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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 47324

STATE OF IDAHO,

 Plaintiff-Respondent,

v.

MICHAEL THERON HAYES,

 Defendant-Appellant.

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Boise, December 2019 Term

Opinion Filed: March 20, 2020

Karel A. Lehrman, Clerk 

Appeal from the District Court of the Fourth Judicial District of the State of 

Idaho, Ada County. Samuel A. Hoagland, District Judge.

The district court’s judgment of conviction is affirmed.

Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Ben 

P. McGreevy argued. 

Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Kenneth K. 

Jorgensen argued.

_____________________

BRODY, Justice.

Michael Theron Hayes appeals his judgment of conviction from Ada County district 

court. A jury convicted Hayes of felony battery on a correctional officer. Hayes appealed his 

judgment of conviction on three grounds: (1) the district court erred by failing to issue subpoenas 

for two medical professionals; (2) the district court abused its discretion by allowing the State to 

inquire into prior instances of Hayes’ conduct towards correctional officers; and (3) the district 

court abused its discretion by denying Hayes’ motion for a new trial. The Court of Appeals 

reversed the district court’s order denying Hayes’ requests for subpoenas, and held that the 

district court abused its discretion by allowing the State to inquire into prior instances of Hayes’ 

conduct. Accordingly, the Court of Appeals vacated the district court’s judgment of conviction 

and remanded the case for a new trial. This Court granted the State’s timely petition for review. 

For the reasons stated below, we affirm Hayes’ judgment of conviction.
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I. FACTUAL AND PROCEDURAL BACKGROUND

Hayes is an inmate housed at the Idaho Maximum Security Institution (IMSI). On 

November 10, 2015, Correctional Officer Rachel Nettles escorted Hayes to an infraction hearing 

for alleged misconduct at IMSI. During the infraction hearing, Hayes allegedly became 

aggressive and non-compliant with the correctional officers. After attempts to calm Hayes failed, 

Nettles and Correctional Officer Charles Johannessen attempted to secure Hayes against a nearby 

wall. Hayes allegedly resisted, kicking Nettles in the shin and grabbing Johannessen in the groin. 

The State charged Hayes with two counts of felony battery on a correctional officer pursuant to 

Idaho Code sections 18-915(2), 18-901, and 18-903. The State also filed a persistent violator 

sentencing enhancement pursuant to Idaho Code section 19-2514. 

Hayes pleaded not guilty to the battery charges, and chose to represent himself. When 

Hayes chose to represent himself, the district court specifically advised Hayes about the 

advantages of having counsel for discovery and witness investigation. Nevertheless, Hayes was 

staunch in his desire to represent himself. After the district court ruled that Hayes would 

represent himself, it appointed Ada County public defender Craig A. Steveley as Hayes’ standby 

counsel. 

Prior to trial, Hayes requested subpoenas for Dr. April Dawson and nurse Kevin Kaae, 

who were both contracted to provide care to inmates at IMSI through Corizon Correctional 

Healthcare. In support of his subpoena requests, Hayes asserted that Dawson and Kaae would 

testify at trial to the injuries he allegedly received from the correctional officers’ use of force in 

the November 10, 2015 altercation. Specifically, Hayes asserted that Dawson and Kaae would 

testify that: (1) after the November 10, 2015 altercation, multiple ultrasounds revealed blood in 

Hayes’ urine; (2) blood was visible in Hayes’ urine to the naked eye after the November 10, 

2015 altercation; (3) Hayes’ subsequent medical tests reveal that no disease or kidney stones 

caused blood to appear in Hayes’ urine; and (4) Hayes’ subsequent medical tests demonstrate the 

blood in his urine was caused by the November 10, 2015 altercation with the correctional 

officers.

At a pretrial hearing, the district court denied Hayes’ subpoena requests on two grounds. 

First, the district court ruled that the subpoena requests were untimely. Second, the district court 

concluded that, even considering the merits of Hayes’ subpoena requests, the district court did 

“not find that any evidence that might be offered by Dr. [Dawson] or [nurse Kaae] is relevant to 
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the question of whether or not the defendant committed this crime. Therefore, they would not be 

allowed [to testify] under any circumstance.” Later in the same hearing, Hayes requested to be 

represented by counsel. Hayes requested counsel just three days before his trial was scheduled to 

begin. The district court subsequently appointed Stevelely—who was previously serving as 

standby counsel—to represent him. As a result, Hayes’ trial date was pushed back for two 

months so that Steveley could prepare a defense.

Prior to the district court’s denial of Hayes’ subpoena requests, the State filed a motion in 

limine seeking to prevent Hayes from asking the correctional officers any questions regarding 

the Idaho Department of Correction’s (IDOC) guidelines for disciplinary and infraction hearings. 

The State argued that questions regarding IDOC’s guidelines for conducting infraction hearings 

were irrelevant to whether Hayes committed battery upon the two correctional officers. The 

district court agreed that IDOC’s guidelines would not be relevant to the question of battery, and 

granted the State’s motion in limine. 

At Hayes’ jury trial, he testified on his own behalf. On direct examination, he testified 

that he was the victim of the November 10, 2015 altercation. Hayes alleged that, immediately 

after the November 10, 2015 infraction hearing, he was battered by the correctional officers 

without provocation. Hayes maintained a position of innocence, asserting that he never battered 

the correctional officers. Hayes further testified that because of the correctional officers’ battery, 

he sustained injuries to his back, shoulder, wrists, and hip. Hayes also testified that the injuries 

he sustained caused him to urinate blood. Hayes did not make a self-defense claim. 

On cross-examination, the State inquired about Hayes’ conduct toward other correctional 

officers and inmates at IMSI. Hayes testified that he was always respectful towards other inmates 

and correctional officers. Outside the presence of the jury, the State requested that it be allowed 

to question Hayes on his prior instances of conduct towards inmates and correctional officers. 

Specifically, the State proffered approximately ten instances where Hayes threatened, verbally 

abused, and disrespected other inmates and correctional officers. Hayes objected to the line of 

questioning, arguing that the testimony would be unfairly prejudicial under Idaho Rule of 

Evidence 403 and improper character evidence under Rule 404(b). The district court asked both 

parties which rules of evidence applied. The State argued that the evidence was relevant, and that 

the evidence was admissible under Rule 608(b) as evidence of Hayes’ character for 
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untruthfulness. Hayes argued that Rules 403, 404(b), and 608(b) all applied, making the 

testimony inadmissible. 

