IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 36748
STATE OF IDAHO, )
) 2011 Opinion No. 47
Plaintiff-Respondent, )
) Filed: August 8, 2011
v. )
) Stephen W. Kenyon, Clerk
CHARLES GLENN FORDYCE, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Michael E. Wetherell, District Judge.
Judgment of conviction for felony domestic violence, affirmed.
Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant. Deborah A.
Whipple argued.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
Attorney General, Boise, for respondent. Russell J. Spencer argued.
________________________________________________
LANSING, Judge
Charles Glenn Fordyce was found guilty of felony domestic violence and of an
enhancement for being a persistent violator of the law. He contends that the district court erred
at trial by admitting evidence that the victim was pregnant at the time of the attack and by
admitting expert testimony concerning the behavior of domestic violence victims.
I.
BACKGROUND
Fordyce was charged with felony domestic violence, I.C. §§ 18-918(2)(a), 18-903, for
beating his live-in girlfriend, inflicting traumatic injuries. He pleaded not guilty and the case
proceeded to trial. Photographs of the victim’s face that were placed in evidence showed
significant swelling, abrasions, and cuts. The victim told police and medical personnel at the
hospital that Fordyce had beaten her because he was angry at the possibility that she might be
pregnant and that he had kicked her in the abdomen. Medical personnel performed a test that
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showed the presence of a hormone indicating pregnancy. Over Fordyce’s objection, evidence of
this test result was admitted at trial.
In her trial testimony, the victim recanted and contradicted the statements she had made
to police and medical personnel that blamed Fordyce for her injuries. She testified that Fordyce
had not beaten her but instead that she had incurred her injuries falling into a dry irrigation ditch
and that previous injuries suffered to her face swelled when she drank heavily. The victim said
that blood found on the bed sheets in her residence was not hers but instead was Fordyce’s blood
deposited there after she bit him. Generally, the victim testified that she was the aggressor in a
physical altercation between the two and that she could not recall making statements to the
police and medical providers implicating Fordyce, or claimed that the statements were
inadvertently made in a drunken state of confusion.
The victim’s recantation was known to the prosecutor before trial, for she had similarly
recanted at Fordyce’s preliminary hearing. At trial, the State called an expert witness to explain
why and in what circumstances a domestic violence victim will sometimes recant and minimize a
defendant’s criminal conduct. During this testimony, defense counsel made two relevance
objections, which the district court overruled.
The jury returned a verdict of guilty. On appeal, Fordyce posits error in the referenced
evidentiary rulings.
II.
ANALYSIS
A. Idaho Rule of Evidence 403
Events preceding the charged offense underlie the evidentiary issue regarding the
victim’s possible pregnancy. The victim said that she had been raped by another man about a
month before the incident in question. She apparently believed that she may have become
pregnant as a result of the rape. When the victim reported the present offense, she told a
detective that Fordyce had punched and kicked her “forever and forever” after she told him that
she might be pregnant. The detective saw that the victim was naked and covered in blood, with
multiple injuries to her face and body. She was transported to the hospital for treatment and
repeated to EMT and hospital personnel that Fordyce had beaten her because he believed she
was pregnant by another man. Among the blows struck, the victim said that Fordyce had kicked
her in the abdomen, and she complained of pain in that area. A pregnancy test administered at
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the hospital returned a positive result. In testimony at trial, a physician said that because a
sonogram did not show a fetus, this was an “early, early” pregnancy that could have been
“ectopic.” 1
On the first day of trial, defense counsel moved to preclude the presentation of “any
testimony in regards to the victim potentially being pregnant” on the ground that this evidence
would be “highly prejudicial.” The State responded that “this evidence is very probative and not
unfairly prejudicial because it is what the State believes is the motive for why this fight started.”
The district court denied the motion. Fordyce contends the court’s analysis was incomplete
because the court only noted that the evidence was probative of Fordyce’s motive for the
physical attack, but did not mention any prejudicial effect, much less conduct the weighing of
probative value against unfair prejudice that is called for by Idaho Rule of Evidence 403.
Fordyce posits that because the jurors could see that the victim was not pregnant at the time of
trial, they would assume that Fordyce’s actions caused a miscarriage, and the district court
should have considered this prejudicial impact of the evidence. Although Fordyce sought to
exclude all evidence of the victim’s pregnancy in the trial court, on appeal, he challenges only
the physician’s testimony about the positive pregnancy test.
