State v. Rossignol

• Decision Date: 12 June 2009
• Docket Number: No. 34374.,34374.
• Citation: 147 Idaho 818,215 P.3d 538
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Donald Roger ROSSIGNOL, Jr., Defendant-Appellant.
• Court: Idaho Court of Appeals

215 P.3d 538

147 Idaho 818

STATE of Idaho, Plaintiff-Respondent, v. Donald Roger ROSSIGNOL, Jr., Defendant-Appellant.

No. 34374.

Court of Appeals of Idaho.

June 12, 2009.

Review Denied September 1, 2009.

Greg S. Silvey, Kuna, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Daniel W. Bower, Deputy Attorney General, Boise, for respondent.

PERRY, Judge.

Donald Roger Rossignol, Jr., appeals from his judgment of conviction for three counts of lewd conduct with a minor under sixteen years of age, one count of sexual abuse of a child, and being a persistent violator. For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURE

Rossignol was initially charged with three counts of lewd conduct and one count of sexual abuse in 2005 for inappropriate sexual contact with his daughter. Rossignol's daughter alleged that Rossignol had shown her pornography on his computer and then inappropriately touched her. A search of Rossignol's computer revealed numerous pornographic images and movies and several stories regarding incest. Rossignol's daughter was seven years old at the time the abuse occurred. After his initial appearance, Rossignol was released on his own recognizance.

Based on the allegations in this case, a child protection case was initiated. Rossignol testified during the child protection case. Alleging that Rossignol had provided false testimony during that hearing, the state filed perjury charges against Rossignol. The state then filed a motion to increase Rossignol's bail in this case to ensure his future appearance. A hearing was set on the motion to increase bail. Rossignol left the jurisdiction, did not appear at the hearing to increase bail, and his initial trial date was vacated. Rossignol turned himself in to authorities several months later and a new trial date was set. The state thereafter amended the information to include an allegation that Rossignol was a persistent violator.

Numerous motions in limine were filed by both Rossignol and the state. Additionally, a hearing was conducted to determine if the victim was competent to testify. At that hearing, Rossignol wished to question a psychologist who had treated the victim and diagnosed the victim with reactive attachment disorder. The victim invoked the psychologist-patient privilege pursuant to the Idaho Rules of Evidence, and the district court denied Rossignol the opportunity to question the psychologist at length about what the victim had disclosed to her. The district court thereafter determined that the victim was competent to testify at trial.

Rossignol's defense at trial was that the victim's reactive attachment disorder affected her relationship with her father, that the victim learned terminology related to sexual abuse from her experience living with her mother in Wyoming, and that Rossignol had committed no inappropriate acts with his daughter. Rossignol's first trial ended in a mistrial when the jury could not reach a unanimous verdict. Rossignol's second trial resulted in a guilty verdict for three counts of lewd conduct with a minor under sixteen years of age, I.C. § 18-1508, one count of sexual abuse of a child, I.C. § 18-1506, and being a persistent violator, I.C. § 19-2514. Rossignol appeals.

II. ANALYSIS

A. Evidentiary Issues

On appeal, Rossignol challenges several evidentiary rulings by the district court. Specifically, Rossignol asserts the district court erred in admitting evidence related to his flight from the jurisdiction, admitting pornographic evidence and incest stories recovered from his computer, admitting a transcript from an interview between the victim and a detective, and the district court's determination forbidding Rossignol from extensively questioning the victim's psychologist at a hearing to determine if the victim was competent to testify at trial.

1. Flight

Rossignol asserts that the district court erred in allowing evidence at trial that he failed to appear at a hearing on the state's motion to increase bond. Specifically, Rossignol contends that the evidence of flight is irrelevant and does not demonstrate consciousness of guilt to the lewd conduct and sexual abuse charges because he also failed to appear on the subsequent charge of perjury. In the alternative, Rossignol argues that the probative value of the evidence of flight is substantially outweighed by the danger of unfair prejudice.

Escape or flight is one of the exceptions to the general rule prohibiting evidence of prior bad acts or crimes. State v. Cootz, 110 Idaho 807, 814, 718 P.2d 1245, 1252 (Ct.App.1986). Evidence of escape or flight may be admissible because it may indicate a consciousness of guilt. Id. However, the inference of guilt may be weakened when a defendant harbors motives for escape other than guilt of the charged offense. Id.

