               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43438

STATE OF IDAHO,                                ) 2016 Opinion No. 80
                                               )
       Plaintiff-Respondent,                   ) Filed: December 8, 2016
                                               )
v.                                             ) Stephen W. Kenyon, Clerk
                                               )
ANTHONY WAYNE CONNER,                          )
                                               )
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Richard D. Greenwood, District Judge.

       Order denying motion to admit certain statements, affirmed; judgment of
       conviction for second degree murder and destruction, alteration, or concealment
       of evidence, affirmed.

       Nevin, Benjamin, McKay & Bartlett LLP; Dennis Benjamin, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Anthony Wayne Conner appeals from his judgment of conviction for second degree
murder, Idaho Code §§ 18-4001, 18-4003(g), and destruction, alteration, or concealment of
evidence, I.C. § 18-2603. Conner asserts the district court erred by excluding statements the
decedent made in the week prior to his death. We affirm.
                                               I.
              FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       One evening, at approximately 8:50 p.m., Conner called 911 and reported having found
his eighty-seven-year-old father, Otis Conner (“Otis”), dead in the garage of the home they
shared. Conner indicated to the police that he had come home to find that Otis had fallen off a
ten-foot ladder while trying to retrieve items from an attic storage area and hit his head on the
concrete floor or steps. After an initial investigation, including discussions with Otis’s sons,

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Doug Conner and Randy Conner, who expressed concern that Otis’s death may not have been
caused by a fall, the police obtained and executed a search warrant for Conner’s residence.
        Detectives found stains on the carpet between the dining room and the living room.
When detectives moved an oddly-positioned chair and rug, the detectives observed two more
stains near a heat register. Subsequent DNA tests showed that Otis’s blood was found on a rug
in the laundry room, on the east living room wall, in the carpeting under the heat register, in a
carpet cleaning machine, on the underside of a chair in the living room, on the living room
ceiling, on the garage floor, on one of the legs of the ladder, and on the claw of a hammer.
Forensic investigators also tested for the presence of blood which was detected on the windowsill
and the baseboard area near the carpet stains as well as on the kitchen floor, around the kitchen
sink, and on the laundry room floor.       The tests indicated “linear impressions” which the
investigators reported as “drag marks.” Based on these findings, the State theorized that Conner
hit Otis on the head with a hammer in the living room, dragged his body to the garage, and
staged an accident using the ladder. Based on discussions with Doug Conner and Randy Conner
and financial records obtained in the course of the investigation, the State posited that Conner’s
motive was financial gain. Conner was charged with first degree murder, grand theft, forgery,
and destruction, alteration, or concealment of evidence.
        At trial, Conner testified that in the week prior to Otis’s death, Conner returned home to
find Otis cleaning the living room rug with a large gauze bandage on his head. Otis told Conner
he had fallen. Conner stated he did not see any blood stains because Otis had moved an area rug
over them. Conner testified that the next day he again returned home to find Otis using a carpet
cleaning machine over the rug. There were two large blood spots on the rug and the heat register
was also bloody. Conner stated that the gauze bandage from the day before had been replaced
with a larger bandage. Conner further testified that Otis attempted to lift the heat register but
could not get his fingers underneath its edge, so Conner retrieved a hammer from the garage,
pried up the heat register with the claws of the hammer, and rinsed off the register in the kitchen
sink.
        Prior to trial, Conner moved to admit statements allegedly made by Otis to Kelly Riggs, a
family friend, about Otis falling, injuring his head, and trying to remove the blood stains.
Conner argued that Otis’s prior statements were admissible because they fell under the hearsay
exceptions contained within the Idaho Rules of Evidence. The district court reserved ruling on

