               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42436

STATE OF IDAHO,                                 ) 2015 Opinion No. 83
                                                )
       Plaintiff-Respondent,                    ) Filed: December 10, 2015
                                                )
v.                                              ) Stephen W. Kenyon, Clerk
                                                )
EMIL MERCADO,                                   )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho,
       Elmore County. Hon. Lynn G. Norton, District Judge.

       Judgment of conviction for lewd conduct with a minor under sixteen, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant. Brian R. Dickson argued.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent. Russell J. Spencer argued.
                 ________________________________________________

MELANSON, Chief Judge
       Emil Mercado appeals from his judgment of conviction for lewd conduct with a minor
under sixteen. Mercado argues that the district court abused its discretion by allowing a victim
witness coordinator to sit with the eleven-year-old victim while she testified at Mercado’s trial.
Mercado asserts that the district court’s decision was improper because the presence of the
victim witness coordinator improperly influenced the jury and deprived Mercado of a fair trial.
For the reasons set forth below, we affirm
                                                I.
                                 FACTS AND PROCEDURE
       Mercado was charged with committing a lewd act upon an eleven-year-old child. At
trial, the district court allowed the victim’s mother, also a witness, to remain in the courtroom



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during her daughter’s testimony. The state requested that a victim witness coordinator be
allowed to sit at the witness stand with the victim during her testimony, and Mercado objected.
The district court overruled the objection and allowed the victim witness coordinator to sit with
the victim. At the conclusion of the trial, the jury found Mercado guilty of lewd conduct with a
minor under sixteen. I.C. § 18-1508. The district court imposed a unified sentence of twenty
years, with a minimum term of confinement of three years. The district court suspended the
sentence and placed Mercado on probation for twenty years. Mercado appeals.
                                                II.
                                  STANDARD OF REVIEW
       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).
                                               III.
                                           ANALYSIS
A.     Presence of the Victim Witness Coordinator
       Mercado argues that the district court erred in allowing the victim witness coordinator to
sit at the stand with the victim. The issue is controlled by I.C. § 19-3023. This Court exercises
free review over the application and construction of statutes. State v. Reyes, 139 Idaho 502, 505,
80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a statute is plain and unambiguous,
this Court must give effect to the statute as written, without engaging in statutory construction.
State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 Idaho
387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be given its plain,
obvious, and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the language is
clear and unambiguous, there is no occasion for the court to resort to legislative history or rules
of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67.
       Idaho Code Section 19-3023 provides:




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                 When a child is summoned as a witness in any hearing in any criminal
        matter, including any preliminary hearing, notwithstanding any other statutory
        provision, parents, a counselor, friend or other person having a supportive
        relationship with the child shall be allowed to remain in the courtroom at the
        witness stand with the child during the child’s testimony unless in written findings
        made and entered, the court finds that the defendant’s constitutional right to a fair
        trial will be unduly prejudiced.

(emphasis added). The plain and unambiguous language of the statute requires a trial court to
allow a support person to sit at the witness stand if: (1) the witness is a child; (2) the support
person is a parent, counselor, friend, or other person with a supportive relationship; and (3) the
trial court does not make written findings that allowing the support person to accompany the
child witness at the witness stand unduly prejudiced the defendant. In short, unless the trial court
makes a written finding deciding to not allow a support person to sit with a child witness at the
stand, the plain language provides that the support person “shall be allowed.” Thus, in order to
prevail, Mercado must demonstrate that the district court did not properly apply this legal
standard or exercise reason when allowing the victim witness coordinator to sit with the victim in
this case.
        At trial, Mercado anticipated the state’s request to allow a victim witness coordinator to
sit with the victim during her testimony and objected.1 The state argued that the victim witness
coordinator should be allowed to sit with the victim because the victim was eleven years of age
and entitled to have support while testifying.       The district court, in addressing Mercado’s
objection, began by noting that Idaho law protects crime victims and that minor victims have a
right to have a representative present in the courtroom. Having considered that the victim was
eleven years of age and that during her testimony she would be confronted by Mercado for the
first time since the preliminary hearing, the district court decided “to permit the victim witness
coordinator to sit with the victim if that’s what the victim would like during the testimony.” The
district court then acknowledged Mercado’s confrontation rights under the United States
Constitution and specified that the victim witness coordinator would be seated in such a way as
to obstruct neither Mercado’s nor the jury’s view during the victim’s testimony. Accordingly,

