State v. Tankovich

• Decision Date: 11 July 2013
• Docket Number: No. 38813.,38813.
• Citation: 155 Idaho 221,307 P.3d 1247
• Court: Idaho Court of Appeals
• Parties: STATE of Idaho, Plaintiff–Respondent, v. Frank James TANKOVICH, Defendant–Appellant.

155 Idaho 221

307 P.3d 1247

STATE of Idaho, Plaintiff–Respondent,

v.Frank James TANKOVICH, Defendant–Appellant.

No. 38813.

Court of Appeals of Idaho.

July 11, 2013.

As Amended July 23, 2013.

Review Denied Sept. 17, 2013.

Stephen D. Thompson, Ketchum, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent. Jessica M. Lorello argued.

LANSING, Judge.

Frank James Tankovich appeals from his convictions for malicious harassment and conspiracy to commit malicious harassment. He asserts that the court erred by denying his motion to sever his trial from that of his co-defendant, that the court erred in admitting evidence, and that the evidence was insufficient to support the guilty verdict.

I.BACKGROUND

On the afternoon of August 16, 2009, Frank Tankovich and his brothers, William and Ira Tankovich (hereinafter referred to as Tankovich, William, and Ira, respectively) drove past the home of Kenneth Requena, a man of Puerto Rican descent, and his wife, Kimberly Requena (hereinafter referred to as Kenneth and Kimberly, respectively). The Requenas were standing in their garage at the time. As the Tankoviches passed, the Requenas noticed a swastika drawn in the dirt on the side of the Tankoviches' truck¹ and also noticed that the occupants of the truck were staring at them. The Requenas heard the tires of the truck skid or squeal to a stop and saw the truck reverse and stop in front of their driveway. Tankovich, who was the driver, yelled at Kenneth to come over to the truck, and Tankovich, William, and Ira all exited the truck and began to approach the Requenas. At Kenneth's request, Kimberly retrieved a gun from inside the Requenas' home, handed it to Kenneth, and called 911 while Kenneth cocked the gun and stood in the garage. The Tankoviches yelled at Kenneth, telling him he had "f- -ked up," that they were going to "f- -k [him] up," and that they would come back later. They then returned to the truck and drove away.

The police arrived shortly after the Tankoviches left, took statements from the Requenas, and departed. Approximately twenty to thirty minutes later, Tankovich and William returned to the Requenas' house on foot with William's pit bull, and Tankovich stated, "You f- -ked with the wrong people. I am going to f—k you up." Kenneth again asked his wife to retrieve his gun and to call 911.² At about the same time, Ira approached on foot from another direction carrying a gun. The police, who had remained in the area following the previous incident, quickly arrived, at which point Ira threw the gun away and began to walk away but was stopped by the police and arrested. As Tankovich and William spoke with the police, they loudly and repeatedly referred to Kenneth as a "f- -kin' beaner" and "f- -kin' terrorist," and told the police that "they were going to take care of things themselves" and that they were "gonna get that f- -kin' beaner" while looking or pointing at the Requenas. Tankovich and William initially refused to leave, apparently because they wanted the police to arrest Kenneth for his display of a firearm, but they eventually left and no additional arrests were made at that time.

Tankovich was subsequently charged with malicious harassment, Idaho Code § 18–7902, and conspiracy to commit malicious harassment, I.C. §§ 18–7902, 18–1701, and his case was joined for trial with the cases against William and Ira. At the initial trial, the district court declared a mistrial after inadmissible evidence was presented to the jury. At a second trial, Ira was convicted of conspiracy to disturb the peace, but the jury deadlocked on the charges against Tankovich and William, and the court again declared a mistrial. The State brought Tankovich and William to trial a third time, and the jury found both guilty of malicious harassment and conspiracy to commit malicious harassment.

II.ANALYSIS

A. Tattoo Evidence

Tankovich asserts that the court erred by admitting photographs of William's and Ira's tattoos and expert testimony explaining the common meanings of the symbols depicted in the tattoos. He argues that this evidence was irrelevant and unfairly prejudicial and that the expert testimony invaded the province of the jury.

The tattoos depicted in the photographs include a tattoo on Ira's calf or ankle of the words "Aryan Pride" over an inverted pentagram, a tattoo of an eagle on Ira's back, a tattoo of "SS" lightning bolts on William's arm, and a tattoo on William's chest of the words "Chris forever" with one or more three-leaf clovers embedded in the word "Chris." No evidence was presented to suggest that Tankovich has any tattoos. The State's expert testified that tattoos of "SS" lightning bolts are commonly associated with "Aryan neo-nazi belief systems or white supremacy belief systems," and that three-leaf clover tattoos are "common symbols worn by Aryan white supremacists."

