State v. Cannady

• Decision Date: 01 March 2002
• Docket Number: No. 24977.,24977.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Lloyd CANNADY, Defendant-Appellant.
• Court: Idaho Supreme Court

44 P.3d 1122

137 Idaho 67

STATE of Idaho, Plaintiff-Respondent, v. Lloyd CANNADY, Defendant-Appellant.

No. 24977.

Supreme Court of Idaho, Boise, December 2001 Term.

March 1, 2002.

Rehearing Denied April 25, 2002.

Wiebe and Fouser, Canyon County Public Defender; Thomas A. Sullivan, Deputy Public Defender, Nampa, for appellant. Thomas A. Sullivan argued.

Hon. Alan G. Lance, Attorney General; T. Paul Krueger, II, Deputy Attorney General, for respondent. T. Paul Krueger, II, argued.

EISMANN, Justice.

Lloyd Cannady appeals from his conviction for the offenses of lewd conduct with a child under the age of sixteen years and sexual abuse of a child under the age of sixteen years. He challenges the admission into evidence of a book found in his camper and the fixed life sentence imposed for the lewd conduct charge. We affirm his conviction and sentence.

I. FACTS AND PROCEDURAL HISTORY

On February 7, 1994, a Canyon County grand jury indicted the defendant Lloyd Cannady for the crimes of lewd conduct with a child under sixteen years of age and sexual abuse of a child under sixteen years of age. The lewd conduct charge alleged that during the period from December 1, 1993, through January 24, 1994, Cannady touched a ten-year-old girl's genitals with his hand. The sexual abuse charge alleged that during the same time period Cannady touched the girl's breast with his hand and/or mouth. At the time of the alleged offenses, Cannady was 76 to 77 years of age. He pled not guilty to the charges, and his jury trial was held on May 23 and 24, 1994.

During his trial, the State offered into evidence a paperback book entitled The Child Abuse Industry, which was found on January 27, 1994, during a search of Cannady's camper. Cannady objected to the book on the ground that it was irrelevant, immaterial, and had no probative value. The district court overruled that objection and admitted the book into evidence.

The jury found Cannady guilty of both counts, and on August 16, 1994, the district court sentenced him to the custody of the Idaho State Board of Correction for a fixed term of life, plus a fine, court costs, and restitution. The district court later sentenced Cannady to a concurrent term of fifteen years fixed on the sexual abuse charge.¹

Cannady did not timely appeal his conviction and sentence. On March 6, 1997, however, he filed, pro se, a petition for post-conviction relief in which he alleged that his counsel at sentencing² was ineffective for failing to file a direct appeal as Cannady had timely requested him to do. At Cannady's request, the district court appointed counsel to represent him in the post-conviction proceedings. After an evidentiary hearing, the district court found that Cannady's sentencing counsel was ineffective for failing to timely appeal Cannady's sentence. It therefore entered an order reinstating Cannady's right to appeal in this case, but it limited that right to the issue of whether the fixed life sentence was excessive. Cannady timely appealed that order. On August 17, 1998, pursuant to its order in the post-conviction proceedings, the district court also vacated and reissued the judgment entered in this case. Cannady then timely appealed his sentence.

Both appeals were consolidated, and this Court ordered that the appeal would be decided on the briefs without oral argument and assigned it to the Court of Appeals. In his opening brief, Cannady raised two issues:

(1) whether the district court abused its discretion by imposing a fixed life sentence, and

(2) whether the district court erred in restricting the scope of his appeal in this case to the issue of whether the sentence was excessive. In its brief, the State conceded that the district court had erred in restricting the scope of Cannady's appeal. The Court of Appeals agreed, and on June 25, 1999, it reversed that order. It also then suspended this appeal to give Cannady an opportunity to file an amended notice of appeal. Finally, the Court of Appeals rescinded the order assigning this appeal to itself.

On August 6, 1999, Cannady filed an amended notice of appeal in which he stated that he was appealing both his sentence and the admission of evidence. This Court then retained the appeal.

