State v. Salazar

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 37832

STATE OF IDAHO, )
) 2012 Opinion No. 9
Plaintiff-Respondent, )
) Filed: February 13, 2012
v. )
) Stephen W. Kenyon, Clerk
LAZARUS SALAZAR, )
)
Defendant-Appellant. )
)

Appeal from the District Court of the Third Judicial District, State of Idaho,
Canyon County. Hon. James C. Morfitt; Hon. Bradly S. Ford, District Judges.

Judgment of conviction and sentences for two counts of aggravated
battery, affirmed.

Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
________________________________________________
LANSING, Judge
Lazarus Salazar appeals from the judgment of conviction entered upon a jury verdict
finding him guilty of two counts of aggravated battery. He contends the trial court erroneously
admitted a detective’s testimony identifying Salazar as the person shown in a security system
photograph taken during the offense. He also asserts that his sentences are excessive.
I.
BACKGROUND
On March 6, 2009, two rival gangs fought outside the entrance of a Nampa grocery store.
During the fight, which was captured on the store’s video surveillance system, one of the men
from the first gang stabbed two men from the second gang. Law enforcement concluded that
Salazar was the perpetrator of the stabbings. He was charged with two counts of aggravated
battery, Idaho Code §§ 18-903(a), 18-907(a)(b); with two corresponding deadly weapon sentence

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enhancements, I.C. § 19-2520; and two enhancements for committing the batteries with the
intent to promote the activities of a criminal gang, I.C. § 18-8503.
The store’s security videos show that the man who stabbed the two victims had a shaved
head and sported a goatee. During Salazar’s trial, a police detective was presented with a still
picture of this man taken from one of the surveillance videos. Over Salazar’s objection, the
detective was allowed to testify that he recognized the person shown in the photo as Salazar.
Salazar was found guilty of all charges. The district court imposed, inclusive of sentence
enhancements, a unified sentence of thirteen years’ imprisonment with five years fixed on one
count and a consecutive unified sentence of twenty-four years with ten years fixed on the other.
Salazar appeals, contending that the court erred in admitting the detective’s identification
testimony and that the court imposed excessive sentences.
II.
ANALYSIS
A. Security Videotape Identification Testimony
The detective’s testimony that he believed the person in the photograph to be Salazar
amounts to lay opinion testimony; it therefore is governed by Idaho Rule of Evidence 701. As
relevant to this case, that rule provides that lay opinion testimony is admissible if it is rationally
based on the perception of the witness, helpful to a determination of a fact in issue, and not based
on scientific, technical, or other specialized knowledge.
In State v. Barnes, 147 Idaho 587, 590-96, 212 P.3d 1017, 1020-26 (Ct. App. 2009), we
addressed the admissibility under Rule 701 of testimony identifying a person in a still picture or
video. We adopted a totality of the circumstances approach and identified a number of factors
that should be considered by a trial court when testimony of this kind is proffered. We said that
the inquiry ultimately is whether there is “some basis for concluding that the witness is more
likely to correctly identify the defendant from the photograph than is the jury.” Id. at 594, 212
P.3d at 1024 (citation omitted). The factors to be examined include the quality of the image. Id.
at 592, 212 P.3d at 1022. That is, if the image is either unmistakably clear or hopelessly obscure,
the witness will be no better suited than the jury to make the identification. Id. A second factor
is whether the defendant’s appearance has changed since the date the image was taken. Id. at
593, 212 P.3d at 1023. When there is evidence that the defendant’s appearance has changed
between the time of the photo’s creation and the time of trial, identification testimony from a

