               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38652

STATE OF IDAHO,                                 )     2013 Unpublished Opinion No. 535
                                                )
       Plaintiff-Respondent,                    )     Filed: June 13, 2013
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
RICHARD DAVID POKORNEY,                         )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Michael R. McLaughlin, District Judge.

       Judgment of conviction for two counts of lewd conduct with a minor under
       sixteen, affirmed.

       Greg S. Silvey, Star, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Richard David Pokorney appeals from his judgment of conviction for two counts of lewd
conduct with a minor under sixteen. For the reasons set forth below, we affirm.
                                               I.
                                  FACTS AND PROCEDURE
       Pokorney was charged with seven counts of lewd conduct with a minor under sixteen,
Idaho Code § 18-1508, stemming from allegations concerning four of his five sons. He was
appointed a public defender (Counsel), but was dissatisfied with Counsel’s performance. After
being denied substitute counsel Pokorney discharged Counsel in the middle of trial and
proceeded pro se. Pokorney was convicted of five counts of lewd conduct involving three of his
sons, but the convictions were overturned by this Court on appeal due to the improper admission
of prior acts evidence. State v. Pokorney, 149 Idaho 459, 235 P.3d 409 (Ct. App. 2010). On
retrial, the State charged Pokorney with five counts of lewd conduct involving three of his sons



                                               1
(R.P., W.P. and J.G.).     The district court again appointed Counsel to represent Pokorney.
Pokorney repeatedly requested substitute counsel from outside the public defender’s office, but
the district court refused, and Pokorney again chose to proceed to trial pro se. The jury found
Pokorney guilty of two counts of lewd conduct (Count II in regard to R.P. and Count V in regard
to W.P.), but could not reach a verdict on the remaining charges, which were dismissed without
prejudice. The district court entered a judgment of conviction, and Pokorney now appeals,
contending the district court erred in denying his motion for substitute counsel and in denying his
request to recall certain witnesses for further cross-examination and contending there was
insufficient evidence to support his convictions.
                                                 II.
                                            ANALYSIS
A.     Substitute Counsel
       Pokorney argues the district court abused its direction by refusing to appoint him
substitute counsel or, in the alternative, failing to hold a proper hearing in response to his request
for substitute counsel. The Sixth Amendment to the United States Constitution and Article I,
Section 13 of the Idaho Constitution guarantee the right to counsel. However, the right to
counsel does not necessarily mean a right to the attorney of one’s choice. State v. Lippert, 152
Idaho 884, 887, 276 P.3d 756, 759 (Ct. App. 2012); State v. Clark, 115 Idaho 1056, 1058, 772
P.2d 263, 265 (Ct. App. 1989). Nor does it entitle a defendant to a “meaningful relationship”
with his or her attorney. Morris v. Slappy, 461 U.S. 1, 13-14 (1983). It does entitle a criminal
defendant to reasonably competent counsel, State v. McCabe, 101 Idaho 727, 728, 620 P.2d 300,
301 (1980); State v. Carman, 114 Idaho 791, 793, 760 P.2d 1207, 1209 (Ct. App. 1988), but
mere lack of confidence in otherwise competent counsel is not necessarily grounds for substitute
counsel in the absence of extraordinary circumstances. McCabe, 101 Idaho at 729, 620 P.2d at
302; Lippert, 152 Idaho at 887, 276 P.3d at 759; State v. Peck, 130 Idaho 711, 713, 946 P.2d
1351, 1353 (Ct. App. 1997).
       If “good cause” is shown, the defendant is constitutionally entitled to the appointment of
new counsel. Lippert, 152 Idaho at 887, 276 P.3d at 759. Good cause includes an actual conflict
of interest; a complete, irrevocable breakdown of communication; or an irreconcilable conflict
that leads to an apparently unjust verdict. Id. Factors to be used in examining constitutional
implications of a total breakdown in communication include:            (1) whether the defendant’s


                                                    2
motion for new counsel was timely; (2) whether the trial court adequately inquired into the
defendant’s reasons for making the motion; (3) whether the defendant-attorney conflict was so
great that it led to a total lack of communication precluding an adequate defense; and (4) whether
the defendant substantially and unreasonably contributed to the communication breakdown.
United States v. Lott, 310 F.3d 1231, 1250 (10th Cir. 2002); Lippert, 152 Idaho at 887, 276 P.3d
at 759. A defendant may not manufacture good cause by abusive or uncooperative behavior.
Lippert, 152 Idaho at 887, 276 P.3d at 759.
       Absent a constitutional entitlement, the issue is one of discretion. I.C. § 19-856; Clark,
115 Idaho at 1058, 772 P.2d at 265. 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 consistently 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).
       In cases of both the constitutional and discretionary grant of substitute counsel, the trial
court must afford the defendant a full and fair opportunity to present the facts and reasons in
support of a motion for substitution of counsel after having been made aware of the problems
involved. State v. Clayton, 100 Idaho 896, 898, 606 P.2d 1000, 1002 (1980); Lippert, 152 Idaho
at 887, 276 P.3d at 759. It must conduct a meaningful inquiry to determine whether a defendant
possesses good cause for his or her request for substitute counsel. Lippert, 152 Idaho at 887, 276
P.3d at 759. Specifically, the district court must make some reasonable, nonsuggestive efforts to
determine the nature of the defendant’s complaints and to apprise itself of the facts necessary to
determine whether the defendant’s relationship with his or her appointed attorney has
deteriorated to the point that sound discretion requires substitution or even to such an extent that
his or her Sixth Amendment right would be violated but for substitution. Lippert, 152 Idaho at
887, 276 P.3d at 759.       Even when the trial court suspects the defendant’s requests are
disingenuous and designed solely to manipulate the judicial process and to delay the trial,
perfunctory questioning is not sufficient. Id.
       Pokorney’s involvement with Counsel began prior to his first trial, during which time
Pokorney repeatedly requested appointment of substitute counsel and the district court denied the
requests. He subsequently discharged Counsel in the middle of trial and proceeded pro se. After


