*1 part II the “arguendo Court assumes negligent spoliation that the tort of of evi- part
dence is of Idaho.” I law am prepared assumption, to make even argument.
for the sake of I would hold rejection the trial court’s of the in- spoliation request-
struction of evidence Murrays affirmed,
ed should be correctly
because the instruction did not
state the law of Idaho.
STATE of SOURA,
John Raoul
Defendant-Appellant.
No. 17412/17948.
Supreme of Idaho. Court
July Moscow, Barker, Ray defendant-
D. appellant. *2 suppress (1) to Gen., by denying his motion Jones, A. erred Atty. Michael
Jim after police officer made to a Henderson, Atty. (argued), statements Deputy Gen. had indi- allegedly Boise, his after plaintiff-respondent. arrest and for attorney, an with cated a desire to consult BAKES, Justice. Chief (3) by (2) misinstructing jury, sus- the element taining jury’s verdict on appeals Raoul Soura Defendant John legal give consent the woman’s rape infa- a for and the from conviction intercourse, (4) by to an act of sexual rape against mous crime nature. Soura’s unduly se- imposing a which was sentence upon having sexu- conviction was based his of the offenses considering the nature vere in- a woman who was al intercourse with defendant. We of the and the character legal due un- giving capable of judgment and sen- affirm the trial court’s sentenced soundness of mind. Soura was tence. years rape, to fifteen to a term of ten five-year term for
and a concurrent
against nature.
infamous crime
I
charged
raping
young
a
Soura was
with
first
appeal
On
Soura
asserts
during
sometime
married woman
erroneously admitted statements
trial court
charged
April,
He
also
month of
1987.
police investi
allegedly made
Soura to
committing
crime
the infamous
with
gator
June
after
Ron Baune on
The
against
against nature
woman.
his desire to
claims to have indicated
Soura
charged
accom-
information
Soura with
attorney.
upon
consult with
by having
inter-
plishing
rape
record,
see no evidence
of the
we
review
female,
wife,
a
not his
who
course with
police
informed the
that the defendant ever
through
incapa-
unsoundness of mind was
invoking
his
as set forth
that he was
legal
act.
giving
such
ble
Arizona,
in
384 U.S.
Miranda v.
appeal is
primary
factual issue on this
(1966),
1602, 16
to consult
S.Ct.
L.Ed.2d
that,
light
in
her
claim
even
undergoing ques
attorney
before
disabilities,
capable
mental
the woman was
attorney present
tioning or
have an
dur
giving
engage
consent to
in sexual
contrary,
ing questioning. On the
intercourse with Soura.
effectively
record indicates that Soura
rights on two occa
acquainted
his Miranda
and the woman became
waived
Soura
Furthermore,
December,
the defendant made
as a
sions.
in
Soura worked
prior
officers
statements to other
quadriplegic
aide for a
man who similar
nurse’s
with Officer
and her
the contested discussion
lived near the woman
husband.
statements,
husband,
wife,
Baune. These other
The woman’s
like his
was a
to,
following
objected were made
The wom- were not
person with mental disabilities.
rights.
waiver of his Miranda
night janitor
a Soura’s first
an’s husband worked as
is substan
During
early part
The content of these statements
motel.
local
spent great
tially
deal of
similar
the content
subse
and the woman
Soura
objected.
quent
her
statements to which Soura
together socializing while
husband
time
the woman
slept or worked. Soura and
Soura was ar-
The record indicates that
to-
began to have sexual intercourse
soon
a probation
on
rested on June
April,
moved into
early
Soura
gether.
sex of-
violation warrant on
unrelated
trailer, where the acts of sexu-
couple’s
County. The follow-
out
Bonner
fense
continued,
where Soura
intercourse
al
spoke
ing day
Jake Kershisnik
Detective
cunnilingus
committed an act of
allegedly
his involvement with the
with Soura about
the woman.
involved in this case. Kershisnik
woman
orally and writ-
light,
informed the defendant
Soura
When this conduct came
rights.
waived
by jury
his
of Miranda
charged and later convicted
gave a
18-6101,
at that time and
infamous
his Miranda
rape,
and the
I.C.
§
later testified was vol-
nature,
On
which he
18-6605.
statement
I.C.
crime
§
Kershis-
untary.
In his conversation with
alleges
trial court
that the
appeal, Soura
nik, Soura admitted that he had been
speak
trial,
sexu-
further. At
Baune testified
ally involved with the woman since
during
Janu-
that conversation Soura admit-
ary, 1987.
acknowledged
having
ted to
sexual intercourse with the
slow,”
woman
“very
woman
very
and “not
about twelve
January
times from
*3
competent.”
