State v. Z. Maas

majority opinion

09/15/2026

DA 23-0273

Case Number: DA 23-0273

IN THE SUPREME COURT OF THE STATE OF MONTANA

2026 MT 217

STATE OF MONTANA,

Plaintiff and Appellee,

ZACKARY MATTHEW MAAS,

Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and For the County of Flathead, Cause No. DC-2022-81

Honorable Dan Wilson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

David M. Maldonado, Maldonado Law, PLLC, Missoula, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Mardell Ployhar,

Assistant Attorney General, Helena, Montana

Travis R. Ahner, Flathead County Attorney, Ashley S. Frechette,

Alison E. Howard, Deputy Attorneys General, Kalispell, Montana

Submitted on Briefs: December 24, 2025

Decided: September 15, 2026

Filed:

Clerk

Chief Justice Cory J. Swanson delivered the Opinion of the Court.

¶1 Zackary Matthew Maas (Maas) appeals a conviction in the Eleventh Judicial District

Court in Flathead County. Following a jury trial, Maas was found guilty of Deliberate

Homicide after he shot and killed Gabriel Wagoner (Wagoner). The court sentenced Maas

to 80 years at the Montana State Prison with no time suspended. We affirm.

¶2 We restate the issues on appeal as follows:

Issue One: Whether Maas was denied his right to confront witnesses under the

United States and Montana Constitutions when the District Court admitted

statements made by Wagoner before his death.

Issue Two: Whether the State demonstrated the error was harmless as to the

justifiable use of force defense and the deliberate homicide conviction.

Issue Three: Whether the District Court erred when it allowed questioning

regarding a juvenile prior bad act.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Maas and Jerum Auclaire (Auclaire) were best friends for about six years and

regularly used methamphetamine together. The two had a falling out after Maas accused

Auclaire of stealing property from his dad’s shop. Maas threatened Auclaire, stating, “you

better have [your new .338] Lapua sighted in because I’m gonna shoot you with it.” Soon

after Maas’s threats, Auclaire ostracized Maas to improve himself.

¶4 On March 12, 2022, Maas apologized to Auclaire and sought to restore their

friendship. Auclaire acquiesced and invited Maas to join him at his hotel in Kalispell where

Maas, Auclaire, and Auclaire’s girlfriend, Shayna Caldwell (Caldwell) drank Twisted Teas

while their children swam in the pool. While they were visiting, Maas told Auclaire that

he now suspected Wagoner had stolen the property rather than Auclaire.

¶5 Later that night, Maas, Auclaire, and Caldwell migrated to their hotel room where

the children fell asleep. Maas suggested they go to the bar while his fiancé, Anna Kirchner

(Kirchner), watched the kids. Auclaire and Caldwell agreed. Maas texted Kirchner and

asked if she could watch his daughter while he went out to the bar. Kirchner did not want

to go to the hotel and replied that Maas could bring his daughter home for her to watch.

Instead, Maas picked Kirchner up against her wishes and drove her to the hotel to watch

Auclaire and Caldwell’s children along with Maas’s daughter.

¶6 Maas, Auclaire, and Caldwell first had a drink at a bar in Columbia Falls, and then

went to a bar in Whitefish, staying until closing. While driving back to the hotel, Maas

again accused Auclaire of stealing the property from his dad’s shop. Maas then asserted

Wagoner had something to do with the stolen property and asked Auclaire if he would go

to Wagoner’s house with him. Auclaire reluctantly agreed under the condition that Maas

would not bring a gun. Meanwhile, Kirchner was getting tired and texted Maas saying, “I

want to go home” “Now.” In response, Maas texted her saying, “I’m just gonna get revenge

then I’ll be back please try to sleep til then.”

¶7 Maas directed Auclaire to Wagoner’s house where the two of them approached the

residence. Wagoner lived in the basement apartment of a triplex. The outside entrance to

the triplex was a screen door that opened into a small square landing. On each side of the

square landing was a door, each leading into an apartment. Wagoner’s door opened to a

staircase which led directly down into his apartment. Wagoner had a prior affiliation with

Maas and had previously dated Maas’s mother. Therefore, Maas knew the location of the

spare key to Wagoner’s apartment. Maas entered the screen door into the landing, opened

Wagoner’s door, and went down the stairway into Wagoner’s apartment ahead of Auclaire.

When Maas was halfway down the stairs, Auclaire heard a gun being cocked. Auclaire

testified that once he reached the apartment, Wagoner was out of bed, and Maas was

holding him at gunpoint.

¶8 Auclaire further testified that Wagoner walked towards Maas saying, “You have a

gun pointed at me? Shoot me. Shoot me, shoot me.” Auclaire grabbed Wagoner around

the arms to prevent him from being shot. While Auclaire was holding Wagoner, he

believed Maas hit Wagoner, so he let him go. Maas maintained he never hit Wagoner.

Wagoner denied knowing anything about the stolen property and volunteered to take Maas

and Auclaire to a man named Luke’s house to find out more information. After hearing

this, Auclaire turned around and started walking up the stairs to leave. Once he reached

the top of the stairs, Auclaire heard a gunshot and ran from the apartment. Maas and

Auclaire fled the scene. Maas claimed Wagoner went after Auclaire with a bat and was

right behind Auclaire about to swing when Maas shot him. Auclaire initially told detectives

he had seen Wagoner behind him on the stairs with a baseball bat resting on his shoulder.

Auclaire later admitted he had lied to the detectives to cover for Maas, and that he had not

actually seen Wagoner behind him with a bat. Auclaire told detectives he had not felt

threatened and did not think Wagoner was going to hit him with the bat.

¶9 Maas and Auclaire returned to the hotel where Maas picked up Kirchner and his

daughter. On the way home, Maas told Kirchner he had pulled a gun out during his

interaction with Wagoner, Auclaire had grabbed Wagoner, and he thought he had shot

someone. Maas then told Kirchner he had been upset about the stolen property and that he

shot Wagoner to protect Auclaire because he swung a baseball bat at Auclaire’s head. In

the months leading up to these events, Maas had texted Wagoner accusing him of stealing

and making multiple statements threatening to harm or kill Wagoner, which will be

discussed in more detail later.

¶10 In the early morning of March 13, 2022, Wagoner’s neighbor, Richard Paulson

(Paulson), had been sleeping on his couch when he awoke to loud voices coming from the

basement apartment. After hearing a loud bang, Paulson went to his door and heard

Wagoner yelling “I’ve been shot, I’ve been shot.” Paulson called 911. He then found

Wagoner lying with the upper part of his body on the landing of the stairs and a baseball

bat by his head. Wagoner’s other neighbor, Jack Weis (Weis), also awoke to the sound of

arguing, heard the shot, and heard Wagoner yell that Zack Maas had shot him.

¶11 When police officers arrived at Wagoner’s apartment in response to the 911 calls,

Wagoner had been shot in the back and was laying on the landing of the stairs. Deputy

Matthews of the Flathead County Sheriff’s Office made sure the suspect was not in the

apartment and then assisted paramedics in caring for Wagoner. While Deputy Matthews

was attending to Wagoner, he heard Wagoner say Zackary Maas had shot him.

¶12 Officer Struble of the Kalispell Police Department also responded to the shooting.

As he approached the scene, Officer Struble saw Wagoner face down on the landing with

a bat next to his right hand and heard Wagoner yelling. He heard Wagoner identify Maas

as the person who shot him. At this point, responding officers were still unsure of the

location of the shooter. Officer Struble accompanied Wagoner in the ambulance on the

way to the emergency room. In the ambulance, Wagoner, who was screaming in pain and

sometimes lost consciousness, again identified Maas as his shooter.

¶13 Detective Webster of the Kalispell Police Department and Officer Struble briefly

spoke with Wagoner once he arrived at the Logan Health emergency room. Wagoner told

them Maas and Auclaire had stormed his house, pointed a gun at him, punched him, and

wanted him to go to Luke’s house to get information about stolen property. Wagoner said

he tried to get the men out of his apartment and was shot in the back. Wagoner was then

life-flighted to Harborview Medical Center in Seattle, Washington.

¶14 That same day, Wagoner’s brother, Wade Wagoner (Wade), received a phone call

from a trauma surgeon at Harborview informing him Wagoner was in critical condition,

and it was questionable whether Wagoner would survive. Wade traveled to Washington

to visit Wagoner after his first surgery. While speaking with his brother, Wagoner

explained he had awakened to someone choking him and another person beating him, there

was a dispute about a car title, Maas and Auclaire made him go with them, and as they

were headed up the stairs to leave, Wagoner grabbed a bat to defend himself since they

were going somewhere. Wagoner said when he got to the top of the stairs there was a

“crack,” and it felt like a hot poker. On or around March 17, 2022, another one of

Wagoner’s brothers, Braidy Yargus (Yargus), visited him at Harborview. Wagoner

explained what had happened the night he was shot, recounting information akin to what

he told Wade with the addition that Maas was the one who shot him.

¶15 On March 14, 2022, while Wagoner was at Harborview, Detective Webster spoke

with him again over the phone. During this call, Wagoner was frustrated and emotional as

he told the detective Maas and Auclaire had come into his house while he was on his bed,

Maas pointed a gun at his head, and Auclaire put him in a choke hold while Maas punched

him. Wagoner volunteered to take them to Luke’s house to prove he did not steal the

property at issue, and he grabbed a bat for protection. Wagoner stated he was walking up

the stairs when Maas shot him.

¶16 On March 14, 2022, Detective Webster also interviewed Maas, who admitted he

took his gun into Wagoner’s house to confront him about the stolen property. Maas also

admitted he immediately pointed his gun at Wagoner, but claimed he put the gun away

once Auclaire grabbed Wagoner. Maas claimed he took his gun out again because

Wagoner had a bat and ran after Auclaire. Maas then admitted to shooting Wagoner with

his Glock 48 and fleeing the scene with Auclaire.

