1 IN THE SUPREME COURT O F THE STATE OF IDAHO Docket No. 48628

STATE OF IDAHO,
Plaintiff-Respondent,

v.
MARIO A. REYES,
Defendant-Appellant. ) ) ) ) ) ) ) ) ) Boise, May 2021 Term
Opinion Filed: October 19, 2021
Melanie Gagnepain, Clerk

Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. George A. Southworth, District Judge.
The judgment of the district court is vacated and the case is r emanded for a new trial.
Eric D. Frederickson, State Appe llate Public Defender, Boise, f or appellant, Mario A. Reyes. Andrea W. Reynolds argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for responde nt, State of Idaho. Andrew V. Wake argued.

_____________________ STEGNER, Justice. Mario Reyes appeals a jury verdict convicting him of domestic b attery, attempted strangulation, and aggravated assault. Reyes appealed to the Id aho Court of Appeals, which affirmed his convictions. Reyes petitioned for r eview by this C ourt, which we granted. On appeal, Reyes requests that his convictions be vacated. Reye s first argues that several evidentiary issues, including the admission of irrelevant and p rejudicial evidence, rendered his trial unfair. Reyes next argues that t he district court abused its di scretion when it found that the victim was unavailable to testify at trial under Idaho Rule of Evidenc e 804(a)(5) and allowed her preliminary hearing testimony to be read into the record. Addit ionally, Reyes argues that the prosecutor’s closing argument impermissibly implied that the vi ctim did not testify because she feared Reyes. Finally, Reyes argues that these errors, when tak en together, deprived him of his right to due process and a fair trial. For the reasons set fort h below, we vacate Reyes’ convictions.2 I. F ACTUAL AND P ROCEDURAL B ACKGROUND On July 16, 2017, two officers with the Caldwell Police Departm ent were dispatched to Reyes’ residence after receiving a 911 “hang up” call. When the first officer arrived, he observed Reyes and another individual on t he front porch of the residenc e. The officer ordered them to stop moving. Reyes attempted to re-enter the residence, but the offi cer followed him and placed him in handcuffs. An officer then placed Reyes in the back of a police vehicle, where another officer
interviewed him several minutes later. The second officer asked Reyes what had happened, to which Reyes responded that he d id not know. Reyes repeatedly de nied harming his wife. Inside the residence, officers found Marina Reyes (Marina) 1 lying on the floor with her head resting on a blood-soaked pillow. When asked whether Reyes had hit her, Marina told officers
that she did not remember what had occurred. There were two wit nesses present in the home:
Marina’s niece and her niece’s husband. Both witnesses told off icers that Reyes and Marina had been fighting, and that Reyes ha d beaten her. Officers then pla ced Reyes under arrest. Reyes was charged with domestic battery, attempted strangulatio n, aggravated battery, and malicious injury to property. A pr eliminary hearing was held, a t which both Mar ina and her niece testified that Reyes had beaten her. Specifically, Marina testi fied that Reyes had hit her “all over,” “choked her,” and had thrown a clothes iron at her. She also te stified that as she was trying to leave with her niece, Reyes pulled h er to the ground by her hair and then kicked her in the nose. Reyes’ counsel cross-examined Marina. The testimony provided by Marina ’s niece at the preliminary hearing was consistent with Marina’s. Reyes was bound over to t he district court, and a criminal
information was filed. A three-day jury trial was he ld from May 2 through 4, 2018. Ma rina’s niece and her niece’s husband testified that they had heard a fight occurring in Reye s’ bedroom. They were eventually able to open the bedroom door, where they saw Reyes with one ha nd around Marina’s neck and holding a clothes iron in the other. The two witnesses testifie d that they separated Reyes and Marina, and as they exited the bedroom, Reyes pulled Marina dow n to the ground by her hair and kicked her in the nose. At trial, Reyes testified in his own de fense, during which the State was permitted to describe a police report to the jury that “allege[ d Reyes had] committed the criminal offenses of attempted strangula tion, domestic battery, maliciou s injury to property, and witness

1 In order to make it easier to distinguish between Mr. and Mrs. Reyes, we have referred to Mrs. Reyes as Marina. No disrespect is intended to Mrs. Reyes by the use of her first na me.3 intimidation[ ]” which involved previous charges. The State als o elicited testimony at trial that Reyes was on probation on the night in question, and therefore was prohibited from consuming alcohol and being present in a ba r, which Reyes had been prior to the incident with Marina. After the State rested, the di strict court dismissed count four of the information—malicious injury to property. The jury convicted Reyes of domestic batter y, attempted strangulation, and aggravated assault. The distric t court imposed an aggregate sen tence of five years fixed, followed by five years indeterminate. Reyes appealed to the Idaho Court of Appeals, which affirmed his
convictions. See State v. Reyes , No. 46439, 2020 WL 3496329 (Idaho Ct. App. June 29, 2020). This Court granted Reyes’ petition for review.
