State v. Martin

• Decision Date: 02 August 1990
• Docket Number: No. 17730,17730
• Citation: 118 Idaho 334,796 P.2d 1007
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Larry Joe MARTIN, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1007

796 P.2d 1007

118 Idaho 334

STATE of Idaho, Plaintiff-Respondent, v. Larry Joe MARTIN, Defendant-Appellant.

No. 17730.

Supreme Court of Idaho.

Aug. 2, 1990.

[118 Idaho 335] Stewart A. Morris, Boise, for defendant-appellant.

Hon. Jim Jones, Atty. Gen., Michael J. Kane, Deputy Atty. Gen. (argued), Boise, for plaintiff-respondent.

BAKES, Chief Justice.

Defendant Larry Joe Martin appeals his conviction and sentence for second degree burglary and attempted rape as enhanced pursuant to the repeat sex offender statute. Martin argues that the trial court committed reversible error by allowing testimony from two of Martin's previous sex offense victims. Martin asserts that (1) the details of the prior attacks were not so similar to those of the charged crime so as to assist in proving identity, and (2) the circumstances of those attacks were too remote, in that they occurred ten and twelve years before the alleged attempted rape. Martin also argues that the sentence imposed on him of twenty to thirty years in prison is excessive and unduly harsh.

I FACTS

On October 1, 1987, a young woman was accosted just inside of her apartment by a man wearing a Halloween mask, gloves, and carrying a knife. A struggle ensued. The man held the knife against the young woman's throat and threatened to kill her if she didn't submit to him. The knife injured her. He ripped open her blouse, touched her private areas, and announced that he was going to rape her.

Although the attacker's face was covered by the mask, the young woman recognized the man as Larry Martin, an acquaintance of her brother. The young woman's brother and Martin met in prison and Martin had stayed with the two for a week in the young woman's apartment after his release. During this time the brother showed Martin how to "jimmy" the bolt on the back door. After Martin completed his stay, the young woman began receiving obscene telephone calls. A couple of weeks before the attack, the caller said he knew that her brother was no longer living in the apartment. During the attack, the young woman recognized the attacker's voice as the same as the caller's and as Martin's. At the time of the attack she also recognized Martin's clothing, his blue jeans, white "prison-type" tennis shoes and a country-western shirt which he often wore when he was staying in the victim's apartment.

The young woman told the attacker that she knew who he was, that he was going to go back to prison, that her brother would soon arrive for dinner, and that he had better leave. A car then drove up and the attacker looked out of the window and announced that the car was not her brother's.

The attacker eventually tied the young woman's hands together. The young woman screamed when a friend knocked on the door. The attacker beat her, but she continued to scream. Finally, the attacker fled through the back door and the young woman was able to let her friend in. Later, a knife, identified as one of her kitchen knives, was found forty to fifty feet behind the apartment. Apparently, no other object was taken from the apartment.

At trial Martin was charged with second degree burglary and attempted rape. The state also charged Martin with being a repeat sex offender as a result of having been convicted of one prior sex offense within the past ten years. Martin unsuccessfully sought a motion in limine to bar testimony concerning two prior sex offense convictions. At trial the state offered testimony from Martin's two previous victims, the victim of Martin's 1977 assault with intent to commit rape conviction and the victim of Martin's 1979 rape conviction. A limiting instruction was given to the jury outlining the only narrow purpose for which they could consider the two women's After the jury found Martin guilty of both counts of second degree burglary and attempted rape, Martin pleaded guilty to the repeat sex offender charge. The trial court imposed a thirty-year sentence with a twenty-year minimum for rape as enhanced by the repeat sex offender statute, and a concurrent five-year sentence, two-year minimum, for second degree burglary.

[118 Idaho 336] testimony, i.e., to prove identity. No objection is raised by Martin as to the adequacy of that instruction.

II MARTIN'S PRIOR SEX OFFENSES

The first issue we address is whether the trial court committed error by denying Martin's objection to the testimony from the victim of Martin's 1977 assault with intent to commit rape conviction and the victim of Martin's 1979 rape conviction. Martin asserts that the admission of such evidence violated I.R.E. 404(b) ¹ which generally bars evidence of other crimes and I.R.E. 403 ² which bars otherwise relevant evidence if its prejudicial effect substantially outweighs its probative value. The trial court concluded that the evidence was relevant because it tended to prove the identity of Martin as the attacker in the present case based on the significant similarities in the 1987 attack and Martin's 1977 and 1979 attacks. The trial court further found that the probative value of this evidence was not substantially outweighed by any unfair prejudicial effect. I.R.E. 403. Martin claims that the trial court abused its discretion in balancing the relevance of the testimony against the prejudicial effect. Martin also argues for the first time on appeal, that evidence of the two prior attacks was so remote in time as to make it irrelevant or unfairly prejudicial for the purpose for which it was offered, namely, to identify the culprit in the 1987 attack.

