                                                                                           August 24 2010


                                           DA 09-0558

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2010 MT 186



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

FRANK JOACHIM KNOWLES,

              Defendant and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. BDC 2008-197
                        Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad M. Wright, Hooks & Wright, P.C., Helena, Montana

                For Appellee:

                        Steve Bullock, Montana Attorney General, Tammy K Plubell, Assistant
                        Attorney General, Helena, Montana

                        Leo Gallagher, Lewis and Clark County Attorney, Tara A. Harris, Deputy
                        County Attorney, Helena, Montana



                                                    Submitted on Briefs: June 30, 2010

                                                               Decided: August 24, 2010


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Frank Joachim Knowles (Knowles) appeals his conviction for felony assault with

a weapon in the First Judicial District Court. We reverse Knowles’ conviction and

remand this matter for a new trial.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2     In September 2004, Knowles and his wife Cindy adopted a boy now named C.F.

In September 2006, they adopted another boy, B.K. B.K. is currently fifteen and C.F. is

eleven.

¶3     In April 2008, Frank, Cindy and the boys were residing in Lincoln, Montana. On

April 29, 2008, C.F. showed up at school with injuries to his face. At the time, Knowles

was out of town in Pennsylvania on a business trip. The school principal, Jilyn Oliveria

(Jilyn), reported the abuse and took photographs of C.F.’s face. Department of Public

Health and Human Services (DPHHS) social worker Jim Abrahamson (Abrahamson)

drove to Lincoln in order to interview C.F. By the time Abrahamson arrived at the

school, class had been dismissed for the day and the boys had gone home. Based on the

photographs taken by Jilyn, Abrahamson thought that C.F. had been slapped on the left

side of his face hard enough to leave a handprint. Abrahamson went to the boys’ home to

talk with C.F. and investigate the matter.

¶4     Abrahamson subsequently observed the injuries to C.F.’s face.            C.F. told

Abrahamson that Cindy had slapped him several times on the face because he was talking

with food in his mouth. C.F. stated that he fell on the floor, and Cindy got on top of him

and continued to slap him.      After interviewing C.F., Abrahamson concluded it was


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necessary to remove both C.F. and B.K. from Cindy’s care. At the time, B.K. did not

report any injuries to Abrahamson and did not have any noticeable physical injuries.

Abrahamson placed the children with Jilyn, since there were no other readily-available

placements in Lincoln. On April 30, Abrahamson spoke with Knowles by telephone to

let him know that he had removed the boys from Cindy’s care and why he had done so.

¶5     Later that same day, Abrahamson took the boys to be examined by Dr. Thomas

Strizich (Dr. Strizich), a Helena pediatrician. B.K. was twelve years old at the time and

of below average height and weight. Dr. Strizich examined B.K. and discovered a series

of bruises on the back of his right thigh and hip area. The area of bruising measured

approximately fifteen centimeters. Dr. Strizich photographed the injuries.

¶6     B.K. subsequently told Dr. Strizich and Abrahamson that Knowles struck him with

a belt about fifteen to twenty times around the time that Knowles left on his business trip.

As he later testified, Dr. Strizich believed that the bruising he observed was consistent

with being struck with a belt. After the medical appointment, Abrahamson contacted

Knowles by telephone and asked him whether there had been an incident between him

and B.K. before he left on his trip. In recounting their conversation at trial, Abrahamson

told the jury that Knowles did not tell him of any incidents. Abrahamson told Knowles

about the bruising on the back of B.K.’s thigh.        When Knowles returned from his

business trip several days later, he met with Abrahamson again.                During this

conversation, Abrahamson claimed that Knowles admitted to spanking B.K. with a belt

prior to leaving on his business trip.




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¶7     Knowles and Cindy were subsequently charged with assault on a minor, in

violation of § 45-5-212, MCA. Their trials were separated. Prior to trial, the State filed

written notice of its intent to introduce against Knowles evidence of prior bad acts

pursuant to the criteria of the Modified Just Rule as set forth in State v. Matt, 249 Mont.

136, 814 P.2d 52 (1991). These criteria are as follows:

              (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. Aakre, 2002 MT 101, ¶ 9, 309 Mont. 403, 46 P.3d 648.

¶8     Specifically, the State sought to introduce evidence of Knowles’ participation in

hitting his children with a belt, not allowing his children to leave their room, slapping the

children, and other acts against the boys. The State also sought to introduce evidence that

Cindy had been charged with assault of a minor, as well as evidence of C.F.’s injuries.

The District Court allowed the State to present this evidence at trial.          Cindy was

convicted on November 18, 2008, and received a three-year sentence with the

Department of Corrections. Knowles’ trial was held on December 2, 2008. The jury was

unable to reach a verdict, and the District Court declared a mistrial.

¶9     After the mistrial, the State offered Knowles an open plea offer for the assault on a

minor charge. The State informed Knowles that if he did not accept this deal, it would


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amend the charge to felony assault with a weapon. Felony assault with a weapon in

violation of § 45-5-213(1)(a), MCA, carries a maximum term of imprisonment of twenty

years, while felony assault on a minor carries a maximum term of only five years.

Knowles rejected the plea deal and exercised his right to go to trial a second time.

