               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38149

STATE OF IDAHO,                                  )      2012 Unpublished Opinion No. 655
                                                 )
       Plaintiff-Respondent,                     )      Filed: October 3, 2012
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
HILARIO GUEL, JR.,                               )      THIS IS AN UNPUBLISHED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. Michael E. Wetherell, District Judge.

       Judgment of conviction and unified sentence of twenty years, with a minimum
       period of confinement of ten years for domestic violence, attempted strangulation,
       violation of a no contact order and persistent violator enhancement, affirmed.

       Nevin, Benjamin, McKay & Bartlett, LLP; Robyn A. Fyffe, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent. John C. McKinney argued.
                 ________________________________________________
GRATTON, Chief Judge
       Hilario Guel, Jr., appeals from the judgment of conviction for felony domestic violence,
Idaho Code §§ 18-903, 18-918(2), attempted strangulation, I.C. § 18-923, violation of a no
contact order, I.C. § 18-920, and persistent violator, I.C. § 19-2514. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Melissa Davidson became romantically involved with Guel in 2007 and subsequently
moved into Guel’s house. On July 8, 2009, Davidson and Guel had a verbal argument while at a
local bar. Later, as the two were riding on Guel’s motorcycle back to their residence, Davidson
told Guel she wanted off the motorcycle, and began to get off while the motorcycle was still
moving. Although Guel attempted to slow down, Davidson was thrown off the motorcycle.
Guel then drove home while Davidson followed on foot.            When Davidson arrived at the
residence, Guel opened the door and Davidson screamed at him then went upstairs to her

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bedroom and locked the door. Guel followed Davidson upstairs, kicked the door in, and entered
the bedroom. In later statements made to the police, Davidson described the ensuing altercation:
                [Davidson] told me that a physical fight had ensued between Larry and
       her. A battery had occurred where he punched her in the face and had--what she
       estimated to be 16 to 17 times, included closed fist punching as well as open palm
       striking. She reported that during the course of the battery, Larry straddled her
       and she mimicked the strangulation. She closed her fist. Placed her knuckles in
       this fashion. Said that he applied his knuckles downward onto her throat
       restricting her ability to breathe.
                She said that this portion of the strangulation that she estimated occurred
       for approximately two minutes and during this course, this time frame, she was
       able to grab a Scentsy warmer candle and strike him on the side of his head in an
       effort to get away from him, which she reported to me did temporarily work.
                After striking him in the head with the Scentsy candle she said that she
       tried to call 911. He broke her phone. He actually broke two phones during the
       course of this. Then the battery continued. Escalated again to a second incident
       of attempted strangulation, which happened on the floor of the bedroom.
                She said at this point he used open hands to grab around her neck, apply
       pressure, diminishing her ability to breath. And she estimated that that occurred
       and lasted for approximately five minutes.

       After the incident, Davidson was examined at the emergency room.                The doctor
concluded that Davidson had multiple bruises on her face and neck, including bruising and
swelling around her left eye, a swollen upper lip, extensive bruising on both sides of her neck,
and a broken nose.
       As a result of the motorcycle incident, the State charged Guel with felony domestic
violence and leaving the scene of an injury accident. The altercation at the house resulted in
Guel being charged with another count of felony domestic violence, attempted strangulation,
intentional destruction of a telecommunication line, and violation of a no contact order. The
State also charged Guel with being a persistent violator. After a jury trial, Guel was convicted of
felony domestic violence (for the house altercation), attempted strangulation, violation of a no
contact order, and was found to be a persistent violator of the law. He was acquitted of the
remaining charges.
       The district court sentenced Guel on each of the convictions, all sentences to be served
concurrently, resulting in a unified term of twenty years with ten years determinate. Guel timely
appeals.




                                                2
                                                II.
                                           ANALYSIS
       Guel claims that the district court erred by: (1) requiring production of a letter that Guel
wrote to Davidson regarding her testimony; (2) admitting expert testimony regarding a victim’s
tendency to recant or minimize in domestic violence cases; (3) admitting evidence of a prior
domestic violence incident; and (4) precluding admission of evidence of a subsequent battery
committed by the victim. Guel also asserts that cumulative error requires vacation of the
convictions.
A.     Production of a Letter Written by Guel to the Victim
       A letter written by Guel was delivered to Davidson by Guel’s first attorney after Guel
was in custody. The letter set out what Davidson’s testimony should be at trial in order to have
the jury acquit Guel on all charges. Davidson subsequently met with one of Guel’s newly-
retained attorneys and gave him the letter. The State learned of the existence of the letter and
filed a discovery motion, pursuant to Idaho Criminal Rule 16, for any and all letters in defense
counsel’s possession that were written to Davidson by Guel while he was incarcerated. Guel
objected and, after a hearing on the State’s motion to compel, the district court ordered Guel’s
attorneys to disclose the letter to the State. During the State’s case-in-chief, the letter was
admitted into evidence and Davidson also read the letter aloud to the jury.
       Interpretation of court rules is a question of law reviewed de novo. See State v. Moore,
131 Idaho 814, 821, 965 P.2d 174, 181 (1998). Trial courts have broad discretion in determining
whether or not to grant a motion to compel. See I.C.R. 16(k); Kirk v. Ford Motor Co., 141 Idaho
697, 700, 116 P.3d 27, 30 (2005); Storm v. Spaulding, 137 Idaho 145, 149, 44 P.3d 1200, 1204
(Ct. App. 2002) (trial court’s supervision of discovery is wholly discretionary). Such decisions
will only be reversed when there has been a clear abuse of discretion. See Kirk, 141 Idaho at
701, 116 P.3d at 31. In determining whether a trial court abused its discretion, 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. State v.
Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).




                                                3
       Guel contends that the district court erred when it required production of the letter
because the letter was not subject to disclosure under I.C.R. 16. Rule 16(c)(1) provides that
“[u]pon written request of the prosecuting attorney, the defendant shall permit the prosecutor to
inspect and copy or photograph . . . papers, documents, . . . tangible objects or copies or portions
thereof, which are within the possession, custody or control of the defendant, and which the
defendant intends to introduce in evidence at trial” (emphasis added). Guel argues that because
he had no intention of introducing the letter into evidence during trial, by the plain terms of the
rule, he was not required to disclose the letter to the prosecution. The State acknowledges that
Rule 16(c)(1) does not expressly require production of the letter. Nevertheless, the State argues:
(1) that the district court properly compelled disclosure of the letter because Guel could not have
prevented the State from obtaining the letter by having his attorney conceal the letter; and (2) an
alternative means existed by which the State could have lawfully acquired the letter.
       The district court essentially agreed with Guel that the plain language of Rule 16(c)(1)
did not require production since the letter was not intended for use at trial by the defense.
However, the district court ordered that the letter be produced because the result “taken to its
logical conclusion is palpably absurd and clearly contrary to the Rule’s intent.” The district
court noted that the Idaho Criminal Rules “are intended to provide for the just determination of
every criminal proceeding . . . [and] shall be construed to secure simplicity in procedure, fairness
in administration[.]” On the other hand, the district court stated that Guel’s position “would
allow any incriminating physical evidence, not compelled or otherwise privileged, to be harbored
from discovery by the State, as long as the Defendant or his attorney reached the evidence first in
time.” Rather than promoting “just determination” or “fairness in administration” of a criminal
proceeding, the district court found Guel’s position “would promote the active interference and
obstruction of prosecution investigations, placing gamesmanship before sound trial strategy and
ethical obligations.” The district court found that the letter was not expressly protected from
disclosure by the rules regarding work product or attorney-client-privileged information. See
I.C.R. 16(g) and (h).    The district court also found that the letter did not raise any self-
incrimination issues but constituted incriminating physical evidence.           The district court
concluded:
               While this Court finds the most proper procedure for obtaining possible
       evidence of a crime is through the warrant or subpoena process, and urges the
       State to utilize these tools rather than create future appealable issues, it finds a

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       reasonable interpretation of the rules of discovery would not protect [Guel] from
       disclosing this third-party communication.

       As the district court noted, the Idaho Criminal Rules provide for warrants and subpoenas
as ways to acquire evidence like the letter in this case. See I.C.R. 17, 41. So the court’s
conclusion that Guel’s position would authorize the harboring of relevant evidence is not entirely
accurate since means, other than Rule 16, are available to require production. It is true, however,
that attorneys may not hide relevant evidence, nor may a perpetrator avoid production of such
evidence by giving it to his attorney. See State v. Dillon, 93 Idaho 698, 471 P.2d 553 (1970),
(attorney may not act as a depository for criminal evidence). The letter in this case was not
protected from disclosure. First, Guel was in no way compelled to create the letter which, as the
district court found, avoids any issues of self-incrimination. See United States v. Hubbell, 530
U.S. 27, 35-36 (2000) (“More relevant to this case is the settled proposition that a person may be
required to produce specific documents even though they contain incriminating assertions of fact
or belief because the creation of those documents was not ‘compelled’ within the meaning of the
privilege.”). Second, the letter was intended for and delivered to a third party and, thus, the letter
cannot be protected under the attorney-client privilege. See I.R.E. 502(a)(5); Farr v. Mischler,
129 Idaho 201, 207, 923 P.2d 446, 452 (1996) (To be a confidential communication, the
communication must “not be intended to be disclosed to third persons.”). In addition, the letter
was not created by, or at the direction of, Guel’s attorneys and thus does not constitute work
product. Therefore, the letter was not protected by any privilege and was not expressly protected
from disclosure under Rule 16.
       In summary, the State’s discovery request relied upon Rule 16(c) as its basis, but because
Guel did not intend to introduce the letter into evidence, Rule 16(c) did not require production.
On the other hand, the document was not expressly protected from disclosure under I.C.R. 16(g).
In essence, the district court acknowledged that the document was not required to be disclosed
under I.C.R. 16(c) but, since it was not expressly protected under I.C.R. 16(g), the court could, in
its discretion, order production consistent with the policies behind the rules. Even if the district
court erred when it compelled production, error is not reversible unless it is prejudicial. State v.
Stoddard, 105 Idaho 169, 171, 667 P.2d 272, 274 (Ct. App. 1983). As Guel acknowledges, his
letter was subject to production by other means available to the State, and Guel’s attorney was
not authorized to harbor it. Consequently, any error by the district court was harmless.


                                                  5
B.     Expert Testimony Regarding the Tendency of Victims to Recant or Minimize in
       Domestic Violence Cases

       Prior to trial, the State gave notice of its intent to call an expert witness to explain the
dynamics of domestic violence, including the reasons victims sometimes recant their initial
reports of violence, and later minimize the violent nature of an abuser’s conduct. After a
hearing, the district court ruled that under Idaho Rule of Evidence 702 the State would be
allowed to present such testimony, assuming a proper foundation was laid. During trial, the
State’s expert witness was qualified as an expert in domestic abuse and testified as anticipated.
       Pursuant to Rule 702, expert testimony is admissible “if scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue.” The expert testimony, therefore, must inform the jury about a matter that is
outside the common experience and knowledge of a lay juror, and assist the jury in deciding a
material issue in the case. State v. Wright, 147 Idaho 150, 155, 206 P.3d 856, 861 (Ct. App.
2009) (citing State v. Hester, 114 Idaho 688, 694, 760 P.2d 27, 33 (1988)). However, even if
evidence is admissible under I.R.E. 702, it may be subject to exclusion if its probative value is
substantially outweighed by such factors as the danger of unfair prejudice, confusion of the
issues, misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. See I.R.E. 403; Wright, 147 Idaho at 155, 206 P.3d at 861.
       Guel asserts that the expert’s testimony was inadmissible because it merely explained
factors and circumstances within the normal experience and understanding of lay jurors.
Specifically, Guel argues that the reasons that a spouse or partner may later change his or her
story regarding a battery in order to protect a loved one are within the understanding of the
common juror. The district court concluded that recantation and minimization by domestic
violence victims is not something the average juror would normally experience. The district
court stated, in an exchange with defense counsel, that “there is a pattern in domestic violence
cases that those of us who deal with them all the time know exist; that many domestic violence
victims do recant.” However, the court stated that “[t]he jury doesn’t see it all the time.” The
court further noted that a juror who did have firsthand experience with domestic violence would
not likely be able to serve as a juror in a domestic violence case. Therefore, the district court
allowed the State to present the testimony because the information regarding domestic violence




