DA 07-0731

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 260

STATE OF MONTANA,

Plaintiff and Appellee,

v.

DARWIN KEITH BEROSIK,

Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and For the County of Flathead, Cause No. DC 05-145C

Honorable Stewart E. Stadler, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Lane K. Bennett, Attorney at Law, Kalispell, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,

Assistant Attorney General, Helena, Montana

Ed Corrigan, Flathead County Attorney; Lori Adams, Deputy County

Attorney, Kalispell, Montana

Submitted on Briefs: December 17, 2008

Decided: August 5, 2009

Filed:

__________________________________________

Clerk

August 5 2009
2

Justice John Warner delivered the Opinion of the Court.

¶1 After trial by jury, Darwin Keith Berosik was convicted oftwo counts ofincest in the

District Court of the Eleventh Judicial District, Flathead County. He was sentenced to 30

years in the Montana State Prison with 20 suspended. Berosik raisesthe following issues on

appeal:

¶2 Issue 1: Must the judgment be reversed because Berosik was excluded from

individual voir dire?

¶3 We conclude that the answer to the question posed by Issue 1 must be “yes.” Thus, 

Berosik is entitled to a new trial. Although we reverse Berosik’s conviction, we deem it 

appropriate to address other issues, asthey are almost certain to arise again upon retrial. See

State v. Michaud, 2008 MT 88, ¶ 43, 342 Mont. 244, 180 P.3d 636.

¶4 Issue 2: Did the District Court err in determining a child abuse expert was qualified

to testify concerning the concept of grooming in child sexual abuse cases?

¶5 Issue 3: Did the District Court err in admitting evidence of prior acts by Berosik?

¶6 Issue 4: Did the District Court err in denyingBerosik’s motion to suppress evidence

which was gathered by his wife?

FACTUAL AND PROCEDURAL BACKGROUND

¶7 In 1999, Berosik married and began living with Wanda Berosik and her three

daughters, R.W., age 9, B.W., age 11, and M.W. age 15. The three girls often accompanied

Berosik on his jobs as a truck driver. During these trips, Berosik would discuss puberty,
3

make comments about the girls’ bodies, and tell them they were beautiful. Over time,

Berosik’s comments became more sexually graphic.

¶8 On his trips with B.W., Berosik would talk to her about prostitutes, inquire into her

sexual activity, and promote pornography, specifically books dealing with family members

having sex.

¶9 When she was 14, B.W. incurred a telephone bill of $400. Berosik told B.W. she

could help pay off her debt ifshe gave himoral sex. B.W. did not respond. When B.W. was

15, Berosik took her to Disneyland. During this trip, Berosik bought B.W. a vibrator and a

pair of fuzzy handcuffs.

¶10 R.W.started riding with Berosik in histruck when she was 10. During trips he spoke

to her about sex and promoted pornography. One time, Berosik attempted to grab R.W.’s

breast. When R.W. was 12,she told Berosik she was curiousto see how a man masturbated.

Berosik masturbated in front of her. During later trips, Berosik gave R.W. incest

pornography. On a trip to Disneyland, R.W. and Berosik stopped at a convenience store

where Berosik asked R.W. to get a prostitute for him. She did as she was asked and then

went into the store. When she returned, Berosik asked her if she wanted a prostitute and

offered to pay for the service. R.W. declined.

¶11 Berosik bought R.W.several gifts. One was a tank top that Berosik told R.W. towear

without a bra. He also bought her a vibrator and a penis-shaped sucker. He later asked her if

she used the vibrator.
4

¶12 In March 2005 when she was 15, R.W. began dating a 26-year-old man named

Wesley. Berosik began asking her about sexual activity with her boyfriend. While Wanda

and Berosik were out of town, M.W. caught R.W. and Wesley together and told Berosik.

