State v. Stock

June 7 2011

DA 10-0295

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 131

STATE OF MONTANA,

Plaintiff and Appellee,

v.

DONALD RUDOLPH STOCK,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. ADC 2009-123
Honorable Dorothy McCarter, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Chad Wright, Attorneys at Law, Helena, Montana

Gregory A. Jackson, Attorney at Law, Helena, Montana

For Appellee:

Steve Bullock, Montana Attorney General, Tammy K Plubell, Assistant
Attorney General, Helena, Montana

Leo J. Gallagher, Lewis and Clark County Attorney, Tara Harris, Deputy
County Attorney, Helena, Montana

Submitted on Briefs: April 26, 2011

Decided: June 7, 2011

Filed:

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

¶1 Donald Stock (Stock) appeals from his convictions of felony incest, involving his

fourteen-year-old son and six-year-old daughter, in violation of §§ 45-5-507(1), (4) and

45-2-101(8), MCA, and his conviction of felony tampering with evidence in violation of

§ 45-7-207, MCA. We affirm.

ISSUES

¶2 A restatement of Stock’s issues on appeal is:

¶3 1. Did the District Court err when it allowed a six-year-old alleged incest victim

to testify via two-way electronic audio-video communication rather than in the presence

of Stock and the jury?

¶4 2. Did the District Court abuse its discretion when it prohibited Stock from

conducting a forensic interview with, and calling as a trial witness, the four-year-old

sibling of the two alleged incest victims?

¶5 3. Did the District Court err in allowing the State to present evidence and

summary testimony regarding pornographic images obtained from Stock’s computer

under § 26-1-103, MCA, the transaction rule?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 Stock married Debbie Wakeland on May 5, 2001. Debbie had a son, E.S., from a

previous marriage who Stock adopted in April 2006. In 2002, Debbie gave birth to K.S.,

a daughter, and in 2004 Debbie gave birth to Z.S., a son. In December 2008 Debbie

decided she could no longer remain married to Stock and told him she was leaving. This

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marked the beginning of lengthy and rancorous dissolution and child custody

proceedings.

K.S. Permitted to Testify Outside the Presences of Stock and the Jury

¶7 On May 1 2009, fourteen-year-old E.S. confided in a school counselor that Stock

was sexually abusing him. After an investigation of the allegations by Child Protective

Services and the Helena Police Department, the State charged Stock with felony incest

committed against E.S. On August 26, 2009, the State amended the Information to

include a second count of felony incest involving Stock’s six-year-old daughter, K.S., and

one count of tampering with evidence.

¶8 Pursuant to § 46-16-277, MCA, the State moved the District Court to allow K.S. to

testify outside the presence of Stock via two-way electronic audio-video communication.

Stock objected. After the motion was fully briefed, the District Court held a hearing on

November 4, 2009, in compliance with § 46-16-228(1), MCA. Based on the evidence

and arguments presented in the briefing and at the hearing, the District Court found that

K.S. would be unable to testify in Stock’s presence and concluded, after considering all

of the factors enumerated in § 46-16-226(1)(a), MCA, that K.S. should be permitted to

testify outside the presence of the jury and the defendant. Stock appeals this pretrial

ruling.

Stock Prohibited from Interviewing Z.S.

¶9 Stock moved the court for an order to allow him to conduct forensic interviews of

E.S., K.S., and four-year-old Z.S. The State objected to Stock’s request as to Z.S. on the

grounds that Z.S. was not going to be called as a witness and Stock failed to establish a

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substantial need to interview him. The State did not object to his request related to E.S.

or K.S. On October 8, 2009, prior to the court’s ruling on the motion, Stock subpoenaed

E.S., K.S., and Z.S. to testify at trial. On October 21, 2009, the State moved in limine to

bar Stock from presenting testimony from Z.S., arguing that Z.S. had no relevant

testimony to offer, Z.S. was incompetent to testify because he could not distinguish truth

from a lie, and compelling him to testify would be psychologically damaging to Z.S.

