               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38764

STATE OF IDAHO,                                 )     2012 Unpublished Opinion No. 733
                                                )
       Plaintiff-Respondent,                    )     Filed: November 27, 2012
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
EUGENE VICTOROVICH AGAFONOV,                    )     THIS IS AN UNPUBLISHED
aka EUGENE YEUGENIY,                            )     OPINION AND SHALL NOT
                                                )     BE CITED AS AUTHORITY
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Michael E. Wetherell, District Judge.

       Judgment of conviction for possession of heroin and possession of
       paraphernalia, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Elizabeth A. Allred, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessisca M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Eugene Victorovich Agafonov, aka Eugene Yeugeniy appeals from his judgment of
conviction for possession of heroin and possession of paraphernalia. For the reasons set forth
below, we affirm.
                                               I.
                                 FACTS AND PROCEDURE
       On April 5, 2010, an officer responded to an emergency call regarding a possible
overdose at a residence. Upon arrival, the officer was led inside by a resident to an upstairs
bathroom, where Agafonov lay on the floor with shallow breathing, a rapid pulse, and a
discolored face--deep red to purplish in color.     The officer questioned an acquaintance of
Agafonov regarding whether Agafonov had ingested drugs. The acquaintance stated he did not
know. Paramedics and a second officer arrived at the scene. The paramedics moved Agafonov


                                               1
from the bathroom, at which time the first officer began to search for clues regarding the cause of
Agafonov’s condition. Inside the bathroom, the officer discovered two syringes located in a
cupboard drawer (one loaded and one empty), two charred metal spoons, a syringe cap and a
used Q-Tip with what appeared to be blood in a garbage can, a belt, a tin with more Q-tips, a
razor blade, and white residue. The liquid in the loaded syringe later tested positive for heroin.
       During this period of time, the second officer and the paramedics each questioned the
acquaintance regarding what could have caused Agafonov to become unresponsive.                 After
speaking with the acquaintance, the second officer reported to paramedics and the first officer
that Agafonov ingested opiates. Paramedics then administered Narcan, an opiate blocker used to
treat overdoses. After paramedics administered the Narcan, Agafonov immediately became
responsive. Paramedics then transported Agafonov to the hospital, where medical personnel
attempted to obtain a blood sample. Agafonov refused, telling his sister, “I don’t want them to
draw my blood. Because if they want to prove anything, they won’t be able to prove anything if
they don’t have my blood.” Agafonov then departed the hospital against medical advice.
       The state subsequently charged Agafonov with possession of heroin and possession of
drug paraphernalia. The case went to trial, where the state called the acquaintance as a witness.
Although the state had originally sought to use statements made by the acquaintance to the
second officer regarding Agafonov’s past practice of injecting opiates, it had decided not to
pursue this due to its pretrial investigation, which indicated the acquaintance would no longer
stand by those statements. On direct examination, the acquaintance testified that he discovered
Agafonov unconscious on the bathroom floor and tried to revive him. He stated that, when the
officers and paramedics arrived, he told them all the same thing when questioned about what
happened, but they did not believe him. During cross-examination, Agafonov questioned the
acquaintance regarding statements made to the second officer that were contained in his police
report. The acquaintance denied making a number of statements contained therein.
       Prior to redirect, the state requested a hearing outside the presence of the jury. The state
argued that, because Agafonov used the police report in cross-examination, the state should be
allowed to inquire into the rest of the report, including the portion regarding the acquaintance’s
statement that Agafonov had injected opiates in the past. Agafonov argued that the state was
trying to impeach its own witness, that there was improper foundation for I.R.E. 404(b) evidence
because the acquaintance was an unreliable source of the information, and I.R.E. 403 precluded


                                                 2
admission of the report. The district court ruled that the remaining portions of the report were
admissible under I.R.E. 404(b); for impeachment and rehabilitation purposes; under
I.R.E. 106--the doctrine of completeness; and as out-of-order rebuttal evidence.        The state
thereafter questioned the acquaintance regarding his prior statement to the second officer
regarding Agafonov’s past intravenous use of opiates, after which the district court gave a
limiting instruction. The jury found Agafonov guilty of both counts. Agafonov appeals.
                                               II.
                                  STANDARD OF REVIEW
       Agafonov contends the district court erred in allowing the statement about Agafonov’s
prior intravenous opiate use into evidence. Challenges to a trial court’s decision to admit or
exclude evidence are reviewed under the abuse of discretion standard. State v. Zimmerman, 121
Idaho 971, 974, 829 P.2d 861, 864 (1992). When a trial court’s discretionary decision is
reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether
the lower court correctly perceived the issue as one of discretion; (2) whether the lower court
acted within the boundaries of such discretion and consistently with any legal standards
applicable to the specific choices before it; and (3) whether the lower court reached its decision
by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
However, evidentiary rulings regarding relevancy are reviewed de novo. State v. Gomez, 137
Idaho 671, 674, 52 P.3d 315, 318 (2002).
                                               III.
                                           ANALYSIS
A.     Idaho Rule of Evidence 404(b)
       Agafonov argues that the district court erred by admitting the statement by the
acquaintance regarding prior intravenous drug use as I.R.E. 404(b) evidence. Idaho Rule of
Evidence 404(b) provides:
               Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show that the person acted in conformity
       therewith. It may, however, be admissible for other purposes, such as proof of
       motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident, provided that the prosecution in a criminal case shall file and
       serve notice reasonably in advance of trial, or during trial if the court excuses
       pretrial notice on good cause shown, of the general nature of any such evidence it
       intends to introduce at trial.



