State v. Frederick

882 P.2d 453, 126 Idaho 286, 1994 Ida. App. LEXIS 119
CourtIdaho Court of Appeals
DecidedSeptember 23, 1994
DocketNo. 20202
StatusPublished
Cited by2 cases

This text of 882 P.2d 453 (State v. Frederick) 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. Frederick, 882 P.2d 453, 126 Idaho 286, 1994 Ida. App. LEXIS 119 (Idaho Ct. App. 1994).

Opinion

PERRY, Judge.

Jeffery Frederick was found guilty by a jury of lewd conduct with a minor under sixteen, I.C. § 18-1508, and was sentenced to a unified term of fifteen years, with a minimum period of five years’ incarceration. Frederick appeals from the judgment of conviction, alleging that “other crimes” evidence was improperly admitted. Frederick also raises an ineffective assistance of counsel claim, asserting that his counsel’s failure to object to hearsay statements denied him a fair trial. For the reasons stated below, we affirm the judgment of conviction.

At trial, the state called three witnesses, including the victim, A.W., who was seven years old at the time of the alleged offense, AW.’s mother and a Cascade City police officer who had investigated the case. A.W. testified that Frederick had touched her between her legs, sometimes with her pants on and sometimes with them off, and that he had her touch and rub his genitals. During the direct examination by the state, A.W.’s mother testified that Frederick was living with her and her children at the time of the alleged misconduct, but he had moved out of the house by the time her daughter revealed Frederick’s illicit conduct toward her.

[288]*288In response to the prosecutor’s question whether she continued to have a relationship with Frederick after he moved out of the house, A.W.’s mother testified:

WITNESS: Yes, I did.
PROSECUTOR: For how long?
WITNESS: About a month after — after it happened, he got thrown in jail. And so I continued seeing him and talking to him on a regular basis until about a year and a half ago.
PROSECUTOR: What happened about a year and a half ago?
WITNESS: I was — I was getting counseling, and Jeff was coming up for parole in May, and I was having a hard time. DEFENSE: Objection, Your Honor. I’d like to—
THE COURT: Well, the question has been asked, the question has been answered. It’s a little late to object. If you’re going to object, object when the question is made.
WITNESS: I was having a—
PROSECUTOR: And you were in counseling?
WITNESS: Yes. I was in counseling—
THE COURT: All right. The question was just were you in counseling, and the answer is yes. Please just answer the question that’s asked. Don’t elaborate.

I.

Frederick asserts as his first issue on appeal that the district court erred in admitting evidence of Frederick’s criminal history, over objection by defense counsel. The evidence in question is the unexpected disclosure by AW.’s mother that Frederick “was coming up for parole in May.” He argues that the reference to his parole constituted evidence of other crimes, which is generally inadmissible to prove the character of a person or his propensity to commit crime. Therefore, he contends that the district court abused its discretion when it failed to sustain his objection to testimony which he claims was irrelevant to prove the crime and was prejudicial to his case.

When considering a trial court’s admission of evidence of prior misconduct, we exercise free review of the trial judge’s admissibility determination under I.R.E. 404(b). However, when reviewing the determination that the probative value of the evidence is not outweighed by unfair prejudice — the second step of the analysis — we use an abuse of discretion standard. State v. Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 (Ct.App.1993), cert. denied, Atkinson v. Idaho, — U.S.-, 114 S.Ct. 1659, 128 L.Ed.2d 376 (1994).

In support of his argument, Frederick cites authority wherein this Court reviewed the impact of unexpected or volunteered testimony which alerted the jury to the defendant’s prior criminal history. In each case, we concluded that the unexpected or volunteered testimony may have contributed to the verdict and remanded for a new trial. State v. Shepherd, 124 Idaho 54, 855 P.2d 891 (Ct.App.1993); State v. Guinn, 114 Idaho 30, 752 P.2d 632 (Ct.App.1988); State v. Simonson, 112 Idaho 451, 732 P.2d 689 (Ct.App.1987). The analysis undertaken in each of these cases, however, was directed to the question of whether the event which precipitated the defense’s motion for mistrial represented reversible error when viewed in the context of the full record. See State v. Urquhart, 105 Idaho 92, 665 P.2d 1102 (Ct.App.1983). Frederick did not request any relief from the district court in the form of a motion to strike, a motion for mistrial or a curative instruction to the jury. Because Frederick made no motion for mistrial, these cases are inapposite.

Our review of the transcript of the trial in Frederick’s case discloses that AW.’s mother blurted out the reference to Frederick’s prior felony on direct examination during the state’s case in chief. The testimony was not solicited by the prosecutor’s questioning nor introduced for the improper purpose of showing character evidence, or for any other admissible purpose. The defense’s objection came after the witness had answered, and the defense did not thereafter .make a motion to strike or a motion for mistrial. Finally, the defense had the benefit of an instruction given by the Court at the [289]*289conclusion of the trial limiting the use and purpose of the testimony.

We can only speculate why defense counsel did not move the district court to strike the objectionable portion of AW.’s mother’s testimony which revealed Frederick’s connection with other crimes. It is not our function on appeal to look for error and order a mistrial. Error will not be presumed upon appeal but must be affirmatively shown by an appellant and, with limited exceptions, error at trial must be properly objected to and preserved to merit review. State v. Thomas, 94 Idaho 430, 489 P.2d 1310 (1971). Based on our review of the entire trial record before this Court, we conclude that the admission of AW.’s mother’s unexpected mention of Frederick’s parole was not reversible error on the part of the district court.

II.

Frederick next claims that he is entitled to reversal of his conviction due to the ineffective assistance of his trial counsel. He asserts that he was denied a fair trial by his counsel’s failure to object to the hearsay testimony of A.W.’s mother, relating her initial conversation with her daughter about the incident which resulted in the lewd conduct charge. Frederick asserts that had the hearsay testimony not been put before the jury, there is a reasonable probability that the jury would not have convicted him solely on the basis of the victim’s testimony.

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Cite This Page — Counsel Stack

Bluebook (online)
882 P.2d 453, 126 Idaho 286, 1994 Ida. App. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-frederick-idahoctapp-1994.