State v. Kimbley

539 P.3d 969

STATE of Idaho, Plaintiff-Respondent,

v.Kenneth Bernard KIMBLEY, III, Defendant-Appellant.

Docket No. 49207

Supreme Court of Idaho, Coeur d'Alene, September 2023 Term.

Opinion Filed: December 5, 2023

Phelps & Associates, Spokane, Washington, for Appellant, Kenneth Bernard Kimbley, III. Douglas D. Phelps argued.

Raúl R. Labrador, Idaho Attorney General, Boise, for Respondent, State of Idaho. Justin R. Porter argued.

STEGNER, Justice.

This case concerns a criminal trial that occurred during the COVID-19 pandemic. In addition, this appeal largely serves as a cautionary illustration of the consequences of failing to preserve issues for appeal. In June 2021, Kenneth Bernard Kimbley, III, was found guilty on four counts of lewd and lascivious conduct following a jury trial and sentenced to four concurrent sentences, each for a determinate period of not less than fifteen years and an indeterminate period of not more than fifteen years, for a total unified sentence not to exceed thirty years. Kimbley has timely appealed, raising constitutional and evidentiary challenges to his convictions. For the reasons set forth below, including the failure to preserve issues for appeal, we affirm Kimbley's conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 2019, a Bonner County grand jury indicted Kenneth Bernard Kimbley, III, with nine counts of lewd and lascivious conduct that allegedly occurred from 2011 to 2014. Kimbley pleaded not guilty to all counts, and the case was set for trial. While awaiting trial, Kimbley was released from jail on bond in July 2019. However, the following month the district court revoked Kimbley's conditional release and issued a warrant for his arrest after finding that Kimbley had not been released with an ankle monitor, a condition required by the terms of his release.

Efforts to find and arrest Kimbley were initially unsuccessful, in part due to difficulties associated with the COVID-19 pandemic. During this time, Kimbley failed to appear at his pretrial conference and had no contact with his attorney. Kimbley was ultimately arrested the next year in December 2020 in Washington and extradited back to Idaho. Detective Reinink of the Bonner County Sheriff's Office was the lead investigator in charge of locating Kimbley. In an affidavit, Detective Reinink stated that at the time of his arrest in Washington, "Kimbley had been residing with his girlfriend, Arin Johnson, in an apartment in the Spokane Valley area." Detective Reinink also claimed that "Johnson made admissions to Officer Gordon [with the Coeur d'Alene Police Department] that she and Mr. Kimbley had left Idaho in the middle of October[ ] 2019[ ] and moved to Spokane Valley." Johnson also admitted that during Kimbley's time in Washington, he used an alias and "work[ed] under the table." Detective Reinink concluded that "I am convinced that Mr. Kimbley fled the area of southern Bonner County, northern Kootenai County to a neighboring state to avoid prosecution."

Following his extradition back to Idaho, Kimbley filed two relevant motions prior to trial. First, Kimbley moved the district court to sever the charges in the indictment because Counts I–III pertained to allegations made by one victim, A.N., and Counts IV–IX pertained to allegations made by another victim, E.N. The district court held a hearing on the motion in February 2021, at which all parties appeared remotely via Zoom. The district court granted Kimbley's motion to try the charges separately.

Second, Kimbley filed a motion in limine to exclude "testimony or evidence regarding the Defendant's alleged flight from Bonner County while trial was pending, and his subsequent arrest and extradition from the state of Washington." The district court held a hearing on the motion in April 2021 at the Bonner County Courthouse. While Kimbley attended the hearing in person, his attorney attended remotely via Zoom. After the hearing, the district court issued a written decision denying Kimbley's motion in limine. The district court concluded that evidence of Kimbley's flight was "relevant because it may indicate a consciousness of guilt." The district court further concluded that "the probative value of this evidence of flight is not substantially outweighed by the danger of unfair prejudice"; however, the district court limited the prosecution's focus on this evidence to guard against the danger of unfair prejudice. Specifically, the district court stated:

[T]he State shall not be allowed to focus on the details or sensationalize Kimbley's flight, or to render opinions or theories as to the reason for his flight. For example, the [c]ourt shall not allow any statements like those in Detective Reinink's Declaration that, while a fugitive, "Mr. Kimbley was using the alias of Mark during that time," and that he "was working under the table"; or that Detective Reinink is "convinced that Mr. Kimbley fled ... to avoid prosecution."

