STATE OF IDAHO, Plaintiff-Respondent, v. PRESTON ADAM JOY, Defendant-Appellant.
Docket No. 38190
IN THE SUPREME COURT OF THE STATE OF IDAHO
June 25, 2013
2013 Opinion No. 78
HORTON, Justice.
Coeur d’Alene, April 2013 Term; Stephen Kenyon, Clerk
Appeal from the District Court of the First Judicial District of the State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.
The judgment of conviction is vacated and the case is remanded for a new trial.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth Jorgensen argued.
HORTON, Justice.
Preston Adam Joy was charged with felony domestic battery, sexual penetration by a foreign object, and second-degree kidnapping in connection with an altercation with his wife, Jennifer Joy. A jury convicted Preston of domestic battery, acquitted on the sexual penetration charge, and was unable to reach a verdict on the kidnapping charge. He then entered a conditional guilty plea reserving his right to appeal all of the district court’s pre-trial, trial, and post-trial rulings. Preston timely appeals, arguing that evidence of prior misconduct was erroneously admitted, that the district court made other errors in admitting evidence, and that the district court erred by refusing to instruct the jury on lesser included offenses. We vacate the judgment of conviction and remand for a new trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the night of July 28-29, 2009, sheriff’s deputies in Kootenai County, Idaho responded to a domestic disturbance call at the home of Preston A. Joy and his wife, Jennifer Joy. According to Jennifer, Preston became physically abusive during an argument earlier that evening concerning the location of his keys and cell phone. The police conducted an investigation and, after questioning both Preston and Jennifer, Preston was arrested. He was eventually charged with three felonies: second degree kidnapping, domestic battery, and penetration by a foreign object.
Before the trial, pursuant to
Also prior to trial, the district court considered the State’s motion to quash Preston’s subpoena duces tecum, by which he sought to examine the Joys’ personal computer. Preston asserted the computer contained exculpatory photographic evidence showing that he and Jennifer had engaged in consensual sex involving bondage, which he claimed was relevant to explain the source of some of Jennifer’s injuries, and that Jennifer had previously consented to being anally penetrated with a dildo, which he claimed was relevant to impeach Jennifer’s testimony. The district court granted the State’s motion to quash, expressly noting that the ruling was based
At trial, Jennifer testified that on the night of July 28-29, 2009, Preston pushed her into a bathtub full of water, slapped and punched her, pulled her hair, held her head under the water and gagged her with a kitchen towel. At some point, according to her testimony, Preston drained the tub and removed her clothing, then tied both of her wrists to one of her ankles with a shoelace and penetrated her anus with a dildo. She further testified that he then removed her from the tub and dragged her, naked, to his vehicle and drove her to a remote area of their property where he continued to abuse her and threatened to leave her tied to a tree if she did not tell him the location of his keys and phone. She alleged that after she falsely told him she could show him where those items were located, he untied her and took her home, where she waited until he went to sleep and then called the police.
Preston disputed her account of the events of that night, testifying that Jennifer was intoxicated and that she was the initial aggressor who initiated the physical violence. According to Preston, he had to defend himself by using his arms to block her attacks and, after she struck him in the face with her knee, he defended himself by kicking at her to permit him to escape. He further testified that he left the house, that Jennifer followed him and tripped, which caused her to fall off the deck. Then, according to Preston, she charged at him and missed, which caused her to fall over a fence and down an embankment. He also testified that Jennifer came back up the embankment, still angry, and he left in his vehicle. When he returned, he started packing a bag and got back into his vehicle, intending to leave. According to Preston, Jennifer then voluntarily got into his vehicle with him and, after he moved the truck away from the house, she convinced him not to leave. Preston also testified about the four allegations of prior abuse, asserting that he did not have anal intercourse with Jennifer against her will and that in each of the alleged instances of domestic violence, Jennifer had been drinking alcohol and was the aggressor. Preston also offered the testimony of his son, Jonathan Joy, who testified that in the July 19, 2009 allegation, Jennifer had been drinking and was the initial aggressor.
