State v. Oberg ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 47207
STATE OF IDAHO, )
) Filed: July 13, 2021
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
JACOB GLEN OBERG, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Fremont County. Hon. Darren B. Simpson, District Judge.
Judgment of conviction and unified sentence of life with fifteen years determinate
for rape and a persistent violator enhancement, affirmed. Case remanded to ensure
compliance with I.C.R. 32.
Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford,
Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________
BRAILSFORD, Judge
Jacob Glen Oberg appeals from his judgment of conviction and sentence for rape, Idaho
Code § 18-6101(5). We affirm the judgment of conviction and sentence. We remand the case,
however, for the district court to ensure any changes the court made to the presentence
investigation report (PSI) are reflected in the PSI subject to disclosure under Idaho Criminal
Rule 32(h).
I.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2017, the State charged Oberg with violating I.C. § 18-6101(5) for raping
K.O. “while she was unable to resist due to any intoxicating, narcotic, or anesthetic substance.”
Subsequently, the State amended the charge to include a violation of I.C. § 18-6101(7) for raping
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K.O. when she was “incapable of resisting because she was at the time unconscious or asleep”
and to allege a persistent violator enhancement. Oberg pled not guilty to these charges, and the
case proceeded to trial in October 2018.
At the conclusion of the trial, the jury was unable to reach a decision, and the district
court declared a mistrial. The State elected to retry the case, and a second trial occurred in
March 2019. The evidence at the second trial showed that Oberg; K.O; Oberg’s friend, E.G.;
and E.G.’s son went camping together in June 2017. On the day in question, Oberg and K.O.
smoked three bowls of marijuana throughout the day, and K.O. testified she ingested
approximately six beers later that evening. After she had drunk five beers, K.O. left the campfire
to use the restroom. While K.O. was gone, Oberg opened a sixth beer for her and placed it in the
cup holder of her chair. When K.O. returned, she drank the beer.
K.O. testified that, shortly after drinking the sixth beer, she began feeling “really heavy,”
lightheaded, sleepy, and her fingers felt “tingly.” Oberg then exposed his penis and asked K.O.
if she wanted to look at it. K.O. testified that she was “shocked” and “really scared” and that she
immediately attempted to go inside the camper but was stumbling, could not walk straight, and
felt like she was going to fall. Once K.O. was inside the camper, Oberg had intercourse with her.
K.O. testified that while in the camper she continuously blacked out and “slipped in and
out of consciousness several times.” When she was conscious, she tried to fight off Oberg, but
her resistance was futile because her “arms felt so weak.” She felt as if she had “sandbags on her
chest,” and it was hard for her to breathe, talk, and keep her eyes open. K.O. testified that she
had previously drunk beer and smoked marijuana and knew what it felt like but that she had
never felt like she did that night. After the camping trip, K.O. confronted Oberg in messages she
exchanged with him in a social messaging application, Snapchat (“Snapchat messages”). During
the second trial, the State admitted in evidence some of these Snapchat messages, several of
which were redacted pursuant to the district court’s earlier rulings on Oberg’s hearsay objections
made during the first trial.
The State also presented the testimony of Oberg’s friend, E.G, who was camping with
Oberg and K.O. E.G. testified that he had a prescription for Seroquel, which he used as a sleep
aid, and for Suboxone; he brought these medications with him on the camping trip and kept them
in the camper; the Seroquel dosage was 100 milligrams; and by the end of the trip, one bottle
was empty and the other was low, although he could not recall which prescription was empty.
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E.G. also testified that Oberg never asked for the pills and that E.G. never saw or heard anyone
take his pills. The State, however, presented the testimony of an inmate who had been
incarcerated with Oberg after he allegedly raped K.O. The inmate testified Oberg revealed to
him that Oberg had given K.O. Seroquel “to loosen her up” and then “took advantage of her” but
that Oberg did not intend for K.O. to “get that messed up.”
Additionally, the State presented the testimony of Dr. Dawson, a pharmacologist.
Dr. Dawson testified generally about Seroquel’s use and effects, including that it is “a very
commonly used drug” prescribed to treat psychiatric disorders, drug withdrawals, and post-
traumatic stress. Further, he testified that if Seroquel is taken with alcohol, its sedating effects
are intensified; the resulting side effects would include numbness, inability to move, inability to
speak, and unconsciousness; and using marijuana with Seroquel would further impair
psychomotor and cognitive functions. Finally, Dr. Dawson opined it “would be unlikely” that
someone under the influence of alcohol, marijuana, and Seroquel could “knowingly consent to
sexual intercourse of any kind.”
