*1
MONTANA,
STATE OF
Appellee,
Plaintiff and
FRANKS,
DEAN
JASON
Appellant.
Defendant
DANo.
13-0385.
11, 2014.
on Briefs June
Submitted
8, 2014.
Decided October
CHIEF Opinion JUSTICE McGRATH delivered the Court. Jason appeals Dean Franks from felony ¶1 his conviction of sexual intercourse Court, without consent in Eleventh Judicial District County. Flathead We reverse and remand for a new trial. appeal, On we address whether District Court abused its discretion it when denied Franks’s motion for new trial.
PROCEDURAL AND FACTUAL BACKGROUND 28, 2010, On fifteen-year-old December C.L. told her father roommate, Franks, his former Jason her raped when she" was years day, eleven old. The next C.L. and her father went Kalispell Department report Police the allegation. During a forensic 11,2011, January interview on C.L. told Detective Michelle O’Neil that she decided to years come forward after four of newspaper because reporting article Franks had molesting five-year-old been accused of boy. article, published The December accompanied by was Franks, photograph recognized. which C.L. C.L. told Detective O’Neil she wanted to help that case if she could. On May was Franks with sexual intercourse tried,
without consent and sexual assault. Before Franks moved to DC-10-444(B), the charges in Cause No. any mention of exclude than prejudicial in the as more reported newspaper, case M. R. character evidence under improper 403 and M. R. Evid. under 404(b). charges. of those acquitted he pointed Franks out Evid. testimony explaining to offer responded it intended The State The newspaper article. delayed prompted disclosure was C.L.’s testimony to offer about explained expert it also intended cases, expert and this in child abuse patterns sexual article, testimony, combined with The why when she did. help C.L. disclosed would understand motion and concluded hearing held a District Court character, but rather not offered as of Franks’s evidence disclosure, District and therefore was admissible. explain charges acquitted offer he was Court said Franks could any prejudice. in order to counteract unfair continuances, 5,2012. The began trial multiple After November following made the reference statement:
during opening [C.L.], will state that the reason she
You’ll hear from who forth, disclosed, finally and came was because Jason fully *3 article, he accused was an and was newspaper. was the There [C.L.] five. And saw the raping boy, age a little four or Franks, article, picture and it which had Jason newspaper recognized him, down to the brought everything back home. She face, suddenly thought, got she “I’ve come scar his if I can an that case.” impact forward to see have article, she had seeing newspaper that before the C.L. testified ¶6 friend, friend, D.B.; incident to her another close disclosed the best R.A.; testified that after a A.A.; her and D.B.’s father. She boyfriend, father, her telling think discussion with D.B.’s she started to about own newspaper helped article also her father. C.L. was asked whether helped “I it me come responded, say come forward. She wouldn’t I the gave bigger everything, only It me a that wasn’t forward. visual C.L. not remember whether she saw the one.” testified she could dad, “it close in the talking before to her but was newspaper article O’Neil that after time frame.” later testified she told Detective She article, person there another newspaper the “I knew that was... seeing thing to them that done to me....” She that had had the same done help Detective O’Neil she wanted to case. testified she told brought newspaper up also that C.L. Detective O’Neil testified interview, coming forensic and said her reason during article help time in that case. forward allegations. Franks then in his He testified defense and denied picture had the newspaper testified that his been in because he had sexually assaulting girlfriend’s been his son. He testified guilty charges by that he had been tried and found of those jury. cross-examination, prosecutor On asked Franks whether he heard state, selection, attorney during jury guilty “that not doesn’t mean innocent.” closing Prior to argument, was instructed that newspaper only why was admitted to show C.L. incident,
decided disclose the and could not be for any used other argument, purpose. During closing stated: Boy, guy Franks, [C.L.] lucky named Jason who roommate, happened to be her paper, dad’s is in the accused molesting little boy. What are the odds? list, are the guy just
What odds that fall that she happened to Jason, roommate, my named up dad’s paper? shows he Is easy target of the paper, target because or is he the he because did this? was convicted both sexual intercourse without consent gmdsexual assault. He moved for a new trial acquittal. He claimed at trial failed to out the prosecution’s theory bear newspaper prompted disclosure, article had her because
testimony revealed she had already told friends about the incident seeing newspaper before He article. claimed the prejudice unfair by testimony caused about the article far outweighed its argued value. He also that the conviction was not supported evidence, by sufficient and that his conviction of both sexual intercourse without consent and sexual assault due process violated subjected him to double jeopardy. stipulation, By the District Court vacated the sexual assault conviction. District Court respect denied motion with remaining issues. The District Court reasoned despite some testimony, conflicts there showing was evidence article motivated C.L’s disclosure. The District Court also said the *4 instruction of acquittal charges and evidence Franks’s prior to any possible served counteract prejudice. The District Court stated about the not deny did Franks a fair impartial trial. The District Court also concluded there was supporting sufficient evidence the conviction. Franks to was sentenced Prison, fifty years in years suspended. the Montana with ten
