State v. Tolman

dirеcted merits. The district court is also attorney in accord- award costs and fees against Depart-

ance with I.C. 12-117 § expenses

ment for incurred in that court to

oppose Department’s jurisdictional ar-

gument. remanded. and at-

Reversed and Costs

torney appeal. fees awarded Lockhart on

BAKES, C.J., BISTLINE, McDEVITT, JJ.,

JOHNSON and concur. Idaho, Plaintiff-Respondent,

STATE of TOLMAN,

Donald Marvin

Defendant-Appellant.

Nos. 18545.

Supreme Idaho, Court of Term, February

Boise 1991.

March EchoHawk, Gen.,

Larry Atty. J. Michael Kane, Boise, argued, plaintiff-respon- J. dent.

BAKES, Chief Justice. appellant, Defendant Donald Tol- Marvin (Tolman), appeals man from convictions of two counts of lewd and lascivious conduct and one count of sexual abuse. Tolman appeals also from the district court’s denial of his motion to reduce his sentence. two counts of involving boys lewd conduct two different under sixteen. Tolman was also separate with the crime of sexual abuse of boy a third under sixteen. moved to sever the sexual abuse count from the The district two lewd conduct counts. motion, concluding court denied the prejudice Tolman had failed to show unfair and that of the sexual abuse count properly could admitted the trial of following the lewd conduct counts. procedural events which oc- factual or form the for the issues curred at trial basis appeal. Tolman raises on this trial, the court advised the Prior to charged with jury that the defendant was minors. lewd conduct and sexual abuse of prosecutor asked voir dire anyone potential jurors knew a child. Two had molested as who been and, acknowledged they did cause, they were not removed while per- defendant’s removed were Offices, challenges. juror, A third Mr. Canyon County emptory Bishop Law Van Stone, Defender, Orr, day of advised argued, Ann on the second Debra Public that his wife had been abused.1 defendant-appellant. the court Nampa, for 1. After Mr. Stonе revealed to the defense young, wife had been STONE: COUNSEL: —as STONE: COUNSEL: Was tening to the when incident with decision. you In all affect But when I counsel and the court: What I said sexually molested when she was asked sincerity, my judgment testimony yesterday? my following you that there— me the wife, thought were I don’t conversation with I didn’t think of question— sitting during the court that his about think that it making letter, it— lis- STONE: COURT: Do STONE: No. STONE: COURT: I have the State about case? make Stone, with the thought impartial to both the ^[******] you you your will this Yes. No. No. When I about have undertaken in this matter? you unable to wife’s it; feel information that couple didn’t past perform your you have history defendant and to as a got questions. can still anything home, juror you have be fair in this duties to do way just Mr. questioned After the court and counsel Mr. tered for reasons other than Stone, the court decided not tо remove him the victim. because it found no evidence that Stone questioned ruling, In still another cause, would have been removed for prior uncharged court admitted evidence of he perform was unable to his duties as a sexual acts between the defendant and

juror, or that his non-disclosure tainted the theory each of the three victims on the that process. objected voir dire The defense to acts were relevant to show a he, continuing, claiming Mr. Stone’s that plan. During common scheme or the de- jurors, like the other two would have been fense cross-examination of one of the vic- peremptorily challenged had he been forth- tims, he testified that one of the coming information at voir dire. incidents, incident, the Swan Falls occurred error, In another assertion of Tolman after the incident in the informa- trial, argues jurors one that at of the asked tion. Tolman moved for a mistrial. The they question the court if could the wit- court denied the motion and instructed the jurors nesses. The court advised the jury disregard testimony regarding to questions could ask by witnesses subsequent Swan Falls incident. submitting questions written to the court. objected The defense procedure to the out jury ultimately guilty found Tolman presence jury, of the of the but the court on all three counts. The court sentenced objection overruled the on the basis that period years Tolman to a fixed of ten fol- “better people communication between who by lowed an indeterminate term not to ex- receiving by are information is enhanced a I; imprisonment ceed life on Count to a two-way Only juror communication.” one period years, by fixed of fifteen followed trial, question submitted a to which the period an indeterminate of confinement not objected. state The court ruled that the II; to exceed life on Count and to a fixed question answered, ‍‌​‌‌​​​‌​‌‌​‌‌​​‌‌‌​​​‌​‌​‌‌​​​‌‌​‌​​‌​​‌‌​​​‌‌‌‍could not be but did not period years, of ten followed indeter- jury inform the whether it was the state or period minate of confinement not to exceed objected ques- defense who had to the III, years five on Count three sentences tion. Tolman claims jury could concurrently. to run Tolman filed a I.C.R. therefore have inferred that he was the one seeking 35 motion a reduction his sen- prevented who hearing them from the evi- tence; the court reviewed the recommenda- dence. Department tions of the Corrections separate case, In a Tolman had been appeals denied the motion. Tolman committing prior a sexual act convictions and the denial of his motion to with the same as victim that listed in Count reduce his sentence. I of the information this case. A few appeal, argues trial court On Tolman days prior to commencement of this (1) by: refusing erred declare a mistrial to acquitted Tolman charge. of that jurors when one failed to reveal that prohibited court refer- molested; sexually his wife had once been acquittal, ence to the defendant’s to which (2) prior uncharged admitting objected, claiming the defense that evi- acts; (3) allowing ques- to acquittal dence of the would be relevant witnеsses; (4) refusing to impeachment both to tion the allow disagreed, acquittal Tolman’s in a witness. court hold- evidence of ing acquittal may case; (5) failing have been en- to sever count III from have, you happened COURT: Do because of So little about what that inci- COURT: dent, any opinion fixed or bias your either for or wife? against the defendant? STONE: Yeah. mean,