                                                3
This rule prohibits introduction of evidence of acts other than the crime for which a defendant is
charged if its probative value is entirely dependent upon its tendency to demonstrate the
defendant’s propensity to engage in such behavior. State v. Grist, 147 Idaho 49, 54, 205 P.3d
1185, 1190 (2009). See also State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct. App.
2002).
         In this case, the district court ruled that the evidence was admissible for the purpose of
impeachment under Rule 404(b).        However, in order for such evidence to be relevant for
impeachment, it would be necessary for Agafonov first to deny ever injecting opiates in the past,
which he did not do. Moreover, the state made clear at trial that it was not offering this evidence
for Rule 404(b) purposes and does not argue in support of it on appeal. Therefore, we decline to
consider this as one of the bases for admission of the statement.
B.       Impeachment Evidence
         Agafonov argues that the district court erred by admitting the statements by the
acquaintance regarding prior intravenous drug use by Agafonov as impeachment evidence. A
witness’s credibility can be impeached by any party, including the party which called the
witness. I.R.E. 607. Idaho Rule of Evidence 613 allows the use of prior inconsistent statements
to impeach a witness. Evidence introduced under this rule must be relevant for the proper
purpose of impeachment. State v. Wood, 126 Idaho 241, 249, 880 P.2d 771, 779 (1994).
Agafonov argues that the questioning regarding prior opiate use was not relevant to the ultimate
issue at trial and inquiry into that topic did not serve the goals of impeachment. Agafonov
asserts the state was improperly attempting to bootstrap into evidence otherwise inadmissible
testimony.
         Idaho Rule of Evidence 401 defines relevant evidence as any evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence. Rule 402 states the
general rule that all relevant evidence is admissible. To determine whether the state examined
the acquaintance for the primary purpose of impeaching him before the jury with otherwise
inadmissible substantive evidence, we review the evidence presented at trial rather than any
subsequent explanation of the state’s reason or motive for calling the acquaintance to testify. See
State v. Hoover, 138 Idaho 414, 420, 64 P.3d 340, 346 (Ct. App. 2003).




                                                 4
         On cross-examination, Agafonov asked the acquaintance a number of questions with
respect to the police report. Specifically, Agafonov asked the following:
         Q.     Did you tell [the officer] that [Agafonov] asked you to come over so you
                could smoke a cigarette and [Agafonov] could show you a website?
                ....
         Q.     Did you tell [the officer] that you hadn’t seen [Agafonov] lately because
                you took a trip to Portland and you were short on cash?
                ....
         Q.     Did you remember telling [the officer] that that night [Agafonov] had
                given you $100 because you were short on cash?
                ....
         Q.     Do you remember telling [the officer] that [Agafonov] went into the
                bathroom and you heard a loud noise?

In response, the acquaintance denied making these statements and testified to a different
sequence of events that night. Agafonov later asked: “And so all this information that [the
officer] put in his report, those are not things that you said.” The acquaintance responded, “No.”
The state then questioned the acquaintance on the same topics that Agafonov had inquired into.
This portion of the record indicates that the state offered the officer’s report for impeachment
purposes. The district court specifically found this to be a permissible basis for admission of the
statements in the police report. We agree that such questions by the state were relevant because
they tended to make it more or less probable that the acquaintance was testifying truthfully.
         However, the state also inquired into the acquaintance’s statements regarding Agafonov’s
prior intravenous use of opiates. These questions had no permissible relevant purpose and were
not proper for impeachment of the witness because the witness had not testified to anything
contrary on the subject. Indeed, the topic of Agafonov’s prior drug use had not been addressed
in evidence in any manner prior to the questioning by the state. Therefore, the questions
regarding Agafonov’s previous intravenous drug use were not relevant for impeachment
purposes under I.R.E. 607, and the district court abused its discretion in admitting them on that
basis.
C.       Rehabilitation Evidence
         Agafonov argues the district court erred by admitting the statements by the acquaintance
regarding prior intravenous drug use by Agafonov as evidence rehabilitating the credibility of the
acquaintance. Prior consistent statements may be offered to show that the witness did not
recently fabricate testimony. State v. Howard, 135 Idaho 727, 732, 24 P.3d 44, 49 (2001).


