No. 91-293
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
ROBERT GORDON BENTON,
JAN 2 8 19921
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif B. Erickson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Don Vernay, Attorney at Law, Kalispell, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Cregg W. Coughlin, Assistant Attorney General
Ted 0. Lympus, Flathead County Attorney,
Kalispell, Montana
Submitted on Briefs: December 4, 1991
Decided: January 28, 1992
Filed:
I Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
On June 11, 1990, the State of Montana filed an Information in
the Eleventh Judicial District Court in Flathead County, charging
Robert Gordon Benton with attempted deliberate homicide. The case
was tried before a jury on September 24 and 25, 1990. At the
conclusion of the evidence, the District Court instructed the jury
on attempted deliberate homicide and aggravated assault, a lesser
included offense. The jury acquitted Benton on the attempted
deliberate homicide charge but convicted him on the aggravated
assault charge. Benton appeals. We affirm.
The issues are:
1. Did the District Court err when it refused to allow
Benton to inquire into the victim's prior arrest for felony
assault?
2. Did the District Court err when it denied Benton's motion
for mistrial based on the introduction of evidence that Benton had
previously been convicted of child molesting?
3. Did the District Court err when it refused to give a
cautionary instruction sua spoiite after the introduction of evidence
that Benton had previously been convicted of child molesting?
On April 26, 1990, the Flathead County Office of the
Department of Family Services wrote to Laurie Sirucek, Benton's
girlfriend, and told her that Benton had been convicted of child
molesting in Oregon. In fact, Benton had been convicted of sexual
abuse, not child molesting, and the victim in that case was 3 2
2
years old. Ms. Sirucek showed the Family Services letter to
Benton's friends Larry Poston and Douglas Rushford. Poston and
Rushford then told Benton they wanted nothing further to do with
him.
On May 16, 1990, Poston and Rushford were drinking at the Log
Cabin Bar in downtown Kalispell when Benton walked in. Poston and
Benton began arguing about the letter. Benton then invited Poston
to step outside. Rushford insisted that anyone who went outside
should go out the front door so that there would be witnesses.
Benton went out the front door and Rushford followed.
A physical altercation followed, and Benton stabbed Rushford
in the chest. Rushford testified that Benton stabbed him without
warning. Benton, on the other hand, testified that he had the
knife out to deter Rushford and that when Rushford charged him he
held the knife out to defend himself. Benton fled. Rushford
returned to the bar and passed out.
The case was tried before a jury on September 2 4 and 25, 1990.
Benton relied on the affirmative defense of justifiable use of
force. The jury found Benton guilty of aggravated assault. The
District Court sentenced Benton to 20 years at Montana State Prison
for the aggravated assault and added 10 years for use of a weapon.
The court also designated Benton as a dangerous offender for parole
eligibility purposes. Benton appeals from the judgment and
sentence of the District Court.
3
I
Did the District Court err when it refused to allow Benton to
inquire into the victim's prior arrest for aggravated assault?
Before trial, Benton asked the District Court whether he could
introduce evidence that Rushford was facing pending aggravated
assault charges in Arizona. The court refused to permit this
evidence on the grounds that it was irrelevant unless Benton knew
of the charges at the time of the fight with Rushford, and that it
was of little probative value in any event.
Benton now argues that this was reversible error. He cites
Statev.Logaiz (1970), 156 Mont. 48, 473 P.2d 833, for the proposition
that proof of knowledge of the victim's character by the defendant
is unnecessary when the issue concerns which party was the
aggressor. Benton also argues that Rule 404(b), M.R.Evid., and state
v. Just (1979), 184 Mont. 262, 602 P.2d 957, do not expressly require
a balancing of probative value against unfair prejudice when the
evidence tends to impugn the character of someone other than the
defendant.
Benton is correct to the extent that probative evidence of
Rushford's character would have been admissible under Logan to show
that Rushford was the aggressor. In fact, the District Court
allowed Benton to inquire into other instances of Rushford's
conduct in order to show that he had a disposition to violence.
4
However, the District Court did not err in excluding Benton's
proposed evidence about Rushford's assault charges because that
evidence lacked probative value.
