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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 36841

STATE OF IDAHO,

Plaintiff-Respondent,

v.

RUSSELL G. JONES,

Defendant-Appellant.

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2011 Opinion No. 57

Filed: September 12, 2011

Stephen W. Kenyon, Clerk

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

Elmore County. Hon. Cheri C. Copsey, District Judge. 

Judgment of conviction for two counts of rape, affirmed in part and reversed in 

part. 

Molly J. Huskey, State Appellate Public Defender; Sarah E. Tompkins, Deputy 

Appellate Public Defender, Boise, for appellant. Sarah E. Tompkins argued.

Hon. Lawrence G. Wasden, Attorney General; Elizabeth A. Koeckeritz, Deputy 

Attorney General, Boise, for respondent. Elizabeth A. Koeckeritz argued.

________________________________________________

GUTIERREZ, Judge

Russell G. Jones appeals from the judgments of conviction entered upon jury verdicts 

finding him guilty of two counts of rape. For the reasons set forth below, we affirm in part and 

reverse in part. More specifically, we uphold the conviction in regard to Count I and vacate the 

conviction in regard to Count II. 

I.

FACTS AND PROCEDURE

Jones, A.S., and Craig Carpenter had been friends for approximately fifteen years in the 

spring of 2008. A.S. and Carpenter were engaged and had children together. However, 

unbeknownst to Carpenter, Jones and A.S. had been having a sexual relationship for 

approximately four years. On May 22, 2008, after spending the night alone together in Jackpot, 

Nevada, Jones and A.S. returned to A.S.’s apartment--deciding on the drive back to Idaho they 
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should end their affair. However, the next morning they engaged in consensual sex. Afterwards, 

A.S. went to the bathroom and when she returned to the bedroom Jones was on the computer 

looking at pornographic material. He sat down on the bed next to her and began to touch her. 

A.S. reacted by telling Jones, “[I] thought we had decided that the time before that was the last 

time and it wasn’t going to happen anymore.” Jones stopped touching her, got up, and walked 

around behind her. A.S. got up on her elbows and saw that Jones was unfastening his pants. She 

protested that she did not want to engage in intercourse, but he “leaned forward” and A.S. was

“pushed down . . . to where [she] couldn’t get up” and her arms were pinned beneath her body. 

Jones then moved A.S.’s underwear aside and had intercourse with her. Afterward, Jones 

apologized to A.S., asked her if she was alright, and told her that she could “press charges” if she 

wanted to because he was “out of line” and had “lost control.” After Jones left the residence, 

A.S. called the Women’s Center at Boise State University and spoke to a counselor. After telling 

the counselor that she had been raped, she was advised to call the police, which she did not do. 

She continued to be in contact with Jones, including going with him again to Jackpot. 

Several days later on May 27, Jones came to watch movies at A.S.’s residence. Jones 

spent the night on A.S.’s couch and remained in the apartment after Carpenter left for work and 

A.S.’s children left for school. A.S. testified that during this time she was taking a prescribed 

anti-anxiety medication which caused her to experience marked drowsiness and had taken an

over-the-counter antihistamine to treat a bee sting, which also caused her to feel drowsy. Due to 

her drowsiness, A.S. lay down on the couch in the living room, while Jones used the computer in 

her bedroom. Jones entered the living room, sat next to her, and began to stroke her hair. A.S.

testified that Jones pulled her hair, but A.S. did not respond and pretended to be asleep. Jones 

then grabbed at A.S.’s breasts, forcefully touched her private area, and proceeded to engage in 

intercourse with her while she was lying on the couch and not moving. A.S. testified that she 

was “paralyzed by fear” and neither physically resisted Jones nor made any verbal protest. A.S.

testified that she had hoped Jones would cease if she did not respond to him physically.

After the encounter, the two went to the bedroom and shared a cigarette. Jones assisted 

A.S. in getting into bed and again began to have sexual intercourse with her. There was no 

testimony by A.S. that she protested or asked Jones to stop during this second encounter, and he 

stopped on his own accord, stating “Baby, I do have a problem.” He asked if they could resume 

having sex, which she refused. Jones eventually left the residence.
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A.S. drove to Carpenter’s brother’s house and told him and his girlfriend that Jones had 

raped her. They took A.S. to the hospital, where she told staff that she had been sexually 

assaulted, but did not want to press any legal charges. However, law enforcement officers were 

contacted and A.S. provided a statement to the police while at the hospital. 

On May 29, A.S. met with a detective who arranged a recorded confrontation call. On 

the tape, Jones is heard apologizing for both incidents, admitting to A.S. that he “continued” with 

the sexual acts despite her telling him no in the first instance and her not responding in the 

second instance, and agreeing that, after the first instance, he sent her text messages “promising 

[her] it wouldn’t happen again.” In addition, in several of the audible portions of the audio 

recording, A.S. can be heard to clearly say to Jones, “You think this is ok to do to people who are 

unconscious? Apparently you’ve done this to [M.C., a former girlfriend] before, and now you 

did it to me.” Jones says, in response to A.S.’s prodding, that he was already on felony probation 

for domestic battery based on similar circumstances and that he would have to register as a sex 

offender based on A.S.’s allegations. A.S. also asked Jones to describe the “bad things” that he 

had done in the past, to which he responded that he had “hurt [M.C.]” and committed prior 

driving under the influence (DUI) offenses. 

Jones was charged with two counts of forcible rape, Idaho Code § 18-6101(3)1

, based on 

the May 22 incident in the bedroom (Count I) and the May 27 incident on the couch (Count II). 

At trial, A.S. testified as to her version of the events regarding the two counts of rape and 

admitted that she had never informed police that she and Jones had been involved in a 

consensual sexual relationship for four years at the time of the incidents. She also admitted that 

she had given police an incomplete account of the facts when providing them with her 

statements--specifically, she did not tell them that she had engaged in consensual sex with Jones 

earlier in the day on May 22, and while she had shown officers text messages from Jones that she 

thought were incriminating, she did not reveal to the officers other text messages that she had 

sent to Jones indicating that she loved him and that would have revealed their past relationship. 

Additionally, A.S. admitted that as of the time of trial she was still concealing her past sexual 

relationship with Jones from Carpenter. 

 

1 Pursuant to a 2010 amendment, this section is now Idaho Code § 18-6101(4). The 

statutory references hereafter will be to the version in effect at the time Jones was charged. 
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Defense counsel cross-examined A.S. at length about a letter she had written in which she 

recanted her allegations of rape--which had been notarized and given to the prosecution prior to 

trial. In the letter, A.S. characterized the events forming the basis of her allegations of rape as a 

misunderstanding between her and Jones and asserted that Jones was being wrongfully charged. 

A.S. later sent the prosecutor another letter retracting her retraction and indicating her desire to 

go forward with the rape charges--a change of heart which she indicated was due to having 

undergone counseling.

The State presented the testimony of the registered nurse who performed the examination 

of A.S. on May 28. The nurse indicated that A.S. appeared frightened, was crying, spoke in a 

soft tone of voice, did not make eye contact, and curled up in the fetal position after the 

examination. The nurse also testified that she found no physical findings of trauma consistent 

with rape during the examination, specifically that there was no evidence of bruising, scraping, 

or scratches anywhere on A.S.’s body.

