State v. Dopp

• Decision Date: 04 December 1996
• Docket Number: No. 21863,21863
• Parties: STATE of Idaho, Plaintiff-Respondent-Cross Appellant, v. Sidney David DOPP, Defendant-Appellant-Cross Respondent.
• Court: Idaho Court of Appeals

Page 1039

930 P.2d 1039

129 Idaho 597

STATE of Idaho, Plaintiff-Respondent-Cross Appellant, v. Sidney David DOPP, Defendant-Appellant-Cross Respondent.

No. 21863.

Court of Appeals of Idaho.

Dec. 4, 1996.

Grover & Archibald, Rigby, for defendant-appellant-cross respondent. R. James Archibald, argued.

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

LANSING, Judge.

After a jury trial, Sidney David Dopp was convicted of battery with intent to commit rape and was sentenced to a fixed term of ten years' incarceration. Dopp now appeals the conviction, alleging that there were a number of errors during the course of his trial that require reversal of the judgment. Dopp also asserts that he received ineffective assistance of counsel. He challenges, as well, the sentence imposed by the trial court. We affirm.

I. FACTS

On April 21, 1989, Dopp, while wearing only a shirt, attacked twenty-two-year old Tami Zervas as she was walking down the sidewalk on the street near her home. He struck her, knocked her down, pulled on her clothing and attempted to drag her into a nearby residence. When Ms. Zervas's husband came running to her aid, Dopp fled to another home, the residence of Mr. and Mrs. Baird. When Mrs. Baird answered Dopp's knock, he forced his way into her house. A struggle ensued between Dopp and Mr. Baird. In the course of the fight, Mr. Baird struck Dopp at or near the base of the skull with the butt of a shotgun. The Bairds were able to escape to the home of a neighbor where they called the police.

As a consequence of his attack on Ms. Zervas, Dopp was charged with battery with intent to commit rape, I.C. § 18-903, -911. In three other cases he was charged with other crimes, including aggravated battery stemming from his attack on the Bairds. Dopp entered into a plea agreement with the State in which he pleaded guilty to charges brought in all four criminal cases. Subsequently, the district court denied a motion by Dopp to withdraw the guilty pleas in the four cases, and this Court affirmed that denial on appeal. State v. Dopp, 124 Idaho 512, 861 P.2d 82 (Ct.App.1992). The Idaho Supreme Court, however, reversed the denial of Dopp's motion to withdraw his guilty pleas in two of the cases, including the present case stemming from his attack on Ms. Zervas. State v. Dopp, 124 Idaho 481, 861 P.2d 51 (1993). On remand Dopp proceeded to trial on the charge of battering Ms. Zervas with intent to commit rape, was found guilty by the jury and was sentenced to a ten-year determinate term of imprisonment.

II. ISSUES

On appeal, Dopp raises numerous issues which we have consolidated as follows. Dopp argues that the trial court erred by (1) admitting at trial evidence of other offenses (the Baird incident) committed by Dopp on the night of the battery; (2) failing to rule prior to trial on Dopp's motion in limine to exclude this evidence; (3) failing to give a limiting instruction to the jury about the purpose of the evidence contemporaneously with the admission of testimony regarding the Baird incident; (4) failing to declare a mistrial or to grant a new trial based upon the foregoing alleged errors; and (5) failing to grant a new trial on grounds that new material evidence had been discovered and exculpatory evidence had been destroyed by the State. Dopp also contends the he was denied effective assistance of counsel at trial and at sentencing and that the sentence imposed was excessive.

III. ANALYSIS

A. Issues Regarding the Baird Incident.

With respect to testimony concerning the happenings at the Baird residence following Dopp's attack on Ms. Zervas, Dopp asserts that: (1) the admission of this evidence violated I.R.E. 404(b); (2) the trial court's failure to rule on Dopp's motion in limine to exclude this testimony prior to trial was grounds for a mistrial; and (3) the trial court's failure to give a cautionary instruction regarding this testimony contemporaneously with its admission was error and created grounds for a new trial.

