1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 44275

STATE OF IDAHO ,

Plaintiff

- Respondent ,

v.

CLARK JACKSON CLEVELAND ,

Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) 2017 Unpublished Opinion No. 535

Filed: August 2, 2017

Karel A. Lehrman , Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Samuel A. Hoagland , District Judge.

Judgment of conviction for aggravated battery, affirmed

. Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis , Deputy Appellate Public Defender, Boise, for appellant.

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

________________________________________________ GRATTON, Chief Judge Clark Jackson Cleveland appeals from his judgment of conviction entered upon a jury finding him guilty of aggravated battery, Idaho Code § § 18

- 903(A), 18

- 907(a)(b), 19

- 2520F

. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND
While an inmate at the Idaho State Correctional Institution, Cleveland was accused of attacking a nother inmate. The victim stated that Cleveland threw hot water on him , causing first degree and second d egree burns, and that Cleveland beat him and stabbed him with tweezers. In
addition to the burns, the victim ’s injuries included a hematoma, puncture wounds, injury to his carotid artery, and facial fractures. The S tate charged Cleveland with aggravated battery. A jury2 found Cleveland guilty and the tr i a l court imposed a unified fifteen

- year sentence, with ten years
determinate

. Cleveland timely app eal s

. II.

ANALYSIS Cleveland claims that the district court erred by allowing, over objection, hearsay evidence regarding Cleveland’s use of the microwave prior to the attack

. Cleveland argues that

the district court failed to exercise reason in allowing the testimony by holding that Cleveland had “opened the door ” to allow the testimony. The trial court has broad discretion in determining the admissibility of testimonial evidence. State v. Smith , 117 Idaho 225, 232, 786
P.2d 1127, 11 34 (1990). A decision to admit or deny such evidence will not be disturbed on appeal absent a clear showing of abuse of that discretion. Id. When a trial court’s discretionary decision is reviewed on appeal, the appellate court

conducts a multi

- tiered inquiry to determine whether the lower court correctly perceived the issue as one of discretion, acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it, and reached its decisio n by an

exercise of reason. State v. Hedger , 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

A detective with the Ada County Sheriff’s Office conducted the investigation of the

incident

. The detective testified that he found blood on the toilet, the fl oor, and the wall of the

bathroom

. The detective also found a white plastic cup in the bathroom. The detective testified

that he had been g iven information from an inmate who indicat ed that Cleveland had been carrying th e cup. The d etective testified th at he reviewed a security video s how ing the victim and Cleveland being in the bathroom at the same time for about a minute . Further, the detective
attested, Cleveland’s cellmate was in the bath room with them for about eight seconds. The

detective also stated that an inmate ( H.H. ) could be seen walking over to the bathroom

, looking

inside

, and eventually going into the shower across the hall. During cross

- examination , Cleveland’s trial counsel inquired of the detective:
Q. Did you c ome across any witnesses that

-- or spoke to anyone that may have saw Cleveland use the microwave? A. Yes. Q. Was that [H.H.] ? A. Yes.

Thereafter , the State inquired of the d etective:3 Q. Counsel asked you about [H.H.] and the use of the microwave. A. Correct. Q. What did he say about Cleveland’s use of the microwave?
At that time, Cleveland’s trial counsel objected on the ground of hearsay. The court opined , “You opened the door, counsel. Overruled.” The d etective then testified as follows:
[H.H.] told me that he knew that Mr. Cleveland was heating up something in the microwave. That he knew it was in the white cup. He told me that Cleveland said he was heating up oatmeal and [H.H.] assumed it was water being heated up. And that he witnessed Mr. Cleveland carry the tumbler from the top of the microwave out of the day room.

The detective further testified that this occurred around the time that Cleveland entered the

bathroom. We agree with the State that Cleveland’s counsel opened the door to the substance of

the conversation quoted above. Counsel’s question was not simply whether a conversation
occurred, but about Cleveland’s use of the microwave. In addition, any error in allowing the detective’s testimony as to his conversation with

H.H. was ha rmless. Error is not reversible unless it is prejudicial. State v. Stoddard , 105 Idaho
169, 171, 667 P.2d 272, 274 (Ct. App. 1983). With limited exceptions, even constitutional error is not necessarily prejudicial error. Id. Thus, we examine whether t he alleged 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).
Here, the victim testified that it was Cleveland who attacked him and threw boiling water

on him while he was in the bathroom. 1 Cleveland argues that any error in admitting the detective’s testimony is not harmless because the victim was the only eyewitness and there was
no DNA evidence. However, the victim ’s testimony was corroborated by a video depicting activity outside the bathroom where the attack occurred. The detective testified that t he video shows Cleveland going into the bathroom carrying a white container. The detective testified t hat

in the cou rse of the investigation, a white plastic cup was discovered on the floor in the bathroom

where the victim was attacked . Further, the detective attested that he had been given information

from an inmate who indicated that Clevel and had been carrying that cup. The detective further

attested the video shows a bout one minute after Cleveland had entered the bathroom

, Cleveland

can be seen hurrying out of the bathroom

, no longer carrying the cup. Thereafter, the visibly

1 The victim refu sed to testify at trial; however, his preliminary hearing testi mony was admitted.4 injured victim is seen leaving the bat hroom. Further, medical personnel documented the victim ’s injuries , including burn marks, which were consistent with the attack as described. Photographs of those injuries were presented to the jury. Based on the evidence presented, w e are convinced beyond a reasonable doubt that any reference by the detective to H .H. ’s account of Cleveland’s microwave use did not contribute to

the verdict. Based upon the detective’s explanation of the security video, the victim’s own testimony, and the victim’s docu mented injuries, t he jury was presented with convincing

evidence that Cleveland carried a cup of hot water into the bathroom . Thus, it follows that t he detective’s testimony in regard to Cleveland’s microwave use would have little to no effect. Significa ntly, defense counsel had already elicited testimony from the detective that H .H.

indicated he had seen Cleveland use the microwave. The district court did not commit reversible error by admitting the detective’s testimony as to his conversation with H .H. regarding

Cleveland’s microwave use

. III.

CONCLUSION The district court did not error in allowing the testimony

. Cleveland’s judgment of conviction for aggravated battery is affirmed. Judge GUTIERREZ and Judge HUSKEY CONCUR

.