State v. Temple ( 2022 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 48174
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) Boise, January 2022 Term
)
v. ) Opinion filed: April 28, 2022
)
DARREN CARLTON TEMPLE, ) Melanie Gagnepain, Clerk
)
Defendant-Appellant. )
Appeal from the District Court of the Third Judicial District of the State of
Idaho, Canyon County. Davis VanderVelde, District Judge.
The decision of the district court is affirmed.
Nevin, Benjamin & McKay, LLP, Boise, for Appellant. Dennis A. Benjamin
argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Justin R. Porter
argued.
ZAHN, Justice.
This case concerns whether a district court abused its discretion in quashing a subpoena
seeking attorney billing records in a pending divorce proceeding and whether the district court
erred in refusing to instruct the jury on the legal duty to report allegations of child abuse. For the
reasons set forth below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 20, 2018, Customs and Border Protection (“CBP”) officers arrested Darren
Temple in California as he crossed the border from Mexico into the United States. Temple had
been in Mexico for legitimate business purposes, but CBP officers received a positive alert for his
name from the National Crime Information Center indicating that Temple was wanted in Idaho on
an outstanding warrant for lewd and lascivious conduct with a minor.
Prior to his arrest, Temple had filed for a divorce from Jennifer Temple in March 2018.
Then, in May 2018, Jennifer’s daughter, J.P., filed a report with the Canyon County Sheriff’s
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Office alleging that Temple, her then stepfather, had sexually abused her by “fondl[ing] her breasts
on multiple occasions and penetrat[ing] her vagina with his fingers” between October and
November 2014, when she was fifteen years old. Though J.P. did not report the sexual abuse to
law enforcement for some time, she testified that she had told her best friend, her boyfriend, and
her mother, Jennifer, immediately following the last incident of sexual abuse in late November
2014. Jennifer never reported the sexual abuse to law enforcement. However, after encouragement
from her therapist, J.P. eventually reported the incident to law enforcement in May 2018.
Following J.P.’s report, a detective with the Canyon County Sheriff’s Office prompted her
to call Temple to gather more evidence (“the confrontation call”). J.P. agreed to call Temple and
confront him with her allegations, while law enforcement secretly recorded the call. During the
call, Temple made multiple incriminating statements, including: “It started out and went further
than it should have”; “I never tried to force anything, I always tried to be gentle”; “I did not mean
to take advantage. I’m sorry. I truly am.”; and referencing the incident as the “biggest regret of my
life.” Temple also made several statements claiming that his conduct appealed to both his and
J.P.’s sexual desires, such as “I watched your fricking nipples get hard more than once” and “I
thought part of you really liked it[.]”
On September 18, 2018, the State charged Temple with one count of lewd conduct with a
minor under sixteen pursuant to Idaho Code section 18-1508, alleging Temple had manual-genital
contact with J.P., and one count of sexual abuse of a child under sixteen pursuant to Idaho Code
section 18-1506, alleging Temple manually touched J.P.’s breasts. After a warrant was issued for
Temple’s arrest, he was apprehended in California two days later as he entered the United States
from Mexico and subsequently returned to Canyon County.
Under the case caption and case number of his criminal case, Temple served Jennifer’s
divorce attorney with a subpoena duces tecum seeking “any and all documents related to the billing
and payment records related to the representation of Jennifer Temple, to include, but not limited
to the number of hours worked and the number of hours charged.” Jennifer’s attorney moved to
quash the subpoena, arguing the requested records contained attorney-client privileged
information and attorney work product. Temple did not respond to the motion to quash his
subpoena.
The district court heard oral argument on the motion to quash. At the hearing, Temple
clarified that he sought only “the amount of money that [Jennifer] has invested in this divorce,”
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ostensibly to demonstrate that Jennifer had “a significant interest in seeing [Temple] go to prison.”
The district court granted the motion to quash, concluding the information sought was irrelevant
and, alternatively, covered by the attorney-client privilege.
Temple subsequently filed a motion to reconsider the district court’s ruling granting the
motion to quash, arguing that the records he sought were not privileged. Following a hearing, the
district court issued an oral ruling denying the motion. The district court reiterated its conclusion
that the information sought by the subpoena constituted attorney-client privileged communications
and were otherwise irrelevant to the case. The district court thereafter issued a written order
quashing Temple’s subpoena.