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Pokorney’s judgment of conviction was overturned on his first appeal to this Court and the case
was remanded, he was again appointed the same attorney. At a pre-trial hearing on August 12,
2010, Pokorney moved that substitute counsel be appointed, specifically requesting an attorney
from outside the public defender’s office on the basis of “ineffective counsel, obstruction, denial
of evidence, willful sabotage, on and on [sic].” The district court instructed him to write a letter
outlining his concerns and said that a hearing would be held on the motion.
       A hearing was held on Pokorney’s request for substitute counsel on August 20. The
district court indicated it had not received Pokorney’s letter and Pokorney stated he had it with
him and was not aware he was supposed to deliver it prior to the hearing. When the district court
asked to see the letter, Pokorney indicated he withdrew his motion for substitute counsel and
wanted to assert his right to proceed pro se. Upon further questioning by the district court it was
clarified that Pokorney continued to stand by his request for substitute counsel, and he asserted
he had a conflict with Counsel. When asked, Counsel stated he did not have a conflict that
would inhibit his ability to represent Pokorney and reaffirmed his past indications that he had
conducted discovery, investigated the case, had the assistance of an investigator on the case, and
was prepared to meet with Pokorney on a regular basis to prepare for trial.
       Upon questioning by the court, Pokorney described a particular threat he believed
Counsel made:
                He told me that during the course of the [first] trial while in a side room,
       that if I continued to question . . . one of the witnesses, that you had told him that
       he would be reassigned to be the attorney and that my right to represent myself
       would be taken away, and that he would, quote, make sure that I spent the rest of
       my life in prison.

Counsel denied making such a statement. Pokorney also complained that, during their first
meeting eight months before the first trial and before any investigation commenced, Counsel
“threatened” him by asking about the proper clothing size for Pokorney to wear at trial, which
Pokorney interpreted as Counsel’s indication that the case was “definitely going to trial” when
most cases do not. Counsel denied it was his intent to “scare” or “threaten” Pokorney, but rather
to prepare for trial. Pokorney indicated he had many additional conflicts with Counsel. At that
point, the district court suspended the hearing and ordered a competency evaluation based on
“grave concerns” about Pokorney’s competency to proceed.



                                                 4
       The next hearing was held on September 24, during which the district court noted the
psychological evaluator determined Pokorney was competent to proceed. The court then noted it
had received two detailed documents from Pokorney outlining his complaints regarding Counsel,
the first a letter to Counsel dated August 17, 2010, and the second a document entitled “Request
for Counsel,” filed with the court on September 24, 2010. The gist of these documents was that
Pokorney believed Counsel acted ineffectively in regard to his first trial, to a degree that
Pokorney accused him of “colluding” with the prosecution. When asked whether he had any
additional complaints regarding Counsel, Pokorney said no. Counsel denied the allegations in
the letters, and the court made the following ruling:
       [The Court]: Again, based upon the representations that were made to the court
                    earlier, and that was just shortly before the court requested that
                    there be a mental health evaluation . . . [and] based upon the letters
                    that I have reviewed, and keeping in mind it is the province and the
                    duty of the court to review the allegations, I cannot find at this time
                    that [Counsel’s] representation of Mr. Pokorney in the prior
                    proceedings was deficient or was ineffective or was incompetent.
                    In fact, to the contrary.
                             I will also find that [Counsel] does not have a conflict in
                    representing Mr. Pokorney in future proceedings. It is clear from
                    these letters that Mr. Pokorney has a conflict with [Counsel]
                    representing him.
                             However, that’s not the standard. The standard is, is there a
                    conflict that would prevent counsel from representing defendant,
                    or have there been statements or actions by defense counsel that
                    rise to the level that a defendant cannot, based upon those specific
                    actions or comments--cannot have a level of confidence, a level
                    of--well, the level of confidence in the defense counsel?
                             By that, I mean, though I have reviewed all of these
                    statements you’ve made, there is nothing in those that show to this
                    court--
       [Pokorney]: But--
       [The Court]: Just let me finish. I’m making my ruling, Mr. Pokorney. That
                    [Counsel] either through statements made to you or actions taken
                    by him, demonstrate any bias or prejudice against you, the crime
                    that brings you before the court.
                             So the option is this: If you would like to have an attorney
                    represent you, if it’s going to be an appointed attorney, it would be
                    [Counsel].
       [Pokorney]: And that’s not acceptable.
       [The Court]: Okay. Then if you would like to hire your own attorney, you can.
                    If you cannot afford to hire an attorney, then I will go through a
                    series of questions with you about representing yourself.

