               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41540

STATE OF IDAHO,                                 )     2014 Unpublished Opinion No. 804
                                                )
       Plaintiff-Respondent,                    )     Filed: November 6, 2014
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
ERIC LAGRANDE HOUSER,                           )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. John R. Stegner, District Judge; Hon. Barry Watson,
       Magistrate.

       Intermediate appellate decision of the district court affirming judgment of
       conviction for misdemeanor battery, affirmed.

       John M. Adams, Kootenai County Public Defender; Jay W. Logsdon, Deputy
       Public Defender, Coeur d’Alene, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Eric LaGrande Houser was convicted of misdemeanor battery. He contends that the
magistrate court erred by admitting evidence of his intoxication and by excluding impeachment
evidence. He also asserts numerous claims of prosecutorial misconduct, including a claim that
the State impermissibly emphasized the victim’s shoulder injury. On intermediate appeal, the
district court affirmed the judgment of conviction, and Houser now further appeals.
                                               I.
                                       BACKGROUND
       Houser was charged with misdemeanor battery, Idaho Code § 18-903. The State alleged
that while Houser was a patient at Kootenai Medical Center, he “hit, slapped, punched, kicked
and/or otherwise struck Gregory D. Manning,” a nurse. Both parties filed evidentiary motions in



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limine, Houser seeking to exclude evidence of his prior drug use, and the State seeking to
exclude evidence of Manning’s disciplinary history at work and of the hospital’s policy
regarding violent or agitated patients. The court granted both motions in part, and denied both
motions in part and the case proceeded to trial.
       At trial, Manning testified that Houser had arrived at the hospital in an ambulance and
spent the night in the emergency room.                 Houser, who apparently had overdosed on
methamphetamine, did not require acute care but was permitted to sleep overnight in the hospital
before being discharged. Manning woke Houser in the morning and helped him get ready to
leave. Manning put Houser’s socks on him and then began to put Houser’s shoes on. Manning
testified that as he did so, Houser yelled at Manning, indicating he was in pain and kicked
Manning. Houser then struck Manning several times and threw the shoes at him. At that point,
Manning called “Code Gray,” a reference to a violent or agitated patient and restrained Houser.
Various hospital staff came to Manning’s aid. Houser was eventually arrested.
       Houser’s testimony at trial was self-contradictory. He testified that he did not believe he
had kicked Manning, but admitted that it was possible. He testified that he kicked reflexively,
but also aimed his kick to avoid striking Manning. He explained that he was delusional at the
time of the alleged offense, but later explained that he meant he was groggy.
       The jury returned a guilty verdict. Houser appealed to the district court, which affirmed
the judgment of the magistrate court. Houser further appeals, challenging the district court’s
affirmance of the magistrate court’s evidentiary rulings and asserting prosecutorial misconduct.
                                                   II.
                                           ANALYSIS
       When reviewing the decision of a district court sitting in its appellate capacity, our
standard of review is the same as expressed by the Idaho Supreme Court:
       The Supreme Court reviews the trial court (magistrate) record to determine
       whether there is substantial and competent evidence to support the magistrate’s
       findings of fact and whether the magistrate’s conclusions of law follow from
       those findings. If those findings are so supported and the conclusions follow
       therefrom and if the district court affirmed the magistrate’s decision, we affirm
       the district court’s decision as a matter of procedure.

Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.3d 214, 217-18 (2013) (quoting Bailey v. Bailey,
153 Idaho 526, 529, 284 P.3d 970, 973 (2012)). Thus, the appellate courts do not review the



