205 P.3d 1185 (Idaho 2009), 33652, State v. Grist

Docket Nº:33652.
Citation:205 P.3d 1185, 147 Idaho 49
Opinion Judge:HORTON, Justice.
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Harold E. GRIST, Jr., Defendant-Appellant.
Attorney:Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Justin Curtis argued., Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Daniel Bower argued.
Judge Panel:HORTON, Justice. Chief Justice EISMANN, Justices BURDICK and J. JONES concur. W. JONES, J. specially concurring:
Case Date:January 29, 2009
Court:Supreme Court of Idaho

Page 1185

205 P.3d 1185 (Idaho 2009)

147 Idaho 49

STATE of Idaho, Plaintiff-Respondent,


Harold E. GRIST, Jr., Defendant-Appellant.

No. 33652.

Supreme Court of Idaho.

January 29, 2009

Rehearing Denied April 20, 2009.

Page 1186

[147 Idaho 50] Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Justin Curtis argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Daniel Bower argued.

HORTON, Justice.

This appeal arises from Harold Grist's conviction for seven counts of lewd conduct with a minor under the age of sixteen, two counts of sexual battery of a minor, and one count of sexual abuse of a child under the age of sixteen. Grist argues that the district court improperly admitted evidence relating to prior uncharged sexual misconduct. We vacate and remand for further proceedings and a new trial.


A jury convicted Grist of sexually abusing his live-in girlfriend's daughter, J.M.O., over a period of eight years. The abuse started shortly after Grist and J.M.O.'s mother moved in together when J.M.O. was ten years old. Grist would have J.M.O. sit on his lap while he rubbed his pelvis against her. The abuse progressed as J.M.O. grew older. Eventually, Grist started to touch J.M.O.'s breasts, buttocks, and vagina. Grist would

Page 1187

[147 Idaho 51] also force J.M.O. to undress for him. The abuse stopped when J.M.O. moved out of the house after she graduated from high school.

Prior to trial, the State filed a motion pursuant to I.R.E. 404(b) to admit evidence of prior uncharged acts of sexual misconduct as evidence of a common scheme or plan. The evidence indicated that Grist previously sexually abused his ex-wife's daughter, A.W. The district court permitted A.W. to testify, finding the evidence to be relevant to Grist's " alleged conduct." A.W. testified that she lived with Grist from ages eight until thirteen and that Grist would ask her to sit on his lap or lay and cuddle with him. During this time, Grist would touch A.W.'s breasts and buttocks. The jury convicted Grist of all ten charged counts relating to his conduct with J.M.O. Grist timely appealed.


We review a trial court's decision to admit evidence for abuse of discretion. State v. Field, 144 Idaho 559, 564, 165 P.3d 273, 278 (2007) (citing State v. Robinett, 141 Idaho 110, 112, 106 P.3d 436, 438 (2005)). In this review, we examine whether: (1) the trial court correctly perceived the issue as discretionary; (2) the trial court acted within the outer bounds of its discretion and with applicable legal standards; and (3) the trial court reached its decision through an exercise of reason. Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991) (citing State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989)).


Grist asks this Court to overturn State v. Moore, 120 Idaho 743, 819 P.2d 1143 (1991), and State v. Tolman, 121 Idaho 899, 828 P.2d 1304 (1992), which permit a trial court to admit evidence of uncharged sexual misconduct in child sex crime cases, pursuant to Idaho Rule of Evidence 404(b). Grist argues that Idaho courts have treated the admission of evidence pursuant to I.R.E. 404(b) in child sex crime prosecutions differently than other cases under Rule 404(b). Grist argues that the admission of evidence of uncharged sexual misconduct by a defendant has evolved into a blanket exception that turns on whether the case involves allegations of sexual misconduct with a child. Grist asks this Court to hold that the admissibility of evidence pursuant to I.R.E. 404(b) in child sex crime cases is subject to the same analysis under I.R.E. 404(b) as other cases.

We decline to overrule Moore and Tolman in their entirety. However, as these decisions have been interpreted as creating an exception in child sex cases to the prohibition of character evidence, we find it necessary to revisit a theoretical underpinning for the introduction of uncharged misconduct in cases involving the sexual abuse and exploitation of children. We further clarify that the admission of I.R.E. 404(b) evidence in a child sex case is subject to the same analysis as the admission of such evidence in any other case. Any decision from this Court or the Court of Appeals that suggests that evidence offered in a case involving an allegation of sexual misconduct with a child should be treated differently than any other type of case is no longer controlling authority in Idaho's courts.

Grist is not the first person to point out that Idaho courts appear to distinguish child sex crime cases from other cases for purposes of I.R.E. 404(b). Professor Lewis notes the following in his treatise on trial practice in Idaho:

[I]n sex crime prosecutions, particularly those involving minors, the courts have used a variety of rationales to justify the admission of evidence of a defendant's uncharged deviant sexual misconduct, including admission on the issue of credibility, to corroborate the victim's testimony, to show plan or intent, and on the issue of identity. Indeed, the evidence has been held to have been properly admitted so often that it seems to constitute a special exception to the character evidence prohibition.

D. CRAIG LEWIS, IDAHO TRIAL HANDBOOK 2D ED., § 13:1 (2005) (emphasis added). Although this Court has not expressly stated that there is a distinction between child sex crime cases and other cases for purposes of I.R.E. 404(b), 1 the Court of Appeals has

Page 1188

[147 Idaho 52] found that our decisions in Moore and Tolman create such a distinction. In State v. Wood, 126 Idaho 241, 880 P.2d 771 (Ct.App.1994), the Court of Appeals stated " we understand our Supreme Court's rulings in Moore and Tolman to be limited in their application to sexual abuse cases where other similar incidents of sexual misconduct by the defendant with the same or similar victims tends to corroborate a child victim's version of the charged incident." Id . at 247, 880 P.2d at 777.

A. I.R.E. 404(b) admissibility standard

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show action in conformity therewith. I.R.E. 404(b); Field, 144 Idaho at 569, 165 P.3d at 283. This rule has its source in the common law. The common law rule was that " the doing of a criminal act, not part of the issue, is not admissible as evidence of the doing of the criminal act charged." See WIGMORE, CODE OF EVIDENCE, 3D ED., p. 81; see also, Old Chief v. U.S. , 519 U.S. 172, 181-82, 117 S.Ct. 644, 650-51, 136 L.Ed.2d 574, 588-89 (1997) (noting that Federal Rule of Evidence 404(b) reflects the common law).2

The policy...

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