951 P.2d 1249 (Idaho 1997), 23115, State v. Bush

Docket Nº:23115, 23122.
Citation:951 P.2d 1249, 131 Idaho 22
Opinion Judge:SILAK,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Daniel BUSH, Defendant-Appellant.
Attorney:Kim W. Claussen, Pocatello, for defendant-appellant. Alan G. Lance, Attorney General, L. LaMont Anderson, Deputy Attorney General, Boise, for plaintiff-respondent. L. LaMont Anderson, argued.
Judge Panel:TROUT, C.J., and JOHNSON, SCHROEDER and WALTERS, JJ., concur.
Case Date:December 22, 1997
Court:Supreme Court of Idaho
 
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Page 1249

951 P.2d 1249 (Idaho 1997)

131 Idaho 22

STATE of Idaho, Plaintiff-Respondent,

v.

Daniel BUSH, Defendant-Appellant.

Nos. 23115, 23122.

Supreme Court of Idaho, Idaho Falls.

December 22, 1997

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[131 Idaho 25] Kim W. Claussen, Pocatello, for defendant-appellant.

Alan G. Lance, Attorney General, L. LaMont Anderson, Deputy Attorney General, Boise, for plaintiff-respondent. L. LaMont Anderson, argued.

SILAK, Justice.

This is an appeal from a judgment of conviction and sentence after a jury found appellant Daniel Bush (Bush) guilty of forcible sexual penetration by use of a foreign object, an infamous crime against nature and lewd conduct with a minor child under the age of sixteen. We affirm.

I.

FACTS AND PROCEDURAL BACKGROUND

On May 3, 1995, fifteen-year old J.S. was living with his mother, B.S., at their residence in McCammon, Idaho, where they had lived for the previous five years. J.S. was awakened on that morning at approximately 4:00 a.m. He turned on the light and saw a man standing in his bedroom wearing a black t-shirt, blue jeans or blue sweat pants, and an orange knit cap on his head. The man was later identified as Bush, who had rented this same house from B.S. and her husband between 1987 and 1990. J.S. was able to see Bush's face immediately prior to the cap being pulled over his face. Bush turned the light off and began fondling J.S.'s penis. After beating J.S. with his fists, Bush placed J.S.'s penis in his mouth for five to ten minutes.

Bush then forced J.S. on a couch in J.S.'s bedroom. J.S. refused Bush's demand that J.S. engage in fellatio. J.S. was pushed to his knees where a t-shirt was tied around his face. Bush then tied J.S.'s arms behind his back with a Nintendo cord and a clock cord, and again placed J.S.'s penis inside his mouth for approximately five to ten minutes. At this point, J.S. was able to get a second look at Bush and noticed a tattoo on his arm of an eagle or some other kind of bird.

Bush then took J.S. downstairs to the kitchen, made him lie down on the floor on a blanket, and then said he was going upstairs to see J.S.'s mother. Bush threatened to kill J.S. if he moved. However, J.S. was able to free his arms from the cords, ran out of the house to his car and drove to the Flying J truck stop where he called 911.

Officer Fonnesbeck responded to the 911 call at the Flying J and asked J.S. if he knew

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[131 Idaho 26] the identity of his attacker. Fonnesbeck testified at trial that J.S. responded, "I don't know his name, but I believe that he used to live in our house up here." J.S. was questioned a couple of hours later by another police officer, Officer Thomas, when J.S. was returned to a neighbor's house. Officer Thomas testified that J.S. gave a description of his attacker and identified him as "a guy that used to rent our house, that my parents used to rent to." When asked who it was, J.S. said "Dan Bush." When asked if J.S. was sure it was Bush, he responded, "well, he certainly looks like Dan." After being transported to the hospital, J.S. was questioned a third time about the identity of his attacker. Detective Vollmer testified that J.S. stated that the attacker "looked like the man that used to rent from his dad and his name was Dan Bush." Detective Hickman testified that after J.S. identified his attacker as Bush while at the hospital, Hickman returned to the sheriff's office where he found a 1990 photograph of Bush. Hickman testified that he then returned to the hospital and showed the photograph to J.S. Hickman stated that J.S.'s response was "this looks like the person only he's a little older and has a little more gray hair."

B.S. testified she was also awakened during the night by an intruder standing over her bed. When she asked what he wanted, Bush told her to shut up or he would kill her and began beating her with his fists. B.S. described Bush, including his dark clothing and orange cap which was not pulled down over his face until after B.S. was able to observe his facial features while he was approximately two feet away. B.S. testified that she had a "real strong feeling that [her attacker] knew me and I kept trying to figure out who the person was."