¶10 On November 6, 2009, the District Court denied Stock’s request to interview Z.S.

because it concluded that Stock had not established a substantial need to interview such a

young child. On January 6, 2010, the District Court denied Stock’s request to have Z.S.

testify at trial because of Z.S.’s incompetence and the potential psychological harm to

him. Stock appeals the pretrial rulings precluding him from interviewing Z.S. and calling

him as a witness.

Admissible Pornographic Computer Images from Stock’s Computer

¶11 During one of her interviews with police investigators, K.S. revealed that Stock

had used a computer to show her a video of a “little green man” wearing a white diaper

who would pull down the diaper to expose his “booty.” K.S. told the investigators that it

was “nasty” and that the incident occurred at Stock’s workplace. The State obtained a

search warrant to search Stock’s computers for this video as evidence that Stock was

“grooming” his victims by showing them sexually inappropriate images. The search was

conducted by Agent Cooperider from the Department of Justice’s Computer Crime Unit.

Cooperider’s search of Stock’s computers did not turn up the video of a little green man,

but did result in discovery of graphic images depicting young men engaged in

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homosexual activity. The images ranged from provocative poses to anal and oral sex

scenes.

¶12 Helena Police Department Detective Ekola applied for and obtained a second

search warrant specific to the images discovered by Cooperider during execution of the

first search warrant. Cooperider retrieved these images from a computer that was

assigned the user name of Donald Stock and was password-protected. Cooperider

summarized his findings in written reports.

¶13 The State filed notice of intent to introduce evidence of Stock’s prior bad acts by

way of Cooperider’s written summary reports; the State did not seek to introduce the

pornographic images themselves. It its notice, the State argued that the evidence was

admissible under M. R. Evid. 404(b) (hereinafter Rule 404(b)) and the transaction rule,

§ 26-1-103, MCA. Stock objected, arguing that the State could not prove it was Stock

who was responsible for accessing the internet images.

¶14 On December 22, 2009, the District Court concluded that the pornographic

evidence found on Stock’s computer was admissible under the transaction rule. The

court reasoned that the electronic evidence obtained from Stock’s computer was directly

related to elements of the incest charges with respect to both children. It further

concluded the relevance of the evidence far outweighed any prejudice to Stock and

denied Stock’s motion to exclude the electronic evidence. Stock appeals this pretrial

ruling.

¶15 Ultimately, on March 17, 2010, after a seven-day jury trial, Stock was found guilty

of all offenses charged. On June 11, 2010, the District Court sentenced Stock to Montana

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State Prison for a term of fifty years with twenty-five suspended for each count of felony

incest and for a term of ten years for felony evidence tampering. Stock is not eligible for

parole until Z.S., his youngest child, is eighteen years old. Stock timely appeals only the

three pretrial rulings discussed above. Additional facts are included below as necessary.

STANDARDS OF REVIEW

¶16 Stock argues the use of two-way electronic audio-video communication testimony

during trial violates his constitutional right to confront witnesses against him. Our review

of constitutional questions is plenary and we therefore review de novo a district court’s

interpretation of the Sixth Amendment to the United States Constitution and Article II,

Section 24 of the Montana Constitution. State v. Norquay, 2011 MT 34, ¶ 13, 359 Mont.

257, 248 P.3d 817.

¶17 Generally, we review a district court’s evidentiary rulings for an abuse of

discretion. State v. Mackrill, 2008 MT 297, ¶ 37, 345 Mont. 469, 191 P.3d 451. Rulings

on motions in limine are evidentiary rulings and the district court has broad discretion to

determine the relevance and admissibility of evidence. State v. Snell, 2004 MT 334, ¶ 17,

324 Mont. 173, 103 P.3d 503. A district court abuses its discretion if it acts arbitrarily

without the employment of conscientious judgment or exceeds the bounds of reason,

resulting in substantial injustice. Mackrill, ¶ 37. Notwithstanding this deferential

standard, however, judicial discretion must be guided by the rules and principles of law;

thus, our standard of review is plenary to the extent that a discretionary ruling is based on

a conclusion of law. Id.

