880 P.2d 771 (Idaho App. 1994), 20640, State v. Wood

Docket Nº:20640.
Citation:880 P.2d 771, 126 Idaho 241
Opinion Judge:LANSING, Judge. PERRY,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Jehn C. WOOD, Defendant-Appellant.
Attorney:Siebe Law Office, Moscow, for appellant. James E. Siebe, argued. Larry EchoHawk, Atty. Gen., Douglas A. Werth, Deputy Atty. Gen., Boise, for respondent. Douglas A. Werth, argued.
Judge Panel:WALTERS, J., concurs. PERRY, Judge, dissenting.
Case Date:August 29, 1994
Court:Court of Appeals of Idaho
 
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Page 771

880 P.2d 771 (Idaho App. 1994)

126 Idaho 241

STATE of Idaho, Plaintiff-Respondent,

v.

Jehn C. WOOD, Defendant-Appellant.

No. 20640.

Court of Appeals of Idaho.

August 29, 1994

Siebe Law Office, Moscow, for appellant. James E. Siebe, argued.

Larry EchoHawk, Atty. Gen., Douglas A. Werth, Deputy Atty. Gen., Boise, for respondent. Douglas A. Werth, argued.

LANSING, Judge.

Jehn C. Wood appeals from his conviction for felony injury to a child, I.C. § 18-1501(1). He contends that the district court erred in admitting testimony regarding a prior incident

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[126 Idaho 242] where Wood allegedly choked or pushed the child's mother. Because we conclude that testimony should not have been admitted on this subject, we vacate the judgment of conviction and remand this case for a new trial.

Two-year-old Tasha Almandinger was pronounced dead on November 17, 1990. The preceding day Tasha's mother, Pamela Almandinger, had left Tasha alone with Almandinger's live-in-boyfriend, Wood, 1 while she made a brief trip to a grocery store. Almandinger testified that she left her house in Fernwood, Idaho, at 5:25 p.m. and met Wood part way in her return trip about five minutes later. Wood intercepted Pamela and exited his vehicle carrying Tasha in his arms. Tasha was unconscious and not breathing. Almandinger rushed the child to a nearby fire-station, from which the child was transported by ambulance to a hospital in St. Maries. Emergency medical technicians aboard the ambulance were able to partially restore Tasha's breathing after administering back blows en route to the hospital. At the hospital, doctors suspected that Tasha's airway was obstructed. When the physicians applied suction to her airway, partially eaten grapes were removed from Tasha's mouth and esophagus, and her airway was improved. Tasha was eventually transferred to a hospital in Spokane, Washington, and diagnosed as suffering severe brain damage due to asphyxiation, and a subdural brain hematoma. An examining physician suspected that Tasha was suffering from shaken baby syndrome, and the police were informed of this suspicion. However, a later radiological examination of Tasha revealed no evidence of shaken baby syndrome or other injuries consistent with child abuse. Tasha was eventually pronounced dead, and life support systems were removed. An autopsy revealed that the cause of death was a blunt impact trauma to the brain.

Wood was charged with second degree murder, I.C. §§ 18-4001, 18-4003(g). The complaint alleged that he had killed Tasha by inflicting a blunt impact injury. It was the State's theory that the blunt impact caused bleeding and swelling of the brain, which in turn led to respiratory arrest. Because there were no eyewitnesses to the alleged injury, the State's evidence against Wood consisted primarily of evidence that until the time Tasha was left alone with Wood she appeared to be in good health; testimony that Wood was the last person who had contact with Tasha; and the testimony challenged here: that Wood had been physically abusive of Almandinger on one occasion.

Wood denied injuring the child. At trial the defense presented medical evidence that the extent of brain swelling which would cause respiratory arrest could not have occurred in the short period that Wood was alone with the child. Wood thereby attempted to refute the State's theory that the injury must have been inflicted while Tasha was alone with him.

Wood testified at trial that he arrived home from hunting on the day in question at approximately 5:25 p.m. and that Almandinger left for the store upon his arrival. Wood explained that he went into another room to answer a telephone call, and when last he saw Tasha she was walking away from the door, crying over her mother's departure. When Wood returned to the room, he stated, Tasha was lying unconscious. After unsuccessfully attempting to revive her, Wood picked Tasha up, placed her in his vehicle and began driving toward the store where Almandinger had gone. He intercepted Almandinger en route as described above.

