State v. Lippert

• Decision Date: 19 December 2007
• Docket Number: No. 33028.,33028.
• Citation: 145 Idaho 586,181 P.3d 512
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Robert Scott LIPPERT, Defendant-Appellant.
• Court: Idaho Court of Appeals

181 P.3d 512

145 Idaho 586

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

No. 33028.

Court of Appeals of Idaho.

December 19, 2007.

Review Denied April 15, 2008.

Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Thomas Tharp, Deputy Attorney General, Boise, for respondent.

SCHWARTZMAN, Judge Pro Tem.

Robert Scott Lippert appeals from his judgment of conviction for sexual abuse of a child under the age of sixteen years. For the reasons set forth below, we affirm the evidentiary rulings, but remand the case for a hearing on Lippert's request for substitution of appointed counsel.

I. FACTS AND PROCEDURE

In July 2005, Lippert's daughter, K.Y., reported to police that Lippert had sexually abused her when she was fifteen years old in March 1998. K.Y. stated that the incident occurred after Lippert had required her and one of her sisters, B.W., to model recently-purchased undergarments and swimsuits for him. K.Y. further alleged that after she modeled the clothing, her mother and Lippert required that she allow Lippert to give her a massage because she had complained of having a headache. K.Y. told police that Lippert next had her kneel in front of him, and he placed her head, face-down, in his lap. Lippert then allegedly rubbed her scalp, shoulders, arms, and back for fifteen or twenty minutes, and she could feel that his penis became erect while her face was in his lap. Based on K.Y.'s report of this incident, the state charged Lippert with sexual abuse of a child under the age of sixteen years. I.C. § 18-1506.

Lippert requested and was provided with a public defender. At a pre-trial hearing, the district court rejected a request from Lippert to replace his public defender with another court-appointed attorney. The public defender ultimately represented Lippert at trial despite Lippert's subsequent indication, made on the day of trial just prior to jury selection, that he did not want the appointed public defender to represent him.

Also prior to trial, the state filed a notice of intent to present evidence of prior sexual abuse by Lippert, and the district court held pre-trial hearings on the admissibility of such evidence. At one hearing, the state presented testimony of other alleged incidents of physical and sexual abuse from three of Lippert's daughters, K.Y., B.W., and T.H., as well as two of Lippert's former step-daughters, M.H. and S.U., and his former step-son, D.K. At a subsequent hearing, the state sought to introduce testimony of nine separate acts of abuse by Lippert. The district court excluded testimony that it found was too vague or remote from the charged conduct with K.Y., but ruled admissible testimony on several incidents where Lippert had sexually abused his pubescent daughters and step-daughters. The state ultimately introduced at trial most of the testimony that the district court had determined to be admissible.

A jury found Lippert guilty as charged. The district court sentenced Lippert to a unified term of fifteen years, with a minimum period of confinement of six years. Lippert appeals, asserting that the district court erred by admitting prior bad acts evidence at his trial and by conducting an inadequate inquiry into his complaints about his court-appointed counsel.

II. ANALYSIS

A. Prior Bad Acts Evidence

Prior to trial, the state sought to introduce evidence of nine separate acts of sexual and physical abuse allegedly committed by Lippert upon his children and step-children. Of those nine incidents listed by the state, the district court ruled that it would admit testimony by M.H. and T.H. that they had seen Lippert massage S.U.'s breasts; testimony by S.U. that Lippert had touched her breasts while giving her a massage; testimony from K.Y. and B.W. that they had seen Lippert masterbate under his bathrobe in their bedroom one night; K.Y's testimony that Lippert repeatedly massaged her naked breasts while she was sleeping; and testimony from K.Y. and M.H. that they were required to model bras and underwear for Lippert.¹

The district court determined that these incidents were relevant because they demonstrated Lippert's common scheme or plan to exploit and sexually abuse his pubescent daughters and step-daughters and demonstrated that Lippert did so with the intent to satisfy his sexual desires. The district court also ruled that the probative value of testimony it deemed relevant outweighed the danger of unfair prejudice to Lippert because it was limited to incidents that were similar to the charged incident and were not too remote or vague. With the exception of S.U.'s own testimony that Lippert had touched her breasts while giving her a massage, the evidence that the district court ruled would be admissible was presented to the jury at trial. On appeal, Lippert asserts that the district court erred because the instances of other alleged sexual abuse were irrelevant and any probative value was outweighed by prejudicial effect.