STONE: No. I know so little about that there was an inci- COURT: Just fact it. dent, you do think that that would make a you COURT: And mean so little about you way you difference against the case that is involved the defen- approach this case? dant? STONE: No. STONE: No. So little about— II; and, (6) failing counts I and objectively reduce item of information which sentence. Tolman’s should have from a juror obtained examination____ voir dire Wehold that issue, regard With to the first to obtain a new trial in such a situa- by failing that the trial erred court tion, party a must demonstrate juror declare mistrial when Stone first juror that a to answer honestly a failed to reveal dire voir failed dire, material on voir attorney prosecuting that his wife had been then show that a re- correct sexually molested a child. further sponse provided would have ba- valid forthcoming claims Stone been sis challenge cause. information, with that he would have been challenged, peremptorily just as two other 555-556, 464 U.S. at 104 S.Ct. at 849-850 similar revelations were. Tol- (emphasis added).2 circumstances, argues man that under the sets McDonough case forth the he was denied the full freedom to exercise appropriate applied standard to be in this peremptory challenges. disagree. his We Assuming situation. that Stone to failed A motiоn for is to mistrial directed honestly question, answer a material our court, the sound discretion of the trial and inquiry then becomes whether correct a ruling its not will be disturbed absent response by provided Stone “would have a showing an abuse of discretion. State v. challenge valid for a basis cause.” Un Talmage, 104 Idaho 19-2019, der I.C. Stone would have been § (1983). McDonough In Equipment Power subject only to removal for cause if he had Greenwood, v. U.S. S.Ct. displayed “the of a existence state of mind (1984), Supreme 78 L.Ed.2d 663 Court case, to or to ... in reference either of a claim to that addressed similar which which, the parties, in the exercise of a today. urges In a McDonough, trier, part of sound discretion on the juror affirmatively respond to a failed to leads the inference that he will not аct to voir as to he dire whether impartiality, with entire and family or of his members or relatives known in this code as actual bias.” injury resulting an in ever sustained The record shows that Stone thor- disability. Only some a after three week oughly questioned by the court and did trial had ended defense counsel learn concerning any possible effect that juror’s son so counsel injured. had been his have on his The Court held: wife’s molestation would repeated- Stone consideration of the case. To the result of a 3-week trial invalidate ly fair and did not stated that would be mistaken, juror’s though of a because think would affect his wife’s molestation honest, to response question, a is to in- way. his in The trial court judgment something perfection sist on closer to prejudiced concluded that Stone was system judicial expected than our can be qualified juror. to serve a and remained give. represents important to A trial court’s That trial decision within private and re- investment of social decision not discretion and court’s sources, important it ill and serves not an declare a mistrial on that basis was finality wipe clean end of slate Talmage, 104 discretion. v. peremptory chal- abuse of simply to recreate the (1983).3 lenge counsel lacked an process because defense, juror's products liability syndrome that a fail- McDonough 2. involved a civil woman’s action, physical her and mental ure to disclose own the standards articulated McDon- hands of her husband warranted ough applied abuse at the in the criminal context. have been Burton, guilty Seе, O'Neill, the court verdict. reversal applied McDonough e.g., States 767 F.2d 780 United Perkins, test and concluded (11th Cir.1985); United States respond on dire de- juror’s “failure to voir (11th Cir.1984). F.2d 1519 ..., for is clear a Mrs. Burton fair nied juror answer a material did fail to We have been cited to a recent Burton Cir.1991), response (10th Johnson, question, correct a F.2d 1150 challenge held, involving a for cause.” provided a basis for the battered have in a murder case (a) Next, Tolman contends the trial Character Evi- generally. person’s dence of character or a trait of permitting court erred character not admissible for the uncharged go jury. crimes to Tol- purpose of proving that he acted con- testimony relating man that the formity particular therewith occa- incidents fall does not within ____ sion, 404(b) exсeptions listed I.R.E. (b) crimes, wrongs, Other or Evi- acts. impact prejudicial that the of such evidence crimes, wrongs, dence of other acts substantially outweighed probative its val- prove not admissible to the character of ue. person in order to show that he acted evidence, At the court admitted in conformity It may, therewith. how- objections, over defendant’s un- ever, purposes, be admissible for other charged sex acts between the defendant motive, proof opportunity, such as in- regard of the three each victims. With tent, preparation, plan, knowledge, iden- J.H., Count III tity, or absence of mistake or accident. abuse, allegedly occurred while (a) [3-5] thus Subsection sets forth the J.H. and Tolman were alone in Tolman’s generally recognized rule that evidence of testimony Prior house. was admitted relat- previous a defendant’s crimes or miscon- old, ing to similar misconduct in an burned propensity pur- duct is for not admissible house, present down with none save Tol- 883, poses. Needs, 99 State v. Idaho 591 J.H., yet man and another incident that However, under subsec- occurred while J.H. and his brother T.H. (b), wrongs tion evidence of other crimes or camping were with Tolman. may prove be admitted when relevant to intent, things identity, motive, such as victim, Regarding D.P., the II re- Count plan, Wrenn, preparation, 99 etc. State v. an lated to incident that occurred while 506, Idaho The ex- D.P. and T.H. were at Tolman’s house. (b) ceptions repre- in listed subsection are prior trial court admitted types the sentative of uses for D.H., misconduct that occurred while Tol- admitted, other crimes be man, party camping. and a third were In exceptions are exhaustive. I, Count Tolman T.H. for 498, Sharp, State 101 Idaho P.2d v. 616 during lewd conduct that occurred Masters, 1034 United v. 622 States episode same as that T.H. Count II. also (4th Cir.1980); F.2d 83 United v. States testimony relating offered to inci- (5th Cir.1978).4 Beechum, 582 F.2d 898 dents, namely, camping trip with J.H. Nevertheless, if such within evidence falls and Tolman. The trial court allowed the exception, may still be barred testimony of this conduct to probative value of such evidence is sub- theory come in that such evidence stantially outweighed by prejudicial ‍‌​‌‌​​​‌​‌‌​‌‌​​‌‌‌​​​‌​‌​‌‌​​​‌‌​‌​​‌​​‌‌​​​‌‌‌‍its im- plan leading showed common or scheme pact. I.R.E. 403. offense. recently precise dealt issue We face, whether, Rule i.e., Idaho of Evidence 404 states in we in a case re- now pertinent part: garding сonduct and sexual abuse lewd peremptorily challenged 948 F.2d at 1159. The court its conclu- the defense. Tol- based juror challenged showing juror sion that the would have been man has no Stone made prospective cause, challenged for cause on the fact that two other been as re- would have for

