NO. 90-623 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

STATE OF MONTANA, Plaintiff and Respondent, -vs

### - FRANKLIN F

# . McKNIGHT, Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Mineral, The Honorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD: For Appellant: J. Dirk Beccari, Missoula, Montana For Respondent: Hon. Marc Racicot, Attorney General; Elizabeth L. Griffing,Assistant, Helena, Montana M. ShaunDonovan,CountyAttorney, Superior,Montana

Filed: Submitted on ~riefs:July 25, 1991 Decided: November 14, 1991Justice Fred J. Weber delivered the Opinion of the Court.

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 discretionby allowing evidence of prior sexual assaults? 2. Did the DistrictCourt err by denying defendant's motion formistrial? On December 20, 1989,Franklin I1Nickn McKnight,defendant,was charged with three counts of sexual intercourse without consent, twoperpetrated against S.W. in 1981 and one against K.O. in 1984; and three countsof sexualassault,twoperpetrated 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,defendantmoved todismissthe charges

asbeing barred by the statuteof limitations. The Stateresponded 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 soughtto introducethe evidence Itforthepurpose of supporting the State's proof on the issue of defendant's intent and 2state 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) #I. 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 stepgranddaughter, 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 thedefendant's property. While the girlshad planned on spending the night together, S.B.'s father picked her up and K.O.

was left atdefendant's house. K.O. testified that on that evening while shewas lying on the couch in thedefendant'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 llactually put his fingers insideme.!! When K.O. asked him what he was doing defendant told her that he was givingher a massage and not to tell anyone. After this incident, K.O. began having severe stomach aches. Shebecame withdrawn, especially from oldermen, 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.0.l~family moved from ~aliforniato Montana in 1988,defendant came to ~alifornia tohelp 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 ~ssociation,testified that child victims often will tell of earlier experiences involving sexual abuse onlywhen they become adolescents. She testified that "most children don't tell right away because by keeping it a secret,they protect themselvesand theyprotect 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 Ifthat'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., wereplaying 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 anddown herpants. S.W;also stated that "he stuckhishand 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 itv1. 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 llnobody 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 hewas 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 tokill L.W. if shetold anyone. L.W. further testified that defendant said if she ever told "hewould 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 consentand sentenced to 20years in theMontana State Prison with 10 years suspended. The District Court further ordered thatdefendantwould notbe eligible for parole until he successfully completed the sex offendertreatment program at the prison. Defendant appeals. I Did the District Court abuse its discretion by allowing evidence of prior sexual assaults? Defendant maintainstheDistrictCourterred 

### inallowingS.B., L.W. and S.W. to testify aboutunproven allegationsof 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. Defendantalso argues that the other actswere too remote in time tobe admissible as evidence, and that they did not tend to showcommon scheme,plan system ormotive. The State maintains the evidence met theJusttestandwasproperly admitted into evidence. Recently, in 1991thisCourt adopted theModified JustRule in State

### v. Matt (Mont. 1991), P.2d 

### , 48 St.Rep.614. TheModified JustRule sets forth the basis for the admission of evidence other crimes,wrongs 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 admissibletoprove the character of aperson in order to show thathe 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 outweighedby thedanger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Statev. Matt, 48 St.Rep. at 616. TheMatt Court also applied the procedural protections as part of the Modified Just Rule. Those procedural protections are: (1) Evidence of other crimes,wrongs or actsmay 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 orpurposes forwhich it is to be admitted. (2) At the time of the introduction of such evidence, the trial court shall explain to the jury thepurpose 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 inunequivocal terms that suchevidencewas received only forthe limited purposes earlier statedand that the defendant isnotbeing 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. Statev. Matt, 48 Sk.Rep. at 616. Similarity of Other Crimes,Wronss 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 their relationship to the defendant, so therefore, the similarity requirement is notmet. Secondly, he maintains that the crimes of sexual assault and sexual intercourse without consent are not suff'iciently similar.The Statemaintains the other evidence issufficiently similar because the charged offense and each one of the other crimes involved sexual contactbetween the defendant and a young girl who

was eight or nine years old; each assault occurred on defendant's property; defendant's actions during each assault and the charged offense were basically the same; and defendant's threats toward each of the girls were essentially the same. As the Statepoints out, defendant's actions toward K.O. were similar to the actions against S.B., L.W. and S.W. In all cases, defendant rubbed thegirlsbreasts and genital area. With S.W. and K.O. defendantwent one step further and inserted his fingers into their vaginas, and thus, the charge of sexual intercourse without consent. The assaults on all girls happened when they were eight