1
       We note that I.C. § 19-3023 does not impose a requirement that there must first be a
request for a support person. Rather, the statute weighs the child’s right to have such a person
present against the prejudicial effect on the defendant.

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the district court overruled Mercado’s objection and permitted the victim witness coordinator to
sit at the stand with the victim, finding that it was consistent with the intent of the governing
statute and was permissible in this case.
          Turning to the merits, we look to see if the district court properly applied the statutory
requirements of I.C. § 19-3023. The victim was eleven years of age and was called as a witness
in a criminal proceeding. The state requested that a victim witness coordinator be permitted to
sit with the victim as a support person. While the district court did not expressly make a finding
that this particular person had a supportive relationship with the victim within the meaning of
I.C. § 19-3023, the record supports that such a relationship existed here for two reasons. First,
the very purpose of a victim witness coordinator is to provide support to victims of crimes
throughout the process. Second, we infer from the record that the victim witness coordinator had
the requisite supportive relationship with the victim.
          Finally, the district court made no written findings that the arrangement would unduly
prejudice Mercado. The district court seemingly considered the prejudicial effect of allowing the
victim witness coordinator to sit with the victim. It recognized Mercado’s right to confrontation
and took steps to mitigate any undue prejudicial effect on Mercado by positioning the victim
witness coordinator so that she would block neither Mercado’s view of the victim or pose a
distraction for the jury. Therefore, after considering the circumstances of this case and the
requirements of I.C. § 19-3023, we hold that the district court did not abuse its discretion when it
allowed the victim witness coordinator to accompany the victim at the witness stand while she
was testifying.
B.        Mercado’s Objection at Trial
          Next we address Mercado’s objection as it relates to the state’s request to allow the
victim witness coordinator to sit with the victim at the witness stand. Specifically, Mercado
stated:
                  Your, honor, I think the state was going to ask to have the victim witness
          coordinator sit with her witness. I would object to that. I believe Mom and Dad
          are going to be in the courtroom for support. I think any other person sitting next
          to the witness would not be proper, so I’d object to that.

Mercado did not to offer any further argument as to why allowing the victim witness coordinator
was inappropriate in this case. Mercado’s objection is broad. Mercado seems to object to


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allowing the victim witness coordinator to sit with the victim during her testimony because her
parents would be in the courtroom. Indeed, the district court had previously granted the state’s
request that the mother, a witness in the case, be allowed to remain in the courtroom as a
representative of the victim because she was a minor. The district court then permitted the
state’s additional request to allow the victim witness coordinator to sit with the victim as she
testified. The scope of I.C. § 19-3023 is limited to support persons that shall be allowed at the
witness stand, specifically, and does not address those who are allowed in the courtroom,
generally. The victim witness coordinator was permitted to sit with the victim at the witness
stand while the parents were only permitted to be in the courtroom. Therefore, I.C. § 19-3023
only applies to the victim witness coordinator, not the parents. Mercado has not shown that the
requirement in I.C. § 19-3023 is somehow limited when the district court has permitted a parent
to remain in the courtroom.2 Therefore, we hold that the district court did not err by permitting
the parents to remain in the courtroom while also allowing the victim witness coordinator to sit
with the victim at the witness stand.
C.     Relevant Factors Test
       On appeal, Mercado contends that I.C. § 19-3023 fails to articulate how the trial courts
are to balance the relevant interests and that, because the relevant factors were not evaluated in
his case, it constitutes reversible error. Mercado urges this Court to impose additional review
requirements on trial courts when they consider whether to allow a support person to sit with a
child witness. Specifically, he argues that trial courts should be required to make findings that
the child witness has some substantial and case-specific need, based on the consideration of
multiple factors, to determine whether there would be undue prejudice placed on the defendant if
the support person was permitted to sit with the child witness. The state argues that this issue
was not preserved below.      Assuming without deciding that Mercado’s broad objection did
preserve this argument for appeal, such a multifactor test does not exist in Idaho and we decline


