State v. Jones ( 2020 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 45905
STATE OF IDAHO, )
)
Plaintiff-Respondent, Boise, December 2019 Term
)
)
v. Opinion Filed: May 4, 2020
)
TIMOTHY ISIAH JONES, )
Karel A. Lehrman, Clerk
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Defendant-Appellant. )
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Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Peter G. Barton, District Judge.
The judgment of conviction of the district court is affirmed.
Eric Don Fredericksen, State Appellate Public Defender, Boise, for Appellant.
Sally J. Cooley argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Kale D. Gans
argued.
_______________________________
BURDICK, Chief Justice.
Timothy Isiah Jones appeals his judgment of conviction entered in district court. In
February 2018, a jury found Jones guilty of trafficking in heroin under Idaho Code section
37-2732B(a)(6)(C) and possession of drug paraphernalia under Idaho Code section 37-2734A.
On appeal, Jones argues the district court erred in admitting evidence at trial that he was on
probation. He also argues the district court erred in admitting into evidence a knife found on his
person when he was frisked by police officers. Finally, Jones argues the district court abused its
discretion during his sentencing by imposing an excessive sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 25, 2017, several officers from the Boise Police Department were conducting
surveillance on a trailer home where they suspected a wanted fugitive was staying. The officers
were also watching for drug activity, which had been reported in the area.
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After obtaining permission, one of the officers took up a surveillance position inside a
nearby hair salon. Through a window in the hair salon, the officer could see the front door of the
trailer no more than 20 to 30 feet from his location. He observed a blue Volvo station wagon
parked directly in front of the trailer. The vehicle was running and a male wearing a baseball cap
was sitting in the passenger seat. The only other occupant was a pit bull in the back seat.
After a short amount of time had passed, a second man (later identified as Jones) came
out of the trailer and opened the driver’s door of the Volvo. He reached down underneath the
front seat of the vehicle for a few seconds before returning to the trailer. A few minutes later,
Jones stepped out of the trailer and yelled to the passenger. Upon being summoned, the
passenger exited the vehicle and entered the trailer with Jones. Not long after entering the trailer,
the passenger returned to the Volvo, reached in the same spot under the seat as Jones had,
retrieved what appeared to be a small black digital scale, and went back inside the trailer. About
five minutes later, Jones and the passenger emerged from the trailer, got into the Volvo, and
drove away.
As Jones and the passenger drove away, multiple marked and unmarked patrol cars began
tailing them at various distances. After one of the officers observed Jones speeding, another
officer in a marked patrol car caught up to the Volvo and pulled it over.
As soon as Jones stopped the car, he immediately opened the driver’s side door. As the
uniformed officer approached the vehicle to contact Jones, he noticed the pit bull with its head
hanging out the back window. Concerned about walking past the dog, the officer requested that
somebody in the vehicle “grab ahold of that dog.” Jones then stepped out of the vehicle with his
hands near his waistband, twisting around so that his back faced the approaching officer the
entire time. Jones then backed up and reached into the open window of the rear passenger door,
where the dog was standing with its head hanging out the window. A second officer ordered
Jones to get his hand out of the car and the first officer grabbed Jones’s arm to pull him away
from the car. Upon being grabbed, Jones dropped to his knees on his own. At that point, the first
officer handcuffed Jones.
After walking Jones over to one of the nearby patrol cars, the first officer asked him
whether he had any weapons on him. Jones replied that he did not. The officer proceeded to pat
down Jones, noticing an object in Jones’s right pocket. He asked Jones what was in his pocket
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and Jones replied that it was a knife. At that point, the officer pulled the knife out of Jones’s
pocket and handed it to another officer.
Meanwhile, a different officer removed the pit bull (who was friendly) from the car. The
second officer, who was a K9 handler, got out his drug detection dog, which alerted on the open
door of the car. The officers then searched the car, finding a black digital scale and a small
amount of a substance they believed to be heroin wrapped in aluminum foil.
After searching the car, the officers learned that Jones was on probation, and had waived
his Fourth Amendment rights as a condition of his probation. The officers contacted Jones’s
probation officer who directed them to search him pursuant to the Fourth Amendment waiver.
The officers searched Jones and found a plastic bag in his underwear that contained what they
suspected to be heroin. The officers arrested Jones after finding the suspected heroin. A State lab
later verified that the substance in the plastic bag was 30.96 grams of heroin.
The State charged Jones with trafficking in heroin and possession of drug paraphernalia.
The State indicated before trial that it intended to elicit testimony and present evidence that
would show that Jones was on probation. Jones objected to any evidence or testimony of his
probation being admitted, arguing the probative value of such evidence was substantially
outweighed by the danger of unfair prejudice. The district court ruled that the probation evidence
was admissible under the Idaho Rules of Evidence.
At trial, the State elicited testimony that Jones was on probation and published to the jury
a recording from an officer’s on-body video camera, in which the officer can be heard discussing
Jones’s probation with him. The district court gave the jury multiple limiting instructions related
to the evidence that Jones was on probation, explaining that the evidence was only being
admitted so they could understand the circumstances surrounding the stop, not for determining
whether Jones had committed any crimes.
