THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

GRATTON, Chief Judge.

Following a jury trial, Shane K. Smith was found guilty of burglary, Idaho Code § 18-1401, and petit theft, Idaho Code §§ 18-2403(1), 18-2407(2). Smith argues that the trial court erred in preventing him from impeaching the victim, Patricia Bosquez, with her past history of drug use and dealing. We reverse.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Smith was charged with petit theft and burglary for having entered Patricia Bosquez's residence "with intent to commit the crime of theft."1 Bosquez told police and testified at the preliminary hearing that she did not know Smith. In anticipation of admission of evidence from Smith that he and Bosquez had a drug-related relationship, the State requested, through a motion in limine, that the court prohibit defendant, defense counsel, and defense witnesses from referring in any way to Bosquez's prior conviction, prior drug use, or prior incarceration. The district court granted the State's motion and concluded that evidence that Smith and Bosquez knew each other and had been seen together was relevant, but any evidence that they used drugs together or that Bosquez had possessed drugs was not relevant. The court further held that the probative value of evidence of Bosquez's incarceration for a drug-related offense was greatly outweighed by its unfair prejudice. The court's order did permit Smith to question Bosquez regarding whether she was under the influence of alcohol or drugs on the day of the burglary, and offer evidence that she used drugs or alcohol on the day of the burglary to test her ability to recall. The order directed the parties to raise a request outside the presence of the jury, if it became necessary, to readdress these issues. The jury found Smith guilty of burglary and petit theft. Smith appeals.

II.

DISCUSSION

Smith claims he should have been allowed to establish the basis of his relationship with Bosquez. Though Smith includes many facts and rulings by the trial court in his appellate brief, his asserted basis for relief is the preclusion of testimony that Bosquez was a drug dealer generally, and Smith's drug dealer specifically.2

Evidence is relevant if it has 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. Idaho Rule of Evidence 401. Relevant evidence is admissible, except as provided by another rule, and irrelevant evidence is not admissible. I.R.E. 402. We review questions of relevance de novo. State v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993).

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. I.R.E. 403. 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). 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).3

In Smith's response to the State's motion in limine, Smith asserted:

The trial court granted the State's motion in limine and held that the defense witnesses could not testify or make any reference to Bosquez's prior drug usage or possession. The court's order did not directly reference Bosquez's alleged drug dealing generally, or to Smith specifically. The trial court did allow questioning of Bosquez as to whether she was under the influence of alcohol or drugs at the time of the burglary for purposes of inquiring into her ability to accurately recall the events. The order also directed that "[i]f counsel finds it necessary during trial to readdress these issues then counsel may do so outside the presence of the jury."

At trial, Bosquez testified that she was home alone at the time of the burglary and after hearing a loud noise and breaking glass, she discovered Smith in her bedroom with her jewelry box. She confronted him, and he left the residence with the jewelry box and drove off alone. Two other unidentified men ran off in different directions. She memorized Smith's license plate number. After writing down the license plate number, she again went outside as a police officer (who was monitoring traffic in the area) arrived in front of her residence. Bosquez testified that the officer could see her door had been damaged and there was glass everywhere. The officer asked her if there was a problem. Bosquez notified the officer of the burglary and gave him the license plate number. Later, when provided with a photo lineup based on driver's license photos, Bosquez picked out Smith. Bosquez testified she had never seen Smith before and did not know who he was. On cross-examination, Smith asked if there was any way Bosquez was unclear with what had occurred because of methamphetamine use. Bosquez answered: "My — the account of the events are very clear to me because I was getting ready for work and I was not under the influence of any methamphetamine. I've been clean since 2005."

After Bosquez completed testifying, and outside the presence of the jury, Smith requested to recall Bosquez at some point to impeach her statement that she had been clean since 2005. Smith argued that Bosquez's statement opened the door for her to be impeached with her drug use and with her conviction. Smith stated that he knew that Bosquez was in prison for violating her parole on a possession of controlled substance charge and that she was arrested in 2008 for possession of drug paraphernalia. The trial court ruled Smith could not recall Bosquez, but he could call witnesses to impeach Bosquez's testimony that she had not used methamphetamine since 2005. As to the possession of paraphernalia conviction, the court indicated that it was not relevant to drug use or otherwise admissible. Thus, defense witnesses were only allowed to testify that Bosquez and Smith knew each other generally, and that Bosquez used drugs after 2005.

