                IN THE SUPREME COURT OF THE STATE OF IDAHO
                               Docket No. 44858
  STATE OF IDAHO,                                   )
                                                    )
           Plaintiff-Respondent,                    )        Boise, January 2019 Term
                                                    )
  v.
                                                    )        Opinion filed: March 14, 2019
  JASON ANDREW GODWIN, SR.,                         )
                                                    )        Karel A. Lehrman, Clerk
           Defendant-Appellant.                     )
                                                    )


       Appeal from the District Court of the Second Judicial District, State of Idaho,
       Idaho County. Hon. Gregory FitzMaurice, District Judge.

       Conviction for second degree murder, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant.
       Jenevieve C. Swinford, Deputy Appellate Public Defender argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Kenneth K.
       Jorgensen, Deputy Attorney General argued.

                                   _____________________________

BURDICK, Chief Justice.
       Jason Andrew Godwin, Sr., appeals the judgment of conviction entered against him in
Idaho County district court for second degree murder. Godwin was convicted in February 2016,
for the killing of Kyle A. Anderson on June 9, 2014. In his appeal, Godwin asserts that the
district court erred by denying his motion to suppress evidence of statements he made to police.
Godwin also contends that the district court erred by requiring him to show personal knowledge
of Anderson’s violent or aggressive character before allowing him to present evidence of that
character. Godwin also asserts that the district court failed to properly instruct the jury on
justifiable homicide under section 18-4009 of the Idaho Code. Godwin further argues that the
State committed prosecutorial misconduct by impermissibly vouching for evidence and
witnesses in closing arguments. Lastly, Godwin asserts the complained-of errors in his case, even



                                                1
if harmless individually, amount to a due process violation when viewed cumulatively. We
affirm.
                     I.   FACTUAL AND PROCEDURAL BACKGROUND
          Around 10:00 p.m. on June 9, 2014, Godwin shot and killed Anderson at a motor-vehicle
pullout off of Toll Road just outside Kooskia, Idaho. On February 26, 2016, after a five-day trial,
a jury delivered a guilty verdict against Godwin on the charge of second degree murder.
          The day before Anderson was fatally shot, Godwin attended a barbeque with Phyllis
“Carla” Griner, James Robinette, and Ernest “Ernie” Ruiz at which Robinette informed Godwin
that he suspected that Anderson had stolen some guns from him. The next morning, Godwin,
Ruiz, Brandy Lilly, and Beau Lynch, traveling in the same vehicle, went to look for the guns
underneath an overturned boat in a nearby canyon but were unable to find them. Afterwards,
Godwin dropped off the passengers and ran a few errands around Kooskia. Eventually, he picked
up Lynch and the pair drove to Robinette’s property to go shooting.
          At Robinette’s property, Godwin and Lynch met up with Robinette, Ruiz, and a few
others. The group again discussed their belief that Anderson was in possession of Robinette’s
stolen firearms. At some point, either Robinette, Griner, or both, informed Godwin that
Robinette’s father was offering a $500 reward for the recovery of the guns. Godwin agreed to
take Ruiz to retrieve the guns from Anderson.
          At that time, Anderson lived with his girlfriend, Amanda Jones, in a large motorhome
parked on a pullout along the Clearwater River about a half mile outside of Kooskia. Anderson
also had a small Geo car parked on the pullout. That night, Anderson’s son, Joseph Anderson,
was also staying at the trailer.
          After leaving Robinette’s property, Godwin ran a few other errands, but then drove
towards the pullout. In his vehicle, Griner sat in the passenger seat, Ruiz sat behind Griner in the
back passenger seat, and Lynch sat behind Godwin in the driver’s side backseat. Seeing that
Anderson’s car was parked by the motorhome, Godwin passed the pullout without stopping. He
drove back to town until eventually circling back to the pullout and pulling up to Anderson’s
motorhome.
          The events that followed were contested at trial. A balance of the testimony showed that
Godwin pulled up while Anderson and Jones were outside and Joseph was inside the
motorhome. At some point thereafter, Godwin shot Anderson through the neck underneath his

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chin from a distance of six inches to two feet. The bullet passed into Anderson’s spinal cord,
impacted the back of the vertebral column completely transecting the spinal cord and
immediately causing Anderson to drop. An autopsy would later show abrasions over Anderson’s
back and right shoulder consistent with someone having dragged him by his feet. Eventually,
however, Anderson’s body came to rest on the gravel next to his motorhome.
       Many things happened after the shot was fired. Lynch darted from the car and made his
way along the highway back to Kooskia. Jones alleged that Godwin aimed his gun at her and
demanded to know where the guns were located; however, she was able to break away and lock
herself in the motorhome with Joseph. After Anderson’s gun was obtained by either Godwin or
Ruiz, Godwin then drove his car, with Griner and Ruiz inside, back towards Kooskia. Almost
immediately after getting back on Toll Road, they passed the on-duty Deputy Keith Olson of the
Idaho County Sheriff’s Department driving a Sheriff’s Department truck featuring a large logo
on the side. No one in Godwin’s vehicle attempted to flag down Deputy Olson’s vehicle.
       Deputy Olson then passed Jones who was driving Anderson’s small car as he patrolled up
Toll Road. Seeing that Jones had both hands out the window in an attempt to flag him down,
Olson stopped to speak with her. He then called for an ambulance and followed her to the
pullout. Upon arrival, Deputy Olson discovered Anderson’s body, cancelled the ambulance,
radioed dispatch for additional officers, and secured the crime scene.
       Later, Corporal Randy Long, Detective Brian Hewson, Lieutenant Doug Ulmer, and
Lieutenant Jerry Johnson arrived on the scene. While Detective Hewson investigated the crime
scene, Lieutenant Johnson took Jones and Joseph to the Kooskia Sheriff’s Office for interviews.
After identifying some people of interest, Lieutenant Ulmer went to Godwin’s unoccupied
trailer. There, he noticed the trailer had been left in disarray. Rifles and an overturned gallon of
milk had been left outside the front door and a plastic grocery bag of prescription pills lay in the
middle of the lawn. After receiving Godwin’s phone number from dispatch, Lieutenant Ulmer
called Godwin at around 3:00 a.m. on the morning of June 10. When Godwin answered,
Lieutenant Ulmer asked him where he was. Godwin said he was at home. Lieutenant Ulmer
advised Godwin that he was at Godwin’s trailer home. Godwin then informed Lieutenant Ulmer
that he was in Dudley, Idaho, and had left the Kooskia area around noon the day before.
Lieutenant Ulmer told Godwin that he wished to talk to him in person, asked him to get in touch
with the sheriff’s office, and ended the call.

                                                 3
         At about 8:00 a.m. on the morning of June 10, Godwin called Lieutenant Ulmer and
informed him that he was on his way back to Kooskia and wanted to know where he could meet
with him. Lieutenant Ulmer told Godwin to meet him at the Kooskia Sheriff’s Office. Instead of
Lieutenant Ulmer, however, Detective Hewson met Godwin when he arrived and the two went to
a conference room for an interview.
         Upon initial questioning, Godwin told Detective Hewson that he had been up in Dudley,
Idaho, the previous day. Detective Hewson asked Godwin if he knew why they wanted to talk to
him. Godwin replied that Lieutenant Johnson had told him that Anderson had been murdered, but
claimed he didn’t know who Anderson was. After Hewson told Godwin that people had seen him
in the Kooskia area past the time Godwin said he left, the following exchange occurred:
                  Q. Okay. Well, there’s people that definitely saw you here at 7:00 last
                  night.
                  A. (Inaudible). No, wasn’t here at 7:00.
                  Q. There’s people that saw you at the trailer at 7:00, Jason. That’s what
                  I’m talking about.
                  A. (Inaudible).
                  Q. I’m not trying to ride you, please.
                  A. Okay.
                  Q. Okay. I don’t like treating people like that, but you got to kind of
                  understand what I am—
                  A. They’re trying to accuse me of shooting this guy or (inaudible)?
                  Q. They are saying that, yes, something happened between you and him,
                  and it was more or less an accident. And that’s all we’re trying to get
                  cleared up. If something happened between you guys and it was an
                  accident, I wish that you would talk to us about it.
                  A. Fine. Pulled up there and—
                  Q. What time?
                  A. — the guy pointed a gun at me, and I grabbed my gun and shot him.
                  Q. Okay.
                  A. And then I left. 1



1
 The transcript of this interview was created by the district court’s reporter for purposes of the suppression hearing.
After it was created, the parties were given a chance to object, and the court settled the transcript as filed on
September 24, 2014. At the trial, the jury listened to the interview but was not given a transcript. This opinion
quotes the transcript settled by the court.

                                                          4
       Hewson asked follow-up questions, prompting Godwin to reveal more details about the
shooting during which Godwin reaffirmed the shooting was in self-defense. Godwin also
informed Hewson that he had taken the gun Anderson threatened him with and hid it in his trailer
along with the firearm Godwin had used to shoot Anderson. Detective Hewson then decided to
read Godwin his Miranda rights prompting the following exchange:
              A. I know I ain’t supposed to say nothing. I put vows to not say nothing to
              him, but, you know, like I told everybody, it was self-defense. I told Carla.
              They seen him pull a gun out.
              Q. Yeah. Well, have you ever had your rights read to you, your Miranda
              rights? Because I’m going to do that anyway.
              A. Are you going to arrest me?
              Q. I don’t make those kind of decisions, okay. I probably won’t arrest you.
              That doesn't mean that somebody else like Jerry or somebody might, but
              I'm just telling you right out of the gate that it looked or sounded to me
              like a scenario that happened—
              A. (Inaudible) drug dealer, and Ernie was going to rip him off. That’s all I
              know.
              Q. It sounded like a scenario to me that happened; that it wasn’t meant to
              happen. Somebody didn’t go out there just to kill a man, you know. That’s
              what it looked like to me, okay.
              A. Well, he pointed the gun at me, and that’s when I shot a guy — shot.
              That’s all there is to it.
              Q. Yeah. Let me see if he has a rights waiver. You should know your
              rights.
              A. (Inaudible) my rights?
              Q. Pardon me?
              A. (Inaudible) waive my rights?
              Q. No. I’m going to read you your rights. That’s what I'm going to do. I’m
              going to see if one of these guys has—
              A. You shouldn’t be reading it to me after I already said something.
              Q. I didn’t have to read them to you to begin with, and I still don’t,
              because I would have to read you your rights if you were under arrest and
              then I questioned you. You weren’t under arrest or detained at the time I—
              that we started talking. I just want to make sure that you know—do you
              have a rights waiver, just a Miranda warning?
              SPEAKER: Yeah, yeah. Let me go grab it.
              Q. (By Mr. Hewson) All right. Thank you.

