Appeal from the District Court of the Seventh Judicial District, State of Idaho, Custer County. Hon. William H. Woodland, District Judge.
The opinion of the court was delivered by: Gratton, Chief Judge
Judgment of conviction for sexual abuse of a minor under the age of sixteen, vacated and remanded.
Ronald L. Coleman appeals from the judgment of conviction entered upon a jury verdict finding him guilty of sexual abuse of a child under the age of sixteen, Idaho Code § 18-1506.
FACTUAL AND PROCEDURAL BACKGROUND
Coleman was charged with sexual abuse of a child under sixteen relative to an incident in which he exposed his penis to the seven-year-old daughter of a family friend. The child described the incident in her testimony at trial. She testified that they were playing alone together in a junkyard when they found a calendar containing pictures of topless women. Coleman asked the child if she liked the pictures and compared the stomach of one of the women to the child's stomach. Coleman began talking about sex and said, "I wish you were my age so I can just do it." He talked to her about her anatomy and sex acts. He told her that women get pregnant from sex. He pulled her legs apart and touched her vaginal area, which the child perceived as an accident because it happened very quickly and he apologized. Coleman told the child not to tell anyone what they talked about. At the end of the conversation, he stated that it was "time to go pee," walked from the driver's side to the passenger side of the abandoned car where the child was still seated and urinated in front of her, exposing his penis to her in the process. Coleman asked the child if she wanted to hold it and she said "no" and that she was going home, where she reported the incident.
Before the trial, the State filed a notice of intent to present evidence under Idaho Rule of Evidence 404(b). The State sought to introduce testimony relating Coleman's actions on two occasions a year earlier that allegedly demonstrated "grooming" behavior by Coleman toward the child. On one prior occasion, Coleman allegedly attempted to remove the child's pants while she was asleep and was alone with Coleman in his room (the pants incident). Coleman maintained at the time that he was helping the child put on her pajamas. On another occasion Coleman allegedly upset the child by pressing her to talk about her stepfather while the two were alone at a bonfire (the bonfire incident), a topic Coleman knew the child was uncomfortable talking about. Coleman filed a motion in limine to exclude the Rule 404(b) evidence from trial, and additionally requested that expert testimony the State planned to present regarding "grooming" behaviors be excluded.
The district court conducted a hearing on the motions and held that the State's expert would be allowed to testify about grooming generally, but reserved ruling on the Rule 404(b) evidence until the testimony was presented outside the presence of the jury. After hearing the child's testimony, the district court ruled that testimony regarding the pants incident would be allowed, and took the bonfire incident under advisement. The court never formally ruled on the bonfire incident, but during the child's testimony the district court stated: "I had indicated to both counsel this morning before testimony began that I would allow [the child] to testify about the incidents that were the subject of the motion in limine that I had not ruled on last evening." The evidence was presented at trial and the jury found Coleman guilty. The district court imposed a unified sentence of fifteen years, with seven years determinate. Coleman timely appealed.
Coleman argues the Rule 404(b) evidence was irrelevant, and therefore improperly admitted. He also contends that the district court failed to weigh the probative value of the evidence against the risk of unfair prejudice and, in the alternative, that the probative value of the evidence does not substantially outweigh the risk of unfair prejudice. The State asserts that the Rule 404(b) evidence was relevant, that the district court ...