State of Idaho v. Harold E. Grist, Jr. Lewd conduct with a minor under sixteen
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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 33652
STATE OF IDAHO,
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Plaintiff-Respondent,
v.
HAROLD E. GRIST, JR.,
Defendant-Appellant.
Boise, June 2008 Term
2009 Opinion No. 14
Filed: January 29, 2009
Stephen Kenyon, Clerk
Appeal from the District Court of the Second Judicial District of the State of
Idaho, Nez Perce County. Honorable Jeff. M. Brudie, District Judge.
The judgment of conviction is vacated and the case is remanded for further
proceedings and a new trial.
Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Justin
Curtis argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Daniel
Bower argued.
_______________________________________________
HORTON, Justice
This appeal arises from Harold Grist’s conviction for seven counts of lewd conduct with
a minor under the age of sixteen, two counts of sexual battery of a minor, and one count of
sexual abuse of a child under the age of sixteen. Grist argues that the district court improperly
admitted evidence relating to prior uncharged sexual misconduct. We vacate and remand for
further proceedings and a new trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Grist of sexually abusing his live-in girlfriend’s daughter, J.M.O., over a
period of eight years. The abuse started shortly after Grist and J.M.O.’s mother moved in
together when J.M.O. was ten years old. Grist would have J.M.O. sit on his lap while he rubbed
his pelvis against her. The abuse progressed as J.M.O. grew older. Eventually, Grist started to
touch J.M.O.’s breasts, buttocks, and vagina. Grist would also force J.M.O. to undress for him.
The abuse stopped when J.M.O. moved out of the house after she graduated from high school.
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Prior to trial, the State filed a motion pursuant to I.R.E. 404(b) to admit evidence of prior
uncharged acts of sexual misconduct as evidence of a common scheme or plan. The evidence
indicated that Grist previously sexually abused his ex-wife’s daughter, A.W. The district court
permitted A.W. to testify, finding the evidence to be relevant to Grist’s “alleged conduct.” A.W.
testified that she lived with Grist from ages eight until thirteen and that Grist would ask her to sit
on his lap or lay and cuddle with him. During this time, Grist would touch A.W.’s breasts and
buttocks. The jury convicted Grist of all ten charged counts relating to his conduct with J.M.O.
Grist timely appealed.
II. STANDARD OF REVIEW
We review a trial court’s decision to admit evidence for abuse of discretion. State v.
Field, 144 Idaho 559, 564, 165 P.3d 273, 278 (2007) (citing State v. Robinett, 141 Idaho 110,
112, 106 P.3d 436, 438 (2005)). In this review, we examine whether: (1) the trial court correctly
perceived the issue as discretionary; (2) the trial court acted within the outer bounds of its
discretion and with applicable legal standards; and (3) the trial court reached its decision through
an exercise of reason. Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803
P.2d 993, 1000 (1991) (citing State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989)).
III. ANALYSIS
Grist asks this Court to overturn State v. Moore, 120 Idaho 743, 819 P.2d 1143 (1991),
and State v. Tolman, 121 Idaho 899, 828 P.2d 1304 (1992), which permit a trial court to admit
evidence of uncharged sexual misconduct in child sex crime cases, pursuant to Idaho Rule of
Evidence 404(b). Grist argues that Idaho courts have treated the admission of evidence pursuant
to I.R.E. 404(b) in child sex crime prosecutions differently than other cases under Rule 404(b).
Grist argues that the admission of evidence of uncharged sexual misconduct by a defendant has
evolved into a blanket exception that turns on whether the case involves allegations of sexual
misconduct with a child. Grist asks this Court to hold that the admissibility of evidence pursuant
to I.R.E. 404(b) in child sex crime cases is subject to the same analysis under I.R.E. 404(b) as
other cases.
