State v. Tolman , 121 Idaho 899 ( 1992 )

BAKES, Chief Justice.

Defendant appellant, Donald Marvin Tolman (Tolman), appeals from convictions of two counts of lewd and lascivious conduct and one count of sexual abuse. Tolman also appeals from the district court’s denial of his motion to reduce his sentence.

Tolman was charged with two counts of lewd conduct involving two different boys under sixteen. Tolman was also charged with the separate crime of sexual abuse of a third boy under sixteen. Tolman moved to sever the sexual abuse count from the two lewd conduct counts. The district court denied the motion, concluding that Tolman had failed to show unfair prejudice and that evidence of the sexual abuse count could properly be admitted in the trial of the lewd conduct counts. The following factual or procedural events which occurred at trial form the basis for the issues Tolman raises on this appeal.

Prior to trial, the trial court advised the jury that the defendant was charged with lewd conduct and sexual abuse of minors. The prosecutor asked during voir dire if any of the potential jurors knew anyone who had been molested as a child. Two jurors acknowledged that they did and, while they were not removed for cause, they were removed by the defendant’s peremptory challenges. A third juror, Mr. Stone, on the second day of trial, advised the court that his wife had been abused.¹ After the court and counsel questioned Mr. Stone, the court decided not to remove him because it found no evidence that Stone would have been removed for cause, that he was unable to perform his duties as a juror, or that his non-disclosure tainted the voir dire process. The defense objected to Mr. Stone’s continuing, claiming that he, like the other two jurors, would have been peremptorily challenged had he been forthcoming with the information at voir dire.

In another assertion of error, Tolman argues that at trial, one of the jurors asked the court if they could question the witnesses. The court advised the jurors that they could ask questions of witnesses by submitting written questions to the court. The defense objected to the procedure out of the presence of the jury, but the court overruled the objection on the basis that “better communication between people who are receiving information is enhanced by a two-way communication.” Only one juror submitted a question at trial, to which the state objected. The court ruled that the question could not be answered, but did not inform the jury whether it was the state or the defense who had objected to the question. Tolman claims that the jury could therefore have inferred that he was the one who prevented them from hearing the evidence.

In a separate case, Tolman had been charged with committing a prior sexual act with the same victim as that listed in Count I of the information in this case. A few days prior to commencement of this trial, Tolman was acquitted of that charge. In this case, the court prohibited any reference to the defendant’s acquittal, to which the defense objected, claiming that evidence of the acquittal would be relevant both to impeachment and to the credibility of the witness. The court disagreed, holding that the acquittal may have been entered for reasons other than credibility of the victim.

In still another questioned ruling, the court admitted evidence of prior uncharged sexual acts between the defendant and each of the three victims on the theory that the prior acts were relevant to show a common scheme or plan. During the defense cross-examination of one of the victims, he testified that one of the uncharged incidents, the Swan Falls incident, occurred after the incident charged in the information. Tolman moved for a mistrial. The court denied the motion and instructed the jury to disregard the testimony regarding the subsequent Swan Falls incident.

The jury ultimately found Tolman guilty on all three counts. The court sentenced Tolman to a fixed period of ten years followed by an indeterminate term not to exceed life imprisonment on Count I; to a fixed period of fifteen years, followed by an indeterminate period of confinement not to exceed life on Count II; and to a fixed period of ten years, followed by an indeterminate period of confinement not to exceed five years on Count III, the three sentences to run concurrently. Tolman filed a I.C.R. 35 motion seeking a reduction of his sentence; the court reviewed the recommendations of the Department of Corrections and denied the motion. Tolman appeals his convictions and the denial of his motion to reduce his sentence.

On appeal, Tolman argues the trial court erred by: (1) refusing to declare a mistrial when one of the jurors failed to reveal that his wife had once been sexually molested; (2) admitting testimony of prior uncharged sexual acts; (3) allowing the jurors to question the witnesses; (4) refusing to allow evidence of Tolman’s acquittal in a prior case; (5) failing to sever count III from counts I and II; and, (6) failing to reduce Tolman’s sentence.