435
REVIEW
STANDARD OF
for
for new trial is reviewed
of a motion
district court’s denial
A ¶11
11, 49,
Brummer,
MT
287 Mont.
State v.
¶
of discretion.
abuse
it acts
its discretion when
168,
A
court abuses
DISCUSSION it its when denied Court abused discretion Whether the District motion a new trial. for may order a new trial guilty, a district court Following verdict 46-16-702, MCA. The justice.” Section “if in the interest of required or of its motion of the defendant may order a new trial either on court Brummer, accord, 35. Franks pursuant powers. its inherent ¶ own to grounds prior charges for a new trial on the moved 404(b) Evid. have been excluded under M. R. child molestation should He M. Evid. 403. prejudicial more than under R. and was impartial to trial. right these errors denied him the a fair claimed rule, general prove not admissible As a character evidence is Eighteenth Ct. Judicial State Dist. 404; M. conduct. R. Evid. Dist., P.3d 415. Evidence of 358 Mont. ¶ crimes, wrongs, may prove person’s be admitted to other or acts conformity that he or acted in character order show she Stewart, 404(b); on a occasion. M. R. Evid. particular character 317, 61, 503,291 may, MT P.3d 1187. The evidence ¶ motive, however, proof of for “other such as purposes, used intent, knowledge, identity, or opportunity, preparation, plan, absence 404(b). or R. than prohibiting of mistake accident.” M. Evid. Rather 404(b) evidence, prohibits theory M. R. admission Evid. Dist., Eighteenth Judicial admissibility. 47. Evidence of bad ¶ requires for a “the purpose not admissible if it is offered acts is Eighteenth person guilty person,” act bad inference from bad “ Dist., Judicial may ‘proves if it a material but be admissible defendant’s criminal requiring any issue without inference ” Stewart, & (quoting Wright 22A Charles Alan disposition,’ Evidence Federal Practice and Procedure: Graham, Jr., W. Kenneth 2012)). (Supp. § crimes, wrongs, other or acts is offered Even if evidence of 404(b) require its M. R. Evid. non-propensity purpose, valid might tempt decide if “the nature of the evidence
exclusion *5 436 on an basis.” against improper propensity case defendant
Stewart,
crimes, wrongs, or
may unduly
62. Evidence of other
acts
¶
defendant,
prejudice
jury against
regardless
of the
purpose
State v.
Sage,
admitted. See
which
is
MT
nominally
the evidence
2010
404(b)
156, 36, 357
way,
Mont.
1284. In
M. R.
P.3d
Evid.
¶
403,
must be
in concert
M. R.
viewed
Evid.
which allows
if
probative
substantially
exclusion
relevant evidence
its
value is
outweighed
danger
prejudice.
of unfair
Evidence
offered
that is
404(b)
for a
R.
purpose
subject
valid
under M.
Evid.
is still
Stewart,
R.
balancing
prescribed by
test
M. Evid. 403.
67.
¶
prejudice may
Unfair
arise from
evidence that arouses the
jury’s
side,
hostility
sympathy
or
for one
or
confuses misleads the trier
fact,
v.
unduly
or
State
distracts
from the main issues.
