                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 42988

STATE OF IDAHO,                                      )
                                                     )         Twin Falls, June 2016 Term
      Plaintiff-Respondent,                          )
                                                     )         2016 Opinion No. 116
v.                                                   )
                                                     )         Filed: November 2, 2016
MARCELINO B. BAEZA,                                  )
                                                     )         Stephen Kenyon, Clerk
      Defendant-Appellant.                           )

       Appeal from the District Court of the Fifth Judicial District of the State of Idaho,
       Blaine County. Hon. Jonathan Brody, District Judge.

       The district court’s judgment of conviction is affirmed.

       Eric Fredericksen, Interim State Appellate Public Defender, Boise, for appellant.
       Ben P. McGreevy argued.

       Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Ted S.
       Tollefson argued.
             _______________________________________________

HORTON, Justice.
       Marcelino Baeza appeals from the district court’s judgment of conviction for one count
of lewd conduct with a minor child under the age of sixteen involving his five-year-old niece,
J.C. Baeza argues that allowing J.C. to testify at trial through closed-circuit television violated
his due process right to a fair trial and presumption of innocence and that the district court failed
to adequately consider the relative rights of the parties under Idaho Code section 9-1806 when it
ordered the alternative method for presenting J.C.’s testimony. We affirm.
                     I. FACTUAL AND PROCEDURAL BACKGROUND
       On July 16, 2013, the Blaine County grand jury returned an indictment charging Baeza
with two counts of lewd conduct with a minor child under the age of sixteen, a violation of Idaho
Code section 18-1508. Both counts alleged that Baeza had sexual contact with his five-year-old
niece, J.C. Count One alleged manual-genital contact and Count Two alleged manual-anal
contact.



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        On January 9, 2014, the State filed a motion to allow the child witness to provide
testimony by an alternative method. The State argued that its key witness, J.C., was a five-year-
old child who would suffer serious emotional trauma if she were required to testify in open court
or confronted face-to-face by Baeza. At the hearing on the motion, the State called Tami
Kammer, a licensed clinical professional counselor. Kammer testified that J.C. was suffering
from post-traumatic stress disorder and recommended that J.C. not be required to testify in open
court or in front of Baeza. The State argued that under Idaho Code sections 9-1805 and 9-1806,
J.C. should be allowed to testify through alternative methods. On January 17, 2014, Baeza filed a
written response to the State’s motion. Baeza argued that allowing J.C. to testify through closed-
circuit television raised constitutional questions under the Confrontation Clause and Baeza’s due
process right to a fair trial and presumption of innocence.
        On March 4, 2014, the district court issued a pretrial order regarding an alternative
method of presenting J.C.’s testimony. The district court concluded that the State had shown by
clear and convincing evidence that J.C. “would suffer serious emotional trauma that would
substantially impair the child’s ability to communicate with the finder of fact if required to be
confronted fact-to-face by the defendant.” The district court explained that it had thoroughly
considered all of the factors listed in Idaho Code section 9-1806 and that permitting an
alternative method of testimony was appropriate.
        On April 9, 2014, the State filed a motion to close the trial and to allow child-friendly
procedures during J.C.’s testimony. At the hearing on the motion, Baeza objected to closing the
courtroom and to some of the proposed child-friendly procedures. On April 18, 2014, the district
court issued a second pretrial order regarding the alternative method of presenting the child’s
testimony. The district court concluded that “the trauma to the child from public testimony needs
to be minimized to the extent reasonably possible.” The district court explained that “[w]eighing
[Baeza’s] interests against [J.C.’s] the court concludes the public and [Baeza] should be excluded
during [J.C.’s] testimony....” The order provided that Baeza would be “present, alone, in the
small jury room during the victim’s testimony, where he [would] be able to both see and hear the
victim testify....”   The district court also ordered that Baeza’s family members would be
permitted to view a live video feed of J.C.’s testimony in an adjoining courtroom.
        Following the second pretrial order regarding the alternative method of presenting J.C.’s
testimony, the presiding district judge recused himself and a new district judge was assigned. On



