State v. Votroubek

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 50522

STATE OF IDAHO, )
) Filed: July 25, 2024
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
PRESTON MICHAEL VOTROUBEK, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. Benjamin J. Cluff, District Judge.

Judgment of conviction and unified sentence of sixteen years with a minimum
period of confinement of six years for rape, affirmed.

Erik R. Lehtinen, State Appellate Public Defender; Jenny C. Swinford, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; John C. McKinney, Deputy Attorney
General, Boise, for respondent.
________________________________________________

GRATTON, Chief Judge
Preston Michael Votroubek appeals from the district court’s judgment of conviction and
sentence for rape. For the reasons set forth below, we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Law enforcement received a report from the mother of a thirteen-year-old girl (N.S.),
stating her daughter was raped at a friend’s birthday party. At the party, N.S. consumed alcohol
and muscle relaxers, became intoxicated, and went to lie down in her friend’s bedroom. N.S.’s
memory was incomplete, but she reported Votroubek came into the room, pulled her pants down,
she felt a ripping pain, and woke up naked. Police questioned another juvenile at the party (C.E.),
who stated Votroubek went into the bedroom and C.E. saw N.S. on her side while Votroubek had
sex with her.

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Police interviewed Votroubek, who was seventeen years old. At first Votroubek only
admitted he inserted his finger inside N.S.’s vagina and she touched his penis. The next day,
Votroubek called police and admitted having oral and genital sex with N.S. Two days after the
phone call, Votroubek went to the police station and admitted he knew N.S. took muscle relaxers
and consumed alcohol that night. Votroubek stated while he engaged in sexual conduct with N.S.
it seemed like she was falling asleep.
The State charged Votroubek with rape, Idaho Code § 18-6101. During the trial,
Votroubek’s counsel questioned the detective about the interview tactics and methods used to elicit
incriminating statements from Votroubek, suggesting coercion. On re-direct examination, the
prosecutor asked the detective, “Did the defendant ever move to exclude his statements?”
Votroubek objected but the district court overruled the objection. The jury found Votroubek
guilty. The district court imposed a unified sentence of sixteen years with six years determinate.
Votroubek appeals.
II.
STANDARD OF REVIEW
The trial court has broad discretion in the admission and exclusion of evidence and its
decision to admit evidence will be reversed only when there has been a clear abuse of that
discretion. State v. Folk, 162 Idaho 620, 625, 402 P.3d 1073, 1078 (2017). The question of
whether evidence is relevant is reviewed de novo, while the decision to admit relevant evidence is
reviewed for an abuse of discretion. State v. Garcia, 166 Idaho 661, 669, 462 P.3d 1125, 1133
(2020).
Sentencing lies within the discretion of the trial court. State v. Casper, 169 Idaho 793, 797,
503 P.3d 1009, 1013 (2022). When reviewing whether the length of a sentence is excessive, the
appellate court reviews all the facts and circumstances in the case and focuses on whether the trial
court abused its discretion in fashioning the sentence. State v. Oliver, 144 Idaho 722, 726, 170
P.3d 387, 391 (2007); State v. Baker, 136 Idaho 576, 577, 38 P.3d 614, 615 (2001).
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).

