DA 11
- 0254 IN THE SUPREME COURT OF THE STATE OF MONTANA

2012 MT 317 STATE OF MONTANA, Plaintiff and Appellee, v. BENNY ROE STEWART, Defendant and Appellant.
APPEAL FROM: District Court o f the Second Judicial District,

In and For the County of Butte
- Silver Bow, Cause No. DC
- 09
- 194 Honorable Brad Newman, Presiding Judge COUNSEL OF RECORD:

For Appellant: Colin M. Stephens , Smith & Stephens, P.C., Missoula, Montana For Appellee: Steve Bullock, Montana Attorney General, Matthew T
. Cochenour , Assistant Attorney General, Helena, M ontana Eileen Joyce, Butte
- Silver Bow County Attorney, Samm Cox, Kelli Fivey, Deputy County Attorneys, Butte, Montana Submitted on Briefs: July 18, 2012 Decided: December 27, 2012 Filed:

__________________________________________ Clerk December 27 20122

Justice James C. Nelson delivered the Opinion of the Court. ¶1 A jury in the Second Judicial District Court, Silver Bow County, convicted Benny Roe Stewart of one c ount of incest. Stewart now appeals, seeking to havehis conviction rev ersed and vacated and the case remanded for a new trial. Stewart raisesthe following issues on appeal: 1. Whether

Stewart is entitled to a new trial due to law enforcement’s warrantl ess monitoring and recording of his telephone conversations with his daughter. 2. Whether

the District Court abuse dits discretion in admitting sexually oriented photographs whi ch Stewart took of his daughter. We affirm. **BACKGROUND The Sexual Abuse** **and R eporting**  ¶2 The jury convicted Stewart of sexually molesting his daughter, A.S., over a period of 11 years, from 1998 to 2009. A.S. testified at trial concerning the abuse. She stated that the sexual contact began when she was 7 years old and continued thro ugh her high school years . She could not remember each individual contact “because there’s so many they run together.” When A.S. was younger, Stewart would touch and fondle her vagina with his fingers. As A.S. grew older, Stewart also touched her butt oc ksand fondled her breasts. Stewart would have A.S. masturbate in front of him, and he would touch her while she was doing this
. Stewart performed oral sex on A.S. and forced her to perform oral sex on him. When A.S. was 9 years old, Stewart inserted hi s penis partway into her vagina. During her teenage years, the sexual contacts between Stewart and A.S. occurred “ev ery other day.” Stewart told A.S. that she was sexy and that he wanted her to be his3

own. A.S. testified that Stewart treated her more ash is “lover” than as hisd aughter. Stewart told A.S. that the ir s exual activities were “okay” and “normal ” and that other fathers d idthese sorts of things with their daughters. If A.S. resisted , Stewart use dg uilt, coercion (e.g., refusing to allow her to spend timewith friends), and other manipulation (e.g., shunning and refusing to speak to her) to get A.S. to have sex with him. ¶3 Stewart took photographs of A.S. in varying states of undress and in sexually provocative poses thath e orchestrated
. This began around age 15. S tewart had A.S. dress in different outfits, including a bikini, so me lingerie, and a flight attendant costume. One set of photographs, approximately 90 in number , wastaken in a h otel room in Salt Lake City on A.S.’s 18th birthday. This collection includes pictureso f A.S. nude and close
- upsof her va gina. ¶4 When A.S. turned 18, she joined the Army National Guard. A.S. initially reported the sexual molestationto her drill sergeant . She later met with Lieutenant Ed Lester, a d etective with the Butte
- Silver Bow Law Enforcement Department
. She provided Lester with various details: that the abuse had been ongoing for the previous 11 years ; that it consisted of fondling, ma sturbation, oral sex , digital penetration, and penile penetrati on; and that Stewart had taken nude and sexually provocative photographs of her
. A.S. stated that the photographs could be found on computers at the family residence. In addition, she advised Lester that her parents had purchased some sex toys for her, w hich could be found in her bedroom at the residence. ¶5 Detective Lester obtained a search warrant for the Stewart residence to seizethe computers and the sex toys. During the search, Lester spoke withJ .S. (A.S.’s older4

brother) , w

ho thereafter came to thep olice station and ga ve a statement corroborating A.S.’s complaint. After seizing the computers, Lester obtained a warrant to search the internal data on the computers. **The Pretext Calls** ¶6 At the time A.S. reported the sexual abuse to law enforcement, Stewart and his wife, Angelina, were out of town . D etective Lester thus spoke with A.S. about making
some “pretext phone calls” to Stewart ’s cell phone. L ester explained at trial that “ [a] pretext call is a tool we use in investigation. Sometimes when we’vebeen able to speak to the victim and sometimes witnesses, and so metimes we hav e the victim call the suspect and we record that phone call serendipitously [sic] so the suspect does not know he’ s being recorded and
-- in hopes of obtaining more information. ” A.S. agreed to make the calls. Due to the Caller IDo n Stewart’s cell phone , Lester went to the Stewart residence and connected his listening and recording equipment to the landline there. Lester then had A.S. make the calls from that location , rather t han from her cell phone
. Lester did not obtain a search warrant to surreptitiously monitor and record the conversations between A.S. and Stewart
. ¶7 The calls took place November 6, 2009. There were four in total, threef rom A.S. to Stewart and one from S tewart to A.S., which are summarized below
. At the time, Stewart and Ang

elina were in transit ( driving ) from Wyoming, where Stewart had been searching for a job, back to their residence in Butte
. ¶8 A.S. commenced the first call, which lasted 17 minutes and 30 seconds. Angelina answered the phone and then handed it to Stewart. At the outset, A.S. confronted Stewart5

about restrictions he had imposed on her personal life and about recent threats he had made to “rape” her and throw her out of the house
. She t hen g ot into the sexual abuse and asserted that she was not going to be his “ little play toy” anymore. Stewartwas seemingly caught off guard . He statedthat he ha d“no clue what brought all this up.” H e did not expressly acknowledge A.S.’s references t o the molestation , but he did not refute them either
. Many of h is responses were vagueand evasive

—apparently, as A.S. opine d , because Angelina was present . A.S. askedStewart why he continuedto demand “ sexual fa vors ”f rom her after having toldher that he would stop. Stewart respond ed, “ Okay, uh , that’s a done deal.”A .S. questioned his sincerity, however, and pressed on with the discussion of theabuse
. F inally , after several minutes of this, Stewart, sounding quite frustrated, ga ve her an ultimatum : either “ shut up and leave me alone” or “you’re out of there.” Hestated that if A.S. wanted to stay at the house, she neededto “be reasonable, respectful, and mindful
. ” When A. S. asked whether he would promise to quit “ the sexual stuff , ” Stewart repl ied , “Uh , you and I will discuss that, uh , at a later date.” ¶9 Stewart ended the first call because he was stopping at a ga s station. H e called A.S. back for the second call, which lasted roughly 26 minutes and 30 seconds. Angelina was outside the vehicle during the first several minutes of this call, but it seems that she and Stewart resumed their drive to Butte at some point during the call
. At the outset, A.S. reiterated that she was “tired of the sexual fa vors” because “it’s my body, it’s not your body .” S tewart stated, “ Okay. A re you tired of it? ” and A .S. replied, “ Yes. ” Stewart then stated, “ Okay, it’s done. I t’s that simple. ” The conversation turned briefly to a discussion of how A.S. felt that Stewart was trying to “ control ” every facet of her6

life

— personal and financial decisions in particular
. A.S. then brought the conv ersation back to the abuse
. S he asked S tewart to explain why he had molestedher. She stated that she did not enjoy it when he “went down on” her . She said she felt that hehad taken something from her by forcing her to hav e sex with him. Stewart remained evasive and observed that A.S. was behaving oddly: “This is not you.” Heagain threatened to throw her out of the house if she did not have “a smile and a different frame of mind” whenhe got home. A.S. persisted , however, and repeatedly asked Stewart to promise not to touch her anymore—to the point that Stewart became audibly upset and stated that if sh e pushed the matter any further , her life would be “ going straight t o hell
. ” Hedid not deny the abuse; he simply stated that he had already given an answer to her question and did not want to discuss the matter any further. A.S., nevertheless , insisted thatStewart should reveal the abuse to Angelina , to which Stewart f inally replied , “ When I get home, ev erything that we talked about will be totally out in the open and talked about, and you’ re done, you’re out of our lives.” ¶10 It appears the second call either was dropped due to bad reception or that Stewart hung up . A .S. c alled him back and ended up leaving a short voicemail messag e . S he apologized that the conversation had “ gotten out of hand ” and asked him to call her. ¶11 Sometime later, A.S. called Stewart again for the f ourth and final pretext call, which lasted about 1 6 minutes. Noting that A.S. had said she “wanted everything out in the open,” Stewart told her that he had been talking to Ang elinaand that “ Mom knows thatI , uh , went down on you the other day.” A.S. asked to speak with Angelina . When Angelina came onthe line, A.S. asked her what she thought about the things Stewart had7