Berosik told R.W. to go to his brother’s house until he returned. When he picked R.W. up at

his brother’s, he told her he would not tell Wanda about Wesley but in return, R.W. would

have to “do [him] a favor.” R.W. testified at trial that she understood this to mean sexual

favors because Berosik had requested them before. Berosik told R.W. that to prove she

would adhere to the deal, she must take off her shirt and bra. R.W. initially told him no.

Berosik then told R.W. that Wesley would have to go to jail if Wanda found out because

R.W. was under 16 years old and Wanda would call the police. R.W. took off her shirt and

Berosik fondled her breasts. Later that day, Berosik asked R.W. to perform oral sex on him.

She said no. Berosik reminded her that Wesley could go to jail. Berosik then masturbated

and had R.W. perform oral sex on him. Eventually, R.W. told her mother about Berosik’s

actions. Her mother told her that she would tell the police but would wait because she

needed Berosik’s paycheck.

¶13 In March 2005, when B.W. was 16, Berosik caught hersneaking out ofthe house to

see her boyfriend. Berosik told B.W. to take off her shirt and bra or he would take the keys

to her car. B.W. did as told, leaving her sweater on. Berosik fondled her breasts. Later,

Berosik asked B.W. if she ever performed oral sex. She said yes and put Berosik’s penis in

her mouth. A couple of nightslater, Berosik went into B.W.’sroomand fondled her breasts.

The next day, Berosik told B.W. that while her mother was away, he wanted to “jump
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[B.W.’s] bones.” B.W. went with her mother to run errands to avoid Berosik. When she

returned, Berosik took her car away.

¶14 When Wanda told B.W. about Berosik’s actions with R.W., B.W. revealed Berosik’s

sexual contacts with her. Eventually, Wanda told the police Berosik had sexually assaulted

her daughters. She also told the police she had searched their home where she found sex

toys and books about incest in B.W. and R.W.’s bedrooms. She boxed up these items and

put them in storage. The police told Wanda to bring the box to the sheriff’s office. Before

she brought the items from the storage shed to the sheriff’s department, she searched

Berosik’s truck and the house again, and found more sexually explicit materials. She

delivered all of these items to law enforcement.

¶15 In June 2005, the State filed an information chargingBerosik with sexual intercourse

without consent. The information waslater amended to charge three counts ofincest. Count

I alleged Berosik had oral sex with B.W. Count II alleged he had oral sex with R.W. The

offenses were alleged to have occurred in March 2005. Count III was severed and is not a

part of this appeal.

¶16 The affidavit in support ofthe information contained the statements provided byR.W.

and B.W. concerning the bargainsBerosik had made with themabout the alleged incest(that

he would turn in R.W.’s boyfriend and take away B.W.’s car if they did not have oral sex

with him) and the resulting sexual acts.

¶17 The charges against Berosik were first tried in June 2006. The trial resulted in a hung

jury. A second trial was scheduled. Before the second trial, the State filed notice of its
6

intent to introduce other acts evidence pursuant to M. R. Evid. 404(b) and/or the transaction

rule. The State gave notice that it would seek to introduce into evidence the incest

pornography books, fuzzy handcuffs, and vibrators. The State also proposed to introduce the

testimony ofR.W. and B.W. concerning the priorsexual contacts and suggestive comments

Berosik made to them. The State asserted this evidence was a part of the incest transactions

as it proved that Berosik was grooming the girls so as to make it easier for him to later

sexually assault them. The State also proposed to introduce expert testimony to assist the

jury in understanding the concept of grooming, which the State avers is grounded in sound

research.

¶18 Berosik moved in limine to exclude the physical and testimonial evidence of

grooming as inadmissible character evidence because the acts were remote in time and did

not fall within the exceptions of M. R. Evid. 404(b). He also moved to exclude the expert

testimony, claiming the expert was not qualified.

¶19 Berosik also filed a motion to suppress the evidence gathered by his wife Wanda.

Berosik argues that Wanda acted as an agent of the State when she searched his home and,

because the police failed to obtain a search warrant, the items were illegally seized.

¶20 The District Court denied all of Berosik’s motions to exclude evidence.

