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State of Idaho v. Joseph Everett Perry

December 7, 2010

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
JOSEPH EVERETT PERRY, DEFENDANT-APPELLANT.



Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John P. Luster, District Judge.

The opinion of the court was delivered by: Chief Justice Eismann

Boise, September 2008

2010 Opinion No. 130

Filed:

Stephen W. Kenyon, Clerk

SUBSTITUTE OPINION. THE COURT'S PRIOR OPINION DATED JULY 23, 2010 IS HEREBY WITHDRAWN.

District court conviction and sentence, affirmed.

BURDICK, Justice

Appellant Joseph E. Perry was convicted of two counts of sexual battery of a child under the age of sixteen, for acts against T.P., and two counts of misdemeanor battery for acts against H.P. Perry asks us to reverse his conviction based on several alleged errors committed during trial, including the exclusion of I.R.E. 412 evidence offered to impeach T.P.'s allegations against Perry, the exclusion of I.R.E. 613 evidence offered to impeach the foster mother's testimony, and various acts of prosecutorial misconduct. Perry argues that these errors, individually, are either fundamental and/or not harmless. Alternatively Perry contends that even if each error is individually found to be harmless, in the aggregate they constitute reversible error under the cumulative error doctrine.

We hold that the evidence proffered by Perry was properly excluded. In addition, we hold that the trial court properly sustained the only objection made at trial that pertained to prosecutorial misconduct, and the unobjected to acts of prosecutorial misconduct do not rise to the level of fundamental error. Finally, we find that the cumulative error doctrine is inapplicable as Perry did not preserve any error for consideration on appeal. Therefore, we affirm Perry's conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

From February to April, 2005, while T.P. (age 11) and H.P. (age 13) were living in foster care, Appellant Joseph E. Perry started taking the girls for overnight visits at his home in an attempt to reunite with his two daughters. Later that June, T.P. and H.P. revealed to their foster mother that Perry had occasionally invited one girl to sleep with him during these visits, and while the girl was lying in bed facing away from her father, Perry moved against her and rubbed his penis against the girl's back or buttocks in an up and down motion. Based on these allegations Perry was charged with four counts of lewd and lascivious conduct with a minor under sixteen years old, I.C. § 18-1508.

Before trial, Perry filed a motion in limine to present testimony/evidence that T.P. made a prior false allegation of a sex crime against H.P., i.e., that in 2004, T.P. had made statements, which were subsequently partially retracted, that H.P. touched T.P.'s breasts twice and sprayed T.P.'s genitals with a shower head during a family camping trip. The incident was reported to the girls' social worker, but after investigation, the Idaho Department of Health and Welfare (Department) determined that no further action was necessary.

At trial, the prosecutor called the foster mother as her first witness. Without objection from defense counsel, the prosecutor asked the foster mother whether the girls had ever been dishonest with her. She replied that they had, but only about ―normal kid stuff.‖ Later, on redirect examination, the prosecutor asked the foster mother to specify what types of things the girls had lied about in the past. Again, the foster mother indicated relatively minor things, such as messes in the house. Defense counsel made a tactical decision to not object to this testimony in order to lay the foundation for the I.R.E. 412 evidence. On re-cross-examination, defense counsel asked the foster mother if she recalled T.P.'s statements regarding the 2004 camping incident, and whether the foster mother considered that more than a minor thing. Before the foster mother could answer, the prosecutor objected to defense counsel's line of questioning. The district court sustained the objection, but indicated that admissibility of the I.R.E. 412 evidence could be addressed later in the trial.

