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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 33721

STATE OF IDAHO,

Plaintiff-Respondent,

v.

JAMES ZANE PARMER,

Defendant-Appellant.

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2009 Opinion No. 15

Filed: March 11, 2009

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Joel D. Horton, District Judge. 

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

affirmed. 

Jones & Swartz, PLLC, Boise, for appellant. Darwin Overson argued.

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

Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

______________________________________________

PERRY, Judge

James Zane Parmer appeals from his judgment of conviction for lewd conduct with a 

minor child under sixteen. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

Parmer provided massage services to K.R., a fourteen-year-old female, to treat her for 

migraine headaches and leg pain. K.R. reported that, at one session, Parmer was using a 

vibrating device to relieve tension in the muscles of her inner thigh when he placed the device in 

a position to cause her sexual arousal. Additionally, she reported that Parmer had also engaged 

in manual-genital contact. Parmer was arrested and charged with lewd conduct with a minor 

child under sixteen. I.C. § 18-1508.

The state filed a notice of intent, pursuant to I.R.E. 404(b), to use evidence in the form of 

testimony from eight witnesses regarding similar inappropriate sexual touching during massages 
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provided by Parmer. The state then filed a motion in limine for the district court to rule on the 

admissibility of the witnesses’ testimony under I.R.E. 403 and 404(b). After a hearing, the 

district court held that the testimony of seven of the eight witnesses would be admissible for the 

purposes of showing a common scheme or plan, intent, or absence of mistake or accident and 

that any prejudicial effect of such testimony could be cured by a limiting jury instruction. Six of 

the witnesses testified at Parmer’s trial. Counsel for Parmer also attempted to elicit testimony 

from a police officer regarding statements that Parmer made during an interrogation, and the 

district court sustained the state’s hearsay objection. The trial resulted in a hung jury. 

In preparation for Parmer’s retrial, the state then filed another notice of intent to use Rule 

404(b) evidence in the form of testimony from two additional witnesses regarding inappropriate 

sexual contact by Parmer with them in the course of a massage. A second motion in limine was 

filed and after a hearing, the district court ruled that the testimony would be admissible on the 

same grounds as the six witnesses who testified at the first trial. Additionally, the district court 

held that counsel for Parmer could not make any reference to nor publish the recording of 

statements made by Parmer during a police interrogation because the statements were hearsay. 

The district court had previously sustained the state’s hearsay objection to these statements in the 

first trial. 

At the retrial, testimony was presented from the eight witnesses. The jury found Parmer 

guilty, and the district court sentenced him to a unified term of twenty years, with a minimum 

period of confinement of seven years. Parmer appeals, challenging the district court’s orders 

granting the state’s motions in limine as to the Rule 404(b) witnesses and prohibiting Parmer’s 

counsel from presenting any evidence of Parmer’s statements during the police interrogation.

II.

ANALYSIS

A. Rule 404(b) Evidence

Parmer raises several issues concerning the admission of testimony regarding his prior 

bad acts. First, Parmer alleges that the district court abused its discretion by determining that the 

Rule 404(b) witnesses could testify based only on the state’s offer of proof to the court 

concerning the subject matter of the proposed witnesses’ testimony. Second, Parmer alleges that 

the Rule 404(b) evidence was irrelevant. Third, he alleges that the prejudicial effect of the 

testimony of eight prior bad acts witnesses substantially outweighed any probative value of the 
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evidence. Fourth, he alleges that the district court abused its discretion by refusing trial 

counsel’s request for additional time to prepare for the two Rule 404(b) witnesses added prior to 

the retrial. Lastly, he alleges that the district court abused its discretion by allowing one of the 

two additional Rule 404(b) witnesses to testify at the retrial after that witness had attended 

portions of the first trial.

Evidence of other crimes, wrongs, or acts is not admissible to prove a defendant’s 

criminal propensity. I.R.E. 404(b); State v. Needs, 99 Idaho 883, 892, 591 P.2d 130, 139 (1979); 

State v. Winkler, 112 Idaho 917, 919, 736 P.2d 1371, 1373 (Ct. App. 1987). However, such 

evidence may be admissible for a purpose other than that prohibited by I.R.E. 404(b). State v. 

Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct. App. 2002). In determining the admissibility 

of evidence of prior bad acts, the Supreme Court has utilized a two-tiered analysis. The first tier 

involves a two-part inquiry: (1) whether there is sufficient evidence to establish the prior bad 

acts as fact; and (2) whether the prior bad acts are relevant to a material disputed issue 

concerning the crime charged, other than propensity. State v. Grist, ___ Idaho ___, ___, ___ 

P.3d ___, ___ (2009), reh’g pending. We will treat the trial court’s factual determination that a 

prior bad act has been established by sufficient evidence as we do all factual findings by a trial 

court. We defer to a trial court’s factual findings if supported by substantial and competent 

evidence in the record. State v. Porter, 130 Idaho 772, 789, 948 P.2d 127, 144 (1997). Whether 

evidence is relevant is an issue of law. State v. Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 

(Ct. App. 1993). Therefore, when considering admission of evidence of prior bad acts, we 

exercise free review of the trial court’s relevancy determination. Id. The second tier in the 

analysis is the determination of whether the probative value of the evidence is substantially 

outweighed by unfair prejudice. Id. 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).
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1. State’s offer of proof

Parmer alleges that the district court abused its discretion by determining that the Rule 

404(b) witnesses could testify based only on the state’s offer of proof to the court concerning the 

content of the proposed witnesses’ testimony. He argues that there must be a factual predicate 

established on the record before a ruling on admissibility is made. Furthermore, he argues that,

even if the district court correctly relied on the state’s offer of proof, the district court erred by 

failing to strike portions of witness testimony which varied from the alleged testimony purported 

in the offer of proof. The state responds that this issue was not preserved for appeal by timely 

objection, it is unsupported by legal authority, or that it is an incorrect statement of the law 

because the very purpose of the offer of proof is to enable the district court to rule on the 

admissibility of proffered evidence.

Recently, the Supreme Court in Grist, reviewed a district court’s admission of Rule 

404(b) evidence in a trial for lewd conduct with a minor under sixteen. In that case, the district 

court found:

“I think the evidence submitted to me by way of the offer of proof from 

the state is relevant to a material disputed issue in this matter, that is, defendant’s 

alleged conduct, and though certainly prejudicial to the defense, I believe that the 

probative value would substantially outweigh the danger of unfair prejudice.”

Grist, ___ Idaho at ___, ___ P.3d at ___. The Supreme Court held that the district court did not 

make a proper determination as to whether there was sufficient evidence to establish the prior 

bad acts as fact but did not specifically identify a proper method for establishing prior bad acts as 

fact. The quoted language from the district court in that case referred to a reliance on an offer of 

proof concerning the proffered testimony. However, the Supreme Court did not condemn the 

reliance on an offer of proof in the initial presentation of the testimony to be elicited at trial for 

purposes of a Rule 404(b) determination. In that case, the district court failed to make such a 

finding at all and, instead, ruled only on the relevance and the balancing of the prejudicial effect 

and probative value.

Reliance on an oral or written offer of proof in determining the admissibility of Rule 

404(b) evidence is one way that a district court can make the requisite initial finding that a prior 

bad act is established as fact. A trial court may also rely on affidavits, stipulations by the parties, 

live testimony, or may hold more extensive evidentiary hearings for each witness in advance of 
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trial. In any event, the Supreme Court has held that these considerations of admissibility must be 

made on a case-by-case basis by the trial court. Id. at ___, ___ P.3d at ___. The Supreme Court 

has not articulated what standard of proof is required for the trial court to factually establish the 

prior bad acts. However, the Court did hold that such evidence would only be relevant if the jury 

could reasonably conclude that the act occurred and that the defendant was the actor. Id. at ___, 

___ P.3d at ___. It would be illogical to place a higher burden on the trial court’s preliminary 

analysis of the admissibility of the proffered evidence under Rule 404(b). Therefore, in 

considering the admissibility of evidence under Rule 404(b), a trial court must determine that 

there is sufficient evidence to support a reasonable conclusion that the act occurred and that the 

defendant was the actor. The holding of Grist also disfavors an implied acceptance that 

sufficient evidence exists to establish a prior bad act as fact by mere virtue of the trial court’s 

determination of the probative value of the evidence. Rather, a trial court must articulate a 

separate finding that sufficient evidence exists to support a reasonable conclusion that the act 

occurred. 

In this case, the state filed a notice of intent to use Rule 404(b) evidence before each trial 

in which it identified the potential witnesses and to what each would testify. The district court 

then held a hearing at which time counsel for both parties had an opportunity to argue the content 

of the witnesses’ testimony, the relevance, and the prejudicial effect. Based on the information 

contained in the state’s notice of intent as well as the argument heard at both hearings, the district 

court ruled on the admissibility of the evidence. The district court was acting without the benefit 

of the Grist opinion which, as we have noted above, requires a trial court to articulate a separate 

factual finding that sufficient evidence exists to support a reasonable conclusion that the act 

occurred. Nevertheless, we conclude that the district court made the required findings in this 

case. Following argument at the hearing on the state’s motion in limine prior to the first trial, the

district court, after excluding the testimony of one witness that did not pass Rule 404(b) muster, 

found:

As to the remainder of the testimony -- that is, the testimony of [the seven 

remaining witnesses] -- I am satisfied that, based upon the State’s offer that 

there’s more than adequate showing that, under the guise of whether it was 

characterized as a massage or physical therapy, that the defendant is engaging in 

otherwise legitimate contact with the apparent purpose of engaging in 

inappropriate sexual contact.
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I am satisfied, based upon the showing, that the testimony of those 

individuals is admissible under [404] for purposes of showing a common scheme 

or plan, or absence of mistake, or absence of accident. And significantly, I find 

that it would be relevant as to the requisite intent to gratify the sexual desires of 

either the purported victim or of the accused.

My requirement then is to step to the 403 analysis. The danger of the 403 

concern that I have is the propensity concern, of course, the very real concern is 

that a jury might hear such evidence and take the inappropriate logical step of: 

Well, if he did it before, then he did it in this instance.