With regard to the first issue, Tolman argues that the trial court erred by failing to declare a mistrial when juror Stone failed to reveal during voir dire by the prosecuting attorney that his wife had been sexually molested as a child. Tolman claims that had Stone been forthcoming with that information, he would have been peremptorily challenged, just as two other jurors with similar revelations were. Tolman argues that under the circumstances, he was denied the full freedom to exercise his peremptory challenges. We disagree.

A motion for mistrial is directed to the sound discretion of the trial court, and its ruling will not be disturbed absent showing an abuse of discretion. State v. Talmage, 104 Idaho 249, 658 P.2d 920 (1983). In McDonough Power Equipment v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), the Supreme Court addressed a claim similar to that which Tolman urges today. In McDonough, a juror failed to affirmatively respond to a question during voir dire as to whether he or any of his family members or relatives had ever sustained an injury resulting in some disability. Only after a three week trial had ended did defense counsel learn that the juror’s son had been so injured. The Court held:

To invalidate the result of a 3-week trial because of a juror’s mistaken, though honest, response to a question, is to insist on something closer to perfection than our judicial system can be expected to give. A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination____ We hold that to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.

464 U.S. at 555-556, 104 S.Ct. at 849-850 (emphasis added).²

The McDonough case sets forth the appropriate standard to be applied in this situation. Assuming that Stone failed to answer honestly a material question, our inquiry then becomes whether a correct response by Stone “would have provided a valid basis for a challenge for cause.” Under I.C. § 19-2019, Stone would have been subject to removal for cause only if he had displayed “the existence of a state of mind ... in reference to the case, or to either of the parties, which, in the exercise of a sound discretion on the part of the trier, leads to the inference that he will not act with entire impartiality, and which is known in this code as actual bias.”

The record shows that Stone was thoroughly questioned by the court and by counsel concerning any possible effect that his wife’s molestation would have on his consideration of the case. Stone repeatedly stated that he would be fair and did not think his wife’s molestation would affect his judgment in any way. The trial court concluded that Stone was not prejudiced and remained qualified to serve as a juror. That decision was within the trial court’s discretion and the court’s decision not to declare a mistrial on that basis was not an abuse of discretion. State v. Talmage, 104 Idaho 249, 658 P.2d 920 (1983).³

Next, Tolman contends that the trial court erred in permitting evidence of prior uncharged crimes to go to the jury. Tolman argues that the testimony relating to the uncharged incidents does not fall within the exceptions listed in I.R.E. 404(b) and that the prejudicial impact of such evidence substantially outweighed its probative value.

At trial, the court admitted evidence, over defendant’s objections, of prior uncharged sex acts between the defendant and each of the three victims. With regard to J.H., Count III charged Tolman with sexual abuse, that allegedly occurred while J.H. and Tolman were alone in Tolman’s house. Prior testimony was admitted relating to similar misconduct in an old, burned down house, with none present save Tolman and J.H., and yet another incident that occurred while J.H. and his brother T.H. were camping with Tolman.

Regarding the victim, D.P., Count II related to an incident that occurred while D.P. and T.H. were at Tolman’s house. The trial court admitted evidence of prior misconduct that occurred while D.H., Tolman, and a third party were camping. In Count I, Tolman was charged by T.H. for lewd conduct that occurred during the same episode as that in Count II. T.H. also offered testimony relating to prior incidents, namely, the camping trip with J.H. and Tolman. The trial court allowed the testimony of this uncharged conduct to come in on the theory that such evidence showed a common plan or scheme leading to the charged offense.

Idaho Rule of Evidence 404 states in pertinent part:

(a) Character evidence generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, ____

(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. [3-5] Subsection (a) thus sets forth the

generally recognized rule that evidence of a defendant’s previous crimes or misconduct is not admissible for propensity purposes. State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979). However, under subsection (b), evidence of other crimes or wrongs may be admitted when relevant to prove such things as identity, motive, intent, preparation, plan, etc. State v. Wrenn, 99 Idaho 506, 584 P.2d 1231 (1978). The exceptions listed in subsection (b) are representative of the types of uses for which evidence of other crimes may be admitted, but the exceptions are not exhaustive. State v. Sharp, 101 Idaho 498, 616 P.2d 1034 (1980); United States v. Masters, 622 F.2d 83 (4th Cir.1980); United States v. Beechum, 582 F.2d 898 (5th Cir.1978).⁴ Nevertheless, if such evidence falls within an exception, it may still be barred if the probative value of such evidence is substantially outweighed by its prejudicial impact. I.R.E. 403.

