                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 45036

STATE OF IDAHO,                                  )
                                                 )    Filed: August 23, 2018
       Plaintiff-Respondent,                     )
                                                 )    Karel A. Lehrman, Clerk
v.                                               )
                                                 )    THIS IS AN UNPUBLISHED
JAMES MICHAEL BEYER,                             )    OPINION AND SHALL NOT
                                                 )    BE CITED AS AUTHORITY
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. George D. Carey, District Judge.

       Judgment of conviction for attempted strangulation, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Maya P. Waldron, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
       ________________________________________________

GUTIERREZ, Judge
       Beyer appeals from his judgment of conviction for attempted strangulation. Beyer argues
that the district court erred in allowing an officer to testify regarding a child witness’s statement
made the day of the incident and that the prosecutor committed misconduct amounting to
fundamental error by telling the jury Beyer lied and by misstating Beyer’s testimony in closing
argument.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Beyer was charged with attempted strangulation.          At trial, the victim and her two
children, M.M. and A.O., testified consistently that Beyer grabbed the victim by the throat, threw
her to the floor, pinned her there, and strangled her. Beyer testified that the victim “body
checked” Beyer, causing him to place his hands on the victim’s arm and collarbone and shove

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her backwards. Beyer then testified the two fell over and he landed on top of the victim. As
rebuttal, the State called the investigating officer to testify regarding statements made on the day
of the incident. Beyer objected to the line of questioning regarding M.M.’s account as told by
the officer.     The district court overruled the objection based on Idaho Rule of
Evidence 801(d)(1)(B), which allows testimony to rebut claims of recent fabrication. At the
conclusion of the trial, Beyer was found guilty of attempted strangulation. Beyer timely appeals.
                                                 II.
                                            ANALYSIS
A.     Officer’s Testimony
       On appeal, Beyer first argues the district court abused its discretion by admitting the
officer’s testimony regarding what M.M. told the officer on the day of the incident because
Beyer did not imply by his testimony that M.M. recently fabricated her account of the
altercation, only that she provided a conflicting account. 1 The State argues the district court
properly admitted the officer’s testimony. Alternatively, the State argues that any error was
harmless.
       The trial court has broad discretion in determining the admissibility of testimonial
evidence. State v. Smith, 117 Idaho 225, 232, 786 P.2d 1127, 1134 (1990). A decision to admit
or deny such evidence will not be disturbed on appeal absent a clear showing of abuse of that
discretion. Id. When a trial court’s discretionary decision is reviewed on appeal, the appellate
court conducts a multi-tiered inquiry to determine whether the lower court correctly perceived
the issue as one of discretion, acted within the boundaries of such discretion and consistently
with any legal standards applicable to the specific choices before it, and reached its decision by
an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
       Hearsay is defined as a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted. I.R.E. 801(c);
State v. Gomez, 126 Idaho 700, 704, 889 P.2d 729, 733 (Ct. App. 1994). Hearsay is inadmissible
unless otherwise provided by an exception in the Idaho Rules of Evidence or other rules of the
Idaho Supreme Court. I.R.E. 802. A statement is not hearsay if the declarant testifies at the trial
or hearing and is subject to cross-examination concerning the statement, and the statement is

