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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 32029

STATE OF IDAHO,

Plaintiff-Respondent,

v.

THEODORE J. KREMER, III,

Defendant-Appellant.

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2007 Opinion No. 11

Filed: March 8, 2007

Stephen W. Kenyon, Clerk

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

County. Hon. Deborah A. Bail, District Judge.

Judgment of conviction for lewd conduct with a minor under sixteen and for

intimidating a witness, affirmed.

Greg S. Silvey, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney

General, Boise, for respondent. Lori A. Fleming argued.

______________________________________________

GUTIERREZ, Judge

Theodore J. Kremer, III appeals from the judgment of conviction entered upon jury

verdicts finding him guilty of lewd conduct with a minor under sixteen and for intimidating a

witness. Specifically, Kremer contends the district court erred by admitting evidence of prior

bad acts and alternatively argues that it was error not to allow evidence regarding the disposition

of criminal charges stemming from the prior bad acts. We affirm.

I.

FACTS AND PROCEDURE

The facts underlying the charge against Kremer were presented by the state at his trial as

follows: In October 2004, eleven-year-old H.S. spent the night at the Kremer house as a guest of

Kremer’s daughter. At approximately one o’clock the next morning, H.S. woke up to Kremer

kneeling on the family room floor next to the futon where she and Kremer’s daughter were

sleeping. He placed his hand on H.S.’s hand and while she rolled over and pretended to be
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asleep, he lifted the covers and put his hands under her pajama bottoms and underwear where he

proceeded to rub her vagina and buttocks. This continued for approximately ten to fifteen

minutes before he left the room. H.S. left the house the next morning and immediately told her

mother about the incident. She was taken to the hospital and the abuse was reported to the

police.

Kremer was eventually charged by grand jury indictment with lewd conduct with a minor

under sixteen, I.C. § 18-1508, and with intimidating a witness, I.C. § 18-2604.1 Prior to trial, the

state provided Kremer notice, pursuant to Idaho Rule of Evidence 404(b), of its intent to

introduce the testimony of A.C. and J.L., who would testify that Kremer committed sexual

misconduct against them while they were minors living in Tennessee in 1993.

At trial during voir dire, counsel for Kremer told the jury panel that Kremer had been

charged in Tennessee with sexual touching of two minors, that one count had been dismissed,

and that the other was reduced from a felony to a misdemeanor. The state objected, but the

district court ultimately allowed defense counsel some leeway in presenting this information to

the jury panel.

Prior to the state’s opening statement, the parties stipulated to the admission of various

exhibits, including Defense Exhibit E which was referred to as “the certified court documents

from Tennessee.” The court admitted the stipulated exhibits “subject to being stricken” and

informed the parties they were free to refer to them in opening statements. No further mention

was made of the disposition of the Tennessee charges until defense counsel’s opening statement,

given after the state had rested and both J.L. and A.C. had testified. Counsel told the jury that

the defense would introduce Tennessee court documents showing the count involving J.L.,

originally charged as a felony child rape, was dismissed and the count involving A.C., also

originally charged as a felony child rape, was processed by the courts in July of 1994 as a

misdemeanor, child battery. He further stated:

And Mr. Kremer upon advice of counsel pled guilty, he will tell you, to

something he did not do in that case just to get it behind him because the

 

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 The intimidating a witness charge stemmed from an incident, immediately after Kremer

was interviewed by the police regarding H.S.’s allegations, where Kremer contacted H.S.’s

father after having explicitly been told by the investigating officer to have no contact with H.S.

or her family. H.S.’s father taped the phone conversation where Kremer is heard attempting to

persuade the family not to pursue charges.
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prosecutor, despite the evidence you’ve heard from [A.C.], offered probation. A

probation incidentally enough from which Mr. Kremer was released less than

three months later.

Immediately following the defense’s opening statement, the state requested the court’s

permission to take a witness, who was flying back to Tennessee shortly, out of order to rebut the

inference that the Tennessee charge was reduced because it had no merit. The court declined,

but ruled sua sponte that evidence relating to the disposition of the Tennessee sexual misconduct

charges was inadmissible. Accordingly, the court struck Defense Exhibit E and instructed the

jury that “[n]o evidence was presented to you about the outcome of charges in Tennessee

because it is not relevant to the issues before you and should not be considered or discussed by

you in any way.”

The jury found Kremer guilty of both charges, and he now appeals.

II.

