State v. Russell Allen Passons, 158 Idaho 286

Background

Defendant Russell Passons was charged with two counts of aggravated assault (alleging use of a knife) and one count of burglary after store employees confronted him in a parking lot following suspected shoplifting. Video and employee testimony showed he left the store with a stroller and later attempted to take a television; employees testified he pulled a knife and fled.
The State filed notice under I.R.E. 404(b) and introduced evidence of events the next day: Passons returned to a different store with companions to attempt to return the stolen stroller for store credit, was identified, fled from police, crashed, and was arrested; officers recovered the stroller.
Passons objected that the subsequent-day evidence was improper character evidence and unduly prejudicial; the district court admitted it as part of a continuing plan and to show motive, intent, and consciousness of guilt.
During voir dire a prospective juror said Passons’ tattoos showed repeated incarceration; she was excused and Passons moved for mistrial (denied). At trial an officer, unprompted, mentioned pursuing a robbery suspect; the court sustained an objection, gave a curative instruction, and denied Passons’ mistrial motion.
The jury convicted Passons of one burglary and two aggravated assaults; the court found use of a deadly weapon but declined to find persistent violator status. Passons appealed, arguing erroneous admission of other-acts evidence and denial of mistrials.

Issues

Issue	State's Argument	Passons' Argument	Held
Admissibility of next-day conduct under I.R.E. 404(b)	Evidence showed a plan/motive (steal then return for credit), intent to steal the TV, and consciousness of guilt; thus relevant and probative	Evidence was impermissible character evidence and, if admissible, was unfairly prejudicial outweighing probative value	Admission of the attempted return of the stroller and flight as consciousness of guilt upheld; flight was admissible; overall no abuse of discretion
Relevance of returning stroller to burglary intent	Returning stroller shows a plan to steal items and later return them for credit, supporting specific intent to steal when re-entering	Returning the stroller the next day is temporally remote and irrelevant to prior intent	Returning the stroller was relevant to intent/motive for burglary and admissible
Relevance of flight to officers	Flight shows consciousness of guilt for multiple offenses and is admissible to show knowledge/guilt	Flight was unrelated to intent for the prior-day burglary/assaults and unfairly prejudicial	Flight was admissible to show consciousness of guilt; alternative motives go to weight, not admissibility
Denial of mistrial for juror/officer statements	Juror was excused and court questioned jurors about bias; officer statement was corrected by a curative instruction; neither caused reversible error	Juror’s tattoo-based comment and officer’s reference to a robbery were prejudicial and warranted mistrial	Denial affirmed: juror excused and taint minimal; curative instruction addressed officer remark; no reversible error

Key Cases Cited

State v. Grist, 147 Idaho 49, 205 P.3d 1185 (discussing I.R.E. 404(b) framework)
State v. Avila, 137 Idaho 410, 49 P.3d 1260 (other-acts evidence and propensity limits)
State v. Pepcorn, 152 Idaho 678, 273 P.3d 1271 (other-acts may be admissible for motive, intent, plan)
State v. Parmer, 147 Idaho 210, 207 P.3d 186 (404(b) admissibility and standards)
State v. Sheldon, 145 Idaho 225, 178 P.3d 28 (appellate review of relevancy under 404(b))
State v. Norton, 151 Idaho 176, 254 P.3d 77 (trial court’s balancing reviewed for abuse of discretion)
State v. Brummett, 150 Idaho 339, 247 P.3d 204 (prior thefts relevant to intent to steal on re-entry)
State v. Pokorney, 149 Idaho 459, 235 P.3d 409 (flight admissible to show consciousness of guilt)
State v. Rossignol, 147 Idaho 818, 215 P.3d 538 (alternative motives affect weight not admissibility of flight evidence)
State v. Urquhart, 105 Idaho 92, 665 P.2d 1102 (standard for reviewing denial of mistrial)
State v. Pierce, 107 Idaho 96, 685 P.2d 837 (correct rulings may be sustained on proper legal theory)
State v. Ellington, 151 Idaho 53, 253 P.3d 727 (denial of mistrial where jurors indicated bias reversed by limiting instruction)
State v. Kilby, 130 Idaho 747, 947 P.2d 420 (presumption juries follow curative instructions)
State v. Hudson, 129 Idaho 478, 927 P.2d 451 (same presumption regarding jury instructions)