities, ignored her Christmas presents and appeared angry and
upset. Amanda told no one of the alleged incest during the subsequent weeks.
¶11 Bauer returned to Anaconda on January 21, 2000. He again stated on his travel permit
that he planned to stay with his sister. This time, however, Janet knew nothing of Bauer's
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visit. According to Amanda's testimony, Bauer arrived at her apartment in the late
afternoon with a case of beer, travel bag and television set. Amanda testified Bauer
touched her sexually, poured beer down her clothes and coerced her to drink alcohol and
take pills. In anticipation of Bauer's visit, Amanda arranged for a number of friends to
come by her apartment and check on her that evening. Bauer refused to let anyone in the
apartment and posted a note on the door stating that Amanda wanted no visitors. As an
excuse to get Bauer out of her apartment, Amanda asked him to buy her a cappuccino at a
convenience store located on the edge of town. Once alone, Amanda immediately
telephoned her mother, who directed her to call the police.
¶12 Two officers from the Anaconda-Deer Lodge Police Department arrived at the scene
before Bauer returned in his vehicle with the coffees. The officers testified that Amanda
was highly distraught and wanted them to make her father leave. Amanda said nothing
about any inappropriate touching at this time. The police discovered Bauer was on
probation and presumed correctly that he was prohibited from consuming alcohol as a
condition of release. Although Bauer denied drinking, the officers administered a field
sobriety test, which Bauer failed. One officer took Bauer to the station, where a breath test
showed a .07 alcohol level, which is below the presumptive level of impairment. The
police did not charge Bauer with driving under the influence and released him to his
mother, who accompanied Bauer back to Townsend that night.
¶13 Three days later, Bauer sent letters to Amanda and Amanda's mother in which Bauer
accused Amanda of drug abuse, threatened to sever all contact between Amanda and
Bauer's extended family, discussed suicide, and blamed Amanda for his decision to
withhold the birthday gifts he promised to Amanda and Nicole. Bauer wrote that he
learned compassion and caring during his 17 years in prison and urged Amanda's mother
to encourage Amanda to visit him in Townsend. Several days afterward, Amanda
disclosed the incest to her mother and to law enforcement authorities. The ensuing
investigation led to a charge against Bauer on April 19, 2000, on one count of incest under
§ 45-5-507(1), MCA. The information was later amended to include the offenses of
January 21, 2000, consisting of a second count of incest and one count of unlawful
transactions with children under § 45-5-623, MCA.
¶14 At the conclusion of a three-day trial, the jury convicted Chester Bauer of one count
of incest with Amanda for the 1999 Christmas Eve incident, and found him not guilty on
the two other counts. The District Court denied Bauer's motion for a directed verdict or, in
the alternative, a new trial. The court sentenced Bauer to life imprisonment, with an
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additional 20 years as a persistent felony offender, and declared Bauer ineligible for parole
due to his criminal history and predatory sexual behavior.
ISSUE 1
Did the District Court err by denying a motion for a directed verdict of acquittal on the
basis of insufficiency of evidence?
¶15 We review the sufficiency of evidence to support a jury verdict to determine whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.
State v. Merrick, 2000 MT 124, ¶ 7, 229 Mont. 472, ¶ 7, 2 P.3d 242, ¶ 7; State v. Olson
(1997), 286 Mont. 364, 371, 951 P.2d 571, 575-76. A directed verdict of acquittal is
appropriate only when there is no evidence to support a guilty verdict. State v. Bromgard
(1993), 261 Mont. 291, 293, 862 P.2d 1140, 1141. The credibility of witnesses and the
weight to be given to their testimony are determined by the trier of fact, and disputed
questions of fact and credibility will not be disturbed on appeal. Olson, 286 Mont. at 371,
951 P.2d at 576 (citing State v. Ahmed (1996), 278 Mont. 200, 212, 924 P.2d 679, 686). If
evidence conflicts, it is within the province of the trier of fact to determine which will
prevail. Olson, 286 Mont. at 371, 951 P.2d at 576. This Court has held repeatedly that a
conviction for a sex offense may be based entirely on the uncorroborated testimony of the
victim. Olson, 286 Mont. at 372, 951 P.2d at 576; State v. Gilpin (1988), 232 Mont. 56,
70, 756 P.2d 445, 453); State v. Maxwell (1982), 198 Mont. 498, 503, 647 P.2d 348, 351;
State v. Metcalf (1969), 153 Mont. 369, 378, 457 P.2d 453, 458. "Only in those rare cases
where the story of a witness is so inherently improbable or is so nullified by material self-
contradiction that no fair-minded person could believe it may we say no firm foundation
exists for the verdict based on it." Maxwell, 198 Mont. at 503, 647 P.2d at 351 (quoting
State v. Gaimos (1916), 53 Mont. 118, 126, 162 P. 596, 599).
