State v. Jones

154 Idaho 412

299 P.3d 219

STATE of Idaho, Plaintiff–Respondent,

v.Russell G. JONES, Defendant–Appellant.

No. 39519.

Supreme Court of Idaho, Boise, January 2013 Term.

April 1, 2013.

Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Sarah E. Tompkins argued.

Honorable Lawrence G. Wasden, Attorney General of Idaho, Boise, for respondent. Kenneth K. Jorgensen argued.

J. JONES, Justice.

Russell G. Jones appealed his conviction by an Elmore County jury on two counts of rape. The case was initially heard by the Idaho Court of Appeals, which affirmed on one count and reversed on the second.¹ Jones sought review, which we granted in order to consider the force and resistance necessary with respect to a charge of forcible rape.

I.FACTUAL AND PROCEDURAL HISTORY

In the spring of 2008, Jones, Craig Carpenter, and the victim, A.S., were longtime friends. Carpenter and A.S. were engaged and had children together but, unbeknownst to Carpenter, Jones and A.S. had been sexually involved for approximately four years. On May 22, 2008, after spending the night together in Jackpot, Nevada, A.S. and Jones drove back to Idaho and decided they would end their affair. But despite this, they returned to A.S.'s apartment and engaged in consensual sex that morning.

Afterwards, A.S. went to the bathroom and then returned to the bedroom, where Jones was looking at pornographic material on the computer. Jones sat next to A.S. on the bed and started touching her, and she responded by telling him that "I thought we had decided that the time before [ ] was the last time and it wasn't going to happen anymore." A.S. stated that at that point:

I was laying on my stomach on the bed, and [Jones] got behind me. And I wasn't sure what he was doing, and I got up on my elbows to see what he was doing, and he was undoing his pants.... I told him, no, that I wasn't going to do this, and I looked back down, and that's when he leaned forward, and I was pushed down, like this, to where I couldn't get up, and he started having sex with me.

A.S. clarified that when she stated she was pushed down "like this" she meant that Jones "leaned forward to where his body was pushing on [hers]" and that her "hands were underneath [her] and she couldn't turn around." Jones then moved A.S.'s underwear to the side and had intercourse with her, while she "kept yelling at him and pleading for him to stop and please quit," which he ignored. Jones apologized to A.S. afterwards, asked her if she was okay, and admitted that he "lost control." He stated that if A.S. "wanted to press charges that [she] could because he was out of line." After Jones eventually left, A.S. contacted the Boise State University Women's Center. She told a counselor that she had been raped and was advised to call the police, which she did not do. Thereafter, A.S. continued to be in contact with Jones and subsequently went to Jackpot with him again.

On May 27, Jones went to A.S.'s apartment to watch movies. He spent the night and remained there in the morning after Carpenter left for work and A.S.'s children went to school. At the time, A.S. was taking an antihistamine for a bee sting and a prescription anti-anxiety medication, both of which caused her to feel drowsy. As a result of her drowsiness she laid down on the living room couch and started to "drift off." Jones went into the living room, sat next to her, and started stroking her hair. A.S. testified that after he "grabbed a handful of hair and pulled" hard enough to hurt her, she was nonresponsive in hopes that "if [she] just laid there and didn't move he would leave [her] alone." She further stated that:

After he was done pulling my hair, he left me alone for a little bit. And then he grabbed my chest and squeezed my breast really hard.... He apparently didn't get the reaction he wanted, and he moved down to my vaginal area.... He started touching me outside, and then he started putting his fingers inside me really hard.

Jones then proceeded to pull down A.S.'s pants and underwear, and "pushed [her] legs apart and started having sex with [her]." In response, A.S. "just froze," and testified that she was "paralyzed" with fear.

Afterwards, Jones and A.S. went to the bedroom and shared a cigarette. Jones helped A.S. into bed and once again started to have sexual intercourse with her. She testified that:

[A]bout a little ways into it he stopped, and then he said, "Baby, I do have a problem." He said, "What am I doing?" ... He got off me and pulled his clothes back on and put mine back on. And then he sat me back up and asked me if he could have sex with me. And I just kept saying over and over again, no, my kids are going to be home soon.

Eventually, Jones left the apartment.

