                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 47324

STATE OF IDAHO,                         )
                                        )
      Plaintiff-Respondent,             )
                                                              Boise, December 2019 Term
                                        )
 v.                                     )
                                                              Opinion Filed: March 20, 2020
                                        )
MICHAEL THERON HAYES,                   )
                                                              Karel A. Lehrman, Clerk
                                        )
      Defendant-Appellant.              )
_______________________________________ )

       Appeal from the District Court of the Fourth Judicial District of the State of
       Idaho, Ada County. Samuel A. Hoagland, District Judge.

       The district court’s judgment of conviction is affirmed.

       Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Ben
       P. McGreevy argued.

       Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Kenneth K.
       Jorgensen argued.
                                   _____________________

BRODY, Justice.
       Michael Theron Hayes appeals his judgment of conviction from Ada County district
court. A jury convicted Hayes of felony battery on a correctional officer. Hayes appealed his
judgment of conviction on three grounds: (1) the district court erred by failing to issue subpoenas
for two medical professionals; (2) the district court abused its discretion by allowing the State to
inquire into prior instances of Hayes’ conduct towards correctional officers; and (3) the district
court abused its discretion by denying Hayes’ motion for a new trial. The Court of Appeals
reversed the district court’s order denying Hayes’ requests for subpoenas, and held that the
district court abused its discretion by allowing the State to inquire into prior instances of Hayes’
conduct. Accordingly, the Court of Appeals vacated the district court’s judgment of conviction
and remanded the case for a new trial. This Court granted the State’s timely petition for review.
For the reasons stated below, we affirm Hayes’ judgment of conviction.



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                  I.     FACTUAL AND PROCEDURAL BACKGROUND
        Hayes is an inmate housed at the Idaho Maximum Security Institution (IMSI). On
November 10, 2015, Correctional Officer Rachel Nettles escorted Hayes to an infraction hearing
for alleged misconduct at IMSI. During the infraction hearing, Hayes allegedly became
aggressive and non-compliant with the correctional officers. After attempts to calm Hayes failed,
Nettles and Correctional Officer Charles Johannessen attempted to secure Hayes against a nearby
wall. Hayes allegedly resisted, kicking Nettles in the shin and grabbing Johannessen in the groin.
The State charged Hayes with two counts of felony battery on a correctional officer pursuant to
Idaho Code sections 18-915(2), 18-901, and 18-903. The State also filed a persistent violator
sentencing enhancement pursuant to Idaho Code section 19-2514.
        Hayes pleaded not guilty to the battery charges, and chose to represent himself. When
Hayes chose to represent himself, the district court specifically advised Hayes about the
advantages of having counsel for discovery and witness investigation. Nevertheless, Hayes was
staunch in his desire to represent himself. After the district court ruled that Hayes would
represent himself, it appointed Ada County public defender Craig A. Steveley as Hayes’ standby
counsel.
        Prior to trial, Hayes requested subpoenas for Dr. April Dawson and nurse Kevin Kaae,
who were both contracted to provide care to inmates at IMSI through Corizon Correctional
Healthcare. In support of his subpoena requests, Hayes asserted that Dawson and Kaae would
testify at trial to the injuries he allegedly received from the correctional officers’ use of force in
the November 10, 2015 altercation. Specifically, Hayes asserted that Dawson and Kaae would
testify that: (1) after the November 10, 2015 altercation, multiple ultrasounds revealed blood in
Hayes’ urine; (2) blood was visible in Hayes’ urine to the naked eye after the November 10,
2015 altercation; (3) Hayes’ subsequent medical tests reveal that no disease or kidney stones
caused blood to appear in Hayes’ urine; and (4) Hayes’ subsequent medical tests demonstrate the
blood in his urine was caused by the November 10, 2015 altercation with the correctional
officers.
        At a pretrial hearing, the district court denied Hayes’ subpoena requests on two grounds.
First, the district court ruled that the subpoena requests were untimely. Second, the district court
concluded that, even considering the merits of Hayes’ subpoena requests, the district court did
“not find that any evidence that might be offered by Dr. [Dawson] or [nurse Kaae] is relevant to

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the question of whether or not the defendant committed this crime. Therefore, they would not be
allowed [to testify] under any circumstance.” Later in the same hearing, Hayes requested to be
represented by counsel. Hayes requested counsel just three days before his trial was scheduled to
begin. The district court subsequently appointed Stevelely—who was previously serving as
standby counsel—to represent him. As a result, Hayes’ trial date was pushed back for two
months so that Steveley could prepare a defense.
       Prior to the district court’s denial of Hayes’ subpoena requests, the State filed a motion in
limine seeking to prevent Hayes from asking the correctional officers any questions regarding
the Idaho Department of Correction’s (IDOC) guidelines for disciplinary and infraction hearings.
The State argued that questions regarding IDOC’s guidelines for conducting infraction hearings
were irrelevant to whether Hayes committed battery upon the two correctional officers. The
district court agreed that IDOC’s guidelines would not be relevant to the question of battery, and
granted the State’s motion in limine.
       At Hayes’ jury trial, he testified on his own behalf. On direct examination, he testified
that he was the victim of the November 10, 2015 altercation. Hayes alleged that, immediately
after the November 10, 2015 infraction hearing, he was battered by the correctional officers
without provocation. Hayes maintained a position of innocence, asserting that he never battered
the correctional officers. Hayes further testified that because of the correctional officers’ battery,
he sustained injuries to his back, shoulder, wrists, and hip. Hayes also testified that the injuries
he sustained caused him to urinate blood. Hayes did not make a self-defense claim.
       On cross-examination, the State inquired about Hayes’ conduct toward other correctional
officers and inmates at IMSI. Hayes testified that he was always respectful towards other inmates
and correctional officers. Outside the presence of the jury, the State requested that it be allowed
to question Hayes on his prior instances of conduct towards inmates and correctional officers.
Specifically, the State proffered approximately ten instances where Hayes threatened, verbally
abused, and disrespected other inmates and correctional officers. Hayes objected to the line of
questioning, arguing that the testimony would be unfairly prejudicial under Idaho Rule of
Evidence 403 and improper character evidence under Rule 404(b). The district court asked both
parties which rules of evidence applied. The State argued that the evidence was relevant, and that
the evidence was admissible under Rule 608(b) as evidence of Hayes’ character for



