                  IN THE SUPREME COURT OF THE STATE OF IDHO
                                Docket No. 43673



                                                    )
STATE OF IDAHO,                                     )   Boise, May 2017 Term
                                                    )
       Plaintiff-Respondent,                        )   2017 Opinion No. 99
                                                    )
v.                                                  )   Filed: September 12, 2017
                                                    )
DAROL KEITH ANDERSON,                               )   Karel A. Lehrman, Clerk
                                                    )
       Defendant-Appellant.                         )   SUBSTITUTE OPINION, THE
                                                    )   COURT’S PRIOR OPINION
                                                    )   DATED JULY 11, 2017 IS
_____________________________________               )   HEREBY WITHDRAWN.


       Appeal from the District Court of the First Judicial District of the
       State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.

       The district court’s judgment is vacated in part and affirmed in part.
       This case is remanded to the district court for future proceedings
       consistent with this Opinion.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorney
       for respondent. Theodore S. Tollefson argued.

       Eric D. Fredericksen, State Appellate Public Defender, Boise, attorney
       for appellant. Jenevieve C. Swinford argued.
                               ____________________________

JONES, Justice

                                    I. NATURE OF THE CASE
       In a case arising out of Kootenai County, Darol Keith Anderson (“Anderson”) appeals his
convictions for felony domestic battery and misdemeanor domestic battery. Anderson asserts that
the district court erred when it admitted the preliminary hearing testimony of his alleged victim,
Erica Messerly (“Messerly”), after finding that she was unavailable to testify at his trial due to
mental illness. Anderson also asserts that the district court abused its discretion when it allowed

                                                1
Officer Spencer Mortensen (“Officer Mortensen”) to testify that the injuries that he had observed
on Messerly’s person were consistent with her allegations against Anderson. He argues that
Officer Mortensen’s testimony constituted impermissible vouching for Messerly’s truthfulness.
                        II. FACTUAL AND PROCEDURAL BACKGROUND
       On the evening of September 7, 2014, Officer Mortensen was dispatched to investigate
reports of a physical domestic dispute. On arriving at the scene, Officer Mortensen encountered
Messerly, whom he described as appearing to be nervous. Officer Mortensen noted that Messerly
had bruises and cuts on her neck and face. Messerly proceeded to describe the following events.
       Shortly after midnight on the morning on September 6, 2014, Messerly and Anderson,
her husband of three months, were lying in bed. Messerly was angry because she had found
explicit photographs of another woman on Anderson’s cell phone. Messerly kicked Anderson in
the back, causing him to partially fall out of bed. Anderson jumped back onto the bed, straddled
Messerly, and squeezed her trachea until she was unable to breathe. Anderson choked Messerly
for approximately five minutes, but she did not lose consciousness. While Anderson was choking
her, Messerly attempted to scratch his face with her fingernails. After Anderson stopped choking
Messerly, he walked downstairs. Messerly followed him downstairs and grabbed his cell phone
out of his hands. She proceeded to drop his cell phone into a toilet. Anderson punched her in the
face with his right fist. Messerly fled her home, and Anderson locked the doors behind her. On
discovering that the doors were locked, Messerly sought help from a neighbor to gain reentry.
When she returned with the neighbor, the door was unlocked. She entered her home with the
neighbor and found Anderson hiding in the laundry room holding a metal pipe. Anderson
proceeded to threaten the neighbor with the pipe and accuse him of sleeping with Messerly.
When Messerly and the neighbor attempted to leave, Anderson grabbed her by the hair and
pulled her back inside. Inside the home, Anderson punched Messerly one time in the face, briefly
knocking her unconscious. She fell to the floor. While Messerly was on the floor, Anderson
punched her in the back of the head and neck. After regaining consciousness, Messerly stood up,
walked to a couch, and sat down. She begged Anderson to return to bed, but he refused.
Anderson grabbed a steak knife and held it to her throat. Messerly grabbed Anderson by the
abdomen and he dropped the knife. Anderson then bit Messerly on the neck and shoulder.
Anderson left the room and returned with the metal pipe. He swung the pipe at Messerly’s head,
but stopped the swing before it hit her. He then jabbed the pipe into Messerly’s left side.

