State v. E. Adams

• Court: Montana Supreme Court
• Decided: June 23, 2026
• Docket: DA 24-0040
• Status: Published
• Author: Baker

Opinion

06/23/2026

DA 24-0040 Case Number: DA 24-0040

IN THE SUPREME COURT OF THE STATE OF MONTANA

2026 MT 130

STATE OF MONTANA,

Plaintiff and Appellee,

v.

EDMUND ALVIN ADAMS,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC-22-91 Honorable Jennifer B. Lint, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joseph P. Howard, Joseph P. Howard, P.C., Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Brad Fjeldheim, Assistant Attorney General, Helena, Montana

William Fulbright, Ravalli County Attorney, Angela B. Auch, Chief Deputy County Attorney, Hamilton, Montana

Submitted on Briefs: June 10, 2026

Decided: June 23, 2026

Filed:

__________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court.

¶1 The State charged Edmund Alvin Adams with incest and sexual intercourse without

consent after Adams’s adopted daughter, R.A., disclosed that he molested her. During its

investigation, the State discovered that Adams had adopted another daughter, A.P., during

his prior marriage. When contacted, A.P. disclosed that Adams also sexually abused her

when she was young. The District Court permitted A.P. to testify at trial over Adams’s

objection that her testimony was unfairly prejudicial. A Ravalli County jury found Adams

guilty on all counts. We address the following restated issues:

1. Did the District Court abuse its discretion when it permitted A.P. to testify over Adams’s M. R. Evid. 403 objection?

2. Was Adams’s trial counsel ineffective?

We affirm Adams’s conviction.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In 2015, Adams and his wife Michele assumed custody of Michele’s great-niece,

R.A. Child and Family Services (CFS) had removed R.A. from her mother’s care due to

her mother’s struggles with addiction. R.A. was approximately two and a half years old

when she went to live with Michele and Adams in Stevensville, Montana. They adopted

her roughly two years later.

¶3 During the time that R.A. lived with the Adamses, Michele worked four ten-hour

days per week at the hospital in Hamilton and often spent her day off caring for her

grandchildren in Missoula. Adams was retired but ran a laser engraving business out of

2 his shop on their property. Adams often cared for R.A. after school and during breaks

while Michele was at work.

¶4 In 2022, when R.A. was nine, she confided to her friend at school that Adams was

molesting her. R.A.’s friend encouraged R.A. to tell their teacher. R.A. repeated her

disclosure to the school counselor and a CFS case worker, using dolls to demonstrate what

Adams did to her. During a forensic interview, R.A. alleged that Adams had asked her to

perform oral sex on multiple occasions, and that he also attempted vaginal, anal, and digital

penetration. The State charged Adams with three counts of incest and two counts of sexual

intercourse without consent.1 The charging documents asserted that R.A. was between

four and nine years old when the alleged events occurred, and Adams was between

sixty-five and seventy-one years old. Adams pleaded not guilty and notified the State that

he intended to assert a general denial and good character defense at trial.

¶5 During its investigation, the State discovered that Adams had adopted his biological

niece A.P. during his previous marriage. When investigators reached out to her, A.P. told

them that she also was sexually abused by Adams when she was young. The State obtained

a warrant to conduct a search and extraction of Adams’s cell phone. Adams moved in

limine to exclude A.P.’s testimony and evidence of his internet search history. Adams

argued that the evidence was inadmissible propensity evidence under M. R. Evid. 404(b)

and, even if it was admissible, its probative value was substantially outweighed by the

danger of causing unfair prejudice. The court denied Adams’s motion.

1 The State initially charged Adams with four counts of sexual intercourse without consent. The State amended its charges in July 2023. 3 ¶6 Adams’s trial took place over three days in July 2023. R.A., then ten years old,

testified. She said that although living with Michele and Adams “was like living a good

life,” she could no longer live there because she “wasn’t safe” and she had “been sexed.”

R.A. remembered that the first instance of sexual abuse occurred when she was four. She

and Adams went outside to his shop to get ice cream, and Adams asked her to suck on his

“private part.” R.A. said that she did and that Adams asked her not to tell Michele. R.A.

testified that this happened “a lot of times.” She recalled that if she wasn’t doing it right,

Adams would show her a video on his phone of two adults engaged in oral sex.

¶7 R.A. recalled that Adams penetrated her “back private part” when she was seven

and that once, when she and Adams were in the hot tub, he touched her private part with

his hands and rubbed it inside. R.A. also testified that Adams attempted to penetrate her

“front” part more than once, but that he stopped because it was painful. R.A. testified that

on more than one occasion, Adams gave her R&R whiskey mixed with Pepsi. She said

that Michele was not home when these events occurred. After Adams molested R.A., he

often took her to Walmart in Missoula so that she could pick out a toy as a “reward or

prize.” R.A. identified several stuffed animals and toys that she said Adams bought for her

as “rewards.” R.A. remarked that Adams abused her for the last time right before she told

her friend.

¶8 The State also called A.P. Adams objected under M. R. Evid 403. The court noted

Adams’s objection but allowed A.P. to testify. A.P. explained that her biological mother

is Adams’s sister. A.P. came to live with Adams and his former wife Margaret when she

4 was two or three because her biological mother was “unfit” to parent her. Adams and

Margaret later adopted A.P.

¶9 A.P. alleged that Adams began abusing her when she was nine. A.P. testified that

Adams would wake her up in the middle of the night to take a bath in the master bathroom.

She recalled that Adams gave her little white bottles that she later learned contained

whiskey, and that he told her to “shoot them down like a shot so you don’t even taste them.”

A.P. testified that Adams forced her to engage in oral, vaginal, and anal sex and that Adams

would sometimes give her gifts afterwards such as money or earrings. Because Margaret

was a night shift nurse in a nearby town and often spent nights away from home, she was

not home when the alleged abuse occurred.

¶10 A.P. testified that Adams stopped abusing her just before she turned fourteen and

apologized to her when she was fifteen. She said that she forgave him because he sounded

disgusted by his actions but that his conduct was still inexcusable. She eventually disclosed

the abuse to Margaret after she and Adams divorced, and Margaret filed a report with the

sheriff’s office. A.P. chose not to press charges, remarking that she “chose to leave it up

to God’s judgment.” A.P. testified that she does not know R.A. but testified because she

wanted to “protect” and “be a voice for someone else.” A.P.’s abuse ended approximately

twenty-four years before Adams began abusing R.A.2

2 Although the record does not provide the dates of A.P.’s alleged abuse, A.P. testified that Adams abused her from the ages of nine to thirteen and apologized to her when she was fifteen in 1996. The parties therefore estimate that A.P.’s alleged abuse occurred approximately twenty-eight to thirty-three years prior to the trial, which occurred roughly six years after Adams first abused R.A. 5 ¶11 The State also called law enforcement personnel, a CFS worker, and child advocacy

workers who were involved in R.A.’s case. Deputy Emily Hachenberger testified that she

reviewed the internet search data obtained from Adams’s phone and organized it into four

categories: (1) general searches, (2) incestuous searches, (3) underage searches, and

(4) informational searches. The general category included searches Adams might research

for his business or church. The incestuous searches were factually consistent with R.A.’s

disclosure, the underage searches were factually consistent but not incestuous in nature,

and the informational searches suggested that Adams was searching for information

consistent with the assaults R.A. would later describe. Hachenberger listed several

examples from each category. The State offered, and the court admitted, the cell phone

search data into evidence as Exhibit 31. Adams renewed his objection to this evidence

under Rule 403, but the court overruled it.

