2013 Unpublished Opinion No. 805
Appeal from the District Court of the Second Judicial District, State of Idaho, Idaho County. Hon. Michael J. Griffin, District Judge.
Judgment of conviction for rape, affirmed.
Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.
GUTIERREZ, Chief Judge
Ronald E. Anderson appeals from his judgment of conviction entered upon a jury verdict finding him guilty of rape. For the reasons set forth below, we affirm.
FACTS AND PROCEDURE
Anderson and S.M. were employees at a remote Idaho lodge. Following an incident at S.M.'s employee residence near the lodge, which occurred shortly after midnight on June 5, 2008, Anderson was charged with raping S.M. by force or violence, Idaho Code § 18-6101(3). In our unpublished opinion in a previous appeal in the case, we summarized the evidence presented at trial:
At trial S.M. acknowledged that she had consumed some vodka before going to the bar and four beers while at the bar, but she denied being drunk. She said that on getting back to her trailer, she spoke to [Jason Black, S.M.'s roommate and fellow employee] but said nothing about asking him to invite Anderson to the trailer. She testified that she fell asleep on the couch before Black left and awoke to discover Anderson sitting on the end of the couch with his pants down. She testified that Anderson attacked her and that she struggled, but that Anderson overpowered her and raped her. She said that when she tried to push his face away Anderson bit her finger and when she tried to scream, he punched her in the face. She said that this occurred four or five times. S.M. said that she was ultimately able to distract Anderson and run to another nearby trailer for help. A resident of that trailer, [Richard MacDuff] testified that S.M. burst into his trailer naked from the waist down, crying hysterically. He said that S.M.'s face was bruised, and blood was dripping from a cut on her lip. He said that when he saw her two hours earlier she had no injuries on her face. [MacDuff] contacted the lodge manager and asked him to call the police.
An Idaho State patrol officer [Officer Stanton J. Wiggins] responded within minutes. He testified that S.M. was crying and upset, and that she had cuts on her lips, one of which was severe. The officer described the cuts as "very recent injuries" and "fresh" and that S.M. looked "brutalized" and "beat up." The officer also observed a cut to S.M.'s finger and said that the wound looked like a bite mark. He described it as "fresh" and still bleeding. The officer took photographs of S.M.'s face and finger, and these photos, which were admitted into evidence at trial, confirm his description of the injuries. The officer's photographs of the scene of the attack were also admitted at trial. One shows the victim's pants laying on the floor and turned inside out, as though they had been peeled off of her. Other pictures show the room in disarray, indicating a struggle. A week later, the officer returned to the lodge and took a picture of bruises that had appeared on S.M.'s chest. These photos also were placed in evidence.
S.M. was taken to a hospital, located some distance away, for examination. A nurse practitioner testified that S.M. was tearful and tired and said that she had been raped. The nurse practitioner confirmed numerous cuts on S.M.'s lips, which she described as "somewhat fresh, " in part because there remained dried blood in the wounds, but offered that "as far as, like, giving an exact time that is not something I feel qualified to do." The nurse also confirmed an injury to S.M.'s finger, which she described as consistent with a bite mark. The nurse also described abrasions on S.M.'s buttocks and thighs and took several photographs of the injuries, which were also admitted into evidence at trial.
A detective with the Idaho County Sheriff's Department testified that shortly after the incident, and under authority of a search warrant, he transported Anderson to the hospital for a physical examination. The detective said that while awaiting the results of a rape kit examination, Anderson admitted that he had sexual intercourse with S.M. but said that it was consensual.
Anderson testified at trial. He said that S.M. had shown him an injury to the inside of her mouth earlier in the evening and that she said she had sustained the injury when she fell while drunk. He contended that while in the bar, S.M. made sexual advances towards him. Anderson said that after S.M. departed, Black came to the bar and told Anderson that S.M. wanted to "get with" him, that he returned to the trailer with Black, and that when they entered S.M. was sitting on the couch wide awake. According to Anderson, Black then left, and Anderson and S.M. had consensual sex. Anderson contended that additional injuries to S.M.'s mouth occurred when his head accidently hit her mouth during sex. Anderson testified that after they had sex, S.M. started acting "weird" and said "they set you up." Anderson said that while he was in the bathroom, S.M. left. Shortly thereafter, Anderson contended, two lodge employees, one of them Jason Black, attacked him while hurling racial slurs.
Another lodge employee [Phil Wessler] testified for the defense. This witness said that while he was in the bar with Anderson, Black came in and told Anderson that S.M. wanted to "hook up" with Anderson and that Black wanted to "introduce" the two. The witness also said that, immediately after the incident but before his arrest, Anderson had told him that a couple of lodge employees had "jumped" him.
State v. Anderson, Docket No. 36319 (Ct. App. Aug. 25, 2010) (unpublished).
The jury found Anderson guilty as charged. He filed motions for a new trial and for a judgment of acquittal notwithstanding the verdict. The district court held a hearing on the motions, after which it granted the defense a sum of money to locate Black, who could not be found in order to testify at trial. Black was located and Anderson moved for a new trial on the basis that Black's testimony was newly discovered evidence that would probably lead to an acquittal. After a hearing, the district court granted the motion. The State appealed to this Court, and we reversed, determining the district court erred in finding that Black's testimony, had it been produced at trial, probably would have led to an acquittal. Upon remand, the district court entered a judgment of conviction and sentenced Anderson to a unified term of eighteen years, with nine years determinate. Anderson now appeals.
A. Preservation of Jury Instructions
Anderson contends the district court's failure to preserve the post-proof jury instructions in the record deprived him of an adequate record for review and violated his right to due process. A defendant in a criminal case has a due process right to a record on appeal that is sufficient for adequate appellate review of the errors alleged regarding the proceedings below. State v. Strand, 137 Idaho 457, 462, 50 P.3d 472, 477 (2002); State v. Morgan, 153 Idaho 618, 621, 288 P.3d 835, 838 (Ct. App. 2012).
Both parties agree that the written post-proof jury instructions, numbered nine through twenty, are missing from the appellate record and cannot be located. The trial transcript contains the entirety of the district court's verbal instructions to the jury, but Anderson contends the record is still insufficient because he cannot review the language in the written instructions or the manner in which they were presented. He does not make any specific contentions that the written instructions were, in some manner, erroneous; he only contends that he does not have the opportunity to review them and therefore his ability to pursue his appeal is prejudiced. Thus, Anderson argues that the exclusion of jury instructions from an appellate record constitutes a per se reversible error necessitating a new trial.
We certainly do not dispute Anderson's assertion that written instructions can be erroneous. See, e.g., State v. Draper, 151 Idaho 576, 591-92, 261 P.3d 853, 868-69 (2011) (holding it was reversible error where an element of the crime was misnumbered in the written instruction such that it may have effectively omitted several elements from the instruction). However, we are unconvinced that just because such an error is possible, the mere fact jury instructions are excluded from the record amounts to per se reversible error without a showing of prejudice. In State v. Wright, 97 Idaho 229, 231, 542 P.2d 63, 65 (1975), the appellant contended the failure of the court to record the closing arguments at trial, which was contrary to the statutory requirement that all oral proceedings be recorded unless waived by the parties, was prejudicial and resulted in a lack of fundamental fairness violating his right to due process. The Supreme Court recognized "[t]he importance and significance of judicial records, " noting, "District courts, as courts of record, speak only through their records." Id. However, the Court disagreed that the failure to record the closing arguments was a per se denial of due process. Id. "Error in the ...