¶21 A second jury trial was held in March 2007. The District Court determined it would

conduct individual voir dire of venirepersons who had personal experience with child or

sexual abuse. Berosik claims on appeal he was excluded from the individual voir dire

conducted in the judge’s chambers.
7

¶22 During the trial, before ruling on Berosik’s motion to exclude grooming evidence,the

court heard the testimony of the State’s proposed child abuse specialist outside the presence

of the jury. After hearing the witness’s testimony, the District Court either admitted or

excluded each part of the proposed prior acts evidence listed in the State’s notification. The

District Court based its decisions on whether the evidence went to show grooming,which the

court considered asincluded as part ofthe transaction ofthe charged incest, or whether it fit

under an exception to M. R. Evid. 404(b). In a few instances, the District Court concluded

the evidence was admissible under both rules.

¶23 The District Court allowed testimony regarding Berosik’s prior comments about

prostitutes; Berosik masturbating in front of R.W. in 2001; Berosik’s discussions about

puberty, the girls’ bodies, their sexual activity, pornography and sex; his distribution of

pornography; Berosik’s proposition in 2003 that B.W. perform oral sex to pay off her debt

for the phone bill; Berosik’s statements that he would like to “make love to” R.W. and that

B.W. was to “jump [his] bones”; Berosik fondlingB.W. and R.W.; Berosik’s mandate that

the doorsto R.W. and B.W.’s bedrooms not be locked; and Berosik’srequest to Wanda that

their bedroomremain open while they had sexual intercourse while the girls were present in

the home.

¶24 The District Court ruled that the physical evidence—incest pornography books,fuzzy

handcuffs, and a vibrator—would not be admitted into evidence because it was too

prejudicial. However, the District Court ruled that the girls could testify about whattheygot,

what they saw, what they perceived, what their impression was, and how it affected them.
8

¶25 The State’s expert witnessthen testified before the jury on the general characteristics

of grooming a child for sexual abuse. As a part of her testimony, she stated she did not

express an opinion on Berosik’s or any witnesses’ credibility.

¶26 The jury found Berosik guilty of both counts of incest. The District Court sentenced

him as noted above, and he appeals.

STANDARDS OF REVIEW

¶27 Whether a district court has violated a criminal defendant’sright to be present at all

critical stages of the defendant’s trial is a constitutional matter, thus our review is plenary.

State v. Price, 2009 MT 129, ¶ 19, 350 Mont. 272, 207 P.3d 298.

¶28 Rulings regarding the admissibility of evidence are left to the sound discretion ofthe

trial court, and will not be overturned absent a showing of an abuse of discretion. State v.

Bar-Jonah, 2004 MT 344, ¶ 97, 324 Mont. 278, 102 P.3d 1229; State v. Ford, 278 Mont.

353, 361, 296 P.2d 245, 249-50. The abuse of discretion standard also appliesin reviewinga

trial court’s decision whether to admit evidence of other crimes, wrongs or acts. See State v.

Crosley, 2009 MT 126, ¶ 26, 350 Mont. 223, 206 P.3d 932; Bar-Jonah, ¶ 97; State v. Aakre,

2002 MT 101, ¶ 8, 309 Mont. 403, 46 P.3d 648 (concerning admission of evidence of other

acts of a defendant under M. R. Evid. 404(b)).

¶29 We review a district court’s denial of a motion to suppress to determine whether the

findings of fact are clearly erroneous, and whether the court correctly applied those factsas a

matter of law. State v. Hilgendorf, 2009 MT 158, ¶ 11, 350 Mont. 412, 208 P.3d 401.

DISCUSSION
9

¶30 Issue 1: Must the judgment be reversed because Berosik was excluded from

individual voir dire?