                                               2
Messerly attempted to flee to the garage, and Anderson punched her in the back of the head
twice. Messerly finally escaped from the residence and walked back to the neighbor’s residence.
The neighbor drove Messerly to the home of Melissa Watts (“Watts”).
          In corroboration of her statements to Officer Mortensen, Messerly showed him a mark on
the right side of her nose where she was allegedly punched, a small cut on her throat allegedly
caused by the knife, bite marks on her neck and shoulder, and a deep purple bruise on her right
side where she was allegedly jabbed with the pipe. Messerly took Officer Mortensen into her
residence, but was unable to locate the knife or the pipe.
          Officer Mortensen next spoke with Watts. Watts told Officer Mortensen that on
September 6, 2014, at 2:30 P.M., she and Messerly had returned to Messerly’s residence in order
to take some of Messerly’s clothing. While they were there, Anderson kicked Messerly in the
stomach twice. Messerly and Watts told him to leave the residence, which he did. Officer
Mortensen spoke to Messerly about this second incident. Messerly confirmed that she had been
kicked.
          Officer Mortensen next spoke with Lawrence Preston (“Preston”), the neighbor who had
called the police on September 7, 2014. Preston stated that immediately prior to calling the
police, he had observed Messerly taking Anderson’s cell phone in their driveway and attempting
to keep it away from him. Anderson then grabbed Messerly by the hair and pulled her into the
house. At trial, Preston would testify that he had seen Anderson punch Messerly in the face
during this altercation.
          While Officer Mortensen was speaking with witnesses, Officer A. Winstead (“Officer
Winstead”), who had been called in to assist Officer Mortensen, made contact with Anderson
over the phone. Anderson stated that Messerly and Watts were lying and that he had never
touched Messerly. Anderson refused to meet with Officer Winstead to give a statement in
person.
          On October 1, 2014, Officer N. Lowry (“Officer Lowry”), a third officer assigned to the
case, was able to contact Anderson by phone. Anderson again denied harming Messerly,
claiming that Messerly had kicked him during the altercation on the morning of September 6,
2016, and had hit him when she had returned later that day.
          On January 29, 2015, the State filed an Amended Criminal Complaint, charging
Anderson with Felony Domestic Battery (regarding the allegations of battery on September 6,
                                                 3
2014), Aggravated Assault (regarding the allegations involving the knife), Attempted
Strangulation, and Misdemeanor Domestic Battery (regarding the allegations of battery on
September 7, 2014).
       On February 3, 2015, the magistrate court conducted a preliminary hearing in the case.
Messerly testified at the hearing to the events that she had described to Officer Mortensen.
Messerly testified that on September 6, 2014, Anderson had punched and choked her, that he had
briefly knocked her unconscious, that he had swung a long metal pipe at her head and then
jabbed it into her side, that he had held a knife to her throat, and that he had bitten her neck. At
times during her testimony, Messerly stated that Anderson’s presence in the courtroom was
distressing to her. She needed to take multiple breaks in order to complete her testimony.
Following her direct testimony, Anderson cross examined Messerly.
       At the close of the preliminary hearing, the State amended its complaint to add an
additional count of aggravated assault (with the metal pipe). The magistrate court found that
probable cause existed with respect to each of the five counts. The district court set trial for July
20, 2015.
       On June 19, 2015, Messerly checked into the Kootenai Behavioral Health Center (the
“KBH”). She was diagnosed with a Post-Traumatic Stress Disorder and Substance Use Disorder.
       On July 16, 2015, the State filed a motion in limine seeking to declare Messerly
unavailable to testify at trial and seeking to admit a transcript of her testimony at the preliminary
hearing. In support of that motion, the State submitted the affidavit of Dr. Eric J. Heidenreich,
M.D. (“Dr. Heidenreich”), dated July 16, 2015, which provided, in part, as follows:
       Comes Now, Eric J. Heidenreich, M.D., and hereby deposes and swears:
       ....
       2. That Erica Messerly is currently, and has been, a patient at KBH since
       6/19/2015;
       3. That I have examined Ms. Messerly and have had multiple opportunities to
       observe her and interact with her over the past few days;
       ....
       6. Ms. Messerly presents as tearful and emotionally labile;
       7. It has been my observation, and that of my staff, that any significant emotional
       distress typically is followed by Erica decompensating, which in turn, increases
       her risk for relapse in the context of her addiction to controlled substances;
       ....
                                                 4
        9. Ms. Messerly’s prognosis is poor to begin with and I would anticipate having to
        testify would result in further deterioration of her current, already fragile
        condition;
        10. Testifying would put Ms. Messerly at substantial risk for relapse on controlled
        substances and pose a significant risk to her mental health;
        11. I emphatically recommend that Ms. Messerly not testify at this time or any in
        the near future.
        On July 20, 2015, the district court held a hearing at which it addressed the motion in
limine. Lisa Bunker (“Bunker”), the clinical manager of the chemical dependency unit at KBH,
testified. Bunker corroborated Dr. Heidenreich’s diagnoses of Substance Use Disorder and Post-
Traumatic Stress Disorder. She stated that in her professional judgment it would not be
appropriate for Messerly to testify at trial:
                 She has a very fragile, if you will, mental health state, and it is our belief
        that it would re-traumatize her at this point in time. Our -- we would prefer for her
        to stabilize from a mental health standpoint. Our -- our goal for her is to increase
        her ability to stay mentally well and psychiatrically stabilized, and it’s too soon in
        her very early recovery from [sic] her mental health.
        ....
                 So we talk about in -- in recovery, mental health and substance abuse, the
        first 90 days being a really important time in a person’s early recovery. So I
        wouldn’t go near any kind of revisiting this in the next 90 days. That would be my
        professional -- and then -- and then to evaluate, but have the psychiatrist evaluate
        her mental health professionals evaluate her to see what in 90 days it looks like
        for her.
Following Bunker’s testimony, the district court held as follows:
        I am going to find, I do find, that Miss Messerly is unavailable. . . .
        ....
               I do find that a continuance of this trial is not a practical option. Mr.
        Anderson has been steadfast, adamant in his not wanting to waive his right to a
        speedy trial . . . .
        ....
              . . . and there is no indication that Miss Messerly would be available
        between now and October.
        ....
               As far as opportunity to have sufficient cross-examination at the
        preliminary hearing, I read the preliminary hearing transcript, and while certainly
        Mr. Anderson was disruptive at the beginning, Miss Messerly had difficulty
        throughout the proceedings, which I think just lends credence to Dr.

