IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 49565
)
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) Boise, Sept. 2022 Term
)
v. ) Opinion Filed: February 8, 2023
)
GILBERTO ROMAN-LOPEZ, ) Melanie Gagnepain, Clerk
)
Defendant-Appellant. )
_______________________________________ )
Appeal from the District Court of the Fourth Judicial District of the State of
Idaho, Ada County. Deborah A. Bail, District Judge.
The judgment of conviction is affirmed.
Eric D. Fredericksen, Idaho State Appellate Public Defender, Boise, for
Appellant. Brian R. Dickson argued.
Raúl R. Labrador, Idaho Attorney General, Boise, for Respondent. Justin R.
Porter argued.
_____________________
BRODY, Justice.
Gilberto Roman-Lopez appeals from his judgment of conviction entered after a jury
found him guilty of two counts of sexual abuse of a child and three counts of lewd conduct with
a minor. Roman-Lopez argues that this Court should vacate his judgment and remand for a new
trial based on two instances where he contends the district court improperly admitted hearsay
evidence. As a preliminary matter, Roman-Lopez challenges the proper standard of review for
hearsay rulings. From this, he maintains that the State will not be able to show that the errors
were harmless beyond a reasonable doubt, and that the cumulative effect of the errors deprived
him of a fair trial. Apart from alleged errors at trial, Roman-Lopez maintains that remand is
necessary because the district court did not redline portions of the presentence investigation
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report it allegedly accepted. Roman-Lopez’s appeal was initially heard by the Court of Appeals,
which affirmed. Subsequently, we granted his petition for review to this Court. For the reasons
discussed below, we affirm Roman-Lopez’s judgment of conviction and decline to remand the
matter to redline portions of the presentence investigation report.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2015, a grand jury indicted Roman-Lopez on one count of lewd conduct with a minor
and one count of sexual abuse, each involving his daughter (“Daughter”). The grand jury also
indicted Roman-Lopez on an additional two counts of lewd conduct with a minor and one count
of sexual abuse, each involving his daughter’s childhood friend (“Friend”). The indictments
arose out of allegations by Daughter and Friend, made in 2014, regarding events that had
occurred roughly four to nine years prior (from 2005 to 2010). Before the indictment, in
September 2014, Detective Corey Turner interviewed Roman-Lopez about the allegations. The
day after the interview, Roman-Lopez absconded. Roughly five years later, in 2019, Roman-
Lopez was found when he was arrested on unrelated drug charges in Colorado. Roman-Lopez
was extradited to the Ada County Jail, and in late 2019, his case proceeded to trial.
During the two-day jury trial, Friend testified that between 2006 and 2010, Roman-Lopez
had, more than once, rubbed her chest and vagina with his hands, put his penis between her legs
near her vagina; and forced her to touch and stroke his penis with her hands and feet. After
Friend testified, Daughter testified that between 2005 and 2009, Roman-Lopez had touched
Daughter’s chest and vagina and used Daughter’s feet to stroke his penis.
When Friend was on the stand, the State sought to admit a drawing of the interior of
Roman-Lopez’s home that Friend had made during a Children At Risk Evaluation Services
(CARES) interview in 2014. The drawing roughly illustrated the two locations where the alleged
conduct involving Friend had occurred: the living room and Roman-Lopez’s bedroom. After the
State laid foundation for the drawing, Roman-Lopez objected to the drawing as hearsay. The
district court admitted the drawing, without input from the State, after initially ruling that the
drawing was “not being offered for demonstrative purposes.” Shortly afterwards, when Roman-
Lopez reiterated his hearsay objection, the district court again overruled it. The court reasoned
that the drawing was “not hearsay” because Friend had prepared the drawing, properly identified
it, and it was relevant. The State published the drawing to the jury and elicited testimony from
Friend who, in turn, referenced the drawing while testifying.
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Later in the trial, Detective Turner testified that during his interview of Roman-Lopez
prior to the indictment, Roman-Lopez said it was possible that he had touched Friend while
“playing a game” but then denied that it was possible. Detective Turner also testified that
Roman-Lopez had said Friend had touched his penis with her feet “[t]wo or three times.” Later,
on re-direct, the State asked Detective Turner, “[a]nd regarding the playing with [Friend] and
[Daughter], did he say, quote, ‘my wife all the time was telling me, “hey, don’t watch movies
with those guys?” ’ ” Roman-Lopez objected that the State’s question called for “[d]ouble
hearsay . . . within the State’s exception.” In response, the State argued that the answer called for
would be admissible because, “It’s a quote from the defendant regarding him watching movies
with [Friend] and [Daughter].” (Emphasis added). The district court overruled the objection, and
Detective Turner responded, “Yes, he did say that.”
Friend’s and Daughter’s respective mothers both testified during the trial. Neither mother
witnessed any of the alleged conduct. However, each mother provided testimony that generally
corroborated Roman-Lopez’s opportunity to do what Friend and Daughter alleged. Friend’s
mother testified that during the time the alleged criminal conduct occurred, she and Friend lived
directly across the street from Roman-Lopez, and that Daughter and Friend were best friends.
Friend’s mother testified that Friend spent a lot of time at Daughter’s house (i.e., Roman-Lopez’s
house), and that she only knew Roman-Lopez from seeing him “sometimes in the driveway[.]”
Friend’s mother also testified that Friend first disclosed the underlying acts in 2014, roughly two
years after she and Friend had moved to a new area.
Daughter’s mother, also the wife of Roman-Lopez (“Wife”), testified that at the time of
the allegations, she was working two jobs and, as a result, Roman-Lopez often spent time home
alone with their two children (i.e., Daughter and a son). Wife testified that Friend lived in a
house across the street, that Daughter was best friends with Friend, and that Friend would be
over “a lot.” Wife also testified that when Roman-Lopez returned home after the interview with
Detective Turner, Roman-Lopez was “[f]rustrated” and said, “[y]ou pay for everything you do in
this life.” Wife testified that Daughter was present when Roman-Lopez returned home, and that
after Daughter confronted Roman-Lopez with “something[,]” Roman-Lopez responded,
“[f]orgive me[,] I didn’t know I was hurting you.” By the next morning, Roman-Lopez was gone
and neither Wife nor Daughter saw him again until he was arrested and returned to Idaho for the
underlying trial, roughly five years later.
