[Copyrighted Material Omitted]
2014 Opinion No. 93
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.
Judgment of conviction for four counts of lewd conduct with a minor, affirmed.
Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant. Dennis A. Benjamin argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Mark W. Olson argued.
BURDICK, Chief Justice. Justices EISMANN, J. JONES, W. JONES and HORTON, CONCUR.
BURDICK, Chief Justice
Michael Eugene Koch appeals from his judgment of conviction, entered following a verdict, for four counts of lewd conduct with a minor under sixteen. On appeal, Koch argues that the Ada County district court made multiple errors in the admission of evidence that warrant reversal of his judgment of conviction. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A grand jury indicted Koch on four counts of lewd conduct with a minor under sixteen on November 15, 2011, with " C.C." named as the complaining witness in all counts. Count I alleged the crime was committed " by manual to genital and/or oral to genital contact" between January and May 2011. Counts II, III, and IV all alleged genital to genital contact in April 2011.
Koch's daughter, T.K., was a classmate and friend of thirteen-year-old C.C. During her eighth grade year, C.C. spent increasing amounts of time at the Kochs' home as she began to have problems at home.
At Koch's trial, C.C. testified that in the spring of 2011 Koch drove her to a street alongside a subdivision where he digitally penetrated her and she performed oral sex on him. C.C. testified that they engaged in sexual intercourse on three occasions at his house when his wife and daughter were out. C.C. testified that she did not disclose her relationship with Koch until the fall of 2011, when she was admitted to Intermountain Hospital following a suicide attempt.
The State played an audio recording of a confrontation call officers had arranged between C.C. and Koch. In the recorded call, C.C. confronted Koch about their sexual relationship. In the course of the call, Koch did not expressly admit sexual contact with C.C., but also did not refute C.C.'s accusations. He expressed his love for C.C. and his fear that he was going to jail.
Following trial, the jury found Koch guilty on all four counts. The district court imposed concurrent unified 25-year sentences, with five years fixed, on each count. Koch timely appealed from his judgment of conviction.
II. ISSUES ON APPEAL
1. Whether substantial and competent evidence supports the district court's decision that the State provided sufficient expert disclosures.
2. Whether the district court abused its discretion in overruling Koch's objection to comments the prosecutor made during her opening statement.
3. Whether the district court abused its discretion in overruling Koch's foundation objections.
4. Whether the district court erred in overruling Koch's relevance objections.
5. Whether the district court abused its discretion in overruling Koch's objections to certain testimony as nonresponsive.
6. Whether the district court erred in allowing Detective McGilvrey to testify to Salina Koch's prior statement for impeachment purposes.
7. Whether Koch has shown cumulative error.
A. Substantial and competent evidence supports the district court's finding that the State provided sufficient expert disclosures.
Koch contends that the district court erred in concluding that the State complied with the disclosure requirements of Idaho Criminal Rule 16(b)(7) regarding expert witness Mydell Yeager. Specifically, Koch contends that the disclosures were insufficient under Rule 16(b)(7) because the State failed to disclose Yeager's opinions, and the facts and data behind those opinions. The State responds that the written summary outlining Yeager's opinions and expected testimony it provided met the rule's requirements and that the State was not required to disclose any " facts or data" because Yeager's expert testimony did not rely on any facts or data generated by this case and because her opinions regarding child sex abuse disclosure were not generated from any identifiable data source. On review, this Court will uphold a district court's decision regarding discovery violations if it is supported by substantial and competent evidence in the record. State v. Stradley, 127 Idaho 203, 207-08, 899 P.2d 416, 420-421 (1995).
Idaho Criminal Rule 16(b)(7) provides that:
Upon written request of the defendant the prosecutor shall provide a written summary or report of any testimony that the state intends to introduce pursuant to Rules 702, 703 or 705 of the Idaho Rules of Evidence at trial or hearing. The summary provided must describe the witness's opinions, the facts and data for those opinions, and the witness's qualifications.
In response to Koch's I.C.R. 16(b)(7) discovery request, the State disclosed the following written summary regarding Mydell Yeager:
Ms. Yeager's curriculum vitae is attached. She'll testify to the dynamics of delayed disclosure as it relates to child sexual abuse. The state intends to elicit expert testimony from Mydell Yeager regarding
behavior of children who have been sexually abused and Ms. Yeager will testify that it is rare that a child immediately discloses their sexual abuse especially when they know the perpetrator. Ms. Yeager will testify about the dynamics of child sexual abuse as it relates to grooming a victim, keeping the abuse secret, the effects and threats on whether a child chooses to disclose.
