State v. Oar

• Decision Date: 20 August 1996
• Docket Number: No. 21930,21930
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Patrick S. OAR, Defendant-Appellant. Lewiston, May 1996 Term
• Court: Idaho Supreme Court

Page 599

924 P.2d 599

129 Idaho 337

STATE of Idaho, Plaintiff-Respondent, v. Patrick S. OAR, Defendant-Appellant.

No. 21930.

Supreme Court of Idaho,

Lewiston, May 1996 Term.

Aug. 20, 1996.

Rehearing Denied Oct. 28, 1996.

Knowlton, Miles & Mercia, Lewiston, for appellant. Charles E. Kovis argued.

Alan G. Lance, Attorney General, Boise, for respondent. L. LaMont Anderson argued.

McDEVITT, Chief Justice.

Patrick S. Oar (Oar) appeals from his judgment of conviction and sentence entered after a jury found him guilty of two counts of sexual battery of a minor child sixteen or seventeen years of age.

I. BACKGROUND AND PRIOR PROCEEDINGS

Oar was originally charged with two counts of sexual battery of a minor child sixteen or seventeen years of age in violation of I.C. § 18-1508A and of being a persistent violator of the law pursuant to I.C. § 19-2514. The victims are seventeen-year-old Dawn G. and sixteen-year-old Rachelle L., whom Oar met at a dance club where admittance is restricted to adults who are at least eighteen years old. Oar was with Ryan Anderson, a social acquaintance, who heard Oar claim he was looking for a "couple girls that were big breasted, that would like to model for him." Oar testified that he was in the marketing, advertising and health club business and that as part of his business he used prospective models for various promotions. After some discussion about modeling with Dawn and Rachelle, arrangements were made for the girls to contact Oar the following week.

A meeting was subsequently scheduled to further discuss the possibility of Dawn and Rachelle doing some modeling. At the meeting Oar showed both Dawn and Rachelle various photographs. Oar also discussed the signing of a contract with Dawn and Rachelle, but explained there could be a problem because neither girl was eighteen years old. At the end of the meeting arrangements were made to meet Oar later that week.

The following Saturday Oar had Dawn and Rachelle ride with him to Lewiston for some "practice shots." On the way to Lewiston, Dawn and Rachelle drank a beer provided by Oar. Oar ultimately took Dawn and Rachelle to a motel in Lewiston. Oar mixed some alcoholic drinks for the girls and conversed with them while watching television.

Eventually, Anderson arrived, but without any camera equipment. Oar then instructed Dawn and Rachelle to change into a flannel or corduroy shirt provided by Oar. After the girls changed, Oar provided Dawn with a beer bottle and began instructing and directing Dawn how to pose. Oar also provided Rachelle with a beer bottle and began giving her similar instructions. Oar directed the girls to remove all their clothing except their panties and the shirts he had provided. Anderson also became involved in the modeling and, at Oar's instruction, removed his clothing to his underwear. Rachelle then went to the bathroom and Anderson had intercourse with Dawn while Oar was watching. Dawn later went to the bathroom.

At one point Oar also removed Rachelle's shirt, tugged on her bra and tried to pull down her pants. Anderson also began pulling on Rachelle's bra and trying to pull down A police officer saw Dawn and Rachelle and took them to the station where they were interviewed. Oar was arrested at the motel after climbing out of the bathroom window of his room as police were attempting to enter his front door to serve a search warrant.

her pants. Oar finally gave up and went to the bathroom. Dawn came out of the bathroom and ran out the front door without her coat or shoes.

Anderson was prosecuted and plead guilty to rape, I.C. § 18-6101(1). He received a suspended three year sentence and was placed on probation.

Oar filed a motion to dismiss, claiming, among other things, that I.C. § 18-1508A is unconstitutionally vague, primarily because the terms "sexual act" and "sexual contact" are not specifically defined in the statute. The district court held that I.C. § 18-1508A is not unconstitutionally vague.

During Oar's jury trial, he submitted jury instructions requesting the district court instruct the jury that it is a defense to the crime of sexual battery of a minor child sixteen or seventeen years of age if the "defendant did not know the age of the minor child ... or that the defendant reasonably and in good faith believed that the minor child ... was eighteen (18) years of age or older." Oar also requested the district court to instruct the jury that it is a defense to the crime of sexual battery of a minor child sixteen or seventeen years of age if the minor consents. Both instructions were rejected by the district court who instructed that neither consent nor mistake of age are defenses to sexual battery of a minor child sixteen or seventeen years of age.

