09/14/2021
DA 20-0152
Case Number: DA 20-0152
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 235N
STATE OF MONTANA,
Plaintiff and Appellee,
v. FILED
DAVID JON KINDT, SEP 14 2021
Bowen Greenwood
Clerk of Supreme Court
Defendant and Appellant. State of Montana
APPEAL FROM: District Court of the Seventh Judicial District,
In and For the County of Richland, Cause No. DC 18-04
Honorable Katherine M. Bidegaray, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Haley Connell Jackson, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Janet Christoffersen, Richland County Attorney, Charity McLarty, Deputy
County Attorney, Sidney, Montana
Submitted on Briefs: August 18, 2021
Decided: September 14, 2021
Filed:
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by rnemorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause nurnber, and disposition shall be included in this
Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 David Jon Kindt appeals a final judgment and sentencing order from the
Seventh Judicial District Court, Richland County, convicting him of aggravated assault
and partner or family member assault (PFMA). We affirm.
¶3 On Decernber 14, 2017, Kindt and his girlfriend, Pamella Johnson (Johnson), had
an argument. As Johnson turned to leave, Kindt knocked her down and began kicking
and stomping her. Johnson was finally able to leave and drove herself to the hospital. At
the hospital, Dr. Dawn McCartney examined Johnson. Dr. McCartney's examination
revealed that Johnson had sustained a fractured nasal bone and a broken ankle, and that
Johnson had bruising and swelling on her face and abdomen. At the hospital, Johnson
was also interviewed by Sidney Police Department Officer Timothy Case about her fight
with Kindt. Johnson's interview with Officer Case was recorded on the body camera that
Officer Case was wearing.
Kindt was charged with the following crimes by Inforrnation:
Count 1 : Aggravated Assault, a felony, in violation of § 45-5-202, MCA; and
Count 2: PFMA, a rnisdemeanor, in violation of § 45-5-206, MCA. Trial was held on
October 16, 2019. At trial, the State sought to introduce the body camera recording of
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Johnson's interview with Officer Case. Kindt objected, arguing that the body camera
recording was hearsay. The State argued that the recording was not hearsay because
Johnson was available for cross-examination. The State also argued that the recording
was admissible under the following hearsay exceptions: M. R. Evid. 803(1) (present
sense impression), M. R. Evid. 803(2) (excited utterance), M. R. Evid. 803(3)
(then-existing mental, emotional, or physical condition), and M. R. Evid. 803(5)
(recorded recollection). The District Court overruled Kindt's objection and admitted the
video recording into evidence.
¶5 The State also introduced testimony from Stacey Indergard, a registered nurse at
Sidney Health Center. Indergard testified regarding the accuracy of several photographs
she took of Johnson's injuries on December 14. The State provided testimony from
Johnson regarding the events of December 14, and the severity of her injuries.
Dr. McCartney testified that her examination of Johnson revealed a nasal fracture, a
broken ankle, and some bruising and swelling on her face and abdomen. Dr. McCartney
testified that the injuries were consistent with Johnson's report that she was assaulted but
acknowledged on cross-examination that the injuries may have been caused by sornething
else. Kindt offered no evidence in rebuttal of Johnson's testimony and acknowledged
that he was guilty of PFMA. He denied beating Johnson in the manner she suggested and
instead argued that Johnson's continued relationship with Kindt indicated that Johnson
lacked credibility.'
1 We note that several obstacles can prevent an individual from leaving an abusive partner and
that the "danger of violence, including the risk of death, escalates when a domestic violence
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¶6 The jury found Kindt guilty of all counts. Kindt received a twenty-year sentence
with all but ten years suspended for his aggravated assault conviction and a one-year
sentence with all but twenty-four hours suspended for his PFMA conviction. The District
Court also ordered restitution and imposed a fine of $500.
¶7 Kindt appeals the District Court's admission into evidence of the recording of
Johnson's interview with Officer Case. Kindt argues that the District Court comrnitted
reversible error when it admitted the recording into evidence. The State concedes that the
District Court erred, but contends that, in light of the other evidence, such error was
harrnless.
¶8 A trial court's ruling on evidentiary matters is generally reviewed for an abuse of
discretion; however, to the extent the trial court's ruling is based on an interpretation of
an evidentiary rule or statute, the ruling is reviewed de novo. State v. Stewart,
2012 MT 317, 1123,
367 Mont. 503,
291 P.3d 1187.
¶9 Before we turn to Kindt's appeal, we must address two preliminary matters. First,
Kindt conceded to the PFMA charge at trial, and he does not appeal that conviction.
Second, the State correctly acknowledges that the video recording of Johnson's testimony
constituted hearsay. We adopt this concession and focus our analysis on the effect of the
District Court's error.
survivor attempts to leave a batterer." John M. Burman, Lawyers and Domestic
Violence: Raising the Standard,
9 Mich. J. Gender & L. 207, 221 (2003). See generally Deborah
Epstein & Lisa A. Goodman, Discounting Women: Doubting Domestic Violence Survivors'
Credibility and Dismissing their Experiences,
167 U. Pa. L. Rev. 399 (2019).
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¶10 We implement a two-step analysis to assess whether an error "prejudiced the
criminal defendant's right to a fair trial and is therefore reversible." State v. Van Kirk,
2001 MT 184, ¶ 37,
306 Mont. 215,
32 P.3d 735. The first step determines whether the
error is structural error or trial error. Van Kirk, ¶ 37. A structural error affects the
framework within which the trial proceeds, while a trial error typically occurs during the
presentation of a case to the jury. Van Kirk, 4111E 38, 40. Trial error may be reviewed for
prejudice relative to the other evidence introduced at trial and therefore is subject to
harmless error review. Van Kirk, ¶ 40. Here, the admission of the video recording of
Johnson's interview was trial error and thus subject to harmless error review.
¶11 The second step in the analysis determines whether the trial error was harmless
under the cumulative evidence standard. Van Kirk, in 43-44. To prove that an
evidentiary error was harrnless, the State must direct us to admissible evidence that
proved the same facts as the tainted evidence and demonstrate that the quality of the
tainted evidence was such that no reasonable possibility existed that it might have
contributed to the conviction. State v. Buckles,
2018 MT 150, ¶ 18,
391 Mont. 511,
420 P.3d 511.
¶12 No reasonable possibility exists that the video recording of Johnson's interview
contributed to Kindt's conviction. At trial, Johnson testified consistent with her recorded
interview. She testified that Kindt knocked her down, kicked her in the face, and
continued to kick her and stoinp on her until she felt her leg break. She testified that
Kindt continued assaulting her even after she begged hirn to stop because of her broken
leg. Dr. McCartney's testiinony corroborated Johnson's testimony. Dr. McCartney
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testified that Johnson's injuries included two broken bones in her lower leg and a broken
nasal bone, which were consistent with Johnson's testimony that she had been assaulted.
Dr. McCartney further testified that Johnson reported to her that her injuries came from
being thrown to the ground and kicked and punched several tirnes. The State also
introduced photographs of Johnson's injuries through Indergard. The State's admissible
evidence proved the same facts that the video recording contained. Our review of the
admissible evidence makes clear that, qualitatively, no reasonable possibility exists that
the tainted evidence contributed to Kindt's conviction.
¶13 The District Court erred in admitting the video recording of Johnson's interview.
However, given the cumulative effect of Johnson's in-court testimony, the photographs
authenticated through Indergard, and Dr. McCartney's testimony, such error was
harmless. Kindt's conviction for aggravated assault is affirrned.
¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review.
We Concur:
Chief Justice
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