While the State's written summary was read into the record at a pretrial hearing, a copy of the actual disclosure is not in the record. Thus, Yeager's curriculum vitae is not in the record.
At a May 2, 2012 pretrial conference, Koch objected to the State's disclosure as insufficient because it did not include a summary or report written by Yeager. The court overruled this objection, holding that I.C.R. 16(b)(7) did not require the State to have its expert witness produce a written report where none had previously existed and that Koch could object to any of Yeager's testimony that varied from the State's disclosed summary.
Koch objected to the State's disclosure again just prior to Yeager's trial testimony, arguing that it was insufficient because it did not include the facts and data underlying her opinion. The State responded that its disclosure was sufficient, pointing out that Yeager had not written any reports for this case and that she had been available at all times to talk to the defense. The court overruled Koch's objections, stating that " if there is no data, they don't have to produce data. She is simply an opinion witness."
On appeal, Koch argues that the State's disclosure was not an adequate summary of Yeager's opinions and that the State failed to disclose the facts and data for those opinions. This Court has never addressed the scope of I.C.R. 16(b)(7)'s disclosure requirements. This rule is almost identical to the Federal Rule of Criminal Procedure 16(a)(1)(G). The main difference between these two rules is that the federal rule requires " the bases and reasons for those opinions," whereas the Idaho rule requires " the facts and data for those opinions." Thus, the federal rule arguably requires broader disclosure.
Although the federal rule may be somewhat broader, case law interpreting the federal rule is still instructive. In a possession of a gun in furtherance of trafficking case, the prosecution provided a similar disclosure to the disclosure provided in this case:
The street value of the crack cocaine and that, based on their training and experience, the quantity of crack cocaine seized in this case is consistent with possession for distribution to others and not for personal use ... [and] the methods of operation of narcotics distributors, including ... the utilization of firearms as part of the drug trade.
United States v. Lipscomb, 539 F.3d 32, 37 (1st Cir. 2008). As in this case, the defendant's objection was based on an alleged failure to provide notice regarding the " bases for [the witnesses'] ultimate opinion[s]." Id. (emphasis in original). The First Circuit Court of Appeals ruled that while the Government's notice that the officers would be testifying on the basis of their " training and experience" was by no means detailed, it was enough to satisfy the requirements. Id. at 38. The court went on to note that had " the testimony involved a more complex subject matter, as found in cases involving technical or scientific evidence, more detailed notice may have been required." Id.
Here, the State's disclosures were sufficient. The State provided Koch with a summary of Yeager's opinions, which did not
involve a particularly technical or scientific subject matter, and informed him of the main opinion she was going to testify to: " it is rare that a child immediately discloses their sexual abuse especially when they know the perpetrator." While the State did not specifically disclose that Yeager's opinions were based on her training and experience, which would be the better practice, it did provide Yeager's curriculum vitae. However, her curriculum vitae is not in the record on appeal, so this Court cannot review how extensive it was or whether it listed her own publications or ones she may have relied on. Because Koch is assigning error, he has the responsibility to include relevant exhibits in the record before this Court. Fritts v. Liddle & Moeller Constr., Inc., 144 Idaho 171, 173, 158 P.3d 947, 949 (2007). " When the record on appeal does not contain the evidence taken into account by the district court, this Court must necessarily presume that the evidence justifies the decision and that the findings are supported by substantial evidence." Id. Moreover, the bases for Yeager's conclusions were adequately explored by defense counsel on cross-examination with no particular difficulty. See Lipscomb, 539 F.3d at 38 (stating that the goal of Rule 16 is " to provide the opponent with a fair opportunity to test the merit of the expert's testimony through focused cross-examination" ).
Accordingly, we hold that substantial and competent evidence supports the district court's decision that the State's expert disclosures were sufficient.
B. The district court did not abuse its discretion in overruling Koch's objection to the prosecutor's comments made during her opening statement.
Koch contends that the district court erred in overruling his objection to comments made by the prosecutor during the State's opening statement. Specifically, Koch contends that the court should have sustained his objection to the prosecutor's statement that Koch talked to C.C. about " things he ...