BURDICK, Chief Justice.
This case concerns Appellant James Fredrick Pepcorn, Sr.'s petition for review from the Court of Appeals decision finding error in two cases against him that were consolidated at trial. After a harmless error analysis, the Court of Appeals decided that the error in one of the cases was harmless error, but was not in the other case. In resolving the appeal, we directly address the issues at the trial court level regarding the introduction of Idaho Rules of Evidence Rule 404(b) evidence. We conclude that the admission of 404(b) testimonial evidence was not in error.
Appellant James Fredrick Pepcorn, Sr. (Pepcorn) was found guilty and charged with two counts of lewd conduct, two counts of sexual abuse of a child, and one count of rape in a consolidated trial in Minidoka County. Both victims were nieces by marriage. One of the nieces, A.R.G., testified that Pepcorn had digitally penetrated her after a four-wheeler ride in the middle of a field, and that on a subsequent visit to his farm, Pepcorn anally raped her in his bedroom. These events took place in 1992 or 1993, when A.R.G. was six or seven years old. The other
On May 10, 2007, the Information was filed for the counts committed against A.R.G., lewd conduct with a minor child under sixteen, pursuant to I.C. § 18-1508, and rape, pursuant to I.C. § 18-6101. On October 16, 2007, Pepcorn waived his right to a speedy trial and the parties stipulated to vacate and reschedule the jury trial set for the counts involving A.R.G. upon the belief that further charges would most likely be brought against Pepcorn. On March 10, 2008, the Information was filed for the counts committed against A.J., two counts of sexual abuse of a child under the age of sixteen years, pursuant to I.C. § 18-1506, and lewd conduct with a minor child under sixteen, pursuant to I.C. § 18-1508.
During the hearing regarding the motions for consolidation and admission of 404(b) evidence, Pepcorn's pre-trial counsel objected early on in the hearing on the grounds of there being different victims, different cases, unconnected acts or transactions, at dissimilar times, and no common questions of fact. Later, counsel objected to the consolidation on similar grounds and further because the incidents were reported at different times and the victims were different ages at the time of the incidents. Additionally, objections were made regarding the 404(b) issue based on the different types of conduct and different sex of some of the witnesses and defense counsel asked for the court's permission to brief the issue further.
The district court decided that it would allow the 404(b) evidence, ruling that the offenses were similar and were admissible for purposes other than propensity, namely because the evidence was relevant to show a common plan or scheme "to sexually abuse an identifiable group of young persons, many of whom are approximately the same age, with whom the defendant is related, and with the defendant has access to by reason of his familial and blood relationship." The district court also found the evidence relevant for purposes of credibility, and further for showing motive, opportunity, and preparation.
Based on similar reasoning, the court also decided in favor of consolidation because of "clear evidence here of a common plan or scheme to abuse these relatives of all approximately the same age group." At a later hearing concerning an additional witness listed on the notice of intent, the court further explained that it was ordering consolidation because "it seems to me that all of the witnesses would be identical in each of the two trials" and those that were not, could be handled by a limiting instruction. The court also gave further reasoning for its decision regarding consolidation: (1) there would be little risk that the jury would be confused between the five different counts/allegations; (2) the jury would be given instructions to find all material elements of the crime charged for each allegation; and (3) the jury was going to essentially hear the same evidence for each case.
The 404(b) testimony heard during the pre-trial hearings and eventually at trial consisted of testimony from six of the individuals initially listed in the notices. Two of the witnesses that testified were two of the daughters of Pepcorn's wife's older sister. The older of the two nieces testified that at the time Pepcorn was living in their basement in Ogden, Utah, and was an instructor for summer night courses at Weber State University. She testified at trial to an event that took place over forty years prior to her testimony.
The younger niece testified that when she was between two and five years of age, in proximity to the time her sister testified, that she had been subject to a similar event.
