              IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 46700

STATE OF IDAHO,                               )
                                              )    Filed: May 15, 2020
       Plaintiff-Respondent,                  )
                                              )    Karel A. Lehrman, Clerk
v.                                            )
                                              )    THIS IS AN UNPUBLISHED
MANUEL JOSE CASTRO,                           )    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. George A. Southworth, District Judge.

       Judgment of conviction for felony riot with a felony gang enhancement, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Justin R. Porter, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

BRAILSFORD, Judge
       Manuel Jose Castro appeals from his judgment of conviction for felony riot with a felony
gang enhancement, Idaho Code §§ 18-6401, 18-6402(1)(a), 18-8503(1)(b). We affirm.
                                              I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       In June 2018, a riot broke out between the members of two rival gangs incarcerated in the
Canyon County Jail.     The riot started when members of the “Southside” gang (Sureños)
overheard members of the “Northside” gang (Norteños) reciting a gang chant while exercising
and took umbrage. Castro was incarcerated at the Canyon County Jail at the time and was
affiliated with the Sureños. During the riot, Castro repeatedly punched and kicked another
inmate affiliated with the Norteños. After fighting that inmate, Castro stepped in between two
other fighting inmates, but a deputy sprayed the group with pepper spray before Castro could

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begin fighting. After the deputy left Castro to assist other deputies, Castro entered the shower
area and engaged in another bout of fighting.
        A grand jury indicted Castro for felony riot with a felony gang enhancement.               In
anticipation of trial, the State disclosed its intention to call an expert witness to explain various
aspects of gang culture. Castro objected and moved for an order in limine to disallow the State’s
proposed expert testimony and any mention of Castro’s gang affiliation. The State subsequently
filed a notice under Idaho Rule of Evidence 404(b) seeking to introduce evidence of Castro’s
gang affiliation to demonstrate gang relations “were the core or primary motive for, and impetus
of, the Riot.”
        At the motion in limine hearing, Castro argued that his gang affiliation was not relevant
and that even if it were, the risk of undue prejudice from such evidence substantially outweighed
any probative value.     The district court disagreed, ruling that evidence of Castro’s gang
affiliation while incarcerated “is highly relevant to motive and intent of what happened and
relevant to the State’s case.” Further, the court noted evidence of Castro’s gang affiliation was
“certainly prejudicial,” but the court ruled under Rule 403 that the prejudice did not “greatly
outweigh[]” the probative value.
        Although the State ultimately did not present an expert witness at trial to testify about
gang culture, the State did call two witnesses who were incarcerated with Castro at the Canyon
County Jail and were involved in the riot. Before these two witnesses testified, the district court
addressed Castro’s counsel’s concern about the extent to which the witnesses could testify about
gang involvement and reiterated its earlier ruling that evidence of gang affiliation was
admissible:
        Since the theory of the State’s case and the charge . . . requires that two or more
        “act together” in doing this, and the fights broke [out] between rival gang
        members in Caldwell, the Court . . . finds [it] is relevant for the State to bring out
        that they were rival gang members . . . on the issue of whether or not they may
        have been acting together and would allow that with the limiting instruction.
                ....
                I am allowing you to---because it’s part of [the State’s] argument that they
        acted together with somebody else--to raise the gang issue with the limiting
        instruction on that. In my mind that was a close call. But the Court has
        determined that the relevance outweighs the potential prejudice to [Castro]
        especially given the limiting instruction that I’ve shown to both counsel.
        The two witnesses who were involved in the riot testified and described the general
nature of gang relations in the jail, how gang rivalry caused the riot, and Castro’s role in the riot.
                                                  2
Further, they identified Castro as a member of the Sureño gang. During the first witness’s
testimony about these topics, the district court instructed the jury that “you may only consider
[Castro’s] alleged gang affiliation for the limited purpose of . . . how such claim may impact his
intent or motive on the alleged charge of riot.” The court again instructed the jury before
deliberations:
       [C]ertain evidence that [Castro] is allegedly affiliated with a gang was admitted
       for the limited purpose of proving intent or motive for the act of rioting. At the
       time this evidence was admitted you were admonished that it could not be
       considered by you for any purpose other than the limited purpose for which it was
       admitted. Do not consider such evidence for any purpose except the limited
       purpose for which it was admitted.
       The jury found Castro guilty of riot. Thereafter, Castro entered an Alford 1 plea to the
gang enhancement.      The district court imposed a unified sentence of seven years, all
indeterminate and consecutive to Castro’s prior sentences. Castro timely appeals.
                                                II.
                                           ANALYSIS
       Castro asserts the district court abused its discretion by admitting evidence of his gang
affiliation. The district court admitted the evidence under I.R.E. 404(b), which provides:
              (1)     Prohibited Uses. Evidence of a crime, wrong, or other act is not
       admissible to prove a person’s character in order to show that on a particular
       occasion the person acted in accordance with the character.
              (2)     Permitted Uses; Notice in a Criminal Case. This evidence may be
       admissible for another purpose, such as proving motive, opportunity, intent,
       preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In
       a criminal case, the prosecutor must:
                      (A) file and serve reasonable notice of the general nature of any
              such evidence that the prosecutor intends to offer at trial; and
                      (B) do so reasonably in advance of trial--or during trial if the court,
              for good cause shown, excuses lack of pretrial notice.
Rule 404(b) prohibits the introduction of evidence of uncharged conduct if the evidence’s
probative value is entirely dependent on its tendency to demonstrate the defendant’s propensity
or character to engage in such behavior. State v. Grist, 147 Idaho 49, 54, 205 P.3d 1185, 1190
(2009). Evidence of another crime, wrong or act, however, may implicate a person’s character