                                                  3
untruthfulness. Hayes argued that Rules 403, 404(b), and 608(b) all applied, making the
testimony inadmissible.
       The district court found that the evidence was relevant and not unfairly prejudicial, and
concluded that the testimony was relevant to Hayes’ character for truthfulness under Rule
608(b). Thus, the district court allowed the State to inquire into Hayes’ prior instances of
conduct. On the witness stand, Hayes denied that any of these prior instances of conduct
occurred. Later in the trial, the district court issued a limiting instruction to the jury regarding
Hayes’ testimony on cross-examination. The limiting instruction informed the jury that this
testimony was admitted for the limited purpose of Hayes’ credibility, and that the evidence
should not be considered for any other purpose.
       After deliberations, the jury found Hayes guilty of one count of battery—kicking officer
Nettles in the shin during the November 10, 2015 altercation. Seconds after the clerk delivered
the verdict, Hayes interrupted the district court proceeding, and announced, “Craig Steveley is
fired and the defendant is now in pro se representation.” Hayes was subsequently removed from
the courtroom for his behavior, and ultimately was allowed to discharge Steveley and proceed
pro se. The State later voluntarily dismissed the persistent violator sentencing enhancement.
       Months after the verdict, but prior to sentencing, Hayes again changed his mind on pro se
representation and moved for appointment of conflict counsel. Hayes, through conflict counsel,
filed a motion for a new trial. In support of the motion, Hayes argued that the district court erred
in granting the State’s motion in limine to prohibit any questions related to IDOC’s guidelines
for conducting infraction hearings. Hayes asserted that the guidelines were relevant to whether
the correctional officers had a “motive to lie” about their behavior during the altercation, and
whether they complied with such guidelines. The district court subsequently denied Hayes’
motion for a new trial. In denying the motion, the district court found that questions regarding
IDOC’s infraction hearing guidelines were irrelevant to the issues at trial. Further, the district
court found that even if the guidelines were relevant, the testimony would be inadmissible as “a
waste of time, confusing the issues, and misleading the jury” under I.R.E. 403.
       The district court imposed a fixed determinate sentence of two and one half-years to be
served consecutively with the sentence Hayes is currently serving. Hayes timely appealed the
judgment of conviction. On appeal, the Court of Appeals reversed the district court’s order
denying Hayes’ requests for subpoenas, and held that the district court abused its discretion by

                                                  4
allowing the State to inquire into prior instances of Hayes’ conduct. Accordingly, the Court of
Appeals vacated the judgment of conviction and remanded the case for a new trial. The State
filed a timely petition for review. This Court subsequently granted that petition. We affirm the
judgment of conviction.
                               II.    STANDARD OF REVIEW
       “In cases that come before this Court on a petition for review of a Court of Appeals
decision, this Court gives serious consideration to the views of the Court of Appeals, but directly
reviews the decision of the lower court.” State v. Garcia-Rodriguez, 162 Idaho 271, 274, 396
P.3d 700, 703 (2017) (quoting State v. Oliver, 144 Idaho 722, 724, 170 P.3d 387, 389 (2007)).
“This Court thus acts as if the case were on direct appeal from the district court.” Id. (quoting
State v. James, 148 Idaho 574, 576, 225 P.3d 1169, 1171 (2010)).
                                       III.    ANALYSIS
   A. The district court did not err in declining to issue subpoenas for Dawson and Kaae
      because Hayes’ request was untimely.
       On appeal, Hayes argues that the district court erred when it declined to issue subpoenas
directing Dr. Dawson and nurse Kaae to testify for Hayes at trial. Specifically, Hayes attacks the
district court’s conclusion that Dawson and Kaae’s testimony would not be relevant to the issues
in Hayes’ case. Hayes argues that testimony regarding evidence of blood in his urine and medical
tests that ruled out disease and kidney stones were relevant because they supported his assertion
that he sustained injuries after the officers battered him. Thus, Hayes asserts that the evidence is
relevant to support his innocence defense.
       1. Hayes’ claim of error is not moot.
       As a preliminary matter, we address the State’s mootness argument. The State argues that
Hayes’ pro se subpoena requests for Dawson and Kaae to testify became moot when he elected
to be represented by counsel. The State asserts that decisions regarding what witnesses to call at
trial are for counsel, and that Hayes relinquished this decision when he elected to be represented
by counsel. According to the State, once Hayes elected to be represented by counsel he “no
longer had a legally cognizable interest in issuing subpoenas pro se.” We disagree.
       Whether an appeal is moot is a question of jurisdiction and may be raised at any time.
Podsaid v. State Outfitters & Guides Licensing Bd., 159 Idaho 70, 73, 356 P.3d 363, 366 (2015)
(citing Arambarri v. Armstrong, 152 Idaho 734, 738, 274 P.3d 1249, 1253 (2012)). A case is
moot “if the party lacks a legally cognizable interest in the outcome or if it does not present a
                                                 5
real and substantial controversy that is capable of being concluded through judicial decree or
specific relief.” Smith v. Smith, 160 Idaho 778, 785, 379 P.3d 1048, 1055 (2016) (quoting
Podsaid, 159 Idaho at 73, 356 P.3d at 366) (internal quotation marks omitted).
       Whether Hayes was pro se or represented by counsel, he still had a legally cognizable
interest in which witnesses are called at his trial. Facing two counts of battery and a persistent
violator sentencing enhancement, Hayes had a clear interest in the outcome of his trial because
his own liberty was at stake. The State curiously argues that the district court’s denial of the
subpoena request did not “in any way [affect Steveley’s] (Hayes’ appointed counsel) choice of
witnesses.” This statement improperly frames the issue. The inquiry is not whether Steveley was
limited in his choice of witnesses, but rather whether Hayes has a legally cognizable interest in
the outcome of his trial. Even if the choice of witnesses was solely within Steveley’s control,
Hayes’ interest in the outcome of the trial did not vanish. Importantly, there was no reason for
Steveley to assume that the district court’s pretrial rulings on the motions brought by Hayes were
no longer in effect by virtue of his appointment to represent Hayes. To be clear, there is no court
rule or case law that would have prevented Steveley from requesting the subpoenas again after
assuming representation. In fact, Steveley could have moved the district court to issue the
subpoenas again after assuming representation. Idaho Criminal Rule 17—which governs
subpoena requests—places no limits on the amount of times a party may seek to subpoena
witnesses. See I.C.R. 17. However, the mere fact that Steveley could have sought the subpoenas
again does not render this issue moot for Hayes. Additionally, the denial of Hayes’ subpoena
request is capable of being remedied through judicial relief, as demonstrated by the Court of
Appeals reversing the district court’s decision. Thus, this issue is not moot.
       2. Hayes’ subpoena request was untimely.
       On appeal, Hayes’ sole argument regarding his subpoena request is that the district court
erred when it concluded the request was irrelevant. Crucially, however, Hayes does not challenge
the district court’s conclusion that his subpoena request was untimely. At a pretrial hearing on
November 1, 2016, the district court instructed Hayes that any subpoena requests needed to be
submitted in writing to the court by November 22, 2016, so that the court would have time to
examine and rule on the requests at a pretrial conference set for December 2, 2016. The court
minutes from the November 1, 2016 hearing reflect this instruction: “[r]equest for subpoena,
defendant needs to prepare a list of witnesses identifies [sic] who it has [sic] relevant evidence, a