doneto A.S
. In response, Angelina stated, “What have you done to him? You’ve done the same thing, over and over and over and over.
. . . You flaunt it out in front of him.” Angelina refused to accept that Stewart had forced A.S. to eng ag e in sex with him. Angelina statedthat Stewart had been merely “willing” to do so. Stewart then came back on the line. A .S. asked him whether he was af raid that she would tell someone . She impl ied that she might call the police. Stewart became angry with A.S.’s“ threats ” and
ev entually stated, “You can tell anybody you want to tell. I have no regrets with you. I have not done anything, uh , to you.” A.S. pointed out that Stewart had “violated ”her body, but he replied that she had touched him too . When A.S. stated that he had coerced her into having sex with him, Stewart asserted that she was “really screwed up.” A .S. then asked, “When I was little, like seven, it was my idea to have fun with you? ” Stewart responded, “Ye ah .” A.S. then brought up the photographs. Stewart admitted that he had taken nude pictures of her. But when A.S. accused him of molesting her and taking the photographsfor his own pleasure, Stewart challenged her to “ [p] rove it!” **Motion in Limine**  **to Exclude the Photographs** ¶12 The State charged Stewart with one count of incest, a felony, in violation of § 45
- 5 - 507, MCA. The State alleged that the sexual contacto ccurred as a continuing course of conduct between January 1998 and November 2009. The State notedthat it would be seeking a mandatory minimum sentence based onthe ag e difference between Stewart and A.S
. See§ 45
- 5 - 507 (4), (5), MCA. ¶13 The prosecution indicated before trial that it intended to introduce the photograph s of A.S., including those in which she was completely nude or in sexually explicit poses.8

Stewart filed a motion in limine to exclude this evidence
. He noted that his defense theory at trial would be “that his daughter is lying because she has a problem with Benny Stewart and her mother, Angie Stewart.” Stewart argued that the photo graph swere irrelevant because there was no ev idence of sexual contact when the photos were taken
. Alternative ly , he argued that even if relevant, thep hotographsshould be excluded because“ the prejudicial effect of these photos outweighs any probative value that they might have.” The District Court denied the motion. The court’s reasoning will be discussed under Issue 2 below. **Trial** ¶14 The case proceeded to trial, at which t ime A.S. testified about the years of sexual abuse she had endured from ag e7 until she was nearly 19 . She statedt hat Stewart had fondled her vagina “[a]s many times as I can count,” had performed oral sex on her about five times, had forced her to perfo rm oral sex on him about two times ( she refused to do
so on other occasions ), and had inserted the head of his penis into her v agina one time. A.S. testifiedthat the sexual contact with Stewart became a “normal part” of her life. As part of her

nig htly routine, Stewart would have A.S. come into his bedroom and, while Angelina slept next to him, he would (as A.S. testified) “stick his fingers in my vagina before I went to bed so he can masturbate before he went to bed.” ¶15 J.S. (A.S.’s brother) also testifie d at trial. He described Stewart’s relationship with A.S. as “a mix between a lover and a father.” He stated that Stewart had told him fantasies about “ [h]ow he would like to romance [A.S.], how he would like to, given different circumstances, how he would like to bang her, [and] how
. . . he loved it when9

she was nude .” J.S. testified that it was common for Stewart and A.S. to lie together on fa mily mo vie nights and that it appeared (from what J.S. could see ) that Stewart often
ma ssage dA.S.’s breasts and crotch. J.S. statedthat Stewart had shown him photographs of A.S. topless or nude, as well as a photo of A.S. performing oral sex on Stewart when she was 13 or 14 years old. S tewart told J.S. that this was “a fa mily thing” and “not a thing to be ashamed of” because a lot of families do it, butthat J.S. nevertheless should “[k]eep your mouth shut .
. . and just keep it in between all of us.” ¶16 Angelina testified
. She statedtha t she had suspected “something was go ing o n” between Stewart and A.S. throug h the years , but wh en she questioned them about it, they denied it. A

ng elina acknowledged that at nig ht, before going to bed, A.S. would come into the bedroom and give her parents a hugand then lie next to Stewart, who generally slept naked. W

hen asked whether she did anything to protect A.S. in these situations, Angelina stated: “I would put my hands on his private, his
-- his penis. Sometimes it’s soft, sometimes it’s halfway hard.” Inregard to the pretext tele phone calls, Angelina stated that Stewart had admitted to her (between the second and fourth calls) that “he went down on [A.S.] ,” which Angelina took to mean “[w]ent down on her private.” Angelina testified that upon learning of this, she felt angry at both Stewart and A.S. She stated that she could now understand why A.S. “was mad all the time.” ¶17 Agent Jimmy Weg with the Montana Division of Criminal In vestigation testified reg arding his examination of the computers seized from Stewart’s residence. In addition to the photographs he found, We g discussed the Internet browsing history , which included sites such as “Daddy’s Whore.com” and “FirstDaddysLesson.com

–Tricky dads10

seduces their trusting daug hters.” Weg acknowledged, however , that he couldn ot identify who was operating the computer atthe times these sites were accessed. ¶18 Stewart testified in his defense. H e stated that he nev er had sexual contact with A.S. Hea sserted that A.S. had been a “difficult daughter.” He theorized that A.S. had fabricated the allegations out of “extreme ang er” toward him, Ang

elina, and J.S. Stewart posited that A.S. was upset with him for “my refusal to repair her car or produce the funds to repair her car, along with the date canceling, then the
-- for those reasons. It was not unusual for [A.S.] to fly into me and just say all kinds of things that didn’t make sense to anybody.”Stewart denied that he had visited the incest websites. He theorized that Ang elina, J.S., or A.S. must have done so out of their own “fascination with father and daughter sex.” Stewart characterized thephotographs of A.S. as “family photos ”

— like photos a mother would take of a small child in a bathtub. These included photosof Stewart lifting up A.S.’s dress and looking at her buttocks , and of A.S. licking her own breasts. Stewart admitted that he had taken sexually graphicphotos of A.S. on her 18th birthday , including close
- ups of her va gina, but he claimedthathe did so at her request and to please her. He assertedthat no incest had occurred. As for the pretext phone cal ls, Stewart testified that , in his opinion , h e did not admitt o any sexual contact with A.S. during those conversations. Although he had acknowledged“ touching” A.S. , Stewart statedthat he did not use the word “touch” to mean “sex.”Stewart likewise testified that when he toldAngelina that he “went down on” A.S., he did not mean oral sex . I nstead , he was referring to an incident when he and A.S. were on a trip to Alaskaand she apparently had a bad reaction from drinking too much coffee . According to Stewart, A.S.11

“went into a type of mental state or, I guess you would say, a type of seizure or fit,” and he used the term “went down on [A.S.] ” to describe this incident to Angelina. ¶19 Without objection, t he Stateplayed the recordings of the pretext teleph one callsto the jury
. The parties thereafter argued differing interpretations of the conversations
. In the prosecutor’s view, Stewart implicitly admitted the crime: “There’s a c omplete lack of denial when she’ s pressing him ov er and ov er about the sexu al favors and‘ you touched my body.’ And think about the lack of surprise. There i s no shock in his voice that he’ s being accused of touching his daug hter. That is completely absent from these phone calls .”Stewart, conversely , emphasized that he did make denials of A.S.’s allegations : The State relies upon these
. . . recorded telephone conversations
. . . as implicit admissions. Even in the
. . . recordings that they played, there were denials by Benny Stewart. “I haven’ t touched you. I haven’ t vio lated you. I haven’ t done this, that or whatever.” You can listen to the recordings, you can assess whether those are implicit admissions or not. They contend that he did not deny that these things happened. He expressly denied them toward the end. “ I didn’ t do anything. I didn’ t violate you. You touched me, I touched you.” Of course they touched each other. But not in the manner that the State contends. Not sexual contact. Stewart maintained that “[t]hey haven’t come up with any concrete evidenc e whatsoever of sexual contact between Benny Stewart and his daughter [A.S.], even the
-- even the recorded telephone conversations.” ¶20 The District Court instructed the jury that a person commits the offense of incest if he knowingly has sexual intercourse with or has sexual contact with a descendant. Apart from this instruction, t

he District Court directed the jury that, if it first determined beyond a reasonable doubt that Stewart had committed the offense of incest, then it had to decide

