State v. Jay

Decision Date13 April 2021
Docket NumberDocket No. 47400
PartiesSTATE OF IDAHO, Plaintiff-Respondent, v. STEVEN MOSES JAY, Defendant-Appellant.
CourtCourt of Appeals of Idaho

STATE OF IDAHO, Plaintiff-Respondent,
v.
STEVEN MOSES JAY, Defendant-Appellant.

Docket No. 47400

COURT OF APPEALS OF THE STATE OF IDAHO

April 13, 2021


Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Benjamin J. Cluff, District Judge.

Judgment of conviction and sentences for felony domestic battery and for misdemeanor resisting and/or obstructing an officer, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent.

____________________

BRAILSFORD, Judge

Steven Moses Jay appeals from his judgment of conviction and sentences for felony domestic battery, Idaho Code §§ 18-903, 18-918(2)(a), and for misdemeanor resisting and/or obstructing an officer, I.C. § 18-705. We affirm.

I.
FACTUAL AND PROCEDURAL BACKGROUND

Late one evening in December 2018, law enforcement responded to a domestic violence incident in Twin Falls. After the purported incident, the victim went to a friend's house and the friend called the police. When Officers Cyr and Weigt arrived at the friend's house, they both observed the victim had a swollen nose and cheek. The victim told Officer Cyr that her

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boyfriend, Jay, had pushed her down, struck her in the face twice, and then pushed her down again. The victim was transported to the hospital.

Meanwhile, Officers Rhoades and Weigt went to Jay's residence. Jay appeared intoxicated, and when the officers arrested him, he resisted by pulling his hand away and trying to retreat into his residence.

The State charged Jay with felony domestic battery and misdemeanor resisting arrest. Jay pled not guilty and proceeded to trial. At trial, the State admitted evidence about the victim's injuries, including the testimony of the emergency room personnel who treated the victim. The nurse who examined the victim testified that the victim's injuries were consistent with being "hit multiple times in the face." Further, the nurse testified that the victim's nose was swollen and had an abrasion; her right brow, left cheek, and left wrist were bruised; and she had multiple scratches on her neck and wrist. Further, the emergency room doctor testified that a CAT scan showed the victim's nasal bones "had been broken into several different pieces." The State admitted in evidence numerous photographs of the victim's injuries.

The State also introduced testimony about the victim's numerous statements that Jay caused her injuries. Officer Cyr testified that the victim initially reported Jay had pushed her down, "struck her in the face twice," and then pushed her down again; she gave Officer Cyr "the exact same story" when he spoke to her later at the hospital; and she told him "the exact same thing" again when he met with her approximately twelve hours later. Similarly, the nurse testified that the victim reported her injuries occurred during an altercation with her boyfriend when he hit her multiple times in the face with his fist. Likewise, the doctor testified the victim reported that "she had been involved in an altercation with her boyfriend" and "she'd been punched in the face with a closed fist three or four times." Finally, the victim provided the same account in a written statement prepared at the hospital.

During the prosecutor's direct examination of the victim, however, she testified she did not remember either reporting that Jay caused her injuries or most of the other events that occurred on the night she was injured. For example, the victim testified that she did not remember getting into an argument with Jay, telling the police Jay pushed her down and caused her bruising, meeting with Officer Cyr at a friend's house or again later at the hospital, providing a written statement at the hospital, how much the victim drank that night, or the injuries she suffered. Explaining her lack of memory, the victim testified she was "highly intoxicated" and

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"under the influence of drugs and pain killers" when she made the statements incriminating Jay. In contrast, Officer Cyr, Officer Weigt, the nurse, and the doctor all testified that the victim did not appear to be intoxicated on the night of the incident.

On cross-examination, the victim continued to recant her prior statements that Jay caused her injuries, explaining those statements were untrue because she was "intoxicated" and not "thinking clear-headed." Explaining her injuries, the victim testified that she sustained them when she was getting into her car on the night of the incident and slipped: "I park on a slope in our driveway, and I slipped on some ice that was under the snow." Further, she testified that she had "held [the] position" that "Jay did not strike [her] in the face" "[e]ver since [she] quit taking the painkillers, because they were making [her] confused."

