               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38910

STATE OF IDAHO,                                 )     2013 Unpublished Opinion No. 789
                                                )
       Plaintiff-Respondent,                    )     Filed: December 12, 2013
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
IRWIN RYAN RAY ADAMS,                           )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Jerome County. Hon. John K. Butler, District Judge.

       Judgment of conviction for felony vehicular manslaughter with gross
       negligence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Erik R. Lehtinen, Chief,
       Appellate Unit, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Irwin Ryan Ray Adams appeals from his judgment of conviction after a jury found
Adams guilty of felony vehicular manslaughter with gross negligence, in violation of Idaho Code
§ 18-4006(3)(a). For the reasons that follow, we affirm.
                                               I.
                                 FACTS AND PROCEDURE
       Adams was driving with a passenger, his friend, when Adams crashed his car. The car
crash resulted in severe injury to the friend, and the friend eventually died as a result of his
injuries. Although Adams contended his car was being chased at the time of the crash, others
asserted that Adams was chasing a car driven by Adams’ girlfriend’s mother’s friend (the chased
driver) and carrying Adams’ girlfriend, the girlfriend’s baby, and the girlfriend’s mother. The
State subsequently charged Adams via an information with vehicular manslaughter with gross
negligence “by driving his motor vehicle at a high rate of speed, to-wit: 108 miles per hour in a

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50 miles per hour zone trying to chase down another vehicle and crashing his motor vehicle
which caused the death of the victim: [the friend].”
       At trial, the prosecutor called seventeen witnesses. 1 One saw the crash occur. Another
was the first person to stop at the crash scene. Two law enforcement officers from Jerome
County testified along with three law enforcement officers from the Idaho State Police, including
an accident reconstruction expert witness. The chased driver and the girlfriend’s mother testified
they were being chased by Adams. The victim’s sister and four other individuals who talked to
Adams while Adams was hospitalized also testified. Two other witnesses testified they were
involved in a road-rage-type incident with Adams the day before. The defense called Adams’
father, Adams’ father’s fiancée, Adams’ brother, and Adams’ sister. The defense also called two
State witnesses, an Idaho State Police officer who talked to Adams, and the sister of the victim.
In addition, Adams himself testified.
       During the trial, the prosecutor offered several exhibits. Exhibit 131 was an audio
recording of an interview between an Idaho State Police patrol sergeant and Adams while Adams
was hospitalized. Exhibit 134 was a video recording from a Jerome County detective’s car data
recording system as the detective arrived on the scene. The video exhibit not only included
video, but had accompanying audio of Adams claiming he had been chased. Both exhibits were
admitted without objection and published to the jury.
       In the closing arguments, defense counsel asked the jury to replay the video exhibit in the
jury room, arguing the video would support the defense’s theory of the case. Defense counsel
also referenced the audio exhibit during the closing argument, again arguing the audio exhibit
would support the defense’s theory of the case. The prosecutor, in rebuttal, also referred to the
video exhibit. However, after the closing arguments concluded, the district court advised the
jury that it could not replay the exhibits during deliberations because the jury room did not have
technological capability. After the court excused the jury to the jury room, defense counsel
placed an objection on the record as to the jury’s inability to replay the audio and video exhibits
in the jury room. Thereafter, the case was deliberated by the jury for over seven hours before the
jury found Adams guilty of vehicular manslaughter with gross negligence. The court then




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       One of the seventeen witnesses provided little information relevant to this case.

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sentenced Adams to a unified term of ten years, with three years determinate, imposed a fine of
$5,000 and court costs, and later imposed restitution. Adams appeals.
                                                 II.
                                           ANALYSIS
       Adams argues the district court erred by not making the audio and video exhibits
available to the jury during jury deliberations. Adams contends this error was prejudicial and
asks this Court to vacate his conviction and remand the case for a new trial.
       The Idaho Supreme Court has set forth the requirements for a defendant challenging
objected-to, non-constitutionally-based error:
       In order to avoid confusion and promote equal application of the law, Idaho shall
       from this point forward employ the Chapman [v. California, 386 U.S. 18 (1967),]
       harmless error test to all objected-to error. A defendant appealing from an
       objected-to, non-constitutionally-based error shall have the duty to establish that
       such an error occurred, at which point the State shall have the burden of
       demonstrating that the error is harmless beyond a reasonable doubt.
State v. Perry, 150 Idaho 209, 222, 245 P.3d 961, 974 (2010).
       Adams contends the failure to make the audio and video exhibits available to the jury
during deliberations was an error under Idaho Code § 19-2203. 2 Assuming without deciding that
the district court erred by failing to make the audio and video exhibits available to the jury
during deliberations, we must determine whether the State proved the error is harmless beyond a
reasonable doubt. Perry, 150 Idaho at 222, 245 P.3d at 974. This error, according to Adams,
was prejudicial, and not harmless beyond a reasonable doubt, for three reasons: (1) the district
court deemphasized the evidence favorable to Adams; (2) the evidence was important to the
believability of Adams’ statements after the crash, specifically concerning Adams’ emotional
condition and his version of events; and (3) the timing of the alleged error exacerbated the


2
       Idaho Code § 19-2203 provides:

               Papers which may be taken by jury. Upon retiring for deliberation, the
       jury may take with them all exhibits and all papers (except depositions) which
       have been received in evidence in the cause, or copies of such public records or
       private documents given in evidence as ought not, in the opinion of the court, to
       be taken from the person having them in possession. They may also take with
       them the written instructions given and notes of the testimony or other
       proceedings on the trial, taken by themselves or any of them, but none taken by
       any other person.

