State v. Sage

July 20 2010

DA 09-0252

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 156

STATE OF MONTANA,

Plaintiff and Appellee,

v.

DONALD RAY SAGE,

Defendant and Appellant.

APPEAL FROM: District Court of the Third Judicial District,
In and For the County of Deer Lodge, Cause No. DC 08-01
Honorable Ray J. Dayton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Nancy G. Schwartz, NG Schwartz Law, PLLC, Billings, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General, Jonathan M. Krauss,
Assistant Attorney General, Helena, Montana

Joan S. Borneman, Deer Lodge County Attorney, Anaconda, Montana

Submitted on Briefs: June 9, 2010

Decided: July 20, 2010

Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Donald Ray Sage (Sage) appeals his conviction for the felony offense of sexual

intercourse without consent (SIWC) in the Third Judicial District Court. We reverse

Sage’s conviction and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In the fall of 2007, Mary Graham (Mary) routinely spent time at Sage’s house in

Anaconda, Montana. Mary lived with her boyfriend Jeremiah Bell (Bell) in Anaconda in

a camper trailer with no heat or running water. Sage and his then-girlfriend Marian Sage

(Marian)1 allowed Mary to stay at the house on occasion in order to shower and use

Sage’s computer. Mary had originally been introduced to Sage by her godmother Martha

Koffler (Koffler). Sage and Bell worked together delivering newspapers. Sage and

Marian allowed other individuals to regularly use their house as a place to hang out and

use Sage’s computers. Sage and Marian provided food to the individuals who hung out at

the house, and allowed them to drink beer and smoke marijuana there as well.

¶3 Mary was a regular at Sage’s house for over a month. In the course of spending

time there, Mary testified that she came to regard Sage as a pretty good friend, and

developed trust in both Sage and Marian. According to Mary’s testimony, at some point

Sage began paying Mary compliments and “saying things” to her. Sage told Mary he was

a photographer who took “exotic” photographs. Sage showed Mary a number of these

photographs. The photographs depicted women in various lurid poses, and women in

some of the pictures were naked, or skimpily dressed. Some of the photographs also

1
Marian and Sage were married prior to trial.

2
showed Sage himself, posing naked, and Sage’s penis showing a “69” tattoo in his pelvic

area. Two of the photographs which Sage showed to Mary depicted his penis ejaculating.

¶4 Mary stated that Sage asked her what she thought about the photographs and made

comments indicating that he wanted to take pictures of her. Sage suggested that he could

take pictures of Mary for her boyfriend Bell as Christmas presents. Mary testified that

she was disgusted by the photographs and considered them pornographic. Mary thought

it strange that Sage had showed her these photographs, but decided to leave the topic

alone. Mary testified that she would not stop going to Sage’s house solely on account of

the pictures, and also testified that she had nowhere else to go. Sage did end up taking

some photographs of Mary although it appears that Mary was fully clothed in all of them.

Mary also took some pictures of herself using Sage’s camera.

¶5 Mary testified that Sage had asked her on many occasions if she wanted him to

shave her pubic area, but she always told Sage “no.” After she refused these advances,

Mary thought that the whole issue was a “done deal,” especially given the fact that she

hung out at Sage’s house with her boyfriend Bell and others. Despite Sage’s advances

and her refusals, Mary stated she was still comfortable at Sage’s house and felt as though

she could trust him.

¶6 On December 11, 2007, Mary had been at Sage’s house using the computer

checking her “My Space” page and talking to her friends. Marian went on an errand,

leaving Sage and Mary alone in the house for the first time. Mary testified that Sage

came into the computer room dressed only in his boxer shorts. Mary testified that Sage’s

boxers were pulled down and that his penis was exposed to her. Mary “freaked out” and

3
tried to leave, but Sage grabbed her arm, causing Mary a significant amount of pain due

to nerve damage and scars she suffered after contracting meningitis. Mary testified that

she ended up on the floor, and that Sage held her arms and told her to relax, enjoy it, and

that he just wanted to give her pleasure. Mary resisted by kicking, crying, screaming and

trying to get away, and testified that she repeatedly told him “no.” Sage then allegedly

ripped off her pants and underwear, got between her legs, and continued to hold her arms

above her head. Eventually, Mary gave up, laid on the floor, and attempted to “tune out”

what Sage was doing to her. At trial, Mary testified that she was accustomed to “tuning

out” when confronted with traumatic experiences in her life.

