Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bear Lake County. Hon. David C. Nye, District Judge.
The opinion of the court was delivered by: Lansing, Chief Judge
Judgment of conviction for two counts of sexual abuse of a child, vacated, and case remanded for new trial.
A jury found Scott Erickson guilty of two counts of sexual abuse of a child. Erickson appeals from the judgment of conviction, asserting numerous instances of prosecutorial misconduct during trial. He also argues that the district court erred in holding that the State did not make discriminatory use of peremptory challenges to exclude male jurors and erred in admitting improper character evidence. Erickson asserts that these errors individually and cumulatively deprived him of his right to a fair trial.
Erickson was charged with three counts of lewd conduct with a minor child under sixteen, Idaho Code § 18-1508, based upon allegations of sexual conduct with his stepdaughter, L.H., and his biological daughter, C.E., when each was about ten years old. A jury found him guilty of two counts of the lesser offense of sexual abuse of a minor, I.C. § 18-1506, and not guilty of the third count. Erickson contends on appeal that many errors, some objected to and some not, were made during his trial, including multiple instances of prosecutorial misconduct, errors in the admission of evidence, and the allowance of gender discrimination through the State‟s use of peremptory challenges to prospective jurors.
A. Error in Admitting Evidence of Nonpayment of Child Support
Erickson first contends that the district court erroneously admitted evidence that he was not paying child support after separation from his estranged wife, Tammy. Erickson called Tammy to testify regarding the volatility of their separation in an effort to support his defense that the children‟s allegations against him were prompted by Tammy or were otherwise simply a result of this very tempestuous relationship. Some of the testimony centered around a dispute between Erickson and Tammy over who should have possession of a truck. The evidence showed that Tammy took the truck from the residence of Erickson‟s parents, after which Erickson retrieved the truck with the assistance of a sheriff‟s deputy. On rebuttal, the State called Tammy as a witness and asked her to explain the circumstances of her taking the truck. The prosecutor asked, "Now at that time were you getting any child support?" Erickson objected that this called for improper character evidence. The prosecutor responded that he was just trying to show Tammy‟s "desperate need for a vehicle." The court overruled the objection, and Tammy responded that she was not receiving any child support. Erickson argues that the admission of this evidence was error.
We agree that this evidence should have been excluded because it was not relevant to any issue in the case. To be relevant, evidence must have a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Idaho Rule of Evidence 401. Whether evidence is relevant is a question of law that we freely review. State v. Sheldon, 145 Idaho 225, 228, 178 P.3d 28, 32 (2008). Whether Erickson was paying child support has no relevance to whether he committed the charged crimes. Even if Tammy‟s state of poverty had some marginal relevance to explain why she took the truck--a matter that was placed in evidence by Erickson--the testimony in question did not indicate that she was impoverished; it merely indicated that she had no income from Erickson. The district court erred by admitting this evidence.
B. Prosecutorial Misconduct
Erickson claims there were numerous instances of prosecutorial misconduct in the opening statement, closing argument, and evidentiary stages of his trial. Because we conclude that at least three of these claims are meritorious and, along with the evidentiary error discussed in Section A above, cumulatively constitute reversible error, we do not address the remaining instances of alleged prosecutorial misconduct.
The Idaho Supreme Court recently discussed the responsibility of prosecutors and the standard of review applied to appellate claims of prosecutorial misconduct:
As public officers, prosecutors have a duty to ensure that defendants receive fair trials. State v. Irwin, 9 Idaho 35, 43-44, 71 P. 608, 610-11 (1903). In carrying out this duty, a prosecutor must "guard against anything that would prejudice the minds of the jurors, and tend to hinder them from considering only the evidence introduced." Id. at 44, 71 P. at 611. A prosecutor must also ensure that the jury receives only competent evidence. State v. Christiansen, 144 Idaho 463, 469, 163 P.3d 1175, 1181 (2007). Under certain circumstances, a prosecutor‟s failure to fulfill these duties will result in reversal of the defendant‟s conviction. Id.
On appeal, the standard of review governing claims of prosecutorial misconduct depends on whether the defendant objected to the misconduct at trial. As a general rule, we will not consider arguments made for the first time on appeal. State v. Sharp, 101 Idaho 498, 503, 616 P.2d 1034, 1039 (1980). When the alleged error constitutes a fundamental error, however, review on appeal is permissible. State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971). Accordingly, when an objection to prosecutorial misconduct is not raised at trial, the misconduct will serve as a basis for setting aside a conviction only when the "conduct is sufficiently egregious to result in fundamental error." State v. Porter, 130 Idaho 772, 785, 948 P.2d 127, 140 (1997). Misconduct will be regarded as fundamental error when it "goes to the foundation or basis of a defendant‟s rights or . . . to the foundation of the case or take[s] from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive." State v. Bingham, 116 Idaho 415, 423, 776 P.2d 424, 432 (1989) (quoting State v. Garcia, 46 N.M. 302, 128 P.2d 459, 462 (1942)). "However, even when prosecutorial misconduct has resulted in fundamental error, the conviction will not be reversed when that error is harmless." ...