We recently dealt with the precise issue we now face, i.e., whether, in a case regarding lewd conduct and sexual abuse of a minor, testimony of prior sexual misconduct was admissible under I.R.E. 404(b), in State v. Moore, 120 Idaho 743, 819 P.2d 1143 (1991). In Moore, we held that such testimony was indeed admissible to show a common scheme or plan and explained our holding as follows:

Although corroboration is no longer mandatorily required in all sex crime cases, [f.n. 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.

[f.n. 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.

120 Idaho at 745-46, 819 P.2d at 1145-46 (emphasis added).

Cognizant of the principles we explained in Moore, a substantial number of courts have adopted the rule that evidence of prior misconduct is admissible where it is relevant to the credibility of the parties.⁵ As one court stated:

The offense almost always occurs in private. The only direct witnesses are the prosecuting witness and the defendant. Although circumstantial evidence supplies occasional corroboration, conviction usually hinges upon the credibility of the prosecuting witness. In this kind of case beyond any other, the defendant’s plea of innocence challenges the credibility of the alleged victim. The challenge inheres in the very nature of the contest and usually demands an answer long before the prosecution’s turn for rebuttal. A minimal defense, even when the defendant elects not to testify, demands that the alleged victim be accused of falsehood, spite or delusion.

People v. Covert, 249 Cal.App.2d 81, 88, 57 Cal.Rptr. 220, 224-225 (1967) (footnotes omitted).

Applying these principles to the present case, we are persuaded that the trial court did not err in admitting the subject evidence and correctly characterized the evidence as demonstrating a common plan or scheme. The evidence shows that Tolman typically targeted young male victims. The evidence further shows that Tolman shrewdly won over his victims’ confidence, trust, and friendship by inveigling them to accompany him on various errands and adventures (taking them camping and inviting them to his home, etc.). Having thus secured their confidence, Tolman then subjected his victims to sexual abuse.

Standing alone, the incidents charged in the information possess only that degree of believability as would naturally attach to the testimony of a young boy counterbalanced by the testimony of the alleged perpetrator, and whatever other circumstantial evidence may have been brought to light. This was clearly the case with respect to count III, which matched J.H.’s word against that of the defendant. However, when these events are taken in conjunction with the detailed testimony elicited as to the prior incidents, the jury was better able to compare patterns and methods, details and generalities, consistencies and discrepancies, and thereby made a more meaningful and accurate assessment of the parties’ credibility.

We do not suggest today that any and all evidence of prior sexual misconduct is admissible in sex crime cases merely by placing it under the rubric of corroborative evidence of a common scheme or plan. Furthermore, such evidence is still subject to the limitations imposed by I.R.E. 403 which proscribes both the “needless presentation of cumulative evidence,” and evidence whose “probative value is substantially outweighed by the danger of unfair prejudice.” The trial court found that neither of these limitations was violated in the instant case, and that holding is consistent with our prior cases.

Additionally, Tolman argues that the trial court erred in admitting testimony of J.H. as to the incident that occurred at Swan Falls, which apparently occurred subsequent to the incidents charged in the information. Tolman argues that it was error to admit such evidence because the rule requires that the conduct occur prior to the incidents alleged in the information. We disagree.

We have dealt with this issue on previous occasions and rejected the notion that evidence of subsequent misconduct is per se inadmissible. State v. Stratford, 55 Idaho 65, 37 P.2d 681 (1934). In State v. Greensweig, 102 Idaho 794, 641 P.2d 340 (Ct.App.1982), the Court of Appeals stated:

The threshold question regarding admission of evidence of other crimes is relevancy. No logical distinction between prior and subsequent crimes is apparent to justify a per se rule of the sort appellant asserts. The very rule appellant asserts has been tested and rejected. State v. Stratford, 55 Idaho 65, 72, 37 P.2d 681, 684 (1934).

