State v. MacKinnon

1998 MT 78, 957 P.2d 23, 288 Mont. 329, 55 State Rptr. 331, 1998 Mont. LEXIS 53
CourtMontana Supreme Court
DecidedApril 9, 1998
Docket96-463
StatusPublished
Cited by55 cases

This text of 1998 MT 78 (State v. MacKinnon) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. MacKinnon, 1998 MT 78, 957 P.2d 23, 288 Mont. 329, 55 State Rptr. 331, 1998 Mont. LEXIS 53 (Mo. 1998).

Opinions

JUSTICE NELSON

delivered the Opinion of the Court.

¶1 This is an appeal from the Fourth Judicial District Court, Missoula County. On October 17, 1995, a jury found Defendant Alexander MacKinnon (MacKinnon) guilty of felony sexual assault of his step-daughter, M.G. On March 29, 1996, the District Court entered judgment against MacKinnon. From this judgment and certain evidentiary rulings, MacKinnon appeals. We affirm.

¶2 We restate the following issues raised on appeal:

¶3 1. Did the District Court abuse its discretion by allowing the State to present testimony concerning MacKinnon’s statements which he made on July 16, 1995, in the presence of the victim, M.G., M.G.’s mother and his ex-wife, Monica, as well as two church members, John and Coleen Contos?

[332]*332¶4 2. Did the District Court abuse its discretion by riding that MacKinnon’s ex-wife, Monica, could not be cross-examined about prior sexual abuse of herself and her daughter, M.G.?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 On May 1, 1995, an Information was filed with the Fourth Judicial District Court, Missoula County, charging MacKinnon with committing the offense of felony sexual assault, in violation of § 45-5-502, MCA (1993). The Information alleged that, in a continuing course of conduct over the previous four years, MacKinnon had knowingly subjected his nine-year-old step-daughter, M.G., to sexual contact without consent by rubbing her breasts and vaginal area. On May 10, 1995, MacKinnon pleaded not guilty to the charge, thereafter, a trial date was set to begin October 13, 1995. On May 22, 1995, M.G.’s mother, Monica, and MacKinnon were divorced.

¶6 In April 1995, Monica became active in the Missoula Christian Church (the Church) and became a member in June 1995. Thereafter, MacKinnon also became active in the Church, but he did not become a member until October 1995. The Church was formed in August 1994 in Missoula, Montana, as a branch of the same church located in Denver, Colorado. John Contos, Coleen Contos and Ken Edwards, witnesses in this action, moved to Missoula from Denver to help form the church and all have responsibilities within the church as group leaders. However, the Church is headed by an ordained minster who conducts church services and is licensed to perform marriages. As a part of its Bible-based teachings, the Church allows its members to confess their sins to one another, but no church member has the authority to formally forgive sins. Rather, the Church believes forgiveness only comes from God.

¶7 On July 16, 1995, after an evening church service conducted in a Missoula restaurant, which both Monica and MacKinnon had attended, Monica and M.G. encountered MacKinnon in the parking lot. An argument ensued concerning visitation of Monica’s and MacKinnon’s two boys. Thereafter, MacKinnon began talking to M.G. and apologizing to her, apparently to set things right with her so she would not have to testify at court proceedings. Concerned with the nature of this conversation, Monica suggested that they continue the conversation inside the restaurant in the presence of John and Coleen Contos. As a result of Monica’s suggestion, the conversation continued in the back of the lobby area of the restaurant with everyone sitting on chairs. Subsequently, on August 21,1995, a second conver[333]*333sation took place at the home of John Contos involving MacKinnon, Monica, John Contos and Ken Edwards.

¶8 On October 12,1995, the State filed a memorandum in support of the use of statements made by MacKinnon in both the July 16,1995 and the August 21,1995 conversations. In response, MacKinnon filed a motion in limine and a motion to suppress concerning these statements and a related document. On October 13, 1995, prior to commencing jury selection, the District Court heard testimony and argument concerning these motions, and, thereafter, granted MacKinnon’s motion to suppress the document and his August 21, 1995 statements, but allowed testimony concerning his July 16, 1995 statements.

¶9 On October 16, 1995, a jury trial was held. During a break in the trial and outside the presence of the jury, the State moved the District Court to prevent MacKinnon from cross-examining Monica or M.G. concerning two prior incidents of sexual abuse, one involving sexual abuse of Monica by a family member when she was a child and the other involving sexual abuse of M.G. by her natural father when she was an infant. The State argued that testimony as to these two matters should not be allowed because this evidence would not be probative of Monica’s truthfulness and would be prejudicial and confusing to the jury. MacKinnon pointed out that, as agreed, he did not question M.G. as to these matters. However, MacKinnon argued that he was entitled to cross-examine Monica as to these matters under the confrontation clause of the federal and Montana constitutions to prove her lack of credibility by revealing any possible motive, prejudice or bias that Monica might have.

¶10 The District Court ruled that under Rules 403 and 608, M.R.Evid., MacKinnon could not cross-examine Monica as to these two matters to establish her motivation because there was no contradictory statement to tie into and because even if this evidence had some probative value it was greatly outweighed by its prejudicial effect. However, the court ruled that MacKinnon could present expert testimony concerning matters of child sexual abuse to assist the jury in evaluating M.G.’s testimony. Furthermore, the court agreed that MacKinnon could argue in closing as to Monica’s motive, bias, and prejudice based on other facts in evidence, such as M.G.’s reluctance to testify and Monica’s desire to divorce MacKinnon. MacKinnon chose not to present expert testimony and called no witnesses before resting his case. However, in closing argument, MacKinnon did point [334]*334out the family’s troubled situation, Monica’s haste to report M.G.’s disclosures to the police as well as her haste to divorce MacKinnon.

¶11 On October 17, 1995, the jury returned a verdict of guilty to the charge of felony sexual assault against MacKinnon. Thereafter, the District Court conducted a sentencing hearing on March 6, 1996, and deferred MacKinnon’s imposition of sentence for six years, placing MacKinnon on probation subject to certain conditions. The District Court entered its written judgment on March 29, 1996. From this judgment and certain evidentiary rulings, MacKinnon appeals.

STANDARD OF REVIEW

¶12 Both issues MacKinnon raises on appeal concern the District Court’s evidentiary rulings made during his trial. We review a district court’s evidentiary rulings to determine whether the district court abused its discretion. State v. Anderson (1996), 275 Mont. 344, 347, 912 P.2d 801, 803 (citing State v. Pace (1995), 272 Mont. 464, 466, 901 P.2d 557, 559). A district court has broad discretion to determine whether evidence is relevant and admissible. Anderson, 275 Mont. at 347, 912 P.2d at 803. Therefore, absent a showing of abuse of discretion, we will not overturn a court’s evidentiary determination. Anderson, 275 Mont. at 347, 912 P.2d at 803.

DISCUSSION

¶13 At the outset, we note that MacKinnon’s appellate brief contains numerous assertions and exhibits which are not supported by or contained in the District Court record on appeal.

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Cite This Page — Counsel Stack

Bluebook (online)
1998 MT 78, 957 P.2d 23, 288 Mont. 329, 55 State Rptr. 331, 1998 Mont. LEXIS 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mackinnon-mont-1998.