State v. Fortin

• Decision Date: 30 April 2012
• Docket Number: Docket No. 38069
• Parties: STATE OF IDAHO, Plaintiff-Respondent, v. CODY JAMES FORTIN, Defendant-Appellant.
• Court: Idaho Court of Appeals

STATE OF IDAHO, Plaintiff-Respondent,

v.CODY JAMES FORTIN, Defendant-Appellant.

Docket No. 38069

COURT OF APPEALS OF THE STATE OF IDAHO

Filed: April 30, 2012

2012 Unpublished Opinion No. 454

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. D. Duff McKee, District Judge.

Judgment of conviction for aggravated battery and use of a deadly weapon in the

commission of a crime, affirmed.

Greg S. Silvey, Star, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney

General, Boise, for respondent.

MELANSON, Judge

Cody James Fortin appeals from his judgment of conviction for aggravated battery and use of a deadly weapon in the commission of a crime. For the reasons set forth below, we affirm.

I.FACTS AND PROCEDURE

In 2009, the state charged Fortin with aggravated battery, I.C. §§ 18-903(a), 18-907(a), and 18-907(b); and use of a deadly weapon in the commission of a crime, I.C. § 19-2520. The information alleged that Fortin willfully and unlawfully stabbed the victim in the face and shoulder with a knife, causing the man great bodily harm or permanent disfigurement. The state filed a notice of intent to use evidence at trial that Fortin fled when approached by police officers the day after the alleged battery occurred. The state asserted that, while the evidence was not believed to fall under I.R.E. 404(b), the notice was provided out of caution in the event thedistrict court found otherwise. Fortin objected to the admission of such evidence at trial. A jury found Fortin guilty of aggravated battery and use of a deadly weapon in the commission of a crime. Fortin was sentenced to a unified term of twenty-five years, with a minimum period of confinement of twelve years. Fortin appeals.

II.ANALYSIS

A. Evidence of Flight

Fortin argues that the district court abused its discretion by failing to recognize that evidence of his flight was I.R.E. 404(b) evidence and by failing to conduct an appropriate balancing analysis of the probative value of such evidence against the danger of unfair prejudice. Idaho Rule of Evidence 404(b), provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that the prosecution in a criminal case shall file and serve notice reasonably in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

This rule prohibits introduction of evidence of acts other than the crime for which a defendant is charged if its probative value is entirely dependent upon its tendency to demonstrate the defendant's propensity to engage in such behavior. State v. Grist, 147 Idaho 49, 54, 205 P.3d 1185, 1190 (2009). Of course, evidence of other crimes, wrongs, or acts may implicate a person's character while also being relevant and admissible for some permissible purpose, such as those listed in the rule. When determining the admissibility of evidence to which a Rule 404(b) objection has been made, the trial court must first determine whether there is sufficient evidence of the other acts that a reasonable jury could believe the conduct actually occurred. If so, then the court must consider: (1) whether the other acts are relevant to a material and disputed issue concerning the crime charged, other than propensity; and (2) whether the probative value is substantially outweighed by the danger of unfair prejudice. Grist, 147 Idaho at 52, 205 P.3d at 1188; State v. Parmer, 147 Idaho 210, 214, 207 P.3d 186, 190 (Ct. App. 2009).

Rule 404(b) allows evidence of other acts if admitted for the purpose of showing knowledge or consciousness of guilt. State v. Pokorney, 149 Idaho 459, 463, 235 P.3d 409, 413(Ct. App. 2010). Consciousness of guilt has been found in a variety of circumstances. Evidence of flight, escape, or failure to appear on the part of a defendant is often identified as relevant to demonstrate consciousness of guilt. State v. Moore, 131 Idaho 814, 819-20, 965 P.2d 174, 179-80 (1998) (admitted evidence that defendant left Idaho for his home in Oregon to avoid a scheduled interview from an officer investigating lewd conduct); State v. Rossignol, 147 Idaho 818, 821-22, 215 P.3d 538, 541-42 (Ct. App. 2009) (allowed evidence that defendant failed to appear at a hearing to increase bond and left the jurisdiction); State v. Friedley, 122 Idaho 321, 322-23, 834 P.2d 323, 324-25 (Ct. App. 1992) (allowed stipulation that defendant failed to appear at arraignment and at the initially scheduled trial on drug charges).

