State v. E. Gomez

2020 MT 73, 460 P.3d 926, 399 Mont. 376

• Court: Montana Supreme Court
• Decided: March 31, 2020
• Docket: DA 17-0470
• Status: Published

Opinion

03/31/2020

DA 17-0470 Case Number: DA 17-0470

IN THE SUPREME COURT OF THE STATE OF MONTANA 2020 MT 73

STATE OF MONTANA,

Plaintiff and Appellee,

v.

EMMANUEL F. GOMEZ,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 16-17 Honorable Karen S. Townsend, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Robin Meguire, Attorney at Law, Great Falls, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Brad Fjeldheim, Assistant Attorney General, Helena, Montana

Kirsten H. Pabst, Missoula County Attorney, Missoula, Montana

Submitted on Briefs: January 8, 2020

Decided: March 31, 2020

Filed:

cir-641.—if __________________________________________ Clerk Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Emmanuel F. Gomez appeals from the February 6, 2017 verdict of a Missoula

County jury, finding him guilty of one count of Partner or Family Member Assault

(PFMA), a misdemeanor violation of § 45-5-206(1)(a), MCA, and one count of Deliberate

Homicide, a felony violation of § 45-5-102, MCA. Gomez raises the following issues on

appeal:

1. Whether the District Court properly denied Gomez’s motion to sever the counts;

2. Whether the District Court abused its discretion when it excluded evidence of the victim’s drug use and denied Gomez’s motion for a new trial;

3. Whether the District Court abused its discretion admitting numerous out-of-court statements from the deceased victim; and

4. Whether Gomez is entitled to a new trial due to cumulative error.

¶2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 On January 13, 2016, the State charged Gomez with one count of PFMA as a

continuing course of conduct from January 1, 2015 through December 20, 2015, and one

count of deliberate homicide. Police arrested Gomez on December 24, 2015, for PFMA

after Charlie Wyrick was reported missing. After a four-day search, Wyrick’s frozen body

was found down a steep ravine off the side of the road in Pattee Canyon on December 27,

2015. She had a single stab wound to the chest. During an interrogation on December 28,

Gomez told detectives Wyrick’s death was an accident.

2 ¶4 Gomez filed numerous pretrial motions, including a motion to suppress his pretrial

confession, a motion to admit defense expert testimony regarding Gomez’s state of mind

at the time of the crime, a motion to sever the two counts, a motion to admit evidence of

the victim’s methamphetamine use, and a motion to exclude hearsay statements made by

the victim. Given his prior confession to detectives, Gomez indicated he would be pursuing

an accident defense in his pretrial motions. All of Gomez’s pretrial motions were argued

based on an accident defense.

¶5 The court addressed each of Gomez’s pretrial motions. First, determining Gomez

failed to meet his burden to demonstrate prejudice from their joinder, the court declined to

sever the charges. Regarding Gomez’s motion to allow expert testimony from a mental

health evaluator, opining on his state of mind at the time of Wyrick’s death, the court

determined that it would allow his evaluator to testify concerning her evaluation and

diagnosis of Gomez, but she could not testify about whether Gomez acted with purpose or

knowledge at the time of Wyrick’s death. Further, the court instructed that the evaluator

could not provide the jury with Gomez’s explanation of Wyrick’s stabbing and its

aftermath. Next, the court suppressed Gomez’s pretrial confession, determining officers

violated Gomez’s Fifth Amendment rights by interrogating Gomez on December 28

without the presence of counsel after Gomez had previously invoked his right to counsel

when detectives interrogated him about Wyrick’s whereabouts on December 24. The

court, however, determined the State could use Gomez’s statement as impeachment

evidence if Gomez took the stand.

3 ¶6 In response to Gomez’s motion to exclude hearsay testimony from the victim, the

State supplied the court with a spreadsheet outlining over one hundred out-of-court

statements from Wyrick it intended to elicit from its witnesses. At a brief hearing to discuss

the proffered testimony, both parties agreed the District Court would need to wait until trial

to rule on Gomez’s individual objections in the context of the testimony elicited. In a

pretrial order, the District Court outlined the framework it would use to rule on hearsay

objections during trial. Finally, on the day before trial, the court issued its order, denying

Gomez’s motion to admit evidence of the victim’s methamphetamine use. The court

explained the victim’s drug use was not a pertinent character trait and as such, the evidence

was improper character evidence and its probative value was substantially outweighed by

the danger of unfair prejudice.

¶7 The State called thirty-nine witnesses at trial, including various friends and family

members of Wyrick, Wyrick’s coworkers, six medical professionals, four of Gomez’s

roommates and a roommate’s girlfriend, officers and detectives involved in the case, as

well as the medical examiner who performed the autopsy, two lab technicians who tested

blood recovered from Gomez’s house and vehicle, and a records custodian from AT&T.

During trial, Gomez’s counsel indicated Gomez may pursue any of several different

defenses including Wyrick’s death was an accident, someone else was involved in her

killing, or the State failed to meet its burden of proof. In the end, the defense closed without

putting on any additional evidence and argued the State had failed to prove beyond a

reasonable doubt that Gomez had deliberately killed Wyrick.

4 ¶8 At trial multiple friends, family, and coworkers of Wyrick testified she first began

dating Gomez sometime in early 2015. They recounted that after she began dating Gomez,

she regularly had bruising on her face, neck, and arms, and she had bald patches on her

head, like chunks of her hair had been pulled out. Longtime friends and a cousin explained

that as Wyrick’s relationship with Gomez progressed, her contact with them substantially

decreased or ceased altogether. They described Wyrick as withdrawn and depressed after

she started dating Gomez. Maghan Radcliff, the girlfriend of Wyrick’s brother Maxwell

Straight, explained Wyrick was happy and bubbly when she first met her, but this changed

when she was around Gomez. Radcliff described one incident during the summer of 2015

in which she picked Wyrick up to go shopping and a white Toyota Avalon, which she

identified as one of Gomez’s two vehicles, followed them. She explained this occurred at

a time when Wyrick and Gomez were briefly broken up. She pulled into a gas station to

lose the vehicle. Later in the day, the same vehicle reappeared. She zigged and zagged

trying to lose the vehicle again.