                                                 6
brief summary of the relevant information, [and it] needs to be filed by 11/22 and [the court] will
decide on 12/2 who will be [subpoenaed].”
       Hayes did not file his request for subpoenas until December 2, 2016. Later that same day,
at pretrial conference, Hayes blamed a November 17, 2016 closure of the prison law library for
delaying the filing of his subpoena requests. The district court ruled on Hayes’ subpoena requests
a week later at another pretrial conference. The district court found that Hayes’ witness list and
subpoena requests were “supposed to have [been] provided to the court and counsel by the
hearing on [November] 22nd. Again, that’s information that should have been provided to the
parties and the request for subpoenas in all matters in that regard are denied for lack of
timeliness.” After denying Hayes’ subpoena request due to untimeliness, the district court
continued to deny the subpoena requests on the merits, finding that the proposed testimony they
sought was irrelevant to the issues at trial. Thus, the record indicates that the district court denied
Hayes’ subpoena requests on two independent grounds: timeliness and relevance.
       Pro se litigants are held to the same standards and rules as those represented by an
attorney. Suitts v. Nix, 141 Idaho 706, 709, 117 P.3d 120, 123 (2005). “When a decision is based
upon alternate grounds, the fact that one of the grounds may be in error is of no consequence and
may be disregarded if the judgment can be sustained upon one of the other grounds.” Doe v. Doe,
159 Idaho 461, 464, 362 P.3d 536, 539 (2015) (quoting Andersen v. Prof’l Escrow Servs., Inc.,
141 Idaho 743, 746, 118 P.3d 75, 78 (2005)) (internal quotation marks omitted). Hayes does not
challenge the district court’s timeliness ruling on appeal. Because Hayes provides no argument
that the district court erred in denying his subpoena request for lack of timeliness, we affirm the
district court’s denial of the subpoena request without reaching the merits of Hayes’ relevance
arguments.
       At oral argument, Hayes argued that, despite not challenging the district court’s
timeliness ruling, State v. DuValt, 131 Idaho 550, 961 P.2d 641 (1998), allows this Court to
consider the merits of the district court’s alternative relevance ruling. We disagree. In DuValt,
this Court explained that issues not raised in the trial court may not be raised for the first time on
appeal. 131 Idaho at 554, 961 P.2d at 644. The Court further explained that an exception to this
rule exists when the issue was argued to or decided by the trial court. Id. DuValt, however, does
not speak to this Court’s precedent regarding alternative holdings. See id. Whether an issue can
be raised on appeal has nothing to do with whether there were alternative grounds for a ruling in

                                                  7
the trial court. Here, the State has not asserted that the timeliness issue was raised for the first
time on appeal. To the contrary, Hayes argues that the State failed to raise a timeliness argument
in its briefing. Hayes, however, bore the burden of demonstrating error in the lower court. State
v. Wallace, 98 Idaho 318, 320, 563 P.2d 42, 44 (1977). The district court’s decision was based on
alternative grounds, and as such, Hayes bore the burden of demonstrating error in both grounds.
Doe, 159 Idaho at 464, 362 P.3d at 539. Hayes failed to challenge the district court’s timeliness
ruling. Therefore, Hayes failed to meet his burden, and we affirm the district court.
   B. The district court did not err in admitting evidence of Hayes’ prior instances of
      conduct.
       Hayes contends that the district court abused its discretion by allowing the State to
inquire into past instances of Hayes’ conduct on cross-examination. Hayes testified in his own
defense at trial. During his direct examination, Hayes limited his testimony to his recollection of
the November 10, 2015 altercation and resulting injuries. On cross-examination, the prosecutor
immediately inquired into Hayes’ prior conduct at IMSI. Specifically, the prosecutor asked
Hayes about his conduct towards other inmates and guards, asking: “You’re always respectful of
other inmates?” and “you are respectful of the guards all the time out at [IMSI]?” Hayes
responded “yes” to both questions. The prosecutor then asked to approach the bench and speak
outside the presence of the jury.
       Outside the presence of the jury, the prosecutor notified the district court that the State
intended to inquire about prior instances of Hayes’ conduct that contradicted his testimony. In
support of this inquiry, the prosecutor asserted:
       “[T]he State elicited testimony from the defendant that he is respectful at all times
       to other guards. He’s also previously testified that he’s been in prison for 12
       years. And in addition, has on direct portrayed himself as a disabled, docile,
       passive victim of this situation that happened on November 10th.”
The prosecutor proffered approximately ten instances of prior conduct where Hayes threatened,
verbally abused, and disrespected other inmates and correctional officers. Hayes objected to the
line of questioning, arguing that the inquiry should not be allowed under I.R.E. 403 and 404(b).
Additionally, Hayes argued that he did not open the door to this testimony, stating: “we never
went into that. We never said this guy was a saint. We never put on any evidence that he’s a
good character.”
       Before ruling on the evidence, the district court asked the parties what rules of evidence
applied. The State argued that 608(b) applied, and Hayes argued that I.R.E. 403, 404(b), and
                                                    8
608(b) all applied. The district court found that I.R.E. 403 is always applicable, and that I.R.E.
404(b) did not apply to the inquiry. Specifically, regarding I.R.E. 403, the district court found
that the proposed testimony was not unfairly prejudicial. Further, the district court found that the
proposed testimony was probative to the question of whether Hayes was truthful on the witness
stand. Regarding I.R.E. 608(b), the district court stated that “the rule at issue is the question of
attacking his credibility. That’s a 608 question.” Thus, the district court determined that the
State’s inquiry into Hayes’ prior instances of conduct on cross-examination was (1) relevant, and
(2) permissible under I.R.E. 608(b).
       On appeal, Hayes argues that the district court erred in concluding that I.R.E. 608(b)
applied to allow the State to inquire into these prior instances. Hayes argues that the prior
instances of conduct do not demonstrate character for truthfulness, but rather are character
evidence of respectfulness, for which I.R.E. 608(b) does not permit inquiry. Hayes further argues
that, even if the prior conduct was relevant to Hayes’ character for untruthfulness, the danger of
unfair prejudice substantially outweighed any probative value of the prior conduct. Notably,
Hayes does not challenge the district court’s 404(b) ruling on appeal.
       1.      Hayes’ Rule 608(b) challenge.
       When reviewing the trial court’s evidentiary rulings, this Court applies an abuse of
discretion standard. State v. Jones, 160 Idaho 449, 450, 375 P.3d 279, 280 (2016). To determine
if a trial court abused its discretion, this Court considers whether the trial court (1) perceived the
issue as one of discretion, (2) acted within the outer boundaries of that discretion, (3) acted
consistently with the legal standards applicable to the specific choices available to it, and (4)
reached its decision by an exercise of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863,
421 P.3d 187, 195 (2018).
       At the time of Hayes’ trial, I.R.E. 608(b) provided:
       Specific instances of the conduct of a witness, for the purpose of attacking or
       supporting the credibility, of the witness, other than conviction of crime as
       provided in Rule 609, may not be proved by extrinsic evidence. They may,
       however, in the discretion of the court, if probative of truthfulness or
       untruthfulness, be inquired into on cross-examination of the witness concerning
       (1) the character of the witness for truthfulness or untruthfulness, or (2) the
       character for truthfulness or untruthfulness of another witness as to which
       character the witness being cross-examined has testified.
I.R.E. 608(b) (2017) (emphasis added).


