Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia County. Hon. Michael R. Crabtree, District Judge.
The opinion of the court was delivered by: Perry, Judge
Judgment of conviction for lewd conduct with a minor under the age of sixteen, affirmed.
Aristeo Gomez appeals from the judgment of conviction entered upon a jury verdict finding him guilty of lewd conduct with a minor under the age of sixteen, Idaho Code § 18-1508. He contends that the district court improperly admitted evidence relating to uncharged sexual misconduct. We affirm.
I.n FACTS AND PROCEDURAL BACKGROUND
In 2004, then fifteen-year-old V.B. was living with her mother, F.B., and her mother‟s boyfriend,*fn1 Gomez, in Gomez‟s house in Burley. While V.B.‟s mother was gone on vacation, V.B. awoke early one morning to Gomez touching her, over her clothes, on her breasts, buttocks, and vagina. V.B. told him to stop, and Gomez offered her one hundred dollars, as well as some clothes, to sleep with him. V.B. told Gomez to get out of her bedroom, and Gomez gave her twenty dollars, which V.B.‟s mother had told him to give her, for both her and her brother, and then left the room. V.B. locked her door and went back to sleep. V.B.‟s sixteen-year-old brother was sleeping in the same bed with her, but he did not wake up. V.B. did not wake her brother to tell him what had happened, nor did she tell anyone else about the incident because it was "embarrassing." V.B. also stated that she did not tell her mother because Gomez had previously told V.B. that her mother would not believe her, that "no one would believe [her]."
Sometime after this incident, while V.B. was alone in her bedroom talking on the phone with her boyfriend, Gomez tried to get into her bedroom. V.B. told her boyfriend not to hang up on her. When her boyfriend inquired as to why he should not hang up, she related some concerns about Gomez and told him that Gomez was trying to get into her room. V.B.‟s boyfriend told her brother about the incident, and her oldest sister, E.B., also learned what had happened. In January 2006, V.B. and her sisters met together and discovered that Gomez had sexually abused each of them. They approached their mother, F.B., with the allegations, and she told them they would talk about it later. F.B. testified at trial that she did not believe them. However, V.B. and her sisters went to E.B.‟s residence where they called the police and submitted written statements regarding the abuse. Gomez was arrested and subsequently charged with lewd conduct with a minor under the age of sixteen.
Prior to trial, the State filed a notice of its intent to introduce evidence of other crimes, wrongs, or acts as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident pursuant to Idaho Rule of Evidence 404(b), attaching the written statements of V.B., as well as her sisters, E.B., M.A.R.B., S.B., and M.L.B. The statements indicated that Gomez had sexually abused V.B. and her sisters. The State filed a second notice of its intent to introduce Rule 404(b) evidence, attaching the written statement of C.G., a friend of V.B., as well as related police reports. Gomez filed an objection to the State‟s intent to use Rule 404(b) evidence, as well as a motion in limine to exclude such evidence from trial.
At a hearing held on Gomez‟s motion, he argued that the evidence was not relevant to any issue other than character or propensity and that its prejudice outweighed its probative value. The district court denied the motion, relying upon State v. Phillips, 123 Idaho 178, 845 P.2d 1211 (1993), but admonished the State that it would not be allowed to mention any unchargedsexual misconduct unless an offer of proof was made to the court as was required in the Phillips case. While the parties and the court indicated that a hearing would be held to entertain the State‟s offer of proof, the record is unclear as to whether this occurred. Each of the State‟s proposed witnesses included in the notices did, however, testify at trial regarding uncharged sexual misconduct.
In addition to testifying regarding the charged conduct, V.B. also testified that Gomez had touched her on her breasts, buttocks, and vagina on previous occasions. She stated that the touching began when she was about twelve or thirteen when Gomez and her mother were living in "Paul Housing." She testified that she would spend the night there on weekends and during the summer. V.B. stated that, on one occasion, she was taking a shower and Gomez unscrewed the doorknob and tried to get into the bathroom. She also testified that Gomez would make inappropriate comments about her vaginal area, saying it was hairy; that he would walk around in a towel or his underwear; and that he would expose himself to her when he would get out of the shower.
Each of V.B.‟s full sisters also testified regarding similar incidents occurring with Gomez. V.B.‟s oldest sister, E.B., testified that Gomez abused her from the time she was twelve until she moved out of the house when she was approximately eighteen years old. She testified that the first incident occurred when her mother and Gomez were living in a house in Rupert. She stated, "[Gomez] grabbed me and hugged me really tight, and he told me that he wanted to be with me." She testified that she understood that to mean Gomez wanted to sleep with her. She also testified that she thought Gomez offered her money, but that she did not remember how much. She stated no one saw the incident because they were upstairs, and she did not tell anyone because she was embarrassed.
E.B. testified that while staying at the house in Rupert, Gomez would touch her in the middle of the night. She stated that, on one occasion, she woke up to him next to her in bed touching her breasts. She testified that she told Gomez to get out of her bed, and he "grabbed his private part . . . and kind of showed it off and walked away." She testified that her mother was sleeping in the bed next to her and her brothers and sisters were sleeping in the bed with her, but she was sleeping on the edge. She stated that she would sleep in between her siblings so that Gomez could not get to her, but that sometimes she would still sleep on the edge. She testified that the touching continued while in Rupert and then when her mother and Gomez moved to Paul Housing. E.B. stated that while in Paul Housing, she would often wake up to Gomez touching her, both over and under her clothing, on her breasts and between her legs. E.B. also testified that Gomez walked in on her while she was taking a shower and opened the curtain. Whenever E.B. threatened to tell her mother about Gomez‟s actions, he would respond, "No, you‟re not going to tell her."
Another sister, M.A.R.B., who is approximately two years younger than E.B. and approximately two and one-half years older than V.B., also testified that Gomez abused her until she moved out of the house at the age of sixteen. She testified that Gomez "always tried to touch me" and related one incident where Gomez grabbed her breasts after her mother had left the house to sell tamales. She stated that on another occasion, she was sleeping on the side of the bed next to one of her siblings and awoke to find her pants and underwear pulled down from the front, and Gomez touching her. M.A.R.B. testified that when she told Gomez not to touch her, he asked where E.B. had gone. She told him to leave her alone, and he ultimately left. She testified that on another night, she and E.B. were asleep and she woke up to Gomez touching E.B.‟s breast. M.A.R.B. also testified that Gomez watched her taking a bath through a hole in the door because the doorknob was missing. She stated that she never told anyone because it was embarrassing. M.A.R.B. also testified that she did not tell her mother about any of the incidents because Gomez told her he would say it was her fault and that she was lying.
S.B., V.B.‟s younger sister, also testified that Gomez began abusing her when she was eleven or twelve, and that the first incident occurred when she was passing Gomez in the kitchen. S.B. stated that Gomez grabbed her and touched her, over the clothes, on her vagina when she walked by him. She testified that no one saw the touching and she did not tell anyone because she was embarrassed. S.B. also stated that she woke up early one morning to Gomez touching her. She testified that Gomez had pulled his pants down, as well as hers, and that he touched his penis against her vagina. She stated that she started to cry and he said, "Come on. I‟ll give you $2." She continued to cry, so Gomez got up, and she put her pants on and ran out. S.B. testified that Gomez had also touched her on other occasions and tried to get into the bathroom and grab her when she sent her sister to get a towel for her. S.B. testified that she told Gomez she was going to tell her mother, to which he responded, "Go ahead and tell her. She won‟t ever believe you."
M.L.B., V.B.‟s youngest full sister, testified that Gomez abused her for the first time while she was watching television in the living room at the age of eleven. M.L.B. stated that Gomez came up to her while she was sitting on the couch and started grabbing her breasts and tried to touch her in between her legs. She stated that she told him to stop and then left to join her half-siblings outside. She testified that another incident occurred while she was sleeping in her mother‟s room. She stated that she woke up to Gomez touching her, and she thought he had been touching her breasts and in between her legs because her bra and her pants were undone. She testified that her half-siblings were sleeping in the same bed, but they did not wake up. M.L.B. also testified that Gomez came into the bathroom while she was taking a shower. M.L.B. also stated when she told Gomez that she was going to tell her mother, he told her that her mother would not believe her.
C.G., a friend of V.B.‟s, also testified at trial. She testified that when she was thirteen or fourteen, she spent the night with V.B. at Gomez‟s house in Burley. She stated that she was sleeping on a mattress with V.B. and woke up to Gomez touching her vagina over her clothing.
In addition to Gomez‟s motion in limine to exclude Rule 404(b) evidence, he also requested a continuing objection prior to E.B.‟s testimony. The court acknowledged the objection and stated that it would continue to overrule it based upon the Phillips opinion. However, the court did give a limiting instruction stating that the jury was not to infer a "pattern of behavior" from E.B.‟s testimony, but that it went to V.B.‟s credibility. Gomez again renewed his objection prior to the jury hearing testimony from M.A.R.B., S.B., and C.G, and prior to his cross-examination of M.L.B. The court gave a limiting instruction following each objection, generally instructing the jury that any other wrongs or acts, if believed, were not to be considered as evidence of Gomez‟s character or any propensity to commit such acts and could only be used for the limited purposes of proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The jury was similarly instructed in the final jury instructions.
The jury found Gomez guilty of lewd conduct with a child under the age of sixteen. The district court entered a judgment of conviction and imposed a unified sentence of twenty years, with ten years determinate. Gomez appeals.
Gomez contends that the district court erred by improperly admitting evidence of uncharged sexual misconduct in the form of testimony from E.B., M.A.R.B., S.B., M.L.B., and C.G.*fn2 He argues that the evidence was not relevant to a material and disputed issue other than propensity. Evidence of other crimes, wrongs, or acts is not admissible to prove a defendant‟s criminal propensity. I.R.E. 404(b); State v. Johnson, 148 Idaho 664, 667, 227 P.3d 918, 921 (2010); 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). Such evidence is relevant only if the jury can reasonably conclude the act occurred and the defendant was the actor. Id. 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. State v. Parmer, 147 Idaho 210, 214, 207 P.3d 186, 190 (Ct. App. 2009). 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); Parmer, 147 Idaho at 214, 207 P.3d at 190. 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).
Gomez contends that the district court did not make the required determination, as set forth in Grist, that there was sufficient evidence to establish the prior bad acts as fact. He argues that while a hearing was scheduled for the State to make its offer of proof, there is no record that such a hearing occurred and, as such, this Court cannot review whether the district court made the requisite finding. He asserts that the court erred because it failed to make the requisite finding on the record.
While Gomez argues that the court was required to make a specific finding, on the record, as to whether a jury could reasonably conclude that the prior acts occurred and that the defendant was the actor, such a procedure is not always required. This Court recently addressed a similar argument in Cooke v. State, 149 Idaho 233, 233 P.3d 164 (Ct. App. 2010). In that case, this Court clarified that the district court is only required to make a specific articulation as to whether the prior conduct occurred if that question is squarely at issue. Cooke, 149 Idaho at 240, 233 P.3d at 171. If the question is at issue, a specific articulation is necessary for the determination of relevance. Id. Gomez did not argue below that the other crimes, wrongs, or acts did not occur; rather, he argued that they were not relevant to any issue other than propensity and that the prejudice of that evidence outweighed its probative value. As such, the court was ...