                                                5
               A. Yeah, I screwed up, but self-defense. That’s all there is to it.
After a few more questions, Detective Hewson read Godwin his Miranda rights:
               Q. . . . Miranda warning is what this is. I want to make sure you know
               what your rights are. You have a right to know, right. If I can read it.
               A. I’m sorry, Augie (phonetic), but I ain’t an attorney.
               Q. I get it, and I knew you did, okay. That’s why I wanted to keep giving
               you—but let’s try again. I'm going to read this.
               A. (Inaudible) my life.
               Q. Pardon me?
               A. I never had—did anything like in any point in my life, and he’s
               pointing the gun right at my head, pretty close.
               Q. Let me read this to you, okay. You have the right to remain silent when
               questioned. That's pretty self-explanatory, right? If you choose to answer
               questions, statements you make can be used against you in a court of law.
               I said, they can be. You have the right to an attorney before and/or during
               questioning. If you are unable to afford a lawyer and if you need one, one
               will be appointed to you by the Court. And he’s a good lawyer. I know
               him. Do you understand those? And you can stop talking to me, Jason,
               anytime you want, okay?
               A. I may have to.
               Q. But as—as like we started out, you didn’t start down a good—
               A. (Inaudible). A guy gets hisself (sic) in a situation. I really didn’t mean
               to get in that situation.
       After more questioning, the interview was paused for Hewson to speak with his
supervisor and Godwin took a cigarette break. Godwin also gave his consent to search his trailer
to recover his gun and the gun taken from Anderson. The entire interview lasted a little less than
an hour. Elsewhere, at the same time of Godwin’s interview, Lieutenant Ulmer conducted a
photo identification line-up with Jones in which Jones was unable to positively identify Godwin
as the shooter. At the end of Godwin’s interview, Detective Hewson spoke with Lieutenant
Ulmer and a county prosecutor and, at the conclusion of the discussion, the decision was made to
arrest Godwin and place him in handcuffs. Later the following day, upon the issuing of a
warrant, the guns were recovered from a storage space under the bed in Godwin’s trailer.
       On June 24, 2014, the State filed an information against Godwin alleging murder in the
second degree. Godwin pleaded not guilty and filed a pretrial motion to suppress his statements
to Detective Hewson. Godwin argued that the statements were involuntary and he had invoked


                                                  6
his right to counsel and refused to waive his Miranda rights. The State objected. After holding an
evidentiary hearing, the district court denied the motion.
       A few weeks prior to trial, on February 10, 2016, the State filed a motion in limine
seeking to have the court prohibit two proposed defense witnesses from testifying about “specific
instances of conduct showing that [Anderson] was violent and aggressive.” Both witnesses were
expected to testify that Anderson had pointed a gun at them on prior occasions. The court did not
hear argument on the motions until the afternoon of the second day of trial—after jury selection
and voir dire, but before opening statements. In argument, the defense acknowledged that
binding case law did not support their position, but argued that the court should nevertheless
admit the testimony about the specific acts and overrule the contrary authority. The defense
pointed to significant similarities between the proposed testimony and Anderson’s alleged
conduct on the night of the shooting. Unpersuaded, the court orally ruled that specific instances
of conduct were inadmissible for the defense’s proposed purpose but also commented that the
defense may produce reputation or opinion testimony with proper foundation. The following
morning, the court filed a written order granting the State’s motion on the specific–act evidence.
The order noted that reputation or opinion evidence would be allowed, but did not impose a
foundational requirement.
       During its case-in-chief, the State called Jones, who testified as follows. Anderson was
putting license plates on the motorhome as Godwin pulled up. While doing so, Anderson had a
firearm holstered in a special pocket stitched into the back of his vest. Godwin already had his
gun aimed out of the vehicle’s window before it stopped two to three feet away from Anderson
and Jones. Then Godwin began screaming at them while pointing the gun at Anderson. After
Godwin ceased yelling, Anderson asked what was going on, and, at that moment, Godwin shot
him. Jones stated the whole interaction lasted no longer than a minute and a half and during that
time, Anderson’s hands were empty. Although, at other times, she testified he had a license plate
or a screwdriver in his hands.
       Lynch also testified that Godwin had his gun pointed at Anderson as they pulled up and
he did not see Anderson with a gun. He stated that Godwin said something to the effect of
“Don’t do it” to Anderson during the interaction. Ruiz also claimed at trial that he did not see a
gun nor see Anderson reach for a gun. He added that after the shooting Godwin had dragged
Anderson to the car and wanted to “get rid of him.” Two other witnesses testified that while

                                                 7
Godwin was in jail, he had initially claimed the killing was in self-defense, but, when pressed,
admitted that he had killed Anderson after Anderson claimed he didn’t know anything about the
guns. The State introduced numerous pieces of evidence from the scene of the crime and played
an audio recording of Godwin’s interview with Detective Hewson.
       The defense impeached Lynch and Ruiz with prior interviews they had given to police in
which Lynch stated that Anderson had brandished a gun and Ruiz said that Godwin stated to
Anderson right after the shooting, “you pulled a gun on me. . . . I told you not to move.” Godwin
testified in his defense to the following sequence of events: Upon his arrival at Anderson’s
motorhome, Anderson and Jones were standing next to the Geo car and “started . . . after”
Godwin’s vehicle by “walking real fast towards” them. Anderson then pulled a gun out of his
waistband. Upon seeing this, Godwin grabbed his pistol, took it out of its holster, and yelled at
Anderson “don’t, don’t” and “[d]rop the gun, don’t, don’t pull the gun.” Godwin said he shot
Anderson only after Anderson aimed the gun at him and cocked the hammer. After the shot was
fired, Godwin testified that he thought Anderson was still alive so he tried to get Anderson into
his car to get him medical attention, but was unable to do so. Godwin further claimed that he did
not realize they had taken Anderson’s gun until they had returned to Godwin’s trailer and he
noticed that Ruiz was wiping the gun down with a t-shirt. Godwin took the gun from Ruiz,
wrapped in the t-shirt, and placed it under his bed.
       After a little over two and a half hours, the jury returned a verdict of guilty to second
degree murder. The district court sentenced Godwin to twenty-five years indeterminate with
fifteen years determinate.
                                   II.    ISSUES ON APPEAL
   1. Did the district court abuse its discretion in denying Godwin’s motion to suppress by
      finding that Godwin was not in custody for Miranda purposes during his interview?
   2. Should this Court overrule State v. Custodio and hold that specific instances of conduct
      are admissible to show a victim’s character for aggression or violence in self-defense
      cases?
   3. Did the district court err by misstating the law while orally articulating its ruling that it
      would grant the State’s motion in limine even though it later issued a written order that
      did not contain the misstatement?
   4. Has Godwin carried his burden to show fundamental error based on the jury instructions
      he requested?
   5. Has Godwin carried his burden to show fundamental error based on the prosecutor’s
      statements during closing?

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   6. Do the errors in this case, when aggregated, show the lack of a fair trial pursuant to the
      cumulative error doctrine?
                              III.    STANDARD OF REVIEW
       Because the discrete issues in this case each implicate their own standard of review, the
standard will be set out under each issue’s respective subheading.
                                       IV.    ANALYSIS
   1. The district court did not err when it denied Godwin’s motion to suppress because
      the totality of the circumstances shows that Godwin was not in custody during his
      interview.
       Godwin’s arguments regarding the district court’s denial of his motion to suppress
address two distinct time periods during his interview. First, Godwin contends that his initial
confession transformed the voluntary questioning into a custodial interrogation, thereby
requiring suppression of all statements between the initial confession and the subsequent
Miranda warnings. Second, Godwin argues that all statements made subsequent to the delayed
Miranda warnings should be suppressed because the officer used a deliberate two-step
interrogation process which failed to properly apprise Godwin that a separate round of
interrogation had begun. In support of his argument, Godwin urges this Court to adopt an
approach to the Miranda-custody analysis whereby a defendant is automatically considered to be
in Miranda custody the moment a confession to a serious crime is uttered. The State responds by
contending these arguments were not raised below. The State also argues that, given the totality
of the circumstances, the district court properly concluded that Godwin was never in custody
and, even if this Court does find that Godwin was in custody, the district court’s error was
harmless.
       Concluding that Godwin adequately raised this issue below, we nevertheless hold that
Godwin was not in custody during his interview with Detective Hewson. Therefore, we need not
address Godwin’s subsequent Miranda-based arguments.
            a. Standard of Review
       In reviewing a district court order granting or denying a motion to suppress
       evidence, the standard of review is bifurcated. This Court will accept the trial
       court’s findings of fact unless they are clearly erroneous. However, this Court
       may freely review the trial court’s application of constitutional principles in light
       of the facts found.
State v. James, 148 Idaho 574, 576, 225 P.3d 1169, 1171 (2010) (citations omitted).


                                                9
           b. Analysis
                   i. Godwin adequately preserved this issue on appeal.
       First, the State contends that Godwin’s theory on appeal was not adequately preserved
below. Specifically, the State relies on State v. Garcia-Rodriguez to argue that Godwin presents
a theory distinct from the theory he presented below. 162 Idaho 271, 396 P.3d 700 (2017). The
State argues it is “manifestly unfair” to ask an appellate court to decide a question which was
never presented to the trial court. Godwin concedes that the issues raised in his motion to
suppress concerned (1) the voluntariness of his confession and (2) whether he invoked his right
to counsel and refused to waive his Miranda rights. But Godwin points out that his
transformation-upon-confession theory was touched upon in his memorandum in support of his
motion to suppress and expanded upon at the suppression-motion hearing. Godwin contends that
his theory on custody is “part and parcel of the custodial interrogation issue,” because the trial
court never reached his adequacy-of-warnings argument after it determined Godwin was not in
custody. As a result, Godwin argues he is “obligated to address this issue on appeal.”
       This Court “ha[s] long held that appellate court review is limited to the evidence, theories
and arguments that were presented below.” Garcia-Rodriguez, 162 Idaho at 275, 396 P.3d at 704
(quoting Nelson v. Nelson, 144 Idaho 710, 714, 170 P.3d 375, 379 (2007)) (internal quotation
marks omitted). “Generally, an issue presented on appeal must have been properly framed and
preserved in the court below.” Fed. Home Loan Mortg. Corp. v. Butcher, 157 Idaho 577, 581,
338 P.3d 556, 560 (2014) (citation and quotation marks omitted).
       In Garcia-Rodriguez, this Court affirmed a district court’s grant of a defendant’s motion
to suppress evidence stemming from a traffic stop in which the arresting officers found a large
amount of cash and a drug dog alerted to the presence of drugs. 162 Idaho at 276, 396 P.3d at
705. Below, the State “consistently argued that [the defendant] was arrested pursuant to Idaho
Code section 49-301(1) for driving without a license” and the arresting officer “reasonably
concluded” the defendant likely would not appear for court which justified his arrest under Idaho
Code sections 49-301 and 49-1407. Id. at 275, 396 P.3d 704. On appeal, the State presented a
new argument altogether: the officer “developed probable cause to believe that [the defendant]
had no driver’s license, a violation of I.C. § 49-301(1)” which “alone constitutionally justified
[his] arrest.” Id. at 274–75, 396 P.3d at 703–04. Agreeing with the defendant’s argument that this



                                                10
theory was raised for the first time on appeal, this Court rejected the State’s appellate argument
because it was “nowhere to be found” in the record below. Id. at 275, 396 P.3d at 704.
       In this case, Godwin’s arguments below contain references to how “something changed”
in the interview after his inculpatory statements. Godwin’s brief in support of his motion to
suppress made statements that underlie the premise of his appellate argument (E.g., “At least at
that time, Corporal Hewson had made a decision that Jason Godwin was not going to be leaving
the station, having made a confession”; “However, having already made statements while in
custody, the defendant was trapped.”). Similarly, Godwin’s memorandum cited language and
authority—namely State v. Hamlin, 156 Idaho 307, 313, 324 P.3d 1006, 1012 (Ct. App. 2014)—
addressing what constitutes “custody” in the context of a custodial interrogation under Miranda.
       At the suppression hearing, the court asked Godwin’s counsel for clarification on the
custody argument, stating: “Does the fact that he is, for argument sake, the suspect, they think
they found their person, how is that relevant? Does it change the situation in terms of
determining custodial interrogation?” Godwin’s counsel responded by stating that it “weighs on
what people were thinking . . . and what their intentions were, and whether they really—anyone
believed that Jason Godwin was going to be free to leave when he walked into that room.” The
court responded by asking whether such factors are relevant when the Miranda custody
determination also asks whether there were restrictions on freedom of movement.
       In response, Godwin’s counsel referenced Hamlin and talked about how “something
changed” during the interview regarding whether Godwin was in custody:
       I believe it was possibly Hamblin [sic] but—whether a reasonable person in the
       suspect’s position would have understood his or her situation. . . . even Detective
       Hewson talked about the fact that there was—something changed, something in
       the interview. So, at least at that point in time there was a recognition that
       something is going on here. . . . I think with a video it would have been maybe—
       we could have even seen body language and seen a change in the atmosphere at
       the police station that would have given us indication of something else is going
       on here, something—something that’s changing this from whatever you want to
       call it, a conversation or an interview, into an interrogation. And an interrogation,
       by that I mean a custodial interrogation.
       This question and answer centers on the tension between two considerations in the
Miranda-custody determination: (1) what a reasonable person in the suspect’s position would
have understood his position to be, and (2) restrictions on freedom of movement. As Godwin
argues here, some courts rely heavily on the “reasonable person in the suspect’s position” prong


                                                11
of the inquiry when determining whether custody attaches at the moment of confession. In its
written ruling, the district court denied Godwin’s motion on two principal grounds: (1) Godwin’s
statements were voluntary, and (2) Godwin did not invoke his right to counsel. Importantly, the
district court also held: (3) even if Godwin did invoke his right to counsel, the invocation was
ineffective because he did not carry his burden to show that he was in custody.
       As a result, instead of being “nowhere to be found” in the record below, the bedrock of
Godwin’s appellate argument is present in the record and the district court made a determination
on the issue of custody. Accordingly, Godwin properly presents this issue on appeal.
                  ii. Godwin’s admission to shooting Anderson in self-defense did not
                      transform his voluntary interview into a custodial interrogation.
       Godwin argues that he presents a matter of first impression for this Court: whether a
suspect’s confession to a serious crime transforms an otherwise voluntary interview with police
into a custodial interrogation under Miranda.
       The Supreme Court of the United States recently summarized the custody determination
under Miranda:
       As used in our Miranda case law, “custody” is a term of art that specifies
       circumstances that are thought generally to present a serious danger of coercion.
       In determining whether a person is in custody in this sense, the initial step is to
       ascertain whether, in light of “the objective circumstances of the interrogation,” a
       “reasonable person [would] have felt he or she was not at liberty to terminate the
       interrogation and leave.” And in order to determine how a suspect would have
       “gauge[d]” his “freedom of movement,” courts must examine “all of the
       circumstances surrounding the interrogation.” Relevant factors include the
       location of the questioning, its duration, statements made during the interview, the
       presence or absence of physical restraints during the questioning, and the release
       of the interviewee at the end of the questioning.
       Determining whether an individual’s freedom of movement was curtailed,
       however, is simply the first step in the analysis, not the last. Not all restraints on
       freedom of movement amount to custody for purposes of Miranda. We have
       “decline[d] to accord talismanic power” to the freedom-of-movement inquiry, and
       have instead asked the additional question whether the relevant environment
       presents the same inherently coercive pressures as the type of station house
       questioning at issue in Miranda. “Our cases make clear . . . that the freedom-of-
       movement test identifies only a necessary and not a sufficient condition for
       Miranda custody.”
Howes v. Fields, 565 U.S. 499, 508–09 (2012) (citations omitted).
       The defendant bears the burden of establishing custody. James, 148 Idaho at 577, 225
P.3d at 1172. In recently applying the Miranda-custody analysis, this Court has also identified

                                                12
the following factors to aid the custody determination: “where the questioning occurred, the
duration of the interrogation, whether the defendant is informed that the detention may not be
temporary, and the intensiveness of the questions and requests of the police officer.” State v.
Andersen, 164 Idaho 309, 313, 429 P.3d 850, 854 (2018) (citing James, 148 Idaho at 578, 225
P.3d at 1173).
         On this issue, Godwin argues in the alternative. First, Godwin urges this Court to adopt
what he characterizes as a “bright-line rule” whereby a suspect is considered to be in Miranda
custody the moment the suspect confesses to a serious crime. However, if this Court declines to
adopt the bright-line approach, then Godwin advocates for this Court to declare that such an
admission is a significant factor in the Miranda-custody analysis. Godwin asserts that the district
court erred because, under either approach, a reasonable person in his position, “having admitted
to a police officer at the police station to shooting and killing a person,” would understand that
he was “subject to a restraint on his liberty akin to formal arrest.” We disagree and decline to
adopt either standard.
         First, Godwin did not confess to a serious crime. In his own words, he admitted to “self-
defense.” As such, the case law supporting his argument is ill-fitted to his situation. Furthermore,
this Court has already articulated that “a court must examine all of the circumstances
surrounding the interrogation” to determine whether Miranda custody attaches. Andersen, 164
Idaho at 313, 429 P.3d at 854 (citing James, 148 Idaho at 577, 225 P.3d at 1172). Whether a
suspect confesses to a crime is already considered when determining if a suspect is in Miranda
custody. Placing undue weight on this factor would not only create anomalous results (and
questions as to what constitutes a “serious crime”), but would also be inconsistent with this
Court’s precedent: “When evaluating the totality of the circumstances, no single fact is
controlling.” Id. at 314, 429 P.3d at 855.
         Godwin is correct that a number of state courts have held that a suspect is in custody
upon confession to a serious crime under the rationale that a reasonable person would not
perceive himself free to terminate the interrogation after such an admission. Notably, however,
none of these cases dealt with a suspect asserting a legal defense to the crime in their admission. 2


2
  See, e.g., State v. Pitts, 936 So.2d 1111, 1134 (Fla. Ct. App. 2006) (holding that defendant’s confession to holding
a gun on a then missing person meant “a reasonable person in [defendant’s] situation would have understood that he
would not be allowed to go free.”); People v. Ripic, 182 A.D.2d 226, 231 (N.Y. 1992) (finding custody after
defendant’s statement the she felt like she “had to kill him” because the victim, her husband, was abusive and she