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The jury found Roman-Lopez guilty on all counts. The district court then ordered a
presentence investigation report (“PSI”) to be prepared for sentencing. At the sentencing hearing,
the district court noted one correction it had made, and then asked the parties if they had any
other corrections or changes. The State did not request any corrections or changes, but Roman-
Lopez lodged a “few disagreements” with, or “corrections” to, the PSI. Specifically, Roman-
Lopez disputed the language on page seven of the PSI that indicates Roman-Lopez had refused
to move to a lower security dorm. Roman-Lopez did not offer testimony of his own to support
his objection, nor any other evidence. The district court responded to Roman-Lopez’s objection
with “all right,” but did not redline the disputed information in the PSI. Afterwards, the district
court imposed a unified sentence of forty years, with ten years fixed and thirty years
indeterminate on each of the lewd conduct counts, and a unified sentence of ten years fixed and
five years indeterminate on each of the sexual abuse counts. All of the sentences were to run
concurrently.
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. Purdum, 147 Idaho 206, 207, 207 P.3d 182, 183
(2009) (quoting State v. Oliver, 144 Idaho 722, 724, 170 P.3d 387, 389 (2007)). Because Roman-
Lopez challenges the appropriate standard of review for hearsay objections, the relevant
standards of review for his challenges are set out below.
III. ANALYSIS
A. The district court’s hearsay rulings do not constitute reversible error.
1. The standard of review for hearsay objections depends on the nature of the
challenge and the hearsay ruling.
As a preliminary matter, we clarify the appropriate standard we use to review a hearsay
objection. Until now, we have typically applied the general evidentiary standard of review to
hearsay challenges, i.e., whether the trial court’s decision was an abuse of discretion. See, e.g.,
State v. Smalley, 164 Idaho 780, 783, 435 P.3d 1100, 1103 (2019) (applying that standard to a
challenge over whether a witness was “unavailable” for purposes of an exception to the rule
against hearsay in I.R.E. 804 because the issue is evidentiary in nature); State v. Lopez-Orozco,
159 Idaho 375, 377, 360 P.3d 1056, 1058 (2015) (noting the “unavailability” finding must be
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supported by substantial and competent evidence); State v. Weaver, 170 Idaho 684, __, 516 P.3d
108, 113–15 (2022) (applying the abuse of discretion standard to a challenge involving the
“then-existing state of mind” exception in I.R.E. 803(3) where the issue involved predicate
factual findings and a judgment call by the trial court); Matter of Doe I, 170 Idaho 581, __, 514
P.3d 991, 1001 (2022) (applying the abuse of discretion standard to a challenge involving the
“business records” exception in I.R.E. 803(6) where the issue involved predicate factual findings
and a judgment call by the trial court on “trustworthiness and reliability.”).
Under the abuse of discretion standard, we use a four-part test to examine whether the
trial court: “(1) correctly perceived the issue as one of discretion; (2) acted within the outer
boundaries of its discretion; (3) acted consistently with the legal standards applicable to the
specific choices available to it; and (4) reached its decision by the exercise of reason.” State v.
Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) (quoting Lunneborg v. My Fun Life, 163
Idaho 856, 863, 421 P.3d 187, 194 (2018)).
On appeal, Roman-Lopez contends the appropriate standard of review for his two hearsay
challenges is de novo—not abuse of discretion. Roman-Lopez makes two interrelated points.
First, he maintains that whether evidence, in the first instance, meets the definition of “hearsay”
under Idaho Rule of Evidence 801(c) is a question of law similar to the question of relevancy;
thus, hearsay should be subject to the same de novo standard of review as relevancy. Second,
Roman-Lopez maintains that whether evidence, in the first instance, meets the definition of
hearsay does not involve predicate factual findings which would warrant deference from an
appellate court. In other words, deference is not required because the appellate court sits in
“exactly the same” position as the trial court. Cf. State v. Anderson, 164 Idaho 309, 312, 429
P.3d 850, 853 (2018) (holding deference to a trial court’s findings is not required in the “unusual
situation” where the appellate court has “exactly the same” evidence before it as the trial court).
This issue, and its implications, has troubled both federal and state courts. As a result,
there is a wide “split of authority [. . .] on how evidentiary rulings addressing admissibility under
the hearsay rule and its exceptions are to be reviewed.” State v. Saucier, 926 A.2d 633, 639
(Conn. 2007) (alteration added). The split runs in roughly four directions: (1) a majority of
jurisdictions use an abuse of discretion standard for challenges to the hearsay rule and its
exclusions or exceptions; (2) a minority of jurisdictions use de novo for both the hearsay
question, and its exclusions or exceptions; (3) a second minority uses a “hybrid” standard that
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depends on whether the hearsay rule (de novo) or an exception or exclusion (abuse of discretion)
is under consideration; and (4) a third minority rejects a categorical standard of review for
hearsay challenges and instead examines the nature of the hearsay ruling and challenge at issue
to determine what level of deference or scrutiny is warranted. Id. at 639–40 (cataloguing
decisions from nearly every federal and state jurisdiction).
The Connecticut Supreme Court in Saucier adopted the fourth approach (i.e., the third
minority trend), Id. at 641—and for good reason. The court in Saucier explained that the first
three approaches are superficially attractive in their ease of application, and because of the many
exceptions and exclusions for hearsay, an appellate court should be careful to not afford
unwarranted deference, nor interference, which could occur with a rigid categorical standard:
We recognize the superficial appeal of the aforementioned bright line rules
[trends one through three, supra] in their ease of application, but conclude that
such rules overlook the fundamentally complex nature of evidentiary rulings. We
therefore decline to adopt a categorical de novo or abuse of discretion standard
because application of either standard will afford unwarranted deference in some
cases and unwarranted interference in others, irrespective of the differing nature
of inquiries at issue depending on the type of statement and the rule of evidence
implicated. Although the “hybrid” approach in our view correctly recognizes that
not all claims require the same degree of scrutiny, its categorical distinctions fail
to recognize that, even within the hearsay exceptions, a more nuanced approach is
demanded. Rather than invoke a rule based strictly on a category, we conclude
that the better approach is one adopted by other jurisdictions in which they
examine the nature of the ruling at issue in the context of the issues in the case.
Id. at 640 (alteration added).
Indeed, after Saucier, the United States Court of Appeals for the Ninth Circuit in Wagner
v. County of Maricopa, recognized—while leaving the issue unresolved—that the Ninth Circuit
has inconsistently used both de novo and abuse of discretion when reviewing similar hearsay
challenges. 747 F.3d 1048, 1052 (9th Cir. 2013); see also id. at 1054–55 (N.R. Smith, J.,
dissenting) (comparing and citing cases in Ninth Circuit to conclude that “[t]his circuit’s case
law is not entirely clear regarding whether we review de novo a district court’s decision that a
statement is or is not hearsay.” (alteration added)).
