               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 43211

STATE OF IDAHO,                                 )    2016 Unpublished Opinion No. 784
                                                )
       Plaintiff-Respondent,                    )    Filed: November 21, 2016
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
ROBERT CONRAD MACNEILAGE,                       )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Defendant-Appellant.                     )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bonneville County. Hon. Jon J. Shindurling, District Judge.

       Judgment of conviction and sentences for insurance fraud, affirmed; order
       relinquishing jurisdiction, affirmed.

       Eric D. Fredericksen, Interim State Appellate Public Defender; Sally J. Cooley,
       Deputy Appellate Public Defender, Boise, for appellant.

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

GUTIERREZ, Judge
       Robert Conrad MacNeilage appeals from his judgment of conviction for two counts of
insurance fraud following a jury trial and from the district court’s order relinquishing
jurisdiction. Specifically, MacNeilage argues the district court (1) improperly excluded witness
impeachment evidence; (2) imposed excessive sentences; and (3) abused its discretion in
relinquishing jurisdiction. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       MacNeilage was in the business of repairing and reselling cars.          In March 2013,
MacNeilage purchased a BMW to repair and resell.            Later that same month, MacNeilage
reported to his insurance company that the BMW had been damaged while he was towing it


                                                1
behind his truck. The insurance adjustor declared the car a total loss and paid the claims on the
damage to the car and truck.
       Several months later, MacNeilage’s former business partner, Ronald, contacted the
insurance company to report that MacNeilage had admitted to intentionally damaging the two
vehicles. Ronald owned the auto shop from which MacNeilage was running his business. As
part of the investigation of this allegation, an insurance investigator interviewed a former
employee of MacNeilage, Tanner, who claimed that he was with MacNeilage when he
intentionally damaged the vehicles. The State then charged MacNeilage with four counts of
insurance fraud, Idaho Code § 41-293(1)(c).
       During trial, the jury heard evidence that MacNeilage had purchased the BMW with the
intention of repairing it for a quick sale. MacNeilage was frustrated after learning that a part he
needed to repair the vehicle would not be received for several months. Witnesses testified that
after learning this information, MacNeilage engaged in a conversation with several individuals in
the auto shop about ways to destroy a car. The individuals present for that conversation were
Tanner, Ronald, Ronald’s girlfriend, Justin, Richard, and MacNeilage.
       On the third day of trial, before the jury convened and before Justin and Richard testified,
MacNeilage advised the court that it might want to inquire about Justin’s and Richard’s prior
felony convictions.
       Defense: We do have a 609 issue on Justin [] who was convicted for burglary
                and is currently on probation for felony burglary.
       Court:      Where is your 609 hearing before trial as required by the rule?
       Defense: Well, your Honor, I’m asking for that hearing right now. I don’t know
                what else to say about the conviction. It stands. It’s clearly within the
                grasp of the 609 rule, and it’s clearly a felony that--conviction that
                reflects upon the credibility of the witness.
                ....
       Court:      [B]ased upon what I’ve heard, I will allow reference to the fact that he
                   has been convicted of a felony. I will not allow reference to the nature
                   of the felony. I don’t think that’s--I don’t think this--I don’t think
                   burglary is a crime of moral turpitude. I don’t think it’s the kind of
                   crime that---that would require the mention of the nature of the crime.
                   But you may ask him if he’s been convicted of a felony, and if he
                   answers ‘Yes,’ that’s the end of the discussion.
The court ruled similarly when MacNeilage asked about admitting evidence of Richard’s felony
conviction, stating, “I’ll allow reference to [the] conviction, not to the nature of the crime.”

