State v. Molen, Docket No. 34940 (Idaho App. 1/12/2010)

Decision Date12 January 2010
Docket NumberDocket No. 34940.
PartiesSTATE OF IDAHO, Plaintiff-Respondent, v. MICHAEL SCOTT MOLEN, Defendant-Appellant.
CourtIdaho Court of Appeals

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Boise County. Hon. Kathryn A. Sticklen and George D. Carey, District Judges.

Judgment of conviction for lewd conduct with a minor under sixteen, affirmed.

Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Daniel W. Bower, Deputy Attorney General, Boise, for respondent.

LANSING, Chief Judge.

Michael Scott Molen appeals from his conviction for lewd conduct with a minor. He claims error in the exclusion of Molen's proffered evidence that the child had acquired extensive knowledge of sexual matters prior to the alleged offense, the State's use of evidence that Molen did not speak to law enforcement authorities about the charges, and the court's failure to give a unanimity instruction to the jury.


Molen was charged with lewd conduct with a minor, Idaho Code § 18-1508, for allegedly having genital-to-genital contact with his step-granddaughter, S.Z., when she was eight or nine years old. The defense theory at trial was that S.Z. had fabricated the allegations, perhaps at the instigation of her mother who was allegedly angry at Molen. Molen filed a pretrial motion in limine seeking an advance ruling that the court would admit testimony by five family members who would say that S.Z.'s mother had exposed the child to graphic sexual conduct prior to the charged offense. In a memorandum in support, Molen explained why he sought to present this evidence:

One of the most pressing questions the jury will ask itself is how this eight year old girl would know so much about sex unless she had actually been molested. The Defense will produce several witnesses, including the sisters and mother of [T.D.], the alleged victim's mother, who will testify that [T.D.] has exposed her daughter [S.Z.] to a constant, graphic, sexually charged lifestyle for her entire life, including openly having sex with multiple partners with [S.Z.] in the home, openly discussing and showing sex toys and pornography in front of [S.Z.], and openly disrobing in front of other family members in the presence of [S.Z.], etc. This evidence is not only relevant under IRE Rule 401 and 402, it is crucial to the jury's understanding of [S.Z.'s] knowledge of sexual matters and how she obtained it. Without it, the jury will make assumptions that are in no way based in reality.

In response, the prosecution argued that how an eight-year-old knows about sex is "completely irrelevant" because kids learn about sex in any number of ways at any number of different ages. The district court apparently agreed with the prosecution's relevance argument, because it held that the testimony would not be admitted.

At the trial,1 S.Z. testified to sexual molestation by Molen, including sexual intercourse, occurring on many occasions. As part of its case-in-chief, the State elicited from S.Z's mother testimony that she had not spoken to S.Z. "in detail about sex and how she might talk about that if she were to talk to authorities in this case." Molen then again sought leave to present his evidence of the child's exposure to her mother's sexual behavior, contending that the prosecution had opened the door to its admission. The district court held that Molen's evidence was only tangentially relevant to the case and excluded it on the ground that its probative value was outweighed by the danger of confusion of the issues, misleading the jury, and unfair prejudice. The jury returned a guilty verdict.

On appeal, Molen asserts error in the district court's exclusion of the evidence of S.Z.'s prior exposure to sexual activity, in the prosecutor's cross-examination of Molen concerning his choice not to contact police, and in the jury instructions. He also asserts the district court erred in refusing to strike an unsubstantiated allegation from the presentence investigation report.

A. Admissibility of the Child's Prior Sexual Knowledge

The district court twice (once on Molen's motion in limine and once at trial) rejected Molen's offer of evidence that S.Z.'s mother had exposed her to sexual behavior before the reported offense. The evidence was rejected initially as being irrelevant and, at trial, on the ground that any probative value that it might possess was outweighed by countervailing considerations calling for its exclusion under Idaho Rule of Evidence 403. That rule authorizes the exclusion of evidence if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." We review questions of relevance de novo, State v. Raudebaugh, 124 Idaho 758, 766, 864 P.2d 596, 604 (1993), but review determinations under I.R.E. 403 for abuse of the trial court's discretion. State v. Kerchusky, 138 Idaho 671, 675, 67 P.3d 1283, 1287 (Ct. App. 2003).

