State v. Cross

• Decision Date: 29 April 1999
• Docket Number: No. 23593,23593
• Citation: 978 P.2d 227,132 Idaho 667
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Oscar Ronald CROSS, Defendant-Appellant. Boise, November 1998 Term
• Court: Idaho Supreme Court

Page 227

978 P.2d 227

STATE of Idaho, Plaintiff-Respondent, v. Oscar Ronald CROSS, Defendant-Appellant.

No. 23593.

Supreme Court of Idaho,

Boise, November 1998 Term.

April 29, 1999.

George P. Essma, Chtd., Twin Falls, for appellant. George P. Essma argued.

Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

TROUT, Chief Justice.

A jury convicted Oscar R. Cross (Cross) on two counts of Lewd and Lascivious Conduct with a Minor under Sixteen, one count of Sexual Battery on a Minor Child Sixteen or Seventeen Years of Age, and one count of Sexual Abuse of a Child under the Age of Sixteen. The trial court sentenced Cross to life in prison without the possibility of parole. Cross brings this appeal arguing that the trial court erred by (1) allowing the jury to hear preliminary hearing testimony of a witness not present at trial, (2) admitting evidence of Cross' prior bad acts, and (3) imposing an excessive sentence.

I. FACTUAL AND PROCEDURAL HISTORY

The jury convicted Cross for twice having sexual intercourse with his minor daughter, B.C. and for soliciting B.C. and her minor boyfriend, J.R., to have sexual intercourse as he watched. These events occurred over a two day period between May 23 and May 24, 1995, when B.C. was fifteen and J.R. was sixteen.

Cross was first charged shortly after these incidents. J.R. testified at Cross' initial preliminary hearing held June 8, 1995. For reasons not found in the record, the state dismissed the initial case. Subsequently, the prosecution filed a second criminal complaint on January 8, 1996. Some time prior to trial, J.R. moved out of state. The prosecution sent J.R. a subpoena requesting him to testify at trial, the receipt of which was acknowledged by J.R.; however, he failed to appear at trial. Disclosing J.R.'s absence midway through trial, the State filed a motion in limine seeking to introduce J.R.'s preliminary hearing testimony. Over Cross' objection, the trial court granted the motion and allowed the prosecution to present a recording of J.R.'s preliminary hearing testimony for the jury.

B.C. testified extensively at Cross' trial. On direct examination she testified as to the events that led to the charges. Specifically, she described the two occasions when Cross had sexual intercourse with her and the evening when Cross convinced her and J.R. to have intercourse. Over an objection, the trial court allowed the prosecution on redirect to question B.C. about prior, uncharged misconduct involving Cross. B.C. testified that Cross had been sexually abusing her for a A jury convicted Cross. Before sentencing, the trial court ordered a psychological examination of Cross. On December 10, 1996, the trial court sentenced Cross to life in prison without the possibility of parole for each count of Lewd Conduct with a Minor. The trial court also sentenced Cross to ten years each for Sexual Battery of a Child and Sexual Abuse of a Minor. All sentences run concurrently.

year and a half prior to the events in question.

II. DISCUSSION

A. Preliminary Hearing Testimony

Cross argues that the trial court erred in admitting the J.R.'s preliminary hearing testimony. When objecting to the admission of the preliminary hearing testimony below, Cross did not set forth a specific basis for his objection as required by I.R.E. 103(a)(1) ¹. Nonetheless, Cross' objection appears to be based upon I.C. § 9-336. ² Cross argued that (1) the state failed to establish that J.R. was unavailable to testify at trial, (2) that J.R.'s preliminary hearing testimony was not more probative than other evidence presented at trial, and (3) that he did not have a full and fair opportunity to cross-examine J.R. at the preliminary hearing. Idaho Code § 9-336 provides:

Before admitting into evidence recorded testimony from a preliminary hearing, the court must find that the testimony offered is:

1. Offered as evidence of a material fact and that the testimony is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and

2. That the witness is, after diligent and good faith attempts to locate, unavailable for the hearing; and

3. That at the preliminary hearing, the party against whom the admission of the testimony is sought had an adequate opportunity to prepare and cross-examine the proffered testimony.

I.C. § 9-336. To determine the admissibility of preliminary hearing testimony under I.C. § 9-336, a trial court must make factual findings as to the three requirements. Unless clearly erroneous, this Court will not disturb those findings. See State v. Ricks, 122 Idaho 856, 863, 840 P.2d 400, 407 (Ct.App.1992).