¶10    An amended information was filed on December 22, 2008. As promised, the State

charged Knowles with felony assault with a weapon. The State alleged that Knowles

purposefully or knowingly caused bodily injury to B.K. with a weapon by hitting him

multiple times with a belt in April 2008. In April 2009, the State again filed written

notice of its intent to introduce evidence of prior bad acts.        Knowles opposed the

introduction of this evidence. He argued that because the assault with a weapon charge

was limited to his use of a belt against B.K. (as opposed to the previous general assault

charge), the bad act evidence previously admitted was no longer admissible. The District

Court, relying on State v. Murray, 228 Mont. 125, 741 P.2d 759 (1987), held that while

the first of the Modified Just Rule criteria (i.e., similarity of the prior acts) may not be

clearly met in an excessive discipline case, the other three criteria were met so as to allow

the admission of evidence of other acts of excessive discipline. Accordingly, the District

Court ruled that it would allow other evidence of Knowles’ actual physical or threatened

abuse of B.K. and C.F.; however, it limited evidence of Cindy’s conduct to the initial

slapping of C.F. which led to the charges against Knowles.

¶11    Prior to trial, Knowles sought to compel discovery of the evaluation, counseling

and written records of Abrahamson, and the files of a private evaluator, Wendy Bazinet,

as well as the records maintained by the Child and Family Services Division (CFSD) of


                                          5
DPPHS. Knowles argued that because the counseling and investigations were initiated

by the State and were important in the previous trial, no claim of privilege to withhold

those documents existed. Although Knowles had been given a typed summary report

prepared by Abrahamson, he argued that this was insufficient to aid in his defense. The

District Court denied the motion after an in camera review of the CFSD material. The

District Court found that none of the documents in the CFSD file were relevant to the

charges and that there were no “smoking guns” which would provide any additional

insight into the case or would otherwise be discoverable under § 41-3-204(2), MCA.

¶12    A jury trial was held from June 15-17, 2009. B.K., C.F., Abrahamson, Knowles,

Dr. Strizich, Jilyn, defense expert Dr. Thomas Bennett, and others testified at trial.

During Jilyn’s testimony, the District Court admitted a photograph of C.F.’s facial

injuries over Knowles’ objection.     The District Court gave a cautionary instruction

regarding the limited purposes of other bad act evidence at that time. Jilyn testified about

Cindy’s conduct towards the boys, the injuries she had witnessed on C.F., and that Cindy

had attempted to intimidate the boys when they were giving statements to Abrahamson.

B.K. and C.F. both testified about the punishments Knowles would administer to them.

B.K. testified that Knowles would have him lie face down on a bed with his pants pulled

down, and that Knowles would strike him with a belt on the bare skin as a form of

punishment. B.K. testified that he would receive multiple hits with the belt. B.K.

testified that Knowles caused the bruising to his thigh area when he hit him with a belt

prior to leaving on his business trip. However, B.K. also testified that Knowles would




                                         6
fold the belt in half when administering this punishment, and never hit him with a belt

buckle.

¶13    Abrahamson testified about his investigation and the telephone conversation he

had with Knowles on April 30. Abrahamson told the jury that Knowles denied there had

been any incident between him and B.K. before he left on his business trip, and that

Knowles did not acknowledge disciplining B.K. with a belt until he spoke with

Abrahamson after returning from his trip. Knowles cross-examined Abrahamson about

this conversation, and unsuccessfully attempted to question Abrahamson about prior

statements on this topic which he had made in the previous trial. Additionally, Knowles

sought to question Abrahamson about whether he took any notes during their phone

conversation, since there were no notes of the April 30 conversation in Abrahamson’s

summary report.     Abrahamson indicated that notes could possibly be in the CFSD

investigative file, but no notes had been produced at the time of trial.

¶14    At the close of the State’s case-in-chief, Knowles moved to preserve the records

from the CFSD investigative file so that Abrahamson’s notes from the April 30

conversation could be retrieved. The District Court advised Knowles that it had already

returned the file, but granted Knowles’ request to retrieve any notes. Knowles also

moved to dismiss the assault with a weapon charge on the basis of vindictive prosecution,

arguing that no additional evidence about the extent of B.K.’s injuries had been presented

by the State in its case-in-chief in the second trial, and that the State had enhanced the

charges against him from assault on a minor to assault with a weapon based solely upon




                                          7
Knowles’ exercise of his right to go to trial a second time. The District Court took the

motion under advisement in order to give the State time to respond.

¶15    In his defense, Knowles called Dr. Bennett, a board-certified forensic pathologist,

to testify about the bruising on B.K. Dr. Bennett testified that the buckles of the belts in

evidence did not match the size of the distinctive marking which Dr. Strizich testified

was caused by the belt buckle. Dr. Bennett opined that the bruises had not been caused

by the belt, but instead appeared to be caused by multiple hits from a solid object at least

three inches long. Knowles called his friend William Wellenstein to testify as well.

Wellenstein testified that he saw B.K. and friends hitting each other with a jump rope on

the playground at school around the time of the alleged assault.          Knowles himself

testified that he did not cause the bruising. He admitted using a belt to spank both C.F.

and B.K., but claimed he never hit them with a belt buckle. The State cross-examined

Knowles about his April 30 phone conversation with Abrahamson, and questioned why

Knowles had not informed Abrahamson of disciplining B.K. prior to leaving on the trip.

Knowles responded that he thought he had told Abrahamson about the incident, but was

unsure how much detail he had given him.

¶16    The jury convicted Knowles of assault with a weapon.           Post-trial, the court

advised the parties that Knowles’ motion to supplement the record with regard to

Abrahamson’s testimony about the April 30 telephone conversation was granted;

however, CFSD later reported to the court that the investigative file did not contain any

notes about this telephone conversation.




