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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 39287

STATE OF IDAHO,

Plaintiff-Respondent,

v.

FRANKLIN WARD OSTERHOUDT,

Defendant-Appellant.

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2013 Opinion No. 61

Filed: November 14, 2013

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin 

Falls County. Hon. G. Richard Bevan, District Judge. 

Judgment of conviction for rape, incest, and lewd conduct, affirmed.

Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy 

Appellate Public Defender, Boise, for appellant. Jason Curtis Pintler argued.

Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy 

Attorney General, Boise, for respondent. Daphne J. Huang argued.

________________________________________________

PERRY, Judge Pro Tem

Franklin Ward Osterhoudt appeals from the judgment of conviction entered upon the jury 

verdict finding him guilty of rape, Idaho Code §§ 18-6101, 18-6104; incest, I.C. §§ 18-6602, 18-

112; and two counts of lewd conduct with a minor under sixteen, I.C. § 18-1508. Specifically, 

Osterhoudt challenges the district court’s order allowing the State to present evidence of his 

uncharged misconduct over his objection and challenges the district court’s ruling admitting 

recordings of his telephone conversations as substantive evidence. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Osterhoudt was arrested after his fifteen-year-old daughter, H.O., disclosed that he had 

been sexually abusing her. Osterhoudt was charged with five counts of lewd conduct with a 

minor under sixteen, one count of incest, and one count of rape. The case went to trial three 

times. The first trial resulted in a mistrial after the jury was unable to reach a unanimous 
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decision. Prior to the second trial, the State provided notice that it would seek to present 

evidence of prior bad acts committed by Osterhoudt pursuant to I.R.E. 404(b). Osterhoudt 

objected and an evidentiary hearing was held, wherein the State presented evidence 

demonstrating that when H.O. was five years old, she reported to authorities that Osterhoudt 

sexually abused her. The district court found that such evidence may become relevant if 

Osterhoudt presented evidence that H.O. recently fabricated the charged allegations. The district 

court also ruled that evidence that Osterhoudt had provided methamphetamine to H.O. when she 

was fourteen years old would be admissible for the purpose of showing that he “groomed” her 

for sex.

The second trial resulted in guilty verdicts on all seven counts against Osterhoudt. 

However, the district court granted a new trial after finding that the prosecutor committed 

misconduct during closing arguments. Prior to the third trial, the State again provided notice that 

it would seek to present evidence of prior bad acts, pursuant to I.R.E. 404(b), and the district 

court held that the previous court’s ruling, made prior to the second trial, would apply to the third 

trial. Osterhoudt also filed a motion in limine to exclude recordings of telephone conversations 

between himself and defense witnesses that occurred while he was incarcerated. The State 

alleged that the telephone conversations demonstrated an effort by Osterhoudt and defense 

witnesses to coordinate their testimonies. The district court ruled, based on late disclosure, that 

the recordings would not be admitted in the State’s case-in-chief. 

During the third trial, H.O. testified that Osterhoudt sexually abused her between the ages 

of eleven and fourteen. She further testified that Osterhoudt regularly provided her with 

methamphetamine. Defense witnesses testified that H.O. fabricated the allegations because she 

was angry her father was forbidding her to see her nineteen-year-old boyfriend. In rebuttal, the 

State presented testimony from H.O. that she had reported sexual abuse by Osterhoudt when she 

was five years old. 

Additionally, during cross-examination of defense witnesses, the witnesses implied that 

they had no discussions with each other or with the defendant regarding the coordination of their 

testimonies. Based on that testimony, the district court ruled that the recordings of the telephone 

conversations between Osterhoudt and defense witnesses had become relevant to show bias. 

Thereafter, over the objection of Osterhoudt, the State played the recordings to the jury. 
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The jury found Osterhoudt guilty of rape, incest, and two counts of lewd conduct with a 

minor under sixteen. The district court imposed a concurrent unified term of life with twentyfive years determinate for each count of lewd conduct and for the rape conviction. The court 

also imposed a concurrent determinate term of twenty-five years for the incest conviction. 