                                                 5
       After the district court informed Pokorney of the various disadvantages of representing
himself, the following exchange occurred:
       [Pokorney]:  What I don’t understand is why you don’t appoint conflict
                    assistance.
       [The Court]: Sometimes I don’t articulate very well, Mr. Pokorney, but I found
                    there is no basis for conflict counsel, based upon the totality--
       [Pokorney]: I just--we didn’t have a hearing. You read my letter but we never
                    talked about it.
       [The Court]: I asked you if you had any additional matters that you wished to
                    bring to the court’s attention.
       [Pokorney]: I know, but we never talked about the matters that I did bring to
                    your attention that were written in the letter. We were supposed to
                    discuss why [Counsel] didn’t bring up the fact that a felony--
       [The Court]: Sir, I read those letters. And taking every bit of it as true, I cannot
                    find there is a basis to remove [Counsel] as your appointed
                    counsel.
                    ....
                             That’s my ruling. Now, I am not going to have any further
                    discussion with you. I made my ruling, and if you chose to
                    challenge that ruling, you are certainly welcome to do so with a
                    higher court.

Pokorney continued to renew his request for conflict counsel at various stages of trial, with the
court continuing to reaffirm its ruling above.
       Initially, we note the district court’s decision denying Pokorney’s motion does not clearly
and accurately set forth the proper standard. However, it is well-settled that where a ruling in a
criminal case is correct, though based upon an incorrect reason (or in this case an incomplete
reason), it still may be sustained upon the proper legal theory. State v. Pierce, 107 Idaho 96,
102, 685 P.2d 837, 843 (Ct. App. 1984). First, it is evident from the record that Pokorney was
afforded a full and fair opportunity to present the facts and reasons in support of a motion for
substitution of counsel. The district court held a second hearing on the issue after the first was
continued upon the district court’s belief that Pokorney’s competence needed to be assessed.
Pokorney (repeatedly) expressed his dissatisfaction with Counsel’s representation to the district
court when given the opportunity to speak and filed with the court his letter to Counsel and a
document entitled “Request for Counsel,” both of which set forth in great detail the basis for
Pokorney’s dissatisfaction with Counsel, and which the court indicated it reviewed. At the



                                                 6
hearing, the district court took pains to ascertain Pokorney’s true desire when it appeared
Pokorney was withdrawing his motion for substitute counsel in order to proceed pro se, and then
when the court was satisfied Pokorney was still requesting substitute counsel, asked Pokorney
for examples of the alleged “threats” made by Counsel. The district court also asked Counsel
whether a conflict existed, as well as whether the “threats” asserted by Pokorney were actually
made. Prior to making its oral ruling, the district court asked Pokorney whether he had any
additional complaints regarding Counsel, and Pokorney said no. A review of our case law
convinces us this comprised a sufficient inquiry into the reasons for Pokorney’s motion. For
example, in State v. Gamble, 146 Idaho 331, 336, 193 P.3d 878, 883 (Ct. App. 2008), the
defendant argued the lower court did not make the requisite inquiry into his request for substitute
counsel. We dispensed with this claim:
       [T]he record shows that on the morning of trial, counsel for Gamble informed the
       court that Gamble was not happy with his representation, and the court gave him
       the opportunity to express his concerns, which he did. The court then asked
       Gamble’s counsel about the concerns that had been raised, and following his
       comments, concluded that counsel was not unprepared for trial. This exchange
       provided Gamble with a “full and fair opportunity” to explain his reasons for
       wishing to discharge his public defender . . . .

Id. Here, Pokorney was given as much, if not more, of an opportunity to explain his reasons for
requesting substitute counsel. Accord State v. DeWitt, 153 Idaho 658, 673, 289 P.3d 60, 65 (Ct.
App. 2012) (holding a sufficient inquiry occurred where the court asked the defendant his
reasons for requesting new counsel). By contrast, in cases where we found the defendant did not
receive the requisite hearing, the defendants were given little to no opportunity to express their
grievances, and the court did not inquire as to the grievances they did express. See State v. Nath,
137 Idaho 712, 715, 52 P.3d 857, 860 (2002) (court conducted an incomplete assessment of
Nath’s motion for substitution of counsel and did not allow Nath to speak on the issue); State v.
Lippert, 145 Idaho 586, 592, 181 P.3d 512, 518 (Ct. App. 2007) (court did not inquire into
reasons after Lippert made request for substitute counsel, instead advising that Lippert “get
together” with counsel to work it out); Peck, 130 Idaho at 713-14, 946 P.2d at 1353-54 (court
threatened to have Peck removed from courtroom when Peck expressed dissatisfaction with
counsel, said Peck’s dissatisfaction was “irrelevant” and Peck did not have the authority to “fire”
counsel, and ultimately denied the motion for substitute counsel without basis). These cases are