jurors challenged Thus, been so and removed. quired by McDonough. this case is differ- Burton, sim- ent from in which case, cause, challenged holding In this we do not find the ilar were allow- Burton answers First, persuasive. out, points ing juror as Burton dissent to failed the court infer that who "opportunity respond honestly court has best also voir dire would po- challenged. and evaluate the of the observe demeanor” have been so case, Further, juror. tential this the other 404(b) panеl acknowledged coun- two members of the who 4. I.R.E. is identical the federal interpreting acquainted terpart, rule were with victims of sexual and federal cases this challenged were not but were are deemed instructive. abuse cause therefore 904 parties minor, testimony the situation and the sexual miscon- 404(b), in probable falsity duct under I.R.E. truth or was admissible Moore, charge.

State v. 819 P.2d (1991). 1143 In we held that such 18 Idaho at 110 P. at Where testimony indeed admissible to show a credibility parties, relevant to the plan explained our common scheme design a common criminal is holding follows: Hammock, admissible. id. longer is no Although corroboration man- Schwartzmiller, v. addition, in 107 cases, required in all sex crime datorily (1984), P.2d Idaho 830 this Court corroborating still [f.n. 3] held: relevant, particularly in sex crime Evidence of similar acts of sexual mis- involving minоr victims. cases conduct between a defendant and the Schwartzmiller, victim defendant and or between the State, Soper see also cor- another witness admissible for (Alaska App.1987); People testimony roboration of victim’s Covert, Cal.App.2d Cal.Rptr. sex crime cases. (Ct.App.1967). Corroborative evi- P.2d at 834. involving youth- in sex cases dence crime proposed In the instant testimo- necessary ful times victims often ny regarding previously acts of abuse establishing young upon inflicted Moore other female child. Too often the determination of household corrob- children the victim’s strictly upon establishing case rests Evidence all orates her credible victim’s more abuse, together, taken the incidents of alleged perpetrator. As than that of provide evidentiary plan a UCLA review was discussed in law alleged the pattern that tends to make article, probable. plausible and incidents more of corroborative evidence [A]dmission that the district Accordingly, we hold reducing purpose the serves dual of in mo- denying not err Moore’s court did prosecuting that probability in tion limine. at same time lying, witness is while Byers, In State v. [f.n. 3] the de- increasing probability that 159, (1981), 627 788 this Court elimi- the crime. fendant committed mandatory cor- requirement of nated the Offenses, 25 L.Rev. Other Sex UCLA in crime cases in Idaho. roboration sex 286 745-46, P.2d at 1145-46 Idaho 819 120 spanning Court Past decisions this added). (emphasis that eighty years have held more than explained Cognizant principles we of prior of sexual misconduct evidence number of courts in a substantial parties’ to the where relevant admissible prior adopted rule evidence of Hammock, 18 have v. In credibility. it is rele- admissible where misconduct (1910), held: 110 P. 169 it was credibility parties.5 As vant to the which other crimes Any one court stated: and in- developed intimately was so pri- always occurs circum- almost with the offense separably connected only direct witnesses are specific vate. The stances this offense the defendant. prosecuting witness and part as a render it admissible sup- Although all circumstantial design, criminal common corroboration, conviction plies necessarily admissible occasional which credibility upon understanding usually hinges get a order to clear State, (Ind.1989); (Ala. State, Andrews v. 229 534 N.E.2d So.2d 1226 See v. 538 Bowden Baker, (Ind.App.1988); (Alaska State, App. 1988); 529 N.E.2d 360 Soper P.2d 587 v. 731 Burton, People (La.App.1988); v. Hunt, ‍‌​‌‌​​​‌​‌‌​‌‌​​‌‌‌​​​‌​‌​‌‌​​​‌‌​‌​​‌​​‌‌​​​‌‌‌‍So.2d 