               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38123

STATE OF IDAHO,                                  )      2014 Opinion No. 16
                                                 )
       Plaintiff-Respondent,                     )      Filed: February 24, 2014
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
TIMOTHY NICHOLS,                                 )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho,
       Elmore County. Hon. Cheri C. Copsey, District Judge.

       Judgment of conviction for statutory rape, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Sarah E. Tompkins, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Timothy Nichols appeals from his judgment of conviction entered upon a jury verdict
finding him guilty of statutory rape. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       In August 2009, the Mountain Home Police Department received a tip that a juvenile
runaway from Washington may be at Nichols’ residence.            Officer Humberto Fuentes was
dispatched to the residence, where he found Nichols and the victim, a teenage girl, sitting under a
tree in the front yard. The victim was visibly “extremely upset.” After speaking with Nichols
and the victim and contacting the Everett (Washington) Police Department, where the runaway
report had been filed, Officer Fuentes took the victim into custody. Based on the officer’s
subsequent interview of her, the case was turned over to Detective Ty Larsen for further
investigation. Specifically, Officer Fuentes indicated in his report to Detective Larsen “that he



                                                1
had located a runaway in the City of Mountain Home, and there had been possible other illegal
contacts involving with [sic] her.”
       Detective Larsen interviewed Nichols several days later. Nichols provided identification,
which indicated he was fifty-five years old. After waiving his Miranda 1 rights, Nichols told
Detective Larsen he met the victim in Everett, Washington, and the two moved to Idaho together
approximately one month prior. Nichols admitted that he and the victim were in a “dating
relationship;” that they shared a room together in their two-bedroom apartment; and that since
living in Idaho, they engaged in sexual intercourse approximately two to three times a week.
       Nichols was charged with statutory rape, Idaho Code § 18-6101(1). 2 At the time of trial,
the victim was unavailable as a witness, as her whereabouts were unknown. The victim’s
adoptive mother testified as to the victim’s birthdate, indicating the victim was seventeen years
old at the time she was living with Nichols. At the conclusion of the State’s case-in-chief,
Nichols moved for a judgment of acquittal, contending the State failed to present any evidence
independent of Nichols’ confession to establish the corpus delicti of the crime. Specifically,
Nichols contended there was no other evidence to corroborate his admission to having engaged
in sexual intercourse with the victim. The district court denied the motion, and the jury found
Nichols guilty as charged. Nichols timely appealed from the judgment of conviction.
       Following the filing of its respondent’s brief in this appeal, the State filed a motion to
stay the proceedings until the issuance of a remittitur in a case then pending before the Idaho
Supreme Court, State v. Suriner, 154 Idaho 81, 294 P.3d 1093 (2013), where a key issue raised
was the continued viability of the corpus delicti rule in Idaho. Nichols did not oppose the motion
to stay, which was granted. After the Supreme Court issued its decision in Suriner, which
eliminated the corpus delicti requirement in Idaho, appellate proceedings resumed, and Nichols
filed a reply brief, arguing in part that Suriner’s abolition of the rule should not apply
retroactively.




1
       See Miranda v. Arizona, 384 U.S. 436 (1966).
2
       The statute was subsequently amended in 2010.

                                                2
                                                 II.
                                           ANALYSIS
          Nichols contends the district court erred by denying his motion for a judgment of
acquittal because there was insufficient evidence to corroborate his confession pursuant to the
corpus delicti rule. He also argues the district court erred by permitting the victim’s adoptive
mother to testify as to the victim’s age and in allowing Officer Fuentes to testify that the victim
was a runaway because the testimony constituted inadmissible hearsay. Nichols further contends
the district court committed fundamental error by giving the jury an improper elements
instruction and by failing to sua sponte instruct the jury as to the corpus delicti rule. Finally, he
contends the prosecutor committed misconduct amounting to fundamental error during closing
arguments by misstating testimony and referring to facts not in evidence.
A.        Judgment of Acquittal
          Nichols contends the district court erred by denying his motion for a judgment of
acquittal following the State’s evidence because, he asserts, the State presented insufficient
evidence to establish the corpus delicti of the charged offense independent of Nichols’
confessions and statements. 3 Specifically, he contends there was no evidence aside from his
“alleged” confession that indicated any sexual intercourse occurred between Nichols and the
victim.
          On review of the denial of a motion for judgment of acquittal, we determine whether
there is substantial evidence to support the challenged conviction. State v. Hoyle, 140 Idaho 679,
683-84, 99 P.3d 1069, 1073-74 (2004); State v. Merwin, 131 Idaho 642, 644, 962 P.2d 1026,
1028 (1998). Substantial evidence to support the challenged conviction is present when a
reasonable mind could conclude that the defendant’s guilt of the offense was proven beyond a
reasonable doubt by such material evidence. Hoyle, 140 Idaho at 684, 99 P.3d at 1074; State v.
Kuzmichev, 132 Idaho 536, 545, 976 P.2d 462, 471 (1999). Where there is competent although
conflicting evidence to sustain the verdict, this Court cannot reweigh that evidence or disturb the
verdict. Hoyle, 140 Idaho at 684, 99 P.3d at 1074; Merwin, 131 Idaho at 644-45, 962 P.2d at



3
         In response to State v. Suriner, 154 Idaho 81, 294 P.3d 1093 (2013), Nichols argues the
Supreme Court’s abolition of the corpus delicti rule should not apply retroactively in this case.
We need not reach the issue of retroactivity, however, because as we explain below, the corpus
delicti rule was satisfied in this instance.

