                                                                                             October 8 2014


                                          DA 13-0385

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 273



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JASON DEAN FRANKS,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DC 11-169 (C)
                        Honorable Stewart E. Stadler, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Robin A. Meguire, Meguirelaw.com, Great Falls, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General, Helena, Montana

                        Ed Corrigan, Flathead County Attorney, Travis Ahner, Deputy County
                        Attorney, Kalispell, Montana



                                                    Submitted on Briefs: June 11, 2014
                                                               Decided: October 8, 2014


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1    Jason Dean Franks appeals from his conviction of felony sexual intercourse

without consent in the Eleventh Judicial District Court, Flathead County. We reverse and

remand for a new trial.

¶2    On appeal, we address whether the District Court abused its discretion when it

denied Franks’s motion for a new trial.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3    On December 28, 2010, fifteen-year-old C.L. told her father that his former

roommate, Jason Franks, had raped her when she was eleven years old. The next day,

C.L. and her father went to the Kalispell Police Department to report the allegation.

During a forensic interview on January 11, 2011, C.L. told Detective Michelle O’Neil

that she decided to come forward after four years because of a newspaper article

reporting Franks had been accused of molesting a five-year-old boy.           The article,

published December 3, 2010, was accompanied by a photograph of Franks, which C.L.

recognized. C.L. told Detective O’Neil she wanted to help in that case if she could.

¶4    On May 16, 2011, Franks was charged with sexual intercourse without consent

and sexual assault. Before trial, Franks moved to exclude any mention of the charges in

Cause No. DC-10-444(B), the case reported in the newspaper, as more prejudicial than

probative under M. R. Evid. 403 and improper character evidence under M. R. Evid.

404(b). Franks pointed out he was acquitted of those charges. The State responded it

intended to offer testimony explaining that C.L.’s delayed disclosure was prompted by

the newspaper article. The State explained it also intended to offer expert testimony


                                            2
about disclosure patterns in child sexual abuse cases, and this expert testimony, combined

with testimony about the newspaper article, would help the jury understand why C.L.

disclosed when she did. The District Court held a hearing on the motion and concluded

the testimony was not offered as evidence of Franks’s character, but rather to explain

C.L.’s disclosure, and therefore was admissible. The District Court said Franks could

offer evidence he was acquitted of the charges in order to counteract any unfair prejudice.

¶5     After multiple continuances, trial began November 5, 2012. The prosecutor made

the following reference to the newspaper article during his opening statement:

              You’ll hear from [C.L.], who will state that the reason that she
       disclosed, finally and fully came forth, was because Jason Franks was in the
       newspaper. There was an article, and he was accused of raping a little boy,
       age four or five. And [C.L.] saw the newspaper article, which had a picture
       of Jason Franks, and it brought everything back home. She recognized
       him, down to the scar on his face, and suddenly she thought, “I’ve got to
       come forward to see if I can have an impact in that case.”

¶6     C.L. testified that before seeing the newspaper article, she had disclosed the

incident to her best friend, D.B.; another close friend, A.A.; her boyfriend, R.A.; and

D.B.’s father. She testified that after a discussion with D.B.’s father, she started to think

about telling her own father. C.L. was asked whether a newspaper article also helped her

come forward. She responded, “I wouldn’t say it helped me come forward. It gave me a

bigger visual of everything, that I wasn’t the only one.” C.L. testified she could not

remember whether she saw the newspaper article before talking to her dad, but “it was

close in the time frame.” She later testified she told Detective O’Neil that after seeing the

newspaper article, “I knew that there was . . . another person that had had the same thing

done to them that was done to me . . . .” She testified she told Detective O’Neil she


                                             3
wanted to help in that case. Detective O’Neil also testified that C.L. brought up the

newspaper article during the forensic interview, and said her reason for coming forward

at that time was to help in that case.

¶7        Franks then testified in his defense and denied the allegations. He testified that his

picture had been in the newspaper because he had been charged with sexually assaulting

his girlfriend’s son. He testified that he had been tried and found not guilty of those

charges by a jury. On cross-examination, the prosecutor asked Franks whether he heard

his attorney state, during jury selection, “that not guilty doesn’t mean innocent.”

¶8        Prior to closing argument, the jury was instructed that evidence about the

newspaper article was admitted only to show why C.L. decided to disclose the incident,

and could not be used for any other purpose. During closing argument, the prosecutor

stated:

          Boy, is [C.L.] lucky that a guy named Jason Franks, who happened to be
          her dad’s roommate, is in the paper, accused of molesting a little boy.
          What are the odds?

                 What are the odds that the fall guy that she just happened to list,
          named Jason, my dad’s roommate, shows up in the paper? Is he an easy
          target because of the paper, or is he the target because he did this?

