               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket Nos. 37393/37395

STATE OF IDAHO,                                  )     2012 Unpublished Opinion No. 383
                                                 )
       Plaintiff-Respondent,                     )     Filed: March 1, 2012
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
PATRICK E. McAVOY,                               )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
       Defendant-Appellant.                      )     BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho,
       Elmore County. Hon. Cheri C. Copsey, District Judge.

       Judgment of conviction for video voyeurism and unified sentence of five years,
       with three years determinate, affirmed; judgment of conviction for possession of
       sexually exploitive material and video voyeurism and consecutive sentences of
       ten years indeterminate and five years indeterminate, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Erik R. Lehtinen, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Elizabeth A. Koeckeritz, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Judge
       Patrick E. McAvoy appeals from his judgments of conviction and sentences for one count
of possession of sexually exploitive material and two counts of video voyeurism. Specifically,
McAvoy asserts the district court erred in allowing Idaho Rule of Evidence 404(b) prior bad act
evidence to be admitted at trial.      McAvoy also argues the district court unconstitutionally
imposed maximum sentences as punishment for exercising his right to a jury trial. For the
reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       Sometime during 2006, McAvoy set up a hidden, motion-sensored camera in his
bedroom.    This camera was connected to a computer and recorded images of his adult



                                                 1
sister-in-law, while undressed, as she used a tanning bed located in that bedroom. Following
discovery of one such recorded video on McAvoy’s computer, he was charged in March 2009
with one count of video voyeurism (first case). An investigation of the first case and search of
McAvoy’s computer revealed recorded images captured by the same camera of a
sixteen-year-old girl using the tanning bed and engaging in other activities that were sexual in
nature. Roughly a month later, based on those images, a second case was filed against McAvoy
charging one count of possession of sexually exploitive material, one count of video voyeurism,
and one count of sexual battery of a minor child sixteen or seventeen years of age (second case).
       McAvoy waived the preliminary hearing in both cases and was bound over to district
court. The two cases were consolidated after an information had been filed as to each. At a
pretrial conference, McAvoy indicated he was going to plead guilty to the first case and exercise
his right to a jury trial in the second case. The State then declared its intent to offer evidence
from the first case in the trial for the second case and filed a motion in limine to admit the Idaho
Rule of Evidence 404(b) prior bad act evidence. McAvoy objected to the introduction of any
such evidence. The district court initially ruled that, although relevant, the evidence from the
first case would not be allowed due to concerns of prejudice, but cautioned that any hint from
McAvoy or his defense counsel regarding intent, motive, accident, or mistake would “open the
door” to the Rule 404(b) evidence and result in the district court reconsidering the admissibility
of the evidence.
       On the morning of trial, McAvoy pled guilty to one count of video voyeurism, Idaho
Code § 18-6609, in the first case and the second case proceeded.               During the State’s
case-in-chief, defense counsel cross-examined one of the State’s witnesses, Detective Ty Larsen.
Defense counsel asked whether McAvoy had indicated at the time of his interview with the
detective that certain videos were intentionally made or had said whether there were more videos
beyond that which sparked the investigation in the first case. The detective testified that he did
not recall any statements McAvoy made regarding any intent to record, but that McAvoy had
stated that he believed there were no other videos. Defense counsel also inquired about the
detective’s involvement in investigating child pornography cases, the detective’s indication of
that involvement in his affidavit for a search warrant, and whether any images of underage girls
were found in the forensic analysis of McAvoy’s computer beyond a single recording of the
underage victim. The witness indicated that no other images of people under the age of eighteen


