Date: 08-31-2016

Case Style:

Case Number: 2016 MT 16N

Judge: Laurie McKinnon

Court: IN THE SUPREME COURT OF THE STATE OF MONTANA

Plaintiff's Attorney: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Leo J. Gallagher, Lewis and Clark County Attorney, Melissa Broch, Deputy County Attorney

Defendant's Attorney:

Julie Brown

Description: Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Neill Isaac Follette (Follette) appeals his conviction and sentence from the First
Judicial District Court, Lewis and Clark County. We affirm in part, reverse in part, and
remand.
¶3 On March 11, 2013, Follette’s wife contacted law enforcement with concerns that
Follette was sexually abusing her daughter, M.C.D., who is Follette’s stepdaughter and
was thirteen years old at the time. During a forensic interview Lewis and Clark County
Child Advocacy Center conducted on March 13, 2013, M.C.D. explained that Follette
had abused her four or five times over a period of several months. During a physical
examination conducted on March 21, 2013, M.C.D. described several instances where
Follette anally, vaginally, or orally sexually abused her. The State charged Follette by
information, filed on April 5, 2013, with felony Sexual Intercourse without Consent, a
violation of § 45-5-503(1), (3), MCA, and felony Sexual Assault, a violation of
§45-5-502(1), (3),(5)(a)(ii),MCA.
¶4 Before trial, the State filed a motion in limine asking the District Court to preclude
Follette from introducing evidence at trial of prior crimes, wrongs, or bad acts of any of
the State’s witnesses, including Follette’s wife. Follette objected to the State’s motion,
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stating that it was overbroad and would inhibit his right to present a defense, but failed to
make an offer of proof of the evidence he intended to offer. The District Court granted
the State’s motion in limine at trial. On October 23, 2013, a jury found Follette guilty of
both offenses and the District Court sentenced him to two concurrent terms of forty years
in prison with twenty years suspended. The District Court also ordered Follette to
reimburse the cost of a forensic interviewas part of his sentence.
¶5 Follette raises two issues on appeal. The first issue is whether the District Court
abused its discretion in granting the State’s motion in limine. A district court abuses its
discretion if it acts arbitrarily without the employment of conscientious judgment or
exceeds the bounds of reason, resulting in substantial injustice. State v. Wagner, 2013
MT 47, ¶ 14, 369 Mont. 139, 296 P.3d 1142 (citation omitted). A district court has
discretion to exclude relevant evidence if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
M.R.Evid. 403.
¶6 Here, Follette argues that, in granting the State’s motion in limine, the District
Court precluded him from introducing evidence that his wife had threatened him in the
past that she would publicly accuse him of molesting one of her children in order to keep
Follette from leaving her. This evidence, Follette asserts, would have supported his
assertion that M.C.D. fabricated the allegations against him because her mother told her
to. The District Court granted the State’s motion to exclude this evidence concluding it
was both more prejudicial than probative and “beyond the scope of the State’s case.”
Also, the District Court noted that Follette had been given several opportunities to
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provide an offer of proof, essentially to outline what specific prior crimes, wrongs, or bad
acts of his wife he wished to introduce at trial. Follette never provided an offer of proof.
Despite the lack of evidence introduced about his wife’s prior threats, Follette was still
able to argue, in his closing statement to the jury, that M.C.D. fabricated Follette’s abuse
at her mother’s behest. The District Court did not act arbitrarily and employed its
judgment reasonably in excluding Follette’s proposed evidence. We conclude the
District Court did not abuse its discretion in granting the State’s motion in limine.
¶7 The second issue Follette presents is whether the District Court erred in imposing
the cost of a forensic interview as part of his sentence. Item 52 of Follette’s sentence
states that the “defendant shall reimburse the Lewis and Clark County Child Advocacy
Center $500.” The court may require a convicted defendant in a felony case to pay costs,
limited to the expenses specifically incurred by the prosecution in connection with the
proceedings. Section 46-18-232(1), MCA. This statute has been interpreted to include
only costs incurred after the State files an information charging the defendant. State v.
Fertterer, 255 Mont. 73, 83, 841 P.2d 467, 473 (1992); overruled on other grounds by
State v. Gatts, 279 Mont. 42, 52, 928 P.2d 114, 120 (1996). M.C.D.’s forensic interview
was conducted on March 13, 2013, and Follette was charged by information filed on
April 5, 2013. Here, the State concedes that Follette was improperly sentenced under
§46-18-232(1), MCA, because his sentence required him to reimburse costs incurred
before he was charged. Because Follette was sentenced to reimbursing costs in violation
of § 46-18-232(1), MCA, the District Court imposed this portion of his sentencein error.
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¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. This appeal
presents no issues of first impression and does not establish new precedent or modify
existing precedent.

Outcome:

Affirmed in part, reversed in part, and remanded with instructions that the District Court vacate the portion of Follette’s sentence requiring reimbursement for a forensic interview conducted prior to the State’s charge against him.

Plaintiff's Experts:

Defendant's Experts:

Comments:

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