               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                  Docket Nos. 44235 & 44236

STATE OF IDAHO,                                 )   2018 Unpublished Opinion No. 411
                                                )
       Plaintiff-Respondent,                    )   Filed: April 6, 2018
                                                )
v.                                              )   Karel A. Lehrman, Clerk
                                                )
NICHOLAS JAMES LONGEE,                          )   THIS IS AN UNPUBLISHED
                                                )   OPINION AND SHALL NOT
       Defendant-Appellant.                     )   BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. Gerald F. Schroeder and Hon. G. Richard Bevan, District
       Judges.

       Judgments of conviction for burglary, grand theft by possession of stolen
       property, unlawful possession of a firearm, solicitation of grand theft by disposing
       of stolen property, and being a persistent violator, affirmed.

       Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant.            Dennis A.
       Benjamin argued.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent. Mark W. Olson argued.
                 ________________________________________________

LORELLO, Judge
       In two criminal cases that were consolidated for trial and on appeal, Nicholas James
Longee appeals from his judgments of conviction for burglary, grand theft by possession of
stolen property, unlawful possession of a firearm, solicitation of grand theft by disposing of
stolen property, and being a persistent violator. Longee asserts that the district court abused its
discretion by excluding hearsay evidence under I.R.E. 804(b)(3). For the reasons set forth
below, we affirm.




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                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In 2012, a home was burglarized and five guns, jewelry, and a pillowcase were taken
from the residence. After an investigation, Longee was charged with burglary, grand theft by
possession of stolen property, unlawful possession of a firearm, solicitation of grand theft by
disposing of stolen property, and a persistent violator sentencing enhancement which was based
upon two prior burglary convictions. At a preliminary hearing, the magistrate found that the
State failed to meet its burden of proof on the burglary charge, and Longee was bound over only
on the remaining charges. Longee was found guilty of the remaining charges. On appeal, this
Court, in an unpublished opinion, affirmed the judgments of conviction but remanded the case
for resentencing after concluding there was insufficient evidence to support the persistent
violator sentencing enhancement. State v. Longee, Docket 40435 (Ct. App. Feb. 14, 2014).
Longee filed for post-conviction relief and was granted a new trial. The State refiled the
burglary charge and the persistent violator allegation and they were consolidated with the
remaining charges for the new trial.
       At the first and second trials, there were competing stories presented through various
witnesses as to the events surrounding the burglary. The State’s theory of the case was that
Longee committed the burglary and then transferred the stolen property to others to sell.
Longee’s theory of the case was that O.P. and/or K.W. burglarized the home, O.P. tried to get
Longee to sell the guns, and O.P. and K.W. attempted to frame Longee for the burglary. K.W.
testified during Longee’s preliminary hearing and the first trial, but exercised his Fifth
Amendment right and refused to testify at the second trial. The parties stipulated that K.W. was
unavailable at the second trial and his testimony from the first trial and preliminary hearing was
read into evidence at the second trial. During the second trial, Longee attempted to introduce
testimony from J.W. and D.G. regarding statements reportedly made by K.W. to J.W. and D.G.
at different times. The district court sustained the State’s objections to this testimony under
I.R.E. 804(b)(3), finding a lack of sufficient corroborating circumstances.      The jury found
Longee guilty of all charges. Longee appeals.




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                                                  II.
                                    STANDARD OF REVIEW
        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 correctly perceived the
issue as one of discretion, acted within the boundaries of such discretion and consistently with
any legal standards applicable to the specific choices before it, and reached its decision by an
exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
                                                 III.
                                               ANALYSIS
        Longee argues that the district court abused its discretion when it excluded statements
reportedly made by K.W. Longee claims the statements were admissible under I.R.E. 804(b)(3)
and that the district court did not apply the correct legal standard in concluding otherwise. The
district court did not abuse its discretion.
        Hearsay is defined as a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted. I.R.E. 801(c);
State v. Gomez, 126 Idaho 700, 704, 889 P.2d 729, 733 (Ct. App. 1994). Hearsay is inadmissible
unless otherwise provided by an exception in the Idaho Rules of Evidence or other rules of the
Idaho Supreme Court. I.R.E. 802. Idaho Rule of Evidence 804(b)(3) permits the admission of
hearsay when the declarant is unavailable as a witness if it is:
                A statement which was at the time of its making so far contrary to the
        declarant’s pecuniary or proprietary interest, or so far tended to subject declarant
        to civil or criminal liability, or to render invalid a claim by declarant against
        another, that a reasonable man in declarant’s position would not have made the
        statement unless declarant believed it to be true. A statement tending to expose
        the declarant to criminal liability and offered in a criminal case is not admissible
        unless corroborating circumstances clearly indicate the trustworthiness of the
        statement.
The corroborating circumstances required by I.R.E. 804(b)(3) are necessary and must clearly
indicate the trustworthiness of the statement. State v. Meister, 148 Idaho 236, 242, 220 P.3d
1055, 1061 (2009). The Idaho Supreme Court has adopted seven factors for determining the
reliability and corroboration of a statement subject to the hearsay exception in I.R.E. 804(b)(3).
See Meister, 148 Idaho at 242, 220 P.3d at 1061. The seven factors are:



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       (1) whether the declarant is unavailable; (2) whether the statement is against the
       declarant’s interest; (3) whether corroborating circumstances exist which clearly
       indicate the trustworthiness of the exculpatory statement, taking into account
       contradictory evidence, the relationship between the declarant and the listener,
       and the relationship between the declarant and the defendant; (4) whether the
       declarant has issued the statement multiple times; (5) whether a significant
       amount of time has passed between the incident and the statement; (6) whether
       the declarant will benefit from making the statement; and (7) whether the
       psychological and physical surroundings could affect the statement.
Id. at 242 n.7, 220 P.3d at 1061 n.7. The test for a trial court to determine whether there is
sufficient corroboration for admission under I.R.E. 804(b)(3) is whether evidence in the record
corroborating and contradicting the declarant’s statement would permit a reasonable person to
believe that the statement could be true. Meister, 148 Idaho at 242, 220 P.3d at 1061. If the
statements clearly establish trustworthiness through corroborating evidence, it is within the
province of the jury to weigh the testimony and determine where the truth lies. Id.
       During trial, Longee called J.W. and D.G. to testify. Longee wanted to elicit testimony
from both witnesses about statements reportedly made by K.W., who had invoked his Fifth
Amendment right and refused to testify. Longee wanted to have J.W. testify that he met K.W.
while incarcerated and K.W. admitted that he and O.P. committed the burglary and O.P. had the
guns after the burglary. Longee wanted D.G. to testify that he had spoken to K.W. and that K.W.
had said he felt that he did not have a choice but to go along with O.P. when O.P. blamed it on
Longee because O.P. had already turned the guns into the police and the “cat was out of the
bag.” D.G. would have also testified that K.W. told him that “those were ours, we took them”
and D.G. took that to mean that K.W. and O.P. took the guns. The State objected to both J.W.
and D.G.’s testimony regarding the statements reportedly made by K.W., arguing that Longee
had not presented the necessary corroborating circumstances as required under I.R.E. 804(b)(3).
The district court sustained the State’s objection to both J.W. and D.G.’s comments regarding
K.W.’s testimony under I.R.E. 804(b)(3), finding there were inadequate corroborating
circumstances to admit the statements. The district court, however, allowed the parties time to
research the issue. The next day, the parties presented their arguments, at which time Longee
cited the seven Meister factors and discussed each factor in relation to K.W.’s reported
statements.   The district court adhered to its previous ruling and excluded the proffered
testimony.


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       Longee asserts that the district court abused its discretion in finding insufficient
corroborating circumstances and refusing to admit K.W.’s hearsay statements. Specifically,
Longee contends the district erred by not expressly applying all of the Meister factors. Longee
also contends that the district court invaded the province of the jury by “concern[ing] itself with
whether it believed the statements were true” rather than “asking whether evidence in the record
corroborating and contradicting the declarant’s statement[s] would permit a reasonable person to
believe that the statement[s] could be true.” A review of the record shows that the district court
correctly perceived the issue as one of discretion, acted within the bounds of its discretion and
consistently with applicable legal standards, and reached its decision by an exercise of reason.
Contrary to Longee’s claim, the district court was not required to articulate its finding on each
factor set forth in Meister, and the failure to do so does not mean the district court “neglect[ed]”
the relevant factors or abused its discretion. It was also not an abuse of discretion for the district
court to focus on the corroboration requirement, which it characterized as a “critical factor.”
Idaho Rule of Evidence 804(b)(3) precludes admission “unless corroborating circumstances
clearly indicate the trustworthiness of the statement” and the factors set forth in Meister inform
that inquiry. Although the district court did not reference the Meister factors individually, it does
not mean the district court neglected, ignored or disregarded them, particularly when presented
with the factors in conjunction with the parties’ arguments.
       We also reject Longee’s contention that the district court applied a standard of whether it
personally believed the hearsay statements rather than the applicable reasonable person standard.
The only basis Longee offers for this claim is the district court’s statement that “it’s a
well-argued and well-presented point, and it is a close point. I didn’t see, before, the clearly
corroborating circumstances, and I don’t at this point, and I’ll abide by the ruling; although, I
acknowledge that it’s very--it’s closer in light of the decisions that have been cited.” The district
court’s use of the word “I” in its oral ruling, finding there were insufficient corroborating
circumstances to admit the hearsay, does not translate into a conclusion that the district court
ignored the applicable legal standard. Indeed, the district court’s comments do not indicate the
district court’s belief regarding the statements. The quoted language only reflects that the district
court found insufficient corroborating circumstances, which is the correct legal standard the
district court was to apply. The district court understood and applied the correct legal standard


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and reached its decision by exercising reason. Accordingly, we conclude that the district court
did not abuse its discretion.
                                                IV.
                                         CONCLUSION
       The district court did not abuse its discretion when it excluded proposed testimony
regarding K.W.’s hearsay statements. Longee’s judgments of conviction for burglary, grand
theft by possession of stolen property, unlawful possession of a firearm, solicitation of grand
theft by disposing of stolen property, and being a persistent violator are affirmed.
       Chief Judge GRATTON and Judge GUTIERREZ, CONCUR.




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