                                                   5
       Heidenreich’s observations and Miss Bunker’s testimony and observations from
       the witness stand today.
In accordance with the district court’s decision on the motion in limine, at the time of trial, the
State read Messerly’s testimony from the preliminary hearing regarding the events that occurred
on September 6, 2014.
       Officer Mortensen also testified at trial. Part of his testimony regarded the injuries he
observed on Messserly’s person on September 7, 2014. Specifically, Officer Mortensen testified
as follows:
       Q: After having that conversation with Miss Messerly, did you observe any
       injuries on her?
       A: I did.
       Q: Would you please describe as best you can the injuries you observed on Miss
       Messerly?
       A: There was [sic] several that I observed. . . . I observed a cut on her nose, and
       her eyes were starting to blacken on the interior of the eyes, which was consistent
       with what she told me had happened.
               I observed a little straight line kind of cut mark right on her neck, lower
       part of her neck, was also consistent with her story.
       ....
              I observed a large area of immediate bruising on the right side of her neck,
       which is also consistent.
       ....
              I observed a bite mark . . . what appeared to be a bite mark on her right
       shoulder, also consistent . . . .
       ....
               I also observed on her left side, her oblique area, a large bruise in the form
       of a circle, was also consistent.
       ....
              I observed several other bruises, fresh bruises on her right forearm and on
       her other arm, which I – they were new, looked like fresh bruises.
Each time Officer Mortensen used the term consistent, Anderson objected, claiming that Officer
Mortensen was “vouching for [Messerly’s] credibility.”
       The jury found Anderson guilty of Felony Domestic Battery (for his actions on
September 6, 2014) and Misdemeanor Domestic Battery (for his actions of September 7, 2014).