¶17 Maas discussed the conflict with Timberli Veyna (Veyna), his daughter’s mother,

shortly after bonding out of jail on the initial charges in this case. Maas told Veyna that

Wagoner had run after Auclaire with a bat but had not hit him with the bat. Maas stated

he planned to “claim” self-defense. Maas also told Veyna he was mad at Wagoner and

Wagoner “deserved it.”

¶18 Maas’s bullet entered Wagoner’s back, fractured his spine, damaged his spinal cord,

and came to rest near his aorta. The bullet caused considerable damage to Wagoner’s lower

extremities, paralyzing Wagoner’s legs and causing a blood infection. Wagoner died on

April 14, 2022.

STANDARD OF REVIEW

¶19 This Court exercises plenary review of constitutional questions, and it reviews a

district court’s interpretation of the Sixth Amendment of the United States Constitution

and Article II, Section 24, of the Montana Constitution de novo. State v. Mercier, 2021 MT

12, ¶ 11, 403 Mont. 34, 479 P.3d 967 (internal citations omitted). A district court has broad

discretion when determining admissibility of evidence; however, this discretion must be

guided by the Rules of Evidence, applicable statutes, and principles of law. State v.

Zimmerman, 2018 MT 94, ¶ 13, 391 Mont. 210, 417 P.3d 289 (internal citations omitted).

Evidentiary rulings by the district court are reviewed for abuse of discretion. Mercier, ¶ 12

(internal citations omitted). The district court abuses its discretion if it acts arbitrarily and

without employing conscientious judgment, or exceeds the bounds of reason, resulting in

substantial injustice. Mercier, ¶ 12 (internal citations omitted). However, to the extent the

district court’s ruling is based on its interpretation of an evidentiary rule, we review de

novo. State v. Donahue, 2025 MT 144, ¶ 9, 423 Mont. 1, 571 P.3d 1068. An erroneous

evidentiary ruling only constitutes reversible error if a party’s substantial rights are

affected. M. R. Evid. 103.

DISCUSSION

¶20 Issue One: Whether Maas was denied his right to confront witnesses under the

United States and Montana Constitutions when the District Court admitted

statements made by Wagoner before his death.

¶21 The Sixth Amendment’s Confrontation Clause is binding on the states through the

Fourteenth Amendment and provides, “In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him.” U.S. Const. amends. VI,

XIV. Similarly, Article II, Section 24, of the Montana Constitution protects a criminal

defendant’s right to “meet the witnesses against him face to face.” “There are two founding

era exceptions to the Confrontation Clause: dying declarations and forfeiture by

wrongdoing.” State v. Martinez, 2023 MT 251, ¶ 35, 414 Mont. 340, 545 P.3d 652

(McGrath, C.J., specially concurring) (citing Giles v. California, 554 U.S. 353, 358-59,

128 S. Ct. 2678, 2682-83 (2008)); see also State v. Hogues, 2024 MT 304, ¶ 28, 419 Mont.

322, 561 P.3d 1 (citing Ohio v. Clark, 576 U.S. 237, 243, 245-46, 135 S. Ct. 2173,

2179-80 (2015); Crawford v. Washington, 541 U.S. 36, 56 n.6, 124 S. Ct. 1354, 1367

(2004) (noting “dying declarations” as an example of a Framers-era exception to the

common law principle embodied in Sixth Amendment)).

¶22 Whether the admission of a hearsay statement implicates the right to confrontation

depends on whether the statement is nontestimonial or testimonial. State v. Johnson,

2024 MT 306, ¶ 21, 419 Mont. 366, 560 P.3d 1219 (internal citations omitted). Admission

of a testimonial hearsay statement implicates a defendant’s confrontation rights and is only

proper if the defendant had a prior opportunity to cross-examine the declarant who is now

unavailable to appear at trial. Johnson, ¶ 21 (internal citations omitted). If the hearsay

statement is nontestimonial, it is subject to regulation by hearsay laws, but the

Confrontation Clause does not apply. State v. Tome, 2021 MT 229, ¶ 28, 405 Mont. 292,

495 P.3d 54 (citing Crawford, 541 U.S. at 68, 124 S. Ct. at 1374).

¶23 To determine whether statements are testimonial or nontestimonial, we apply the

“primary purpose test” which asks if “in light of all the circumstances, viewed objectively,

the primary purpose of the statement was to create an out-of-court substitute for trial

testimony.” State v. Hillious, 2025 MT 53, ¶ 55, 421 Mont. 72, 565 P.3d 1218 (internal

citations omitted; internal quotations omitted). We have followed United States Supreme

Court holdings that a statement is presumed nontestimonial if it is “made in the course of

police interrogation under circumstances objectively indicating that the primary purpose of

the interrogation is to enable police assistance to meet an ongoing emergency.” Hillious,

¶ 57 (citing Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273 (2006)); accord

State v. Mizenko, 2006 MT 11, ¶ 23, 330 Mont. 299, 127 P.3d 458 (holding statements to

police officers or government agents are presumed nontestimonial if the declarant had an

objective reason to believe the “statement would serve only to avert or mitigate an

imminent or immediate danger and the agent who received the statement had no intent to

create evidence”). A statement made to a non-government agent is generally

nontestimonial unless the declarant had “clear reason to believe that the statement would

be used in court as substantive evidence against the defendant . . . .” Mizenko, ¶ 23. We

address each statement at issue in this case in turn.

1. Statements immediately following the shooting

¶24 Maas seemingly asserts on appeal that the admission of all statements by Wagoner

violated his confrontation rights stating, “Gabriel Wagoner’s out-of-court statements were

testimonial hearsay and should have been excluded from evidence,” but only specifically

addresses a few of those statements in his argument. Maas failed to specifically object to

the admissibility of any statements made by Wagoner between the shooting and his

transportation to the hospital.1 The State correctly argues this Court will not place “a

district court in error for an action in which the appealing party acquiesced or actively

participated.” Donahue, ¶ 31 (citing State v. Favel, 2015 MT 336, 381 Mont. 472,

362 P.3d 1126 (quoting State v. Reim, 2014 MT 108, ¶ 28, 374 Mont. 487, 323 P.3d 880)).

However, each statement’s admissibility is relevant for analyzing harmless error under the

“cumulative evidence test” discussed below.

¶25 Wagoner made a series of statements offering generally the same information

immediately following the shooting. First, Weis, Wagoner’s neighbor who called 911 after

the shooting, testified to Wagoner making the following statement while lying on the floor:

STATE: And did you hear him say anything?

WEIS: He shouted out the name of who had shot.

STATE: Do you recall that name?

WEIS: I believe it was Zack Maas.

Second, Deputy Matthews testified to the following after responding to the shooting:

STATE: Did the victim make any statements when he was laying there in the

landing and you were attending to him?

DEPUTY MATTHEWS: I believe he said Zackary Maas shot him.

In a Motion In Limine to the District Court, Maas moved the court to “prohibit the State from introducing any evidence, inquiring, referring to, or alluding to any statements made by the deceased, [] Wagoner.” Maas then conceded to admissibility of some of Wagoner’s statements in a notice to the court stating, “after further review, the Defendant concedes that the statements made by the deceased, [] Wagoner, immediately after the shooting at his residence on March 13, 2022, are admissible under Rule 803(1),(2) or (3) M.R. Evid. as a present sense impression, excited utterance or then existing state of mind. The Defendant does not object to testimony regarding these statements by the deceased’s neighbors, responding law enforcement personnel and responding medical personnel. The Defendant restates that all other statements made by Wagoner to law enforcement, hospital personnel, family members, friends, and other lay persons are testimonial in nature and therefore inadmissible.”

Lastly, Officer Struble testified to the following upon arriving at the scene:

STATE: Did Gabe [Wagoner] make any statements while he was laying in

that entryway landing?

OFFICER STRUBLE: He stated that his stepson shot him in the back.

STATE: Did he make any statements about believing he was dead?

OFFICER STRUBLE: Yes, he did.

STATE: Did you ask Gabe what happened?

OFFICER STRUBLE: I did.

STATE: And do you recall what he said?

OFFICER STRUBLE: Something to the effect of they busted into my house

or they broke into my house, and then Zack Maas, he was trying to get him

out of his house, and he said, That’s when Zack Maas shot me in the back.

The State offered into evidence and played Officer Struble’s body camera video capturing

his response to Wagoner’s residence. The video captured the following exchange:

WAGONER: They stormed into my house.

OFFICER STRUBLE: Did you have the bat?

WAGONER: I chased them out with the bat, and they shot me in the back.

These statements, made while Wagoner was still at his residence, are nontestimonial

statements made to mitigate imminent or immediate danger and their admissibility was

conceded by Maas. Therefore, these statements were properly admitted by the District

Court.

2. Statement made while in the ambulance

¶26 Next, we turn to the statement made by Wagoner while he was being transported to

the hospital. Officer Struble accompanied Wagoner in the ambulance to “record any

spontaneous statements he made, [such as a] dying declaration” and to “gather any more

information that [he] could possibly get to identify a suspect.” Once in the ambulance,

Officer Struble testified that Wagoner “blurt[ed] out ‘M-a-a-s is his last name,’” in

response to the officers having trouble identifying the suspect’s last name. It is unclear

whether Maas included this statement in his concession of admissibility to the District

Court because it was not made at Wagoner’s residence. Yet Maas did not object to Officer

Struble’s body camera video being admitted and played to the jury, so long as the

admissible portion was limited to the time from Officer Struble’s arrival at the residence

to the ambulance’s arrival at Logan Health. Regardless, this statement was made during

an ongoing emergency.2 Although Officer Struble had left the scene, his intent to identify

the suspect was likely still an attempt to mitigate imminent danger. Because the shooter

was still at large, it was critical for the officers to attempt to bring him into custody as soon

as possible to protect the public. For these reasons, this statement is nontestimonial and

properly admitted by the District Court.

