165 P.3d 273 (Idaho 2007), 33654, State v. Field

Docket Nº:33654.
Citation:165 P.3d 273, 144 Idaho 559
Opinion Judge:BURDICK, Justice.
Party Name:STATE of Idaho, Plaintiff-Respondent, v. William O. FIELD, Defendant-Appellant.
Attorney:Nevin, Benjamin & McKay, LLP, Boise, for appellant. Dennis Alan Benjamin argued. Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Jessica Marie Lorello, Deputy Attorney General, argued. Nevin, Benjamin & McKay, LLP, Boise, for appellant. Dennis Alan Benjamin argued., Hon. Lawren...
Judge Panel:Name BURDICK, Justice
Case Date:July 31, 2007
Court:Supreme Court of Idaho
 
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Page 273

165 P.3d 273 (Idaho 2007)

144 Idaho 559

STATE of Idaho, Plaintiff-Respondent,

v.

William O. FIELD, Defendant-Appellant.

No. 33654.

Supreme Court of Idaho, Boise

July 31, 2007

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Honorable Peter D. McDermott, District Judge.

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[144 Idaho 563] Nevin, Benjamin & McKay, LLP, Boise, for appellant. Dennis Alan Benjamin argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Jessica Marie Lorello, Deputy Attorney General, argued.

BURDICK, Justice.

Appellant William O. Field was convicted of lewd conduct and sexual battery. Field asks us to reverse and asserts several errors were committed below including improper joinder of the two offenses for trial, the introduction of inadmissible evidence, prosecutorial misconduct, and the giving of erroneous jury instructions. We reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

In September 2003, a seven year old girl, H.P., was staying at the house of a family friend, Appellant William O. Field, while her mother was working out of town. According to H.P., one night during her stay she went outside to get ice cream from the garage while Field was sitting on a chair on the porch. Field asked her to sit on his lap, and she complied. He began to rub her stomach underneath her clothing and then put his hand underneath her underwear and digitally penetrated her vagina. H.P. told Field she needed to go to bed and left the porch. The next day H.P. went to school and then spent another night at the Field's home. After school the next day, her father picked her up and took her to her mother's house. After H.P. returned home, she seemed upset and her eleven year old sister, S.P., went into H.P.'s room to ask her what was wrong. At first H.P. refused to answer, but eventually she told S.P. that while at Field's house he touched her in her "privatal [sic] area." S.P. then insisted that H.P. tell their mother (mother) what happened. SP then brought H.P. to the mother and told the mother that H.P. had something to tell her. After H.P. described what happened, the mother phoned the police. In September 2003 the State filed a complaint against Field for lewd conduct with a child under sixteen, I.C. § 18-1508.

After the complaint was filed, Field made a phone call to T.B. and offered to pay her for names of the mother's old boyfriends. T.B. went to the police and told them about Field's phone call and about an incident that occurred between Field and T.B. in 2001. T.B. agreed to make recorded phone calls to Field asking him about the incident.

According to T.B., in late October and early November of 2001, when she was seventeen years old, she and her eighteen year old friend Kayln Anderson were house-sitting and babysitting Field's stepdaughter, A.C. During one of the nights T.B. was there, Field returned home unexpectedly. On that

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[144 Idaho 564] evening, Field called the house phone and asked that A.C. go to the basement to speak with him. Subsequently, A.C. received a phone call and T.B. went downstairs to give A.C. the phone. When T.B. entered the basement, A.C. who had been lying next to Field in bed, "popped up real quick [and] grabbed the phone...." Field then asked T.B. to lie next to him and he offered to give her a back rub. As he was giving her a back rub he made comments "like [she] was beautiful . . . [and] he liked touching [her], " began kissing her, and then put his hand underneath her clothing and rubbed her whole buttocks. T.B. told Field she had homework to do and went upstairs. Field then called the house phone and asked T.B. if she needed anything to which she replied she did not. The next morning she noticed there was a ten dollar bill on her book bag. In October 2003 the State filed a complaint against Field for sexual battery of a minor child sixteen or seventeen years of age, I.C. § 18-1508A(1)(c).

Over Field's objection, the district court granted the State's motion to join the offenses for trial. A trial was held, in which the jury convicted Field of Lewd Conduct with a Child Under Sixteen, I.C. § 18-1508, and Sexual Battery of a Minor Child, I.C. § 18-1508A(1)(c). The district court denied Field's motion for a new trial. The district court sentenced Field to a fifteen year fixed period of confinement and an indeterminate twenty year period on the lewd conduct conviction and to a five year fixed period of confinement and an indeterminate ten year period on the sexual battery charge. The sentences were to run concurrently. The Idaho Court of Appeals reversed Field's lewd conduct conviction, but concluded that the errors were harmless as to Field's sexual battery conviction. We granted the parties' cross-petitions for review.

