Frank Lind - Perjury / False Accusation / No Crime

Lind, Frank; CA; NRE: perjury/false accusation, no crime

2004 WL 1427134; Ct. of App. of CA 6/25/04; reversed, due to evidentiary error

"Sometime in 1999, Shirley R. moved to her father's farm in Sanger with her son Jacob L. Shirley's husband Greg moved to Sanger approximately a year later. Shortly after moving to Sanger, Shirley and Jacob met [Lind] when he arrived at the farm to retrieve a piece of farm equipment. Thereafter, [Lind] became a friend of the family. [Lind] helped Shirley refurbish some apartments owned by her father, worked on cars for Greg, and befriended Jacob."

"Shirley stated her father had become friends with [Lind] after moving to the farm. Greg baptized [Lind] into their church. Sometime after the baptism, [Lind] told Greg about his prior conviction. Greg stated that [Lind] told him he went to prison after a young boy had touched him. Greg did not share this information with Jacob. Greg recalled an incident where Jacob came and told him [Lind] touched his penis. Greg told Shirley, and Shirley called the sheriff's department. On one occasion, Greg discovered a pornographic videotape in Jacob's VCR.

"Greg recalled an incident where [Lind] arrived during a 'family thing' and Greg told [Lind] '[c]ontributing to the delinquency of a minor is a crime.' In making this statement, Greg was referring to the pornographic tape he found in Jacob's room. [Lind] left, but returned a short while later and grabbed Greg, put him in a headlock, and said he should throw him in the water. [Lind] told Greg that he 'ought to kill you right here, right now' which frightened Greg, but when Greg told [Lind] to '[g]et off' him, [Lind] complied.

"Greg stated he was aware Jacob's cousin, Andrew, made some sort of allegation against Jacob, but he did not become aware of the report until after [Lind] had been arrested.

"Jacob, who was 15 years old at the time of trial, testified that he met [Lind] while he was in the eighth grade. The two became friends, and Jacob would help [Lind] work on cars and motorcycles.

"In approximately June of 2000, when Jacob was 13 years old, [Lind] [supposedly] began molesting him. The first incident occurred in the pool at his house. Jacob stated that while he was sitting at the edge of the pool, [Lind] untied Jacob's shorts and grasped his penis. Later that day, while [Lind] and Jacob were sitting at a picnic table, [Lind] stated something to the effect of, 'You want to do it again?' or 'You want to feel something more?' and proceeded to place his tongue on Jacob's penis. Jacob went on to recount other instances of molestation. Although the jury convicted him of only this count of molestation we will briefly recount the other instances.

"On another occasion, while [Lind] and Jacob were in the trees near Jacob's house, [Lind]...orally copulated Jacob. Jacob ejaculated for the first time during this incident. Another incident occurred when [Lind] orally copulated Jacob while he was in [Lind's] truck at Acme Auto...Another instance occurred at [Lind's] home. [Lind] unzipped Jacob's pants and was going to orally copulate him, when Jacob told [Lind] to pay him $40 for five minutes. [Lind] agreed and proceeded to orally copulate Jacob for five minutes. When the five minutes were up, Jacob told [Lind] to stop, but he would not. Jacob told [Lind] he would start to scream if he did not stop, so [Lind] stopped. Jacob stated he asked for the money because [Lind] was going to do it anyway.

"Jacob recalled another incident at Acme Auto where [Lind] hosted a yard sale. Jacob went into the office and was sitting on a chair when [Lind] entered the room and orally copulated him."

"Jacob was aware that his cousin, Andrew, accused him of molestation, but denied he became aware of the report after he had reported [Lind's] molestation. Jacob denied any inappropriate behavior with Andrew.

"Jacob admitted giving [Lind] a letter on May 13, 2001, nine days before his allegation against [Lind], stating that he and his family would always be there for [Lind]. He admitted knowing [Lind] had previously been convicted of child molestation. Contrary to Shirley's testimony, Jacob stated his mother and grandfather told him about [Lind's] past a few weeks after meeting [Lind]."

"Twenty-six-year-old James L. testified that when he was 10 to 11 years old, [Lind] molested him. James lived next door to [Lind] and visited because [Lind] had things that interested him, such as a pinball machine, video games, junk food and pornographic magazines. Over the course of a year, [Lind] molested James over 20 times by fondling his penis. On one occasion, [Lind] molested James while they were working on a truck."

"Tim R. is Greg's brother. His stepson, Andrew, told him that Jacob molested him in August of 1999.* Tim reported the incident to the Fresno Police Department in May of 2001.** Tim told Greg of the allegation within a day or two of making the report."

[* The timeline here may prove important. Recall that, according to Jacob, Lind did not begin 'molesting' him until June of 2000, which would have been some ten months after Andrew alleged that Jacob molested him. Thus, 1) it cannot be argued that Jacob molesting Andrew (assuming it occurred) was somehow 'caused' by Lind's molestation of Jacob, and, 2) Andrew's allegation against Jacob may have given the latter a powerful motive to fasely accuse Lind of sexual abuse.]

[** Recall that Jacob's allegatons against Lind were made on May 22nd of 2001. Tim R. reported Andrew's allegations against Jacob that very same month.]