                                                 2
were found. Based on that cross-examination, the State renewed its Rule 404(b) motion in
limine. The district court ruled McAvoy had opened the door and allowed in the evidence from
the first case, including testimony relating seven prior recording dates and publication to the jury
of five video clips of the first victim, to prove that McAvoy intended to videotape the victim in
the second case. At the conclusion of the trial, the jury found McAvoy guilty on two counts,
possession of sexually exploitive material, I.C. § 18-1507A, and video voyeurism, I.C. §
18-6609, and acquitted him on the third count, sexual battery of a minor.
       At a consolidated sentencing hearing for both the first and second cases, the district court
imposed, collectively, a unified twenty-year sentence, with three years determinate: a unified
term of five years, with three years determinate for video voyeurism in the first case; a ten-year
indeterminate term for possession of sexually exploitive material in the second case; and a five-
year indeterminate term for video voyeurism in the second case. The sentences were to run
consecutively.
       McAvoy timely appeals, asserting the district court erred in allowing the Rule 404(b)
evidence to be introduced in the second case and that the district court unconstitutionally
punished McAvoy at sentencing for exercising his right to a jury trial.
                                                II.
                                          DISCUSSION
A.     Whether the District Court Erred in Admitting Rule 404(b) Evidence
       McAvoy argues the district court erred in admitting the prior bad act evidence from the
first case at the trial of the second case because the evidence was irrelevant to prove anything
other than criminal propensity. Evidence of other crimes, wrongs, or acts is not admissible to
prove a defendant’s criminal propensity. I.R.E. 404(b); State v. Johnson, 148 Idaho 664, 667,
227 P.3d 918, 921 (2010); State v. Parmer, 147 Idaho 210, 214, 207 P.3d 186, 190 (Ct. App.
2009). However, such evidence may be admissible for a purpose other than that prohibited by
Idaho Rules of Evidence 404(b). Parmer, 147 Idaho at 214, 207 P.3d at 190. To determine the
admissibility of evidence of prior bad acts, a court must use a two-tiered analysis: (1) the
evidence must be relevant; and (2) the probative value must substantially outweigh any unfair
prejudice to the defendant. State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185, 1188 (2009). Under
the first tier, the prior bad act evidence is only relevant if the jury can reasonably conclude the
act occurred and the defendant was the actor. Id. Thus, there must be sufficient evidence to


                                                 3
establish the prior bad acts as fact. Id. Relevancy in this context also requires that the prior bad
act evidence is relevant to a material, disputed issue concerning the crime charged, other than
criminal propensity. Id. We defer to a trial court’s factual determination that a prior bad act has
been established by sufficient evidence if it is supported by substantial and competent evidence
in the record. Parmer, 147 Idaho at 214, 207 P.3d at 190. Whether evidence is relevant is an
issue of law. Johnson, 148 Idaho at 667, 227 P.3d at 921; Parmer, 147 Idaho at 214, 207 P.3d at
190. Therefore, when considering admission of evidence of prior bad acts, we exercise free
review of the trial court’s relevancy determination. Parmer, 147 Idaho at 214, 207 P.3d at 190.
       The second tier in the analysis is the determination of whether the probative value of the
evidence is substantially outweighed by unfair prejudice. Grist, 147 Idaho at 52, 205 P.3d at
1188. When reviewing this tier we use an abuse of discretion standard. Id. When a trial court’s
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry
to determine: (1) whether the lower court correctly perceived the issue as one of discretion;
(2) whether the lower court acted within the boundaries of such discretion and consistently with
any legal standards applicable to the specific choices before it; and (3) whether the lower court
reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d
1331, 1333 (1989).
       McAvoy makes three arguments regarding the admission of the Rule 404(b) evidence in
the second case: (1) McAvoy did not open the door to the evidence; (2) if McAvoy opened the
door, the district court failed to undertake the proper analysis in determining whether the
evidence should be admitted; and (3) even if the court used the proper analysis, it erred in
admitting the evidence.
       1.      Opening the door
       Evidence falling within Rule 404(b) may be introduced at trial provided that the State
gives the defendant notice of its intent to use the evidence. See Johnson, 148 Idaho at 667, 227
P.3d at 921. The evidence may, upon a district court’s affirmative ruling on a motion in limine,
then be used to establish an element of the crime in the prosecution’s case-in-chief, whether or
not a defendant opens the door. See Parmer, 147 Idaho at 219, 207 P.3d at 195. Where a trial
judge initially rules against the admission of Rule 404(b) evidence, the defendant may
nevertheless open the door by putting the relevant acts covered by Rule 404(b) at issue. See