Rule 403 provides that relevant evidence may nevertheless be excluded “if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” Recently, in State v. Ruiz, 150 Idaho 469, 248 P.3d 720 (2010), our
Supreme Court held that a trial court erred by failing to weigh the probative value against the
risk of unfair prejudice before excluding evidence of a motivation for a prosecution witness to
testify against the defendant. The Supreme Court said:
To exclude evidence under Rule 403, the trial court must address whether the
probative value is substantially outweighed by one of the considerations listed in
the Rule. The district court here did not conduct that analysis. It merely said,
“You can’t talk about minimum mandatories.” After Ruiz’s counsel objected, the
court added, “I think that the court has a delicate line to walk between what you
are allowed to do in terms of credibility and the fact that the jury is not to be
1
This medical term was not explained to the jury, but it refers to an abnormal pregnancy
outside the womb where a fetus cannot survive. Medline Plus, U.S. NATIONAL LIBRARY OF
MEDICINE, http://www.nlm.nih.gov/medlineplus/ency/article/000895.htm (last visited Aug. 3,
2011).
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advised of the penalties that the defendant might face, if convicted.” Because it
excluded the evidence without conducting the analysis required by Rule 403, the
district court erred.
The State has not argued that the error was harmless. Therefore, we
vacate the judgment of conviction.
Id. at 471, 248 P.3d at 722 (citations omitted). Fordyce asserts that Ruiz establishes that it is
error per se for “a trial court to fail to conduct a Rule 403 balancing analysis on the record.”
We conclude that even accepting Fordyce’s interpretation of Ruiz, he has not shown
reversible error because he has not identified any unfair prejudice to weigh. First, if Fordyce’s
attack actually caused the victim to have a miscarriage it cannot be said that apprising the jury of
this fact is necessarily unfair. Evidence is not unfairly prejudicial simply because it is damaging
to a defendant’s case. Evidence is unfairly prejudicial when it suggests decision on an improper
basis. State v. Pokorney, 149 Idaho 459, 465, 235 P.3d 409, 415 (Ct. App. 2010); State v. Floyd,
125 Idaho 651, 654, 873 P.2d 905, 908 (Ct. App. 1994). If a miscarriage occurred here, it was
not an unrelated act or circumstance, but instead was part and parcel of the crime for which
Fordyce was charged. Fordyce has cited no authority that it is unfairly prejudicial for the State to
present evidence of the injury caused by a battery. Here, there was no direct evidence of a
miscarriage--merely a possible inference--but if a miscarriage did result, that information would
not have been unfairly prejudicial as evidence confirming the fact and force of the battery. That
the motive for the attack and the possible resulting injury made the defendant look like an
exceptionally bad person is not unfair prejudice that would justify withholding those facts from
the jury.
Second, while defense counsel was less than clear on this point, at the hearing he seemed
to assert that it would be difficult to explain to the jury that the victim may not have actually
been pregnant because a positive pregnancy test at an early stage reveals only the existence of
hormones indicating pregnancy and does not establish that a fertilized egg had attached in the
uterus or that a pregnancy was viable. From this premise, he asserted that the jury might
incorrectly speculate that the blows delivered to the victim’s abdomen caused her to have a
miscarriage. In our view, this does not describe “unfair prejudice,” for if it was ultimately
determined that the victim had not actually been pregnant, this fact could easily have been
elicited from her at trial. Defense counsel also could have cross-examined the doctor to draw out
the points that counsel referenced at the motion hearing. An accused may not construct unfair
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prejudice merely by conceiving of an incorrect inference that possibly could be drawn from the
State’s evidence and then declining to dispel that incorrect inference through appropriate cross-
examination.
Because Fordyce has identified no unfair prejudice from this testimony, we hold that the
district court did not err in failing to conduct a Rule 403 balancing test on the record.
B. Domestic Violence Expert’s Testimony
Fordyce next contends that the district court erred in admitting testimony of the State’s
domestic violence expert over Fordyce’s relevance objections. The State called the expert to
explain why and in what circumstances a domestic violence victim may recant accusations
against an abuser or minimize the abuser’s wrongful conduct. About halfway through the
expert’s testimony the prosecutor asked him to explain the “dynamics” of a domestic violence
situation, and the expert gave a lengthy narrative response. At the outset of this response, the
expert told the jury that domestic violence “is a huge problem in the United States” and “in the
time period that you will spend sitting in court today, on the average four women will be killed
by their intimate partner.” The expert went on to describe in general terms how there is often a
gradual evolution of increasingly controlling behaviors by perpetrators and submission by
victims to this ever-increasing control. He closed his narrative with: “It’s a shift over time. The
main dynamics being those of power.” Fordyce then objected “on relevancy,” without further
comment. The district court overruled the objection.
