State v. McGhee

Decision Date03 August 2021
Docket NumberDA 19-0608
Citation405 Mont. 121,492 P.3d 518
CourtMontana 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

Justice Dirk Sandefur delivered the Opinion of the Court.

¶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:

1. Whether the District Court erroneously allowed cross-examination of McGhee about a prior allegation of sexual misconduct toward his daughters to rebut his assertion that he previously had an "awesome" relationship with them?
2. Whether the District Court erroneously imposed an unduly harsh sentence?

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:

[B]efore all this, absolutely awesome .... I adore them, they ... adore me. ... [T]hey're always wanting to do stuff and they're always asking me, ... how to do some cool stuff ... [a]nd ... I'd like to think that we have a good relationship.
[Counsel]: Did they ever express any desire to not be around you?
[McGhee]: No, actually, quite the opposite. They would express regular[ly] that they wished they could live with me and they would say ... they love to [go] back to their mom [because] they love their little brothers ... but, they multiple times stated that they wanted to live with me.
[Counsel]: Did you have any reason to believe that they didn't want to be around you?
[McGhee]: No, not at all.

(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:

[State]: ... [Y]ou testified that you have an awesome ... relationship with your daughters. Is that correct?
[McGhee]: Yes.
[State]: [But] is it not true that there came a point when you didn't have any relationship with your daughters at all?
[McGhee]: Yes.
[State]: ... How long did you did you have to go without seeing your daughters?
[McGhee]: It was about two years.
[State]: And why was that?
[McGhee]: Because ... there was an allegation made in the past.
[State]: ... Was it made by your daughters?
[McGhee]: ... [I]t was made by [their mother] originally and then, yes, the girls were involved.
[State]: ... How old were the girls at that time?
[McGhee]: Four or five.
[State]: And so, ... you said it was two years you didn't see them?
[McGhee]: Yes.
[State]: So, why was it two years ... ?
[McGhee]: ... [W]hen the original allegation was started, [Mother] started by calling the local police ... and the Justice of the Peace ... suggested ... a restraining order until they got things actually moving with the case ....
[State]: But you're saying the case was closed and they still wouldn't tell you?
[McGhee]: They didn't tell me, no.
[State]: ... So, the girls were about ... four or five when th[e] [prior] alleged event happened, right?
[McGhee]: Yes.
[State]: ... [Since] you started having contact with your girls again, are you able to have them overnights? What was the set up?
[McGhee]: I started having them overnight right away. ... I'd had them overnight for well over a year before [the 2018] allegations came up.
[State]: ... [Y]esterday [your current girlfriend] testified that you guys had been together six years?
[McGhee]: [Yes].
[State]: So, ... she's aware of [the North Dakota allegations]?
[McGhee]: Yes[,] ... absolutely, she's aware of the events.
[State]: ... [I]sn't it true that yesterday ... you sat and listened to testimony where both of your daughters said that [one of them] told [their mother] that you dropped your pants in front of them?
[McGhee]: Yes, I heard that.
[State]: So, did the

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