State v. Moore , 120 Idaho 743 ( 1991 )

BOYLE, Justice.

In this criminal case we are called upon to determine whether it was an abuse of the district court’s discretion to deny defendant’s motion in limine regarding evidence of prior uncharged sexual misconduct.

I.

The appellant, Lawrence E. Moore, was charged with lewd conduct with a minor and sexual abuse of a child allegedly involving sexual conduct with his granddaughter during the period between February, 1984, and May, 1985, when the child was six or seven years of age.

Moore initially pled innocent to both charges, and filed a motion in limine to prevent the State from introducing evidence of alleged prior sexual misconduct with his daughter and stepdaughter. The State sought to introduce evidence that Moore had allegedly engaged in uncharged sexual misconduct with his stepdaughter during the period from 1977 to 1981, when she was between five and nine years of age. The State also proffered evidence that Moore had allegedly engaged in similar misconduct with his daughter during the period from 1969 to 1973, when she was between the ages of nine and thirteen. The district court denied Moore’s motion in limine on the basis that the evidence showed a common scheme or plan, was probative of Moore’s motives or lustful disposition toward children, and was indicative of specific intent. Upon the court’s denial of his motion, Moore entered a conditional plea of guilty pursuant to I.C.R. 11(a)(2)¹. The charge of sexual abuse of a child was subsequently dismissed and Moore was sentenced to a term of not less than three years and not more than fifteen years on the lewd conduct charge. Moore now appeals the district court’s ruling that the evidence of this alleged uncharged sexual misconduct is admissible.

II.

On Moore’s motion in limine, the trial court ruled that the testimony concerning prior sexual misconduct was admissible under I.R.E. 404(b)² because it showed: 1) a common criminal plan involving appellant and young female children in his household; 2) was probative of appellant’s motives or lustful disposition toward young children for satisfaction of his sexual desires; and 3) was indicative of specific intent, and negates a contention that the acts might have been innocent or mistakenly construed.

Moore asserts on appeal that the testimony regarding the prior uncharged sexual misconduct with his daughter and stepdaughter did not fall within any of the exceptions listed in I.R.E. 404(b); and that the probative value, if any, was substantially outweighed by its prejudicial impact.

Generally, evidence of other criminal acts or offenses is inadmissible to prove the character of a person in order to show that he committed the crime for which he is on trial. I.R.E. 404(b); State v. Martin, 118 Idaho 334, 796 P.2d 1007 (1990); State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979); State v. Wrenn, 99 Idaho 506, 584 P.2d 1231 (1978). However, such acts may be “admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” I.R.E. 404(b); see also State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1984); State v. Wrenn, 99 Idaho 506, 584 P.2d 1231 (1978); State v. Hatton, 95 Idaho 856, 522 P.2d 64 (1974); State v. Shepherd, 94 Idaho 227, 486 P.2d 82 (1971); State v. Kombol, 81 Idaho 530, 347 P.2d 117 (1959).

A two-tiered analysis is used to determine the admissibility of evidence concerning uncharged misconduct. First, the evidence must be relevant to a material and disputed issue concerning the crime charged. Second, the court must determine whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant. I.R.E. 403; State v. Sharp, 101 Idaho 498, 616 P.2d 1034 (1980); State v. Winkler, 112 Idaho 917, 736 P.2d 1371 (Ct.App.1987); State v. Roach, 109 Idaho 973, 712 P.2d 674 (Ct.App.1985). This balancing process is within the discretion of the trial judge. State v. Abel, 104 Idaho 865, 664 P.2d 772 (1983).

