State v. Ahmad

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 49127
STATE OF IDAHO, )
) Filed: February 28, 2023
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
MOHAMAD ALI B. SALEH AHMAD, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. James Cawthon, District Judge.
Judgment of convictions for sexual abuse of a child under the age of sixteen years
and infamous crime against nature, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Jacob L. Westerfield,
Deputy Appellate Public Defender, Boise, for appellant.
Hon. Raúl R. Labrador, Attorney General; Kenneth K. Jorgensen, Deputy Attorney
General, Boise, for respondent.
________________________________________________
BRAILSFORD, Judge
Mohamad Ali B. Saleh Ahmad appeals from a judgment of conviction for sexual abuse of
a child under the age of sixteen years, Idaho Code § 18-1506(1)(d) (2008), and for infamous crime
against nature, I.C. §§ 18-6605 (1972), 18-6606 (1972).1 Ahmad challenges the sufficiency of the
evidence to support the conviction for infamous crime against nature and argues the district court
committed fundamental error when instructing the jury regarding sexual abuse of a child. We
affirm.
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Since the State charged Ahmad, the legislature has made various amendments and changes
to the statutes under which it charged him. We apply the versions of the statutes in effect when
Ahmad was charged.
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I.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2020, the State charged Ahmad with one count of sexual abuse of a child
under the age of sixteen years and one count of infamous crime against nature. The case proceeded
to a jury trial. During this trial, the State presented evidence showing that Jacinda invited several
friends to her apartment, including Ahmad, Marlee, Samantha, and Elizabeth. Later in the evening,
Jacinda, Marlee, Samantha, and Elizabeth left the apartment to go swimming. At that time, Marlee
left her iPhone at the apartment on the couch. While the others went swimming, Ahmad remained
in the apartment with Samantha’s twenty-month-old son,2 L.S., and Jacinda’s female dog.
The following day, Marlee discovered numerous photos on her iPhone from the prior
evening, which she had not taken. The photos depict Jacinda’s living room and include “live”
photos, meaning they are “about a two-second video.” Many of the photos show Ahmad’s
exposed, erect penis. Some of the photos include L.S.’s feet and the dog. Other photos show, for
example, Ahmad grabbing the dog, lifting her tail, pulling her hindquarters to his lap, and holding
her on his lap where his penis was exposed. Marlee testified the photos look like L.S. had taken
them.
After discovering the photos, Jacinda contacted the police. When Marlee, Jacinda and
Samantha confronted Ahmad, he admitted that he exposed his penis and said that L.S. had been
playing on the couch with a phone and that he had taken the phone away from L.S. Samantha,
L.S.’s mother, testified that she has an iPhone; L.S. is “very tech-savvy”; and L.S. knows how to
work the iPhone, including skipping ads, picking videos, and taking photos.
The jury found Ahmad guilty of both charges, and Ahmad timely appeals.
II.
ANALYSIS
A. Sufficiency of Evidence for Infamous Crime against Nature
Ahmad challenges the sufficiency of evidence to support the jury’s finding of guilt for
infamous crime against nature. Appellate review of the sufficiency of the evidence is limited in
scope. A finding of guilt will not be overturned on appeal where there is substantial evidence upon
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Although the parties and trial witnesses refer to L.S. as a one-year-old, the testimony shows
that the conduct giving rise to the charges against Ahmad occurred in September 2020 and that
L.S. was born in February 2019, making him approximately twenty-months old at the time.
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which a reasonable trier of fact could have found that the prosecution sustained its burden of
proving the essential elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131
Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822
P.2d 998, 1001 (Ct. App. 1991). We will not substitute our view for that of the trier of fact as to
the credibility of the witnesses, the weight to be given to the testimony, and the reasonable
inferences to be drawn from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v.
Decker, 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the
evidence in the light most favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d
at 1101; Knutson, 121 Idaho at 104, 822 P.2d at 1001.
Substantial evidence may exist even when the evidence presented is solely circumstantial
or when there is conflicting evidence. State v. Severson, 147 Idaho 694, 712, 215 P.3d 414, 432
(2009); State v. Stevens, 93 Idaho 48, 50-51, 454 P.2d 945, 947-48 (1969). In fact, even when
circumstantial evidence could be interpreted consistently with a finding of innocence, it will be
sufficient to uphold a guilty verdict when it also gives rise to reasonable inferences of guilt.
Severson, 147 Idaho at 712, 215 P.3d at 432; State v. Slawson, 124 Idaho 753, 757, 864 P.2d 199,
203 (Ct. App. 1993).
For the jury to find Ahmad guilty of infamous crime against nature, the State was required
to prove he sexually penetrated the dog. “Any sexual penetration, however slight, is sufficient to
complete the crime against nature.” I.C. § 18-6606. On appeal, Ahmad argues “no rational trier
of fact could have found [he] penetrated [the dog] beyond a reasonable doubt.” Specifically,
Ahmad notes the absence of any direct evidence, including witnesses who “personally observed
the alleged conduct,” exhibits “directly showing” penetration, “medical or veterinarian tests” for
the dog, or “signs of blood or other bodily fluids.” Further, Ahmad argues “Idaho’s appellate
courts have not addressed whether photographs that do not directly show an alleged criminal act
are sufficient in the absence of any further corroborating evidence.”
