Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Ronald J. Wilper, District Judge.
The opinion of the court was delivered by: Lansing, Judge
Judgments of conviction for domestic violence, intimidating a witness, and violating a no contact order, affirmed. Sentence vacated and case remanded.
Jerry Lee McClain appeals from judgments of conviction for domestic violence, intimidating a witness, and violating a no contact order. McClain asserts that the district court erred by admitting evidence of his prior misconduct and that the State presented insufficient evidence to support the jury's finding that he is a persistent violator of the law. We affirm McClain's convictions but reverse the persistent violator sentence enhancement and remand for resentencing.
McClain was charged with rape, Idaho Code § 18-903(a), and domestic violence committed in the presence of a child, I.C. § 18-918(2), (4). The State alleged that McClain kicked his wife and grabbed her by the hair when she stopped performing a sexual act that he demanded, and that he then had intercourse with her against her will, all while their two-year-old son was in an adjacent room. McClain was also charged, in a separate case, with violating a no contact order, I.C. § 18-920, and intimidating a witness, I.C. § 18-2604, based on allegations that after a no contact order had been issued, he repeatedly called his wife from jail and asked her to change her story. The State filed a second information in each case alleging that McClain was subject to a persistent violator sentence enhancement pursuant to I.C. § 19-2514 because he had previously been convicted of at least two felonies.*fn1 The two cases were consolidated for trial.
Approximately one month prior to trial, the State sought a ruling on the admissibility of evidence that would demonstrate that McClain had a history of abusing his wife and other women. The State anticipated that several witnesses, including McClain's wife and mother-in- law, would testify to prior acts of domestic violence. The State asserted that the evidence was admissible under Idaho Rule of Evidence 404(b) to show McClain's intent. The district court ruled that this evidence of prior domestic violence would be inadmissible at trial because the danger of unfair prejudice substantially outweighed any probative value.
Shortly before trial, McClain made a motion in limine to redact all but a seven-minute portion of a sixty-eight minute video recording of a police interview with McClain that was conducted shortly after McClain's arrest.*fn2 Although the video did not contain any admission by McClain of the charged offenses or of any other violence towards his wife, the State argued that the video was relevant to show McClain's claims to the detective--that he had a warm and positive relationship with his wife--which would contrast sharply with testimony from the victim, the victim's mother, and a friend of the victim concerning the nature of the relationship, and that the video was also relevant because it showed McClain presenting an "outlandish" explanation to the detective as to why and how his wife's mother and friend must have persuaded her to falsely accuse him of the alleged violence and sexual assault. McClain broadly asserted that any probative value of statements made on the video was substantially outweighed by unfair prejudice and that its admission would violate the court's previous ruling disallowing evidence of prior domestic violence. The district court reviewed the recording, found it relevant, found that its probative value was not outweighed by the risk of unfair prejudice, and held the full sixty-eight minutes of the video to be admissible. On the second day of trial, McClain objected to specific portions of the video in which he could be heard to say that he had put his children through "bullshit" before, that he had "hurt" people before, and that in the past he had been the kind of person who could "snap." McClain urged that these were inadmissible under Idaho Rule of Evidence 404(b) and the district court's previous ruling in his favor. The district court overruled his objections and permitted the State to play the video for the jury. The jury ultimately found McClain not guilty of rape, but guilty of domestic violence, intimidation of a witness, and violation of a no contact order.
The jury was then asked to determine whether McClain was a persistent violator of the law, which would make him subject to an enhancement of his sentences. The State alleged that McClain had previously been convicted of possession of a controlled substance in Idaho and assault in the third degree in Oregon, and that both crimes were felony offenses. The State's evidence consisted of certified copies of the judgments of conviction for both offenses and the criminal indictment for the assault charge from Oregon. During closing arguments, defense counsel argued that the State's evidence of the Oregon conviction was insufficient because the documentation did not indicate whether the conviction for assault in the third degree was a felony or misdemeanor under Oregon law. After a lengthy deliberation, the jury found McClain to be a persistent violator.
The district court imposed concurrent unified twenty-year sentences with ten-year determinate terms for domestic violence and intimidating a witness, both including a persistent violator enhancement; and a concurrent one-year sentence for the violation of a no contact order. McClain appeals, contending that the district court erred in admitting the video of his police interview and that the evidence was insufficient to prove that he was a persistent violator.
A. Admission of the Recorded Interview
McClain asserts that admission of the recording of his police interview violated Idaho Rule of Evidence 404(b) because it included his statements admitting "other crimes, wrongs, or acts," which are "not admissible to prove the character of a person ...