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State v. Bauer1/15/2002
incident. Both letters were admitted into evidence without objection. Bauer also used his prison sentence to silence Amanda. According to Amanda's testimony, Bauer told her he would be returned to prison and either die or commit suicide there if she spoke about the incest. The Anaconda-Deer Lodge police officer testified that he was aware that Bauer likely had violated a condition of his probation when the officers detained him for alcohol consumption on January 21. Bauer and his probation officer both explained to the court that Bauer was required to apply for permission to travel as another condition of probation. The travel permits were integral to the State's case and were presented to show Bauer falsified the forms to conceal his intention to stay with his daughter when visiting Anaconda. We conclude the District Court acted conscientiously and within the bounds of reason in allowing the facts of Bauer's prison internment and probationary status into evidence.
We next examine the specific error of the unredacted reference to the expiration date of Bauer's felony sentences using the two-step analysis we adopted in Van Kirk to determine whether the error prejudiced Bauer's right to a fair trial and therefore is reversible. State v. Van Kirk, 2001 MT 198, 37-47, 306 Mont. 215, 37-47, 32 P.3d 735, 37-47. The first step is to determine whether the error is a structural error or a trial error. Van Kirk, 37. Structural error affects certain substantial rights of the defendant and is typically of constitutional dimensions, precedes the trial, and undermines the fairness of the entire proceeding. Van Kirk, 38. Structural errors are automatically reversible. Van Kirk, 39.
Trial errors typically occur during the presentation of the case to the court and are subject to review under the harmless error statute, § 46-20-701, MCA. Van Kirk, 40. Section 46-20-701(1), MCA, provides that " cause may not be reversed by reason of any error committed by the trial court against the convicted person unless the record shows that the error was prejudicial." The State must prove that the trial error did not prejudice a substantial right of the defendant and that the error is harmless beyond a reasonable doubt. Section 46-20-701(2), MCA; Van Kirk, 42. Under the "cumulative evidence" test that we adopted in Van Kirk, we determine whether there is a reasonable probability that the erroneously admitted evidence might have contributed to the conviction. Van Kirk, 43. This test looks to whether the fact finder was presented with admissible evidence that proved the same facts as the tainted evidence. Van Kirk, 44. In addition, the quality of the tainted evidence, in comparison with the quality of the admissible evidence, must be such that there is no reasonable possibility that it might have contributed to the defendant's conviction. Van Kirk, 47.
The erroneous presentation to the jury of the unredacted dates on the travel permits indicating the expiration of Bauer's felony sentences constitutes trial error. While the jury received no information on Bauer's specific prior crimes, the unredacted dates signaled that felony convictions underlaid the requirement that Bauer obtain written permission from his probation officer prior to travel. As noted above, references to Bauer's probationary status and prior imprisonment arose during the testimony of Bauer, his probation officer, Amanda and an Anaconda police officer. The letters Bauer sent to Amanda and her mother, which were admitted as exhibits, mention discussions with his probation officer and Bauer's 17-year incarceration. The State maintains the admissible evidence presupposes the existence of a felony conviction in Bauer's past,
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