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1028-29. In reviewing a motion for judgment of acquittal, all reasonable inferences on appeal
are taken in favor of the prosecution. Hoyle, 140 Idaho at 684, 99 P.3d at 1074; Kuzmichev, 132
Idaho at 545, 976 P.2d at 471.
       The corpus delicti rule provides that the fact a crime has been committed cannot be
proved by the extrajudicial confessions or statements of the prisoner, and there must be some
evidence or corroborating circumstances tending to show a crime has been committed, aside
from such confessions or statements. Suriner, 154 Idaho at 83, 294 P.3d at 1095 (quoting State
v. Keller, 8 Idaho 699, 704, 70 P. 1051, 1052 (1902)). The purpose of corpus delicti is to prevent
errors in convictions based on false confessions, to act as a safeguard against the defendant’s act
of confessing but being mistaken that a crime occurred, and to force the prosecution to use its
best evidence. State v. Urie, 92 Idaho 71, 76, 437 P.2d 24, 29 (1968) (McFadden, J., special
concurrence). See also State v. Roth, 138 Idaho 820, 822, 69 P.3d 1081, 1083 (Ct. App. 2003).
       To prove a crime generally, the state must provide evidence in the context of three broad
elements: (1) an injury occurred; (2) criminal agency was involved in causing the injury; and
(3) the identity of the person who caused the injury. See Urie, 92 Idaho at 75, 437 P.2d at 28
(special concurrence). See also Roth, 138 Idaho at 823, 69 P.3d at 1084. Under the standard
formulations of the corpus delicti principle, the state must show the “body” of a crime by
establishing the first two elements of a crime--i.e., the injury and the criminal
agency--independently from a defendant’s confession. Roth, 138 Idaho at 823, 69 P.3d at 1084
(citing State v. Darrah, 60 Idaho 479, 482, 92 P.2d 143, 144 (1939)). However, when the corpus
delicti rule was in effect in Idaho, the State did not have to establish independently from the
defendant’s confession each element of the corpus delicti. Urie, 92 Idaho at 73, 437 P.2d at 26;
Roth, 138 Idaho at 823, 69 P.3d at 1084. Thus, as the corpus delicti of the crime consisted of
injury and criminal agency, the State needed only to independently corroborate one of those
elements to meet its burden. Roth, 138 Idaho at 823, 69 P.3d at 1084. Moreover, only slight
corroboration of the corpus delicti by independent evidence was required. Urie, 92 Idaho at 73,
437 P.2d at 26; State v. Wilson, 51 Idaho 659, 669, 9 P.2d 497, 500 (1932); State v. Downing, 23
Idaho 540, 544, 130 P. 461, 462 (1913); Keller, 8 Idaho at 705, 70 P. at 1052.
       Here, Nichols was charged pursuant to Idaho Code § 18-6101(1), which, at the time of
the offense, defined statutory rape as “the penetration, however slight, of the oral, anal or vaginal
opening with the perpetrator’s penis accomplished with a female . . . [w]here the female is under


                                                 4
the age of eighteen (18) years.” Nichols argued below, and continues to argue on appeal, that
there was “absolutely no corroboration” of his confession that he engaged in sexual intercourse
with the victim and thus the corpus delicti rule was violated. He points out there was no forensic
or medical examination of the victim presented as evidence to the jury and law enforcement
officers had not been able to verify the victim and Nichols were, in fact, living together. The
district court rejected this argument, first noting the corpus delicti rule in Idaho does not require
“that there be corroboration of each and every element or each and every statement made by the
defendant.” The court also rejected Nichols’ argument that the State was required to present
direct evidence (independent of Nichols’ confessions) that sexual intercourse occurred. The
court determined that the existence of a relationship between the two was corroborated, and the
jury could infer from the evidence that the relationship was illicit.
       We agree with the district court that direct evidence of sexual intercourse was not
necessary in this case. Although direct corroborative evidence of sexual intercourse would
satisfy the requirements of the corpus delicti rule in a statutory rape case, such evidence is not
necessary. In State v. Richardson, 56 Idaho 150, 50 P.2d 1012 (1935), our Supreme Court
addressed the requisite corroborative evidence to establish the corpus delicti of adultery. The
court determined that in such cases “the corpus delicti may be established by circumstantial
evidence, and that direct evidence of the fact of intercourse is not required, but may be inferred
from circumstances that lead to it by fair inference as a necessary conclusion.” Id. at 154, 50
P.2d at 1013.
       In determining whether there was sufficient corroborating evidence in this case, we are
guided by Suriner where, before ultimately abolishing the corpus delicti rule, the Supreme Court
undertook an examination of how the Court had interpreted and applied the rule in Idaho in order
to determine whether the district court erred by finding there had been sufficient corroborating
evidence of Suriner’s confessions. Suriner, 154 Idaho at 83-85, 294 P.3d at 1095-97. In doing
so, the Suriner Court focused on the key Idaho Supreme Court decisions applying the rule,
starting with Keller, 8 Idaho 699, 70 P. 1051, in which the Supreme Court first adopted the rule
in Idaho. In Keller, the defendant was convicted of violating a quarantine signed by the governor
by bringing sheep through Box Elder County, Utah, into Idaho. The sole evidence presented at
trial was the governor’s quarantine proclamation and a witness’s testimony that after the
quarantine was instituted, the witness went with the defendant to the defendant’s sheep camp and


