Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia County. Hon. Michael R. Crabtree, District Judge.
The opinion of the court was delivered by: Melanson, Judge
2012 Unpublished Opinion No. 571
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Tyrell Lee Ramsey appeals from his judgment of conviction for battery with intent to commit rape, sexual penetration with a foreign object, and misdemeanor battery. For the reasons set forth below, we affirm.
In July 2009, Ramsey attended a party at SP's residence, which was also attended by LN. The state filed a complaint charging Ramsey with attempted rape of LN, I.C. §§ 18-6101 and 18- 306, and battery with intent to commit rape upon LN, I.C. §§ 18-903 and 18-911. The state also charged Ramsey with attempted rape of SP, I.C. §§ 18-6101 and 18-306; battery with intent to commit rape upon SP, I.C. §§ 18-903 and 18-911; and sexual penetration with a foreign object upon SP, I.C. § 18-6608. All of the events leading to the charges against Ramsey occurred at the party.
Ramsey filed a motion to sever the charges in the information regarding LN from the charges regarding SP for trial. Ramsey also filed a motion for orders authorizing employment of an investigator and a psychiatrist at public expense, as well as a motion for an order permitting inspection of the premises of the scene of the alleged crimes. The district court denied Ramsey's motions, but thereafter authorized employment of an investigator and granted Ramsey $750 to do so.
Ramsey's case proceeded to trial before a jury on December 28. During deliberations, the jury submitted a question to the district court. Without objection from the state or Ramsey's counsel, the district court answered the jury's question by instructing the jury to continue deliberations under the direction of the instructions that had been provided. The jury returned a verdict finding Ramsey not guilty of the offenses of attempted rape and battery with intent to commit rape upon LN. However, the jury found Ramsey guilty of the included offense of misdemeanor battery upon LN, battery with intent to commit rape upon SP, and sexual penetration with a foreign object upon SP.*fn1 The district court sentenced Ramsey to a determinate term of 180 days for misdemeanor battery upon LN; a unified term of fifteen years, with a minimum period of confinement of ten years, for battery with intent to commit rape upon SP; and a unified term of fifteen years, with a minimum period of confinement of eight years, for sexual penetration with a foreign object upon SP. The district court ordered that Ramsey's sentences be served concurrently. Ramsey appeals, alleging numerous pretrial and trial errors.
Ramsey's bond was originally set by a magistrate at $250,000. At Ramsey's arraignment, the district court reduced Ramsey's bond to $100,000. Ramsey filed a motion for reconsideration of the reduction of his bond, which the district court denied. Ramsey argues that the district court erred by setting the $100,000 bond and by denying his motion for reconsideration. Specifically, Ramsey asserts that the $100,000 bond was excessive and affected his ability to locate witnesses to aid in his defense.
After trial and conviction, questions regarding excessiveness of a bond generally cannot be raised. Stone v. State, 108 Idaho 822, 824, 702 P.2d 860, 862 (Ct. App. 1985). On the other hand, where the defendant contends that an excessive bond materially interfered with his or her right to counsel and impeded his or her defense, an appellate court is at liberty to review the question. Id. Determination of the amount of bond is committed to the sound discretion of the trial court, and the decision will not be disturbed except in the case of a clear abuse of discretion. Id. 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).
As noted above, at Ramsey's arraignment, the district court reduced Ramsey's $250,000 bond to $100,000. The record contains no transcript of that hearing. The record also contains no transcript of the hearing on Ramsey's motion for reconsideration, but the district court noted in its order denying Ramsey's motion that it took the motion under advisement in order to review the transcript from the preliminary hearing to consider factors bearing on the likelihood of conviction.*fn2 In the order, the district court explained that, after review of the transcript of the preliminary hearing, it found that the testimony of the state's witnesses did not disclose any mitigating factors that would bear on the likelihood of a conviction in Ramsey's case. The district court noted that the state's witnesses testified to the criminal acts as alleged in the information and the district court did not find any inconsistencies in the witnesses' testimony that would indicate that the witnesses were not credible or that the acts did not occur. The district court determined that the testimony at the preliminary hearing did not establish a mitigating factor in favor of reducing Ramsey's bond. The district court concluded that, after consideration of the factors in I.C. § 19-2904 and I.C.R. 46(a),*fn3 the $100,000 bond was appropriate. It is the responsibility of the appellant to provide a sufficient record to substantiate his or her claims on appeal. State v. Murinko, 108 Idaho 872, 873, 702 P.2d 910, 911 (Ct. App. 1985). In the absence of an adequate record on appeal to support the appellant's claims, we will not presume error. State v. Beason, 119 Idaho 103, 105, 803 P.2d 1009, 1011 (Ct. App. 1991). Ramsey has not provided the transcript of his hearing wherein the district court reduced Ramsey's $250,000 bond to $100,000 and cited its considerations for doing so. Accordingly, we will not presume the district court erred by reducing Ramsey's bond to $100,000. Likewise, because Ramsey did not provide a transcript of the hearing regarding his motion for reconsideration, we will not presume the district court erred by denying Ramsey's motion.