                                                 6
would be outside the common experience of most jurors and because the jury would be assisted
by the expert testimony.
       Guel also argued that expert testimony was offered on the issue of Davidson’s credibility,
a function left solely to the jury.      The district court found that the testimony was not
objectionable merely because it collaterally concerned the issue of credibility. The district court
determined that the testimony would assist the jury in evaluating the victim’s credibility and
specifically noted that the expert could not directly opine on Davidson’s credibility. At trial, the
State did not seek to elicit testimony from the expert witness as to any conclusions or opinions
specifically regarding Davidson’s credibility.
       In State v. Varie, 135 Idaho 848, 26 P.3d 31 (2001), the Idaho Supreme Court agreed
with the district court that expert testimony, general to the characteristics of domestic violence
and the reaction of victims to such violence, was admissible. Id. at 855, 26 P.3d at 38. Expert
testimony which addresses the “general progression” of a victim or witness, “as well as the
behavior and characteristics of victim and offender during the progression through those phases,”
may be admissible. State v. Dutt, 139 Idaho 99, 104, 73 P.3d 112, 117 (Ct. App. 2003). This is
especially the case where the expert does not link the general progression of the domestic abuse
to the particular circumstances of the case. Id. In Dutt, the State called an expert witness to
testify concerning the general progression of child sexual abuse through various phases, as well
as the behavior and characteristics of victims and offenders during that progression. Id. “In her
testimony, [the expert] did not link the general progression of child sexual abuse to the particular
circumstances of the offenses with which Dutt was charged, and she offered no opinion
specifically addressing the experiences or credibility of the victim.” Id. We held that the district
court did not abuse its discretion because the generalized testimony gave the jurors specialized
knowledge that could assist them in evaluating the victim’s credibility, and the expert did not
testify concerning matters outside her demonstrated expertise. Id. at 105, 73 P.3d at 118.
       A recent opinion of the Idaho Supreme Court makes it clear that this proffered testimony
would not cross the line between admissible expert testimony and that which would invade the
province of the jury. In State v. Almaraz, ___ Idaho ___, ___, ___ P.3d ___, ___ (May 31, 2012)
reh’g pending, the district court allowed the defense to present expert testimony from a cognitive
psychologist about the types of suggestive photo line-up procedures that can render eyewitness
identification unreliable, but precluded the expert from testifying about the suggestiveness of the


                                                 7
photo identification procedure used during the police interview of an eyewitness on the ground
that such testimony invaded the province of the jury. The Supreme Court held that the limitation
was error, stating:
       The district court allowed [the expert] to testify about the proper guidelines and
       procedures that should be followed during police interviews and how certain
       types of conduct can affect one’s memory. This Court finds that having [the
       expert] go through the audio recording of [the police officer’s] interview with [the
       eyewitness] would have been helpful to the average juror’s understanding of
       whether the interview comported with proper police procedures. The court should
       not overly restrict expert testimony that assists the jury. This Court finds that it
       would have assisted the jury to allow [the expert] to point out specific instances of
       suggestive conduct in [the police officer’s] interview and to explain the nature and
       significance of certain overly suggestive acts, such as turning off the tape recorder
       in the middle of a crucial point during the interview. In reaching this holding, the
       Court still recognizes that an expert cannot opine to the accuracy of the
       eyewitness identification or the credibility of any witness as those matters are
       reserved for the jury.
               Nevertheless, testimony relating to the proper guidelines for conducting an
       accurate interview or lineup, whether or not those procedures were followed in
       the case at hand, and the consequences of non-compliance with those procedures
       does not invade the province of the jury.

Id. at _____, _____ P.3d _____.

       The expert testimony admitted in this case was general in nature. The expert witness
testified only as to domestic violence generally and domestic violence victims’ tendency to
recant or minimize. In its ruling, the district court expressly limited the testimony to general
information, finding the testimony admissible “to the extent it does not directly pass on the
credibility of the witness or attempt to present a diagnosis that the witness is suffering from
battered spouse syndrome.” In this case, the State did not offer any expert testimony beyond that
deemed admissible by Almaraz and other Idaho precedent, and the district court here did not err in
admitting the expert testimony.
C.     Idaho Rule of Evidence 404(b)--Evidence of a Prior Incident of Domestic Violence
       Prior to trial, the State filed a notice of intent to introduce evidence, under I.R.E. 404(b),
of a misdemeanor domestic battery Guel committed upon Davidson on June 2, 2009, “for the
purpose of proving intent, absence of mistake or accident, and/or to rebut any claims of self-
defense.” The district court ruled that if Guel or his attorney “make mention of self-defense,
mistake, or accident, either directly or indirectly in opening statement, during presentation of the


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State’s case in chief, or in presenting its defenses once the State has rested . . . it will place the
specific intent element directly at issue and the State will be permitted to introduce evidence of
the [d]efendant’s conduct from June 2, 2009, in rebuttal.”
        Guel argues that his claim of self-defense did not place his intent to inflict traumatic
injuries at issue. Rather, Guel asserts that self-defense only implicates the issue of justification,
i.e., was the battery justified because Guel used reasonable force to protect himself against
Davidson’s violence? The State contends that evidence of Guel’s misdemeanor domestic battery
against Davidson is admissible under Rule 404(b) regardless of whether it is characterized as
evidence of Guel’s intent or to rebut his claim of justification in the context of self-defense.
        Idaho Rule of Evidence 404(b) provides:
                Evidence of other crimes, wrongs, or acts is not admissible to prove the
        character of a person in order to show that the person acted in conformity
        therewith. It may, however, be admissible for other purposes, such as proof of
        motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
        mistake or accident, provided that the prosecution in a criminal case shall file and
        serve notice reasonably in advance of trial, or during trial if the court excuses
        pretrial notice on good cause shown, of the general nature of any such evidence it
        intends to introduce at trial.

        This rule prohibits introduction of evidence of acts other than the crime for which a
defendant is charged if the probative value of the evidence is entirely dependent upon its
tendency to demonstrate the defendant’s propensity to engage in such behavior. State v. Grist,
147 Idaho 49, 54, 205 P.3d 1185, 1190 (2009); State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260,
1262 (Ct. App. 2002). Of course, evidence of a prior crime, wrong, or act may implicate a
person’s character while also being relevant and admissible for some permissible purpose, such
as those listed in the rule.
        When determining the admissibility of evidence to which a Rule 404(b) objection has
been made, the trial court must first determine whether there is sufficient evidence of the other
acts that a reasonable jury could find the conduct actually occurred. If so, then the court must
consider: (1) whether the other acts are relevant to a material disputed issue concerning the
crime charged, other than propensity; and (2) whether the probative value is substantially
outweighed by the danger of unfair prejudice. Grist, 147 Idaho at 52, 205 P.3d at 1188; State v.
Parmer, 147 Idaho 210, 214, 207 P.3d 186, 190 (Ct. App. 2009). On appeal, this Court defers to
the trial court’s determination that there is sufficient evidence of the other acts if it is supported


                                                  9
by substantial and competent evidence in the record. Parmer, 147 Idaho at 214, 207 P.3d at 190.
In this case, Guel does not challenge the existence of the domestic battery as an established fact.
Therefore, we address only the relevancy and unfair prejudice issues. 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). 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. State v.
Norton, 151 Idaho 176, 190, 254 P.3d 77, 91 (Ct. App. 2011).
       Guel’s argument ignores the fact that once Guel raised the issue of self-defense, the prior
act evidence was relevant to show that Guel’s actions were not justified. The evidence of the
June 2009 incident showed a physical altercation between Guel and Davidson in which Davidson
was outmatched. Guel was able to hold Davidson down and yet still proceeded to batter her
during the incident. That evidence was relevant to: (1) whether or not Guel believed he was in
imminent danger of bodily harm during the charged incident; and (2) whether or not Guel
believed his actions were necessary to save himself. The prior act evidence was relevant to show
that the battery was not justified, i.e., that Guel did not believe his actions were necessary or that
he did not believe he was in imminent danger of bodily harm. Moreover, evidence of the prior
domestic battery in which Guel had physically controlled Davidson, and yet still continued to
batter her, would also aid the jury in determining whether or not Guel acted solely in response to
the danger or had another motivation. Guel put his intent and motive directly at issue when he
asserted his actions were justified as self-defense, and Guel’s prior domestic battery was relevant
to those material issues. Rule 404(b) provides a non-exclusive list of appropriate purposes for
admitting other act evidence and does not specify the type of intent or whose intent may be
established or rebutted by such evidence. 1
       Guel also argues that the evidence of the June 2, 2009, incident should have been
excluded because any probative value was substantially outweighed by the risk of unfair
prejudice. The district court noted the potential prejudice stating that the “obvious source o[f]
prejudice will arise in the form of improper character or propensity application by the jury.”
However, the district court properly weighed the probative value against the risk of unfair


1
        Despite any asserted distinction between intent to commit a crime and evidence
disproving self-defense, a number of courts have allowed Rule 404(b) evidence to rebut a claim
of self-defense generally. Cf. Charles v. Hickman, 228 F.3d 981, 986 (9th Cir. 2000).

                                                 10
prejudice and determined that the evidence was admissible. In addition, in an effort to mitigate
any possible misapplication of the evidence by the jury, the district court agreed to provide a
limiting instruction. Thus, the district court clearly perceived its decision as one of discretion,
applied the proper legal standards, and reached its decision by an exercise of reason. Under the
circumstances, the district court did not abuse its discretion.
D.     Idaho Rule of Evidence 404(b)--Evidence of a Battery Committed by the Victim
       After the charged incident, in August 2009, Davidson allegedly battered her roommate,
as well as two police officers who responded to the scene of the disturbance. Guel asserted
below, as he does here, that evidence of the battery was relevant to show Davidson’s violent
character “which was relevant to support his self-defense claim that she was the first aggressor.”
The district court determined that Guel could offer opinion and reputation evidence, as well as
evidence of specific prior incidents, but ruled that Guel would not be allowed to introduce
evidence of the subsequent August incident. The district court concluded that because one of the
elements of Guel’s self-defense claim was that “the defendant must be aware of the alleged
victim’s propensity [for] violence,” the victim’s conduct subsequent to the charged incident was
irrelevant. The State contends that the district court properly excluded the evidence of the
August 2009 incident, although the evidence should have been excluded on the ground that
Davidson’s propensity for violence is not an “essential element” of the self-defense claim and is,
therefore, not admissible under Rule 405(b).
       Idaho Rule of Evidence 405 provides:
                (a) Reputation or opinion. In all cases in which evidence of character or a
       trait of character of a person is admissible, proof may be made by testimony as to
       reputation or by testimony in the form of an opinion. On cross-examination,
       inquiry is allowable into relevant specific instances of conduct.
                (b) Specific instances of conduct. In cases in which character or a trait of
       character of a person is an essential element of a charge, claim, or defense, proof
       may also be made of specific instances of the person’s conduct.

(Emphasis added.) Thus, I.R.E. 405(b) allows for proof of a person’s character through the
introduction of evidence concerning specific instances of conduct in certain cases. See State v.
Custodio, 136 Idaho 197, 204, 30 P.3d 975, 982 (Ct. App. 2001). However, this Court held in
Custodio that a victim’s propensity for violence does not constitute an “essential element” of a
claim of self-defense. Id. at 204, 30 P.3d at 982. In Custodio, this Court stated:



                                                 11
               The Ninth Circuit Court of Appeals addressed this issue in United States v.
       Keiser, 57 F.3d 847 (9th Cir. 1995). The court in Keiser determined that “the
       relevant question should be: would proof, or failure of proof, of the character trait
       by itself actually satisfy an element of the charge, claim, or defense? If not, then
       character is not essential and evidence should be limited to opinion of reputation.”
       Id. at 856 (footnote omitted). The court in Keiser went on to hold that the
       victim’s violent character did not constitute an essential element of a self-defense
       claim. Id. at 857. We agree. Proof of a victim’s propensity for violence,
       standing alone, does not prove an element of a claim of self-defense. Proof of a
       victim’s violent character does not show that the victim was the first aggressor in
       a particular conflict, nor does proof of a victim’s passive demeanor foreclose the
       defendant from asserting a claim of self-defense.
               Thus, although evidence relating to the victim’s violent character was
       relevant for the purpose of inferring that the victims acted in conformity therewith
       on the morning in question, the victims’ propensities for violence was not an
       essential element of Custodio’s claim of self-defense. Therefore, Custodio has
       failed to show that the district court erred in excluding this evidence in the form
       of a specific instance of the victims’ propensities for violence pursuant to
       Rule 405.