Osterhoudt appeals. 

II.

ANALYSIS

Osterhoudt claims: (1) the district court erred by allowing the State to present evidence 

that he provided methamphetamine to H.O.; (2) the district court erred by allowing the State to 

present testimony that H.O. reported that she was sexually abused when she was five years old;

(3) the district court erred by admitting into evidence the recordings of phone conversations 

between Osterhoudt and defense witnesses; and (4) the accumulation of errors deprived 

Osterhoudt of a fair trial. We discuss each issue in turn.

A. Providing Methamphetamine to H.O.

Osterhoudt asserts that evidence he provided methamphetamine to H.O. was improper 

character evidence of prior bad acts. The evidence rule in question, I.R.E. 404(b), provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show that the person acted in conformity 

therewith. It may, however, be admissible for other purposes, such as proof of 

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

mistake or accident, provided that the prosecution in a criminal case shall file and 

serve notice reasonably in advance of trial, or during trial if the court excuses 

pretrial notice on good cause shown, of the general nature of any such evidence it 

intends to introduce at trial.

This rule prohibits introduction of evidence of acts other than the crime for which a 

defendant is charged if its probative value is entirely dependent upon its tendency to demonstrate 

the defendant’s propensity to engage in such behavior. State v. Grist, 147 Idaho 49, 54, 205 P.3d 

1185, 1190 (2009); see also State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct. App. 

2002). Of course, evidence of a prior crime, wrong, or act may implicate a person’s character 

while also being relevant and admissible for some permissible purpose, such as those listed in the 

rule. See State v. Pepcorn, 152 Idaho 678, 688-89, 273 P.3d 1271, 1281-82 (2012). 

When determining the admissibility of evidence to which a Rule 404(b) objection has 

been made, the trial court must first determine whether there is sufficient evidence of the other 
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acts that a reasonable jury could find the conduct actually occurred. If so, then the court must 

consider: (1) whether the other acts are relevant to a materially-disputed issue concerning the 

crime charged, other than propensity; and (2) whether the probative value is substantially 

outweighed by the danger of unfair prejudice. Grist, 147 Idaho at 52, 205 P.3d at 1188; State v. 

Parmer, 147 Idaho 210, 214, 207 P.3d 186, 190 (Ct. App. 2009). On appeal, this Court defers to 

the trial court’s determination that there is sufficient evidence of the other acts if it is supported 

by substantial and competent evidence in the record. Parmer, 147 Idaho at 214, 207 P.3d at 190.

In this case, Osterhoudt does not challenge the sufficiency of the evidence to allow a finding that 

he provided methamphetamine to H.O. Therefore, we address only the relevancy and unfair 

prejudice issues. However, we exercise free review of the trial court’s relevancy determination.

State v. Sheldon, 145 Idaho 225, 229, 178 P.3d 28, 32 (2008). The trial court’s balancing of the 

probative value of the evidence against the danger of unfair prejudice will not be disturbed 

unless we find an abuse of discretion. State v. Norton, 151 Idaho 176, 190, 254 P.3d 77, 91 (Ct. 

App. 2011).

As discussed above, Osterhoudt objected to the use of I.R.E. 404(b) evidence. The 

district court held an evidentiary hearing wherein H.O. testified that Osterhoudt offered her 

methamphetamine on a regular basis from April 20, 2005, to November 30, 2006. She also 

testified that on two occasions, Osterhoudt used methamphetamine to bribe her to have sexual 

intercourse with him.1

 Additionally, she testified that she quit using methamphetamine in 

September of 2006, although Osterhoudt continued to offer her methamphetamine until she went 

into foster care on November 30, 2006. 