The defense also offered several instances of inconsistent statements Jennifer made regarding the events of July 28-29, 2009, including: whether she removed her own clothes or Preston stripped her before pushing her in the tub; whether Preston used the dildo to penetrate her vaginally or anally; and whether she willingly got into Preston’s vehicle after she got out of the bathtub or was forced into the vehicle. As rehabilitation evidence, the State offered evidence of Jennifer’s prior consistent statements. The emergency room doctor who treated Jennifer testified that she told him she had been tied up and forced into the bathtub. Detective March testified that Jennifer told him she was clothed when she was pushed into the bathtub, that Preston tied her with a shoelace and anally penetrated her with a dildo, and that he forced her, still bound, into his vehicle. The State also offered portions of Jennifer’s preliminary hearing testimony, in which she stated that Preston stripped her clothing off before he pushed her into the bathtub, tied her with a shoelace, and anally violated her.
The jury found Preston guilty of domestic battery and not guilty of sexual penetration by a foreign object, but it did not reach a verdict on the kidnapping charge. The State requested a new trial on the kidnapping charge, and the district court set a date. Prior to that trial, Preston entered a plea agreement with the State in which he agreed to enter a conditional guilty plea, pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). The State stipulated to concurrent sentences for kidnapping
II. STANDARD OF REVIEW
A trial court has “broad discretion” in determining whether to admit or exclude evidence, “and its judgment in the fact finding role will only be disturbed on appeal when there has been a clear abuse of discretion.” State v. Watkins, 148 Idaho 418, 421, 224 P.3d 485, 488 (2009) (quoting State v. Gleason, 123 Idaho 62, 65, 844 P.2d 691, 694 (1992)) (emphasis original). However, whether evidence is relevant is a question of law this Court reviews de novo. State v. Shackelford, 150 Idaho 355, 363, 247 P.3d 582, 590 (2010). “A three point inquiry is used to determine whether a trial court has abused its discretion: (1) whether the court correctly perceived the issue as one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether the trial court reached its decision by an exercise of reason.” State v. Pepcorn, 152 Idaho 678, 686, 273 P.3d 1271, 1279 (2012) (citing State v. Perry, 150 Idaho 209, 218, 245 P.3d 961, 970 (2010)). Additionally, even if there is “an incorrect ruling regarding evidence, this Court will grant relief on appeal only if the error affects a substantial right of one of the parties.” Shackelford, 150 Idaho at 363, 247 P.3d at 590 (quoting Obendorf v. Terra Hug Spray Co., 145 Idaho 892, 897, 188 P.3d 834, 839 (2008)); see also
“The issue of whether a particular jury instruction is necessary and whether the jury has been properly instructed is a matter of law over which this Court exercises free review.” State v. Adamcik, 152 Idaho 445, 472, 272 P.3d 417, 444 (2012) (quoting State v. Zichko, 129 Idaho 259, 264, 923 P.2d 966, 971 (1996)). However, “[a]n erroneous instruction will not constitute reversible error unless the instructions as a whole misled the jury or prejudiced a party.” State v. Draper, 151 Idaho 576, 588, 261 P.3d 853, 865 (2011) (citing Shackelford, 150 Idaho at 373–74, 247 P.3d at 600–01). Whether an offense is an “included offense of the crime charged involves a question of law over which this Court exercises free review.” State v. Flegel, 151 Idaho 525, 527, 261 P.3d 519, 521 (2011) (quoting State v. Rosencrantz, 130 Idaho 666, 668, 946 P.2d 628, 630 (1997)).
III. ANALYSIS
A. The district court erred in refusing to give Preston’s requested instructions on lesser included offenses.
Preston argues the district court erred in refusing to give instructions on the lesser included offenses of misdemeanor domestic battery and false imprisonment because a view of the evidence exists that would support a finding that he committed the lesser offenses but not the greater. The State contends that the evidence did not support giving either lesser included instruction or, alternatively, that any error in failing to give the requested instructions was harmless. As explained below, we vacate the district court’s judgment of conviction for felony domestic battery. However, while not necessary
The “acquittal first” rule is based upon
If a lesser included offense is submitted to the jury for consideration, the court shall instruct the jury that it may not consider the lesser included offense unless it has first considered each of the greater offenses within which it is included, and has concluded in its deliberations that the defendant is not guilty of each of such greater offenses.