During her testimony, Bosquez acknowledged that she was acquainted with defense witnesses Aimee Weery, Misty Erickson-Counts, and Cory Stefani. Aimee Weery was called as Smith's first witness and testified she had known Bosquez for nine years and she knew that Bosquez knew Smith because she had introduced the two of them about a year before trial at Bosquez's residence. Weery also testified that she had used controlled substances with Bosquez after 2005. Misty Erickson-Counts testified that she had known Bosquez for about a year and a half and had known Smith for about two years. Erickson-Counts testified that Bosquez knew Smith and that she had seen the two of them talking to each other at a house.

Cory Stefani, Smith's roommate, testified that he had known Bosquez for two or three years. Stefani testified that he remembered seeing Smith together with Bosquez at Bosquez's residence. On cross-examination, the State asked Stefani if he remembered telling the State's investigator that Bosquez owed Smith some money. Stefani stated "I — I don't recall, no." Based on this exchange, Smith requested the jury to be excused to clarify what questioning he could pursue on re-cross-examination of Stefani. Smith argued that the State's cross-examination of Stefani was based on Stefani telling the State's investigator that maybe Bosquez owed Smith money because of their drug relationship, which opened the door to testimony about their drug relationship. To aid the court's ruling, Smith asked Stefani a number of questions outside the presence of the jury:

Smith argued that the State's question regarding owing money opened the door, and Stefani should be allowed to testify that Bosquez sold drugs and that the relationship between Bosquez and Smith was based on using and purchasing of drugs. The State responded that it did not open the door, that the district court had precluded testimony that there was a drug-purchasing relationship and, moreover, that Stefani's offer of proof was insufficient to show personal knowledge that Bosquez and Smith used drugs together or that Smith purchased from Bosquez, but only that she sold drugs generally. The district court ruled:

Smith testified that he went to Bosquez's residence on May 31, 2008, to purchase methamphetamine and both he and Bosquez used methamphetamine. When the banging on the door began, Smith testified Bosquez was toward the back of her residence in her bathroom and he was in the living room with his meth pipe and butane torch. Smith testified he thought the noise was the police so he collected his paraphernalia in preparation to leave. He testified that as the door broke and two men he did not recognize came in, Bosquez came down the hallway yelling that she was going to call the police. Smith stated that he followed the two men out the door of the residence and fled. He stated he fled because he was on parole and did not want to be caught at Bosquez's residence, which was a frequenting house.

On appeal, Smith argues it was error to exclude evidence that Bosquez was a drug dealer generally, and that she was his drug dealer specifically. As noted above, the issues relating to Bosquez and drugs arose from Bosquez's pre-trial assertions that she did not know Smith and anticipated evidence from Smith that, in fact, they had a drug-related relationship. The State's motion in limine acknowledged that evidence that Bosquez knew Smith was admissible for impeachment of that statement. However, the State argued that evidence of Bosquez "possessing controlled substances, her incarceration, or any evidence of Ms. Bosquez's drug use," was simply inadmissible character evidence and, also, precluded by I.R.E. 404(b).

In response, Smith argued that the evidence relative to drugs was not character evidence but, first, part of the direct impeachment of Bosque's statement that she did not know Smith. Smith argued that the drug-related evidence was necessary to establish not only that Bosquez lied and knew Smith, but that their relationship went beyond some mere acquaintanceship. In addition to direct testimony that Bosquez and Smith knew each other because of the drug relationship, evidence of Bosquez "possessing controlled substances, her incarceration, or any evidence of Ms. Bosquez's drug use" went to shore up the assertion that she might indeed have a more substantial relationship with Smith than simple testimony that she, in fact, knew Smith might reveal.

While Smith principally argued that the evidence was appropriate for impeachment purposes, he also argued that the evidence was relevant to support his assertion that the prior "drug use/purchase" evidence substantiated his contention that "he was invited into her home," directly negating the intent element of the burglary charge — that he entered Bosquez's residence "with intent to commit the crime of theft." He argued that "it [the drug evidence] becomes very relevant to corroborate his testimony of what he claims happened that day to impeach her testimony and what she claims happened that day."