¶9 Karen Fairclough, the store manager at Pattee Creek Market, testified she hired

Wyrick to work in the deli of Pattee Creek Market on September 12, 2015. Fairclough

noted that over the three months Wyrick worked at the market, her demeanor changed, and

she became quieter and kept to herself more. Other coworkers noted Wyrick’s demeanor

would change when Gomez came into the store. The deli supervisor Steven Weare testified

Gomez would hang around the market from time to time but would never interact with

anyone but Wyrick. He noticed Gomez hanging around especially on paydays. As soon

5 as paychecks were available, Wyrick would take a break and leave with Gomez, even if

she had just started her shift. He thought Wyrick seemed anxious when Gomez was in the

store, especially on paydays.

¶10 Fairclough and Weare testified Wyrick missed work at the end of October because

she had a concussion. Wyrick informed Fairclough she had fallen down some steps.

Wyrick told another coworker she had fallen in the driveway and a third coworker she had

slipped on some ice. Multiple coworkers testified they saw Wyrick with a black eye.

Wyrick visited the emergency room for her head injury on October 26, 2015, where she

saw Dr. Greg Kazemi. Dr. Kazemi testified Wyrick told him she had fallen and injured

her nose on the morning of October 25. Wyrick had a laceration over her nose and bruising

in both eyes. Dr. Kazemi testified he did not order an x-ray to determine whether Wyrick’s

nose was broken because the management of Wyrick’s injuries would be the same

regardless whether her nose was broken or not. Dr. Kazemi diagnosed her with a nasal

laceration and mild concussion. He explained a broken nose can cause two black eyes.

¶11 Dr. Kevin Eichhorn testified he saw Gomez in the emergency room on October 25,

2015—the date Wyrick reported to Dr. Kazemi as the day she had sustained her head

injuries. Gomez came into the emergency room with a hand injury. He told Dr. Eichhorn

he was working on his car the night before at 2 a.m. and the hood fell and slammed onto

his hand. Dr. Eichhorn diagnosed Gomez with a “boxer’s fracture.” Dr. Eichhorn

explained it is called a boxer’s fracture because the most common mechanism for the injury

6 is from punching something, but the injury could be consistent with a car hood slamming

on the hand.

¶12 Wyrick followed up with her family medicine physician, Dr. Katherine Krebsbach,

on October 30, 2015, with residual symptoms from her head injury. Wyrick told

Dr. Krebsbach she had hit her face on a staircase about a week prior and had gone into the

emergency room on October 26, 2015. Dr. Krebsbach explained Wyrick had scabbing over

the front of her nose, some bruising on her face, and was physically tired. Dr. Krebsbach

diagnosed Wyrick with post-concussive syndrome and provided her with a note to excuse

her from work. Dr. Krebsbach also saw Gomez on November 24, 2015, when he came in

for follow-up on his broken hand. Gomez told Dr. Krebsbach he had smashed it in the

hood of his car a month earlier. At the time, she did not know Gomez and Wyrick were in

a relationship and his explanation seemed consistent with his injury. Dr. Krebsbach

testified, however, looking back on the two injuries now gave her significant pause. She

explained that boxer’s fracture most commonly occurs when someone punches something

hard and Gomez’s injuries presented around the same time Wyrick injured her nose.

¶13 Fairclough testified she brought Wyrick to the emergency room on December 16,

2015. Wyrick showed up for her shift that day, but it soon became clear she was in too

much pain to work. Multiple coworkers testified they witnessed Wyrick curled up in pain,

moving slowly, and holding her ribs. At the emergency room, Wyrick first saw the triage

nurse, Bennet Holz. Wyrick told Holz her boyfriend had beaten her about an hour before.

Wyrick was in physical pain. She told Holz she wanted to make sure it was not life

7 threatening. Wyrick told Holz her boyfriend had struck, choked, and punched her and

kicked her in the ribs. Holz observed a mark on Wyrick’s neck like a strangulation or

ligature mark. Holz testified it was normal procedure to take a history of previous violence

in domestic violence cases so medical personnel can consider previous injuries and

potential further injury in deciding treatment and to aid providers in developing a plan and

recommendations for the patient. Holz encouraged Wyrick to let her call law enforcement,

but Wyrick declined, telling Holz she had a plan to get out of the relationship. Dr. Jessica

Suess was Wyrick’s treating physician in the emergency room that day. An x-ray showed

Wyrick to have a previous rib fracture that was healing, but no new rib fracture or

refracture. Radiologist Dr. Richard Dahlen, who read the x-ray, testified that given the

callous formation, the old fracture was at least four to six weeks old. Dr. Suess diagnosed

Wyrick with rib pain and a chest wall contusion. Dr. Seuss explained a rib injury could

still be painful even without a new fracture and would cause difficulty in breathing,

walking, and working. Wyrick declined to let Dr. Seuss call law enforcement. Dr. Seuss

called a social worker to talk to Wyrick.

¶14 Radcliff and Straight picked Wyrick up from the emergency room on December 16

and brought her back to their house. Wyrick lay on the bed at their house crying for several

hours. Later that evening or the next morning, Gomez came to their house and picked

Wyrick up and brought her back to his house.

8 ¶15 Fairclough and Weare testified Wyrick returned to work the next day. Weare

testified Wyrick last came to work on December 19, 2015, but failed to show up for her

next scheduled shift on December 21.

¶16 Radcliff and Straight testified Wyrick stayed the night at their house on

December 20, and while there, Gomez came over and Wyrick and Gomez argued outside.

Straight testified Gomez was trying to get Wyrick to come back with him. Straight

intervened telling Gomez, “I don’t know what’s going on but seems to me like she doesn’t

want to be with you anymore.” Gomez left. Radcliff and Straight testified Wyrick was

depressed and wanted out of the relationship with Gomez. Wyrick was sleeping on the

floor of their living room when they went to bed but was not there when they woke up the

next morning. She left behind her phone and gloves. A roommate’s daughter, who was

staying with Radcliff and Straight, testified Gomez arrived at the house early in the

morning on December 21 and Wyrick left with him. This was the last time any of them

saw Wyrick.