We decline to overrule Moore and Tolman in their entirety. However, as these decisions
have been interpreted as creating an exception in child sex cases to the prohibition of character
evidence, we find it necessary to revisit a theoretical underpinning for the introduction of
uncharged misconduct in cases involving the sexual abuse and exploitation of children. We
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further clarify that the admission of I.R.E. 404(b) evidence in a child sex case is subject to the
same analysis as the admission of such evidence in any other case. Any decision from this Court
or the Court of Appeals that suggests that evidence offered in a case involving an allegation of
sexual misconduct with a child should be treated differently than any other type of case is no
longer controlling authority in Idaho’s courts.
Grist is not the first person to point out that Idaho courts appear to distinguish child sex
crime cases from other cases for purposes of I.R.E. 404(b). Professor Lewis notes the following
in his treatise on trial practice in Idaho:
[I]n sex crime prosecutions, particularly those involving minors, the courts have
used a variety of rationales to justify the admission of evidence of a defendant’s
uncharged deviant sexual misconduct, including admission on the issue of
credibility, to corroborate the victim’s testimony, to show plan or intent, and on
the issue of identity. Indeed, the evidence has been held to have been properly
admitted so often that it seems to constitute a special exception to the character
evidence prohibition.
D. CRAIG LEWIS, IDAHO TRIAL HANDBOOK 2D ED., § 13:1 (2005) (emphasis added). Although
this Court has not expressly stated that there is a distinction between child sex crime cases and
other cases for purposes of I.R.E. 404(b), 1 the Court of Appeals has found that our decisions in
Moore and Tolman create such a distinction. In State v. Wood, 126 Idaho 241, 880 P.2d 771 (Ct.
App. 1994), the Court of Appeals stated “we understand our Supreme Court's rulings in Moore
and Tolman to be limited in their application to sexual abuse cases where other similar incidents
of sexual misconduct by the defendant with the same or similar victims tends to corroborate a
child victim’s version of the charged incident.” Id. at 247, 880 P.2d at 777.
A. I.R.E. 404(b) admissibility standard
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person to show action in conformity therewith. I.R.E. 404(b); Field, 144 Idaho at 569, 165 P.3d
at 283. This rule has its source in the common law. The common law rule was that “the doing
1
This Court acknowledged the apparently discrepant treatment of such cases in Field:
In sex crime prosecutions involving minors, the admission of uncharged deviant sexual
misconduct has in many cases been “difficult to square . . . with the character evidence
prohibition.” D. Craig Lewis, Idaho Trial Handbook, § 13.9 (1995). The explanation may “be
found in the unstated belief that sexual deviancy is a character trait of especially powerful
probative value for predicting a defendant’s behavior, and that relaxation of the propensity
evidence ban is warranted in these cases.” Id.
144 Idaho at 569-70, 165 P.3d at 283-84.
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of a criminal act, not part of the issue, is not admissible as evidence of the doing of the criminal
act charged.” See WIGMORE, CODE OF EVIDENCE, 3D ED., p. 81; see also, U.S. v. Old Chief, 519
U.S. 172, 181-82 (1997) (noting that Federal Rule of Evidence 404(b) reflects the common
law). 2
The policy underlying the common law rule was the protection of the criminal defendant.
See WRIGHT & GRAHAM, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE, § 5239, pp. 436-439.
“The prejudicial effect of [character evidence] is that it induces the jury to believe the accused is
more likely to have committed the crime on trial because he is a man of criminal character.”
State v. Wrenn, 99 Idaho 506, 510, 584 P.2d 1231, 1235 (1978). Character evidence, therefore,
takes the jury away from their primary consideration of the guilt or innocence of the particular
crime on trial. Id. The drafters of I.R.E. 404(b) were careful to guard against the admission of
evidence that would unduly prejudice the defendant, while still allowing the prosecution to
present probative evidence.
