                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                     Docket Nos. 37314/37315

STATE OF IDAHO,                                    )
                                                   )      2011 Opinion No. 20
       Plaintiff-Respondent,                       )
                                                   )      Filed: April 12, 2011
v.                                                 )
                                                   )      Stephen W. Kenyon, Clerk
JAMES FREDRICK PEPCORN, SR.,                       )
                                                   )
       Defendant-Appellant.                        )
                                                   )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Minidoka County. Hon. R. Barry Wood, District Judge.

       Judgment of conviction in Docket No. 37314 for lewd conduct and rape, vacated,
       and case remanded. Judgment of conviction in Docket No. 37315 for sexual
       abuse of a child and lewd conduct, affirmed.

       The Roark Law Firm, Hailey, for appellant. R. Keith Roark argued.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent. John C. McKinney argued.
                 ________________________________________________

LANSING, Judge
       In these consolidated cases, James Fredrick Pepcorn, Sr., appeals from his judgments of
conviction for rape, lewd conduct with a minor, and sexual abuse of a child. Pepcorn argues that
the district court erred during his trial by permitting evidence of other alleged incidents of
Pepcorn’s sexual misconduct with minors. We conclude that error occurred, that the error was
harmless in one case, but that the error necessitates a new trial in the other case.
                                                  I.
                                         BACKGROUND
       In Docket No. 37314, Pepcorn was charged with one count of lewd conduct and one
count of rape for his actions against A.R.G., his niece by marriage. He was charged in Docket
No. 37315 with two counts of sexual abuse of a child and one count of lewd conduct for his acts
against A.J., another niece by marriage. The cases were consolidated for trial.



                                                  1
       A.R.G. testified that when she was six or seven years old, in 1992 or 1993, while her
family was visiting Pepcorn at his farm, he sexually molested her. She said Pepcorn took her for
a ride on a four-wheeler into a field where he digitally penetrated her. She also testified that on a
subsequent visit to the farm, still when A.R.G. was six or seven, Pepcorn anally raped her in his
bedroom.
       A.J. testified to sexual touching while she was visiting the Pepcorn farm with her family
before she was twelve or thirteen. She turned twelve in 1995. According to A.J., Pepcorn
touched her bottom and the sides of her breasts when he gave her hugs. She said Pepcorn also
lifted her onto his horses by placing his hands on her crotch and bottom and massaging her there
while he lifted her up. A.J. said that during one visit, Pepcorn ran his hand up A.J.’s thigh and
close to her vagina after he asked her to sit in his lap while he was watching television.
       Prior to Pepcorn’s trial, the State filed in each case a notice of intent to introduce
evidence under Idaho Rule of Evidence 404(b) to show that Pepcorn had engaged in sexual
misconduct with six other persons related to him by marriage when they were minors. These
persons will be referred to as D.G., P.J., P.G., C.G., T.G., and R.H. After hearing five of the six
witnesses’ testimony at a hearing in limine, the district court preliminarily ruled that the
proffered testimony would be permitted. The court deemed the testimony relevant to show “a
common plan or scheme to sexually abuse an identifiable group of young persons, many of
whom are approximately the same age, with whom the defendant is related, and with whom the
defendant has access to by reason of his familial and blood relationship.” The court also found
their testimony relevant to show absence of mistake or accident, opportunity, and preparation. 1
Then the court determined that the probative value of this evidence was great, but noted that the
volume of this other misconduct evidence increased the possibility of unfairly prejudicial impact.
Ultimately, the court determined that the probative value outweighed the danger of unfair
prejudice as to at least some of the evidence, but left undecided whether the admission of all the
proposed I.R.E. 404(b) testimony would result in its probative value being substantially
outweighed by the danger of unfair prejudice. The trial court did not subsequently address this

1
        The court also found the evidence relevant to credibility. However it later renounced that
position in the context of ruling whether or not the jury should be instructed that the evidence
could be considered for credibility purposes. The court determined that the evidence could not
be used for credibility and so declined to instruct the jury that it could consider the evidence for
that purpose.

                                                 2
issue, nor did Pepcorn subsequently raise it despite being invited by the trial court to submit
supplemental briefing on its I.R.E. 404(b) ruling. The State filed two more notices of intent to
introduce I.R.E. 404(b) evidence prior to trial, adding three witnesses, also related to Pepcorn by
marriage, who would testify to sexual misconduct by Pepcorn when they were minors: A.G.,
A.T., and T.S. Only A.G. and A.T. ultimately testified at trial. Pepcorn’s objections to A.T.’s
and A.G.’s testimony were sustained initially, but both witnesses were ultimately allowed to
testify because the court concluded that Pepcorn opened the door through cross-examination
questions and statements he made while testifying in his own defense.           Pepcorn does not
challenge the admission of A.G. or A.T.’s testimony on appeal. Thus, the other misconduct
evidence on which Pepcorn now posits error came from D.G., P.J., C.G., P.G., T.G., and R.H.
       Five of these witnesses, two females and three males, testified to events that happened
many years prior to the charged conduct: Females D.G. and P.J., both testified that Pepcorn had
once, and on separate occasions, digitally penetrated them while riding in his truck. This
happened to D.G. sometime between 1963 and 1965, when she was six to eight years old. P.J.
was two to five when it happened to her, sometime between 1962 and 1965.
       Three brothers, C.G., P.G., and T.G., also testified to occurrences in the 1960s and 1970s.
C.G. said that Pepcorn masturbated C.G. and forced C.G. to masturbate Pepcorn about once a
week during a period from 1965 to 1967 when C.G. was eleven and twelve. P.G. testified to
multiple instances of Pepcorn masturbating him and Pepcorn forcing P.G. to masturbate Pepcorn
when P.G. was five to nine years old. During this timeframe, Pepcorn also forced P.G. to
masturbate his brothers while Pepcorn watched. These events occurred from 1965 to 1969.
Then, when P.G. was fourteen, in 1974, Pepcorn tried to put his hand in P.G.’s sleeping bag
while they were camping, but no touching occurred because P.G. moved away and thereafter no
further incidents of inappropriate touching occurred. T.G. testified to multiple instances of
Pepcorn masturbating him between 1966 and 1975 when T.G. was from age four to thirteen.
During this timeframe, Pepcorn also once forced T.G. to masturbate his brothers while Pepcorn
watched and once forced T.G. to masturbate Pepcorn. In 1984, when T.G. was twenty-two,
Pepcorn put his hand into T.G.’s sleeping bag while they were camping and touched T.G.’s
penis, but T.G. rolled over, putting a stop to the contact.
       Three other witnesses testified to events that were closer in time to the charged conduct.
A.G. testified that when she was between the ages of twelve and sixteen, from 1988-1992,


                                                  3
Pepcorn touched her breasts while giving her hugs. R.H. testified that from the time she was
seven until she was twelve or thirteen, from 1988 until 1993 or 1994, Pepcorn touched her
breasts when giving her hugs and put his hand on her vagina and massaged her there over her
clothes while he gave her rides on his four-wheeler. She also testified that Pepcorn once helped
her onto his horse by placing his hands on her vagina and massaging her there while he lifted her
up. This incident occurred when she was ten or eleven, in 1991 or 1992. A.T., the brother of
R.H. and victim A.J., testified that he witnessed Pepcorn helping R.H. and A.J. onto a horse by
holding onto them in the crotch area and massaging them there while lifting them up.
       Pepcorn was found guilty on all counts. In A.R.G.’s case, the district court sentenced
Pepcorn to concurrent terms of indeterminate life with twenty years fixed for the lewd conduct
and rape charges. In A.J.’s case, Pepcorn was sentenced to concurrent unified terms of fifteen
years with five years determinate for two counts of sexual abuse of a child under sixteen, and
indeterminate life with twenty years fixed for lewd conduct with a minor under sixteen.
       On appeal, Pepcorn asserts that the testimony of D.G., P.J., C.G., P.G., T.G., and R.H.
should have been excluded under terms of I.R.E. 404(b). 2 The State contends that all of the
challenged evidence was relevant to show that Pepcorn had a “common scheme or plan to
sexually abuse young children related to him by marriage, to show absence of mistake or
accident, and to show ‘Pepcorn’s motive, opportunity and preparation to sexually abuse the two
named victims.”
                                                II.
                                           ANALYSIS
A.     Legal Standards for Admission of Evidence Over a Rule 404(b) Objection
       Evidence of other crimes, wrongs, or acts is not admissible to prove a defendant’s bad
character or criminal propensity, but may be admissible for other purposes such as proof of
motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or

2
        Pepcorn also makes vague assertions in his reply brief concerning whether the
consolidation of A.R.G.’s case with A.J.’s case was prejudicial. As this issue was not raised in
the opening brief and is not supported by legal authority, we will not consider it. State v. Zichko,
129 Idaho 259, 263, 923 P.2d 966, 970 (1996) (holding that a party waives an issue on appeal if
argument or authority is lacking); State v. Gamble, 146 Idaho 331, 336, 193 P.3d 878, 883 (Ct.
App. 2008) (holding that the court will not ordinarily consider issues raised for the first time in
the reply brief).


                                                 4
absence of mistake or accident. I.R.E. 404(b). When determining the admissibility of evidence
to which a Rule 404(b) objection has been made, the trial court must consider three factors:
(1) whether there is sufficient evidence to establish the prior acts as fact; 3 (2) whether the prior
acts are relevant to a material disputed issue concerning the crime charged, other than
propensity; and (3) whether the probative value is substantially outweighed by the danger of
unfair prejudice. State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185, 1188 (2009); State v. Parmer,
147 Idaho 210, 214, 207 P.3d 186, 190 (Ct. App. 2009). On appeal, this Court treats the trial
court’s determination that there is sufficient evidence of the prior misconduct as we treat all
factual findings by a trial court--we defer to the trial court’s finding if it is supported by
substantial and competent evidence in the record. Parmer, 147 Idaho at 214, 207 P.3d at 190.
We exercise free review, however, of the trial court’s relevancy determination. State v. Sheldon,
145 Idaho 225, 229, 178 P.3d 28, 32 (2008); State v. Scovell, 136 Idaho 587, 590, 38 P.3d 625,
628 (Ct. App. 2001). The trial court’s balancing of the probative value of the evidence against
the danger of unfair prejudice will not be disturbed unless we find an abuse of discretion. Grist,
147 Idaho at 52, 205 P.3d at 1188; Scovell, 136 Idaho at 590, 38 P.3d at 628. Courts must
carefully scrutinize prior acts evidence to “avoid the erroneous introduction of evidence that is
merely probative of the defendant’s propensity to engage in criminal behavior.” Grist, 147 Idaho
at 53, 205 P.3d at 1189.
       Evidence of uncharged misconduct may be relevant as evidence of a common plan or
scheme if it shows that the charged and uncharged acts were linked together as stages in the
execution of an underlying plan as, for example, where evidence of an uncharged car theft is
offered to show the accused’s plan to use the car as a getaway for burglary. See State v. Bussard,
114 Idaho 781, 785, 760 P.2d 1197, 1201 (Ct. App. 1988). But evidence of a defendant’s other
crimes similar to the charged offense, if they are not shown to be progressive stages of a single
plan, are not necessarily relevant under the “common scheme or plan” rubric. For example, a
series of thefts that are connected only in the sense that they shared the common goal of getting
money does not show a unifying “plan” within the meaning of Rule 404(b). Id. at 785-86, 760
P.2d at 1201-02.



3
       This finding is necessary because such evidence is relevant only if the jury can
reasonably conclude the act occurred and the defendant was the actor.

                                                 5
       In Grist, our Supreme Court explained that a defendant’s other misconduct may also be
relevant to prove a common scheme or plan if it embraces “two or more crimes so related to
each other that proof of one tends to establish the other, knowledge, identity, or absence of
mistake or accident.” Grist, 147 Idaho at 54-55, 205 P.3d at 1190-91 (emphasis in original).
Thus, in child molestation cases, “there must be evidence of a common scheme or plan beyond
the bare facts that sexual misconduct has occurred with children in the past.” State v. Johnson,
148 Idaho 664, 668, 227 P.3d 918, 922 (2010). The Johnson case provides an example of
insufficient similarity to render prior acts relevant to demonstrate a common scheme or plan.
There, the victims in both the charged offense and the uncharged act were about seven to eight
years old, viewed the defendant as a familial authority figure, and were asked to engage in the
same type of sexual contact. Id. The Court held that these similarities were “sadly far too
unremarkable to demonstrate a ‘common scheme or plan’ in Johnson’s behavior.” The Court
noted that “[t]he fact that the two victims in this case are juvenile females and that [defendant] is
a family member are precisely what make these incidents unfortunately quite ordinary.” Id.
Prior acts that bear only general similarities to the charged offense are more aptly described as
inadmissible evidence merely demonstrating a defendant’s predisposition to commit the type of
crime charged. Id. at 669 n.5, 227 P.3d at 923 n.5. The Supreme Court in Grist cautioned that
“the trial courts of this state . . . must carefully examine evidence offered for the purpose of
demonstrating the existence of a common scheme or plan in order to determine whether the
requisite relationship exists.” Grist, 147 Idaho at 55, 205 P.3d at 1191.
       Evidence offered for the purpose of corroboration of the complaining witness “must
actually serve that purpose.” Id. at 53, 205 P.3d at 1189. As the Supreme Court stated in Grist,
               The trial courts of this state must carefully scrutinize evidence offered
       under I.R.E. 404(b) for purposes of “corroboration” as demonstrating a “common
       scheme or plan” in order to determine whether such evidence actually serves the
       articulated purpose or whether such evidence is merely propensity evidence
       served up under a different name.

Id. at 55, 205 P.3d at 91.
       Although a lapse of time between the charged conduct and the prior acts generally goes
to the weight of the evidence as opposed to its admissibility, “[a]s the subsequent act becomes
more remote from the initial act, the remoteness makes the similarities more attenuated.” State v.




                                                 6
Martin, 118 Idaho 334, 341, 796 P.2d 1007, 1014 (1990); State v. Kremer, 144 Idaho 286, 291,
160 P.3d 443, 448 (Ct. App. 2007).
B.     Application of Legal Standards to These Consolidated Cases
       1.      Testimony of R.H.
       The State’s evidence vis-à-vis A.J. was that Pepcorn had committed sexual abuse by
brushing the sides of A.J.’s breasts and touching her bottom when he hugged her and that he
committed lewd and lascivious conduct by placing his hand on her vaginal area and bottom and
massaging there while he lifted her up onto a horse. Pepcorn testified that if he touched A.J.
inappropriately it was entirely accidental, not for sexual gratification.       Thus, whether the
touching asserted by A.J. was intentional or inadvertent was squarely at issue. R.H.’s testimony
that Pepcorn engaged in precisely the same conduct with her in precisely the same setting when
she was about the same age as A.J., and during approximately the same time frame, was plainly
relevant to show the absence of mistake or accident. Given the highly probative value of R.H.’s
testimony, the district court did not abuse its discretion in determining that the risk of unfair
prejudice did not substantially outweigh the probative value.
       The testimony of R.H. was not, however, probative for any permissible purpose to prove
the State’s allegations regarding A.R.G. The State alleged that Pepcorn took A.R.G. to an
isolated location by giving her a ride into a field on his four-wheeler, where he ordered her to get
off the four-wheeler, pull down her pants, and crouch in front of him, and then digitally
penetrated her. The State also alleged that he anally raped A.R.G. in his bedroom, again when
she was six or seven. The instances to which R.H. testified bear no resemblance to A.R.G.’s
allegations and involve entirely different conduct by Pepcorn with victims several years older
than A.R.G.’s age when she was molested. There is no basis to infer that Pepcorn’s acts of
brushing the breasts and bottom of R.H. from 1988 until 1993 or 1994 were done in preparation
or to advance a plan to penetrate and rape A.R.G. The acts to which R.H. testified do not bear
sufficient similarity to A.R.G.’s allegations to be corroborative of her testimony. In A.R.G.’s
case, motive, intent, or absence of mistake or accident could not have been material disputed
issues, for if the jury believed A.R.G.’s testimony, there could be no plausible question that the
acts were intentional and motivated by a desire to gratify Pepcorn’s sexual desires. Nor was
Pepcorn’s identity as the alleged perpetrator or his opportunity to commit the offenses as alleged




                                                 7
by A.R.G. disputed issues in the case. Accordingly, we discern no probative value of R.H.’s
testimony to support the State’s allegations in A.R.G.’s case.
       2.      Testimony of remaining witnesses
       As to the remaining witnesses whose testimony is challenged here, this Court concludes
that the evidence was inadmissible under I.R.E. 404(b) in both A.J.’s and A.R.G.’s cases.
Pepcorn’s acts that were related by the male victims, C.G., P.G., and T.G., were thoroughly
dissimilar to A.J.’s and A.R.G.’s allegations. The three brothers testified that they were all
forced to masturbate Pepcorn or each other and allow Pepcorn to masturbate them, during
various camping trips and outdoor activities with Pepcorn. The victims were of a different
gender than A.J. and A.R.G., the alleged acts were different, and the incidents were alleged to
have occurred twenty to thirty years before the charged crimes. The only similarities are that the
victims were all juveniles, were sexually abused, and were related to Pepcorn by marriage.
These generalized similarities fall far short of the Grist and Johnson standard, for the charged
and uncharged acts are not “so related to each other that proof of one tends to establish the other,
knowledge, identity, or absence of mistake or accident.” Grist, 147 Idaho at 54-55, 205 P.3d
1190-91; Johnson, 148 Idaho at 668, 227 P.3d at 922.
       The events to which D.G. and P.J. testified are likewise so dissimilar to the charged
offenses that they have no probative value other than to demonstrate propensity. These two girls
testified to incidents of molestation that were remarkably similar to each other, but not to the
experiences of A.J. and A.R.G. D.G. and P.J. each testified that Pepcorn had taken her for a ride
in his truck, asked her to scoot over so she would not fall out if the passenger door accidentally
flew open, pulled her toward him when she did not scoot close enough, and digitally penetrated
the girl while continuing to drive the truck. The only factors that these events have in common
with the charged offenses are that all of the victims were juvenile females related to Pepcorn by
marriage and that they involved digital penetration, which was also alleged by A.R.G. The
circumstances where this occurred were, however, very different from A.R.G.’s report. There
was also a time lapse of about thirty years between the events to which D.G. and P.J. testified
and the charged offenses. 4


4
       Although we hold that all of the challenged testimony should have been excluded in
A.R.G.’s case, and all except the testimony of R.H. should have been excluded in A.J.’s case, it
is understandable that the district court allowed the testimony inasmuch as the Grist and Johnson

                                                 8
       We therefore hold that the testimony of C.G., P.G., T.G., D.G., and P.J. was erroneously
admitted.
C.     Harmless Error Analysis
       This finding of error requires that we next determine whether a new trial is necessary in
each case. The Idaho Supreme Court recently reexamined the standard for determining whether
error in a criminal trial was harmless in State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010). The
Court there adopted the standard that was stated by the United States Supreme Court in
Chapman v. California, 386 U.S. 18 (1967), for harmless error review of a constitutional error.
The Chapman standard requires reversal unless the reviewing court is confident “beyond a
reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at
24. The Perry Court held that this standard would henceforth be applied to all objected-to error,
whether of constitutional proportion or not. Perry, 150 Idaho at 221, 245 P.3d at 973. The Perry
decision recognized that Idaho appellate courts have previously sometimes employed “pre-
Chapman phraseology” when stating the applicable standard, as in State v. Zichko, 129 Idaho
259, 265, 923 P.2d 966, 972 (1996), where the query was phrased as whether “the evidence of
the defendant’s guilt is proven and is such as ordinarily produces moral certainty or conviction in
an unprejudiced mind, and the result would not have been different had an error in the trial not
been committed.” See Perry, 150 Idaho at 221-22, 245 P.3d at 973-74. We note that this
alternative standard has also sometimes been phrased as whether the reviewing court is
convinced “beyond a reasonable doubt, that the result of trial would have been the same absent
the error.” State v. Johnson, 149 Idaho 259, 265, 233 P.3d 190, 196 (Ct. App. 2010). Accord
State v. Severson, 147 Idaho 694, 716, 215 P.3d 414, 436 (2009); State v. Hodges, 105 Idaho
588, 592, 671 P.2d 1051, 1055 (1983); State v. Pecor, 132 Idaho 359, 368, 972 P.2d 737, 746
(Ct. App. 1998).
       If applied literally, the Chapman test and the alternative “same result” expression of the
test call for somewhat different queries to determine whether a trial error was harmless. That is,
Chapman focuses on the effect that the erroneously admitted evidence could have had on the
jury, while the “same result” test focuses on the effect of the untainted evidence, i.e., whether it




decisions had not yet been issued at the time of Pepcorn’s trial. The district court relied upon
authority that was partially overruled by Grist. See Grist, 147 Idaho at 54, 205 P.3d at 1190.

                                                 9
would have led the jury to the same verdict if the improper evidence had never been admitted. In
Perry, our Supreme Court concluded, however, that the alternative phraseology “is so similar
analytically to the standard employed under Chapman, that there is no practical difference.”
Perry, 150 Idaho at 222, 245 P.3d at 974.
       While purporting to apply only the Chapman test, the United States Supreme Court has
also vacillated between an approach that considers only the likely effect on the jury of the
erroneously admitted evidence and an approach which focuses, instead, on the likelihood that the
untainted evidence would have led to the same result. In Satterwhite v. Texas, 486 U.S. 249
(1988), the Supreme Court stated that the Chapman test is not “whether the legally admitted
evidence was sufficient to support” a conviction but “whether the State has proved ‘beyond a
reasonable doubt that the error complained of did not contribute to the verdict.’” Id. at 258
(quoting Chapman, 386 U.S. at 24). But in Harrington v. California, 395 U.S. 250, 253-54
(1969), while expressly confirming that the Chapman test is appropriate, the Court held that an
error was harmless because the untainted evidence of guilt was “overwhelming.”             Justice
Brennan, dissenting, asserted that the majority opinion thereby “shift[ed] the inquiry from
whether the constitutional error contributed to the conviction to whether the untainted evidence
provided ‘overwhelming’ support for the conviction” and that this approach “was expressly
rejected in Chapman.” Id. at 255. Justice Brennan stated that the majority’s inquiry “concerns
the extent of accumulation of untainted evidence” while his inquiry concerns “the impact of
tainted evidence on the jury’s decision.” Id. at 256.
       In Sullivan v. Louisiana, 508 U.S. 275 (1993), it appears that the Court sought to
harmonize the two tests and treat them as the same inquiry. The Court there asserted that it was
applying the Chapman test “because to hypothesize a guilty verdict that was never in fact
rendered--no matter how inescapable the findings to support that verdict might be--would violate
the jury-trial guarantee,” but the Court then went on to note that the correct inquiry is “whether
the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the
constitutional error.” Sullivan, 508 U.S. at 279-80. The Court reconciled the two tests by
explaining that the question is not whether, “a jury would surely have found petitioner guilty
beyond a reasonable doubt” but whether “the jury’s actual finding of guilty beyond a reasonable
doubt would surely not have been different absent the constitutional error.” Id. at 280. Then in
Neder v. United States, 527 U.S. 1, 18 (1999), the Court, still purporting to apply the Chapman


                                                10
test, stated the relevant inquiry as: “Is it clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error?” The Court concluded in that case that
the evidence on an element of the offense that had been omitted from the jury instructions was
uncontested and supported by overwhelming evidence such that “the jury verdict would have
been the same absent the error.” Therefore, the Court said, it was “beyond cavil here that the
error ‘did not contribute to the verdict obtained.’” Id. at 17. See also Washington v. Recuenco,
548 U.S. 212, 213 (2006) (following the Neder approach); 7 WAYNE R. LAFAVE                  ET AL.,

CRIMINAL PROCEDURE § 27.6(e) (3d ed. 2007) (observing that the most recent United States
Supreme Court opinions follow the approach of “asking what the outcome would have been had
the trial error not occurred” rather than applying the Chapman test “assessing the effect of the
error on the trial that took place”); Brent M. Craig, “What Were They Thinking?”--A Proposed
Approach to Harmless Error Analysis, 8 FLA. COASTAL L. REV. 1, 9 (2006) (asserting that the
United States Supreme Court has “jump[ed] around; at times using the pure Chapman [sic] test
of whether the constitutional error contributed to the verdict, and at other times appl[ying] the
Harrington [sic] test of whether, notwithstanding the error, there was overwhelming evidence to
convict the defendant beyond a reasonable doubt”).
       As Justice Brennan’s dissent in Harrington illustrates, strict and literal application of the
two expressions of the test can lead to different conclusions as to whether the trial error was
harmless. 5 Nevertheless, in light of the United States Supreme Court’s continued use of the



5
       An illustrative circumstance where different conclusions may be dictated by the different
emphases of the two tests is posited in Linda E. Carter, The Sporting Approach to Harmless
Error in Criminal Cases: The Supreme Court’s “No Harm, No Foul” Debacle in Neder v.
United States, 28 Am. J. Crim. L. 229, 243 (2001):
       Suppose that there is a rape-murder prosecution in which the evidence admitted at
       trial includes: the defendant’s DNA, found at the scene of the crime; his
       fingerprints, found everywhere at the scene; the fact that he was the victim’s
       estranged husband and jealous of her relationship with another man; the fact that
       he had threatened her; and his confession to the crime. Now assume that, on
       appeal, the confession is found to be unconstitutionally coerced. If the question is
       whether there is enough evidence without the confession to conclude that the jury
       would have found the defendant guilty beyond a reasonable doubt, the answer is
       probably yes. If, however, the question is whether the erroneously admitted
       confession contributed to the verdict in a significant way, it is much more difficult
       to conclude that the error was harmless. The confession was probably a highly
       important piece of evidence to the jury, as the defendant’s own words. In that