Also, after Saucier, and in contrast to the Ninth Circuit’s reluctance to clarify the
standard in Wagner, the Tennessee Supreme Court removed itself from the first trend (i.e., the
majority trend, supra) and fine-tuned its standard of review for hearsay challenges. See Kendrick
v. State 454 S.W.3d 450, 479 (Tenn. 2015) (setting out a standard of review for hearsay rulings
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that illustrates how the standard can change depending on the nature of the ruling and whether
other rules of evidence are in play (e.g., relevancy and unfair prejudice)).
We agree that our standard of review for hearsay challenges requires refinement.
However, as recognized in Saucier, polishing that standard to correctly reflect the complexity of
hearsay rulings is not as simple as changing it to de novo review wholesale—or to a categorical
“hybrid” of de novo and abuse of discretion. Instead, a more nuanced approach is required to
ensure that cold records do not replace the sound discretion and judgment of trial courts where
questions of law are not the crux of a hearsay challenge and ruling. Accordingly, we agree with
the approach in Saucier, and conclude that the nature of the hearsay ruling, and challenge will
determine the appropriate standard of review. To be clear, by this decision we do not jettison the
standard of review we applied in Smalley, Lopez-Orozco, Weaver, and Matter of Doe I, see
supra. Instead, we simply clarify that, moving forward, we will not reflexively apply our abuse
of discretion standard when a hearsay ruling is at issue.
In this case, we are concerned with assignments of error that relate to the definition of
hearsay in Idaho Rule of Evidence 801(c). Trial courts do not have the discretion to admit
evidence that meets the definition of hearsay unless specifically provided for in the Idaho Rules
of Evidence. I.R.E. 802; State v. Ehrlick, 158 Idaho 900, 922, 354 P.3d 462, 484 (2015). None of
the exclusions or exceptions to the hearsay rule are at issue in this case. Thus, we deal only with
whether the challenged evidence meets the definition of hearsay. That familiar definition is
found in Rule 801(c):
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the
statement.
I.R.E. 801(c) (emphasis in original); see also I.R.E. 801(d) (defining “statements” that are “not
hearsay[,]” i.e., excluded from the definition of hearsay).
Under the definition of hearsay, a “ ‘statement’ means a person’s oral assertion, written
assertion, or nonverbal conduct, if the person intended it as an assertion.” I.R.E. 801(a)
(quotations original). Broken into its component parts, trial courts and appellate courts sit in
“exactly the same” position when determining whether evidence is, in the first instance, a
“statement” that “the declarant does not make while testifying at the current trial or hearing[.]”
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See, e.g., State v. Guerra, 169 Idaho 486, 500–01, 497 P.3d 1106, 1120–21 (2021) (providing the
rule for whether implied assertions are “statements” within the definition of hearsay that can be
offered for the truth of the matter they assert). However, trial and appellate courts do not always
sit in “exactly the same” position when it comes to whether the evidence is admitted “to prove
the truth of the matter asserted in the statement” or for another relevant non-hearsay purpose, i.e.,
whether the evidence falls within—or should be taken out of—the last prong of the hearsay
definition. See I.R.E. 801(c)(2).
For example, if a party objects to an out-of-court statement as inadmissible hearsay—and
the evidence is not admitted for a relevant purpose other than its truth—then whether that
evidence does or does not meet the definition of hearsay in Rule 801(c) is a pure question of law.
No predicate factual findings or judgment call is required. Indeed, issuing this ruling is no
different than ruling on the relevancy of evidence under Rule 401. See State v. Garcia, 166 Idaho
661, 669, 462 P.3d 1125, 1133 (2020) (quotations omitted and alteration added) (“The question
of whether evidence is relevant is reviewed de novo[.]”). Thus, like our standard for relevancy,
we review de novo a challenge to this type of hearsay ruling.
In contrast, if the out-of-court statement is admitted for a purpose other than its truth—
thereby taking it outside the definition of hearsay—whether that evidence should or should not
be admitted for a non-hearsay purpose requires a judgment call. See, e.g., State v. Smith, 168
Idaho 463, 477, 483 P.3d 1006, 1020 (2021) (affirming the district court’s exercise of discretion
that an out-of-court statement was offered to impeach a witness’ credibility and not for the truth
of the matter asserted). That judgment call, separate from the issue of whether the non-hearsay
purpose is first relevant, State v. Hill, 161 Idaho 444, 448, 387 P.3d 112, 116 (2016), is best left
to a trial court’s sound discretion. See U.S. Bank Nat. Ass’n ex rel. CW Capital Asset Mgmt. LLC
v. Vill. at Lakeridge, LLC, 138 S.Ct. 960, 967 (2018) (“When an issue falls somewhere between
a pristine legal standard and a simple historical fact, the standard of review often reflects which
judicial actor is better positioned to make the decision.” (internal quotations omitted)). Thus, we
will apply our abuse of discretion standard when a party challenges that judgment call.
With this explanation in mind, Roman-Lopez’s two hearsay challenges require different
standards of review. First, his double hearsay challenge to Detective Turner’s testimony (i.e.,
what Roman-Lopez said his wife instructed) turns on whether Wife’s instruction is a “statement”
that impliedly asserts a fact capable of being proven true. Whether Wife’s instruction is a
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“statement” under the definition of hearsay in Rule 801(c) is a question of law. Thus, we apply
de novo review. Second, the challenge to the admission of Friend’s out-of-court drawing turns on
whether the district court erred in admitting the drawing for a non-hearsay purpose, thereby
taking the drawing outside the definition of hearsay. This challenge, like in Smith, asks us to
question the judgment call made by the district court as to whether the drawing should have been
admitted for a non-hearsay purpose. Thus, we apply our abuse of discretion standard.
2. The district court erred in admitting Wife’s instruction because it was hearsay;
however, the error was harmless beyond a reasonable doubt.
Roman-Lopez first challenges the district court’s admission of certain testimony from
Detective Turner over Roman-Lopez’s double hearsay objection. The challenged testimony (read
in conjunction with a question from the State), was as follows:
[THE STATE]: Okay, and regarding the playing with [Friend] and [Daughter],
did [Roman-Lopez] say, quote, my wife all the time was telling me, hey, don’t
watch movies with those guys?
[DEFENSE COUNSEL]: Objection; hearsay relevance [sic].
THE COURT: What’s the –
[DEFENSE COUNSEL]: Double hearsay, I guess, within the State’s exception.
[THE STATE]: It’s a quote from the defendant regarding him watching movies
with [Friend] and [Daughter].
THE COURT: Overruled.
[THE STATE]: And so –
[DETECTIVE TURNER]: Yes, he did say that.
(Alterations and emphasis added.)
The first level of potential hearsay—what Detective Turner testified Roman-Lopez
said—is not at issue. The parties agree that that testimony is admissible under the “party-
opponent” exclusion to the definition of hearsay in Idaho Rule of Evidence 801(d)(2).
Instead, Roman-Lopez challenges the second layer of potential hearsay: that his wife
said: “[H]ey, don’t watch movies with those guys [referring to Friend and Daughter].”
(Alterations added.) Roman-Lopez argues that based on the understanding of what constitutes a
“statement” and “assertion” in State v. Guerra, 169 Idaho 486, 500–01, 497 P.3d 1106, 1120–21
(2021), the instruction from Wife contains an implied assertion of fact; thus, it meets the
definition of hearsay under Rule 801(c). From this, Roman-Lopez argues the district court erred
in admitting Wife’s instruction because the State did not make an offer of proof that it: (1) was
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offered for a relevant purpose other than its truth; (2) fell under an exclusion to the definition of
hearsay in Rule 801(d); or (3) fell under an exception to the rule against hearsay in Rules 803 or
804. In response, the State argues that Wife’s instruction lacks any assertion; thus, it is not a
“statement” under Rule 801(a) and does not meet the definition of hearsay. The State maintains
that Wife’s instruction is no different than the officer’s “verbal directions” in State v. McDonald,
141 Idaho 287, 288, 108 P.3d 434, 435 (Ct. App. 2005), or the “request” in State v. Salinas, 134
Idaho 362, 366, 2 P.3d 747, 751 (Ct. App. 2000). We conclude that Roman-Lopez’s view is
correct.
In this challenge, Guerra controls, and from its application, Wife’s instruction meets the
definition of hearsay under Rule 801(c). The general rule is that commands, instructions, and
requests do not contain “assertions” of fact with a truth-value; thus, they are not “statements”
under the definition of hearsay. See, e.g., McDonald, 141 Idaho at 288–89, 108 P.3d at 435–36
(holding that instructions or commands are not “declarative” and do not have any “truth-value”);
Salinas, 134 Idaho at 366, 2 P.3d at 751 (holding that the renter’s communication to the officer
was a “request” that “contained no assertion of any fact” that could be offered for the truth of
some matter asserted).
However, in Guerra, we clarified that commands, instructions, and requests can
constitute hearsay “if the circumstances and/or wording demonstrate an intent to assert[.]” 169
Idaho at 501, 497 P.3d at 1121. In Guerra, we held that a police officer’s testimony that Guerra’s
medication bottle stated, “take due caution when operating a motor vehicle, heavy equipment”
was hearsay because it impliedly asserted that the medication in that bottle can impair the user’s
ability to drive a car or use heavy equipment. Id.
Here, Wife’s instruction meets the definition of hearsay because it contains an implied
assertion of fact. Based on its wording, the challenged phrase: “[H]ey, don’t watch movies with
those guys[,]” communicates at least two things. First, it instructs Roman-Lopez to do
something. Second, and more importantly, it impliedly asserts a fact that could be true or false:
that Roman-Lopez engaged in inappropriate conduct while watching movies with Friend and
Daughter. Thus, in applying a de novo standard of review, Detective Turner’s testimony as to
Wife’s instruction constituted a second level of hearsay. Because the instruction was not
admitted for a non-hearsay purpose, and the State did not offer any exception or exclusion, the
district court erred in admitting it.
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Nevertheless, we conclude that the error in admitting Wife’s instruction was harmless
beyond a reasonable doubt. Under the harmless error test, if a defendant establishes the existence
of an error, the burden shifts to the State to show beyond a reasonable doubt that the error
complained of did not contribute to the verdict rendered, i.e., that the error was harmless. Garcia,
166 Idaho at 673, 462 P.3d at 1137. “Harmless error is ‘error unimportant in relation to
everything else the jury considered on the issue in question, as revealed in the record.’ ” Id. at
674, 462 P.3d at 1138 (quoting Yates v. Evatt, 500 U.S. 391, 403 (1991)). To determine whether
an error was harmless, the Court must weigh “the probative force of the record as a whole while
excluding the erroneous evidence and at the same time comparing it against the probative force
of the error.” Garcia, 116 Idaho at 674, 462 P.3d at 1138. “When the effect of the error is
minimal compared to the probative force of the record establishing guilt ‘beyond a reasonable
doubt’ without the error, it can be said that the error did not contribute to the verdict rendered
and is therefore harmless.” Id. (quoting Yates, 500 U.S. at 404–05).
While the admission of Wife’s instruction provided contemporaneous corroboration of
Friend’s and Daughter’s testimony that they had previously watched movies with Roman-Lopez,
the effect of the error in admitting that evidence was minimal when compared to the probative
force of the record establishing Roman-Lopez’s guilt beyond a reasonable doubt without the
error. Friend and Daughter both testified at trial in great detail about years of sexual abuse
perpetrated by Roman-Lopez. Friend’s mother also testified to circumstances that mainly
demonstrated Roman-Lopez’s opportunity to commit the acts alleged by Friend. When Daughter
testified, she corroborated Friend’s testimony that Roman-Lopez would often watch movies with
them in the same locations with a blanket over Friend and Roman-Lopez. As to her own
experience, Daughter testified that when she was between the ages of 8 and 11 (i.e., from 2005
and 2009), she could recall Roman-Lopez touching her chest, “slipping his hand in [her] pants”
to touch her vagina, and also using her feet to rub his penis while watching movies.
Wife also provided testimony that demonstrated Roman-Lopez’s opportunity to commit
the alleged acts and corroborated the girls’ testimony. Wife testified that during the underlying
timeframe, she was working two jobs and would often leave Roman-Lopez home alone with
their children. Wife testified to one instance where she left work, came home, and found Roman-
Lopez cuddling with Friend under a blanket in Daughter’s bedroom. Wife also testified that
when Roman-Lopez returned from the interview with Detective Turner in September 2014,
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Roman-Lopez said: “You pay for everything you do in this life.” Wife testified that when
Daughter confronted Roman-Lopez that night, Roman-Lopez stated: “Forgive me. I didn’t know
I was hurting you.” Wife testified that by the morning after the September 2014 interview,
Roman-Lopez had fled the area without taking his phone or car.