1, 1987,
April
He said that “she
extremely
can’t tell
that “she was
guy’s
when a
coming
passive
responsibility
on to her.”
and it was his
sug-
Soura
gest
told Kershisnik:
activity
each time.” The
rape and
charges
infamous crime
were
you
If
were to look at
and tell her
[her]
filed
polygraph
after this
examination took
get undressed, get
bed,
into
she would
place.
you
it,
do it if
told her to do
you
if
asked
it,
her to do
you
she’d tell
say
no or she’d
Soura
appeal
contends on
that the trial
to,
Ido have
you
but if
looked at her and court erred in admitting these statements
gave
it,
her an order do
she would do it. which were made after he claims that he
had invoked
time,
right
his Miranda
At
to consult
Soura told the detective
attorney
question
before further
Kershisnik that he
poly-
wanted to take a
ing. Soura contends
graph examination,
questioning
and an exam was set
produced
11,
objectionable
state
for June
ments violated the rule in Edwards v. Ari
making
After
these statements to Kersh-
zona,
477,
1880,
451 U.S.
101 S.Ct.
68
isnik, but
polygraph
before the
examina-
(1981),
L.Ed.2d 378
which held that a defen
tion,
alleges
occasions,
Soura
that on two
dant, “having expressed his desire to deal
9, 1987,
on June 8 or
attempted
he
to make
counsel,
police only through
with the
is not
long distance telephone contact with an
subject to
interrogation by
further
the au
attorney
appointed
who had been
repre-
thorities until counsel has been made avail
sent him on an
probation
earlier
violation
him,
able to
unless the accused himself
charge.
placed
This call was not
because it
communication,
initiates
further
ex
Latah County jail policy to
changes, or
police.”
conversations with the
long
allow
distance calls. There is no indi-
484-85,
but his wife. After further
make
statement. The
agreed
Fouche
to
a
second as
we consider Soura’s
Next
approved
the state-
the admission of
court
was convicted of
of error. Soura
sertion
into evidence and held that Edwards
ments
as
violating
provides
18-6101 which
I.C. §
prop-
the officers had
apply
did not
rape: “an act of sexual
one definition of
ambiguous
erly clarified the defendant’s
she is
with a female ... where
intercourse
remarks.
through lunacy
any other
incapable,
[or]
mind,
temporary
of
whether
reviewing the record and unsoundness
After
giving legal
presented
permanent, of
consent.”
arguments
parties
on or
jury was misin
proper
argues
it
that
appeal,
is evident
Soura was
this definition because Instruc
ly informed of his
on June
structed on
Miranda
1987,
1987,
following
5,
11,
10 contained the
sen
again on
and tion No.
and
June
appre
“Inability
At
to understand and
that he waived them both occasions.
tence:
police
[e.g.,
results
social ostracism
time did Soura inform the
ciate such
invoking
stemming from unlawful sexual
inter
his
to have counsel
inability to
present during questioning
any
or
desire to
and their effect and the
course]
incapa
police only
knowing
his
a
choice renders one
through
with the
coun make
deal
case,
legal
giving
or
con
intelligent
We
cited to no
nor are
ble of
an
sel.
have been
added.)1
case,
(Emphasis
any
to the act.”
we aware of
which holds that
sent
reference to “intel
right is invoked when a defen Soura contends that the
Miranda
consent,”
from
v.
unsuccessfully
ligent
to
contact
taken
State
Cos
dant
tries make
277,
ier,
279
questioning is
228 P.
attorney
while no
Idaho
(1924),
place.
wrong because it instructs the
taking
therefore conclude that
We
the woman was
jury
of
to determine whether
there was no violation
Soura’s Miranda
choice,
testimony
incapable making
intelligent
an
rights and that
of
Officer Baune’s
i.e.,
good judg-
could
v.
whether she
exercise
properly
admitted. Connecticut
material elements of the crime
doubt all other
1. Instruction No.
stated in full:
rape,
the act of sexual
mentally
of
that at
time
equal.
persons
Un-
All
are
of
is a relative term. For a
occurred between the defendant
soundness mind
intercourse
capable
legally
giving
person
of
woman]:
and [the
intercourse,
person
mind;
of sexual
such
act
(1)
unsound
and
[The
of
woman]
knowledge
necessity
must
have some
of
of
(2)
of
such unsoundness
mind
Because of
naturally
consequences of the results that
incapable
giving legal
[she]
act,
of-
flow
such
that an unlawful act
from
such act
sexual intercourse.
law,
more or
fends
the moral
results
Instruction No. 9 stated:
addition.