The district court focused on the impeachment aspect and determined that evidence Bosquez and Smith knew each other was sufficient for impeachment and that the nature of the relationship, through drugs, was more prejudicial than probative relative to impeachment. In reaching its decision, the district court appears to have included evidence regarding Bosquez and Smith's personal drug relationship with the more tangential drug evidence relative to her "possessing controlled substances, her incarceration, or any evidence of Ms. Bosquez's drug use." The district court did not focus on the drug evidence as it related to the reason why Smith might be in Bosquez's home on the day in question. The order does not mention anything regarding Bosquez dealing drugs to Smith or anyone else. The only reference made by the district court to drug dealing was in relation to the Stefani testimony as it related to a supposed debt between Bosquez and Smith. Yet, the district court's order that "defendant, defense counsel, and defense witnesses may not testify or make any reference to the victim's prior drug usage or possession," appears to have included prohibition of any evidence that Bosquez dealt drugs, including to Smith. Thus, the district court did not address the relevance issue as it related to the reason why Smith might be in Bosquez's residence, as opposed to the impeachment question of whether they knew each other.

Evidence that Bosquez dealt drugs to Smith is highly relevant to the issue of why he might have entered her residence on the day in question. While such evidence is also relevant to impeach Bosquez's statements that she did not know Smith, evidence making it more likely that Smith was in Bosquez's residence with permission tends to directly negate an element of the State's burden of proof on the burglary charge, intent. See I.C. § 18-1401. The State argues that the only fact that was potentially relevant to whether Smith had permission to enter Bosquez's home was whether Smith and Bosquez knew each other, not whether she sold him drugs. We disagree.

While Smith testified that he went to Bosquez's residence to buy drugs, he did not state specifically that he was there to buy drugs from her. The order precluded evidence regarding Bosquez's drug dealing, and Smith was precluded from developing why he had been at Bosquez's residence "several" times if, indeed, those occasions related to drugs or purchasing drugs. Smith did testify that he used drugs with Bosquez on the day in question, but that testimony was allowed in the court's order to test Bosquez's ability to accurately recall events of the day. Quite simply, the very nature of a drug seller/buyer relationship makes it much more likely that the buyer might be in the seller's house for that purpose. A mere acquaintanceship, by itself, does not. While Stefani's testimony, outside the presence of the jury, may not have been clear regarding the drug relationship, Smith had informed the court of at least one other witness who would testify that Bosquez dealt drugs to Smith.

In addition, evidence relative to the extent and nature of Bosquez and Smith's relationship has a greater impeaching quality than mere testimony that they knew each other. The jury could excuse Bosquez's testimony that she did not know Smith as simply forgetting an acquaintance, but could not do so if the evidence demonstrated a drug-dealing relationship. This case was a classic credibility contest pitting Bosquez's version of the events against Smith's version, with no other eyewitnesses or physical evidence directly linking Smith to the crime. In this regard, evidence that Bosquez dealt drugs to Smith was not precluded witness character evidence, I.R.E. 609, or prior bad acts evidence, I.R.E. 404(b). The evidence, then, was not somehow unduly prejudicial to the State or its witness or a source of confusion for the jury.

Although Smith principally argued for admission of the precluded evidence for its impeachment value, he also argued that the evidence was relevant to the issue of his intent which the district court did not directly address. Evidence that Bosquez dealt drugs to Smith was relevant to his claim that he was in her residence with permission, as well as impeaching her testimony that she did not know Smith. Evidence that Bosquez used drugs and/or dealt drugs to third parties could possibly be relevant to make it more likely that Bosquez was Smith's drug dealer, or to the establishment of their relationship, but on the state of the record before us it cannot be determined. Thus, the district court excluded relevant evidence, the probative value of which was not exceeded by any prejudicial effect. Because the excluded evidence related to an element of the offense as well as impeachment of the complaining witness, in a case in which credibility was paramount, we cannot say that the error was harmless.

III.

CONCLUSION

The trial court committed reversible error in excluding evidence regarding the drug-related nature of Bosquez's and Smith's relationship, including, specifically, evidence that Bosquez dealt drugs to Smith. Smith's judgment of conviction is vacated and this matter is remanded to the district court.

Judge LANSING and Judge GUTIERREZ CONCUR.