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May 12, 2014, Baeza filed a motion to reconsider the order regarding J.C.’s testimony. Baeza
argued that requiring Baeza and the public to leave the courtroom during J.C.’s testimony would
have a prejudicial effect on his due process right to a fair trial. On July 15, 2014, the district
court issued its Order re: Testimony by Alternate Method. The district court found that “there is
clear and convincing evidence that the child could suffer serious emotional trauma that would
substantially impair her ability to communicate with the jury if she is required to be confronted
face-to-face by the Defendant.” Based on that finding, the district court stated that “testimony by
alternative means will be allowed, and this court has considered the factors in I.C. Sec. 9-1806.”
However, the district court ordered that instead of removing Baeza and his family from the
courtroom during J.C.’s testimony, J.C. would testify via two-way closed-circuit television and
that “the camera will be set in such a way that [Baeza] is not seen by the child.”
         At trial, prior to J.C.’s testimony, the district court instructed the jury not to give any
different weight to J.C.’s testimony based on any of the child-friendly procedures that were in
place:
         THE COURT: And, ladies and gentlemen, it’s going to be obvious in a second,
         but [J.C.] is going to testify over a video link. There should be audio. So you’re
         going to see that. And if we have to deal with that during the testimony, please
         bear with us.
         But I do have an instruction regarding that for you. So the instruction as to the
         testimony is this: Do not give any different weight to [J.C.’s] testimony because
         of the child-friendly procedures used during her testimony.
At the close of evidence, the district court again instructed the jury not to give different weight to
J.C.’s testimony because of the manner in which her testimony was presented:
         THE COURT: Do not give any different weight to [J.C.’s] testimony because of
         the child-friendly procedures used during her testimony.
The jury found Baeza guilty of Count One and not guilty of Count Two. The district court
sentenced Baeza to twenty years imprisonment, with ten years fixed. Baeza timely appealed.
                                  II. STANDARD OF REVIEW
         “This Court freely reviews questions of law.” Rangen, Inc. v. Idaho Dep’t of Water Res.,
159 Idaho 798, 804, 367 P.3d 193, 199 (2016) (quoting Vickers v. Lowe, 150 Idaho 439, 442,
247 P.3d 666, 669 (2011)). “Constitutional issues are purely questions of law over which this
Court exercises free review.” Morgan v. New Sweden Irr. Dist., 160 Idaho 47, 51, 368 P.3d 990,
994 (2016).



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                                          III. ANALYSIS
        Baeza advances the following arguments on appeal: (1) allowing J.C. to testify through
closed-circuit television violated Baeza’s due process right to a fair trial and presumption of
innocence; and (2) the district court failed to adequately consider the relative rights of the parties
under Idaho Code section 9-1806. We address these arguments in turn.
A. The district court’s order allowing J.C. to testify by closed-circuit television did not
   violate Baeza’s due process right to a fair trial or infringe on his presumption of
   innocence.
        “The presumption of innocence, although not articulated in the Constitution, is a basic
component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501,
503 (1976).
                 Central to the right to a fair trial, guaranteed by the Sixth and Fourteenth
        Amendments, is the principle that “one accused of a crime is entitled to have his
        guilt or innocence determined solely on the basis of the evidence introduced at
        trial, and not on grounds of official suspicion, indictment, continued custody, or
        other circumstances not adduced as proof at trial.”
Holbrook v. Flynn, 475 U.S. 560, 567 (1986) (quoting Taylor v. Kentucky, 436 U.S. 478, 485
(1978)). The U.S. Supreme Court has “recognized that certain practices pose such a threat to the
‘fairness of the factfinding process’ that they must be subjected to ‘close judicial scrutiny.’ ” Id.
at 568 (quoting Estelle, 425 U.S. at 503–504). If the Court finds an “inherently prejudicial
practice,” the Court considers whether it is “justified by an essential state interest specific to each
trial.” Id. at 568–69.
        Thus, we must consider: (1) whether the alternative method of testimony ordered by the
district court was inherently prejudicial; and, if so, (2) whether the alternative method of
testimony served an essential state interest.
    1. The alternative method of testimony was not inherently prejudicial.
        Baeza argues that allowing J.C. to testify by closed-circuit television was inherently
prejudicial because it presented an unacceptable risk of impermissible factors coming into play at
trial. Baeza reasons that the use of closed-circuit television during J.C.’s testimony implicitly
indicated to the jury that Baeza was a threat and invited the jury to determine his guilt or
innocence on grounds outside the evidence presented at trial. We disagree.
        In Holbrook v. Flynn, the U.S. Supreme Court considered whether having four
conspicuous security personnel in the courtroom was inherently prejudicial and “should be



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permitted only where justified by an essential state interest specific to each trial.” Id. at 568–69.
The Court in Flynn provided an illustrative sample of some practices that implicated the
presumption of innocence and would be subject to close judicial scrutiny:
       Thus, in Estelle v. Williams, we noted that where a defendant is forced to wear
       prison clothes when appearing before the jury, “the constant reminder of the
       accused’s condition implicit in such distinctive, identifiable attire may affect a
       juror’s judgment.” Id., at 504–505, 96 S.Ct. at 1693. Since no “essential state
       policy” is served by compelling a defendant to dress in this manner, id., at 505, 96
       S.Ct. at 1693, this Court went no further and concluded that the practice is
       unconstitutional. This close scrutiny of inherently prejudicial practices has not
       always been fatal, however. In Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25
       L.Ed.2d 353 (1970), the Court emphasized that a defendant may be prejudiced if
       he appears before the jury bound and gagged. “Not only is it possible that the
       sight of shackles and gags might have a significant effect on the jury’s feelings
       about the defendant, but the use of this technique is itself something of an affront
       to the very dignity and decorum of judicial proceedings that the judge is seeking
       to uphold.” Id., at 344, 90 S.Ct., at 1061. Yet the Court nonetheless observed that
       in certain extreme situations, “binding and gagging might possibly be the fairest
       and most reasonable way to handle” a particularly obstreperous and disruptive
       defendant. Ibid.
Id. at 568. Our understanding of Flynn is that inherent prejudice is found where the practice in
question may have a direct impact on the jury’s perception of the defendant. The Flynn Court
eventually determined that the presence of four uniformed state troopers in the courtroom was
not inherently prejudicial due to “the wider range of inferences that a juror might reasonably
draw from the officers’ presence.” Id. at 569. The Court explained:
               To be sure, it is possible that the sight of a security force within the
       courtroom might under certain conditions “create the impression in the minds of
       the jury that the defendant is dangerous or untrustworthy.” Kennedy v. Cardwell,
       487 F.2d 101, 108 (CA6 1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40
       L.Ed.2d 310 (1974). However, “reason, principle, and common human
       experience,” Williams, supra, 425 U.S., at 504, 96 S.Ct., at 1693, counsel against
       a presumption that any use of identifiable security guards in the courtroom is
       inherently prejudicial. In view of the variety of ways in which such guards can be
       deployed, we believe that a case-by-case approach is more appropriate.
Id.
       We find that the same “reason, principle, and common human experience” found in
Flynn is applicable to the present case. There are a number of reasons why a six-year-old child
may testify using closed-circuit video. As noted by the State:
       It is easy for jurors to believe that the district court made allowances for a six-
       year-old to testify by alternate means because of her young age – and not that the


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        defendant is particularly dangerous or culpable. J.C. was given a child-friendly
        oath during her testimony, she was given crayons, she was allowed a coloring
        book, and a support person was allowed to be present during her testimony.
The alternative method used in this case suggested a focus on J.C. as a child rather than Baeza as
the defendant. Indeed, the district court’s introduction to J.C.’s testimony indicated that the use
of closed-circuit video was a “child-friendly procedure.” Further, although the district court
directed that “the camera will be set in such a way that [Baeza] is not seen by the child,” that
information was unknown to the jury.1
        Additionally, the jury was explicitly instructed, both during the trial and in the closing
instructions, to not give any different weight to J.C.’s testimony due to the child-friendly
procedures. “We presume that the jury followed the jury instructions given by the trial court in
reaching its verdict....” State v. Pepcorn, 152 Idaho 678, 690, 273 P.3d 1271, 1283 (2012)
(quoting State v. Carson, 151 Idaho 713, 718, 264 P.3d 54, 59 (2011)); State v. Rawlings, 159
Idaho 498, 506, 363 P.3d 339, 347 (2015). We find no inherent prejudice in the district court’s
order allowing J.C. to testify by way of closed-circuit television.
    2. The alternative method of testimony served an essential state interest.
        To the extent that there may have been any prejudice to Baeza from the procedure used
by the district court (and despite the district court’s instructions to the jury), it was justified by an
essential state interest. The U.S. Supreme Court has stated that protecting minor victims of sex
crimes from further trauma is a compelling interest:
                We have of course recognized that a State’s interest in the protection of
        minor victims of sex crimes from further trauma and embarrassment is a
        “compelling” one. We have sustained legislation aimed at protecting the physical
        and emotional well-being of youth even when the laws have operated in the
        sensitive area of constitutionally protected rights.
Maryland v. Craig, 497 U.S. 836, 852 (internal quotations, citations, and alterations omitted).
The Idaho Legislature emphasized the State’s interest in protecting children from further trauma
when it enacted Idaho Code section 9-1805, which authorizes judges to use alternative methods
of child witness testimony in criminal proceedings to protect children from “serious emotional
trauma;” and in noncriminal proceedings to “serve the best interests of the child.” I.C. § 9-1805.


1
 We note that the outcome of this appeal may well have been different had the original order, entered prior to the
change in judges, been implemented. Under the original order, Baeza and his family were to be removed from the
courtroom during J.C.’s testimony and placed in private rooms where they could view J.C.’s testimony remotely.
This approach would have focused entirely on Baeza and his family.


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        Baeza does not contend that the State has no interest in protecting children who are
alleged victims of child abuse; however, he argues that the use of the alternative method of
presenting J.C.’s testimony undermined the presumption of innocence.2 We disagree.
        Baeza attempts to contrast the present case with Maryland v. Craig, wherein the Court
concluded that allowing an alternative method of witness testimony did not violate the
Confrontation Clause because “[t]he central concern of the Confrontation Clause is to ensure the
reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the
context of an adversary proceeding before the trier of fact.” Craig, 497 U.S. at 845. In Craig, the
Supreme Court reasoned that “a literal reading of the Confrontation Clause would “abrogate
virtually every hearsay exception, a result long rejected as unintended and too extreme.” Craig,
497 U.S. at 848 (quoting Ohio v. Roberts, 448 U.S. 56, 61 (1980), abrogated by Crawford v.
Washington, 541 U.S. 36 (2004)). The Court in Craig explained that the Confrontation Clause
“reflects a preference for face-to-face confrontation” that must “occasionally give way to
considerations of public policy and the necessities of the case.” Craig, 497 U.S. at 849 (emphasis
original).
        We do not view the alternative procedure employed by the district court as having any
significant potential of diminishing Baeza’s presumption of innocence in the eyes of the jury. For
the same reasons that we do not agree with Baeza’s contention that the use of closed-circuit
television implicitly communicated to the jury that he presented some form of threat, we
conclude that there was no appreciable possibility that the jury might have inferred from the use
of the procedure that the district court viewed Baeza as guilty. Again, the district court explained
that J.C. would be testifying by video as a “child-friendly procedure,” which would have
communicated to the jury that the reason for using the procedure related to concern for the child,
rather than some indicia of Baeza’s guilt. We hold that the remote possibility that any member of
the jury would have interpreted the use of the procedure as reflecting the district court’s view of
guilt or innocence was outweighed by an essential state interest.
B. Baeza’s claim that the district court did not adequately consider the factors under
   Idaho Code section 9-1806 is without merit.

