                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 40916

STATE OF IDAHO,                                   ) 2015 Opinion No. 68
                                                  )
          Plaintiff-Respondent,                   ) Filed: October 21, 2015
                                                  )
v.                                                ) Stephen W. Kenyon, Clerk
                                                  )
ROBERT DEAN HALL,                                 )
                                                  )
          Defendant-Appellant.                    )
                                                  )

          Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
          County. Hon. Michael R. McLaughlin, District Judge.

          Judgment of conviction for murder in the second degree and use of a deadly
          weapon during the commission of a crime, affirmed.

          Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler and Ben P.
          McGreevy, Deputy Appellate Public Defenders, Boise, for appellant. Jason C.
          Pintler argued.

          Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
          General, Boise, for respondent.
                    ________________________________________________

HUSKEY, Judge
          Robert Dean Hall appeals from his judgment of conviction for second degree murder and
use of a firearm during the commission of the murder. Specifically, Hall argues that the district
court erred in failing to properly instruct the jury on his justifiable homicide defense. He further
contends that the district erred in excluding Facebook statements and by admitting testimony
about the curriculum of Hall’s concealed weapons class. For the reasons set forth below, we
affirm.
                                                  I.
                       FACTUAL AND PROCEDURAL BACKGROUND
          Following a confrontation in the parking lot of Walgreens, the defendant, Robert Dean
Hall, shot E.C. in the head and the chest, killing him. Hall’s wife, K.H., was employed by E.C.’s
law firm and was engaged in a sexual relationship with E.C. K.H. testified that Hall was not

                                                  1
aware of her relationship with E.C. prior to the shooting, but several witnesses testified that Hall
was suspicious of the relationship and that he had confronted both K.H. and E.C about the nature
of their relationship prior to the shooting. In the weeks leading up to the shooting, Hall and E.C.
were involved in at least two heated conversations, one at E.C.’s office after Hall observed K.H.
and E.C. returning from lunch together and one at the Hall residence that occurred after Hall read
text messages sent by E.C. to K.H. These interactions did not include any physical violence
from either E.C. or Hall. E.C.’s wife and co-workers testified that in the weeks prior to his
death, E.C. was more aggressive and quarrelsome than usual. K.H. testified that E.C. was
pressuring her to divorce Hall and was becoming more demanding of her time and attention
outside of work.
       On the evening of the shooting, during the course of an argument about their relationship,
K.H. told Hall that she was having an affair, but that her relationship was with an attorney in
Oregon. Following the argument, K.H. left her home and drove to Walgreens, telling Hall she
needed to pick up a prescription. K.H. met E.C. in Walgreens’ parking lot and they left together
in his vehicle. K.H. and E.C. purchased gas at a nearby Fred Meyer, drove around looking at
houses, and then had intercourse in E.C.’s vehicle before returning to Walgreens’ parking lot.
During the time that E.C. and K.H. were together, K.H. received a telephone call from Hall who
inquired as to K.H.’s location and whether she was with E.C. While K.H. was on the telephone
with Hall, E.C. grabbed the phone and spoke to Hall telling him, “Yeah, f---ing crack your
head,” and “Yeah, just wait there. We’ll be there in a minute.” When E.C. and K.H. returned to
the parking lot, Hall was waiting for them and confronted the couple.
       K.H. was the only witness to the confrontation between Hall and E.C., and the record is
unclear as to exactly what happened prior to the shooting. K.H. testified that E.C. and Hall
argued, and that E.C. may have insulted Hall about his income and physical characteristics. In
response, Hall insulted E.C. for having an affair while he had a wife and five children, including
a young baby, at home. The evidence, although contradictory, reflects that K.H. testified she
saw E.C. push Hall, she walked away from the argument, heard “scuffling,” but did not turn
around again until after she heard gun shots. E.C. was shot in the chest and the head and died
almost instantly. Hall was transported to the hospital for a head wound that was attributed to a
bullet grazing his scalp.