1
        See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“An individual accused of crime
may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence
even if he is unwilling or unable to admit his participation in the acts constituting the crime.”).
                                                 3
while also being relevant and admissible for a permissible purpose identified in Rule 404(b).
State v. Pepcorn, 152 Idaho 678, 688-89, 273 P.3d 1271, 1281-82 (2012).
       When determining the admissibility of evidence under Rule 404(b), the trial court must
first determine whether there is sufficient evidence of the uncharged conduct that a reasonable
jury could believe the conduct actually occurred.         If so, then the court must consider:
(1) whether the other acts are relevant to a material and 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 uncharged conduct if it is supported by substantial and competent evidence in the
record. Parmer, 147 Idaho at 214, 207 P.3d at 190. Further, this Court freely reviews the
question of relevancy as an issue of law. State v. Rawlings, 159 Idaho 498, 506, 363 P.3d 339,
347 (2015). We will not disturb, however, the district court’s balancing of the evidence’s
probative value against the danger of unfair prejudice absent an abuse of discretion. State v.
Norton, 151 Idaho 176, 190, 254 P.3d 77, 91 (Ct. App. 2011). When a trial court’s 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).
       Castro does not challenge the relevancy of his gang affiliation; rather, he argues the
district court erred by concluding the evidence’s probative value was not substantially
outweighed by the danger of unfair prejudice.        In particular, Castro challenges the court’s
conclusion that his gang affiliation was probative of his intent and motive. He argues that the
crime of riot is not a specific intent crime and that his “motive was not particularly probative” of
whether he engaged in a riot because “there was no need for an agreement under [the riot]
statute.” 2 The State responds that Castro’s gang affiliation was “necessary to demonstrate his


2
       The district court instructed the jury that for Castro to be guilty of riot, the State had to
prove (1) Castro was “acting together with one or more others”; (2) “without authority of law”;
(3) “engaged in any action or used force or violence”; (4) “which disturbed the peace”; and
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motive,” including why a chant is a provoking act of disrespect and why a gang member would
be motivated by “fear from retribution within the gang” to participate in the riot.
       This Court has previously held in State v. Wilson, 159 Idaho 412, 361 P.3d 1275 (Ct.
App. 2015), that a defendant’s gang affiliation was admissible under Rule 404(b) as evidence of
motive. In that case, Wilson, an inmate, was involved in an attack against other inmates while
incarcerated in a state correctional facility. The State charged Wilson with assault and battery 3
and filed a notice of intent under Rule 404(b) to admit evidence of Wilson’s gang affiliation.
Wilson, 159 Idaho at 413, 361 P.3d at 1276. “After weighing the prejudicial and probative
values of the evidence, the court admitted the evidence for the limited purpose of establishing the
plan, preparation and motive” under Rule 404(b). Wilson, 159 Idaho at 413, 361 P.3d at 1276.
During trial, the State offered the testimony of two correctional facility employees to explain the
“strict procedural safeguards in place to prevent individuals affiliated with certain Security
Threat Groups from having physical contact with individuals affiliated with other Security
Threat Groups” and “to explain why one group of inmates would stage an attack against a
separate group of inmates.” Wilson, 159 Idaho at 414, 361 P.3d at 1277. The jury found Wilson
guilty, and he appealed, challenging the district court’s ruling that the probative value of his gang
affiliation was not substantially outweighed by the danger of undue prejudice under Rule 403.
Wilson, 159 Idaho at 414-15, 361 P.3d at 1277-78. On appeal, this Court held that the trial court
did not abuse its discretion by admitting evidence of Wilson’s gang affiliation because the court
both properly weighed the potential for prejudice against the evidence’s probative value and took
steps to mitigate the potential for unfair prejudice. Id. at 417, 361 P.3d at 1280; see also State v.
Almaraz, 154 Idaho 584, 591, 301 P.3d 242, 249 (2013) (holding testimony of gang membership
admissible under Rule 404(b) to demonstrate motive including testimony of “how something as
simple as wearing a red shirt could trigger a rival gang member to react with violence if he felt
disrespected”).




(5) “which resulted in a physical injury to any person or a disturbance of the public peace.” See
I.C. § 18-6401 (defining riot).
3
        Although the nature of the charges is different in Wilson, Castro expressly takes the
position that the crimes of battery and riot are similar, stating that “the battery statute does not
really care why one person strikes another, just that [he] intended to strike that other person. The
same appears to be true of the riot statute.” (Citation omitted.)
                                                 5
        We hold that the district court did not abuse its discretion by admitting testimony about
Castro’s gang affiliation. The court acknowledged the potential for unfair prejudice, conducted
the balancing test to determine the evidence’s probative value was not substantially outweighed
by the danger of unfair prejudice, and mitigated any potential for unfair prejudice by twice
instructing the jury only to consider evidence of Castro’s gang affiliation for purposes of
determining motive and intent. Although Castro asserts the State was not required to prove his
intent, we do not need to address that issue because the evidence remains admissible for purposes
of determining Castro’s motive. The Idaho Supreme Court has held that “evidence of motive is
relevant when the existence of a motive is a circumstance tending to make it more probable that
the person in question did the act.” State v. Russo, 157 Idaho 299, 308, 336 P.3d 232, 241 (2014)
(internal quotation marks omitted). “Motive is a well-accepted method of proving the ultimate
facts necessary to establish the commission of a crime, without reliance upon an impermissible
inference from bad character.” Id. (internal quotation marks omitted).
        We also reject Castro’s assertion that “the negative connotations society associates with
gangs . . . is so pervasive that . . . the limiting instruction . . . did not sufficiently ameliorate the
risk of undue prejudice.” In support of this assertion, Castro cites State v. Johnson, 148 Idaho
664, 227 P.3d 918 (2010). In that case, the State charged Johnson with lewd and lascivious
conduct for molesting his minor daughter. Id. at 666, 227 P.3d at 920. During trial, the district
court admitted evidence that Johnson had molested his eight-year-old sister when he was a
teenager. Id. at 666-67, 227 P.3d at 920-21. The jury convicted Johnson, and he appealed. Id.
On appeal, the Idaho Supreme Court held that evidence of Johnson’s prior molestation of his
sister was irrelevant. Id. at 669, 227 P.3d at 923. Further, the Court held that the court’s limiting
instruction did not prevent the error from prejudicing Johnson. Id. at 670, 227 P.3d at 924. The
Court noted that “evidence of prior sexual misconduct with young children is so prejudicial that
there is a reasonable possibility this error contributed to Johnson’s conviction. . . . The danger is
too great in this sex-abuse case that the jury may have believed the prior misconduct
demonstrated [Johnson’s] deviant character traits.” Id.
        This case is distinguishable from Johnson. The Rule 404(b) evidence admitted in this
case is substantially different from the evidence admitted in Johnson. Unlike the evidence of
uncharged misconduct in Johnson, the evidence of Castro’s gang affiliation did not demonstrate
specific instances of prior similar misconduct. Rather, the evidence simply showed that the riot

                                                   6
occurred between two rival gangs and that Castro was affiliated with one of those gangs and, as a
result, was motivated to participate in the riot. Further, we decline to conclude, as Castro urges,
that evidence of gang affiliation is comparable to evidence of prior incidents of child molestation
for purposes of evaluating prejudice.       Accordingly, we hold the district court’s limiting
instructions ameliorated any risk of unfair prejudice.
                                                III.
                                         CONCLUSION
       The district court did not abuse its discretion by admitting evidence of Castro’s gang
affiliation. As a result, we affirm the judgment of conviction.
       Chief Judge HUSKEY and Judge LORELLO CONCUR.




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