“ [ w] hether the D efendant’s victim was under the ag e of 16 and the defendant was 3 or12

more years older than the victim.” See§ 45
- 5 - 507(4), MCA. The court made it clear that this was “a separate finding by you, independent of the issue of whether the Defendant is gu ilty of the offense of INCEST ,” and had to be “separately stated on the verdict form.” The jury ultimately found , on September 1, 2010, that Stewart was gu ilty of incest and that an act of sexual intercourse or sexual contact occurred when A.S. was under 16 ye ars of age and Stewart was 3 or more years older than her. **Motion for New Trial** ¶21 After the g

uilty verdict, but before the scheduled November 18, 2010 sentencing hearing, this Court issued its decision in State v. Allen , 2010 MT 214, 357 Mont. 495, 241 P.3d 1045 , holding that law enforcement’swarrantless monitoring and recording of the defendant’s cell
-phone conversation violated hisrights under the Montana Constitution and should have been suppressed. Allen , ¶¶ 32
- 65. Based on Allen , Stewart filed a moti on for a new trial challenging the admission of the telephone recordingsin his case
. ¶22 The District Court denied the motion on three separate grounds. F irst, the court reasoned that Angelina’s presence in the vehicle throughout most of the conversations vitiated any expectation of privacy Stewart might have had in the conversations, and thus there had been no Allenv iolation. Second, the court concluded that Detective Lester had complied with then
- existing (i.e., pre
- Allen ) caselaw and acted in good faith with respect to his warrantless recording of the calls , and thus the exclusionary rule would not hav e appliedin any ev

ent . Third , the court reasoned that any error in the admission of the recordings was harmless. The District Court sentenced Stewartt o the Montana State Prison for 50 years, with 20 years suspended. Stewart now appeals.13 **STANDARDS OF REVIEW** ¶23 A trial c ourt’s decision on a motion for a new trial is rev iewed for abuse of discretion, State v. Dunfee , 2005 MT 147, ¶ 14, 327 Mont. 335, 114 P.3d 217, unless the specific issue requires a different standard of review, State v. Ariegwe , 2007 MT 204, ¶ 164, 338 Mont. 442, 167 P.3d 815
. A trial court’s decision that a defendant is not entitled to a new trial as a result of the retroactive application of a new rule for the conduct of criminal prosecutions is a question of law, which is reviewed de novo. State
v. Reichmand, 2010 MT 228, ¶ 13, 358 Mont. 68, 243 P.3d 423. Questions of constitutional law are likewise rev iewed de novo. State v. Kingman , 2 011 MT 269, ¶ 38, 362 Mont. 330, 264 P.3d 1104. L astly, a trial court’s ruling on ev identiary matters is generally rev

iewed 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. Sage , 2010 MT 156, ¶ 21, 357 Mont. 99, 235 P.3d 1284. **DISCUSSION** ¶24 **Issue 1.**  **Is Stewart**  **entitled to a new trial due to law enforcement’s warrantless**  **monitoring and recording of his telephone conversations w ith his daughter**  **?** ¶25 The parties argue three sub
- issues relating to th e broader question of whether Stewart is entitled to a new trial . We shall address each one in turn. **A. Is Stewart entitled to the benefit of a change in the law applicable to**  **the warran tless monitoring and recording of**  **tele phone conversations?**  ¶26 As a threshold matter, we first address the State’s argument that Stewart is not entitled to the benefit of our decision in Allen
. S everal of this Court’s pre - Allen cases condoned the warrantlesselectronic monitoring and recording of telephone conversations14

by law enforcement with the consent of one party , so - called “warrantless participant recording
. ” See Allen ¶¶ 35
- 43 (discussing these cases). The Allen Court ov erruled this line of cases bas ed on the recent decision in State v. Goetz, 2008 MT 296, 345 Mont. 421, 191 P.3d 489, and held that warrantless participant recording is subject to the strictures of Article II, Sections 10 and 11 of the Montana Constitution. Allen , ¶¶ 44
- 46. If Stewartis not entitled to the benefit of this holding, then there is no need to address whether the warrantless recording of the four pretext calls at issue hereviolated his rights under Allen
. ¶27 On one hand, the State acknowledges this Court’s decision in Reichm and, which involved a procedural situation essentially identical to Stewart’s
. A fter the jury found Reichmand guilty, but before his scheduled sentencing hearing, this Court issued its decision in Goetz
. The Goetz case was factually and legally similar t o Reichmand’s case : b oth involved warrantless electronic surveillance of the defendant sb y means of a confidential informant or undercover ag ent equipped with a transmitting dev ice which enabled officers to surreptitiously monitor and record the conversat ions between the defendant and the informant/agent. The recordings were played at Reichmand’s trial. Thus, following the issuance of Goetz , Reichmand filed a motion to set aside the jury ’s verdicton the ground that the recordings had been unlawfully obt ained pursuant to Goetz
. The district court denied the motion, but this Court reversed. The Court held, first, that by raising the issue through his motion to set aside the verdict, Reichmand properly preserved the issue for appellate review. Reichmand , ¶¶ 8
- 12. The Court then held that Goetz applied retroactively to Reichmand ’s caseb ecause Goetzannounced a new rule and because Reichmand’s case was pending on direct review. Reichmand, ¶¶ 13
- 15.15

Finally, the Court held that the admission of the electronic recordings constituted trial error and that this error was not harmless. The Court thus rev ersed Reichmand’s conviction and remanded for a new trial. Reichmand, ¶¶ 17
- 27. ¶28 The State concedes that “ Allen imposed a new oblig ation on the State” and that, pursuant to Reichmand, “Stewart could attempt to seek relief under Allen
. ” Yet, the State then argues that even if there was an Allen v iolation here, Stewart is not entitled to relief because Detective Lester acted in reasonable reliance on pre - Allen a uthority when he made the warrantless recordings . In other words, the State ma intainsthat Lester’s failure to comply with the new obligation imposed on the State by Allen should not be grounds for granting Stewart a new trial , since that obligation did n ot exist when Lester monitored and recorded the conversations at issue . I n this reg ard, the State contends that “Lester’s reliance on the [pre
-

Allen ] line of cases was objectively reasonable , and he conducted his investigation in good faith. ”The State a sserts that probable cause existed to apply for a warrant to record the pretext callsand that, “[ h ] ad Allen been the law, Detective Lester would have obtained a warrant.” The State arguesthat “the entire investigation was conducted in compliance with precedent, including the warrants for the home and the computers and the recordings of phone conversations .” The State thus concludes that the suppression of any evidence obtained here in violation of Allen would not serve the exclusionary rule’s purpose of d eterring improper

p olice conduct because“ Lester’s actions were proper under then
- go verning law.” ¶29 The record supports the State’s contention that Detective Lester made efforts to comply with extant law by obtaining search warrants for the residence, the computers,16

and the data thereon
. Our decision here is not intended to impugn Lester’s efforts or to su gge st that hen eeds to be “penalized” for failing to comply with a legal rulet hat this Court had not yet announced
. Nevertheless , we cannot adopt the g ood
- faith exception the State proposes, as to do so would undermine the very retroactivity principles that the State concedes apply here. ¶30 As the Court reaffirmed in Reichmand, a new rule for the conduct of criminal prosecutions is to be applied retroactive ly to all cases pending on direct review or not yet final. Reichmand, ¶ 14. This rule is , in fact , mandated by the Supreme Court. Griffith v. Kentucky , 479 U.S. 314, 328, 107 S. Ct. 708, 716 (1987) (“[A] new rule for the conduct of criminal prosecutionsi s to be applied retroactively to all cases, state or federal, pending on direct rev

iew or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”)
. A pplication of a “good faith” exception grounded in the exclusionary rule’s deterrence purposewould , in this context , negate the foregoing retroactively rule. In deed , this arg ument was considered , and rejected, in United States v. Johnson , 457 U.S. 537, 102 S. Ct. 2579 (1982)
. There, the go vernment arg ue d that new constitutional rules should be given retroactive effect only where law enforcement officers fa iled to act in good
- faith compliance with then
- prevailing constitutional norms . The Supreme Court observed, however, that because cases involving simp le application of clear, preexisting constitutional guidelines raise no questions of retroactivity at all, the g ov ernment’ s theory “would automatically eliminate all [constitutional] rulings from consideration for retroactive application .” Johnson , 457 U. S. at 5 59
- 60, 102 S. Ct. at 2592. Likewise, in concluding that even a new rule marking17

a “clear break” with past precedent must be givenretroactive application to cases that are not yet final, the Supreme Court in Griffith rejected prior precedents under w hich “reliance by law enforcement authorities on the old standards” dictatedaf inding of nonretroactivity. 479 U.S. at 324
-25, 326
- 27, 107 S. Ct. at 714 , 715 ( internal quotation marks omitted). The Supreme Court emphasized that all defendants whose ca ses are pending on direct review or not yet final must be treated the same in the sense that they
are all entitled to have newly announced constitutional rules applied to their cases. Griffith , 479 U.S. at 327
- 28, 107 S. Ct. at 715
- 16; see also Reichmand , ¶¶ 11
- 12. ¶31 For these reasons, we hold that regardless of Detective Lester’s good
- fa ith reliance on extant caselaw, Stewart is entitled to have this Court’s holding in Allen a pplied to his case , with the result that if there was indeed an Allen violation, then Stewart is entitled to relief for that violation

