State v. Cates

WALTERS, Chief Judge.

Gary Cates was found guilty by a jury of aggravated battery, I.C. § 18-907, and of using a firearm in the commission of the battery, I.C. § 19-2520. He received an indeterminate six-year sentence for the battery, enhanced by an indeterminate three-year term on the firearm charge. On appeal, Cates raises the following issues. He contends the evidence was insufficient to support the jury’s verdict finding him guilty of aggravated battery and guilty of using a firearm in the commission of the battery. Next, he asserts that he was deprived of a fair trial when the prosecutor— without advance disclosure to the defense — made use of a presentence report prepared in another case against a companion defendant. Finally, Cates argues that the district court’s sentencing discretion was abused by imposing an unreasonable sentence. We affirm.

I

We turn first to the question of the sufficiency of the evidence to support the jury’s verdict. In this regard, our review is limited in scope. We will not set aside a jury verdict if there is substantial evidence upon which any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Filson, 101 Idaho 381, 613 P.2d 938 (1980). Nor will we substitute our judgment for that of the jury as to the credibility of witnesses, the weight of the testimony, and the reasonable inferences to be drawn from the evidence. State v. Campbell, 104 Idaho 705, 662 P.2d 1149 (Ct.App.1983). Moreover, on appeal, we view the evidence in the light most favorable to the respondent. State v. Fenley, 103 Idaho 199, 646 P.2d 441 (Ct.App.1982). Accordingly, we state the pertinent facts to be as follows.

In May, 1985, Cates and another individual, Ricky Farmer, went to a residence where a man and his teen-age fiance were living. Cates intended to confront the man with allegations regarding possible molestation of Cates’ three and one-half-year-old daughter. When Cates found the man was not present, he forced his way into the apartment, seized the fiance (hereinafter “the victim”) by the back of the head and instructed Farmer to bind her hands. Cates then proceeded to question the victim concerning her boyfriend’s whereabouts, the time he would return, and about contact with Cates’ daughter. According to the victim, at some time during this interrogation, Cates pulled out a handgun and briefly displayed it to her. Cates described the weapon to her as a “Black Powder 44” and said that he would shoot her with the weapon if she attempted to warn her boyfriend when he returned. During the questioning, Cates became increasingly agitated and slapped the victim open handed, across her face.

Cates later blindfolded the victim and moved her from the living room to the apartment’s bedroom. She was then partially undressed by Cates and retied spread-eagle across the bed. Cates proceeded, while apparently still clothed, to sit atop the victim and threaten her with rape. Cates then got up and left the bedroom. The victim testified she heard Cates instruct Farmer to keep watch for the boyfriend’s possible arrival. According to the victim, Cates then returned to the bedroom. The victim heard him remove his clothes, felt him push a finger into her vagina, and then felt him engage in sexual intercourse with her. She testified that she initially resisted these physical contacts, but that Cates “kept saying, ‘Would you rather die?’ ” After the alleged intercourse, Cates covered her with a blanket, and left the apartment with Farmer. Friends, arriving to visit, heard the victim’s yells for help and released her. Shortly after, she went to the police and Cates was arrested on a charge of rape.

At trial, Cates denied the victim’s allegation of rape. He eventually was found not guilty of rape but guilty of a lesser included offense of aggravated battery. As noted, the jury also found that Cates had used a firearm while committing the battery. On appeal, Cates questions the sufficiency of the evidence to support his conviction in two respects. First, he contends the evidence fails to show that any deadly weapon was used in the commission of a battery, which would elevate the crime to an aggravated battery. Next, he asserts that if a firearm was used in the incident, the state failed to prove that the weapon was “operable,” as a prerequisite to permitting enhancement of a sentence under I.C. § 19-2520.

We first consider the aggravated battery issue. The elements of the crime of battery are defined in I.C. § 18-903,. which provides in part:

A battery is any:

(a) Willful and unlawful use of force or violence upon the person of another; or

(b) Actual, intentional and unlawful touching or striking of another person against the will of the other; or

(c) Unlawfully and intentionally causing bodily harm to an individual.

