State v. Harris ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 47635
STATE OF IDAHO, )
) Filed: December 3, 2020
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
DONALD LEONARD HARRIS, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Scott Wayman, District Judge.
Judgment of conviction for three counts of sexual exploitation of a child by
possession of sexually exploitative material and one count of injury to child,
affirmed.
Schwartz Law, P.C.; Christopher D. Schwartz, Coeur d’Alene, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
Attorney General, Boise, for respondent.
________________________________________________
HUSKEY, Chief Judge
Donald Leonard Harris appeals from his judgment of conviction for three counts of sexual
exploitation of a child by possession of sexually exploitative material (possession of sexually
exploitative material) and one count of injury to child. Harris makes two arguments on appeal:
first, the State breached its plea agreement at sentencing by implicitly arguing against the
agreement after it was executed; and second, the district court abused its discretion by imposing
excessive sentences. Harris failed to obtain an adverse ruling from the district court and Harris
failed to raise a claim addressing fundamental error analysis in his opening brief on appeal.
Consequently, Harris did not preserve his claim related to the alleged breach of the plea agreement
for this Court’s review. Even if the issue was preserved, the State did not breach the plea
agreement. Further, the district court did not abuse its sentencing discretion. Accordingly, the
judgment of conviction and sentences are affirmed.
1
I.
FACTUAL AND PROCEDURAL BACKGROUND
Two women reported to law enforcement that Harris sexually abused them when they were
minors and that Harris may have documented some of the abuse through videos and photographs.
As a result, law enforcement officers conducted a search of Harris’s home, which resulted in the
discovery of a large quantity of sexually exploitative material. The State charged Harris with two
counts of lewd conduct with a minor under sixteen and five counts of possession of sexually
exploitative material. Pursuant to a plea agreement, the State amended the charges to one count
of injury to child, naming both victims with the same factual bases as the lewd conduct charges,
and three charges of possession of sexually exploitative material. Harris waived his rights to
appeal the conviction and to withdraw his guilty plea pursuant to Idaho Criminal Rule 33. As part
of the plea agreement, both parties stipulated that Harris would receive a prison sentence but the
length of the sentence was “open for argument” at the sentencing hearing.
Harris entered an Alford1 plea to injury to child and pleaded guilty to three counts of
possession of sexually exploitative material. At the sentencing hearing, the State recommended a
twenty-five-year sentence, with twelve years determinate, while Harris argued for a determinate
sentence of two years, followed by an unspecified indeterminate sentence. After considering the
goals of sentencing and other factors, the district court sentenced Harris to a cumulative twenty-
year sentence, with eight years determinate: a unified ten-year sentence, with eight years
determinate, for the injury to child charge and a ten-year indeterminate sentence for each
possession of sexually exploitative material charge, to be served concurrently with each other but
consecutively to the injury to child charge. Harris timely appeals.
II.
STANDARD OF REVIEW
It is well settled that in order for an issue to be raised on appeal, the record must reveal an
adverse ruling that forms the basis for assignment of error. State v. Huntsman, 146 Idaho 580,
585, 199 P.3d 155, 160 (Ct. App. 2008); State v. Amerson, 129 Idaho 395, 401, 925 P.2d 399, 405
(Ct. App. 1996).
1
North Carolina v. Alford, 400 U.S. 25 (1970).
2
An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal, the
appellant has the burden to show that it is unreasonable and, thus, a clear abuse of discretion. State
v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such an abuse
of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho
89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it appears at the time
of sentencing that confinement is necessary to accomplish the primary objective of protecting
society and to achieve any or all of the related goals of deterrence, rehabilitation, or retribution
applicable to a given case. State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App.
1982).
III.
ANALYSIS
On appeal, Harris alleges the State breached the terms of the plea agreement at sentencing
by implicitly arguing against the agreement after it was executed and the district court abused its
discretion by imposing excessive sentences. In response, the State argues Harris waived
consideration of the alleged breach of the plea agreement by failing to obtain an adverse ruling
from the district court. However, if the claim is preserved for appeal, the State asserts that Harris
failed to show the State breached the plea agreement. Finally, the State contends the district court’s
sentence was not an abuse of discretion.