The inference of guilt may be weakened when a defendant harbors motives for escape other than guilt of the charged offense. Rossignol, 147 Idaho at 821, 215 P.3d at 541. The existence of alternative reasons for the escape goes to the weight of the evidence and not to its admissibility. Id. at 822, 215 P.3d at 542. Admission of evidence which is probative on the issue of flight to avoid prosecution requires the trial court to conduct a two-part analysis. Id. First, the trial court must determine that the evidence is relevant under I.R.E. 401; and, second, the court must determine that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Id. This Court reviews the question of relevancy in the admission of evidence de novo. Id. A trial court's decision that evidence is more probative than prejudicial is reviewed for abuse of discretion. Id.

We first address Fortin's assertion that the district court erred by failing to recognize that evidence of his flight was I.R.E. 404(b) evidence. Indeed, the district court did not view evidence of Fortin's flight as implicating I.R.E. 404(b). However, the only adverse consequence of this identified by Fortin is that the district court did not, on the record, balance the probative value of this evidence against the risk of unfair prejudice.¹ We, therefore, address that omission.

In determining that evidence of Fortin's flight would be admitted, the district court stated:

We visited at some length and talked about this in chambers before trial began, and I indicated that at that time how I was inclined to read this and how I as was inclined to rule.. . . .

The law for years has been that flight can be argued-- a flight to avoid arrest can be argued by the prosecutor as indicia of guilt.

Accordingly, the district court referred to the probative value of the evidence of Fortin's flight. However, as Fortin asserts, the district court did not make any comments on the record regarding the danger of unfair prejudice posed by such evidence.²

In State v. Fordyce, 151 Idaho 868, 869-70, 264 P.3d 975, 976-77 (Ct. App. 2011), this Court addressed an argument that the district court in that case abused its discretion by failing to conduct a balancing analysis of the probative value of challenged evidence against the danger of unfair prejudice on the record. We held that, because Fordyce failed to identify any unfair prejudice from admission of the challenged evidence, the district court did not err by failing to conduct a balancing analysis on the record. Id. at 870-71, 264 P.3d at 977-78.

Here, with respect to identifying unfair prejudice from the flight evidence, Fortin's counsel stated at trial:

Two weeks ago . . . I actually tried to get a pretrial ruling on this and [the judge] wouldn't allow us to do it because he said he wanted the trial judge to make the determination.

The reality of it is, if I file a motion, it is my obligation to set it for notice of hearing. And the reality here is that this evidence coming in now, without any prior notice from the prosecutor, is extremely prejudicial. Obviously, it is prejudicial. It is inflammatory.

To the extent Fortin argued that evidence of his flight was unfairly prejudicial and should not have been admitted because he did not have prior notice from the prosecutor that such evidencewould be used, this assertion was without merit because it was belied by the record and Fortin's own statements. Specifically, prior to trial, the state filed a notice of intent to use evidence of Fortin's flight and, as just described, Fortin asserted that two weeks prior to trial he attempted to get a pretrial ruling on the state's notice of intent to use such evidence.

While not specifically identified as unfair prejudice, Fortin also argued that the state's evidence did not implicate flight because there were potential motives for Fortin's escape other than guilt of the aggravated battery. Specifically, Fortin asserted:

Now, what the prosecutor said is not a full representation of what happened. These officers approached in plain clothes in unmarked police cars, and so I don't know how you can possibly say it is even evidence of flight.

Someone approaches [Fortin] with a gun. Obviously, [the victim] is the one who brought the knife to this fight, he attacks [Fortin] the night before, and now somebody approaches [Fortin] with a gun.

We reiterate that the inference of guilt drawn from evidence of escape or flight may be weakened when a defendant harbors motives for escape other than guilt of the charged offense. Rossignol, 147 Idaho at 821, 215 P.3d at 541. However, the existence of alternative reasons for the escape goes to the weight of the evidence and not to its admissibility. Id. at 822, 215 P.3d at 542. Further, if Fortin fled from police the day after he committed the aggravated battery, it cannot be said that apprising the jury of this fact was necessarily unfair. Evidence is not unfairly prejudicial simply because it is damaging to a defendant's case. Fordy...