               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41336

STATE OF IDAHO,                                )    2015 Unpublished Opinion No. 351
                                               )
       Plaintiff-Respondent,                   )    Filed: February 13, 2015
                                               )
v.                                             )    Stephen W. Kenyon, Clerk
                                               )
KYLE STEVEN BOWER,                             )    THIS IS AN UNPUBLISHED
                                               )    OPINION AND SHALL NOT
       Defendant-Appellant.                    )    BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Juneal C. Kerrick, District Judge.

       Order of the district court denying motion to sever, affirmed; judgment of
       conviction and sentence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Eric D. Fredericksen, Deputy
       Appellate Public Defender, Boise, for appellant. Eric D. Fredericksen argued.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent. Jessica M. Lorello argued.



SCHWARTZMAN, Judge Pro Tem
       Kyle Steven Bower was charged with three sex offenses involving two alleged victims.
Bower filed a motion to sever such that the charges relating to each victim would be tried
separately. The district court denied the motion to sever and Bower was convicted of all three
charges. Bower appeals and argues that the district court erred by denying that motion.
                                               I.
                                       BACKGROUND
       Bower was charged with two counts of lewd conduct, Idaho Code § 18-1508--one for
acts involving K.B., his daughter, and one for acts involving J.B., his long-term girlfriend’s
daughter. He was also charged with sexual abuse of a minor, I.C. § 18-1506, for acts involving
K.B.

                                               1
       On July 5, 2012, Bower filed a motion to sever, but failed to explicitly set forth the legal
grounds upon which his motion was based. 1 The district court held two hearings on the matter.
At the first hearing on July 9, Bower presented argument in favor of his motion. 2 At the second
hearing on July 19, Bower’s counsel argued as follows:
               Judge, I simply just looked at the rule. And they’ve got two different
       victims alleged in this information--the indictment, I should say--and quite a
       difference in time frame between when the alleged events took place.
               And, I mean, my position is it’s improper to try the two cases together
       because it’s unduly prejudicial to Mr. Bower to have two separate, complete--
       alleged victims talking about stuff that took place on completely different dates
       and time frames in the same trial. It’s just way unduly prejudicial. And that’s
       why I feel they should be severed.

The State responded that the acts in question constituted part of a common scheme or plan
committed by a person in a position of trust. It argued that Bower was not entitled to severance
pursuant to Idaho Criminal Rule 14, because he could not show undue prejudice, and that
severance would waste judicial resources; evidence of both molestations would be admitted at
both trials, either as direct evidence of the offense or as prior bad act evidence.
       The district court issued a written ruling on August 31, 2012, holding that severance was
not required pursuant to I.C.R. 14. It reasoned that the jury would not confuse the evidence
regarding each child because the events were temporally distinct. Furthermore, any prejudice
caused by the multiplicity of charges could be cured by a limiting instruction. 3 It concluded that
the State had made “at least a prima facie showing that evidence of [Bower’s] conduct in

1
       Neither party filed a brief related to the severance motion.
2
       We do not have the transcript for the July 9 hearing. In his notice of appeal, Bower did
not specifically designate and request the transcript for the July 9 hearing. See Idaho Appellate
Rule 25(d)(5) (explaining that transcripts for certain pretrial hearings, including motions to sever,
must be specifically designated and requested). On appeal, the appellant bears the responsibility
of providing a sufficient record to substantiate his claims on appeal. State v. Murphy, 133 Idaho
489, 491, 988 P.2d 715, 717 (Ct. App. 1999) (concerning a transcript not contained in the
record). We will not presume error, if the record is not adequately supported by the appellant.
Id.
3
        The jury was given both general and specific instructions regarding the multiplicity of
charges. Generally, the jury was told that it could only consider the evidence submitted at trial
and that the indictment was not evidence. More specifically, the jury was instructed that it was
to consider and decide each count separately.


                                                  2
Count II [relating to J.B.] would be admissible in a trial on Counts I and III [relating to K.B.] and
vice versa.” Bower did not file a motion to reconsider. The case proceeded to trial, but the court
declared a mistrial after the jury was unable to reach a verdict. Following a second trial, the jury
found Bower guilty of all three counts.
                                                 II.
                                            ANALYSIS
        The primary issue in this appeal is the scope of Bower’s motion to sever. Bower argues
that the district court committed “legal error” because its analysis was based on the
misunderstanding that the motion to sever was one brought under I.C.R. 14, rather than a claim
that the original joinder was improper under I.C.R. 8. In response, the State does not contend
that the district court properly analyzed the case under Rule 8; instead, it claims that the district
court was not required to address the propriety of the initial joinder because Bower failed to raise
that issue in the district court.
A.      Idaho Law Provides Two, Independent Grounds for Severance
        The parties do not dispute the substantive law governing joinder; both agree that Idaho
law provides two, independent grounds upon which a defendant may seek to have his charges
severed. 4   Pursuant to I.C.R. 8(a), the State may join two or more charges in a charging
document where the charges “are based on the same act or transaction . . . or constitut[e] parts of
a common scheme or plan.” Idaho decisional law permits a defendant to challenge the State’s
joining of two offenses by arguing that the requirements of I.C.R. 8 have not been met. See State
v. Field, 144 Idaho 559, 565, 165 P.3d 273, 279 (2007); State v. Anderson, 138 Idaho 359, 361,
63 P.3d 485, 487 (Ct. App. 2003).
        Idaho Criminal Rule 14 provides for a different kind of relief. Pursuant to that rule, a
defendant may seek to sever charges, even if the requirements of I.C.R. 8 have been met, when
the joinder results in unfair prejudice. State v. Caudill, 109 Idaho 222, 226, 706 P.2d 456, 460
(1985) (“Parties properly joined under I.C.R. 8(b) may be severed under I.C.R. 14 if it appears
that joint trial would be prejudicial.”); Anderson, 138 Idaho at 361 n.1, 63 P.3d at 487 n.1
(“Rule 14 permits a trial court to sever defendants, or grant separate trials of counts, if a party is


4
       Bower concedes that the Idaho Supreme Court has explained that a claim that charges
were improperly joined under Rule 8 involves different considerations and a different standard of
review than a motion to sever brought pursuant to Idaho Criminal Rule 14.
                                                  3
prejudiced by an otherwise permissible joinder under Rule 8(a).”); State v. Longoria, 133 Idaho
819, 824 n.3, 992 P.2d 1219, 1224 n.3 (Ct. App. 1999) (the Court declined to address Rule 8
issues, i.e., the propriety of the initial joinder, because the motion to sever only raised Rule 14
issues, i.e., prejudice); see also Zafiro v. United States, 506 U.S. 534, 538 (1993) (applying the
analogous federal rule and holding that “Rule 14 recognizes that joinder, even when proper
under Rule 8[], may prejudice either a defendant or the Government”); United States v. Chavis,
296 F.3d 450, 457 (6th Cir. 2002) (“Rule 14 authorizes a defendant to move for severance in
situations in which joinder of multiple offenses or defendants is proper under Rule 8, but
nonetheless would be prejudicial to the defendant.”). Generally, Idaho courts have considered
three potential sources of prejudice when addressing a motion to sever based upon I.C.R. 14:
       (a) the possibility that the jury may confuse and cumulate the evidence, rather
       than keeping the evidence properly segregated; (b) the potential that the defendant
       may be confounded in presenting defenses; and (c) the possibility that the jury
       may conclude the defendant is guilty of one crime and then find him guilty of the
       other simply because of his criminal disposition, i.e. he is a “bad person.”

Longoria, 133 Idaho at 824, 992 P.2d at 1224 (quoting State v. Abel, 104 Idaho 865, 868, 664
P.2d 772, 775 (1983).
B.     Preservation of the Improper Joinder Issue in the District Court
       Although the parties appear to agree on the substantive law of joinder, they dispute the
nature of the motion below. The relevant portions of Bower’s motion contain four contentions:
       1.      The facts and circumstances surrounding the Counts are separate and apart
               from each other.
       2.      The incidents resulting in the bringing of these Counts are separate.
       3.      The alleged victims in these Counts are different and the dates for the
               alleged acts to have been committed are years apart.
       4.      Having these counts together will highly prejudice defendant.

Bower argues that we should infer that Rule 8, and not Rule 14, was at issue in this case, because
the “bulk” of his motion “was centered on the dissimilarities between” the charges. But, Bower
concedes that some of his arguments would not be applicable to the Rule 8 analysis, including
repeated references to prejudice.
       Bower also argues that the district court discussed Rule 8 in its analysis. Certainly, the
district court referenced Rule 8 in its order. But the district court was not applying Rule 8 or
even acknowledging that it was raised. Indeed, the only reference to Rule 8 is a parenthetical to
the citation of Longoria, 133 Idaho at 824 n.3, 992 P.2d at 1224 n.3. Here, the district court
                                                4
discussed a Longoria footnote wherein this Court noted that the defendant had not made any
argument that the initial joinder of the charges was impermissible pursuant to I.C.R. 8(a), but
only argued that he was prejudiced by the joinder.
        Conversely, the State notes that Bower made repeated references to “prejudice” as the
reason the counts should be severed. That argument tracks the language in Rule 14, which
provides relief when a party is “prejudiced by a joinder.” Moreover the State notes that Bower
failed to cite Rule 8 or discuss the applicable standard.
        On appeal, both parties frame this issue as a question of preservation. Generally, issues
not raised below may not be considered for the first time on appeal. State v. Voss, 152 Idaho
148, 150, 267 P.3d 735, 737 (Ct. App. 2011); State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123,
126 (1992). In particular, an appellant is barred from arguing an issue that differs from the ones
raised below. Voss, 152 Idaho at 150, 267 P.3d at 737. Conversely, this Court is authorized to
review a claim that is substantially the same or sufficiently overlaps with an issue raised before
the trial court. Id.
        There are several persuasive grounds upon which this Court concludes that the issue was
not preserved. First, after searching the record before us, we have failed to find any direct
evidence that Bower cited Rule 8, quoted or paraphrased the language of Rule 8, or made any
argument that can be definitively or solely attributed to Rule 8. For example, dissimilarities in
the offenses are relevant to the I.C.R. 14 analysis. If the offenses are dissimilar, the defendant
may be confounded in presenting defenses. He might wish to generally deny one set of facts, but
claim that he lacked the requisite criminal intent as to other charges.
        Second, Bower’s argument that his claim is preserved implicitly depends upon the
premise that the Rule 8 and Rule 14 analyses are substantially the same or sufficiently
overlapping. That argument is strained by the fact that Bower’s claim of error is premised on an
argument that Rule 8 and Rule 14 are distinct--so distinct that the district court erred by
misconstruing an ambiguous motion. We conclude that the issues are not so similar that we may
deem the Rule 8 issue preserved. Rule 8 analysis significantly differs from the Rule 14 analysis;
each analysis requires that a court answer fundamentally different questions. For example, a
court deciding whether the charges flow from a common scheme or plan would not perform the
same analysis when deciding whether a defendant would be confounded in presenting defenses.



                                                  5
       Third, Bower’s arguments would unfairly shift the burden of setting forth the legal
grounds upon which a motion is based from a party to the court. Generally, it is a party’s duty to
set forth the substantive and procedural grounds upon which he seeks relief. See, e.g., O’Dell v.
Basabe, 119 Idaho 796, 809, 810 P.2d 1082, 1095 (1991) (“Trial judges should not be required
to attempt to guess at the applicable rule governing each charge of error claimed by the moving
party. It is incumbent upon counsel to set out the legal basis for each motion [and] set forth the
basis in the record upon which the motion rests.”); see also State v. Frederick, 149 Idaho 509,
513, 236 P.3d 1269, 1273 (2010) (declining to consider a case under the Idaho Constitution
because the defendant failed to raise that issue); State v. Perry, 150 Idaho 209, 224, 245 P.3d
961, 976 (2010) (discussing the policy reasons that appellate courts require claims to be brought
to the attention of the district court). Under Bower’s approach to ambiguous motions, the district
court would be required to act as an advocate, canvassing the entire corpus of Idaho law to find
the grounds upon which a motion might rest. His approach would require reversal if a defendant
can convince an appellate court that alternative grounds for relief exist, beyond those conceived
by the district court. This approach to ambiguous motions is inconsistent with general principles
of judicial efficiency and the role of Idaho’s appellate courts.
       Finally, we note that Bower failed to file a motion to reconsider. If a trial court issues a
ruling and a party believes that the ruling is incomplete because it fails to address an issue that
was raised, one procedurally proper means to remedy that deficiency is the filing of a motion to
reconsider. See State v. Montague, 114 Idaho 319, 321, 756 P.2d 1083, 1085 (Ct. App. 1988)
(this Court has held that a motion to reconsider, if not prohibited by an applicable rule, grants the
trial court the “discretion to reexamine his prior ruling and to consider all information pertinent
to the subject”). Here, the district court failed to review the Rule 8 issue--it cited a case
explaining that a court need only address Rule 14 issues when Rule 14 is raised but Rule 8 is not.
Thus, the court provided Bower notice of the scope of its ruling. In essence, if Bower believed
that, as argued on appeal, the district court “misunderstood” the basis for his motion, he should
have raised it below, rather than for the first time on appeal.
       We are constrained to the view that Bower has failed to show that the issue of Rule 8
joinder was preserved on appeal. In addition, we agree with the district court that the State made
at least a prima facie showing that evidence of defendant’s conduct in Count II would be
admissible in a trial on Counts I and III and vice versa. See Longoria, 133 Idaho at 825, 992

                                                  6
P.2d at 1225. Both girls testified that Bower began by manually touching their genitals. K.B.
testified that Bower’s advances escalated until he had sex with her. Thereafter, she reported the
molestations to a friend and eventually to the police. Only then did the sexual assaults cease.
J.B., who considered Bower to be her main father figure, 5 testified that she resisted Bower’s
advances by attempting to grab a phone and call police and that Bower never tried to touch her
again. Bower admitted that he maintained a regular practice of calling all of his daughters into
his bedroom on Saturday mornings and requiring them to give him backrubs while he was
mostly unclothed. The evidence showed that this was a method of “grooming” the children for
sexual assault. Both girls testified that Bower would occasionally tell one of the girls to remain
behind and continue the back rubs, isolating a single girl in his bedroom. Likewise, both girls
testified that the first time Bower molested them, he did so after isolating them in that way,
touching them after the other girls had left.
                                                III.
                                          CONCLUSION
       Bower has failed to show that he sought severance pursuant to I.C.R. 8. Accordingly, we
uphold the order denying the motion to sever under I.C.R. 14. The judgment of conviction is,
therefore, affirmed.
       Judge GUTIERREZ and Judge GRATTON CONCUR.




5
       J.B. and K.B. lived together for several years, including at the time that Bower allegedly
molested J.B. Bower has four children, all girls, and acted as a stepparent to J.B.


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