State v. Erickson, 35436.

• Decision Date: 01 March 2010
• Docket Number: No. 35436.,35436.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Scott ERICKSON, Defendant-Appellant.
• Court: Idaho Court of Appeals

227 P.3d 933

STATE of Idaho, Plaintiff-Respondent, v. Scott ERICKSON, Defendant-Appellant.

No. 35436.

Court of Appeals of Idaho.

March 1, 2010.

COPYRIGHT MATERIAL OMITTED

Molly J. Huskey, State Appellate Public Defender; Heather M. Carlson, Deputy Appellate Public Defender, Boise, for appellant. Heather M. Carlson argued.

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

LANSING, Chief Judge.

A jury found Scott Erickson guilty of two counts of sexual abuse of a child. Erickson appeals from the judgment of conviction, asserting numerous instances of prosecutorial misconduct during trial. He also argues that the district court erred in holding that the State did not make discriminatory use of peremptory challenges to exclude male jurors and erred in admitting improper character evidence. Erickson asserts that these errors individually and cumulatively deprived him of his right to a fair trial.

I. BACKGROUND

Erickson was charged with three counts of lewd conduct with a minor child under sixteen, Idaho Code § 18-1508, based upon allegations of sexual conduct with his stepdaughter, L.H., and his biological daughter, C.E., when each was about ten years old. A jury found him guilty of two counts of the lesser offense of sexual abuse of a minor, I.C. § 18-1506, and not guilty of the third count. Erickson contends on appeal that many errors, some objected to and some not, were made during his trial, including multiple instances of prosecutorial misconduct, errors in the admission of evidence, and the allowance of gender discrimination through the State's use of peremptory challenges to prospective jurors.

II. ANALYSIS

A. Error in Admitting Evidence of Nonpayment of Child Support

Erickson first contends that the district court erroneously admitted evidence that he was not paying child support after separation from his estranged wife, Tammy. Erickson called Tammy to testify regarding the volatility of their separation in an effort to support his defense that the children's allegations against him were prompted by Tammy or were otherwise simply a result of this very tempestuous relationship. Some of the testimony centered around a dispute between Erickson and Tammy over who should have possession of a truck. The evidence showed that Tammy took the truck from the residence of Erickson's parents, after which Erickson retrieved the truck with the assistance of a sheriff's deputy. On rebuttal, the State called Tammy as a witness and asked her to explain the circumstances of her taking the truck. The prosecutor asked, "Now at that time were you getting any child support?" Erickson objected that this called for improper character evidence. The prosecutor responded that he was just trying to show Tammy's "desperate need for a vehicle." The court overruled the objection, and Tammy responded that she was not receiving any child support. Erickson argues that the admission of this evidence was error.

We agree that this evidence should have been excluded because it was not relevant to any issue in the case. To be relevant, evidence must have 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." Idaho Rule of Evidence 401. Whether evidence is relevant is a question of law that we freely review. State v. Sheldon, 145 Idaho 225, 228, 178 P.3d 28, 32 (2008). Whether Erickson was paying child support has no relevance to whether he committed the charged crimes. Even if Tammy's state of poverty had some marginal relevance to explain why she took the truck—a matter that was placed in evidence by Erickson—the testimony in question did not indicate that she was impoverished; it merely indicated that she had no income from Erickson. The district court erred by admitting this evidence.

B. Prosecutorial Misconduct

Erickson claims there were numerous instances of prosecutorial misconduct in the opening statement, closing argument, and evidentiary stages of his trial. Because we conclude that at least three of these claims are meritorious and, along with the evidentiary error discussed in Section A above, cumulatively constitute reversible error, we do not address the remaining instances of alleged prosecutorial misconduct.

The Idaho Supreme Court recently discussed the responsibility of prosecutors and the standard of review applied to appellate claims of prosecutorial misconduct:

As public officers, prosecutors have a duty to ensure that defendants receive fair trials. State v. Irwin, 9 Idaho 35, 43-44, 71 P. 608, 610-11 (1903). In carrying out this duty, a prosecutor must "guard against anything that would prejudice the minds of the jurors, and tend to hinder them from considering only the evidence introduced." Id. at 44, 71 P. at 611. A prosecutor must also ensure that the jury receives only competent evidence. State v. Christiansen, 144 Idaho 463, 469, 163 P.3d 1175, 1181 (2007). Under certain circumstances, a prosecutor's failure to fulfill these duties will result in reversal of the defendant's conviction. Id.