¶7 Mary testified that Sage then pulled out an electric razor and used it as a vibrator

on Mary, telling her again that he only wanted to give her pleasure. Sage allegedly then

asked Mary again if she wanted him to shave her, and ultimately penetrated her with his

penis. Sage allegedly threatened Mary, stating that if she told anybody or mentioned it,

he would either say that she begged him for it and “wanted it,” or he would deny the

incident outright.

¶8 Mary testified that she did not initially want to report the alleged rape, and wanted

to put it out of her mind and go on with her life. She threw away the clothes she had been

wearing, including the ripped pants. However, a week after the rape she told Koffler

about the incident and Koffler made her report it to the police.

¶9 On December 18, 2007, Koffler took Mary to the Anaconda police station to

report that she had been raped by Sage. Mary was interviewed by Detective Steven

Barclay of the Anaconda-Deer Lodge Police Department in Anaconda. Mary told Det.

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Barclay the version of events noted above. Based upon information provided by Mary,

the officers obtained a search warrant for Sage’s house. Mary informed the officers that

there was a “pot pipe” in Sage’s house, and described its location. During the search,

officers seized two razors, Sage’s computers, a digital camera, photographs, and the pot

pipe in the location where Mary said it would be.

¶10 Sage was arrested for misdemeanor possession of drug paraphernalia. Sage was

interviewed by law enforcement and gave a voluntary statement to the police while in

custody. Sage told the officers that he did not rape Mary. At trial, Sage claimed that

when he and Mary were alone in the house, Mary approached him after taking a shower

with towels wrapped around her head and middle, and asked him to shave her pubic area.

Sage stated that he thought the request was weird, but nonetheless agreed to do it. Sage

denied holding Mary down or penetrating her in any manner.

¶11 Sage was subsequently charged with misdemeanor possession of drug

paraphernalia and SIWC. Prior to trial, Sage filed a motion in limine seeking to exclude

any reference to other crimes, wrongs, or acts which he may have committed. The

motion sought to exclude the photographs he had shown to Mary of the various women,

Sage himself, and his penis. Sage did not seek to exclude the photographs of Mary,

because the digital stamp on the photos of Mary indicated they had been taken after the

date of the alleged rape, thus demonstrating that Mary had returned to Sage’s house after

she claimed she was raped.

¶12 Generally speaking, M. R. Evid. 404(b) prohibits the admission of evidence of

other crimes, wrongs, or acts in order to show that the defendant acted in conformity

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therewith, but does allow the admission of such evidence for other purposes, such as to

prove motive or intent. State v. Marshall, 2007 MT 198, ¶ 15, 338 Mont. 395, 165 P.3d

1129. If the State intends to introduce evidence of other crimes, wrongs, or acts, it must

provide written notice pursuant to the Modified Just Rule described by this Court in State

v. Matt, 249 Mont. 136, 814 P.2d 52 (1991). The “transaction rule,” codified at

§ 26-1-103, MCA,2 permits the introduction of evidence of prior bad acts which are

inextricably linked to the charged offense, notwithstanding the criteria and requirements

of the Modified Just Rule. Marshall, ¶ 16. The State in this case did not comply with the

Modified Just Rule, but argued that the photographs were inextricably linked to the

sexual intercourse without consent charge, and were thus admissible under the

“transaction rule.”

¶13 The District Court agreed with the State and allowed the admission of the disputed

photographs under the transaction rule. In its ruling from the bench at the final pretrial

conference, the District Court expressed some discomfort with the idea that the

photographs were admissible as evidence of Sage “grooming” Mary in preparation to

commit the offense. 3 The District Court observed that grooming evidence did not fit well

with the forcible rape situation as alleged by the State, and also that Mary was of adult

age, while “grooming” usually involves an underage victim. However, noting that the

2
The transaction rule reads as follows: “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.
3
“ ‘Grooming’ is ‘the process of cultivating trust with a victim and gradually introducing sexual
behaviors until reaching the point’ where it is possible to perpetrate a sex crime against the
victim.” Marshall, ¶ 19 (quoting United States v. Johnson, 132 F.3d 1279, 1283 n. 2 (9th Cir.
1997)).

6
transaction rule would allow the admission of evidence if it forms part of the disputed

transaction, the District Court determined that if the photographs were actually a part of

the conduct, communications, and relationship activity between Sage and Mary, then they

would qualify as a part of the transaction.

