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State v. Bailey

Supreme Court of Idaho

April 10, 2017

STATE OF IDAHO, Plaintiff-Respondent,
PATRICK JAMES BAILEY, Defendant-Appellant.

         2017 Opinion No. 28

         Appeal from the District Court of the First Judicial District of the State of Idaho, in and for Kootenai County. Hon. John T. Mitchell, District Judge.

         The judgment of the district court is affirmed.

          Erik R. Lehtinen, Deputy State Appellate Public Defender, Boise, argued for appellant.

          Kenneth K. Jorgensen, Deputy Attorney General, Boise, argued for respondent.


         This is an appeal out of Kootenai County from the sentence of life in the custody of the Idaho Board of Correction for the crime of committing lewd conduct upon the Defendant's ten-year-old daughter, who was so severely impaired by autism that she could not speak a full sentence or describe anything that had happened to her. We affirm the judgment of the district court.


         Factual Background.

         On October 26, 2014, the mother ("Mother") of a severely autistic, ten-year-old daughter came home and discovered Patrick Bailey ("Defendant"), the man with whom she had been living with for seventeen years, lying on top of their daughter ("Daughter") in the master bedroom and "rubbing his penis against her vagina and midsection area in a thrusting-sexual type motion." He had his pants undone and partially lowered, was kissing her all over her neck, was trying to wrap her leg around his waist, and was trying to hold her arm down as she was wriggling and trying to get out from under him. Daughter was dressed in pajama shorts and a short top. Her autism was so severe that she was unable to communicate verbally or with sign language, wore a diaper, and was unable to care for herself. During the proceedings, Defendant admitted to sexually molesting her four prior times when Mother and their son were out of the house.

         Defendant ultimately pled guilty to one count of lewd conduct with a minor under sixteen years of age. The district court held a sentencing hearing on March 31, 2015, at which it sentenced him to life in the custody of the Idaho Board of Correction, with seven years fixed and the balance indeterminate. Defendant filed a motion pursuant to Idaho Criminal Rule 35(b) seeking a reduction in his sentence, and the court held a hearing on that motion on July 29, 2015. After considering the additional evidence offered by Defendant and the arguments of the parties, the court denied the motion. Defendant then timely appealed.


         Did the District Court Abuse Its Discretion in Imposing the Sentence?

         Defendant contends that the district court abused its discretion in imposing the sentence. "When considering whether the trial court abused its discretion, this Court considers: (1) whether the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the boundaries of its discretion and consistently with the legal standards applicable; and (3) whether the trial court reached its decision by an exercise of reason." State v. Mcintosh, 160 Idaho 1, 8, 368 P.3d 621, 628 (2016). To reach a decision by an exercise of reason, the court must take into consideration "'the facts and circumstances which are necessary to make a sound, fair, and just determination, and a knowledge of the facts upon which the discretion may properly operate.'" State v. Hooper, 119 Idaho 606, 611, 809 P.2d 467, 472 (1991).

         A. Did the District Court Base Its Sentence Upon Erroneous Factual Findings?

         Defendant first argues that the district court abused its discretion by basing its decision on clearly erroneous factual findings. Each allegedly erroneous finding will be addressed below.

         1. Did the district court erroneously conclude that Defendant lied about passing out immediately after the incident?

         Defendant contends that the district court erred when it found that he "lied about passing out immediately after the incident." (Emphasis added.) The presentence report included a verbatim account of Defendant's version of what occurred with respect to the crime to which he pled guilty. His version included the statement that after Mother caught him on top of Daughter, "I lifted myself off of [her], laid down and passed out." The significance of this statement was to show that he was so intoxicated when he committed the offense that he passed out immediately after being caught. At the sentencing hearing, the district court stated, "I have to tell you that I don't believe that that's what happened, that you got up and passed out." Defendant contends on appeal that the court's statement was clearly erroneous.

         The police report records Mother as recounting that she and Defendant had coffee at about 9:00 a.m.; that their son was not home because he had stayed the night with a friend; that around 10:00 a.m. Defendant left to run an errand and returned about 10:30 a.m., when he began to drink beer; that Mother left home at about 2:00 p.m. to run some errands; and that she returned home at about 3:00 p.m. and discovered Defendant sexually molesting Daughter. She testified at the sentencing hearing that when she caught Defendant on top of Daughter, he did not seem to be intoxicated. On cross-examination, she testified that she saw Defendant purchase two beers and complete drinking one before she left to run the errands. They were 24-ounce beers with about 8% alcohol content. On redirect examination, she explained that he started drinking that brand of beer in 2007, that during the ensuing years his tolerance for alcohol increased, and that by the time of the incident he had to drink three or four of them before she could see it in his face.

