               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40920

STATE OF IDAHO,                                    )   2014 Unpublished Opinion No. 632
                                                   )
       Plaintiff-Respondent,                       )   Filed: July 18, 2014
                                                   )
v.                                                 )   Stephen W. Kenyon, Clerk
                                                   )
JOAQUIN ISAIAH GARZA,                              )   THIS IS AN UNPUBLISHED
                                                   )   OPINION AND SHALL NOT
       Defendant-Appellant.                        )   BE CITED AS AUTHORITY
                                                   )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. George A. Southworth, District Judge.

       Judgment of conviction and unified sentence of fifteen years, with five years
       determinate, for aiding and abetting aggravated battery and of being a persistent
       violator, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Joaquin Isaiah Garza appeals from his judgment of conviction, claiming the district court
committed evidentiary error under Idaho Rule of Evidence 609 by allowing evidence of his prior
felony conviction to be admitted into evidence.
                                                  I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Garza was charged with aggravated battery and, on an alternative theory, aiding and
abetting aggravated battery, Idaho Code § 18-907, 1 for his alleged involvement in a bar fight.



1
        Idaho law concerning criminal culpability makes no distinction between the person who
directly commits a criminal act and a person who aids and abets in its commission. Rather, those
who aid and abet a crime are culpable as “principals.” Idaho Code §§ 18-204, 19-1430; State v.
Horejs, 143 Idaho 260, 263, 141 P.3d 1129, 1132 (Ct. App. 2006).

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The State subsequently added a persistent violator charge, I.C. § 19-2514.            Over Garza’s
objection, the court permitted admission of evidence establishing that Garza was a convicted
felon, but not the nature of the offense, pursuant to I.R.E. 609. The admission was based on his
previous conviction for unlawful discharge of a firearm at a dwelling, I.C. § 18-3317.
       The jury found Garza guilty on the charge of aiding and abetting aggravated battery and
of being a persistent violator. The jury found him not guilty on the charge of aggravated battery.
The district court imposed a unified sentence of fifteen years with five years determinate. He
timely appeals his judgment of conviction based on the district court’s I.R.E. 609 ruling at trial.
                                                 II.
                                            ANALYSIS
       Garza argues the district court erred when it allowed the State to present evidence
pursuant to I.R.E. 609 of his prior felony conviction because he asserts it was a crime of
violence, and therefore did not weigh on his credibility.         Idaho Rule of Evidence 609(a)
provides:
               For the purposes of attacking the credibility of a witness, evidence of the
       fact that the witness has been convicted of a felony and the nature of the felony
       shall be admitted if elicited from the witness or established by public record, but
       only if the court determines in a hearing outside the presence of the jury that the
       fact of the prior conviction or the nature of the prior conviction, or both, are
       relevant to the credibility of the witness and that the probative value of admitting
       this evidence outweighs its prejudicial effect to the party offering the witness. If
       the evidence of the fact of a prior felony conviction, but not the nature of the
       conviction, is admitted for the purpose of impeachment of a party to the action or
       proceeding, the party shall have the option to present evidence of the nature of the
       conviction, but evidence of the circumstances of the conviction shall not be
       admissible.

       The determination of whether evidence of a witness’s prior conviction of a crime will be
admitted under I.R.E. 609 involves a two-tiered inquiry. The court must first consider whether
the previous conviction is relevant to the witness’s credibility; and second whether its probative
value outweighs its unfair prejudicial effect. State v. Trejo, 132 Idaho 872, 876, 979 P.2d 1230,
1234 (Ct. App. 1999).
       In reviewing the trial court’s decision as to the first prong concerning relevance, the
standard of review is de novo. State v. Thompson, 132 Idaho 628, 630, 977 P.2d 890, 892
(1999). In reviewing the trial court’s decision as to the second prong concerning whether the



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probative value of the evidence outweighs its prejudicial impact, the standard of review is abuse
of discretion. Id. 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. State v.
Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
       In State v. Ybarra, 102 Idaho 573, 634 P.2d 435 (1981), the Court recognized that
different types of felonies have different degrees of probative value on the issue of credibility
and identified three categories of felonies to determine whether a prior conviction could be used
for impeachment. Id. at 580, 634 P.2d at 444. Category one involves crimes such as perjury
which are “intimately connected” with the issue of credibility. Id. Category two involves crimes
such as robbery or burglary which are “somewhat less relevant” to the issue of credibility. Id.
Finally, category three involves acts of violence, which generally have little or no direct bearing
on honesty and veracity. Id. at 581, 634 P.2d at 443.
       At trial, the prosecutor advised Garza if he chose to testify that he would seek to impeach
his credibility with his prior conviction for unlawful discharge of a firearm at a dwelling. Albeit
mistakenly, both the court and prosecutor stated that prior convictions for violent offenses fall
into the second category under Ybarra. While there is no case law indicating whether the
discharge of a firearm at a dwelling is a violent offense, the district court ruled that because it
viewed Garza’s prior offense as violent, it fell into the second category under Ybarra and could
be used for impeachment purposes.        Garza’s objection was on the grounds that his prior
conviction was not violent and therefore could not be used relative to his credibility. However,
on appeal Garza argues that his prior conviction was a violent offense and therefore should not
have been used for impeachment purposes because it falls under the third category under Ybarra.
       While the district court incorrectly stated that crimes of violence fall into the second
category, this Court does not need to conclude which category Garza’s prior conviction falls
under because he failed to preserve for appeal his claim that it was error to admit his prior
conviction. In order to preserve an objection for appellate review, either the specific ground for
the objection must be stated, or it must be apparent from the context. State v. Almaraz, 154
Idaho 584, 602, 301 P.3d 242, 260 (2013). Objecting to the admission of evidence on one basis


                                                3
does not preserve a separate and different basis for the exclusion of evidence. State v. Johnson,
126 Idaho 892, 896, 894 P.2d 125, 129 (1995). At trial, Garza objected to the admission of his
prior conviction on the basis that it was not a violent offense, and on appeal he makes the
opposite argument that the offense was violent. Because Garza failed to preserve this argument
for appeal, it is unnecessary to address the second prong determining whether the conviction or
the nature of the conviction, or both, are relevant and if the probative value outweighs its
prejudicial effect. I.R.E. 609(a); Thompson, 132 Idaho at 632, 977 P.2d at 894.
       Further, even if Garza had preserved his objection for appellate review, any error was
harmless. Error is not reversible unless it is prejudicial. State v. Stoddard, 105 Idaho 169, 171,
667 P.2d 272, 274 (Ct. App. 1983). With limited exceptions, even constitutional error is not
necessarily prejudicial error. Id. Thus, we examine whether the alleged error complained of in
the present case was harmless. See State v. Lopez, 141 Idaho 575, 578, 114 P.3d 133, 136 (Ct.
App. 2005).
       The evidence of Garza’s prior conviction did not affect the verdict. In addition to
testimony from the doctor who treated the victim and the victim himself, there were several other
witnesses presented by the State. Garza was seen on video trying to cut off the fleeing victim,
although he tried to explain it away. The victim stated that before being knocked unconscious,
Garza took a swing at him but missed. Eyewitness testimony given by a taxi cab driver, who
watched the beating from ten-to-fifteen feet away while sitting in her automobile, was
particularly compelling. She stated that the victim was already unconscious and that Garza
ordered, “Let’s finish him off,” to the other men involved in the beating before she exited her
automobile to make her presence known. She testified that she could see Garza’s face clearly
from the light overhead on the building. She also identified him as one of the men who was
either holding the victim up, or was kicking and hitting him. She identified Garza both through a
photo lineup prepared by law enforcement and at trial. Additionally, a waitress testified seeing
Garza at the bar the evening of the incident with other people that she identified by name.
Moreover, she identified Garza in a photo lineup prepared by law enforcement, and also in
surveillance videos taken both inside the bar and the outside parking lot, in which Garza is seen
running.
       Specifically regarding Garza’s credibility, Garza had repeatedly been deceitful when
interviewed by a detective who conducted a taped interview several weeks after the incident,


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which was admitted into evidence. At the time of the interview, Garza denied knowing the other
men the waitress had testified he was with. He also claimed that he had never been to the bar
where the beating occurred, much less the evening it took place, and he stated the witness who
claimed she had watched the fight and the security footage showing him at the bar was “wrong.”
On cross-examination, he admitted lying numerous times during the interview, admitting he was
at the bar on the night in question and knows the people whom the waitress identified as being
with him that night.
       The evidence, and in particular the interview with the detective and the cross-
examination of Garza, seriously undermined his credibility.          His prior conviction, even if
admitted erroneously, did not prejudice him. The State has met its burden showing that beyond a
reasonable doubt if there was a violation of I.R.E. 609, it did not contribute to the jury’s verdict.
                                                 III.
                                          CONCLUSION
       Garza failed to preserve his objection to the district court’s I.R.E. 609 ruling that allowed
his prior conviction to be admitted for impeachment purposes. Even if the district court’s ruling
was erroneous, the error was harmless. The district court’s judgment finding Garza guilty of
aiding and abetting aggravated battery and of being a persistent violator is affirmed.
       Judge LANSING and Judge MELANSON CONCUR.




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