Before T.P. took the stand, defense counsel reasserted his request to present the I.R.E. 412 evidence to impeach T.P.'s allegations against Perry. The report detailing T.P.'s allegations against H.P. stated that H.P. had grabbed T.P.'s breasts twice and placed a shower head on T.P.'s genitals and buttocks, and defense counsel quickly focused the district court's attention on the incident with the shower head. Defense counsel argued that because the shower spraying incident between the girls constituted a ―sex crime‖ under I.R.E. 412(e)(2), and therefore T.P.'s later retraction of her statement -- that H.P. did not stop spraying when asked -- placed the evidence under the purview of I.R.E. 412(b)(2)(C) as a prior false allegation of a sex crime. The district court agreed with defense counsel that the shower spraying incident theoretically constituted a ―sex crime,‖ but noted that it was a ―real stretch.‖ However, after determining the evidence's probative value was ―about zip‖ for I.R.E. 412 purposes, the district court held that the probative value was outweighed by the danger of allowing extraneous issues to come before the jury. The court also concluded that the jury's consideration of the evidence would be a waste of trial time. As such, the district court excluded the evidence under I.R.E. 412.

Defense counsel also sought to introduce this evidence under I.R.E. 613 to impeach the foster mother's testimony. Defense counsel argued that evidence demonstrating T.P. had made a prior false allegation of a sex crime against H.P., and the foster mother's documented concern that T.P. had lied or exaggerated about the shower spraying incident, was inconsistent with her trial testimony that T.P. had only lied about ―normal kid stuff.‖*fn1 Although the district court acknowledged that the prosecutor had impermissibly opened the door to this line of questioning, the court also determined further evidence on the issue would be unhelpful to the jury and would waste trial time. Accordingly, the district court held the evidence inadmissible under I.R.E. 403.

Later, the prosecutor called the foster father to testify. This time, defense counsel initiated questioning about the girls' truthfulness during cross-examination. However, on redirect, the prosecutor continued with her theme of eliciting vouching testimony by asking the foster father if he noticed any signs of dishonesty on the girls' faces when they told him what had happened with Perry, to which the foster father replied ―no.‖ Defense counsel neither objected to the prosecutor's line of questioning, nor did he conduct re-cross-examination of the foster father.

Next, the prosecutor presented the testimony of Scott Teneyck, the investigating officer who interviewed T.P. and H.P. regarding their allegations against Perry. After the prosecutor asked a series of questions that established Teneyck's training and experience in interviewing children, and elicited testimony regarding the signs children typically give off during interviews which indicate that they are being untruthful, the prosecutor went on to inquire about Teneyck's interviews with T.P. and H.P. First, the prosecutor asked the Teneyck for his opinion as to whether T.P. was being truthful when she reported her allegations against Perry. Teneyck replied that he saw no indication of untruthfulness during his interview with T.P. When the prosecutor asked the same question regarding H.P., defense counsel objected before Teneyck could answer. The district court sustained the objection, noting that the prosecution was attempting to vouch for the girls' credibility and it was up to the jury to decide whether or not the girls were telling the truth.

Nevertheless, during closing argument the prosecutor referred to testimony from the foster mother, the foster father, and the officer that vouched for the girls' credibility. On four separate occasions, either directly or indirectly, the prosecutor reiterated that these witnesses believed the girls' allegations. Once again, defense counsel did not object to any of the prosecutor's statements.

The jury found Perry guilty of two counts of sexual abuse of a child under sixteen years of age, for acts against T.P., and two counts of misdemeanor battery, for acts against H.P. The district court sentenced Perry to two concurrent fifteen-year terms, with five years determinate, for the two counts of sexual abuse, and two concurrent 180-day terms for the two counts of battery. Perry appealed and the Court of Appeals affirmed his conviction. This Court granted Perry's Petition for Review.

II. STANDARD OF REVIEW

―On review of a case from the Court of Appeals, this Court gives due consideration to the Court of Appeals' decision, but directly reviews the decision of the trial court.‖ State v. Clements, 148 Idaho 82, __, 218 P.3d 1143, 1145 (2009) (quoting State v. Bishop, 146 Idaho 804, 810, 203 P.3d 1203, 1209 (2009)).