¶31 Berosik asserts on appeal that he was not present during the individual, in-chambers

voir dire. The record does not reflect whether Berosik was present when the court examined

potential jurors in chambers. The trial transcript shows that the district judge announced

individual voir dire would be held in chambers and then said, “We will meet with counsel in

[chambers] one at a time.” The minutes of the Clerk of Court do not indicate that Berosik

was present. The State offers nothing to rebut Berosik’s claimhe was not present during the

individual, in-chambers voir dire.

¶32 A defendant’s right to be present during all stages of a criminal prosecution is a

fundamental right guaranteed by the Montana and United StatesConstitutions. State v.Bird,

2001 MT 2, ¶¶ 23-24, 308 Mont. 75, 43 P.3d 266. A defendant has the right to be present

during critical stages of the proceeding and at all times during the trial when something is

done which affects hisright to a fair trial. State v. Reed, 65 Mont. 51, 56-57, 210 P. 756, 757

(1922). Conducting individual voir dire in chambers is a critical stage of the trial. Bird, ¶

28. Because errors involving jury selection affect the fairness of the trial, excluding a

defendant from in-chambers voir dire absent an express waiver on the record is structural

error, which requires reversal. Bird, ¶¶ 39-40.

¶33 The record does not show that Berosik was present during the in-chambers voir dire.

The parties do not dispute that Berosik did not waive his presence. Applicable precedent
10

instructs that Berosik’s exclusion from chambers during individual voir dire constituted

structural error. The conviction must be reversed and the case remanded for a new trial.

¶34 Issue 2: Did the District Court err in determining the child abuse expert was

qualified to give her opinion?

¶35 Berosik assertsthat the District Court erred in allowing the State’s child abuse expert

to testify because she did not have extensive first hand experience with sexually and nonsexually abused children, did not have a thorough and up-to-date knowledge of the

professional literature on child sexual abuse, and was not objective and neutral about this

case. See State v. Scheffelman, 250 Mont. 334, 342, 820 P.2d 1293, 1298 (1991); State v.

Riggs, 2005 MT 124, ¶ 27, 327 Mont. 196, 113 P.3d 281.

¶36 The record revealsthat the State’s expert is a licensed marriage and family counselor

with a Master’s degree and she has commenced a dissertation on disclosure of child sexual

abuse. She has extensive experience in working with those convicted of offenses involving

sexual aggression, providing sex offender treatment to both adults and juveniles, and

providing family and group counseling to those dealing with sex offenses as well as persons

dealing with non-sexual child abuse. She has conducted thousands of forensic interviews

and testified as an expert in several states, including Montana.

¶37 After examination of the record we conclude the District Court did not abuse its

discretion in allowing the expert to present her opinions to the jury.

¶38 Issue 3: Did the District Court err in admitting evidence of prior acts by Berosik?
11

¶39 The State’s expert witness described the characteristics of what constitutes the

grooming of potential child victims of sexual abuse. The District Court then allowed the

complaining witnesses, B.W., R.W., and others, to testify about prior acts ofBerosik, which

occurred over the course of the several years of his relationship with the victims. The

District Court ruled these prior acts were evidence that Berosik was grooming his intended

child victims, and thus were a part of the transactions the State sought to prove.

¶40 On appeal, Berosik contends the expert testimony on grooming was improperly

admitted as it is not relevant under M. R. Evid. 401, and is highly prejudicial profiling

evidence which should be excluded pursuant to M. R. Evid. 403.

¶41 In Montana, expert testimony explaining the complexities of child sexual abuse for

the purpose of assisting jurors in understanding and evaluating a child’s testimony is

admissible. State v. Morgan, 1998 MT 268, ¶ 29, 291 Mont. 347, 968 P.2d 1120; State v.

Donnelly, 244 Mont. 371, 378, 798 P.2d 89, 93 (1990), overruled on other grounds, State v.

Imlay, 249 Mont. 82, 91, 813 P.2d 979, 985.

¶42 The testimony ofthe State’s expert witness gave general information about grooming;

that is, the process of eroding a victim’s boundariesto physical touch and desensitizingthem

to sexual issues. Her testimony concerned a subject about which lay persons would have

little or no experience. She based her opinions on her experiences and research in the field.