¶14 Sage’s trial was held on October 6-8, 2008. On the morning of the first day of

trial, Sage entered a guilty plea to the misdemeanor charge of possession of drug

paraphernalia. The District Court received his guilty plea in chambers, outside the

presence of the jury. In light of his change of plea, Sage argued that all the evidence

related to this charge was no longer relevant and therefore inadmissible under

M. R. Evid. 404(b). The State argued that it should be able to present evidence that Mary

was a part of a group that hung out at Sage’s house and regularly drank and smoked

marijuana. The State contended that this group was “almost like a subculture,” and that it

was important for the jury to understand how Mary fit into this group and came to trust

Sage prior to the alleged rape. The District Court, however, ruled that such evidence

would not be admitted under the transaction rule in light of the fact that the possession

charge was no longer at issue and the drug-related other acts did not relate to the rape

allegations.

¶15 The State filed a motion for the District Court to reconsider this ruling. The State

argued that evidence of drug use and drug paraphernalia was contemporaneous to the

sexual intercourse without consent charge, and that the prohibition of such evidence

would deprive the State of its right to a fair trial. The State contended that the legs would

be “cut out from under the victim’s case” without this evidence. In response to the

7
State’s motion, the District Court reversed itself and ultimately allowed the drug-related

evidence to come in. Noting the State’s assertion that Mary witnessed Sage and the

others at the house drinking beer and smoking marijuana the morning of the rape, and

that she told officers where a marijuana pipe would be found in Sage’s house, the court

concluded this evidence would corroborate Mary’s testimony. Accordingly, the District

Court concluded that this evidence would be admissible under the transaction rule. As

stated by the District Court, under “the State’s theory of the case insofar as the County

Attorney has described the situation is probably explanative of a question that[] may be in

a juror’s mind; ‘what in the heck is this 50-some year old guy doing with these 19 year

old kids and what not’ and the Jury is entitled to context. That’s part of the transaction

rule.” However, after a brief recess, the State corrected itself, and told the court that

Mary had not seen Sage and others smoking marijuana and drinking beer on the morning

of the alleged rape because she was not at Sage’s house. The District Court told the State

that this new revelation made the court “really unhappy,” but it nonetheless declined to

reverse its decision to allow the evidence to be admitted.

¶16 During trial, the jury heard from the officers involved in the investigation, Mary,

Marian, Sage, and other individuals. The issue of drug use at Sage’s house was referred

to many times. Furthermore, the State attempted unsuccessfully to have the pot pipe

seized at the house admitted into evidence. The disputed photographs were admitted into

evidence as well. The District Court gave limiting instructions at Sage’s request

regarding the evidence of drug use and the disputed photographs. The District Court also

gave the jury a lesser included offense instruction for sexual assault.

8
¶17 The jury ultimately convicted Sage of SIWC. Sage was sentenced to 30 years in

prison on the SIWC charge, and 6 months for criminal possession of drug paraphernalia.

Sage was designated a Tier III sex offender. He was required to serve at least 10 years in

prison, and would not be eligible for parole until he completed Phase I and II of the sex

offender program at the Montana State Prison.

¶18 Sage now timely appeals his conviction for sexual intercourse without consent.

We state the issues on appeal as follows:

¶19 Issue One: Did the District Court abuse its discretion when it admitted evidence

of drug use at Sage’s house?

¶20 Issue Two: Did the District Court abuse its discretion when it admitted the

disputed photographs into evidence?

STANDARD OF REVIEW

¶21 A trial court has broad discretion when it determines the relevance and

admissibility of evidence. State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201

P.3d 811. Generally speaking, we review a district court’s ruling on evidentiary matters

for an abuse of discretion. Derbyshire, ¶ 19. An abuse of discretion can be found if the

district court acts arbitrarily without the employment of conscientious judgment, or

exceeds the bounds of reason resulting in substantial injustice. Derbyshire, ¶ 19 (citing

State v. McOmber, 2007 MT 340, ¶ 10, 340 Mont. 262, 173 P.3d 690). However, a

district court is bound by the Montana Rules of Evidence as well as applicable statutes.

“Thus, to the extent the court’s ruling is based on an interpretation of an evidentiary rule

or statute, our review is de novo.” Derbyshire, ¶ 19 (citing State v. Mizenko, 2006 MT

9
11, ¶ 8, 330 Mont. 299, 127 P.3d 458). Under these conditions, we review the district

court’s conclusions de novo to determine whether the court correctly interpreted the law.