Based on this testimony, the district court found that there was sufficient evidence for a 

reasonable jury to believe that Osterhoudt offered H.O. methamphetamine in exchange for sexual 

intercourse. Further, the district court found that the evidence was relevant to Count I which 

charged that Osterhoudt committed lewd conduct between November 1, 2006, and November 30,

2006,2 because the evidence was “probative of a continuing criminal design by the defendant to 

cultivate a relationship with [H.O.] to induce her submission to his sexual demands.” The court 

 

1 The first bribe occurred in June and the second bribe occurred in July. However, it is 

unclear from the record whether these bribes occurred in 2005 or 2006.

2 Osterhoudt’s other charges stemmed from events that occurred prior to April 2005, the 

date he allegedly started offering H.O. methamphetamine.
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relied on the rationale of State v. Blackstead, 126 Idaho 14, 878 P.2d 188 (Ct. App. 1994) in 

reaching its conclusion. Additionally, the district court conducted an I.R.E. 403 balancing test 

and concluded that the probative value was not substantially outweighed by unfair prejudice.

On appeal, Osterhoudt claims evidence that he bribed H.O. with methamphetamine is not 

relevant to Count I because it alleges bribery prior to November 1, 2006. Therefore, he argues 

that the evidence is not tied to Count I but instead is only probative of his bad character. 

Osterhoudt also contends that the probative value, if any, is minimal and substantially 

outweighed by unfair prejudice. Additionally, Osterhoudt argues that the rationale in 

Blackstead, relied on by the district court, is questionable in light of the Idaho Supreme Court’s 

decision in Grist.

We first address Osterhoudt’s implication that the Blackstead analysis is no longer valid. 

In Blackstead, this Court determined evidence that the defendant provided the victim with drugs 

was relevant to a charge of lewd and lascivious conduct because it indicated an ongoing scheme 

to accomplish sexual contact with the victim. Blackstead, 126 Idaho at 19-20, 878 P.2d at 193-

94. In that case, Blackstead engaged in three episodes of criminal conduct. In the first episode, 

the victim went to Blackstead’s residence and Blackstead provided her with marijuana and 

“crank” and then engaged in sexual intercourse with her. Following the incident, Blackstead 

took the victim back to her house and gave her forty dollars and a bag of marijuana. Blackstead 

was charged with lewd conduct for this episode. The second episode occurred several days later 

when Blackstead went to the victim’s house, provided her with more marijuana and “crank,” 

asked her if she could “slip away,” but the victim declined and no sexual contact occurred. 

Blackstead was not charged with criminal conduct for the second episode. The third episode 

occurred weeks later when Blackstead had more sexual contact with the victim. Blackstead was 

charged with lewd conduct for the third episode involving sexual contact. This Court held that 

evidence of Blackstead providing drugs to the victim during the second episode was relevant to 

the charge of lewd conduct stemming from the third episode because it was probative of 

Blackstead’s “grooming” of the victim for sexual purposes. Id. at 20, 878 P.2d at 194.

Here, Osterhoudt implies that the Grist holding makes Blackstead obsolete. In Grist, the 

Idaho Supreme Court stated that “trial courts must carefully scrutinize evidence offered as 

‘corroboration’ or as demonstrating a ‘common scheme or plan’ in order to avoid the erroneous 

introduction of evidence that is merely probative of the defendant’s propensity to engage in 
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criminal behavior.” However, the Grist decision did not eliminate the ability to admit evidence 

of a common scheme or plan if the evidence serves its articulated purpose. Grist, 147 Idaho at 

55, 205 P.3d at 1191. 

More to the point, in State v. Truman, 150 Idaho 714, 720, 249 P.3d 1169, 1175 (Ct. App. 