102 Idaho at 798, 641 P.2d at 344. More recently, in Moore, supra, we specifically stated that “[ejvidence 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.” 120 Idaho at 746, 819 P.2d at 1146 (emphasis added).⁶

Tolman next argues that the trial court erred in allowing the jurors to ask questions of the witnesses. Tolman claims that such a practice is not allowed under the rules and, further, that defense counsel is placed in the untenable position of being forced to object to questions, thereby allowing the jury to infer that the defense is trying to conceal something from them. Without deciding whether such a practice is permissible—and Tolman points to no rule that specifically prohibits the practice—we simply note that here the jury asked one question which the court did not submit to the witness because it had already been covered. Accordingly, assuming such practice is improper, no question was submitted to a witness by the jury in this case. Moreover, the trial court explicitly instructed the jury that they were not to consider the reasons for any objections. There is no showing that the jury drew any inference from the trial court’s refusal to ask the question. Thus we find no error.

Tolman also argues that the trial court erred in refusing to allow evidence of his prior acquittal. Apparently, Tolman had recently been acquitted of charges brought by one of the victims in this case and argues the jury had the right to receive that information as it would tend to dispel the adverse impact occasioned by the court’s admission of the evidence of prior uncharged acts.

In State v. Schwartzmiller, 107 Idaho 89, 92, 685 P.2d 830, 833 (1984), we stated:

A not guilty verdict, standing by itself, can never be taken to establish that the charges brought were based on false accusations, since one may not be convicted of a crime unless a jury finds beyond a reasonable doubt the guilt of the defendant. As stated in Little v. State, 413 N.E.2d 639, 643 (Ind.App.1980), “We believe that evidence of false accusations of similar sexual misconduct is admissible on the issue of the victim’s credibility. The allegations, however, must be demonstrably false.” ... The exclusion of that line of testimony was not error.

As the district court stated in ruling on this issue:

That issue of credibility is a matter for the jury to determine from all of the various factors that relate to credibility. And the jury may have decided the case for any number of reasons which had absolutely nothing to do with that particular witness’s credibility. They may have decided that this witness was truthful, but that some other element which that witness couldn’t testify to was not present. Since the court was not present at that trial, I’m in no position to second guess the jury on that.

We believe the reasoning of the district court was correct on this issue. Schwartz-miller, supra.

Tolman next argues that the trial court erred in failing to sever Count III from Counts I and II. Specifically, Tolman contends that Count III dealt with the charges of sexual abuse brought by J.H. with respect to an incident of abuse that occurred while J.H. was alone with the defendant and which had nothing to do with the incidents charged in the other counts. We need not consider this issue on appeal as the record reflects that Tolman’s motion to sever was not timely made pursuant to I.C.R. 12(b)(5). State v. Martin, 119 Idaho 577, 808 P.2d 1322 (1991). Nevertheless, we find no error in the trial court’s denial of the motion.

Finally, Tolman argues that the trial court erred in refusing to reduce his sentence. A motion to reduce a legally imposed sentence is addressed to the sound discretion of the trial court. State v. Araiza, 109 Idaho 188, 706 P.2d 77 (1985). After considering all the relevant facts and circumstances surrounding this case and this defendant, we believe Tolman’s sentence was well tailored to the purpose for which it was imposed. Tolman was characterized by the Department of Corrections’ report as being a “high risk offender.” The record reveals that Tolman’s deviant activities are practically inveterate. He has four prior felony convictions for sexual abuse of children. Accordingly, the sentence was necessary to protect society from his continued sexual abuse of children.

Judgment and sentence affirmed.

BOYLE and McDEVITT, JJ., concur.

1 . After Mr. Stone revealed to the court that his wife had been sexually molested when she was young, he had the following conversation with the defense counsel and the court:

STONE: In all sincerity, I don’t think that it would affect my judgment in making the decision. What I said in the letter, the incident with my wife, I didn’t think of when you asked me the question—

COUNSEL: Was that there—

STONE: But when I thought about it—

COUNSEL: —as you were sitting during listening to the testimony yesterday?

