IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 47557
STATE OF IDAHO, )
) Filed: February 2, 2021
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
JESSE STEPHEN BARBER, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Bonneville County. Hon. Joel E. Tingey, District Judge.
Judgment of conviction for violation of a no-contact order, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford,
Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
Attorney General, Boise, for respondent.
________________________________________________
BRAILSFORD, Judge
Jesse Stephen Barber appeals from his judgment of conviction for violating a no-contact
order (NCO). We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The State charged Barber with intimidating a witness, Idaho Code § 18-2604, and
violating an NCO, I.C. § 18-920. Barber pled not guilty and proceeded to trial. At trial, Barber
primarily represented himself, although a “standby attorney” assisted him. Barber defended
against the NCO violation by asserting the State failed to serve him with the NCO. The
following evidence related to that defense was presented at trial.
In October 2017, Barber was charged with a crime against his girlfriend. As a result of
that crime, the district court issued an NCO prohibiting Barber from having any contact with his
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girlfriend, including by telephone. The State presented Sergeant White’s testimony regarding the
NCO’s service on Barber. Sergeant White testified that her responsibilities at the jail included
“attend[ing] arraignments and tak[ing] care of deliveries,” including delivering court
“paperwork” such as NCOs. Sergeant White testified that on October 23, she received an NCO
for Barber, delivered it to him while he was sitting in the arraignment hallway in jail, explained it
to him, saw him sign and date it, and countersigned and dated it. Based on Sergeant White’s
testimony that Exhibit 1 was a true and correct copy of the signed NCO, the district court
admitted Exhibit 1 into evidence over Barber’s objection.
Sergeant White further testified that once she serves an NCO on a defendant, she makes a
copy of it for the defendant and for the file and places the original in the jail’s “courthouse box”
to be returned to the courthouse for filing. On cross-examination, Barber elicited from Sergeant
White that the court’s file stamp date on Exhibit 1 was October 24 at 8:44 a.m., and on redirect
examination, Sergeant White testified it would be normal for an NCO served on the afternoon of
October 23 to have “a court stamp the following morning.”
After Sergeant White’s testimony concluded, Barber moved to admit an unsigned version
of the NCO identified as Exhibit D, and the State objected. The district court, counsel, and
Barber had a discussion outside the jury’s presence about the nature of the State’s objection; i.e.,
Barber had failed to identify Exhibit D as a potential trial exhibit.1 Barber explained to the court
that he had received Exhibit D from the State in a discovery response on February 8, 2018;
Exhibit D had a court file stamp date of October 23 at 3:23 p.m.; and he did not receive Exhibit 1
until the State’s February 16, 2018, discovery response.
The district court explained to Barber that “there’s a big difference between disclosing
records in discovery and identifying a document as a potential exhibit.” The court also explained
to Barber that a defendant does not generally get to ask further questions of a witness after the
State’s “rebuttal questions” on redirect examination. The court, however, acknowledged it had
not warned Barber (who was proceeding pro se during Sergeant White’s testimony) about this
limitation and offered to allow Barber to ask Sergeant White questions about Exhibit D.
Specifically, the court stated that “if you have additional questions [for Sergeant White] about
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Before trial, Barber’s counsel signed and served on the State a witness and exhibit list.
This list did not identify any exhibits.
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why there may be a different date stamp on [Exhibit D], I’m going to let you ask that question if
that’s what you want to get into” to which Barber responded, “That’s what I want to get into.”
On Barber’s recross-examination of Sergeant White, Barber elicited that, unlike
Exhibit 1, five boxes at the end of Exhibit D were checked, including “File,” “Sheriff’s Office,”
“Prosecutor,” “Defense Attorney,” and “Protected Person” and that “the date on the bottom” of
Exhibit D was October 23, 2017. On the prosecutor’s further redirect-examination, Sergeant
White explained that the October 23 date indicated the date the court faxed the NCO to the jail
and that Exhibit D did not change her prior testimony that she served the NCO on Barber on the
afternoon of October 23.
Then, the State presented the testimony of Lieutenant Vitacolonna to explain “Telmate,”
the jail telephone system, and the testimony of Detective Medrano, who testified Barber
contacted his girlfriend by telephone from the jail on October 23 at 5:59 p.m. Barber’s girlfriend
also testified that Barber telephoned her through the jail’s Telmate system on October 23.
According to her testimony, Barber said during the phone call that “there was a no-contact order
in place and that he couldn’t talk to [her].” Further, she testified that she understood Barber was
calling because he did not want her to appear to testify against him at a November 2017 court
hearing, she told him she would not appear, and she in fact did not appear at the November 2017
hearing. The State then played a recording of the October 23 telephone call between Barber and
his girlfriend. Afterwards, the girlfriend testified that Barber did not threaten, harass, or
intimidate her during the call but that his statement that the charges against him would be
dropped if she did not appear at the November 2017 court hearing influenced her not to show to
testify against him.