DISCUSSION

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¶18 Issue One: Did the District Court err when it allowed a six-year-old alleged
incest victim to testify via two-way electronic audio-video communication rather
than in the presence of Stock and the jury?

¶19 Stock argues that §§ 46-16-226 to -229, MCA, which is Montana’s statutory

scheme allowing a child witness to testify outside the presence of a criminal defendant, is

unconstitutional because it violates a criminal defendant’s right to confront witnesses

against him. Statutes are presumed to be constitutional, and we construe them in a

manner that avoids unconstitutional interpretation. State v. Trull, 2006 MT 119, ¶ 30,

332 Mont. 233, 136 P.3d 551. The party challenging a statute’s constitutionality has the

burden of proving, beyond a reasonable doubt, that the statute is unconstitutional, and any

doubt is resolved in favor of the statute. Id. (citing State v. Stanko, 1998 MT 321, ¶ 16,

292 Mont. 192, 974 P.2d 1132).

¶20 For purposes of this case, a child witness is an individual who is “13 years of age

or younger at the time the individual is called as a witness in a criminal proceeding

involving a sexual or violent offense.” Section 46-16-226(1)(a), MCA. Section

46-16-227, MCA, provides that:

[u]pon motion by the prosecution or defense if the defense intends to call a
child witness other than the victim in its case in chief, a court shall conduct
a hearing to consider whether the testimony of a child witness may be taken
outside the presence of the defendant and communicated to the courtroom
by two-way electronic audio-video communication.

¶21 Section 46-16-228, MCA, outlines the factors a court must consider in

determining whether a child witness is in need of protection. Section 46-16-229(1),

MCA, states that a court “shall order that the testimony of a child witness be taken by

two-way electronic audio-video communication” if it finds by clear and convincing

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evidence “the child witness is unable to testify in open court in the presence of the

defendant” because the child witness’s fear is caused by the presence of the defendant,

because the child witness would suffer substantial emotional trauma from testifying in the

presence of the defendant, or because conduct by the defendant or the defendant’s

attorney would cause the child witness to be unable to continue testifying.

¶22 For the following reasons, we conclude that Montana’s statutory scheme does not

violate either the Sixth Amendment to the United States Constitution or Article II,

Section 24 of the Montana Constitution. Moreover, we conclude that the District Court

did not err in concluding that sufficient evidence existed to permit six-year-old K.S. to

testify outside the presence of Stock via two-way electronic audio-video communication.

¶23 The Confrontation Clause of the Sixth Amendment to the United States

Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him.” The Sixth Amendment’s right

of an accused to confront the witnesses against him is a fundamental right and is

obligatory on the states by virtue of the Fourteenth Amendment to the United States

Constitution. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 1067-68 (1965); State

v. Camitsch, 192 Mont. 124, 132, 626 P.2d 1250, 1255 (1981). The United States

Supreme Court has stated that the primary purpose of the Confrontation Clause is to

“ensure the reliability of the evidence against a criminal defendant by subjecting it to

rigorous testing in the context of an adversary proceeding” through a combination of

elements of confrontation. Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 3163

(1990). The elements of confrontation include physical presence of the witness,

8
testimony under oath, cross-examination of the witness, and observation of the witness’s

demeanor by the trier of fact. Id. at 845-46, 110 S. Ct. at 3163. While the United States

Supreme Court has observed that the Confrontation Clause guarantees criminal

defendants “a face-to-face meeting with witnesses appearing before the trier of fact,” it

has “never held, however, that the Confrontation Clause guarantees criminal defendants

the absolute right to a face-to-face meeting with witnesses against them at trial.” Id. at

844, 110 S. Ct. at 3162-63 (emphasis in original). Moreover, the United States Supreme

Court has also held that the word “confronted” cannot solely mean a literal face-to-face

confrontation because such a reading would “abrogate virtually every hearsay exception,

a result long rejected as unintended and too extreme.” Id. at 848, 110 S. Ct. at 3165

(quoting Ohio v. Roberts, 448 U.S. 56, 63, 100 S. Ct. 2531, 2537 (1980), overruled on

other grounds, Crawford v. Washington, 541 U.S. 36, 62-63, 124 S. Ct. 1354, 1370-71

(2004)).