2
  Baeza suggests that instead of the procedure used in this case to present J.C.’s testimony, “the courtroom or
witness chair could be rearranged so the child would not have to look in the defendant’s direction.” We note that
such a procedure would have a far greater potential for damage to the defendant’s presumption of innocence, as it
might suggest to the jury that the court had determined that the child witness required some form of protection from
viewing the defendant.


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       Baeza argues that his judgment should be vacated because the district court did not
adequately consider the relative rights of the parties before ordering the alternative method for
J.C. to testify. Baeza contends that in both his response to the State’s motion for an alternative
method and in his motion for reconsideration, he challenged the alternative method under the
Confrontation Clause and under his due process right to a fair trial and the presumption of
innocence. Baeza argues that the district court only specifically addressed conflicting interests
under the Confrontation Clause and did not address Baeza’s presumption of innocence. Baeza
concludes that: “By not addressing Mr. Baeza’s assertions that the alternative method would
violate his due process right to a fair trial by infringing on his presumption of innocence, the
district court did not adequately consider the relative rights of the parties as required by I.C. § 9-
1806.” We disagree.
       In Poole v. Davis, we considered a similar question in the context of the district court
awarding attorney fees under Idaho Code section 54(e)(3) without providing a written
explanation of its prevailing-party determination. Poole v. Davis, 153 Idaho 604, 607, 288 P.3d
821, 824 (2012). We reasoned:
       As we have explained, the law is clearly settled that when awarding attorney fees
       in a civil action, the district court must consider the I.R.C.P. 54(e)(3) factors, but
       need not make specific written findings on the various factors. This rule is based
       upon the text of Rule 54(e)(3), which sets forth the factors that the trial court shall
       consider in determining the amount of such fees. The plain language of the Rule
       does not require written findings on each factor, and the court’s failure to
       specifically address each separate factor does not, by itself constitute a clear
       manifest abuse of discretion. Thus, in the context of the district court’s
       determination of the amount of fees, the absence of written findings does not, per
       se, demonstrate an abuse of discretion.
Id. (internal quotations, citations, and alterations omitted). Our analysis here is the same. Idaho
Code section 9-1806 provides:
       If the presiding officer determines that a standard under section 9-1805, Idaho
       Code, has been met, the presiding officer shall determine whether to allow the
       presentation of the testimony of a child witness by an alternative method and in so
       doing so shall consider:
       (1) Alternative methods reasonably available;
       (2) Available means for protecting the interests of or reducing emotional trauma
       to the child without resort to an alternative method;
       (3) The nature of the case;
       (4) The relative rights of the parties;


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       (5) The importance of the proposed testimony of the child;
       (6) The nature and degree of emotional trauma that the child may suffer if an
       alternative method is not used; and
       (7) Any other relevant factor.
I.C. § 9-1806. Absent from the plain language of the statute is any requirement that the district
court provide findings as to each statutory consideration. Idaho Code section 9-1807(1) does
provide the district court with one requirement: “An order allowing or disallowing the
presentation of the testimony of a child witness by an alternative method must state the findings
of fact and conclusions of law that support the presiding officer’s determination.” I.C. § 9-
1807(1). Baeza does not challenge the district court’s findings of fact or conclusions of law;
rather, Baeza contends that because the district court did not specifically mention the
presumption of innocence in its order, the district court did not adequately consider the parties’
rights as required by Idaho Code section 9-1806(4).
       In its original order regarding alternative methods of presenting J.C.’s testimony, the
district court stated: “The Court has thoroughly considered all of the factors listed in I.C. § 9-
1806.” In its second pretrial order, the district court concluded: “Weighing the defendant’s
interest against the victim’s the court concludes the public and the defendant should be excluded
during the child victim’s testimony, subject to the following conditions.” In its final order on the
subject, the district court stated: “[T]estimony by alternative means will be allowed, and this
court has considered the factors in I.C. Sec. 9-1806.” Thus, the record shows that at all times, the
district court considered the relative rights and interests of the parties and Baeza’s claim of error
is without merit.
                                        IV. CONCLUSION
       We affirm the judgment of conviction.


       Chief Justice J. JONES and Justices EISMANN, BURDICK and W. JONES, CONCUR.




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