State v. Ozuna

• Decision Date: 07 October 2013
• Docket Number: No. 40165.,40165.
• Citation: 155 Idaho 697,316 P.3d 109
• Court: Idaho Court of Appeals
• Parties: STATE of Idaho, Plaintiff–Respondent, v. Ricardo OZUNA, Jr., aka Richard Ozuna, Jr., Rich Garcia, Ricardo Ozuna, Keanu Ozuna, Richards Ozuna, Defendant–Appellant.

155 Idaho 697

316 P.3d 109

STATE of Idaho, Plaintiff–Respondent,

v.Ricardo OZUNA, Jr., aka Richard Ozuna, Jr., Rich Garcia, Ricardo Ozuna, Keanu Ozuna, Richards Ozuna, Defendant–Appellant.

No. 40165.

Court of Appeals of Idaho.

Oct. 7, 2013.

Review Denied Jan. 22, 2014.

Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy Attorney General, Boise, for respondent.

MELANSON, Judge.

Ricardo Ozuna, Jr., appeals from his judgment of conviction for lewd conduct with a minor child under sixteen and his unified life sentence, with a minimum term of confinement of twenty years, enhanced for having been previously convicted of a sexual offense. Specifically, Ozuna argues that the district court erred by excluding proffered evidence of the victim's sexually transmitted disease and that his sentence is excessive. For the reasons set forth below, we affirm.

I.FACTS AND PROCEDURE

Ozuna was charged with lewd conduct with a minor child under sixteen and a sentencing enhancement for having been previously convicted of a sexual offense. I.C. §§ 18–1508, 19–2520G(2). The fifteen-year-old victim testified that Ozuna had provided her with alcohol and engaged in genital-to-genital contact with her, part of which occurred while she was unconscious. Before trial, Ozuna moved the district court to introduce evidence that the victim had a sexually transmitted disease (STD) at the time the sexual contact occurred and that he had learned of this fact beforehand through a third party.¹ He argued that this evidence corroborated his defense that he had not engaged in sexual intercourse with the victim because he did not want to get the disease. He also sought to introduce evidence that he had not contracted the disease, which he asserted tended to prove he had not had sexual intercourse with the victim. The district court denied the motion and excluded the evidence, finding it inadmissible as reputation or opinion evidence of the victim's past sexual behavior. The district court also determined that admission of the evidence was not constitutionally required because its relevance was questionable and its probative value did not outweigh the danger of creating unfair prejudice against the victim. Ozuna was subsequently found guilty of lewd conduct with a minor child under sixteen and of having been previously convicted of a sexual offense. The district court sentenced Ozuna to a unified term of life imprisonment, with a minimum period of confinement of twenty years. Ozuna appeals.

II.ANALYSIS

A. Exclusion of evidence

1. Exclusion under I.R.E. 412

Ozuna first argues that the district court erred by excluding evidence showing that the victim had an STD, that Ozuna allegedly learned of this from a third party before the alleged sexual contact, and that Ozuna had not since shown any symptoms of the disease. Ozuna contends that this evidence does not fall within the scope of I.R.E. 412, which prohibits a defendant in a sexual crime case from introducing evidence of a victim's past sexual behavior.²

The district court has broad discretion in the admission and exclusion of evidence, and its decision to admit such evidence will be reversed only when there has been a clear abuse of that discretion. State v. Perry, 139 Idaho 520, 521, 81 P.3d 1230, 1231 (2003). When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistent with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

Here, Ozuna asserts that the proffered testimony was not evidence of past sexual behavior governed by I.R.E. 412 because it was being offered not for the truth of the matter asserted but to show his state of mind. However, the district court noted that asking the victim whether she had an STD at the time of the sexual contact would be an inquiry into the truth of the allegation. The district court held that the evidence fell squarely within I.R.E. 412 as reputation or opinion evidence of past sexual behavior because the clear implication of evidence showing that a victim has an STD is that the victim contracted the STD through past sexual activities. As a result, the district court ruled the evidence inadmissible.