III. DISCUSSION

A. Prior False Allegation of a Sex Crime under I.R.E. 412

Perry argues that the district court abused its discretion in excluding evidence that T.P. made a prior false allegation of a sex crime against H.P. under I.R.E. 412 to impeach T.P.'s accusations against Perry. We agree with the district court's determination that Perry's proffer of I.R.E. 412 evidence was limited to the shower spraying incident between the girls, but disagree with the district court's interpretation that the incident constituted a ―sex crime‖ under

I.R.E. 412(e)(3). We affirm the district court's exclusion of the evidence. 1. The district court did not abuse its discretion in limiting the I.R.E. 412 evidence to the shower spraying incident between T.P. and H.P.

At the onset, we must address Perry's claim that the district erred in limiting its ruling on the admissibility of the I.R.E. 412 evidence to the shower spraying incident between the girls. Perry argues that it is clear from his I.R.E. 412 notice that he also sought to introduce evidence that T.P. had falsely accused H.P. of touching her breasts in 2004. Specifically, Perry directs us to the Department's Narrative Summary Report attached to his I.R.E. 412 motion, which details the reporting and investigation of T.P.'s allegations against H.P. The report states that, in 2004, T.P. accused H.P. of spraying T.P.'s genitals with a shower head and grabbing T.P.'s ―boobies‖ twice during a family camping trip. The report later contains an entry documenting the foster mother's concern that T.P. either embellished or lied about the incident. Perry argues that these two entries read together demonstrate that T.P. lied about H.P. touching her breasts.

The admissibility of I.R.E. 412 evidence is determined solely from the basis of the I.R.E. 412 hearing. See I.R.E. 412(c)(2)-(3). Under I.R.E. 412, evidence of a victim's past sexual behavior is generally inadmissible. I.R.E. 412(a)-(b). A defendant seeking to introduce evidence regarding a sex-crime victim's past sexual behavior is required to submit a written offer of proof from which the trial court determines if that evidence falls within the limited exceptions for admissibility. I.R.E. 412(c)(2). In other words, the trial court determines whether it will even consider the admissibility of the evidence based upon the written offer of proof. If the trial court determines that an I.R.E. 412 hearing is warranted, the evidence's admissibility is determined from the basis of that hearing alone. I.R.E. 412(c)(3). Perry cannot now rely on any other supposed ―false allegations‖ contained in his I.R.E. 412 notice that defense counsel did not also include in his argument during the I.R.E. 412 hearing.

Upon review of the I.R.E. 412 hearing transcript, it is clear that evidence of T.P.'s prior false allegation was limited to the shower spraying incident. There was no evidence presented at the hearing that T.P. lied about H.P. touching her breasts twice during the 2004 camping trip. In fact, defense counsel quickly pulled the district court's attention away from this allegation and instead focused the court's attention on the shower spraying incident.*fn2 Furthermore, when the district court asked if the ―false allegation‖ was whether H.P. stopped spraying when T.P. protested, defense counsel stood by and said nothing. If this was not the only false allegation defense counsel sought to present, he should have corrected the court at that time. Thus, from the proceedings of the I.R.E. 412 hearing, we agree with the district court that Perry's proffer of evidence regarding T.P.'s prior false allegation of a sex crime against H.P. was limited to the shower spraying incident and whether H.P. stopped spraying when T.P. protested.

