State v. Ogden ( 2023 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 49958
STATE OF IDAHO, )
) Boise, January 2023 Term
Plaintiff-Respondent, )
) Opinion Filed: March 21, 2023
v. )
) Melanie Gagnepain, Clerk
DARIN MARSHALL OGDEN, )
)
Defendant-Appellant. )
____________________________________)
Appeal from the District Court of the Fourth Judicial District of the State of Idaho,
Ada County. Steven J. Hippler, District Judge.
The district court’s judgment is affirmed in part, reversed in part, and remanded.
Eric D. Fredericksen, State Appellate Public Defender, Boise, attorney for Appellant.
Brian Dickson argued.
Raúl R. Labrador, Idaho Attorney General, Boise, attorney for Respondent.
Kacey Jones argued.
_________________________________
BEVAN, Chief Justice.
This case comes to the Court on a petition for review from the Idaho Court of Appeals.
Darin Ogden appeals from his judgment of conviction for possession of methamphetamine and
drug paraphernalia. During a consensual encounter, officers searched Ogden’s vehicle outside of
a business and arrested Ogden for felony possession. At trial, the State introduced redacted police
officer on-body video showing the search. The nature and scope of the video became an issue
during trial. The jury found Ogden guilty on both counts. At sentencing, Ogden objected to
portions of a presentence investigation (PSI) report that included investigative and third-party
records from two pending unrelated cases, and seven allegedly inaccurate statements in the PSI.
Ogden’s objections to the PSI were largely denied. Ogden appealed to the Court of Appeals, which
affirmed, and he then petitioned for review to this Court, which was granted.
On appeal, Ogden argues two main trial errors. First, a response he gave to officers that
was recorded on the video, but redacted, should have been admitted. Second, Ogden argues it was
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error for the district court to permit irrelevant evidence to be presented to the jury. Given the
accumulation of these alleged multiple errors, Ogden argues that his conviction must be vacated.
Ogden also asserts error regarding the PSI. He argues that while the district court agreed to strike
some documents, those records remained in the PSI. He also asserts that although the district court
affirmatively accepted five of his corrections, it failed to redline the PSI accordingly. For the
reasons discussed below, we affirm the district court’s decision in part, reverse in part, and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Officer Chris Wirshing with the Boise Police Department responded to a Fred Meyer store
in Boise, Idaho. Dispatch had received a call from a Fred Meyer employee about a female standing
in the summer sun for hours. When Wirshing arrived, he noticed a man, later identified as Darin
Ogden, spray painting a Volkswagen Jetta in the south end of the parking lot away from the other
cars. After Wirshing completed a welfare check on the female that the Fred Meyer employee had
called about, he then asked the employee if he knew who was in the parking lot spray painting a
vehicle. As Wirshing asked this question, Ogden walked by Wirshing and the employee and went
inside Fred Meyer.
Wirshing walked to the car Ogden had been painting and looked around. While Wirshing
was standing beside the car, Ogden walked out of Fred Meyer and approached Wirshing. Ogden
and Wirshing had a brief conversation about the vehicle. Ogden said he was painting the vehicle
to make it look nice for a date he had later in the day. During this discussion, Wirshing noticed a
dark-colored glass device protruding from Ogden’s right front pants pocket, which Wirshing
identified as a pipe used to smoke methamphetamine.
Wirshing asked Ogden if the device inside his pocket was a pipe. Ogden confirmed it was
and told Wirshing he had found the pipe. Ogden also told Wirshing he was an addict and hoped he
would find something inside the pipe. While waiting for other officers to arrive, Wirshing
continued to speak with Ogden. When those officers arrived, Wirshing placed Ogden in handcuffs
and gave him the option to sit on the bumper of his car or to sit in the patrol car. Ogden asked and
was allowed to sit on the curb.
Once Ogden was detained, Wirshing requested Ogden’s consent to search the car’s interior.
Ogden refused. As another officer ran the vehicle identification number (VIN) on the car, Wirshing
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ran his drug-detecting canine, Rosco, around the vehicle. Rosco alerted to the presence of
narcotics. Officers Wirshing, Matt Janicek, and Joshua Sontag searched Ogden’s vehicle.
The search revealed a Springfield Armory .45 caliber handgun between the driver’s seat
and center console. The firearm had six rounds in the loaded magazine, but no bullets in the
chamber. Janicek discovered an uncapped hypodermic syringe in the car. Sontag located a black
and silver lockbox in the backseat. Ogden told Sontag he did not know the combination to the
lockbox and said the box came with the vehicle when he bought it. Sontag forced open the box
and uncovered $221.00 in cash, a plastic sandwich bag containing a white crystalline substance
later identified as methamphetamine, a box of a .45 caliber ammunition, hypodermic needle caps,
and three bus tickets with the name Marshall Ogden. Ogden admitted buying the bus tickets, but
denied that they were inside the box. The box of ammunition found inside the lockbox was missing
six bullets and matched the six bullets found loaded in the .45 caliber handgun.1 Officers also
found 22.9 grams of methamphetamine.
Following the search, Wirshing read Ogden his Miranda2 rights. Ogden then confirmed he
owned the gun, but he denied owning the box. Ogden stated the box came from the same people
from whom he bought the car. Ogden was arrested and charged with felony possession of a
controlled substance and a misdemeanor for possession of drug paraphernalia.
B. Procedural Background
Ogden’s jury trial was scheduled for March 26, 2019. Ogden’s defense strategy was to
point to missing and alleged destruction of evidence in the case. His strategy included an allegation
that Sontag had not discovered the bus tickets during his initial search, but later–after the box was
searched a second time. Before trial, the State gave Ogden a redacted body camera video it
intended to introduce, showing an exchange between Ogden and Sontag in the parking lot. The
video led to two issues during the trial: (1) statements made by Ogden to the officers; and (2) a
statement about one officer being “nervous” upon finding a tactical vest in Ogden’s car.
1. Ogden’s statements in the video.
Ogden objected to the State’s redaction of the video under the doctrine of completeness,
arguing in a pretrial hearing, “[t]hey talk about drugs in the box but don’t mention bus tickets and
they’ve redacted that.” Discussing the officer’s inventory of the box, Ogden continued, “at the
1
This fact is disputed. The bullets are not in evidence. They were destroyed at Wirshing’s request.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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time of the inventory, there’s no bus tickets in the box. It’s not until almost ten minutes later the
bus tickets suddenly appear in the box and the State has redacted this part of the video evidence.”
The district court declined to rule on Ogden’s objection at that time, reserving ruling until the State
introduced the video at trial.
