Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.
The opinion of the court was delivered by: Gratton, Chief Judge
Stephen W. Kenyon, Clerk
THE COURT'S PRIOR
DATED JULY 11, 2012 IS
HEREBY AMENDED FOR
THE PURPOSE OF
Judgment of conviction and unified sentence of forty years with a minimum period of confinement of fifteen years, for aggravated battery, affirmed.
Vance Everett Thumm appeals from his conviction for aggravated battery with a persistent violator enhancement.
I. FACTUAL AND PROCEDURAL BACKGROUND
Thumm, Deven Ohls, and several other people attended an early morning party in a motel room that Thumm had rented. At some point during the party Thumm attacked Ohls, striking him with a closed fist several times in the head. Another person, Frankie Hughes, kicked Ohls and stabbed him in the buttock. The attack continued for some time and, by the time it was over, Ohls had suffered significant bleeding, a concussion, two black eyes, a complex lip laceration, and a nasal fracture, in addition to the stab wound.
The State charged Thumm by information with aggravated battery and a persistent violator sentencing enhancement. Three others, including Paris Davis, Thumm's girlfriend, were also charged in connection with the attack on Ohls. Prior to trial, the State filed multiple separate notices of intent to introduce evidence at trial pursuant to Idaho Rule of Evidence 404(b). In its first notice, the State intended to offer evidence that Mr. Thumm was a member of the Severely Violent Criminal (SVC) gang and the gang's purported modus operandi in attacking others as impeachment evidence in the event Thumm offered evidence of a peaceful nature. The notice also sought to offer testimony of a prior attack and beating alleged to have been committed by Thumm and other SVC gang members. In addition, the State filed a motion for pretrial ruling regarding the admissibility of evidence, asking the district court to permit it to introduce evidence that Davis and Thumm "are either members or close associates of the Severely Violent Criminal prison/street gang and the tenets of that gang are self-protection, insubordination to authority, violence, and dishonesty."
In regard to the I.R.E. 404(b) evidence of the prior altercation involving Thumm, the district court concluded that this "evidence would be more prejudicial than probative if issues with regard to self-defense or mistake or accident or another of that nature were not raised in the case and the Court would not allow it to be used." Addressing the State's motion for pretrial ruling on the gang connections of Thumm and Davis, the district court ruled that "this is admissible evidence for the purposes of impeachment should any members of the gang choose to testify and provide information related to alibi or other factors since it goes directly to the credibility of the witnesses." The district court further stated that the "name of the gang involved here will not be used, but the State may make reference to the fact if the testimony is given that they are a member of a gang and can impeach on that basis if they meet the criteria set forth in the Abel case."*fn1
After a four-day consolidated trial in which Thumm and Davis were tried for their respective charges, the jury found Thumm guilty of aggravated battery and of being a persistent violator. Thumm was sentenced to a unified term of forty years, with fifteen years determinate. Thumm timely appealed from the district court's judgment of conviction. He also filed a motion for reconsideration of sentence, which was denied by the district court.
Thumm first contends that the district court committed reversible error by denying his motion for mistrial after a State's witness, Frankie Hughes, purportedly referenced Thumm's alleged gang affiliation. The State contends that the district court never made a ruling regarding the State's use of gang-affiliation evidence in its case-in-chief and, therefore, no prosecutorial error occurred. The State also argues, in the alternative, that none of the witnesses' statements revealed any gang affiliation.
In criminal cases, motions for mistrial are governed by Idaho Criminal Rule 29.1. A "mistrial may be declared upon motion of the defendant, when there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the defendant and deprives the defendant of a fair trial." I.C.R. 29.1(a). Our standard for reviewing a district court's denial of a motion for mistrial is well established:
The question on appeal is not whether the trial judge reasonably exercised his discretion in light of circumstances existing when the mistrial motion was made. Rather, the question must be whether the event which precipitated the motion for mistrial represented reversible error when viewed in the context of the full record. Thus, where a motion for mistrial has been denied in a criminal case, the "abuse of discretion" standard is a misnomer. The standard, more accurately stated, is one of reversible error. Our focus is upon the continuing impact on the trial of the incident that triggered the mistrial motion. The trial judge's refusal to declare a mistrial will be disturbed only if that incident, viewed retrospectively, constituted reversible error.
State v. Urquhart, 105 Idaho 92, 95, 665 P.2d 1102, 1105 (Ct. App. 1983). This error will be deemed harmless if the appellate court is able to declare, beyond a reasonable doubt, that there was no reasonable possibility that the event complained of contributed to the conviction. State v. Morgan, 144 Idaho 861, 863-64, 172 P.3d 1136, 1138-39 (Ct. App. 2007).
Prior to trial, the district court ruled that evidence of Thumm's gang affiliation was "admissible evidence for the purposes of impeachment should any members of the gang choose to testify and provide information related to alibi or other factors since it does go directly to the credibility of the witnesses." The district court further ruled that the "name of the gang involved here will not be used, but the State may make reference to the fact if the testimony is given that they are a member of a gang and can impeach on that basis if they meet the criteria set forth in the Abel case."
At trial, during the State's direct examination of Hughes, the following exchange took place:
State: Did his [Thumm's] demeanor change at some point?
State: How did it change?
Hughes: At some point when I was just sitting over by the sink, I was just sitting there and that's when, you know, I heard bits and pieces of their conversation. And, you know, I heard Deven saying something about knowing someone from one of [Thumm]'s friends, you know, that he hangs out with and --
State: Then what happened?
Hughes: [Thumm] said, oh, yeah, like, he said, yeah, that's my homie.
She's from my hood. And then waives his hand across his neck and shows his neck.*fn2
Immediately after Hughes' statement, defense counsel for Davis asked to be heard outside the presence of the jury. The State later described what occurred during the unrecorded side bar:
Your Honor, the State's recollection of that was the State had asked a question. [Hughes] had responded to that question. There was an objection. We approached. During that side bar, the State's recollection was that both defense counsel were ...