State of Mont. v. KNOWLES

• Citation: 239 P.3d 129,357 Mont. 272,2010 MT 186
• Decision Date: 24 August 2010
• Docket Number: No. DA 09-0558.,DA 09-0558.
• Parties: STATE of Montana, Plaintiff and Appellee, v. Frank Joachim KNOWLES, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

357 Mont. 272

239 P.3d 129

2010 MT 186

STATE of Montana, Plaintiff and Appellee,

v.Frank Joachim KNOWLES, Defendant and Appellant.

No. DA 09-0558.

Supreme Court of Montana.

Submitted on Briefs June 30, 2010.

Decided Aug. 24, 2010.

COPYRIGHT MATERIAL OMITTED.

For Appellant: Chad M. Wright, Hooks & Wright, P.C., Helena, Montana.

For Appellee: Steve Bullock, Montana Attorney General, Tammy K. Plubell, Assistant Attorney General, Leo Gallagher, Lewis and Clark County Attorney, Tara A. Harris, Deputy County Attorney, Helena, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Frank Joachim Knowles (Knowles) appeals his conviction for felony assault with a weapon in the First Judicial District Court. We reverse Knowles' conviction and remand this matter for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 In September 2004, Knowles and his wife Cindy adopted a boy now named C.F. In September 2006, they adopted another boy, B.K. B.K. is currently fifteen and C.F. is eleven.

¶ 3 In April 2008, Frank, Cindy and the boys were residing in Lincoln, Montana. On April 29, 2008, C.F. showed up at school with injuries to his face. At the time, Knowles was out of town in Pennsylvania on a business trip. The school principal, Jilyn Oliveria (Jilyn), reported the abuse and took photographs of C.F.'s face. Department of Public Health and Human Services (DPHHS) social worker Jim Abrahamson (Abrahamson) drove to Lincoln in order to interview C.F. By the time Abrahamson arrived at the school, class had been dismissed for the day and the boys had gone home. Based on the photographs taken by Jilyn, Abrahamson thought that C.F. had been slapped on the left side of his face hard enough to leave a handprint. Abrahamson went to the boys' home to talk with C.F. and investigate the matter.

¶ 4 Abrahamson subsequently observed the injuries to C.F.'s face. C.F. told Abrahamson that Cindy had slapped him several times on the face because he was talking with food in his mouth. C.F. stated that he fell on the floor, and Cindy got on top of him and continued to slap him. After interviewing C.F., Abrahamson concluded it was necessary to remove both C.F. and B.K. from Cindy's care. At the time, B.K. did not report any injuries to Abrahamson and did not have any noticeable physical injuries. Abrahamson placed the children with Jilyn, since there were no other readily-available placements in Lincoln. On April 30, Abrahamson spoke with Knowles by telephone to let him know that he had removed the boys from Cindy's care and why he had done so.

¶ 5 Later that same day, Abrahamson took the boys to be examined by Dr. Thomas Strizich (Dr. Strizich), a Helena pediatrician. B.K. was twelve years old at the time and of below average height and weight. Dr. Strizich examined B.K. and discovered a series of bruises on the back of his right thigh and hip area. The area of bruising measured approximately fifteen centimeters. Dr. Strizich photographed the injuries.

¶ 6 B.K. subsequently told Dr. Strizich and Abrahamson that Knowles struck him with a belt about fifteen to twenty times around the time that Knowles left on his business trip. As he later testified, Dr. Strizich believed that the bruising he observed was consistent with being struck with a belt. After the medical appointment, Abrahamson contacted Knowles by telephone and asked him whether there had been an incident between him and B.K. before he left on his trip. In recounting their conversation at trial, Abrahamson told the jury that Knowles did not tell him of any incidents. Abrahamson told Knowles about the bruising on the back of B.K.'s thigh. When Knowles returned from his business trip several days later, he met with Abrahamson again. During this conversation, Abrahamson claimed that Knowles admitted to spanking B.K. with a belt prior to leaving on his business trip.

¶ 7 Knowles and Cindy were subsequently charged with assault on a minor, in violation of § 45-5-212, MCA. Their trials were separated. Prior to trial, the State filed written notice of its intent to introduce against Knowles evidence of prior bad acts pursuant to the criteria of the Modified Just Rule as set forth in State v. Matt, 249 Mont. 136, 814 P.2d 52 (1991). These criteria are as follows:

(1) The other crimes, wrongs or acts must be similar.