The State also moved to admit into evidence the knife found in Jones’s pocket when he
was patted down. Jones objected to the knife being admitted, but the district court overruled his
objection, later explaining outside the presence of the jury:
[Jones’s attorney] told me that he objected, and it was on the basis
of inflaming the jury. I considered it under Rule 403 and found that
there was prejudice; there was not unfair prejudice. And also that,
therefore, any unfair prejudice did not outweigh its probative
value.
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In that regard, knives are commonly used in drug
transactions, and it’s relevant to show that, and therefore it’s also
admissible under [Rule] 401.
The jury found Jones guilty of trafficking in heroin and possession of drug paraphernalia.
The district court sentenced Jones to a term of 30 years’ imprisonment, with 15 years fixed as the
mandatory minimum required for his conviction. Jones timely appealed.
II. ISSUES ON APPEAL
A. Did the district court err in admitting evidence that Jones was on probation?
B. Did the district court err in admitting the knife Jones was carrying at the time of his arrest
into evidence?
C. Did the district court abuse its discretion in imposing a 30-year sentence with a 15-year
fixed term?
III. STANDARD OF REVIEW
This Court reviews a trial court’s evidentiary rulings under an abuse of discretion
standard. State v. Jones, 160 Idaho 449, 450, 375 P.3d 279, 280 (2016) (citing Dulaney v. St.
Alphonsus Reg’l Med. Ctr., 137 Idaho 160, 163–64, 45 P.3d 816, 819–20 (2002)). Sentencing
decisions are also reviewed using an abuse of discretion standard. State v. Matthews, 164 Idaho
605, 607, 434 P.3d 209, 211 (2019) (citing State v. McIntosh, 160 Idaho 1, 8, 368 P.3d 621, 628
(2016)).
When this Court reviews an alleged abuse of discretion by a trial
court the sequence of inquiry requires consideration
of four essentials. Whether the trial court: (1) correctly perceived
the issue as one of discretion; (2) acted within the outer boundaries
of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its
decision by the exercise of reason.
Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018) (emphasis in original).
Whether evidence is relevant is reviewed de novo. State v. Raudebaugh, 124 Idaho 758, 764, 864
P.2d 596, 602 (1993). “The determination of whether the risk of unfair prejudice substantially
outweighs the probative value of the evidence is within the discretion of the trial court.” State v.
Cross, 132 Idaho 667, 670, 978 P.2d 227, 230 (1999) (citing State v. Porter, 130 Idaho 772, 784,
948 P.2d 127, 139 (1997)).
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IV. ANALYSIS
A. The district court did not err in admitting evidence that Jones was on probation.
Jones argues the district court erred in admitting evidence at trial that he was on
probation because it was inadmissible prior bad acts evidence under Idaho Rule of Evidence
404(b).
Under the Idaho Rules of Evidence, all relevant evidence is admissible unless one of the
Rules of Evidence, or another rule applicable to Idaho’s courts, provides otherwise. I.R.E. 402.
Thus, all the other rules of evidence governing admissibility serve as exceptions to the general
rule that all relevant evidence is admissible. Idaho Rule of Evidence 404(b) is one such
exception.
Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular occasion the person acted in
accordance with the character.” I.R.E. 404(b)(1). Stated another way, evidence of crimes,
wrongs, or other acts “is not admissible to show a defendant’s criminal propensity.” State v.
Johnson, 148 Idaho 664, 667, 227 P.3d 918, 921 (2010) (citing State v. Sheldon, 145 Idaho 225,
227, 178 P.3d 28, 30 (2008)). However, so long as the prosecution in a criminal case provides
notice of its intent to produce such evidence, it “may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” I.R.E. 404(b).
This Court has not yet had occasion to consider whether evidence of a defendant’s
probationary status constitutes evidence of a crime, wrong, or other act, such that it falls within
the purview of Rule 404(b). We conclude that it does. The only way an individual can be put on
probation is by being convicted of a crime. Thus, evidence of an individual’s status as a
probationer is evidence of a prior crime, and necessarily invokes a Rule 404(b) analysis.
We are not alone in concluding that evidence of an individual’s probationary status
qualifies as evidence of a prior crime for Rule 404(b) purposes. See State v. Derbyshire, 201 P.3d
811, 817 (Mont. 2009) (“We begin with the undisputed proposition that evidence of
[defendant’s] status as a probationer constitutes evidence that he has committed other crimes . . .
.”); State v. Brown, 699 P.2d 1122, 1127 (Or. 1985) (en banc) (“We believe evidence of the
probationary status of a defendant necessarily reveals the fact that the defendant had committed a
prior crime.”); cf. U.S. v. Manarite, 44 F.3d 1407, 1418 (9th Cir. 1995) (“[W]e think it obvious
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that evidence of a defendant’s parole status should be considered evidence of other crimes for
purposes of Rule 404(b)”).