Ultimately, the jury found Oberg guilty of rape and of being a persistent violator.
Thereafter, the district court held a sentencing hearing during which Oberg informed the court of
two errors in the presentence investigation report (“PSI”). The district court agreed to redline
those errors and then sentenced Oberg to life in prison with fifteen years determinate.
Oberg appeals both the judgment of conviction and the sentence.
II.
STANDARD OF REVIEW
We review the trial court’s decision to admit expert witness testimony for an abuse of
discretion. State v. Ellington, 151 Idaho 53, 64, 253 P.3d 727, 738 (2011). Likewise, we review
a trial court’s decision to admit or exclude evidence for an abuse of discretion. State v.
Zimmerman, 121 Idaho 971, 973-74, 829 P.2d 861, 863-64 (1992). We also review a trial
court’s decision to redline a PSI for an abuse of discretion. State v. Golden, 167 Idaho 509, 511,
473 P.3d 377, 379 (Ct. App. 2020).
When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the trial court: (1) correctly perceived the
issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted
consistently with any legal standards applicable to the specific choices before it; and (4) reached
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its decision by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158
(2018).
III.
ANALYSIS
A. Expert Witness Testimony
On appeal, Oberg challenges the district court’s denial of his motion in limine to preclude
Dr. Dawson from testifying about the combined effects of Seroquel, alcohol, and marijuana on
the ability to consent to sexual conduct. Before the second trial, the State disclosed Dr. Dawson
as an expert witness, and Oberg moved in limine to exclude his testimony. The district court
denied that motion but postponed the trial to allow Oberg an opportunity to locate an opposing
expert. Thereafter, Oberg moved in limine again seeking to exclude Dr. Dawson’s specific
opinion that “it is more likely than not that [K.O.] was incapacitated by the combination of drugs
and alcohol at the time of her assault.”
Addressing this motion, the court ruled:
Dr. [Dawson] shall be allowed to testify about the effect of the drug Seroquel on
the human body, alone and/or in combination with alcohol and marijuana. He
may testify whether [K.O.’s] description of the physical manifestations she
encountered on the night in question are similar to the effects of Seroquel when
taken with alcohol and/or marijuana. He is not allowed to testify whether or not
Seroquel was actually administered to [K.O.] on the night in question. He may
not testify whether [K.O.] was actually incapacitated by the combination of drugs
and alcohol in her body at the time of her alleged assault.
At the second trial, the prosecutor inquired whether in Dr. Dawson’s “professional
opinion, speaking generally, if someone were under the influence of Seroquel--they’ve never
taken it before--alcohol and marijuana, would a person be able to knowingly consent to sexual
intercourse of any kind?” In response, Dr. Dawson testified that “it would be unlikely.” Oberg
did not object to either the form of the question or to Dr. Dawson’s response. As a result,
Oberg’s claim on appeal is necessarily limited to the district court’s pretrial ruling.
On appeal, Oberg argues that the district court “did not apply the correct legal standards”
when allowing Dr. Dawson to testify to this opinion and that the testimony “was based on
speculation and unsubstantiated by facts in evidence.” A witness who is qualified as an expert
by knowledge, skill, experience, training, or education may testify in the form of an opinion or
otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue. Idaho Rule of Evidence 702.
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Whether expert testimony is admissible requires consideration of two factors: whether the
witness is qualified as an expert and whether the expert’s opinion will assist the trier of fact in
understanding the evidence. State v. Caliz-Bautista, 162 Idaho 833, 835-36, 405 P.3d 618, 620-
21 (Ct. App. 2017).
Regarding this latter inquiry, the Idaho Supreme Court has ruled that “expert opinion that
is speculative, conclusory, or unsubstantiated by facts in the record is of no assistance to the jury
in rendering its verdict.” Adams v. State, 158 Idaho 530, 538, 348 P.3d 145, 153 (2015).
Testimony is speculative if the expert theorizes about a matter but the evidence is insufficient to
establish the expert’s knowledge necessary to opine about that matter. Id. An expert witness is
allowed to base an opinion on facts (1) within his personal knowledge; (2) presented to him at
trial; or (3) presented to him outside of court but not perceived by him personally, if those facts
are the type of facts reasonably relied on by experts in the field in drawing conclusions. State v.
