State v. McKnight

NO. 90-623
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
FRANKLIN F . McKNIGHT,
Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Mineral,
The Honorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
J. Dirk Beccari, Missoula, Montana
For Respondent:
Hon. Marc Racicot, Attorney General; Elizabeth L.
Griffing, Assistant, Helena, Montana
M. Shaun Donovan, County Attorney, Superior, Montana

Submitted on ~riefs: July 25, 1991
Decided: November 14, 1991
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

Defendant was found guilty of sexual intercourse without
consent after a jury trial in the District Court for the Fourth
Judicial District, Mineral County. Defendant appeals. We affirm.
The issues for our consideration are:
1. Did the District Court abuse its discretion by allowing
evidence of prior sexual assaults?
2. Did the District Court err by denying defendant's motion
for mistrial?
On December 20, 1989, Franklin I1NicknMcKnight, defendant, was
charged with three counts of sexual intercourse without consent,
two perpetrated against S.W. in 1981 and one against K.O. in 1984;
and three counts of sexual assault, two perpetrated against S .W. in
1981 and one against S.B. in 1981. On February 6, 1990, the
information was amended to include a count of sexual assault
perpetrated against L.W. in 1981.
At the omnibus hearing, defendant moved to dismiss the charges
as being barred by the statute of limitations. The State responded
and concurred with defendant's motion. All charges except for the
count of sexual intercourse without consent against K.O. in 1984
were dismissed as barred by the statute of limitations.
The State filed a Just notice of intent to introduce evidence
of the charges dismissed as barred by the statute of limitations,
citing State v. Tecca (1986), 220 Mont. 168, 714 P.2d 136, as
authority. It sought to introduce the evidence Itforthe purpose of
supporting the State's proof on the issue of defendant's intent and
2
state of mind and consistent with the proposition that the
defendant's acts were consistent with a common scheme, plan or
system, as permitted by Rule 404 (b)# I .
Defendant maintained that the admission of testimony of the
alleged victims of.the dismissed charges would prejudice the
defendant since they were untried, unproven allegations. He also
argued that the other evidence was too remote in time to satisfy
the Just rule.
After a hearing, the District Court allowed the State to
introduce evidence of the other acts under the Just rule. The
dismissed counts of sexual intercourse without consent were not
introduced at trial.
Defendant is the great-uncle of K.O. In 1984, nine-year old
K.O. was visiting Montana with her family. Defendant's step-
granddaughter, S.B., was one of K.O.'s friends. One day in the
summer of 1984, S.B. and K.O. were playing in the area of
defendant's house because S.B.'s father was staying in a trailer
parked on the defendant's property. While the girls had planned on

spending the night together, S.B.'s father picked her up and K.O.
was left at defendant's house. K.O. testified that on that evening
while she was lying on the couch in the defendant's living room and
after Mrs. McKnight had gone to bed, defendant sat down on the
couch next to K.O. She testified he put his hand under her shirt,
and rubbed her chest. She testified he then started rubbing her
genital area, and llactually
put his fingers inside me.!! When K.O.
asked him what he was doing defendant told her that he was giving
her a massage and not to tell anyone.
After this incident, K.O. began having severe stomach aches.
She became withdrawn, especially from older men, and was afraid to
go places alone or to be left alone. She testified she did not
want to be near defendant. She also testified she did not trust
people anymore. When K.0.l~ family moved from ~alifornia to
Montana in 1988, defendant came to ~aliforniato help them move and
K.O. refused to ride alone with him.
Lindsay Clodfelter, a mental health therapist, and member of
the Montana Sex Offender Treatment ~ssociation, testified that
child victims often will tell of earlier experiences involving
sexual abuse only when they become adolescents. She testified that
"most children don't tell right away because by keeping it a
secret, they protect themselves and they protect their family. The
closer the kid is to the offender, the less likely the kid is to
report." If they tell once they emerge into adolescence it is
because Ifthat's a time when they are -- they're branching out
further and further from their family." She testified that she
interviewed K.O. and then gave her expert opinion that K.O. had
been sexually assaulted by someone.
S.B. testified that in the summer of 1981 she and a friend,
S.W., were playing around defendant's house. Both girls were eight
years old in 1981. Defendant asked them if they wanted to see his