3. Statements made to Officer Struble and Detective Webster at Logan Health

The Confrontation Clause is not implicated by this statement because it was made during an ongoing emergency and was, therefore, nontestimonial. Accordingly, we do not reach the issue of whether this statement qualifies under the dying declaration exception to the Confrontation Clause.

¶27 Once Wagoner arrived at Logan Health emergency room, Officer Struble and

Detective Webster spoke with him further regarding the shooting. Maas asserts Officer

Struble and Detective Webster’s testimony related to Wagoner’s statements are presumed

testimonial by law under Mizenko. The State asserts these statements were made at a time

when law enforcement officers had not yet apprehended the shooter, and therefore, there

was still an ongoing emergency.

¶28 Officer Struble’s stated purpose of conversing with Wagoner after arrival at Logan

Health was to “gather more information about where the suspect may go or may be” and

“try to comfort him as much as [he] possibly could.” The substance of these conversations,

in pertinent part, were as follows:

STATE: And can you [Officer Struble] summarize what [Wagoner] said

happened at his home?

OFFICER STRUBLE: [Maas] and – he called him Jeremy or – didn’t know

his last name, didn’t know much about him – stormed into his house. Jeremy,

I think, grabbed him and [Maas] punched him up a few times, [Maas] had a

gun. [Wagoner] chased them out of his house, and that’s when they shot him

in the back.

DEFENSE COUNSEL: And I believe [Wagoner] said that he chased them

out with a baseball bat.

OFFICER STRUBLE: I recall him saying that, yes.

STATE: And when you [Detective Webster] - - you briefly spoke to

[Wagoner] for a couple minutes. Does that sound accurate?

DETECTIVE WEBSTER: Yes. Just a few minutes. He was hard to

understand and he was in a lot of pain.

STATE: And what did he say?

DETECTIVE WEBSTER: He said that [Maas] and a kid named Jerum

stormed his house, pointed a gun at him, and wanted him to go to a Luke’s

house.

STATE: Did [Wagoner] tell you why they wanted to go to this Luke’s house?

DETECTIVE WEBSTER: To try to determine what happened with stolen

property that [Maas] was accusing [Wagoner] of doing.

STATE: Did [Wagoner] state that [Maas] had punched him?

DETECTIVE WEBSTER: Yes.

¶29 Similarly to Wagoner’s statements in the ambulance, the statements made by

Wagoner at the hospital were imperative to the officers’ ongoing pursuit of the shooter.

These facts call for a different conclusion than in Martinez. There, we echoed our

conclusion in Tome that statements made to SANE, police, and DPHHS child protection

specialist were testimonial because “they were conducted as part of a police investigation

where there was no ongoing emergency. . . .” Martinez, ¶ 26 (citing Tome, ¶ 35 (internal

quotations omitted)). In the instant case, there was a clear ongoing emergency; a shooter

was still at large after shooting a man in the back. Therefore, these statements were

nontestimonial and properly admitted by the District Court.3

In its response to Maas’ Motion In Limine No. 3, the State conceded these statements were testimonial, but argued Maas had forfeited his right to confront Wagoner pursuant to Sanchez I where we held the forfeiture by wrongdoing doctrine did not require intent to silence the witness. State v. Sanchez, 2008 MT 27, 341 Mont. 240, 177 P.3d 444 (Sanchez I). The District Court relied on the State’s argument and admitted these statements under the forfeiture by wrongdoing doctrine. However, after this Court decided Sanchez I, the United States Supreme Court decided Giles which held the doctrine applies “only when the defendant engaged in conduct designed to prevent the witness from testifying” thereby making intent a required element. Giles, 554 U.S. at 359, 128 S. Ct. at 2683 (emphasis in original). The State now concedes this doctrine does not apply because there is no assertion that Maas shot Wagoner specifically to prevent him from testifying. During the motions hearing on this issue, the court refers to Gomez, but we presume

4. Statements to Wagoner’s brother, Braidy Yargus

¶30 After being life flighted to the Seattle hospital, Wagoner spoke with his brother,

Yargus, on the phone and in person. Maas argues that Wagoner’s statements to Yargus are

presumed testimonial because Yargus was in law enforcement. Yargus testified to the

following:

STATE: While at Harborview, did you have a conversation with [Wagoner]

about the shooting?

YARGUS: Yes.

STATE: And what did he tell you?

YARGUS: More than once, he would try and explain to me how it played

out. More or less, he said that some people came into his house at four in the

morning, give or take, roughing him up, beating him up, whatever the term

was that he used, being aggressive with him. And he kind of came to and

realized who it was and what was going on, and he fought back and kind of

gained his control, or whatever, and then he said that he was presented with

a firearm. And so he had a baseball bat somewhere on his wall behind him

that he said that he grabbed, more or less. There was some kind of

conversation about either a vehicle or a motorcycle, don’t know, some kind

of transaction that happened between him and one of the individuals, and

they wanted him to go somewhere with them. Then they want [sic] up the

stairs. And he said somewhere along the stairs, before he got to the top of

the stairs, he just heard a loud crack, and that was obviously when he got

shot. Whoever was behind him, below him, had to walk over him to get out

of there and leave. Then one of the neighbors in the adjoining apartments

opened the door, called 911 and, obviously, EMS came.

STATE: Did [Wagoner] ever tell you who shot him?

YARGUS: Yes. An individual, Zack, I’m not sure if it’s Maas or Moss.

STATE: And did you recognize that name?

the court meant Sanchez as it later states at trial. Regardless, the District Court reached the correct result for the other reasons discussed.

YARGUS: Yeah. He kind of filled me in and said, “Remember Renae? It’s

her son.”

Maas’s assertion that these statements are presumed testimonial simply because Yargus

was in law enforcement is misplaced. The reason statements may be presumed testimonial

when the declarant is speaking to government agents is such that “a declarant should

reasonably expect that the government will seek to use those statements at trial.” This is

juxtaposed with statements made to non-government agents where there is “much less of

an expectation that the government will make prosecutorial use of those statements.”

Mizenko, ¶ 18.

¶31 Yargus is a supervisory border patrol agent who is responsible for teaching new

agents at the academy. Yargus’s visit to his brother in the hospital was unrelated to his

employment. Likewise, the nature of Yargus’s government employment was not related

to potential prosecutorial use of the statements under the facts of this case. Therefore, we

analyze this conversation as though Yargus was a non-government agent under the primary

purpose test. The primary purpose of a conversation with a family member while the

declarant is fighting for his life in a hospital bed is not likely to be creation of an

out-of-court substitute for trial testimony. Here, Wagoner’s injuries were so severe that

his brother traveled to Seattle to visit him in what came to be his last days. Wagoner’s

statements to Yargus were nontestimonial.

5. Statement to Wagoner’s brother, Wade Wagoner

¶32 After receiving a phone call from a trauma surgeon who stated Wagoner was in

critical condition, Wagoner’s brother, Wade, came to visit him in the Seattle hospital.

Wade provided the following testimony:

STATE: Did [Wagoner] ever tell you how he became injured?

WADE: Yes, ma’am.

STATE: And what did he say?

WADE: So, he said that there was a dispute, and he said -- he initially said

that he woke up to somebody choking him and the other one beating him --he couldn't recall which was which -- or something of that nature. And after

some yelling and screaming, he -- they were taking him from there, is what

he said, to go work out the issues of a title of a car or something of that nature.

And he said [Auclaire] was in front of him, went up the stairs, and on his way

out he grabbed a little tee ball bat and said, “If we’re going somewhere, I’m

taking this with me for defense.” And then he said he got to the top of the

stairs and he felt the hot poker and heard a crack, or vice versa, heard a crack

and it felt like a hot poker. And he said then he heard a bunch of footsteps,

and somebody kicked him in the head and they went running out. And that

was the only time he spoke of it in my three and a half days.

¶33 Maas asserts that since Wagoner was familiar with the criminal justice system and

Maas had been apprehended and charged with a crime while Wagoner was still alive, the

statements were made with the knowledge they would be used against Maas. The State

asserts the conversations with Wagoner’s brothers were personal, and there is no evidence

to suggest they were made with the purpose of using them in the pending criminal case

against Maas. Similarly to Wagoner’s statements to his brother Yargus, Wagoner’s

statements to Wade were made after major surgery, and Wagoner expressed the fear that

he was going to die. Wagoner “felt judged” and Wade told him, “he didn’t have to worry

about that . . . he was safe, and [they] prayed.” These statements were personal statements

made to a family member in a time of crisis, and not with the intent of creating testimony.

Accordingly, these statements were nontestimonial.

6. Statements made to Detective Webster at Harborview

Detective Webster spoke to Wagoner again over the phone while he was at Harborview in

Seattle and testified to the following:

STATE: And what did [Wagoner] tell you?

DETECTIVE WEBSTER: He said - - he reiterated what happened. That

[Maas] and [Auclaire] had come into his house, that he was on his bed, I

believe, at first. That [Maas] pointed a gun at his head, that [Auclaire] put

him in a choke hold, that [Maas] punched him. Then he wanted to take them

to Luke’s house or show them -- show [Maas] that he didn’t have a part in

this theft. And that he wanted to get a bat for protection at Luke’s house.

And so [Auclaire] went up the stairs, then he went up the stairs, and then

[Maas] shot him.

STATE: When [Wagoner] -- when [Wagoner] was describing this choke

hold that you just mentioned, did [Wagoner] state he was in the middle of

[Auclaire] and [Maas]?

DETECTIVE WEBSTER: Yes.

STATE: Did [Wagoner] state he was not running up the stairs?

DETECTIVE WEBSTER: He said he was walking.

STATE: And with regards to grabbing the bat, did [Wagoner] give you the

impression that the Defendant was present when [Wagoner] grabbed the bat

in his room?