STONE: No. No. When I got home, I just thought about it; didn’t have anything to do with the testimony.

******

COURT: I have a couple of questions. Mr. Stone, will this information that you have about your wife’s past history in any way make you unable to perform your duties that you have undertaken as a juror in this case?

STONE: No.

COURT: Do you feel that you can still be fair and impartial to both the defendant and to the State in this matter?

STONE: Yes.

COURT: Do you have, because of that incident, any fixed opinion or bias either for or against the defendant?

STONE: No. I mean, I know so little about it.

COURT: And by that you mean so little about the case that is involved against the defendant?

STONE: No. So little about—

COURT: So little about what happened to your wife?

STONE: Yeah.

COURT: Just the fact that there was an incident, do you think that that would make a difference to you in the way that you would approach this case?

STONE: No.

2 . McDonough involved a civil products liability action, but the standards articulated in McDonough have been applied in the criminal context. See, e.g., United States v. O'Neill, 767 F.2d 780 (11th Cir.1985); United States v. Perkins, 748 F.2d 1519 (11th Cir.1984).

3 . We have been cited to a recent case, Burton v. Johnson, 948 F.2d 1150 (10th Cir.1991), which held, in a murder case involving the battered woman’s syndrome defense, that a juror's failure to disclose her own physical and mental abuse at the hands of her husband warranted reversal of a guilty verdict. In Burton, the court applied the McDonough test and concluded that the juror’s “failure to respond on voir dire denied Mrs. Burton a fair trial ..., for it is clear that the juror did fail to answer a material question, and that a correct response would have provided a basis for a challenge for cause.” 948 F.2d at 1159. The court based its conclusion that the juror would have been challenged for cause on the fact that two other prospective jurors had been so challenged and removed.

In this case, we do not find the Burton holding persuasive. First, as the Burton dissent points out, the trial court has the best "opportunity to observe and evaluate the demeanor” of the potential juror. Further, in this case, the other two members of the panel who acknowledged that they were acquainted with victims of sexual abuse were not challenged for cause but were peremptorily challenged by the defense. Tolman has made no showing that juror Stone would have been challenged for cause, as required by McDonough. Thus, this case is different from Burton, in which the jurors with similar answers were challenged for cause, allowing the court to infer that the juror who failed to honestly respond during voir dire would also have been so challenged.

4 . I.R.E. 404(b) is identical to the federal counterpart, and federal cases interpreting this rule are therefore deemed instructive.

5 . See Bowden v. State, 538 So.2d 1226 (Ala.1988); Soper v. State, 731 P.2d 587 (Alaska App.1987); People v. Hunt, 72 Cal.App.3d 190, 139 Cal.Rptr. 675 (1977); Snowden v. State, 537 So.2d 1383 (Fla.App.1989); Stwalley v. State, 534 N.E.2d 229 (Ind.1989); Andrews v. State, 529 N.E.2d 360 (Ind.App.1988); State v. Baker, 535 So.2d 861 (La.App.1988); People v. Burton, 28 Mich.App. 253, 184 N.W.2d 336 (1970); State v. Simerly, 463 S.W.2d 846 (Mo.1971).

6 . Even assuming that the admission of testimony regarding the Swan Falls incident was in error, it was not reversible error. The trial court instructed the jury to disregard the testimony regarding the subsequent, Swan Falls incident. Error in admission of evidence may be cured by proper instruction, and it must be presumed that the jury obeyed the trial court’s direction. State v. Hedger, 115 Idaho 598, 768 P.2d 1331 (1989); State v. Rolfe, 92 Idaho 467, 444 P.2d 428 (1968); State v. Urie, 92 Idaho 71, 437 P.2d 24 (1968). Therefore, this court must presume that the jury did not consider the testimony regarding the Swan Falls incident in reaching its verdict. Given all the other evidence admitted in this case to prove the defendant’s guilt, the jury could easily have reached its verdict without considering the evidence regarding the subsequent, Swan Falls incident.