During trial, outside the presence of the jury, the judge and counsel had several exchanges
about the admission of the video exhibit. The following is the first discussion:
THE COURT: What it is, my view of the video, the officer is basically explaining,
look, here is what we found in your car, we found dope, we found your gun, we can
match the bullets up, the bullets are the same, he yells at the officer, “What caliber
are the bullets?"
“.45.”
“All right. Same bullets.”
And then he says, “Anything else in there,” and the officer says, “We also found
bus tickets.”
And the officer comes over and he says, “You found bus tickets with Ogden on it?"
“Yeah.”
“Where were those?”
“In the same box.”
And you don’t want any of that in?
[PROSECUTOR]: It’s not that I don’t want that in, I do want that in, don’t get me
wrong, but in my initial redactions, my thought was that’s not going to come in
over an objection[.] [I]f they want that in along with denials that any of the stuff is
his, because that’s what is also included, I believe.
THE COURT: It’s his denial. He looks surprised the bus ticket would be found in
the box. He says, “In the box? That’s not in the box.”
I didn’t see anywhere else in the tape where the bus tickets were mentioned. Am I
wrong about that?
[DEFENSE]: No, you’re right about that, Judge.
THE COURT: So I don’t see how his denial of the bus tickets is relevant to any
other part of the tape for completeness because the bus tickets are not in any other
part of the tape. So if the state excludes all that, his response to the bus ticket doesn’t
complete anything.
[DEFENSE]: Your Honor, I think it’s part of the completeness doctrine. The reason
I think that it is is because the officer that comes over and says we found bus tickets
in there, previously in the tape had inventoried the box and there hadn’t been bus
tickets in there when he did that. There was no bus tickets in there. He says there’s
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cash, there’s ammunition, needles and there’s meth. And Officer Wirshing said,
“There’s meth?” And that’s when he took him over.
THE COURT: So if you want to cross-examine the officer that is called or put him
on and say, “Hey, you didn’t identify bus tickets, did you,” and then for some reason
you want to the play the contemporaneous video where he then says the bus tickets,
I would probably let the officer’s statements in. I don’t think I would let the
defenses [sic] statement in, given that you’re offering it because it’s not complete -
- you’re the one that is offering it.
[DEFENSE]: Understood. I would even be happy with the officer’s statement
coming in and cutting it off before he says, “What bus tickets.” It’s not the
defendant’s statement we want in, it’s the officer’s statement. They are now alleging
bus tickets for the first time and that’s only [sic] place they allege it in the video.
[PROSECUTOR]: We can make that happen, Judge.
THE COURT: You’re good with that?
[PROSECUTOR]: Yeah. If he’s not going to get his client’s statement in and he
wants my officer’s.
THE COURT: Just your officer saying there’s bus tickets in the thing. You agree
with that?
[DEFENSE]: Yeah, that’s fine. And if we decide we want his [Ogden’s] response
in, we can have him testify and show that video.
THE COURT: Have who testify?
[DEFENSE]: Our defendant.
THE COURT: Well, no. He can testify. You can’t show the video.
[DEFENSE]: I see. Okay.
THE COURT: Because it’s still hearsay.
(Emphasis added).
During the State’s case-in-chief, Sontag testified to finding the black security lockbox
inside Ogden’s vehicle. On cross-examination, Sontag acknowledged he did not remember seeing
bus tickets when he first opened the box. When Wirshing took the stand, the parties stipulated to
admit the body camera video, which showed Sontag opening the box. After the video played, the
court recessed for the day. The next day, Ogden and the State resumed arguments about the video.
Ogden requested to play another portion of the video in which Wirshing references bus tickets:
[DEFENSE]: Video of Officer Sontag coming over and telling Officer Wirshing
and the defendant that there are bus tickets.
THE COURT: The part I said you couldn’t play yesterday?
[DEFENSE]: That was before Officer Sontag testified.
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THE COURT: Okay. What did officer testify [sic] that opened up your client’s
hearsay?
[DEFENSE]: Your Honor, Officer Sontag testified when I asked him about having
told the defendant and Officer Wirshing about the bus tickets, that he didn’t
remember doing that. I asked him if he had seen the video, he said he couldn’t
remember any of that. It’s Officer Sontag’s late disclosure of the bus tickets, the
defense finds that suspicious. And the way that he comes over and talks about it --
THE COURT: So he’s already shown the part where he comes over when the
officer is standing next to your client and he says, “what else did you find,” and he
says, “the bus tickets,” and he said, “were they in the box,” and he starts walking
towards him and he said, “yeah, they were in the box,” or, “yeah, they were.”
[DEFENSE]: Your Honor, we are not wanting it for the hearsay value at all. I would
agree to a limiting instruction –
THE COURT: Stop. What in addition to that part do you want to play? Your client’s
reaction?
[DEFENSE]: Well, it’s in there but it’s part of the completeness doctrine, your
Honor.
THE COURT: Didn’t I rule on that yesterday?
[DEFENSE]: I believe it was before Officer Sontag’s testimony. Officer Sontag, I
believe, testified that he did not say this in front of the defendant.
...
It’s not offered for the truth of the matter asserted by my client. I would be happy
to not discuss what my client said or his denial - -
Ogden also requested that the court allow him to play an earlier portion of the video where
Wirshing repeated a statement made by Ogden, “if you’re telling me the truth you didn’t know it
was in that box, you don’t know anything about the box,” and the district court agreed.
The court explained:
THE COURT: So I think the defense can offer the statements of the police officers
because those are statements of a party opponent. Now, I appreciate the State’s
position that some of that is the officer repeating what the other person said, but by
repeating it the way he did, he is arguably adopting those statements, and so I think
that they are admissible as statements of a party opponent by the defense. I think
that in fairness to what happened before where the State cut that off where they
were just sort of unattached statements of the police officer about what they found,
I think in order to put those into fair light, they ought to be played in relation to the
defense’s immediate response to those alleged findings. Furthermore, I think the
defendant’s -- as I thought about it and have seen it again, I think the defendant’s
immediate responses are excited utterances.
6
As the trial proceeded, and Ogden continued his examination of Wirshing, the court
requested a bench conference. As the attorneys approached, the court explained:
THE COURT: Based on what you told me before, I’m not going to let you use the
second video, the one that shows him with the -- where your client reacts to the
finding of the bus tickets because the more I think about it, the only reason that
came in at all is because you wanted it in, and therefore, my concern about Mr. Guy
-- my concern about the State putting in a hearsay statement of the officers in
abstract is irrelevant.
...
We can talk about it further. I wanted to give you that heads-up. I’ve been thinking
about, as we sat here, and I realize you’re the one that wanted that in. The more I
think about it, the more you’re the one that wanted it in means I’m not going to let
you bootstrap your client’s hearsay statement in simply because you wanted the
officer –
Thus, the district court ultimately did not allow Ogden to admit the additional portion of the video.
2. The officer’s statement about being “nervous.”
Before the trial, Ogden had made an objection in limine to the video including a statement
made by Wirshing about feeling “nervous” when he found a tactical vest inside Ogden’s vehicle.
During the argument, the district court acknowledged it was likely not relevant and should be
redacted:
THE COURT: I don’t think the fact that the vest makes the officer nervous is
relevant. Had you charged him with possession with intent, the gun and the vest
and all that might be more relevant because that’s more consistent with a dealer,
but you didn’t charge it that way, so it’s not relevant.
[THE STATE]: I don’t mean to cut the [c]ourt off, I’m sorry. The only thing I’m
taking out of that portion is not the whole portion itself, just the officer saying, “hey,
it makes me nervous when I see people rolling around with tactical gear and
firearms."
...
THE COURT: I think things found in the vehicle that he admits to makes it more
likely other things found in the vehicle are his, as well. It goes to his ownership,
control and possession of the items in the car.
[DEFENSE COUNSEL]: Judge, I’d just argue he has claimed ownership of the car
and that it’s a waste of everyone’s time to talk about a tac vest inside it.
THE COURT: I appreciate that, but I think the more things he has in that car that
are attributable to him is evidence from which an inferences [sic] that other things
are found in the car are also his. So I think it is relevant. [Except] the part about,
quote, “it makes me nervous.”
7
Later in the trial, the State prepared to play the video for the jury that referenced the
statement the district court had instructed it to redact, but the State had failed to follow through
with the court’s directive. The defense again objected to the officer’s statement about being
nervous being played to the jury, stating, “Judge, I thought we already agreed to take it out.” The
district court reconsidered its in limine ruling and said:
Well, I originally asked them to take it out because I thought the relevance was
minimal there. At this point I’m going to go weigh everything under 403, include
relevance, prejudice, which I don’t think there is really any. I don’t think that’s a
harmful statement. The officer said it kind of jokingly. And the concern I have is
the waste of time and the trial and everything else, I don’t think it causes any harm
to have it in, so I’m going to go forward with it.
[DEFENSE COUNSEL]: Okay.
3. The PSI.
Following presentation of the evidence, the jury found Ogden guilty of possession of a
controlled substance, and possession of drug paraphernalia. The district court ordered a
presentence investigation. When the PSI was filed with the court, it contained statements to which
Ogden later objected. Ogden also objected to police reports and several hundred pages of medical
records in the PSI that related to a different case pending against him.3 The district court continued
the sentencing hearing and requested briefing on the issue. The district court agreed to strike the
medical records but not the police records. The district court then sentenced Ogden to seven years
in prison with two years fixed for possession of methamphetamine, and time served for possession
of paraphernalia. Ogden’s appeal was first heard by the Court of Appeals, which affirmed. Ogden
then petitioned for review to this Court, which was granted.
II. ISSUES ON APPEAL
1. Did the district court err by preventing Ogden from presenting his response to the officer’s
statement about the bus tickets as evidence even though the court had determined his
response qualified as an excited utterance?
2. Did the district court err by allowing the State to present evidence which the district court
determined was not relevant?
3. Is there an accumulation of trial errors that would require Ogden’s conviction to be vacated
even if each error is individually harmless?
4. Did the district court err by failing to redline the PSI?
3
That case has since been adjudicated and appealed. See State v. Ogden, __ Idaho __, 519 P.3d 1198 (2022).
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III. STANDARDS OF REVIEW
“When reviewing the trial court’s evidentiary rulings, this Court applies an abuse of
discretion standard.” State v. Chambers, 166 Idaho 837, 840, 465 P.3d 1076, 1079 (2020) (quoting
State v. Jeske, 164 Idaho 862, 867, 436 P.3d 683, 688 (2019)). Whether a statement is hearsay at
all is a question of law. State v. Roman-Lopez, No. 49565, 2023 WL 1807021, at *5 (Idaho Feb.
8, 2023), but here the parties agree that the statement was hearsay and argue whether an exception
applies. That question is subject to an abuse of discretion standard. Id. “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. Hall, 163 Idaho 744, 781, 419 P.3d 1042, 1079 (2018) (quoting
State v. Shutz, 143 Idaho 200, 202, 141 P.3d 1069, 1071 (2006)). “Sentencing decisions are also
reviewed using an abuse of discretion standard.” State v. Jones, 167 Idaho 353, 358, 470 P.3d
1162, 1167 (2020) (quoting State v. Matthews, 164 Idaho 605, 607, 434 P.3d 209, 211 (2019)).
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.” State v. Bodenbach, 165 Idaho 577, 591, 448 P.3d
1005, 1019 (2019) (quoting Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194
(2018)).
IV. ANALYSIS
A. The district court did not abuse its discretion by preventing Ogden from presenting
his response to Officer Sontag’s statement about the bus tickets.
Ogden challenges the district court’s decision to exclude his response to Sontag about the
bus tickets on two grounds. First, Ogden alleges the district court erred in excluding his statement
after acknowledging it constituted an excited utterance. Second, Ogden argues the district court
separately erred by concluding the completeness doctrine did not apply to his statements. The State
argues that Ogden has not preserved this claim on appeal. From the State’s perspective, Ogden
expressly agreed to exclude his response to the video, and any error from its exclusion is barred
under the doctrine of invited error.
1. Invited error doctrine
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The State alleges that Ogden’s claim is barred under the doctrine of invited error. As the
State contends, Ogden explicitly conceded he was not trying to introduce his response to Sontag,
agreed to cut the video, and offered to mute his response. The State maintains that Ogden’s claim
to the contrary on appeal is unpreserved or barred under the doctrine of invited error. Ogden claims
his argument was preserved because he repeatedly requested to include his response to Sontag.
“The doctrine of invited error applies to estop a party from asserting an error when his or
her own conduct induces the commission of the error.” State v. Norton, 151 Idaho 176, 187, 254
P.3d 77, 88 (Ct. App. 2011) (citations omitted). It prevents a party who “caused or played an
important role in prompting a trial court” to make a particular decision from “later challenging that
decision on appeal.” State v. Blake, 133 Idaho 237, 240, 985 P.2d 117, 120 (1999). “One may not
complain of errors one has consented to or acquiesced in.” Norton, 151 Idaho at 187, 254 P.3d at
88 (citing State v. Caudill, 109 Idaho 222, 226, 706 P.2d 456, 460 (1985)). As a result, even if the
district court erred, the invited error doctrine bars an appellant from complaining of the error that
the appellant acquiesced to or invited. City of Middleton v. Coleman Homes, LLC, 163 Idaho 716,
727, 418 P.3d 1225, 1236 (2018).