The district court found that the evidence was relevant and not unfairly prejudicial, and 

concluded that the testimony was relevant to Hayes’ character for truthfulness under Rule 

608(b). Thus, the district court allowed the State to inquire into Hayes’ prior instances of 

conduct. On the witness stand, Hayes denied that any of these prior instances of conduct 

occurred. Later in the trial, the district court issued a limiting instruction to the jury regarding

Hayes’ testimony on cross-examination. The limiting instruction informed the jury that this 

testimony was admitted for the limited purpose of Hayes’ credibility, and that the evidence 

should not be considered for any other purpose.

After deliberations, the jury found Hayes guilty of one count of battery—kicking officer 

Nettles in the shin during the November 10, 2015 altercation. Seconds after the clerk delivered 

the verdict, Hayes interrupted the district court proceeding, and announced, “Craig Steveley is 

fired and the defendant is now in pro se representation.” Hayes was subsequently removed from 

the courtroom for his behavior, and ultimately was allowed to discharge Steveley and proceed 

pro se. The State later voluntarily dismissed the persistent violator sentencing enhancement. 

Months after the verdict, but prior to sentencing, Hayes again changed his mind on pro se 

representation and moved for appointment of conflict counsel. Hayes, through conflict counsel, 

filed a motion for a new trial. In support of the motion, Hayes argued that the district court erred 

in granting the State’s motion in limine to prohibit any questions related to IDOC’s guidelines 

for conducting infraction hearings. Hayes asserted that the guidelines were relevant to whether 

the correctional officers had a “motive to lie” about their behavior during the altercation, and 

whether they complied with such guidelines. The district court subsequently denied Hayes’ 

motion for a new trial. In denying the motion, the district court found that questions regarding 

IDOC’s infraction hearing guidelines were irrelevant to the issues at trial. Further, the district 

court found that even if the guidelines were relevant, the testimony would be inadmissible as “a 

waste of time, confusing the issues, and misleading the jury” under I.R.E. 403. 

The district court imposed a fixed determinate sentence of two and one half-years to be 

served consecutively with the sentence Hayes is currently serving. Hayes timely appealed the 

judgment of conviction. On appeal, the Court of Appeals reversed the district court’s order 

denying Hayes’ requests for subpoenas, and held that the district court abused its discretion by 
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allowing the State to inquire into prior instances of Hayes’ conduct. Accordingly, the Court of 

Appeals vacated the judgment of conviction and remanded the case for a new trial. The State 

filed a timely petition for review. This Court subsequently granted that petition. We affirm the 

judgment of conviction.

II. STANDARD OF REVIEW

“In cases that come before this Court on a petition for review of a Court of Appeals 

decision, this Court gives serious consideration to the views of the Court of Appeals, but directly 

reviews the decision of the lower court.” State v. Garcia-Rodriguez, 162 Idaho 271, 274, 396 

P.3d 700, 703 (2017) (quoting State v. Oliver, 144 Idaho 722, 724, 170 P.3d 387, 389 (2007)).

“This Court thus acts as if the case were on direct appeal from the district court.” Id. (quoting 

State v. James, 148 Idaho 574, 576, 225 P.3d 1169, 1171 (2010)).

III. ANALYSIS

A. The district court did not err in declining to issue subpoenas for Dawson and Kaae

because Hayes’ request was untimely.

On appeal, Hayes argues that the district court erred when it declined to issue subpoenas 

directing Dr. Dawson and nurse Kaae to testify for Hayes at trial. Specifically, Hayes attacks the 

district court’s conclusion that Dawson and Kaae’s testimony would not be relevant to the issues 

in Hayes’ case. Hayes argues that testimony regarding evidence of blood in his urine and medical 

tests that ruled out disease and kidney stones were relevant because they supported his assertion 

that he sustained injuries after the officers battered him. Thus, Hayes asserts that the evidence is 

relevant to support his innocence defense. 

1. Hayes’ claim of error is not moot.

As a preliminary matter, we address the State’s mootness argument. The State argues that 

Hayes’ pro se subpoena requests for Dawson and Kaae to testify became moot when he elected 

to be represented by counsel. The State asserts that decisions regarding what witnesses to call at 

trial are for counsel, and that Hayes relinquished this decision when he elected to be represented 

by counsel. According to the State, once Hayes elected to be represented by counsel he “no 

longer had a legally cognizable interest in issuing subpoenas pro se.” We disagree. 

Whether an appeal is moot is a question of jurisdiction and may be raised at any time. 

Podsaid v. State Outfitters & Guides Licensing Bd., 159 Idaho 70, 73, 356 P.3d 363, 366 (2015)

(citing Arambarri v. Armstrong, 152 Idaho 734, 738, 274 P.3d 1249, 1253 (2012)). A case is 

moot “if the party lacks a legally cognizable interest in the outcome or if it does not present a 
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real and substantial controversy that is capable of being concluded through judicial decree or 

specific relief.” Smith v. Smith, 160 Idaho 778, 785, 379 P.3d 1048, 1055 (2016) (quoting 

Podsaid, 159 Idaho at 73, 356 P.3d at 366) (internal quotation marks omitted). 

Whether Hayes was pro se or represented by counsel, he still had a legally cognizable 

interest in which witnesses are called at his trial. Facing two counts of battery and a persistent 

violator sentencing enhancement, Hayes had a clear interest in the outcome of his trial because

his own liberty was at stake. The State curiously argues that the district court’s denial of the 

subpoena request did not “in any way [affect Steveley’s] (Hayes’ appointed counsel) choice of 

witnesses.” This statement improperly frames the issue. The inquiry is not whether Steveley was 

limited in his choice of witnesses, but rather whether Hayes has a legally cognizable interest in 

the outcome of his trial. Even if the choice of witnesses was solely within Steveley’s control, 

Hayes’ interest in the outcome of the trial did not vanish. Importantly, there was no reason for 

Steveley to assume that the district court’s pretrial rulings on the motions brought by Hayes were 

no longer in effect by virtue of his appointment to represent Hayes. To be clear, there is no court 

rule or case law that would have prevented Steveley from requesting the subpoenas again after 

assuming representation. In fact, Steveley could have moved the district court to issue the 

subpoenas again after assuming representation. Idaho Criminal Rule 17—which governs 

subpoena requests—places no limits on the amount of times a party may seek to subpoena

witnesses. See I.C.R. 17. However, the mere fact that Steveley could have sought the subpoenas 

again does not render this issue moot for Hayes. Additionally, the denial of Hayes’ subpoena 

request is capable of being remedied through judicial relief, as demonstrated by the Court of 

Appeals reversing the district court’s decision. Thus, this issue is not moot. 