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Conner’s motion until trial. At trial, Conner argued that under I.R.E. 803(3) and (24), the
statements allegedly made by Otis to Riggs should be admitted. In an offer of proof regarding
his proposed testimony, Riggs told the district court that when he visited Otis a few days before
he passed away, Otis had a bandage on his forehead. Riggs stated that Otis told him he had
fallen while getting up out of his chair, hit his head, laid on the floor for a while, bled on the
carpet, tried unsuccessfully to clean it up, and moved a chair to cover the blood spot. The district
court ruled that Otis’s hearsay statements were not admissible under Rule 803(3) or (24).1 Riggs
was allowed to testify only as to his visit with Otis and his observation that Otis had a bandage
on his forehead. Riggs’ wife also testified that she had seen a bandage on Otis’s head during the
same visit, albeit a smaller-type bandage than Riggs described.
       The jury found Conner guilty of second degree murder and destruction, alteration, or
concealment of evidence, but was unable to reach a verdict on the other charges. At sentencing,
the district court, based on a motion by the State, dismissed the grand theft and forgery charges.
The district court entered judgment against Conner and sentenced him to a unified term of thirty
years with eighteen years determinate on the second degree murder conviction, and imposed a
concurrent sentence of five years determinate on the destruction, alteration, or concealment of
evidence conviction. Conner timely appeals.
                                                 II.
                                            ANALYSIS
       Conner challenges the district court’s ruling which excluded the statements Otis made to
Riggs in the week prior to his death.        Alternatively, Conner asserts that the district court
committed fundamental error by excluding the statements.
A.     Exclusion of Hearsay Statements
       Conner argues that the district court erred in denying Conner’s motion to admit certain
statements made by Otis. Conner sought to admit Riggs’ testimony relating to statements made
by Otis in the week prior to his death, specifically:
       We talked about several things. When my family come in, I noticed a bandage on
       his forehead high on the right side by the hairline, a fairly large bandage. I asked
       him what happened to his head. He said he got up out of the chair, lost his
       balance, fell down, hit his head, laid there for a while, didn’t know how long. He

1
       On appeal, Conner does not argue that the district court erred in excluding the statements
under Idaho Rule of Evidence 803(3).
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       didn’t know how long he was on the floor. Got up, had bled on the carpet. Fixed
       his head and then tried to clean the blood out of the carpet. Couldn’t. And so he
       slid the chair over it, over the blood spot.
       On appeal, Conner argues that Riggs’ testimony was admissible under what is commonly
known at the “catchall” hearsay exception, I.R.E. 803(24), which states:
              A statement not specifically covered by any of the foregoing exceptions
       but having the equivalent circumstantial guarantees of trustworthiness, if the court
       determines that (A) the statement is offered as evidence of a material fact; (B) the
       statement is more probative on the point for which it is offered than any other
       evidence which the proponent can procure through reasonable efforts; and (C) the
       general purpose of these rules and the interest of justice will be best served by
       admission of the statement into evidence.
       The decision whether to admit evidence at trial is generally within the province of the
trial court. A trial court’s determination that evidence is supported by a proper foundation is
reviewed for an abuse of discretion. State v. Gilpin, 132 Idaho 643, 646, 977 P.2d 905, 908 (Ct.
App. 1999). Therefore, a trial court’s determination as to the admission of evidence at trial will
only be reversed where there has been an abuse of that discretion. State v. Zimmerman, 121
Idaho 971, 973-74, 829 P.2d 861, 863-64 (1992). When a trial court’s discretionary decision is
reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the
lower court 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).
       In ruling that the testimony was inadmissible under Rule 803(24), the district court stated:
               I do not find that it is admissible under 803(24) as the--what’s come to be
       called the catchall exception. That originated from an old case having to do with
       the use of old newspapers, but it is sparingly, if at all, applied, and in part because
       there needs to be some guarantee--other circumstantial--well, as the State puts it,
       evidence of trustworthy.
               And we don’t have anything here that shows us anymore trustworthiness
       than any statement made by a witness. The problem is, as Mr. Bailey points out,
       the actual witness testifying isn’t with us. And so there is nothing particularly
       about the circumstances of that conversation that would make its recitation
       through this witness particularly trustworthy.
               So I will not allow that conversation. You’re certainly entitled to appeal
       and disagree.
       Our first inquiry is whether the statements were hearsay.          Hearsay is defined as a
statement, other than one made by the declarant while testifying at the trial or hearing, offered in

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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). 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. The district court examined the statements allegedly made by Otis and determined
that they were being offered to prove the truth of the matters asserted therein and were, therefore,
hearsay. The next inquiry is whether they were admissible under an exception to the hearsay
rule.
        Conner argues that the district court abused its discretion because the exclusion of the
evidence was based upon the court’s conclusion that the evidence was not “particularly
trustworthy,” which Conner asserts is a higher standard than “the equivalent circumstantial
guarantees of trustworthiness” language found in Rule 803. Rather, Conner avers, evidence
admitted under the catchall exception need only “demonstrate a trustworthiness within the spirit
of the specifically stated exceptions.” The district court did not abuse its discretion. It is
apparent that the trial court understood the issue to be a discretionary one and correctly
recognized and applied the guiding principles of Rule 803(24). Although the district court did
not use the specific language from the rule, it is apparent from its ruling that the district court
was looking for “the equivalent circumstantial guarantees of trustworthiness.” The district court
did not misunderstand the standard of the rule and in using the word “particularly” did not
impose a higher threshold than that generally imposed upon those exceptions specifically stated
in Rule 803. To that end, we hold that the first criteria of Rule 803(24), that the statement carries
circumstantial guarantees of trustworthiness equivalent to those of the other Rule 803 hearsay
exceptions, is not satisfied here.      The offer of proof did not describe anything in the
circumstances under which Otis made the statements that would give an aura of truthfulness or
reliability to the statements. It is simply a conversation that bears no circumstantial guarantees
of trustworthiness. That is not to say that the witness was not truthful, but only that the
statements are not inherently or circumstantially trustworthy. Accordingly, we find no error in
the exclusion of Riggs’ hearsay testimony.
B.      Fundamental Error
        Alternatively, Conner argues that the district court committed fundamental error by
violating Conner’s constitutional right to present evidence when it excluded Riggs’ testimony
relating to the statements Otis made to him. Conner acknowledges he did not raise this claim

