State v. Gomez

254 P.3d 47, 151 Idaho 146, 2011 Ida. App. LEXIS 15
CourtIdaho Court of Appeals
DecidedMarch 11, 2011
Docket35209
StatusPublished
Cited by10 cases

This text of 254 P.3d 47 (State v. Gomez) 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. Gomez, 254 P.3d 47, 151 Idaho 146, 2011 Ida. App. LEXIS 15 (Idaho Ct. App. 2011).

Opinions

PERRY, Judge Pro Tem.

Aristeo Gomez appeals from the judgment of conviction entered upon a jury verdict finding him guilty of lewd conduct with a minor under the age of sixteen, Idaho Code § 18-1508. He contends that the district court improperly admitted evidence relating to uncharged sexual misconduct. We affirm.

I.

FACTS AND PROCEDURAL BACKGROUND

In 2004, then fifteen-year-old V.B. was living with her mother, F.B., and her mother’s boyfriend,1 Gomez, in Gomez’s house in Burley. While V.B.’s mother was gone on vacation, V.B. awoke early one morning to Gomez touching her, over her clothes, on her breasts, buttocks, and vagina. V.B. told him to stop, and Gomez offered her one hundred dollars, as well as some clothes, to sleep with [148]*148him. V.B. told Gomez to get out of her bedroom, and Gomez gave her twenty dollars, which V.B.’s mother had told him to give her, for both her and her brother, and then left the room. V.B. locked her door and went back to sleep. V.B.’s sixteen-year-old brother was sleeping in the same bed with her, but he did not wake up. V.B. did not wake her brother to tell him what had happened, nor did she tell anyone else about the incident because it was “embarrassing.” V.B. also stated that she did not tell her mother because Gomez had previously told V.B. that her mother would not believe her, that “no one would believe [her].”

Sometime after this incident, while V.B. was alone in her bedroom talking on the phone with her boyfriend, Gomez tried to get into her bedroom. V.B. told her boyfriend not to hang up on her. When her boyfriend inquired as to why he should not hang up, she related some concerns about Gomez and told him that Gomez was toying to get into her room. V.B.’s boyfriend told her brother about the incident, and her oldest sister, E.B., also learned what had happened. In January 2006, V.B. and her sisters met together and discovered that Gomez had sexually abused each of them. They approached their mother, F.B., with the allegations, and she told them they would talk about it later. F.B. testified at trial that she did not believe them. However, V.B. and her sisters went to E.B.’s residence where they called the police and submitted written statements regarding the abuse. Gomez was arrested and subsequently charged with lewd conduct with a minor under the age of sixteen.

Prior to trial, the State filed a notice of its intent to introduce evidence of other crimes, wrongs, or acts as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident pursuant to Idaho Rule of Evidence 404(b), attaching the written statements of V.B., as well as her sisters, E.B., M.A.R.B., S.B., and M.L.B. The statements indicated that Gomez had sexually abused V.B. and her sisters. The State filed a second notice of its intent to introduce Rule 404(b) evidence, attaching the written statement of C.G., a friend of V.B., as well as related police reports. Gomez filed an objection to the State’s intent to use Rule 404(b) evidence, as well as a motion in limine to exclude such evidence from trial.

At a hearing held on Gomez’s motion, he argued that the evidence was not relevant to any issue other than character or propensity and that its prejudice outweighed its probative value. The district court denied the motion, relying upon State v. Phillips, 123 Idaho 178, 845 P.2d 1211 (1993), but admonished the State that it would not be allowed to mention any uncharged sexual misconduct unless an offer of proof was made to the court as was required in the Phillips case. While the parties and the court indicated that a hearing would be held to entertain the State’s offer of proof, the record is unclear as to whether this occurred. Each of the State’s proposed witnesses included in the notices did, however, testify at trial regarding uncharged sexual misconduct.

In addition to testifying regarding the charged conduct, V.B. also testified that Gomez had touched her on her breasts, buttocks, and vagina on previous occasions. She stated that the touching began when she was about twelve or thirteen when Gomez and her mother were living in “Paul Housing.” She testified that she would spend the night there on weekends and during the summer. V.B. stated that, on one occasion, she was taking a shower and Gomez unscrewed the doorknob and tried to get into the bathroom. She also testified that Gomez would make inappropriate comments about her vaginal area, saying it was hairy; that he would walk around in a towel or his underwear; and that he would expose himself to her when he would get out of the shower.

Each of V.B.’s full sisters also testified regarding similar incidents occurring with Gomez. V.B.’s oldest sister, E.B., testified that Gomez abused her from the time she was twelve until she moved out of the house when she was approximately eighteen years old. She testified that the first incident occurred when her mother and Gomez were living in a house in Rupert. She stated, “[Gomez] grabbed me and hugged me really tight, and he told me that he wanted to be with me.” She testified that she understood [149]*149that to mean Gomez wanted to sleep with her. She also testified that she thought Gomez offered her money, but that she did not remember how much. She stated no one saw the incident because they were upstairs, and she did not tell anyone because she was embarrassed.

E.B. testified that while staying at the house in Rupert, Gomez would touch her in the middle of the night. She stated that, on one occasion, she woke up to him next to her in bed touching her breasts. She testified that she told Gomez to get out of her bed, and he “grabbed his private part ... and kind of showed it off and walked away.” She testified that her mother was sleeping in the bed next to her and her brothers and sisters were sleeping in the bed with her, but she was sleeping on the edge. She stated that she would sleep in between her siblings so that Gomez could not get to her, but that sometimes she would still sleep on the edge. She testified that the touching continued while in Rupert and then when her mother and Gomez moved to Paul Housing. E.B. stated that while in Paul Housing, she would often wake up to Gomez touching her, both over and under her clothing, on her breasts and between her legs. E.B. also testified that Gomez walked in on her while she was taking a shower and opened the curtain. Whenever E.B. threatened to tell her mother about Gomez’s actions, he would respond, “No, you’re not going to tell her.”

Another sister, M.A.R.B., who is approximately two years younger than E.B. and approximately two and one-half years older than V.B., also testified that Gomez abused her until she moved out of the house at the age of sixteen. She testified that Gomez “always tried to touch me” and related one incident where Gomez grabbed her breasts after her mother had left the house to sell tamales. She stated that on another occasion, she was sleeping on the side of the bed next to one of her siblings and awoke to find her pants and underwear pulled down from the front, and Gomez touching her. M.A.R.B. testified that when she told Gomez not to touch her, he asked where E.B. had gone. She told him to leave her alone, and he ultimately left. She testified that on another night, she and E.B. were asleep and she woke up to Gomez touching E.B.’s breast. M.A.R.B.

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State v. Gomez
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Cite This Page — Counsel Stack

Bluebook (online)
254 P.3d 47, 151 Idaho 146, 2011 Ida. App. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gomez-idahoctapp-2011.