Barber testified in his own defense through questioning by his “standby attorney.”
According to his testimony, on October 23 he returned from the arraignment hallway to “the tier”
in the jail without ever being served with the NCO and never received it except in discovery in
this case. Further, Barber testified that after returning to the tier on October 23, he called his
girlfriend and was trying to “make that phone call before [being] served with a no-contact order.”
Additionally, Barber testified that he never signed an NCO and that the signature on Exhibit 1
looked like his but was a “copy.” After the conclusion of Barber’s testimony, Barber (acting pro
se) again moved to admit Exhibit D; the State objected; and the district court sustained the
objection because Barber did not disclose the document as a potential trial exhibit.
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The jury convicted Barber of both intimidating a witness and violating the NCO, and
Barber appeals his conviction for violating the NCO.2
II.
ANALYSIS
Barber argues the district court abused its discretion by refusing to admit Exhibit D into
evidence. Idaho Criminal Rule 16(c)(1)(C) requires a defendant to disclose, upon the
prosecutor’s written request, documents the defendant intends to introduce in evidence at trial.
When a party fails to comply with such a discovery request, the trial court may impose sanctions,
including the exclusion of evidence. State v. Wilson, 158 Idaho 585, 588, 349 P.3d 439, 442 (Ct.
App. 2015). “Sanctions serve the dual purposes of encouraging compliance with discovery and
punishing misconduct.” Id. Whether to impose a sanction and the appropriate sanction is within
the trial court’s discretion. Id. “To determine whether a sanction will be imposed and what it
will be, the trial court must weigh the equities, balancing the culpability of the disobedient party
with the resulting prejudice to the innocent party in light of the twin aims of the sanction power.”
Id. Demonstrating prejudice ordinarily requires showing the late disclosure hampers a party’s
ability to meet the evidence at trial, has a deleterious effect on a party’s trial strategy, or deprives
a party of the opportunity to raise a valid challenge to the admissibility of evidence. State v.
Allen, 145 Idaho 183, 186, 177 P.3d 397, 400 (Ct. App. 2008).
When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the trial court: (1) correctly perceived the
issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted
consistently with any legal standards applicable to the specific choices before it; and (4) reached
its decision by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158
(2018). A trial court’s failure to analyze whether a party would suffer prejudice due to late
disclosure constitutes an abuse of discretion. State v. Lamphere, 130 Idaho 630, 634, 945 P.2d 1,
5 (1997); see also State v. Harris, 132 Idaho 843, 847, 979 P.2d 1201, 1205 (1999) (concluding
court abused discretion by not evaluating prejudice to State against defendant’s right to fair trial).
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After his conviction, Barber filed a petition for post-conviction relief. The district court
granted Barber’s petition and ordered that he “be given an opportunity to appeal the Judgment of
Conviction in this matter.” Thereafter, the court entered an amended judgment from which
Barber timely appeals.
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On appeal, Barber does not dispute that he failed to timely disclose Exhibit D in violation
of I.C.R. 16(c)(1)(C). Rather, Barber argues that the district court failed to analyze whether the
admission of Exhibit D would prejudice the State and that the court “chose the harsh sanction of
exclusion without examining any less severe remedies.” In response, the State concedes the
court failed to weigh the prejudice to the State of admitting Exhibit D against Barber’s right to a
fair trial. It argues, however, that this error was harmless.
Idaho Criminal Rule 52 provides that “any error, defect, irregularity or variance that does
not affect substantial rights must be disregarded.” Error is not reversible unless it is prejudicial.
State v. Stell, 162 Idaho 827, 830, 405 P.3d 612, 615 (Ct. App. 2017). Accordingly, we examine
whether the error is a harmless error. Previously, this Court has ruled that “where an error
concerns evidence omitted at trial, the test for harmless error is whether there is a reasonable
possibility that the lack of excluded evidence contributed to the verdict.” State v. Barcella, 135
Idaho 191, 197, 16 P.3d 288, 294 (Ct. App. 2000); see also Harris, 132 Idaho at 847, 979 P.2d at
1205 (same). Recently, however, the Idaho Supreme Court clarified the harmless error standard
in State v. Garcia, 166 Idaho 661, 462 P.3d 1125 (2020). In that case, the Court ruled that the
application of the harmless error standard requires the appellate court to weigh the probative
force of the record as a whole and at the same time compare it against the probative force of the
error. Id. at 674, 462 P.3d at 1138. The reviewing court must take into account what effect the
error had, or reasonably may have had, on the jury in the context of the total setting and in
relation to all else that happened. Kotteakos v. United States, 328 U.S. 750, 764 (1946).
Applying this standard, we conclude the district court’s failure to weigh Barber’s right to
a fair trial against the prejudice to the State of admitting Exhibit D was a harmless error.