1. The trial court did not err in admitting evidence of the occurrence at the Baird residence.

Dopp contends that because the events that occurred at the Baird residence involved misconduct other than that for which he was being tried, admission of the evidence violated Idaho Rule of Evidence 404(b). ¹ Under that rule, evidence of other crimes or wrongs is inadmissible for the purpose of showing a person's character or propensity to commit crimes. State v. Vierra, 125 Idaho 465, 471, 872 P.2d 728, 734 (Ct.App.1994); State v. Guinn, 114 Idaho 30, 34, 752 P.2d 632, 636 (Ct.App.1988). However, evidence of such acts may be admissible if relevant for other purposes. I.R.E. 404(b); State v. Atkinson, 124 Idaho 816, 818, 864 P.2d 654, 656 (Ct.App.1993), cert. denied, 511 U.S. 1076, 114 S.Ct. 1659, 128 L.Ed.2d 376 (1994). In responding to an objection to such evidence, the trial court must engage in a two-step analysis. The court must first determine whether the evidence is relevant to a material and disputed issue concerning the crime charged, other than propensity. State v. Moore, 120 Idaho 743, 745, 819 P.2d 1143, 1145 (1991); Atkinson, supra. Whether evidence is relevant is an issue of law, and we therefore exercise free review of the trial court's relevancy determination under I.R.E. 404(b). State v. Tapia, 127 Idaho 249, 254, 899 P.2d 959, 964 (1995); State v. Raudebaugh, 124 Idaho 758, 864 P.2d 596 (1993); Atkinson, 124 Idaho at 818-19, 864 P.2d at 656-57. If the evidence is deemed relevant, the court must then determine whether its probative value substantially outweighs the danger of unfair prejudice to the defendant. I.R.E. 403; Moore, 120 Idaho at 745, 819 P.2d at 1145; Atkinson, supra. We use an abuse of discretion standard when reviewing this determination. Tapia, supra; Atkinson, supra.

The parties' arguments regarding the relevance of the Baird incident focused upon the specific intent element of battery with intent to commit rape, the crime with which Dopp was charged. Dopp's counsel acknowledged that the defense was pursuing a theory that Dopp was incapable of forming a specific intent to rape Ms. Zervas because he was at the time heavily intoxicated from the use of alcohol and cocaine. In his opening statement to the jury, defense counsel had alluded to anticipated testimony that Dopp was found by officers sitting on the curb in an alcohol and drug-induced stupor. In order to counter Dopp's theory, the State sought to present evidence of the events at the Baird residence to show that Dopp was not then dazed and that his subsequent dazed demeanor resulted not from his drug and alcohol use but from having been struck at the base of his skull with the butt of Mr. Baird's gun. The trial court held that evidence of Dopp's behavior and appearance just minutes after the attack on Ms. Zervas was relevant to the issue of Dopp's ability to form an intent on that occasion. The court also concluded that the probative value of the evidence was not outweighed by its prejudicial impact.

We agree with the district court's determination that the evidence was relevant. In order to prove Dopp's guilt of the charged offense, the State bore the burden to show that he harbored the specific intent to rape the victim. Evidence bearing upon his capacity to form such a specific intent was therefore relevant to a material issue, particularly in light of Dopp's intoxication-based defense. We also discern no abuse of discretion in the trial court's determination that the prejudicial effect of this evidence did not outweigh its probative value. Accordingly, we affirm the trial court's denial of Dopp's motion in limine to exclude this evidence, and we uphold the court's decisions overruling Dopp's objections to the evidence at trial.

2. The court's delay in ruling upon Dopp's motion in limine was not grounds for mistrial or a new trial.

Dopp's motion in limine to exclude testimony concerning the Baird incident was filed before trial and was discussed at a pre-trial conference, but a decision on the motion was deferred because Dopp was not personally present. Apparently, the court instructed the parties to refrain from discussing this incident in either jury voir dire or opening statement until such time as a ruling was made. In a subsequent pre-trial conference, the court was not asked to render a decision on the motion in limine. No ruling was made until the challenged evidence was offered during the trial.

After the trial court's decision to admit the evidence, Dopp made two motions for a mistrial pursuant to I.C.R. 29.1 on the ground that he was prejudiced by the timing of the court's ruling on the motion in limine. According to Dopp's argument, his defense was impaired by the late ruling because he was not allowed to voir dire the jury about the Baird incident or mention it in his opening statement and was therefore unable to prepare the jury for this testimony. Dopp later made a motion for a new trial pursuant to I.C.R. 34, which was based in part upon the same argument. All of these motions were denied.

The standards governing appellate review of the orders on motions for mistrial and motions for a new trial are well known. Decisions on both of these types of motions rest within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Atkinson, 124 Idaho at 818, 864 P.2d at 656 (motion for mistrial); State v. Gomez, 126 Idaho 83, 878 P.2d 782 (1994), cert. denied, 513 U.S. 1005, 115 S.Ct. 522, 130 L.Ed.2d 427 (1994) (motion for new trial); State v. Lankford, 116 Idaho 860, 781 P.2d 197 (1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990) (motion for new trial). A mistrial may be declared, upon the defendant's motion, if there has been an error or legal defect during the trial which is prejudicial to the defendant and deprives the...