                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 40682

STATE OF IDAHO,                                    )
                                                   )     2014 Opinion No. 80
       Plaintiff-Respondent,                       )
                                                   )     Filed: September 29, 2014
v.                                                 )
                                                   )     Stephen W. Kenyon, Clerk
ANTHONY EDWARD ORTEGA,                             )
                                                   )
       Defendant-Appellant.                        )
                                                   )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Deborah A. Bail, District Judge.

       Judgment of conviction for two counts of felony injury to a child, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant. Reed P. Anderson argued.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent. Jessica M. Lorello argued.
                 ________________________________________________
SCHWARTZMAN, Judge Pro Tem
       Anthony Edward Ortega was convicted of two counts of felony injury to a child. He
argues that the court erred in two respects. First, he claims that the court impermissibly allowed
the State to present evidence of his prior abusive conduct toward very young children. Second,
he claims that the court erred by failing to instruct the jury that reasonable parenting efforts could
not be the basis of an injury to a child charge. We affirm the judgment of conviction.
                                                  I.
                                         BACKGROUND
       Ortega was charged with two counts of felony injury to a child, Idaho Code § 18-1501(1).
The first charge alleged that Ortega caused his two-year-old child, A.O., to suffer a spiral
fracture of the humerus bone; the second alleged that Ortega struck or hit the child on his
buttocks, abdomen, and chest.



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       Before trial, the State filed notice of its intent to adduce evidence of Ortega’s prior
abusive parenting to “rebut any claim of accidental touching.” At a pretrial conference, the
parties made clear that they disputed the admissibility of that evidence and the State indicated
that it intended to introduce additional prior bad act evidence beyond those acts described in its
motion. The court decided that the evidence described in the State’s initial filing was admissible
and scheduled another pretrial hearing to address the additional evidence. In response, Ortega
filed a motion to reconsider, arguing that the evidence was not relevant and was prejudicial. The
court considered the admissibility of all the prior bad act evidence at the second pretrial hearing.
It ruled that the evidence was relevant because it could “establish a pattern . . . that is relevant to
the resolution of the issues in this case.” It also ruled that the probative value of the evidence
substantially outweighed any prejudicial effect.       On these grounds, the court held that the
evidence could be admitted.
       The case proceeded to a jury trial. In opening statements, both the State and Ortega
framed the case as a dispute over the cause of the child’s injuries. The State asserted that Ortega
was an impatient father who disciplined his two-year-old son very harshly, while Ortega
maintained that the injuries resulted from accidents or other noncriminal causes.
       The State called several witnesses whose testimony included Ortega’s contemporaneous
descriptions of how A.O. was injured. Each testified that Ortega claimed that the injury to the
child’s arm was accidental, resulting from the child falling or being accidentally dropped when
being taken out of his car seat. The State attempted to rebut Ortega’s account through medical
testimony and by referring to Ortega’s prior conduct.
       Two physicians testified regarding the arm injury, the emergency room treating physician
and the Medical Director of Children at Risk Evaluation Services (CARES). The treating
physician testified that the spiral fracture was not a typical result of a fall because that injury
usually indicates twisting. Moreover, a falling person, especially one who breaks his arm,
usually strikes the ground with his palms down. A.O. had no injuries on his hands despite falling
onto pavement. Finally, the physician observed an abrasion or contusion circling the child’s
arm, which would not have resulted from a fall. The CARES doctor testified that the child’s arm
injury was not consistent with a fall. Based upon these observations, the doctor concluded that:
               The amount of force that [it] would have taken to cause that kind of
       fracture is more than if you were just picking your child up by under the arm or
       elbow during normal play or normal care.

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              The amount of force required to cause such an injury is enough that a
       reasonable person would know that they could harm the child.