                                                  5
the defendant told him that two or three days earlier he had driven the sheep into Idaho through
Box Elder County. At trial and on appeal, the defendant contended there was insufficient
evidence corroborating his out-of-court statement of having violated the quarantine. The Keller
Court held that only slight corroborating facts were required and there was sufficient
corroborating evidence present in the case. Id. at 704, 70 P. at 1052.
       In analyzing Keller, the Suriner Court pointed out that the only evidence corroborating
the defendant’s out-of-court statement was the witness’s testimony that he had seen the
defendant’s sheep in Idaho after the quarantine commenced. Suriner, 154 Idaho at 84, 294 P.3d
at 1096. The Suriner Court continued:
       Although the defendant having the sheep in Idaho was a fact that the State was
       required to prove, it was not a crime for the defendant to have had sheep in Idaho
       on that date. It was only a crime to have brought them through Box Elder County
       within forty days after the Governor’s proclamation. The witness’s observation of
       the sheep in Idaho would not in any way corroborate the truthfulness of the
       defendant’s statement that he had brought those sheep through Box Elder County
       within the last two or three days. Thus, there was no corroboration of that portion
       of the defendant’s statement that made having the sheep in Idaho criminal . . . .
       Nevertheless, this Court held that the corroboration was sufficient.

Id.
       The Suriner Court next discussed its decision in Urie, 92 Idaho 71, 437 P.2d 24, where
the defendant conspired with a man named Fraley to obtain money from an insurance company
for serious injuries Fraley falsely claimed to have suffered on the premises of the defendant’s
employer. When the defendant did not receive his promised share of the settlement Fraley had
received, the defendant went to his employer’s counsel and confessed the scheme. His statement
was reduced to writing and approximately three months later he signed the statement and
reiterated his confession to counsel and representatives of the insurance company.            The
defendant was convicted of obtaining money under false pretenses and he appealed, contending,
among other things, that there was insufficient corroboration of his extrajudicial confessions. In
rejecting this claim, the Supreme Court pointed to medical testimony that Fraley had not suffered
the serious injury claimed, as well as the defendant’s “course of conduct” from the time of the
alleged injury to the signing of the confession that lent “credibility” to his statement. Id. at
73-74, 437 P.2d at 26-27. The course of conduct relied upon by the Court included that Urie
“voluntarily made statements admitting the fraudulent scheme before counsel . . . which he



                                                 6
subsequently reiterated with further particularity and exactitude before two other agents of the
insurance company at the time he signed his ‘confession.’” Id. at 74, 437 P.2d at 27. 4 As the
Suriner Court pointed out, in this manner the Urie Court “stated that extrajudicial statements that
were consistent with the signed confession could be used to corroborate that confession.”
Suriner, 154 Idaho at 85, 294 P.3d at 1097. 5
       Finally, the Suriner Court addressed its decision in State v. Tiffany, 139 Idaho 909, 88
P.3d 728 (2004). There, the defendant’s two-month-old son died while allegedly taking a nap
and the autopsy performed the next day did not reveal any cause of death. Almost a year later,
the defendant admitted to her husband and a counselor that she had smothered her son in an
attempt to stop his crying. The counselor contacted the police, who came to the counselor’s
office where the defendant again admitted she had smothered the child. The defendant was
convicted of involuntary manslaughter.          On appeal, the defendant contended there was
insufficient evidence corroborating her out-of-court confessions.        Noting that only slight
corroborating facts were necessary, the Supreme Court held there was sufficient corroboration
because the defendant’s extrajudicial statements were corroborated by the fact the child was
dead, he died while under the exclusive care of the defendant, and her statements about how she
killed him were consistent with the autopsy results. Id. at 915, 88 P.3d at 734. The Suriner
Court noted there was no corroboration of the element of the crime that the child’s death was
caused by criminal means because the pathologist could not tell whether the child died from
smothering or sudden infant death syndrome. The Suriner Court further noted that the Tiffany
Court held corroboration could include the results of a medical examination of the victim

4
       The Urie Court then noted, “[A] crime of this particular nature would be difficult, if not
well impossible, to prove with any degree of certainty in the absence of a confession on the part
of one or both parties involved.” Urie, 92 Idaho at 74, 437 P.2d at 27.
5
       The Suriner Court also noted, in a preview of its forthcoming holding abolishing the rule:

               Although it may seem inconsistent with the corpus delicti rule to permit a
       defendant’s extrajudicial statements to corroborate his extrajudicial confession,
       the rule is court created. Each court has defined and applied the rule as the court
       deemed best. As will be discussed below, the rule as adopted and applied by this
       Court has not been designed to protect any constitutional or statutory rights or
       even to prevent convictions based upon false confessions.