¶17 Four of Gomez’s five roommates testified at the trial. All four testified Gomez kept

to himself and they would see Wyrick in passing, but never really talked to her. Gomez’s

roommates each testified they would regularly hear Gomez and Wyrick fighting in

Gomez’s room. One roommate, Christopher Eckhoff, testified he would see Gomez and

Wyrick almost daily in passing. They would make food and go to their room. Eckhoff

explained that his room was directly below Gomez’s room. Eckhoff noticed an increase in

arguing and yelling from when he moved into the house in June or July 2015 until

9 December. He could not tell what Gomez and Wyrick argued about, because the arguments

always took place in Gomez’s room with the door closed. He would hear a lot of swearing

from Gomez and would sometimes hear things being thrown or loud noises like thumps.

Eckhoff had discussions with his other roommates about how the arguing was making them

uncomfortable because it was “getting so loud” and “out of proportion.” Eckhoff testified

he could hear a lot of anger and energy behind Gomez’s yelling, but did not hear the same

anger and energy in Wyrick’s responses.

¶18 Eckhoff testified he and his then-girlfriend, Hannah Kendall, woke to the sound of

arguing coming from Gomez’s bedroom on December 21, 2015, sometime around 9 a.m.

Eckhoff recognized the voices as Gomez and Wyrick. The fight escalated until Eckhoff

heard a loud scream and a crash or thump. Eckhoff testified: “Something was definitely

wrong. I had never heard anything like that before.” Kendall testified, “It was a scream

unlike I had ever heard.” Eckhoff testified he got up and started getting dressed because

he was frustrated about hearing fighting between Gomez and Wyrick and wanted to

confront Gomez. He did not go upstairs immediately, however, because Kendall was

worried about Eckhoff’s safety and insisted he wait for her before going upstairs. Eckhoff

testified that after Kendall got dressed, he went upstairs and knocked on Gomez’s bedroom,

but no one answered, and the door was locked. Kendall called him to the front door, and

he got there in time to see Gomez speeding out of the driveway in his black GMC Yukon.

Kendall testified she saw Gomez run out of the house when she and Eckhoff were coming

up the stairs. She went to the front door and saw him in his Yukon, reaching at something

10 in the backseat before speeding off. Kendall and Eckhoff went outside and both testified

they saw fresh blood on the front steps—which later tested positive for Wyrick’s DNA—

and blood in the snow where the Yukon had been parked. Kendall testified that upon going

back inside she saw a trail of blood from Gomez’s room door to the front door, “like if

someone’s having a nosebleed and they’re running and . . . it’s just continuously on the

ground.” Eckhoff contacted another roommate and said he wanted to call the police. That

roommate told him not to call because it would cause more problems than it would solve.

Eckhoff and Kendall did not call the police. Eckhoff and Kendall wrote and left a note on

Gomez’s bedroom door: “Not sure what is going on, but I would like an explanation of

what happened. Almost called the police. There’s blood everywhere. This is not the first

time I’ve woke to screaming and sounds of hitting and shoving. Please take a break.”

Eckhoff said he texted Gomez a similar message. Later that day, Gomez texted back

“Okay, I will.” Eckhoff got no further explanation from Gomez about what happened.

¶19 After writing the note, Kendall and Eckhoff went to Pattee Creek Market to

purchase ingredients for breakfast and see if Wyrick was working. They did not see

Wyrick. Store records showed they checked out at the market at 10:41 a.m. When they

returned home, the note had been removed from Gomez’s door and there was no blood in

the hallway. They did not see Gomez or Wyrick. Jeffrey Neubauer, another roommate,

testified he was also awoken by the argument between Gomez and Wyrick on

December 21, but went back to sleep. He testified the argument seemed more aggravated

than Gomez and Wyrick’s usual arguing, because they usually did not wake him. He later

11 heard a door slam. When he got up later, he talked to Eckhoff and Kendall about what they

heard. No other roommates were in the house that morning.

¶20 Dillon Moore, one of Wyrick’s deli coworkers, testified he grew worried when

Wyrick failed to show up for work several days in a row. As such, on December 24, 2015,

he and his mother, Sherrie Harguess, went to Gomez’s house to look for Wyrick. Harguess

and Moore testified Gomez was loading something into his Yukon in the garage when they

arrived, and his Avalon was running in the yard with its doors open. Harguess testified she

told Moore to stay in the car and she got out to confront Gomez, leaving the door of her

car open. Moore testified he could hear what Gomez said through the open door. Both

testified Harguess asked Gomez where Wyrick was and Gomez responded that Wyrick left

“[a]nd she ain’t comin’ back.” Harguess left and called 9-1-1 to report Wyrick as missing.

¶21 That day, the Missoula Police Department opened an investigation, assigning

Detective Stacy Lear as lead detective. Officers attempted to conduct a welfare check on

Wyrick at Gomez’s residence but could not locate her. Officers then reached out to

Wyrick’s family members and the emergency department staff who saw Wyrick on

December 19. Based on the information from the emergency room, Gomez was detained

and taken to the police station. At the station, Lear found screws in Gomez’s pocket that

matched the center console from his Yukon and a stain on his shoe that later tested positive

for Wyrick’s blood and DNA.

¶22 Officers obtained and executed a search warrant on Gomez’s residence. From their

search of the residence, officers recovered the top of the center console of Gomez’s Yukon

12 in his bedroom along with the note Eckhoff and Kendall had left on Gomez’s door.

Officers also found a pile of rags and other cleaning supplies in Gomez’s bathroom. One

of the rags tested positive for Wyrick’s blood and DNA. In Gomez’s Avalon, officers

recovered a receipt for the cleaning supplies, showing their purchase on December 22, as

well as a pile of blankets that appeared to have been freshly laundered. Officers later

recovered footage from Walmart of Gomez purchasing the cleaning supplies. From the

Yukon, officers recovered Wyrick’s wallet; additional cleaning supplies; a black duffle

bag; Marlboro cigarettes; a screwdriver; a letter postmarked November 4, 2015, with a

stain on the corner; and a flashlight with a stain on the handle. Officers observed stains on

the side of the center console and on the outside of the vehicle between the front and back

door of the passenger side of the vehicle. Part of the carpeting between the rear and front

seats had been cut out of the Yukon. The stains on the letter, flashlight, console, and

outside of the vehicle all tested positive for Wyrick’s blood and DNA.