Bieber,
262,
309,
2007 MT
Mont.
testimony about the article relevant because explained it disclosing C.L.’s reason for years. the incident after four The evidence would be offered for a purpose character, other than to show Franks’s 404(b) and thus M. R. Evid. not require did “highly its exclusion. The inflammatory” evidence, nature of however, child molestation required the District and the State Van Court tread with caution. Kirk, 184, 46, see also United 735; Mont. 32 P.3d (4th Ham, 1993) States v. (“Indeed, 998 F.2d Cir. no inflammatory be more prejudicial could or more than molestation.”). allegations of child As the ruling District Court noted its on Franks’s motion for a testimony
new regarding the timing of and reasons for C.L.’s was, respects, Nevertheless, some contradictory. there supporting theory the State’s of admissibility. C.L. testified that she told Detective O’Neil she wanted to in the help prosecution reported of the case the newspaper. Detective O’Neil said, during interview, testified that C.L. the forensic other case was her for coming Testimony reason forward. also established 28, more father on December her C.L. disclosed the incident 3. The on December published after the article was than three weeks why help explain fact C.L. did in testimony presented trial police her December abuse to father and disclosed the not its use of the however, State did limit that the apparent, It In opening his timing of C.L.’s disclosure. explaining raping a little statement, Franks was “accused stated charges, the of those acquitted After Franks testified he been boy.” guilty “that doesn’t attorney state prosecutor asked if he heard *6 that, than rather question implied This the mean innocent.” Franks a serial child molester proven guilty, until was being innocent prosecutor later commented gotten it. The simply away who had in “accused of showing up newspaper, of Franks the on “the odds” the strengthened implication molesting boy.” a little This comment likely therefore more have Franks was a child molester and that C.L. assaulted jury’s hostility of aroused the The State’s use the evidence
¶20 Bieber, 59. The Franks, resulting prejudice. See ¶ in unfair toward they were not to consider Court’s instruction to the District for than to any purpose other about the protect the defendant C.L.’s disclosure was not sufficient explain repeated in insinuations. prejudice from the face of the State’s undue testify Similarly, allowing of Franks Sage, See the value prior charges negated by the State’s cross- acquitted he was the examination, the of criminal disregard right which frank for showed guilty. until presumed proven to be innocent defendant 46-16-204, MCA. Section arguments presented District Based on information
¶21 overwhelmingly stage, given motion in limine Court evidence, child the wiser course would prejudicial nature of molestation admissibility. on its The issue could have ruling have been to withhold delayed became an issue been the event that the revisited credibility. for C.L.’s trial, however, ruling motion for a new When Franks’s exactly knew hindsight, the full
District Court had benefit manipulated the District Court’s in which the State had manner impression attempted safeguards and used the evidence to create Clearly, was a habitual abuser of children. danger outweighed by prejudice ofunfair value this evidence 403. See under M. R. Evid. and should have been excluded 112-13, at 694-95. To hold that Pendergrass, 179 Mont. 586 P.2d deny not Franks a and impartial introduction did fair Havens, See 200-01, 945 an trial was abuse discretion. 285 Mont. at (“[I]n of a for P.2d at context motion a new the court Therefore, ruling....”). should have its we reconsidered reverse and remand for a new trial. already Because we have determined Franks’s conviction must be
reversed, remaining we not need address issues raised in his appeal. WHAT, COTTER,
JUSTICES BAKER and SHEA concur. McKINNON, specially concurring. JUSTICE decision, Although I I agree concur the Court’s do with all Opinion. case, that is said our The Court decides this and reverses conviction, post-trial ruling Franks’s based on the District Court’s denying motion however, for a new trial. In so doing, Court offers several District Court’s pre- relating statements trial rulings on Franks’s motions limine. I believe these statements are disposition inconsistent with Court’s ultimate case and they consequently undermine the Court’s I analysis. am thus my compelled disagreement note with them. First, opines the Court “the wiser course” have would been for
the District “to ruling” Court withhold on the admissibility of the Opinion, disagree. article. “A 21.1 motion in limine is request guidance by regarding evidentiary the court question, provide which court its parties discretion to aid the *7 v. Corp., Hunt K-Mart formulating strategy.” 11, trial 1999 MT ¶ Crider, 444, 981 in State v. 294 Mont. P.2d example, 275. For 139, 375 Mont. P.3d we observed that sought Crider had a through motion in limine to exclude evidence of his prior bad acts. unsuccessful, adjusted