or nine years old; each assault occurred on defendant's property; and defendant threatened all the girls in essentially the sameway. See State v. Tecca, 714 P.2d 136. As stated above, defendant's actions towards S.B., L.W. and S.W., aswell as the charged actions toward K.O. were clearly similar. We conclude that the similarity of the other crimes,'wrongs or acts test has been met. Nearness in Time Defendant contends that the 1981 assaults against S.W., L.W. and S.B. are too remote in time to be admissible since those alleged assaults took place about three years earlier than the crime charged and nothing occurred in the interim. The State maintains that the remoteness question is directed to the discretion of the district court. It argues that here, the threeyear period of time was not so remote as to supersede the discretion of the District Court. Here the assaults on S.W., S.B. and L.W. occurred in 1981; threeyearsprior to the 1984 crime againstK.O. For a comparison of time periods, see Just 602 P.2d at 961 (threeyears); State

### v. Stroud (1984), 210~ont. 58, 71, 683 P.2d 459, 466 (threeand onehalf years); Statev. Eiler (1988), 234Mont. 38, 48, 762 P.2d 210, 216-17 (five years); and Tecca, 220 Mont. 168, 170, 714 P.2d 136, 139 (nineyears). In addition to the three year time span in the present case, we have considered the similarity in conduct when comparing the assaults on S.W., S.B. and L.W. to the assault againstK.O., whichdemonstratesapattern of similar conductwhich may be properly considered on the issue of remoteness. See Tecca, 220Mont. 172, 714 P.2d 139. We concludethe evidence was not too remote in time. Proof of Notice, Opportunity, Intent, Preparation, Plan,

Knowledqe, Identity,or Absence of Mistake or Accident Defendant contends that this element is not satisfiedbecause the alleged crimeswereperpetrated against differentvictims. He further argues thatmere repetition of an act does not constitute a common scheme, plan or system. The State maintains that the actions of thedefendant were sufficiently similarto constitute a

common scheme,plan or system. We note that this element has recently been modified in Matt and that the admission of evidence is not limited only to common scheme, plan or system. The Matt case recognized the inconsistencies in our previous holdings regarding other crimes 9evidence. Inmodifying the Just Rule, the Matt Court explained: While theJustRule was entirely appropriateto the factual situation in that case, it has led to contradictory results. The third element of the Just Rule provides that evidence may be admissible for the purpose of showing a common scheme,plan or system. We agree with that conclusion in that case. However, we emphasizethat Rule 404(b) is not limited only to common scheme, plan or system. Rule 404(b) provides that evidence may be admissible for other purposes, such as proof ofmotive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Clearly Rule 404(b) provides for the admission of evidence formany purposes other than the common scheme, plan or system stated in Just. We point out that the I1commonscheme, plan or system" referred to in Just is listed as I1plant1 under Rule 404(b), according to McCormickonEvidence, 3rd Ed., 5190,pp. 558-564 (1984); 22 C. Wright and K. Graham, Federal Practice and Procedure, Evidence, 

### 5 5244, p. 499 (1978); and 23 CJS Criminal Law 5830 (1989). Matt, 48 St.Rep. at 615. We conclude thatunder theModified Just Rule, the other crimes, wrongs or acts evidence here tended to prove defendant's motive and intent. Probative Value Outweiqhs the Prejudicial Effect Defendant maintains that the other acts evidence introduced amounted to unproven, untried allegations against different victims,and that such evidence was highly prejudicial tohim. The State maintains that the probative value of the prior crimes evidence is established by the satisfaction of the first three elements of the Just Rule. We first point out that theparties agree that theprocedural precautions were taken in this case. Thedefendantreceived proper notice; the trial court admonished the jury at the introductionof the evidence;and the trial court instructed the jury in its final charge on thepurpose of the evidence. Thus the only question thenis whether the probative value of the evidence was outweighed by unfair prejudice. This Court recently addressed this question at length in State v. Paulson, No. 90-163, slip op. (Mont. 1991), citing and adopting 10 JamesWm. Moore,Moore's Federal Practice 5