                                                7
distinguishable from the situation here. Not only was Pokorney given the opportunity to submit
a detailed, written explanation of his reasons as well as verbally present his assertions at the
hearings, but the court specifically inquired into these reasons, asking Counsel his side of the
story and ultimately ruling specifically on these assertions in denying the motion.
       Next, we turn to Pokorney’s contention that the district court erred in denying the motion
given the state of his relationship with Counsel. His primary argument appears to be that,
because the district court told Pokorney that even “taking every bit of it as true, I cannot find
there is a basis to remove [Counsel] as your appointed counsel,” the district court erred because
if the court did, in fact, take the allegations contained in the two documents as true, substitution
of counsel would be required. If the court’s statement is taken literally, Pokorney’s assertion is,
of course, correct given that Pokorney accused Counsel of, among other things, lying to him,
threatening him, and colluding with the prosecutor. The record convinces us, however, that
examined in context, this statement by the district court was not the crux of its ruling, but rather a
misstatement made after (and distinct from) the court’s actual ruling. When the statement was
made, the district court had already made its ruling on the motion on the bases that it found no
conflict of interest preventing Counsel from continuing representation and Counsel had not
rendered incompetent performance. That the court later misspoke, after it had moved on to a
different issue (advising Pokorney of the disadvantages of continuing pro se), in response to
Pokorney’s continued questions regarding the appointment of substitute counsel, is of little
relevance to our inquiry on appeal.
       We turn to the substantive bases for denial of the motion. As mentioned previously, the
district court explicitly found there was no conflict or ineffective assistance warranting the
appointment of substitute counsel. On appeal, Pokorney contends good cause did exist because
there was a conflict of interest, 1 Counsel acted incompetently, and there was a complete
breakdown in communication between Pokorney and Counsel, the latter of which was not
specifically raised below, or addressed by the district court. As to the two bases the district court
did specifically address--conflict and competency--Pokorney argues the findings were erroneous
because the district court applied the “wrong legal standard.” This argument is unavailing


1
        Although case law indicates a conflict between the parties may exist outside an actual
conflict of interest, Pokorney’s arguments on appeal are restricted to the district court’s finding
that there was no conflict of interest and we restrict our discussion thusly.

                                                  8
because, although the district court’s oral ruling is somewhat unclear, it undertook the requisite
inquiry--whether good cause required substitution of counsel.         After reviewing Pokorney’s
letters, discussing his concerns at a hearing, and questioning Counsel as to Pokorney’s
accusations (not to mention having personally observed Counsel’s performance), the district
court determined there was no conflict and Counsel had not acted incompetently. On this basis,
it decided substitution of counsel was not required. On appeal, Pokorney does not assert any
reasons why such findings were erroneous.
       A somewhat more difficult issue is Pokorney’s argument that there existed a complete
breakdown in communication with Counsel such that he was entitled to substitute counsel. As
indicated above, the district court did not specifically address this issue (nor was it specifically
argued below); however, assuming it is properly before this Court, the record is sufficient for this
Court to resolve the issue.
       On appeal, Pokorney argues his decision to twice discharge Counsel is evidence of a
complete breakdown because “there can be no more complete or irrevocable breakdown of
communication than actually not having an attorney-client relationship anymore.” The issue is
not so clear-cut, however. Taken to its logical conclusion, such an interpretation would allow
defendants to force a finding of good cause for the substitution of counsel simply by discharging
counsel. Rather, as set forth above, whether a complete communication breakdown has occurred
and whether such a breakdown carried constitutional implications is a fact specific inquiry and
includes consideration of four factors:       (1) whether the substitution motion was timely;
(2) whether there was adequate inquiry by the district court; (3) whether a lack of
communication precluded an adequate defense; and (4) whether the defendant substantially and
unreasonably contributed to the communication breakdown. Lippert, 152 Idaho at 887, 276 P.3d
at 759. Here, the timeliness of Pokorney’s motion is not an issue since he moved for substitute
counsel almost immediately upon being appointed Counsel for the second time. In addition, we
resolved above that the district court conducted a sufficient inquiry into the issue. However,
even assuming there was a complete breakdown in communication between the parties, and it
precluded an adequate defense (since Pokorney proceeded to trial pro se), the fourth
consideration is especially problematic for Pokorney and, as we discuss below, precludes us
from finding he had a constitutional entitlement to substitute counsel in this instance.