2010), this Court upheld the rationale in Blackstead. In that case, this Court analyzed a similar 

issue regarding “grooming” and stated, “we find our decision in [Blackstead] to be instructive 

and to have continued applicability even in light of our Supreme Court’s Rule 404(b) 

clarifications in Grist and [State v. Johnson, 148 Idaho 664, 227 P.3d 918 (2010)].” Truman, 

150 Idaho at 720, 249 P.3d at 1175. In explaining how Blackstead survived Grist, we stated:

What the Grist Court found to be problematic was the “exception” that had 

essentially been carved out of Rule 404(b) for child sex abuse cases--thus 

allowing other acts evidence to be admitted if the barest of similarities were 

present. Blackstead, however, did not rely on this “exception,” but rather 

presented a reasoned analysis of the use of prior acts evidence for the purpose of 

showing a continuing criminal design (“grooming”) as to the same victim, which 

the Court concluded was a permissible use of evidence for an objective other than 

demonstrating a defendant’s character or propensity.

Truman, 150 Idaho at 722, 249 P.3d at 1177.

Next, we address Osterhoudt’s contention that the evidence was not relevant to Count I 

because the methamphetamine bribes were not “tied” to the charges in Count I. Here, evidence 

was presented to the district court that Osterhoudt first provided methamphetamine to H.O. on 

April 20, 2005, and thereafter provided her with methamphetamine or offered her 

methamphetamine regularly until she went into foster care on November 30, 2006. H.O. testified 

that during this time period, Osterhoudt offered her methamphetamine in exchange for sexual 

intercourse on at least two specific occasions. H.O. also testified that she stopped using 

methamphetamine in September 2006, but nonetheless Osterhoudt continued to offer her 

methamphetamine until she went into foster care. 

We conclude that evidence of Osterhoudt’s act of providing methamphetamine to H.O. in 

exchange for sexual intercourse was admissible to show “grooming.” It indicates that

Osterhoudt repeatedly used a highly-addictive drug as a tool to obtain H.O.’s submission to his 

sexual demands. As discussed in Blackstead, evidence of Osterhoudt’s use of methamphetamine 

as a tool to seduce H.O. and reward her for her submission is relevant to demonstrate the 

criminal design he employed to accomplish the acts he is criminally charged with. Even though 
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Osterhoudt did not provide H.O. with methamphetamine in November 2006--when the charged 

offense occurred--his previous pattern of providing H.O. with the addictive drug was relevant to 

show he was cultivating a controlling relationship over H.O., allowing him to sexually abuse her

in November 2006. Therefore, similar to our determination in Truman, Osterhoudt’s act of 

repeatedly offering H.O. methamphetamine demonstrates his continuing criminal design to 

achieve submission to his sexual demands. See Truman, 150 Idaho at 722, 249 P.3d at 1177 

(holding that the defendant’s sexual comments towards the victim, the act of showing the victim 

pornography, the use of rewards and punishments depending on whether the victim gave in to the 

defendant’s sexual demands, and the sexual acts the two engaged in were admissible evidence to 

establish “grooming”). Thus, the evidence was relevant to demonstrate the criminal design used 

by Osterhoudt to enable him the opportunity to have sexual intercourse with H.O. during the 

time frame alleged in Count I. 

Osterhoudt claims that the probative value of the evidence was substantially outweighed 

by its prejudicial effect. Osterhoudt argues that the evidence was prejudicial because it allowed 

the jury to consider his “ill character” rather than considering the evidence directly related to

Count I. The district court recognized that the evidence was prejudicial, but found that the 

probative value was not substantially outweighed by prejudicial effect. Further, immediately 

following H.O.’s testimony regarding methamphetamine, the district court provided the jury with 

a limiting instruction:

I just wanted to indicate to the jury that evidence has been introduced that 

the defendant has committed crimes, wrongs, or acts other than that for which the 

defendant is on trial. Such evidence if believed is not to be considered by you to 

pro[ve] the defendant’s character or [that] the defendant has a disposition to 

commit crimes. Such evidence may be considered by you only for the limited 

purpose of proof o[f] plan to commit a charged offense in this case.

