                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                   Docket Nos. 38576/38577

STATE OF IDAHO,                                 )
                                                )     2012 Opinion No. 57
       Plaintiff-Respondent,                    )
                                                )     Filed: November 2, 2012
v.                                              )
                                                )     Stephen W. Kenyon, Clerk
JERRY LEE McCLAIN,                              )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Ronald J. Wilper, District Judge.

       Judgments of conviction for domestic violence, intimidating a witness, and
       violating a no contact order, affirmed. Sentence vacated and case remanded.

       Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Jerry Lee McClain appeals from judgments of conviction for domestic violence,
intimidating a witness, and violating a no contact order. McClain asserts that the district court
erred by admitting evidence of his prior misconduct and that the State presented insufficient
evidence to support the jury’s finding that he is a persistent violator of the law. We affirm
McClain’s convictions but reverse the persistent violator sentence enhancement and remand for
resentencing.
                                               I.
                                       BACKGROUND
       McClain was charged with rape, Idaho Code § 18-903(a), and domestic violence
committed in the presence of a child, I.C. § 18-918(2), (4). The State alleged that McClain
kicked his wife and grabbed her by the hair when she stopped performing a sexual act that he


                                               1
demanded, and that he then had intercourse with her against her will, all while their two-year-old
son was in an adjacent room. McClain was also charged, in a separate case, with violating a no
contact order, I.C. § 18-920, and intimidating a witness, I.C. § 18-2604, based on allegations that
after a no contact order had been issued, he repeatedly called his wife from jail and asked her to
change her story. The State filed a second information in each case alleging that McClain was
subject to a persistent violator sentence enhancement pursuant to I.C. § 19-2514 because he had
previously been convicted of at least two felonies. 1 The two cases were consolidated for trial.
       Approximately one month prior to trial, the State sought a ruling on the admissibility of
evidence that would demonstrate that McClain had a history of abusing his wife and other
women. The State anticipated that several witnesses, including McClain’s wife and mother-in-
law, would testify to prior acts of domestic violence. The State asserted that the evidence was
admissible under Idaho Rule of Evidence 404(b) to show McClain’s intent. The district court
ruled that this evidence of prior domestic violence would be inadmissible at trial because the
danger of unfair prejudice substantially outweighed any probative value.
       Shortly before trial, McClain made a motion in limine to redact all but a seven-minute
portion of a sixty-eight minute video recording of a police interview with McClain that was
conducted shortly after McClain’s arrest. 2 Although the video did not contain any admission by
McClain of the charged offenses or of any other violence towards his wife, the State argued that
the video was relevant to show McClain’s claims to the detective--that he had a warm and
positive relationship with his wife--which would contrast sharply with testimony from the
victim, the victim’s mother, and a friend of the victim concerning the nature of the relationship,
and that the video was also relevant because it showed McClain presenting an “outlandish”
explanation to the detective as to why and how his wife’s mother and friend must have
persuaded her to falsely accuse him of the alleged violence and sexual assault. McClain broadly
asserted that any probative value of statements made on the video was substantially outweighed
by unfair prejudice and that its admission would violate the court’s previous ruling disallowing


1
        The State originally alleged that McClain had been previously convicted of five felonies,
but three of the allegations of prior felony convictions were withdrawn by the State shortly
before the persistent violator stage of trial.
2
        The original interview was approximately two hours long. The State redacted the video
to a length of sixty-eight minutes to remove other impermissible evidence.

                                                 2
evidence of prior domestic violence. The district court reviewed the recording, found it relevant,
found that its probative value was not outweighed by the risk of unfair prejudice, and held the
full sixty-eight minutes of the video to be admissible. On the second day of trial, McClain
objected to specific portions of the video in which he could be heard to say that he had put his
children through “bullshit” before, that he had “hurt” people before, and that in the past he had
been the kind of person who could “snap.” McClain urged that these were inadmissible under
Idaho Rule of Evidence 404(b) and the district court’s previous ruling in his favor. The district
court overruled his objections and permitted the State to play the video for the jury. The jury
ultimately found McClain not guilty of rape, but guilty of domestic violence, intimidation of a
witness, and violation of a no contact order.
        The jury was then asked to determine whether McClain was a persistent violator of the
law, which would make him subject to an enhancement of his sentences. The State alleged that
McClain had previously been convicted of possession of a controlled substance in Idaho and
assault in the third degree in Oregon, and that both crimes were felony offenses. The State’s
evidence consisted of certified copies of the judgments of conviction for both offenses and the
criminal indictment for the assault charge from Oregon. During closing arguments, defense
counsel argued that the State’s evidence of the Oregon conviction was insufficient because the
documentation did not indicate whether the conviction for assault in the third degree was a
felony or misdemeanor under Oregon law. After a lengthy deliberation, the jury found McClain
to be a persistent violator.
        The district court imposed concurrent unified twenty-year sentences with ten-year
determinate terms for domestic violence and intimidating a witness, both including a persistent
violator enhancement; and a concurrent one-year sentence for the violation of a no contact order.
McClain appeals, contending that the district court erred in admitting the video of his police
interview and that the evidence was insufficient to prove that he was a persistent violator.
                                                II.
                                           ANALYSIS
A.      Admission of the Recorded Interview
        McClain asserts that admission of the recording of his police interview violated Idaho
Rule of Evidence 404(b) because it included his statements admitting “other crimes, wrongs, or




                                                 3
acts,” which are “not admissible to prove the character of a person in order to show action in
conformity therewith.” I.R.E. 404(b).
       When determining the admissibility of evidence to which a Rule 404(b) objection has
been made, the trial court must conduct a two-tiered analysis. State v. Pepcorn, 152 Idaho 678,
688, 273 P.3d 1271, 1281 (2012); State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185, 1188 (2009);
State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct. App. 2002). First, the evidence of
prior misconduct must be relevant, as a matter of law, to a material and disputed issue other than
the character and criminal propensity of the defendant. Grist, 147 Idaho at 52, 205 P.3d at 1188;
Avila, 137 Idaho at 412, 49 P.3d at 1262. As part of this consideration, the trial court must
determine whether there is sufficient evidence of the prior acts that a reasonable jury could
believe the conduct actually occurred. Pepcorn, 152 Idaho at 689, 273 P.3d at 1282; Grist, 147
Idaho at 52, 205 P.3d at 1188; State v. Whitaker, 152 Idaho 945, 948, 277 P.3d 392, 395 (Ct.
App. 2012).     Second, the trial court must engage in a balancing under Idaho Rule of
Evidence 403 to determine whether the danger of unfair prejudice substantially outweighs the
probative value of the evidence. Pepcorn, 152 Idaho at 689, 273 P.3d at 1282; Avila, 137 Idaho
at 412, 49 P.3d at 1262. On appeal, this Court defers to the trial court’s determination that there
is sufficient evidence of the prior misconduct if it is supported by substantial and competent
evidence in the record. Whitaker, 152 Idaho at 948, 277 P.3d at 395; State v. Parmer, 147 Idaho
210, 214, 207 P.3d 186, 190 (Ct. App. 2009). We exercise free review, however, of the trial
court’s relevancy determination. State v. Sheldon, 145 Idaho 225, 229, 178 P.3d 28, 32 (2008);
State v. Porter, 130 Idaho 772, 783, 948 P.2d 127, 138 (1997); State v. Scovell, 136 Idaho 587,
590, 38 P.3d 625, 628 (Ct. App. 2001). The trial court’s balancing of the probative value of the
evidence against the danger of unfair prejudice will not be disturbed unless we find an abuse of
discretion. Grist, 147 Idaho at 52, 205 P.3d at 1188; Scovell, 136 Idaho at 590, 38 P.3d at 628.
       McClain first asserts that the district court erred by failing to engage in the required
balancing inquiry to weigh whether the probative value of the evidence was outweighed by the
risk of unfair prejudice. This contention is not borne out by the record. After having reviewed
the video and having heard argument on McClain’s initial objection to the videotape, the court
expressly stated its determination that the probative value of the video’s content was not
substantially outweighed by the danger of undue prejudice. When McClain again objected to the
same video later in the trial, the court stood by its earlier ruling. The fact that the court did not


                                                 4
repeat its balancing analysis on the record in response to McClain’s second objection does not
demonstrate an omission of a balancing analysis.
       Nor has McClain demonstrated any error in the district court’s determination that the
challenged portions of the video were not inadmissible under I.R.E. 404(b) and 403. The
statements that McClain contends on appeal should have been excluded as evidence of prior bad
acts are admissions by McClain that he had put his children through “bullshit,” that he had hurt
his wife and other people, and that he was a person who could “snap.” When viewed in context,
these were hardly self-damning confessions. Near the beginning of the interview, the detective
asked McClain about his family life. McClain asserted that he had a good relationship with his
wife and their son. McClain compared his current relationship with his wife and son to his
previous relationships with his other children, explaining that his first child was born when
McClain was seventeen, before he knew how to be a good father. At one point McClain stated:
“I think back about all the other bullshit I put my other kids through. I have ten kids. I put my
other kids through a lot of shit man.” McClain then expressed his love for his wife and son, and
explained that he had worked hard to provide them with a good home. At a later point in the
interview, McClain explained that every time his wife had gone to jail, he had helped to bail her
out, and he expressed disappointment that nobody bailed him out of jail. He then stated: “I
don’t want somebody I love to be in jail. My wife has--my wife has, man like I said, she hurt
me. But how many people in my life have I hurt and been forgiven for.” Finally, near the end of
the interview, the detective explained that he understood that people sometimes “snap” in
stressful or difficult situations. McClain stated: “I’ve been that person,” but adamantly denied
ever physically abusing his wife.
       It is highly doubtful that these statements even fall within the purview of Rule 404(b) as
evidence of “character” or “other crimes, wrongs or acts”; they are little more than
acknowledgements by McClain of normal human foibles--that he has been an imperfect father,
that he had sometimes hurt other people’s feelings, and that he had sometimes snapped under
stress. Even if these acknowledgements by McClain constitute evidence of other acts indicative
of character that are subject to Rule 404(b) analysis, they are not a type of evidence that presents
a risk of unfairly prejudicing the jury. The statements are brief and vague and include no
admission of any particular misconduct. Although the probative value of the video may have
been modest, we discern in it no appreciable risk of unfair prejudice that could outweigh that