(2) The other crimes, wrongs or acts must not be remote in time.

(3) The evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(4) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

State v. Aakre, 2002 MT 101, ¶ 9, 309 Mont. 403, 46 P.3d 648.

¶ 8 Specifically, the State sought to introduce evidence of Knowles' participation in hitting his children with a belt, not allowing his children to leave their room, slapping the children, and other acts against the boys. The State also sought to introduce evidence that Cindy had been charged with assault of a minor, as well as evidence of C.F.'s injuries. The District Court allowed the State to present this evidence at trial. Cindy was convicted on November 18, 2008, and received a three-year sentence with the Department of Corrections. Knowles' trial was held on December 2, 2008. The jury was unable to reach a verdict, and the District Court declared a mistrial.

¶ 9 After the mistrial, the State offered Knowles an open plea offer for the assault on a minor charge. The State informed Knowles that if he did not accept this deal, it would amend the charge to felony assault with a weapon. Felony assault with a weapon in violation of § 45-5-213(1)(a), MCA, carries a maximum term of imprisonment of twenty years, while felony assault on a minor carries a maximum term of only five years. Knowles rejected the plea deal and exercised his right to go to trial a second time.

¶ 10 An amended information was filed on December 22, 2008. As promised, the State charged Knowles with felony assault with a weapon. The State alleged that Knowles purposefully or knowingly caused bodily injury to B.K. with a weapon by hitting him multiple times with a belt in April 2008. In April 2009, the State again filed written notice of its intent to introduce evidence of prior bad acts. Knowles opposed the introduction of this evidence. He argued that because the assault with a weapon charge was limited to his use of a belt against B.K. (as opposed to the previous general assault charge), the bad act evidence previously admitted was no longer admissible. The District Court, relying on State v. Murray, 228 Mont. 125, 741 P.2d 759 (1987), held that while the first of the Modified Just Rule criteria (i.e., similarity of the prior acts) may not be clearly met in an excessive discipline case, the other three criteria were met so as to allow the admission of evidence of other acts of excessive discipline. Accordingly, the District Court ruled that it would allow other evidence of Knowles' actual physical or threatened abuse of B.K. and C.F.; however, it limited evidence of Cindy's conduct to the initial slapping of C.F. which led to the charges against Knowles.

¶ 11 Prior to trial, Knowles sought to compel discovery of the evaluation, counseling and written records of Abrahamson, and the files of a private evaluator, Wendy Bazinet, as well as the records maintained by the Child and Family Services Division (CFSD) of DPHHS. Knowles argued that because the counseling and investigations were initiated by the State and were important in the previous trial, no claim of privilege to withhold those documents existed. Although Knowles had been given a typed summary report prepared by Abrahamson, he argued that this was insufficient to aid in his defense. The District Court denied the motion after an in camera review of the CFSD material. The District Court found that none of the documents in the CFSD file were relevant to the charges and that there were no “smoking guns” which would provide any additional insight into the case or would otherwise be discoverable under § 41-3-204(2), MCA.

¶ 12 A jury trial was held from June 15-17, 2009. B.K., C.F., Abrahamson, Knowles, Dr. Strizich, Jilyn, defense expert Dr. Thomas Bennett, and others testified at trial. During Jilyn's testimony, the District Court admitted a photograph of C.F.'s facial injuries over Knowles' objection. The District Court gave a cautionary instruction regarding the limited purposes of other bad act evidence at that time. Jilyn testified about Cindy's conduct towards the boys, the injuries she had witnessed on C.F., and that Cindy had attempted to intimidate the boys when they were giving statements to Abrahamson. B.K. and C.F. both testified about the punishments Knowles would administer to them. B.K. testified that Knowles would have him lie face down on a bed with his pants pulled down, and that Knowles would strike him with a belt on the bare skin as a form of punishment. B.K. testified that he would receive multiple hits with the belt. B.K. testified that Knowles caused the bruising to his thigh area when he hit him with a belt prior to leaving on his business trip. However, B.K. also testified that Knowles would fold the belt in half when administering this punishment, and never hit him with a belt buckle.

¶ 13 Abrahamson testified about his investigation and the telephone conversation he had with Knowles on April 30. Abrahamson told the jury that Knowles denied there had been any incident between him and B.K. before he left on his business trip, and that Knowles did not acknowledge...