                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 41494

STATE OF IDAHO,                         )                    Boise, June 2015 Term
                                        )
    Plaintiff-Respondent,               )                    2015 Opinion No. 111
                                        )
v.                                      )                    Filed: November 30, 2015
                                        )
JOSEPH D. HERRERA,                      )                    Stephen W. Kenyon, Clerk
                                        )
    Defendant-Appellant.                )                    SUBSTITUTE OPINION. THE
                                        )                    COURT’S PRIOR OPINION
                                        )                    DATED AUGUST 7, 2015 IS
_______________________________________ )                    HEREBY WITHDRAWN

       Appeal from the District Court of the First Judicial District of the State of Idaho,
       Benewah County. Hon. Fred M. Gibler, District Judge.

       The judgment of conviction is vacated and the case is remanded.

       Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Justin M.
       Curtis argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
       Kenneth K. Jorgensen argued.
                                 _____________________

J. JONES, Chief Justice
       Joseph Herrera appeals from a conviction of second-degree murder. Herrera was holding
a firearm that discharged, killing his girlfriend, Stefanie Comack. Herrera argues (1) there was
insufficient evidence to support a finding of malice, and (2) improper testimony from a number
of witnesses unfairly prejudiced his case.
                                      I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       At the time of the shooting, Herrera and Stefanie had been dating for three to four months
and were living together in Herrera’s parents’ house. For some time leading up to the shooting,
Herrera was in possession of two of his father’s handguns, which he had taken without his
father’s knowledge. On December 24, 2011, Herrera was out late and arrived home around 4:30
or 5:00 a.m. on Christmas morning, having used both methamphetamine and marijuana that


                                                1
morning. Herrera testified that when he arrived home he went to sleep for a few hours and woke
up at roughly 10:00 a.m. When Herrera and Stefanie woke up Christmas morning, they began
arguing about Facebook messages Stefanie had exchanged with other men and the fact that
Herrera did not want to go to Stefanie’s mother’s house for Christmas.
       Herrera testified the gun that killed Stefanie was in the drawer of a nightstand next to his
bed the morning of the shooting. He testified that during the course of their argument, Stefanie
was packing her things to go to her mother’s house and that he was handling the gun. Herrera
claims that Stefanie was packing to go to her mother’s house only to celebrate Christmas, but the
State’s theory was that she was packing to leave Herrera and end the relationship. He testified
that he planned to drive Stefanie to her mother’s house and was unloading the gun to hide it so
his mother would not find it while he was gone. At some point, Herrera removed the magazine
from the gun, but there was a round in the chamber. Herrera testified that at the moment he
picked the gun up out of the drawer, he did not believe there was a round in the chamber.
       He gave varying accounts of what exactly caused the gun to discharge. Herrera told the
first officer on scene that when he was trying to unload the gun it just “went off and hit her in the
head.” In a police interview several hours after the shooting, Herrera told the officers he was in
the process of taking the magazine out of the gun, and then he pulled the slide back, and the gun
went off. At trial, Herrera testified that he began to lift the gun to point it at himself to make the
point to Stefanie that he would rather kill himself than go to her mother’s house for Christmas.
He said that when he began to do this, Stefanie “grabbed the barrel of the gun and pulled it and it
went off.” In his factual account provided at trial, Herrera did not testify to ever touching or
pulling on the gun’s slide. When asked whether he did pull the slide back, Herrera stated that he
did not remember. Herrera testified that, although he had never shot this gun before, he did have
experience shooting guns, and he had taken a hunter’s safety course.
       Although Herrera testified he did not remember the gun coming into contact with
Stefanie’s forehead, testimony from the emergency room physician who first examined Stefanie
and from the county medical examiner strongly evidenced that the gun was pressed against
Stefanie’s forehead when it fired. Additionally, testimony from an Idaho State Police forensic
scientist established that the gun was incapable of firing without the trigger being pulled. He also
testified that when the magazine was in the gun and there was only one cartridge remaining in
the gun, the gun tended to fail to eject the final cartridge from the chamber when the slide was



                                                  2
 pulled.
           By all accounts, Herrera was extremely upset after the fatal shot was fired. His mother
 testified that Herrera “was standing, and was waving his arms, and he was screaming and saying,
 ‘Oh, my God. I accidentally shot Stefanie.’” When the first officer arrived, Herrera ran to him,
 screaming for help because he had accidentally shot his girlfriend. The officer described Herrera
 as “totally hysterical,” that “[h]e was just screaming. Not really coherently very much.”
           Following a police interview, Herrera was arrested and charged with second-degree
 murder. Prior to trial, the district court held a hearing to determine the admissibility of certain
 evidence at trial, consisting primarily of testimony from third parties as to statements allegedly
 made by Stefanie concerning her relationship with Herrera and past violent events involving
 Herrera. The court ruled that a number of these statements would be admissible at trial to show
 Stefanie’s state of mind in the days leading up to the shooting. With these statements the State
 attempted to show that Stefanie was unhappy in the relationship and intended to end it. There
 were also statements made by witnesses at trial concerning matters the court had specifically
 excluded following the pre-trial hearing. The jury was instructed on second-degree murder,
 voluntary manslaughter, and involuntary manslaughter. Herrera was convicted of second-degree
 murder and sentenced to life in prison with twenty-two years fixed. He timely appealed.
                                                II.
                                        ISSUES ON APPEAL
           Herrera raises the following issues on appeal:
 1.        Whether there is sufficient evidence to support a finding of the malice required for a
           second-degree murder conviction.
 2.        Whether testimony at trial unfairly prejudiced Herrera’s case.
                                                 III.
                                              ANALYSIS
A.    There was sufficient evidence to support the jury’s verdict.
           Herrera argues that, as a matter of law, one who believes a gun is unloaded cannot have
 the malice required for second degree murder if that gun fires and a death results. He also argues
 that allowing one to be convicted of murder under the circumstances in this case would render a
 nullity part of Idaho Code section 18-4006’s involuntary manslaughter provision. This issue is a
 mixed question of law and fact. The legal question is whether a belief that a gun is unloaded
 prevents any possible finding of the malice required for murder. If the answer to that question is



                                                    3
anything but an unqualified “yes,” the factual determination must then be made as to whether
Herrera’s specific conduct shows he acted with malice. The authorities do not support the bright-
line distinction between murder and manslaughter that Herrera suggests.
         “Murder is the unlawful killing of a human being . . . with malice aforethought.” I.C. §
18-4001. Malice can be express or implied. I.C. § 18-4002. It is express where one has the
deliberate intention to unlawfully take a life. Id. One acts with implied malice where “the
circumstances attending the killing show an abandoned and malignant heart.” Id. Implied malice
may include killings where there is no intent to kill, such as a killing during the commission of a
felony or a killing evidencing a depraved heart. State v. Lankford, 116 Idaho 860, 866−67, 781
P.2d 197, 203−04 (1989). In State v. Porter, we stated the elements of implied malice that will
support a charge of murder under a depraved heart theory are met when:
         1. The killing resulted from an intentional act,
         2. The natural consequences of the act are dangerous to human life, and
         3. The act was deliberately performed with knowledge of the danger to, and with
             conscious disregard for, human life.
142 Idaho, 371, 374−75, 128 P.3d 908, 911−12 (2005); see also ICJI 702. Ultimately, it is the
province of the jury to determine whether the evidence in the record supports only a conviction
of manslaughter or whether there is sufficient proof of malice to amount to murder. 1 State v.
Gomez, 94 Idaho 323, 325, 487 P.2d 686, 688 (1971).
         Herrera cites several sources to support his argument that the authorities uniformly hold
one cannot have the requisite malice for murder and also believe his or her gun to be unloaded.
He quotes American Jurisprudence as follows:
         Where a person points a pistol at another in sport, as a joke, or merely to cause
         fright, believing and perhaps having some reason to think that it is not loaded, and
         subsequently pulls the trigger, causing the pistol to be discharged, and resulting in
         the killing of the person pointed at, he or she is guilty of manslaughter.
40 Am. Jur. 2d Homicide § 90. He also cites several cases from non-controlling jurisdictions to
support the same proposition. However, Herrera fails to address language in these sources
acknowledging circumstances where such conduct can amount to second-degree murder.


