As Amended July 23, 2013.
Review Denied Sept. 17, 2013.
[Copyrighted Material Omitted]
Stephen D. Thompson, Ketchum, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent. Jessica M. Lorello argued.
Frank James Tankovich appeals from his convictions for malicious harassment and conspiracy to commit malicious harassment. He asserts that the court erred by denying his motion to sever his trial from that of his co-defendant, that the court erred in admitting evidence, and that the evidence was insufficient to support the guilty verdict.
On the afternoon of August 16, 2009, Frank Tankovich and his brothers, William
and Ira Tankovich (hereinafter referred to as Tankovich, William, and Ira, respectively) drove past the home of Kenneth Requena, a man of Puerto Rican descent, and his wife, Kimberly Requena (hereinafter referred to as Kenneth and Kimberly, respectively). The Requenas were standing in their garage at the time. As the Tankoviches passed, the Requenas noticed a swastika drawn in the dirt on the side of the Tankoviches' truck  and also noticed that the occupants of the truck were staring at them. The Requenas heard the tires of the truck skid or squeal to a stop and saw the truck reverse and stop in front of their driveway. Tankovich, who was the driver, yelled at Kenneth to come over to the truck, and Tankovich, William, and Ira all exited the truck and began to approach the Requenas. At Kenneth's request, Kimberly retrieved a gun from inside the Requenas' home, handed it to Kenneth, and called 911 while Kenneth cocked the gun and stood in the garage. The Tankoviches yelled at Kenneth, telling him he had " f- -ked up," that they were going to " f- -k [him] up," and that they would come back later. They then returned to the truck and drove away.
The police arrived shortly after the Tankoviches left, took statements from the Requenas, and departed. Approximately twenty to thirty minutes later, Tankovich and William returned to the Requenas' house on foot with William's pit bull, and Tankovich stated, " You f- -ked with the wrong people. I am going to f— k you up." Kenneth again asked his wife to retrieve his gun and to call 911. At about the same time, Ira approached on foot from another direction carrying a gun. The police, who had remained in the area following the previous incident, quickly arrived, at which point Ira threw the gun away and began to walk away but was stopped by the police and arrested. As Tankovich and William spoke with the police, they loudly and repeatedly referred to Kenneth as a " f- -kin' beaner" and " f- -kin' terrorist," and told the police that " they were going to take care of things themselves" and that they were " gonna get that f- -kin' beaner" while looking or pointing at the Requenas. Tankovich and William initially refused to leave, apparently because they wanted the police to arrest Kenneth for his display of a firearm, but they eventually left and no additional arrests were made at that time.
Tankovich was subsequently charged with malicious harassment, Idaho Code § 18-7902, and conspiracy to commit malicious harassment, I.C. §§ 18-7902, 18-1701, and his case was joined for trial with the cases against William and Ira. At the initial trial, the district court declared a mistrial after inadmissible evidence was presented to the jury. At a second trial, Ira was convicted of conspiracy to disturb the peace, but the jury deadlocked on the charges against Tankovich and William, and the court again declared a mistrial. The State brought ...