                                           8
¶17    At the sentencing hearing, the District Court denied Knowles’ motion to dismiss

the charge based on vindictive prosecution. However, when the State recommended a

sentence of twenty years in the Montana State Prison with five years suspended, the

District Court expressed surprise at the length of the sentence, especially given the fact

that the original charge of assault with a minor had carried a much shorter sentence.

Upon query by the court, the State explained that prior to the first trial it had offered a

plea deal on partner family member assault, with some jail time and a suspended

sentence. When that proposal was rejected, the State went to trial on the assault on a

minor charge against Knowles. The State then explained that after the mistrial, it offered

an open plea agreement for assault on a minor, but informed Knowles it would amend to

assault with a weapon if he did not accept the deal. Near the end of the hearing, the

District Court commented that the recommended sentence was harsher than other

sentences previously recommended by the State for more violent crimes. In response, the

State explained that it felt Knowles was deserving of a harsher sentence because the case

involved young children whose lives had been completely altered, and because Knowles

had been engaged in a pattern of chronic abuse against the children. The District Court

ultimately imposed a ten year sentence with all but six months suspended.

¶18    Knowles appeals his conviction. We state the issues on appeal as follows:

¶19    Issue One: Did the District Court err in denying Knowles’ motion to dismiss the

assault with a weapon charge based on prosecutorial vindictiveness?

¶20    Issue Two: Did the District Court abuse its discretion when it admitted evidence

of Cindy’s abuse of C.F.?


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¶21    Issue Three:    Did the District Court impair Knowles’ ability to present his

defense and effectively cross-examine Abrahamson, by denying him access to the CFSD

investigative file?

                              STANDARD OF REVIEW

¶22    We review a district court’s evidentiary rulings on the relevancy and admissibility

of evidence for an abuse of discretion. Aakre, ¶ 8. A district court’s decision to admit

evidence of other crimes, wrongs, or acts under the Modified Just Rule is reviewed under

the abuse of discretion standard as well. Aakre, ¶ 8. An abuse of discretion occurs if the

court acts arbitrarily without the employment of conscientious judgment, or exceeds the

bounds of reason resulting in substantial injustice. State v. Passmore, 2010 MT 34, ¶ 51,

355 Mont. 187, 225 P.3d 1229.

¶23    The denial of a motion to dismiss in a criminal case presents a question of law

which we review de novo. Passmore, ¶ 39 (citing State v. Giddings, 2009 MT 61, ¶ 42,

349 Mont. 347, 208 P.3d 363). Findings of fact in support of such a decision are

reviewed under the clearly erroneous standard. Passmore, ¶ 39.

                                     DISCUSSION

¶24    Issue One: Did the District Court err in denying Knowles’ motion to dismiss the
       assault with a weapon charge based on prosecutorial vindictiveness?

¶25    Knowles argues that the assault with a weapon charge should have been dismissed

based on prosecutorial vindictiveness.    At the first trial, Knowles was charged with

assault on a minor, which carries a maximum imprisonment of five years. After the

mistrial, the State charged him with assault with a weapon, which carries a maximum



                                         10
term of twenty years imprisonment. Knowles contends that the increased charge was

levied solely because he exercised his right to go to trial a second time, rather than accept

a plea deal.

¶26    Knowles argues that under Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098

(1974), and North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072 (1969), overruled on

other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201 (1989), he may not be

penalized with the imposition of a harsher sentence or increased charges merely for

exercising his right to go to trial after the first mistrial. Citing United States v. Groves,

571 F.2d 450 (9th Cir. 1978), he contends that vindictiveness will be presumed when the

circumstances surrounding the prosecutorial decision at issue create the appearance of

vindictiveness. Such a presumption of vindictiveness arises here, he argues, because the

evidence presented in the second trial was not different or more serious than the evidence

presented in the first trial. Lacking new evidence to justify the heightened charge,

Knowles reasons that the only conclusion to be reached is that the State increased the

charges because he refused to accept a plea bargain. He therefore urges us to reverse the

District Court’s refusal to dismiss on the basis of vindictiveness, and remand for

reinstatement of the original charge of assault on a minor.

¶27    In response, the State notes that it notified Knowles after the mistrial in the first

case that it would hold an open plea deal to assault with a minor, and that if he failed to

take the deal it would amend to assault with a weapon. When Knowles failed to respond,

the State filed the amended information. The State contends that under State v. Smith,

280 Mont. 158, 931 P.2d 1272 (1996) and State v. Mahoney, 264 Mont. 89, 870 P.2d 65


                                         11
(1994), it could have charged Knowles with assault with a weapon at the first trial, and

that its decision not to do so, as well as its decision to charge assault with a weapon

during the second trial, were decisions made squarely within its prosecutorial discretion.

See Mahoney, 264 Mont. at 96, 870 P.2d at 70 (quotation and emphasis omitted) (“When

the facts of a case support a possible charge of more than one crime, the crime to be

charged is a matter of prosecutorial discretion.”). Accordingly, the State argues that the

decision to increase the charge was an act of prosecutorial discretion and not

vindictiveness, and that Knowles’ conviction should be affirmed.

