1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket Nos. 38899/38900

STATE OF IDAHO , Plaintiff-Respondent ,

v.

TARANGO DEFOREST PADILLA , Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) 2012 Unpublished Opinion No. 777

Filed: December 28, 2012
Stephen W. Kenyon, Clerk

THIS I S AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. G. Richard Bevan , District Judge.
Judgments of conviction for two counts of grand theft and being a persistent violator, affirmed

. Sara B. Thomas, State Appellate Public Defender; Diane M. Walker, Deputy Appellate Pu blic Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.

________________________________________________ GUTIERREZ, Judge Tarango Deforest Padilla appeals from his judgments of conviction entered upon jury verdicts finding him guilty of two counts of grand theft and being a persistent violator. Specifically, he contends the district court erred in denying his motion in limin e to exclude certain evidence. For the reasons set forth below, we affirm

. I.
FACTS AND PROCEDURE At approximately 2:30 a.m. one morning in August 2009, Officer Matthew Gonzales, who was on routine patrol driving through an alley, saw Padilla and attem pted to make contact with him. Padilla fled and was subsequently found nearby lying on the ground under a tree. During a search of P adilla , officers found two financial transaction cards (cards) that did not2 belong to Padilla and several ceramic spark pl ug pieces. 1 Officers found additional cards, spark plug pieces, and a f lashlight upon search ing the area where Padilla was pursued and ultimately
detained . Police contacted the owners of two of the cards
, who both confirmed they left their cards in their respective unlocked vehicles the night before and the cards were missing. Both victims denied knowing Padilla or giving him permission to use the cards. Padilla was charged with two counts of grand theft, Idaho Code §§ 18

- 2403( 1),
18

- 2407(1)(b)
, and with being a persistent violator, I. C. § 19

- 2514, in separate cases later
consolidated for trial. Prior to the presentation of any witness testimony on the first day of trial,
Padilla argued on behalf of his motion in limine to prev ent the introduction of evidence relating to the spark plug pieces and the flashlight . He argued the evidence was irrelevant to the grand theft charges and was unfairly prejudicial and potentially inflammatory because the State would
utilize the evidence to impl y he was not only guilty of the charged grand theft s , but also of burglarizing vehicles by using the items to break into the vehicles to obtain the cards. The court denied the motion, allow ing the State to elicit testimony regarding the discovery o f these items at
the time of Padilla’s arrest. The jury found Padilla guilty as charged. He filed a timely notice of appeal in both cases
, and they were consolidated for appeal.
II.
ANALYSIS Padilla contends the district court erred in denying his motion in limine to prevent the State from presenting evidence regarding the spark plug pieces and the flashlight . Specifically, he argues it constituted unfairly prejudicial Idaho Rule of Evidence 404(b) evidence that was not relevant to any permissi ble issue with regard to his charge s of wrongful ly taking or obtaining the
cards. He further asserts the error was not harmless. In admitting the evidence, the district court found the items were not “ bad acts” evidence excludable under Rule 404(b) but part of the res gestae of the crime: [ T he items] don’t go to show some type of independent showing of bad actor to cause the jury to make a determinat ion that Mr. Padilla is somehow being

1 Officer Gonzales testified at trial that from his training, he was aware that ceramic spark plug pieces are often used by criminals to easily break car windows. He testified he did not know of any legitimate reason a person would have such items on his person.3 convicted beca use he’s just a bad egg and does bad things, but rather to show the potentialities of this conduct as it has been alleged.
We review a trial court’s decision to admit evidence for abuse of discretion. State v. Grist , 147 Idaho 49, 51, 205 P.3d 1185, 11 87 (2009) ; State v. Field , 144 Idaho 559, 564, 165 P.3d 273, 278 (2007). Thus, in this review, we examine whether: (1) the trial court correctly perceived the
issue as discretionary; (2) the trial court acted within the outer bounds of its discretion and with applicable legal standards; and (3) the trial court reached its decision through an exercise of

reason. Grist , 147 Idaho at 51, 205 P.3d at 1187. Evidence of other crimes, wrongs, or acts is not admissible to show a defendant’s criminal propensity . I.R.E. 404(b); State v. Sheldon , 145 Idaho 225, 227

