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State v. Jimenez

Supreme Court of Idaho

July 22, 2016

STATE OF IDAHO, Plaintiff-Respondent,
v.
MARCOS APOLLO JIMENEZ, Defendant-Appellant.

         Term 2016 Opinion No. 80

         Appeal from the District Court of the Seventh Judicial District of the State of Idaho, in and for Bingham County. Hon. Gregory W. Moeller, District Judge.

         The judgment of the district court is affirmed.

          Jenny C. Swinford, Deputy State Appellate Public Defender, Boise, argued for appellant.

          Mark W. Olson, Deputy Attorney General, Boise, argued for respondent.

          EISMANN, Justice.

         This is an appeal out of Bingham County from a judgment sentencing a child molester to prison. He contends that the district court violated his Fifth Amendment rights by drawing negative inferences based upon his refusal to submit to a psychosexual evaluation. We affirm the judgment of the district court.

         I.

         Factual Background.

         In September 2013, 44-year-old Marcos Jimenez ("Defendant") was at his girlfriend's apartment after she had gone to work leaving him to care for her 17-year-old daughter, who had the mental capacity of a 10-year-old and a learning disability. Defendant had told the daughter that he would take her to town to buy her a computer, but first she had to take a shower. While she was doing so, he removed her clothing from the bathroom. When she came out of the bathroom with a towel wrapped around her, Defendant was waiting and told her that he wanted to show her something. He took her clothing into the bedroom, and she followed him to regain her clothing. Once in the bedroom, he put gel on his fingers and told her he wanted to show her what an orgasm was like. He then penetrated her vagina with his finger. She felt very uncomfortable and told him she had to use the bathroom. When she came out of the bathroom, he told her "just a few minutes more, " but she protested. He then picked her up and put her on the bed. After climbing on top of her, he began kissing her neck and then penetrated her vagina slightly with his penis. She told him to stop and pushed him off. He left the room, and after she was dressed he took her to town and bought her a computer.

         Defendant was charged with sexual battery of a child seventeen years of age and rape. Pursuant to a plea bargain, he pled guilty to the sexual battery charge, and the State dismissed the rape charge. The district court ordered Defendant to have a psychosexual evaluation, which included a polygraph examination, and informed him that he had a Fifth Amendment right to refuse to answer any questions during that evaluation. The court set the matter for sentencing.

         Defendant ultimately decided to exercise his right to remain silent and refused to have the psychosexual evaluation. The court sentenced Defendant to eighteen years in the custody of the Idaho Board of Correction with three years fixed followed by an indeterminate period of fifteen years. The court also imposed a fine of $5, 000 and a fine of $5, 000 that is payable to the girl and her mother. Defendant was also required to register as a sex offender for the rest of his life. Defendant timely appealed. He contends that the court violated his Fifth Amendment rights because it drew adverse inferences from his refusal to submit to the psychosexual evaluation.

         The appeal was initially heard by the Idaho Court of Appeals, which affirmed the judgment of the district court. In cases that come before this Court on a petition for review of a decision of the Court of Appeals, we do not review the decision of the Court of Appeals. We hear the case anew as if the appeal had initially come directly to this Court. State v. Suriner, 154 Idaho 81, 83, 294 P.3d 1093, 1095 (2013).

         II.

         Did the District Court Violate Defendant's Fifth Amendment ...


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