Appeal from the District Court of the Second Judicial District, State of Idaho, Nez Perce County. Hon. Jeff M. Brudie, District Judge.
The opinion of the court was delivered by: Perry, Judge Pro Tem
Judgment of conviction and sentences for seven counts of lewd conduct with a minor under sixteen, one count of sexual abuse of a child under sixteen, and two counts of sexual battery of a minor child sixteen or seventeen, affirmed, but sentences modified.
Harold E. Grist, Jr., appeals from his judgment of conviction for seven counts of lewd conduct with a minor under sixteen, one count of sexual abuse of a child under sixteen, and two counts of sexual battery of a minor child sixteen or seventeen. For the reasons set forth below, we affirm Grist's judgment of conviction, but modify his sentences.
In 2005, Grist was charged with seven counts of lewd conduct with a minor under sixteen, I.C. § 18-1508; one count of sexual abuse of a child under sixteen, I.C. § 18-1506(1)(b); and two counts of sexual battery of a minor child sixteen or seventeen years of age, I.C. § 18- 1508A. The minor associated with all of the charges was identified in the information as J.M.O.
J.M.O's mother met Grist in 1994 and, shortly thereafter, J.M.O., her younger brother, and her mother began living with Grist. J.M.O. alleged that Grist began abusing her when she was ten years old and that the abuse continued until she moved out after graduating from high school. After a jury trial in 2006, Grist was found guilty of all ten counts. The district court sentenced Grist for the seven counts of lewd conduct with a minor under sixteen to concurrent unified terms of life imprisonment, with minimum periods of confinement of fifteen years. As to the remaining three counts, the district court imposed concurrent determinate periods of confinement of fifteen years, also to run concurrent to his sentences for lewd conduct with a minor under sixteen. Grist's combined sentences equaled life imprisonment, with a minimum period of confinement of fifteen years. Grist appealed.
The Idaho Supreme Court vacated Grist's judgment of conviction and remanded his case for a new trial. See State v. Grist, 147 Idaho 49, 205 P.3d 1185 (2009). After retrial by a jury, Grist was again found guilty of all ten counts. The district court sentenced Grist for the seven counts of lewd conduct with a minor under sixteen to concurrent unified terms of life imprisonment, with minimum periods of confinement of ten years. As to the remaining three counts, the district court imposed consecutive determinate periods of confinement of five years, also to run consecutive to his sentences for lewd conduct with a minor under sixteen. Grist's combined sentences equal life imprisonment, with a minimum period of confinement of twenty- five years. Grist appeals.
Grist argues that the district court abused its discretion by refusing to permit Grist to impeach a witness at trial with a prior felony theft conviction. Grist also asserts that the district court violated his right to due process by imposing vindictive sentences and, alternatively, abused its discretion by imposing excessive sentences.
Idaho Rule of Evidence 609(a) provides, in pertinent part:
For the purposes of attacking the credibility of a witness, evidence of the fact that the witness has been convicted of a felony and the nature of the felony shall be admitted if elicited from the witness or established by public record, but only if the court determines in a hearing outside the presence of the jury that the fact of the prior conviction or the nature of the prior conviction, or both, are relevant to the credibility of the witness and that the probative value of admitting this evidence outweighs its prejudicial effect to the party offering the witness.
Under this rule, the trial court must apply a two-prong test to determine whether evidence of a prior felony conviction should be admitted: (1) the court must determine whether the fact or nature of the conviction is relevant to the credibility of the witness; and (2) if so, the court must determine whether the probative value of the evidence outweighs its prejudicial effect. State v. Bush, 131 Idaho 22, 30, 951 P.2d 1249, 1257 (1997).
When reviewing the district court's decision as to the first prong, we exercise free review because relevancy is an issue of law. State v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993); State v. Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 (Ct. App. 1993). As noted by this Court in State v. Allen, 113 Idaho 676, 678, 747 P.2d 85, 87 (Ct. App. 1987), the question of the relevancy of prior felonies for the purposes of attacking a witness's credibility is a thorny one. The "varied relationships between felony convictions and witness credibility have produced much disagreement among courts and commentators about the particular crimes suitable for impeachment." State v. Pierce, 107 Idaho 96, 103, 685 P.2d 837, 844 (Ct. App. 1984).
In an attempt to simplify this question, the Idaho courts have divided felonies into three categories having varying degrees of probative value on the issue of credibility. Crimes in the first category, such as perjury, are intimately connected to a person's veracity and credibility, while crimes in the second category, like robbery and burglary, are somewhat less relevant to credibility because they do not deal directly with veracity and have only a general relationship with honesty. State v. Ybarra, 102 Idaho 573, 580-81, 634 P.2d 435, 442-43 (1981); Allen, 113 Idaho at 678, 747 P.2d at 87. Offenses in the third category, which include crimes of passion and acts of violence that are the product of emotional impulse, have been said to have little or no direct bearing on honesty and veracity. Ybarra, 102 Idaho at 580-81, 634 P.2d at 442-43; Allen, 113 Idaho at 678, 747 P.2d at 87. Further, the "determination whether evidence of a particular felony conviction is relevant to credibility depends on the particular facts and circumstances of each case and must therefore be decided on a case-by-case basis." Bush, 131 Idaho at 31, 951 P.2d at 1258. The case-by-case analysis requires examination of the statute under which the conviction occurred in order to determine into which category the conviction falls. State v. Muraco, 132 Idaho 130, 133, 968 P.2d 225, 228 (1998). For example, while theft crimes generally do not involve dishonest or false statements, such crimes may be committed by fraudulent or deceitful means and fall into the first category.
When reviewing the district court's determination as to the second prong--whether the probative value of the evidence outweighs its prejudicial effect--we apply an abuse of discretion standard. State v. Rodgers, 119 Idaho 1066, 1072, 812 P.2d 1227, 1233 (Ct. App. 1990), aff'd, 119 Idaho 1047, 812 P.2d 1208 (1991). 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). We must defer to the discretion of the district court so long as that discretion was not abused. See State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000).
In Rodgers, this Court affirmed the result and analysis employed by the district court when weighing the probative value of a defendant's prior felony conviction against its prejudicial effect. In that case, the district court considered several factors: (1) the impeachment value of the prior crime; (2) the remoteness of the prior conviction; (3) the witness's criminal history; (4) the similarity between the past crime and the crime charged; (5) the importance of the witness's testimony; (6) the centrality of the credibility issue; and (7) the nature and extent of the witness's criminal record as a whole. Rodgers, 119 Idaho at 1073, 812 P.2d at 1234. The district court concluded that the prior conviction was relevant to the defendant's credibility and that its probative value outweighed the prejudicial effect. Id. This Court held that the district court had not abused its discretion. Id. The Idaho Supreme Court concurred in the analysis and disposition of this issue in its review of this Court's decision. State v. Rodgers, 119 Idaho 1047, 1052, 812 P.2d 1208, 1213 (1991).
At retrial, Grist sought to impeach a witness of the state with a felony theft conviction the witness received approximately one month prior to the beginning of Grist's second trial. The witness was the younger brother of J.M.O. and testified at both trials that, at a young age, he observed Grist inappropriately touching his sister on one occasion. Grist argued that the witness's theft conviction was relevant because it is a matter of moral turpitude. Grist also argued that the conviction was a crucial piece of evidence because the witness was the only person other than the victim who would testify to any actual observation of an inappropriate physical act by Grist. The state argued that the theft conviction had no relevance to the ...