Derbyshire, ¶ 19 (citing State v. Incashola, 1998 MT 184, ¶ 9, 289 Mont. 399, 961 P.2d

745; State v. Weaver, 2008 MT 86, ¶ 10, 342 Mont. 196, 179 P.3d 534).

¶22 Issue One: Did the District Court abuse its discretion when it admitted evidence
of drug use at Sage’s house?

¶23 On appeal, the State concedes that the District Court erroneously admitted

evidence of marijuana use and possession of drug paraphernalia under the transaction

rule. The State admits that the marijuana evidence was only “tangentially related to

Sage’s commission of sexual intercourse without consent.” The State argues, however,

this error was harmless relying on State v. Insua, 2004 MT 14, 319 Mont. 254, 84 P.3d

11.

¶24 In Insua, defendant Insua was charged with criminal production or manufacture of

dangerous drugs, sexual intercourse without consent upon a minor female, and three other

instances of sexual assault. The drug and sex crimes charges were ultimately severed.

Insua, ¶ 6. At trial on the sex crimes, one of the victims testified that she had seen Insua

smoking marijuana and the presence of pipes in an outbuilding referred to as “the pantry”

where Insua spent a lot of “alone time” and where one of the sexual assaults allegedly

occurred. Insua, ¶ 9. Testimony at trial indicated that Insua kept candy, dolls, children’s

toys and a television in the pantry.

¶25 After his conviction, Insua argued his conviction should be reversed and that

evidence of his marijuana use was “bad character” evidence which should prohibited

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under M.R. Evid. 404(b), since the State failed to comply with the requirements of the

Modified Just Rule. Insua, ¶ 39. The State argued that the evidence was admissible

under the transaction rule, and that it was explanatory of the circumstances surrounding

the alleged sexual offenses. Insua, ¶ 41. We held that the district court abused its

discretion in admitting the evidence in light of its earlier ruling severing the charges.

Insua, ¶ 43. However, the Court ultimately concluded that the admission of the evidence

constituted trial error which was not prejudicial to Insua. Insua, ¶ 44. Because the

tainted evidence did not go to prove an element of sexual intercourse without consent or

sexual assault, the State was required to prove that there was “no reasonable possibility”

that the tainted evidence contributed to Insua’s conviction. Insua, ¶ 45. We held the

State met its burden in that case for several reasons. First, the drug use was mentioned by

only one of the State’s witnesses in 2 pages of a trial transcript totaling over 530 pages

long. Insua, ¶ 46. Second, we noted the prosecutor made only a very brief reference to

marijuana use during closing argument, and then only in conjunction with other evidence

that demonstrated Insua kept dolls, candy, TV, tequila, and other items in the pantry.

Furthermore, the prosecutor did not imply that the conviction for a sex crime was

warranted because of marijuana evidence. Insua, ¶ 47.

¶26 Sage argues that Insua is distinguishable and that the State has failed to prove the

error in this case was harmless. Sage notes that the prosecutor here referred to marijuana

use in her opening statement. Further, the lead investigating officer testified at trial that

the application for the search warrant in this case was based in part on information related

to marijuana use at the house. The State also tried to have the pot pipe seized at the

11
house admitted into evidence, thus drawing the jury’s attention to the fact of illegal drug

use. Furthermore, the State elicited testimony about marijuana use from Sage himself

during cross-examination. Sage contends that since there was no question that Mary and

Sage had not smoked marijuana either before or after the alleged rape, the repeated

references to marijuana use by the State were gratuitous and prejudicial.

¶27 The parties agree that the complained error in this case is trial error, as opposed to

structural error. Accordingly, harmless error analysis requires this Court to determine

whether the tainted evidence was admitted to prove an element of the offense.

Derbyshire, ¶ 47. “[I]f the tainted evidence was not admitted to prove an element of the

offense, then the admission of the evidence will be deemed harmless only if the State

demonstrates that the quality of the tainted evidence was such that there was no

reasonable possibility it might have contributed to the conviction.” Derbyshire, ¶ 47.

Here again, the parties agree that the evidence of marijuana use was not used to prove an

element of the offense. Thus, the question is whether the State can demonstrate there is

no reasonable possibility that the tainted evidence might have contributed to Sage’s

conviction.