Ozuna cites to three cases in support of his argument. Two of the cases are distinguishable because, in those cases, the state had offered evidence of the victim's STD as evidence that the defendant had engaged in sexual contact with the victim, thereby opening the door for rebuttal evidence, which did not occur here. See Reece v. State, 192 Ga.App. 14, 383 S.E.2d 572, 574 (1989) (holding that the trial court erred by excluding defendant's proffered evidence that neither he nor his wife had contracted an STD after the state had introduced evidence that the victim had contracted the disease after the alleged sexual contact); Evans v. Commonwealth, 14 Va.App. 118, 415 S.E.2d 851, 855 (1992) (holding that evidence that the victim waited to report the crime until after she learned she had contracted an STD was relevant and of probative value because it tended to show that the charge may have been false and motivated by ill-will). Only one case cited by Ozuna actually held that evidence of a victim's STD was not evidence of past sexual behavior. See State v. Steele, 510 N.W.2d 661, 666–67 (S.D.1994) (concluding evidence that the victim had an STD, which the defendant did not subsequently contract, was not evidence of prior sexual conduct prohibited under that state's rape shield statute).

However, the majority of other states have held that the issue of a victim's STD or the defendant's lack of that STD is prohibited evidence of past sexual behavior under their respective rape shield laws. See, e.g., Fells v. State, 362 Ark. 77, 207 S.W.3d 498, 502 (2005) (holding that evidence of a victim's HIV-positive status fell under the state's rape shield law as evidence of prior sexual conduct because of the public's general perception of it as an STD); State v. Mitchell, 568 N.W.2d 493, 496 (Iowa 1997) (treating evidence that the victim tested positive for gonorrhea shortly after a sexual assault as evidence of the victim's past sexual behavior under Iowa Rule of Evidence 412 ); State v. Ervin, 723 S.W.2d 412, 415 (Mo.Ct.App.1986) (upholding exclusion of testimony that the victim had gonorrhea under the state's rape shield law because of the inflammatory and prejudicial impact the evidence would have); State v. Cunningham, 164 Or.App. 680, 995 P.2d 561, 568 (2000) (holding that evidence of an STD is tantamount to evidence of past sexual behavior under Oregon Rule of Evidence 412 because STDs generally occur as the result of sexual intercourse or sexual contact); Smith v. State, 737 S.W.2d 910, 915 (Tex.Ct.App.1987) (analyzing proffered evidence that the victim had gonorrhea on date of rape examination as evidence of the victim's previous sexual conduct under Texas rape shield law); State v. Jarry, 161 Vt. 629, 641 A.2d 364, 366 (1994) (analyzing proffered evidence that the victim had chlamydia on the date of the rape examination as evidence of the victim's prior sexual conduct under Vermont's rape shield law). We believe that the better approach is to recognize that evidence related to whether a victim had an STD or whether the defendant thought the victim had an STD at the time of an alleged sex crime is evidence of a victim's past sexual behavior. Evidence that the defendant subsequently did not contract that disease would not be relevant without first establishing that the victim had an STD. Admissibility of such evidence is governed by I.R.E. 412. Therefore, the district court did not abuse its discretion by treating the STD evidence as evidence of past sexual behavior under I.R.E. 412.

2. Right to present a defense

Ozuna further argues that exclusion of the proffered evidence violated his constitutional right under the Sixth and Fourteenth Amendments to the United States Constitution to present a full defense. Ozuna asserts that the evidence should have been admitted to allow him to explain and corroborate his claim that he did not have sexual contact with the victim because he did not want to contract the STD he believed she had and because he did not subsequently contract the disease.

A defendant's Sixth Amendment right to present a defense may be limited by I.R.E. 412. State v. Self, 139 Idaho 718, 722, 85 P.3d 1117, 1121 (Ct.App.2003). A defendant has no right to present irrelevant evidence; even if evidence is relevant, it may be excluded in certain cases. State v. Peite, 122 Idaho 809, 814, 839 P.2d 1223, 1228 (Ct.App.1992). The state has a legitimate interest in protecting rape victims against unwarranted invasions of privacy and harassment regarding their sexual conduct. See Michigan v. Lucas, 500 U.S. 145, 149–50, 111 S.Ct. 1743, 1746–47, 114 L.Ed.2d 205, 211–14 (1991) ; Delaware v. VanArsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, 682–84 (1986). Admission of evidence of an alleged victim's past sexual behavior is constitutionally required only in extraordinary circumstances. Peite, 122 Idaho at 815, 839 P.2d at 1229. Accordingly, trial judges retain wide discretion under the Confrontation Clause to impose reasonable limits on cross-examination and introduction of evidence based on concerns about—among other things—harassment, prejudice, confusion of the issues, witness safety, or interrogation that is repetitive or only marginally relevant. VanArsdall, 475 U.S. at 679, 106 S.Ct. at 1435, 89 L.Ed.2d at 682–84; Self, 139 Idaho...