                                                5
Under I.R.E. 801(d)(1)(B), a prior consistent statement is not considered hearsay because the
statement is not being offered to prove the truth of the matter asserted but, rather, to show the
credibility of the witness. Howard, 135 Idaho at 732, 24 P.3d at 49. Agafonov argues that the
statement here does not qualify as rehabilitation evidence because there was no allegation that
the acquaintance had fabricated any testimony. Agafonov also argues that the topics covered in
rehabilitation must be limited to what he inquired to on cross-examination.          Specifically,
Agafonov contends cross-examination was limited to three specific items--the acquaintance did
not go to Agafonov’s house to smoke cigarettes, the acquaintance did not say he had just
returned from Portland, and Agafonov had given the acquaintance $100 because the
acquaintance was short on cash.
       Agafonov is correct that there must first be a charge that the acquaintance fabricated
testimony and that the evidence must be limited to the topics previously addressed in testimony
on cross-examination. Here, when using the police report on cross-examination, Agafonov
asked narrow questions.       Agafonov then asked the following question: “And so all this
information that [the officer] put in his report, those are not things that you said.” While this
question appears to be broad, when viewed in context--following the previous specific
questions--it demonstrates that Agafonov was challenging the acquaintance’s testimony on those
specific points. Once again, the state’s redirect which was limited to those same questions was
proper for rehabilitation of the acquaintance. However, when the state went beyond those
questions and referenced Agafonov’s prior intravenous drug use, there was no rehabilitative
value. The acquaintance had not testified as to that topic in any capacity. Therefore, the
questions regarding Agafonov’s previous intravenous drug use had no rehabilitative purpose, and
the district court erred in admitting them on that basis.
D.     Doctrine of Completeness
       Agafonov argues the district court erred by admitting the statements by the acquaintance
regarding prior intravenous drug use by Agafonov under I.R.E. 106--the doctrine of
completeness. Under I.R.E. 106, when a “writing or recorded statement or part thereof is
introduced by a party, an adverse party may require that party at that time to introduce any other
part or any other writing or recorded statement which ought in fairness to be considered
contemporaneously with it.” While wholesale admission of the entire document is generally
inappropriate, those portions which explain, qualify, or are otherwise relevant are admissible.


                                                  6
See State v. Fain, 116 Idaho 82, 86, 774 P.2d 252, 256 (1989). Agafonov argues that the
admitted testimony regarding prior intravenous drug use did not serve to explain, place in
context, avoid misleading the jury, or ensure a fair understanding of the conversation between
the second officer and the acquaintance. We agree. While the redirect which was limited to the
same questions that Agafonov covered in his cross-examination of the acquaintance was proper
under I.R.E. 106, the police report did not become admissible in its entirety. The statement
regarding Agafonov’s prior intravenous drug use in no way served to explain or place in context
the previous questions asked by Agafonov. The purpose of the doctrine of completeness is to
keep one party from unfairly using portions of a document out of context. In this case, the police
report was not used in a manner which would warrant allowing its wholesale admission. Thus,
the district court erred in admitting those statements under I.R.E. 106.
E.     Rebuttal Evidence
       Last, Agafonov argues the district court erred by admitting the statements by the
acquaintance regarding prior intravenous drug use by Agafonov as out-of-order rebuttal
evidence.    Rebuttal evidence is evidence which explains, repels, counteracts, or disproves
evidence which has been introduced by or on behalf of the adverse party. State v. Olson, 103
Idaho 278, 281, 647 P.2d 734, 737 (1982). Trial courts are given wide latitude with respect to
rebuttal evidence, and “[e]ven where evidence admitted in rebuttal is not strictly rebuttal in
nature, its admission or exclusion rests in the sound discretion of the trial court, provided that the
party against whom such evidence is admitted has the opportunity to meet the evidence.” Id. at
282, 647 P.2d at 738. Agafonov argues that, because the testimony was presented before
Agafonov had offered any testimony in his case and had only made an opening statement, the
district court abused its discretion by allowing the testimony. While Idaho has not squarely
addressed this issue, it addressed a similar issue in State v. Boehner, 114 Idaho 311, 317, 756
P.2d 1075, 1081 (Ct. App. 1988). In that case, the defendant referenced a certain matter during
voir dire, and the state thereafter sought to introduce rebuttal evidence in its case in chief. There,
we stated:
       The state cannot bootstrap rebuttal testimony into its case-in-chief by anticipating
       a defense and then characterizing the unmade defense as a material issue. If this
       does occur, the defendant is denied his right to choose whether, and how, to raise
       certain defenses. He may be forced to litigate, or to default on, an issue he would
       not otherwise have raised. Moreover, when rebuttal evidence is offered
       prematurely, the trial judge is not well situated to evaluate the probative value of

                                                  7
       the evidence on the unframed issue, or to weigh such value against any unfair
       prejudice.