¶16 Bauer argues that the evidence produced at trial was insufficient to support the jury's
verdict of guilty on one count of incest. Amanda's testimony served as the basis for
conviction and Bauer asserts Amanda's story was inherently incredible due to internal
contradictions. Specifically, Bauer claims a discrepancy in Amanda's testimony on direct
examination and cross-examination concerning the number of times Bauer had sexual
intercourse with her on December 24, 1999. Bauer also points out that Amanda testified
she left her apartment on Christmas Eve and sought out a friend who lived nearby, but that
the friend testified that she did not move to the apartment near Amanda until after the
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Christmas holidays. And finally, Bauer notes Amanda testified she called her mother on
the telephone on Christmas Eve, when she actually called her mother during the events of
January 21, 2000.
¶17 Contrary to Bauer's contentions, however, we note no inconsistency in the essential
elements of Amanda's pre-trial statements and her trial testimony. The trial transcript
reveals that the prosecution failed to ask Amanda during direct questioning about the
second rape on Christmas Eve, and her testimony on cross-examination regarding this
second violation remains consistent with her pre-trial statements. While Amanda may
have exhibited some confusion at trial about details involved in the two incidents of
December 24 and January 21, she testified very clearly that her father engaged in sexual
intercourse with her on December 24. Although Bauer testified that the sexual acts did not
occur, the jury determined that Amanda's version of the December 24 incident was more
credible, and its verdict reflects that determination.
¶18 To establish the essential elements of the offense of incest, the State was required to
prove that Bauer knowingly had sexual contact or sexual intercourse with a descendant.
Section 45-5-507(1), MCA. Bauer does not dispute that Amanda is his natural daughter,
and does not contend that Amanda failed to testify that Bauer had sexual contact with her.
We conclude the evidence presented was substantial and the District Court did not abuse
its discretion by denying Bauer's motion for a directed verdict.
ISSUE 2
Did the District Court abuse its discretion by denying Bauer's motion for a mistrial for the
erroneous admission of "other crimes" evidence?
¶19 The determination of whether evidence is relevant and admissible is left to the sound
discretion of the trial judge and will not be overturned on appeal absent a showing of
abuse of discretion. State v. Hansen, 1999 MT 253, ¶ 20, 296 Mont. 282, ¶ 20, 989 P.2d
338, ¶20; State v. Weeks (1994), 270 Mont. 63, 80, 891 P.2d 477, 487-88. Relevant
evidence may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice. Rule 403, M.R.Evid. Whether the probative value is outweighed by
the prejudicial effect is within the trial court's discretion. State v. Langford (1994), 267
Mont. 95, 103, 882 P.2d 490, 495. A district court abuses its discretion when it "acts
arbitrarily without conscientious judgment or exceeds the bounds of reason resulting in
substantial injustice." State v. Richardson, 2000 MT 72, ¶ 24, 299 Mont. 102, ¶ 24, 997
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P.2d 786, ¶ 24.
¶20 In response to Bauer's motion in limine, the District Court barred mention at trial by
the prosecution of Bauer's felony convictions in 1991 and 1996. However, the court also
ruled that the fact of Bauer's lengthy prior prison internment and his status as a probationer
when he visited Amanda in Anaconda were admissible as part of the transaction.
¶21 To comply with the court's ruling, the State redacted the portions of two travel permits
that listed Bauer's actual felony offenses. Bauer objected to the admission of the travel
permits after they had been shown to the jury at trial because, while the specific felony
convictions had been redacted on the forms, the defense realized the State failed to black-
out the dates that the felony sentences would expire. The court sustained the objection,
directed the State to redact the sentence expiration dates and offered to instruct the jury to
disregard any reference to Bauer's prior felony convictions on the travel permits. Defense
counsel agreed that a corrective instruction would only draw more attention to the prior
felonies and moved for a mistrial. The court denied the motion. On appeal, Bauer contends
the fact that he was a probationer who served time in prison is highly prejudicial
information that constitutes "other crimes" evidence that should only have come into
evidence after appropriate notice under the Just rules.