A battery in turn can be elevated to the offense of aggravated battery under the circumstances defined in I.C. § 18-907:

A person commits aggravated battery who, in committing battery:

(a) Causes great bodily harm, permanent disability or permanent disfigurement; or

(b) Uses a deadly weapon or instrument; or

(c) Uses any vitriol, corrosive acid, or a caustic chemical of any nature; or

(d) Uses any poison or other noxious or destructive substance or liquid.

Extracting from the statutes the elements of aggravated battery which appeared applicable to the evidence introduced in this case, the trial judge instructed the jury that — in order to sustain a charge of aggravated battery — the state was required to prove beyond a reasonable doubt that the defendant wilfully, unlawfully, and intentionally used force or violence upon the victim, and, in so doing, used a deadly weapon.

Although Cates and his companion, Farmer, testified that Cates did not display any firearm during the battery of the victim, the victim testified to the contrary. The jury evidently chose to believe the victim on this point. The jury also implicitly concluded that the weapon was “use[dj” to commit the battery. It will be recalled that, according to the victim, Cates displayed the weapon during the interrogation in which she was slapped, and he threatened her with death during the subsequent physical encounter in the bedroom. Thus, the gun threat was not an isolated event; it had a close factual nexus to each physical incident constituting a battery. Although the weapon was not the instrument of physical contact with the victim, the jury reasonably could have found that the weapon was employed to intimidate the victim, causing her to endure physical contacts which she might otherwise have resisted or attempted to evade during Cates’ physical contact with her. Under these circumstances, we uphold the jury’s determination that deadly weapon was “use[d]” within the meaning of the aggravated battery statute.

Next we consider Cates’ argument that the state failed to prove the firearm was operable. According to the victim, Cates expressed a threat to shoot the victim when he displayed the gun. We have held that circumstantial evidence such as an explicit threat by an individual to fire a weapon is sufficient to enable a jury to reasonably infer that the gun could be fired. State v. Stedtfeld, 108 Idaho 695, 701 P.2d 315 (Ct.App.1985). See also, State v. Metzgar, 109 Idaho 732, 710 P.2d 642 (Ct.App.1986) (review denied); State v. Cootz, 110 Idaho 807, 718 P.2d 1245 (Ct.App.1986) (review denied). Accordingly, we uphold the jury’s implicit finding here, that the gun displayed by Cates was operable.

II

We now turn to the issue concerning the use by the state of a presentence report prepared in another case. Cates asserts that the use of this report came as a surprise and thereby denied him a fair trial.

The use of this report came about as follows. During Cates’ trial, his companion on the day in question, Ricky Farmer, was called as a rebuttal witness by the state. The prosecutor elicited from Farmer his version of the facts surrounding the incident with the victim. Farmer said he could not remember a gun being displayed. The prosecutor then asked the jury to be excused and proceeded to voir dire Farmer regarding statements Farmer previously had made to an investigator in his own case, contradicting his testimony in Cates’ trial. The prosecution requested the judge to allow this evidence for two purposes — either to impeach Farmer on the ground of prior inconsistent statements¹ or to refresh Farmer’s memory. Cates objected solely on the grounds that the prior statements were unsworn, that they were unreliable, and that the presentence report in Farmer’s case was a confidential document, not to be used without a prior order from the court permitting its use. See I.C.R. 32(h). The court overruled Cates’ objection and allowed the prosecutor to question Farmer in the jury’s presence.

The presentence report was not introduced into evidence as an exhibit. Instead, the prosecutor asked Farmer if he had made certain statements to “law enforcement authorities.” Referring to Cates, Farmer had stated that “[Cates] had a gun in his pants and he showed it to her ... I wasn’t going to do anything because he was out of his mind and he had that gun____ I wasn’t going to push my luck and have him shoot me.” Farmer admitted making the statements, but he also was permitted to explain why the statements were made. He testified that he had simply told the authorities what they wanted to hear — that Cates had carried a gun.

