                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42090

STATE OF IDAHO,                                  ) 2015 Opinion No. 54
                                                 )
       Plaintiff-Respondent,                     ) Filed: August 27, 2015
                                                 )
v.                                               ) Stephen W. Kenyon, Clerk
                                                 )
LAURA LEE SMITH,                                 )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Bonner County. Hon. Barbara A. Buchanan, District Judge.

       Judgment of conviction for aiding and abetting in the delivery of a controlled
       substance, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Laura Lee Smith appeals from her judgment of conviction for aiding and abetting in the
delivery of a controlled substance. She first contends that the trial court erred by admitting the
audio recording of a nonwitness’s out-of-court statements in violation of the Confrontation
Clause. Smith also claims that the trial court erred in the admission at trial of certain testimonial
evidence that Smith characterizes as hearsay. Smith finally contends that there was insufficient
evidence to support her conviction. For the reasons set forth below, we affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       While working on an undercover sting operation in a local bar, two officers, Detective
Hight and Officer Mattingley, made video-recorded arrangements to purchase psilocybin
mushrooms from Shawn Kendle. Kendle indicated to the officers that he had a source for the

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mushrooms and that his source was in the bar. Kendle then approached Smith and spoke with
her for several minutes. Smith exited the bar and Officer Mattingley followed her into the
parking lot. Smith drove away from the lot but returned approximately ten minutes later. She
exited the vehicle holding a brown paper bag, which she carried across the parking lot to the
driver’s side of Kendle’s truck. Officer Mattingley heard a car door open and shut. Smith then
walked back across the parking lot toward the bar, the brown paper bag notably absent. The two
officers and Kendle later went back outside where Kendle exchanged a brown paper bag from
the driver’s side of his truck for the officers’ payment. The mushrooms inside the bag were later
identified as psilocybin mushrooms by police forensics. The State charged Smith with aiding
and abetting in the delivery of a controlled substance.
       At trial, Smith objected to the admission of the audio portion of the video recording
wherein Kendle could be heard saying, “I’ve got her in the bar.” Smith challenged its admission
on the grounds that she had not had “an opportunity to cross-examine [Kendle] about what he’s
saying.” The trial court overruled this objection and allowed the video playback with audio. The
court also overruled Smith’s hearsay objection to Officer Mattingley’s testimony as he described
the events within the video, specifically his statement, “[Kendle] is standing at the bar talking to
what he said was his person that could supply him with mushrooms.” At the conclusion of the
State’s case, Smith moved for a directed verdict on the basis of insufficient evidence, which the
court denied.
       The jury found Smith guilty of aiding and abetting in the delivery of a controlled
substance. The court sentenced Smith to a unified sentence of four years, with two years
determinate, but suspended the sentence and placed her on probation for three years. Smith
timely appeals.
                                                 II.
                                           ANALYSIS
       We first consider whether the trial court erred by admitting the audio portion of the video
recording of Kendle’s statement to police during their undercover operation. This requires
determining whether the admission of that audio abridged Smith’s Sixth Amendment right of
confrontation. We then separately consider whether the court erred in the admission of witness
testimony before the jury during the narration of that video.         Finally, we address Smith’s
challenge that there was insufficient evidence to support the jury’s guilty verdict.

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A.        Right of Confrontation
          On appeal, Smith argues that the trial court violated her constitutional right under the
Confrontation Clause when it admitted the audio portion of a video recording of a nonwitness.
In reviewing a potential violation of the Confrontation Clause, this Court will defer to the trial
court’s factual findings, unless they are clearly erroneous, but will exercise free review over the
trial court’s legal determinations. State v. Hooper, 145 Idaho 139, 142, 176 P.3d 911, 914
(2007).
          The Confrontation Clause of the Sixth Amendment guarantees criminal defendants the
right to confront witnesses at trial. U.S. CONST.     AMEND.   VI (“In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with witnesses against him.”). It applies only
to hearsay statements that are testimonial. Crawford v. Washington, 541 U.S. 36, 51 (2004);
State v. Stanfield, 158 Idaho 327, 332, 347 P.3d 175, 180 (2015). A statement is testimonial
when it was made with a primary objective of creating an evidentiary record to establish a fact at
trial. Davis v. Washington, 547 U.S. 813, 822 (2006) (“Statements . . . are testimonial when the
circumstances objectively indicate . . . that the primary purpose of the interrogation is to establish
or prove past events potentially relevant to later criminal prosecution.”); State v. Shackelford,
150 Idaho 355, 372-73, 247 P.3d 582, 599-600 (2010) (holding that statements of ex-wife were
not testimonial because they were not offered for their truth). Statements of individuals made
unknowingly to undercover officers are not testimonial. Davis, 547 U.S. at 825 (citing Bourjaily
v. United States, 483 U.S. 171, 181-84 (1987) and noting that “statements made unwittingly to a
Government informant” were “clearly nontestimonial”).
          At issue here are Kendle’s out-of-court statements made to undercover officers during
their sting operation. Smith broadly argues that multiple “statements of Mr. Kendle . . . were
testimonial in nature,” but she only specifically addresses the admission of Kendle’s statement,
“I’ve got her in the bar,” in reference to his source for the mushrooms. 1
          First, Kendle unwittingly made the recorded statement to undercover officers, as there is
nothing in the record to suggest that Kendle suspected he was dealing with undercover officers
or that he was being recorded. Second, the State did not offer the audio recording to prove the

1
        Smith contested only the trial court’s admission of the audio portion of the video during
trial and on appeal. However, the audio on the recording was notably unintelligible and Smith
does not contest the admissibility of any other specific statements.