¶9        Franks was convicted of both sexual intercourse without consent and sexual

assault. He moved for a new trial and acquittal. He claimed the testimony at trial failed

to bear out the prosecution’s theory that the newspaper article had prompted C.L.’s

disclosure, because her testimony revealed she had already told friends about the incident

before seeing the newspaper article. He claimed the unfair prejudice caused by testimony

about the newspaper article far outweighed its probative value. He also argued that the


                                                4
conviction was not supported by sufficient evidence, and that his conviction of both

sexual intercourse without consent and sexual assault violated due process and subjected

him to double jeopardy.

¶10   By stipulation, the District Court vacated the sexual assault conviction.      The

District Court denied the motion with respect to the remaining issues. The District Court

reasoned that despite some conflicts in the testimony, there was evidence showing the

newspaper article motivated C.L’s disclosure. The District Court also said the jury

instruction and evidence of Franks’s acquittal on the prior charges served to counteract

any possible prejudice. The District Court stated that testimony about the newspaper

article did not deny Franks a fair and impartial trial. The District Court also concluded

there was sufficient evidence supporting the conviction. Franks was sentenced to fifty

years in the Montana State Prison, with ten years suspended.

                              STANDARD OF REVIEW

¶11   A district court’s denial of a motion for a new trial is reviewed for abuse of

discretion. State v. Brummer, 1998 MT 11, ¶ 49, 287 Mont. 168, 953 P.2d 250. A

district court abuses its discretion when it acts arbitrarily, without conscientious

judgment, or exceeds the bounds of reason. State v. Hernandez, 2009 MT 341, ¶ 7, 353

Mont. 111, 220 P.3d 25.




                                           5
                                       DISCUSSION

¶12 Whether the District Court abused its discretion when it denied Franks’s motion
for a new trial.

¶13    Following a verdict of guilty, a district court may order a new trial “if required in

the interest of justice.” Section 46-16-702, MCA. The court may order a new trial either

on motion of the defendant or of its own accord, pursuant to its inherent powers.

Brummer, ¶ 35. Franks moved for a new trial on the grounds that evidence of prior

charges of child molestation should have been excluded under M. R. Evid. 404(b) and

was more prejudicial than probative under M. R. Evid. 403. He claimed these errors

denied him the right to a fair and impartial trial.

¶14    As a general rule, character evidence is not admissible to prove conduct.

M. R. Evid. 404; State v. Dist. Ct. of the Eighteenth Judicial Dist., 2010 MT 263, ¶ 47,

358 Mont. 325, 246 P.3d 415. Evidence of other crimes, wrongs, or acts may not be

admitted to prove a person’s character in order to show that he or she acted in conformity

with that character on a particular occasion. M. R. Evid. 404(b); State v. Stewart, 2012

MT 317, ¶ 61, 367 Mont. 503, 291 P.3d 1187. The evidence may, however, be used for

“other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” M. R. Evid. 404(b). Rather than

prohibiting the admission of evidence, M. R. Evid. 404(b) prohibits a theory of

admissibility.   Eighteenth Judicial Dist., ¶ 47.     Evidence of prior bad acts is not

admissible if it is offered for a purpose that requires “the inference from bad act to bad

person to guilty person,” Eighteenth Judicial Dist.,¶ 47, but may be admissible if it



                                               6
“‘proves a material issue without requiring any inference to the defendant’s criminal

disposition,’” Stewart, ¶ 61 (quoting 22A Charles Alan Wright & Kenneth W. Graham,

Jr., Federal Practice and Procedure: Evidence § 5239, 260 (Supp. 2012)).

¶15    Even if evidence of other crimes, wrongs, or acts is offered for a valid

non-propensity purpose, M. R. Evid. 404(b) may require its exclusion if “the nature of the

evidence might tempt the jury to decide the case against the defendant on an improper

propensity basis.” Stewart, ¶ 62. Evidence of other crimes, wrongs, or acts may unduly

prejudice the jury against the defendant, regardless of the purpose for which the evidence

is nominally admitted. See State v. Sage, 2010 MT 156, ¶ 36, 357 Mont. 99, 235 P.3d

1284. In this way, M. R. Evid. 404(b) must be viewed in concert with M. R. Evid. 403,

which allows the exclusion of relevant evidence if its probative value is substantially

outweighed by the danger of unfair prejudice. Evidence that is offered for a valid

purpose under M. R. Evid. 404(b) is still subject to the balancing test prescribed by

M. R. Evid. 403. Stewart, ¶ 67.

¶16    Unfair prejudice may arise from evidence that arouses the jury’s hostility or

sympathy for one side, confuses or misleads the trier of fact, or unduly distracts the jury

from the main issues. State v. Bieber, 2007 MT 262, ¶ 59, 339 Mont. 309, 170 P.3d 444.