In short, the only admissible evidence regarding Kimbley's fugitive status was "that Kimbley fled from prosecution in Bonner County while awaiting trial and was subsequently arrested in, and extradited from the State of Washington ... [and] [e]vidence of the length of time that Kimbley was a fugitive[.]"

Kimbley's trial on Counts IV–IX occurred in June 2021 at the Bonner County Courthouse. While the district court's staff, the parties to the case, and the jury were all physically present in the courtroom, the district court began the trial by issuing the following order limiting public access to the courtroom to view the trial ("the Livestream Order"):

I do have to make some specific findings in the age of COVID. We are conducting this trial in accord with the Idaho Supreme Court's emergency orders for jury trials and court proceedings during the COVID[-]19 pandemic. That means that we have to maintain adequate social distancing. Unfortunately, the lack of sufficient physical space for the required social distancing prevents the public from being physically present in the courtroom during this trial.

The [c]ourt hereby finds that health and safety concerns override other interests in allowing the public to be physically present in the courtroom. In lieu of allowing the public to be present in the courtroom, the [c]ourt is providing public access to this trial through a live video and audio stream of the proceedings. The [c]ourt finds that our capability to live stream is both a narrowly tailored and a reasonable alternative to in-person attendance at this trial.

The emergency order referenced by the district court was the Amended Order regarding the "Emergency Order Regarding Court Services" issued by this Court on May 20, 2021 ("the Amended Order"). In a section titled "Live Streaming of Proceedings[,]" the Amended Order required that before a court may restrict public attendance at a proceeding traditionally open to the public, the presiding judge must make certain findings. Specifically, the trial court was obligated to find that:

i. health and safety concerns override other interests in allowing the public to be physically present in the courtroom;

ii. denial of the public's physical presence in the courtroom is necessary to protect the health and safety of those participating in the proceeding, including, if applicable, a lack of sufficient physical space for adherence to required social distancing;

iii. [t]he assigned judge has considered other reasonable alternatives to allow the physical presence of the public;

iv. [t]he assigned judge has made findings on the record that live streaming is an appropriate alternative because

1. No reasonable in-person alternative is available that would sufficiently ensure the health and safety of those participating in the trial; and

2. The available live streaming capability is a narrowly tailored and reasonable alternative.

The Amended Order also provided that "[i]f the public cannot be physically present in the courtroom, a public[ly] accessible live audio and video stream of the proceedings must be provided." In short, based on its application of the Amended Order, the district court ordered that members of the public were only allowed to view the trial via livestream.

The trial then commenced with the State's case in chief, during which the State introduced evidence that Kimbley had fled prosecution and was later apprehended in Washington. In addition to other evidence, the State also called E.N. (the victim) to testify as a witness. During the defense's cross-examination of E.N., Kimbley's attorney asked E.N. in reference to a specific instance of lewd and lascivious conduct, "Did [Kimbley] pull a gun on you that night?" E.N. responded, "That night, no." As a result of this question, the State (outside the presence of the jury) asked the district court for permission to inquire further into E.N.’s memory of "any time that Ken pulled a gun on [E.N.] and frightened [E.N.]" Kimbley's attorney opposed the State's request, explaining that she had only asked E.N. the question about the gun for the purpose of "impeachment" because, in earlier interviews, E.N. had mentioned that Kimbley had pulled a gun on him during that instance of lewd and lascivious conduct. The district court ruled that it would permit the State to inquire into the issue on redirect examination. Specifically, the district court stated:

But I am not going to prohibit on redirect if [the State] is trying to ask him—because I'm sure he's going to want to ask him about this interview, what he remembers, why did he say that. I mean, he might say I was confused, there was another incident where a gun was pulled. [The State] is allowed to ask that. So I think that's as far as we can go at this point.

On redirect examination, the State asked E.N. several questions regarding his memory of Kimbley's gun possession and if Kimbley had ever pulled a gun on him.

Later during the trial, Kimbley called his girlfriend, Arin Johnson, to testify. On cross-examination, the State...