A.S. drove to Carpenter's brother's house and told the brother's girlfriend that she had been raped. They took A.S. to the hospital where she told the staff that she had been sexually assaulted, but that she did not want to press charges. But law enforcement was contacted, and A.S. provided a statement to police while at the hospital.

On May 29, A.S. met with a detective, who arranged for A.S. to make a recorded call to Jones. A.S. confronted Jones regarding the incidents, and Jones is heard on tape apologizing for both incidents, conceding that he "continued" with sexual intercourse despite her protests in the first incident and her not responding during the second and admitting that after the first incident he sent her text messages² "promising [her] it wouldn't happen again." Additionally, A.S. is clearly heard saying, "You think this is okay to do to people who are unconscious? Apparently you've done this to [M.C.]³ before, and now you did it to me." In response, Jones says that he was already on felony probation for domestic battery and that he would have to register as a sex offender based on these new accusations. Jones also admits, when asked to describe the bad things he did in the past, that he had "hurt [M.C.]" and had also committed driving under the influence (DUI) offenses. Toward the end of the tape, A.S. asks Jones to describe what he did to her—he states that: "I think that I pushed things too far and I guess it's rape. I did it. You obviously didn't want any part of it."

Based on the May 22 incident in the bedroom (Count I) and the May 28 incident on the couch (Count II), Jones was charged with two counts of forcible rape under I.C. § 18–6101(3).⁴ At trial, A.S. testified regarding the events of both days. She admitted she had never informed police that she and Jones were sexually involved during the four years prior to the incidents. She also admitted her statements to the police were incomplete—specifically, she did not reveal that she and Jones had had consensual sex earlier in the day on May 22. Moreover, although she had shared text messages from Jones that she thought were incriminating, she did not show officers text messages sent by her to Jones that indicated that she loved him (and that would have revealed their relationship). A.S. also admitted that even at the time of trial, she was still concealing her relationship with Jones from Carpenter.

During cross-examination, defense counsel focused on a letter that A.S. wrote, had notarized, and gave to the prosecution before trial. In it, she recanted her allegations of rape, asserted that Jones was wrongfully charged, and characterized the incidents as a misunderstanding between her and Jones. But A.S. subsequently sent another letter to the prosecutor that retracted her retraction—she maintained that counseling had induced a change of heart and that she indeed wished to go forward with the charges.

The State then presented the testimony of the nurse who examined A.S. after the second incident. The nurse stated that A.S. was "visibly frightened" during their interaction: crying, avoiding eye contact, and speaking very softly. During the examination, A.S. "had her knees to her chest, kind of holding herself" and afterwards she laid down and "just kind of curled up." The nurse further testified that she found no physical evidence of trauma consistent with rape—there was no bruising, scrapes, or scratches on A.S.'s body.

Just prior to the presentation of the State's final witness and the introduction of the taped confrontation call into evidence, Jones objected, stating that the tape should be redacted. Specifically, he sought to remove a statement implying he had sex with M.C. while she was asleep. The district court ruled that the tape should not be redacted because it reasoned that:

In the first place, ... this is a rape allegation that was without [A.S.'s] consent. I don't believe that this is a rape allegation that she was unconscious at the time. So that's—I don't see how this is prejudicial. And clearly you could have made this motion a lot earlier. But I don't see that this is that prejudicial.

Furthermore, whatever relevancy it might have it certainly is not outweighed by any unfair prejudice to your client. I mean, as far as I know this is not a rape case about, you know, over the course of their relationship he was having sex with her while she was asleep.

The State then called its final witness, detective Bob Chaney, who met with A.S. following the incidents and who arranged the taped call to Jones. That tape was played in its entirety for the jury. Detective Chaney then testified that he read and copied several text messages from Jones to A.S, which were admitted into evidence, but that he did not inspect any messages sent from A.S. to Jones—including those in which she told Jones that she loved him. He was unaware that Jones and A.S. had been in a long-term consensual sexual relationship, and that the two had engaged in consensual intercourse on May 22, prior to the first incident. Chaney testified that the lab report he received following A.S.'s examination yielded no traces of semen.

Jones moved for a directed verdict at the close of evidence, alleging that the State failed to prove: 1)...