                                                 2
       On the night of the shooting, Hall told responding officers that he had carried the gun1 to
the scene in the front pocket of his sweatshirt and that the gun fell out during the fight, that Hall
and E.C. fought over the gun, and that Hall believed he had been shot in the neck or the head but
did not explain how E.C. was shot. When Hall was later questioned, he was not able to clearly
explain the events that led to the death of E.C. During the trial, Hall admitted expert testimony
that he suffered amnesia as a result of the concussive impact of the injury caused by the gunshot.
       Hall was charged with first degree murder and use of a deadly weapon during the
commission of a crime. After a jury trial, he was convicted of second degree murder and use of
a firearm in the commission of that offense. He was sentenced to a unified sentence of thirty
years, with a determinate sentence of seventeen years. Hall appeals, challenging the district
court’s jury instructions, a pretrial evidentiary ruling excluding social media evidence, and an
evidentiary ruling allowing testimony regarding a concealed weapons course he had taken.
                                                 II.
                                           ANALYSIS
A.     Justifiable Homicide and Self-Defense Jury Instructions
       Hall raises two issues on appeal regarding jury instructions for his justifiable homicide
and self-defense claims. First, we are asked to determine whether the district court erred in
denying Hall’s request to instruct the jury with a justifiable homicide instruction consistent with
Idaho Criminal Jury Instruction 1514. Second, we address Hall’s claim that the district court
erred by instructing the jury with the pattern self-defense instructions, consistent with Idaho
Criminal Jury Instructions 1517, 1518, and 1519. The State asserts that Hall failed to preserve
these issues for appeal.
       Whether the jury has been properly instructed by the trial court is a question of law over
which this Court exercises free review. State v. Southwick, 158 Idaho 173, 181, 345 P.3d 232,
240 (Ct. App. 2014). This Court must review the instructions as a whole and determine if the
instructions fairly and accurately reflect the applicable law. Id. In a criminal case, a defendant is
entitled to have the jury properly instructed on his theory of the case. State v. Arrasmith,
132 Idaho 33, 43, 966 P.2d 33, 43 (Ct. App. 1998). Idaho Code § 19-2132(a) requires that the


1
       The gun used in the shooting was purchased by K.H. as a gift for Hall during their
marriage, and the record shows that Hall obtained a concealed weapons permit in 2006 and was
known to regularly carry the handgun.
                                                 3
trial court must provide to the jury being charged “all matters of law necessary for their
information” and must give a requested jury instruction if it determines that instruction to be
correct and pertinent. Under a four-part test, a requested instruction must be given where: (1) it
properly states the governing law; (2) a reasonable view of the evidence would support the
defendant’s legal theory; (3) it is not addressed adequately by other jury instructions; and (4) it
does not constitute an impermissible comment as to the evidence. State v. Fetterly, 126 Idaho
475, 476-77, 886 P.2d 780, 781-82 (Ct. App. 1994); see also State v. Evans, 119 Idaho 383, 385,
807 P.2d 62, 64 (Ct. App. 1991). To meet the second prong of this test, the defendant must
present at least some evidence supporting his or her theory and any support will suffice as long
as his or her theory comports with a reasonable view of the evidence. State v. Kodesh, 122 Idaho
756, 758, 838 P.2d 885, 887 (Ct. App. 1992). In other words, a defendant must present facts to
support each element of a prima facie case for each defense. State v. Camp, 134 Idaho 662, 665-
66, 8 P.3d 657, 660-61 (Ct. App. 2000). If the defendant fails to provide evidence supporting
any one of the necessary elements of a defense, the defendant has failed to meet his or her
burden and is not entitled to have the jury instructed on that defense. A trial court’s decision not
to instruct the jury in accordance with the defendant’s proposed instructions will be upheld when
the proposed instruction is: (1) erroneous in its statement of the law; (2) not supported by the
evidence or constitutes an impermissible comment on the evidence; or (3) adequately covered by
other instructions given by the court. Arrasmith, 132 Idaho at 43, 966 P.2d at 43.
       Further, the pattern Idaho Criminal Jury Instructions are presumptively correct statements
of law, and trial courts are expected to use them unless another instruction would more
adequately, accurately, or clearly state the applicable law. State v. Reid, 151 Idaho 80, 85, 253
P.3d 754, 759 (Ct. App. 2011). Both ICJI 1514 and 1517, at issue here, were approved by the
Idaho Supreme Court and both reference Idaho Code §§ 18-4009, 18-4010, and 18-4013 in the
comments sections of the instruction. The district court’s jury instructions will be upheld unless
it is determined that another instruction would have been more applicable to the charges and
evidence before the jury.
       1.      Hall sufficiently preserved his objection to the jury instructions
       The State argues that Hall failed to preserve this issue for appeal because he did not
object to the final jury instructions when the district court ruled that it would not include the
justifiable homicide instruction, ICJI 1514, and would only give the pattern self-defense