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before the district court. Generally, issues not raised below may not be considered for the first
time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). However, Idaho
appellate courts may consider a claim of error to which no objection was made in the trial court
if the issue presented rises to the level of fundamental error. State v. Field, 144 Idaho 559, 571,
165 P.3d 273, 285 (2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971); State
v. Hansen, 154 Idaho 882, 886-87, 303 P.3d 241, 245-46 (Ct. App. 2013). A fundamental error
is one that: (1) violates one or more of the defendant’s unwaived constitutional rights; (2) is
clear or obvious without the need for reference to any additional information not contained in the
appellate record; and (3) affects the outcome of the trial proceedings. State v. Perry, 150 Idaho
209, 226, 245 P.3d 961, 978 (2010).
         The right to present evidence is grounded in the Sixth Amendment’s Compulsory Process
Clause. Taylor v. Illinois, 484 U.S. 400, 409-10 (1988); State v. Harris, 132 Idaho 843, 846, 979
P.2d 1201, 1204 (1999). Conner contends that excluding Otis’s statements violated this right.
We disagree. The substance of the claimed error is that the jury should have heard testimony
that supported the defense’s theory as to why there was a large amount of Otis’s blood found
inside the house, even though Otis’s body was found in the garage, despite the fact that the
testimony was hearsay and deemed inadmissible under the Idaho Rules of Evidence. “Where the
asserted error relates not to infringement upon a constitutional right, but to violation of a rule or
statute, the fundamental error doctrine is not implicated.” State v. Garcia, 156 Idaho 352, 356,
326 P.3d 354, 358 (Ct. App. 2014); see State v. Jackson, 151 Idaho 376, 256 P.3d 784 (Ct. App.
2011).
         To hold that the presentation of evidence and associated argument in violation of
         an evidentiary rule satisfies the constitutional violation element of Perry because
         all evidentiary error implicates due process would, in our view, virtually
         eviscerate the first prong of the Perry standard and contravene the limits that
         Perry places on fundamental error review.
Garcia, 156 Idaho at 356-57, 326 P.3d at 358-59 (quoting Jackson, 151 Idaho at 379-80, 256
P.3d at 787-88). See also State v. Norton, 151 Idaho 176, 184-87, 254 P.3d 77, 85-88 (Ct. App.
2011).
         In support of his argument that the Sixth Amendment right to present evidence can
supersede state rules of evidence, Conner primarily relies upon State v. Thomas, 157 Idaho 916,
342 P.3d 628 (2015), State v. Perry, 139 Idaho 520, 81 P.3d 1230 (2003), and State v. Peite, 122
Idaho 809, 839 P.2d 1223 (Ct. App. 1992). However, in each of these cases, the Idaho appellate
                                                 6
courts analyzed whether evidence was admissible under the Idaho Rules of Evidence in addition
to whether the exclusion of evidence was a violation of constitutional rights. Further, Conner
avers that the language in State v. Meister, 148 Idaho 236, 220 P.3d 1055 (2009), acknowledges
there will be rare cases where the evidence is not admissible under the rules, but nevertheless
must be admitted in the interests of due process. In Meister, the Idaho Supreme Court stated that
“this Court adopts an approach which holds that the Rules of Evidence generally govern the
admission of all evidence in the courts of this State.” Id. at 240, 220 P.3d at 1059. Conner
points to the phrase “generally govern” to demonstrate his contention. However, Meister does
not suggest this conclusion in its context or outcome and does not stand as authority for such a
proposition.2 While it may be true that there are exceptional cases where evidence otherwise
inadmissible under the Rules of Evidence would be admitted in the interests of due process, this
is not such a case. We have affirmed that Otis’s statements made to Riggs were properly
excluded from evidence based on the lack of guarantees of trustworthiness. There is no right to
admit untrustworthy evidence simply by claiming a constitutional violation. Thus, the exclusion
of evidence in this case is not reviewable as fundamental error.
                                               III.
                                        CONCLUSION
       Conner has failed to demonstrate that the district court abused its discretion in denying
his motion to admit statements made by Otis in the week prior to his death. Further, Conner has
not shown it was fundamental error for the district court to exclude these statements. We affirm

2
        In Meister, the defendant was charged with first degree murder and conspiracy to commit
murder. State v. Meister, 148 Idaho 236, 238, 220 P.3d 1055, 1057 (2009). At trial, the
defendant sought to introduce evidence that another individual was responsible for the murder.
Id. The district court refused to allow the defendant to introduce any evidence which showed the
other individual was responsible for the murders, including a confession by that individual. Id. at
238-39, 220 P.3d at 1057-58. On appeal, Meister claimed that the district court’s refusal to allow
him to admit evidence of the confession deprived him of his constitutional right to provide a full
and complete defense. Id. at 239-40, 220 P.3d at 1058-59. The Idaho Supreme Court held that
the district court should have analyzed whether the confession was admissible under the Idaho
Rules of Evidence. Id. at 240-41, 220 P.3d at 1059-60. The Court explained that the Idaho
Rules of Evidence “embody the balancing test which safeguards a defendant’s constitutional
right to present a defense along with protection of the state’s interest in the integrity of the
criminal trial process.” Id. at 240, 220 P.3d at 1060. “Meister should be afforded the
opportunity to present his complete and full defense, which includes the presentation of all
relevant evidence in the context of trial pursuant to any limitations of the Idaho Rules of
Evidence.” Id. at 241, 220 P.3d at 1060 (emphasis added).
                                                7
the district court’s denial of Conner’s motion to admit certain statements. Accordingly, Conner’s
judgment and conviction for second degree murder and destruction, alteration, or concealment of
evidence is affirmed.
       Chief Judge MELANSON and Judge HUSKEY CONCUR.




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