977 P.2d 890 (Idaho 1999), 23801, State v. Thompson

Docket Nº:23801.
Citation:977 P.2d 890, 132 Idaho 628
Opinion Judge:SCHROEDER, Justice. Justice Pro Tem JOHNSON,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Terry L. THOMPSON, Defendant-Appellant.
Attorney:Wiebe & Fouser, P.A., Canyon County Public Defenders; Thomas A. Sullivan, Deputy Public Defender, Caldwell, for appellant. Thomas A. Sullivan argued. Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
Case Date:April 06, 1999
Court:Supreme Court of Idaho
 
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Page 890

977 P.2d 890 (Idaho 1999)

132 Idaho 628

STATE of Idaho, Plaintiff-Respondent,

v.

Terry L. THOMPSON, Defendant-Appellant.

No. 23801.

Supreme Court of Idaho, Boise.

April 6, 1999

Page 891

[132 Idaho 629] Wiebe & Fouser, P.A., Canyon County Public Defenders; Thomas A. Sullivan, Deputy Public Defender, Caldwell, for appellant. Thomas A. Sullivan argued.

Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

SCHROEDER, Justice.

Terry L. Thompson appeals from the judgments of conviction for sexual battery of a minor and assault and appeals from the sentence for sexual battery of a minor entered against him in the district court.

I.

BACKGROUND AND PRIOR PROCEEDINGS

Thompson was charged under section 18-1508A of the Idaho Code (I.C.), sexual battery of a minor child sixteen or seventeen years of age, because he had allegedly touched a 16-year-old girl's breasts with his hand and mouth and was at least five years older than the girl. The indictment also charged him with aggravated assault under I.C. §§ 18-901(b) and 18-905(a) because he had allegedly threatened the girl with a knife. The district court ordered a psychological evaluation of Thompson pursuant to stipulation of the parties to determine whether Thompson was competent to stand trial. Based on the psychological report, the district court found that Thompson was competent to stand trial.

Thompson's attorney called him to testify at the trial. Prior to Thompson taking the stand, the trial court granted the State's motion to allow cross-examination regarding a prior felony conviction, limiting the examination to the fact of the conviction. The court prohibited reference to the nature of the prior conviction--i.e., lewd and lascivious conduct.

Later in the trial, Thompson moved for admission of his written psychological evaluation. The State stipulated to the admission. Thereafter, during cross-examination of Thompson's ex-wife, the State requested a ruling on whether it would be allowed to cross-examine her regarding the reasons for her divorce from Thompson, assuming the reason to be Thompson's prior felony conviction

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[132 Idaho 630] for lewd conduct he engaged in with their daughter. The court initially refused, ruling that the prior conduct was too remote. The State responded that the prior bad act evidence was already in evidence in the psychological report. Thompson moved to strike that portion of the report which referred to his history of sexual abuse, the prior conviction and sentence. The trial court denied the motion. Thompson then moved to withdraw the report from evidence. The court also denied this motion, and the State was allowed to inquire why Thompson and his ex-wife had divorced. She testified that he was having an affair with a 21-year-old woman.

Near the conclusion of the case, the trial judge asked the parties if they had objections to the proposed jury instructions. Thompson inquired about instructions on lesser included offenses. After the instructions on that subject were called to his attention, Thompson replied that the instructions were "satisfactory."

The jury returned verdicts of guilty to the charge of sexual battery of a minor and assault. The trial court sentenced Thompson to a unified 35 years with 15 years fixed for the sexual battery of a minor.

Thompson appeals the convictions and the sentence for sexual battery. He contends that the trial court erred in the following respects: (1) by ruling that if he testified in his own defense, the State could elicit on cross-examination the fact that he had a prior felony conviction, (2) by refusing to strike prejudicial and inadmissible evidence from the psychological report and by refusing to withdraw the report, (3) by allowing his ex-wife to testify as to the reasons she divorced him, and (4) by failing to instruct the jury on the lesser included offense of sexual abuse of a minor. Thompson argues that the cumulative effect of the above errors deprived him of a fair trial.

II.

THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF THOMPSON'S PRIOR CONVICTION ON THE ISSUE OF CREDIBILITY.

Thompson argues that his prior felony conviction for lewd and lascivious conduct under I.C. § 18-1508A should not have been introduced to impeach his credibility at trial.

Rule 609, of the Idaho Rules of Evidence (I.R.E.), provides, in pertinent part:

(a) General rule. For the purposes of attacking the credibility of a witness, evidence of the fact that the witness has been convicted of a felony and the nature of the felony shall be admitted if elicited from the witness or established by public record, but only if the court determines in a hearing outside the presence of the jury that the fact of the prior conviction or the nature of the prior conviction, or both, are relevant to the credibility of the witness and that the probative value of admitting this evidence outweighs its prejudicial effect to the party offering the witness.

I.R.E. 609(a). Under this rule the trial court must apply a two-prong test to determine whether evidence of the prior conviction should be admitted: (1) the court must determine whether the fact or nature of the conviction is relevant to the witness' credibility; and (2) if so, the court must determine whether the probative value of the evidence outweighs its prejudicial impact. State v. Bush, 131 Idaho 22, 30, 951 P.2d 1249, 1257 (1997).

In reviewing the trial court's decision as to the first prong concerning relevance, the standard of review is de novo. Id. (citing State v. Raudebaugh, 124 Idaho 758, 766, 864 P.2d 596, 604 (1993)). In reviewing the trial court's decision as to the second prong concerning whether the probative value of the evidence outweighs its prejudicial impact, the standard of review is abuse of discretion. Id. at 31, 951 P.2d at 1258.

When reviewing an exercise of discretion on appeal, this Court conducts the following inquiry: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the court acted within the outer bounds of such discretion and consistently with legal standards applicable to specific choices; and (3) whether the court reached its decision by an exercise of reason.

Id. (citing State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989)).

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[132 Idaho 631]A. First Prong--Relevance

In State v. Ybarra, 102 Idaho 573, 634 P.2d 435 (1981), the Court recognized that " 'different felonies have different degrees of probative value on the issue of credibility,' " id. at 580, 634 P.2d at 442 (quoting People v. Rollo, 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771, 775 (1977)), and identified three categories of felonies to determine whether a prior conviction could be used for impeachment. Category one involves crimes such as perjury which are "intimately connected" with the issue of credibility. Id. Category two involves crimes such as robbery or burglary which are "somewhat less relevant" to the issue of credibility. Id. Finally, category three involves " '[a]cts of violence ... [which] generally have little or no direct bearing on honesty and veracity.' " Id. at 581, 634 P.2d at 443. With regard to category two crimes, the Ybarra court noted:

"On the other hand robbery, larceny, and burglary, while not showing a propensity to falsify, do disclose a disregard for the rights of others which might reasonably be expected to express itself in giving false testimony whenever it would be to the advantage of the witness. If the witness had no compunction against stealing another's property or taking it away from him by physical threat or force, it is hard to see why he would hesitate to obtain an advantage for himself or friend in a trial by giving false testimony. Furthermore, such criminal acts, although evidenced by a single conviction, may represent such a marked break from...

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