The expert testimony is relevant in that it provided the jury with information about how

research and experience shows abuse of a child oftentimes does not occur all of a sudden. It

provided evidence that young victims sometimes delay in disclosing abuse, disclose the
12

abuse piecemeal, and described how they react to having been sexually abused. Berosik’s

defense was that Wanda and her daughters fabricated their allegations against him because

they wanted to be rid of him for taking away the daughters’ new-found freedomand because

he was going to expose consensual sex with a boyfriend, which would result in criminal

charges against him. In the face of this defense, a jury could conclude the evidence is

probative in judging the credibility of the State’s witnesses, including B.W. and R.W, and

the decision whether the charges had, or had not, been proven beyond a reasonable doubt.

¶43 In deciding the admissibility of evidence of other acts of a defendant, a district court

must weigh whether the evidence’s probative value issubstantially outweighed bythedanger

of unfair prejudice, confusion of the issues, misleading the jury, a waste of time, or is

needless presentation of cumulative evidence. M. R. Evid. 403; State v. Matt, 249 Mont.

136, 142, 814 P.2d 52, 56 (1991). The evidence in this case concerning whether Berosik

groomed B.W. and R.W. forsexual abuse, as well as whether Berosik committed the specific

acts of incest alleged, is not so prejudicial that it is unfair. He has the opportunity to rebut

such evidence. Nor is it confusing or misleading. The District Court did not abuse its

discretion in admitting such evidence under M. R. Evid. 403.

¶44 The State argues that the evidence of prior sexual activity between Berosik and his

stepdaughters, which occurred before the charged offenses, is part of the transaction of the

alleged incest, and can be properly admitted as a part of the transaction under § 26-1-103,

MCA.
13

¶45 Section 26-1-103, MCA, providesthat prior acts of an accused may be admissible asa

part of an alleged criminal transaction when those acts form part of the transaction which is

itself the fact in dispute, or if they are evidence of that fact. Generally, admissibility under

the transaction rule is predicated on the jury’s right to hear what happened prior to the

alleged offense, so that it may evaluate the evidence in the context in which the alleged

criminal act occurred. See State v. Derbyshire, 2009 MT 27, ¶ 29, 349 Mont. 114, 201 P.3d

811. To be admissible under the transaction rule, evidence must be explanatory of the

charged offense. Derbyshire, ¶ 36. Evidence of acts admitted under § 26-1-103, MCA, is

not character evidence excluded by M. R. Evid. 404(b). Likewise, such evidence is not

subject to the notice and other requirements of § 46-13-109, MCA, because the acts are

considered to be part of the transaction and not wholly independent of the alleged offense.

Crosley, ¶ 48.

¶46 The transaction rule must not be expanded to the point that the prohibition of

character evidence under M. R. Evid. 404(b) is swallowed. See Crosley, ¶ 67 (Nelson &

Cotter,JJ.,specially concurring). To this end, if evidence of prior acts is to be admitted as a

part ofthe alleged offense,such other acts ofthe accused are to be linked to, and explanatory

of, the charged offense. Crosley, ¶ 48 (citing State v. Lozon, 2004 MT 34, ¶ 12, 320 Mont.

26, 85 P.3d 753).

¶47 In this case, like in Crosley, the evidence ofBerosik’s sexually charged conversations,

transactions and contacts with his victims, as described in ¶ 22 and ¶ 23 above, were closely

linked to and explanatory ofthe charges. Berosik’s sexualization of hisstepdaughters began
14

shortly after he married their mother and continued up to the time the charged incest was

reported. Thus, evidence of Berosik’s escalating sexual acts with these children form a part

of the transactions in dispute and are admissible under § 26-1-103, MCA. See Crosley, ¶ 49.

¶48 Issue 4: Did the District Court err in denying Berosik’s motion to suppress the 

evidence gathered by Berosik’s wife?

