Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.
The opinion of the court was delivered by: Lansing, Judge
Judgment of conviction for lewd conduct with a minor, affirmed.
Randall Steven Rothwell appeals from his conviction of lewd conduct with a minor under sixteen. Rothwell asserts that the district court erred by excluding evidence of Rothwell's character and by permitting the State to admit irrelevant and prejudicial evidence. Rothwell also asserts that the prosecutor committed misconduct during closing arguments, and that his sentence was excessive. We affirm.
In April 2009, eighteen-year-old Rothwell lived in his parents' home. Six-year-old A.N. and her mother lived nearby. One afternoon, A.N. went into the Rothwells' yard to play with their dog. Rothwell opened his door and let the dog and A.N. into his house. Inside, Rothwell set up a video game for A.N. to play in his bedroom. After noticing that she could no longer see
A.N. in Rothwell's yard, A.N.'s mother began to look and call for her. In response, A.N. and Rothwell emerged from his house, and Rothwell informed A.N.'s mother that A.N. had been inside playing video games. According to A.N.'s mother, A.N. then said, "Mommy, Randy had me lick his penis." Rothwell testified, however, that A.N. had said "I'm playing Randy's joystick game and eating all the little ghosts." Rothwell then commented on A.N.'s active imagination, and A.N. and Rothwell reentered his house. A.N.'s mother went home and checked on a pot of boiling water. Several minutes later, she returned to Rothwell's residence, and took A.N. home. A.N.'s mother called the police and was directed to take A.N. to the hospital where a nurse took swab samples from A.N.'s face, mouth, and hands.
The swab samples were sent to two forensic laboratories for testing. The first lab identified sperm cells on a swab sample taken from A.N.'s cheek, but could not generate a DNA profile from the sperm cells. The lab was, however, able to conduct a DNA analysis of other cells taken from the sample, and to exclude Rothwell as a contributor. The second lab could not verify the presence of sperm or semen on any of the samples, but was able to generate two partial male DNA profiles from other cells on the samples. One of those partial profiles, which is common to one in every 126 Caucasian males, was consistent with Rothwell's DNA profile.
Rothwell was charged with lewd conduct with a minor under sixteen, Idaho Code § 18- 1508, and was found guilty by a jury. The district court imposed a sentence consisting of a unified term of incarceration of twenty-five years, including a six-year fixed term, and retained jurisdiction for up to 365 days. The court ultimately relinquished jurisdiction and ordered the execution of the original sentence.
On appeal, Rothwell asserts that the district court erred by excluding the testimony of two character witnesses proffered by the defense and by admitting irrelevant evidence suggesting that he had harassed A.N. and her mother. He further contends that several comments made during the State's closing argument constituted prosecutorial misconduct and that his sentence was excessive.
At trial, defense counsel informed the court that he intended to call two of Rothwell's friends to testify that in their opinions, based on their observations of his interactions with children, Rothwell was trustworthy with preteen children. The State objected. The district court determined that the proposed testimony was inadmissible because Rothwell's trustworthiness with children was not an element of the charged offense or an element of a defense to that crime, and was therefore irrelevant. The court also concluded that any probative value from the testimony would be outweighed by unfair prejudice and the likelihood that the evidence would confuse and mislead the jury. The court reasoned that even if the evidence possessed probative value, that value was limited because the witnesses could not have observed Rothwell alone with children, and that the introduction of the testimony would lead to "mini trials" to explore specific instances of conduct that would confuse and distract the jury.
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." I.R.E. 401. Relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." I.R.E. 403. Whether evidence is relevant under Rule 401 is an issue of law that we review de novo, while the decision to exclude relevant evidence under Rule 403 is reviewed for an abuse of discretion. State v. Shutz, 143 Idaho 200, 202, 141 P.3d 1069, 1071 (2006); State v. Sanchez, 147 Idaho 521, 525, 211 P.3d 130, 134 (Ct. App. 2009); State v. Clark, 115 Idaho 1056, 1059, 772 P.2d 263, 266 (Ct. App. 1989).
