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State v. Franks

Supreme Court of Montana

September 12, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
JASON DEAN FRANKS, Defendant and Appellant.

          Submitted on Briefs: July 26, 2017

         Appeal 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.

          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, Allison Howard, Deputy County Attorneys, Kalispell, Montana.

          OPINION

          Mike McGrath Chief Justice.

         ¶1 Jason Franks appeals from his February 2016 conviction by jury verdict of Sexual Intercourse Without Consent, a felony. We affirm.

         ¶2 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 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.

         ¶4 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 that day.

         ¶5 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.

         STANDARD OF REVIEW

         ¶6 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, ΒΆ 11. A district court's ...


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