               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40165

STATE OF IDAHO,                                 )
                                                )     2013 Opinion No. 52
       Plaintiff-Respondent,                    )
                                                )     Filed: October 7, 2013
v.                                              )
                                                )     Stephen W. Kenyon, Clerk
RICARDO OZUNA, JR., aka RICHARD                 )
OZUNA, JR., RICH GARCIA, RICARDO                )
OZUNA, KEANU OZUNA, RICHARDS                    )
OZUNA,                                          )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Bradly S. Ford, District Judge.

       Judgment of conviction for lewd conduct with a minor child under sixteen and
       unified life sentence, with a minimum term of confinement of twenty years,
       enhanced for having been previously convicted of a sexual offense, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Ricardo Ozuna, Jr., appeals from his judgment of conviction for lewd conduct with a
minor child under sixteen and his unified life sentence, with a minimum term of confinement of
twenty years, enhanced for having been previously convicted of a sexual offense. Specifically,
Ozuna argues that the district court erred by excluding proffered evidence of the victim’s
sexually transmitted disease and that his sentence is excessive. For the reasons set forth below,
we affirm.




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                                                I.
                                  FACTS AND PROCEDURE
       Ozuna was charged with lewd conduct with a minor child under sixteen and a sentencing
enhancement for having been previously convicted of a sexual offense. I.C. §§ 18-1508, 19-
2520G(2). The fifteen-year-old victim testified that Ozuna had provided her with alcohol and
engaged in genital-to-genital contact with her, part of which occurred while she was
unconscious. Before trial, Ozuna moved the district court to introduce evidence that the victim
had a sexually transmitted disease (STD) at the time the sexual contact occurred and that he had
learned of this fact beforehand through a third party. 1 He argued that this evidence corroborated
his defense that he had not engaged in sexual intercourse with the victim because he did not want
to get the disease. He also sought to introduce evidence that he had not contracted the disease,
which he asserted tended to prove he had not had sexual intercourse with the victim. The district
court denied the motion and excluded the evidence, finding it inadmissible as reputation or
opinion evidence of the victim’s past sexual behavior. The district court also determined that
admission of the evidence was not constitutionally required because its relevance was
questionable and its probative value did not outweigh the danger of creating unfair prejudice
against the victim. Ozuna was subsequently found guilty of lewd conduct with a minor child
under sixteen and of having been previously convicted of a sexual offense. The district court
sentenced Ozuna to a unified term of life imprisonment, with a minimum period of confinement
of twenty years. Ozuna appeals.
                                               II.
                                          ANALYSIS
A.     Exclusion of evidence
       1.      Exclusion under I.R.E. 412
       Ozuna first argues that the district court erred by excluding evidence showing that the
victim had an STD, that Ozuna allegedly learned of this from a third party before the alleged
sexual contact, and that Ozuna had not since shown any symptoms of the disease. Ozuna




1
       The rape kit revealed that the victim had chlamydia when the alleged sexual intercourse
occurred.


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contends that this evidence does not fall within the scope of I.R.E 412, which prohibits a
defendant in a sexual crime case from introducing evidence of a victim’s past sexual behavior. 2
       The district court has broad discretion in the admission and exclusion of evidence, and its
decision to admit such evidence will be reversed only when there has been a clear abuse of that
discretion. State v. Perry, 139 Idaho 520, 521, 81 P.3d 1230, 1231 (2003). When a trial court’s
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry
to determine: (1) whether the lower court correctly perceived the issue as one of discretion;
(2) whether the lower court acted within the boundaries of such discretion and consistent with
any legal standards applicable to the specific choices before it; and (3) whether the lower court
reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d
1331, 1333 (1989).
       Here, Ozuna asserts that the proffered testimony was not evidence of past sexual behavior
governed by I.R.E. 412 because it was being offered not for the truth of the matter asserted but to
show his state of mind. However, the district court noted that asking the victim whether she had
an STD at the time of the sexual contact would be an inquiry into the truth of the allegation. The



