Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker, District Judge.
The opinion of the court was delivered by: Lansing, Judge
Judgment of conviction for lewd conduct and sexual abuse of a child, affirmed.
Dwain K. Whitaker appeals from his judgment of conviction on eleven counts of lewd conduct with a minor child under sixteen, Idaho Code § 18-1508, and three counts of sexual abuse of a child under the age of sixteen, I.C. § 18-1506. Whitaker asserts the district court erred in overruling his objection to evidence that he viewed pornography on his computer and that the prosecutor committed misconduct in closing arguments.
Whitaker was indicted on thirteen counts of lewd conduct with a minor and four counts of sexual abuse for inappropriate sexual contact with his two stepdaughters between 2007 and 2009. The lewd conduct charges included allegations of genital-to-genital contact and manual- to-genital contact. At the time of trial in 2010, Victim 1 was fifteen years old, and Victim 2 was fourteen. Victim 1 testified that Whitaker showed her pornography, touched her inappropriately, and forced her to touch him. Victim 2 testified that Whitaker had shown her pornography, forced her to touch him, and had sexual intercourse with her. A jury found Whitaker guilty of eleven counts of lewd conduct, and three counts of sexual abuse. Whitaker appeals, contending that the trial court erroneously admitted evidence and that the prosecutor engaged in misconduct during closing argument.
A. The Trial Court Erred in Admitting I.R.E. 404(b) Evidence
At trial, Whitaker's wife testified that at some point from 2007 to 2009, she had seen Whitaker view pornography on his computer. Defense counsel objected on various grounds, including that this was "other act" evidence of character and propensity made inadmissible by Idaho Rule of Evidence 404(b) and that the State had provided no pretrial notice of its intent to use such evidence as required by that rule. The district court overruled the objections, concluding that the testimony was not subject to Rule 404(b) because it was not unlawful for Whitaker to possess or view adult pornography.
The evidence rule in question, I.R.E. 404(b), provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that the prosecution in a criminal case shall file and serve notice reasonably in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
This rule prohibits introduction of evidence of acts other than the crime for which a defendant is charged if its probative value is "entirely dependent upon its tendency to demonstrate the defendant's propensity to engage in such behavior." State v. Grist, 147 Idaho 49, 54, 205 P.3d 1185, 1190 (2009). See also State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct. App. 2002). Of course, evidence of a prior crime, wrong, or act may implicate a ...