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       Before addressing whether the district court correctly applied I.R.E. 608(b), it is
important to frame Hayes’ objection in the larger context of evidence law. It is well understood
that all “relevant evidence is admissible, unless otherwise provided by the Idaho Rules of
Evidence or other rules for the courts of Idaho.” State v. Ehrlick, 158 Idaho 900, 926, 354 P.3d
462, 488 (2015). The burden is on the opponent of the evidence to establish that relevant
evidence is otherwise inadmissible. Soria v. Sierra Pac. Airlines, Inc., 111 Idaho 594, 617–18,
726 P.2d 706, 729–30 (1986) (“Having offered relevant evidence for a permissible purpose, the
burden is on its opponent (not on the proponent) to show that prejudice will result from its
admission.”). Further, I.R.E. 608(b) is a rule of inclusion, rather than an exclusionary rule. Thus,
even if the district court did not apply I.R.E. 608(b) correctly, the evidence would still be
admissible if it was relevant unless there is another rule that requires its exclusion.
       Here, the district court determined that the proffered cross-examination was relevant and
not unfairly prejudicial under I.R.E. 403, and not improper character evidence under I.R.E.
404(b). Thus, even if Hayes shows error in the district court’s application of I.R.E. 608(b), he
still must demonstrate that the district court’s I.R.E. 403 or 404(b) analysis was erroneous. Hayes
does not challenge the district court’s ruling that I.R.E. 404(b) did not apply. Thus, Hayes
waived this issue on appeal. See Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 1152
(2010). Because Hayes failed to demonstrate an alternative basis to exclude the evidence on
cross-examination, we cannot hold that the district court erred in allowing the questions on cross-
examination.
       Turning to the district court’s application of I.R.E. 608(b), the rule allows a witness to be
questioned about prior instances of conduct on cross-examination. I.R.E.608(b). However, the
rule is clear that the inquiry is limited to “the character of the witness for truthfulness or
untruthfulness.” Id. Here, Hayes contends that the specific instances of conduct raised on cross-
examination were not relevant to his character for truthfulness or untruthfulness. The prior
conduct, according to Hayes, had no probative value on his propensity to lie or his veracity.
Rather, Hayes argues that the prior conduct contradicts his earlier testimony on cross-
examination that he was always respectful to other guards and inmates. Essentially, Hayes argues
that prior conduct exhibited a character trait of disrespect instead of character for untruthfulness.
       This Court has not specifically addressed whether extrinsic evidence demonstrating a
contradiction in the witness’s testimony is probative to character for truthfulness or

                                                  10
untruthfulness. In analyzing what extrinsic evidence is probative of character for truthfulness or
untruthfulness, Idaho precedent is inconsistent. See State v. Araiza, 124 Idaho 82, 90, 856 P.2d
872, 880 (1993) (holding that the district court did not abuse its discretion in excluding extrinsic
evidence of a witness perjuring himself in a prior trial under I.R.E. 608(b)); see also State v.
Bergerud, 155 Idaho 705, 710, 316 P.3d 117, 122 (Ct. App. 2013) (holding that extrinsic
evidence of a witness lying to police in the past was probative of a witness’s character for
untruthfulness under I.R.E. 608(b)). Some decisions appear to limit character of untruthfulness to
past instances of lying. See Bergerud, 155 Idaho at 710, 316 P.3d at 122. Others appear to
deviate from that standard. For example, in Araiza, this Court upheld a district court’s decision to
prevent cross-examination of a prior instance of perjury at a previous trial. See Araiza, 124 Idaho
at 90, 856 P.2d at 880. Further, in State v. Guinn, 114 Idaho 30, 39, 752 P.2d 632, 641 (Ct. App.
1988), the Court of Appeals refused to “set down a hard and fast rule of admissibility” between
contradictory testimony and character for untruthfulness for I.R.E. 608(b). Id. Thus, some Idaho
decisions consider extrinsic evidence of a witness’s character for truthfulness or untruthfulness to
be prior conduct of lying or dishonesty, while others do not employ such a strict standard.
       However, Idaho case law distinguishes between evidence of character for untruthfulness
and impeachment evidence. For example, in Pierson v. Brooks, 115 Idaho 529, 533, 768 P.2d
792, 796 (Ct. App. 1989), the Court of Appeals distinguishes between impeachment by
contradiction and reputation and opinion evidence of a witness’s character for truthfulness or
untruthfulness. Id. The court held that “cross-examination which attacks the witness’s testimony,
but which contains no personal attack on the witness’s veracity, does not trigger a right to
present opinion testimony on the witness’s character for truthfulness.” Other jurisdictions draw
similar distinctions between evidence of a witness’s character for truthfulness or untruthfulness
and impeaching a witness’s credibility through contradiction, bias, or undue influence. See
Garner v. State, 264 P.3d 811, 817–18 (Wyo. 2011); State v. Corona, 436 P.3d 174, 179 (Utah
Ct. App. 2018).
       Given that Idaho’s precedent on 608(b) is unclear, an examination of the rule’s federal
counterpart is appropriate. Federal Rule of Evidence 608(b) is similar to Idaho’s rule. See Fed. R.
Evid. 608(b). A leading commentator on the federal rules has explained that the rule allows
evidence of a witness’ general character for veracity, not whether specific testimony is correct:



                                                11
       [I]t should be clear that ‘truthfulness or untruthfulness’ refers to the general
       character of the witness for veracity, not whether specific testimony of the witness
       is correct. Thus, evidence of witness conduct can be admitted under this provision
       only when it is probative of truthful or untruthful character. By the same token,
       evidence of specific instances which is not admissible under Rule 608(b) might
       still be admitted to impeach by contradiction, bias, or lack of capacity.
28 Charles A. Wright & Victor J. Gold, Federal Practice and Procedure § 6118 (2d ed. 2019).
       Federal courts also consistently distinguish between impeachment by contradiction and
evidence of a witness’s character for truthfulness or untruthfulness. In United States v. Castillo,
181 F.3d 1129, 1132 (9th Cir. 1999), the Ninth Circuit held that “impeachment by contradiction
is not governed by [Rule 608(b)].” Id. The Ninth Circuit further explained:
       Rule 608(b) prohibits the use of extrinsic evidence of conduct to impeach a
       witness’ credibility in terms of his general veracity. In contrast, the concept of
       impeachment by contradiction permits courts to admit extrinsic evidence that
       specific testimony is false, because contradicted [sic] by other evidence [of] direct
       examination testimony containing a broad disclaimer of misconduct sometimes
       can open the door for extrinsic evidence to contradict even though the
       contradictory evidence is otherwise inadmissible under Rules 404 and 608(b) and
       is, thus, collateral.
Id. at 1132–33 (quoting 2A Charles A. Wright & Victor J. Gold, Federal Practice and
Procedure § 6119 (1993)). Thus, the Ninth Circuit recognizes a distinction between evidence
governed by Rule 608(b) and evidence offered to impeach by contradiction. Id. at 1133; see also
United States v. Chu, 5 F.3d 1244, 1249 (9th Cir. 1993). The Ninth Circuit also views character
of untruthfulness to be prior instances of lying or fraud. See United States v. Gay, 967 F.2d 322,
328 (9th Cir. 1992) (“Evidence of prior frauds is considered probative of the witness’s character
for truthfulness or untruthfulness.”).
       After examining this Court’s precedent and interpretations of the federal rules, we
conclude that I.R.E. 608(b) applies to prior instances of conduct that bear on a witness’s
character for truthfulness or untruthfulness. These situations are limited to prior instances where
the witness lied, committed fraud, or otherwise acted untruthfully. See Wright § 6118. Further,
608(b) does not apply to admit evidence of impeachment by contradiction, which is
distinguished from evidence of a witness’s character for untruthfulness. See Pierson, 115 Idaho
at 533, 768 P.2d at 796; see also Castillo, 181 F.3d at 1132.
       Here, the prior instances of Hayes’ conduct elicited on cross-examination were not
probative to his character for truthfulness or untruthfulness. None of the prior instances of


                                                12
conduct placed his veracity in question. In other words, none of the prior instances pertained to a
situation in which Hayes lied, perjured himself, or acted dishonestly. Instead, the instances of
conduct depicted Hayes as aggressive, disrespectful, and threatening towards correctional
officers and fellow inmates. For example, the prior instances of conduct involve Hayes
threatening an officer, saying that he was going to knock her through a wall, and yelling a racial
slur at another inmate. Thus, these instances are not probative of Hayes’ character for
truthfulness or untruthfulness. Instead, the prior instances of conduct are evidence of
impeachment by contradiction. Rather than demonstrate character of truthfulness or
untruthfulness, the evidence of prior conduct directly contradicts statements that Hayes made on
the witness stand that he was always respectful of guards and other inmates. Thus, the district
court misapplied I.R.E. 608(b) in allowing the state to inquire into Hayes’ prior instances of
conduct.
       Despite the district court’s misapplication of I.R.E. 608(b), the evidence was still
admissible. After examining the record, the prior instances of conduct were admissible evidence
of impeachment by contradiction. When the district court ruled on the prior instances of conduct,
it rejected Hayes’ objections on based on I.R.E. 403 and 404(b). The district court found that the
evidence was relevant and probative to Hayes’ credibility, and that it was not unfairly prejudicial
under I.R.E. 403. All relevant evidence is admissible, unless otherwise provided by the I.R.E. or
other Idaho court rules. Ehrlick, 158 Idaho at 926, 354 P.3d at 488. Hayes bore the burden of
establishing that the relevant evidence was otherwise inadmissible. Soria, 111 Idaho at 617–18,
726 P.2d at 729–30. Hayes failed to meet that burden. The district court rejected Hayes’ two
bases for exclusion: I.R.E. 403 and I.R.E. 404(b). Thus, despite the district court’s incorrect
application of I.R.E. 608(b), the evidence of Hayes’ prior conduct was nonetheless admissible.
Idaho Rule of Evidence 607 states that “[a]ny party, including the party that called the witness,
may attack the witness’s credibility.” I.R.E. 607. The State had no burden to demonstrate that the
relevant evidence was admissible. Soria, 111 Idaho at 617–18, 726 P.2d at 729–30. Rather,
Hayes bore the burden to oppose the evidence and provide a basis for exclusion. As explained
below, Hayes’ alternative basis for exclusion—I.R.E. 403—also fails. Thus, the prior conduct
was admissible to attack Hayes’ credibility through impeachment by contradiction.
       Hayes argues that the State failed to raise I.R.E. 607 as grounds for admission at trial.
Hayes argues that the State cannot argue for the first time on appeal that the evidence would be

                                                13
admissible under I.R.E. 607. We disagree. At trial, the burden was on Hayes to exclude the
evidence, not on the State to provide a basis for admission. Thus, the State’s failure to raise
I.R.E. 607 at trial does not change the analysis here. Accordingly, Hayes’ prior instances of
conduct were admissible as impeachment evidence despite the district court’s improper
application of I.R.E. 608(b).
       2. Hayes’ Rule 403 challenge.
       Alternatively, Hayes argues that district court abused its discretion in finding that his
prior instances of conduct were not substantially outweighed by the danger of unfair prejudice
under I.R.E. 403. Hayes asserts that the evidence was “extremely prejudicial and far
outweighed” any probative value to his character for truthfulness. We disagree.
       When the district court considered this evidence at Hayes’ trial, I.R.E. 403 provided:
“Although relevant, evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusing of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needlessly presenting cumulative evidence.”
I.R.E. 403 (2017).
       The district court did not abuse its discretion in weighing the evidence. The district court
found that the evidence was “relevant to the question of credibility,” and “probative to the
question of whether or not the defendant was truthful on the witness stand.” The district court
also considered the prejudicial value of the cross-examination, and attempted to limit the
prejudicial effect. For instance, the district court limited the inquiry to asking Hayes about the
prior instances of conduct; no follow up questions were allowed after Hayes’ responses. The
district court also stated that Hayes would have leeway in the form of redirect examination and
issued a limiting instruction to the jury that the prior instances could only be used for credibility
purposes. To be clear, the evidence of Hayes’ prior instances of conduct was prejudicial to his
case. The instances of conduct demonstrate threatening and aggressive behavior towards guards
and other inmates. However, the standard is whether the unfair prejudicial value of the evidence
substantially outweighs its probative value. Here, that is not the case. The probative value of the
evidence goes directly to Hayes’ credibility and veracity on the witness stand. Credibility of the
witness is always at issue. Araiza, 124 Idaho at 91, 856 P.2d at 881. Thus, the district court
properly weighed the evidence’s probative value with its unfair prejudicial effect, and



                                                 14
determined that the evidence was not unfairly prejudicial. Accordingly, the district court did not
abuse its discretion.
   C. The district court did not err in denying Hayes’ motion for a new trial.
       Hayes also argues that the district court abused its discretion by denying his post-trial
motion for a new trial. Specifically, Hayes argues that the district court’s order granting the
State’s motion in limine prevented him from properly impeaching the correctional officers
regarding their behavior during the November 10, 2015 altercation. Hayes argues that, because
credibility is always relevant and at issue, the IDOC prison guidelines were relevant to the
correctional officers’ motive to lie. Additionally, Hayes argues that the probative value of
questions regarding IDOC guidelines and policies are not substantially outweighed by the danger
of wasting time, confusing issues, and misleading the jury.
       At the time Hayes filed his motion for a new trial, Idaho Criminal Rule 34 provided,
“[o]n the defendant’s motion, the court may vacate any judgment and grant a new trial on any
ground permitted by statute.” I.C.R. 34(a) (2017). I.C.R. 34 affords the trial court discretion to
order a new trial, but Idaho Code section 19-2406 provides “the only grounds permitting the
grant of a new trial and, therefore, limits the instances in which the trial court’s discretion may
be exercised.” State v. Ellington, 157 Idaho 480, 485, 337 P.3d 639, 644 (2014) (quoting State v.
Cantu, 129 Idaho 673, 675, 931 P.2d 1191, 1193 (1997)) (internal quotation marks omitted).
Hayes challenges the denial of his motion for a new trial based on Idaho Code section 19-
2406(5), which provides:
       When a verdict has been rendered against the defendant the court may, upon his
       application, grant a new trial in the following cases only:
       ...
           (5) When the court has misdirected the jury in a matter of law, or has erred
           in the decision of any question of law arising during the course of trial.
I.C. § 19-2406(5). The issue of relevance is a question of law over which this Court exercises
free review. State v. Raudebaugh, 124 Idaho 758, 766, 864 P.2d 596, 604 (1993). Accordingly,
the exclusion of relevant evidence would be error as a matter of law—one of the statutory
grounds for a new trial. State v. Carlson, 134 Idaho 389, 397, 3 P.3d 67, 75 (Ct. App. 2000). This
Court reviews the district court’s weighting process under I.R.E. 403 for an abuse of discretion.
State v. Kralovec, 161 Idaho 569, 574, 388 P.3d 583, 588 (2017).