ostracism,
a
be able to make
less in social
knowing
and
if
A
is of unsound mind
she
woman
or not to en-
choice as whether
incapable
normally managing
or
herself
gage
Inabil-
in such act of sexual intercourse.
manner. Un-
her affairs in
reasonable
ity
appreciate
to understand and
such results
woman’s
soundness of mind exists when the
effect and the
to make
and their
fundamentally
powers
lack-
are
intellectual
giv-
knowing
incapable
one
choice renders
incapable
ing,
where she is
of under-
or
intelligent
legal
or
consent to the act.
acting
standing and
with discretion in the
Thus,
you
de-
cannot find the
in this
term,
ordinary
"unsound-
affairs
life.
rape
guilty
unless the
fendant
of the crime
mind,"
range
doubt,
thus
of men-
ness of
includes
beyond
proves
a reasonable
State
impairment.
proving beyond
tal
a reasonable
addition
merit.
argues
that a better
marry
engage
standard
consent to
in sexual
defining
legal consent is to determine
husband,
relations with her
and thus she
whether
intelligence capable
she has “an
legally
could
give
engage
consent to
understanding”
nature
and conse-
Soura,
(2)
sexual relations with
had the
quences of sexual intercourse.
capacity
legally
consent to terminate her
parental
relationship with her
infant
persuaded by
We are
argu-
Soura’s
daughter and therefore had the
capacity
Cosier,
ment
supra,
State v.
sets
engage in sexual intercourse with Soura.
forth an
confusing
erroneous and
standard
suggested
that his
alternative is neces-
persuaded by
We are not
argu
sarily
better.
particu-
Instruction No.
grounded
ments which are
on his view of
larly when
together
read
with Instruction
logical
factual circumstances and
infer
9,2
No.
properly
ability
give
defines the
appellate
ences.
court must review
“[A]n
(1)
consent in terms of
ability
to the evidence
prevail
most favorable to the
appreciate
possible
understand and
con-
ing party below and draw all reasonable
sequences
intercourse,
(2)
of sexual
inferences in
Lopez Langer,
its favor.”
ability
knowing
to make a
choice. This
114 Idaho
761 P.2d
definition is consistent with State v. Cos-
*5
(1988); McBride v. Ford
Company,
Motor
ier, supra,
in which we wrote:
753,
(1983).
105 Idaho
rental marry and previously though tutionally recognized she had delivered child, testimony presented Marriage long been favor- procreate. has potential did not understand the society woman in our as one of ably recognized inter- physical consequences of sexual our upon which institutions fundamental course, syphilis, e.g., pregnancy, gonorrhea Accordingly, laws society is founded. While, herpes. as a result of these favorability creat- certain toward reflect a that di- proceedings, she now understands maintaining harmonious stable and possible consequence is a of extra- vorce about marriages. The same cannot said relations, the record does marital sexual which are sexual relations non-marital knew at the demonstrate that she society light, in a favorable considered having sexual rela- time conse- part of the difficult tions with her. follow, unplanned quences may e.g., divorce, families, parent pregnancy, single support argument, Soura of his re- The laws venereal disease and AIDS. that she sometimes resisted his claimed against non-mari- flect attitude this societal fact that sexual advances. protect tal intercourse and aim to sexual body she invasion of her could resisted an vulnerable, those due to unsoundness to dem- most jury have been understood incurring from woman, humans, immaturity, of mind or like onstrate all conse- resulting has Her some difficult volitional abilities. resistance and Thus, it man conclusively quences. does not estab- while for a non-resistance lish 15- appreciated engage that she understood and relations with his *6 wife, physical, protects 15-year- the emotional and conse- a year-old moral the law quences the of sexual intercourse with de- a old from sexual relations with female fendant. same man is not her husband. The who logic in this applies to the woman involved argument reject also Soura’s We to purpose case. The of 18-6101 is I.C. § consenting capable legally victim was of to disabilities, protect women with mental intercourse with him inference in such as the woman involved this capable she been had deemed of many potential from result- the difficulties consenting marriage, to legally sexual rela- ing from non-marital sexual relations. marriage, tions within and termination of parental rights daughter. to infant her Concerning capability to the woman’s argument is based on This the assumed child, parental rights to her one terminate logical conclusion that when one is deter- purpose the again must focus on the of capable legally consenting to be of mined designed to law. While I.C. 18-6101 § they pre- activity, conclusively to are one women, un- protect particularly those of capable legally consenting be sumed to of pa- immaturity, or the of sound mind law to other activities. A determination all of protect not rental strives to termination capability depends in for also, only parent’s and the interests but large part activity on the involved and the so, Here, it is perhaps more child’s. governing purposes of the laws that activi- apparent precisely the that it was woman’s bright age fix a ty. laws line of Some capabilities lack of mental and her qualification. While adolescents are adequate for responsibly provide to care age capable responsible and at deemed great daughter her had deal to do that drive, capable are to females not deemed of of the to with the decision court terminate consenting they to sexual intercourse until Thus, parental rights. it is little her of are 18. I.C. 18-6101. § import apparently was deemed that she in a