¶23 Detective Katie Petersen testified she began working the case on December 24. As

part of the search for Wyrick on December 24, Petersen put in an emergency request to

AT&T to get all location data from Gomez’s phone going back to the morning of

December 21. She received an eight-page report with GPS coordinates. The coordinates

from 10:01 a.m. MST on December 21 placed the phone in Pattee Canyon near Deer Creek.

The report stated that accuracy was “likely better than 5,000 meters.” On the evening of

December 24, Detective Petersen met with Bill Burt from the Missoula County Sheriff’s

office and a couple of Forest Service officers in the Pattee Canyon recreation area.

13 Together they snowmobiled to the coordinates from the report, which brought them to a

cell phone tower. They looked around the area but did not find Wyrick and called off the

search because it was too dark to continue searching.

¶24 Burt and Petersen coordinated another search on December 27. Burt testified, in his

experience with the Missoula County Search and Rescue, coordinates from cell phone

providers often lead to that cell phone tower when the phones were actually located in an

area east and south of the tower. Based on this observation, the December 27 search

focused on that area, where Wyrick’s body was then recovered. The body was located

below a disturbance in a snow berm on the side of the road down a steep ravine. Officers

recovered packaging from Marlboro cigarettes and observed what looked like blood at the

side of the road above where Wyrick’s body was found. The body was not visible from

the road. Lear testified the body’s location was about an 11-minute drive from Gomez’s

residence.

¶25 In their searches, officers also collected and downloaded data from four cell phones.

Two were found in Gomez’s Yukon, one was taken from his person, and the fourth was

the cell phone Wyrick left at her brother’s house on the morning of December 21. The data

from the phones showed extensive texting between Wyrick and Gomez during their

relationship. On December 16, Gomez sent Wyrick messages begging her to come

back—“Charlie I know I’ve hurt you really bad but please.” On the night of December 20,

Wyrick and Gomez texted extensively, with Gomez alternating between apologizing to

Wyrick, telling her he loved her, and accusing Wyrick of leaving him. There was no more

14 activity from Wyrick’s phone after that night. Gomez texted Wyrick once at 1:29 p.m. on

December 21 and once more on December 23. In the days between December 21 and his

arrest on December 24, Gomez’s phone had internet searches for Missoula stabbings,

police scanner codes, and missing persons. Wyrick was not reported missing until

December 24.

¶26 Dr. Nikki Mourtzinos conducted Wyrick’s autopsy. Dr. Mourtzinos found a single

stab wound to the chest injuring the lung and left main bronchus. Dr. Mourtzinos found a

significant amount of blood—about 600 milliliters—in the left chest cavity. She explained

it would have taken some time for this amount of blood to accumulate. She also saw signs

of aspirating blood into smaller airways. From these findings, Dr. Mourtzinos opined

Wyrick had been alive for some period of time post injury. While Dr. Mourtzinos could

not determine how long Wyrick survived after being stabbed, she had seen footage of a

person with a lung injury survive four hours without medical treatment. Dr. Mourtzinos

testified she did not know if Wyrick could have survived the stab wound had she received

medical attention, but it was possible. In addition to the stab would, Dr. Mourtzinos also

found blunt force injuries to the torso along with 100 milliliters of blood in the abdominal

cavity, recent reinjury of a healing spleen injury, and a new rib fracture in the area of an

old rib fracture. She noted again that for 100 milliliters of blood to accumulate in the

abdominal cavity, Wyrick had to have survived for some period of time post injury.

Dr. Mourtzinos noted that while the stab wound was the main cause of death and would be

fatal on its own, the blunt force trauma injuries to the torso were a contributing cause of

15 death, because the injuries would have contributed to bleeding and breathing difficulty.

Dr. Mourtzinos further noted bruising across Wyrick’s torso, back, face, head, legs, and

arms all occurring before her death. She did not observe any defensive wounds.

Dr. Mourtzinos was not able to determine a day or time of death.

¶27 During trial, the District Court admitted additional out-of-court statements Wyrick

made to various friends, family, and coworkers, describing her relationship with Gomez

that Gomez challenges on appeal. This testimony is discussed in Issue 3 below.

¶28 Gomez repeatedly re-raised his prior motion to use evidence of Wyrick’s drug use

during trial, arguing the State opened the door by entering evidence of Wyrick’s change in

behavior and physical appearance, such as Wyrick’s hair loss and bruises on her arms. The

District Court continued to exclude the evidence but allowed Gomez to file a proffer of the

testimony he expected witnesses would give about Wyrick’s drug use.

¶29 After the eight-day trial, the jury found Gomez guilty of both charges. On the

homicide conviction, the District Court sentenced Gomez to life in prison without the

possibility of parole. On the PFMA conviction, the court sentenced Gomez to one year of

time served to run consecutive with his sentence for homicide. Gomez appeals.

DISCUSSION

¶30 1. Whether the District Court properly denied Gomez’s motion to sever the counts.

Standard of Review

¶31 We review de novo whether counts were properly joined in an information. State

v. Kirk, 2011 MT 314, ¶ 10, 363 Mont. 102, 266 P.3d 1262. The defendant has the burden

16 to prove that counts were misjoined. State v. Freshment, 2002 MT 61, ¶ 22, 309 Mont.

154, 43 P.3d 968.

¶32 We review the denial of a motion to sever counts into separate trials based on unfair

prejudice for an abuse of discretion. Kirk, ¶ 10. A defendant seeking to sever counts into

separate trials has the burden of proving severing the counts is necessary to prevent unfair

prejudice. Freshment, ¶ 26. The trial court must balance possible prejudice to a defendant

against the judicial economy resulting from holding a joint trial. Kirk, ¶ 11. Abuse of

discretion occurs when the trial court fails to properly weigh the prejudice against the

judicial economy resulting from a joint trial. Freshment, ¶ 27.

Analysis

¶33 Gomez challenges the District Court’s denial of his motion to sever the two counts.

Gomez maintains the counts were inappropriately joined because the acts of domestic

violence relevant to the PFMA charge were not contemporaneous in time and place with

the act of deliberate homicide and a person who commits acts of domestic violence does

not necessarily have a scheme or plan to kill the victim. Gomez further argues that, even

if properly joined, severing the counts was necessary to prevent unfair prejudice. He argues

joinder of the counts prejudiced him because evidence of Gomez’s prior abuse of Wyrick

would not have been admissible in a separate trial for homicide and he would likely have

testified on his own behalf in a separate trial on the homicide charge.