On appeal, the standard of review governing claims of prosecutorial misconduct depends on whether the defendant objected to the misconduct at trial. As a general rule, we will not consider arguments made for the first time on appeal. State v. Sharp, 101 Idaho 498, 503, 616 P.2d 1034, 1039 (1980). When the alleged error constitutes a fundamental error, however, review on appeal is permissible. State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971). Accordingly, when an objection to prosecutorial misconduct is not raised at trial, the misconduct will serve as a basis for setting aside a conviction only when the "conduct is sufficiently egregious to result in fundamental error." State v. Porter, 130 Idaho 772, 785, 948 P.2d 127, 140 (1997). Misconduct will be regarded as fundamental error when it "goes to the foundation or basis of a defendant's rights or ... to the foundation of the case or takes from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive." State v. Bingham, 116 Idaho 415, 423, 776 P.2d 424, 432 (1989) (quoting State v. Garcia, 46 N.M. 302, 128 P.2d 459, 462 (1942)). "However, even when prosecutorial misconduct has resulted in fundamental error, the conviction will not be reversed when that error is harmless." State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). Under the harmless error doctrine, a conviction will stand if the Court is convinced beyond a reasonable doubt that the same result would have been reached by the jury had the prosecutorial misconduct not occurred. State v. LaMere, 103 Idaho 839, 844, 655 P.2d 46, 51 (1982).

Conversely, when an objection to alleged prosecutorial misconduct is raised at trial, we use a two-part test to determine whether the misconduct requires reversal. See, e.g., State v. Reynolds, 120 Idaho 445, 448, 816 P.2d 1002, 1005 (Ct.App.1991). First, we ask whether the prosecutor's challenged action was improper. State v. Romero-Garcia, 139 Idaho 199, 202, 75 P.3d 1209, 1212 (Ct.App.2003). If it was not, then there was no prosecutorial misconduct. Id. If the conduct was improper, we then consider whether the misconduct "prejudiced the defendant's right to a fair trial or whether it was harmless." Id. The defendant carries the burden of proving prejudice. State v. Wright, 97 Idaho 229, 232, 542 P.2d 63, 66 (1975). When a defendant is unable to demonstrate prejudice, the misconduct will be regarded as harmless error. State v. Garcia, 100 Idaho 108, 111, 594 P.2d 146, 149 (1979).

State v. Severson, 147 Idaho 694, 715-16, 215 P.3d 414, 435-36 (2009).

1. Questioning witness in violation of a prior district court ruling

Before trial, Erickson sought to exclude any evidence of his history of drug use. The district court held that any evidence pertaining to Erickson's use or possession of illegal drugs could not be presented to the jury unless the court permitted it after conducting a hearing outside the jury's presence. During trial, Erickson called his father, Glade Erickson (Glade), to testify about the strained relationship between Erickson and Tammy as a possible motive for the victims to fabricate their allegations of lewd conduct. Glade testified to the incident where Tammy took the truck from Glade's house. Glade said that later, after Erickson was arrested on the lewd conduct charges, Glade told Tammy that she could come and get the truck. On cross-examination, the prosecutor asked whether Glade knew if there were any illegal substances found in that vehicle. Before Glade answered, Erickson objected and, after the jury was excused, the prosecutor explained he was presenting the testimony to support his theory that Erickson and his family turned over the truck with drugs in it in order to frame Tammy for possession of the drugs. The court sustained Erickson's objection to this evidence, but no jury instruction to disregard the question was asked for or given. Erickson argues on appeal that the question itself amounted to prosecutorial misconduct because it violated the prior district court ruling.

We agree. Violation of a district court order governing the presentation of evidence may constitute misconduct. Field, 144 Idaho at 572, 165 P.3d at 286; State v. Martinez, 136 Idaho 521, 525, 37 P.3d 18, 22 (Ct.App.2001); State v. Agundis, 127 Idaho 587, 594-97, 903 P.2d 752, 759-62 (Ct.App. 1995). Misconduct may also occur through the interjection of inadmissible evidence into a trial by phrasing a question in a manner that allows the jury to infer what the answer would have been. In State v. Christiansen, 144 Idaho 463, 469, 163 P.3d 1175, 1181 (2007), our Supreme Court said:

We long ago held, "It is the duty of the prosecutor to see that a defendant has a fair trial, and that nothing but

...