Having determined that a defendant’s probationary status falls within the purview of Rule
404(b), we turn to the two-step analysis that is used to determine whether evidence is admissible
under this rule. State v. Capone, 164 Idaho 118, 125, 426 P.3d 469, 476 (2018) (citing State v.
Russo, 157 Idaho 299, 308, 336 P.3d 232, 241 (2014)). First, the evidence must be sufficiently
established as fact and must be relevant to a material and disputed issue “other than the character
or criminal propensity of the defendant.” Id. Second, the court must apply the balancing test from
Rule 403 to determine that “the probative value of the evidence is not substantially outweighed
by the danger of unfair prejudice.” Id.
As to the first step, evidence is relevant if “it has any tendency to make a fact more or
less probable than it would be without the evidence” and “the fact is of consequence in
determining the action.” I.R.E. 401.
We have previously recognized that evidence explaining the actions of police officers
during a search and subsequent arrest has a non-propensity purpose. State v. Yakovac, 145 Idaho
437, 446, 180 P.3d 476, 485 (2008). For example, in State v. Yakovac, we held that testimony
about an arrest warrant was admissible to explain why police officers arrested the defendant and
searched her vehicle. Id. After responding to a call from the defendant about a physical
confrontation, the officer learned that the defendant had two warrants out for her arrest on
unrelated charges Id. at 440, 180 P.3d at 479. The officers arrested her on the outstanding
warrants and searched her vehicle incident to arrest, discovering a glass pipe containing
methamphetamine residue. Id. At trial, defense counsel did not object when two police officers
mentioned the outstanding warrants while testifying about the arrest. Id. at 440–41, 180 P.3d at
479–80. In a petition for post-conviction relief, the defendant argued that her counsel was
ineffective for failing to object to the testimony about the outstanding warrants on the grounds
that they were inadmissible under Idaho Rule of Evidence 404(b). Id. at 444–45, 180 P.3d at
483–84. Holding that the warrants were admissible for a non-propensity purpose, this Court
reasoned that they were not relevant to the possession of methamphetamine charge itself, but for
another purpose, to explain why the police searched the defendant’s vehicle. Id. at 446, 180 P.3d
at 486.
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The State argues that after Yakovac, evidence is always relevant in showing the propriety
of a search conducted by law enforcement. However, we do not read Yakovac so broadly, nor
does the present case requires us to do so.
Evidence directed at police officer conduct is not necessarily relevant in every criminal
case. Where the evidence presented at trial does not give rise to any indication of impropriety in
the officer’s actions, evidence explaining the actions would not be relevant. However, police
conduct viewed in isolation can create the appearance of impropriety where none exists.
Separating actions, or even statements, from the context that surrounds them can distort reality.
When evidence that reflects negatively on police conduct is available, defendants often use it to
cast doubt on the credibility of the police officer involved or the propriety of his conduct.
Likewise, when evidence exists that casts police conduct in a positive light, prosecutors use such
evidence to bolster an officer’s credibility or to reinforce the propriety of his conduct. Therefore,
when facts arise in a case that give the appearance of improper police conduct, but additional
evidence exists that, if admitted at trial, would help demonstrate the propriety of the police
conduct, such evidence may be relevant for that non-propensity purpose.
In the present case, the district court admitted the probation evidence, not for a propensity
purpose, but to provide context for the search. We agree that the probation evidence was relevant
for the non-propensity purpose of explaining the police officers’ actions. Like in Yakovac, where
evidence of an outstanding arrest warrant was relevant to explaining why police officers
searched the defendant’s vehicle, here, evidence that Jones was on probation is relevant to
explaining why the police officers searched his underwear. In the video recording of the officers
searching Jones, the officers can first be heard telling Jones that they received permission from
his probation officer to search him pursuant to his Fourth Amendment waiver. The officers
further explain that waiver of his Fourth Amendment rights was a condition of his probation. The
discussion of Jones’s probation provides context for the next portion of the video, where one
officer holds onto Jones, who was handcuffed, while another reaches into the front of his pants
and rummages around for a few seconds before pulling the bag of heroin out of his underwear.
Without this context, the jury would be left wondering why the police suddenly conducted such
an invasive search of Jones’s person. Therefore, the probation evidence was relevant to
explaining the officers’ knowledge of Jones’s legal status as a probationer and their subsequent
search of his underwear based on that knowledge.
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As to the second step, the district court must determine whether the probative value of the
evidence is substantially outweighed by the danger of unfair prejudice to the defendant. See State
v. Pepcorn, 152 Idaho 678, 688–89, 273 P.3d 1271, 1281–82 (2012). Under Idaho Rule of
Evidence 403, otherwise relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . . .” State v. Ruiz, 150 Idaho 469,
471, 248 P.3d 720, 722 (2010).