2. Hayes’ subpoena request was untimely.

On appeal, Hayes’ sole argument regarding his subpoena request is that the district court 

erred when it concluded the request was irrelevant. Crucially, however, Hayes does not challenge 

the district court’s conclusion that his subpoena request was untimely. At a pretrial hearing on 

November 1, 2016, the district court instructed Hayes that any subpoena requests needed to be 

submitted in writing to the court by November 22, 2016, so that the court would have time to 

examine and rule on the requests at a pretrial conference set for December 2, 2016. The court 

minutes from the November 1, 2016 hearing reflect this instruction: “[r]equest for subpoena, 

defendant needs to prepare a list of witnesses identifies [sic] who it has [sic] relevant evidence, a 
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brief summary of the relevant information, [and it] needs to be filed by 11/22 and [the court] will 

decide on 12/2 who will be [subpoenaed].”

Hayes did not file his request for subpoenas until December 2, 2016. Later that same day, 

at pretrial conference, Hayes blamed a November 17, 2016 closure of the prison law library for 

delaying the filing of his subpoena requests. The district court ruled on Hayes’ subpoena requests 

a week later at another pretrial conference. The district court found that Hayes’ witness list and 

subpoena requests were “supposed to have [been] provided to the court and counsel by the 

hearing on [November] 22nd. Again, that’s information that should have been provided to the 

parties and the request for subpoenas in all matters in that regard are denied for lack of 

timeliness.” After denying Hayes’ subpoena request due to untimeliness, the district court 

continued to deny the subpoena requests on the merits, finding that the proposed testimony they 

sought was irrelevant to the issues at trial. Thus, the record indicates that the district court denied 

Hayes’ subpoena requests on two independent grounds: timeliness and relevance. 

Pro se litigants are held to the same standards and rules as those represented by an 

attorney. Suitts v. Nix, 141 Idaho 706, 709, 117 P.3d 120, 123 (2005). “When a decision is based 

upon alternate grounds, the fact that one of the grounds may be in error is of no consequence and 

may be disregarded if the judgment can be sustained upon one of the other grounds.” Doe v. Doe, 

159 Idaho 461, 464, 362 P.3d 536, 539 (2015) (quoting Andersen v. Prof’l Escrow Servs., Inc., 

141 Idaho 743, 746, 118 P.3d 75, 78 (2005)) (internal quotation marks omitted). Hayes does not 

challenge the district court’s timeliness ruling on appeal. Because Hayes provides no argument 

that the district court erred in denying his subpoena request for lack of timeliness, we affirm the 

district court’s denial of the subpoena request without reaching the merits of Hayes’ relevance 

arguments.

At oral argument, Hayes argued that, despite not challenging the district court’s 

timeliness ruling, State v. DuValt, 131 Idaho 550, 961 P.2d 641 (1998), allows this Court to

consider the merits of the district court’s alternative relevance ruling. We disagree. In DuValt,

this Court explained that issues not raised in the trial court may not be raised for the first time on 

appeal. 131 Idaho at 554, 961 P.2d at 644. The Court further explained that an exception to this 

rule exists when the issue was argued to or decided by the trial court. Id. DuValt, however, does 

not speak to this Court’s precedent regarding alternative holdings. See id. Whether an issue can 

be raised on appeal has nothing to do with whether there were alternative grounds for a ruling in 
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the trial court. Here, the State has not asserted that the timeliness issue was raised for the first 

time on appeal. To the contrary, Hayes argues that the State failed to raise a timeliness argument 

in its briefing. Hayes, however, bore the burden of demonstrating error in the lower court. State 

v. Wallace, 98 Idaho 318, 320, 563 P.2d 42, 44 (1977). The district court’s decision was based on 

alternative grounds, and as such, Hayes bore the burden of demonstrating error in both grounds. 

Doe, 159 Idaho at 464, 362 P.3d at 539. Hayes failed to challenge the district court’s timeliness 

ruling. Therefore, Hayes failed to meet his burden, and we affirm the district court. 

B. The district court did not err in admitting evidence of Hayes’ prior instances of 

conduct.

Hayes contends that the district court abused its discretion by allowing the State to 

inquire into past instances of Hayes’ conduct on cross-examination. Hayes testified in his own 

defense at trial. During his direct examination, Hayes limited his testimony to his recollection of 

the November 10, 2015 altercation and resulting injuries. On cross-examination, the prosecutor 

immediately inquired into Hayes’ prior conduct at IMSI. Specifically, the prosecutor asked 

Hayes about his conduct towards other inmates and guards, asking: “You’re always respectful of 

other inmates?” and “you are respectful of the guards all the time out at [IMSI]?” Hayes 

responded “yes” to both questions. The prosecutor then asked to approach the bench and speak 

outside the presence of the jury. 

Outside the presence of the jury, the prosecutor notified the district court that the State 

intended to inquire about prior instances of Hayes’ conduct that contradicted his testimony. In 

support of this inquiry, the prosecutor asserted: 

“[T]he State elicited testimony from the defendant that he is respectful at all times 

to other guards. He’s also previously testified that he’s been in prison for 12 

years. And in addition, has on direct portrayed himself as a disabled, docile, 

passive victim of this situation that happened on November 10th.” 

The prosecutor proffered approximately ten instances of prior conduct where Hayes threatened, 

verbally abused, and disrespected other inmates and correctional officers. Hayes objected to the 

line of questioning, arguing that the inquiry should not be allowed under I.R.E. 403 and 404(b). 

Additionally, Hayes argued that he did not open the door to this testimony, stating: “we never 

went into that. We never said this guy was a saint. We never put on any evidence that he’s a 

good character.” 

Before ruling on the evidence, the district court asked the parties what rules of evidence 

applied. The State argued that 608(b) applied, and Hayes argued that I.R.E. 403, 404(b), and 
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608(b) all applied. The district court found that I.R.E. 403 is always applicable, and that I.R.E. 

404(b) did not apply to the inquiry. Specifically, regarding I.R.E. 403, the district court found 

that the proposed testimony was not unfairly prejudicial. Further, the district court found that the 

proposed testimony was probative to the question of whether Hayes was truthful on the witness 

stand. Regarding I.R.E. 608(b), the district court stated that “the rule at issue is the question of 

attacking his credibility. That’s a 608 question.” Thus, the district court determined that the 

State’s inquiry into Hayes’ prior instances of conduct on cross-examination was (1) relevant, and 

(2) permissible under I.R.E. 608(b).

