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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket Nos. 43293/43294

STATE OF IDAHO,

Plaintiff-Respondent,

v.

JOSE LUIS SANCHEZ,

Defendant-Appellant.

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2017 Opinion No. 16

Filed: February 17, 2017

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Seventh Judicial District, State of Idaho, 

Bingham County. Hon. Jon J. Shindurling, District Judge. 

Judgment of conviction for two counts of sexual abuse of a child under the age of 

sixteen years and four counts of lewd conduct with a child under sixteen, vacated

and case remanded.

Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

GUTIERREZ, Judge

Jose Luis Sanchez appeals from his judgment of conviction for two counts of sexual 

abuse of a child under the age of sixteen years and four counts of lewd conduct with a child

under sixteen involving two different victims. Specifically, Sanchez argues his convictions 

should be vacated because (1) the district court improperly joined the offenses against the two 

victims; (2) the State committed misconduct by allowing its witness to comment about Sanchez’s

invocation of his right to counsel; and (3) the impact of such cumulative errors was not harmless. 

For the reasons set forth below, we vacate and remand.
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I.

FACTUAL AND PROCEDURAL BACKGROUND

In 2014, the State charged Sanchez with three counts of lewd conduct with a child, Idaho 

Code § 18-1508, and two counts of sexual abuse of a child, I.C. § 18-1506, for offenses Sanchez

allegedly committed against an eight-year-old female, J.C., in 2006. The five counts alleged that 

this conduct occurred between April 1 and June 30, 2006.

After the preliminary hearing in that case, another female came forward with allegations 

of sexual abuse by Sanchez. The State then charged Sanchez in a separate case with two counts 

of lewd conduct with a child and one count of sexual abuse of a child for offenses Sanchez

allegedly committed against a different eight-year-old female victim, T.C., in 2006. The five 

counts alleged that this conduct occurred between April 17 and June 12, 2006. 

The State then filed a “motion to consolidate” the cases on the basis that they arose “from 

the same time period and factual situations.” The State also argued that Sanchez would not be 

unduly burdened by the consolidation of the cases and that joinder would best serve the interests 

of judicial efficiency. The district court held a hearing on the motion, at which time Sanchez 

raised his objection. At the conclusion of the hearing, the district court requested additional 

briefing from the parties regarding the joinder motion. In its briefing, the State argued that the 

charges should be tried together pursuant to Idaho Criminal Rule 8(a) because they constituted 

parts of a common scheme or plan. After reviewing the record and considering the parties’ 

arguments, the district court granted the State’s motion. 

Prior to trial, the State moved to dismiss the sexual abuse of a minor charge against T.C., 

which the court granted. The matter proceeded to a jury trial. Ultimately, the jury convicted 

Sanchez of five counts of lewd conduct with a child and two counts of sexual abuse of a child. 

Sanchez timely appeals.

II.

ANALYSIS

Sanchez first argues that the district court erred in granting the State’s motion to join the 

charged offenses against two different victims into a single trial. Whether a lower court properly

joined offenses pursuant to I.C.R. 8(a) is a question of law over which we exercise free review. 

State v. Field, 144 Idaho 559, 564, 165 P.3d 273, 278 (2007). A court may order two or more 

complaints, indictments, or informations to be tried together if the offenses “could have been 
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joined in a single complaint, indictment or information.” I.C.R. 13. Two or more offenses may 

be joined in a single 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). Because a charging document may not contain all of 

the facts necessary for making a decision whether joinder complies with I.C.R. 8, the trial court 

may also have to consider information outside the charging documents. State v. OrellanaCastro, 158 Idaho 757, 760, 351 P.3d 1215, 1218 (2015). However, in reviewing whether initial 

joinder was proper, the appellate court considers what was alleged by the State, not what the 

proof at trial ultimately showed. Field, 144 Idaho at 565, 165 P.3d at 279. 