- 28, 178 P.3d 28, 30

- 31 (2008) ; State v. Sheahan , 139 Idaho 267, 275, 77 P.3d 956, 964 (2003). However, such evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake, if the prosecution provides notice before presenting the evidence. I.R.E. 404(b). Rule 404(b) does not, however, extend to evidence of

acts that are intrinsic to the charged offense. Sheldon , 145 Idaho at 228, 178 P.3d at 31 ; State v.
Pullin , 152 Idaho 82, 87, 266 P.3d 1187, 1192 (Ct. App. 2011) . Evidence of an act is intrinsic when it and evidence of the crime charged are inextricably intertwined, or both acts are part of a single criminal episode, or it was a necessary preliminary to the crime charged. Sheldon , 145 Idaho at 228, 178 P.3d at 31 ; Pullin , 152 Idaho at 87, 266 P.3d at 1192. Because they require divergent analys es , we address the admission of evidence of the spark plug pieces and the flashlight separately.
A. Spark Plug Pieces Here, even as suming, without deciding, evidence of the ceramic spark plug pieces constitutes Rule 404(b) evidence, 2 we conclude the evidence was nonetheless admissible for a permissible purpose pursuant to the rule. As the rule states, although such evidence is not admissible to prove propensity, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowled ge, identity, or absence of mistake. Once Rule 404(b) evidence is identified, a court must conduct a two

- tiered analysis to determine whether the evidence was inadmissible propensity evidence under Rule 404(b) or

2 It is not clear that it does actually constitute Rule 404(b) evidence giv en the holdings in Sheldon and Pullin discussed above.4 whether the evidence could be admitted fo r some other purpose. Sheldon , 145 Idaho at 229, 178
P.3d at 32; State v. Cross , 132 Idaho 667, 670, 978 P.2d 227, 23 0 (1999). First, the court considers whether the evidence is relevant to a material disputed issue concerning the crime charged. Sheldon , 145 Idaho at 229, 178 P.3d at 32. Second, the court considers whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to
the defendant. Id

. Padilla was charged with theft of the financial transaction cards pursuant to Idaho Code § 18

- 2403(1): A person steals property and commits theft when, with intent to deprive another of property o r to appropriate the same to himself or to a third person, he wrongfully takes , obtains or withholds such property from an owner thereof. (Emphasis added

. ) Padilla’s defe nse at trial was that he found the cards on the ground seconds
before being approached by police, thus implying he had not “ wrongfully” taken them. T he fact

t hat items commonly used to break into vehicles, which is where both victims indicated they had left their cards, were found on Padilla’s person and in his vicinity is re levant to refute this defense. Specifically, evidence of the spark plug pieces supports the State’s assertion that
Padilla planned to break into vehicles and had, in fact, taken the cards from inside the victims’
vehicles as opposed to merely finding them on the ground

. See I.R.E. 401 (evidence is relevant
if it has “ any tendency to make the existence of any fact that is of c onsequence to the determination of the action more probable or less probable”). That neither vehicle had evidence of a forced entry

-- i.e. , there was no evidence showing the spark plug pieces were actually used to
break a window

-- does not render the eviden ce irrelevant. A logical, and permissible, inference is that Padilla planned to utilize the spark plug pieces to gain access to the vehicles, but found their

use unnecessary because the vehic les were unlocked. Thus
, the purpose of this evidence was not

t o prove Padilla is guilty due to his propensity to burgle, but rather to prove Padilla is guilty in
this case because the evidence suggests he wrongfully obtained the cards