                                                 4
State v. Cardell, 132 Idaho 217, 218, 970 P.2d 10, 11 (1998); State v. Gardiner, 127 Idaho 156,
161-62, 898 P.2d 615, 620-21 (Ct. App. 1995).
       The portion of defense counsel’s cross-examination of the detective, which the district
court held opened the door to the Rule 404(b) evidence, was as follows:
       [Defense Counsel]:    Do you recall Mr. McAvoy relating to you that the image
                             regarding [victim in the first case] was intentional?
       [Detective Larsen]:   No, I do not recall it being intentional.
       [Defense Counsel]:    Let me clarify the question. Do you recall whether he
                             related that?
       [Detective Larsen]:   No.
       [Defense Counsel]:    You have no recollection at all?
       [Detective Larsen]:   I remember discussing it and discussing about what had
                             occurred in that video that I did witness.
       [Defense Counsel]:    But you do not recall that specific statement from him?
       [Detective Larsen]:   No, I do not.
       [Defense Counsel]:    Do you recall him making a statement that--well, he told
                             you when asked that there shouldn’t be any other videos;
                             correct?
       [Detective Larsen]:   Correct.
       [Defense Counsel]:    Do you recall whether there was a statement of whether
                             there were any other videos intentionally made?
       [Detective Larsen]:   Are you asking a question?
       [Defense Counsel]:    Yes.
       [Detective Larsen]:   His comment to me or his reply back to me is he did not
                             believe there was [sic] any other videos.
       [Defense Counsel]:    And that’s all that was said?
       [Detective Larsen]:   Yes.
An additional portion of cross-examination cited to by the State on its renewed motion was as
follows:
       [Defense Counsel]:    You’d indicated that you were involved with other child
                             pornography cases; correct?
       [Detective Larsen]:   Yes, sir.
       [Defense Counsel]:    And it was based on your experience that you believed
                             there would be other images stored in the computer; is that
                             correct?
       [Detective Larsen]:   Possibility.
       [Defense Counsel]:    Okay. And you related that to the judge when you asked
                             for the search warrant?
       [Detective Larsen]:   Yes.
       [Defense Counsel]:    But to your knowledge, no other images were found; is that
                             correct?




                                                5
       [Detective Larsen]:    Not of people under the age of 18.
       [Defense Counsel]:     Okay. Thank you. And I meant to ask that. Thank you for
                              clarifying that.
On the renewed Rule 404(b) motion, the district court found the issue of the intentional nature of
the capture and retention of the videos had been clearly raised by defense counsel. The district
court also concluded an implication that the videos were not intentionally taken was belied by
the evidence in the first case and the reference to child pornography left the jury with the
impression the investigation was regarding a matter other than video voyeurism, as was the case.
       McAvoy argues these findings were in error. He asserts he did not open the door because
defense counsel’s cross-examination does not constitute evidence of a “mistake” or “accident”
defense.   Granted, a potential defense must be raised through evidence presented by the
defendant before the State may introduce evidence concerning that issue. State v. Montoya, 140
Idaho 160, 163-64, 90 P.3d 910, 913-14 (Ct. App. 2004). However, we need not discuss whether
cross-examination constitutes evidence of a defense because intent is an element of the offenses
to which McAvoy was charged. 1 Where defense counsel’s cross-examination of the State’s
witness left the impression of mistake and raised doubt as to an element of the offenses, the State
may be allowed to bring in Rule 404(b) evidence proving otherwise. See, e.g., Cardell, 132
Idaho at 219-20, 970 P.2d at 12-13.
       Moreover, this Court has previously found that a defendant can open the door to Rule
404(b) evidence through cross-examination of the State’s witness. Gardiner, 127 Idaho at
161-62, 898 P.2d at 620-21. In Gardiner, the defendant was charged with felony injury to child.
During trial, defense counsel objected pursuant to Rule 404(b) to the State’s direct examination
of the defendant’s wife regarding a specific prior instance of the defendant’s inappropriate
disciplining of the child victim. The district court sustained the objection. In cross-examination
of the wife, though, defense counsel elicited testimony regarding that incident and the district
court later allowed other witnesses to testify regarding the same event to impeach the wife’s
testimony. We found no error because the cross-examination by defense counsel had opened the
door to such testimony. Gardiner, 127 Idaho at 161-62, 898 P.2d at 620-21; cf. State v. Rupp,
118 Idaho 17, 18-19, 794, P.2d 287, 288-89 (Ct. App. 1990) (finding direct examination of