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decision of the magistrate court. Bailey, 153 Idaho at 529, 284 P.3d at 973. Rather, we are
procedurally bound to affirm or reverse the decisions of the district court. State v. Korn, 148
Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1 (2009).
A.     The Court Did Not Err by Admitting Evidence of Houser’s Drug Use
       Houser filed a motion in limine seeking to exclude evidence that he had been using
methamphetamine and marijuana shortly before he was brought to the hospital. He argued that
the evidence was irrelevant and unfairly prejudicial. The State argued that the evidence was
relevant to Houser’s agitated state which, in the State’s view, was “the purpose for the contact.”
The State also asserted that the evidence would explain why, in a video exhibit, Houser appeared
lethargic, incomprehensible, and delayed in his responses. Because the evidence of prior drug
use would explain those conditions, the State contended the jury would be less likely to make
erroneous assumptions about Houser’s mental state. The magistrate court held that evidence that
Houser had recently used drugs and that those drugs had an ongoing effect on his behavior was
admissible, but evidence of drug use prior to that time was excluded.
       Idaho Rule of Evidence 404(b) specifies: “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,” but states that such evidence may be admissible if relevant for other
purposes. Thus, this rule prohibits introduction of evidence of misconduct 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).
       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 material 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). In this case, Houser does not
challenge the existence of his drug use as an established fact. Therefore, we address only the
relevance and unfair prejudice issues. We exercise free review of the trial court’s relevance


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determination, State v. Sheldon, 145 Idaho 225, 229, 178 P.3d 28, 32 (2008), but the trial court’s
balancing of the probative value of the evidence against the danger of unfair prejudice will not be
disturbed absent an abuse of discretion. State v. Norton, 151 Idaho 176, 190, 254 P.3d 77, 91
(Ct. App. 2011).
       Here, it is apparent that the State adduced evidence of Houser’s drug use for a purpose
other than to show bad character or propensity to commit a crime. The effects of a drug on a
person’s mental state are not “character,” or moral qualities. Accordingly, evidence that a person
is intoxicated, when used to show the physiological and psychological effects of those drugs on
the person at the time of the offense, does not amount to the sort of propensity evidence
prohibited by I.R.E. 404(b). A physician who practiced emergency medicine at the Kootenai
Medical Center testified that methamphetamine use causes paranoia, agitation, confusion,
psychosis, and hallucination. In turn, these effects may cause a user to engage in violent
behavior. Thus, evidence of Houser’s drug use was probative to demonstrate that he had the
requisite criminal intent when he struck Manning and tended to negate the defense that Houser
kicked reflexively.
       Nonetheless, evidence of drug use may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. We find no abuse of discretion, however, in the
trial court’s balancing of the probative value of this evidence against the danger of unfair
prejudice. Since most people do not batter a nurse even if the nurse causes physical pain in the
process of providing services, the evidence of methamphetamine intoxication was highly
relevant to explain Houser’s otherwise aberrant choice to kick a nurse.           The trial court
permissibly concluded that this probative value was not outweighed by the danger of unfair
prejudice.
B.     The Exclusion of Evidence of Manning’s Prior Workplace Discipline
       The State filed a motion in limine seeking to exclude evidence that the hospital had taken
disciplinary action against Manning a few years earlier as a result of his self-report that he had
administered incorrect medicine to a patient. The State argued that an accurate self-report was
not relevant impeachment evidence because it did not show any dishonesty. The magistrate
court held that the disciplinary action was not relevant impeachment evidence because the
circumstance that prompted the disciplinary action was unrelated to the facts of Houser’s case
and was not related to a pertinent trait of character.


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       On appeal, Houser argues that the evidence was relevant to show that Manning was
biased because he had an interest in maintaining his employment. In Houser’s view, Manning
“had almost been fired” after the disciplinary incident and could ill afford another determination
that he violated hospital rules. Houser also argues that a determination that Manning was to
blame for the altercation might threaten Manning’s opportunity to collect worker’s compensation
for his injuries.   For both reasons, Houser argues the jury should have been informed of
Manning’s motivation to lie.
       Evidence that is relevant to a material and disputed issue concerning the crime charged is
generally admissible. State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008). 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; see also Stevens, 146 Idaho at 143, 191 P.3d at 221. Whether a fact is of
consequence or material is determined by its relationship to the legal theories presented by the
parties. State v. Johnson, 148 Idaho 664, 671, 227 P.3d 918, 925 (2010). We review questions
of relevance de novo. State v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993).
       Here, we conclude that Houser has failed to demonstrate reversible error. Houser’s
factual claims are speculative. Our record contains limited information regarding the prior
disciplinary action or its ongoing effects on Manning’s employment. It is entirely possible that
the workplace incident was insignificant and did not have any ongoing effect on Manning’s
employment situation. More importantly, to the extent any error occurred, it was harmless for
the reasons set forth in Section D.
C.     The Exclusion of the “Code Gray” Evidence
       The State’s motion in limine also sought to exclude references to the hospital’s “Code
Gray” policy detailing the appropriate response to disruptive, aggressive, or combative patients.
It argued that the policy was not relevant and would create confusion as the standards applicable
in Manning’s workplace differed from the legal standard governing battery.
       Houser argued that admitting the substance of the Code Gray policy would reduce jury
confusion. During the altercation, Manning had called out a Code Gray. Houser argued that the
policy should be admitted to explain what that meant. He also argued that the policy should be
admitted to show Manning’s potential motive to lie; namely, if Manning violated the policy, his
employment could be terminated.