Although Rule 404 and Just did not require the exclusion of
this evidence, it was nonetheless inadmissible under Rule 403,
M.R.Evid. Rule 403 provides that "[allthough relevant, evidence
may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice . . . .
" We agree with the
District Court that the danger of unfair prejudice to the State
clearly outweighed the probative value of the evidence in question,
because the evidence concerned only charqes, not a conviction.
Furthermore, the charges were two years old at the time of trial.
We hold that the District Court did not err when it refused to
allow Benton to inquire into the victim's prior arrest for
aggravated assault.
I1
Did the District Court err when it denied Benton's motion for
mistrial based on the introduction of evidence that Benton had
previously been convicted of child molesting?
At the close of his own case in chief, Benton moved for a
mistrial based on Rushford's inaccurate testimony that Benton was
previously convicted of child molesting. The District Court denied
this motion, and Benton now argues that this was reversible error.
We disagree.
5
A mistrial is appropriate only upon a demonstration of
manifest necessity coupled with the denial of a fair and impartial
trial. State v. Clawson (1989), 239 Mont. 413, 423, 781 P.2d 267,
273-74. We will not overturn a lower court's denial of a motion
for mistrial in the absence of clear and convincing proof of error.
Statev. Gambrel (1990), 246 Mont. 84, 91, 803 P.2d 1071, 1075-76.
Before trial, the parties agreed that evidence about the false
child molesting accusation was necessary in order to show how the
fight started. In fact, evidence of this false accusation was
critical to Benton's theory that he approached Poston and Rushford
in the Log Cabin Bar in order to set the record straight by
explaining that the accusation was inaccurate. Benton now argues
that while the jury should have heard that he was falsely accused
of child molesting, it should not have heard inaccurate evidence
that he was convicted of that offense.
At most, however, the introduction of this evidence was
harmless error. Rushford, the State's own witness, testified that
he had no knowledge of a conviction other than the allegations in
the letter from Family Services. Furthermore, the testimony itself
was true--the letter did indeed indicate that Benton had been
convicted of child molesting, and Rushford and Poston apparently
believed it to be accurate. Benton then took the stand and
unequivocally denied that he had ever been arrested or convicted
for child molesting. The State made no attempt to rebut this
6
testimony. Furthermore, the State did not attempt to place the
fact of Benton's sexual abuse conviction before the jury.
We conclude that Benton has not carried his burden of showing
how the introduction of the evidence in question denied him a fair
and impartial trial. We hold that on this record the District
Court did not err in denying Benton's motion for a mistrial based
on the introduction of inaccurate evidence that he was convicted of
child molesting.
I11
Did the District Court err when it refused to give a
cautionary instruction sua spoizte after the introduction of evidence
that Benton had previously been convicted of child molesting?
The District Court did not give a cautionary instruction after
the State introduced testimony about the letter from Family
Services. Benton now argues that the court should have given such
an instruction and that its failure to do so constitutes reversible
error. We disagree. If a cautionary instruction was required,
Benton should have proposed one to the court.
Section 46-16-401(4) (a), MCA (1989), the statute in effect at
the time of trial, provided that:
When the evidence is concluded, if either party desires
special instructions to be given to the jury, such
instructions shall be reduced to writinq, numbered,
siqned by the party or his attornev, and delivered to the
court. [Emphasis added.]
In StnteV. Close (1981), 191 Mont. 229, 244, 623 P.2d 940, 948, we
applied this statute in refusing to consider an alleged error
7
predicated on the lack of a cautionary instruction because the
defendant in that case had not offered the necessary instruction.
In this case, the burden of drafting and offering the
necessary instruction fell on Benton. We hold that the District
Court did not err by not giving a cautionary instruction because
Benton did not offer one.
The judgment of the District Court is affirmed.
We concur:
8
January 28, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
DON VERNAY
Attorney at Law
343 first Avenue West
Kalispell, MT 59901
HON. MARC RACICOT, Attorney General
Cregg W. Coughlin, Assistant
Justice Building
Helena, MT 59620
TED 0. LYMPUS, Flathead County Attorney
Flathead County Courthouse
P.O. Box 1516
Kalispell, MT 59903-1516
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA