State v. Moore

• Decision Date: 20 July 1998
• Docket Number: No. 23131,23131
• Citation: 965 P.2d 174,131 Idaho 814
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Walter Dee MOORE, Defendant-Appellant. Boise, March 1998 Term
• Court: Idaho Supreme Court

Page 174

965 P.2d 174

131 Idaho 814

STATE of Idaho, Plaintiff-Respondent, v. Walter Dee MOORE, Defendant-Appellant.

No. 23131.

Supreme Court of Idaho,

Boise, March 1998 Term.

July 20, 1998.

Wiebe & Fouser, Canyon County Public Defender, Caldwell, for defendant-appellant. Klaus Wiebe argued.

Alan G. Lance, Attorney General, Catherine O. Derden, Deputy Attorney General, Boise, for plaintiff-respondent. Catherine O. Derden argued.

TROUT, Chief Justice.

This case involves an appeal from a conviction and sentence on one count of lewd conduct with a minor child under sixteen.

I. BACKGROUND

On May 5, 1995, five-year-old S.K. told her parents that a man at day care she called "Uncle Ted" had touched her genitals. Uncle Ted was later identified as the appellant Walter Moore. Moore was the father-in-law of the owner of the day care that S.K. attended briefly in the fall of 1993 and then again from October, 1994 until May, 1995. The day care was in the home of Moore's daughter-in-law. S.K. had told the day care owner that Uncle Ted had been touching her two days before she told her parents. The owner did not notify the police or S.K.'s parents of the allegation, but asked that Moore not come to her house anymore. Moore's wife was a back-up babysitter at the day care and Moore would sometimes accompany his wife when she babysat. In addition, Moore and his wife would occasionally visit the day care. Moore and his wife had lived in a camper trailer at the day care from about July 1994 until August or September of 1994. They then moved their camper trailer to Moore's Upon hearing S.K.'s allegations, her parents first called the day care owner who was not home; they then called the police. Detective Robert Mack of the Boise Police Department interviewed S.K.'s parents late on the evening of May 5, but he did not interview S.K. Detective Mack arranged for S.K. to be examined at the St. Luke's CARES unit. On May 10, S.K. was interviewed by Patty Megason, a pediatric nurse at the CARES unit. A physical examination was conducted on May 24 by Dr. Gabica, who works with the CARES unit. The physical examination revealed no physical evidence of sexual abuse.

parents home in Emmett. During this time, the Moores owned a house in La Pine, Oregon, which they were trying to sell.

Detective Mack was finally able to meet with the day care owner on May 15 and told her of the allegations. Detective Mack also contacted Moore on the afternoon of May 17 and arranged for a meeting the next afternoon. After talking to Detective Mack, Moore contacted a local attorney. This attorney informed Moore that he did not handle criminal cases and referred him to Dennis Benjamin. Benjamin advised Moore not to talk to the police and that since no charges were pending, Moore was free to return to his home in Oregon. Moore and his wife then left for La Pine, Oregon on May 18. Moore called his supervisor at the Albertson's where he worked and told the supervisor that he had to return to Oregon to testify in a murder trial and would be unable to work for some time.

When Moore did not attend the May 18 meeting, Detective Mack contacted Moore's daughter-in-law, who told him that Moore had returned to Oregon. She also gave Detective Mack the name of the attorney Moore had contacted. Detective Mack called Dennis Benjamin who told him that he had told Moore not to talk to the police. Mack informed Benjamin that he could accompany Moore to the interview, but Benjamin told Mack that he was not representing Moore.

A grand jury indicted Moore on one count of lewd conduct with a minor under sixteen (I.C. § 18-1508). At trial, counsel for Moore objected to the admission of evidence of "flight" by Moore. Specifically, Moore objected to testimony by Detective Mack that Moore failed to attend the scheduled meeting and that other suspects attended such meetings with their attorneys. Moore also objected to testimony from Moore's supervisor about the reason Moore gave for being absent from his job, and testimony by Moore's wife about when the decision to return to Oregon was made. The basis for the objection to the latter testimony was that it violated the husband-wife privilege. Also over defense objection, the trial court admitted testimony by Dr. Gabica regarding statements made by S.K. during his examination of her. During his testimony Dr. Gabica also opined that S.K.'s history was consistent with child sex abuse. As part of its case in chief, the state called Mydell Yeager, a counselor who had examined S.K. Yeager testified that in her opinion S.K. had been sexually abused. The defense did not object to this testimony at trial. The State also produced testimony by Patty Megason who testified about the contents of the interview she had with S.K. This testimony was admitted for impeachment purposes only; however, no limiting instruction to the jury was either requested or given.