A. Harris Has Not Preserved a Claim of Error Related to the Alleged Breach of the Plea
Agreement as He Did Not Obtain an Adverse Ruling in the District Court
Harris argues the prosecutor breached the terms of the plea agreement by arguing for a
sentence based on the original charges for lewd conduct, instead of the reduced charge of injury to
child. Harris alleges a breach occurred because the prosecutor initially told the district court that
it was sentencing Harris for lewd conduct, repeatedly referenced that Harris had sex with and
sexually abused the named victims, and based the State’s recommended sentence “almost entirely”
on the conduct supporting Harris’s injury to child plea. Because of these comments, Harris argues
the State essentially argued for a sentence based on the lewd conduct charge, not the injury to child
charge, and therefore this Court should vacate his sentence.2 In response, the State asserts there is
2
In the plea agreement, Harris agreed to “[w]aive appeal as of right as to conviction and
ability to request a withdrawal of guilty plea under [Idaho Criminal Rule] 33.” However, as the
3
no adverse ruling from which Harris can appeal, as Harris did not ask the district court to rule on
the alleged breach of the plea agreement; consequently, any claim of error is unpreserved.
It is the appellant’s burden to obtain an adverse ruling at the trial court, Huntsman, 146
Idaho at 586, 199 P.3d at 161, and it is well settled that this Court will not review an appellant’s
assignment of error unless the record discloses such an adverse ruling which forms the basis for
the claim. State v. Dougherty, 142 Idaho 1, 6, 121 P.3d 416, 421 (Ct. App. 2005). This remains
true even when the trial court had actual knowledge of the issue and implicitly did not grant the
party the desired relief. Huntsman, 146 Idaho at 586, 199 P.3d at 161.
Here, there is no ruling which was unfavorable to Harris for this Court to review. In
response to the prosecutor’s sentencing recommendation, Harris’s counsel expressed concern that
the recommendation breached the terms of the plea agreement, but stated that he would raise this
issue on appeal:
Well, to begin with, Judge, I think it’s important to note that Mr. Harris is here in
front of you not on an L and L charge but an injury to child charge.
So pursuant to State v[.] Wells,3 I believe the State has breached the Plea
Agreement by arguing that he committed an L and L while reducing the charge to
injury to child, so we’ll take that up on appeal and proceed forward as State v[.]
Wells allows us, but I wanted to make a record of that.
Thus, Harris did not ask for or obtain a ruling from the district court as to whether the State
breached the plea agreement, and the holding in Huntsman forecloses an argument the district
court knew about the issue and implicitly denied it. Without an adverse ruling, Harris cannot raise
his claim for the first time on appeal.
In his reply brief, Harris raises two arguments to support appellate review of his claim.
Harris asserts that his counsel’s statements constituted a valid objection and the district court
implicitly denied the motion, thereby obtaining an adverse ruling and preserving the claim for
appellate review. Alternatively, Harris argues that even if his counsel’s statements did not
constitute an objection, the error is preserved as a claim of fundamental error. The arguments fail
to persuade this Court.
State does not raise this waiver as an affirmative defense, this Court will not consider the issue on
appeal.
3
Defense counsel was referring to State v. Wills, 140 Idaho 773, 102 P.3d 380 (Ct. App.
2004).
4
First, Harris’s argument that his counsel’s statement to the district court was a legitimate,
contemporaneous objection is raised for the first time in his reply brief. This Court will not
consider arguments raised for the first time in an appellant’s reply brief. Suitts v. Nix, 141 Idaho
706, 708, 117 P.3d 120, 122 (2005) (“reviewing court looks only to the initial brief on appeal for
the issues presented because those are the arguments and authority to which the respondent has an
opportunity to respond in the respondent’s brief”). Second, in his initial brief, Harris fails to argue
whether the alleged breach of the plea agreement constituted fundamental error. Harris cites two
legal standards in his initial brief: first, a breach of a plea agreement constitutes fundamental error
but “fundamental error can still be harmless error”; and second, the harmless error test set forth in
Chapman v. California, 386 U.S. 18, 23 (1967). Despite listing these conflicting legal standards,
Harris neither articulates under which analytical rubric his claim falls nor provides argument
relative to that analysis. This is fatal to his claim, as a party waives an issue on appeal if either
authority or argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996).
Consequently, Harris failed to preserve the claim of whether the State breached the plea
agreement for appellate review. If Harris’s statement about the alleged breach constitutes a valid,
contemporaneous objection, Harris failed to obtain an adverse ruling for this Court to review. If
Harris’s statement is not a valid objection, Harris failed to address whether the alleged breach
constituted fundamental error in his initial brief. Because Harris failed to do either, we decline to
address his claim that the State breached the plea agreement.
