State v. Dunn
| Decision Date | 28 January 2016 |
| Docket Number | Docket No. 42196,2016 Unpublished Opinion No. 353 |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. JEFFREY LEWIS DUNN, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Dane H. Watkins Jr., District Judge.
Judgment of conviction, vacated; and case remanded.
Sara B. Thomas, State Appellate Public Defender; Elizabeth A. Allred, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
____________________
Jeffrey Lewis Dunn appeals from his judgment of conviction for three counts of lewd conduct with a minor child. Dunn asserts the district court erred in admitting evidence pursuant to Idaho Rule of Evidence 404(b). In addition, Dunn alleges the State committed prosecutorial misconduct during sentencing and the Idaho Criminal Rule 35 motion hearing by commenting on his failure to participate in a psychosexual evaluation. For the reasons set forth below, we vacate the judgment of conviction and remand the matter for further proceedings.
Dunn was charged with three counts of lewd conduct with a minor child under sixteen and the sentencing enhancement for repeat sex offenders. Each count involves a different victim: S.E., A.D., and M.T. Following a trial, the jury returned a guilty verdict on all three counts and Dunn pleaded guilty to the sentencing enhancement. Dunn was sentenced to threeconcurrent fixed-life sentences. Dunn's I.C.R. 35 motion was denied following a hearing before the district court. Dunn appeals the admission of I.R.E. 404(b) evidence and for the first time on appeal, he alleges the State committed prosecutorial misconduct during sentencing and the I.C.R. 35 motion hearing.
In a pretrial motion in limine and notice of intent to utilize I.R.E. 404(b) evidence, the State argued for the admission of I.R.E. 404(b) evidence related to Dunn's 1995 conviction for lewd conduct because the facts of that case tended to show a common scheme or plan consistent with the charged conduct involving the three named victims: S.E., A.D., and M.T. The district court granted the motion allowing the admission of I.R.E. 404(b) evidence about Dunn's abuse of C.R., his daughter, the named victim in the 1995 case. The district court made factual findings of the similarities between the facts of C.R.'s case and the facts in each of the charges in this case including: the age of C.R. and the victims in this case when the abuse occurred; Dunn's role as a father to C.R. and a father-figure to the victims in this case; and the consistency in the type of lewd conduct committed against C.R. and the victims in this case. The court determined: (1) there was sufficient evidence to establish the prior bad act as fact; and (2) the evidence was relevant for purposes other than propensity and was admissible pursuant to I.R.E. 404(b). The court stated:
The Court can make findings that the alleged victims are of similar ages, two of them a year or so apart. The acts are similar enough to draw 404(b) in as a common plan or scheme, and the manner in which the allegations took place have similarity to previous incidences involving the daughter. And so the Court will allow testimony from [C.R.] as to the prior offenses.
The court did not conduct an analysis under the I.R.E. 403 balancing test and did not make a finding that C.R.'s testimony would not be unduly prejudicial to Dunn. Dunn argues the district court erred by failing to consider the prejudicial nature of the I.R.E. 404(b) evidence.
The I.R.E. 404(b) evidence was presented to the jury during voir dire, the State's opening statement, Dunn's opening statement, C.R.'s testimony, and the testimony of both Detective Lawrence and Detective McKenna. While selecting the jury, the State asked potential jurors, The prosecutor stated to another juror, Another juror asked, "Was there an actual conviction before or was it just an accusation?" The prosecutor responded:
We're not going to go over that right now. I just simply posed the issue based upon (inaudible) I want you to get a sense of the fact that his daughter's going to take the stand and say he did it to her. You're going to hear his statements from 1995 about what happened back in 1995.
Dunn did not object to this line of questioning.
During Dunn's voir dire of the jury panel, Dunn addressed this line of questioning with some of the jurors and then stated:
Following this statement, the court excused at least seven jurors who indicated they would not be able to be impartial knowing that Dunn had a prior conviction.
In the State's opening statement, the prosecutor again told the jury C.R. would testify about her abuse and "[t]he purpose of hearing that is to draw the similarities between what he had done to her and what was done to these girls." The prosecutor also told the jury they would hear from the detective that investigated C.R.'s case, and Det. McKenna would testify
In the defense's opening statement, counsel stated:
Mr. Dunn is going to take the stand and he's going to testify that yeah he's been convicted of this in the past nearly 20 years ago . . . . In fact he'll end up testifying that the reason he's here at trial is because two decades ago he was guilty and now in 2013 he's not.
In the State's case-in-chief, prior to C.R.'s testimony, Dunn renewed his objection to the I.R.E. 404(b) evidence stating, "I believe if the court finds the evidence falls within some of the enumerated exceptions of 404(b), I do believe the information to be presented today is so prejudicial that it completely outweighs any probative value or practical value it would haveunder the Idaho Rules of Evidence." The court affirmed its ruling that the evidence was relevant and admissible under the common scheme or plan exception to I.R.E. 404(b) based on the testimony of the three victims and its understanding of the content of C.R.'s prospective testimony. Again, the court did not apply the I.R.E. 403 balancing test and did not address Dunn's objection that the evidence was unduly prejudicial. Thereafter, Dunn asserted a "continuing objection" to the I.R.E. 404(b) testimony.
C.R.'s testimony was not extensive and she was not overly cooperative with the State; however, she did testify Dunn had performed "oral sex" on her, but he had not touched her with his hand, and he did not have her touch him. She testified Dunn told her he committed the lewd conduct for the purpose of "showing me that he loved me." Following C.R.'s testimony, the court provided the jury a limiting instruction consistent with I.R.E. 404(b).
Detective Lawrence testified about the 1995 case investigation including how Dunn admitted to numerous incidences of lewd conduct against C.R. and stated the lewd conduct was a way to show C.R. that he loved her. Dunn did not object to any of this testimony.
Detective McKenna testified about his investigation of this case and the interview he conducted with Dunn. As Det. McKenna began testifying about Dunn's statements regarding the facts of the 1995 case, Dunn interrupted and suggested the court give the limiting instruction prior to any further testimony. The court gave the instruction and Det. McKenna then testified that Dunn admitted to being convicted of a crime against C.R. where he had fondled her and had oral sex with her. The defense objected, stating:
Your Honor, I'm going to object. I think we're kind of beating a dead horse on this issue, and I argue this is cumulative. We had [C.R.] testify as to what he did. Detective Lawrence, who investigated the initial matter has testified about what happened. I don't think that's being disputed at this point.
In response, the State conceded the testimony may be cumulative but stated, "we're also going to draw some inconsistencies in the statements, which would be for impeachment purposes."1 The inconsistency arises from Dunn's statements to Det. McKenna during the interview on the current charges that the abuse committed against C.R. in 1995 occurred only one time for approximately a minute and a half, which is not consistent with the underlying facts of the 1995case. The State offered to re-phrase the question and the defense again objected, arguing the testimony would go beyond the scope of the I.R.E. 404(b) ruling. The court sustained the objection because the State's attempt to impeach Dunn was premature.
The State then re-phrased the question as follows: "Is that statement...
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