NO. 93-574 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

BETH ANN BRISTOW, 

Defendant and Appellant. 

OCT 2 0 1994 

CLERK OF SUPREME COUH'I 

STATE OF MONTANA 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Ted 0. Lympus, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Chris Christensen, Conrad, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General; Carol 

Schmidt, Assistant Attorney General, Helena, Montana 

Thomas J. Esch, County Attorney, Kalispell, Montana 

Filed: 

Submitted on Briefs: July 13, 1994 

Decided: October 20, 1994 
Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

Defendant Beth Ann Bristow appeals from a jury verdict of the 

Eleventh Judicial District Court, Flathead County, finding her 

guilty of accountability for aggravated kidnapping, and a judgment 

sentencing her to 30 years in the Women's Correctional Facility and 

designating her a dangerous offender for the purposes of parole 

eligibility. 

We reverse. 

Defendant raises the following issues: 

1. Did the District Court err in permitting the State to 

inquire into the criminal history of defendant's witness? 

2. Did the District Court err in admitting into evidence and 

permitting the jury to view color photographs of the victim's 

injuries? 

3. Was there sufficient corroboration of the accomplices' 

testimony? 

Defendant and Tom Boesch had been common-law married since 

1987. The marriage produced two children, Bruce and Ryan. In 

February 1992, Boesch filed a petition for dissolution after 

defendant decided to move with the children from the Kalispell area 

to Battle Mountain, Nevada, to be near Rick Crosthwaite. Both 

parties filed petitions for temporary custody of the two children. 

Boesch was eventually awarded temporary custody of the children. 

Following the custody hearing, defendant returned to Nevada and 

began spending time with Dwayne Todd Cannady and Rick Smith, 

friends of Crosthwaite. Cannady testified that defendant offered 
him money to beat up Boesch, Cannady, Smith, and defendant drove 

from Battle Mountain, Nevada, to Reno, Nevada, so that Cannady and 

smith could rent a car, Thereafter, defendant drove back to Battle 

~ountain. Cannady and Smith drove to Boeschls home in Whitefish 

and attempted, unsuccessfully, to gain entry. 

The next day, Cannady and Smith returned disguised as Easter 

bunnies bearing candy and baskets, Boesch opened the door and was 

attacked by the pair who used their fists, a hammer, and a padlock 

tied to a bandanna. The children were locked in a bedroom while 

Boesch was left tied up in another bedroom. Approximately two 

hours later, Cannady telephoned an ambulance for Boesch. Cannady 

and Smith pled guilty to the offense of aggravated assault for 

their part in beating Boesch. 

Defendant was charged with accountability for aggravated 

kidnapping. While in chambers, defendant objected to the State's 

attempt to introduce into evidence color photographs of Boesch's 

injuries. The court allowed the photographs. Following the 

State's case-in-chief, defendant moved to dismiss due to lack of 

corroborative evidence to support the testimony of Smith and 

Cannady. The court denied the motion. Over defendant's objection, 

the State cross-examined defense witness Crosthwaite as to his 

prior criminal history. Defendant moved for a mistrial; the court 

denied the motion, 

A jury found defendant guilty of accountability for aggravated 

kidnapping, and the court sentenced her to 30 years in the Women's 

Correctional Facility, designating her a dangerous offender for the 
purposes of parole eligibility. 

Defendant appeals. 

ISSUE 1 

Did the District Court err in permitting the State to inquire 

into the criminal history of defendant's witness? 

Our standard of review relating to rulings on the 

admissibility of evidence is whether the trial court abused its 

discretion in allowing the evidence. State v. Wing (1994), 264 

Mont. 215, 870 P.2d 1368; State v. Stewart (1992), 253 Mont. 475, 

833 P.2d 1085: Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 

470, 803 P.2d 601. 

Defendant was charged with aggravated kidnapping by 

accountability pursuantto 55 45-2-302 and 45-5-303, MCA. In order 

to convict defendant under 5 45-2-302, MCA, the State had the 

burden of proving that she promoted or facilitated the aggravated 

kidnapping of Boesch by soliciting, aiding, or abetting Cannady and 

Smith. To that end, the State relied heavily on the testimony of 

Cannady and Smith. In response, the defense relied heavily on the 

testimony of Crosthwaite to rebut the testimony of Cannady and 

Smith. 