—i.e., a new trial in which the challenged ev idence is excluded

— unless the Allen violation was harmless. Cf. Reichmand , ¶ 15 (“The District Court erred in determining that Goetzwas not retroactively app licable to Reichmand. We must next determine whether this error requires a reversal of Reichmand’s conviction.”).

**B. Was**  **t here an**  **Allen v**  **iolation in Stewart’s**  **c ase**  **?** ¶32 The MontanaC onstitutionp rovides, in pertinentp art, that “[t]he people shall be securein their persons, papers, homes and effects from unreasonable searches and seizures
. ” Mont. Const. art. II, § 11 . Furthermore , t he right of individual privacy, being essential to the well
- being of a free society , “ shall not be infringed without the showing of a compelling state interest
. ” Mont. Const. art. II, § 10. “ We address ArticleI I, Section 10 in conjunction with Article II, Section 11 in analyzing and resolving a search18

or seizure issue that specifically implicates the right to privacy.” Goetz , ¶ 14. Moreover ,
“ ‘ [i]n light of the constitutional right to privacy to which Montanans are entitled, we have held that the range of warrantless searches which may be lawfully conducted under the Montana Constitution is narrower than the corresponding range of searches that may be lawfully conducted pursuant to the federal Fourth Amendment. ’ ” Goetz , ¶ 14 (brackets in original) (quoting State v. Hardaway , 2001 MT 252, ¶ 35, 307 Mont. 139, 36 P.3d 900); accord

A llen , ¶ 47 ( “ Read together, Sections 10 and 11 provide robust protection to people in Montana against government intrusions .” )
. ¶33 To determine whether state action constitutes an unlawful search , th is Court undertake s a three
- part analysis: First, we determine whether the person challenging the state ’ s action has an actual sub

jective expectation of privacy. Second, we determine whether society is willing to recognize that subjective expectation as objectively reasonable.
. . . [ If these two requirements are met] , then the police conduct constitutes a search, subject to constitutional safeguards. We then consider the third step: whether the state action was justified by a compelling state interest or was undertaken with procedural safeguards such as a properly issued search warrant or other special circumstances. Allen , ¶ 47 (citations and internal quotation marks omitted); accord Goetz , ¶ 27. ¶34 It mustbe noted , a t this juncture , that the first two elements of the foregoing test were adopted from Justice Harlan’s concurrence in Katz v. United States , 389 U.S. 347, 361, 88 S. Ct. 507, 516 (1967), where he opined that a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes
as reasonable. See State v. Cotterell , 2008 MT 409, ¶¶ 26
- 27, 347 M ont. 231, 198 P.3d 254; Kyllo v. United States , 533 U.S. 27, 32
- 33, 121 S. Ct. 2038, 2042
-43 (2001). The19

Supreme Court recently clarified , however, that Katz ’sreasonable
- expectation
- of
- privacy test is not the “exclusive” test for determining whether a search has occurred. United States v. Jones , ___ U.S. ___, 132 S. Ct. 945, 953 (2012). The Katztest augmented, but did not displace or diminish, other tests. See Jones , 132 S. Ct. at 950
- 52 (applying “the common - law trespassory test,” rather than the K atztest, where the government attached a GPS tracking device to the defendant’s vehicle and used it to monitor the vehicle’s
mo ve ments on public streets); see also Jones , 132 S. Ct. at 954
- 55 (Sotomayor, J., concurring). Sincethe f ederal Constitution establishes the floor of constitutional rights, State v. Ariegwe , 2007 MT 204, ¶ 35, 338 Mont. 442, 167 P.3d 815, and because we must guarantee the minimum rig hts established by the United States Constitution, State v. Martinez , 2003 MT 65, ¶ 51, 314 Mont. 4 34, 67 P.3d 207, it is important to acknowledge the foregoing clarification in Jones . Having done so, we note that the present case does not involve the allegation of a “trespassory” search. Moreover , this is not a case in which the defendant argued an alternative “search” test in the trial court. Rather, the defendant here seeks retroactive application of the rule announcedin our intervening Allen decision, which applied the Katztest. We accordingly proceed to apply that test. ¶35 The crux of the parties ’ dispute concernsthe f irst factor: whether Stewart had a subjective expectation of privacy in his telephone conversations with A.S. In arguing this question , the parties focus on our corresponding analysis in Allen . The Court concluded there that Allen had a subjective expectation of privacy in his cell
- phonec onversation with Golie, the confidential informant, for several reasons. F or starters, Allen did not know that the conversation was being recorded; to the contrary, he believed it was20

private
. He believed that Golie was not using the speaker
- phone function on her phone and that no third party was using an extension line to listen in
. Moreover , the recording
ev idenced Allen’s desire to keep the substance of his conversation away from any p rying ears of the general public. F irst, sincethe conversation was telephonic, half of itwas entirely inaudible, making the substance of the conversation poorly intelligible to any outside listener. Second , Allen was mo ving while conv ersing with Golie, and it was hig hly unlikely that any listener c ould glean any intelligible information from overhearing a passing snippet spoken by Allen. Third, during the brief intervals when background voices were audible in the recording, Allen limited his speech to innocuous platitudes, conveying no information about the topics that he and Golie were discussing. All of this led the Court to conclude that “[t] he degreeo f police intrusion into Allen’ s privacy by electronically recording the conversation far exceeded the de gree to which Allen knowingly exposed this conversation to the public (passing snippets). ” Allen , ¶ 49. ¶36 The State maintainsthat Stewart’s case is distinguishable from Allen
. First, t he State argues that Stewart did not strive to keep his conversations p rivateb ut, instead,

“ knowingly exposed them to a third party, Angelina, who was present in the vehicle.” The State recognizes that a third party’s presence, alone, does not necessarily extinguish a privacy expectation. Allen , ¶ ¶ 48
-49. The State furthe r a cknowledges that, similar to the facts of Allen , Angelina initially heard only Stewart’s half of the conversations and Stewart initially spokein general terms(thusindicating a desire to keep certain aspectsof the conversation private). The State , h owever, arg ues a distinction between Allen and the present case: whereas Allen mo ved about while talking withGolie, and it was unlikely21

that any listener could glean any intelligible information from ov erhearing a passing snippet , Angelina was present fo r the va st ma jority of the conversationsand , t hus,