Where the probative value of evidence is substantially outweighed by its unfair prejudice,

admission of the evidence may be reversible error. State v. Pendergrass, 179 Mont. 106,

112-13, 586 P.2d 691, 694-95 (1978).        In certain circumstances, the nature of the

prejudicial material introduced may so severely undermine the fairness of the trial that a

new trial is the only remedy. Havens v. State, 285 Mont. 195, 200-01, 945 P.2d 941, 944


                                            7
(1997) (ordering new trial in civil case pursuant to § 25-11-102, MCA, and M. R. Civ. P.

59(a)).

¶17       In its ruling on Franks’s motion in limine, the District Court found testimony

about the newspaper article relevant because it explained C.L.’s reason for disclosing the

incident after four years. The evidence would be offered for a purpose other than to show

Franks’s character, and thus M. R. Evid. 404(b) did not require its exclusion. The

“highly inflammatory” nature of child molestation evidence, however, required the

District Court and the State to tread with caution. State v. Van Kirk, 2001 MT 184, ¶ 46,

306 Mont. 215, 32 P.3d 735; see also United States v. Ham, 998 F.2d 1247, 1252 (4th

Cir. 1993) (“Indeed, no evidence could be more inflammatory or more prejudicial than

allegations of child molestation.”).

¶18       As the District Court noted in its ruling on Franks’s motion for a new trial, the

testimony regarding the timing of and reasons for C.L.’s disclosure was, in some

respects, contradictory. Nevertheless, there was testimony supporting the State’s theory

of admissibility. C.L. testified that she told Detective O’Neil she wanted to help in the

prosecution of the case reported in the newspaper. Detective O’Neil testified that C.L.

said, during the forensic interview, that the other case was her reason for coming forward.

Testimony also established that C.L. disclosed the incident to her father on December 28,

more than three weeks after the article was published on December 3. The testimony

presented at trial did in fact help to explain why C.L. disclosed the abuse to her father and

to police in December 2010.




                                              8
¶19    It is apparent, however, that the State did not limit its use of the testimony to

explaining the timing of C.L.’s disclosure. In his opening statement, the prosecutor

stated Franks was “accused of raping a little boy.” After Franks testified he had been

acquitted of those charges, the prosecutor asked if he heard his attorney state “that not

guilty doesn’t mean innocent.” This question implied to the jury that, rather than being

innocent until proven guilty, Franks was a serial child molester who had simply gotten

away with it. The prosecutor later commented on “the odds” of Franks showing up in the

newspaper, “accused of molesting a little boy.”        This comment strengthened the

implication that Franks was a child molester and therefore more likely to have assaulted

C.L.

¶20    The State’s use of the evidence aroused the jury’s hostility toward Franks,

resulting in unfair prejudice. See Bieber, ¶ 59. The District Court’s instruction to the

jury that they were not to consider testimony about the newspaper article for any purpose

other than to explain C.L.’s disclosure was not sufficient to protect the defendant from

undue prejudice in the face of the State’s repeated insinuations.      See Sage, ¶ 42.

Similarly, the value of allowing Franks to testify that he was acquitted of the prior

charges was negated by the State’s cross-examination, which showed frank disregard for

the right of a criminal defendant to be presumed innocent until proven guilty.

Section 46-16-204, MCA.

¶21    Based on the information and arguments presented to the District Court at the

motion in limine stage, and given the overwhelmingly prejudicial nature of child

molestation evidence, the wiser course would have been to withhold ruling on its


                                           9
admissibility. The issue could have been revisited in the event that the delayed disclosure

became an issue for C.L.’s credibility.

¶22    When ruling on Franks’s motion for a new trial, however, the District Court had

the full benefit of hindsight, and knew exactly the manner in which the State had

manipulated the District Court’s attempted safeguards and used the evidence to create the

impression that Franks was a habitual abuser of children. Clearly, the probative value of

this evidence was outweighed by the danger of unfair prejudice and should have been

excluded under M. R. Evid. 403. See Pendergrass, 179 Mont. at 112-13, 586 P.2d at

694-95.   To hold that introduction of the evidence did not deny Franks a fair and

impartial trial was an abuse of discretion. See Havens, 285 Mont. at 200-01, 945 P.2d at

944 (“[I]n the context of a motion for a new trial, the court should have reconsidered its

prior ruling . . . .”). Therefore, we reverse and remand for a new trial.

¶23    Because we have already determined Franks’s conviction must be reversed, we

need not address the remaining issues raised in his appeal.