Stanfield, 158 Idaho 327, 341, 347 P.3d 175, 189 (2015).
On appeal, both parties rely on the Idaho Supreme Court’s discussion about admissible
expert testimony in State v. Samuel, 165 Idaho 746, 452 P.3d 768 (2019). In Samuel, the State
charged Samuel with murdering his father and brother. Id. at 753-54, 452 P.3d at 775-76. At
trial, Samuel attempted to introduce the expert testimony of a pharmacologist, Dr. Julien, to
opine that Samuel was intoxicated from Celexa, a selective serotonin reuptake inhibitor (SSRI),
at the time of the murders. Id. at 776, 452 P.3d at 798. Although Samuel never had his blood
drawn, a sample of his hair was taken three weeks after the murder and analyzed. Id. Dr. Julien
explained this sample would not show the quantity of drug usage but would show chronic use.
Id. Further, Dr. Julien testified that Samuel’s father was prescribed Celexa; Samuel was also
prescribed drugs but not Celexa; and Samuel’s hair sample did not contain his prescribed drugs
but rather contained Celexa and Benadryl. Id. From these facts, Dr. Julien opined that because
Samuel was not prescribed Celexa, another person “probably” took Samuel’s prescribed drugs
and replaced them with Celexa. Id.
When Samuel’s counsel then inquired about the effects of an SSRI on Samuel’s cognitive
abilities and whether he “would have had the ability to formulate a specific intent to kill,” the
prosecutor objected, and the district court sustained the objection. Id. Outside the jury’s
presence, Dr. Julien admitted that he was not positive “Samuel had [Celexa] in his bloodstream
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at the moment of the incident” and that, without a blood sample, Dr. Julien was not absolutely
certain Samuel had taken another, different drug. Id.
The district court excluded Dr. Julien’s opinion about Samuel’s possible intoxication
from Celexa because Dr. Julien did not have sufficient facts to conclude Samuel had Celexa in
his system on the day of the murders or that intoxication caused Samuel’s conduct. Id. at 777,
452 P.3d at 799. The Idaho Supreme Court affirmed this ruling on appeal. The Court concluded
that “Dr. Julien had to speculate that Samuel had Celexa in his bloodstream on the day of the
murders” and that “because there was no blood draw, there was no definitive way to know
whether Samuel was intoxicated from Celexa on the night of the murders.” Id. at 777, 778, 452
P.3d at 799, 800.
Oberg argues that “similar to Samuel, there was no evidence on the presence and
concentration of Seroquel in K.O.’s ‘blood stream that night or whether it could cause
intoxication’” and that “the State’s evidence was insufficient to lend any reliability to
Dr. Dawson’s opinions.” Despite the lack of a blood draw, we conclude the State presented
sufficient evidence to support Dr. Dawson’s general opinion about the combined effects of
ingesting Seroquel, alcohol, and marijuana on an individual’s ability to consent. The State
presented evidence that E.G. kept 100-milligram doses of Seroquel in the camper; Oberg had
access to and may have taken E.G.’s Seroquel; Oberg later confessed to an inmate that he had
given Seroquel to K.O.; and K.O. smoked three bowls of marijuana with Oberg that day and
drunk six beers that night.
These facts presented at trial are the type of facts upon which Dr. Dawson was entitled to
rely in formulating his general opinion. See Stanfield, 158 Idaho at 341, 347 P.2d at 189 (ruling
expert may rely on facts presented at trial). This evidence was sufficient for Dr. Dawson to
opine about the likely level of impairment of an individual who had consumed as much beer and
marijuana as K.O. testified that she had consumed and had also been administered Seroquel in an
amount equivalent to E.G.’s dosage. Although the jury would first have to accept these
underlying facts as true before accepting Dr. Dawson’s opinion, that prerequisite does not make
the facts upon which Dr. Dawson relied speculative, as Oberg argues. Accordingly, the district
court did not abuse its discretion by denying Oberg’s motion to exclude Dr. Dawson’s testimony.
