No. 91-293 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

STATE OF MONTANA, Plaintiff and Respondent,-vsROBERT GORDON BENTON, 

## JAN2

## 819921

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 ClerkJustice Terry 

### N. Trieweiler delivered the opinion of the Court. On June 11, 1990,the StateofMontana filed an Information in the Eleventh Judicial District Court in Flathead County, charging Robert Gordon Bentonwith attempted deliberatehomicide. 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 theDistrict Court errwhen itdenied Benton'smotion 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 instructionsuaspoiite 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, Bentonhad been convicted of sexual abuse, not child molesting, and the victim in that case was 32 2years 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 casewas 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 DistrictCourt sentenced Benton to 20yearsatMontana State Prison for the aggravated assault and added 10years foruse of a weapon. The court also designated Benton as a dangerousoffender forparole eligibility purposes. Benton appeals from the judgment and sentence of the District Court.

3I 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 DistrictCourtwhetherhe 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 fightwith 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 thevictim's characterby the defendant is unnecessary when the issue concerns which party was the aggressor. Benton also arguesthat 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 characterwould have been admissibleunder

### 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.

4However, 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 substantiallyoutweighed by the danger of unfair prejudice 

# . . . ." We agree with the District Court that the danger of unfair prejudice to the State clearlyoutweighed theprobativevalue of the evidence in question, because the evidence concerned only charqes, not a conviction. Furthermore, the chargeswere two years old at the time of trial. We hold that the District Courtdid not errwhen 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 childmolesting. The DistrictCourtdenied this motion, and Benton now argues that thiswas reversible error. We disagree.

5A 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 formistrial in the absence 

### of clearand convincing proof of error. Statev.Gambrel (1990), 246 Mont. 84, 91, 803 P.2d 1071, 1075

-76. Beforetrial,theparties agreed that evidence aboutthe false child molesting accusationwas necessary in order to show how the fight started. In fact, evidence of this false accusation was critical to Benton's theory thathe approached Poston and Rushford in the Log Cabin Bar in order to set the record straight by explaining that the accusationwas 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 FamilyServices. 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

6testimony. 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 inaccurateevidence thathewas convictedof child molesting. I11 Did the District Court err when it refused to give a cautionary instruction sua

### spoizte after the introductionof evidence that Benton had previously been convicted of child molesting? The DistrictCourtdid not give a cautionary instructionafter 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 failuretodo 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, siqnedby theparty orhis attornev,and delivered to the court. [Emphasisadded.] In StnteV. Close (1981), 191 Mont. 229, 244, 623 P.2d 940, 948, we applied this statute in refusing to consider an alleged error 7predicated 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

### January28, 

### 1992 CERTIFICATE

### OFSERVICE 

### Ihereby certifythatthefollowingorderwas sentby United Statesmail,prepaid, to the followingnamed:
DONVERNAY AttorneyatLaw 343firstAvenueWest Kalispell, MT 59901 HON.MARCRACICOT, AttorneyGeneral CreggW. Coughlin,Assistant JusticeBuilding Helena, MT 59620 TED

### 0.LYMPUS,FlatheadCountyAttorney FlatheadCountyCourthouse P.O. Box 1516 Kalispell, 

### MT59903

-1516
EDSMITH CLERKOFTHESUPREMECOURT STATEOFMONTANA