         Defendant contends on appeal that it was undisputed that he passed out immediately after he was caught because even Mother "told the investigating officer that, 'After checking [Daughter] out, [Mother] went upstairs to find Patrick passed out snoring on the bed. For the majority of the remainder of the day, Patrick was mostly sleeping.' " This statement ignores Mother's testimony at the sentencing hearing. She testified that after discovering Defendant molesting Daughter, she took their daughter downstairs, checked her out from head to toe, and took her diaper off and checked her. She then had her try on a new coat and shirt that she had just purchased for her, and they watched a movie. After the movie was over, Mother went upstairs and found Defendant lying on the couch. Mother did not testify as to the amount of time that had elapsed between taking Daughter downstairs and returning upstairs to see Defendant lying on the couch, but it was clearly not immediately after he got off their daughter. The district court found Mother's testimony credible. It stated, "[Y]ou discuss alcohol, and your version of the events on Page 4 of the PSI does nothing to discredit your wife's testimony that in her opinion you were not intoxicated on the day in question."[1]

         2. Did the district court erroneously find that Defendant groomed Daughter and engaged in predatory behavior?

         During the sentencing hearing, the district court stated that Defendant's conduct was predatory. In context, the court said:

The common thread on Page 4 of the PSI [presentence report] and at Page 9 of the events in question and 10 on the other four incidents is that it's always when your wife and your son are away from the house, and that is beyond mathematical chance of being non-grooming, non-predatory behavior ....
[E]ven if there were evidence of that [only four other instances of molesting his daughter], it's still predatory; it's at best opportunistic but still premeditated. You're waiting every time until your wife and your son leave so that you can do these horrible things to [Daughter]. It's that plain and simple. None of this is happening by happenstance. You don't find yourself drunk with [Daughter] and you don't realize that your wife and your son are gone. This is all premeditated on your part every single time ....

         Black's Law Dictionary defines a "predatory crime" as "[a] crime that involves preying on and victimizing individuals. • Examples include robbery, rape, and carjacking." Black's Law Dictionary 453 (10th ed. 2014). Under that definition, Defendant's conduct was certainly predatory. Defendant contends that we should view the district court's comments as using a definition of "predatory" that was deleted from a statute in 2011. Defendant does not present any logical argument as to why the district court would have intended a statutory definition that was deleted years earlier. As recorded in the police report, after being arrested Defendant told the investigating officer that he had molested Daughter four prior times. The officer recorded Defendant as stating, "Each of these four times occurred on Friday evenings while [Mother] was at Bingo and [their son] was at a friend's house for a sleep over." It is clear from the context that the court was focused upon the fact that Defendant had planned the sexual molestation of his daughter each of the times he reportedly molested her, which is consistent with the definition of predatory in Black's Law Dictionary.

         Defendant points out that the expert who performed the psychosexual evaluation of Defendant described the offense as "opportunistic" and testified that Defendant "found his opportunity in time because he was her caregiver." Defendant argues that it was clear from the expert's testimony at the hearing on the motion for reduction of sentence that he "was obviously distinguishing this 'opportunistic' behavior from 'predatory' behavior-where the offender actively seeks out sexual victims and often 'grooms, ' i.e., manipulates, them into submitting to sexual contact." This argument misstates the facts. The expert was not distinguishing opportunistic behavior from predatory behavior.

         During the hearing on the motion for reduction of sentence, defense counsel asked the expert, "Given that conversation you just had about those two types of offenders, where do you think Mr. Bailey falls?" The expert answered, "Due to historical facts, criminal history and the relationship he had to the victim, I viewed it as more of an opportunistic situation because the way it was set up and while he found his opportunity in time because he was her care giver." The two types of offenders to which the question referred were an opportunistic offender and an impulsive offender, not an opportunistic offender and a predatory offender. The line of questioning began with defense counsel stating, "Counsel asked you about impulsive versus opportunistic, and I think you got cut off as you were distinguishing the two in terms of offense behavior." There was no mention of a predatory offender in the questions asked the expert or in his responses.

         The expert testified that the difference between an opportunistic offender and an impulsive offender was that the opportunistic offender weighs the probability of being caught while the impulsive offender does not. He wrote in the psychosexual evaluation report: "It is most likely [Defendant] viewed the situation as opportunistic and estimated the probability of being caught as low. Although he indicated the offense was somewhat impulsive, he generally doesn't present as an individual that would not consider the potential consequences of his actions." The expert also wrote: "Mr. Bailey stated he did not believe he would be caught sexually acting out on his daughter. This appears to be in line with his opportunistic orientation."

         With respect to whether there was "grooming, " the expert testified that he "didn't have any specific evidence to say that it was a pattern." He added that "based on the victim's behavioral responses, and you know, one can make that assumption, but in the end I try to avoid making the assumption and just go with what the evidence shows." In response to a follow-up question asking whether the lack of specific evidence is why he did not "determine that there was grooming-specific type behaviors here?" the expert responded: "Correct. In the treatment setting that would be further explored, and if that was applicable then that-you know, that would be addressed as a dynamic risk in the course of treatment." Thus, the expert did not say that Defendant had not engaged in grooming behavior with respect to his daughter. He stated that the facts of which he was aware did not show grooming, although one could assume there was grooming, ...

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