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[W] State v. Avila3/4/2002
2002 OPINION NO. 13
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Craig C. Kosonen, District Judge.
Judgment of conviction for sexual battery of a minor not involving lewd conduct, affirmed.
Mario Anthony Avila was charged with sexual battery of a child after he fondled a female co-worker. At his jury trial, the victim testified that during the incident Avila spoke about a previous sexual encounter with a striptease dancer at a strip club. The district court admitted the statement over Avila's objection. The jury subsequently found Avila guilty of sexual battery of a child not involving lewd conduct. Avila appeals, contending that the district court erred in allowing the introduction of the prior sexual act and that the district court gave erroneous jury instructions.
I. FACTUAL AND PROCEDURAL BACKGROUND
Based on the allegations of a sixteen-year-old female co-worker, A.A., Avila was charged with sexual battery of a minor child sixteen or seventeen years old, Idaho Code § 18-1508A. At Avila's jury trial, the State presented the following evidence through the testimony of A.A. On June 2, 1999, thirty-six-year-old Avila asked A.A. to accompany him on a five to ten-minute drive to recycle cardboard boxes. During the drive, A.A. said that she complained to Avila about a recent back injury that had left her sore. Avila responded by massaging her back, and A.A. did not ask Avila to stop. While Avila massaged her back, A.A. testified that Avila asked her what kind of boys she liked dating and told her that he would like to date a girl who was A.A.'s age.
Shortly thereafter, Avila and A.A. arrived at the recycling center. After the cardboard was unloaded, Avila and A.A. drove back to work. A.A. said that Avila resumed massaging her back and told her about a recent experience he had with a woman striptease dancer at a strip club. After telling his story, A.A. stated that Avila grasped her breast, told her how much he loved her, and attempted to kiss her. A.A. pulled away from Avila and demanded that he stop. Avila complied with A.A.'s request and drove back to work. A.A. told her mother about the incident with Avila. The matter was reported to police, and Avila was charged with sexual battery of a minor child sixteen or seventeen years of age.
During A.A.'s testimony, she began to tell how, while Avila was rubbing her back, he "started talking about the previous weekend he went to a strip club." Defense counsel objected on relevance grounds. The trial court initially reserved ruling on the objection and allowed the testimony to continue in order to "see where it goes." A.A. then related Avila's story about the stripper. According to A.A., Avila said that when he was at the club he noticed a woman performing who he believed was more beautiful than his wife. Once the stripper's performance was over, Avila said he started to leave but the stripper stopped him before he could exit. The stripper asked for his phone number and Avila gave it to her. Avila said that he and the stripper then went to a dark corner of the club and fondled one another. Later in A.A.'s testimony, the district court readdressed the objection to the evidence of Avila's statements about the stripper and stated that defendant's objection was overruled.
The district court instructed the jury on three separate offenses for which Avila could be convicted: sexual battery of a minor involving lewd conduct, I.C. § 18-1508A(1)(a); sexual battery of a minor not involving lewd conduct, I.C. § 18-1508A(1)(c); and battery, I.C. § 18-903. The jury found Avila guilty of sexual battery not involving lewd conduc
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