State v. Ogden

• Docket Number: Docket Nos. 48301 & 48302
• Decision Date: 02 November 2022
• Citation: 519 P.3d 1198
• Parties: STATE of Idaho, Plaintiff/Respondent, v. Darin M. OGDEN, Defendant/Appellant.
• Court: Idaho Supreme Court

519 P.3d 1198

STATE of Idaho, Plaintiff/Respondent,

v.Darin M. OGDEN, Defendant/Appellant.

Docket Nos. 48301 & 48302

Supreme Court of Idaho, Boise, June 2022 Term.

Filed: November 2, 2022

Nevin, Benjamin & McKay LLP, Boise, attorney for Appellant. Dennis Benjamin argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for Respondent. Andrew Wake argued.

BEVAN, Chief Justice.

Darin Ogden appeals from his convictions for one count of sexual exploitation of a child and one count of sexual battery. Ogden argues the convictions should be vacated because of several erroneous evidentiary rulings made by the district court, which deprived Ogden of his constitutional right to confront witnesses and present a defense. Alternatively, Ogden argues his sentences should be vacated because the court considered unreliable information related to earlier conduct for which he had been acquitted. Ogden also requests that the presentence investigation report be redacted to omit those allegations.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 4, 2018, Shelly Millet called 911 around 3 a.m. to report that her 16-year-old daughter, V.H., had been kidnapped by a drug dealer named Michael Roller. Millet was with Ogden, a friend from high school, at the time she called police. Millet advised officers Ogden hangs out at her house and V.H. views him as a "father figure." About thirty minutes later, V.H. called Millet and officers went to bring her home. After V.H. returned home, she informed one of the responding officers, Detective Brady, that she met Roller through Ogden, but the two do not get along. Based on Detective Brady's conversation with V.H., he became concerned Roller and Ogden had been grooming V.H. for a sexual relationship. Millet looked through V.H.’s phone and found several explicit photos and videos of V.H. and gave officers permission to confiscate the phone. V.H. admitted she had taken the photos and videos at Roller's direction. Officers reviewed V.H.’s phone and also discovered text messages in which she discussed having sexual intercourse with Ogden.

Detective Brady spoke with V.H. again on September 6, 2018. In reviewing V.H.’s phone, Detective Brady found hundreds of phone calls and texts between V.H. and Ogden. During another interview with Detective Brady on September 12, 2018, V.H. made allegations against Ogden. The September 12, 2018, police report is not in the record, so it is unclear what specific allegations V.H. made at that time; however, the next day, officers obtained a warrant to seize Ogden's cell phone. Officers found explicit photographs of V.H. on Ogden's phone.

Grand juries indicted Ogden on four counts of lewd conduct with a minor under sixteen, one count of sexual battery of a minor child sixteen or seventeen, one count of disseminating material harmful to minors, and, in a consolidated case, one count of sexual exploitation of a child. A jury ultimately acquitted Ogden of the four counts of lewd conduct with a minor under sixteen and one count of disseminating materials harmful to minors. The jury found Ogden guilty of sexual battery and sexual exploitation of a minor.

The sexual battery charge alleged that "between April 17, 2018, and September 2018, Ogden committed sexual battery by having lewd contact with and/or upon the body of a minor, V.H. a child sixteen (16) or seventeen (17) years of age, to-wit: sixteen (16) years old, by genital-genital contact and/or manual-genital contact and/or oral-genital contact, with the intent to arouse, appeal to, or gratify the lust, passion, or sexual desire of the defendant and/or said minor child, where the defendant was over the age of eighteen (18) years, to-wit: forty-four (44) years and at least five (5) years older than V.H."

The sexual exploitation of a child charge alleged that "between April 2016 and September 2018, Ogden did knowingly and willfully commit sexual exploitation of a child by causing, inducing or permitting V.H., a child under the age of eighteen, to wit: fifteen (15) years old to engage in, or be used for, explicit sexual conduct for the purpose of producing or making an image or images which exploited V.H. by photographing her nude as she was bent over. The complaint specified the photograph was taken "on or about the 30th day of July, 2018."¹

Prior to trial, Ogden filed several motions in limine in support of his defense that he was "set up" in this case. Ogden alleged V.H. had essentially joined a drug gang, was doing drugs, and hanging out with a known enemy of Ogden – Michael Roller.² Ogden also pointed to another third party's involvement with V.H., Ty Birchfield, and noted that Birchfield was under federal indictment for running a drug operation.³ Ogden alleged that V.H. had lied and stated Ogden abused her to cover for Roller and Birchfield.