¶12 After the State rested, Adams presented his defense. Adams called Dr. Cara Laney,

a psychology professor, who testified that it is possible for individuals to have false

memories that they confidently believe in. She said that it was possible R.A.’s memory

was “corrupted” when she spoke with her friend or the school counselor. Laney also

testified that a person’s exposure to drugs may affect their memory. Several of Adams’s

friends and family members—including Michele—testified that Adams was a good person

and that they believed he was telling the truth. Michele remarked that she had never

observed any physical signs of abuse on R.A.’s body or noticed anything out of the ordinary

in their home.

¶13 Prior to closing arguments, the District Court read Instruction 21 to the jury:

6 The State has offered evidence that Edmund Adams engaged in other wrongs or acts at another time. That evidence is not admitted to prove the character of Edmund Adams or to show he acted in conformity with alleged prior behavior. The only purpose of admitting that evidence is to show proof of motive, common scheme and/or intent. You may not use this evidence for any other purpose. Edmund Adams is not being tried for that other wrong or act. He may not be convicted for any other wrong or offense aside from the charges at issue in this case. You may not use any evidence of other wrongs to prove that he has a propensity to commit the offenses charged. For the jury to convict Edmund Adams of any other offense than that charged in this case may result in unjust double punishment of Edmund Adams.

Both parties referenced Instruction 21 in their argument, cautioning the jury that it could

consider A.P.’s testimony and the search history evidence only for the limited purposes set

forth in the instruction. The jury found Adams guilty on all counts, and the court sentenced

him to five consecutive 100-year prison terms.

STANDARD OF REVIEW

¶14 “District courts have broad discretion to determine the admissibility of evidence.”

State v. Daffin, 2017 MT 76, ¶ 12, 387 Mont. 154, 392 P.3d 150 (citations omitted). We

review a court’s evidentiary rulings for an abuse of discretion, “which occurs when a

district court acts arbitrarily without conscientious judgment or exceeds the bounds of

reason, resulting in substantial injustice.” State v. Madplume, 2017 MT 40, ¶ 19, 386 Mont.

368, 390 P.3d 142 (citing State v. Spottedbear, 2016 MT 243, ¶ 9, 385 Mont. 68, 380 P.3d

810). We review de novo a defendant’s record-based ineffective assistance of counsel

claims. State v. Aker, 2013 MT 253, ¶ 22, 371 Mont. 491, 310 P.3d 506.

DISCUSSION

¶15 1. Did the District Court abuse its discretion when it permitted A.P. to testify over Adams’s M. R. Evid. 403 objection?

7 ¶16 M. R. Evid. 401 defines relevant evidence as “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 evidence.” Although relevant

evidence is generally admissible, M. R. Evid. 402, parties may not introduce evidence of a

person’s prior bad acts to prove “the character of a person in order to show action in

conformity therewith,” M. R. Evid. 404(b). The danger of admitting such evidence is that

the jury might “prejudge” the accused and deny them a fair opportunity to defend

themselves. State v. Peterson, 2024 MT 5, ¶ 14, 415 Mont. 34, 541 P.3d 776 (citations

omitted). Evidence of a person’s prior bad acts may be admissible for other purposes,

however, such as to prove “motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” M. R. Evid. 404(b). Adams does not challenge

the relevance of A.P.’s testimony or its admissibility under Rule 404(b).

¶17 But even if prior bad acts evidence is admissible, the court may exclude the evidence

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. Evid. 403; Peterson, ¶ 21.

Rule 403’s balancing test favors admission. Peterson, ¶ 21.

¶18 In his motion in limine, Adams argued that A.P.’s testimony created a significant

risk of unfair prejudice because “if [A.P.] presents as credible, the jury will be more likely

to convict Mr. Adams based on her testimony . . . regardless of the veracity or credibility

of the complaining witness.” The State responded that A.P.’s testimony was relevant and

admissible under Rule 404(b) to prove Adams’s motive, his intent, and his preparation or

8 plan to abuse R.A. The State argued that the probative value of A.P.’s testimony “is simply

more substantial tha[n] any risk of unfair prejudice to [Adams] by its admission.” The

District Court agreed with the State and denied Adams’s motion. The court remarked:

Distasteful evidence is not automatically prejudicial and the nature of the charges in this case necessitates evidence of negative behaviors. The State describes a pattern of behavior by Defendant that would be shown by [A.P.’s] testimony, which is the same pattern of behavior alleged in this case. This pattern ties the past and present evidence together through the lens of a common, non-propensity motive that is specific to these instances of alleged sexual abuse, which are particular in their nature: rape of an adopted daughter.

¶19 Adams argues on appeal that the District Court’s Rule 403 balancing of A.P.’s

testimony was erroneous.3 Adams contends that because A.P.’s alleged abuse occurred

approximately thirty years before trial, her allegations are too remote in time to have

significant probative value. The State responds that A.P.’s testimony is highly probative

given the similarities between her and R.A.’s allegations, and that the probative value of

these similarities outweighs any danger of unfair prejudice to Adams.

Probative Value of A.P.’s Testimony

¶20 The District Court determined that A.P.’s testimony was admissible under Rule

404(b) and probative of Adams’s motive, his criminal intent, and his preparation or plan.

This Court has affirmed the State’s use of prior acts evidence for the same purposes in

other sex abuse cases. See, e.g., Daffin, ¶¶ 19-20 (concluding that former victims’

testimony “demonstrated Daffin’s longstanding fixation with underage teen girls,

3 Adams does not challenge the District Court’s denial of his motion in limine with respect to his internet search history. 9 particularly living in vulnerable family situations, and provided the motive for his crimes”);

Peterson, ¶¶ 19-20 (explaining that because Peterson generally denied that the sexual

assault occurred, the prior acts evidence was admissible to prove Peterson’s criminal

intent); Madplume, ¶ 29 (concluding that prior uncharged sexual abuse attempt was

sufficiently similar to the charged offense to prove that defendant acted with a common

plan).

¶21 Adams contends that A.P.’s allegations lacked probative value because her alleged

abuse occurred decades before trial. We do not apply a bright-line rule to determine

whether remoteness in time diminishes the probative value of other acts evidence; instead,

remoteness generally pertains “only to the weight of evidence rather than its admissibility.”

State v. Pelletier, 2020 MT 249, ¶ 25, 401 Mont. 454, 473 P.3d 991 (citations omitted).