¶49 Berosik contends that a sheriff’s deputy requested Wanda to bring in the items she

gathered in her home and Berosik’s truck, and thus,she acted as an agent ofthe State. As no

search warrant was issued, Berosik asserts the search of the home and truck and the seizure

of these items is illegal, thus evidence of their existence must be suppressed.

¶50 The exclusionary rule does not apply to private searches that do not involve state

action, asit does not serve to deter private individuals from engaging in searches that would

be illegal if conducted by law enforcement. State v. Malkuch, 2007 MT 60, ¶ 13, 336 Mont.

219, 154 P.3d 558 (citing State v. Long, 216 Mont. 65, 71, 700 P.2d 153, 157 (1985); State v.

Christensen, 244 Mont. 312, 319, 797 P.2d 893, 897 (1990)).

¶51 Wanda and her daughter had already seized the books and sex toys and removed them

from the home before they contacted law enforcement. And, though the sheriff’s deputy

requested that Wanda bring these items in, he did not ask her to seize more items from the

home, nor did he suggest to her that Berosik’s truck be searched. The District Court

correctly concluded that the actions ofWanda and her oldest daughter were private searches

neither requested nor agreed to by law enforcement, and therefore the evidence obtained is

not subject to the exclusionary rule. See Malkuch, ¶ 16.
15

CONCLUSION

¶52 The judgment ofthe District Court isreversed and remanded for a new trial conducted

in conformity with applicable law and this opinion.

/S/ JOHN WARNER

We Concur:

/S/ W. WILLIAM LEAPHART

/S/ BRIAN MORRIS

/S/ JIM RICE

Justice James C. Nelson, specially concurring.

¶53 I join the Court’s Opinion on Issues 1 and 2. In particular, as to Issue 1, I agree that

errors involving jury selection are structural errors which require automatic reversal.

Opinion, ¶ 32; State v. Matt, 2008 MT 444, ¶¶ 31-32, 40, 347 Mont. 530, 199 P.3d 244. But

I specially concur as to Issues 3 and 4. In addition, I note, as a preliminary matter, that the

Court’s statement of the standard of review is incorrect, or at least incomplete.

Standard of Review

¶54 The Court states that “[t]he abuse of discretion standard also applies in reviewing a 

trial court’s decision whether to admit evidence of other crimes, wrongs or acts” under 

M. R. Evid. 404(b). Opinion, ¶ 28; accord State v. Campa, 2009 MT 251, ¶ 15, ___ Mont. 

___, ___ P.3d ___. It istrue, and we have often stated, that a trial court’s evidentiary rulings

are reviewed for abuse of discretion. See e.g. State v. Crosley, 2009 MT 126, ¶ 26, 350

Mont. 223, 206 P.3d 932; State v. Herman, 2009 MT 101, ¶ 19, 350 Mont. 109, 204 P.3d
16

1254; State v. Clark, 2008 MT 419, ¶ 13, 347 Mont. 354, 198 P.3d 809; State v. Stearns, 

2008 MT 356, ¶ 13, 346 Mont. 348, 195 P.3d 794.

¶55 But there is no “discretion” in properly interpreting a statute or rule of evidence. See 

State v. Mizenko, 2006 MT 11, ¶ 8, 330 Mont. 299, 127 P.3d 458; Hagener v. Wallace, 2002 

MT 109, ¶ 12, 309 Mont. 473, 47 P.3d 847. The court’s interpretation is either correct or

incorrect. Cf. State v. Swann, 2007 MT 126, ¶ 19, 337 Mont. 326, 160 P.3d 511 (“There 

either is, or is not, sufficient evidence to convict, and the determination is not a matter of 

discretion.”). Indeed, it is beyond cavil that the interpretation of a statute or rule constitutes

a conclusion of law, which we review de novo. See State v. Dunning, 2008 MT 427, ¶ 22,

347 Mont. 443, 198 P.3d 828; State v. Triplett, 2008 MT 360, ¶ 13, 346 Mont. 383, 195 P.3d

819; Miller v. District Court, 2007 MT 149, ¶ 22, 337 Mont. 488, 162 P.3d 121;

Faulconbridge v. State, 2006 MT 198, ¶¶ 46-57, 333 Mont. 186, 142 P.3d 777; Mizenko, ¶ 8.

