Opinion No. 101
from the District Court of the Seventh Judicial District of
the State of Idaho, Bonneville County. Hon. Gregory W.
Moeller, District Judge.
judgment of the district court is affirmed.
D. Fredericksen, State Appellate Public Defender, Boise, for
appellant. Maya P. Waldron argued.
Lawrence G. Wasden, Attorney General, Boise, for respondent.
Kenneth K. Jorgensen argued.
Earl Folk appeals from his judgment of conviction for one
felony count of sexual abuse of a child under sixteen years
old entered after a jury trial in Bonneville County. On
appeal, Folk contends that the district court made numerous
evidentiary errors. Folk also argues that the district court
erred by denying his motion for a judgment of acquittal and
the prosecutor committed misconduct amounting to fundamental
error in his closing argument. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
described the circumstances giving rise to this prosecution
in State v. Folk, 151 Idaho 327, 256 P.3d 735 (2011)
On December 25, 2007, at about 5:30 p.m., the mother of three
minor children (Mother) arrived home after running an errand
and went into the kitchen to help her grandmother finish
preparing Christmas dinner. As she was walking to the
kitchen, Jonathan Folk (Defendant) was in the living room. He
had come over to pick up a house guest. After about ten to
fifteen minutes, Mother walked into the living room and asked
her husband where their five-year-old son (Child) was.
He said that he thought Child was in his bedroom. Mother
walked to Child's room, and as she was nearing the open
door to the room she heard Child say, "That's
gross." As she walked into the room, she saw Child lying
on his back on the bed and Defendant kneeling down in front
of Child with Child's legs around Defendant and his hands
on Child's hips. The bed was a small child's bed,
about ten inches off the floor. Mother asked what they were
doing, and both Child and Defendant said they were just
playing. Both Defendant and Child were fully clothed, and it
did not appear that either of them had just pulled or zipped
their pants up. Mother did not see any signs of any type of
sexual act by Defendant. Defendant stood up and walked out of
Child's room, and then returned and sat on the floor
while Child picked up his toys pursuant to Mother's
instructions. Defendant and the guest left about one and
one-half hours later. At about 4:00 a.m. that night, Child
awakened Mother and stated that he had just had a nightmare.
Mother asked what it was about, and Child responded that it
was about what that guy did to Child last night. Mother asked
what guy, but Child would not answer. Later that morning,
Mother telephoned the police and then asked Child what had
happened last night. Child answered that Defendant had placed
his mouth on Child's penis.
Id. at 331, 256 P.3d at 739.
State charged Folk with lewd conduct by oral-genital contact
with Child. A jury found Folk guilty of lewd conduct and the
district court sentenced him to life in prison without
parole. Folk appealed. In Folk I, we vacated
Folk's judgment, holding: (1) Folk's right to
confrontation was violated; (2) Folk's right to
self-representation was infringed; and (3) there were errors
in the jury instructions which would have permitted the jury
to convict Folk for uncharged conduct or conduct that did not
constitute lewd conduct. Id. at 342, 256 P.3d at
750. Following a second jury trial, Folk once again appealed
from a fixed life sentence. State v. Folk, 157 Idaho
869, 873, 341 P.3d 586, 590 (Ct. App. 2014) (Folk
II). The Court of Appeals vacated Folk's judgment
because evidence of Folk's prior convictions was
improperly admitted. Id. at 880, 341 P.3d at 597.
remand, the State made a curious charging decision. It
amended the charge from lewd conduct to sexual abuse of a
child under the age of sixteen, alleging that Folk committed
the crime "by tickling the stomach and/or feet of
[Child] and/or touching the hips of [Child] with his
hands." The State also added a persistent violator
allegation. Folk filed a number of pretrial motions,
including a motion to exclude the testimony of Blaine Blair
that Folk had told him that Folk desired to sexually abuse
children. The district court issued two memorandum decisions
on Folk's motions and ultimately permitted Blair to
testify regarding Folk's statement by way of a narrow set
of leading questions:
Q [by the prosecutor]: All right. I'm going to ask you
some questions, and I just want you to answer yes or no to
these questions. Okay? Can you do that?
