Estes v. State

725 P.2d 135, 111 Idaho 430, 1986 Ida. LEXIS 507

• Court: Idaho Supreme Court
• Decided: July 31, 1986
• Docket: 15931, 15932
• Status: Published

Opinions

BAKES, Justice.

Kenneth Estes appeals from the district court’s denial of his petition for post conviction relief and his motion for a new trial. Because we find no merit in Estes’ many allegations of error, we affirm the trial court.

Although the facts of this case were extensively set out in State v. Estes, 111 Idaho, 423, 725 P.2d 128 (1986), Estes’ direct appeal from his conviction, a full statement of the facts is helpful to resolution of the issues raised here. In the early morning hours of May 18,1979, at approximately 2:00 a.m., Julie Ann Somerton, an 18 year old who was working in Cascade, Idaho, and staying at the Cascade Hotel, was raped. Immediately after the rape, Ms. Somerton told the bartender that Estes was her assailant. Ms. Somerton was readily able to identify Estes because the evening before Estes had offeréd to buy her a drink at the bar, which she had declined.

Later that same night Estes was arrested while he slept in his car along a road outside of McCall, Idaho. He was charged with assault with the intent to commit rape, and rape. Charles Nicholas was appointed to defend him. Prior to trial, Estes was released on $35,000 bond. After Estes expressly waived his right to a speedy trial, trial was set for November 29, 1979.

At tidal, Julie Somerton testified as a witness for the state. She testified that Estes had entered her room and forcibly raped her four times. She also testified that Estes had accomplished this by holding a knife to her throat and threatening to kill her. She further testified that after Estes left she screamed for help.

Many parts of Julie Somerton’s story were corroborated by testimony from Mr. Kirtland Kitchen, the bartender at the Cascade Hotel. Kitchen testified that Estes had offered to buy Julie a glass of wine. Kitchen also testified that Estes later inquired as to Julie’s room number, and had purchased a bottle of Julie’s favorite wine. He stated that after hearing Julie’s screams he heard someone running down the stairs and an automobile leaving. He stated that he later noticed that Estes’ car, which had previously been parked in front of the hotel, was gone. Kitchen also testified that at approximately 1:00 a.m., a short hour before the rape, Estes had rented a room for the night and had been given a room four or five doors from Julie’s apartment.

Estes, testifying on his own behalf, completely denied any involvement with the victim. While admitting that he had considered going to Julie’s room, he stated that he had thought better of it and ultimately decided to leave the hotel. He testified that although he had just paid for a room, at 2:00 a.m. he decided to drive the 30 miles to McCall because he wanted to submit an application for employment at the Shore Lodge. Estes claimed that he had merely decided not to use the room. At the time he was apprehended in the early morning hours, while sleeping in his car outside McCall, Estes was in possession of a pocket knife like the one used in the rape of Julie Somerton. He also admitted that at the time of his arrest he had only $9.91 in his possession.

At his first trial, Estes called two witnesses on his behalf. The first witness, a friend of Estes, admitted on cross examination that he could recall none of the events of the evening of May 17,1979, or the early morning hours of May 18, 1979. The second witness testified that Estes was not the man that the witness had seen outside Julie Somerton’s room the night of the rape. However, on cross examination, the witness admitted that the light had been poor, that he had been drinking and was groggy, and that he had not been wearing his glasses. The testimony which this witness presented at trial differed substantially from the information the witness had given to the police the night of the rape.

After a three-day trial, the jury returned .a verdict finding Estes guilty of rape. Estes remained free on bond pending sentencing. On January 7, 1980, District Judge Walters sentenced Estes to a ten year indeterminate sentence in the Idaho Penitentiary.

After the sentencing hearing, James Sehoenhut was appointed to represent Estes on appeal. An appeal was filed and ten days later, on January 17, 1980, Estes was again released on bond pending his appeal. Subsequently it was determined that only part of the transcript could be located. The portion of the transcript containing the testimony of seven of the state’s witnesses could not be located.¹ Accordingly, this Court vacated the district court’s judgment and remanded the cause for a new trial. Meanwhile, Estes remained free on bond.