                                                15
       On appeal, Hayes challenges two of the district court’s evidentiary rulings in denying his
motion for a new trial: (1) the district court erred as a matter of law in finding that questioning
the correctional officers about IDOC infraction hearing guidelines was irrelevant to his case; and
(2) the district court abused its discretion in finding that even if the questions were relevant, they
would be excluded under I.R.E. 403. We address these rulings in turn.
       1. The district court did not err as a matter of law in finding questions regarding
          IDOC’s disciplinary and infraction hearing guidelines irrelevant.
       Hayes contends that the district court erred in ruling that questions to the correctional
officers regarding IDOC guidelines were irrelevant. Hayes argues that IDOC guidelines for
disciplinary hearings and infraction hearings were relevant because they related to the
correctional officers’ motivation to lie. Essentially, Hayes bases his argument on credibility.
Hayes asserts that the credibility of a witness is always relevant and at issue in trial. Thus,
because the district court denied Hayes an opportunity to question the correctional officers on
their credibility—e.g., their motivation to lie—the district court erroneously excluded relevant
evidence.
       Hayes relies on State v. Araiza, 124 Idaho 82, 856 P.2d 872 (1993), where this Court held
that the Sixth Amendment allows a defendant to inquire on cross-examination into the potential
bias or motive of a witness. Id. at 91, 856 P.3d at 881 (citing Davis v. Alaska, 415 U.S. 308, 319
(1974)). This Court further held that, “[i]n order to give meaning to the right to confront a
witness, the defendant must be permitted to do more than merely ask whether a witness is biased,
but must be allowed to show why the witness might be biased by presenting the facts necessary
to allow the jurors to form inferences regarding the witness’ impartiality.” Id. Further, Hayes
argues that Araiza supports his position that “bias, prejudice, or motive of a witness to lie
concerning issues presented in trial is always material and relevant to effective cross-
examination.” Id. (emphasis added). Hayes argues that questioning the correctional officers on
IDOC’s guidelines was relevant to their motivation to lie about the way in which they conducted
the infraction hearing, why they used force on Hayes, and their desire to cover up their violation
of guidelines during the incident. Thus, Hayes argues that it was error for the district court to
prevent him from questioning the correctional officers about their potential motivation to lie on
relevance grounds, because such questions are always relevant.
       Clarifying exactly what questions Hayes was prevented from asking through the State’s
motion in limine is an important starting point in this analysis. Hayes claims he was prevented
                                                 16
from asking the correctional officers questions about IDOC guidelines in three areas: (1)
conducting disciplinary hearings; (2) conducting infraction hearings; and (3) the use of force.
The State’s motion in limine and the district court’s order granting the State’s motion in limine
make no mention of questions regarding the use of force or IDOC’s guidelines for the use of
force. Thus, Hayes was not prevented, at least through the State’s motion in limine, from asking
the correctional officers about their compliance with IDOC’s use of force guidelines at trial.
Accordingly, the inquiry here is limited to what questions Hayes was prevented from asking the
correctional officers about from the State’s motion in limine—IDOC guidelines regarding
disciplinary and infraction hearings.
       Viewing IDOC’s guidelines for disciplinary and infraction hearings under the plain
language of I.R.E. 401, the guidelines are not relevant. The IDOC guidelines do not make a fact
of consequence more or less probable in determining whether Hayes battered the correctional
officers. See I.R.E. 401. Further, the IDOC guidelines do not bear on Hayes’ asserted innocence
defense. Hayes contends that he never touched, let alone battered, the correctional officers. The
mere existence of IDOC guidelines pertaining to infraction hearings do not by themselves make
Hayes’ innocence defense more or less likely.
       However, Hayes’ arguments regarding the relevance of the IDOC guidelines are solely
based in credibility. These arguments are more persuasive given this Court’s precedent in Araiza.
The State argues that the mere existence of IDOC guidelines does not suggest that the
correctional officers had a motivation to lie about their behavior in conducting the infraction
hearing. Hayes appears to agree, arguing that “the guidelines themselves did not serve to ‘create
an incentive to lie’[.]” Rather, Hayes argues that the correctional officers’ desire to cover up their
own alleged IDOC guideline violations served as a motivation to give false testimony.
       Despite this Court’s precedent in Araiza, questioning the correctional officers regarding
the guidelines is not relevant to the correctional officers’ credibility on the witness stand. First,
the record does not show that Hayes alleged any specific violations of disciplinary or infraction
hearing guidelines. Rather, Hayes asserts that the correctional officers violated a general
“tolerance” policy from 1997, and IDOC use of force policies. In a pretrial motion to introduce
Rule 404(b) evidence, Hayes argued that the correctional officers disregarded IDOC standard
operating procedure 318.02.01.001. This procedure is contained in a thirty-nine page document
that is available to the public and was produced to Hayes in discovery. The document establishes

                                                 17
guidelines for ensuring the inmate disciplinary system is managed consistently throughout IDOC
and applies to all IDOC staff members and inmates. However, regarding disciplinary and
infraction hearing guidelines, Hayes cannot articulate what specific infraction guidelines within
318.02.01.001 the correctional officers violated. Thus, Hayes failed to provide a sufficient offer
of proof as to why questioning the correctional officers on IDOC’s guidelines for disciplinary
and infraction hearings would be relevant to his case. See State v. Joslin, 145 Idaho 75, 82, 175
P.3d 764, 771 (2007) (“The purpose of an offer of proof is to make a record either for appeal or
to enable the court to rule on the admissibility of proffered evidence.”). This Court does not
search the record for error, and the party alleging the error has the burden of showing it in the
record. Akers v. D.L. White Constr., Inc., 156 Idaho 37, 48, 320 P.3d 428, 439 (2014). Thus,
Hayes failed to make a sufficient offer of proof to support his relevance argument on appeal.
       Second, Hayes’ reliance on Araiza is misplaced. Araiza is distinguished from the
situation here. The defendant in Araiza did not challenge the limitation of cross-examination on
relevance grounds under I.R.E. 401. 124 Idaho at 91, 856 P.3d at 881. Rather, the defendant
asserted that the trial court abused its discretion under I.R.E. 608(b) and violated his
constitutional right to confront a witness. Id. Here, Hayes limits his challenge to relevance alone.
Furthermore, contrary to Hayes’ position, Araiza also clarifies that “[a] defendant’s right to
confront a witness is not absolute. The trial court may reasonably limit cross-examination that is
harassing, confusing, repetitive, or only marginally relevant.” Id. (citing Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986)). Additionally, in Araiza, this Court held that limiting the
scope of cross-examination did not interfere with the defendant’s right to conduct a full cross-
examination because the proposed cross-examination “went to a collateral issue[.]” Id. We
acknowledge that credibility is always at issue, but Araiza gives the district court discretion in
limiting the scope of cross-examination where the testimony is marginally relevant or pertains to
a collateral issue. See id. Here, the correctional officers’ compliance with infraction hearing
guidelines is marginally relevant at best and is a collateral issue to battery. Therefore, the district
correctly applied the applicable legal standards under Lunneborg’s third prong in granting the
State’s motion in limine. Accordingly, the district court did not abuse its discretion in denying
Hayes’ motion for a new trial on relevance grounds.




