2013 Unpublished Opinion No. 627
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.
Judgment of conviction, affirmed; order denying Idaho Criminal Rule 35 motion for reduction of sentence, affirmed.
David J. Smethers of Sallaz & Gatewood, PLLC, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
PERRY, Judge Pro Tem.
Keith Phillip Sigler appeals from his judgment of conviction for possession of material sexually exploiting a child under the age of eighteen and sexual battery of a minor child sixteen or seventeen years of age. Specifically, Sigler asserts that he was denied a fair trial due to the State's ongoing violations of the rules of evidence, rising to the level of prosecutorial misconduct. Sigler also alleges that the district court erred in denying both his motion for a mistrial, based on witness testimony regarding matters that were to be excluded from the jury, and his motion for a judgment of acquittal, asserting the evidence was insufficient to show he committed the acts for the purpose of gratifying a sexual desire. Sigler additionally appeals from the district court's denial of his Idaho Criminal Rule 35 motion for a reduction of his sentences. For the reasons set forth below, we affirm.
I. FACTS AND PROCEDURE
Sigler was the owner of a computer sales and service company in Idaho. During the summer of 2007, Sigler and one of his employees met a sixteen-year-old girl whom they encouraged to apply for work at the company. The girl later contacted Sigler, who hired her to do administrative work such as scanning documents into an electronic backup storage system and assisting other employees.
After being employed for a while, the girl asked Sigler if she could start cleaning the office to make more money. Sigler declined that offer, but offered to pay her money to be photographed. The girl inquired as to what type of photographs Sigler meant, to which he explained they would involve her taking off some of her clothes. She expressed discomfort with other people seeing such photographs, but Sigler assured her he would be the only person to view them. The girl had a digital camera she had brought to work, which Sigler used to take photographs of the girl on at least two occasions. On each occasion, Sigler asked the girl to remove articles of clothing to where she was only in her underwear. When taking the photographs, Sigler directed the girl where to sit or stand and how to pose. Sigler then transferred the digital photographs from the camera's memory card to a company computer that was connected to the company's backup system. Sigler paid the girl between $100 and $150 in cash for the photographs on each occasion. While employed by Sigler, the girl became pregnant. Allegedly because she was concerned about finances and being able to support herself and soon-to-be child, the girl used company credit cards to make personal purchases, took roughly $2000 in cash from the company safe to which she had access, and stole a company laptop that she later returned. Sigler confronted the girl on each occasion, and she eventually admitted to all of the misconduct. There were allegations that Sigler agreed not to report the girl's criminal conduct in exchange for her paricipation in sexual conduct, including being photographed and performing oral sex on Sigler. Both photography sessions took place after the girl used the company credit cards and took the cash from the safe, but prior to her taking the company laptop. There was conflicting testimony as to whether the girl quit or was fired from Sigler's employment following the incident with the laptop.
In the months that followed, Sigler showed the topless photographs of the girl to other people who worked in his office. After receiving a tip and interviewing former coworkers that had seen or knew of the photographs, police secured and executed a search warrant at Sigler's business, which revealed the photographs of the girl on computer drives in the office. Police also interviewed the girl about her relationship with Sigler. Based on the investigation, the State charged Sigler with eight felony counts after indictment by a grand jury: Count I, possession of material sexually exploiting a child; Counts II - VII, sexual battery of a minor; and Count VIII, procurement of prostitution. Sigler pled not guilty to all counts. After a four-day jury trial, the jury found Sigler guilty on the first and second counts, possession of material sexually exploiting a child, Idaho Code § 18-1507, and sexual battery of a minor, Idaho Code § 18-1508A. Of the remaining six counts, the jury returned two verdicts of not guilty and was deadlocked on the remaining four counts.
The district court ordered a presentence investigation report and a psychosexual evaluation. The court sentenced Sigler to a unified ten-year term, with five years determinate, for the possession of material sexually exploiting a child conviction and a concurrent, unified twenty-year term, with ten years determinate, for the sexual battery of a minor conviction. However, the court retained jurisdiction and, at the end of the period of retained jurisdiction, placed Sigler on probation for a period of twelve years. Sigler appealed and also filed an Idaho Criminal Rule 35 motion for a reduction of his sentences, which the district court denied. Sigler amended his notice of appeal to include the denial of the Rule 35 motion and presents four issues to this Court: whether Sigler was denied the right to a fair trial because of numerous violations by the State of the rules of evidence, rising to the level of prosecutorial misconduct; whether the district court erred in denying Sigler's motion for a mistrial; whether the district court erred in denying Sigler's motion for a judgment of acquittal; and whether the district court abused its discretion in denying Sigler's Rule 35 motion.
A. Right to a Fair Trial
Sigler argues he was denied the right to a fair trial because the prosecutor repeatedly violated the rules of evidence, resulting in 115 defense objections over the course of the four-day trial, many of which were sustained. Based on these objections, Sigler asserts the multiple violations of the rules of evidence eventually rose to the level of prosecutorial misconduct and "[a]t some point" violated his right to due process and a fair trial.
The State asserts that Sigler is required to meet the fundamental error standard because he did not specifically assert to the district court that his due process rights were violated. The State further argues that, while multiple trial errors--harmless in themselves--can be aggregated under principles of due process to determine the fairness of a trial, Sigler cites no authority that multiple correct rulings by the district court may be aggregated under the auspice of prosecutorial misconduct to show that the trial was unfair.
Here, Sigler bases his argument on a series of objections he made to witness testimony that were ruled upon by the district court. Sigler's assertion that an accumulation of these objected-to errors violated his rights to due process and a fair trial does not negate the fact that each alleged error was objected to before the district court. Therefore, we will address whether the numerous alleged violations of the rules of evidence by the prosecutor constituted misconduct and resulted in a denial of due process or a fair trial.
A defendant is entitled to a fair trial, but not a perfect trial. State v. Enno, 119 Idaho 392, 408, 807 P.2d 610, 626 (1991); State v. Estes, 111 Idaho 423, 428, 725 P.2d 128, 133 (1986). Our system of criminal justice is adversarial in nature and the prosecutor is expected to be diligent and leave no stone unturned, but the prosecutor is nevertheless expected and required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). In reviewing allegations of prosecutorial misconduct, we must keep in mind the realities of trial. Id. When there has been a contemporaneous objection, we determine factually if there was prosecutorial misconduct, then we determine whether the error was harmless. Id.; see State v. Hodges, 105 Idaho 588, 592, 671 P.2d 1051, 1055 (1983); State v. Phillips, 144 Idaho 82, 88, 156 P.3d 583, 589 (Ct. App. 2007). A conviction will not be set aside for small errors or defects that have little, if any, likelihood of having changed the results of the trial. State v. Pecor, 132 Idaho 359, 367-68, 972 P.2d 737, 745-46 ...