Ramsey argues that the district court erred by denying his motion to sever the charges regarding LN from the charges regarding SP for trial. Specifically, Ramsey asserts that, pursuant to I.C.R. 8(a), the charges were not properly joined because the charges against Ramsey involving LN and SP were not based on the same act or transaction and not connected as a common scheme or plan. Ramsey further asserts that, even if the charges were properly joined, his motion to sever should have been granted pursuant to I.C.R. 14 because Ramsey demonstrated he would suffer prejudice from trying the charged counts together since the jury would conclude he was a sexual predator and believe he was a bad person. Whether joinder was proper is a question of law over which we exercise free review. State v. Anderson, 138 Idaho 359, 361, 63 P.3d 485, 487 (Ct. App. 2003). Idaho Criminal Rule 13 allows a trial court to "order two (2) or more complaints, indictments or informations to be tried together if the offenses, and the defendants if there is more than one (1), could have been joined in a single complaint, indictment or information." Idaho Criminal Rule 8(a) provides that joinder of offenses in a single complaint, indictment, or information is proper if the offenses charged "are based on the same act or transaction or on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan." Thus, offenses may be joined if there is a factual connection or if they constitute part of a common scheme or plan and the propriety of joinder is determined by what is alleged, not what the proof eventually shows. State v. Field, 144 Idaho 559, 565, 165 P.3d 273, 279 (2007); State v. Cochran, 97 Idaho 71, 73, 539 P.2d 999, 1001 (1975); State v. Cook, 144 Idaho 784, 790, 171 P.3d 1282, 1288 (Ct. App. 2007).
Cases discussing common plans have focused on whether the offenses were one continuing action or whether the offenses have sufficient common elements. Field, 144 Idaho at 565, 165 P.3d at 279. For example, in State v. Schwartzmiller, 107 Idaho 89, 91, 685 P.2d 830, 832 (1984), Schwartzmiller was convicted of three counts of lewd and lascivious conduct with two fourteen-year-old boys. Although the acts occurred at different times and with different people, the Idaho Supreme Court held that the counts were properly joined because the facts demonstrated a common plan. Schwartzmiller frequented areas where young boys may be found, befriended boys with no father figure in the home, enticed them from their homes, lowered their natural inhibitions through the use of drugs and alcohol, and committed sex acts upon them. Id. at 93, 685 P.2d at 834.
Here, in denying Ramsey's motion to sever the charges regarding LN from the charges regarding SP for trial, the district court noted that the information alleged that Ramsey committed the same sexual offenses against LN as he committed against SP, although Ramsey allegedly committed an additional sexual offense with SP. The district court also noted that the information alleged each offense occurred on the same night, in the same house, and at the same party. Accordingly, the district court found that the offenses charged were based on alleged acts by Ramsey that were sufficiently connected by time, location, and event to make joinder of the offenses proper. We agree.
However, even where charges are properly joined, a motion to sever may still be granted pursuant to I.C.R. 14 if the party making the motion demonstrates prejudice from trying the charged counts together. Idaho Criminal Rule 14 provides:
If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in a complaint, indictment or information or by such joinder for trial together, the court may order the state to elect between counts, grant separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires.
