State v. Scovell

• Decision Date: 01 November 2001
• Docket Number: No. 26181.,26181.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Arthur SCOVELL, Defendant-Appellant.
• Court: Idaho Court of Appeals

38 P.3d 625

136 Idaho 587

STATE of Idaho, Plaintiff-Respondent, v. Arthur SCOVELL, Defendant-Appellant.

No. 26181.

Court of Appeals of Idaho.

November 1, 2001.

Ronaldo A. Coulter, State Appellate Public Defender; Richard J. Hansen, Deputy Appellate Public Defender, Boise, for appellant. Richard J. Hansen argued.

Hon. Alan G. Lance, Attorney General; Karen A. Hudelson, Deputy Attorney General, Boise, for respondent. Karen A. Hudelson argued.

LANSING, Judge.

Arthur Scovell appeals from his conviction of four counts of lewd conduct with a minor. He argues that evidence of his prior sexual misconduct with the same victim and hearsay evidence of the victim's contentions were erroneously admitted. He also challenges the sentences imposed and the denial of his motion for reduction of the sentences.

I. FACTS AND PROCEDURAL HISTORY

Scovell was charged by grand jury indictment with four counts of lewd conduct with a minor under sixteen, Idaho Code § 18-1508. The charges were based on allegations that he had molested his stepdaughter, S.H., over a period of approximately two years when S.H. was nine to eleven years old. The charges included allegations of manual/genital contact, oral/genital contact and genital/genital contact with S.H. Following a jury trial, Scovell was found guilty of all four counts. The district court imposed four concurrent indeterminate life sentences with fifteen-year minimum terms of imprisonment. Scovell filed a motion to reduce his sentences, which was denied. Scovell appeals, arguing that there was error in the admission of evidence at trial and that the sentences are excessive.

II. ANALYSIS

A. Uncharged Sexual Misconduct

Over Scovell's objection, the State was allowed to present S.H.'s testimony about incidents of sexual molestation by Scovell during the eighteen months preceding the time covered by the indictment. Scovell argues that this evidence of prior misconduct was irrelevant to any contested issue in his trial and was therefore inadmissible.

The admissibility of evidence of a criminal defendant's uncharged misconduct is governed by Idaho Rule of Evidence 404(b), which provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith," but may be admissible "for other purposes." When such evidence is offered, a trial court must employ a two-part analysis. First, the court must determine whether the evidence is relevant to a disputed material issue concerning the charged crime. State v. Moore, 120 Idaho 743, 745, 819 P.2d 1143, 1145 (1991); State v. Pugsley, 128 Idaho 168, 177, 911 P.2d 761, 770 (Ct.App.1995). On appeal, the trial court's decision on this prong is reviewed de novo. State v. MacDonald, 131 Idaho 367, 369, 956 P.2d 1314, 1316 (Ct.App.1998). If the evidence is relevant, the trial court must then consider whether its probative value is substantially outweighed by unfair prejudice. Moore, supra; Pugsley, supra. This balancing of probative value and unfair prejudice is committed to the trial court's discretion, and will not be reversed on appeal absent an abuse of discretion. MacDonald, supra; Pugsley, supra.

The Idaho Supreme Court has held that in prosecutions for sexual molestation of a child, evidence of uncharged incidents of the defendant's sexual misconduct with the same victim or with other children is relevant to demonstrate the young victim's credibility. State v. Tolman, 121 Idaho 899, 904, 828 P.2d 1304, 1309 (1992); Moore, 120 Idaho at 745-46, 819 P.2d at 1145-46. In Moore, the Court stated: "Evidence of similar acts of sexual misconduct between a defendant and the victim or between the defendant and another witness is admissible for corroboration of the victim's testimony in sex crime cases." Id. (quoting State v. Schwartzmiller, 107 Idaho 89, 93, 685 P.2d 830, 834 (1984)) (emphasis added). According to the Supreme Court, hearing detailed testimony about prior uncharged incidents may render the jury "better able to compare patterns and methods, details and generalities, consistencies and discrepancies, and thereby [make] a more meaningful and accurate assessment of the parties' credibility." Tolman, 121 Idaho at 905, 828 P.2d at 1310. Additional cases affirming the admission of evidence of the defendant's prior or subsequent uncharged sexual misconduct with the same victim include State v. Tapia, 127 Idaho 249, 256, 899 P.2d 959, 966 (1995); State v. Lewis, 123 Idaho 336, 350-51, 848 P.2d 394, 408-09 (1993); and State v. Hansen, 127 Idaho 675, 680, 904 P.2d 945, 950 (Ct.App. 1995).

