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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45629

STATE OF IDAHO,

Plaintiff-Respondent,

v.

BILLY LEE JOSLIN, JR.,

Defendant-Appellant.

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Opinion Filed: October 8, 2019

Karel A. Lehrman, Clerk

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

Kootenai County. Hon. Cynthia K.C. Meyer, District Judge. 

Judgment of conviction for rape and attempted strangulation, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Maya P. Waldron, Deputy 

Appellate Public Defender, Boise, for appellant. Maya P. Waldron argued.

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

General, Boise, for respondent. Jeff D. Nye argued.

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HUSKEY, Judge

Billy Lee Joslin, Jr. appeals from his judgment of conviction entered upon the jury 

verdict finding him guilty of rape and attempted strangulation. On appeal, Joslin argues the 

district court erred when it allowed Joslin’s ex-wife to testify. Specifically, Joslin claims the 

district court abused its discretion when it found the ex-wife’s testimony was admissible under 

Idaho Rule of Evidence 404(b). To the extent the district court erred in admitting the testimony 

from Joslin’s ex-wife, any such error was harmless and we affirm the district court’s judgment of 

conviction.
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I.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Joslin by information with rape, Idaho Code § 18-6101, and attempted 

strangulation, I.C. § 18-923.1 The State also charged Joslin with being a persistent violator, 

I.C. § 19-2514. 

The State filed a motion in limine, pursuant to Rule 404(b), seeking to admit evidence 

that in 2006 Joslin entered the home of his ex-wife, strangled her until she was unconscious, and 

raped her. In its brief in support of the motion in limine, the State argued the evidence of 

Joslin’s prior conduct was admissible because it was part of a common plan and because it was 

relevant for purposes of disproving consent. Joslin objected to the State’s intent to use Rule 

404(b) evidence.

After a hearing on the motion, the district court issued a memorandum decision granting 

the State’s motion. The district court explained the evidence was admissible because it was 

probative of plan, identity, preparation, and absence of mistake or accident.

At trial, the State presented evidence regarding the injuries sustained by the victim. The 

State called eighteen witnesses, including the victim. The victim testified that on August 25, 

2016, she returned to her apartment during the lunch hour. According to the victim, Joslin 

grabbed her by the neck and choked her in a way that she lost and regained consciousness 

several times. While doing so, Joslin also placed a hand over the victim’s mouth, so she was 

limited to intermittently breathing through her nose. Joslin then had intercourse with the victim. 

In addition to the victim’s testimony, the jury saw photographs of the victim’s face, neck, 

and body which showed abrasions, redness, and swelling. The jury heard testimony from 

healthcare workers who attended to the victim, listened to her story about being choked and 

raped, and saw the injuries. The jury also heard from the victim’s coworkers who explained how 

the victim was distraught and injured when she returned to work after lunch and recounted the 

story of being raped and choked during her time away from work that afternoon. The nurses and 

an officer also testified regarding the chain of custody and the transportation of the DNA 

 1 The original complaint charged Joslin with felony rape, felony attempted strangulation, 

felony burglary, felony kidnapping, and felony robbery. The State later amended the complaint 

and added a persistent violator charge. The State amended the complaint for a second time and 

removed the felony burglary and felony robbery charges. The kidnapping charge was also 

dismissed prior to trial. 
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evidence. A lab technician testified the evidence in the victim’s rape kit tested positive, and a 

forensic scientist explained Joslin’s DNA was found in the victim.

The State’s final witness was Joslin’s ex-wife, whose testimony was the subject of the 

Rule 404(b) dispute prior to trial. Joslin renewed his objection to the ex-wife’s testimony, and 

the district court allowed for an offer of proof wherein Joslin’s ex-wife testified outside the 

presence of the jury. Following the offer of proof, the district court found the testimony of the 

ex-wife was admissible under Rule 404(b) as proof of motive, opportunity, intent, preparation, 

plan, and absence of mistake or accident. The district court also gave the jury a limiting 

instruction that applied to the ex-wife’s testimony.

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 Joslin presented no evidence on his behalf 

and did not testify.

The jury found Joslin guilty of felony rape and felony attempted strangulation. Joslin 

admitted to the persistent violator enhancement. The district court entered a judgment and 

imposed concurrent, determinate life sentences. Joslin timely appeals. 

II.

STANDARD OF REVIEW

Error is not reversible unless it is prejudicial. State v. Stell, 162 Idaho 827, 830, 405 P.3d 

612, 615 (2017). 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 

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

defendant appealing from an objected-to, non-constitutionally-based error shall have the duty to 

establish that such an error occurred, at which point the State shall have the burden of 

demonstrating that the error is harmless beyond a reasonable doubt. State v. Montgomery, 163 

Idaho 40, 46, 408 P.3d 38, 44 (2017). In other words, the error is harmless if the Court finds that 

the result would be the same without the error. Id.

III.