Medical evidence at trial established that Tasha's death was due to a blunt instrument trauma to the head caused either by a blow or by being thrown against something. Testimony also indicated, however, that the amount of swelling necessary to cause respiratory arrest from such a blunt impact trauma would take at least fifteen minutes, and up to several hours, to occur. There was also uncontradicted medical testimony that respiratory arrest caused by such an injury could not be corrected absent surgical intervention. The defense contrasted this evidence with Wood's and Almandinger's uncontradicted testimony that Wood was alone with Tasha for no more than five minutes

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[126 Idaho 243] and testimony that the emergency medical technicians had partially restored Tasha's breathing on the way to the hospital and that breathing was improved further at the St. Maries hospital. The State attempted to attack this defense by showing that Almandinger, who by the time of trial was married to Wood and had given birth to another child fathered by him, was slanting her approximation of the time Wood was alone with Tasha in order to make Wood appear innocent.

At the conclusion of the trial the jury was instructed on the elements of the charged offense, second degree murder, and the lesser included offenses of voluntary manslaughter, I.C. § 18-4006, and felony injury to a child, I.C. § 18-1501. The jury acquitted Wood of murder and manslaughter, but found him guilty of felony injury to a child.

Prior to trial Wood had filed a motion to exclude any evidence that he had a propensity to commit violent acts. In response, the State filed its own pretrial motion seeking a determination that the court would admit "evidence showing that the defendant is a violent individual having abused Pamela (Almandinger) Wood and other women." Specifically, the State sought to question Almandinger regarding an incident where Wood had allegedly choked her. The State knew that Almandinger would deny she had been choked by Wood, for she had already denied it during her testimony at the preliminary hearing. Nonetheless, the State sought to present her testimony about the incident at trial. The State also asked authorization to present the testimony of Wilma Banderob, a co-worker of Almandinger's, indicating that Almandinger had told Banderob of being choked by Wood. The district court denied Wood's motion, ruling that the State would be permitted to introduce evidence that "tends to prove defendant's quick temper, violent temper, or propensity to physical violence if such exists, provided the same is not too remote in time, etc." Just before trial, the court clarified its ruling by elaborating that if Almandinger denied telling co-workers that she had been choked, the State could impeach her with her prior statements to co-workers.

Almandinger was called as a witness by the State. On direct examination she acknowledged that Wood sometimes had a temper, but denied that Wood had ever choked her or that she had told co-workers that Wood had once choked her. The State then called Wilma Banderob who testified that she had seen bruises or marks on Almandinger's throat and that Almandinger had told her she had been choked by Wood.

On appeal the defendant argues that the State should not have been permitted to elicit this testimony from Almandinger and Banderob because it was evidence of prior bad acts of the defendant offered to show a propensity to be violent and was, therefore, inadmissible under I.R.E. 404. 2 He also contends that Banderob's testimony was hearsay. 3

  1. ALMANDINGER'S TESTIMONY

    As a threshold matter, we address the State's assertion that Wood did not preserve his challenge to Almandinger's testimony for appeal because he did not object to this testimony at trial. The State's argument is not well-taken. Wood did attempt to exclude this testimony through his motion in limine, which was denied. A reiteration of his objection to this testimony at trial was not necessary in order to preserve the issue for appeal. Davidson v. Beco Corp., 114 Idaho 107, 108 n. 1, 753 P.2d 1253, 1254 n. 1 (1987) citing Davidson v. Beco Corp., 112 Idaho 560, 563-64, 733 P.2d 781, 784-85 (Ct.App.1986); Cf. State v. Hester, 114 Idaho

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    [126 Idaho 244] 688, 699, 760 P.2d 27, 38 (1988) (if trial judge reserves ruling on motion until point in trial where evidence is offered, objection must be made at that time). As we pointed out in Davidson v. Beco Corp., 112 Idaho at 564, 733 P.2d at 785, a trial lawyer may have tactical reasons to avoid asserting in front of the jury an evidentiary objection that has already been overruled by a pretrial order.

    Accordingly, we will consider Wood's argument that a portion of Almandinger's testimony should have been excluded. The following questions and answers are at issue:

    [BY THE PROSECUTOR]: Is it true that the Defendant has a temper?

    A: Sometimes.

    Q: Do you recall being choked by the Defendant prior to Tasha's death?

    A: He didn't choke me, we had a pushing match.

    Q: Did that pushing match result in bruises to your throat?

    A: Red marks.

    ....

    Q: Do you recall telling your co-workers that the Defendant had choked you?

    A: No, I said he pushed me. I pushed him and he pushed me, and to calm me down pushed me up against the back of the wall.

    Q: With his hands on your throat?

    A: Yes.

    Q: And he did that to calm you down?

    A: Well, yeah, because we were arguing with each other.

    The admissibility of this testimony turns upon I.R.E. 404, which provides that evidence of a trait of character and evidence of other crimes or wrongs is not admissible to prove that the individual acted...

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