State v. Powell

819 P.2d 561, 120 Idaho 707, 1991 Ida. LEXIS 128

• Court: Idaho Supreme Court
• Decided: August 19, 1991
• Docket: 17510
• Status: Published

Opinions

McDEVITT, Justice.

The defendant appeals his conviction and sentence for lewd conduct with a minor, I.C. § 18-1508. The defendant assigns as error: (1) the trial court’s denial of his collateral estoppel motion; (2) the trial court’s ruling on evidentiary matters; (3) the trial court’s verdict which the defendant asserts the evidence does not substantiate; (4) the trial court’s failure to make specific findings; and (5) the imposition of a sentence which was allegedly excessive. We affirm the conviction and sentence.

The defendant’s seven-year-old daughter was the subject of a petition under the Child Protective Act (CPA). After the CPA hearing but before the magistrate had issued his decision, defendant was indicted on one count of lewd and lascivious conduct with a minor. Shortly after the indictment issued, the CPA magistrate found that the defendant had physically abused his daughter, but that the evidence concerning sexual abuse was inconclusive. The defendant moved to dismiss the indictment on the basis that the State was collaterally es-topped from prosecuting the criminal charge inasmuch as that issue had been resolved, favorably to him, in the CPA proceeding. The trial court denied the motion and set the case for trial. Trial was originally scheduled for September of 1987, but was continued because the State had failed to comply with discovery requests.

The ten-day trial was eventually held in December of 1987 and January of 1988. Against the strong advice of counsel, defendant waived his right to a jury trial. During the course of the trial, the district judge reserved a number of evidentiary questions for resolution at a later time. At the conclusion of the trial, the district judge found the defendant guilty and sentenced him to a ten-year fixed term and an additional ten-year indeterminate term. With the defendant having waived the right to a jury trial, the court became the trier of fact. The ultimate issue to be tried was the innocence or guilt of the defendant. In a criminal case tried to the court, the court is no more required to support its decision with findings than is a jury. In either event, the decision is the verdict rendered.

I. COLLATERAL ESTOPPEL

The court ruled that an estoppel did not arise from the circumstance that the very incident which gave rise to the criminal charge had earlier been the subject of a CPA proceeding.

At common law, “collateral estoppel ... may flow from a civil case to a criminal prosecution.” State v. Walker, 159 Ariz. 506, 509, 768 P.2d 668, 671 (1989). In addition, decisions of administrative agencies could be accorded preclusive effect in subsequent litigation. State v. Dupard, 93 Wash.2d 268, 609 P.2d 961 (1980); see also People v. Watt, 115 Mich.App. 172, 320 N.W.2d 333 (1982) (finding of fact by administrative law judge barred relitigation of issue in criminal proceeding).

Whether collateral estoppel precludes a criminal prosecution by reason of a civil action conclusion takes into account the following factors:

(1) Did the party “against whom the earlier decision is asserted ... ‘have a full and fair opportunity to litigate that issue in the earlier case?’ ”

(2) Was the issue which was decided in the prior litigation “identical to the one presented in the action in question?”

(3) Was the issue actually decided in the

prior litigation____

(4) “Was there a final judgment on the merits?”

(5) “Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?”

Anderson v. City of Pocatello, 112 Idaho 176, 183-84, 731 P.2d 171, 178-79 (1987) (citations omitted).

In addition to those factors, when collateral estoppel is raised as a defensive measure in criminal proceedings, an additional question must be asked and answered: Was the defendant placed in jeopardy in the prior proceeding? Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (collateral estoppel is a facet of the fifth amendment protection against double jeopardy).

Application of these factors to the case before us supports the trial court’s conclusion that, notwithstanding that the State was a party to the CPA proceedings which went to a final “judgment,”¹ the findings in the CPA hearing did not bar the criminal prosecution on the charge of lewd and lascivious conduct. However, the other requirements of Anderson were not satisfied.

Key to our decision is the question of issue identity. In CPA proceedings, the focus is on the welfare of the child; the relevant question is whether measures need to be taken to insure the child’s safety and well-being. A conclusion as to whether a particular incident of abuse took place is not essential to the determination of the child’s best interests under the CPA, and in fact it would be possible for a court to determine that a child had been abused and yet still decide not to change the child’s placement. See People v. Gates, 434 Mich. 146, 452 N.W.2d 627 (1990). By contrast, criminal proceedings focus on whether the defendant is guilty beyond a reasonable doubt of a particular charged crime or crimes. Although the evidence received in each proceeding may be very similar, the issues for which that evidence is offered as proof differ significantly. We therefore conclude that in the CPA proceeding the question of whether the defendant had sexually abused his daughter was not an “issue of ultimate fact [which had] been determined by a valid and final judgment.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970).

The focus and purpose of the two different proceedings is also germane in deciding whether the defendant was put in jeopardy during the CPA action.

Jeopardy denotes risk. In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution____ [T]he risk to which the term jeopardy refers is that traditionally associated with ‘actions intended to authorize criminal punishment to vindicate public justice.’

Breed v. Jones, 421 U.S. 519, 528-29, 95 S.Ct. 1779, 1785-86, 44 L.Ed.2d 346 (1975) (citations omitted).

Unlike a criminal prosecution, a CPA proceeding does not have the effect of placing a parent in jeopardy.

