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. Shaun Donovan, County Attorney, Superior, Montana 

Filed: 

Submitted on ~riefs: July 25, 1991 

Decided: November 14, 1991 
Justice 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 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 I1Nickn 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 Itfor the purpose of 

supporting the State's proof on the issue of defendant's intent and 

2 
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) #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 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 llactually 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.0.l~ family moved from ~alifornia to 

Montana in 1988, defendant came to ~alifornia 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 ~ssociation, 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 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., 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 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 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), P.2d , 48 St.Rep.614. 

The Modified Just Rule 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 

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, 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, 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 not met. Secondly, he maintains that the crimes of 

sexual assault and sexual intercourse without consent are not 

suff 'iciently similar. 
The State maintains the other evidence is sufficiently similar 

because the charged offense and each one of the other crimes 

involved sexual contact between 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 State points 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 the girls breasts and genital area. With S.W. and 

K.O. defendant went 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 same way. 

See State v. Tecca, 714 P.2d 136. As stated above, defendant's 

actions towards S. B., L.W. and S.W., as well 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 three 
year 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; 

three years prior to the 1984 crime against K.O. For a comparison 

of time periods, see Just 602 P.2d at 961 (three years); State v. 

Stroud (1984), 210 ~ont. 58, 71, 683 P.2d 459, 466 (three and onehalf years); State v. Eiler (1988), 234 Mont. 38, 48, 762 P.2d 210, 

216-17 (five years); and Tecca, 220 Mont. 168, 170, 714 P.2d 136, 

139 (nine years). 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 

against K.O., which demonstrates a pattern of similar conduct which 

may be properly considered on the issue of remoteness. See Tecca, 

220 Mont. 172, 714 P.2d 139. We conclude the 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 satisfied because 

the alleged crimes were perpetrated against different victims. He 

further argues that mere repetition of an act does not constitute 

a common scheme, plan or system. The State maintains that the 

actions of the defendant were sufficiently similar to 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 

9 
evidence. In modifying the Just Rule, the Matt Court explained: 

While the Just Rule was entirely appropriate to 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 

emphasize that 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 of motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident. 

Clearly Rule 404(b) provides for the admission of 

evidence for many purposes other than the common scheme, 

plan or system stated in Just. We point out that the 

I1common scheme, plan or system" referred to in Just is 

listed as I1plant1 under Rule 404(b), according to 

McCormick on Evidence, 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 that under the Modified 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 to him. 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 the parties agree that the procedural 

precautions were taken in this case. The defendant received proper 

notice; the trial court admonished the jury at the introduction of 

the evidence; and the trial court instructed the jury in its final 

charge on the purpose of the evidence. Thus the only question then 
is 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 James Wm. Moore, Moore's Federal Practice 5 

To guide courts in balancing the I1probative value" 

and the "unfair prejudicel1 of evidence, the Committee 

states that the latter term means evidence which has "an 

undue tendency to suggest decision on an improper basis, 

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 case by case basis. 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 the present case, the testimony of S.W., L.W. and S.B. was 

clearly prejudicial, but because it meets other aspects of the 

Modified Just Rule, such prejudice alone is not a sufficient reason 

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 conduct was 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 the 
girls were similar. We conclude that the probative value of the 

evidence in question outweighed any prejudicial effect of 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 defendantts motion for 

mistrial? 

At trial, the last witness to testify was Dawn Terrill, S .W. 's 

teacher. The State prosecutor asked the teacher what she had 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 

into my room to talk to me she told me she had 

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 defendant moved for a mistrial on the basis of Dawn Terrillfs 

use of the word lleverythingH. The District Court denied the 

motion. On appeal, defendant argues it was error for the District 

Court not to declare a mistrial. He maintains that the word 

"everythingI1 as used, implied to the jury that the defendant had 

penis-in-vagina sex. He argues that he was severly prejudiced by 

that statement because the jury would be totally disgusted with the 

thought of an old man copulating with a little child. The State 
argues that ffeverythingff has such a vague meaning. 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 his hands in her shirt and down her pants, rubbed her 

chest and put his finger inside of her. 

This Court set forth the standard for declaring a mistrial in 

State v. Clawson (1989), 239 Mont. 413, 423, 781 P.2d 267, 273-74. 

There must be a manifest necessity to declare a 

mistrial and the defendant must 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 for declaring a mistrial was stated by the 

United States Supreme Court in United States v. 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 is a manifest necessity for the 

act, or the ends of public justice would otherwise be 

defeated. They are to exercise a sound discretion on the 

subject . . . The power ought to be used with the 

greatest caution, under urgent circumstances, and for 

very plan and obvious causes; . . . (Citations omitted). 

Considering all the circumstances and viewing the trial as a whole, 

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 there was ever penis-in-vagina sexual contact between 

the defendant and themselves. Therefore, it would be highly 

unlikely that the jury would take the meaning of the word 

ffeverythingff as used in the teacher's testimony out of the context 

of the rest of the testimony they heard throughout the trial. 

We conclude that the defendant was not deprived of a fair and 

impartial trial and there is no manifest necessity to declare a 
mistrial. 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