When his motion was he strategy his trial accordingly and challenged instead the State’s use of that evidence. Crider, ¶ A in process present similar unfolded the sought case. Franks
through prohibit motion in limine to the State from introducing evidence the article he reporting that had been 10-444(B). with molesting five-year-old boy in DC When that unsuccessful, motion was Franks made the tactical choice to confront directly. the prosecution evidence Franks and the were entitled to a ruling they on his in motion limine so that could formulate their Indeed, respective strategies. trial both prosecution Franks and the the newspaper addressed article respective opening their statements, offering views of what differing the article would I do not subscribe C.L.’s disclosure. ultimately regarding show parties the Court should have left District Court’s view that the confusion uncertainty potential engendering thereby hanging, proceed. the should to how case encouraged, even use approved, and repeatedly haveWe “valid and limine, motions serve recognizing that such
motions advantages” in trial “special and even have purposes useful” 156, 36, 290 Mont. Ingraham, 1998 MT process. ¶ Crider, MT 103; 19; Ankeny, ¶ Graham, Wright Alan Kenneth W. 391; also 21 Charles & 243 P.3d see 2005) (2d 5037.10, ed. Jr., 760-64 § Procedure Federal Practice and limine). Certainly, there advantages of a motion (listing some of the admissibility situations where relevance evidence be necessary it will in which case be depend developments will on Here, ruling. or to revisit a delay ruling on the motion limine story however, present prosecution intended explain in order to included about prosecutors and the reasons for C.L.’s disclosure. Franks timing of and the District Court would allow to know at the outset whether needed told, strategies story they adjust could their trial so withholding ruling would have been accordingly. agree I cannot “the course.” wiser Second, allowing the issue of the Court states in the event that
about the article “could have been revisited credibility.” Opinion, C.L.’s disclosure became an issue for delayed implications delayed 21. The of this statement are disclosure already credibility and that the defense first was not issue C.L.’s challenge credibility timing on the of her disclosure C.L.’s based prosecution present any testimony before the could article. I on disagree both counts. R. is defined in M. Evid. and includes “Relevant evidence” Thus, bearing of a upon credibility
“evidence witness.” since credibility, delayed upon bore C.L.’s evidence was relevant from the outset and its admission was admissibility impeachment theory as the Court dependent on an suggests. said” Franks had denied C.L.’s This was “he said/she case. accusations, proof hinged largely State’s whether C.L., however, years report four believed C.L. had waited jurors testimony, In evaluating sexual misconduct. alleged why delayed long disclosing she had so naturally would wonder *8 at delay necessarily the in her disclosure was Consequently, incident. regard, brought up issue. In this C.L. had the article in her with Kalispell interview Police Detective Michelle O’Neil and stated part impetus her Upon seeing that it was the behind disclosure. the article, only victim, realized she was not the she to she and indicated to help O’Neil that she wanted with the other case. victim’s Before gave Dutton, Wendy the notice it intended to call Dr. cases, expert child sexual assault to assist the understanding dynamics of child sexual abuse. Dr. Dutton would abuse, testify many why that there are reasons children disclose sexual help protect and one of the is to Omitting reasons or others. portion story of C.L.’s impeded jurors’ would have evaluation of her United States v. credibility and the truthfulness of her disclosure. Cf. (3d 2010) (evidence Green, F.3d Cir. defendant’s prior bad acts could be the government introduced establish FBI, informant’s reason for cooperating thereby “improve credibility her jury”). Accordingly, with the delayed disclosure was relevant from the M. R. 401. outset. Evid. Additionally, prosecution’s need for integrity narrative is a why testimony
second reason
potentially
article was
at
admissible
outset. The
surrounding
circumstances
C.L.’s
including
part
an integral
story
article —were
disclosure —
Indeed,
the prosecution sought
present
jury.
noted,
jurors
would
naturally
four-year
wonder about the
delay between the alleged
offense and C.L.’s disclosure of it. Franks was not entitled to tie the
prosecution’s hands
force the prosecution
significant
to omit
pieces
stoxy
simply by deciding
in advance not to make an
issue
delayed
at
trial. “[A] criminal defendant
not
may
way
or
stipulate
admit his
out of the full
force
evidentiary
of the case
States,
as the
it.” Old
v. United
present
Government chooses to
Chief
(1997).
186-87,
519 U.S.
117 S. Ct.
The “need for
evidentiaxy
integrity
richness and
in presenting
may
narrative
a case”
uncharged
increase the
value of
misconduct evidence and
Chief,
Old
support
admissibility.
its
519 U.S. at
S. Ct. at 651.
integrity
capacity
jurors
Narrative
“is often essential
satisfy
Chief,
obligations
places
law
Old
on them.”