The rule creates a balancing test. On one hand, the trial judge must
measure the probative worth of the proffered evidence. The trial
judge, in determining probative worth, focuses upon the degree of
relevance and materiality of the evidence and the need for it on the
issue on which it is to be introduced. At the other end of the
equation, the trial judge must consider whether the evidence
amounts to unfair prejudice. Here, the concern is whether the
evidence will be given undue weight, or where its use results in an
inequity, or as several commentators have suggested, “illegitimate
persuasion.” Only after using this balancing test, may a trial judge
use his discretion to properly admit or exclude the proffered
evidence.
State v. Rhoades, 119 Idaho 594, 603–04, 809 P.2d 455, 464–65 (1991) (quoting Davidson v.
Beco Corp., 114 Idaho 107, 110, 753 P.2d 1253, 1256 (1987)). To an extent, “[a]ny evidence is
prejudicial to the party whose theory of the case it contradicts.” Id. at 604, 809 P.2d at 465
(citing State v. Fenley, 103 Idaho 199, 203, 646 P.2d 441, 445 (Ct. App. 1982)). However, the
focus is on unfair prejudice. Id. “[E]vidence should be excluded if it invites inordinate appeal to
lines of reasoning outside of the evidence or emotions which are irrelevant to the decision
making process.” Id.
In this case, the jury heard several references to Jones’s probationary status over the
course of the two-day trial. On the first day of trial, one officer said the word “probation” twice
during his testimony while explaining that he had learned that Jones was on probation and
contacted Jones’s probation officer. After direct examination of the officer was finished, the
district court gave the following limiting instruction:
Members of the jury, you heard [the officer] testify and he
mentioned that -- or you learned that Mr. Jones was on probation,
you also heard the prosecutor refer to that during her opening
statement. That’s being admitted for, among other things, so you
can understand the circumstances surrounding the stop.
That’s the only basis for its admission. You’re not to use it
as probative of whether or not Mr. Jones has committed any crimes
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here in the trial before you, it’s only for understanding the
circumstances of the stop, and I’m directing you to only use it for
that purpose, concerning the circumstances of the stop not for any
weight to whether he’s guilty or not of these crimes.
On the second day of trial, the State published a video of the officers’ search of Jones.
Before searching Jones, the following conversation occurs between one of the officers and Jones:
OFFICER: Hey, we talked to your P.O.
JONES: Oh yeah?
OFFICER: Yeah. He says search you. So, let us know now –
JONES: Search me?
OFFICER: Yeah. Search you.
JONES: Alright.
OFFICER: You have a Fourth waiver. You know that right?
JONES: What’s a F– I don’t understand what –
OFFICER: Fourth Amendment waiver means you’ve waived your
right to search and seizure which means we can search you at his
direction any time. Do you understand that?
JONES: I –
OFFICER: This is a condition of your supervision. Do you
understand that?
JONES: Yes sir.
OFFICER: You signed off on all this stuff. You were explained all
this stuff.
JONES: Alright.
After the video was published for the jury, the district court gave another limiting instruction:
So jurors, that video included references to a PO. It also included
references to conditions of probation. As I mentioned yesterday,
Mr. Jones, at the time of this video, was on probation. And that’s
being told to you so that you understand the circumstances of the
stop. But you’re to give no weight to that in determining whether
he committed any crimes here as part of this trial.
The State also published an audio recording of a conversation between Jones and a
detective that took place at the police station after he was arrested. Jones’s probationary status
came up once during the interrogation. In response to a question about why Jones used heroin,
Jones answered that he could not smoke marijuana because he was on probation. This was the
only mention of Jones’s probation made in the audio recording.
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Shortly after the audio recording was published for the jury, the court took a recess for
lunch. When the jury returned from recess, the district court began by giving another limiting
instruction that the mention of probation was to be given no weight by the jury in determining
whether Jones committed the crime for which he was on trial.
In making the initial decision to allow the probation evidence, the district court engaged
in the following analysis:
I believe it is admissible under 401 -- actually, it’s relevant under
401, that does have a tendency to make any fact more likely or not.
The question is under 403 and whether or not I believe it’s
prejudice to [Jones]. The question is unfair prejudice and the
question is does the unfair prejudice substantially outweigh the
probative value.
The underlying issue is it’s a probation. The allegation here
-- there is no way for a jury to know how long ago it is, what the
crime is. A lot of people in America can be on probation and it can
be for a completely unrelated fact, and I think [the State’s]
argument is well-taken you have to have a two-part search, some
invasiveness and that is a fact to be considered in the magnitude of
what the unfairness to [Jones’s] case.
So I’ll allow it. I will take the motion to say that’s as far as
it goes to what the video will show about it, it won’t go into what
the actual probation is for, whether it’s felony, misdemeanor,
anything else, unless, [Jones], you want to put that in play.
