                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 42572

STATE OF IDAHO,                                   ) 2016 Opinion No. 15
                                                  )
          Plaintiff-Respondent,                   ) Filed: February 25, 2016
                                                  )
v.                                                ) Stephen W. Kenyon, Clerk
                                                  )
CONNER BLAINE HOY,                                )
                                                  )
          Defendant-Appellant.                    )
                                                  )

          Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
          County. Hon. Steven J. Hippler, District Judge.

          Judgment of conviction for robbery and aggravated assault with a deadly weapon,
          affirmed.

          Sara B. Thomas, State Appellate Public Defender; Kimberly E. Smith, Deputy
          Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
          General, Boise, for respondent.
                    ________________________________________________

MELANSON, Chief Judge
          Connor Blaine Hoy appeals from his judgment of conviction for robbery and aggravated
assault with a deadly weapon.        Specifically, Hoy alleges that the district court abused its
discretion in allowing the state to cross-examine Hoy about a prior felony conviction for leaving
the scene of an accident and his probation for that offense. For the reasons set forth below, we
affirm.
          Hoy drove to a supermarket, parked his car, and went inside. The victim in this case
claimed Hoy ran a red light prior to turning into the parking lot, nearly causing an accident with
a vehicle in which there were children. While shopping in the store, the victim saw Hoy and
confronted him, asking, “Are you crazy or something? Are you trying to kill yourself or
someone else?” Hoy yelled at the victim and said that he and the victim should go outside to

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fight. Hoy left the store and, when the victim left about twenty minutes later, Hoy approached
him and attempted to provoke a fight with the victim. The victim said Hoy then took a knife
from his pocket and held it with the blade open. The victim got into his truck and drove away.
The victim said he drove home and was parked in front of his house when Hoy approached the
victim and opened his truck’s door. The victim said that Hoy took the victim’s hat and mail
from the truck and asked him to fight again. The victim went inside his house and waited until
Hoy was gone. The victim said that, when he went outside, his hat and mail were gone and one
of the tires of his truck was flat from what appeared to be a “slash” in the sidewall of the tire.
The victim reported the incident to police.
       Hoy was charged with robbery (I.C. § 18-6501) and aggravated assault with a deadly
weapon (I.C. §§ 18-901(b), 18-905(a), and 19-2520).1 At trial before a jury, Hoy elected to
testify on his own behalf. Prior to his testimony, Hoy anticipated that the state would seek to
impeach Hoy’s testimony with a prior felony conviction for leaving the scene of an accident.
Hoy argued (by way of what was, essentially, a motion in limine) that the prior conviction was
not relevant and that the evidentiary value was substantially outweighed by unfair prejudice.
The district court ruled:
       [O]bviously, the ruling that I make now is contingent upon the testimony that
       comes in in terms of opening any doors, for example, but I would tend to agree
       with the defense that the fact that he’s on probation and that that could create
       some motivation for him to generally not admit to criminal acts because it could
       also result in a probation violation, that in and of itself I think the prejudice of that
       substantially outweighs the probative value.
               ....




1
        Hoy was also charged with malicious injury to property and petit theft, which are not at
issue on appeal.



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               . . . I’m going to find that [I.R.E. 4032] will trump. And this is really sort
       of a disguised [I.R.E. 6093] motion in some respects, and likewise under that rule
       it wouldn’t be admissible. Again, certainly [Hoy] can open the door, depending
       upon how he testifies, to some of these issues.

       Hoy testified, making two statements that the district court held opened the door to
cross-examination about his prior conviction and resulting probation. Hoy told an officer that he
did not tell the victim that he would “meet him outside” of the store. However, on direct
examination, Hoy testified that he did tell the victim he would “meet him outside” and that Hoy
was attempting to provoke a fight with the victim. On direct examination, Hoy attempted to
explain the discrepancy between his testimony and his statement to the officer. The following
exchange took place between Hoy and his attorney:
       Q.     Do you recall telling him that you were going to meet him outside?
       A.     I do.
       Q.     Now, we heard the tape with [the officer]. Did you hear that tape as well?
       A.     Yes, ma’am.
       Q.     And [the officer] asked you if you said I’m going to meet you outside?
       A.     Yes, ma’am.