Because the prosecution waited until midway through the trial to announce that it was having problems finding J.R., Cross argues that the trial court erred when finding J.R. unavailable. Before admitting preliminary hearing testimony, a court must find the witness unavailable after "diligent and good faith efforts to locate." I.C. § 9-336(2). The record reflects that the prosecution found and mailed a subpoena to J.R. in California pursuant to I.C. § 19-3007A and that J.R. acknowledged receipt. The prosecution then lost contact with J.R. and after repeated attempts was unable to obtain his presence for trial. Given the fact that J.R. was known to be in California, the State should have used the procedure set forth in I.C. § 19-3005(2) ³ when attempting to secure his attendance.

Because the State made no such effort and chose, instead, to rely on merely mailing the subpoena, the State failed to use diligent and good faith efforts to locate J.R. and secure his presence at trial. Consequently, the trial court's finding of unavailability was clearly erroneous, and the court erred in admitting J.R.'s preliminary hearing testimony.

The next question we must answer is whether this error requires reversal. Idaho Criminal Rule 52 provides: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." I.C.R. 52. To determine whether the error affected Cross' substantial rights or was harmless, we ask whether it appears, beyond a reasonable doubt, that there was no reasonable possibility that the error contributed to his conviction. See State v. Roy, 127 Idaho 228, 231, 899 P.2d 441, 444 (1995).

Cross was convicted on two counts of Lewd and Lascivious Conduct and one count of Sexual Battery on a Minor. The relevant portion of J.R.'s preliminary hearing testimony related only to events giving rise to the Sexual Battery charge. At trial, B.C. provided a nearly identical account of those events in which she, indeed, participated. Cross even argues on appeal that the trial court should have excluded the testimony as needlessly cumulative under I.R.E. 403. In light of the limited scope of J.R.'s testimony and the strength of B.C.'s, we find the error harmless.

B. Prior Uncharged Misconduct

Cross argues that the trial court erred in admitting evidence of his prior uncharged misconduct. Specifically, the trial court allowed B.C. to testify that Cross had been sexually abusing her for more than a year prior to his arrest. B.C. also read from a written statement that included the following:

My dad has been having sexual intercourse with me for 1 1/2 years and ever since I was 14 yrs old I am 15 1/2 now It started when we were living in Oregon in Juntura and it also happened in McGill NV. and he made me have oral sex with him in Bliss.

The trial court reasoned that because Cross attacked B.C.'s credibility, calling into question her inability to remember specific dates and times of the charged conduct, evidence of Cross' prior, uncharged misconduct was admissible under I.R.E. 404(b). The testimony was relevant to corroborate B.C.'s account and to explain why she could not remember specific dates and times. The trial court also found the testimony relevant to prove intent, motive, opportunity, and common plan or scheme.

To determine the admissibility of evidence of prior uncharged misconduct, a trial court must engage in a two-tiered analysis, inquiring (1) whether the evidence is relevant to an issue other than character, guilt, or propensity, and (2) whether under I.R.E. 403 the probative value of that evidence is substantially outweighed by the danger of unfair prejudice to the defendant. State v. Moore, 120 Idaho 743, 745, 819 P.2d 1143, 1145 (1991). This Court exercises free review over a trial court's determination of the testimony's relevance because relevancy is neither a factual issue nor a matter of judicial discretion. See State v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993). The determination of whether the risk of unfair prejudice substantially outweighs the probative value of the evidence is within the discretion of the trial court. State v. Porter, 130 Idaho 772, 784, 948 P.2d 127, 139 (1997). Consequently, this Court reviews a trial court's I.R.E. 403 determination under the three-step abuse of discretion standard set forth above.

This Court has found that corroborating evidence is especially relevant in sex crime cases involving minor victims. See, e.g., State v. Moore, 120 Idaho 743, 745, 819 P.2d 1143, 1145 (1991); State v. Tolman, 121 Idaho 899, 904, 828 P.2d 1304, 1309 (1992). By the nature of the crime charged, there are Here, evidence of Cross' history of sexually abusing B.C. is relevant to B.C.'s credibility. Cross called B.C.'s credibility into question on cross-examination by criticizing her inability to remember specific times and dates relating to the charged conduct. Cross inferred B.C. would have a better memory of the events if the conduct charged actually occurred. Evidence suggesting that sexual abuse was commonplace in Cross' relationship with B.C. tends to explain why B.C.'s memory concerning two specific events was not as clear as if Cross had...