                                                11
“same result” test rather than a literal application of the Chapman standard in its most recent
decisions, and our own Supreme Court’s statement in Perry that the two analytical approaches
are so similar “that there is no practical difference,” we conclude that the Chapman harmless
error standard does not require reversal if the reviewing court can conclude beyond a reasonable
doubt that the jury’s finding of guilt “would surely not have been different absent the . . . error.”
Sullivan, 508 U.S. at 280.
       Applying this test leads us to differing results in the two cases that are before us. With
respect to the case charging offenses against A.R.G., we cannot say that the jury would have
arrived at the same verdict had it not heard the erroneously admitted testimony of six witnesses
delineating a variety of acts of sexual molestation of children spanning a period of approximately
thirty years. Absent that evidence, in A.R.G.’s case the State’s evidence would have consisted of
only the testimony of A.R.G., A.J., a nurse practitioner, and a counselor. A.J.’s testimony6
described abuse that was so dissimilar to A.R.G.’s that it had little or no probative value to
strengthen the State’s proof that Pepcorn committed rape and lewd conduct with A.R.G. The
nurse practitioner testified about a sexual assault examination conducted twelve to thirteen years
after the charged offenses, when A.R.G. was nineteen years old. Although the nurse practitioner
said that A.R.G. had abnormal tearing in her anus that is consistent with her claim that she was
anally penetrated by Pepcorn, the nurse practitioner could not opine as to the cause of the tear,
saying only that it was abnormal. The probative value of this evidence was limited by the great
lapse of time between the alleged criminal act and the forensic examination. A counselor who
saw A.R.G. when she was fifteen and again about two years later opined that A.R.G. fit the
diagnostic criteria for post-traumatic stress disorder and major depressive disorder.            The
counselor did not testify to an opinion that A.R.G. had been sexually molested. Pepcorn testified
and denied all of A.R.G.’s allegations.      Although the State’s evidence was unquestionably




       case, the confession most certainly “contributed” to the verdict, even though there
       is a significant amount of properly admitted evidence.
6
       We do not imply that A.J.’s testimony would be admissible at a new trial in A.R.G.’s
case. We consider it here only because the two cases were consolidated for trial and, on appeal,
Pepcorn does not claim error in that consolidation. Therefore, we have not been asked to
determine whether A.J.’s testimony was properly heard in A.R.G.’s case.

                                                 12
sufficient to support a guilty verdict, we cannot say beyond a reasonable doubt that the jury in
this case would have so found in the absence of the very voluminous, irrelevant, and highly
prejudicial evidence of molestations of other children by Pepcorn. As in the Johnson case,
“[evidence] of prior sexual misconduct with young children is so prejudicial that there is a
reasonable possibility this error contributed to [the] conviction” and “[t]he danger is too great in
this sexual-abuse case that the jury may have believed the prior misconduct demonstrated [the
accused’s] deviant character traits.” Johnson, 148 Idaho at 670, 227 P.3d at 924. Therefore, it is
necessary to vacate Pepcorn’s judgment of conviction in A.R.G.’s case, Docket No. 37314, and
remand for a new trial.
       We reach a different conclusion, however, in the case charging violations against A.J.,
Docket No. 37315, A.J.’s testimony was corroborated by the properly admitted testimony of
R.H., who said that Pepcorn had engaged in precisely the same improper acts of holding her in
the crotch area while lifting her onto horses and brushing her breasts and bottom while hugging
her, by A.G. who testified to the same type of touching of her breasts while Pepcorn hugged her,
and by A.T., who witnessed Pepcorn’s molestation of both A.J. and R.H. as Pepcorn lifted them
onto a horse. Given all of this corroborative testimony in A.J.’s case, we are confident beyond a
reasonable doubt that the jury would have found Pepcorn guilty of sexual abuse and lewd
conduct with A.J. even if none of the incorrectly admitted evidence had been heard.
                                                III.
                                         CONCLUSION
       The judgment of conviction in Docket No. 37315 is affirmed.               The judgment of
conviction in Docket No. 37314 is vacated and the case is remanded for further proceedings
consistent with this opinion.
       Chief Judge GRATTON and Judge GUTIERREZ CONCUR.




                                                13