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III.
ANALYSIS
Votroubek claims the district erred by overruling his objection to the detective’s testimony
regarding Votroubek not moving to exclude evidence of his statements. Votroubek argues the
testimony was irrelevant and should have been excluded. In addition, Votroubek asserts the
district court erred by imposing an excessive sentence.
A. Detective’s Testimony
Votroubek argues that whether defense counsel filed a motion to suppress evidence was
not relevant to the jury’s evaluation of his statements. Votroubek claims the non-filing of a motion
to suppress was too speculative, confusing, and complex to offer any probative value to any fact
of consequence. The State asserts that the district court correctly determined Votroubek’s coercion
implications could be refuted through the detective’s testimony. The State claims the testimony
was a fair and relevant response to Votroubek’s insinuations. Alternatively, the State argues any
error in the admission of evidence was harmless.
Generally, we will not consider an alleged non-constitutionally based error on appeal in
the absence of a timely objection in the trial court. See State v. Bernal, 164 Idaho 190, 193, 427
P.3d 1, 4 (2018). To preserve an evidentiary objection for review, Idaho Rule of Evidence 103
requires the party challenging an evidentiary ruling admitting evidence to state the grounds for
objection clearly, unless the specific ground for objection is apparent from context. State v.
Chacon, 168 Idaho 524, 532, 484 P.3d 208, 216 (Ct. App. 2021). After the State asked the
detective if Votroubek sought to exclude statements through a pretrial motion, Votroubek objected.
Votroubek stated: “Judge, I’ll object on--” at which point the district court overruled the objection
without allowing Votroubek the opportunity to establish a basis for the objection. The district
court said “I’m going to overrule. The implication was made.” While Votroubek did not articulate
a basis for the objection, either before or after the district court’s ruling, the parties agree that the
basis of the objection and ruling is ascertainable from the context; namely, that the district court
determined Votroubek implied, through his question of the detective, that his statements were
coerced and, therefore, the prosecutor could refute that implication by showing that defense
counsel did not file a motion to suppress the statements. Votroubek argues that whether his counsel
did or did not file a motion to exclude the statements is not relevant, even to rebut the implication
of coercion.

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Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than
it would be without the evidence; and (b) the fact is of consequence in determining the action.
I.R.E. 401. Relevant evidence is generally admissible. I.R.E. 402. “[T]here is no requirement
that evidence be relevant only to a disputed issue under I.R.E. 401, only that evidence be probative
and material.” Garcia, 166 Idaho at 671, 462 P.3d at 1135. Whether a fact is of consequence or
material is determined by its relationship to the legal theories presented by the parties. Id. at 670,
462 P.3d at 1134.
At trial, Votroubek asked the detective about the methods and tactics used in eliciting
Votroubek’s inculpatory statements. Votroubek attempted to show that the statements were the
product of manipulation or coercion. Votroubek asked the detective about his interview techniques
such as: telling Votroubek he had talked to everyone when he had not; assuring Votroubek that
he would be able to leave; not advising Votroubek of Miranda1 rights; and interviewing the
seventeen-year-old alone. Votroubek’s counsel suggested the detective challenged Votroubek’s
story until it conformed to what C.E. told the detective. In response to the insinuations, on re-
direct the prosecutor asked the detective about the propriety of his investigation. The prosecutor
asked if the detective could get into trouble if he violated Votroubek’s rights or coerced a
confession. Once the detective confirmed that he did not get into trouble in this case, the
prosecutor asked: “Did the defense ever move to exclude his statements?” Votroubek objected,
but the district court overruled stating, “The implication was made.”
Votroubek contends the district court erred because the evidence concerning whether
defense counsel filed a motion to suppress was neither probative nor material. The State asserts
once Votroubek opened the door, it could elicit testimony to refute the insinuations. See State v.
Kimbley, 173 Idaho 149, 159-60, 539 P.3d 969, 979-80 (2023) (eliciting evidence of other
wrongful acts permissible once defendant opened the door for the State to rehabilitate witness’s
credibility); State v. Brown, 131 Idaho 61, 69, 951 P.2d 1288, 1296 (Ct. App. 1998) (prosecutor’s
arguments did not disparage defense counsel but were fair responses to attacks on the victim’s
credibility). In United States v. Robinson, 485 U.S. 25, 26 (1988), Robinson’s counsel argued
during his closing that “the Government had not allowed [the defendant] to explain his side of the
story” and the prosecutor responded during his summation that the defendant “could have taken