Another niece, a daughter of Pepcorn's wife's younger sister who is a sister to A.J. and a first cousin to A.R.G., testified that about thirteen to nineteen years prior to the time at which she testified, when she was between seven and thirteen years old, Pepcorn touched her breasts when they hugged on visits to Pepcorn's farm. She also testified at trial to other events that occurred at Pepcorn's farm.
Three brothers of Pepcorn's wife also testified. Each of them testified to incidents that happened approximately 32 to 42 years prior to testifying, when they were between the ages of six and fourteen. Each of the brothers testified that Pepcorn touched and stroked their penises, and that Pepcorn made them touch and stroke his penis. The oldest brother, and A.R.G.'s father, testified that
A younger brother testified that the earliest incident that he could remember of Pepcorn acting inappropriately occurred at a hot springs near Pepcorn's cabin when he was approximately five years old.
The next incident this brother remembered happened in the brothers' home when he was six or seven years old and included the youngest brother who was four or five at the time.
Additionally, this brother testified to other incidents at the hot springs where Pepcorn would fondle the boy's penis and would "take [the boy's] hand and place[ ] it down on his penis." After this brother pulled his hand away, Pepcorn "pulled [the boy's] hand back down there, put it on his penis," with "his hand wrapped around [the boy's] hand, wrapped around his penis." Pepcorn then "moved [the boy's hand] up and down." The brother also testified he attended a Boy Scout winter camp, where Pepcorn was a scoutmaster, when he was eight or nine years old. The brother testified that during the evening, "[Pepcorn] fondled my penis; and he put my hand on his and held it there, and moved it up and down until he ejaculated." On another occasion when this brother was nine, an incident happened in Pepcorn's truck where Pepcorn "unbuttoned my pants and took my penis out and started to fondle it." And then Pepcorn "took his penis out of his pants and put [the boy's] hand on it, and [the boy] pulled it away."
The youngest brother testified to similar incidents including times during the holiday season when Pepcorn came into the boys' bedroom and touched his penis. The youngest brother also recounted an incident where the three brothers were riding in Pepcorn's truck and Pepcorn "started touching the penis area of my brother over the pants. And then he instructed [the brothers to do it to each other]; and we were all supposed to be there touching each other." Also, the youngest brother testified to an incident where he and a brother assisted Pepcorn with plowing a field. Each brother would take a turn on the tractor to help Pepcorn manually turn the plow. While on the tractor, Pepcorn "opened [the boy's] pants" and touched him "on the penis again." At this time, while Pepcorn was touching the boy's penis, he told the boy that his brother liked when Pepcorn touched his penis, and also asked him if his female cousins (also related to Pepcorn by marriage) would do that to him. Also, one year near Easter, Pepcorn took some of the children to a cabin and the youngest brother was forced to sleep in Pepcorn's bed, where Pepcorn "played with [the youngest boy] until [the boy] ejaculated." The youngest brother also testified that Pepcorn made him touch Pepcorn's penis as well.
Finally, the youngest brother testified that Pepcorn had tried to touch his penis as late as age twenty-two during a camping trip.
The youngest brother also testified that years later he met with Pepcorn and Pepcorn's clergyman, a LDS bishop, to discuss the abuse in 1998 or 1999. The oldest of the brothers, A.R.G.'s father, was also invited to the meeting but chose not to attend. After the youngest brother shared about all of the incidents at the meeting, he testified that Pepcorn had responded by saying:
This testimony regarding the meeting with Pepcorn's bishop was shared at a pre-trial hearing and on rebuttal at trial after Pepcorn testified about the meeting yet denying that he had ever said that his wife's "whole family wanted to be molested."
Of those that did not testify at the earlier hearings, a nephew, A.J.'s brother, testified at trial that he had witnessed Pepcorn touching his sister when helping her onto a horse.
Also, another niece testified at trial in rebuttal to Pepcorn's testimony that he did not act inappropriately with any minors after the mid-1970s. She testified that between the ages of twelve and sixteen, sixteen to twenty years prior to the testimony, Pepcorn touched her breasts during hugs.