The jury returned a verdict of guilty. Moore was sentenced to a term of twenty years in prison with seven years fixed. Moore then filed a motion under I.C.R. 35 to have his sentence reduced. The trial court denied Moore's Rule 35 motion.

Moore challenges his conviction on several grounds. Moore claims the district court erred in admitting evidence of flight based on his return to Oregon, and by preventing Moore from fully explaining why he traveled to Oregon. Moore also challenges the district court's admission of testimony that Moore failed to attend a meeting with police, and testimony by Moore's wife about conversations between Moore and her. Moore also claims the district court committed fundamental error when it allowed Mydell Yeager and Dr. Gabica to testify as experts. Moore also claims that testimony by Dr. Gabica about statements made by S.K. during her medical examination were inadmissible hearsay. Finally Moore challenges his conviction

on the basis that the district court erred in failing to give a limiting instruction regarding the testimony of Patty Megason. Moore challenges his sentence claiming the district court abused its discretion in sentencing Moore to a seven year fixed term and in denying Moore's motion to have his sentence reduced.

II. FLIGHT EVIDENCE

Admission of evidence which is probative on the issue of flight to avoid prosecution requires the trial judge to conduct a two-part analysis. See, State v. Friedley, 122 Idaho 321, 834 P.2d 323 (Ct.App.1992). First, the judge must determine that the evidence is relevant under I.R.E. 401, and second, the judge must determine that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. See, Id. This Court reviews the question of relevancy in the admission of evidence de novo. State v. Raudebaugh, 124 Idaho 758, 864 P.2d 596 (1993). A court's decision that evidence is more probative than prejudicial is reviewed for abuse of discretion. Id.

Moore argues that the district court erred by not making a determination outside the presence of the jury that the evidence offered by the State was indicative of flight. The record shows that the trial judge made a determination that the evidence was relevant. ¹ Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." I.R.E. 401. Contrary to the position taken by Moore, whether the evidence is sufficient to indicate that flight indeed occurred is a question that "should be left to argument to the jury by the parties...." State v. Wrenn, 99 Idaho 506, 508, 584 P.2d 1231, 1233 (1978).

Moore argues that his actions could not have amounted to flight because they occurred weeks after the charged conduct and he did not conceal his whereabouts. To constitute flight, it is not necessary that Moore's departure must have been both immediate and covert. "For departure to take on the legal significance of flight, there must be other circumstances present and unexplained which, together with the departure, reasonably justify an inference that it was done with a consciousness of guilt and in an effort to avoid apprehension or prosecution based on that guilt." Wrenn at 509, 584 P.2d at 1234. The holding in Wrenn contains no requirement that the departure be either immediate or concealed. In the present case, upon learning that police wanted to talk to him about the alleged sexual abuse of S.K., Moore immediately left Idaho and returned to Oregon, giving his employer a false reason to explain his sudden departure. These actions reasonably imply a consciousness of guilt and a desire to flee the jurisdiction in order to avoid prosecution. We therefore agree with the district court that the evidence was relevant and so properly admitted.

Moore also argues that even if the evidence were relevant, it should have been excluded on the basis of prejudice. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...." I.R.E. 403. This rule, however, does not require the exclusion of all prejudicial evidence, but only that which is unfairly prejudicial such that it tends to suggest a decision on an improper basis. State v. Floyd, 125 Idaho 651, 873 P.2d 905 (Ct.App.1994). As discussed below, Moore was allowed to offer alternative explanations for his move to Oregon in order to refute the State's assertion that he was fleeing prosecution. Because Moore was allowed to explain his return to Oregon, we find that the evidence of flight was not unfairly prejudicial. In admitting the evidence the court properly viewed the issue as one of discretion, acted within the boundaries of its discretion, and reached its decision by an exercise of reason. Sun Valley Shopping Ctr. Inc. v. Idaho Power Co., 119 Idaho 87, 803 P.2d 993 (1991). We therefore find that the trial court did not Moore claims that the district court abused its discretion when...