1987); Cal.App.3d 861 People v. State, Mich.App. 184 N.W.2d 336 Snowden v. Cal.Rptr. 675 (Mo.1971). State, Simerly, S.W.2d 846 Stwalley (Fla.App.1989); So.2d 1383 prosecuting today In this kind We do not suggest witness. of case and all prior evidence of beyond other, sexual misconduct is ad- plea the defendant’s missible in merely by plac- sex cases crime challenges innocence ing it under the rubric of corroborative alleged The challenge victim. in- plan. a common scheme or very heres in the nature of the contest Furthermore, such subject still usually long an answer demands be- imposed to the limitations I.R.E. 403 prosecution’s fore the turn for rebuttal. proscribes pre- both “needless defense, A even minimal when the defen- evidence,” sentation of cumulative and evi- testify, dant elects not to demands that “probativе dence whose value is substan- alleged victim accused of false- tially outweighed danger unfair hood, spite or delusion. prejudice.” The trial court found that nei- People Covert, 81, 88, Cal.App.2d 57 ther of these limitations was violated in the (1967) (footnotes Cal.Rptr. 224-225 case, holding instant and that is consistent omitted). with our cases. Additionally, argues Tolman Applying principles these to the admitting trial court erred present persuaded we are of J.H. as to the incident that occurred at admitting court did not err in Falls, Swan apparently occurred sub subject correctly evidence and character sequent to the incidents ized the demonstrating evidence as a com information. Tolman it was plan mon or scheme. The evidence shows error to admit such evidence because the typically targeted young male requires rule that the conduct occur victims. The evidence further shows that incidents the information. shrewdly won over his victims’ con disagree. We fidence, trust, friendship by inveigling We have previous dealt with issue on them to accompany him on various errands rejected occasions and the notion that evi (taking and adventures them camping and subsequent dence of per misconduct is se inviting home, etc.). them to Having Stratford, inadmissible. State v. confidence, thus secured their Tolman then State v. Green subjected to his victims sexual abuse. sweig, 102 Idaho 641 P.2d (Ct.App. Standing alone, the incidents in 1982), Appeals the Court of stated: the possess only information degree that question regarding The threshold admis- believability naturally as would attach to sion оf evidence of other crimes is rele- testimony young boy counterba- vancy. logical No distinction between testimony alleged lanced of the prior subsequent apparent and crimes is perpetrator, and whatever other circum- to justify per appel- rule of the sort se stantial may brought have been to very lant appellant asserts. The rule light. clearly This was the case with re- asserts rejected. has been tested and spect III, to count which matched J.H.’s 65, 72, Stratford, Idaho against word that of the defendant. How- ever, when these are taken in events con- 102 Idaho at P.2d at 344. More junction testimony with the detailed elicited recently, Moore, supra, specifically we incidents, prior as to the jury was bet- “[ejvidence stated that of all the incidents compare methods, ter patterns able to and abuse, provide together, may taken generalities, details and consistencies and evidentiary plan pattern that tends to discrepancies, thereby made a more make plausible more incidents meaningful and accurate assessment of probable.” at 819 P.2d parties’ credibility. added).6 (emphasis at 1146 assuming mony subsequent, regarding Even that the admission of testimo- Swan Falls in- ny regarding the Swan Falls incident was in cident. Error in of evidence admission error, instruction, by proper it was not error. The cured reversible trial and it must be disregard jury presumed obeyed jury court instructed the to the testi- that the the trial court’s argues allegations, however,