Admissibility of evidence of other crimes, wrongs, or acts when offered for a permitted
purpose is subject to a two-tiered analysis. First, the trial court must determine whether there is
sufficient evidence to establish the other crime or wrong as fact. M. CLARK, REPORT
OF THE
IDAHO STATE BAR EVIDENCE COMMITTEE, C 404, p. 4 (4th Supp. 1985) (citing U.S. v. Beechum,
582 F.2d 898 (5th Cir. 1978) (en banc), cert denied, 440 U.S. 920 (1979); U.S. v. O’Brien, 618
F.2d 1234, 1239 (7th Cir. 1980)). The trial court must also determine whether the fact of another
crime or wrong, if established, would be relevant. Id. Evidence of uncharged misconduct must
be relevant to a material and disputed issue concerning the crime charged, other than propensity.
Field, 144 Idaho at 569, 165 P.3d at 283 (citing I.R.E. 404(b); Moore, 120 Idaho at 745, 819
P.2d at 1145). Such evidence is only relevant if the jury can reasonably conclude that the act
occurred and that the defendant was the actor. Beechum, 582 F.2d at 912-13.
Second, the trial court must engage in a balancing under I.R.E. 403 and determine
whether the danger of unfair prejudice substantially outweighs the probative value of the
evidence. M. CLARK, REPORT OF THE IDAHO STATE BAR EVIDENCE COMMITTEE, C 404, p. 4 (4th
Supp. 1985); State v. Sheahan, 139 Idaho 267, 275, 77 P.3d 956, 964 (2003) (citing State v. Law,
136 Idaho 721, 726, 39 P.3d 661, 666 (Ct. App. 2002); State v. Cannady, 137 Idaho 67, 72, 44
P.3d 1122, 1127 (2002); I.R.E. 403). This balancing is committed to the discretion of the trial
2
Idaho Rule of Evidence 404(b) is substantially identical to F.R.E. 404(b).
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judge. Field, 144 Idaho at 569, 165 P.3d at 283. The trial court must determine each of these
considerations of admissibility on a case-by-case basis. M. CLARK, REPORT OF THE IDAHO STATE
BAR EVIDENCE COMMITTEE, C 404, p. 4 (4th Supp. 1985).
In the instant case, the district court admitted evidence of Grist’s prior, uncharged sexual
misconduct with his ex-wife’s daughter. When ruling on the admission of this evidence, the
district court expressed discomfort with the status of I.R.E. 404(b) jurisprudence in Idaho,
stating:
Well, I have had the opportunity to review Moore along with a number of
other cases that have addressed this issue and, well, I’ll tell [you] that I’m not
really comfortable with the analysis of Moore, but I’m certain certainly I think
stuck with the state of appellate law regarding these kinds of issues.
I think that there has largely been a class of cases that have developed that
are unique to sexual abuse cases. And I’m – I think that I’m bound to follow that.
I think the evidence submitted to me by way of the offer of proof from the
state is relevant to a material disputed issue in this matter, that is, defendant’s
alleged conduct, and though certainly prejudicial to the defense, I believe that the
probative value would substantially outweigh the danger of that unfair prejudice.
In reaching this decision, the district court acted without benefit of our subsequent
decision in Field, in which we cautioned “there must be limits to the use of bad acts evidence to
show a common scheme or plan in sexual abuse cases.” 144 Idaho at 570, 165 P.3d at 284. The
district court correctly observed that precedent from this Court and the Court of Appeals is
binding upon the district courts in Idaho. State v. Guzman, 122 Idaho 981, 986, 842 P.2d 660,
665 (1992). Although the district court was applying controlling precedent from the appellate
courts of this state, the district court did not determine whether there was sufficient evidence to
establish as fact Grist’s prior uncharged sexual misconduct with A.W. nor did the district court
articulate whether the evidence was probative because it demonstrated the existence of a
common scheme or plan or because it tended to otherwise corroborate J.M.O.’s testimony.