¶28   In United States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485 (1982), the United

States Supreme Court stated the rule regarding “vindictive prosecution” as follows:

              To punish a person because he has done what the law plainly allows
      h i m t o d o i s a d u e p r o c e s s v i o l a t i o n “ of the most basic sort.”
      Bordenkircher v. Hayes, 434 U.S. 357, 363. In a series of cases beginning
      with North Carolina v. Pearce and culminating in Bordenkircher v. Hayes,
      the Court has recognized this basic—and itself uncontroversial—principle.
      For while an individual certainly may be penalized for violating the law, he
      just as certainly may not be punished for exercising a protected statutory or
      constitutional right.
              The imposition of punishment is the very purpose of virtually all
      criminal proceedings. The presence of a punitive motivation, therefore,
      does not provide an adequate basis for distinguishing governmental action
      that is fully justified as a legitimate response to perceived criminal conduct
      from governmental action that is an impermissible response to noncriminal,
      protected activity. Motives are complex and difficult to prove. As a result,
      in certain cases in which action detrimental to the defendant has been taken
      after the exercise of a legal right, the Court has found it necessary to
      “presume” an improper vindictive motive. Given the severity of such a
      presumption, however—which may operate in the absence of any proof of
      an improper motive and thus may block a legitimate response to criminal
      conduct—the Court has done so only in cases in which a reasonable
      likelihood of vindictiveness exists.

Goodwin, 457 U.S. at 372-73, 102 S. Ct. at 2488 (footnote omitted).


                                          12
¶29    The Goodwin court noted that since even the “fear of vindictiveness” may

unconstitutionally deter a defendant from exercising a right to appeal or otherwise attack

his conviction, due process requires that a “defendant be freed of apprehension of such

retaliatory motivation on the part of the sentencing judge.” Goodwin, 457 U.S. at 373-74,

102 S. Ct. at 2489 (quotation omitted).        In order to assure the absence of such

vindictiveness, the court held that,

       “[Whenever] a judge imposes a more severe sentence upon a defendant
       after a new trial, the reasons for his doing so must affirmatively appear.
       Those reasons must be based upon objective information concerning
       identifiable conduct on the part of the defendant occurring after the time of
       the original sentencing proceeding. And the factual data upon which the
       increased sentence is based must be made part of the record, so that the
       constitutional legitimacy of the increased sentence may be fully reviewed
       on appeal.”

Goodwin, 457 U.S. at 374, 102 S. Ct. at 2489 (quoting Pearce, 395 U.S. at 726, 89 S. Ct.

at 2081) (alteration in original).

¶30    The Court then discussed the case of Blackledge as illustrative of this principle. In

that case a defendant in North Carolina was convicted of misdemeanor assault with a

weapon and given a six-month sentence. After his conviction, he appealed for a de novo

trial in North Carolina’s Superior Court. The prosecutor then indicted him for felony

assault with a deadly weapon with intent to kill. Blackledge, 417 U.S. at 23, 94 S. Ct. at

2100. The United States Supreme Court held that it was not constitutionally permissible

for the state to bring the increased charge against the defendant for exercising his

statutory right to appeal his conviction for a de novo trial. Blackledge, 417 U.S. at 28-29,

94 S. Ct. at 2103. The Supreme Court held that “[a] person convicted of an offense is


                                         13
entitled to pursue his statutory right to a trial de novo, without apprehension that the State

will retaliate by substituting a more serious charge for the original one, thus subjecting

him to a significantly increased potential period of incarceration.” Blackledge, 417 U.S.

at 28, 94 S. Ct. at 2102-03. The Blackledge court stated as follows:

              A prosecutor clearly has a considerable stake in discouraging
       convicted misdemeanants from appealing and thus obtaining a trial de novo
       in the Superior Court, since such an appeal will clearly require increased
       expenditures of prosecutorial resources before the defendant’s conviction
       becomes final, and may even result in a formerly convicted defendant’s
       going free. And, if the prosecutor has the means readily at hand to
       discourage such appeals—by ‘upping the ante’ through a felony indictment
       whenever a convicted misdemeanant pursues his statutory appellate
       remedy—the State can insure that only the most hardy defendants will
       brave the hazards of a de novo trial.

Blackledge, 417 U.S. at 27-28, 94 S. Ct. at 2102.

¶31    In summarizing the Blackledge case, the Goodwin court noted that “in

Blackledge . . . it did not matter that no evidence was present that the prosecutor had

acted in bad faith or with malice in seeking the felony indictment. As in Pearce, the

Court held that the likelihood of vindictiveness justified a presumption that would free

defendants of apprehension of such a retaliatory motivation on the part of the

prosecutor.” Goodwin, 457 U.S. at 376, 102 S. Ct. at 2490 (footnote omitted).

¶32    However, in the Goodwin case itself, the Supreme Court found no prosecutorial

vindictiveness. Goodwin involved several misdemeanor charges which were increased to

felony charges after Goodwin fled the court’s jurisdiction for three years, and upon

return, refused to plead to the misdemeanor charges.           Goodwin was subsequently

convicted on all felony counts. Goodwin moved to set aside his conviction on the



                                          14
grounds of prosecutorial vindictiveness. Goodwin, 457 U.S. at 371, 102 S. Ct. at 2488.

The motion was denied by the federal district court, but the Court of Appeals reversed

Goodwin’s conviction. The government appealed to the United States Supreme Court,

which rejected Goodwin’s arguments and reinstated his conviction.

¶33   In rejecting Goodwin’s argument for prosecutorial vindictiveness, the court noted

that the presumption of vindictive prosecution does not generally apply to pretrial plea

negotiations between the State and the defendant. In the case of Bordenkircher, for

instance, the court held that due process “did not prohibit a prosecutor from carrying out

a threat, made during plea negotiations, to bring additional charges against an accused

who refused to plead guilty to the offense with which he was originally charged.”

