2013 Unpublished Opinion No. 579
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.
Judgment of conviction and sentence for carrying a concealed weapon without a license, vacated and remanded for new trial; judgment of conviction and sentences for felony domestic violence in the presence of a child and malicious injury to property, affirmed.
Sara B. Thomas, State Appellate Public Defender; Diane M. Walker, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
Norman Ortiz-Perez appeals from his judgment of conviction entered upon the jury verdicts finding him guilty of felony domestic violence in the presence of a child, Idaho Code §§ 18-903(a), 18-918(2), 18-918(4), misdemeanor malicious injury to property, I.C. § 18-7001(2), and misdemeanor carrying a concealed weapon without a license, I.C. § 18-3302(7).
FACTUAL AND PROCEDURAL BACKGROUND
Ortiz-Perez lived with his girlfriend, Megan. The couple got into an argument regarding accusations of each other "cheating" and regarding Ortiz-Perez's drug use. Megan left and went with friends to a local bar. Shortly thereafter, Ortiz-Perez entered the bar and allegedly slapped her. Megan left and went to her mother's apartment to stay the night. The next day, Ortiz-Perez went to the mother's apartment and allegedly grabbed Megan by the arms, threw her on the ground, kicked her multiple times in her face and head, and then left the apartment. Megan's two daughters were present during this incident.
Eventually, Megan called the police and reported the incident. As police officers were driving to Ortiz-Perez's residence, they spotted him on the road driving his vehicle and initiated a traffic stop. After confronting Ortiz-Perez, the officers asked him to lift his shirt. There they found a knife attached to Ortiz-Perez's belt loop and they confiscated it after determining that he did not have a concealed weapon license.
Later, Megan returned to her residence and discovered that the tires of her vehicle were slashed and that several items inside the vehicle were destroyed. Inside the apartment, she discovered additional damage to her personal property. She also discovered that some of her items were missing.
Ortiz-Perez was arrested and charged with felony domestic violence in the presence of a child, malicious injury to property, carrying a concealed weapon without a license, and unlawful entry. The jury convicted him on all charges with the exception of unlawful entry. The district court imposed a unified term of twenty years with five years determinate for the felony domestic violence conviction and concurrent sentences of one year for malicious injury to property and six months for carrying a concealed weapon without a license. Ortiz-Perez timely appeals.
Ortiz-Perez claims that the district court erred by: (1) admitting his arrest photo into evidence; (2) allowing testimony of his alleged drug use; (3) denying his motion for a judgment of acquittal regarding the concealed weapon charge; and (4) allowing hearsay evidence regarding the concealed weapon charge. Ortiz-Perez also claims that he is entitled to relief based on cumulative error.
A. Arrest Photo
Ortiz-Perez claims that his arrest photo, admitted into evidence, was irrelevant to any disputed issue at trial. We review questions of relevancy de novo. State v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993). "[T]he Rules of Evidence generally govern the admission of all evidence in the courts of this State." State v. Meister, 148 Idaho 236, 240, 220 P.3d 1055, 1059 (2009). "All relevant evidence is admissible except as otherwise provided by these rules or by other rules applicable in the courts of this state." Idaho Rule of Evidence 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." I.R.E. 401. A district court's decision that evidence is relevant is reviewed for abuse of discretion. State v. Moore, 131 Idaho 814, 819, 965 P.2d 174, 179 (1998); State v. Hoak, 147 Idaho 919, 921, 216 P.3d 1291, 1293 (Ct. App. 2009). When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; ...