1
 Although the court may apply a presumption of malice where the use of a deadly weapon results in unlawful death,
Gomez, 94 Idaho at 325, 487 P.2d at 688, the district court denied the State’s request for an instruction on this
presumption. The record does not contain the discussion leading to the court’s rejection of the instruction, and we do
not address the applicability of the presumption to this case.


                                                          4
American Jurisprudence states that the standard quoted by Herrera is correct only “under
circumstances not evidencing a heart devoid of a sense of social duty.” Id. Additionally, the
cases he cites show that courts look at the totality of the circumstances surrounding the killing to
decide whether a defendant acted with malice. While the courts do consider whether the shooter
believed the firearm to be loaded, that is one of several factors. None of the sources cited by
Herrera support the bright-line distinction he suggests. Therefore, even assuming arguendo that
Herrera believed the firearm to be unloaded, an examination of his specific conduct is necessary
to determine whether there was substantial evidence to support a finding of malice.
       Herrera further argues that to allow one to be convicted of murder while believing the
firearm to be unloaded would nullify a portion of the involuntary manslaughter provision. In
relevant part, that section provides that involuntary manslaughter is the non-malicious “unlawful
killing of a human being . . . in the operation of any firearm or deadly weapon in a reckless,
careless or negligent manner.” I.C. § 18-4006(2). Although involuntary manslaughter includes
some killings that result from reckless operation of a firearm, when the degree of recklessness
rises to the level of a disregard for human life, the killing rises to the level of murder. LaFave’s
treatise on criminal law is helpful in a further explanation of this concept, and we have made use
of that source a number of times in discussing malice. See, e.g. Lankford, 116 Idaho at 866−67,
781 P.2d at 203−204; State v. Enno, 119 Idaho 392, 404, 807 P.2d 610, 622 (1991).
       LaFave explains the conduct required for depraved heart murder by a comparison to
various lesser degrees of risk. 2 Wayne R. LaFave, Substantive Criminal Law § 14.4(a) (2d ed.).
Conduct that creates an “unreasonable risk” of injury is “ordinary negligence.” Id. Conduct that
creates a “high degree of risk” is “gross negligence.” Id. If the person creating that risk realizes
the risk, the conduct is “reckless.” Id. Grossly negligent or ordinary reckless conduct that results
in death may serve as a basis for manslaughter but is insufficient for murder. Id. For depraved
heart murder there must be a “very high degree” of risk, which is something quite substantial, but
is “something far less than certainty or substantial certainty.” Id. (footnote omitted). The
difference between these risks is one of degree, and there is no exact boundary between each
category. Id. However, it is not the degree of risk in the abstract that matters to the
determination; in other words, it is not the mathematical probability of harm that shows the
degree or risk. Id. Instead, it is evaluated by “what the defendant should realize to be the degree
of risk, in the light of the surrounding circumstances which he knows.” Id.



                                                 5
       In assessing the category of risk, the social utility of the conduct should also be
considered. Id. For example, one speeding through crowded streets in a reckless manner in order
to rush an injured passenger to the hospital for emergency treatment may create a very high
probability that someone will be killed. Id. But that high probability should be considered in light
of the social utility of trying to save the passenger. Id. Therefore, the degree of risk in that
situation might only rise to the level required for manslaughter. Id. That example is in contrast
with a Texas case where a defendant fired two bullets into the side of the caboose of a passing
train. Id. (citing Banks v. State, 211 S.W. 217 (Tex. Crim. 1919)). Under the circumstances of
that case, it was more likely that someone would not be killed than that someone would be. Id.
When considering the area of the inside of the caboose filled by vital organs of its human
occupants, perhaps there was no more than a five percent chance that one would be killed by this
conduct. Id. The probability of death in the shooting case might be far less than that of the
driving example. However, “[i]n view of the lack of social utility in shooting into the side of the
caboose, the risk of 5% was held enough for murder in that case.” Id.
       These types of reckless conduct that create a very high degree of risk and include little or
no social utility amount to a disregard for human life sufficient to constitute malice and should,
therefore, be punishable as murder when the conduct results in death. Reckless conduct creating
lesser degrees of risk or perhaps including a higher degree of social utility do not show malice
and should, therefore, be punishable by manslaughter when the conduct results in death. Though
there is not a clear-cut distinction between these types of conduct, it is clear that I.C. § 18-4006’s
categorization of the reckless operation of a firearm as involuntary manslaughter will not be
nullified by allowing a finding of malice where the shooter’s reckless conduct amounts to such a
high degree of risk that it is essentially a disregard for human life.
       The State presented evidence in this case that: (1) Herrera was in possession of the gun
when it discharged; (2) the gun was held to Stefanie’s forehead at the moment it discharged; (3)
the gun could not discharge without the trigger being pulled; (4) Herrera was at least partially
under the influence of drugs at the time of the shooting; (5) Herrera and Stefanie were arguing in
the moments leading up to the shooting; and (6) Herrera had experience in shooting guns. Given
such circumstances, the question of second degree murder was properly submitted to the jury.
Furthermore, this evidence was sufficient to support the jury’s verdict, with or without the
objectionable evidence identified in Section III.B.