DETECTIVE WEBSTER: Yes.

These statements were made to a government agent the day after the shooting and the same

day Maas was arrested. Therefore, there was no longer an ongoing emergency. In Johnson,

we found a 911 caller’s opinion statement regarding the defendant’s intoxication and belief

she was about to drive under the influence of alcohol “functionally identical to any live,

in-court testimony the State would have elicited from him on direct examination should he

have been called to testify.” Johnson, ¶ 24 (internal citations omitted; internal quotations

omitted). Here, the statements made to Detective Webster were similar to testimony that

would have been elicited from Wagoner on direct examination had he survived to testify.

Unlike statements made to his brothers, Wagoner’s statements to Detective Webster, an

investigating law enforcement officer, were likely to be used in court. Since these

statements do not fall under the ongoing emergency exception, they are presumed

testimonial. The District Court erred in admitting these statements.

¶34 Issue Two: Whether the State demonstrated the error was harmless as to the

justifiable use of force defense and the deliberate homicide conviction.

¶35 This Court will not reverse a conviction “unless the record shows that the defendant

suffered prejudice by the improper admission of evidence.” State v. Henderson, 2026 MT

17, ¶ 24, 426 Mont. 200, 588 P.3d 1236 (internal citations omitted; internal quotations

omitted). To determine whether the defendant’s right to a fair trial was prejudiced, this

Court conducts a two-step analysis. Henderson, ¶ 24 (citing State v. Van Kirk, 2001 MT

184, ¶ 37, 306 Mont. 215, 32 P.3d 735). We review errors by first determining if the error

was a “structural” or “trial” error. State v. Mercier, 2021 MT 12, ¶ 30, 403 Mont. 34,

479 P.3d 967 (internal citations omitted). “Structural errors are those that affect the

framework within which the trial proceeds, rather than simply an error in the trial process

itself” whereas trial errors are those that “typically occur during the presentation of the case

to the jury.” Mercier, ¶ 30 (internal citations omitted; internal quotations omitted).

“Structural errors are reversible and require no additional analysis for prejudice.” Mercier,

¶ 30 (internal citations omitted; internal quotations omitted). Trial errors are “amenable to

qualitative assessment by a reviewing court for prejudicial impact relative to the other

evidence introduced at trial” and are subject to harmless error review. Van Kirk, ¶ 40

(citing Montana’s harmless error statute, § 46-20-701(1), MCA)). A deprivation of the

right to confrontation is a trial error and is therefore subject to harmless error review.

Mercier, ¶ 31 (internal citations omitted).

¶36 Our second necessary determination is whether the error was harmless under the

circumstances. Henderson, ¶ 24 (citing Van Kirk, ¶¶ 40-43). The State must prove the

error was harmless by demonstrating “there is no reasonable possibility that the

inadmissible evidence might have contributed to the conviction.” Van Kirk, ¶ 47.

Harmlessness must “be determined on the basis of the remaining evidence.” Mercier, ¶ 31

(internal citations omitted; internal quotations omitted). If the wrongly-admitted evidence

was admitted to prove an element of the offense, the state must “direct us to the cumulative

admissible evidence that proves the same facts as the tainted evidence and demonstrate that

the quality of the tainted evidence was such that there was no reasonable possibility it might

have contributed to the conviction.” State v. Santillan, 2017 MT 314, ¶ 35, 390 Mont. 25,

408 P.3d 130 (internal citations omitted). If the tainted evidence was not admitted to prove

an element of the offense, the State need not demonstrate cumulative admissible evidence

to prove the erroneous admission was harmless. Rather it must show “the quality of the

tainted evidence was such that there was no reasonable possibility it might have contributed

to the conviction.” State v. Derbyshire, 2009 MT 27, ¶ 47, 349 Mont. 114, 201 P.3d 811;

State v. Strizich, 2021 MT 306, ¶ 40, 406 Mont. 391, 499 P.3d 575. We consider ‘the

importance of the witness’s testimony in the prosecution’s case, whether the testimony was

cumulative, [and] the presence or absence of evidence corroborating or contradicting the

testimony of the witness on material points[.]” Mercier, ¶ 31 (quoting Delaware v. Van

Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986).

¶37 Under the cumulative evidence test, we analyze whether the jury was presented with

admissible evidence that proved the same facts as any tainted evidence proved. The rule

from Van Kirk states, the cumulative evidence test “looks not to the quantitative effect of

other admissible evidence, but rather to whether the fact-finder was presented with

admissible evidence that proved the same facts as the tainted evidence proved.” Van Kirk,

¶ 43 (emphasis in original). Van Kirk emphasizes the important distinction between the

“overwhelming evidence” analysis formerly applied by this Court—which considered only

the total amount of admissible evidence of guilt—and the current approach which focuses

on the admissible evidence that proves the same facts as the inadmissible evidence and the

“qualitative impact the inadmissible evidence might have had on the finder of fact.” Van

Kirk, ¶ 34 (emphasis added).

¶38 We first analyze whether the tainted evidence was admitted to prove an element of

the offense, and that determines whether we analyze for cumulative presentation. Maas

was charged with deliberate homicide for shooting Wagoner, so Detective Webster’s

tainted testimony would ordinarily be analyzed for cumulative evidence to the extent it was

used to prove elements of the offense of deliberate homicide. See Santillan, ¶ 35; Stewart,

¶¶ 46-47. But Maas admitted to shooting Wagoner, and asserted justifiable use of force in

defense of Auclaire. Therefore, the most relevant issue before the jury was whether Maas

was justified in shooting Wagoner.

¶39 Jury Instruction 24 informed the jury of the elements it must consider in determining

whether Maas was justified in his use of force, mirroring § 45-3-102, MCA:

A person is justified in the use of force or threat to use force when and to the

extent that he reasonably believes that such conduct is necessary to defend

himself or another against the imminent use of unlawful force.

However, a person is justified in the use of force which is intended or likely

to cause death or serious bodily harm only if he reasonably believes that such

force is necessary to prevent imminent death or serious bodily harm to

himself or another.

¶40 The jury was further instructed on what legal requirements they should consider to

determine whether Maas’s use of force was justified. They include: (1) the danger of harm

to the Defendant or another must be a present one; (2) the force threatened against the

Defendant or another must be unlawful; (3) the Defendant must actually believe the danger

exists, in that the use of force was necessary and the amount of force used was necessary;

(4) the Defendant’s belief in these aspects must be reasonable; and (5) a person who is

lawfully in a place and is threatened with injury or loss of life has no duty to retreat or

summon law enforcement before using force. The jury was also instructed that once the

Defendant has offered evidence of justifiable use of force (JUOF), the State must prove

beyond a reasonable doubt that the Defendant’s actions were not justified. “[O]nce a

defendant has offered evidence of justification, the State has an additional responsive

burden to prove beyond a reasonable doubt the defendant’s actions were not justified.”

State v. Dulaney, 2025 MT 67, ¶ 23, 421 Mont. 251, 566 P.3d 534 (internal citations

omitted), overruled on other grounds by State v. Donahue, 2025 MT 144, ¶ 18 n.3,

423 Mont. 1, 571 P.3d 1068).

¶41 During deliberations, the jury asked the court, “Did Maas lose his right to justifiable

protection of [Auclaire] when he first pulled his gun on [Wagoner]?” The Court conferred

with the parties and responded:

Whether the Defendant (Maas) was justified in his use of force is a question

of fact to be determine[d] by the jury based on all the evidence and

instructions given you. The instructions are intended to provide the jury with

all laws applicable to the evidence the jury heard during the trial to determine

these questions of fact.

Because the jury was grappling with Maas’s justification to shoot Wagoner when

considering the above elements, the State was required to show cumulative admissible

evidence relevant to the JUOF elements that Maas was not justified in his use of force.

¶42 Here we analyze for harmless error the testimonial statements Wagoner made to

Detective Webster while he was at Harborview. When we compare Detective Webster’s

inadmissible testimony with the admissible testimony presented at trial, the following facts

are cumulative of the listed speaker’s admitted testimony:4 (1) Maas and Auclaire entered

Wagoner’s home (Officer Struble, Detective Webster, Auclaire, Maas); (2) Maas pointed

a gun at Wagoner (Detective Webster, Yargus, Auclaire, Maas); (3) Auclaire restrained

Wagoner (Officer Struble, Detective Webster, Wade, Auclaire, Maas); (4) Maas punched

Wagoner (Officer Struble, Detective Webster, Yargus, Wade, Auclaire); (5) Auclaire,

Wagoner, and Maas were leaving to go to Luke’s house (Detective Webster, Auclaire,

To the extent Detective Webster is listed as a speaker, we are referring to the admissible testimony from discussions with Wagoner at Logan Health.

Maas); (6) Maas was present when Wagoner picked up a bat for protection (Wade, Maas);

(7) Auclaire was ahead of Wagoner on the stairs and Maas was behind him (Wade,

Auclaire, Maas); and (8) Maas shot Wagoner in the back as he was going up the stairs

(Weis, Deputy Matthews, Officer Struble, Yargus, Maas). The only statement from

Detective Webster that is not cumulative with other evidence is Wagoner’s statement he

was walking up the stairs.

¶43 The Concurrence and Dissent highlights Timberli Veyna’s testimony. Her

testimony providing details of the conflict were not based on her own perception, like

Auclaire’s. Veyna repeated what Maas later told her about the shooting, along with her

doubts as to his credibility. Veyna’s statements about the conflict are not her own, but fall

into the categories of prior consistent or inconsistent statements by Maas. The Concurrence

and Dissent correctly notes some of her testimony damages Maas by recalling he intended

to “claim” self-defense and he later mused that Wagoner “deserved” what he got.

Concurrence and Dissent, ¶ 80.

