                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                     Docket No. 41395-2013

STATE OF IDAHO,                                       )
                                                      )       Boise, June 2014 Term
       Plaintiff-Respondent,                          )
                                                      )       2014 Opinion No. 66
v.                                                    )
                                                      )       Filed: July 31, 2014
MICHAEL ROWE RUSSO,                                   )
                                                      )       Stephen W. Kenyon, Clerk
       Defendant-Appellant.                           )
                                                      )

       Appeal from the District Court of the Third Judicial District of the State of Idaho,
       in and for Canyon County. The Hon. Gregory M. Culet, District Judge.

       The judgment of the district court is affirmed.

       Erik R. Lehtinen, Deputy State Appellate Public Defender, Boise, argued for appellant.

       Kenneth K. Jorgensen, Deputy Attorney General, Boise, argued for respondent.



EISMANN, Justice.
       This is an appeal out of Canyon County from convictions for Rape, First Degree
Kidnapping, and Burglary. The Defendant challenges the admission of evidence first discovered
in the warrantless search of his cell phone and of evidence regarding his rape fantasies and his
possession of pornography depicting rape. We hold that the information obtained during the
warrantless search of his cell phone was admissible under the independent source doctrine and
that the district court did not abuse its discretion in admitting evidence regarding the Defendant’s
rape fantasies and his pornography depicting rape.


                                                 I.
                                  Factual Background.
       In the predawn hours of August 27, 2009, a woman sleeping in the bedroom of her
apartment in Nampa, Canyon County, Idaho, awakened to see an unknown male standing over
her with a knife in his hand. He was wearing a mask that covered his face and exposed his eyes.
He put a hand over her mouth and held a knife against her throat, and he then stated that she was
going to cooperate. He initially attempted several sexual acts, but was unable to obtain an
erection. He then had her lie on her back at the bottom of the bed, where he raped her. He wore
a condom and used his cell phone to take photos of her during the rape. Before leaving, he took
her sheets and a pillow case. He also had her remove the battery from her cell phone, and he
placed it under clothing in her panty drawer. She ran to a neighbor’s house, where she called
911. Defendant was immediately the focus of law enforcement.
       The Nampa police had been investigating Michael Russo (Defendant) for an assault and
battery that had occurred in Nampa on August 21, 2008. The victim, a young woman, and a
female friend were alone on the second floor of the friend’s home when a male appeared in the
doorway of the room they were in. He was wearing a dark hooded sweatshirt, black hat, and
blue jeans, and he stated that there was a fire in the basement. The victim noticed that he was
wearing blue latex gloves. She ran downstairs and looked into the basement, but did not see any
indication of a fire, and the man followed her down the stairs. She told him that there was no
fire, and he responded that two children had run down into the basement. She walked down into
the basement to check, and the man followed her. Once they were in the basement, the man
lunged at her and attempted to strangle her. In the ensuing struggle, he pushed her down onto a
sofa, put his hand across her mouth, and told her he had a knife. She began screaming and
kicked him in the stomach, and he fled. The victim and her friend ran after him, and the friend
noticed that there was a black motorcycle in the area. They then called the police.
       An officer stopped a man who matched the description of the assailant about two blocks
from the crime scene, and the man identified himself as Michael Russo, but claimed to have no
identification. He had fresh blood on the right side of his face and neck, which he asserted to be
the result of a shaving accident. He said that he was there because his motorcycle had broken.
The officer asked Defendant to empty his pockets, and when he complied he produced
identification. Two men then drove up and stated that they had seen someone running, but Russo
was not that person. Defendant was acting nervously and volunteered that he had been involved
in a robbery where a rape occurred in 1995. In actuality, Defendant had been convicted of rape
in Washington in 1995 and was a registered sex offender.
       The following day, Corporal Angela Weekes of the Nampa Police Department
interviewed Defendant. During the interview, he denied involvement in the assault and battery,


