Lead Opinion
delivered the Opinion of the Court.
¶1 Jason Dean Franks appeals from his conviction of felony sexual intercourse without consent in the Eleventh Judicial District Court, Flathead County. We reverse and remand for a new trial.
¶2 On appeal, we address whether the District Court abused its discretion when it denied Franks’s motion for a new trial.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 On December 28, 2010, fifteen-year-old C.L. told her father that his former roommate, Jason Franks, had raped her when she" was eleven years old. The next day, C.L. and her father went to the Kalispell Police Department to report the allegation. During a forensic interview on January 11,2011, C.L. told Detective Michelle O’Neil that she decided to come forward after four years because of a newspaper article reporting Franks had been accused of molesting a five-year-old boy. The article, published December 3, 2010, was accompanied by a photograph of Franks, which C.L. recognized. C.L. told Detective O’Neil she wanted to help in that case if she could.
¶4 On May 16, 2011, Franks was charged with sexual intercourse without consent and sexual assault. Before tried, Franks moved to
¶5 After multiple continuances, trial began November 5,2012. The prosecutor made the following reference to the newspaper article during his opening statement:
You’ll hear from [C.L.], who will state that the reason that she disclosed, finally and fully came forth, was because Jason Franks was in the newspaper. There was an article, and he was accused of raping a little boy, age four or five. And [C.L.] saw the newspaper article, which had a picture of Jason Franks, and it brought everything back home. She recognized him, down to the scar on his face, and suddenly she thought, “I’ve got to come forward to see if I can have an impact in that case.”
¶6 C.L. testified that before seeing the newspaper article, she had disclosed the incident to her best friend, D.B.; another close friend, A.A.; her boyfriend, R.A.; and D.B.’s father. She testified that after a discussion with D.B.’s father, she started to think about telling her own father. C.L. was asked whether a newspaper article also helped her come forward. She responded, “I wouldn’t say it helped me come forward. It gave me a bigger visual of everything, that I wasn’t the only one.” C.L. testified she could not remember whether she saw the newspaper article before talking to her dad, but “it was close in the time frame.” She later testified she told Detective O’Neil that after seeing the newspaper article, “I knew that there was... another person that had had the same thing done to them that was done to me....” She testified she told Detective O’Neil she wanted to help in that case. Detective O’Neil also testified that C.L. brought up the newspaper article during the forensic interview, and said her reason for coming forward at that time was to help in that case.
¶8 Prior to closing argument, the jury was instructed that evidence about the newspaper article was admitted only to show why C.L. decided to disclose the incident, and could not be used for any other purpose. During closing argument, the prosecutor stated:
Boy, is [C.L.] lucky that a guy named Jason Franks, who happened to be her dad’s roommate, is in the paper, accused of molesting a little boy. What are the odds?
What are the odds that the fall guy that she just happened to list, named Jason, my dad’s roommate, shows up in the paper? Is he an easy target because of the paper, or is he the target because he did this?
¶9 Franks was convicted of both sexual intercourse without consent gmd sexual assault. He moved for a new trial and acquittal. He claimed the testimony at trial failed to bear out the prosecution’s theory that the newspaper article had prompted C.L.’s disclosure, because her testimony revealed she had already told friends about the incident before seeing the newspaper article. He claimed the unfair prejudice caused by testimony about the newspaper article far outweighed its probative value. He also argued that the conviction was not supported by sufficient evidence, and that his conviction of both sexual intercourse without consent and sexual assault violated due process and subjected him to double jeopardy.
¶10 By stipulation, the District Court vacated the sexual assault conviction. The District Court denied the motion with respect to the remaining issues. The District Court reasoned that despite some conflicts in the testimony, there was evidence showing the newspaper article motivated C.L’s disclosure. The District Court also said the jury instruction and evidence of Franks’s acquittal on the prior charges served to counteract any possible prejudice. The District Court stated that testimony about the newspaper article did not deny Franks a fair and impartial trial. The District Court also concluded there was sufficient evidence supporting the conviction. Franks was sentenced to fifty years in the Montana State Prison, with ten years suspended.
¶11 A district court’s denial of a motion for a new trial is reviewed for abuse of discretion. State v. Brummer,
DISCUSSION
¶12 Whether the District Court abused its discretion when it denied Franks’s motion for a new trial.