II. S TANDARD OF R EVIEW “When reviewing a case on petitio n for review from the Court of Appeals this Court gives due consideration to the decision reached by t he Court of Appeals, but directly reviews the decision of the trial court.” State v. Chernobieff , 161 Idaho 537, 539, 387 P.3d 790, 792 (2016) (quoting State v. Lute , 150 Idaho 837, 839, 252 P.3d 1255, 1257 (2011)). “This Court is not merely reviewing th e correctness of the Court of Appeals’ decision; rather, this Court is hearing t he matter as if the case were on direct appeal from th e trial judge’s decision.” Gilpin-Grubb v. State , 138 Idaho 76, 79, 57 P.3d 787, 790 (2002).
Marsalis v. State , 166 Idaho 334, 458 P.3d 203, 208 (2020). “The question of whether evidence is relevant is reviewed de n ovo, while the decision to
admit relevant evidence is reviewed for an abuse of discretion. ” State v. Hall , 163 Idaho 744, 781, 419 P.3d 1042, 1079 (2018) (quoting State v. Shutz , 143 Idaho 200, 202, 141 P.3d 1069, 1071 (2006)).
To determine if a trial court a bused its discretion, this Court considers whether the trial court (1) perceived the issue as one of discretion, (2) a cted within the outer boundaries of that discretion, (3) acted consistently with the legal standards applicable to the specific choices available to it, and (4) rea ched its decision by an exercise of reason.
State v. Abramowski , 164 Idaho 857, 860, 436 P.3d 678, 681 (2019) (citing Lunneborg v. My Fun Life , 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)).
III. A NALYSIS On appeal, Reyes contends that multiple errors occurred during his trial, two of which were conceded by the State. Because these multiple errors rendered Reyes’ trial unfair, we vacate his
convictions under the cumu lative error doctrine.4 A. Errors acknowledged by the State. We begin by noting that the State has acknowledged that two sub stantive errors occurred at trial. First, the State concedes that it was error for the p rosecutor to list previous charges brought against Reyes during Reyes’ testimony at trial. Second, the Sta te also concedes that “the district court erred when it allowed the prosecutor to question Reyes ab out his felony probation and the probation conditions that he not be present in a bar or drink a lcohol.” While acknowledging these errors, the State maintains they were harmless.
