[Copyrighted Material Omitted]
2014 Opinion No. 32
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Benjamin R. Simpson, District Judge.
Judgment of conviction and sentences for three counts of lewd conduct with a minor, affirmed; order denying I.C.R. 35 motion for reduction of sentences, affirmed.
Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
LANSING, Judge. Judge GRATTON and Judge MELANSON CONCUR.
[156 Idaho 562] LANSING, Judge
Frank Donald Marks appeals his judgment of conviction for three counts of lewd conduct with a minor and the order denying his motion for reduction of his sentences. At issue is whether the district court erred at trial by excluding the testimony of a medical expert for the defense and by admitting testimony of uncharged sexual misconduct with another minor, and whether Marks's sentences are excessive.
Marks was charged with three counts of lewd contact with a minor under sixteen, Idaho Code § 18-1508. The charges were based on allegations that Marks had sexually abused two biological daughters and a stepdaughter living in his home. Marks's first trial ended in a mistrial when the jury was unable to reach a verdict. At his second trial, the jury found Marks guilty of all three counts. The district court imposed concurrent unified sentences of life with thirty years fixed. Marks filed a motion under Idaho Criminal Rule 35 to reduce his sentences. That motion was denied. Marks appeals.
Marks first asserts two claims of trial error. He contends that the court abused its discretion and violated his constitutional right to present a defense by excluding a physician from testifying for the defense. He also argues that the trial court erred by permitting a daughter who is not an alleged victim in this case to testify that Marks had also molested her.
A. Exclusion of Medical Expert's Testimony
The alleged victims in this case underwent medical examinations while in the custody of the Department of Health and Welfare. Marks had the records of these examinations reviewed by Dr. Stephen Guertin, a physician who is board-certified in pediatric medicine and an expert in child abuse diagnosis and treatment. Dr. Guertin prepared a report concerning the medical examinations and his review of the evidence produced at the preliminary hearing and at Marks's first trial. The majority of his report recounted the testimony of the alleged victims and gave his observations of inconsistencies in the witnesses' testimony and changes in each witness's statements over time. In these portions of the report, Dr. Guertin drew ...