2
        Idaho Rule of Evidence 403 provides:
               Although relevant, evidence may be excluded if its probative value is
       substantially outweighed by the danger of unfair prejudice, confusion of the
       issues, or misleading the jury, or by considerations of undue delay, waste of time,
       or needless presentation of cumulative evidence.
3
       Idaho Rule of Evidence 609(a) provides:
               For the purposes of attacking a witness’s character for truthfulness,
       evidence of the fact that the witness has been convicted of a felony and the nature
       of the felony shall be admitted if elicited from the witness or established by public
       record, but only if the court determines in a hearing outside the presence of the
       jury that the fact of the prior conviction or the nature of the prior conviction, or
       both, are relevant to the witness’s character for truthfulness and that the probative
       value of admitting this evidence outweighs its prejudicial effect to the party
       offering the witness. If the evidence of the fact of a prior felony conviction, but
       not the nature of the conviction, is admitted for the purpose of impeachment of a
       party to the action or proceeding, the party shall have the option to present
       evidence of the nature of the conviction, but evidence of the circumstances of the
       conviction shall not be admissible.

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       Q.      And you told him you--either you did not say that or you don’t remember
               saying that, and I’m going to ask the jury to go with their own
               recollection, but why did you deny saying that to [the officer]?
       A.      I didn’t remember it.
       Q.      And, again, since that interview, have you been able to review police
               reports?
       A.      Absolutely. I can almost recite them to you. This is the definitely the
               biggest incident in my life. Yes, I’ve been very focused on this.
       Q.      So has reviewing those reports helped kind of fill in the gaps of some of
               your memory?
       A.      Yes, ma’am.

In addition, when questioned by the officer, Hoy told the officer that it was a “delicate situation”
and that “the argument with that kid” was going to “ruin” his life. On direct examination, Hoy
explained what he meant by that statement, testifying:
       Q.      When you first met with [the officer], you said--when he asked you about
               what happened at [the store], you said that this is a delicate situation.
               What did you mean by that?
       A.      I mean I knew there was laws broken.
       Q.      And when you say laws broken, do you mean that you feel like you broke
               the law?
       A.      I definitely knew I broke the law, you can’t fight people, that’s illegal.
       Q.      When you said, “I knew that argument with that kid was going to ruin my
               life,” what did you mean by that?
       A.      Having already gone the short distance I have into college, I know you
               don’t have violence on your record and go into a lab. You can’t. They’re
               not going to put a guy that when things go wrong he wants to fight in a lab
               arguing about genetics or any kind of science at all. That would waste all
               of my money, all of the time I’ve done and take a--I don’t want--it’s the
               coolest job I’ve ever had being an equipment operator, I don’t really want
               to do that all my life. I like to think.

       Based upon Hoy’s testimony, the state sought permission to question Hoy about his
felony conviction for leaving the scene of an accident and about his probation for that crime.
The state argued that Hoy opened the door to talk about his prior felony conviction because he
said, “this is the definitely the biggest incident in my life.” The state explained that it thought it
would be fair to cross-examine Hoy by asking, “Really? The other one wasn’t?” In addition, the
state argued that Hoy had opened the door to a discussion that he was on probation. When asked
what he meant when he told the officer “I knew that argument with that kid was going to ruin my



