State v. Joseph Michael Winegar

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 42507
STATE OF IDAHO, ) 2016 Unpublished Opinion No. 321
)
Plaintiff-Respondent, ) Filed: January 14, 2016
)
v. ) Stephen W. Kenyon, Clerk
)
JOSEPH MICHAEL WINEGAR, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Patrick H. Owen, District Judge.
Judgment of conviction for felony domestic violence in the presence of a child,
felony attempted strangulation, and misdemeanor intentional destruction of a
telecommunication device, affirmed.
Sara B. Thomas, State Appellate Public Defender; Eric D. Fredericksen, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
________________________________________________
GUTIERREZ, Judge
Joseph Michael Winegar appeals from his judgment of conviction for felony domestic
violence in the presence of a child, felony attempted strangulation, and misdemeanor intentional
destruction of a telecommunication device. Specifically, he asserts that the district court
committed reversible error by allowing the State to introduce inadmissible evidence. For the
reasons set forth below, we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Winegar and the victim, Winegar’s girlfriend, were involved in a domestic altercation in
the presence of their two-year-old daughter. The State charged Winegar with domestic violence
in the presence of a child, Idaho Code §§ 18-903(a), -918(2), -918(4); attempted strangulation,
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I.C. § 18-923; and intentional destruction of a telecommunication line and/or telecommunication
device, I.C. § 18-6810. A grand jury indicted Winegar on those charges. Before trial, the State
filed an amended information, omitting the attempted strangulation charge. The case proceeded
to a jury trial.
At trial, on direct examination, the prosecutor asked the victim about the day of the
altercation.
PROSECUTOR: How were things going that day?
WITNESS: That day, not good.
PROSECUTOR: Were you arguing?
WITNESS: Very much so.
PROSECUTOR: What sort of things were you arguing about?
WITNESS: What he had did to me the night before.
PROSECUTOR: What had he done to you the night before?
DEFENSE: Your Honor, I would object. Can we approach?
COURT: You may.
Both parties then had a bench conference with the judge, off the record. When the conference
ended, the prosecutor resumed, on the record.
PROSECUTOR: Your Honor, would you like me to ask the question again?
COURT: Yes, go ahead.
PROSECUTOR: Okay. And what had happened the night before?
WITNESS: He wanted to have sex and I didn't, and so it became very,
very forceful.
PROSECUTOR: Okay. And the next day, were you upset about that?
WITNESS: I was liv[id].
The jury found Winegar guilty of both charges. Winegar timely appeals.
II.
ANALYSIS
Winegar argues that the district court improperly admitted testimonial evidence of an
alleged prior sexual assault against the victim. Specifically, Winegar contends that the victim’s
testimony was inadmissible as irrelevant, unfairly prejudicial, and improper character evidence.
Idaho Rules of Evidence 401, 402, 403, 404. The State argues that Winegar’s claim that the
district court erred is not preserved for appellate consideration. Because that issue is dispositive,
we do not address Winegar’s other arguments.
During the State’s direct examination of the victim, Winegar objected to the State’s
question regarding what Winegar had done to the victim the night before. Winegar gave no
grounds for his objection, but instead asked for permission to approach the bench. The record
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does not indicate what transpired between the parties and the judge during this time. After the
proceeding went back on the record, the State asked the victim the same question to which
Winegar had previously objected. Based on the court’s allowance of the question after the
objection and bench conference, we can imply that the court overruled Winegar’s objection. See
State v. Miller, 157 Idaho 838, 841-42, 340 P.3d 1154, 1157-58 (Ct. App. 2014) (holding issue
was preserved where judge’s allowance of testimony after objection implied adverse ruling).
However, for an objection to be preserved for appellate review, either the specific ground
for the objection must be stated or it must be apparent from the context. State v. Almaraz, 154
Idaho 584, 602, 301 P.3d 242, 260 (2013). The trial transcript reveals that Winegar did not
specify any grounds for his objection, instead stating only, “Your Honor, I would object. Can we
approach?” In his briefing on appeal, Winegar does not advance any evidence or argument as to
what grounds (if any) he established for his objection during the bench conference. See State v.
Murinko, 108 Idaho 872, 873, 702 P.2d 910, 911 (Ct. App. 1985) (holding that appellant must
provide a sufficient record to substantiate claims on appeal). In the absence of such evidence, we
will not presume the court erred. State v. Beason, 119 Idaho 103, 105, 803 P.2d 1009, 1011 (Ct.
App. 1991).
Moreover, Winegar neither argues nor provides any authority as to why the basis for the
objection is apparent from the context.1 See State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966,
970 (1996) (holding a party waives an issue on appeal if either authority or argument is lacking).
We conclude that Winegar’s unspecific objection was not sufficient to preserve his claim, and
his lack of argument waives the issue for further consideration.
III.
CONCLUSION
Winegar’s unspecific objection at the district court level did not preserve the issue for
appellate review. Therefore, we affirm Winegar’s judgment of conviction.
Judge GRATTON and Judge HUSKEY CONCUR.
1
Winegar did not file a reply brief in response to the State’s brief, which argued that the
issue was not preserved for appellate consideration.
3