1. Listing of prior charges At trial, Reyes testified in his own defense. On cross-examina tion by the State, the prosecutor questioned Reyes regarding a 2015 incident with his wife as follows: “Q. [By prosecutor]: This is a report from the Caldwell Police Departme nt dated November 8th of 2015. It alleges you committed the criminal offense[s] of attempted stra ngulation, domestic battery, malicious injury to propert y, and witness intimidation.” The State concedes that it was error for the prosecutor to have read aloud the charges from the 2015 police report involving Reyes in the presence of the j ury. Idaho Rule of Evidence 404(b) prohibits the use of evidence of “a crime, wrong, or other act” “to prove a person’s character.” I.R.E. 404(b)(1)-(2). Rule 404 clearly aims to prevent a jury f rom making the impermissible assumption that if a defendant act ed in a certain way in the pa st, he is likely to have acted accordingly in the present. See W RIGHT & M ILLER , F ED

. P RAC

. & P ROC

. E VID . § 5243 (2d ed. 2021) (“When [] jurors convict because the prosecutor shows them many crimes for which the defendant has not been convicted, this may impair the defendant’s constit utional right to be proven guilty of
the charged crime ‘beyond a reasonable doubt.’ ”) (italics added). Three o f the prior allegations against Reyes were identical to the charges he faced at trial, creating an even greater likelihood that the jury would infer that he must have acted similarly in the case at bar. As such, the State’s listing the prior crimes with which Reyes had been previously c harged created a high likelihood of unfair prejudice and was there fore obviously error as conced ed by the State.
2. Probation status Also during the State’s cross-ex amination of Reyes, the followi ng exchange took place: Q: On July 16 of 2017[,] you were on felony probation, correct? A: Yes. Q: So you were not supposed t o be in a bar, were you? Mr. Prior [defense counsel] : Judge, I’m going to object to rele vance.5 THE COURT: Overruled. THE WITNESS: Correct. Q. [By the prosecutor]: And you were not supposed to be drinkin g either, were you? A: Correct. The State concedes “that the district court erred when it allo wed the prosecutor to question Reyes about his felony probation status and the probation condi tions that he not be present in a bar
or drink alcohol.” The State als o concedes that it was error fo r the district court to allow the prosecutor to inquire about Reyes ’ status as a probationer. All relevant evidence may be admitted
at trial. See I.R.E. 401, 402. The bar for relevancy is typically low, requi ring only that the disputed
evidence have “ any tendency to make a fact more or less probable.” I.R.E. 401 (ita lics added). The evidence must also constitute a “fact [] of consequence in dete rmining the action.” Id. Simply put, the State’s introduction of Rey es’ felony probation status and violation of the terms of his probation did not have any tendency to make it more or less pro bable that Reyes had harmed Marina, nor was it a fact of consequence in determining Reyes’ guilt. The evidence was not only irrelevant, but also spoke to Reyes’ character, something the S tate sought to (impermissibly) denigrate throughout the trial. While the State had already impeached Reyes by introducing a pr ior felony conviction, it attempted to paint him in a further negative light by informing the jury that not only was Reyes on probation, but also that he was in violation of that probation. In many respects, the State sought to portray Reyes as someone who could not, or would not, comply wi th a court order. In other words, he was someone who was particular ly incapable of complying with a court of justice. It is one thing to show someone has committed a felony. It is another to prove that someone will flaunt the rules of probation while out in society. There is no justificat ion for this evidence other than to paint Reyes as a rule breaker; such an act by the State was clearly u nfairly prejudicial to Reyes. We next address errors alleged by Reyes which the State has not concede d.