1
        Beyer contends that while the objection was specific to M.M.’s account, it included A.O.
to the extent the trial objection included A.O.’s account. The arguments on appeal do as well.
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consistent with declarant’s testimony and is offered to rebut an express or implied charge against
declarant of recent fabrication or improper influence or motive in so testifying.
I.R.E. 801(d)(1)(B)(i).     The State and Beyer agree there was no explicit charge of recent
fabrication or improper influence or motive. Rather, the parties disagree as to whether there was
an implicit charge.
       At trial, following the children’s testimony, the State called the investigating officer to
the stand to testify. The State questioned the officer regarding M.M.’s account of the incident.
Beyer objected, arguing that “[M.M.]’s already testified to what she’s seen. Like every other
case, we have factual discrepancies between witnesses.” The State argued that “[the officer’s
testimony] goes to rebut any claim or [sic] fabrication given the testimony of [Beyer] that they
may be fabricating their story now.” The district court ruled that Beyer’s testimony “could be
construed as an attempt to raise a claim of recent fabrication,” and therefore the officer’s
testimony was admissible for the limited purpose to rebut that claim.
       Though Beyer does not specifically assert which factor of the abuse of discretion
standard the district court erred on, it is clear that he is arguing that the district court did not act
consistently with applicable legal standards. See State v. Kralovec, 161 Idaho 569, 575 n.2, 388
P.3d 583, 589 n.2 (2017). Essentially Beyer argues there was no claim of recent fabrication and
even if there was, it would have been in respect to the children’s version of what happened after
the physical altercation.
       Whether a claim of recent fabrication is implied during trial depends on what the jury
may have been led to believe, not whether defense counsel actually meant to make such an
implication. United States v. Baron, 602 F.2d 1248, 1253 (7th Cir. 1979), cert. denied, 444 U.S.
967 (1979) (concluding the fact that defense counsel may not have intended to imply that a
witness’s story was recently fabricated is “irrelevant if that inference fairly arises from the line of
questioning pursued”).
       M.M. testified in direct examination that she was in the upstairs in her mother’s bedroom
during part of the argument between her mother and Beyer. M.M. left the room to get her
brother’s phone. She then sat on the stairs for a moment before returning upstairs where she saw
Beyer throw her mother to the ground in the hallway and begin to strangle the mother. In
contrast, Beyer testified that M.M. left the room prior to the incident, did not leave to get the



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phone, and was not in the hall at the time of the physical altercation, but rather was out of “eye
shot.”
         Beyer is correct that conflicting stories exist in most cases. However, the question before
us is whether the jury could infer that the defense was implying that the witness’s story was
fabricated. Beyer’s version of events was significantly different from that told by M.M. Based
on the record, the implication of recent fabrication could be inferred from Beyer’s testimony
which placed M.M. out of “eye shot” at the time of the altercation. When making its ruling, the
district court heard argument from each side, correctly perceiving its decision as discretionary. It
determined the correct legal standard and was within the outer bounds of such discretion.
Further, it reached its decision based on reason. Accordingly, the district court did not abuse its
discretion in determining that Beyer’s testimony “could be construed as an attempt to raise a
claim of recent fabrication.”
B.       Harmless Error
         Even assuming that the district court erred in admitting the expert testimony, any error
was harmless in light of the other evidence presented. Error is not reversible unless it is
prejudicial. State v. Stoddard, 105 Idaho 169, 171, 667 P.2d 272, 274 (Ct. App. 1983). With
limited exceptions, even constitutional error is not necessarily prejudicial error. Id. Thus, we
examine whether the alleged error complained of in the present case was harmless. See State v.
Lopez, 141 Idaho 575, 578, 114 P.3d 133, 136 (Ct. App. 2005). Where a defendant meets his or
her initial burden of showing that an objected-to error has occurred, the State has the burden of
demonstrating beyond a reasonable doubt that the violation did not contribute to the jury’s
verdict. State v. Perry, 150 Idaho 209, 222-23, 245 P.3d 961, 979-80 (2010).
         Here, the officer’s disputed testimony provided collaboration of M.M.’s account as well
as inconsistencies in Beyer’s story. However, even without the officer’s disputed testimony, the
State presented substantial evidence that was, alone, sufficient to establish Beyer’s guilt for
attempted strangulation. M.M. testified on direct examination that she saw Beyer throw her
mother to the ground and begin to strangle her. A.O. also testified on direct that he witnessed
Beyer strangle his mother. The victim likewise testified that she was strangled by Beyer. The
undisputed portion of the officer’s testimony supported a conclusion that the victim was
strangled. In light of this substantial other evidence, the admission of the officer’s testimony did