                                                 4
instructions. It further alleges that Hall’s argument on appeal regarding I.C. § 18-4009(1) and
ICJI 1514, discussed below, is not the argument Hall made before the district court and thus, the
issue is not preserved for appeal.
        Idaho Criminal Rule 30(b) provides that “no party may assign as error the giving of or
failure to give an instruction unless the party objects thereto before the jury retires to consider its
verdict, stating distinctly the instruction to which the party objects and the grounds of the
objection.” It has been held, however, that unless a defendant causes or plays a role in a trial
court’s decision to give (or not give) a specific instruction, then the defendant does not invite
error and may appeal instructions given. See State v. Adamcik, 152 Idaho 445, 476, 272 P.3d
417, 448 (2012); State v. Blake, 133 Idaho 237, 240, 985 P.2d 117, 120 (1999). “[R]equiring a
contemporaneous objection prevents the litigant from sandbagging the court, i.e., ‘remaining
silent about his objection and belatedly raising the error only if the case does not conclude in his
favor.’” State v. Longest, 149 Idaho 782, 784, 241 P.3d 955, 957 (2010) (quoting Puckett v.
United States, 556 U.S. 129, 134 (2009)).
        Prior to trial, Hall filed proposed jury instructions that included a modified version of
ICJI 1514, justifiable homicide defense, along with ICJI 1516, excusable homicide defense. At
the first jury instruction conference, the court provided a proposed set of instructions that
included the ICJI self-defense instructions but Hall objected that the court failed to include the
requested justifiable homicide and excusable homicide instructions.             At the second jury
instruction conference, the court’s proposed jury instructions included the justifiable homicide
instruction2 and the self-defense instructions, and the parties argued the use of the justifiable
homicide instruction, in addition to, or as a replacement of, the self-defense instructions
proposed. At the final jury instruction conference, the court informed the parties, on the record,
that it had withdrawn the justifiable homicide instruction because the court determined that the
self-defense instructions adequately covered the justifiable homicide defense and because the
justifiable homicide instruction was repetitive and likely to be confusing to the jury. Neither
party objected to the final set of jury instructions.



2
        The record does not include a copy of the court’s proposed instructions from this hearing
but the transcript shows that the parties discussed the justifiable homicide, excusable homicide,
and self-defense instructions with the court.


                                                   5
       Hall has adequately preserved this issue for appeal. See State v. Pearce, 146 Idaho 241,
248, 192 P.3d 1065, 1072 (2008). He raised his objection several times thereby avoiding any
“sandbagging” or surprise to the State. When the district court did not include the justifiable
homicide instruction in the first set of proposed instructions, Hall objected. When the court
included the instruction in the proposed final set of instructions, it required Hall to argue and
justify why that instruction should be included instead of the self-defense instruction. It is
undisputed that Hall agreed that the self-defense instruction was appropriate, but the record also
shows that counsel’s concession was grounded in the argument that both the justifiable homicide
instruction and the self-defense instruction adequately covered the issue. At all times prior to the
final jury instruction conference, Hall advocated for the inclusion of the justifiable homicide
instruction. Because Hall offered the instruction and objected to the failure to include it, albeit
before the final instruction conference, the issue is preserved for appellate review.
       2.      Hall’s justifiable homicide instruction was not supported by a reasonable
               view of the evidence
       On appeal, Hall argues that the district court erred in failing to provide ICJI 1514 3 to the
jury after he requested a modified version of ICJI 1514 be submitted to the jury. Specifically,

3
       Idaho Criminal Jury Instruction 1514 states:
               The defendant contends as a defense in this case that the killing was
       justifiable because the defendant was [description of justification; e.g. an
       excusable homicide such as attempting to stop the commission of a robbery].
               Under the law, homicide is justifiable if
               [committed while resisting an attempt to murder any person, or to commit
       a felony, or to do some great bodily injury upon any person.]
               [committed in defense of habitation, property or person, against one who
       manifestly intends or endeavors, by violence or surprise, to commit a felony, or
       against one who manifestly intends and endeavors, in a violent, riotous or
       tumultuous manner, to enter the habitation of another for the purpose of offering
       violence to any person therein. However, the bare fear of such acts is not
       sufficient unless the circumstances are sufficient to create such a fear in a
       reasonable person and the defendant acted under the influence of such fears
       alone.]
               [committed in the lawful defense of the defendant, or of a wife or
       husband, parent, child, master, mistress or servant of the defendant, when there is
       reasonable grounds to apprehend a design to commit a felony or to do some great
       bodily injury and imminent danger of such design being accomplished; but such
       person, or the person on whose behalf the defense was made, if that person was
       the assailant or engaged in mortal combat, must really and in good faith have
       endeavored to decline any further struggle before the homicide was committed.
                                                 6
Hall focuses his argument on the district court’s decision not to instruct the jury on the first
portion of ICJI 1514 that corresponds to Idaho Code § 18-4009(1). Hall argues that the plain
language of I.C. § 18-4009(1) applies when a homicide is committed during an actual, ongoing
attack of violence or great bodily injury which is consistent with the evidence in this case.
       It has long been held that Idaho Code § 18-4009 is the relevant law for self-defense in a
homicide case. State v. Rodriguez, 93 Idaho 286, 291, 460 P.2d 711, 716 (1969). Idaho Code
§ 18-4009(1) provides that a homicide is justifiable if it is committed “when resisting any
attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any
person.” Hall’s proposed modified ICJI 1514 requested that the jury be instructed that the
homicide in this case would be justifiable if “[t]he homicide was committed while resisting an
attempt to do great bodily injury upon any person, including the defendant.” Hall argues this
code section and the relevant pattern jury instruction should have been given because he killed
E.C. while resisting an actual, ongoing attack intended to cause great bodily injury to Hall.
       Hall asks this Court to infer from the evidence that E.C. was the initial aggressor and was
actively committing great bodily injury on Hall at the time of the shooting. Hall relies primarily
on three pieces of evidence: (1) testimony that prior to the shooting he was sad but not angry
after his fight with K.H.; (2) the comments E.C. made during the telephone call immediately
prior to the shooting; and (3) K.H.’s testimony that she saw E.C. push Hall just before the scuffle
ensued and she walked away. However, there is also evidence that Hall brought the gun to the
parking lot, carried it unholstered in the front pocket of his sweatshirt, and argued with E.C. in
the parking lot.
       Hall’s argument that I.C. § 18-4009(1) applies relies, in part, on the alleged threat made
by E.C. over the phone minutes before the confrontation. However, this does not establish there



       However, the bare fear of such acts is not sufficient unless the circumstances are
       sufficient to create such a fear in a reasonable person and the defendant acted
       under the influence of such fears alone.]
                [when necessarily committed in attempting, by lawful ways and means, to
       apprehend any person for any felony committed, or in lawfully suppressing any
       riot, or in lawfully keeping and preserving the peace.]
                The burden is on the prosecution to prove beyond a reasonable doubt that
       the homicide was not justifiable. If there is a reasonable doubt whether the
       homicide was justifiable, you must find the defendant not guilty.


                                                 7
was an actual, ongoing attack, but only that there may have been the threat of a future attack. In
addition, despite this telephonic threat, Hall waited at Walgreens for K.H. and E.C. to return in
order to confront them about their activities.
       The only witness at the scene, K.H., had various versions of the events. When K.H. was
interviewed immediately after the shooting, she stated that E.C. and Hall were arguing, K.H.
turned to walk away and she then heard two shots followed by a single shot. After Hall had been
arrested, K.H. immediately reconciled with Hall and during various recorded telephone calls,
K.H. mentioned she was going to “vindicate” Hall. Thereafter, K.H.’s statement changed. She
then testified that E.C. and Hall argued, E.C. pushed Hall, and K.H. turned and walked away.
She testified she heard one shot, followed by two shots. Nonetheless, under any of the scenarios
proffered by K.H. or Hall, there is no evidence that there was an actual, ongoing attack that was
likely to result in the death of or great bodily harm to Hall at the time Hall fired the gun, killing
E.C. Even if there was a push or a struggle, without any further evidence, we cannot find there
was evidence of an actual, ongoing attack sufficient to justify the use of deadly force.
       We cannot conclude that a reasonable view of the evidence before the district court and
the jury rose to a showing that there was an actual, ongoing attack by E.C. and that great bodily
injury was being committed against Hall at the time he shot E.C. Thus, Hall was not entitled to
an instruction pursuant to I.C. § 18-4009(1) as opposed to the instruction given by the court
because the proposed justifiable homicide instruction was not supported by the evidence and, as
discussed below, was adequately covered by other instructions given by the court.
       3.      The self-defense instruction adequately covered justifiable homicide
       The second jury instruction issue on appeal is Hall’s argument that the district court erred
in instructing the jury with ICJI 1517,4 1518, and 1519 (the self-defense instructions).5 Hall

4
       ICJI 1517 states as modified for homicide:
       A homicide is justifiable if the defendant was acting in [self-defense] [defense of
       another].
                In order to find that the defendant acted in [self-defense] [defense of
       another], all of the following conditions must be found to have been in existence
       at the time of the [killing] [striking]:
                1. The defendant must have believed that [the defendant] [another person]
       was in imminent danger of [death or great bodily harm] [bodily harm].
                2. In addition to that belief, the defendant must have believed that the
       action the defendant took was necessary to save [the defendant] [another person]
       from the danger presented.
                                                 8
argues that ICJI 1517 was not the proper statement of self-defense law applicable to the facts of
this case because this instruction requires the jury to engage in a different analysis of the facts
than it would if it was applying I.C. § 18-4009(1).
       The Idaho Supreme Court has approved ICJI 1517 for use in cases where the defendant
claims the homicide was justifiable under a self-defense theory and is therefore considered to be
presumptively correct if it is applicable and can be accurately applied to the facts of this case.
See ICJI 1517. See also State v. Reid, 151 Idaho 80, 85, 253 P.3d 754, 759 (Ct. App. 2011)
(citing State v. Ruel, 141 Idaho 600, 602, 114 P.3d 158, 160 (Ct. App. 2005)) (“The pattern ICJI
instructions are presumptively correct. The Idaho Supreme Court approved the pattern jury
instructions and has recommended that the trial courts use the instructions unless a different
instruction would more adequately, accurately, or clearly state the law.”).
       ICJI 1517 requires that the following conditions must be met in order for a homicide to
be considered justifiable:
       (1)   the defendant believed he was in imminent danger of death or great bodily
       harm;




               3. The circumstances must have been such that a reasonable person, under
       similar circumstances, would have believed that [the defendant] [another person]
       was in imminent danger of [death or great bodily injury] [bodily injury] and
       believed that the action taken was necessary.
               4. The defendant must have acted only in response to that danger and not
       for some other motivation.
               [5. When there is no longer any reasonable appearance of danger, the right
       of (self-defense) (defense of another) ends.]
               In deciding upon the reasonableness of the defendant’s beliefs, you should
       determine what an ordinary and reasonable person might have concluded from all
       the facts and circumstances which the evidence shows existed at that time, and not
       with the benefit of hindsight.
               The danger must have been present and imminent, or must have so
       appeared to a reasonable person under the circumstances. A bare fear of [death or
       great bodily injury] [bodily injury] is not sufficient to justify a homicide. The
       defendant must have acted under the influence of fears that only a reasonable
       person would have had in a similar position.
               The burden is on the prosecution to prove beyond a reasonable doubt that
       the homicide was not justifiable. If there is a reasonable doubt whether the
       homicide was justifiable, you must find the defendant not guilty.
5
       These were given as the court’s Jury Instruction Nos. 33, 34, and 35.
                                                 9
       (2)     the defendant also believed that the action he took was necessary to save
       himself from the danger presented;
       (3)     that the circumstances were such that a reasonable person, under those
       circumstances would have believed that he was in imminent danger of death or
       great bodily harm, and thus that action was necessary; and
       (4)     that the defendant acted in response to the danger and not for some other
       motivation.
       This jury instruction is an accurate statement of the law and adequately addresses the
facts of the case. We have determined that the evidence presented to the jury did not support
Hall’s claim that he was the victim of an actual, ongoing attack by E.C. However, it is clear
from the evidence that there was a confrontation between E.C. and Hall and thus, pursuant to
ICJI 1517, in order to find the homicide justifiable, the jury was required to find that Hall
perceived the threat of violence from E.C. and formed a belief that danger was imminent, prior to
responding with any kind of self-defense. We cannot conclude that the district court erred in its
decision to instruct the jury with the ICJI self-defense instructions given the evidence presented
to the jury about the nature of the confrontation.
        We do not find merit in Hall’s argument that ICJI 1517 and 1518 violate Hall’s
constitutional right to due process. First, while ICJI 1517 has been approved for both justifiable
homicide and self-defense against battery, the court is required to properly modify the instruction
so it is consistent with the facts of the case. See comments, ICJI 1517. For example, the first
element of ICJI 1517 must be modified to reflect that the defendant was in imminent danger of
death or great bodily harm in order to justify a homicide committed in self-defense. In addition,
the instruction clearly places the burden on the State to prove beyond a reasonable doubt that the
homicide was not justifiable.
       Second, ICJI 1518 is consistent with Idaho law, even for justifiable homicides committed
under I.C. § 18-4009(1). The laws of this state require a defendant to act with a reasonable belief
that self-defense is necessary because he is in danger of great bodily harm, even under an
ongoing threat of violence. See State v. Grover, 35 Idaho 589, 598, 207 P. 1080, 1083 (1922);
State v. Wilson, 41 Idaho 616, 635, 243 P. 359, 364 (1925). This jury instruction does not lower
the State’s burden of proof and does not impose additional requirements on a defendant claiming
self-defense.
       In this case, the record shows that the district court carefully considered all the jury
instructions presented by the parties applicable to justifiable homicide and self-defense, and


                                                 10
ultimately determined that ICJI 1517, 1518, and 1519 were the proper instructions for this case.
Those instructions are approved pattern instructions and are accurate statements of law
applicable to the facts of the case as presented to the jury. Therefore, we hold that the district
court properly instructed the jury on Hall’s theory of self-defense by utilizing ICJI 1517 and the
related self-defense instructions, and that the instructions provided to the jury were consistent
with the evidence admitted at trial.
B.     The District Court Correctly Excluded Evidence of the Facebook Statements
       Hall challenges the district court’s pretrial order excluding Facebook statement evidence.
On appeal, Hall argues that the district court erred in denying Hall’s motion to admit postings
from E.C.’s Facebook account that tended to support Hall’s self-defense claim and to show
E.C.’s reputation for being violent, aggressive, and quarrelsome.
       In a pretrial motion, Hall sought to admit numerous items of evidence, including
Facebook statements, pursuant to Idaho Rules of Evidence 404(a)(2), 404(b), 405(b), and 406.6
Hall argued that the Facebook posts were relevant because the statements showed E.C.’s “state
of mind,” and the evidence supported Hall’s theory of defense that E.C. was the first aggressor
and the shooting was done in self-defense. Generally, the Facebook posts included statements by
E.C. that he would like to fight in order to protect someone that he cared about.
       The parties submitted this issue to the district court on the briefs, without oral argument,
and the only evidence or other support for their arguments was copies of the actual Facebook
posts. Based on the stipulation of parties, the district court issued a decision without oral
argument and determined that the Facebook statements did not specifically identify another
person and that it was speculative to assume the statements were referring to the defendant. The
district court’s order excluded the Facebook evidence from use at trial because it was both
inadmissible hearsay evidence and irrelevant pursuant to I.R.E. 403.
       Evidence that is relevant to a material and disputed issue concerning the crime charged is
generally admissible. State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008). 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; Stevens, 146 Idaho at 143, 191 P.3d at 221. Whether a fact is of consequence or

