11/04/2025
DA 22-0473
Case Number: DA 22-0473
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 250
STATE OF MONTANA,
Plaintiff and Appellee,
v.
PHILIP BRYSON GRIMSHAW,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. ADC-16-701
Honorable David J. Grubich, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Tammy A. Hinderman, Appellate Defender Division Administrator,
Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Brad Fjeldheim, Assistant
Attorney General, Helena, Montana
Joshua A. Racki, Cascade County Attorney, Ryan C. Ball, Michele Levine,
Deputy County Attorneys, Great Falls, Montana
Submitted on Briefs: September 3, 2025
Decided: November 4, 2025
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Appellant Philip Bryson Grimshaw appeals the Judgment issued by the Eighth
Judicial District Court, Cascade County on July 7, 2022, following his conviction of Sexual
Intercourse Without Consent, a felony, in violation of § 45-5-503, MCA. We restate and
address the following dispositive issues:
Issue 1: Whether the District Court abused its discretion by allowing the
State to recall an expert witness who violated an exclusion order.
Issue 2: Whether the District Court violated Grimshaw’s due process rights
by increasing his sentence after retrial.
¶2 We affirm in part, reverse in part, and remand with instructions to amend
Grimshaw’s sentence in accordance with this Opinion.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 A jury convicted Grimshaw of sexual intercourse without consent on September 7,
2017. Grimshaw was sentenced to 40 years in the Montana State Prison (MSP) with 20
years suspended. Grimshaw appealed and we reversed his conviction and remanded for a
new trial because the District Court had allowed the State to introduce inadmissible
statistical evidence. See generally State v. Grimshaw, 2020 MT 201,
401 Mont. 27,
469
P.3d 702. The facts underlying Grimshaw’s conviction are fully set forth in our prior
opinion.
¶4 Grimshaw was placed in custody following his conviction in September 2017. In
September 2020, Grimshaw was released on bail following the reversal of his conviction
2
on appeal. While out on bail, Grimshaw returned to work in the food service industry and
cared for his ill mother.
¶5 The case was retried in November 2021. The parties’ respective theories of the case
at the second trial did not substantially deviate from their theories presented at the first
trial. Except for the testimony that we had ruled inadmissible in the first appeal, the
evidence each party presented at the second trial remained largely the same.
¶6 As it did in the first trial, the State again called Dr. Sherri Vanino as a blind expert
witness. Dr. Vanino testified about the behaviors exhibited by sexual assault victims, but
she did not offer any opinions based on the specific facts of this case. Dr. Vanino explained
the misunderstandings that the general population has about what is or what is not normal
behavior for a sexual assault victim. Dr. Vanino labeled the misunderstandings people
have as “rape myths” and repeatedly referred to the misconceptions as “myths” during her
testimony.
¶7 Grimshaw called a blind expert witness, Dr. Donna Zook, who also testified about
sexual assault victim behavior. Dr. Zook questioned the studies Dr. Vanino relied upon to
form her opinions and explained that trauma behavior, reporting sexual assault or not
reporting sexual assault, and other behaviors a victim may exhibit do not necessarily prove
a person has been sexually assaulted.
¶8 Dr. Vanino remained in the courtroom during Dr. Zook’s testimony. After
Grimshaw rested his case-in-chief, the State sought to recall Dr. Vanino as a rebuttal
witness. Grimshaw objected based on the District Court’s pre-trial ruling excluding any
3
witnesses who were expected to testify from being in the courtroom during other witnesses’
testimony. The District Court overruled Grimshaw’s objection. The District Court
concluded that M. R. Evid. 615(3) prohibits a trial court from excluding expert witnesses.
¶9 In her rebuttal testimony, Dr. Vanino testified regarding the studies she relied upon
to form her opinions and reiterated her testimony about the behaviors exhibited by sexual
assault victims. Dr. Vanino testified that the “regrettable sex defense” is the belief that
some sexual assault allegations are made by individuals who had consensual sex that they
later regretted. She referred to the regrettable sex defense as a “myth” not supported by
any studies. She testified that she has seen defense attorneys rely on this theory previously
and she acknowledged that there may be instances of individuals reporting consensual sex
as rape, but it is uncommon.