B. The district court erred when it determined that Marina was una vailable to testify at trial and allowed her prelimin ary hearing testimony to be re ad into the record. At the preliminary hearing, Marina testified that Reyes had “ch oked” and “hit” her on the night in question. Subsequently, at trial, the State sought to declare Marina unavailable so it could read her preliminary hearing test imony into the r ecord. The Sta te argued that she was unavailable because it had attempted to serve her with a subpoena several t imes but had ultimately been unable
to secure her attendance at trial . In support of its argument, the State called four witnesses, each of whom had attempted to serve Mari na with a subpoena in the days preceding the trial.6 After hearing this testimony, the district court heard argument from both the State and Reyes’ counsel. Reyes’ counsel inf ormed the district court that Marina had been subpoenaed and was expected to appear and testify for the defense the followin g day. Reyes’ counsel contended
that Marina was not unavailable because she would be appearing the next day, and the State would have an opportunity to call her as a witness and cross-examine her. Nonetheless, t he district court
found that Marina w as unavailable: I’ve reviewed [Idaho Rule of Evidence] 804(a)(5), which defines unavailability is [sic] the witn ess is absent from the hearing and the proponent of declarant’s statements has been unable to procure declarant’s a ttendance by process or other reasonable means. I have reviewed this. It is apparent that Ms. Reyes has been ac tively avoiding the service of process. . . . I furthermore don’t think that the State should be required to bear the risk of whether or not Ms. Reyes decides to appear tomorrow. And the n certainly they could cross-examine her on her preliminary hearing testimony, w hich could be used as substantive evidence by the jury if it impeaches her under t he rules because it was prior sworn testimony. But th at would be requiring the Stat e to bear the brunt of her failure to appear. And I don’t think that the State shou ld have to do that should she not appear or have t o take that risk should she not appear. For purposes of 804(a)(5), this Co urt does find that the declar ant is unavailable. The Court further finds that declarant’s previous testimony was in this very same case. There was a chance for cross-examination of the declarant or of the witness and a full cross-examination of the witness. And the Co urt finds that the witness by actively avoiding service of process now is unavaila ble pursuant to Rule 804(a)(5). Will allow the State to present her preliminary hear ing transcript. Marina’s preliminary hearing te stimony was then read to the jur y. The next day, Marina appeared to testify as a result of having been served with a defense subpoena. The district court informed counsel that it intended to appoint a public defender to represent her. The district cour t was concerned that she would perjure herself if she testified for the defense, given her preliminary hearing testimony. After con sulting with a public defender,
Marina took the stand and invoked h er Fifth Amendment right aga inst self-incrimination. On appeal, Reyes argues that Marina was not unavailable within the meaning of Idaho Rule of Evidence 804(a)(5) because she was expected to testify the n ext day and was under defense counsel’s subpoena to appear. Reyes asserts that there “was not hing stopping the State from calling Ms. Reyes in its case-in-chief when she showed up at court the next day.” Reyes further contends
that the district court’s decision to declare Marina unavailabl e “surely contributed to the verdict.”7 Reyes also asserts that the distr ict court improperly allowed M arina to invoke her Fifth Amendment privilege. In response, the State argues that Idaho Rule of Evidence 804(a )(5) only requires that it make a good faith effort to obtain a witness’s attendance at tr ial. The State contends it made a good faith effort to obtain Marina’s p resence at trial because it at tempted four times to serve her with a subpoena for the correct trial date. Additionally, the State as serts that “the second requirement [of the rule] is only that ‘ the statement’s proponent has not been able, by process or other reasonable means, to procure . . . the declarant’s attendance.’ ” (Italics in original.) The State also notes Reyes’ argument that the district court erred when it permitted Marina to invoke the Fifth Amendment was not objected to below, and therefore cannot be considered f or the first time on appeal. (Citing State v. Gonzalez , 165 Idaho 95, 99, 439 P.3d 1267, 1271 (2019)). Reyes counters by first pointing out that “[m]erely avoiding se rvice of process . . . does not make a witness unavailable.” Reyes contends that because Marina was under a defense subpoena to appear to testify before the State rested, she was not unava ilable as defined by Idaho Rule of Evidence 804(a)(5)(A). “The determination of whether a witness is unavailable, such th at preliminary hearing testimony is admissible, is evidentiary in nature. Evidentiary decisions are reviewed under an
abuse of discretion standard.” State v. Anderson , 162 Idaho 610, 617, 402 P.3d 1063, 1070; see also Lunneborg , 163 Idaho at 863, 421 P.3d at 194. “In determining unavailabi lity, ‘[t]he district court’s factual finding must be supported by substantial and co mpetent evidence.’ ” State v. LopezOrozco , 159 Idaho 375, 381, 360 P.3d 1056, 1062 (2015) (quoting State v. Richardson , 156 Idaho 524, 531, 328 P.3d 504, 511 (2014)). “It is the proponent of the testimony that has the burden to es tablish unavailability.”
