               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 46749

STATE OF IDAHO,                                  )
                                                 )    Filed: August 13, 2020
       Plaintiff-Respondent,                     )
                                                 )    Melanie Gagnepain, Clerk
v.                                               )
                                                 )    THIS IS AN UNPUBLISHED
BOB LESTER BOREN,                                )    OPINION AND SHALL NOT
                                                 )    BE CITED AS AUTHORITY
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Cheri C. Copsey, District Judge.

       Judgment of conviction for domestic battery, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kacey L. Jones, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Bob Lester Boren appeals from the judgment of conviction for domestic battery. Boren
argues that the district court erred in excluding certain evidence. For the reasons set forth below,
we affirm.
                                                 I.
                       FACTS AND PROCEDURAL BACKGROUND
       Boren was charged with attempted strangulation, Idaho Code § 18-923, and domestic
battery, I.C. §§ 18-918(3)(b), 18-903(a), for an incident that occurred with his ex-wife, Kim
Paddock. Boren’s case proceeded to a jury trial. At trial, the jury heard testimony that Boren
and Paddock had been married for seven years before obtaining a divorce. In 2015, years after
the divorce, Paddock moved in with Boren. In doing so, Paddock brought all of her personal
belongings which included multiple vehicles. In 2017, the two separated and Paddock moved


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out of Boren’s home leaving a majority of her belongings behind. Paddock tried to recover her
property several times but her attempts were mostly unsuccessful.             Consequently, Paddock
initiated a civil law suit against Boren in order to get her property back.
       On May 29, 2018, Paddock and Louis Boren (Bucky), Paddock and Boren’s adult son,
went to Boren’s house. When they arrived, Paddock went into the backyard to look for Boren in
the shop and later located him on the back porch of the house. The testimony regarding the
events that followed differed amongst Paddock, Bucky, and Boren. Paddock testified that she
spoke with Boren for a while on the back porch and the two walked into the kitchen together.
Thereafter, Paddock testified that she “looked around and said [she] was glad that a lot of [her]
stuff was still there and asked [Boren] where was the ‘76 El Camino and then he just screamed
and grabbed [her] by the throat.” Paddock explained that Boren put both hands around her neck
with his thumbs in her tracheotomy scar and she lost consciousness. She testified that when she
came to, she saw Bucky hitting Boren trying to stop Boren from strangling her.
       Bucky testified on behalf of the State. He testified that his parents spoke to one another
as they walked to the house. As they neared the kitchen, he heard them discussing the ‘76 El
Camino. Once at the kitchen door, Boren tried to close the kitchen door before Paddock could
enter. However, Paddock put her foot between the door and the door frame so that she could
continue to talk to Boren. Then, “[t]hey started yelling and arguing about where the 76’ El
Camino was” located. Bucky testified that he saw Boren reach through the crack in the door and
put both of his hands around Paddock’s neck. At that time, Bucky testified that he jumped up
and knocked Boren off of Paddock. Thereafter, he and Paddock went to Paddock’s truck and she
called the police. Bucky testified that Paddock’s neck was unusually red, and she was coughing
from the incident.
       Boren testified on his own behalf. He testified that Paddock headed toward his house and
he hurried past her to beat her to the door. Boren explained that he got to the house and tried to
close the door behind him but Paddock put her foot in the door. Boren testified that Paddock
was not talking and that he repeatedly told Paddock that she was trespassing and she needed to
leave. However, Paddock kept trying to come inside. After three to five minutes of repeating
himself, Boren testified that the door slammed open knocking him on the floor and Bucky ran in
and began punching him in the head. Boren denied strangling or battering Paddock.



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       The evidence showed that after the incident Paddock called police and reported that
Boren had choked her. Shortly thereafter, Boren called police and reported that he was assaulted
in his home. Police arrived, took photographs of Paddock’s neck, and Boren was arrested.
Before putting on his case, Boren made an offer of proof regarding evidence that he sought to
elicit from his sister, Irene Falls. Boren argued the evidence, which consisted of events that
allegedly occurred in June 2018, showed that Paddock had a motive to get Boren arrested so that
she could steal Boren’s belongings. The State objected to admission of the proffered evidence.
Ultimately, the district court excluded the evidence under Idaho Rule of Evidence 403
concluding that the probative value was substantially outweighed by the danger of unfair
prejudice, confusing the issues, misleading the jury, undue delay, and waste of time. Boren did
not call Irene to testify. At the conclusion of the trial, the jury acquitted Boren of attempted
strangulation but found him guilty of domestic battery. The district court sentenced Boren to 180
days in jail, gave him credit for time served, suspended the remainder of his sentence, and placed
him on supervised probation for a period of two years. Boren timely appeals.
                                                II.
                                           ANALYSIS
       Boren argues that (1) the district court abused its discretion by failing to allow him to
present evidence of Paddock’s motive under I.R.E. 403; and (2) the error was not harmless. In
relation to his claim of error, Boren contends that the district court erred by failing to allow him
to present evidence, through examination of his sister Irene, that Paddock’s motive was to get
Boren arrested so that she could take his property.
       As set forth above, Boren made an offer of proof before putting on his case regarding
testimony that he sought to elicit from Irene. Boren explained that Irene would testify to the
following events: Irene and her husband changed the locks on Boren’s home after he was
arrested because someone broke into Boren’s home. Two to three weeks after Boren was
arrested, the couple went back to check on Boren’s home. When doing so, they encountered
Paddock and Bucky loading Boren’s motorcycle into a truck. Irene’s husband called the police.
When the police arrived, they spoke with Paddock and made Paddock and Bucky unload the
motorcycle. Finally, while officers were talking to Paddock, Irene overheard Paddock state that
she “thought the house was abandoned.”