At one point in the trial, Jones moved that the State’s recording of his May 29 phone 

conversation with A.S. be redacted before being played to the jury to omit any references to 

allegations of prior bad acts that Jones had committed against M.C., specifically the implication 

that Jones had engaged in sexual intercourse with M.C. while she was asleep. The district court 

ruled that the tape should not be redacted, stating that because Jones was on trial for forcible rape 

and not for rape while A.S. was unconscious, the court “didn’t see how this is prejudicial.” 

The State’s final trial witness was Detective Bob Chaney, who had met with A.S. after 

the incidents and had facilitated the taping of her call to Jones. While he was on the stand, the 

un-redacted tape was played for the jury. Detective Chaney then testified that he looked at and 

wrote down several text messages from Jones to A.S., which were admitted into evidence, but 

that he did not examine any messages that A.S. sent to Jones--including those in which she 

expressed her love for Jones. He was also apparently still unaware that Jones and A.S. had been 

engaged in a four-year consensual sexual relationship and that the two had engaged in 

consensual sexual intercourse earlier on May 22. The detective also testified that no physical 

evidence of rape had been found after completion and testing of the rape kit. 

At the close of evidence, Jones moved for a directed verdict based on the failure of the 

State to prove that A.S. resisted sexual intercourse and that her resistance was overcome by 

force. The district court denied the motion. The jury convicted Jones of both counts of rape and 
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Jones was sentenced to concurrent twenty-five year sentences, with five years determinate for 

each count. Jones now appeals, challenging his convictions on sufficiency of the evidence 

grounds and on an evidentiary ruling error. 

II.

ANALYSIS

A. Sufficiency of the Evidence

Jones contends that there was insufficient evidence to support the jury’s verdicts on both 

counts because the State failed to prove, beyond a reasonable doubt, both that A.S. physically 

resisted Jones and that her resistance was overcome by force or violence, elements that are 

required by the statute. 

Appellate review of the sufficiency of the evidence is limited in scope. A judgment of 

conviction, entered upon a jury verdict, will not be overturned on appeal where there is 

substantial evidence upon which a reasonable trier of fact could have found that the prosecution 

sustained its burden of proving the essential elements of a crime beyond a reasonable doubt. 

State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998); State v. 

Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App. 1991). Substantial evidence is such 

relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State 

v. Byington, 132 Idaho 589, 593, 977 P.2d 203, 207 (1999); State v. Johnson, 149 Idaho 259, 

263, 233 P.3d 190, 194 (Ct. App. 2010). We will not substitute our view for that of the jury as to 

the credibility of the witnesses, the weight to be given to the testimony, and the reasonable 

inferences to be drawn from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. 

Decker, 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the 

evidence in the light most favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 

P.2d at 1101; Knutson, 121 Idaho at 104, 822 P.2d at 1001. 

Jones was charged solely under I.C. § 18-6101(3) in both counts. At the time of the 

charged offenses, the statute provided that:

Rape is defined as the penetration, however slight, of the oral, anal or 

vaginal opening with the perpetrator’s penis accomplished with a female under 

any one (1) of the following circumstances:

. . . . 

(3) Where she resists but her resistance is overcome by force or 

violence.
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As stated in the comment to Idaho Criminal Jury Instruction 904, entitled “Resistance to Rape,” 

which was given to the jury in this case:

In Idaho, a rape victim is not required to resist to the utmost of the 

victim’s ability. State v. Neil, 13 Idaho 539, 90 P. 860 (1907). The importance of 

resistance by the victim is simply to show two elements of the crime--the 

assailant’s intent to use force in order to have sexual intercourse and the victim’s 

non-consent. State v. Andreason, 44 Idaho 396, 257 P. 370 (1927). See also, 

State v. Fowler, 13 Idaho 317, 89 P. 757 (1907); State v. Lewis, 96 Idaho 743, 536 

P.2d 738 (1975); State v. Robran, 119 Idaho 285, 805 P.2d 491 (Ct. App. 1991); 

State v. Gossett, 119 Idaho 581, 808 P.2d 1326 (Ct. App. 1991).

1. Count I

Jones contends that in regard to Count I, there was insufficient evidence to support the 

charge because there were no facts establishing “either physical force on the part of Mr. Jones, 

nor any physical resistance in any fashion on the part of [A.S.].” 

a. resistance 

Jones contends that while A.S. testified that during the May 22 encounter she told Jones 

several times that she did not want to have sex with him, this evidence goes to a lack of consent, 

but does not, in itself, “show any proof of physical resistance on her part, nor the use of force or 

violence on the part of Mr. Jones.” He cites to State v. Roles, 122 Idaho 138, 832 P.2d 311 (Ct. 

App. 1992) for the proposition that Idaho case law has “implicitly recognized the distinction 

between force and lack of consent in forcible rape.” Jones contends that under Idaho case law,

“while lack of consent is an implied element of rape, proof of mere lack of consent cannot 

substitute for actual evidence of force and resistance where the state charges a defendant with 

forcible rape pursuant to I.C. § 18-6101(3).” 

Thus, we first examine whether there was sufficient evidence presented that A.S.

“resisted” Jones as to Count I. Because it is undisputed that the only possible resistance that A.S. 

engaged in was verbal, the question is specifically whether Jones is correct in his assertion that 

the statute requires physical resistance or whether verbal resistance alone satisfies the element. 

This Court exercises free review over the application and construction of statutes. State 

v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a 

statute is plain and unambiguous, this Court must give effect to the statute as written, without 

engaging in statutory construction. State v. Rhode, 133 Idaho 459, 462, 988 P.2d 685, 688 

(1999); State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 
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Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be given its 

plain, obvious, and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the 

language is clear and unambiguous, there is no occasion for the court to resort to legislative 

history or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. When this 

Court must engage in statutory construction, it has the duty to ascertain the legislative intent and 

give effect to that intent. Rhode, 133 Idaho at 462, 988 P.2d at 688. To ascertain the intent of 

the legislature, not only must the literal words of the statute be examined, but also the context of 

those words, the public policy behind the statute, and its legislative history. Id. It is incumbent 

upon a court to give a statute an interpretation which will not render it a nullity. State v. Beard, 

135 Idaho 641, 646, 22 P.3d 116, 121 (Ct. App. 2001). Constructions of a statute that would 

lead to an absurd result are disfavored. State v. Doe, 140 Idaho 271, 275, 92 P.3d 521, 525 

(2004); State v. Yager, 139 Idaho 680, 690, 85 P.3d 656, 666 (2004).