A: Yes, I can.
Q: Did you and [Folk] ever discuss things? Yes or no?
Q: Okay. Did you and [Folk] ever share secrets with one
another? Yes or no?
Q: Now again this is yes or no. Did the defendant, [Folk],
ever say anything to you indicating that he desired to
sexually abuse children? Yes or no?
Q: Okay. How many times did he express that to you?
A: Just once.
the State amended the charge to sexual abuse of a child, Folk
moved to exclude evidence of the alleged oral-genital
contact. The district court denied Folk's request.
several occasions during the trial, Folk unsuccessfully
attempted to admit evidence of Child's testimony from the
earlier trials. On some occasions, he did so to refresh
Child's memory, and on other occasions, he sought to
introduce the prior testimony to impeach Child with prior
inconsistent statements. The district court's evidentiary
rulings on these efforts are one of the subjects of this
was found guilty of sexual abuse of a child under sixteen, a
violation of Idaho Code section 18-1506(1)(b). The district
court dismissed the persistent violator enhancement and
imposed a fixed sentence of 25 years. Folk timely appealed.
STANDARD OF REVIEW
trial court has broad discretion in the admission and
exclusion of evidence and its decision to admit evidence will
be reversed only when there has been a clear abuse of that
discretion." State v. Lopez-Orozco, 159 Idaho
375, 377, 360 P.3d 1056, 1058 (2015) (quoting State v.
Robinett, 141 Idaho 110, 112, 106 P.3d 436, 438 (2005)).
A three point inquiry is used to determine whether a trial
court has abused its discretion: (1) whether the court
correctly perceived the issue as one of discretion; (2)
whether the court acted within the outer boundaries of its
discretion and consistently with the legal standards
applicable to the specific choices available to it; and (3)
whether the trial court reached its decision by an exercise
State v. Joy, 155 Idaho 1, 6, 304 P.3d 276, 281
(2013) (quoting State v. Pepcorn, 152 Idaho 678,
686, 273 P.3d 1271, 1279 (2012)). "[W]hether evidence is
relevant is a question of law this Court reviews de
A. The district court did not abuse its discretion by
admitting Blair's testimony.
argues that Blair's testimony was not relevant to any
issue of material fact in the case and, even if it were
relevant, the probative value of the evidence was
substantially outweighed by the risk of unfair prejudice.
Blair's testimony was relevant to the issue of
second memorandum decision, the district court concluded that
Blair's testimony "appears to be highly relevant to
the issues of motive, intent, or absence of mistake or
accident" and "is probative of Folk's state of
mind and gives an explanation as to why he would place
himself alone with a child or touch a child." Folk
argues that a "desire to sexually abuse children
generally doesn't show that otherwise-innocent tickling
was done to gratify Mr. Folk's sexual desires."
is relevant if it has "any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence." I.R.E. 401. The
question before the jury was whether Folk's conduct in
tickling Child and/or touching Child on the hips was done
with the intent to gratify Folk's sexual desires. We
agree with the district court's conclusion that
Blair's testimony that Folk indicated that he desired to
sexually abuse children had a tendency to make it more likely
Folk's admitted contact with Child was not innocent but
was rather done for the purpose of gratifying Folk's
sexual desires. Therefore, we find no error in the district
court's conclusion that Blair's testimony was
The district court did not abuse its discretion when it
determined that the probative value of Blair's testimony
was not outweighed by the danger of unfair
argues that Blair's testimony has extremely low probative
value due to Blair's "disastrous" memory and
the district court increased the level of unfair prejudice by
allowing the State to use leading questions to elicit
Blair's testimony. "[W]e review the district
court's determination of whether the probative value of
the evidence outweighs its prejudicial effect for an abuse of
discretion." State v. Kralovec, 161 Idaho 569,
574, 388 P.3d 583, 588 (2017) (quoting State v.