B. The State Did Not Breach the Plea Agreement
Even if there had been an adverse ruling pertaining to the alleged prosecutorial misconduct,
the prosecutor did not breach the terms of the plea agreement during sentencing.
It is well established that when a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of the inducement or consideration,
such promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 262 (1971). Like a contract,
a valid plea agreement binds the State to perform the promised obligations. Puckett v. United
States, 556 U.S. 129, 137 (2009). The State’s failure to comply with its obligations constitutes a
breach of the agreement and entitles the defendant to appropriate relief. Id. As a remedy, the court
may order specific performance of the agreement or may permit the defendant to withdraw the
guilty plea. Santobello, 404 U.S. at 263; State v. Jones, 139 Idaho 299, 302, 77 P.3d 988, 991 (Ct.
App. 2003).
5
The prosecution’s obligation to recommend a sentence promised in a plea agreement does
not carry with it the obligation to make the recommendation enthusiastically. United States v.
Benchimol, 471 U.S. 453, 455 (1985); Jones, 139 Idaho at 302, 77 P.3d at 991. A prosecutor may
not circumvent a plea agreement, however, through words or actions that convey a reservation
about a promised recommendation, nor may a prosecutor impliedly disavow the recommendation
as something that the prosecutor no longer supports. Jones, 139 Idaho at 302, 77 P.3d at 991.
Although prosecutors need not use any particular form of expression in recommending an agreed
upon sentence, their overall conduct must be reasonably consistent with making such a
recommendation, rather than the reverse. Id.
The terms of the plea agreement required the State to reduce the charges against Harris to
three counts of possession of sexually exploitative material and one count of injury to child,
naming both victims in the injury to child charge. The plea agreement included the statutory
maximum penalty for each charge as ten years as designated in I.C. §§ 18-1507(3) and 18-1501,
respectively, for a total maximum possible sentence of forty years. The plea agreement included
no restrictions on the length of the prison sentence recommendation, specifically stating that the
“[p]arties stipulate to a prison sentence, but length is open for argument.” Thus, the State fulfilled
the terms of the plea agreement when it filed the second, superseding indictment reducing the
charges against Harris and could not breach the terms of the plea agreement by recommending the
district court impose a cumulative twenty-five-year sentence for the four charges.
Although Harris argues the prosecutor breached the terms of the plea agreement by
proceeding as if the district court was sentencing Harris on the original charges of lewd conduct,
this argument is without merit. The record reflects that the prosecutor argued for a sentence based
on the reduced charge of injury to child. When beginning his argument for the State’s sentencing
recommendation, the prosecutor stated:
As the Court knows from the Pretrial Settlement Offer, this is a stipulated
prison recommendation. And so when the Court’s deciding how long to send him
to prison, the way I see it there are 40 years here to work with: The three counts of
child pornography and the one count of lewd--excuse me, of injury to child.
In deciding upon a number, my thought was this, Judge: I think if you’re
going to start having sex with a 12-year-old girl, 12 years is a good place to start in
terms of the fixed sentence.
There is no evidence that the prosecutor’s singular reference to the word “lewd” was
anything more than an accidental misstatement which he immediately corrected. Therefore,
6
despite Harris’s assertions, the prosecutor did not argue that the district court was sentencing Harris
for lewd conduct simply by saying the word “lewd” during the State’s sentencing recommendation.
Second, Harris asserts the prosecutor breached the plea agreement by repeatedly
referencing that Harris had sex with and sexually abused the victims. Harris implicitly argues that
this conduct supports lewd conduct charges, but does not support the reduced injury to child
charge. This Court disagrees. In the original indictment, the State charged Harris with two counts
of lewd conduct “by having genital-genital, oral-genital, and/or manual-genital contact” with the
victims “with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires
of the defendant.” In the second, superseding indictment, to which Harris entered an Alford plea,
the State charged Harris with one count of injury to child by, under circumstances likely to produce
great bodily harm, “having genital-genital, oral-genital, and/or manual-genital contact” with the
victims “who were under the age of 16 at the time of the defendant’s conduct.” Thus, the
description of the physical contact that gave rise to both the original and the amended charges
remained the same, regardless of the charge.
