State v. Justice

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 47993

STATE OF IDAHO, )
) Filed: October 5, 2021
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
STEVEN EUGENE JUSTICE, JR., ) 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. Jason D. Scott, District Judge.

Judgment of conviction for lewd conduct with a minor child under sixteen,
affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kacey L. Jones, Deputy Attorney
General, Boise, for respondent.
________________________________________________

GRATTON, Judge
Steven Eugene Justice, Jr. appeals from his judgment of conviction for lewd conduct with
a minor child under sixteen (A.G.). Idaho Code § 18-1508. Justice argues the district court abused
its discretion by granting the State’s motion in limine. The district court excluded all evidence
about Justice and A.G.’s medical histories related to gonorrhea. The district court reasoned the
gonorrhea evidence, without expert testimony, had substantial risk of confusing the jury. For the
reasons set forth below, we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2019, Kelly G. (Kelly) walked into her daughter’s room to find Kelly’s adult
brother, Steven Justice, on top of her fifteen-year-old daughter, A.G. Kelly could see that Justice
had his pants pulled down and A.G. was wearing a skirt but no underwear.

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The next day, Kelly and her husband Andrew contacted law enforcement and reported the
sexual contact between Justice and A.G. Justice was tested for sexually transmitted diseases (STD)
and tested positive for gonorrhea. On the same day, A.G. was taken to complete a sexual assault
examination. Part of the examination included providing prophylactic medication for gonorrhea
and chlamydia as a proactive measure. No STD testing was conducted during the exam. Justice
was charged with lewd conduct with a minor child under sixteen.
Before trial, the State filed a motion in limine to preclude Justice from eliciting any
testimony or evidence related to Justice or A.G.’s history, diagnosis, prognosis, or treatment of
any sexually transmitted diseases. The district court conditionally granted the motion in limine.
The jury found Justice guilty of lewd conduct with a minor child under sixteen. Justice timely
appeals.
II.
STANDARD OF REVIEW
A trial court’s determination under Idaho Rule of Evidence 403 will not be disturbed on
appeal unless it is shown to be an abuse of discretion. State v. Enno, 119 Idaho 392, 406, 807 P.2d
610, 624 (1991); State v. Clark, 115 Idaho 1056, 1059, 772 P.2d 263, 266 (Ct. App. 1989).
When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the trial court: (1) correctly perceived the
issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently
with any legal standards applicable to the specific choices before it; and (4) reached its decision
by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).
III.
ANALYSIS
Justice argues the district court abused its discretion by excluding evidence under
I.R.E. 403 that Justice tested positive for gonorrhea and that A.G. did not have gonorrhea. The
State argues that Justice failed to establish a foundational fact, that A.G. did or did not have
gonorrhea, in order to establish that the proposed evidence was relevant. The State further asserts
that the district court correctly excluded the evidence and that, alternatively, any error was
harmless.
Even when evidence is relevant under I.R.E. 401, I.R.E. 403 requires the exclusion of
relevant evidence “if its probative value is substantially outweighed by the danger of . . . unfair

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prejudice, confusing the issues, misleading the jury . . . .” Evidence is confusing or misleading
when it could be interpreted in many different ways. Burgess v. Salmon River Canal Co., 127
Idaho 565, 574, 903 P.2d 730, 739 (1995).
Justice argues the district court’s analysis was without reason and arbitrary because the
transmission of gonorrhea during multiple unprotected sexual encounters is common knowledge
to a jury. Justice argues the court was wrong to only focus on the one alleged sexual encounter
and likelihood of transmission when A.G. had reported multiple unprotected sexual encounters.
Therefore, Justice argues the district court’s analysis is unreasonable because the evidence is clear
and easily understood by the jury. Lastly, Justice argues it is up to the jury to weigh the
significance of the evidence that he had gonorrhea and A.G. did not (although whether A.G. had
gonorrhea or not was never established).
The State argues that without an expert witness, the information is misleading and
confusing. The State contends that the district court was correct in determining that although the
sexual nature of STDs is common knowledge, issues relative to the transmission of an STD are
not necessarily in the common knowledge of an average juror. The State further argues this
evidence has no probative value because no STD test was conducted during A.G.’s sexual assault
examination and, even more so, A.G. was given prophylactic medication which would treat
gonorrhea and explain any lack of symptoms.
The district court determined the STD evidence was relevant “provided that the evidence
would be that the alleged victim doesn’t have gonorrhea.” The district court then turned to weigh
the evidence pursuant to I.R.E. 403. The district court determined that an expert witness was
necessary to help the jury understand transmission rates and circumstances and how to interpret
evidence of both Justice and A.G.’s STD history, diagnosis, prognosis, or treatment. Ultimately,
the district court determined that without an expert, the probative value of the evidence was
substantially outweighed by danger of unfair prejudice, confusion of the issues, and misleading
the jury.
The district court found that it is common knowledge that STDs are transmitted sexually,
but that knowledge regarding the likelihood of transmission was not. The court was concerned
with what sort of weight the jury was supposed to give to an alleged sexual encounter with a man
who has gonorrhea and an alleged victim who ostensibly does not. The court also questioned the

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probative value of the evidence in light of the lack of evidence of whether A.G. did not have
gonorrhea.
The court reasoned that to hear this evidence without an expert witness to testify about the
likelihood of transmission and when gonorrhea can be contracted, the jury is left to decide what to
do with the information that “he’s got it, she doesn’t” in a “void of medical information.” The
district court recognized a strong potential for the jury to weigh the evidence in a way that may
well be inconsistent with the actual likelihood of transmission, creating a strong potential for unfair
prejudice, for confusion of the issues, and for misleading the jury. The district court found that
the evidence was not “something that ultimately aids in the fair resolution of the case in the absence
of an expert who can testify to the transmission rates and the likelihood of transmission, the
circumstances under which transmission is possible, things of that nature.”
The district court has broad discretion in the admission and exclusion of evidence. State
v. Perry, 139 Idaho 520, 521, 81 P.3d 1230, 1231 (2003). Here, the district court correctly
perceived the issue as one within the court’s discretion and acted within the bounds of its
discretion. The district court correctly identified the I.R.E. 403 issue and thoughtfully applied the
rule to the evidence. Ordinarily, untrained persons who make up a jury are not experts on
gonorrhea and cannot be assumed to know its symptoms, presentation, methods of transmission,
rates of transmission, whether transmission can occur if a person is symptomatic or asymptomatic,
the likelihood of transmission based on gender or based on specific types of sexual contact, and
the like. Without the contextual medical information, the risk of the jury weighing the STD
evidence in a manner inconsistent with its actual medical import is substantial.
The district court employed thoughtful and clear reasoning in determining an expert
witness was necessary to tie together and provide context to the limited evidence Justice could
offer. The district court correctly determined that, in the absence of expert testimony, the relevance
of the evidence was substantially outweighed by the danger of unfair prejudice, confusion of the
issues, and misleading the jury. Therefore, the district court did not abuse its discretion when
granting the State’s motion in limine to conditionally 1 exclude all evidence about Justice and
A.G.’s history, diagnosis, prognosis, and treatment of STDs.

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Justice did not call an expert to describe medical issues relative to the transmission of
gonorrhea.
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IV.
CONCLUSION
The district court did not err in granting the State’s motion in limine. Accordingly,
Justice’s judgment of conviction and sentence for lewd conduct with a minor child is affirmed.
Chief Judge HUSKEY and Judge BRAILSFORD CONCUR.

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