Here, the State alleged that joinder was proper because the offenses constituted parts of a 

common scheme or plan. The Idaho Supreme Court case Orellana-Castro provides guidance as 

to the proper analytical framework for determining whether offenses are part of a common 

scheme or plan. In Orellana-Castro, the State charged a defendant in a single information with 

sexually abusing his two stepdaughters. Id. at 759, 351 P.3d at 1217. Prior to trial, the defendant 

filed a motion to sever the offenses against the younger victim from those against the older 

victim, which the district court denied. Id. On appeal, the Court noted that on a motion to sever,

which is properly reviewed under an abuse of discretion standard, the first issue for the district 

court to resolve is whether joinder was permissible under I.C.R. 8. Orellana-Castro, 158 Idaho

at 760, 351 P.3d at 1218. The Court held that the district court failed to conduct the proper 

analysis in determining whether joinder was permissible, thus the court abused its discretion. Id.

at 762, 351 P.3d at 1220.

Orellana-Castro instructs us that the proper analysis in determining whether joinder is 

permissible requires consideration of the standards set forth in State v. Grist, 147 Idaho 49, 205 

P.3d 1185 (2009) and State v. Johnson, 148 Idaho 664, 227 P.3d 918 (2010). Orellana-Castro, 

at 762, 351 P.3d at 1220. Although both Grist and Johnson addressed the admissibility of 

evidence under Idaho Rule of Evidence 404(b) and not the permissibility of joinder, these cases

hold that trial courts must closely scrutinize whether evidence of other bad acts truly 

demonstrates the existence of a common scheme or plan. See Johnson, 148 Idaho at 668-69, 227 

P.3d at 922-23; Grist, 147 Idaho at 54-55, 205 P.3d at 1190-91. “[A]t 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.” Johnson, 148 Idaho at 668, 227 P.3d at 922. The events of a common 
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scheme or plan “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. Essentially, “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.” Orellana-Castro, 158 Idaho at 762, 351 P.3d at 1220. 

The Court in Orellana-Castro went on to discuss three Idaho Supreme Court cases

relevant to the inquiry into whether various sexual abuse charges are sufficiently similar to 

constitute evidence of a common scheme or plan. First, in State v. Schwartzmiller, 107 Idaho 89, 

685 P.2d 830 (1984), the Court held that the district court properly joined the charges of sexual 

abuse against two different fourteen-year-old male victims into a single trial. Id. at 93, 685 P.2d 

at 834. The Court reasoned that, although the acts took place at different times and with 

different people, the facts demonstrated that the defendant had a common plan. Id. The Court 

explained that the defendant “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. Id. Given these 

similarities, the Court affirmed the joinder on the basis of common scheme or plan. Id.

Then in Field, the Court held that facts alleged by the State were insufficient to 

demonstrate a common plan or scheme. Field, 144 Idaho at 566, 165 P.3d at 280. There, the 

district court granted the State’s motion to join the charge of lewd conduct against a seven-yearold victim from 2003 with the charge of sexual battery against a seventeen-year-old victim from 

2001. Id. at 564, 165 P.3d at 278. The Supreme Court rejected the State’s argument that the two 

offenses were connected as parts of the defendant’s common scheme or plan to take advantage of 

underage females who came into his home to babysit or be babysat. Id. at 566, 165 P.3d at 280. 

The Court found it significant that the victims’ ages were different, the type of sexual contact 

was different, and the incidents occurred two years apart. Id. The Court acknowledged the 

similarities in the case--that both girls were only temporarily in the household, the acts occurred 

in the defendant’s home, and the abuse began with “innocent” touching--but found those 

similarities insufficient to prove a common scheme or plan. Id. 

Finally, in Johnson, the Court again held that the facts alleged by the State were 

insufficient to demonstrate a common plan or scheme. Johnson, 148 Idaho at 669, 227 P.3d at 

923. There, the defendant was charged with abusing his six or seven-year-old daughter. Id. at 
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666, 227 P.3d at 920. During trial, the district court admitted evidence of the defendant’s

previous, uncharged sexual conduct with his younger sister as evidence of a common scheme or 

plan under I.R.E. 404(b). Id. The State maintained that the conduct with the sister was similar to 

the charged offense in that “(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; and (3) both 

courses of conduct involved Johnson requesting the victim to touch his penis.” Id. at 669, 227 

P.3d at 923. Acknowledging these similarities, the Supreme Court nevertheless held that the 

facts were insufficient to demonstrate a common scheme or plan. Id. The Court explained, 

“These similarities . . . are sadly far too unremarkable to demonstrate a ‘common scheme or 

plan’ in [the defendant’s] behavior. The facts that the two victims in this case are juvenile 

females and that [the defendant] is a family member are precisely what make these incidents 

unfortunately quite ordinary.” Id. 

Because we exercise free review in determining whether joinder was proper, we consider 

the facts as alleged by the State in support of its joinder motion to determine if the evidence was 

sufficient to demonstrate a common scheme or plan. Thus, we consider the allegations contained 

in the charging documents as well as the arguments made by the State in its supporting brief and 

during the hearing. The State maintains that the offenses committed by Sanchez against the two 

victims had sufficient common elements that they each constituted part of a common scheme or 

plan. The State alleged the following common elements: (1) the acts took place in the same 

span of months during 2006; (2) the victims were the same age and gender; (3) the acts of abuse 

were very similar; and (4) the acts took place in the Sanchez family home while the victims were 

in the care of Sanchez and his wife. 

The State contends that State v. Longoria, 133 Idaho 819, 992 P.2d 1219 (Ct. App. 1999)

is relevant to our determination, as in that case we held that evidence of a defendant’s other 

sexual crimes demonstrated a common scheme or plan.1 Id. at 824, 992 P.2d at 1224. However, 

Longoria has since been implicitly overruled by Orellana-Castro, Grist, and Johnson. In those 

cases, the Supreme Court indicated a heightened emphasis on the scrutiny required in

determining whether evidence demonstrates a common scheme or plan. Moreover, the facts of 

 1 In State v. Longoria, 133 Idaho 819, 992 P.2d 1219 (Ct. App. 1999), we held that the 

facts of the defendant’s charges against three victims demonstrated a common plan where the 

victims were around the same age and each act occurred late at night during sleepovers with the 

defendant’s daughters. Id. at 825, 992 P.2d at 1225. 
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Longoria are strikingly similar to those in Johnson, where the Court held that the facts were 

sadly too unremarkable to demonstrate the type of commonality necessary to evidence a 

common scheme or plan.

Turning to the facts of this case, we conclude that joinder was improper here because, as 

in Johnson and Field, the similarities in the charged conduct and the victims are “far too 

unremarkable” to imply a common scheme or plan. As in Johnson, the victims were similarly

aged and the acts of abuse were similar. And, as in Field, the acts occurred in Sanchez’s home 

as a result of the victims being left in Sanchez’s family’s temporary care. Just as the Court held 

that these facts were insufficient to demonstrate a common scheme or plan, we also hold these 

similarities are insufficient to rise to the level of showing a common scheme or plan. Notably 

absent from the State’s allegations is any indicia that Sanchez’s conduct was part of a scheme or 

plan. Unlike Schwartzmiller, where the defendant took affirmative steps to select and entice his 

victims, Sanchez’s conduct more accurately evidences an opportunistic tendency that is 

unfortunately entirely unremarkable in sexual abuse cases. Because the evidence alleged by the 

State did not extend beyond merely showing a criminal propensity to opportunistically abuse 

young females entrusted to Sanchez’s family’s care, we conclude that joinder of the offenses 

against the two victims was improper.

Having found error in the joinder of the charges, the potential exists that the jury heard 

inadmissible evidence. Thus, we turn our inquiry into whether this error necessitates a new trial. 

Where a defendant has shown error, reversal is appropriate unless the appellate court is 

convinced beyond a reasonable doubt that the violation did not contribute to the jury’s verdict. 

State v. Perry, 150 Idaho 209, 227-28, 245 P.3d 961, 979-80 (2010). Any error will be deemed 

harmless if the court is able to say beyond a reasonable doubt that the result of the trial would 

have been the same if the error had not occurred. State v. Almaraz, 154 Idaho 584, 598, 301 P.3d 

242, 256 (2013). 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).

The State first contends that even if joinder was improper because the evidence did not 

establish a common scheme or plan, the evidence would nevertheless have been admissible 

under I.R.E. 404(b) for another purpose. The State argues that because Sanchez’s defense was 

based upon inability and lack of opportunity, the evidence would have been admissible to show 

opportunity, intent, and lack of mistake or accident. 
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It is well established that evidence of other crimes, wrongs, or acts is not admissible to 

prove a defendant’s criminal propensity. I.R.E. 404(b). However, evidence of other crimes, 

wrongs, or acts may be admissible for a purpose other than to show propensity, such as proof of 

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or 

accident. State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct. App. 2002). In 

determining admissibility of other bad acts, the Supreme Court utilizes a two-tiered analysis. 

Grist, 147 Idaho at 52, 205 P.3d at 1188. The first tier involves the following two-part inquiry:

(1) whether there is sufficient evidence to establish the other bad acts as fact; and (2) whether the 

other bad acts are relevant to a material disputed issue concerning the crime charged, other than 

propensity. Id. The second tier requires the balancing test under I.R.E. 403 of whether the 

probative value of the evidence is substantially outweighed by unfair prejudice. Grist, 147 Idaho 

at 52, 205 P.3d at 1188. Regarding the first part of the test, we assume without deciding that 

there was sufficient evidence to establish the other bad acts as fact. However, we are not 

persuaded by the State’s argument that the evidence was relevant to show intent or lack of 

mistake or accident. As acknowledged by the State, Sanchez based his defense upon inability 

and lack of opportunity. He maintained that he did not commit the crimes, not that he committed 

them by accident or with an innocent intent. Thus, neither intent nor mistake was sufficiently at 

issue. See State v. Roach, 109 Idaho 973, 974-75, 712 P.2d 674, 675-76 (Ct. App. 1985)

(holding intent not at issue where defendant claimed he did not commit the act). C.f. State v. 

Ehrlick, 158 Idaho 900, 915, 354 P.3d 462, 477 (2015) (holding intent at issue where defendant 

claimed he did not intend to commit the crime). We do, however, find merit in the State’s 

contention that the evidence was probative of opportunity. Evidence is relevant if it has “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. 

Certainly, evidence that Sanchez sexually abused two victims during the time frame that he was 

experiencing a significant hand injury--and during periods where he and his wife were tasked 

with babysitting--has a tendency to show a probability that he had sufficient opportunity to 

commit the crime. See State v. Gomez, 151 Idaho 146, 155, 254 P.3d 47, 56 (Ct. App. 2011).

However, concluding that the evidence is relevant to show opportunity does not end our 

inquiry. Under the second part of the test, relevant evidence “may be excluded if its probative 

value is substantially outweighed by the danger of unfair prejudice.” I.R.E. 403. Evidence is not 
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unfairly prejudicial simply because it is damaging to a defendant’s case. State v. Floyd, 125 

Idaho 651, 654, 873 P.2d 905, 908 (Ct. App. 1994). Evidence is unfairly prejudicial when it

suggests a decision on an improper basis. State v. Ruiz, 150 Idaho 469, 471, 248 P.3d 720, 722 

(2010). Specific to child sexual abuse cases, the Idaho Supreme Court has noted that the 

admission of other sexual abuse evidence carries a significant risk that jurors will act on a “belief 

that sexual deviancy is a character trait of especially powerful probative value for predicting a 

defendant’s behavior.” Field, 144 Idaho at 569-70, 165 P.3d at 283-84. 

In Grist, the Supreme Court acknowledged the substantial influence of character 

evidence, stating:

The prejudicial effect of [character evidence] is that it induces the jury to believe 

the accused is more likely to have committed the crime on trial because he is a 

man of criminal character. Character evidence, therefore, takes the jury away 

from their primary consideration of the guilt or innocence of the particular crime 

on trial. The drafters of I.R.E. 404(b) were careful to guard against the admission 

of evidence that would unduly prejudice the defendant, while still allowing the 

prosecution to present probative evidence.

