Opinion No. 16S
from the District Court of the Seventh Judicial District,
State of Idaho, Bingham County. Hon. Jon J. Shindurling,
of conviction for two counts of sexual abuse of a child under
the age of sixteen years and three counts of lewd conduct
with a child under sixteen, vacated; judgment of
conviction for two counts of lewd conduct with a child under
sixteen, vacated; and cases remanded.
D. Fredericksen, State Appellate Public Defender; Sally J.
Cooley, Deputy Appellate Public Defender, Boise, for
Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen,
Deputy Attorney General, Boise, for respondent.
Luis Sanchez appeals from his judgments of conviction for two
counts of sexual abuse of a child under the age of sixteen
years and five counts of lewd conduct with a child under
sixteen involving two different victims. Specifically,
Sanchez argues his convictions should be vacated because (1)
the district court improperly joined the offenses against the
two victims; (2) the State committed misconduct by allowing
its witness to comment about Sanchez's invocation of his
right to counsel; and (3) the impact of such cumulative
errors was not harmless. For the reasons set forth below, we
vacate and remand.
AND PROCEDURAL BACKGROUND
2014, the State charged Sanchez with three counts of lewd
conduct with a child, Idaho Code § 18-1508, and two
counts of sexual abuse of a child, I.C. § 18-1506, for
offenses Sanchez allegedly committed against an
eight-year-old female, J.C., in 2006. The five counts alleged
that this conduct occurred between April 1 and June 30, 2006.
the preliminary hearing in that case, another female came
forward with allegations of sexual abuse by Sanchez. The
State then charged Sanchez in a separate case with two counts
of lewd conduct with a child and one count of sexual abuse of
a child for offenses Sanchez allegedly committed against a
different eight-year-old female victim, T.C., in 2006. The
five counts alleged that this conduct occurred between April
17 and June 12, 2006.
State then filed a "motion to consolidate" the
cases for the purpose of a joint trial on the basis that the
charges arose "from the same time period and factual
situations." The State also argued that Sanchez would
not be unduly burdened by the consolidation of the cases and
that joinder would best serve the interests of judicial
efficiency. The district court held a hearing on the motion,
at which time Sanchez raised his objection. At the conclusion
of the hearing, the district court requested additional
briefing from the parties regarding the joinder motion. In
its briefing, the State argued that the charges should be
tried together pursuant to Idaho Criminal Rule 8(a) because
they constituted parts of a common scheme or plan. After
reviewing the record and considering the parties'
arguments, the district court granted the State's motion.
to trial, the State moved to dismiss the sexual abuse of a
minor charge against T.C., which the court granted. The
matter proceeded to a jury trial. Ultimately, the jury
convicted Sanchez of three counts of lewd conduct with a
child and two counts of sexual abuse of a child as against
victim J.C. ...