                                                         13
Godwin also presents a line of cases which he contends hold that admission to a crime is a
“substantial factor” in the custody analysis. 3
         The most recent case to deal with this issue is State v. Bartelt, in which the Wisconsin
Supreme Court held that a defendant was not in custody when he confessed during an interview
with police officers and, therefore, his request for counsel did not trigger Miranda protections.
Bartelt, 906 N.W.2d 684, 699–700. In Bartelt, police suspected defendant of (1) murdering an
acquaintance and (2) attacking a different person with a knife in a park. Id. at 687–88. After
voluntarily coming to the police station for an interview, the defendant admitted to attacking the
woman in the park and requested counsel. Id. at 688. He was arrested shortly thereafter. Id. The
following day, police interviewed the defendant about the murder. Id. at 690. The defendant
admitted only to going to a park, but then requested counsel and terminated the interview. Id.
Police later discovered incriminating evidence in the park. Id. The district court denied
defendant’s subsequent motion to suppress his statements and any evidence stemming from
them. Id. at 690–91. A jury convicted the defendant of murder. Id. at 691.
         On appeal, the defendant argued that he was in custody when he requested counsel after
confessing to the attack in the park, so he should not have been interrogated the following day
about the murder. Id. The Wisconsin Supreme Court disagreed, holding, “although an admission


felt she could not divorce him); People v. Carrol, 742 N.E.2d 1247, 1249 (Ill. Ct. App. 2001) (affirming as not
“manifestly erroneous,” a trial court’s finding that defendant’s statement that he “struck his brother, started the car
and closed the garage door” would cause a reasonable person to believe they were in custody.); Jackson v. State, 528
S.E.2d 232, 234–35 (Ga. 2000) (holding that the defendant’s statement “I did it with a dude named Jack,” was
sufficient to cause defendant to “perceive himself to be in custody, and expect that his future freedom of action
would be significantly curtailed” when “it” referred to the murder-robbery of a pregnant attendant at a dry-cleaning
store.); Commonwealth v. Smith, 686 N.E.2d 983, 987 (Mass. 1997) (holding that defendant was in custody when,
after voluntarily coming to the police station, he “told the police that he was there to confess to the murder of his
girlfriend” because “if he had wanted to leave at that point, he would not have been free to do so.”); Kolb v. State,
930 P.2d 1238, 1244 (Wy. 1996) (holding that after defendant “suddenly confessed to killing [the victim]” he was in
custody for Miranda purposes despite providing apocryphal versions of the murder-kidnapping before that point
because “[a] reasonable person who confessed to a killing while being interviewed at a police station would not feel
free to terminate the interview and leave the station.”).
3
  See State v. Oney, 989 A.2d 995, 1000 (2009) (holding that defendant’s admissions to starting fires did not create a
custodial situation because “mere confession to what defendant believed to be three misdemeanors would not
necessarily lead a reasonable person in defendant’s circumstances to believe that he was not free to leave.”); Barlelt,
906 N.W.2d at 698, 699–700 (holding a defendant’s “admission to attacking [victim] was not enough to transform
his status to that of ‘in custody’ given the totality of the circumstances” because the confession “was not
immediately associated with a restraint on freedom of movement to the degree associated with formal arrest.”); Xu v.
State, 100 S.W.3d 408, 415 (2002) (holding defendant “was in custody from the moment he made his ‘pivotal
admission,’ [that he grabbed his wife by the throat when police knew the cause of death was strangulation] even
though he was not formally arrested until some time later” because the police failed to arrest him at that moment
only because they “believed they would have had a problem with custodial interrogation.”).


                                                         14
of guilt to a serious crime is a factor to consider in a custody analysis, [the defendant’s]
admission to attacking M.R. was not enough to transform his status to that of ‘in custody’ given
the totality of the circumstances.” Id. at 699–700. Though the defendant was questioned at a
police station and the detective increasingly treated the defendant as the target of a serious felony
investigation, the Bartelt court found that he was not in custody because he came to the police
station voluntarily, was questioned in an interview room with the door open, and the detective
informed him that he was not under arrest and could leave at any time. Id. at 684, 695–96.
       We follow a similar tack to the Bartelt court. Confession to a serious crime can be
considered as a factor in the totality-of-the-circumstances inquiry. Nevertheless, after an
examination of the totality of the circumstances found by the district court, we determine that
Godwin has failed to carry his burden to establish that he was in custody for purposes of
Miranda.
       First, while the questioning occurred at the Kooskia Sheriff’s Office, Miranda warnings
are not required “simply because the questioning takes place in the station house.” Andersen, 164
Idaho at 313, 429 P.3d at 854 (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). Rather,
“Miranda warnings are required only where there has been such a restriction on a person’s
freedom as to render him in custody” because it was “that sort of coercive environment to which
Miranda by its terms was made applicable, and to which it is limited.” Id. Here, the hallmarks of
a coercive environment are absent. Godwin concedes that he was not in custody when he sat
down with Officer Hewson to answer questions. As the district court found, Godwin arrived at
the police station voluntarily. The district court noted that Godwin was interviewed in a working
part of the sheriff’s office rather than an interrogation room. The Kooskia Sheriff Office
occupies the floor above the City Hall building, with a large main room. The back wall of the
main room features windows and a door leading to a conference room which contains two large
tables pushed together. After following Officer Hewson into the conference room, Godwin took
the seat closest to the door, which was closed, but unlocked. The conversation was recorded with
a digital audio recorder which was visible to Godwin during the duration of the interview. The
interview lasted around fifty minutes, during which Godwin exited the station to have a cigarette
break (albeit accompanied by an officer). This is not the “sort of coercive environment to which
Miranda by its terms was made applicable, and to which it is limited.” Andersen, 164 Idaho at
313, 429 P.3d at 854.

                                                 15
       Second, the “intensiveness” of police questioning does not weigh in favor of custody. As
noted by the district court, although other officers interacted with Godwin while he was at the
station, Officer Hewson was the only police officer in the room with Godwin while he was being
questioned. At no time during the interview was Godwin patted down, handcuffed, or otherwise
physically restrained. Moreover, the district court found that Officer Hewson was “not
threatening or intimidating.” While Officer Hewson did have his badge and gun attached to his
belt, he was not dressed in an official uniform, but was wearing a long-sleeved t-shirt with
“Idaho County Sheriff” printed on it and BDU (“Battle Dress Uniform”) pants.
       Third, the factor of whether the defendant was informed that the interaction might be
temporary also weighs against a finding of custody. Godwin contends that the detailed
questioning after his initial admission of “homicide” shows that the interview transformed into a
custodial interrogation. Godwin argues that Hewson used “implicitly coercive” tactics by using
minimization techniques, insinuating that things would be better if Godwin told the truth, and
analogizing the situation to the old horror movie The Hills Have Eyes to imply that one never
knows when they’re being watched. Lastly, Godwin asserts that Hewson told Godwin he was not
free to leave until he was satisfied with his answers. To support this, Godwin points to statements
made by Hewson.
       The tactics used by the officer during an interrogation may be considered when
determining whether the interview was coercive, but are only part of the totality-of-the-
circumstance inquiry for custody. Furthermore, “[d]eceptive police practices do not necessarily
create coercion which would render a suspect’s subsequent confession involuntary and
excludable” so it follows that such practices are not enough to automatically convert a voluntary
interview into a custodial interrogation. State v. Smith, 162 Idaho 878, 883, 406 P.3d 890, 895
(Ct. App. 2017) (citation omitted). Here, the district court found that there was no coercive
police conduct below. Godwin’s admission did not substantially change the tenor of the
interview from the time of his admission to the moment he was given his Miranda warnings.
While Officer Hewson did not expressly tell Godwin that he was not under arrest or free to leave,
the district court correctly noted that he did not tell Godwin that he had to stay and answer
questions. When Hewson said that he “probably” wouldn’t arrest Godwin but somebody
“might,” the implication is Godwin may be arrested in the future, but was not currently under
arrest. While such a statement is not conclusive, it would not lead a reasonable person in

                                                16
Godwin’s position to understand his position to be that of “formal arrest or restraint on freedom
of movement of the degree associated with a formal arrest.” James, 148 Idaho at 576–77,
225 P.3d at 1171–72 (citing California v. Beheler, 463 U.S. 1121, 1125 (1983) (quotation marks
omitted).
         Lastly, Godwin’s subsequent arrest does not automatically mean that Godwin was “in
custody” during the interview. See Stansbury v. California, 511 U.S. 318, 325 (1994) (“Even a
clear statement from an officer that the person under interrogation is a prime suspect is not, in
itself, dispositive of the custody issue, for some suspects are free to come and go until the police
decide to make an arrest.”); see also Bartelt, 906 N.W.2d at 698 (“[T]hat [defendant] was
arrested at the end of his interview does not necessarily mean that he was in custody at any point
prior to his arrest.”). After Godwin’s confession, Hewson discussed Godwin’s claims with
Lieutenant Johnson and a prosecutor. The decision to arrest Godwin was made only after the
discussion revealed that, at that time, there was no corroborating evidence of another gun at the
scene.
         In sum, the totality of the circumstances shows that Godwin was not in custody during
the interview with Detective Hewson. Therefore, the district court did not err in denying
Godwin’s motion to suppress by concluding that Miranda protections did not apply to his
questioning. As a result, Godwin’s remaining claims regarding Miranda violations are
inapplicable.
   2. We decline Godwin’s invitation to overrule State v. Custodio and instead confirm
      that specific instances of a victim’s conduct are inadmissible under Rule 405 of the
      Idaho Rules of Evidence.
         In a motion in limine filed a few weeks before trial, the State asked the court to prohibit
the expected testimony of two proposed defense witnesses “about specific instances of conduct
showing that [Anderson] was violent and aggressive.” Both witnesses were expected to testify
that Anderson had pointed a gun at them on prior occasions. The court granted the motion,
issuing an order prohibiting “any statements or references to specific incidents in which Kyle
Anderson pointed a gun at any witness” under Rule 405 of the Idaho Rules of Evidence. The
court followed the Court of Appeals’ decision in State v. Custodio which concluded that a
victim’s character for violence or aggression is not an essential element of a self-defense claim
as required for the admission of specific-act evidence under Rule 405. 136 Idaho 197, 30 P.3d
975 (Ct. App. 2001).

