APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DC 10-82 Honorable James B. Wheelis, Presiding Judge
The opinion of the court was delivered by: Jim Rice
Submitted on Briefs: December 12, 2012
Justice Jim Rice delivered the Opinion of the Court.
¶1 A jury convicted Peter Earl Caswell (Caswell) of sexual intercourse without consent and partner/family member assault in the Nineteenth Judicial District Court, Lincoln County. Caswell argues that his due process rights were violated when a portion of the trial was not recorded during the State's case in chief and effective appellate review is now unavailable. Caswell also argues that the District Court erred by admitting evidence of Caswell's prior assault on the victim. We affirm.
¶2 We consider the following issues:
¶3 1. Was the defendant's right to due process violated by the failure to record a portion of the State's case in chief?
¶4 2. Did the District Court abuse its discretion by admitting evidence of the defendant's prior assault of the victim?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Caswell and Beth Caswell (Beth) were married for more than 40 years and had five children together, all of whom are now adults. Caswell and Beth have lived separately since March 26, 2009, when an argument between Caswell and Beth escalated into an altercation in which Caswell punched Beth several times in the face. Beth sustained injuries, including a black eye and a swollen face. Caswell was arrested by Captain Bo Pitman of the Lincoln County Sheriff's Office and was ultimately convicted of one count of misdemeanor partner/family member assault arising from the incident.
¶6 Caswell left the Lincoln County area for about a year after this assault but returned in the spring of 2010, renting a house in Eureka. Although separated, Caswell and Beth had occasional contact. Beth lived in a small cabin on 12.5 acres of land owned by her son, Ian, who also lived on the property, in an isolated area approximately 30 miles from Eureka. Beth occasionally took care of Caswell's dog. Caswell knew that he was expected to call before going to Beth's cabin, and Ian was usually present for those visits. Caswell took an extended trip to the eastern United States in the summer of 2010. During his return trip he called Beth frequently and told her he was returning to Eureka and did not want a divorce. Beth expressed her disfavor with his return and his intentions about the marriage. Caswell became stranded on the trip and Beth sent him money. Caswell returned on August 11, 2010, and, with Beth's permission, drove to Beth's cabin that night to drop off his dog. Ian was there, and they ate dinner. Caswell tried to convince Beth to reconcile and became agitated when she disagreed, leaving angrily. Beth was afraid Caswell would return and Ian slept on her couch that night. Caswell called Beth the next day and apologized. He then made further arrangements with her to take care of his dog.
¶7 On August 14, 2010, Beth and Ian had dinner again in Beth's cabin and Ian returned to his cabin for the night. At about 10:00 p.m., Beth was in her pajamas, sitting and watching television. Her door was not locked. She had not seen anyone drive up her driveway. She felt a hand on her shoulder. Startled, she stood up and saw Caswell. She asked him what he was doing there. He sat down on the loveseat and told Beth to do the same. She moved toward the dining area and asked him to leave. Caswell ignored Beth, threatened to kill himself, and said that he wanted to make love to her. Beth told Caswell "no" and again told him to leave. Caswell became belligerent, told Beth he was going to have sex with her, and grabbed Beth. Beth resisted, but Caswell used his size advantage to force Beth toward the bedroom. Beth wedged herself in the bathroom doorway and bit Caswell in the shoulder. She pleaded with Caswell "not to do this." Caswell pushed Beth onto the bed and pulled off her pajama bottoms over Beth's resistant kicking. Caswell ordered her to take off her top and she complied, believing further resistance futile. When Caswell left the room briefly, Beth attempted to call Ian on her cell phone, and grabbed a flashlight to hit Caswell. Caswell took the phone and flashlight away from Beth and subjected her to oral, vaginal, and anal sex. When finished, Caswell asked Beth if she wanted to call the sheriff, and she said no, believing Caswell was testing her. He then asked if he could come back later. Attempting to convince Caswell to leave, Beth said he could.
¶8 When Caswell left, Beth immediately locked the door and called 911 to report Caswell's assault. Ian came to the cabin to wait with Beth for an officer. Captain Pitman arrived at Beth's cabin in the early morning hours of August 15, 2010, and transported Beth to another son's house in Eureka. Detective Rhoades, assigned to investigate sex crimes, was contacted and took over the investigation. Ian stayed at Beth's cabin in case Caswell returned, which he did. Captain Pitman returned to Beth's cabin and arrested Caswell without incident. Caswell was charged with one count of felony burglary, in violation of § 45-6-204, MCA, one count of felony sexual intercourse without consent, in violation of § 45-5-503, MCA, and one count of misdemeanor partner/family member assault, in violation of § 45-5-206, MCA.
¶9 Caswell filed a pre-trial motion in limine requesting the court, among other things, to exclude all evidence relating to the prior assault on March 26, 2009. The State resisted, arguing that this evidence "goes directly to the critical question as to whether or not there was consent to the sexual intercourse, and whether or not the victim was ...