¶13 Following a verdict of guilty, a district court may order a new trial “if required in the interest of justice.” Section 46-16-702, MCA. The court may order a new trial either on motion of the defendant or of its own accord, pursuant to its inherent powers. Brummer, ¶ 35. Franks moved for a new trial on the grounds that evidence of prior charges of child molestation should have been excluded under M. R. Evid. 404(b) and was more prejudicial than probative under M. R. Evid. 403. He claimed these errors denied him the right to a fair and impartial trial. ¶14 As a general rule, character evidence is not admissible to prove conduct. M. R. Evid. 404; State v. Dist. Ct. of the Eighteenth Judicial Dist.,
¶15 Even if evidence of other crimes, wrongs, or acts is offered for a valid non-propensity purpose, M. R. Evid. 404(b) may require its exclusion if “the nature of the evidence might tempt the jury to decide
¶16 Unfair prejudice may arise from evidence that arouses the jury’s hostility or sympathy for one side, confuses or misleads the trier of fact, or unduly distracts the jury from the main issues. State v. Bieber,
¶17 In its ruling on Franks’s motion in limine, the District Court found testimony about the newspaper article relevant because it explained C.L.’s reason for disclosing the incident after four years. The evidence would be offered for a purpose other than to show Franks’s character, and thus M. R. Evid. 404(b) did not require its exclusion. The “highly inflammatory” nature of child molestation evidence, however, required the District Court and the State to tread with caution. State v. Van Kirk,
¶18 As the District Court noted in its ruling on Franks’s motion for a new trial, the testimony regarding the timing of and reasons for C.L.’s disclosure was, in some respects, contradictory. Nevertheless, there was testimony supporting the State’s theory of admissibility. C.L. testified that she told Detective O’Neil she wanted to help in the prosecution of the case reported in the newspaper. Detective O’Neil testified that C.L. said, during the forensic interview, that the other case was her reason for coming forward. Testimony also established
¶19 It is apparent, however, that the State did not limit its use of the testimony to explaining the timing of C.L.’s disclosure. In his opening statement, the prosecutor stated Franks was “accused of raping a little boy.” After Franks testified he had been acquitted of those charges, the prosecutor asked if he heard his attorney state “that not guilty doesn’t mean innocent.” This question implied to the jury that, rather than being innocent until proven guilty, Franks was a serial child molester who had simply gotten away with it. The prosecutor later commented on “the odds” of Franks showing up in the newspaper, “accused of molesting a little boy.” This comment strengthened the implication that Franks was a child molester and therefore more likely to have assaulted C.L.
¶20 The State’s use of the evidence aroused the jury’s hostility toward Franks, resulting in unfair prejudice. See Bieber, ¶ 59. The District Court’s instruction to the jury that they were not to consider testimony about the newspaper article for any purpose other than to explain C.L.’s disclosure was not sufficient to protect the defendant from undue prejudice in the face of the State’s repeated insinuations. See Sage, ¶ 42. Similarly, the value of allowing Franks to testify that he was acquitted of the prior charges was negated by the State’s cross-examination, which showed frank disregard for the right of a criminal defendant to be presumed innocent until proven guilty. Section 46-16-204, MCA.
¶21 Based on the information and arguments presented to the District Court at the motion in limine stage, and given the overwhelmingly prejudicial nature of child molestation evidence, the wiser course would have been to withhold ruling on its admissibility. The issue could have been revisited in the event that the delayed disclosure became an issue for C.L.’s credibility.
¶22 When ruling on Franks’s motion for a new trial, however, the District Court had the full benefit of hindsight, and knew exactly the manner in which the State had manipulated the District Court’s attempted safeguards and used the evidence to create the impression that Franks was a habitual abuser of children. Clearly, the probative value of this evidence was outweighed by the danger of unfair prejudice and should have been excluded under M. R. Evid. 403. See Pendergrass,
¶23 Because we have already determined Franks’s conviction must be reversed, we need not address the remaining issues raised in his appeal.
Concurrence Opinion
specially concurring.
¶25 Although I concur in the Court’s decision, I do not agree with all that is said in our Opinion. The Court decides this case, and reverses Franks’s conviction, based on the District Court’s post-trial ruling denying Franks’s motion for a new trial. In so doing, however, the Court offers several statements relating to the District Court’s pretrial rulings on Franks’s motions in limine. I believe these statements are inconsistent with the Court’s ultimate disposition of the case and that they consequently undermine the Court’s analysis. I am thus compelled to note my disagreement with them.