A new trial was set for January 31,1983. At this trial Estes was represented by Sehoenhut, his counsel in the earlier appeal. The record contains an affidavit from Sehoenhut stating that the partial transcript of the first trial was available to Sehoenhut and that Sehoenhut extensively studied that transcript. That transcript included the testimony of the victim, Julie Somerton.

At the second trial, Julie Somerton again testified for the state, with Kitchen corroborating her story. The state similarly reintroduced expert testimony seeking to link Estes to the rape. Estes also testified on his own behalf again. However, the two witnesses who had formerly testified for Estes did not testify at this second trial.

On February 2, 1983, a jury again returned a verdict of guilty as to the crime of rape. It was at this time that Estes was actually taken into custody. Then, on March 4, 1983, Estes was again sentenced, receiving a seven year indeterminate sentence.

On March 16, 1983, Sehoenhut filed a notice of appeal on Estes’ behalf. On June 10, 1983, Estes filed a pro se motion for post conviction relief alleging, inter alia, inadequacy of counsel. Subsequently, John Hover, Estes’ present counsel, was appointed. Hover represented Estes both on the second appeal and in this post conviction proceeding.

On July 9, 1984, the district court denied Estes’ motion for post conviction relief on several grounds but left open, pending an evidentiary hearing, the question of whether Estes had effective assistance of counsel. On November 14, 1984, Estes filed a motion for a new trial pursuant to Idaho Criminal Rule 34. After an evidentiary hearing the district court, on February 20, 1985, denied Estes’ motion for a new trial as well as Estes’ motion for post conviction relief. Estes’ direct appeal from his conviction was considered by this Court in State v. Estes, 111 Idaho 423, 725 P.2d 128 (1986). In this consolidated appeal, Supreme Court Nos. 15931-15932, we address the issues raised in Estes’ appeal from the district court’s denial of his petition for post conviction relief and denial of his motion for new trial.

I

Estes alleges that he received ineffective assistance of counsel at trial. In support of this argument, he points to what he alleges are several “glaring” deficiencies, the “cumulative effect” of which, he alleges, “reflect a reasonable probability that appellant was damaged through ineffective assistance of counsel.” We disagree.

The United States Supreme Court has enunciated the standards to be used in determining whether a defendant received effective assistance of counsel at trial. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court stated:

“A convicted defendant’s claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” 466 U.S. at 687, 104 S.Ct. at 2064.

As the Court further stated:

“Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-34, 102 S.Ct. 1558, 1574-75, 71 L.Ed.2d 783 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ See Michel v. Louisiana, 350 U.S. [91] at 101, 76 S.Ct. [158] at 164 [100 L.Ed. 83].” Id. 104 S.Ct. at 2065-66.

While declining to furnish specific guidelines, the Court noted:

“The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 2066.

As to the duty to investigate, the court stated that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. at 2066.

This Court has also addressed the question of what constitutes effective assistance of counsel. In short, a defendant is entitled to the reasonably competent assistance of an attorney. State v. Tucker, 97 Idaho 4, 8, 539 P.2d 556, 560 (1975). Accord Strickland v. Washington, 466 U.S. at 686, 104 S.Ct. at 2064. “A showing that defendant was denied the reasonably competent assistance of counsel is not sufficient by itself to sustain a reversal of the conviction. The defendant, in most cases, must make a showing that the conduct of counsel contributed to the conviction or the sentence imposed.” State v. Tucker, 97 Idaho at 4, 12, 539 P.2d at 564 (1975); see also State v. Tisdel, 101 Idaho 52, 54, 607 P.2d 1326, 1328 (1980). We have also repeatedly stated that we will not attempt to second-guess strategic and tactical choices made by trial counsel. State v. Larkin, 102 Idaho 231, 233, 628 P.2d 1065, 1067-68 (1981); State v. Tucker, 97 Idaho at 10, 539 P.2d at 562.

(2] These standards, articulated by both the United States Supreme Court and this Court, must be used to determine whether Estes received effective assistance of counsel. As the Supreme Court has stated, “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct and to evaluate the conduct from counsel’s perspective at the time.” Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065. The presumption in evaluating attorney effectiveness is that the attorney is competent and that his actions represent sound trial strategy. A defendant shoulders a difficult burden when he seeks to assert ineffective assistance of counsel.² Here, a complete reading of the record reveals that the trial court correctly concluded that Estes did not carry his burden.

