State v. Neyhart
| Decision Date | 08 June 2016 |
| Docket Number | Docket No. 42923 |
| Citation | 160 Idaho 746,378 P.3d 1045 |
| Court | Idaho Court of Appeals |
| Parties | STATE of Idaho, Plaintiff–Respondent, v. Samuel C. NEYHART, Defendant–Appellant. |
Sara B. Thomas, State Appellate Public Defender; Erik R. Lehtinen, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.
Samuel C. Neyhart appeals from the district court's judgment of conviction on three counts of lewd conduct with a minor under sixteen. Neyhart raises three issues on appeal. First, he argues there was insufficient evidence to support his convictions. Next, he maintains the prosecutor committed misconduct by commenting on Neyhart's silence at trial. Last, Neyhart contends the prosecutor committed misconduct by using an inadmissible hearsay document for impeachment purposes, and the district court erred by allowing the prosecution to use the document without laying a proper foundation. For the reasons explained below, we affirm.
In November 2010, the mother of a six-year-old girl reported to authorities that Neyhart had sexually molested her daughter, K.S. The police investigated the allegations, conducting interviews with K.S., Neyhart, and other individuals. In June 2013, Neyhart was charged with three counts of lewd conduct with a minor under sixteen, Idaho Code § 18–1508.1 The State specifically accused Neyhart of engaging in genital-genital contact with K.S.
During the trial, the State presented testimonial evidence from a number of witnesses. K.S. testified that her uncle, Neyhart, sexually molested her in his fifth-wheel trailer on three separate occasions. Her testimony revealed that in each instance, the sexual contact took place in Neyhart's bed where he "messed with [her] bottom." She testified that on the third occasion, which took place on Friday, October 29, 2010, Neyhart "started messing" with her while they were in bed and under the covers. Neyhart then "peed in [her] underwear," which made her underwear wet. K.S.'s mother testified that K.S. told her what had happened with Neyhart on Sunday, October 31. The mother explained that she then examined K.S.'s body and discovered fingerprint-shaped bruises on her legs. She also noticed that K.S.'s vagina was "very red." She took photos of K.S.'s body and gave the photos to the police. A detective then testified that on November 6, 2010, K.S.'s father turned over the clothing K.S. had been wearing on October 29 to the police. These items included a pair of junior-sized pink underwear featuring images of monkeys. Forensic scientists then testified that the pink underwear tested positive for the presence of semen and that the semen on the pink underwear matched the profile generated from an oral swab taken from Neyhart. Finally, the pediatrician that had evaluated K.S. during a CARES (Child at Risk Evaluation Services) interview on November 2 testified about what K.S. had said during the interview. The pediatrician also testified that, during a physical evaluation, she observed bruising on the upper inner part of K.S.'s thighs.
The State also presented physical evidence for the jury to consider. The State showed the jury the articles of clothing K.S. was wearing on October 29, including the pink underwear; played a recording of the CARES interview between K.S. and the pediatrician; and provided the pictures taken by K.S.'s mother. Additionally, the State played two recordings showing the police interviews of Neyhart conducted in 2010 and 2013.
The defense presented testimonial evidence from Neyhart's wife, Neyhart's mother, and Neyhart himself. Neyhart's wife testified that the junior-sized pink underwear with the monkeys belonged to her and that Neyhart's semen was on the underwear because they had been intimate on the day she wore them. She also testified that she had previously observed K.S.'s parents discipline K.S. by pinching her thighs, and she had observed K.S.'s vaginal area being red and bleeding prior to the alleged sexual contact. Then, Neyhart's mother testified that she saw K.S.'s aunt near Neyhart's trailer a few days after the alleged sexual contact and that the aunt was carrying what appeared to be rolled up panties in her hand. Neyhart then testified as to his version of events on the days in question, asserting he never laid in bed with K.S., and he never had any sexual contact with her. He also testified that the pink panties belonged to his wife.
