               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45463

STATE OF IDAHO,                                 )
                                                )    Filed: May 9, 2019
       Plaintiff-Respondent,                    )
                                                )    Karel A. Lehrman, Clerk
v.                                              )
                                                )    THIS IS AN UNPUBLISHED
QUENTIN NAVA,                                   )    OPINION AND SHALL NOT
                                                )    BE CITED AS AUTHORITY
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. George A. Southworth, District Judge.

       Judgment of conviction, vacated; and case remanded.

       Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Quentin Nava appeals from the judgment of conviction. He argues the district court erred
by denying his motion to sever the two charges in his case. The judgment of conviction is
vacated, and the case is remanded for proceedings consistent with this opinion.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       At trial, J.R.R., a twelve-year-old girl, testified that she was asleep at home on a couch in
the living room where Nava, her mother’s friend, was also sleeping. She awoke to Nava
touching, rubbing, and pushing on her vagina. J.R.R.’s twelve-year-old cousin, J.L.R., testified
that the next night she slept on a couch in the same living room where Nava was again sleeping.
J.L.R. awoke to the noise of her pants unsnapping and Nava sliding his hand down her pants and
rubbing her buttocks. J.L.R. left the room and eventually went upstairs to tell her aunt what had


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happened. Her aunt asked Nava to leave, and the next morning the police were contacted about
J.L.R.’s allegation. During the investigation of J.L.R.’s allegation, J.R.R. told her mother that
Nava had also touched her while sleeping and that allegation was reported to the police.
       The State, in a single complaint, charged Nava with one count of lewd conduct with a
minor under sixteen for his conduct with J.R.R. and one count of sexual abuse of a child under
the age of sixteen years for his conduct with J.L.R. A grand jury returned a single indictment
that included both charges.
       Months later, Nava filed a “Motion to Sever for Improper Joinder Pursuant to ICR 8(a),”
arguing that joinder of the charges was improper because evidence of the two offenses did not
demonstrate a common scheme or plan, so trying the offenses together was prejudicial and
compromised Nava’s right to due process and a fair trial. The State explained that it intended to
introduce evidence at trial showing grooming behaviors Nava employed with both J.R.R. and
J.L.R., as well as other evidentiary similarities, to demonstrate a common scheme or plan. Nava
explained he intended to introduce evidence at trial showing Nava was romantically interested in
J.R.R.’s mother, not the girls, and that Nava’s nephew did not see Nava act differently toward
the girls than the other children.    The district court found the State’s proffered evidence
demonstrated a common scheme or plan under Idaho Criminal Rule 8 and that Nava would not
be unduly prejudiced by joinder of the charges under I.C.R. 14 because, even if the charges were
severed, the evidence of both of the incidents would be admissible in each trial.
       After a jury trial, Nava was convicted of both offenses, and the district court imposed an
aggregate, unified sentence of forty years, with eighteen years determinate.        Nava timely
appealed.
                                                II.
                                           ANALYSIS
       Nava argues the district court erred by denying his motion to sever the two charges
because they are not part of a common scheme of plan. Nava asserts there is confusion between
relevant case law about the appropriate standard of review. To resolve this confusion, Nava
contends a district court’s decision on an I.C.R. 14 motion to sever, which addresses the
propriety of joinder for the first time, should be reviewed de novo is an I.C.R. 8 motion to join.
Without de novo review for both I.C.R. 8 and I.C.R. 14 considerations, Nava argues the State
receives an unfair advantage. Nava claims that if the State files charges together in its original

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complaint, the propriety of joinder may only be challenged through an I.C.R. 14 motion to sever
which is reviewed for an abuse of discretion. But instead, if the State later joins charges through
an I.C.R. 8 motion, the joinder is reviewed de novo. Nava argues this distinction is unfair when
the underlying analysis of both motions is whether the proffered pretrial evidence demonstrates a
common scheme or plan such that evidence of one charge would be admissible in the trial on the
other charge.
       The State argues there is no confusion in the law concerning the review of motions to
sever. The State contends that the propriety of joinder is addressed by I.C.R. 8 and decisions
under that rule are reviewed de novo. The State also contends a motion to sever is addressed by
I.C.R. 14 and decisions under that rule are reviewed for an abuse of discretion. Moreover, the
State argues that joinder was proper under I.C.R. 8 because the charges in Nava’s complaint
were part of a common scheme or plan and that under I.C.R. 14, Nava was not unduly
prejudiced.
A.     Motions to Sever Are Reviewed for an Abuse of Discretion; Motions to Join Are
       Reviewed De Novo
       The language of I.C.R. 8 and I.C.R. 14 identify two different standards of review. Idaho
Criminal Rule 8(a) reads:
       Two or more offenses may be charged on the same complaint, indictment or
       information if the offenses charged, whether felonies or misdemeanors or both,
       are based on the same act or transaction or on two or more acts or transactions
       connected together or constituting parts of a common scheme or plan. The
       complaint, indictment or information must state a separate count for each offense.
       In order to establish a common scheme or plan, two or more crimes must be “so related
to each other that proof of one tends to establish the other.” State v. Orellana-Castro, 158 Idaho
757, 762, 351 P.3d 1215, 1220 (2015); State v. Joy, 155 Idaho 1, 9, 304 P.3d 276, 284 (2013).
The “events of a common scheme or plan ‘must be linked by common characteristics that go
beyond merely showing a criminal propensity and instead must objectively tend to establish that
the same person committed all the acts.’” State v. Sanchez, 161 Idaho 727, 730, 390 P.3d 453,
456 (Ct. App. 2017) (quoting State v. Johnson, 148 Idaho 664, 668, 227 P.3d 918, 922 (2010)).
       Whether joinder is permissible under I.C.R. 8 often cannot be determined from the face
of the charging document because charging documents are only required to set forth the essential
facts showing commission of an offense. Orellana-Castro, 158 Idaho at 760, 351 P.3d at 1218;
State v. Comer, 162 Idaho 661, 663, 402 P.3d 1114, 1116 (Ct. App. 2017); Sanchez, 161 Idaho at

                                                3
730, 390 P.3d at 456. “However, in reviewing whether initial joinder was proper, the appellate
court considers what was alleged by the State, not what the proof at trial ultimately showed.”
Comer, 162 Idaho at 663, 402 P.3d at 1116; Sanchez, 161 Idaho at 730, 390 P.3d at 456; see also
State v. Field, 144 Idaho 559, 565, 165 P.3d 273, 279 (2007).
       Whether offenses are improperly joined pursuant to I.C.R. 8 is a question of law, over
which this Court exercises free review. Orellana-Castro, 158 Idaho at 759, 351 P.3d at 1217;
Field, 144 Idaho at 564, 165 P.3d at 278; State v. Comer, 162 Idaho at 663, 402 P.3d at 1116;
Sanchez, 161 Idaho at 730, 390 P.3d at 456. This standard of review can be traced back to State
v. Anderson, 138 Idaho 359, 361, 63 P.3d 485, 487 (Ct. App. 2003) and its citation to United
States v. Lane, 474 U.S. 438, 449 n.12 (1986) and State v. O'Neill, 118 Idaho 244, 245, 796 P.2d
121, 122 (1990). This Court invoked Lane for the proposition that the federal joinder rule is
reviewed de novo and invoked O’Neill for the proposition that, generally, questions of law are
reviewed de novo in Idaho.
       Concerning motions to sever, I.C.R. 14 reads:
       If it appears that a defendant or the state is prejudiced by a joinder of offenses or
       of defendants in a complaint, indictment or information, the court may order the
       state to elect between counts, grant separate trials of counts, grant a severance of
       defendants, or provide whatever other relief justice requires. In ruling on a
       motion by a defendant for severance the court may order the attorney for the state
       to deliver to the court for inspection in camera any statements or confessions
       made by the defendants that the state intends to introduce in evidence at the trial.
       A district court’s decision under I.C.R. 14 is reviewed on appeal under an abuse of
discretion standard. Orellana-Castro, 158 Idaho at 760, 762, 351 P.3d at 1218, 1220; Field, 144
Idaho at 564, 165 P.3d at 278.            This standard of review can be traced back to
State v. Abel, 104 Idaho 865, 867, 664 P.2d 772, 774 (1983) where the Idaho Supreme Court
adopted the abuse of discretion standard after surveying eight states which review a district
court’s decision on a motion to sever for an abuse of discretion.            When a trial court’s
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry
to determine whether the lower court correctly perceived the issue as one of discretion, acted
within the boundaries of such discretion, acted consistently with any legal standards applicable to
the specific choices before it, and reached its decision by an exercise of reason. State v. Herrera,
164 Idaho 261, 270, 429 P.3d 149, 158 (2018).



                                                 4
       Nava asserts there is confusion about the relevant standard of review because the Idaho
Supreme Court listed two different standards of review in Orellana-Castro. Nava asserts that the
Court held that review of improperly joined offenses “is a question of law, over which this Court
exercises free review.” Orellana-Castro, 158 Idaho at 759, 351 P.3d at 1217. However, the
Supreme Court also held that joinder under I.C.R. 8 under the common scheme or plan theory
would be reviewed under an abuse of discretion standard. Id. at 760, 351 P.3d at 1218. This
Court does not find this to create confusion. While I.C.R. 8 motions in Orellana-Castro may
generally be reviewed under a de novo standard, the Court specifically held that where joinder of
charges is premised upon a common scheme or plan theory. Idaho Criminal Rule 8 motions are
reviewed using an abuse of discretion standard:
       When the defendant moves for severance under Criminal Rule 14, the alleged
       prejudice is often that evidence of the defendant’s conduct which would be
       admissible in the prosecution of one offense would not be admissible under
       Evidence Rule 404(b) in the prosecution of the other offense if it were tried
       separately. In that circumstance, the analysis is the same as to whether the
       offenses are part of a common scheme or plan permitting joinder under Criminal
       Rule 8(a) and whether the defendant would be prejudiced by joinder because the
       offenses were not part of a common scheme or plan under Evidence Rule 404(b).
       Both of those decisions are reviewed on appeal under an abuse of discretion
       standard.
Orellana-Castro, 158 Idaho at 760, 351 P.3d at 1218. Thus, this Court will review a district
court’s decision using an abuse of discretion standard of review. Thus, because the court must
already use the abuse of discretion standard for the prejudice analysis in an I.C.R. 14 motion to
sever, it will use that same standard to determine if joinder pursuant to I.C.R. 8 was proper.
B.     The District Court Erred by Denying Nava’s Motion to Sever
       Although I.C.R. 8 is mentioned in its caption, the parties characterize Nava’s “Motion to
Sever for Improper Joinder Pursuant to ICR 8(a)” as a motion to sever under I.C.R. 14.
Accordingly, we review the district court’s decision to deny the motion for an abuse of
discretion.
       Like the defendant in Orellana-Castro, Nava argues that if separate trials were held,
J.L.R.’s testimony would not be admissible in J.R.R.’s trial under Idaho Rule of Evidence 404(b)
and vice versa. As Orellana-Castro states, I.C.R. 14’s prejudice consideration is the same as the
consideration of whether the offenses are part of a common scheme or plan permitting joinder
under I.C.R. 8. Orellana-Castro, 158 Idaho at 760, 351 P.3d at 1218.


                                                  5
       The Orellana-Castro Court went on to discuss three Idaho Supreme Court cases relevant
to the inquiry into whether various sexual abuse charges are sufficiently similar to constitute
evidence of a common scheme or plan. First, in State v. Schwartzmiller, 107 Idaho 89, 93, 685
P.2d 830, 834 (1984), the Court held that the district court properly joined the charges of sexual
abuse against two different fourteen-year-old male victims into a single trial.         The Court
reasoned that although the acts took place at different times and with different people, the facts
demonstrated that the defendant had a common plan. Id. The Court explained that the defendant
“frequents areas where young boys may be found, befriends boys with no father figure in the
home, entices them from their homes, lowers their natural inhibitions through the use of drugs
and alcohol, and commits sex acts upon them.” Id. Given these similarities, the Court affirmed
the joinder on the basis of a common scheme or plan. Id.
       In Field, the Court held that facts alleged by the State were insufficient to demonstrate a
common scheme or plan. Field, 144 Idaho at 566-67, 165 P.3d at 280-81. There, the district
court granted the State’s motion to join a 2003 charge of lewd conduct against a seven-year-old
victim with a 2001 charge of sexual battery against a seventeen-year-old victim. Id. at 563-64,
165 P.3d at 277-78. The Supreme Court rejected the State’s argument that the two offenses were
connected as part of the defendant’s common scheme or plan to take advantage of underage
females who came into his home to babysit or be babysat. Id. at 566, 165 P.3d at 280. The
Court found it significant that the victims’ ages were different, the type of sexual contact was
different, and the incidents occurred two years apart. Id. The Court acknowledged the
similarities in the cases--that both girls were only temporarily in the household, the acts occurred
in the defendant’s home, and the abuse began with “innocent” touching--but the Court found
those similarities insufficient to prove a common scheme or plan. Id. at 566-67, 165 P.3d at 280-
81.
       Finally, in Johnson, the Court again held that the facts alleged by the State were
insufficient to demonstrate a common plan or scheme. Johnson, 148 Idaho at 669, 227 P.3d at
923. There, the defendant was charged with abusing his six or seven-year-old daughter. Id. at
666, 227 P.3d at 920. During trial, the district court admitted evidence of the defendant’s
previous, uncharged sexual conduct with his younger sister as evidence of a common scheme or
plan under I.R.E. 404(b). Id. The State maintained that the conduct with the sister was similar to
the charged offense in that: “(1) both victims were about seven to eight years old; (2) both

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victims viewed Johnson as an ‘authority figure’ because he was an older brother or father; [and]
(3) both courses of conduct involved Johnson requesting the victim to touch his penis.” Id. at
669, 227 P.3d at 923. Acknowledging these similarities, the Supreme Court nevertheless held
that the facts were insufficient to demonstrate a common scheme or plan. Id. The Court
explained:   “These similarities, however, are sadly far too unremarkable to demonstrate a
‘common scheme or plan’ in [the defendant’s] behavior. The [fact] that the two victims in this
case are juvenile females and that [the defendant] is a family member are precisely what make
these incidents unfortunately quite ordinary.” Id.
       We consider the facts as alleged by the State in support of its objection to Nava’s motion
to sever to determine if the evidence was sufficient to demonstrate a common scheme or plan.
We will also consider the allegations contained in the State’s charging document, the arguments
made by the State during the hearing on the motion to sever, and the evidence and arguments
presented by Nava at the hearing. See Orellana-Castro, 158 Idaho at 760, 351 P.3d at 1218;
Comer, 162 Idaho at 665, 402 P.3d at 1118; Sanchez, 161 Idaho at 731, 390 P.3d at 457.
        The State maintains that the offenses committed by Nava against the two victims had
sufficient common elements which constituted part of a common scheme or plan. The State
alleged the following common elements: (1) the acts took place in the same, 48-hour time period
and at the same time of night; (2) the victims were the same gender and of the same age; (3) the
acts took place in J.R.R.’s living room where several other people were sleeping; and (4) Nava
demonstrated grooming behaviors with J.R.R. and J.L.R, such as making inappropriate
comments about their bodies and giving them preferential treatment over their siblings through
gifts and special activities. Nava alleged he was romantically interested in J.R.R.’s mother, not
the girls; his nephew did not see Nava act differently toward the girls than the other children; and
overall, there were not sufficient facts to demonstrate a common scheme or plan.
       The refusal to sever the joined charges in Nava’s case was improper because, as
in Johnson and Field, the similarities in the charged conduct and the victims were too
unremarkable to imply a common scheme or plan. Unlike Schwartzmiller, where the defendant
took affirmative steps to target, select, and entice his victims, Nava’s conduct more accurately
evidences an opportunistic tendency that is unfortunately entirely unremarkable in sexual abuse
cases. There is no evidence in the record that Nava embarked upon his relationship with J.R.R.’s
mother in order to abuse her twelve-year-old daughter and niece. Nor, is there any evidence that

                                                 7
proof of the abuse of J.R.R. tends to establish the abuse of J.L.R. Additionally, the proffered
evidence of grooming behaviors--that Nava (1) told one of the girls, “You look cute today,”
commented on the other girl’s breasts by expressing that men find them attractive, and told both
girls of their general attractiveness; and (2) gave the girls preferential treatment over their
siblings through trips to a coffee shop--does not rise to the level of targeting as shown in
Schwartzmiller. Rather, the evidence alleged by the State did not extend beyond showing a
criminal propensity to opportunistically abuse young females. As in Field and Johnson, the
proffered evidence of similar age, location, and time frame are insufficient, without more, to
demonstrate a common scheme or plan. Therefore, denying Nava’s motion to sever was an
abuse of the district court’s discretion.
C.      Any Error Was Not Harmless
        Having found error in the refusal to sever the charges, the potential exists that the jury
heard inadmissible evidence. The State contends that even if joinder was improper because the
evidence did not establish a common scheme or plan, the evidence would nevertheless have been
admissible in separate trials under I.R.E. 404(b) to show opportunity and, therefore, the error was
harmless. Error is not reversible unless it is prejudicial. State v. Stoddard, 105 Idaho 169, 171,
667 P.2d 272, 274 (Ct. App. 1983). With limited exceptions, even constitutional error is not
necessarily prejudicial error. Id. Thus, we examine whether the alleged error complained of in
the present cases was harmless. See State v. Lopez, 141 Idaho 575, 578, 114 P.3d 133, 136 (Ct.
App. 2005).
        It is well established that evidence of other crimes, wrongs, or acts is not admissible to
prove a defendant’s criminal propensity. I.R.E. 404(b). However, evidence of other crimes,
wrongs, or acts may be admissible for a purpose other than to show propensity, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident. State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct. App. 2002).               In
determining admissibility of other bad acts, the Supreme Court utilizes a two-tiered
analysis. State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185, 1188 (2009). The first tier involves
the following two-part inquiry: (1) whether there is sufficient evidence to establish the other bad
acts as fact; and (2) whether the other bad acts are relevant to a material disputed issue
concerning the crime charged, other than propensity. Id. The second tier requires the balancing



                                                8
test under I.R.E. 403 of whether the probative value of the evidence is substantially outweighed
by unfair prejudice. Grist, 147 Idaho at 52, 205 P.3d at 1188.
       At the hearing on Nava’s motion to sever, the State argued that Nava put the matter of
opportunity at issue when Nava told an officer “he did not understand how this incident could
have occurred since there were so many people there that had anything happened, everyone
would have woken up.” The State argued that the victims’ testimonies would be probative of the
veracity of Nava’s statement denying opportunity and thereby would be admissible if the victims
were to have separate trials.
       We agree that although the State’s proffered evidence was not admissible to show a
common scheme or plan, it was probative of opportunity. Evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.”
I.R.E. 401. Evidence that Nava, while sleeping in the living room at J.R.R.’s home, sexually
abused one victim each night even when he was surrounded by other sleeping people in that
room, may show a probability that he had sufficient opportunity to commit the crime. See State
v. Gomez, 151 Idaho 146, 155, 254 P.3d 47, 56 (Ct. App. 2011).
       However, concluding that the evidence is relevant to show opportunity does not end our
inquiry. Under the second part of the test, relevant evidence “may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice.” I.R.E. 403. Evidence is not
unfairly prejudicial simply because it is damaging to a defendant’s case. State v. Floyd, 125
Idaho 651, 654, 873 P.2d 905, 908 (Ct. App. 1994). Evidence is unfairly prejudicial when it
suggests a decision on an improper basis. State v. Ruiz, 150 Idaho 469, 471, 248 P.3d 720, 722
(2010). Specific to child sexual abuse cases, the Idaho Supreme Court has noted that the
admission of other sexual abuse evidence carries a significant risk that jurors will act on a “belief
that sexual deviancy is a character trait of especially powerful probative value for predicting a
defendant’s behavior.” Field, 144 Idaho at 569-70, 165 P.3d at 283-84. This Court has noted
that risk is even greater where no physical evidence will be presented and the case will hinge on
the victim’s testimony. Sanchez, 161 Idaho at 733-34, 390 P.3d at 459-60.
       Here, the State proffered no physical evidence to corroborate either victim’s testimony.
Had each victim’s claims been tried separately, the outcome of each case would have hinged
entirely on the jury finding that particular victim’s testimony credible. Additional testimony

                                                 9
from another sexually abused child would have carried an especially high risk of infecting the
trial by enhancing each victim’s credibility. See Orellana-Castro, 158 Idaho at 763, 351 P.3d at
1221 (“The existence of two accusers would enhance their credibility.”). Despite the potentially
probative value of the evidence of an additional victim to demonstrate opportunity, the
overwhelming effect of the evidence would have emphasized Nava’s propensity to commit sex
crimes. Thus, we conclude that the prejudicial nature of the evidence substantially outweighed
its probative value. Therefore, the evidence, in addition to not constituting a common scheme or
plan, would also not be admissible on the alternative ground pursuant to I.R.E. 404(b) to prove
opportunity. Consequently, the denial of Nava’s motion to sever the charges was not harmless.
                                              III.
                                       CONCLUSION
       The district court abused its discretion by denying Nava’s motion to sever. Thus, the
judgment of conviction is vacated, and the case is remanded for proceedings consistent with this
opinion.
       Chief Judge GRATTON and Judge LORELLO CONCUR.




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