Evidence of a person's trait of character is generally not admissible for the purpose of proving that the person acted in conformity with that trait on a particular occasion. I.R.E. 404(a). As an exception to this rule, however, criminal defendants are allowed to present evidence of a "pertinent trait" of character in defense of a charge. I.R.E. 404(a)(1); State v. Bailey, 117 Idaho 941, 942, 792 P.2d 966, 967 (Ct. App. 1990). In this context, the word "pertinent" is generally synonymous with "relevant." Thus, a pertinent character trait is one that is relevant to the crime charged by making any material fact more or less probable. See State v. Hernandez, 133 Idaho 576, 583, 990 P.2d 742, 749 (Ct. App. 1999); accord State v. Martinez, 195 P.3d 1232, 1240 (N.M. 2008); 22A CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE & PROCEDURE: EVIDENCE § 5236, p. 209 (2012). It follows that the district court was incorrect in holding that a trait of character is pertinent and admissible under I.R.E. 404(a)(1) only if that trait is an element of the offense or of a defense to the charge.*fn1
Whether a defendant's morality with respect to minors is a pertinent character trait in cases involving sexual misconduct with a minor is an issue of first impression in Idaho,*fn2 but most other courts addressing the issue have concluded that traits relating to a defendant's sexual morality with children are pertinent in such cases. State v. Rhodes, 200 P.3d 973, 976 (Ariz. Ct. App. 2008) ("sexual normalcy, or appropriateness in interacting with children"); People v. McAlpin, 812 P.2d 563, 572-76 (Cal. 1991) (opinion that the defendant was not "given to lewd conduct with children" and was normal in his sexual tastes); State v. Hughes, 841 So. 2d 718, 723 (La. 2003) (reputation "as a moral person and for safe and proper treatment of young children"); Wheeler v. State, 67 S.W.3d 879, 882 (Tex. Crim. App. 2002) ("moral and safe relations with small children or young girls"); State v. Griswold, 991 P.2d 657, 663 (Wash. Ct. App. 2000) ("sexual morality") abrogated on other grounds by State v. Devincentis, 74 P.3d 119 (Wash. 2003). See also State v. Anderson, 686 P.2d 193, 204 (Mont. 1984) (orthodox sexual mores); State v. Workman, 471 N.E.2d 853, 861 (Ohio Ct. App. 1984) (trusted with children); State v. Enakiev, 29 P.3d 1160, 1164-65 (Or. Ct. App. 2001) (sexual propriety); State v. Benoit, 697 A.2d 329, 331 (R.I. 1997) (trustworthiness with children); State v. Miller, 709 P.2d 350, 353-54 (Utah 1985) (sexual morality). A minority of courts take the opposite view. See Hendricks v. State, 34 So. 3d 819, 825 (Fla. Dist. Ct. App. 2010) rev. granted, 49 So. 3d 746 (Fla. 2010); State v. Graf, 726 A.2d 1270, 1274-75 (N.H. 1999).
We conclude the majority rule is correct. Because character traits relating to a defendant's sexual morality with children are pertinent, or relevant, in this type of case, such evidence is admissible under I.R.E. 404(a)(1). We recognize that sexual abuse is usually secret behavior that would not be observed by others, and therefore the opinion or reputation evidence about a defendant's trustworthiness with children may be of marginal persuasiveness. The same can be said, however, of many types of criminal activity. It appears that Rule 404(a)(1) was nevertheless intended to allow an accused the opportunity to present evidence of good character that is pertinent to the nature of the charged offense. The unlikelihood that the character witnesses would have been in a position to witness criminal conduct of the defendant goes to the weight of character evidence, not its admissibility.
Rothwell's counsel told the court that he intended to elicit the testimony in the form of opinion or reputation evidence, which is the correct method to introduce character evidence. Idaho Rule of Evidence 405(a) specifies that in every case where a person's character or character trait is admissible, that character or trait may be proved "by testimony as to reputation or by testimony in the form of an opinion."
The district court nevertheless excluded Rothwell's character evidence partly because it was concerned that the witnesses might describe specific instances of conduct, which would not be admissible, while defense counsel was laying the foundation for their opinion testimony. We conclude that this was error because the total exclusion of Rothwell's character witnesses was not necessary to prevent the disclosure to the jury of foundational specific acts evidence. The district court could have limited the scope of the witnesses' testimony in such a manner as to allow defense counsel to lay a foundation for their opinions without eliciting any testimony regarding specific instances of conduct. For example, the court could have allowed the witnesses to explain how long they had known Rothwell, and the extent to which they had seen him interact with children during that time. See McAlpin, 812 P.2d 563, 575-76 (A defendant may introduce evidence "to prove the relevant character trait not by specific acts of 'nonmolestation,' but by the witnesses' opinion of that trait based on their long-term observation of defendant's course of consistently normal behavior with their children."). Alternatively, if evidence of a specific instance of conduct was necessary to lay a foundation for the witnesses' opinions, the district court could have allowed Rothwell to lay that portion of the foundation outside the presence of the jury. See I.R.E. 104(a), (c).
The district court also stated a concern that even if defense counsel did not elicit specific instances of conduct, the prosecutor could do so on cross-examination, "and then we're off doing specifically what the Rules of Evidence tell us that we shouldn't be doing, and that is talking about reputation for a certain pertinent character trait through specific instances of conduct." The district court was incorrect in its belief that the evidence rules preclude cross-examination using specific instances of behavior. Rather, after the admission of character evidence through opinion or reputation testimony, Rule 405(a) specifically authorizes inquiry into "relevant specific instances of conduct" on cross-examination. For example, in Ormesher, ___ Idaho at ___, ___ P.3d at ___, and Harvey, 145 Idaho at 532, 129 P.3d at 1281, we held that the trial court properly allowed cross-examination of character witnesses by queries about the defendant's prior convictions for crimes that were relevant to the trait of character that the witness had attributed to the defendant. Because Rule 405(a) permits the very procedure that the district court anticipated, the prospect of such cross-examination into specific instances of conduct did not justify exclusion of Rothwell's proffered character evidence.
The district court also held that the evidence was inadmissible because the probative value of the evidence was outweighed by unfair prejudice and the likelihood that the jury would be distracted and confused by collateral issues of specific instances of prior conduct. As just noted, however, the district court erred in its analysis regarding the relevance of the evidence and in its analysis regarding the danger of unfair prejudice, confusion, or delay. Because the district court did not correctly ...