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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 42760

STATE OF IDAHO,

Plaintiff-Respondent,

v.

THOMAS JOHN KRALOVEC,

Defendant-Appellant.

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2016 Unpublished Opinion No. 410

Filed: March 2, 2016

Stephen W. Kenyon, 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THIS IS AN UNPUBLISHED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. Jason D. Scott, District Judge. 

Judgment of conviction and sentence, affirmed.

Sara B. Thomas, State Appellate Public Defender; Deborah A. Whipple, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgenson, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

HUSKEY, Judge

Thomas John Kralovec appeals from his judgment of conviction for battery on a 

correctional officer/jailer. On appeal, Kralovec alleges there was insufficient evidence to support 

the conviction. He further argues the district court erred in admitting an audio recording of his 

interaction with a law enforcement officer prior to the battery and that the district court abused 

its discretion during sentencing. For the reasons set forth below, we affirm.

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Evidence presented at trial included the following: A Boise City police officer contacted

Kralovec after observing him walking down a busy street during a snowstorm. During this 

interaction, Kralovec began acting belligerently towards the officer and refused to comply with 

the officer’s instructions. Kralovec was eventually arrested for resisting and obstructing arrest 
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and public intoxication. While being transported to the Ada County Jail, Kralovec continued to 

be antagonistic towards the officer. After arriving at the jail, Kralovec was non-compliant and

combative, requiring a number of sheriff’s deputies to assist with the processing and booking 

procedures. Four deputies took turns restraining him while removing socks, shoes, belt, jacket,

and handcuffs so Kralovek could be left alone in the holding cell. This process required that 

Kralovec be placed in a prone position on a bench in the holding cell while the deputies placed 

his legs in a “figure four leg trap.” However, at some point, Kralovec’s right leg got loose from 

the restraint and he kicked his leg out. A microphone was detached from one deputy’s chest. A

second officer sustained a shoulder injury, and he was transported to the hospital for medical 

treatment. Kralovec was charged with battery on a correctional officer/jailer for allegedly

kicking the deputy in the shoulder and causing the injury. 

In a pretrial ruling, the district court granted the State’s motion in limine allowing the 

State to utilize the audio recording of Kralovec’s interaction with the Boise City police officer 

before the arrest and during the time Kralovec was being transported to the jail. This recording 

was published to the jury in conjunction with the testimony of the arresting officer.

In addition, the jury heard testimony from all the law enforcement officers involved in 

the incident and watched the video of the incident at the Ada County Jail. Kralovec was found 

guilty and sentenced to a unified sentence of five years, with one year determinate. The sentence 

was suspended, and he was placed on supervised probation and ordered to serve ninety days in 

the Ada County Jail.

II.

ANALYSIS

Kralovec raises three issues on appeal. First, he argues there was insufficient evidence to 

support a conviction for battery on a correctional officer/jailer. Second, he argues the district 

court abused its discretion in admitting the audio recording of his interaction with the Boise City 

police officer prior to his arrival at the Ada County Jail. Finally, he argues the district court 

abused its discretion at sentencing by not reviewing the trial transcript or jail video prior to 

sentencing.
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A. Sufficiency of the Evidence

On appeal, Kralovec claims his conviction is not supported by sufficient evidence 

because the evidence presented to the jury fails to prove that Kralovec actually kicked the 

deputy, or that if the kick occurred, that Kralovec intended to kick the deputy.

Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt 

will not be overturned on appeal where there is substantial evidence upon which a reasonable 

trier of fact could have found that the prosecution sustained its burden of proving the essential 

elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957 

P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. 

App. 1991). We will not substitute our view for that of the trier of fact as to the credibility of the 

witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn 

from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683, 

684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light 

most favorable to the prosecution. Herrera‐Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson, 

121 Idaho at 104, 822 P.2d at 1001. 

Substantial evidence may exist even when the evidence presented is solely circumstantial 

or when there is conflicting evidence. State v. Severson, 147 Idaho 694, 712, 215 P.3d 414, 432 

(2009); State v. Stevens, 93 Idaho 48, 50-51, 454 P.2d 945, 947-48 (1969). In fact, even when 

circumstantial evidence could be interpreted consistently with a finding of innocence, it will be 

sufficient to uphold a guilty verdict when it also gives rise to reasonable inferences of guilt. 

Severson, 147 Idaho at 712, 215 P.3d at 432; State v. Slawson, 124 Idaho 753, 757, 864 P.2d 

199, 203 (Ct. App. 1993). 

Kralovec’s argument is focused on his claim that there was insufficient evidence for the 

jury to determine that a battery was committed or that Kralovec had the intent to commit the 

battery. The jury was instructed, consistent with Idaho Code § 18-903, that a battery is 

committed when a person: (1) willfully and unlawfully uses force or violence upon the person of 

another; or (2) actually, intentionally and unlawfully strikes another person against the will of the 

other; or (3) unlawfully and intentionally causes bodily harm to an individual.

At trial, the jail video was published to the jury, and the jury heard testimony from five 

sheriff’s deputies that were involved in the incident. Specifically, one deputy testified that 

Kralovec’s foot got loose from the restraint and kicked across his chest, knocking the deputy’s 
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radio loose from the clip holding the radio to the deputy’s shirt. He further testified that after 

Kralovec’s foot moved across his chest, the foot would have impacted with the injured deputy’s 

shoulder. The injured deputy testified that prior to the kick, Kralovec was “thrashing around”

including straining his legs against the restraint trying to get loose. He further testified that he 

both saw and felt the kick. The other deputies testified that the injured deputy was not injured 

before he went into the holding cell, but it was obvious he had been injured while in the cell. 

The jury was presented with substantial evidence upon which it could have found that the 

State sustained its burden of proving the essential elements of the crime of battery beyond a 

reasonable doubt. Specifically, the evidence was sufficient for the jury to conclude that Kralovec 

kicked the officer and intended to do so. We cannot substitute our opinion for that of the jury to 

determine the credibility of the witnesses, the weight to be given to the testimony, and the 

reasonable inferences to be drawn from the evidence. The jury’s verdict that Kralovec was 

guilty of battery on a correctional officer/jailer is supported by substantial evidence and is 

affirmed.

B. Admissibility of Evidence

Also at issue on appeal is Kralovec’s claim that the district court abused its discretion in 

admitting the recording of Kralovec’s interaction with the Boise City police officer prior to the 

arrest and during the transport to the Ada County Jail. The district court, in a pretrial ruling, 

determined the recording was res gestae evidence admissible because it provided context for 

Kralovec’s behavior during the booking process at the jail. In an alternative ruling, the district 

court found the recording to be admissible as evidence of intent pursuant to Idaho Rule of 

Evidence 404(b).

Evidence that is relevant to a material and disputed issue concerning the crime charged is 

generally admissible. State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008). 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. 

I.R.E. 401; Stevens, 146 Idaho at 143, 191 P.3d at 221. Whether a fact is of consequence or 

material is determined by its relationship to the legal theories presented by the parties. State v. 

Johnson, 148 Idaho 664, 671, 227 P.3d 918, 925 (2010). We review questions of relevance de 

novo. State v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993); State v. Aguilar, 154 

Idaho 201, 203, 296 P.3d 407, 409 (Ct. App. 2012). A lower court’s determination under 
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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). 

Res gestae is defined in part as “the events at issue, or other events contemporaneous 

with them.” Black’s Law Dictionary (10th ed. 2014). In State v. Blackstead, 126 Idaho 14, 18, 

878 P.2d 188, 192 (Ct. App. 1994), we stated “res gestae refers to other acts that occur during 

the commission of or in close temporal proximity to the charged offense which must be 

described to ‘complete the story of the crime on trial by placing it in the context of nearby and 

nearly contemporaneous happenings.’ 1 McCORMICK ON EVIDENCE § 190, at 799.” In State 

v. Izatt, 96 Idaho 667, 670, 534 P.2d 1107, 1110 (1975), the Idaho Supreme Court adopted the 

following rule:

The state is entitled to present a full and accurate account of the 

circumstances of the commission of the crime, and if such an account also 

implicates the defendant or defendants in the commission of other crimes for 

which they have not been charged, the evidence is nevertheless admissible. The 

jury is entitled to base its decision upon a full and accurate description of the 

events concerning the whole criminal act, regardless of whether such a description 

also implicates a defendant in other criminal acts.

Of course, this rule is tempered by the limitations of I.R.E. 404(b) that provides:

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, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake 

or accident, 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.

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 another 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. See State v. Pepcorn, 152 Idaho 678, 688-89, 273 P.3d 1271, 1281-82 (2012). 

When determining the admissibility of evidence to which an I.R.E. 404(b) objection has 

been made, the trial court must first determine whether there is sufficient evidence of the other 
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acts that a reasonable jury could believe the conduct actually occurred. I.R.E. 404(b). 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 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). 

The district court did not abuse its discretion in admitting the audio recording. The court 

understood this to be a discretionary decision and applied the proper legal standards in arriving at 

its decision. The district court made specific findings of fact about the recording, including the 

finding that the recording contained repeated threats of physical violence towards the arresting 

officer, as well as detailing Kralovec’s intoxication, belligerence, and refusal to comply with the 

directions of the officer. In addition, the district court correctly determined that the events on the 

recording occurred less than an hour before the incident at the jail and were closely connected 

temporally with the events at the jail, including Kralovec’s refusal to cooperate with the 

deputies’ instructions and the battery on the injured deputy. The district court’s findings are 

supported by the record, and the decision to admit the recording as res gestae evidence was not 

an abuse of discretion because it is a reasoned decision consistent with the applicable legal 

standards.
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 The district court also made an alternative ruling and further determined the recording 

was admissible pursuant to I.R.E. 404(b). The court’s findings reflect that it applied the 

applicable elements of that rule of evidence, and its findings are consistent with the legal 

standards applicable to I.R.E. 404(b). The court’s following findings are supported by the 

record: (1) Kralovec did not deny the recording reflected his interaction with the Boise City 

police officer; (2) the recording was relevant to the issue of intent because it tended to show 