ANALYSIS

A. Admission of I.R.E. 404(b) Evidence

Ordinarily, evidence of a defendant’s other crimes, wrongs, or acts is not admissible to

prove the defendant’s character in order to show the defendant acted in conformity with that

character. I.R.E. 404(b); State v. Moore, 120 Idaho 743, 745, 819 P.2d 1143, 1145 (1991); State

v. Martin, 118 Idaho 334, 336, 796 P.2d 1007, 1009 (1990); 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 other purposes, including proof of

motive, opportunity, intent, preparation, identity, or a general plan. I.R.E. 404(b); Moore, 120

Idaho at 745, 819 P.2d at 1145; State v. Paradis, 106 Idaho 117, 122, 676 P.2d 31, 36 (1984);

State v. Wrenn, 99 Idaho 506, 510, 584 P.2d 1231, 1235 (1978); State v. Avila, 137 Idaho 410,

412, 49 P.3d 1260, 1262 (Ct. App. 2002).

To determine the admissibility of other act evidence, the trial court is to engage in a twotiered analysis. First it must determine whether the evidence is relevant for a purpose other than

propensity. State v. Zimmerman, 121 Idaho 971, 977-78, 829 P.2d 861, 867-68 (1992); State v.

Byington, 132 Idaho 597, 605, 977 P.2d 211, 219 (Ct. App. 1998). Second, if the evidence is

deemed relevant for an appropriate purpose, the court must determine whether the probative

value of the evidence is substantially outweighed by the danger of unfair prejudice. I.R.E. 403;

Zimmerman, 121 Idaho at 977-78, 829 P.2d at 867-68; Byington, 132 Idaho at 605, 977 P.2d at
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219. We exercise free review as to the district court’s relevancy determination; however, in

regards to its balancing of the prejudicial effect and probative nature of the evidence, we will

conclude error occurred only upon finding an abuse of discretion. State v. LaBelle, 126 Idaho

564, 567, 887 P.2d 1071, 1074 (1995).

In admitting testimony regarding the Tennessee incidents, the district court found the

evidence was relevant, explaining that:

In the instant case, it is relevant and probative that there appears to be an

alleged general plan to sexually exploit young females who are in the defendant’s

home to visit his daughter. The type of sexual misconduct is generally the same.

The acts occur when others are present in the home, including when his daughter

is nearby. The fact that abuse occurs in the vicinity of others is unusual. There is

clear relevance to the existence of a general plan and also to an absence of

mistake. 

The court then examined whether the risk of prejudice outweighed the probative value of the

evidence and concluded, noting the similarity of the general plan of abuse (“repeatedly fondling

girls who are spending time in his home because they are visiting his daughter and with others

actually in the same vicinity while the abuse occurs”), the evidence should not be excluded on

this ground.

Kremer challenges the district court’s relevancy determination, arguing the prior and

current incidents do not constitute a plan, thus rendering the prior bad acts evidence irrelevant to

any allowable purpose of admission. He relies largely on Justice Johnson’s dissent in Moore

which took issue with the majority’s opinion that prior instances of abuse of young girls in the

defendant’s household were admissible as relevant to, among other things shown, a common

plan of abuse. Specifically, Kremer argues that two incidents eleven years apart do not

constitute a plan. His case is distinguishable, he contends, from cases where “remote” sexual

misconduct has been admitted in Idaho under the plan exception of I.R.E. 404(b) as those cases

generally concern multiple prior bad acts spread over time that constitute a series or chain of

events. But, where decidedly dated prior acts evidence is at issue, the caselaw requires a

defendant to have had limited opportunity to commit the offense. Both these scenarios, he

concludes, are absent in the instant case. However, it is well settled in Idaho that when a

defendant is charged with lewd conduct with or sexual abuse of a minor, testimony of the

defendant’s prior sexual misconduct may be admissible if it shows a “general plan to exploit and

sexually abuse an identifiable group of young female victims.”
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In State v. Phillips, 123 Idaho 178, 845 P.2d 1211 (1993), the defendant had been

charged with sexual abuse of his niece who was a friend of his daughter, and our Supreme Court,

without dwelling on how much time passed between past acts and the abuse at issue, affirmed

the admission of testimony by three women who were friends of the defendant’s older daughters

and whom the defendant allegedly sexually abused when they were minors. The key to the

court’s conclusion was that the incidents considered together demonstrated the defendant’s

“general plan to exploit and sexually abuse an identifiable group of young female victims,”

quoting Moore, 120 Idaho at 745, 819 P.2d at 1145.

In State v. Hoots, 131 Idaho 592, 961 P.2d 1195 (1998), the Supreme Court examined the

similarities in the abuse as alleged by the victim in the case compared to that alleged by another

woman who claimed to have been abused by the defendant when she was a minor. The current

victim was fourteen years old when she was abused by the defendant. A friend of the

defendant’s daughter, she was often at the defendant’s house and the abuses took place while the

defendant’s wife and children were not home or were asleep. In comparison, the victim of the

alleged “other acts” abuse testified she was fifteen years old when the defendant engaged in

sexual misconduct with her. This previous victim was a friend of the defendant’s son and

similarly testified that the abuse occurred at the defendant’s home while his wife and children

were absent. Upon these facts, the Court was satisfied there were sufficient similarities between

the defendant’s misconduct with both victims to demonstrate a general plan by him to exploit

and sexually abuse minor females who were friends of his children and visited his home.

This Court addressed similar issues in State v. McGuire, 135 Idaho 535, 20 P.3d 719 (Ct.

App. 2001) and in Byington. In McGuire, the defendant had been tried for sexual abuse of his

underage daughter, and we approved the admission of testimony from the defendant’s three adult

daughters who claimed that as minors, they too were sexually abused by the defendant. In

finding there was a common scheme or plan, we focused on the fact that while the abuse was

separated by a generation, the victims largely testified to similar circumstances surrounding their

abuse, including that each incident of misconduct was committed by the defendant against his

own female children while they were minors residing in his house. Similarly, in Byington, this

Court adopted the district court’s reasoning that the prior act accuser’s testimony was almost

identical with respect to the ways the defendant treated the current accusers. 132 Idaho at 607,

977 P.2d at 221. The prior act accuser and the alleged current victims had all testified as to
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similar grooming leading to the molestation which included befriending, rides, food, money,

movies and gifts. Thus, we concluded, the similarities in the defendant’s behavior patterns and

conduct made the prior acts relevant to a material and disputed issue concerning the crimes

charged.

 Notably, a lapse of time between incidents, standing alone, does not necessarily make the

testimony inadmissible. See State v. Law, 136 Idaho 721, 726, 39 P.3d 661, 666 (Ct. App. 2002).

In Moore, 120 Idaho at 746, 819 P.2d at 1146, our Supreme Court stated that the issue of

remoteness generally goes to the weight of the evidence, as opposed to its admissibility. See also

Byington, 132 Idaho at 607, 977 P.2d at 221. As this Court in Law noted:

“Remoteness and similarity must be considered together because the two concepts

are so closely related . . . a prior bad act, despite its remoteness, may still be

relevant if it is strikingly similar to the charged offense. Conversely, less

similarity may be required where the prior act is closer in time to the charged

incident.”

Law, 136 Idaho at 727, 39 P.3d at 667. (citation omitted). Thus in numerous cases, Idaho courts

have held that accusations of prior sexual misconduct allegedly occurring significantly prior to

the present charges were still relevant, both where there was evidence the defendant had not had

the opportunity to continue the abuse in the interim as well as absent such evidence. See e.g.,

LaBelle, 126 Idaho at 568, 887 P.2d at 1075 (holding, despite several cessations of abuse, that

the testimony of two alleged prior victims was relevant, especially given the similarities with the

charged conduct); Moore, 120 Idaho at 747, 819 P.2d at 1147 (holding that gaps of

approximately six and three years do not destroy admissibility where the attenuation was

mitigated by the defendant’s lack of opportunity during the interim periods); Law, 136 Idaho at

727, 39 P.3d at 667 (deciding that evidence of prior sexual abuse, occurring approximately

twenty years earlier, was relevant due to the distinct similarities between the incidents);

McGuire, 135 Idaho at 539-40, 20 P.3d at 723-24 (finding prior acts occurring eighteen to

twenty-three years prior to be relevant where there existed distinct similarities and the defendant

had limited opportunity to enact his plan of abuse during the gap).

