2013 Opinion No. 78
Appeal from the District Court of the First Judicial District of the State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.
The judgment of conviction is vacated and the case is remanded for a new trial.
Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Eric R. Lehtinen argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth Jorgensen argued.
Preston Adam Joy was charged with felony domestic battery, sexual penetration by a foreign object, and second-degree kidnapping in connection with an altercation with his wife, Jennifer Joy. A jury convicted Preston of domestic battery, acquitted on the sexual penetration charge, and was unable to reach a verdict on the kidnapping charge. He then entered a conditional guilty plea reserving his right to appeal all of the district court's pre-trial, trial, and post-trial rulings. Preston timely appeals, arguing that evidence of prior misconduct was erroneously admitted, that the district court made other errors in admitting evidence, and that the district court erred by refusing to instruct the jury on lesser included offenses. We vacate the judgment of conviction and remand for a new trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the night of July 28-29, 2009, sheriff's deputies in Kootenai County, Idaho responded to a domestic disturbance call at the home of Preston A. Joy and his wife, Jennifer Joy. According to Jennifer, Preston became physically abusive during an argument earlier that evening concerning the location of his keys and cell phone. The police conducted an investigation and, after questioning both Preston and Jennifer, Preston was arrested. He was eventually charged with three felonies: second degree kidnapping, domestic battery, and penetration by a foreign object.
Before the trial, pursuant to Rule 404(b), I.R.E., the State sought to admit evidence of prior instances in which Preston allegedly abused Jennifer. This evidence consisted of Jennifer's testimony regarding four previous altercations. Those four episodes, according to her trial testimony, are: at the end of March or beginning of April, 2009, she awoke to find Preston engaging in anal intercourse with her without her permission and against her will; on April 10, 2009, Preston restrained her hands, and slapped her with the front and back of his open hand forty or fifty times; on July 3, 2009 he threw her down an embankment, causing serious injuries; and on or around July 19, 2009, Preston again restrained her arms and slapped her with the front and back of his open hand fifteen to twenty times. After hearing arguments from both sides, the district court granted the State's motion and admitted the prior misconduct evidence pursuant to Rule 404(b).
Also prior to trial, the district court considered the State's motion to quash Preston's subpoena duces tecum, by which he sought to examine the Joys' personal computer. Preston asserted the computer contained exculpatory photographic evidence showing that he and Jennifer had engaged in consensual sex involving bondage, which he claimed was relevant to explain the source of some of Jennifer's injuries, and that Jennifer had previously consented to being anally penetrated with a dildo, which he claimed was relevant to impeach Jennifer's testimony. The district court granted the State's motion to quash, expressly noting that the ruling was based solely upon Preston's failure to comply with Idaho Rule of Evidence 412. Preston filed a motion for reconsideration. The court heard arguments and determined that Preston had complied with Rule 412 but denied the motion on the grounds the evidence was not relevant. The court later recognized the evidence could become relevant and ordered the computer turned over to the State's custody to protect the contents if events at trial showed the evidence had become relevant. The evidence was never admitted.
At trial, Jennifer testified that on the night of July 28-29, 2009, Preston pushed her into a bathtub full of water, slapped and punched her, pulled her hair, held her head under the water and gagged her with a kitchen towel. At some point, according to her testimony, Preston drained the tub and removed her clothing, then tied both of her wrists to one of her ankles with a shoelace and penetrated her anus with a dildo. She further testified that he then removed her from the tub and dragged her, naked, to his vehicle and drove her to a remote area of their property where he continued to abuse her and threatened to leave her tied to a tree if she did not tell him the location of his keys and phone. She alleged that after she falsely told him she could show him where those items were located, he untied her and took her home, where she waited until he went to sleep and then called the police.
Preston disputed her account of the events of that night, testifying that Jennifer was intoxicated and that she was the initial aggressor who initiated the physical violence. According to Preston, he had to defend himself by using his arms to block her attacks and, after she struck him in the face with her knee, he defended himself by kicking at her to permit him to escape. He further testified that he left the house, that Jennifer followed him and tripped, which caused her to fall off the deck. Then, according to Preston, she charged at him and missed, which caused her to fall over a fence and down an embankment. He also testified that Jennifer came back up the embankment, still angry, and he left in his vehicle. When he returned, he started packing a bag and got back into his vehicle, intending to leave. According to Preston, Jennifer then voluntarily got into his vehicle with him and, after he moved the truck away from the house, she convinced him not to leave. Preston also testified about the four allegations of prior abuse, asserting that he did not have anal intercourse with Jennifer against her will and that in each of the alleged instances of domestic violence, Jennifer had been drinking alcohol and was the aggressor. Preston also offered the testimony of his son, Jonathan Joy, who testified that in the July 19, 2009 allegation, Jennifer had been drinking and was the initial aggressor.
