819 P.2d 1143 (Idaho 1991), 18096, State v. Moore

Docket Nº:18096.
Citation:819 P.2d 1143, 120 Idaho 743
Opinion Judge:BOYLE, Justice. JOHNSON,
Party Name:. STATE of Idaho, Plaintiff-Respondent, v. Lawrence E. MOORE, Defendant-Appellant.
Attorney:Alan E. Trimming, Ada County Public Defender, Chris Kronberg, Deputy Public Defender, Boise, for defendant-appellant. Chris Kronberg argued. Jim Jones, Atty. Gen., Michael J. Kane, Deputy Atty. Gen., Boise, for plaintiff-respondent. Michael J. Kane argued.
Judge Panel:JOHNSON, Justice, dissenting.
Case Date:October 01, 1991
Court:Supreme Court of Idaho
 
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Page 1143

819 P.2d 1143 (Idaho 1991)

120 Idaho 743

.

STATE of Idaho, Plaintiff-Respondent,

v.

Lawrence E. MOORE, Defendant-Appellant.

No. 18096.

Supreme Court of Idaho, Boise.

October 1, 1991

Rehearing Denied Dec. 5, 1991.

Page 1144

[120 Idaho 744] Alan E. Trimming, Ada County Public Defender, Chris Kronberg, Deputy Public Defender, Boise, for defendant-appellant. Chris Kronberg argued.

Jim Jones, Atty. Gen., Michael J. Kane, Deputy Atty. Gen., Boise, for plaintiff-respondent. Michael J. Kane argued.

BOYLE, Justice.

In this criminal case we are called upon to determine whether it was an abuse of the district court's discretion to deny defendant's motion in limine regarding evidence of prior uncharged sexual misconduct.

I.

The appellant, Lawrence E. Moore, was charged with lewd conduct with a minor and sexual abuse of a child allegedly involving sexual conduct with his granddaughter during the period between February, 1984, and May, 1985, when the child was six or seven years of age.

Moore initially pled innocent to both charges, and filed a motion in limine to prevent the State from introducing evidence of alleged prior sexual misconduct with his daughter and stepdaughter. The State sought to introduce evidence that Moore had allegedly engaged in uncharged sexual misconduct with his stepdaughter during the period from 1977 to 1981, when she was between five and nine years of age. The State also proffered evidence that Moore had allegedly engaged in similar misconduct with his daughter during the period from 1969 to 1973, when she was between the ages of nine and thirteen. The district court denied Moore's motion in limine on the basis that the evidence showed a common scheme or plan, was probative of Moore's motives or lustful disposition toward children, and was indicative of specific intent. Upon the court's denial of his motion, Moore entered a conditional plea of guilty pursuant to I.C.R. 11(a)(2) 1. The charge of sexual abuse of a child was subsequently dismissed and Moore was sentenced to a term of not less than three years and not more than fifteen years on the lewd conduct charge. Moore now appeals the district court's ruling that the evidence of this alleged uncharged sexual misconduct is admissible.

II.

On Moore's motion in limine, the trial court ruled that the testimony concerning

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[120 Idaho 745] prior sexual misconduct was admissible under I.R.E. 404(b) 2 because it showed: 1) a common criminal plan involving appellant and young female children in his household; 2) was probative of appellant's motives or lustful disposition toward young children for satisfaction of his sexual desires; and 3) was indicative of specific intent, and negates a contention that the acts might have been innocent or mistakenly construed.

Moore asserts on appeal that the testimony regarding the prior uncharged sexual misconduct with his daughter and stepdaughter did not fall within any of the exceptions listed in I.R.E. 404(b); and that the probative value, if any, was substantially outweighed by its prejudicial impact.

Generally, evidence of other criminal acts or offenses is inadmissible to prove the character of a person in order to show that he committed the crime for which he is on trial. I.R.E. 404(b); State v. Martin, 118 Idaho 334, 796 P.2d 1007 (1990); State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979); State v. Wrenn, 99 Idaho 506, 584 P.2d 1231 (1978). However, such acts may be "admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." I.R.E. 404(b); see also State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1984); State v. Wrenn, 99 Idaho 506, 584 P.2d 1231 (1978); State v. Hatton, 95 Idaho 856, 522 P.2d 64 (1974); State v. Shepherd, 94 Idaho 227, 486 P.2d 82 (1971); State v. Kombol, 81 Idaho 530, 347 P.2d 117 (1959).

A two-tiered analysis is used to determine the admissibility of evidence concerning uncharged misconduct. First, the evidence must be relevant to a material and disputed issue concerning the crime charged. Second, the court must determine whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant. I.R.E. 403; State v. Sharp, 101 Idaho 498, 616 P.2d 1034 (1980); State v. Winkler, 112 Idaho 917, 736 P.2d 1371 (Ct.App.1987); State v. Roach, 109 Idaho 973, 712 P.2d 674 (Ct.App.1985). This balancing process is within the discretion of the trial judge. State v. Abel, 104 Idaho 865, 664 P.2d 772 (1983).

In the instant case, the trial court denied Moore's motion in limine on the basis that the proposed testimony demonstrated a common criminal plan or scheme on Moore's part which was probative of his motives or lustful disposition, and was indicative of the specific intent required for a conviction. After a careful review of the record and the authorities, we hold that there was no abuse of discretion by the trial court in ruling that the proffered testimony demonstrated a common scheme or plan. The testimony demonstrates Moore's general plan to exploit and sexually abuse an identifiable group of young female victims. The testimony by Moore's daughter, stepdaughter and that of his granddaughter, the victim, reveals a continuing series of alleged similar sexual encounters directed at the young female children living within his household. See generally State v. Maylett, 108 Idaho 671, 701 P.2d 291 (Ct.App.1985); State v. Boothe, 103 Idaho 187, 646 P.2d 429 (Ct.App.1982).

With regard to relevancy, the proffered testimony is relevant to the issue of credibility and corroboration of the victim's testimony. Although corroboration is no longer mandatorily required in all sex crime cases, 3 corroborating evidence may still be relevant, particularly in sex crime cases involving minor victims. State v.

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[120 Idaho 746] Schwartzmiller, 107 Idaho 89, 685 P.2d 830 (1984) ; see also Soper v. State, 731 P.2d 587 (Alaska App.1987); People v. Covert, 249 Cal.App.2d 81, 57 Cal.Rptr. 220 (Ct.App.1967). Corroborative evidence in sex crime cases involving youthful victims is often times necessary to establishing the credibility of a young child. Too often the determination of the case rests strictly upon establishing that the victim's testimony is more credible than that of the alleged perpetrator. As was discussed in a UCLA law review article,

[A]dmission of corroborative evidence serves the dual purpose of reducing the probability that the prosecuting witness is lying, while at the same time increasing the probability that the defendant committed the crime.

Other Sex Offenses, 25 UCLA L.Rev. 261, 286 (1977).

Past decisions by this Court spanning more than eighty years have held that evidence of prior sexual misconduct is admissible where relevant to the parties' credibility. In State v. Hammock, 18 Idaho 424, 110 P. 169 (1910), it was held:

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.

18 Idaho at 429, 110 P. at 170. Where relevant to the credibility of the parties, evidence of a common criminal design is admissible. State v. Hammock, id. In addition, in State v. Schwartzmiller, 107 Idaho 89, 685 P.2d 830...

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