. Having found this evidence relevant to a permissible purpose, we examine wheth er , pursuant to Idaho Rule of Evidence 403, the probative value of the evidence is substantially outweighed by the danger of u nfair prejudice to Padilla as he argues on appeal. Padilla argues the evidence was unfairly prejudicial because it painted him as a “ bad guy who is roaming the streets looking for the right car to break the glass with his [spark plug pieces] at any given
moment.” Rule 403 does not , however, offer protection against evidence that is merely5 prejudicial in the sense of being detriment al to the party’ s case ; almost all evidence in a criminal trial is demonstrably admitted to prove the case of the S tate and, thus, resu lts in prejudice to a
defendant

. State v. Carlson
, 134 Idaho 389, 397

- 98, 3 P.3d 67, 75

- 7 6 (Ct. App. 2000); State v. Floyd , 125 Idaho 651, 654, 873 P.2d 905, 908 (Ct. App. 1994). Rather, the rule protects against
evidence that is unfairly prejudicial

-- that is
, if it tends to suggest decision on an improper basis.
Carlson
, 134 Idaho at 397

- 98, 3 P.3d at 75

- 7 6; Floyd , 12 5 Idaho at 654, 873 P.2d at 908. Here, a key component of the State’s case was that Padilla had, in fact, entered the victims’ vehicle s without permission and taken their cards , as opposed to merely finding them on the street as he
contended . Evidence su ggesting he planned to do so by force , and was in fact “ roaming the streets looking for the right car” to break into
, is not unfair and does not suggest a decision on an improper basis where the State was required to prove Padilla wrongfully took the cards . Thus, the court did not err in refusing to exclude evidence of the spark plug pieces

. B. Flashlight Admission of evidence of the flashlight, along with Officer Gonzales’ s testimony that the flashlight was of interest to him because when “ people are out lurking at nigh t” they tend to have flashlights and he has found drugs and paraphernalia in flashlights, is more troubling. Although there may be some relevance akin to that attached to the spark plug pieces , it is significantly

more diminished because flashlights have numerous innocuous purposes. However, even assuming the evidence was improperly admitted, it was harmless error. 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 the alleged error complained of in the present case was harmless. See State v. Lopez , 141 Idaho 575, 578, 114 P.3d 133, 136 (C t. App. 2005). To hold an error harmless, this Court must declare a bel ief, beyond a reasonable doubt, ther e was no reasonable possibility the evidence complained of contributed to the
conviction. Sheldon , 145 Idaho at 230, 178 P.2d at 33

. The State pres ented clear evidence Padilla had the cards and pieces of broken spark plugs in his possession when he was approached by police

-- a fact Padilla did not dispute . Padilla’s
defense
, that he found these items on the ground and picked them up because he was in toxicated
and “ curious” and then ran only because the officer in his marked patrol car “ startled” him
, was not particularly credible

-- especially given that Padilla was carrying both items and Officer6 Gonzales testified he knew of no reason for a person to carry broken spark plug pieces in their pocket other than to break into vehicle s (where the victims stated they had left their cards) . In light of the evidence of Padilla’s possession of the cards and spark plug pieces, the addition al testimony regarding the flashlight was not particularly damaging to Padilla because, as we pointed out above, flashlights are largely innocuous items. Accordingly, we are satisfied beyond
a reasonable doubt that the evidence did not contribute to the verdict and that, even w ithout evidence of the flashlight, the jury would have found Padilla guilty of grand theft of the cards found in his possession.
III.
CONCLUSION
Padilla fail ed to establish the district court abused its discretion in admitting evidence of the spark pl ug pieces

. E ven if the ev idence regarding the flashlight was not relevant to a permissible purpose, we conclude its admission was harmless error given the evidence of Padilla’s guilt and his relatively weak defense . Padilla’s judgments of conviction entered upon jury verdicts finding him guilty of two counts of grand theft and being a persistent violator are
affirmed. Chief Judge GRATTON and Judge MELANSON CONCUR.