State v. Gutierrez

141 P.3d 1158, 143 Idaho 289, 2006 Ida. App. LEXIS 59
CourtIdaho Court of Appeals
DecidedJune 7, 2006
DocketNo. 31582
StatusPublished
Cited by4 cases

This text of 141 P.3d 1158 (State v. Gutierrez) 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. Gutierrez, 141 P.3d 1158, 143 Idaho 289, 2006 Ida. App. LEXIS 59 (Idaho Ct. App. 2006).

Opinion

PERRY, Chief Judge.

Miguel Gutierrez appeals from his judgment of conviction for rape. Specifically, Gutierrez challenges the district court’s allowance of a question posed by the jury to be admitted and answered at trial and the denial of his motion for a mistrial made during the prosecutor’s rebuttal closing argument. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

The victim in this ease is a nineteen-year-old woman. During an evening walk, the victim met Gutierrez while he was standing at a pay phone outside the motel where he [292]*292was staying. After this introduction, the victim briefly met on a social basis with Gutierrez three times over the next two days. On their third meeting, at Gutierrez’s motel room, Gutierrez made sexual advances toward the victim. According to the victim she refused his advances, and he then forcibly raped her. The victim reported the incident to the police, and Gutierrez was arrested and charged with one count of rape. I.C. § 18-6101(3). A jury found Gutierrez guilty after a trial. The district court sentenced Gutierrez to a unified term of ten years, with a minimum period of confinement of five years. Gutierrez appeals.

II.

ANALYSIS

A. Jury Question

At trial, the jury submitted a question for a witness, the registered nurse (RN) who performed the rape kit examination on the victim. The question was whether it was unusual for rape victims to have no external physical injuries. Gutierrez objected to the question on the grounds of relevancy, foundation, and unfair prejudice. The district court overruled the objection and allowed the RN to answer the question. On appeal, Gutierrez asserts the district court erred in allowing the question. Gutierrez argues there was insufficient foundation establishing the RN had personal knowledge, as required by Idaho Rule of Evidence 6021, as to whether the alleged victims she previously examined had actually been raped. As a result, Gutierrez contends the RN did not have personal knowledge of whether it was unusual for victims of rape to not have external injuries. The state responds that Gutierrez did not object on the grounds of lack of personal knowledge under Rule 602 and, therefore, has not preserved that specific objection for appeal. The state also asserts that, even if Gutierrez had made such an objection, the testimony’s admission was not error.

Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). For an objection to be preserved for appellate review, either the specific ground for the objection must be clearly stated or the basis of the objection must be apparent from the context. State v. Sheahan, 139 Idaho 267, 277, 77 P.3d 956, 966 (2003). We conclude that Gutierrez’s stated objection to lack of foundation was broad enough to encompass Rule 602 and, therefore, we consider the merits of the issue raised.

The decision whether to admit evidence at trial is generally within the province of the trial court. A trial court’s determination that evidence is supported by a proper foundation is reviewed for an abuse of discretion. State v. Gilpin, 132 Idaho 643, 646, 977 P.2d 905, 908 (Ct.App.1999). Therefore, a trial court’s determination as to the admission of evidence at trial will only be reversed where there has been an abuse of that discretion. State v. Zimmerman, 121 Idaho 971, 973-74, 829 P.2d 861, 863-64 (1992). When a trial court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

Idaho courts have not yet squarely addressed the standard necessary to prove the sufficiency of a witness’ personal knowledge required for his or her testimony to be admissible as to a particular question. See I.R.E. 602. However, Rule 602 analysis of the United States Ninth Circuit Court of [293]*293Appeals is instructive in this matter.2 Generally, testimony meets the requirements of Rule 602, and should be admitted by the court, if the jury or other trier of fact could reasonably find that that the witness perceived the event. See United States v. Owens-El, 889 F.2d 913, 915 (9th Cir.1989). The role of the court in assessing the offer of proof, then, is not to determine if the witness actually perceived the event, but whether the trier of fact could reasonably believe the witness perceived it. Id. This Court also notes that an objection to personal knowledge should be sustained if the testimony is based upon conjecture, hearsay, or any source of information other than that which the witness did actually perceive. See State v. Hall, 111 Idaho 827, 832, 727 P.2d 1255, 1260 (Ct.App.1986); see also John W. Strong, McCormick on Evidence § 10 (5th ed.1999).

Here, previous testimony by the RN had established her medical training and experience. After Gutierrez objected to the jury’s question, outside its presence, the district court allowed both counsel to question the RN regarding her experience assisting in or conducting rape kit examinations upon patients claiming they had been raped. The record demonstrates that, through questioning, the state established the RN had been trained to perform rape kits and had performed or assisted in many rape examinations. During that experience, the RN had witnessed outward physical trauma on only two patients who had a rape examination performed upon them. The district court was satisfied with the offer of proof and allowed the question. When asked the question in the presence of the jury, the RN answered that it was not unusual for a rape victim to not have external physical injuries.

The question called for an opinion regarding all rape victims generally. No foundation was laid establishing that the RN was qualified to opine on the typical medical condition of all rape victims or what type of outward physical trauma was or was not common in rape victims in general. In addition, no evidence established that any of the referred-to patients had actually been raped. As a re-suit, no evidence was presented that would allow a jury to reasonably believe the RN could testify about any personally perceived knowledge of actual rape victims as required by Rule 602. We determine the question was over-broad as phrased, and the offer of proof was insufficient to establish the RN had the personal knowledge to answer the question as asked. Therefore, the district court erred in allowing the question.

Error is not reversible unless it is prejudicial. State v. Stoddard,

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Bluebook (online)
141 P.3d 1158, 143 Idaho 289, 2006 Ida. App. LEXIS 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gutierrez-idahoctapp-2006.