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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 42278

STATE OF IDAHO,

Plaintiff-Respondent,

v.

WILLIAM LEE COOK, III,

Defendant-Appellant.

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2016 Unpublished Opinion No. 319

Filed: January 11, 2016

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

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

Teton County. Hon. Gregory W. Moeller, District Judge. 

Judgment of conviction, affirmed.

Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

HUSKEY, Judge

William Lee Cook III appeals from his judgment of conviction for sexual abuse of a 

minor child under sixteen years of age. Cook alleges he was denied his right to due process and 

a fair trial when the district court allowed a statutorily unqualified juror to sit on the jury. He 

also argues the district court erred in excluding relevant DNA evidence and testimony. For the 

reasons set forth below, we affirm.

I. 

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Cook was charged with sexual abuse of a minor after E.K. disclosed Cook touched her 

genitals and buttocks. E.K. reported that she stayed overnight at her aunt’s home, and during the 

evening she went into Cook’s room to play video games and watch television with him. E.K. fell 

asleep on Cook’s bed; and when she awoke, Cook was touching her vagina and buttocks while 

he masturbated. E.K. was fourteen years of age at the time of the incident. Cook was convicted 
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of the offense following a jury trial. On appeal, he alleges the district court committed 

fundamental error during the jury selection process and abused its discretion in excluding 

relevant evidence. 

During the jury selection process, a prospective juror informed the court she had moved 

away from Teton County after submitting her juror questionnaire. The juror informed the court 

she had lived in another county for “a couple months,” and she intended to stay in that county, 

but she had not changed her vehicle registration, driver’s license, or voter registration from Teton 

County to the new county. The juror told the court she was still a legal resident of Teton County. 

Neither attorney questioned the juror about her residence nor her ability to sit on a jury in Teton 

County, and neither sought to strike her from the panel for cause nor by use of a peremptory 

challenge. This juror was selected for the panel, and she remained on the jury throughout the 

trial and deliberations. Cook appeals the court’s failure to remove this juror from the jury pool 

upon learning that she no longer lived in Teton County.

During the pretrial motion in limine heard the morning of trial, the State sought to 

preclude Cook from admitting evidence about forensic testing that was conducted on a pair of 

pajamas found in his home. During the investigation, E.K. informed investigators that semen 

would likely be found on a pair of pajama pants worn during the incident. Approximately one

week after the incident, a pair of pajama pants was recovered from Cook’s home. Cook resided 

with his mother and stepfather, and DNA samples were obtained from all three residents for 

purposes of DNA testing. An initial forensic test identified semen on the pants, but further DNA 

testing failed to identify the sample as containing DNA from E.K., Cook, or the other residents 

of the home. Prior to trial, Cook filed an exhibit list that included the report from the initial 

forensic testing and the DNA report, however, Cook did not disclose any witnesses qualified to 

testify about the content of the reports. The State sought to exclude the reports and any 

testimony about the reports, pursuant to Idaho Rules of Evidence 401, 402, 403, 602, 701, 702, 

and 901. Cook argued this evidence was relevant to support his theory of defense because the 

absence of his DNA on the pajama pants would contradict E.K.’s testimony. Cook conceded he 

had not disclosed an expert witness, but had intended to have one of the investigating law 

enforcement officers discuss the content of the reports. The district court granted the State’s 

motion to exclude this evidence and any testimony regarding forensic testing, because Cook

would not have expert testimony from a witness competent to testify about the forensic testing 
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and results. The district court further found that even if an expert witness was not required by 

I.R.E. 702, the evidence would not be relevant because it was neither inculpatory nor 

exculpatory, given the lack of forensic findings to link the pajamas to Cook, the victim, or the 

other residents of the home. 

During trial, the prosecutor asked the investigating officer what investigatory steps he 

had taken, and unsolicited, the witness stated he had obtained DNA samples from Cook’s family 

members. Following Cook’s objection and argument outside the presence of the jury, the court 

determined it would not allow any testimony or evidence about the DNA testing. The parties 

consented to a limiting instruction, which informed the jury not to consider any testimony about 

DNA testing. Cook appeals the exclusion of the forensic reports and testimony that would have 

supported his theory of defense and discredited E.K.’s testimony.

II. 

ANALYSIS

Cook raises two issues on appeal. The first issue is whether the district court committed 

fundamental error and violated his constitutional rights to due process and a fair trial by allowing 

a statutorily unqualified juror to sit on the jury. The second issue is whether the district court 

abused its discretion in excluding relevant DNA evidence. 