In the present case, S.H.'s testimony about when and how the abusive behavior began allowed the jury to see the full picture, putting her testimony about the charged acts into context. The challenged testimony gave the jury a better ability to assess whether S.H. was fabricating her story or telling the truth. Therefore, we hold that the evidence was relevant to S.H.'s credibility.

Having concluded that the evidence of uncharged misconduct was relevant, we must consider whether the district court abused its discretion in determining that the probative value of the evidence was not substantially outweighed by unfair prejudice. See I.R.E. 403. In evaluating the possible unfair prejudice, we bear in mind that S.H. testified extensively about the four charged acts of sexual molestation. Her testimony about uncharged molestation described behavior similar to the charged offenses. Thus, except with respect to the dates that the events occurred, the challenged evidence was largely cumulative to the evidence of the charged acts. This factor significantly attenuates the prejudicial effect. The risk of unfair prejudice was further reduced by the trial court's instruction that the jurors were not to consider the uncharged acts as proof that Scovell had criminal propensities or behaved in conformity with them by committing the charged crimes. We conclude that the district court did not abuse its discretion in balancing the probative value of the evidence of uncharged misconduct against the risk of unfair prejudice and admitting the testimony into evidence.

B. Hearsay Evidence

After S.H. reported that Scovell had sexually molested her, S.H. received treatment from Renee Hatten, a mental health therapist. Hatten testified, without objection, that in her opinion S.H. had been sexually molested. During Hatten's testimony, three documents that were prepared in the course of S.H.'s therapy were admitted over Scovell's objections. The first of these, Exhibit 3, is a handwritten list prepared by S.H. at the therapist's request describing how the molestation made her feel and describing things that trigger her memories of the abuse. The next document, Exhibit 4, is Hatten's handwritten notes recording S.H.'s oral responses after Hatten asked S.H. to give reasons why the abuse was the fault of Scovell and not the fault of S.H. The last challenged exhibit, Exhibit 5, was typed by S.H.'s grandmother and purports to reflect information dictated to the grandmother by S.H. describing how the molestations typically occurred. According to Hatten's testimony, Exhibit 5 was prepared at Hatten's instruction as a treatment exercise. The only foundation for admission of these three exhibits was presented through Hatten, who testified that all of the documents were components of S.H.'s therapeutic treatment and that Hatten relied upon them in forming the opinions to which she testified at trial.

On appeal, Scovell argues that all three exhibits were hearsay made inadmissible by I.R.E. 802. In the trial, however, defense counsel raised a hearsay objection only as to Exhibit 4. Although the defense also objected to Exhibits 3 and 5, the objections raised did not include a contention that the documents were hearsay. The failure to make an objection at trial precludes appellate review of the alleged error. I.R.E. 103(a)(1); State v. Lesley, 133 Idaho 23, 25, 981 P.2d 748, 750 (Ct.App.1999); State v. Gleason, 130 Idaho 586, 592, 944 P.2d 721, 727 (Ct.App. 1997). An objection to evidence on one ground does not preserve a claim that the evidence was inadmissible for a different reason. State v. Norton, 134 Idaho 875, 880, 11 P.3d 494, 499 (Ct.App.2000). Because Scovell did not raise a hearsay objection at trial, his present contention that Exhibits 3 and 5 were inadmissible hearsay has not been preserved for appellate review.

Because Scovell did make a hearsay objection to Exhibit 4 at trial, we will examine his hearsay argument with respect to that exhibit. Exhibit 4 is in Hatten's handwriting but purports to be quotes of S.H.'s statements to Hatten, given during a therapy session, in which S.H. listed reasons why Scovell, and not S.H., is at fault for the sexual molestation.¹ The State concedes that Exhibit 4 is hearsay and that none of the hearsay exceptions in I.R.E. 803 and 804 apply. The State argues, however, that the exhibit is admissible under I.R.E. 703, which governs expert testimony. That rule states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

(Emphasis added.) The State relies upon the italicized language for the proposition that if an expert testifies that she relied upon otherwise inadmissible hearsay in formulating an opinion, the hearsay is admissible at the behest of the party who proffers the expert testimony.

This assertion is not supported by the language of the rule. The rule addresses the type of information upon which an expert may rely in developing the opinions or inferences to which the expert will testify at trial; the rule does not contain any provision for...