               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 46349

 STATE OF IDAHO,                                 )
                                                 )    Filed: March 27, 2020
        Plaintiff-Respondent,                    )
                                                 )    Karel A. Lehrman, Clerk
 v.                                              )
                                                 )    THIS IS AN UNPUBLISHED
 JESSY CAL BERRY,                                )    OPINION AND SHALL NOT
                                                 )    BE CITED AS AUTHORITY
        Defendant-Appellant.                     )
                                                 )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Lemhi County. Hon. Stevan H. Thompson, District Judge.

       Judgment of conviction for grand theft and unlawful possession of a firearm,
       affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jeffery D. Nye, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Jessy Cal Berry appeals from the judgment of conviction for grand theft and unlawful
possession of a firearm. Berry argues that the district court erred in allowing the State to present
certain evidence. For the reasons set forth below, we affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Berry was charged with grand theft, Idaho Code §§ 18-2403(1) and (4), 18-2407(1)(b), and
unlawful possession of a firearm, I.C. §§ 18-3316, 18-310(g). The charges arose when police were
dispatched to a residence after receiving a report of a battered female. Upon arriving at the
residence, Berry’s eighty-year-old grandmother (Beverly) informed officers that Berry had arrived
at her home intoxicated and attacked her. Beverly explained that Berry punched her in the chest,
threw her on the ground, and threatened to kill her. According to Beverly, the attack lasted about


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an hour. Beverly explained that when Berry went to the back of the house she was able to escape
and run to the neighbor’s property. She locked herself in the neighbor’s vacant barn and waited
for Berry to leave her residence. After Berry left, Beverly returned to her house to retrieve some
of her belongings and noticed that her handgun was missing. Thereafter, Beverly left her house,
drove to a local lodge, and reported the incident to dispatch. Officers transported Beverly to the
emergency room where she was treated and released. Officers took photographs of Beverly’s
injuries and transported her to a care facility. Thereafter, officers located Beverly’s stolen gun at
Berry’s home.
       As a result of the incident, the State charged Berry with battery, aggravated assault, second
degree kidnapping, grand theft, and unlawful possession of a firearm. The district court severed
the crimes against Beverly’s person (battery, second degree kidnapping, and aggravated assault)
from the gun crimes (grand theft and unlawful possession of a firearm) for trial. In the first trial,
the jury convicted Berry of misdemeanor battery and a lesser included offense of false
imprisonment. Before the second trial, which is the subject of the instant appeal, the district court
and the parties agreed to bifurcate the charges and allow the jury to hear and decide Count I (grand
theft) and then hear and decide Count II (felon in possession of a firearm). They did so because
Count II would inform the jury of Berry’s prior felony conviction which they would not normally
know about in deciding Count I. After agreeing to bifurcate the trial, the district court raised
another concern sua sponte. The court explained that it believed that Beverly’s testimony from
the first trial regarding the battery and second degree kidnapping was admissible as to Count I
(grand theft) given the State’s theory that Berry stole the gun immediately after the battery
occurred. However, the court wondered whether the evidence may not be admissible as to Count II
(unlawful possession of a firearm).
       The court presented the parties with an opportunity to argue about the admissibility of the
evidence. In doing so, the State argued that Berry’s attack of Beverly explained how Berry came
into possession of the firearm. The State acknowledged that there was potential prejudice with
offering some information from the prior trial and offered to “make every effort not to have some
of that information from that prior trial come in.” However, Berry objected to all of the
information about the attack of Beverly “wholesale” as being substantially more prejudicial than
probative under Idaho Rule of Evidence 403.
       Following Berry’s argument, the district court explained the following:

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       Very well. Well, the court’s intent would be to proceed as I’ve described. And as
       far as a pretrial ruling on the 404(b)--403 issue, the court is going to allow the State
       some leeway in presenting that kind of background information of where this gun
       was allegedly taken from, who it belonged to, how Mr. Berry had access to that
       home on the particular day in question it was alleged to have been taken, and the
       events that transpired between he and Ms. Berry, although I don’t think the detail
       of the prior trial needs to be presented, necessarily, with the photographs showing
       the battery injuries and all of those types of things, simply the interaction that’s
       alleged to have occurred between the two of them. Certainly will be no reference
       to him being convicted of a misdemeanor battery or false imprisonment. That
       would be inadmissible.
                But the events of that day, as the State indicated, are relevant to why Ms.
       Berry went to look for her gun. Her testimony that she alleges that it was there
       before, I assume--before and after [verbatim] those events, I think, are relevant and
       admissible to the theory that Mr. Berry actually took the gun. The alternative theory
       is that he simply possessed it at a later time, knowing or should have known that it
       was stolen.
                So the court’s going to proceed with the jury on Count I without any
       reference to Count II. So the jury will not be told in opening statements or this
       court’s instructions about the existence of Count II. Once a verdict is rendered,
       then obviously we’ll regroup. But it’s the intention of the court to then reinstruct
       the jury that--and advise them of Count II and the elements of Count II, proceed
       with whatever opening statements counsel may wish to make, and then present
       whatever evidence the State wishes to present and any evidence the defendant
       wishes to present as to that charge, and then resubmit it to the jury for deliberation
       as to Count II. I think that’s the--that’s going to be the ruling of the court, how
       we’ll proceed.
       On appeal, the parties dispute whether the court made a ruling on the issue of admissibility
before trial. At trial, the State presented various evidence about the altercation between Berry and
Beverly without further objection. Ultimately, the jury found Berry guilty of grand theft and
unlawful possession of a firearm. The district court sentenced Berry to ten years with three years
determinate for grand theft and a concurrent unified term of five years with three years determinate
for unlawful possession of a firearm. Berry timely appeals.
                                                 II.
                                            ANALYSIS
       Berry argues that the district court abused its discretion by allowing the State to present
evidence of Berry’s violence against Beverly under I.R.E. 403 and the error was not harmless. In
response, the State argues that (1) Berry failed to preserve his argument for appeal; (2) regardless,
the district court did not abuse its discretion by allowing the State to present evidence about the



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events that transpired between Berry and Beverly under I.R.E. 403; and (3) even if the district
court erred, any such error was harmless.
        First, we must address the State’s preservation argument. The State cites to State v. Hester,
114 Idaho 688, 700, 760 P.2d 27, 39 (1988) and contends that Berry’s argument is not preserved
for appeal because he did not obtain an unqualified adverse ruling on his motion in limine and he
failed to object to evidence of the altercation at trial. More specifically, the State claims that the
court’s statement that it would “allow the State some leeway” in presenting evidence of the
altercation, and that it did not “think the detail of the prior trial needs to be presented, necessarily”
both indicate that the court was deferring its ruling to see how the evidence played out at trial.
While the State’s contention is well taken, we will assume without deciding that Berry’s argument
is preserved for appeal. Nonetheless, Berry’s claim fails.
        In relation to I.R.E. 403, Berry contends that the district court failed to conduct the
appropriate balancing test. Berry argues that although the district court mentioned I.R.E. 403, the
court abused its discretion because it did not discuss how it balanced the evidence it deemed
relevant against its prejudicial effect. Berry contends that under State v. Samuel, 165 Idaho 746,
452 P.3d 768 (2019) and State v. Parker, 157 Idaho 132, 334 P.3d 806 (2014), the district court
was required to discuss its balancing on the record. Next, Berry argues that even if the court did
conduct the I.R.E. 403 balancing test, it erred in determining that the probative value was not
substantially outweighed by the danger of unfair prejudice. Finally, Berry claims that the State
cannot show that the district court’s errors were harmless.
        The relevancy of evidence is reviewed de novo. State v. Shutz, 143 Idaho 200, 202, 141
P.3d 1069, 1071 (2006). Idaho Rule of Evidence 403 governs the exclusion of relevant evidence
and provides: “The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” A
lower court’s determination under I.R.E. 403 will not be disturbed on appeal unless it is shown to
be an abuse of discretion. State v. Enno, 119 Idaho 392, 406, 807 P.2d 610, 624 (1991); State v.
Clark, 115 Idaho 1056, 1059, 772 P.2d 263, 266 (Ct. App. 1989).                  When a trial court’s
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to
determine whether the lower court: (1) correctly perceived the issue as one of discretion; (2) acted
within the boundaries of such discretion; (3) acted consistently with any legal standards applicable

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to the specific choices before it; and (4) reached its decision by an exercise of reason. State v.
Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).
       We conclude that the district court did not abuse its discretion by allowing the State to
present some evidence of the events that transpired between Berry and Beverly. First, contrary to
Berry’s contention, the district court was not required to expressly articulate its I.R.E. 403
balancing on the record when it is apparent from the record. Second, the court conducted the
required analysis under I.R.E. 403 and correctly concluded that some of the evidence of the
interaction between Berry and Beverly outweighed the risk of unfair prejudice and some did not.
In deciding on Berry’s objection, the court explicitly cited to I.R.E. 403. Thereafter, the court
concluded that certain evidence pertaining to the altercation (i.e. where the gun was taken from,
who it belonged to, and how Berry had access to Beverly’s home) was probative and admissible.
The district court also applied the balancing test to exclude evidence that it deemed unfairly
prejudicial. The evidence the court deemed inadmissible included details of the prior trial,
photographs of Beverly’s injuries, and references to Berry’s false imprisonment and battery
convictions.
       The probative value of evidence relating to the altercation was high because it was relevant
to prove how Berry came into possession of the gun, that Berry wrongfully took Beverly’s gun,
and that Berry intended to take the gun. Although Berry takes issue with the district court allowing
the State to admit certain evidence of the altercation, evidence is not unfairly prejudicial simply
because it is damaging to a defendant’s case. Instead, evidence is unfairly prejudicial when it
suggests decision on an improper basis. State v. Fordyce, 151 Idaho 868, 870, 264 P.3d 975, 977
(Ct. App. 2011). The evidence that the district court ruled admissible did not suggest decision on
an improper basis. Thus, Berry has not shown that the district court abused its discretion.
                                                III.
                                         CONCLUSION
       Berry has failed to show that the district court abused its discretion in admitting evidence
of the altercation under I.R.E. 403. Accordingly, we affirm Berry’s judgment of conviction for
grand theft and unlawful possession of a firearm.
       Chief Judge HUSKEY and Judge BRAILSFORD CONCUR.




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