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B. Hearsay
Oberg also challenges the district court’s rulings on his hearsay objections to the
Snapchat messages the State admitted in evidence, Exhibits A through F. 1 Before the first trial,
Oberg moved in limine generally to exclude the Snapchat messages between him and K.O. The
district court denied Oberg’s motion. In doing so, the court noted that the messages were
“extensive”; Oberg did not identify any particular inadmissible hearsay statements; and the court
would neither assume which of the statements Oberg sought to exclude nor search the record for
hearsay statements. The court stated, however, that it would consider the admissibility of any
specific statements Oberg identified as hearsay at trial.
Thereafter, the State moved during the first trial to admit in evidence several Snapchat
messages between K.O. and Oberg, including Exhibits A through I. Oberg objected to
Exhibits A through F on hearsay grounds. In response, the prosecutor argued that these Snapchat
messages comprised a single conversation containing admissions by a party opponent and that
the entirety of these messages was necessary to provide the admissions’ context, including
Oberg’s admission that “OK sorry i did that i know i went to [sic] far i was drunk i know that is
no exvuse [sic].” Ruling on Oberg’s hearsay objection, the district court ordered the State to
redact certain hearsay statements from Exhibits A through F and then admitted the remaining
statements in evidence.
Before the second trial, the district court ruled that the evidentiary rulings from the first
trial would remain “in effect” during the second trial. For example, during the pretrial
conference the court stated that “the ruling[s] that I made on evidence in the first trial are to
remain in effect on the evidence in the second trial unless there’s some new argument that I’ve
not heard regarding their admissibility.” Also, in a subsequent written order, the court
specifically addressed the Snapchat messages ruling that “the hearsay statements contained in the
State’s Snapchat exhibits . . . shall remain redacted for this second trial.” Then, during the
second trial, the State moved to admit in evidence the redacted Exhibits A through F; the district
court inquired “Any objection?”; Oberg’s counsel responded “No, Your Honor”; and the court
noted that the exhibits were admitted “without objection.”
1
The entirety of the State’s exhibits of K.O. and Oberg’s Snapchat messages included
Exhibits A through I. Oberg, however, never objected to Exhibits G, H, or I on hearsay grounds,
and those exhibits are not at issue on appeal.
7
On appeal, Oberg argues the district court abused its discretion by overruling his hearsay
objection in part. He asserts that the court “did not apply the correct evidentiary standards by
declining to further redact [the Snapchat] messages as requested by [Oberg].” Despite this
assertion, Oberg does not identify any particular “evidentiary standard” the court incorrectly
applied. Rather, he argues that significant portions of Exhibits A through F were “not necessary
to provide context to [Oberg’s] admissions.” The State responds that, among other things, Oberg
waived his hearsay objections to the redacted Exhibits A through F when he affirmatively stated
during the second trial that he had no objection to their admission. In reply, Oberg argues that
because the court had already unqualifiedly ruled during the first trial on the admissibility of the
redacted Exhibits A through F, he was not required to object further and that “his ‘no objection’
at the second trial was not a waiver of the district court’s unqualified pre-trial ruling on the
hearsay issue.”
We agree with the State that Oberg waived his objections to the redacted Exhibits A
through F by affirmatively stating “no objection” to the admission of these exhibits during the
second trial. Generally, the trial court’s denial of an objection is adequate to preserve that
objection. For example, “the denial of a motion in limine generally preserves an issue for
appeal.” State v. Gray, 129 Idaho 784, 793, 932 P.2d 907, 916 (Ct. App. 1997). If the trial court
unqualifiedly denies a motion in limine, the party opposing the evidence’s admissibility is not
required to object to the evidence again at trial to preserve the issue for appeal. State v. Hester,
114 Idaho 688, 700, 760 P.2d 27, 39 (1988). Also, I.R.E. 103(b) provides that “once the court
rules definitively on the record--either before or at trial--a party need not renew an objection or
offer of proof to preserve a claim of error for appeal.” Even if the denial of a pretrial motion
preserves an evidentiary objection for appeal, however, the objection may be waived at trial.
Gray, 129 Idaho at 794, 932 P.2d at 917. For example, the Idaho Supreme Court ruled in
Davidson v. Beco Corp., 112 Idaho 560, 564, 733 P.2d 781, 785 (Ct. App. 1986), rev’d on other
grounds, 114 Idaho 107, 753 P.2d 1253 (1987), that “the motion will serve as a continuing
objection unless counsel plainly abandons the objection by his subsequent words or conduct.”