old car. When they went into the garage, defendant picked up S.B.
and set her on a ledge. He rubbed S.B. on her chest and genital
area. He then assaulted S.W., putting his hands in her shirt and
down her pants. S.W; also stated that "he stuck his hand inside of
me and moved it around". S.B. testified she saw the assault on
S.W. She then walked around behind the vehicle so that she would
not have to watch "the rest of itv1. S.B. testified defendant
threatened to kill them if they told anyone what had happened. A
similar assault happened to S.B. again that summer, while she was
sitting on defendant's couch under a blanket. S.B. testified
defendant sat down beside her on the couch, covered them both with
the blanket, stuck his hand under her shirt, and rubbed her chest
and back. She further testified that defendant said llnobody
would
believe me if I told, and he'd kill me".
S.W.'s twin sister, L.W., testified that she was molested by
defendant in 1981 when she was eight years old. She had been
playing with S.B. in the trailer on defendant's property. L.W.
testified that after S.B. left to go get something, defendant threw
L.W. on the mattress, grabbed her chest and then stuck his hand
down her pants. She asked him what he was doing and defendant said
that he was just playing with her. L.W. became mad, kicked him in

the groin, and ran from the trailer. He threatened to kill L.W. if
she told anyone. L.W. further testified that defendant said if she
ever told "he would make it look like we wanted it".
After a jury trial, defendant, 76 years old at the time, was
found guilty of sexual intercourse without consent and sentenced to
20 years in the Montana State Prison with 10 years suspended. The
District Court further ordered that defendant would not be eligible
for parole until he successfully completed the sex offender
treatment program at the prison. Defendant appeals.
I
Did the District Court abuse its discretion by allowing
evidence of prior sexual assaults?
Defendant maintains the District Court erred in allowing S.B.,
L.W. and S.W. to testify about unproven allegations of sexual acts
committed by defendant against them because the evidence did not
meet the standards of Rule 404 (b), M.R.Evid., and State v. Just
(1979), 184 Mont. 262, 602 P.2d 957. Defendant maintains that the
"other acts" were not sufficiently similar to the charged offense
because the other acts were alleged sexual assaults while the crime
defendant was convicted of here was sexual intercourse without
consent. Defendant also argues that the other acts were too remote
in time to be admissible as evidence, and that they did not tend to
show common scheme, plan system or motive. The State maintains the
evidence met the Just test and was properly admitted into evidence.
Recently, in 1991 this Court adopted the Modified Just Rule in
State v. Matt (Mont. 1991), P.2d , 48 St.Rep.614.
The Modified Just Rule sets forth the basis for the admission
of evidence other crimes, wrongs acts:
(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. Matt, 48 St.Rep. at 616. The Matt Court also applied the
procedural protections as part of the Modified Just Rule. Those
procedural protections are:

(1) Evidence of other crimes, wrongs or acts may not be
received unless there has been written notice to the
defendant that such evidence is to be introduced. The
notice to the defendant shall specify the evidence of
other crimes, wrongs or acts to be admitted, and the
specific Rule 404(b) purpose or purposes for which it is
to be admitted.
(2) At the time of the introduction of such evidence,
the trial court shall explain to the jury the purpose of
such evidence and shall admonish it to weigh the evidence
only for such purposes.
(3) In its final charge, the court shall instruct the
jury in unequivocal terms that such evidence was received
only for the limited purposes earlier stated and that the
defendant is not being tried and may not be convicted for
any offense except that charged, warning them that to
convict for other offenses may result in unjust double
punishment.
State v. Matt, 48 Sk.Rep. at 616.
Similarity of Other Crimes, Wronss or Acts
Defendant maintains that evidence of unproven sexual assaults
perpetrated against other victims than the victim of the crime
charged is inadmissible. His argument is twofold. First, he
maintains that the victims are not the same and neither is their
relationship to the defendant, so therefore, the similarity
requirement is not met. Secondly, he maintains that the crimes of
sexual assault and sexual intercourse without consent are not
suff'iciently similar.
 The State maintains the other evidence is sufficiently similar
because the charged offense and each one of the other crimes
involved sexual contact between the defendant and a young girl who
was eight or nine years old; each assault occurred on defendant's
property; defendant's actions during each assault and the charged
offense were basically the same; and defendant's threats toward
each of the girls were essentially the same.
As the State points out, defendant's actions toward K.O. were
similar to the actions against S.B., L.W. and S.W. In all cases,
defendant rubbed the girls breasts and genital area. With S.W. and
K.O. defendant went one step further and inserted his fingers into

