State v. McKnight

• Decision Date: 30 December 1991
• Docket Number: No. 90-623,90-623
• Citation: 820 P.2d 1279,250 Mont. 457
• Parties: STATE of Montana, Plaintiff and Respondent, v. Franklin F. McKNIGHT, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1279

820 P.2d 1279

250 Mont. 457

STATE of Montana, Plaintiff and Respondent, v. Franklin F. McKNIGHT, Defendant and Appellant.

No. 90-623.

Supreme Court of Montana.

Submitted on Briefs July 25, 1991.

Decided Nov. 14, 1991.

Rehearing Denied Dec. 30, 1991.

J. Dirk Beccari, Missoula, for defendant and appellant.

Marc Racicot, Atty. Gen., Elizabeth L. Griffing, Asst. Helena, M. Shaun Donovan, County Atty., Superior, for plaintiff and respondent.

WEBER, Justice.

Defendant was found guilty of sexual intercourse without consent after a jury trial in the District Court for the Fourth Judicial District, Mineral County. Defendant appeals. We affirm.

The issues for our consideration are:

1. Did the District Court abuse its discretion by allowing evidence of prior sexual assaults?

2. Did the District Court err by denying defendant's motion for mistrial?

On December 20, 1989, Franklin "Nick" McKnight, defendant, was charged with three counts of sexual intercourse without consent, two perpetrated against S.W. in 1981 and one against K.O. in 1984; and three counts of sexual assault, two perpetrated against S.W. in 1981 and one against S.B. in 1981. On February 6, 1990, the information was amended to include a count of sexual assault perpetrated against L.W. in 1981.

At the omnibus hearing, defendant moved to dismiss the charges as being barred by the statute of limitations. The State responded and concurred with defendant's motion. All charges except for the count of sexual intercourse without consent against K.O. in 1984 were dismissed as barred by the statute of limitations.

The State filed a Just notice of intent to introduce evidence of the charges dismissed as barred by the statute of limitations, citing State v. Tecca (1986), 220 Mont. 168, 714 P.2d 136, as authority. It sought to introduce the evidence "for the purpose of supporting the State's proof on the issue of defendant's intent and state of mind and consistent with the proposition that the defendant's acts were consistent with a common scheme, plan or system, as permitted by Rule 404(b)".

Defendant maintained that the admission of testimony of the alleged victims of the dismissed charges would prejudice the defendant since they were untried, unproven allegations. He also argued that the other evidence was too remote in time to satisfy the Just Rule.

After a hearing, the District Court allowed the State to introduce evidence of the other acts under the Just Rule. The dismissed counts of sexual intercourse without consent were not introduced at trial.

Defendant is the great-uncle of K.O. In 1984, nine-year-old K.O. was visiting Montana with her family. Defendant's step-granddaughter, S.B., was one of K.O.'s friends. One day in the summer of 1984, S.B. and K.O. were playing in the area of defendant's house because S.B.'s father was staying in a trailer parked on the defendant's property. While the girls had planned on spending the night together, S.B.'s father picked her up and K.O. was left at defendant's house. K.O. testified that on that evening while she was lying on the couch in the defendant's living room and after Mrs. McKnight had gone to bed, defendant sat down on the couch next to K.O. She testified he put his hand under her shirt, and rubbed her chest. She testified he then started rubbing her genital area, and "actually put his fingers inside me." When K.O. asked him what he was doing defendant told her that he was giving her a massage and not to tell anyone.

After this incident, K.O. began having severe stomach aches. She became withdrawn, especially from older men, and was afraid to go places alone or to be left alone. She testified she did not want to be near defendant. She also testified she did not trust people anymore. When K.O.'s family moved from California to Montana in 1988, defendant came to California to help them move and K.O. refused to ride alone with him.

Lindsay Clodfelter, a mental health therapist, and member of the Montana Sex Offender Treatment Association, testified that child victims often will tell of earlier experiences involving sexual abuse only when they become adolescents. She testified that "most children don't tell right away because by keeping it a secret, they protect themselves and they protect their family. The closer the kid is to the offender, the less likely the kid is to report." If they tell once they emerge into adolescence it is because "that's a time when they are--they're branching out further and further from their family." She testified that she interviewed K.O. and then gave her expert opinion that K.O. had been sexually assaulted by someone.