                                                   6
B.     Testimony elicited at trial unfairly prejudiced Herrera.
          For questions of admissibility of evidence, the Court employs a mixed standard of
 review: “First, whether the evidence is relevant is a matter of law that is subject to free review.
 Second, we review the district court’s determination of whether the probative value of the
 evidence outweighs its prejudicial effect for an abuse of discretion.” State v. Shackelford, 150
 Idaho 355, 363, 247 P.3d 582, 590 (2010) (internal citation omitted). Abuse-of-discretion review
 requires an examination of “(1) whether the court correctly perceived the issue as one of
 discretion; (2) whether the court acted within the outer boundaries of its discretion and
 consistently within the applicable legal standards; and (3) whether the court reached its decision
 by an exercise of reason.” Id. Should the Court find error in the evidentiary rulings of the district
 court, we must then determine whether such error was “harmless.” State v. Moses, 156 Idaho
 855, 867, 332 P.3d 767, 779 (2014).
          Herrera argues four witnesses at trial provided inappropriate testimony concerning his
 alleged prior acts and hearsay statements allegedly made by Stefanie in the weeks leading up to
 her death.2 He argues that the majority of this testimony was irrelevant and that the prejudicial
 effect substantially outweighed any minimal probative value there may have been. The State
 responds that Stefanie’s statements were relevant to show she was unhappy in her relationship
 with Herrera and intended to end it. It further responds that any risk of unfair prejudice to
 Herrera was alleviated by the district court’s limiting instructions. We agree with Herrera.
          “Hearsay” is an out-of-court statement “offered in evidence to prove the truth of the
 matter asserted.” I.R.E. 801(c); State v. Trevino, 132 Idaho 888, 894, 980 P.2d 552, 558 (1999).
 Hearsay evidence is generally inadmissible except as provided in the Idaho Rules of Evidence or
 other rules promulgated by the Court. I.R.E. 802. There are several exceptions to the general rule

 2
   We refer to these statements as “hearsay statements” because the district court stated both at the hearing on the
 admissibility of evidence and at trial that it was admitting the statements under I.R.E. 803(3), which provides for the
 admission of hearsay statements of the declarant’s then-existing state of mind. However, the district court also
 specifically instructed the jury that the statements were not to be considered for the truth of any matters asserted
 therein, which seems to take the statements outside the scope of the definition of “hearsay.” We recently reiterated
 in State v. Abdullah that statements circumstantially showing a declarant’s state of mind, but not stating it, may be
 admissible for a non-hearsay purpose, in which case, an analysis under the hearsay rules need not be undertaken.
 158 Idaho 386, 437, 348 P.3d 1, 52 (2015). We further stated that “[s]ince the declaration is admissible in either
 event, it seems of no practical importance to determine in a given instance whether the declaration offered to show
 the declarant’s existing state of mind is technically hearsay or non-hearsay.” Id. (quoting State v. Radabaugh, 93
 Idaho 727, 731, 471 P.2d 582, 586 (1970)). Therefore, we do not rule on the issue of whether these challenged
 statements amount to hearsay statements or not. Additionally, although we also refer to the statements as “state-of-
 mind evidence,” as explained below, the statements actually have quite a tenuous relationship to the declarant’s state
 of mind.