On the first day of trial, outside the presence of the jury, the district court heard arguments
about a series of exhibits. The first exhibit was State’s Exhibit 1, which was body camera video
from Wirshing. Attorneys for both sides argued why portions of the State’s exhibit should or
should not be redacted. Ogden’s attorney argued, “I would even be happy with the officer’s
statement coming in and cutting it off before [Ogden] says, ‘What bus tickets[?]’ It’s not the
defendant’s statement we want in, it’s the officer’s statement. They [the State] are now alleging
bus tickets for the first time and that’s [the] only place they allege it in the video.” The State
responded that it “can make that happen,” explaining, “Yeah. If he's not going to get his client’s
statement in [then] he wants my officer’s.” Ogden’s attorney agreed with the decision, and
explained, “Yeah, that’s fine. And if we decide we want his response in, we can have him testify
and show that video.” (Emphasis added). In response, the district court explained, “Well, no. He
can testify. You can’t show the video.” Ogden’s attorney responded, “I see. Okay.”
On appeal, Ogden claims that, along with those initial arguments, he renewed his request
to the district court to play his response to the officer. In support, Ogden cites two portions of the
record. The first is a short exchange, in which the district court stated, “Stop. What in addition to
that part do you want to play? Your client’s reaction?” Ogden replied, “Well, it’s in there but it’s
10
part of the completeness doctrine, your Honor.” The second excerpt Ogden points to is a statement
from the district court in response to Ogden asking, “Judge, is it possible that I can edit the exhibit
so my client’s actual denials to the questions are muted so we can hear Officer Wirshing and
Officer Sontag–[.]” The district court replied, “[s]how me the video you want to show. [Video
published to the Court.] So that’s the exact same video you played yesterday up to the part where
the officer said it was in the box and then the rest of it was cut off.”
After hearing arguments from the State, the district court ultimately agreed to admit the
video as Ogden requested, and added:
THE COURT: I think that in fairness to what happened before where the State cut
that off where they were just sort of unattached statements of the police officer
about what they found, I think in order to put those into fair light, they ought to be
played in relation to the defendant’s immediate response to those alleged findings.
Furthermore, I think the defendant’s -- as I thought about it and have seen it again,
I think the defendant’s immediate responses are excited utterances.
(Emphasis added).
The district court sua sponte raised the prospect of admitting Ogden’s statements as an
excited utterance contrary to the State’s argument. Neither the State nor Ogden challenged the
district court’s (brief) conclusion that Ogden’s response on the video was admissible as an excited
utterance. See State v. Castrejon, 163 Idaho 19, 22, 407 P.3d 606, 609 (Ct. App. 2017) (explaining
that a party does not invite error by merely acquiescing to the end of a court’s colloquy when the
party’s acquiescence does not induce the error and the court sua sponte raised the issue). Indeed,
though Ogden’s focus during these arguments was on admitting the officer’s statement that
prompted Ogden’s response, the district court’s decision that Ogden could play his immediate
response coupled with Ogden’s arguments throughout the motion in limine hearing in which he
repeatedly argued that Ogden’s statements were admissible under the completion doctrine is
sufficient to preserve the argument on appeal. The district court later changed its ruling, and this
portion of State’s Exhibit 1 was never played for the jury. As a result, we hold that Ogden is not
barred under the doctrine of invited error from arguing that the district court erred in preventing
him from presenting his response to Sontag’s statement.
2. Excited utterance
Ogden next argues that because the district court found that Ogden’s response to Sontag
finding the bus tickets was an excited utterance, the court’s subsequent decision concluding that
the statement was inadmissible is erroneous.
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On the second day of trial, as we note above, after the district court admitted a portion of
the body camera video exchange between Sontag and Ogden, the district court ruled, “I think the
defendant’s—so I thought about it and have seen it again. I think the defendant’s immediate
responses are excited utterances.” Ogden never argued his response to the officers qualified as an
excited utterance. Indeed, the only time the words “excited utterance” appear in the transcript are
when the district court raised it sua sponte. Even so, later that day, the district court called a bench
conference and explained that it had changed its mind:
Based on what you told me before, I’m not going to let you use the second video,
the one that shows him with the -- where your client reacts to the finding of the bus
tickets because the more I think about it, the only reason that came in at all is
because you wanted it in, and therefore, my concern about Mr. Guy -- my concern
about the State putting in a hearsay statement of the officers in abstract is irrelevant.
You wanted that part in and I told you weren’t going to be able to use completeness
to get your client’s statement in by putting that part in yourself. So I don’t think it’s
fair to let you add onto it when I specifically said you couldn’t do [it] yesterday.
Does that make sense?
Ogden now claims on appeal that his statements qualified under an exception to the hearsay
rule because either he or the State could introduce the statement as evidence. Ogden argues the
district court incorrectly conducted its analysis about the admissibility of the statement under Idaho
Rule of Evidence 801(d)(2), which provides that a statement is not hearsay if the statement is
offered against a party-opponent. But Ogden maintains that just because he cannot present his own
statement as non-hearsay does not mean he cannot present his own statement as an exception to
the hearsay rule. Ogden contends that, as the district court initially found, because his statements
were made in response to a startling statement by Sontag, his statement qualified as an excited
utterance. The State maintains that Ogden’s claim of error is misplaced.
A statement that was not made while testifying in court that is offered to prove the truth of
the matter asserted is hearsay. I.R.E. 801(c). “Hearsay is not admissible except as provided by
these rules or other rules promulgated by the Supreme Court of Idaho.” I.R.E. 802 “The following
are not excluded by the rule against hearsay, regardless of whether the declarant is available as a
witness: . . . (2) Excited Utterance. A statement relating to a startling event or condition, made
while the declarant was under the stress of excitement that it caused.” I.R.E. 803(2).”