¶24 In Craig, a criminal defendant challenged Maryland’s statutory scheme that

permitted child witnesses to testify via closed-circuit television in a child abuse case.

Much like Montana’s statutory scheme, Maryland law required the trial court to make

case-specific findings that the child witness was in need of protection. Craig, 497 U.S. at

840-42, 110 S. Ct. at 3161. Subsequent to a hearing, the Maryland court found that the

child could not testify in the presence of the defendant and thus permitted the child to

testify via closed-circuit television. Id. at 842-43, 110 S. Ct. at 3162. Upholding

Maryland’s law, the United States Supreme Court held that “[s]o long as a trial court

makes such a case-specific finding of necessity, the Confrontation Clause does not

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prohibit a State from using a one-way closed circuit television procedure for the receipt

of testimony by a child witness in a child abuse case.” Id. at 860, 110 S. Ct. at 3171. The

United States Supreme Court recognized that “a defendant’s right to confront accusatory

witnesses may be satisfied absent a physical, face-to-face confrontation at trial only

where denial of such confrontation is necessary to further an important public policy and

only where the reliability of the testimony is otherwise assured.” Id. at 850, 110 S. Ct. at

3166.

¶25 Without much legal analysis to bolster his assertions, Stock argues that Crawford

implicitly overruled Craig and expressed a preference for literal confrontation. We

disagree. Crawford did not overrule or even address Craig, nor have we found any other

state or federal case in which a court has concluded Crawford overruled Craig.

Conversely, at least four other appellate courts have explicitly stated the two cases may

coexist. See Michigan v. Buie, 775 N.W.2d 817, 825 (App. 2009) (applying Craig to the

issue of whether expert testimony given via two-way interactive technology violated the

defendant’s confrontation rights); Utah v. Henriod, 131 P.3d 232, ¶ 16 (2006) (rejecting

the argument that Crawford abrogated Craig); Wisconsin v. Vogelsberg, 724 N.W.2d

649, ¶¶ 14-17 (App. Dist. IV 2006), cert. denied, Vogelsberg v. Wisconsin, 550 U.S. 936,

127 S. Ct. 2265 (2007) (applying Craig to the issue of whether testimony given by a child

witness from behind an opaque screen violated a defendant’s confrontation rights);

Missouri v. Griffin, 202 S.W.3d 670, 680-81 (App. W. Dist. 2006) (rejecting the

argument that Crawford overruled Craig).

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¶26 In Crawford, the United States Supreme Court revised its approach to the

admissibility of testimonial hearsay against a criminal defendant at trial, holding that it

was admissible only if the defendant had a prior opportunity for cross-examination and

the witness is unavailable at trial. Crawford, 541 U.S. at 68, 124 S. Ct. at 1374. The

Crawford Court clarified that:

[t]o be sure, the Clause’s ultimate goal is to ensure reliability of evidence,
but it is a procedural rather than a substantive guarantee. It commands, not
that evidence be reliable, but that reliability be assessed in a particular
manner: by testing in the crucible of cross-examination. The Clause thus
reflects a judgment, not only about the desirability of reliable evidence (a
point on which there could be little dissent), but about how reliability can
best be determined.

Id. at 61, 124 S. Ct. at 1370 (emphasis added). We continue to maintain this distinction

in our Confrontation Clause jurisprudence.