Suriner, 154 Idaho at 85, 294 P.3d at 1097.

                                                  7
consistent with the defendant’s extrajudicial statements. Suriner, 154 Idaho at 85-86, 294 P.3d at
1097-98.
       The facts of Suriner itself are as follows: Suriner had twin daughters who were about
three and a half years old at the time of the alleged criminal conduct. One daughter mentioned to
an aunt that Suriner had hurt her vaginal area. Police were contacted and Suriner eventually
confessed, over the course of two separate interviews, that he had been sexually abusing his
daughters on Sundays while his wife was at work. Suriner was charged with two counts of lewd
conduct. At trial, the State offered into evidence Suriner’s taped confessions and recordings of
remorseful phone calls he made from jail. A pediatrician who conducted a physical examination
of the girls testified he did not find any trauma or injury associated with sexual abuse, but also
stated the lack of such evidence is not usual. Suriner’s wife testified Suriner had been alone with
the girls on Sundays while she was at work. After the State rested, Suriner moved for a
judgment of acquittal on the ground that the State had not produced evidence a crime had
occurred independently from Suriner’s confessions. The district court denied the motion, relying
on the facts that: (1) Suriner had confessed twice, several days apart; (2) the confessions were
videotaped, allowing the jury to assess whether there were any pressures that might cause a false
confession; (3) Suriner initiated telephone calls from the jail in which he made incriminating
statements; and (4) the pediatrician’s examination of the victims could not rule out sexual abuse.
Id. at 83, 294 P.3d at 1095. Suriner presented no evidence, and a jury found him guilty as
charged. After reviewing the three cases discussed above, the Supreme Court relied on Urie’s
holding that corroboration can include the defendant’s other extrajudicial statements and
Tiffany’s holding that corroboration could include the results of a medical examination of the
victim consistent with the defendant’s extrajudicial statement to conclude the district court did
not err in holding there was sufficient corroboration of Suriner’s confessions. Suriner, 154 Idaho
at 85-86, 294 P.3d at 1097-98.
       Relying on the cases above, which make clear that the amount of corroborating evidence
required is very slight, we are convinced the district court was correct in determining there was
sufficient corroborating evidence in this case to satisfy the erstwhile corpus delicti rule. As the
Suriner Court noted, the Keller Court did not require corroboration of the portion of the
defendant’s statement making his acts criminal; rather, only slight evidence corroborating the
general statement was held sufficient. Suriner, 154 Idaho at 84, 294 P.3d at 1096. Here, there


                                                8
was evidence presented at trial indicating a relationship between Nichols and the victim, which
corroborated, in a general sense, Nichols’ confession that the two had moved together from
Washington, were living together, and were engaged in a sexual relationship. Officers received a
tip about a possible juvenile runaway at Nichols’ residence and when Officer Fuentes arrived at
the residence, he found the victim and Nichols together in the front yard. Further, the victim’s
mother testified she contacted the Everett (Washington) Police Department and reported the
victim as a runaway in July 2009, roughly coinciding with the date Nichols stated he and the
victim moved to Idaho together. The victim’s mother also testified she received a call from the
victim before the victim was taken into custody, which was placed using Nichols’ cell phone.
The victim indicated she was calling from “a place where she was with [Nichols].” Finally,
Nichols was in his mid-fifties and the victim was only seventeen years old. This is not absolute
proof of an inappropriate relationship, but is relevant to the issue. Additionally, like in Urie and
Suriner, Nichols’ made extrajudicial statements consistent with his confession to police. The
victim’s mother received several calls from Nichols on the night the victim was taken into
custody, during which Nichols expressed concern for the victim’s welfare and said he had “taken
care of” the victim. Pursuant to Urie and Suriner, Nichols’ statements may be considered in
concert with the other evidence listed above.
       Admittedly, the evidence, even when considered together, amounts to a somewhat
tenuous corroboration of Nichols’ confessions. However, the Suriner Court made clear that even
before its abolition, the corpus delicti requirement in Idaho was slight and allowed for, among
other things, usage of the defendant’s extrajudicial statements to corroborate his confession.
Given this low bar articulated in Suriner, the evidence in this case leads to a fair inference that
Nichols and the victim were involved in some sort of illicit relationship, thus corroborating, to
the requisite degree, Nichols’ admission of sexual intercourse with the victim. The district court
did not err by denying Nichols’ motion for a judgment of acquittal.
B.     Hearsay
       Nichols contends the district court erred by permitting, over his objection, two witnesses
to testify as to the victim’s age because this testimony constituted inadmissible hearsay. Because
this testimony was the sole evidence establishing an essential element of the crime, he contends
the errors were not harmless.




