No. 91-293 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsROBERT GORDON BENTON, 

JAN 2 8 19921 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif B. Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Don Vernay, Attorney at Law, Kalispell, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Cregg W. Coughlin, Assistant Attorney General 

Ted 0. Lympus, Flathead County Attorney, 

Kalispell, Montana 

Filed: 

Submitted on Briefs: December 4, 1991 

Decided: January 28, 1992 

I Clerk 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

On June 11, 1990, the State of Montana filed an Information in 

the Eleventh Judicial District Court in Flathead County, charging 

Robert Gordon Benton with attempted deliberate homicide. The case 

was tried before a jury on September 24 and 25, 1990. At the 

conclusion of the evidence, the District Court instructed the jury 

on attempted deliberate homicide and aggravated assault, a lesser 

included offense. The jury acquitted Benton on the attempted 

deliberate homicide charge but convicted him on the aggravated 

assault charge. Benton appeals. We affirm. 

The issues are: 

1. Did the District Court err when it refused to allow 

Benton to inquire into the victim's prior arrest for felony 

assault? 

2. Did the District Court err when it denied Benton's motion 

for mistrial based on the introduction of evidence that Benton had 

previously been convicted of child molesting? 

3. Did the District Court err when it refused to give a 

cautionary instruction sua spoiite after the introduction of evidence 

that Benton had previously been convicted of child molesting? 

On April 26, 1990, the Flathead County Office of the 

Department of Family Services wrote to Laurie Sirucek, Benton's 

girlfriend, and told her that Benton had been convicted of child 

molesting in Oregon. In fact, Benton had been convicted of sexual 

abuse, not child molesting, and the victim in that case was 32 

2 
years old. Ms. Sirucek showed the Family Services letter to 

Benton's friends Larry Poston and Douglas Rushford. Poston and 

Rushford then told Benton they wanted nothing further to do with 

him. 

On May 16, 1990, Poston and Rushford were drinking at the Log 

Cabin Bar in downtown Kalispell when Benton walked in. Poston and 

Benton began arguing about the letter. Benton then invited Poston 

to step outside. Rushford insisted that anyone who went outside 

should go out the front door so that there would be witnesses. 

Benton went out the front door and Rushford followed. 

A physical altercation followed, and Benton stabbed Rushford 

in the chest. Rushford testified that Benton stabbed him without 

warning. Benton, on the other hand, testified that he had the 

knife out to deter Rushford and that when Rushford charged him he 

held the knife out to defend himself. Benton fled. Rushford 

returned to the bar and passed out. 

The case was tried before a jury on September 24 and 25, 1990. 

Benton relied on the affirmative defense of justifiable use of 

force. The jury found Benton guilty of aggravated assault. The 

District Court sentenced Benton to 20 years at Montana State Prison 

for the aggravated assault and added 10 years for use of a weapon. 

The court also designated Benton as a dangerous offender for parole 

eligibility purposes. Benton appeals from the judgment and 

sentence of the District Court. 

3 
I 

Did the District Court err when it refused to allow Benton to 

inquire into the victim's prior arrest for aggravated assault? 

Before trial, Benton asked the District Court whether he could 

introduce evidence that Rushford was facing pending aggravated 

assault charges in Arizona. The court refused to permit this 

evidence on the grounds that it was irrelevant unless Benton knew 

of the charges at the time of the fight with Rushford, and that it 

was of little probative value in any event. 

Benton now argues that this was reversible error. He cites 

Statev.Logaiz (1970), 156 Mont. 48, 473 P.2d 833, for the proposition 

that proof of knowledge of the victim's character by the defendant 

is unnecessary when the issue concerns which party was the 

aggressor. Benton also argues that Rule 404(b), M.R.Evid., and state 

v. Just (1979), 184 Mont. 262, 602 P.2d 957, do not expressly require 

a balancing of probative value against unfair prejudice when the 

evidence tends to impugn the character of someone other than the 

defendant. 

Benton is correct to the extent that probative evidence of 

Rushford's character would have been admissible under Logan to show 

that Rushford was the aggressor. In fact, the District Court 

allowed Benton to inquire into other instances of Rushford's 

conduct in order to show that he had a disposition to violence. 

4 
However, the District Court did not err in excluding Benton's 

proposed evidence about Rushford's assault charges because that 

evidence lacked probative value. 

