State v. McGhee
| Decision Date | 03 August 2021 |
| Docket Number | DA 19-0608 |
| Citation | 405 Mont. 121,492 P.3d 518 |
| Court | Montana Supreme Court |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Barak James MCGHEE, Defendant and Appellant. |
For Appellant: Megan M. Moore, Watson Law Office, PC, Bozeman, Montana
For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Janet Christoffersen, Richland County Attorney, Charity McLarty, Deputy County Attorney, Sidney, Montana
¶1 Barak James McGhee appeals his 2019 judgment of conviction and sentence in the Montana Thirteenth Judicial District Court, Richland County, on the offense of Indecent Exposure to a Minor, a felony in violation of § 45-5-504(3), MCA. We address the following restated issues:
We affirm.
¶2 On November 21, 2018, the State charged McGhee by Information with two counts of Indecent Exposure to a Minor, based on an allegation that he exposed his penis to his nine-year-old twin daughters. The allegation arose in the context of the ongoing strained relationship between McGhee and the girls’ mother (Mother) following their breakup in 2012. The breakup resulted in a court-ordered parenting plan which gave McGhee custody of the girls on alternating weekends. In 2018, Mother alleged to police that, on or about September 7, 2018, the twins told her that, during their last weekend stay with McGhee, he pulled his pants down and showed them his "private parts" in their bedroom at his home in Sidney, Montana. The revelation allegedly occurred in the context of her styling the girls’ hair for school photos and discussing their upcoming weekend stay with McGhee. In subsequent forensic interviews conducted by a child protection specialist, the girls told the interviewer, consistent with Mother's initial report, that he dropped his pants and showed them his "naughty parts" in response to a question from one of them about "how babies were made."
¶3 At the final pretrial status hearing on May 13, 2019, McGhee objected to a reference on the State's trial exhibits list to investigatory materials obtained from North Dakota law enforcement authorities regarding a 2015 allegation by Mother that he exposed his penis to the girls, put a candy sucker on it, and had them lick the sucker. Mother further alleged that he also placed a sucker on or near the vagina of one of the girls and then licked the vaginas of both girls. McGhee denied the allegations and the ensuing investigation resulted in no criminal charges. During the pendency of the investigation, however, Mother obtained a temporary civil court order suspending his access to the girls under the parenting plan. The order remained in effect for almost two years, apparently due to his inability to get confirmation of the close of the investigation. In July 2017, following court-ordered reunification therapy, the North Dakota court reinstated his parenting rights under the prior parenting plan.
¶4 Based on McGhee's pretrial objection in this case, the court ordered simultaneous pretrial briefing on the admissibility of the 2015 North Dakota allegations in regard to the subject offenses. The resulting briefing focused on whether the prior North Dakota allegations would be properly admissible at trial under M. R. Evid. 404(b) for a legitimate non-propensity purpose. Pursuant to State v. Madplume , 2017 MT 40, 386 Mont. 368, 390 P.3d 142, the State asserted that the prior bad acts evidence would be admissible as evidence that McGhee committed the subsequently charged offenses in accordance with a common plan, motive, or intent. He countered that Madplume was distinguishable and that the North Dakota allegations were otherwise insufficient under M. R. Evid. 404(b) for the State's asserted purpose. On the morning of trial, and in the wake of the State's objection to a suggested continuance to allow McGhee adequate time to review and address the particulars in the North Dakota materials,1 the District Court sustained his earlier objection and barred the State from introducing or referencing the North Dakota allegations without prior leave of court.
¶5 At trial, after presentation of the State's case-in-chief, McGhee presented the testimony of his two brothers and long-time girlfriend who described his relationship with the girls as "wonderful," "excellent," or "great." His girlfriend further testified that, during their six-year relationship, she never saw the girls fearful of McGhee or saw anything "inappropriate." One of his brothers similarly testified that, "[a]ll I ever saw was him being a good dad."
¶6 McGhee then testified on his own behalf. When asked by counsel to "describe [his] relationship with [the] girls," he answered:
(Emphasis added.)
¶7 At a sidebar following McGhee's direct testimony, the State asked the court to reconsider its earlier ruling barring reference to the prior North Dakota allegations. The prosecutor asserted that, in light of McGhee's testimony that he had an "awesome" relationship with the girls, the State:
is basically hamstrung, at this point, without bringing in prior bad acts[.] ... [W]e can't really refute the fact without bring[ing in] ... that the relationship has not always been a good relationship[,] as he's trying to show the jury[.] So, ... the State is not able to counter without using ... some of those [prior allegations]. So, we are asking for leniency in cross ... [to] ask him those questions.
Through counsel, McGhee objected on relevance grounds, to wit:
Judge, we did not open the door for 404(b). The State also asked questions about the girls’ relationship and how they missed their dad and I was very careful ..., I tried to tailor my questions with regard to describing things that happened this last summer. I did not ask him ‘have you been accused of anything else.’ ... I tried to tailor it with regard to, specifically, this last summer. ... [I]f he said I've always ha[d] a good relationship with them, I do not believe that opens the door to a whole can of worms of allegations from another jurisdiction which, again, I still have not had the opportunity to ferret out. I think ... simply saying he's had a good relationship with his daughters does not open that door. Everyone ... has indicated that the girls love their dad and that they miss their dad. That, in and of itself, is – we're all trying to play within the perimeters of avoiding talking about some other alleged act.
¶8 The District Court concluded, however, that McGhee's response to the defense questioning about the nature of his relationship with his girls was sufficiently "broad" to "open[ ] up the door" by making the prior allegations relevant to refute his broad characterization of the relationship. After the court granted the State "some latitude," the following colloquy ensued on cross-examination when trial resumed the next day:
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