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but he consented to a search of his computer. The computer contained several videos of women
being violently raped, and some of the search criteria in the computer included rape fantasies.
Defendant stated that prior to raping the woman in Washington, he had watched pornography
that contained women being raped. He also said that he fantasized about raping a girl who would
get turned on during the rape and decide she liked it; that he fantasized about being dominant
over someone; and that he still struggled with issues involving aggression and sexual boundaries.
       After the Nampa police responded to the victim’s apartment in this case and spoke with
the victim, Defendant became the focus of their investigation. They contacted the Meridian
police, who sent an officer to Defendant’s apartment in Meridian, Ada County, Idaho. When the
officer arrived there at 5:47 a.m., the lights were on in the apartment. He confirmed that
Defendant was inside the apartment, and he checked Defendant’s motorcycle that was parked
outside and determined that the engine was still warm. The Meridian officer stayed outside
Defendant’s apartment for about an hour and left when he was relieved by Detective Deborah
Cain of the Nampa Police Department. Another Nampa officer later arrived at about 8:30 a.m.,
and they both kept the apartment under surveillance.
       Corporal Weekes contacted Detective Ray Ellis of the Meridian Police Department and
asked him to obtain a search warrant from a judge in Ada County, and he did. In his affidavit,
Detective Ellis provided the information described above; information concerning the rape of a
young woman working as a barista in Fruitland, Idaho, on July 8, 2009, and Defendant’s conduct
at that coffee shop the day and evening before the rape; and information concerning Defendant’s
1995 rape of a young woman working as a barista at a coffee shop in Washington. On August
27, 2009, at 11:10 a.m., the magistrate judge issued a search warrant authorizing the police to
search Defendant’s residence and motorcycle and to seize, as evidence of the crime of rape,
certain described items that may be located in those places, including a cellular phone. As soon
as Detective Ellis had obtained the search warrant, he informed Corporal Weekes that the
warrant had been issued, and he then proceeded to Defendant’s apartment with the warrant.
Corporal Weekes and two other Nampa detectives then headed to Defendant’s apartment.
       At about 11:50 a.m., Detective Cain saw Defendant leave his apartment and walk to his
mailbox. She called Corporal Weekes, and then she and the other Nampa officer detained
Defendant at his mailbox. Corporal Weekes performed a patdown search of Defendant and
removed his wallet and a cell phone from his pockets. She told him that he was not being


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arrested but was being detained for investigation, and she handcuffed him and placed him in a
patrol car. About five minutes later, Detective Brice King of the Nampa Police Department
arrived, and Corporal Weekes gave him the cell phone. He looked through what was stored on
the phone and saw a video of a condom-covered penis penetrating a shaved vagina. He then
turned the phone off.
       The officers searched Defendant’s apartment pursuant to the warrant, and they found,
among other items of evidence, two cell phones. Later that afternoon, Detective Ellis went back
to the magistrate court to obtain an amended search warrant for the search of the two cell phones
found in Defendant’s apartment and the cell phone taken from his person. He presented to the
court an amended affidavit, which included all of the information contained in the initial
affidavit and additional information, including the statement: “Additionally, a cellular phone
was recovered from Mr. Russo’s person during a pat down search for officer safety. This phone
was opened and looked at to determine ownership. Your affiant knows that a video was located
on that phone that appears to depict the victim from this morning’s rape.” Based upon the
amended affidavit, the magistrate judge issued a search warrant on August 27, 2009, at 3:15 p.m.
authorizing the search of the three cell phones.
       Defendant was indicted for the rape. Prior to his trial, he moved to suppress various
items of evidence including the video found on the cell phone that was on his person. The
district court denied his motion to suppress.          During the subsequent jury trial, the victim’s
gynecologist testified that the victim was the woman in the video based upon various physical
characteristics of her vaginal area.
       Prior to trial, the State also gave notice that it intended to offer evidence under Idaho
Rule of Evidence 404(b) of various prior bad acts of Defendant. The district court refused to
permit most of the proffered evidence to be admitted, but it held, over objection, that the State
could present evidence of Defendant’s rape fantasies and of pornography found in his possession
that depicted rape.
       At the conclusion of the trial, the jury found Defendant guilty of the felony crimes of
Rape, of Kidnapping in the First Degree (kidnapping for the purpose of raping the person
kidnapped), and of Burglary. For the crime of Rape, the district court sentenced Defendant to
fixed life in the custody of the Idaho Board of Correction without the possibility of parole. For
the crime of Kidnapping in the First Degree, the court sentenced him to life in the custody of the


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Idaho Board of Correction, with the first forty years of that sentence fixed. For the crime of
Burglary, the court sentenced him to a fixed ten years in the custody of the Idaho Board of
Correction.   The latter two sentences were ordered to run concurrently with the fixed life
sentence for Rape.
       Defendant appealed, challenging the denial of his motion to suppress and the admission
of the Rule 404(b) evidence. The appeal was first heard by the Idaho Court of Appeals, which
affirmed Defendant’s convictions. He then filed a petition for review with this Court, which we
granted. In cases that come before this Court on a petition for review of a decision of the Court
of Appeals, we directly review the decision of the lower court as if the appeal initially came
directly to this Court. State v. Suriner, 154 Idaho 81, 83, 294 P.3d 1093, 1095 (2013). We
likewise affirm Defendant’s convictions.


                                              II.
                       Did the District Court Err in Failing to Suppress
                        the Video Found on Defendant’s Cell Phone?

       Defendant filed a motion to suppress from evidence his cell phone and its contents and
statements he later made to police after he was arrested. He also challenged both search warrants
on the ground that they contained deliberate or reckless omissions of fact that tended to mislead.
No live testimony was presented in connection with the motion to suppress.              The parties
stipulated that the district court could consider Exhibits 1, 2, 5, and 6 that were attached to the
State’s memorandum in opposition to the motion to suppress (both search warrants and both
affidavits submitted to obtain them) and a DVD of Defendant’s custodial interview. They also
stipulated that the court could take judicial notice of the testimony in the grand jury proceedings,
although the transcript of that testimony has not been provided on appeal. Prior to ruling, the
court recited its determination of the applicable facts. With respect to the seizure of the cell
phone from Defendant’s person, the court found that when Defendant came out of his apartment
at about 11:50 a.m., neither Detective Cain nor the other officer “observed the defendant to do
anything illegal. The officers did not see the defendant with any weapon. And the officers did
not see the defendant act in a threatening manner.” With respect to the chronology of events that
then occurred, the court found: “Now, the defendant had come out of the apartment, was
stopped at 11:50 in the morning, patted down, frisked, et cetera, wallet, cellular phone taken. . . .



                                                 5
He was told he was not being arrested and it was an investigatory detention. He was then
handcuffed and placed in a patrol car.” The court found that the cell phone was initially not
opened or viewed, and it was then handed to Detective King.             Finally, the court found:
“Approximately five to ten minutes later, at approximately noon, his phone was opened and
viewed by Detective King. Apparently, when looking at the phone, the officer observed a video
or a photo from the rape sequence.” Defendant contended in his motion to suppress that the
phone was seized and searched in violation of the Fourth Amendment to the Constitution of the
United States. The court denied the motion to suppress, and Defendant challenges on appeal the
patdown search by Detective Cain and the warrantless search of his cell phone by Detective
King. Those two issues will be addressed separately.
       Seizure of the cell phone. Defendant does not challenge the authority of the officers to
detain him while waiting for the search warrant to arrive. He challenges Detective Cain’s
decision to pat him down after he was detained.
       Defendant first argues that he “was already in handcuffs by the time he was searched, so
even if he had a weapon, it would have been difficult, if not impossible, to access and use
effectively.” (Citation to record omitted). That is not the chronology found by the district court,
nor is it the chronology stated by Defendant in support of his motion to suppress. In his motion
to suppress, he recited: “Officer Cain detained and searched the Defendant outside his apartment.
He [sic] confiscated the Defendant’s wallet and his cellular phone. The Defendant was told he
was not being arrested, that it was an ‘investigatory detention.’       The Defendant was then
handcuffed and placed in a patrol car.” Defendant has not challenged on appeal the factual
findings made by the district court. Therefore, we need not address this argument.
       Defendant contends that Detective Cain did not have reasonable suspicion to believe that
Defendant was still carrying a weapon on his person. According to Defendant,
       The only fact which could have raised any security concern for the officers at all
       was that [the victim’s] rapist used a knife to gain her compliance; however, the
       officers would have had no reason to suspect that (even assuming they had the
       right suspect in their midst) Mr. Russo still had the knife on him, hours after the
       rape, as he checked his mail.

       To justify a patdown search, “the police must harbor reasonable suspicion that the person
subjected to the frisk is armed and dangerous.” Arizona v. Johnson, 555 U.S. 323, 327 (2009).
The precise meaning of “reasonable suspicion” cannot be articulated with precision. Ornelas v.


