Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Deborah A. Bail, District Judge.
The opinion of the court was delivered by: Lansing, Judge
OPINION DATED OCTOBER 5, 2011 IS HEREBY WITHDRAWN
Judgment of conviction for two counts of lewd conduct with a minor under the age of sixteen, reversed.
Todd James Suriner appeals from his judgment of conviction for two counts of lewd conduct with a minor under the age of sixteen. Suriner argues that the State failed to present evidence of the corpus delicti of the crime independent of his extra-judicial confessions, and that the district court erred in instructing the jury. Because we conclude that the State presented no independent evidence of the corpus delicti, we reverse Suriner's judgment of conviction.
Suriner and his wife had twin daughters who, at the time of the events in this case, were approximately three years old. Suriner's wife informed authorities that she became suspicious of misconduct by Suriner after she learned the twins had told their aunt that Suriner had put his finger in their "business," the word used by the girls to refer to their vaginas. After learning of these accusations, Suriner agreed to take a polygraph test. Before the test was administered, however, he confessed to the polygraph examiner that he had penetrated one daughter's vagina with his finger. At a second interview with a police detective, Suriner admitted to abusing both daughters in this way on multiple occasions over the previous year. Suriner stated that he abused the girls only on Sundays while his wife was at work. After Suriner confessed, his daughters were given physical examinations that yielded no finding of any abnormalities. Due to their young age, they were unable to participate in an interview with a social worker. Based upon his confessions, Suriner was charged with two counts of lewd conduct with a minor under the age of sixteen, I.C. § 18-1508. While awaiting trial, Suriner made three telephone calls from the jail in which he admitted he abused his daughters and expressed remorse for his actions.
Because of the girls' age, their testimony was not offered at trial. The State's evidence included testimony by the officers who interviewed Suriner, the doctor who examined the girls, and Suriner's wife. The polygraph examiner who conducted the first interview testified that he asked whether Suriner knew why he had been brought in for questioning and that Suriner indicated he understood it was regarding his daughters. The officer then asked what Suriner could tell him about the case, and Suriner replied that he was not "sure where the girls had come up with this," but the only thing "he could think of was when he was doing his dad duties."*fn1 Video recordings of Suriner's confessions and audio recordings of his telephone calls from jail were also admitted. In the videos, the polygraph examiner made multiple references to the statements made by Suriner's daughters. Suriner objected to these references on hearsay grounds. In response to the objection, the district court instructed the jury that any reference to statements made by Suriner's daughters were inadmissible hearsay, that they were not to be used as evidence that a crime was committed, and that the statements were admissible only as context for the response they elicited from Suriner.
At the close of the State's case, Suriner moved for a judgment of acquittal on the ground that the State's evidence did not satisfy the doctrine of corpus delicti because it included no evidence corroborating Suriner's confessions. The district court denied the motion and the jury ultimately found Suriner guilty of both charges. On appeal, Suriner argues that the district court erred in denying his motion to dismiss because the State failed to prove the corpus delicti of the crime independent of his extra-judicial confessions, and that the court erroneously instructed the jury. Because we find the first issue dispositive, we do not address the jury instruction issue.