¶24    Reversed and remanded for further proceedings consistent with this Opinion.


                                                  /S/ MIKE McGRATH

We Concur:

/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA




                                             10
Justice Laurie McKinnon, specially concurring.

¶25   Although I concur in the Court’s decision, I do not agree with all that is said in our

Opinion. The Court decides this case, and reverses Franks’s conviction, based on the

District Court’s post-trial ruling denying Franks’s motion for a new trial. In so doing,

however, the Court offers several statements relating to the District Court’s pre-trial

rulings on Franks’s motions in limine. I believe these statements are inconsistent with

the Court’s ultimate disposition of the case and that they consequently undermine the

Court’s analysis. I am thus compelled to note my disagreement with them.

¶26   First, the Court opines that “the wiser course” would have been for the District

Court “to withhold ruling” on the admissibility of the newspaper article. Opinion, ¶ 21. I

disagree. “A motion in limine is a request for guidance by the court regarding an

evidentiary question, which the court may provide at its discretion to aid the parties in

formulating trial strategy.” Hunt v. K-Mart Corp., 1999 MT 125, ¶ 11, 294 Mont. 444,

981 P.2d 275. For example, in State v. Crider, 2014 MT 139, 375 Mont. 187, 328 P.3d

612, we observed that Crider had sought through a motion in limine to exclude evidence

of his prior bad acts. When his motion was unsuccessful, he adjusted his trial strategy

accordingly and instead challenged the State’s use of that evidence. Crider, ¶ 40.

¶27   A similar process unfolded in the present case. Franks sought through a motion in

limine to prohibit the State from introducing evidence of the 2010 newspaper article

reporting that he had been charged with molesting a five-year-old boy in DC 10-444(B).

When that motion was unsuccessful, Franks made the tactical choice to confront the

evidence directly. Franks and the prosecution were entitled to a ruling on his motion in


                                            11
limine so that they could formulate their respective trial strategies. Indeed, both Franks

and the prosecution addressed the newspaper article in their respective opening

statements, offering differing views of what the article would ultimately show regarding

C.L.’s disclosure. I do not subscribe to the Court’s view that the District Court should

have left the parties hanging, thereby engendering uncertainty and potential confusion as

to how the case should proceed.

¶28    We have repeatedly approved, and even encouraged, the use of motions in limine,

recognizing that such motions serve “valid and useful” purposes and even have “special

advantages” in the trial process. State v. Ingraham, 1998 MT 156, ¶ 36, 290 Mont. 18,

966 P.2d 103; Crider, ¶ 19; State v. Ankeny, 2010 MT 224, ¶ 36, 358 Mont. 32, 243 P.3d

391; see also 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and

Procedure § 5037.10, 760-64 (2d ed. 2005) (listing some of the advantages of a motion in

limine). Certainly, there may be situations where the relevance and admissibility of

evidence will depend on developments at trial, in which case it will be necessary to delay

ruling on the motion in limine or to revisit a prior ruling. Here, however, the prosecution

intended to present the jury with a story that included testimony about the newspaper

article in order to explain the timing of and reasons for C.L.’s disclosure. Franks and the

prosecutors needed to know at the outset whether the District Court would allow this

story to be told, so that they could adjust their trial strategies accordingly. I cannot agree

that withholding a ruling would have been “the wiser course.”

¶29    Second, the Court states that the issue of allowing testimony about the article

“could have been revisited in the event that the delayed disclosure became an issue for


                                             12
C.L.’s credibility.” Opinion, ¶ 21. The implications of this statement are that the delayed

disclosure was not already an issue for C.L.’s credibility and that the defense first had to

challenge C.L.’s credibility based on the timing of her disclosure before the prosecution

could present any testimony about the article. I disagree on both counts.

¶30    “Relevant evidence” is defined in M. R. Evid. 401 and includes “evidence bearing

upon the credibility of a witness.” Thus, since evidence of the delayed disclosure bore

upon C.L.’s credibility, the evidence was relevant from the outset and its admission was

not dependent on an impeachment theory of admissibility as the Court suggests. This

was a “he said/she said” case. Franks had denied C.L.’s accusations, and the State’s

proof hinged largely on whether the jury believed C.L. C.L., however, had waited four

years to report Franks’s alleged sexual misconduct. In evaluating C.L.’s testimony, the

jurors naturally would wonder why she had delayed so long in disclosing the incident.