The defense also offered several instances of inconsistent statements Jennifer made regarding the events of July 28-29, 2009, including: whether she removed her own clothes or Preston stripped her before pushing her in the tub; whether Preston used the dildo to penetrate her vaginally or anally; and whether she willingly got into Preston's vehicle after she got out of the bathtub or was forced into the vehicle. As rehabilitation evidence, the State offered evidence of Jennifer's prior consistent statements. The emergency room doctor who treated Jennifer testified that she told him she had been tied up and forced into the bathtub. Detective March testified that Jennifer told him she was clothed when she was pushed into the bathtub, that Preston tied her with a shoelace and anally penetrated her with a dildo, and that he forced her, still bound, into his vehicle. The State also offered portions of Jennifer's preliminary hearing testimony, in which she stated that Preston stripped her clothing off before he pushed her into the bathtub, tied her with a shoelace, and anally violated her.
The jury found Preston guilty of domestic battery and not guilty of sexual penetration by a foreign object, but it did not reach a verdict on the kidnapping charge. The State requested a new trial on the kidnapping charge, and the district court set a date. Prior to that trial, Preston entered a plea agreement with the State in which he agreed to enter a conditional guilty plea, pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). The State stipulated to concurrent sentences for kidnapping and domestic battery, with ten years fixed and a total of no more than fifteen years. In the agreement, Preston expressly reserved the right to appeal all of the district court's "pre-trial, trial and post-trial decisions and rulings, " the verdict, and any "procedure or ruling leading up to that verdict or to the sentence . . . ." The district court accepted the agreement and agreed to be bound by it. The court held a hearing and entered judgment, imposing a unified sentence of fifteen years for kidnapping, with ten years fixed, and a concurrent unified sentence of ten years fixed for domestic battery. Preston timely appealed, arguing the district court: (1) improperly allowed the State to offer evidence of prior misconduct under Rule 404(b); (2) erred granting the State's motion to quash his subpoena for exculpatory evidence; (3) abused its discretion in several evidentiary rulings during the trial; and (4) erred in declining to give Preston's requested instructions on lesser included offenses. Alternatively, Preston argues that even if the individual errors were harmless, he is entitled to a new trial under the cumulative error doctrine.
II. STANDARD OF REVIEW
A trial court has "broad discretion" in determining whether to admit or exclude evidence, "and its judgment in the fact finding role will only be disturbed on appeal when there has been a clear abuse of discretion." State v. Watkins, 148 Idaho 418, 421, 224 P.3d 485, 488 (2009) (quoting State v. Gleason, 123 Idaho 62, 65, 844 P.2d 691, 694 (1992)) (emphasis original). However, whether evidence is relevant is a question of law this Court reviews de novo. State v. Shackelford, 150 Idaho 355, 363, 247 P.3d 582, 590 (2010). "A three point inquiry is used to determine whether a trial court has abused its discretion: (1) whether the court correctly perceived the issue as one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether the trial court reached its decision by an exercise of reason." State v. Pepcorn, 152 Idaho 678, 686, 273 P.3d 1271, 1279 (2012) (citing State v. Perry, 150 Idaho 209, 218, 245 P.3d 961, 970 (2010)). Additionally, even if there is "an incorrect ruling regarding evidence, this Court will grant relief on appeal only if the error affects a substantial right of one of the parties." Shackelford, 150 Idaho at 363, 247 P.3d at 590 (quoting Obendorf v. Terra Hug Spray Co., 145 Idaho 892, 897, 188 P.3d 834, 839 (2008)); see also I.R.E. 103(a); I.C.R. 52 ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.").
"The issue of whether a particular jury instruction is necessary and whether the jury has been properly instructed is a matter of law over which this Court exercises free review." State v. Adamcik, 152 Idaho 445, 472, 272 P.3d 417, 444 (2012) (quoting State v. Zichko, 129 Idaho 259, 264, 923 P.2d 966, 971 (1996)). However, "[a]n erroneous instruction will not constitute reversible error unless the instructions as a whole misled the jury or prejudiced a party." State v. Draper, 151 Idaho 576, 588, 261 P.3d 853, 865 (2011) (citing Shackelford, 150 Idaho at 373–74, 247 P.3d at 600–01). Whether an offense is an "included offense of the crime charged involves a question of law over which this Court exercises free review." State v. Flegel, 151 Idaho 525, 527, 261 P.3d 519, 521 (2011) (quoting State v. Rosencrantz, 130 Idaho 666, 668, 946 P.2d 628, 630 (1997)).
