STATE of Idaho, Plaintiff-Respondent, v. Domingo Jesus DIAZ aka Martines; Martinez-Diaz, Defendant-Appellant.
No. 42103
Court of Appeals of Idaho.
May 15, 2015
349 P.3d 1220
evidence. A totality of the evidence has been defined to encompass circumstantial evidence of impaired driving ability or other observable symptoms of intoxication. However, to prove that a person is guilty of driving under the influence, the State must prove more than a driving impairment. The State must also present evidence, besides the impairment itself, to prove that the impairment was caused by alcohol, drugs, or intoxicating substances. See
Stark, 157 Idaho at 31, 333 P.3d at 846 (citations and quotation marks omitted). We then held that the State had provided sufficient evidence of impairment, but that the State‘s evidence of carboxy-THC in the defendant‘s blood was not sufficient to prove that marijuana use caused the impairment. We explained that while evidence of the presence of carboxy-THC in a blood sample shоwed past marijuana use, such evidence of past drug use would be relevant to a charge of driving under the influence of that drug only if the State proves a connection between the past drug use and a driver‘s impairment when the motor vehicle was operated. Id. at 33, 333 P.3d at 848. We concluded that the State had not provided the required connection in Stark‘s case.
In this case, by contrast, the State linked the evidence of carboxy-THC in Morin‘s blood to her impairment. The State presented evidence that Morin was impaired: she slurred her speech, gave strange responses to an officer‘s questions, and failed numerous field sobriety tests; and the State linked this intoxication to marijuana use through both the carboxy-THC evidence and other evidence that Morin‘s appearance and behavior were indicative of marijuana intoxication. Witnesses indicated that Morin‘s pupils were dilated, she had abnormal eye tremors, her tongue had a yellow-green coating, and she failеd a “lack of convergence” test. There was testimony that each of these factors indicated that Morin was under the influence of marijuana. The carboxy-THC evidence supported this theory by showing that Morin had indeed used marijuana. Thus, although as we held in Stark, carboxy-THC evidence, standing alone, is not sufficient to prove that marijuana use was the cause of intoxication, carboxy-THC evidence is relevant when combined with other evidence indicating the driver‘s recent marijuana use. The Idаho Rules of Evidence do not require that any particular piece of evidence completely prove the proponent‘s case. Rather, evidence is relevant when it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
III.
CONCLUSION
We hold that the State‘s discovery response was deficient as a matter of law, but that the deficiency does not warrant reversal. We also hold that the evidence showing that there was carboxy-THC in Morin‘s blood-stream was relevant and properly admitted. Therefore, we affirm the appellate decision of the district court affirming Morin‘s judgment of conviction.
Chief Judge MELANSON and Judge GUTIERREZ concur.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
THE COURT‘S PRIOR OPINION DATED MAY 6, 2015 IS HEREBY WITHDRAWN
MELANSON, Chief Judge.
Domingo Jesus Diaz appeals from his judgment of conviction for assault with intent to commit rape and battery with intent to commit rape. He contends that the district court erred in denying his motion to sever the two counts аnd allowing the state to introduce
I.
FACTS AND PROCEDURE
On May 21, 2013, an individual, later identified as Diaz, was waiting outside of a bar. An intoxicated woman exited the bar around midnight and Diaz asked her for a cigarette. He then began following her as she walked to a friend‘s home a short distance away. She eventually noticed that Diaz was following her and asked what he was doing. Diaz did not respond and continued to follow her. She again asked him what he was doing, and he again did not respond. Instead, he reached around her and poked at her genitals twice. The victim protested and tried to run away. Diaz chased the victim, tackled her to the ground, straddled her, and pinned down her arms. Diaz began manipulating his waistband area and the victim screamed for help, drawing the attention of at least one resident in the area. Diaz then punched the victim in the face and fled.
Approximately one week lаter, Diaz was again waiting outside the same bar late at night and began following another intoxicated woman as she left. Diaz tried to coax the woman toward darker and more isolated areas, but the woman refused. She entered another nearby bar, where she remained for a few hours. Diaz waited outside the second bar until the woman left, and he again followed her. The woman asked him what he was doing and he responded that they were friends, which the woman denied. She told Diaz that it was not okay to wait for her and follow her, but Diaz continued to do so. The woman began walking faster as Diaz continued to try to coax her into the shadows. She eventually began to run and Diaz gave chase, grabbing her just as she reached her sister‘s house. She shoved him, breaking free from his grip, and ran to the door. She rang the doorbell and Diaz fled.