Although Idaho appellate courts have not addressed the exact issue of whether direct
photographic evidence is necessary to support a conviction for infamous crime against nature, the
Idaho Supreme Court has previously held that circumstantial evidence of slight penetration is
sufficient to support such a conviction. In State v. Gomez-Alas, 167 Idaho 857, 477 P.3d 911(2020), the Court considered whether sufficient evidence supported that Gomez-Alas’ tongue
penetrated the victim’s vaginal opening. Id. at 863, 477 P.3d at 917. The Court noted that although
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there was “no direct evidence” of the act, “a reasonable person could make the inference” based
on the circumstantial evidence that the act occurred. Id. at 864, 477 P.3d at 918. The Court
concluded that “in making this inference, a reasonable jury could easily find penetration beyond a
reasonable doubt because the law only requires ‘slight penetration’ to complete the crime against
nature.” Id.
As in Gomez-Alas, a review of the record in this case shows a reasonable person could
infer, based on the photos admitted into evidence, that Ahmad sexually penetrated the dog. In
making this inference, a reasonable jury could have found beyond a reasonable doubt that Ahmad
at least slightly sexually penetrated the dog. Accordingly, we conclude sufficient evidence
supports the conviction for infamous crime against nature.
B. Fundamental Error in Jury Instruction for Sexual Abuse of a Child
For the first time on appeal, Ahmad contends the district court erred in instructing the jury
that it could convict him under I.C. § 18-1506(1)(d) for sexual abuse of a child under sixteen years
for having induced, caused, or permitted L.S. to witness genital-anal touching between Ahmad and
the dog. 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). When a defendant alleges, however,
that a constitutional error occurred at trial and the alleged error was not followed by a
contemporaneous objection, the claim of error must be reviewed under the fundamental error
doctrine. State v. Miller, 165 Idaho 115, 119, 443 P.3d 129, 133 (2019). In order to obtain relief
under the fundamental error doctrine, the defendant must demonstrate three things. First, the
defendant must show that one or more of the defendant’s unwaived constitutional rights were
violated. Id. Second, the error must be clear and obvious, meaning the record must demonstrate
evidence of the error and evidence as to whether or not trial counsel made a tactical decision in
failing to object. Id. Third, the defendant must demonstrate that the error affected the defendant’s
substantial rights, which means the error identified in the first and second prongs of the test actually
affected the outcome of the trial. Id. at 119-20, 443 P.3d at 133-34.
Where the defendant failed to object to a jury instruction before the trial court, as in this
case, the jury instruction is reviewed for fundamental error on appeal. State v. Medina, 165 Idaho
501, 507, 447 P.3d 949, 955 (2019). The initial inquiry is whether the jury instruction was
erroneous at all. Id. Whether the jury has been properly instructed is a question of law over which
we exercise free review. Severson, 147 Idaho at 710, 215 P.3d at 430. When reviewing jury
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instructions, we ask whether the instructions as a whole, and not individually, fairly and accurately
reflect applicable law. State v. Bowman, 124 Idaho 936, 942, 866 P.2d 193, 199 (Ct. App. 1993).
In relevant part, I.C. § 18-1506(1)(d) provides that “it is a felony for any person eighteen
(18) years of age of older, with the intent to gratify the lust, passions, or sexual desire of the actor,
minor child or third party to . . . [i]nduce, cause or permit a minor child to witness an act of sexual
conduct.” “Sexual conduct” in the context of this statute is defined as:
[H]uman masturbation, sexual intercourse, sadomasochistic abuse, or any touching
of the genitals or pubic areas of the human male or female, or the breasts of the
female, whether alone or between members of the same or opposite sex or between
humans and animals in an act of apparent sexual stimulation or gratification.
Idaho Code § 18-1506(4). In this case, the district court instructed the jury, in relevant part, that
in order for the jury to find Ahmad guilty of sexual abuse of a child, the State had to prove
“[Ahmad] induced, caused or permitted [L.S.] to witness an act of sexual conduct, to wit: where
[Ahmad] rubbed his erect penis on the anus and/or genitals of a dog and/or penetrated the anus
and/or genitals of a dog.”
On appeal, Ahmad argues the district court committed fundamental error by instructing the
jury that it could find him guilty of sexual abuse of a child “if [Ahmad] induced, caused, or
permitted L.S. to witness genital-anal touching between [Ahmad] and [the] dog as an act of sexual
conduct.” In support, Ahmad asserts I.C. § 18-1506(4) “does not include genital-anal touching as
an act of sexual conduct.” This Court exercises free review over the application and construction
of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the
language of a statute is plain and unambiguous, this Court must give effect to the statute as written,
without engaging in statutory construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214,
219 (1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language
of the statute is to be given its plain, obvious, and rational meaning. Burnight, 132 Idaho at 659,
978 P.2d at 219. If the language is clear and unambiguous, there is no occasion for the court to
resort to legislative history or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d
at 67.
Contrary to Ahmad’s assertion, the plain language of I.C. § 18-1506(4) defines sexual
conduct to include the genital-anal touching between a dog and a human. Specifically, the statute
defines “sexual conduct” to include “any touching of the genitals . . . of the human male or
female . . . between humans and animals in an act of apparent sexual stimulation or gratification.”
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I.C. § 18-1506(4). Accordingly, the district court did not erroneously instruct the jury, and
Ahmad’s assertion of fundamental error fails.
III.
CONCLUSION
Sufficient evidence supports the conviction for infamous crime against nature, and the
district court did not erroneously instruct the jury on the crime of sexual abuse of a minor.
Accordingly, we affirm the judgments of conviction for sexual abuse of a child under the age of
sixteen years and infamous crime against nature.
Chief Judge LORELLO and Judge HUSKEY CONCUR.
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