                                                 17
        Godwin asks this Court to overrule Custodio as incorrectly decided and patently unfair to
criminal defendants. Godwin argues that it is unjust to hold a victim’s propensity for violence
inadmissible under Rule 405(b) on the rationale that it is not an essential element of the defense.
Specifically, Godwin argues that the “rigid rule articulated in Custodio renders Rule 405(b) a
nullity, as it applies to defenses” because “a victim’s specific act evidence can never be
admissible for a self-defense claim.” The State responds by arguing that Godwin has failed to
show any basis for disavowing Custodio and points out that the plain language of Rule 405
requires the relevant character trait to be “an essential element of the charge, claim, or defense”
in order to use specific acts to prove character. I.R.E. 405(b). The State also argues that
Godwin’s position is a minority rule and Idaho’s case law supports following the majority rule.
           a. Standard of Review
        “The trial court’s judgment concerning admission of evidence shall ‘only be disturbed on
appeal when there has been a clear abuse of discretion.’” State v. Hill, 161 Idaho 444, 447, 387
P.3d 112, 115 (2016) (quoting State v. Perry, 150 Idaho 209, 218, 245 P.3d 961, 970 (2010)).
Accordingly, such decisions are subject to the four-part abuse of discretion analysis:
        Whether the trial court: (1) correctly perceived the issue as one of discretion; (2)
        acted within the outer boundaries of its discretion; (3) acted consistently with the
        legal standards applicable to the specific choices available to it; and (4) reached
        its decision by the exercise of reason.
Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018). However, the trial
court’s “interpretation of a rule of evidence, like the interpretation of a statute, is reviewed de
novo.” Hill, 161 Idaho at 447, 387 P.3d at 115 (citing State v. Moore, 131 Idaho 814, 821, 965
P.2d 174, 181 (1998)).
         Here, Godwin challenges the interpretation of Rule 405 articulated by the Court of
Appeals in Custodio and adopted by the district court, rather than arguing that specific evidence
was wrongly excluded under the rule. Accordingly, this Court will review that interpretation de
novo.
           b. Analysis
        Whether specific-act evidence may be used to show that a person acted in conformity
with a character trait in self-defense claims is covered by two evidentiary rules: Rule 404 and
405 of the Idaho Rules of Evidence (“Rule 404” and “Rule 405”). Both rules have recently been
amended, but we address the rules as they applied at the time of Godwin’s trial.


                                                18
        Rule 404 governs the admissibility of character evidence. Subsection 404(a) states the
general prohibition against character evidence while subsection 404(a)(2) articulates an
exception to the general rule:
               (a) Character evidence generally. Evidence of a person’s character or a
               trait of character is not admissible for the purpose of proving that the
               person acted in conformity therewith on a particular occasion, except:
                                                    ....
                       (2) Character of Victim. Evidence of a pertinent trait of character
                       of the victim of the crime offered by an accused, or by the
                       prosecution to rebut the same, or evidence of a character trait of
                       peacefulness of the victim offered by the prosecution in a homicide
                       case to rebut evidence that the victim was the first aggressor; . . .
I.R.E 404 (1985) (amended 2018).
       While Rule 404 concerns the admissibility of character evidence, Rule 405 specifies the
allowable methods of proving character:
               (a) Reputation or opinion. In all cases in which evidence of character or
                   a trait of character of a person is admissible, proof may be made by
                   testimony as to reputation or by testimony in the form of an opinion.
                   On cross-examination, inquiry is allowable into relevant specific
                   instances of conduct.
               (b) Specific instances of conduct. In cases in which evidence of character
                   or a trait of character of a person is an essential element of a charge,
                   claim, or defense, proof may also be made of specific instances of the
                   person’s conduct.
I.R.E. 405 (1985) (amended 2018). Rule 405 requires specific-act evidence to be an essential
element of the crime because it is the most convincing type of evidence and therefore “possesses
the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time.” F.R.E.
405 (2011) advisory committee’s note (citing McCormick § 153). Therefore, “[w]hen character
is used circumstantially and hence occupies a lesser status in the case, proof may be only by
reputation and opinion.” Id.
       When applying both rules to self-defense cases, Rule 404(a) permits a defendant to
present evidence of a victim’s propensity for violence for certain purposes. I.R.E 404; Marr v.
State, 163 Idaho 33, 37, 408 P.3d 31, 35 (2017); State v. Hernandez, 133 Idaho 576, 584, 990
P.2d 742, 750 (Ct. App. 1999). However, Rule 405 limits the form of such evidence to opinion
and reputation testimony because the victim’s propensity for violence is not an essential element
of the claim. Custodio, 136 Idaho at 204, 30 P.3d at 982. For self-defense claims, Rule 405’s


                                                19
prohibition of specific act evidence is consistent with the long-standing law in Idaho before the
adoption of the Idaho Rules of Evidence. State v. Dallas, 109 Idaho 670, 679, 710 P.2d 580, 589
(1985) (noting that while the victim’s reputation for being quarrelsome is admissible for certain
purposes, it “may not be extended to include specific acts.”) (quoting State v. Wilson, 41 Idaho
616, 243 P. 359 (1925)). This well-established law shares the same rationale as Rule 405:
       Idaho law did not permit the accused to introduce evidence of specific instances
       of the victim’s prior conduct in order to support an inference that the victim was
       the first aggressor. The reason for this prohibition is that evidence of specific
       instances of the victim’s conduct, while probative, tends to be highly prejudicial.
       The bad character of the deceased is likely to be thought of by the jury as an
       excuse for the killing. Learning of the victim’s bad character could lead the jury
       to conclude that the victim merely “got what he deserved” and to acquit for that
       reason. Accordingly, the majority view is to disallow such evidence.
Dallas, 109 Idaho at 679, 710 P.2d at 589 (1985) (citations omitted).
       This underlying rationale guided the Court of Appeals in Custodio. There, the defendant
was kicked out of a house party after an altercation with party-goers only to return with a
baseball bat and a gun. Custodio, 136 Idaho at 200, 30 P.3d at 978. In the ensuing fight, the
defendant shot and killed two men while wounding a third individual. Id. After he was convicted,
the defendant appealed and argued that the district court erred in excluding testimony of a
defense witness relating to a victim’s specific act of prior aggressive conduct. Id. at 203, 30 P.3d
at 981. The district court held such testimony was admissible under Rule 404 in light of the
defendant’s self-defense claim, but nevertheless needed to be excluded because Rule 405
permitted only opinion or reputation evidence on the claim, rather than specific-act evidence. Id.
       The Court of Appeals found no error because Rule 405’s plain language requires that “in
order for proof of [a] person’s character to be admissible in the form of specific instances of
conduct the character trait must be an essential element of a charge, claim, or defense.” Id. at
204, 30 P.3d at 982. Holding that the victim’s character trait for aggression or violence is not
indispensable to a successful self-defense claim, the Custodio court agreed with the Ninth Circuit
Court of Appeals’ decision in United States v. Keiser:
       Proof of a victim’s propensity for violence, standing alone, does not prove an
       element of a claim of self-defense. Proof of a victim’s violent character does not
       show that the victim was the first aggressor in a particular conflict, nor does proof
       of a victim’s passive demeanor foreclose the defendant from asserting a claim of
       self-defense.



                                                20
Id. (discussing Keiser, 57 F.3d 847 (9th Cir. 1995)). As a result, while such evidence was
relevant for the purpose of inferring that a victim acted in conformity with violent propensities,
the victim’s propensity for violence is not an essential element of a claim of self-defense. Id.
        Despite the plain language of the rule, its rationale, and a firm basis in Idaho case law,
Godwin advocates for this Court to allow specific instances of character evidence where there is
dispute about who was the first aggressor. In support, Godwin points to the standard adopted by
the Supreme Court of Massachusetts in Commonwealth v. Adjutant, 824 N.E.2d 1, 12 (2005).
The Adjutant court disagreed that the concerns regarding specific-act evidence required a
wholesale exclusion because “[t]estimony about the victim’s prior acts of violence can be
convincing and reliable evidence of the victim’s propensity for violence.” Id. (citations omitted).
The Adjutant court adopted a rule where a trial judge has discretion to admit specific-act
evidence of prior violent conduct to support a claim that the victim initiated the altercation when
the identity of the first aggressor is in dispute. Id. The rule relied on providing limiting
instructions to the jury to mitigate possible prejudice along with the trial judge’s discretion “to
exclude marginally relevant or grossly prejudicial evidence” to prevent “the undue exploration of
collateral issues.” Id. at 13.
        We are not persuaded to follow the Adjuntant court’s approach. First, Idaho has long-
standing law on this issue. See Dallas, 109 Idaho at 679, 710 P.2d at 589 (1985). “[T]he rule of
stare decisis dictates that we follow [controlling precedent], unless it is manifestly wrong, unless
it has proven over time to be unjust or unwise, or unless overruling it is necessary to vindicate
plain, obvious principles of law and remedy continued injustice.” State v. Dana, 137 Idaho 6, 9,
43 P.3d 765, 768 (2002) (quoting Reyes v. Kit Manufacturing Co., 131 Idaho 239, 953 P.2d 989
(1998)). Second, Massachusetts does not have codified rules of evidence like Idaho does, so the
Adjuntant court was crafting a rule out of whole cloth. See MA Guide to Evidence § 102
(“Because Massachusetts has not adopted rules of evidence, the development of Massachusetts
evidence law continues to be based on the common law and legislative processes.”). If this Court
were to adopt Massachusetts’ approach, we would do so in the face of the plain language of Rule
405, which disallows specific act evidence unless it pertains to an “essential element” of the
claim. Lastly, Idaho’s approach to specific act evidence is the majority rule. See Adjutant, 443
Mass. at 675, 824 N.E.2d at 20 (Cowin, J., dissenting) (pointing out that the “majority of
jurisdictions cited by the court that have considered the issue of victim character evidence do not

