207 P.3d 186 (Idaho App. 2009), 33721, State v. Parmer

Docket Nº:33721.
Citation:207 P.3d 186, 147 Idaho 210
Opinion Judge:PERRY, Judge.
Party Name:STATE of Idaho, Plaintiff-Respondent, v. James Zane PARMER, Defendant-Appellant.
Attorney:Jones & Swartz, PLLC, Boise, for appellant. Darwin Overson argued. Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
Judge Panel:Judge GRATTON, concurs. Judge GUTIERREZ, dissents.
Case Date:March 11, 2009
Court:Court of Appeals of Idaho
 
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Page 186

207 P.3d 186 (Idaho App. 2009)

147 Idaho 210

STATE of Idaho, Plaintiff-Respondent,

v.

James Zane PARMER, Defendant-Appellant.

No. 33721.

Court of Appeals of Idaho.

March 11, 2009

Review Denied May 5, 2009.

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[147 Idaho 213] Jones & Swartz, PLLC, Boise, for appellant. Darwin Overson argued.

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

PERRY, Judge.

James Zane Parmer appeals from his judgment of conviction for lewd conduct with a minor child under sixteen. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

Parmer provided massage services to K.R., a fourteen-year-old female, to treat her for migraine headaches and leg pain. K.R. reported that, at one session, Parmer was using a vibrating device to relieve tension in the muscles of her inner thigh when he placed the device in a position to cause her sexual arousal. Additionally, she reported that Parmer had also engaged in manual-genital contact. Parmer was arrested and charged with lewd conduct with a minor child under sixteen. I.C. § 18-1508.

The state filed a notice of intent, pursuant to I.R.E. 404(b), to use evidence in the form of testimony from eight witnesses regarding similar inappropriate sexual touching during massages provided by Parmer. The state then filed a motion in limine for the district court to rule on the admissibility of the witnesses' testimony under I.R.E. 403 and 404(b). After a hearing, the district court held that the testimony of seven of the eight witnesses would be admissible for the purposes of showing a common scheme or plan, intent, or absence of mistake or accident and that any prejudicial effect of such testimony could be cured by a limiting jury instruction. Six of the witnesses testified at Parmer's trial. Counsel for Parmer also attempted to elicit testimony from a police officer regarding statements that Parmer made during an interrogation, and the district court sustained the state's hearsay objection. The trial resulted in a hung jury.

In preparation for Parmer's retrial, the state then filed another notice of intent to use Rule 404(b) evidence in the form of testimony from two additional witnesses regarding inappropriate sexual contact by Parmer with them in the course of a massage. A second motion in limine was filed and after a hearing, the district court ruled that the testimony would be admissible on the same grounds as the six witnesses who testified at the first trial. Additionally, the district court held that counsel for Parmer could not make any reference to nor publish the recording of statements made by Parmer during a police interrogation because the statements were hearsay. The district court had previously sustained the state's hearsay objection to these statements in the first trial.

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[147 Idaho 214] At the retrial, testimony was presented from the eight witnesses. The jury found Parmer guilty, and the district court sentenced him to a unified term of twenty years, with a minimum period of confinement of seven years. Parmer appeals, challenging the district court's orders granting the state's motions in limine as to the Rule 404(b) witnesses and prohibiting Parmer's counsel from presenting any evidence of Parmer's statements during the police interrogation.

II.

ANALYSIS

A. Rule 404(b) Evidence

Parmer raises several issues concerning the admission of testimony regarding his prior bad acts. First, Parmer alleges that the district court abused its discretion by determining that the Rule 404(b) witnesses could testify based only on the state's offer of proof to the court concerning the subject matter of the proposed witnesses' testimony. Second, Parmer alleges that the Rule 404(b) evidence was irrelevant. Third, he alleges that the prejudicial effect of the testimony of eight prior bad acts witnesses substantially outweighed any probative value of the evidence. Fourth, he alleges that the district court abused its discretion by refusing trial counsel's request for additional time to prepare for the two Rule 404(b) witnesses added prior to the retrial. Lastly, he alleges that the district court abused its discretion by allowing one of the two additional Rule 404(b) witnesses to testify at the retrial after that witness had attended portions of the first trial.