"[In his trial testimony, Lind] explained the events leading up to Jacob's allegation of molestation. On May 18, [Lind] took a motorcycle he was working on to Jacob's house to ride. Both Jacob and Matthew [Jacob's friend] were in the truck as he was transporting the motorcycle to the farm. On the way to the farm, the trio stopped for some chocolate milk and Twinkies. In the truck, [Lind] reached for a Twinkie and Jacob accused him of trying to grab his leg. Matthew, who was in the truck at the time, noted that [Lind] did not try to grab Jacob.

"When they got to the farm, Jacob was insistent on riding the motorcycle first. [Lind] told Jacob he wanted to test it first, and rode the motorcycle a short distance. When he returned, Jacob pushed him off the motorcycle and took it for a ride. [Lind] told Jacob not to go far, but Jacob left and was gone for a long time. When he returned, Jacob was angry and pushing the motorcycle. Apparently, the motorcycle was frozen and would not start. Jacob was very angry and accused [Lind] oif causing the motorcycle to fail. Jacob was swearing at [Lind] and Greg told Jacob to apologize. When he refused, Greg told [Lind] to take his motorcycle back and retrieve another one on the farm because Jacob did not deserve them. At that point, Jacob said, 'Why don't you tell him how he tried to touch me in the truck?' [Lind] denied trying to touch Jacob, and Greg became upset and went into the house. Jacob, who was still very angry, retrieved a pocket knife, and asked Matthew if he wanted to help him kill Greg. Matthew asked [Lind] to take him home, and [Lind] complied.

"The next day, a Sunday, [Lind] went to church. Jacob approached [Lind] and attempted to shake his hand, but [Lind] turned away; he did not want to speak with Jacob. Jacob apologized repeatedly and asked [Lind] if he could help him work on the motorcycle. [Lind] said no, but Jacob asked him repeatedly throughout the day, and [Lind] finally agreed.

"The next day, [Lind] picked up Jacob and took him to his house to work on the motorcycle. While they were working, Jacob said, 'You know, my mom said that, if. . .I ever said anything about you, you would go to prison for life.' [Lind] became very angry, and Jacob said he was only joking. A few minutes later, [Lind] got a telephone call, and Jacob wanted to know if it was his mother. When [Lind] said it was not, Jacob became angry. [Lind] told Jacob to leave and he did."

"In addition to his testimony, [Lind] presented a number of witnesses regarding Jacob's character for truthfulness.

"Peter Maskovich is a youth coordinator and knew Jacob through his church. Maskovich was a teacher's corum advisor for his church and had Jacob in his class...Maskovich stated Jacob lied consistently and that in his opinion Jacob was a liar. He further stated that Jacob had a reputation as a liar and exaggerator.

"Matthew D. testified that he knew both [Lind] and Jacob through his church. He and Jacob became friends and Matthew would do things with both [Lind] and Jacob. Matthew never witnessed any inappropriate behavior between [Lind] and Jacob.

"Matthew recalled an incident where [Lind] brought a motorcycle to Jacob's house, which broke while Jacob was riding on it. Jacob became angry with [Lind] and called him a child molester. Matthew was aware of [Lind's] prior convictions because Shirley had told him about them. Matthew had spoken with [Lind] regarding his prior convictions, and [Lind] never denied them.

"On another occasion, Matthew and Jacob were riding in [Lind's] truck. [Lind] reached for a cupcake and Jacob accused [Lind] of grabbing his leg. Matthew had observed the entire incident and noted that [Lind] did not grab Jacob's leg. A few weeks before [Lind] was arrested, Jacob told Matthew [Lind] orally copulated him. He made this statement in Lind's presence. Matthew did not believe Jacob's allegation.

"Matthew said Jacob treated [Lind] well when he wanted something, but treated [Lind] like 'crap' if he did not get his way. After [Lind] was arrested, Jacob told Matthew he 'need[ed] to help me put away [Lind] for good.' Matthew stated he would not put an innocent man in jail. Matthew stated he believed Jacob was a liar, and that he had a reputation as a liar."

"Janet D. is Matthew's mother...Janet stated that neither Shirley nor Jacob is a trustworthy person, and that Jacob had a reputation as a liar. In addition, Shirley has a reputation as being unstable.

"Ryan M. was a friend of Jacob until Jacob lied to him about things. Ryan stated Jacob could not be trusted."

"[Lind] contends the trial court erred in excluding two pieces of evidence. First, [Lind] sought to introduce evidence...that [Jacob] had engaged in sexual contact with Andrew in 1999. Counsel argued that Jacob testified during the preliminary hearing that he had gained his sexual knowledge solely from his contact with [Lind]. The defense sought to impeach this testimony with evidence that Andrew accused Jacob of sodomizing him in August of 1999...Although the incident allegedly took place two years prior, Andrew's allegation against Jacob arose shortly before Jacob accused [Lind] of molestation."

"During trial, [Lind] moved to introduce evidence that Jacob had forged checks belonging to [Lind] while [Lind] was in custody...[Lind] had retained a handwriting expert who was prepared to testify that the checks were written by Jacob."