                                                 9
        The circumstances presented here--where the defendant refuses to communicate with
counsel and/or allow counsel to represent him, but counsel is not the source of the breakdown in
communication and has not been found to have rendered incompetent representation--presents
certain complexities. On one hand, without a certain level of cooperation between a defendant
and counsel, an adequate defense is virtually impossible. However, it is also well-settled that a
defendant may not manufacture good cause by abusive or uncooperative behavior. Id. We have
no cases directly on point, and other jurisdictions have taken somewhat divergent approaches to
the issue.
        The Ninth Circuit Court of Appeals has led the way in taking a more deferential approach
to defendants’ requests for substitute counsel in cases where the request is based solely on the
defendant’s inability to get along with counsel (i.e., there is no evidence of ineffectiveness or
inappropriate behavior by counsel). See Stenson v. Lambert, 504 F.3d 873, 887 (9th Cir. 2007)
(noting the court has held on numerous occasions that a complete breakdown of communication
may occur even where counsel is providing competent representation, albeit only in “extreme”
cases). The basis of the Ninth Circuit’s stance in this regard is Brown v. Craven, 424 F.2d 1166
(9th Cir. 1970), where the defendant appealed his conviction alleging he was not adequately
represented by counsel at trial. Brown moved four times for substitute counsel after his public
defender was appointed because a dispute had arisen between them. The trial court denied each
motion and made no inquiry into Brown’s alleged conflict with his attorney. The result was that
Brown was “forced into a trial with the assistance of a particular lawyer with whom he was
dissatisfied, with whom he would not cooperate, and with whom he would not, in any manner
whatsoever, communicate.” Id. at 1169. On appeal, the Ninth Circuit noted it did not fault
defense counsel because it was understandable that counsel performed his duty “under the
gravest handicap” since Brown would not communicate with counsel. Id. at 1170. However, in
finding that the trial court did not properly inquire into the dispute, the court determined, “[T]o
compel one charged with [a] grievous crime to undergo a trial with the assistance of an attorney
with whom he has become embroiled in irreconcilable conflict is to deprive him of the effective
assistance of any counsel whatsoever.” Id.
        Similar circumstances entitling a defendant to substitute counsel were found in United
States v. Nguyen, 262 F.3d 998, 1000 (9th Cir. 2001), where a non-English speaking defendant
moved to substitute counsel after he stopped communicating with his appointed attorney at trial


                                                10
because of his belief counsel was not representing him properly and was “rude” to him. After
concluding there was no indication the defendant was not being competently represented, the
district court denied the motion. The Ninth Circuit found, among other things, it was error for
the district court to focus exclusively on the attorney’s competence without considering the
relationship between the defendant and counsel: “Even if present counsel is competent, a serious
breakdown in communications can result in an inadequate defense.” Id. at 1003. The district
court’s refusal to consider the relationship was significant in Nguyen because, as the Ninth
Circuit noted, by the time trial began, Nguyen was “left to fend for himself;” he could not confer
with his attorney about trial strategy or evidence, or have his attorney explain the proceedings.
Id. at 1004. The Ninth Circuit determined this result violated his Sixth Amendment right to
counsel. Nguyen, 262 F.3d at 1004. See also Lott, 310 F.3d at 1250 (holding that, even where
counsel is competent, “[a] defendant who cannot communicate with his attorney cannot assist his
attorney with preparation of his case, including suggesting potential witnesses to call and trial
strategies to pursue, discussing whether the defendant himself should testify, and helping
formulate other bread-and-butter decisions that can constitute the core of a successful defense”
and may require substitute counsel be appointed); United States v. Moore, 159 F.3d 1154,
1159-60 (9th Cir. 1998) (holding, with no discussion of counsel’s competency or whether the
defendant was to blame for the disintegration of their relationship, that where there was no
communication between the parties, it rose to the level of breakdown described in Brown and
required substitute counsel).
       Other courts have not been as accommodating where, although it is apparent there was a
“complete breakdown in communication” between the defendant and counsel, the blame rested
with the defendant. In United States v. Taylor, 652 F.3d 905 (8th Cir. 2011), the defendant
repeatedly expressed his dissatisfaction with counsel, arguing, among other things, that counsel
was acting ineffectively, “making him insane,” and not working in his best interest. Id. at 907.
He also filed a criminal complaint against counsel. After repeated accusations against counsel
and several instances of inappropriate behavior in the courtroom by the defendant, the defendant
eventually proceeded to trial pro se. On appeal, the Eighth Circuit noted it was “obvious there
was ‘a complete breakdown in communication’ between attorney and client.”              Id. at 909.
However, the court determined the district court did not abuse its discretion in denying substitute
counsel, given that it was the defendant who refused all contact with counsel and had employed


