               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                 Docket Nos. 44140 & 44141

STATE OF IDAHO,                                ) 2017 Opinion No. 46
                                               )
       Plaintiff-Respondent,                   ) Filed: September 29, 2017
                                               )
v.                                             ) Karel A. Lehrman, Clerk
                                               )
BRANDON BRIGGS,                                )
                                               )
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Madison County. Hon. Alan C. Stephens, District Judge.

       Order denying motion in limine and judgment of conviction, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Brandon Briggs appeals from his judgment of conviction entered upon the jury verdict
finding him guilty of five counts of lewd conduct, four counts of sexual abuse, and one count of
enticing. Before trial, the district court denied Briggs’s request to cross-examine witnesses
regarding sexual activity under Idaho Rule of Evidence 412(b)(2)(D). On appeal, Briggs argues
unobjected-to error occurred because the district court violated his right to confront witnesses
under I.R.E. 412(b)(1) and the Sixth Amendment of the United States Constitution. Because this
case did not involve an unobjected-to error, the standard for unobjected-to error does not apply.
Even if this standard does apply, there was no constitutional violation in this case, and thus,
Briggs cannot establish fundamental error.      Furthermore, Briggs did not present a Sixth
Amendment or I.R.E. 412(b)(1) argument to the district court, and thus, we cannot address the
arguments for the first time on appeal. We therefore affirm the district court’s order denying
Briggs’s motion in limine and judgment of conviction.

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                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In Docket No. 44140 (2014 case), the State charged Briggs with six crimes: (1) lewd
conduct with a child under the age of sixteen years, felony, Idaho Code §§ 18-1508 and 18-
112A; (2) sexual abuse of a child under the age of sixteen years, felony, I.C. §§ 18-1506 and 18-
112A; (3) lewd conduct with a child under the age of sixteen years, felony, I.C. §§ 18-1508 and
18-112A; (4) lewd conduct with a child under the age of sixteen years, felony, I.C. §§ 18-1508,
18-112A, and 19-304; (5) lewd conduct with a child under the age of sixteen years, felony,
I.C. §§ 18-1508, 18-112A, and 19-304; and (6) lewd conduct with a child under the age of
sixteen years, felony, I.C. §§ 18-1508, 18-112A, and 19-304.
       In Docket No. 44141 (2015 case), the State charged Briggs with four crimes: (1) sexual
abuse of a child under the age of sixteen years, felony, I.C. §§ 18-1506(1)(a) and 18-112A;
(2) sexual abuse of a child under the age of sixteen years, felony, I.C. §§ 18-1506(1)(a) and 18-
112A; (3) sexual abuse of a child under the age of sixteen years, felony, I.C. §§ 18-1506(1)(b) 1
and 18-112A; and (4) enticing a child through the use of the Internet or other communication
device, felony, I.C. § 18-1509A. The district court consolidated the cases.
       Before trial, Briggs filed a motion in limine, pursuant to I.R.E. 412. In the motion,
Briggs moved the district court to admit the sexual history of the victims in the case to show the
victims were sexually involved with individuals other than Briggs. Briggs alleged the victims
accused Briggs in order to protect the actual perpetrators of the crimes. Briggs argued the
testimony was relevant to provide a motive for the victims to lie about any sexual contact with
Briggs. At the hearing on the motion, Briggs was asked which section of I.R.E. 412 applied, and
Briggs responded: “I think it goes under Rule 412(b)(2)(D), ‘sexual behavior with parties other
than the accused which occurred at the time of the event giving rise to the sex crime charged.’”
The district court issued the following ruling on the matter:
              I think evidence that these [victims] knew each other and would, therefore,
       have an opportunity to maybe conspire or get their stories together would be
       relevant evidence. But I don’t think the allegations about sexual contact between
       these [victims] and others--I don’t see how that would fit under 412 in this


1
       The information lists the count as Idaho Code, Section 18-1506(a)(b), but this appears to
be a typographical error. Idaho Code § 18-1506(a)(b) does not exist and the language of the
charge correlates instead to I.C. § 18-1506(1)(b).
                                                 2
       particular case, because consent is not an issue in this case because these are
       minors.
The district court issued a written order on the motion in limine, ruling that Briggs could not
present evidence of the victims’ sexual conduct with other individuals. At no point did Briggs
articulate that he had a constitutional right to present the evidence in question, cross-examine the
victims on the matter, or specify any different or additional bases under I.R.E. 412 to admit the
evidence.
       At trial, the jury found Briggs guilty on all counts charged. In the 2014 case, the district
court imposed a unified sentence of forty-eight years, with eighteen years determinate, on each
of the five lewd conduct counts. The district court also imposed a unified sentence of twenty-
five years, with twelve years determinate, on the sexual abuse count. In the 2015 case, the
district court imposed a unified sentence of twenty-five years, with twelve years determinate, on
each of the three sexual abuse counts. For the charge of enticing a child through the use of the
Internet, the district court imposed a unified sentence of fifteen years, with seven years
determinate. The district court ordered all sentences to run concurrently. Briggs timely appeals.
                                                II.
                                   STANDARD OF REVIEW
       The decision whether to admit evidence at trial is generally within the province of the
trial court. A trial court’s determination that evidence is supported by a proper foundation is
reviewed for an abuse of discretion. State v. Gilpin, 132 Idaho 643, 646, 977 P.2d 905, 908 (Ct.
App. 1999). Therefore, a trial court’s determination as to the admission of evidence at trial will
only be reversed where there has been an abuse of that discretion. State v. Zimmerman, 121
Idaho 971, 973-74, 829 P.2d 861, 863-64 (1992).
                                                III.
                                           ANALYSIS
       Generally, issues not raised below may not be considered for the first time on appeal.
State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Idaho decisional law, however,
has long allowed appellate courts to consider a claim of error to which no objection was made
below if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho
559, 571, 165 P.3d 273, 285 (2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262
(1971). In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court
abandoned the definitions it had previously utilized to describe what may constitute fundamental
                                                 3
error. The Perry Court held that an appellate court should reverse an unobjected-to error when
the defendant persuades the court that the alleged error:         (1) violates one or more of the
defendant’s unwaived constitutional rights; (2) is clear or obvious without the need for reference
to any additional information not contained in the appellate record; and (3) affected the outcome
of the trial proceedings. Id. at 226, 245 P.3d at 978.
A.     Because There Was No Unobjected-to Error, the Unobjected-to Error Standard
       Does Not Apply to This Case
       The threshold question here is whether the failure to articulate a specific basis on which
to admit evidence qualifies as unobjected-to error for purposes of a fundamental error analysis.
This Court does not apply Perry factors unless it first determines a trial contained an unobjected-
to error. See Id. at 226, 245 P.3d at 978.
       It is not unobjected-to error when a party articulates a specific basis to admit evidence,
receives a ruling, and then fails to offer a different basis on which to admit the evidence. For
example, in Perry, trial counsel made only one objection to the State’s witnesses during trial. Id.
at 214-15, 245 P.3d at 966-67. The Court analyzed the unobjected-to error after Perry argued on
appeal that the prosecutor committed five acts of misconduct, four of which Perry did not object
to at trial. Id. at 219, 245 P.3d at 971. The Supreme Court also analyzed unobjected-to error
when both parties in State v. Sutton, 151 Idaho 161, 254 P.3d 62 (2011) agreed the court gave the
wrong jury instructions, yet Sutton failed to object at trial. Id. at 163, 254 P.3d at 64. Similarly,
the appellant in State v. Rollins, 152 Idaho 106, 307 P.3d 1211 (Ct. App. 2011) argued on appeal
that the district court should have ordered a psychological examination, even though Rollins did
not object to the lack of an evaluation. Id. at 109, 266 P.3d at 1214. In State v. Carter, 155
Idaho 170, 307 P.3d 187 (2013), Carter appealed his sentence on the grounds that, although
Carter did not object, the district court failed to order a psychological evaluation and used a pre-
trial competency evaluation. Id. at 171, 307 P.3d at 188.
       Here, the actions of Briggs’s trial attorney did not qualify as unobjected-to error. Trial
counsel filed a motion in limine, arguing a very specific ground on which the district court
should admit evidence of the victims’ sexual history, which the district court denied. When the
evidence was excluded, trial counsel did not offer a different basis for its admission. Thus, this
is not a case where trial counsel failed to object; instead, this is a case where trial counsel failed
to offer a basis upon which the evidence could be admitted. Briggs’s claim on appeal is not that
the State or the district court made an error to which no objection was made. Rather, Briggs is
                                                  4
claiming his attorney failed to argue a particular basis on which to admit the evidence, thus
constituting “unobjected-to error.” Here, however, there was no error to which trial counsel
could object because he could not object to his own inaction.             This is not the type of
circumstance of “unobjected-to error” contemplated by the Perry opinion. The failure to offer a
specific evidence rule as a basis to admit or exclude evidence is not unobjected-to error for
purposes of a fundamental error analysis. 2
B.     Even If We Consider Unobjected-to Error, Briggs Cannot Show Fundamental
       Error Because He Cannot Satisfy the First Prong of Perry
       Even if we could apply the Perry factors to this case, Briggs cannot show fundamental
error. Where the asserted error involves a violation of a rule or statute, and not a constitutional
right, the fundamental error doctrine is not invoked. Perry, 150 Idaho at 226, 245 P.3d at 978.
Throughout trial, Briggs attempted to admit evidence of the victims’ sexual behavior under
I.R.E. 412(b)(2)(D), sexual behavior with parties other than the accused which occurred at the
time of the event giving rise to the sex crime charged. Only on appeal has Briggs asserted a
constitutional violation for what was an evidentiary issue at trial, making this case similar to the
facts in State v. Jackson, 151 Idaho 376, 256 P.3d 784 (Ct. App. 2011).
       In Jackson, the defendant filed a motion in limine before trial, seeking to exclude
evidence pursuant to I.R.E. 404(b). Jackson, 151 Idaho at 378-79, 256 P.3d at 786-87. On
appeal, Jackson argued fundamental error pursuant to his Fourteenth Amendment due process
right to a fair trial. Jackson, 151 Idaho at 379, 256 P.3d at 787. This Court was not persuaded,
holding that Jackson’s argument did not satisfy the first prong of Perry. Jackson, 151 Idaho at
379, 256 P.3d at 787. Specifically, we explained:
       To hold that the presentation of evidence and associated argument in violation of
       an evidentiary rule satisfies the constitutional violation element of Perry because
       all evidentiary error implicates due process would, in our view, virtually
       eviscerate the first prong of the Perry standard and contravene the limits that
       Perry places on fundamental error review.
Jackson, 151 Idaho at 379-80, 256 P.3d at 787-88. We decline to extend the Perry “unobjected-
to error” analysis to situations in which trial counsel fails to offer a particular basis upon which
to admit evidence. Consequently, Briggs cannot satisfy the first prong of Perry.



2
       It must be remembered that fundamental error is simply a standard created and utilized by
our appellate courts for appellate review. It is not a right of review.
                                                 5
C.     Briggs Did Not Present a Sixth Amendment or I.R.E. 412(b)(1) Argument to the
       District Court, and Thus, We Cannot Address These Arguments on Appeal
       Even if we were to hold such a claim was cognizable under the Perry analysis, Briggs
raises the issue for the first time on appeal. The Supreme Court has recently emphasized that
appellate court review is limited to the evidence, theories, and arguments that were presented
below. State v. Garcia-Rodriguez, 162 Idaho 271, 275, 396 P.3d 700, 704 (2017). 3 For an
objection to be preserved for appellate review, either the specific ground for the objection must
be clearly stated, State v. Norton, 134 Idaho 875, 880, 11 P.3d 494, 499 (Ct. App. 2000), or the
basis of the objection must be apparent from the context. State v. Cannady, 137 Idaho 67, 72, 44
P.3d 1122, 1127 (2002). An objection to the admission of evidence on one basis does not
preserve a separate and different basis for exclusion of the evidence. Norton, 134 Idaho at 880,
11 P.3d at 499.
       Although both parties address whether the district court’s failure to admit the evidence
pursuant to I.R.E. 412(b)(1) constitutes fundamental error, Briggs concedes he is making a
different argument on appeal than he made at trial regarding the admissibility of evidence. On
appeal, Briggs argues that his Sixth Amendment right to confront witnesses was violated because
the evidence was excluded. Specifically, Briggs asserts that he had a constitutional right to
cross-examine the victims regarding their sexual activity. Briggs explains in his appellant’s
brief: “Prior to trial, Mr. Briggs’s counsel asserted the evidence at issue was admissible under
Idaho Rule of Evidence 412 to show the alleged victims’ motive to lie. However, defense
counsel did not articulate that the evidence was constitutionally required to be admitted pursuant
to Rule 412(b)(1).”     After this admission, Briggs asserts that this Court may review the
constitutional violation because the error plainly exists and is not harmless. We disagree.
       Briggs did not argue to the district court that the evidence of the victims’ sexual activity
was constitutionally required to be admitted. The issue of constitutionality is raised for the first
time on appeal. Throughout the pretrial and trial proceedings, Briggs presented no evidence of a


3
        We acknowledge Briggs filed the appellant’s brief prior to the Supreme Court’s issuance
of State v. Garcia-Rodriguez, 162 Idaho 271, 396 P.3d 700 (2017), and thus, Briggs did not have
the benefit of the ruling. Nonetheless, Garcia-Rodriguez cites to the long history of appellate
restraint. See Nelson v. Nelson, 144 Idaho 710, 714, 170 P.3d 375, 379 (2007); see also, Allied
Bail Bonds, Inc. v. Cty. of Kootenai, 151 Idaho 405, 413, 258 P.3d 340, 348 (2011); Woods v.
Sanders, 150 Idaho 53, 59, 244 P.3d 197, 203 (2010); Meyers v. Hansen, 148 Idaho 283, 292,
221 P.3d 81, 90 (2009).
                                                 6
Sixth Amendment violation and offered no claim regarding his constitutional right to confront
witnesses. Rather, Briggs attempted to admit evidence of the victims’ sexual behavior under
I.R.E. 412(b)(2)(D), sexual behavior with parties other than the accused which occurred at the
time of the event giving rise to the sex crime charged. Because we are limited to the evidence,
theories, and arguments that were presented to the district court, and because Briggs did not
assert a constitutional right to confront witnesses at trial, we decline to address Briggs’s
constitutional claim on appeal. Additionally, on appeal Briggs does not address the exclusion of
the evidence pursuant to I.R.E. 412(b)(2)(D). Because Briggs makes no argument that the
district court erred in excluding the evidence on that basis, we decline to address the issue on
appeal.
                                                  IV.
                                           CONCLUSION
          Briggs’s actions at trial did not qualify as unobjected-to error pursuant to Perry, and even
if they did, Briggs has not established a constitutional violation occurred in this case. Briggs also
presents arguments on appeal that he did not present at trial. For the reasons set forth above, we
affirm the district court’s order denying Briggs’s motion in limine and judgment of conviction.
          Chief Judge GRATTON and Judge GUTIERREZ CONCUR.




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