Numerous times during trial, the prosecutor called into question why Neyhart and his wife both waited until trial to come forward with information that, while assisting K.S. in using the bathroom, Neyhart's wife had observed K.S.'s vaginal area as being "red and sore" and "bleeding" prior to the alleged sexual contact. The prosecutor also questioned why they both waited until trial to reveal that the semen-stained pink underwear belonged to Neyhart's wife. The prosecutor similarly questioned Neyhart's mother as to why she waited until trial to come forward with information that she had seen K.S.'s aunt carrying panties near Neyhart's trailer shortly after the alleged sexual contact.
At one point during trial, the prosecutor attempted to discredit Neyhart with his pretrial statement to police investigators that he was taking Cymbalta, a prescription medication that allegedly caused him to experience semen leakage. During the police interview, Neyhart had suggested that his leakage issue might explain how his semen ended up on K.S.'s underwear. The prosecutor used a document she referred to as his "pharmacy record" to show that Cymbalta was absent from the record's list of medications prescribed during the relevant time period. Neyhart's counsel objected several times to the prosecutor's use of this document, arguing that it improperly assumed facts in evidence and was inadmissible hearsay. The prosecutor repeatedly responded that she was using the document to refresh Neyhart's memory. The district court overruled each objection and allowed the prosecutor to use the document.
Ultimately, a jury returned a verdict of guilty on each of the three counts of lewd conduct with a minor. Neyhart filed a renewed motion for judgment of acquittal and a motion for a new trial or mistrial. The district court denied both motions, and Neyhart filed a motion for reconsideration. Again, the district court denied Neyhart's motion. Neyhart was sentenced to three concurrent life sentences, with ten years determinate. Neyhart filed an Idaho Criminal Rule 35 motion for reduction of his sentences, which was denied. Neyhart timely appeals from the district court's judgment of conviction.
Neyhart first argues there was insufficient evidence to support the jury's finding of guilt on each of the three counts of lewd conduct with a minor. Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt will not be overturned on appeal where there is substantial evidence upon which a reasonable trier of fact could have found that the prosecution sustained its burden of proving the essential elements of a crime beyond a reasonable doubt. State v. Herrera–Brito , 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998) ; State v. Knutson , 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App. 1991). We will not substitute our view for that of the trier of fact as to the credibility of the witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn from the evidence. Knutson , 121 Idaho at 104, 822 P.2d at 1001 ; State v. Decker , 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light most favorable to the prosecution. Herrera–Brito , 131 Idaho at 385, 957 P.2d at 1101 ; Knutson , 121 Idaho at 104, 822 P.2d at 1001.
Neyhart maintains the State failed to present sufficient evidence that genital-genital contact occurred. He points to the following exchange between the prosecutor and K.S. at trial to demonstrate that K.S. could not distinguish between Neyhart's genitalia and his buttocks or anus:
From that dialogue, Neyhart argues that the State failed to establish that he touched K.S.'s genitalia with his genitalia. Neyhart further notes that K.S. never saw what touched her and did not know whether what was touching her was soft or hard. And, while K.S. informed law enforcement that Neyhart touched her with his "private," there was never clarification as to what "private" meant. Lastly, Neyhart maintains the presence of semen on K.S.'s underwear does not necessarily mean Neyhart's genitalia touched her, since genital-genital contact is not required for Neyhart to discharge semen.
The record reflects, however, the jury in fact had sufficient evidence to find Neyhart guilty of lewd conduct with a minor. The evidence in this case includes the victim's testimony that Neyhart got into bed with her on three separate occasions while inside Neyhart's trailer. On the first occasion, Neyhart "kind of yelled at [her]" to get into the bed. K.S. testified that on each occasion, he would remove her tights and they would lie on their sides facing each other under the covers. K.S. also testified that while facing Neyhart in bed, he would lift her leg over his hip and begin to push against her "bottom" with his "bottom." She testified that Neyhart "messed with" h...
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