Whether the evidence must be excluded because it is too remote depends on “the nature of

the evidence and the purpose offered.” Pelletier, ¶ 25 (citations omitted); see also State v.

Stout, 2010 MT 137, ¶ 101, 356 Mont. 468, 237 P.3d 37 (Nelson, J., dissenting)

(“[W]hether an uncharged act is truly too remote in time will depend on the particular

purpose for which the evidence is offered and the proponent’s theory of logical

relevance . . . .”).

¶22 We applied these principles in Pelletier to conclude that the district court improperly

permitted the State to cross-examine Pelletier about an uncharged sexual abuse allegation

that occurred approximately fifteen years prior to trial. Pelletier, ¶¶ 9-10, 28. The State

offered the prior allegation for the purpose of rebutting Pelletier’s testimony that he was

not the type of person to commit a sexual offense. Pelletier, ¶¶ 9-10; M. R. Evid. 404(a)(1)

10 (providing that when a defendant offers evidence of their good character, the prosecution

may offer rebuttal evidence). We determined that the allegation had limited probative

value for the purpose offered because (1) the truth of the allegation was unknown and

(2) the prior incident occurred when Pelletier “was a 15-year-old adolescent rather than the

mature 30-year-old adult he was at the time of the charged incident in 2018.” Pelletier,

¶¶ 24-25. The timeliness and truth of the allegation were important considerations to

determining its probative value for the offered purpose—to rebut Pelletier’s “self-serving

good character testimony” under M. R. Evid. 404(a)(1). Pelletier, ¶¶ 24-26. In addition

to the allegation being unsubstantiated, “the significant difference in maturity level”

between a fifteen-year-old and a thirty-year-old diminished the evidence’s probative value

for purposes of proving Pelletier’s character at the time of trial. Pelletier, ¶ 25. On balance,

we concluded that the risk of unfair prejudice outweighed the limited probative value of

the evidence under Rule 403. Pelletier, ¶ 28.

¶23 In State v. Given, 2015 MT 273, 381 Mont. 115, 359 P.3d 90, however, we affirmed

the court’s ruling permitting Given’s sister to testify that Given sexually abused her

eighteen years prior to his trial for the abuse of K.F. The district court prohibited the State

from introducing evidence of Given’s conviction for abusing his sister but permitted the

sister to testify about the abuse to prove Given’s intent, absence of mistake, and common

scheme of grooming used to perpetrate the abuse of K.F. Given, ¶ 25. Noting the

similarities between Given’s sister’s and K.F.’s allegations, we reasoned that her testimony

was relevant and probative for the non-propensity purposes offered despite the remoteness

of the allegations. Given, ¶ 31 (“[B]oth incidents involved young children with whose care

11 Given had been entrusted and . . . in both cases, Given had given special favors and

generous gifts to the victims far in excess of what he did for their siblings.”). We concluded

that the court did not abuse its discretion when it concluded that the probative value of the

evidence was not substantially outweighed by the danger of unfair prejudice. Given,

¶¶ 33-34.

¶24 Like Given, there are substantial similarities between A.P. and R.A.’s allegations.

Adams adopted both girls after their mothers no longer could care for them. Adams began

abusing them when they were young and allegedly forced them to engage in oral, vaginal,

and anal sex—sometimes intoxicating them with whiskey first. In both cases, Adams’s

wives worked long hours outside of the home, and Adams allegedly seized this opportunity

to carry out the abuse. Both A.P. and R.A. testified that Adams gave them gifts after he

molested them. Unlike Pelletier, Adams was a mature adult when he allegedly abused both

A.P. and R.A. In Pelletier, the State offered the fifteen-year-old allegation to prove

Pelletier’s character at the time of trial; thus, the timeliness of the allegation was important

to the State’s theory of logical relevance. Pelletier, ¶ 25. Here, the State offered A.P.’s

testimony to prove Adams’s motive, intent, and preparation or plan to abuse R.A. Like in

Given, timeliness was less important to the State’s theories of logical relevance.4

4 The Dissent, ¶¶ 53-54, relies on State v. Tecca, 220 Mont. 168, 714 P.2d 136 (1986), and State v. Ray, 267 Mont. 128, 882 P.2d 1013 (1994), to argue that the probative value of A.P.’s allegations was substantially diminished because there was no continuous pattern of conduct between A.P.’s and R.A.’s abuse. Tecca and Ray discuss remoteness in the context of this Court’s outdated Rule 404(b) framework, which required that prior acts “must not be remote in time” to be admissible. Ray, 267 Mont. at 132, 882 P.2d at 1015. We overruled this requirement in State v. Dist. Ct. of the Eighteenth Jud. Dist., 2010 MT 263, 358 Mont. 325, 246 P.3d 415 (Salvagni), explaining that the remoteness bar to admissibility was a holdover “from our pre-Rule 404(b) jurisprudence and [is] not necessarily applicable to every nonpropensity theory of logical relevance.” Salvagni, ¶ 56. 12 ¶25 The Dissent cites Given and Pelletier to argue that A.P.’s testimony carries less

probative force because A.P.’s allegations were unadjudicated. Dissent, ¶¶ 57-60. Again,

depending on the purpose for which the evidence is offered, the adjudicated truth of prior

bad acts evidence may be one consideration in a Rule 403 analysis. See Pelletier, ¶ 24

(“[T]he unsubstantiated 2003 allegation thus had no non-speculative probative value for

the offered purpose of rebutting [Pelletier’s] asserted good character.”). Although the

Dissent distinguishes Given on this ground, our analysis of the prior acts evidence in that

case did not hinge on—or even discuss—Given’s conviction. The jury there faced the

same task that the Dissent, ¶ 60, notes in this case: because the court did not permit

evidence of Given’s prior conviction, the jury had to determine his sister’s credibility and

whether to accept her testimony. Given, ¶ 25. Like remoteness, the State’s theory of logical

relevance informs whether the evidence’s probative value is diminished by the absence of

a conviction.

¶26 Here, A.P.’s testimony tended to prove that Adams’s motive to abuse R.A. was his

sexual fixation with underage girls in a familial relationship—his adopted daughters—

whose care had been entrusted to him. Because Adams asserted a general denial defense,

the State had to prove that Adams “knowingly” committed the offenses of incest and sexual

intercourse without consent. Sections 45-5-503, -507, MCA. Adams’s defense at trial was

that R.A.’s memory may have been “false” or that the events she described did not occur.

In support of his defense, Adams presented expert testimony that R.A.’s memory may have

Tecca and Ray thus analyzed remoteness within a rigid framework that our current approach does not apply. 13 been “corrupted” by third parties who implanted false memories about the abuse. Adams

also called several friends and family members—including R.A.’s adoptive mother—who

testified that they never observed any signs of abuse in R.A., that Adams was a good

person, and that they believed he was telling the truth. A.P.’s testimony undermined the

defense’s theory and tended to disprove that R.A. made up the allegations. The similarities

between A.P.’s and R.A.’s allegations were probative of Adams’s common scheme or plan

to take advantage of a child brought into his home from an unstable family situation, groom

her using specific techniques, and abuse her while his wife was at work.

