*1
STATE Billy KUHN, Defendant-Appellant. R.
No. 28563. Appeals of Idaho. Aug. 18, 2004. Review Denied Feb. *2 Wasden, Attorney Gen- G.
Hon. Lawrence Attor- Deputy eral; Jorgensen, K. Kenneth Ken- Boise, respondent. General, ney argued. Jorgensen neth K.
PERRY, Judge. judgment appeals from
Billy R. Kuhn by the sentence entered conviction and jury found him district court after sixteen. minor under conduct with lewd court’s the district appeals from also Kuhn for reduc- motion denying I.C.R. 35 order affirm. of sentence. We tion
I. PROCEDURE
FACTS AND at trial indicated state’s evidence 26, 2001, telephone police received on June sexually molest- Kuhn had claiming call daughters. Officers young the caller’s ed friend had become a learned that Kuhn mother, boyfriend, and the mother’s prior months During the seven daughters. contacted, Kuhn had police to the time were frequently at their home spent hours daughters games with the played video daughter nine-year-old their bedroom. that, curiosity, asked she reported out answered sex. Kuhn questions about using slang in a crude fashion questions her him. have sex with her to terms and asked on numerous her to have sex Kuhn asked her room they alone in were occasions when wrong, the Knowing it was and elsewhere. eventually told She nine-year-old refused. mother, mother to call led the which her police. called, police
Shortly were after her mother eight-year-old informed approximately sexually her Kuhn had abused At the time three weeks earlier. abuse, home alone with daughters were eight-year-old Kuhn. Kuhn showed she movie. When daughter pornographic eight-year-old night, the went bed that top bunk bed lay on the Kuhn to down Huskey, Appellate Public asked Molly J. about the Wadams, she was scared her because Defender; Deputy with Isaac Charles bed, talked Boise, by her on the Defender, lay appel- movie. Appellate Public movie, into her put his hand to her about argued. lant. Isaac Wadams Charles underpants, genitals, Bowman, touched her showed her . penis and told her to touch it. (Ct.App.1993) alleged
For his eight-year-old acts with the In this the,district court instructed daughter, Kuhn charged with lewd con- jury: *3 duct with a minor § under sixteen. I.C. 18- beyond “Proof a reasonable is doubt” 1508. For allegedly soliciting nine-year- proof you that leaves with an abiding con- daughter old participate in sexual activi- viction the truth charge of of the against ties, Kuhn charged was with sexual abuse of An abiding defendant. conviction is a child under sixteen. § I.C. 18-1506. A one ordinary that would make an person jury trial ended in a mistrial. A second trial willing important to act in the most affairs held, jury was and a found guilty Kuhn of of his or her very own life. There are few lewd conduct with a minor guilty not but of things in this world that we know with sexual abuse of a child. The district court certainty, absolute and in criminal cases sentenced Kuhn to a years unified of term six require the law proof does not which over- months, and six with a period minimum of every If, possible comes doubt. based year confinement of one six months. upon your evidence, consideration of the subsequent Kuhn’s Rule 35 motion for reduc- you abiding have an conviction that tion of sentence was denied. guilty defendant is charged, of the crime you must guilty. find the defendant If on appeal, argues On Kuhn that the district hand, you the other think there is a rea- erroneously court jury instructed the on the sonable guilt, doubt as to the standard, defendant’s reasonable doubt that the district you give must the defendant the of benefit compromised court right to a fair the doubt and find the defendant not trial when it denied request to dismiss a guilty. prospective juror cause, that the state prosecutorial committed misconduct clos- Kuhn asserts that this instruction did ing argument, that the district improp- court Jury follow Idaho Criminal Instruction erly imposed sentence, an excessive and that (ICJI) defining reasonable doubt the district court erred when it denied his that grounds the failure to do so is for rever- I.C.R. 35 motion for reduction of sentence. argues sal. Kuhn language “possi-
ble doubt” reduced the state’s
of
burden
proof by
II.
improperly allowing jury
find
an accused
even if a feasible
or
doubt
ANALYSIS
improbable doubt remains.