                                                 9
       The first testimony Nichols challenges as inadmissible hearsay was the victim’s adoptive
mother’s testimony as to the victim’s age at the time she was with Nichols. Because the victim
was adopted, Nichols contends the mother’s testimony was hearsay and was not subject to a
hearsay exception. Where there is a contemporaneous objection to the admission of evidence at
trial, the court has broad discretion in determining the admissibility of testimonial evidence.
State v. Smith, 117 Idaho 225, 232, 786 P.2d 1127, 1134 (1990). A decision to admit or deny
such trial evidence will not be disturbed on appeal absent a clear showing of abuse of that
discretion. State v. Perry, 150 Idaho 209, 218, 245 P.3d 961, 970 (2010); Smith, 117 Idaho at
232, 786 P.2d at 1134. If the Court finds the district court erred by abusing its discretion in
admitting the evidence over an objection by the defense, it then must determine whether that
error is harmless beyond a reasonable doubt. State v. Ellington, 151 Idaho 53, 64, 253 P.3d 727,
738 (2011); Perry, 150 Idaho at 227, 245 P.3d at 979.
       Nichols objected to the prosecutor’s question at trial asking the adoptive mother about the
victim’s date of birth. Nichols argued the State had failed to lay a foundation as to the mother’s
basis of knowledge of the birth date. The district court sustained this objection. Thereafter, the
prosecutor asked the mother how she had acquired the information and again asked the mother
the victim’s date of birth. The mother responded, “I have a birth certificate, and it says May 4,
1992.” Following a hearsay objection, the mother testified, “I believe her birthday is May 4,
1992.” Nichols again objected on hearsay grounds, which the court overruled upon concluding
the testimony was not hearsay. Following the jury’s guilty verdict, the district court issued a
“Memorandum Re: Evidentiary Trial Ruling” in which it indicated the mother’s testimony was,
in fact, hearsay, but was admissible pursuant to Idaho Rule of Evidence 803(19), which excepts
from the hearsay rule evidence of reputation concerning personal or family history.
       Idaho Rule of Evidence 803(19) lists “Reputation concerning personal or family history”
as an exception to the general hearsay rule:
       Reputation among members of a person’s family by blood, adoption, or marriage,
       or among a person’s associates, or in the community, concerning a person’s birth,
       adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or
       marriage, ancestry, or other similar fact of a person’s personal or family history.

Both parties note the absence of Idaho case law interpreting this exception. Thus, we turn to
jurisdictions with substantially similar rules for guidance in this matter of first impression.



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       The underlying rationale of Rule 803(19) is that well-reputed facts concerning personal
and family history are inherently reliable:
       Rule 803(19) refers to “fact[s] of personal or family history” that, due to their
       historical nature, are often very difficult to ascertain. Moreover, the pool of
       persons who have personal knowledge of an individual’s birth, death, adoption,
       etc., is typically quite small, and some or all of such persons may no longer be
       living at the time proof is sought. See 5 WIGMORE ON EVIDENCE § 1481.
       Reputations among family members or in the community as to such facts are
       considered inherently trustworthy in light of “the ‘natural effusions’ . . . of those
       who talk over family affairs when no special reason for bias or passion exists.”
       Id. at § 1482. It is for these reasons that reputation evidence of facts of personal
       or family history is allowed.

Commonwealth v. Collins, 957 A.2d 237, 270 (Pa. 2008). Accord Blackburn v. United Parcel
Serv., Inc., 179 F.3d 81, 98 (3d Cir. 1999) (“[R]eputations regarding relationships and other
personal and family matters within a well-defined community are considered to have the
circumstantial guarantee of trustworthiness that justifies a hearsay exception.”). The Third
Circuit Court of Appeals has noted, however, that the trustworthiness rationale behind this
exception must be supported:
       [A] proponent of Rule 803(19) evidence [must] establish that the reputation
       testimony arises from sufficient inquiry and discussion among persons with
       personal knowledge of the matter to constitute a trustworthy “reputation.”
       Rumors and speculation are clearly insufficient in this regard. Testimony by a
       declarant that he heard, from some unknown source, that two people were related
       in some way would be inadmissible under Rule 803(19). Rather, what is required
       is the laying of a foundation of knowledge grounded in inquiry, discussion,
       interactions, or familiarity “among a person’s associates, or in the community” in
       which he works.