Further, characterizing that physical contact as “sex” is how one victim described Harris’s
conduct during her grand jury testimony, which Harris relied on as the facts to establish his Alford
plea and how an officer characterized the conduct in his police report. Similarly, the prosecutor’s
limited reference to “sexual abuse,” which the prosecutor only used once to acknowledge that
Harris’s conduct with one of the named victims “didn’t evolve into the full-blown type of sexual
abuse that it did with” the other victim reflected how the victim described Harris’s conduct in her
victim impact statement and how an officer described the conduct in his police report. These
characterizations were reflected in various reports, and were in part, relied upon by Harris;
therefore, these were facts that the district court could properly consider. See State v. Helms, 130
Idaho 32, 35, 936 P.2d 230, 233 (Ct. App. 1997) (sentencing court may consider facts underlying
criminal charges); see also State v. Flowers, 150 Idaho 568, 574, 249 P.3d 367, 373 (2011)
(“Absent a provision in the plea agreement expressly limiting the information that the State can
present, it can present any relevant information that could assist the court.”). Thus, the
prosecutor’s description of the physical contact giving rise to the injury to child charge did not
breach the plea agreement.
Finally, Harris alleges the State breached the plea agreement because the prosecutor based
the State’s recommended sentence “almost entirely” on the factual description of the physical
7
contact described in Harris’s injury to child charge. Because the injury to child charge carried a
maximum sentence of ten years, Harris argues the State’s recommended sentence of twenty-five
years, with twelve years determinate, constituted an implicit breach.
However, this allegation is not supported by the record. During the sentencing hearing,
the prosecutor noted that based on the four charges to which Harris was being sentenced, the
district court could impose a statutory maximum period of incarceration of forty years. Then, the
prosecutor argued for a twelve-year determinate sentence, stating “[i]n deciding upon a number,
my thought was this, Judge: I think if you’re going to start having sex with a 12-year-old girl, 12
years is a good place to start in terms of the fixed sentence.” The prosecutor reasoned that the
facts of all four charges support the State’s recommended sentence: Harris “did this to these two
little girls and he amassed quite the treasure trove of child pornography. The Court is aware from
the [presentence investigation report] that he had thousands of images of little boys and little girls
engaged in unspeakable acts.” When reviewed in whole, the record indicates that the prosecutor
described what sentence the State believed was appropriate given all four charges. Therefore, the
recommended sentence did not breach the plea agreement.
The plea agreement did not limit what sentencing recommendations each party could make,
the district court could consider the physical conduct underlying the injury to child charge, and the
prosecutor based the State’s sentencing recommendation on the four charges to which Harris was
being sentenced. Accordingly, the State did not breach the terms of the plea agreement during the
sentencing hearing.
C. The District Court’s Sentence Did Not Constitute an Abuse of Discretion
Harris argues the district court abused its discretion by imposing excessive sentences.
Specifically, Harris argues the district court sentenced him as if he pled guilty to the original lewd
conduct charges and did not properly consider mitigating factors like his lack of criminal history,
numerous letters of support, low risk of recidivism, and acceptance of accountability for possession
of sexually exploitative material.
Where an appellant contends that the sentencing court imposed an excessively harsh
sentence, we conduct an independent review of the record, having regard for the nature of the
offense, the character of the offender, and the protection of the public interest. State v. Reinke,
103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When reviewing the length of a
8
sentence, we consider the defendant’s entire sentence. State v. Oliver, 144 Idaho 722, 726, 170
P.3d 387, 391 (2007).
First, there is no evidence in the record to support Harris’s allegation that the district court
sentenced him as if he pled guilty to the original lewd conduct charge. The district court never
mentioned the lewd conduct charge; instead the court acknowledged that the injury to child charge
was serious in light of the conduct alleged, accurately stated the maximum penalty for the felony
injury to child charge, and imposed a sentence within the statutory guidelines for the injury to child
charge. Although the district court recognized that the conduct underlying both the lewd conduct
charge and the injury to child charge was the same, this does not indicate that the court was
sentencing Harris for lewd conduct. Instead, it was an acknowledgement of what we have
previously recognized; Harris entered an Alford plea to the crime of felony injury to child “by
having genital-genital, oral-genital, and/or manual-genital contact” with the victims and the district
court could properly consider that conduct when imposing the sentence.
Second, the record shows the district court considered relevant mitigating factors in its
sentencing decision. The district court stated that it considers both the circumstances of the
individual offense and the character of the individual defendant when making a sentencing
determination. The district court recognized the conduct that gave rise to the injury to child charge
occurred many years ago and Harris has positive character traits, evidenced by his lack of a
significant criminal record and the number of people in his life who support him, vouch for his
character, and testify to his good nature. But, the district court also recognized the severity of the
charges, the lifelong impact Harris’s actions would have upon the victims, and the impact of
possession of sexually exploitative material which supports “a whole industry that abuses the
children” shown in the photographs.
