2017
Opinion No. 46
Appeal
from the District Court of the Seventh Judicial District,
State of Idaho, Madison County. Hon. Alan C. Stephens,
District Judge.
Order
denying motion in limine and judgment of conviction,
affirmed.
Eric
D. Fredericksen, State Appellate Public Defender; Ben P.
McGreevy, Deputy Appellate Public Defender, Boise, for
appellant.
Hon.
Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen,
Deputy Attorney General, Boise, for respondent.
HUSKEY, Judge.
Brandon
Briggs appeals from his judgment of conviction entered upon
the jury verdict finding him guilty of five counts of lewd
conduct, four counts of sexual abuse, and one count of
enticing. Before trial, the district court denied
Briggs's request to cross-examine witnesses regarding
sexual activity under Idaho Rule of Evidence 412(b)(2)(D). On
appeal, Briggs argues unobjected-to error occurred because
the district court violated his right to confront witnesses
under I.R.E. 412(b)(1) and the Sixth Amendment of the United
States Constitution. Because this case did not involve an
unobjected-to error, the standard for unobjected-to error
does not apply. Even if this standard does apply, there was
no constitutional violation in this case, and thus, Briggs
cannot establish fundamental error. Furthermore, Briggs did
not present a Sixth Amendment or I.R.E. 412(b)(1) argument to
the district court, and thus, we cannot address the arguments
for the first time on appeal. We therefore affirm the
district court's order denying Briggs's motion in
limine and judgment of conviction.
I.
FACTUAL
AND PROCEDURAL BACKGROUND
In
Docket No. 44140 (2014 case), the State charged Briggs with
six crimes: (1) lewd conduct with a child under the age of
sixteen years, felony, Idaho Code §§ 18-1508 and
18-112A; (2) sexual abuse of a child under the age of sixteen
years, felony, I.C. §§ 18-1506 and 18-112A; (3)
lewd conduct with a child under the age of sixteen years,
felony, I.C. §§ 18-1508 and 18-112A; (4) lewd
conduct with a child under the age of sixteen years, felony,
I.C. §§ 18-1508, 18-112A, and 19-304; (5) lewd
conduct with a child under the age of sixteen years, felony,
I.C. §§ 18-1508, 18-112A, and 19-304; and (6) lewd
conduct with a child under the age of sixteen years, felony,
I.C. §§ 18-1508, 18-112A, and 19-304.
In
Docket No. 44141 (2015 case), the State charged Briggs with
four crimes: (1) sexual abuse of a child under the age of
sixteen years, felony, I.C. §§ 18-1506(1)(a) and
18-112A; (2) sexual abuse of a child under the age of sixteen
years, felony, I.C. §§ 18-1506(1)(a) and 18-112A;
(3) sexual abuse of a child under the age of sixteen years,
felony, I.C. §§ 18-1506(1)(b)[1]and 18-112A; and
(4) enticing a child through the use of the Internet or other
communication device, felony, I.C. § 18-1509A. The
district court consolidated the cases.
Before
trial, Briggs filed a motion in limine, pursuant to I.R.E.
412. In the motion, Briggs moved the district court to admit
the sexual history of the victims in the case to show the
victims were sexually involved with individuals other than
Briggs. Briggs alleged the victims accused Briggs in order to
protect the actual perpetrators of the crimes. Briggs argued
the testimony was relevant to provide a motive for the
victims to lie about any sexual contact with Briggs. At the
hearing on the motion, Briggs was asked which section of
I.R.E. 412 applied, and Briggs responded: "I think it
goes under Rule 412(b)(2)(D), 'sexual behavior with
parties other than the accused which occurred at the time of
the event giving rise to the sex crime charged.'"
The district court issued the following ruling on the matter:
I think evidence that these [victims] knew each other and
would, therefore, have an opportunity to maybe conspire or
get their stories together would be relevant evidence. But I
don't think the allegations about sexual contact between
these [victims] and others--I don't see how that would
fit under 412 in this particular case, because consent is not
an issue in this case because these are minors.
The
district court issued a written order on the motion in
limine, ruling that Briggs could not present evidence of the
victims' sexual conduct with other individuals. At no
point did Briggs articulate that he had a constitutional
right to present the evidence in question, cross-examine the
victims on the ...