¶10 The District Court allowed Dr. Zook to remain in the courtroom during Dr. Vanino’s
testimony and allowed Grimshaw to recall Dr. Zook in rebuttal. Dr. Zook reiterated her
testimony that a person exhibiting behaviors associated with trauma does not necessarily
prove a sexual assault occurred and she questioned the studies that Dr. Vanino relied upon.
Dr. Zook addressed Dr. Vanino’s testimony regarding the regrettable sex defense by
clarifying the literature uses the term “wrongful sex” and reasserted that people do have
consensual sex, regret it, and then report the consensual sex as rape.
¶11 The jury convicted Grimshaw of sexual intercourse without consent and Grimshaw
was returned to custody.
4
¶12 Dr. Michael Scolatti conducted a second psychological/psychosexual evaluation
(PSE) following the second trial. The report noted that Grimshaw had made progress to
complete the sex offender treatment program, completed chemical dependency treatment,
and participated in employment opportunities while incarcerated that required a clean
disciplinary record. Dr. Scolatti had evaluated Grimshaw after his first conviction and the
updated PSE reported that Grimshaw had matured considerably.
¶13 The District Court held a resentencing hearing on April 1, 2022. Grimshaw
recommended a sentence of 20 years MSP with ten years suspended consistent with the
plea agreement the State offered prior to the first trial. Grimshaw supported his
recommendation with information in the PSE and had multiple witnesses testify on his
behalf. Grimshaw testified that he had been paying restitution since his first conviction
and had complied with the terms of his release leading up to the second trial.
¶14 The State recommended the same sentence that it recommended after the first trial—
50 years MSP with 25 years suspended. The State submitted T.G.’s victim impact
statement that again asked the District Court to impose the maximum sentence. T.G.’s
letter explained the devastating impact the crime still has on her. The letter asked the
District Court to consider that Grimshaw had not taken a plea agreement and caused T.G.
to testify at a second trial. The State and the updated pre-sentence investigation report
(PSI) noted the circumstances of the crime had not changed between the first and second
trial.
5
¶15 Judge Christopher, who had sentenced Grimshaw in September 2017, sentenced
Grimshaw to 50 years MSP with 30 years suspended, increasing the suspended term by ten
years. Judge Christopher stated she was increasing the sentence because Grimshaw
appealed his conviction, retried the case instead of accepting a plea agreement, his lack of
remorse, the nature of the crime, impact on the victim, and safety of the community and
T.G. In the written judgment she stated:
The Defendant was found guilty and appealed. The Supreme Court
remanded the case on a technicality. The State offered the Defendant a plea
agreement, but [he] decided to try this case again, placing the victim in a
situation to testify again.
STANDARDS OF REVIEW
¶16 “We review evidentiary rulings for an abuse of discretion.” State v. Wilson, 2022
MT 11, ¶ 8,
407 Mont. 225,
502 P.3d 679 (citation omitted). An abuse of discretion “occurs
when a district court acts arbitrarily without conscientious judgment or exceeds the bounds
of reason, resulting in substantial injustice.” State v. Ellison,
2018 MT 252, ¶ 8,
393 Mont.
90,
428 P.3d 826 (citations omitted). “We review de novo a district court’s interpretation
of the Montana Rules of Evidence.” Wilson, ¶ 8.
¶17 We review a criminal sentence for legality. State v. Coburn,
2018 MT 246, ¶ 16,
393 Mont. 73,
428 P.3d 243 (citation omitted). We review de novo whether a district court
violated a defendant’s constitutional rights at sentencing. State v. Redfern,
2004 MT 277,
¶ 8,
323 Mont. 225,
99 P.3d 223 (citation omitted).
6
DISCUSSION
¶18 Issue 1: Whether the District Court abused its discretion by allowing the
State to recall an expert witness who violated an exclusion order
¶19 M. R. Evid. 615 states:
At the request of a party, the court shall order witnesses excluded so that they
cannot hear the testimony of other witnesses, and it may make the order of
its own motion. This rule does not authorize exclusion of (1) a party who is
a natural person, or (2) an officer or employee of a party which is not a natural
person designated as its representative by its attorney, or (3) a person whose
presence is shown by a party to be essential to the presentation of the party’s
cause.
¶20 Grimshaw argues the District Court erroneously held that Rule 615 prohibits a trial
court from excluding expert witnesses.