On appeal, Hayes argues that the district court erred in concluding that I.R.E. 608(b) 

applied to allow the State to inquire into these prior instances. Hayes argues that the prior 

instances of conduct do not demonstrate character for truthfulness, but rather are character 

evidence of respectfulness, for which I.R.E. 608(b) does not permit inquiry. Hayes further argues 

that, even if the prior conduct was relevant to Hayes’ character for untruthfulness, the danger of 

unfair prejudice substantially outweighed any probative value of the prior conduct. Notably, 

Hayes does not challenge the district court’s 404(b) ruling on appeal.

1. Hayes’ Rule 608(b) challenge. 

When reviewing the trial court’s evidentiary rulings, this Court applies an abuse of 

discretion standard. State v. Jones, 160 Idaho 449, 450, 375 P.3d 279, 280 (2016). To determine 

if a trial court abused its discretion, this Court considers whether the trial court (1) perceived the 

issue as one of discretion, (2) acted within the outer boundaries of that discretion, (3) acted 

consistently with the legal standards applicable to the specific choices available to it, and (4) 

reached its decision by an exercise of reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863, 

421 P.3d 187, 195 (2018).

At the time of Hayes’ trial, I.R.E. 608(b) provided: 

Specific instances of the conduct of a witness, for the purpose of attacking or 

supporting the credibility, of the witness, other than conviction of crime as 

provided in Rule 609, may not be proved by extrinsic evidence. They may, 

however, in the discretion of the court, if probative of truthfulness or 

untruthfulness, be inquired into on cross-examination of the witness concerning

(1) the character of the witness for truthfulness or untruthfulness, or (2) the 

character for truthfulness or untruthfulness of another witness as to which 

character the witness being cross-examined has testified.

I.R.E. 608(b) (2017) (emphasis added). 
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Before addressing whether the district court correctly applied I.R.E. 608(b), it is 

important to frame Hayes’ objection in the larger context of evidence law. It is well understood 

that all “relevant evidence is admissible, unless otherwise provided by the Idaho Rules of 

Evidence or other rules for the courts of Idaho.” State v. Ehrlick, 158 Idaho 900, 926, 354 P.3d 

462, 488 (2015). The burden is on the opponent of the evidence to establish that relevant 

evidence is otherwise inadmissible. Soria v. Sierra Pac. Airlines, Inc., 111 Idaho 594, 617–18, 

726 P.2d 706, 729–30 (1986) (“Having offered relevant evidence for a permissible purpose, the 

burden is on its opponent (not on the proponent) to show that prejudice will result from its 

admission.”). Further, I.R.E. 608(b) is a rule of inclusion, rather than an exclusionary rule. Thus, 

even if the district court did not apply I.R.E. 608(b) correctly, the evidence would still be 

admissible if it was relevant unless there is another rule that requires its exclusion. 

Here, the district court determined that the proffered cross-examination was relevant and

not unfairly prejudicial under I.R.E. 403, and not improper character evidence under I.R.E. 

404(b). Thus, even if Hayes shows error in the district court’s application of I.R.E. 608(b), he 

still must demonstrate that the district court’s I.R.E. 403 or 404(b) analysis was erroneous. Hayes 

does not challenge the district court’s ruling that I.R.E. 404(b) did not apply. Thus, Hayes 

waived this issue on appeal. See Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 1152 

(2010). Because Hayes failed to demonstrate an alternative basis to exclude the evidence on 

cross-examination, we cannot hold that the district court erred in allowing the questions on crossexamination. 

Turning to the district court’s application of I.R.E. 608(b), the rule allows a witness to be 

questioned about prior instances of conduct on cross-examination. I.R.E.608(b). However, the 

rule is clear that the inquiry is limited to “the character of the witness for truthfulness or 

untruthfulness.” Id. Here, Hayes contends that the specific instances of conduct raised on crossexamination were not relevant to his character for truthfulness or untruthfulness. The prior 

conduct, according to Hayes, had no probative value on his propensity to lie or his veracity. 

Rather, Hayes argues that the prior conduct contradicts his earlier testimony on crossexamination that he was always respectful to other guards and inmates. Essentially, Hayes argues 

that prior conduct exhibited a character trait of disrespect instead of character for untruthfulness. 

This Court has not specifically addressed whether extrinsic evidence demonstrating a 

contradiction in the witness’s testimony is probative to character for truthfulness or 
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untruthfulness. In analyzing what extrinsic evidence is probative of character for truthfulness or 

untruthfulness, Idaho precedent is inconsistent. See State v. Araiza, 124 Idaho 82, 90, 856 P.2d 

872, 880 (1993) (holding that the district court did not abuse its discretion in excluding extrinsic 

evidence of a witness perjuring himself in a prior trial under I.R.E. 608(b)); see also State v. 

Bergerud, 155 Idaho 705, 710, 316 P.3d 117, 122 (Ct. App. 2013) (holding that extrinsic 

evidence of a witness lying to police in the past was probative of a witness’s character for 

untruthfulness under I.R.E. 608(b)). Some decisions appear to limit character of untruthfulness to 

past instances of lying. See Bergerud, 155 Idaho at 710, 316 P.3d at 122. Others appear to 

deviate from that standard. For example, in Araiza, this Court upheld a district court’s decision to 

prevent cross-examination of a prior instance of perjury at a previous trial. See Araiza, 124 Idaho 

at 90, 856 P.2d at 880. Further, in State v. Guinn, 114 Idaho 30, 39, 752 P.2d 632, 641 (Ct. App. 

1988), the Court of Appeals refused to “set down a hard and fast rule of admissibility” between 

contradictory testimony and character for untruthfulness for I.R.E. 608(b). Id. Thus, some Idaho 

decisions consider extrinsic evidence of a witness’s character for truthfulness or untruthfulness to 

be prior conduct of lying or dishonesty, while others do not employ such a strict standard. 