                                                  6
United States, 517 U.S. 690, 695 (1996). Although it must be more than a mere hunch, the level
of suspicion required to create a reasonable suspicion is less than is necessary for probable cause
and considerably less than proof by a preponderance of the evidence. Navarette v. California,
572 U.S. ___, ___, 134 S.Ct. 1683, 1687 (2014). The purpose of a patdown search is to permit
the officer to pursue his or her investigation without fear of violence. Adams v. Williams, 407
U.S. 143, 146 (1972). In determining whether reasonable suspicion existed, “the totality of the
circumstances—the whole picture—must be taken into account.” United States v. Cortez, 449
U.S. 411, 417 (1981). The officer is not limited to considering only his or her observations of
the suspect immediately prior to the patdown.
        Detective Cain stopped Defendant because he was suspected of having committed a
felony crime of violence, Rape, earlier that morning, during which he used a knife to subdue his
victim. There is no contention that Detective Cain did not have at least reasonable suspicion to
believe that Defendant had committed that crime. 1 The victim of the rape felt the knife blade
against her neck, but she did not see the knife to know its size. There is no reason to believe that
the knife could not have been concealed in a pocket, and many people carry knives in their
pockets routinely. Under the totality of the circumstances in this case, Detective Cain was
justified in patting down Defendant based upon a reasonable suspicion that he may be armed
with a knife. There was no requirement that she know for sure that he still had the knife, or even
that she thought it was probable that he still had it.
        Searching the cell phone.         When he was handed the cell phone, Detective King
opened it, searched through its contents, and located a video that appeared to depict the victim of
the rape. The district court held that the initial search warrant expressly permitted a search for a
cell phone and therefore implicitly also authorized a search of any cell phone found. Although
that search warrant had not yet been served when Detective King searched the phone, the court
held that “it would have been viewed anyway inevitably when the search warrant was served.”
In that part of its analysis, the district court erred.
        The initial search warrant only authorized the officers to search Defendant’s residence
and motorcycle for various items of evidence and “to seize the property on the Search Warrant
Affidavit filed herein.” (Emphasis added.) Although a “cellular phone” was one of the items


1
  The record does not reflect that Corporal Cain had been informed that the search warrant based upon probable
cause had been issued prior to her detaining Defendant and patting him down.

                                                      7
that could be seized, the search warrant did not purport to authorize the search of a cell phone.
“Different interests are implicated by a seizure than by a search. A seizure affects only the
person’s possessory interests; a search affects a person's privacy interests.” Segura v. United
States, 468 U.S. 796, 806 (1984) (citations omitted). A warrant authorizing the seizure of
property does not authorize the search of that property. Absent exigent circumstances, a search
warrant authorizing the search of a cell phone is required before the officers can search the data
on the phone. Riley v. California, Nos. 13-132 and 13-212, 2014 WL 2864483, at *19 (U.S.
June 25, 2014).
       However, later that day, Detective Ellis did obtain an amended search warrant which
authorized the search of the two cell phones seized from Defendant’s residence pursuant to the
first warrant and the cell phone seized from Defendant’s person “so that a forensic examination
and testing can be completed for the search of stored and deleted files.” The amended affidavit
submitted to obtain the amended search warrant included information obtained from the unlawful
search of the cell phone. In that affidavit, Detective Ellis stated: “Additionally, a cellular phone
was recovered from Mr. Russo’s person during a pat down search for officer safety. This phone
was opened and looked at to determine ownership. Your affiant knows that a video was located
on that phone that appears to depict the victim from this morning’s rape.” In a footnote,
Defendant argues, “Insofar as the State attempts to argue that the contents of the phone would
have inevitably been discovered because of issuance of the actual amended search warrant in this
case, that argument would be absurd because the State used the fruits of its illegal search of that
phone to obtain the amended warrant.”
       “[F]acts improperly obtained do not ‘become sacred and inaccessible. If knowledge of
them is gained from an independent source they may be proved like any others, but the
knowledge gained by the Government’s own wrong cannot be used by it’ simply because it is
used derivatively.”   Nardone v. United States, 308 U.S. 338, 341 (1939).           The inevitable
discovery doctrine is closely related to the independent source doctrine. Nix v. Williams, 467
U.S. 431, 443 (1984). In Nix, the Supreme Court held that when “the evidence in question would
inevitably have been discovered without reference to the police error or misconduct, there is no
nexus sufficient to provide a taint and the evidence is admissible.” Id. at 448. “The independent
source doctrine allows admission of evidence that has been discovered by means wholly
independent of any constitutional violation.” Id. at 443. The interests in deterring unlawful