6
        Hall’s motion did not initially address I.R.E. 803(3) but the parties’ subsequent briefing
on this issue was limited to I.R.E. 403 and 803(3).
                                                11
material is determined by its relationship to the legal theories presented by the parties. State v.
Johnson, 148 Idaho 664, 671, 227 P.3d 918, 925 (2010). Testimony that amounts to speculation
or conjecture is not relevant and therefore not admissible. State v. Marks, 156 Idaho 559, 563,
328 P.3d 539, 543 (Ct. App. 2014). We review questions of relevance de novo. State v.
Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993); State v. Aguilar, 154 Idaho 201,
203, 296 P.3d 407, 409 (Ct. App. 2012). The trial court’s balancing of the probative value of the
evidence against the danger of unfair prejudice will not be disturbed absent a showing that the
trial court abused its discretion. State v. Folk, 157 Idaho 869, 876-77, 341 P.3d 586, 593-94 (Ct.
App. 2014).
       Hearsay is defined as a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted. I.R.E. 801(c);
State v. Gomez, 126 Idaho 700, 704, 889 P.2d 729, 733 (Ct. App. 1994). Hearsay is inadmissible
unless otherwise provided by an exception in the Idaho Rules of Evidence or other rules of the
Idaho Supreme Court. I.R.E. 802. The hearsay exception applicable in this case is the “Then
Existing Mental, Emotional, or Physical Condition” exception under I.R.E. 803(3), which
provides that statements of “the declarant’s then existing state of mind, emotion, sensation, or
physical condition” are not excluded by the hearsay rule.
       Whether a statement should be admitted as a “state of mind” hearsay exception is
committed to the trial court’s discretion, and that decision will not be disturbed on appeal absent
an abuse of that discretion. Folk, 157 Idaho at 875, 341 P.3d at 592. When a trial court’s
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry
to determine: (1) whether the lower court correctly perceived the issue as one of discretion;
(2) whether the lower court acted within the boundaries of such discretion and consistently with
any legal standards applicable to the specific choices before it; and (3) whether the lower court
reached its decision by an exercise of reason. Id.
       Limited circumstances exist in which statements made by a murder victim to a third party
are admissible under I.R.E. 803(3)’s state of mind exception to the hearsay rule. State v.
Shackelford, 150 Idaho 355, 364, 247 P.3d 582, 591 (2010). Statements of the declarant-victim’s
state of mind may be admitted “only after a determination that (1) the declaration is relevant, and
(2) the need for and value of such testimony outweighs the possibility of prejudice to the
defendant.” Id. (citing State v. Garcia, 102 Idaho 378, 382, 630 P.2d 665, 669 (1981)). The