¶34 To succeed on a motion to sever counts, a criminal defendant must prove either the

counts were misjoined under § 46-11-404(1), MCA, or severing the counts under

17 § 46-13-211(1), MCA, is necessary to prevent unfair prejudice against the defendant. Kirk,

¶ 10. Section 46-11-404(1), MCA, allows joinder of offenses when they “are of the same

or similar character or are based on the same transactions connected together or constituting

parts of a common scheme or plan.” Joining two charges is proper when “the charges are

logically linked by motive and where overlapping proof must be offered.” State v.

Southern, 1999 MT 94, ¶ 23, 294 Mont. 225, 980 P.2d 3. Section 46-13-211(1), MCA,

requires severance of properly joined counts, however, if the defendant proves the

prejudice caused by the joinder of the counts is so great as to prevent a fair trial. Kirk, ¶ 10.

It is not enough to show the defendant faces some prejudice or that the defendant would

stand a better chance of acquittal if separate trials are held. Kirk, ¶ 10. The court must

consider three types of possible unfair prejudice: (1) whether the accumulation of evidence

may lead a jury to find the defendant is a bad person and wish to convict the defendant of

something; (2) whether a jury might use evidence of guilt on one count to convict on

another count, even though the evidence would be inadmissible at a separate trial on the

latter count; and (3) whether the defendant may suffer prejudice by wanting to testify on

one count and not another. Freshment, ¶ 27.

¶35 We disagree with Gomez that the two counts were not properly joined under

§ 46-11-404(1), MCA. The PFMA and homicide counts arose out of an ongoing pattern

of physical abuse perpetrated against Wyrick by Gomez. Gomez’s acts of violence against

Wyrick, including his acts leading to her ultimate death, “are explainable as a result of the

same motive.” State v. Dist. Court of Eighteenth Judicial Dist., 2010 MT 263, ¶ 59,

18 358 Mont. 325, 246 P.3d 415. Gomez’s physical abuse of Wyrick and her death during

their final altercation are logically linked by the same motive—to control Wyrick. Given

this ongoing pattern and motive, proof of the PFMA and homicide counts requires

testimony from substantially the same witnesses. The charges were properly joined as parts

of a common scheme or plan. See Southern, ¶ 23.

¶36 Further, Gomez has failed to prove he was deprived of a fair trial due to the joinder

of the two counts. First, Gomez failed to demonstrate that evidence of prior acts of PFMA

against Wyrick would be inadmissible in a separate trial for homicide.1 Gomez cannot

demonstrate evidence of Gomez’s prior abuse of Wyrick would have been categorically

excluded from a separate trial for homicide. For example, there are valid theories of

admissibility for such evidence under M. R. Evid. 404(b). See, e.g., Dist. Court of the

Eighteenth Judicial Dist., ¶¶ 58-61. In District Court of the Eighteenth Judicial District,

the defendant sought to categorically exclude evidence of her prior abuse of the victim in

a homicide trial, claiming such to be inadmissible prior bad acts evidence excluded by

Rule 404(b). Dist. Court of Eighteenth Judicial Dist., ¶ 57. That defendant contended the

State could not use other acts evidence to show lack of accident because she was not raising

a defense of accident. Dist. Court of Eighteenth Judicial Dist., ¶ 61. We held, however,

1 Gomez broadly argues the evidence of Gomez’s prior abuse would not be admissible in a separate homicide trial. He specifically cites the admission of out-of-court statements from Wyrick of threats Gomez made to her about future acts in the area where her body was eventually found as particularly prejudicial. We address here Gomez’s general assertions that evidence of his prior abuse of Wyrick would not be admissible and discuss Gomez’s more specific challenge to the admission of out-of-court statements from Wyrick in Issue 3. 19 that the defendant had suggested to authorities the death was accidental and concluded the

State could introduce evidence of prior victim mistreatment “in order to rebut this

implication.” Dist. Court of Eighteenth Judicial Dist., ¶ 61. We further explained the prior

abuse may also be admissible as “evidence[ of] the existence of a motive” under Rule

404(b):

the motive is cause, and the charged and uncharged acts are effects; that is, both acts are explainable as a result of the same motive. The prosecutor uses the uncharged act to show the existence of the motive, and the motive in turn strengthens the inference of the defendant’s identity as the perpetrator of the charged act.

Dist. Court of the Eighteenth Judicial Dist., ¶ 59 (footnote omitted). Given this precedent,

Gomez has not established evidence of his prior abuse of Wyrick would categorically be

inadmissible in a separate homicide trial and thus failed to carry his burden of proving he

was prejudiced by the joinder of the charges. At trial, the State alleged Gomez had a motive

to control Wyrick, leading to an ongoing pattern of physical abuse, which culminated in

Wyrick’s death. Under this theory, evidence of Gomez’s prior abuse of Wyrick would not

categorically be precluded from admission under Rule 404(b).

¶37 Finally, Gomez failed to prove his right against self-incrimination was compromised

because he wanted to testify to one charge and not the other. The defendant has the burden

of proving joinder of the charges confounded his defense by compromising his privilege

against self-incrimination. In his pretrial motion to sever, Gomez did not assert he wanted

to testify on his own behalf as to the homicide count, but not the PFMA count. Before this

Court, Gomez provides only self-serving statements he would have testified in a separate

20 trial for the homicide charge. This assertion is not sufficient to show prejudice. State v.

Martin, 279 Mont. 185, 197, 926 P.2d 1380, 1388 (1996).

¶38 The District Court did not abuse its discretion in denying Gomez’s motion to sever

the counts.

¶39 2. Whether the District Court abused its discretion when it excluded evidence of the victim’s drug use and denied Gomez’s motion for a new trial.

¶40 We review a district court’s evidentiary rulings for an abuse of discretion. State v.

Hardman, 2012 MT 70, ¶ 8, 346 Mont. 361, 276 P.3d 839. A district court’s denial of a

motion for a new trial is reviewed for an abuse of discretion. State v. Brummer, 1998 MT

11, ¶ 49, 287 Mont. 168, 953 P.2d 250.