2
       Idaho Rule of Evidence 412 provides, in pertinent part:

                (a)    Notwithstanding any other provision of law, in a criminal case in
       which a person is accused of a sex crime, reputation or opinion evidence of the
       past sexual behavior of an alleged victim of such sex crime is not admissible.
                (b)    Notwithstanding any other provision of law, in a criminal case in
       which a person is accused of a sex crime, evidence of a victim's past sexual
       behavior other than reputation or opinion evidence is also not admissible, unless
       such evidence other than reputation or opinion evidence is--
                       (1)    admitted in accordance with subdivisions (c)(1) and (c)(2)
       [providing hearing procedure] and is constitutionally required to be admitted; . . .
                ....
                       [c](3) If the court determines . . . that the evidence which the
       accused seeks to offer is relevant and that the probative value of such evidence
       outweighs the danger of unfair prejudice, such evidence shall be admissible in the
       trial to the extent an order made by the court specifies evidence which may be
       offered and areas with respect to which the alleged victim may be examined or
       cross-examined.
                (d)    For purposes of this rule, the term “past sexual behavior” means
       sexual behavior other than the sexual behavior with respect to which the sex
       crime is alleged.


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district court held that the evidence fell squarely within I.R.E. 412 as reputation or opinion
evidence of past sexual behavior because the clear implication of evidence showing that a victim
has an STD is that the victim contracted the STD through past sexual activities. As a result, the
district court ruled the evidence inadmissible.
        Ozuna cites to three cases in support of his argument.           Two of the cases are
distinguishable because, in those cases, the state had offered evidence of the victim’s STD as
evidence that the defendant had engaged in sexual contact with the victim, thereby opening the
door for rebuttal evidence, which did not occur here. See Reece v. State, 383 S.E.2d 572, 574
(Ga. Ct. App. 1989) (holding that the trial court erred by excluding defendant’s proffered
evidence that neither he nor his wife had contracted an STD after the state had introduced
evidence that the victim had contracted the disease after the alleged sexual contact); Evans v.
Commonwealth, 415 S.E.2d 851, 855 (Va. Ct. App. 1992) (holding that evidence that the victim
waited to report the crime until after she learned she had contracted an STD was relevant and of
probative value because it tended to show that the charge may have been false and motivated by
ill-will). Only one case cited by Ozuna actually held that evidence of a victim’s STD was not
evidence of past sexual behavior. See State v. Steele, 510 N.W.2d 661, 666-67 (S.D. 1994)
(concluding evidence that the victim had an STD, which the defendant did not subsequently
contract, was not evidence of prior sexual conduct prohibited under that state’s rape shield
statute).
        However, the majority of other states have held that the issue of a victim’s STD or the
defendant’s lack of that STD is prohibited evidence of past sexual behavior under their
respective rape shield laws. See, e.g., Fells v. State, 207 S.W.3d 498, 502 (Ark. 2005) (holding
that evidence of a victim’s HIV-positive status fell under the state’s rape shield law as evidence
of prior sexual conduct because of the public’s general perception of it as an STD); State v.
Mitchell, 568 N.W.2d 493, 496 (Iowa 1997) (treating evidence that the victim tested positive for
gonorrhea shortly after a sexual assault as evidence of the victim’s past sexual behavior under
Iowa Rule of Evidence 412); State v. Ervin, 723 S.W.2d 412, 415 (Mo. Ct. App. 1986)
(upholding exclusion of testimony that the victim had gonorrhea under the state’s rape shield law
because of the inflammatory and prejudicial impact the evidence would have); State v.
Cunningham, 995 P.2d 561, 568 (Or. Ct. App. 2000) (holding that evidence of an STD is
tantamount to evidence of past sexual behavior under Oregon Rule of Evidence 412 because


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STDs generally occur as the result of sexual intercourse or sexual contact); Smith v. State, 737
S.W.2d 910, 915 (Tex. Ct. App. 1987) (analyzing proffered evidence that the victim had
gonorrhea on date of rape examination as evidence of the victim’s previous sexual conduct under
Texas rape shield law); State v. Jarry, 641 A.2d 364, 366 (Vt. 1994) (analyzing proffered
evidence that the victim had chlamydia on the date of the rape examination as evidence of the
victim’s prior sexual conduct under Vermont’s rape shield law). We believe that the better
approach is to recognize that evidence related to whether a victim had an STD or whether the
defendant thought the victim had an STD at the time of an alleged sex crime is evidence of a
victim’s past sexual behavior. Evidence that the defendant subsequently did not contract that
disease would not be relevant without first establishing that the victim had an STD.
Admissibility of such evidence is governed by I.R.E. 412. Therefore, the district court did not
abuse its discretion by treating the STD evidence as evidence of past sexual behavior under
I.R.E. 412.
       2.      Right to present a defense
       Ozuna further argues that exclusion of the proffered evidence violated his constitutional
right under the Sixth and Fourteenth Amendments to the United States Constitution to present a
full defense. Ozuna asserts that the evidence should have been admitted to allow him to explain
and corroborate his claim that he did not have sexual contact with the victim because he did not
want to contract the STD he believed she had and because he did not subsequently contract the
disease.
       A defendant’s Sixth Amendment right to present a defense may be limited by I.R.E. 412.
State v. Self, 139 Idaho 718, 722, 85 P.3d 1117, 1121 (Ct. App. 2003). A defendant has no right
to present irrelevant evidence; even if evidence is relevant, it may be excluded in certain cases.
State v. Peite, 122 Idaho 809, 814, 839 P.2d 1223, 1228 (Ct. App. 1992). The state has a
legitimate interest in protecting rape victims against unwarranted invasions of privacy and
harassment regarding their sexual conduct. See Michigan v. Lucas, 500 U.S. 145, 149-50 (1991);
Delaware v. VanArsdall, 475 U.S. 673, 679 (1986). Admission of evidence of an alleged
victim’s past sexual behavior is constitutionally required only in extraordinary circumstances.
Peite, 122 Idaho at 815, 839 P.2d at 1229. Accordingly, trial judges retain wide discretion under
the Confrontation Clause to impose reasonable limits on cross-examination and introduction of
evidence based on concerns about--among other things--harassment, prejudice, confusion of the


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issues, witness safety, or interrogation that is repetitive or only marginally relevant. VanArsdall,
475 U.S. at 679; Self, 139 Idaho at 722, 85 P.3d at 1121.
       This Court has set forth a two-part inquiry to determine whether a defendant’s Sixth
Amendment rights were violated by a trial court’s exclusion of evidence under I.R.E. 412. Self,
139 Idaho at 722, 85 P.3d at 1121; Peite, 122 Idaho at 814-15, 839 P.2d at 1228-29. First, the
trial court must consider whether the proffered evidence is relevant. Self, 139 Idaho at 722, 85
P.3d at 1121. If it is not relevant, the defendant has no constitutional right to present it. Id. If
the evidence is relevant, the trial court must ask whether other legitimate interests outweigh the
defendant’s interest in presenting the evidence.      Id. Because trial courts have such broad
discretion to determine whether prejudicial effect or other concerns outweigh the probative value
of the evidence, a defendant’s Sixth Amendment rights will be violated only if the trial court
abused its discretion. Id.; Peite, 122 Idaho at 815, 839 P.2d at 1229.
       Here, Ozuna asserts that the proffered evidence that he had learned of the victim’s STD
from a third party was relevant to his defense because it explained why he did not want to have
sexual contact with the victim. Without this evidence, he argues, a jury would be unlikely to
believe that he turned down sex with a girl whom he alleges he met on an adult chat line and
thought was of legal age.      Noting the lack of Idaho case law on point, Ozuna cites to
Commonwealth v. Thevenin, 603 N.E.2d 222 (Mass. Ct. App. 1992) for support. In Thevenin,
the defendant sought to introduce evidence that he had not had sexual intercourse with the victim
because he had learned from a coworker that the victim had an STD. He argued that the
evidence was necessary for him to present a defense, but the trial court excluded the evidence,
ruling that it was only marginally relevant. During cross-examination, the state meticulously
highlighted the sexually provocative comments and actions Thevenin alleged the victim had
made and questioned him in regard to each action and comment about his asserted disinterest in
having sexual contact with her.      The Massachusetts Court of Appeals noted first that the
proffered evidence was generally incompatible with the state’s rape-shield statute:
       [A]n open-ended exception for state-of-mind evidence concerning a defendant’s
       fear of contracting a disease would cut a gaping hole in the protection afforded
       rape victims by the rape-shield statute. Recognition of such a general exception,
       given the prevalence of sexually transmitted diseases, would undoubtedly
       encourage a significant number of inquiries into the sexual history of rape
       complainants, causing them humiliation and discouraging them from reporting the
       crime to law enforcement authorities.


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Thevenin, 603 N.E.2d at 226. The court then held that Thevenin’s constitutional right to present
a defense had been violated because the state’s cross-examination had made Thevenin’s asserted
actions look altogether incredible without his side of the story. The court noted that Thevenin’s
interest in presenting a defense outweighed the interests underlying the rape-shield statute only
because his theory was based on more than mere speculation or vague hope, as he had a potential
witness available to substantiate his claim. Id.
       We find the reasoning of the Massachusetts Court of Appeals persuasive. A general
exception allowing state-of-mind evidence regarding a defendant’s fear of contracting an STD
from a victim would fundamentally undermine the purpose of I.R.E. 412 by allowing inquiry
into subject matter that is not only embarrassing and highly inflammatory but plainly implicates
past sexual behavior. This is not to say that evidence concerning a victim’s STD is never
admissible, as the circumstances in Thevenin provide an example of when admission may be
constitutionally required. However, the present case is distinguishable from Thevenin. The
record indicates that the state made no direct or implied arguments regarding the plausibility of
Ozuna’s claim that he did not want to have sexual contact with the victim. Ozuna’s offer of
proof consisted solely of his self-serving statement that he had learned from a third party that the
victim had an STD. In response, the state contended that the third party had denied ever making
any statement about the victim having an STD. Finally, the state made no argument and
presented no evidence that the victim had contracted the STD from Ozuna and thus had not
opened the door to rebuttal evidence of Ozuna’s lack of the disease. As a result, this case does
not involve the extraordinary circumstances needed to constitutionally require admission of
evidence of a victim’s past sexual behavior.
       Ozuna also asserts that his constitutional right to present a defense was violated when he
was precluded from showing that the victim actually had an STD and that he did not
subsequently contract the STD. This, he argues, was relevant because it tended to show that he
had not had sexual intercourse with the victim. However, the district court noted there had been
no offer of proof showing the probability of contracting this particular STD from sexual
intercourse with an infected person, how long after the incident Ozuna was tested, or whether he
used antibiotics in the interim. Instead, Ozuna’s offer of proof consisted solely of his counsel’s
statement that Ozuna had been to a doctor, had a full physical, did not suffer from the STD, and
never came down with any signs. Without more, this is insufficient to demonstrate that the


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evidence was relevant, and the district court did not abuse its discretion by excluding the
proffered evidence.
       Ozuna further argues that the district court failed to balance his interest in presenting a
defense against other legitimate interests in this case. As stated above, exclusion of evidence
under I.R.E. 412 does not violate a defendant’s Sixth Amendment right to present a defense
unless the evidence is relevant and the defendant’s interest in presenting the evidence is not
outweighed by other legitimate interests. Self, 139 Idaho at 722, 85 P.3d at 1121; Peite, 122
Idaho at 814-15, 839 P.2d at 1228-29.
       Here, the record indicates that the district court balanced the interests involved. It noted
the probative value of the evidence in showing Ozuna’s state of mind and in tending to make it
less likely that he had sexual contact with the victim. The district court also noted the presence
of other legitimate interests--namely, the danger of embarrassing the victim and giving the jury
the impression that she was promiscuous.        The district court’s statements, though limited,
indicate its determination that the probative value of the evidence was low while the danger of
unfairly prejudicing the jury against the victim based on inappropriate considerations was high.
The district court concluded that Ozuna’s interest in presenting the evidence was outweighed by
other legitimate interests. Thus, the district court did not abuse its discretion by holding that
admission of the proffered evidence was not constitutionally required.
B.     Excessive sentence
        Ozuna contends that the sentence imposed by the district court was excessive and an
abuse of discretion in light of the mitigating factors known to the court. Specifically, Ozuna
argues that his family support and his history of alcohol and drug abuse require a more lenient
sentence.
       An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,
the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion.
State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such
an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice,
103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it
appears at the time of sentencing that confinement is necessary “to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,


                                                8
rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650
P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed
an excessively harsh sentence, we conduct an independent review of the record, having regard
for the nature of the offense, the character of the offender and the protection of the public
interest.   State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1884 (Ct. App. 1982). The
primary consideration is, and presumptively always will be, the good order and protection of
society. All other factors are, and must be, subservient to that end. State v. Hunnel, 125 Idaho
623, 873 P.2d 877 (1994); State v. Pederson, 124 Idaho 179, 857 P.2d 658 (Ct. App. 1993).
When reviewing the length of a sentence, we consider the defendant’s entire sentence. State v.
Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
        The record in this case reveals that Ozuna has a long criminal history consisting of
thirteen prior misdemeanor convictions and a prior felony conviction in 2002 for lewd conduct
with a minor child under sixteen. In that case, factually similar to this one, Ozuna met a
fourteen-year-old-girl on the internet, provided her with alcohol, and had sexual contact with her.
Ozuna was placed on parole three times following that felony conviction, and his parole was
revoked each time within only a few months of his release for failing to comply with the
requirements of his release or, as in this case, reoffending. Ozuna committed this crime while he
was on parole for the third time in the lewd conduct case. The district court found that the
serious nature of the crime in this case and its similarities with Ozuna’s previous conviction for
the same offense indicate a disturbing predatory methodology. The district court also noted
Ozuna’s lack of empathy or remorse for his actions and his contempt for his victim during the
trial and sentencing. In mitigation, the district court considered Ozuna’s family relationship and
noted that he has done some positive things in his life. However, the district court concluded
that Ozuna poses a very significant and substantial danger to other members of society and minor
females in particular.
        The issue before this Court is not whether the sentence is one that we would have
imposed, but whether the sentence is plainly excessive under any reasonable view of the facts.
Toohill, 103 Idaho at 568, 650 P.2d at 710. If reasonable minds might differ as to whether the
sentence is excessive, we are not free to substitute our view for that of the district court. Id.
Having thoroughly reviewed the record in this case, we cannot say that the district court abused
its discretion. Therefore, this Court will not disturb the district court’s decision.


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                                              III.
                                        CONCLUSION
       Ozuna failed to show that the district court abused its discretion by excluding the
proffered evidence of the victim’s STD and Ozuna’s lack of that STD. The district court
correctly determined that such evidence was evidence of a victim’s past sexual behavior. Ozuna
also failed to show that admission of the proffered evidence was constitutionally required. The
district court did not abuse its discretion in finding the evidence of questionable relevance and
determining that the probative value was outweighed by the danger of unfair prejudice. Finally,
Ozuna failed to show that the district court abused its discretion in sentencing. Accordingly, we
affirm Ozuna’s judgment of conviction for lewd conduct with a minor child under sixteen and
his unified life sentence, with a minimum term of confinement of twenty years, enhanced for
having been previously convicted of a sexual offense.
       Judge LANSING and Judge GRATTON, CONCUR.




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