Prior to each of the 404(b) witness' testimony and at the conclusion of the jury trial, the district court instructed the jury of the limited purposes of the testimony and that the evidence was not to be considered to prove "the defendant's character or that the defendant ha[d] a disposition to commit crimes."
At trial, both victims testified, and all but one of the witnesses listed in the notices of intent to introduce 404(b) evidence testified.
Pepcorn was found guilty of all counts and sentenced to concurrent terms of indeterminate life with twenty years fixed in A.R.G.'s case, and concurrent unified terms of fifteen years with five years determinate for the two sexual abuse counts and indeterminate life with twenty years fixed for the lewd conduct count in A.J.'s case. Pepcorn appealed the decision by the district court to allow the 404(b) evidence at trial.
When reviewing a case from the Court of Appeals, this Court gives serious consideration to the Court of Appeals' views, but will review the trial court's decision directly. State v. Field, 144 Idaho 559, 564, 165 P.3d 273, 278 (2007). Ultimately, this Court acts as if the appeal was directly from the trial court's decision. Id.
Whether evidence is relevant is a question this Court will review de novo, but an abuse of discretion standard is used when reviewing a trial court's decision to admit evidence. State v. Shutz, 143 Idaho 200, 202, 141 P.3d 1069, 1071 (2006). A three point inquiry is used to determine whether a trial court has abused its discretion: (1) whether the court correctly perceived the issue as one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether the trial court reached its decision by an exercise of reason. State v. Perry, 150 Idaho 209, 218, 245 P.3d 961, 970 (2010).
Pepcorn argues that the district court impermissibly allowed evidence of prior, uncharged
Before trial, the district court held a hearing for six witness accounts of prior uncharged sexual conduct of Pepcorn to determine whether the testimony would be allowed pursuant to I.R.E. 404(b).
Another one of Pepcorn's nieces, A.J.'s sister and A.R.G.'s first cousin, testified that on family visits to Pepcorn's home approximately fifteen to twenty years prior when she was between the ages of seven and thirteen that Pepcorn would run his hand up her side and touch her breasts when he hugged her. She also testified that when she rode horses at his farm, Pepcorn helped her onto the horse by placing a hand on her vagina and then move his fingers. Also, Pepcorn placed his hand on her thigh then slowly move it up to her vagina and let it rest there as she rode in front of him on four-wheeler rides.
The final witnesses testifying at the hearing were the three brothers of Pepcorn's wife. Each testified to separate incidents where Pepcorn touched their penises and either Pepcorn manually ejaculated one of the brothers or made them manually ejaculate Pepcorn. One of them also testified that Pepcorn made him touch his brother's penis as well. One brother testified that the incidents happened to him between the ages of eleven and thirteen. Another testified the incidents happened when he was between the ages of six and fourteen, and the last brother testified that he was between the ages of four and thirteen when these incidents occurred. He also testified that Pepcorn later attempted to touch his penis while camping when he was twenty-two years old. These incidents occurred between 32 and 42 years prior to the testimony.
This youngest brother also testified that he met with Pepcorn and Pepcorn's LDS bishop in 1998 or 1999 to discuss the sexual acts committed against him by Pepcorn. In response to the recounting of the prior acts against the youngest brother, Pepcorn stated that:
During the hearing, the district court twice ruled that the testimony was admissible for trial. For the initial decision, the district court first looked at the questions of remoteness and similarity, recognizing that the more remote a prior act was it would require more similarity. After analyzing one of the witnesses that was most similar to the charges alleged by A.J., the district court then entered into a relevancy analysis.
The district court then stated that the proffered testimony was relevant for a "variety of reasons." The court found the testimony relevant to show a "common plan or scheme to sexually abuse an identifiable group of young persons, many of whom are approximately the same age, with whom the defendant is related, and with whom the defendant has access to by reason of his familial and blood relationship." The district court also found the testimony relevant for absence of mistake and for the purpose of showing motive, opportunity, and preparation.