Third, Harris argues that when imposing sentence the district court did not consider his low
risk of recidivism referenced in his presentence investigation report (PSI), average risk of
recidivism and recommendation to participate in sex-offender treatment referenced in his
psychosexual evaluation (PSE), and acceptance of accountability for possession of sexually
exploitative material. When these factors, along with Harris’s lack of criminal record, steady
employment history, and community support are properly considered, Harris argues the district
court’s twenty-year cumulative sentence, with eight years determinate, is excessive.
9
The district court was sentencing Harris for charges that involved sexual conduct with two
minor victims and possession of sexually exploitative material of other children. The testimony
of the victims from the grand jury proceedings and the statement read by a victim advocate at the
sentencing hearing detail the years of Harris’s sexual conduct towards the victims, beginning when
the victims were eleven and twelve years old. When law enforcement searched Harris’s home,
they found more than 2,900 images4 of sexually exploitative material and internet searches
involving teens and pornography. The PSE found that Harris acknowledged viewing the “barely
legal” genre and described being sexually attracted to females that are between the ages of sixteen
and fifty. Ultimately, the PSE found that for nearly twenty years, Harris has shown a pattern of
strong sexual interests towards adolescent females.
Although the PSI placed Harris at a low risk to reoffend because of protective factors like
his employment history, financial stability, support systems, accommodations, and sobriety, it also
stated that Harris’s PSE was not made available prior to the submission of the PSI and therefore
the investigator declined to make a sentencing recommendation. The PSE gave specific and
additional context to Harris’s sexual proclivities and his likelihood of sexual recidivism, which
included insight about Harris’s lack of candor and accountability during the evaluation. The PSE
noted that Harris continued to deny some behaviors that had contradictory evidence in the record,
like allowing the victims to drink alcohol in his home and seeking out sexually exploitative
material.
Both the PSI and the PSE had specific examples of Harris’s lack of accountability,
including his perception that the charges were “unfair” and that he did not understand why the
victims accused him of the underlying conduct. Further, Harris denied that he ever sought out
sexually exploitative material, despite the police report indicating that Harris possessed over 2,900
such images. The PSE found possession of such a large amount of sexually exploitative material
was “far from unintentional.” Ultimately, the PSE placed Harris in the moderate category of
concern and categorized him as an average risk for sexual recidivism. The PSE found Harris had
a “sexual preoccupation” and his pornography habits suggest “he still has a strong sexual interest
in adolescent females,” raising concern about Harris seeking out sexually exploitative material or
4
Harris argued at sentencing that “only 300 of the images were actually flagged as child
pornography. The remaining were flagged as possible child pornography.” This distinction is
irrelevant to the opinion.
10
opportunistic situations with pubescent and prepubescent females in the future. Further, because
of Harris’s lack of candor and lack of accountability, the PSE had concern about his amenability
to sexual-offender treatment, although it noted that generally any individual may improve his
amenability over time.
Although Harris argues on appeal that he took accountability for possession of sexually
exploitative material, the PSE found that “[t]hroughout the interview, it appeared Mr. Harris would
have some type of excuse to explain away his behaviors” and “minimized his involvement with
the index offenses.” The evaluator also strongly suspected “there is a lot more to [Harris’s] sexual
arousal than he is willing to disclose.” Harris further demonstrated a lack of accountability at the
sentencing hearing by implying the pornographic images just appeared on his screen, stating: “I
admit that I have--had a porn addiction at one time. I have seen images of that nature. They come
up when you’re surfing the web.” Therefore, the record undermines Harris’s claim on appeal that
he accepted accountability for the charged offenses.
A complete review of the record provides ample support for the sentences imposed by the
district court, and we cannot say that the cumulative sentence of twenty years, with eight years
determinate, is an abuse of discretion.
IV.
CONCLUSION
Harris failed to obtain an adverse ruling from the district court and failed to raise a claim
of fundamental error in his opening brief, thereby failing to preserve his claim on appeal that the
State breached the plea agreement through the prosecutor’s sentencing recommendation. Even if
the claim was preserved, the State did not breach the terms of the plea agreement through the
prosecutor’s sentencing recommendation to the district court. Further, the district court’s
sentences do not constitute an abuse of discretion. Accordingly, the judgment of conviction and
sentences are affirmed.
Judge GRATTON and Judge LORELLO CONCUR.
11