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not substantively contribute to the jury’s verdict, and any error in admitting the testimony was
harmless beyond a reasonable doubt.
C.      Prosecutorial Misconduct
        Beyer next argues the prosecutor committed misconduct amounting to fundamental error
by telling the jury Beyer had lied and by misstating Beyer’s testimony. Beyer takes issue with
statements made during closing argument in which the prosecutor told the jury that Beyer made
up his story after listening to the other witnesses’ testimony.               Beyer further argues this
misconduct was compounded by the prosecutor’s misstatement of Beyer’s testimony regarding
the differences between what Beyer testified to and what he told the officer immediately
following the incident. While our system of criminal justice is adversarial in nature, and the
prosecutor is expected to be diligent and leave no stone unturned, the prosecutor is nevertheless
expected and required to be fair.         State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285
(2007). However, in reviewing allegations of prosecutorial misconduct, we must keep in mind
the realities of trial. Id. A fair trial is not necessarily a perfect trial. Id.
        Beyer made no contemporaneous objection to the prosecutor’s closing argument at trial.
In Perry, the Idaho Supreme Court clarified the fundamental error doctrine as it applies to
allegations of prosecutorial misconduct.         If the alleged misconduct was not followed by a
contemporaneous objection, an appellate court should reverse when the defendant persuades the
court that the alleged error: (1) violates one or more of the defendant’s unwaived constitutional
rights; (2) is clear or obvious without the need for reference to any additional information not
contained in the appellate record; and (3) affected the outcome of the trial proceedings. Id. at
226, 245 P.3d at 978.
        “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). “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 relevant question is whether the prosecutors’ comments ‘so infected the
trial with unfairness as to make the resulting conviction a denial of due process.’” Darden v.



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Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)).
         “The general rule is that ‘both parties are given wide latitude in making their arguments
to the jury and discussing the evidence and inferences to be made therefrom.’” State v. Dunlap,
155 Idaho 345, 368, 313 P.3d 1, 24 (2013) (quoting State v. Severson, 147 Idaho 694, 720, 215
P.3d 414, 440 (2009)). Accordingly, in closing argument “both sides ‘are entitled to discuss
fully, from their respective standpoints, the evidence and the inferences’ that should be drawn
from it.” Id. at 369, 313 P.3d at 25 (quoting State v. Sheahan, 139 Idaho 267, 280, 77 P.3d 956,
969 (2003)). “[I]n a closing argument, the parties are entitled to explain how, from their own
perspectives, ‘the evidence confirms or calls into doubt the credibility of particular witnesses.’”
Id.     “However, the prosecutor may not ‘express a personal belief as to the credibility of
witnesses, unless the comment is based solely on inferences from evidence presented at trial.’”
Id.
         In the context of this case, the prosecutor’s comments were based on inferences from
evidence presented at trial. Dunlap, 155 Idaho at 369, 313 P.3d at 25. The remarks explained
how the evidence illustrated that Beyer gave conflicting stories during the investigation and later
at trial. See Portuondo v. Agard, 529 U.S. 61, 69 (2000) (prosecutor’s comments concerning
defendant’s credibility as a witness was in accord with longstanding rule that when a defendant
takes the stand, his credibility may be impeached and his testimony challenged like that of any
other witness). Because the prosecutor supported his assertions with evidence presented during
the trial in this instance, the statements did not constitute misconduct much less fundamental
error. Dunlap, 155 Idaho at 369, 313 P.3d at 25. Thus, the prosecutor’s comments during
closing argument did not “‘so infect[] the trial with unfairness as to make the resulting
conviction a denial of due process.’” Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at
643).
                                                III.
                                         CONCLUSION
         The record reflects that the jury could have inferred that defense counsel made an implied
charge of recent fabrication regarding M.M.’s testimony. Therefore, the district court did not
abuse its discretion in admitting the officer’s account of M.M.’s retelling of the incident to rebut
the implied charge.     Moreover, any alleged error in admitting the officer’s testimony was

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harmless. The record also reflects that the statements made during the State’s closing argument
did not amount to fundamental error.       Accordingly, Beyer’s judgment of conviction for
attempted strangulation is affirmed.
       Chief Judge GRATTON and Judge HUSKEY CONCUR.




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