¶28 As noted by Sage, the State’s harmless error argument on appeal is diametrically

opposed to the argument it presented before the District Court. In arguing for the

admission of the marijuana evidence in its motion for reconsideration, the State

complained that the exclusion of such evidence would “cut the legs out” from under the

State’s case. Now the State argues just the opposite, claiming that there was no

reasonable possibility that the tainted evidence might have contributed to Sage’s

12
conviction. This argument is disingenuous at best given the State’s position before the

District Court.

¶29 In any event, we conclude the State has failed to meet its burden and prove there is

“no reasonable possibility” that the tainted evidence might have contributed to Sage’s

conviction. This Court has recognized in previous cases the prejudicial nature of

evidence concerning drug use. See State v. Ingraham, 1998 MT 156, ¶ 47, 290 Mont. 18,

966 P.2d 103; State v. Beachman, 189 Mont. 400, 616 P.2d 337 (1980). In some cases,

of course, evidence of drug use is inextricably linked to the allegations in support of the

charged offense, and thus the State has the right to bring such evidence to the jury. See

State v. Buck, 2006 MT 81, ¶ 79, 331 Mont. 517, 134 P.3d 53. However, the State

concedes this is not the state of affairs in the case sub judice. Moreover, given the

numerous occasions throughout trial where drug use was mentioned, this case is

distinguishable from Insua where the references to drug use by the defendant were

relatively brief and minor.

¶30 Furthermore, when evaluating the impact of tainted evidence it is “the quality of

the tainted evidence (more specifically, the qualitative impact the tainted evidence might

have had on the fact-finder), not the quantity of the admissible evidence, [which] is the

proper focus when determining whether trial error was harmless. To that end, the State

must show that, qualitatively, there is no reasonable possibility the tainted evidence might

have contributed to the defendant’s conviction.” Derbyshire, ¶ 54 (citing Van Kirk,

¶¶ 34-36, 43-44, 46). It is patent in this case that the State wanted evidence of drug use at

Sage’s house to be firmly in the mind of the jury. We agree with Sage that this evidence

13
likely painted him as either a person who gave “pot parties” at his house, or was possibly

a drug dealer. At any rate, we simply cannot conclude that the State has satisfied its

burden to show that there was “no reasonable possibility” that evidence of drugs

contributed to Sage’s conviction. Thus, we conclude that the admission of this evidence

was not harmless error.

¶31 Issue Two: Did the District Court abuse its discretion when it admitted the
disputed photographs into evidence?

¶32 Sage argues that the District Court abused its discretion when it admitted the

photographs of the other women, himself, and the depictions of his penis under the

transaction rule. Sage contends that the disputed photographs were not “inextricably

linked” to the charged offense and were highly prejudicial. Sage notes that the State told

the jury the photographs would “make a sailor blush.” Sage argues that we recently

noted in State v. Guill, 2010 MT 69, 355 Mont. 490, 228 P.3d 1152, that the transaction

rule “should not be permitted to admit propensity evidence that would otherwise be

excluded by Rule 404(b).” Guill, ¶ 26 (citing State v. Berosik, 2009 MT 260, ¶ 46, 352

Mont. 16, 214 P.3d 776).

¶33 The State contends the disputed photographs were properly admitted under the

transaction rule. The State notes that in order to convict Sage of SIWC it was required to

prove that: (1) Sage had sexual intercourse with Mary; (2) it was without Mary’s

consent; and (3) Sage acted knowingly. See § 45-5-503(1), MCA. Further, Sage

requested and received a lesser included offense instruction for sexual assault. In order to

prove sexual assault, the State was required to show that: (1) Sage subjected Mary to

14
sexual contact; (2) without Mary’s consent; and (3) Sage acted knowingly. See

§ 45-5-502(1), MCA. Sexual contact in this context includes “the touching of the sexual

or other intimate parts of the person of another, directly or through clothing, in order to

knowingly or purposely . . . cause bodily injury to or humiliate, harass, or degrade

another . . . [or] arouse or gratify the sexual response or desire of either party.” Section

45-2-101(67), MCA. Accordingly, the State contends that Sage himself broadened the

scope of the transaction from a forcible rape, to include assertions that he shaved Mary’s

pubic area. Thus, the State argues that the photographs demonstrate the nature of Sage’s

sexual advances and interest in Mary, and show that his contact with Mary was done for

purposeful or knowing arousal or sexual gratification.

