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State v. Folk

Supreme Court of Idaho

September 20, 2017

STATE OF IDAHO, Plaintiff-Respondent,
v.
JONATHAN EARL FOLK, Defendant-Appellant

         2017 Opinion No. 101

         Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Bonneville County. Hon. Gregory W. Moeller, District Judge.

         The judgment of the district court is affirmed.

          Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Maya P. Waldron argued.

          Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

          HORTON, Justice.

         Jonathan 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         We described the circumstances giving rise to this prosecution in State v. Folk, 151 Idaho 327, 256 P.3d 735 (2011) (Folk I):

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.

         The 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.

         Following 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?
A: Yes.
Q: Okay. Did you and [Folk] ever share secrets with one another? Yes or no?
A: Yes.
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?
A: Yes.
Q: Okay. How many times did he express that to you?
A: Just once.

         After 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.

         On 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 appeal.

         Folk 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.

         II. STANDARD OF REVIEW

         "The 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 of reason.

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 novo." Id.

         III. ANALYSIS

          A. The district court did not abuse its discretion by admitting Blair's testimony.

         Folk 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.

         1. Blair's testimony was relevant to the issue of intent.

         In its 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."

         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. 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 relevant.

         2. 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 prejudice.

         Folk 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)).

         In its 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 Evidence 404(b).

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 v. Grist:

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.

         "Rule 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.

         B. The district court did not abuse its discretion when it admitted testimony concerning the alleged oral-genital contact as evidence of Folk's intent.

         In its 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.

         The 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.

          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.

         We hold 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, 822 (2000).

         Folk's 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 at 588.

         Finally, 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.

         C. The district court did not abuse its discretion when it excluded evidence of Child's prior testimony.

         Folk 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.

         1. Folk's argument based on Rule 801(d)(1)(A) was not ...


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