The Court of Appeals in these cases reasoned that even if the jury is instructed on a lesser included offense, it also would have to be instructed to decide whether the defendant is guilty of the greater charge first, and only to consider the lesser included offense if the jury unanimously finds the defendant is not guilty of the greater charge. E.g., Hudson, 129 Idaho at 480-81, 927 P.2d at 453-54. Idaho appellate courts also presume that a jury follows the instructions it is given. Id. at 481, 927 P.2d at 454 (citations omitted). Thus, it must be presumed that a jury would follow the acquittal first instruction. In cases where the defendant challenges the failure to give the included offense instruction after a guilty verdict, this leads to the conclusion that the jury would never consider the included offense instruction because “there is no reason to believe under these circumstances, that the jury would have come to any different conclusion concerning the [greater] charge.” Curtis, 130 Idaho at 528, 944 P.2d at 125. Under this analysis, any error by the district court in failing to give the lesser included offense instructions Preston requested was harmless error. We agree with the legal reasoning articulated by the Court of Appeals and hereby adopt it for analyzing harmless error in challenges to the district court’s failure to give an instruction on lesser included offenses where the defendant requests the instruction and demonstrates he is entitled to it.
We also note that this Court has articulated “two theories under which a particular offense may be determined to be a lesser included offense of a charged offense.” State v. Flegel, 151 Idaho 525, 527, 261 P.3d 519, 521 (2011) (quoting State v. Curtis, 130 Idaho 522, 524, 944 P.2d 119, 121 (1997). In Flegel, this Court set forth the first theory, called the statutory theory, as follows:
Under this theory, one offense is not considered a lesser included of another unless it is necessarily so under the statutory definition of the crime. We apply the Blockburger test, . . . [Blockburger v. United States, 284 U.S. 299 (1932)], to determine whether an offense is a lesser included offense under the statutory theory. An offense will be deemed to be a lesser included offense of another, greater offense, if all the elements required to sustain a conviction of the lesser included offense are included within the elements needed to sustain a conviction of the greater offense.
151 Idaho at 527, 261 P.3d at 521 (citations and internal quotation marks omitted). The Flegel Court also set forth the second theory, known as the pleading theory. “This theory holds that an offense is an included offense if it is alleged in the information [or indictment] as a means or element of the commission of the higher offense.” Id. at 529, 261 P.3d at 523 (citations and internal quotation marks omitted).
Here, misdemeanor domestic battery is a lesser included offense of felony domestic violence and false imprisonment is a lesser included offense of second degree kidnapping. The elements of felony domestic battery are: (1) commission of a battery, (2) by one household member, (3) against another, (4) which results in a traumatic injury. See
B. The district court erred in admitting evidence of Preston’s prior conduct.
Preston argues that the district court erred in its decision to admit evidence concerning four prior incidents in which Preston allegedly abused Jennifer. He contends that the evidence is inadmissible character evidence that is not relevant for any purpose permitted under
Generally, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”
Evidence of a defendant’s prior misconduct is not admissible unless it is relevant to the charged offense. Under this part of the analysis, the evidence “must be sufficiently established as fact and relevant as a matter of law to a material and disputed issue other than the character or criminal propensity of the defendant.” State v. Pepcorn, 152 Idaho 678, 688, 273 P.3d 1271, 1281 (2012) (citing Johnson, 148 Idaho at 667, 227 P.3d at 921; State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185, 1188 (2009)).4 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 probable or less probable than it would be without the evidence.”
In Grist, this Court noted that the “common scheme or plan” contemplated by
The mere fact that the charged and uncharged conduct is similar does not by itself establish the admissibility of prior conduct evidence to show a common scheme or plan. In a case where the defendant was charged with lewd and lascivious conduct with a minor under sixteen, we held that the district court erred in admitting evidence the defendant had abused his sister when she
Here, Jennifer testified that on the night of July 28-29, 2009, an argument between Preston and Jennifer became violent. According to her testimony, Preston shoved her into a bathtub full of cold water where he repeatedly held her head under the water for several seconds at a time, punched her, and slapped her with the front and back of his hand. She testified that he gagged her with a hand towel, removed her clothes, tied both of her wrists and her left ankle together behind her back, and anally penetrated her with a sex toy. According to her testimony, Preston then dragged her to his vehicle while she was still bound, forced her into it, and drove to the back of their property where he continued to hit and slap her. She testified that he threatened to tie her to a tree and leave her there for the bears and mosquitoes to “eat alive” if she didn’t give him information about his cell phone and keys. According to Jennifer, she falsely told him she knew where those objects were, and he untied her and took her home. When Preston fell asleep in their bedroom, Jennifer called the police and he was eventually charged with second degree kidnapping, felony domestic battery, and sexual penetration with a foreign object.