                                                 12
Court has recognized “four well-defined categories in which a declarant-victim’s state of mind is
relevant because of its relationship to the legal theories presented by the parties.” Id. This rule
applies when the defendant: (1) claims self-defense as justification for the killing; (2) seeks to
build his defense around the fact that the deceased committed suicide evidence introduced which
tends to demonstrate that the victim made statements inconsistent with a design to take his or her
own life is relevant; (3) claims the killing was accidental; and (4) when a specific “mens rea” is
in issue. Id. (citing State v. Goodrich, 97 Idaho 472, 477 n.7, 546 P.2d 1180, 1187 n.7 (1976)).
Hall relies on the first category and argues that the Facebook statements support his claim of
self-defense because the statements tended to show the emotional and mental condition of E.C.
prior to the shooting.
         Here, the district court correctly perceived this decision as discretionary and we conclude
that the district court properly exercised its discretion. The motion at issue was a pretrial motion,
made at a time when the district court did not have the benefit of the evidence and testimony
admitted at trial. Support for Hall’s argument on appeal, on the other hand, relies on the
evidence and testimony adduced at trial but such evidence was not available to the district court
at the time of the pretrial ruling; the district court’s decision was made solely on the written
arguments of the parties and the language of the Facebook posts. While the Facebook statements
indicate a certain level of aggressiveness and desire to fight, the posts do not identify a specific
person as the target of that aggressiveness and therefore, the applicability to Hall, specifically, is
speculative.
         Since the Facebook statements are speculative, and therefore not relevant, they are not
admissible hearsay under I.R.E. 803(3)’s “state of mind” hearsay exception. Just as the district
court could not read context and factual support into the statements on the briefing of the parties,
we cannot use evidence that was not before the district court at the time of the ruling to find
error.   The district court’s ruling to exclude the Facebook statements as speculative and
irrelevant was not an abuse of discretion.
C.       The District Court Did Not Err in Admitting Evidence of the Concealed Weapons
         Course Curriculum
         Joseph Toluse, a Use of Deadly Force instructor, testified in the State’s case-in-chief
about the curriculum of the concealed weapons course that Hall attended in November 2006, in
order to obtain a permit to carry a concealed weapon. Over Hall’s objection to the testimony on
relevance grounds, the district court determined the testimony was relevant and allowed Toluse
                                                 13
to offer limited testimony. The district court found the evidence to be relevant because there was
evidence that K.H. purchased a weapon for Hall, Hall had a concealed weapons permit, Hall was
known to carry that firearm, and Hall brought the weapon used to kill E.C. to Walgreens. The
district court limited the testimony to the content of the curriculum at the time Hall took the
course and did not allow Toluse to testify as to the law of self-defense or use of force. A limiting
instruction, consistent with this ruling, was provided to the jury during Toluse’s testimony. On
appeal, Hall argues that the testimony was not relevant and that the district court erred in
allowing the jury to hear the testimony that could have confused or misled the jury on this issue.
       As previously stated, evidence that is relevant to a material and disputed issue concerning
the crime charged is generally admissible. Stevens, 146 Idaho at 143, 191 P.3d at 221. 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; Stevens, 146 Idaho at 143, 191 P.3d at 221. Whether a fact is of consequence or
material is determined by its relationship to the legal theories presented by the parties. Johnson,
148 Idaho at 671, 227 P.3d at 925. We review questions of relevance de novo. Raudebaugh,
124 Idaho at 764, 864 P.2d at 602; Aguilar, 154 Idaho at 203, 296 P.3d at 409. The trial court’s
balancing of the probative value of the evidence against the danger of unfair prejudice will not be
disturbed absent a showing that the trial court abused its discretion. Folk, 157 Idaho at 876-77,
341 P.3d at 593-94. In reviewing a trial court’s decision to admit challenged evidence, this
Court will defer to the trial court’s findings of fact that are supported by substantial and
competent evidence because it is within the power of the trial court to “assess the credibility of
witnesses, resolve factual conflicts, weigh evidence, and draw factual inferences.” State v.
Besaw, 155 Idaho 134, 140, 306 P.3d 219, 225 (Ct. App. 2013). This Court will not re-examine
the evidence and substitute our judgment for that of the trial court at the time of the contested
evidentiary ruling when there is substantial and competent evidence, and the trial court did not
abuse its discretion in making this decision. Id. at 141, 306 P.2d at 226. Even when a trial court
admits relevant evidence, it may determine that it should limit the extent to which the jury may
use that evidence. In that event, the district court may cure any potential prejudice with a
limiting instruction to the jury. State v. Parmer, 147 Idaho 210, 222, 207 P.3d 186, 198 (Ct.
App. 2009). In this situation, we presume that the jury followed the court’s instructions and



                                                14
reviewed the trial court’s decision to admit the evidence with the limiting instruction for abuse of
discretion. Id.
       The district court, in exercising its discretion to admit evidence, applied the I.R.E. 403
balancing test and determined that the limited testimony of Toluse was probative given the
evidence in the record about Hall’s possession and use of the firearm used to kill E.C. There was
substantial and competent evidence in the record that K.H. purchased the weapon used to shoot
E.C., that the defendant was known to carry a concealed weapon, and that he was known to carry
the firearm used to kill E.C. The district court determined that Hall’s knowledge and experience
with the weapon was a fact of consequence and thus, relevant to the issue of who was the first
aggressor. In addition, the court found that the training Hall received to obtain his concealed
weapons permit was relevant and the probative value of this evidence outweighed any potential
prejudice to Hall. This Court finds that the district court properly analyzed the evidence under
the I.R.E. 403 balancing test.
       In addition, the district court further limited any potential prejudice from the testimony by
limiting Toluse’s testimony to the curriculum of the concealed weapons course and giving the
jury the limiting instruction. The district court did not abuse its discretion in admitting the
limited testimony of Toluse. Further, the limiting instruction provided to the jury was proper and
minimized any potential prejudice to the defendant that might have arisen from Mr. Toluse’s
testimony on the concealed weapons course curriculum. The district court’s decision to admit
the limited testimony of Toluse is affirmed.
                                                 III.
                                          CONCLUSION
         The district court did not err in failing to give Hall’s modified jury instruction consistent
with I.C. § 18-4009(1), the district court correctly instructed the jury on self-defense, and the
district court did not abuse its discretion in either excluding E.C.’s Facebook posts or admitting
the testimony of Toluse. Thus, we affirm the judgment of conviction entered.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




                                                 15