II. EVIDENTIARY RULINGS & SPECIFIC FINDINGS OF FACT & CONCLUSIONS OF LAW

The defendant asserts that the trial court made erroneous rulings on evidentiary matters, and that because the court’s guilty verdict is not based on any written findings, he is unable to mount a challenge on his appeal. The court orally rendered its verdict, saying:

But after considering and thinking and listening and based on all the statements, I must find you guilty beyond a reasonable doubt, and I am going to find you guilty beyond a reasonable doubt.

In response to a motion for findings of facts filed by the defendant, the court then adopted his oral findings, signed them, and entered them into the record.

The defendant objected to the admission of testimony from Marcus Powell, the defendant’s son, and Dawn Leffler, the defendant’s daughter, on the grounds that their testimony involved events that were too remote both in time and in place, and also on the grounds that it was irrelevant. Some of this testimony concerned sexual contact between the defendant and his daughter, Dawn, occurring as early as approximately 1975, when she was eight years old, and in places as remote as North Carolina and Illinois. The defendant also objected to the admission of the interview notes of Kim Huitt, a social worker.

The defendant filed a motion in limine to exclude this evidence, which motion was denied. During the trial, defense counsel renewed his objections to the testimony of Marcus Powell and Dawn Leffler, to which the court responded that because it was a court trial, he would allow the evidence to come in, and entertain motions to strike at the completion of the testimony. When the defendant then made a motion to strike all of the testimony, that motion was denied. As to the objection to the interview notes of the social worker, the trial judge allowed them to be marked and admitted, stating that he would only take into account what was legally admissible.

A court trial obviously differs significantly from a jury trial. However, this difference should not result in an evidentiary free-for-all. We must determine whether this evidence was properly admitted and considered by the trial judge.

This Court has held in the past that in a trial to the court, the admission of evidence is largely discretionary. In Guillara v. Department of Employment, 100 Idaho 647, 603 P.2d 981 (1979), we stated:

Although Idaho has no discernible evidentiary rules applicable in non-jury civil cases, it is clear that the rules in non-jury cases regarding admission of evidence are more liberal than in jury cases. G. Bell, Handbook of Evidence for the Idaho Lawyer 14 (1972). For example, this Court will not reverse a trial court in a non-jury case on the basis of an erroneous admission of evidence unless it appears that the opposing party was misled or surprised in a substantial part of its case, or that the trial court materially relied on the erroneously admitted evidence. Duthweiler v. Hanson, 54 Idaho 46, 28 P.2d 210 (1933). In trials before the court, it is presumed that the trial court did not consider incompetent or inadmissible evidence in making its findings. Isaacson v. Obendorf 99 Idaho 304, 581 P.2d 350 (1978); Shrum v. Wakimoto, 70 Idaho 252, 215 P.2d 991 (1950).

Guillará, 100 Idaho at 650, 603 P.2d at 984.

A similar standard has been employed in criminal cases tried to the court. In State v. Miles, 77 Wash.2d 593, 464 P.2d 723 (1970), the defendant was convicted of rape and second degree assault on two women. The Washington Supreme Court, in considering the admission of evidence, wrote:

The action was tried to the court sitting without a jury. In such instances a liberal practice in the admission of evidence is followed in this state, supported, as it is, with a presumption on appeal that the trial judge, knowing the applicable rules of evidence, will not consider matters which are inadmissible when making his findings. State v. Bell, [59 Wash.2d 338, 368 P.2d 177 (1962)], supra. And, in non-jury proceedings a new trial ordinarily will not be granted for error in the admission of evidence, if there remains substantial admissible evidence to otherwise support the trial court’s findings. State v. Ryan, 48 Wash.2d 304, 293 P.2d 399 (1956).

State v. Miles, 464 P.2d at 728. See State v. Hadd, 127 Ariz. 270, 619 P.2d 1047 (1980); State v. Eckman, 9 Wash.App. 905, 515 P.2d 837 (1973).

We, as did the Washington Supreme Court, hereby extend the rule heretofore applied only in civil cases to non-jury criminal trials. We hold that the trial court considered only that evidence that was admissible in making its findings and conclusions, and that there was no error in the admission of evidence.

III. THE SENTENCE

The imposition of a particular sentence is within the discretion of the trial court. State v. Arambula, 97 Idaho 627, 550 P.2d 130 (1976); I.C.R. 35. The decision of the trial court will not be disturbed on appeal without a showing of an abuse of discretion:

‘It is well established that the sentence to be imposed in any particular matter is within the discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion appears. A sentence that is within the limits prescribed by statute ordinarily will not be considered an abuse of discretion.’ State v. Seifart, 100 Idaho 321, 322, 597 P.2d 44, 45 (1979). ‘Where a sentence is within the statutory limits, an appellant has the burden of showing a clear abuse of discretion on the part of the court imposing the sentence.’ State v. Chapa, 98 Idaho 54, 558 P.2d 83 (1976). This sentence was within the statutory limits.

State v. Cotton, 100 Idaho 573, 577-78, 602 P.2d 71, 75-76 (1979). See also State v. Delin, 102 Idaho 151, 627 P.2d 330 (1981).

A review of the record does not persuade us of an abuse of discretion in the sentencing proceedings or in the sentence imposed. We affirm.

BAKES, C.J., and BOYLE, J., concur.

1 . Although the court retains jurisdiction under the CPA until the child reaches the age of eighteen, I.C. § 16-1604, a final decision about the placement of the child is made after a CPA hearing is held. That placement cannot be changed without additional proceedings under the CPA.