Consequently, the delay in her disclosure was necessarily at issue. In this regard, C.L.

had brought up the newspaper article in her interview with Kalispell Police Detective

Michelle O’Neil and stated that it was part of the impetus behind her disclosure. Upon

seeing the article, she realized she was not the only victim, and she indicated to O’Neil

that she wanted to help with the other victim’s case. Before trial, the State gave notice

that it intended to call Dr. Wendy Dutton, an expert in child sexual assault cases, to assist

the jury in understanding the dynamics of child sexual abuse. Dr. Dutton would testify

that there are many reasons why children disclose sexual abuse, and one of the reasons is

to help or protect others. Omitting this portion of C.L.’s story would have impeded the

jurors’ evaluation of her credibility and the truthfulness of her disclosure. Cf. United


                                             13
States v. Green, 617 F.3d 233, 250 (3d Cir. 2010) (evidence of the defendant’s prior bad

acts could be introduced to establish the government informant’s reason for cooperating

with the FBI, and thereby “improve her credibility with the jury”). Accordingly, the

delayed disclosure was relevant from the outset. M. R. Evid. 401.

¶31   Additionally, the prosecution’s need for narrative integrity is a second reason why

testimony about the article was potentially admissible at the outset. The circumstances

surrounding C.L.’s disclosure—including the article—were an integral part of the story

the prosecution sought to present to the jury. Indeed, as noted, jurors naturally would

wonder about the four-year delay between the alleged offense and C.L.’s disclosure of it.

Franks was not entitled to tie the prosecution’s hands and force the prosecution to omit

significant pieces of C.L.’s story simply by deciding in advance not to make an issue of

the delayed disclosure at trial. “[A] criminal defendant may not stipulate or admit his

way out of the full evidentiary force of the case as the Government chooses to present it.”

Old Chief v. United States, 519 U.S. 172, 186-87, 117 S. Ct. 644, 653 (1997). The “need

for evidentiary richness and narrative integrity in presenting a case” may increase the

probative value of uncharged misconduct evidence and support its admissibility. Old

Chief, 519 U.S. at 183, 117 S. Ct. at 651. Narrative integrity “is often essential to the

capacity of jurors to satisfy the obligations that the law places on them.” Old Chief, 519

U.S. at 187, 117 S. Ct. at 653.      “People who hear a story interrupted by gaps of

abstraction may be puzzled at the missing chapters, and jurors asked to rest a momentous

decision on the story’s truth can feel put upon at being asked to take responsibility

knowing that more could be said than they have heard.” Old Chief, 519 U.S. at 189, 117


                                            14
S. Ct. at 654. Also, if jurors’ expectations are not satisfied, they “‘may penalize the party

who disappoints them by drawing a negative inference against that party.’” Old Chief,

519 U.S. at 188, 117 S. Ct. at 654 (quoting Stephen A. Saltzburg, A Special Aspect of

Relevance: Countering Negative Inferences Associated with the Absence of Evidence, 66

Cal. L. Rev. 1011, 1019 (1978)).           Of course, “[n]ot every story needs lurid

embellishment,” and courts must be careful not to “stretch the ‘complete-the-story’ logic

too far.” 1 Kenneth S. Broun et al., McCormick on Evidence § 190, 1053 (7th ed. 2013).

But if “the incomplete story that the defendant would prefer leaves a gap that would

frustrate ‘the jurors’ expectations about what proper proof should be,’” McCormick on

Evidence, supra, at 1054 (quoting Old Chief, 519 U.S. at 188, 117 S. Ct. at 654), then

there is a valid basis for admitting the evidence—subject to balancing of unfair prejudice

against probative value under Rule 403.

¶32    Here, failing to explain the delay in C.L.’s disclosure—even if the defense had not

yet made an issue of it—would have left a conspicuous hole in C.L.’s story and the

prosecution’s evidence, thus frustrating “the jurors’ expectations about what proper proof

should be.” Old Chief, 519 U.S. at 188, 117 S. Ct. at 654. This is particularly apparent

given Dr. Dutton’s testimony that one reason children disclose sexual abuse is because

they learn that another victim has come forward. The significance of this testimony

would have been lost on the jury without C.L.’s testimony about the article. The article

and Dr. Dutton’s testimony were designed to help the jury understand the prosecution’s

case and evaluate C.L.’s credibility. Contrary to the Court’s statement, Opinion, ¶ 21, it

was not a necessary prerequisite that the defense first make the delayed disclosure an


                                             15
issue for C.L.’s credibility. The need for narrative integrity was a valid, independent

basis for admitting testimony about the article—subject, as noted, to Rule 403 balancing.