However, Idaho case law distinguishes between evidence of character for untruthfulness 

and impeachment evidence. For example, in Pierson v. Brooks, 115 Idaho 529, 533, 768 P.2d 

792, 796 (Ct. App. 1989), the Court of Appeals distinguishes between impeachment by 

contradiction and reputation and opinion evidence of a witness’s character for truthfulness or 

untruthfulness. Id. The court held that “cross-examination which attacks the witness’s testimony, 

but which contains no personal attack on the witness’s veracity, does not trigger a right to 

present opinion testimony on the witness’s character for truthfulness.” Other jurisdictions draw 

similar distinctions between evidence of a witness’s character for truthfulness or untruthfulness 

and impeaching a witness’s credibility through contradiction, bias, or undue influence. See 

Garner v. State, 264 P.3d 811, 817–18 (Wyo. 2011); State v. Corona, 436 P.3d 174, 179 (Utah 

Ct. App. 2018).

Given that Idaho’s precedent on 608(b) is unclear, an examination of the rule’s federal 

counterpart is appropriate. Federal Rule of Evidence 608(b) is similar to Idaho’s rule. See Fed. R. 

Evid. 608(b). A leading commentator on the federal rules has explained that the rule allows 

evidence of a witness’ general character for veracity, not whether specific testimony is correct: 
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[I]t should be clear that ‘truthfulness or untruthfulness’ refers to the general 

character of the witness for veracity, not whether specific testimony of the witness 

is correct. Thus, evidence of witness conduct can be admitted under this provision 

only when it is probative of truthful or untruthful character. By the same token, 

evidence of specific instances which is not admissible under Rule 608(b) might 

still be admitted to impeach by contradiction, bias, or lack of capacity. 

28 Charles A. Wright & Victor J. Gold, Federal Practice and Procedure § 6118 (2d ed. 2019). 

Federal courts also consistently distinguish between impeachment by contradiction and 

evidence of a witness’s character for truthfulness or untruthfulness. In United States v. Castillo, 

181 F.3d 1129, 1132 (9th Cir. 1999), the Ninth Circuit held that “impeachment by contradiction 

is not governed by [Rule 608(b)].” Id. The Ninth Circuit further explained: 

Rule 608(b) prohibits the use of extrinsic evidence of conduct to impeach a 

witness’ credibility in terms of his general veracity. In contrast, the concept of 

impeachment by contradiction permits courts to admit extrinsic evidence that 

specific testimony is false, because contradicted [sic] by other evidence [of] direct 

examination testimony containing a broad disclaimer of misconduct sometimes 

can open the door for extrinsic evidence to contradict even though the 

contradictory evidence is otherwise inadmissible under Rules 404 and 608(b) and 

is, thus, collateral. 

Id. at 1132–33 (quoting 2A Charles A. Wright & Victor J. Gold, Federal Practice and 

Procedure § 6119 (1993)). Thus, the Ninth Circuit recognizes a distinction between evidence 

governed by Rule 608(b) and evidence offered to impeach by contradiction. Id. at 1133; see also 

United States v. Chu, 5 F.3d 1244, 1249 (9th Cir. 1993). The Ninth Circuit also views character 

of untruthfulness to be prior instances of lying or fraud. See United States v. Gay, 967 F.2d 322, 

328 (9th Cir. 1992) (“Evidence of prior frauds is considered probative of the witness’s character 

for truthfulness or untruthfulness.”). 

After examining this Court’s precedent and interpretations of the federal rules, we 

conclude that I.R.E. 608(b) applies to prior instances of conduct that bear on a witness’s 

character for truthfulness or untruthfulness. These situations are limited to prior instances where 

the witness lied, committed fraud, or otherwise acted untruthfully. See Wright § 6118. Further, 

608(b) does not apply to admit evidence of impeachment by contradiction, which is

distinguished from evidence of a witness’s character for untruthfulness. See Pierson, 115 Idaho 

at 533, 768 P.2d at 796; see also Castillo, 181 F.3d at 1132. 

Here, the prior instances of Hayes’ conduct elicited on cross-examination were not 

probative to his character for truthfulness or untruthfulness. None of the prior instances of 
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conduct placed his veracity in question. In other words, none of the prior instances pertained to a 

situation in which Hayes lied, perjured himself, or acted dishonestly. Instead, the instances of 

conduct depicted Hayes as aggressive, disrespectful, and threatening towards correctional 

officers and fellow inmates. For example, the prior instances of conduct involve Hayes 

threatening an officer, saying that he was going to knock her through a wall, and yelling a racial 

slur at another inmate. Thus, these instances are not probative of Hayes’ character for 

truthfulness or untruthfulness. Instead, the prior instances of conduct are evidence of 

impeachment by contradiction. Rather than demonstrate character of truthfulness or 

untruthfulness, the evidence of prior conduct directly contradicts statements that Hayes made on 

the witness stand that he was always respectful of guards and other inmates. Thus, the district 

court misapplied I.R.E. 608(b) in allowing the state to inquire into Hayes’ prior instances of 

conduct.

Despite the district court’s misapplication of I.R.E. 608(b), the evidence was still 

admissible. After examining the record, the prior instances of conduct were admissible evidence 

of impeachment by contradiction. When the district court ruled on the prior instances of conduct, 

it rejected Hayes’ objections on based on I.R.E. 403 and 404(b). The district court found that the 

evidence was relevant and probative to Hayes’ credibility, and that it was not unfairly prejudicial 

under I.R.E. 403. All relevant evidence is admissible, unless otherwise provided by the I.R.E. or 

other Idaho court rules. Ehrlick, 158 Idaho at 926, 354 P.3d at 488. Hayes bore the burden of 

establishing that the relevant evidence was otherwise inadmissible. Soria, 111 Idaho at 617–18, 

726 P.2d at 729–30. Hayes failed to meet that burden. The district court rejected Hayes’ two 

bases for exclusion: I.R.E. 403 and I.R.E. 404(b). Thus, despite the district court’s incorrect 

application of I.R.E. 608(b), the evidence of Hayes’ prior conduct was nonetheless admissible. 

Idaho Rule of Evidence 607 states that “[a]ny party, including the party that called the witness, 

may attack the witness’s credibility.” I.R.E. 607. The State had no burden to demonstrate that the 

relevant evidence was admissible. Soria, 111 Idaho at 617–18, 726 P.2d at 729–30. Rather, 

Hayes bore the burden to oppose the evidence and provide a basis for exclusion. As explained 

below, Hayes’ alternative basis for exclusion—I.R.E. 403—also fails. Thus, the prior conduct 

was admissible to attack Hayes’ credibility through impeachment by contradiction. 

Hayes argues that the State failed to raise I.R.E. 607 as grounds for admission at trial.