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Miranda v. Arizona, 384 U.S. 436 (1966).
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the stand and explained it to you.” The Supreme Court held that “the comment by the prosecutor
did not violate respondent’s privilege to be free from compulsory self-incrimination guaranteed by
the Fifth Amendment to the United States Constitution.” Id. The Court later reiterated that, “where
as in this case the prosecutor’s reference to the defendant’s opportunity to testify is a fair response
to a claim made by defendant or his counsel, we think there is no violation of the privilege.” Id.
at 32. The State’s question was an attempt to elicit a fair response to Votroubek’s implication of
coercion and, therefore, was relevant.
Votroubek’s cross-examination sought to discredit the detective’s interview techniques as
manipulative or coercive. By questioning the manner Votroubek was interviewed and the
circumstances surrounding the confession, Votroubek insinuated some impropriety by the State.
Thereafter, the State on re-direct sought to refute Votroubek’s insinuation by asserting
Votroubek’s counsel never sought to exclude the statements. The State contends the circumstances
surrounding the investigation and Votroubek’s inculpatory statements were proper because
otherwise Votroubek would have filed a motion to suppress. While there may be a number of
reasons why defense counsel would not file a motion to suppress, thus potentially making the
question and answer speculative and confusing, Votroubek did not argue in the district court that
the question and answer should be excluded under I.R.E. 403, although, as noted, the district court
ruled before Votroubek could state the basis for the objection. However slight, the question and
answer were relevant to counter or minimize the implication of coercion in obtaining the
statements from Votroubek.
Even assuming that the district court erred in admitting the testimony, we hold that any
error in admitting evidence of Votroubek’s failure to file a motion to suppress was harmless. A
defendant is entitled to a fair trial, but not a perfect trial. State v. Enno, 119 Idaho 392, 408, 807
P.2d 610, 626 (1991); State v. Estes, 111 Idaho 423, 428, 725 P.2d 128, 133 (1986). Error is not
reversible unless it is prejudicial. State v. Stell, 162 Idaho 827, 830, 405 P.3d 612, 615 (Ct. App.
2017). Where a criminal defendant shows an error based on a contemporaneously objected-to,
nonconstitutional violation, the State then has the burden of demonstrating to the appellate court
beyond a reasonable doubt the error did not contribute to the jury’s verdict. State v. Montgomery,
163 Idaho 40, 46, 408 P.3d 38, 44 (2017). Harmless error is error unimportant in relation to
everything else the jury considered on the issue in question, as revealed in the record. Garcia, 166
Idaho at 674, 462 P.3d at 1138. This standard requires weighing the probative force of the record

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as a whole while excluding the erroneous evidence and at the same time comparing it against the
probative force of the error. Id. If the error’s effect is minimal compared to the probative force of
the record establishing guilt beyond a reasonable doubt without the error, then the error did not
contribute to the verdict rendered and is harmless. Id. The reviewing court must take into account
what effect the error had, or reasonably may have had, on the jury in the context of the total setting
and in relation to all else that happened, which necessarily includes the evidence presented.
Kotteakos v. United States, 328 U.S. 750, 764 (1946).
Turning to the probative force or prejudicial effect of the error, Votroubek asserts the
detective’s testimony was irrelevant and the filing of a motion should not factor into the jury’s
consideration of the statements themselves. Votroubek claims the non-filing of a motion to
suppress was too speculative, confusing, and complex to offer any probative value to any fact of
consequence. Because the statement was admitted, Votroubek asserts it led to a misguided
bolstering of the detective and called into question the veracity of Votroubek’s cross-examination.
Votroubek states the question and answer impermissibly attacked defense counsel for failure to
file a motion to suppress. The question and answer cannot fairly be appreciated as an attack on
defense counsel for failing to file a motion. A jury would not consider the complexities incident
to filing or not filing a motion. More likely is that the jury would evaluate the implication of
coercion from the recorded interviews themselves. The probative value of the included evidence
was minimal.
On the other hand, the probative force of the record as a whole supporting Votroubek’s
guilt beyond a reasonable doubt is substantial. N.S. testified about the events on the night in
question. After taking pills and consuming beer, N.S. recalled becoming disoriented and
Votroubek coming into the room. N.S. said, “No, please go away,” when Votroubek asked if she
wanted to have sex. N.S. slipped in and out of consciousness but was woken up by a sharp stabbing
pain. C.E. testified to N.S.’s inebriated state and, after helping N.S. into bed, seeing Votroubek
thrust into her unresponsive body. The jury heard from the detective and the recorded interviews
in which Votroubek admitted to the various sex acts. Upon the eyewitness testimony and
Votroubek’s admissions, the probative force of the whole record excluding the challenged
evidence was particularly strong.
Whether Votroubek’s counsel filed a pretrial motion weighed little on the jury. As
Votroubek notes: speculative, confusing, and complex pretrial motions are made outside the