¶33    This leads to my final point. In discussing the District Court’s ruling on Franks’s

motion for a new trial, the Court observes that “the District Court had the full benefit of

hindsight, and knew exactly the manner in which the State had manipulated the District

Court’s attempted safeguards and used the [article] to create the impression that Franks

was a habitual abuser of children.” Opinion, ¶ 22. The Court then opines that “the

probative value of this evidence was outweighed by the danger of unfair prejudice and

should have been excluded under M. R. Evid. 403.” Opinion, ¶ 22. The Court cites

Havens v. State, 285 Mont. 195, 200-01, 945 P.2d 941, 944 (1997), for the proposition

that, in the context of a motion for a new trial, a district court may need to reconsider an

earlier evidentiary ruling. Opinion, ¶ 22. Although I do not dispute this principle, I

believe it is necessary to be clear that the circumstance necessitating a retrial in this case

arose not from an error in the District Court’s initial rulings on Franks’s motions in

limine but, rather, from the prosecution’s ultimate misuse of the newspaper article during

trial for purposes that the District Court had expressly forbidden.

¶34    Havens illustrates this point. The case involved a lawsuit against the State for

failing to install a stoplight at a busy intersection where Havens was injured. Havens

filed a motion in limine to exclude evidence of his alcohol consumption on the date of the

accident, arguing that this evidence was irrelevant. The State responded that it would

produce testimony linking Havens’s alcohol consumption as a contributory factor in the

accident. On this basis, the district court denied Havens’s motion. Despite the State’s


                                             16
assurance, however, no evidence was produced at trial establishing a connection between

Havens’s alcohol consumption and the cause of the accident. Thus, Havens moved for a

new trial, which was denied. Havens, 285 Mont. at 197-98, 945 P.2d at 942-43.

¶35    On appeal, we reversed and remanded for a new trial. We held that the district

court “did not err when it initially denied Havens’ motion in limine based upon the

State’s assurance that the testimony to be presented at trial would link Havens’ alcohol

consumption to the question of causation.” Havens, 285 Mont. at 201, 945 P.2d at 944.

We held that the district court erred, rather, after trial when it failed to attribute proper

significance to the fact that the State had not presented such testimony. We explained:

       [A]fter the verdict, when Havens renewed his contention in the context of a
       motion for a new trial, the court should have reconsidered its prior ruling in
       light of the State’s failure to fulfill its promise to elicit testimony
       establishing Havens’ alcohol consumption as a factor in causing the
       collision. Havens persistently contended before, during and after the trial
       that the evidence was not relevant and that it would and did cause prejudice
       materially affecting his right to a fair trial.

Havens, 285 Mont. at 201, 945 P.2d at 944. We held that, under these circumstances, the

district court abused its discretion in denying the motion for a new trial.

¶36    The same principle applies here. In advance of trial, the prosecution gave notice

that it intended to introduce evidence of four prior bad acts by Franks: testimony about a

1989 sexual offense involving a 17-year-old girl; testimony about a 1992 sexual offense

involving a 12-year-old girl; testimony about a newspaper article reporting on a 2010

charge of sexual misconduct involving a 5-year-old boy (of which Franks was ultimately

acquitted); and a recent report by a female alleging that Franks had sexual intercourse

with her sometime in 1992, when she was 13 or 14 years old. Franks filed two motions


                                             17
in limine seeking to exclude this evidence on the ground that it is “propensity character

evidence” and not relevant to the charges involving C.L.

¶37    The District Court agreed with Franks as to the 1989 and 1992 incidents,

concluding that the State had “failed to identify a theory of logical relevance which

would permit admission of the evidence.” The court observed that the State essentially

was “seeking to prove that Defendant has the character for being sexually interested in

young girls and that he acted in conformity with that character regarding C.L.,” which “is

the sort of impermissible propensity inference not allowed pursuant to Rule 404(b).”

With respect to the 2010 article, however, the District Court concluded that the State’s

theory was valid and that any prejudice to Franks could be mitigated:

              The evidence regarding the 2010 newspaper article is not offered to
       prove that Franks has the character to engage in sexual assault and for the
       jury to infer that he acted in conformance with that character by assaulting
       C.L. Why and when C.L. disclosed are issues in this case and the evidence
       is probative of C.L.’s motive in disclosing and should be admitted. As for
       any unfair prejudicial effect, Defendant can offer into evidence the fact that
       he was acquitted of the charges.

¶38    A trial court has broad discretion in determining the relevance and admissibility of

evidence. State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811; State v.

Oatman, 275 Mont. 139, 143-44, 911 P.2d 213, 216 (1996). I do not believe the District

Court abused its discretion in excluding evidence of the 1989 and 1992 incidents, while

allowing testimony about the 2010 article for the limited purpose of explaining the timing

of and reasons for C.L.’s disclosure. Rather, similar to Havens, 285 Mont. at 201, 945

P.2d at 944, the problem developed at trial when one of the prosecutors made improper

remarks that violated the letter and spirit of the District Court’s rulings.