At trial, the State called two witnesses—Wendy Barth and Dr. Edwin Hutchinson—who
testified that Temple had disclosed his abuse of J.P. to them during counseling sessions. Barth
testified that, during a marriage counseling session, Temple disclosed to her “that there was an
incident in which he had touched Jennifer’s daughter in a sexually inappropriate way.” She also
testified that she reported this information to Child Protective Services at the Idaho Department of
Health and Welfare. Similarly, Hutchinson testified that, during a counseling session, Temple
“confessed . . . that he had molested his daughter.” He also stated that he reported Temple’s
disclosure to the Department of Health and Welfare in either 2014 or 2015. However, Hutchinson
also testified that he had destroyed all his patient records following his retirement, including
records of his sessions with Temple.
Prior to trial, Temple filed his proposed jury instructions with the district court, including
an instruction on the statutory duty to report child abuse set out in Idaho Code section 16-1605.
The district court declined to deliver the instruction, reasoning that the instruction was not
“pertinent to th[e] case, given that it’s not the doctors [sic] that are being charged in this matter.”
Although the district court did not instruct the jury on the statutory duty to report child
abuse, Temple’s counsel cross-examined both Barth and Hutchinson on the subject. Counsel also
questioned the detective who investigated J.P.’s sexual abuse allegations about whether the
detective had seen a report from either Hutchinson or any other person regarding Temple’s
disclosures. The detective testified that although a Health and Welfare referral “triggers a law
enforcement police report,” he was unable to find any records of a report from Hutchinson or
anyone else regarding Temple. Finally, Temple’s counsel discussed the statutory duty to report
allegations of child abuse in her closing argument.
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The jury returned a guilty verdict on Count II, sexual abuse of a child, but did not come to
a unanimous decision on Count I, lewd conduct with a minor under sixteen. Rather than seek a re-
trial of Count I, the State moved to dismiss that charge. The district court granted the motion.
Subsequently, the district court entered a judgment of conviction on the jury’s verdict finding
Temple guilty of sexual abuse of a child and sentenced Temple to ten years imprisonment, with
three years fixed, but retained jurisdiction under Idaho Code section 19-2601(4). Temple timely
appealed.
II. ISSUES ON APPEAL
1. Did the district court abuse its discretion in quashing Temple’s subpoena for billing records
from his then wife’s divorce attorney?
2. Did the district court err in declining to instruct the jury on the statutory duty to report child
abuse?
III. STANDARD OF REVIEW
A trial court’s decision to grant or deny a motion to quash is reviewed according to an
abuse of discretion standard. State v. Loera, 167 Idaho 533, 536, 473 P.3d 802, 805 (2020) (citing
State v. Joy, 155 Idaho 1, 12, 304 P.3d 276, 287 (2013)). Under that standard, this Court asks
whether the court “(1) correctly perceived the issue as one of discretion; (2) acted within the outer
boundaries of its discretion; (3) acted consistently with the legal standards applicable to the
specific choices available to it; and (4) reached its decision by the exercise of reason.” Id. (quoting
State v. Le Veque, 164 Idaho 110, 113, 426 P.3d 461, 464 (2018)).
“This Court reviews the trial court’s jury instructions de novo to determine whether, when
considered as a whole, they fairly and adequately present the issues and state the applicable law.”
State v. Medina, 165 Idaho 501, 507, 447 P.3d 949, 955 (2019) (internal quotation marks omitted)
(citing State v. Dunlap, 155 Idaho 345, 364, 313 P.3d 1, 20 (2013)).
IV. ANALYSIS
A. Any error in the district court’s order quashing Temple’s subpoena was harmless.
Temple argues that the district court abused its discretion in quashing his subpoena because
the billing records from his ex-wife’s divorce lawyer were relevant for impeachment purposes, the
records were not privileged, and there was not sufficient evidence for the district court to conclude
that the subpoena imposed an undue burden. The State contends that the billing records were
irrelevant, subject to attorney-client privilege, and oppressive for other reasons. The State also
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argues that Temple has not preserved his argument that the dates of certain billing records would
be relevant to impeach J.P.’s testimony.
Assuming, without deciding the issue, that the district court erred in quashing Temple’s
subpoena, we hold that any error was harmless because the State has demonstrated beyond a
reasonable doubt that the lack of attorney billing statements did not contribute to the verdict. That
is to say, the probative value of the evidence against Temple outweighed the marginal probative
value of the information sought by the subpoena.