Ogden's first motion in limine sought to introduce expert testimony pursuant to Idaho Rule of Evidence 702, concerning "the fact that drug gangs exist and operate in Boise, Idaho, general information on how drug gangs operate, to include gang tactics, which are topics that are outside of a likely jurors [sic] knowledge and experience." The State filed a motion to exclude Ogden's expert witness, arguing Ogden's expert witness disclosure was deficient and irrelevant.

A few months later Ogden filed another motion in limine, this time asking the district court to allow the defense to cross-examine V.H. concerning her relationship, sexual behavior, and drug use with Roller during the months of July and August 2018 pursuant to Idaho Rule of Evidence 412(b)(4) and (b)(5). Ogden argued V.H.’s involvement with Roller provided motive for her to lie about her alleged sexual contact with Ogden. Ogden alleged V.H.’s sexual behavior with Roller and others in the months of July and August 2018 culminated in Millet and Ogden calling 911 and was the catalyst for the charges alleged against Ogden.

At a hearing on the motion, Ogden's counsel explained that the defense theory of the case was that Ogden was "set up." Ogden's counsel cited the chronology of V.H.’s internet searches and communications to argue that she did not start educating herself on sexual conduct until after she started having sex with Roller in August 2018, despite claiming that Ogden took her virginity in April of 2018. The defense also argued that when V.H. first met with detectives she was very explicit with the details of her experiences, and yet, when she told them about sex with Ogden there were no details whatsoever.

Defense counsel claimed that Ogden should be allowed to introduce evidence of V.H.’s sexual activity under Idaho Rule of Evidence 412(b)(4) because at the time V.H. made the allegations against Ogden, she was sexually active with Michael Roller, and "[s]he then makes allegations against [Ogden] of events that happened way back in the past." Ogden argued that the exception in Rule 412(b)(4) extends beyond the events charged to the time an allegation is made.

The district court was not persuaded that this type of evidence fell under one of the exceptions in Idaho Rule of Evidence 412, stating "[t]hat's not what the rule addresses. The rule addresses sexual behavior. And the purpose of the rule is to insulate victims from having that inquired upon unless it meets the specific exceptions under the rule, right?" The court explained that whether the victim was engaging in sexual behavior with this third party at the time she reported Ogden's conduct to police—months after the alleged contact with Ogden—was irrelevant because "those aren't the events that gave rise to the events of the crime with which Mr. Ogden is charged." The court also recognized "I don't understand what motive she would have at this point to try and protect [Roller] since he is already in prison having either been found guilty of or admitted to the conduct with which he was charged with respect to her."

Defense counsel explained they intended to introduce the evidence to show that V.H. has a propensity to lie. For example, text messages from August 8th show that V.H. told her mother she was with Ogden, but her "kiss list"⁴ showed she was having sex with Ty Birchfield on that date. Defense counsel argued this was relevant because Ogden had already sold the Winnebago, where the explicit photograph was taken, to Birchfield; thus, the photograph underpinning the sexual exploitation charge could have been taken by Birchfield. Defense counsel argued there were numerous things like this in the timeline that showed V.H.’s story did not match up. Ultimately, defense counsel explained they were not trying to malign V.H.’s character, but argued it was relevant and important to recognize that up until the point V.H. started hanging out with Birchfield and Roller, she was not searching the internet for information about sex, she did not seem to have much sexual knowledge, and she was not acting like someone who had become sexually active.

The district court rejected the defense's argument:

But it's just, she was bad because he was bad. And how far do we want to go with that? How attenuated does your argument become if you keep adding people, gangs. You're not going to get to talk about gangs. You're not going to get to talk about Ty Burchfield [sic], his federal charges, unless there's some relevant reason to do that that I haven't been told about yet.

For now, I'm going to deny the motion in limine because I haven't heard a substantial basis within 412 to find an exception.

Defense counsel asked for the opportunity to re-argue the issue five days before trial. The district court agreed, as long as new evidence was presented. Before trial, Ogden filed a second Rule 412(b) motion in limine, seeking to cross-examine V.H. concerning her relationship and sexual behavior with Birchfield at the Winnebago featured in the State's photograph connected to the sexual exploitation charge Ogden wanted to question V.H. about the presence of Ty Birchfield on her kiss list in...