Evidence of other crimes, wrongs, or acts is not admissible to prove a defendant's criminal propensity. I.R.E. 404(b); State v. Needs, 99 Idaho 883, 892, 591 P.2d 130, 139 (1979); State v. Winkler, 112 Idaho 917, 919, 736 P.2d 1371, 1373 (Ct.App.1987). However, such evidence may be admissible for a purpose other than that prohibited by I.R.E. 404(b). State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct.App.2002). In determining the admissibility of evidence of prior bad acts, the Supreme Court has utilized a two-tiered analysis. The first tier involves a two-part inquiry: (1) whether there is sufficient evidence to establish the prior bad acts as fact; and (2) whether the prior bad acts are relevant to a material disputed issue concerning the crime charged, other than propensity. State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185, 1188 (2009). We will treat the trial court's factual determination that a prior bad act has been established by sufficient evidence as we do all factual findings by a trial court. We defer to a trial court's factual findings if supported by substantial and competent evidence in the record. State v. Porter, 130 Idaho 772, 789, 948 P.2d 127, 144 (1997). Whether evidence is relevant is an issue of law. State v. Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 (Ct.App.1993). Therefore, when considering admission of evidence of prior bad acts, we exercise free review of the trial court's relevancy determination. Id. The second tier in the analysis is the determination of whether the probative value of the evidence is substantially outweighed by unfair prejudice. Grist, 147 Idaho at 52, 205 P.3d at 1188. When reviewing this tier we use an abuse of discretion standard. Id.

When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

1. State's offer of proof

Parmer alleges that the district court abused its discretion by determining that the Rule 404(b) witnesses could testify based only on the state's offer of proof to the court concerning the content of the proposed witnesses' testimony. He argues that there must be a factual predicate established on the record before a ruling on admissibility is made. Furthermore, he argues that, even if the district court correctly relied on the

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[147 Idaho 215] state's offer of proof, the district court erred by failing to strike portions of witness testimony which varied from the alleged testimony purported in the offer of proof. The state responds that this issue was not preserved for appeal by timely objection, it is unsupported by legal authority, or that it is an incorrect statement of the law because the very purpose of the offer of proof is to enable the district court to rule on the admissibility of proffered evidence.

Recently, the Supreme Court in Grist, reviewed a district court's admission of Rule 404(b) evidence in a trial for lewd conduct with a minor under sixteen. In that case, the district court found:

" I think the evidence submitted to me by way of the offer of proof from the state is relevant to a material disputed issue in this matter, that is, defendant's alleged conduct, and though certainly prejudicial to the defense, I believe that the probative value would substantially outweigh the danger of unfair prejudice."

Grist, 147 Idaho at 53, 205 P.3d at 1189. The Supreme Court held that the district court did not make a proper determination as to whether there was sufficient evidence to establish the prior bad acts as fact but did not specifically identify a proper method for establishing prior bad acts as fact. The quoted language from the district court in that case referred to a reliance on an offer of proof concerning the proffered testimony. However, the Supreme Court did not condemn the reliance on an offer of proof in the initial presentation of the testimony to be elicited at trial for purposes of a Rule 404(b) determination. In that case, the district court failed to make such a finding at all and, instead, ruled only on the relevance and the balancing of the prejudicial effect and probative value.

Reliance on an oral or written offer of proof in determining the admissibility of Rule 404(b) evidence is one way that a district court can make the requisite initial finding that a prior bad act is established as fact. A trial court may also rely on affidavits, stipulations by the parties, live testimony, or may hold more extensive evidentiary hearings for each witness in advance of trial. In any event, the Supreme Court has held that these considerations of admissibility must be made on a case-by-case basis by the trial court. Id. at 52, 205 P.3d at 1188. The Supreme Court has not articulated what standard of proof is required for the trial court to factually establish the prior bad acts. However, the Court did hold that...

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