1. Temple has preserved his relevancy argument.
Temple argues that the information sought from subpoenaing Jennifer’s divorce attorney
is relevant because it could have been used to impeach J.P.’s testimony. He contends that the dates
on the billing records could correspond with the date J.P. decided to report him to the police. If
true, Temple suggests this might demonstrate that the report stemmed from Jennifer’s efforts to
obtain an upper hand in the divorce proceedings. The State argues that this issue has not been
preserved on appeal because Temple did not argue this theory below. Rather, the State asserts that
Temple limited his argument to whether the billing records would be relevant because they showed
how much Jennifer spent on her divorce lawyer, impeaching her credibility as a witness in
Temple’s criminal trial.
To preserve an issue for appeal, both the issue and the party’s position on the issue must
have been raised before the trial court. State v. Gonzalez, 165 Idaho 95, 99, 439 P.3d 1267, 1271
(2019). A party may augment his legal authority relating to his positions but may not “raise new
substantive issues on appeal or adopt a new position on an issue that the trial court has not had the
opportunity to rule on.” Id. at 98, 439 P.3d at 1270. That is to say, “[t]his Court can hear refined
legal arguments regarding an issue heard and decided by the court below, but in fairness to the
district court and the opposing party, we cannot usurp the district court’s role by deciding new
legal issues in the first instance.” State v. Wilson, 169 Idaho 342, __, 495 P.3d 1030, 1034 (2021)
(quoting Siercke v. Siercke, 167 Idaho 709, 715, 476 P.3d 376, 382 (2020)).
Temple’s initial subpoena was broad, seeking “any and all documents related to the billing
and payment records related to the representation of Jennifer Temple, to include, but not limited
to the number of hours worked and the number of hours charged.” The request was broad enough
to encompass billing records showing the hours Jennifer’s attorney billed, the rate charged, and
the dates on which those services were billed. At oral argument, Temple maintained those records
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would be relevant to show that “[J.P.’s] allegation was made because of the entrust [sic] in the
divorce and the financial component.” Although the transcript reads “entrust,” it is likely this is an
error and the proper word is “interest.” Thus, Temple’s position before the district court included
an argument that the records were relevant to call into question J.P.’s allegations because of
Jennifer’s interest in the divorce, of which her financial interest was but one component. In sum,
the nub of Temple’s relevancy argument was that J.P.’s allegations were a coordinated part of
Jennifer’s divorce litigation strategy.
That said, the State contends that Temple limited his request to only the amount of money
Jennifer had spent on the divorce, and waived his ability to argue that the dates of the billed hours
were relevant. The State’s representation that Temple limited his request to only the billed amounts
is not as clear-cut as it contends. The State points to language from the hearing on the motion to
quash in which Temple’s attorney stated:
We're not asking for the content of what those billing records relate to beyond —
essentially the point is the amount — bottom line is the amount of money that she
has invested in this divorce and frankly why Ms. Temple has a significant interest
in seeing my client go to prison.
However, the quoted language was a response to a district court question concerning whether the
subpoenaed records were subject to the attorney-client privilege, not whether the information in
those records would be relevant to Temple’s defense. In other words, the State’s waiver argument
is disjointed as it suggests that Temple waived a relevancy argument by arguing that the records
he sought were not subject to the attorney-client privilege. We are not persuaded by the State’s
argument and hold that Temple has preserved his relevancy argument.
2. Any error in quashing Temple’s subpoena was harmless.
We find no need to address the thorny attorney-client privilege issue raised by Temple’s
arguments as we conclude that even if the district court erred in quashing Temple’s subpoena that
error was harmless because the probative value of the evidence against Temple substantially
outweighed the marginal probative value of the information sought by the subpoena.
Temple argues that the State cannot demonstrate that erroneously quashing his subpoena
was harmless beyond a reasonable doubt. He contends that the billing records would have been
critical to impeach both Jennifer’s and J.P.’s testimony. Thus, he claims that the alleged errors
prevented him from effectively impeaching the State’s witnesses, which is not harmless error. The
State contends that any error in quashing the subpoena was harmless because of the overwhelming
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evidence of guilt against him and the low probative value of the evidence Temple sought. The
State also argues that the billing records sought by the subpoena bore, at most, an attenuated
connection to Temple’s guilt, that Temple presented other evidence of Jennifer’s interest in the
divorce, and that the content of the billing records would likely have been excluded by a pretrial
order that limited the admission of divorce-related evidence to certain subjects.
