MELANSON, Judge.
Gary Wayne Mallory appeals from his judgment of conviction for first degree murder and felony domestic violence. For the reasons set forth below, we affirm.
Mallory's wife died by strangulation on February 14, 2009. The state charged Mallory with first degree murder, I.C. §§ 18-4001, 18-4002, and 18-4003(a); and felony domestic violence, I.C. §§ 18-918(2)(a)(b) and 18-903(a). Prior to trial in March 2010, Mallory filed a motion in limine to preclude the state from introducing evidence or comments concerning injuries the victim sustained prior to the 2009 incidents at issue in this case. Specifically, Mallory requested that, pursuant to I.R.E. 404(b) and I.R.E. 403, the forensic pathologist who examined the victim's body be precluded from testifying that the examination revealed evidence of prior rib injuries. At a pretrial hearing, the district court denied Mallory's motion. At trial, the forensic pathologist testified on direct examination as follows:
On cross-examination, the forensic pathologist reiterated that she could not determine how the victim sustained the old rib fractures. The remainder of her testimony on this issue on cross-examination dealt primarily with her opinion that such injuries would be painful in the days following the injury.
The jury found Mallory guilty of first degree murder and felony domestic violence. The district court sentenced Mallory to a unified term of life imprisonment, with a minimum period of confinement of twenty-eight years, for first degree murder. The district court also sentenced Mallory to a consecutive determinate term of two years for felony domestic violence. Mallory appeals.
Mallory argues that the district court erred by denying his motion in limine. Specifically, Mallory asserts that the district court erred by permitting the testimony of the forensic pathologist regarding the victim's prior rib injuries because such evidence was inadmissible pursuant to I.R.E. 404(b) and I.R.E. 403.
Idaho Rule of Evidence 404(b) provides:
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). Of course, evidence of a prior crime, wrong, or act may implicate a person's character while also being relevant and admissible for some permissible purpose, such as those listed in the rule.
When determining the admissibility of evidence to which a Rule 404(b) objection has been made, the trial court must first determine whether there is sufficient evidence of the other acts that a reasonable jury could believe the conduct actually occurred. If so, then the court must consider: (1) whether the other acts are relevant to a material and disputed issue concerning the crime charged, other than propensity; and (2) whether the probative value is substantially outweighed by the danger of unfair prejudice. Grist, 147 Idaho at 52, 205 P.3d at 1188; State v. Parmer, 147 Idaho 210, 214, 207 P.3d 186, 190 (Ct. App. 2009). On appeal, this Court defers to the trial court's determination that there is sufficient evidence of the other acts if it is supported by substantial and competent evidence in the record. Parmer, 147 Idaho at 214, 207 P.3d at 190. We exercise free review, however, of the trial court's relevancy determination. State v. Sheldon, 145 Idaho 225, 229, 178 P.3d 28, 32 (2008). The trial court's balancing of the probative value of the evidence against the danger of unfair prejudice will not be disturbed unless we find an abuse of discretion. State v. Norton, 151 Idaho 176, 190, 254 P.3d 77, 91 (Ct. App. 2011). 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).
Mallory argues that the forensic pathologist's testimony regarding the victim's prior rib injuries should not have been admitted pursuant to I.R.E. 404(b). Mallory asserts that the inference drawn from the evidence would necessarily be that he committed some prior act that caused the injuries and, because there was no evidence presented as to the actual cause of the injuries, there was insufficient evidence to establish the prior act as fact. Mallory also asserts that the evidence was not relevant to a material disputed issue concerning the crime charged, other than propensity. Specifically, Mallory argues that, because the victim's death was caused by manual strangulation, evidence of the victim's prior rib injuries was irrelevant and, therefore, inadmissible. Mallory further argues that the district court abused its discretion in balancing the probative value of the evidence against the danger of unfair prejudice pursuant to I.R.E. 403. Mallory asserts that the forensic pathologist's testimony had no probative value and was unfairly prejudicial because it led the jury to conclude that Mallory was a man of criminal brutality and, therefore, more likely to have strangled the victim in this case because he had broken her ribs in the past. Mallory finally argues that, because the district court did not view the issue as one implicating Rule 404(b), it did not identify a proper purpose for the Rule 404(b) character evidence and, thus, did not act consistently with legal standards applicable to the specific choices available when denying Mallory's motion in limine.