“potentially could ‘ glean
. . . intelligible information ’ about the substance of Stewart’s conversations” (ellipsis in original). Second, even if Stewart did havean expectation of privacyat the outset , t

he State contends that he “relinquished any privacy expectations in the conversations when he told Angelina their substance and subsequently involved her.” ¶37 Stewart, conversely, maintains that he had a subjective expectation of priv acy in his conversation s as ev

idenced by th ef

act that he, at least initially, kept his answers

“ va gue ”and did not address any of A.S.’s alleg ations of sexual misconduct “in any type of specific terms.” Indeed, having listened to the recordings, which are contained in the reco rd, it does appear that Stewart, during the first call and parts of the second, attempts with his vague and evasive responses not to reveal the contentof the conversation insofar as the sexual abuse is concerned. This is contrasted with his franknesswhe n topics such
as finances, dating, and other areas of disagreement are discussed. Notably, Angelina testified at trial that she was “shock [ ed ] ” when Stewart told her, between the second and fourth calls, that he “went down on” A.S. Angelina stated that she felt angry because she had “just found out” that her husband had engaged in a sexual act with their daughter. This further supports Stewart’s claim that he, at least initially, maintained an expectation of privacy in the conversations related to the to pic of sexual abuse. ¶38 At this point , it is necessary to identify the specific privacy expectation at issue here. W hatever expectation of privacy Stewart ma y hav ehadin his conv

ersations with A.S., it could not include, for purposes of Allen , thee xpectati on that the conversations22

would be kept secret and nev er repeat ed
. The Allen Court excluded law enforcement’s recording of Allen’s conversation with Golie, but declined to exclude Golie’s testimony about what Allen had said during that conversation
. Allen , ¶ 65 & n. 2
. Infact , the Court did so despitearguments by the concurring and dissenting opinions that, logically, all ev idence of the conv

ersations should be suppressed. See Allen , ¶¶ 139
- 142 (Nelson, J., specially concurring) (arguing that both therecording and any testimony about the contents of the recording should be excluded); Allen , ¶ 155 (Rice, J., concurring in part and dissenting in part ) ( “If the electronic monitoring and recording of Golie’s conversation with Allen, notwithstanding Golie’ s consent, really constitutes a prohibited search under Article II, Sections 10 and 11 of the Montana Constitution, then the Concurrence is log

ically correct that the conversations themselves, in addition to the recordings, mu st also be suppressed as fruit s of a warrantless, unconstitutional search
. ”). What this means , then , for present purposes, is that the relevantexpectation of privacy is not strictly in the content of the conversations , since nothing in Allen precluded A.S. from testifying in court asto what Stewarthad said. Rather, the expectation of privacy under Allen i s that the g

overnment is not monitoring the conv ersations and making recordings of them. Allen , ¶ 49 (“We conclude that Allen had a subjective expectation of privacy that the conv

ersation was not being surreptitiously recorded by a police informant.”). ¶39 Seen in this light, the District Court and the State misconstrued the appropriate inquiry under Allen . Ev

en assuming, for the sake of argument, that Angelina was able to “g lean” thesubstance of Stewart’s conversations with A.S.

—indeed , although he did not rev eal the full extent of the abuse, he did ultimately tell Angelina between the second and23

fourth calls that he “went down on [A.S.] the other day”

—this did not automatically viti ate Stewart’sexpectation of privacy that the telephone conversations were “not being surreptitiously recorded ” by the government . Allen , ¶ 49. Inf act , the expectation that go vernment agents would not overhear the conversation was arg uably greater for S tewart, who spokewithin the confines of hisvehicle , than it wasfor Allen, who spokein a public venue . Cf. Goetz, ¶

¶ 29
- 30 (a person in a vehicle hasane xpectation of privacy in a conversation “which cannot be overheard by the public outside the vehic le ” ). ¶40 The existence of a sub jective expectation of privacy depends on the uniq ue circumstances of each case. H ere, the following circumstances are dispositive. Stewart was in his own vehicle when he had the conversationso n his cell phone
. He hung up wh en he stopped at a g

as station, where maintaining privacy might be more precarious. The vehicle was otherwise moving, except during the first few minutes of the second call. There was only one other personin the v ehicle with him. That person was some on ehe knew and trusted: his wife. Stewartknew that A.S. called him using the landline at the fa mily ’s residence , rather than her cell phone. There was no indication that somebody was in the house with A.S. listening in on the conversation. There is no evidence that any thirdparty could hear the conv ersation , except Stewart’sw ife( and Detective Lester, of whom Stewart was unaware)
. Stewart had no reason to subjectively expect that he might bee xposing his conversation to electronic monitoring by go vernmenta gents . In the se circumstances, Stewart had a subjective expectation not that his statements to A.S. could
never be repeated

—as noted, nothing in Allen p recluded A.S. from doing so — but that “the conversation was not being surreptitiously recorded” b y the police. Allen , ¶ 49.24

¶41 In responding to Stewart’s motion for a new trial, the prosecutor contested only the first factor

of the three
- prong test

—i.e., whether Stewarthad a subjective expectation of privacy. The prosecutor did not address the second factor

— whether society is willing to recognize thatexpectation of privacy as objectively reasonable. Nor did the prosecutor address the third factor

— whether the state action was justified by a compelling state interest or was undertaken with procedural s afeguards such as a properly issued search warrant or other special circumstances
. See Allen , ¶ 47. As a result , the State does not attempt to argue these points for the first time on appeal. For the sake of thoroughness, however, we shall briefly addre ss the se two factors
. ¶42 As to objective reasonableness, the Allen Court held that society (i.e., the citizens of Montana) is willing to recognize as reasonable the expectation that private cell
- phone conversations are not being surreptitiously monitored and recorded by agents working for the State. Allen , ¶ 57. Thus, Golie’s recording of the conv ersation at the behest of law enforcement constituted a search. Allen , ¶ 61. Under this reasoning, the same conclusion applies here: Lester’s recording of the co nversations constituted searches. ¶43 As to the nature of the governmental intrusion, the Allen Court held that where the police conduct a search without a warrant, it is per se unreasonable absent a recognized exception. Allen , ¶ 62 (citing Goetz , ¶ 40). Furthermore, the State carries the burden of proving that an exception to the warrant requirement applies. Allen , ¶ 62. Since the State did not carry that burden, the Court held that the search was unreasonable. Allen , ¶ 64. Again, we must reach the samec onclusion here: s ince the State has not identified any applicable exception to the warrant requirement, the search was unreasonable.25

¶44 Based on the foregoing analysis, we hold that the pretext recordings of Stewart’s conversations with A.S. violated his rights under Article II, Sections 10 and 11 of the Montana Constitutionas interpreted by the Court in Allen . We now turn to the third and final sub
- issue : whether the admissionof the recordings at trial was harmless error.

**C. W**  **as the a dmission of the**  **r ecordings harmless error?**  ¶45 The first step in conducting harmless
- error analysisi s to determine whether the
error is structural error or trial error. State v. Van Ki rk, 2001 MT 184, ¶ 37, 306 Mont. 215, 32 P.3d 735
. Structural error is the type of error that affects the framework within which the trial proceeds. It typically is of constitutional dimensions, precedes the trial, and undermines the fa irness of the entire trial proceeding. Given its nature, structural error cannot be qualitatively weighed a ga inst the admissible evidence introduced at trial. As a result, structural error is not subject to harmless
- error rev iew ; it is automatically rev ersible, and no additional analysis or rev iew is required. Van Kirk, ¶¶ 38
- 39. Trial error, by contrast, isthe type of error that typically occurs during the presentation of a case to the jury. Trial error can be rev iewed qualitatively for prejudice relative to other ev idence introduced at trial. Thus, trial error is not presumptively prejudicial, is not aut omatically reversible, and is subject to harmless
- error review. Van Ki rk, ¶ 40. Here, the admission of the recordings of the four pretext calls did not contaminate the trial mechanism along

the lines that a biased judg e, lack of counsel, or a jury
- select ion error would. See State v. Derbyshire, 2009 MT 27, ¶ 46, 349 Mont. 114, 201 P.3d 811. It can be reviewed qualitatively for prejudice relative to other evidence introduced at trial. We conclude, therefore, that the error was trial error.26

¶46 The second st ep in the analysis is to determine under the “cumulative evidence” test whether the trial error was harmless. Van Ki rk , ¶¶ 41, 43; Derbyshire , ¶ 47. If the tainted evidence was admitted to prove an element of the offense, then the State must direct us to a

dmissible ev

idence that proves the same facts as the tainted evidence and demonstrate that the quality of the tainted evidence was such that there was no reasonable possibility it might have contributed to the conviction. Derbyshire, ¶ ¶ 47 , 54 . But if the tainted evidence was not admitted to prove an element of the offense, then the admission of the evidence will be deemed harmless only if the State demonstrates that the quality of the tainted evidence was such that there was no reasonable possibility it might hav e contributed to the conviction. Derbyshire , ¶ ¶ 47
- 48 , 54
. ¶47 As an initial matter, the State points out that the parties disputed at trial what the recordings actually showed . As noted, the prosecutor argued that the recordings showed Stewart’s implicit admission of g uilt, while Stewart argued that they showed his explicit denial of g uilt. See ¶ 19 , supra . In any event, the State proceeds on the premise

—with which we agree—that the prosecution introduced the recordings for the purpose of provin g the elements of the offense, i.e., that Stewart knowingly had sexual intercourse or sexual contact with a descendant
. See§ 45
- 5 - 507(1), MCA (defining incest); see also § 45
- 2
- 101(67), MCA (defining “sexual contact” as “touching of the sexual or other intimate parts of the person of another, directly or through clothing, in order to knowingly or purposely