                                                 21
permit the use of specific act evidence unknown to the defendant to prove who was the first
aggressor, but instead permit only reputation or opinion evidence to show a victim’s violent
character.”). Thus, Godwin has failed to show that the prohibition on specific-act evidence
should be altered. Accordingly, we decline Godwin’s invitation to create an exception to Rule
405’s prohibition on specific-act evidence in self-defense cases by overruling Custodio and other
prior precedent.
   3. The district court’s overbroad statement regarding the foundational requirement
      for the presentation of opinion or reputation evidence of a victim in a self-defense
      case does not constitute error because the misstatement was corrected by the court’s
      written ruling.
       Godwin asserts that the district court erred by imposing an overbroad foundational
requirement of proving Godwin was aware of Anderson’s propensity for violence before
producing reputation or opinion testimony regarding Anderson’s character. For this issue,
Godwin directs this Court to a solitary oral statement made by the district court in the late
afternoon of the second day of trial. After jury selection and voir dire, the court heard argument
on motions in limine filed by both the State and the defense out of the presence of the jury.
While telling the parties how it would rule on the State’s motion in limine related to specific-act
evidence, the court stated:
       The general rule is that evidence of character is not admissible to prove conduct at
       a specific incident, meaning propensity. There’s an exception to the general rule
       that alleged that the defendant that was acting in self-defense in certain instances
       to bring forth propensity but only can be made as to reputation and opinion
       testimony is my reading of Custodio. And if you read the trial court in Custodio,
       the trial court said that he had previously allowed opinion testimony with
       reference to propensity for violence and reputation for the same. So, this order
       does not bar that type of evidence from being introduced, if there’s a proper
       foundation that the defendant in this case had knowledge of the same or it was
       communicated to them [sic]; however, specific evidence of instances of conduct
       can only be introduced as direct evidence if it falls under Rule 404(b). . . .
       Evidence purporting to show Kyle Anderson’s propensity to violence shall be
       presented only in the form of reputation or opinion evidence. . . . Again, there will
       be a necessary requirement of foundation to allow for the introduction of opinion
       testimony as to reputation or opinion.
(Italics added). After the court’s comments, trial proceeded to opening statements. The following
morning, the court filed a written order granting the State’s motion in limine. The written order
does not contain the complained-of language.



                                                22
           a. Standard of Review
         Like the previous issue, Godwin challenges an interpretation of Rule 404, rather than a
determination of whether specific evidence is inadmissible under the rule. Accordingly, we
evaluate the district court’s interpretation under a de novo standard of review. Hill, 161 Idaho at
447, 387 P.3d at 115.
           b. Analysis
       Godwin’s argument hangs on a single statement in a long soliloquy that otherwise
focused on a separate evidentiary issue. Godwin zeros in on the district court’s oral statement
because the court’s written order appears to have remedied any possible confusion that the
statement could have created. Though the oral statement and written order were made known
almost two full days in advance of the defense’s presentation of evidence, nothing in the
record—no question, clarification, nor proffer of evidence—suggests that the court’s oral
statement misled the parties or affected the presentation of evidence. On this record, the district
court’s error, if any, when it made an overbroad statement of law, was negligible because the
court’s written ruling supplanted and corrected the statement.
       Godwin is correct that the court’s initial statement articulated only part of the applicable
law. As already mentioned, “a defendant can offer reputation or opinion evidence about the
victim’s character trait for violence to show the victim was the initial aggressor or that the force
used against the victim was necessary for self-protection.” Marr, 163 Idaho at 37, 408 P.3d at 35
(citing I.R.E 405(a) and Hernandez, 133 Idaho at 584, 990 P.2d at 750). However, different
foundational requirements apply depending on what purpose the evidence is used for. See
Hernandez at 579–80, 990 P.2d at 745–46. If the victim’s character trait for violence is being
used to support specific elements of self-defense or defense of others (such as whether the
defendant reasonably feared the victim and reasonably believed that the force used was
necessary to repel the victim’s attack), then the defendant must first show an awareness of that
reputation. See id. (quoting Keiser, 57 P.3d at 854); see also Dallas, 109 Idaho at 679, 710 P.2d
at 589. Without such foundation, the information is irrelevant to the defendant’s state of mind
during the altercation.
       However, if a defendant wishes to show that the victim was the initial aggressor, then
there is no need to show that he was aware of the victim’s reputation for violence in order to



                                                23
present character evidence under Rule 404(a)(2). Hernandez, 133 Idaho at 584, 990 P.2d at 750
(quoting Keiser, 57 P.3d at 854). As aptly recognized by the Court of Appeals:
       The fact that section 404(a)(2) is an exception to the rule against introducing
       character evidence to imply that a person acted in conformity with that character
       on a particular occasion suggests that the very purpose of victim character
       evidence is to suggest to the jury that the victim did indeed act in conformity with
       his violent character at the time of the alleged crime against him. The purpose is
       not to provide insight into the reasonableness of the thought processes of the
       defendant. Thus, whether the defendant knew of the victim’s character at the time
       of the crime has no bearing on whether victim character evidence should come in
       under section 404(a)(2).
Hernandez, 133 Idaho at 584, 990 P.2d at 750 (quoting Keiser, 57 P.3d at 854) (citations
omitted). Given this consideration, the district court’s oral statement did not specifically account
for all the possible uses of character evidence.
       Despite this, the district court corrected any possible error arising from its oral statement
in its written order. The proscriptive portion of the court’s written order states the rule regarding
reputation or opinion evidence without the foundational requirement of awareness:
       Therefore, any statements or references to specific incidents in which Kyle
       Anderson pointed a gun at any witness shall be prohibited during voir dire,
       opening statements, the trial, and closing arguments. Evidence purporting to show
       Kyle Anderson’s propensity to violence shall be presented only in the form of
       reputation or opinion evidence. In the event that such reputation or opinion
       evidence is introduced, inquiry into relevant specific incidents of conduct will be
       allowed on cross-examination. I.R.E. 405(a).
       Nothing in the record suggests that the Court’s oral statement survived the written order.
Tellingly, if the court’s oral statement actually excluded evidence in this case, then Rule 103(a)
of the Idaho Rules of Evidence would have required counsel to bring the purportedly excluded
evidence to the attention of the court in order to preserve the error:
       Error may not be predicated upon a ruling which admits or excludes evidence
       unless a substantial right of the party is affected, and . . . [i]n case the ruling is one
       excluding evidence, the substance of the evidence was made known to the court
       by offer or was apparent from the context within which questions were asked.
But Godwin fails to point to any instance where the district court refused to admit reputation or
opinion evidence of Anderson’s violent or aggressive character for lack of proper foundation.
The defense made no mention of possible reputation or opinion evidence, let alone which
purpose such evidence would be used to show. We have previously held that a trial court’s
misstatement of the law on an evidentiary issue does not relieve the complaining party of his

                                                   24
obligation to make an offer of proof. See Read v. Harvey, 147 Idaho 364, 368, 209 P.3d 661, 665
(2009) (holding that “[t]he district court’s initial confusion regarding the law of the case doctrine
is not a basis for reversal” when the trial court made a legally erroneous statement at the outset of
trial but the complaining party failed to make an offer of proof); State v. Schoonover, 125 Idaho
953, 954, 877 P.2d 924, 925 (Ct. App. 1994) (noting that Rule 103(a)(2) reflects “the long-
standing policy that in order to preserve an evidentiary ruling for appellate review, the party
assigning error to the ruling must make a sufficient record from which an appellate court can
adequately determine whether there was error, and also whether the rights of such party have
been prejudiced.”).
        Here, there is not an adequate record to determine whether there was error. Godwin never
brought the “substance of the evidence” to the attention of the trial court. While Godwin
definitively made an offer of proof for the specific-act evidence he wished to admit during his
argument on the State’s motion, he never made an offer of proof for the allegedly affected
opinion or reputation evidence. In addition, the substance of the opinion or reputation evidence is
not “apparent from the context” in this case. I.R.E. 103(a)(2) (1985) (amended 2018). The
statement arose in the context of specific-act evidence. The State’s motion sought to prohibit
specific-act evidence. Godwin specifically opposed the State’s motion in limine by asking the
court to overrule Custodio and allow the specific-act evidence. Only the court’s oral statement
strayed outside the scope of specific-act evidence and was corrected the following morning by
the court’s written order.
        If the court’s oral statement was as pivotal as Godwin contends, then the record would
bear some marks of its importance. But after an examination of the record, Godwin’s argument
rests only upon speculation; speculation about theoretical evidence that could have been used for
a permissible purpose but was supposedly excluded by a solitary statement that conflicted with a
later written recitation. 4 On these facts, no error can be assigned to the district court’s oral
statement.




4
 At oral argument, Godwin suggested that defense counsel relied on the Court’s oral ruling and was unaware of the
correction, since it was not mentioned again by the judge in open court. However, whenever the court makes a
written ruling on an issue, it is reasonable for the court to assume the attorneys read it.