Tolman that next the trial must be de- allowing court erred in monstrably to ask false.” ... The exclusiоn of questions of the Tolman claims witnesses. that line of not error. was practice that such is not allowed under ruling As the district court stated in and, further, defense the rules that counsel issue: placed position being in the untenable That issue of is a matter for object questions, thereby forced to to al jury to determine from all of the lowing jury infer that the to defense is credibility. that various factors relate to something trying to conceal from them. jury may And have decided case deciding practice such a Without whether of reasons which had number points Tolman permissible—and no rule absolutely nothing partic- to do with that prohibits practice—we specifically that credibility. They ular witness’s simply jury note that here the asked one have decided that this was truth- witness court did not questiоn which the submit to ful, that some other element which it had already the witness because been testify couldn’t witness to was not assuming Accordingly, prac covered. such present. present Since the court not was improper, no tice submitted position I’m in no second jury to a witness this case. More guess jury on that. over, explicitly the trial court instructed reasoning of the We believe district jury were not to consider the court was correct on this issue. Schwartz- any objections. There is no reasons miller, supra. showing the jury drew inference argues refusal next the trial from the court’s ask Tolman question. failing Thus find no error. III we court erred to sever Count Specifically, from I and II. Counts Tolman also the trial III dealt with the contends that Count in refusing court erred to allow evidence of charges brought by J.H. of sexual abuse acquittal. Apparently, respect to an incident of abuse that recently acquitted charges had been occurred while J.H. was alone with the brought by one of the victims this case nothing to do defendant and which had right argues the re jury other incidents with the that information as it would tend to ceive this issue on need not consider counts. We by the dispel impact the adverse occasioned appeal record reflects that Tolman’s as the admission court’s pur timely made motion to sever uncharged acts. 12(b)(5). Martin, suant to I.C.R. Schwartzmiller, 808 P.2d (1984), 89, 92, we stated: Nevertheless, find in the trial we no error itself, verdict, standing guilty by A not court’s of the motion. denial can be to establish that never taken argues that Finally, Tolman brought ac-