                                                           7
against hearsay. See I.R.E. 803. One such exception is: “A statement of the declarant’s then
existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health), but not including a statement of memory or
belief to prove the fact remembered or believed.” I.R.E. 803(3).
       Statements of the declarant’s state of mind “may be admitted only after a determination
that (1) the declaration is relevant, and (2) the need for and value of such testimony outweighs
the possibility of prejudice to the defendant.” Shackelford, 150 Idaho at 364, 247 P.3d at 591.
There are four well-defined categories under which a homicide-victim-declarant’s state of mind
is relevant due to the legal theories presented in the case, such as where the defendant argues: (1)
he or she acted in self-defense, (2) the victim committed suicide, (3) the killing was accidental,
or (4) there is a specific mens rea in issue. Id. However, even where the evidence falls into one
of these categories, the court must balance the relevance of such evidence against its possible
prejudicial effect. State v. Goodrich, 97 Idaho 472, 477, 477 n. 7, 546 P.2d 1180, 1185, 1185 n. 7
(1976) (noting the four categories under which the state-of-mind evidence is generally accepted
as relevant, but going on to say “[a]s with the admissibility of any piece of evidence, where the
probative value of the statement is substantially outweighed by the danger of unfair prejudice to
the defendant, this evidence should be excluded.”); I.R.E. 403. The four categories relate
primarily to relevancy and do not negate the need for an I.R.E. 403 balancing test. Goodrich, 97
Idaho at 477, 546 P.2d at 1185.
       Prior to trial, the district court held a hearing to address the admissibility of certain
evidence, including the testimony of Kaytlin Comack, Eunice McEwen, Bobbie Jo Riddle, and
Susie Comack. Following that hearing, the court ordered among other things that (1) the
testimony of these four witnesses as to statements made by Stefanie was admissible under I.R.E.
803(3) only as it bore upon Stefanie’s mental condition at the time she made the statements, and
(2) any testimony regarding bruises seen on Stefanie was excluded under I.R.E. 403. Specifically
regarding Riddle’s testimony, the court also ruled at the hearing that she would not be permitted
to testify regarding fights between Stefanie and Herrera. At trial, the State offered testimony
from each witness purporting to show Stefanie’s state of mind concerning her relationship with
Herrera.
       Kaytlin Comack, Stefanie’s sister, provided testimonial foundation for a series of
Facebook messages sent between her and Stefanie the night before the shooting. Those messages



                                                 8
were entered into evidence and provided:
       Stefanie Comack: Kayt, i feel like a shitty sister. I’m sorry about all those things
       i said to you when you were having Trenton. I should have been there. I couldn’t
       get D.J. or Trenton anything for Christmas and i feel like shit about it. I couldn’t
       get anyone anything.
       Kaytlin Comack: I’m on moms phone and it will only let me read the first line
       but just so you know I love you and I’m sorry too I just wanted u at the hospital
       and I want you back as my sister I miss you sooo much and joes an ass bugs
       YOUR SO BEAUTIFUL don’t let him bring you down
       Stefanie Comack: Thanks but it’s ok i know i’m not pretty and it doesn’t bother
       me anymore. Please don’t tell any1 it does embarras me thAt even my boyfriend
       thinks that. I’m starting to realize he doesn’t care. Y are people so mean. I hate
       myself so much i Don get out of bed 4hrs after i wake up. Plz dont tell any1
       anythin ive said 2 u. Itl just embarras me. Im starting to Realize he really doesn’t
       care. I thought i’d be alot more sad about it but i think i might hate him to much to
       be sad.
       Kaytlin Comack: hes a loser dude and you dont need to listen to him you really
       are pretty. when are you coming down here were all already here do you want to
       come stay the night tonight? itll be just me u dj n Trenton. dont hate yourself you
       have way to much going for ;you i love you bug and you have to quit with he
       throwing up because you are getting waaay skinny and youve always been perfect
       bugs. we miss you and joes just mean if hes going to treat you the way he does he
       doesnt deserve you everyone agrees i know it seems like were always on your shit
       but its just because were all worried about you and love you.
The State also asked Kaytlin whether Stefanie spoke to her in the weeks leading up to the
shooting about Stefanie’s relationship with Herrera. When the State inquired as to when these
conversations occurred, Kaytlin answered that the conversations occurred around Thanksgiving,
when Stefanie arrived at dinner with handprint-shaped bruises. She then repeated this testimony
when the State stated that it had not heard Kaytlin’s response. Following a discussion with the
attorneys and the denial of a motion for mistrial by Herrera, the court instructed the jury to
disregard Kaytlin’s statements regarding bruises.
       The Facebook messages, for which Kaytlin provided testimonial foundation, do contain
statements of Stefanie’s state of mind the night before the shooting. She stated she felt like
Herrera did not care about her and she felt like she might hate him. These messages also contain
disparaging remarks about Herrera, such as referring to him as “an ass,” “a loser,” and as being
mean to Stefanie. While these messages do not paint Herrera in a flattering light, they do not
alone create unfair prejudice to Herrera, and they may have some probative value on the question
of Stefanie’s state of mind. However, although the court instructed the jury to disregard it,