       The CARES doctor also testified regarding the injuries to the child’s buttocks. He noted
that toddlers frequently bruise while they learn to walk and that the minor bruising on the child’s
shins was typical. However, a toddler’s exhibiting bruising of the buttocks and chest is not
typical. Normal play or toddler activities would not cause the extensive bruising on the child’s
buttocks. For example, a toddler scooting down a flight of stairs on his buttocks, even roughly,
would not result in that bruising. Moreover, the physician opined that the bruising looked
patterned. Based upon these observations, he concluded that “a significant amount of force
would have had to have been used to cause those bruises.”
       The State also called three of the child’s extended family members to testify regarding
Ortega’s prior abusive parenting. The child’s maternal grandmother had previously observed
bruising on the child’s buttocks. Ortega admitted that he had spanked the child too hard and the
grandmother had told Ortega to stop spanking so hard. Later, Ortega claimed that some bruising
was caused when the child was placed onto an adult-sized toilet during potty-training. The
grandmother gave Ortega a smaller, padded device that should have ameliorated the issue, but
the child’s buttocks were more extensively bruised when he was examined in the hospital after
using the device.
       The grandmother’s boyfriend testified that he had observed three violent outbursts by
Ortega toward very young children. First, after seeing A.O. bite another child, Ortega slapped
A.O. so hard that his lips and gums bled. Second, Ortega disciplined another young boy by
grabbing him by the neck, hard enough to leave a visible red mark. This incident was so severe
that the boyfriend threatened Ortega with physical violence. Third, the boyfriend saw Ortega
grab A.O. by the arm and “snap him around” in a quick, jerking motion.
       Finally, A.O.’s great-grandmother testified that she had observed Ortega disciplining the
two-year-old child for being too loud in a shoe store. Ortega chose to discipline the child by
grabbing and holding his nose so tightly that he left a red mark.
       Ortega chose not to testify at trial. His defense predominantly consisted of several
witnesses who testified that he was a good father. For example, a high school friend, who had
seen Ortega interact with his son on only a single occasion, testified that A.O. seemed happy
around Ortega. A former girlfriend testified that, for the one-month period she was around both


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Ortega and the child, Ortega was a “great dad,” that he never physically disciplined A.O. in her
presence, and that the child had no significant bruising.
       After the close of evidence, the court held a brief hearing regarding jury instructions. As
is relevant here, the court considered Ortega’s previously-deferred motion requesting a jury
instruction based on language in State v. Peters, 116 Idaho 851, 855, 780 P.2d 602, 606 (Ct.
App. 1989). Ortega provided the full text of his proposed instruction:
               The State of Idaho recognizes that a parent may punish a child using a
       reasonable amount of force to safeguard and promote the child’s welfare. A
       parent may punish a minor child for wrongdoing so long as such punishment is
       for this beneficial purpose. The punishment must not be excessive and the degree
       of harm to the child must not exceed what is commonly viewed as reasonable in
       light of the circumstances.

The district court rejected the proposed instruction and instead gave the model Idaho Criminal
Jury Instruction describing the elements of the offense as follows:
              In order for the Defendant to be guilty of Felony Injury to a Child as
       charged in Count One, the State must prove each of the following:
              1. On or about the 20th day of April, 2012.
              2. in the state of Idaho.
              3. the Defendant, Anthony Edward Ortega.
              4. willfully caused or permitted [the child] to suffer unjustifiable physical
              pain or mental suffering, by causing a spiral fracture of the humerus bone;
              5. [the child] was under 18 years of age; and
              6. the above occurred under circumstances or conditions likely to produce
              great bodily harm or death to [the child].
              If any of the above has not been proven beyond a reasonable doubt, you
       must find the Defendant not guilty. If each of the above has been proven beyond
       a reasonable doubt, then you must find the Defendant guilty. 1

The court also instructed the jury on the meaning of willfulness:
                The word “willfully” means acting or failing to act where a reasonable
       person would know the act or failure to act is likely to result in injury or harm or
       is likely to endanger the person, health, safety or well-being of the child.