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, based on the probative value of the evidence and 

the limiting instruction lessening the prejudicial effect, we conclude that the district court did not 

err in allowing evidence that Osterhoudt offered H.O. methamphetamine in exchange for sexual 

intercourse.
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B. Prior Disclosure Evidence

Osterhoudt claims the district court erred by allowing the State to present evidence, in 

rebuttal and pursuant to I.R.E. 404(b), that H.O. reported he engaged in sexual contact with her

when she was five years old. Prior to the second trial, the State provided notice of its intent to 

present testimony that when H.O. was five years old she disclosed to authorities that Osterhoudt 

had sexually touched her (prior disclosure). The district court found that the prior disclosure and 

the instant charges were “too attenuated to establish relevance under [I.R.E.] 404(b).” However, 

the district court stated that if the defendant presented evidence at trial that H.O. “made up” the 

charged allegations because she was angry with Osterhoudt, then evidence of the prior disclosure 

may become relevant. As discussed above, this ruling was applied to the third trial as well.

At trial, defense counsel presented several witnesses who testified that H.O. fabricated 

the charges because she was angry with Osterhoudt for forbidding her from seeing her nineteenyear-old boyfriend. Thereafter, the State requested permission to present the prior disclosure. 

The district court ruled that the door had been opened for the prior disclosure to be admitted for 

the limited purpose of rebutting Osterhoudt’s claim that H.O. fabricated the charges. 

On appeal, Osterhoudt claims that the prior disclosure was not relevant because it did not 

actually rebut the allegation that H.O. fabricated the charges. Osterhoudt’s defense theory was 

that H.O. had a motive to fabricate the charges in order to continue seeing her boyfriend. The 

prior disclosure directly rebuts this claim by showing that H.O. disclosed an incident of sexual 

abuse to authorities prior to the alleged motive to fabricate. As the district court stated, “there 

does not appear to be the presence of other improper motive” for H.O. to make the prior 

disclosure. Thus, the prior disclosure rebuts the allegation of recent fabrication and is relevant. 

Further, even if H.O.’s testimony about the prior disclosure was improper rebuttal, the 

prior disclosure is still relevant to corroborate the testimony of Detective White. Detective 

White testified earlier in the trial that H.O. disclosed to authorities when she was five years old 

that Osterhoudt had touched her inappropriately. A witness’s credibility is always relevant. 

State v. Hairston, 133 Idaho 496, 503, 988 P.2d 1170, 1177 (1999); State v. Arledge, 119 Idaho 

584, 588, 808 P.2d 1329, 1333 (Ct. App. 1991). Accordingly, H.O.’s testimony about the prior 

disclosure is relevant to demonstrate Detective White’s credibility. 

Osterhoudt also claims that the probative value of the prior disclosure is substantially 

outweighed by unfair prejudice. He argues that the evidence is highly prejudicial because it 
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suggests that Osterhoudt sexually abused H.O. significantly longer than the charges alleged. The 

district court conducted an I.R.E. 403 analysis and concluded that the probative value was not 

substantially outweighed by unfair prejudice. We agree. First, the evidence is highly probative 

of H.O.’s credibility. The record demonstrates that Osterhoudt’s defense focused on discrediting 

H.O. and alleging that she fabricated the charges. The prior disclosure shows that H.O. 

complained of sexual abuse well before her alleged motive to fabricate arose. Second, the prior 

disclosure was not highly prejudicial because a different witness had already testified about it. 

During the trial, the lead investigator, Detective White, provided testimony regarding her 

investigation into H.O.’s claims. When cross-examining Detective White, defense counsel 

initiated a line of questioning regarding her investigation tactics:

DEFENSE COUNSEL: Okay. And this is the first time that these 

allegations were disclosed to anyone, correct?

WHITE: No, that’s not true.

DEFENSE COUNSEL: This was the first time to your understanding that 

these allegations had been disclosed; is that correct?

WHITE: No, that’s not true.

Later, outside the presence of the jury, defense counsel objected, arguing that “this 

witness is trying to put before the jury uncharged [I.R.E.] 404(b) conduct.” Based on defense 

counsel’s entire cross-examination, the district court concluded that the door had been “kicked 

down” for the witness to testify about the prior disclosure. Accordingly, on redirect 

examination, the State asked Detective White when H.O. first disclosed the allegations. Defense 

counsel objected on the basis of hearsay, and the district court overruled the objection and 

provided the jury with a limiting instruction. Thereafter, Detective White testified that when 

H.O. was five years old, she disclosed that Osterhoudt sexually abused her.