                                                 6
The jury found Anderson not guilty of the two aggravated assault charges and attempted
strangulation. The district court sentenced Anderson to ten years with four years fixed.
       Anderson appealed.
                                     III. ISSUES ON APPEAL
1.     Did the district court err when it admitted Messerly’s testimony from the preliminary
       hearing?
2.     Did the district court abuse its discretion by admitting Officer Mortensen’s testimony?
                                   IV. STANDARD OF REVIEW
              When reviewing the trial court’s evidentiary rulings, this Court applies an
       abuse of discretion standard. Dulaney v. St. Alphonsus Reg’l Med. Ctr., 137 Idaho
       160, 163–64, 45 P.3d 816, 819–20 (2002). “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.” Perry v. Magic Valley Reg’l Med. Ctr., 134 Idaho 46, 51,
       995 P.2d 816, 821 (2000).
              Constitutional questions are reviewed de novo. State v. Dunlap, 155 Idaho
       345, 377, 313 P.3d 1, 33 (2013).
State v. Jones, 160 Idaho 449, 450, 375 P.3d 279, 280 (2016).
                                          V. ANALYSIS
A.     The district court erred when it admitted Messerly’s testimony from the
       preliminary hearing because the State failed to establish that Messerly was
       unavailable to testify.
       Anderson asserts on appeal that the admission of Messerly’s preliminary hearing
testimony was error. He reasons that under both the Confrontation Clause in the Sixth
Amendment of the United States Constitution and Idaho Rule of Evidence 804, preliminary
hearing testimony is not admissible unless the declarant is unavailable at trial. Messerly was not
unavailable, Anderson argues, because “Ms. Messerly’s mental illness was not so severe as to
render her unavailable to testify.” Anderson argues that:
       Ms. Messerly was diagnosed with PTSD and substance use disorder. These
       mental health issues do not satisfy “extreme circumstances” to excuse her from
       testifying. . . . Ms. Messerly was not committed to a psychiatric hospital or
       diagnosed with any psychotic disorders. In fact, she was discharged from KBH.
       There was no evidence that Ms. Messerly’s memory was impaired or distorted by
       her mental health issues. There was no evidence that she refused to testify or
       would not appear at trial. There was no evidence that she was suicidal or a danger
       to others. There was no evidence of permanent psychological damage if she
       testified. There was no evidence that any temporary psychological effect could
                                               7
       not be reversed through her treatment with KBH. In all, the possible harm to Ms.
       Messerly fell in the category of the normal and expected “adverse emotional or
       psychological effects” or “anguish” due to the nature of the proceedings.
       ....
       The State did not meet its burden to establish that Ms. Messerly would experience
       substantial trauma or “grave risks” to her mental health. And the district court did
       not act consistently with the applicable legal standards by declaring Ms. Messerly
       unavailable.