In the instant case, the trial court denied Moore’s motion in limine on the basis that the proposed testimony demonstrated a common criminal plan or scheme on Moore’s part which was probative of his motives or lustful disposition, and was indicative of the specific intent required for a conviction. After a careful review of the record and the authorities, we hold that there was no abuse of discretion by the trial court in ruling that the proffered testimony demonstrated a common scheme or plan. The testimony demonstrates Moore’s general plan to exploit and sexually abuse an identifiable group of young female victims. The testimony by Moore’s daughter, stepdaughter and that of his granddaughter, the victim, reveals a continuing series of alleged similar sexual encounters directed at the young female children living within his household. See generally State v. Maylett, 108 Idaho 671, 701 P.2d 291 (Ct.App.1985); State v. Boothe, 103 Idaho 187, 646 P.2d 429 (Ct.App.1982).

With regard to relevancy, the proffered testimony is relevant to the issue of credibility and corroboration of the victim’s testimony. Although corroboration is no longer mandatorily required in all sex crime cases,³ corroborating evidence may still be relevant, particularly in sex crime cases involving minor victims. State v. Schwartzmiller, 107 Idaho 89, 685 P.2d 830 (1984); see also Soper v. State, 731 P.2d 587 (Alaska App.1987); People v. Covert, 249 Cal.App.2d 81, 57 Cal.Rptr. 220 (Ct.App.1967). Corroborative evidence in sex crime cases involving youthful victims is often times necessary to establishing the credibility of a young child. Too often the determination of the case rests strictly upon establishing that the victim’s testimony is more credible than that of the alleged perpetrator. As was discussed in a UCLA law review article,

[A]dmission of corroborative evidence serves the dual purpose of reducing the probability that the prosecuting witness is lying, while at the same time increasing the probability that the defendant committed the crime.

Other Sex Offenses, 25 UCLA L.Rev. 261, 286 (1977).

Past decisions by this Court spanning more than eighty years have held that evidence of prior sexual misconduct is admissible where relevant to the parties’ credibility. In State v. Hammock, 18 Idaho 424, 110 P. 169 (1910), it was held:

Any evidence of other crimes which developed was so intimately and inseparably connected with the circumstances of this specific offense as to render it admissible as a part of the common criminal design, all of which was necessarily admissible in order to get a clear understanding of the situation of the parties and the probable truth or falsity of this charge.

18 Idaho at 429, 110 P. at 170. Where relevant to the credibility of the parties, evidence of a common criminal design is admissible. State v. Hammock, id. In addition, in State v. Schwartzmiller, 107 Idaho 89, 685 P.2d 830 (1984), this Court held:

Evidence of similar acts of sexual misconduct between a defendant and the victim or between the defendant and another witness is admissible for corroboration of the victim’s testimony in sex crime cases.

107 Idaho at 93, 685 P.2d at 834.

In the instant case, the proposed testimony regarding acts of abuse previously inflicted by Moore upon other female children in the victim’s household corroborates her testimony. Evidence of all the incidents of abuse, taken together, may provide an evidentiary plan or pattern that tends to make the alleged incidents more plausible and probable. Accordingly, we hold that the district court did not err in denying Moore’s motion in limine.

Moore asserts that even if the uncharged misconduct evidence constitutes evidence of a common scheme or plan and admissible under I.R.E. 404(b), that the incidents in question are too remote in time to be relevant. We disagree.

The issue of remoteness generally goes to the weight of the evidence, not its admissibility. State v. Martin, 118 Idaho 334, 796 P.2d 1007 (1990). In State v. Boothe, 103 Idaho 187, 646 P.2d 429 (Ct.App.1982), evidence of sexual abuse of the victim’s sisters over a five-year period which ended approximately one year prior to the incident for which the defendant was prosecuted, was held to be not too remote in time to be admissible. In Boothe, the Court of Appeals held that evidence of the prior acts was admissible because they were part of his plan to use his granddaughters to gratify his sexual desires. In so holding, the court cited with approval the cases of State v. Maestas, 224 N.W.2d 248 (Iowa 1974), and Staggers v. State, 120 Ga.App. 875, 172 S.E.2d 462 (1969).