¶44 Maas argues on appeal the State offered statements regarding whether Wagoner was

walking up the stairs or running, and whether Maas was present in the room when Wagoner

picked up the bat to show Wagoner was not the primary aggressor. Even if Detective

Webster was the only one to utter the words that Maas was “in the room” when Wagoner

picked up the baseball bat, there is no version of events by any narrator in which Maas was

unaware that Wagoner had picked up a baseball bat. The fact that Maas was aware

Wagoner picked up a bat was cumulative and undisputed.

¶45 As to Detective Webster’s non-cumulative statement that Wagoner was walking up

the stairs, the record contains statements disputing that. Maas testified that Wagoner

“definitely ran up the stairs” and raised the bat to hit Auclaire, who was already at the

landing at the top of the stairs. Officer Struble testified that Wagoner said he chased the

intruders out with a baseball bat, and the jurors heard Wagoner’s statement to that effect

on Officer Struble’s body camera video, while Wagoner was still lying on the floor of the

apartment landing. The remaining statements from other witnesses—repeating either what

Maas or Wagoner told them—are vague as to that detail. Auclaire stated he walked up the

stairs and then turned to discover Wagoner was directly behind him, unaware whether

Wagoner had walked or run up the stairway behind him.

¶46 Having determined the cumulative or disputed nature of Detective Webster’s

testimony, we now consider the importance of the testimony in the State’s case and what

evidence exists to corroborate or contradict the testimony on the justifiable use of force

claim. The State claims “there was ample admissible evidence for the jury to reject Maas’

assertion that he shot [Wagoner] in the back in defense of [Auclaire] . . . .” This is not an

“overwhelming evidence” test, but rather an examination of the harmlessness of the tainted

evidence relevant to the other admissible evidence regarding Maas’s assertion of justifiable

use of force. Strizich, ¶¶ 40-41.

¶47 At trial, the jury was presented with text messages from Maas that supported his

intent to kill Wagoner. These messages included threatening statements such as: “I’m

gonna take ur life away”; “Get yourself right with the big man cuz your time is coming,

soon”; and “you better get your affairs in order because your gonna be wishin you could

just go back to the pen instead of what you got comin buddy.” Maas’s messages to others

also confirm his intentions. Maas told a friend “I told [Wagoner] I was gonna kill him”;

and “I’m thinking about holding off on going over there for a minute so [Wagoner’s] not

ready for it.” A few months later Maas told another person “If I run into [Wagoner] though

he’s fucked I’m gonna beat the life right out of [sic] him.” Finally, the morning of the

homicide, Maas texted Kirchner, “I’m just gonna get revenge then I’ll be back . . . .” Maas

testified on direct examination that once he was in Wagoner’s residence, he pulled out his

firearm, “racked” a round into the chamber, and then walked around the corner to initially

confront Wagoner.

¶48 Additionally, the State presented photos of Wagoner’s apartment and the stairwell

where Wagoner was shot. Along with these photos, the State presented sketches that

showed the stairwell was two feet, six inches wide. The State presented these exhibits to

Maas on the stand, and the following testimony occurred:

STATE: That’s the doorway -- that’s that panoramic doorway photo of the

entry. And we can see that doorway down the stairs. That’s a normal-sized

height door; correct?

MAAS: Yes.

STATE: And so it would be difficult for the victim to swing that long

Louisville Slugger back, up and over, without banging into the top of the

door, wouldn’t it?

MAAS: I -- I don’t believe so.

STATE: The -- you told Detective Webster that it was a tight area and that

you really can’t get a swing in that area. Do you remember saying that?

MAAS: I never said that you couldn’t get a swing, no.

STATE: Okay. Mr. Maas, I’m handing you a copy of your transcript. If you

turn to page 29, I’ll have you look at line 22, please.

MAAS: Line 22, yes.

STATE: Okay. And Detective Webster says, “Yeah. So he’s holding the bat,

it would be pretty -- I mean, not to say that it couldn’t happen, but it would

be pretty hard to get a full swing on somebody.” What did you say?

MAAS: I said “Yeah.”

The jury was presented with this evidence, which shows the size of the stairwell would

have made it difficult, if not impossible, for a man of Wagoner’s stature to have swung a

bat without hitting the ceiling or the door frame. The State also confronted Maas with his

statements to law enforcement that he could not see Auclaire ahead of Wagoner on the

stairs, and Auclaire’s statement that he could not see Maas at the bottom of the stairs

because Wagoner was in the way.

¶49 The Concurrence and Dissent focuses the harmlessness analysis on the State’s

burden to prove Detective Webster’s inadmissible statements did not improperly negate

Maas’s justifiable use of force defense and lead to his conviction. Concurrence and

Dissent, ¶¶ 78-79. We explained in Mercier what is relevant for “qualitative” analysis of

the evidence: “We consider ‘the importance of the witness’ testimony in the prosecution’s

case, whether the testimony was cumulative, [and] the presence or absence of evidence

corroborating or contradicting the testimony of the witness on material points.” Mercier,

¶ 31 (quoting Delaware, 475 U.S. at 684, 106 S. Ct. at 1438). Here, Detective Webster’s

statement—from Wagoner—that he was walking up the stairs is not cumulative with other

admissible testimony. Instead, admissible testimony from Wagoner and Officer Struble

that Wagoner was trying to chase the intruders out of the house with a bat, may contradict

it and corroborate Maas’s testimony that Wagoner was running up the stairs.

¶50 The Concurrence and Dissent greatly overestimates Detective Webster’s

inadmissible statement’s impact on the case when considered with the other admissible

evidence: Maas’s threats to Wagoner, the armed intrusion into Wagoner’s home at 4:00

a.m., the physical assault on Wagoner, Maas’s changing story, the confined stairwell, and

Maas’s flight thereafter. Concurrence and Dissent, ¶ 79. The jury heard all of this

throughout the trial and the closing arguments. When assessing the walking versus running

question, it had a minor qualitative impact, if any.

¶51 The jury heard only one line in the prosecutor’s closing argument about walking up

the stairs, “He tells both his brothers he’s walking up the stairs.”5 Maas pounced on the

disputed testimony and reminded the jury of Officer Struble’s and Wagoner’s statements.

“If you believe that the bat came out to do something, to run them out of the house, that’s

a justified act,” meaning Maas was justified in shooting Wagoner. Maas thoroughly

examined the changing stories offered by Auclaire and pointed to the jury instruction to

view his testimony with distrust because he was legally accountable for the offense. Maas

then undermined Detective Webster’s testimony by arguing Wagoner could not have been

holding the bat as the officer relayed, or the bat would not have remained on the landing

when Wagoner fell.

Maas correctly noted Detective Webster is the one who stated Wagoner said he was walking. The other witness statements are not clear on this point.

¶52 In rebuttal, the State walked the jury through justifiable use of force instructions and

argued that once another man entered his home in the middle of the night and pointed a

loaded gun at him, “At that point, Gabe Wagoner is justified in using deadly force against

Zack Maas.” Responding to the disputed testimony over Wagoner’s statement to Officer

Struble, the State argued, “[I]f he was chasing them out with a bat, it’s because he’s

perfectly justified to do so, because they stormed his house.”

¶53 Here, like in Mercier6 and Van Kirk, the jury was presented with sufficient

admissible evidence of the elements of JUOF that proved all the same facts from Detective

Webster’s inadmissible testimony, except the statement that Wagoner was walking up the

stairs. The jury heard evidence, including statements from Wagoner, contradicting the

claim that he walked up the stairs. The detail was ultimately insignificant to the State’s

case because the argument boiled down to whether the jury believed Maas was justified in

shooting Wagoner if he used or threatened to use force to evict his intruders. The

qualitative impact of the noncumulative and disputed statement that Wagoner was walking

up the stairs is minimal when assessed with the evidence of Maas’s numerous and explicit

threats to Wagoner, Maas’s armed entry into Wagoner’s home in the middle of the night,

the physical evidence of the confined staircase, and ultimately the State’s argument that

Wagoner was legally justified in threatening or using force against the intruders if the jury

We found sufficient admissible evidence to uphold the homicide conviction, but reversed the conviction for Tampering with evidence due to a lack of admissible “physical or testimonial evidence” supporting that conviction. Mercier, ¶ 33.

believed that testimony. Accordingly, the State has met its burden in establishing the error

was harmless.

¶54 Issue Three: Whether the District Court erred when it allowed questioning

regarding a juvenile prior bad act.

¶55 Maas asserts the District Court abused its discretion by allowing the State to

cross-examine him about an incident during his adolescence where he shot a woman in the

head with a BB gun while she was jogging. The State argues this evidence was properly

admitted to rebut Maas’s self-serving testimony that he was a kind and peaceable person.

¶56 Before analyzing the parties’ competing arguments as to relevance and prejudice,

we first address the admissibility of youth court records. Montana’s juvenile court statutes

broadly and explicitly exclude evidence from youth court proceedings, “Neither the

disposition of a youth under this chapter nor evidence given in youth court proceedings

under this chapter shall be admissible in evidence except as otherwise provided in this

chapter.” Section 41-5-106, MCA. We have held this statute excludes trial testimony

concerning juvenile proceedings during cross-examination of a youth’s character witness.

State v. Holzworth, 201 Mont. 54, 56-57, 651 P.2d 1255, 1256 (1982). In Holzworth, we

found the policy underlying the Youth Court Act excludes all evidence of this nature, and

we adopted the reasoning of the Tenth Circuit holding the same. Holzworth, 201 Mont. at

56-57, 651 P.2d at 1256 (citing Cotton v. United States, 355 F.2d 480 (10th Cir. 1966);

Annot., 63 A.L.R.3d 1112 (1975)).7

The Cotton court reasoned, “the appellant has not been convicted of a crime or even prosecuted as a criminal under the Juvenile Delinquency Act. The adjudication of a status rather than the conviction of a crime would seem to fall within the rationale of the rule which generally excludes

¶57 Maas was arrested and adjudicated a delinquent youth on the offense of assault with

a weapon (if committed by an adult) following the BB gun incident. The State’s offered

evidence appears to have come from Maas’s youth court proceeding, and should have been

barred by statute and Holzworth. Maas argued as such in his pretrial motion in limine. At

a hearing on the motion, the State conceded it could not offer any evidence from youth

court proceedings in its case in chief, so the District Court granted Maas’s motion to

exclude this evidence. However, the State sought leave to offer evidence from Maas’s

juvenile record if Maas opened the door to it during trial. The following exchange

occurred:

THE COURT: Are we all on the same page here, that the State cannot proffer,

initially, this evidence, and the only way that it might be admissible is if the

defense, through a statement, a representation, or through examination of a

witness, opens the door? Are we in agreement that that's the way it can come

in?

