State v. Byington, 23273

Decision Date29 May 1998
Docket NumberNo. 23273,23273
Citation132 Idaho 597,977 P.2d 211
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Daryl R. BYINGTON, Defendant-Appellant.
CourtIdaho Court of Appeals

The Roark Law Firm, Hailey, for defendant-appellant. D. Doug Nelson argued.

Alan G. Lance, Attorney General; Catherine O. Derden, Deputy Attorney General, Boise, for plaintiff-respondent. Catherine O. Derden argued.

PERRY, Judge.

Daryl R. Byington was found guilty by a jury of two counts of sexual abuse of a child under the age of sixteen years. I.C. § 18-1506. On appeal, Byington raises several claims for relief. For the reasons set forth below, we affirm.

I. BACKGROUND

A neighbor observed Byington playing in his backyard with children, particularly female children ages nine to eleven, in what the neighbor thought was an inappropriate manner. The neighbor contacted the authorities and an investigation ensued. Officers executed a search warrant of Byington's residence and seized numerous magazines, videotapes Byington was charged with three counts of disseminating harmful material to a minor. I.C. § 18-1515(1)(a). These charges were not joined in this case. Byington was also indicted on four counts of sexual abuse of a child under the age of sixteen based on statements from several of the children who played at Byington's residence. Byington moved to suppress the evidence seized, based on the argument that officer Riemann's affidavit, which supported the issuance of the search warrant, contained numerous false statements, omitted exculpatory information and therefore lacked probable cause. The district court denied the motion following an extensive Franks 1 hearing. Byington also moved in limine to exclude evidence of "all videotapes, books, magazines, catalogues, newspapers, photographs, negatives, clothing, bottle rockets and other items seized from Defendant's residence and any and all references thereto." The district court reserved its ruling on Byington's motion in limine. This evidence was ultimately admitted at trial over Byington's objection.

books, catalogs and pictures in Byington's bedroom. The officers also seized some children's clothing, including undergarments, which were in Byington's closet.

Byington's trial began on Tuesday, April 9, 1996. After the first day of trial, the prosecutor was contacted by Maia Black, Byington's twenty-year-old step-niece who disclosed that she had been sexually abused by Byington when she was a child. The prosecutor proceeded to make arrangements to fly Black to Idaho in order for her to testify at Byington's trial. The prosecutor also contacted Byington's counsel and notified her of Black's name and that she lived in Oakland, California. Black arrived in Blaine County on Wednesday, April 10, 1996. On Thursday, April 11, the state made an offer of proof of Black's testimony. Byington objected on several grounds. The district court continued the proceedings until the following morning. On Friday, April 12, the district court ruled that Black's testimony was admissible. However, the district court granted Byington a continuance until the following Monday, with respect to Black's testimony only, so that Byington's counsel could have the weekend to prepare for Black's testimony.

On Monday, April 15, Byington's counsel requested another continuance, arguing that she needed additional time to conduct her investigation. The district court denied the motion, and Black testified later that morning.

After a two-week trial, the jury found Byington guilty of two counts of sexual abuse of a child and acquitted him of the third count. 2 The district court sentenced Byington to a fixed three-year term of incarceration on the first count. On the second count, the district court imposed a consecutive unified sentence of fifteen years with three years fixed. Byington appealed.

II. DISCUSSION
A. Probable Cause for Search Warrant

Byington alleges that officer Riemann's affidavit, which supported the issuance of the search warrant, contained numerous false statements and omitted exculpatory information. Byington contends that officer Riemann either purposely made those false statements or that the officer's failure to properly document interviews and other information rose "to the level of reckless disregard for the truth of the information presented."