Blackburn, 179 F.3d at 100.
       Nichols contends a foundation requirement was not met in this instance because the
mother “was not present at the time [the victim] was born and had no apparent personal
knowledge of the circumstances of [the victim’s] birth other than what she was told.” Nichols
argues that even assuming the testimony of an adoptive parent regarding a child’s birthday falls
within the Rule 803(19) hearsay exception, there was “insufficient foundation to establish the
trustworthiness of the information.” Nichols fails to address the fact, however, that the mother
specifically testified she based her knowledge of the victim’s birthdate on viewing the victim’s




                                                11
birth certificate. Nichols did not challenge the reliability of the birth certificate below and does
not do so now on appeal.
       The State points out that the Iowa Supreme Court addressed, under very similar
circumstances, the question of whether an adoptive parent’s testimony regarding her adoptive
daughter’s birth date fell within the hearsay exception for statements of reputation concerning
personal or family history. In State v. Mitchell, 568 N.W.2d 493 (Iowa 1997), the defendant was
charged with third degree sexual abuse, which required the state to prove the victim was fourteen
or fifteen years old at the time of the abuse. The trial court permitted the victim’s adoptive
mother to testify as to the victim’s date of birth and the Iowa Supreme Court affirmed:
               Exceptions to the general rule against hearsay are permitted with respect
       to pedigree where the declaration is by a relative or one in a position that he or
       she would likely know the facts. It is enough that the declarant had such
       opportunity for acquiring knowledge concerning the pedigree information as leads
       to a reasonable inference that the declarant possessed such knowledge.
               Although [the victim] was adopted, the declarant--the adoptive
       mother--was certainly in a position to know when [the victim] was born. At the
       very least, the adoptive mother had the opportunity to acquire such knowledge,
       and that opportunity would permit a reasonable inference by the jury that she
       possessed such knowledge.

Id. at 500 (citations omitted). This reasoning is sound. By virtue of her familial relationship
with the victim in this case, the mother was in a position to know when the victim was born or, at
the very least, to have acquired such knowledge. The mother specifically testified the victim was
ten months old when she adopted her and she was given a birth certificate for the victim at the
time. Thus, contrary to Nichols’ argument, the mother specifically testified as to the basis of her
knowledge. Under these circumstances, the requisite foundation was presented and the mother’s
testimony was properly admitted pursuant to Rule 803(19). 6


6
        Nichols also challenges admission of the evidence, contending that pursuant to language
in Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 100 (3d Cir. 1999), the district court was
required to take into consideration additional factors in admitting the evidence such as how
significant the evidence is to the issues disputed at trial, the availability of other evidence of the
facts testified to, and the nature of the litigation. This argument is not well-taken. Nothing in the
rule indicates such considerations are relevant to the applicability of the exception. Additionally,
the language to which Nichols refers in Blackburn was contained within a citation to an evidence
treatise and utilized in support of the court’s determination that a foundation of knowledge must
be laid. The Blackburn Court did not indicate consideration of such factors was required, nor did
it conduct such an analysis itself in assessing the admissibility of evidence in that case. Id. We

                                                 12
       Nichols also contends the district court erred by admitting Officer Fuentes’ testimony
regarding the victim’s status as a runaway because it was hearsay and was offered and admitted
for the purpose of proving the victim’s age. However, because we have determined the victim’s
mother properly testified as to the victim’s age, even if we assume error in the admission of
Officer Fuentes’ testimony as to this point, it would be harmless error. Error is not reversible
unless it is prejudicial. State v. Coleman, 152 Idaho 872, 879, 276 P.3d 744, 751 (Ct. App.
2012). Trial error will be deemed harmless if the reviewing court is convinced beyond a
reasonable doubt the error did not contribute to the verdict. Perry, 150 Idaho at 227, 245 P.3d at
979. Here, the victim’s mother testified both as to the victim’s age and, without objection, that
she had reported the victim as a runaway. Because evidence of the victim’s age and status as a
runaway was properly admitted through the mother’s testimony, we are convinced beyond a
reasonable doubt that any reference by Officer Fuentes in this regard did not contribute to the
verdict. The jury was presented with inarguably convincing evidence from the mother that the
victim was under age, and thus it follows that Officer Fuentes’ testimony in this regard would
have little to no effect. The district court did not commit reversible error by admitting either the
mother’s or Officer Fuentes’ testimony.
C.     Jury Instructions
       For the first time on appeal, Nichols argues the district court erred by failing to properly
instruct the jury. First, he contends the district court gave an incorrect elements instruction that
effectively lowered the State’s burden of proof for the charge of statutory rape. He also contends
the court erred by failing to sua sponte instruct the jury on the corpus delicti rule and
corroboration of his extrajudicial statement
       Whether jury instructions fairly and adequately present the issues and state the applicable
law is a question of law over which this Court exercises free review. State v. Draper, 151 Idaho
576, 587, 261 P.3d 853, 864 (2011).            We look at the jury instructions as a whole, not
individually, to determine whether the jury was properly and adequately instructed. Id. at 577,
261 P.3d at 865.     An erroneous instruction will not constitute reversible error unless the
instructions as a whole misled the jury or prejudiced a party. Id. Pursuant to the fundamental




find no convincing basis to impose this requirement upon a district court considering the
admissibility of evidence pursuant to Rule 803(19).