       Anderson next argues that the district court’s error was not harmless. He reasons that:
       The State must prove, beyond a reasonable doubt, that the error complained of did
       not contribute to the verdict obtained. . . .
       ....
              The State cannot meet its burden in this case. Ms. Messerly’s testimony
       was vital to proving the September 6 charge of felony domestic battery. . . . No
       one besides Ms. Messerly, and later Mr. Anderson in his defense, testified as to
       the events of September 6.
       The State argues that “[t]he district court had substantial competent evidence that forcing
Ms. Messerly to testify on either July 20 or 21 would result in severe harm to her mental health.”
Further, the State argues that Anderson has failed to show the district court’s finding was clearly
erroneous. As evidence supporting the district court’s conclusion, it cites the testimony of Dr.
Heidenreich and Bunker that testifying could result in the deterioration of Messerly’s mental
condition.
       The State also claims that any error was harmless, because “[t]he result would have been
the same even if the jury had not heard Ms. Messerly’s preliminary hearing transcript.” The State
points out that, with respect to the September 6, 2014, altercation, Anderson himself admitted
that he grabbed Messerly by her throat and that he punched her hard enough to knock her out. It
also notes that both Officer Mortensen and Preston testified with respect to Messerly’s injuries,
and the State introduced pictures of those injuries.
       With respect to the September 7, 2014, altercation, the State argues that Messerly did not
testify. Her testimony was limited to the events on September 6, 2014. Accordingly, it is not
possible that the misdemeanor conviction was affected by the admission of Messerly’s
preliminary hearing testimony.
       The Sixth Amendment to the United States Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against
                                             8
him.” U.S. Const. amend. VI, § 1. “[T]his provision [also known as the Confrontation Clause]
bars admission of testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” Davis v. Washington, 547 U.S. 813, 821 (2006) (internal citations omitted). The
term “testimonial . . . applies at a minimum to prior testimony at a preliminary hearing, before a
grand jury, or at a former trial.” Crawford v. Washington, 541 U.S. 36, 68 (2004). It is the
proponent of the testimony that has the burden to establish unavailability. State v. Perry, 144
Idaho 266, 269, 159 P.3d 903, 906 (Ct. App. 2007) (citing State v. Button, 134 Idaho 864, 868,
11 P.3d 483, 487 (Ct. App. 2000)). There have been numerous cases decided by this Court in
which preliminary hearing testimony was found admissible because it was proven that the
declarant became unavailable before trial. See, e.g. State v. Richardson, 156 Idaho 524, 528–30,
328 P.3d 504, 508–10 (2014); State v. Sepulveda, 161 Idaho 79, ___, 383 P.3d 1249, 1254
(2016).
          However, unavailability due to mental illness is an issue of first impression for this Court.
Likewise, despite the importance of the Confrontation Clause, relatively little federal
clarification has been provided with respect to what makes a witness unavailable. Federal Rule
of Evidence 804(a)(4), which is substantially similar to Idaho Rule of Evidence 804(a)(4),
identifies mental illness as one criteria for unavailability, however, the United States Supreme
Court has not issued any opinions establishing a standard for unavailability due to mental illness.
Accordingly, state and federal courts have taken it upon themselves to establish standards for
unavailability due to mental illness.
          For example, in Warren v. U.S., the Court of Appeals for the District of Columbia was
presented with a case in which a lower court held that a rape victim was “psychologically
unavailable” to testify. 436 A.2d 821, 824 (1981). The D.C. Court of Appeals reviewed the
United States Supreme Court precedent on the matter and determined that “the constitutional
question appears to be at what point, if any, is it no longer reasonable to require the government
to produce witnesses at the risk of their psychological health.” Id. at 827.
          The D.C. Court of Appeals concluded that the witness was unavailable on the basis that
“experts agreed that she would undergo far greater mental anguish than normally accompanies
court appearances of the victims of rapes (and presumably other such crimes as kidnapping,
terrorism, and hijacking) and that her appearance in court . . . would be likely to lead to
                                                   9
severe psychosis, even possible suicide.” Id. at 828. In Warren, the witness had been diagnosed
with narcissistic personality disorder and as vulnerable to transient psychosis as a result of stress.
Id. at 829. She informed the doctor that she would rather be jailed for contempt than testify. The
D.C. Court of Appeals concluded:

       We do not intend to sanction a new category of medical unavailability in all cases
       where witnesses are likely to suffer adverse emotional or psychological effects as
       a result of testifying against their assailants. But in the extreme circumstances
       presented here, we agree that the grave risks to the witness’ psychological health
       justify excusing her live in-court testimony. The expert testimony relating to
       Reed’s mental health established that there was both a high likelihood of
       temporary psychological injury, perhaps even psychosis, and a possibility of
       permanent psychological injury.
Id. at 829–30.
       In Burns v. Clusen, the Seventh Circuit Court of Appeals reviewed a state district court
determination that a witness (“L.L.”) diagnosed with acute schizophreniform disorder was
unavailable to testify. 798 F.2d 931, 937 (1986). The circuit court reasoned that:
              The burden of proving the unavailability of the witness rests upon the
       party offering the prior testimony. If there is a possibility, albeit remote, that
       affirmative measures might produce the declarant, the obligation of good faith
       may demand their effectuation. Ohio v. Roberts, 448 U.S. at 74, 100 S.Ct. at
       2543. The lengths to which the prosecution must go to produce a witness is a
       question of reasonableness. California v. Green, 399 U.S. 149, 189 n. 22, 90 S.Ct.
       1930, 1951 n. 22, 26 L.Ed.2d 489 (1970).
       ....
               As to severity, mental illness itself may not automatically render a witness
       unavailable. The judge must consider the symptoms, what tasks a witness is then
       capable of. While all victims of violent crimes may suffer emotional trauma, some
       victims may suffer far greater anguish than normally accompanies court
       appearances.
       ....
               Given those considerations, there is no question that L.L. was unavailable
       in early September 1980 . . . . The prosecutor reasonably abandoned the effort to
       produce L.L. when she learned of L.L.’s hospitalization. L.L.’s mental condition
       at the time of admission to the psychiatric ward was undoubtedly severe—
       “catatonic stupor with hallucinations and delusions,” and recovery in the near
       future was speculative.
Id. at 937–38. Despite finding that the evidence showed that L.L. had been initially unavailable,
the circuit court concluded, that by the time the judge made her unavailability decision, too much