1
       The trial judge listed four reasons for her decision: First, it was not an approved Idaho
Criminal Jury Instruction. Second, the decision in State v. Peters, 116 Idaho 851, 780 P.2d 602
(Ct. App. 1989) did not require giving the instruction because it “relates to the discussion about
why the statute is not unconstitutionally vague when applied to a situation where a parent is
unprotective.” Third, the issue of reasonable parent practices was sufficiently addressed by the
model jury instruction. Fourth, any additional instruction on that issue was likely to result in
confusion.

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       During closing argument Ortega maintained, inter alia, that one need not agree with
Ortega’s parenting style to acquit because no one style of parenting is required. The State
responded by arguing that different styles of parenting are permitted, but distinguished the type
of abusive parenting it had alleged in the charging document. The jury returned guilty verdicts
on both counts. After a sentencing hearing, the court imposed a unified term of imprisonment of
fifteen years with five years fixed on each count, to run concurrently. 2
                                                   II.
                                            ANALYSIS
       Ortega appealed the judgment of conviction and maintains that the court erred by
permitting the State to adduce evidence of his prior incidents of abusive parenting and by
refusing to give his requested jury instruction.
A.     The Court Did Not Err by Admitting Prior Bad Act Evidence
       Ortega argues that the district court erred by allowing the State to adduce evidence of his
prior abusive parenting because neither mistake nor intent was implicated in the case. He also
claims that evidence was more prejudicial than probative.
       The evidence rule in question, Idaho Rule of Evidence 404(b), provides:
               Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show that the person acted in conformity
       therewith. It may, however, be admissible for other purposes, such as proof of
       motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident, provided that the prosecution in a criminal case shall file and
       serve notice reasonably in advance of trial, or during trial if the court excuses
       pretrial notice on good cause shown, of the general nature of any such evidence it
       intends to introduce at trial.

       This rule prohibits introduction of evidence of acts other than the crime for which a
defendant is charged if its probative value is entirely dependent upon its tendency to demonstrate
the defendant’s propensity to engage in such behavior. State v. Grist, 147 Idaho 49, 54, 205 P.3d
1185, 1190 (2009). See also State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct. App.
2002). Of course, evidence of a prior crime, wrong, or act may implicate a person’s character
while also being relevant and admissible for some permissible purpose, such as those listed in the
rule. See State v. Pepcorn, 152 Idaho 678, 688-89, 273 P.3d 1271, 1281-82 (2012).

2
       Ortega was sentenced as a persistent violator.

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       When determining the admissibility of evidence to which a Rule 404(b) objection has
been made, the trial court must first determine whether there is sufficient evidence of the other
acts that a reasonable jury could find the conduct actually occurred. 3 If so, then the court must
consider: (1) whether the other acts are relevant to a material and disputed issue concerning the
crime charged, other than propensity; and (2) whether the probative value is substantially
outweighed by the danger of unfair prejudice. Grist, 147 Idaho at 52, 205 P.3d at 1188; State v.
Parmer, 147 Idaho 210, 214, 207 P.3d 186, 190 (Ct. App. 2009). We exercise free review of the
trial court’s relevancy determination. State v. Sheldon, 145 Idaho 225, 229, 178 P.3d 28, 32
(2008). However, the trial court’s balancing of the probative value of the evidence against the
danger of unfair prejudice will not be disturbed unless we find an abuse of discretion. State v.
Norton, 151 Idaho 176, 190, 254 P.3d 77, 91 (Ct. App. 2011).
       1.      The evidence was relevant to a nonpropensity issue
       Ortega argues that because his intent was not at issue, the State should not have been
permitted to adduce I.R.E. 404(b) evidence to show intent. To this end, he argues that this case
is analogous to State v. Roach, 109 Idaho 973, 712 P.2d 674 (Ct. App. 1985) and distinguishable
from Parmer, 147 Idaho 210, 207 P.3d 186.
       In Roach, we concluded that intent was not at issue in a case where the defendant was
charged with lewd and lascivious conduct with a minor child. Roach, 109 Idaho at 975, 712 P.2d
at 676. Although the State had a burden to show specific intent, the required intent could be
easily inferred from the acts. Because of the nature of the alleged acts, sodomy and fellatio,
evidence that the acts occurred amounted to proof of the defendant’s intent to gratify his lust or
sexual desires. Moreover, “Roach’s defense was that he did not commit the act. He [did] not, as
well he could not, contend that he committed the act with innocent intent.” Id. Conversely, in
Parmer the defendant, in the course of providing massage services, placed a vibrator on a
victim’s inner thigh to cause sexual arousal. In that case, we held that I.R.E. 404(b) evidence
was relevant to show absence of mistake or accident or defendant’s intent, which was squarely at
issue. Parmer, 147 Idaho at 220, 207 P.3d at 196.