As will be discussed in the following section, trial courts must carefully scrutinize
evidence offered as “corroboration” or as demonstrating a “common scheme or plan” in order to
avoid the erroneous introduction of evidence that is merely probative of the defendant’s
propensity to engage in criminal behavior. Accordingly, we vacate the judgment of conviction
and remand for a new trial. We do not decide the admissibility of the evidence at issue in this
case. The district court will make that determination on remand in exercise of its discretion.
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B. Corroboration
Prior to this Court’s decision in State v. Byers, 102 Idaho 159, 627 P.2d 788 (1981), a
defendant could not be convicted of a sex crime unless other evidence corroborated the victim’s
allegations. In Byers, we rejected the corroboration requirement in sex crime cases. 102 Idaho
at 165, 627 P.2d at 793. Prior to Byers, evidence of prior uncharged sexual misconduct was one
avenue of providing corroborating evidence. Moore, 120 Idaho at 745-46, 819 P.2d at 1145-46.
Nevertheless, in Moore, despite our abandonment of the corroboration requirement in
prosecutions for sexual offenses, this Court held that although corroborating evidence “is no
longer mandatorily required in all sex crime cases, corroborating evidence may still be relevant,
particularly in sex crime cases involving minor victims.” 120 Idaho at 746, 819 P.2d at 1146
(footnote omitted).
We explained this conclusion as follows: “Corroborative evidence in sex crime cases
involving youthful victims is often times necessary to establish the credibility of a young child.
Too often the determination of the case rests strictly upon establishing that the victim’s
testimony is more credible than that of the alleged perpetrator.” Id.
In this case, the State argues that Grist’s prior acts of uncharged sexual misconduct
corroborate J.M.O.’s testimony. This is a legitimate argument under Moore and its progeny.
However, we wish to emphasize that evidence offered for the purpose of “corroboration” must
actually serve that purpose; the courts of this state must not permit the introduction of
impermissible propensity evidence merely by relabeling it as “corroborative” or as evidence of a
“common scheme or plan.”
The verb “corroborate” is defined as follows:
To strengthen; to add weight or credibility to a thing by additional and
confirming facts or evidence. The testimony of a witness is said to be
corroborated when it is shown to correspond with the representation of some other
witnesses, or to comport with some facts otherwise known or established.
BLACK’S LAW DICTIONARY, 311 (5th ed.1979).
Although we can envision instances in which evidence of uncharged misconduct will
tend to reinforce the credibility of a witness without reliance on the impermissible theory of the
defendant’s propensity to engage in such misconduct, we will not attempt to identify all
circumstances in which such evidence properly may be admitted. Rather, we will identify the
instance in which such evidence may not be admitted: Evidence of uncharged misconduct may
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not be admitted pursuant to I.R.E. 404(b) when its probative value is entirely dependent upon its
tendency to demonstrate the defendant’s propensity to engage in such behavior.
Moore demonstrates the impermissible reasoning of which we warn. In Moore, this
Court attempted to explain the manner in which uncharged misconduct may serve as
corroboration, quoting from a UCLA law review article:
[A]dmission of corroborative evidence serves the dual purpose of reducing
the probability that the prosecuting witness is lying, while at the same time
increasing the probability that the defendant committed the crime.
Other Sex Offenses, 25 UCLA L.Rev. 261, 286 (1977).
Id.
In our view, the theoretical underpinning of the admissibility of uncharged misconduct
for purposes of “corroboration” as articulated in Moore is indistinguishable from admitting such
evidence based upon the accused’s propensity to engage in such behavior based upon his or her
past behavior. Although we have consistently stated that use of character evidence to
demonstrate a propensity to commit crime is impermissible, see, e.g. State v. Yakovac, 145 Idaho
437, 445, 180 P.3d 476, 484 (2008), our explanation in Moore could have just as easily been
stated as follows: “If the defendant has committed another sex offense, it is more probable that
he committed the offense for which he is charged, thus reducing the probability that the
prosecuting witness is lying, while at the same time increasing the probability that the defendant
committed the crime.” The unstated premise in Moore is simply this: “If he did it before, he
probably did it this time as well.” This complete reliance upon propensity is not a permissible
basis for the admission of evidence of uncharged misconduct.
