concurring in the result.
I respectfully disagree with the majority view that the evidence of Alsanea’s harassment of his former girlfriend, particularly evidence that he had previously threatened to shoot her and their son, was irrelevant and therefore erroneously admitted. In my view, this evidence was relevant on the issue of Alsanea’s intent when he pulled the gun from his waistband.
Alsanea’s past threats toward the girlfriend were not isolated incidents unrelated to the behavior for which he was charged with assault on the officers. Rather, they were part of an ongoing course of harassment that was still continuing on the evening of December 6, 2000, when the police intervened and thereby became the new focus of Alsanea’s threatening behavior. The evidence of Alsanea’s earlier, but related, conduct suggests that he was not carrying the weapon on the night in question for some innocent purpose but for the purpose of using it to intimidate or do violence. It supports an inference that when he reached for the gun, it was Alsanea’s intent to threaten the officers. Therefore, the evidence was relevant, particularly in view of Alsanea’s claim that he grasped the weapon in order to hand it to the officers. Under Idaho Rule of Evidence 401, evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The testimony about Alsanea’s past threats to shoot the girlfriend and the child meets this threshold. Accordingly, I would hold that the evidence was not erroneously admitted.
I otherwise concur with the lead opinion.