Hayes argues that the State cannot argue for the first time on appeal that the evidence would be 
14

admissible under I.R.E. 607. We disagree. At trial, the burden was on Hayes to exclude the 

evidence, not on the State to provide a basis for admission. Thus, the State’s failure to raise 

I.R.E. 607 at trial does not change the analysis here. Accordingly, Hayes’ prior instances of 

conduct were admissible as impeachment evidence despite the district court’s improper 

application of I.R.E. 608(b).

2. Hayes’ Rule 403 challenge.

Alternatively, Hayes argues that district court abused its discretion in finding that his 

prior instances of conduct were not substantially outweighed by the danger of unfair prejudice 

under I.R.E. 403. Hayes asserts that the evidence was “extremely prejudicial and far 

outweighed” any probative value to his character for truthfulness. We disagree.

When the district court considered this evidence at Hayes’ trial, I.R.E. 403 provided: 

“Although relevant, evidence may be excluded if its probative value is substantially outweighed 

by the danger of unfair prejudice, confusing of the issues, or misleading the jury, or by 

considerations of undue delay, waste of time, or needlessly presenting cumulative evidence.” 

I.R.E. 403 (2017).

The district court did not abuse its discretion in weighing the evidence. The district court 

found that the evidence was “relevant to the question of credibility,” and “probative to the 

question of whether or not the defendant was truthful on the witness stand.” The district court 

also considered the prejudicial value of the cross-examination, and attempted to limit the 

prejudicial effect. For instance, the district court limited the inquiry to asking Hayes about the 

prior instances of conduct; no follow up questions were allowed after Hayes’ responses. The 

district court also stated that Hayes would have leeway in the form of redirect examination and 

issued a limiting instruction to the jury that the prior instances could only be used for credibility 

purposes. To be clear, the evidence of Hayes’ prior instances of conduct was prejudicial to his 

case. The instances of conduct demonstrate threatening and aggressive behavior towards guards 

and other inmates. However, the standard is whether the unfair prejudicial value of the evidence 

substantially outweighs its probative value. Here, that is not the case. The probative value of the 

evidence goes directly to Hayes’ credibility and veracity on the witness stand. Credibility of the 

witness is always at issue. Araiza, 124 Idaho at 91, 856 P.2d at 881. Thus, the district court

properly weighed the evidence’s probative value with its unfair prejudicial effect, and 
15

determined that the evidence was not unfairly prejudicial. Accordingly, the district court did not 

abuse its discretion. 

C. The district court did not err in denying Hayes’ motion for a new trial.

Hayes also argues that the district court abused its discretion by denying his post-trial 

motion for a new trial. Specifically, Hayes argues that the district court’s order granting the 

State’s motion in limine prevented him from properly impeaching the correctional officers 

regarding their behavior during the November 10, 2015 altercation. Hayes argues that, because 

credibility is always relevant and at issue, the IDOC prison guidelines were relevant to the 

correctional officers’ motive to lie. Additionally, Hayes argues that the probative value of 

questions regarding IDOC guidelines and policies are not substantially outweighed by the danger 

of wasting time, confusing issues, and misleading the jury.

At the time Hayes filed his motion for a new trial, Idaho Criminal Rule 34 provided, 

“[o]n the defendant’s motion, the court may vacate any judgment and grant a new trial on any 

ground permitted by statute.” I.C.R. 34(a) (2017). I.C.R. 34 affords the trial court discretion to 

order a new trial, but Idaho Code section 19-2406 provides “the only grounds permitting the 

grant of a new trial and, therefore, limits the instances in which the trial court’s discretion may 

be exercised.” State v. Ellington, 157 Idaho 480, 485, 337 P.3d 639, 644 (2014) (quoting State v. 

Cantu, 129 Idaho 673, 675, 931 P.2d 1191, 1193 (1997)) (internal quotation marks omitted). 

Hayes challenges the denial of his motion for a new trial based on Idaho Code section 19-

2406(5), which provides:

When a verdict has been rendered against the defendant the court may, upon his 

application, grant a new trial in the following cases only:

. . . 

(5) When the court has misdirected the jury in a matter of law, or has erred 

in the decision of any question of law arising during the course of trial.

I.C. § 19-2406(5). The issue of relevance is a question of law over which this Court exercises 

free review. State v. Raudebaugh, 124 Idaho 758, 766, 864 P.2d 596, 604 (1993). Accordingly, 

the exclusion of relevant evidence would be error as a matter of law—one of the statutory 

grounds for a new trial. State v. Carlson, 134 Idaho 389, 397, 3 P.3d 67, 75 (Ct. App. 2000). This 

Court reviews the district court’s weighting process under I.R.E. 403 for an abuse of discretion. 

State v. Kralovec, 161 Idaho 569, 574, 388 P.3d 583, 588 (2017). 
16

On appeal, Hayes challenges two of the district court’s evidentiary rulings in denying his 

motion for a new trial: (1) the district court erred as a matter of law in finding that questioning 

the correctional officers about IDOC infraction hearing guidelines was irrelevant to his case; and 

(2) the district court abused its discretion in finding that even if the questions were relevant, they 

would be excluded under I.R.E. 403. We address these rulings in turn. 

1. The district court did not err as a matter of law in finding questions regarding 

IDOC’s disciplinary and infraction hearing guidelines irrelevant.

Hayes contends that the district court erred in ruling that questions to the correctional 

officers regarding IDOC guidelines were irrelevant. Hayes argues that IDOC guidelines for 

disciplinary hearings and infraction hearings were relevant because they related to the 

correctional officers’ motivation to lie. Essentially, Hayes bases his argument on credibility. 

Hayes asserts that the credibility of a witness is always relevant and at issue in trial. Thus, 

because the district court denied Hayes an opportunity to question the correctional officers on 

their credibility—e.g., their motivation to lie—the district court erroneously excluded relevant 

evidence. 