¶21 “Evidentiary rulings based on the interpretation of statutes or rules present purely
legal issues.” State v. Mont. Ninth Judicial Dist. Court, 2014 MT 188, ¶ 7,
375 Mont. 488,
329 P.3d 603 (citation omitted). In construing statutes or rules, our role “is simply to
ascertain and declare what is in terms or in substance contained therein, not to insert what
has been omitted or to omit what has been inserted.” Section 1-2-101, MCA.
¶22 Rule 615 explicitly provides that at the request of a party or on its own motion, “the
court shall order witnesses excluded so that they cannot hear the testimony of other
witnesses.” (Emphasis added). Rule 615 explicitly provides for three specific exceptions
to a witness exclusion order. The only exception applicable to this case is Rule 615(3),
which provides that an exclusion order does not apply to “a person whose presence is
shown by a party to be essential to the presentation of the party’s cause.” A witness’s
status as an expert witness is not, by itself, an exception to the Rule. Regardless of the
7
nature of the witness, Rule 615(3) requires that a party show that the witness’s presence is
“essential to the presentation of the party’s cause.”
¶23 Federal caselaw interpreting the almost identical Fed. R. Evid. 615(3) provision
proves persuasive and supports our conclusion. Faulconbridge v. State, 2006 MT 198,
¶ 51,
333 Mont. 186,
142 P.3d 777 (supporting our interpretation of M. R. Evid. 615(2)
with federal caselaw). The Ninth Circuit declined to conclude that Fed. R. Evid. 615(3)
always exempts an expert witness from an exclusion order because if the “‘framers
intended it, they would have said so, or added a fourth exception.’” United States v.
Seschillie,
310 F.3d 1208, 1213 (9th Cir. 2002) (quoting Morvant v. Constr. Aggregates
Corp.,
570 F.2d 626, 629-30 (6th Cir. 1978)).
¶24 The District Court erred by concluding that Dr. Vanino’s status as an expert witness
excluded her from the witness exclusion order. The State argues that even if the District
Court erred, Grimshaw is still not entitled to reversal of his conviction because the error
was harmless.1
¶25 “[T]he question as to whether a particular error is harmful or harmless depends on
the facts of the case under review.” State v. Brodniak,
221 Mont. 212, 222-23,
718 P.2d
322, 329 (1986), overruled in part on other grounds by State v. Van Kirk,
2001 MT 184,
306 Mont. 215,
32 P.3d 735. The State can establish that an error is harmless by
“demonstrat[ing] that there is no reasonable possibility that the inadmissible evidence
might have contributed to the conviction.” Van Kirk, ¶ 47.
1
The State also argues that Rule 615 does not apply to rebuttal witnesses. Because we conclude
the District Court’s error was harmless, we need not address this argument.
8
¶26 Grimshaw argues the State cannot prove there is no reasonable possibility that Dr.
Vanino’s rebuttal testimony did not contribute to Grimshaw’s conviction. Grimshaw
asserts Dr. Vanino’s rebuttal testimony rendered his theory of the case unbelievable to the
jury because of the weight jurors give expert testimony and the verbiage Dr. Vanino used
when questioning the veracity of what Dr. Vanino described as Grimshaw’s “regrettable
sex defense.”
¶27 The State responds by asserting Dr. Vanino’s rebuttal testimony did not prejudice
Grimshaw because Grimshaw was allowed to recall Dr. Zook to rebut Dr. Vanino’s rebuttal
testimony. The State contends the District Court’s error is harmless because allowing Dr.
Zook to listen to Dr. Vanino’s testimony and rebut it eliminated any prejudice to
Grimshaw.
¶28 The purpose of excluding witnesses from the courtroom is to prevent witnesses from
fabricating their testimony or tailoring their testimony to the testimony of other witnesses.