their vaginas, and thus, the charge of sexual intercourse without
consent. The assaults on all girls happened when they were eight
or nine years old; each assault occurred on defendant's property;
and defendant threatened all the girls in essentially the same way.
See State v. Tecca, 714 P.2d 136. As stated above, defendant's
actions towards S.B., L.W. and S.W., as well as the charged actions

toward K.O. were clearly similar. We conclude that the similarity
of the other crimes,' wrongs or acts test has been met.
Nearness in Time
Defendant contends that the 1981 assaults against S.W., L.W.
and S.B. are too remote in time to be admissible since those
alleged assaults took place about three years earlier than the
crime charged and nothing occurred in the interim. The State
maintains that the remoteness question is directed to the
discretion of the district court. It argues that here, the three
year period of time was not so remote as to supersede the
discretion of the District Court.
Here the assaults on S.W., S.B. and L.W. occurred in 1981;
three years prior to the 1984 crime against K.O. For a comparison
of time periods, see Just 602 P.2d at 961 (three years); State v.
Stroud (1984), 210 ~ o n t .58, 71, 683 P.2d 459, 466 (three and one-
half years); State v. Eiler (1988), 234 Mont. 38, 48, 762 P.2d 210,
216-17 (five years); and Tecca, 220 Mont. 168, 170, 714 P.2d 136,
139 (nine years). In addition to the three year time span in the
present case, we have considered the similarity in conduct when
comparing the assaults on S.W., S.B. and L.W. to the assault
against K.O., which demonstrates a pattern of similar conduct which
may be properly considered on the issue of remoteness. See Tecca,
220 Mont. 172, 714 P.2d 139. We conclude the evidence was not too
remote in time.
Proof of Notice, Opportunity, Intent, Preparation, Plan,
Knowledqe, Identity, or Absence of Mistake or Accident
Defendant contends that this element is not satisfied because
the alleged crimes were perpetrated against different victims. He
further argues that mere repetition of an act does not constitute
a common scheme, plan or system. The State maintains that the
actions of the defendant were sufficiently similar to constitute a
common scheme, plan or system.
We note that this element has recently been modified in Matt
and that the admission of evidence is not limited only to common
scheme, plan or system. The Matt case recognized the
inconsistencies in our previous holdings regarding other crimes
9
evidence. In modifying the Just Rule, the Matt Court explained:
While the Just Rule was entirely appropriate to the
factual situation in that case, it has led to
contradictory results. The third element of the Just
Rule provides that evidence may be admissible for the
purpose of showing a common scheme, plan or system. We
agree with that conclusion in that case. However, we
emphasize that Rule 404(b) is not limited only to common
scheme, plan or system. Rule 404(b) provides that
evidence may be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
Clearly Rule 404(b) provides for the admission of
evidence for many purposes other than the common scheme,
plan or system stated in Just. We point out that the
I1common scheme, plan or system" referred to in Just is
listed as I1plant1under Rule 404(b), according to
McCormick on Evidence, 3rd Ed., 5190, pp. 558-564 (1984);
22 C. Wright and K. Graham, Federal Practice and
Procedure, Evidence, 5 5244, p. 499 (1978); and 23 CJS
Criminal Law 5830 (1989).
Matt, 48 St.Rep. at 615. We conclude that under the Modified Just
Rule, the other crimes, wrongs or acts evidence here tended to
prove defendant's motive and intent.
Probative Value Outweiqhs the Prejudicial Effect
Defendant maintains that the other acts evidence introduced
amounted to unproven, untried allegations against different
victims, and that such evidence was highly prejudicial to him. The
State maintains that the probative value of the prior crimes
evidence is established by the satisfaction of the first three
elements of the Just Rule.
We first point out that the parties agree that the procedural
precautions were taken in this case. The defendant received proper
notice; the trial court admonished the jury at the introduction of
the evidence; and the trial court instructed the jury in its final
charge on the purpose of the evidence. Thus the only question then
is whether the probative value of the evidence was outweighed by
unfair prejudice. This Court recently addressed this question at
length in State v. Paulson, No. 90-163, slip op. (Mont. 1991),
citing and adopting 10 James Wm. Moore, Moore's Federal Practice 5

