                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41135

STATE OF IDAHO,                                  )      2014 Unpublished Opinion No. 601
                                                 )
       Plaintiff-Respondent,                     )      Filed: July 1, 2014
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
ERNIE J. TRUJILLO,                               )      THIS IS AN UNPUBLISHED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. Cheri C. Copsey, District Judge.

       Judgment of conviction and unified sentence of fourteen years with three years
       fixed for forgery, enhanced as a persistent violator, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
WALTERS, Judge Pro Tem
       Ernie James Trujillo appeals from his felony conviction for forgery, I.C. § 18-3601, with
an enhancement of his sentence for his status as a persistent violator, I.C. § 19-2514. On appeal,
he argues that the district court committed error by permitting the State to present to the jury a
recorded telephone conversation containing an admission by Trujillo that implied his guilt. He
also asserts that the district court abused its discretion by sentencing him to fourteen years with
three years fixed.
                                                I.
                                        BACKGROUND
       On January 17, 2012, Trujillo entered a Moneytree store and passed a $375 check, which
had been forged by an accomplice. The State charged Trujillo with forgery, and later added a
persistent violator enhancement allegation. Pending trial on the forgery Trujillo was charged
with new crimes in another case. The parties attempted to resolve all pending charges in a plea

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agreement; however, the district court was reluctant to accept Trujillo’s guilty pleas after Trujillo
appeared to claim innocence in his presentence investigation report with regard to the forgery
charge, and the district court allowed Trujillo to withdraw his guilty pleas. The case ultimately
went to trial. Following the trial, the jury returned guilty verdicts on both the forgery charge and
the enhancement allegation. The district court sentenced Trujillo to fourteen years imprisonment
with three years fixed. Trujillo filed a timely motion to reconsider his sentence, which was
denied by the district court. Trujillo then filed a timely notice of appeal from the judgment of
conviction.
                                                  II.
                                           DISCUSSION
A.     Admission of Recorded Telephone Conversation
       During a pretrial conference, Trujillo objected to the admission into evidence of a portion
of one of three recordings of telephone calls placed by Trujillo from jail. Specifically, Trujillo
objected to the admission of his statement, “I’m thinking I might get probation for being
accessory to it,” on the basis that the statement was confusing for a jury. The State responded
that it felt that the statement was an acknowledgement of guilt, that the risk of confusion did not
outweigh the statement’s relevance, and that the statement was probative of elements the State
needed to prove.       The State also felt that it was a weight of the evidence issue, not an
admissibility issue.
       The district court expressed concern that the statement was an excerpt from a much
longer conversation and that there were a number of interpretations possible with regard to the
statement.    Recognizing that an Idaho Rule of Evidence 403 analysis involves the court’s
discretion and that the trial court must weigh any probative value against any unfair prejudice or
confusion, the district court subsequently found that the statement was probative, but that the
court would exclude the statement given the totality of the excerpt. The district court stated it
would think about the issue a little more and left open the possibility of later changing its mind.
In a subsequent pretrial conference, the State asked the district court to reconsider its ruling on
the statement, and the district court indicated that it would review the recording again.
       At the beginning of the jury trial, the district court informed the parties that it had
reviewed the excerpt, including the excluded statement, and decided that “in listening to it and
putting it in the context of the entirety of that tape, it’s clear that it has probative value of guilt


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and acknowledgement of his own--on Mr. Trujillo’s part in the forgery.” According to the
district court:
        [W]hat comes clear to me is that, one, he knew that some woman, who’s
        unidentified, but I assume it’s the potential co-defendant, put his name on the
        check and that he actually passed it. The jury--the State has to prove that he knew
        that it had been forged when he passed it.
Thus, the district court decided that “the probative value is not substantially outweighed by any
unfair prejudice to Mr. Trujillo and it does not have a tendency to confuse the jury.” Later, the
district court emphasized that “I’ve reversed my decision, having, again, applied a 403 analysis
and finding that its probative value is not substantially outweighed.”            The district court
subsequently granted the State’s motion to admit the jail telephone call recordings, including the
recording containing the previously-excluded statement, into evidence and publish the recordings
for the jury. Trujillo had a continuing objection to the admission of the previously-excluded
statement.
        The Rules of Evidence generally govern the admissibility of all evidence in the State of
Idaho. State v. Meister, 148 Idaho 236, 240, 220 P.3d 1055, 1059 (2009). Rule 403 provides
that relevant evidence may be excluded if, in the trial court’s discretion, the danger of unfair
prejudice substantially outweighs the probative value of the evidence. State v. Ruiz, 150 Idaho
469, 471, 248 P.3d 720, 722 (2010); State v. Fordyce, 151 Idaho 868, 870, 264 P.3d 975, 977
(Ct. App. 2011). “Evidence is not unfairly prejudicial simply because it is damaging to a
defendant’s case. Evidence is unfairly prejudicial when it suggests decision on an improper
basis.” Fordyce, 151 Idaho at 870, 264 P.3d at 977. “Under the rule, the evidence is only
excluded if the probative value is substantially outweighed by the danger of unfair prejudice.
The rule suggests a strong preference for admissibility of relevant evidence.” State v. Martin,
118 Idaho 334, 340 n.3, 796 P.2d 1007, 1013 n.3 (1990). Absent a clear abuse of discretion in
weighing potential prejudice against relevance, a district court’s determination under Rule 403
will not be disturbed on appeal. State v. Enno, 119 Idaho 392, 406, 807 P.2d 610, 624 (1991).
        The record demonstrates that the district court properly exercised its discretion in
weighing the probative value of the evidence of Trujillo’s admission of guilt against its potential
for unfair prejudice. At the State’s request, the district court listened to Trujillo’s admission that
he was an accessory to the forgery in the context of the entire recording. Taken in context, it
became clear to the district court that Trujillo knew that an unidentified woman placed his name