                                                 10
time had passed from the initial diagnosis and it was unclear whether or not the witness was still
suffering from the same level of mental illness. Id. at 942.
       [W]e hold that the State has not fulfilled its burden of proving L.L.’s
       unavailability as a precedent to offering her prior testimony. The prosecution has
       neither made stringent efforts to show that L.L. was unavailable, nor produced
       affirmative proof of L.L.’s actual unavailability at the time of trial in March 1981.
       Instead we are left with an out-dated prediction, one which may or may not have
       been accurate on the eve of trial.
Id.
       The determination of whether a witness is unavailable, such that preliminary hearing
testimony is admissible, is evidentiary in nature. Evidentiary decisions are reviewed under an
abuse of discretion standard. Dulaney v. St. Alphonsus Reg’l Med. Ctr., 137 Idaho 160, 163–64,
45 P.3d 816, 819–20 (2002). Accordingly, we will review the district court’s decision to approve
the motion in limine under an abuse of discretion standard.
       The crux of this case is whether the district court acted consistent with applicable legal
standards. We hold that the district court did not. Specifically, we hold that the district court
abused its discretion in admitting the motion in limine because the State failed to produce
sufficient evidence to demonstrate that Messerly was unavailable to testify at the time of trial.
The affidavit from Dr. Eric J. Heidenreich and the testimony of Lisa Bunker are insufficient to
establish that Messerly was physically, emotionally, or mentally precluded from testifying at
trial. Dr. Heidenreich opined that “testifying would put Ms. Messerly at substantial risk for
relapse on controlled substances and pose a significant risk to her mental health.” Bunker
testified that “[Messerly] has a very fragile, if you will, mental health state, and it is our belief
that it would re-traumatize her at this point in time.” While this Court is sensitive to the adverse
emotional effects associated with providing testimony of a traumatic event, the aforementioned
testimony does not demonstrate that Messerly was unavailable. In this case, the concern was
regarding a possible relapse due to her fragile mental state. As noted by the court in Burns, the
severity of the mental illness itself may not automatically render a witness unavailable. The
judge must consider the symptoms, what tasks a witness is then capable of. See Burns, 798 F.2d
931, 937 (1986). Indeed, Messerly was able to provide testimony, albeit with breaks, at the
preliminary hearing.
       Because Dr. Heidenreich’s affidavit and Bunker’s testimony are not sufficient evidence
to establish that Messerly’s mental illness made her unavailable to testify, the district court erred
                                               11
when it granted the motion in limine to allow her prehearing testimony to be read at trial.
Further, the district court’s error was not harmless. In cases where an alleged constitutional
violation was followed by a contemporaneous objection, this Court applies the harmless error
test. State v. Perry, 150 Idaho 209, 221, 245 P.3d 961, 973 (2010) (citing Chapman v. California,
386 U.S. 18, 21–24 (1967)). Under this test, “[a] defendant appealing from an objected-to, non-
constitutionally-based error shall have the duty to establish that such an error occurred, at which
point the State shall have the burden of demonstrating that the error is harmless beyond a
reasonable doubt.” Id. at 222, 245 P.3d at 974. “In other words, the error is harmless if the Court
finds that the result would be the same without the error.” State v. Almaraz, 154 Idaho 584, 598,
301 P.3d 242, 256 (2013).
       The State argues that the result would have been the same despite the admission of
Messerly’s preliminary hearing testimony because of other evidence that was properly admitted,
such as: Anderson’s testimony regarding the events of September 6, 2014; testimony from
Officer Mortensen and Preston regarding Messerly’s injuries; and photographs that the State
introduced of Messerly’s injuries. However, we hold that this evidence is not sufficient to
establish, “beyond a reasonable doubt,” that the decision to allow Messerly’s preliminary hearing
testimony, in lieu of allowing Anderson to confront her, was harmless.
B.     The district court did not abuse its discretion by admitting Officer Mortensen’s
       testimony.
       On appeal, Anderson argues that Officer Mortensen erroneously testified with respect to
Messerly’s credibility. A ruling on this argument is not necessary since we have already vacated
the district court’s sentence. However, because the issue regarding the admissibility of Officer
Mortensen’s testimony has the potential to arise again in any retrial, we will address it.
       Anderson asserts that the district court abused its discretion by admitting Officer
Mortensen’s testimony. He argues that a lay witness cannot give an opinion as to another
witness’ credibility, and “Officer Mortensen’s testimony on Ms. Messerly’s ‘consistent’ story
did ‘nothing but vouch’ for the credibility.” He concludes that:
       Whether Mr. Anderson committed an unjustified battery against Ms. Messerly or
       acted in self-defense came down to a credibility determination between Mr.
       Anderson and Ms. Messerly. Because Ms. Messerly did not testify at trial, the
       jury had no way to assess her demeanor and minimal information to determine her
       credibility–except, of course, the opinion of Officer Mortensen. The State cannot