Idaho appellate courts have not previously addressed the relevance of a child molestation victim's prior exposure to sexual activity,2 but there are scores of opinions from other jurisdictions addressing the admissibility of similar evidence. See Danny R. Veilleux, Annotation, Admissibility of Evidence That Juvenile Prosecuting Witness in Sex Offense Case Had Prior Sexual Experience for Purposes of Showing Alternative Source of Child's Ability to Describe Sex Acts, 83 A.L.R. 4th 685 (1991) and cases cited therein. Nearly all of these cases from other states address evidence of prior molestations of the child victim to show a basis for the child's sexual knowledge, rather than evidence of the child's exposure to adult sexual activity, which is at issue here.3 These decisions are nevertheless instructive regarding the relevance issue that confronts us. These courts' determinations of admissibility have generally turned very closely upon the particular facts of the charged offense and specifics of the proffered evidence, but the vast majority of courts have held that evidence of a child victim's prior exposure to sexual conduct may be relevant to show an alternative basis for the child's sexual knowledge. For example, in a case involving four child victims, the Wisconsin Supreme Court held the trial court had erred in excluding evidence of a prior sexual assault on one of the children, a seven-year-old boy. The Court explained:

The inference that [the victim] could not possess the sexual knowledge he does unless Ms. Pullizano sexually assaulted the children greatly bolsters [the victim's] allegations. In order to rebut that inference, Ms. Pullizano must establish an alternative source for [the victim's] sexual knowledge. Evidence of the prior sexual assault is therefore a necessary and critical element of Ms. Pullizano's defense.

State v. Pulizzano, 456 N.W.2d 325, 334-35 (Wis. 1990). Likewise, the Supreme Judicial Court of Maine opined:

Where the victim is a child, as in this case, the lack of sexual experience is automatically in the case without specific action by the prosecutor. A defendant therefore must be permitted to rebut the inference a jury might otherwise draw that the victim was so naive sexually that she could not have fabricated the charge.

State v. Jacques, 558 A.2d 706, 708 (Me. 1989).

Another illustrative decision is LaJoie v. Thompson, 217 F.3d 663 (9th Cir. 2000), a federal habeas corpus action in which the defendant contended that the Oregon courts had violated his constitutional right to present a complete defense by excluding evidence that the victim of his alleged sexual abuse, a minor child, had been sexually assaulted by others. The evidence was offered to provide an alternate source of the victim's ability to describe sexual acts and as an alternative explanation for the medical evidence of abuse that the prosecution would be offering. After noting that the excluded evidence was relevant to explain injuries to the young girl's hymen, the court said The evidence of [the victim's] rape by [a third party] was also relevant to show that [victim] could have learned about sexual acts and male genitalia other than through rape by LaJoie. . . . The jury did not hear of the situations from which [victim] could have gained knowledge about what a sexually-aroused man looks like, or what vaginal penetration was. If this evidence had been admitted, the jury could have concluded that [victim] knew this from her abuse by [the third party].

Id. at 671-72.

Like the courts whose decisions are discussed above, we conclude that evidence of an alternate source for a child's knowledge of sexual matters may be relevant in the trial of a sexual molestation charge. However, the relevance of a child's prior exposure to sexual conduct (either as a victim or as an observer) will depend upon the facts of each case. One important factor is the age of the child when he or she reports and describes the sexual assault. That is, the probative value of evidence of a child's alternative source of sexual knowledge will ordinarily be inversely proportional to the child's age, for the younger the child, the stronger the likelihood of a jury inference that the child would be too sexually innocent to have fabricated the allegations against the defendant. As the victim's age rises, the risk of such an inference will diminish and may evaporate.

A second factor in the relevance analysis is the degree of similarity between the acts of which the defendant is accused and the prior sexual activity to which the child was exposed. Logical relevance turns upon whether the child's prior sexual experience or observation would have enabled the child to describe acts of the particular type that she now ascribes to ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT