                 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43486

STATE OF IDAHO,                                  )    2017 Unpublished Opinion No. 325
                                                 )
          Plaintiff-Respondent,                  )    Filed: January 19, 2017
                                                 )
v.                                               )    Stephen W. Kenyon, Clerk
                                                 )
CHRISTOPHER CRUZ,                                )    THIS IS AN UNPUBLISHED
                                                 )    OPINION AND SHALL NOT
          Defendant-Appellant.                   )    BE CITED AS AUTHORITY
                                                 )

          Appeal from the District Court of the Fifth Judicial District, State of Idaho,
          Minidoka County. Hon. Michael R. Crabtree, District Judge.

          Judgment of conviction for second degree murder, affirmed.

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

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

MELANSON, Judge
          Christopher Cruz appeals from his judgment of conviction for second degree murder.
Specifically, Cruz argues that the district court erred in granting the State’s motion in limine and
allowing statements Cruz made to be admitted into evidence. For the reasons set forth below, we
affirm.
                                                 I.
                                  FACTS AND PROCEDURE
          A witness called 911 and reported that he saw Cruz shoot and kill a man and that the
victim was lying next to a black car at Cruz’s residence. Upon arrival at Cruz’s home, the
responding officers observed a black car with bullet holes and found the deceased victim under a
blanket inside the car. In an interview with the officers, the witness stated that he and the victim



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went to Cruz’s residence where Cruz shot the victim. Cruz then pointed the pistol at the witness,
and he heard two clicks but was not shot. After Cruz told the witness not to move and turned
around to put the pistol down in the garage, the witness ran away. Cruz caught up to the witness
and tackled him but he escaped. The witness ran to a nearby house to use a telephone, knocked
on the door, and broke a window when there was no answer. When the witness was unable to
locate a telephone in the house, the witness ran to a neighbor’s house where he was able to call
911.
       The responding officers verified that the witness had injuries consistent with being
tackled by Cruz. The officers also went to the first home the witness entered and found the
broken window, consistent with the witness’s story. Officers located the pistol in Cruz’s garage
and recovered two spent shell casings, consistent with the make and model of the pistol. A bullet
from the same kind of pistol was recovered from the deceased victim, and the coroner reported
that three gunshot wounds caused the victim’s death.
       The State charged Cruz with first degree murder and attempted first degree murder.
During an interview with law enforcement, Cruz made statements indicating he was under the
influence of acid and methamphetamine when he committed the acts underlying the charges.
The State later filed a motion in limine requesting admission of several statements Cruz made to
his mother during recorded jail calls. The first statement included Cruz telling his mother that
she needed to wait to see the evidence and see the kind of monster Cruz is inside. The second
statement included Cruz telling his mother that the State would only find THC in Cruz’s system
and that he smoked marijuana every now and then. The district court held a hearing on the
motion in limine and determined both statements were admissible at trial. Pursuant to a plea
agreement, Cruz pled guilty to an amended charge of second degree murder and the remaining
count was dismissed. Cruz appeals.
                                               II.
                                  STANDARD OF REVIEW
       A trial court has broad discretion when ruling on a motion in limine, and we review the
trial court’s decision to grant or deny a motion in limine for abuse of discretion. State v.
Richardson, 156 Idaho 524, 527, 328 P.3d 504, 507 (2014). When a trial court’s discretionary
decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine


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whether the lower court correctly perceived the issue as one of discretion, acted within the
boundaries of such discretion and consistently with any legal standards applicable to the specific
choices before it, and reached its decision by an exercise of reason. State v. Hedger, 115 Idaho
598, 600, 768 P.2d 1331, 1333 (1989).
                                               III.
                                          ANALYSIS
A.     Idaho Rule of Evidence 403
       On appeal, Cruz argues that the district court abused its discretion when it ruled that
Cruz’s statement that he was a monster could be admitted into evidence at trial. Specifically,
Cruz contends the district court erred by not excluding the statement under I.R.E. 403.1 Rule 403
allows for the exclusion of relevant evidence if the probative value of that evidence is
substantially outweighed by the danger of unfair prejudice to the defendant. The rule suggests a
strong preference for admissibility of relevant evidence. State v. Martin, 118 Idaho 334, 340 n.3,
796 P.2d 1007, 1013 n.3 (1990). A lower court’s determination under I.R.E. 403 will not be
disturbed on appeal unless it is shown to be an abuse of discretion. State v. Enno, 119 Idaho 392,
406, 807 P.2d 610, 624 (1991); State v. Clark, 115 Idaho 1056, 1059, 772 P.2d 263, 266 (Ct.
App. 1989).
       In this case, the statement consisted of the following portion of a recorded conversation
between Cruz and his mother:
       [CRUZ]:      Well, it just hit me today. Me and this guy were talking, and he
            just told me straight out truth, you know? He’s not going to beat around
            the bush. He is going to tell me what the prosecutors think, he’s going to
            tell me what the judge thinks of me and stuff like that. I told him a little
            bit of what happened, you know? And that’s why. I know what happened
            too.
       [CRUZ’S MOTHER]: Well, I don’t believe you were there by yourself. The
            whole world believes what I believe, and that’s because they know you.
            You’re sticking up for somebody . . . .
       [CRUZ]: Well, wait until you see the evidence. Wait till you see what kind of
            monster I am deep down inside.

1
        Cruz does not challenge the district court’s finding that Cruz’s statement was relevant.
Accordingly, our review is limited to whether the district court abused its discretion when it
determined that the danger of unfair prejudice did not substantially outweigh the probative value
of the statement.

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       [CRUZ’S MOTHER]: You are not a monster. Did you hear me?

In making its ruling, the district court concluded that Cruz’s statement, “[W]ait until you see the
evidence,” was the real essence of the State’s proffer and was Cruz’s characterization of his
actions. The district court observed that Cruz’s statement that he was a monster was less
important, although the statement showed consciousness of guilt. Balancing the probative value
of the statement as a whole, the district court determined the statement was prejudicial (but not
unfairly prejudicial) and allowed it to be admitted into evidence.
       When read in a vacuum, Cruz’s statement that he was a monster would have little
probative value outside of establishing that Cruz viewed himself as a bad person. Out of context,
the monster statement would also be unfairly prejudicial because it would suggest the jury make
a decision on the basis of Cruz’s characterization of himself, rather than based on the evidence.
Evidence is unfairly prejudicial if it tends to suggest a decision on an improper basis. State v.
Floyd, 125 Idaho 651, 654, 873 P.2d 905, 908 (Ct. App. 1994). However, when viewed in
context, it is evident that the statement was a response to Cruz’s mother’s suggestion that Cruz
was not guilty.
       Cruz’s statement referred to his actions and what he believed the evidence would show he
did. Thus, the statement tended to prove Cruz’s consciousness of guilt, which is a proper
consideration for the jury. See State v. Baird, 13 Idaho 29, 31, 88 P. 233, 234 (1907). Indeed,
consciousness of guilt is second only to a confession in terms of probative value. United States
v. Meling, 47 F.3d 1546, 1557 (9th Cir. 1995); see also Cook v. State, 157 Idaho 775, 780, 339
P.3d 1179, 1184 (Ct. App. 2014) (noting that evidence of the defendant’s consciousness of guilt
was damaging to the defendant’s case). Here, the statement is the near equivalent of Cruz
confessing that he committed the crime and is therefore highly relevant and highly prejudicial.
However, Rule 403 does not protect a defendant from any prejudicial evidence, only unfairly
prejudicial evidence. State v. Leavitt, 116 Idaho 285, 290, 775 P.2d 599, 604 (1989). The record
indicates that the district court acted within its discretion when it applied Rule 403 and
determined that the danger of unfair prejudice did not substantially outweigh the probative value
of the monster statement when read in context. Accordingly, the district court did not err by not
excluding the monster statement under Rule 403.



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B.     Idaho Rule of Evidence 404(b)
       Cruz also argues that the district court abused its discretion when it ruled that Cruz’s
statement of prior marijuana use could be admitted into evidence at trial. Specifically, Cruz
contends that the district court erred by not articulating a nonpropensity purpose for the
admission of the statement. The State argues that Cruz’s statement of prior marijuana use was
not evidence of propensity and therefore was not subject to I.R.E. 404(b).2 Evidence is subject to
Rule 404(b) if it bears upon a defendant’s character and is not intrinsic to the crimes charged.
State v. Whitaker, 152 Idaho 945, 949, 277 P.3d 392, 396 (Ct. App. 2012). Evidence is intrinsic
when it and evidence of the crime charged are inextricably intertwined, both acts are part of a
single criminal episode, or it was a necessary preliminary to the crime charged. Id. Evidence is
inextricably intertwined when it is so interconnected with the charged offense that a complete
account of the charged offense could not be given to the jury without disclosure of the uncharged
misconduct. Id.
       In this case, the statement consisted of the following statement Cruz made to his mother:
       [T]here’s a lot of inconsistencies in [the witness’s] story, and there’s just--there’s
       a lot of inconsistencies with me too. Well, I pretty much said pretty much the
       truth, but I justified all my actions. Like, I said I was under the influence at first.
       But they have all my blood anyway, so they could do the test that I wasn’t on
       methamphetamines, or I didn’t have it in my blood system or other different types
       of drugs besides THC. But I admitted to that, I smoke pot every now and then
       sometimes. It’s no big deal.
Cruz’s statement can be broken down into two key components. First, Cruz said that the State
had obtained a blood sample and would only find THC in Cruz’s system, contrary to what he
initially told the State. Second, Cruz said that he sometimes used marijuana. With respect to the
first component regarding Cruz’s blood, the statement did not bear on his character and instead
corroborated information the State possessed. Thus, the first component of Cruz’s statement was
not character evidence subject to Rule 404(b).