Anderson , 162 Idaho at 616, 402 P.3d at 1069 (citing State v. Perry , 144 Idaho 266, 269, 159 P.3d 903, 906 (Ct. App. 2007)). “The lengths to which the prosecutio n must go to produce a witness is a question of reasonableness.” Id. at 617, 402 P.3d at 1070 (quoting Burns v. Clusen , 798 F.2d 931, 937 (7th Cir. 1986)). Idaho Rule of Evidence 804(b)(1) provides an exception to the h earsay rule where a witness is unavailable at trial. It allows for the admi ssion of former testimony where: (1) the witness is unavailable; and (2) “the p arty against whom the testimony is now offered . . . had an opportunity and simil ar motive to develop the testimony by direct, cross, or redirect examination.”8 Lopez-Orozco , 159 Idaho at 381, 360 P.3d at 1062 (quoting I.R.E. 804(b)(1)) . “A declarant is
considered to be unavailable as a witness if the declarant: . . . is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure
. . . the declarant’s attendance. ” I.R.E. 804(a)(5)(A) (italics added). As a preliminary matter, we will not consider Reyes’ argument that his wife was erroneously allowed to invoke the Fifth Amendment because Reyes did not raise this argument in the trial court, despite hav ing the opportunity to do so. See Gonzalez , 165 Idaho at 99, 439 P.3d at 1271. Next, we conclude that the district court abused its disc retion in declaring Marina unavailable. First, the State had not rested its case at the ti me it sought to declare Marina unavailable. The State sought to declare Marina unavailable on the second day of trial, to which the district court agreed. Marina ’s preliminary hearing testimo ny was then read to the jury. On the third day of trial, Marina appear ed pursuant to a defense subpo ena. At this point, the State still planned to call an additional w itness and had not rested. The d istrict court was aware that Marina had been subpoenaed to appear on the third day of trial. Rather than prematurely declaring Marina unavailable on the second day of trial, the district court shou ld have declined to rule on her availability until it was clear the State would be unable to ca ll her during its case-in-chief. Regardless of who was able to se rve Marina with a subpoena, she appeared on the third day of trial, and nothing would have prevented the State from calling her as a witness prior to resting its case. The State did not prove that she was “absent from the tri al,” particularly in light of the fact she appeared at the tria l. I.R.E. 804(a)(5)(A). Additionally, we are unpersuaded that the State made reasonabl e efforts to secure Marina’s attendance at trial. The State contends that Marina was evading service, yet it had previously been
able to serve her for an incor rect trial date. Although the dis trict court acknowledged that there was confusion surrounding two pot ential trial dates, we conclud e that the State could—and should—have served her for both potential trial dates at the sa me time. Once the alternate date became apparent, Marina could have been released from the unnee ded date. Further, the State’s failure to serve Marina was cured by the defense’s ability to s erve her for the proper trial date. A determination of availability cannot rest solely on which party is able to secure service of process. At the end of the day, Marina pre sented in court before the Sta te rested its case. The district court should have declined to rule on her availability until it deter mined whether she would comply with the defense’s subpoena. The State still had the opportunity to call Marina to the stand after the9 district court determined she was unavailable. Thus, the distri ct court’s determination that Marina was unavailable on the second day of the trial was premature an d erroneous.
