Review Denied Feb. 24, 2014.
[Copyrighted Material Omitted]
Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy Appellate Public Defender, Boise, for appellant. Jason Curtis Pintler argued.
Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy Attorney General, Boise, for respondent. Daphne J. Huang argued.
PERRY, Judge Pro Tem.
Franklin Ward Osterhoudt appeals from the judgment of conviction entered upon the jury verdict finding him guilty of rape, Idaho Code §§ 18-6101, 18-6104; incest, I.C. §§ 18-6602, 18-112; and two counts of lewd conduct with a minor under sixteen, I.C. § 18-1508. Specifically, Osterhoudt challenges the district court's order allowing the State to present evidence of his uncharged misconduct over his objection and challenges the district court's ruling admitting recordings of his telephone conversations as substantive evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Osterhoudt was arrested after his fifteen-year-old daughter, H.O., disclosed that he had been sexually abusing her. Osterhoudt was charged with five counts of lewd conduct with a minor under sixteen, one count of incest, and one count of rape. The case went to trial three times. The first trial resulted in a mistrial after the jury was unable to reach a unanimous decision. Prior to the second trial, the State provided notice that it would seek to present evidence of prior bad acts committed by Osterhoudt pursuant to I.R.E. 404(b). Osterhoudt objected and an evidentiary hearing was held, wherein the State presented evidence demonstrating that when H.O. was five years old, she reported to authorities that Osterhoudt sexually abused her. The district court found that such evidence may become relevant if Osterhoudt presented evidence that H.O. recently fabricated the charged allegations. The district court also ruled that evidence that Osterhoudt had provided methamphetamine to H.O. when she was fourteen years old would be admissible for the purpose of showing that he " groomed" her for sex.
The second trial resulted in guilty verdicts on all seven counts against Osterhoudt. However, the district court granted a new trial after finding that the prosecutor committed misconduct during closing arguments. Prior to the third trial, the State again provided notice that it would seek to present evidence of prior bad acts, pursuant to I.R.E. 404(b), and the district court held that the previous court's ruling, made prior to the second trial, would apply to the third trial. Osterhoudt also filed a motion in limine to exclude recordings of telephone conversations between himself and defense witnesses that occurred while he was incarcerated. The State alleged that the telephone conversations demonstrated an effort by Osterhoudt and defense witnesses to coordinate their testimonies. The district court ruled, based on late disclosure, that the recordings would not be admitted in the State's case-in-chief.
During the third trial, H.O. testified that Osterhoudt sexually abused her between the ages of eleven and fourteen. She further testified that Osterhoudt regularly provided her with methamphetamine. Defense witnesses testified that H.O. fabricated the allegations because she was angry her father was forbidding her to see her nineteen-year-old boyfriend. In rebuttal, the State presented testimony from H.O. that she had reported sexual abuse by Osterhoudt when she was five years old.
Additionally, during cross-examination of defense witnesses, the witnesses implied that they had no discussions with each other or with the defendant regarding the coordination of their testimonies. Based on that testimony, the district court ruled that the recordings of the telephone conversations between Osterhoudt and defense witnesses had become relevant to show bias. Thereafter, over the objection of Osterhoudt, the State played the recordings to the jury.
The jury found Osterhoudt guilty of rape, incest, and two counts of lewd conduct with a minor under sixteen. The district court imposed a concurrent unified term of life with twenty-five years determinate for each count of lewd conduct and for the rape conviction. The court also imposed a concurrent determinate term of twenty-five years for the incest conviction. Osterhoudt appeals.
Osterhoudt claims: (1) the district court erred by allowing the State to present evidence that he provided methamphetamine to H.O.; (2) the district court erred by allowing the State to present testimony that H.O. reported that she was sexually abused when she was five years old; (3) the district court erred by admitting into evidence the recordings of phone conversations between Osterhoudt and defense witnesses; and (4) the accumulation of errors deprived Osterhoudt of a fair trial. We discuss each issue in turn.
A. Providing Methamphetamine to H.O.
Osterhoudt asserts that evidence he provided methamphetamine to H.O. was improper character evidence of prior bad acts. The evidence rule in question, I.R.E. 404(b), provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that the prosecution in a criminal case shall file and serve notice reasonably in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
This rule prohibits introduction of evidence of acts other than the crime for which a defendant is charged if its probative value is entirely dependent upon its tendency to demonstrate the defendant's propensity to engage in such behavior. State v. Grist, 147 Idaho 49, 54, 205 P.3d 1185, 1190 (2009); see also State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct.App.2002). Of course, evidence of a prior crime, wrong, or act may implicate a person's character while also being relevant and admissible for some permissible
purpose, such as those listed in the rule. See State v. Pepcorn, 152 Idaho 678, 688-89, 273 ...