This decision is not final until exception of the 21 day petition for rehearing period. Pursuant to rule 118 of the Idaho Appellate Rules
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2014 Opinion No. 97
Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Darren B. Simpson, District Judge.
Nevin, Benjamin, McKay & Bartlett LLP; Deborah Whipple, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy Attorney General, Boise, for respondent.
GUTIERREZ, Chief Judge. Judge LANSING, CONCURS. Judge GRATTON, CONCURS as to Part II A, CONCURS IN THE RESULT as to Part II B.
GUTIERREZ, Chief Judge
Jonathan Earl Folk appeals from his judgment of conviction after a jury found him guilty of lewd conduct with a minor child under sixteen. For the reasons that follow, we vacate the judgment of conviction and remand the case for further proceedings.
FACTS AND PROCEDURE
This is the second direct appeal for this case. In State v. Folk, 151 Idaho 327, 256 P.3d 735 (2011), the Idaho Supreme Court vacated the judgment of conviction and remanded the case. Subsequently, a second trial was conducted in 2012, and this appeal arises out of that trial. The Idaho Supreme Court summarized the relevant facts in the first appeal:
On December 25, 2007, at about 5:30 p.m., the mother of three minor children (Mother) arrived home after running an errand and went into the kitchen to help her grandmother finish preparing Christmas dinner. As she was walking to the kitchen, Jonathan Folk (Defendant) was in the living room. He had come over to pick up a house guest. After about ten to fifteen minutes, Mother walked into the living room and asked her husband where their five-year-old son (Child) was. He said that he thought Child was in his bedroom. Mother walked to Child's room, and as she was nearing the open door to the room she heard Child say, " That's gross." As she walked into the room, she saw Child lying on his back on the bed and Defendant kneeling down in front of Child with Child's legs around Defendant and his hands on Child's hips. The bed was a small child's bed, about ten inches off the floor. Mother asked what they were doing, and both Child and Defendant said they were just playing. Both Defendant and Child were fully clothed, and it did not appear that either of them had just pulled or zipped their pants up. Mother did not see any signs of any type of sexual act by Defendant. Defendant stood up and walked out of Child's room, and then returned and sat on the floor while Child picked up his toys pursuant to Mother's instructions. Defendant and the guest left about one and one-half hours later. At about 4:00 a.m. that night, Child awakened Mother and stated that he had just had a nightmare. Mother asked what it was about, and Child responded that it was about what that guy did to Child last night. Mother asked what guy, but Child would not answer. Later that morning, Mother telephoned the police and then asked Child what had happened last night. Child answered that Defendant had placed his mouth on Child's penis.
Folk, 151 Idaho at 331, 256 P.3d at 739. As a result of the 2012 trial, there were some factual distinctions, as compared to the facts summarized by the Idaho Supreme Court. The grandmother testified that the child came to her room first after having the nightmare, but the child " didn't really say too much to [her] about the dream." She then testified that she and the child went to the mother's room. The mother testified that the child came to her room around 2:30 a.m. or 3:00 a.m., instead of 4:00 a.m. Most importantly, the mother testified that the child did tell her the name of the " bad guy," right after the child had the nightmare, saying, " Jon, Jonathan [Folk]."
Before the 2012 trial commenced, Folk filed a pro se motion in limine to exclude testimony relating to why the mother called the police. Amongst the statements challenged
by Folk were the hearsay statements by the child telling the mother that he had a nightmare about what the bad guy had done to him the night before and identifying Folk as the bad guy (collectively, the child's statements). After the State opposed the motion, the district court determined that the child's statements were admissible under the excited utterance exception to the hearsay rule. Also before the start of the 2012 trial, the State filed a notice of its intent to use three prior bad acts, as defined under Idaho Rule of Evidence 404(b), against Folk. Folk objected to the intended introduction of this evidence, and the district court conducted a hearing. Relevant to this appeal, the district court determined that two prior convictions for molesting a child, one resulting from a 1992 incident and one resulting from a 1999 incident, were relevant to prove motive and intent. The district court also held that the conviction arising out of the 1999 incident was relevant to prove opportunity.
The case proceeded to trial. The child testified as to his memory of the events. Folk proceeded to cross-examine the child and impeach the child with statements the child had made during an interview with a detective, during the preliminary hearing, during the first trial, and during an interview with a licensed social worker at a center approximately six months before the 2012 trial.
Over Folk's objection, the State presented testimony of the male victim from the 1992 incident. The 1992 victim stated that he was around four years old when he was staying at a hotel with his family. He had been at the hotel pool with his mother one day when he met Folk at the pool. The 1992 victim's mother left the boy in Folk's care at the hotel pool, after Folk volunteered to watch the boy. Folk and the boy went into the hot tub; Folk pulled down the boy's swim trunks and bounced the boy on his lap in the hot tub. On another day, Folk and the boy went to Folk's hotel room. Folk told the boy to take off his swim trunks, which the boy did, and then Folk told the boy that he needed to capture " pictures of [his] private parts for something." Finally, while Folk and the boy were in the hot tub on another occasion, Folk went underwater, pulled down the boy's swim trunks, and put his mouth on the boy's penis. During the testimony at the 2012 trial, the prosecutor admitted into evidence and then published to the jury a photograph of the boy taken around the time of the lewd conduct. Additionally, the prosecutor admitted into evidence a certified copy of the judgment of conviction against Folk that arose out of the 1992 incident.
The State also presented testimony of the mother of the victim of the 1999 incident, over Folk's objection. The victim's mother had visited a laundromat with her six-year-old son, four-year-old son, and baby. Her boys went back to an arcade game in the laundromat, and she started loading clothes into a washing machine. She then saw Folk " running to get some quarters," and assumed that Folk was obtaining quarters for his washing machine. After she put the clothing into the washing machine, the mother looked at where her boys were and " saw Mr. Folk snatching his hand out of [the four-year-old boy's] pants." The mother called her boys over to her, and her four-year-old son told her, " Mama, that man was feeling on my peepee." During the testimony at the 2012 trial, the prosecutor admitted into evidence and then published to the jury a photograph of the four-year-old boy taken around the time of the lewd conduct. Additionally, the prosecutor admitted into evidence a certified copy of the judgment of conviction against Folk that arose out of the 1999 incident.
Folk presented testimony from witnesses in his defense, and the State called rebuttal witnesses. The jury found Folk guilty of lewd conduct with a minor child under sixteen. The district court sentenced ...