               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 46757

STATE OF IDAHO,                                )
                                               )    Filed: June 23, 2020
       Plaintiff-Respondent,                   )
                                               )    Melanie Gagnepain, Clerk
v.                                             )
                                               )    THIS IS AN UNPUBLISHED
JOSE ELBERTO CHAVES,                           )    OPINION AND SHALL NOT
                                               )    BE CITED AS AUTHORITY
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Christopher S. Nye, District Judge.

       Judgment of conviction for sexual battery of a minor child sixteen or seventeen
       years of age, vacated; case remanded.

       Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jeffrey D. Nye, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Jose Elberto Chaves appeals from the district court’s judgment of conviction for sexual
battery of a minor child sixteen or seventeen years of age. Chaves argues that the district court
erred by failing to exclude certain evidence. For the reasons set forth below, we vacate and
remand the case for a new trial.
                                               I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Chaves was charged with sexual battery of a minor child sixteen or seventeen years of
age, Idaho Code § 18-1508A, and a mandatory minimum sentencing enhancement, I.C. § 19-
2520G(2).    The charge arose after a mother discovered that Chaves was engaging in
inappropriate snapchat conversations with her sixteen-year-old child (B.B.) and reported the
messages to police. An investigation ensued wherein B.B. admitted that Chaves had B.B.

                                               1
perform oral sex on him on October 4, 2016. Subsequently, the State charged Chaves with the
above-listed crime. Chaves’ case proceeded to trial.
       At trial, B.B. testified that he met Chaves while working at an onion company and the
two began communicating through text messages and snapchat. B.B. explained that Chaves
provided him with marijuana at least three to four times per week. B.B. testified that Chaves
would pick him up while his parents were at work. They would drive to their “usual spot” and
smoke marijuana. B.B. testified that he never had to pay Chaves for the marijuana. B.B.
testified that on October 4, 2016, he met up with Chaves to smoke marijuana and they drove to
their “usual spot.” After B.B. finished smoking, B.B. testified that Chaves unbuckled his pants,
pulled out his penis, and nudged B.B. toward it. B.B. testified that he performed oral sex on
Chaves.
       The defense called Miguel Estrada to testify as an alibi witness on behalf of Chaves.
Estrada testified that he was with Chaves on the evening of October 4, 2016, smoking marijuana
at Lake Lowell. On cross-examination, the State asked Estrada about a calendar that he had
filled out during an interview at the prosecutor’s office eleven days prior to trial. In response to
this inquiry, defense counsel asked to approach the bench and argued that the calendar was
improper impeachment evidence because it was not disclosed to the defense prior to trial. The
district court overruled the objection and the prosecutor proceeded to question Estrada about the
calendar. The calendar was made during the prosecution’s interview with Estrada, was written
on and signed by Estrada, and noted various days that Estrada was with Chaves in October of
2016. However, the calendar noted that Estrada was not with Chaves on October 4, 2016. After
further questioning from the prosecution regarding the inconsistencies in his testimony and the
calendar, Estrada stated, “Yeah. Look. I don't recall the days when we hanged out but we
smoked a lot and that’s all I got to say. It was a bunch of days.”
       In addition, Chaves testified on his own behalf. He admitted that he provided B.B. with
marijuana and that he had snapchat conversations with B.B. However, Chaves denied having
B.B. engage in oral sex. Instead, he testified that he was with Estrada on October 4, 2016,
smoking marijuana at Lake Lowell.
       During rebuttal, the State called Tony Thompson, an investigator from the prosecutor’s
office, to testify. Thompson was a witness to the prosecutor’s interview with Estrada. Chaves
objected because Thompson was not disclosed as a rebuttal witness prior to trial. The court

                                                 2
overruled Chaves’ objection. Thompson testified that he was present during Estrada’s interview.
He stated that Estrada was asked “[a]t least three times” whether he was with Chaves on
October 4 and each time Estrada said that he was not. Thompson testified that he recorded the
interview. Over Chaves’ objection, the State admitted the calendar and an audio recording of
Estrada’s interview, which the State played for the jury.
       The jury convicted Chaves of sexual battery of a minor. The district court sentenced
Chaves to a unified term of twenty years with fifteen years determinate. Chaves timely appeals.
                                                II.
                                           ANALYSIS
       Chaves argues that the district court erred in permitting the State to present the
impeachment evidence, including the calendar, audio recording, and Thompson’s testimony,
because it was not disclosed to the defense during discovery. In addition, Chaves contends the
State cannot meet its burden of showing admission of the evidence was not harmless. We will
address each of these contentions below.
A.     Admission of Evidence
       Chaves argues that the district court erred by: (1) permitting the State to question Estrada
regarding the calendar that he completed during his interview at the prosecutor’s office;
(2) admitting the calendar and the audio recording of the interview; and (3) permitting Tony
Thompson to testify for the State as a rebuttal witness. Chaves contends that pursuant to State v.
Montgomery, 163 Idaho 40, 408 P.3d 38 (2017) and Idaho Criminal Rule 16, this evidence
should have been disclosed prior to trial and its admission was an abuse of discretion. In
response, the State concedes that the calendar and audio recording were required to be disclosed
under I.C.R. 16(b)(4) and Thompson’s testimony was required to be disclosed pursuant to the
Idaho Supreme Court’s holding in Montgomery and I.C.R. 16(b)(6).              However, the State
contends that, pursuant to Montgomery, the district court did not abuse its discretion in allowing
the State to present the evidence because the trial court has broad discretion to fashion a sanction
for a violation of the discovery rules. Because the State concedes that the evidence should have
been disclosed during discovery under I.C.R. 16, we need only analyze whether its admission
was an abuse of discretion.
       The decision whether to impose discovery sanctions is within the discretion of the trial
court. State v. Anderson, 145 Idaho 99, 104, 175 P.3d 788, 793 (2008). When a trial court’s

                                                 3
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry
to determine whether the lower court: (1) correctly perceived the issue as one of discretion; (2)
acted within the boundaries of such discretion; (3) acted consistently with any legal standards
applicable to the specific choices before it; and (4) reached its decision by an exercise of reason.
State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018). “When imposing discovery
sanctions, the court should balance the equities and make the punishment fit the crime. The
judge should balance the culpability of the disobedient party against the resulting prejudice to the
innocent party.” Anderson, 145 Idaho at 105, 175 P.3d at 794.
       In Montgomery, the State charged the defendant with unlawful discharge of a firearm at
an occupied vehicle. At trial, the defendant testified that all of the bullets that he fired were
recovered and that he fired the shots in self-defense because the vehicle had bumped into him
causing multiple contusions and a displaced hip.          On rebuttal, the State presented two
undisclosed witnesses over the defendant’s objection. The first witness was an investigating
officer who had examined the crime scene. The investigating officer testified that only two of
the five bullets were recovered from the scene. In addition, the State presented a booking
deputy. The booking deputy testified that shortly after the incident and in response to routine
booking questions, the defendant told him that he was in good health and had no injuries.
       On appeal, Montgomery asked that the Idaho Supreme Court overrule its prior precedent
and conclude that rebuttal witnesses must be disclosed under the plain language of I.C.R.
16(b)(6). Thus, the Idaho Supreme Court squarely addressed the issue of whether the State has
an obligation under I.C.R. 16(b)(6) to disclose rebuttal witnesses. The Court concluded:
       The answer is yes, but we are mindful of the practical difficulties this rule can
       present. Despite efforts to scour reports, medical records, and other documents in
       search of the names of people who have knowledge of relevant facts who may be
       called to testify, names will undoubtedly be missed. Experience also tells us that
       trials are unscripted and testimony can be unexpected. It may not be obvious that
       someone has knowledge of relevant facts since what is “relevant” may turn on a
       single, unanticipated answer given by a defendant at trial. The trial courts have
       considerable discretion under Idaho Criminal Rule 16(b)(6) to determine whether
       a particular rebuttal witness should have been disclosed and they have
       considerable discretion under Idaho Criminal Rule 16(k) to fashion an appropriate
       remedy if there is a violation of the disclosure requirement. Nothing in our
       decision today should be taken as a bright-line rule that the failure to disclose a
       rebuttal witness will result in the exclusion of that witness.



                                                 4
Montgomery, 163 Idaho at 45, 408 P.3d at 43 (internal citations omitted). Thereafter, the
Montgomery Court applied its newly articulated rule to the facts of the case and determined that
both of the witnesses should have been disclosed in response to Montgomery’s I.C.R. 16(b)(6)
discovery request. Next, the Court examined whether it was an abuse of discretion for the
district court to allow the witnesses to testify. The Court concluded the admission of the
investigating officer’s testimony was an abuse of discretion because the officer “had knowledge
of relevant facts and his name should have been disclosed in response” to the discovery request.
Id. However, the Court concluded that admission of the booking agent’s testimony was not an
abuse of discretion. The Court explained:
       There is no evidence that the State knew or had reason to know that the booking
       deputy’s questioning of Montgomery was relevant until after Montgomery took
       the stand and described the injuries he allegedly sustained during the incident.
       The State called the booking deputy to impeach Montgomery with prior
       inconsistent statements. Even if the district court had applied Rule 16(b)(6) in
       accordance with our decision today, a decision to allow the booking deputy to
       testify under these circumstances would have been within the boundaries of the
       district court’s discretion.
Montgomery, 163 Idaho at 46, 408 P.3d at 44.
       Here, the State argues that the evidence in this case is akin to the booking agent’s
testimony in Montgomery because it was solely used to impeach Estrada with prior inconsistent
statements. As such, the State claims that the district court’s decision to allow the prosecution to
admit the calendar, audio recording, and Thompson’s testimony was not an abuse of discretion.
In addition, the State claims that (1) Chaves was not prejudiced by the prosecutor’s failure to
disclose the evidence, and (2) the prosecutor’s failure to disclose the evidence was an innocent
act because the law did not require disclosure as Montgomery had not yet been decided. We
disagree.
       We conclude that the district court abused its discretion by allowing the State to admit the
calendar, audio recording, and Thompson’s testimony. Contrary to the State’s argument, the
Montgomery Court did not hold that there was no abuse of discretion in failing to exclude the
testimony of the booking agent solely because that witness’s testimony was merely impeaching.
Rather, the Montgomery Court reasoned that, where the State had no reason to anticipate certain
testimony from the defendant himself, and the booking deputy’s testimony was offered only to
impeach that unanticipated testimony from the defendant, there was no abuse of discretion.


                                                 5
       Factually, this case is distinguishable from the testimony presented in Montgomery.
Unlike the defendant’s testimony which the prosecutor had no reason to anticipate in
Montgomery, the prosecutor in this case was aware that Estrada was Chaves’ alibi witness and
would testify that he was with Chaves on October 4. Because of that, the prosecutor arranged
the interview with Estrada and procured Estrada’s inconsistent statement that he was not with
Chaves on October 4. It appears from the record that the defense may have been aware that the
prosecutor interviewed Estrada, but it is clear that the defense was unaware of the content of the
interview. It is also clear that the prosecutor did not disclose her plans to use the calendar, audio
recording, or Thompson’s testimony to impeach Estrada at trial despite the defense’s discovery
request for disclosure of this type of information.        Nonetheless, the prosecutor presented
Estrada’s inconsistent statement to the jury through (1) the calendar which was signed by Estrada
and indicated that Estrada was with Chaves on numerous days during October, but not on
October 4; (2) the audio recording of the interview; and (3) Thompson’s testimony that Chaves
stated numerous times during the interview that he was not with Chaves on October 4. In
essence, the prior inconsistent statement was created by the prosecution and withheld in an effort
to surprise the defense at trial. This is exactly the kind of discovery violation that the rules were
designed to prevent. Although Montgomery was decided after Chaves’ trial, we are compelled to
conclude that admission of the calendar, audio recording, and Thompson’s testimony was an
abuse of discretion. Therefore, we must determine whether its admission was harmless.
B.     Harmless Error
       Error is not reversible unless it is prejudicial. State v. Stell, 162 Idaho 827, 830, 405 P.3d
612, 615 (Ct. App. 2017). 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).
Recently, in State v. Garcia, ___ Idaho ___, 462 P.3d 1125 (2020), the Idaho Supreme Court
clarified the harmless error standard for objected-to, nonconstitutionally-based error:
                Today we take the opportunity to clarify several apparent points of
       confusion. First, we reiterate that the proper showing for “harmless error” is not
       “overwhelming evidence” of the defendant’s guilt. Chapman v. California makes
       clear this is not the correct standard. See Chapman, 386 U.S. at 23. Harmless
       error is “error unimportant in relation to everything else the jury considered on the
       issue in question, as revealed in the record.” Yates, 500 U.S. at 403. Proper
       application of the Yates two-part test requires weighing the probative force of the