“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) (quoting State v. Perry, 150 Idaho 209, 222, 245 P.3d 961,
974 (2010)). This Court applies a two-step test to determine if the State has carried its burden to
demonstrate that an error is harmless beyond a reasonable doubt. State v. Garcia, 166 Idaho 661,
674–75, 462 P.3d 1125, 1138–39 (2020). First, we ask “what evidence the jury actually considered
in reaching its verdict.” Id. at 674, 462 P.3d at 1138 (quoting Yates v. Evatt, 500 U.S. 391, 403
(1991)). Next, we “weigh the probative force of that evidence . . . against the probative force of
the [error] standing alone.” Id. (quoting Yates, 500 U.S. at 403) (second alteration in original). If
application of this two-step test yields a result that the verdict would have been the same without
the error, the error is harmless. Id. at 675, 462 P.3d at 1139. “[T]he proper showing for ‘harmless
error’ is not ‘overwhelming evidence’ of the defendant’s guilt.” Id. at 674, 462 P.3d at 1138
(emphasis in original). “While a reviewing court might quantify the probative force of the record
as a whole as ‘overwhelming evidence’ of guilt . . . the probative force of the error must be weighed
as well.” Id.
Even if the district court erred in quashing Temple’s subpoena, we hold any error was
harmless. First, the probative value of the properly admitted evidence against Temple was
considerable. J.P. testified that Temple had sexually abused her. The confrontation call between
J.P. and Temple is highly probative of Temple’s guilt as he made numerous statements that
corroborated J.P.’s testimony and admitted culpability for his conduct. In addition, two witnesses,
Barth and Hutchinson, testified that Temple disclosed to them he had inappropriate sexual contact
with J.P. In short, we find it appropriate to characterize the amount of evidence of Temple’s guilt
as “overwhelming.”
In contrast, the probative force of the information sought by the subpoena was slight at
best. Temple was permitted to raise this argument at trial, asserting that Jennifer’s substantial
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interest in the divorce explained the timing and motivation of J.P.’s allegations, through other
means. For instance, Temple presented evidence that he filed for divorce from Jennifer in March
2018, and J.P. did not come forward with allegations of sexual abuse until May 2018. Temple also
admitted a Facebook post from J.P., made shortly after his arrest, in which she stated “Don’t beef
with MY MOMMA cause then here come me [sic] and she can’t control me . . . . Someone is
currently learning this the hard way.” Further, both Temple and Jennifer testified that the divorce
concerned up to $4 million in assets and that there were contentious custody proceedings.
Jennifer’s attorney’s billing records would add little to this evidence. The jury considered this
evidence and still found Temple guilty based on the evidence presented by the State. Thus, we are
convinced beyond a reasonable doubt that the verdict would have been the same even if the jury
had been able to consider evidence from Jennifer’s attorney’s billing records. Accordingly, we
hold that the State has carried its burden to establish that any error in this case was harmless beyond
a reasonable doubt.
B. The district court did not err in declining to instruct the jury on the statutory duty to
report child abuse.
Temple next argues that the district court erred in refusing to deliver his proposed jury
instruction on the statutory duty to report child abuse because the instruction was (1) a proper
statement of law, (2) supported by a reasonable view of the evidence, (3) not adequately addressed
by the other instructions, (4) not an impermissible comment on the evidence, and (5) pertinent to
the case. The State argues the district court did not err in refusing to deliver the instruction because
the instruction was (1) misleading, (2) the content of the instruction was adequately covered by
the other instructions, and (3) Temple was able to present his argument on mandatory reporting
during closing. The district court declined to deliver the instruction, reasoning that the instruction
was not “pertinent to th[e] case, given that it’s not the doctors [sic] that are being charged in this
matter.”
When instructing a jury, a trial court “must state to them all matters of law necessary for
their information.” I.C. § 19-2132. “In other words, a trial court must deliver instructions on the
rules of law that are ‘material to the determination of the defendant’s guilt or innocence.’” State v.
Severson, 147 Idaho 694, 710, 215 P.3d 414, 430 (2009) (quoting State v. Mack, 132 Idaho 480,
483, 974 P.2d 1109, 1112 (Ct. App. 1999)). “This necessarily includes instructions on the ‘nature
and elements of the crime charged and the essential legal principles applicable to the evidence that
has been admitted.’” State v. Ahmed, 169 Idaho 151, __, 492 P.3d 1110, 1125 (2021) (quoting
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State v. Meyer, 161 Idaho 631, 634, 389 P.3d 176, 179 (2017)). It is reversible error to deliver
instructions that mislead the jury or prejudice a party. State v. Mann, 162 Idaho 36, 40, 394 P.3d
79, 83 (2017) (citing Perry v. Magic Valley Reg’l Med. Ctr., 134 Idaho 46, 51, 995 P.2d 816, 821
(2000)).