¶26 First, the Court opines that “the wiser course” would have been for the District Court “to withhold ruling” on the admissibility of the newspaper article. Opinion, ¶ 21.1 disagree. “A motion in limine is a request for guidance by the court regarding an evidentiary question, which the court may provide at its discretion to aid the parties in formulating trial strategy.” Hunt v. K-Mart Corp.,
¶27 A similar process unfolded in the present case. Franks sought through a motion in limine to prohibit the State from introducing evidence of the 2010 newspaper article reporting that he had been charged with molesting a five-year-old boy in DC 10-444(B). When that motion was unsuccessful, Franks made the tactical choice to confront the evidence directly. Franks and the prosecution were entitled to a ruling on his motion in limine so that they could formulate their respective trial strategies. Indeed, both Franks and the prosecution addressed the newspaper article in their respective opening statements, offering differing views of what the article would
¶28 We have repeatedly approved, and even encouraged, the use of motions in limine, recognizing that such motions serve “valid and useful” purposes and even have “special advantages” in the trial process. State v. Ingraham,
¶29 Second, the Court states that the issue of allowing testimony about the article “could have been revisited in the event that the delayed disclosure became an issue for C.L.’s credibility.” Opinion, ¶ 21. The implications of this statement are that the delayed disclosure was not already an issue for C.L.’s credibility and that the defense first had to challenge C.L.’s credibility based on the timing of her disclosure before the prosecution could present any testimony about the article. I disagree on both counts.
¶30 “Relevant evidence” is defined in M. R. Evid. 401 and includes “evidence bearing upon the credibility of a witness.” Thus, since evidence of the delayed disclosure bore upon C.L.’s credibility, the evidence was relevant from the outset and its admission was not dependent on an impeachment theory of admissibility as the Court suggests. This was a “he said/she said” case. Franks had denied C.L.’s accusations, and the State’s proof hinged largely on whether the jury believed C.L. C.L., however, had waited four years to report Franks’s alleged sexual misconduct. In evaluating C.L.’s testimony, the jurors naturally would wonder why she had delayed so long in disclosing the incident. Consequently, the delay in her disclosure was necessarily at
¶31 Additionally, the prosecution’s need for narrative integrity is a second reason why testimony about the article was potentially admissible at the outset. The circumstances surrounding C.L.’s disclosure — including the article — were an integral part of the story the prosecution sought to present to the jury. Indeed, as noted, jurors naturally would wonder about the four-year delay between the alleged offense and C.L.’s disclosure of it. Franks was not entitled to tie the prosecution’s hands and force the prosecution to omit significant pieces of C.L.’s stoxy simply by deciding in advance not to make an issue of the delayed disclosure at trial. “[A] criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it.” Old Chief v. United States,
¶32 Here, failing to explain the delay in C.L.’s disclosure — even if the defense had not yet made an issue of it — would have left a conspicuous hole in C.L.’s story and the prosecution’s evidence, thus frustrating “the jurors’ expectations about what proper proof should be.” Old Chief,
¶33 This leads to my final point. In discussing the District Court’s ruling on Franks’s motion for a new trial, the Court observes that “the District Court had the full benefit of hindsight, and knew exactly the manner in which the State had manipulated the District Court’s attempted safeguards and used the [article] to create the impression that Franks was a habitual abuser of children.” Opinion, ¶ 22. The Court then opines that “the probative value of this evidence was outweighed by the danger of unfair prejudice and should have been excluded under M. R. Evid. 403.” Opinion, ¶ 22. The Court cites Havens v. State,
¶34 Havens illustrates this point. The case involved a lawsuit against the State for failing to install a stoplight at a busy intersection where Havens was injured. Havens filed a motion in limine to exclude evidence of his alcohol consumption on the date of the accident, arguing that this evidence was irrelevant. The State responded that it would produce testimony linking Havens’s alcohol consumption as a contributory factor in the accident. On this basis, the district court denied Havens’s motion. Despite the State’s assurance, however, no evidence was produced at trial establishing a connection between Havens’s alcohol consumption and the cause of the accident. Thus, Havens moved for a new trial, which was denied. Havens,
¶35 On appeal, we reversed and remanded for a new trial. We held that the district court “did not err when it initially denied Havens’ motion in limine based upon the State’s assurance that the testimony to be presented at trial would link Havens’ alcohol consumption to the question of causation.” Havens,
[A]fter the verdict, when Havens renewed his contention in the context of a motion for a new trial, the court should have reconsidered its prior ruling in light of the State’s failure to fulfill its promise to elicit testimony establishing Havens’ alcohol consumption as a factor in causing the collision. Havens persistently contended before, during and after the trial that the evidence was not relevant and that it would and did cause prejudice materially affecting his right to a fair trial.
