State v. Cook

• Decision Date: 05 October 2007
• Docket Number: No. 31641.,31641.
• Citation: 144 Idaho 784,171 P.3d 1282
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Guy Michael COOK, Defendant-Appellant.
• Court: Idaho Court of Appeals

171 P.3d 1282

144 Idaho 784

STATE of Idaho, Plaintiff-Respondent, v. Guy Michael COOK, Defendant-Appellant.

No. 31641.

Court of Appeals of Idaho.

October 5, 2007.

Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Rebekah A. Cudé, Deputy Attorney General, Boise, for respondent.

GUTIERREZ, Judge.

Guy Michael Cook appeals from the judgment of conviction entered after a jury found him guilty of statutory rape, delivery of a controlled substance, and possession of a controlled substance. We vacate and remand.

I. FACTS AND PROCEDURE

On July 5, 2004, Cook was arrested and charged with possession of a concealed weapon. The next day, a complaint was filed charging him with the rape of a child under the age of eighteen years, three counts of delivery of methamphetamine, and one count of delivery of methamphetamine in the presence of his children. The two matters were joined, and the Kootenai County Public Defenders Office was appointed to represent Cook.

A search warrant was issued on July 8, 2004, for Cook's father's home, where Cook resided, and officers found methamphetamine residue and drug paraphernalia in various locations in Cook's bedroom. On July 16, a superseding indictment was filed charging Cook with the rape of K.V., a minor, one count of delivery of methamphetamine (alleging the delivery to any or all of five individuals, including the rape victim and two other minors), unlawful possession of a firearm, and possession of methamphetamine.

After Cook pled not guilty to all charges, he filed a motion to sever requesting the rape, gun, and drug charges each be tried separately. The state opposed the motion, but the district court partially granted Cook's motion to sever, severing the gun charge from the rape and drug charges and joining it with a gun charge in a separate case. The trial was rescheduled to November 8.

An amended superseding indictment was filed on November 1, charging Cook with rape of a child under the age of eighteen years, Idaho Code Section 18-6101(1), one count of delivery of methamphetamine (alleging delivery to any or all of five individuals, K.V., Charles Walters, Megan Walters, a minor, Ashley Moore, also a minor, and Arlene Lindsay), I.C. § 37-2732(a), and possession of methamphetamine, I.C. § 37-2732(c). It was alleged that each offense took place at some point between March and July of 2004. The same day this amended indictment was filed, the Kootenai County Public Defender's Office filed a "Notice of Attorney Assignment Change" notifying the court that as of October 30, new counsel within that office was assigned to represent Cook.

On November 4, the date of the rescheduled pretrial conference, Cook's new counsel informed the court he had been assigned to the case because "Mr. Cook had been asking my office for new counsel for some time." The following day, Cook's counsel filed a "Notice of Potential Conflict of Interest" notifying the court that the Kootenai County Public Defender's Office had recently represented or was currently representing numerous of the state's witnesses in Cook's case, including the alleged rape victim and four of the five individuals named in the delivery count. On the first day of trial, prior to the jury being chosen, the potential conflict was addressed when Cook's counsel informed the court that no actual conflict existed, because he had not had any contact with the witnesses listed in the notice and had not seen their case files. He indicated that his motivation for filing the notice had been because "the appearance of impropriety arises" and that Cook's perception of a conflict of interest had clouded his relationship with his former attorney. The court afforded Cook the opportunity to consult with his counsel regarding the conflict of interest issue, consent to move for a continuance, and outstanding plea offers. After meeting with his client, counsel informed the court that Cook "directed me to go forward today."

Thereafter, the jury was chosen and the court took up the state's motions for leave to introduce evidence pursuant to Idaho Rule of Evidence 404(b), for which it had provided notice on November 4, 2004, and Cook's request to introduce evidence pursuant to I.R.E. 412 that K.V. had made false accusations of rape against several other men. The court deferred ruling on Cook's Rule 412 motion and granted the state's request, over Cook's objection, to introduce evidence that Cook had provided two minors, Amber and Ashley Moore, methamphetamine on one occasion in 2003.

The jury found Cook guilty of the rape of a child under the age of eighteen years, delivery of methamphetamine (unanimously agreeing that Cook delivered the drug to K.V., Megan, and Charles), and possession of methamphetamine. A judgment of conviction was entered in accordance with the verdict, and this appeal followed.