After a break, the district court offered the following additional analysis in support of its
decision to allow the probation evidence:
We analyzed [the probation evidence] under 401 and 403, and
under 404, as [an] additional part of the analysis, 404(b), evidence
of other crimes. It’s arguable that mentioning probation is evidence
of the crimes, there has to have been another crime previously
done. It’s not admissible to prove the character of a person, to
show the person acted in conformity therewith. That’s not what is
being done here, it’s not being admitted for that purpose. I think
the State’s argument is correct it’s just to show the context of the
search, and therefore under 404(b)(2), it’s also under my discretion
and I’ll allow it. That’s my additional thoughts.
We acknowledge that the district court’s application of the Rule 403 balancing test in this
case was minimal. However, we cannot say that the district court abused its discretion. The
district court recognized that the decision to admit the probation evidence under Rule 404(b) was
a matter of discretion when it stated “under 404(b)(2), it’s also under my discretion and I’ll allow
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it.” The district court acted within the outer boundaries of its discretion, and consistent with the
applicable legal standards, when it recognized that the evidence was Rule 404(b) evidence and
engaged in both a Rule 401 and Rule 403 analysis to determine the evidence’s admissibility. The
district court also reached its decision by the exercise of reason. The district court mentions the
invasiveness of the search which goes to the probative value of the probation evidence because
the evidence is used to provide context to the invasive search. The district court weighed the
probative value of the probation evidence against its potential prejudice to Jones, reasoning there
was no way for the jury to know how long ago the underlying crime was committed. The district
court also reasoned the prejudicial effect of the probation evidence could be limited by not
presenting evidence to the jury about what crime Jones was on probation for, or even whether the
underlying crime was a felony or misdemeanor.
The district court’s statement “a lot of people in America can be on probation” seemingly
suggests that the jury hearing about Jones’s probation would not have much prejudicial effect
because being on probation is so common that it will not impact the jury’s perception of him.
This portion of the district court’s reasoning is dubious, and was not supported by adequate
foundation in this case. However, one vague, questionable statement does not invalidate the
remainder of the district court’s analysis. In reaching its ultimate decision that the probation
evidence was admissible, the district court engaged in the balancing test under Rule 403 and
found that the probative value of the evidence was not substantially outweighed by the danger of
unfair prejudice. Out of precaution, the district court also provided several limiting instructions
to the jury, further reducing any prejudicial effect of the probation evidence on Jones. We find
the district court’s analysis was sufficient to conclude that it was reached by the exercise of
reason. Thus, the district court did not abuse its discretion in determining that the probative value
of the probation evidence was not substantially outweighed by the danger of unfair prejudice.
Despite the district court’s application of Rules 404(b), 403, and 401, Jones contends that
“context of the search” is just another way of saying res gestae, a theory of admissibility recently
rejected by this Court in State v. Kralovec, 161 Idaho 569, 388 P.3d 583 (2017). “Res Gestae
evidence is ‘other acts that occur during the commission of or in close temporal proximity to the
charged offense which must be described to complete the story of the crime on trial by placing it
in the context of nearby and nearly contemporaneous happenings.’” Id. at 573, 388 P.3d at 587.
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In Kralovec, a man was arrested for public intoxication and resisting and obstructing
arrest. Id. at 571, 388 P.3d at 585. He resisted and threatened officers as they transported him to
jail and later injured an officer who was removing the man’s restraints after intake. Id. At trial,
the State sought to introduce audio evidence of the man’s arrest and transport to jail to show
knowledge and intent pursuant to Idaho Rule of Evidence 404(b). Id. The district court
determined the evidence was admissible under both the theory of res gestae and pursuant to Rule
404(b). Id. On appeal, this Court explained that the res gestae doctrine was a common law theory
of admissibility used by courts before the promulgation of the Idaho Rules of Evidence. Id. at
573–74, 388 P.3d at 587–88. Since the Idaho Rules of Evidence have replaced the common law
rules of admissibility, “evidence previously considered admissible as res gestae is [now] only
admissible if it meets the criteria established by the Idaho Rules of Evidence.” Id. at 574, 388
P.3d at 588. Having considered the shift away from the common law to the Idaho Rules of
Evidence, this Court “decline[d] to perpetuate the use of the res gestae doctrine in Idaho,”
upholding the district court’s decision based solely on its analysis of Rule 404(b). Id. at 573–75,
388 P.3d at 587–89.
The holding in Kralovec does not make all evidence that would fall within the definition
of res gestae at common law inadmissible. Rather, Kralovec explains that the Idaho Rules of
Evidence govern the admissibility of evidence, rather than common law principles. Evidence that
would have been considered res gestae at common law is admissible only if it meets the
requirements of the Idaho Rules of Evidence. Therefore, whether the evidence of Jones’s
probation would have been considered res gestae evidence at common law is immaterial to its
admissibility. Rule 404(b) and the other Rules of Evidence control our analysis. Because the
probation evidence was relevant for a non-propensity purpose, and because the district court did
not abuse its discretion in ruling that the probation evidence’s probative value was not
substantially outweighed by the danger of unfair prejudice, we hold the district court did not err
in admitting the probation evidence at trial.
