State v. Passons
| Decision Date | 15 January 2015 |
| Docket Number | No. 41288.,41288. |
| Citation | 158 Idaho 286,346 P.3d 303 |
| Court | Idaho Court of Appeals |
| Parties | STATE of Idaho, Plaintiff–Respondent, v. Russell Allen PASSONS, Defendant–Appellant. |
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.
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.
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: 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 at them. The associate also testified that he found the UPC and serial number that had been cut from the television box in the bicycle aisle.
The remaining testimony dealt with the events taking place the following day. The asset protection manager at the Ponderay store testified that he saw Passons in the store and recognized him from a report regarding the Post Falls incident. He called police after observing Passons exit the store with a female and place a stroller into the car and drive away. The woman who attempted to return the stroller testified that she and her boyfriend met Passons that day and agreed to attempt to return the stroller. The woman and Passons entered the store while her boyfriend waited in the vehicle. Unable to return the stroller, she left with Passons in a hurry. She explained that they were chased by police for approximately twenty to twenty-five minutes before the car, driven by Passons, hit a curb and blew out the front passenger-side tire. The three were removed from the car at gunpoint.
Finally, an officer testified that she was one of the officers who pursued Passons as he fled from police. Unprompted by the prosecutor, the officer testified that she was following a robbery suspect. Defense counsel objected and again sought a mistrial. The district court denied the motion, instead providing a curative instruction. The officer went on to explain that the pursuit lasted approximately seven minutes, and after Passons crashed the car, they recovered the stroller and a set of building blocks.
The State's presentation of evidence and argument indicated the burglary was a result of Passons entering the store the second time to steal the television. The jury convicted Passons of one count of burglary and two counts of aggravated assault. Passons waived his right to a jury trial on the allegation of use of a weapon and being a persistent violator. The district court found that Passons had used a deadly weapon during the commission of the aggravated assaults. However, the court found there was insufficient evidence that Passons had two or more prior felony convictions. Passons timely appeals.
Passons argues the district court abused its discretion by allowing testimony relating to his actions the day after the charged crimes. Passons also argues the district court erred in failing to grant his motions for a mistrial. Finally, Passons contends that the various alleged errors at trial combined to deprive him of his right to a fair trial.
Passons argues the testimony of the events that occurred the day after the charged offense was inadmissible character evidence. He also argues that even if the evidence was not improper as character evidence, the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. The evidence rule in question, I.R.E. 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) ; see also State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct.App.2002). Of course, evidence of such a crime, wrong, or act may implicate a person's character while also being relevant and admissible for some permissible purpose, such as those listed in the rule. See State v. Pepcorn, 152 Idaho 678, 688–89, 273 P.3d 1271, 1281–82 (2012).
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 find the conduct actually occurred. If so, then the court must consider: (1) whether the other acts are relevant to a materially 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...
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