¶41 Gomez argues the District Court abused its discretion when it excluded evidence of

Wyrick’s drug use. Gomez contends Wyrick’s drug use was relevant as an alternate

explanation for her behaviors and accounts for some of her injuries and was admissible

under M. R. Evid. 403 and 404. Gomez maintains that regardless whether the evidentiary

rules barred evidence of Wyrick’s drug use as a matter of law, the District Court erred in

denying his motion for a new trial because its ruling to exclude evidence of Wyrick’s drug

use on the eve of trial severely hampered his ability to rebut and refute the charges against

him.

¶42 Evidence of a person’s character trait “is not admissible for the purpose of proving

action in conformity therewith on a particular occasion,” excepting 21 [e]vidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case or in an assault case where the victim is incapable of testifying to rebut evidence that the victim was the first aggressor.

M. R. Evid. 404(a). Evidence that is admissible under Rule 404, however, may still be

excluded under Rule 403 “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.”

¶43 While Gomez contends Wyrick’s drug use was a pertinent character trait to explain

her behaviors and her injuries, he has not explained how Wyrick’s use of

methamphetamine provides an alternate explanation of her injuries. Gomez proffered no

evidence connecting Wyrick’s drug use to her change in behavior and injuries: None of

the proffered testimony stated Wyrick acted differently while using methamphetamine or

was more prone to being injured by stabbing while using methamphetamine. Further,

Gomez does not explain how the victim’s drug use rebuts the State’s case that Gomez

intentionally and deliberately injured the victim on multiple occasions and stabbed her,

causing her death. Thus, we can only conclude Gomez relies on speculation, not inference,

to connect Wyrick’s drug use to her injuries and death. We conclude Wyrick’s drug use

was not a pertinent character trait.

¶44 None of the federal cases cited by Gomez support his position. The three homicide

cases Gomez cites involved admitting evidence that demonstrated the defendant’s

knowledge of the victim’s prior violent acts. See United States v. Garcia, 729 F.3d 1171,

22 1178-79 (9th Cir. 2013); United States v. Saenz, 179 F.3d 686, 688-89 (9th Cir. 1999);

United States v. James, 169 F.3d 1210, 1214-15 (9th Cir. 1999). Gomez proffered no

testimony that Wyrick was violent, whether she was on methamphetamine or not. The

other two federal cases Gomez cites are not criminal cases, but civil suits, alleging

excessive force by police officers. In those two cases, the courts admitted evidence that

the deceased were on drugs at the time of their deadly encounters with police to explain

the victims’ behavior at the time of the incidents in question. See Boyd v. City & Cty. of

San Francisco, 576 F.3d 938, 949 (9th Cir. 2009); Alegrett v. City & Cty. of San Francisco,

No. 12-cv-05538-MEJ, 2014 U.S. Dist. LEXIS 65205, at *3 (N.D. Cal. May 9, 2014). In

contrast, Gomez sought to introduce evidence of Wyrick’s general drug use “to offer

another explanation for the State’s allegations against Gomez.” Gomez claims Wyrick’s

drug use provides an alternate explanation for her behaviors and injuries, but again

proffered no evidence connecting Wyrick’s drug use to her change in behavior and injuries.

Gomez also asks us to adopt a broader “context exception” to Rule 404(b), citing two

out-of-state cases. On this record, we decline to do so.

¶45 Wyrick’s drug use provided little probative value to explain her behavior and minor

bruising and no probative value to explain her most serious injuries that resulted in multiple

visits to the emergency room and her ultimate death by stabbing. The unfair prejudice of

painting Wyrick as a drug user to inflame the jury against her, however, was high. The

District Court did not abuse its discretion in concluding evidence of Wyrick’s

methamphetamine use was barred by M. R. Evid. 403 and 404, because it was not a

23 pertinent character trait and its probative value was substantially outweighed by the danger

of unfair prejudice. Evidence of Wyrick’s drug use is not admissible to invite the jury to

speculate about other causes for her injuries, without providing any evidence—direct or

circumstantial—to support those speculations.

¶46 Finally, we reject Gomez’s argument the District Court abused its discretion in

denying his motion for a new trial. A district court may order “a new trial if required in

the interest of justice.” Section 46-16-702, MCA. The District Court’s ruling, which

properly excluded inadmissible character evidence, was not unfair to Gomez. Thus, the

District Court did not abuse its discretion in denying Gomez’s motion for a new trial.

¶47 3. Whether the District Court abused its discretion admitting numerous out-of-court statements from the deceased victim.

¶48 We review the district court’s evidentiary rulings for an abuse of discretion. State

v. Colburn, 2018 MT 141, ¶ 7, 391 Mont. 449, 419 P.3d 1196. A court abuses its discretion

if it acts arbitrarily without conscientious judgment or exceeds the bounds of reason.

Colburn, ¶ 7.

¶49 Gomez challenges the admission of various out-of-court statements attributed to

Wyrick at trial. Gomez challenges all the statements admitted at trial over objection as

cumulative error generally, but specifically challenges the District Court’s admission of

statements purporting to convey Wyrick’s state of mind under M. R. Evid. 803(3) and State

24 v. Lossen, 262 Mont. 342, 865 P.2d 255 (1993).2 Gomez argues that evidence of Wyrick’s

state of mind was not relevant because he did not raise a self-defense or accident defense

at trial. He maintains Wyrick’s fear was not relevant because any actions constituting

retaliation or initial violence toward him are not an issue in the case, and the prejudicial

dangers of the out-of-court statements was great.

¶50 The State sought to admit over one hundred out-of-court statements Wyrick made

to friends, family, co-workers, and medical personnel.3 The court refused to admit many

of the statements but admitted a substantial number of Wyrick’s statements as nonhearsay

or as an exception to the hearsay rule. As Gomez points out, many of these statements

were admitted as evidence of Wyrick’s state of mind, either under Rule 803(3) or State v.

