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IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 33949
STATE OF IDAHO,                                                                                         )   2009 Opinion No. 6
)
Plaintiff-Respondent,                                                                                   )   Filed:  January 22, 2009
)
v.                                                                                                      )   Stephen W. Kenyon, Clerk
)
PATRICK ALLEN KARPACH,                                                                                  )
)
Defendant-Appellant.                                                                                    )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County.  Hon. Thomas F. Neville, District Judge.
Judgment of conviction vacated and case remanded.
John Meienhofer, Boise, for appellant.
Hon.  Lawrence  G.  Wasden,  Attorney  General;  Jennifer  E.  Birken,  Deputy
Attorney General, Boise, for respondent.  Jennifer E. Birken argued.
GUTIERREZ, Chief Judge
Patrick Allen Karpach appeals from his judgment of conviction upon a jury verdict
finding him guilty of burglary, petit theft, and concealment of a dangerous weapon.   Because we
conclude that the exclusion of evidence amounts to reversible error, we vacate the judgment of
conviction and remand for a new trial.
I.
FACTS AND PROCEDURE
For Christmas, Karpach’s sister-in-law gave him a “Big Smith” brand hooded sweatshirt
and a pair of coveralls, which she had purchased at Home Depot.    Several days later, on
December 30, 2005, Karpach entered the Home Depot store on Milwaukee in Boise through the
entrance near the professional contractors desk (“pro desk”).  It is here that each side’s version of
the facts diverge.   Several Home Depot employees, including Jason Center, the head cashier at
the time, Brad Earl, another store employee, and Joshua Toulouse, the store’s loss prevention
investigator who followed Karpach around the store, testified that Karpach approached a display
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of Big Smith clothing near the tool “corral” area of the store.   There, he selected two items of
clothing--a hooded sweatshirt and a pair of coveralls--and walked towards the door where he
came in.   He stopped at the pro desk, items still in hand, and asked an employee where the
returns desk was located.  When given an answer, he walked out and re-entered the store near the
returns desk.   Toulouse testified that he saw Karpach pull off several clothing tags and toss them
on the ground as he was leaving the store.   Center testified that the store alarm went off when
Karpach exited and that Center recorded the alarm in the store’s alarm log.   After re-entering the
store, Karpach allegedly presented the tags taken from the clothing he received for Christmas
and went to return the items he had just taken.   After watching the transaction, Toulouse called
the Boise Police Department to the scene.    Karpach was confronted in the parking lot by
Toulouse and other Home Depot employees, and officers arrested him.   During a search incident
to arrest, brass knuckles were found in one of his pockets.
Karpach, on the other hand, testified that he initially entered Home Depot carrying the
sweatshirt and coveralls he had received for Christmas, intending to return them because they did
not fit.   He entered near the pro desk and not immediately seeing the returns desk, inquired of an
employee as to where the returns desk was.  He then exited the building, immediately re-entering
near the returns desk.    He returned the items without a receipt, received store credit, and
remained in the store for a brief time looking at compressors before he left and was confronted
by Home Depot employees and the police in the parking lot.
Karpach was charged with burglary, Idaho Code  §  18-1401, petit theft, I.C.  §§  18-
2403(1), 18-2407(2), and concealing a dangerous weapon, I.C. § 18-3302(7).   A jury found him
guilty of all three charges, and Karpach filed a motion for a new trial on the basis of newly
discovered evidence and alleged errors by the court during trial.   After a hearing, the trial court
denied the motion and entered a judgment of conviction.  Karpach now appeals.
II.
ANALYSIS
A.                                                                                                     Exclusion of Exculpatory Evidence
Karpach contends the district court erred in excluding certain exculpatory evidence at
trial.   Specifically, he argues that the court should not have excluded testimony from a Home
Depot manager about surveillance camera coverage in the store and should have admitted the
store’s alarm log into evidence.   Karpach intended for Brett Steele, a new manager of Home
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Depot, to testify:                                                                                      (1) on the security camera coverage of the store and (2) to establish the
foundation for admittance of the alarm log which showed that no notation had been made
indicating the alarm sounded when Karpach exited the store with the merchandise.   The district
court did not allow Steele to testify at all due to Karpach’s failure to disclose Steele as a witness
before trial, as required by Idaho Criminal Rule 16.1   The court also held that his testimony
would be irrelevant.  Karpach now contests the exclusion of Steele’s testimony.
1.                                                                                                      Steele’s testimony regarding security cameras
The  state’s  evidence  regarding  the  surveillance  camera  coverage  in  the  store  was
addressed through the testimony of Toulouse.   Previously, at the preliminary hearing of March
30, 2006, Toulouse testified that video surveillance cameras filmed the area near the tool corral
where Karpach allegedly removed clothing from the store.    Toulouse also testified that he
viewed the store’s surveillance video tapes immediately after Karpach’s arrest and that the only
tape upon which Karpach appeared was that which covered the returns desk.
At trial, Toulouse testified for the first time that there never had been any surveillance
video of the tool corral area because the surveillance cameras did not cover this section of the
store.   Karpach sought to counter Toulouse’s testimony as to the absence of camera coverage by
introducing the testimony of Steele.   The state initially objected to Steele testifying concerning
the camera coverage in the store because Steele had not previously been disclosed in discovery.
In response, Karpach’s defense counsel explained that he had not intended to call Steele in the
defense’s case-in-chief but, due to Toulouse’s unanticipated change of position regarding the
location of cameras within Home Depot, he needed Steele’s testimony to show that closed circuit
camera coverage was in place throughout the internal portion of Home Depot.    The state
thereafter withdrew its objection to Steele testifying as to camera coverage in the store stating,
. . . “Mr. Toulouse has been specific about what cameras cover what, and he’s drawn it in.”
The district court still refused to allow Steele to testify.  Specifically, the court stated:
1                                                                                                       Idaho Criminal Rule 16(c)(3) requires that the defendant, upon written request by the
prosecuting attorney, furnish the state a list of names and addresses of witnesses the defendant
intends to call at trial.   A written response to a discovery request must be served within fourteen
days of service of the request.   I.C.R.  16(e).   There is a continuing duty to disclosure; the
subsequent discovery of additional evidence or witnesses prior to or during trial is subject to
automatic discovery under the original discovery request.   I.C.R. 16(i).   The failure to comply
with a discovery request is grounds for the imposition of sanctions by the court.  I.C.R. 16(e)(2).
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This is trial by ambush.   You simply didn’t prepare this case in time to
adequately provide discovery in any kind of timely fashion.   It is not fair to the
State.    It is                                                                                         4:23 in the afternoon.    They’ve just rested.    They have had no
opportunity to talk to Mr. Steele.   I don’t think this is relevant evidence to start
with.  Even the camera angle.
I am not sure if you’re saying Mr. Steele would now testify that the
camera angles were different, the range of vision--the range of view of the camera
was somehow different from what Mr. Toulouse testified to.   I suppose that could
be relevant evidence, but you didn’t disclose it.   It is not fair, and I am not going
to allow you to call Mr. Steele for any purpose.
The right to offer testimony is grounded in the Sixth Amendment Compulsory Process
Clause, and the Sixth Amendment can be violated by imposition of a discovery sanction that
entirely excludes the testimony of a material defense witness. 2    Taylor v. Illinois, 484 U.S. 400,
409 (1988); State v. Harris, 132 Idaho 843, 846, 979 P.2d 1201, 1204 (1999).
At the outset, we note that it was error for the district court to rule a discovery violation
occurred,  when  Karpach  had  no  indication  prior  to  trial  that  Toulouse  would  change  his
testimony regarding the location of camera coverage within the store and therefore was not
aware that Steele’s testimony would be necessary.    See I.C.R.  16(c)(3)  (providing that the
defendant’s obligation to disclose witnesses prior to trial extends only to those that it intends to
call).  The state in essence acknowledged that Karpach had no forewarning of Toulouse’s change
in  position  when  it  withdrew  its  objection  to  Steele  testifying  about  camera  coverage.
Accordingly, the district court’s reliance upon a failure to disclose Steele in pretrial discovery
was not a valid basis to exclude his testimony.
We next address the district court’s alternate basis for exclusion of the testimony--that it
was irrelevant and immaterial.  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.”   Idaho Rule of Evidence 401; State v. Stevens,
2                                                                                                       Relying on the general rule that rebuttal witnesses need not be disclosed, see State v.
Lopez, 107 Idaho 726, 739, 692 P.2d 370, 383 (Ct. App. 1984), Karpach argues that Steele’s
testimony should have been admitted because it was “rebuttal” testimony.   However, “rebuttal”
is a term of art that refers to the evidence offered by the prosecution to contradict the evidence in
the defendant’s case-in-chief.   See id. (noting that a prosecutor’s duty to disclose witnesses does
not extend to those called only in rebuttal).   Evidence is not “rebuttal” evidence just because it
refutes the state’s case-in-chief; were we to characterize all evidence offered by the defendant
that contradicts the state’s case-in-chief as such, a defendant’s entire case would essentially be
“rebuttal” and a defendant would never be required to disclose any witnesses.
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146 Idaho 139, 143, 191 P.3d 217, 221 (2008).  We review questions of relevance de novo.  State
v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993).
Numerous times the district court discounted the relevancy of Steele’s testimony and
further clarified its reasoning on this point in its memorandum decision and order denying
Karpach’s motion for a new trial:
Whether there was in fact additional camera coverage is irrelevant and immaterial
(and it is uncontroverted from the evidence) as Toulouse testified that he reviewed
all the camera video and did not find the Defendant on any videotape other than at
the returns desk.
While Center, Earl, and Toulouse all testified as to varying parts of Karpach’s actions
within the store--that he proceeded to the Big Smith display and took a sweatshirt and coveralls,
removed the tags, exited near the pro desk, and re-entered the store and returned the items--the
only security camera footage that the jury was shown was that of Karpach at the returns desk.
Toulouse explained this lack of video evidence by testifying that there was not videotape of any
of his or Karpach’s other movements around the store--explicitly stating that there was not
camera coverage of the tool corral area or the exit where Karpach left with the goods before re-
entering.  However, had Steele been allowed to testify that there was, in fact, camera coverage in
those areas, the employees’ stories could have been called into doubt--it would have begged the
question that if the events had unfolded as they described, why video was not presented
corroborating their story.   Had the jury believed Steele’s testimony, this could have seriously
damaged the credibility of both Centers and Earl and most importantly, Toulouse, and raised the
inference that Karpach had not actually visited the Big Smith display as they testified, because if
he had, there would have been video evidence of his actions.  Such an inference would have been
entirely consistent with Karpach’s version of the facts--that he entered the store near the pro desk
with the sweatshirt and coveralls he had received for Christmas, asked for directions to the
returns department at the pro desk, exited where he had entered, and re-entered the store and
returned the items.   Thus, the fact that Toulouse testified he had reviewed the entirety of the
tapes and Karpach did not show up on any except at the returns desk does not, as the district
court  stated,  preclude  the  relevance  of  Steele’s  proposed  testimony--the  point  was  that
Toulouse’s credibility would be substantially challenged if there was, in fact, video coverage of
the tool corral, where Toulouse said there was not.   In addition, there would have been great
exculpatory value in showing that the tool corral was filmed and that the tape did not show
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Karpach at that location.   Contrary to the district court’s determination, Steele’s testimony with
regard to the camera coverage in the store was material and relevant, and it therefore was error
for the court to exclude it.3
2.  Alarm log
Karpach also contends that the district court erred in refusing to admit into evidence the
alarm log because it was a highly significant piece of evidence that was wrongfully excluded by
the district court due to the misapplication of the business records exception to the hearsay rule.
We note the trial court has broad discretion in determining the admissibility of evidence.   A
decision to admit or deny evidence will not be disturbed on appeal absent a clear showing of
abuse of that discretion.   State v. Smith,  117 Idaho  225,  232,  786 P.2d  1127,  1134  (1990).
Certain records of regularly conducted business activities are excepted from the exclusionary
requirements of the hearsay rule.   I.R.E. 803(6).  This business record exception does not require
the custodian of such records to vouch for the accuracy of the records at issue.   State v. Evans,
129 Idaho 758, 932 P.2d 881 (1997).
Before Karpach attempted to introduce the alarm log into evidence, the state presented
Center’s recorded testimony (from the preliminary hearing) that the alarm had gone off when
Karpach exited the store and that Center had noted the event in the log.   However, Toulouse
testified at trial that there was no indication in the log that the alarm had sounded at 3:45 p.m. on
the date in question.   The state objected to the log’s admission on foundation grounds.   In
sustaining the state’s objection, the district court found there was insufficient foundation because
Toulouse had not “vouched” for the records, it was not part of his “regular business to maintain
them,” and he had “doubt about their accuracy.”   The court also noted that the information that
there was no notation in the log that the alarm had gone off at 3:45 p.m. was already before the
jury, and therefore, Karpach was not prejudiced by the document being excluded.   We disagree
with the district court’s analysis.  The log itself remained relevant to impeach Center’s testimony
that Karpach’s exit caused the alarm to go off and that Center noted this alarm in the log.   See
State v. Hayes,  144 Idaho  574,  578,  165 P.3d  288,  292  (Ct. App.  2007)  (“[I]mpeachment
evidence is that which is designed to discredit a witness, i.e. to reduce the effectiveness of his
3                                                                                                       We note the district court’s ruling prevented Karpach from calling Steele to the stand and
addressing any further foundation concerns expressed by the district court.
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testimony by bringing forth the evidence which explains why the jury should not put faith in him
or his testimony.”).
In excluding the log, the court appeared to rely heavily on Toulouse’s indication that he
doubted the “accuracy” of the document.   While Toulouse testified that the log was the type
regularly kept during the course of business at Home Depot, he then expressed hesitation that it
was accurate given his knowledge that during certain times of the day, employees failed to log
alarms as they were directed.   However, the overall accuracy or inaccuracy of the log book does
not affect its relevance to impeach Center’s testimony.   Because there was conflicting testimony
on whether the alarm went off and whether logging occurred in this instance, the log was
material to Karpach’s defense and we conclude that the district court abused its discretion in
excluding it entirely.
3.                                                                                                    Harmless error
This Court will not reverse a judgment due to an erroneous lower court decision unless
the error affects a substantial right of the defendant.   See I.C.R. 52; State v. Fisher, 140 Idaho
365, 372, 93 P.3d 696, 703 (2004).   An error is harmless if the reviewing court determines
beyond a reasonable doubt that the jury would have reached the same result.  State v. Gomez, 137
Idaho 671, 673, 52 P.3d 315, 317 (2002).   If the error concerns omitted evidence, “the test for
harmless error is whether there is a reasonable possibility that the lack of excluded evidence
contributed to the verdict.”   Gomez, 137 Idaho at 673, 52 P.3d at 317 (citations and internal
quotations omitted).
Given the centrality of the issue upon which Steele’s proposed testimony would have
touched--and the fact that it may have directly contradicted the state’s only eyewitnesses--we
conclude that the court’s exclusion of Steele’s testimony on the security camera coverage was
not harmless.   In addition, the lack of an entry in the alarm log when one of the state’s primary
witnesses had testified that not only had the alarm gone off when Karpach exited the store, but
that the occurrence had been logged, was highly relevant and important to Karpach’s defense
that the only clothing he had handled within the store was the items he had received for
Christmas.  We note that the prosecutor’s case against Karpach was not “airtight.”  Not only was
Karpach not captured on camera doing anything but returning the items, Toulouse’s testimony
regarding the cameras and their coverage changed between the preliminary hearing and trial.
Had Steele, in fact, testified that there was camera coverage of other areas of the store where the
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eyewitnesses alleged that Karpach visited, it could have undermined the credibility of the state’s
witnesses and may have given rise to some doubt as to Karpach’s guilt.    In sum, we are
convinced that there is a reasonable possibility that the exclusion of Steele’s testimony and the
alarm log contributed to the verdict.   Thus, we reverse Karpach’s conviction for burglary and
petit theft and remand for a new trial on these charges.4
III.
CONCLUSION
The district court abused its discretion in excluding Steele’s testimony and the alarm log.
Accordingly, we vacate the judgment of conviction and remand for a new trial.
Chief Judge LANSING and Judge Pro Tem SCHWARTZMAN CONCUR.
4                                                                                                    Karpach’s conviction for concealment of a dangerous weapon is unaffected by our
decision--and he does not argue otherwise.   Karpach listed as an issue in his appellant’s brief,
“Whether the jury verdict was supported by substantial and competent evidence upon which a
rational trier of fact could find that all the elements of the charged crimes had been established
beyond a reasonable doubt?”   However, he presented no argument on the concealment offense.
Therefore we do not address it.  See State v. Zichko, 129 Idaho 259, 923 P.2d 966 (1996).
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