                                                 5
probative value. Therefore, we are not persuaded that the district court abused its discretion in
admitting the challenged portions of the video.
         Finally, even if we assume error in the admission of the video, such error was harmless.
Trial error will be deemed harmless if the reviewing court is convinced beyond a reasonable
doubt that the error did not contribute to the verdict. State v. Perry, 150 Idaho 209, 227, 245
P.3d 961, 979 (2010). At trial, the victim testified to a violent sexual encounter with her
husband, McClain, while their two-year-old son was in a nearby room. According to the victim,
McClain demanded that she continue performing a sexual act, and when she stopped, he pulled
her hair and cursed at her. When she again refused, he kicked her in the head, and then
continued to kick her until she fell off the bed. When she began to scream, McClain straddled
her on the floor, again cursed at her, told her it would be the last time she ever screamed, covered
her mouth, and struck her in the face multiple times. McClain then ordered her to submit to
sexual intercourse. Later that day, the victim was interviewed by the police and gave a brief
account of her injuries to a registered nurse. The nurse testified that the victim reported that she
had been kicked in the head and was experiencing pain in her head and neck. The nurse took
more than twenty-five photographs to document the victim’s injuries. The photographs, which
were introduced at trial, show red marks on the victim’s neck and various bruising and abrasions
on the victim’s arms, legs, and shoulders.
         The State also introduced recordings of three telephone calls made by McClain to the
victim while McClain was in jail. During the phone calls McClain repeatedly asked her to tell
the prosecutors that the charges were unfounded, and to stop telling people that he had kicked
her in the head. McClain apologized to the victim, saying that he was “sorry about everything,”
and asked her not to leave him. At one point, McClain said that he knew he “f---ed up,” and he
later stated: “I promise you I will not let you down again.” During a recorded call to another
individual, McClain seems to state that if he could have another chance, he would not mess up
again.
         Considering the strength of the State’s evidence, and the brevity and vagueness of the
challenged portions of the police interview, we are convinced beyond a reasonable doubt that
even if it was erroneous to admit the video without further redactions, that error was harmless in
this case.




                                                  6
B.      Persistent Violator Enhancement
        The State sought to prove that McClain had at least two prior felony convictions and was
therefore subject to enhanced penalties on the domestic violence and intimidation of a witness
charges pursuant to I.C. § 19-2514. The State relied on evidence that he had been convicted of
possession of a controlled substance in Idaho and assault in Oregon. McClain asserts that the
evidence of his assault conviction from Oregon did not show whether it was a felony or a
misdemeanor, and therefore the evidence was insufficient to sustain a finding that he was a
persistent violator.
        Idaho Code § 19-2514 provides that any person who is convicted for the third time of a
felony must be sentenced to the custody of the State Board of Correction for a term of not less
than five years, and the term may be extended to a life sentence. The former convictions relied
upon to invoke the persistent violator enhancement must be alleged in the indictment or
information and be proved at trial beyond a reasonable doubt. State v. Miller, 151 Idaho 828,
832-33, 264 P.3d 935, 939-40 (2011); State v. Medrain, 143 Idaho 329, 332, 144 P.3d 34, 37 (Ct.
App. 2006); State v. Cheatham, 139 Idaho 413, 416, 80 P.3d 349, 352 (Ct. App. 2003); State v.
Martinez, 102 Idaho 875, 880, 643 P.2d 555, 560 (Ct. App. 1982). The State bears the burden of
identifying the defendant as the same individual identified in the prior convictions, State v.
Lovejoy, 60 Idaho 632, 637, 95 P.2d 132, 134 (1939); Medrain, 143 Idaho at 332, 144 P.3d at 37;
see also State v. Lawyer, 150 Idaho 170, 173, 244 P.3d 1256, 1259 (Ct. App. 2010), and the
burden of identifying the prior crimes as felonies. State v. Pacheco, 134 Idaho 367, 372, 2 P.3d
752, 757 (Ct. App. 2000); State v. Smith, 116 Idaho 553, 560, 777 P.2d 1226, 1233 (Ct. App.
1989). The State may satisfy the latter burden by “produc[ing] copies of judgments specifically
identifying the crimes as felonies, or--if the judgments were not so specific--[by offering]
admissible copies of the felony statutes applicable to the crimes recited in the judgments.”
Smith, 116 Idaho at 560, 777 P.2d at 1233.
        A jury’s finding that a defendant is a persistent violator will not be overturned on appeal
where there is substantial evidence upon which a reasonable trier of fact could have found that
the prosecution sustained its burden of proving the essential elements of the enhancement
beyond a reasonable doubt. See State v. Marsh, 153 Idaho 360, 365, 283 P.3d 107, 112 (Ct. App.
2011); State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998); State v.
Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App. 1991). We do not substitute our