charges based false were reduce his cusations, refusing erred in may not be trial court since convicted one legally A motion to reduce a beyond finds a sentence. jury a crime unless a imposed is addressed to sound sentence guilt the defen- reasonable doubt the v. Arai the trial court. State, 413 discretion of State As in Little dant. stated za, Af 706 P.2d 77 (Ind.App.1980), be- N.E.2d “We facts and considering all the relevant ter false accusations of lieve that evidence of and surrounding this case misconduct is admissible circumstances similar defendant, sen- Tolman’s we believe credibility. this issue victim’s on the other evi- reaching all the its verdict. Given Hedger, 115 Idaho direction. Rolfe, prove the defen- 92 Idaho in this case to State v. dence admitted Urie, easily guilt, jury P.2d 428 have reached could dant’s Therefore, must court considering re- the evidence its verdict without jury not consider the testi- presume that the did subsequent, garding Falls incident. Swan regarding Falls mony Swan incident they hunting. elk J.H. testified that purpose for were tence was well tailored to times: imposed. charac- Tolman molested him two other which it was Tolman was by Department of Corrections’ once in an abandoned house and a second terized being “high offender.” report they camping.7 risk time while were that Tolman’s deviant The record reveals objected to vigorously Defense counsel He practically are inveterate. activities evidence, arguing the introduction of this prior felony for sexual has four convictions the evidence inadmissible under was Accordingly, the sen- abuse of children. 404(b). I.R.E. The court overruled ob- society neсessary protect tence was jection holding that was ad- of chil- from his continued sexual abuse under missible rule because was dren. evidence which tended to establish that Tol- Judgment and sentence affirmed. youths man’s activities relative to the was plan a common or scheme. JJ., McDEVITT, and concur. BOYLE court, credit, give The to its did oral BISTLINE, Justice, dissenting. attempted ‍‌​‌‌​​​‌​‌‌​‌‌​​‌‌‌​​​‌​‌​‌‌​​​‌‌​‌​​‌​​‌‌​​​‌‌‌‍instruction which to limit erroneously holds that majority purpose for the evidence could which be fully crimes was considered: Moore, admissible under may purpose offered for the Evidence be (1991). It not ad- showing the defendant has en- aegis any prior case missible under activity gaged similar conduct or precedent. other than that for he is on trial. believed, evidence, is not to be Such if PART I. you prove that by сonsidered complaint prosecutor filed person bad character Defendant I II contained three counts. Counts disposition or that he has a to commit violating Tolman with I.C. 18- § crimes. (lewd conduct with a minor or child Such evidence be received sixteen). alleged under Count by you only the limit- considered for T.H., year committed fellatio with a twelve purpose determining, it tends ed boy. alleged type old II the same Count show, method, plan, a characteristic act, D.P., boy. year but with a thirteen old or scheme used the commission of III I.C. Count Tolman violated alleged in this case. offense child) (sexual 18-1506 when abuse § purpose you For the limited J.H., year old penis he licked the a ten evidence, you such must may consider boy. do all weigh you it in the same manner boys sup- At all three testified in the case. You are not other evidence port charges. of those That testimonial permitted to consider such evidence, jury, if believed purpose. any other all sufficiently support guilty verdict on added). R., I, (emphasis Yol. charges. three T.H. and D.P. tes- criminal day skipped school one tified that PART II. where he molested went to Tolman’s house molested them. J.H. testified appeal argument Tolman on renews house. Tolman in the at Tolman’s bathroom under the evidence was inadmissible that 404(b). provides That rule that: I.R.E. boys allowed to Additionally, the were crimes, wrongs, or uncharged acts of sexual of other testify Evidence to other prove the char- acts is not admissible that Tolman molestation. T.H. testified person in order to show acter the they cаmping and molested him were when of may, conformity therewith. It hunting. D.P. acted again they deer when were however, pur- him be admissible other molested when testified that Tolman testimony camping the incident. the about 7. The court later struck poses, proof motive, opportu- such as relevancy of of a common intent, nity, preparation, plan, plan knowl- or scheme was also addressed in edge, identity, or Beginning absence of mistake or Moore. 120 Idaho at at accident. majority opinion P.2d at is seen waxing philosophical, having been led in added.) (Emphasis direction a law review article above, As noted district court admit- author student which was written fifteen proof ted the evidence as aof common years ago: plan. The scheme or common scheme or regard relevancy, prof- With plan exception as it applies to child sex testimony fered is relevant to the issue abuse cases was discussed in credibility and corroboration of the Moore, testimony. Although victim’s corrobora- recent decision of this Court longer required mandatorily tion is no disagreed, disagree and continue to as to cases, corroborating sex crime all evi- sufficiency carefully thought out relevant, dence still particularly There, analysis. the defendant was minors, involving in sex crime cases [ci- charged with lewd conduct with a minor tations Corroborative omitted] grand- and sexual abuse child with his involving youthful crime sex cases vic- daughter period of time the necessary tims is often times to estab- six or years child was seven old. Moore lishing young aof child. sought to exclude evidence that he had Too often the determination of the case allegedly engaged in similar misconduct strictly upon establishing rests that the daughter when she was between testimony victim’s is more credible than ages of nine and thirteen. The district alleged perpetrator. that of the As was limine, court denied Moore’s hold- motion in a discussed UCLA law review article: ing evidence showed a common corroborative [A]dmission plan. scheme or purpose reducing serves the dual opinion in a af- The Court three-to-two probability prosecution ruling firmed the district for two court’s lying, the same witness while at time first, majority reasons: affirmed the increasing probability that the de- proposed district court’s conclusion that the fendant thе crime. committed testimony a common crim- “demonstrate[d] Offenses, 25 Other Sex UCLA L.Rev. plan part inal or scheme on Moore’s probative of his or lustful motives spe- disposition, and was indicative proposed In the instant testimo- required intent for a conviction.” cific ny regarding previously acts of abuse Moore, 120 Idaho at 819 P.2d at upon female inflicted Moore other respect, the instant case is similar household children victim’s corrob- in that the here demon- to Moore of all orates her Evidence general plan to molest strates Tolman’s abuse, together, the incidents taken boys neighborhood young when pat- provide evidentiary plan supervision. chanced to come under his that tends to inci- tern make Second, Moore, must according to a court plausible probable. dents more probative whether value determine 745-46, 819 P.2d at danger outweighed by the evidence 1145-46. prejudice. of unfair Thus, child’s testi- extent that PART III. testimony of anoth- mony corroborated the however, Tolman, concerning er child’s further misconduct, relevant under the existence if the evidence shows even However, it is does not end the Moore. plan, it is still inadmissible because allow (“Evidence inquiry because does not Moore See I.R.E. 402 irrelevant. admissible.”) testimony to corroborate his witness own not relevant is not which is