Here, there were several distinct similarities between the Tennessee incidents and the

incident in Idaho. There was unequivocally an “identifiable group of young female victims”:

the friends of Kremer’s daughters. Also, the victims all testified the abuse occurred in the

defendant’s house while his wife and children were home--a fact that, as the trial judge noted, is

unusual. The evidence was presented that Kremer committed sexual abuse in a similar manner,
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against similarly situated victims on multiple occasions. Consequently, despite the eleven-year

period without any known allegations of abuse by Kremer, we conclude testimony regarding

those past acts was relevant. And while the state was allowed to present the testimony of A.C.

and J.L., the jury was fully aware the alleged incidents had occurred more than a decade before

and were able to take this into account when assessing the weight to give the testimony.

Furthermore, in addition to being relevant to expose a general plan of abuse, Idaho courts

have also found such evidence relevant as to the corroboration of minor victims in sex crime

cases. Hoots, 131 Idaho at 594, 961 P.2d at 1197; Moore, 120 Idaho at 745, 819 P.2d at 1145.

Due to particular proof problems in these cases, the Idaho Supreme Court considers such

corroborating evidence especially relevant. See State v. Tolman, 121 Idaho 899, 904, 828 P.2d

1304, 1309 (1992); Moore, 120 Idaho at 745, 819 P.2d at 1145. By nature, these crimes usually

have only two witnesses, the alleged victim and the defendant. Consequently, the determination

of the case often rests upon establishing that the victim’s testimony is more credible than that of

the alleged perpetrator. State v. Cross, 132 Idaho 667, 670-71, 978 P.2d 227, 230-31 (1999);

McGuire, 135 Idaho at 539, 20 P.3d at 723; State v. Spor, 134 Idaho 315, 319, 1 P.3d 816, 820

(Ct. App. 2000). As our Supreme Court noted in Tolman, 121 Idaho at 905, 828 P.2d at 1310, in

these cases even a minimal defense requires the alleged victim be accused of “falsehood, spite,

or delusion.” (Citation omitted). Without any corroboration, “the incidents charged in the

information possess only the degree of believability as would naturally attach to the testimony of

[a child] counterbalanced by the testimony of the alleged perpetrator . . . .” Id. Thus, when

testimony regarding the events at issue is considered in conjunction with testimony elicited as to

prior conduct, a jury is better able to compare “patterns and methods, details and generalities,

consistencies and discrepancies, and thereby make a more meaningful and accurate assessment

of the parties’ credibility.” Id.

Here, the crux of Kremer’s defense was that H.S.’s memory of the alleged abuse was

mistaken; thus, H.S.’s credibility was squarely at issue. See Phillips, 123 Idaho at 181, 845 P.2d

at 1214 (noting that since the defendant’s defense theory was that the alleged sexual abuse never

occurred, the credibility of the victim was placed directly in issue). The testimony of A.C. and

J.L. lent credibility to H.S.’s account of abuse--both that it actually occurred as well as how it

occurred because both A.C. and J.L. testified that Kremer abused them as children and that it
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occurred under similar circumstances as H.S. recounted. Therefore, the testimony of Kremer’s

prior bad acts was admissible for corroboration purposes.

Finally, we find no abuse of discretion in the trial court’s conclusion pursuant to I.R.E.

403. The court recognized the potential prejudicial effect of the evidence, but also noted what it

believed to be its high probative value, given the similarities between the incidents. The district

court did not err in admitting evidence of Kremer’s prior bad acts.

B. Exclusion of Disposition Evidence of Prior Charges

Having found the testimony regarding the alleged abuse of two young girls in Tennessee

relevant and otherwise admissible, we consider whether the district court’s subsequent exclusion

of evidence concerning the ultimate disposition of the charges stemming from the Tennessee

incidents was appropriate. Among other reasons for excluding this evidence, the district court

deemed it irrelevant. Kremer argues that after the district court allowed testimony from the

witnesses regarding his alleged sexual abuse of them eleven years prior, the court erred in

refusing to allow him to present the jury with evidence that of the two felony counts stemming

from the allegations, one was dismissed and the other reduced to a misdemeanor. Specifically,

he argues the evidence is relevant, that the court erred in sua sponte striking it, and that its

exclusion was a violation of his Sixth Amendment rights.

 In terms of relevance, Kremer argues that evidence of the dismissal and reduction of the

charges has a tendency to make it less probable that the Tennessee acts actually occurred.2

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other words, the purpose of introducing the evidence was to evoke the inference that the

Tennessee prosecutor viewed the cases as weak, and ultimately that the two counts were based

on false accusations.

The Idaho Supreme Court addressed a similar issue in Tolman. There, the defendant had

been charged with sexual misconduct involving several minors. At trial, the district court

admitted evidence of prior sexual conduct between the victims and Tolman under I.R.E. 404(b).