¶34 Furthermore, although the State notes the District Court’s discomfort with

admitting the photographs as evidence of “grooming” behavior, the State argues that

nothing in this Court’s case law should be construed to limit grooming evidence to only

those cases involving a minor. The State contends the evidence shows how Sage

gradually introduced sexual elements into his relationship with Mary after he gained her

trust, by complimenting her, showing her the photographs, asking her to pose for him,

and telling her that he liked his women “bald.” The State argues that the photographs

were properly admitted under the transaction rule.

¶35 Alternatively, the State argues that if the admission of the photographs is found by

the Court to be in error, their admission was harmless. In this connection, the State notes

that Sage challenges only the admission of the photographs themselves, but not Mary’s

direct testimony that Sage showed her the pictures. The State contends, therefore, that

15
the jury was presented with admissible evidence which proved the same facts as the

allegedly “tainted” evidence. Accordingly, the State argues that there was no reasonable

possibility that the photographs themselves might have contributed to Sage’s conviction.

Finally, the State notes that the District Court gave a cautionary instruction when it

admitted the photographs, and contends this instruction was sufficient to cure any

prejudice to Sage.

¶36 This case presents the Court with another opportunity to clarify the scope and

application of the transaction rule. We note that our recent caselaw in this area has

emphasized the fact that the transaction rule should not be used to admit evidence of

other crimes, wrongs or acts in violation of M. R. Evid. 404(b) in order to prove the

character of a defendant and show that he acted in conformity with that character in

relation to the currently charged offense, when the State fails to comply with the

requirements of the Modified Just Rule. Berosik, ¶ 46; Guill, ¶ 26. While this Court

recognizes “the legitimacy of admitting properly limited evidence that is ‘intrinsic to’ or

‘inextricably intertwined with’ a charged crime,” Guill, ¶ 28 (citing authorities), courts

must nonetheless exercise great caution when handling potentially inflammatory

propensity or character evidence.

[W]e explained in State v. Croteau, 248 Mont. 403, 407, 812 P.2d 1251,
1253 (1991), and again in State v. Ray, 267 Mont. 128, 133-34, 882 P.2d
1013, 1016 (1994), that evidence of other crimes, wrongs, or acts must, as a
general rule, be excluded because “prior acts or crimes are highly
prejudicial to the defendant, and usually irrelevant for purposes of the
charged crime.” Evidence of a defendant’s prior acts or uncharged
misconduct creates the risk that the jury will penalize him simply for his
past bad character, Croteau, 248 Mont. at 407-08, 812 P.2d at 1253; Ray,
267 Mont. at 134, 882 P.2d at 1016, or prejudge him and deny him a fair

16
 opportunity to defend against the particular crime charged, State v. Gowan,
2000 MT 277, ¶ 19, 302 Mont. 127, 13 P.3d 376.

Derbyshire, ¶ 51.

¶37 Similarly, in Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644 (1997), the

United States Supreme Court also noted the dangers of such “propensity evidence” in the

following terms:

“Courts that follow the common-law tradition almost unanimously
have come to disallow resort by the prosecution to any kind of evidence of
a defendant’s evil character to establish a probability of his guilt. Not that
the law invests the defendant with a presumption of good character, Greer
v. United States, 245 U.S. 559, 62 L. Ed. 469, 38 S. Ct. 209, but it simply
closes the whole matter of character, disposition and reputation on the
prosecution’s case-in-chief. The state may not show defendant’s prior
trouble with the law, specific criminal acts, or ill name among his
neighbors, even though such facts might logically be persuasive that he is
by propensity a probable perpetrator of the crime. The inquiry is not
rejected because character is irrelevant; on the contrary, it is said to weigh
too much with the jury and to so overpersuade them as to prejudge one with
a bad general record and deny him a fair opportunity to defend against a
particular charge. The overriding policy of excluding such evidence,
despite its admitted probative value, is the practical experience that its
disallowance tends to prevent confusion of issues, unfair surprise and
undue prejudice.”

Old Chief, 519 U.S. at 181, 117 S. Ct. at 650-51 (quoting Michelson v. United States, 335

U.S. 469, 475-76, 69 S. Ct. 213 (1948) (footnotes omitted)).