However, I am satisfied that those concerns about inappropriate use of the 

evidence for propensity purposes can be addressed by a limiting instruction 

instructing the jury that the testimony of [the seven witnesses] is only admissible 

for the limited purposes of showing a common scheme or plan, absence of 

mistake or accident, or the requisite intent.

First, the district court made the required finding that there was an adequate showing that 

Parmer had committed the prior bad acts of engaging in inappropriate sexual contact under the 

guise of legitimate massage techniques. Second, the district court articulated the purpose, other 

than propensity, for admission of the evidence--to show common scheme or plan, absence of 

mistake or accident, and intent. Thus, the district court satisfied the two steps of the first tier in 

the Rule 404(b) admissibility analysis. Next, the district court satisfied the second tier of the 

analysis by finding that the probative value was not substantially outweighed by the danger of 

unfair prejudice because any prejudicial effect could be cured by a limiting instruction.

At the hearing on the state’s motion in limine prior to the second trial, the district court 

also made the requisite findings relative to the two additional Rule 404(b) witnesses.

As to the offer of [the two additional witnesses’] testimony, I am satisfied 

that this evidence is probative. There is a danger of unfair prejudice, but I think 

that unlike a sexual relationship with a minor child, that this testimony is capable 

of being addressed by means of the limiting instruction of the form that was given 

to the jury as it related to the six 404(B) witnesses in the first case.

As to the probative value, I am satisfied that allegations by these 

individuals, if believed by a trier of fact that the defendant engaged in 

inappropriate sexual contact in the context of physical therapy, is relevant to those 

issues that I previously admitted. . . . in terms of demonstrating motive, 

opportunity, intent or absence of mistake or accident. 

Again, the district court was acting without the benefit of the Supreme Court’s recent holding in 

Grist which disfavors the implied acceptance that sufficient evidence exists to establish a prior 

bad act as fact by mere virtue of the trial court’s determination of the probative value of the 
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evidence. However, while the quoted language may appear to make the disfavored implication, 

we conclude that the district court adequately made the requisite factual findings in this case, 

unlike the district court in Grist.

First, the district court satisfied the first tier of the analysis in finding that the testimony, 

if believed by the jury, demonstrated that Parmer engaged in inappropriate sexual contact. The 

district court then referenced the proper purposes, other than propensity, to be served by the 

admission of the Rule 404(b) evidence--namely, motive, opportunity, intent, or absence of 

mistake or accident. Second, the district court again satisfied the second tier of the analysis by 

weighing the probative value versus the danger of unfair prejudice and determining that any 

danger of unfair prejudice could be mitigated by a limiting instruction. 

Parmer contends, in effect, that the district court should have held a mini-trial for each 

witness to determine whether Parmer was, in fact, guilty of such offense based on a prescribed 

standard of proof. This option was available to the district court if it was not satisfied through 

other methods that sufficient evidence existed to establish the prior bad acts as fact. However, 

the district court was satisfied by the state’s offer of proof and the argument presented at the 

hearings on the state’s motions in limine that such evidence existed to support a reasonable 

conclusion that the acts occurred. To require the district court to conduct further intensive 

inquiry when the evidence presented had already sufficiently met the court’s satisfaction would 

be an unnecessary waste of judicial time and resources. The required factual predicate can be 

adequately met initially by representations of counsel in the offer of proof. Thereafter, if the 

actual testimony of the witness fails to comport with the standards of the Rules of Evidence and 

with the content upon which the district court made its admissibility determination, the district 

court may instruct the jury to disregard all or any part of the witness’ testimony.

Parmer points to several variances between the actual testimony of some of the Rule 

404(b) witnesses and the content of their testimony alleged in the state’s notice of intent. 

However, no contemporaneous objection was raised by trial counsel at the time that any 

deviations became apparent in the testimony. This Court will not address an issue not preserved 

for appeal by an objection in the trial court. State v. Rozajewski, 130 Idaho 644, 645, 945 P.2d 

1390, 1391 (Ct. App. 1997). However, we may consider fundamental error in a criminal case, 

even though no objection was made at trial. Id. Fundamental error has been defined as error 

which goes to the foundation or basis of a defendant’s rights, goes to the foundation of the case 
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or takes from the defendant a right which was essential to his or her defense and which no court 

could or ought to permit to be waived. State v. Babb, 125 Idaho 934, 940, 877 P.2d 905, 911 

(1994).

This Court has held, regarding an allegation of prosecutorial misconduct, that an error 

only rises to the level of fundamental error if it is “so egregious or inflammatory that any ensuing 

prejudice could not have been remedied by a curative jury instruction.” State v. Timmons, 145 

Idaho 279, 287, 178 P.3d 644, 652 (Ct. App. 2007). In this case, had trial counsel objected to the 

testimonial variances and a curative instruction been given by the district court, any alleged 

prejudice could have been averted. Parmer argues that the district court, in its gatekeeper 

function, should have struck any testimony that varied from the offer of proof when such 

variances became apparent. However, the United States Supreme Court has held, regarding 

evidence which is preliminarily admitted conditional to the proving of a fact at trial:

Often the trial court may decide to allow the proponent to introduce 

evidence concerning a similar act, and at a later point in the trial assess whether 

sufficient evidence has been offered to permit the jury to make the requisite 

finding. If the proponent has failed to meet this minimal standard of proof, the 

trial court must instruct the jury to disregard the evidence.