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witness familiar with the defendant’s prior appearance is more likely to be helpful to the jury.
Perhaps the most critical factor is the witness’s level of familiarity with the defendant, which
makes the witness better able than the jury to discern whether the person in the photo is the
defendant. Id. at 592-94, 212 P.3d at 1022-24.
Salazar asserts that the detective’s identification testimony here should have been
disallowed because the State did not lay a foundation showing that the detective had a sufficient
level of familiarity with Salazar to make the detective better equipped than the jury to determine
whether he was the man in the photo. We review a trial court’s conclusion that evidence is
supported by a proper foundation for an abuse of discretion. State v. Sheahan, 139 Idaho 267,
276, 77 P.3d 956, 965 (2003); State v. Groce, 133 Idaho 144, 146, 983 P.2d 217, 219 (Ct. App.
1999).
Salazar asserts that “it is undisputed that [the detective] had one contact with [him],
lasting approximately twenty minutes, three and one-half months after the incident” and
therefore was no better positioned than the jury to make the identification. However, this
argument hinges upon an incomplete depiction of the record. The State’s proffer of the
detective’s lay witness opinion was the subject of two hearings initiated by the prosecutor and
conducted during breaks in the trial. The prosecutor made an oral offer of proof, representing to
the court that the detective would testify that he had met with Salazar for about twenty minutes
approximately three and one-half months after the stabbings and that Salazar then had a shaved
head (like the perpetrator in the photo) and a goatee, which differed from his appearance at trial
because Salazar had since grown his hair out, sported a full mustache, and gained weight. The
prosecutor also told the court that the detective, in his capacity as a police officer, “can say that
he’s met the defendant a number of times and had contacts with him,” but to eliminate the
possibility of unfair prejudice to Salazar from revealing numerous contacts with law
enforcement, the prosecutor did not intend to elicit the number and details of those contacts in
front of the jury. 1

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The prosecutor said that there was also another detective who could be called to identify
Salazar in the photo who had known Salazar since he was in the sixth grade and had a number of
contacts with him, the last such contact having been in 2005. The district court ultimately
declined to allow this second detective’s testimony on the ground that her most recent contact
with Salazar was too remote to satisfy the familiarity requirement.

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In objecting to the detective’s identification testimony, Salazar argued that the detective
had insufficient familiarity with Salazar to make him better able than the jury to determine
whether Salazar was the person in the photo. He also objected that the prejudicial impact of the
evidence would outweigh any probative value. He did not request, in aid of objection,
clarification of the full range of the detective’s contacts with Salazar nor seek leave to question
the detective personally concerning the extent, frequency, or detail of those contacts.
At the second hearing, the district court overruled Salazar’s objection to the testimony.
Applying the Barnes factors, the court found that the quality of the still picture--neither
unmistakably clear nor hopelessly obscure--favored admission of the identity testimony, and that
the prosecutor’s representations of Salazar’s change of appearance also weighed in favor of
admission. The court said that the proposed testimony would be admissible as helpful to the
jury, assuming trial presentation of a proper foundation concerning the detective’s contact with
Salazar and knowledge of Salazar’s change of appearance. It appears that the court determined
that a foundation as had been described by the prosecutor would suffice.
The detective testified immediately after the second hearing. In accord with his stated
intent, the prosecutor did not go into details of the detective’s prior contacts with Salazar, but
instead elicited general testimony that the detective knew Salazar and had interacted with him.
The detective said that he had met with Salazar for about twenty minutes approximately three
and one-half months after the stabbings and that Salazar then had a shaved head and a goatee,
while at trial Salazar had grown his hair out, sported a full mustache, and had gained weight.
The detective then identified the man with the shaved head in the crime scene still photo as
Salazar.
We find no error in the trial court’s determination that the foundation was sufficient for
the detective’s identification testimony. Although the foundational testimony given before the
jury was limited, it referred to a twenty-minute period in which the detective was observing
Salazar at a time when Salazar’s appearance differed from his appearance at trial. Further, the
prosecutor had represented to the court that the detective had multiple additional contacts with
Salazar, which were not described to the jury in order to avoid undue prejudice to Salazar. It
may have been preferable for the court to require that further foundation regarding these
additional contacts be laid through the detective’s testimony outside the presence of the jury, as
permitted by I.R.E. 103(c) and 104(c), but we cannot say that admission of the evidence on the