Goodwin, 457 U.S. at 377, 102 S. Ct. at 2490-91 (discussing Bordenkircher). The court

held that the “give and take” of negotiations in the pretrial context did not constitute an

attempt to punish a defendant for exercising a constitutional right, so long as the

defendant was free to accept or reject the offer made by the prosecution. Bordenkircher,

434 U.S. at 363, 98 S. Ct. at 668. As stated by the court in Goodwin,

      An initial indictment—from which the prosecutor embarks on a course of
      plea negotiation—does not necessarily define the extent of the legitimate
      interest in prosecution. For just as a prosecutor may forgo legitimate
      charges already brought in an effort to save the time and expense of trial, a
      prosecutor may file additional charges if an initial expectation that a
      defendant would plead guilty to lesser charges proves unfounded.

Goodwin, 457 U.S. at 380, 102 S. Ct. at 2492 (discussing Bordenkircher).

¶34   Elaborating upon this discussion—and critical to our decision here—the Goodwin

court then went on to hold as follows:



                                         15
              There is good reason to be cautious before adopting an inflexible
      presumption of prosecutorial vindictiveness in a pretrial setting. In the
      course of preparing a case for trial, the prosecutor may uncover additional
      information that suggests a basis for further prosecution or he simply may
      come to realize that information possessed by the State has a broader
      significance. At this stage of the proceedings, the prosecutor’s assessment
      of the proper extent of prosecution may not have crystallized. In contrast,
      once a trial begins—and certainly by the time a conviction has been
      obtained—it is much more likely that the State has discovered and assessed
      all of the information against an accused and has made a determination, on
      the basis of that information, of the extent to which he should be
      prosecuted. Thus, a change in the charging decision made after an initial
      trial is completed is much more likely to be improperly motivated than is a
      pretrial decision.

Goodwin, 457 U.S. at 381, 102 S. Ct. at 2492-93 (emphasis added).

¶35   Applying the reasoning expressed in Goodwin, we conclude that there exists the

appearance and reasonable likelihood of prosecutorial vindictiveness in this case. See

Groves, 571 F.2d at 453 (“it is the appearance of vindictiveness, rather than

vindictiveness in fact, which controls.”) (emphasis in original). After the mistrial, the

parties were not in a standard “pretrial” plea bargaining situation.      The facts and

witnesses were known, and “the State [had] discovered and assessed all of the

information against [the] accused and [had] made a determination, on the basis of that

information, of the extent to which he should be prosecuted.” Goodwin, 457 U.S. at 381,

102 S. Ct. at 2493. Knowles had exercised his right to a jury trial, which resulted in a

mistrial. Between the first and second trial, no new information was revealed concerning

either the extent of B.K.’s injuries or Knowles’ conduct. In spite of the lack of any new

evidence, the State sought to quadruple the range of punishment to be imposed on

Knowles, after he declined to plea to the original charges. Upon invitation to do so by



                                        16
the District Court, the State was unable to provide any factual rationale for the increased

charges and increased punishment, arguing only that these acts were within its discretion.

Even the District Court Judge, who described himself as a “hard sentencer,” expressed

surprise at the level of punishment sought by the State in this case. In light of the

foregoing, we are constrained to agree with Knowles that because no new factual

information was uncovered after the first trial which would justify a decision to increase

the charges, the threat of a four-fold increase in punishment has the appearance of

prosecutorial vindictiveness, and raises the reasonable likelihood that the State was

simply utilizing the increased charges in an effort to deter Knowles from exercising his

right to a second jury trial.

¶36    Although the dissent is critical of our resolution of this issue, we emphasize that

the situation at bar is fundamentally different from the “give and take” of pretrial plea

negotiations which occurs every day in our judicial system. Before a trial has actually

taken place, the State enjoys broad discretion in its charging decisions. See Smith, 280

Mont. at 165, 931 P.2d at 1276 (citing Bordenkircher) (“Confronting a defendant with the

risk of more severe punishment following the rejection of a plea bargain cannot form the

basis for a claim of prosecutorial vindictiveness. Allowing such a claim would contradict

the premises that underlie the accepted practice of plea bargaining.”).        But as the

Goodwin decision makes clear, the occurrence of a first trial on the merits of the charges

changes the calculus significantly with respect to a prosecutor’s subsequent charging

decisions.   If new evidence or information comes to light between the trials which

justifies the decision to increase the charges, a decision to “up the ante” may well be


                                        17
appropriate. However, when there is no new evidence and no new information to inform

its charging decision, a decision to increase the charges and the range of punishment in

that situation raises the reasonable likelihood of a vindictive prosecution.

¶37    Accordingly, we reverse Knowles’ conviction for assault with a weapon and

remand for a new trial on the charge of assault on a minor. In the interests of judicial

efficiency, we address the other issues raised by Knowles to provide guidance to the

District Court upon remand.

¶38    Issue Two: Did the District Court abuse its discretion when it admitted evidence
       of Cindy’s abuse of C.F.?