Havens,
¶36 The same principle applies here. In advance of trial, the prosecution gave notice that it intended to introduce evidence of four prior bad acts by Franks: testimony about a 1989 sexual offense involving a 17-year-old girl; testimony about a 1992 sexual offense
¶37 The District Court agreed with Franks as to the 1989 and 1992 incidents, concluding that the State had “failed to identify a theory of logical relevance which would permit admission of the evidence.” The court observed that the State essentially was “seeking to prove that Defendant has the character for being sexually interested in young girls and that he acted in conformity with that character regarding C.L.,” which “is the sort of impermissible propensity inference not allowed pursuant to Rule 404(b).” With respect to the 2010 article, however, the District Court concluded that the State’s theory was valid and that any prejudice to Franks could be mitigated:
The evidence regarding the 2010 newspaper article is not offered to prove that Franks has the character to engage in sexual assault and for the jury to infer that he acted in conformance with that character by assaulting C.L. Why and when C.L. disclosed are issues in this case and the evidence is probative of C.L.’s motive in disclosing and should be admitted. As for any unfair prejudicial effect, Defendant can offer into evidence the fact that he was acquitted of the charges.
¶38 A trial court has broad discretion in determining the relevance and admissibility of evidence. State v. Derbyshire,
¶39 In his opening statement, the prosecutor told the jury: “You’ll hear from [C.L.], who will state that the reason that she disclosed, finally and fully came forth, was because Jason Franks was in the newspaper.” The prosecutor then indicated that “[Franks] was accused of raping a little boy, age four or five.” As the State concedes on appeal,
¶40 During trial, Franks took the stand and denied C.L.’s allegations of misconduct. On cross-examination, the prosecutor referenced Franks’s picture in the newspaper and inquired whether his appearance in the December 2010 picture was the same as how he looked in late 2006 and early 2007 (the period of the alleged offenses against C.L.). As a result, on redirect examination, Franks explained that his picture had been in the paper because he had been charged with a sexual offense involving his girlfriend’s son. He testified that he was tried for that offense and the jury had found him not guilty. On recross-examination, the prosecutor attempted to impeach this testimony by pointing out to Franks that “not guilty doesn’t mean innocent” — the obvious innuendo being that Franks sexually assaulted his girlfriend’s five-year-old son and got away with it. This insinuation was improper on several grounds.
¶41 First, in weighing probative value against the danger of unfair prejudice, the District Court reasoned that Franks could introduce the fact of his acquittal to mitigate any prejudice resulting from testimony about the article. This was integral to the District Court’s Rule 403 balancing. In conveying to the jury that Franks’s acquittal “doesn’t mean [he’s] innocent,” the prosecutor undercut the very safeguard that the District Court had put in place when it ruled that the State could present testimony about the article.
¶42 Second, whether Franks actually committed the sexual offense referenced in the article was not something the jury needed to decide, or even consider. In other cases, where the jury is being asked to infer a person’s knowledge, motive, intent, etc. based on the person’s
¶43 Third, and perhaps most importantly, the prosecutor’s remark invited the jury to hold Franks accountable for an offense of which he had already been tried and acquitted. One of the protections guaranteed by the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article II, Section 25 of the Montana Constitution is the protection against a separate prosecution for the same offense after acquittal. Ashe v. Swenson,
¶44 Some courts have held that evidence of a prior offense is not admissible if the defendant has been acquitted of that offense. See Mundon,
¶45 Accordingly, for all of these reasons, the prosecutor’s insinuation that Franks had in fact committed the 2010 offense, despite his acquittal of that charge, was improper.
¶46 Lastly, in closing argument, the prosecutor suggested that the jury should believe C.L. since she had implicated the same man who was accused of molesting another child:
So what we have here is this young girl who, from the first time she discloses [to her friends], indicates "it was my father’s roommate,” and that continues. Then, before the newspaper article comes out, she tells her then-boyfriend it’s a guy named Jason, that’s all he knew. Then she continues, and finally the newspaper comes out and, man, is she lucky. Boy, is she lucky that a guy named Jason Franks, who happened to be her dad’s roommate, is in the paper, accused of molesting a little boy. What are the odds?
What are the odds that the fall guy that she just happened to list, named Jason, my dad’s roommate, shows up in the paper? Is he an easy target because of the paper, or is he the target because he did this?
This argument invited the jury to infer that Franks is a sexual predator who preys on young children, that his acts of sexual aggression are dictated by his character, and that he acted in conformity with that character by sexually assaulting C.L. This is the very inference that Rule 404, our precedents, and the District Court’s rulings all forbid.
¶47 In deciding whether "the interest of justice” required that Franks be granted a new trial, § 46-16-702(1), MCA, the District Court needed to consider the State’s failure to comply with the court’s rulings on Franks’s motions in limine, Havens,
¶48 In conclusion, except for my disagreement with the aforementioned statements at ¶¶ 21 and 22 of the Opinion, I otherwise join the Court’s decision reversing and remanding for a new trial. The prosecutor’s improper use of uncharged misconduct evidence, beyond the use authorized by the District Court’s rulings on Franks’s motions in limine, deified Franks a fair and impartial trial. I specially concur.