1
       See Idaho Code §§ 18-6609, 18-1507A, 18-1508A.


                                                6
witness by defense counsel did not open the door to Rule 404(b) evidence because the core of the
question did not imply a character trait of the defendant).
       We conclude there was no error in the district court’s finding that McAvoy opened the
door to the admission of evidence from the first case in the trial for the second case. Defense
counsel’s questions to Detective Larsen specifically sought to elicit testimony about McAvoy’s
statements regarding his intent in making the videos. Likewise, by the testimony regarding the
search warrant and Detective Larsen’s involvement in other child pornography cases, defense
counsel was attempting to emphasize that no other videos of underage persons were found--again
going to the issue of lack of intent or mistake on McAvoy’s part in videotaping the underage
victim. It is more difficult to prove intent when only one recording is found, as opposed to a
situation where multiple recordings were found. Such was the evidence from the first case
involving multiple recordings, which directly related to whether McAvoy’s video recordings
were intentional.   Further, the purpose of the search warrant was not to investigate child
pornography, but video voyeurism. Defense counsel’s questioning opened the door for the State
to correct any false impressions to the jury affecting the element of intent.
       2.      Rule 404(b) analysis
       Next, McAvoy argues that even if he opened the door to the admission of the Rule 404(b)
evidence, the district court did not undertake the proper analysis to determine its admissibility.
In making his argument, McAvoy cites to the district court’s language in its initial decision to
deny the State’s motion in limine. The district court stated, “This is a pure 403, not 404(b)
because it is clearly relevant. It’s absolutely relevant . . . . So it’s really [an Idaho Rule of
Evidence] 403 analysis.” McAvoy argues the district court should have first determined the
noncharacter issue--intent, knowledge, motive, lack of mistake, or otherwise--to which the
evidence was relevant.
       As noted above, in determining the admissibility of Rule 404(b) evidence, a court must
find that it is both relevant and that the probative value outweighs any unfair prejudice to the
defendant. Grist, 147 Idaho at 52, 205 P.3d at 1188. This Rule 404(b) analysis may be
described as determining relevance under Idaho Rule of Evidence 401, see State v. Alsanea, 138
Idaho 733, 739, 69 P.3d 153, 159 (Ct. App. 2003) (defining relevancy under Rule 404(b) using
Rule 401), and then undertaking a weighing analysis under Idaho Rule of Evidence 403, see
State v. Pokorney, 149 Idaho 459, 465, 235 P.3d 409, 415 (Ct. App. 2010) (defining the


                                                  7
weighing analysis under Rule 404(b) in terms of Rule 403). Because Rule 404(b) encompasses
both Rules 401 and 403, in relation to a specific type of evidence, discussion of either of those
rules is congruent with a proper Rule 404(b) analysis.
       Turning to this case, McAvoy is correct that in its initial ruling the district court glossed
over the relevancy determination and went directly into a discussion of Rule 403. Still, a
discussion of Rule 403 was entirely appropriate, as the court was required to weigh the probative
value against the unfair prejudice. Also, when the State renewed its motion, the district court
took care to explain why it was, at that time, going to allow the evidence in. The district court
first summarized the portions of cross-examination given above and then went on to state:
       The reason I think that’s important is that that’s implying that he indicated that
       this was not intentional when, in fact, we know that that’s not the case. In
       addition, because there’s inquiry as to the intention--the intentional nature of the
       [first case] video, it appears to me that that opens the door for the State to bring in
       the fact that, as to his excuse for the [first case] videos, the fact that they found
       additional videos, and the fact that he has admitted to the essence, and I’m not
       going to allow [the prosecutor] to say he’s pled guilty, but she can certainly
       inquire as to--she can certainly present appropriate evidence of the fact he’s
       admitted to the [first case] video, that it was intentional, and that it was for sexual
       purposes.
                In addition to that, there’s quite a lot of discussion about whether there
       were other images on the video. And in fact . . . at this time, we are just speaking
       of just one event in July of 2008? Yes.[ 2]
                Now, the reason that’s important is that we know that there’s many more
       events than the July 2, 2008 event. And I think, at this point, the State is entitled
       to bring that out. It really becomes apparent when you direct him to the search
       warrant affidavit. . . . [The district court recounted the cross-examination of
       Detective Larsen regarding his involvement in child pornography cases and the
       search warrant]
                Now, the reason that’s significant to me is, first, if you read the affidavit,
       the affidavit did not say anything about other child porn. It simply relates [the
       detective’s] experience with regard to pornography. Furthermore, . . . the search
       warrant was executed at a time when the thrust of the search warrant was because
       of video voyeurism. The thrust of the search warrant had nothing to do with child
       pornography.
                And in my view, that’s opened up the door for the State to bring in, really,
       what this search warrant was about. It was about video voyeurism, and there are
       three charges in this case that remain, one of those is video voyeurism. So, I am
       going to allow it in, because I’ll find that the videotaping of [victim in first case]
       was intentional, but it--that was originally denied by the defendant and the State’s