It is not enough for Estes to show that his counsel’s performance might have been better, and might have contributed to Estes’ conviction. Rather, under either the standard articulated by the Supreme Court or this Court, Estes must show actual unreasonable representation and actual prejudice. Here such prejudice has not been shown. Simply put, the trial court in the post conviction proceeding, after hearing the evidence, concluded that Estes was convicted because his story appeared to be somewhat preposterous in light of the testimony of the victim which was amply corroborated by other witnesses and evidence.

The evidence, viewed most favorably to the trial court’s findings as it must be viewed on appeal, reflects that defendant Estes approached the victim earlier in the evening of the rape trying to buy her a drink in the hotel bar, and then later in the evening, shortly before the rape occurred, asked the bartender what her room number was. He then checked into the hotel, bought a bottle of wine which he had been advised was her favorite brand, and went upstairs from the bar to where both his room and the victim’s room were located. Approximately an hour later, the bartender heard the victim’s screams, heard someone running down the stairs, and observed that Estes’ automobile, which had been parked in front of the hotel, was gone. Within a short time thereafter the defendant was found sleeping in his car near McCall, Idaho, in possession of a knife substantially identical to that described by the victim shortly after the rape. The victim was clearly able to identify the defendant Estes as the rapist because of his earlier attempts in the evening to befriend her. Regardless of Estes’ allegation that he was prejudiced by counsel’s “cumulative error,” the bare fact remains that Estes’ story was unbelievable, and two separate juries and one trial judge have so found. Accordingly, the record sustains the trial court’s finding that Estes’ conviction was not the result of any alleged incompetent counsel, but resulted from the strong identification testimony of the victim, corroborated by other witnesses at the scene, and Estes’ totally unbelievable explanation for leaving the hotel right after he had checked in and paid cash for his room, only to be found sleeping in his car.

Estes finds fault with Schoenhut’s trial preparation. However, Estes ignores the fact that Schoenhut assumed this case after Estes had already been tried once. The record reflects that extensive discovery was conducted in anticipation of the first trial. Having assumed this case as Estes’ attorney on appeal from the first trial, Schoenhut undoubtedly was privy to the results of this discovery material. Moreover, an affidavit submitted by Schoenhut indicates that Schoenhut carefully read the available portions of the transcript of the first trial, a transcript which contained the entire testimony of Julie Somerton, testimony which had been subjected to scrutiny under cross examination. While an interview with Ms. Somerton might have been helpful, Sehoenhut’s decision not to interview her under the facts of this case was not clearly improper where he had an opportunity to study her prior sworn testimony.

Nor are we convinced that Schoenhut’s failure to investigate Julie Somerton’s prior sexual contacts constitutes inadequacy of counsel. Such evidence is generally inadmissible under I.C. § 18-6105. It must be remembered that Estes was the defendant at trial, not Julie Somerton. Further, as the district court accurately noted when denying Estes’ motions:

“Estes had tried to get Julie to drink with him in the bar. The Defendant left the hotel in his car just after the alleged rape. His own testimony indicated he had seduction of Julie Somerton in mind when he left the bar with a bottle of her favorite wine. Estes had a pen knife like the one used in the rape. With all this evidence and more to corroborate the testimony of Julie Somerton, it would seem that notwithstanding defense counsel could have been much tougher on Julie Somerton in cross-examination if he had been better prepared, Estes failed to show prejudice in the light of all the other evidence corroborating her testimony.”