On appeal, Cates asserts that Farmer’s presentence report should not have been available in light of its confidential nature, without a prior order from the court releasing it for use during Cates’ trial. He also contends that the state should have been prohibited from using the report because the prosecutor had failed before trial to disclose his intent to use the report, depriving Cates of an opportunity to prepare and develop an adequate defense to the statements extracted from the report.

In our view, Cates’ contentions are without merit. In the hearing held outside the presence of the jury, the court was informed of the nature of the report and the use intended by the state. The court entertained arguments from Cates’ counsel against the use of the report. The court determined that the report should be utilized. We conclude that the court’s action comported with the restrictions of I.C.R. 32(h).²

Cates' second argument, focusing on lack of pretrial disclosure, was not made to the district court. It has been made for the first time on appeal. Accordingly, our review is limited to determining whether there was “fundamental error” — that is, an error so profound that it goes to the foundation of a defendant’s rights and destroys the fairness of the trial. State v. Bingham, 116 Idaho 415, 776 P.2d 424 (1989). We find no error of such dimension here. Although the presentence report was not identified in pretrial discovery, Farmer was listed as a potential state’s witness. Cates did not follow up with any specific request for access to a presentence report. Moreover, Farmer’s prior statements were inculpatory, not exculpatory, and therefore were not subject to automatic disclosure under I.C.R. 16(a) or any constitutional standard. Finally, when the prosecutor announced his intention to ask Farmer about the prior statements, Cates did not seek a continuance to review the presentence report more fully or to contact the presentence investigator. Considering all these circumstances, we conclude that the error, if any, in belated disclosure of Farmer’s prior statements was not fundamental.

Ill

We now turn to Cates’ assertion that his sentence, for an aggregate indeterminate period of nine years, is excessive. Because the crime in this case was committed prior to the Unified Sentencing Act, 1.C. § 19-2513 (effective February 1, 1987), our standard of review is governed entirely by State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982). In that case, we said that, absent a contrary statute or other indication in the record, we will treat one-third of an indeterminate sentence as the measure of confinement. Thus, for the purpose of appellate review, but not as a prediction of parole, we will treat Cates’ duration of confinement as one-third of his nine-year sentence, or three years. The question is whether confinement for at least this period of time is reasonable.

[A] term of confinement is reasonable to the extent it appears necessary, at the time of sentencing, 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. A sentence of confinement longer than necessary for these purposes is unreasonable. Such determinations cannot be made with precision. In deference to the discretionary authority vested in Idaho’s trial courts, we will not substitute our view for that of a sentencing judge where reasonable minds might differ. An appellant must show that, under any reasonable view of the facts, his sentence was excessive in light of the foregoing criteria.

Id. at 568, 650 P.2d at 710. In applying the Toohill criteria, we conduct an independent examination of the record, focusing on the nature of the offense and the character of the offender. State v. Reinke, 103 Idaho 771, 653 P.2d 1183 (Ct.App.1982).

The facts of the crime have been sufficiently set forth above and need not be repeated. As to Cates’ character, the record shows that he has a prior felony record for possession and delivery of controlled substances, for interstate transportation of stolen property and for second degree burglary. He has an honorable discharge from military service and, prior to sentencing, remained employed on a fairly steady basis. Recognizing that Cates had “value to society,” the court decided that an indeterminate, rather than a fixed, sentence should be imposed. The court concluded that Cates’ actions in “terrorizing” the victim were “absolutely outrageous,” and required the imposition of a prison sentence. As noted, the court settled on six years for the aggravated battery, enhanced by three years for the use of a firearm. Having reviewed the full record and having considered the sentence review criteria set forth in Toohill, we conclude the district court did not abuse its discretion.

The judgment of conviction, including the sentence, is affirmed.

BURNETT, J., concurs.

2 . The rule provides in part: "After use in the sentencing procedure, the presentence report shall be sealed by court order, and thereafter cannot be opened without a court order authorizing release of the report or parts thereof to a specific agency or individual."

1 . I.R.E. 607 provides that the credibility of a witness may be attacked by any party, including . the party calling the witness.