The term “resistance” is not defined in the statute, nor is there any attendant legislative 

history. We note that at common law a state had to prove beyond a reasonable doubt that the 

woman resisted her assailant to the utmost of her physical capacity to prove that an act of sexual 

intercourse was rape--known as the “utmost resistance” standard. Michelle J. Anderson, 

Reviving Resistance in Rape Law, U. ILL. L. REV. 953, 962 (1998). See also Joshua Mark Fried, 

Forcing the Issue: An Analysis of the Various Standards of Forcible Compulsion in Rape, 23

PEPP. L. REV. 1277, 1286 (1996); Susan Estrich, Rape, 95 YALE L.J. 1087, 1122-23, 1130-31 

(1986). Thus, legal decision-makers have historically ignored evidence of a woman’s verbal 

resistance; under the law, verbal resistance was simply inadequate to prove anything. Anderson, 

supra, at 992.

When it became apparent that the “utmost” resistance standard made rape nearly 

impossible to prove, many states began to abandon the requirement. Id. at 964. In its place, 

some states required that women exert only “earnest” resistance to establish that an act of sexual 

intercourse was without consent and by force--a standard which remains codified in two states. 

Id. Rejecting the “utmost” and “earnest” resistance requirements, other jurisdictions have moved 

to require only “reasonable” resistance on the part of the rape victim. Id. at 965. This standard, 

still codified by six states, requires that a woman offer resistance which is “reasonable under the 

circumstances,” and she is not required to actively resist if she reasonably believes that resistance 

would be useless and would result in serious bodily injury. Id. at 965-66. 
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Eventually, however, approximately thirty-two states, the Model Penal Code, the District 

of Columbia Code, and the Uniform Code of Military Justice eliminated the formal resistance 

requirement altogether by not mentioning resistance in the statutory language describing rape, 

allowing prosecutors to establish that a rape occurred even in the absence of any resistance by 

the woman. Id. at 966. Six more states explicitly note in their criminal codes that physical 

resistance is not required to substantiate a rape charge. Id. at 966-67. Thus, Idaho remains one 

of few states that still statutorily require resistance to prove forcible rape and one of even fewer 

whose statute does not specify the requisite amount of resistance that will suffice. 

While not explicitly addressing the issue, early twentieth-century Idaho cases provide 

insight into the nature of the statute’s resistance requirement. In State v. Neil, 13 Idaho 539, 547, 

90 P. 860, 862 (1907), the Idaho Supreme Court held that a victim need not resist to the utmost 

of her ability, thus deviating from the common-law requirement of utmost resistance.2 The 

Court further explored the resistance requirement stating: “[t]he importance of resistance by the 

woman is simply to show two elements of the crime--the assailant’s intent to use force in order 

to have carnal knowledge, and the woman’s non-consent.” State v. Andreason, 44 Idaho 396, 

400, 257 P. 370, 371 (1927) (quoting People v. Norrington, 202 P. 932, 935 (Cal. Ct. App. 

1921)). We interpret these cases as pointing toward a less restrictive interpretation of the 

resistance requirement than is argued by Jones. 

Also helpful in elucidating the issue, we note that Washington’s forcible rape statute, like 

Idaho’s, references the “overcoming” of resistance, but does not specify the type and amount of 

resistance that a victim must employ. Specifically, the Washington statutory scheme defines

 

2 Citing Idaho Code § 73-116, Jones contends that we are bound to apply the common law 

definition of resistance as it existed at the time of the adoption of the rape statute because the 

Idaho Legislature has not expressly altered Idaho’s adherence to this definition. Idaho Code 

§ 73-116 provides:

The common law of England, so far as it is not repugnant to, or 

inconsistent with, the constitution or laws of the United States, in all cases not 

provided for in these compiled laws, is the rule of decision in all courts of this 

state.

We note, however, that early case law interpreted “resistance” for purposes of Idaho’s rape 

statute as requiring less than was required at common law. State v. Neil, 13 Idaho 539, 547, 

90 P. 860, 862 (1907).
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“forcible compulsion,” referenced in its first and second degree rape statutes, as “physical force 

which overcomes resistance . . . .” WASH. REV. CODE ANN. § 9A.44.010(6) (West 2011) 

(emphasis added). In interpreting this language, Washington courts have repeatedly held that to 

prove forcible compulsion, the state need not show that the victim physically resisted, but rather 

the question of whether resistance occurred is a fact-sensitive determination based on the totality 

of the circumstances, including the victim’s words and conduct. State v. McKnight, 774 P.2d 

532, 534 (Wash. Ct. App. 1989). In McKnight, the court explained the reasoning for holding that 

a victim need not physically resist:

The recent trend, in recognition of the fact that a victim’s resistance 

increases the likelihood of the attacker’s use of violence, has been either to 

dispense with the resistance requirement altogether, allowing forcible compulsion 

to be established solely on a showing of force, State v. Mackor, 11 Conn. App. 

316, 527 A.2d 710, 714-15 (1987); People v. Barnes, 42 Cal. 3d 284, 228 Cal.

Rptr. 228, 721 P.2d 110, 117 (1986), or to allow the resistance requirement of 

forcible compulsion to include resistance manifested by other than physical 

means. People v. Dozier, 85 A.D.2d 846, 447 N.Y.S.2d 35, 36 (1981) (Main, J., 

dissenting) (under statutory revision defining forcible compulsion to require only

“so much resistance as is reasonable under the circumstances” resistance is not 

confined to physical resistance, but includes escaping or crying out, if, under the 

circumstances, physical resistance would increase the likelihood of violence by 

the perpetrator); State v. Reed, 166 W. Va. 558, 276 S.E.2d 313, 317 (1981)

(under statutory definition of forcible compulsion as “force that overcomes such 

earnest resistance as might reasonably be expected under the circumstances . . .

‘resistance’ includes physical resistance or any clear communication of the 

victim’s lack of consent.”).

Id. The court then turned to the facts of the case--the victim, a fourteen-year-old girl, had invited 

a casual acquaintance, a seventeen-year-old boy, into her home because she was “bored and 

lonely.” The two started kissing, but the victim testified that when she told the defendant to stop 

he started to slowly push her down on the couch and take off her clothes. She continued to tell 

him to stop and testified that at this point she was “scared.” The defendant then lay on top of her 

and had sexual intercourse with her. It was undisputed that the victim had not physically resisted 

the defendant. However, the court concluded, looking at the totality of the facts, that there was 

sufficient evidence that she had resisted the defendant. Specifically, there was testimony that she 

was “physically weak” and therefore a reasonable trier of fact could conclude that she was 

incapable of physically resisting. There was also evidence that she had never dated a boy, it was 

her first sexual intercourse experience, and she was “unsophisticated and naïve.” Therefore, it 
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was reasonable to conclude that she did not fully comprehend what was occurring and that she 

need only offer resistance commensurate with her limited understanding. The court also noted 

that although there was no evidence that she had struggled or cried out, she was pushed into a 

prone position by the defendant, he removed her clothes, she was alone with him, scared, and 

physically weak, and therefore a reasonable trier of fact could conclude that she did not cry out 

or struggle, because from her perspective, it may have felt futile. Overall, the court concluded 

that the victim’s resistance was reasonable under the circumstances and established the rule that 

forcible compulsion may be found in the presence of other forms of nonphysical resistance that 

are “reasonable under the circumstances,” given the physical size differences between the victim 

and perpetrator, the victim’s perception of the futility of a physical struggle, and the victim’s 

sense of intimidation and fear. Id. at 535.