2. The shower spraying incident between T.P. and H.P. did not constitute a ―sex crime‖ under I.R.E. 412(e)(2).

Although neither side raises the issue on appeal, we exercise free review over whether the shower spraying incident between the girls constituted a false allegation of a ―sex crime‖ under

I.R.E. 412(b)(2)(C). In order to present evidence of a false allegation of a ―sex crime‖ as the term is defined under I.R.E. 412(e)(2), the defendant must first identify a separate crime under Idaho law that the incident falls under. Here, defense counsel failed to specifically identify the underlying crime. Instead, defense counsel read the definition of ―sex crime‖ under I.R.E. 412(e)(2) verbatim. Defense counsel explained that the rule requires that the alleged sex crime fall under a separate crime in Idaho, and then went on to say that H.P. made contact with T.P.'s genitals, both in front and back, without her consent. Although defense counsel never specifically stated that the underlying crime was battery, the district court determined that ―theoretically‖ the shower spraying incident could constitute a battery that involved the genitals of another person. Because the district court was able to discern that the underlying crime was battery, we find that defense counsel in essence laid the proper foundation for the proffer of I.R.E. 412 evidence.

However, despite that proper foundation, the shower spraying incident between H.P. and T.P. clearly did not constitute a ―sex crime.‖ As originally adopted in 1985, I.R.E. 412 did not include the term ―sex crime.‖ ―Sex crime‖ was added in 1986 and defined as ―rape, attempted rape, assault with the intent to commit rape or the infamous crime against nature, battery with the intent to commit rape or the infamous crime against nature, or kidnapping for the purpose of committing rape or the infamous crime against nature.‖ I.R.E. 412(e)(2) (1986). This definition was amended in 1997 after the Evidence Rules Committee determined that the original definition of ―sex crime‖ did not encompass many of the more modern sexual abuse crimes defendants were being charged with. Agenda for the 1996 Annual Meeting of the Evidence Rules Comm. at

1. As part of the amendment the committee added the ―catchall‖ provision of I.R.E. 412(e)(2), which defines ―sex crime‖ as ―any other crime under the law of the state of Idaho that involved; contact, without consent, between any part of the defendant'sbody or an object and the genitals or anus of another person; or contact, without consent, between the genitals or anus of the defendant and any part of another person's body.‖ I.R.E. 412(e)(2). This language was taken from Rule 413 of the Federal Rule of Evidence which governs the admissibility of evidence of similar crimes in federal sexual assault cases. See Agenda for the 1996 Annual Meeting of the Evidence Rules Comm. at 2. Federal Rule of Evidence 413(a) reads: ―In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.‖ (Emphasis added). For purposes of F.R.E. 413, ―offense of sexual assault‖ is defined as ―a crime under federal law or the law of a state that involved . . . contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person.‖ F.R.E. 413(d)(2) (emphasis added). Thus, the word ―defendant‖ in F.R.E. 413(d)(2)-the provision that I.R.E. 412(e)(2) mirrors-refers to the defendant charged with the underlying offense.

Based on the history of I.R.E. 412(e)(2) listed above, we hold that the shower spraying incident between T.P. and H.P. does not fall within the definition of ―sex crime.‖ In order to constitute a ―sex crime,‖ the contact must involve either the body of, or an object held by the defendant charged with the underlying offense and the genitals or anus of another person. See

I.R.E. 412(e)(2). Because Perry -- and not H.P. -- is the defendant charged with the underlying sex crime in this case, the shower spraying incident between T.P. and H.P. does not fall within the definition of ―sex crime‖ under I.R.E. 412(e)(2). As such, we need not determine whether

T.P.'s partial retraction of her allegations against H.P. constituted a ―false allegation‖ under

I.R.E. 412(b)(2)(C).

3. The district court did not abuse its discretion in excluding Perry from offering evidence of T.P.'s alleged false allegation regarding the shower spraying incident in order to impeach T.P.'s accusations against Perry.

Perry contends that the district court abused its discretion by failing to give enough weight to the evidence of T.P.'s prior false allegation of a sex crime against H.P. We disagree.

The trial court's judgment concerning admission of evidence shall ―only be disturbed on appeal when there has been a clear abuse of discretion.‖ State v. Gleason, 123 Idaho 62, 65, 844

P.2d 691, 694 (1992). See also State v. Watkins, 148 Idaho 418, __, 224 P.3d 485, 488 (2009). In determining whether a trial court has abused its ...


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