ANALYSIS

The parties disagree as to the admissibility of Joslin’s ex-wife’s testimony. Assuming 

without deciding that the district court erred when it allowed Joslin’s ex-wife to testify, the 

 2 The instruction stated, in relevant part: “Such evidence may be considered by you only 

for the limited purpose of proving the defendant’s motive, opportunity, intent, preparation, plan, 

knowledge, or absence of mistake of [sic] accident.” 
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determinative issue on appeal is whether the district court’s admission of the ex-wife’s testimony 

was harmless error. Both parties agree the applicable standard is the standard articulated in 

Chapman v. California, 386 U.S. 18 (1967): where a violation is followed by a 

contemporaneous objection, a reversal is required unless the State proves beyond a reasonable 

doubt that the error complained of did not contribute to the verdict obtained. Id. at 24; see also

State v. Perry, 150 Idaho 209, 221, 245 P.3d 961, 973 (2010). However, the parties disagree on 

the application of the standard. Joslin asserts the “inquiry . . . is not whether, in a trial that 

occurred without the error, a guilty verdict would surely have been rendered, but whether the 

guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan v. 

Louisiana, 508 U.S. 275, 279 (1993). The State disagrees and argues this Court must simply 

determine whether the result would have been the same without the error.

The United States Supreme Court applied the Chapman standard in Neder v. United 

States, 527 U.S. 1 (1999). There, the Court noted that, like in cases in which evidence had been 

admitted in violation of the right to confront witnesses, the harmless error test for Fifth and Sixth 

Amendment violations and for instructional error “must be essentially the same: Is it clear 

beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the 

error?” Id. at 18. The Court further explained that a reviewing court applying a harmless error 

test does not become in effect a second jury to determine whether the defendant is guilty. Id. at 

19. Instead, “a court, in typical appellate-court fashion, asks whether the record contains 

evidence that could rationally lead to a contrary finding with respect to the [error].” Id. 

In subsequent cases, the United States Supreme Court has noted “since Chapman, the 

Court has consistently made clear that it is the duty of a reviewing court to consider the trial 

record as a whole and to ignore errors that are harmless, including most constitutional 

violations.” United States v. Hasting, 461 U.S. 499, 509 (1983) (citations omitted). In Hasting, 

the Court explained how to apply the Chapman test: “The question a reviewing court must ask is 

this: absent the [error], is it clear beyond a reasonable doubt that the jury would have returned a 

verdict of guilty?” Hasting, 461 U.S. at 510-11. The Court noted Chapman required 

consideration of the entire record prior to reversing a conviction for constitutional errors that 

may be harmless. Hasting, at 509 n.7. The Court then reviewed the evidence in the case and 

determined the error was harmless because based on the evidence presented to the jury, “a more 

compelling case of guilt is difficult to imagine.” Id. at 511. 
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Joslin asks this Court to read the Sullivan language into the Chapman standard. This we 

decline to do. While it is true the Perry Court quotes the language from Sullivan, the Court did 

so when discussing the type of claim that gives rise to structural error, not harmless error. Perry, 

150 Idaho at 223, 245 P.3d at 975. While the Supreme Court in Perry adopted the Chapman

harmless error test, it did not specify how the test should be applied. But since Perry, the Idaho 

Supreme Court has explained how to apply the harmless error standard. In Montgomery, the 

Supreme Court explained: 

“A defendant appealing from an objected-to, non-constitutionally-based error 

shall have the duty to establish that such an error occurred, at which point the 

State shall have the burden of demonstrating that the error is harmless beyond a 

reasonable doubt.” Perry, 150 Idaho at 222, 245 P.3d at 974. “In other words, 

the error is harmless if the Court finds that the result would be the same without 

the error.” State v. Almaraz, 154 Idaho 584, 598, 301 P.3d 242, 256 (2013).

Montgomery, 163 Idaho at 46, 408 P.3d at 44. 

Thus, in deciding whether an alleged error is harmless, this Court looks to the entire 

record and the evidence produced at trial to determine whether we can find “the jury actually 

rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, 

independently of the assumed inadmissible evidence.” Yates v. Evatt, 500 U.S. 392, 404 

(1991).

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In this case, Joslin would have been convicted even without the testimony of his ex-wife. 

At trial, the State called eighteen witnesses to testify, the last of which was Joslin’s ex-wife. The 

witnesses included healthcare workers, employees at the sheriff’s office, coworkers of the 

victim, family members of the victim, lab technicians, and a member of the criminal 

investigations unit of the prosecutor’s office. The victim also testified on her own behalf.