Prior to being questioned about his criminal past, Crosthwaite 

gave substantial testimony in defendant's behalf. Crosthwaite 

testified that he never heard defendant wish that Boesch would be 

crippled or paralyzed. He testified that he had nothing to do with 

the beating, and that he also believed defendant had nothing to do 

with the beating. Crosthwaite testified that he never gave Cannady 
money to beat Boesch. He testified as to Cannady's reputation in 

the community for violence and dishonesty. Crosthwaite denied 

furnishing Cannady and Smith with the money to rent a car and to 

finance their trip to Montana. Crosthwaite testified that it was 

contrary to defendant's character to hire someone to beat Boesch so 

that she could regain custody of the children. 

The State concluded its cross-examination of Crosthwaite with 

the following: 

BY MR. ESCH (for the State): 

Q: Mr. Cannady ever blow up somebody's pickup truck? 

A: No, sir. 

Q: Do you know somebody who has? 

A: Yes, sir. 

MR. CHRISTENSEN (for defendant): Objection, Your honor. 

That is not relevant. 

THE COURT: Overruled. 

BY MR. ESCH: 

Q: Do you know somebody who has? 

A: Yes, sir. 

Q: Who? 

MR. CHRISTENSEN: Objection, Your Honor. Continuing 

objection. It is not relevant. 

THE COURT: Okay. Overruled. 

BY MR. ESCH: 

Tell the jury who blew up somebody's pickup truck 

in 1986? 

I did, sir. 

For revenge? 

No, sir. 

Why did you do it? 

It was accidental. 

You were convicted of blowing up somebody's pickup 

truck? 

Yes, sir. 
BY MR. ESCH: I don't have any other questions. 

Defendant argues that by allowing testimony about 

Crosthwaite's criminal past, the court deprived her of a fair 

trial. 

Evidence of Crosthwaite's criminal history was offered to 

impeach his credibility as a defense witness. That evidence should 

have been excluded pursuant to Rule 609, M.R.Evid., which provides 

that "[flor the purpose of attacking the credibility of a witness, 

evidence that the witness has been convicted of a crime is not 

admissible." The rationale behind Montana's statutory prohibition 

against inquiry into criminal history for impeachment purposes is 

that impeachment by evidence of conviction of a crime has low 

probative value in relation to credibility. Sloan v. State (1989), 

236 Mont. 100, 104, 768 P.2d 1365, 1367. This rule also avoids the 

highly prejudicial effect on a jury that is inherent in this type 

of evidence. Sloan, 768 P.2d at 1367. There is a strong 

possibility that a jury, hearing that a witness is a convicted 

criminal, will immediately discredit the testimony of that witness. 

Sloan, 768 P.2d at 1368. 

However, the prohibition of Rule 609 must be weighed against 

the prohibition of 5 46-20-701, MCA, which provides: 

(1) [N]o cause shall be reversed by reason of any error 

committed by the trial court against the appellant unless 

the record shows that the error was prejudicial. 

(2) Any error, defect, inequity, or variance which does 

not affect substantial rights shall be disregarded. 

The test this Court has adopted in determining whether the 

prejudicial error requires a reversal is whether there is a 
reasonable possibility that the inadmissible evidence might have 

contributed to the conviction. State v. Bower (1992) , 254 Mont. 1, 

6, 893 P.2d 1106, 1109; ~rodniak v. State (l989), 239 Mont. 110, 

114, 779 P.2d 71, 73; State v. Brush (1987), 228 Mont. 247, 252, 

741 P.2d 1333, 1336. When assessing the prejudicial effect of an 

error, we examine the totality of the circumstances in which the 

error occurred. Brodniak, 779 P.2d at 74. 

The State argues that the introduction of such evidence was 

harmless error that neither prejudiced defendant nor contributed to 

her conviction. We disagree. There is a strong possibility that 

the jury dismissed Crosthwaite's testimony upon learning of his 

criminal conviction, despite the low probative value of that 

information in relation to his credibility. Given the importance 

of Crosthwaite's testimony to the defense, there is a reasonable 

possibility that the inherently prejudicial and inadmissible 

evidence of his criminal history might have contributed to 

defendant's conviction. 