                                                9
Kaytlin also testified in the presence of the jury about bruises on Stefanie. The court noted the
prosecutor did not appear to intentionally elicit any testimony about the bruises, and that there
was no direct connection in the testimony to link Herrera to the bruising. However, the logical
inference would be to connect the subject matter of the question asked with the subject matter of
the answer. Kaytlin was asked about when a conversation occurred between Stefanie and her
regarding Stefanie’s relationship with Herrera. In response, Kaytlin brought up handprint-shaped
bruises on Stefanie. Given that Kaytlin mentioned the bruises in response to a question about
Herrera’s and Stefanie’s relationship, the jury would most likely conclude that the bruising was
caused in connection with that relationship. The court specifically ruled at the hearing on the
motion in limine that no testimony regarding bruising would be permitted or admitted because its
prejudicial effect substantially outweighed any probative value that could come from such
testimony. We agree that testimony suggesting Herrera was abusive is highly prejudicial.
       Stefanie’s friend, Eunice McEwen, testified that approximately one week before Stefanie
was killed, they had a conversation during which Stefanie told Eunice about an event that had
transpired between her and Herrera. Eunice testified, “[Stefanie] said that her and [Herrera] got
into a fight and he hit her head against the shifter and choked her and put a gun to her head and
said that, if she didn’t shut up, that he was going to shoot her.” Eunice further stated, “[Stefanie]
said that she broke up with [Herrera] and that he yelled at her before and stuff like that.” This
testimony was allowed by the court with a limiting instruction that it was only to be considered
to evidence Stefanie’s state of mind.
       Eunice’s testimony did not contain any statements of Stefanie’s state of mind, and it was
highly prejudicial to Herrera. Although the State argues it called these witnesses to evidence
Stefanie’s state of mind, it did not ask Eunice questions directed toward that end, instead asking
whether Stefanie told Eunice “about some event that had transpired with Joe Herrera.” This
focus on the event of Herrera’s alleged threat suggests the State desired to do exactly what is
proscribed by rule 803(3), relay a statement of Stefanie’s memory of an event in order to prove
the fact remembered. Indeed, Stefanie telling Eunice about the threat could not show Stefanie’s
state of mind (e.g., fear of Herrera because of the threat) unless the jury accepted the event as
true. Eunice also testified that Stefanie broke up with Herrera, which supports the State’s theory
that Stefanie desired to end the relationship. However, there were other witnesses who could
have helped establish this desire in a much less prejudicial way. Allowing testimony about an