I.R.E. 404(b) provides generally that evidence of other criminal acts or offenses is inadmissible to "prove the character of a person in order to show that he acted in conformance therewith." State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979). However, I.R.E. 404(b) provides that such evidence may be admissible when relevant to establish, among other things, the identity of the person charged with the commission of the crime. I.R.E. 404(b); State v. Wrenn, 99 Idaho 506, 584 P.2d 1231 (1978). "Evidence of other crimes committed by the defendant is relevant to the issue of identity if it discloses a distinctive modus operandi common to the other crimes and common to the crime in which the defendant is charged." State v. Morris, 97 Idaho 420, 422, 546 P.2d 375, 377 (1976); State v. Abel, 104 Idaho 865, 664 P.2d 772 (1983); State v. Hatton, 95 Idaho 856, 522 P.2d 64 (1974). Even if the evidence is deemed relevant for the purposes of I.R.E. 404(b), the trial court may exclude the evidence if "its probative value is substantially outweighed by the danger of unfair prejudice" to the defendant. I.R.E. 403 (emphasis added); State v. Roach, 109 Idaho 973, 712 P.2d 674 (Ct.App.1985). "[T]he admissibility of such evidence is within the discretion of the trial judge." State v. Abel, 104 Idaho 865, 869, 664 P.2d 772, 776 (1983); State v. Thomas, 94 Idaho 430, 489 P.2d 1310 (1971).

Here, the trial court specifically found that there were "sufficient similarities" between the 1977 and 1979 attacks and the 1987 attack to make the testimony of the 1977 and 1979 victims relevant. Tr., Vol. I, p. 23. The trial court also found that the 1977 and 1979 victims' testimony "would be

[118 Idaho 337] probative to the question of identity sufficient to outweigh the prejudice" to Martin. Id. Our task on appeal is to determine whether the trial court clearly abused its discretion in allowing the 1977 and 1979 victims to testify concerning the circumstances surrounding Martin's prior sex offenses. We first consider whether the testimony sufficiently supports the trial court's determination that it is relevant to the issue of identity, i.e., whether the testimony sufficiently "discloses a distinctive modus operandi common to the other crimes and common to the crime in which the defendant is charged." State v. Morris, 97 Idaho 420, 422, 546 P.2d 375, 377 (1976). We then determine whether the probative value of the testimony is substantially outweighed by the danger of unfair prejudice to the defendant.

A. Relevancy--modus operandi

"Modus operandi is generally a means of proving the identity of the perpetrator of the crime charged, by demonstrating that the defendant had committed in the past other crimes sharing with the present offense features significantly unique to make it likely that the same person committed the several crimes." People v. Sam, 71 Cal.2d 194, 77 Cal.Rptr. 804, 454 P.2d 700, 705 (1969); Coleman v. State, 621 P.2d 869, 874, n. 4 (Alaska 1980); Nester v. State, 75 Nev. 41, 334 P.2d 524 (1959); E. Cleary, McCormick on Evidence § 190 at 451 (2d ed. 1972); R. Lempert and S. Saltzburg, A Modern Approach to Evidence, 218-19 (1977). While it is important that the evidence bear a high degree of similarity in order to show a modus operandi, the circumstances of the prior offenses need not be identical to those of the crime charged. State v. Breazeale, 238 Kan. 714, 714 P.2d 1356 (1986), cert. denied, 479 U.S. 846, 107 S.Ct. 164, 93 L.Ed.2d 102 (1986); State v. Roscoe, 145 Ariz. 212, 700 P.2d 1312 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 525 (1984).

Here, there are many significantly unique features which were present in Martin's 1977 and 1979 sex offenses as well as in the 1987 sex offense. From these similarities the trial court concluded that the testimony of the 1977 and 1979 victims was relevant because the testimony tends to demonstrate that Martin was the person who committed the 1987 sex offense.

Martin's unique method of committing sex offenses is apparent from the circumstances in which he victimized one young woman in 1977 and another young woman in 1979. In December, 1977, Martin assaulted a young woman with intent to commit rape. The victim was young, unattached and acquainted with Martin. Martin forced his way into her residence through the window and surprised his victim. Martin wore a stocking mask in an attempt to conceal his...