No. 01-569 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 317 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

FRANCISCO RODARTE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Kenneth R. Neill, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Keith, Attorney at Law, Great Falls, Montana 

For Respondent: 

Hon. Mike McGrath, Attorney General; Cregg W. Coughlin, 

Assistant Attorney General, Helena, Montana 

Brant Light, Cascade County Attorney, Great Falls, Montana 

Submitted on Briefs: August 29, 2002 

Decided: December 19, 2002 

Filed: 

__________________________________________ 

Clerk
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Justice Jim Regnier delivered the Opinion of the Court. 

¶1 Appellant Francisco Rodarte (“Rodarte”) was convicted in the 

Eighth Judicial District Court, Cascade County, on four counts of 

Incest, a felony, pursuant to § 45-5-507, MCA. Rodarte appeals his 

conviction. We affirm the District Court. 

¶2 We address the following issues on appeal: 

¶3 Did the State make an improper closing argument, and if so, 

should the District Court have granted Rodarte’s motion for 

mistrial? 

¶4 Did the District Court improperly allow evidence which should 

have been excluded under Rule 404(b), Mont.R.Evid.? 

BACKGROUND 

¶5 Rodarte and Mona Ekblad, now his ex-wife, are the parents of 

two children. One evening in October of 1999, Rodarte’s then 

eight-year-old daughter disclosed to her mother, Mona, that her 

father had been touching her. After the victim had told Mona that 

Rodarte touched her, Mona overheard Rodarte in the bedroom tell the 

victim to “keep it a secret, otherwise if she was to tell anybody 

he would be put away for a long period of time.” Rodarte also told 

Mona that the victim “just makes me hot.” On another occasion, 

Rodarte said to Mona’s brother, Dean Ekblad, “I don’t know what it 

is about [my daughter], but she makes me hot.” 

¶6 Mona waited until she thought she had sufficient information 

and then reported the situation to the police. Rodarte was 

arrested in February of 2000. In April of that year, Rodarte 

mailed a letter to Mona in which he wrote: 
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Well, they are going to drop three of my charges and then 

I may go up for 200 years. That is what I am looking at. 

 And that is not good at all. If you and [the victim] 

don’t show up, I can get off and get out. 

¶7 At trial, the victim testified that Rodarte would “hump” her 

and that she felt his “wiener” on more than one occasion. She 

testified further that while on the floor watching television, 

Rodarte would lie beside her and put his finger into her vagina. 

Rodarte was convicted on four counts of Incest, in violation of § 

45-5-507, MCA. On appeal, Rodarte argues the District Court should 

have granted his motion for mistrial based upon statements made in 

the prosecution’s closing argument. Rodarte also argues that the 

District Court improperly admitted evidence that should have been 

excluded under Rule 404(b), Mont.R.Evid. 

STANDARD OF REVIEW 

¶8 We review a district court’s grant or denial of a motion for a 

mistrial to determine whether the court abused its discretion. 

State v. Gladue, 1999 MT 1, ¶ 11, 293 Mont. 1, ¶ 11, 972 P.2d 827, 

¶ 11. 

¶9 The standard of review for evidentiary rulings is whether the 

district court abused its discretion. State v. Gollehon (1993), 

262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of 

whether evidence is relevant and admissible is left to the sound 

discretion of the trial judge and will not be overturned absent a 

showing of abuse of discretion. Gollehon, 262 Mont. at 301, 864 

P.2d at 1263. 
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DISCUSSION 

ISSUE ONE 

¶10 Did the State make an improper closing argument, and if so, 

should the District Court have granted Rodarte’s motion for 

mistrial? 

¶11 Following the State’s closing argument, Rodarte moved for a 

mistrial. The District Court denied the motion. Rodarte 

predicated his motion on several grounds, all of which we address 

below. 

¶12 During the State’s closing argument, the prosecutor pointed 

out that Rodarte did not offer any reason the witnesses may have 

lied or made up their testimony. The prosecutor stated: “Nothing 

has been offered from that witness stand that has told you any 

reason why any of these people would lie or make this up. He could 

have inquired into any of them. Why? Why? Why? Is there any 

kind of bad relationship among you? Why would [the victim] name 

her father?” 

¶13 Rodarte contends that it is error for the prosecution to make 

arguments based on failure of the defense to elicit testimony from 

witnesses or call witnesses. Rodarte cites, without any 

discussion, two cases in support of this contention: U.S. v. Viera

(5th Cir. 1987), 819 F.2d 498 and U.S. v. Williams (7th Cir. 1984), 

739 F.2d 297. Neither Viera nor Williams supports the proposition 

for which Rodarte cites them. In both Viera and Williams, the 

issue was whether it was permissible for the prosecution to raise 
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to the jury the possibility of drawing an inference from the other 

party’s failure to call a particular witness. 