Contrary to Barber’s assertion, the court did not choose “the harsh sanction of exclusion without
examining any less severe remedies.” Rather, the court provided Barber with a remedy for his
failure to disclose Exhibit D by allowing him to question Sergeant White about the document,
despite that Sergeant White’s testimony had already concluded.
This remedy allowed Barber to elicit testimony from Sergeant White that the unsigned
Exhibit D had a “stamped time” at the top of 3:23 p.m.; had a “date on the certification” of “2-8
of ‘18”; was not an “official court record” “from the arraignment room”; was not faxed to
Sergeant White; had several boxes checked for “File,” “Sheriff’s Office,” “Prosecutor,”
“Defense Attorney,” and “Protected Person,” which were not checked on the signed Exhibit 1;
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had a statement certifying the document was “a full and correct copy of the original”; and had a
date on the bottom of the unsigned document of October 23, 2017. In addition to this testimony,
Barber testified that he was never served with the NCO; he never signed the NCO; he never saw
the unsigned NCO, Exhibit D, until February 8, 2018, when the State produced it in discovery;
he did not see the signed NCO, Exhibit 1, until February 16 when the State produced it in
discovery; and the signature on Exhibit 1 was not his signature but a “copy” of it.
Based on his own testimony and that of Sergeant White about the differences between the
unsigned Exhibit D and the signed Exhibit 1, Barber was able to effectively argue his theory of
the case in closing argument, i.e., that the State never served the NCO on him as evidenced by
the absence of a signature on Exhibit D and that the signature on Exhibit 1 was not his but
manufactured. Specifically, Barber argued:
Now, the no-contact order, I have absolutely no memory of receiving a
contact order--a no-contact order. I went to court. The judge said, “No contact
with the witnesses or victims.” And you heard my testimony yesterday. Nobody
sent me back with a paper. I don’t remember signing anything. And this whole
time I’m thinking, Well, they never served it on me. When I went back to the tier,
I said, Well, I’d better get on the phone and call before I get this service, talk to
her.
....
The other thing about the no-contact order, when Ms. White was on the
stand, I entered--I gave her an exhibit of the no-contact order that I received on
February 8th. She read the date off to you on the official stamp that said
February 8th. She also looked at the back page of it. There were no signatures on
the back page of it. However, there were--each box was checked on the back
page of it. And if I can have you refer back to State’s Exhibit l.
....
State’s Exhibit l, which is a later copy, the date and time of the one that
was given to Ms. White on the stand yesterday was October 23rd at 3:23 PM.
That was the one that was sent to the jail for me to sign. And she testified that the
boxes were checked on the signature page without signatures. The date at the top
of this is October 24th, and the time is 8:44 AM. I don’t know how many hours
that is. That’s like 12 plus 5, 17 hours later. Seventeen hours later with
signatures on them from the date prior. However, no boxes are checked. How do
you uncheck a box? How do you uncheck a box? The order was sent to the jail
with the boxes checked saying that it was delivered to the file, the sheriff’s office,
the prosecutor, defense attorney, and the protected person. And Ms. White
testified that each of those boxes were checked. How do you send--how do you
uncheck a box? All of a sudden, my signature’s on it and the boxes are
unchecked. That doesn’t make any sense to me. It doesn’t make any sense
whatsoever.
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. . . If I would have signed that copy, the boxes would have been checked
on that copy. But I didn’t. How easy is it for someone to put light under
something and sign over the top of it? How easy is it for someone to make a
Xerox copy of someone’s signature? I think what happened here is a case that
was intended to be prosecuted was unable to be prosecuted, so the State decided
to make a case out of nothing. That’s why we’re here today. And I think that’s
what you’re going to decide as well.
As Barber’s closing argument demonstrates, Barber was able to articulate his defense--
i.e., Sergeant White never served him with the NCO and he never signed the NCO--even without
the admission of Exhibit D. Regardless, the jury rejected Barber’s theory of the case and found
him guilty. Weighing the probative force of the record as a whole against the probative force of
the error, we hold that the court’s exclusion of Exhibit D as a discovery sanction without first
weighing the prejudice against the State was a harmless error. The probative force of the record
as a whole includes that, among other things, Barber specifically acknowledged during his
closing argument, during his testimony, and during the recorded telephone conversation with his
girlfriend that he knew the district court had entered an NCO prohibiting him from contacting
her and yet he contacted her anyway. Meanwhile, the district court’s remedy of allowing
testimony about Exhibit D diminished the probative force of the error, making it harmless in
relation to the context of the entire trial.
III.
CONCLUSION
We hold that the district court’s error in excluding Exhibit D without first weighing
Barber’s right to a fair trial against any prejudice to the State was a harmless error. Accordingly,
we affirm the judgment of conviction for violation of the NCO.
Judge GRATTON and Judge LORELLO CONCUR.
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