Notably, the “principal purpose” underlying the policy behind the rule against hearsay is
to assure that the veracity of a statement (assertion) is subject to testing through an adequate
opportunity for cross-examination of its declarant. State v. McPhie, 104 Idaho 652, 655, 662 P.2d
233, 236 (1983). Here, after Detective Turner testified to Wife’s instruction—Wife testified at
trial. While she was on the stand, Roman-Lopez had the opportunity to cross-examine Wife on
whether she had previously instructed Roman-Lopez to not watch movies with Friend and
Daughter. Thus, while it was error for the district court to admit it, the harmlessness of the error
is also evident in the fact that—unlike the problem typically caused by hearsay—Roman-Lopez
was not deprived of an adequate opportunity to cross-examine the statement’s declarant.
Finally, Detective Turner, who interviewed Roman-Lopez before he absconded, testified
that Roman-Lopez admitted to watching T.V. and movies with Friend and Daughter in the living
room (on the couch), and in his bedroom (on his bed). Roman-Lopez denied touching Friend, or
that he made her touch his penis with her hands. However, Detective Turner testified that
Roman-Lopez admitted that Friend had touched his penis with her feet “two or three times” and
that “it was possible that he was intoxicated one day and [that] he just doesn’t remember.”
Detective Turner testified that after the interview, Roman-Lopez did not show up to his
scheduled shift for work and was not located again until 2019, roughly five years later.
In closing arguments, the prosecutor correctly noted that there were no prior inconsistent
statements that impeached Friend’s or Daughter’s version of events, and that Roman-Lopez’s
“flight” served as evidence of his “consciousness of guilt.” In sum, the minimal effect of the
error of admitting Wife’s instruction not to watch movies with the girls does not outweigh the
probative force of the remaining evidence that established Roman-Lopez’s guilt beyond a
reasonable doubt, all admitted without the error. Thus, the error in admitting Wife’s instruction
was harmless beyond a reasonable doubt.
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3. The district court did not abuse its discretion in admitting Friend’s prior drawing
for the non-hearsay purpose of illustrating Friend’s in-court testimony.
Roman-Lopez’s second hearsay challenge is aimed at the district court’s admission of an
out-of-court drawing of Roman-Lopez’s home drawn by Friend. Because his hearsay challenge
turns on whether Friend’s drawing was properly admitted for a non-hearsay purpose other than
the truth of the matter it asserts, the standard of review is abuse of discretion.
Friend’s drawing depicts, without purporting to portray architectural exactness or
dimensional accuracy, the layout of the living room and bedroom in Roman-Lopez’s home:
Roman-Lopez’s hearsay objection arose during the following exchange, followed by use
of, and reference to, the drawing to aid Friend in illustrating her testimony to the jury:
[THE STATE]: Okay. And during that CARES interview, did you draw a picture
of the interior of the home of the living room and the bedroom where this abuse
occurred?
[FRIEND]: Yeah.
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[THE STATE]: And if you saw that picture again, would you recognize that?
[FRIEND]: Yeah.
[THE STATE]: Okay. I’m going to hand you what’s been marked as State’s
Exhibit No. 2. [Friend], do you recognize that?
[FRIEND]: Yeah.
[THE STATE]: And what is that?
[FRIEND]: A drawing of the living room and the bedroom.
[THE STATE]: Okay. And is that a true and accurate copy of the drawing you
made during back [sic] in 2014 during that CARES interview?
[FRIEND]: Yes.
[THE STATE]: The State moves to admit and publish State’s Exhibit No. 2.
[DEFENSE COUNSEL:] Your Honor, I’m going to object seeing that was drawn
outside the presence of a courtroom. I think it can stand as a statement in and of
itself.
THE COURT: She drew a map outlining the house?
[THE STATE]: Yes, the locations where this occurred.
THE COURT: Okay.
[DEFENSE COUNSEL]: She reported it—just for the record, she reported it was
done in the CARES interview, which we haven’t heard more about. If the court
does allow it in for demonstrative purposes?
THE COURT: It’s not being offered for demonstrative purposes.
[DEFENSE COUNSEL]: So then we’ll object as hearsay, Your Honor.
THE COURT: It’s not hearsay. It was prepared by the witness. She has properly
identified it, and it is relevant. The objection is overruled. It may be admitted.
(State’s Exhibit 2 admitted.)
[THE STATE]: Permission to publish?
THE COURT: Go ahead.
[THE STATE]: [Friend], up there you have a pointer. Okay? And I’m going to ask
you to walk us through this drawing. So starting in the living room, where is the
living room?
[FRIEND]: Up here.
[THE STATE]: So on the top portion of the page?
[FRIEND]: Yeah.
[THE STATE]: And then what about the bedroom?
[FRIEND]: Right here.
14
[THE STATE]: And so I want to identify, starting with the living room—okay.
Thank you, Madam Clerk—identify the articles that you’ve designated the living
room.
[FRIEND]: Well, this was the couch across from the TV. This is where I and
[Daughter] [sic] and the other couch was [sic] [brother]. And this is our blanket.
[THE STATE]: Okay. And the item that you identified as the couch—and it looks
like it says [“]me[.”] So that would be you and then [Roman-Lopez] would be
next to you?
[FRIEND]: Yes.
[THE STATE]: And the blanket?
[FRIEND]: Yes.
[THE STATE]: So is that where he would cause you to rub his penis and he
would touch your vagina?
[FRIEND]: Yeah.
[THE STATE]: On the couch right there?
[FRIEND]: Yeah.
[THE STATE]: Okay. And moving down into the bottom half of the page, what is
that?
[FRIEND]: There is the bed where [Daughter’s brother] would sit on the floor
right here in front of the TV, and [Daughter] would lay on the side, and this is
where [Roman-Lopez] would lay behind me.
[THE STATE]: And it looks like in this drawing [Roman-Lopez] [is] all the way
against—well, as we look at it, it would be the—
[FRIEND]: On the opposite side of the bed.
[THE STATE]: And is that where you indicated he would put his penis between
your legs?
[FRIEND]: Yeah.
[THE STATE]: And also cause you to rub his penis?
[FRIEND]: Yeah.
[THE STATE]: Okay. And you would be covered by a blanket?
[FRIEND]: Yes.
[THE STATE]: And then how about when he would place your feet on his penis,
where would you be laying?
[FRIEND]: Down here.
[THE STATE]: Okay. So at the foot of the bed?
[FRIEND]: Yeah.
15
[THE STATE]: Next to [Daughter]?
[FRIEND]: Yeah.
[THE STATE]: Okay. And just to clarify, none of this occurred when—and so
we’re done with that. Thank you. None of this occurred when [Roman-Lopez’s
wife] was in the home?
[FRIEND]: No.
[THE STATE:] Okay. Just one moment, please. [Friend], thank you. I don’t have
any additional questions, but [Defense Counsel] is going to have some additional
questions for you.
(Emphasis and alterations added.)
On appeal, Roman-Lopez argues that because the district court concluded the drawing
was not admitted for demonstrative purposes, but for its truth, it was inadmissible hearsay.
Roman-Lopez contends the district’s court analysis in overruling his hearsay objection was
improper because it only addressed relevance, and mere relevance does not make hearsay
admissible. In response, the State maintains that the drawing, as an out-of-court diagram used to
assist Friend’s in-court testimony, “is not generally considered inadmissible hearsay.” The State
points to numerous cases from other jurisdictions that support this general proposition. In reply,
Roman-Lopez contends that the State is asking this Court to deem Friend’s drawing non-hearsay
pursuant to “historical practice” instead of asking whether the drawing is first admissible under
the Idaho Rules of Evidence. Roman-Lopez maintains that such an approach is contrary to our
decision in State v. Kralovec, 161 Idaho 569, 574, 388 P.3d 583, 588 (2017), where we rejected
the historical approach of admitting res gestae evidence in favor of requiring that evidence be
first admissible through the Idaho Rules of Evidence.
Before the Idaho Rules of Evidence (including Rule 801) became effective on July 1,
1985, we considered out-of-court drawings, photographs, or maps—if “offered as substantive
evidence, e.g., to prove the facts and details shown therein”—to be “hearsay evidence[.]”
Dawson v. Olson, 97 Idaho 274, 280, 543 P.2d 499, 505 (1975) (alteration added). Conversely, if
the same was offered or admitted for illustrative purposes as an aid to the witness’ in-court
testimony, we did not consider it hearsay so long as the witness (1) had personal knowledge of
the information visualized therein; and (2) adopted the visualized information as their own to
communicate what might be difficult to convey through words or gestures alone:
Photographs, maps, and other drawings, are recognized as proper evidence
to supplement the testimony of witnesses where the subject matter of the
16
testimony is difficult to portray without such aids, or where the jury can be given
a better understanding of the physical facts with which they are concerned. Their
admission is proper to illustrate the testimony. They are also regarded as a proper
means of expressing the witness’ testimony. That is, a witness may be unable, by
means of words or gestures alone, to convey to the jury an accurate understanding
or picture of the relative position of the physical objects or their physical
characteristics, without the assistance of photographs or drawings. So, he may
make a drawing or a photograph, or identify and adopt such drawing or
photograph, made by another, as a means of portraying to the jury facts which are
within his knowledge, and which he is not as well able to portray without such
help.
Id. (quoting McKee v. Chase, 73 Idaho 491, 501–02, 253 P.2d 787, 792–93 (1953)); see also
Zolber v. Winters, 109 Idaho 824, 828, 712 P.2d 525, 529 (1985) (reiterating this rule within a
relevancy challenge three months after I.R.E. 801 first took effect).
For example, in Hook v. Horner, this Court held that the trial court properly rejected the
plaintiff’s attempt to admit a survey prepared in 1940, despite it being offered by the plaintiff for
“illustrative purposes”—because “there [was] no intimation in either the record or the briefs”
that it was introduced to help a witness “relate his testimony to the court.” 95 Idaho 657, 660,
517 P.2d 554, 557 (1973). The Court reasoned that the survey was “apparently offered for no
other purpose than to establish various measurements” contained within it, i.e., its truth, and was
not used to portray facts within the personal knowledge of any witness. Id. at 660–61, 517 P.2d
at 557–58. Thus, the survey was “hearsay” as an “out-of-court statement of a person not under
oath and not subject to cross-examination[.]” Id.
Although we have not explicitly addressed this principle since the Idaho Rules of
Evidence first took effect, its continuing applicability can be seen in the context of our decisions
dealing with foundation and relevance. See, e.g., State v. Hall, 163 Idaho 744, 780, 419 P.3d
1042, 1078 (2018) (quoting Zolber v. Winters, 109 Idaho at 8328, 712 P.2d at 529, for the above
principle and holding that there was adequate foundation for the admission of reenactment
photos used for illustrative purposes to aid the reenactment testimony of an expert witness); State
v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993) (holding that a diagram of a living
room, admitted for “illustrative purposes only” and offered through the testimony of a police
officer with personal knowledge of the living room, was relevant and admissible to serve as a
visual aid to the officer’s testimony).
17
In addition, our pre-Idaho Rules of Evidence approach in Dawson and Zolber is
consistent with the approach taken in other jurisdictions when a party objects to an out-of-court
drawing as hearsay. See, e.g., Boudreaux v. State, 631 S.W.3d 319, 336 (Tex. App. 2020)
(holding that an accident site diagram, prepared out-of-court, was not hearsay where it was
offered through an in-court witness who adopted it as his own based on his personal knowledge
of the accident scene); State v. Furlough, 797 S.W.2d 631, 647 (Tenn. Crim. App. 1990) (“As
long as the witness has personal knowledge of the subject matter and the diagram is accurate,
drawings drafted out of court are admissible despite the hearsay rule. The in-court authentication
of the drawing is the assertion permitting cross-examination of its accuracy.”).
And when we turn to secondary authorities on evidence, our pre-Idaho Rules of Evidence
approach is also echoed. For example, McCormick explains that demonstrative or illustrative
aids may be created outside of court, or by the witness on the stand, and are generally
admissible—subject to an unfair prejudice objection—under the theory that they “illustrate and
explain live testimony” of what that witness is trying to describe. See 2 MCCORMICK ON EVID.
§ 214 (8th ed.). In other words, when the drawing is admitted for demonstrative or illustrative
purposes, “the witness’ testimony is the evidence and the map or diagram is merely an aid to its
understanding.” 29A Am. Jur. 2d Evidence § 981 (emphasis added). Thus, the drawing is not
hearsay because it is not an out-of-court statement admitted to establish a particular fact. See id.
Importantly, this “must be distinguished” from admitting an out-of-court drawing for its
truth as substantive evidence without it being offered to aid the testimony of an in-court witness
with personal knowledge of what it depicts. See id. When the out-of-court drawing is admitted
for its substance, “the instrument possesses within itself evidential characteristics tending to
establish a particular fact[.]” Id. And without an in-court witness who has personal knowledge of
that fact—the declarant of that fact is out-of-court, not subject to cross examination. In that
context, the out-of-court drawing would meet the definition of hearsay to the extent it contains
out-of-court statements offered for their truth.