Evidence of other crimes, wrongs, or acts is not admissible to prove a defendant's criminal propensity. I.R.E. 404(b); State v. Needs, 99 Idaho 883, 892, 591 P.2d 130, 139 (1979); State v. Winkler, 112 Idaho 917, 919, 736 P.2d 1371, 1373 (Ct.App.1987). However, such evidence may be admissible for a purpose other than that prohibited by I.R.E. 404(b). State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct.App.2002). In determining the admissibility of evidence of prior bad acts, this Court applies a two-prong analysis. First, the evidence must be relevant to a material disputed issue concerning the crime charged. State v. Moore, 120 Idaho 743, 745, 819 P.2d 1143, 1145 (1991). Whether evidence is relevant is an issue of law. State v. Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 (Ct.App.1993). Therefore, when considering admission of evidence of prior misconduct, we exercise free review of the trial court's relevancy determination. Id. The second step in the analysis is the determination whether the probative value of the evidence is substantially outweighed by unfair prejudice. Id. When reviewing this step we use an abuse of discretion standard. Id.

Evidence of prior sexual abuse may be admissible to prove a general plan to exploit and sexually abuse an identifiable group of victims. See State v. LaBelle, 126 Idaho 564, 567, 887 P.2d 1071, 1074 (1995); State v. Phillips, 123 Idaho 178, 181, 845 P.2d 1211, 1214 (1993); Moore, 120 Idaho at 745-47, 819 P.2d at 1145-47; State v. Byington, 132 Idaho 597, 606-07, 977 P.2d 211, 220-21 (Ct.App.1998), aff'd 132 Idaho 589, 977 P.2d 203 (1999). Testimony of prior acts of sexual misconduct from other victims may also be relevant to corroborate the victim's testimony. State v. Law, 136 Idaho 721, 726, 39 P.3d 661, 666 (Ct.App.2002). Idaho cases affirming the use of bad acts evidence in sexual misconduct cases focus on prior conduct that was actual sexual abuse and that was either similar abuse or involved victims of similar ages to those abused. State v. Field, 144 Idaho 559, 569, 165 P.3d 273, 283 (2007).

In the present case, Lippert first challenges the admission of testimony that Lippert massaged the breasts of one of his step-daughters, S.U. At trial, two witnesses testified to observing similar incidents of such conduct. S.U.'s younger sister, M.H., testified that she shared a room with S.U. and woke up one night to see Lippert straddling S.U. and rubbing her breasts as she was lying on her back. Additionally, one of Lippert's daughters, T.H., testified at trial that she once observed Lippert straddling S.U. as she lay face-down on the floor and massaging the sides of her breasts. Lippert asserts that S.U. did not testify at trial to verify that Lippert had rubbed or massaged her breasts and that S.U. only recounted one instance of having her breasts massaged by Lippert when she testified at the pre-trial hearing. Lippert also asserts that the incidents are too remote in time to the charged conduct with K.Y. Even though the testimony appears to indicate that the incidents with S.U. may have occurred up to ten years prior to the charged incident with K.Y., the incidents all involved improper sexual contact that apparently began as a massage and therefore demonstrated common conduct on Lippert's part. Because the conduct was similar to the charged conduct, remoteness in time does not make the prior abuse irrelevant. See Law, 136 Idaho at 727, 39 P.3d at 667; State v. McGuire, 135 Idaho 535, 539, 20 P.3d 719, 723 (Ct.App.2001). We conclude that the district court properly ruled that this evidence demonstrated Lippert's lustful disposition towards his daughters and step-daughters and his common scheme and plan to sexually abuse them. See State v. Maylett, 108 Idaho 671, 673, 701 P.2d 291, 293 (Ct.App.1985).

Lippert next challenges the admission of testimony from M.H. and K.Y. that Lippert required them to model their undergarments in front of him. K.Y. testified that her mother had asked her and B.W. to pull down their skirts and shirts to show Lippert new undergarments after returning home from shopping. M.H. testified to a separate incident wherein her mother required her and S.U. to model recently-purchased undergarments for Lippert because it was Lippert's money that bought the undergarments. M.H. stated that Lippert leered at her body when she modeled for him. Lippert asserts that testimony on modeling undergarments was not relevant because it pertained to an incident that was not similar to the charged offense. Contrary to this contention, however, the trial testimony showed that K.Y. was required to model undergarments immediately prior to the charged conduct of requiring her to submit to a massage from Lippert with her face in his lap. M.H.'s testimony corroborates K.Y.'s description of the events surrounding the charged incident and also...