The excited utterance exception “has two requirements: ‘(a) There must be an occurrence
or event sufficiently startling to render inoperative the normal reflective thought processes of an
12
observer; and (b) the statement of the declarant must have been a spontaneous reaction to the
occurrence or event and not the result of reflective thought.’” State v. Parton, 154 Idaho 558, 564,
300 P.3d 1046, 1052 (2013) (quoting State v. Poe, 139 Idaho 885, 904, 88 P.3d 704, 723 (2004)).
Whether a statement is “self-serving” “is a factor to be weighed in determining whether [the
statement] was a product of reflective thought,” rather than a spontaneous reaction. State v. Burton,
115 Idaho 1154, 1156, 772 P.2d 1248, 1250 (Ct. App. 1989).
We conclude that under Idaho law, Ogden’s statement was not an excited utterance. This
Court has identified a series of factors that the trial court can consider when determining whether
a statement qualifies as an excited utterance. State v. Poe, 139 Idaho 885, 904, 88 P.3d 704, 723
(2004). Those factors include the lapse of time between the startling event and the statement, the
age and condition of the declarant, whether the statement was made in the declarant’s self-interest,
whether the statement was made in response to a question or volunteered, and the nature of the
condition or event. Id.While Ogden’s response was made without a significant lapse in time after the officer
found the tickets, Ogden made the statement in response to the officer stating that he found the bus
tickets. This was a statement of fact, not a startling event, and little about the officer’s statement
is sufficiently startling to provoke a spontaneous response without reflection. Given the nature of
the other items located inside the box, and the significance of finding Ogden’s name on the bus
tickets inside to connect Ogden as an owner to those items, denying that the bus tickets were in
the box alongside methamphetamine has a self-serving purpose.
The purpose of the excited utterance exception is not to exclude from the general rule
against hearsay a response to an unexpected or damaging comment; the rule excepts from hearsay
an event that is so startling as to render a person unable to reflect on the traditional thought process.
Under the second requirement, the exception requires a spontaneous and uncalculated reaction.
The statement Ogden made in response to Sontag finding his bus tickets was, “in the box? That’s
not in the box.” Ogden provides no argument to support the notion that this statement was a
spontaneous reaction. For these reasons, we affirm the district court’s decision excluding Ogden’s
response as hearsay with no exception.
3. Completeness doctrine
Ogden separately contends that the district court’s refusal to allow him to present his
response to Sontag’s statement was also improper under the completeness doctrine. The State
13
maintains that the video with Sontag stating he found the bus tickets was admitted at Ogden’s own
request and, thus, Ogden cannot now claim he is the adverse party in order to require that his own
response be introduced to complete a portion of the video that he wanted introduced.
Idaho Rule of Evidence 106 identifies the confines of the completeness doctrine:
If a party introduces all or part of a writing or recorded statement, an adverse party
may require the introduction, at that time, of any other part--or any other writing or
recorded statement--that in fairness ought to be considered at the same time.
I.R.E. 106; see also State v. Bingham, 124 Idaho 698, 699, 864 P.2d 144, 145 (1993) (noting
hearsay may be admissible under I.R.E. 106).
First, we note that Ogden concedes in his brief on appeal that he only requested the State
include Sontag’s statement—not Ogden’s response—under the completeness doctrine. Even so,
Ogden now claims that this issue is preserved for appeal because the district court’s ultimate
decision on the completeness doctrine was based, in part, on Ogden’s response. Id. (citing State v.
Jeske, 164 Idaho 862, 868, 436 P.3d 683, 689 (2019)). Consistent with how this Court has recently
clarified its preservation standards, “a party preserves an issue for appeal by properly presenting
the issue with argument and authority to the trial court below and noticing it for hearing or a party
preserves an issue for appeal if the trial court issues an adverse ruling. Both are not required."
State v. Miramontes, 170 Idaho at 920, 517 P.3d 849, 853–54 (2022) (emphasis added). Thus,
Ogden preserved this issue for appeal.
Even so, we conclude that the district court did not abuse its discretion in declining to admit
the statement under Rule 106. Under the common-law rule that underpins Idaho Rule of Evidence
106, the reason for the completion doctrine is that there is a “danger that an out-of-context
statement may create such prejudice that it is impossible to repair by a subsequent presentation of
additional material.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171 n.14 (1988). Thus, Rule
106 “requires the admission of those portions of the statement that are ‘necessary to qualify,
explain or place into context the portion already introduced.’” State v. Prasertphong, 210 Ariz.
496, 114 P.3d 828, 831 (Ariz. 2005) (quoting United States v. Branch, 91 F.3d 699, 728 (5th Cir.
1996)); see also Bingham, 124 Idaho at 699-700, 864 P.2d at 145-46 (noting evidence may be
admissible under I.R.E. 106 to provide context). But here, as the district court found, Ogden’s
denial that officers found the bus tickets in the box does not provide context to the statements
already in evidence.
14
Because this was the only portion in the video that mentioned the bus tickets, the district
court explained “I don’t see how his denial of the bus tickets is relevant to any other part of the
tape for completeness because the bus tickets are not in any other part of the tape.” Ogden at first
agreed, noting that the only portion of the video he wanted in was the part when Sontag found the
bus tickets, contending that this was necessary to complete the portion of the video where Sontag
took an inventory of the box but did not mention bus tickets. The district court found it would
“probably let the officer’s statements in” but not Ogden’s denials. Ogden responded, “Understood.
I would even be happy with the officer’s statement coming in and cutting it off before [Ogden]
says, ‘What bus tickets.’ It’s not the defendant’s statement we want in, it’s the officer’s statement.”
But then after Sontag testified, Ogden renewed his request to play a portion of the video:
[P]rior to [Officer Sontag stating he found the bus ticket in the box], we hear Officer
Wirshing ask [Ogden] was this yours and he makes denials. The point is it was at
that point that Officer Sontag came over, it was because of those denials that he
suddenly comes up with the bus tickets in the box. The context is important.
Because if he is just announcing, “hey, I found a bus ticket in a box,” that’s different
than standing there listening, hearing the defendant say that’s not my stuff and then
saying, well, I found a bus ticket.
This time, Ogden argued he wanted to introduce his initial denial that he did not know what was
inside the box because that statement was what prompted Sontag to state that he found the bus
tickets. Ogden was the proponent of admitting Sontag’s statement about the bus tickets, and
Ogden’s response to Sontag denying that bus tickets were in the box was unnecessary to complete
Sontag’s statement nor would including it have provided any context. The district court’s ruling
remained the same; Ogden’s statement was not admitted.
“When reviewing the trial court’s evidentiary rulings, this Court applies an abuse of
discretion standard.” State v. Chambers, 166 Idaho 837, 840, 465 P.3d 1076, 1079 (2020) (quoting
State v. Jeske, 164 Idaho 862, 867, 436 P.3d 683, 688 (2019)). Under that standard, this Court
examines “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.” State v. Bodenbach, 165 Idaho 577, 591, 448 P.3d 1005, 1019 (2019) (quoting Lunneborg
v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)).