2
       July 2, 2008, was the date of the video recording involving the sixteen-year-old victim.

                                                 8
       entitled to show that it was originally denied, and go into the story that was told to
       the officer. I also find that the other [first case] videos will come in.
Within this discussion, the district court undertook to explain the evidence in relation to the issue
of intent and to prevent misleading the jury to believe the focus of the case was child
pornography. While the district court did not use the word “relevant,” or other forms thereof, it
is evident that was the purpose of the discussion. Further, the relevancy was in regards to a
purpose not prohibited in Rule 404(b): the use of the evidence to either prove intent or to correct
false impression is for a purpose other than to show criminal propensity.
       Additionally, the district court spoke directly on the renewed Rule 404(b) motion to the
limited purposes of the evidence and the weighing analysis of Rule 403:
               Now, what I intend to do is tell the jury that the evidence--after this has
       been introduced--has been introduced for the purpose of showing the defendant
       committed crimes and acts other than that for which he is on trial. Such evidence,
       if believed, is not to be considered by you to prove the defendant’s character or
       that the defendant has a disposition to commit crimes. Such evidence may be
       considered by you only for the limited purpose of proving the defendant’s intent,
       preparation, plan, knowledge, or absence of mistake or accident.
               Because it’s very clear, from the overall cross-examination, that the
       argument is made that there was only one image on this computer, and I’ve
       already heard what the argument’s going to be is that it was immediately deleted.
       And it seems to me the State’s entitled to show that there was more than one
       image. There was only one image of this particular victim, and she is the only
       one who is underage.
               But the thrust of this case is not just about her age, it’s about video
       voyeurism, and I think the State’s entitled to combat the--or to introduce
       evidence, at this point, because I do find that it’s relevant, and I do not find that
       the relevance is substantially outweighed by an undue prejudice to the defendant.
The district court was well aware of the required analysis under Rule 404(b) and made findings
of both relevance and probative value versus unfair prejudice. We find no error in the district
court’s analysis.
       3.      Admission of the 404(b) evidence
       Finally, McAvoy argues that even if the district court undertook a proper analysis, it erred
in allowing the 404(b) evidence from the first case to be admitted. We review the relevancy
determination de novo and a determination that the probative value outweighs the unfair
prejudice for an abuse of discretion. Parmer, 147 Idaho at 214, 207 P.3d at 190.




                                                 9
               a.     Relevancy
       McAvoy argues the evidence from the first case is too dissimilar to be used in the second
case and that the evidence was relevant only to show criminal propensity.            He points to
differences such as McAvoy’s knowledge that the first victim would be using the tanning bed
whereas he did not know the second victim would be using it; that there were multiple videos of
the first victim and only one of the second victim; and that McAvoy admitted the retention of the
videos of the first victim was intentional but consistently denied the same in regards to the
second victim. The State responds the evidence from the first case was relevant to show intent
because it corroborated forensic analyst testimony that certain files of the underage victim were
downloaded and intentionally transferred to a second computer, where images of the first victim
were found, before being deleted from the original computer.            Therefore, the evidence
contradicted any inference that capturing and saving the video of the second victim were
accidental.
       Relevant evidence is evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it would
be without the evidence. I.R.E. 401; State v. Harvey, 142 Idaho 527, 532, 129 P.3d 1276, 1281
(Ct. App. 2006). In the prosecution of a specific intent crime, which includes sexual battery of a
minor and video voyeurism, intent is not always sufficiently at issue to allow admission of
evidence of other crimes. State v. Roach, 109 Idaho 973, 974, 712 P.2d 674, 675 (Ct. App.
1985). Rather, the evidence of intent needed to convict may be manifested by the circumstances
attending the act. Id. However, in sex crimes cases, evidence of other sex crimes with third
persons is often admitted on the issue of intent and usually involves victims having the same
status as the victim of the charged offense. Id. at 975, 712 P.2d at 676. In considering the
probative value of the evidence, courts consider whether the acts are similar, the victims are the
same or similar, and whether the defendant exhibited the same state of mind when committing
the acts. State v. Wood, 126 Idaho 241, 246, 880 P.2d 771, 776 (Ct. App. 1994). Age difference
between adult and child victims at the time of a defendant’s alleged sexual misconduct does not
render the evidence of prior bad acts irrelevant. Cardell, 132 Idaho at 220, 970 P.2d at 13.
       We conclude the testimony and evidence from the first case was relevant to show
McAvoy’s intent in capturing and saving images of the victim in the second case. McAvoy
admitted to setting up the motion-sensored camera. He asserted the purpose was not to record


