State v. Kindt

Decision Date14 September 2021
Docket NumberDA 20-0152
PartiesSTATE OF MONTANA, Plaintiff and Appellee, v. DAVID JON KINDT, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana

Submitted on Briefs: August 18, 2021

APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Richland, Cause No. DC 18-04 Honorable Katherine M. Bidegaray, Presiding Judge.

For Appellant: Chad Wright, Appellate Defender, Haley Connell Jackson, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana

Janet Christoffersen, Richland County Attorney, Charity McLarty Deputy County Attorney, Sidney, Montana



¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 David Jon Kindt appeals a final judgment and sentencing order from the Seventh Judicial District Court, Richland County convicting him of aggravated assault and partner or family member assault (PFMA). We affirm.

¶3 On December 14, 2017, Kindt and his girlfriend, Pamella Johnson (Johnson), had an argument. As Johnson turned to leave, Kindt knocked her down and began kicking and stomping her. Johnson was finally able to leave and drove herself to the hospital. At the hospital, Dr. Dawn McCartney examined Johnson. Dr. McCartney's examination revealed that Johnson had sustained a fractured nasal bone and a broken ankle, and that Johnson had bruising and swelling on her face and abdomen. At the hospital, Johnson was also interviewed by Sidney Police Department Officer Timothy Case about her fight with Kindt. Johnson's interview with Officer Case was recorded on the body camera that Officer Case was wearing.

¶4 Kindt was charged with the following crimes by Information Count 1: Aggravated Assault, a felony, in violation of § 45-5-202, MCA; and Count 2: PFMA, a misdemeanor, in violation of § 45-5-206, MCA. Trial was held on October 16, 2019. At trial, the State sought to introduce the body camera recording of Johnson's interview with Officer Case. Kindt objected, arguing that the body camera recording was hearsay. The State argued that the recording was not hearsay because Johnson was available for cross-examination. The State also argued that the recording was admissible under the following hearsay exceptions: M. R. Evid. 803(1) (present sense impression), M. R. Evid. 803(2) (excited utterance), M. R. Evid. 803(3) (then-existing mental, emotional, or physical condition), and M. R. Evid. 803(5) (recorded recollection). The District Court overruled Kindt's objection and admitted the video recording into evidence.

¶5 The State also introduced testimony from Stacey Indergard, a registered nurse at Sidney Health Center. Indergard testified regarding the accuracy of several photographs she took of Johnson's injuries on December 14. The State provided testimony from Johnson regarding the events of December 14, and the severity of her injuries. Dr. McCartney testified that her examination of Johnson revealed a nasal fracture, a broken ankle, and some bruising and swelling on her face and abdomen. Dr. McCartney testified that the injuries were consistent with Johnson's report that she was assaulted but acknowledged on cross-examination that the injuries may have been caused by something else. Kindt offered no evidence in rebuttal of Johnson's testimony and acknowledged that he was guilty of PFMA. He denied beating Johnson in the manner she suggested and instead argued that Johnson's continued relationship with Kindt indicated that Johnson lacked credibility.[1]

¶6 The jury found Kindt guilty of all counts. Kindt received a twenty-year sentence with all but ten years suspended for his aggravated assault conviction and a one-year sentence with all but twenty-four hours suspended for his PFMA conviction. The District Court also ordered restitution and imposed a fine of $500.

¶7 Kindt appeals the District Court's admission into evidence of the recording of Johnson's interview with Officer Case. Kindt argues that the District Court committed reversible error when it admitted the recording into evidence. The State concedes that the District Court erred, but contends that, in light of the other evidence, such error was harmless.

¶8 A trial court's ruling on evidentiary matters is generally reviewed for an abuse of discretion; however, to the extent the trial court's ruling is based on an interpretation of an evidentiary rule or statute, the ruling is reviewed de novo. State v. Stewart, 2012 MT 317, ¶23, 367 Mont. 503, 291 P.3d 1187. ¶9 Before we turn to Kindt's appeal, we must address two preliminary matters. First, Kindt conceded to the PFMA charge at trial, and he does not appeal that conviction. Second, the State correctly acknowledges that the video recording of Johnson's testimony constituted hearsay. We adopt this concession and focus our analysis on the effect of the District Court's error.

¶10 We implement a two-step analysis to assess whether an error "prejudiced the criminal defendant's right to a fair trial and is therefore reversible." State v. Van Kirk, 2001 MT 184, ¶ 37, 306 Mont. 215, 32 P.3d 735. The first step determines whether the error is structural error or trial error. Van Kirk, ¶ 37. A structural error affects the framework within which the trial...

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