                                                 7
view for that of the trier of fact as to the reasonable inferences to be drawn from the evidence,
Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683, 684, 701 P.2d 303,
304 (Ct. App. 1985), and we consider the evidence in the light most favorable to the prosecution.
Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson, 121 Idaho at 104, 822 P.2d at 1001.
       The State’s Exhibit 63, presented at trial, included the Oregon indictment by which
McClain was charged with first degree assault with a dangerous weapon as a felony offense and
the Oregon judgment of conviction for a different offense, third degree assault. The copy of
Exhibit 63 included in the record on appeal includes only the indictment--not the judgment--
evidently due to an error in preserving the exhibit in the district court. 3 Nevertheless, it is clear
from other portions of the record that Exhibit 63 originally included the Oregon judgment for
third degree assault and that the judgment did not indicate whether that offense, for which
McClain was convicted, was a felony or a misdemeanor. The indictment charging McClain with
first degree assault does not mention third degree assault and, hence,does not indicate whether
the latter offense was a felony under Oregon law.
       During closing arguments, the prosecutor stated that the Oregon judgment indicated that
McClain was “convicted of assault number three--or assault in the third degree” and that the
Oregon indictment indicates that first degree assault is a felony. During McClain’s closing
arguments, defense counsel argued that the Oregon judgment showed that McClain was
convicted of third degree assault, not first degree assault, and that the Oregon judgment “does
not indicate whether that is a felony or a misdemeanor charge.” In rebuttal, the State responded
that it was not “clear” from the Oregon judgment whether the offense was a felony or
misdemeanor, but that the Oregon indictment clarified that the offense was a felony.
       During their deliberations, the jury sent three separate notes to the court pertaining to the
lack of evidence identifying third degree assault as a felony under Oregon law. The court
directed the jury to continue deliberations, and the jury ultimately found that McClain had been
convicted of felony assault in Oregon. When McClain later filed a motion for a judgment of
acquittal on the persistent violator enhancement, the district court denied the motion.

3
        McClain filed a motion to augment the record with the Oregon judgment of conviction
that had been admitted as part of Exhibit 63, but the Supreme Court denied the motion after the
district court clerk attested that the Exhibit 63, as preserved in the district court’s records,
contained only the Oregon indictment and not the Oregon judgment of conviction.


                                                  8
       McClain asserts that on this record it is apparent that there was insufficient evidence to
establish that the Oregon conviction was for a felony. We agree. Although the indictment
charged McClain with first degree assault and identified it as a felony, the indictment was for a
different offense than that for which McClain was ultimately convicted. The record plainly
demonstrates that the Oregon judgment did not specify whether third degree assault was a
felony, and no other evidence in the record answers that question. The State did not introduce
copies of the applicable Oregon statutes that could have identified the offense as a misdemeanor
or felony. Therefore, the State did not meet its burden of proving that McClain’s conviction of
third degree assault was for a felony offense. Even when considering the evidence in the light
most favorable to the prosecution, the evidence was insufficient to support a persistent violator
sentencing enhancement.       Therefore, McClain’s sentences for domestic violence and
intimidation of a witness must be vacated, and he must be resentenced without a persistent
violator enhancement.
                                              III.
                                        CONCLUSION
       The district court did not err by admitting a video recording of a police interview with
McClain.   Therefore, we affirm McClain’s judgments of conviction for domestic violence,
intimidation of a witness, and violation of a no contact order. McClain’s sentences for domestic
violence and intimidation of a witness are vacated, and the case is remanded for resentencing
without a persistent violator enhancement.
       Judge GUTIERREZ and Judge MELANSON CONCUR.




                                               9