A. Reasonable Doubt Instruction
recently
addressed this
issue
challenges
Kuhn
the district court’s rea-
Docket No.
139 Idaho
instruction,
sonable doubt
claiming that
it
2003).
(Aug.
WL 21782664
In
impermissibly reduced the state’s burden of
Sheahan, the Court held that the use of the
proof in violation of the
and federal
state
doubt,”
language “possible
modifying
without
question
constitutions. The
whether the
it
“imaginary,”
with
permissible
is
and did
has
properly
been
question
instructed is a
of
lessen the
proof.
state’s burden of
law over which we exercise free review.
Therefore,
challenge
“possible
Gleason,
doubt” language fails.
691, 694
reviewing jury
When
in-
structions, we ask whether the instructions
defining “abiding
contends that
next
whole,
individually,
and not
fairly conviction” as “one that would make
ordi-
accurately
applicable
reflect
nary person
law. State v.
willing
impor-
to act in the most
states,
Jury
which,
1. Idaho Criminal
comparison
Instruction
after the entire
and consid-
pertinent part:
evidence,
eration
all the
leaves
minds
doubt,
possible
every-
It
not mere
because
jurors
they
in that condition that
cannot
affairs,
thing relating
depending
to human
conviction,
say they
abiding
feel an
to moral
evidence,
open
on
possible
moral
or
some
certainty,
charge.
of the truth of the
imaginary doubt.
It is the state of the case
prefer-
law indicates a
Ninth Circuit case
affairs
his or her own life” reduced
tant
argues
See
the state’s
the hesitate to act standard.
burden
ence for
(9th
instructed
Robinson,
the district court should have
This
phrase
takes the
When a trial
alleged
court fails to excuse an
out of context. The
ly
instruction
to the
prospective juror
biased
for cause but that
jury
juror
stated that each
must
left
prospective juror
be
with
by peremp
was excused
abiding
Thus,
conviction.
tory challenge,
may
a new
granted
trial
instructed that the
personal
standard was
only
when the accused can show that one or
each of
objective,
them rather
than to an
jurors
more
deliberating
other
in the case
ordinary person
ordinary
and what an
Ramos,
568,
were biased. State v.
119 Idaho
would have
been convinced of in
569-70,
1313,
the case.
1314-15
In
Furthermore,
this
Court has used the term
prospective juror allegedly
this
bi
cases,
prior
stating specifically against
by
ased
Kuhn
peremp
was removed
doubt that
ordinary person
Thus,
would make an
tory challenge.
Kuhn must show that
hesitant
important
to act in the
jurors
affairs of
actually
life
who
deliberated in his case
does not lower the state’s
burden of
juror
were biased. The
Kuhn
other
accuses
Gleason,
See State v.
944 of
juror
bias sat as an alternate
and was
721,
Therefore,
P.2d
(Ct.App.1997).
725
excused
argues
before deliberations.3 Kuhn
challenge
We note that
juror
Kuhn failed to
during
for cause
voir dire.
rule is
The rationale of this
juror
(Ct.App.1999).
to sit
allowing the alternate
jurors
timely objection
inflam-
that even
to such
trial indicated
the other
juror’s
matory
cured the
or misunder-
would not have
alternate
known biases
statements
Brown,
standings
acceptable.
131 Ida-
prejudice.
law were
inherent
may
(Ct.App.1998).
argues
presented
that he
have
also
ho
differently if
known
defense
he had
is, thus,
We
inquiry
Our
two-tiered.
juror
participate
would not
in delib-
alternate
prosecutorial
first determine whether
speculation
These
arguments
erations.
Reyn
complained
improper.
of was
conduct
jurors
that the other
and fail to demonstrate
olds,
1005. If
816 P.2d at
actually
who
deliberated in his case were
was,
consider
it
then
we conclude that
we
Therefore, Kuhn has failed to
biased.
show
de
prejudiced
misconduct
whether such
error.
reversible
it
to a fair trial or whether
right
fendant’s
appellate
Id.
was harmless.