We do not overrule Moore in its entirety. Moore correctly states: “Where relevant to the
credibility of the parties, evidence of a common criminal design is admissible.” 120 Idaho at
746, 819 P.2d at 1146.
This statement is consistent with I.R.E. 404(b)’s recognition that
evidence may be admissible for certain purposes, including “preparation, plan, knowledge, [and]
identity,” which purposes are most frequently grouped together under the rubric of “common
scheme or plan.” In Tolman, we cautioned against an expansive interpretation of “common
scheme or plan,” stating: “We do not suggest today that any and all evidence of prior sexual
misconduct is admissible in sex crime cases merely by placing it under the rubric of
corroborative evidence of a common scheme or plan.” 121 Idaho at 905, 828 P.2d at 1310. In
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Field, we again cautioned “there must be limits to the use of bad acts evidence to show a
common scheme or plan in sexual abuse cases.” 144 Idaho at 570, 165 P.3d at 284.
Although we have not done so recently, subsequent to our adoption of the Idaho Rules of
Evidence in 1985, we provided guidance as to when evidence of other bad acts may properly be
admitted. In State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991), overruled on other grounds
by State v. Card, 121 Idaho 145, 825 P.2d 1081 (1991), we stated that such evidence may be
admissible “if relevant to prove … a common scheme or plan embracing the commission of two
or more crimes so related to each other that proof of one tends to establish the other, knowledge,
identity, or absence of mistake or accident.” Id. at 750-51, 810 P.2d 680, 688-89 (1991)
(emphasis added) (citing I.R.E. 404(b); State v. Wrenn, 99 Idaho 506, 584 P.2d 1231 (1978);
State v. Walker, 109 Idaho 356, 707 P.2d 467 (Ct. App. 1985)). 3 We once again caution the trial
courts of this state that they must carefully examine evidence offered for the purpose of
demonstrating the existence of a common scheme or plan in order to the determine whether the
requisite relationship exists.
Idaho Rule of Evidence 101(b) provides that the Idaho Rules of Evidence “govern all
actions, cases and proceedings in the courts of the State of Idaho.” In our view, there is no
principled basis for relaxing application of these rules to facilitate prosecution of a single class of
criminal offenses. We continue to recognize that, in appropriate cases, evidence of uncharged
misconduct may be probative as reflecting a common scheme or plan or to otherwise corroborate
the testimony of a witness. However, the scope of evidence that may properly be admitted
pursuant to I.R.E 404(b) is no greater in sex crime cases than it is for any other type of case. The
trial courts of this state must carefully scrutinize evidence offered under I.R.E. 404(b) for
purposes of “corroboration” as demonstrating a “common scheme or plan” in order to determine
whether such evidence actually serves the articulated purpose or whether such evidence is
merely propensity evidence served up under a different name.
As the district court determined that the proffered evidence was governed by a body of
law unique to sexual abuse cases, we vacate the judgment and remand for proceedings consistent
with this opinion.
3
The statement in Pizzuto identifying the permissible use of evidence of uncharged misconduct was first articulated
prior our adoption of the Idaho Rules of Evidence. However, the adoption of I.R.E. 404(b) was not expected or
intended to change existing Idaho law. M. CLARK, REPORT OF THE IDAHO STATE BAR EVIDENCE COMMITTEE, C
404, p. 4 (4th Supp. 1985).
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IV. CONCLUSION
We clarify that the Idaho Rules of Evidence require that trial courts treat the admission of
evidence of uncharged misconduct in child sex crime cases no differently than the admission of
such evidence in other cases. Accordingly, we vacate the judgment of conviction and remand for
further proceedings and a new trial consistent with this opinion.
