State v. Brown

• Citation: 131 Idaho 61,951 P.2d 1288
• Decision Date: 02 January 1998
• Docket Number: No. 22542,22542
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Alan Travis BROWN, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1288

951 P.2d 1288

131 Idaho 61

STATE of Idaho, Plaintiff-Respondent, v. Alan Travis BROWN, Defendant-Appellant.

No. 22542.

Court of Appeals of Idaho.

Jan. 2, 1998.

Scott L. Rose, Post Falls, for defendant-appellant.

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

LANSING, Chief Judge.

Alan Travis Brown appeals from his judgment of conviction entered after a jury found him guilty of lewd conduct with a minor and sexual abuse of a child. He contends that the court made errors in the admission and exclusion of evidence, that the prosecutor engaged in misconduct during closing argument, that the evidence does not support the jury's findings, and that in sentencing Brown the trial court penalized him for exercising his right to a trial.

FACTS AND PROCEDURAL BACKGROUND

According to evidence presented by the State at trial, Brown first met the fifteen-year-old female victim, H.M., at a party on Sunday, July 30, 1994. H.M. had just run away from home. Brown provided drugs and alcohol to H.M. at the party. Over the next several days, H.M. and Brown remained together off and on, staying at a motel and at various residences in the Coeur d'Alene area. During this period Brown continued to give H.M. drugs and alcohol. On the following Friday, a private investigator located H.M. and returned her to her mother.

The next day, H.M.'s mother drove H.M. to Boise and placed her in an in-patient drug and alcohol treatment facility. Approximately one month later, in the course of treatment, H.M. asserted that Brown had raped her. A criminal complaint was filed against Brown on December 2, 1994, charging him with nine counts of rape, I.C. § 18-6101, and two counts of lewd conduct with a minor, I.C. § 18-1508.

The jury acquitted Brown of the nine rape charges but found him guilty of four counts of the included offense of lewd conduct with a minor and three counts of the lesser included offense of sexual abuse of a child. For each of the lewd conduct offenses, the court imposed a unified fifteen-year sentence with a determinate term of seven years. On the sexual abuse counts, Brown was given unified ten-year sentences with seven-year determinate terms. It was ordered that the sentences run concurrently.

ANALYSIS

A. Admission of Panties and Scientific Test Results

The first issue raised by Brown on appeal is whether the district court erred in admitting into evidence a pair of green panties, allegedly worn during the time the victim was with Brown, and the lab reports showing that the panties tested positive for the presence of semen. Brown argues that an inadequate foundation was laid for this evidence, that the evidence was irrelevant and more prejudicial than probative, and that it should have been excluded due to the prosecutor's failure to make a timely disclosure of this evidence in discovery responses.

1. Foundation

With respect to the foundation issue, Brown asserts that the State could not establish an adequate chain of custody of the clothing, and consequently it could not be determined that the evidence was free from tampering.

At trial, H.M.'s mother testified that upon returning home after taking H.M. to Boise for treatment, and being already suspicious that H.M. had been sexually molested, she gathered up some of the clothes on the floor of H.M.'s bedroom and placed them in a paper bag. She then placed the clothes in the trunk of her car, where they remained for several days. The items were then transferred to a storage unit and remained there until they were turned over to police in December of 1994. These items were subsequently subjected to laboratory testing, which identified a small amount of semen on a pair of green panties. At trial, H.M. testified that she had borrowed the green panties from a friend during the time when she was with Brown and that she was wearing them when she was brought home by the private investigator. She said they appeared to have been freshly laundered when she borrowed them. She left the panties on her bedroom floor along with other clothing removed that evening. H.M.'s mother testified she observed the clothing that H.M. had dropped on the floor that Friday night, and when she gathered up the clothing on the following Monday or Tuesday, it appeared to be in the same condition.

Brown contends that H.M.'s testimony about the panties was unreliable because she had made numerous inconsistent statements about the clothing she wore during the run-away period, and that it is impossible to determine whether the clothing was in the same condition when tested as it was on the day of H.M.'s return. He argues that the clothing was not secure from tampering, particularly during the few days when H.M.'s mother was away in Boise and other members of the household had access to the clothing.