Where the
C. Prosecutorial Misconduct
that, beyond a reasonable
is able to declare
prosecutor
next
asserts
reached the
below would have
during closing argu-
committed misconduct
occurred,
same
had the
result
misconduct
by improperly
personal
expressing
ment
be-
the error
Id. at
is deemed harmless.
credibility
he
lief as to
charac-
encouraged upon experi- closing argument their own draw that defense counsel had determining ences when a being misled improper, and lied to the were prosecutor honest or The sug- dishonest. the conduct did not rise to the level of a gested jurors might' any consider fundamental error. In Kuhn’s although inconsistency person’s story in a from one prosecutor committed misconduct during next, occasion to the believabihty of the closing argument, his and rebuttal the evi- lie, story, the motivation to and the stakes in dence showed various inconsistencies re- prosecutor the outcome. argued then addition, ferred to. In found witnesses, why about including the state’s charges, innocent of one of the demonstrat- victims, pros- were the most believable. The ing blindly accept that the did boldly ecutor story asserted that Kuhn’s Also, prosecutor’s arguments. intensity unbelievable and that he bed trial. prosecutor’s of the misconduct Kuhn’s prosecutor argument based on incon- ease, liar, calling witness is no more testimony pri- sistencies between Kuhn’s at a egregious prosecutor commenting than the hearing or testimony at trial and on lied, defense counsel which the story by contradiction of Kuhn’s other Court held not to be fundamental error in presented evidence at trial. Therefore, Sheahan. we conclude that the inflammatory comments were not so response, argued counsel for Kuhn jurors were influenced determine Kuhn’s closing any inconsistencies in Kuhn’s and, guilt on factors testimony story mistakes, outside evidence or were innocent thus, prosecutor’s including actions did not rise to faulty memory on part. Kuhn’s Defense level of error. counsel also attacked fundamental credibility witnesses, characterizing state’s their testimony prosecutor, as lies. The in reply, D. Sentence and Rule 35 Review Motion again noted the inconsistencies in Kuhn’s jury in After the this case found testimony, stated inconsistencies with a lewd conduct minor were perjury, the result of Kuhn’s and re- sixteen, under the district sentenced ferred to past convictions of crimes six-year Kuhn to a and six-month term of involving dishonesty. imprisonment, year with one and six months prosecutor’s On review of the state fixed. The later denied district court *7 during closing argument, ments and rebuttal I.C.R. reduction 35 motion for of sentence. we prosecutor’s conclude that of some character, light Kuhn argues that in of his prosecutor statements were The improper. offense, goals and the nature of the of permissibly argued should be sentencing, his sentence excessive and that lieve story the state’s side over Kuhn’s the district its discretion court abused when story because his was inconsistent when com it denied his motion. Rule 35 pared prior testimony. with his prose Sentencing for the trial is a matter court’s permissibly argued cutor also that the reason discretion. Both our of and standard review there were in inconsistencies Kuhn’s testimo evaluating in factors to be considered ny was because he had lied under oath and reasonableness of the sentence are well es that this first was not the time Kuhn had Hernandez, tablished. 121 See State v. Ida However, committed acts. dishonest (Ct. 114, 117-18, 1011, ho P.2d 1014-15 822 prosecutor propriety the line of crossed when 447, App.1991); Lopez, 106 State v. Idaho he called Kuhn liar and a “a thief’ and 449-51, 869, (Ct.App.1984); 680 P.2d 871-73 expressly committing perjury, him of accused Toohill, 650 felony. an independent 707, Applying (Ct.App.1982). 710 these stan Having prosecu that determined dards, having in and reviewed record misconduct, tor committed we must now ex say we cannot that the district court amine whether the misconduct rises to the sentencing abused its discretion Kuhn. level of a error warranting fundamental re Sheahan, Next, versal. the Court held whether the that we review district although prosecutor’s during comments court in denying erred Kuhn’s Rule 35 mo-
717 muster, it constitutional passes for struction denying a motion reduc- tion. An order floor bargain of does so at the basement Rule 35 is reviewed tion of a sentence under constitutionality, reducing risks the level and of If the sentence an abuse discretion. to that of pro- certainty required time of of conviction reasonable at the found be I nouncement, expensive or ear. am buying cheap must then show house defendant by it is excessive in view of additional troubled the collective dilution/omission presented “imaginary” the motion for with words information constitutional art — Hernandez, Idaho at 822 certain- 121 to act” and “moral reduction. “hesitate provided Nevertheless, prece- no new infor- given P.2d at 1014. law ty.” the case in his for reduction of his majority opinion mation motion in the dents set forth Sheahan, Upon review of the record sentence. before State v. Docket No. court the time of denial
the district Idaho 2003 WL motion, no conclude 2003), Kuhn’s Rule we abuse (Aug. “firmly I am convinced” that by has been discretion shown. will overturned this instruction judicial authority.
