Submitted on Briefs: July 26, 2017
From District Court of the Eleventh Judicial District, In and
For the County of Flathead, Cause No. DC-11-169B Honorable
Robert B. Allison, Presiding Judge.
Appellant: Robin A. Meguire, Meguirelaw.com, Great Falls,
Appellee: Timothy C. Fox, Montana Attorney General, Mardell
Ployhar, Assistant Attorney General, Helena, Montana Ed
Corrigan, Flathead County Attorney, Travis Ahner, Allison
Howard, Deputy County Attorneys, Kalispell, Montana.
McGrath Chief Justice.
Jason Franks appeals from his February 2016 conviction by
jury verdict of Sexual Intercourse Without Consent, a felony.
The issue on appeal is whether the District Court erred in
admitting evidence of a portion of Franks' testimony from
his first trial on the same charge.
AND PROCEDURAL BACKGROUND
In 2012 a jury in Flathead County convicted Franks of sexual
intercourse without consent. Franks appealed and this Court
reversed the conviction and remanded. This Court determined
that the District Court erred in admitting evidence of a news
story that Franks had been charged with a prior sexual
offense. Franks testified at the first trial, partially in
response to the evidence of the news story. State v.
Franks, 2014 MT 273, 376 Mont. 431, 335 P.3d 725.
The State retried Franks on the same charge in February 2016.
During opening statements Franks' attorney told the jury
that the defense would present alibi testimony. Thereafter
the State in its case-in-chief sought to introduce evidence
of Franks' testimony from the first trial, to be
presented through testimony of a police officer who attended
the first trial. After several sessions of argument on the
issue out of the hearing of the jury, and over the period of
two days, the District Court allowed the State to present
limited evidence of Franks' prior testimony, applying
Mazurek v. District Court, 2000 MT 266, 302 MT 39,
22 P.3d 166. The District Court applied M. R. Evid. 403 to
preclude the State from informing the jury that there had
been a prior trial, and to limit evidence of the prior-trial
testimony solely to the issue of alibi. The State called a
police officer who testified that Franks stated at a
"prior hearing" that he had no work records for the
day of the offense and that he did not remember where he was
Franks did not testify at the second trial. A defense witness
testified that she remembered the date of the offense because
it was her birthday; that there was a party to celebrate; and
that Franks attended. The jury convicted Franks and the
District Court sentenced him to 100 years at Montana State
Prison. Franks appeals.
A district court has broad discretion to determine the
admissibility of evidence, and this Court reviews that
decision to determine whether the district court has abused
its discretion. State v. Lotter, 2013 MT 336, ¶
13, 372 Mont. 445, 313 P.3d 148. A district court abuses its
discretion if it acts arbitrarily, without conscientious
judgment, or exceeds the bounds of reason. Franks,
¶ 11. A district court's ...