II. STANDARD OF REVIEW

"When considering a case on review from the Court of Appeals, this Court gives serious consideration to the views of the Court of Appeals; however, this Court reviews the trial court's decisions directly and acts as though it is hearing the matter on direct appeal from the decision of the trial court." State v. Robinett, 141 Idaho 110, 111-12, 106 P.3d 436, 437-38 (2005) (citations omitted).

The trial court's decision to admit evidence is reviewed on an abuse of discretion standard. Id. at 112, 106 P.3d at 438 (citation omitted).

III. ANALYSIS

Field argues that both convictions should be reversed due to the many errors committed below. The alleged errors include wrongful joinder of the two offenses for trial, the admission of H.P.'s out of court statements, the introduction of Anderson's "bad acts" testimony, and prosecutorial misconduct. Field contends that these actions constituted harmful or cumulative error and thus, mandate reversal of his convictions. Field also asserts that the reasonable doubt jury instruction was erroneous. Finally, Field argues that the sentences imposed upon him by the district court were unreasonable. We will address each issue in turn.

A. Joinder

The State moved to join the two offenses "on the grounds and for the reasons that both cases are connected together or constitute a common scheme or plan." The district court granted the motion after a hearing and after reviewing the parties' subsequent submission of briefs on the motion. Field argues joinder was improper because the facts surrounding the two offenses are insufficient to show a common scheme or plan.

Whether a court improperly joined offenses pursuant to I.C.R. 8 is a question of law, over which this Court exercises free review. SeeState v. Anderson, 138 Idaho 359, 361, 63 P.3d 485, 487 (Ct. App. 2003); see also United States v. Lane, 474 U.S. 438, 449 n. 12, 106 S.Ct. 725, 732 n. 12, 88 L.Ed.2d 814, 825-26 n. 12 (1986) (adopting a free review standard for joinder pursuant to Fed. R. Crim. Pro. 8(b)). In contrast, an abuse of discretion standard is applied when reviewing the denial of a motion to sever joinder pursuant to I.C.R. 14; however, that rule presumes joinder was proper in the first

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[144 Idaho 565] place.1Anderson, 138 Idaho at 361, 63 P.3d at 487; see also Lane, 474 U.S. at 449 n. 12, 106 S.Ct. at 732 n. 12, 88 L.Ed.2d at 825-26 n. 12. As we are reviewing the propriety of the initial joinder, we exercise free review.

The State argues joinder was appropriate because the two offenses were connected together and constituted parts of a common scheme or plan. The State first argues that the offenses are connected together because Field involved T.B. in his case concerning H.P. by contacting T.B. and soliciting her help. The State then argues "taking advantage of underage females who come into your home to baby sit or to be babysat" is a common scheme or plan.2

Joinder of offenses is permissible if those offenses "could have been joined in a single complaint, indictment or information." I.C.R. 13. Two or more offenses may be charged on the same complaint, indictment or information when the offenses charged "are based on the same act or transaction or on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan." I.C.R. 8(a). Whether joinder is proper is "determined by what is alleged, not what the proof eventually shows."3State v. Cochran, 97 Idaho 71, 73, 539 P.2d 999, 1001 (1975).

Cases discussing common plans have focused on whether the offenses were one continuing action or whether the offenses have sufficient common elements including the type of sexual abuse, the circumstances under which the abuse occurred, and the age of the victims. For example, in State v. Estes, 111 Idaho 423, 424, 725 P.2d 128, 129 (1986), the victim testified that Estes entered her hotel room and forcibly raped her four times. Estes argued that because each of those acts constituted separate rape, he should have been charged in four separate counts. Id. at 427, 725 P.2d at 132. The Court held that joinder of the offenses was proper because they were part of one continuing action--the individual sexual penetrations were not committed at different times, in different places, nor with different actors or circumstances. Id.

In State v. Schwartzmiller, 107 Idaho 89, 91, 685 P.2d 830, 832 (1984), Schwartzmiller was convicted of three counts of lewd and lascivious conduct which took place in late 1978 with two fourteen year old boys. Although the acts occurred at different times and with different people, the Court held the counts were properly joined because the facts demonstrated a common plan. Schwartzmiller frequented areas where young boys may be found, befriended boys with no...

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