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on a forged check and that he passed that check. The district court recognized that Trujillo’s
admission was probative and found that it was not substantially outweighed by any potential for
unfair prejudice. The district court therefore reversed its prior ruling and admitted Trujillo’s
admission of guilt into evidence.
       Trujillo’s admission of guilt is manifestly probative. As the United States Supreme Court
has held, a defendant’s admission of guilt is “probably the most probative and damaging
evidence that can be admitted against him.” Bruton v. United States, 391 U.S. 123, 139 (1968).
A confession of guilt is a proper basis on which to premise a finding of guilt. Trujillo’s
admission of guilt, therefore, is not substantially outweighed by unfair prejudice. The district
court properly applied Rule 403 in weighing the evidence. On appeal, Trujillo argues that his
admission was merely marginally relevant because Trujillo’s acknowledgement that he was an
accessory to the crime might be interpreted differently than an outright admission of guilt.
Whether Trujillo’s statement, especially in context, can be taken as anything other than an
admission of guilt is an issue for the jury to determine; it is not an issue of relevance or
admissibility. Trujillo’s statement has the tendency of making the fact of his guilt “more
probable . . . than it would be without the evidence.” See I.R.E. 401. Indeed, as indicated by the
Supreme Court above, such a confession is likely the most probative evidence of guilt that could
be admitted. Bruton, 391 U.S. at 139.
       Trujillo also argues that admitting his recorded confession that he was an accessory to the
crime might lead to “confusion of the issues,” apparently because Trujillo seemed unsure about
the legal distinction between principals and accessories to crimes. Whether Trujillo thought he
was the principal or the accessory, however, was not the relevant issue for the jury to decide.
The relevant issue was whether or not Trujillo was guilty of forgery. As Trujillo acknowledges
in his appellant’s brief, Idaho has abolished the legal distinction between principals and
accessories. I.C. § 19-1430; State v. Johnson, 145 Idaho 970, 973, 188 P.3d 912, 915 (2008).
Whether Trujillo acted as a principal or an accessory in the forgery scheme, therefore, had no
potential to confuse the relevant issue of Trujillo’s guilt. The district court properly weighed
Trujillo’s highly probative admission of guilt against its minimal potential for unfair prejudice
under Rule 403 and properly admitted the recording. Trujillo has failed to establish any abuse of
the district court’s exercise of discretion under Rule 403.




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B.       Sentence Review
         Trujillo argues that, in light of allegedly mitigating factors, the district court abused its
discretion by imposing a sentence of fourteen years with three years fixed on his conviction for
forgery with a persistent violator enhancement. An appellate review of a sentence is based on an
abuse of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App.
2000).    Where a sentence is not illegal, the appellant has the burden to show that it is
unreasonable, and thus a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d
482, 490 (1992). A sentence may represent such an abuse of discretion if it is shown to be
unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324
(1982). A sentence of confinement is reasonable if it appears at the time of sentencing that
confinement is necessary “to accomplish the primary objective of protecting society and to
achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a
given case.” State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an
appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct
an independent review of the record, having regard for the nature of the offense, the character of
the offender, and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653
P.2d 1183, 1184 (Ct. App. 1982). When reviewing the length of a sentence, we consider the
defendant’s entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
         Considering the nature of Trujillo’s crime, and his criminal history, his sentence is not
excessive. In this case, the district court sentenced Trujillo on what appeared to be his seventh
and eighth felonies for, respectively, possession of methamphetamine and forgery with a
persistent violator enhancement. Through his three-decade criminal career, Trujillo has also
been convicted of numerous misdemeanors. His convictions include violent crimes, such as
domestic battery; theft crimes, such as forgery and burglary; drug-related crimes, such as
possession of methamphetamine, marijuana, and paraphernalia; and numerous traffic and
probation violations.
         Despite Trujillo’s troubling criminal history, and while noting that probation was not an
option in his case, the district court did not give up on Trujillo’s potential for rehabilitation.
Instead the court crafted a sentence that would give Trujillo enough time and incentive to work
hard and take advantage of programming. The sentence imposed by the district court thus serves


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the sentencing interests of protecting society from Trujillo’s criminality by placing him in
confinement, while also balancing those interests with the hope for Trujillo’s eventual
rehabilitation. Trujillo asserts that his substance abuse problems, difficult childhood, and lack of
educational attainment should have weighed more heavily in the district court’s analysis. These
matters were not overlooked by the district court; the district court in fact addressed Trujillo’s
troubled youth and his substance dependency in its sentencing. However, those circumstances
ultimately do not diminish the serious nature of Trujillo’s current crimes or the risk of continuing
criminal conduct he presents to society when not in confinement. Because Trujillo has failed to
show that his sentence is excessive, he has failed to establish an abuse of the district court’s
discretion.
                                                III.
                                         CONCLUSION
       The district court did not err in admitting the telephonic evidence of Trujillo’s admission
of guilt and the district court did not abuse its sentencing discretion. The judgment of conviction
for forgery, and the enhanced sentence of fourteen years with three years fixed, are affirmed.
       Judge GRATTON and Judge MELANSON CONCUR.




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