Given Idaho’s statutory and case law history, we, like the Washington court, ascertain 

that “resist” as it is used in Idaho’s forcible rape statute does not require that the victim have 

physically resisted.3 First and foremost, the plain language of the statute does not indicate that 

resistance must be physical. In addition, it has also been established that a victim need not resist 

to the utmost of her ability, Neil, 13 Idaho at 541, 90 P. at 862, and that the importance of 

resistance by the victim is simply to show two elements of the crime--the assailant’s intent to use 

force in order to have sexual intercourse and the victim’s non-consent, Andreason, 44 Idaho at 

399, 257 P. at 371.

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 To interpret the statute rigidly as requiring physical resistance is contrary to 

the general tenor of these decisions. Accordingly, we hold that whether the evidence establishes 

the element of resistance is a fact-sensitive determination based on the totality of the 

circumstances, including the victim’s words and conduct. 

We note that this standard is not a “reasonable” resistance standard which determines the 

reasonableness of a victim’s resistance against an objective standard of reasonableness. Such an 

approach is problematic because it defeats the very rationale that brought about its existence (in a 

progression from the utmost resistance standard), which is the fact that not every victim reacts 

similarly to rape. It is very difficult, if not impossible, to quantify how a rape victim would react 

 

3 We note that Jones cites to no other state which continues to adhere to the common-law 

requirement that physical resistance must be shown in all cases.

4 Neil and Andreason both involved charges of assault with intent to commit rape which 

required proof of specific intent.
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under “same or similar circumstances.” Fried, supra, at 1280 n.22. Rather, the standard we 

apply includes consideration of the victim’s individual characteristics in determining whether she 

exhibited legally recognizable resistance. In State v. Juhasz, 124 Idaho 851, 854, 865 P.2d 178, 

181 (Ct. App. 1993), this Court implicitly recognized that such an inquiry was relevant. There, 

in determining whether a grand jury indictment should be dismissed because alleged irrelevant 

testimony was introduced, we indicated that the victim’s mother’s testimony about her thirteenyear-old daughter’s level of sexual sophistication, her daughter’s embarrassment over the 

incident, and some of the reasons for her daughter’s shyness and social immaturity were relevant 

to the elements of forcible rape and the thirteen-year-old girl’s ability to resist an attacker. Id. 

Turning to the facts of the instant case, we conclude that there was substantial evidence 

that the jury could find that A.S. resisted Jones’s advances. A.S. testified that she “kept yelling 

at [Jones] and pleading for him to stop and please quit” and was unable to physically resist 

because he was on top of her, pinning her arms beneath her body. Jones’s statements to her 

afterwards indicate that he knew she did not want to engage in the act--including telling her that 

he had “lost control.” This evidence unequivocally shows that A.S. explicitly communicated to 

Jones her non-consent to sexual intercourse. Accordingly, we conclude that there was 

substantial evidence for a reasonable trier of fact to conclude that A.S. “resisted” as required by 

the statute. 

b. force or violence

Jones also contends there was insufficient evidence to prove that he used force or 

violence to overcome A.S.’s resistance. Specifically, he notes that there was no evidence 

presented that he was violent towards A.S., nor that he applied any physical force beyond that 

required to accomplish the actual penetration. The State counters, contending evidence that 

Jones pushed A.S. down, pinned her arms under her, adjusted her underwear, and proceeded to 

engage her sexually was sufficient evidence of force or violence. 

While Idaho’s forcible rape statute identifies the necessary effect of the force (that it 

overcome the victim’s resistance), it does not otherwise indicate the quantum of force required. 

See 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 17.3(a) (2d ed. 2003). The amount of 

force required by the forcible rape statute--specifically, whether the force exerted must be more 

than is inherent in the sexual act--is an issue of first impression in Idaho. 

A prominent commentator has noted that because the statutes defining the crime of rape 
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typically do not establish an amount of physical coercion sufficient to demonstrate that sexual 

activity was accomplished “by force,” the requisite degree of force mandated by the courts has 

been subject to considerable dispute and variation. Id. For the most part, however, the treatment 

by the courts of this issue reflects one of two standards--which represent different approaches to 

the force element and to the degree and mechanisms of force that the prosecution must show in 

order to obtain a rape conviction--the intrinsic force standard and the extrinsic force standard. 

Id. The latter approach reflects the more traditional view, which is that the force requirement 

ordinarily requires proof of use of force or threat of force above and beyond that inherent in the 

act of nonconsensual intercourse, while the intrinsic force standard is the opposite, that force 

inherent in the act itself suffices. Id. 

An over one-hundred-year-old United States Supreme Court case, Mills v. United States, 

164 U.S. 644 (1897), set the precedent that in certain instances, the defendant must have 

demonstrated force beyond the act of raping the victim in order for a rape conviction to be 

sustained. This extrinsic force standard is still the most commonly adopted. In Commonwealth 

v. Berkowitz, 641 A.2d 1161 (Pa. 1994), the Pennsylvania Supreme Court applied the standard, 

holding that the defendant had not committed rape because the victim failed to show that the 

defendant had used the requisite force or threat of force to compel her to have intercourse.5

 Id. at 

1166. The victim in the case had entered the defendant’s dorm room in search of the defendant’s 

roommate. After locking the door, the defendant sat beside the victim, lifted up her shirt, and 

fondled her breasts. The victim offered no physical resistance as he proceeded to engage in 

sexual intercourse with her, but testified that she had repeatedly stated “no” during the encounter. 

Noting that the issue of force is “relative and depends on the facts of the case,” the court 

determined that the prosecution had not demonstrated the forcible compulsion element, focusing 

primarily on the actual degree of physical force exerted by the defendant--specifically the precise 

 

5 At the time Berkowitz was decided, Pennsylvania’s forcible rape statute required that the 

sexual intercourse occur without the consent of the victim and by “forcible compulsion.” 

Berkowitz, 641 A.2d at 1163. A victim need not have resisted and the force necessary to support 

a conviction of rape need only be such as to establish lack of consent and to induce the victim to 

submit without additional resistance. Id. 
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degree of the shove by which the defendant had put the victim on the bed6 and whether the 

untying of her sweatpants was the only physical contact made with the defendant. Id. at 1163-

64. The court also noted the victim had agreed that the defendant had not verbally threatened 

her, the defendant’s hands were not restraining her in any manner during the actual penetration, 

and that the weight of his body on top of her was the only force applied. Id. at 1164.7 Cf. 

Commonwealth v. Garaffa, 656 A.2d 133, 136 (Pa. 1995) (distinguishing Berkowitz where the 

defendant had pushed the victim down on the bed and the victim had fought the defendant’s 

advances and pushed him away). 

The Rhode Island Supreme Court has similarly adopted the extrinsic force standard. In 

State v. Jacques, 536 A.2d 535 (R.I. 1988), the Court interpreted the state’s sexual assault statute 

which provided that “a person is guilty of first degree sexual assault if he or she engages in 

sexual penetration with another person” and any of several circumstances existed, which in this 

case was that the defendant used “force or coercion.” Id. at 537 (quoting R.I. GEN. LAWS, § 11-

37-2 (West 2011)). The state’s statutory scheme defined “force or coercion” in several ways, the 

relevant one being that the defendant “overcomes the victim through the application of physical 

force or physical violence.” R.I. GEN. LAWS, § 11-37-1 (West 2011). In interpreting the statute, 

the Court concluded that proof of force apart from the act of penetration was required under the 

statute. Jacques, 536 A.2d at 537. The Court based this conclusion on the fact that it had 

previously held that every element necessary to prove rape under the common law must be 

proved under the sexual assault statute and “[w]ithout question, proof of overcoming the victim’s 

resistance by force, fear, or other prohibited conditions was required under the common law.” 

Id. In addition, the Court noted that the sexual assault statute listed other situations in which 

penetration alone was sufficient for a conviction (those scenarios which did not explicitly require

 

6 The court found the following statements by the victim to be especially telling in this 

regard: “He put me down on the bed. It was kind of like--He didn't throw me on the bed. It's 

hard to explain. It was kind of like a push but not--I can't explain what I'm trying to say.” 

Berkowitz, 641 A.2d at 1164.

7 Following the Berkowitz decision, the Pennsylvania legislature responded by enacting a 

statute intended to fill the loophole left by the rape and involuntary deviate sexual intercourse 

statutes by criminalizing nonconsensual sex where the perpetrator employs little or no force, 18 

Pa. C.S.A. § 3124.1 (West 2011), and by defining “forcible compulsion” as “[c]ompulsion by 

use of physical, intellectual, moral, emotional or psychological force, either express or implied.” 

18 Pa. C.S.A. § 3101 (West 2011). 
14

“force or coercion”) and this fact, combined with the explicit legislative definition of force or 

coercion, was “an indication . . . that proof of force beyond that which is used in the 

consummation of the act is required to sustain a conviction for first-degree sexual assault.” Id. 

The Court concluded that all of the above factors indicated that the use or threatened use of force 

must occur before the penetration occurs. Id. 

Washington courts have also expressly adopted the extrinsic force standard. In 

McKnight, 774 P.2d at 535, the facts of which are described above, the Court of Appeals was 

called on to interpret the state’s second degree rape statute which provides that a person is guilty 

of the crime when the person engages in sexual intercourse with another person by, among other 

circumstances, “forcible compulsion.” Forcible compulsion was defined, under a statute in 

effect at the time, as “physical force which overcomes resistance.” Id. at 533. Defining the 

requisite force, the court stated: 

The force to which reference is made in forcible compulsion “is not the 

force inherent in the act of penetration but the force used or threatened to 

overcome or prevent resistance by the female.” (Footnote omitted.) 3 C. Torcia, 

Wharton’s Criminal Law § 288 at 34 (14th ed. 1980) (citing Mills v. United 

States, 164 U.S. 644, 648-49, 17 S. Ct. 210, 211, 41 L. Ed. 584 (1897)) cf. People 

v. Tollack, 105 Cal. App. 2d 169, 233 P.2d 121, 122 (1951) (“force,” as referred 

to in “forcible compulsion,” “implies physical power exerted on a person or thing

. . . . The kind of force is immaterial; * * * it may consist of the taking of indecent 

liberties with a woman, or laying hold of and kissing her against her will.”); 

Prokop v. State, 148 Neb. 582, 28 N.W.2d 200, 203, 172 A.L.R. 916 (1947) (the 

degree of force to constitute common law rape is relative, depending on the 

circumstances, but must be enough to overcome the victim and have intercourse 

against her will). Where the degree of force exerted by the perpetrator is the 

distinguishing feature between second and third degree rape, to establish second 

degree rape the evidence must be sufficient to show that the force exerted was 

directed at overcoming the victim’s resistance and was more than that which is 

normally required to achieve penetration.

Id. at 535. Accord State v. Bunyard, 133 P.3d 14, 24-25 (Kan. 2006) (holding that it was a 

misstatement of the law for the prosecutor to state that the penetration force of defendant’s penis 

into the victim’s vagina satisfied the force element of rape charge; rape is defined as “sexual 

intercourse with a person who does not consent to the sexual intercourse when the victim is 

overcome by force or fear,” and thus the prosecutor improperly equated the “overcome by force 

or fear” element of rape with the act of sexual intercourse/penetration); Martin v. State, 686 A.2d 

1130, 1155 (Md. Ct. Spec. App. 1996) (holding that the element of “force or threat of force” 
15

obviously means more than the mere physical exertion required to engage in a sexual act against 

the will and without the consent of the other person); State v. Kaufman, 931 N.E.2d 143, 158 

(Ohio Ct. App. 2010) (holding that in the context of the forcible rape statute, some amount of 

force must be proven beyond that force inherent in the crime itself); Sabol v. Commonwealth, 

553 S.E.2d 533, 536 (Va. Ct. App. 2001) (holding that in the context of rape, force generally 

requires proof of more than “merely the force required to accomplish . . . the statutorily defined 

criminal acts”; rather, there must be evidence of “some array or show of force in a form 

sufficient to overcome resistance”). 

On the other hand, the adoption of the intrinsic force standard is indicative of a modern 

trend toward the eradication of the element of force and is most clearly observed in recent court 

opinions that narrowly construe sexual assault provisions in favor of the victim. Fried, supra, at 

1300. In New Jersey, for example, forcible sexual assault is defined as “sexual penetration with 

another person” with the use of “physical force or coercion.” N.J. Stat. Ann. § 2C:14-2c(1) 

(West 2011). Such statutes have traditionally been interpreted as requiring demonstrative force 

beyond the act of penetration, an interpretation that a lower state court adopted in In re M.T.S., 

588 A.2d 1282, 1285 (N.J. Sup. Ct. 1991) (rev’d 609 A.2d 1266 (N.J. 1992), holding that the 

mere act of penetration itself could not satisfy the element of “physical force or coercion” since 

such an interpretation would render the statute “meaningless.”8

 The New Jersey Supreme Court 

disagreed, however, adopting the intrinsic force standard which effectively eliminates the need 

for the prosecution to demonstrate any extra force beyond the actual intercourse with the victim. 

In re M.T.S., 609 A.2d 1266 (N.J. 1992). In M.T.S., the victim testified that she fell asleep on her 

bed and awoke to find that her shorts and underwear were removed and the defendant was lying 

on top of her in the act of penetration. The court first concluded that, as evidenced by 

disagreements among lower courts and the parties, as well as the variety of possible usages as 

defined in the dictionary, the statutory words “physical force” did not evoke a single meaning 

that was obvious and plain, and thus the court had to engage in statutory construction. Id. at 

1270. The court then traced the history of rape law and its now seemingly arcane requirements 

which essentially put the victim “on trial” and then, in this context, recognized that the current 

rape statute had been conceived of as a reform measure which would result in the treatment of 

 

8 In re M.T.S. was decided under a previous version of the statute which was, in relevant 

part, substantially the same as the current sexual assault statute.
16

rape victims just like those of other violent crimes--an important consideration in understanding 

the legislative intent and determining the objectives of the law. Id. at 1274-75. The court 

specifically noted that the crime in New Jersey was now defined in terms of the defendant’s acts 

of physical force or coercion without reference to a victim’s submission or resistance. Id. at 

1275. The statute does not refer to force in relation to “overcoming the will” of the victim or the

“submission” of the victim and thereby placed primary emphasis on the assaultive nature of the 

crime, rather than the victim’s reaction. Id. at 1276.