                                              18
¶39    In his opening statement, the prosecutor told the jury: “You’ll hear from [C.L.],

who will state that the reason that she disclosed, finally and fully came forth, was because

Jason Franks was in the newspaper.” The prosecutor then indicated that “[Franks] was

accused of raping a little boy, age four or five.” As the State concedes on appeal, this

was not an accurate statement, as the article did not report that Franks had been accused

of “rape.” Furthermore, stating that Franks had been accused of “raping a little boy” was

an inflammatory accusation, State v. Rogers, 2013 MT 221, ¶ 44, 371 Mont. 239, 306

P.3d 348; State v. Van Kirk, 2001 MT 184, ¶ 46, 306 Mont. 215, 32 P.3d 735, which is

particularly apparent in light of the voir dire proceedings. Substantial time was spent

ascertaining whether the prospective jurors could fairly and impartially decide a case of

alleged sexual offenses against an 11-year-old girl. Six members of the venire admitted

they could not be impartial and thus were excused by the District Court for cause, while

others raised concerns but opined that they could remain impartial nonetheless. Given

the nature of the charges and the concerns raised in voir dire, portraying Franks as a serial

“rapist” risked provoking feelings of indignation and revulsion in the jurors.

¶40    During trial, Franks took the stand and denied C.L.’s allegations of misconduct.

On cross-examination, the prosecutor referenced Franks’s picture in the newspaper and

inquired whether his appearance in the December 2010 picture was the same as how he

looked in late 2006 and early 2007 (the period of the alleged offenses against C.L.). As a

result, on redirect examination, Franks explained that his picture had been in the paper

because he had been charged with a sexual offense involving his girlfriend’s son. He

testified that he was tried for that offense and the jury had found him not guilty. On


                                             19
recross-examination, the prosecutor attempted to impeach this testimony by pointing out

to Franks that “not guilty doesn’t mean innocent”—the obvious innuendo being that

Franks sexually assaulted his girlfriend’s five-year-old son and got away with it. This

insinuation was improper on several grounds.

¶41    First, in weighing probative value against the danger of unfair prejudice, the

District Court reasoned that Franks could introduce the fact of his acquittal to mitigate

any prejudice resulting from testimony about the article. This was integral to the District

Court’s Rule 403 balancing. In conveying to the jury that Franks’s acquittal “doesn’t

mean [he’s] innocent,” the prosecutor undercut the very safeguard that the District Court

had put in place when it ruled that the State could present testimony about the article.

¶42    Second, whether Franks actually committed the sexual offense referenced in the

article was not something the jury needed to decide, or even consider. In other cases,

where the jury is being asked to infer a person’s knowledge, motive, intent, etc. based on

the person’s commission of a prior bad act, it is necessary for the proponent to present

sufficient evidence upon which the jury can find that the prior act in fact occurred. See

Huddleston v. United States, 485 U.S. 681, 690, 108 S. Ct. 1496, 1501-02 (1988); United

States v. Plancarte-Alvarez, 366 F.3d 1058, 1062-63 (9th Cir. 2004); United States v.

Bailey, 696 F.3d 794, 799-800 (9th Cir. 2012). But here, the District Court did not admit

testimony about the article so that the jury could (1) find that Franks sexually molested a

five-year-old boy and then (2) draw inferences based on Franks’s commission of that

offense. The court admitted the testimony solely to explain the timing of and reasons for

C.L.’s disclosure. The truth of the allegations reported in the article was not at issue.


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¶43    Third, and perhaps most importantly, the prosecutor’s remark invited the jury to

hold Franks accountable for an offense of which he had already been tried and acquitted.

One of the protections guaranteed by the Double Jeopardy Clauses of the Fifth

Amendment to the United States Constitution and Article II, Section 25 of the Montana

Constitution is the protection against a separate prosecution for the same offense after

acquittal. Ashe v. Swenson, 397 U.S. 436, 445-46, 90 S. Ct. 1189, 1195 (1970); State v.

Barron, 2008 MT 69, ¶ 14, 342 Mont. 100, 179 P.3d 519. One of the dangers in

admitting evidence of a defendant’s prior misconduct is that the jury will convict him not

for the offense charged, but for his past misdeeds. Old Chief, 519 U.S. at 180-81, 117

S. Ct. at 650-51; State v. Derbyshire, 2009 MT 27, ¶ 51, 349 Mont. 114, 201 P.3d 811.

This danger is aggravated when the prosecutor implies that the defendant was mistakenly

acquitted of a prior offense—that he essentially “got away with it.” There is a risk that

the jury, even if it believes the defendant is not guilty of the present charge, will convict

the defendant anyway in order to punish him for the prior acquitted charge. There is also

a risk that the jury will convict because it believes, in spite of the acquittal, that the

defendant committed the prior offense and thus is more likely to have committed the

charged offense. “These dangers . . . strike at the heart of the protections embodied in the

Double Jeopardy Clause.” State v. Mundon, 292 P.3d 205, 222 (Haw. 2012).