We first address Mallory's assertion that the district court did not view the issue as one implicating Rule 404(b). We also note that the state argues Mallory's argument fails under the plain language of Rule 404(b) because the victim's prior rib injuries, without any evidence presented that Mallory caused the injuries, does not qualify as evidence of any prior crime, wrong, or act committed by Mallory that would be subject to exclusion under the rule. We agree. The forensic pathologist's testimony regarding the victim's prior rib injuries does not implicate Rule 404(b). As such, Mallory's claim that such testimony was inadmissible pursuant to Rule 404(b) is without merit.
We next address Mallory's argument that the district court abused its discretion in balancing the probative value of the forensic pathologist's testimony against its prejudicial effect pursuant to Rule 403. Idaho Rule of Evidence 401 provides that relevant evidence is 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. Further, Rule 403 provides that, although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. A lower court's determination under Rule 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).
At the hearing on Mallory's motion in limine, the district court stated:
The district court also stated:
The state responded:
The district court concluded:
The forensic pathologist's testimony regarding the victim's prior rib fractures was not directly relevant to a determination of the cause of death because the forensic pathologist testified that the cause of death was manual strangulation. However, the testimony regarding recent rib fractures was relevant because Mallory was also charged with domestic violence. Thus, the evidence of old fractures was relevant as to the domestic violence charge because it appears that it was admitted to illustrate (as the state argued) the difference between old rib fractures and recent ones and to explain the forensic pathologist's conclusion that the recent fractures were, in fact recent. This evidence was relevant to prove domestic violence. Thus, the evidence was relevant under Idaho Rule of Evidence 401. It also appears from the record that the court engaged in an analysis under Idaho Rule of Evidence 403 and determined that the evidence was not unfairly prejudicial because the old injuries were not linked to Mallory in any way. Ultimately, the forensic pathologist testified on direct examination and again on cross-examination that she had no opinion as to the cause of the old fractures. Therefore, the district court did not err in admitting the evidence of prior rib fractures.
Even if we were to determine that the evidence should not have been admitted, error is harmless and not reversible if the reviewing court is convinced beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. State v. Perry, 150 Idaho 209, 221, 245 P.3d 961, 973 (2010). Thus, we examine whether the error complained of in the present case was harmless. See State v. Lopez, 141 Idaho 575, 578, 114 P.3d 133, 136 (Ct. App. 2005).
We first note that the forensic pathologist's testimony concerning the victim's prior rib injuries was brief. The autopsy findings revealed the victim died from manual strangulation and suffered multiple bruises, several newly fractured ribs, and a dislocated bone. Additionally, the admissible evidence against Mallory was overwhelming. Such evidence included the testimony of the officer that responded to Mallory's residence and found the victim dead in her bedroom. This officer testified that, when he first entered the room, Mallory was curled up on the bed with the victim and clutching her hand. The officer further testified that, after discovering the victim had no pulse, the officer conducted a field interview with Mallory to gain information. The officer testified:
Additionally, an acquaintance of Mallory testified that he saw Mallory push the victim up against a vehicle outside of a tavern on the afternoon of February 13. When asked what happened next, the acquaintance testified that Mallory came back into the tavern; stood there for a few minutes; and then said, "I'm going to kill that bitch if she don't straighten up." A bartender also testified that she saw Mallory in a tavern early in the morning on February 14 and overheard Mallory say "he thought he did something bad." Further, a patron of that tavern testified that, during his conversation with Mallory in the tavern on the morning on February 14, Mallory stated that, "I think, you know, I might have did something wrong."
We conclude that the pathologist's brief reference to the victim's prior rib injuries was not so prejudicial so as to overwhelm or even call into question all the admissible evidence that Mallory was guilty of first degree murder and felony domestic violence such that the reference can be said to have contributed to the verdict in any meaningful way. Accordingly, we are convinced beyond a reasonable doubt that, even assuming the district court erred by admitting the pathologist's testimony regarding the victim's prior rib injuries, such error did not contribute to the verdict obtained against Mallory and was, therefore, harmless.
Mallory's claim that the forensic pathologist's testimony regarding the victim's prior rib injuries was inadmissible pursuant to I.R.E. 404(b) is without merit because such testimony does not implicate I.R.E. 404(b). Further, the district court did not abuse its discretion in determining that such testimony was not unfairly prejudicial. Even assuming that the district court erred by admitting such testimony, the error was harmless because we are convinced beyond a reasonable doubt that the error did not contribute to the verdict obtained against Mallory. Accordingly, Mallory's judgment of conviction for first degree murder and felony domestic violence is affirmed.
Chief Judge GRATTON and Judge GUTIERREZ,