Estes also finds fault with Schoenhut’s investigation of “the state’s voluminous scientific evidence.” In considering this issue, we are mindful of the Supreme Court’s mandate that competency of counsel is to be presumed. Schoenhut interviewed the state’s witnesses almost immediately after he was appointed as counsel. This is just the sort of prompt investigation which is expected under existing state law. See State v. Larkin, 102 Idaho 231, 233, 628 P.2d 1065, 1067 (1981). As to the need for additional investigation, the Supreme Court has stated that “a particular decision not to investigate must be directly assessed for reasonableness in all of the circumstances, applying a heavy measure of deference to counsel’s judgment.” Strickland v. Washington, 466 U.S. at 691, 104 S.Ct. at 2066. Having extensively reviewed the record, we are in agreement with the district court when it stated:

“In these proceedings, Estes’ present counsel was quite successful in making the scientific evidence in the case appear inconsequential except insofar as such evidence established that a rape was committed by someone. The same evidence at the trial to this court appeared to be of little moment, except the act of rape, even though it was elaborately presented. To the court, the scientific evidence is of little consequence in establishing either the guilt or innocence of Estes. The court agrees with attorney Schoenhut that Estes’ conviction occurred mainly because of the testimony of Julie Somerton which was corroborated substantially by other evidence.”

A defendant in a criminal proceeding is entitled to a fair trial, not a perfect one. Bruton v. United States, 391 U.S. 123, 125, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968). “[G]iven the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and ... the Constitution does not guarantee such a trial.” United States v. Hasting, 461 U.S. 499, 508-09, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983). Accord United States v. Lane, — U.S.-, 106 S.Ct. 725, 730, 88 L.Ed.2d 814 (1986).

By the same token, a defendant in a criminal proceeding is entitled to reasonably effective assistance of counsel, not perfect representation. The trial court found, and the evidence amply supports his conclusion, that Estes’ conviction resulted from the credibility of the testimony of Julie Somerton and the other corroborating evidence, and the incredibility of the testimony of the defendant Estes. That conclusion is strongly supported by the record in this matter and, accordingly, we find no merit in Estes’ argument that he was denied effective assistance of counsel.

II

Estes also finds error in the district court’s summary dismissal of many of the issues raised in his petition for post conviction relief. Specifically, Estes contends that factual disputes existed with regard to a speedy trial issue, a prosecutorial misconduct issue, and a missing evidence issue, and that an evidentiary hearing on these issues was necessary.³

Under the Idaho Uniform Post Conviction Procedures Act, a court is not required to grant the defendant a full evidentiary hearing if the allegations contained in the petition do not entitle the applicant to relief. I.C. § 19-4906. The petitioner for post conviction relief has the burden of proving by a preponderance of the evidence the allegations which he contends entitle him to relief. Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969). Having fully reviewed the record, we find no error in the trial court’s summary dismissal of these allegations of error.

A.

In regard to Estes’ speedy trial argument, the trial court found, “Estes’ contention that he has been denied his right to speedy trial has no merit insomuch as Estes waived his right to speedy trial on September 27,1979.” Our complete review of the record does indeed indicate that Estes did waive his right to a speedy trial on that date in 1979. Furthermore, from shortly after his arrest in May, 1979, until after conviction the second time in February of 1983, Estes was free on bond. Accordingly, the district court correctly concluded that an evidentiary hearing was not necessary to resolve the speedy trial issue.

B.

In considering Estes’ many allegations of prosecutorial misconduct, the district court found that these allegations were largely based upon mischaracterization of the evidence presented at trial. After carefully evaluating each of the alleged instances of prosecutorial misconduct, the district court concluded that none of these alleged instances of misconduct prejudiced Estes. The district court’s opinion reveals a careful examination of the trial transcript of the second trial, as well as of the available transcript from the first trial. Since any instance of prosecutorial misconduct would be revealed by a careful study of these trial transcripts, we cannot agree with Estes that this allegation of error necessitated an evidentiary hearing.

C.

Finally, the district court concluded that Estes was not prejudiced by the state’s inability to produce certain pieces of evidence at the second trial. Specifically, these pieces of evidence were certain photographs, some of which were part of a photographic lineup used by Julie Somerton to identify Estes, and a belt which Estes was wearing at the time of his arrest.