Lossen. Gomez specifically cites testimony from eight witnesses in his brief. The specified

statements generally fall into one of several categories: statements that Wyrick was afraid

of Gomez; statements about her plan to leave Gomez and move back to Helena; statements

describing her injuries and Gomez’s abuse; statements that Gomez threatened to kill her if

2 In his reply brief, Gomez asserts his challenge is not limited to out-of-court statements regarding state of mind, but he challenges all out-of-court statements admitted at trial over objection, both individually and cumulatively. He provides no legal argument or citation, however, to support his contention the District Court abused its discretion in admitting hearsay statements under any other theory. We decline to develop legal arguments for him. See Johnston v. Palmer, 2007 MT 99, ¶ 30, 337 Mont. 101, 158 P.3d 998 (“[I]t is not this Court’s obligation to conduct legal research on behalf of a party, to guess at his or her precise position, or to develop legal analysis that may lend support to that position.”). Thus, we limit our analysis to Gomez’s challenge to out-of-court statements admitted as evidence of Wyrick’s state of mind. 3 Gomez does not challenge the admission of Wyrick’s out-of-court statements to medical personnel on appeal.

25 she ever left him; statements that Gomez threatened to kill her and dispose of her body in

Pattee Canyon; and statements that male colleagues should not talk to her because Gomez

was jealous.4

¶51 This Court explained in State v. Lossen that out-of-court statements may

demonstrate the declarant’s state of mind either directly or indirectly. Lossen, 262 Mont.

at 348, 865 P.2d at 259. A statement that indirectly reveals the declarant’s state of mind

not entered for the truth of the matter asserted, is not hearsay, is not subject to the rule

against hearsay, and may be admissible when the declarant’s mental state is a material issue

in the case. For example, a statement that circumstantially indicates a specific state of

mind, such as “X is no good” may be admissible to demonstrate the speaker’s dislike of X

rather than to prove a quality of X. A jury’s consideration of such a statement, however,

is limited to its probative value in determining the speaker’s state of mind and not as direct

proof of the assertion made in the statement. See Lossen, 262 Mont. at 348-49, 865 P.2d

at 259; see also 6 John Henry Wigmore, Evidence in Trials at Common Law § 1790, 320

(Chadbourn rev. 1976) (“The assertion, if in form there is one [in a statement admitted as

circumstantial evidence of the declarant’s state of mind], is to be disregarded, and the

indirect inference alone regarded. This discrimination, though well accepted in law, is easy

to be ignored, and it needs to be emphasized.”).

4 The State points out that some of the specific statements Gomez cites were not admitted as state of mind evidence, but as an excited utterance under Rule 803(2) or a present sense impression under Rule 803(1). We limit our analysis to statements admitted as evidence of Wyrick’s state of mind.

26 ¶52 When a statement directly reveals the declarant’s state of mind—such as the

statement “I hate X” to show the speaker’s dislike of X—that statement is entered for the

truth of the matter asserted and is hearsay. For these statements, Rule 803(3) provides an

exception to the general prohibition against hearsay and allows a court to admit “[a]

statement of the declarant’s then-existing state of mind, emotion, sensation, or physical

condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but

not including a statement of memory or belief to prove the fact remembered or believed.”

The Commission Comments to M. R. Evid. 803(3) explain this exception “allows hearsay

statements to prove state of mind from which future actions of the declarant may be

inferred” but “the state of mind exception is not allowed to be used to infer past actions of

the declarant.” Committee Comments to M. R. Evid. 803 (citing Advisory Committee’s

Note to Fed. R. Evid. 803, 56 F.R.D. 183, 305 (1972)). “[T]o avoid the virtual destruction

of the hearsay rule,” Rule 803(3) specifically excludes “statements of memory to prove the

fact remembered or believed” so that statements admitted under Rule 803(3) do not “serve

as the basis for an inference of the happening of the event which produced the state of

mind.” Commission Comments to M. R. Evid. 803 (quoting Advisory Committee’s Notes

to Fed. R. Evid. 803, 56 F.R.D. 183, 305 (1972)). In other words, to prevent the exception

from swallowing the rule, Rule 803(3) permits courts to admit out-of-court statements that

27 directly reveal the declarant’s state of mind, but excludes the parts of those statements that

explain the external circumstances that caused that state of mind.5

¶53 Thus, whether admitted as indirect or direct evidence of the declarant’s state of

mind, the statements are admitted for a limited purpose. Out-of-court statements revealing

a victim’s fear of the defendant when the victim is unavailable to testify raise special

concerns, due to the potential prejudice that jurors will use the evidence to make

impermissible inferences beyond the limited scope for which the evidence was admitted.6

Whether admitted as nonhearsay or as an exception to the hearsay rule under Rule 803(3),

“[t]he threshold requirement of admissibility of such [out-of-court] statements of fear of

defendant in homicide cases is some substantial degree of relevance to a material issue in

5 This makes sense because exceptions to the hearsay rule are justified by necessity and circumstantial guarantees of trustworthiness. But [s]tatements of the external circumstances causing the injury, namely, the events leading up to it, the immediate occasion of it . . ., or the nature of the injury . . ., do not satisfy the necessity principle, because they do not relate to an internal state, and thus other evidence is presumably available; moreover they have not the usual condition of trustworthiness, because they are not naturally called forth by present pain or suffering. 6 John Henry Wigmore, Evidence in Trials at Common Law § 1722, 118 (Chadbourn rev. 1976). 6 For this reason, we have explained that all evidence admitted to show the declarant’s state of mind, whether as nonhearsay or under the hearsay exception of Rule 803(3), must be accompanied with a limiting instruction from the court, explaining the limited use of testimony to show the declarant’s state of mind. See State v. Fuhrmann, 278 Mont. 396, 407, 925 P.3d 1162, 1169 (1996) (“To prevent any potential prejudicial effect on a defendant, and to uphold the integrity of both the hearsay rule and Rule 803(3)’s ‘state of mind’ exception, a trial court must instruct the jury as to the limited purpose for which it may consider this type of testimony. However, both the trial court and this Court must keep a vigilant eye toward the possible prejudicial effect of such testimony even if a limiting instruction is given.”), overruled on other grounds by State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d 735. Although unchallenged on appeal, it is clear from the record the District Court failed to give appropriate limiting instructions to the jury about Wyrick’s out-of-court statements admitted to prove her state of mind. 28 the case.” State v. Magruder, 234 Mont. 492, 496, 765 P.2d 716, 719 (1988) (quoting

United States v. Brown, 490 F.2d 758, 767 (D.C. Cir. 1973)). The relevance of the evidence

must be considered against the danger the jury will misuse the testimony.