Either party may request the delivery of an instruction. I.C. § 19-2132. However, only those
instructions that the court determines are “correct and pertinent” must be delivered. Id. A trial court
need not deliver an instruction if “it is either [(1)] erroneous in its statement of law, [(2)] . . . not
supported by the evidence, [(3)] constitutes an impermissible comment on the evidence, or [(4)] is
adequately covered by the other instructions given by the court.” State v. Lemmons, 158 Idaho 971,
976, 354 P.3d 1186, 1191 (2015) (quoting State v. Tiffany, 139 Idaho 909, 916, 88 P.3d 728, 735
(2004)).
We hold that the district court did not err in refusing to deliver Temple’s proposed
instruction because that instruction could have misled the jury, was adequately covered by other
instructions, and likely constituted an impermissible commentary on the evidence. First, Temple’s
proposed instruction would likely mislead the jury because instructing the jury on a witnesses’
potential criminal liability confuses the issues the jury is tasked with deciding. As the district court
stated, “it’s not the doctors [sic] that are being charged in this matter,” thus the witnesses’ potential
criminal liability under section 16-1605 for allegedly failing to report Temple’s disclosure would
be confusing to the jury. As noted above, instructions are to be “material to the defendant’s guilt
or innocence.” Severson, 147 Idaho at 710, 215 P.3d at 430. The instruction sought by Temple had
nothing to do with his guilt or innocence.
Second, we conclude the purpose of the proposed instruction—to attack the credibility of
the State’s witnesses—was adequately covered by other instructions because the district court
instructed the jury on their duty to consider the evidence and on their ability to assess each
witnesses’ credibility. Specifically, the district court instructed the jurors to “determine for
yourselves whom you believe, what you believe, and how much weight you attach to what you are
told.” The instruction continued, stating “[y]our role is to think about the testimony of each witness
you heard and decide how much you believe of what the witness had to say.” In addition, the jury
was instructed specifically about statements Temple may have made to Barth, Jennifer, and
Hutchinson and instructed that they were to “decide what, if any, statements were made and give
them the weight you believe is appropriate, just as you would any other evidence or statement in
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the case.” Importantly, the defense was ultimately allowed to discuss the reporting requirements
without opposition from the State. Thus, the jury was afforded the opportunity to weigh credibility
in light of the reporting requirements and still found the defendant guilty. Accordingly, Temple’s
proposed instruction on mandatory reporting—which was offered to help the jury assess Barth’s,
Jennifer’s, and Hutchinson’s credibility—was adequately covered by the other instructions
because the instructions given specifically and generally discussed the jury’s ability to assess
witness credibility in light of the evidence produced at trial.
Finally, the proposed instruction was an impermissible comment on the evidence because
it was proposed for the purpose of impeaching specific witnesses’ credibility. Temple argues that
the proposed instruction on mandatory reporting was pertinent to the case because it would
impeach Barth’s, Jennifer’s, Hutchinson’s, and J.P.’s testimony. Thus, by its very nature, Temple’s
proposed instruction was meant to be a commentary on the evidence because impeaching a
witness’s credibility is a method of persuading the jury to assign less weight to a particular piece
of evidence. See Impeachment Evidence, BLACK’S LAW DICTIONARY (11th ed. 2019) (“Evidence
used to undermine a witness’s credibility”); Credibility, BLACK’S LAW DICTIONARY (11th ed.
2019) (“The quality that makes something (as a witness or some evidence) worthy of belief.”).
Again, Temple put evidence into the record on the statutory duty to report child abuse by cross-
examining both Barth and Hutchinson on the subject. Therefore, the district court did not err by
electing not to instruct the jury on a collateral point of law that was uncontested and not
determinative of the case.
Because we hold that the district court did not err in declining to deliver the proposed
instruction, we do not address the State’s argument that an instruction need not be delivered if “its
substance could be adequately covered in closing argument.”
V. CONCLUSION
For the foregoing reasons, we affirm Temple’s judgment of conviction.
Chief Justice BEVAN and Justices BRODY, STEGNER, and MOELLER CONCUR.
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