Huddleston v. United States, 485 U.S. 681, 690 (1988) (footnote omitted). The Court then 

clarified that it is “not the responsibility of the judge sua sponte to insure that the foundation 

evidence is offered; the objector must move to strike the evidence if at the close of the trial the 

offeror has failed to satisfy the condition.” Id. at n.7, quoting 21 C. WRIGHT & K. GRAHAM,

FEDERAL PRACTICE AND PROCEDURE § 5054 (1977). Thus, it was not the district court’s burden 

to sua sponte strike the testimony when any variances became apparent. Rather, the trial court 

must strike the testimony in response to objections raised by opposing counsel that such 

testimony varied from the offer of proof upon which the district court previously relied in its 

Rule 404(b) admissibility determination.

Therefore, the district court did not abuse its discretion by determining that the Rule 

404(b) witnesses could testify based only on the state’s offer of proof to the court concerning the 

content of the proposed witnesses’ testimony. Furthermore, we conclude that the district court 

was not required to sua sponte strike portions of testimony that varied from the state’s offer of 

proof and that any error caused by the variances in testimony was not properly preserved for 

appeal and does not rise to the level of fundamental error.
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2. Relevance of Rule 404(b) evidence

Parmer argues that the district court erred by determining that the Rule 404(b) evidence 

was relevant for the purpose of showing a common scheme or plan, intent, and absence of 

mistake or accident. He contends that the prior bad acts were too dissimilar to the present 

offense to be admissible for that purpose. Specifically, Parmer contends that all but one of the 

witnesses was allegedly victimized as an adult and the method of each alleged assault varied 

from case to case, including some consensual encounters. Additionally, Parmer argues that 

absence of mistake or accident was not at issue until after he testified and therefore, it was error 

to allow the state to present this evidence in its case-in-chief.

The state responds that the evidence was relevant to show a common scheme that, during 

the course of therapeutic massages, Parmer would sexually assault female victims. Therefore, 

this evidence made it more probable that Parmer possessed the required sexual intent when he 

allegedly inappropriately touched K.R. and the touching was not a result of accident or mistake. 

The state further argues that age differences and variances in the manner by which Parmer 

inappropriately touched his victims do not make the evidence irrelevant. As to any consensual 

encounters, the state responds that they were initiated by Parmer during the course of a 

therapeutic massage and, therefore, are still relevant to show that he possessed the requisite state 

of mind when he committed the alleged acts in this case.

As stated above, we exercise free review over a district court’s relevancy determination. 

Atkinson, 124 Idaho at 819, 864 P.2d at 657. The Idaho Supreme Court has held that age 

differences between adult and child victims at the time of a sexual battery does not render the 

evidence of prior bad acts irrelevant. State v. Cardell, 132 Idaho 217, 220, 970 P.2d 10, 13 

(1998). The facts of Cardell are nearly indistinguishable from this case. Cardell was a masseuse 

who was accused of committing a sexual battery on a sixteen-year-old client. The district court 

in that case allowed testimony from other former clients of Cardell who testified to similar 

inappropriate touching during massages given to them. On appeal, Cardell argued that the prior 

bad acts witnesses were all adults at the time that he allegedly committed a battery upon them 

and, therefore, their testimony was irrelevant in a prosecution for sexual battery of a minor. The 

Supreme Court held:

The testimony of the adult massage clients was relevant to whether 

Cardell’s touching of R.S.’s vaginal area was accidental. These women were 

asked at trial whether they believed that the touching of their vaginal areas by 
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Cardell was accidental. The adult clients testified that they did not believe the 

touching was accidental during their massages. This testimony was relevant 

under I.R.E. 404(b) because it tends to show that any touching of R.S.’s vaginal 

area by Cardell during massage therapy was not a mistake or accident, since other 

clients testified to similar touching.

Cardell argues that the testimony does not fit within the exceptions in 

I.R.E. 404(b) because the testimony was not from women in the same age 

category as R.S. Although these women were older than R.S., their testimony 

was of events during a massage given by Cardell which was similar to the 

testimony of R.S. The age difference between the victim R.S. and the adult 

massage clients does not render the adults’ testimony regarding absence of 

mistake or accident irrelevant.

 

Id. Therefore, the testimony of prior bad acts witnesses in a trial for lewd conduct with a minor 

under sixteen years of age is not rendered irrelevant for the purpose of showing absence of 

mistake or accident by the fact they were allegedly assaulted by Parmer as adults.