¶39    Knowles contends the District Court abused its discretion and committed

reversible error when it admitted evidence of Cindy’s abuse of C.F. under the Modified

Just Rule. Knowles argues that all four criteria of the Modified Just Rule must be met

under State v. Ayers, 2003 MT 114, 315 Mont. 395, 68 P.3d 768, in order for prior bad

act evidence to admitted. In this case, however, the District Court determined that

evidence in an “excessive discipline” case could be admitted pursuant to Murray, even if

the first of the Modified Just Criteria was not met. Aside from this general error in the

District Court’s reasoning, Knowles also argues that the “other acts” of Cindy’s assault of

C.F. were simply not similar to the allegations that he assaulted B.K. with a belt.

Furthermore, Knowles argues that the “other purposes” for which the evidence of

Cindy’s conduct against C.F. was admitted, such as to prove plan, motive, or intent, were

not relevant to an actual issue in controversy for the assault charge.




                                          18
¶40    Knowles also contends that evidence of Cindy’s conduct had limited probative

value, and was unduly prejudicial and confusing to the jury. By admitting photographic

evidence of the injury Cindy caused to C.F. and discussing her conduct towards the boys,

Knowles contends he was forced to overcome guilt by association and was exposed to the

likelihood that the jury would convict him because of the impression that he—along with

his wife—was a bad parent who deserved punishment. Furthermore, the evidence of

Cindy’s conduct distracted the jury from the real issue in controversy—whether Knowles

committed assault with a weapon during a specific instance in April 2008. For these

reasons, Knowles argues that the evidence of Cindy’s conduct was inflammatory, caused

him prejudice, and was not harmless error.

¶41    The State urges us to affirm. The State argues that the evidence of Cindy’s

conduct was not prohibited by M. R. Evid. 404(b), or even governed by the Modified Just

Rule, under State v. Kolb, 2009 MT 9, 349 Mont. 10, 200 P.3d 504. Specifically, the

State contends that because this evidence relates to Cindy’s conduct, and not to Knowles

himself, it is relevant and admissible.1

¶42    In the District Court, the State argued that evidence of Cindy’s conduct was

admissible as evidence of other crimes, wrongs, or acts, pursuant to the Modified Just

Rule. The State now changes its legal theory on appeal, arguing that this evidence is not

covered by M. R. Evid. 404(b) or the Modified Just Rule. We decline to consider the



1
 The State alternatively argues that the admission of this evidence constitutes harmless error
under State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d 735. Because we are reversing
Knowles’ conviction on the basis of Issue One, we need not reach this argument.


                                           19
State’s change in legal theory. See State v. Malkuch, 2007 MT 60, ¶ 17, 336 Mont. 219,

154 P.3d 558.

¶43    We conclude that the District Court abused its discretion in admitting evidence of

Cindy’s conduct towards C.F., including photographic evidence of his injuries. As an

initial matter, Knowles is correct that all four criteria of the Modified Just Rule must be

satisfied in order to admit evidence of other crimes, wrongs, or acts. In Ayers, we held

that all four criteria of the Modified Just Rule must be satisfied and explicitly overruled

any previous case law which implied the contrary. Ayers, ¶ 76. Thus, to the extent the

District Court relied on Murray, which was decided in 1986, to excuse the State from

having to prove that all four criteria of the Modified Just Rule were satisfied, this

decision was in error. Moreover, it is axiomatic that the “other acts” admissible under the

Modified Just Rule must be acts of the defendant, and not acts of a third party “except in

limited circumstances where the defendant is attempting to inculpate another person for

the crime.” Kolb, ¶ 21 (citing State v. Clifford, 2005 MT 219, ¶ 44, 328 Mont. 300, 121

P.3d 489).

¶44    We conclude that in any event, evidence of Cindy’s conduct in relation to C.F. and

B.K. was irrelevant and not probative on the assault with a weapon charge against

Knowles. The District Court stated it would allow the evidence of Cindy’s slapping C.F.

for the purpose of informing the jury how the charges eventually came to be brought

against Knowles. However, the District Court could have instructed the State to briefly

inform the jury of how the investigation was started without allowing repeated references

to Cindy’s conduct and without admitting photographic evidence of C.F.’s injuries at


                                        20
trial. See State v. Derbyshire, 2009 MT 27, ¶¶ 39-40, 349 Mont. 114, 201 P.3d 811

(stating that repeated references to defendant’s status as a probationer and involvement of

probation officers in discovering drug evidence were not necessary in order to explain

drug possession charges to the jury).       Given the potential prejudice resulting from

evidence of Cindy’s conduct and given that it had no probative value in determining

whether Knowles committed assault with a weapon, we conclude the District Court

abused its discretion in allowing the introduction of such evidence at trial.2

¶45    Issue Three: Did the District Court impair Knowles’ ability to present his
       defense and effectively cross-examine Abrahamson, by denying him access to the
       CFSD investigative file?

¶46    Knowles contends the District Court erred by denying him access to the CFSD

investigative file. He argues that he was entitled to review the file under § 46-15-322,

MCA. Knowles argues that the in camera review of this material by the District Court

impaired his ability to present his defense, and contends that the court improperly limited

its review to “smoking guns.” Knowles contends that had he been allowed to review the

file, then the lack of notes regarding the April 30, 2008 conversation would have been

fertile ground for cross-examining and impeaching Abrahamson, especially since he

implied during his testimony that he did have notes of their conversation when, in fact,

such notes did not exist. Knowles further argues that the file was essential to establishing

Abrahamson’s lack of credibility, asserting that Abrahamson testified at Cindy’s trial that


2
  We acknowledge that the range of admissible evidence relative to an assault on a minor charge
may well be different than that admissible in an assault with a weapon case. However, we can
conceive of no reason why photographic evidence of C.F.’s injuries should be admitted upon
retrial.