                                                10
the first or second victim, but to monitor his wife who was potentially suicidal and had other
mental health issues. However, in the first case, he admitted that while capturing video of the
first victim was not initially intentional, he purposefully saved the video clips he recorded and
continued to both record and save additional videos thereafter.         While he denied that any
retention of the video recording of the second victim was purposeful, the images were found on
the same computer as the retained videos at issue in the first case. Admitting the videos from the
first case, showing that there were multiple recordings, and having a forensic analyst testify
regarding that evidence all tend to show that any recording found of the underage victim in the
second case was also intentionally saved.
       We also find the events are similar in nature and kind, supporting both relevancy and
probative value. Both recordings were made with the camera and recording system set up by
McAvoy. The acts depicted in all of the videos are the victims’ use of the tanning bed. Though
the recording of the victim in the second case captured additional sexual acts by the victim, the
other circumstances attending the recording are the same.          To countervail the similarities,
McAvoy points out differences between the evidence from the first case as compared to the
evidence in the second. The dissimilarities McAvoy points to, however, bolster the conclusion
that the videos from the first case are relevant for a purpose other than criminal propensity. First,
whether he knew that the second victim would be using the tanning bed was a disputed fact; the
State produced testimony tending to indicate that McAvoy was aware the underage victim would
be using the tanning bed and recorded the activity despite McAvoy’s consistent denial of such
knowledge. Therefore, evidence from the first case was certainly relevant to show the capture of
the video was intentional. Next, that there were multiple videos of the first victim and only one
of the second victim may have actually strengthened McAvoy’s argument that he lacked the
requisite intent as opposed to making the evidence from the prior case irrelevant. Finally, it is
not a sound argument to say that because McAvoy admitted the retention of the videos of the
first victim was intentional but consistently denied the same in regards to the second victim, the
prior evidence is irrelevant. For this argument, McAvoy relies only on his own testimony, a
questionable position in light of the fact that the second case involved an underage victim with
charges carrying the potential for more serious consequences.




