State v. Aspeytia

936 P.2d 210, 130 Idaho 12, 1997 Ida. App. LEXIS 27
CourtIdaho Court of Appeals
DecidedFebruary 27, 1997
Docket21938
StatusPublished
Cited by17 cases

This text of 936 P.2d 210 (State v. Aspeytia) is published on Counsel Stack Legal Research, covering Idaho Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Aspeytia, 936 P.2d 210, 130 Idaho 12, 1997 Ida. App. LEXIS 27 (Idaho Ct. App. 1997).

Opinion

LANSING, Judge.

Raul Aspeytia is appealing from his judgment of conviction and sentence entered after a jury found him guilty of lewd conduct with a minor child under sixteen in violation of I.C. § 18-1508. After considering Aspey-tia’s claims of error, we affirm.

I.

FACTS

The events leading to Aspeytia’s prosecution began in 1993 when his six-year-old stepdaughter, J.M., disclosed that Aspeytia had touched her in a sexual manner. J.M. testified at trial that while she was at home alone with Aspeytia, he removed her clothing and touched her with his penis in her mouth, between her legs and in her buttocks. J.M. also reported that Aspeytia showed her a sexually explicit movie. Later that same evening, J.M. disclosed these events to her *14 brothers, and one of the brothers informed J.M.’s mother the next day.

The day after the alleged molestation J.M. was examined by Dr. Kevin Kraal, an emergency room physician. The following day an examination was also conducted by Dr. Barton Adrian, a pediatrician. Both physicians testified at trial that, based upon their physical examinations and interviews of J.M., they were of the opinion that she had been sexually molested.

On appeal, Aspeytia asserts that the conviction should be vacated because the evidence against Mm is insufficient to support the jury’s verdict, because there were errors in the admission of testimony of physicians who examined the victim and errors in the sentencing proceeding, and because he received ineffective assistance of counsel.

II.

ANALYSIS

A. Physicians’ Testimony

Aspeytia first contends that the trial court erred in allowing the testimony of Dr. Kraal and Dr. Adrian that, in their opinions, J.M. had been sexually molested. Aspeytia contends that Dr. Kraal was unqualified to make such an assessment and that, as to both physicians, their opimons were not based upon physical evidence and therefore amounted to nothing more than an impermissible vouching for the credibility of the victim.

Aspeytia’s counsel did not object to tMs testimony at trial. The State therefore argues that the absence of any objection to the evidence in the trial court precludes consideration of tMs issue on appeal. However, Aspeytia contends that tMs Court may review admission of the testimony for “fundamental error” as the Court did under similar circumstances in State v. Johnson, 119 Idaho 852, 810 P.2d 1138 (Ct.App.1991), and as authorized by I.R.E. 103(d). 1 Fundamental error has been defined as such error as goes to the foundation or basis of a defendant’s rights or goes to the foundation of the case or takes from the defendant a right wMch was essential to Ms defense and which no court could or ought to permit Mm to waive. State v. McAway, 127 Idaho 54, 60, 896 P.2d 962, 968 (1995); State v. Sarabia, 125 Idaho 815, 818, 875 P.2d 227, 230 (1994).

It must be acknowledged that there is a lack of clarity in the case law of this state as to whether the admission of evidence without objection at trial may ever be reviewed for fundamental error on appeal. Compare State v. Walters, 120 Idaho 46, 59, 813 P.2d 857, 870 (1991) (Boyle, J., concurring) 2 (holding that admission, without objection, of fire investigator’s opimon, that the defendant was the person who started the fire was fundamental error); and Johnson, supra, (holding that physician’s opinion, elicited without objection, that the victim had been sexually molested was fundamental error requiring reversal of the conviction), with McAway, 127 Idaho at 60-61, 896 P.2d at 968-69 (refusing to consider challenge to the admissibility of a videotape that was raised for the first time on appeal, the Court stating that an abuse of discretion in admitting evidence is a trial error and “does not go to the foundation of the case or take from the defendant a right wMch was essential to Ms defense”); *15 State v. Higgins, 122 Idaho 590, 596, 836 P.2d 536, 542 (1992) (declining to consider an issue not presented to the trial court concerning expert testimony about the profile of a sex offender because “any error in admitting the testimony was not fundamental error, because it dealt with the admission of evidence and did not go to the foundation of the case or take from Higgins a right that was essential to his defense.”); and State v. Bingham, 116 Idaho 415, 423, 776 P.2d 424, 432 (1989) (holding that error in admitting expert opinion would not constitute fundamental error). However, in this case it is unnecessary that we determine whether the fundamental error doctrine may be applied to evidentiary issues, for we must, in any event, consider the admissibility of the testimony of Dr. Kraal and Dr. Adrian pursuant to another issue raised by Aspeytia on appeal, his claim of ineffective assistance of counsel.

Aspeytia argues that his attorney’s failure to object to this testimony during trial constitutes ineffective assistance of counsel and requires that Aspeytia be afforded a new trial. We generally decline to consider claims of ineffective assistance of counsel on a direct appeal because they are more appropriately brought through a post-conviction relief action where an evidentiary record pertinent to the claims can be developed. See State v. Mitchell, 124 Idaho 374, 376, 859 P.2d 972, 974 (Ct.App.1993); State v. Munoz, 118 Idaho 742, 745-46, 800 P.2d 138, 141-42 (Ct.App.1990); State v. Darbin, 109 Idaho 516, 523, 708 P.2d 921, 928 (Ct.App.1985). However, because Aspeytia’s claim of ineffective assistance is based on counsel’s omission to make objections during the trial, the transcript of the trial itself provides a sufficient record to permit our review, and we will therefore consider the claim. See State v. Pugsley, 128 Idaho 168, 174, 911 P.2d 761, 767 (Ct.App.1995); State v. Frederick, 126 Idaho 286, 289, 882 P.2d 453, 456 (Ct.App.1994).

To prevail on a claim of ineffective assistance of counsel the appellant must show that counsel’s representation was deficient and that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Roles, 122 Idaho 138, 144, 832 P.2d 311, 317 (Ct.App.1992). To establish a deficiency, the applicant must demonstrate that the attorney’s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064-65; Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988).

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Bluebook (online)
936 P.2d 210, 130 Idaho 12, 1997 Ida. App. LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-aspeytia-idahoctapp-1997.