higher also State v. See Merwin, III. However, stronger I tone would take CONCLUSION by than that articulated the Idaho conclude Kuhn has established We trial “encouraging” courts given in that the reasonable doubt instruction unnecessary appeals controver- to “avoid constitutionally his case was deficient. (I.C.J.I.103) sy by utilizing the instruction by instructions the trial defining accepted history has an whole, fairly accurately re-
viewed as Rather, I burden the state bears.” would applicable flect the affirm the dis- law. We to use this in- exhort the trial bench NOT denying Kuhn’s trict court’s order motion to struction, period, or otherwise risk reversal prospective juror. We further con- exclude supervisory/regulatory appellate in our role although prosecutor improper- clude that over trial courts. ly closing and commented rebuttal rise arguments, the statements do not to the B. Prosecutorial Misconduct Finally, level of fundamental error. we con- fully agree I the state committed clude that failed to show the dis- closing argu- prosecutorial misconduct in its denying trict court abused its discretion highlights ment. The of this misconduct Accordingly, Rule 35 motion. quoted should at least be for future reference judgment of sentence conviction and and the enlightenment: denying order his Rule 35 motion af- firmed. Yet, hand, a lot of on the other there’s *8 Judge concurs.
Chief LANSING about what motivation for Mr. to lie happened. And lie he He lied and he did. Judge Pro Tern SCHWARTZMAN you He and lied he lied. lied to he and Specially Concurring. hearing. people at other lied to the opinion I concur the Court’s here- While you And about his lies in let me tell terms in, separately I feel constrained to write on today people of with the and back major points they raise concerns two because healing. other for future cases. closing And in rebuttal: A. The Reasonable Doubt Instruction Now, “willing giving my things to of those
I am act” in vote for a lot different affirmance, you today. do he told folks And but so not “without hesitation” what certainty” perjury, not with the that this there is “moral difference called fully brought up. has It counsel] is [defense instruction and best embraces heavy very perjury. you If And have to state’s burden of this in- clear-cut yourself thief, why why lie, ask would a would and all defendants the comments do not a man who has been of theft four convicted rise to the level of It fundamental error. times, go or five perjury. would, however, and commit behoove defense counsel to fairly is simple. answer It’s because he type rise from chair this of his/her did aets that he has been accused of. argumentation overzealous' an and offer ob- perjury any one No commits other jection give judge opportunity to the trial reason. say, “Enough, already,” any to and correct thing you Now there is another error; having rather than on rely you need consider when think about his doctrine of fundamental purposes error for lies, perjury/ his You need consider appeal. he ran. how go
I could on on and on and about But, lies back to the people other in here. you only here, can come to one conclusion
that his lies were for a reason that’s to responsibility
evade what he did.
dent which comes under very attorney tion prosecuting making allegation in closing argument. Such carries with implied rhetoric it the assertion yet that the defendant has committed anoth- prosecutor’s personal er crime and the belief therein, together possibility with the that he independent charges institute criminal will the trial is over and the has done duty convicting liar/perjurer. its At *9 least, very these comments more troubling than artful. less than See Lovelass, 233, 242 (Ct.App.1999). argumentative While misconduct here generate heat than tends rather diffuse light, prosecutorial and relies on the ca- old all
nard that state’s witnesses tell the truth