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prejudice. The State contends that even if an error occurred, the error is harmless beyond a
reasonable doubt because: (1) the audio and video exhibits were published to the jury during the
State’s case; (2) the jury had ample evidence of Adams’ emotional condition when he made his
statements after the crash; and (3) the evidence of Adams’ guilt was overwhelming.
       Adams’ first argument, that the district court deemphasized the evidence favorable to
him, is unfounded. The judge did not instruct the jury to place greater weight or emphasis on the
evidence, nor did the judge opine on the defendant’s guilt or innocence. State v. Johnson, 138
Idaho 103, 106, 57 P.3d 814, 817 (Ct. App. 2002) (“A judge’s remark will be deemed prejudicial
if it constitutes a comment on the weight of the evidence or indicates an opinion of the court as
to the defendant’s guilt or innocence.”). Rather, the judge informed the jury that the jury room
lacked the technological capability to play the audio and video exhibits:
               Thank you. All right, ladies and gentlemen of the jury, that does conclude
       the closing arguments in this matter.
               One thing I do want to clarify is that both counsel have said that you can
       listen to the audios, that is not the case. The audios are in evidence. You must
       remember what it was you heard, what you saw. Your deliberations must occur
       within the jury room and the jury room does not have the capability of playing
       those things.
       As to Adams’ second argument, that the evidence was important to the believability of
Adams’ statements after the crash, we are persuaded that there was ample evidence available to
the jury to consider the statements originally offered by Adams and the believability of those
statements. Adams testified at trial and the State also presented testimony from witnesses who
described Adams’ emotional condition after the crash and testified to what Adams told them
after the crash. During the trial, an Idaho State Police corporal testified that upon arriving at the
scene of the crash, Adams was visibly upset: “It appeared that he was possibly crying, but his
demeanor was that he was very upset at the time.” Moreover, according to the corporal, Adams
told the corporal that he was traveling close to 75 mph, responded to a few questions with “I
don’t know,” and told the corporal that he was being chased. A Jerome County deputy also
reported to the scene and asked Adams if he was driving the car; Adams responded he did not
know. After the deputy overheard a phone call between Adams and someone else, in which the
deputy asserted he heard Adams admit to driving and doing about 80 mph, the deputy
re-questioned Adams:
       I asked him again, “Were you driving? I just heard you say you were driving.”


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               He says, “My friend’s hurt. I don’t know,” and “We were being chased.”
               And then he became even more frantic. He started crying hysterically, put
       his hands on top of his head squeezing his head and just sat down. At that point I
       just stopped the questioning . . . .

Another witness testified she was the first person to stop at the crash and, after checking on the
friend in the car, she went to Adams and asked Adams who he was. According to the witness,
Adams could not remember his name and told her he was being chased. Moreover, the witness
testified Adams was upset, crying, and distraught and testified that Adams could not remember
his friend’s name. Thus, there were at least three witnesses who testified for the State, subject to
cross-examination, to various statements made by Adams and to the emotional condition of
Adams.
       As to Adams’ third argument, we are not persuaded that the timing of the district court’s
announcement exacerbated any resulting prejudice from the jury not reviewing the exhibits
because, in the closing arguments, Adams’ defense counsel extensively recounted the content of
the video exhibit and reminded the jury of what was heard in the audio exhibit. Thus, for their
deliberations, the jurors were able to consider the exhibits relying on their memory and on the
notes taken from both the published exhibits and the specific emphasis given by defense counsel
at closing argument.
       As the State argues, another important factor to consider is the overwhelming evidence of
Adams’ guilt. For instance, at trial, the State offered an expert witness, an Idaho State Police
master corporal and accident reconstruction expert, who testified she concluded the “minimum
speed . . . was 108.02 miles per hour.” The victim’s sister testified she talked to Adams when
Adams was hospitalized while her brother was still alive, and testified Adams initially told her he
was going around 65 or 70 mph, but after she questioned him more, “he told me that he was
probably going around a hundred.” A high school acquaintance of Adams testified that, while
Adams was hospitalized, she overheard Adams say that “he didn’t realize how fast that he was
going until he looked down and saw that he was going 110.” The acquaintance also testified
Adams had “switched his story around” concerning who was chasing who. Other witnesses also
recounted that Adams told them he had been going 110 mph and had been chasing his girlfriend.
Thus, there was ample evidence of Adams changing his story and of Adams indicating that he
had driven around 110 mph.



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       In sum, we are persuaded that the State has met its Perry and Chapman burden to show
the asserted error is harmless beyond a reasonable doubt. The jury viewed and listened to the
video exhibit during the trial and the jury listened to the audio exhibit during the trial. To be
sure, the jury had the opportunity in the deliberations to recall what happened in the audio and
video exhibits based on the jurors’ memories and notes. Therefore, any error in not making the
audio and video exhibits available to the jury during deliberations is harmless.
                                                III.
                                         CONCLUSION
       We conclude that any error by the district court in not making the audio and video
exhibits available to the jury during deliberations is harmless beyond a reasonable doubt.
Accordingly, Adams’ judgment of conviction is affirmed.
       Judge LANSING and Judge GRATTON CONCUR.




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