Finally, Jones argues the district court abused its discretion in admitting evidence under
Rule 404(b) without finding that the State gave notice of its intent to use the evidence or
excusing lack of pretrial notice for good cause shown. In this case, the State did not file notice
before or during trial that it intended to solicit the testimony that Jones was on probation or to
play the video in which Jones’s probation was mentioned.
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Idaho Rule of Evidence 404(b) requires that the prosecutor give notice of its intent to
admit evidence of prior crimes, wrongs, or other acts. I.R.E. 404(b)(2). Such notice must be
given “reasonably in advance of trial” or “during trial if the court, for good cause shown, excuses
lack of pretrial notice.” Id.
Though a prosecutor’s failure to provide Rule 404(b) notice ordinarily bars prior bad acts
evidence from admission, we will not rule on the Rule 404(b) notice issue because it was not
preserved for appeal. See State v. Sheldon, 145 Idaho 225, 230, 178 P.3d 28, 33 (2008) (citing
State v. Cannady, 137 Idaho 67, 72, 44 P.3d 1122, 1127 (2002)) (“In State v. Cannady . . . we
stated a prosecutor’s failure to provide 404(b) notice was ‘inexcusable’ but declined to rule on
the issue because it was not preserved for appeal.”).
To preserve an issue for appeal, a party must make a timely objection on the record
below. “An objection to the admission of evidence must state the specific grounds for the
objection, if it is not apparent from the context.” Cannady, 137 Idaho at 72, 44 P.3d at 1127
(citing State v. Martin, 118 Idaho 334, 796 P.2d 1007 (1990)); I.R.E. 103(a)(1).
Jones objected to the use of the probation evidence under Rule 401 because it was not
relevant and under Rule 403 on the grounds that its probative value was substantially outweighed
by the danger of prejudice to his case. When asked to expand upon his objection, Jones
explained:
It’s simply more prejudicial . . . than it is probative of any issue in
this case. Really the issue here is did [Jones] possess or not possess
heroin and was it or was it not more than 28 grams of that product.
The fact he’s on probation just leads to the inference, I think, even
with a jury who may not and likely are not familiar with the law . .
. to say, hey, he’s on probation, he probably did do something bad.
State doesn’t need it, we don’t need to sully up the record on that.
However, in making his objection, Jones did not specifically mention the notice
requirement of Rule 404(b). Nor is it apparent from the context that his objection was based on
the notice requirement. Jones did not refer generally to being surprised by the probation
evidence. He made no statement that in any way suggested that he had not received notice of the
State’s intent to use the probation evidence. When the district court later brought up Rule 404(b)
on its own, Jones did not attempt to renew his objection or argue that the State had failed to
provide notice of its intent to use Rule 404(b) evidence. Therefore, Jones failed to preserve his
404(b) notice argument for appeal.
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Unobjected to error may still be subject to review on appeal if it constitutes fundamental
error. State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010). However, in a criminal case,
error in the admission of a defendant’s prior crimes under Rule 404(b) is not fundamental error.
Cannady, 137 Idaho at 72–73, 44 P.3d at 1127–28. Therefore, even if the district court erred in
admitting the probation evidence without requiring the State to provide notice under Rule 404(b),
we decline to address the issue because Jones failed to preserve it by objecting below and the
evidence’s admission did not constitute fundamental error.
B. The district court erred in admitting the knife Jones was carrying at the time of his
arrest into evidence, but the error was harmless.
Jones argues the district court erred in admitting the knife into evidence because it was
not relevant to the charges of heroin trafficking or possession of drug paraphernalia.
1. The knife was not relevant.
As explained above, evidence is relevant when “it has any tendency to make a fact more
or less probable than it would be without the evidence” and “the fact is of consequence in
determining the action.” I.R.E. 401. “Whether a fact is material is determined by its relationship
to the legal theories presented by the parties.” State v. Sanchez, 165 Idaho 563, 572, 448 P.3d
991, 1000 (2019) (quoting State v. Koch, 157 Idaho 89, 100–01, 334 P.3d 280, 291–92 (2014)).
Jones was convicted of trafficking in heroin under Idaho Code section
37-2732B(a)(6)(C). Under that statute, a person is guilty of trafficking in heroin if he is
“knowingly in actual or constructive possession of . . . any . . . substance containing a detectable
amount of [heroin]” and the quantity involved is 28 grams or more. I.C. § 37-2732B(a)(6)(C).
Intent to distribute or deliver the heroin is not an element of the offense. See State v. Rogerson,
132 Idaho 53, 56, 966 P.2d 53, 56 (1998).
Jones was also convicted of possession of drug paraphernalia under Idaho Code section
37-2734A. Under the possession of drug paraphernalia statute, “[i]t is unlawful for any person to
use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow,
harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack,
store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a
controlled substance.” I.C. § 37-2734A.
In the present case, the district court determined the knife was relevant because “knives
are commonly used in drug transactions.” However, the district court cited no existing case law
to support this conclusion. Nor did the district court refer to any testimony or other evidence in
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the record to support its conclusion. In fact, there is no case law in Idaho suggesting that knives
are commonly used in drug transactions and there was no evidence presented at trial upon which
the district court could have based its conclusion. It was error to determine the knife was relevant
for that reason.