                                                 10
event so similar to the State’s version of the facts makes it especially likely that the jury would
not be able to make a decision on Herrera’s state of mind at the time of the shooting without
considering the testimony about him having intentionally threatened to shoot Stefanie in the past.
       Stefanie’s father’s girlfriend, Bobbie Jo Riddle, testified that Stefanie told her in
December 2011 that Stefanie was having trouble breaking up with Herrera because each time she
did so Herrera threatened to kill himself. The State followed up with the following exchange:
       The State:   Okay. And what did she tell you about why she was leaving him?
       Riddle:      Well, she said that he sometimes got mean and she—
       The State:   Let me ask you something specifically. Did she talk about Joe
                    having mistreated her in any way?
       Riddle:      Yes.
       The State:   What did she say Joe had done to her?
       Riddle:      He slapped her around and choked her.
Following a discussion with the attorneys, the court instructed the jury to disregard Riddle’s
statements about slapping and choking.
       At the pre-trial hearing, the court heard what the State intended to have Riddle testify to.
It ruled she would be permitted to testify as to Stefanie’s statements that Herrera threatened to
kill himself when Stefanie tried to break up with him, but she would not be permitted to provide
the rest of her offered testimony about fights and abuse. The State knew Riddle had previously
testified that Herrera was abusive to Stefanie, and it also knew that such testimony was
specifically excluded. Despite this knowledge, the State asked Riddle whether Stefanie had said
Herrera mistreated her and what she said he had done to mistreat her. While Herrera has not
raised the issue of prosecutorial misconduct in connection with this line of questioning, it
appears obvious to this Court that the State’s questions were specifically designed to elicit
testimony regarding those matters the trial court had previously ruled inadmissible. Not only was
the questioning inappropriate under the circumstances, the testimony does not go to evidence
Stefanie’s state of mind other than to show that she may have desired to break up with Herrera at
some point.
       Stefanie’s mother, Susie Comack, testified about a conversation with Stefanie two weeks
before the shooting. Susie testified that Stefanie told her Herrera had broken Stefanie’s phone
because Stefanie wanted to call Susie to ask for a ride home. Susie further testified that in the
first couple weeks of December 2011, Stefanie asked to borrow her car to go see Herrera because


                                                11
he had threatened to kill himself. Finally, Susie testified that on the night before the shooting,
Susie told Stefanie “that this was no way to live, that she did not need to live like this.” Susie
testified that Stefanie responded, “Mom, you don’t understand. He’s psycho.” The only
statement of Stefanie’s state of mind included in Susie’s testimony is that Stefanie thought
Herrera was “psycho.” This statement has minimal probative value to show Stefanie intended to
end the relationship as the State claimed. The balance of Susie’s testimony regarding Stefanie’s
statements consisted of statements of memory that do not show Stefanie’s state of mind.
       Normally, the Court would at this point consider whether the district judge erred in
admitting the state of mind evidence and, if so, whether or not the error was harmless. Moses,
156 Idaho at 867, 332 P.3d at 779. However, under the particular circumstances of this case, we
need not pursue that course of action. It appears from the record that the majority of the State’s
asserted state of mind evidence was simply an attempt to present to the jury Herrera’s alleged
past conduct. We agree with the California Supreme Court that,
       [State of mind] testimony is not admissible if it refers solely to alleged past
       conduct on the part of the accused. This is so because to try and separate state of
       mind from the truth of the charges is an almost impossible task. The serious
       prejudice from such evidence is obvious. When the declarations are of such a
       nature as to be obviously prejudicial, and where any possible proper benefit to the
       prosecution is far outweighed by its prejudicial effect to the accused, such
       evidence should be excluded.
People v. Hamilton, 362 P.2d 473, 480 (Cal. 1961) (rev’d on other grounds). It is difficult to see
how the testimony purported to be offered as bearing on Stefanie’s state of mind could have
fulfilled that purpose. Rather, it appears to have been intended to show previous bad acts of
Herrera.
       Even more concerning is the rather transparent violation of the limitations imposed by the
district court on the testimony of these witnesses. The order specifically excluded testimony
regarding Herrera’s prior bad acts, which shed little light on the charges he was facing, but which
held great potential to increase the likelihood of a conviction. Despite the court’s order, the State
asked questions that appeared to be deliberately designed to elicit the exact testimony that the
district court had specifically prohibited. A party’s deliberate violation of an order excluding
evidence with little relevance but with great potential for prejudice is an attack on the fairness of
the proceeding and cannot be countenanced. Thus, in order to address the violation of the court’s
order, and even in light of other evidence supporting the conviction, we find it appropriate in the



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particular circumstances presented by this case to find that Herrera was denied the opportunity of
a fair trial. The judgment of conviction must therefore be vacated.
                                               IV.
                                        CONCLUSION
       We vacate the judgment of conviction. The case is remanded for further proceedings
consistent with this opinion.
       JUSTICES EISMANN, BURDICK, W. JONES and HORTON CONCUR.




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