                                                 12
       prove Officer Mortensen’s vouching for Ms. Messerly’s credibility did not
       contribute to the guilty verdict on the September 6 charge.
       The State responds that:
               Officer Mortensen did not vouch for the inherent trustworthiness of Ms.
       Messerly. Officer Mortensen testified that her visible injuries were consistent with
       the attacks she reported. Testimony that physical evidence is consistent with a
       witness’ version of events is not improper vouching.
        “The Supreme Court of the Territory of Idaho stated over one-hundred years ago, that a
question calling ‘for the opinion of one witness as to the truthfulness of another . . . is clearly an
invasion of the province of the jury, who are the judges of the credibility of witnesses.’” State v.
Perry, 150 Idaho 209, 229, 245 P.3d 961, 981 (2008) (quoting People v. Barnes, 2 Idaho 148,
150, 9 P. 532, 533 (1886)). “This Court has repeatedly recognized that a lay or expert witness
cannot give an opinion of another witness’s credibility or encroach on the fact-finding functions
of the jury.” State v. Parker, 157 Idaho 132, 148, 334 P.3d 806, 822 (2014).
       In Perry, this Court found that the prosecutor committed misconduct when he elicited
testimony from a foster father, foster mother, and an investigating officer as to the truthfulness of
the victims’ allegations of lewd and lascivious conduct. 150 Idaho at 229, 245 P.3d at 981.
Specifically, in that case, the prosecutor asked the foster mother if the victims had ever been
dishonest with her. The foster mother replied that the victims had, but only about immaterial
things. Id. at 228–29, P.3d at 980–81. The prosecutor then asked the foster father during redirect
examination whether he noticed any signs of dishonesty on the girls’ faces when they reported
the allegations. Id. The foster father replied that he had not. Id. Finally, the prosecutor asked the
investigating officer on direct examination whether he believed that the victims were being
truthful in their allegations. Id. The investigating officer replied that he believed the victims were
being truthful. Id. This Court reasoned that these statements were impermissible “vouching
testimony.” Id.
       In State v. Ehrlick, this Court held that a district court erred in allowing an expert to opine
as to whether or not eyewitness reports that the defendant had been seen at certain times were
credible. 158 Idaho 900, 910, 354 P.3d 462, 472 (2015). This Court held that the opinion directly
related to the credibility of the eyewitness and was therefore error, albeit harmless error. Id.
       The district court did not abuse its discretion in allowing Officer Mortensen to opine that
the injuries that he observed on Messerly’s person were consistent with her description of the

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altercation. While it is true that this Court has definitively established that a witness may not
opine as to the truthfulness of another witness, in this case Officer Mortensen was not opining as
to the truth of Messerly’s testimony. Rather, Officer Mortensen testified as to injuries, which he
observed, and then testified as to whether those injuries could have been caused by certain acts
alleged to have been committed. Officer Mortensen made no comment as to whether or not
Messerly was credible. He did not discuss her demeanor or whether she appeared trustworthy
while testifying. He made no comment as to whether or not he believed Messerly’s testimony
was true. Any of these things would have infringed upon the province of the jury. However,
testifying as to whether or not an alleged action could factually cause an observed injury is not
the same as testifying to credibility. Officer Mortensen testified that certain alleged facts could
be true, not that he believed said facts were or were not true. This can sometimes be a difficult
distinction, because giving one’s opinion on an alleged fact often has the effect of supporting or
casting doubt on another witnesses’ testimony. However, testifying to a factual consistency or
inconsistency is not the equivalent of testifying to truthfulness or credibility.
       This distinction is consistent with this Court’s precedent. In Perry, for example, the
prosecutor asked certain witnesses point blank if they thought that other witnesses were telling
the truth. In Ehrlick, the prosecutor asked an expert witness whether an eyewitness’ testimony
was “credible.” The opinion testimony here is fundamentally different. Instead of asking Officer
Mortensen about Messerly’s credibility, the prosecutor asked Officer Mortensen whether his own
observations were consistent with certain alleged facts. Officer Mortensen’s opinions likely
affected the jury’s assessment of whether Messerly was credible, but they did not expose his own
opinion as to her credibility.
                                          VI. CONCLUSION
       For the foregoing reasons, the district court’s judgment is hereby vacated in part and
affirmed in part. Anderson’s felony conviction is hereby vacated. However, Anderson’s
misdemeanor conviction related to the events on September 7, 2014, was untainted by the district
court’s error because Messerly’s preliminary hearing testimony was limited to the events on
September 6, 2014. Therefore, Anderson’s misdemeanor conviction is affirmed. We also affirm
the district court’s admission of Officer Mortensen’s testimony. The matter is hereby remanded
to the district court for future proceedings consistent with this Opinion.

       Chief Justice BURDICK, Justices EISMANN, HORTON and BRODY, CONCUR.
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