According to Estes, had the photos been available to Estes at his second trial, he could have shown that the photographic lineup was unreasonably suggestive. In order to show that the lineup was unreasonably suggestive, presumably to ultimately force suppression of the in-court identification as well, Estes would have had to show that, under the totality of the circumstances, the lineup was so suggestive as to show a substantial likelihood of misidentification. State v. Hoisington, 104 Idaho 153, 161, 657 P.2d 17, 25 (1983). An evidentiary hearing was not necessary to enable the district court to properly conclude that Estes could not possibly meet this difficult burden. As the district court noted, at the first trial Julie Somerton’s testimony was that, when she saw the photographic lineup, she hardly glanced at the other pictures because she immediately identified Estes as her assailant, and there was no doubt in her mind as to the identification. Given Estes’ contact with Julie Somerton prior to the rape, which was corroborated, the record reflects no reason to doubt Julie Somerton’s testimony. Moreover, Estes’ conviction was as much the result of circumstantial evidence indicating that he was the assailant as it was the result of Somerton’s identification.

Nor was an evidentiary hearing required to determine whether Estes was prejudiced by the lost belt. This belt was lost at some point prior to the first trial. At the first trial, Julie Somerton described the belt worn by her assailant as a “cowboy belt.” Estes claimed that the belt which had been taken from him at his booking was a brown belt with a horseshoe buckle. Estes therefore attempted to use the discrepancy in the descriptions of the belt to show that he was not the assailant. However, assuming that there is a discrepancy between the two descriptions, as the district court noted, the belt’s, description is a relatively minor detail in Julie Somerton’s testimony. Further, Estes’ booking card indicates that the belt which was taken from Estes by the booking officer did not fit Estes’ description of his belt. An evidentiary hearing on this issue would not have settled the dispute, since the belt was, and still is, missing. All that an evidentiary hearing would have provided is an opportunity for Estes to state that he was wearing a brown belt with a horseshoe buckle, while Ms. Somerton had described the belt worn by her assailant as a “cowboy belt.” Since this evidence was available from the record, we agree with the district court that an evidentiary hearing on this issue was not necessary.

Ill

Estes also alleges that the district court erred in refusing to allow him to obtain, at public expense, an expert witness, a private investigator, and an expert criminal defense lawyer who was to review the record and appear as a witness. In State v. Olin, 103 Idaho 391, 648 P.2d 203 (1982), we discussed this issue. We stated:

“It is thus incumbent upon the trial court to inquire into the needs of the defendant and the circumstance of the case, and then make a determination of whether an adequate defense will be available to the defendant without the requested expert or investigative aid. If the answer is in the negative, then the services are necessary and must be provided by the state. Such a review necessarily involves the exercise of the sound discretion of the trial court. (Citations omitted.) Consequently, a denial of a request for expert or investigative assistance will not be disturbed absent a showing that the trial court abused its discretion by rendering a decision which is clearly erroneous and unsupported by the circumstances of the case.” 103 Idaho at 395, 648 P.2d at 207.

In this case, we cannot say that the decision to deny Estes expert or investigative assistance was an abuse of the district court’s discretion. As the record clearly reflects, the state laboratory was available for any additional scientific testing which Estes desired. Nor can we say that Estes was deprived of an adequate defense merely because he did not have a private investigator or an expert criminal law specialist at his disposal. As this somewhat voluminous record clearly reflects, Estes’ present attorney is more than competent and has quite ably represented Estes’ position in both the direct appeal and the petition for post conviction relief.

IV

Estes also alleges that the district court’s memorandum decision of February 20, 1985, which was issued after the evidentiary hearing, included findings which were directly in opposition to the uncontradicted evidence presented by the state’s experts. Specifically, he contests the district court’s conclusion that Estes was found to be a Type O secreter by the Idaho State Laboratory. Estes asserts that this was particularly important evidence since initial testing indicated that Type 0 semen was found at the scene of the rape.

