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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 34906

STATE OF IDAHO,

Plaintiff-Respondent,

v.

LARRY MATTHEWS HOAK,

Defendant-Appellant.

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2009 Opinion No. 50

Filed: June 29, 2009

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Cheri C. Copsey, District Judge. 

Judgment of conviction for first degree stalking, affirmed.

Molly J. Huskey, State Appellate Public Defender; Eric D. Fredericksen, Deputy 

Appellate Public Defender, Boise, for appellant. 

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

Attorney General, Boise, for respondent. 

______________________________________________

LANSING, Chief Judge

Larry Matthews Hoak appeals from his judgment of conviction for first degree stalking. 

He asserts error in the district court’s decision to permit evidence at trial of other misconduct he 

had committed.

I.

BACKGROUND

Hoak was charged with first degree stalking, Idaho Code §§ 18-7905, 18-7906, for 

stalking his former girlfriend through repeated efforts to contact her by letter and telephone in 

violation of a no-contact order. Before trial, the State filed an Idaho Rule of Evidence 404(b)

notice of intent to offer evidence of misconduct by Hoak other than the charged acts.1 The 

 

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I.R.E. 404(b) states: 
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proffer included evidence of Hoak’s prior convictions for violations of no-contact orders and for 

domestic battery, the victim’s testimony regarding unreported prior episodes of physical abuse 

by Hoak, Hoak’s prior verbal abuse and threats of physical violence against the victim, and his 

alleged prior rape of the victim. Hoak objected, asserting that the alleged prior acts were 

irrelevant and unfairly prejudicial. The district court held that most of this proffered evidence 

was relevant to prove two elements of the stalking offense2--that Hoak’s stalking conduct was 

done maliciously and that it seriously alarmed the victim and was such as would cause a 

reasonable person substantial emotional distress.3 The court gave several limiting instructions, 

however, both during the course of the testimony and in the final instructions to the jury, stating 

that evidence of Hoak’s wrongful acts other than those for which he was on trial was not to be 

considered to prove his character or that he had a disposition to commit crimes, but could be 

 

Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show that the person acted in conformity 

therewith. It may, however, be admissible for other purposes . . . provided that 

the prosecution in a criminal case shall file and serve notice reasonably in 

advance of trial, or during trial if the court excuses pretrial notice on good cause 

shown, of the general nature of any such evidence it intends to introduce at trial.

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The district court did prohibit the State from introducing evidence of Hoak’s prior 

conviction for domestic battery in its case-in-chief. This testimony was later permitted on crossexamination of Hoak as a result of the district court’s conclusion that Hoak’s testimony in direct 

examination opened the door to exploration of the issue on cross-examination. 

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Idaho Code § 18-7906 defines stalking, in part, as follows: 

(1) A person commits the crime of stalking in the second degree if the 

person knowingly and maliciously:

(a) Engages in a course of conduct that seriously alarms, annoys or 

harasses the victim and is such as would cause a reasonable person 

substantial emotional distress; or

(b) Engages in a course of conduct such as would cause a 

reasonable person to be in fear of death or physical injury, or in fear of the 

death or physical injury of a family or household member.

Stalking in the first degree is proven by showing a violation of § 18-7906, together with any one 

of several additional factors listed in I.C. § 18-7905, including that “the actions constituting the 

offense are in violation of a . . . no contact order . . . .” I.C. § 18-7905.
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considered only for the limited purpose of proving his intent or state of mind and the victim’s 

state of mind. 

A jury found Hoak guilty of first degree stalking, with a persistent violator sentence 

enhancement, and the court entered a judgment of conviction. Hoak now appeals, challenging 

only the admission of the evidence of his uncharged wrongful conduct.

II.

ANALYSIS

Hoak asserts that the district court abused its discretion when it admitted evidence of his 

alleged prior misconduct. He argues that although at least some of the evidence was relevant to 

the elements of first degree stalking, it was so unduly prejudicial that it should have been 

excluded in accordance with I.R.E. 403, which provides that “[a]lthough relevant, evidence may 

be excluded if its probative value is substantially outweighed by the danger of unfair 

prejudice . . . .”

After a trial court has determined that “bad acts” evidence is relevant for a permissible 

purpose and therefore not barred by I.R.E. 404(b), and is adequately proven, the court must also 

determine whether the danger of unfair prejudice from the evidence substantially outweighs its 

probative value. I.R.E. 403; State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185, 1188 (2009); State 

v. Parmer, ___ Idaho ___, ___, 207 P.3d 186, 190 (Ct. App. 2009). If the danger of unfair 

prejudice does substantially outweigh the probative value, the evidence must be excluded. I.R.E. 