519 U.S.
“People
story
S. Ct. at 653.
interrupted by
who hear
gaps
puzzled
missing
abstraction
chapters,
jurors
asked
story’s
rest a momentous decision on
put
truth can feel
upon
being
responsibility knowing
asked
take
that more could be said
Chief,
have heard.” Old
they
than
defense made evidence, frustrating prosecution’s thus story in C.L.’s and the hole Chief, proof should be.” Old jurors’ expectations proper about what “the given particularly apparent This 519 U.S. at S. Ct. 654. is testimony Dr. that one reason children disclose sexual abuse Dutton’s come The they learn that another has forward. because victim testimony on without significance of this would have been lost and Dr. Dutton’s testimony the article. The article about designed help prosecution’s were understand statement, credibility. Contrary the Court’s case and evaluate C.L.’s first Opinion, necessary prerequisite it was not a the defense ¶ credibility. for C.L.’s The need for delayed make issue valid, admitting integrity independent basis for narrative noted, subject, balancing. to Rule 403 article — point. In my discussing This leads to final the District Court’s trial, for the Court that “the ruling on Franks’s motion a new observes exactly hindsight, District Court had the full benefit of and knew manipulated had the District Court’s manner which the State impression safeguards [article] and used the create attempted Opinion, of children.” 22. The that Franks was habitual abuser ¶ “the value of this evidence was opines Court then have danger prejudice and should been outweighed by unfair Opinion, M. R. 22. The Court cites Havens excluded under Evid. 403.” (1997), 195, 200-01, for State, that, for new a district in the context of a motion proposition evidentiary Opinion, ruling. court need reconsider an earlier Although I I dispute principle, necessary do not this believe it is necessitating to be clear that the circumstance case retrial rulings arose not from an error in the District initial on Court’s but, rather, prosecution’s Franks’s motions in limine from the ultimate during misuse of the trial for purposes that Court expressly District forbidden. point. Havens illustrates this The against case involved a lawsuit failing stoplight busy State install a at a intersection where injured.
Havens
Havens filed a motion in limine to exclude
accident,
his alcohol
date of
consumption
arguing
that this evidence
responded
was irrelevant.
that it would
produce testimony linking
consumption
Havens’s alcohol
as a
contributory
basis,
factor in the accident. On this
court
district
assurance, however,
denied
Despite
Havens’s motion.
the State’s
no
*10
produced
establishing
evidence was
at trial
a connection between
consumption
Thus,
Havens’s alcohol
and the cause of the accident.
Mont,
trial,
Havens,
moved
Havens
for a new
which was denied.
285
197-98,
that the district court “did not err it initially when denied Havens’ motion upon in limine based testimony State’s assurance that the to presented at trial link would Havens’ alcohol consumption to the question Havens, 201, 945 causation.” Mont. P.2d at 944. We erred, held rather, that the court district after trial when it failed to proper attribute significance to the fact the State had not presented such testimony. explained: We verdict,
[A]fter the when Havens renewed his contention in the trial, context of a motion for a new the court should have prior ruling reconsidered in light its of the State’s failure to fulfill its promise to elicit establishing Havens’ alcohol consumption causing as a in factor the collision. Havens before, persistently contended during and after the trial evidence was not relevant and it would and did cause prejudice materially affecting right to a fair trial. Mont, Havens, 201, 945 that, P.2d at We held under these circumstances, the district court in abused its discretion denying the motion a for new trial. principle The same In applies here. advance
prosecution gave notice that it intended to introduce evidence of four bad acts Franks: a about 1989 sexual offense involving 17-year-old girl; testimony a 1992 sexual offense girl; testimony about involving 12-year-old involving 5-year-old charge sexual misconduct on a 2010 reporting (of report by and a recent ultimately acquitted); Franks was boy which with her intercourse alleging that Franks sexual a female filed Franks two years 13 or 14 old. when she was sometime in ground on the seeking to this evidence limine exclude motions charges evidence” and relevant it character “propensity involving C.L. the 1989 and 1992 agreed with Franks The District Court theory