                                          21
Knowles told him of the disciplining incident during the April 30 phone conversation, but

testified to the contrary at Knowles’ second trial. Knowles therefore contends he was

stripped of his ability to properly question Abrahamson without access to the CFSD

investigative file and that his conviction should be reversed by virtue of this error.

¶47      The State argues the District Court did not err in the manner in which it handled

Knowles’ discovery request. The State contends it did not deny Knowles’ request for the

file. It argues that since the information in the CFSD file is confidential pursuant to State

v. Little, 260 Mont. 460, 861 P.2d 154 (1993), and § 41-3-205, MCA, the District Court

was required to conduct an in camera review and simply could not release the file to

Knowles. The State further argues that Knowles overstates the role that the absence of

Abrahamson’s notes played in the trial in light of Abrahamson’s actual testimony. In this

connection, the State argues that Abrahamson never unequivocally testified that he took

notes of the phone conversation, but instead testified that notes would be in the file if he

had taken them. The State also contends that Knowles never directly asked Abrahamson

if he did or did not take notes during their phone conversation. Thus, the State argues

that the absence of notes in the CFSD file would not have had any great significance at

trial.

¶48      Section 46-15-322(4), MCA, requires the State to disclose “material and

information in the possession or control of members of the prosecutor’s staff and of any

other persons who have participated in the investigation or evaluation of the case.” At

the same time, the information contained in a CFSD investigative file in abuse and

neglect cases is deemed confidential under § 41-3-205(1), MCA. However, subsection


                                          22
(2) of this statute provides that “[r]ecords may be disclosed to a court for in camera

inspection if relevant to an issue before it. The court may permit public disclosure if it

finds disclosure to be necessary for the fair resolution of an issue before it.” Section

41-3-205(2), MCA.

¶49    A defendant in a criminal trial has a constitutional right to a meaningful

opportunity to present a complete defense. State v. Glick, 2009 MT 44, ¶ 29, 349 Mont.

277, 203 P.3d 796. The State has an affirmative duty to disclose evidence to a defendant

under Montana law. As we stated in State v. Stewart, 2000 MT 379, 303 Mont. 507, 16

P.3d 391, “Montana’s statutory requirements do not hinge on whether the evidence is

exculpatory or inculpatory. The plain language of § 46-15-327, MCA, simply mandates

that the State disclose all additional information or material within the State’s

possession.” Stewart, ¶ 23.

¶50    In the present case, Knowles’ complaint with the District Court’s handling of the

CFSD investigative file focuses on the absence of notes from Abrahamson’s April 30,

2008 phone conversation with Knowles. Knowles claims that Abrahamson bolstered his

own credibility by implying that he took notes of this conversation. He complains that if

he had been granted access to the CFSD investigative file prior to trial, he would have

known in advance that Abrahamson did not take any notes of the April 30 conversation,

and he would have been able to impeach any testimony from Abrahamson to the

contrary, whether made implicitly in the current trial or directly during Cindy’s trial.

¶51    We fail to see how the lack of such evidence, even if it permitted impeachment of

Abrahamson and bolstered the testimony of Knowles, would have impacted Knowles’


                                          23
ability to present a defense in this case. Knowles knew prior to the second trial that

Abrahamson claimed to have taken some notes of their conversation during Cindy’s trial.

Thus, Knowles could have requested that Abrahamson specifically produce the notes, or

be prohibited from referring to them at trial. Knowles never made such a request.

Moreover, it bears repeating that the only real disputed fact at trial was whether Knowles

inflicted bodily injury on B.K. prior to leaving on his trip. Even if it were established that

Knowles told Abrahamson he had punished B.K. prior to leaving on his trip, it is unclear

how such evidence would have any impact on the disputed material elements of the

assault with a weapon charge.

¶52    We acknowledge that Knowles raises an important issue regarding the right of a

defendant to present a complete defense in those cases where the contents of a CFSD

investigative file are arguably important to the defendant’s ability to present his defense.

There may be cases in which restricted access to the CFSD file could infringe upon a

defendant’s right to present a complete defense or where an in camera review by the

district court would be insufficient.     Thus, we decline to categorically endorse the

“smoking gun” approach used by the District Court as correct in all circumstances,

because we cannot predict how critical the contents of a CFSD investigative file might be

in other cases. In this specific case, however, we conclude that the District Court’s

approach was appropriate and that Knowles’ ability to present his defense was not

impaired.

                                      CONCLUSION




                                          24
¶53   We reverse and remand Knowles’ conviction on the basis of prosecutorial

vindictiveness. Furthermore, we hold that the admission of photographic evidence of

C.F.’s injuries, as well as other evidence of Cindy’s prior bad acts, constituted an abuse

of discretion. Finally, we hold that the District Court did not abuse its discretion in

conducting an in camera review of the CFSD investigative file, and refusing to disclose

the contents of the entire file to Knowles. Reversed and remanded for a new trial on the

charge of assault on a minor.


                                                       /S/ PATRICIA COTTER


We concur:

/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




Justice James C. Nelson, specially concurring.

¶54   I join the Court’s Opinion on Issues One and Three. With respect to Issue Two, I

concur in the Court’s decision but write separately to explain my views on that issue.