Kralovec’s state of mind towards law enforcement officers, including the lack of cooperation 

with law enforcement directives and Kralovec’s refusal to accept the basis for his arrest, before 

arriving at the jail; and (3) the recording was probative of Kralovec’s intent because it 

demonstrates the repeated threats and refusal to cooperate. Finally, the district court determined 

that while the recording was prejudicial to Kralovec, the probative value was not substantially 

outweighed by unfair prejudice and it was admissible. We conclude that the district court 

engaged in the appropriate analysis, applied the correct legal standards to this decision and 

therefore, the admission of the audio recording was not an abuse of discretion.

C. Sentencing

Prior to sentencing, Kralovec made an oral motion to have the senior judge that presided 

over the jury trial to also preside over the sentencing or, in the alternative, to have the assigned 

judge review an audio recording or transcript of the jury trial prior to sentencing.1 The assigned 

judge denied the request because all necessary information would be included in the PSI or could 

be presented by the parties during sentencing. At the conclusion of the sentencing hearing, 

Kralovec confirmed with the assigned judge that he did not review a transcript of the jury trial or 

the jail recording. However, the district court stated that it reviewed the PSI, the addendum to 

the PSI, and relied on its familiarity with the case due to the pretrial motions and rulings. On 

appeal, Kralovec argues the district court erred by not reviewing the trial transcript or exhibits 

prior to sentencing, and he was prejudiced because the district court did not consider granting a 

 

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The State argues this issue was not preserved for appeal and is subject to the Perry

fundamental error analysis because the extent of Kralovec’s request was limited to the audio of 

the jury trial. However, the court minutes from a hearing held on October 24, 2014, indicate this 

issue was raised before the district court prior to sentencing and thus, preserved for appellate 

review. Kralovec did file two motions to augment the record on appeal to have the transcript 

from this hearing included in the record. Those motions were denied by the Idaho Supreme 

Court.
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withheld judgment because it was not fully aware of the limitations of the State’s evidence for 

the offense.

An appellate review of a sentence is based on an abuse of discretion standard. State v. 

Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal, 

the appellant has the burden to show that it is unreasonable and, thus, a clear abuse of discretion. 

State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such 

an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 

103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it 

appears at the time of sentencing that confinement is necessary to accomplish the primary 

objective of protecting society and to achieve any or all of the related goals of deterrence, 

rehabilitation, or retribution applicable to a given case. State v. Toohill, 103 Idaho 565, 568, 650 

P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed 

an excessively harsh sentence, we conduct an independent review of the record, having regard 

for the nature of the offense, the character of the offender, and the protection of the public 

interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When 

reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver, 

144 Idaho 722, 726, 170 P.3d 387, 391 (2007). 

A district court has broad discretion in determining what evidence is to be admitted at a 

sentencing hearing. State v. Gain, 140 Idaho 170, 175, 90 P.3d 920, 925 (Ct. App. 2004). While 

a sentencing judge is granted latitude to consider a broad range of information when fashioning 

an appropriate sentence for a defendant, the defendant’s right to due process is protected only 

when: (1) the defendant is afforded a “full opportunity” to present favorable evidence; (2) the 

defendant is given a “reasonable opportunity” to examine all materials contained in the 

presentence report; and (3) the defendant is afforded a “full opportunity” to explain and rebut 

adverse evidence. State v. Morgan, 109 Idaho 1040, 1043, 712 P.2d 741, 744 (Ct. App. 1985). 

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. Hedger, 115 Idaho at 600, 768 

P.2d at 1333. 
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The district court did not abuse its discretion at sentencing. The district court recognized 

that it had discretion as to what information it would consider in fashioning an appropriate 

sentence for the defendant and this crime, and it did consider the information presented in 

pretrial motions, the PSI, and the PSI addendum. In addition, the district court informed 

Kralovec that he would have the ability to present evidence at sentencing, if necessary; however, 

Kralovec did not seek to admit evidence during the sentencing hearing. Kralovec has not shown 

that the district court abused its discretion because he was provided a full opportunity to present 

evidence and to review and correct the PSI, as well as to explain or rebut any adverse evidence 

that might have come to the court’s attention. The district court acted within the applicable 

boundaries of discretion and consistently with the applicable legal standards for sentencing. 

III.

CONCLUSION

For the reasons set forth above, we affirm Kralovec’s conviction because there was 

sufficient evidence to support the conviction. In addition, the district court did not abuse its 

discretion in admitting the audio recording as res gestae evidence of the charged offense. 

Finally, the district court did not abuse its discretion at sentencing. We affirm the judgment of 

conviction and sentence.

Chief Judge MELANSON and Judge GRATTON CONCUR.