¶14 Here, the prosecution referenced the defense’s failure to put 

on evidence which contradicted testimony of witnesses for the 

prosecution, not why the defense failed to put on a particular 

witness. While it is improper for the prosecution to comment on 

the failure of a defendant to testify on his own behalf, the 

prosecution is permitted to point out facts at issue which could 

have been controverted by persons other than the defendant, but 

were not. Lockett v. Ohio (1978), 438 U.S. 586, 98 S.Ct 2954, 57 

L.Ed.2d 973. 

¶15 Rodarte also contends that his motion for mistrial should have 

been granted because of the prosecution’s repetition of the fact 

that the victim’s statements were not contradicted. Rodarte’s 

brief makes no reference to legal authority to support his argument 

regarding repetition. Rule 23(a)(4), M.R.App.P., requires that an 

appellant present a concise, cohesive argument which “contain[s] 

the contentions of the appellant with respect to the issues 

presented, and the reasons therefor, with citations to the 

authorities, statutes and pages of the record relied on.” This 

Court has repeatedly held that we will not consider unsupported 

issues or arguments. Similarly, this Court is under no obligation 

to locate authorities or formulate arguments for a party in support 

of positions taken on appeal. In re Marriage of McMahon, 2002 MT 

198, ¶ 6, 311 Mont. 175, ¶ 6, 53 P.3d 1266, ¶ 6. 

ISSUE TWO 
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¶16 Did the District Court improperly allow evidence which should 

have been excluded under Rule 404(b), Mont.R.Evid.? 

¶17 Before trial, the District Court denied Rodarte’s motion in 

limine to exclude certain evidence under Montana Rule of Evidence 

404(b). Rule 404(b), Mont.R.Evid., states: 

Other Crimes, Wrongs, Acts. Evidence of other crimes, 

wrongs, or acts is not admissible to prove the character 

of a person in order to show action in conformity 

therewith. It may, however, be admissible for other 

purposes, such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of 

mistake or accident. 

¶18 The evidence Rodarte sought to exclude consisted of statements 

he made to his wife’s brother, Dean Ekblad, that he thought his own 

daughter was “hot” and that he didn’t worry about sex because he 

could just go to another bedroom, and letters he sent to his wife, 

Mona Ekblad, stating that if Mona and their daughter did not show 

up in court, he could “get off and get out.” 

¶19 Rodarte first argues that the statements made to Dean Ekblad 

were neither a part of the case against Rodarte nor an admission or 

a confession, and therefore not admissible into evidence. The 

prosecution is permitted to introduce evidence which tends to 

explain the circumstances surrounding the alleged offense if the 

evidence is relevant, probative, and competent. State v. Bauer, 

2002 MT 7, ¶ 22, 308 Mont. 99, ¶ 22, 39 P.3d 689, ¶ 22. Rodarte’s 

contention that the statements he made to Dean Ekblad were “wholly 

independent of the crime charged” is not correct. Rodarte was 

charged with incest, and statements he made that his daughter was 
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“hot” and that he didn’t worry about sex because he could just go 

to another bedroom are clearly relevant, probative and competent. 

¶20 Second, Rodarte claims that the letter he wrote to Mona Ekblad 

was the basis of a separate charge against him for intimidation, 

and therefore not admissible in his trial for incest pursuant to 

Montana Rule of Evidence 404(b). The State brought a separate 

charge against Rodarte based upon the letter, but it was later 

dismissed. Rodarte argues that the letter was inadmissible because 

the prosecution failed to comply with the requirements of State v. 

Just (1979), 184 Mont. 262, 602 P.2d 957. Just sets forth 

procedures for introduction of evidence for other crimes not 

charged, which requires notice be given to the defendant that such 

evidence is to be introduced. Just, 184 Mont. at 274, 602 P.2d at 

963-64. 

¶21 In State v. Shaw (1982), 199 Mont. 248, 252, 648 P.2d 287, 

289-90, we stated that “[i]n a criminal prosecution any attempted 

intimidation of a witness is properly attributable to a 

consciousness of guilt and testimony relating thereto is relevant 

and admissible in evidence.” While it appears the letter to Mona 

was an attempt at witness tampering, another crime, it is also 

evidence which tends to show guilt which is admissible under Shaw. 

 

¶22 In summary, we find that the District Court properly denied 

Rodarte’s motion for mistrial and Rodarte’s statements to Dean 

Ekblad and the letter to Mona Ekblad were properly admitted into 

evidence. 
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¶23 Affirmed. 

/S/ JIM REGNIER 

We Concur: 

/S/ KARLA M. GRAY 

/S/ TERRY N. TRIEWEILER 

/S/ W. WILLIAM LEAPHART 

/S/ JIM RICE