                                                11
every tactic he could think of to “coerce the court into appointing a new counsel with whom, the
court reasonably concluded, [the defendant] was unlikely to have any better relations.” Id.
Under such circumstances, the court noted, the Eighth Circuit and other courts “have sensibly
declined” to find an abuse of discretion. Id. The defendant “was not entitled to new counsel if
his refusal to cooperate with [counsel] was simply a ‘stonewalling effort to select counsel of his
own choice.’” Id. (quoting United States v. Horton, 845 F.2d 1414, 1418 (7th Cir. 1988)).
“Properly viewed,” the court concluded, “this was not a breakdown of communication requiring
appointment of new counsel, only an unwillingness on [the defendant’s] part to communicate
with appointed counsel.” Id. (emphasis added).
       Similarly, in United States v. Simpson, 645 F.3d 300, 308 (5th Cir. 2011), even assuming
there existed a complete breakdown in communication between the defendant and counsel, the
Fifth Circuit found it did not warrant reversal of the defendant’s conviction where the breakdown
in communication was attributable to “the defendant’s intransigence, and not to the neglect of
defense counsel or the trial court.” Interestingly, like in this case, there were questions as to the
defendant’s competency, leading the court to acknowledge the breakdown in attorney-client
communication was “intertwined” with the issue of the defendant’s competency. Id. However,
the court concluded that because the defendant was adjudged competent, it was reasonable to
conclude he was at least capable of cooperating with his lawyers, “and was only engaging in a
ruse, at least in part, to ‘demand a different appointed lawyer.’” Id. Cf. Lott, 310 F.3d at
1249-50 (finding a complete breakdown in communication warranting substitution of counsel
where the defendant’s repeated efforts failed to establish contact with his attorney); United States
v. Mullen, 32 F.3d 891, 896-97 (4th Cir. 1994) (finding there was a complete breakdown in
communication warranting substitution of counsel where the attorney had no communication
with the defendant in the month preceding trial).
       We find the reasoning of the latter two cases--that a defendant cannot, by his own
intransigence, manufacture a communications breakdown requiring appointment of substitute
counsel--to be more persuasive. Here, Pokorney refused to cooperate with Counsel, eventually
discharging him, for what can essentially be boiled down to an assertion that Counsel was acting
incompetently; however, the district court specifically found Counsel had not acted
incompetently.    Thus, it was Pokorney, and not Counsel, who created the communication
breakdown by refusing to work with Counsel on an unreasonable basis (given the district court’s


                                                 12
finding). To find substitution of counsel is constitutionally required under such circumstances
would open the floodgates for defendants, unhappy with appointed counsel, to simply refuse to
communicate with counsel. The district court did not err in refusing to appoint substitute counsel
in this instance.
B.      Sufficiency of the Evidence
        Pokorney contends the evidence at trial was insufficient to support both convictions for
lewd conduct with a minor under sixteen. Specifically, he contends there was insufficient
evidence to support a finding that he engaged in touching with the requisite intent. Appellate
review of the sufficiency of the evidence is limited in scope. A finding of guilt will not be
overturned on appeal where there is substantial evidence upon which a reasonable trier of fact
could have found the prosecution sustained its burden of proving the essential elements of a
crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099,
1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App.
1991). We will not substitute our view for that of the trier of fact as to the credibility of the
witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn
from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683,
684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light
most favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson,
121 Idaho at 104, 822 P.2d at 1001.
        Lewd conduct consists of any lewd or lascivious act upon the body of a child “done with
the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires” of the
defendant, the victim, or a third party. I.C. § 18-1508. Where specific intent is an essential
element of the crime, as in this case, direct evidence of such intent is not required. State v.
Marsh, 141 Idaho 862, 867, 119 P.3d 637, 642 (Ct. App. 2004); State v. Norton, 134 Idaho 875,
880, 11 P.3d 494, 499 (Ct. App. 2000). Instead, such intent may be proven through the use of
circumstantial evidence, such as evidence of the defendant’s acts, conduct, and surrounding
circumstances. Marsh, 141 Idaho at 867, 119 P.3d at 642; Norton, 134 Idaho at 880, 11 P.3d at
499.
        In regard to Count II, the information charged Pokorney with having genital-to-genital
contact with R.P. At trial, R.P. testified Pokorney rubbed his genitals on R.P.’s genitals while
R.P. (six or seven years old at the time) was sleeping in Pokorney and his wife’s bed. On appeal,


