870 P.2d 673 (Idaho App. 1994), 20118, State v. Velasquez-Delacruz

Docket Nº:20118.
Citation:870 P.2d 673, 125 Idaho 320
Opinion Judge:WALTERS,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Victor VELASQUEZ-DELACRUZ, Defendant-Appellant.
Attorney:Michael J. Wood and John A. Olson, argued, Twin Falls, for defendant-appellant. Larry EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., argued, Boise, for plaintiff-respondent.
Judge Panel:LANSING and PERRY, JJ., concur.
Case Date:February 22, 1994
Court:Court of Appeals of Idaho
 
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Page 673

870 P.2d 673 (Idaho App. 1994)

125 Idaho 320

STATE of Idaho, Plaintiff-Respondent,

v.

Victor VELASQUEZ-DELACRUZ, Defendant-Appellant.

No. 20118.

Court of Appeals of Idaho.

February 22, 1994

Petition for Review Denied April 7, 1994.

Page 674

[125 Idaho 321] Michael J. Wood and John A. Olson, argued, Twin Falls, for defendant-appellant.

Larry EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., argued, Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

Victor Velasquez-Delacruz (Velasquez) was tried before a jury and found guilty of two counts of aggravated assault and two counts of aggravated battery. See I.C. §§ 18-901, 18-905 (assault); 18-903, 18-907 (battery). On appeal, he challenges the court's admission of testimony and photographs depicting prior bad acts which Velasquez claims were irrelevant and prejudicial. He also argues that the district court improperly instructed the jury regarding his use of a pistol to intimidate his victims. We affirm.

Facts and Procedural Background

Velasquez and his girlfriend, Billie Jo, shared a home with Renae Mittrucker (Renae) and Renae's boyfriend Martin Martinez-Segueda (Martin). Billie Jo had an affair with Martin's cousin and when Velasquez found out, he told Billie Jo to move from the home. Apparently, Renae and Martin knew of the affair and in an attempt to protect their friendship with Velasquez, they did not tell him right away. Later, Renae and Martin told Velasquez of the affair, which made Velasquez suspicious of their previous silence.

The night after he learned Billie Jo had been unfaithful, Velasquez met Renae and Martin in their driveway as they were about to exit their car. Velasquez had been drinking, and appeared to the victims to be drunk. Martin and Velasquez approached each other and Velasquez punched Martin several times, at first not saying anything. Velasquez then accused Martin of lying. Martin testified that Velasquez held a semi-automatic .22 caliber pistol in one hand while he hit Martin with the other. He also testified that Velasquez placed the gun barrel against Martin's stomach. Velasquez shot out two of the tires on Martin's car. He hit Martin again, then stopped to reload the pistol.

Velasquez then walked to the passenger side of the car and pulled Renae out of the car by her hair. He placed her next to Martin and shot out the car's other two tires. He reloaded the gun and returned to hit Martin again. Renae tried to walk away, but Velasquez pinned her against the car and, according to Renae, placed the barrel of the gun against her forehead. Velasquez denied using the gun in this fashion. Renae stated that she then brushed the gun away with her hand. Velasquez then ordered Renae and Martin into Velasquez's car, telling them that they were all going to drive to find Billie Jo so he could show them that he had "busted" her face and broken her teeth. Velasquez also stated that he was going to find out who was lying about the affair and that "someone is going to die." Sometime during the fracas, Velasquez told Renae and Martin that he had burned their bed, an act based on Velasquez' conclusion that the bed was used in the affair. He also stated he had shot their television.

Before everyone entered the car, the police arrived and arrested Velasquez. He was charged with aggravated battery and aggravated assault on Renae and Martin and tried before a jury, which found him guilty. The court imposed concurrent sentences, which included an enhancement for the use of a firearm. Velasquez appeals, arguing error in the admission of evidence and the jury instructions addressing...

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