                                                  18
       2. The district court did not abuse its discretion in finding questions regarding
          IDOC’s infraction hearing guidelines inadmissible under I.R.E. 403.
        The district court provided an alternative ground for denying Hayes’ motion for a new
trial. The district court found that even if questions about IDOC’s guidelines for infraction
hearings were marginally relevant, they were inadmissible under I.R.E. 403 as a waste of time,
confusing issues for the jury, and misleading the jury. Hayes argues that the district court abused
its discretion denying his motion for a new trial on this basis. We disagree.
       When the district court denied Hayes’ motion for a new trial, I.R.E. 403 provided:
“Although relevant, evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusing of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needlessly presenting cumulative evidence.”
I.R.E. 403 (2017). A trial should not stray from the central issues of guilt or innocence of the
defendant and should not allow “full-scale investigations into other matters.” State v.
MacDonald, 131 Idaho 367, 371, 956 P.2d 1314, 1318 (Ct. App. 1998).
         The district court did not abuse its discretion in finding that questions regarding IDOC’s
guidelines for discipline and infraction hearings were inadmissible under I.R.E. 403. The
probative value of whether the correctional officers followed the IDOC guidelines in conducting
the infraction hearing is minimal in determining whether Hayes battered the correctional officers.
Additionally, allowing Hayes to question the correctional officers on technical IDOC guidelines
regarding infraction hearings could confuse issues for the jury. Instead of focusing on whether
Hayes battered the correctional officers, the jury could be forced to decipher infraction hearing
guidelines, whether the correctional officers complied with them, and, ultimately, whether the
officers battered Hayes to cover-up any violation. None of this would be probative of the issues
the jury was required to resolve. Further, allowing this line of questioning could mislead the jury
into examining the collateral issue of whether the correctional officers conducted Hayes’
infraction hearing in compliance with IDOC guidelines. Essentially, allowing these questions on
cross-examination could create a trial of the correctional officers’ conduct within Hayes’ battery
trial. Thus, the probative value of the questions on cross-examination is substantially outweighed
by the danger of confusing issues and misleading the jury. Therefore, the district court did not
abuse its discretion in finding that the questions were not admissible under I.R.E. 403. As such,
the district court did not abuse its discretion in denying Hayes’ motion for a new trial.


                                                 19
                                    IV.    CONCLUSION
       We affirm Hayes’ judgment of conviction.


       Chief Justice BURDICK and Justice BEVAN CONCUR.


       STEGNER, J., concurring in the result.
       I agree with the majority’s conclusion to affirm Hayes’ judgment of conviction.
However, I write separately to avoid implicitly condoning the practice employed by the
prosecution in this case. I believe that the prosecution improperly “opened the door” to admit
character evidence against Hayes, despite Hayes never having placed his character at issue.
       Here, Hayes testified in his own defense and was cross-examined by the State.
Specifically, the State asked about Hayes’ conduct towards other correctional officers and
inmates at the Idaho Maximum Security Institution (IMSI), an issue that was not dealt with on
Hayes’ direct examination. When Hayes testified that he was always respectful towards other
inmates and officers, the State sought, outside the presence of the jury, to question him further
about specific prior instances of conduct that contradicted his testimony. Defense counsel
objected, arguing that it was improper character evidence under Rule 404(b), unfairly prejudicial
under Rule 403, and that it should be excluded under Rule 608(b). The district court ruled that
Rule 404(b) did not apply, and that Rule 608(b) applied to permit the State’s inquiry on cross-
examination.
       On appeal, Hayes has not argued that the district court erred in ruling that Rule 404(b)
did not apply. Accordingly, Hayes has waived this argument on appeal. See State v. Gonzales,
165 Idaho 667, 672–73, 450 P.3d 315, 320–21 (2019) (citing Bach v. Bagley, 148 Idaho 784,
790, 229 P.3d 1146, 1152 (2010)); see also I.A.R. 35(a)(6). For this reason, I agree with the
majority’s conclusion to affirm Hayes’ judgment of conviction.
       Nevertheless, I write separately to clarify that the prosecution cannot “open the door” to
its own character evidence. Idaho case law with respect to Rule 404(b) evidence leaves this
question unanswered. However, case law and authority from other jurisdictions strongly suggest




                                                20
that the prosecution may not “open the door” itself to present evidence of prior bad acts, which
would be subject to Rule 404.1
         The general rule is that “one cannot open the door for one’s own evidence; it requires
some action by the opponent.” 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal
Practice and Procedure § 5039.1 (2d ed. 2019). Likewise, a defendant’s character cannot
become an “open” subject because of answers elicited by the prosecutor on cross-examination;
rather, it is the defendant who must put his character in issue. Iowa v. Jones, 471 N.W.2d 833,
835 (1991); see also Robertson v. Florida, 780 So.2d 94, 96 (Fla. Dist. Ct. App. 2000) (citation
omitted) (“The state’s argument that the evidence was for impeachment purposes must fail where
that impeachment could not have occurred without the defendant first affirmatively putting his
character at issue[.]”); Ohio v. Grubb, 675 N.E.2d 1353, 1355 (Ohio Ct. App. 1996) (“The
prosecution cannot circumvent the limited nature of the exception provided in [Rule 404] by
putting the character of an accused in issue via its own questions, and then present evidence to
rebut the answers. Such tactics run afoul of the universal principle that the prosecution may not
offer, in the first instance, evidence of an accused’s character to show a general propensity to
commit the acts underlying the crime charged.”).
         Here, the State put Hayes’ character at issue by eliciting testimony from Hayes on cross-
examination that he was generally respectful of other inmates and correctional officers at IMSI.
The State then sought to introduce evidence of specific instances of Hayes’ past conduct to rebut
Hayes’ contention that he was always respectful. The State cannot open the door to this type of
character evidence and then impeach Hayes through Rule 404 evidence. Hayes did not put his
character at issue; the State did. Accordingly, the evidence should have been inadmissible
pursuant to Rule 404. However, as noted, Hayes abandoned Rule 404 entirely on appeal.
Accordingly, I am constrained from reviewing the issue.
         Justice MOELLER CONCURS.




1
  Additionally, Rule 404(b) requires the prosecution to provide a defendant with notice in advance of trial before the
prosecution may seek to admit evidence of prior bad acts at trial. I.R.E. 404(b)(2)(A)–(B). This Court has held that
the notice requirement in I.R.E. 404(b) is mandatory and failure to give advance notice would bar the admission of
such evidence. State v. Sheldon, 145 Idaho 225, 230, 178 P.3d 28, 33 (2008). Here, the State never provided notice
that it intended to offer evidence of Hayes’ conduct while he was incarcerated. Accordingly, the lack of notice is
another reason to bar the introduction of this evidence. However, as Hayes has waived the argument of Rule 404(b),
we are foreclosed from addressing the issue.

                                                         21