M. R. Evid. 615, MCA, Annotations, Comm’rs Note (2024); see also 1 Weinstein’s
Evidence Manual § 10.06 (2025) (excluding witnesses prevents “witnesses from hearing
each other’s stories so that inconsistencies in their testimony will be revealed”). Although
the District Court erred by holding that Rule 615 categorically does not apply to expert
witnesses, the purpose of excluding witnesses has little application to expert witnesses who
only offer expert opinions and do not testify as a fact witness. See Seschillie, 310 F.3d at
1214 (explaining no “countervailing reasons to sequester [the expert]” existed because the
expert was not a fact witness); Morvant,
570 F.2d at 629 (“We perceive little, if any, reason
9
for sequestering a witness who is to testify in an expert capacity only and not to the facts
of the case.”). Federal circuit courts have held failing to exclude an expert witness does
not result in prejudice when the expert’s opinion will not be “colored by accounts of prior
witnesses” or when the expert’s rebuttal testimony does not contradict their prior
testimony. Mayo v. Tri-Bell Industr., Inc., 787 F.2d 1007, 1013 (5th Cir. 1986); Trans
World Metals, Inc. v. Southwire Co.,
769 F.2d 902, 911 (2d Cir. 1985).
¶29 Dr. Vanino was a blind expert who only testified in the abstract regarding the
theories upon which Grimshaw relied. Even assuming, for the sake of argument, that
Grimshaw may have been prejudiced by Dr. Vanino remaining in the courtroom before
testifying on rebuttal, this prejudice was mitigated by the District Court allowing Dr. Zook
to remain in the courtroom during Dr. Vanino’s rebuttal testimony and then allowing
Grimshaw to recall Dr. Zook to challenge Dr. Vanino’s rebuttal testimony. Allowing Dr.
Zook to rebut Dr. Vanino’s opinion of the regrettable sex defense enabled Grimshaw to
present expert testimony to a critical aspect of this case and ensure the jury could weigh
Dr. Vanino’s opinion against Dr. Zook’s. See State v. Garding,
2013 MT 355, ¶ 33,
373
Mont. 16,
315 P.3d 912 (holding that limiting the defendant’s expert’s testimony
constituted harmless error because the defendant’s expert “was still allowed to present the
most critical aspects of his testimony to the jury”).
¶30 Both Dr. Vanino and Dr. Zook were called as blind expert witnesses, neither of
whom testified to the specifics of this case. Grimshaw was given ample opportunity to
challenge Dr. Vanino’s testimony with his own expert and, in fact, as far as the competing
10
expert opinions, Grimshaw got the last word before the case went to the jury. We conclude
there is no reasonable possibility that the error of allowing Dr. Vanino’s rebuttal testimony
might have contributed to Grimshaw’s conviction. The District Court’s error in allowing
the State to recall Dr. Vanino after she remained in the courtroom during Dr. Zook’s initial
testimony was harmless. Van Kirk, ¶ 47.
¶31 Issue 2: Whether the District Court violated Grimshaw’s due process rights
by increasing his sentence after retrial.
¶32 Due process prohibits a court from vindictively enhancing a defendant’s sentence
after the defendant has successfully challenged a conviction. State v. Bullplume, 2011 MT
40, ¶ 18,
359 Mont. 289,
251 P.3d 114 (citing North Carolina v. Pearce,
395 U.S. 711,
725,
89 S. Ct. 2072, 2080 (1969)). A presumption of vindictiveness applies when the same
judge who initially sentenced the defendant increases the sentence after reconviction
following a successful appeal. See State v. Forsyth,
233 Mont. 389, 422,
761 P.2d 363,
384 (1988) (explaining the presumption of vindictiveness does not apply when a different
judge sentences after reconviction); State v. Santoro,
2024 MT 136, ¶ 36 n.7,
417 Mont.
92,
551 P.3d 822 (citations omitted) (same). “To avoid a presumption of judicial
vindictiveness, an increased sentence must be based upon objective information
concerning identifiable conduct that occurred subsequent to the original sentence, and
reasons supporting the sentence must be made part of the record.” Bullplume, ¶ 18
(citations omitted).
¶33 Grimshaw argues the record developed at the sentencing hearing shows the District
Court vindictively punished him for exercising his right to appeal. Grimshaw contends the
11
written judgment demonstrates vindictiveness as it explicitly identifies Grimshaw’s appeal
and choice to retry the case as a basis for the increased sentence. Grimshaw contends the
District Court did not identify any objective evidence of new conduct or events that warrant
increasing his sentence.
¶34 The State argues the resentencing hearing record demonstrates the District Court
commented on Grimshaw’s right to pursue a second trial on remand but did not actually
consider Grimshaw’s decision when sentencing Grimshaw. The State asserts the District
Court properly increased the suspended term of the sentence because the sentence will
ensure Grimshaw remains accountable to himself and completes rehabilitation before
rejoining society.
