Court: Idaho Court of Appeals; February 9, 1982; Idaho; State Appellate Court
Robert Greensweig was convicted of lewd conduct with a minor under sixteen, a felony, and subsequently appealed his conviction. The appeal raised three main issues: the sufficiency of evidence at the preliminary examination for binding him over for trial, the corroboration of the victim's account and identification of the perpetrator, and the admissibility of testimony regarding an unrelated subsequent bad act. Additionally, Greensweig challenged the overall sufficiency of evidence, jury instruction rulings, and sentencing decisions.
The case stemmed from an incident on October 30, 1978, where a ten-year-old victim testified that she was approached by a man, resembling a priest, who lured her into a church under the pretense of work. Inside, he engaged in inappropriate physical contact before she managed to escape. Evidence corroborating her testimony included a book of matches found at the scene and furniture matching her description, along with the victim's identification of Greensweig from a photo lineup five months later.
Prior to this case, Greensweig had been convicted of assault with intent to commit rape in a separate incident involving similar circumstances. Testimony from witnesses in that case further supported the prosecution's claims. Ultimately, the court affirmed the conviction and sentenced Greensweig to an indeterminate term of not more than life.
Testimony from a third girl revealed that the appellant approached her in a church, inviting her to assist him at another church, after which he assaulted her by picking her up, laying on her, kissing her, and attempting to undress before she escaped. The appellant contends that the probable cause standards outlined in Idaho Code 19-815 and Criminal Rule 5.1(b) were not met during his preliminary examination. According to these provisions, a magistrate must find that a public offense occurred and that there is probable cause to believe the defendant is guilty, based on substantial evidence of every material element of the offense. The state is not required to prove guilt beyond a reasonable doubt at this stage, only that a crime was committed and there is probable cause linking the accused to it. The appellant's motion to dismiss the charges was denied, and he argues on appeal that insufficient evidence was presented to show either that a lewd act occurred or that he had the intent to arouse or gratify sexual desires.
The victim's testimony provided a basis for the magistrate to conclude that lewd conduct with a minor under sixteen had occurred, and that the appellant possessed the necessary intent. Thus, the evidence at the preliminary examination supported the magistrate's determination of probable cause.
The appellant also challenges the district court's denial of his motion for acquittal, citing a lack of corroboration for the sexual act. The Idaho Supreme Court in State v. Byers abolished the requirement for corroboration in sexual offense cases but decided that this change would not apply retroactively. Since the trial occurred in May 1980, prior to the Byers decision in April 1981, the old requirement for corroboration remained applicable. This meant that corroboration was needed to support both the occurrence of the crime and the appellant's commission of it. The court stated that the determination of sufficient corroboration is primarily a jury question and will not be reversed unless the evidence is legally deemed insufficient.
The victim's character is unimpeached regarding truth and chastity, with her testimony aligning consistently with the admitted facts of the case. According to Idaho Supreme Court precedents, corroborating evidence can be either direct or related to the circumstances surrounding the crime. Evidence supporting the appellant's identity as the perpetrator includes the victim identifying his car and another victim corroborating his involvement in a similar crime. Additional corroboration arises from specific details provided by the victim, such as a matchbook found in the church that matched her description and a piece of cardboard discovered in the stairwell where she escaped. The state also introduced a note from the victim’s teacher found at the church, further substantiating her account.
Regarding the admission of testimony from three girls about a similar case, the appellant contends it was improper since those events occurred after the charged crime. However, the court notes that while evidence of unrelated crimes is generally inadmissible, it can be relevant to establish motive, intent, or a common scheme. No distinction is made between prior and subsequent crimes to justify exclusion. The court examines the context of the admitted evidence to determine if it fits within an exception to the exclusionary rule. The state argues this evidence was crucial to demonstrate the appellant's intent, as repeated similar acts decrease the likelihood of an honest mistake. The Idaho Supreme Court emphasizes that trial courts have broad discretion in admitting evidence, and such decisions are only reversed for clear abuse of discretion, particularly when the evidence's probative value is substantially outweighed by potential unfair prejudice to the defendant.
Prejudice to the appellant from the disputed testimony was acknowledged, yet the trial court did not abuse its discretion by determining that the testimony's probative value outweighed the prejudice. Regarding the sufficiency of evidence, the appellant contended that the state failed to demonstrate sexual arousal of either party. However, Idaho Code 18-6607 requires only the intent to arouse, not actual arousal, which the jury could reasonably infer from the defendant's conduct.
Concerning jury instructions, the appellant challenged instruction number five, asserting it removed the essential element of intent from the crime. The court clarified that the instruction correctly indicated that actual arousal was unnecessary for establishing intent. The appellant also argued that the trial court erred by refusing his proposed definition of "lewd or lascivious action," which was inconsistent with the Idaho Supreme Court's definitions established in prior cases. The court reinforced that it is not erroneous to refrain from defining these terms in jury instructions, as they are commonly understood.
On sentencing, the appellant claimed error in the denial of his motion to dismiss the persistent violator charge under Idaho Criminal Rule 48, arguing it served no purpose given the potential life sentence for the lewd and lascivious charge. Although the trial judge seemed to agree, he ultimately denied the motion. The law allows a judge broad discretion in sentencing under Idaho Code 18-6607, which permits sentences up to life without a specified minimum. Conversely, Idaho Code 19-2514 mandates that a persistent violator must receive a sentence ranging from five years to life upon a third felony conviction.
A statute mandated a minimum sentence that exceeded the potential punishment under the lewd conduct statute alone. The trial court had discretion to apply this statute in the appellant's case. The appellant argued that he was improperly sentenced, citing the district judge's oral pronouncement, which implied he received two concurrent life sentences: one for lewd conduct with a minor under 16 and one for being a persistent violator. This interpretation, if accurate, would violate Idaho Code 19-2514, which allows for increased punishment for new convictions based on prior offenses, without creating a new crime.
After sentencing, the judge signed a "judgment of conviction" and the clerk signed a "commitment," both indicating only one life term was imposed. Despite potential illegality in the oral sentence, the written judgment was deemed a correction under Idaho Criminal Rule 35. A clerical error was noted in the judgment regarding the date of the crime, which should reflect October 30, 1978, instead of October 30, 1980. The court remanded the case to correct this error as per Idaho Criminal Rule 36 and affirmed the remainder of the decision. Justices WALTERS and BURNETT concurred.