Ehrlick, 158 Idaho 900, 907, 354 P.3d 462, 469 (2015)).
first memorandum decision, the district court concluded that
"[i]f offered for rebuttal purposes, the probative value
of [Blair's testimony] is not substantially outweighed by
the danger of unfair prejudice." The district court
reasoned that Blair's testimony was "highly
probative in a case where the intent of the contact is a
significant part of the charged crime, especially given
Folk's anticipated defense that he was merely engaged in
harmless horseplay with the victim." However, the
district court recognized that there was a "substantial
risk that the jury would treat such testimony as propensity
evidence." The district court held that evidence of
Folk's statements to Blair would be conditionally
admissible if offered to rebut assertions that the touching
was the result of an accident, mistake, or done of some other
purpose." In its second memorandum decision, the
district court again concluded that Blair's testimony was
"highly relevant to the issues of motive, intent, or
absence of mistake or accident." At trial, Folk objected
to the State's proposed question based on Idaho Rule of
Idaho Rule of Evidence 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that the
person acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident . . . .
I.R.E. 404(b). The district court's analysis of
Blair's testimony shows that the district court
recognized the issue as one of discretion, that the district
court acted within the bounds of its discretion, and that the
district court reached its decision through an exercise of
reason. Specifically, the district court recognized and
applied this Court's two-tiered analysis in State
Admissibility of evidence of other crimes, wrongs, or acts
when offered for a permitted purpose is subject to a
two-tiered analysis. First, the trial court must determine
whether there is sufficient evidence to establish the other
crime or wrong as fact. The trial court must also determine
whether the fact of another crime or wrong, if established,
would be relevant. Evidence of uncharged misconduct must be
relevant to a material and disputed issue concerning the
crime charged, other than propensity. Such evidence is only
relevant if the jury can reasonably conclude that the act
occurred and that the defendant was the actor.
Second, the trial court must engage in a balancing under
I.R.E. 403 and determine whether the danger of unfair
prejudice substantially outweighs the probative value of the
evidence. This balancing is committed to the discretion of
the trial judge. The trial court must determine each of these
considerations of admissibility on a case-by-case basis.
State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185,
1188 (2009) (internal citations omitted). Once the district
court reached the Rule 403 analysis, it determined that the
danger of unfair prejudice in Blair's testimony would
arise from reference to Folk's past abuse of children. By
requiring the State to question Blair only about Folk's
statement of intent to sexually abuse children in the future,
the district court eliminated the danger that the jury might
consider past conduct as evidence of Folk's propensity to
abuse children. We find that Blair's testimony was
prejudicial to Folk, but not unfairly so.
403 does not require the exclusion of prejudicial evidence.
Most evidence offered to prove a defendant's guilt is
inherently prejudicial. The rule only applies to evidence
that is unfairly prejudicial because it tends to suggest that
the jury should base its decision on an improper basis."
State v. Rawlings, 159 Idaho 498, 506, 363 P.3d 339,
347 (2015) (internal citations omitted). The district court
properly acted to prevent the introduction of testimony from
Blair that might have led the jury to base its decision on an
improper basis. We hold that the district court did not abuse
its discretion when it admitted Blair's testimony.
The district court did not abuse its discretion when it
admitted testimony concerning the alleged oral-genital
contact as evidence of Folk's intent.
second memorandum decision, the district court held that
testimony concerning the alleged oral-genital contact with
Child was admissible as evidence of Folk's intent to
gratify his sexual desires under Idaho Rule of Evidence
404(b) and that it was not unfairly prejudicial under Idaho
Rule of Evidence 403. The district court reasoned that a
finding of criminal intent may be based upon circumstantial
evidence and that testimony concerning the alleged
oral-genital contact was relevant to the determination
whether Folk touched and tickled Child with the intent to
gratify his sexual desires. In its Rule 403 analysis, the
district court stated:
Here, the evidence is certainly prejudicial, but the Court
does not believe it is unfairly prejudic[ial]. Because of the
contemporary nature of the acts involved, it is directly
related to the charged conduct. This would be different if
the alleged oral to genital contact occurred at some earlier
or later date. The State has elected to charge Folk with
sexual abuse, not lewd conduct. The Court does not conclude
that this strategy lessens the relevancy of the alleged
victim's testimony about the entirety of the incident.