Hayes relies on State v. Araiza, 124 Idaho 82, 856 P.2d 872 (1993), where this Court held 

that the Sixth Amendment allows a defendant to inquire on cross-examination into the potential 

bias or motive of a witness. Id. at 91, 856 P.3d at 881 (citing Davis v. Alaska, 415 U.S. 308, 319 

(1974)). This Court further held that, “[i]n order to give meaning to the right to confront a 

witness, the defendant must be permitted to do more than merely ask whether a witness is biased, 

but must be allowed to show why the witness might be biased by presenting the facts necessary 

to allow the jurors to form inferences regarding the witness’ impartiality.” Id. Further, Hayes 

argues that Araiza supports his position that “bias, prejudice, or motive of a witness to lie 

concerning issues presented in trial is always material and relevant to effective crossexamination.” Id. (emphasis added). Hayes argues that questioning the correctional officers on 

IDOC’s guidelines was relevant to their motivation to lie about the way in which they conducted 

the infraction hearing, why they used force on Hayes, and their desire to cover up their violation 

of guidelines during the incident. Thus, Hayes argues that it was error for the district court to 

prevent him from questioning the correctional officers about their potential motivation to lie on 

relevance grounds, because such questions are always relevant.

Clarifying exactly what questions Hayes was prevented from asking through the State’s 

motion in limine is an important starting point in this analysis. Hayes claims he was prevented 
17

from asking the correctional officers questions about IDOC guidelines in three areas: (1) 

conducting disciplinary hearings; (2) conducting infraction hearings; and (3) the use of force. 

The State’s motion in limine and the district court’s order granting the State’s motion in limine 

make no mention of questions regarding the use of force or IDOC’s guidelines for the use of 

force. Thus, Hayes was not prevented, at least through the State’s motion in limine, from asking 

the correctional officers about their compliance with IDOC’s use of force guidelines at trial. 

Accordingly, the inquiry here is limited to what questions Hayes was prevented from asking the 

correctional officers about from the State’s motion in limine—IDOC guidelines regarding 

disciplinary and infraction hearings. 

Viewing IDOC’s guidelines for disciplinary and infraction hearings under the plain 

language of I.R.E. 401, the guidelines are not relevant. The IDOC guidelines do not make a fact 

of consequence more or less probable in determining whether Hayes battered the correctional 

officers. See I.R.E. 401. Further, the IDOC guidelines do not bear on Hayes’ asserted innocence 

defense. Hayes contends that he never touched, let alone battered, the correctional officers. The 

mere existence of IDOC guidelines pertaining to infraction hearings do not by themselves make 

Hayes’ innocence defense more or less likely. 

However, Hayes’ arguments regarding the relevance of the IDOC guidelines are solely 

based in credibility. These arguments are more persuasive given this Court’s precedent in Araiza. 

The State argues that the mere existence of IDOC guidelines does not suggest that the 

correctional officers had a motivation to lie about their behavior in conducting the infraction 

hearing. Hayes appears to agree, arguing that “the guidelines themselves did not serve to ‘create 

an incentive to lie’[.]” Rather, Hayes argues that the correctional officers’ desire to cover up their 

own alleged IDOC guideline violations served as a motivation to give false testimony. 

Despite this Court’s precedent in Araiza, questioning the correctional officers regarding 

the guidelines is not relevant to the correctional officers’ credibility on the witness stand. First, 

the record does not show that Hayes alleged any specific violations of disciplinary or infraction 

hearing guidelines. Rather, Hayes asserts that the correctional officers violated a general 

“tolerance” policy from 1997, and IDOC use of force policies. In a pretrial motion to introduce 

Rule 404(b) evidence, Hayes argued that the correctional officers disregarded IDOC standard 

operating procedure 318.02.01.001. This procedure is contained in a thirty-nine page document

that is available to the public and was produced to Hayes in discovery. The document establishes 
18

guidelines for ensuring the inmate disciplinary system is managed consistently throughout IDOC 

and applies to all IDOC staff members and inmates. However, regarding disciplinary and 

infraction hearing guidelines, Hayes cannot articulate what specific infraction guidelines within 

318.02.01.001 the correctional officers violated. Thus, Hayes failed to provide a sufficient offer 

of proof as to why questioning the correctional officers on IDOC’s guidelines for disciplinary 

and infraction hearings would be relevant to his case. See State v. Joslin, 145 Idaho 75, 82, 175 

P.3d 764, 771 (2007) (“The purpose of an offer of proof is to make a record either for appeal or 

to enable the court to rule on the admissibility of proffered evidence.”). This Court does not 

search the record for error, and the party alleging the error has the burden of showing it in the 

record. Akers v. D.L. White Constr., Inc., 156 Idaho 37, 48, 320 P.3d 428, 439 (2014). Thus, 

Hayes failed to make a sufficient offer of proof to support his relevance argument on appeal. 

Second, Hayes’ reliance on Araiza is misplaced. Araiza is distinguished from the 

situation here. The defendant in Araiza did not challenge the limitation of cross-examination on 

relevance grounds under I.R.E. 401. 124 Idaho at 91, 856 P.3d at 881. Rather, the defendant 

asserted that the trial court abused its discretion under I.R.E. 608(b) and violated his 

constitutional right to confront a witness. Id. Here, Hayes limits his challenge to relevance alone. 

Furthermore, contrary to Hayes’ position, Araiza also clarifies that “[a] defendant’s right to 

confront a witness is not absolute. The trial court may reasonably limit cross-examination that is 

harassing, confusing, repetitive, or only marginally relevant.” Id. (citing Delaware v. Van 

Arsdall, 475 U.S. 673, 679 (1986)). Additionally, in Araiza, this Court held that limiting the 

scope of cross-examination did not interfere with the defendant’s right to conduct a full crossexamination because the proposed cross-examination “went to a collateral issue[.]” Id. We 

acknowledge that credibility is always at issue, but Araiza gives the district court discretion in 

limiting the scope of cross-examination where the testimony is marginally relevant or pertains to 

a collateral issue. See id. Here, the correctional officers’ compliance with infraction hearing 

guidelines is marginally relevant at best and is a collateral issue to battery. Therefore, the district 

correctly applied the applicable legal standards under Lunneborg’s third prong in granting the 

State’s motion in limine. Accordingly, the district court did not abuse its discretion in denying 

Hayes’ motion for a new trial on relevance grounds. 
19

2. The district court did not abuse its discretion in finding questions regarding 

IDOC’s infraction hearing guidelines inadmissible under I.R.E. 403.

The district court provided an alternative ground for denying Hayes’ motion for a new 

trial. The district court found that even if questions about IDOC’s guidelines for infraction 

hearings were marginally relevant, they were inadmissible under I.R.E. 403 as a waste of time, 

confusing issues for the jury, and misleading the jury. Hayes argues that the district court abused 

its discretion denying his motion for a new trial on this basis. We disagree. 