The State argues that the knife was relevant to show Jones’s lack of credibility because
he stated that he was not carrying any weapons when asked by an officer and the knife was found
in his pocket when the officer patted him down moments later. In support of its argument, the
State cites State v. Ehrlick for the proposition that “[e]vidence relating to the credibility of a
witness is always relevant.” 158 Idaho 900, 926, 354 P.3d 462, 488 (2015) (citing Mulford v.
Union Pac. R.R., 156 Idaho 134, 141, 321 P.3d 684, 691 (2014)). While the State cites a valid
principle of law, its argument lacks merit because Jones did not testify. Since he was not a
witness, his credibility was not at issue.
2. The district court’s error admitting the knife into evidence was harmless.
“In the case of an incorrect ruling regarding evidence, this Court will grant relief on
appeal only if the error affects a substantial right of one of the parties.” State v. Ehrlick, 158
Idaho 900, 911, 354 P.3d 462, 473 (2015) (quoting State v. Shackelford, 150 Idaho 355, 363, 247
P.3d 582, 590 (2010)); see also I.C.R. 52 (“Any error, defect, irregularity or variance that does
not affect substantial rights must be disregarded.”). An abuse of discretion may be found
harmless if a substantial right is not affected. Ehrlick, 158 Idaho at 911, 354 Idaho at 473 (citing
Shackelford, 150 Idaho at 363, 247 P.3d at 590)). “To establish harmless error, the State must
prove ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.’” Id. (quoting State v. Perry, 150 Idaho 209, 221, 245 P.3d 961, 973 (2010)).
In this case, the State had video evidence of a police officer pulling a plastic bag
containing a brown substance out of Jones’s underwear. The officers who searched Jones
testified about finding the plastic bag and suspecting that it contained heroin. There was also
testimony that the State drug lab positively identified the substance inside the bundle as 30.96
grams of heroin. While Jones did not testify, the audio recording of his interrogation was
introduced at trial, where he admitted to a detective that he used heroin. When asked in the
interview what he was doing with an ounce of heroin, Jones replied, “smoking it.” Based on the
strength of the State’s other evidence and the minimal probative value of the knife, we find
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beyond a reasonable doubt that the jury would have reached the same result absent the district
court’s error. Therefore, the error was harmless.
C. The district court did not abuse its discretion in imposing a 30-year sentence with a 15-
year fixed term.
Jones argues that “given any view of the facts, his unified sentence of thirty years, with
fifteen years fixed, is excessive.” He also argues the district court “failed to consider the fact that
[he] was aware of his heroin addiction and that, with programming, [he] could likely be
successful in the community.” Jones also points to a number of letters written to the court by his
family and friends illustrating his good character and the availability of support for him within
the community. Finally, he claims that if the district court had “properly considered his
addiction, substantial support within the community, good work history, and remorse, it should
have imposed a less severe sentence.”
“When reviewing whether a sentence is excessive, we review all the facts and
circumstances in the case and focus on whether the trial court abused its discretion in fixing the
sentence.” State v. Baker, 136 Idaho 576, 577, 38 P.3d 614, 616 (citing State v. Zaitseva, 135
Idaho 11, 13 P.3d 338 (2000)). Where a district court imposes a sentence within the statutory
limits, “the appellant bears the burden of demonstrating that it is a clear abuse of discretion.”
State v. Matthews, 164 Idaho 605, 608, 434 P.3d 209, 212 (2019) (quoting State v. Miller, 151
Idaho 828, 834, 264 P.3d 935, 941 (2011)). “In deference to the trial judge, this Court will not
substitute its view of a reasonable sentence where reasonable minds might differ.” Id. (quoting
State v. Stevens, 146 Idaho 139, 148–49, 191 P.3d 217, 226–27 (2008)).
When appealing a sentence reviewed under the abuse of discretion standard, “the
appellant ‘must establish that under any reasonable view of the facts, the sentence was excessive
considering the objectives of criminal punishment.’” Id. (quoting Baker, 136 Idaho at 577, 38
P.3d at 615). “Those objectives are (1) protection of society; (2) deterrence of the individual and
the public generally; (3) the possibility of rehabilitation; and (4) punishment or retribution for
wrong-doing.” Id. (quoting State v. Varie, 135 Idaho 848, 856, 26 P.3d 31, 39 (2001)) (quotation
marks omitted).
In this case, the district court did not abuse its discretion in sentencing Jones. The district
court properly considered four factors in determining Jones’s sentence: “protection of society,
deterrence of crime, . . . rehabilitation, and punishment.” Idaho Code section 37-2732B(a)(6)(C)
provides a mandatory minimum sentence of a 15-year fixed term for trafficking in heroin
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convictions in which the quantity of heroin exceeds 28 grams. The maximum sentence is
imprisonment for life. I.C. § 37-2732B(a)(7). Jones’s sentence of 30 years with 15 years fixed
was well within the boundary set by the statute. The district court considered the amount of
heroin, the facts specific to the crime as it was committed, and Jones’s prior criminal background
in sentencing Jones.