district court concluded that allowing the jury to know
exactly what happened at the time of the alleged incident
would not result in unfair prejudice to Folk.
argues that the evidence of the alleged oral-genital contact
was not relevant to any issue in the case including
Folk's intent. Folk contends that evidence of the alleged
oral-genital contact was not necessary to provide the jury
with the complete story and cites to this Court's opinion
in State v. Kralovec where this Court
"decline[d] to perpetuate the use of the res
gestae doctrine in Idaho, " concluding that
"evidence previously considered admissible as res
gestae is only admissible if it meets the criteria
established by the Idaho Rules of Evidence."
Kralovec, 161 Idaho at 573-74, 388 P.3d at 587-88.
Finally, Folk argues that the evidence was so confusing,
misleading, and unfairly prejudicial that it suggested a
decision on an improper basis.
that the district court did not abuse its discretion by
admitting the evidence of the alleged oral-genital contact.
First, as discussed above, evidence is relevant if it has
"any tendency to make the existence of any fact that is
of consequence to the determination of the action more
probable or less probable than it would be without the
evidence." I.R.E. 401. "Specific intent may, and
ordinarily must, be proved by circumstantial evidence. . . .
One's intent may be proved by his acts and conduct, and
such is the usual and customary mode of proving intent."
State v. Oldham, 92 Idaho 124, 132, 438 P.2d 275,
283 (1968) (internal citations and quotations omitted);
State v. Cheatham, 134 Idaho 565, 572, 6 P.3d 815,
assertion that the district court improperly used the
doctrine of res gestae to admit the evidence is
incorrect. We first observe that the district court did not
have the benefit of our decision in Kralovec at the
time it made its decision, as we released Kralovec
nearly a year and a half after the district court's
decision. The district court's discussion of res
gestae came in the context of its discussion of the
Court of Appeals' decision in State v.
Blackstead, 126 Idaho 14, 878 P.2d 188 (Ct. App. 1994).
Nevertheless, the district court's analysis concluded:
"Regardless of what we call such evidence, the Court
concludes that it is admissible under Rules 403 and
404(b)." Thus, the district court's decision was
consistent with our holding in Kralovec, as the
district court made its decision based upon the
"criteria established by the Idaho Rules of
Evidence." Kralovec, 161 Idaho at 574, 388 P.3d
we are unable to accept Folk's argument that the evidence
was so confusing, misleading, and unfairly prejudicial that
it suggested that the jury should reach its decision on an
improper basis. Folk does not attempt to show that the
district court abused its discretion by admitting the
evidence under an erroneous Rule 403 analysis. The district
court instructed the jury that Folk could only be convicted
for the act of tickling Child or touching his hips. "We
must presume that the jury followed the jury instructions in
arriving at their verdict." Weinstein v.
Prudential Prop. & Cas. Ins. Co., 149 Idaho 299,
335, 233 P.3d 1221, 1257 (2010). We hold that Folk has not
shown that the district court abused its discretion by
admitting the evidence of the alleged oral-genital contact.
The district court did not abuse its discretion when it
excluded evidence of Child's prior testimony.
argues that the district court erroneously excluded
Child's prior sworn testimony. Folk contends that the
prior testimony was admissible for substantive purposes under
Idaho Rule of Evidence 801(d)(1)(A) and for impeachment
purposes under Idaho Rule of Evidence 613(b). We address
these arguments in turn.
Folk's argument based on Rule 801(d)(1)(A) was not