In State v. Rigoulot, 123 Idaho 267, 846 P.2d 918 (Ct.App.1992), this Court set forth the following standard for challenges to a search warrant:

When a defendant challenges a warrant with the assertion that it was procured with false information, he must show by a preponderance of the evidence that the false information was included in the warrant affidavit knowingly and intentionally, or with reckless disregard for the truth. This rule also applies to relevant information allegedly wrongly omitted with the When, in response to a motion to suppress, a district court has ruled that "mere negligent representations" were made in support of a search warrant issued by a magistrate, and the district court's findings are supported by substantial, albeit conflicting, evidence, they will not be disturbed on appeal. Whether false statements or omissions are intentional or reckless is a factual finding reviewed under the clearly erroneous standard.

intent to mislead the magistrate. However, negligent or innocent misrepresentations, even if necessary to establish probable cause, will not invalidate a warrant. If information is presented to the magistrate negligently or innocently, the information must be included in the court's consideration of the totality of the circumstances in determining whether the magistrate had a substantial basis to find probable cause. On the other hand, if false information was given intentionally or with reckless disregard for the truth, it must be set aside and the magistrate's finding of probable cause must be reviewed upon the remaining evidence.

Rigoulot, 123 Idaho at 270-71, 846 P.2d at 921-22 (citations omitted).

The district court provided the following analysis in its order denying Byington's suppression motion:

6. The probable cause in support of the search warrant was obtained pursuant to a number of interviews with the alleged victims and/or witnesses. The affidavit recites probable cause to support at least two separate crimes, one relative to the sexual abuse of a minor under sixteen, and the other relative to the dissemination of material harmful to minors. If the court were to disregard all of the representations made in the affidavit of probable cause except those representations related solely to the dissemination of the harmful materials, those representations, standing alone, would support a finding of probable cause to support the issuance of the search warrant. Specifically, Riemann states in the affidavit, paragraph 11:

T.W. told me that Daryl Byington sometime during the summer months of 1995, showed T.W. and J.R. X-rated video tapes that had X's on them. T.W. named the movies as "Perfect girls", "Wet Nurses", Nudist Camp movies, and a movie with muscle men having sex. T.W. said that the movies depicted naked adults having sexual intercourse. T.W. said that there were several movies in Daryl Byington's bedroom, which is where she and J.R. watched them.

Riemann obtained this information from an interview he conducted with [T.W.] on October 19, 1995, prior to the issuance of the search warrant. A transcript of the interview is State's exhibit 2 A. In the transcript from the interview, pages 9 and 10, [T.W.] states that although she and [J.R.] started to watch the video tape, Byington let the girls watch the tape. [T.W.] also stated that the tape was rated "X" and "about people having sex." [T.W.] stated further that Byington was present while the girls watched the video.

7. Riemann does not expressly represent in the affidavit that [T.W.] provided him with the names of the movies. Riemann testified at the suppression hearing that some of the information he obtained was from Trina Fisher who also interviewed [T.W.]. Fisher works for the State of Idaho, Department of Health and Welfare, as a Social Worker, and was part of the child abuse team assembled by Riemann for conducting interviews with the minor children involved in this case. Fisher interviewed [T.W.] once with Riemann on October 19, 1995, and once with Sergeant Ron Taylor on October 20, 1995. A transcript of this second interview is State's exhibit 4. During the second interview, [T.W.] stated the names of the videos to the best of her recollection. [T.W] also stated that Daryl showed her the movies. State[']s exhibit 4, page 1. Further, [T.W.] stated that Byington described the movies as a "porno" and that Byington put the video tape in the VCR. State[']s exhibit 4, page 3.

8. Although the affidavit does not expressly state that [T.W.] conveyed the names of the videos to Riemann personally, such an inference can be drawn from 9. Idaho Code § 18-1515 states in relevant part (with emphasis):

the way the paragraph 11 of the affidavit is worded. However, the fact that the affidavit does not state that Riemann learned the information from Fisher is not material. First, the names of the videos are not necessary to the establishment of probable cause. Next, in applying a "totality of circumstances" standard, this is not a case where Riemann was relying on hearsay from a confidential informant. Rather, Riemann obtained the information from Trina Fisher who was a member of the investigation team which Riemann personally assembled for purposes of conducting interviews. Therefore, this Court finds that the failure to disclose Trina Fisher[']s name amounts to nothing more than an innocent mistake. The issue in this case is the reliability of the substantive information contained in the affidavit. Simply put, if Riemann had included that he had obtained the names of the videos from a member of his investigation team, the basis for probable...

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