Next the district court entered into an unfair prejudice analysis, stating that the question of prejudice takes on a different tone than it had been accustomed to because of the amount of testimony by "so many people of so many events."
The district court revisited this ruling after the youngest brother's testimony, which included Pepcorn's statement that his wife's entire family "wanted it." The district court first corrected the statement from his earlier finding that the witnesses were all blood relatives by stating that they were all related to Pepcorn by marriage, all being blood relatives of Pepcorn's wife. Next, the district court stated that this was "that identifiable group with the opportunity, intent, motive and so forth that brings it into the realm of the 404(b) conduct."
Idaho Rule of Evidence 404(b) states:
The admissibility of evidence offered for I.R.E. 404(b) purposes must pass a two-step analysis. State v. Johnson, 148 Idaho 664, 667, 227 P.3d 918, 921 (2010); State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185, 1188 (2009). First, the evidence of prior misconduct must be sufficiently established as fact and relevant as a matter of law to a material and disputed issue other than the character or criminal propensity of the defendant. Johnson, 148 Idaho at 667, 227 P.3d at 921; Grist, 147 Idaho at 52, 205 P.3d at 1188. For the
Reliability is important to the relevance analysis because 404(b) evidence can only be relevant "if the jury can reasonably conclude that the act occurred and that the defendant was the actor." Grist, 147 Idaho at 52, 205 P.3d at 1188. Here, the trial court found that the evidence was reliable, and the record defends this finding, because Pepcorn himself had apologized later to one of the victims, and Pepcorn in the trial admitted to many of the prior incidents.
As for relevance, the district court found here that the testimony was relevant because it tended to show a common plan or scheme to sexually abuse an identifiable group of related young persons of either sex. This Court has cautioned the use of the "common plan" rubric. See Grist, 147 Idaho at 53, 205 P.3d at 1189 ("[T]rial courts must carefully scrutinize evidence . . . 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."); State v. Field, 144 Idaho 559, 570, 165 P.3d 273, 284 (2007) ("[T]here must be limits to the use of bad acts evidence to show a common scheme or plan in sexual abuse cases.") The requisite level of relevance must be more than "the bare fact that sexual misconduct has occurred with children in the past." Johnson, 148 Idaho at 668, 227 P.3d at 922. This Court has often stated, and it bears repeating, that 404(b) evidence should only be admitted 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. This statement of law is appropriate in the vast majority of cases involving the presentation of 404(b) evidence. These are the instances where there is no direct evidence of the existence of a common design. In such cases, trial courts are obligated to evaluate whether the offenses bear such a resemblance to the charged offense that the existence of a common plan may legitimately be inferred. However, in a minority of cases, there will be direct evidence demonstrating the existence of the common design. The present appeal presents such a case. In this case, the statements attributed to Pepcorn identify the group that he targeted for sexual contact (his wife's family members) and his motive for targeting that group (his wife's refusal to engage in sexual relations). The district court did not err in determining the 404(b) evidence to be relevant.
If the common scheme or plan rubric is to be used, there must be common characteristics that go "beyond merely showing a criminal propensity." Id. Here, there is testimony that Pepcorn himself stated that his wife's entire family wanted to be touched and that since his wife would not have sex with him, he had "to have it" with someone. This shows a definite plan for sexual conduct with members in his wife's family that goes beyond a showing of criminal propensity. The testimony of the statement made by Pepcorn also goes to the motive behind the plan. "Motive is generally defined as that which leads or tempts the mind to indulge in a particular act." State v. Stevens, 93 Idaho 48, 53, 454 P.2d 945, 950 (1969). The testimony shows motive—that Pepcorn's wife would not have sex with him and that he looked for it elsewhere. Pepcorn's own words show that he then selected a specified group with whom he could have sex. A common plan of sexual misconduct with the same group of correspondingly aged children of both sexes that were related to his wife is clearly established by the evidence in this case.