¶44    Some courts have held that evidence of a prior offense is not admissible if the

defendant has been acquitted of that offense. See Mundon, 292 P.3d at 221-23; State v.

Wakefield, 278 N.W.2d 307, 308-09 (Minn. 1979); Christopher Bello, Annotation,

Admissibility of Evidence as to Other Offense as Affected by Defendant’s Acquittal of that


                                             21
Offense, 25 A.L.R.4th 934, §§ 3-4 (1983 & Supp. 2014). While this Court has not, to my

knowledge, adopted the same bright-line rule, we have held that an acquittal constitutes

“a conclusive adjudication that defendant did not commit the [prior] offense” and that the

State is estopped at the trial on the current offense from asserting facts that are contrary to

the acquittal. State v. Hopkins, 68 Mont. 504, 517, 219 P. 1106, 1110 (1923).

¶45    Accordingly, for all of these reasons, the prosecutor’s insinuation that Franks had

in fact committed the 2010 offense, despite his acquittal of that charge, was improper.

¶46    Lastly, in closing argument, the prosecutor suggested that the jury should believe

C.L. since she had implicated the same man who was accused of molesting another child:

              So what we have here is this young girl who, from the first time she
       discloses [to her friends], indicates “it was my father’s roommate,” and that
       continues. Then, before the newspaper article comes out, she tells her
       then-boyfriend it’s a guy named Jason, that’s all he knew. Then she
       continues, and finally the newspaper comes out and, man, is she lucky.
       Boy, is she lucky that a guy named Jason Franks, who happened to be her
       dad’s roommate, is in the paper, accused of molesting a little boy. What
       are the odds?
              What are the odds that the fall guy that she just happened to list,
       named Jason, my dad’s roommate, shows up in the paper? Is he an easy
       target because of the paper, or is he the target because he did this?

This argument invited the jury to infer that Franks is a sexual predator who preys on

young children, that his acts of sexual aggression are dictated by his character, and that

he acted in conformity with that character by sexually assaulting C.L. This is the very

inference that Rule 404, our precedents, and the District Court’s rulings all forbid.

¶47    In deciding whether “the interest of justice” required that Franks be granted a new

trial, § 46-16-702(1), MCA, the District Court needed to consider the State’s failure to

comply with the court’s rulings on Franks’s motions in limine, Havens, 285 Mont. at 201,


                                              22
945 P.2d at 944. The Court implicitly concludes, and I agree, that the District Court

should have attributed greater significance to the prosecution’s misuse of the newspaper

article and manipulation of the District Court’s attempted safeguard. Opinion, ¶ 22.

Franks was on trial for two sexual offenses against C.L. The District Court allowed the

State to present testimony that C.L. disclosed the misconduct after seeing an article which

displayed Franks’s picture and reported that he had been charged with sexual misconduct

against a young boy. Evidence of prior child molestation is highly inflammatory and

prejudicial—even more so where, as here, the defendant has been charged with doing the

same thing to another child. Opinion, ¶ 17; Van Kirk, ¶ 46. However, rather than limit

his questioning and arguments in accordance with the District Court’s rulings, the

prosecutor dwelled on and embellished the nature of the 2010 charge and went beyond

explaining the timing of and reasons for C.L.’s disclosure. Collectively, the prosecutor’s

remarks implied to the jury that Franks was a serial child molester. The prosecutor

invited the jury to infer that Franks committed the prior offense and thus committed the

present offense, and also invited the jury to punish Franks for what the prosecutor

implied was an erroneous acquittal of the 2010 charge. We cannot have confidence

under these circumstances that Franks received a fair and impartial trial. In light of the

prosecutor’s actions, the District Court should have granted Franks’s motion for a new

trial. Havens, 285 Mont. at 201, 945 P.2d at 944.

¶48   In conclusion, except for my disagreement with the aforementioned statements at

¶¶ 21 and 22 of the Opinion, I otherwise join the Court’s decision reversing and

remanding for a new trial. The prosecutor’s improper use of uncharged misconduct


                                            23
evidence, beyond the use authorized by the District Court’s rulings on Franks’s motions

in limine, denied Franks a fair and impartial trial. I specially concur.



                                                  /S/ LAURIE McKINNON




Justice Jim Rice joins the Special Concurrence of Justice Laurie McKinnon.




                                                  /S/ JIM RICE




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