Opinion No. 37
from the District Court of the Sixth Judicial District, State
of Idaho, Bannock County. Hon. David C. Nye, District Judge.
granting consolidation, reversed; judgments of
conviction, vacated and cases remanded.
D. Fredericksen, State Appellate Public Defender; Justin M.
Curtis, Deputy Appellate Public Defender, Boise, for
Lawrence G. Wasden, Attorney General; Jessica M. Lorello,
Deputy Attorney General, Boise, for respondent.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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