403; State v. Sheahan, 139 Idaho 267, 275, 77 P.3d 956, 964 (2003); State v. Dragoman, 130 

Idaho 537, 544, 944 P.2d 134, 141 (Ct. App. 1997). A trial court’s decision on this matter is 

reviewed for 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 we 

review an evidentiary ruling for abuse of discretion, we do so through a multi-tiered inquiry, 

examining 1) whether the lower court rightly perceived the issue as one of discretion, 2) whether 

the court acted within the outer boundaries of such discretion and consistently with any legal 

standards applicable to specific choices, and 3) whether the court reached its decision by an 

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

Hauser, 143 Idaho 603, 609, 150 P.3d 296, 302 (Ct. App. 2006). The record shows, and Hoak 

does not appear to contest, that the district court recognized the issue was one of discretion and 

reached its decision through an exercise of reason. The substance of the parties’ dispute centers 
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on whether the court’s decision was within the outer boundaries of its discretion and consistent 

with the applicable legal standards. 

Hoak argues that due to its prejudicial nature, no evidence whatsoever of his prior 

misconduct should have been admitted or, alternately, that even if it was appropriate to admit 

some of the evidence, its cumulative effect was so prejudicial as to deprive him of a fair trial. He 

asserts that the volume, nature and degree of the prior acts created a risk that the jury was led to 

convict on the basis of the alleged past acts, instead of weighing the evidence of the conduct that 

actually formed the basis of the charged offense. 

It must be acknowledged that some of Hoak’s prior acts that were placed in evidence 

were quite unnerving and carried with them a potential for unfair prejudice. They included 

allegations that Hoak had threatened to cut off Hendricks’ legs so she would stay at home, 

threatened to decapitate her, threatened to blow up her house or burn it down with her inside, and 

engaged in sex with her against her will. It was thus necessary for the trial court to evaluate 

whether the danger of unfair prejudice from this evidence substantially outweighed its probative 

value. 

In cases where Idaho appellate courts have found an abuse of the trial court’s discretion 

under Rule 403, generally the evidence in question had little, if any, probative value. See, e.g.,

State v. Bingham, 124 Idaho 698, 700, 864 P.2d 144, 146 (1993); Dragoman, 130 Idaho at 545, 

944 P.2d at 142; State v. Johnson, 119 Idaho 852, 858-59, 810 P.2d 1138, 1144-45 (Ct. App. 

1991); State v. Phillips, 117 Idaho 609, 612, 790 P.2d 390, 393 (Ct. App. 1990). That is not the 

situation here. Instead, the evidence of Hoak’s prior misconduct toward the victim was highly 

probative to show that his subsequent stalking behavior would have alarmed the victim and 

would cause a reasonable person substantial emotional distress. It was also relevant to show that 

the stalking was done “maliciously,” the mens rea element of Hoak’s charge. I.C. § 18-7906. 

The significant probative value of this evidence therefore cannot be so readily outweighed by a 

danger of unfair prejudice as was the challenged evidence in Bingham, Dragoman, Johnson and 

Phillips. While we do not imply that an abuse of discretion will be found only where the 

probative value of the proffered evidence is minimal or non-existent, we do recognize that the 

abuse of discretion standard is a stringent one for an appellant to meet and becomes more 

difficult as the probative value of the evidence in question increases. Here, the district court was 

presented with evidence that was plainly probative on points that the State was required to 
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demonstrate in order to meet its burden of proof. The court had to determine what evidence was 

appropriate and what evidence, if any, was so deeply prejudicial that the risk of unfair prejudice 

substantially outweighed its probative value. The district court responded by allowing most of 

the evidence, while restricting some evidence and instructing the jury several times, including at 

one point in the middle of the victim’s testimony, that the evidence of prior misconduct was to be 

considered only for specified limited purposes. While it is possible that other judges, exercising 

their discretion, would have drawn the line at a different point, we cannot say that the district 

court’s decision here exceeded the boundaries of its discretion.

Although the complained-of evidence carried with it a danger of unfair prejudice, we 

cannot say that the district court abused its discretion in finding that this danger did not 

substantially outweigh the evidence’s considerable probative value on a material issue in the 

case. Accordingly, the judgment of conviction is affirmed.

Judge GUTIERREZ and Judge GRATTON CONCUR.