The district court did not abuse its discretion in concluding that the statement about bus
tickets not being in the box did not satisfy the requirements under Rule 106. The district court
15
properly perceived the evidentiary issue as one of discretion, acted within the outer bounds of its
discretion, applied the proper legal standards, and reached its decision by an exercise of reason.
B. The district court erred by allowing the State to present evidence that the district
court determined was not relevant, but this error was harmless.
After officers searched Ogden’s car, Wirshing questioned Ogden about what was found
inside. Officers uncovered a gun, tactical vest, and locked box. Ogden told the officers he
purchased the gun from the same people he purchased the car from and explained he had recently
bought the vest at a pawn shop. Wirshing stated, “it makes me nervous” to find something like
that, referring to the tactical vest.
Ogden moved to exclude the officer’s statement, arguing it was not relevant. The district
court at first agreed, explaining, “I don’t think the fact that the vest makes the officer nervous is
relevant.” However, the State, failed to redact the video as ordered. Ogden made a second objection
to the statement being included in the video. The district court then changed course and without
directly commenting on relevance under Rule 401, stated:
Well, I originally asked them to take it out because I thought the relevance was
minimal there. At this point I’m going to go weigh everything under 403, include
relevance, prejudice, which I don’t think there is really any. I don’t think that’s a
harmful statement. The officer said it kind of jokingly. And the concern I have is
the waste of time and the trial and everything else, I don’t think it causes any harm
to have it in, so I’m going to go forward with it.
We take this statement from the district court to mean that it ultimately found the statement about
the officer’s nervousness minimally relevant and allowed the State to present the video with the
statement included because it was not unfairly prejudicial under Rule 403. The district court
reasoned it did not want to delay the trial further while the prosecutor redacted the exhibit.
“Relevant evidence is admissible unless these rules, or other rules applicable in the courts
of this state, provide otherwise.” I.R.E. 402. Evidence is relevant if it is probative, having “any
tendency to make a fact more or less probable” and material, being “of consequence in determining
the action.” I.R.E. 401. “Whether a fact is ‘of consequence’ or material is determined by its
relationship to the legal theories presented by the parties.” State v. Ochoa, 169 Idaho 903, 913,
505 P.3d 689, 699 (2022) (quoting State v. Garcia, 166 Idaho 661, 670, 462 P.3d 1125, 1134
(2020)). Further, whether an issue is relevant requires understanding those theories “concerning
the crime charged,” the elements of that crime, and the ultimate issue that the jury is asked to
determine. Garcia, 166 Idaho at 671 n.3, 462 P.3d at 1135 n.3. “The question of whether evidence
16
is relevant is reviewed de novo, while the decision to admit relevant evidence is reviewed for an
abuse of discretion.” State v. Hall, 163 Idaho 744, 781, 419 P.3d 1042, 1079 (2018) (quoting State
v. Shutz, 143 Idaho 200, 202, 141 P.3d 1069, 1071 (2006)).
On appeal, Ogden argues the district court was correct to initially exclude the statement
about the officer’s nervousness as irrelevant, but the court erred when it changed its mind and
allowed the statement in. The State counters that the district court did not abuse its discretion in
admitting the statement because the court conducted a Rule 403 balancing test on the record and
found that the probative value of the comment was “relatively minimal” but determined there was
no prejudice because it was a “harmless statement.”
This Court has explained that “minimally relevant” evidence is admissible as background
information. State v. Garcia, 166 Idaho 661, 672, 462 P.3d 1125, 1136 (2020). That Ogden
acknowledged the tactical vest was his is relevant to show that other items found in the vehicle
(including the drugs and paraphernalia) were likely his as well. I.R.E. 401. But the extraneous
statement the officer made about being nervous had nothing to do with Ogden’s ownership of the
vest itself. Indeed, while the threshold for admitting relevant evidence is low, the evidence must
have some relevancy. I.R.E. 401. “The Idaho Trial Handbook observes that Idaho Rule of Evidence
401 ‘requires only minimal relevance, treating evidence as relevant if it has any tendency to make
facts more or less probable.’” Garcia, 166 Idaho at 671 n.3, 462 P.3d at 1135 n.3 (quoting D. Craig
Lewis, IDAHO TRIAL HANDBOOK § 13:1 (2d ed. 2005)). The district court acted outside the outer
bounds of its discretion in glossing over this evidentiary principle in admitting the officer’s
statement about being nervous. The officer’s statement had no bearing on any fact of consequence,
and, thus, it was an abuse of discretion to admit it under Rule 401. We are also troubled that the
prosecutor appears to have ignored the district court’s instruction to redact the video 4. The
prosecutor here disregarded the district court’s explicit ruling to redact Wirshing’s statement about
being nervous from the video and left it to the district court to reweigh the evidence and attempt
4
The transcript shows the frustration of the district court in trying to deal with objections to, and redactions of, the
video evidence during trial. The court’s frustration was well-placed. The district court also showed concern for wasting
jurors’ time while waiting for the parties to properly prepare the evidence they wished to present in trial. The
convoluted back-and-forth is the product of the parties failing to have their video evidence ready to present to the jury
– particularly when the district court had ordered that portions of the exhibit were to be redacted – an order that the
State simply ignored. We urge courts and counsel to take affirmative steps to ensure that inadmissible portions of
video or audio evidence are properly edited and decided upon well before trial to avoid situations like this case.
17
to salvage things as the jury unnecessarily waited. This is behavior we continue to see too often,
and which led to the erroneous decision about the statement’s relevance.
With that said, as the State concedes, while the district court abused its discretion in
admitting the officer’s statement about being nervous, we hold that this error was harmless.
“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 (citations
omitted) (quoting Yates v. Evatt, 500 U.S. 391, 403-04 (1991)). “The probative force of evidence
untainted by error against a defendant must be examined and weighed as against the probative
force of the error itself.” Id. at 675, 462 P.3d at 1139. “When the effect of the error is minimal
compared to the probative force of the record establishing guilt ‘beyond a reasonable doubt’
without the error, it can be said that the error did not contribute to the verdict rendered and is
therefore harmless.” Id. at 674, 462 P.3d at 1138.
The State suggests that the prejudicial effect from Wirshing’s comment was minimal in the
context of the totality of the evidence adduced at trial. We agree. The context with which the
statement was admitted accompanied Wirshing’s reassurance that it was fine for Ogden to possess
the tactical vest, and that it was legal for him to do so. In weighing the probative force of the error
against the probative force of the evidence against Ogden, we conclude that the error did not
contribute to the jury’s verdict.