In this case, we conclude Oberg plainly abandoned his hearsay objection to the redacted
Exhibits A through F during the second trial. Specifically, Oberg’s counsel expressly stated “no
objection” in response to the district court’s inquiry whether Oberg objected to the State’s
motion to admit the exhibits during the second trial. Immediately thereafter, and before the court
8
admitted the exhibits and published them to the jury, the court--at Oberg’s request--reviewed the
exhibits “to clarify that the exhibits [to be admitted] are the ones we discussed.” Although
Oberg likely could not have remained silent in response to the court’s inquiry for a response to
the State’s motion to admit Exhibits A through F, Oberg could have simply stated he had no
objection other than his prior hearsay objection. In particular, Oberg made no argument--as he
does now on appeal--that additional statements in the exhibits should be redacted, despite the
court’s earlier statement that the evidentiary rulings from the first trial would “remain in
effect . . . unless there’s some new argument.” Because Oberg abandoned his hearsay objection
to the redacted Exhibits A through F, we need not address the merits of his hearsay argument on
appeal.
C. Exclusion of Defendant’s Exhibit 1
As an alternative to arguing the district court abused its discretion by admitting the
redacted Exhibits A through F without further redaction, Oberg asserts the court abused its
discretion by excluding Defendant’s Exhibit 1. Exhibit 1 included additional Snapchat messages
between Oberg and K.O., which apparently followed after the Snapchat messages the State
admitted in Exhibits A through I. Oberg argued that the messages in Exhibit 1 suggested that at
some time before Oberg raped K.O., she consensually engaged in other conduct of a sexual
nature with Oberg. Oberg sought to admit Exhibit 1 during K.O.’s cross-examination after she
testified that Exhibits A through I “comprise[d] the entirety of the Snapchat exchange” between
she and Oberg during that particular timeframe. In response, the prosecutor objected under
Idaho Rule of Evidence 412, which generally prohibits the admission of evidence regarding the
victim’s past sexual behavior. The prosecutor also argued that Exhibit 1 was irrelevant to the
issue of consent and that Oberg failed to establish foundation relative to the “night in question.”
After voir dire about Exhibit 1, counsels’ arguments and a recess to consider the matter,
the district court sustained the State’s objection and ruled Exhibit 1 was not relevant. The court
noted that the State charged Oberg with rape under subsections (5) or (7) of I.C. § 18-6101,
which provide that the victim was unable to resist due to intoxication or unconsciousness. The
court ruled that Exhibit 1 was not relevant because it did not tend to prove or disprove the State’s
allegations that K.O. was drugged and that consent is not a defense to a violation of either I.C.
§ 18-6101(5) or I.C. § 18-6101(7). Thereafter, when denying Oberg’s motion for a new trial, the
court reiterated its ruling that Exhibit 1 was not relevant. Further, the court ruled that Exhibit 1
9
lacked foundation because Oberg failed to establish the timeframe when the alleged past sexual
behavior referenced in Exhibit 1 occurred and that Exhibit 1 would have been more prejudicial
than probative.
On appeal, Oberg argues Exhibit 1 was admissible under Rule 412(b)(2), which provides
“an alleged victim’s past sexual behavior with respect to the person accused of the sex crime” is
admissible “if offered by the defendant to prove consent.” 2 Specifically, Oberg argues he was
entitled to defend against the rape charge by trying to prove K.O. did not resist because the
conduct was consensual. The State responds that Oberg fails on appeal to challenge the district
court’s alternative rulings that Exhibit 1 was inadmissible because it lacked foundation and was
more prejudicial than probative.
We agree with the State. If a trial court provides alternative grounds for its ruling, the
appellant must challenge each alternative ground on appeal. If an appellant does not challenge
all of the alternative grounds for the ruling, then this Court must affirm on any uncontested basis.
State v. Ewell, 147 Idaho 31, 34, 205 P.3d 680, 683 (Ct. App. 2009); State v. Goodwin, 131
Idaho 364, 366, 956 P.2d 1311, 1313 (Ct. App. 1998). Because Oberg failed to challenge the
district court’s ruling that Exhibit 1 lacked foundation and was more prejudicial than probative,
we affirm the district court’s ruling on these alternative grounds.
