State v. Self

• Decision Date: 05 November 2003
• Docket Number: No. 28050, No. 28069.
• Citation: 139 Idaho 718,85 P.3d 1117
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Rodney G. SELF, Defendant-Appellant. State of Idaho, Plaintiff-Respondent, v. Rodney G. Self, Jr., Defendant-Appellant.
• Court: Idaho Court of Appeals

85 P.3d 1117

139 Idaho 718

STATE of Idaho, Plaintiff-Respondent, v. Rodney G. SELF, Defendant-Appellant.

State of Idaho, Plaintiff-Respondent, v. Rodney G. Self, Jr., Defendant-Appellant.

Nos. 28050, 28069.

Court of Appeals of Idaho.

November 5, 2003.

Review Denied February 18, 2004.

Hon. Molly J. Huskey, State Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

PERRY, Judge.

Rodney G. Self appeals from his judgments of conviction for two counts of rape and one count of lewd conduct with a minor under the age of sixteen. Self also appeals from the district court's denial of his I.C.R. 35 motion for correction of an illegal sentence. We affirm.

I. FACTS AND PROCEDURE

In November 2000, Self temporarily resided with a family, which included three children. When Self moved into the home, R.V., the youngest child, was fourteen years old.

R.V. alleged that on November 7, 2000, she and Self were in the TV room when Self asked her to rub his back. According to R.V., Self then asked her if she wanted to have sex with him. R.V. walked to her room, grabbed her quilt, and reclined on the floor to watch television in her bedroom. Soon thereafter, Self entered R.V.'s room, asked her to take her clothes off, and had sex with her. R.V. alleged that during the incident, Self ejaculated on her quilt and then wiped himself off with a blue towel. R.V. also alleged that on November 14, 2000, she and Self were in the TV room when Self had sex with her and then had her perform oral sex on him.

R.V. disclosed the two incidents to a friend. The friend relayed the information to R.V.'s mother, who called the police. R.V. underwent a rape kit examination at a local medical center. The examination did not produce evidence of semen or injury. The police obtained the blue towel, cut a carpet swatch from R.V.'s bedroom, and took her quilt from her bed. The blue towel tested negative for semen. The carpet swatch tested positive for semen, which did not match the genetic markers of Self. Tests performed on the quilt revealed blood matching R.V.'s blood type and semen that matched the genetic markers of Self.

The state charged Self with two counts of rape, I.C. § 18-6101, and one count of lewd and lascivious conduct with a minor, I.C. § 18-1508. Self was additionally charged with being a persistent violator based on four prior felony convictions. I.C. § 19-2514. Prior to trial, Self moved to introduce evidence, pursuant to I.R.E. 412, to show that R.V. made previous false allegations of sexual misconduct, that R.V. engaged in consensual sexual intercourse with at least one other male around the same time as Self allegedly raped her, that R.V. feared that she was pregnant by her boyfriend, that R.V. performed oral sex upon a male in the presence of a female friend, and that R.V. conversed with an adult confidant about her fear of being pregnant and the morning-after pill. The district court allowed the introduction of testimony regarding conversations between R.V. and a friend about her fear of being pregnant and testimony regarding the conversation between R.V. and the adult confidant. The district court excluded evidence as to R.V.'s prior sexual conduct, testimony that R.V. performed oral sex upon a male in the presence of others, and that R.V. made false accusations of sexual misconduct.

A jury found Self guilty of all counts. Self then admitted to being a persistent violator based on four felony offenses he was convicted of in 1994. Prior to sentencing, Self moved to withdraw his admission to the persistent violator enhancement. Self argued that, because he pled guilty to the four prior felonies on the same day and because sentencing was imposed for the felonies on the same day, the convictions should have been considered as one. Self also argued that one of the felony convictions should have been considered a misdemeanor. The district court denied Self's motion to withdraw his admission, ruling that Self's prior felony convictions arose from four factually distinct events with four different victims and were correctly considered four separate felony convictions for purposes of the persistent violator enhancement. The district court sentenced Self to concurrent unified terms of twenty years, with minimum periods of confinement of seven years. Self appeals from the denial of his motion to withdraw his admission and on I.R.E. 412 evidentiary issues.