DEFENSE COUNSEL: Absolutely, Judge. It wasn’t my intent to preclude

them from going under the rules during the trial.

THE COURT: Right. Okay. Well, it does sound like -- then, that the parties

are not in an active dispute about whether this juvenile record evidence is

admissible if the State were to proffer it originally during its case-in-chief,

and so the -- the motion, as I see it, is conceded.

STATE: Yes, Your Honor.

THE COURT: The motion is granted. It has been conceded by the State.

And I would think that, [Defense Counsel], after your long years of practice,

you will probably be quite aware of how the door may be opened and will

make every reasonable effort to actually sidestep that possibility.

evidence of arrest or indictment without conviction.” Cotton, 355 F.2d at 482. The distinction which determined Cotton’s holding is not present here.

DEFENSE COUNSEL: I’ve had some experience in that regard, Judge.

THE COURT: Okay. Fair enough.

¶58 “Relevant evidence means evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” M. R. Evid. 401. Relevant evidence is

generally admissible under M. R. Evid. 402. Evidence of a person’s character is generally

inadmissible for proving the person acted in conformity with that character.

M. R. Evid. 404(a). A defendant may, pursuant to Rule 404(a)(1), present evidence of his

or her own pertinent, good character trait that is inconsistent with the alleged offense for

the purpose of supporting an inference that he or she is not guilty of the offense. By

choosing to present this type of evidence, the defendant “opens the door” for the State “to

present otherwise inadmissible cross-examination or extrinsic evidence regarding specific

instances of prior conduct relevant to impeach or rebut the subject good character

testimony.” State v. Pelletier, 2020 MT 249, ¶ 16, 401 Mont. 454, 473 P.3d 991 (citing

M. R. Evid. 404(a)(1)). “The rebuttal evidence must be legitimate and relevant.” State v.

Nolan, 2003 MT 55, ¶ 16, 314 Mont. 371, 66 P.3d 269 (citing State v. Eklund, 264 Mont.

420, 429, 872 P.2d 323, 329 (1994)).

¶59 Relevant evidence “may be excluded 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.” M. R. Evid. 403. District courts have broad discretion to weigh the

probative value of evidence against the risk of unfair prejudice. State v. Madplume,

2017 MT 40, ¶ 32, 386 Mont. 368, 390 P.3d 142 (citing State v. Stewart, 2012 MT 317,

¶ 68, 367 Mont. 503, 291 P.3d 1187). Evidence is unfairly prejudicial “if it arouses the

jury’s hostility or sympathy for one side without regard to its probative value. . . .” Rule

403 favors admission of evidence even if it is potentially prejudicial. Madplume, ¶ 33.

Opening the Door to Excluded Evidence

¶60 The very basic question of whether a defendant may open the door to otherwise

excluded youth court evidence is not squarely before us. Maas conceded that question

before trial, and does not argue in his appeal that the statute precludes the State from

offering the evidence to rebut Maas somehow opening the door to that issue. We are left,

therefore, to determine whether the District Court erred in ruling that Maas opened the door

to his prior juvenile crimes through his testimony, and whether the evidence was relevant

and not unfairly prejudicial.

¶61 The State asserts since Maas provided a “nonresponsive, self-serving answer” to the

State’s questioning, he opened the door to character evidence during the following

testimony:

STATE: Why did you say that you were gonna get revenge to [Kirchner],

your fiancé? Did you need to talk tough and sound tough to her?

MAAS: No, not exactly. I mean, maybe a little bit. But she knows, more

than anybody, how not tough I really am. She knows, more than anybody,

that I’m not a fighter, I’m a pretty kindhearted person.

Following the court’s recess, the cross-examination continued the next day as follows:

STATE: Now, yesterday, you testified and said, “I’m not a fighter, I’m a

peaceful person”; correct?

MAAS: Correct. I said that - - I said that [Kirchner] knows better than anyone

that I’m not a fighter.

STATE: Okay. Timberli testified you’ve punched holes in walls, though;

right?

MAAS: I don’t believe that was true, sir.

STATE: But she testified to it; correct?

MAAS: I believe she did, yes. But I don’t believe that was actually true.

STATE: And you’ve damaged some cars for no reason whatsoever, haven’t

you, just like [Wagoner]?

MAAS: No, sir.

STATE: Are you sure?

MAAS: I am sure.

STATE: You didn’t shoot out windows of cars as a kid?

MAAS: No.

STATE: Did you shoot a woman in the head with a BB gun?

At this point in the trial, Maas’s counsel objected to the questioning and proceedings were

held at side bar, outside the presence of the jury. After hearing arguments from both sides,

the District Court allowed the following testimony:

STATE: So, Mr. Maas, I want to make sure we have a very clear record.

Yesterday you testified that your fiancé knows, more than anybody that, and

I quote, “I’m not a fighter, I’m a pretty kindhearted person”; right?

MAAS: That’s correct, yes.

STATE: And then I asked you to confirm that you shot a woman in the head

with a BB gun; correct?

MAAS: I did when I was in sixth grade, yes.

¶62 At side bar, the District Court first considered whether the prosecution “acted

improperly in an attempt to elicit testimony from Mr. Maas that, wittingly or unwittingly,

would cause him to, as we say, ‘open the door’ to prior instances of conduct that may be

relevant to rebut, contradict, or impeach evidence of a relevant trait of character.” The

court found the prosecution did not force open the door, and Maas’s answer to the question

was self-serving. At the core of the State’s inquiry was the reason for Maas’s statement

that he was going to get revenge on Wagoner. The State’s questioning was unrelated to

Maas’s character and there is no reason to contemplate the State was trying to elicit a

response from Maas that would open the door for the State’s rebuttal.

¶63 The court then considered whether Maas opened the door to an inquiry into specific

instances of conduct that would seek to impeach his credibility that he is a peaceful and

kind person. The court found the door was opened by Maas because his testimony was

“nonresponsive, gratuitous, and self-serving” and permitted questions about prior conduct

that would seek to rebut the notion that Maas was not a fighter and a kindhearted person.

Pursuant to the hearing on his motion to exclude bad acts, Maas was forewarned not to

open the door to the State’s rebuttal on this issue, and yet he did so anyway.8 The District

Earlier in the trial, the State unsuccessfully attempted to introduce Maas’ juvenile record through the testimony of his mother Renae Maas. The State argued the Defense had repeatedly painted Wagoner as a violent person, and therefore opened the door for the State to introduce Maas’ record as a youth. The court sustained Maas’s objection on the grounds that Maas may introduce evidence of the victim’s violence, and the State may respond with evidence of the victim’s peacefulness. M. R. Evid. 404(a)(2). It does not automatically open the door to evidence of Maas’s prior record of violence. Maas was present for this attempt and was further warned of the danger of opening the door to his prior record based upon self-serving statements as to his character for peacefulness.

Court did not abuse its discretion when it found Maas opened the door with non-responsive

and self-serving character testimony.

Relevance and Danger of Unfair Prejudice

¶64 Following the State’s question regarding the BB gun incident, the following

testimony occurred:

STATE: And the BB actually embedded in this gal’s scalp; correct?

MAAS: That is what I heard, yes. I did not know that I had hit her with the

BB gun.

STATE: You were shooting from behind her?

MAAS: I was up on a hill in the woods with my friend. And we had been

shooting at pop cans and trees. And, yes, she was jogging on the road maybe

a hundred - - a football field away, a hundred yards or so, I would say.

STATE: Okay. That’s not a kindhearted thing to do, is it?

MAAS: No, it’s not.

STATE: And that whole experience must have taught you that firearms of

any kind, even simple BB guns, are dangerous and are not to be handled

recklessly, didn’t it?

MAAS: Yes, I do know that. I’ve known that after taking hunter’s ed and

after doing a concealed carrying class, I know that guns can be dangerous.

STATE: And the hunter safety rules, do you remember what those are?

MAAS: Yes.

STATE: What are they?

MAAS: To always know your backdrop. To always know if your gun is

loaded or not. Never to point the gun at a person, unless you have to.

STATE: The rule is, you don’t point a weapon at somebody or something

unless you’re willing to kill it; correct?

MAAS: Correct.

¶65 Immediately following this line of questioning, the court reminded the jury that the

appropriate purpose of the testimony was to “contradict [] Maas’s testimony that he is

either not a fighter and a pretty kindhearted person, or both,” and that “[Maas] is not on

trial for that prior incident.”

¶66 Maas argues although the court allowed reference to this incident for the purpose of

rebutting good character evidence under M. R. Evid. 404(a)(1), it is still subject to reversal

on Rule 403 grounds, citing Pelletier. Maas asserts admitting this evidence “allowed the

jury to give undue importance to the juvenile conviction” and prejudiced the justifiable use

of force defense. He argues the “juvenile nature of the prior bad act diminished any truly

probative value” and no limiting instruction could cure its prejudicial nature.