                                                  2
        The jury found MacNeilage guilty on two counts, but did not reach a verdict on the other
two counts. The district dismissed those counts without prejudice after the State indicated it
would not pursue them.         The court sentenced MacNeilage to concurrent unified six-year
sentences, with two years determinate. The court retained jurisdiction and MacNeilage was
placed in a traditional rider program. MacNeilage filed a timely notice of appeal from his
judgment of conviction. Several months later, at the recommendation of the correctional facility,
the court relinquished jurisdiction over MacNeilage. MacNeilage then filed a motion for a new
trial, which the district court denied.1 We now consider MacNeilage’s appeal from his judgment
of conviction and the district court’s order relinquishing jurisdiction.
                                                  II.
                                             ANALYSIS
        MacNeilage raises three issues on appeal. First, he argues that the district court erred by
not allowing MacNeilage to impeach two State witnesses with information regarding the nature
of their felony convictions.      Second, MacNeilage argues that the district court abused its
discretion by imposing excessive sentences. Finally, MacNeilage contends the district court
abused its discretion in relinquishing jurisdiction. We address each issue in turn.
A.      Witness Impeachment Evidence
        MacNeilage argues he should have been allowed to attack the credibility of two State
witnesses using information as to the nature of their prior felony convictions. Specifically,
MacNeilage wished to elicit that Richard had been convicted of credit card theft and Justin had
been convicted of burglary. The district court ruled that it would allow reference to the fact that
both men had previously been convicted of a felony, but would not allow reference to the nature
of those felony convictions.
        Idaho Rule of Evidence 609(a) sets forth the test for determining whether evidence of a
witness’s prior conviction is admissible at trial. At the time of this trial, the rule read, in relevant
part:
        For the purposes of attacking the credibility of a witness, evidence of the fact that
        the witness has been convicted of a felony and the nature of the felony shall be
        admitted if elicited from the witness or established by public record, but only if
        the court determines in a hearing outside the presence of the jury that the fact of

1
        The denial of this motion is not at issue in this appeal.


                                                   3
       the prior conviction or the nature of the prior conviction, or both, are relevant to
       the credibility of the witness and that the probative value of admitting this
       evidence outweighs its prejudicial effect to the party offering the witness.
I.R.E. 609(a).2 Under this rule, the trial court must apply a two-pronged test to determine
whether evidence of a prior felony conviction should be admitted. The court must determine
(1) whether the fact or nature of the conviction is relevant to the credibility of the witness and
(2) whether the probative value of the evidence outweighs its prejudicial effect. State v. Bush,
131 Idaho 22, 30, 951 P.2d 1249, 1257 (1997); State v. Grist, 152 Idaho 786, 789, 275 P.3d 12,
15 (Ct. App. 2012).
       MacNeilage first asserts, and we agree, that the district court articulated the incorrect
standard regarding the admissibility issue. During trial, the court stated:
       [A]s I understand the rule, there’s a two-part finding that I must make. Number
       one, has he been convicted of a felony? Number two, is the nature of the felony
       such that it is warranted to inform the jury of that--of the nature of the felony
       because it reflects upon credibility?
While the second part of the court’s inquiry aligns with the first prong of the test articulated in
Rule 609(a), the court’s articulation of the standard fails to address the second prong. Moreover,
the court twice incorrectly asserted Rule 609 requires a pretrial hearing. Rule 609(a) only
requires “a hearing be held outside the presence of the jury.” See State v. Franco, 128 Idaho
815, 817, 919 P.2d 344, 346 (Ct. App. 1996).
       When presented with a Rule 609(a) issue, a court is expected to “make a record of its
reasons for concluding that a felony conviction for any particular crime is relevant to the
credibility of the witness with respect to whom the evidence is being adduced.” Franco, 128
Idaho at 818, 919 P.2d at 347. Then, once this determination has been made, the trial court must
“weigh the probative value of the evidence against the prejudice which might result from the
introduction of the evidence.” Id.
       Here, the court did not “make a record of its reasons” supporting its conclusion that the
fact of the convictions would be admissible while the nature of the convictions would not. The
court merely affirmed MacNeilage’s clarification that it was finding burglary to not be a crime




