               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 44275

STATE OF IDAHO,                                )    2017 Unpublished Opinion No. 535
                                               )
       Plaintiff-Respondent,                   )    Filed: August 2, 2017
                                               )
v.                                             )    Karel A. Lehrman, Clerk
                                               )
CLARK JACKSON CLEVELAND,                       )    THIS IS AN UNPUBLISHED
                                               )    OPINION AND SHALL NOT
       Defendant-Appellant.                    )    BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Samuel A. Hoagland, District Judge.

       Judgment of conviction for aggravated battery, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Clark Jackson Cleveland appeals from his judgment of conviction entered upon a jury
finding him guilty of aggravated battery, Idaho Code §§ 18-903(A), 18-907(a)(b), 19-2520F.
We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       While an inmate at the Idaho State Correctional Institution, Cleveland was accused of
attacking another inmate. The victim stated that Cleveland threw hot water on him, causing first
degree and second degree burns, and that Cleveland beat him and stabbed him with tweezers. In
addition to the burns, the victim’s injuries included a hematoma, puncture wounds, injury to his
carotid artery, and facial fractures. The State charged Cleveland with aggravated battery. A jury




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found Cleveland guilty and the trial court imposed a unified fifteen-year sentence, with ten years
determinate. Cleveland timely appeals.
                                                II.
                                           ANALYSIS
       Cleveland claims that the district court erred by allowing, over objection, hearsay
evidence regarding Cleveland’s use of the microwave prior to the attack. Cleveland argues that
the district court failed to exercise reason in allowing the testimony by holding that Cleveland
had “opened the door” to allow the testimony.             The trial court has broad discretion in
determining the admissibility of testimonial evidence. State v. Smith, 117 Idaho 225, 232, 786
P.2d 1127, 1134 (1990). A decision to admit or deny such evidence will not be disturbed on
appeal absent a clear showing of abuse of that discretion. Id.
        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).
       A detective with the Ada County Sheriff’s Office conducted the investigation of the
incident. The detective testified that he found blood on the toilet, the floor, and the wall of the
bathroom. The detective also found a white plastic cup in the bathroom. The detective testified
that he had been given information from an inmate who indicated that Cleveland had been
carrying the cup. The detective testified that he reviewed a security video showing the victim
and Cleveland being in the bathroom at the same time for about a minute. Further, the detective
attested, Cleveland’s cellmate was in the bathroom with them for about eight seconds. The
detective also stated that an inmate (H.H.) could be seen walking over to the bathroom, looking
inside, and eventually going into the shower across the hall.
       During cross-examination, Cleveland’s trial counsel inquired of the detective:
       Q.      Did you come across any witnesses that--or spoke to anyone that may
               have saw Cleveland use the microwave?
       A.      Yes.
       Q.      Was that [H.H.]?
       A.      Yes.
       Thereafter, the State inquired of the detective:


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       Q.      Counsel asked you about [H.H.] and the use of the microwave.
       A.      Correct.
       Q.      What did he say about Cleveland’s use of the microwave?
       At that time, Cleveland’s trial counsel objected on the ground of hearsay. The court
opined, “You opened the door, counsel. Overruled.” The detective then testified as follows:
       [H.H.] told me that he knew that Mr. Cleveland was heating up something in the
       microwave. That he knew it was in the white cup. He told me that Cleveland
       said he was heating up oatmeal and [H.H.] assumed it was water being heated up.
       And that he witnessed Mr. Cleveland carry the tumbler from the top of the
       microwave out of the day room.
The detective further testified that this occurred around the time that Cleveland entered the
bathroom. We agree with the State that Cleveland’s counsel opened the door to the substance of
the conversation quoted above. Counsel’s question was not simply whether a conversation
occurred, but about Cleveland’s use of the microwave.
       In addition, any error in allowing the detective’s testimony as to his conversation with
H.H. was harmless. Error is not reversible unless it is prejudicial. State v. Stoddard, 105 Idaho
169, 171, 667 P.2d 272, 274 (Ct. App. 1983). With limited exceptions, even constitutional error
is not necessarily prejudicial error. Id. Thus, we examine whether the alleged error complained
of in the present case was harmless. See State v. Lopez, 141 Idaho 575, 578, 114 P.3d 133, 136
(Ct. App. 2005).
       Here, the victim testified that it was Cleveland who attacked him and threw boiling water
on him while he was in the bathroom. 1 Cleveland argues that any error in admitting the
detective’s testimony is not harmless because the victim was the only eyewitness and there was
no DNA evidence. However, the victim’s testimony was corroborated by a video depicting
activity outside the bathroom where the attack occurred. The detective testified that the video
shows Cleveland going into the bathroom carrying a white container. The detective testified that
in the course of the investigation, a white plastic cup was discovered on the floor in the bathroom
where the victim was attacked. Further, the detective attested that he had been given information
from an inmate who indicated that Cleveland had been carrying that cup. The detective further
attested the video shows about one minute after Cleveland had entered the bathroom, Cleveland
can be seen hurrying out of the bathroom, no longer carrying the cup. Thereafter, the visibly


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       The victim refused to testify at trial; however, his preliminary hearing testimony was
admitted.
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injured victim is seen leaving the bathroom. Further, medical personnel documented the victim’s
injuries, including burn marks, which were consistent with the attack as described. Photographs
of those injuries were presented to the jury.
       Based on the evidence presented, we are convinced beyond a reasonable doubt that any
reference by the detective to H.H.’s account of Cleveland’s microwave use did not contribute to
the verdict. Based upon the detective’s explanation of the security video, the victim’s own
testimony, and the victim’s documented injuries, the jury was presented with convincing
evidence that Cleveland carried a cup of hot water into the bathroom. Thus, it follows that the
detective’s testimony in regard to Cleveland’s microwave use would have little to no effect.
Significantly, defense counsel had already elicited testimony from the detective that H.H.
indicated he had seen Cleveland use the microwave. The district court did not commit reversible
error by admitting the detective’s testimony as to his conversation with H.H. regarding
Cleveland’s microwave use.
                                                 III.
                                         CONCLUSION
       The district court did not error in allowing the testimony. Cleveland’s judgment of
conviction for aggravated battery is affirmed.
       Judge GUTIERREZ and Judge HUSKEY CONCUR.




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