9

The court then concluded, for several reasons, including the fact that the elements of 

non-consent and resistance had been removed from the statute, that the legislature had intended 

to redefine rape consistent with the law of assault and battery--which require only offensive 

touching without reference to a degree of force. Id. As such, the court reasoned that an 

interpretation of the statutory crime of sexual assault to require physical force in addition to that 

entailed in an act of involuntary or unwanted sexual penetration would be fundamentally 

inconsistent with the legislative purpose to eliminate any consideration of whether the victim 

resisted or expressed non-consent and would essentially reintroduce a resistance requirement into 

the sexual assault law. On this basis, the court held that the definition of “physical force” is 

satisfied under the rape statute if the defendant applies any amount of force against another 

person in the absence of what a reasonable person would believe to be affirmative and freelygiven permission to the act of sexual penetration. Id. at 1277. Accord State v. Sedia, 614 So. 2d 

533, 535 (Fla. Dist. Ct. App. 1993) (recognizing that the Florida Legislature had explicitly 

adopted the intrinsic force standard); State v. Chandler, 939 So. 2d 574, 580 (La. Ct. App. 2006) 

 

9 The M.T.S. court noted that the statutory language was in contrast to that in effect in 

Michigan which defined “force or coercion” as, among other things, where the actor overcomes 

the victim through the actual application of physical force or physical violence. See People v. 

Patterson, 410 N.W.2d 733, 735 (Mich. 1987). In Patterson, the Michigan Supreme Court 

considered the sufficiency of the evidence of force or coercion in the prosecution of a sexual 

contact charge against a defendant who had placed his hands on the genital area of a 

seventeen-year-old girl while she was sleeping. The majority concluded that the defendant had 

not used force as required by the statute because there was no evidence of physical overpowering 

and there was no submission. Id. at 740. The dissent criticized the majority as a distortion of the 

legislature’s intent to protect the sexual privacy of persons from the use of force, coercion, or 

other undue advantage. Id. at 747 (Boyle, J. dissenting). Concluding that the statute did not 

require a showing of any extra force, the dissent pointed out that in defining force by measuring 

the degree of resistance by the victim, the majority had effectively reintroduced the resistance 

requirement, when the focus should be on whether the contact was unwanted. Id. at 747-49. 
17

(holding that the aggravated rape statute does not require the defendant’s use of force other than 

the inherent egregious force of the rape itself). 

While generally considered progress in the area of rape law reform, the intrinsic force 

standard essentially renders the issue of force moot, instead shifting the analysis to the issue of 

consent. Fried, supra, at 1297-98. It removes rape from the special category of violent crimes 

where most courts have pigeonholed it, placing it in the group of assaultive crimes where contact 

is measured by its unlawfulness and not by the degree of forcefulness. Id. at 1298. In this sense, 

it is incompatible with Idaho’s statutory scheme, which places significant emphasis on the

element of force--prescribing that it must be sufficient to “overcome” a victim’s resistance and 

which has not been subject to the rape law reforms seen in much of the country. In the case at 

issue here, the nonconsent of the victim was certainly at issue--in the form of whether she 

resisted--especially where the two were adults that had engaged in a prolonged consensual sexual 

relationship and had engaged in consensual sex, in regard to Count I, mere minutes before. 

Most courts with similar language to that found in Idaho’s rape statute, requiring that the 

force or violence “overcome” resistance, have interpreted their statutes to require extrinsic force. 

Quite simply, this terminology implies that force other than that inherent in the proscribed sexual 

act be used to overcome a victim’s resistance--implying that the force must occur before 

penetration. See, e.g., Commonwealth v. Wallace, 922 N.E.2d 834, 839 (Mass. App. Ct. 2010) 

(interpreting rape statute to mean the Commonwealth must prove that the defendant compelled 

the victim to submit by force and against his will). The Idaho Legislature has not undertaken the 

rape law reform that characterizes those states which have departed from the traditional extrinsic 

force standard. Thus, we conclude that the extrinsic force standard is applicable in regard to 

Idaho’s forcible rape statute.

In the conduct charged as Count I here, it is undisputed that the extent of Jones’s physical 

contact with A.S. during the incident, aside from penetration, was coming up from behind her, 

laying on top of her, pushing her down from being propped up on her elbows, thus causing her 

arms to be pinned beneath her by his body weight, and moving her underwear aside. 

Accordingly, we must determine whether Jones exerted the requisite force beyond penetration to 

overcome A.S.’s resistance.

One criticism of the extrinsic force standard is that it is inherently more ambiguous than 

the intrinsic force standard because it requires more evidence and naturally gives rise to the 
18

question of just how much more will suffice. LAFAVE, supra, § 17.3(a). Another commentator 

has noted that because the “distinction between the ‘force’ incidental to the act of intercourse and 

the ‘force’ required to convict a man of rape is one commonly drawn by courts,” it “would seem 

to require the courts to define what additional acts are needed to constitute prohibited rather than 

incidental force.” Estrich, supra, at 1107. As a result, the outcomes are generally all over the 

map, with the degree of force required varying from state to state and generally being a function 

of the facts and circumstances of each case. Fried, supra, at 1300.

For example, on one end of the spectrum is the holding in Berkowitz, 641 A.2d at 1164, 

where the Pennsylvania Supreme Court held that the requisite force had not been shown where 

the defendant had not verbally threatened the victim, the defendant’s hands were not restraining 

her in any manner during the actual penetration, and the weight of his body on top of her was the 

only force applied. On the other hand, numerous jurisdictions have found the requisite force 

under circumstances similar to those in Berkowitz. In Jacques, 536 A.2d at 538, after adopting 

the extrinsic force standard as we discussed above, the Rhode Island Supreme Court applied the 

standard to the facts of the case. There, the defendant who was allegedly performing a photo 

shoot, instructed the victim to walk to a wing-back chair, which was against the wall opposite the 

desk. As she proceeded toward the chair, the defendant told her that he was getting excited by 

her body. The victim testified that at this point she became very frightened. As she arrived at 

the chair, she felt the pressure of the defendant’s chest pushing against her back. This pressure 

caused her to fall into a kneeling position onto the chair facing the wall, after which he sexually 

assaulted her. On appeal, the defendant contended that he had not exerted the requisite force to 

be convicted of first degree sexual assault. The Supreme Court disagreed, noting that “the force 

of [the defendant’s] chest pushing against her caused her to kneel in the chair” such that “[a]s a 

result of [the defendant’s] approach from the rear, [the victim] was forced into a position of 

helplessness” and that “[o]nce [the victim] was in this position, [the defendant] moved to the 

attack.” Id. Accord State v. Lynch, 19 A.3d 51, 57 (R.I. 2011) (holding that uncontroverted 

evidence that a 200-pound middle-aged male defendant had constrained a 120-pound teenager 

with both of his arms-- exerting a degree of pressure such that the victim could not move--while 

performing oral sex on the victim was sufficient evidence of “force”). 
19

In McKnight, 774 P.2d 532, the facts of which are discussed above, the Washington 

