2015 Opinion No. 89
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Steven J. Hippler, District Judge.
Sara B. Thomas, State Appellate Public Defender; Eric D. Fredericksen, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
GUTIERREZ, Judge. Chief Judge MELANSON and Judge HUSKEY CONCUR.
Jose Antonio Ruiz appeals from his judgment of conviction after he was found guilty of two counts of lewd conduct with a minor and one count of sexual abuse of a child. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Ruiz was charged with two counts of lewd conduct with a minor under sixteen, Idaho Code § 18-1508, and one count of sexual abuse of a child under sixteen, I.C. § 18-1506. Prior to trial, Ruiz moved to exclude evidence that he had sent text messages to the victim. In ruling evidence of the content of the messages admissible, the court expressed concern over how the nature of the text messages might be characterized during trial, stating, " My concern here, counsel, is frankly because the jury can't view for themselves the texts but if they are described in some way to be salacious, that would be unfair prejudice when the jury themselves can't look at the texts." The State planned to introduce evidence of content of the messages through testimony from the victim's cousin who saw the text messages on the victim's phone. The State agreed to instruct the witness not to describe the texts as explicit during her testimony.
The State's first witness was the victim's father. During direct examination by the State, the father stated, " [the victim's cousin] told me that she had seen text messages to [the victim] from [Ruiz] and that they were in a sexual matter or explicit." Ruiz objected to the father's statement, and the district court excused the jury so as to discuss the objection with counsel on the record. Both parties and the district court agreed that the victim's father's testimony violated the court's pretrial evidentiary ruling. Ruiz moved for a mistrial, arguing that a curative instruction would not remedy the prejudicial effect of the testimony. The court ultimately denied Ruiz's motion for mistrial, instead giving the following instruction to the jury:
Ladies and gentlemen of the jury, [the victim's father] did not see any of the text messages that you may hear testimony about later in this case. His characterization or any other person's characterization of those text messages is not relevant and it's not something you should consider. I want you to strike from your mind his testimony about the text messages and any characterization about them. You're to consider only what you hear the testimony the actual content of any text messages are. And then it is up to you and only you to ...