Ultimately, the jury found Jay guilty of both domestic battery and resisting arrest. Thereafter, the district court sentenced Jay to one year determinate for resisting arrest and to a unified sentence of eight years with three years determinate for felony domestic battery. Jay timely appeals his conviction and his sentence for domestic battery.

II.
ANALYSIS

A. Denial of Motion for Mistrial

Jay asserts the district court erred by denying his motion for a mistrial after the prosecutor attempted to introduce evidence of conduct subject to Idaho Rule of Evidence 404(b). In criminal cases, motions for mistrial are governed by Idaho Criminal Rule 29.1. A mistrial may be declared on the defendant's motion 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 precipitated the motion for mistrial represented reversible error when viewed in the context of the full record. Thus, where a motion for mistrial has been denied in a criminal case, the "abuse of discretion" standard is a misnomer. The standard, more accurately stated, is one of reversible error. Our focus is upon the continuing impact on the trial of the incident that triggered the mistrial motion. The trial judge's refusal to declare a mistrial will be disturbed only if that incident, viewed retrospectively, constituted reversible error.

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State v. Urquhart, 105 Idaho 92, 95, 665 P.2d 1102, 1105 (Ct. App. 1983).

In this case, the prosecutor's inquiry into whether the victim told the police that Jay had previously threatened her prompted Jay's motion for a mistrial. On cross-examination, Jay's counsel asked the victim whether she feared Jay: "[D]o you fear [Jay], as he--who's seated beside me? Do you have a fear of him?" The victim responded: "He's no threat to me. Never has been." On re-direct examination, the prosecutor further inquired about whether Jay had been a threat to the victim:

Q. You testified [Jay] has never--your words--never been a threat to you?
A. He's never been a threat to me.
Q. That's not true, is it? You're scared of him.
A. No, I'm not.
Q. You told the officers you were scared of him.
A. At the time, I thought I was.
Q. . . . So you remember, at the time, being scared of him?
A. I thought I was, yes.
Q. . . . So on the night in question, you were actually scared of him?
A. Yes.
. . . .
Q. You claim he has never been a threat to you twice now, and yet that night you told the officers that this wasn't the first time was it?
A. It's never happened. It's never happened.
Q. You told the officers that this was, what? The third or fourth time?

Before the victim responded to this latter question, Jay's counsel objected and moved for a mistrial outside the jury's presence, arguing the State was attempting to introduce "extraordinarily prejudicial" Rule 404(b) evidence. In response, the prosecutor argued Jay's counsel "opened that door" when he inquired about whether the victim feared Jay.

Before ruling on the mistrial motion, the district court took a break, "listened to the record," and "reviewed the realtime [sic] transcription." Thereafter, the court denied the motion, ruling that "the door was clearly opened by [Jay's counsel's] question and the witness's response"; her response "was entirely predictable based on the question asked"; and the prosecutor's question was not "an impermissible 404(b) question" and was not prejudicial. Nevertheless, the court sustained Jay's objection, did not allow the victim to answer the prosecutor's question, and instructed the jury to disregard the question and not to speculate about the victim's potential answer.

On appeal, Jay argues "the district court's refusal to declare a mistrial after the prosecutor brought up the prohibited [Rule] 404(b) bad acts of [Jay] constituted reversible error." In

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support of this argument, however, Jay does not rely on Rule 404(b), but rather he relies on Rule 613, which provides for extrinsic evidence of a witness's prior inconsistent statements. Specifically, Jay argues the court erred by denying Jay's motion for a mistrial because the prosecutor "told the jury [about] Jay's alleged bad acts under the guise of impeaching [the victim] under [Rule] 613" and the impeachment "was not proper" because the victim "had already admitted her trial testimony was inconsistent with what she told the officers on the night of the incident."

In support of this latter argument, Jay relies on State v. Koch, 157 Idaho 89, 103-04, 334 P.3d 280, 294-95 (2014), which addressed...

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