2014 Opinion No. 107
Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. James C. Morfitt; Hon. Juneal C. Kerrick, District Judges.
Judgment of conviction, vacated and case remanded.
Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy Appellate Public Defender, Boise, for appellant. Eric D. Fredericksen argued.
Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
LANSING, Judge. Judge GRATTON and Judge MELANSON CONCUR.
James D. Kirk appeals from his convictions for lewd conduct with a minor child under sixteen and sexual battery of a minor sixteen or seventeen years old. Kirk contends that the prosecutor improperly injected race into his case by singing the first few lines of the song " Dixie" during closing argument. Kirk submits that the act unconstitutionally tainted his trial because the alleged victims were white and he is African-American.
On August 12, 2012, at about 6 p.m., four juvenile females, seventeen-year-old J.C., thirteen-year-old M.F., fifteen-year-old A.M., and fifteen-year-old M.G., ran away from the group home where they all resided. Outside a motel in downtown Nampa the four encountered defendant Kirk, who invited the girls into his room. They all spent the night there. A.M. and M.G. left the motel together early the next morning, and J.C. and M.F. departed together later that day.
When J.C. and M.F. were apprehended by Nampa police that evening, M.F. informed an officer that Kirk had raped her during the night in the motel room and that J.C. had participated in the rape by holding her down. M.F. further told the police that she was menstruating when the sexual assault occurred, so her blood would likely be found on the bed's comforter. J.C., although ...