II. ANALYSIS

Cannady contends that the district court committed reversible error in admitting The Child Abuse Industry into evidence because that book was not relevant to any issues in this case. In its response to that issue, the State requests that we overrule State v. Raudebaugh, 124 Idaho 758, 864 P.2d 596 (1993), in which we held that because the relevancy of evidence is not a discretionary matter, we will review the question of relevancy de novo on appeal. The State argues that because the Idaho Rules of Evidence are to be interpreted consistently with the Federal Rules of Evidence and every federal circuit court of appeals reviews relevancy determinations by trial courts under an abuse of discretion standard, we should conform our standard of review to that of the federal appellate courts. The State also argues that a determination of relevancy does not lend itself to a narrow legal formula, but must be decided on a case-by-case basis, which is best done by the trial court.

The State has not convinced us that we should overrule Raudebaugh. Although this Court adopted the Idaho Rules of Evidence in order to obtain uniformity in the trial practice in both the state and federal courts, Chacon v. Sperry Corp., 111 Idaho 270, 723 P.2d 814 (1986), the standard that we apply when reviewing relevancy rulings made by the trial court will not affect the interpretation of any of the rules of evidence. Although relevancy certainly must be decided on a case-by-case basis, the State has not shown why that determination cannot be made on appeal in the same manner as in the trial court. On appeal, the parties can certainly make any arguments regarding relevancy that they could have made in the trial court. If evidence is not relevant, then it should not be admitted. If irrelevant evidence is admitted, then the focus on appeal should be whether or not such error prejudiced the objecting party. Therefore, we decline the State's invitation to overrule Raudebaugh.

The book The Child Abuse Industry is an extensive criticism of what the author calls the "child abuse industry"—the bureaucratic and legal system established to define, investigate, and prosecute allegations of child abuse. In large print on the back cover is the statement, "Last year, over one million North American families were falsely accused of child abuse." The book includes accounts of innocent persons who were wrongly accused of abusing children, whether by neglect, physical abuse, or sexual abuse. On almost every page, various portions of the text had been underlined in either red or blue ink, or both. Many portions of text were further highlighted by additional markings, such as brackets, stars, or notations written in the margins. The highlighted text includes warnings that child sexual abuse is loosely defined; that by including fondling as part of sexual abuse, innocent activities can be prosecuted as child sexual abuse; that children can be easily led to falsely accuse people of sexual abuse; and that every state but Nebraska permits a conviction on the uncorroborated testimony of a child, which should not be sufficient evidence. According to the author, "In real life, sexual abuse and physical abuse leave evidence." This statement had been underlined in blue ink. The author's suggested reforms include changing the definition of child sexual abuse so that "[s]exual abuse is no longer assumed; it must be proven that the contact was sexual." This statement had been highlighted by heavy underlining and by stars drawn in both margins.

The inside front cover of the book had been stamped, "THIS BOOK IS THE PERSONAL PROPERTY OF" followed by the signature "Lloyd J. Cannady." Inside the back cover was printed, "Property of Lloyd John Cannady." Cannady's name was also written in several other places in the book. The district court could reasonably infer that Cannady had read the book and that it was he who made the numerous markings throughout it.

Rule 401 of the Idaho Rules of Evidence defines relevant evidence as any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. State v. Winn, 121 Idaho 850, 828 P.2d 879 (1992). One of the facts of consequence in this case was Cannady's intent. In order to convict Cannady of the lewd conduct charge, the State had to prove that Cannady touched the girl's vaginal area with his hand and that he did so "with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of [Cannady or] such minor child." IDAHO CODE § 18-1508 (1997). In order to convict Cannady of the sexual abuse charge, the state had to prove that Cannady touched the girl's breast with his hand and/or mouth and that he did so "with the intent to gratify the lust, passions, or sexual desire of [Cannady or the] minor child." IDAHO CODE § 18-1506 (1997). On both charges, the State was required to prove that Cannady's touching of the girl was sexual, rather than accidental or innocent.

In this case, all of the alleged sexual abuse involved fondling or kissing. The young girl testified that there were several instances when she and Cannady were in the living room of her mother's home and he touched her breast over her clothing. He did so either with his hand or by kissing her breast. She also stated that once while they were in Cannady's pickup, he touched her breast under her clothing and said that her breasts were growing. The young girl testified that Cannady rubbed her vagina, over her clothing, three times. She said that two of those incidents occurred in the living room of her mother's home and one occurred in...