When the district court denied Hayes’ motion for a new trial, I.R.E. 403 provided: 

“Although relevant, evidence may be excluded if its probative value is substantially outweighed 

by the danger of unfair prejudice, confusing of the issues, or misleading the jury, or by 

considerations of undue delay, waste of time, or needlessly presenting cumulative evidence.” 

I.R.E. 403 (2017). A trial should not stray from the central issues of guilt or innocence of the 

defendant and should not allow “full-scale investigations into other matters.” State v. 

MacDonald, 131 Idaho 367, 371, 956 P.2d 1314, 1318 (Ct. App. 1998). 

 The district court did not abuse its discretion in finding that questions regarding IDOC’s 

guidelines for discipline and infraction hearings were inadmissible under I.R.E. 403. The 

probative value of whether the correctional officers followed the IDOC guidelines in conducting 

the infraction hearing is minimal in determining whether Hayes battered the correctional officers. 

Additionally, allowing Hayes to question the correctional officers on technical IDOC guidelines

regarding infraction hearings could confuse issues for the jury. Instead of focusing on whether 

Hayes battered the correctional officers, the jury could be forced to decipher infraction hearing

guidelines, whether the correctional officers complied with them, and, ultimately, whether the 

officers battered Hayes to cover-up any violation. None of this would be probative of the issues 

the jury was required to resolve. Further, allowing this line of questioning could mislead the jury 

into examining the collateral issue of whether the correctional officers conducted Hayes’ 

infraction hearing in compliance with IDOC guidelines. Essentially, allowing these questions on 

cross-examination could create a trial of the correctional officers’ conduct within Hayes’ battery 

trial. Thus, the probative value of the questions on cross-examination is substantially outweighed 

by the danger of confusing issues and misleading the jury. Therefore, the district court did not 

abuse its discretion in finding that the questions were not admissible under I.R.E. 403. As such, 

the district court did not abuse its discretion in denying Hayes’ motion for a new trial. 
20

IV. CONCLUSION

We affirm Hayes’ judgment of conviction. 

Chief Justice BURDICK and Justice BEVAN CONCUR.

STEGNER, J., concurring in the result.

I agree with the majority’s conclusion to affirm Hayes’ judgment of conviction. 

However, I write separately to avoid implicitly condoning the practice employed by the 

prosecution in this case. I believe that the prosecution improperly “opened the door” to admit 

character evidence against Hayes, despite Hayes never having placed his character at issue.

Here, Hayes testified in his own defense and was cross-examined by the State. 

Specifically, the State asked about Hayes’ conduct towards other correctional officers and 

inmates at the Idaho Maximum Security Institution (IMSI), an issue that was not dealt with on 

Hayes’ direct examination. When Hayes testified that he was always respectful towards other 

inmates and officers, the State sought, outside the presence of the jury, to question him further 

about specific prior instances of conduct that contradicted his testimony. Defense counsel 

objected, arguing that it was improper character evidence under Rule 404(b), unfairly prejudicial 

under Rule 403, and that it should be excluded under Rule 608(b). The district court ruled that 

Rule 404(b) did not apply, and that Rule 608(b) applied to permit the State’s inquiry on crossexamination. 

On appeal, Hayes has not argued that the district court erred in ruling that Rule 404(b) 

did not apply. Accordingly, Hayes has waived this argument on appeal. See State v. Gonzales, 

165 Idaho 667, 672–73, 450 P.3d 315, 320–21 (2019) (citing Bach v. Bagley, 148 Idaho 784, 

790, 229 P.3d 1146, 1152 (2010)); see also I.A.R. 35(a)(6). For this reason, I agree with the 

majority’s conclusion to affirm Hayes’ judgment of conviction.

Nevertheless, I write separately to clarify that the prosecution cannot “open the door” to 

its own character evidence. Idaho case law with respect to Rule 404(b) evidence leaves this 

question unanswered. However, case law and authority from other jurisdictions strongly suggest 
21

that the prosecution may not “open the door” itself to present evidence of prior bad acts, which 

would be subject to Rule 404.1

The general rule is that “one cannot open the door for one’s own evidence; it requires 

some action by the opponent.” 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal

Practice and Procedure § 5039.1 (2d ed. 2019). Likewise, a defendant’s character cannot 

become an “open” subject because of answers elicited by the prosecutor on cross-examination; 

rather, it is the defendant who must put his character in issue. Iowa v. Jones, 471 N.W.2d 833, 

835 (1991); see also Robertson v. Florida, 780 So.2d 94, 96 (Fla. Dist. Ct. App. 2000) (citation 

omitted) (“The state’s argument that the evidence was for impeachment purposes must fail where 

that impeachment could not have occurred without the defendant first affirmatively putting his 

character at issue[.]”); Ohio v. Grubb, 675 N.E.2d 1353, 1355 (Ohio Ct. App. 1996) (“The 

prosecution cannot circumvent the limited nature of the exception provided in [Rule 404] by 

putting the character of an accused in issue via its own questions, and then present evidence to 

rebut the answers. Such tactics run afoul of the universal principle that the prosecution may not 

offer, in the first instance, evidence of an accused’s character to show a general propensity to 

commit the acts underlying the crime charged.”). 

Here, the State put Hayes’ character at issue by eliciting testimony from Hayes on crossexamination that he was generally respectful of other inmates and correctional officers at IMSI. 

The State then sought to introduce evidence of specific instances of Hayes’ past conduct to rebut 

Hayes’ contention that he was always respectful. The State cannot open the door to this type of 

character evidence and then impeach Hayes through Rule 404 evidence. Hayes did not put his 

character at issue; the State did. Accordingly, the evidence should have been inadmissible 

pursuant to Rule 404. However, as noted, Hayes abandoned Rule 404 entirely on appeal. 

Accordingly, I am constrained from reviewing the issue. 

Justice MOELLER CONCURS.

 

1 Additionally, Rule 404(b) requires the prosecution to provide a defendant with notice in advance of trial before the 

prosecution may seek to admit evidence of prior bad acts at trial. I.R.E. 404(b)(2)(A)–(B). This Court has held that 

the notice requirement in I.R.E. 404(b) is mandatory and failure to give advance notice would bar the admission of 

such evidence. State v. Sheldon, 145 Idaho 225, 230, 178 P.3d 28, 33 (2008). Here, the State never provided notice 

that it intended to offer evidence of Hayes’ conduct while he was incarcerated. Accordingly, the lack of notice is 

another reason to bar the introduction of this evidence. However, as Hayes has waived the argument of Rule 404(b), 

we are foreclosed from addressing the issue.