3
      In this case, Ortega does not challenge the prior bad acts as established facts. Therefore,
we address only the relevancy and unfair prejudice issues.


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       “[T]he admissibility of evidence of other crimes, wrongs, or acts to establish intent and
an absence of mistake or accident is well established, particularly in child abuse cases.” State v.
Hassett, 124 Idaho 357, 362, 859 P.2d 955, 960 (Ct. App. 1993) (quoting United States v.
Harris, 661 F.2d 138, 142 (10th Cir. 1981)). The proper question is not whether the jury may
use prior bad acts to determine whether specific conduct occurred, the proper question is whether
the other acts are relevant to a material and disputed issue concerning the crime charged, other
than propensity. Grist, 147 Idaho at 52, 205 P.3d at 1188. Thus, the court must determine the
basis upon which the jury could infer, from the prior bad acts adduced, that the defendant was
more likely to have committed the offense. The rule barring propensity evidence prohibits the
admission of evidence when the only logical inference to be drawn consists of nothing more than
reasoning that the defendant is a bad person, or a particular kind of bad person, and he is likely to
commit criminal offenses generally, or this type of criminal offense specifically, because of his
bad nature. Here, the evidence was properly admitted because there existed an alternative,
permissible inference.
       Idaho Rule of Evidence 404(b) permits the State to prove intent or absence of mistake or
accident by means of prior bad acts when those issues are material. Here, both issues were
material because the State was unable to produce a witness who could describe the precise means
by which A.O. was injured and because Ortega presented argument and evidence in support of
the contention that the injury was accidental. In opening remarks, Ortega argued that “accidents
can and do happen and did happen in this case.” In a recorded call to 911 emergency services,
Ortega claimed that the child slipped out of his hands accidentally.          Moreover, on cross-
examination, and in his case-in-chief, Ortega adduced evidence that he was a caring father who
would not hurt his son.
       In this case, the jury need not have reasoned that bad people do bad things because that is
their nature. Instead, it could infer that Ortega violently punished toddlers for minor infractions
and was violent toward them when frustrated; because of the prior acts, the injury caused by his
action or inaction was likely intentional and unlikely to be accidental.          That inference is
permitted under the intent and absence of mistake or accident exceptions in I.R.E. 404(b) and is
distinguished from mere propensity evidence when either intent or absence of mistake or
accident is a material and disputed issue in a case. Parmer, 147 Idaho at 220, 207 P.3d at 196.