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life,” Hoy testified that his future career would be affected by having a violent crime on his
record. The state argued that his response opened the door to allow the state to inquire whether
Hoy actually meant that his life would be ruined because he was facing revocation of his
probation, which would result in incarceration.
       After considering argument from the state and defense, the district court held:
               These are always difficult calls because there clearly still remains the
       prejudice from his leaving-the-scene felony and probation in terms of the concern
       of the prejudice from those in terms of the potential for the jury using that solely
       as their basis to convict.
               I am concerned--it struck me immediately when [Hoy] testified, before
       [the prosecutor] brought these issues up when he was talking about the biggest
       incident in my life, my sort of nonverbal reaction to myself was “uh-oh.” The
       problem with it is it was brought up in a way to bolster his credibility and
       testimony today.
               The second issue that sort of caused me to go “uh-oh” was when [Hoy]
       explained the consequences to him of why this was such--I can’t remember
       exactly--such a big event in the sense of they don’t hire people who have been
       violent in their labs and that is why he was concerned or the fight broke up, or
       whatever it was. I can’t remember exactly how it came up, that’s what I was
       looking for.
               But I recall being struck by that because we had even talked about here the
       fact that he certainly has the motivation in this case to potentially not tell the truth
       because of the consequences from this case, which is the convictions in this case.
       And yet he’s telling the jury, I think potentially in a way to sort of get them to
       sympathize or empathize with him, that it could ruin his chosen profession. And I
       think he has opened the door to the fact that he had a prior event that was of
       significance involving leaving the scene of the accident and he’s on probation for
       that and can be punished for that as a result of this conduct as well as whatever
       the penalty is for this conduct.
               I think he’s opened the door to that, and I think it’s fair to cross-examine
       him on that. And I will give a limiting instruction at some point about how the
       jury can use that in terms of assessing his credibility and to--more importantly to
       assess the credibility of the story that he’s telling now with respect to those two
       things.

       Hoy alleges that the district court erred in ruling that he opened the door to discussing his
prior felony conviction and his probation at the time. A trial court’s decision about whether to
admit or exclude evidence is reviewed for an abuse of discretion. State v. Thompson, 132 Idaho
628, 634, 977 P.2d 890, 896 (1999). When a trial court’s discretionary decision is reviewed on
appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower

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court correctly perceived the issue as one of discretion; (2) whether the lower court acted within
the boundaries of such discretion and consistently with any legal standards applicable to the
specific choices before it; and (3) whether the lower court reached its decision by an exercise of
reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
       In this case, there is no dispute regarding whether the district court correctly perceived
the issue as one of discretion or whether the lower court acted within the bounds of the legal
standards set forth in Rules 403 and 609. The sole issue here is whether the district court
reached its decision to allow the state to cross-examine Hoy about his prior felony and resulting
probation, based upon Hoy opening the door, by an exercise of reason.
       The district court held that Hoy’s comment that “this is the definitely the biggest incident
in my life,” when viewed in context, was intended to bolster his credibility--specifically, the
accuracy of his recollection of the police reports. We agree. In context, Hoy’s comment was an
attempt to bolster the accuracy of his testimony regarding whether he was familiar with the
police reports. This is particularly clear by looking at the sentence immediately preceding, in
which Hoy said, “I can almost recite them to you,” implying that he was so familiar with the case
that he had the pertinent evidence memorized. Continuing, Hoy explained that the reason he had
spent so much time becoming so familiar--to the point he could recite the relevant evidence--was
that this event was the “biggest incident in [Hoy’s] life.” However, Hoy’s recollection and
overall credibility would be undermined if the state could show that there had been another event
in Hoy’s life that might be considered the “biggest,” such as a felony conviction for leaving the
scene of an accident. Thus, the district court reached its decision to allow the state to use Hoy’s
prior conviction to impeach his testimony by an exercise of reason.
       The district court also held that Hoy’s testimony, explaining the meaning of his comment
to the officer that “I knew that argument with that kid was going to ruin my life,” opened the
door to using Hoy’s probation status to impeach his testimony. Hoy testified that the way in
which the event would “ruin” his life was that his future career would be affected by being
charged with a violent crime. However, in context, it appears, as the district court found, that
Hoy was attempting to garner sympathy or empathy from the jury and also implied that the
extent of the impact was that his education or financial situation would be affected by the
incident. We agree that Hoy opened the door to cross-examination regarding the breadth of the


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impact--specifically, that he was on probation and that he was facing revocation of his probation,
in addition to punishment for the crimes. Accordingly, the district court reached its decision to
allow the state to use Hoy’s probation status to impeach Hoy’s testimony.
       Hoy has not shown that the district court abused its discretion in allowing the state to
cross-examine Hoy about his prior felony conviction for leaving the scene of an accident and
about his probation for that offense because Hoy opened the door to such questioning.
Therefore, Hoy’s judgment of conviction for robbery and aggravated assault with a deadly
weapon is affirmed.
       Judge GUTIERREZ and Judge HUSKEY, CONCUR.




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