Pursuant to
We hold that this evidence is not relevant to show a common scheme or plan because it merely shows the manner in which Preston has allegedly abused Jennifer in the past, and does not demonstrate a planned course of connected behavior. The district court determined that the prior conduct evidence was relevant to demonstrate a common scheme or plan of abuse. In reaching its decision, the court specifically noted (1) that the nature of the prior conduct was similar to the charged offense because it involved the same victim, slapping and restraint, and sexual penetration against the victim’s will; and (2) that each incident of prior abuse happened within a short time of each other and of the charged conduct. However, the similarities between Preston’s prior misconduct and the charged conduct are essentially the
For example, the primary similarity between the alleged prior domestic abuse and the charged conduct is the method of abuse Preston is alleged to have used. In each instance, Jennifer testified that Preston restrained her and then hit her in the face with his open hand, alternating between the front and back of his hand. While the events are similar and occurred close together in time, they do not constitute “a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other,” as required under Grist. Rather, they are merely suggestive of Preston’s predisposition for domestic violence, precisely the kind of character evidence barred by
Similarly, the evidence of prior sexual abuse is not relevant. There is no evidence that the two events were part of a plan to sexually abuse Jennifer. While the conduct was similar, the only way the prior misconduct makes the charged conduct more likely to have occurred is by propensity. In other words, proof of the alleged anal rape would tend to establish the later forcible penetration only via the impermissible inference that “if he did it once, he probably did it again.” Further, given that the prior conduct occurred in a very different setting from the charged conduct, which involved an ongoing physical confrontation between Preston and Jennifer, and that the charged conduct involved a foreign object, the two incidents are too attenuated to be relevant to motive or absence of mistake. Therefore, Jennifer’s testimony concerning the prior sexual misconduct is not relevant to a permitted purpose under
2. Harmless error
Because we have determined that the challenged testimony in this case is not relevant to a permitted purpose under
To meet that burden, the State must “prove[] ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.‘” Id. at 221, 245 P.3d at 973 (quoting Chapman, 386 U.S. at 24). Interpreting Chapman, the Supreme Court of the United States has explained that:
To say that an error did not “contribute” to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous. . . . To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.
Yates v. Evatt, 500 U.S. 391, 403 (1991), overruled in part on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 n. 4 (1991). Thus, an appellate court’s inquiry “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279 (1993).
In this case, the error in admitting the evidence of prior misconduct is not harmless because the jury’s verdict on the felony domestic battery charge cannot be said to be
When we vacate a conviction and order a new trial, we are also required to “pass upon and determine all the questions of law involved in the case presented upon such appeal, and necessary to the final determination of the case.”
C. The district court abused its discretion in quashing Preston’s subpoena duces tecum.
Preston argues the district court erred in granting the State’s motion to quash his subpoena duces tecum because it considered the motion under the wrong standard. He contends that
Under the Idaho Criminal Rules, “[a] subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein.”
Here, Preston obtained a subpoena duces tecum to obtain sexually explicit images from Jennifer’s computer that he believed would impeach her by demonstrating that she had made false statements to the police about the nature of her sexual relationship with Preston and would rebut the State’s evidence regarding the cause of the ligature marks found on Jennifer’s wrists and ankles.6 The State moved to quash the subpoena, initially arguing that the subpoena should be quashed under
Eventually, the district court granted the motion to quash based solely upon Preston’s failure to comply with
While Preston was acquitted of the forcible penetration charge, the computer potentially contained significant evidence regarding Jennifer’s credibility. Evidence that goes to the credibility of a complaining witness is normally admitted under a broad standard. See, e.g., State v. White, 97 Idaho 708, 713, 551 P.2d 1344, 1349 (1976) (citations omitted) (“This court has consistently held that where a defendant is seeking on cross-examination to show bias or test the credibility of the complaining witness, the trial court should allow considerable latitude.“)8 Further, Preston is entitled to conduct his own review and investigation of the evidence. If he discovers evidence that he wishes to offer at trial, the district court will have the opportunity to consider its relevance at that time. However, a trial court does not have discretion to restrict a defendant’s access to potentially admissible evidence because some of it might be irrelevant.
D. The district court’s evidentiary rulings during the trial.
Preston also asserts the district court made several errors in its decisions to admit or exclude evidence during the trial. We address these errors separately below.
1. Out-of-court statements - Admission of Jennifer’s preliminary hearing testimony
Preston argues the district court erred in admitting Jennifer’s preliminary hearing testimony as prior consistent testimony pursuant to
The Idaho Rules of Evidence define hearsay as an out-of-court statement “offered in evidence to prove the truth of the matter asserted.”