909 nothing by claiming complaining than one but the witness more incident cor- Moore, roborating himself, reject proffered testimony we it. abuse. alleged testimony corroborated the victim’s 593, Kazee, Cal.App.3d 596, People v. 47 person because it came a third who Cal.Rptr. 221, (2nd Dist.1975). 121 223 Or from by claimed to have been abused put way, defen- “the trier of fact is not another The dant under similar circumstances. aided evidence of offenses other where person experienced fact that another sim- is limited to the uncorrob making ilar abuse could have effect of testimony prosecution orated wit testimony victim’s more credi- People 812, 67 Stanley, ness.” v. Cal.2d. ble. 828, Cal.Rptr. 825, 913, 63 433 P.2d v. Simerly, See also State 463 Here, Moore, unlike the court allowed (Mo.1971)(evidence in S.W.2d jury to consider the of un- complaining acts cestuous with sister offenses as corroboration witness admissible to corroborate witness’s testimony same child’s about the Covert, testimony), People v. 249 Cal. However, the offense. fact that a witness (1967)(sаme App.2d Cal.Rptr. as testifies that a defendant sever- committed Simerly). acts of wrongdoing al does not make that testimony any witness’s more credible. improperly Because trial court al- experiences life instruct us other lowed the bad acts to self- may person apt be to tell several untruths testimony prosecu- corroborate one; easily as he tell repeated can testi- witnesses, tion we should reverse the con- mony does not make a mistake or untruth remand new viction and for a trial. Tol- likely Thus, the more to be true. a more man’s defense was that the children were enlightened day Court should rule that telling the truth the credibility the trial court in allowing erred the various complaining was the witnesses central allega- witnesses self-corroborate thеir issue in case. As the determination of An appropriate enlightened tions. decision best left to witness’s clearly required and would consonant fact, trier of cannot conclude that fact, Moore. In article law review the same outcome have been even majority Moore, utilized had it had not been im- children’s only perused article, supports further properly self-corroborated. my conclusion: PART IV. hinges of admissibility determination on the source of the evi- corroborative Touching again on State hav- complaining pre- dence: The witness is ing it now some months later in revisited self-corroboration; cluded from evi- prosecution, regard to this dence of the defendant’s sexual miscon- comparison, said should be Moore duct, victims, as attested other considerably opin- the better-reasoned

properly complaining corroborate the far, Today’s majority goes ion. opinion far witness’s say afield from which this had to Court Comment, Offenses, instance, UCLA very Other Sex For made it Moore. Moore L.Rev. 285-86 The California clear that: Appeals Court of has stated the rule thus- Generally, other criminal ly: prove acts or offenses is inadmissible admissibility person rationale for of evi- the character of a order to [T]he others, dence of sexual misconduct that he the crime for show committed 404(b); in cases where is no as to there issue which he is trial. I.R.E. Martin, identity, accident, so absence forth, Needs, com- simply corroboration of the Wrenn, plaining witness. Where such corrobora- Ida- (1978). However, tion comes from the mouth of another ho witness, we it. When be ‘admissible for other admit it consists such acts 910 motive,