¶56 Accordingly, we have stated—repeatedly—that to the extent a trial court’sevidentiary

ruling is based on the interpretation of a statute or rule, our review is de novo. See State v. 

Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811; State v. Mackrill, 2008 MT 

297, ¶ 37, 345 Mont. 469, 191 P.3d 451; State v. Bomar, 2008 MT 91, ¶ 14, 342 Mont. 281,

182 P.3d 47; State v. Gittens, 2008 MT 55, ¶ 10, 341 Mont. 450, 178 P.3d 91; State v. 

McOmber, 2007 MT 340, ¶ 10, 340 Mont. 262, 173 P.3d 690; State v. Skinner, 2007 MT 

175, ¶ 15, 338 Mont. 197, 163 P.3d 399; In re T.W., 2006 MT 153, ¶ 8, 332 Mont. 454, 139

P.3d 810; State v. Price, 2006 MT 79, ¶ 17, 331 Mont. 502, 134 P.3d 45; State v. Incashola, 

1998 MT 184, ¶ 9, 289 Mont. 399, 961 P.2d 745.
17

¶57 Here, the evidentiary rulings at issue were based on the trial court’s interpretation of 

§ 26-1-103, MCA, and M. R. Evid. 404(b); i.e., they were based on conclusions oflaw. Our

review of those rulings, therefore, is plenary. Bomar, ¶ 14.

Issue 3

¶58 With respect to Issue 3, I completely agree with the Court that the transaction rule

1

“must not be expanded to the point that the prohibition of character evidence under

M. R. Evid. 404(b) is swallowed.” Opinion, ¶ 46. I believe that here, however, Berosik’s

prior acts (e.g., the sexually charged conversations and contacts with his stepdaughters)

during the years preceding the charged offenses do not “form[ ] part of a transaction which is

itself the fact in dispute.” Section 26-1-103, MCA. The “transaction which is itself the fact

in dispute” is whether Berosik had sexual intercourse with B.W. and R.W. in March 2005.

Section 45-5-507(1), MCA (defining incest). None of those earlier events form part of this

alleged transaction.

¶59 Likewise, evidence of Berosik’s prior acts is not “evidence of [the fact in dispute].”

Section 26-1-103, MCA. Berosik could be guilty of having sexual intercourse with his

stepdaughters in March 2005 irrespective of whether he committed the prior acts. In other

words, the priorsexually charged conversations and contacts with hisstepdaughtersare in no

way “ ‘inextricably linked to’ ” the question of whether he had sexual intercourse with the

1

“Where the declaration, act, or omission forms part of a transaction which is itself

the fact in dispute or evidence of that fact, such declaration, act, or omission is evidence as

part of the transaction.” Section 26-1-103, MCA.
18

girls in March 2005.2 Crosley, ¶ 48 (quoting State v. Lozon, 2004 MT 34, ¶ 12, 320 Mont. 

26, 85 P.3d 753).

¶60 For these reasons, I cannot agree with the Court’s reliance on the transaction rule, and 

I fear that we are again reading § 26-1-103, MCA, more broadly than its language allows,

contrary to the first maxim of statutory interpretation: “In the construction of a statute, the 

office of the judge is simply to ascertain and declare what is in terms or in substance 

contained therein, not to insert what has been omitted or to omit what has been inserted.”

Section 1-2-101, MCA. The State did not charge a continuing course of conduct. It charged

two specific instances of conduct alleged to have occurred in March 2005. Berosik’s

sexually charged conversations and contacts with hisstepdaughters at other times and places

simply do not “form[ ] part of” the instances of sexual contact in March 2005. Section

26-1-103, MCA. The maverick Pac-Man has blipped to yet another case. Crosley, ¶ 67 

(Nelson & Cotter, JJ., specially concurring).

