Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Gregory M. Culet, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
Judgment of conviction for lewd conduct with a minor, affirmed; judgment of conviction for sexual abuse of a minor, vacated.
Jeffrey Alan Truman appeals from his convictions, following a jury trial, for lewd conduct with a minor under sixteen and sexual abuse of a minor. For the reasons set forth below, we affirm the judgment of conviction for lewd conduct with a minor, and vacate the conviction for sexual abuse of a minor. I.
Truman was indicted for lewd conduct with a minor under sixteen years old, Idaho Code § 18-1508, based on an allegation of oral sexual contact between Truman and his fourteen-year-old stepdaughter, T.S., and sexual abuse of a minor, I.C. § 18-1506(a), based on the allegation that Truman solicited T.S. to participate in a sexual act by asking her to film a sexual act between Truman and J.R., a young woman who was a family friend. The state alleged that the conduct giving rise to the sexual abuse charge occurred at some point between August 2006 and December 2006, and the conduct giving rise to the lewd conduct charge occurred on December 5, 2007.
Prior to trial, the state filed a motion in limine seeking to admit evidence of prior bad acts under Idaho Rule of Evidence 404(b), specifically evidence of prior uncharged sexual contacts between Truman and T.S. and between Truman and J.R. that were witnessed by T.S. Truman filed a motion in limine seeking to limit the testimony and evidence at trial to the allegations actually set forth in the indictment and further sought an order precluding the state from eliciting testimony regarding the alleged diminished mental capacity of J.R. At a hearing on the motions, the district court allowed admission of the prior bad acts evidence proffered by the state and also found that evidence of the mental capacity of J.R. was irrelevant and thus not admissible.
At trial, T.S. testified as to the acts giving rise to the charges, as well as the prior sexual acts the court had admitted under I.R.E. 404(b), and J.R. testified as to sexual acts between her and Truman, some of which had also involved T.S. The jury found Truman guilty as charged, and he was sentenced to thirty years imprisonment with twenty years determinate on the lewd conduct charge and fifteen years imprisonment with ten years determinate on the sexual abuse of a minor charge, with the sentences to run concurrently. Truman now appeals.
A. Sexual Abuse of a Minor
Truman contends that his conviction for sexual abuse of a minor should be vacated because there was insufficient evidence to support the conviction and because the facts alleged in the indictment failed to support the charge of sexual abuse of a minor under the version of the sexual abuse statute in effect at the time. The state concedes that the facts alleged in the indictment--as well as the facts proved at trial--were insufficient to sustain the sexual abuse conviction because they only alleged that Truman requested that T.S. videotape him and J.R. engaging in a sexual act while the statute at the time required proof that the defendant requested that the minor victim participate directly in the sexual contact.*fn1 Accordingly, we vacate Truman's conviction for sexual abuse of a minor.
B. Prior Bad Acts Evidence*fn2
Truman contends the district court erred in admitting evidence of uncharged sexual activity between himself and T.S. and between himself and J.R., because the court's decision to admit the evidence was based on "an erroneous understanding that there were relaxed standards of admissibility for this evidence in cases where the defendant is charged with a sexual offense against a minor." Additionally, in regard to evidence of sexual activity between Truman and J.R., Truman also asserts that the evidence was erroneously admitted because it was found to be relevant only to the charge of sexual abuse of a minor, which the state now concedes to be invalid, and because under I.R.E. 403, the prejudice of the evidence outweighed any probative value.*fn3
Evidence of other crimes, wrongs, or acts is not admissible to prove a defendant's criminal propensity. I.R.E. 404(b); State v. Needs, 99 Idaho 883, 892, 591 P.2d 130, 139 (1979); State v. Winkler, 112 Idaho 917, 919, 736 P.2d 1371, 1373 (Ct. App. 1987). However, such evidence may be admissible for a purpose other than that prohibited by I.R.E. 404(b). State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct. App. 2002). In determining the admissibility of evidence of prior bad acts, the Supreme Court has utilized a two-tiered analysis. The first tier involves a two-part inquiry: (1) whether there is sufficient evidence to establish the prior bad acts as fact; and (2) whether the prior bad acts are relevant to a material disputed issue concerning the crime charged, other than propensity. State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185, 1188 (2009). We will treat the trial court's factual determination that a prior bad act has been established by sufficient evidence as we do all factual findings by a trial court. We defer to a trial court's factual findings if supported by substantial and competent evidence in the record. State v. Porter, 130 Idaho 772, 789, 948 P.2d 127, 144 (1997). In this case, Truman does not challenge the existence of the prior bad act as an established fact. Therefore, we address only the second part of the first tier--the relevancy determination. Whether evidence is relevant is an issue of law. State v. Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 (Ct. App. 1993). Therefore, when considering admission of evidence of prior bad acts, we exercise free review of the trial court's relevancy determination. Id.
The second tier in the analysis is the determination of whether the probative value of the evidence is substantially outweighed by unfair prejudice. Grist, 147 Idaho at 52, 205 P.3d at 1188. When reviewing this tier we use an abuse of discretion standard. Id. When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion;
(2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
In deciding to admit the evidence, the district court stated:
[W]e have a sort of separate line of cases and authority not just from the Idaho Supreme Court and Court of Appeals, but all over the United States, including in federal court over the standards that apply to 404(b) standards in sex offense cases of children.
. . . . . . . I think the notice by the state is sufficient for the state to generally present evidence from the victim and/or corroboration from other sources of this event that occurred when she was approximately 11 and the events that occurred later. . . .
. . . that helps to establish in addition to corroborating the victim, motive, opportunity, intent, preparation, in terms of preparing the victim, and other aspects of 404(b), as well as corroborate the victim's testimony. So I'm going to allow that.
At trial, T.S. testified that Truman had initially approached her when she was twelve years old. She explained that he came into her bedroom and told her that if she was ever "curious" about anything, ever wanted to "try anything," know what any body parts were, or how to do something, that he was "there for [T.S.] to experiment with." He also told her that he had been having oral sex with J.R. and that T.S. could do the same with him as well. T.S. further testified that later that night, Truman told her not to tell anyone about their conversation because she would look "stupid" and that no one would believe her.
T.S. testified that no sexual contact occurred between them until approximately a year later (in 2006), when Truman requested that T.S. videotape him having oral sex with J.R. T.S. refused, but watched as J.R. and Truman performed oral sex on each other. T.S. then stated that later that evening, Truman approached her and J.R. in T.S.'s bedroom and that at his request J.R. and T.S. performed oral sex on Truman.
T.S. also testified that similar incidents--both with J.R. and with T.S. alone--continued to occur, occasionally in the beginning but became increasingly frequent over time until it was happening three to four times a week. She also noted that during some incidents Truman would have pornography playing on the television in the background and that Truman had showed her pornography on the Internet.
T.S. also testified that Truman would grant her favors such as giving her money, letting her drive the family vehicles, buying her items, allowing her extra time on the computer, or taking her to work when she acquiesced to his sexual demands, but would withhold privileges when she did not. She testified that one incident had involved genital to genital contact between the two.
In relevant part, J.R. testified that she had seen Truman's genitals while in the presence of T.S., that Truman had been watching pornography at the time, and that she had performed oral sex on Truman while T.S. was ...