After the photographs were admitted into evidence, but before they were published to the jury and before the State presented expert testimony on the common meaning of the tattoos, the court instructed the jury not to consider "the evidence that is about to be presented to you with respect to the tattoos" (necessarily including both the photographs and the expert testimony) in deciding the charge of malicious harassment against Tankovich. The court also gave the jury a written instruction stating, "There has been no evidence of any tattoos on the person of Frank Tankovich. You should not consider the evidence about the tattoos in deciding the charge of Malicious Harassment against Frank Tankovich." We presume that the jury followed the jury instructions given by the trial court in reaching its verdict. State v. Pepcorn, 152 Idaho 678, 690, 273 P.3d 1271, 1283 (2012) ; State v. Thumm, 153 Idaho 533, 544, 285 P.3d 348, 359 (Ct.App.2012). Therefore, our inquiry is limited to deciding the admissibility of the tattoo evidence as it pertains to the conspiracy charge against Tankovich.

1. Relevance

Tankovich does not dispute that the tattoos were relevant to the motive or intent of the persons bearing them,³ but argues that the evidence of his brothers' tattoos was not relevant against him. In the charge against Tankovich for conspiracy to commit malicious harassment, William and Ira were named as his co-conspirators. Thus, Tankovich is asserting that evidence of one co-conspirator's intent is not relevant to a charge of conspiracy against another co-conspirator.

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. Relevant evidence may be excluded, however, "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." I.R.E. 403. Whether evidence is relevant under Rule 401 is an issue of law that we review de novo, while the decision to admit relevant evidence over a Rule 403 objection is reviewed for an abuse of discretion. State v. Shutz, 143 Idaho 200, 202, 141 P.3d 1069, 1071 (2006) ; State v. Sanchez, 147 Idaho 521, 525, 211 P.3d 130, 134 (Ct.App.2009) ; State v. Clark, 115 Idaho 1056, 1059, 772 P.2d 263, 266 (Ct.App.1989).

A conspiracy consists of an agreement between two or more persons to accomplish an illegal objective, coupled with one or more overt acts in furtherance of that objective, as well as the intent necessary to commit the underlying substantive crime. I.C. § 18–1701 ;⁴ State v. Rolon, 146 Idaho 684, 690, 201 P.3d 657, 663 (Ct.App.2008) ; State v. Lopez, 140 Idaho 197, 199, 90 P.3d 1279, 1281 (Ct.App.2004) ; State v. Munhall, 118 Idaho 602, 606, 798 P.2d 61, 65 (Ct.App.1990) ; State v. Martin, 113 Idaho 461, 466, 745 P.2d 1082, 1087 (Ct.App.1987). It is generally accepted that conspiracy is a specific intent crime that requires the intent to agree or conspire and the intent to commit the offense which is the object of the conspiracy. Rolon, 146 Idaho at 691, 201 P.3d at 664. An agreement that is the foundation of a conspiracy charge need not be formal or express, and the evidence of the agreement need not be direct. Id. at 692, 201 P.3d at 665; Lopez, 140 Idaho at 199, 90 P.3d at 1281. Rather, the agreement may be inferred from the circumstances and proven by circumstantial evidence. Rolon, 146 Idaho at 692, 201 P.3d at 665; Lopez, 140 Idaho at 199, 90 P.3d at 1281.

The crime of malicious harassment is defined by I.C. § 18–7902 as follows:

It shall be unlawful for any person, maliciously and with the specific intent to intimidate or harass another person because of that person's race, color, religion, ancestry, or national origin, to:

(a) Cause physical injury to another person; or

(b) Damage, destroy, or deface any real or personal property of another person; or

(c) Threaten, by word or act, to do the acts prohibited if there is reasonable cause to believe that any of the acts described in subsections (a) and (b) of this section will occur.

Thus, in order to prove the charge of conspiracy to commit malicious harassment against Tankovich, the State was required to prove, among other things, that Tankovich and at least one other person conspired or agreed to commit one of the acts proscribed by I.C. § 18–7902(a) – (c) "with the specific intent to intimidate or harass" Kenneth because of his "race, color, religion, ancestry or national origin."

In our view, evidence of William's and Ira's racially-based intent or motivation was relevant to whether Tankovich's own actions were similarly motivated. If William and Ira harbored an intent to harass Kenneth because of his race, color, ancestry, or national origin, it is more likely that Tankovich's participation in the alleged conspiracy was with that same criminal motive or purpose. That is, the motive of one co-conspirator is probative, though not necessarily conclusive, to prove the intent of...