The record fails to disclose any appropriate reason for the 

State's inquiry as to the prior criminal conduct of Crosthwaite. 

We conclude that the prosecution's inquiry was improper under 

Rule 609, M.R.Evid., and prejudicial under S 46-20-701, MCA. 

We hold that the District Court abused its discretion in 

permitting the State to inquire into the criminal history of 

defendant's witness. 

ISSUE 2 

Did the District Court err in admitting into evidence and 
permitting the jury to view color photographs of the victim's 

injuries? 

As with Issue 1, our standard of review on the admissibility 

of evidence is whether the trial court abused its discretion. 

Winq, 870 P.2d at 1372; Stewart, 833 P.2d at 1087; Steer, 803 P.2d 

at 603. 

The State submitted, and the court admitted into evidence, 

four enlarged color photographs showing the severe injuries to 

Boesch's face, legs, and back. Defendant argues that the 

photographs were offered to arouse the sympathy of the jury, rather 

than to show any material facts. As a result, defendant argues, 

the photographs should have been excluded. 

Photographs are admissible if they are relevant to describe a 

person, place, or thing in the case. State v. Johnson (1986), 221 

Mont. 503, 515, 719 P.2d 1248, 1256; Fulton v. Chouteau County 

Farmers' Co. (1934), 98 Mont. 48, 54, 37 P.2d 1025, 1028. However, 

otherwise relevant photographs are not admissible if their 

probative value is outweighed by prejudice to the defendant. Rule 

403, M.R.Evid.; State v. Mayes (1992), 251 Mont. 358, 371, 825 P.2d 

1196, 1205; State v. Henry (1990), 241 Mont. 524, 531, 788 P.2d 

316, 320. The balancing of probative value against unfair 

prejudice is a matter within the discretion of the trial court, and 

a ruling on the admissibility of photographs will not be disturbed 

on appeal absent abuse of discretion. Maves, 825 P.2d at 1205; 

State v. Devlin (1991), 251 Mont. 278, 283, 825 P.2d 185, 188; 

State v. Austad (1982), 197 Mont. 70, 83, 641 P.2d 1373, 1380. 
Defendant was charged with accountability for aggravated 

kidnapping. while the State had the burden of proving that the 

victim suffered bodily injury under 5 45-5-303 (1) (c) , MCA, the 

record shows that bodily injury was not in dispute. Cannady and 

Smith, as witnesses for the State, testified as to the bodily 

injury they had inflicted on Boesch. Both testified that they had 

been convicted of aggravated assault as a result of the bodily 

injury they inflicted on the victim. Boesch testified for the 

State as to the nature and extent of his injuries. 

What was in dispute was whether, pursuant to 8 45-2-302, MCA, 

defendant promoted or facilitated the commission of the aggravated 

kidnapping by soliciting, aiding, or abetting Cannady and Smith. 

Because bodily injury was not in dispute, the photographs were of 

little or no probative value in establishing accountability for 

aggravated kidnapping. In the absence of probative value, the 

photographs were irrelevant to the State's case, and therefore, 

could only serve to inflame the jury against the defendant. We 

conclude that the probative value of the photographs was far 

outweighed by their prejudicial effect on the jury to the detriment 

of defendant. 

We hold that the District Court erred in admitting into 

evidence, and permitting the jury to view, color photographs of the 

victim's injuries. 
ISSUE 3 

Was there sufficient corroboration of the accomplices' 

testimony? 

Because we have found reversible error on the evidence 

concerning inquiry into the criminal past of a defense witness and 

the admissibility of photographs, we decline to discuss further 

evidence of sufficient corroboration. 

We reverse and remand for a new trial. 

We concur: 
October 20, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

Chris Christensen 

Attorney at Law 

315 South Main 

Conrad, MT 59425 

HON. JOSEPH P. MAZUREK, Attorney General 

Carol Schmidt, Assistant 

Justice Bldg. 

Helena, MT 59620 

Thomas J. Esch 

Flathead County Attorney 

P.O. Box 1516 

Kalispell, MT 59903-1516 

ED SMITH 

CLERK OF THE SUPREME COURT 

ST.4TE OF MONTANA 

Deputy 

BY: ov: *-