. . . arouse or gratify the sexual response or desire of either party”)
. Hence , the State must direct us to admissible ev idence that proved the same f acts as the recordingsand show

that, qualitatively, there is no reasonable possibility the recordings27

might have contributed to Stewart’s conviction
. Derbyshire , ¶ ¶ 47 , 54 ; Reichmand, ¶ 23
. We conclude that the State has ably met this burden
. ¶48 First, thejury was presented with admissible evidence that proved the same facts. A.S. testified that Stewart first touched her vagina when she was 7 years old and that he engaged in sexual contact with her on a regular basis for the next11 year s . A.S. testified that t his included fondling her va gina “[a]s many times as I can count,” performing oral sex on her, forcing her to perform oral sex on him, and inserting the head of his penis into her vagina when she was 9 years old
. A.S. further testified that Stewarttreated her more like a lover than a daughter. J.S. stated the same thing in his testimony. J.S. also testified that he had seen a photo of A.S. performing oral sex on Stewart when she was 13 or 14 years old and that Stewart would massage A.S.’s breastsand crotch during fa mily mo vie nights
. J.S. further testified that Stewart had told him fantasies about “how he would like to bang [A.S.].” Angelina testified that Stewart had admitted to her that he “went down on” A.S. , which Angelina took to mean “[w] ent down on her private.”W hile Stewart proffered theexplanation that he had used this expression to refer to an incident in which A.S. suffereda bad reaction to coffee , he admitted making the statementnonetheless , and it was up to the jury to weigh th e credibility of his explanation. Stewart also admitted that he told

A.S. “I’d rather rape you than beat you.” Although h e explained at trial that, in context, what he meant was that he would never beat A.S.

—that “I would kill myself before I would beat on you”

—it aga in was up to the jury to weigh the credibility of this explanation. Like the recordings, all of th e foregoing e vidence served to establish the fact that Stewart engaged in incestuous conduct with A.S. Cf. Reichmand , ¶ 22 (holding28

that the confidential informant’s testimony was admissible and proved, generally, the same facts as the inadmissible recordingsdid ). ¶49 As to “the qualitative impact the [recordings] might have had on the fact
- finder,” Derbyshire , ¶ 54, we concludethat thisc ase is d istinguishable from Reichmand, upon which Stewart relies. Notably, the State’s argument regarding this prong of the analysis was “brief and unpersuasive”there, Reichmand, ¶ 24, which is not the case here. B ut more to the point , the qualitative impact of the recordings was much greater therethan it washere . For starters , the only admissible evidence the Court identified as prov ing the same factsa s the inadmissible recordings proved was the testimony of Chor, the confidential informant
. Reichmand , ¶ 2 2. Reichmand’s defense , however, had turned a spotlight on Chor’s potential ulterior motives, his shaky mental capacity, and his inability to remember parts of the drug transactions or names of agentshe had worked with
. The recordings served to confirm Chor’ s testimony and provided jurors with just what they needed in order to fully believe him : actual, objectively reliable recordings of everything that happened during thetransactions
. For these reasons alone, the Court concluded that “there is no doubt the recordings ‘ possibly ’ influenced the outcome.” Reichmand, ¶ 24. Furthermore , the Court noted that the circumstantial evidence was far from conclusive , and the recordings filled in larg e holes and chronological gaps in the testimony of the ag ents. Reichmand’s defense was that he had been misidentified as the person who sold drugs to Chor, and Chor and the agents all acknowledgedthat there were other people in the residence at the time of thetransactions
. The Court concluded that t he recordings o f thetransactions, therefore, “ constituted objective and qualitatively superior evidence for29

the jury to compare against Chor’ s testimony about the details of the transactions and his identification of [Reichmand] as the dealer. ” Reichmand, ¶ 25. F inall y, the recordings
were the sole piece of evidence that the State presented to the jury during closing arg uments. Reichmand, ¶ 26. ¶50 In contrast, one important distinguishing feature of the recordings in the present case, as the State points out, is that the y are not of the crime itself. In other words, we are not dealing here with a recording of Stewart actually engaging in incest with A.S., which unquestionably would carry a much higher qualitative effect. Furthermore, this is not a case where the recordings filled in large holes and chronological gaps in the witnesses’ testimony. S ignificantly, unlike the situation in Reichmand, m ultiple witnesses testified at Stewart’s trial to the same facts that the recordings proved. Indeed, as the State argues, thetrial testimony alone provided the jury with qualitatively dev astating evidence of incest. Added to this were the photographs that Stewart admittedly took of A.S. naked, including close
- ups of her vagina. 1 We are not persuaded by Stewart’s argumentthat the recordings constituteda sort of coup de grâce. Qualitatively, n othing on the recordings is any more inflammatory or prejudicial than the other, admissible evidence at trial. To be sure, the recordings were “objectively reliable,” Reichmand, ¶ 24, and thus “qualitatively superior,” Reichmand, ¶ 25, in the sense that mechanical recordings ( if they are authentic) are generally not subject to the sorts of weaknessesinherent in human testimony, such as bias, faulty memory, or faulty perception. Cf. Uni ted States v. White , 401 U.S. 745, 753,

1 We hold below, under Issue 2, that the District Court did not abuse its discretion in admitting these photographs.30

91 S. Ct. 1122, 1126 (1971) (plurality opinion) (“ An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the un aided
me mory of a police agent.”). Thus, the recordings theoretically may have “bolstered” the credibility of certain witnesses in the minds of the jurors. Reichmand, ¶ 24. Yet, ev en assuming, for the sake of discussion, that the jurors viewed the recordings as qualitatively more reliable ev

idence than the human testimony, we must consider whose credibility the recordings served to bolster

—and that question is not as clear
- cut as Stewart would have us believe
. W

hile he attempts on appeal to portray the recordings as clearly inculpatory and, thus, supportive of

the State’s caseand the State’s witnesses , he took the opposite position at trial and argued to the jury that his statements and responses on the recordings were actually exculpatoryor, a t the v ery least, ambiguous
. Moreover, Stewart used th e recordings for purposes of impeachment during his cross
- examination of A.S. For all of these reasons, we concludet hat any “qualitative impact the tainted evidence might have had on the fact
- finder,” Derbyshire , ¶ 54, was harmless. ¶51 Based onthe foregoin g analysis, we hold that Stewart is not entitled to a new trial premisedon an Allen violation. ¶52 **Issue 2.**  **Did the**  **District Court**  **abuse its**  **discretion in**  **admitting sexually**  **oriented photographs which Stewart took of his daughter?** ¶53 The prosecution indicated before trial that it intended to introduce the photographs of A.S., including those in which she was completely nude or in sexually explicit poses. As noted, Stewart filed a motion in limine to exclude this evidence as irrelevant and unduly prejudicial under Rules 401, 402, and 403 of the Montana Rules of Evidence
.31

¶54 At the time Stewart filed his motion, the Modified Just R ule was still in effect. Under that rule, the prosecution was required to givethe defendant written notice if it intended to introduce evidence of other crimes, wrongs, or acts. The notice had to specify the ev

idence to be admitted , the specific Rule 404(b) purpose or purposes for which the evidence was to be used, and the reason why the evidence was admissible under the purpose(s) state d
. See State v. Matt , 249 Mont. 136, 1 42
-43, 814 P.2d 52, 56 (1991); State v. Whitlow, 285 Mont. 430, 440, 949 P.2d 239, 246 (1997). Suchnotice had not been provided in the present case. Consequently , in responding to Stewart’s motion, the prosecutor invoked State v. Marshall , 2007 MT 198, ¶ 16, 338 Mont. 395, 165 P.3d 1129, where the Court stated that “evidence of acts that are inextricably linked to the offense charged are admissible, notwithstanding the criteria of the Modified Just

R ule.” This is k nown as the “transaction rule.” Marshall, ¶ 16 (citing § 26
- 1
- 103, MCA). The prosecutor argued that the photographs were admissible under this rule. ¶55 The District Court issued an order August 30, 2010, denying Stewart’s motion in limine
. The court read S tewart’s brief to include “an implicit argument that the subject ev idence is not only irrelevant but also fails to meet the procedural safeguards of the modified Just

r ule regarding evidence of other crimes or acts.” The court reasoned, however, that notwithstanding the Modified Just R ule, the photographs were admissible under the transaction rule because they were “inseparably intertwined” with the charged offense. The court also noted that the photo graph s were relevant to Stewart’s state of mind and to the State’s theory that Stewart had groomed A.S. to trust him and to accept the ir alleged sexual relationship.32

