State v. Parker

730 P.2d 921, 112 Idaho 1, 1986 Ida. LEXIS 537
CourtIdaho Supreme Court
DecidedNovember 19, 1986
Docket15588
StatusPublished
Cited by23 cases

This text of 730 P.2d 921 (State v. Parker) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Parker, 730 P.2d 921, 112 Idaho 1, 1986 Ida. LEXIS 537 (Idaho 1986).

Opinions

HUNTLEY, Justice.

A jury convicted Randy Alan Parker of forcible rape. On appeal, Parker argues the district court erred in admitting the prosecutrix’s taped statement made between two and three hours after the alleged rape. Parker further argues the district court erred in barring evidence of his character for the trait of sexual non-ag[2]*2gression towards women and the victim’s admission that she left home the day before the alleged rape because she was pregnant.

The case arises from the following facts: The fourteen-year-old victim was walking alone on a road near Lake Lowell one evening at about midnight. A car driven by Parker approached her. She did not know him. There was a woman passenger in the car named Peggy Bauder, a friend of Parker’s and unknown to the victim. Parker asked the victim if she wanted a ride and she eventually got in the car. Bauder testified that when asked where she was going, the victim said, “I don’t know.”

In Marsing, Idaho, Parker stopped the car to make a phone call which lasted just a few minutes. The victim remained in the car, though she admitted at trial she could have gotten out. The three then drove to a house “far out in the country” and went inside. There, the victim told Bauder that she had left home that day because she was pregnant. Bauder then went to bed leaving the victim alone in the front room with Parker. At trial the court struck Bauder’s testimony as to the victim’s admission of her pregnancy on grounds that I.C. § 18-6105 (1984), the rape-shield law, made inadmissible any references to the victim’s prior sexual conduct.

The victim, while in the house to which Parker had taken her, picked up the phone and called her home. This occurred between five o’clock and five-thirty in the morning. Her mother answered. When the victim said “Mom,” Parker grabbed her arm, forcing the receiver to the hook. Parker then made advances towards her, which culminated in sexual intercourse. Shortly thereafter, at about six-thirty in the morning, the victim went to the residence of the Durrant family, which was near the house to which Parker had driven her. At the Durrant’s, she called her mother and asked that the family pick her up and to bring the police. The victim’s father called Brent Mabbott, an Idaho Fish and Game officer and a cousin of the victim’s, and asked him to meet the family at the Durrant residence.

At the Durrant’s, within three hours after the alleged rape, Mabbott tape recorded a statement of the victim in which she contended she had been raped. The trial court allowed the tape to be played to the jury. Later, when the defense presented its case, it offered as character evidence the testimony of Joseph Shaw, to the effect that Parker was not violent and, specifically, was not sexually aggressive towards women. The court denied admission of this evidence on grounds that the evidence of rape indicated that while Parker used his weight to hold the victim down, he did not use enough violence to raise an inference that he had a trait for violence which would justify admitting rebuttal character evidence of Parker’s reputation for sexual non-aggression towards women. The jury found Parker guilty of forcible rape, declined to find him guilty of statutory rape, and found him not guilty of kidnapping.

I.

The first issue is whether the district court erred in denying the admission of character evidence of Parker’s trait for sexual non-aggression towards women. To properly review a challenged denial of evidence, this court must know exactly what evidence the lower court denied. This requires that an offer of proof be made at trial. Such an offer must include evidence of all the specific facts which the proffered testimony tends to establish, rather than mere “argumentative conclusions.” The Boise Association of Credit Men, Ltd. v. United States Fire Insurance Co., 44 Idaho 249, 260, 256 P. 523, 526 (1927). In Credit Men, the offer of proof asserted a Mr. Smith had committed several acts of arson as part of a continuing scheme to collect insurance money. The offer included evidence of his motive to commit arson. However, the trial court excluded the evidence, and this court affirmed, on grounds the offer of proof included no evidence that the previous fires were set, or that Smith [3]*3could have set them. Credit Men, 44 Idaho at 260, 256 P. at 526.

In the instant case, Parker’s counsel called a reputation witness. The prosecution objected. In the ensuing colloquy, Parker’s counsel stated in general terms that she wanted to call some witnesses who knew Parker socially and in business, who would testify that Parker had a reputation for being sexually non-aggressive towards women. At no point did Parker’s counsel state for the court and the record the specific reputation testimony she intended to elicit, or the foundational testimony that would tend to establish all the facts requisite to the admission of reputation evidence. For example, counsel did not state explicitly the extent to which the witnesses were familiar with the circles in which Parker moved, sufficient for the court to rule on the adequacy of a foundation for reputation evidence. Nor did counsel state explicitly whether the character witnesses based their perception of Parker’s reputation either upon the affirmative statements of others that Parker did not behave in a sexually aggressive manner toward women, or upon a lack of statements indicating Parker behaved in a sexually aggressive manner towards women.1 For these reasons, there is no proper offer of proof preserved for appeal. As stated in Credit Men:

An offer cannot be made in general terms, but must be so made as to give the court an opportunity to rule on the specific testimony, and must embrace all the facts showing the admissibility of the evidence, and must be of facts, and not of conclusions. Credit Men, 44 Idaho at 261, 256 P. at 256.

The inadequacy of Parker’s offer of proof prevents this court from determining that the district court erroneously excluded reputation evidence of Parker’s lack of a trait for sexual aggression towards women. On this issue we affirm the trial court.

II.

We turn to the issue of whether the district court erred in admitting the victim’s taped statement made to an Idaho Fish and Game officer two to three hours after the alleged rape. The prosecution offered the out-of-court statement to prove the truth of the matter asserted — that Randy Parker had raped the victim. The statement was, therefore, hearsay. Isaacson v. Obendorf, 99 Idaho 304, 309, 581 P.2d 350, 355 (1978).

The prosecution argues the district court properly admitted the statement under the excited utterance exception to the rule [4]*4against the admission of hearsay. That exception has two requirements. “First, there must be an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of an observer. Second, the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought.” E. Cleary, McCormick on Evidence, § 297 (3d ed. 1984). Whether the taped statement met this test lay within the district court’s exercise of sound discretion. We must affirm the admission of the evidence unless the court abused its discretion. State v. Randolph, 99 Ariz. 253,

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Cite This Page — Counsel Stack

Bluebook (online)
730 P.2d 921, 112 Idaho 1, 1986 Ida. LEXIS 537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-parker-idaho-1986.