The jury found Oar guilty of both counts of sexual battery of a minor child sixteen or seventeen years of age. The district court sentenced Oar to serve, consecutively, two unified sentences of fifteen years with two and one-half years fixed. Oar appealed to this Court.

II.

STATEMENT OF ISSUES

Oar raises the following issues on appeal.

1. Whether it is a defense to sexual battery of a minor child sixteen or seventeen years of age if the defendant honestly and reasonably believed that the minor was at least eighteen years of age.

2. Whether it is a defense to sexual battery of a minor child of sixteen or seventeen years of age if the minor consented to defendant's alleged conduct.

3. Whether I.C. § 18-1508A is unconstitutionally vague.

4. Whether the district court abused its discretion when it sentenced defendant to a minimum term of imprisonment of 2.5 years for each count of sexual battery and not more than 15 years for each count, for a total minimum term of confinement of five (5) years.

III. MISTAKE OF AGE IS NOT A DEFENSE TO SEXUAL BATTERY OF A MINOR CHILD OF SIXTEEN OR SEVENTEEN YEARS OF AGE

The standard of review applied by this Court to the question of whether the jury was properly instructed is a question of law which this Court freely reviews. State v. Gleason, 123 Idaho 62, 65, 844 P.2d 691, 694 (1992).

Oar contends the district court erred in concluding that mistake of age is not a defense in a prosecution of sexual battery of a minor child sixteen or seventeen years of age. We disagree. Oar primarily relies upon I.C. § 18-201(1) which provides:

All persons are capable of committing crimes, except those belonging to the following classes:

(1) Persons who committed the act or made the omission charged, under an ignorance or mistake of fact which disproves any criminal intent.

I.C. § 18-201(1). Oar further relies upon this Court's opinion in State v. Stiffler, 117 Idaho 405, 788 P.2d 220 (1990), contending Sexual crimes involving minors have long been recognized as an exception to the concept that a criminal accused must harbor an intent to commit every element of the crime charged. This Court in State v. Suennen, 36 Idaho 219, 209 P. 1072 (1922), in dicta, stated the historical perspective:

that I.C. § 18-1508A (sexual battery of a minor child) is a specific intent crime, and therefore mistake of age is a defense.

In prosecutions for offenses against minor females, such as statutory rape and abduction for any immoral purpose, it is generally held that lack of knowledge on the part of the defendant as to the age of the girl, or even belief on his part that she is over the age mentioned in the statute, is no defense.

Suennen, 36 Idaho at 221, 209 P. at 1072.

This Court in State v. Herr, 97 Idaho 783, 554 P.2d 961 (1976), again stated in dicta:

Sexual offenses against minors have long been a recognized judicial exception to the general rule that a mistake of fact is a defense to a criminal charge. State v. Suennen, supra. It is an exception the legislature must surely have had in mind when it enacted I.C. § 18-6607.

Herr, 97 Idaho at 788, 554 P.2d at 966 (citation omitted).

This historical judicial construction of sexual crimes against minor females clearly was known by the legislature when it enacted I.C. § 18-1508A. In the words of the United States Supreme Court, when the legislature:

borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.

Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 250, 96 L.Ed. 288 (1952); see also Lorillard v. Pons, 434 U.S. 575, 583, 98 S.Ct. 866, 871, 55 L.Ed.2d 40 (1978) (" '[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country they are presumed to have been used in that sense unless the context compels to the contrary.' ") (quoting Standard Oil v. United States, 221 U.S. 1, 59, 31 S.Ct. 502, 515, 55 L.Ed. 619 (1911)).

Thus, we are persuaded that the legislature, in codifying the crime of sexual battery of a minor child, intended to incorporate the immemorial tradition of the common law that a mistake of fact as to the complainant's age is no defense.

IV. CONSENT IS NOT A DEFENSE TO I.C. § 18-1508A

The district court instructed the jury that consent of the minor child is not a defense to I.C. § 18-1508A. Oar argues that the district court should have instructed the jury that consent is a defense to I.C. § 18-1508A.

Although this Court has not ruled specifically that consent is not a defense to I.C. § 18-1508A, it has held that consent is not a defense to I.C. § 18-1508 (lewd conduct with a minor under sixteen). State v. Herr, 97 Idaho at 787, 554 P.2d at 965. The Herr Court reasoned that because "a child under sixteen cannot as a matter of law give her consent," consent cannot be a defense...