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        2.      The probative value of the admitted evidence was not substantially
                outweighed by the danger of unfair prejudice
        Ortega argues that the I.R.E. 404(b) evidence had limited probative value and was
substantially prejudicial. We agree that there was some danger of unfair prejudice because the
evidence tended to show that Ortega was a violent person and an abusive parent. It is not
unreasonable to conclude that the average juror holds those who abuse toddlers in low esteem.
However, the evidence was probative, especially as to the second injury to a child charge.
        Above, we discussed the relevance of the prior bad acts to the broken arm charge, but
Ortega was also charged with striking or otherwise causing significant bruising to the two-year-
old child. The evidence was probative to that charge because Ortega argued he was acting as a
reasonable parent, i.e., asserting an intent defense, and the prior bad acts were particularly strong
evidence that Ortega was not acting as a reasonable parent, but was acting in an unjustifiably
violent manner. The trial court found such evidence highly relevant and close in time, such that
its probative value substantially outweighed any danger of unfair prejudice. We conclude that
the district court did not abuse its discretion in this regard.
B.      The Court Did Not Err by Refusing to Give the Requested Jury Instruction
        Ortega argues that a parent may “defend against a charge of child abuse by asserting a
defense of reasonable parenting efforts.” Further, he argues that the requested instruction was
required to inform the jury of that defense.
        Whether the jury has been properly instructed is a question of law over which we
exercise free review. State v. Severson, 147 Idaho 694, 710, 215 P.3d 414, 430 (2009). In
determining whether the trial court should have given a requested jury instruction, we must
examine the instructions that were given and the evidence adduced at trial. State v. Hoover, 138
Idaho 414, 421, 64 P.3d 340, 347 (Ct. App. 2003); State v. Fetterly, 126 Idaho 475, 476, 886
P.2d 780, 781 (Ct. App. 1994). We apply a four-part test to determine whether a requested jury
instruction should have been given:
        a requested instruction must be given where: (1) it properly states the governing
        law; (2) a reasonable view of the evidence would support the defendant’s legal
        theory; (3) it is not addressed adequately by other jury instructions; and (4) it does
        not constitute an impermissible comment as to the evidence.

Hoover, 138 Idaho at 421, 64 P.3d at 347; Fetterly, 126 Idaho at 476-77, 886 P.2d at 781-82;
State v. Evans, 119 Idaho 383, 385, 807 P.2d 62, 64 (Ct. App. 1991).


                                                    8
        Reasonable parenting efforts can be a valid defense to a felony injury to a child charge
because such conduct would not amount to an offense under the applicable law. However, a
separate jury instruction is not required because the jury will be informed of the elements of the
offense and the requirement that each element be proven before returning a guilty verdict.
        In State v. Young, 138 Idaho 370, 373, 64 P.3d 296, 299 (2002), the Supreme Court held
that the injury to a child statute required the State to prove the required mental element of
willfully causing unjustifiable physical pain. See also State v. Halbesleben, 139 Idaho 165, 170,
75 P.3d 219, 224 (Ct. App. 2003) (applying the same rule to another portion of the injury to a
child statute). There, the erroneous definition of the mens rea element was reversible error
because that incorrect instruction would allow a defendant “to be convicted even if he made a
good faith mistake.” The corollary of our holding is that a proper mens rea instruction would
preclude a conviction based upon a “good faith mistake.” Accordingly, Young stands for the
proposition that the reasonable parenting efforts defense is included within a proper mens rea
instruction.
        Despite Ortega’s contrary argument, Peters, 116 Idaho at 855, 780 P.2d at 606 provides
no basis for the giving of a special instruction. There, the defendant argued that the statute was
void for vagueness because it failed to provide adequate notice of what parental discipline is
permitted and what conduct would violate the statute. We disagreed and held that the statute was
not void for vagueness because the mens rea element limited the scope of the offense. In
essence, the mens rea included in the injury to a child statute defines the border between
reasonable parenting practices and criminal child abuse.
        Accordingly, we conclude that a defendant may properly argue that his actions amounted
to reasonable parenting efforts, but that doing so is not a distinct defense, such as self-defense;
rather, it raises a challenge to the State’s ability to prove the required mens rea element of injury
to a child. The requested instruction was not required to inform the jury of Ortega’s defense; that
defense is implicit in the instructions defining the offense. Therefore, we find no error in the
district court’s refusal to give the requested instruction.




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                                               III.
                                        CONCLUSION
       We conclude that the district court did not err in permitting the State to adduce prior bad
act evidence. We also conclude that the district court did not err by refusing to give Ortega’s
requested jury instruction. Therefore, the judgment of conviction is affirmed.
       Judge GRATTON and Judge MELANSON CONCUR.




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