DA 11-0706

IN THE SUPREME COURT OF THE STATE OF MONTANA

2013 MT 85N

KIRK R. MOLDER,

 Petitioner and Appellant,

 v.

STATE OF MONTANA,

 Respondent and Appellee.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. BDV 08-500

Honorable Julie Macek, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Kirk R. Molder, Sr. (self-represented), Deer Lodge, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant 

Attorney General, Helena, Montana

John Parker, Cascade County Attorney; Kory Larsen, Deputy County 

Attorney, Great Falls, Montana

Submitted on Briefs: February 13, 2013

 Decided: April 3, 2013

Filed:

__________________________________________

Clerk

April 3 2013
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Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court Internal Operating 

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve 

as precedent. Its case title, cause number, and disposition shall be included in this Court’s 

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Kirk R. Molder (Molder) appeals from an Order from the Montana Eighth Judicial 

District Court, Cascade County, that denied his Petition for Postconviction Relief. The issue 

on appeal is whether the District Court properly concluded that Molder had failed to prove 

that he had received ineffective assistance of counsel and was, therefore, not entitled to 

relief. We affirm.

¶3 On November 10, 2004, a jury convicted Molder of five counts of Sexual Intercourse 

Without Consent and four counts of Incest. For each count, the District Court sentenced 

Molder to 75 years in the Montana State Prison with the terms to run concurrently. Molder 

appealed, arguing that the trial court should have continued the trial because counsel was not 

prepared and because he and his attorney disagreed on the trialstrategy. This Court affirmed 

his convictions in February of 2007. State v. Molder, 2007 MT 41, 336 Mont. 91, 152 P.3d 

722. 

¶4 Molder filed a Petition for Postconviction Relief on April 14, 2008. The District 

Court appointed counsel to assist Molder with his petition. On July 29, 2010, Molder filed 

an Amended Petition for Postconviction Relief in which he claimed that he had received 

ineffective assistance from his trial counsel for a litany of reasons. Molder also argued that, 
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should the District Court determine that any of his claims were record based and thus 

procedurally barred, then his appellate counsel was ineffective for failing to raise those 

issues on direct appeal. 

¶5 Specifically, Molder argued that his trial counsel, who has since died, was ineffective 

because he: 1) refused to offer into evidence certain medical examination reports; 2) refused 

to offer evidence and elicit testimony regarding one of the victim’s prior sexual conduct to 

explain the victim’s genital injuries; 3) failed to elicit testimony regarding the victims’ prior 

sexual conduct to establish a motive for them to fabricate the allegations; 4) failed to 

challenge his Incest charges with a prior court order from a Youth in Need of Care 

proceeding that established that he had no legal relationship to the victims that would entitle 

him to participate in that proceeding; 5) failed to seek a specific unanimity instruction; 6) 

failed to object to the prosecutor’s definition of “reasonable doubt” during voir dire; 7) failed 

to challenge certain prospective jurors for cause; 8) failed to object to a detective’s testimony 

that he thought the victims had been coached to deny abuse; and 9) failed to challenge the 

State’s rebuttal child sexual abuse expert. In addition to claiming that he had been 

prejudiced by each supposed error, Molder also claimed that he had been prejudiced by his 

trial counsel’s cumulative errors. 

¶6 The District Court held an evidentiary hearing on October 5, 2011. At the conclusion 

of the hearing, the District Court denied a number of Molder’s claims. The court determined 

at the hearing that the question of whether Molder could be charged with Incest was not the 

same question as whether he had parental rights that would allow him to participate in the 

victims’ Youth in Need of Care proceedings. The court also concluded that Molder’s 
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counsel had no reason to object to the prosecution’s comments during voir dire regarding 

what a “reasonable doubt” means, and there was no basis for Molder’s complaint about trial 

counsel’s performance while selecting the jury. Lastly, the court denied Molder’s claim that 

his trial counsel provided ineffective assistance by failing to challenge the detective’s 

testimony because his counsel did, in fact, object to the testimony. The District Court took 

the rest of Molder’s claims under advisement.

¶7 The District Court denied the remaining claims in a detailed written order issued on 

January 18, 2012. The court concluded that it was sound trial strategy for Molder’s counsel 

to refuse to offer into evidence the medical records that Molder wanted admitted. Those 

records had little exculpatory value and even Molder admitted that they would have been 

problematic if put in front of the jury. Instead, Molder’s counsel addressed the records while 

questioning witnesses and during closing arguments.

¶8 The court also determined that Molder’s counsel did not err by refusing to offer 

evidence of the victims’ prior sexual conduct to impeach the victims and to offer an 

alternative explanation for one of the victim’s injuries. The court held, and we agree, that the 

evidence that Molder wanted admitted was inadmissible under § 45-5-511(2), MCA, 

Montana’s Rape Shield Statute. 

¶9 The court also concluded that trial counsel’s performance was not deficient for failing 

to request a unanimity instruction because, “there was in fact no genuine possibility 

whatsoever that different jurors would conclude that Molder committed disparate illegal acts 

subsumed under the single count [without a unanimity instruction].” Lastly, the court 

determined that Molder’s trial counsel’s performance was not deficient for failing to 
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challenge the State’s rebuttal child sexual abuse expert because counsel did, in fact, register a 

number of objections to the expert’s testimony. Counsel specifically advised the jury that he 

had made a strategic tactical decision not to cross-examine the expert and instead address the 

testimony during his closing argument. The District Court found that decision to be 

objectively reasonable. 

¶10 Molder appeals the denial of each of his claims. A defendant claiming ineffective 

assistance of counsel must prove that counsel’s representation was deficient and that 

counsel’s deficient performance prejudiced the defense. State v. Whitlow, 2001 MT 208, 

¶ 17, 306 Mont. 339, 33 P.3d 877; Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052. 

Counsel’s performance was deficient if it fell below “an objective standard of 

reasonableness.” State v. Roedel, 2007 MT 291, ¶ 42, 339 Mont. 489, 171 P.3d 694. The 

defendant must overcome a strong presumption that counsel’s performance falls within the 

wide range of reasonable professional assistance and was based on sound trial strategy. 

Whitlow, ¶ 17. The defendant was prejudiced by counsel’s performance if, but for the 

unprofessional errors, there is a reasonable probability that the result of the proceeding 

would have been different. Price v. State, 2007 MT 307, ¶ 12, 340 Mont. 109, 172 P.3d 

1236; Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. 

¶11 After reviewing the record and the District Court’s Orders, we conclude that the 

District Court correctly determined that all of Molder’s claims lacked merit. Molder has 

failed to establish that his trial counsel’s performance was deficient or that he suffered 

prejudice as a result of counsel’s performance. Further, given that he cannot establish that 

counsel was deficient at trial, Molder cannot meet his burden of establishing that his counsel 
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on appeal was deficient for failing to raise these same issues. The gravamen of the issues 

raised in Molder’s Petition for Postconviction Relief was the basis for the issues that he 

raised on direct appeal in 2005. The Court held specifically that, “[w]e cannot determine, on 

the record presented, that counsel’s strategy was unreasonable.” Molder, ¶ 26.

¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our 

1996 Internal Operating Rules, as amended in 2006, which provides for memorandum 

opinions. The issues are clearly controlled by settled Montana law, and we find no reason in 

fact or law to disturb the District Court’s order. 

¶13 For the reasons stated above and for the reasons set forth by the District Court, the 

denial of Molder’s Petition for Postconviction Relief is affirmed.

/S/ MIKE McGRATH

We concur:

/S/ BETH BAKER

/S/ PATRICIA COTTER

/S/ BRIAN MORRIS

/S/ JIM RICE