                                                       25
   4. The district court did not commit fundamental error by failing to instruct the jury
      on justifiable homicide under Idaho Code section 18-4009(1) because Godwin
      invited any error by requesting both instructions.
       Godwin argues that the district court committed fundamental error by failing to instruct
the jury on justifiable homicide under section 18-4009(1) because that section does not require
his response to be reasonable under section 18-4010. Godwin contends that he was resisting an
“actual, ongoing attack” under section 18-4009(1) based on Godwin’s testimony about his
version of the events. The State responds by first asking this Court to reinstate the “rule that
claims of instructional error not raised before the district court are waived for purposes of
appeal.” Alternatively, the State argues that Godwin invited the error and affirmatively waived
any objections by declining to bring the issue before the court at the various jury instruction
conferences. Lastly, the State contends that Godwin cannot show fundamental error because the
evidence could only show that the killing of Anderson was done in response to an aggravated
assault by threat which would fall under subsection 18-4009(3) of the Idaho Code.
           a. Standard of Review
       “Whether the trial court properly instructed the jury presents a question of law over
which this Court exercises free review.” State v. Hall, 161 Idaho 413, 423, 387 P.3d 81, 91
(2016) (citing State v. Poe, 139 Idaho 885, 905, 88 P.3d 704, 724 (2004)).
           b. Analysis
       During Godwin’s trial, Idaho’s justifiable-homicide statute read in relevant part:
       Homicide is also justifiable when committed by any person in either of the
       following cases:
               1. When resisting any attempt to murder any person, or to commit a
               felony, or to do some great bodily injury upon any person; or,
                                                    ...
               3. When committed in the lawful defense of such person, or of a wife or
               husband, parent, child, master, mistress or servant of such person, when
               there is reasonable ground to apprehend a design to commit a felony or to
               do some great bodily injury, and imminent danger of such design being
               accomplished; but such person, or the person in whose behalf the defense
               was made, if he was the assailant or engaged in mortal combat, must really
               and in good faith have endeavored to decline any further struggle before
               the homicide was committed; or, . . .
I. C. § 18-4009 (1972) (amended 2018).



                                               26
       This section, at the time of Godwin’s trial, was modified by section 18-4010 (which has
since been repealed):
       A bare fear of the commission of any of the offenses mentioned in subdivisions 2
       and 3 of the preceding section, to prevent which homicide may be lawfully
       committed, is not sufficient to justify it. But the circumstances must be sufficient
       to excite the fears of a reasonable person, and the party killing must have acted
       under the influence of such fears alone.
I. C. § 18-4010 (1973) (repealed 2018).
       Rule 30(b) of the Idaho Criminal Rules contains language stating that unobjected-to error
based on jury instructions is not preserved for appeal. I.C.R. 30(b)(4) (“No party may assign as
error the giving of or failure to give an instruction unless the party objects thereto before the jury
retires to consider its verdict, stating distinctly the instruction to which the party objects and the
grounds of the objection.”) (amended 2017). The State urges this Court to “reinstate the rule that
claims of instructional error not raised before the district court are waived for purposes of
appeal.” The State asserts this Court “retreated” from this rule in State v. Smith because the
language prohibiting assignment of error had been removed from the rule. 117 Idaho 225, 228,
786 P.2d 1127, 1131 (1990). But, since the language has been reinserted since Smith, the State
urges this Court to adopt it once again.
       We need not “reinstate” the rule because we have already required an objection under this
rule in Hall, 161 Idaho at 422, 387 P.3d at 90. In Hall, this Court held that submitting jury
instructions along with a supporting memorandum, by itself, was not enough to preserve an error
under Rule 30(b):
       Merely submitting a proposed instruction that included the defense of justifiable
       homicide as set forth in Idaho Code section 18-4009(1) and a memorandum
       explaining why the defense thought the instruction should be given was not
       sufficient under Rule 30(b) to preserve any instructional error on that issue. Rule
       30(b) required that defense counsel object to the failure to give the instruction
       during the jury instruction conference and state distinctly the grounds of the
       objection.
Id. Therefore, Godwin failed to comply with Idaho Criminal Rule 30(b) and any alleged error is
not properly preserved for appeal. Because “the alleged error was not followed by a
contemporaneous objection . . . it shall only be reviewed by an appellate court under Idaho’s
fundamental error doctrine.” Id. at 413, 422, 387 P.3d at 90. Godwin agrees that the alleged error
should be addressed under the fundamental error standard.


                                                 27
           Unlike Hall, where the district court refused to give the requested instruction, Godwin
concedes that section 18-4009(1) appeared in Jury Instruction No. 20, which reads as follows:
                                                INSTRUCTION NO. 20
                   The defendant contends as a defense in this case that the killing was
           justifiable because the defendant was acting in self-defense.
                   Under the law, homicide is justifiable if committed while resisting an
           attempt to murder any person, or to commit a felony, or to do some great bodily
           injury upon any person.
                 The burden is on the prosecution to prove beyond a reasonable doubt that
           the homicide was not justifiable. If there is a reasonable doubt whether the
           homicide was justifiable, you must find the defendant not guilty.
Godwin argues that by placing this instruction next to Jury Instruction No. 21, which spelled out
the requirements for finding self-defense under subsection 18-4009(3), the instructions confused
the jury. Godwin asserts that Jury Instruction No. 20’s failure to explicitly state the caveat
contained in section 18-4010 “failed to instruct the jury that subsection (1) was an entirely
separate scenario of justifiable homicide, distinct from self-defense” and therefore “erroneously
informed the jury that Subsection (1) was part of the legal definition of self-defense.”
           Even assuming this argument has merit, Godwin invited the error by requesting both
instructions. 5 “It has long been the law in Idaho that one may not successfully complain of errors
one has acquiesced in or invited. Errors consented to, acquiesced in, or invited are not
reversible.” State v. Dunlap, 155 Idaho 345, 379, 313 P.3d 1, 35 (2013) (citing State v. Owsley,
105 Idaho 836, 838, 673 P.2d 436, 438 (1983)) (internal citations omitted). A defendant “may
not consciously invite district court actions, and then successfully claim these actions are
erroneous on appeal. Nor may a criminal defendant successfully allege error in a ruling of the
court, when the defendant himself requested the ruling.” Owsley, 105 Idaho at 837, 673 P.2d at
437 (1983) (citations omitted).
           Godwin requested Jury Instructions No. 20 and No. 21 by motion prior to trial. Before the
jury-instruction conference, Godwin’s requested instructions were incorporated by the Court in
its proposed instructions and earmarked with a parenthetical indicating the party who requested
the instruction. What would become Jury Instruction No. 20 was designated as a defense
instruction. At a jury instruction conference before the defense presented his case, the following


5
    It is worth noting that Godwin has not argued that the instructions were offered in the alternative.

                                                             28
exchange occurred regarding Jury Instruction No. 20 (which was then referred to as Jury
Instruction No. 21):
               THE COURT: . . . Instruction 21, self-defense. Just for the purpose of
               argument, Mr. MacGregor, let’s assume that there is satisfactory evidence
               in this matter to assert the grounds of self-defense. My inquiry to you,
               when I come to you, will be based upon -- you may have objection
               whether or not this be offered at this point in time, but to the extent that
               there would be an instruction to self-defense, do you have, Mr. Monson,
               any objection to 21 which is your requested instruction?
               MR. MONSON: No, Your Honor.
               THE COURT: Mr. MacGregor?
               MR. MACGREGOR: No, Your Honor. Based on how the Court just
               recited that situation, we would have no objection.
               THE COURT: Instruction No. 22, the same terms will apply if the Court
               was still going to give the same, do you have any objection to the
               instruction, Mr. Monson? It’s your requested instruction.
               MR. MONSON: No, Your Honor.
               THE COURT: Mr. MacGregor?
               MR. MACGREGOR: No, Your Honor.
       This dialogue confirms that Godwin requested the jury instructions and demonstrates
both the opportunity and failure to object. Accordingly, Godwin invited any possible error
arising from reading the two jury instructions side by side.
   5. The State committed prosecutorial misconduct during closing argument by
      impermissibly vouching for witnesses and evidence but the misconduct does not rise
      to the level of fundamental error.
       Godwin asserts that the State committed prosecutorial misconduct by impermissibly
vouching for the credibility of witnesses by telling the jury that he personally believed in the
State’s case and that the State’s witnesses were credible. This alleged misconduct, Godwin
asserts, amounted to fundamental error by violating Godwin’s right to due process and his right
to a jury trial under both the Idaho and U.S. Constitutions. The State responds by stating that
Godwin is unable to meet the standard of fundamental error. First, the State argues that Godwin
cannot show error because the prosecutor’s statements do not constitute misconduct because
nothing in the prosecution’s closing arguments hinted that there was evidence known to the
prosecutor which was not known by the jury. Furthermore, the State contends, the prosecution
made clear that credibility determinations were to be made by the jury.


                                                29
            a. Standard of Review
        At trial, Godwin did not object to any of the prosecutor’s comments that form the basis of
this claim of prosecutorial misconduct. As result, his claim is examined under a fundamental-
error analysis. “Where prosecutorial misconduct was not objected to at trial, Idaho appellate
courts may only order a reversal when the defendant demonstrates that the violation in question
qualifies as fundamental error . . . .” State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979
(2010). “Fundamental error is error that: ‘(1) violates one or more of the defendant’s unwaived
constitutional rights; (2) plainly exists (without the need for any additional information not
contained in the appellate record, including information as to whether the failure to object was a
tactical decision); and (3) was not harmless.’” State v. Lankford, 162 Idaho 477, 494, 399 P.3d
804, 821 (2017) (citing Perry, 150 Idaho at 228, 245 P.3d at 980).
            b. Analysis
        Generally, “[w]here a prosecutor attempts to secure a verdict on any factor other than the
law as set forth in the jury instructions and the evidence admitted during trial, including
reasonable inferences that may be drawn from that evidence, this impacts a defendant’s
Fourteenth Amendment right to a fair trial.” Perry, 150 Idaho at 227, 245 P.3d at 979. It is the
prosecutor’s duty to “see that a defendant has a fair trial, and that nothing but competent
evidence is submitted to the jury,” so prosecutors “should not exert their skill and ingenuity to
see how far they can trespass upon the verge of error, because generally in so doing they
transgress upon the rights of the accused.” Lankford, 162 Idaho at 494, 399 P.3d at 821 (quoting
State v. Christiansen, 144 Idaho 463, 469, 163 P.3d 1175, 1181 (2007)). Yet, “in reviewing
allegations of prosecutorial misconduct the Court must keep in mind the realities of trial.” Id.
(quoting State v. Ellington, 151 Idaho 53, 62, 253 P.3d 727, 736 (2011)). “A fair trial is not
necessarily a perfect trial.” Id.
        In closing arguments, both parties are generally “given wide latitude in making their
arguments to the jury and discussing the evidence and inferences to be made therefrom.” State v.
Severson, 147 Idaho 694, 720, 215 P.3d 414, 440 (2009). “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) (citing
Severson, 147 Idaho at 720, 215 P.3d at 440 (2009)). “The relevant question is whether the
prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a