¶22 The State argues that the rules governing "other crimes" evidence do not apply, and
cites State v. Hayworth for the proposition that, "it is well established that evidence which
tends to explain circumstances surrounding the charged offense is relevant, probative and
competent." State v. Hayworth, 1998 MT 158, ¶ 32, 289 Mont. 433, ¶ 32, 964 P.2d 1, ¶ 32
(quoting State v. Wing (1994), 264 Mont. 215, 225, 870 P.2d 1368, 1374). The State cites
the transaction rule, which provides "where the declaration, act, or omission forms part of
a transaction which is itself the fact in dispute or evidence of that fact, such declaration,
act, or omission is evidence as part of the transaction." Section 26-1-103, MCA. Because
Bauer's history of imprisonment and his probationary status when he visited Amanda in
Anaconda are inextricably linked to the circumstances surrounding the crimes charged, the
State asserts the information is admissible. We agree.
¶23 In order for the jury to understand the context of the alleged incest, Amanda needed to
explain that she had not seen or known her father because he had been incarcerated since
she was a small child. Bauer's probationary status and his 17-year term in prison first came
to the court's attention through the letters Bauer sent to Amanda and her mother days after
the January 21 incident. Both letters were admitted into evidence without objection. Bauer
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also used his prison sentence to silence Amanda. According to Amanda's testimony, Bauer
told her he would be returned to prison and either die or commit suicide there if she spoke
about the incest. The Anaconda-Deer Lodge police officer testified that he was aware that
Bauer likely had violated a condition of his probation when the officers detained him for
alcohol consumption on January 21. Bauer and his probation officer both explained to the
court that Bauer was required to apply for permission to travel as another condition of
probation. The travel permits were integral to the State's case and were presented to show
Bauer falsified the forms to conceal his intention to stay with his daughter when visiting
Anaconda. We conclude the District Court acted conscientiously and within the bounds of
reason in allowing the facts of Bauer's prison internment and probationary status into
evidence.
¶24 We next examine the specific error of the unredacted reference to the expiration date
of Bauer's felony sentences using the two-step analysis we adopted in Van Kirk to
determine whether the error prejudiced Bauer's right to a fair trial and therefore is
reversible. State v. Van Kirk, 2001 MT 198, ¶¶ 37-47, 306 Mont. 215, ¶¶ 37-47, 32 P.3d
735, ¶¶ 37-47. The first step is to determine whether the error is a structural error or a trial
error. Van Kirk, ¶ 37. Structural error affects certain substantial rights of the defendant and
is typically of constitutional dimensions, precedes the trial, and undermines the fairness of
the entire proceeding. Van Kirk, ¶ 38. Structural errors are automatically reversible. Van
Kirk, ¶ 39.
¶25 Trial errors typically occur during the presentation of the case to the court and are
subject to review under the harmless error statute, § 46-20-701, MCA. Van Kirk, ¶ 40.
Section 46-20-701(1), MCA, provides that "[a] cause may not be reversed by reason of
any error committed by the trial court against the convicted person unless the record
shows that the error was prejudicial." The State must prove that the trial error did not
prejudice a substantial right of the defendant and that the error is harmless beyond a
reasonable doubt. Section 46-20-701(2), MCA; Van Kirk, ¶ 42. Under the "cumulative
evidence" test that we adopted in Van Kirk, we determine whether there is a reasonable
probability that the erroneously admitted evidence might have contributed to the
conviction. Van Kirk, ¶ 43. This test looks to whether the fact finder was presented with
admissible evidence that proved the same facts as the tainted evidence. Van Kirk, ¶ 44. In
addition, the quality of the tainted evidence, in comparison with the quality of the
admissible evidence, must be such that there is no reasonable possibility that it might have
contributed to the defendant's conviction. Van Kirk, ¶ 47.
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¶26 The erroneous presentation to the jury of the unredacted dates on the travel permits
indicating the expiration of Bauer's felony sentences constitutes trial error. While the jury
received no information on Bauer's specific prior crimes, the unredacted dates signaled
that felony convictions underlaid the requirement that Bauer obtain written permission
from his probation officer prior to travel. As noted above, references to Bauer's
probationary status and prior imprisonment arose during the testimony of Bauer, his
probation officer, Amanda and an Anaconda police officer. The letters Bauer sent to
Amanda and her mother, which were admitted as exhibits, mention discussions with his
probation officer and Bauer's 17-year incarceration. The State maintains the admissible
evidence presupposes the existence of a felony conviction in Bauer's past, while refraining
from mention of the specific prior crimes, and presents the same inference to the jury as
the tainted evidence. We conclude the introduction of inadmissible unredacted dates did
not contribute to Bauer's conviction, was harmless beyond a reasonable doubt and did not
prejudice Bauer's right to a fair trial. The District Court properly exercised its discretion
by denying Bauer's motion for a mistrial.
ISSUE 3
Did the District Court abuse its discretion in denying Bauer's request to admit the state
crime lab's DNA report as exculpatory evidence?