Where there is competent and substantial evidence to support a decision made after an evidentiary hearing on an application for post conviction relief, that decision will not be disturbed on appeal. Lipps v. State, 94 Idaho 185, 484 P.2d 734 (1971); Holmes v. State, 104 Idaho 312, 313, 658 P.2d 983, 984 (Ct.App.1983). Here, Pam Server, forensic chemist for the state laboratory in Boise, testified that Estes has Type 0 blood. She further testified that a blood test performed on a sample of Estes’ blood indicated that Estes was a secreter. However, Server also testified that when she ran a saliva test on a small amount of Estes’ saliva there was no reflection that Estes was a secreter. When questioned about this inconsistency, she stated, “I could take a larger sample of saliva which we found there — the people that we get our training from told us that we need to take larger samples now to get better results. But consultation with somebody about possible low level secreters might be helpful.” From this, we cannot conclude that the district court was clearly erroneous when it stated that the Idaho State Laboratory found that Estes was a Type O secreter. In fact, it is clear from Ms. Server’s testimony that she found the results of the saliva test to be, at best, anomalous, since the blood test had clearly indicated that Estes was a secreter.

At best, Estes has only shown that his secreter status has not yet been conclusively determined. As we previously stated, an applicant for post conviction relief has the burden of proving, by a preponderance of the evidence, the allegations on which his petition is based. Clark v. State, 92 Idaho 827, 452 P.2d 54 (1969); Holmes v. State, supra. Estes has clearly not carried his burden of showing that he is not a secreter, as he might have done had he provided the state laboratory with a larger saliva sample before calling Server to testify on his behalf.

Estes also makes much of the fact that recent tests run on the items retained in the sex crime kit are less than conclusive on the issue as to whether or not Type 0 semen was found at the rape scene. However, Server stopped short of saying that the more recent tests, run on five-year-old samples which had been stored at room temperature, were accurate. In fact, Server repeatedly emphasized that degradation of the samples probably influenced the more recent test results. While Estes has been successful in raising some doubt as to the validity of the scientific evidence presented at trial, we cannot say that the district court erred in choosing to believe that the earlier tests were more accurate.

Lastly, we do not find Estes’ reliance on the “inconsistencies” in the scientific evidence to be particularly persuasive. As we have previously noted, and as the district court noted, Estes was convicted because of the victim’s testimony, which was corroborated, and because his own alibi was totally unbelievable.

V

Finally, we find no merit in Estes’ contention that the district court erred when it denied Estes’ motion for a new trial.

The motion, filed pursuant to Idaho Criminal Rule 34, alleged that newly discovered scientific evidence entitled him to a new trial. Here Estes argues that the scientific evidence was manipulated to convince the jury of probative value when there was no such value and that this has undermined his right to a fair trial. The question of whether the interests of justice require a new trial is directed to the sound discretion of the trial court and will not be disturbed absent an abuse of this discretion. I.C.R. 34; State v. Olin, 103 Idaho 391, 399, 648 P.2d 203, 211 (1982). In order to succeed on a motion for new trial based on newly discovered evidence, a defendant must show, inter alia, that the new evidence will probably produce an acquittal. State v. Drapeau, 97 Idaho 685, 691, 551 P.2d 972, 979 (1976). We find no abuse of the trial court’s discretion here since Estes has not shown that the “new scientific evidence” will produce an acquittal.

As discussed above, Estes was convicted because of the credibility of the testimony of the victim, which was fully corroborated by the circumstances and the testimony of Mr. Kitchen, and by the incredibility of Estes’ alibi. Estes has not met his burden of showing that he was convicted because of the scientific evidence or that the “new evidence” would have resulted in acquittal.

Affirmed.

DONALDSON, C.J., and SHEPARD, J., concur.

1 . The tape containing testimony of state’s witnesses John H. Moser, Raymond Tracy, Lawrence S. Olson, Barry W. Brightwell, Gary E. Mills, Ann Bradley and Pam Southcomb was inadvertently erased before it was transcribed. The remainder of the trial was transcribed and was available.

2 . As Justice Huntley recently stated in State v. Alanis, 109 Idaho 884, 712 P.2d 585 (1985) (Huntley, J., dissenting):

"Under the holding of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant in order to succeed with a claim of ineffective representation must show the existence of a reasonable probability, but for defense counsel’s errors, the result would have been different. This is a very difficult standard to meet." Id. at 890, n. 2, 712 P.2d at 591, n. 2.

3 . Although he did not receive an evidentiary hearing on these issues, Estes did receive an evidentiary hearing on the competency of counsel issue, which he raised in his petition for post conviction relief.