                                                30
denial of due process.’” Id. (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)).
“Prosecutorial misconduct during closing arguments will constitute fundamental error only if the
comments were so egregious or inflammatory that any consequent prejudice could not have been
remedied by a ruling from the trial court informing the jury that the comments should be
disregarded.” State v. Parker, 157 Idaho 132, 146, 334 P.3d 806, 820 (2014).
       The first inquiry is to determine whether the comments rise to the level of prosecutorial
misconduct. At the outset, Godwin admits that “the prosecution noted several times that
credibility determinations had to be made by the jury,” but nevertheless contends that “the
prosecution clearly intended to interject personal opinions in an attempt to improperly influence
the jury’s credibility determinations . . . .” Godwin asserts that five statements made by the
prosecutor in his closing argument amounted to prosecutorial misconduct. The precise statements
Godwin alleges amounted to prosecutorial misconduct are presented in italicized font and
provided in context.
       Now, Amanda Jones is not the most sophisticated witness, but I would submit to
       you, I don’t think she came off as a schemer, a planner. She was not sophisticated,
       but I would submit to you and you judge her testimony. [1] I would submit to you
       that she was telling the truth, and that’s something you have to decide, not me.
       And what Mr. Monson and I tell you is not evidence, but the evidence proves that
       Mr. Godwin is guilty of second degree murder.
       Beau Lynch. . . . What motive does he have to lie? Judge his testimony. He was
       scared. He was scared to sit up there and tell the truth about his former boss, a
       friend. And [2] I think he was scared, and I think he was nervous, but even with
       all that, even with all that he still told the truth. And these credibility questions
       are what you have to answer.
       . . . And Amanda Jones, she’s not a sophisticated witness, but [3] I believe she
       was a credible witness. Testimony from her was Mr. Godwin, after he shoots and
       kills Mr. Anderson, runs up to her. She’s on her knees, and he’s got the gun
       pointed at her head. Why would she make that up? What incentive does she have
       to say that? The shooting is over. Her boyfriend is dead. I mean, when you talk
       about credibility, what reason does she have to lie about that? I mean, it doesn’t
       help – it doesn’t help the shooting incident. It’s something that happened to her
       and she’s telling you, but what I’m saying is if someone – if you believe that,
       [4] which I think was credible, it is totally inconsistent with self-defense, and
       these are factors for you to consider.
       If you look at everything that was done after this incident, it is not consistent with
       a person who is claiming self-defense, not at all. And you can also consider what
       the State’s evidence was when you consider whether this was self-defense. They
       all said Kyle Anderson is standing there without any gun in his hand, and Jason
       Godwin shoots him. And I would submit he has a reason to lie. We know he has

                                                31
       lied before. He is not credible. He admitted to many lies. And [5] I would submit
       that the evidence that the witnesses that the State put on are credible, and, again,
       ladies and gentlemen, the State would ask you to find Mr. Godwin guilty of
       second degree murder.
       Vouching by the prosecution may rise to the level of prosecutorial misconduct because it
can “plac[e] the prestige of the government behind a witness through personal assurances of the
witness’s veracity, or suggest[] that information not presented to the jury supports the witness’s
testimony.” Lankford, 162 Idaho at 497, 399 P.3d at 824 (quoting United States v. Necoechea,
986 F.2d 1273, 1276 (9th Cir. 1993)). Importantly, however, “prosecutors may argue reasonable
inferences based on the evidence, including that one of the two sides is lying. Furthermore,
prosecutors are permitted to respond to defense counsel’s attempts to impeach the credibility of
government witnesses.” Id. (citing United States v. Wilkes, 662 F.3d 524, 540 (9th Cir. 2011))
(internal quotation marks omitted). In other words, the defense can open the door to the subject
of veracity of the State’s witnesses, but, having opened the door, the defense “should not be
surprised to see the prosecutor enter.” Lankford, 162 Idaho at 498, 399 P.3d at 825 (quoting
United States v. Dorsey, 677 F.3d 944, 954 (2012)). Lastly, “vouching statements, although
constituting prosecutorial misconduct, do not constitute a clear constitutional violation.” Id.
(citing Dunlap, 155 Idaho at 370, 313 P.3d at 26).
       Focusing on the challenged statements, the first and fifth statements will be addressed
together because they both contain the phrase, “I would submit.” The verb “submit” means “[t]o
end the presentation of further evidence in (a case) and tender a legal position for decision.”
Black’s Law Dictionary 1653 (10th ed. 2014). A “submission” is “an argument by counsel in
court.” Bryan A. Garner, Garner’s Dictionary of Modern Legal Usage 855 (3rd ed. 2011). In
effect, by prefacing his statements with “I would submit,” the prosecutor was leaving the issue
up to the jury, but believed the evidence supported it. While such a phrase will not save
otherwise egregious misconduct, the circumstances here mitigate against finding these comments
rise to the level of prosecutorial misconduct. The first statement, “I would submit to you that she
was telling the truth,” was immediately followed by, “and that’s something you have to decide,
not me.” The fifth statement occurred in the prosecution’s rebuttal, after defense counsel
weighed in on the credibility of the State’s witness thereby “opening the door” to comments on
witnesses’ testimony. Likewise, the attacked language followed a reference to the evidence
presented. (“And you can also consider what the State’s evidence was when you consider


                                                32
whether this was self-defense.”). While it would be better for the prosecutor to say “the evidence
showed” or “you, the jury, will determine” rather than the filler phrase “I would submit,” these
comments, given their context, do not rise to the level of prosecutorial misconduct.
        However, the second, third, and fourth statements in which the prosecutor personally
vouched for the reliability of the testimony were improper comments constituting prosecutorial
misconduct. It is “improper for a prosecutor to express his personal belief or opinion as to the
truth or falsity of any testimony or evidence.” State v. Alwin, 164 Idaho 160, 172, 426 P.3d 1260,
1272 (2018) (quoting State v. Garcia, 100 Idaho 108, 110, 594 P.2d 146, 148 (1979). “Such
personal statements constitute misconduct because they are a ‘form of unsworn, unchecked
testimony’ that can ‘exploit the influence of the government.’” Id. (quoting Garcia, 100 Idaho at
110, 594 P.2d at 148). Despite the prosecution’s admonitions that the credibility determinations
are for the jury, the prosecutor introduced “unsworn, unchecked testimony” by stating personal
beliefs as to the credibility of testimony or evidence without directly tying it to the evidence.
        However, simply because a statement may rise to the level of prosecutorial misconduct
does not mean it rises to the level of fundamental error. The possible harm “may be remedied by
an instruction from the district court informing the jury that the attorneys’ comments are not
evidence.” Id. at 169, 426 P.3d at 1269. Here, both the district court and the prosecutor during
argument on rebuttal admonished the jury that the lawyers’ closing arguments were not evidence.
The district court stated:
        You are to decide the facts from all of the evidence presented in this case. The
        evidence that you are to consider – excuse me, the evidence you are to consider
        consists of sworn testimony of witnesses, exhibits which have been admitted into
        evidence, and any facts to which the parties have stipulated. Certain things you
        have heard or seen are not evidence, including arguments and statements by
        lawyers. The lawyers are not witnesses. What they say in their opening
        statements, closing arguments, and at other times is included to help you interpret
        the evidence but is not evidence. If the facts as you remember them differ from
        the way the lawyers have stated them, follow your memory . . . . In a few minutes
        counsel will present their closing remarks to you, and then you will retire to the
        jury room for your deliberations. Arguments and statements of attorneys are not
        evidence. If you remember the facts differently from the way the attorney[s] have
        stated them, you should base your decision on what you remember.
Likewise, the prosecutor said:
         [Defense counsel] mentioned the State is telling you what to do. I don’t think I’ve
        told anyone what to do. I think that’s been Judge Fitzmaurice [sic] that has told
        you what to do in the courtroom here. Ladies and gentlemen, this case is

                                                 33
       overwhelming on the State’s side. Mr. Monson, what he says and what I say is not
       evidence. What we say is not evidence. I would submit to you I don’t have to say
       a thing. The State’s case that we presented proves itself. Just if you block out
       what Mr. Monson says and what I say, just consider the evidence and the
       testimony itself by yourself, not how we analyze it but how you do, and the case
       proves itself without a doubt at all, overwhelming.
Taking both the court’s and the prosecutor’s admonitions into consideration, we can determine
that the prosecutor’s comments, while inappropriate, were “not egregious or so inflammatory
that the jury instruction would not remedy any consequential prejudice” Id. at 173, 426 P.3d at
1273. As a result, these comments do not rise to the level of fundamental error. Id.
   6. The cumulative error doctrine is inapplicable to this case.
       Because we find error in only three statements by the prosecution, Godwin’s argument
under the cumulative-error doctrine is inapplicable. As stated in Perry, “it is well-established that
alleged errors at trial, that are not followed by a contemporaneous objection, will not be
considered under the cumulative error doctrine unless said errors were found to pass the
threshold analysis under our fundamental error doctrine.” 150 Idaho at 230, 245 P.3d 982.
Because Godwin failed to present more than one error that passed the threshold analysis under
the fundamental error doctrine, his argument under the cumulative error doctrine fails. Id. (citing
State v. Hawkins, 131 Idaho 386, 407, 958 P.2d 22, 23 (Ct. App. 1998)).
                                       V.    CONCLUSION
       For the reasons stated above, the district court did not err in denying Godwin’s motion to
suppress and Godwin has failed to showed fundamental error entitling him to relief on appeal.
The judgment of the district court is affirmed.
       Justices BRODY, BEVAN, STEGNER and MOELLER, CONCUR.




                                                  34