¶27 In reviewing a district court's decisions regarding the admissibility of evidence
relating to the extrinsic sexual conduct of victims of sexual crimes, we determine whether
the district court abused its discretion. State v. Detonancour, 2001 MT 213, ¶ 19, 306
Mont. 389, ¶ 19, 34 P.3d 487, ¶ 19 (citing State ex. rel. Mazurek v. Dist. Court of Fourth
Jud. Dist. (1996), 227 Mont. 349, 353, 922 P.2d 474, 477).
¶28 Four months after the incest incidents, investigators recovered the blanket Amanda
believed covered the day bed when Bauer engaged in sexual intercourse with her. The
blanket was submitted to the state crime lab for DNA analysis and some stains were tested
for the presence of seminal fluid. Although semen was found, it did not match Bauer's
DNA profile. The District Court excluded the report under the rape shield statute, but
allowed the defense to make a limited inquiry to establish that no physical evidence linked
Bauer to the scene.
¶29 At the trial, Lori E. Hutchinson from the state crime lab testified that she did not find
Bauer's semen on the blanket. Later, the defense elicited a statement from Detective Dan
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Blume of the Anaconda-Deer Lodge Police Department that the report showed the
presence of someone else's seminal fluid on the blanket. With the essential findings of the
DNA report inadvertently admitted into evidence at trial, Bauer claims the court abused its
discretion in excluding a report that contradicts Amanda's testimony.
¶30 Montana's rape shield statute, enacted in 1973, "reflects a compelling interest in favor
of preserving the integrity of the trial and preventing it from becoming a trial of the
victim." State v. Johnson, 1998 MT 107, ¶ 19, 288 Mont. 513, ¶19, 958 P.2d 1182, ¶ 19
(quoting State v. Anderson (1984), 211 Mont. 272, 283, 686 P.2d 193, 199). The statute
provides in relevant part:
No evidence concerning the sexual conduct of the victim is admissible 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 which is at issue in the prosecution.
Section 45-5-511(2), MCA. The Compiler's Comments describe the two exceptions as: 1)
evidence of the victim's prior sexual contact with the defendant and, 2) evidence that
refutes an inference derived from physical evidence of the crime offered by the victim.
¶31 Since all sexual contact between Bauer and his daughter is criminal and the State
offered no physical evidence to refute at trial, neither exception to the rape shield statute
applies in this case. Moreover, even if the DNA test had been completed in a more timely
fashion, the results bear no relevance to the issue of whether Bauer committed incest.
Detective Blume's summary of the findings of the DNA report notwithstanding, admission
of the report into evidence would violate § 45-5-511(2), MCA, and would serve only to
confuse or divert the jury. We hold that the District Court did not abuse its discretion in
excluding the report.
ISSUE 4
Did the District Court abuse its discretion by declining to give a jury instruction on weak
and less satisfactory evidence?
¶32 Bauer asserts Amanda's testimony should be viewed with distrust for two reasons.
First, he claims the State chose not to offer Amanda's torn pajamas to corroborate
Amanda's testimony that her father ripped her nightshirt when he forced her to have sexual
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intercourse with him. The State responds on appeal that Bauer never demonstrated the
availability of the torn pajamas as evidence. Second, Bauer asserts the testimony of
Amanda's psychological counselor regarding the impact of the incestuous rape on
Amanda's emotional and psychic well-being constitutes stronger and more satisfactory
evidence of the crime than Amanda's own testimony. The State replies that the prosecution
accepted a pre-trial agreement to forego presentation of evidence of rape-trauma syndrome
in exchange for denying the defense access to Amanda's mental health records.
¶33 Bauer's proposed jury instruction is based on § 26-1-303(5), MCA, which provides:
If weaker or less satisfactory evidence is offered and it appears that it is within the
power of the party to offer stronger and more satisfactory evidence, the evidence
offered should be viewed with distrust.
After a discussion involving both counsel, the District Court declined to give the requested
instruction, but concluded the defense could make an argument regarding weaker or less
satisfactory evidence in its closing statement to the jury. The court recognized that the
instruction amounts to a comment on Amanda's credibility and the weight to be given to
her testimony. We agree with the District Court that such comments are better reserved for
closing arguments and hold the court properly exercised its discretion in rejecting the
proposed instruction.
CONCLUSION
¶34 Bauer's conviction of the offense of incest is supported by sufficient evidence, and
each of the challenged evidentiary and procedural rulings of the District Court falls within
the court's discretionary authority. We conclude the District Court properly denied Bauer's
motion for a directed verdict and did not abuse its discretion.
¶35Affirmed.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
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/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
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