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foundation actually presented constitutes an abuse of the trial court’s discretion in light of the
prosecutor’s representations and the objective of preventing prejudice to Salazar.
Salazar also posits error in the district court’s rejection of Salazar’s objection that the
probative value of the detective’s identification testimony was outweighed by its unfair
prejudicial impact. This objection was based upon Idaho Rule of Evidence 403, which
authorizes the exclusion of relevant evidence if its probative value would be substantially
outweighed by the risk of unfair prejudice. When a trial court’s application of this balancing test
is challenged on appeal, we examine the decision for an abuse of discretion. State v. Birkla, 126
Idaho 498, 500, 887 P.2d 43, 45 (Ct. App. 1994).
Rule 403 does not offer protection against evidence that is merely prejudicial in the sense
of being detrimental to the party’s case. Nearly all of the State’s evidence in a criminal trial is
presented to prove the defendant’s guilt and, thus, is “prejudicial” to a defendant, but it is not
inadmissible for that reason alone. Rather, evidence is unfairly prejudicial, and therefore subject
to exclusion under Rule 403, if it suggests decision on an improper basis. State v. Pokorney, 149
Idaho 459, 465, 235 P.3d 409, 415 (Ct. App. 2010); State v. Floyd, 125 Idaho 651, 654, 873 P.2d
905, 908 (Ct. App. 1994).
Salazar argues that the detective’s identification lacked probative value because the
detective had insufficient contact with Salazar to make a reliable identification. This is just a
reiteration of his foundation argument that we have rejected above. His argument on unfair
prejudice is that the detective’s identification testimony may have “seemed more valuable to the
jury than it actually was” because of the detective’s position as a law enforcement officer. This,
however, is not a demonstration of unfair prejudice. It is little more than an assertion that the
evidence was detrimental to Salazar’s cause because the jury may have believed the detective’s
testimony. Because Salazar’s claim of lack of probative value is without merit and he has
identified no unfair prejudice from this testimony, the district court did not err in admitting the
detective’s identification testimony over Salazar’s I.R.E. 403 objection.
B. Sentences
The district court imposed consecutive unified sentences of thirteen years with five years
fixed for Count I and twenty-four years with ten years fixed for Count II, aggregating a unified
term of thirty-seven years with fifteen years fixed. Salazar argues that in light of mitigating
factors, his sentences are excessive.

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In order to prevail on a claim that a sentence represents an abuse of discretion, the
defendant must show that in light of the criteria, the sentence was excessive under any
reasonable view of the facts. State v. Charboneau, 124 Idaho 497, 499, 861 P.2d 67, 69 (1993);
State v. Small, 107 Idaho 504, 505, 690 P.2d 1336, 1337 (1984). Where reasonable minds might
differ, the discretion vested in the trial court will be respected, and this Court will not supplant
the views of the trial court with its own. Small, 107 Idaho at 505, 690 P.2d at 1337. In order to
prevail, the appellant must establish that, under any reasonable view of the facts, the sentence
was excessive considering the objectives of criminal punishment: (1) protection of society;
(2) deterrence of the individual and the public generally; (3) the possibility of rehabilitation; and
(4) punishment or retribution for wrongdoing. State v. Stover, 140 Idaho 927, 933, 104 P.3d 969,
975 (2005). Where an appellant contends that the sentencing court imposed an excessively harsh
sentence, we consider the defendant’s entire sentence, State v. Oliver, 144 Idaho 722, 726, 170
P.3d 387, 391 (2007), and conduct an independent review of the record, having regard for the
nature of the offense, the character of the offender, and the protection of the public interest.
State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982).
Salazar was twenty-three years old at the time of his offenses and is a documented gang
member. For one so young, Salazar has amassed a significant criminal record including
convictions for aggravated battery (twice), carrying a concealed weapon, resisting or obstructing
officers, eluding an officer (twice), and disturbing the peace. His first aggravated battery was
committed at age fourteen, when he stabbed someone. In 2005 he was convicted of another
aggravated battery for shooting a rival gang member twice during an altercation that left a
member of Salazar’s own gang dead from a gunshot wound. After he violated probation in that
case, Salazar’s sentence was executed and he served the full term of his sentence. Salazar was
released from prison in February 2009 and committed the present offenses one month later.
After committing the present offenses, but before he was arrested for them, Salazar was charged
with two additional aggravated assaults and a robbery. There had been no disposition of these
most recent charges when Salazar was sentenced in the present case. This record shows Salazar
to be exceptionally violent and dangerous, and undeterred by a previous imprisonment. It does
not show that his sentences for the present aggravated batteries are excessive.

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III.
CONCLUSION
Salazar has shown no error in the admission of the detective’s identification testimony,
nor has he shown that his sentences are excessive. Therefore, the judgment of conviction and
sentences are affirmed.
Chief Judge GRATTON and Judge MELANSON CONCUR.

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