                                                  13
error doctrine, an appellate court may only reverse an unobjected-to error when the defendant
persuades the court the alleged error: (1) violates one or more of the defendant’s unwaived
constitutional rights; (2) is clear or obvious without the need for reference to any additional
information not contained in the appellate record; and (3) affected the outcome of the trial
proceedings. Perry, 150 Idaho at 226, 245 P.3d at 978.
       1.      Elements instruction
       Nichols contends the district court erred by giving a non-pattern jury instruction
regarding the elements of statutory rape, which omitted an essential element. The instruction
given indicated to the jury that to find Nichols guilty of the charge, it must find the State proved
each of the following elements beyond a reasonable doubt:
               1.      On or between the 1st day of August 2009 and the 21st day of
                       August 2009
               2.      in the state of Idaho
               3.      the defendant . . . did penetrate the vaginal opening of [the victim],
                       a female person, and
               4.      [the victim] was under the age of eighteen years of age.

As it existed at the time however, the statutory rape statute under which Nichols was charged
defined the crime as “penetration, however slight, of the oral, anal or vaginal opening with the
perpetrator’s penis . . .” I.C. § 18-6101 (2009) (emphasis added). Nichols contends that by
omitting the italicized language from the elements instruction, the State was relieved of its
burden to prove a requisite element of the crime and this amounted to fundamental error.
       The State concedes omission of this element in the instruction was error; however, it
contends it did not rise to the level of fundamental error because the error was neither plain, nor
did it prejudice Nichols. According to Perry, where evidence supporting a finding on the
omitted element is overwhelming and uncontroverted, so that no rational jury could have found
the State failed to prove that element, the constitutional violation may be deemed harmless.
Perry, 150 Idaho at 224, 245 P.3d at 976. Cf. Draper, 151 Idaho at 592-93, 261 P.3d at 869-70
(holding the omitted element was not harmless because the defense vigorously contested the
omitted element).
       Nichols did not testify, but his counsel advanced two theories in Nichols’ defense at trial:
(1) he did not have sexual intercourse with the victim as he had confessed to police, and (2) even
if he did, the victim was not under the age of eighteen at the time. In regard to the first theory,



                                                14
Nichols argued that admissions to sexual intercourse with the victim that he made during his
police interview were not corroborated and were otherwise not reliable because they were
“extracted in a windowless room” and he may have been pressured to make them. He did not,
however, contest the allegation that, if sexual intercourse occurred, it happened in the only
manner which he confessed it did: “penis and vaginal-style sex.” Thus, the manner in which
penetration was alleged to have occurred was not contested by Nichols, nor was there any
evidence from which a reasonable jury could find, if it determined sexual contact occurred
(which it obviously did in finding him guilty), that it occurred in any manner other than what
Nichols confessed to police. Accordingly, Nichols has not shown that the omission of this
element from the jury instruction, although error, affected the outcome of the trial. Thus, the
erroneous jury instruction did not amount to fundamental error.
       2.      Corpus delicti instruction
       Nichols also contends the district court erred by failing to sua sponte instruct the jury
regarding the corpus delicti rule, specifically the requirement that there be independent evidence
corroborating Nichols’ admission of sexual intercourse. Again, because Nichols did not object
to the omission of this instruction below, he must satisfy the three-prong fundamental error test
established in Perry.
       As we noted above, in order to show fundamental error, a defendant must show the
alleged error violated one or more of his unwaived constitutional rights. Perry, 150 Idaho at
226, 245 P.3d at 978. Nichols has failed to satisfy this requirement. As the Suriner Court made
clear in discussing the basis of the rule and eventually abolishing it, the corpus delicti doctrine is
not rooted in constitutional protections, but is a judicially-created doctrine first recognized in
Idaho by the Supreme Court in 1902. Suriner, 154 Idaho at 83, 294 P.3d at 1095. Thus, Nichols
has not shown the alleged erroneous failure to instruct the jury as to the necessity for
corroborating evidence of his admission violated an unwaived constitutional right and, in turn,
has not shown fundamental error occurred.
D.     Prosecutorial Misconduct
       Finally, Nichols contends the prosecutor committed misconduct during closing arguments
that rose to the level of fundamental error by misstating the testimony provided at trial and
introducing facts not in evidence. When there is no contemporaneous objection, a conviction
will be reversed for prosecutorial misconduct only if the conduct is sufficiently egregious so as


