A. Precedents Cited
1) Montana standards of review and prejudice
The Court framed both claims under the familiar abuse-of-discretion lens:
State v. Price, 2006 MT 79 (discretionary rulings reviewed for abuse of discretion) and
State v. McLaughlin, 2009 MT 211 (abuse occurs when a court acts “arbitrarily without conscientious judgment or exceeds the bounds of reason”).
It then tied reversal to preserved error plus prejudice to substantial rights under Montana statutes and cases including
State v. Byrne, 2021 MT 238 and State v. Mathis, 2022 MT 156.
For harmless error, the Court relied on Montana’s “no reasonable possibility” test from State v. Van Kirk, 2001 MT 184,
and the qualitative assessment approach from State v. Stewart, 2012 MT 317 and State v. Buckles, 2018 MT 150.
The Court also invoked Sullivan v. Louisiana, 508 U.S. 275 (1993) for the principle that errors affecting the jury’s decision framework
require especially rigorous harmless-error review.
2) Presumption of innocence and trial conditions that erode it
The majority’s central doctrinal engine is the presumption of innocence line of cases:
State v. Lawrence, 2016 MT 346 (presumption is fundamental and endures through deliberations);
Coffin v. United States, 156 U.S. 432 (1895) and State v. De Lea, 36 Mont. 531 (1908) (historical articulation of presumption).
The majority placed “victim” labeling alongside other “trial conditions” that can introduce impermissible influences, using
Estelle v. Williams, 425 U.S. 501 (1976) as the template: because the impact on jurors is hard to measure, courts must apply “close judicial scrutiny”
guided by “reason, principle, and common human experience.”
The opinion also analogized the cumulative effect of repeated “victim” references to continuing prejudicial conditions such as restraints, citing
State v. Hartsoe, 2011 MT 188.
3) Out-of-state authority on “victim” references as vouching/commentary
The majority grounded its “victim is conclusive” principle in dictionary definition and persuasive authority:
State v. Nomura, 903 P.2d 718 (Haw. Ct. App. 1995) (term implies predetermination of wrongdoing);
Jackson v. Delaware, 600 A.2d 21 (Del. 1991) (in disputed-crime cases, “victim” is incompatible with presumption of innocence);
Utah v. Devey, 138 P.3d 90 (Utah Ct. App. 2006) (prohibit “victim” where the crime’s occurrence is disputed and allegations rest on complainant’s testimony);
Vermont v. Wigg, 889 A.2d 233 (Vt. 2005) (error to permit police detective to refer to complainant as “victim” where credibility is core);
Oregon v. Sperou, 442 P.3d 581 (Or. 2019) (witness “victim” references can be vouching and categorically inadmissible when they serve no legitimate non-vouching purpose).
For cumulative prejudice, the Court invoked Anderson v. BNSF Ry., 2015 MT 240 to treat repeated improper statements collectively.
And to emphasize the prejudicial force when “victim” comes from authoritative sources, the Court cited
Utah v. Carrera, 517 P.3d 440 (Utah 2022) and State v. Juarez, 489 P.3d 231 (Utah Ct. App. 2021).
4) Special concern: law enforcement and judicial speakers
The dissent’s “term of art” defense was addressed through competing authorities:
the majority acknowledged Jackson v. Delaware as the origin of the “term of art” notion but questioned it using
Hawaii v. Mundon, 292 P.3d 205 (Haw. 2012) and professional-training sources.
For police credibility and the heightened risk of harm, the Court relied on Briscoe v. LaHue, 460 U.S. 325 (1983) (Marshall, J., dissenting in part)
and Oregon v. Kehoe, 560 P.3d 774 (Or. 2024).
For judicial use of “victim,” the Court traced the concern to California v. Williams, 17 Cal. 142 (Cal. 1860):
a judge’s “unguarded expression” can influence jurors and resembles characterizing the defendant as guilty.
The Court then cited cases treating “victim” in jury charges as reversible or fundamentally unfair under certain conditions:
Talkington v. Texas, 682 S.W.2d 674 (Tex. App. 1984) and New York v. Davis, 423 N.Y.S.2d 229 (N.Y. App. Div. 2d Dept. 1979).
5) Propensity evidence, transaction rule, and consciousness of guilt
On the phone-wipe issue, the Court integrated Montana’s transaction rule doctrine and Rule 404(b) limitations:
State v. Detonancour, 2001 MT 213 (transaction rule framework);
State v. Loera, 2025 MT 84 and State v. Lake, 2022 MT 28 (evidence must be “inextricably linked or intertwined” and provide a complete picture);
State v. Guill, 2010 MT 69 (transaction rule must not overthrow Rule 404(b));
State v. Moore, 254 Mont. 241 (1992) (post-crime concealment admissible as consciousness of guilt when inseparably related);
State v. Hall, 1999 MT 297 (flight/concealment only marginally probative).
The Court then drew on federal skepticism about flight/concealment inferences:
Wong Sun v. United States, 371 U.S. 471 (1963);
Alberty v. United States, 162 U.S. 499 (1896);
Bailey v. United States, 416 F.2d 1110 (D.C. Cir. 1969);
and especially United States v. Myers, 550 F.2d 1036 (5th Cir. 1977) for the four-step inference chain,
emphasizing that ambiguity about what crime motivated concealment defeats probative value for the charged offense.
