State v. Dunn, Docket No. 45115
| Decision Date | 09 October 2018 |
| Docket Number | Docket No. 45115 |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. JEFFREY LEWIS DUNN, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Karel A. Lehrman, 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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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. Joel E. Tingey, District Judge.
Judgment of conviction for three counts of lewd conduct with a child under the age of sixteen, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Elizabeth A. Allred, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jeffery D. Nye, Deputy Attorney General, Boise, for respondent.
____________________
Jeffrey Lewis Dunn appeals from the judgment of the district court, entered upon a jury verdict, finding him guilty of three counts of lewd conduct with a child under the age of sixteen, Idaho Code § 18-1508. He asserts the district court abused its discretion when it admitted an excerpt of his prior trial testimony and erred in denying his motions for a mistrial. He argues the State committed prosecutorial misconduct that constituted fundamental error. Dunn also contends that the cumulative error doctrine applies here, necessitating a reversal of his conviction. We affirm.
Dunn previously appealed from a judgment of the district court entered upon a jury verdict finding him guilty of three counts of lewd conduct with a child under the age of sixteen. State v. Dunn, Docket No. 42196 (Ct. App. Jan. 28, 2016) (unpublished). This Court concluded the district court abused its discretion when it admitted Idaho Rule of Evidence 404(b) evidence relating to Dunn's previous conviction for lewd conduct with his daughter and Dunn's inconsistent statements. This Court held the errors were not harmless, vacated his conviction, and remanded the case for further proceedings.
On remand, the district court held that the I.R.E. 404(b) evidence relating to Dunn's previous conviction would not be admitted at the second trial for any purpose. At the second trial, the State presented three alleged victims as witnesses: S.E., A.D., and M.T. Each witness independently testified that Dunn had been a father figure during childhood and that he molested each girl when she was under sixteen years old. S.E. further testified that every time Dunn molested her he would tell S.E., Upon learning of the abuse, A.D.'s mother immediately reported it to the police, and she also testified at trial and corroborated the testimony of the alleged victims. Additionally, the State presented testimony from a detective involved with the case and an expert witness who testified regarding grooming behavior. During the course of the trial, Dunn twice moved for a mistrial; both motions were denied by the district court. Over Dunn's objection, the district court also admitted an excerpt of Dunn's testimony from the prior trial. During closing arguments, the State referenced S.E.'s testimony in which Dunn had told S.E. that Dunn's actions were how daddies show their love. He now asserts there was error relating to these rulings and occurrences.
Dunn was found guilty by the jury on all three charges. Dunn timely appeals from his judgment of conviction.
Dunn asserts the district court erred when admitting an excerpt of his prior trial testimony based on its conclusion that it was not unfairly prejudicial under I.R.E. 403, which provides:"The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." A lower court's determination under I.R.E. 403 will not be disturbed on appeal unless it is shown to be an abuse of discretion. 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). When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the lower court correctly perceived the issue as one of discretion, acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it, and reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989). In this case, Dunn specifically challenges whether the lower court reached its decision by an exercise of reason.
The admitted excerpted testimony related to M.T. spending the night at Dunn's home and is as follows:
Dunn asserts that due to being taken out of context, the excerpted testimony was unfairly prejudicial because it incorrectly conveyed that he had previously testified that he desired M.T. However, since Dunn never previously testified that he desired M.T., the implication that Dunn had misled the jury was devastating to his case. He contends that when the prior testimony is read in its entirety, it is clear he was conveying he initially did not allow M.T. to spend the night to avoid a potential trigger. Dunn claims the prior testimony should have been excluded in its entirety because he could not clarify its meaning without supplementing the excerpt, whichwould have inevitably resulted in presenting I.R.E. 404(b) evidence that he previously committed a sexual offense.
This is analogous to State v. Folk, 162 Idaho 620, 402 P.3d 1073 (2017), in which the Idaho Supreme Court held the district court did not abuse its discretion when it admitted testimony in which a witness answered affirmatively when asked whether the defendant had indicated that he desired to sexually abuse children. Id. at 626, 402 P.3d at 1079. Like Dunn, the defendant in that case also argued that any probative value of the challenged testimony was substantially outweighed by the risk of unfair prejudice. Id. While the Court found the evidence was prejudicial, it concluded it was not unfairly so and noted, Id. at 627, 402 P.3d at 1080 (quoting State v. Rawlings, 159 Idaho 498, 506, 363 P.3d 339, 347 (2015)). The Court ultimately agreed with the district court's reasoning that the testimony "appears to be highly relevant to the issues of motive, intent, or absence of mistake or accident" and "is probative of [defendant]'s state of mind and gives an explanation as to why he would place himself alone with a child or touch a child." Id. at 626, 402 P.3d at 1079.
Dunn's argument that the excerpted testimony was misleading to the jury and unfairly prejudicial because he never specifically testified that he desired M.T. is unpersuasive. Like the testimony in Folk, the testimony is prejudicial, but not unfairly so. The testimony indicates that Dunn initially rebuffed the request to let M.T. spend the night to avoid a potential trigger. It is not necessary for Dunn to have previously stated M.T. was specifically "an object of desire." The distinction between perceiving the request to spend the night as a trigger for sexual desire as opposed to expressly stating M.T. was "the object of desire" is immaterial.
The district court's analysis of the previous testimony shows that the district court reached its decision through an exercise of reason, focusing on the context of the testimony at issue. Specifically, in overruling Dunn's objection, it stated:
Similar to the reasoning in Folk, the admitted testimony is probative of Dunn's state of mind and explains why he would place himself alone with a minor. It is likewise relevant to the issues of motive, intent, or absence of mistake or accident. The testimony was not misleading to the jury or unfairly prejudicial to Dunn. We hold that Dunn has not shown that the district court abused its discretion by admitting the excerpt of prior trial testimony.
Dunn twice moved for a mistrial following statements made by S.E. and A.D.'s mother, both of which were denied by the district court. In criminal cases, motions for mistrial are governed by Idaho Criminal Rule 29.1. A mistrial may be declared upon motion of the defendant when there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the defendant and deprives the defendant of a fair trial. I.C.R. 29.1(a). Our standard for reviewing a district court's denial of a motion for mistrial is well established:
[T]he question on appeal is not whether the trial judge reasonably exercised his discretion in light of circumstances existing when the mistrial motion was made. Rather, the question must be whether the event which...
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