2015 Opinion No. 4
This decision is not final until exception of the 21 day petition for rehearing period. Pursuant to rule 118 of the Idaho Appellate Rules.
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Richard S. Christensen, District Judge.
Sara B. Thomas, State Appellate Public Defender; Jason Pintler, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy Attorney General, Boise, for respondent.
GRATTON, Judge. Chief Judge MELANSON and Judge GUTIERREZ CONCUR.
Russell Allen Passons appeals from his judgment of conviction for two counts of aggravated assault, Idaho Code § § 18-901, 18-905, and one count of burglary, I.C. § 18-1401. Passons argues the district court erred by admitting character evidence unrelated to the charged crimes, and by denying his motions for a mistrial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The State charged Passons with two counts of aggravated assault and one count of burglary. The information also alleged Passons
used a deadly weapon (a knife) while committing the aggravated assaults, and that Passons was a persistent violator of the law. The State alleged that Passons entered a retail store in Post Falls and took a car seat and stroller combination (stroller) without paying for it and placed it in his car. Passons then re-entered the store, placed a television into a shopping cart, and again exited without paying. However, two store employees observed Passons exit without paying and confronted him in the parking lot. These employees asserted that Passons pulled a knife and pointed it at them and then ran to his car and drove away, leaving the television in the shopping cart. Before trial, the State filed notice of its intention to introduce evidence pursuant to Idaho Rule of Evidence 404(b).
The I.R.E. 404(b) evidence consisted of events that allegedly occurred the day after the incident in Post Falls. Passons, accompanied by two new acquaintances, went to the same retail chain located in Ponderay to return the stroller for store credit. The woman who accompanied Passons into the store attempted to return the stroller, but was denied. Passons, who had also entered the store, was identified by a store employee as the individual who had stolen the stroller at the other store in Post Falls. The employee called the police. By the time the police arrived, Passons and the two individuals had driven away. However, the officers soon identified Passons' vehicle and began pursuit. Passons fled, but ultimately crashed the vehicle and was apprehended. Passons objected to the introduction of the evidence, arguing it was not relevant to what allegedly occurred the previous day, the burglary, or the aggravated assault charges, and it would allow the jury to convict on the basis of Passons' character. Passons also argued that the evidence had little probative value and any value was outweighed by its prejudicial impact. The district court concluded the evidence was admissible as part of a continuation of the crime alleged to have occurred the previous day. Further, the evidence could be used to establish Passons' motive and intent to commit the theft when returning to the store to take the television.
During voir dire, a juror commented that based on Passons' tattoos, she could not remain unbiased because she believed the tattoos indicated he had been repeatedly incarcerated. The judge excused the juror. Passons made a motion for a mistrial based on the juror's comments. The district court denied the motion.
The State presented the following evidence at trial: An asset protection associate from the Post Falls store testified that he observed Passons load a 37-inch flat screen television into a shopping cart, briefly stop in the bicycle aisle, then exit the store without paying. He testified that he and another associate followed Passons into the parking lot where they confronted him. Passons responded to the employees: " I ain't stopping for sh--. Fu-- you. You can't touch me." The associate then described how Passons pulled out a folding knife from his right front pocket, opened the blade, pointed the knife at them briefly, and then ran to his car. The associate called police and followed Passons to his car, where he observed the stroller in the car. The television was recovered, but the UPC and shipping label had been cut from the box. The associate also described surveillance video showing Passons taking the stroller to his vehicle, and Passons attempting to take the television from the store. The associate acknowledged that the store has a policy requiring employees to disengage with suspected shoplifters whenever the suspect displays a weapon.
The State submitted video clips of Passons taking the stroller without paying and placing it in his car. The surveillance video showed Passons taking the television as described in the associate's testimony. However, there is no video of the confrontation between Passons and the two store employees in the parking lot. The associate testified that sun glare prevented the video from being viewable, so he decided not to save that video.
The second asset protection associate testified that he saw Passons exit the store without paying for the television, and likewise described the confrontation wherein Passons pulled out the knife and pointed it ...