C. The prosecutor’s comment that Marina was “probably scared” to t estify at trial was improper. During the State’s closing argument, the prosecutor argued that Marina may not have
testified because of her fear of Reyes: “Certainly, Marina is p robably scared.” Reyes’ counsel objected, to which the district court impliedly overruled the o bjection by merely responding, “It’s argument.” On appeal, Reyes alleges that the prosecutor committed miscondu ct when she “invited the jury to infer facts which she knew to be false and put facts no t in evidence before the jury.” Instead, Reyes contends that the actual reason Marina did not testify wa s because the district court “ sua sponte appointed [her] a lawyer to warn her not to perjure herself,” and she took that advice and invoked her Fifth Amendment right. In response, the State asserts that the prosecutor did not enga ge in misconduct during her closing argument because the statement at issue was based on th e evidence. Further, the State contends, attorneys are afforded “considerable latitude” in clo sing arguments. (Quoting State v.
Alwin , 164 Idaho 160, 169, 426, P.3d 1260, 1269 (2018).) Specificall y, the State argues that “the prosecutor’s comment that Marina was ‘probably scared’ to testi fy about the abuse in ‘a room full of strangers’ was based on the evidence and reasonable inferenc es that could be drawn from the evidence.” The State urges that, when read in context, the comm ent that the victim was scared “referred only to [her] fear of t elling strangers about her abu se and not to [her] fear of Reyes.” This Court has examined claims of prosecutorial misconduct as f ollows: [W]hen an objection to alleged pr osecutorial misconduct is rais ed at trial, we use a two-part test to determine whether the misconduct requ ires reversal. See, e.g., State v. Reynolds , 120 Idaho 445, 448, 816 P.2d 1002, 1005 (Ct. App. 1991). First, we ask whether the prosecutor’s challenged action was im proper. State v. Romero–Garcia , 139 Idaho 199, 202, 75 P.3d 1209, 1212 (Ct. App. 2003). If it was not, then there was no prosecutorial misconduct. Id. If the conduct was improper, we then consider whether the misconduct “prejudiced the defenda nt’s right to a fair trial or whether it was harmless.” Id. The defendant carries the burden of proving prejudice. State v. Wright , 97 Idaho 229, 232, 542 P.2d 63, 66 (1975). When a defendant is unable to demonstrate prejudice, the misconduct wi ll be regarded as harmless error. State v. Garcia , 100 Idaho 108, 111, 594 P.2d 146, 149 (1979).
State v. Severson , 147 Idaho 694, 716, 215 P.3d 414, 436 (2009).10 We acknowledge that “ ‘[t]here is considerable latitude in clo sing argument, and both sides are entitled to discuss fully, from their respective standpoint s, the evidence and the inferences that
should be drawn from it.’ ” State v. Miller , 165 Idaho 115, 122, 443 P.3d 129, 136 (2019), reh’g
denied (June 12, 2019) (quoting State v. Alwin , 164 Idaho 160, 169, 426 P.3d 1260, 1269 (2018)). “Moreover, ‘in reviewing allegations of prosecutorial misconduc t the Court must keep in mind the
realities of trial. A fair trial is not necessarily a perfect t rial.’ ” Id. at 123, 443 P.3d at 137 (quoting State v. Lankford , 162 Idaho 477, 494, 399 P.3d 804, 821 (2017)). We have previously noted that “[p]rosecutorial misconduct occu rs when the State ‘attempts to secure a verdict on any factor other than the law as set for th in the jury instructions and the evidence admitted at trial, including reasonable inferences tha t may be drawn from that
evidence.’ ” Miller , 165 Idaho at 122, 443 P.3d at 136 (quoting State v. Bernal , 164 Idaho 190, 196, 427 P.3d 1, 7 (2018)). “[T]he prosecutor has a duty to avo id misrepresentation of the facts and unnecessarily inflammatory tactics.” Id. “Inflammatory comments are comments which are
‘calculated to inflame the minds of jurors and arouse passion o r prejudice against the defendant, or [are] so inflammatory that the jurors may be influenced to d etermine guilt on factors outside the
evidence.’ ” Id. at 123, 443 P.3d at 137 (quoting State v. Sheahan , 139 Idaho 267, 280, 77 P.3d 956, 969 (2003)). The prosecutor engaged in prosecutorial misconduct when she co mmented that Marina was “probably scared” to testify due t o her alleged fear of Reyes. The prosecutor’s closing argument in this case was an attempt to portray Marina as fearful of Rey es simply because she did not testify at trial. This was not the first comment by the State made in t he presence of the jury concerning the purported reason that Marina did not testify at trial. The State made persistent efforts throughout the course of the trial to present Marina as fearful of Reyes, despite the fact that
evidence to that effect was not elicited at trial. No facts in evidence suggested that she refused to testify because she feared Reyes . The prosecutor’s statement th at Marina was “probably scared” of Reyes was inflammatory in that the jury was “influenced to d etermine guilt [based] on factors
outside the evidence.” Miller , 165 Idaho at 123, 443 P.3d at 137 (citations omitted). Theref ore, this statement was improper and constituted prosecutorial misco nduct.