The emergency room doctor who examined the victim explained the victim said she was 

raped and choked. The doctor commented the victim had “abrasions around the neck, she had 

subconjunctival hemorrhages, bleeding over the white parts of both eyes.” When showing a 

photograph of the victim to the jury, the doctor provided the following explanation: “You can

 3 We recognize the standard of review for jury instructions set forth in Yates was 

disapproved in Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991). Estelle acknowledged that Yates

might be read as endorsing a different standard of review than that which was articulated in 

Boyde v. California, 494 U.S. 370, 380 (1990). Estelle, 502 U.S. at 72 n.4. The Court in Estelle 

reaffirmed the Boyde standard was the proper formulation. Estelle, 502 U.S. at 72 n.4. Yates

otherwise remains valid precedent and the language in Yates has been cited after Estelle to aid in 

harmless error analyses.
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see the bleeding over the white parts of the eye. You can also see the small bruising indicative of 

increased pressure of the eyes. There’s also the opposite eye, the same findings. Various bruises 

and abrasions, as well, but this is the hemorrhages that I was talking about.” The doctor 

concluded the victim was “clearly assaulted, sexually assaulted and choked.”

One nurse testified she saw the victim at the hospital. The victim explained she had been 

choked on and off repeatedly, lost consciousness, and when she woke, Joslin ordered her to take 

off her clothes and he had intercourse with her. The nurse testified the victim complained of 

pain from strangulation around her throat, neck pain, and abrasions. While the jury was shown a 

photograph of the victim, the nurse explained there were marks on the victim’s neck, armpits,

and right thigh, as well as bruising under her eyes. The nurse concluded the victim was sexually 

assaulted.

The jury also heard testimony from three of the victim’s coworkers. Each of the 

coworkers saw the victim on August 25, 2016. The coworkers testified the victim did not have 

any noticeable injuries that morning when she arrived at work. One coworker explained the 

victim returned from lunch in a state of shock, holding her neck and saying that her throat hurt.

That coworker testified the victim said Joslin grabbed her by the throat while the victim was 

entering her apartment. That coworker also explained the victim was starting to develop bruises 

on her neck and her eyes were getting red. Another coworker testified the victim returned to 

work crying. Upon her return, the victim exclaimed Joslin strangled and raped her. According 

to the coworker, the victim said she went home for lunch and when entering her house, Joslin 

grabbed her, threw her on the couch, and proceeded to choke her and rape her. A third coworker 

stated the victim was distraught and sobbing when she returned to work after lunch. According 

to this coworker, the victim’s eyes were swollen, her voice was raspy, and she explained Joslin 

had beaten her and choked her. 

A police officer who had been called to the victim’s work on August 25, 2016, also 

testified at trial. The officer testified when he saw the victim, she had red marks on her neck, her 

eyes were puffy and red, there was blood inside her eyes, and her voice was really raspy. 

According to the officer, the victim claimed she was raped, and thus, the officer made sure the 

victim went to the hospital to complete a sexual assault kit. The officer testified he accompanied 

the victim to the hospital. The officer also explained he took possession of the sexual assault kit 

from a nurse and booked it into the evidence department at the sheriff’s office. 
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Regarding DNA, one nurse explained she took swabs from the victim and sent them in 

for testing. The jury also heard from two other nurses who confirmed DNA evidence was taken 

from Joslin and transferred to an officer, who booked it into evidence. A lab technician testified 

the evidence inside the victim’s rape kit tested positive, and a forensic scientist explained she 

performed DNA analysis of the victim and Joslin, and concluded Joslin’s DNA was found inside 

the victim. 

The victim also testified in this case. After she explained the layout of her house and her 

prior relationship with Joslin, the victim described what happened when she returned to her 

home during lunchtime on August 25, 2016. When the victim unlocked her door, Joslin came up 

behind her in a rush and grabbed her by the neck. According to the victim’s testimony, Joslin 

choked her in and out of consciousness, and would remove his hands from her throat and place 

them over her mouth. The jury heard the victim testify Joslin raped her.

Joslin did not take the stand and did not present any witnesses in his defense. Joslin 

presented no evidence to rebut the State’s eighteen witnesses or to support his defense theory 

that the intercourse was consensual. In cross-examination, Joslin asked the doctor if the injuries 

could have been sustained during erotic asphyxiation, and the doctor responded he could not 

provide an opinion on that issue. Joslin asked the nurse the same question and the nurse 

unequivocally said the injuries could not have been sustained during an encounter of that type. 

Thus, there was no evidence in support of Joslin’s theory of defense that the sexual contact was 

consensual, while there was overwhelming evidence that the sexual contact was not consensual.

The result in this case would have been the same even without the district court’s alleged

error. The entire record demonstrates overwhelming evidence upon which the jury rested its 

guilty verdict, independent of the testimony of Joslin’s ex-wife. To the extent the district court 

erred in admitting the ex-wife’s testimony, any such error was harmless. 

IV.

CONCLUSION

To the extent the district court erred in admitting the testimony from Joslin’s ex-wife, any 

such error was harmless and we affirm the district court’s judgment of conviction.

Chief Judge GRATTON and Judge BRAILSFORD CONCUR.