Submitted on Briefs: July 25, 2018
FROM: District Court of the Eleventh Judicial District, In
and For the County of Flathead, Cause No. DC 10-464 (A)
Honorable Ted O. Lympus, Presiding Judge
Appellant: Chad Wright, Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Jonathan
M. Krauss, Assistant Attorney General, Helena, Montana, Ed
Corrigan, Flathead County Attorney, Stacy Boman, Deputy
County Attorney, Kalispell, Montana
Bruce Frey appeals his conviction, after jury trial, of three
counts of child sexual assault, and also disputes the
prosecution costs, jury costs, and court technology fees
imposed by the Eleventh Judicial District Court, Flathead
County. We restate the issues on appeal as follows:
1. Did the District Court abuse its discretion by
partially denying Frey's pre-trial motion in limine to
exclude evidence of prior bad acts?
2. Did the District Court abuse its discretion by
admitting evidence about Frey's ability to see?
3. Did the District Court err by imposing $9, 181.45 in
prosecution and jury costs as well as a $30 technology fee
for each convicted count?
We affirm on Issues 1 and 2, and reverse and remand for
further proceedings as to Issue 3.
AND PROCEDURAL BACKGROUND
In December 2013, Frey was charged with three counts of
Sexual Assault in violation of § 45-5-502(3), MCA.
During the years from 2001 to 2006, Frey was alleged to have
sexually assaulted three females who were then between the
ages of five and fourteen.
Prior to trial, Frey moved in limine to prohibit the State
from presenting evidence of his seven prior criminal
convictions and to exclude any reference to earlier
investigations into alleged child sexual abuse committed by
Frey. The State objected to the exclusion of evidence
pertaining to Frey's 1991 convictions for false reporting
to law enforcement, which it intended to introduce during
cross-examination as bearing upon Frey's truthfulness,
pursuant to M. R. Evid. 608(b), if Frey chose to testify. In
a pre-trial written order, the District Court denied
Frey's motion as to his convictions for false reporting
for purposes of the State's use of the evidence under M.
R. Evid. 608(b), reasoning that, "[t]he Court has no
additional information regarding the conviction for false
reports to law enforcement, but it is inclined to allow the
inquiry on cross-examination." The District Court
granted Frey's motion to exclude evidence concerning
other prior bad acts.
At the January 2015 trial, Frey appeared using a walking cane
and wearing dark glasses. As his appellate briefing
acknowledges, Frey presented in the courtroom "as a
blind man." Frey testified his eyesight began
deteriorating in the late 1990s and that he began walking
with a cane in 2010. Frey indicated in a pre-trial motion
that in October of 2013, he had ...