Parmer additionally argues that the variances in the manner by which the Rule 404(b) 

witnesses were assaulted render their testimony irrelevant in the present case. In the context of 

showing a common plan or scheme, the Supreme Court in Grist cautioned that trial courts must 

carefully examine evidence to determine whether the charged conduct and the prior bad acts are 

so related to each other that proof of one tends to establish the other, knowledge, identity, or

absence of mistake or accident. Grist, ___ Idaho at ___, ___ P.3d at ___. Such careful 

examination for the requisite factual similarities is not just limited to cases where Rule 404(b) 

evidence is offered to show a common scheme or plan, but must be conducted when evidence is 

offered for any purpose under Rule 404(b). This ensures that the evidence actually serves the 

purpose for which it is offered.

During the hearing on the state’s motion in limine prior to the first trial,1the district court 

found the testimony to be relevant:

I am satisfied that, based on the State’s offer that there’s more than adequate 

showing that, under the guise of whether it was characterized as a massage or 

physical therapy, that the defendant is engaging in otherwise legitimate contact 

with the apparent purpose of engaging in inappropriate sexual contact.

 

 

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The district court employed similar reasoning in its analysis of the admissibility of the 

two additional Rule 404(b) witnesses who were allowed to testify at the retrial.
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The manner of offensive touching among the Rule 404(b) witnesses varied from kissing, digitalgenital and oral-genital contact, other touching of the breast and genital areas, as well as Parmer 

stimulating himself by rubbing or pressing his groin against a victim’s body. Parmer’s argument 

that the evidence of alleged inappropriate touching in this case is irrelevant because it was not 

accomplished through exactly the same manner is unpersuasive. It makes no difference that 

K.R. alleged in this case that Parmer used a massage tool to sexually arouse her and that he 

digitally penetrated her. Even if, as Parmer contends, the prior bad acts are too factually or 

temporally remote to show a common plan or scheme to victimize massage clients, the prior 

misconduct can still be indicative of an absence of accident or mistake or of Parmer’s intent to 

sexually gratify himself or others through inappropriate sexual touching under the guise of 

proper massage techniques. The evidence was relevant, as found by the district court, to show 

that Parmer’s contact with K.R. was not by accident or mistake and that he had the requisite 

intent to sexually gratify either K.R. or himself.

Parmer attempts to distinguish Cardell from this case. Parmer argues that, in Cardell, the 

testimony of prior bad acts was only allowed in rebuttal after the defendant had testified and 

placed accident, mistake or lack of intent at issue, not in the state’s case-in-chief. Idaho Code 

Section 18-1508 defines lewd conduct with a minor under sixteen:

Any person who shall commit any lewd or lascivious act or acts upon or 

with the body or any part or member thereof of a minor child under the age of 

sixteen (16) years, including but not limited to, genital-genital contact, oralgenital contact, anal-genital contact, oral-anal contact, manual-anal contact, or 

manual-genital contact, . . . when any of such acts are done with the intent of 

arousing, appealing to, or gratifying the lust or passions or sexual desires of such 

person, such minor child, or third party, shall be guilty of a felony . . . .

The section establishes a specific intent crime requiring the prosecution to prove that Parmer 

acted with the intent of arousing or gratifying sexual desires within K.R. or himself. Therefore, 

it was necessary for the state to introduce evidence in its case-in-chief proving that Parmer acted 

with the requisite sexual intent. 

This Court has previously held that intent is not always sufficiently at issue in a specific 

intent crime so as to justify the admission of prior bad acts evidence. State v. Roach, 109 Idaho 

973, 974-75, 712 P.2d 674, 675-76 (Ct. App. 1985) (“Further, if we were to conclude that intent 

is always at issue in a trial for a charged specific intent crime, then other crime evidence would 
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always be admissible, subject, of course, to the balancing process. We do not believe the intent 

exception goes that far.”). In Roach, this Court held that intent was not sufficiently at issue 

because the defendant contended that he did not commit the act in question. The defendant did 

not contend that he committed the act with innocent intent. In this case, however, Parmer’s 

intent to gratify either the sexual desires of K.R. or himself was squarely at issue. As 

summarized by trial counsel during closing argument at Parmer’s retrial:

Our main contention . . . is that he didn’t do this to sexually gratify 

himself. He didn’t do this to sexually gratify [K.R.]. Did he make a mistake? 

Did he make a mistake by using that vibrator? . . . It’s stupid. . . .

I am sorry. Any time that you are going to get a vibrator and put it near 

this area, you are going to get results of stimulation going into the groin. It is 

going to happen.

Did he intend the results of that? Did he intend to gratify her? No. Did 

he intend to sexually gratify himself? No. That is what the case is all about. 

That’s it. . . . The instruction you get as far as if you find that and you find that he 

did do it with the intent to sexually gratify himself or her, yeah, you gotta find 

him guilty.

Therefore, Roach can be distinguished from this case. The Rule 404(b) evidence was relevant to 

show absence of mistake or accident or Parmer’s intent, which was squarely at issue in this case. 

Accordingly, the evidence was properly admitted, and the district court did not err in allowing it 

to be presented in the state’s case-in-chief.

As to Parmer’s arguments regarding the consensual nature of some of the contact testified 

to by two of the Rule 404(b) witnesses, this issue has not been properly preserved for appeal. 