                                               13
Pokorney contends there was insufficient evidence to prove he had the requisite intent because
there was no evidence presented that he was “awake or conscious while allegedly” committing
the act; thus, he contends, “[T]here is no evidence that the act was willful and/or that it was done
with the intent to appeal to anyone’s sexual desire.” The State was not required to present direct
evidence that Pokorney was conscious of his act.           Rather, it has been held on numerous
occasions that a fact-finder may infer from the sexual acts the requisite intent. See State v.
Parkinson, 128 Idaho 29, 38, 909 P.2d 647, 656 (Ct. App. 1996) (concluding a rational jury
could infer that the defendant had the requisite intent from the victim’s testimony that the
defendant came to her bed and fondled her on three different occasions); State v. Matthews, 124
Idaho 806, 814, 864 P.2d 644, 652 (Ct. App. 1993) (concluding a rational jury could infer that
the defendant had the requisite intent from testimony from three children that the defendant
touched them inappropriately while they were playing); State v. Bronson, 112 Idaho 367, 369,
732 P.2d 336, 338 (Ct. App. 1987) (holding there was sufficient evidence concerning the
requisite intent where the defendant admitted the acts and the victim disputed the defendant’s
characterization of the touching as “teaching”). Based on R.P.’s testimony of the act, the jury in
this case was within its prerogative to conclude Pokorney acted willfully with the requisite
intent.
          In regard to Count V, the information charged Pokorney with having manual-to-genital
contact with W.P. W.P. testified at trial that Pokorney fondled W.P.’s genitals with his hands
and W.P. believed it constituted sexual contact. Pokorney contends that because W.P. answered
“no” when Pokorney asked W.P. at trial whether Pokorney “was using you for sex” and if
Pokorney “was getting off on touching” W.P., the requisite intent was not proven. Pokorney’s
contention is, again, unavailing. W.P.’s characterization of Pokorney’s intent is not controlling
(and even if it was, his testimony was contradictory), and as we indicated above, the jury is
entitled to infer the requisite intent from the defendant’s acts. There was sufficient evidence for
the jury to infer Pokorney acted with the requisite intent as to this count.
C.        Recall of Witnesses
          Finally, Pokorney contends the district court erred in refusing to allow him to recall
several witnesses during the State’s case-in-chief in order to impeach them with their prior
testimony. Initially, we note that the district court only precluded Pokorney from recalling R.P.




                                                 14
(as can be seen from the record excerpted below), and thus, we confine our discussion to that
ruling.
          On the first day of trial, during Pokorney’s cross-examination of R.P., the following
exchange occurred:
          [Pokorney]:  Your Honor, I want to recall him tomorrow, after--I have a bunch
                       of stuff--
          [The Court]: Well, at this point, we’ll take it up accordingly.
                               You can be excused--did you have any other questions at
                       this point?
          [Pokorney]: Will I get to talk to him tomorrow?
          [The Court]: I’ll make a determination whether or not you can be excused. If
                       you wish to call him in your case-in-chief tomorrow, he’ll be
                       allowed to testify.
          [Pokorney]: Okay. I’ll do that. Okay, son.

The State then conducted redirect examination of R.P. Later on the first day of trial, after the
State’s redirect of W.P., the court asked Pokorney whether he wished to recall W.P. the next day,
to which Pokorney replied in the affirmative. The first day of trial ended during Pokorney’s
cross-examination of J.G. After the jury was excused, Pokorney indicated to the court he would
be recalling some of the witnesses who had already testified and asking numerous questions
regarding contradictions with previous testimony and statements. The court indicated there was
“a time and place to impeach a witness, and that typically is done when they are called by the
State.” The court indicated it would “wait and see” what questions Pokorney would ask and
proceed from there.
          When trial resumed the next day, the court addressed Pokorney before the jury was
present and the following exchange occurred:
          [The Court]: You had indicated you’re going to be recalling some witnesses and
                       going over with them, as part of that testimony, what they have
                       testified to before in earlier court proceedings.
                                Rule 43(b)(5) of our Rules of Civil Procedure sets forth that
                       “A witness, once examined, cannot be reexamined on the same
                       matter without leave of the court.”
                                And so, obviously, if . . . you intend to impeach [your three
                       sons] about their earlier testimony, that, frankly, was covered or
                       you had that opportunity in the State’s case-in-chief to
                       cross-examine them about that. I’ll wait to see what you intend to
                       call them on.



                                                  15
                        The one witness that I’m concerned about in particular is
               the youngest child that testified. The 15-year-old [W.P.] and
               [J.G.], the 27-year-old, I may give you some latitude on that. But
               were you going to recall--what’s the youngest one that testified?
[Pokorney]:    [R.P.].
[The Court]:   . . . Were you going to recall him and ask him questions about his
               earlier testimony?
[Pokorney]:    I was.
[The Court]:   Why didn’t you go through that when he was on the witness stand
               and that was being covered earlier when he testified as to the
               inappropriate touching?
[Pokorney]:    Well, because I didn’t have the material with me.
[The Court]:   Well, that’s your problem. I’m not going to allow him to be
               retraumatized again.
[Pokorney]:    Okay. Well, he’s my witness too. I’ll just do it when it’s my
               witness.
[The Court]:   No . . . if the subject matter about the touching was brought out on
               direct examination and you had an opportunity to cross-examine
               him about that, that’s when you can cross-examine him about prior
               inconsistent statements.
[Pokorney]:    Right. I understand that.
[The Court]:   That’s fair game.
[Pokorney]:    I don’t want to cross-examine him. I’m going to call him as my
               witness.
[The Court]:   And what are you going to ask him?
[Pokorney]:    A whole bunch of stuff.
[The Court]:   Well, you’re going to lay it out for me now. What are you going to
               ask him about?
[Pokorney]:    Wait. Rule 607 says . . . I can attack the credibility of any witness,
               right?
[The Court]:   You do it on cross-examination, when they’ve been called the first
               time.
[Pokorney]:    Right, but that’s the State’s witness.
[The Court]:   No.
[Pokorney]:    What about my witness?
[The Court]:   If you’re going to recall him, I would like to hear from you . . .
               what it is that you’re going to ask him on reexamination? What is
               it you intend to ask him about?
[Pokorney]:    I’m going to ask him about his statements that he had his clothes
               off, because in the earlier--
[The Court]:   You had an opportunity to do that on cross-examination.
[Pokorney]:    So--
[The Court]:   That was brought up.
[Pokorney]:    So you’re saying that--before I even call my witness, you’re telling
               me what I can and cannot talk about?
[The Court]:   I’m telling you that you can ask him about--