Here, Jennifer would have had a motive for fabrication regarding the events on the night in question prior to her testimony at the preliminary hearing. The record shows that Jennifer and Preston were divorcing and that Jennifer filed for divorce before the preliminary hearing. Both parties sought a significant portion of the marital property, and the divorce thus provided Jennifer with a motive to lie. Consequently, the evidence was not proper under
Further, the preliminary hearing testimony admitted on re-direct was not relevant to explain or qualify the preliminary hearing testimony admitted during cross-examination. On cross-examination, defense counsel pointed out two inconsistencies between Jennifer’s testimony at the preliminary hearing and her trial testimony. First, her testimony was inconsistent regarding the April 10, 2009, incident and whether Jennifer’s hands were restrained at her side or behind her back. Second, she gave conflicting testimony about the order of events and at what point Preston let water out of the tub on July 28-29, 2009. On re-direct, the State asked Jennifer to read her preliminary hearing testimony regarding how many times and for how long Preston held her head under water in the bathtub on July 28-29, 2009, how Preston gagged her with a towel on that night, how and when he tied her with a shoelace, and when he penetrated her with a sex toy. While this testimony shows some prior inconsistent testimony, the purpose of
2. Out-of-court statements - Admission of Jennifer’s statements to Detective March
Preston argues the district court erred in permitting the State to impeach Jennifer’s testimony with prior inconsistent statements recounted by a detective who interviewed Jennifer after the night in question. He contends the testimony is inadmissible hearsay. The State contends that, because Jennifer’s credibility had been attacked through the use of out-of-court statements, the detective’s testimony was admissible under
An out-of-court statement “offered in evidence to prove the truth of the matter asserted” is inadmissible hearsay unless another Rule provides for its admission.
In this case, defense counsel, while cross-examining Kootenai County Sheriff’s Deputy Ellis, elicited out-of-court statements that Jennifer made to the deputy that contradicted Jennifer’s trial testimony. The State then called another Kootenai County Sheriff’s Deputy, Detective March, and asked him to recount statements Jennifer made to him about the night of July 28-29, 2009. Preston’s counsel objected on the ground the testimony was hearsay and the State countered that the testimony was admissible as prior consistent testimony to rehabilitate Jennifer’s credibility after Deputy Ellis’s testimony, and the court overruled the objection without comment. As any motive to fabricate that Jennifer may have had existed at the time she contacted law enforcement about the events of the night of July 28-29, her statements to Detective March were not admissible under
3. Admission of Exhibit 46 (boot lace)
Preston argues the district court erred in admitting Exhibit 46 because the State failed to sufficiently authenticate it. In reply, the State argues it provided proper foundation and that defense counsel’s concerns go to the weight of the evidence, not its admissibility.
The Idaho Rules of Evidence require “authentication or identification as a condition precedent to admissibility,” which “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”
In this case, if the State contends Exhibit 46 is either the boot lace allegedly used to tie Jennifer (or the remaining twin), additional foundation is necessary for its admission. First, Jennifer’s sister-in-law testified that she “came across a boot lace in Preston’s nightstand drawer and turned it over to Sergeant March.” However, Detective March testified that he spoke to Jennifer on August 3, 2009, and that it was Jennifer who gave him a zip-top baggie containing a brown bootlace. When Jennifer was shown Exhibit 46 during the trial, she confirmed that her sister-in-law found the lace, but was not clear as to the nature of the boot lace:
Q: And then what about Number 46?
A: That’s the shoelace or the boot lace that I’m pretty sure it was exactly like this one. I’m pretty sure that’s the one he used. My sister-in-law found it.
Q: And is that the same one you gave to Detective March?
A: Yes.
Q: Are you exactly sure it’s the same one?
A: I’m not exactly sure if it’s the same one, but I know that’s the exact same kind he used.
From this record, there is contradictory evidence as to who delivered the boot lace to Detective March. Inasmuch as this boot lace bears no unique identifying characteristics, if the State wishes to admit the boot lace as the one used in the commission of the alleged offense (or its remaining twin) then the State must demonstrate the chain of custody in order to satisfy the requirements of
4. Improper inquiry by the State – Cross-examination outside scope of direct examination
Preston argues that the district court permitting the State to cross-examine him about whether he was attending alcohol treatment classes was an abuse of discretion because the inquiry was outside the scope of the direct examination. The State replies that the questioning was proper because it was related to Preston’s credibility.