In sum, an out-of-court drawing does not meet the definition of hearsay under Idaho Rule
of Evidence 801(c) if it is (1) admitted for illustrative purposes; (2) the witness has personal
knowledge of what is depicted; and (3) the witness utilizes the drawing to aid the understanding
of testimony that may otherwise be difficult to comprehend through words or gestures alone. See
Dawson, 97 Idaho at 280, 543 P.2d at 505. When these requirements are met, any “statements”
18
in the drawing are, in effect, indistinguishable from the witness’ in-court testimony that is
immediately subject to cross-examination. Accordingly, Roman-Lopez’s “historical practice”
argument and reliance on Kralovec is misplaced. When the above requirements are met, the out-
of-court drawing is first admissible through the Idaho Rules of Evidence (subject of course to a
relevancy or unfair prejudice objection) because the rule against hearsay in Idaho Rule of
Evidence 802 does not bar its admission.
With this clarification, we turn to the district court’s ruling. At first glance, the district
court appears to have admitted Friend’s drawing not for illustrative purposes under the
requirements above, but for its truth. When Roman-Lopez initially objected, the district court
concluded—without inquiring of the prosecutor—that Friend’s drawing was “not being offered
for demonstrative purposes.” Roman-Lopez then objected to the drawing as hearsay, but the
district court overruled the objection and admitted the drawing, using reasoning in tension with
its earlier conclusion: “It’s not hearsay. It was prepared by the witness. She has properly
identified it, and it is relevant.”
On appeal, Roman-Lopez essentially asks us to focus on the first ruling as dispositive.
However, such a narrow approach would require us to blind ourselves to the surrounding record.
Cf. State v. Dunlap, 155 Idaho 345, 364, 313 P.3d 1, 20 (2013) (explaining that jury instructions
are not “judged in artificial isolation, but must be considered in the context of the instructions as
a whole and the trial record.” (citations omitted)). When we consider both rulings, and how
Friend utilized the drawing to aid her testimony once the district court overruled the hearsay
objection, Friend’s out-of-court drawing was clearly admitted for illustrative purposes. For
example, after the drawing was published, the prosecutor indicated Friend had a “pointer” she
could use to “walk us through the drawing.” As Friend testified, she repeatedly referred to, and
incorporated, depictions in the drawing to assist the jury in understanding her overall testimony
about events in the living room and bedroom. Unlike the survey offered in Hook to establish a
fact contained therein, nothing in the record suggests the drawing was admitted to establish a fact
asserted in the drawing that was not already part of Friend’s in-court testimony.
In sum, the record reflects that Friend’s drawing contains a visual depiction of facts
within Friend’s personal knowledge, and that Friend testified to those facts in-court using the
drawing as a visual aid for the jury to understand her testimony. Although the district court’s first
ruling muddles its second ruling, when the record is viewed as a whole, the district court plainly
19
admitted Friend’s drawing for the non-hearsay purpose of illustrating Friend’s in-court testimony
consistent with the requirements set out above. Thus, the district court acted (1) within the
boundaries of its discretion, (2) consistently with the legal standards applicable to the choices
available to it (i.e., the district court made a judgment call on whether the out-of-court drawing
was being offered for its truth or a non-hearsay purpose), and (3) through an (albeit muddled)
exercise of reason. For these reasons, the district court did not err in admitting Friend’s drawing.
Because Roman-Lopez has only shown one error at trial, we do not reach his cumulative
error argument. See State v. Ahmed, 169 Idaho 151, 169, 492 P.3d 1110, 1128 (2021) (“[A]
necessary predicate to the application of the [cumulative] error doctrine is a finding of more than
one error.” (cleaned up) (quoting State v. Perry, 150 Idaho 209, 230, 245 P.3d 961, 982 (2010)).
B. The district court did not abuse its discretion by failing to redline certain
information in the PSI that Roman-Lopez disputed.
Roman-Lopez’s final challenge is that the district court erred in not granting his request
to redline certain information in the PSI that the district court allegedly “accept[ed]” as incorrect
or unreliable. The State responds that Roman-Lopez’s argument is based on a false premise
because the record does not reflect the court “accept[ed]” the proposed correction; thus, the court
had no duty to redline PSI and make the proposed correction. The State is correct.
“The sentencing court, in its discretion, may consider information, which would
otherwise be inadmissible at trial, such as hearsay, as long as the court believes the information
is reliable and the defendant has an opportunity to present favorable evidence and to explain or
rebut adverse information.” State v. Granger, 170 Idaho 136, __, 508 P.3d 335, 340 (Ct. App.
2022). “A district court’s denial of a motion to strike or delete portions of a PSI is reviewed on
appeal for an abuse of discretion.” State v. Molen, 148 Idaho 950, 961, 231 P.3d 1047, 1058 (Ct.
App. 2010). For the four-part abuse of discretion test, see, Herrera, 164 Idaho at 270, 429 P.3d at
158 (quoting Lunneborg, 163 Idaho at 863, 421 P.3d at 194), supra.
At the sentencing hearing, the district court first explained that it made a correction to the
PSI to reflect that Roman-Lopez is not an American citizen. Afterwards, the district court
inquired of the parties whether there were any other proposed corrections. The State did not
request any additional corrections, but Roman-Lopez proposed “a few disagreements” with, or
“corrections” to, the PSI—to which the district court answered, “All right”:
20
THE COURT: . . . . Are there any changes or corrections to the presentence
materials? I did think the body of the report seems to say that he is not an
American citizen?
[DEFENSE COUNSEL]: That’s correct, Your honor.
THE COURT: So I did make that correction. Anything from the State?
[THE STATE]: I don’t think anything specific, but clearly the PSI investigator
didn’t understand a grand jury versus a jury trial. But I don’t think anything—
THE COURT: Right.
[THE STATE]: —to correct.
THE COURT: Yeah, so there were some issues. All right. How about the
defense?
[DEFENSE COUNSEL]: Your Honor, Mr. Roman-Lopez has a few
disagreements or corrections with the PSI. The primary of note that he would like
the Court to be aware of is on page 7, and I believe that’s under prior record
comments, the last few paragraphs above family history. Mr. Roman-Lopez
disagrees with the wording and indicates some information about him refusing to
be moved to essentially a lower security dorm a few times. He just wants the
Court to know that, one, he is in the dorms now. I’m sure the Court is aware, they
can see he’s an inmate worker. So he’s in the more lower security dormitories
now. He just indicates that if he was asked to move to the dorms, it was a
miscommunication. He was unaware of ever being made that offer when he—
immediately when he qualified, he moved to the dorms.
THE COURT: All right.