2
        The State also asserts that Cruz failed to preserve the issue for appeal because he
acquiesced to the district court’s ruling regarding Cruz’s statement of prior marijuana use. At the
motion hearing however, Cruz argued that the district court should analyze the statement under
Rule 404(b). Moreover, Cruz’s reserved his right to appeal the district court’s grant of the
State’s motion in limine. Accordingly, Cruz preserved the issue for appeal.

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       With respect to the second component regarding Cruz’s marijuana use, it is evident that
the State intended to use it to impeach Cruz because it conflicted with his initial statement to
officers. Although marijuana use may generally bear on Cruz’s character, it was not being
introduced to establish that Cruz acted in accordance with that character trait. Therefore, it is not
character evidence subject to Rule 404(b).
       Even if the second component were character evidence, its admission would be harmless
because the State possessed information that Cruz had THC in his system, as he admitted in the
first component of his statement.      Error is not reversible unless it is prejudicial.    State v.
Stoddard, 105 Idaho 169, 171, 667 P.2d 272, 274 (Ct. App. 1983). With limited exceptions,
even constitutional error is not necessarily prejudicial error. Id. Thus, we examine whether the
alleged error complained of in the present case was harmless. State v. Lopez, 141 Idaho 575,
578, 114 P.3d 133, 136 (Ct. App. 2005). Where a defendant meets his or her initial burden of
showing that a constitutional violation has occurred, the State has the burden of demonstrating to
the appellate court beyond a reasonable doubt that the violation did not contribute to the jury’s
verdict. State v. Perry, 150 Idaho 209, 227-28, 245 P.3d 961, 979-80 (2010). Because Cruz pled
guilty, we do not have the benefit of knowing what evidence would have been presented at trial
and what effect that evidence may have had on a jury. However, this Court has analyzed
whether an error is harmless in the context of a plea agreement. See State v. Rutherford, 107
Idaho 910, 916, 693 P.2d 1112, 1118 (Ct. App. 1985) (finding the State’s breach of a plea
agreement was not harmless because the Court could not say the State’s promise had no effect on
the defendant’s decision to plead guilty). Moreover, the Idaho Supreme Court has held that,
where the admissible evidence provides beyond a reasonable doubt overwhelming and
conclusive proof of a defendant’s guilt, the admission of tainted evidence will be held to be
harmless error. State v. LePage, 102 Idaho 387, 398, 630 P.2d 674, 682 (1981).
       The record in this case abounds with admissible evidence suggesting Cruz was guilty of
the crimes with which he was charged. For example, the deceased victim’s body was located in
a car parked in Cruz’s driveway. The pistol described by the witness was located in Cruz’s
garage, near spent shell casings that matched the pistol. The victim’s death was caused by
gunshot wounds from bullets matching the pistol and shell casings recovered at Cruz’s property.
The witness had injuries consistent with being tackled by Cruz, as the witness described. Cruz


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was arrested in Texas, which suggests he fled.3 Additionally, the alleged Rule 403 statement is
highly probative of Cruz’s consciousness of guilt. Beyond a reasonable doubt, in light of the
State possessing Cruz’s blood sample and all other evidence against Cruz, the potential
admission of his statement regarding prior marijuana use did not affect his decision to plead
guilty. Moreover, Cruz’s alleged Rule 404(b) statement--given the circumstances surrounding
the charges and the other evidence against Cruz--would not subject him to unfair prejudice even
if the case went to trial. Additionally, since the first part of the statement was admissible and
contained an acknowledgement by Cruz that he had THC in his body, the second statement that
he smoked marijuana (leading to THC in his body) added nothing and, therefore, was not
independently prejudicial. Thus, even if the second component of Cruz’s statement of prior
marijuana use was propensity evidence, it was harmless for the district court to not articulate a
nonpropensity purpose for the evidence.
                                              IV.
                                          CONCLUSION
       The district court did not abuse its discretion by not excluding the alleged Rule 403
statement.   Likewise, the district court did not abuse its discretion by not articulating a
nonpropensity purpose for admission of the alleged Rule 404(b) statement. Even if the district
court erred by not articulating a nonpropensity purpose for admission of the alleged Rule 404(b)
statement, that error was harmless. Thus, the district court correctly granted the State’s motion
in limine. Accordingly, Cruz’s judgment of conviction for second degree murder is affirmed.
       Chief Judge GRATTON and Judge HUSKEY, CONCUR.




3
       Evidence of escape or flight is probative of consciousness of guilt. See State v. Passons,
158 Idaho 286, 292, 346 P.3d 303, 309 (Ct. App. 2015).

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