Chief Justice EISMANN, Justices BURDICK and J. JONES CONCUR.
W. JONES, J. specially concurring:
I concur with the majority opinion; however, I write separately because I fail to see the
clarifying picture that the majority seeks to paint.
I completely agree that “complete reliance upon propensity [evidence] is not a
permissible basis for the admission of evidence of uncharged misconduct.” But, I disagree that
this Court’s opinion in State v. Moore requires any clarification. This Court in Moore clearly
stated that I.R.E. 404(b) does not allow for the admission of “[o]ther crimes, wrongs or acts”
unless the evidence is offered for another purpose such as, “proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” State v. Moore, 120
Idaho 743, 745 n.2, 819 P.2d 1143, 1145 n.2 (1991); I.R.E. 404(b). A very clear test was
outlined in Moore:
A two-tiered analysis is used to determine the admissibility of evidence
concerning uncharged misconduct. First, the evidence must be relevant to a
material and disputed issue concerning the crime charged. Second, the court must
determine whether the probative value of the evidence is outweighed by the
danger of unfair prejudice to the defendant [pursuant to I.R.E. 403].
State v. Moore, 120 Idaho 743, 745, 819 P.2d 1143, 1145 (1991). Therefore, the trial court is to
engage in three steps: (1) whether the evidence of another crime, wrong or act is being offered
for a purpose other than to prove acting in conformity therewith; (2) whether the evidence is
relevant to a material and disputed issue; 4 and (3) whether the probative value of the evidence is
outweighed by the danger of unfair prejudice. In Moore, the court did in fact engage in such an
analysis: (1) Moore had been accused of prior sexual misconduct by abusing other young
4
In Moore, the Court found the evidence relevant because the defendant was contesting the victim’s credibility.
The Court found that corroboration evidence that verifies the victim’s story as relevant because of the degree of
corroboration. That is, the other crimes showed the defendant exploits “young female children living within his
household.” Moore, 120 Idaho at 745, 819 P.2d at 1145.
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females and it was being offered to show a common scheme or plan to sexually exploit an
identifiable group in an identifiable manner; (2) the evidence was relevant because it
corroborated the victim’s story and the defendant had called the victim’s credibility into
question; and (3) the probative value of offering the testimony outweighed any danger of unfair
prejudice. 5
This Court has also cautioned against an overly broad reading or interpretation of the
principles of I.R.E. 404(b) in relation to child sex abuse cases. “We do not suggest today that
any and all evidence of prior sexual misconduct is admissible in sex crime cases merely by
placing it under the rubric of corroborative evidence of a common scheme or plan.” State v.
Tolman, 121 Idaho 899, 905, 828 P.2d 1304, 1310 (1992). The Court of Appeals heeded that
cautionary statement and interpreted Moore and Tolman “to be limited in their application to
sexual abuse cases where other similar incidents of sexual misconduct by the defendant with the
same or similar victims tends to corroborate a child victim’s version of the charged incident.”
State v. Wood, 126 Idaho 241, 247, 880 P.2d 771, 777 (1994). This interpretation was made in
error. The evidence would be admissible under the test in any circumstance where evidence of
other crimes, acts or wrongs is being offered for a purpose other than to prove acting in
conformity therewith. In instances of sexual abuse cases the court must engage in the same
analysis pursuant to I.R.E. 404(b) and I.R.E. 403. Therefore, I concur with the majority’s
conclusion that “trial courts [must] treat the admission of evidence of uncharged misconduct in
child sex crime cases no differently than the admission of such evidence in [any] other case[].”
5
As noted in the dissenting opinion, the majority in Moore only did a conclusory analysis of whether the probative
value of the evidence outweighs any danger of unfair prejudice. In most cases the probative value will be
outweighed by the danger of unfair prejudice; a court must engage in some form of analysis of how the probative
value outweighs the prejudice.
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