D. Cumulative Error
Oberg also contends that the cumulative error doctrine requires a reversal of his
conviction. Under the doctrine of cumulative error, a series of errors, harmless in and of
themselves, may in the aggregate show the absence of a fair trial. State v. Adamcik, 152 Idaho
445, 483, 272 P.3d 417, 455 (2012). However, a necessary predicate to the application of the
2
Oberg also argues that Exhibit 1 was relevant to challenge K.O.’s testimony that
Exhibits A through I contained no missing pages. Further, Oberg argues that under “the rule of
completeness,” Exhibit 1 was “necessary to provide a full picture” of K.O. and Oberg’s
relationship and their conduct that night” including that they “discussed and engaged in
consensual sexual conduct on the night of the alleged rape.” These arguments, however, ignore
that evidence of K.O.’s past sexual conduct is generally inadmissible under I.R.E. 412(a). Oberg
does not cite any authority providing that past sexual conduct is admissible for purposes of cross-
examining the witness or under the “rule of completeness.” State v. Zichko, 129 Idaho 259, 263,
923 P.2d 966, 970 (1996) (noting party waives issue on appeal if either authority or argument is
lacking). Moreover, contrary to Oberg’s assertion, no evidence established the Snapchat
messages in Exhibit 1 related to conduct occurring on “the night of the alleged rape” as he
asserts.
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doctrine is a finding of more than one error. Id. Because the district court’s evidentiary rulings
which Oberg challenges on appeal were not in error, the cumulative error doctrine is inapplicable
in this case.
E. Corrections to PSI
On appeal, Oberg argues the district court abused its discretion after it accepted Oberg’s
corrections to the PSI but failed to redline the PSI to reflect those corrections. The rules of
evidence are not applicable to a PSI. State v. Rodriguez, 132 Idaho 261, 263, 971 P.2d 327, 329
(Ct. App. 1998). The court, in its discretion, may consider information which would otherwise
be inadmissible at trial, such as hearsay, as long as the court believes the information is reliable
and the defendant has an opportunity to present favorable evidence and to explain or rebut
adverse information. State v. Carey, 152 Idaho 720, 721, 274 P.3d 21, 22 (Ct. App. 2012); see
also I.C.R. 32(e)(1) (noting court may consider reliable, inadmissible information in PSI). The
court, however, must disregard information if there is no reasonable basis to deem it reliable,
such as when the information is simply conjecture. Carey, 152 Idaho at 721, 274 P.3d at 22.
This Court in Golden articulated a district court’s obligations when considering a PSI:
When considering a PSI, the district court has two distinct obligations.
First, the court must reject consideration of inaccurate, unfounded, or unreliable
information in the PSI. See, e.g., [Carey, 152 Idaho at 722, 274 P.3d at 23]
(noting unfounded, unreliable, or inaccurate information must be rejected); State
v. Molen, 148 Idaho 950, 961, 231 P.3d 1047, 1058 (Ct. App. 2010) (noting court
correctly declined to consider unreliable information). Second, the court must
redline from the PSI information it is excluding as incorrect or unreliable.
See Molen, 148 Idaho at 961, 231 P.3d at 1058 (ruling unreliable and incorrect
information should be stricken from PSI). A court, however, is not required to
strike or disregard information in the PSI simply because the defendant disputes
the information. Carey, 152 Idaho at 722, 274 P.3d at 23 (noting no authority
provides court must strike information from PSI because defendant disputes
information).
This Court has ruled that, when the trial court concludes information in the
PSI is incorrect or unreliable, the trial court should cross out or redline that
information from the PSI and send a corrected copy of the PSI to the Idaho
Department of Correction. Molen, 148 Idaho at 961-62, 231 P.3d at 1058-
59 (ruling trial court should strike unreliable information); see also
I.C.R. 32(h)(1) (making PSI available to Department so long as defendant is
committed to or supervised by Department). The rationale for redlining such
information from the PSI is both to provide a clear record for appellate review and
to avoid any unreliable information from prejudicing the defendant in the
future: “This procedure not only ensures a clear record for review but also
protects the defendant against misuse of the unreliable information in the future.”
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Molen, 148 Idaho at 961, 231 P.3d at 1058 (quoting Rodriguez, 132 Idaho at 262
n.1, 971 P.2d at 328 n.1).
Golden, 167 Idaho at 511-12, 473 P.3d at 379-80.
During the sentencing hearing, Oberg requested two corrections. First, he noted the PSI
indicated he was previously supervised for “some fairly serious offenses such as . . . the Forcible
Sexual Abuse.” Oberg explained, however, that he was not prosecuted for that offense, and thus
he was never supervised for it. The prosecutor indicated no objection to the requested
correction, and the district court agreed to strike “forcible sexual abuse” from the statement.