The video showed Wirshing finding a methamphetamine pipe in Ogden’s pocket. Ogden
admitted that he picked up the pipe, hoping he would find something inside it. The jurors were
also shown video of officers finding the locked box inside Ogden’s vehicle and uncovering
methamphetamine, needle caps, cash, ammunition, and the bus tickets. The officers corroborated
this evidence and testified that they found the pipe in Ogden’s pocket and, later, a locked box
inside his vehicle that contained methamphetamine, needle caps, cash, ammunition, and the bus
tickets. Ogden then testified that he found the methamphetamine pipe, put it in his pocket, and
admitted to being a methamphetamine user. He testified to owning the items found inside the
vehicle, including the tactical vest and a gun. While Ogden denied he owned the locked box inside
the car, Ogden knew the box was locked with a combination and not a key, and admitted he owned
the bus tickets bearing his name that were found inside the box. As a result, the evidence against
Ogden, untainted by the error, established beyond a reasonable doubt that Ogden was guilty of
possession of methamphetamine and possession of paraphernalia.
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Weighing the evidence against the probative force of the error itself, Ogden claims that
Wirshing’s comment could have made jurors more likely to view Ogden as someone involved in
the drug trade and abandon their reasonable doubts about his possession of methamphetamine and
the items in the locked box. See generally State v. Pierce, 137 Idaho 296, 299 (Ct. App. 2002)
(pointing out the “recognized propensity” that people involved in dealing drugs will carry
firearms)). Ogden’s argument is unpersuasive. Ogden testified to owning the tactical vest. The jury
was also presented with significant evidence supporting the presence of methamphetamine in the
vehicle when Ogden was arrested, along with body-camera video of Ogden admitting he was an
addict and had hoped to find drug residue in the pipe after Wirshing found the pipe inside Ogden’s
pocket.
The probative force of Wirshing’s statement was “unimportant in relation to everything
else the jury considered on the issue in question.” Garcia, 166 Idaho at 674, 462 P.3d at 1138.
Thus, we hold that because the statement had no tendency to make a fact of consequence more or
less probable, the statement was irrelevant, but the district court’s decision to admit it was
harmless.
C. A single error does not require Ogden’s conviction to be vacated.
Ogden argues that the errors he has alleged combined to affect the outcome of his entire
case. As a result, Ogden contends that even if this Court holds the individual errors were harmless,
his judgment should still be vacated, and his case should be remanded for a new trial because the
accumulation of errors deprived him of the right to a fair trial. The State insists the cumulative
error doctrine is inapplicable to Ogden’s case because Ogden has not shown multiple errors.
“Under the doctrine of cumulative error, a series of errors, harmless in and of themselves,
may in the aggregate show the absence of a fair trial.” State v. Perry, 150 Idaho 209, 230, 245 P.3d
961, 982 (2010). Even so, “a necessary predicate to the application of the [cumulative error]
doctrine is a finding of more than one error.” Id.Ogden points to two errors on appeal related to the trial: (1) the district court erred by
preventing Ogden from presenting his response to Sontag’s statement about the bus tickets, and
(2) the district court erred by allowing the State to present evidence the district court determined
was not relevant. But as we have discussed, Ogden has only established that the district court erred
in admitting irrelevant evidence, but he has not proven more than one error or shown that the errors
“were of such magnitude that [the defendant] was denied a fair trial.” State v. Moore, 131 Idaho
19814, 823, 965 P.2d 174, 183 (1998). Because the district court did not err in excluding Ogden’s
response to Sontag, and because the court’s decision to admit irrelevant evidence was harmless,
we hold that the cumulative error doctrine does not apply.
D. The district court abused its discretion in failing to redline the portions of the PSI it
had agreed to correct, but did not abuse its discretion in declining to redline portions
describing conduct Ogden was acquitted of.
At Ogden’s sentencing hearing, he objected to the inclusion of certain materials in the PSI.
Following arguments from Ogden, the district court agreed to continue the hearing to give both
sides a chance to brief the issue. Ogden objected to the PSI’s inclusion of police reports from a
pending case involving sexual abuse of a minor and the victim’s medical records. The State
claimed the materials were appropriate to consider at sentencing.
The district court ultimately determined it would strike the medical records from the PSI.
But the district court did not agree to strike the police reports. The court explained that police
reports stating that Ogden gave his victim methamphetamine during a sexual incident were reliable
because “the records submitted fairly well substantiate those crimes, they are reliable records by
law enforcement officers.” The court also explained that “the case law is clear the [c]ourt can
consider other charges, even if unproved[.]” Following that ruling, the district court asked if there
were any other corrections or proposed changes to the PSI. Ogden noted seven that he wanted
redlined. On appeal, Ogden limits his arguments to the five the district court considered.
A district court’s denial of a motion to strike or delete portions of a PSI is reviewed on
appeal for an abuse of discretion. State v. Molen, 148 Idaho 950, 961, 231 P.3d 1047, 1058 (Ct.
App. 2010). I.C.R. 32(e)(1). Under that standard, this Court examines “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.” Bodenbach, 165 Idaho at
591, 448 P.3d at 1019 (quoting Lunneborg, 163 Idaho at 863, 421 P.3d at 194).
Idaho Criminal Rule 32 governs presentence investigation reports, and requires the report
contain, among other things
the description of the situation surrounding the criminal activity with which the
defendant has been charged, including the defendant’s version of the criminal act
and the defendant’s explanation for the act, the arresting officer’s version or report
of the offense, where available, and the victim’s version, where relevant to the
sentencing decision.
20
I.C.R. 32(b).
Ogden makes two distinct sets of arguments pertaining to the PSI. First, he argues that the
district court affirmatively agreed to strike five statements but ultimately failed to do so. Second,
he claims the district court ordered the victim’s medical records from his other case to be struck
from the PSI but that two copies of those medical records still appeared in the records sent to the
appellate court.
1. The five proposed corrections.
Ogden maintains that despite the district court “affirmatively accepting” his corrections,
the court refused to redline the PSI. Ogden’s assertion misconstrues the district court’s decision.
Indeed, a review of the record makes clear that the court only agreed to consider Ogden’s request
to strike the statements he claimed were incorrect. The district court responded to each of the
proposed corrections to the PSI Ogden raised by stating that the court would take the correction
“into consideration,” but the court did not inform Ogden it would “affirmatively accept” his
proposed corrections. We will examine each statement in turn.
First, Ogden argued the PSI incorrectly stated he received a probation violation for driving
under the influence and possession of paraphernalia while on probation. Ogden claimed the PSI
incorrectly stated he was charged with possession of paraphernalia. The district court did not
accept this change but responded that it “appreciate[d]” that Ogden thought the statement was
inaccurate, and the court would “consider that personally, but I’m not in a position to strike it
because I’m not in a position to decide that’s in fact what he said or didn’t say [when speaking to
the PSI investigator].” The PSI does not state Ogden was charged with possession of paraphernalia;
it states Ogden reported he was charged with possession of paraphernalia.