2
        Under these facts, there is no abuse of discretion when a district court allows a parent to
remain in the courtroom when his or her child is testifying in a criminal proceeding. Moreover,
other authority supports the district court’s actions. See, e.g., I.R.E. 615(c) (stating that when a
child is summoned as a witness in any hearing in any criminal matter, including any preliminary
hearing, parents, a counselor, friend or other person having a supportive relationship with the
child may, in the discretion of the court, remain in the courtroom during the child’s testimony).

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Mercado’s invitation to impose such a test now.            As we have noted, I.C. § 19-3023 is
unambiguous and establishes an uncomplicated rule for trial courts to evaluate and apply as the
circumstances of a case necessitate. The trial courts are well equipped and are in the best
position to make these determinations within the context of a given case.
D.     Cautionary Instructions
       Mercado raises additional arguments on appeal. First, Mercado argues that the district
court erred by failing to give a cautionary instruction to the jury that it should not give the
victim’s testimony any more or less weight as a result of the victim witness coordinator’s
presence at the witness stand. Second, he argues that the district court erred in failing to give a
cautionary instruction to the victim witness coordinator about making any physical reactions
during the child witness’s testimony. The state argues that these issues were not properly
preserved for appeal.
       Assuming without deciding that Mercado properly preserved these arguments for appeal,
Mercado has failed to meet his burden. First, as to Mercado’s argument that the district court
erred by failing to give a cautionary instruction to the jury, Mercado has failed to show that he
requested a cautionary jury instruction related to the presence of a victim witness coordinator
during the trial. Idaho Criminal Rule 30(b) provides that “no party may assign as error the
giving of or failure to give an instruction unless the party objects thereto before the jury retires to
consider its verdict, stating distinctly the instruction to which the party objects and the grounds
of the objection.” Because no instruction was requested in this case, we therefore hold that
Mercado has failed to show that the district court erred by failing to give a cautionary jury
instruction.
       Second, Mercado argues that the district court erred in failing to give cautionary
instructions to the victim witness coordinator.        Mercado has failed to show that such an
instruction was requested. Moreover, Mercado provides no authority beyond mere assertion that
imposes such a requirement on the district court or that failing to give such an instruction
constitutes error. Although it may be advisable to give such an instruction, Mercado has failed to
show that the victim witness coordinator did anything improper while at the stand during the
victim’s testimony and therefore Mercado cannot show prejudice. Accordingly, we hold that




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Mercado has failed to show that the district court erred in failing to give a cautionary instruction
to the victim witness coordinator.
                                                 IV.
                                          CONCLUSION
       The district court did not abuse its discretion when it allowed the victim witness
coordinator to accompany the victim at the stand while she was testifying. Neither did the
district court err by permitting the parents to remain in the courtroom while also allowing the
victim witness coordinator to sit with the victim.         Further, we decline to impose a new
multifactor test requirement on trial courts when they apply I.C. § 19-3023. Finally, Mercado
has failed to show that the district court erred in failing to give cautionary instructions to the jury
and the victim witness coordinator. Therefore, we hold that Mercado has failed to show that the
district court abused its discretion in allowing the victim witness coordinator to accompany the
victim at the witness stand during the victim’s testimony at trial. Accordingly, we affirm
Mercado’s judgment of conviction for lewd conduct with a minor under sixteen.
       Judge GUTIERREZ and Judge HUSKEY, CONCUR.




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