On appeal, Tolman argued the lower court had then erred in refusing to allow evidence that he

had recently been acquitted of prior charges brought by one of the victims in the present case,

 

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 Idaho Rule of Evidence 401 defines relevant evidence as that “having any tendency to

make the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.”
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contending he was entitled to present the evidence since it would tend to dispel the adverse

impact of the court’s decision to admit evidence of prior uncharged acts of sexual misconduct.

In excluding the evidence, the district court had stated:

[The] issue of credibility is a matter for the jury to determine from all of the

various factors that relate to credibility. And the jury may have decided the case

for any number of reasons which had absolutely nothing to do with that particular

witness’s credibility. They may have decided that the witness was truthful, but

that some other element which that witness couldn’t testify to was not present.

Since the court was not present at the trial, I’m in no position to second guess the

jury on that.

Tolman, 121 Idaho at 906, 828 P.2d at 1311. The Supreme Court in affirming agreed with this

reasoning, noting that in State v. Schwartzmiller, 107 Idaho 89, 685 P.2d 830 (1984), it had

recognized that a not guilty verdict alone does not establish that charges were based on false

accusations since a jury cannot convict unless it finds beyond a reasonable doubt that the

defendant was guilty. Tolman, 121 Idaho at 906, 828 P.2d at 1311, (citing Schwartzmiller, 107

Idaho at 92, 685 P.2d at 833). Thus, the only way such evidence is relevant to a victim’s

credibility (that an incident took place) is if the allegations are “demonstrably false,” a

conclusion that an acquittal alone does not establish. See Tolman, 121 Idaho at 906, 828 P.2d at

1311.

We conclude the crux of this reasoning is applicable to the case here, despite the fact the

instant case involves a dismissal and reduction of charges as opposed to a jury acquittal. As the

district court recognized, there are numerous possible reasons a charge is not pursued--just as

there are numerous possible reasons a jury may acquit. And while the falsity of accusations may

be one of the reasons applicable in both situations, it is not the sole reason (or necessarily even

the most likely). We therefore agree with the district court that the dismissal of one count and

the reduction of the other count is not relevant--it makes it no more or less likely the two

witnesses were or were not subjected to sexual misconduct by Kremer.

Kremer contends that even assuming the evidence was not admissible, the district court

nevertheless committed an abuse of discretion by striking “evidence that forms a basis of the

defense in the middle of trial after the defense had discussed it in its opening statement”

subsequent to admitting it pursuant to a stipulation by the parties. However, a review of the

record shows the trial judge never was asked to rule on the admissibility of this evidence prior to
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trial.3

 Rather, upon being informed the parties wished to stipulate to all exhibits, the trial court

agreed in general to their admittance, subject to being stricken. Kremer provides no authority for

his proposition that a court’s decision to strike evidence it had not specifically been asked to rule

on, after admitting it subject to later being stricken and then determining its irrelevance in

context, is an abuse of discretion. Having properly concluded that the evidence was irrelevant,

the court was not required to nevertheless allow its presentation to the jury.

Finally, Kremer argues that the court’s exclusion of this evidence was a violation of his

Sixth Amendment rights to confront the witnesses against him and to present a defense.

However, a defendant has no constitutional right to present evidence that is not relevant. State v.

Peite, 122 Idaho 809, 814, 839 P.2d 1223, 1228 (Ct. App. 1992). Because we have concluded

that the disposition of the Tennessee charges is not relevant, Kremer’s constitutional claim has

no merit.

III.

CONCLUSION

The district court did not err in admitting evidence, under I.R.E. 404(b), of Kremer’s

sexual abuse of two young girls eleven years earlier. Further, the court was also correct in

excluding evidence regarding the disposition of the charges stemming from the prior abuse.

Accordingly, we affirm Kremer’s judgment of conviction for lewd conduct with a minor under

sixteen and for intimidating a witness.

Chief Judge PERRY and Judge LANSING CONCUR.

 

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 Subsequent to oral argument, appellant moved to augment the record with the

“Defendant’s Brief in Support of Motion in Limine to Preclude Evidence at Trial” which he

contends showed that the defendant gave notice of his intent to present evidence of the

disposition of the Tennessee charges should the court admit evidence of the incidents. The

motion includes a passing reference, at best, that such evidence may be offered, and does not

show that the judge was asked to rule on its admissibility.