                                                 8
police conduct and in providing juries with all probative evidence of a crime “are properly
balanced by putting the police in the same, not a worse, position that they would have been in if
no police error or misconduct had occurred.” Id.
       In this case, based upon the information obtained from the victim, the police had probable
cause to believe that Defendant had a cell phone containing photos and/or a video of the rape.
Therefore, they obtained the amended search warrant in order to search all three of Defendant’s
cell phones, not just the one seized from his person. The amended affidavit submitted to obtain
the amended search warrant included information that had been obtained during the unlawful
search of the cell phone. In that instance, the proper remedy is not to void the warrant. Rather, it
is to disregard that information and determine whether there still remains sufficient information
to provide probable cause for the issuance of the warrant. State v. Johnson, 110 Idaho 516, 526,
716 P.2d 1288, 1298 (1986).          Disregarding the unlawfully obtained information when
determining probable cause would put the police in the same, not a worse, position than they
would have been in absent the misconduct.
       The amended affidavit included all of the information included in the original affidavit
plus additional information, which included:
       Your affiant learned from Officers observing the residence that Mr. Russo had
       been seen making several trips between his apartment and a storage unit located
       behind his apartment. Your affiant learned from a neighbor that at approximately
       0600 this morning Mr. Russo was demanding that she remove her laundry from
       the washer and dryer in that building so that he could do some laundry. The
       neighbor found this to be suspicious. Your affiant knows that the clothing
       described by the victim in the rape that occurred this morning in Nampa was
       located during this search. Your affiant seeks to seize those items from the
       laundry room.
              Additionally, a cellular phone was recovered from Mr. Russo’s person
       during a pat down search for officer safety.

       The initial affidavit provided probable cause to believe that Defendant had committed the
rape. The additional information provided supported the probable cause determination. The
initial search warrant was issued to seize any cell phone in the residence or motorcycle as
evidence of the crime of rape. As stated above, based upon the victim’s statements, the police
had probable cause to believe that Defendant had photos and/or a video of the rape on a cell
phone. Under these circumstances, probable cause to search for a cell phone in order to seize it
would also provide probable cause to search the cell phone. Disregarding the information


                                                 9
produced by the unlawful search of the cell phone, there was still sufficient information to
provide probable cause for issuance of the amended search warrant to search the data in that cell
phone. “Where the lower court reaches the correct result by an erroneous theory, this Court will
affirm the order on the correct theory.” Nampa & Meridian Irr. Dist. v. Mussell, 139 Idaho 28,
33, 72 P.3d 868, 873 (2003). We affirm the denial of Defendant’s motion to suppress the
contents of the cell phone.


                                           III.
  Did the District Court Err in Admitting Evidence that Defendant Had Sexual Fantasies
               Involving Rape and Possessed Pornography Depicting Rape?

       Prior to trial, the State moved pursuant to Idaho Rule of Evidence 404(b) to be permitted
to admit into evidence certain testimony and items described as follows:
               1. Evidence of prior rape incidents should be admitted to show motive,
       intent, or plan to rape;
               2. Evidence of the inability to maintain an erection, the use of gloves, the
       taking of the victim’s clothes, the use of weapons, and/or other distinguishing
       characteristics displayed during rape incidents should be admitted to prove
       identity;
               3. Evidence of sexual tendencies, thoughts, and/or rape fantasies should
       be admitted to prove motive, intent, or plan to rape; and
               4. Evidence of pornographic videos and/or images depicting acts of
       forced rape found in the defendant’s possession and/or on the defendant’s
       computer should be admitted to prove motive, intent, or plan to rape.

       Defendant filed an objection to the admission of the proffered evidence. The district
court held that the State could not offer most of the evidence. It did, however, permit the State to
offer two categories of evidence. It permitted Corporal Weekes to testify regarding an interview
she had with Defendant prior to this rape in which he stated that he fantasized about raping a
woman who, in the middle of the rape, would decide that she liked it and would become a
willing participant.    The court also permitted Detective King to testify about printed
pornographic images depicting rape that were found during a search of Defendant’s vehicles, and
those photos were admitted into evidence. Some of the images had been downloaded from
websites dealing with forced sex and bride abuse.
       The admissibility of evidence offered pursuant to Rule 404(b) requires a two-step
analysis. State v. Pepcorn, 152 Idaho 678, 688, 273 P.3d 1271, 1281 (2012). First, the evidence



                                                10
“must be sufficiently established as fact and relevant as a matter of law to a material and
disputed issue other than the character or criminal propensity of the defendant.” Id. Second, the
court must determine pursuant to Rule 403 that “the probative value of the evidence is not
substantially outweighed by the danger of unfair prejudice.” Id. at 689, 273 P.3d at 1282.
       1. Relevance under Rule 404(b). 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. Whether evidence is relevant
is an issue of law, which we review de novo. State v. Page, 135 Idaho 214, 219, 16 P.3d 890,
895 (2000). Rule 404(b) provides:
               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. It may, however, be admissible for other purposes, such as proof of
       motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident, provided that the prosecution in a criminal case shall file and
       serve notice reasonably in advance of trial, or during trial if the court excuses
       pretrial notice on good cause shown, of the general nature of any such evidence it
       intends to introduce at trial.