In a criminal action, physical evidence of this nature must be shown to be in substantially the same condition when offered as it was when the crime was committed. State v. Griffith, 94 Idaho 76, 81, 481 P.2d 34, 39 (1971); State v. Kodesh, 122 Idaho 756, 757, 838 P.2d 885, 886 (Ct.App.1992). The article need not be in precisely the same condition at the time of trial as at the time when it played a role in the occurrence of the alleged offense, but if its condition has changed, the change must not have been made for unjustifiable purposes and it must not be of sufficient magnitude that the exhibit will mislead. Griffith, supra. It is not necessary that the party offering the exhibit exclude all possibility of tampering. Rather, the standard for admission of the evidence is whether the trial court is satisfied that, in all reasonable probability, the exhibit has not been changed in any material respect. State v. Crook, 98 Idaho 383, 384, 565 P.2d 576, 577 (1977); State v. Vierra, 125 Idaho 465, 469, 872 P.2d 728, 732 (Ct.App.1994); State v. Sena, 106 Idaho 25, 674 P.2d 454 (Ct.App.1983). This determination falls within the sound discretion of the trial court. State v. Hagedorn, 129 Idaho 155, 161, 922 P.2d 1081, 1087 (Ct.App.1996); Kodesh, 122 Idaho at 757, 838 P.2d at 886. We review this determination for an abuse of discretion. State v. Wilson, 120 Idaho 643, 646, 818 P.2d 347, 350 (Ct.App.1991).

In this case, there was sufficient evidence upon which the district court could determine that the panties probably were worn by H.M. while she was a runaway and had not been altered in any material respect. Although people may have had access to the clothing before H.M.'s mother gathered it from the bedroom floor, there was no evidence which would raise suspicion that the clothes had been tampered with. Accordingly, we find no error in the district court's admission of the panties over Brown's objection that the foundation was inadequate.

2. Relevance

Brown also objected that neither the panties nor the test result finding traces of A similar contention was presented in State v. Roles, 122 Idaho 138, 832 P.2d 311 (Ct.App.1992). In that case, the State charged that the defendant had used certain objects to forcibly penetrate the victim during the course of a rape. The two objects tested positive for blood, but the amount of blood was insufficient to conduct blood-group testing or even to allow the State's forensic expert to conclude that the blood was from a human. This Court held that the prosecution's inability to trace the blood to a particular individual or even a particular species did not make it irrelevant. It was held that the lack of more specific identification went to the weight of the evidence and not its admissibility. Id. at 148, 832 P.2d at 321.

semen was relevant. The tests did not indicate whether the semen was from Brown because there was an insufficient amount present to determine genetic markers. According to Brown, the State's inability to scientifically link the semen to him rendered the evidence entirely irrelevant. This argument is without merit.

Similarly here, the presence of semen, though not conclusive evidence of Brown's guilt, tended to corroborate H.M.'s allegations that she had been subjected to multiple incidents of sexual molestation. The evidence had a "tendency to make the existence of [a] fact that [was] of consequence to the determination of the action more probable." See I.R.E. 401. Therefore, the trial court properly overruled Brown's relevancy objection.

3. Probative value versus unfair prejudice

Closely tied to the other arguments regarding the clothes is Brown's assertion that the clothing and test results should have been excluded from evidence under I.R.E. 403 because they were more prejudicial than probative. Brown argues that the probative value of the evidence, which was greatly diminished because it could not be tied to him and because of the lack of a secure chain of custody, was outweighed by its prejudicial impact.

Idaho Rule of Evidence 403 authorizes the trial court to exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice." A lower court's determination whether to exclude evidence under this rule will not be disturbed on appeal unless it is shown to be an abuse of discretion. State v. Enno, 119 Idaho 392, 406, 807 P.2d 610, 624 (1991); State v. Birkla, 126 Idaho 498, 500, 887 P.2d 43, 45 (Ct.App.1994); State v. Clark, 115 Idaho 1056, 1059, 772 P.2d 263, 266 (Ct.App.1989).

As we said in State v. Floyd, 125 Idaho 651, 654, 873 P.2d 905, 908 (Ct.App.1994), "Rule 403 does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to the party's case. The rule protects against evidence that is unfairly prejudicial, that is, if it tends to suggest a decision on an improper basis." In this case, Brown's arguments regarding the lack of a specific scientific test connecting him to the semen and the imperfect chain of custody all go to the weight of the evidence and may...