Appeal from the District Court of the Fifth Judicial District, State of Idaho, Minidoka County. Hon. R. Barry Wood, District Judge.
The opinion of the court was delivered by: Burdick, Chief Justice
Twin Falls, November 2011
2011 Opinion No. 60
Stephen W. Kenyon, Clerk
The judgment of the district court is affirmed.
This case concerns Appellant James Fredrick Pepcorn, Sr.'s petition for review from the Court of Appeals decision finding error in two cases against him that were consolidated at trial. After a harmless error analysis, the Court of Appeals decided that the error in one of the cases was harmless error, but was not in the other case. In resolving the appeal, we directly address the issues at the trial court level regarding the introduction of Idaho Rules of Evidence Rule 404(b) evidence. We conclude that the admission of 404(b) testimonial evidence was not in error.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant James Fredrick Pepcorn, Sr. (Pepcorn) was found guilty and charged with two counts of lewd conduct, two counts of sexual abuse of a child, and one count of rape in a consolidated trial in Minidoka County. Both victims were nieces by marriage. One of the nieces, A.R.G., testified that Pepcorn had digitally penetrated her after a four-wheeler ride in the middle of a field, and that on a subsequent visit to his farm, Pepcorn anally raped her in his bedroom. These events took place in 1992 or 1993, when A.R.G. was six or seven years old. The other niece, A.J., testified that Pepcorn had touched her bottom and breasts during hugs; grabbed her crotch and bottom and massaged her vagina while lifting her up onto horses; and, ran his hand up her thigh, close to her vagina, after he asked her to sit on his lap while they were watching television. These events took place close to 1995, when A.J. was twelve or thirteen years old.
On May 10, 2007, the Information was filed for the counts committed against A.R.G., lewd conduct with a minor child under sixteen, pursuant to I.C. § 18-1508, and rape, pursuant to I.C. § 18-6101. On October 16, 2007, Pepcorn waived his right to a speedy trial and the parties stipulated to vacate and reschedule the jury trial set for the counts involving A.R.G. upon the belief that further charges would most likely be brought against Pepcorn. On March 10, 2008, the Information was filed for the counts committed against A.J., two counts of sexual abuse of a child under the age of sixteen years, pursuant to I.C. § 18-1506, and lewd conduct with a minor child under sixteen, pursuant to I.C. § 18-1508.*fn1 Subsequent to the filing of the Information in the second case, a motion was filed in both cases seeking consolidation. Notice was also filed of the State's intent to introduce evidence pursuant to I.R.E. 404(b). The notice listed seven individuals related to Pepcorn that had allegedly been victims of sexual abuse, sexual contact, or lewd conduct.
During the hearing regarding the motions for consolidation and admission of 404(b) evidence, Pepcorn's pre-trial counsel objected early on in the hearing on the grounds of there being different victims, different cases, unconnected acts or transactions, at dissimilar times, and no common questions of fact. Later, counsel objected to the consolidation on similar grounds and further because the incidents were reported at different times and the victims were different ages at the time of the incidents. Additionally, objections were made regarding the 404(b) issue based on the different types of conduct and different sex of some of the witnesses and defense counsel asked for the court's permission to brief the issue further.
The district court decided that it would allow the 404(b) evidence, ruling that the offenses were similar and were admissible for purposes other than propensity, namely because the evidence was relevant to show a common plan or scheme "to sexually abuse an identifiable group of young persons, many of whom are approximately the same age, with whom the defendant is related, and with the defendant has access to by reason of his familial and blood relationship." The district court also found the evidence relevant for purposes of credibility, and further for showing motive, opportunity, and preparation.*fn2 The court next considered whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, finding that the probative value thereof increases just by the number of witnesses and volume of testimony, but that it was not outweighed by unfair prejudice.
Based on similar reasoning, the court also decided in favor of consolidation because of "clear evidence here of a common plan or scheme to abuse these relatives of all approximately the same age group." At a later hearing concerning an additional witness listed on the notice of intent, the court further explained that it was ordering consolidation because "it seems to me that all of the witnesses would be identical in each of the two trials" and those that were not, could be handled by a limiting instruction. The court also gave further reasoning for its decision regarding consolidation: (1) there would be little risk that the jury would be confused between the five different counts/allegations; (2) the jury would be given instructions to find all material elements of the crime charged for each allegation; and (3) the jury was going to essentially hear the same evidence for each case.
On May 19, 2008, a second notice of intent to present 404(b) evidence was filed. The notice listed three more individuals related to Pepcorn that had allegedly been victims of sexual abuse, sexual contact, or had witnessed Pepcorn making sexual contact with another person within the identifiable class.
The 404(b) testimony heard during the pre-trial hearings and eventually at trial consisted of testimony from six of the individuals initially listed in the notices. Two of the witnesses that testified were two of the daughters of Pepcorn's wife's older sister. The older of the two nieces testified that at the time Pepcorn was living in their basement in Ogden, Utah, and was an instructor for summer night courses at Weber State University. She testified at trial to an event that took place over forty years prior to her testimony.
A. Yeah, there was a time when [the sisters took turns and] went . . . with him when he was teaching. . . . At the college.
Q. Do you remember what you were wearing?
A. Yeah, we had to wear dresses.
Q. And tell us about that. How do you remember you were wearing a dress?
A. We had to dress for school. Mom told us that we needed to . . . wear a dress, because we were going to school. . .
Q. When you went to Weber State with the defendant, how did you go there?
Q. I'm sorry, do you remember what kind?
A. Car, truck, I don't know what kind it was. I know it had a bench seat.
Q. Was anybody else in the vehicle with you and the defendant?
Q. Did anything happen in that vehicle that you remember now?
A. Yeah. When we were pulled out of the driveway and we were headed toward the college, [Pepcorn] told me that the door was broken and that it might come open, and that I needed to slide over away from the door, so I slid a little bit.
Q. What happened after you slid over?
A. He grabbed my arm and slid me over closer to him.
Q. What happened after he slid you over closer?
A. He put his hand on my leg.
A. On my thigh above my knee.
Q. What did he do with his hand there?
A. Just sat there for a few minutes. And then grabbed my hand and put it on his leg, and--
Q. Where on his leg did he put your hand?
A. It was his upper thigh.
Q. Do you remember if he did anything with your hand on his upper thigh?
A. No, he let go of it, left it there.
Q. What happened after he let go of that?
A. He slid his hand under my dress.
Q. Where under your dress?
A. Into the elastic leg of my underwear.
Q. And what did he do after that?
A. He started touching my private parts.
Q. And I have got to ask you to describe to the jury what you remember about that specifically, about that touching.
A. I was uncomfortable. I just--you know, I was shaking, nervous, didn't know what to say or do. He told me to slide down a little and spread my legs apart a little, and then he put his finger inside my vagina and moved it in and out.
Q. Do you remember feeling any physical pain?
A. Yeah, it hurt. I think I told him that it hurt.
Q. And do you know how long that touching lasted?
A. Yeah, maybe 15 minutes; 15, 20 minutes.
Q. . . . Again, can you estimate how old you were when ...