Concerning capable legally consenting different capability the woman's proceeding paren- marriage sexual relations the termination her and child, be spouse, understandably yet tal to her found with her law leeway jury capable even in case not to be granted persons has so that this consenting legally placed non-marital sexual in- if probation again. risk” tercourse with the defendant. history seeking has an unfortunate out vulnerable, including those who are most striking support The most evidence in girls young intelligence with women the trial court’s there determination that disabilities. support substantial evidence to jury’s finding that woman could not given Soura maintains that should be legally consent to sexual with intercourse probation and corrective treatment for his appearance Soura was the of the victim personality disorder. Dr. Michael P. Em- herself. While this Court is unable to view ery, report, in advised character the dis- appearance the demeanor and victim person trict court is a that Soura with trial, as a witness at the we have as a do social does limited skills who not know reference the trial court’s comments. The being accepted when he is when he trial her court found answers be slow being rejected. Emery opined Dr. short; expressions her facial consisted Soura’s disorder treatable and that “sagging jaw, open mouth ... she treatment could be entered with “[s]uch appeared space off into stare at times.” optimism. cautious Incarceration without We find in finding no error the trial court’s probably treatment would exacerbate the competent there was substantial evi- personality pro- disorder.” support jury’s dence to verdict of gram proposed placed in which Soura to be guilty. openings sentencing time of had no at the and even trial court’s recommendation
IV would not insure that Soura would be Finally consider placed we whether in program. such a As the district severe, imposed unduly sentence con up: court summed it sidering the nature of the offense and the proposed probation program Mr. character of defendant. point pie sky. pro- is at in years rape sentenced to to fifteen ten gram Emery hopes put which Dr. years, concurrently, and five be served operation yet operation. ... is not as nature, for the infamous crime it will There’s assertion *7 each well within the maximum sentences operation. There’s no assurance whatso- imprisonment. for each life For crime of accepted that Mr. would be ever below, the reasons set forth we find that Supervision the Intensive Probation exercising the did not district court err in Department Correction. the On sentencing. its discretion in likely contrary, the it’s ... that he may fairly accepted
While this sentence seem se- because it’s neces- wouldn’t seemingly sary accepted program vere for a non-violent crime of to be in that nature, probationer recognize problem this that the we are convinced criminality district court its discretion. Soura he has and the abused his acts background being placed has lengthy proba- criminal which led to him disturbing for includes convictions tion. influence,
peace, driving under the while The district court concluded: driving. and two for inattentive convictions light prior of the crimi- defendant’s [I]n charged burglary, He has also been with becoming sexually nal record —unlaw- escape, attempted burglary, conspiracy to fully people— involved with vulnerable officer, rape, obstructing statutory overriding primary and consideration dis- charges two of lewd conduct. More imposed sentence I ... still is the in the turbing is the that the crimes of which fact public and protection of the deterrent to in this occurred was convicted case public particular and this defendant. probation while he was on for a conviction girl. not err in involving year with an 11 old The district court did its as- oral sex situation, and we affirm probation officer testified sessment judgment of the court. probation district defendant would be “extreme determining highly pertinent to af- is and sentence evidence Judgment of conviction was able to consent victim whether the firmed. that the victim issue. The fact the acts at JOHNSON, nothing, BOYLE be- marriage means BISTLINE consented McDEVITT, JJ., indepen- provision concur. for cause there is such consent whether dent determination BISTLINE, Justice, specially exists, underage. is unless the bride-to-be concurring. I.C. 32-202. See § major- I concur in the result of While opinion, join- I ity do not feel comfortable quickly opinion in an that skims fully important points, enu-
over number of below.
merated
First, majority opinion does rec-
ognize
a criminal
and that
that this is
sepa-
a distinct and
all criminal cases have
ly consent. See Idaho at 796 P.2d better, I I
at If did know would long gone thought day
have person’s intelligence judged
when a person’s appearance.
Fourth, analysis victim’s con- parental
sent to both the termination
rights, and her consent to be married given it is appeal, yet to this
central opinion which it
attention deserves. the vic-
points out that a court terminated parental precisely
tim’s incompetent mother. This
victim was