S.B. testified that in the summer of 1981 she and a friend, S.W., were playing around defendant's house. Both girls were eight years old in 1981. Defendant asked them if they wanted to see his old car. When they went into the garage, defendant picked up S.B. and set her on a ledge. He rubbed S.B. on her chest and genital area. He then assaulted S.W., putting his hands in her shirt and down her pants. S.W. also stated that "he stuck his hand inside of me and moved it around". S.B. testified she saw the assault on S.W. She then walked around behind the vehicle so that she would not have to watch "the rest of it". S.B. testified defendant threatened to kill them if they told anyone what had happened. A similar assault happened to S.B. again that summer, while she was sitting on defendant's couch under a blanket. S.B. testified defendant sat down beside her on the couch, covered them both with the blanket, stuck his hand under her shirt, and rubbed her chest and back. She further testified that defendant said "nobody would believe me if I told, and he'd kill me".

S.W.'s twin sister, L.W., testified that she was molested by defendant in 1981 when she was eight years old. She had been playing with S.B. in the trailer on defendant's property. L.W. testified that after S.B. left to go get something, defendant threw L.W. on the mattress, grabbed her chest and then stuck his hand down her pants. She asked him what he was doing and defendant said that he was just playing with her. L.W. became mad, kicked him in the groin, and ran from the trailer. He threatened to kill L.W. if she told anyone. L.W. further testified that defendant said if she ever told "he would make it look like we wanted it".

After a jury trial, defendant, 76 years old at the time, was found guilty of sexual intercourse without consent and sentenced to 20 years in the Montana State Prison with 10 years suspended. The District Court further ordered that defendant would not be eligible for parole until he successfully completed the sex offender treatment program at the prison. Defendant appeals.

I

Did the District Court abuse its discretion by allowing evidence of prior sexual assaults?

Defendant maintains the District Court erred in allowing S.B., L.W. and S.W. to testify about unproven allegations of sexual acts committed by defendant against them because the evidence did not meet the standards of Rule 404(b), M.R.Evid., and State v. Just (1979), 184 Mont. 262, 602 P.2d 957. Defendant maintains that the "other acts" were not sufficiently similar to the charged offense because the other acts were alleged sexual assaults while the crime defendant was convicted of here was sexual intercourse without consent. Defendant also argues that the other acts were too remote in time to be admissible as evidence, and that they did not tend to show common scheme, plan system or motive. The State maintains the evidence met the Just test and was properly admitted into evidence.

Recently, in 1991 this Court adopted the Modified Just Rule in State v. Matt (Mont.1991), 814 P.2d 52, 48 St.Rep. 614.

The Modified Just Rule sets forth the basis for the admission of evidence of other crimes, wrongs or acts:

(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. Matt, 814 P.2d at 56, 48 St.Rep. at 616. The Matt Court also applied the procedural protections as part of the Modified Just Rule. Those procedural protections are:

(1) Evidence of other crimes, wrongs or acts may not be received unless there has been written notice to the defendant that such evidence is to be introduced. The notice to the defendant shall specify the evidence of other crimes, wrongs or acts to be admitted, and the specific Rule 404(b) purpose or purposes for which it is to be admitted.

(2) At the time of the introduction of such evidence, the trial court shall explain to the jury the purpose of such evidence and shall admonish it to weigh the evidence only for such purposes.

(3) In its final charge, the court shall instruct the jury in unequivocal terms that such evidence was received only for the limited purposes earlier stated and that the defendant is not being tried and may not be convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment.

State v. Matt, 814 P.2d at 56, 48 St.Rep. at 616.

Similarity of Other Crimes, Wrongs or Acts

Defendant maintains that evidence of unproven sexual assaults perpetrated against other victims than the victim of the crime charged is inadmissible. His argument is twofold. First, he maintains that the victims are not the same and neither is...