¶35 The presumption of vindictiveness applies here because the same judge who initially
sentenced Grimshaw resentenced him after he was reconvicted and increased the sentence
imposed. See Forsyth, 233 Mont. at 422,
761 P.2d at 384. The District Court imposed a
more burdensome sentence by adding ten years to the suspended term. State v. Hanna,
2014 MT 346, ¶ 38,
377 Mont. 418,
341 P.3d 629 (citation omitted) (concluding adding
ten years of suspended time to a sentence increased the sentence as “suspended time is
nonetheless sentenced time”).
¶36 The District Court did not specify the basis for increasing the suspended term. The
District Court opined at the resentencing hearing that the safety of the community
constituted its primary concern, but it also found Grimshaw failing to express remorse
12
between trials constituted a “big issue for [it].” The written judgment states the following
as one of the justifications for the increased sentence:
[Grimshaw] was found guilty and appealed. The Supreme Court remanded
the case on a technicality. The State offered [Grimshaw] a plea agreement,
but decided to try this case again, placing the victim in a situation to testify
again[.]
¶37 Grimshaw exercising his constitutional rights while pursuing his appeal does not
constitute objective identifiable conduct that justifies increasing Grimshaw’s sentence.
Punishing Grimshaw for appealing his original conviction and exercising his right to a jury
trial on remand violates due process. State v. Jackson, 2007 MT 186, ¶ 14,
338 Mont. 344,
165 P.3d 321 (“A court denies a defendant’s due process rights by imposing a heavier
sentence . . . as punishment for setting aside [the defendant’s] original sentence.”); State v.
Baldwin,
192 Mont. 521, 525,
629 P.2d 222, 225 (1981) (“To punish a person for exercising
a constitutional right is a basic due process violation.”) (citations omitted). Imposing a
harsher sentence because Grimshaw did not express remorse between trials infringes upon
his constitutional right against self-incrimination as expressing remorse would have
rendered his appeal meaningless. See State v. Cesnik,
2005 MT 257, ¶ 25,
329 Mont. 63,
122 P.3d 456 (holding “a sentencing court may not punish a defendant for failing to accept
responsibility for the crime when that defendant has expressly maintained his innocence
and has a right to appeal his conviction”). The District Court’s statement at the
resentencing hearing that it would not punish Grimshaw for exercising his constitutional
rights does not convince us the District Court refrained from punishing Grimshaw for
13
exercising his rights particularly when considering the reasoning the District Court
expressed in its written judgment.
¶38 The transcript of the resentencing hearing indicates the District Court
misunderstood the due process requirements in resentencing. The District Court reasoned
it could resentence Grimshaw “as a brand-new case . . . based on all of the circumstances
[it] had in front of [it].” Due process requires the District Court to justify increasing a
sentence on reconviction based on new information, conduct, or events that occurred after
the court originally sentenced the defendant. See Bullplume, ¶ 18; Wasman v. United
States, 468 U.S. 559, 572,
104 S. Ct. 3217, 3225 (1984) (holding a district court “may
justify an increased sentence by affirmatively identifying relevant conduct or events that
occurred subsequent to the original sentencing proceedings” (emphasis added)).
¶39 Relevant conduct or events that can rebut the presumption of judicial vindictiveness
are those that shed “new light upon the defendant’s life, health, habits, conduct, and mental
and moral propensities.” Pearce,
395 U.S. at 723,
89 S. Ct. at 2079. Relevant information
“may come to the judge’s attention from evidence adduced at the second trial itself, from
a new presentence investigation, from the defendant’s prison record, or possibly from other
sources.” Pearce,
395 U.S. at 723,
89 S. Ct. at 2079.
¶40 The record does not reflect the District Court increased the sentence because it found
new information demonstrated the crime was more egregious or the impact more
devastating to the victim. The State and PSI stated the circumstances of the crime had not
changed since the first trial. The District Court received T.G.’s victim impact statement
14
that described the devastating impact the crime had, and would continue to have, on T.G.
before the first sentencing hearing. The second impact statement submitted prior to the
resentencing hearing reemphasized the trauma T.G. continues to suffer. The District Court
could not lawfully increase Grimshaw’s sentence under these circumstances. State v.
