State v. Johnson

• Decision Date: 01 February 2010
• Docket Number: No. 33691.,33691.
• Citation: 227 P.3d 918
• Parties: STATE of Idaho, Plaintiff/Respondent, v. David Leon JOHNSON, Defendant/Appellant.
• Court: Idaho Supreme Court

227 P.3d 918

STATE of Idaho, Plaintiff/Respondent, v. David Leon JOHNSON, Defendant/Appellant.

No. 33691.

Supreme Court of Idaho, Boise, January 2010 Term.

February 1, 2010.

COPYRIGHT MATERIAL OMITTED

Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Elizabeth Allred argued.

Hon. Lawrence G. Wasden, Attorney General, for respondent. Kenneth Jorgensen argued.

I. NATURE OF THE CASE

W. JONES, Justice.

The appellant, David Leon Johnson, was convicted of two counts of lewd and lascivious conduct for allegedly molesting his daughter in 2004 when he had sole custody of her over spring break. He appeals the district court's admission of evidence showing that he had molested his little sister when he was a teenager. Johnson also appeals the admission of other testimony that his daughter only thought he had abused her because she accidentally observed him masturbating and watching pornography.

II. FACTUAL AND PROCEDURAL BACKGROUND

David Leon Johnson, the appellant, was charged with three counts of lewd and lascivious conduct with a minor under sixteen pursuant to I.C. § 18-1508. He was charged for offenses he allegedly committed against his daughter, A.J., who was between six and seven years old at the time of the charged conduct. Mr. Johnson had a home in Paul, Idaho, with his wife and five children at the time. The first two counts allegedly occurred over the first weekend of spring break, 2004. Michelle Johnson, Mr. Johnson's wife at the time, purportedly took the couple's children to Utah to visit her parents but left A.J. behind with Mr. Johnson. A.J. testified that while she was home alone with Mr. Johnson he molested her on two occasions. First, he allegedly touched and penetrated A.J.'s genitalia with his hands, made A.J. touch his penis manually until he ejaculated, and then forced her to lick chocolate off of his penis. Second, Mr. Johnson allegedly attempted to penetrate A.J. in the shower by lifting her up and onto his penis. The third count alleged that Mr. Johnson molested his daughter over the Memorial Day weekend of 2005. Mr. Johnson was acquitted of this charge.

At trial, Mr. Johnson denied any sexual misconduct and disputed the State's theory that he was ever home alone with A.J. over spring break of 2004. Over the defense's objection, Mrs. Johnson testified that A.J. reported being abused to her in 2004 and that when Mrs. Johnson confronted Mr. Johnson about it, Mr. Johnson claimed that A.J. had walked in on him masturbating while watching pornography and was simply confused. The prosecution was also permitted to introduce evidence, again over objection, that Mr. Johnson had molested his younger sister when she was approximately eight years old and he was between fifteen and sixteen. The trial court also excluded as untimely disclosed a personal journal belonging to Mr. Johnson's sister and a work log completed by Mrs. Johnson, both tending to show that Mr. Johnson could not have been home alone with A.J. during the time of the charged offenses.

The jury convicted Mr. Johnson of the first two counts of lewd conduct for the 2004 incidents. The district court sentenced Johnson to two concurrent terms of twenty years with five years fixed. He appeals the admission of his prior misconduct; his statements regarding masturbation and pornography; and the court's refusal to admit his undisclosed evidence. He also contends that his sentence is excessive.

III. ISSUES ON APPEAL

1. Whether the district court erred under I.R.E. 404(b) in admitting evidence of Mr. Johnson's prior sexual misconduct with his sister.

2. Whether the district court erred in admitting evidence that Mr. Johnson had been masturbating and viewing pornography.

IV. ANALYSIS

A. The District Court Erred in Admitting Evidence of Mr. Johnson's Prior Sexual Misconduct

Under I.R.E. 404(b), evidence of other crimes, wrongs, or acts is not admissible to show a defendant's criminal propensity. State v. Sheldon, 145 Idaho 225, 227, 178 P.3d 28, 30 (2008). "It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," so long as the prosecution provides notice that it intends to produce the evidence. I.R.E. 404(b). This Court freely reviews the question of relevancy as an issue of law. State v. Hairston, 133 Idaho 496, 501, 988 P.2d 1170, 1175 (1999). Next, under I.R.E. 403, relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice." State v. Page, 135 Idaho 214, 219, 16 P.3d 890, 895 (2000). The trial court's I.R.E. 403 determination 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).