2
       Idaho Rule of Evidence 609(a) has since been modified, effective January 1, 2016.


                                                 4
involving moral turpitude,3 but made no findings with respect to credit card theft. Moreover,
there is no evidence the court expressly considered the probative or prejudicial value of the
evidence, as required under the second prong. We must surmise the court implicitly considered
the prejudicial nature of the evidence based on its recognition that the “purpose of [Rule 609] is
to keep information out from in front of the jury that would be unduly prejudicial,” combined
with the decision to admit the fact of the convictions.
       However, even if we were to accept MacNeilage’s arguments that the district court erred
by not admitting evidence regarding the nature of the witnesses’ felony convictions in addition to
the fact of the felony convictions, such error was harmless. Any error in exclusion of evidence
does not necessarily warrant reversal of a conviction. Where defendants have shown error,
reversal is appropriate unless the appellate court is convinced beyond a reasonable doubt that the
violation did not contribute to the jury’s verdict. Chapman v. California, 386 U.S. 18, 24 (1967);
State v. Perry, 150 Idaho 209, 221, 245 P.3d 961, 973 (2010); State v. Bergerud, 155 Idaho 705,
712, 316 P.3d 117, 124 (Ct. App. 2013).
       MacNeilage contends the error is not harmless because his inability to challenge the
veracity of the witnesses, who allegedly either had disagreements or were associated with
individuals who had disagreements with MacNeilage, contributed to the jury’s guilty verdict.
We find this contention unpersuasive.
       First, the credibility of these witnesses was not crucial to the State’s case. The testimony
elicited by the State from both Richard and Justin dealt with the topic of a conversation that took
place in the auto repair shop shortly after MacNeilage learned he would not be able to obtain
needed parts for the BMW. They testified that on the day of the conversation, MacNeilage
seemed frustrated by the situation and that he and the other individuals in the shop all
participated in joking about various ways to destroy a car. At most, this testimonial evidence
went toward showing MacNeilage’s state of mind and motive for destroying the car. However,
the critical testimony in the case came from Tanner, who testified that he was with MacNeilage
at the time he destroyed the BMW, and from Ronald, who testified that MacNeilage admitted to
him the way in which he destroyed the BMW. Even if we were to assume more specific


3
        MacNeilage had asked the court: “I need the court to just clarify. The reason for the
ruling as to burglary is because the court finds that is not a crime involving moral turpitude?”
The court responded, “That’s right.”
                                                 5
evidence regarding the nature of Justin’s and Richard’s convictions would have caused the jury
to question their truthfulness and not accept their testimony, this would have had no effect on
discrediting the State’s other main witnesses.
       Second, the impeachment value of the excluded evidence was minimal. MacNeilage was
permitted to introduce evidence that the two witnesses had felony convictions but declined to
take advantage of that impeachment opportunity during trial. Instead, MacNeilage now argues
more specific evidence regarding the felony convictions would have challenged the jury’s
opinion of the witnesses’ honesty. This argument is unconvincing. First, theft has only a general
relationship with honesty, and MacNeilage has presented no evidence as to how the facts of these
specific felony convictions involved any element of fraud or deceit. See Grist, 152 Idaho at 791,
275 P.3d at 17 (finding evidence of burglary minimally relevant where no evidence was
presented that the statute under which witness was convicted included element of fraud or
deceit). Moreover, there was already evidence before the jury that both individuals had troubled
pasts. Richard testified that he was uneasy with the conversation about destroying cars because
of “problems in [his] past.” Justin testified that when MacNeilage joked about wrecking the
BMW, Justin “was on felony probation at the time.” Ronald testified that both Richard and
Justin had “criminal records.”
       Finally, the testimony offered by these individuals was corroborated by other witnesses.
Tanner and Ronald both testified to being part of the same conversation as Richard and Justin, to
participating in the jokes about destroying cars, and to not taking MacNeilage’s remarks
seriously.
       In sum, we conclude beyond a reasonable doubt that any purported error by the trial court
in excluding evidence of the specific nature of Richard’s and Justin’s felony convictions did not
contribute to the verdict obtained.
B.     Excessive Sentences
       MacNeilage next argues the district court abused its discretion by imposing excessive
sentences. The district court imposed concurrent unified sentences of six years, with two years
determinate. MacNeilage contends his sentences are excessive in light of the mitigating factors
present in his case. He specifically points to the strong support he has from family and members
of the community, as well as a good work history.



