Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John P. Luster, District Judge.
The opinion of the court was delivered by: Gratton, Chief Judge
2012 Unpublished Opinion No. 779
THIS IS AN UNPUBLISHED
OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Judgment of conviction for malicious harassment and conspiracy to commit malicious harassment, affirmed.
William M. Tankovich, Jr. appeals from the judgment of conviction entered upon the jury verdicts finding him guilty of malicious harassment and conspiracy to commit malicious harassment.
FACTUAL AND PROCEDURAL BACKGROUND
Tankovich, as well as his two brothers, was charged by indictment with one count of malicious harassment and one count of conspiracy to commit malicious harassment. The indictment alleged three overt acts. First, Ira Tankovich (Ira) made contact with Kenneth Requena (Requena), who is Puerto Rican, because of his race, color, and/or national origin and made disparaging racial remarks to Requena. Second, Ira returned to Requena's home with a firearm to cause physical injury to Requena and/or threatened physical injury to Requena. Lastly, Tankovich and Frank Tankovich (Frank) also returned to Requena's home and maliciously made disparaging racial remarks to Requena--with the specific intent to intimidate or harass--because of his race, color, ancestry, and/or national origin. The State moved for a joinder of Tankovich's case with those of Frank and Ira. The district court ultimately granted the joinder and the three men were tried together.
Following a mistrial and a hung jury, the State sought to introduce evidence at the subsequent trial regarding Tankovich's tattoos of SS lightning bolts and a three-leaf clover.*fn1 The State also requested to be allowed to present the testimony of expert Tim Higgins to explain the significance of Tankovich's tattoos. The district court conducted a hearing outside the presence of the jury to establish the proper foundation for Higgins' testimony. During that hearing, Higgins testified that he "provide[s] administrative oversight for three programs statewide with the Department of Correction both in probation and parole and in the prison system, one being the investigations program, the second being the criminal intelligence program, and the third being the security threat group management program." Higgins explained that security threat groups "could mean criminal gang members, it could mean extremist groups, militia groups, white supremacist organizations, [and] various other groups. . . ." Higgins also explained that
Tankovich's tattoos were Aryan neo-Nazi-type symbols usually associated with white supremacists or gang members.
Following the hearing on Higgins' testimony, Tankovich expressed his concerns:
[M]y biggest concern is that letting this witness testify, all it's going to do is attempt to inflame the jury and say that these people are part of a gang. He has testified that his only expertise is in identifying if people are part of a gang or a security threat or whatever nonsense they're calling it these days, and he has given you no information that he is at all experienced in just testifying about relevant sorts of symbols. He has no doctorate, no degree in history. When discussing these symbols, he says that he hasn't studied the other uses of them.
And more importantly, your Honor, it seems clear to me that what the State's hoping to do is have this witness testify and say these people are part of a gang. That's the only ...