Second, Ogden challenged a statement in the PSI concerning where he went to high school,
requesting a correction on the PSI from Boise High School to Capital High School. The district
court responded, “So, again, it’s just a report of what he said. I appreciate that that may be
inaccurate, I’ll take that into consideration.”
Third, Ogden also challenged the statement, “[t]he defendant advised he received a
probation violation in 2009 for blowing into an interlock while intoxicated. He advised ‘I asked
my wife for a divorce and relapsed on alcohol and meth,’ and noted he relapsed again in 2010 due
to ‘gang stalking.’” Ogden alleged the probation violation was in 2010, not 2009. The district court
21
responded, “So 2010 should be the more current. . . Again, it’s a report but I do take that into
consideration.”
Ogden challenged two other statements related to drug use. The first was a statement that
Ogden “last reported use [of methamphetamine] on September 7, 2018,” but Ogden then told the
GAIN evaluator he “last used methamphetamine on July 30, 2019.” The district court responded:
“The problem is they’re both based on self-report, based on what the defendant told the PSI
investigator on one hand and told the GAIN reporter on another. Sometimes defendants tell them
two different things. I can’t change what they report that they were told. I don’t think it’s
particularly relevant but I will take it into consideration.”
Finally, Ogden challenged the PSI’s statement: “The defendant denied any other drug use;
however, the GAIN evaluator noted ‘Though no criteria were met for any further substance use
disorder diagnoses, he admitted to using the following: cannabis; opioids; sedatives, hypnotics,
and anxiolytics.’” The district court responded: “They’re just quoting the GAIN evaluation, and I
can’t change the GAIN evaluation. I appreciate the note. Is there anything else that is more than
just argument, like you’ve indicated[?]”
None of Ogden’s factual disagreements with the PSI were affirmatively accepted as true
by the district court. And though Ogden notes on appeal, and we agree, that it is important for
incorrect information to be removed from a PSI so that information is not improperly considered
in a future proceeding, the doctrine of de minimis non curat lex instructs that “the law does not
concern itself with trifles.” De minimis non curat lex, BLACK’S LAW DICTIONARY (11th ed. 2019).
Whether Ogden graduated from Boise High or Capital, whether he self-reported drug use in
September or July, or the contradictions Ogden made in his own statements are exactly that—
trifles. The district court did not abuse its discretion in handling each one as it did.
Ogden points to a series of cases to support his argument that this Court has repeatedly
found in favor of redlining a PSI to ensure the information is accurate. See generally State v.
Mauro, 121 Idaho 178, 183, 824 P.2d 109, 114 (1991) (excluding a report in the PSI from the U.S.
Attorney’s Office that did not explain why the PSI reporter found the report reliable); State v.
Golden, 167 Idaho 509, 512, 473 P.3d 377, 380 (Ct. App. 2020) (remanding the case to the district
court because the PSI did not reflect the changes to the PSI the district court agreed to make); State
v. Molen, 148 Idaho 950, 961, 231 P.3d 1047, 1058 (Ct. App. 2010) (concluding that the district
court abused its discretion in declining to redline a PSI when the report was not clearly attributed
22
to the defendant); State v. Rodriguez, 132 Idaho 261, 264, 971 P.2d 327, 330 (Ct. App. 1998)
(hearsay did not make a PSI unreliable when the defendant had the chance to rebut the testimony
from the hearsay declarants at trial).
Ogden is correct so far as these cases are concerned, but they do not help him here. The
potential corrections the district court considered related to information Ogden disputed. “A court,
however, is not required to strike or disregard information in the PSI simply because the defendant
disputes the information.” Golden, 167 Idaho at 511, 473 P.3d at 379. We hold that the district
court acted within the bounds of its discretion in denying Ogden’s requested changes to the PSI;
each were statements Ogden made to the PSI investigator, and none of the alleged errors conflict
with Idaho Criminal Rule 32’s directives. It was within the district court’s discretion to deny
Ogden’s request to redline the PSI. Ogden does not suggest the district court’s decision was outside
the outer bounds of its authority or the applicable legal standards. Accordingly, we affirm the
district court’s decision.
2. The alleged victim’s medical records
While the district court did not agree to correct or red line the five statements Ogden
requested, the district court did affirmatively agree to strike the medical records for Ogden’s
alleged victim in an unrelated case. Ogden maintains those records remained in the PSI sent to the
Idaho Department of Corrections. The State agrees this case should be subject to a limited remand
for the district court to properly strike the medical records from the PSI. We also agree. See Golden,
167 Idaho at 512–13, 473 P.3d at 380–81 (“Because the PSI in the appellate record does not reflect
the changes the district court suggested it was making…we remand to the district court to ensure
that the court’s additions or corrections are reflected on Golden’s PSI and that the corrected PSI is
the one distributed per I.C.R. 32(h).”).
We recently clarified in State v. Greer that a district court abuses its discretion when it fails
to redline a PSI that it agreed was inaccurate. When the PSI entered into the appellate record does
not include the corrections the district court agreed to make, this Court cannot determine if those
changes occurred. A defendant should not be required to provide a document that may not exist;
if the district court did not correct the PSI, the defendant cannot supplement the record with a
corrected PSI. The State likewise agrees a limited remand would be appropriate. Based upon that
agreement we conclude that the district court abused its discretion in failing to redline Ogden’s
corrections to the PSI that the court agreed should be redlined. As we held in Greer, a limited
23
remand is appropriate in these circumstances. Greer, __ Idaho __, 524 P.3d 386, 394 (2023). Thus,
we conclude that a limited remand is warranted here to ensure that the district court’s order striking
the victim’s medical records from the PSI took place so that those documents no longer appear in
the post-sentencing version of the PSI as contemplated by Greer, Golden and Idaho Criminal Rule
32(e). If those records remain in the PSI, the district court must ensure those records are stricken,
and that the revised PSI is provided to IDOC.
V. CONCLUSION
For these reasons, we affirm the district court’s decision preventing Ogden from presenting
his response to Sontag at trial, and while we conclude that the court erred in allowing the State to
present irrelevant testimony from Wirshing, that error was harmless. We remand this case to
district court to ensure that the victim’s medical records are stricken from the PSI. The remaining
corrections Ogden challenged pertaining to the PSI were not accepted by the district court, and the
court acted within its discretion to deny Ogden’s redline requests.
JUSTICES BRODY, STEGNER, MOELLER, and ZAHN CONCUR.
24