On appeal, Fordyce contends that the district court erred because the expert’s testimony
concerning “the scope of the (domestic violence) problem and the number of women likely to be
killed” were matters irrelevant to his guilt on the crime charged. However, Fordyce made no
timely objection to that testimony. Idaho Rule of Evidence 103(a)(1) provides that error may not
be predicated upon a ruling admitting evidence unless “a timely objection or motion to strike
appears of record.” Normally, a timely objection is made as soon as the question is asked. State
v. O’Bryan, 96 Idaho 548, 556, 531 P.2d 1193, 1201 (1975). Fordyce did not make a timely
objection to the prosecutor’s question, but instead waited until the witness had finished his
expansive narrative answer. A motion to strike evidence already elicited may serve as a delayed
objection, Phillips v. Erhart, ___ Idaho ___, ___, 254 P.3d 1, 6 (2011); O’Bryan, 96 Idaho at
556, 531 P.2d at 1201, but Fordyce also did not move to strike any of the expert’s preceding
testimony, nor even direct the trial court’s attention to the portions of the testimony that he now
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challenges. We therefore hold that Fordyce’s relevancy objection failed to timely and properly
preserve a challenge to the evidence that he now, belatedly, contends was wrongfully presented.
When the expert’s testimony resumed, the prosecutor asked for an opinion as to why
victims of domestic violence do not always report or may be reluctant to report it, and the
witness responded without objection from Fordyce. The prosecutor then asked, “And again, in
your training and experience, have you seen recantation in the context of domestic violence?”
Defense thereupon objected: “Your Honor, I am going to object at this point as to where the
question is going. If we are going to get into specifics, I don’t know that all of this is relevant to
the case at hand, the facts that have been elicited this far.” From these statements, the only
apparent legal ground for objection was relevance. Again, there was no motion to strike any of
the expert’s preceding testimony. After discussion outside the presence of the jury, the district
court overruled the objection.
On appeal, Fordyce contends that the domestic violence expert’s testimony improperly
presented a trait of the victim’s character to prove that she acted in conformity therewith, which
is made inadmissible by I.R.E. 404(a) and that the district court should have excluded the
evidence under I.R.E. 403.
Idaho Rule of Evidence 103(a)(1) provides that an objection must state “the specific
ground of objection, if the specific ground was not apparent from the context.” An objection on
one ground will not preserve a separate and different basis for excluding the evidence. State v.
Norton, 134 Idaho 875, 880, 11 P.3d 494, 499 (Ct. App. 2000); State v. Enyeart, 123 Idaho 452,
454, 849 P.2d 125, 127 (Ct. App. 1993). At trial, defense counsel’s only stated objection was
relevance. He did not expressly invoke Rule 404(a) or refer to the expert’s testimony as
character evidence, nor did he ask the court to exclude the evidence under Rule 403 as
substantially more prejudicial than probative. Assuming arguendo, however, that the relevance
objection at trial adequately preserved for appeal the issue whether the evidence was irrelevant
for any purpose other than that excluded by Rule 404(a), we find Fordyce’s appellate argument
to be without merit.
Rule 404(a) provides that “evidence of a person’s character or a trait of character is not
admissible for the purpose of proving that the person acted in conformity therewith on a
particular occasion” except in limited circumstances that are not applicable here. That rule is
inapposite here because the expert witness presented no testimony whatsoever concerning the
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character or traits of character of the victim in this case. So far as revealed by the record, the
expert had never interviewed nor evaluated this victim, and he presented no testimony about her
personal behavior or characteristics. Rather, his testimony was about common behaviors of
domestic violence perpetrators and victims and the types of behavior that domestic violence
victims often exhibit. Therefore, I.R.E. 404(a) is entirely inapplicable to this testimony.
Other than arguing that the challenged evidence is character evidence made inadmissible
by Rule 404(a), Fordyce does not carry forward on appeal the relevance objection that was raised
below. Having found his appellate argument for application of Rule 404(a) to be without merit
and his Rule 403 argument to be unpreserved for appeal, we do not further consider the
admissibility of this evidence.
III.
CONCLUSION
Because Fordyce’s appellate argument has identified no error in the trial proceedings, the
judgment of conviction is affirmed.
Judge GUTIERREZ and Judge MELANSON CONCUR.
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