¶67 We agree that Maas’s statement, “I’m not a fighter, I’m a pretty kindhearted

person,” opened the door to some character evidence under Rule 404(a)(1). However, that

does not mean the door is open to all previous misconduct. State v. Gowan, 2000 MT 277,

¶ 18, 302 Mont. 127, 13 P.3d 376. While the act of shooting a stranger with a BB gun is

relevant in that it tended to make the existence of a disputed fact—whether Maas was

kindhearted—less probable, see M. R. Evid. 401, the relevance must be weighed under the

circumstances of a prior juvenile act being presented as character evidence relevant to an

accusation of an adult crime. The remoteness of a juvenile act reduces its probative value

and increases its potential for unfair prejudice when admitted in the criminal trial of an

adult. See State v. Sattler, 1998 MT 57, ¶¶ 50-51, 288 Mont. 79, 956 P.2d 54. If the

otherwise relevant conduct is remote in time as compared to the current conviction, the

potential for unfair prejudice must be considered. State v. Heine, 169 Mont. 25, 29,

544 P.2d 1212, 1214 (1976); see also Gowan, ¶ 29, Sattler, ¶51.

¶68 In Pelletier, we examined whether a juvenile prior bad act was relevant under

M. R. Evid. 401(a). There, the District Court allowed the State to introduce an alleged

prior bad act Pelletier committed when he was 15 years old to rebut Pelletier’s self-serving

good character testimony. When evaluating the relevance and probative value of this prior

bad act, we looked to whether the defendant unquestionably committed the act, the inherent

danger of the jury giving the act undue weight over the actual case-specific evidence, the

remoteness in time of the act, and whether the limiting instructions could “adequately

reduce the risk of prejudice to a fair level.” Pelletier, ¶¶ 24-28. Pelletier’s prior bad act

evidence was “not [] indisputable and probative for the Rule 404(a)(1) purpose offered.”

Pelletier, ¶ 24 (distinguishing from prior bad acts in State v. Kaarma, 2017 MT 24, 386

Mont. 243, 390 P.3d 609 and State v. Austad, 197 Mont. 70, 641 P.2d 1373 (1982) “that

were highly probative because those defendants unquestionably committed the prior bad

acts and the acts squarely rebutted and contradicted the character testimony at issue . . . .”).

This case does not suffer from the same problem. It is undisputed that Maas shot a woman

with a BB gun when he was a youth.

¶69 The District Court found the BB gun incident was consistent with the “apparent

highly reckless, presumptuous, if not arrogant state of mind” Maas exhibited when entering

Wagoner’s home in the middle of the night and pointing a gun at him. However, the BB

gun act was committed when Maas was 12 or 13 years old, and he was 26 years old when

he shot Wagoner. Maas’s exercise of poor judgment and impulsiveness as a 12-year-old

boy does not automatically inform a jury as to his violent or criminal thinking as an adult,

which is exactly how the State argued this evidence. The United States Supreme Court has

long recognized children cannot be treated the same as adults. Miller v. Alabama, 567 U.S.

460, 481, 132 S. Ct. 2455, 2470 (2012) (“Our history is replete with laws and judicial

recognition that children cannot be viewed simply as miniature adults”) (internal citations

omitted; internal quotations omitted). In Miller, the Court notes the fundamental character

differences between adolescents and adults including adolescents’ “lack of maturity and

underdeveloped sense of responsibility, [which lead] to recklessness, impulsivity, and

heedless risk-taking.” Miller, 567 U.S. at 471, 132 S. Ct. at 2464 (internal citations

omitted; internal quotations omitted). We recognize minors with undeveloped maturity

and consequence management should at times be shielded from the lifelong consequences

of their decisions. This recognition has driven the distinction between adolescents and

adults for purposes of sentencing. See, e.g., Steilman v. Michael, 2017 MT 310, ¶ 17,

389 Mont. 512, 407 P.3d 313.

¶70 The critical question is whether this remoteness in time and difference in maturity

is enough to diminish the probative value of the evidence in this case. In general,

remoteness pertains “only to the weight of evidence rather than its admissibility.” State v.

Adams, 2026 MT 130, ¶ 21, 428 Mont. 383, 591 P.3d 650 (citing Pelletier, ¶ 25) (internal

quotations omitted). However, “Whether the evidence must be excluded because it is too

remote depends on the nature of the evidence and the purpose offered.” Adams, ¶ 21 (citing

Pelletier, ¶ 25) (internal quotations omitted); see also State v. Stout, 2010 MT 137, ¶ 101,

356 Mont. 468, 237 P.3d 37 (Nelson, J., dissenting) (“[W]hether an uncharged act is truly

too remote in time will depend on the particular purpose for which the evidence is offered

and the proponent’s theory of logical relevance . . . .”). Here, like the circumstances in

Pelletier, the timeliness of the BB gun incident is important to the State’s theory of logical

relevance because the State is using it to prove Maas’s character at the time of the shooting.9

See Adams, ¶ 24.

¶71 In Pelletier, we found “[t]he significant difference in maturity level between a

15-year-old adolescent and a 30-year-old adult . . . significantly diminished any probative

value that the [] allegation might otherwise have had, if taken as true . . . .” Pelletier, ¶ 25.

Here, Maas behaving recklessly in his adolescence—behavior not uncommon for children

of that age10—offers little insight into his character as an adult at the time of the shooting.

What is missing from the remoteness analysis is a record of whether Maas succeeded or

failed in his juvenile probation and rehabilitation requirements,11 and whether Maas

The juvenile evidence was offered to rebut Maas’ statement regarding not only his own good character, but his girlfriend’s purported knowledge of his good character. “[S]he knows, more than anybody, how not tough I really am. She knows, more than anybody, that I’m not a fighter, I’m a pretty kindhearted person.” The State had already examined Anna Kirchner regarding her knowledge of Maas’ statement he was seeking revenge, and her knowledge of Maas’ threatening language generally toward Wagoner.

The author still carries scars from more than one BB gun and air stapler war from a misspent youth.

Maas sought to also exclude his juvenile drug and criminal mischief charges in the years following the BB gun shooting. The record does not indicate whether Maas successfully completed his juvenile probation and disposition for these offenses, either. Among the exceptions for sealing youth court records are “records in any case in which the youth did not fulfill all requirements of the court’s judgment and disposition,” records necessary for sexual or violent offender registrations, and other similar purposes. Section 41-5-216(4), MCA. The State did not argue this theory of admissibility at trial or on appeal.

demonstrated a continuation of reckless or violent criminal conduct indicating relevance

of the prior offense to the disputed fact or to rebut Maas’s self-serving character statement.

See State v. Babella, 177 Mont. 275, 277-78, 581 P.2d 838, 840-41 (1978) (Defendant was

convicted at age 19 of a felony theft committed while a youth, convicted of another felony

theft two years later as an adult, then tried for obstructing a peace officer who tried to arrest

him on a felony warrant four years after that). The evidence was insufficiently relevant to

Maas’s mindset as an adult and was unfairly prejudicial due to remoteness of time and the

State’s failure to demonstrate a connection between the juvenile criminal conduct and

Maas’s kind-hearted or non-violent character as an adult. The District Court properly gave

a limiting instruction to the jury, but the evidence was not highly relevant to begin with,

and therefore the limiting instruction was insufficient to cure the prejudice. Pelletier, ¶ 27.

On the whole, we hold the District Court abused its discretion in admitting the adolescent

BB gun incident.

¶72 Although in error, the admission of evidence of the BB gun incident was harmless

based on the remaining evidence. Maas contends the admission of the prior bad act allowed

the jury to infer he had a propensity for recklessness and violence which prejudiced his

JUOF defense. However, Maas shot Wagoner after invading his home in the middle of the

night, and after sending Wagoner multiple threatening texts, that included: “I’m gonna take

ur life away,” “Get yourself right with the big man cuz your time is coming, soon,” and

“you better get your affairs in order . . . .” Maas texted friends that he was “gonna beat the

life right out of [Wagoner],” and possibly most damning, immediately prior to going to

Wagoner’s home, Maas texted Kirchner that he was “gonna get revenge . . . .” Maas’s only

defense was that his actions were justified because he was defending Auclaire from what

he claimed was Wagoner’s attempt to hit Auclaire with a baseball bat. But even according

to Maas’s version of events, this happened on the stairs of Wagoner’s own home that Maas

and Auclaire had invaded in the middle of the night, with Maas brandishing a gun. It is

questionable, at best, whether Maas was even entitled to a JUOF instruction.

Section 45-3-105(1), MCA (the use of force in defense of a person is not available to a

person who is attempting to commit, committing, or escaping after the commission of a

forcible felony). To the extent Maas was allowed to claim JUOF in defense of Auclaire, it

did not credibly hold up against the mountain of evidence against him, most of which was

self-authored. Given the substantial evidence discussed above, there is no reasonable

possibility the adolescent BB gun incident had any significant qualitative impact on Maas’s

conviction.

CONCLUSION

¶73 We affirm the District Court.

/S/ CORY J. SWANSON

We Concur:

/S/ LAURIE McKINNON

/S/ JAMES JEREMIAH SHEA

/S/ JIM RICE

Justice Katherine M. Bidegaray, concurring in part and dissenting in part.

¶74 I concur in the Court’s conclusions that Gabriel Wagoner’s statements to Detective

Webster from Harborview were testimonial and inadmissible and that the District Court

abused its discretion in admitting the BB-gun evidence. I respectfully dissent, however,

from the Court’s conclusion that the Confrontation Clause violation was harmless and from

its disposition.

¶75 A Confrontation Clause violation is subject to harmless-error review. State v.

Mercier, 2021 MT 12, ¶ 31, 403 Mont. 34, 479 P.3d 967; State v. Van Kirk, 2001 MT 184,

¶ 47, 306 Mont. 215, 32 P.3d 735. The State, as the beneficiary of the constitutional error,

bears the burden of proving harmlessness beyond a reasonable doubt. Mercier, ¶ 31. Van

Kirk rejects an “overwhelming evidence” inquiry. Van Kirk, ¶ 43. The threshold question

is whether the particular tainted evidence was admitted to prove an element of the charged

offense. If it was, the State must identify cumulative admissible evidence proving the same

facts and demonstrate that the quality of the tainted evidence was such that there was no

reasonable possibility it might have contributed to the conviction. If it was not, the State

need not make the same-fact showing, but it still must demonstrate qualitatively that there

was no reasonable possibility the tainted evidence might have contributed to the conviction.