¶61 This is not to say that evidence of Berosik’s prior acts is per se irrelevant or 

inadmissible. To the contrary, I believe that the evidence of “grooming” proffered by the

State in this case was probative of his guilt. But for the reasonsstated above, I must disagree

2

The Court omits the critical qualifier “inextricably” and inserts a new qualifier: 

“closely.” See Opinion, ¶¶ 46, 47 (“[T]he evidence of Berosik’s [prior acts] . . . were closely 

linked to and explanatory ofthe charges.”). Yet, while our transaction-rule jurisprudence is

far froma model of clarity, we have at least been consistent in requiring that the evidence be 

“inextricably” or “inseparably” linked to the charged offense, not merely “closely” linked.

See Derbyshire, ¶¶ 31-32; see also Crosley, ¶ 71 (Nelson & Cotter,JJ.,speciallyconcurring),

and cases cited therein.
19

with the Court that such evidence is admissible because it “forms part of a transaction which 

is itself the fact in dispute or evidence of that fact.” Section 26-1-103, MCA.

¶62 In its Notice of Intent to Introduce Other Acts Evidence Pursuant to M. R. Evid. 

404(b) and/or the “Transaction Rule,” the State argued a “complete the story” rationale for 

admitting the evidence of Berosik’s prior acts under the transaction rule. Yet, a “complete 

the story” or “explain the circumstances” definition of the transaction rule threatens to

override M. R. Evid. 404(b).

A defendant’s bad act may be only tangentially related to the charged crime, 

but it nevertheless could “complete the story” or “incidentally involve” the 

charged offense or “explain the circumstances.” If the prosecution’s evidence 

did not “explain” or “incidentally involve” the charged crime, it is difficult to

see how it could passthe minimal requirement for admissibility that evidence

be relevant. . . . [A]ll relevant prosecution evidence explains the crime or

completes the story. The fact that omitting some evidence would render a

story slightly less complete cannot justify circumventing Rule 404(b) 

altogether. Moreover, evidence necessary to complete a story—for instance 

by furnishing a motive or establishing identity—typically has a non-propensity

purpose and is admissible under Rule 404(b). We see no reason to relieve the

government and the district court from the obligation of selecting from the

myriad of non-propensity purposes available to complete most any story.

United States v. Bowie, 232 F.3d 923, 928-29 (D.C. Cir. 2000) (paragraph break omitted).

¶63 In my view, therefore, the correct approach is to analyze the admissibility of the 

evidence of Berosik’s prior acts pursuant to Rule 404(b), which the prosecutor did as an

alternative ground for introducing the evidence. In thisregard, while I do not conduct here a

comprehensive analysis under Rule 404(b), I tend to agree with the prosecutor’s argument 

that the evidence of Berosik’s grooming of his stepdaughters may constitute “preparation”

under Rule 404(b).
20

Issue 4

¶64 I concur in the result of Issue 4 based on the caselaw cited in ¶ 50 and the facts 

discussed in ¶ 51. Importantly, Berosik has failed to present a persuasive argument on 

appeal that Wanda lacked authority to search for and seize evidence from Berosik’s truck. 

Moreover, Berosik has no standing to prevent Wanda from seizing and turning over to law 

enforcement the various sex toys and “gifts” which he gave to the girls. Those items

belonged to themand were no longer his. See State v. 1993 Chevrolet Pickup, 2005 MT 180, 

¶¶ 14-17, 328 Mont. 10, 116 P.3d 800 (once a person voluntarily relinquishes orintentionally

abandons his property, his expectation of privacy in that property is abandoned as well).

Finally, Berosik failsto argue effectively that private searches violate Article II, Sections 10

and 11 of the Montana Constitution and, therefore, that the exclusionary should apply.

¶65 On the foregoing basis, I concur.

/S/ JAMES C. NELSON