                                        16
       [Pokorney]: Anything. He’s my witness.
       [The Court]: No, you cannot. You cannot bring out prior inconsistent
                    statements.
       [Pokorney]: Because?
       [The Court]: Because you had the opportunity to do that--
       [Pokorney]: I haven’t had--
       [The Court]: --when he was on--yes, you have. And I’m not going to argue with
                    you anymore. . . . I’m going to order you at this point in time--
                    before he’s even recalled to the witness stand, you’re going to
                    outline to me what it is that you’re going to ask him. And if it’s
                    about prior inconsistent statements on that youngest child, who has
                    been traumatized twice already, I am not going to give you the
                    right to do that by recalling him. You had the opportunity to do
                    that when he was on the witness stand in the first place. And Rule
                    43(b)(4) clearly points that out.
                            Now, with the 15-year-old and the older one, I’ll give you
                    that latitude because, frankly, you’re representing yourself. And,
                    by the way, you’re doing a very marginal job, at best, at doing that.

       On appeal, Pokorney contends the district court erred in refusing to allow him to recall
R.P. because it relied on a civil rule in doing so and his Sixth Amendment rights to confront his
accusers and to compulsory process, i.e., to present a complete defense, were violated by the
ruling. Of course, we agree that a civil rule of procedure is an improper basis for limiting a
defendant’s ability to recall a witness in a criminal trial. However, as we indicated above, where
a ruling in a criminal case is correct, though based upon an incorrect reason, it still may be
sustained upon the proper legal theory. Pierce, 107 Idaho at 102, 685 P.2d at 843. The Sixth
Amendment guarantees a criminal defendant the right “to have compulsory process for obtaining
witnesses in his favor.” Accord IDAHO CONST. Art. I, § 13. Compulsory process is the right to
present a defense--specifically, the right to present the defendant’s version of the facts as well as
the prosecution’s to the jury so it may decide where the truth lies. Washington v. Texas, 388
U.S. 14, 19 (1967); State v. Dalrymple, 144 Idaho 628, 634-35, 167 P.3d 765, 771-72 (2007).
The right of the accused to present witnesses in his own defense is fundamental, but is not
without limitation. Taylor v. Illinois, 484 U.S. 400, 408-10 (1988); Dalrymple, 144 Idaho at 635,
167 P.3d at 772.       In addition, although a criminal defendant’s constitutional right of
confrontation includes the opportunity to mount a vigorous attack upon the credibility of
witnesses against him, see generally Davis v. Alaska, 415 U.S. 308 (1974), the right to confront
adverse witnesses is not absolute. State v. Downing, 128 Idaho 149, 152, 911 P.2d 145, 148 (Ct.


                                                 17
App. 1996).       “[T]he Confrontation Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to whatever
extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985). See also
Downing, 128 Idaho at 152-53, 911 P.2d at 148-49. Trial courts retain wide latitude to impose
limits on cross-examination that is harassing, confusing, repetitive, or only marginally relevant.
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); State v. Araiza, 124 Idaho 82, 91, 856 P.2d
872, 881 (1993); Downing, 128 Idaho at 153, 911 P.2d at 149.
       Here, the crux of the district court’s ruling in disallowing the recall of R.P. was that
Pokorney had his opportunity to confront R.P. with his alleged inconsistent statements during
cross-examination and, having not done so, was not allowed to recall R.P. to the stand because of
the court’s fear that R.P. would be “retraumatized.” Given that Pokorney was, in fact, given the
opportunity to cross-examine R.P. with his inconsistent statements, he was afforded his
constitutional right to confront witnesses and present his defense. That he did not take advantage
of this opportunity (for whatever reason) and the district court then acted within its considerable
discretion to limit further cross-examination in order to protect R.P., does not rise to the level of
a constitutional violation of Pokorney’s Sixth Amendment rights.
                                                III.
                                         CONCLUSION
       The district court adequately inquired into Pokorney’s request for substitute counsel and
did not err in denying this request.      In addition, there was sufficient evidence to sustain
Pokorney’s convictions for two counts of lewd conduct with a minor under sixteen and the
district court’s refusal to allow Pokorney to recall R.P. as a witness did not rise to the level of a
constitutional violation. Pokorney’s judgment of conviction for two counts of lewd conduct with
a minor is affirmed.
       Judge LANSING and Judge MELANSON CONCUR.




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