                                                5
       The magistrate court held that either party was permitted to describe, in general terms, the
meaning of “Code Gray” in order to avoid confusing the jury. It went on to hold that some
portions of the Code Gray manual could be mentioned, including policies promoting early
intervention and attempts to diffuse volatile situations. However, the court held that it would not
permit a mini-trial in which the jury would be asked to determine if the policy was violated and
what disciplinary action, if any, would be undertaken. The magistrate court further said:
       [W]e’re not gonna be having a--trial on whether or not um, the nurse should--
       should be--have undertaken disciplinary action or--employment issues. We’re not
       gonna get into that. So--So um, you know, we’re not gonna be getting into this
       whole policy thing um, and uh, we’re not gonna be getting into whether or not
       there’s employment issues there as a result of that. But I, you know, if--if Code
       Gray comes up, we need to know what it is and what the--just the general
       parameters of it are. I don’t see any problem with that.

       It is not clear whether the magistrate’s ruling is based upon relevancy or upon concerns
regarding jury confusion or waste of time. The court appears to have permitted some discussion
of the policy but prohibited a mini-trial to determine whether Manning had violated specific
provisions of the policy and what sanctions could be imposed under that policy. If that was what
the magistrate intended, then Houser was permitted to adduce some evidence of Manning’s
potential motive to be untruthful, but not permitted to present cumulative evidence or belabor the
issue. It appears that Houser was not allowed to ask what the result of a policy violation might
be or whether Manning could face employment consequences for violating the policy.
       Because the magistrate’s ruling is not entirely clear and because an alternative basis for
affirmance is available, we need not determine whether the ruling was in error. We conclude
that any potential error in excluding this evidence was harmless.
D.     Any Error in the Exclusion of the Prior Disciplinary Action or the Code Gray Policy
       was Harmless
       To the extent the district court erred by excluding evidence of Manning’s prior
disciplinary action or evidence pertaining to the Code Gray Policy, we conclude that error is
harmless. Error is not reversible unless it is prejudicial. State v. Stoddard, 105 Idaho 169, 171,
667 P.2d 272, 274 (Ct. App. 1983). Thus, we examine whether the alleged error complained of
in the present case was harmless. See State v. Lopez, 141 Idaho 575, 578, 114 P.3d 133, 136 (Ct.
App. 2005). Where a defendant meets his or her initial burden of showing that a violation has
occurred, the State has the burden of demonstrating to the appellate court beyond a reasonable