¶27 We relied on Craig in State v. Davis, 253 Mont. 50, 830 P.2d 1309 (1992) and

upheld the use of an opaque screen between a defendant and child witnesses during the

children’s testimony in a sexual abuse case. Davis, 253 Mont. at 58-59, 830 P.2d at

1315. We determined that the basic elements articulated in Craig were satisfied because

the child witnesses were physically present in the court, an oath was administered, the

children were cross-examined, and the jury was able to observe the demeanor of the child

witnesses. Id. at 58, 830 P.2d at 1315. Moreover, as required by Craig, the district court

made case-specific findings and concluded the potential for trauma to the child witnesses

existed, the trauma resulted from mere presence of the defendant in the courtroom, and

the trauma would be more than ordinary courtroom nervousness. Id. at 57, 830 P.2d at

1314. We affirmed the district court, holding that it did not err in permitting the opaque

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screen to be placed between the defendant and the child witnesses during the children’s

testimony.

¶28 Separate and apart from the federal right, Article II, Section 24 of the Montana

Constitution guarantees that a criminal defendant has the right “to meet the witnesses

against him face to face.” Stock argues that we should read this provision to afford

greater protection to criminal defendants than is afforded by its federal counterparts, by

holding that the Montana Constitution requires literal face-to-face confrontation. While

we have held that Article II, Section 24 provides greater protection than its federal

counterpart, see e.g. State v. Clark, 1998 MT 221, ¶22, 290 Mont. 479, 964 P.2d 766, we

have never interpreted that greater protection to entitle a criminal defendant to literal

face-to-face confrontation with all witnesses.

¶29 With respect to confrontation, we continue to recognize that Article II, Section 24

guarantees criminal defendants the right to “full cross-examination” because it is a

“critical aspect of the right to confrontation” and “the hallmark of our system of justice

because it produces truth. Such things as demeanor of a witness, his or her body

language, and a witness’s hesitancy in giving testimony, often communicate as much to

the fact-finder as the spoken words.” State v. Parker, 2006 MT 258, ¶ 20, 334 Mont.

129, 144 P.3d 831 (quoting Clark, ¶¶ 22-23).

¶30 Consistent with the requirements of the Confrontation Clause as articulated in

Craig and in Article II, Section 24 of the Montana Constitution as articulated in Parker,

we conclude that Montana’s statutory scheme permitting child witnesses to testify outside

the presence of a criminal defendant is constitutional because it requires an adequate

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showing of necessity and serves the compelling state interest of protecting a child witness

from suffering further trauma by testifying in the presence of an alleged abuser. Once a

motion is presented under § 46-16-227, MCA, to have the testimony of a child witness

taken outside the presence of the defendant, the district court must hold a hearing

pursuant to § 46-16-228, MCA. During the hearing the district court is required to make

case-specific findings based on the evidence presented by the moving party as to whether

the welfare of the child witness necessitates taking his or her testimony via two-way

audio-video communication. Section 46-16-228(3), MCA, outlines the factors a district

court must consider during the hearing, and § 46-16-229(1), MCA, articulates the three

circumstances under which a district court must order the testimony of the child witness

be taken via two-way audio-video communication. Moreover, § 46-16-229(2), MCA,

articulates the precise procedure for taking a child witness’s testimony.

¶31 Even though a child witness may testify outside the physical presence of the

defendant, the other elements of confrontation are satisfied. The child witness must

testify under oath, is subject to contemporaneous cross-examination by the defendant’s

attorney, and is viewed and heard, albeit via a monitor, by the defendant and the

fact-finder. Additionally, the defendant is able to communicate contemporaneously with

his or her attorney during the testimony. Section 46-16-229(3), MCA.

¶32 Consistent with the statutory requirements, K.S. testified under oath, Stock had the

opportunity of a full and contemporaneous cross-examination of K.S., and Stock and the

jury had the ability to listen to K.S. and observe her demeanor, body language, and any

hesitancy during testimony in real-time via the two-way audio-video monitor. Stock also

13
had the opportunity to confer with his attorney during the testimony. Stock’s right to

confront K.S., a child witness against him, was not violated when the District Court

permitted her to testify outside of Stock’s presence pursuant to §§ 46-16-226 to -229,

MCA.

¶33 Stock argues that the District Court’s findings were insufficient to justify the use

of audio-video testimony because the court found that six-year-old K.S. would be

traumatized by testifying in open court, not specifically by the presence of the defendant.