6) Rule 404(b), Rule 403 balancing, and impeachment limits
The opinion’s Rule 404(b) analysis relied on Montana cases defining “character evidence” and insisting on careful limitation:
State v. Pelletier, 2020 MT 249 (character evidence definition and structure of Rule 404);
State v. Haithcox, 2019 MT 201 and State v. Berosik, 2009 MT 260 (transaction rule not a conduit for propensity);
State v. Buckles, 2018 MT 150 (Rule 403 applies even when transaction rule invoked);
Harrell v. Farmers Ed. Co-op Union of Am., 2013 MT 367 (Rule 403 balancing embedded when Rule 404(b) invoked);
and the classic balancing framework in State v. Just, 184 Mont. 262 (1979), State v. Matt, 249 Mont. 136 (1991),
with notice-rule history in State v. Dist. Ct. of Eighteenth Jud. Dist. (Salvagni), 2010 MT 263 and cautioning cases like
State v. Madplume, 2017 MT 40.
For impeachment doctrine and the “defendant controls whether character is put in issue,” the Court cited
State v. McGhee, 2021 MT 193, State v. Gowan, 2000 MT 277, and State v. Passmore, 2010 MT 34.
It concluded the State exceeded permissible impeachment-by-contradiction by using the evidence to imply drug-dealer propensity rather than to contradict
a material assertion Sandberg made.
7) Dissent’s competing preservation/plain error framework
The dissent emphasized preservation requirements for jury instructions under § 46-16-410(3), MCA and cited cases such as
State v. Dethman, 2010 MT 268, Vincent v. BNSF Ry. Co., 2010 MT 57, and Seltzer v. Morton, 2007 MT 62,
and stressed plain-error doctrine through State v. Akers, 2017 MT 311, State v. Miller, 2022 MT 92, and State v. George, 2020 MT 56.
The majority, however, treated the standing objection as sufficient under the specific trial circumstances and proceeded under harmless-error review for the preserved “victim” issue.
B. Legal Reasoning
1) “Victim” labeling as a presumption-of-innocence problem (not mere semantics)
The Court’s reasoning begins with a definitional move: “victim” means a person harmed by a crime, tort, or other wrongdoing.
In a case where the jury must decide whether a crime occurred (especially whether sexual contact was nonconsensual), calling the complainant
a “victim” smuggles in the conclusion that the complainant was harmed by a crime. That conclusion is the jury’s job.
From that premise, the Court treats repeated “victim” references as a form of implicit vouching and an invasion of the jury’s province—especially
when uttered by speakers jurors are likely to treat as authoritative (prosecutors, police officers, experts, and the judge through jury instructions).
The Court’s analysis is explicitly contextual: it highlights (i) the nature of the case (consent dispute; credibility central), (ii) the number of uses,
and (iii) the identity of speakers.
2) Cumulative prejudice and “institutionalizing” the premise of a crime
The Court’s key factual finding is “pervasiveness”: the jury heard “victim” 11 times from four sources across two days, and also witnessed the court
overruling objections. The majority treated this as compounding the effect—each instance reinforcing the prior ones—culminating in the court itself
reading instructions that used the term.
The opinion’s sharpest move is conceptual: it argues that repeated “victim” references change the jury’s task from
“did a crime occur?” to “who did the crime?”—because once a “victim exists,” the existence of a crime is treated as settled.
That framing is why the Court insists harmless-error review must be “particularly rigorous” here: the error alters the framework within which
jurors interpret all evidence.
3) Preservation via unlimited standing objection (jury instructions included)
The Court held that Sandberg’s “unlimited standing objection” opposing “victim” references was sufficiently specific and broad to cover later
jury instructions, despite no renewed objection at instruction settlement. The majority’s rationale is functional rather than formal:
the contemporaneous-objection rule exists to avoid sandbagging and provide a meaningful opportunity to correct error; where the issue is fully
known, argued, and ruled upon without limitation, requiring repetition would be “ritualistic” redundancy.
4) Phone-wipe evidence: consciousness of guilt must be tied to the charged crimes
The Court acknowledged that concealment can sometimes show consciousness of guilt (citing State v. Moore),
but emphasized that concealment is often ambiguous and only marginally probative (State v. Hall, Wong Sun v. United States).
Using United States v. Myers as the analytic lens, the Court concluded the chain of inferences fails at the critical step:
Sandberg’s desire to wipe his phone could reflect fear of exposure for uncharged drug-dealing activity rather than guilt of sexual assault/kidnapping/robbery.
Compounding the relevance problem, the State used the evidence in a manner that invited jurors to reason:
“he is a drug dealer” → “he is the type of person who would do this” or “he is unworthy of belief.”
That is the forbidden propensity inference Rule 404(b) is designed to block. Even if some impeachment use existed, the Court held the State exceeded it,
and the prejudicial effect—especially in a credibility-driven trial—was substantial.