incidents, identify “failed to that the State had concluding of the evidence.” permit which would admission logical relevance “seeking prove that essentially was observed that the State court young interested in being sexually for has the character Defendant regarding conformity that character girls he acted and that inference not C.L.,” propensity of impermissible which “is the sort 404(b).” article, respect to the pursuant to Rule With allowed however, theory valid concluded that the State’s the District Court mitigated: could be any prejudice and that article is not offered regarding The evidence engage has the sexual assault prove that Franks character for the infer he acted conformance with that by assaulting and when C.L. disclosed are Why character C.L. in this and the evidence is C.L.’s motive issues case disclosing any prejudicial admitted. As unfair and should be effect, into fact that he Defendant can offer evidence the acquitted charges. determining the A trial court has broad discretion in relevance admissibility Derbyshire, evidence. 811; Oatman, 139, 143-44, Mont. (1996). I do not Court abused its
911 P.2d believe District *11 incidents, of the and 1992 while excluding discretion in for the limited of allowing purpose 2010 article Rather, of reasons for C.L.’s disclosure. explaining timing and Mont, 944, Havens, problem similar to 945 P.2d at prosecutors improper remarks developed at trial when one made rulings. spirit that violated the letter and the District Court’s statement, prosecutor jury: “You’llhear opening In his told disclosed, [C.L.], finally will that the that she from who state reason in fully forth, Franks was and came was because Jason was accused prosecutor “[Franks] then indicated newspaper.” appeal, a State concedes on raping boy, age little four or five.” As the statement, report this was an accurate as the did not "rape.” Furthermore, stating Franks had been accused of that Franks inflammatory "raping boy” had been accused little was an accusation, Rogers, State v. 2013 MT 348; Kirk, 184, 46,306 P.3d Van Mont. in particularly apparent light which is ofthe voir dire proceedings.
Substantial time was whether spent ascertaining prospective jurors could fairly impartially alleged decide case of sexual against 11-year-old girl. offenses Six members of the venire they impartial admitted could not be and thus were excused cause, opined District Court while others raised concerns but they impartial could remain Given the nature nonetheless. of the dire, charges and in portraying the concerns raised voir Franks as “rapist” provoking feelings indignation serial risked and revulsion jurors. During trial, allegations Franks took the stand and denied C.L.’s cross-examination, misconduct. On referenced picture inquired whether his appearance in picture the December 2010 was the same as how he (the looked late and early period alleged offenses C.L.). result, against examination, As a redirect Franks explained picture that his paper had been in the because he had been involving girlfriend’s with sexual offense his son. He testified that he was tried for offense jury and the had found him not guilty. On recross-examination, the prosecutor attempted impeach testimony by pointing out to Franks that “not guilty doesn’t mean innocent” —the being sexually obvious innuendo that Franks assaulted five-year-old girlfriend’s got away son with it. This insinuation improper grounds. on several First, in weighing probative against danger value of unfair prejudice, the District Court reasoned that Franks could introduce the acquittal any fact of his to mitigate prejudice from resulting integral about the article. This was to the District Court’s Rule 403 balancing. conveying jury In that Franks’s acquittal “doesn’t innocent,” [he’s] mean the prosecutor very safeguard undercut the put place District Court had when it ruled that the State could present testimony about the article. Second, whether actually committed the sexual offense decide,
referenced the article was not something needed to cases, or even consider. In other where being asked to infer person’s knowledge, motive, intent, person’s etc. based on the
445 necessary,for proponent the act, it is prior bad commission of find the jury prior can that upon which the present sufficient evidence States, 681, v. U.S. Huddleston United 485 act in fact occurred. See Plancarte- States v. United (1988); 690, 1496, 108 S. Ct. 1501-02 (9th v. United States 2004); Alvarez, 366 F.3d 1058, 1062-63 Cir. 2012). (9th here, the District Cir. But Bailey, 696 F.3d 799-800 jury that could the article so the admit Court did not (1) boy then sexually five-year-old molested a find that Franks (2) offense. The inferences of that based on Franks’s commission draw timing of and solely explain the the court admitted reported allegations truth of the for disclosure. The reasons the article was not issue. remark Third, prosecutor’s perhaps importantly, most for he an offense which jury to hold Franks accountable