A. Statutorily Unqualified Juror

For the first time on appeal, Cook argues the district court committed fundamental error 

by failing to remove a statutorily unqualified juror from the jury panel. Generally, issues not 

raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 

195, 824 P.2d 123, 126 (1992). Idaho decisional law, however, has long allowed appellate 

courts to consider a claim of error to which no objection was made below if the issue presented 

rises to the level of fundamental error. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 

(2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971). In State v. Perry, 150 

Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court held an appellate court should reverse 

an unobjected-to error when the defendant persuades the court that the alleged error: (1) violates 

one or more of the defendant’s unwaived constitutional rights; (2) is clear or obvious without the 

need for reference to any additional information not contained in the appellate record; and 

(3) affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978. Cook argues the 

inclusion of the statutorily unqualified juror on the jury panel violated his unwaived 
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constitutional rights to due process and a fair trial, and therefore, he has met the first prong of the 

Perry analysis.

The Sixth Amendment to the United States Constitution, made applicable to the states 

through the Due Process Clause of the Fourteenth Amendment, requires “in all criminal 

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of 

the State and district wherein the crime shall have been committed . . .” U.S. CONST. amend VI. 

Further, the Idaho Constitution establishes “the right of trial by jury shall remain inviolate.”

IDAHO CONST. art. I, § 7. Therefore, a defendant’s constitutional rights are implicated where the 

defendant is denied impartial jurors. State v. Moses, 156 Idaho 855, 862, 332 P.3d 767, 774 

(2014). Under the Sixth Amendment, the mere statutory disqualification of a juror, without 

more, does not affect the impartial nature of the juror. See, e.g., United States v. Silverman, 449 

F.2d 1341, 1344 (2d Cir. 1971). The United States Supreme Court has stated that in a case 

where a statutorily or otherwise unqualified juror sits as a juror in a case, the statutory or other 

type of disqualification alone is not enough to implicate constitutional rights. Instead, it is “only 

those reasons that affect a juror’s impartiality [that] can truly be said to affect the fairness of a 

trial.” McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984). In 

addition, the Ninth Circuit Court of Appeals has held the inclusion of a statutorily disqualified or 

unqualified juror on a panel will not result in a new trial absent a showing that the “juror’s 

participation in the case results in ‘actual bias’ to one or more of the parties.” Coughlin v. 

Tailhook Ass’n, 112 F.3d 1052, 1058-59 (9th Cir. 1997). See also Bennett v. Lockhart, 39 F.3d 

848, 853 (8th Cir. 1994) (“it is incumbent upon the [aggrieved person] to clearly demonstrate 

that the juror’s lack of qualifications presented actual bias or prejudice, affecting the juror’s 

impartiality and [affecting] the fairness of the trial”). We hold a challenge to a jury verdict based 

on a statutorily disqualified or unqualified juror requires a showing that the juror acted with bias 

or prejudice and consequently, denied the defendant the guaranteed right to a fair trial and an 

impartial jury.

Here, the sole basis upon which Cook challenges the juror is the representations to the 

court that she no longer lived in Teton County. However, upon questioning, the juror also 

represented that all indicators of her residence (vehicle registration, driver’s license, and voter 

registration) had not changed from Teton County. See Idaho Code § 2-206(1). Even if we deem 

this juror to be statutorily disqualified on the basis of residence, there are no facts in the record 
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before us to indicate this juror was not impartial, or that her inclusion on the jury panel impacted 

the impartiality of the other jurors. Cook has failed to show how the inclusion of this juror on 

the jury panel violated his constitutional rights to due process and a fair trial. Because Cook has 

not met the first prong of the Perry analysis we will not address his arguments as to the other 

prongs of the analysis, and Cook is not entitled to relief under the fundamental error doctrine.

B. DNA Evidence

At issue here is whether the district court abused its discretion in excluding the forensic 

testing reports and testimony about the absence of Cook’s DNA on the pajama pants. The 

district court excluded the evidence because Cook could not lay an adequate foundation, and the 

evidence was not relevant. We consider each of these findings in turn.

1. Lack of foundation

The decision whether to admit evidence at trial is generally within the province of the 

trial court. A trial court’s determination that evidence is supported by a proper foundation is 

reviewed for an abuse of discretion. State v. Gilpin, 132 Idaho 643, 646, 977 P.2d 905, 908 (Ct. 

App. 1999). Therefore, a trial court’s determination as to the admission of evidence at trial will 

only be reversed where there has been an abuse of that discretion. State v. Zimmerman, 121 

Idaho 971, 973-74, 829 P.2d 861, 863-64 (1992). 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). 

Idaho Rule of Evidence 702 governs the admission of expert testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact 

to understand the evidence or to determine a fact in issue, a witness qualified as 

an expert by knowledge, skill, experience, training, or education, may testify 

thereto in the form of an opinion or otherwise.