Id. at 318, 756 P.2d at 1082. While other jurisdictions are split on whether an opening statement
opens the door to rebuttal evidence presented in a prosecution’s case in chief, it appears that
most courts which have addressed this issue have held it does not. 1 Boehner appears to accord
with the majority of courts which have addressed this issue, and we hold that statements during
opening argument by the defendant do not open the door to rebuttal evidence by the prosecution
during its case in chief. Therefore, the district court erred by allowing the acquaintance to testify
to the matters in the police report as out-of-order rebuttal evidence.
F.     Harmless Error
       The state argues that, even if the district court erred by admitting the statements by the
acquaintance regarding prior intravenous drug use of Agafonov, such error was harmless. Under
the harmless error doctrine, error in the admission or exclusion of evidence will not result in a
reversal if the error was harmless beyond a reasonable doubt. State v. Field, 144 Idaho 559, 572,
165 P.3d 273, 286 (2007). Thus, erroneous admission of evidence will not be grounds for
reversal on appeal if, absent that evidence, the result of the proceeding would have been the
same. State v. Hall, 111 Idaho 827, 832, 727 P.2d 1255, 1260 (Ct. App. 1986).

1
        Compare United States v. McGuire, 808 F.2d 694, 696 (8th Cir. 1987) (holding the trial
court erred in allowing the government to put on rebuttal evidence in anticipation of a defense set
forth in opening argument), United States v. Basic Const. Co., 711 F.2d 570, 574 (4th Cir. 1983)
(stating that allowing evidence to rebut a defendant's opening argument should be discouraged
and “rebuttal evidence ordinarily should not be permitted for that purpose during the
government's case in chief”), United States v. Tomaiolo, 249 F.2d 683, 689 (2d Cir. 1957)
(opening statement by defendant is not evidence and does not call for rebuttal evidence), Burns
v. State, 609 So. 2d 600, 605 (Fla. 1992) (stating that remarks made by the defendant in opening
argument do not open the door for rebuttal testimony by a state’s witness where the matter has
not been put in issue by the evidence at trial), State v. Donovan, 698 A.2d 1045, 1048 (Me. 1997)
(holding the defendant’s opening statement could not open the door for rebuttal evidence), State
v. Anastasia, 813 A.2d 601, 606 (N.J. Sup. Ct. App. Div. 2003) (stating that opening arguments
are not evidence and cannot be met with rebuttal evidence), and State v. Richards, 438 S.E.2d
331, 335 (W. Va. 1993) (stating that rebuttal evidence can only be introduced to rebut evidence
previously introduced and that the mention of character issues during opening argument does not
open the door to the introduction of otherwise inadmissible character evidence on rebuttal), with
Johnson v. State, 969 A.2d 262, 274-75 (Md. 2009) (acknowledging rule that the state can
introduce evidence to rehabilitate or rebut a witnesses testimony if the defense has opened the
door during opening argument), and Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008)
(stating that a defendant’s opening argument opens the door to rebuttal evidence by prosecution).

                                                  8
       Extensive and convincing evidence was presented at trial to demonstrate that Agafonov
possessed heroin and paraphernalia.        Agafonov admitted to having a drug habit involving
opiates. Agafonov admitted to the possession of the drug paraphernalia (except for the syringes).
Agafonov’s sister testified regarding an incriminating statement made by Agafonov at the
hospital showing consciousness of guilt. The bathroom where the heroin and paraphernalia was
found belonged to Agafonov. Finally, the district court gave a limiting instruction directing the
jury to consider the acquaintance’s statement only for the purpose of assessing the believability
of the acquaintance’s testimony.      It is presumed that the jury followed the district court’s
instructions. See State v. Kilby, 130 Idaho 747, 751, 947 P.2d 420, 424 (Ct. App. 1997). We
therefore conclude beyond a reasonable doubt that the inclusion of evidence of Agafonov’s past
intravenous opiate use did not contribute to the jury’s guilty verdict.
                                                III.
                                           CONCLUSION
       Given the overwhelming evidence against Agafonov, coupled with the district court’s
limiting instruction, any potential error in admission of testimony was harmless beyond a
reasonable doubt. Accordingly, Agafonov’s judgment of conviction for possession of heroin and
possession of paraphernalia is affirmed.
       Judge GUTIERREZ, CONCURS.
       Chief Judge GRATTON, CONCURS IN THE RESULT.




                                                  9