Parmer argues that two of the witnesses testified to consensual encounters. One of the witnesses 

was a subject of the state’s second motion in limine prior to the retrial. At the hearing on the 

motion, trial counsel made no objection, nor any mention, of the witness’ testimony being 

inadmissible because it related to consensual activity. During the witness’ testimony during the 

retrial, no objection was made when testimony was elicited regarding these encounters. This 

Court will not address an issue not preserved for appeal by an objection in the trial court. 

Rozajewski, 130 Idaho at 645, 945 P.2d at 1391. 

The second witness who Parmer argues testified to consensual encounters was a subject 

of the state’s first motion in limine prior to the first trial. At the hearing on the motion, trial 

counsel made the following blanket statement regarding consensual activities:
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And then I encourage the Court to look at the adult women. I don’t know 

how some of these incidents with adult women could be anything other than 

consensual behavior. I am not saying all of them are that way, but they are 

claiming, one of them is claiming that he crawled up on the therapy table, was 

kissing them, was fondling them. One claims that he sucked her toes; another 

claims that they French-kissed.

I don’t know how this could be other than consensual behavior, and it is 

clearly--I mean, if they are claiming somehow it wasn’t consensual, I’m not sure 

how they can make that claim. But if they do, I think the 404 weighing process 

certainly comes into play.

Trial counsel made no other statement specifically objecting to what encounters were 

consensual. The witness of whom Parmer now complains is not even mentioned. When a trial 

court unqualifiedly rules on the admissibility or inadmissibility of evidence prior to trial, no 

further objection at trial is required in order to preserve the issue for appeal. State v. Baer, 132

Idaho 416, 418, 973 P.2d 768, 770 (Ct. App. 1999). However, in Baer, this Court held that a 

defendant’s motion in limine does not preserve an objection for appeal regarding anything 

related to the subject matter of his motion. In this case, the state filed the motion in limine, but 

the analysis of Baer is still applicable. Parmer’s broad, generalized argument at the hearing on 

the motion in limine did not preserve for appeal his specific objections to the alleged consensual 

encounters testified to by an identified witness. To properly preserve the issue, trial counsel had 

to raise the objection at trial. Not only was no objection made, but trial counsel often himself 

inquired as to the consensual encounters during cross-examination. Therefore, the issue was not 

properly preserved for appeal. This Court will not address an issue not preserved for appeal by 

an objection in the trial court. Rozajewski, 130 Idaho at 645, 945 P.2d at 1391.

We may consider fundamental error in a criminal case, even though no objection was 

made at trial. Id. However, we conclude that this allegation of error does not rise to the level of 

fundamental error.

3. Prejudice of Rule 404(b) evidence under I.R.E. 403

Parmer argues that the district court abused its discretion by ruling that the probative 

value of the Rule 404(b) evidence was not substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or waste of time. Specifically, Parmer contends that the 

admission of testimony from eight Rule 404(b) witnesses as compared to only six other 

witnesses in the state’s case-in-chief was unduly cumulative and confused the issue for which he 
14

was on trial. The state responds that the district court properly acted within its discretion when it 

acknowledged the potential danger of prejudice and held that any prejudice could be minimized 

by a limiting instruction to the jury. A lower court’s determination under I.R.E. 403 will not be 

disturbed on appeal unless it is shown to be an abuse of discretion. State v. Enno, 119 Idaho 392, 

406, 807 P.2d 610, 624 (1991); State v. Clark, 115 Idaho 1056, 1059, 772 P.2d 263, 266 (Ct. 

App. 1989). 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. Hedger, 

115 Idaho at 600, 768 P.2d at 1333.

The question of the number of witnesses testifying to prior bad acts is a matter of concern 

under Rule 403 analysis. Since the testimony is inherently prejudicial, at some point the number 

of such witnesses can become excessive and overwhelm the probative value of the evidence. 

This determination is left to the discretion of the trial court. The number of witnesses 

appropriate to establish a common scheme or plan, absence of accident or mistake, or intent will 

vary with each case. Thus, the issue cannot be resolved by drawing an arbitrary line. The 

Supreme Court in Grist held that trial courts must make such admissibility determinations on a 

case-by-case basis while remaining cognizant of the potential cumulative effect of the evidence 

and its tendency toward proving propensity and bad character. Grist, ___ Idaho at ___, ___ P.3d 

at ___. The Court warned against the admission of propensity evidence merely under the 

auspices of an acceptable purpose under Rule 404(b). Id. at ___, ___ P.3d at ___. The Supreme 

Court held that the ultimate risk of such evidence was: “If he did it before, he probably did it 

this time as well.” Id. at ___, ___ P.3d at ___. Therefore, when reviewing the district court’s 

discretionary determination we will consider whether the court properly weighed these 

considerations in its Rule 403 analysis.

At the hearing on the motion in limine prior to Parmer’s first trial, the district court held:

The danger of the 403 concern that I have is the propensity concern, of course, the 

very real concern is that a jury might hear such evidence and take the 

inappropriate logical step of: Well, if he did it before, then he did it in this 

instance.