                                                6
doubt that the violation did not contribute to the jury’s verdict. State v. Perry, 150 Idaho 209,
227-28, 245 P.3d 961, 979-80 (2010).
       Houser was allowed to present a general argument that Manning, not Houser, was at fault
for the altercation. He was permitted to discuss the Code Gray manual and its requirements for
dealing with agitated or violent patients. He was also permitted to argue, in closing, that
Manning may have violated those procedures. In this case, showing that Manning’s alleged
conduct was a violation of specific work policies or procedures would not have been particularly
compelling evidence. Houser did not allege a small or technical deviation from the workplace
policy, the sort of thing one might hope to hide from an employer. Rather, Houser alleged that
he was seriously battered. If the jury accepted Houser’s testimony, it would be readily apparent
that Manning’s conduct violated Idaho law and would amount to gross misconduct in nearly any
workplace. No reasonable juror could believe that the hospital would tolerate that type of
conduct. Accordingly, the inference that Houser may have been precluded from arguing--that
Manning could be terminated or disciplined if he mistreated Houser--would have been obvious
to the jury from the admitted evidence.
       Moreover, because another witness partially supported Manning’s account and because
Houser gave inconsistent or confusing testimony, this was not a close case. The testimony of a
charge nurse at the hospital tended to corroborate Manning’s version of events. The nurse
testified that he heard both Manning and Houser shouting from inside a hospital room. When he
came into the room, he saw Houser attempt to kick Manning in the face. Then he saw Houser
attempt to strike Manning with a partially closed fist. He did not observe Manning attempting to
injure Houser, but did see Manning try to restrain Houser. Houser continued to struggle after the
nurse grabbed Houser, and the struggling continued until several security guards entered the fray.
       Houser testified to various facts that would tend to cause the jury to conclude he was not
a credible witness. He conceded that, at the time of the alleged kicking, he was confused as a
result of methamphetamine use and a lack of sleep, and he testified that he was experiencing
delusions. Later in his testimony, he attempted to explain that he was not delusional, but merely
groggy, but the jury was not required to accept this explanation. Houser also admitted kicking
his shoe off and that in so doing, he may have kicked Manning. Originally, he claimed that the
kick was reflexive, but later asserted that he made a conscious effort to avoid kicking Manning.
As the State argued, these descriptions are inconsistent.


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       Because any probative value of the excluded evidence was nominal, because other
witnesses confirmed that Houser was combative, and because Houser’s own testimony
undermined the persuasiveness of his defense, we conclude that any error was harmless beyond a
reasonable doubt. We are confident beyond a reasonable doubt that the exclusion of evidence of
Manning’s prior disciplinary incident and evidence that Manning’s conduct, as alleged by
Houser, would have violated a specific work policy did not contribute to the verdict.
E.     The Reference to Manning’s Sling Was Not Prosecutorial Misconduct
       Houser argues that the State impermissibly attempted to appeal to the sympathy of the
jury by needlessly eliciting a reference to Manning’s injury. The prosecutor had asked a witness
to identify various people involved in the altercation. After the witness referenced Manning, the
following exchange occurred:
       Q. Okay. Do you recognize the person that you’ve been referring to as
       Mr. Manning as present in the courtroom this afternoon?
       A. He’s not here right now, but, yes, I’ve seen him here today.
       Q. Okay. And he was the person who was the--the other nurse that was
       working--
       A. Yes.
       Q. --that day that you talked about?
       A. Yes.
       Q. And you have seen him here?
       A. Yes.
       Q. Was there anything descriptive about him today, anything standing out about
       his appearance today that would help identify him?
       A. His arm injury.
       Q. Okay. what--what denotes he has an arm injury?
       A. Um, he’s in a sling.

After this exchange took place, Houser objected and moved to strike the comment. On appeal,
Houser contends that the “only possible motivation for eliciting this testimony was to emphasize
the injury to the jury in order to arouse sympathy and have them identify with Mr. Manning.”
        “Appeals to emotion, passion or prejudice of the jury through use of inflammatory
tactics are improper.” State v. Troutman, 148 Idaho 904, 908, 231 P.3d 549, 553 (Ct. App.
2010); see also State v. Beebe, 145 Idaho 570, 575, 181 P.3d 496, 501 (Ct. App. 2007) (holding
that it is improper for the State to appeal to the jury to convict a defendant based upon sympathy
for a victim); see generally State v. Severson, 147 Idaho 694, 719-20, 215 P.3d 414, 439-40
(2009) (discussing various types of improper arguments including inflaming the emotions of the