purposes, proof guilty charge of oppor- such as on the that had been laid intent, tunity, plan, preparation, court, knowl- against majority A him. of this edge, identity, or of or absence mistake including myself, Justice Johnson or went 404(b); accident.’ I.R.E. see also State far say prosecution so as to in the Martin8 Paradis, 117, 676 31 106 Idaho P.2d uncharged ‍‌​‌‌​​​‌​‌‌​‌‌​​‌‌‌​​​‌​‌​‌‌​​​‌‌​‌​​‌​​‌‌​​​‌‌‌‍offenses which (1984); Wrenn, 506, State v. had years occurred ten and earlier twelve (1978); Hatton, P.2d 1231 State v. 95 wrongful did not make evidence of 856, Idaho P.2d 64 “unfairly prejudicial conduct of re- because 227, Shepherd, 94 Idaho Topping that, majority moteness.” Kombol, 530, State v. Idaho pure ipse went on to bolster that dixit (1959). 347 P.2d 117 adding year that ten or twelve Moore, Idaho at at 1145. time, expanse of had been defendant opinion Mentioned in the Moore earlier in- nearly period, incarcerated entire the statement that: up, timating had he locked not been sought The to introduce evidence his sex crime career would not have been allegedly engage Moore in had un- interrupted. step- misconduct with sexual his The prosecution, Hammock9 criminal daughter during period from 1977 to Moore, majority utilized in without 1981, when she between was five portrayed, as it does not held years age. prof- nine of The State also here, necessarily applies al- follow allegedly Moore had fered though majority that im- would leave engage similar misconduct refute, did not pression. Beyond the State daughter during period from 1969 to un- in that intrоduce case ages when she between was It conduct Hammock. nine and thirteen. The district court de- against on prepared had no case him based nied Moore’s motion in limine on the ba- charge, plain The hypothesis. such an that the showed a sis common prosecutrix under simple, that the was was plan, probative or scheme was Moore’s consent, age that this fact “[t]he disposition chil- motives lustful toward consent, had girl, age of had under the dren, specific in- and was indicative men, she intercourse with other or even if tent. prostitute, had a common become 1144. Idaho at defense for defendant.” constitute no The trial court denied Moore’s motion 169. Hammock, Idaho at 110 P. at such precluding limine aimed at opinion, Justice Ailshie wrote the Justicе opinion then set out the two- This Court’s concurred, now, eighty-two Sullivan made, analysis must be rele- tiered later, con- years Bistline voices his Justice charged, proba- and the vant to crime currence. weighed against danger tive value me if our brings defendant. All to wonder prejudice unfair of which verge system justice be on the point my At that interest Moore was decisions crumbling because such wane, inability of an simply because on Hammock, mentioned, those other than logical what source to understand from prose- authorizing persists the Court allowing this authorization the State flows find suc- district courts to cution and the conduct, assertedly into put against defendant case cessful a state’s bad, brought perpetra- had never (or overuse) by the use trial, yet allowing to cоurt stand tor misconduct, crimes, uncharged common that the defen- jury to deduce therefrom scheme, criminal plan or common being was criminal then and there dant from Martin, effort to obtain an answer shot down in its prosecutrix had ever as to whether she submitting the de- anyone prior sex with Hammock, 110 P. 169 9. State fendant. charge on which Hammock rape. statutory prosecuted was defense design, acts, evidence of similar or an evi-

dentiary plan pattern.

JOHNSON, J., I, II, concurs PARTS

and III. Idaho, Plaintiff-Respondent,

STATE of DOYLE,

Thomas Patrick

Defendant-Appellant.

No. 18852.

Supreme Idaho, Court of

Boise, January 1992 Term.

April Trimming,

Alan E. County Ada Public Defender, Boise, defendant-appellant. EchoHawk, Larry Gen., Atty. Michael J. Kane, Boise, Deputy Atty. (argued), Gen. plaintiff-respondent. BAKES, Chief Justice. Doyle

Defendant (Doyle) Thomas charged by information with the crime of felony custody child pursuant interference Doyle to I.C. 18-4506. filed a motion to § subject jurisdic- dismiss for lack of matter tion on the basis that he committed no acts within the State of Idaho would con- stitute under a crime Idaho law. The trial court Doyle denied the motion to dismiss. guilty plea charge then entered a

Case Details

Case Name: State v. Tolman

Court Name: Idaho Supreme Court

Date Published: Mar 31, 1992

Citation: 828 P.2d 1304

Docket Number: 18195, 18545

Court Abbreviation: Idaho