                                                 15
to result in fundamental error. Perry, 150 Idaho at 228, 245 P.3d at 980; State v. Field, 144
Idaho 559, 571, 165 P.3d 273, 285 (2007). As a threshold, we must determine factually if there
was prosecutorial misconduct. See Field, 144 Idaho at 571, 165 P.3d at 285.
       Although our system of criminal justice is adversarial in nature, and the prosecutor is
expected to be diligent and leave no stone unturned, he or she is nevertheless expected and
required to be fair. Field, 144 Idaho at 571, 165 P.3d at 285; State v. Betancourt, 151 Idaho 635,
639, 262 P.3d 278, 282 (Ct. App. 2011). However, in reviewing allegations of prosecutorial
misconduct we must keep in mind the realities of trial. Field, 144 Idaho at 571, 165 P.3d at 285;
Betancourt, 151 Idaho at 639, 262 P.3d at 282. A fair trial is not necessarily a perfect trial.
Field, 144 Idaho at 571, 165 P.3d at 285; Betancourt, 151 Idaho at 639, 262 P.3d at 282. Closing
argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal
case. Betancourt, 151 Idaho at 639, 262 P.3d at 282; State v. Phillips, 144 Idaho 82, 86, 156
P.3d 583, 587 (Ct. App. 2007). Its purpose is to enlighten the jury and to help the jurors
remember and interpret the evidence. Phillips, 144 Idaho at 86, 156 P.3d at 587. Both sides
have traditionally been afforded considerable latitude in closing argument to the jury and are
entitled to discuss fully, from their respective standpoints, the evidence and the inferences to be
drawn therefrom. State v. Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969 (2003); Betancourt,
151 Idaho at 639, 262 P.3d at 282. Whether comments during closing arguments rise to the level
of fundamental error is a question that must be analyzed in the context of the trial as a whole.
State v. Carson, 151 Idaho 713, 718, 264 P.3d 54, 59 (2011). The relevant question is whether
the prosecutor’s comments so infected the trial with unfairness as to make the resulting
conviction a denial of due process. Darden v. Wainwright, 477 U.S. 168, 181 (1986); Carson,
151 Idaho at 718-19, 264 P.3d at 59-60.
       Nichols contends the prosecutor, twice during closing arguments, misrepresented
testimony and argued facts not in evidence. The first instance occurred when the prosecutor was
discussing the testimony of Officer Fuentes. When referring to the officer’s discussion with the
victim, the prosecutor characterized the officer’s testimony as follows:
       During the course or based upon what he learned from that interview with [the
       victim], he felt something wasn’t right. And because he felt something wasn’t
       right about what he heard, he then passed his report on to the detective division so
       further investigation could be performed.




                                                16
Nichols contends there was never any testimony about what the victim told Officer Fuentes and
the officer did not testify “as to having any sort of feeling that something ‘wasn’t right,’ based
upon his conversation” with the victim.
       The second instance Nichols argues constituted misconduct was the prosecutor’s
statement regarding Detective Larsen’s testimony.        Specifically, the prosecutor stated the
detective testified that not only did Nichols state he and the victim shared a bedroom in Nichols’
apartment, but that they had shared a bed in this room. Nichols contends this was not the
substance of Detective Larsen’s testimony; rather, Detective Larsen only testified Nichols said
he shared a room with the victim, not that Nichols actually shared a bed with her.
       Neither of these instances amounted to prosecutorial misconduct, let alone fundamental
error. As noted above, during closing argument each side is entitled to discuss fully, from their
respective standpoints, the evidence and the inferences to be drawn therefrom. Sheahan, 139
Idaho at 280, 77 P.3d at 969; Betancourt, 151 Idaho at 639, 262 P.3d at 282. Relevant to the
statement in regard to Officer Fuentes, the officer had specifically testified he interviewed the
victim and based upon what occurred in the interview, he turned the case over to the detective
division to pursue. Detective Larsen testified he began investigating the case after receiving a
report from Officer Fuentes “that he had located a runaway in the City of Mountain Home, and
there had been possible other illegal contacts involving with [sic] her.” From this evidence, it
was a reasonable inference that Officer Fuentes felt something “wasn’t right” after his interview
with the victim. Logically, he would not have turned the case over to Detective Larsen for
further investigation had he been without concern and suspicion regarding the situation. Thus,
the prosecutor’s statements in this regard were not improper.
       In regard to the sleeping arrangements statement, this too was a reasonable inference
from the facts in evidence.     Detective Larsen testified Nichols made several admissions,
including that he and the victim were in a “dating relationship,” that they shared a bedroom in
the two-bedroom apartment and, since living in Idaho, they had engaged in sexual intercourse
approximately two to three times a week. That the two shared a bed was a reasonable inference
from this evidence.    Again, the prosecutor’s statements in this regard were not improper.
Nichols has failed to show the prosecutor engaged in misconduct during closing arguments.




                                               17
                                                III.
                                         CONCLUSION
       Even assuming the Supreme Court’s abolition of the corpus delicti rule in Suriner does
not apply retroactively, the district court did not err by denying Nichols’ motion for a judgment
of acquittal; there was sufficient corroborating evidence of Nichols’ confession to satisfy the
rule. The district court also did not err in permitting the victim’s adoptive mother to testify as to
the victim’s age because the testimony was properly admitted pursuant to the personal or family
history exception to the hearsay rule. Any error in allowing Officer Fuentes to testify that the
victim was a runaway was harmless because convincing evidence of the victim’s age was
properly admitted through the mother’s testimony.          The district court’s error in giving a
non-pattern elements instruction to the jury that omitted an element of statutory rape did not
constitute fundamental error because Nichols has not shown he was prejudiced by the omission.
Similarly, the district court’s failure to sua sponte instruct the jury as to the corpus delicti rule
did not amount to fundamental error because Nichols has not shown such a failure implicated an
unwaived constitutional right. Finally, the prosecutor did not engage in misconduct during
closing argument because the disputed statements were reasonable inferences from the evidence
presented at trial. Nichols’ judgment of conviction for statutory rape is affirmed.
       Judge LANSING and Judge MELANSON CONCUR.




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