Custodio, 136 Idaho at 204, 30 P.3d at 982.
       Guel acknowledges that the holding in Custodio is dispositive of this issue, but argues
that the interpretation of I.R.E. 405 adopted by this Court should be overturned or disavowed.
“When there is controlling precedent on questions of Idaho law ‘the rule of stare decisis dictates
that we follow it, unless it is manifestly wrong, unless it has proven over time to be unjust or
unwise, or unless overruling it is necessary to vindicate plain, obvious principles of law and
remedy continued injustice.’” Greenough v. Farm Bureau Mut. Ins. Co. of Idaho, 142 Idaho
589, 592, 130 P.3d 1127, 1130 (2006) (quoting Houghland Farms, Inc. v. Johnson, 119 Idaho
72, 77, 803 P.2d 978, 983 (1990)). See also State v. Forbes, 152 Idaho 849, 852, 275 P.3d 864,
867 (2012); State v. Delling, 152 Idaho 122, 131, 267 P.3d 709, 718 (2011). Guel argues that
this Court should adopt a broader interpretation of Rule 405(b) which would only require that the
evidence directly relate to an essential element of the charge, claim, or defense. In support of
this contention, Guel cites State v. Lewchuk, 539 N.W.2d 847 (Neb. Ct. App. 1995), where the
Nebraska Court of Appeals permitted a defendant to offer testimony of a victim’s violent
conduct, of which the defendant was unaware, to show that the victim’s propensity for violence
made it more likely that the victim was the initial aggressor. The court held that the victim’s
violent character was an essential element of the self-defense claim because “testimony about
specific incidents of the victim’s violent behavior was relevant to, and probative of, the question

                                                12
of who was the first aggressor.” Id. at 853-54; see also State v. Dunson, 433 N.W.2d 676, 680-
81 (Iowa 1988) (holding that specific instances of conduct, occurring subsequent to assault for
which defendant was charged, were admissible to show victim’s propensity for violence in
support of defendant’s self-defense claim). However, there is also substantial support for the
view adopted in Keiser. See, e.g., State v. Williams, 685 P.2d 764, 766 (Ariz. Ct. App. 1984)
(holding that victim’s violent character was not essential element of self-defense because it was
not “an operative fact which, under substantive law, determines the rights and liabilities of the
parties”).
        The Supreme Court of New Jersey more recently undertook the analysis of this very issue
and, like Idaho, adopted the Keiser analysis. See State v. Jenewicz, 940 A.2d 269, 281 (N.J.
2008). After reviewing the Keiser approach and that of Lewchuk, the court stated:
               The better view is that a victim’s violent character is not an essential
        element of self-defense. An “essential element” for purposes of New Jersey
        Evidence Rule 405, extends only to those elements that a party must prove or
        disprove to make out a prima facie case for a claim or defense. An accused can
        assert self-defense successfully without offering any evidence regarding a
        victim’s character. Therefore, character evidence cannot be regarded as
        “essential.” In our view, those courts that have arrived at a contrary holding have
        founded their decisions on the fact that a victim’s character for violence is
        “relevant,” “probative,” or “consequential” to the accused’s theory of self-
        defense. Rule 405 imposes a stricter standard.

Jenewicz at 281. The reasoning adopted by this Court in Custodio is more consistent with the
plain language of I.R.E. 405 than that used by the courts in Lewchuk and Dunson. Nor is this
Court’s decision an outlier; other state courts have adopted the Keiser analysis to determine
“essential” elements for purposes of I.R.E. 405, or its equivalent. Consequently, we are not
persuaded that Custodio must be overturned.
E.      Cumulative Error
        Guel also contends that the cumulative error doctrine applies here, necessitating a
reversal of his conviction. “Under the doctrine of cumulative error, a series of errors, harmless
in and of themselves, may in the aggregate show the absence of a fair trial. However, a
necessary predicate to the application of the doctrine is a finding of more than one error.” State
v. Adamcik, 152 Idaho 445, 483, 272 P.3d 417, 455 (2012) (quoting State v. Perry, 150 Idaho
209, 230, 245 P.3d 961, 982 (2010)). Guel has failed to demonstrate at least two errors, a



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necessary predicate to the application of the cumulative error doctrine. See Adamcik, 152 Idaho
at 483, 272 P.3d at 455.
                                             III.
                                       CONCLUSION
       Guel has not demonstrated reversible error in the district court’s order requiring
production of the letter written by Guel to Davidson. The district court did not err in the
evidentiary rulings allowing expert testimony regarding victims’ tendency to recant or minimize
domestic violence, admitting Rule 404(b) evidence of a prior incident of domestic violence, and
prohibiting evidence of the subsequent battery committed by the victim. Therefore, Guel’s
judgments of conviction and sentences are affirmed.
       Judge GUTIERREZ and Judge MELANSON CONCUR.




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