The first victim reported the incident to police and identified Diaz from a photo line-up. When questioned by police about the first incident, Diaz described the second incident that had not yet been reported. The police subsequently spoke to the second victim, who also identified Diaz from the same photo lineup.
Diaz was charged with battery of the first victim with intent to commit rape,
II.
ANALYSIS
Diaz contends that the district court erred in denying his motion to sever and in admitting evidence relevant only to his criminal
A. Motion to Sever
An abuse of discretion standard is applied when reviewing the denial of a motion to sever joinder pursuant to
The inquiry on appeal from the denial of a motion to sever is whether the defendant has presented facts demonstrating that unfair prejudice resulted from a joint trial. State v. Eguilior, 137 Idaho 903, 908, 55 P.3d 896, 901 (Ct.App.2002); State v. Cirelli, 115 Idaho 732, 734, 769 P.2d 609, 611 (Ct.App.1989). When dealing with separate counts that have been properly joined based on their same or similar character, Idaho appellate courts review the trial prоceeding to determine whether one or more of the following potential sources of prejudice appeared: (a) the possibility that the jury may confuse and cumulate the evidence, rather than keeping the evidence properly segregated; (b) the potential that the defendant may be confounded in presenting defenses; and (c) the possibility that the jury may conclude the defendant is guilty of one crime and then find him or her guilty of the other because of his or her criminal disposition. State v. Abel, 104 Idaho 865, 867-68, 664 P.2d 772, 774-75 (1983); State v. Gooding, 110 Idaho 856, 858, 719 P.2d 405, 407 (Ct.App.1986).
Diaz contends that the third potential source of prejudice occurred. To address such claims, the Idaho Supreme Court has utilized an analysis that looks at the evidence of the separate counts to determine whether, if the counts had been tried separately, the separate evidence could have been admitted in the separate trials.3 See Abel, 104 Idaho at 868, 664 P.2d at 775; Cirelli, 115 Idaho at 734, 769 P.2d at 611. When dealing with the third potential source of prejudice, a Rule 404(b) analysis is useful in determining the admissibility of evidence of one crime in a separate trial for the other crime. Abel, 104 Idaho at 868, 664 P.2d at 775.
Idaho Rule of Evidence 404(b) provides:
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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, iden-tity,
or absence of mistake or accident, provided that the prosecution in a criminal case shall file and serve notiсe reasonably in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
This rule prohibits introduction of evidence of acts other than the crime for which a defendant is charged if the evidence‘s probative value is entirely dependent upon its tendency to demonstrate the defendant‘s propensity to engage in such behavior. State v. Grist, 147 Idaho 49, 54, 205 P.3d 1185, 1190 (2009); see also State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct.App.2002). Of course, evidence of anothеr crime, wrong, or act may implicate a person‘s character while also being relevant and admissible for some permissible purpose, such as those listed in the rule. See State v. Pepcorn, 152 Idaho 678, 688-89, 273 P.3d 1271, 1281-82 (2012).
When determining the admissibility of evidence to which a Rule 404(b) objection has been made, the trial court must first determine whether there is sufficient evidence of the other acts that a reasonable jury could believe the conduct actually occurred. If so, then the court must consider: (1) whether the other acts are relevant to a material and disputed issue concerning the crime charged, other than propensity; and (2) whether the probative value is substantially outweighed by the danger of unfair prejudice. Grist, 147 Idaho at 52, 205 P.3d at 1188; State v. Parmer, 147 Idaho 210, 214, 207 P.3d 186, 190 (Ct.App.2009). On appeal, this Court defers to the trial court‘s determination that there is sufficient evidence of the other acts if it is supported by substantial and competent evidence in the record. Parmer, 147 Idaho at 214, 207 P.3d at 190. In this case, Diaz does not challenge the district court‘s conclusion that there was sufficient evidence to allоw a reasonable jury to believe that the assault and the battery actually occurred. Therefore, we address only the issues of relevancy and unfair prejudice.
Evidence that is relevant to a material and disputed issue concerning the crime charged is generally admissible. State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008). Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidencе.