                                                 6
       record as a whole while excluding the erroneous evidence and at the same time
       comparing it against the probative force of the error. Id. at 404. When the effect
       of the error is minimal compared to the probative force of the record establishing
       guilt “beyond a reasonable doubt” without the error, it can be said that the error
       did not contribute to the verdict rendered and is therefore harmless. Id. at 404-05.
       While a reviewing court might quantify the probative force of the record as a
       whole as “overwhelming evidence” of guilt, as we did in State v. Montgomery,
       163 Idaho at 46, 408 P.3d at 44, the probative force of the error must be weighed
       as well. To rely on the “overwhelming evidence” standard is to commit the same
       mistake the United States Supreme Court overturned in Chapman v. California,
       386 U.S. at 24.
Garcia, ___ Idaho at ___, 462 P.3d at 1138-39.
       The State argues that admission of the calendar, audio recording, and Thompson’s
testimony was harmless and did not contribute to the verdict. Specifically, the State claims that
the error was harmless because: (1) the evidence was duplicative of the statements Estrada made
during the interview; (2) regardless of the evidence, Estrada conceded during cross-examination
that he was unsure if he was with Chaves on October 4; and (3) the snapchat conversation, which
was shown to the jury, strongly indicated that Chaves and B.B. were together on October 4 and
B.B. performed a sexual act on Chaves. In response, Chaves contends that the State cannot meet
its burden to show that admission of the evidence was harmless. We agree with Chaves.
       Admission of the calendar, audio recording, and Thompson’s testimony was not
harmless. This case largely rested on the testimony of B.B., Estrada, and Chaves. Before the
inadmissible evidence was presented, the jury heard two separate stories. First, the jury heard
B.B.’s testimony that he was with Chaves on the evening of October 4, 2016, and he engaged in
sexual acts with Chaves.    In addition, the jury was presented with snapchat conversations
between Chaves and B.B., which indicated that Chaves and B.B. may have been together and
may have engaged in sexual acts on October 4. Second, the defense presented the testimony of
both Chaves and Estrada. The jury heard that Chaves was not with B.B. on the evening of
October 4, 2016. Rather, the jury heard that Chaves and Estrada were together at Lake Lowell
smoking marijuana.
       During direct examination, Estrada was unwavering in his claim that he was with Chaves
on the date in question. Contrary to the State’s assertion, Estrada only conceded that he was
unsure of which days he was with Chaves after the State backed him into a corner by presenting
him with the inadmissible calendar and questioning him about his statements during the
interview. Estrada’s concession was a product of the State’s use of the inadmissible evidence.
                                                 7
Although the State could have questioned Estrada about the statements that he made during the
interview, it did not. In fact, Estrada’s inconsistent statements came in solely through the State’s
use of the inadmissible evidence.       After admitting the calendar, audio recording, and the
testimony of Thompson to impeach Estrada, the State made the following remarks during closing
arguments:
       And then there’s the day in question, October 4. You heard the audio. [Estrada
       was] given every opportunity to say the calendar was wrong. They were together.
       He clearly says we were not together on the 4th and he writes it and he signs it
       and he agrees that it’s accurate. Lies and damn lies. Got to figure out which
       one’s true.
       Chaves largely rested his defense strategy around Estrada’s anticipated alibi testimony.
The State acquired evidence to discredit Chaves’ alibi and failed to disclose it. Had Estrada’s
testimony been unrebutted, the result of the trial may have been different. Although the jury may
have convicted Chaves had the evidence not been improperly admitted, we cannot say that under
the Garcia balancing test the error did not contribute to the verdict. Accordingly, the State has
failed to carry its burden to show that the error was harmless.
                                                III.
                                         CONCLUSION
       The district court abused its discretion by failing to exclude the calendar, audio recording,
and testimony of Thompson. In addition, the error was not harmless. Therefore, we vacate
Chaves’ judgment of conviction for sexual battery of a minor child sixteen or seventeen years of
age and remand the case to the district court for a new trial consistent with this opinion.
       Judge LORELLO and Judge BRAILSFORD CONCUR.




                                                  8