                                                8
jury, appealing to the sympathy of the jury by referencing a murder victim’s family, and using
inflammatory words to disparage a witness).
       Although our system of criminal justice is adversarial in nature, and the prosecutor is
expected to be diligent and leave no stone unturned, the prosecutor is nevertheless expected and
required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in
reviewing allegations of prosecutorial misconduct we must keep in mind the realities of trial. Id.
A fair trial is not necessarily a perfect trial. Id. When there has been a contemporaneous
objection we determine factually if there was prosecutorial misconduct, then we determine
whether the error was harmless. Id.; State v. Hodges, 105 Idaho 588, 592, 671 P.2d 1051, 1055
(1983); State v. Phillips, 144 Idaho 82, 88, 156 P.3d 583, 589 (Ct. App. 2007). A conviction will
not be set aside for small errors or defects that have little, if any, likelihood of having changed
the results of the trial. State v. Pecor, 132 Idaho 359, 367-68, 972 P.2d 737, 745-46 (Ct. App.
1998). Where prosecutorial misconduct is shown, the test for harmless error is whether the
appellate court can conclude, beyond a reasonable doubt, that the result of the trial would not
have been different absent the misconduct. Id. at 368, 972 P.2d at 746.
       In this trial, the prosecutor asked several witnesses to identify a person sitting in the
courtroom about whom the witness was speaking. The prosecutor usually asked the witness to
identify an article of clothing that the person was wearing or asked where the person was located
in the courtroom. That is generally a proper and expedient means of identifying a person.
However, when a witness is asked to identify a person who is not in the room, it is more difficult
to identify or describe that person and there is no legal requirement that a witness identify a
person solely by reference to their clothing or prior location in the courtroom. Here, from our
limited record, it appears that the easiest and most obvious means for the witness to identify
Manning was by reference to the sling. Because the jury had already seen Manning wearing the
sling and because the fact that Manning was injured was not belabored, we find no indication
that the prosecutor was attempting to appeal to the jury’s sympathies. Houser has shown no
prosecutorial misconduct. 1



1
       In the same section, Houser cites numerous statements of the prosecutor that he
characterizes as misconduct. However, in his first brief, he provided no argument or authority
tending to show that any of them amounted to misconduct. He merely stated in a conclusory
fashion that the prosecutor referred to irrelevant evidence or that a comment was improper. We

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                                               III.
                                        CONCLUSION
       No reversible error has been shown. Therefore, the appellate decision of the district court
is affirmed.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




have repeatedly held that a party waives an issue on appeal if either authority or argument is
lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996). Houser seeks relief
from this rule and provides citation to authority in his reply brief. We decline his invitation to
consider that authority. Our rule is based upon numerous practical and equitable concerns,
including assuring that the respondent in an appeal has the opportunity to address the issues
raised by the appellant. Our consideration of the authority set forth in his reply brief would
deprive the State of its opportunity to refute Houser’s arguments.
        Further, no objection was made at trial to most of these statements of the prosecutor, and
as to those to which objection was made, Houser acknowledges that the error was harmless. As
to the prosecutor’s comments to which no objection was made, Houser does not argue that any of
them individually met the standard for fundamental error. See State v. Perry, 150 Idaho 209, 245
P.3d 961 (2010). Instead, he urges this Court to consider the prosecutor’s alleged improper
statements cumulatively and hold that collectively they deprived Houser of a fair trial. Idaho
Supreme Court precedent precludes us from doing so. Id. at 230-31, 245 P.3d at 982-83
(“alleged errors at trial, that are not followed by a contemporaneous objection, will not be
considered under the cumulative error doctrine unless said errors are found to pass the threshold
analysis under our fundamental error doctrine. . . . Instances of prosecutorial misconduct that
were not objected to at trial failed our threshold inquiry for fundamental error and are therefore
not properly considered error for purposes of cumulative error review.”); State v. Severson, 147
Idaho 694, 723, 215 P.3d 414, 443 (2009) (“errors not objected to at trial that are not deemed
fundamental may not be considered under the cumulative error analysis”); State v. Grove, 151
Idaho 483, 496, 259 P.3d 629, 642 (Ct. App. 2011) (this Court declined to apply the cumulative
error doctrine where the defendant failed to show fundamental error).

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