Grist, 147 Idaho at 52, 205 P.3d at 1188 (internal quotations and citations omitted). Then, in 

State v. Pokorney, 149 Idaho 459, 235 P.3d 409 (Ct. App. 2010), this Court relied upon Johnson

in concluding that the trial court abused its discretion by admitting evidence of prior sexual 

misconduct. We stated:

The Supreme Court, in Johnson, determined that the prior bad act evidence was 

irrelevant and did not, therefore, engage in a Rule 403 analysis. However, the 

Johnson Court did conduct a harmless error analysis and the Court’s discussion of 

prejudice is instructive. In Johnson, the evidence of his crime was limited to the 

testimony from his daughter. There was no physical evidence and the case hinged 

on the daughter’s testimony. Thus, the testimony from Johnson’s sister and father 

that he committed prior bad acts against his sister had an especially high risk of 

infecting the trial. Even though the trial court gave a limiting instruction for the 

sister’s and father’s testimonies, the Court found the error was not harmless. The 

Court stated: “Evidence of prior sexual misconduct with young children is so 

prejudicial that there is a reasonable possibility this error contributed to Johnson’s 

conviction.” Admitting 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. The danger is too great in this sex-abuse case 

that the jury may have believed the prior misconduct demonstrated Mr. Johnson’s 

deviant character traits.

Pokorney, 149 Idaho at 465-66, 235 P.3d at 415-16. 
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Here, similar to Johnson, there was no physical evidence corroborating either victim’s 

testimony. Had each victim’s claims been tried separately, the outcome of each case would have 

hinged entirely on the jury finding that particular victim’s testimony credible. Just as the 

Johnson Court acknowledged, additional testimony from another sexually abused child would 

have carried an especially high risk of infecting the trial by artificially enhancing the victim’s 

credibility. See Orellana-Castro, 158 Idaho at 763, 351 P.3d at 1221 (“The existence of two 

accusers would enhance their credibility.”). Despite the probative value of the evidence of an 

additional victim to demonstrate opportunity, the overwhelming effect of the evidence would 

have emphasized Sanchez’s propensity to commit sex crimes. Therefore, we conclude that the 

prejudicial nature of the evidence substantially outweighed its probative value. The evidence 

would not have been otherwise admissible pursuant to I.R.E. 404(b) to prove opportunity.

Finally, the State contends that the jury would have reached the same result absent the 

error because of the instructions given to the jury. The State draws attention to the fact that the 

jury was instructed (1) on the presumption of innocence; (2) on the standard of proof beyond a 

reasonable doubt; (3) to follow the instructions as given; and (4) to decide each count separately 

on the evidence and law that applies to it, uninfluenced by the decision on any other count. Even 

assuming that the jury followed the instructions as given, these instructions do not eliminate the 

prejudice caused by the improper joinder. See Orellana-Castro, 158 Idaho at 762, 351 P.3d at 

1220 (holding that instructing the jury to consider each count separately was insufficient to 

alleviate prejudice from improper joinder). Thus, we are not persuaded that the instructions 

given to the jury rendered the prejudice caused by the improper joinder harmless. The State has 

failed to meet its burden of showing that the error of improper joinder was harmless beyond a 

reasonable doubt.

In sum, the district court erred in granting the State’s motion to join the charges of sexual 

abuse against the two victims because the facts were insufficient to demonstrate a common 

scheme or plan. Moreover, the State did not meet its burden of showing that the jury would have 

reached the same result absent the error. Because the improper joinder of the charges was not 
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harmless, Sanchez must be granted a new trial. We need not address his arguments regarding the 

purported prosecutorial misconduct or cumulative error.

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III.

CONCLUSION

The district court erred in granting the State’s motion to join the charges of the two 

separate victims. This error was not harmless. Accordingly, we vacate the judgment of 

conviction and remand for further proceedings in the district court.

Judge MELANSON and Judge HUSKEY CONCUR. 

 2 We note that, generally, the State may not comment on a defendant’s invocation of his or 

her right to silence. See Griffin v. California, 380 U.S. 609, 613-14 (1965); State v. Ellington, 

151 Idaho 53, 60, 253 P.3d 727, 734 (2011).