¶55   The Court holds that all four criteria of the Modified Just Rule must be satisfied in

order to admit evidence of other crimes, wrongs, or acts. Opinion, ¶ 43. This is a correct

statement of the law as it presently stands. See State v. Ayers, 2003 MT 114, ¶ 76, 315

Mont. 395, 68 P.3d 768. However, I have recently concluded that the Modified Just Rule

does not accurately reflect or implement the narrow purpose of M. R. Evid. 404(b), but

rather impedes the legitimate use of uncharged misconduct evidence and, moreover, has


                                        25
generated a great deal of confusion and misconceptions in this area of law. See State v.

Stout, 2010 MT 137, ¶¶ 75, 79, 93-102, 356 Mont. 468, ___ P.3d ___ (Nelson, J.,

dissenting). Among other things, I proposed in Stout that we should jettison the first two

substantive requirements of the Modified Just Rule (similarity and nearness in time), see

Stout, ¶ 102, since these two criteria do not apply to every nonpropensity purpose for

which uncharged misconduct evidence might be offered, see e.g. Stout, ¶ 99 (noting that a

dissimilar crime (e.g., a carjacking) might be admissible to show the defendant’s overall

plan to use the car in the charged offense (e.g., a kidnapping), which in turn shows that he

is the perpetrator of that offense and had the requisite mens rea). I still maintain that, in

the proper case, we should revise the Modified Just Rule so that it conforms to the actual

purpose and scope of Rule 404(b).

¶56    For the reasons stated in ¶ 44 of the Court’s Opinion, however, it is not necessary

to reexamine the Modified Just Rule in the present case. Accordingly, with the foregoing

caveat, I concur in the Court’s decision on Issue Two.



                                                         /S/ JAMES C. NELSON



Chief Justice Mike McGrath, concurring in part and dissenting in part.


¶57    I concur with the Court’s ruling on Issue three and with the result on Issue two. I

dissent on Issue one.




                                         26
¶58    The admission of the photograph depicting an injury caused to one of the boys by

the defendant’s wife was reversible error. It was not admissible under M. R. Evid. 402 as

it was not relevant to the determination of the crime charged. Even had the photograph

been relevant, it should have been excluded as prejudicial and misleading pursuant to M.

R. Evid. 403. Nor do the provisions of M. R. Evid. 404(b) allow for the photograph’s

admission under the facts of this case.

¶59    However, I dissent on whether the prosecutor’s offer to allow the defendant to

plead guilty to one felony before amending the charge to a different felony with a greater

penalty was vindictive behavior under the law.       Prosecutors in Montana have wide

discretion to determine the offense charged as long as the facts alleged support the

charge. State v. Mahoney, 264 Mont. 89, 96, 870 P.2d 65, 70 (1994) (quoting State v.

Booke, 178 Mont. 225, 230, 583 P.2d 405, 408 (1978) (“When the facts of a case support

a possible charge of more than one crime, the crime to be charged is a matter of

prosecutorial discretion.”)). A prosecutor may move the court to amend an information

in matters of substance at any time up to five days before trial. Section 46-11-205(1),

MCA.

¶60    This Court has squarely addressed the issue of vindictive prosecution before:

       Confronting a defendant with the risk of more severe punishment following
       the rejection of a plea bargain cannot form the basis for a claim of
       prosecutorial vindictiveness. Bordenkircher v. Hayes (1978), 434 U.S. 357,
       98 S.Ct. 663, 54 L.Ed.2d 604. Allowing such a claim would contradict the
       premises that underlie the accepted practice of plea bargaining.

State v. Smith, 280 Mont. 158, 165, 931 P.2d 1272, 1276 (1996).




                                          27
¶61    Indeed, the facts here present nothing more vindictive than the “accepted practice

of plea bargaining.” Regrettably, the majority opinion’s creation of a presumption of

vindictive prosecution under these facts undermines the plea bargaining process.

Moreover, the majority misinterprets U.S. Supreme Court decisions in order to apply this

presumption. The U.S. Supreme Court upheld the constitutionality of plea bargaining in

Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663 (1978). The Court applied a

presumption of vindictive prosecution to hold that the State denied a defendant due

process by charging him with a felony after he appealed and obtained a trial de novo of a

misdemeanor conviction for the same conduct. Blackledge v. Perry, 417 U.S. 21, 27-29,

94 S. Ct. 2098, 2102-03 (1974). However, the Court declined to apply a presumption of

prosecutorial vindictiveness to pretrial plea negotiations that resulted in increasing

misdemeanor charges to felony charges when the defendant refused to plead. U.S. v.

Goodwin, 457 U.S. 368, 381-84, 102 S. Ct. 2485, 2492-94 (1982).

¶62    The key factual difference that accounts for the U.S. Supreme Court applying a

presumption of vindictive prosecution is the existence of a conviction for the original

charges. Knowles first felony trial resulted in a mistrial. Shortly thereafter, the State

charged Knowles with felony assault with a weapon on December 22, 2008. He was

convicted after a trial held June 15-17, 2009. This timing comports with § 46-11-205(1),

MCA, and falls within the bounds of prosecutorial discretion.          Unlike Blackledge,

Knowles did not appeal from a conviction. Like Goodwin, the charges against Knowles

were increased during pretrial negotiations, well before he was convicted. To hold that a

presumption of vindictive prosecution applies to these facts is an overreaction that creates


                                         28
an unworkable precedent. Our precedent does not require such a presumption and the

Court’s holding will only undermine principles of judicial economy promoted by plea

negotiations.

¶63    I would not apply a presumption of vindictive prosecution, and therefore dissent

from the Court’s holding.



                                              /S/ MIKE McGRATH




                                       29