¶27 Viewing the record as a whole, A.P.’s testimony carries added probative value

considering Adams’s defense attacking the veracity of R.A.’s claims. We do not, as the

Dissent claims, suggest that similarity is “self-justifying.” Dissent, ¶ 63. In this case,

however, the similarities between A.P.’s and R.A.’s allegations were highly probative of

the specific, non-propensity purposes for which they were offered. The Dissent fails to

afford appropriate deference to the District Court’s evaluation of these similarities in light

of Adams’s specific defense theory when analyzing the evidence’s probative value.

Though a great deal of time had passed since his abuse of A.P., Adams’s abuse of R.A.

seemingly occurred at his next opportunity.

Danger of Unfair Prejudice

¶28 Adams maintains that the unfairly prejudicial nature of A.P.’s testimony tips the

Rule 403 balancing toward inadmissibility. Because probative evidence inherently is

prejudicial to one side or the other, Rule 403 bars evidence only if it poses a “danger of

unfair prejudice.” Peterson, ¶ 21 (quoting State v. Lake, 2022 MT 28, ¶ 32, 407 Mont.

14 350, 50 P.3d 274). Evidence is unfairly prejudicial when it is likely to provoke the jury to

decide the case on an improper basis, Given, ¶ 33, such as when it is likely to: “(1) provoke

jury hostility or sympathy for one side regardless of probative value; (2) unduly confuse,

mislead, or distract the jury from the central matters at issue in the case; or (3) cause the

jury to give undue importance or emphasis to an extraneous prejudicial matter,” Pelletier,

¶ 21 (citations omitted). If the prior acts evidence is both highly relevant and inherently

prejudicial, courts can reduce or eliminate the risk of unfair prejudice by providing a

limiting instruction. Pelletier, ¶ 27.

¶29 Recognizing the “highly inflammatory nature of child sex abuse evidence,”

Peterson, ¶ 22, we have considered whether the uncharged act is “more abhorrent” than

the crime charged. See Peterson, ¶ 23; State v. Murphy, 2021 MT 268, ¶ 16, 406 Mont.

42, 497 P.3d 263. If so, the evidence may be more likely to provoke the jury to decide the

case on an improper basis. See, e.g., Peterson, ¶¶ 2, 23 (concluding that extensive evidence

of prior rape and digital penetration allegations against Peterson posed risk of unfair

prejudice in his trial for sexual assault for allegedly touching granddaughter’s vagina over

her pants). A.P.’s allegations, in contrast to Peterson, were quite similar to R.A.’s, not

“more abhorrent,” Peterson, ¶ 23, and would not have a tendency to distract the jury from

the acts with which Adams was charged. The two testified that Adams had forced them to

perform similar sexual acts, thus reducing the likelihood of inflammatory impact from

A.P.’s testimony or provoking jury hostility “regardless of probative value.” Pelletier,

¶ 21.

15 ¶30 The Dissent, ¶ 67, suggests that prior acts that are too similar render the evidence

too prejudicial. But as we recognized in Given, ¶ 33, Rule 403 “does not require the

exclusion of relevant evidence simply because it is prejudicial. Rather, such evidence is

inadmissible only when it will prompt the jury to decide the case on an improper basis.”

In Given, like here, the similarities between the two instances of sexual abuse were

pronounced, but we did not find the evidence unfair. Given, ¶ 33. We reach the same

conclusion in this case. As discussed, Rule 403 favors admission of evidence. Peterson,

¶ 21. And the balancing it calls for is committed to the discretion of the trial court, not to

de novo determination on appeal. State v. Colburn, 2018 MT 141, ¶ 17, 391 Mont. 449,

419 P.3d 1196. Although A.P.’s testimony was inherently prejudicial, the District Court

did not act arbitrarily or without conscientious judgment when it concluded that the

evidence did not pose a significant risk of unfair prejudice that would substantially

outweigh its high probative value. M. R. Evid. 403.

¶31 Adams contends, though, that the State’s use of A.P.’s testimony amplified its

prejudicial nature. “Evidence of a defendant’s prior bad conduct may amplify its inherently

prejudicial nature by virtue of the manner in which it is presented and used.” Peterson,

¶ 24. For example, in Peterson, the State’s use of the prior acts evidence violated Rule 403

because the State repeatedly reminded the jury of Peterson’s prior offenses and emphasized

that Peterson had not been “brought to justice for the vast majority of his conduct.”

Peterson, ¶ 25. Despite testimony from three witnesses that Peterson sexually abused them

as children, the State presented evidence that Peterson had been convicted only once and

served just forty-five days in jail. Peterson, ¶¶ 25-26. We determined that the State’s use

16 of the evidence created a risk that the jury would convict Peterson because he had “gotten

away with” his prior offenses or “had not learned his lesson.” Peterson, ¶ 26 (internal

quotations omitted; citations omitted).

¶32 In Adams’s trial, the prosecutor asked A.P. about the general categories of sexual

activity that she engaged in with Adams but cautioned, “I don’t want detail.” R.A., on the

other hand, vividly described the sexual acts that Adams forced her to perform and the pain

that his actions caused her. Further, the court gave a Rule 404(b) limiting instruction,

directing the jury not to use the prior acts evidence for any purpose other than to show

“proof of motive, common scheme and/or intent.” The State emphasized the court’s

limiting instruction during closing, stating, “The jury does not get to listen to [A.P] and

think, [w]ell, if he’s done it before, he must’ve done it this time . . . . We’re deciding

[R.A.’s] case today. But what the jury can do is, again, say, [w]hat motivates the defendant,

and was this a part of his preparation or plan?” Although A.P. testified that she did not

press charges against Adams and that she wanted to help R.A., the State did not belabor

this aspect of her testimony to argue that Adams had gone unpunished in the past. Because

A.P.’s testimony was both highly relevant and prejudicial, the court’s instruction reduced

the risk that the evidence would unfairly prejudice Adams. Pelletier, ¶ 27. The record

does not support Adams’s argument that the State improperly amplified the prejudicial

nature of A.P.’s testimony.

¶33 The Dissent claims that the risk of unfair prejudice was heightened by the State’s

introduction of Adams’s search history evidence and the court’s failure to provide a second

limiting instruction immediately preceding A.P.’s testimony. Dissent, ¶¶ 69-71. Adams

17 does not challenge on appeal the court’s admission of his search history evidence—either

under Rule 404(b) or under Rule 403. Nor did he request a second limiting instruction

before A.P. testified. See Salvagni, ¶ 49. We do not consider in our Rule 403 analysis the

admission of evidence Adams did not challenge on appeal.

¶34 District courts are in the best position to evaluate the prejudicial effect of evidence

and are afforded broad discretion in determining its admissibility. Peterson, ¶ 21. The

District Court considered the inherently prejudicial nature of A.P.’s testimony but

determined that, given the similarities between R.A.’s and A.P.’s allegations, the probative

value of A.P.’s testimony outweighed any risk of unfair prejudice to Adams. The Dissent

fails to give the court the deference that the applicable standard of review requires. Under

the abuse of discretion standard, we do not substitute our view for that of the trial court but

determine whether the court “acted arbitrarily without the employment of conscientious

judgment or exceeded the bounds of reason, resulting in substantial injustice.” State v.

Price, 2006 MT 79, ¶ 17, 331 Mont. 502, 134 P.3d 45. Considering the above factors in

light of pertinent precedent, we conclude that the District Court did not abuse its discretion

by admitting A.P.’s testimony.

¶35 2. Did Adams receive ineffective assistance of counsel?

¶36 Defendants have a constitutional right to effective assistance of counsel. Mont.

Const. art. II, § 24; U.S. Const. amend. VI. To succeed on an ineffective assistance of

counsel claim, “a defendant must prove both (1) that counsel’s performance was deficient,

and (2) that counsel’s deficient performance prejudiced the defense.” State v. Ward, 2020

MT 36, ¶ 18, 399 Mont. 16, 457 P.3d 955 (citations omitted). To establish prejudice, a

18 defendant must prove “a reasonable probability that, but for counsel’s error, the result of

the proceeding would have been different.” Spottedbear, ¶ 49 (quoting State v. Johnston,

2010 MT 152, ¶ 15, 357 Mont. 46, 237 P.3d 70).

¶37 We generally review an ineffective assistance claim on direct appeal only when

counsel’s reasoning for taking a particular course of action is apparent from the face of the

record. State v. West, 2026 MT 13, ¶ 44, 426 Mont. 139, 583 P.3d 205. Claims based on

matters outside the record are better suited for postconviction proceedings. Ward, ¶ 20. In

the rare case that “no plausible justification” exists for counsel’s decision or when “counsel

is faced with an obligatory, and therefore non-tactical, action,” we will review a

defendant’s claim regardless of whether it is record based. State v. Kougl, 2004 MT 243,

¶ 15, 323 Mont. 6, 97 P.3d 1095 (citations omitted).

¶38 Adams argues on appeal that his trial counsel was ineffective because she failed to

request that the court give a limiting instruction before A.P. testified or before the State

introduced evidence of Adams’s search history. Adams contends that, when admitting

prior acts evidence under Rule 404(b), courts must provide a limiting instruction twice

during trial: once before the evidence is introduced and again prior to closing argument.

He claims that there was no plausible justification for counsel’s omission and that, in the

absence of a second limiting instruction, he was prejudiced and deprived of a fair trial.

¶39 Adams relies on this Court’s outdated procedural framework for the admission of

Rule 404(b) evidence to support his argument. See State v. Just, 184 Mont. 262, 274, 602

P.2d 957, 964 (1979) (requiring courts to explain to the jury the purpose of Rule 404(b)

evidence and “admonish it to weigh the evidence only for such purposes”), overruled by

19 Salvagni. After Salvagni, the burden falls on defendants to propose an appropriate limiting

instruction if desired. Salvagni, ¶ 49. There, we remarked that if a court deems Rule 404(b)

evidence admissible, the defendant may request a limiting instruction. Salvagni, ¶ 49

(emphasis added). This is consistent with M. R. Evid. 105, which provides that when

evidence is admissible for one purpose but not for another, “the court, upon request, shall

restrict the evidence to its proper scope and instruct the jury accordingly.” (Emphasis

added.) Adams’s argument that his trial counsel was obligated to request a limiting

instruction both as part of the trial instructions and prior to the State’s introduction of Rule

404(b) evidence is without support. Further, there exists at least a plausible justification

for counsel’s failure to do so, including avoiding drawing extra attention to the evidence.

¶40 The record does not support Adams’s argument that he was prejudiced by counsel’s

omission. Adams’s attorney proposed, and the court gave, a limiting instruction directing

the jury not to consider the prior acts evidence for propensity purposes. During closing

argument, Adams’s counsel cautioned jurors not to use A.P.’s testimony and the

“pornography searches” to assume his guilt. She emphasized that “[t]hose facts, if

believed, only go to the limited purpose which the instruction will tell you. And that is

intent, motive, and common scheme.” The State gave a similar warning during its

argument and did not improperly emphasize the prior acts evidence. We therefore

conclude that Adams cannot meet his burden of proving that, but for counsel’s failure to

request that the instruction be given twice, there exists a “reasonable probability” that the

outcome of his trial would have been different. Spottedbear, ¶ 49.

20 CONCLUSION

¶41 The District Court did not act arbitrarily or exceed the bounds of reason when it

concluded that the probative value of A.P.’s testimony was not substantially outweighed

by the danger of unfair prejudice. The District Court therefore did not abuse its discretion

when it permitted A.P. to testify over Adams’s Rule 403 objection. Adams has not met his

burden to show that his trial counsel was ineffective. We affirm Adams’s conviction.

/S/ BETH BAKER

We Concur:

/S/ CORY J. SWANSON /S/ JAMES JEREMIAH SHEA /S/ JIM RICE

Justice Katherine M. Bidegaray, dissenting.

¶42 I respectfully dissent. The majority affirms the admission of highly inflammatory

other-acts evidence that was extraordinarily remote, never charged, never adjudicated,

never admitted by Adams, and introduced in a case that depended heavily on credibility. I

agree the evidence had some non-propensity value because the State identified permissible

Rule 404(b) purposes and the similarities between the two sets of allegations were real.

But Rule 404(b) admissibility does not end the analysis. The central question is whether,

under M. R. Evid. 403, that probative value was substantially outweighed by the danger

that the jury would use a decades-old, uncharged, unadjudicated allegation for the

forbidden propensity inference. In my view, the majority gives controlling practical weight

to similarity while giving insufficient force to remoteness, lack of continuity, uncertainty

21 of the prior allegation, and the practical risk that the jury would treat the prior allegation as

direct corroboration of the charged allegation. Similarity may increase probative value,

but it also increases the danger that jurors will reason: if he did it to one adopted daughter,

he likely did it to another. Rule 403 requires courts to confront both sides of that equation.

Because the District Court abused its discretion under M. R. Evid. 403, and because the

error was not harmless, I would reverse and remand for a new trial.

I. Procedural posture and relevant facts

¶43 The State charged Edmund Alvin Adams with three counts of incest and two counts

of sexual intercourse without consent based on allegations by his adopted daughter, R.A.,

arising between 2016 and 2022, when R.A. was between four and nine years old. Before

trial, Adams moved in limine to exclude testimony from A.P., another adopted daughter,

concerning allegations that Adams sexually abused her approximately 28 to 33 years

earlier. The District Court denied the motion, concluding the evidence was admissible for

non-propensity purposes under M. R. Evid. 404(b) and that its probative value was not

substantially outweighed by unfair prejudice under M. R. Evid. 403.

