State v. Aspeytia

• Decision Date: 27 February 1997
• Docket Number: No. 21938,21938
• Citation: 130 Idaho 12,936 P.2d 210
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Raul ASPEYTIA, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 210

936 P.2d 210

130 Idaho 12

STATE of Idaho, Plaintiff-Respondent, v. Raul ASPEYTIA, Defendant-Appellant.

No. 21938.

Court of Appeals of Idaho.

Feb. 27, 1997.

Petition for Review Denied,

May 8, 1997.

John A. Olson, Twin Falls County Public Defender, Twin Falls, for defendant-appellant.

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

LANSING, Judge.

Raul Aspeytia is appealing from his judgment of conviction and sentence entered after a jury found him guilty of lewd conduct with a minor child under sixteen in violation of I.C. § 18-1508. After considering Aspeytia's claims of error, we affirm.

I. FACTS

The events leading to Aspeytia's prosecution began in 1993 when his six-year-old stepdaughter, J.M., disclosed that Aspeytia had touched her in a sexual manner. J.M. testified at trial that while she was at home alone with Aspeytia, he removed her clothing and touched her with his penis in her mouth, between her legs and in her buttocks. J.M. also reported that Aspeytia showed her a sexually explicit movie. Later that same evening, J.M. disclosed these events to her The day after the alleged molestation J.M. was examined by Dr. Kevin Kraal, an emergency room physician. The following day an examination was also conducted by Dr. Barton Adrian, a pediatrician. Both physicians testified at trial that, based upon their physical examinations and interviews of J.M., they were of the opinion that she had been sexually molested.

brothers, and one of the brothers informed J.M.'s mother the next day.

On appeal, Aspeytia asserts that the conviction should be vacated because the evidence against him is insufficient to support the jury's verdict, because there were errors in the admission of testimony of physicians who examined the victim and errors in the sentencing proceeding, and because he received ineffective assistance of counsel.

II. ANALYSIS

A. Physicians' Testimony

Aspeytia first contends that the trial court erred in allowing the testimony of Dr. Kraal and Dr. Adrian that, in their opinions, J.M. had been sexually molested. Aspeytia contends that Dr. Kraal was unqualified to make such an assessment and that, as to both physicians, their opinions were not based upon physical evidence and therefore amounted to nothing more than an impermissible vouching for the credibility of the victim.

Aspeytia's counsel did not object to this testimony at trial. The State therefore argues that the absence of any objection to the evidence in the trial court precludes consideration of this issue on appeal. However, Aspeytia contends that this Court may review admission of the testimony for "fundamental error" as the Court did under similar circumstances in State v. Johnson, 119 Idaho 852, 810 P.2d 1138 (Ct.App.1991), and as authorized by I.R.E. 103(d). ¹ Fundamental error has been defined as such error as goes to the foundation or basis of a defendant's rights or goes to the foundation of the case or takes from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive. State v. McAway, 127 Idaho 54, 60, 896 P.2d 962, 968 (1995); State v. Sarabia, 125 Idaho 815, 818, 875 P.2d 227, 230 (1994).

It must be acknowledged that there is a lack of clarity in the case law of this state as to whether the admission of evidence without objection at trial may ever be reviewed for fundamental error on appeal. Compare State v. Walters, 120 Idaho 46, 59, 813 P.2d 857, 870 (1991) (Boyle, J., concurring) ² (holding that admission, without objection, of fire investigator's opinion, that the defendant was the person who started the fire was fundamental error); and Johnson, supra, (holding that physician's opinion, elicited without objection, that the victim had been sexually molested was fundamental error requiring reversal of the conviction), with McAway, 127 Idaho at 60-61, 896 P.2d at 968-69 (refusing to consider challenge to the admissibility of a videotape that was raised for the first time on appeal, the Court stating that an abuse of discretion in admitting evidence is a trial error and "does not go to the foundation of the case or take from the defendant a right which was essential to his defense"); State v. Higgins, 122 Idaho 590, 596, 836 P.2d 536, 542 (1992) (declining to consider an issue not presented to the trial court concerning expert testimony about the profile of a sex offender because "any error in admitting the testimony was not fundamental error, because it dealt with the admission of evidence and did not go to the foundation of the case or take from Higgins a right that was essential to his defense."); and State v. Bingham, 116 Idaho 415, 423, 776 P.2d 424, 432 (1989) (holding that error in admitting expert opinion would not constitute fundamental error). However, in this case it is unnecessary that we determine whether the fundamental error doctrine may be applied to evidentiary issues, for we must, in any event, consider the admissibility of the testimony of Dr. Kraal and Dr. Adrian pursuant to another issue raised by Aspeytia on appeal, his claim of ineffective assistance of counsel.

