State v. Boothe

• Decision Date: 30 March 1982
• Docket Number: No. 13522,13522
• Citation: 103 Idaho 187,646 P.2d 429
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Doyne Jackson BOOTHE, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 429

646 P.2d 429

103 Idaho 187

STATE of Idaho, Plaintiff-Respondent, v. Doyne Jackson BOOTHE, Defendant-Appellant.

No. 13522.

Court of Appeals of Idaho.

March 30, 1982.

Petition for Review Denied June 18, 1982.

Thomas J. McCabe and Wilbur T. Nelson, Boise, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A. I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

Doyne Jackson Boothe appeals his judgment of conviction for the offense of lewd conduct with a minor child in violation of I.C. § 18-6607. He assigns as error: (1) admission of testimony concerning lewd acts and sexual misconduct with the victim and her older sister, other than that with which he was charged; (2) insufficiency of corroboration of the victim's testimony; (3) submission of the question of sufficiency of corroborative evidence to the jury; (4) failure to give a requested instruction to the jury concerning corroboration of the prior sexual misconduct with the victim's sister; (5) admission of allegedly prejudicial testimony by a witness mentioning polygraph tests; and (6) admission of allegedly inculpatory statements made by Boothe to one of the state's witnesses. We affirm the judgment of conviction.

The victim, Boothe's stepdaughter, was twelve years of age at the time of the incident. The alleged incident occurred in the family home, while Boothe and the victim were watching television. According to the testimony of the victim, Boothe sat her on his lap, began kissing her, and fondling her breasts and genital area. The victim's mother, Boothe's wife, was outside working in the yard. The victim managed to free herself and went to her bedroom. There she stayed until later in the evening when she was able to find a time when her mother was alone. In an emotionally disturbed state, she then told her mother of the incident. The next day the mother and daughter moved from the home to a motel and subsequently the victim was sent to another state to reside with relatives. Boothe and his wife were later divorced.

Approximately two and a half years after the incident, charges of lewd and lascivious conduct with a minor were filed. The determination to file the charges was made after Mrs. Boothe learned that there had been other incidents of similar misconduct between Boothe and another stepdaughter. Before these charges were filed, Mrs. Boothe notified Boothe's employer of her allegations. After speaking with the victim and Mrs. Boothe, Boothe's supervisor terminated the employment.

At trial, the victim testified concerning a similar incident that took place while the family was on an overnight camping trip two days prior to the incident in question. The other stepdaughter, the victim's older sister, also testified as to similar sexual misconduct between Boothe and her. The incidents with the older sister occurred over a five-year period prior to the occasions with the victim. The court admitted the testimony of all these prior incidents, stating that it was probative of Boothe's motive, intent and inclination, and that the court would give an instruction to the jury regarding corroboration.

Also elicited at trial was testimony from Boothe's superior officer regarding statements made by Boothe at the time he was notified of his job termination. The supervisor testified:

The next statement was in the area that "You'll have a hard time proving this. There was no sexual intent." Basically, "You need intent to prove it. I patted her on the"-I believe he used the term ass-"and then told her to go tell her mother so I could get out of this marriage."

The first issue we address is Boothe's assertion of error in the admission of the evidence regarding the similar prior incidents with the victim and with the victim's sister. As a general rule, evidence that a defendant has committed other crimes is inadmissible to show criminal propensity on the part of the accused. See State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979). However, evidence of other crimes is admissible when relevant to prove: (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, (5) the identity of the person charged with the commission of the crime on trial, and (6) other similar issues. State v. Wrenn, 99 Idaho 506, 510, 584 P.2d 1231, 1235 (1978).