To determine whether discretion has been abused, the Court must ascertain: first, whether the trial court correctly perceived the issue as one requiring the exercise of discretion; second, whether the trial court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and, third, whether the court reached its conclusion by an exercise of reason.

Zamora v. State, 123 Idaho 192, 194, 846 P.2d 194, 196 (1992) (citing Sun Valley Shopping Center v. Idaho Power, 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991)). In short, this Court will employ a two-step analysis, determining: (1) whether, under I.R.E. 404(b), the evidence is relevant as a matter of law to an issue other than the defendant's character or criminal propensity; and (2) whether, under I.R.E. 403, the district court abused its discretion in finding the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice to the defendant. State v. Cross, 132 Idaho 667, 670, 978 P.2d 227, 230 (1999).

At trial, the State produced testimony that Mr. Johnson molested his eight-year-old sister, Elizabeth, when he was between the ages of fifteen and sixteen. The abuse consisted of Mr. Johnson exposing himself to his sister and requesting that she expose herself to him. The State also showed that Mr. Johnson once requested Elizabeth to touch his penis and that she complied.¹ Mr. Johnson asserts that evidence of prior sexual misconduct with his sister was not relevant to prove a common scheme or plan under I.R.E. 404(b). The State maintains that this evidence corroborated the victim's claims that Johnson had sexually abused her and was therefore relevant.²

1. Evidence That Mr. Johnson Molested His Sister Was Irrelevant to the Charged Conduct Under I.R.E. 404(b)

Johnson contends that in State v. Moore, 120 Idaho 743, 819 P.2d 1143 (1991), and State v. Tolman, 121 Idaho 899, 828 P.2d 1304 (1992), this Court erroneously carved out an exception to I.R.E. 404(b) in child sex-abuse cases, allowing trial courts to admit evidence of any prior conduct that tends to corroborate the victim's story. In both cases, this Court held that because many sex-abuse prosecutions involve weighing the word of an adult defendant against that of a minor victim, credibility is particularly important. Moore, 120 Idaho at 745-46, 819 P.2d at 1145-46; Tolman, 121 Idaho at 904-05, 828 P.2d at 1309-10. For that reason, this Court held that "evidence of prior misconduct is admissible where it is relevant to the credibility of the parties." Tolman, 121 Idaho at 904, 828 P.2d at 1309. Johnson maintains that Idaho's courts have wrongly interpreted these cases as allowing nearly any prior sexual misconduct to be used against the defendant in sex-abuse cases generally.

The district court's decision to admit the 404(b) testimony in this case was understandable given that this Court's recent opinion in State v. Grist, 147 Idaho 49, 205 P.3d 1185 (2009), was not available at the time. In Grist, this Court acknowledged that Idaho courts have sometimes interpreted Moore and Tolman as permitting character evidence to prove child-sex-abuse charges but expressly repudiated the notion that a different rule applies to 404(b) evidence in such cases. Id. at 51, 205 P.3d at 1187. This Court reasoned that "the theoretical underpinning of the admissibility of uncharged misconduct for purposes of `corroboration' as articulated in Moore is indistinguishable from admitting such evidence based upon the accused's propensity to engage in such behavior based upon his or her past behavior." Id. It reiterated that bad acts may only be admitted "if relevant to prove ... a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, knowledge, identity, or absence of mistake or accident." Id. at 54-55, 205 P.3d at 1190-91 (emphasis in original) (quoting State v. Pizzuto, 119 Idaho 742, 750-51, 810 P.2d 680, 688-89 (1991) abrogated on other grounds by State v. Card, 121 Idaho 425, 825 P.2d 1081 (1991)).

In other words, at a minimum, there must be evidence of a common scheme or plan beyond the bare fact that sexual misconduct has occurred with children in the past. The events must be linked by common characteristics that go beyond merely showing a criminal propensity and instead must objectively tend to establish that the same person committed all the acts. See, e.g., State v. Cardell, 132 Idaho 217, 220, 970 P.2d 10, 13 (1998) (admitting evidence that defendant, a masseuse, had previously assaulted his clients while massaging them to show that he did not accidentally grope the victim during a massage); State v. Tapia, 127 Idaho 249, 254-55, 899 P.2d 959, 964-65 (1995) (admitting evidence the defendant had repeatedly expressed sexual interest in the juvenile victim to show a particular criminal intent to sexually assault her); State v. Martin, 118 Idaho 334, 338, 796 P.2d 1007, 1011 (1990) (admitting evidence of defendant's prior sexual assaults to show identity because in all the...