¶54 Gomez’s argument focuses on whether Wyrick’s state of mind was relevant to a

material issue in the case because, unlike the defendant in Lossen, he did not argue he acted

in self-defense or that Wyrick’s death was an accident. The State maintains Wyrick’s state

of mind was relevant, nonetheless. The State’s theory of the case was that Gomez’s motive

was to control Wyrick through fear and violence and this ultimately led to her death. Under

this theory, Wyrick’s fear is relevant as evidence of Gomez’s motive to control her.

¶55 After reviewing the record in this case, we conclude the District Court abused its

discretion in admitting Wyrick’s out-of-court statements to prove she feared Gomez,

because the danger of jury misuse of the evidence far outweighed any relevance of the

evidence to a material issue in the case.7 The State’s proposed path of relevance is a

circuitous route: Wyrick’s fear was proof of Gomez’s motive to control her, and his motive

to control her made it more likely that he in fact committed PFMA against her and killed

her. Even the prosecution did not bother to follow this chain of logic, repeatedly using

Wyrick’s statements as direct proof of Gomez’s abuse in its closing argument. The State’s

theory of relevance for Wyrick’s state of mind “bears only a remote or artificial relationship

to the legal or factual issues raised in the case” and the evidence is thus inadmissible.

7 Out-of-court statements from Wyrick that she was in physical pain or that she had a plan to leave Gomez were admissible under Rule 803(3) and do not raise the same concerns as her statements entered to show her fear of Gomez. 29 Brown, 490 F.2d at 774. The District Court abused its discretion in admitting Wyrick’s

out-of-court statements as evidence of her state of mind.

¶56 The District Court’s error, however, does not require automatic reversal. We will

not reverse the District Court if the error was harmless.

In order to prove that trial error was harmless, the State must demonstrate that there is no reasonable possibility that the inadmissible evidence might have contributed to the conviction. To do this, the State must demonstrate that the fact-finder was presented with admissible evidence that proved the same facts as the tainted evidence and, qualitatively, by comparison, the tainted evidence would not have contributed to the conviction.

State v. Van Kirk, 2001 MT 184, ¶ 47, 306 Mont. 215, 32 P.3d 735.

¶57 Here, we conclude admission of Wyrick’s out-of-court statements was harmless in

light of the overwhelming substantial evidence presented in addition to these statements.

Here, there is no reasonable possibility the evidence at issue might have contributed to

Gomez’s conviction of either PFMA or homicide, because all the evidence admitted

through Wyrick’s out-of-court statements was cumulative. The State elicited testimony

from multiple witnesses that when Gomez was around, Wyrick’s demeanor would change

and she would not talk to male colleagues, demonstrating her fear of him. The State

presented testimony from medical personnel, detailing injuries Wyrick received in October

and shortly before her death. Gomez’s roommates testified to regularly hearing fighting

between Gomez and Wyrick in Gomez’s room and would hear things being thrown and

loud thumps. Three witnesses heard Gomez and Wyrick fighting on the last morning she

was seen. Two of those witnesses described hearing a loud scream unlike any they had

heard before and a loud thump, before silence fell. Those witnesses observed Gomez 30 running out to his vehicle and speeding away from the house while holding something

down in the backseat. They observed blood in the hallway, the front steps, and next to

where Gomez’s vehicle had been parked. The blood on the front steps was determined by

DNA testing to be Wyrick’s. Police found Wyrick’s blood in Gomez’s vehicle and

evidence of an attempted clean up, including pictures of Gomez purchasing cleaning

supplies the day after Wyrick’s disappearance and bloody rags in his car and shower.

Straight testified he told Gomez on December 20 that Gomez should leave because it did

not seem like Wyrick wanted to be with him anymore, and Gomez’s text messages from

that night show he accused Wyrick of leaving him. Wyrick was last heard from the next

morning while fighting with Gomez. Records from Gomez’s wireless provider placed

Gomez’s phone in Pattee Canyon on the morning of Gomez and Wyrick’s last argument

and this location information led law enforcement to her body. Wyrick’s autopsy revealed

she had been stabbed and her lung was perforated. The jury was presented with admissible

evidence that provided the same facts as the evidence admitted to show Wyrick’s state of

mind. Our review of the admissible evidence makes clear that, qualitatively, there is no

reasonable possibility the tainted evidence might have contributed to Gomez’s conviction.

¶58 4. Whether Gomez is entitled to a new trial due to cumulative error.

¶59 Gomez argues he is entitled to a new trial due to the cumulative effect of errors

during his trial. In addition to the three issues discussed above, Gomez argues the District

Court erred in admitting out-of-court statements from Wyrick other than to demonstrate

her state of mind, excluding his expert’s testimony as to his state of mind, denying a mistrial

31 for discovery violations, admitting evidence from cell phone tower records, admitting

prejudicial photos of Wyrick, and refusing to instruct the jury on negligent homicide and

an alternative definition of reasonable doubt proposed by Gomez. Gomez provides no legal

argument or citation for these additional assignments of error.

¶60 We will reverse a conviction under the doctrine of cumulative error when the

number of errors, taken together, prejudice a defendant’s right to a fair trial. State v.

Flowers, 2004 MT 37, ¶ 46, 320 Mont. 49, 86 P.3d 3. The defendant bears the burden of

proving the existence of prejudice. Flowers, ¶ 46. This Court, however, will not “consider

allegations of error which are devoid of argument or authority supporting the defendant’s

contentions.” Flowers, ¶ 47.

¶61 We will not consider Gomez’s assignments of error that lack any legal support.

Gomez provided argument and authority for only three of his assignments of error. As

discussed above, the court erred in admitting some of Wyrick’s out-of-court statements,

but such error was harmless. Thus, we find no grounds to apply the doctrine of cumulative

error in this case. See Flowers, ¶ 47; Hardman, ¶ 9.

CONCLUSION

¶62 The verdict against Gomez is affirmed.

/S/ INGRID GUSTAFSON

We concur:

/S/ MIKE McGRATH /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON 32