¶44 At trial, R.A. testified that Adams began sexually abusing her when she was four

and described abuse that occurred when Michele was away or not home. The State also

introduced Adams’s Internet search history, which included numerous incestuous and

underage sexual search terms. Adams does not challenge on appeal the admission of

that search-history evidence. I therefore do not rely on its admission as error. The

search-history evidence matters only to the evidentiary landscape and harmless-error

22 analysis because it gave the State independent evidence of Adams’s sexual interests and

knowledge; it did not make A.P.’s testimony any less prejudicial or merely cumulative.

¶45 Near the end of the State’s case, A.P. testified that Adams began abusing her when

she was nine and continued until she was nearly fourteen; that he used alcohol, gifts, and

the absence of his then-wife to facilitate the abuse; and that he later apologized. A.P.

further testified that she never pursued charges. Her allegations were never charged, never

adjudicated, and never admitted by Adams.

¶46 The jury did not receive the limiting instruction before hearing either the

search-history evidence or A.P.’s testimony. The court delivered the instruction only as

part of the final charge. I do not treat the absence of a contemporaneous limiting instruction

as an independent ground for reversal. M. R. Evid. 105 is request-based, and Adams did

not request such an instruction before A.P. testified. But the timing of the instruction

remains relevant to the majority’s reliance on that instruction to reduce the prejudice from

the evidence. The jury convicted Adams on all counts.

II. Standard of review

¶47 We review evidentiary rulings for abuse of discretion. State v. Daffin, 2017 MT 76,

¶ 12, 387 Mont. 154, 392 P.3d 150. A district court abuses its discretion when it acts

arbitrarily, without conscientious judgment, or exceeds the bounds of reason, resulting in

substantial injustice. State v. Madplume, 2017 MT 40, ¶ 19, 386 Mont. 368, 390 P.3d 142.

¶48 Evidence of other crimes, wrongs, or acts is not admissible to prove character in

order to show action in conformity therewith. M. R. Evid. 404(b). Such evidence may be

admissible for other purposes, including proof of motive, opportunity, intent, preparation,

23 plan, knowledge, identity, or absence of mistake or accident. M. R. Evid. 404(b). But Rule

404(b) admissibility does not end the analysis. Even when other-acts evidence is relevant

for a permissible purpose under Rule 404(b), it remains subject to exclusion under Rule

403 if its probative value is substantially outweighed by the danger of unfair prejudice.

State v. Peterson, 2024 MT 5, ¶ 21, 415 Mont. 34, 541 P.3d 776. Remoteness bears directly

on probative value, should be considered in a Rule 403 analysis, and, depending on the

nature of the evidence and the purpose offered, may substantially diminish it. State v.

Dist. Ct. of the Eighteenth Jud. Dist., 2010 MT 263, ¶ 56, 358 Mont. 325, 246 P.3d 415

(Salvagni); State v. Pelletier, 2020 MT 249, ¶ 25, 401 Mont. 454, 473 P.3d 991.

¶49 Salvagni eliminated the former modified-Just framework and rejected a categorical

remoteness bar; it did not make remoteness irrelevant. Remoteness remains important

because it bears directly on whether other-acts evidence retains meaningful non-propensity

probative value for the purpose offered. Salvagni, ¶ 56; Pelletier, ¶ 25. Salvagni therefore

does not end the inquiry; it moves the inquiry where the Rules of Evidence place it—into

the Rule 403 balance.

¶50 If the evidence was admitted in error, the State must show that the quality of the

tainted evidence was such that there is no reasonable possibility the tainted evidence

contributed to the conviction. State v. Van Kirk, 2001 MT 184, ¶ 44, 306 Mont. 215,

32 P.3d 735.

III. The District Court abused its discretion under Rule 403

¶51 I agree with the Court to this extent: A.P.’s testimony was not irrelevant merely

because it concerned prior conduct. The State articulated non-propensity theories—

24 motive, intent, preparation, and plan—and the similarities between A.P.’s and R.A.’s

allegations were real. Those similarities gave the evidence some probative value. But Rule

403 is the operative limit, and it required exclusion here because the danger of unfair

prejudice substantially outweighed that value.

¶52 The State offered A.P.’s testimony to prove motive, intent, preparation, plan, and

knowledge—specifically, that Adams had a sexual fixation on young, adopted daughters;

that his alleged conduct toward R.A. was knowing rather than innocent, innocuous, or

accidental; and that he had a plan or preparation to adopt a vulnerable child, groom her,

and sexually abuse her. Those are permissible Rule 404(b) purposes. But Rule 403

requires more than labels. It requires the court to test whether the evidence has substantial

non-propensity probative value for the stated purpose and whether that value is

substantially outweighed by the risk that the jury will use the evidence for the forbidden

inference. Here, the State’s stated “motive” theory—that Adams had a sexual fixation on

adopted daughters—came especially close to the prohibited propensity inference that,

because he allegedly abused one adopted daughter decades earlier, he likely abused

another.

A. Extreme remoteness sharply reduced the evidence’s probative value

¶53 Montana law does not treat remoteness as an afterthought. Although Salvagni

rejected a categorical remoteness bar, it preserved remoteness. Remoteness remains as a

Rule 403 consideration because remoteness bears directly on whether other-acts evidence

retains meaningful non-propensity probative value for the purpose offered. Pre-Salvagni

cases do not control the admissibility inquiry, but they remain instructive examples of a

25 common-sense Rule 403 principle: remoteness matters less when the State shows

continuity, and more when the prior allegation is isolated and separated from the charged

conduct by decades. In Ray, this Court held that prior acts occurring 16 to 18 years before

the charged conduct were too remote absent intervening acts showing a continuing course

of conduct. State v. Ray, 267 Mont. 128, 133-34, 882 P.2d 1013, 1016 (1994). In Tecca,

by contrast, remoteness was alleviated because the State established a continuing pattern

of similar conduct extending over the nine years leading up to the charged offense. State

v. Tecca, 220 Mont. 168, 172-73, 714 P.2d 136, 138-39 (1986). Ray and Tecca do not

impose a post-Salvagni remoteness bar. They illustrate why continuity matters when the

State asks a jury to use old conduct to infer present motive, intent, or plan. Pelletier

confirms the same principle under the modern framework: depending on the nature of the

evidence and the purpose for which it is offered, remoteness may substantially diminish

probative value on Rule 403 balancing. Pelletier, ¶ 25.

¶54 This case is not Tecca. Here, the State presented no bridging conduct, no

intervening allegations, and no continuous pattern spanning the decades between A.P.’s

allegations and the charged conduct involving R.A. Instead, it offered two isolated sets of

allegations separated by roughly three decades. Under Salvagni, Ray and Pelletier, that

temporal gulf matters greatly.

¶55 The majority’s response is that the abuse of R.A. occurred at Adams’s “next

opportunity.” But the “next opportunity” rationale supplies by inference what the record

lacks in proof: continuity. “Next opportunity” is not a fact found in the record; it is an

inference drawn from the absence of another young, adopted daughter in Adams’s home.

26 That inference may explain why the State sought the evidence, but it cannot itself supply

the continuity missing from the Rule 403 analysis. If a decades-long gap can be filled

simply by characterizing the charged conduct as the defendant’s next opportunity,

remoteness ceases to have independent force in any case involving an older defendant

accused of similar misconduct after a long interval. Rule 403 balancing cannot be sustained

by conjecture. The question is not whether one can imagine a theory that restores probative

value, but whether the State established enough real probative force to justify the

substantial danger of unfair prejudice. On this record, it did not.

¶56 On this record, “next opportunity” is not evidence of continuity; it is a label placed

on a gap. The State did not prove intervening conduct, intervening allegations, or a

continuing pattern over the decades between the two sets of allegations. A court cannot

restore probative force lost to remoteness by assuming that a defendant would have

reoffended earlier had a similar opportunity arisen. That assumption approaches the

propensity inference Rule 404(b) forbids and Rule 403 must guard against.

B. The prior allegation was uncharged, unadjudicated, and uncertain in a way that further reduced probative value

¶57 The distinction between this case and Given is critical. In State v. Given, 2015 MT

273, 381 Mont. 115, 359 P.3d 90, this Court affirmed the admission of other-acts testimony

concerning a sexual assault that occurred eighteen years before the charged sexual assault

of a 10-year-old boy, K.F. But Given is materially distinguishable. There, Given had

admitted sexually assaulting his sister when she was between six and eleven years old and

had been convicted of that offense. Given, ¶ 6. In determining whether to allow Given’s

27 sister to testify in K.F.’s case, the District Court followed the process articulated in

Salvagni, ¶ 49. The District Court limited the purpose for which the jury could consider

the evidence, allowing Given’s sister’s testimony only to show intent and absence of

mistake after Given claimed his conduct toward K.F. was accidental or harmless. Given,

¶ 25. And before the sister testified, the court instructed the jury on the limited purpose of

the testimony. Given, ¶ 25.

¶58 The majority correctly notes that the jury in Given did not hear evidence of the prior

conviction and therefore still had to assess the sister’s credibility. But that does not make

the conviction irrelevant to the Rule 403 context. Given’s significance is not that the jury

heard about the prior conviction; it did not. Its significance is that the prior act was not an

untested, decades-old allegation at the admissibility stage. Given had admitted and been

convicted of the prior assault. The prior conviction materially reduced the uncertainty and

collateral-litigation concerns that dominate the Rule 403 balance here. Given also involved

a narrower purpose tied to intent and absence of mistake, and the jury received a limiting

instruction before hearing the sister’s testimony of the prior act. Given, ¶ 25. Those

safeguards materially affected the Rule 403 balance.

¶59 Ordinary deference to the District Court’s Rule 403 judgment does not answer the

problem. Deference is warranted when the trial court exercises discretion on a record that

permits it to assign probative value without relying on the forbidden propensity inference.

That was true in Given. The prior act had been admitted and adjudicated, the evidence was

confined to narrower purposes tied to intent and absence of mistake, and the jury received

limiting guidance before hearing the testimony. Given, ¶¶ 6, 25. Those circumstances

28 provided a more reliable basis for assigning probative value while limiting collateral

prejudice. Here, by contrast, the District Court’s Rule 403 analysis necessarily depended

upon treating A.P.’s decades-old, uncharged, unadjudicated allegation as sufficiently

reliable to establish what Adams had “knowingly engaged in” before. On this record,

deference does not require accepting a Rule 403 balance that derives substantial probative

force from an untested accusation while discounting the collateral credibility contest and

propensity risk that accusation created.

¶60 Here, by contrast, A.P.’s allegations were never prosecuted, never adjudicated, and

never admitted by Adams. The jury therefore was asked to decide not only whether R.A.

was credible, but also whether A.P. was credible regarding an allegation from nearly thirty

years earlier. That is precisely the kind of collateral credibility contest that exacerbates the

“mini-trial” problem and increases the risk the jury will give undue weight to the mere

existence of a similar accusation. Pelletier underscores that point. There, the Court found

the uncertain truth of the prior allegation part of what reduced its probative value and

heightened the risk of unfair prejudice. Pelletier, ¶¶ 25-28.

¶61 The majority does not adequately account for that problem. Instead, it effectively

assumes the truth of A.P.’s accusation in order to assign it probative value. Rule 403

requires a more disciplined inquiry.

C. Similarity alone cannot carry the State’s burden under Rule 403

¶62 There is no question A.P.’s and R.A.’s allegations shared notable similarities. Both

girls said they were brought into Adams’s home because their mothers could not care for

them; both were later adopted; both described abuse beginning when they were young;

29 both described oral, anal, and vaginal conduct; both said Adams’s wife was absent during

the abuse; and both described gifts and whiskey. Those similarities explain why the State

sought the evidence.

¶63 But similarity is not self-justifying. If similarity alone were enough, Rule 403

would do little work in child-sex cases, where the danger of unfair prejudice is already

unusually acute. Peterson expressly warns that child sexual abuse evidence is “highly

inflammatory.” Peterson, ¶ 22. The more similar the prior allegation, the more carefully

courts must guard against the jury’s use of the evidence for the impermissible inference:

if he did it before, he did it again.

¶64 The majority reasons that A.P’s allegations were not “more abhorrent” than the

charged conduct because the allegations were similar to R.A.’s. That observation does not

resolve the Rule 403 question. Evidence need not be more inflammatory than the charged

offense to be unfairly prejudicial. When the other act is nearly identical to the charged act,

the danger is different but equally serious: the jury may treat the prior accusation as direct

corroboration that the charged accusation is true. In that setting, similarity increases

probative value and propensity danger at the same time. Rule 403 requires courts to

account for both sides of that equation.

¶65 The majority also reasons that Adams’s general denial and false-memory defense

made A.P.’s testimony more probative. I agree that the defense theory matters. But it does

not answer the Rule 403 problem. When the State uses a remote, collateral accusation to

rebut a false-memory defense, the inference becomes especially dangerous. It heightens

the chance that the jury will decide that, because another alleged victim made a similar

30 accusation, this accusation must be true. That is not merely proof of intent or absence of

mistake. It is practical corroboration through propensity. A defendant does not forfeit

Rule 403 protection merely by denying the charge or by challenging the complaining

witness’s memory and credibility.

¶66 That danger was not theoretical here. In closing, the prosecutor argued the jury

could consider whether, “[w]hen faced with a decision of whether or not to agree to adopt

a young female, was it part of the defendant’s preparation or plan to, in fact, do that,

knowing that he had done it before and that he had benefited from sexually abusing

[A.P.]?” The State also stressed that Adams apologized to A.P. and “knew it was wrong.”

Although the State prefaced its argument with limiting-instruction language, the quoted

passage illustrates how readily the permitted “plan” theory merged into the forbidden

inference: because Adams allegedly did this before and benefited from it, the jury could

infer that he planned to do it again. Rule 403 exists to police precisely that risk.

¶67 This case therefore presents the narrow but important point that similarity can cut

both ways. Similarity may increase probative value, but it also increases the danger that

the jury will treat the prior allegation as direct proof of the charged allegation. When the

prior allegation is decades old, uncharged, unadjudicated, and unsupported by evidence of

a continuous course of conduct, similarity alone cannot complete the Rule 403 analysis.

D. The final limiting instruction did not adequately reduce the danger of unfair prejudice

¶68 I would not rest reversal on a separate ineffective-assistance holding, on the

admission of the search-history evidence, or on a categorical statement that current law

31 invariably requires a limiting instruction before other-acts evidence is presented.

M. R. Evid. 105 is request-based, and Salvagni altered prior practice. Adams did not

request a contemporaneous instruction before A.P. testified, and I do not treat the absence

of such an instruction as an independent unpreserved error.

¶69 But timing still matters under Rule 403 when the Court relies on the final instruction

to reduce the prejudice from the evidence. Here, Adams proposed the model limiting

instruction, but the jury received it only in the final charge, after it already had heard the

search-history evidence and A.P.’s testimony.1 Even if the absence of a contemporaneous

instruction is not independently dispositive after Salvagni, it is relevant to whether the final

instruction adequately reduced the danger of unfair prejudice from A.P.’s testimony.

¶70 The majority relies on the final instruction to conclude the risk of unfair prejudice

was reduced. But where the jury first heard the search-history evidence and then heard a

second adopted daughter accuse Adams of nearly identical abuse before receiving any

limiting instruction, the later admonition did not provide the same protection as a

contemporaneous instruction at the moment the evidence was received. Again, I do not

rely on the admission of the search-history evidence as error. The search-history evidence

matters here only because it was part of the evidentiary context in which the jury received

A.P.’s testimony before being given a limiting instruction. Once the jury heard a second

adopted daughter accuse Adams of nearly identical abuse, the later admonition could not

reliably eliminate the natural tendency to treat that accusation as corroboration of R.A.’s

1 The model instruction’s comment states that the instruction should be given twice—before the other-acts evidence and again in the final charge. 32 account. I make only the narrower point: the majority gives the final instruction more

curative force than it reasonably can bear in a credibility-dependent trial involving remote,

uncharged, and unadjudicated other-acts evidence.

¶71 I do not consider the search-history evidence or the absence of a contemporaneous

limiting instruction as separate claims of reversible error. Adams’s preserved claim is that

the District Court abused its discretion by admitting A.P.’s testimony under Rule 403. In

deciding that preserved question, we must examine the evidentiary setting in which the

jury received the testimony and the curative force the majority assigns to the final limiting

instruction. Evidence does not reach a jury in isolation. The prejudice inquiry necessarily

considers how the evidence was presented and how likely the jury was to use it for an

improper purpose.

IV. The authorities supporting admission are distinguishable; the authorities counseling exclusion are more on point

¶72 In sum, Given and Tecca do not support admission here. Given involved a shorter

gap, an admitted and adjudicated prior act the truth of which was not uncertain at the

admissibility stage, narrower non-propensity purposes, and a limiting instruction before

the sister testified. Given, ¶¶ 6, 25, 31, 33. Tecca involved a continuing pattern of similar

conduct leading up to the charged offense. Tecca, 220 Mont. at 172-73, 714 P.2d at 138-39.

This case is closer to Ray, Pelletier, and Peterson: Ray because the prior allegation was

remote and unsupported by continuity; Pelletier because the truth of the prior allegation

was uncertain and credibility was central; and Peterson because courts must take special

care with highly inflammatory child-sex-abuse evidence and the practical risk of propensity

33 reasoning. Ray, 267 Mont. at 133-34, 882 P.2d at 1016; Pelletier, ¶¶ 25-28; Peterson,

¶¶ 22-26.

V. The error was not harmless

¶73 The State cannot show there is no reasonable possibility A.P.’s testimony

contributed to the verdict. Van Kirk, ¶ 44. This was not a case with physical evidence

establishing sexual abuse. The State had circumstantial corroboration, most notably,

search-history evidence that Adams does not challenge on appeal. But that evidence does

not make A.P.’s testimony harmless. The jury still had to decide whether R.A.’s allegations

of the charged acts were true. The physical examination was normal. R.A. denied

inappropriate touching to her medical provider when specifically asked. Defense witnesses

testified they never observed signs of abuse, and the defense presented expert testimony

that false memories can occur. Although the State offered explanations why normal

examinations and delayed disclosure are common, that only underscores the point that the

jury’s verdict necessarily depended heavily on credibility.

¶74 In that context, testimony from another adopted daughter alleging materially similar

abuse decades earlier carried enormous corroborative force. That is especially true because

the State offered the evidence for mental state, motive, and plan, and then used it in closing

to argue that Adams’s decision to adopt a young female could be understood in light of

what he allegedly had done before. It did not merely supplement the State’s proof; it altered

the evidentiary landscape by telling the jury that this had happened before to another child

in substantially the same position. And the search-history evidence did not make A.P.’s

testimony cumulative. Search terms could support an inference about sexual interest,

34 knowledge, or intent. A.P.’s testimony supplied something qualitatively different: a live

witness who told the jury Adams had used the same familial relationship, the same

adopted-daughter role, the same opportunity created by an absent spouse, the use of

alcohol, and the same post-abuse gifts to commit nearly identical abuse many years before.

That evidence did not merely duplicate the search history. It gave the State a second

alleged victim whose testimony functioned as powerful corroboration of the charged

victim. There is, at minimum, a reasonable possibility that this evidence contributed to the

verdict. The State therefore cannot establish harmlessness.

VI. I would not reach ineffective assistance of counsel

¶75 Because I would reverse and remand for a new trial on the Rule 403 issue, I would

not decide Adams’s ineffective-assistance claim. That course is the narrower and more

disciplined one. The record is sufficient to resolve the evidentiary issue, and that issue

alone requires a new trial. By contrast, the ineffective-assistance claim raises additional

questions about counsel’s obligations regarding the timing of limiting instructions after

Salvagni and Rule 105 that need not be resolved to decide this appeal.

VII. Conclusion

¶76 The problem in this case is not that the State failed to articulate a permissible Rule

404(b) purpose. It did. The problem is that Rule 403 required the District Court to decide

whether the actual non-propensity value of the evidence justified the grave danger that the

jury would use a decades-old, uncharged, unadjudicated accusation as proof that Adams

committed the charged offenses.

35 ¶77 Because the evidence was extraordinarily remote, unsupported by continuity,

uncertain in its truth, and freighted with an exceptional risk of unfair prejudice, I would

hold that its probative value was substantially outweighed by the danger of unfair

prejudice. Because there is a reasonable possibility the evidence contributed to the verdict,

I would reverse and remand for a new trial. I therefore respectfully dissent.

/S/ KATHERINE M. BIDEGARAY

Justices Ingrid Gustafson and Laurie McKinnon join in the dissenting Opinion of Justice Katherine M. Bidegaray.

/S/ INGRID GUSTAFSON /S/ LAURIE McKINNON