2015 Opinion No. 24
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.
Judgment of conviction and sentences of a unified term of twenty years, with a minimum period of confinement of ten years, for battery with intent to commit rape and a consecutive indeterminate term of fifteen years for assault with intent to commit rape, affirmed.
Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
MELANSON, Chief Judge
Domingo Jesus Diaz appeals from his judgment of conviction for assault with intent to commit rape and battery with intent to commit rape. He contends that the district court erred in denying his motion to sever the two counts and allowing the state to introduce I.R.E. 404(b) character evidence. He also contends that his sentences are excessive. For the reasons set forth below, we affirm.
I. FACTS AND PROCEDURE
On May 21, 2013, an individual, later identified as Diaz, was waiting outside of a bar. An intoxicated woman exited the bar around midnight and Diaz asked her for a cigarette. He then began following her as she walked to a friend's home a short distance away. She eventually noticed that Diaz was following her and asked what he was doing. Diaz did not respond and continued to follow her. She again asked him what he was doing, and he again did not respond. Instead, he reached around her and poked at her genitals twice. The victim protested and tried to run away. Diaz chased the victim, tackled her to the ground, straddled her, and pinned down her arms. Diaz began manipulating his waistband area and the victim screamed for help, drawing the attention of at least one resident in the area. Diaz then punched the victim in the face and fled.
Approximately one week later, Diaz was again waiting outside the same bar late at night and began following another intoxicated woman as she left. Diaz tried to coax the woman toward darker and more isolated areas, but the woman refused. She entered another nearby bar, where she remained for a few hours. Diaz waited outside the second bar until the woman left, and he again followed her. The woman asked him what he was doing and he responded that they were friends, which the woman denied. She told Diaz that it was not okay to wait for her and follow her, but Diaz continued to do so. The woman began walking faster as Diaz continued to try to coax her into the shadows. She eventually began to run and Diaz gave chase, grabbing her just as she reached her sister's house. She shoved him, breaking free from his grip, and ran to the door. She rang the doorbell and Diaz fled.
The first victim reported the incident to police and identified Diaz from a photo lineup. When questioned by police about the first incident, Diaz described the second incident that had not yet been reported. The police subsequently spoke to the second victim, who also identified Diaz from the same photo lineup.
Diaz was charged with battery of the first victim with intent to commit rape, I.C. §§ 18-903(a) and 18-911, and assault of the second victim with intent to commit rape, I.C. §§ 18-901 and 18-909. The two counts were charged in the same indictment. Arguing that unfair prejudice would result from a joint trial, Diaz filed a motion to sever the charges pursuant to I.C.R. 14, which the district court denied after a hearing. The state then filed notice of its intent to use I.R.E. 404(b) evidence of other bad acts--specifically, evidence forming the basis in each count in the state's case-in-chief for the other count--and sought a motion in limine allowing that evidence, which the district court granted after a hearing. The jury found Diaz guilty of both counts. The district court sentenced Diaz to a unified term of twenty years, with a minimum period of confinement of ten years, for battery with intent to commit rape, and a consecutive indeterminate term of fifteen years for assault with intent to commit rape. Diaz appeals.