Stock misstates the District Court’s findings and misinterprets the testimony given during

the § 46-16-228, MCA, hearing. During the hearing, Sandi Ashley, LCPC, testified at

length as K.S.’s counselor that Stock was a “trauma trigger” for K.S. because Stock’s

presence at any time makes K.S. anxious, scared, and upset to the point that she would be

unable to testify. Ashley also testified that K.S. suffers from separation and sexual

assault issues, which have led to K.S. being treated for anxiety disorder and

post-traumatic stress disorder. Moreover, Ashley testified that she would be unable to

prepare K.S. to testify in Stock’s presence. After the hearing, the District Court found

“by clear and convincing evidence that if required to testify in the courtroom in front of

the jury and the Defendant, K.S. would be unable to testify in a meaningful way and, in

addition, would be severely traumatized and emotionally damaged.” (Emphasis added.)

¶34 Stock has failed to prove beyond a reasonable doubt that §§ 46-16-226 to -229,

MCA, are unconstitutional. Stock’s constitutional right to confront witnesses against him

was not violated when K.S. testified via two-way electronic audio-video communication.

Further, we hold that there was substantial evidence to support the District Court’s

14
findings and conclude the District Court did not err in permitting K.S. to testify outside

the presence of the defendant via two-way electronic audio-video communication.

¶35 Issue Two: Did the District Court abuse its discretion when it prohibited Stock
from conducting a forensic interview with, and calling as a witness at trial, the
four-year-old sibling of the two alleged incest victims?

¶36 Stock argues that he was prohibited from mounting a defense when the District

Court granted the State’s motion in limine prohibiting Stock from interviewing or calling

as a witness Z.S., the four-year-old sibling of E.S. and K.S. Stock asserts on appeal that

Z.S. could have testified that he had not been abused by Stock or that he did not see Stock

abuse K.S.; however, Stock offers no evidence on the record to suggest that Z.S. had any

personal knowledge of the alleged abuse of E.S. or K.S. The State contends that the

District Court did not err in prohibiting Stock from interviewing Z.S. or calling him as a

witness because Z.S. was not competent to testify and did not have relevant testimony to

give.

¶37 The purpose of a motion in limine is “to prevent the introduction of evidence

which is irrelevant, immaterial, or unfairly prejudicial.” State v. Meredith, 2010 MT 27,

¶ 42, 355 Mont. 148, 226 P.3d 571 (quoting State v. Krause, 2002 MT 63, ¶ 32, 309

Mont. 174, 44 P.3d 493). Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” M. R. Evid. 401. Only

relevant evidence is admissible. M. R. Evid. 402. Evidence that is relevant may be

excluded, however, if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury. M. R. Evid. 403.

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¶38 Preliminary qualifications of a person to be a witness shall be determined by the

court. M. R. Evid. 104(a). While all witnesses are presumed to be competent,

M. R. Evid. 601(b) provides that a person is disqualified to be a witness if the court finds

that the witness is “incapable of understanding the duty of a witness to tell the truth.” A

witness appreciates the duty to tell the truth if he or she understands the difference

between a truth and a lie and understands that he or she must tell the truth in court. State

v. Olsen, 286 Mont. 364, 370, 951 P.2d 571, 575 (1997). Additionally, a witness may not

testify as to a matter unless evidence is introduced sufficient to support a finding that the

witness has personal knowledge of the matter. M. R. Evid. 602. Regarding child

witnesses, there is no minimum age requirement; however, “child witnesses need

‘protection against the potential emotional and psychological injuries’ that may occur

with regular litigation procedures.” Henricksen v. State, 2004 MT 20, ¶ 46, 319 Mont.

307, 84 P.3d 38 (quoting State v. Sor-Lokken, 247 Mont. 343, 349, 805 P.2d 1367, 1372

(1991)).

