                IN THE SUPREME COURT OF THE STATE OF IDAHO

                                    Docket No. 42671-2014

STATE OF IDAHO,                                    )
                                                   )         Boise, May 2015 Term
       Plaintiff/Respondent,                       )
                                                   )         2015 Opinion No. 58
v.                                                 )
                                                   )         Filed: June 23, 2015
MARVIN ORELLANA-CASTRO,                            )
                                                   )         Stephen W. Kenyon, Clerk
       Defendant/Appellant.                        )
                                                   )

       Appeal from the District Court of the Fifth Judicial District of the State of Idaho,
       in and for Jerome County. Hon. John K. Butler, District Judge.

       The judgment of the district court is vacated.

       Elizabeth A. Allred, Deputy State Appellate Public Defender, Boise, argued for
       appellant.

       John C. McKinney, Deputy Attorney General, Boise, argued for respondent.



EISMANN, Justice.
       This is an appeal out of Jerome County from a judgment of conviction following a jury
trial in which the defendant was found guilty of sexually abusing his two minor stepdaughters.
Because the district court erred in denying the Defendant’s motion to try the charges regarding
each stepdaughter separately and the State has failed to show that such error was harmless, we
vacate the judgment and remand this case for further proceedings.


                                              I.
                                     Factual Background.

       On December 7, 2011, an information was filed charging Marvin Orellana-Castro with
unlawful sexual contact with his two stepdaughters. He was charged with two counts of lewd
conduct and two counts of sexual abuse regarding the older girl, who was thirteen and fourteen
years old at the time of the alleged crimes, and he was charged with two counts of sexual abuse
with respect to the younger girl, who was eleven and twelve years of age at the time of the
alleged crimes.
       Prior to trial, Defendant moved to sever the charges regarding the younger girl from the
charges regarding the older girl on the grounds that they occurred at different times and places,
were totally unrelated, and were not part of a common scheme or plan. The district court held
that there was sufficient evidence to show that the alleged sex abuse crimes regarding the two
girls were all part of a common scheme or plan because the two girls were very close in age, both
girls alleged abuse that occurred in the family home, and the alleged abuse all occurred during
the period of 2010 to 2011.
       In July 2012, the criminal charges regarding both girls were tried to a jury. The State
offered evidence from a board-certified psychiatrist and a licensed clinical social worker, both of
whom testified that the older girl was suffering from post-traumatic stress disorder (PTSD). The
psychiatrist testified that it was not clear whether the PTSD was from witnessing Defendant
physically abuse her mother or from being the victim of sexual abuse. The social worker
testified that the PTSD was related to the report of sexual abuse by Defendant and that no other
trauma was reported to him. The State also called a witness who was licensed as a therapist and
a clinical professional counselor and who worked with sex offenders and victims of sexual
abuse. He saw the older girl about fifteen times and testified that her acting out behaviors were
consistent with having been sexually abused. On cross-examination, he testified that the girl’s
symptoms could have been caused by sexual abuse by someone other than Defendant. During
Defendant’s case, he sought to offer evidence that the older girl had been raped at a quinceanera
party held for another girl. A man had allegedly given her a drink that caused her to lose
consciousness or to be dizzy, had sexual intercourse with her while she was unaware of what he
was doing, and later told her what he had done. The district court held that such evidence was
not admissible under Idaho Rule of Evidence 412.
       The jury returned a verdict finding Defendant guilty of two counts of sexual abuse of the
older girl and of two counts of sexual abuse of the younger girl. It was unable to reach a verdict
on the two counts of lewd conduct regarding the older girl.         The district court sentenced
Defendant on the four counts of which he was convicted, and Defendant timely appealed. In
cases that come before this Court on a petition for review of a decision of the Court of Appeals,




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we directly review the decision of the lower court as if the appeal initially came directly to this
Court. State v. Suriner, 154 Idaho 81, 83, 294 P.3d 1093, 1095 (2013).


                                             II.
            Did the District Court Err in Denying Defendant’s Motion to Sever?

       In State v. Field, 144 Idaho 559, 165 P.3d 273 (2007), we stated:
               Whether a court improperly joined offenses pursuant to I.C.R. 8 is a
       question of law, over which this Court exercises free review. In contrast, an
       abuse of discretion standard is applied when reviewing the denial of a motion to
       sever joinder pursuant to I.C.R. 14; however, that rule presumes joinder was
       proper in the first place.

Id. at 564, 165 P.3d at 278.
       That statement could be misconstrued as holding that the joinder of offenses could be
challenged pursuant to Idaho Criminal Rule 8 even though the issue was not raised before the
trial court. Such interpretation would be incorrect. “[I]t is well accepted that issues not argued
before the trial court will not be considered when raised for the first time on appeal.” Farr v.
Mischler, 129 Idaho 201, 205, 923 P.2d 446, 450 (1996). Therefore, a party may not raise on
appeal the issue of improper joinder unless the party raised that issue in the trial court, either by
making a motion to sever or by objecting to a motion to join, whichever applies.
       Criminal Rule 8 permits two or more offenses to be charged in the same complaint,
indictment, or information if they are “based on the same act or transaction or on two (2) or more
acts or transactions connected together or constituting parts of a common scheme or plan.”
I.C.R. 8(a). The initial decision to join two or more offenses in the same charging document is
usually made by the prosecuting attorney in preparing the complaint to initiate criminal
proceedings or in making a presentation to a grand jury. In this case, the complaint filed to
initiate criminal proceedings alleged one count of lewd conduct committed against the older girl.
The State later filed an amended complaint adding the three other charges allegedly committed
against the older girl and the two counts allegedly committed against the younger girl.
       After Defendant was bound over to answer in the district court and the information was
filed, he moved to sever the offenses allegedly committed against the younger girl from the
offenses allegedly committed against the older girl. In his memorandum supporting the motion,
Defendant argued that the offenses allegedly committed against both girls were not part of a


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common scheme or plan and that the evidence admissible regarding the offenses allegedly
committed against one girl would not be admissible under Evidence Rule 404(b) regarding the
offenses allegedly committed against the other girl.
       When an objection to joinder of offenses or defendants is made, the first issue for the trial
court is whether joinder is permissible under Criminal Rule 8. Often, that cannot be determined
from the face of the charging document. Joinder of offenses is permissible “if the offenses
charged, whether felonies or misdemeanors or both, are based on the same act or transaction or
on two (2) or more acts or transactions connected together or constituting parts of a common
scheme or plan.” I.C.R. 8(a). Joinder of defendants is permissible “if they are alleged to have
participated in the same act or transaction or in the same series of acts or transactions
constituting an offense or offenses.” I.C.R. 8(b). However, whether those circumstances are
applicable may not be determinable from the face of the charging document(s) because the
statutes and rules governing the content of charging documents only require, in essence, a written
statement of the essential facts showing the commission of a public offense. See I.C. §§ 19-505,
19-1303, 19-1304, 19-1409, 19-1410, 19-1411, 19-3901; I.C.R. 3, I.C.R. 7. Therefore, the trial
court will have to consider information other than contained in the charging document(s) to
determine whether joinder complies with Rule 8.
       In addition, Idaho Criminal Rule 14 provides that if either the State or a defendant is
prejudiced by the joinder of offenses or defendants, “the court may order the state to elect
between counts, grant separate trials of counts, grant a severance of defendants, or provide
whatever other relief justice requires.” I.C.R. 14. When the defendant moves for severance
under Criminal Rule 14, the alleged prejudice is often that evidence of the defendant’s conduct
which would be admissible in the prosecution of one offense would not be admissible under
Evidence Rule 404(b) in the prosecution of the other offense if it were tried separately. In that
circumstance, the analysis is the same as to whether the offenses are part of a common scheme or
plan permitting joinder under Criminal Rule 8(a) and whether the defendant would be prejudiced
by joinder because the offenses were not part of a common scheme or plan under Evidence Rule
404(b). Both of those decisions are reviewed on appeal under an abuse of discretion standard.
State v. Pepcorn, 152 Idaho 678, 690, 273 P.3d 1271, 1283 (2012) (admissibility of evidence
under Evidence Rule 404(b)); State v. Dambrell, 120 Idaho 532, 537, 817 P.2d 646, 651 (1991)
(denial of motion to sever).


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       In this case, Defendant argued that the offenses allegedly committed against both girls
were not part of a common scheme or plan and that the evidence admissible regarding the
offenses allegedly committed against one girl would not be admissible under Evidence Rule
404(b) regarding the offenses allegedly committed against the other girl. In denying the motion
to sever, the district court held that the facts of this case were more closely related to State v.
Schwartzmiller, 107 Idaho 89, 685 P.2d 830 (1984), in which joinder of charges relating to two
victims was upheld, than State v. Field, 144 Idaho 559, 165 P.3d 273 (2007), in which joinder of
charges relating to two victims was found improper.
       In Schwartzmiller, the defendant was convicted of sexually molesting two fourteen-year-
old boys. The Court held that the offenses were properly joined because the facts demonstrated a
common plan. The Court explained that “Schwartzmiller frequents areas where young boys may
be found, befriends boys with no father figure in the home, entices them from their homes,
lowers their natural inhibitions through the use of drugs and alcohol, and commits sex acts upon
them.” 107 Idaho at 93, 685 P.2d at 834. None of those facts are similar to the facts of this case.
It was not asserted that Defendant frequented places where young girls could be found,
befriended girls with no father figure in the home, enticed them from their homes, or lowered
their natural inhibitions through the use of drugs or alcohol.
       In Field, the defendant was convicted of lewd conduct for manual-vaginal contact with a
seven-year-old girl who was staying at his home while her mother was out of town and of sexual
abuse for rubbing the buttocks of a seventeen-year-old girl who was house-sitting for the
defendant and babysitting his stepdaughter. The offenses were committed two years apart. The
Court held that the trial court erred in granting the State’s motion to join the offenses, stating,
“The similarities that both girls were only temporarily in the household, that the acts occurred in
Field’s home, and that the abuse began with ‘innocent’ touching are insufficient to prove a
common scheme or plan.” 144 Idaho at 566-67, 165 P.3d at 280-81.
       Neither the facts in Schwartzmiller nor those in Field are similar to the facts in this case,
although the facts in Field are more similar than are the facts in Schwartzmiller. A more relevant
case is State v. Grist, 147 Idaho 49, 205 P.3d 1185 (2009), in which the defendant was found
guilty of ten offenses for sexually abusing his live-in girlfriend’s daughter beginning when she
was ten years old and ending when she graduated from high school. Id. at 50-51, 163 P.3d at
1186-87. He would have her sit on his lap while he rubbed his pelvis against her. As she grew


                                                 5
older the abuse progressed to touching her breasts, buttocks, and vagina and to having her
undress for him. Id. During the trial, the district court permitted the State to offer evidence that
the defendant had sexually abused his ex-wife’s daughter in a similar way. The daughter
testified that she lived with the defendant from age eight to age thirteen and that he would have
her sit on his lap or lay and cuddle with him, during which time he would touch her breasts and
buttocks. This Court held that evidence of a defendant’s other bad acts “may be admissible ‘if
relevant to prove . . . a common scheme or plan embracing the commission of two or more
crimes so related to each other that proof of one tends to establish the other.’ ” Id. at 54-55, 205
P.3d at 1190-91.    This Court cautioned the trial courts that “they must carefully examine
evidence offered for the purpose of demonstrating the existence of a common scheme or plan in
order to the [sic] determine whether the requisite relationship exists.” Id. at 55, 205 P.3d at
1191. This Court vacated the judgment of conviction in Grist and remanded the case because the
trial court had not conducted the proper analysis regarding the admissibility of the evidence. Id.
       The following year, this Court again vacated a conviction for sexually abusing a young
girl where the trial court had permitted evidence of other alleged misconduct by the defendant
under the rubric of a common scheme or plan. In State v. Johnson, 148 Idaho 664, 227 P.3d 918
(2010), the defendant was found guilty of two counts of lewd conduct for sexually abusing his
daughter who at the time was between six and seven years of age. Id. at 666, 227 P.3d at 920.
During the trial, the State was permitted to offer evidence that when the defendant was between
fifteen and sixteen years old, he had sexually abused his eight-year-old sister. Id. In addressing
whether the evidence regarding the defendant’s younger sister was admissible, this Court stated
that “at a minimum, there must be evidence of a common scheme or plan beyond the bare fact
that sexual misconduct has occurred with children in the past.” Id. at 668, 227 P.3d at 922. This
Court explained, “The events must be linked by common characteristics that go beyond merely
showing a criminal propensity and instead must objectively tend to establish that the same person
committed all the acts.” Id.
       In Johnson, the trial court found a common scheme or plan because: “(1) both victims
were about seven to eight years old; (2) both victims viewed Johnson as an ‘authority figure’
because he was an older brother or father; (3) both courses of conduct involved Johnson
requesting the victim to touch his penis.” Id. at 669, 227 P.3d at 923. This Court held such
similarities were insufficient, stating:     “These similarities, however, are sadly far too


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unremarkable to demonstrate a ‘common scheme or plan’ in Johnson’s behavior. The facts that
the two victims in this case are juvenile females and that Johnson is a family member are
precisely what make these incidents unfortunately quite ordinary.” Id.
       In the instant case, the district court found that the evidence was sufficient to show a
common scheme or plan because: (a) the two girls were step-daughters of Defendant; (b) they
were close in age; (c) they both alleged having been abused in the home; and (d) the alleged
incidents of abuse occurred during a two-year period. The court noted that the alleged sexual
abuse committed upon the two girls was different in that the alleged abuse regarding the older
girl involved genital contact while the alleged abuse regarding the younger girl involved
touching, but that difference was insufficient to indicate a lack of a common scheme or plan.
       As stated above, the district court’s decision to deny severance is reviewed under an
abuse of discretion standard. In making a determination of whether a trial court abused its
discretion, this Court considers: (1) whether the trial court correctly perceived the issue as one
of discretion; (2) whether the trial court acted within the boundaries of this discretion and
consistent with the legal standards applicable to the specific choices available to it; and (3)
whether the trial court reached its decision by an exercise of reason. Rockeller v. Grabow, 139
Idaho 539, 545, 82 P.3d 450, 457 (2003).
       In this case, the district court did not conduct the analysis that in Grist and Johnson we
stated was required—a common scheme or plan must embrace the commission of two or more
crimes so related to each other that proof of one tends to establish the other. The court did not
even mention those two cases.        The court also did not identify what it contended was
Defendant’s common scheme or plan. Because the court did not conduct the analysis required in
Grist and Johnson, it did not act consistent with the applicable legal standards and therefore
abused its discretion in denying the motion to sever.
       The district court stated, and the State argues on appeal, that any prejudice caused by the
failure to sever would be alleviated by instructing the jury to decide each count separately on the
law and the evidence that applies to it and not to be influenced by their decision as to any other
count. At the conclusion of the trial, the court instructed the jury as follows: “Each count
charges a separate and distinct offense. You must decide each count separately on the evidence
and the law that applies to it uninfluenced by your decision as to any other count. The defendant
may be found guilty or not guilty of any or all of the offenses charged.”


                                                 7
        That instruction is insufficient to alleviate the prejudice from improper joinder. “The
State has the burden of demonstrating beyond a reasonable doubt that such error was harmless.”
State v. Thomas, 157 Idaho 916, 919, 342 P.3d 628, 631 (2015). In this case, there was no
physical evidence corroborating the girls’ testimony. The risk from improper joinder in this case
was that evidence regarding one girl would convince the jury that Defendant had a propensity to
engage in sexual molestation when evaluating the evidence regarding the other girl or her
credibility. The existence of two accusers would enhance their credibility. The instruction did
not address that issue. Even an instruction stating that the jury was not to consider such evidence
as probative of Defendant’s criminal propensity would have been insufficient.                    In State v.
Johnson, such a limiting instruction was given, but we held that it alone could not always prevent
an error from prejudicing the defendant. 148 Idaho at 670, 227 P.3d at 924. “Evidence of prior
sexual misconduct with young children is so prejudicial that there is a reasonable possibility this
error contributed to [Defendant’s] conviction. . . . [A]dmitting such propensity evidence may
reflect ‘the unstated belief that sexual deviancy is a character trait of especially powerful
probative value for predicting a defendant’s behavior.’ ” Id.
        As we stated in Grist, “We once again caution the trial courts of this state that they must
carefully examine evidence offered for the purpose of demonstrating the existence of a common
scheme or plan in order to the [sic] determine whether the requisite relationship exists.” 147
Idaho at 55, 205 P.3d at 1191. Trial courts must realize that following the law as set forth in
Grist and in Johnson will prevent the alleged victims from having to go through a trial a second
time.


                                            III.
    Did the District Court Err in Excluding Evidence of a Prior Rape of the Older Girl?

        As mentioned above, the State offered expert testimony that the older girl was suffering
from PTSD as a result of having been sexually abused by Defendant. During the trial, Defendant
sought to offer evidence of the older girl having been raped at the quinceanera party. 1 The
district court ruled that the evidence was inadmissible. Defendant challenges that ruling on
appeal. Because the case must be retried, we will address that alleged error.


1
  The State did not object on the ground that Defendant had failed to comply with Evidence Rule 412(c), so the
district court did not address whether the requirements of that rule were met.

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       As a general rule, in a criminal case in which the defendant is accused of a sex crime,
evidence of the victim’s prior sexual behavior is inadmissible. I.R.E. 412. Defendant argued to
the district court that evidence of the rape was admissible under the exception for evidence of
“past sexual behavior with persons other than the accused, offered by the accused upon the issue
of whether the accused was or was not, with respect to the alleged victim, the source of semen or
injury.” I.R.E. 412(b)(2)(A). He contended that “injury” under the rule would include emotional
trauma and that evidence of her being raped at the quinceanera party was relevant to show that
such incident was the source of her PTSD. The district court held that the word “injury” meant a
physical injury, not emotional trauma, and it denied admission of the evidence.
       The wording of the Rule of Evidence 412 is the same as the original version of the
federal rule, which used the words “the source of semen or injury.” 92 Stat. 2046 (1978). In
United States v. Shaw, 824 F.2d 601 (8th Cir. 1987), the Eighth Circuit stated with respect to the
federal rule that the common understanding of the word “injury” meant a physical consequence.
Id. at 607. We agree. Therefore, the district court did not err in denying admission of the
evidence on the ground stated. We express no opinion as to whether the evidence would be
admissible under subsection (b)(1) of the rule.


                                              IV.
                                           Conclusion.

       We vacate the judgment and remand this case for further proceedings that are consistent
with this opinion.


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




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