As another exception to the rule against admitting evidence of prior criminal activity, Idaho allows the admission of similar acts of sexual misconduct between a defendant and the victim or between the defendant and another witness, for corroboration of the victim's testimony in sex crime cases. State v. Elsen, 68 Idaho 50, 187 P.2d 976 (1947); State v. Hirsch, 64 Idaho 20, 127 P.2d 764 (1942) (also admitted to show the relation and familiarity of the parties); State v. Shelton, 46 Idaho 423, 267 P. 950 (1928) (admitted to show intimacy and "adulterous inclination" of defendant). In State v. Hammock, 18 Idaho 424, 110 P. 169 (1910), the defendant was convicted of the crime of statutory rape. The admission of evidence showing the commission of other like crimes by the defendant upon other persons was upheld. The evidence developed while the state was proving statements and declarations made by the defendant's wife. The court said that the evidence was admissible,

"(w)ith reference to this specific crime, and the conduct and habit of the defendant in the accomplishment of the general purpose of gratifying his lust on this and other girls .... Any evidence of other crimes which developed was so intimately and inseparably connected with the circumstances of this specific offense as to render it admissible as a part of the common criminal design, all of which was necessarily admissible in order to get a clear understanding of the situation of the parties and the probable truth or falsity of this charge." Id., at 429, 110 P. at 170.

In State v. Dowell, 47 Idaho 457, 276 P. 39 (1929), evidence was allowed in a statutory rape case that the defendant had intercourse with another young girl in the presence of the victim, to show the defendant's conduct, purpose and disposition toward the victim. In State v. Greensweig, 102 Idaho 794, 641 P.2d 340 (Ct.App.1982), this court recently upheld the admission of evidence of almost identical acts by the defendant Greensweig with a young girl other than the prosecutrix as probative of Greensweig's intent.

Conversely, it has been held that proof of a prior attempt to commit another sexual crime upon another female does not show any design or intent to perpetrate a rape three years later upon a present complainant. State v. Larsen, 42 Idaho 517, 246 P. 313 (1926). In State v. Garney, 45 Idaho 768, 265 P. 668 (1928), evidence of prior improprieties with another person was held inadmissible. There the court said:

"(I)t was in no way linked together with the offense for which appellant was on trial. There must be a causal relation or logical and natural connection between the two acts, or they must form parts of but one transaction. The general rule is, that when a man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses in his lifetime, wholly unconnected with that for which he is put upon trial, must be excluded." Id. at 775, 265 P. at 670.

These cases lead us to the conclusion that if testimony of prior acts is to be admissible in sex crime cases, the prior acts must not be too remote in time and there must be some logical connection between the fact sought to be proved and the evidence of prior sexual misconduct. In this case, the prior misconduct with the victim occurred only a few days earlier and was thus not too remote. Further, it was probative of Boothe's intent to use the victim to gratify his sexual desires. The testimony was admissible, although standing alone it could not be considered sufficient corroboration to sustain a conviction. See State v. Elsen, 68 Idaho at 56, 187 P.2d at 979.

The prior misconduct with the victim's sister transpired over a five year period ending approximately one year prior to the incident for which Boothe was prosecuted. It began shortly after Boothe's marriage to the girls' mother, and it terminated upon the older girl's marriage and departure from the Boothe home. We feel under the circumstances that it was not too remote to be considered. Sufficient logical connection also exists to allow its admission for corroborative purposes. It was probative of defendant's intent, or general plan to use his stepdaughters to gratify his sexual desires. I.C. § 18-6607. See State v. Maestas, 224 N.W.2d 248, (Iowa 1979); Staggers v. State, 120 Ga.App. 875, 172 S.E.2d 462 (1969). There was no error in the admission of either testimony.

Boothe also contends the trial court erred in denying his motions for directed verdict of acquittal based upon insufficiency of corroborative evidence. The trial in this case occurred in September, 1979, and therefore the rule requiring corroboration of the victim's testimony was in effect. State v. Greensweig, 102 Idaho 794, 641 P.2d 340 (Ct.App.1982); State v. Byers, 102 Idaho 159, 627 P.2d 788 (1981). A motion for directed verdict of acquittal must be granted only when there is no evidence upon which to base a verdict of guilty. State v. O'Bryan, 96 Idaho 548, 556, 531 P.2d 1193, 1201 (1975). Here there was evidence which tended to support the victim's testimony and therefore corroborate her allegation that the accused perpetrated the alleged act. The prosecutrix testified as to the incident of a few days prior, the older sister testified as to the similar sexual misconduct between Boothe and herself, and the victim's mother testified...