                                                 11
       The evidence from the first case tended to prove absence of mistake or accident, or to
show McAvoy’s intent. Therefore, the district court did not err in concluding the evidence was
relevant.
               b.      Unfair prejudice
       Even if the evidence is relevant, the probative value of the evidence in relation to intent
or lack of mistake or accident must outweigh the prejudice to the defendant. Cardell, 132 Idaho
at 221, 970 P.2d at 13. In weighing the probative value against the unfair prejudice, evidence is
not unfairly prejudicial simply because it is damaging to the defendant’s case; evidence is
unfairly prejudicial only when it suggests decision on an improper basis. Pokorney, 149 Idaho at
465, 235 P.3d at 415. In any weighing under Rules 403 or 404(b), both the quantity of other
similar crimes and their temporal proximity to the crime being charged is relevant to the trial
court’s consideration. Cooke v. State, 149 Idaho 233, 241, 233 P.3d 164, 172 (Ct. App 2010).
Also, in determining prejudice, it is important to note that prejudice resulting from improper
admission of evidence is not easily cured by an instruction. State v. Guinn, 114 Idaho 30, 34,
752 P.2d 632, 637 (Ct. App. 1988); D. Craig Lewis, IDAHO TRIAL HANDBOOK § 13.8 (2d ed.
2005). The admission of unnecessary, inflammatory details of a prior crime may require reversal
of a conviction even where a more restrained presentation would have been proper. State v.
Nichols, 124 Idaho 651, 656, 862 P.2d 343, 348 (Ct. App. 1993).
       McAvoy’s stance for a defense was that he intentionally set up the video camera, that
certain recordings were discovered on his computer that instigated an investigation (the content
of which would be kept out because of Rule 404(b)), and that when he discovered the recording
of the underage victim, captured while his family was on vacation, and that it was sexual in
nature, he immediately deleted it. At the time the district court first denied the State’s 404(b)
motion, the defense also planned on calling a computer forensic analyst to testify that the video
clips (segmented portions of a single recording) of the second victim were immediately deleted,
hence the reason they were found in a “hidden file” with only a thumbnail. Without needing to
engage in the whole technical discussion, McAvoy had evidence to combat the State’s theory of
the case that rather than deleting the video clips, the recording was actually transferred and saved
to the hidden file. However, when McAvoy brought his intent to issue and left false impressions
with the jury, the State, in fairness, was allowed to provide a full picture of intent and the full
nature of McAvoy’s actions. In light of the circumstances in which McAvoy opened the door,


                                                12
the district court found the probative value of the evidence in the first case outweighed the
prejudice to McAvoy.      The record shows the district court acted within the bounds of its
discretion.
       Additionally, we note that after the district court ruled on the State’s renewed Rule
404(b) motion and allowed evidence from the first case to come in, defense counsel and the
prosecutor stipulated that the evidence introduced at trial would consist of relating seven prior
recording dates of the first victim and publication of five video clips of the first victim--all from
just one of the many recordings. The restrained presentation was adequate to go to the purpose
of intent and, yet, kept out unnecessary repetition of inflammatory details in regards to the first
case. Consequently, we conclude the admission of testimony and video clips from the first case
shows no abuse of discretion.
B.     Whether the Basis for Sentencing was Unconsitutional
       McAvoy asserts the district court violated his constitutional rights and abused its
discretion in sentencing by punishing him for going to trial in the second case. He contends the
district court punished him for trying to raise reasonable doubt regarding the evidence while
making his closing arguments. In closing arguments, McAvoy advanced the possibility that his
step-son, who was dating the underage victim at the time, may have colluded with the underage
victim to make the video. The State argues in response that the district court recognized the
difference between punishing a defendant for exercising a trial right and learning more about a
defendant because he goes to trial, and did not impermissibly punish the defendant based on the
knowledge learned from trial.
       We exercise free review when determining whether constitutional rights have been
violated in light of the facts of the individual case. State v. Kellis, 148 Idaho 812, 814, 229 P.3d
1174, 1176 (Ct. App. 2010). In sentencing, it is improper for a court to penalize a defendant for
exercising his or her right to trial.    Id. However, a court is not entirely prohibited from
considering continued assertions of innocence as a factor in fashioning an appropriate sentence.
Id. at 815, 229 P.3d at 1177. Rather, a court may properly consider a defendant’s refusal to
acknowledge guilt when evaluating the defendant’s rehabilitation potential because
acknowledgment of guilt is a critical first step toward rehabilitation. Id. Furthermore, this Court
will consider statements made by a sentencing court within context and will look at the record as
a whole. State v. Murphy, 133 Idaho 489, 494, 988 P.2d 715, 720 (Ct. App. 1999). For example,