invited protections of the already acquitted. tried and One been Fifth Amendment by Jeopardy Clauses guaranteed Double II, Section 25 of the Article United States Constitution and prosecution protection against separate Constitution is Montana Swenson, v. U.S. Ashe acquittal. 397 for same after offense Barron, 69, 14, State v. (1970); MT 445-46, 90 1189, 1195 S. Ct. dangers admitting 342 Mont. P.3d 519. One is will convict him not prior of a misconduct that defendant’s Chief, Old charged, past U.S. for the offense but for misdeeds. Derbyshire, 27, 51, State v. 180-81, 117 650-51; Ct. at S. when danger aggravated 811. This is P.3d mistakenly acquitted of a implies that the defendant was is a “got away with it.” There risk prior essentially offense —that he guilty is not of the jury, even if it believes defendant anyway punish in order to present charge, will convict the defendant that the acquitted charge. him There is also a risk prior believes, acquittal, of the spite will convict because it likely thus more have prior committed the offense and defendant dangers “These ... strike at heart committed the offense. Clause.” Jeopardy in the Double protections embodied 2012). (Haw. Mundon, P.3d offense is not held that evidence Some courts have acquitted of that offense. See if the defendant has been
admissible Wakefield, Mundon, 221-23; 278 N.W.2d (Minn. Annotation, Admissibility Bello, 1979); Christopher 308-09 Acquittal as Other Evidence Affected Defendant’s Offense 2014). (1983 & While this Offense, Supp. 3-4 25 A.L.R.4th §§ not, rule, my adopted bright-line Court has knowledge, same we acquittal adjudication have held that an “a conclusive constitutes [prior] defendant not commit the did offense” the State is trial on estopped asserting at the the current offense from facts that *13 contrary acquittal. Hopkins, 504, 517, 219 are Mont. (1923). 1106, 1110 P. reasons, for all of Accordingly, prosecutor’s these insinuation offense,
that Franks in fact committed the 2010 his despite acquittal charge, improper. of that was Lastly, closing argument, the prosecutor suggested that the C.L. jury should believe since she had implicated same man who molesting was accused of another child: who, So we have is young girl what here from the first friends], [to time she discloses her "it my indicates was father’s roommate,” Then, and that continues. newspaper before the out, article comes her then-boyfriend she tells guy it’s a named Jason, continues, that’s all he Then finally knew. she and man, and, comes out lucky. Boy, lucky is she is she Franks, guy that a named Jason happened who to be her dad’s roommate, is in the paper, accused of molesting a little What boy. are the odds?
What are odds that the fall guy just that she happened list, Jason, my roommate, named up dad’s shows paper? Is he easy target an the paper, because of or is he the target because he did this? argument
This jury invited the to infer that Franks sexual is a predator preys young children, who on that his acts of sexual aggression by character, are dictated and that he acted conformity with sexually assaulting character C.L. This is the very precedents, inference that Rule our and District Court’s rulings all forbid. In deciding justice” whether "the required interest that Franks granted trial, 46-16-702(1), MCA, a new § the District Court needed
to consider the to comply State’s failure with the rulings court’s Mont, limine, Havens, Franks’s motions at at P.2d 944. concludes, The Court implicitly and I agree, that the District Court greater significance should have attributed prosecution’s to the misuse manipulation and District Court’s attempted safeguard. Opinion, 22. Franks on trial was for two sexual against offenses C.L. The District Court allowed State to present C.L. disclosed the after seeing misconduct an article that he had been picture reported and displayed which boy. prior young Evidence against misconduct charged with sexual more inflammatory prejudicial highly child molestation —even doing the same where, here, has been the defendant so However, Kirk, 46. rather 17; Van Opinion, ¶ another child. thing to in accordance with the arguments questioning than limit his dwelled on and embellished rulings, prosecutor District Court’s timing of beyond explaining the charge and went nature of Collectively, remarks prosecutor’s for C.L.’sdisclosure. reasons molester. The a serial child implied jury committed the invited the to infer that Franks offense, and also invited present offense and thus committed prosecutor implied punish Franks for what charge. of the 2010 We cannot have confidence acquittal erroneous impartial a fair and under these circumstances that Franks received actions, the have light prosecutor’s trial. In ofthe District Court should Havens, motion for a new trial. granted Franks’s conclusion, with the except my disagreement In I Opinion, and 22 the otherwise aforementioned statements ¶¶ *14 join reversing remanding for a new trial. the Court’s decision evidence, beyond prosecutor’s improper uncharged use of misconduct on Franks’s motions rulings authorized the District Court’s use limine, I specially a fair trial. concur. impartial deified Franks joins Special JUSTICE RICE Concurrence JUSTICE McKinnon.