¶56 The District Court did not have the benefit of State v. Eighteenth Jud. Dist. Ct., Gallatin County, The Hon. Mi ke Salvagni, Presiding Judge , 2010 M T 263, 358 Mont. 325, 246 P.3d 415, 2w

hich this Court rendered shortly after the District Court issued its ruling on Stewart’s motion. In Salvagni , th eCourt overruled the Modified Just Rule and adopted in its place the procedures outlined at ¶ 49 of th e Salvagniopinion. Suffice it to say that those procedures, coincidentally or presciently, were largely followed here: the prosecution disclose dt

he evidence at issue ; the defense challenged the evidence’s admissibility by means of a motion in limine ; the prosecutor respond edto the defendant’s objections; and the trial court issued a written decision. See Salvagni , ¶ 49. ¶57 It is unnecessary, therefore, to resolve theev identiary issue here by applying the transaction rule. See Salvagni , ¶ 54. For that matter , subsequent to Marshall , the Court cautioned that “the transaction rule should not be permitted to admit propensity evidence that would otherwise be excluded by Rule 404(b).” State v. Guill, 2010 MT 69, ¶ 26, 355 Mont. 490, 228 P.3d 1152 (citing State v. Berosik, 2009 MT 260, ¶ 46, 352 Mont. 16, 214 P.3d 776); accord State v. Sage , 2010 MT 156, ¶ 36, 357 Mont. 99, 235 P.3d 1284. The Court clarified in Salvagni that the proper approach in resolving evidentiary challenges is simply to apply the evidentiary rule or rules under which the challenging party argues the ev idence should be excluded. Salvagni , ¶ 72
. Here , Stewart challenged the photographs as irrelevant and as overly prejudicial propensity evidence
.
2 This decision is sometimes referred to as the “Anderson” case due to the name of the defendant in the underlying criminal proceeding (Shanara Anderson). H owever, becau se the named respondent in the writ proceeding before this Court was the district court judge, we shall henceforth use “ Salvagni ” to refer to this decision.33 **A. Rules 401 and 402**  ¶58 Rule 402 states th at “[a]ll relevant evidence is admissible, except as otherwise provided by constitution, statute, these rules, or other rules applicable in the courts of this state.” Thus , if the photographs arerelevant, they are a dmissible by virtue of Rule 402 , unlesssome other rule preclude stheir admission.

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the ev idenc e. Relevant evidence ma y include evidence bearing upon the credibility of a witness or hearsay declarant
. M. R. Ev id. 401. Rule 401’s basic standard of relevance is a “liberal” one
. See Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 587, 113 S. Ct . 2786, 2794 (1993)
. ¶59 The State alleged that the in cest occurred from 1998 to 2009, i.e., from when A.S. was 7 years old to when she was 18. The photographs of A.S. were taken from when she was about 15 until her 18th birthday. They show her in varying st ates of undress and in sexually provocative poses that Stewart orchestrated , includ ing c lose
- ups of her vagina
. Th e fac t that Stewart orchestrated and took s exually oriented photographs of his daughter has a “tendency” to make it “more probable” that hek nowingly had sexual contact with her . M. R. Ev

id. 401; § 45
- 5 - 507(1), MCA. The photographs are evidence of that fact and are thus relevant. Notably, A.S. testified that Stewart performed oral sex on her after taking the photo graph s in the Salt Lake City hotel room . The photo graph s of A.S. also “bear[ ] upon the credibility of a witness,” M. R. Ev id. 401

— A. S. in particular , as well as J.S. and Angelina

—in that they serve to confirm these witnesses’ testimony
. The photographs are relevant for this reasonas well
.34

¶60 Stewart arg

ues that there is a “temporal” limitation on what constitutes relevant ev idence in this case, due to the fact that the State soughtan enhanced sentence. See § 45
- 5 - 507(4), (5), MCA (specifying enhanced sentences if “the victim is und er 16 years of ag e and the offender is 3 or more years older than the v ictim, ” or if “the victim was 12 years of ag

e or younger and the offender was 18 years of a ge or older”). Stewart contends that the Salt Lake City photo graph s , in particular, are not relevant because A.S.
was 18 at the time , “well beyond any age which would trigger an aggravating factor for sentencing purposes.” This theory , however, conflatesthe elements of the offensewith the facts pertaining to the applicable sentence . E ven assuming, for the sake of argument, that photo graph s taken of A.S. when she was 18 are not relevant to prov e that Stewart engaged in incest with her when she was under 16, the ageof the victim is a fact ( albeit, one which the State notes in its brief must be p rovedb eyond a reasonable doubt, see § 46
- 1
- 401, MCA) that goes to sentenc ing
. Stewart does not challenge his sentence; he challenges his underlying conviction. To convict a personof incest, the State must prove beyond a reasonable doubt that “the perso n knowingly marries, cohabits with, has sexual intercourse with, or has sexual contact . . . with an ancestor, a descendant, a brother or sister of the whole or half blood, or any stepson or stepdaughter
. ”S ection 45
- 5 - 507(1), MCA. There is no “age” element here , and thus the State was not required to prove that the incest occurred while the victim was a particular age in order to obtain a conviction. Correspondingly, s o long a s the Salt Lake City photographs wererelevant to prov e that Stewart knowingly

had sexual intercourse or sexual contact with a descendant during the period alleged ( 1998 to 2009 )

—and , for the reasons already discussed, they wererelevant35

for this purpose—the State was entitled to introduce them (unless they were excluded by some oth er rule of evidence ) . I t was certainly possible that the jury would find Stewart gu ilty of eng

aging in incest, but thenf

ind that the State had not prove dthat the incest occurred when A.S. was under 16 , thus not triggering the enhanced
- sentencepr ovision
. That is why the District Court set these ou t as separate questions on the v erdict. See ¶ 20 , supra . As it turned out, the jury found , f irst , “ that the Defendant knowingly had sexual intercourse with or sexual co ntact with [A.S.], a descendant , ” and , s econd , “that an act of sexual intercourse or sexual contact occurred when [A.S.] was under 16 years of age and the Defendant was 3 or more years old er t han [A.S.]
. ”We agree with the State that the secondf inding as to A.S.’s age does not retroactivelyre nder inadmissible any ev idence that was otherwise relevant to prove that the incest occurred

— such as the photographs
. **B. Rule 404(b)**  ¶61 Rule 404(b) places a limitation on the admission of relevant evidence. Contrary to Stewart ’s assertion , th isr ule does not “ forbid [ ] the a dmission of propensity ev idence
. ” Rule 404(b) states that evidence of other crimes, wrongs, or acts is not admissible “to prove the character of a person in order to show action in conformity therewith” but may be admissible for various other purposes, “such as” proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . Th erule does not bar evidence
. I

t pr ohibits , rather, a theory of admissibility :us ing evidence of other crimes, w

rongs, or acts to prove the defendant’s subjective character, disposit ion, or propensity (e.g., that he is inclined to wrongdoing in general, or that he tends to commit a particular type of wrongdoing) in order to show conduct in conformity with that chara cter36

on a particular occasion. Essentially, the rule disallows the inference from bad act to bad person to guilty person. Salvagni , ¶ 47. If the proffered other
- acts evidence “proves a material issue without requiring any inference to the defendant’s criminal disposition ,” then Rule 404(b) does not bar its use. Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure: Evidencevol. 22 A , § 5239, 260 ( Thomson Reuters Supp. 201 2 ). On the other hand, “if the necessary logical steps [ in th e prosecutor’stheory of admissibility] include an inference of general character or propensity, or if it seems likely that the proof will be used to support such an inference,” then the principle of exclusion applies. Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidencevol. 1, § 4:28, 746
-47 (3d ed., Thomson/West 2007) (emphasis in original)
. ¶62 The threshold question is whether the rule is implicated. The policy underlying Rule 404(b)’s general prohibition comes into play when ever the nature of

t he evidence might tempt the jury to decide the case against the defendant on an improper propensity basis. Edward J. Imwinkelried, Uncharged Misconduct Evidencev ol. 1, § 2:15, 2
- 87 (rev. ed., Thomson Reuters/West 2009)
. Rule 404(b) applies to any cond uct, criminal or noncriminal, that effectively impugns or reflects negatively on the defendant’s character. Imwinkelried, Uncharged Misconduct Evidence§ 2:15, 2
- 86; David P. Leonard, The New Wi gmore: Evidence of Other Mi sconduct and Similar Events § 4.6, 273 (Aspen 2009);
see also Huddleston v. United States , 485 U.S. 681, 685, 108 S. Ct. 1496, 1499 (1988) (Rule 404(b) “generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actor’s character”); Wright & Grah am, Federal Practice & Procedure: Evidence§ 5 239, 282 ( Thomson Reuters 2012 ) (“other acts” includes “any37