¶39 Stock initially moved to have a forensic interviewer conduct interviews of E.S.,

K.S., and Z.S. However, after briefing the District Court determined that that there

would be no interview of Z.S. based on his age, that he would not be called as a witness

by the State, and that Stock had failed to establish a substantial need to interview him

pursuant to § 46-15-322(5), MCA (“Upon motion showing that the defendant has

substantial need in preparation of the case for additional material or information not

otherwise provided for and that the defendant is unable, without undue hardship, to

obtain the substantial equivalent by other means, the court, in its discretion, may order

16
any person to make it available to the defendant.”). Stock also subpoenaed Z.S. to be a

witness at trial. Weighing Stock’s desire to have Z.S. testify against Z.S.’s incompetency

and potential psychological harm, the District Court granted the State’s motion in limine

to prohibit Z.S. from testifying. The court found Z.S. had not disclosed any information

that would be helpful from either party’s perspective, the State was not calling Z.S. as a

witness, Z.S. was incompetent because he could not differentiate a truth and a lie, and

testifying would be psychologically damaging to Z.S. according to his counselor’s

testimony.

¶40 Given the deference we afford to evidentiary rulings by a district court, we

conclude that the District Court did not abuse its discretion by prohibiting Z.S. from

being interviewed or from testifying, and we conclude that Stock was not thereby denied

the right to present a defense. Although given every opportunity, Stock failed to show

that Z.S. possessed any relevant information. Under the circumstances, the District Court

did not abuse its discretion because it did not act arbitrarily. Given the record before us,

we conclude it was entirely reasonable for the court to conclude that Z.S. did not have

relevant testimony to offer, was incompetent to testify, and would be psychologically

harmed if required to testify. Therefore, we affirm the District Court’s order prohibiting

Z.S. from being interviewed and from testifying at trial.

¶41 Issue Three: Did the District Court abuse its discretion in allowing the State to
present evidence and summary testimony regarding pornographic images
obtained from Stock’s computer under § 26-1-103, MCA, the transaction rule?

¶42 Prior to trial, the State filed notice of intent to introduce electronic evidence of

internet usage and pornographic images found on a computer seized from Stock’s

17
workplace. The State asserted that this evidence was admissible under the transaction

rule and Rule 404(b). Stock objected to the introduction of the pornographic images

found on the computer and the keyed-in search terms on three grounds: (1) the State

could not prove it was Stock who engaged in the conduct; (2) the images were irrelevant

because neither E.S. nor K.S. claimed to have seen them; and (3) the evidence is

improper character evidence intended solely to inflame the jury. The parties fully briefed

the admissibility of the evidence on both grounds—the transaction rule and Rule 404(b).

The District Court ultimately denied Stock’s motion to suppress the evidence and allowed

the State to present the electronic evidence, relying on the transaction rule. The court

found that it was relevant evidence of an integral part of the offense of incest, and its

relevance far outweighed any prejudice to Stock.

¶43 Importantly, the State ultimately decided not to introduce the actual pornographic

images to which Stock objected. During trial, the State called Cooperider to testify

generally as to how he searched Stock’s computers and what he found during those

searches. Cooperider testified as to the search terms that had been entered and described

the pornographic images. Contrary to Stock’s assertion on appeal, Cooperider’s

descriptions were neither graphic nor lurid. During Cooperider’s testimony, the State

moved to introduce six written summaries (State’s Exhibits 74-79) of Cooperider’s

findings. Exhibits 74-76 and 79 depicted the summaries of the graphics, filenames, and

cookies Cooperider extracted from Stock’s computer. The summaries included the

filename, path, size, and—except for Exhibit 74—the dates and times the file was

created, modified, and accessed. Exhibits 77 and 78 were similar summaries

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accompanied by screenshots of searches performed on Stock’s computer. Notably, when

these summary exhibits were offered, Stock affirmatively stated he had no objection to

the admission of five of the six exhibits. He objected only to the admission of State’s

Exhibit 74 because the summaries did not include the dates and times the files were

created, modified, and accessed.