In Maestas, the defendant father was charged with lewd and lascivious conduct with a minor. Evidence that the victim's older sisters suffered similar abuse by the defendant was held admissible even though those incidents occurred six and ten years prior to the incident giving rise to the prosecution. In Maestas, the testimony was said to be not too remote because of the intrafamilial nature and similarity of place of the defendant’s misconduct. The occurrences of abuse of the victim’s sisters was held to be strongly probative of defendant’s common scheme to sexually exploit his daughters each time the occasion arose as they attained pubescence.

Likewise, in Staggers v. State, 120 Ga. App. 875, 172 S.E.2d 462 (1969), testimony that the defendant had abused two of the victim’s sisters seven and fourteen years previous to trial was held admissible. The court in Staggers held,

[W]here there is a five year age difference between two daughters, the next opportunity to commit a similar offense will be five years away. We cannot say that there was no logical connection between the defendant’s molesting of his two daughters at exactly the same ages and over the same general period in their lives.

Id. at 172 S.E.2d 464.

In State v. Martin, 118 Idaho 334, 796 P.2d 1007 (1990), sex offenses occurring ten and twelve years before the charged sex offense were held admissible. In Martin, the defendant had been incarcerated for his first sexual assault in 1977, and was released on probation in June of 1979. Within one month he committed the second sexual assault for which he was convicted and committed to prison until some time in July of 1987. Within two months after his release from that imprisonment he committed another similar sexual assault. In that situation, we held that the attenuation from remoteness is less significant where the defendant has spent the intervening time in prison.

In the instant case the incidents of sexual abuse occurred at approximately the same age for each girl in the household. The defendant’s daughter suffered the abuse by Moore beginning in 1969, when she was nine years old, and it continued into 1973. The stepdaughter was eight years old when the abuse began in 1979 and continued until some time in 1981. The alleged abuse of the defendant’s granddaughter began when she was seven years of age, and is alleged to have occurred between February, 1984 and May, 1985.

The testimony demonstrates an alleged continuous chain of similar events, each occurring during the period of time Moore had an opportunity to commit similar offenses. This situation is similar to that in Martin in that the incidents of abuse occurred only at periods when Moore allegedly had the opportunity to commit the offenses. The fact that the' daughter’s abuse ended approximately eleven years prior to the alleged instant offense, and the stepdaughter’s abuse ended approximately three years prior to the instant offense, does not necessarily make the evidence of those acts irrelevant or unfairly prejudicial. The attenuation from remoteness is less significant because during the intervening years Moore had limited opportunities to enact the alleged plan of sexual abuse of young female girls in his household. The opportunity to enact his plan or scheme of sexual abuse allegedly occurred only when there was a minor female present in his home and when she reached an appropriate age for Moore’s designs. Under the unique factual circumstances of this case we hold that evidence of the prior uncharged offenses of sexual conduct occurring approximately eleven years and three years prior to the charged offense is not too remote to be admissible.

Accordingly, we hold that the probative value of the proposed testimony was sufficient to outweigh its prejudicial impact on the defendant and that the trial court did not abuse its discretion in denying Moore’s motion in limine on the basis that the offenses demonstrated a common scheme or plan.

We find no error or abuse of discretion by the trial court in denying the motion in limine on the basis that the evidence of prior sexual misconduct demonstrates a common scheme or plan. The district court’s order denying defendant’s motion in limine is affirmed

BAKES, C.J., and McDEVITT, J. concur.

1 . I.C.R. 11(a)(2) provides:

Rule 11. Pleas. — (a) Alternatives.

(2) Conditional Pleas. With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving in writing the right, on appeal from the judgment, to review any specified adverse ruling. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.

2 . I.R.E. 404 provides as follows:

Rule 404. Character evidence not admissible to prove conduct; exceptions; other crimes.—

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

3 . In State v. Byers, 102 Idaho 159, 627 P.2d 788 (1981), this Court eliminated the mandatory requirement of corroboration in sex crime cases in Idaho.