To guide courts in balancing the I1probativevalue"
and the "unfair prejudicel1 of evidence, the Committee
states that the latter term means evidence which has "an
undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one."
Application 0.f this thought and the ultimate
determination of admissibility are matters left to the
discretion of the trial court and will necessarily be
decided on a case by case basis. However, by restricting
the rule to evidence which will cause "unfair prejudice"
the draftsmen meant to caution courts that mere
prejudicial effect is not a sufficient reason to refuse
admission. Probative evidence will frequently be
prejudicial to a party, but that does not mean that it
will cause the fact finder to sround a decision on an
emotional basis. Thus, evidence which tends to horrify,
evoke sympathy or increase a desire to punish due to a
prior act of a party and whose probative value is sliqht
may be properly excluded. (Emphasis supplied.)
Paulson, s1ip.o~. at 13.
In the present case, the testimony of S.W., L.W. and S.B. was
clearly prejudicial, but because it meets other aspects of the
Modified Just Rule, such prejudice alone is not a sufficient reason
to refuse admission. Paulson, slip op. at 14. The jury was
properly instructed and admonished regarding the testimony on the
other acts. The evidence presented established without question
the similarity in assaults perpetrated against all the victims.
Defendant's conduct was similar; the age of the girls at the time
the crimes were committed was about the same; all the acts took
place on defendant's property; and defendant's threats to all the
girls were similar. We conclude that the probative value of the
evidence in question outweighed any prejudicial effect of admitting
it.
We conclude that the four elements of the Modified Just Rule
have been met. We hold that the ~istrictCourt did not abuse its
discretion by allowing evidence of prior sexual assaults.

Did the District Court err by denying defendantts motion for
mistrial?
At trial, the last witness to testify was Dawn Terrill, S .W. 's
teacher. The State prosecutor asked the teacher what she had been
told by S.W. and the teacher responded:
Q. What exactly did she tell you about the
details of the assault against her?
A. The first time that I met with [S.W.] she
didn't tell me, but the third time she came
into my room to talk to me she told me she had
been sexually assaulted as a child.
Q. Did she tell you what exactly happened?
A. She told me that everything happened, and
I1everythingl1
was her word.
The defendant moved for a mistrial on the basis of Dawn Terrillfs
use of the word lleverythingH. The District Court denied the
motion. On appeal, defendant argues it was error for the District
Court not to declare a mistrial. He maintains that the word
"everythingI1 as used, implied to the jury that the defendant had
penis-in-vagina sex. He argues that he was severly prejudiced by
that statement because the jury would be totally disgusted with the
thought of an old man copulating with a little child. The State
argues that ffeverythingff such a vague meaning.
has It argues that
the teacher's reference to "everythingffcould easily be construed
to include exactly what S.W. testified to at trial -- that
defendant put his hands in her shirt and down her pants, rubbed her
chest and put his finger inside of her.
This Court set forth the standard for declaring a mistrial in
State v. Clawson (1989), 239 Mont. 413, 423, 781 P.2d 267, 273-74.
There must be a manifest necessity to declare a
mistrial and the defendant must have been deprived of a
fair and impartial trial. State v. Brush (1987), 228
Mont. 247, 741 P.2d 1333, 1336. 44 St.Rep. 1495, 1499.
The test for declaring a mistrial was stated by the
United States Supreme Court in United States v. Perez. .
. . The law has invested Courts of justice with the
authority to discharge a jury from giving any verdict,
whenever, in their opinion, taking all the circumstances
into consideration, there is a manifest necessity for the
act, or the ends of public justice would otherwise be
defeated. They are to exercise a sound discretion on the
subject . . . The power ought to be used with the
greatest caution, under urgent circumstances, and for
very plan and obvious causes; . . . (Citations omitted).
Considering all the circumstances and viewing the trial as a whole,
we conclude that the use of the word lfeverythinguwas not
prejudicial to defendant. K.O., S.B., L.W. and S.W. had all
testified prior to S.W.'s teacher. None of the girls' testimony
implied that there was ever penis-in-vagina sexual contact between
the defendant and themselves. Therefore, it would be highly
unlikely that the jury would take the meaning of the word
ffeverythingff used in the teacher's testimony out of the context
as
of the rest of the testimony they heard throughout the trial.
We conclude that the defendant was not deprived of a fair and
impartial trial and there is no manifest necessity to declare a
mistrial. We hold that the District Court correctly denied

defendant's motion for mistrial.
Affirmed.
Justice William E. Hunt, Sr., dissenting.

I dissent from the foregoing opinion for the reasons set forth
in my dissent in State v. Matt (Mont. 1991), 814 P.2d 52, 48