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Kirk R. Molder v. State of Montana

April 3, 2013


APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. BDV 08-500 Honorable Julie Macek, Presiding Judge

The opinion of the court was delivered by: Chief Justice Mike McGrath

April 3 2013

Submitted on Briefs: February 13, 2013



Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Kirk R. Molder (Molder) appeals from an Order from the Montana Eighth Judicial District Court, Cascade County, that denied his Petition for Post-conviction Relief. The issue on appeal is whether the District Court properly concluded that Molder had failed to prove that he had received ineffective assistance of counsel and was, therefore, not entitled to relief. We affirm.

¶3 On November 10, 2004, a jury convicted Molder of five counts of Sexual Intercourse Without Consent and four counts of Incest. For each count, the District Court sentenced Molder to 75 years in the Montana State Prison with the terms to run concurrently. Molder appealed, arguing that the trial court should have continued the trial because counsel was not prepared and because he and his attorney disagreed on the trial strategy. This Court affirmed his convictions in February of 2007. State v. Molder, 2007 MT 41, 336 Mont. 91, 152 P.3d 722.

¶4 Molder filed a Petition for Post-conviction Relief on April 14, 2008. The District Court appointed counsel to assist Molder with his petition. On July 29, 2010, Molder filed an Amended Petition for Post-conviction Relief in which he claimed that he had received ineffective assistance from his trial counsel for a litany of reasons. Molder also argued that, should the District Court determine that any of his claims were record based and thus procedurally barred, then his appellate counsel was ineffective for failing to raise those issues on direct appeal.

¶5 Specifically, Molder argued that his trial counsel, who has since died, was ineffective because he: 1) refused to offer into evidence certain medical examination reports; 2) refused to offer evidence and elicit testimony regarding one of the victim's prior sexual conduct to explain the victim's genital injuries; 3) failed to elicit testimony regarding the victims' prior sexual conduct to establish a motive for them to fabricate the allegations; 4) failed to challenge his Incest charges with a prior court order from a Youth in Need of Care proceeding that established that he had no legal relationship to the victims that would entitle him to participate in that proceeding; 5) failed to seek a specific unanimity instruction; 6) failed to object to the prosecutor's definition of "reasonable doubt" during voir dire; 7) failed to challenge certain prospective jurors for cause; 8) failed to object to a detective's testimony that he thought the victims had been coached to deny abuse; and 9) failed to challenge the State's rebuttal child sexual abuse expert. In addition to claiming that he had been prejudiced by each supposed error, Molder also claimed that he had been prejudiced by his trial counsel's cumulative errors.

¶6 The District Court held an evidentiary hearing on October 5, 2011. At the conclusion of the hearing, the District Court denied a number of Molder's claims. The court determined at the hearing that the question of whether Molder could be charged with Incest was not the same question as whether he had parental rights that would allow him to participate in the victims' Youth in Need of Care proceedings. The court also concluded that Molder's counsel had no reason to object to the prosecution's comments during voir dire regarding what a "reasonable doubt" means, and there was no basis for Molder's complaint about trial counsel's performance while selecting the jury. Lastly, the court denied Molder's claim that his trial counsel provided ineffective assistance by failing to challenge the detective's testimony because his counsel did, in fact, object to the testimony. The District Court took the rest of Molder's claims under advisement.

¶7 The District Court denied the remaining claims in a detailed written order issued on January 18, 2012. The court concluded that it was sound trial strategy for Molder's counsel to refuse to offer into evidence the medical records that Molder wanted admitted. Those records had little exculpatory value and even Molder admitted that they would have been problematic if put in front of the jury. Instead, Molder's counsel addressed the records while questioning witnesses and during closing arguments.

ΒΆ8 The court also determined that Molder's counsel did not err by refusing to offer evidence of the victims' prior sexual conduct to impeach the victims and to offer an alternative explanation for one of the victim's injuries. The court held, and we agree, that the evidence that Molder wanted admitted ...

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