D. The district court did not abuse its discretion in allowing the State to ask why Marina’s niece asked officers to lie about who called 911. Marina’s niece testified at tri al about what she observed on th e night of the incident. During
the State’s direct examination of her, the following exchange t ook place:11 Q: [Okay], when you spoke with law enforcement on July 16th of 2017, did you ask them to tell the defendant t hat the neighbors had called th e police? A: Yes. Q: Why did you ask them to tell [R eyes] that the neighbors call ed the police? [Defense counsel]: Judge, I’m going to object. It’s irrelevant. [The State]: Your Honor, I think it goes to motive or bias, whi ch I assume [the] defense is going to attack. [Defense counsel]: Then it goes to speculation then if she does n’t know I’m going to attack it or not. THE COURT: Overruled. I will allow it. Q. [By the prosecu tor]: You can answe r that question[.] A: Can you repeat it, please. Q: Why did you asked the police to tell the defendant that the neighbors had called instead of you? A: Because then my aunt won’t talk to me anymore. Q: Is Marina talking to y ou at this point in time? A: No. On appeal, Reyes argues that this evidence was irrelevant to p roving whether Reyes committed the charged conduct. Further, Reyes argues that evide nce is only relevant for the purpose of rehabilitating a witne ss “after the witness’s credib ility has been attacked.” (Citing State v. Ellington , 151 Idaho 53, 62, 253 P.3d 727, 736 (2011)). Thus, Reyes argu es, this evidence was not “properly admitted to rebut a supposed anticipated attack o n Marina’s credibility as argued by
the State.” In response, the State notes tha t Reyes’ counsel only objected to the prosecutor’s second question as to why she requested that law enforcement officers lie about who dial ed 911 and failed to object to the first question of whether she had made the request at all. The State next asserts that it was permitted to “draw the sting” of the victim’s niece’s te stimony by “adopting a strategy of full disclosure” on direct-examination. “The prosecutor first e licited—without objection—the damaging testimony that [the victim’s niece] had asked the poli ce to lie about circumstances related to the alleged abuse. The prosecutor then drew the stin g of that testimony by having [her] explain her reque st to the jury.” The State distinguishes the facts of State v. Ellington , relied upon by Reyes, noting that it “did not try to support [her] credibility before an attack; it first attacked [her] credibility by eliciting that she asked police to lie about circumstances surrounding th e abuse, and then, only after that attack, the [S]tate drew the sting using [her] explanation that she made the request to protect her relationship wit h [the victim.]”12 “Evidence is relevant if: (a) it has any tendency to make a fac t more or less probable than it would be without the evidence; and (b) the fact is of conseq uence in determining the action.” I.R.E. 401. Relevant evidence is g enerally admissible. I.R.E. 4 02. Even relevant evidence may be excluded by the district court if “its probative value is substantially outweighed by a danger of . . . unfair prejud ice[.]” I.R.E. 403. “In other words, evidence should be e xcluded if it invites inordina te appeal to lines of reasoning outside of the evidence or emotions which are irrelev ant to the decision making process.” State v. Rhoades , 119 Idaho 594, 604, 809 P.2d 455, 465 (1991).
Garcia , 166 Idaho at 670, 462 P.3d at 1134. The district court did not abuse its discretion in overruling Reyes’ objection to the State’s question regarding why Marina’s niece asked officers to lie. Th e State’s inquiry into Marina’s niece’s reason for asking officer s to lie about who called the authorities was relevant pursuant to Idaho Rule of Evidence 401. There was no danger of unfair preju dice to Reyes, nor was it impermissible for the State to attack its own witness’s credibi lity before allowing the witness to explain her reason for lying. See Hayes , 166 Idaho at 656, 462 P.3d at 1120 (“Idaho Rule of Evidence 607 states that ‘[a]ny party, including the party that called the witness, may attack the witness’s credibility.’ ”).
E. In the aggregate, the errors at R eyes’ trial rendered the trial unfair.
“Under the doctrine of cumulativ e error, a series of errors, ha rmless in and of themselves, may in the aggregate show the absence of a fair trial. However, a necessary predicate to the application of the doctrine is a finding of more than one error .” State v. Adamcik , 152 Idaho 445, 483, 272 P.3d 417, 455 (2012) (quoting State v. Perry , 150 Idaho 209, 230, 245 P.3d 961, 982 (2008)). “The presence of errors, however, does not by itself r equire the reversal of a conviction, since under due process a defendant is entitled to a fair trial , not an error-free trial.” State v.
Johnson , 163 Idaho 412, 428, 414 P.3d 234, 250 (2018) (quoting State v. Moore , 131 Idaho 814, 823, 965 P.2d 174, 183 (1998)). In this case the district court committed four errors, two of which have been conceded by the State: (1) permitting the prosecutor to list prior charges against Reyes to the jury, (2) permitting the prosecutor to elicit testimony that Reyes was both on felon y probation and in violation of the terms of that probation on the ni ght of the incident, (3) deter mining that Marina was unavailable to testify at trial under Idaho Rule of Evidence 804(a)(5)(A), and (4) allowing the prosecutor to argue that the reason Marina did not testify was because she wa s “scared” of Reyes. “Viewing
these errors in relation to the totality of the evidence presen ted at trial,” it is apparent that the State13 continually attempted, by improper and inflammatory means, to p aint Reyes in a negative light to the jury. State v. Moore , 131 Idaho 814, 823, 965 P.2d 174, 183 (1998). “As public offi cers, prosecutors have a duty to ensure that defendants receive fair trials. In carrying out this duty, a prosecutor must ‘guard against a nything that would prejudice th e minds of the jurors, and tend to hinder them from considering on ly the evidence introduced.’ ” State v. Abdullah , 158 Idaho 386, 440, 348 P.3d 1, 55 (2015) (quoting State v. Severson , 147 Idaho 694, 715, 215 P.3d 414, 435 (2009) (internal citations omitted)). “[Prosecutors] should not exert their skill and ingenuity to see how far they can trespass upon the verge of error, because gene rally in so doing they transgress upon the rights of the accused.” State v. Lankford , 162 Idaho 477, 494, 399 P.3d 804, 821 (2017) (quoting State v. Christiansen , 144 Idaho 463, 469, 163 P.3s 1175, 1181 (2007)). In reviewing the trial record, a pattern of unfair tactics by t he team of prosecutors in this case is evident. The prosecutors did not uphold their duty to e nsure that Reyes received a fair trial, and such conduct will not be condoned by this Court. These erro rs, when taken together, were of “such magnitude” that Reyes was denied a fair trial. Id. Because we find that Reyes is entitled to a new trial under the cumulative error doctrine, we need not de termine whether any error individually denied Reyes a fair trial.
IV. C ONCLUSION For the reasons discussed, Reyes’ convictions are vacated, and the case is remanded for a
new trial. Chief Justice BEVAN, Justices , BRODY, MOELLER and BURDICK CONCU R.