Expert testimony is generally admissible if evidence is beyond the common experience of 

most jurors and the jurors would be assisted by such testimony. State v. Hester, 114 Idaho 688, 

694, 760 P.2d 27, 33 (1988). We have held the admission of DNA evidence in a rape case is 

governed by I.R.E. 702, and we see no reason why that decision would not apply to a case 

involving allegations of sexual abuse of a minor in which DNA evidence is at issue. See State v. 
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Amerson, 129 Idaho 395, 402, 925 P.2d 399, 406 (Ct. App. 1996). See also State v. Burrow, 142 

Idaho 328, 331, 127 P.3d 231, 234 (Ct. App. 2005) (Proper foundation is required to show that 

an expert witness employed an accurate and reliable methodology to arrive at a complex 

scientific, medical, or technical opinion such as a scientific opinion about the statistical 

reliability of a DNA match.).

We first consider the district court’s decision to exclude the forensic reports. Cook’s 

pretrial filings included his witness list which listed only two witnesses--Cook and his mother. 

His exhibit list included the two forensic testing reports and an evidence receipt form. Because 

Cook failed to disclose a witness that would be competent to testify about the content of the 

forensic testing reports, such as the Idaho State Police forensic scientists who conducted the 

tests, the State sought to exclude the forensic reports because Cook would be unable to lay the 

proper foundation necessary for the admission of the reports. Cook failed to take advantage of 

the opportunity to make an offer of proof to support his argument that the investigating officer 

would be a competent witness to admit the content of the reports, and he failed to provide

authority to support his argument that the DNA evidence was admissible without an expert 

witness. 

The district court did not err in excluding the forensic reports because Cook failed to lay 

a proper foundation for the admission of the reports. The district court noted the defense had the 

opportunity to subpoena the proper witnesses and to establish the competence of the officers as 

experts, but did not take the necessary steps to lay a proper foundation for the admission of the 

reports or the content of the reports. The district court properly determined I.R.E. 702 would 

require the use of an expert witness for the admission of the DNA evidence, and the evidence 

would be excluded in the absence of an expert witness to lay the proper foundation. 

2. Relevance

The district court also excluded the forensic reports as irrelevant and during trial

extended the ruling to include testimony about DNA testing after a State’s witness mentioned 

DNA samples were taken from Cook, his mother, and stepfather. Evidence that is relevant to a 

material and disputed issue concerning the crime charged is generally admissible. State v. 

Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008). Evidence is relevant if it has any 

tendency to make the existence of any fact that is of consequence to the determination of the 

action more probable or less probable than it would be without the evidence. I.R.E. 401; 
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Stevens, 146 Idaho at 143, 191 P.3d at 221. Whether a fact is of consequence or material is 

determined by its relationship to the legal theories presented by the parties. State v. Johnson, 

148 Idaho 664, 671, 227 P.3d 918, 925 (2010). We review questions of relevance de novo. State 

v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993); State v. Aguilar, 154 Idaho 201, 

203, 296 P.3d 407, 409 (Ct. App. 2012).

Cook argues he was prejudiced by the exclusion of the evidence because he was entitled 

to present his theory of defense and to use evidence that tended to rebut E.K.’s testimony about 

the incident. However, the district court found the reports were irrelevant because the forensic 

analysis failed to identify E.K., Cook, or the other residents of the home as the source of the 

DNA found on the pajama pants, and therefore, the evidence had no probative value to the 

proceedings. The district court found the lack of DNA matching either Cook’s or the other 

residents’ was not proof of anything because there were too many factors that could explain the 

lack of a DNA match. The court’s ruling also excluded any testimony on this issue by the 

State’s witnesses. 

The district court did not err in excluding the evidence on the basis of relevance. The 

court properly identified relevant evidence as that which tends to prove or disprove a fact of 

consequence in the case, and here the evidence would not tend to prove or disprove a fact of 

consequence in the case. The lack of DNA evidence was not relevant to Cook’s guilt or

innocence because there were too many unknown factors that might have contributed to the lack 

of a DNA match, not the least of which was any testimony establishing that these were the 

pajama pants worn during the incident. The district court properly considered the I.R.E. 403 

balancing test and found there was no probative value in the admission of the DNA evidence, 

including the lack of a DNA match between the pants and Cook. The court also properly 

determined Cook would not be prejudiced by the exclusion of the DNA evidence. The district 

court did not abuse its discretion in excluding the DNA evidence as irrelevant given the facts and 

circumstances in the record.

III. 

CONCLUSION

For the reasons set forth above, we affirm Cook’s judgment of conviction for sexual 

abuse of a minor child. Cook is not entitled to relief under the Perry analysis because he has 

failed to show a violation of his constitutional rights to due process and a fair trial in the absence 
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of a showing the juror was not impartial. Further, the district court did not err in excluding DNA 

evidence because Cook was unable to lay a proper foundation for the admission of the evidence, 

and the evidence was not relevant because it would not tend to make a fact of consequence--

Cook’s innocence or E.K.’s credibility--more or less probable.

Chief Judge MELANSON and Judge GUTIERREZ CONCUR.