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State v. Frey

Supreme Court of Montana

September 25, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
BRUCE ALLEN FREY, Defendant and Appellant.

          Submitted on Briefs: July 25, 2018

          APPEAL 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

          For Appellant: Chad Wright, Appellate Defender, Helena, Montana

          For 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

          OPINION

          Jim Rice, Justice

         ¶1 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?

         ¶2 We affirm on Issues 1 and 2, and reverse and remand for further proceedings as to Issue 3.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 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.

         ¶4 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.

         ¶5 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 ...


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