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truth of the matter asserted. Instead, the State offered the audio statements on the video to
provide context for the jury as they viewed the recorded conversation between the undercover
officers and Kendle. 2 Regarding the specific statement, “I’ve got her in the bar,” the truth of this
assertion suggests nothing more than Smith’s location at the time of the conversation. We agree
with the trial court’s discretion to admit this nontestimonial statement into evidence.
       Because the statement was not testimonial, the Confrontation Clause does not apply.
Therefore, we hold that the trial court did not err in admitting the audio portion of the video
recording.
B.     Officer’s Narration as Hearsay
       Smith also challenges the trial court’s admission of Officer Mattingly’s testimony as
improper hearsay. The trial court has broad discretion in determining the admissibility of
testimonial evidence. State v. Smith, 117 Idaho 225, 232, 786 P.2d 1127, 1134 (1990). A
decision to admit or deny such evidence will not be disturbed on appeal absent a clear showing
of abuse of that discretion. Id. As discussed above, hearsay is an out-of-court statement offered
in evidence to prove the truth of the matter asserted. I.R.E. 801(c); State v. Gomez, 126 Idaho
700, 704, 889 P.2d 729, 733 (Ct. App. 1994). The hearsay rule also prohibits allowing a witness
to give a summary of an out-of-court conversation if the purpose of such testimony is to prove
the truth of the facts asserted in that conversation. Gomez, 126 Idaho at 704, 889 P.2d at 733
(describing that an explanation of a transaction constitutes hearsay if the words used indicate a
particular fact). Hearsay is inadmissible unless otherwise provided by an exception in the Idaho
Rules of Evidence or other rules of the Idaho Supreme Court. I.R.E. 802.
       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


2
         During trial, the State only argued that the video recording was admissible for the
nonhearsay purpose of demonstrating “how the case developed,” and to “put [it] in context.” On
appeal, the State adds that the statements were also offered to show Smith’s role in the
transaction. Because it was raised for the first time on appeal, we do not consider this additional
justification in reaching our decision. See, e.g., State v. Johnson, 148 Idaho 664, 670, 227 P.3d
918, 924 (2010) (noting that appellate review is limited to the arguments presented below); State
v. Davis, 155 Idaho 216, 219, 307 P.3d 1242, 1245 (Ct. App. 2013) (holding that defendant’s
nonspecific justification for admission of testimony at trial did not preserve her specific
nonhearsay justification raised for the first time on appeal).
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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).
       Smith challenges the trial court’s admission of a portion of the officer’s trial testimony.
During the playback of the video recording for the jury, the officer described the events in the
video and stated, “[Kendle] is standing at the bar talking to what he said was his person that
could supply him with mushrooms.” The officer later identified the person at the bar as Smith.
       Smith argues that this testimony constituted hearsay and did not fall within a recognized
exception. We agree. Although the State argues that the officer’s testimony gave context to the
transaction shown on the video, we are not persuaded that the officer’s statements were limited
to explanatory words providing only context.         The officer’s explanation of the recorded
transaction was a recounting of an out-of-court statement by Kendle and was an assertion of a
particular fact: that Smith was Kendle’s mushroom supplier. Further, during trial, the State did
not argue for the admission of the statement on any grounds other than it was nonhearsay; there
is nothing in the record indicating that the trial court considered admission of the statement on
any other grounds or that it instructed the jury of the statement’s limited use. On appeal, we
need not consider any other justifications besides those offered during trial.       See State v.
Johnson, 148 Idaho 664, 670, 227 P.3d 918, 924 (2010). Therefore, we conclude that the trial
court erred in admitting the officer’s hearsay testimony.
       This conclusion requires that we determine whether the error necessitates a new trial for
Smith. “Any error, defect, irregularity, or variance which does not affect substantial rights shall
be disregarded.” Idaho Criminal Rule 52; see also State v. Stoddard, 105 Idaho 169, 171, 667
P.2d 272, 274 (Ct. App. 1983) (“Error is not reversible unless it is prejudicial.”). 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 Court “must find beyond a
reasonable doubt that the jury would have reached the same result without the admission of the
challenged evidence.” State v. Field, 144 Idaho 559, 572, 165 P.3d 273, 286 (2007) (quoting
State v. Robinett, 141 Idaho 110, 113, 106 P.3d 436, 439 (2005)). Whether an error is harmless
depends upon a number of factors including the significance of the testimony in the
prosecution’s case, the presence of corroborating evidence, and whether the testimony was
cumulative. State v. Gerardo, 147 Idaho 22, 27, 205 P.3d 671, 676 (Ct. App. 2009).

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       Here, Smith alleges that this evidence was “essentially the only evidence admitted at
trial” implicating her in the mushroom delivery. However, this argument is not persuasive.
Although the probative value of this testimony was to establish Smith as the person who would
supply Kendle with mushrooms, the State presented other evidence to support this link between
Smith and the transaction. The video, by itself, showed Kendle approaching Smith at the bar and
conversing with her. Additional video and officer testimony established that Smith left the bar,
returned approximately ten minutes later, and exited a vehicle carrying a brown paper bag. She
walked across the parking lot carrying the bag, was heard opening and closing the door to
Kendle’s truck, and then walked back across the lot empty-handed. This corroborating evidence
supports the reasonable conclusion that comports with the officer’s hearsay statement that Smith
“could supply [Kendle] with mushrooms.” The improper statement was merely cumulative, it
was not prejudicial. Therefore we conclude, beyond a reasonable doubt, that the jury would have
reached the same result without the admission of the improper testimony.
C.     Sufficiency of Evidence
       Finally, Smith contends that there was insufficient evidence to support the jury’s guilty
verdict. Appellate review of the sufficiency of the evidence is limited in scope. A finding of
guilt 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 a crime beyond a reasonable doubt. 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 will not substitute our view for that of the trier of fact as to the
credibility of the witnesses, the weight to be given to the testimony, and 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). Moreover, we will 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. Substantial evidence may exist even
when the evidence presented is solely circumstantial or when there is conflicting evidence. State
v. Severson, 147 Idaho 694, 712, 215 P.3d 414, 432 (2009). Even when circumstantial evidence
could be interpreted consistently with a finding of innocence, it is sufficient to uphold a guilty
verdict when the evidence also gives rise to reasonable inferences of guilt. Id.; State v. Slawson,
124 Idaho 753, 757, 864 P.2d 199, 203 (Ct. App. 1993).

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       The State was required to prove, beyond a reasonable doubt, that Smith “delivered, or
aided and abetted in delivering, any amount of Psilocybin/Psilocyn Mushrooms . . . to another”
and that she “either knew it was Psilocybin/Psilocyn Mushrooms or believed it was a controlled
substance.” Smith asserts that the evidence, at most, shows her proximity to criminal activity,
which is not enough to support her conviction. She suggests that the evidence presented at trial
did not establish: (1) that she was working together with Kendle in the transaction; (2) that she
had the requisite knowledge that the bag contained a controlled substance; (3) that there was only
one brown paper bag in Kendle’s truck; or (4) that the bag procured by Detective Hight was the
same one allegedly placed in the truck by Smith.
       Contrary to Smith’s arguments, there is substantial evidence in the record upon which a
jury could reasonably conclude, beyond a reasonable doubt, that Smith was guilty of aiding and
abetting in the delivery of a controlled substance. Each of Smith’s contentions ignores the
sufficiency of circumstantial evidence that can support a juror’s reasonable inference of guilt.
Detective Hight testified to the jury that after indicating to Kendle an interest in purchasing
mushrooms, Kendle approached Smith in the bar.              The jury watched video playback
corroborating this testimony. Officer Mattingley testified to the jury that he witnessed Smith
drive away from the bar parking lot, return ten minutes later, walk across the parking lot to
Kendle’s truck carrying a brown paper bag, then return across the parking lot to the bar without
the brown paper bag. The video playback of the parking lot events corroborated that testimony.
Both officers testified that they obtained a brown paper bag containing the psilocybin
mushrooms from Kendle’s truck.
       The testimonial and video evidence presented to the jury formed a sufficient basis for a
reasonable inference that Smith placed a bag in Kendle’s truck; that the bag Smith placed in the
truck was the same as the one procured by the officers; and that Smith was working with Kendle
and knew that the paper bag contained psilocybin mushrooms. Because it is not this Court’s
position to assess the credibility of the witnesses or the weight of the testimony, we defer to the
jury’s assessment of the evidence presented in reaching their verdict. Therefore, we conclude
that the evidence was sufficient such that a reasonable juror could conclude Smith’s guilt beyond
a reasonable doubt.




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                                              III.
                                       CONCLUSION
       The trial court did not err when it admitted the nontestimonial audio portion of Kendle’s
statement. The admission of the hearsay testimony of Officer Mattingley was error, but such
error was harmless. Finally, the evidence was sufficient for the jury to find Smith guilty of
aiding and abetting in the delivery of a controlled substance. Accordingly, we affirm Smith’s
judgment of conviction.
       Chief Judge MELANSON and Judge GRATTON CONCUR.




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