Submitted on Briefs: June 12, 2013.
District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 11-180 Honorable Edward P. McLean, Presiding Judge.
For Appellant: Wade Zolynski, Chief Appellate Defender; Eileen A. Larkin, Assistant Appellate Defender; Helena, Montana.
For Appellee: Timothy C. Fox, Montana Attorney General; Tammy K Plubell, Assistant Attorney General; Helena, Montana, Fred R. Van Valkenburg, Missoula County Attorney; Jason Marks, Deputy County Attorney; Missoula, Montana.
BETH BAKER, Justice.
¶1 Following a three-day trial, a Missoula County jury convicted Donald P. Rogers of eight criminal counts, including sexual intercourse without consent, partner or family member assault, unlawful restraint, and violation of a no contact order. The Montana Fourth Judicial District Court subsequently sentenced Rogers to forty years at the Montana State Prison, with twenty years suspended. Rogers appeals his conviction. We reverse and remand for a new trial.
¶2 Rogers raises two issues on appeal:
¶3 1. Did the District Court violate Rogers's constitutional rights by precluding him from cross-examining the victim about her prior acts of violence against him unless he first testified to his defense of justifiable use of force?
¶4 2. Did the District Court err by allowing the State to question Rogers about his prior criminal history once he testified about the victim's prior acts of violence against him?
PROCEDURAL AND FACTUAL BACKGROUND
¶5 Over the course of a four-year period, Rogers and the alleged victim, S.M., engaged in an "on again, off again" romantic relationship that "had some good times and bad times"; it abruptly ended in mid-April 2011. Rogers agreed to meet with S.M. at 1:00 p.m. on April 15 to discuss their relationship as well as money Rogers owed S.M. When Rogers failed to arrive as agreed, S.M. called him and texted him numerous times. Eventually, Rogers told S.M. that he and his brother would have a drink with her at a bar in Missoula. S.M. testified that both Rogers and his brother had been drinking "quite a lot" and they were asked to leave the bar after Rogers's brother made a scene. Rogers told S.M. to go back to her home in Arlee and he "would be there later" after he finished "hanging out with [his] brother." S.M. continued to call and text Rogers throughout the evening of April 15 and into the early-morning hours of April 16.
¶6 S.M. testified that at approximately 3:00 that morning, she heard someone "banging" on her back door. Rogers then called S.M. and asked her to let him into the house. When she refused, Rogers broke into her home and "made it clear that he wanted to have . . . sexual relations[.]" S.M. described Rogers as being "very intoxicated" and testified that he was "slurring his words." S.M. later stated that after she asked Rogers to leave, he "hit [her] in the jaw . . . very hard" and prevented her from calling 911. At that point, S.M. stopped resisting Rogers's advances because she was afraid he would kill her unless she complied.
¶7 Rogers "basically held [S.M.] hostage from 3:00 a.m. to 7:00 a.m." He pinned S.M. down on her bed and, after he was unable to obtain an erection, he penetrated her with his fingers and tongue; later that morning he "masturbated over [her] head and chest." Rogers also choked S.M. "several times" during the ordeal and, when he needed to use the bathroom, he "grabbed the back of [her] hair" and "made [her] go into the restroom with him." S.M. tried to get Rogers to stop assaulting her by telling him that her daughter was picking up her dog at the house that morning; instead of stopping, Rogers stated he should stay so he could have sex with S.M.'s daughter as well and then "hurt both of [them]."
¶8 At approximately 7:00 a.m., Rogers left S.M.'s house. Even though S.M. had not reported Rogers for prior instances of abuse, she immediately called 911—in part because Rogers had threatened her daughter. Missoula County Sheriff's Deputies responded to the call and arrested Rogers outside of S.M.'s residence. Deputy Scott King later recalled that S.M. was coherent, but she "had a split lip, and a bruising on her face." She told Deputy King that Rogers had sexually and physically assaulted her that morning; she also reported that Rogers had physically assaulted her in November 2010.
¶9 After his arrest, Rogers was transported to the Missoula County Sheriff's Office, where Deputy William Burt interviewed him. Rogers "adamantly" denied breaking into S.M.'s house and told the deputy that S.M. had consented to having sex with him. Although he initially denied striking S.M., when Burt noticed Rogers had blood on his hand Rogers began to cry and admitted slapping S.M. in the face. Rogers explained that he struck S.M. after she made "comments about his brother's sexual offender status."
¶10 Deputy King then filled out a seventy-two-hour no-contact order and gave it to Rogers at the county jail. Rogers admitted at trial that, even though he understood he was prohibited from contacting S.M., he violated that order several times by calling S.M. from the jail. ...