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State v. Comer

Court of Appeals of Idaho

June 30, 2017

STATE OF IDAHO, Plaintiff-Respondent,
v.
EDWARD L. COMER, Defendant-Appellant.

         2017 Opinion No. 37

         Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. David C. Nye, District Judge.

         Order granting consolidation, reversed; judgments of conviction, vacated and cases remanded.

          Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.

          HUSKEY, Judge.

         Edward L. Comer appeals from his judgments of conviction entered upon jury verdicts finding him guilty of three counts of sexual abuse of a child under the age of sixteen involving two different victims. Comer argues the district court erred by consolidating the charged offenses into a single trial because the offenses against two different victims did not constitute a common scheme or plan. The State argues consolidation of the sexual abuse charges was appropriate given the common elements, circumstances, and ages of the victims. Even if there was error, the State contends any such error was harmless because the district court previously ruled that evidence of the victims' abuse was admissible in separate trials under Idaho Rule of Evidence 404(b). We reverse the district court's order granting the State's motion to consolidate and vacate Comer's judgments of conviction.

         I.

         FACTUAL AND PROCEDURAL BACKGROUND

         In October 2013, the State charged Comer with two counts of sexual abuse of a child under the age of sixteen years, Idaho Code § 18-1506(1)(b). Count I alleged that Comer committed sexual abuse by touching and/or poking the breasts of an eleven-year-old female, K.F. Count II alleged that Comer committed sexual abuse by touching and/or poking the vagina of K.F. K.F. alleged that during a sleepover at S.S.'s house, S.S.'s uncle, Comer, approached K.F. from behind while she was working on a puzzle. K.F. stated Comer put his hands under her shirt and touched her breasts. Comer then ran his hands over K.F.'s sides and slid one hand under the front of her shorts, poking her vagina over the top of her underwear. Comer acknowledged that he may have accidentally touched K.F.'s breasts while teaching K.F. self-defense techniques, but Comer denied ever intentionally touching K.F.'s breasts or vagina.

         The State filed a notice of intent pursuant to I.R.E. 404(b) to introduce testimony of S.S., Comer's ten-year-old niece, who claimed that during the same time period Comer abused K.F., Comer also touched S.S.'s breasts, buttocks, and vagina. The State asserted S.S.'s testimony was necessary to corroborate K.F.'s testimony, prove the absence of mistake, and demonstrate a common scheme or plan. Comer argued S.S.'s testimony was improper bad acts testimony because the probative value of the evidence was substantially outweighed by its prejudicial nature. The district court granted the State's motion, finding S.S.'s testimony was relevant because the similarities between S.S.'s and K.F.'s allegations indicated Comer had a common scheme or plan. The district court alternatively reasoned that S.S.'s testimony was relevant to demonstrate absence of mistake. The district court held the probative value of the evidence outweighed its prejudicial effects because the testimony was relevant to whether the touching was incidental or intentional and also evidenced a common scheme or plan.

         In September 2014, the State charged Comer in a second case with two counts of sexual abuse of a child under the age of sixteen years, I.C. § 18-1506(1)(b). Count I alleged that Comer committed sexual abuse by touching the breasts of ten-year-old S.S. Count II alleged that Comer committed sexual abuse by touching the vagina of S.S. The State filed a notice of intent pursuant to I.R.E. 404(b) to introduce evidence of K.F.'s sexual abuse allegations in S.S.'s trial. The district court granted the motion for the same reason it granted the I.R.E. 404(b) motion in K.F.'s case. S.S.'s case proceeded to trial. The jury was unable to reach a verdict on the first count of sexual abuse and acquitted Comer of the second count.

         After the result in S.S.'s trial, the State moved to consolidate the remaining count in S.S.'s case and the two charges in K.F.'s case. At the hearing on the motion to consolidate, the State argued that for judicial efficiency the charges should be consolidated because all charges had the same defendant, the same witnesses, and a similar type of crime. Comer objected to consolidation, arguing:

But to actually try the cases themselves together, I don't agree with counsel that they're similar witness, similar facts. You know, there's some general similarities, but I think specifically they are different. The witnesses are different. And I think that given the outcome of the first trial, I think it's an effort to now try and simply complicate the matter in terms of defending as to both these alleged victims in the same trial. And I think it causes an insurmountable task for the defendant to ...

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