                                                 6
         An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,
the appellant has the burden to show that it is unreasonable and thus a clear abuse of discretion.
State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such
an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice,
103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it
appears at the time of sentencing that confinement is necessary to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,
rehabilitation, or retribution applicable to a given case. State v. Toohill, 103 Idaho 565, 568, 650
P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed
an excessively harsh sentence, we conduct an independent review of the record, having regard
for the nature of the offense, the character of the offender, and the protection of the public
interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When
reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver,
144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
         Applying these standards and having reviewed the record in this case, we cannot say that
the district court abused its discretion based upon the facts of the case.        In imposing the
sentences, the court was focused on its primary objective of protecting society, as well as a desire
to deter MacNeilage from future criminal activity.         The court discussed at great length
MacNeilage’s criminal history, including its assessment that MacNeilage’s history demonstrated
an attitude of disregard for the law. MacNeilage’s argument that the court should have given
more deference to his support network and work ethic falls short of demonstrating that the court
abused its discretion in sentencing. Accordingly, we affirm the sentences imposed by the district
court.
C.       Relinquishment of Jurisdiction
         Finally, MacNeilage contends the district court abused its discretion in relinquishing
jurisdiction. As part of MacNeilage’s sentences, the district court retained jurisdiction over
MacNeilage for the first 365 days of his sentences. MacNeilage was placed into a traditional
rider program. Approximately three months into this program, the district court received a letter
from the correctional facility recommending that the court relinquish jurisdiction over
MacNeilage. The facility made this recommendation because MacNeilage was (1) continuing to

                                                 7
use criminal and addictive thinking patterns, attitudes, and beliefs; (2) not demonstrating that he
was an appropriate candidate for probation; and (3) not willing to take an honest look at his
criminal behavior, beliefs, or attitudes and continued to pose a significant risk of reoffending if
released.
        A trial court’s decision whether to retain jurisdiction is, like the original sentencing
decision, a matter committed to the trial court’s discretion. State v. Hernandez, 122 Idaho 227,
230, 832 P.2d 1162, 1165 (Ct. App. 1992). Retained jurisdiction allows the trial court an
extended time to evaluate a defendant’s suitability for probation. State v. Vivian, 129 Idaho 375,
379, 924 P.2d 637, 641 (Ct. App. 1996). The purpose of retaining jurisdiction after imposing a
sentence is to afford the trial court additional time for evaluation of the defendant’s rehabilitation
potential and suitability for probation. State v. Atwood, 122 Idaho 199, 201, 832 P.2d 1134,
1136 (Ct. App. 1992).
        MacNeilage argues that in relinquishing jurisdiction, the court failed to consider
MacNeilage’s accomplishments while participating in the program. He points to his successful
completion of specific classes and volunteer efforts as evidence of his rehabilitative potential.
He also argues that the disciplinary actions against him while in the program stemmed, at least in
part, from being singled out and intimidated by other inmates. The record before the court
demonstrates that despite the successes MacNeilage experienced in the program, his behavior
was still obstructive and noncompliant. He was reprimanded on numerous occasions for not
adhering to scheduled programming times, possessing unauthorized property, violating the
personal space of staff members, and the unauthorized sharing of phone time. Thus, based on
the record in this case, we cannot say the district court abused its discretion in following the
recommendation of the correctional facility to relinquish jurisdiction.
                                                  III.
                                           CONCLUSION
        Even assuming the district court erred in excluding evidence regarding the nature of the
crimes for which the State witnesses had felony convictions, such error was harmless.
Additionally, the court did not abuse its discretion in sentencing MacNeilage or in relinquishing
jurisdiction. Accordingly, we affirm MacNeilage’s judgment of conviction and sentences and
the district court’s order relinquishing jurisdiction.
        Judge GRATTON and Judge HUSKEY CONCUR.

                                                   8