Here, the state filed notice of its intent to present
1. Assault
Diaz contends that evidence from either count was “too attenuated to be relevant to intent” in a separate trial for the other count. He bases this argument on his own assertion to law enforcement that he did not intend to rape either victim and on the difference between the victims’ trial testimony as to what they thought Diaz intended to do. Specifi-cally,
As part of its rationale for granting the state‘s
Additionally, the district court recognized the need to perform a
2. Battery
Evidence from the assault count was similarly relevant to show intent and absence of mistake or accident for the battery count. Although the district court did nоt specifically find the assault count evidence relevant for the purpose of showing absence of mistake or accident, relevance is a question of law that we review de novo.5 See Raudebaugh, 124 Idaho at 764, 864 P.2d at 602; Aguilar, 154 Idaho at 203, 296 P.3d at 409. Moreover, where a ruling in a criminal case is correct, though based upon an incorrect reason, it still may be sustained upon the proper legal theory. State v. Pierce, 107 Idaho 96, 102, 685 P.2d 837, 843 (Ct.App.1984); see also State v. Cardell, 132 Idaho 217, 219-20, 970 P.2d 10, 12-13 (1998) (noting that it reviewed issues of relevance de novo and concluding that evidence admitted by the district court to corroboratе victim testimony was instead relevant to prove absence of mistake or accident). Such is the case here.
The state was required to prove that Diaz committed battery with intent to commit a serious felony—in this case, rape. Diaz denied any intent to rape the battery victim and, instead, told police that he was simply trying to help her get home. In the process of doing so, he claimed, she fell down and he accidentally touched her breast and struck her in the face. Thus, the evidencе from the assault count that occurred in the same area and in a similar manner just a few days later was relevant to prove the material and disputed issue of Diaz‘s true intent. Indeed, the assault count evidence helped prove Diaz‘s intent for the battery count primarily because it showed that his conduct during the battery was not a matter of accident or mistake. Moreover, Diaz failed to argue any basis for determining that the significant probative value of the assault count evidence wаs substantially outweighed by the danger of unfair prejudice. As a result, evidence from the assault count would have been admissible in a separate trial for the battery count to show intent and absence of mistake or accident.
Diaz has failed to show that the evidence of either count would have been inadmissible in a separate trial for the other count. Accordingly, the third potential source of prejudice did not appear in this case, and the district court did not err in denying Diaz‘s motion tо sever.
B. Sentence Review
Diaz argues that the sentences imposed by the district court, although within statutory limits, were excessive and an abuse of discretion in light of the mitigating factors present in his case. According to Diaz, these factors included his lack of prior felony convictions, his young age, and his future amenability to treatment.
An appellate review of a sentence is based on an abuse of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct.App.2000). Where a sentence is not illegal, the appellant has the burden to show that it is unreasonablе and, thus, a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation, or retribution applicable to a given case. State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1982). Where an appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct an independent review of the record, having regard for the nature of the offense, the character of the offender, and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct.App.1982). However, the primary consideration is, and presumptively always will be, the good order and protection of society; all other factors are subservient to that end. State v. Hunnel, 125 Idaho 623, 873 P.2d 877 (1994); State v. Pederson, 124 Idaho 179, 857 P.2d 658 (Ct.App.1993). Moreover, the issue before this Court remains whether the sentence is plainly excessive under any reasonable view of the facts, not whether the sentence is one that we would have imposed. Toohill, 103 Idaho at 568, 650 P.2d at 710. If reasonable minds might differ as to whether the sentence is excessive, we are not free to substitute our view for that of the district court. Id. When reviewing the length of a sentence, we consider the defendant‘s entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
Assault with intent to commit rape is punishable by up to fifteen years imprisonment,
III.
CONCLUSION
Evidence from the battery count was relevant to prove Diaz‘s intеnt in committing the assault, and evidence from the assault count was relevant to show Diaz‘s intent and the absence of mistake or accident in committing the battery. Diaz failed to show that the district court abused its discretion in determining that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Therefore, the district court did not err in denying Diaz‘s motion to sever. Diaz also failed to show that the district court abused its sentencing discretion. Accordingly, Diaz‘s judgment of conviсtion and sentences for assault with intent to commit rape and battery with intent to commit rape are affirmed.
Judge LANSING and Judge GRATTON concur.
Notes
If it appears that a defendant or the state is prejudiced by a joinder of offenses ... in a complaint, indictment or information or by such joinder for trial together, the court may order the state to elect between counts, grant separate trials of counts ... or provide whatever other relief justice requires.