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       In making his offer of proof, Boren explained that he sought to introduce this evidence
“for motive to show that Kim Paddock wanted [Boren] arrested so she could take property that
was not hers, that was [Boren’s]” and to show Paddock’s “false statement . . . that she thought
the house was abandoned.” The State objected to introduction of the evidence. After concluding
the evidence was relevant, the district court excluded the evidence stating:
       [T]his is a pure [Idaho Rule of Evidence] 403 analysis . . . . If the evidence that
       was going to be introduced was that she and her son returned that afternoon or the
       next morning or even that weekend, I might consider that evidence of motive. In
       this case, though, it is so remote to the incident, three weeks, and it now is taking
       us off into a mini trial. . . . [B]ut the probative value here is substantially
       outweighed by the danger not just of unfair prejudice to the State, who’s now
       going to have to completely redo this trial with a new--new trial within a trial, but
       it confuses the issues and misleads the jury.
                It also [] creates an undue delay and a waste of time. So I’m excluding
       any evidence related to whatever is alleged to have happened in three weeks after
       this incident. I just think it’s so remote in time. . . . And so, to the extent this
       goes towards motive--and I find it doesn’t really go to motive very much.
                The things you’re going to have to look at. You’re going to have to look
       at all the police reports. You’re going to have to look at whether the motorbike
       was owned by her or whether it was part of the divorce settlement or the divorce
       decree. We don’t have any of those things. We are not going to have a trial
       within a trial.
The trial proceeded and Boren did not call Irene to testify.
       On appeal, Boren argues that I.R.E. 403 does not preclude admission of the proffered
evidence because it was evidence of Paddock’s bias and motive to lie which made the evidence
highly probative and relevant.       In addition, Boren argues the probative value was not
substantially outweighed by the I.R.E. 403 dangers. Specifically, Boren contends that because
the stories of Boren, Bucky, and Paddock varied, credibility was a central factor in the case and it
would not have unduly delayed the trial for Boren to testify that he owned the motorcycle. In
support of his argument that presentation of the evidence would not cause undue delay, Boren
points to the fact that the district court “permitted Ms. Paddock to testify on her ownership of and
title to the El Camino.” Thus, “[i]t would not have unduly delayed the trial for the parties to
offer similar testimonial evidence on who owned the motorcycle.” In response, the State argues
that the district court properly weighed the probative value of the evidence and determined that it




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was substantially outweighed by the danger of unfair prejudice, confusion of the issues,
misleading the jury, undue delay, and waste of time. 1 We agree with the State.
       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 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 when it excluded evidence
that Paddock allegedly sought to steal Boren’s motorcycle three weeks after the crime to show
Paddock’s motive for reporting the battery to law enforcement.           First, the district court
determined that the evidence in question had low probative value primarily due to the fact that
the proffered evidence occurred three weeks after the events leading to Boren’s charges. We
agree. The events leading to Boren’s charges occurred May 28, 2018, and the proffered evidence
allegedly occurred on June 18, 2018. Essentially, Boren sought to use the proffered evidence to
show that Paddock and Bucky staged the crime against Boren in order to get Boren arrested so
that she could go to his home when he was not present and steal his motorcycle. However, the
nature of the proffered evidence and its proximity to the events leading to Boren’s charges make
Boren’s claim that the evidence shows Paddock’s motive to have him arrested unlikely. The
evidence Boren sought to introduce to show Paddock’s motive was tenuous. As such, the
evidence does little to show Paddock’s motive and has a low probative value.




1
       Boren offered the evidence to show Paddock’s motive under Idaho Rule of Evidence
404(b)(2), and the district court concluded that the evidence was relevant under I.R.E. 402.
However, the only rule of evidence at issue in this appeal is I.R.E. 403.
                                                5
       Second, the district court concluded that introduction of the evidence presented a danger
of unfair prejudice, confusion of the issues, misleading the jury, undue delay, and was a waste of
time. We agree. Admission of the evidence would have been highly prejudicial to the State.
The State would have been unable to rebut the proffered evidence because, as the district court
found, the State “knew nothing about” the proffered evidence before Boren discussed it while
making his offer of proof. The State had already presented its case and did not have an
opportunity to question Paddock about the events. In addition, the State did not review the
police report from the June 18 incident, speak with Irene prior to trial, or call the responding
officers to testify. If the court allowed Boren to present his proffered evidence, Boren would
have had to present and establish the many facts surrounding the event and the State would have
been required, but unable, to rebut Boren’s evidence.
       Although Boren argues that by presenting evidence that he owned the motorcycle would
not cause undue delay because the court permitted the State to present evidence that Paddock
owned the El Camino, the ownership of the El Camino was directly related to the crimes at issue.
Ultimately, the jury was tasked with determining whether Boren battered or attempted to strangle
Paddock. Presentation of the proffered evidence and the State’s rebuttal would, as the district
court explained, cause a “mini trial” about an issue with little probative value and would confuse
the issues, mislead the jury, cause undue delay, and waste time. The district court properly
weighed the probative value against the dangers discussed above and concluded that the
probative value was substantially outweighed by those dangers. We cannot say that the district
court abused its discretion by excluding evidence of Paddock’s alleged theft to show that
Paddock had a motive to get Boren arrested. Thus, we need not consider the parties harmless
error arguments.
                                                III.
                                         CONCLUSION
       Boren has failed to show that the district court abused its discretion by excluding evidence of
Paddock’s alleged theft under I.R.E. 403. Accordingly, we affirm Boren’s judgment of conviction
for domestic battery.
       Judge LORELLO and Judge BRAILSFORD CONCUR.




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