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presence of a jury and their ability to track those implications in the midst of trial are remote. To
the extent it impermissibly bolstered the investigation, the entire record establishes this exchange
was insignificant. The jury had the recordings of the detective’s conversations with Votroubek
and could decide for itself whether they were coercive in some manner. Thus, weighing the
probative force of the record as a whole and at the same time comparing it against the probative
force of the error, the error in including the evidence was harmless. The error’s effect is minimal
compared to the probative force of the record establishing guilt beyond a reasonable doubt without
the error.
B. Sentencing
An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal, the
appellant has the burden to show that it is unreasonable and thus a clear abuse of discretion. State
v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such an abuse
of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho
89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it appears at the time
of sentencing that confinement is necessary 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. State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App.
1982). Where an appellant contends that the sentencing court imposed an excessively harsh
sentence, we conduct an independent review of the record, having regard for the nature of the
offense, the character of the offender, and the protection of the public interest. State v. Reinke,
103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When reviewing the length of a
sentence, we consider the defendant’s entire sentence. Oliver, 144 Idaho at 726, 170 P.3d at 391.
Our role is limited to determining whether reasonable minds could reach the same conclusion as
the district court. State v. Biggs, 168 Idaho 112, 116, 480 P.3d 150, 154 (Ct. App. 2020).
Votroubek contends under any reasonable view of the facts the district court should have
sentenced him to a lesser term or retained jurisdiction. Specifically, Votroubek asserts the district
court erred because of mitigating factors including his troubled childhood, young age, and
motivation to become a productive member of society.
In fashioning Votroubek’s sentence, the district court considered the presentence
investigation report, the psychosexual evaluation, and the comments and recommendations of

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counsel. The district court considered and applied the Toohill factors, the statutory factors under
I.C. § 19-2521, and evidence from the entire proceeding. The district court considered the
mitigating factors but found his age did not outweigh the heinous nature of the crime. Reviewing
the materials and in light of Votroubek’s failure to take responsibility or show remorse, the district
court found Votroubek instead attempted to show deficiencies in his own upbringing. The district
court determined incarceration was necessary to protect society; retribution was necessary for the
crime against a child; and Votroubek needed to be deterred from future behavior.2
Votroubek concedes his sentence is within the statutory limit of life in prison. I.C. § 18-
6104. Votroubek essentially asks this Court to reweigh the evidence, which we will not do.
Reasonable minds could conclude that the sentence imposed was appropriate to accomplish the
goals of criminal sentencing. Accordingly, Votroubek has failed to show the district court abused
its discretion in sentencing.
IV.
CONCLUSION
Votroubek failed to demonstrate reversible evidentiary error. Votroubek failed to
demonstrate that the district court abused its sentencing discretion. Therefore, Votroubek’s
judgment of conviction and sentence are affirmed.
Judge HUSKEY and Judge TRIBE CONCUR.

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Votroubek’s psychosexual evaluation found he posed a “moderately high risk to re-
offend,” but the findings were “based solely on unverified answers” because Votroubek did not
take a polygraph. Without an assurance of rehabilitation, Votroubek’s difficult upbringing and
lack of familial support indicate a high likelihood of reoffending.
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