Knowles, 2010 MT 186, ¶ 35,
357 Mont. 272,
239 P.3d 129 (holding prosecutorial
vindictiveness occurred when the State increased the charges after mistrial without new
factual evidence justifying the increase).
¶41 The District Court also reasoned that the sentence would protect the community and
T.G. But the District Court did not identify any new information to reason that Grimshaw
became more dangerous or needed more time to rehabilitate himself. The record indicates
Grimshaw was completing his sex offender treatment program, abided by the rules while
incarcerated, and had not misbehaved when released on bail prior to the second trial. The
PSE completed after Grimshaw was convicted the second time also indicated that
Grimshaw had completed chemical dependency treatment and had matured since he was
evaluated after his conviction in September 2017. The dichotomy of character created by
the crime Grimshaw was convicted of and the man described by the witnesses testifying
on Grimshaw’s behalf amounts to the District Court reconsidering the nature of the crime.
Grimshaw’s progress in treatment and his orderly behavior since first being sentenced do
not warrant increasing the sentence due to safety concerns. E.g., Texas v. McCullough,
475 U.S. 134, 144,
106 S. Ct. 976, 981-82 (1986) (holding the judge learning upon retrial
that the defendant committed additional crimes upon his release “amply justified [the
15
defendant’s] increased sentence”); State v. Hubbel, 2001 MT 31, ¶¶ 28-29,
304 Mont. 184,
20 P.3d 111 (holding the district court justified the increased sentence because the
defendant had not made progress on rehabilitation programs), abrogated in part on other
grounds by State v. Hendricks,
2003 MT 223,
317 Mont. 177,
75 P.3d 1268.
¶42 The record before us demonstrates the District Court’s stated reasoning for imposing
the increased sentence does not rebut the presumption that it vindictively increased
Grimshaw’s sentence. The District Court unlawfully punished Grimshaw for exercising
his constitutional rights and did not rely on objective information relating to conduct that
occurred after it originally sentenced Grimshaw as a basis for increasing Grimshaw’s
sentence.
¶43 Grimshaw requests that we reduce the suspended term of the sentence to 20 years
as this would reflect the suspended term he received upon the first conviction.
¶44 The remedy we may administer for a partially illegal sentence varies based on the
circumstances. State v. Hicks,
2006 MT 71, ¶ 44,
331 Mont. 471,
133 P.3d 206; State v.
Krum,
2007 MT 229, ¶ 23,
339 Mont. 154,
168 P.3d 658. We have generally remanded
“with instructions to strike the offending provision” when “the illegal portion of a sentence
relates to a condition of a suspended sentence or a sentence enhancement.” Hicks, ¶ 44
(citing State v. Heath,
2004 MT 58, ¶ 49,
320 Mont. 211,
89 P.3d 947). We prefer to
remand for resentencing when the “illegal portion of a sentence [1] affects the entire
sentence or [2] we are unable to determine what sentence the trial court would have
imposed under a correct application of the law.” Hicks, ¶ 44 (citation omitted).
16
¶45 The State and PSI do not contend new evidence introduced at the second trial
demonstrated the crime had been more egregious than presented at the first trial. The
record reflects that Grimshaw did not become more violent or prone to reoffend since he
was first sentenced. As we recognized above, the record indicates that Grimshaw was
completing treatment programs, had not received disciplinary writeups for misconduct, and
matured since he was originally sentenced. The record does not reflect that new events,
conduct, or information came to light since Grimshaw was first sentenced that justify
increasing his sentence.
¶46 We reverse and remand the sentence only with respect to the length of the suspended
term. The judgment should be amended to change Grimshaw’s term of incarceration from
50 years MSP, with 30 years suspended to 40 years MSP, with 20 years suspended. The
remaining terms and conditions of the judgment remain unchanged.
CONCLUSION
¶47 The District Court’s error of allowing Dr. Vanino to testify in rebuttal despite the
witness exclusion order was harmless. The District Court violated Grimshaw’s due process
rights by vindictively increasing the sentence after he was reconvicted. We affirm in part
reverse in part, and remand with instructions to amend the judgment consistent with this
Opinion.
/S/ JAMES JEREMIAH SHEA
17
We Concur:
/S/ CORY J. SWANSON
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ JIM RICE
18