An abuse of discretion standard is applied when reviewing the denial of a motion to sever pursuant to I.C.R. 14. Field, 144 Idaho at 564, 165 P.3d at 278. When reviewing an order denying a motion to sever, the inquiry on appeal is whether the defendant has presented facts demonstrating that unfair prejudice resulted from a joint trial, which denied the defendant a fair trial. State v. Eguilior, 137 Idaho 903, 908, 55 P.3d 896, 901 (Ct. App. 2002). In cases such as this, Idaho appellate courts review the trial proceeding to determine whether one or more of the following potential sources of prejudice appeared: (a) the possibility that the jury may confuse and cumulate the evidence, rather than keeping the evidence properly segregated; (b) the potential that the defendant may be confounded in presenting defenses; and (c) the possibility that the jury may conclude the defendant is guilty of one crime and then find him or her guilty of the other simply because of his or her criminal disposition--he or she is a bad person. Id.
In denying Ramsey's motion to sever, the district court concluded that Ramsey would not suffer prejudice if the charges regarding LN were not severed from the charges regarding SP for trial. Specifically, the district court determined that it reasonably expected that both of the alleged victims would testify at trial and that the jury would not confuse the testimony of LN and SP as to the elements of each offense when determining a verdict. Further, the district court determined that Ramsey had not articulated any defense that he would be prevented from presenting at trial unless the district court severed the charges and noted that Ramsey would be afforded the opportunity to present any defenses he may have. Finally, the district court explained that appropriate jury instructions would be given to protect Ramsey's right not to be found guilty if the jury viewed him as a bad person.
The evidence in this case was straightforward. Both LN and SP testified. LN testified that, after she went into the bathroom during the party, Ramsey pushed himself into the bathroom and tried to force himself upon her sexually and against her will. SP testified that, while she was outside on a porch during the party, Ramsey approached her and pulled her behind the house and tried to force himself upon her sexually and against her will. Ramsey denied that he had committed the acts. Evidence relating to the credibility of all witnesses was submitted.
After reviewing the trial transcript and record, we conclude that the facts relating to each incident were so distinct and simple that there was little risk the jury would confuse or cumulate the evidence in applying the district court's instructions to the evidence in the case. Also, Ramsey was not confounded in presenting his defenses. The jury was properly instructed on the reasonable doubt standard and that, when more than one crime is charged and each charge is based upon a separate, discrete time and incident, each separate offense and the act or incident upon which it is based must be proved beyond a reasonable doubt and the act or incident must be separate and distinct from any other criminal act or incident. We presume a jury follows the instructions given by the district court. Hedger, 115 Idaho at 601, 768 P.2d at 1334; State v. Rolfe, 92 Idaho 467, 471, 444 P.2d 428, 432 (1968); State v. Boothe, 103 Idaho 187, 192, 646 P.2d 429, 434 (Ct. App. 1982). Additionally, there was ample evidence presented from which the jury could find, beyond a reasonable doubt, that Ramsey was guilty of each of the counts charged against him. This weighs against the possibility that the jury may have concluded that Ramsey was guilty of one crime and then found him guilty of the other because of his criminal disposition. Further, while Ramsey was charged with the offense of battery with intent to commit rape upon both LN and SP, the jury found Ramsey not guilty of that offense with respect to LN but guilty with respect to SP. Thus, because it appears that no prejudice would, or did, flow from the district court's refusal to grant separate trials, the district court did not err by denying Ramsey's motion to sever the charges regarding LN from the charges regarding SP for trial.
3. Motion for investigator
Ramsey argues that the district court's denial of his motion for an order authorizing employment of an investigator at public expense on October 14, 2009, resulted in an inability to locate and contact most of the witnesses who were at the party. Ramsey asserts that he made the necessary threshold showing that he needed the investigator and that the district court abused its discretion in denying the motion at that time. On October 29, two months before trial, the district court reconsidered Ramsey's motion for an order authorizing employment of an investigator and granted Ramsey $750 to do so. Even assuming the district court erred by denying Ramsey's motion on October 14, the error is harmless and not reversible if the reviewing court is convinced beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. See State v. Perry, 150 Idaho 209, 221, 245 P.3d 961, 973 (2010). Thus, we examine whether the alleged error complained of in the present case was harmless. See State v. Lopez, 141 Idaho 575, 578, 114 P.3d 133, 136 (Ct. App. 2005).
As noted above, while the district court initially denied Ramsey's motion, fifteen days later the district court granted Ramsey's motion and authorized the expenditure of $750.
Ramsey does not assert that the fifteen-day delay resulted in the inability to locate and contact most of the witnesses who were at the party. Thus, we are convinced beyond a reasonable doubt that, even if the district court erred by not granting Ramsey's motion for employment of an investigator at public expense ...