Over a span of forty years, Pepcorn targeted the members of his wife's family that he came into contact with; his wife's siblings, and their children. Although many witnesses testified at trial against Pepcorn, they were necessary to show that they were part of a common plan that was so related to each other that they tend to establish the commission of the crimes against his nieces in this
A large number of witnesses testifying to similar uncharged conduct by a defendant will always present the danger of unfair prejudice. The concern is that jurors may conclude that "[i]f he did it before, he probably did it this time as well." This is the impermissible "propensity" inference that I.R.E. 404(b) attempts to address. Grist, 147 Idaho at 54, 205 P.3d at 1190. In the present case, however, the district court repeatedly instructed the jury, both orally and in writing, that the evidence was admitted for a limited purpose and could not be considered for purposes of demonstrating that Pepcorn had a propensity to commit crimes. "We presume that the jury followed the jury instructions given by the trial court in reaching its verdict. . . ." State v. Carson, 151 Idaho 713, 718, 264 P.3d 54, 59 (2011) (citing Phillips v. Erhart, 151 Idaho 100, 109, 254 P.3d 1, 10 (2011)). In view of these instructions, and recognizing that this is the unusual instance where the defendant made statements identifying the targets of his criminal behavior and his reasons for targeting these individuals, we are unable to conclude that the district court abused its discretion when it found that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.
The two victims in this case were Pepcorn's nieces, one a daughter of his wife's sister, the other a daughter of his wife's brother. Not only were the victims similarly related as the 404(b) witnesses, but they each testified to sexual misconduct that was in many ways similar to the misconduct testified to by the other family members. A.R.G., testified that Pepcorn took her on a four-wheeler ride and made her pull down her pants and underwear and then digitally penetrated her vagina when she was approximately six years old. Two of the witnesses, also Pepcorn's nieces, testified to being digitally penetrated by Pepcorn when they were approximately the same age. The three brothers also testified that at similar ages Pepcorn started touching their penises in an attempt to get the boys to ejaculate. A.J. testified that Pepcorn touched her breasts and held her buttocks during hugs and also grabbed her crotch and massaged her vagina while helping her mount a horse. She also testified that Pepcorn asked her to sit on his lap and then placed his hand on her upper thigh and then ran it up near her vagina. These incidents happened to her between the ages of seven and thirteen. Three witnesses testified to similar misconduct by Pepcorn. Two of these witnesses, also nieces of Pepcorn, testified to him touching their breasts while hugging them. One of these two also testified to Pepcorn placing his hand on her vagina and massaging it while helping her onto a horse. The third witness testifying to similar incidents as those charged was a nephew of Pepcorn's who testified that he had witnessed Pepcorn placing his hands on one of the victim's vagina while helping her onto a horse. We hold that at the time that the district court reiterated his decision on the 404(b) evidence at the pre-trial hearings, the evidence presented was relevant to show a common scheme or plan.
This holding is in line with our previous holdings in Johnson and Grist seeking to ensure that admission of evidence of uncharged misconduct in child sex crimes is treated "no differently than the admission of such evidence in other cases." Grist, 147 Idaho at 55, 205 P.3d at 1191. The evidence presented in this case goes well "beyond the bare fact that sexual misconduct has occurred with children in the past." Johnson, 148 Idaho at 668, 227 P.3d at 922. The evidence presented here shows that Pepcorn has made a conscious choice to deliberately molest or abuse his wife's siblings and their children. The proffered 404(b) evidence is not used to show propensity; the common characteristics between the misconduct corroborates the presence of a definite common plan. See id. The admission of the testimonial evidence to sexual misconduct by multiple family members related to Pepcorn by marriage and the testimony that Pepcorn, in response to being confronted by one of the prior victims, stated that his wife's entire family "wanted it," was not in error and was relevant to prove a common scheme or plan. The admission of this evidence by the district court was not an abuse of discretion. When the evidence was presented to the district
The district court's decision allowing the admission of the 404(b) evidence is affirmed and Pepcorn's convictions are upheld.
Justices J. JONES, W. JONES, HORTON and STOKER, J., Pro tem. concur.