To guide courts in balancing the I1probativevalue" and the "unfair prejudicel1 of evidence, the Committee states that the latter termmeans evidence which has "an undue tendency to suggestdecision on an improperbasis, commonly, though not necessarily, an emotional one." Application 0.f this thought and the ultimate determination of admissibility are matters left to the discretion of the trial court and will necessarily be decided on a caseby casebasis. However,by restricting the rule to evidence which will cause "unfair prejudice" the draftsmen meant to caution courts that mere prejudicial effect is not a sufficient reason to refuse admission. Probative evidence will frequently be prejudicial to a party, but that does not mean that it will cause the fact finder to sround a decision on an emotional basis. Thus, evidence which tends to horrify, evoke sympathy or increase a desire to punish due to a prior act of a party and whose probative value is sliqht may be properly excluded. (Emphasis supplied.) Paulson, s1ip.o~.at 13. In thepresent case, the testimony of S.W., L.W. and S.B. was clearly prejudicial, but because it meets other aspects of the Modified JustRule, suchprejudice alone isnot a sufficientreason to refuse admission. Paulson, slip op. at 14. The jury was properly instructed and admonished regarding the testimony on the other acts. The evidence presented established without question the similarity in assaults perpetrated against all the victims. Defendant's conductwas similar; the age of the girls at the time the crimes were committed was about the same; all the acts took place on defendant's property; and defendant's threats to all thegirls were similar. We conclude that the probative value of the evidence in question outweighedanyprejudicial effectof admitting it. We conclude that the four elements of the Modified Just Rule have been met. We hold that the ~istrict Court did not abuse its discretion by allowing evidence of prior sexual assaults.

Did the District Court err by denying defendanttsmotion for mistrial? At trial,the last witness to testifywas DawnTerrill, S.W.'s teacher. The Stateprosecutor asked the teacherwhat shehad been told by S.W. and the teacher responded: Q. What exactly did she tell you about the details of the assault against her? A. The first time that I met with [S.W.] she didn't tell me, but the third time she came intomy room to talk tome she told me shehad been sexually assaulted as a child. Q. Did she tell you what exactly happened? A. She told me that everything happened, and I1everythingl1 was her word. The defendantmoved for a mistrial on the basis of Dawn Terrillfs

use of the word lleverythingH. The District Court denied the motion. On appeal, defendant argues itwas error for the District Court not to declare a mistrial. He maintains that the word "everythingI1as used, implied to the jury that the defendant had penis-in-vagina sex. He argues that he was severly prejudiced by that statementbecause the jury would be totally disgustedwith the thought of an old man copulating with a little child. The Stateargues that ffeverythingff has such a vaguemeaning. It argues that the teacher's reference to "everythingff could easily be construed to include exactly what S.W. testified to at trial 

## -- that defendant put hishands inher shirt and downherpants, rubbed her chest and put his finger inside of her. This Court set forth the standard fordeclaring a mistrial in Statev. Clawson (1989),239 Mont. 413, 423, 781 P.2d 267, 273-74. There must be a manifest necessity to declare a mistrial and the defendantmust have been deprived of a fair and impartial trial. State v. Brush (1987), 228 Mont. 247, 741 P.2d 1333, 1336. 44 St.Rep. 1495, 1499. The test fordeclaring amistrial was stated by the United States Supreme Court inUnited Statesv. Perez. 

# .

. . The law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there isamanifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercisea sounddiscretionon the subject 

# . . . The power ought to be used with the greatest caution, under urgent circumstances, and for very plan and obvious causes;

# . . . (Citationsomitted). Considering all the circumstancesandviewing thetrial asawhole,

we conclude that the use of the word lfeverythingu was not prejudicial to defendant. K.O., S.B., L.W. and S.W. had all testified prior to S.W.'s teacher. None of the girls' testimony implied that therewas ever penis-in-vagina sexual contactbetween the defendant and themselves. Therefore, it would be highly unlikely that the jury would take the meaning of the word ffeverythingff asused in the teacher's testimony out of the context of the rest of the testimony they heard throughout the trial. We conclude that the defendantwas not deprived of a fair and impartial trial and there is no manifest necessity to declare 

### amistrial. We hold that the District Court correctly denied defendant's motion for mistrial. Affirmed.Justice William E. Hunt, Sr., dissenting. I dissent from the foregoing opinion for the reasons set forth in my dissent in State 

### v. Matt (Mont. 1991), 814 P.2d 52, 48