Admission of evidence which is probative on the issue of flight to avoid prosecution requires the trial court to conduct a two-part analysis. State v. Moore, 131 Idaho 814, 819, 965 P.2d 174, 179 (1998). First, the trial court must determine that the evidence is relevant under I.R.E. 401; and, second, the court must determine that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Id. This Court reviews the question of relevancy in the admission of evidence de novo. Id. A trial court's decision that evidence is more probative than prejudicial is reviewed for abuse of discretion. Id.

The "existence of alternative reasons for the escape goes to the weight of the evidence and not to its admissibility." State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105, 1116 (1983). In that case, Jeffers was in jail facing homicide charges. Jeffers had previously been sentenced to twelve years for receiving stolen property and twenty years for a federal firearm violation. Jeffers escaped from jail, and the trial court allowed the state to present evidence of Jeffers' escape to show his consciousness of guilt during the homicide trial. On appeal, Jeffers argued that, because there was another possible reason for the escape— the combined thirty-two-year sentence he was facing for the two prior convictions—the evidence of his escape was irrelevant in the homicide case. The Arizona Supreme Court acknowledged that authority exists in other jurisdictions that the circumstances must be such as to exclude every reasonable hypothesis except that of the defendant's guilt of the offense charged in order for the fact of escape to be admissible at trial. However, the Court noted more recent authority that indicates that evidence of escape may be introduced in a criminal case despite a multiplicity of pending charges. Id. See also, 3 A.L.R.4th 1085 (1981) (noting that the majority of cases have held that evidence of escape is admissible and any ambiguities affect only the weight to be given the evidence). Therefore, the Court determined that Jeffers could have offered an explanation of the escape that did not implicate him in the homicide case, but that it was not error for the trial court to allow the admission of evidence of Jeffers' escape. Jeffers, 661 P.2d at 1116.

In this case, prior to the first trial, Rossignol filed several motions in limine. The district court heard argument and ruled on the evidence of flight as follows:

In the case at hand Mr. Rossignol was charged with three counts of lewd conduct with a minor under sixteen years of age and one count of sexual abuse on a minor on November 15, 2005. Mr. Rossignol appeared for his arraignment on January 3, 2006[,] and a trial was set for June 12, 2006. Upon a motion to increase bail based on a new felony complaint of perjury, I ordered Mr. Rossignol to appear in court on March 17, 2006. Mr. Rossignol failed to appear at that hearing and failed to appear at a preliminary hearing on perjury charges on March 24, 2006. I vacated the June 12, 2006[,] trial due to his unknown whereabouts and issued a bench warrant. Mr. Rossignol turned himself in on July 11, 2006.

Mr. Rossignol argues that he did not flee at the first opportunity and he appeared at many hearings concerning the Child Protection Act proceedings. He also argues that the circumstances surrounding his departure from the state do not clearly point to one particular reason and that he could not explain his flight without referring to the perjury charge.

Mr. Rossignol fled from the state while very serious charges were pending against him and a trial date was quickly approaching. The maximum penalty for lewd and lascivious conduct with a minor is life in prison. The maximum penalty for perjury is fourteen years. The new allegations of perjury were directly related to the Child Protection Act proceedings which arose out of the charges at issue here. It is objectively unreasonable to conclude that the perjury charges, as a discreet event, rather than the convergence of events relating to the child sex abuse charges, gave rise to Mr. Rossignol's flight. Mr. Rossignol's flight from the county is therefore relevant and not unfairly prejudicial.

Prior to Rossignol's second trial, the motion in limine to exclude evidence of his flight was argued again. The district court allowed the state to introduce evidence of Rossignol's flight at the second trial for the same reasons it allowed that evidence during Rossignol's first trial.

On appeal, Rossignol argues that this Court should adopt the older line of authority from the cases in Jeffers that do not permit use of escape or flight evidence where the defendant faces incarceration or punishment for a charge other than the one on which he or she is being tried. We decline Rossignol's invitation. Evidence need only be of slight relevance to meet the requirements of I.R.E. 401. See State v. Waddle, 125 Idaho 526, 528, 873 P.2d 171, 173 (Ct.App.1994). Instead, we conclude that the existence of alternative reasons for the escape or flight goes to the weight of the evidence and not to its relevance or...