However, I am satisfied that those concerns about inappropriate use of the 

evidence for propensity purposes can be addressed by a limiting instruction 
15

instructing the jury that the testimony of [the Rule 404(b) witnesses] is only 

admissible for the limited purpose of showing a common scheme or plan, absence 

of mistake or accident, or the requisite intent.

The district court followed a similar analysis for the two additional Rule 404(b) witnesses who 

testified at the retrial. The district court’s findings demonstrate its conscious regard that such 

evidence inherently runs the risk of becoming improper propensity evidence. The district court’s 

language even refers to the same flawed logic of which the Supreme Court expressed concern in 

Grist. The district court was aware of the concern regarding the admission of propensity 

evidence under a different name. The district court also treated the Rule 404(b) evidence no 

differently than with any other crime--the kind of disparate treatment which was condemned by 

the Supreme Court in Grist. In addition, the district court found that a limiting instruction would

help to ensure that the jury considered the Rule 404(b) evidence only for its proper purposes. 

Prior to the testimony of the first Rule 404(b) witness, the district court instructed the jury:

Ladies and gentlemen, during the course of this trial evidence will be 

introduced for purpose of showing that the defendant committed acts other than 

that for which the defendant 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.

Rather, such evidence may be considered by you only for the limited 

purposes of proving the defendant’s motive, opportunity, intent, plan, or absence 

of mistake or accident.

The district court reiterated this instruction again at the conclusion of the trial. We conclude that 

the district court made a reasonable determination within the applicable legal standards.

Parmer argues why he believes the probative value of the evidence is substantially 

outweighed by the danger of unfair prejudice. However, he fails to explain how the district 

court’s decision to remedy the danger through a curative instruction was inadequate. In his reply 

brief, Parmer asserts “a curative instruction to the jury can only go so far to avoid prejudicing the 

defendant when there are so many 404(b) witnesses.” No argument is made as to why the 

instruction fails other than the number of Rule 404(b) witnesses made it impossible for the jury 

to follow the court’s instruction. However, we presume that the jury followed the district court’s 

instructions. See State v. Kilby, 130 Idaho 747, 751, 947 P.2d 420, 424 (Ct. App. 1997); State v. 

Hudson, 129 Idaho 478, 481, 927 P.2d 451, 454 (Ct. App. 1996). Therefore, the district court 

did not abuse its discretion when it found that any prejudice could be cured by a limiting 
16

instruction to the jury and that the probative value of the evidence was not substantially 

outweighed by the danger of unfair prejudice.

4. Inadequate time to prepare for additional witnesses before retrial

Parmer alleges that the district court abused its discretion by refusing trial counsel’s 

request for additional time to prepare for the two 404(b) witnesses added prior to the retrial. 

Specifically, Parmer argues that “denial of the motion to vacate significantly prejudiced the 

defense’s ability to investigate and prepare to meet the testimony of [the additional witnesses] 

and amounted to an abuse of discretion.” That is the extent of Parmer’s argument and authority 

on this issue. The state filed the second notice of intent to use Rule 404(b) evidence on July 28, 

the hearing was held on August 2, and trial was set to begin on August 22. Other than the 

conclusory statement quoted above, no argument is made or authority presented supporting the

proposition that nearly a month of time was inadequate for defense counsel to prepare for the 

testimony of two additional witnesses. A party waives an issue on appeal if either authority or 

argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996). 

Accordingly, we do not further address this issue.

5. Testimony of witness at retrial after attending first trial

Parmer alleges that the district court abused its discretion by allowing one of the two 

additional Rule 404(b) witnesses to testify at the retrial after that witness had attended portions 

of the first trial. Specifically, Parmer contends that this was a violation of the district court’s 

exclusionary order entered before the first trial and prohibiting all prospective witnesses from 

being present in the courtroom or otherwise receiving any information pertaining to the 

testimony of other witnesses. Additionally, Parmer argues that this should have been a heavilyweighted factor in the district court’s balancing of unfair prejudice and probative effect under 

Rule 403.

The cases and authority cited in support of Parmer’s argument refer to situations where a 

district court’s sequestration or exclusionary order has actually been violated. However, the 

witness who is the source of Parmer’s allegation of error was not included as a potential witness 

in the first trial. Therefore, the witness was not subject to the district court’s exclusionary order 

and that order was not violated by the witness’ presence at that proceeding. Parmer cites no 

authority for the argument that a witness who rightfully attends trial proceedings, which later 

result in a hung jury, is prohibited from testifying at a retrial. Additionally, Parmer cites no 
17

authority for his contention that the district court was required to consider the possibility of 

tainted testimony in its Rule 403 analysis. Furthermore, Parmer cites no authority for the 

proposition that he is relieved of his burden of demonstrating how the presence of this witness at 

the first trial resulted in tainted testimony because he brought the matter to the district court’s 

attention prior to the retrial. A party waives an issue on appeal if either authority or argument is 

lacking. Zichko, 129 Idaho at 263, 923 P.2d at 970. Accordingly, we do not further address this 

issue.