Osterhoudt does not claim on appeal that the district court erred by allowing Detective 

White to testify about the prior disclosure; nor does he assert that the door was not opened to 

allow such testimony. Instead, he only complains that the district court erred when H.O. testified 

about the prior disclosure. However, given Detective White’s testimony, Osterhoudt has not 

shown how H.O.’s own testimony about the prior disclosure would amount to prejudice as the 

evidence was already before the jury. Further, following H.O.’s testimony, the district court 

provided the jury with another limiting instruction. Therefore, based on the foregoing, we 

conclude that the district court did not err by allowing H.O. to testify about the prior disclosure.
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C. Recordings of Telephone Conversations

Osterhoudt claims that the district court erred by allowing audio recordings of telephone 

conversations between Osterhoudt and defense witnesses to be admitted as substantive evidence. 

Osterhoudt argues that even if the recordings were admissible to show bias, they were still 

hearsay and should not have been admitted for the truth of the statements made. The State 

claims the issue is unpreserved because Osterhoudt did not request that the district court provide 

the jury with an instruction limiting the use of the recordings. Therefore, the State asserts 

Osterhoudt is required to meet the fundamental error standard.3

One of Osterhoudt’s lewd conduct charges stemmed from an alleged incident that 

occurred the night of January 1, 2006. H.O. testified that on that night, she asked Osterhoudt if 

she could go to a movie with her friends. Osterhoudt allegedly told her that she could only go if 

she would have sex with him and then took her outside to the lambing shed and had sexual 

intercourse with her. Multiple defense witnesses testified that they were working in the lambing 

shed during the time H.O. claimed Osterhoudt had sex with her. 

Following the defense’s presentation of evidence, the State sought to admit, as rebuttal 

evidence, recordings between Osterhoudt and certain defense witnesses. The recordings 

contained statements from defense witnesses stating that the family discussed the case together, 

read and distributed letters to each other regarding Osterhoudt’s “story,” and “refreshed” each 

other’s memories. Additionally, the recordings also contained statements about Osterhoudt’s 

lambing shed. Specifically, the recordings indicated that the lambing shed did not contain any 

lambs on January 1, 2006, and that the lambing process generally began in February or March. 

This contradicted defense witnesses’ testimonies indicating that they were working inside the 

lambing shed on January 1, 2006. Osterhoudt objected to the recordings on the basis of hearsay 

and relevance. The district court overruled the hearsay objection, finding that the recordings 

were presumably being admitted for impeachment purposes. The court also overruled the 

relevance objection, finding that the recordings were direct evidence of the witnesses’ bias. In 

its ruling, the district court stated:

 

3 The fundamental error standard applies to unobjected to errors before the district court. 

State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010).
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We’re talking about bias, and I guess to put it uncharitably and maybe the most 

extreme inference again, fabrication or concocting of testimony. The witnesses 

testified to that. Their motive, their bias is all relevant.

. . . .

So bias is not collateral and bias is not something that is limited 

necessarily by the impeachment rule of prior inconsistent statements. And here 

by bias we have an effort where an inference can be drawn strongly from these 

recordings that there was an effort to coordinate testimony which was denied 

directly on the stand.

So in this case, to exclude this evidence would be to hide some of the most 

relevant evidence about the truth of the witnesses[’] testimony from the jury. It’s 

not merely impeaching. It is hugely relevant if it is the type of evidence that is 

direct evidence.

Following the district court’s ruling, the State published the recordings to the jury.

On appeal, Osterhoudt argues that the recordings were hearsay and therefore should not 

have been admitted for the truth of their content. Hearsay is defined as “a statement, other than 

one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the 

truth of the matter asserted.” I.R.E. 801(c). Based on our review of the record, we conclude that 

the statements were not inadmissible as hearsay. The recordings contained two types of 

statements--statements made by defense witnesses and statements made by Osterhoudt. The 

statements made by defense witnesses were not hearsay because they were not offered to prove 

the truth of the statements made on the recordings. Rather, the statements were offered to 

demonstrate the bias of the defense witnesses and to impeach their testimony that was 

inconsistent with statements in the recordings. Osterhoudt’s own statements, pursuant to 

I.R.E. 801(d)(2), were not hearsay as they were statements made by a party-opponent. Pursuant 

to I.R.E. 801(d)(2), statements are not hearsay if the statement is offered against a party and is 

the party’s own statement, in either an individual or a representative capacity. Therefore, the 

district court did not err in overruling Osterhoudt’s hearsay objection.

Osterhoudt could have requested and received an instruction limiting the scope of the 

evidence to impeachment of defense witnesses. Whether a court is required to give a limiting 

instruction sua sponte is a question of law. State v. Moore, 131 Idaho 814, 823, 965 P.2d 174, 

183 (1998). This Court reviews questions of law de novo. Id. Pursuant to I.R.E. 105,4 the 

 

4 Idaho Rule of Evidence 105 states:
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district court is only required to give a limiting instruction when a party requests such an 

instruction. Id. Therefore, the district court did not err in failing to give a limiting instruction

sua sponte.

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Additionally, Osterhoudt claims that the State used the recordings in their closing 

argument for a hearsay purpose as evidence of the truth of the statements in the recordings. 

During closing arguments, defense counsel argued that defense witnesses testified that they were 

working in the lambing shed on January 1, 2006, and that such testimony was not rebutted. In 

rebuttal closing argument, the prosecutor said, “That’s not true. The tape recordings clearly 

rebut that testimony from a very good source: The defendant himself on that tape. And I would 

focus your attention to Exhibit 71 and 72, he said: There’s no sheep. He said it wasn’t lambing 

season.” There was nothing impermissible in this argument. As explained above, Osterhoudt’s 

own statements on the recordings were not hearsay and were admissible to prove the truth of the 

matter asserted. Therefore, the prosecutor was entitled to refer to Osterhoudt’s own admissions 

on the tape as evidence that it was not lambing season and there was no one working in the 

lambing sheds.

D. Cumulative Error

Osterhoudt claims that the accumulation of errors at trial deprived him of a fair trial. The 

cumulative error doctrine refers to an accumulation of irregularities, each of which by itself 

might be harmless, but when aggregated, show the absence of a fair trial in contravention of the 

defendant’s right to due process. Moore, 131 Idaho at 823, 965 P.2d at 183. The presence of 

errors alone, however, does not require the reversal of a conviction because, under due process, a 

defendant is entitled to a fair trial, not an error-free trial. Id. Osterhoudt has failed to show that 

two or more errors occurred in his trial, and therefore the doctrine is inapplicable in this case.

 

When evidence which is admissible as to one party or for one purpose but 

not admissible as to another party or for another purpose is admitted, the court, 

upon request, shall restrict the evidence to its proper scope and instruct the jury 

accordingly.

5 See also United States v. Multi-Management, Inc., 743 F.2d 1359, 1364 (9th Cir. 1984) 

(“It is well-settled that where no limiting instruction is requested concerning evidence of other 

criminal acts, the failure of the trial court to give such an instruction sua sponte is not reversible 

error.”).
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III.

CONCLUSION

Osterhoudt has failed to demonstrate reversible error in the district court’s evidentiary 

rulings. Accordingly, Osterhoudt’s judgment of conviction for rape, incest, and lewd conduct is 

affirmed.

Chief Judge GUTIERREZ CONCURS.

Judge LANSING, CONCURRING IN THE RESULT 

I concur in all parts of the majority opinion except the conclusion in Section II(B) that 

H.O.’s testimony that she had reported sexual abuse by Osterhoudt when she five years old was 

relevant to rebut the defense allegation that H.O. had recently fabricated the allegations for 

which Osterhoudt was charged. According to the majority opinion, H.O.’s own testimony about 

the prior disclosure is relevant to rebut the defense claim that H.O. fabricated the charges after 

Osterhoudt forbade her to see her boyfriend. While I agree that evidence of a disclosure made

prior to the alleged motive to lie would be relevant to rebut the defense claim, logic tells me that 

to be relevant such evidence must come from a source other than H.O.’s testimony.1

 Her own 

testimony about a prior disclosure cannot logically rebut a claim of recent fabrication because 

H.O.’s testimony in court is itself presented after the alleged motive to fabricate arose. What is 

needed to rebut a claim of recent fabrication is evidence from a source other than the testimony 

of the alleged fabricator showing that the alleged fabricator made the same or similar accusations 

before the existence of the motive to lie. If H.O. had a motive to fabricate at the time of trial, her 

testimony that she reported sex abuse at age five is just as likely to be fabricated as her testimony 

that she was sexually abused from ages eleven to fourteen. Logically, her trial testimony about a 

prior disclosure does not reduce the probability that H.O. is lying about the charged offenses.

The majority opinion holds, in substance, that H.O.’s testimony about the prior disclosure 

somehow corroborates her testimony about the subsequent abuse, but in my view that idea is 

without support and logic. The Idaho Supreme Court recently cautioned against admission of 

evidence for corroboration when it does not actually serve that function. In State v. Grist, 147 

 

1 Indeed, our hearsay rule expressly provides that evidence of an out-of-court statement is 

not inadmissible hearsay if it is consistent with the declarant’s testimony and offered to rebut a 

charge against a declarant of recent fabrication or improper influence or motive. Idaho Rule of 

Evidence 801(d)(1).
14

Idaho 49, 53-54, 205 P.3d 1185, 1189-90 (2009), the Court said: “[W]e wish to emphasize that 

evidence offered for the purpose of ‘corroboration’ must actually serve that purpose; the courts 

of this state must not permit the introduction of impermissible propensity evidence merely by 

relabeling it as ‘corroborative’ or as evidence of a ‘common scheme or plan.’” The Court went 

on to define the verb “corroborate” in part by stating that “the testimony of a witness is said to be 

corroborated when it is shown to correspond with the representation of some other witnesses, or 

to comport with some facts otherwise known or established.” Id. at 54, 205 P.3d at 1190 

(quoting BLACK’S LAW DICTIONARY 311 (5th ed. 1979)). That definition requires that the 

corroboration come from a different witness or other independent source of facts and does not 

encompass one witness bolstering her own allegations by making some additional, different 

allegations. See State v. Witmer, 118 N.W.2d 510, 512 (Neb. 1962) (“If a witness testifies that 

criminal intercourse was had upon one day, the fact that she testifies that a like act was had upon 

another occasion does not corroborate her testimony.”).

Fortunately for the State, however, there was other evidence of H.O.’s prior disclosure. 

As noted in the majority opinion, Detective White testified that H.O. had reported sexual abuse 

by Osterhoudt when she was five years old. That testimony, which is not challenged by 

Osterhoudt on appeal, plainly was relevant to rebut the defense theory that H.O. was motivated 

by Osterhoudt’s impeding her relationship with her boyfriend. I conclude that after Detective 

White, an independent source of the information, had testified to the prior disclosure, H.O.’s own 

testimony verifying that she had disclosed abuse when she was five years old was at least 

marginally relevant to corroborate Detective White’s testimony. I also concur with the 

majority’s conclusion that the probative value of H.O.’s testimony on this point was not 

outweighed by the risk of unfair prejudice. Therefore, I concur in the ultimate conclusion that 

H.O.’s testimony was properly admitted, but only for the purpose of corroborating Detective 

White, and not for the purpose of corroborating herself by purportedly rebutting the defense 

theory of recent fabrication.