¶44 On appeal, Stock argues that the District Court erred by admitting the electronic

evidence under the transaction rule because it was not inextricably intertwined with the

allegations of incest. The State argues that the District Court did not err in admitting the

evidence under the transaction rule and, in the alternative, argues we may affirm

admissibility under Rule 404(b) since the parties briefed admissibility on both grounds.

It his reply brief, Stock maintains that the State raises admissibility of the evidence under

Rule 404(b) for the first time on appeal; however, the District Court’s order clearly shows

that the State argued admissibility on both grounds.

¶45 Notwithstanding these arguments, we decline to reach the merits of this issue

because Stock failed to preserve it for appeal. We have held that “a motion in limine may

relieve a party of the obligation to contemporaneously object at trial providing that the

motion is specific and articulates the grounds for the objection.” State v. Ankeny, 2010

MT 224, ¶ 39, 358 Mont. 32, 243 P.3d 391 (emphasis added). However, “specific

objections must be made to portions of testimony deemed inappropriate; broad general

objections do not suffice.” Ankeny, ¶ 37 (internal citations omitted). To preserve a

pretrial objection for appeal through a motion in limine, the motion must be “sufficiently

specific as to the basis for the objection.” State v. Vukasin, 2003 MT 230, ¶ 29, 317

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Mont. 204, 75 P.3d 1284 (quoting State v. Stuit, 277 Mont. 227, 230, 921 P.2d 866, 868

(1996)). For the following reasons, we conclude Stock’s pretrial objection was not

sufficiently specific on this issue to preserve it for appeal, particularly when Stock did not

make a contemporaneous objection to Cooperider’s testimony or admission of the

summary exhibits at trial.

¶46 In his pretrial motion to suppress the electronic evidence, Stock objected to the

introduction of the pornographic images themselves and the search terms. The images

were never introduced. Stock did not object to Cooperider being called as a witness,

even though he was aware of the contents of Cooperider’s testimony. At trial, Stock did

not object to Cooperider’s testimony and, in fact, affirmatively stated he had no objection

to the admission of State’s Exhibits 75-79, which were Cooperider’s written summaries

of the electronic evidence. Stock objected only to the admission of State’s Exhibit 74

because it was not time-stamped; Stock did not object that it was inadmissible under Rule

404(b). His objection was overruled and he does not appeal that trial ruling.

¶47 Now, on appeal, Stock complains that he was prejudiced because “Cooperider

provided lurid, graphic descriptions of the images . . . [t]he admission of such evidence

could only serve to shock the jury.” Not only is his characterization of Cooperider’s

testimony as “lurid” incorrect, Stock never objected to Cooperider as a witness or to any

portion of Cooperider’s testimony. Stock cannot now complain that the trial court erred

in admitting that testimony because “his failure to object to the testimony during trial

failed to provide the District Court with ‘the opportunity to rule on the admissibility of

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evidence and to correct itself.’ ” Vukasin, ¶ 37 (quoting Stuit, 277 Mont. at 230, 921 P.2d

at 868).

¶48 Stock’s motion in limine challenged the admissibility of the pornographic images

themselves. The motion in limine did not preserve for appeal any argument as to a

summary description of the photographic images. This fact, when combined with Stock’s

affirmative representation that he had no objection to the summary evidence, compels the

conclusion that Stock failed to preserve any possible error arising out of the admission of

the summary evidence for appeal. We therefore affirm the District Court’s pretrial ruling

denying Stock’s motion to suppress and admitting the summaries of the electronic

evidence from Stock’s workplace computer.

CONCLUSION

¶49 For the foregoing reasons, we affirm the District Court’s rulings allowing K.S. to

testify via two-way electronic audio-video communication pursuant to § 46-16-229,

MCA, prohibiting Z.S. from being interviewed or called as a witness, and allowing the

State to present electronic evidence obtained from Stock’s computer.

¶50 Affirmed.

/S/ PATRICIA COTTER

We concur:

/S/ MIKE McGRATH
/S/ JIM RICE
/S/ BRIAN MORRIS
/S/ BETH BAKER

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