Under the Idaho Rules of Evidence, the trial court “shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.”
Here, defense counsel asked Preston about his reasons for telling Jennifer he was going to leave their marriage. In response, he testified that Jennifer had agreed to attend alcohol abuse counseling, but never did and that he felt she was not going to make “an honest attempt to quit drinking.” On cross-examination, the State challenged Preston’s testimony, asking whether it was true that he was actually “supposed to be” attending treatment. The district court overruled defense counsel’s objection that the question was outside the scope of the direct examination, and Preston answered the question. The prosecutor also asked Preston whether he had been “in some kind of trouble for not being in treatment,” and, after another overruled objection, he answered “no.” It was error to admit this testimony. The line of questioning suggests that Preston was legally required to attend alcohol abuse counseling. However, the State did not show that the underlying reason for compulsory alcohol abuse counseling was relevant. Therefore, the testimony regarding Preston’s alcohol abuse treatment was inadmissible.
5. Improper inquiry by the State – Cross-examination requiring witness to speculate
Preston argues the district court erred in permitting the State to cross-examine Preston about another witness’s testimony because the questioning called for speculation. The State replies that the questioning was proper because it only required Preston to offer an inference based upon his personal knowledge.
The Idaho Rules of Evidence provide that a lay witness may give testimony containing an opinion or inference if the testimony is “limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue, and (c) not based on scientific, technical or other specialized knowledge . . . .”
In this case, the defense called Preston’s son, Jonathan Joy, as a rebuttal witness regarding one of the instances of prior misconduct admitted by the State. Counsel elicited Jonathan’s testimony that on the evening of July 19, 2009, he saw Preston and Jennifer in an argument and that he saw Jennifer striking Preston with her hands but did not see Preston hit Jennifer. On cross-examination, Jonathan testified that he did not call the police after he saw Jennifer commit battery against Preston and volunteered the following information about his reason for not calling the police:
Q: Did you tell the police what happened, that crime you say you saw?
A: No. And my dad wouldn’t either. Girls hit guys. It’s – I mean, girls do that so I don’t – I don’t know what to tell you.
Q: Girls do that as a matter of course?
A: What’s that?
Q: Girls do that regularly?
A: Girls do that because they can.
Q: What do you mean by girls do that because they can?
A: I mean that – I meant that, uh, girls can be a lot more violent and not get consequences for it. I mean that girls can hit a guy in the face several times and it
not leave a bruise. I mean that – I don’t know what you want me to say.
Later, while cross-examining Preston, the State asked him about his son’s testimony and specifically whether Jonathan’s statements about women being able to get away with hitting men because men don’t show bruises were “beliefs your son has come by himself independent of you?” The district court overruled an objection that the question called for speculation and the question was restated as “How’d your son come up with beliefs like that?” Preston explained that by growing up farming, hunting, riding motorcycles and horses, Jonathan had observed that men do not bruise easily. After another overruled objection for speculation, the prosecutor asked whether Preston “ever gave [Jonathan] any cause to believe” that when a man gets hit by a woman, it does not leave a mark. After an overruled objection of “asked and answered,” Preston answered in the affirmative, explaining that Jonathan had seen Preston get hit in the face without showing a bruise and admitted that he had also talked to Jonathan about the concept, though not in preparation for the trial. The trial court erred in permitting this line of questioning because it required Preston to speculate regarding Jonathan’s beliefs and how he acquired them, in violation of
6. Improper inquiry by the State – Cross-examination outside witness’s personal knowledge
On cross-examination, Preston described Jennifer’s appearance at one point in the night in question as “filthy and dirty,” with “sticks and leaves in her hair.” The prosecutor then asked Preston a number of questions as to how many sticks and pieces of brush were in her hair, despite Preston’s repeated statements that he did not know. As the record does not permit this Court to determine whether this questioning crossed the line from legitimate efforts to probe the witness’s memory to badgering, we decline to provide any guidance on remand other than to observe that the trial court may exercise its discretion to exclude even relevant evidence “if its probative value is substantially outweighed by . . . considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
IV. CONCLUSION
Because the district court erred by admitting evidence of Preston’s prior misconduct, we vacate the judgment of conviction and remand for a new trial on the remaining charges of domestic battery and kidnapping.
Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES CONCUR.