Aspeytia argues that his attorney's failure to object to this testimony during trial constitutes ineffective assistance of counsel and requires that Aspeytia be afforded a new trial. We generally decline to consider claims of ineffective assistance of counsel on a direct appeal because they are more appropriately brought through a post-conviction relief action where an evidentiary record pertinent to the claims can be developed. See State v. Mitchell, 124 Idaho 374, 376, 859 P.2d 972, 974 (Ct.App.1993); State v. Munoz, 118 Idaho 742, 745-46, 800 P.2d 138, 141-42 (Ct.App.1990); State v. Darbin, 109 Idaho 516, 523, 708 P.2d 921, 928 (Ct.App.1985). However, because Aspeytia's claim of ineffective assistance is based on counsel's omission to make objections during the trial, the transcript of the trial itself provides a sufficient record to permit our review, and we will therefore consider the claim. See State v. Pugsley, 128 Idaho 168, 174, 911 P.2d 761, 767 (Ct.App.1995); State v. Frederick, 126 Idaho 286, 289, 882 P.2d 453, 456 (Ct.App.1994).

To prevail on a claim of ineffective assistance of counsel the appellant must show that counsel's representation was deficient and that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Roles, 122 Idaho 138, 144, 832 P.2d 311, 317 (Ct.App.1992). To establish a deficiency, the applicant must demonstrate that the attorney's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65; Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). In order to show prejudice, the defendant must establish that there is a reasonable probability that, absent counsel's unprofessional errors, the outcome of the trial would have been different. Id. at 761, 760 P.2d at 1177. This test is met if the deficient conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Ivey v. State, 123 Idaho 77, 80, 844 P.2d 706, 709 (1992).

Effective legal representation does not require that an attorney object to admissible evidence. Higgins, 122 Idaho at 602, 836 P.2d at 548. If an objection would not have been successful, its absence will not constitute ineffective assistance of counsel. Pugsley, supra; State v. Fee, 124 Idaho 170, 176, 857 P.2d 649, 655 (Ct.App.1993). Consequently, to resolve Aspeytia's claim of deficient performance by his attorney, we must examine whether objections to the testimony of Dr. Kraal and Dr. Adrian, if made by Aspeytia's attorney, properly would have been sustained.

1. Dr. Kraal Was Qualified as an Expert Witness

Aspeytia asserts that Dr. Kraal lacked the requisite expertise to present his observations of J.M.'s physical condition and was not qualified to render an opinion as to the significance and meaning of the physical findings. According to Aspeytia, his attorney's failure to object to Dr. Kraal's qualifications as an expert prevented Aspeytia from receiving a fair trial.

The admissibility of Dr. Kraal's testimony is governed by I.R.E. 702, which provides in relevant part:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience training, or education, may testify thereto in the form of an opinion or otherwise.

Foundational testimony regarding Dr. Kraal's training and experience demonstrates that he met the criteria of this rule to provide expert medical testimony. Dr. Kraal is a family practitioner and emergency room physician who first examined J.M. following her report of having been sexually abused. Dr. Kraal was not shown to have specialized training or expertise in the area of child sexual abuse. However, in laying a foundation to qualify Dr. Kraal as an expert witness, the prosecutor established that Dr. Kraal had been licensed to practice medicine for twelve years, had practiced family medicine for five years and for a period of four and one-half years preceding the trial had been an emergency room physician. In the course of his emergency room practice, Dr. Kraal had come into contact with ten to twelve children alleging sexual abuse and had also encountered an unspecified number of cases of child sexual abuse in his practice of family medicine.

Dr. Kraal testified that during the vaginal examination of J.M. he observed small tears of the mucosa that were evidence "of an attempted penetration by some object." He stated that "not really much else that can do that." Dr. Kraal also observed other irritations and injuries to the genital and anal areas that could be caused...