About this correction, the court stated that “for the record, when I make those corrections in the
document, I do those on here, it comes across as red. And so I’ve stricken that and initialed
that.” Second, Oberg noted the PSI stated a child protective order for his son was issued but
failed to indicate the order was later dismissed. The prosecutor commented she did not have a
copy of the dismissal order but would defer to the district court’s discretion to make the
correction, and the court stated, “I’ll just note that it was dismissed on June 28.”
This record indicates the district court understood its obligation not to consider incorrect
or unreliable information in the PSI and to redline that information from the PSI. As Oberg
accurately notes, however, the PSI in the appellate record does not indicate the corrections.
Although that PSI contains yellow and red highlighting and some underlined language, the PSI
does not indicate either of the corrections the court expressly stated on the record that it was
making. Because a corrected PSI is not in the appellate record in this case, we remand the case
to ensure that the court’s corrections are reflected in Oberg’s PSI and the corrected PSI is
distributed as required by I.C.R. 32(h). See Molen, 148 Idaho at 962, 231 P.3d at 1059 (directing
court to cross out unreliable information on PSI and send corrected copy to Department of
Correction).
We reject the State’s argument that the absence of a corrected PSI in the appellate record
constitutes harmless error. The State fails to cite any authority or make any argument that the
harmless error doctrine applies to the district court’s consideration of a PSI. A party waives an
issue on appeal if either authority or argument is lacking. State v. Zichko, 129 Idaho 259, 263,
923 P.2d 966, 970 (1996).
F. Excessive Sentence
Finally, Oberg argues his sentence is excessive. Where a sentence is not illegal, the
appellant has the burden to show that it is unreasonable and thus a clear abuse of discretion.
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State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such
an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice,
103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it
appears at the time of sentencing that confinement is necessary to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,
rehabilitation, or retribution applicable to a given case. State v. Toohill, 103 Idaho 565, 568, 650
P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed
an excessively harsh sentence, we conduct an independent review of the record, having regard
for the nature of the offense, the character of the offender, and the protection of the public
interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When
reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver,
144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
Oberg argues the district court abused its discretion by imposing an excessive sentence
under any reasonable view of the facts. Specifically, he contends the court should have
sentenced him to a lesser term and retained jurisdiction in light of the mitigating factors,
including his difficult childhood, mental health issues, and amenability to treatment. The record
shows that the court was aware of these factors but weighed this information against the
aggravating factors. In articulating and formulating Oberg’s sentence, the court concluded
Oberg presented a high risk of future criminal conduct as stated in both the PSI and the
psychosexual evaluation; he has a lengthy past criminal record of similar concerning conduct;
treatment has not and would not be successful in his case; and prison is an “appropriate deterrent
to not only [Oberg], but other people in the community who think about engaging in this type of
conduct.”
That the district court did not elevate the mitigating factors over the need to protect
society and to deter similar conduct does not establish an abuse of discretion. See State v.
Felder, 150 Idaho 269, 276-77, 245 P.3d 1021, 1028-29 (Ct. App. 2010) (“[W]hile the mitigating
factors identified by [the defendant] may have some relevancy to sentencing, a court is not
required to assess or balance all of the sentencing goals in an equal manner.”). The court
properly considered the sentencing objectives of protecting society and of achieving punishment,
deterrence, and rehabilitation. See Toohill, 103 Idaho at 568, 650 P.2d at 710
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(identifying sentencing objectives). Accordingly, we cannot say the district court abused its
discretion in sentencing Oberg.
III.
CONCLUSION
The district court did not abuse its discretion by denying Oberg’s motion to exclude
Dr. Dawson’s testimony about the effects of Seroquel, alcohol, and marijuana; by admitting the
redacted Exhibits A through F during the second trial; or by excluding Defendant’s Exhibit 1.
Because these evidentiary rulings were not in error, the cumulative error doctrine is inapplicable
in this case. Further, the court did not abuse its discretion in sentencing Oberg. Accordingly, we
affirm Oberg’s judgment of conviction and his sentence. We remand this case, however, for the
court to ensure any changes it made to the PSI are reflected on the PSI which is subject to
disclosure under I.C.R. 32(h).
Judge GRATTON and Judge LORELLO CONCUR.
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