[DEFENSE COUNSEL]: So he has that correction, and if I may have just one
moment to make sure I’m not missing any other major correction at the moment.
Your Honor, I believe any other issue may be a disagreement with the facts of the
case. I think that’s our only correction of fact.
THE COURT: All right. Will there be testimony by the State?
[THE STATE]: No, Your Honor. But I would let you know that [], the victim, is
here.
THE COURT: Does she wish to make a statement?
[THE STATE]: She doesn’t.
THE COURT: Okay. Any testimony by the defense?
[DEFENSE COUNSEL]: No, Your Honor, just argument and a statement from
Mr. Roman-Lopez.
(Alterations and emphasis added.)
After argument as to sentencing, Roman-Lopez made a statement and asked for probation
instead of an imposed sentence—but he did not provide any testimony to rebut the information
21
he challenged as inaccurate or unreliable in the PSI. As reflected by the PSI in the record, the
district court did not redline the information Roman-Lopez challenged.
“When considering a PSI, the sentencing court has two distinct obligations. First, the
court must reject consideration of inaccurate, unfounded, or unreliable information in the PSI.”
Granger, 170 Idaho at __, 508 P.3d at 340. “Second, the court must redline from the PSI
information it is excluding as inaccurate or unreliable.” Id. “This procedure not only ensures a
clear record for review but also protects the defendant against misuse of the unreliable
information in the future.” State v. Rodriguez, 132 Idaho 261, 262 n.1, 971 P.2d 327, 328 n.1 (Ct.
App. 1998). However, before the sentencing court can run afoul of these obligations, a defendant
must meet four requirements. See Granger, 170 Idaho at __, 508 P.3d at 340–42.
First, the defendant “must specifically identify the information in the PSI claimed to be
inaccurate, unfounded, or unreliable.” Id. at __, 508 P.3d at 340. This requirement is satisfied if
the defendant does so through an objection, a motion to strike, or in response to the sentencing
court’s inquiry of the parties to identify any proposed corrections. Id.
Second, a defendant “must demonstrate the challenged information is inaccurate,
unfounded, or unreliable.” Id. at __, 508 P.3d at 341. If the challenged information is facially
speculative or unreliable, it should generally be stricken “absent an explanation from the
presentence investigator” explaining why it is not speculative or is reliable. Id. If the information
is facially reliable, “the defendant may present evidence during the sentencing hearing to support
the assertion the challenged information is inaccurate or unreliable.” Id. To satisfy this
requirement, a defendant may offer “his own rebuttal to the disputed information” or subpoena
“the sources of the disputed information for cross-examination.” Id. The sentencing court “is not
required to strike or disregard information in the PSI simply because the defendant disputes the
information.” Id. Only when the sentencing court “determines the challenged information is
inaccurate or unreliable does the duty to ‘redline’ the information in the PSI arise.” Id. at __, 508
P.3d at 340–41.
“Third, the defendant must obtain a definitive ruling from the sentencing court
determining whether such information is or is not inaccurate or unreliable.” Id. at __, 508 P.3d at
341. For example, when a defendant brings a challenge on appeal that the sentencing court
improperly failed to redline the PSI, “the record must reveal an adverse ruling that forms the
basis for assignment of error.” Id. at __, 508 P.3d at 342.
22
“Finally, the defendant has the burden to ensure the sentencing court appropriately
documented its rulings on the PSI in the record—both for purposes of appeal and of future
distribution of the PSI.” Id. This serves the well-settled rule that “[i]n the absence of an adequate
record on appeal, an appellate court will not presume error.” Hall, 163 Idaho at 832, 419 P.3d at
1130 (alteration added).
When these requirements are applied to Roman-Lopez’s redlining request, his challenge
is without merit. As to the first requirement, Roman-Lopez did identify the information in the
PSI that he challenged as incorrect. However, as to the second requirement, Roman-Lopez did
not carry his burden to demonstrate the facially reliable information in the PSI was incorrect.
Indeed, Roman-Lopez placed no evidence before the district court—by way of his own
testimony or other evidence—so that the district court could find in his favor and accept his
correction.
When we turn to the third requirement, Roman-Lopez also failed to obtain a definitive
adverse ruling from the district court on his proposed correction. Instead, Roman-Lopez contends
the district court unequivocally “accepted” his proposed correction. The record does not bear this
out. After Roman-Lopez made his proposed correction, the district court simply replied, “All
right.” This is not enough to show the district court “accepted” his proposed correction, or that
the district court ruled adversely to it. Roman-Lopez heavily relies on a sentencing court’s use of
“all right” in State v. Golden, 167 Idaho 509, 473 P.3d 377 (Ct. App. 2020) to support his
contention that “all right” means the district court in this case “accepted” his proposed
corrections. However, Roman-Lopez’s reliance on Golden is misplaced.
In Golden, the sentencing court solicited corrections to a PSI, and in response to
corrections proposed by defense counsel, the court replied “all right” as it looked at a copy of
that PSI. 167 Idaho at 512, 473 P.3d at 380. Regarding one of the proposed corrections, the
prosecutor agreed that the PSI incorrectly included an attempted murder charge and acquittal
related to a different person with the same name as Golden. Id. In addition, before defense
counsel began listing proposed corrections, the sentencing court said, “All right. Just let me
know which page so I can note the changes on the record.” Id. However, on appeal, the record
did not reflect those changes. Id. The Court of Appeals remanded the case so that the sentencing
court could make the changes it clearly intended to make (and, indeed, seemed to make on a hard
copy of the PSI according to the Court of Appeals). Id. Contrary to Roman-Lopez’s suggestion,
23
the use of “all right” by the sentencing court in Golden does not thereby transform the use of “all
right” by the district court in this case into an acceptance of his proposed corrections. Instead, as
the Court of Appeals recently clarified, Golden is an example of a case where “changes
obviously ordered by the court” did not appear in the appellate record. Granger, 170 Idaho at __,
508 P.3d at 342.
In sum, Roman-Lopez has not shown the district court’s duty to redline was triggered and
that it erred in not redlining his proposed corrections. Instead, the district court acted consistently
with the standards applicable to the choices available to it when it heard Roman-Lopez’s
proposed corrections, and in the absence of any supporting evidence from Roman-Lopez, it did
not redline the PSI or rule on his proposed corrections. Thus, Roman-Lopez is not entitled to a
remand on this issue because he has not shown that the district court abused its discretion.
IV. CONCLUSION
For the reasons discussed above, Roman-Lopez’s judgment of conviction is affirmed.
Chief Justice BEVAN, and Justices STEGNER, MOELLER, and ZAHN, CONCUR.
24