State v. Henderson, 2026 MT 17, ¶ 25, 426 Mont. 200, 588 P.3d 1236; State v. Santillan,

2017 MT 314, ¶ 35, 390 Mont. 25, 408 P.3d 130.

¶76 The non-element branch governs the only noncumulative Harborview statement—

that Wagoner was walking rather than running. That statement did not prove an element

of deliberate homicide; it bore on whether the State carried its responsive burden to

disprove Maas’s justification defense. Justifiable use of force remains an affirmative

defense even though the State has that responsive burden. Section 45-3-115, MCA. The

majority describes the factual requirements of the affirmative defense as “JUOF elements”

and applies the same-fact inquiry. Opinion, ¶¶ 39–42. Because that inquiry imposes an

additional requirement on the State, its application does not prejudice Maas or resolve our

disagreement. The dispositive question remains whether the State satisfied the qualitative

inquiry required under either branch. Under the non-element branch, the State need not

identify admissible evidence proving the same fact. But that does not make cumulativeness

irrelevant. In assessing the quality and impact of the tainted evidence, we consider its

importance; whether admissible evidence duplicated, corroborated, or contradicted it on

material points; and how the State used it at trial. Henderson, ¶¶ 25, 27–32; Mercier, ¶ 31

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986)). The

inquiry does not permit us to resolve credibility or speculate how cross-examination might

have altered the witness’s testimony. Mercier, ¶¶ 31–32. The strength of the State’s

remaining evidence is relevant to that assessment, but it cannot substitute for examining

the particular quality and impact of the tainted evidence.

¶77 Here, identity was not disputed because Maas admitted that he shot Wagoner. The

central disputed issue was whether Maas was justified in using deadly force to defend

Jerum Auclaire. The instructions required the jury to decide whether the danger of harm

to Auclaire was present, whether the force threatened against him was unlawful, whether

Maas actually believed force was necessary and that the kind and amount of force used was

necessary, and whether those beliefs were reasonable even if mistaken. The State bore the

proof beyond a reasonable doubt that Maas’s actions were not justified. The Court

characterizes the case as “boil[ing] down” to whether Maas was justified in shooting

Wagoner if Wagoner used or threatened force to evict the intruders. Opinion, ¶ 53. But

Wagoner’s right to use some force against intruders did not resolve whether the particular

force allegedly threatened against Auclaire was unlawful, whether the danger to Auclaire

was present, or whether Maas actually and reasonably believed deadly force was necessary

to prevent an imminent bat strike. The instructions left those factual questions for the jury

to decide.

¶78 The State used the Harborview testimony principally to rebut Maas’s justification

defense. Through Detective Webster, the jury heard Wagoner’s uncross-examined account

that Maas and Auclaire entered his home, Maas pointed a gun at his head, Auclaire placed

him in a choke hold while Maas punched him, Wagoner wanted a bat “for protection at

Luke’s house,” and Wagoner was “walking” rather than running up the stairs when Maas

shot him. Much of that account duplicated admissible evidence concerning the entry,

Maas’s display of the gun, the bedroom confrontation, Wagoner’s possession of the bat,

the participants’ order on the stairs, and Maas’s identity as the shooter. The majority now

acknowledges that the express statement that Wagoner was walking rather than running

was the only noncumulative detail in the Harborview account. Opinion, ¶ 42.

¶79 The State presented substantial and compelling admissible evidence against

justification. Maas had threatened to kill or severely harm Wagoner, texted that he would

“get revenge,” entered Wagoner’s home unannounced in the early morning while armed,

pointed the gun at Wagoner, gave shifting accounts, fled after the shooting, and failed to

summon help. The narrow stairway and low doorway also supported an inference that a

full overhead bat swing would have been difficult, although the testimony did not establish

that such a swing was impossible. This evidence strongly supported motive, the State’s

portrayal of the encounter as coercive from its inception, consciousness of guilt, and the

State’s contention that Maas’s trial account was implausible. It weighs heavily in the

harmless-error analysis. But it did not itself establish how Wagoner was moving, whether

he was raising the bat, or whether he was preparing to strike Auclaire at the moment Maas

shot him.

¶80 The admissible evidence concerning that moment presented competing accounts.

Maas testified that Wagoner was immediately behind Auclaire with the bat raised over his

head. Veyna testified that Maas told her Wagoner grabbed the bat and “went to run after

[Auclaire],” and that Maas shot Wagoner as he ran after Auclaire. She also testified that

Maas said Wagoner had not yet struck Auclaire, that he would “claim” self-defense, and

that Wagoner “deserved it.” Those latter statements severely undermined Maas’s

justification claim. At the scene, Wagoner stated that he had “chased them out with the

bat.” Auclaire previously told detectives that he saw the bat resting on Wagoner’s

shoulder, did not feel threatened, and did not think Wagoner was preparing to swing. At

trial, however, Auclaire testified that he had not known about the bat until Maas told him

about it the next morning and admitted that he had “lied to the detectives to try to cover

[his] friend’s back.” The physical evidence supported the State’s argument that an

overhead swing would have been difficult, but it did not resolve the conflicting descriptions

of Wagoner’s movement or conduct.

¶81 Those conflicts cut both ways. Wagoner’s contemporaneous statement that he had

chased the men with the bat and Maas’s pursuit account as related by Veyna could have

diminished the force of the later Harborview statement that Wagoner was walking. But

the later statement also supplied the victim’s account supporting the State’s side of the

disputed movement question. The statement that Wagoner was walking did not establish

that he was not raising the bat or preparing to strike. It nevertheless contradicted Maas’s

pursuit account as related by Veyna and, when considered with Auclaire’s prior no-threat

account and the stairway evidence, supported the State’s theory that the asserted threat was

not imminent.

¶82 The brothers’ admissible testimony did not provide the corroboration the State later

claimed. Wade—not Braidy Yargus—recounted Wagoner’s statement, “If we’re going

somewhere, I’m taking this with me for defense.” Yargus testified that Wagoner told him

he grabbed the bat and that, after “they went up the stairs,” Wagoner heard a loud crack

somewhere along the stairs before reaching the top. Neither Wade nor Yargus testified

that Wagoner was walking rather than running when Maas shot him.1 That express

statement entered through Detective Webster’s inadmissible account.

¶83 The prosecutor nevertheless told the jury that the “common elements” of the

brothers’ accounts included that Wagoner had told both brothers he was walking up the

stairs. The Court correctly recognizes that Detective Webster, not either brother, supplied

Yargus’s direct examination contained no testimony that Wagoner was walking rather than running. The question, “Did Gabe state he was not running up the stairs?” and the answer, “He said he was walking,” occurred during Detective Webster’s testimony.

the statement. Opinion, ¶ 51 n.5. The Court also notes that the prosecutor devoted only

one line of closing argument to it. Opinion, ¶ 51. That brevity tempers the statement’s

force. But qualitative significance does not depend solely on the number of lines devoted

to evidence. By attributing the walking statement to both brothers, the State presented the

victim’s single unconfronted statement as though two admissible witnesses had

independently corroborated it. I do not treat the closing argument as a separate claim of

prosecutorial misconduct. The argument matters because Henderson directs us to consider

how the State used inadmissible evidence and whether that use bolstered the State’s

account or undermined the defense. Henderson, ¶¶ 27, 30–32.

¶84 Defense counsel, for his part, challenged and attempted to use the Harborview

account. He cross-examined Detective Webster about differences among Wagoner’s

accounts and invoked the walking statement in closing to argue that the bat’s location

supported Maas’s version of the shooting. Those circumstances further temper the

statement’s prejudicial force and demonstrate that its use was not wholly one-sided. They

do not, however, eliminate the State’s use of the victim’s unconfronted movement account

or the unsupported appearance that two admissible witnesses had corroborated it.

¶85 I do not conclude that the jury necessarily would have accepted Maas’s justification

defense without the Harborview testimony. The State’s admissible evidence was

substantial, and the walking statement was neither conclusive nor entirely unchallenged.

But it retained independent qualitative significance: it supplied the victim’s own account—

relayed through the investigating detective—of his movement at the critical moment; it

contradicted Maas’s pursuit account as related by Veyna; it was consistent with and could

have bolstered Auclaire’s prior no-threat account; and the prosecutor enhanced its apparent

reliability by telling the jury that both brothers had independently corroborated it. Even

accounting for the evidence weighing strongly against justification and defense counsel’s

efforts to challenge and use the statement, a reasonable possibility remains that the

constitutional error contributed to the jury’s rejection of the defense. The State therefore

has not proved the error harmless beyond a reasonable doubt.

¶86 Because the Confrontation Clause violation independently requires a new trial, I do

not decide whether the BB-gun error independently requires reversal. I concur in the

Court’s conclusion that the District Court abused its discretion in admitting that evidence.

Maas’s volunteered assertions that he was “not a fighter” and “a pretty kindhearted person”

opened the door to appropriately tailored character rebuttal. But the State’s ensuing

questions concerning what the juvenile incident taught Maas about firearm danger and

pointing a weapon at another person went beyond rebutting that characterization and linked

the remote childhood incident to Maas’s knowledge and use of the handgun in the charged

offense. I therefore do not join the Court’s separate harmlessness analysis. The BB-gun

error does not form part of my conclusion that the Confrontation Clause violation

independently requires reversal.

¶87 I would reverse and remand for a new trial.

/S/ KATHERINE M. BIDEGARAY

State v. Z. Maas

Authorities cited

Opinion · public domain