Court of Appeals similarly found the defendant had imposed the requisite force. Applying the 

extrinsic force standard to the facts of the case, the court stated:

Reasonable minds can differ as to whether the acts of slowly pushing [the 

victim] to a prone position and then removing her clothes in response to the 

victim’s requests that the advances stop manifest a degree of force greater than 

that which is inherent in the act of intercourse. A reasonable juror could, 

however, infer from the evidence that these were acts of force over and above 

what is necessary to achieve intercourse and that these acts were employed to 

overcome [the victim’s] resistance. The evidence, when taken as a whole and 

viewed in a light most favorable to the prosecution, establishes that the act of 

intercourse was accomplished by the use of force. 

Id. at 536 (emphasis added). Cf. State v. Ritola, 817 P.2d 1390, 1392 (Wash. Ct. App. 1991) 

(distinguishing McKnight and holding there was no forcible compulsion in a case where the 

defendant had reached out and grabbed the victim’s breast because there was no evidence that 

the forced used was more than the force necessary for the sexual act and/or that it was used to 

overcome resistance because he caught the victim by surprise and she had no time to resist). 

While we are not bound by the above-described cases, we find their holdings, excepting 

Berkowitz,

10 to be persuasive. As a whole, we conclude that these jurisdictions have not 

interpreted the extrinsic force standard to require significant impositions of force above, for 

example, the pushing of a victim into a prone position or down on her knees, the removal of the 

victim’s clothes and/or underwear, or the weight of a defendant’s body on top of the victim, 

where they were taken over the victim’s verbal and/or physical resistance and lead to subsequent 

sexual acts. This leads us to conclude that in this case, reasonable minds could have determined 

that Jones utilized more force in addition to that inherent in the sexual act and thus satisfied the 

force element. Jones’s use of his body weight on top of A.S. to push her down from having been 

propped up on her arms and to pin her arms beneath her, rendered her unable to physically resist 

or escape his grasp and overcame her verbal resistance. Like in Jacques, A.S. was “forced into a 

position of helplessness” by Jones, after which he initiated the sexual act--to which A.S. had 

 

10 Berkowitz has been subject to considerable criticism, and as noted above, the 

Pennsylvania legislature responded to the case by criminalizing the act that the court had 

concluded was not covered by the forcible rape statute. 
20

clearly communicated her resistance and non-consent. We conclude that there was sufficient 

evidence to satisfy the resistance and force elements of Count I. 

2. Count II

Jones also contends that the evidence presented was insufficient to support a conviction 

for forcible rape on Count II. Specifically, he contends that there was no evidence of resistance 

because A.S. never even verbally communicated to him that she did not want to engage in sexual 

activity, nor was there evidence that he used force or violence to overcome any resistance. 

Because we conclude that the resistance element is dispositive, we do not reach the issue of force 

in regard to this count.

Even applying Idaho’s resistance standard, which credits verbal resistance as well as 

physical resistance, there was simply no evidence presented at trial that A.S. resisted in any 

manner. A.S. testified she had pretended to be asleep and had not said anything to Jones during 

the entirety of the incident and explained that she believed that if she lay still, he would leave her 

alone. After he was finished, she testified that Jones had “woken her up” and tried to get her to 

go into the bathroom--thus also implying that she had not expressed anything during the incident 

since he believed she was asleep. She also stated that she had not fought Jones because she was 

scared and because “the first time I kept begging and pleading, and he just wouldn’t quit.” 

While we certainly recognize that A.S. testified that Jones’s sexual advances were unwanted, we 

are constrained to apply the statute under which he was charged--which specifically includes a 

resistance requirement. As such, we conclude that there was insufficient evidence to support a 

conviction for Count II. 

B. Admission of Telephone Call Recording 

Jones also contends the district court erred when it overruled his objection and admitted 

an un-redacted version of the telephonic confrontation call recording into evidence. Specifically, 

Jones contends that the court erred in admitting A.S.’s accusation that Jones thinks it is “ok” to 

have intercourse with people who are unconscious, A.S.’s allegation that he had engaged in that 

behavior previously with M.C., and Jones’s admission, in response to A.S.’s prodding, that he 

was already on felony probation for domestic battery based on similar circumstances. He also 

contends it was error to admit his statement that he would have to register as a sex offender 
21

based on A.S.’s allegations and his admission that he had done “bad things” in the past, 

including “hurt[ing] [M.C.]” and committing prior DUI offenses.11 

Jones contends that in failing to redact these statements, the district court “ignored” its 

prior ruling regarding the admissibility of the prior bad acts evidence involving M.C. where it 

had determined the bad acts evidence was not admissible because it demonstrated a mere 

propensity or bad character rather than a common scheme or plan. In addition, Jones argues that 

because the references on the tape to Jones’s prior bad acts were highly prejudicial, and because 

there was no showing of an allowable purpose for admission under Idaho Rule of Evidence 

404(b), the court erred in not redacting the tape to exclude references to prior bad acts.

Jones also contends the court erred in admitting the recording in its entirety when it 

determined that under I.R.E. 403, the potential for undue prejudice did not substantially 

outweigh its probative value. Jones argues that the tape contains “numerous allegations of, and 

statements regarding, uncharged misconduct that were of little or no relevance and were highly 

prejudicial.” 

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, 147 Idaho 49, 52, 205 P.3d 

1185, 1188 (2009). In this case, Jones does not challenge the existence of the prior bad act as an 

 

11 The State contends that Jones’ arguments on appeal fail because he did not object to 

several of the statements below and therefore they are not preserved for appeal. The State also 

contends that Jones’ arguments on appeal fail because the statement that he did object to below 

was not offered for the truth of the matter asserted and therefore did not fall within the purview 

of I.R.E. 404(b). The State’s arguments in this regard are unavailing. First, we conclude that 

defense counsel’s objection to the playing of the unredacted tape was sufficient to encompass an 

objection to all of the portions of the tape in which references to Jones’ past behavior toward 

M.C. was referenced. Second, whether evidence was admitted to prove the truth of the matter 

asserted is irrelevant when analyzing its admissibility under I.R.E. 404(b).
22

established fact. Therefore, we address only the second part of the first tier--the relevancy 

determination. 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).

As Jones points out, earlier in the trial the district court had already ruled that, pursuant to 

I.R.E. 404(b), the State could not introduce the testimony of M.C., who would have testified that 

she had been involved in a long-term sexual relationship with Jones and that it was common for 

him to repeatedly pressure her to have sexual intercourse to the point where she would relent. 