II. ANALYSIS

A. Admission of Rule 404(b) Evidence

On November 3, 2004, the state filed a notice of its intent to introduce I.R.E. 404(b) evidence—specifically, evidence that Cook had given "methamphetamine to Ashley Moore and Amber Moore [both minors at the time] in an apartment . . . in Coeur d'Alene, Idaho, in 2003, as reflected in the testimony of Ashley Moore and Amber Moore at the Grand Jury Indictment of the defendant." Over Cook's objections that the testimony was too remote in time to be relevant, not relevant to an issue other than propensity, more prejudicial than probative, and that the required notice was untimely, the district court admitted the evidence, deciding it was relevant as to motive, plan, and intent, and that there had been no prejudice as a result of the non-conforming notice. The district court also found that the probative value of the evidence was not substantially outweighed by unfair prejudice and noted that it would permit its admission with a cautionary instruction.

At trial, Ashley Moore, who was sixteen at the time, testified that approximately one and one-half years prior to trial, in 2003, Cook provided her and her sister Amber methamphetamine in an apartment behind a grocery store in Coeur d'Alene where they had both smoked it.¹ Later, Amber, who was fourteen at the time of trial, testified that she had smoked methamphetamine for the first time during the incident at the apartment, that Cook was present, but that she could not remember who had provided the drugs.

Rule 404(b) disallows the admission of evidence of other crimes, wrongs, or acts to prove a defendant's criminal propensity.² See State v. Needs, 99 Idaho 883, 892, 591 P.2d 130, 139 (1979); State v. Winkler, 112 Idaho 917, 919, 736 P.2d 1371, 1373 (Ct.App. 1987). However, such evidence may be admissible for a purpose other than that prohibited by the rule, such as to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or the absence of mistake. I.R.E. 404(b); State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct.App.2002).

This Court applies a two-pronged analysis to determine the admissibility of evidence of prior bad acts. First, the evidence must be relevant to a material disputed issue concerning the crime charged, other than propensity. State v. Moore, 120 Idaho 743, 745, 819 P.2d 1143, 1145 (1991); State v. Medina, 128 Idaho 19, 24, 909 P.2d 637, 642 (Ct.App.1996). "Relevant" evidence means evidence having a 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. I.R.E. 401. Whether evidence is relevant is an issue of law and therefore, it is a determination over which we exercise free review. State v. Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 (Ct.App.1993). The second step in the analysis is the determination of whether the probative value of the evidence is substantially outweighed by unfair prejudice. Id. When reviewing this step we apply an abuse of discretion standard. State v. Enno, 119 Idaho 392, 406, 807 P.2d 610, 624 (1991); State v. Clark, 115 Idaho 1056, 1059, 772 P.2d 263, 266 (Ct.App. 1989).

Thus, our first inquiry encompasses whether evidence that Cook had supplied two minors methamphetamine, more than one year prior to the incidents he was actually charged with in the present case, is relevant for a purpose other than propensity. When admitting the evidence, the lower court indicated its belief that the testimony was relevant to motive, plan, and intent. In its brief to this Court, the state argues the evidence is relevant to prove Cook's actions were not the result of mistake or accident as well as probative of his knowledge of and access to methamphetamine and intent to provide the drug to minors and to smoke it with them.

We find no merit in the rationales used to justify admission of the two girls' testimony. Cook's intent was not genuinely at issue in this case. In State v. Stoddard, 105 Idaho 533, 537, 670 P.2d 1318, 1322 (Ct.App.1983), this Court discussed whether Rule 404(b) evidence that the defendant had previously stolen a vehicle was admissible to prove intent in a case where he had been charged with stealing a different automobile. In holding the evidence inadmissible for this purpose, we noted it was the type of case where the act charged against the defendant itself characterizes the offense; thus, guilty intent was proven by proving the act, and evidence of other crimes was not necessary or admissible to establish the accused's intent. We cited Fallen v. United States, 220 F.2d 946 (5th Cir.1955), where the court therein stated that if the defendant had in fact altered the serial numbers on two cars, there was "no real question of his criminal intent" in disposing of them on the black market. Stoddard, 105 Idaho at 537, 670 P.2d at 1322. See also State v. Alsanea, 138 Idaho 733, 740, 69 P.3d 153, 160 (Ct.App. 2003) (citing Stoddard in...