After beating B.S. into submission, Bush had her turn onto her stomach, removed her pajama bottoms and forced his finger into her vagina. Forcing a second finger into her vagina, Bush repeatedly penetrated B.S.'s vagina for approximately five minutes. As Bush became more sexually aroused, B.S. believed she was going to be raped and asked if he had a condom. Bush told B.S. not to move and left the room. When Bush came back into the room, B.S. ran past him, down the stairs and out the door to the neighbor's house where she called 911.

While at the neighbor's house, B.S. was interviewed by police. She gave a description of her attacker, including his clothing. B.S. testified that while at the neighbor's house, and after she had calmed down, she had concluded her attacker was Bush. She stated at trial:

I put together my feeling that he knew me based on his actions of not beating me totally to death before sexually assaulting me. My observation that this person knew the home in the dark, knew to bend over by my bedside, could get up and down the stairs quietly, the size and the stature, and somewhat looking at--remembering looking at his face brought me to think of Dan Bush.

At the hospital, B.S. gave a more detailed description and further explained to Detective Vollmer that Bush's "physique was like the man that had rented from them before."

Later that day, Bush was apprehended by a SWAT team after being found hiding in the rafters of a residential garage in McCammon. Bush was subsequently taken to the hospital where his clothing was seized and pictures were taken of scratches and bruises on his back, neck and arm.

In June 1995, Bush was originally charged with three felony counts: (I) battery with intent to commit a serious felony, I.C. § 18-911; (II) lewd conduct with a minor under sixteen, I.C. § 18-1508; and (III) an infamous crime against nature, I.C. § 18-6605. Thereafter, Bush filed a motion to dismiss claiming that counts II and III involving J.S. were a continuous course of the same act. Bush argued that a conviction of both counts would constitute double jeopardy in violation of I.C. § 18-301 and the Idaho and United States Constitutions. At a hearing held in October 1995, the State agreed to amend the information to reflect that count II occurred

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[131 Idaho 27] on the bed and count III occurred on the couch. The district court denied Bush's motion to dismiss, concluding that the conduct charged in counts II and III comprised two distinct acts which allegedly occurred at different times and locations.

At the same hearing, Bush made an oral motion to dismiss count I, pertaining to B.S., claiming there was insufficient evidence presented at the preliminary hearing. Based upon the State's subsequent motion to amend the information, the district court dismissed count I without prejudice, and in November 1995, an amended information was filed charging forcible sexual penetration by use of a foreign object. In March 1996, an indictment was filed charging forcible sexual penetration by use of a foreign object involving the same facts as those charged in count I of the original information. All three charges were consolidated for trial.

Bush filed a motion in limine to preclude use of his prior felony convictions at trial. The district court ruled that Bush's 1972 conviction for delivery of a controlled substance could not be used at trial. However, the court further ruled that Bush's 1993 Wyoming conviction for immoral acts with a child could be admitted for impeachment if Bush testified.

Bush moved to suppress J.S.'s pretrial and trial identification of Bush, claiming that showing J.S. a single photo tainted his identification. Bush further sought suppression of tire and shoe imprint castings and expert testimony relating to identification of the castings based upon the failure of the police to adequately "secure" the crime scene from the time the imprints were discovered until the castings were made. The district court denied Bush's motion regarding both the tire and shoe imprint castings and J.S.'s pretrial and trial identification of Bush.

Prior to trial, Bush submitted a set of jury instructions that included a Holder instruction. During the jury instruction conference, Bush requested that the Holder instruction be given. The district court denied Bush's request.

Following trial, the jury found Bush guilty of all three counts. The district court sentenced Bush to a unified forty-five years with twenty-five fixed for count I, forcible sexual penetration by use of a foreign object; a fixed life sentence without the possibility of parole for count II, lewd conduct with a minor under sixteen; and a unified fifty-five years with twenty-five years fixed for count III, an infamous crime against nature. The district court ordered the sentences to be served concurrently. Bush appeals.

II.

ISSUES ON APPEAL

  1. Whether the district court erred in allowing J.S.'s identification of Bush after the single photo showup.

  2. Whether the district court erred in ruling that Bush could be cross-examined about a prior Wyoming conviction for immoral acts with a child if Bush testified at trial.

  3. Whether the district court erred by refusing to give a Holder instruction.

  4. Whether the district court erred in ruling that there was sufficient evidence to sustain the jury verdict of guilty on each count.

  5. Whether the district court erred in failing to dismiss either the infamous crime against nature charge or the...

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