Although Rule 404 and Just did not require the exclusion of 

this evidence, it was nonetheless inadmissible under Rule 403, 

M.R.Evid. Rule 403 provides that "[allthough relevant, evidence 

may be excluded if its probative value is substantially outweighed 

by the danger of unfair prejudice . . . . " We agree with the 

District Court that the danger of unfair prejudice to the State 

clearly outweighed the probative value of the evidence in question, 

because the evidence concerned only charqes, not a conviction. 

Furthermore, the charges were two years old at the time of trial. 

We hold that the District Court did not err when it refused to 

allow Benton to inquire into the victim's prior arrest for 

aggravated assault. 

I1 

Did the District Court err when it denied Benton's motion for 

mistrial based on the introduction of evidence that Benton had 

previously been convicted of child molesting? 

At the close of his own case in chief, Benton moved for a 

mistrial based on Rushford's inaccurate testimony that Benton was 

previously convicted of child molesting. The District Court denied 

this motion, and Benton now argues that this was reversible error. 

We disagree. 

5 
A mistrial is appropriate only upon a demonstration of 

manifest necessity coupled with the denial of a fair and impartial 

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

273-74. We will not overturn a lower court's denial of a motion 

for mistrial in the absence of clear and convincing proof of error. 

Statev. Gambrel (1990), 246 Mont. 84, 91, 803 P.2d 1071, 1075-76. 

Before trial, the parties agreed that evidence about the false 

child molesting accusation was necessary in order to show how the 

fight started. In fact, evidence of this false accusation was 

critical to Benton's theory that he approached Poston and Rushford 

in the Log Cabin Bar in order to set the record straight by 

explaining that the accusation was inaccurate. Benton now argues 

that while the jury should have heard that he was falsely accused 

of child molesting, it should not have heard inaccurate evidence 

that he was convicted of that offense. 

At most, however, the introduction of this evidence was 

harmless error. Rushford, the State's own witness, testified that 

he had no knowledge of a conviction other than the allegations in 

the letter from Family Services. Furthermore, the testimony itself 

was true--the letter did indeed indicate that Benton had been 

convicted of child molesting, and Rushford and Poston apparently 

believed it to be accurate. Benton then took the stand and 

unequivocally denied that he had ever been arrested or convicted 

for child molesting. The State made no attempt to rebut this 

6 
testimony. Furthermore, the State did not attempt to place the 

fact of Benton's sexual abuse conviction before the jury. 

We conclude that Benton has not carried his burden of showing 

how the introduction of the evidence in question denied him a fair 

and impartial trial. We hold that on this record the District 

Court did not err in denying Benton's motion for a mistrial based 

on the introduction of inaccurate evidence that he was convicted of 

child molesting. 

I11 

Did the District Court err when it refused to give a 

cautionary instruction sua spoizte after the introduction of evidence 

that Benton had previously been convicted of child molesting? 

The District Court did not give a cautionary instruction after 

the State introduced testimony about the letter from Family 

Services. Benton now argues that the court should have given such 

an instruction and that its failure to do so constitutes reversible 

error. We disagree. If a cautionary instruction was required, 

Benton should have proposed one to the court. 

Section 46-16-401(4) (a), MCA (1989), the statute in effect at 

the time of trial, provided that: 

When the evidence is concluded, if either party desires 

special instructions to be given to the jury, such 

instructions shall be reduced to writinq, numbered, 

siqned by the party or his attornev, and delivered to the 

court. [Emphasis added.] 

In StnteV. Close (1981), 191 Mont. 229, 244, 623 P.2d 940, 948, we 

applied this statute in refusing to consider an alleged error 

7 
predicated on the lack of a cautionary instruction because the 

defendant in that case had not offered the necessary instruction. 

In this case, the burden of drafting and offering the 

necessary instruction fell on Benton. We hold that the District 

Court did not err by not giving a cautionary instruction because 

Benton did not offer one. 

The judgment of the District Court is affirmed. 

We concur: 

8 
January 28, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

DON VERNAY 

Attorney at Law 

343 first Avenue West 

Kalispell, MT 59901 

HON. MARC RACICOT, Attorney General 

Cregg W. Coughlin, Assistant 

Justice Building 

Helena, MT 59620 

TED 0. LYMPUS, Flathead County Attorney 

Flathead County Courthouse 

P.O. Box 1516 

Kalispell, MT 59903-1516 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA