Appeal from the District Court of the Fourth Judicial District, State of Idaho, Elmore County. Hon. Cheri C. Copsey, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
Judgment of conviction for two counts of rape, affirmed in part and reversed in part.
Russell G. Jones appeals from the judgments of conviction entered upon jury verdicts finding him guilty of two counts of rape. For the reasons set forth below, we affirm in part and reverse in part. More specifically, we uphold the conviction in regard to Count I and vacate the conviction in regard to Count II.
Jones, A.S., and Craig Carpenter had been friends for approximately fifteen years in the spring of 2008. A.S. and Carpenter were engaged and had children together. However, unbeknownst to Carpenter, Jones and A.S. had been having a sexual relationship for approximately four years. On May 22, 2008, after spending the night alone together in Jackpot, Nevada, Jones and A.S. returned to A.S.'s apartment--deciding on the drive back to Idaho they should end their affair. However, the next morning they engaged in consensual sex. Afterwards,
A.S. went to the bathroom and when she returned to the bedroom Jones was on the computer looking at pornographic material. He sat down on the bed next to her and began to touch her.
A.S. reacted by telling Jones, "[I] thought we had decided that the time before that was the last time and it wasn't going to happen anymore." Jones stopped touching her, got up, and walked around behind her. A.S. got up on her elbows and saw that Jones was unfastening his pants. She protested that she did not want to engage in intercourse, but he "leaned forward" and A.S. was "pushed down . . . to where [she] couldn't get up" and her arms were pinned beneath her body. Jones then moved A.S.'s underwear aside and had intercourse with her. Afterward, Jones apologized to A.S., asked her if she was alright, and told her that she could "press charges" if she wanted to because he was "out of line" and had "lost control." After Jones left the residence,
A.S. called the Women's Center at Boise State University and spoke to a counselor. After telling the counselor that she had been raped, she was advised to call the police, which she did not do. She continued to be in contact with Jones, including going with him again to Jackpot.
Several days later on May 27, Jones came to watch movies at A.S.'s residence. Jones spent the night on A.S.'s couch and remained in the apartment after Carpenter left for work and A.S.'s children left for school. A.S. testified that during this time she was taking a prescribed anti-anxiety medication which caused her to experience marked drowsiness and had taken an over-the-counter antihistamine to treat a bee sting, which also caused her to feel drowsy. Due to her drowsiness, A.S. lay down on the couch in the living room, while Jones used the computer in her bedroom. Jones entered the living room, sat next to her, and began to stroke her hair. A.S. testified that Jones pulled her hair, but A.S. did not respond and pretended to be asleep. Jones then grabbed at A.S.'s breasts, forcefully touched her private area, and proceeded to engage in intercourse with her while she was lying on the couch and not moving. A.S. testified that she was "paralyzed by fear" and neither physically resisted Jones nor made any verbal protest. A.S. testified that she had hoped Jones would cease if she did not respond to him physically.
After the encounter, the two went to the bedroom and shared a cigarette. Jones assisted A.S. in getting into bed and again began to have sexual intercourse with her. There was no testimony by A.S. that she protested or asked Jones to stop during this second encounter, and he stopped on his own accord, stating "Baby, I do have a problem." He asked if they could resume having sex, which she refused. Jones eventually left the residence.
A.S. drove to Carpenter's brother's house and told him and his girlfriend that Jones had raped her. They took A.S. to the hospital, where she told staff that she had been sexually assaulted, but did not want to press any legal charges. However, law enforcement officers were contacted and A.S. provided a statement to the police while at the hospital.
On May 29, A.S. met with a detective who arranged a recorded confrontation call. On the tape, Jones is heard apologizing for both incidents, admitting to A.S. that he "continued" with the sexual acts despite her telling him no in the first instance and her not responding in the second instance, and agreeing that, after the first instance, he sent her text messages "promising [her] it wouldn't happen again." In addition, in several of the audible portions of the audio recording, A.S. can be heard to clearly say to Jones, "You think this is ok to do to people who are unconscious? Apparently you've done this to [M.C., a former girlfriend] before, and now you did it to me." Jones says, in response to A.S.'s prodding, that he was already on felony probation for domestic battery based on similar circumstances and that he would have to register as a sex offender based on A.S.'s allegations. A.S. also asked Jones to describe the "bad things" that he had done in the past, to which he responded that he had "hurt [M.C.]" and committed prior driving under the influence (DUI) offenses.
Jones was charged with two counts of forcible rape, Idaho Code § 18-6101(3)*fn1 , based on the May 22 incident in the bedroom (Count I) and the May 27 incident on the couch (Count II). At trial, A.S. testified as to her version of the events regarding the two counts of rape and admitted that she had never informed police that she and Jones had been involved in a consensual sexual relationship for four years at the time of the incidents. She also admitted that she had given police an incomplete account of the facts when providing them with her statements--specifically, she did not tell them that she had engaged in consensual sex with Jones earlier in the day on May 22, and while she had shown officers text messages from Jones that she thought were incriminating, she did not reveal to the officers other text messages that she had sent to Jones indicating that she loved him and that would have revealed their past relationship. Additionally, A.S. admitted that as of the time of trial she was still concealing her past sexual relationship with Jones from Carpenter.
Defense counsel cross-examined A.S. at length about a letter she had written in which she recanted her allegations of rape--which had been notarized and given to the prosecution prior to trial. In the letter, A.S. characterized the events forming the basis of her allegations of rape as a misunderstanding between her and Jones and asserted that Jones was being wrongfully charged.
A.S. later sent the prosecutor another letter retracting her retraction and indicating her desire to go forward with the rape charges--a change of heart which she indicated was due to having undergone counseling.
The State presented the testimony of the registered nurse who performed the examination of A.S. on May 28. The nurse indicated that A.S. appeared frightened, was crying, spoke in a soft tone of voice, did not make eye contact, and curled up in the fetal position after the examination. The nurse also testified that she found no physical findings of trauma consistent with rape during the examination, specifically that there was no evidence of bruising, scraping, or scratches anywhere on A.S.'s body.
At one point in the trial, Jones moved that the State's recording of his May 29 phone conversation with A.S. be redacted before being played to the jury to omit any references to allegations of prior bad acts that Jones had committed against M.C., specifically the implication that Jones had engaged in sexual intercourse with M.C. while she was asleep. The district court ruled that the tape should not be redacted, stating that because Jones was on trial for forcible rape and not for rape while A.S. was unconscious, the court "didn't see how this is prejudicial."
The State's final trial witness was Detective Bob Chaney, who had met with A.S. after the incidents and had facilitated the taping of her call to Jones. While he was on the stand, the un-redacted tape was played for the jury. Detective Chaney then testified that he looked at and wrote down several text messages from Jones to A.S., which were admitted into evidence, but that he did not examine any messages that A.S. sent to Jones--including those in which she expressed her love for Jones. He was also apparently still unaware that Jones and A.S. had been engaged in a four-year consensual sexual relationship and that the two had engaged in consensual sexual intercourse earlier on May 22. The detective also testified that no physical evidence of rape had been found after completion and testing of the rape kit.
At the close of evidence, Jones moved for a directed verdict based on the failure of the State to prove that A.S. resisted sexual intercourse and that her resistance was overcome by force. The district court denied the motion. The jury convicted Jones of both counts of rape and Jones was sentenced to concurrent twenty-five year sentences, with five years determinate for each count. Jones now appeals, challenging his convictions on sufficiency of the evidence grounds and on an evidentiary ruling error.
A. Sufficiency of the Evidence
Jones contends that there was insufficient evidence to support the jury's verdicts on both counts because the State failed to prove, beyond a reasonable doubt, both that A.S. physically resisted Jones and that her resistance was overcome by force or violence, elements that are required by the statute.
Appellate review of the sufficiency of the evidence is limited in scope. A judgment of conviction, entered upon a jury verdict, will not be overturned on appeal where there is substantial evidence upon which a reasonable trier of fact could have found that the prosecution sustained its burden of proving the essential elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App. 1991). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Byington, 132 Idaho 589, 593, 977 P.2d 203, 207 (1999); State v. Johnson, 149 Idaho 259, 263, 233 P.3d 190, 194 (Ct. App. 2010). We will not substitute our view for that of the jury as to the credibility of the witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light most favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson, 121 Idaho at 104, 822 P.2d at 1001.
Jones was charged solely under I.C. § 18-6101(3) in both counts. At the time of the charged offenses, the statute provided that:
Rape is defined as the penetration, however slight, of the oral, anal or vaginal opening with the perpetrator's penis accomplished with a female under any one (1) of the following circumstances: (3) Where she ...