conduct, good or bad, that tend[s] to show the character of the person involved”). Here, the fact that Stewart took or orchestratedt

he photographs at issue unquestionably ha sa tendency to impugn or reflect negatively on hischaracter. Rule 404(b) is thus implicated. ¶63 Rule 404(b) prohibitsthe use of the photographs to infer that Stewart has a bad or immoral character and

committed incest with A.S. in conformity with that character. Courts that follow the common - law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. Not that the l aw invests the defendant with a presumption of good character, but it simply closes the whole matter of character, disposition and reputation on the prosecution’s case - in
- chief. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weig h too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fa ir opportunity to defend against a particular charge. State v. Sage , 2010 MT 156, ¶ 37, 357 Mont. 99, 235 P.3d 1284 (citations and internal quotation marks omitted). Yet, while the photographs could not be used to show that Stewart acted in conformity with a bad or immoral character, they could be used for other purposesnot involving a character
- based propensity inference
. ¶64 That brings us to the question of what inference the prosecutor sought to establish through the photographs. The typical prosecution case is reducible to three elements: (1) someone committed the actus reus (i.e., forbidden act) alleged in the indictment or information; (2 ) that person possessed the requisite mens rea(i.e., criminal intent or state of mind) ; and (3) that person was the defendant. Imwinkelried, Uncharged Misconduct Evidence§ 4:1, 4
- 3; Black’s Law Dictionary 41
-42 , 1075 (Bryan A. Garner ed., 9th ed.,38

Thoms on Reuters 2009). “ In child sexual molestation cases, defendant commonly contests neither identity nor mens rea ; defendant effectively concedes that if the charged acts occurred, they were committed with criminal intent. This makes actus reus the sole si gn ificant issue in the case.” L eonard, The New Wi gmore: Evidence of Other Misconduct and Similar Events § 9.4.2, 594. The present casef its thismold. During his opening statement, Stewart’s counsel told the jury : “ Mr. Stewart will testify that it did not occur. It never occurred, not once, not
-- no how, not no way. And he’ll tell you that [A.S. is] making up her story in an effort to get back at him.” Stewart did not admit that he had touchedA .S. , but lacked the requisite state of mind . Nor did h e admit that A.S. had been molested , but by somebody else. The primary issue at trial was the existence of the actus reus , i.e., whether the alleged incest even took place
. ¶65 The u s e of other
- acts evidence to prove the commission of the actus reus does not necessarily run afoul of Rule 404(b). The rule’s prohibition does not apply simply because the prosecutor is using such evidence “to draw an ultimate inference of conduct. Rather, the prohibition applies only when that ultimate inference is coupled with the intermediate inference of the defendant’s persona l , subjective character. If the prosecutor can arrive at an ultimate inference of conduct through a different intermediate inference, the prohibition is inapplicable .” Imwinkelried, Uncharged Misconduct Evidence§ 4:1, 4
- 5 to 4
- 6. Professor Leonard provides an example. D efendant was employed to take care of children in ten different homes in different locations over the course of 20 years. None of the fa milies who employed Defendant knew each other. F ive of the fa milies accused Defendant of sexually molesting a child in Defendant’s care. C harg ed in39

connection witho ne of these cases, Defendant denies that any sexual molestation occurred, claiming that all contacts with the child were appropriate. E vidence concerning the uncharged molestations may be admissible to show that Defendant committed the charged molestation . The inference is not that D efendant committed the uncharged acts, and thus has an immoral or lecherous character, and thus committed the charged act. The inference, rather, is that it is objectively improbable that there would be this many independent accusations of sexual molestation absent a common cause, and thus Defendant committed the charged act. SeeL eonard, The New Wi gmore: Evidence of Other Misconduct and Similar Events § 9.4.2, 607
- 08. ¶66 Here, the prosecutor argued to the jury that Stewart had sexual intercourse or sexual contact with A.S., citing the photographs as one piece of evidence supporting this. These includephotos o f Stewart lifting up A.S.’s dress and looking at her buttocks
. Stewart had A.S. dress in different outfits, including a bikini and some lingerie. A.S. was completely nude in some photos, and Stewart took close
- ups of her vagina. The sexually provocativeand graphic nature of the sephoto graph s establishesthe existence of a sexual dynamic in Stewart’s relationship with A.S
. I ndeed, contrary to hisc haracterization of the photographs as “family photos ”

—like those a mother would take of a small child in a bathtub

—a typical father
- daughter relationship does not involve the father taking sexually explicit photographs of his daug hter such as the ones at issue here. The existence of this sexual dynamic , in turn, supports the inferencetha t Stewart engaged in
s exual intercourse or sexual contact with A.S . This is a permissible inference that is not based on Stewart’s character. I f Stewart was concerned that the jury would draw a40

prohibited propensity inference, he had the option of reque sting an instruction under Rule 105. See Salvagni , ¶ 49; M. R. Ev id. 105 (“When evidence which is admissible .
. . for one purpose but not admissible .
. . f or another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct thejury accordingly.”). We conclude that the photographs were admissible for a valid “other purpose” theory. M. R. Ev id. 404(b). **C. Rule 403**  ¶67 Ev en where other
- acts evidence is “relevant to an issue other than character or the defendant’s propensity to comm it the charged offense,” and is thus not excluded under Rule 404(b) , the evidence is still subject to balancing under Rule 403. Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidencev ol. 2, § 404.21[1][a], 404
- 64 (Joseph M. McLaughlin ed., 2d ed., Matthew Bender & Co. 2010)
. Rule 403 states:

“ Although relevant, ev

idence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence
. ”M. R. Ev id. 403. ¶68 Rule 403 does not require the exclusion of relevant evidence simply because it is prejudicial
. In a criminal prosecution, most of theev idence offered by th e prosecution is prejudicial to the defendant. That is why the evidence is offered: to prove that th e defendant committed the chargedcrime
. State v. Belanus , 2010 MT 204, ¶ 14, 357 Mont. 463, 240 P.3d 1021; accord People v. Karis , 758 P.2d 1189, 1203 ( Cal. 1988) ( all ev idence which tends to prov e guilt is prejudicial or damaging to the defendant’s case)
.41

Rule 403 confers discretion on the trial judge to exclude relevant evidence thatposes a danger of “unfair”p rejudice , but only if th ed anger of unfair p rejudice “substantially outweigh[s]” the evidence’ s probative value. This occurs when the evidence will prompt the jury to decide the case on an improper basis. Belanus , ¶ 14. ¶69 Stewartfaults the District Court for not providing a detailed Rule 403 bal ancing in its order. The District Court explain ed, however, that unless the evidence challenged through a motion in limine is “clearly inadmissible,” a ruling as to whether th eev idence should be excluded

i s “best left for trial so that issues of foundati on, relevance and potential prejudice can be resolved in the proper context.”Stewart, therefore, could have renewed his Rule 403 objection at the appropriate time during trial and thereby given the District Court the opportunity to make its ruling “in th e proper context.” ¶70 Moreover , we are not persuaded that the photographs should have been excluded for the reason s statedin Stewart’s motion . First, he argued that the Salt Lake City photo s might “misle a d” the jury into believing that there indeed was sexu al contact withA.S. at that time
. Yet, A.S. testified that Stewart in fact performed oral sex on her after taking those photographs ; h ence , there was no risk that th e photos would mislead the jury in that respect. S econd, Stewart’s contention that the “prejudicial effect [of the photographs] outweighs any probative value that they might hav e” is without merit. All of the photographs were highly probative of Stewart’s sexual relationship with A.S., and the prosecution’s use of the photographs at trial wa s not unfairlyprejudicial. ¶71 Based on the foregoing analysis, we hold that the District Court did not abuse its discretion in admitting the photographs.4 2 **CONCLUSION** ¶72 Admission of the recordings of the pretext calls contrary to Allen was harmless. The sexuall y graphic photographs were admissible under Rules 401 and 402, and were not excluded by Rules 404(b) or 403. ¶73 Affirmed. /S/ JAMES C. NELSON We Concur: /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT
Justice Beth Baker, concurring. ¶74 I ag

ree that any error in the admission of the recordings of the pretext calls was harmless. I

also ag ree that the District Court properly admitted the challenged photographs. I therefore join paragraphs 45 through 51 of the Court’s discussion of Issue One and all of its discussion with respect to Issue Two.
/S/ BETH BAKER
Justice Jim Ricejoins in the concurring Opinion of Justice Baker
. /S/ JIM RICE