After being sentenced on the rape and lewd conduct charges, Self filed in his prior case a Rule 35 motion to correct an illegal sentence based on one of his 1994 felony convictions. The district court in the former case denied this motion, holding that it had previously found the underlying conviction to be valid and, therefore, the sentence was legal. Self also appeals this decision.

Self's appeal of evidentiary issues and the denial of his motion to withdraw his persistent violator admission, docket number 28080, was consolidated with his appeal of the denial of his Rule 35 motion, docket number 28089. Self makes three arguments on appeal. Self argues that the district court erred when it excluded testimony tending to show alternative sources of semen. Self also contends that the district court erred in denying his motion to withdraw his persistent violator admission because his four felonies should be treated as one conviction and because one of his felony convictions should have been a misdemeanor. Self additionally appeals from the denial of his Rule 35 motion in the earlier case.

II. ANALYSIS

A. Admission of I.R.E. 412 Evidence

Self argues that the district court erred when it excluded evidence pursuant to I.R.E. 412 of an alternate source of semen and prior conduct explaining no finding of injury. Self additionally asserts that the district court should have allowed him to admit the evidence as alternate perpetrator evidence pursuant to his Sixth Amendment right to present a complete defense.

Self contends that R.V. engaged in sexual conduct with another individual during the relevant period and that semen can remain in the body for two or three days and then leak from the body onto surfaces. Self argues that the district court should have allowed a witness to testify to R.V.'s prior sexual conduct as alternate perpetrator evidence. In State v. Larsen, 91 Idaho 42, 415 P.2d 685 (1966), the Idaho Supreme Court held that evidence of an alternate perpetrator is admissible if there is a proof of connection with the crime, "such a train of facts or circumstances, as tend clearly to point out someone besides the accused as the guilty party." Id. at 47, 415 P.2d at 690. Self offers testimony that R.V. engaged in sexual intercourse with J.H. on a couch in R.V.'s house between 8:00 p.m. and 8:30 p.m. and that it was probable that afterwards R.V. went to her bedroom, laid down, and leaked semen onto her quilt. If admitted, this testimony may have established that someone other than Self had sex with R.V. around the relevant time period. However, that evidence would not exclude the possibility that Self also engaged in sexual intercourse with R.V. In order for Self's proffered evidence to connect J.H. as an alternate perpetrator, J.H.'s semen would have to test positive for the same genetic markers as Self's semen. There was no attempt to test the genetic markers of J.H. As such, Self's evidence is only that R.V. had sexual contact with another person. It does not show that R.V. did not also have sexual contact with Self. Thus, we conclude that Self's proffered evidence was not evidence of an "alternate perpetrator." Therefore, we address the admissibility of the evidence under Rule 412.

The decision whether to admit evidence at trial is generally within the province of the trial court. A trial court's determination as to the admission of evidence at trial will only be reversed where there has been an abuse of that discretion. State v. Zimmerman, 121 Idaho 971, 973-74, 829 P.2d 861, 863-64 (1992). 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 consistently 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).

Idaho Rule of Evidence 412, applicable to sex crime cases, states in pertinent part:

(b) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a sex crime, evidence of a victim's past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is—

....

(2) admitted in accordance with subdivision (c) and is evidence of—

(A) past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury....

Subdivision (c) of Rule 412 sets forth certain notice requirements that must be met by a party requesting to admit evidence of an alleged victim's past sexual behavior. Additionally, subdivision (c)(3) provides that if the evidence is relevant and the probative value of such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible at trial.

This Court recognizes that a defendant's Sixth Amendment right to present a defense may be limited by Rule 412. A defendant has no right to present irrelevant evidence and even if evidence is relevant, it may be excluded in certain cases. See State v. Peite, 122 Idaho 809, 814, 839 P.2d 1223, 1228 (Ct.App.1992)

. In Peite, ...