She would have also testified as to two specific incidents that occurred shortly after the couple 

had broken up. In the first, Jones attempted to sexually assault her, but he showed remorse and 

she did not report it. In the second, a few days later, Jones allegedly forced her to engage in 

sexual intercourse, for which he was charged with forcible rape. It resulted in a mistrial and then 

his eventual plea of guilty to felony domestic battery. The State argued that these events were 

admissible as to the issues of consent (apparently to show that A.S. did not consent to the acts), 

an absence of mistake on Jones’s part (in thinking that the instances were consensual), and a 

common scheme or plan of exploitation where Jones follows a “common tactic” of gaining trust 

in intimate relationships, using this trust to engage in sexual assaults, and then shows remorse. 

Having previously expressed skepticism that the prior bad acts established a unique pattern of 

behavior, the district court ruled that the State could not present the testimony of M.C. in its 

case-in-chief because while there were similarities between the incidents, the court was unsure 

that the testimony was relevant to facts at issue in the current trial. 

Given this conclusion, we are unable to account for why the district court did not exclude 

the references to this prior misconduct in the tape on the basis of its prior I.R.E. 404(b) 

ruling--especially where the allegations at issue were of exactly the same nature as those it had 
23

excluded under its prior ruling. We need not address the merits of this determination, however, 

because the court clearly erred in its finding as to the second tier in the analysis--the 

determination of whether the probative value of the evidence is substantially outweighed by 

unfair prejudice. In this regard, the court stated:

I don’t think it should be redacted. In the first place, he’s not--as far as I 

know . . . this is a rape allegation that was without her consent. I don’t believe 

this is a rape allegation that she was unconscious at the time. . . . I don’t see how 

this is prejudicial. And clearly you could have made this motion a lot earlier. But 

I don’t see that this is that prejudicial.

Furthermore, whatever relevancy it might have it certainly is not 

outweighed by any unfair prejudice to your client. I mean, as far as I know this is 

not a rape case about, you know, over the course of their relationship he was 

having sex with her while she was asleep. 

Having listened to the tape, we conclude that the district court’s conclusion that the 

prejudicial effect of the specific portion of the tape at issue did not substantially outweigh its 

probative value, and thus need not be redacted, was an abuse of discretion. Initially, we note that 

the court did not make an explicit finding regarding the evidence’s probative value, but it did 

reference the fact that the allegation in this case went to the issue of sexual intercourse without 

consent while the prior bad act referenced in the call went to sexual intercourse while the victim 

was unconscious--and therefore its prejudicial effect was diminished. We fail to see, however, 

how this fact mitigates against prejudice. To the contrary, it demonstrates a lack of any 

probative value as actual circumstances in the case were so dissimilar. The evidence is also 

significantly prejudicial to the defendant. An assertion, and Jones’s admission, that he had 

sexual intercourse with M.C. while she was sleeping, that this was a “bad thing” that he had 

done, and that he was on felony probation for such an act, is a classic example of evidence which 

poses the danger that it will stir the passion of the jury as to sweep them beyond a rational 

consideration of guilt or innocence of the crime on trial. See State v. Stoddard, 105 Idaho 533, 

537, 670 P.2d 1318, 1322 (Ct. App. 1983). Therefore, we cannot say that the district court 

reached its conclusion by an exercise of reason and we conclude that its finding in this regard 

was an abuse of discretion. 

However, error is not reversible unless it is prejudicial. Stoddard, 105 Idaho at 171, 667 

P.2d at 274. With limited exceptions, even constitutional error is not necessarily prejudicial 

error. Id. Thus, we examine whether the alleged error complained of in the present case was 
24

harmless. See State v. Lopez, 141 Idaho 575, 578, 114 P.3d 133, 136 (Ct. App. 2005). To hold 

an error harmless, this Court must declare a belief, beyond a reasonable doubt, that there was no 

reasonable possibility that the evidence complained of contributed to the conviction. State v. 

Perry, 150 Idaho 209, 221, 245 P.3d 961, 973 (2010); State v. Sheldon, 145 Idaho 225, 230, 178 

P.3d 28, 33 (2008).

After a review of the record, we conclude that the error was harmless as to Count I. As 

we recognized above, the evidence was certainly prejudicial, but significantly more so 

concerning Count II. This is so because the facts of Count II involve A.S. “pretending” to be 

asleep and therefore, is more like the bad acts referred to in the tape than the circumstances 

surrounding Count I, which unequivocally occurred while A.S. was alert and verbally resisting. 

In addition, the evidence of Jones’s guilt on Count I was compelling, especially taking 

into account Jones’s repeated admissible statements showing his consciousness of guilt. 

Specifically, in the recorded conversation, when faced with A.S.’s accusations regarding the first 

incident, Jones repeatedly failed to deny that he had proceeded in spite of A.S.’s indications that 

she did not want to engage in intercourse. For example, after the two discussed the incident 

giving rise to Count II, with A.S. insisting that she was awake, she asked why Jones would “go 

there again,” presumably referencing the first incident, to which he responded “I don’t know. 

I’m not sure.” She then indicated that he had sent her “all those text messages . . . promising me 

it wouldn’t happen again” following the first incident, to which he responded, “I know, I’m 

sorry. It’s just, I love being with you.” In addition, A.S. stated that she had told him “no” during 

the first incident and then asked him why he had still continued to which he answered, “I don’t 

know. . . . I feel bad about it.” When A.S. said, “You knew I didn’t want to go there. I told you I 

didn’t want to go there. Why would you do that?” he responded, “I don’t know. I’m frustrated 

that I can’t be with you I guess.” A.S. also indicated that she had “begged” and “pleaded” with 

Jones to stop during the first incident, a point which he did not refute. 

As Jones points out, A.S.’s credibility was subject to some doubt given that she had 

withheld information from law enforcement and had recanted several times. However, defense 

counsel thoroughly cross-examined her regarding these discrepancies, which essentially 

encompassed the entirety of his defense. On the other hand, the State presented A.S.’s detailed 

testimony that she had resisted Jones’s advances and that he had overcome that resistance by 

force, as well as the phone call recording which unequivocally indicated that Jones had not 
25

denied having done so when confronted. In light of this largely unrefuted evidence, we conclude 

that the inadmissible references on the tape, while prejudicial, did not contribute in any 

meaningful manner to Jones’s conviction of Count I. Accordingly, we conclude that the 

erroneous admission of Rule 404(b) evidence on the tape was harmless error. 

III.

CONCLUSION

We conclude there was sufficient evidence to convict Jones of Count I because there was 

evidence by which a reasonable trier of fact could find that A.S. offered “resistance” and that 

Jones overcame this resistance by “force or violence.” However, there was insufficient evidence 

to find that A.S. resisted in regard to Count II and we vacate this conviction. Further, while the 

district court erred in admitting prior bad acts evidence in a recording played for the jury, the 

error was harmless because we are convinced beyond a reasonable doubt that there is no 

reasonable possibility that the complained of statements contributed to Jones’s conviction of 

Count I. Accordingly, we affirm Jones’s conviction as to Count I. 

Judge LANSING and Judge MELANSON CONCUR.