A. The district court erred in refusing to give Preston's requested instructions on lesser included offenses.
Preston argues the district court erred in refusing to give instructions on the lesser included offenses of misdemeanor domestic battery and false imprisonment because a view of the evidence exists that would support a finding that he committed the lesser offenses but not the greater. The State contends that the evidence did not support giving either lesser included instruction or, alternatively, that any error in failing to give the requested instructions was harmless. As explained below, we vacate the district court's judgment of conviction for felony domestic battery. However, while not necessary to the resolution of this case, we also take this opportunity to adopt the acquittal first rule set forth by the Court of Appeals.
The "acquittal first" rule is based upon Idaho Code § 19-2132. See State v. Raudebaugh, 124 Idaho 758, 762, 864 P.2d 596, 600 (1993). The relevant part of that statute provides:
If a lesser included offense is submitted to the jury for consideration, the court shall instruct the jury that it may not consider the lesser included offense unless it has first considered each of the greater offenses within which it is included, and has concluded in its deliberations that the defendant is not guilty of each of such greater offenses.
I.C. § 19-2132(c) (emphasis added). We have not previously addressed how harmless error analysis interacts with this provision in cases where the defendant challenges a district court's refusal to give an instruction on lesser included offenses. However, the Court of Appeals has considered this subsection and held that a district court's failure to instruct the jury on lesser included offenses is harmless error in cases where the jury has convicted the defendant of the greater offense. See, e.g., State v. Ransom, 137 Idaho 560, 566, 50 P.3d 1055, 1061 (Ct. App. 2002) abrogated on other grounds by State v. Porter, 142 Idaho 371, 128 P.3d 908 (2005); State v. Curtis, 130 Idaho 525, 944 P.2d 122 (Ct. App. 1996) aff'd, on other grounds 130 Idaho 522, 944 P.2d 119 (1997); State v. Hudson, 129 Idaho 478, 927 P.2d 451 (Ct. App. 1996).
The Court of Appeals in these cases reasoned that even if the jury is instructed on a lesser included offense, it also would have to be instructed to decide whether the defendant is guilty of the greater charge first, and only to consider the lesser included offense if the jury unanimously finds the defendant is not guilty of the greater charge. E.g., Hudson, 129 Idaho at 480-81, 927 P.2d at 453-54. Idaho appellate courts also presume that a jury follows the instructions it is given. Id. at 481, 927 P.2d at 454 (citations omitted). Thus, it must be presumed that a jury would follow the acquittal first instruction. In cases where the defendant challenges the failure to give the included offense instruction after a guilty verdict, this leads to the conclusion that the jury would never consider the included offense instruction because "there is no reason to believe under these circumstances, that the jury would have come to any different conclusion concerning the [greater] charge." Curtis, 130 Idaho at 528, 944 P.2d at 125. Under this analysis, any error by the district court in failing to give the lesser included offense instructions Preston requested was harmless error. We agree with the legal reasoning articulated by the Court of Appeals and hereby adopt it for analyzing harmless error in challenges to the district court's failure to give an instruction on lesser included offenses where the defendant requests the instruction and demonstrates he is entitled to it.
We also note that this Court has articulated "two theories under which a particular offense may be determined to be a lesser included offense of a charged offense." State v. Flegel, 151 Idaho 525, 527, 261 P.3d 519, 521 (2011) (quoting State v. Curtis, 130 Idaho 522, 524, 944 P.2d 119, 121 (1997). In Flegel, this Court set forth the first theory, called the statutory theory, as follows:
Under this theory, one offense is not considered a lesser included of another unless it is necessarily so under the statutory definition of the crime. We apply the Blockburger test, . . . [Blockburger v. United States, 284 U.S. 299 (1932)], to determine whether an offense is a lesser included offense under the statutory theory. An offense will be deemed to be a lesser included offense of another, greater offense, if all the elements required to sustain a conviction of the lesser included offense are included within the elements needed to sustain a conviction of the greater offense.
151 Idaho at 527, 261 P.3d at 521 (citations and internal quotation marks omitted). The Flegel Court also set forth the second theory, known as the pleading theory. "This theory holds that an offense is an included offense if it is alleged in the information [or indictment] as a means or element of the commission of the higher offense." Id ...