B. Parmer’s Statements During Police Interrogation

Parmer next argues that the district court abused its discretion by sustaining the state’s 

hearsay objection to testimony concerning statements that he made during a police interrogation 

or the publishing of the recording to the jury. He alleges that the statements were necessary for 

the jury to understand other statements that he had made during a confrontation call with K.R. 

and to put them in context. Additionally, he argues that the confrontation call and the 

interrogation were close in time and similar in content. Therefore, he contends that, pursuant to 

I.R.E. 106, the statements made during the interrogation must be considered contemporaneously 

with the confrontation call recording which had been admitted into evidence.2 Furthermore, 

Parmer contends that the statements fall under the I.R.E. 801(d)(1)(B) exclusion from the 

hearsay rule.3

Parmer’s arguments concerning the applicability of Rules 106 and 801(d)(1)(B) are not 

properly preserved for appeal. At Parmer’s first trial, defense counsel attempted to elicit 

testimony from the interrogating officer regarding Parmer’s statements made during the 

 

2

Idaho Rule of Evidence 106 provides:

When a writing or recorded statement or part thereof is introduced by a 

party, an adverse party may require that party at that time to introduce any other 

part or any other writing or recorded statement which ought in fairness to be 

considered contemporaneously with it.

3

Idaho Rule of Evidence 801(d)(1) provides that a statement is not hearsay if:

The declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is . . . (B) consistent with 

declarant’s testimony and is offered to rebut an express or implied charge against 

declarant of recent fabrication or improper influence or motive . . . .
18

interrogation. After the state objected on hearsay grounds, trial counsel responded that the 

statements should be allowed because they were Parmer’s own statements or admissions. The 

district court sustained the hearsay objection because the Rules of Evidence provide that only 

admissions of a party-opponent are subject to the exception to the hearsay rule. After trial 

counsel attempted to elicit testimony regarding the interrogation by another method--a DVD 

recording of the interrogation--the state again objected on hearsay grounds and the district court 

held a bench conference outside of the presence of the jury. The district court sustained the 

state’s hearsay objection and later gave its reason for sustaining the objection on the record:

When counsel came forward, I asked for an explanation of a non-hearsay 

purpose, or an exception to the hearsay rule for which the evidence was 

attempting to be elicited as to the substance of the defendant’s interview, or as 

foundational for the defendant’s interview with law enforcement officers.

Counsel was not able to identify anything beyond that which was stated in 

terms of: It is a statement of the defendant. In a criminal trial, a defendant’s 

statement may be offered by the State under Rule [801](d)(2), but there is no 

corresponding right for a defendant to introduce his own statements. It was 

clearly offered for a hearsay purpose.

At the hearing on the state’s motion in limine prior to Parmer’s retrial, the district court likewise 

ruled that evidence of Parmer’s statements would not be admissible by the defense. Trial 

counsel for Parmer made no specific objection at that time. The only argument raised by trial 

counsel as to the admissibility of Parmer’s statements during the police interrogation concerned 

Rule 801(d)(2). The district court properly denied the admission of the statements on this basis. 

No other argument was made by trial counsel regarding Rules 106 or 801(d)(1). Therefore, any 

argument that the statements were admissible under those rules has not been properly preserved,

and we will not address it on appeal. See Rozajewski, 130 Idaho at 645, 945 P.2d at 1391. 

We may consider fundamental error in a criminal case, even though no objection was 

made at trial. Id. However, even were we to assume error, this does not rise to the level of 

fundamental error as Parmer testified at the trial and had an adequate opportunity to explain or 

put the confrontation call statements in proper context.

III.

CONCLUSION

The district court did not abuse its discretion by allowing Rule 404(b) witnesses to testify 

based only on the state’s offer of proof to the court concerning the content of the proposed 
19

witnesses’ testimony. Trial counsel failed to object to any variances between the Rule 404(b) 

witnesses’ actual testimony and the state’s offer of proof, and the district court was not required 

to sua sponte strike all or any part of the varying testimony. The testimonial variances do not 

rise to the level of fundamental error. The testimony of the Rule 404(b) witnesses was relevant 

and the district court did not abuse its discretion in finding that the probative value was not 

substantially outweighed by the prejudicial effect. Parmer presents inadequate argument and 

authority to support his argument of inadequate time to prepare for additional Rule 404(b) 

witnesses prior to his retrial. Likewise, Parmer presents inadequate argument or authority to 

support his argument that the district court abused its discretion by allowing a witness to testify 

at the retrial who had been present at the first trial, when that witness rightfully attended portions 

of the first trial. 

The district court also did not abuse its discretion by denying the admissibility of 

Parmer’s statements made during the police interrogation on hearsay grounds when trial counsel 

argued their admissibility as admissions of a party-opponent. Parmer’s contention that 

admission of the statements was justified under other Rules of Evidence is not properly 

preserved for appeal and does not rise to the level of fundamental error. Because we have found 

no errors that were properly preserved for appellate review, the harmless error and cumulative 

error doctrines do not apply. Therefore, Parmer’s judgment of conviction for lewd conduct with 

a minor child under sixteen is affirmed.

Judge GRATTON, CONCURS.

Judge GUTIERREZ, DISSENTS.