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in Kellis, the defendant argued his constitutional rights were violated during sentencing because
the district court imposed harsher sentences based on the defendant’s continued assertions of
innocence after a guilty verdict by a jury. Kellis, 148 Idaho at 813-14, 229 P.3d at 1175-76.
During sentencing, the district court stated among other things:
        I can’t hold it against you, Mr. Kellis, that you took this case to trial. There are a
        number of statements in the presentence [report] that suggest that I hold it against
        you for exercising your constitutional right to testify. I don’t think I can, as a
        judge, punish someone for the exercise of their constitutional rights. But what I
        do find offensive is that you have no remorse. You are not taking responsibility
        for the actions that you have been convicted of, and I can and do punish you for
        that.
                ....
                . . . I guess, given the fact that you have shown no remorse and have taken
        no responsibility, the easy question is whether I should impose a life sentence. I
        should impose a life sentence given that you haven’t demonstrated any remorse
        and haven’t taken responsibility for any of these offenses . . . .
Id. at 814, 229 P.3d at 1176. This Court concluded that, when placed in context, the district
court’s comments expressed concern in relation to whether the defendant was amenable to
rehabilitation.   Id. at 815-16, 229 P.3d at 1177-78.        Though some of the district court’s
statements may have been problematic standing alone, when viewed in the context of the entire
record, the district court permissibly took into account factors relevant to the defendant’s
prospects for rehabilitation. Id. at 816-17, 229 P.3d at 1178-79.
        We conclude the district court in this case did not unconstitutionally punish McAvoy for
exercising his right to trial. When reviewed in context, the comments McAvoy contends are
problematic merely represent the district court’s concerns with McAvoy’s pattern of behavior
over an extended period of time 3 and his lack of empathy for the victims in the two cases. The
district court stated, “In looking at this, I don’t believe in punishing somebody for going to trial,
but the problem with going to trial is oftentimes I learn things about the crime and about the
defendant that I would not otherwise have learned.” The district court went on to speak of how
the sister-in-law, the underage victim, and the alternate perpetrator (the step-son) had all been
victimized in the case and how McAvoy appeared to have no emotional reaction to the hardship

3
        From the presentence report, the district court was aware that since 2006, when McAvoy
first set up the motion-sensored camera, McAvoy’s wife indicated she had found images of
herself while sleeping nude taken by her husband, and a camera in the bathroom and near the hot
tub that McAvoy was attempting to use to capture videos, and that she had confronted him on
occasion about his behavior, which he consistently denied or minimized.

                                                 14
of the victims. The district court noted that although McAvoy expressed remorse for his victims,
the district court did not find McAvoy credible on this account. The district court also discussed
issues such as McAvoy’s focus on the impact to himself, his controlling and rigid behavior and
his need for treatment, which would be most effectively provided through commitment to an
institution. Perhaps most importantly, the district court carefully explained why it was taking the
recommendation from the State for the determinate portion of the sentence, but was going to
extend the indeterminate portion of the sentences:
       Once you are released on parole, and, quite frankly, so long as you do the sex
       offender treatment while incarcerated, you will probably go on parole because
       you will be a model prisoner. So I have no doubt that you will go on parole.
               Once you are released, I want to make sure there’s a parole officer who
       goes and checks on you because this behavior is so easily hidden, I want to make
       sure that you are on somebody’s radar so that you don’t go out and reoffend.
               So I’m not going to follow the indeterminate recommendation that was
       made by counsel. But that’s the reason for it. I think the fixed portion is
       appropriate. I think that gives you plenty of time to think about what you did.
               Also in my opinion there is no rehabilitation until someone has a deterrent.
       In your case your wife’s being upset with you was not a deterrent. Not a
       deterrent. So I think you need to know that if you do this behavior again, you are
       going back to prison. And the only way that that’s going to happen is if you have
       it hanging over your head. I think it is the only way that you will be motivated to
       get the treatment that you clearly need.
We find it apparent that the district court did not impose the indeterminate portion of the
sentence as punishment for McAvoy exercising his right to trial, but rather in context, because of
his problematic behavior over a span of years and his lack of empathy for his victims. The
district court spoke of the need for treatment through the structure and supervision of a
correctional institution, and the presentence report indicated the same need.        Some of the
statements by the district court may seem be dubious when taken alone. However, it was
permissible for the district court to consider facts it learned overall through trial, through the
presentence report, and through its own assessment of credibility when determining how
treatment and rehabilitation could be most effective for McAvoy and in fashioning an
appropriate sentence in response to those considerations.
                                               III.
                                        CONCLUSION
       McAvoy has failed to show any error by the district court in admitting Rule 404(b) prior
bad act evidence in his trial. Additionally, McAvoy has not shown that the district court violated


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his constitutional rights at sentencing. Therefore, we affirm the district court’s judgments of
conviction and sentences in both the first and second cases.
       Judge LANSING and Judge MELANSON CONCUR.




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