¶38 On the other hand, we have recognized the importance of admitting evidence

under the transaction rule in order to ensure that the jury hears the applicable evidence

“so that it may evaluate the evidence in the context in which the alleged criminal act

occurred.” Berosik, ¶ 45 (citing Derbyshire, ¶ 29). In Old Chief, the United States

Supreme Court recognized the State’s important interest in presenting its case in full

17
narrative richness, and satisfying a jury’s natural tendency to want to hear the full story of

the alleged offense. Old Chief, 519 U.S. at 188-89, 117 S. Ct. at 654. In this connection,

the Supreme Court noted that the State’s ability to fully present its case is important to its

overall credibility with the jury, and reassures the jury that the State is not withholding

evidence necessary to decide the case. Old Chief, 519 U.S. at 188 n. 9, 117 S. Ct. at 654

n. 9.

¶39 With these considerations in mind, we now turn to the disputed evidence. The

District Court premised its decision to admit the disputed photographs primarily on the

grounds that the jury needed the full context in order to understand and pass judgment on

whether Sage committed the offense of SIWC. The District Court held the evidence was

admissible under the transaction rule because it “helps explain” the charged conduct.

However, we conclude that because the disputed photographs were not “intrinsic to” or

“inextricably intertwined” with the SIWC or sexual assault charges, the fact that these

photographs might “help explain” the charged conduct is insufficient to bring them under

the ambit of the transaction rule.

¶40 The allegations in support of the SIWC charge were that Sage forcibly raped Mary

against her will. The disputed photographs underscore Sage’s sexual interest in women

in general and even Mary herself. The photographs of Sage’s penis also speak to a

prurient interest in pornography. Thus, from a certain perspective, they could certainly

provide context for the circumstances under which the offense occurred, and fairly lead to

the conclusion that Sage was attempting to get Mary to engage in some sort of sexual

activity with him. However, it is quite another thing to conclude that such evidence is

18
inextricably intertwined with the allegations that Sage forcibly raped Mary, or committed

a sexual assault, simply because it provides some context for the charged conduct.

¶41 Here, the photographs are not evidence of any of the facts in dispute and do not

explain how Sage knowingly had sexual intercourse with Mary without her consent, or

that he knowingly committed a sexual assault. Evidence of these disputed facts came

from the testimony of Mary herself, or other testimony elicited at trial. Thus, we hold

that the District Court erroneously admitted the disputed photographs under the

transaction rule.4

¶42 Finally, we cannot conclude that the admission of the photographs was harmless

error. These photographs are shocking, disgusting, and highly offensive; therefore the

State cannot establish that there was no reasonable possibility their admission might have

contributed to Sage’s conviction. Indeed, the State characterized the photographs to the

jury as sufficient to “make a sailor blush,” thus emphasizing to the jury their prejudicial

character. Under these circumstances, it is not possible to conclude that the cautionary

instruction given by the District Court was sufficient to mitigate the prejudicial impact of

the photographs.

CONCLUSION

4
The State suggests in its brief that the photographs could be admitted for “other purposes”
under M. R. Evid. 404(b), such as to corroborate Mary’s testimony that Sage showed her the
disputed photographs and talked to her about his interests in “exotic” photography. We make
two points in this connection. First, the State failed to comply with the requirements of the
Modified Just Rule. Thus, the State’s argument for admission of this evidence for “other
purposes” under M. R. Evid. 404(b) is a non-starter. Second, the State correctly notes that
Mary’s testimony about the pictures, and the fact that Sage showed them to her, has not been
challenged on appeal. Accordingly, our Opinion expresses no view on these collateral issues and
is solely concerned with the admission of the photographs themselves.

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¶43 We conclude the District Court abused its discretion when it admitted evidence of

marijuana use at Sage’s house and the disputed photographs under the transaction rule.

We reverse Sage’s conviction and remand this matter for a new trial in a manner

consistent with this Opinion.

/S/ PATRICIA COTTER

We concur:

/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ MICHAEL E WHEAT

Chief Justice Mike McGrath, concurring in part and dissenting in part.

¶44 I concur in the Court’s opinion that under the circumstances of this case the

admission of drug use at Sage’s house was not harmless error and, thus, the conviction

should be reversed.

¶45 However, I dissent from the Court’s holding regarding the photographs. Because

the Court has reversed the conviction based on the marijuana evidence, it was not

necessary to address the admission of the photographs. I would not reach this issue.

¶46 Therefore, I concur in part and dissent in part.

/S/ MIKE McGRATH

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