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IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 25688 ) STATE OF IDAHO, ) ) Plaintiff-Respondent, Boise, April 2008 Term ) ) v. 2008 Opinion No. 98 ) ) EDWARD JOHN STEVENS, Filed: July 23, 2008 ) ) Defendant-Appellant. Stephen W. Kenyon, Clerk ) ) ) Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Daniel T. Eismann, District Judge. Judgment and conviction for first-degree murder, affirmed. Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Jason Curtis Pintler, Deputy Public Defender argued. Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K. Jorgensen, Deputy Attorney General argued. __________________________________ BURDICK, Justice Appellant Edward Stevens appeals from his conviction for first-degree murder and the denial of his motion for a new trial. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND Eleven month old Casey Whiteside died on December 27, 1996, from a fatal head injury. Stevens, Casey's mother's boyfriend, was caring for him at the time Casey sustained the head injury. Stevens was charged with murder in the first degree for killing Casey during the course of committing aggravated battery. Although Stevens claimed that he fell asleep and awoke to find Casey unresponsive on the hardwood floor at the bottom of the stairs in the home, the State argued that Stevens violently shook Casey and slammed Casey's head into the edge of a bathtub causing a massive and fatal head injury. 1

Stevens's first trial resulted in a mistrial after the jury could not return a verdict. The jury in Stevens's second trial found him guilty. At that trial, both the State and the defense presented expert witnesses to support their theories of the case. One of the State's experts, Saami Shaibani, used a videotape of computer generated objects falling down stairs to illustrate his testimony that Casey could not have received his injuries from such a fall down stairs. Although the defense objected to the introduction of this video, the district court denied its motion. Additionally, evidence was presented that Casey was taking the reflux drug Propulsid and an antibiotic at the time of his death, and that injuries to Casey's eyes were indicative of shaken baby syndrome. After his conviction, Stevens appealed to this Court. However, prior to oral argument Stevens moved for a new trial based on newly discovered evidence, and his appeal was suspended pending the district court's decision on that motion. The district court denied

Stevens's motion for a new trial, and Stevens filed additional briefs with this Court, withdrawing his earlier arguments. II. ANALYSIS Stevens first argues that the district court erred when it admitted a videotape into evidence for illustrative purposes, as the tape was not illustrative and if it was, it was irrelevant and more prejudicial than probative. Stevens also argues that the district court erred in denying his motion for a new trial. Finally, he argues the district court abused its discretion when it imposed a life sentence for his first offense because the district court made findings of fact beyond those of the jury, because it failed to give adequate weight to mitigating factors, and because it violated Stevens's rights by considering that he maintained his innocence as a factor when examining his rehabilitative potential. We will first discuss the admission of the videotape, and then the motion for a new trial before turning to Stevens's sentence. A. The district court did not err in admitting the videotape for illustrative purposes. Prior to trial, the State notified Stevens that it intended to introduce an animated video to illustrate Shaibani's testimony. The defense objected and the district court reserved ruling on the motion until trial. At trial, the State moved to introduce the video, and Stevens objected. The district court ruled that the video was admissible for illustrative purposes, and immediately gave the jury a limiting instruction that the video was simply evidence used to illustrate Shaibani's testimony.

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The video consisted of four different objects falling down stairs. The fourth object was a long elliptical shape with a ball attached. Stevens argues that this object was misleading and argues that the video went beyond illustrating Shaibani's testimony. He maintains that the video was used to explain Shaibani's theory that Casey could not have fallen down the stairs and was irrelevant and misleading as none of the four objects simulate a human body. Thus, according to Stevens, the district court erred in admitting the video. This court reviews questions of the admissibility of evidence using a mixed standard of review. Whether the evidence is relevant is a matter of law and is subject to free review. State v. Field, 144 Idaho 559, __, 165 P.3d 273, 283 (2007). The district court's determination of whether the probative value of the evidence outweighs its prejudicial effect is reviewed for an abuse of discretion. State v. Page, 135 Idaho 214, 219, 16 P.3d 890, 895 (2000). This Court has adopted a three part test for determining whether the district court abused its discretion: (1) whether the court correctly perceived that the issue was one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether it reached its decision by an exercise of reason. Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991). Turning first to the issue of relevance, Stevens argues that the video is irrelevant because it did not accurately depict any issues in the case. Accuracy, however, is not the standard governing relevance of illustrative evidence; rather, the illustrative evidence must only be relevant to the witness's testimony. See State v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993). This is particularly true when the events surrounding a death are in dispute. Stevens argues that because the evidence did not show from exactly what point on the stairs Casey fell, the video showing objects falling from the top of the stairs was inaccurate. This ignores the fact that the purpose of Shaibani's testimony was to support the State's theory and discredit Stevens's theory. This argument also presupposes that the exhibit was admitted as substantive evidence. Shaibani could not be required to testify as to the accuracy of Stevens's account; he would have no knowledge of this. Moreover, Stevens, the only possible eye witness, maintained that he was asleep during Casey's fall; thus, to argue that the analysis could be introduced only if based on

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the exact point from where Casey fell, which according to Stevens is unknown, would make it impossible for the State to rebut Stevens's version of the events. Shaibani's testimony explaining that Casey's injuries could not have resulted from a fall was relevant and admissible. Admissible evidence is "relevant to a material and disputed issue concerning the crime charged." Field, 144 Idaho at __, 165 P.3d at 283. 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." I.R.E. 401; see also Raudebaugh, 124 Idaho at 764, 864 P.2d at 602. Whether a fact is material is

determined by its relationship to the legal theories presented by the parties. State v. Yakovac, 145 Idaho 437, ___, 180 P.3d 476, 482 (2008). The video was relevant and admissible as it was used to illustrate Shaibani's testimony. Here, Stevens's defense was that Casey's injuries were caused by his falling down the stairs and landing on the hardwood floor at the bottom. The issue for the jury to determine was whether Stevens caused Casey's injuries and death. Therefore, whether it was possible for Casey's injuries to have come from such a fall, as Stevens claimed, was a material issue to the case. The video was illustrative of Shaibani's testimony, and Shaibani testified that he used the video to understand the principles involved and in his analysis of whether Casey's injuries could have come from a fall down the stairs. Turning next to the issue of whether the probative value of the video is outweighed by its prejudicial effect, Stevens argues the video was misleading and confusing to the jury and was of only limited probative value as it did not accurately depict Casey's fall. Once again, this argument assumes that the issue before the jury was the accuracy of the video, not whether Casey's injuries could have come from a fall, as Stevens claimed. Here, the court correctly recognized the issue for the jury, and did not abuse its discretion in admitting the video. The district court admitted the video for illustrative purposes only after hearing both the foundation for the video, including that it was for demonstration only, and Stevens's objection that the video was not illustrative or accurate. This decision was within the bounds of the court's discretion and consistent with applicable legal standards. Stevens's arguments fail to show the prejudicial effect of the video outweighed its probative value, particularly in light of the limiting instruction given by the district judge immediately after the admission of the video and before

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the video was played for the jury. Therefore, we affirm the decision to admit the video for illustrative purposes. B. The district court did not err in denying Stevens's motion for a new trial. Stevens argues the district court erred in denying his motion for a new trial based on newly discovered evidence. Stevens asserts that he should have been granted a new trial because (1) newly discovered evidence about the dangers and effects of Propulsid, a drug Casey was taking at the time of his death, was material, (2) evidence that Casey's eyes were removed after embalming could not have been discovered with due diligence, and (3) Shaibani's false testimony as to his credentials affected his credibility. Additionally, Stevens argues that the cumulative effect of these errors entitles him to a new trial. A trial court may grant a new trial, on the defendant's motion, in the interest of justice. I.C.R. 34. Idaho Code

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