       The rule states that “[e]vidence 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,” and it
then lists various purposes for which evidence of other crimes, wrongs, or acts may be
admissible. “The rule represents one of inclusion which admits evidence of other crimes or acts
relevant to an issue in the trial, except where it tends to prove only criminal disposition.” United
States v. Brown, 562 F.2d 1144, 1147 (9th Cir. 1977) (emphasis added). In context, the “other
crimes, wrongs, or acts” would be any conduct that may bear adversely on the trier of fact’s
judgment regarding the character of the person.
       The district court held that the evidence was relevant to show motive, preparation, or
plan. “Motive is a well-accepted method of proving the ultimate facts necessary to establish the
commission of a crime, without reliance upon an impermissible inference from bad character.”
29 Am. Jur. 2d Evidence § 439 (2008). Evidence of motive is relevant “when the existence of a
motive is a circumstance tending to make it more probable that the person in question did the
act.” Id.
       Defendant argues on appeal that motive was not relevant in this case because “anyone
who breaks into a young woman’s apartment, clearly for the sole purpose of raping her, does so


                                                  11
for the purpose of sating his sexual urges” and any evidence of motive “has in no way been
shown to be specific to [the victim].” Defendant’s arguments are wrong on both counts. As
Corporal Weekes testified: “Sexual assault, contrary to the way the term sounds, is not a
sexually-motivated crime. Sexual assault is a crime of violence that involves sex as a tool to
commit an act that’s power and control-related. It’s motivated by power and control behavior.
It’s not motivated by sex.” There is no requirement that evidence must show that the motive for
committing the crime was personal to the victim. State v. Almaraz, 154 Idaho 584, 591-92, 301
P.3d 242, 249-50 (2013) (evidence of defendant’s gang affiliation was relevant to show his
motive for killing a stranger wearing a red sports jersey because it was the color used by a rival
gang). The district court did not err in finding that the evidence of Defendant’s fantasies and his
collecting pornography that was consistent with those fantasies was relevant to his motive in this
case.
        2. Unfair prejudice under Rule 403. Even if evidence is admissible under Rule 404(b), it
may still 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.” I.R.E. 403. “The trial court’s
I.R.E. 403 determination will not be disturbed on appeal unless it is shown to be an abuse of
discretion.” State v. Johnson, 148 Idaho 664, 667, 227 P.3d 918, 921 (2010). “To determine
whether a trial court has abused its discretion, this Court considers whether it correctly perceived
the issue as discretionary, whether it acted within the boundaries of its discretion and
consistently with applicable legal standards, and whether it reached its decision by an exercise of
reason.” Reed v. Reed, 137 Idaho 53, 57, 44 P.3d 1108, 1112 (2002).
        The district court in this case perceived that the determination of admissibility under Rule
403 was a matter within its discretion. It acted within the boundaries of its discretion, because it
could either rule the evidence admissible or inadmissible. The applicable legal standards were
weighing the danger of unfair prejudice against the relevance of the evidence. The court began
its analysis by stating that unfairly prejudicial evidence was “evidence that has an undue
tendency to suggest a decision on an improper basis and appeals to the jurors’ sympathies,
arouses their sense of horror, provokes their instinct to punish, or otherwise causes a jury to base
its decision on something other than the established propositions in the case.” The remaining
issue is whether the district court reached its decision by an exercise of reason. Defendant


                                                12
contends that “this evidence is extraordinarily prejudicial.” “This rule, however, does not require
the exclusion of all prejudicial evidence, but only that which is unfairly prejudicial such that it
tends to suggest a decision on an improper basis.” State v. Moore, 131 Idaho 814, 819, 965 P.2d
174, 179 (1998) (emphasis added).        The standard is not “extraordinarily” prejudicial, but
“unfairly” prejudicial. As the district court stated, “[M]ost evidence offered at trial is inherently
prejudicial.” The court considered the various items of evidence that the State wanted to offer,
and it held that most of the evidence was inadmissible under Rule 403. Defendant did not show
that the court failed to reach its decision by the exercise of reason. Therefore, we hold that the
district court did not err in admitting the challenged evidence.


                                              IV.
                                           Conclusion.

       We affirm the judgment of the district court.


       Chief Justice BURDICK, Justices J. JONES, and HORTON CONCUR.




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