Jones’s arrest in this case was not his first run-in with law enforcement. Jones had a
felony conviction for carrying a concealed weapon in Ohio in 2006. He had two probation
violations associated with that case. In 2013, he was convicted of resisting or obstructing officers
in Idaho. In 2014, Jones was convicted of possession of marijuana in Idaho. Jones received his
second felony conviction in 2015 for possession of more than three ounces of marijuana. He was
on probation for the 2015 felony when the incident leading to his present conviction occurred. In
light of the entire record before this Court, the sentence imposed by the district court was well
within its discretion. Therefore, we hold that the district court did not abuse its discretion in
sentencing Jones.
V. CONCLUSION
In consideration of the foregoing, we hold: (1) the district court did not err by admitting
evidence that Jones was on probation; (2) the district court erred in admitting the knife into
evidence, but the error was harmless; and (3) the district court did not abuse its discretion in
sentencing Jones to 30 years’ imprisonment with the 15-year mandatory minimum fixed.
Accordingly, the district court’s judgment of conviction is affirmed.
Justice BEVAN CONCURS.
STEGNER, J., concurring in the result.
I concur with the result the majority has reached, but I disagree with its reasoning. While
I agree with the majority that Jones’ status as a probationer qualifies as evidence of some other
crime for purposes of Idaho Rule of Evidence 404(b), I diverge from the majority’s conclusion
that this evidence is relevant for another non-propensity purpose. Nevertheless, I conclude the
erroneously admitted evidence constituted harmless error, so I ultimately concur that the
judgment of conviction should be affirmed.
The majority holds that the fact that Jones was on probation was relevant to provide
context for the search, reasoning that this fact is relevant both to why the officers were able to
perform a search, and why the search was so invasive. However, these issues are not relevant
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because they are not facts of consequence in determining this action. Nothing about the fact of
probation is probative or material to the State’s burden of establishing the elements of the crimes
with which Jones was charged. Accordingly, I cannot agree that the fact of Jones’ probationary
status is relevant. See I.R.E. 401.
In my view, the justification provided for admitting evidence that Jones was a probationer
is simply the res gestae doctrine under a new coat of paint. As this Court defined it in State v.
Kralovec, 161 Idaho 569, 573, 388 P.3d 583, 587 (2017), res gestae evidence constitutes “other
acts that occur during the commission of or in close temporal proximity to the charged offense
which must be described to ‘complete the story of the crime on trial by placing it in the context
of nearby and nearly contemporaneous happenings.’” Kralovec, 161 Idaho at 573, 388 P.3d at
587 (citation omitted). This Court rejected the res gestae doctrine in Kralovec, concluding “that
evidence previously considered admissible as res gestae is only admissible if it meets the criteria
established by the Idaho Rules of Evidence.” Id. at 574, 388 P.3d at 588. I fail to understand how
Jones’ probationary status can be found “relevant for the non-propensity purpose of explaining
the police officers’ actions” without resorting to the res gestae doctrine.
It is also because of Kralovec that I disagree with the majority’s application of State v.
Yakovac, 145 Idaho 437, 446, 180 P.3d 476, 485 (2008), as an example of I.R.E. 404(b) evidence
being admitted to provide context for other evidence. Yakovac predates Kralovec. In Yakovac,
evidence of Yakovac’s outstanding arrest warrant was determined to be relevant “to explain the
police officers’ actions.” 145 Idaho at 446, 180 P.3d at 485. After this Court made it clear in
Kralovec that res gestae evidence needed to satisfy the Idaho Rules of Evidence, contextual
justifications like those offered in Yakovac—and relied on by the majority, here—are
inadmissible under the Idaho Rules of Evidence.
Further, the legality of a search is not the concern of the jury. The legality of a search is a
question of law for the judge to determine because unlawfully seized evidence must be excluded
from trial. See State v. Cohagan, 162 Idaho 717, 720, 404 P.3d 659, 662 (2017). No matter the
other questions a jury must decide, why a search is proper is not of consequence to an action
once it is deemed lawful. Here, the State needed only to prove the elements of trafficking in
heroin and possession of drug paraphernalia. Why then was the jury somehow entitled to hear
inherently prejudicial information about Jones in order to make the search appear more proper?
To ameliorate “the appearance of improper police conduct,” as the majority puts it. However, if
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that were a legitimate concern the jury could have easily been instructed with respect to the
bodycam footage that the search and its scope were proper, without the need to disclose Jones’
probationary status.
I would find admission of this evidence harmless error because the error of admitting this
404(b) evidence was unimportant in relation to all of the other evidence properly admitted
against Jones. See Yates v. Evatt, 500 U.S. 391, 404 (1991). For this reason, I concur with the
result the majority reached.
Justices BRODY and MOELLER CONCUR.
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