                IN THE SUPREME COURT OF THE STATE OF IDAHO
                               Docket No. 41912
IRWIN RYAN RAY ADAMS,                               )
                                                    )
                                                             Boise, December 2014 Term
     Petitioner-Appellant,                          )
                                                    )
                                                             2015 Opinion No. 32
v.                                                  )
                                                    )
                                                             Filed: March 19, 2015
STATE OF IDAHO,                                     )
                                                    )
                                                             Stephen W. Kenyon, Clerk
     Respondent.                                    )
                                                    )

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

       District court order dismissing post-conviction petition, affirmed.

       Sara B. Thomas, Idaho State Appellate Public Defender, Boise, for appellant.
       Jason C. Pintler, Deputy Appellate Public Defender, argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. John
       C. McKinney, Deputy Attorney General, argued.

                          __________________________________
BURDICK, Chief Justice
       The Idaho Supreme Court granted a petition for review of a Court of Appeals decision in
this case. Irwin Ryan Ray Adams appealed the Jerome County district court’s decision
summarily dismissing his post-conviction relief petition, which the Idaho Court of Appeals
affirmed. Adams asserts that the district court erroneously: (1) weighed the State’s accident
reconstruction expert’s trial testimony against Adams’s accident reconstruction expert’s
affidavits; (2) reached its own conclusions as to purported flaws in Adams’s accident
reconstruction expert’s conclusions; and (3) wrongfully determined that even if Adams’s
accident reconstruction expert’s testimony would have been presented at trial, it would not have
changed the outcome of the case. Adams also contends that the district court erred when it
dismissed the claim that trial counsel was ineffective for failing to investigate and present
evidence that Adams’s vehicle was incapable of going the speeds the State alleged during trial.
Accordingly, Adams asks this Court to vacate the district court’s order summarily dismissing his

                                                1
post-conviction relief petition and remand the case back to the district court for an evidentiary
hearing. We affirm the district court’s decision.
                     I.   FACTUAL AND PROCEDURAL BACKGROUND
          On October 24, 2009, Irwin Ryan Ray Adams (“Adams”) lost control of his vehicle while
traveling at a high rate of speed and crashed. Adams’s best friend, who was in the passenger seat,
died from injuries he sustained in the accident. The State subsequently charged Adams with
felony vehicular manslaughter. The State contended that Adams drove with gross negligence by
driving 108 miles per hour (mph) in a 50 mph zone trying to chase down another vehicle, which
resulted in Adams crashing his vehicle and killing his friend. Adams entered a not guilty plea on
June 28, 2010, and the trial began on March 9, 2011.
          Two attorneys represented Adams in the underlying case. Dan Taylor (“Taylor”), who
represented Adams before trial, retained Carl Cover (“Cover”), an accident reconstruction expert.
Taylor gave Cover photographs of the roadway where the accident occurred, interviews of
Adams’s family members, and the Idaho State Police (“ISP”) accident reconstruction report.
Cover subsequently presented his preliminary results to Taylor, which concluded that Adams
was traveling between 70 and 75 mph when the accident occurred. However, Cover advised
Taylor that he needed to see copies of all accident scene photographs the ISP took before he
could finalize his findings as to Adams’s speed. Cover also informed Taylor that he needed to
view Adams’s vehicle if Taylor intended to proceed with the theory that Adams lost control of
his vehicle because another vehicle struck him from behind. In response, Taylor told Cover to
finish the report and agreed to provide him with the additional photographs he requested.
According to Cover, that was the last contact he had with Taylor despite Cover’s numerous
attempts to reach him, and Cover never received the additional material he requested. Cover
testified that from that point forward, he never had contact with anyone else acting on Adams’s
behalf.
          Adams’s second counsel, Stacey Gosnell (“Gosnell”), took over Adams’s case after she
and Taylor dissolved their legal partnership. On two separate occasions prior to trial, Gosnell
represented to the court that she had been in contact with Cover. First, at a continuance hearing,
Gosnell informed the district court that Cover’s report was delayed because he was involved in
another trial. Following yet another continuance, Gosnell advised the State and the district court



                                                    2
that after speaking to Cover on the phone, she decided she would not call Cover as a witness at
trial. Gosnell never did call Cover as a witness at trial.
         At trial, the State contended that on October 24, 2009, Adams was chasing his girlfriend
who was in another vehicle at the time of the accident. The State argued that Adams was going
approximately 108 mph when he lost control and rolled his vehicle, resulting in his passenger’s
death. There were no witnesses to the accident other than individuals who came to the scene
shortly after the accident had already occurred. Sean Walker (“Walker”) and Denise Gibbs
(“Gibbs”) of the ISP investigated the accident. They concluded that Adams’s vehicle hit a crest
in the roadway and went airborne, leaving two parallel gouge marks approximately seven feet
long where it touched down, beginning 77-80 feet from where the vehicle went airborne. The
ISP investigation further revealed that Adams’s vehicle then slid for approximately 200 feet,
where it left the roadway and traveled another 19 feet until it struck an irrigation ditch, which
caused the vehicle to roll and travel approximately another 138 feet to its final resting point. In
all, Adams’s vehicle traveled approximately 578 feet from the time Adams lost control to the
final resting point. Gibbs presented extensive testimony at trial regarding the report and the
formula the ISP used to determine Adams’s speed.
         Adams argued at trial that someone in a white or gray Honda was chasing him at the time
of the accident and that he was not traveling faster than 75 mph.1 Adams testified that he had not
seen his girlfriend that day and that he and his friend left his house to purchase a fuel pump in
Twin Falls when the Honda started following him and “pushing” him from behind. 2 Adams
stated that he decided to go to the Jerome Police Department and that the last time he looked at
his speedometer he was doing approximately 75 mph and the other vehicle was right on his tail.
Adams then testified that after that, he did not remember anything until after his car came to a
rest. Adams’s theory was that the vehicle chasing him struck his vehicle from the rear, which
caused him to lose control and crash.
         On March 11, 2011, the jury returned a guilty verdict on the felony vehicular
manslaughter charge. Adams subsequently appealed his conviction. While his appeal was

1
  Adams also testified that it was possible he could have been traveling faster than 75 mph when he lost control.
2
  However, in his petition for post-conviction relief, Adams changed his story. There, Adams stated that his
girlfriend used his car earlier that day to drive to her mother’s house and that he spoke with her at that time. Adams
further stated that after his girlfriend returned to his house from her mother’s later that day, she and Adams’s sister
got into an argument. Adams asserted that his girlfriend then called her mother to pick her up and that once she left
Adams’s house with her mother, Adams and his friend got into Adams’s vehicle intending to follow his girlfriend.

                                                          3
pending, Adams filed a post-conviction petition. In that petition, Adams asserted several grounds
for relief, including that his counsel was ineffective by failing to investigate and present evidence
that another vehicle was chasing Adams and that Adams could not have been traveling faster
than 75 mph at the time of the accident. Adams filed several affidavits to support his petition,
including affidavits from Cover, a mechanic, and Adams’s father.
       On December 12, 2011, the district court issued a notice of intent to dismiss, which
pointed out several deficiencies in Adams’s petition that prevented the district court from
granting Adams’s requested relief. Specifically, the district court found that Cover’s affidavit
was conclusory and that Adams failed to present facts to show how Gibbs’s formula for
calculating Adams’s speed was erroneous or unreliable. Moreover, the court pointed out that
Adams’s family sold Adams’s vehicle before the State charged Adams and that although
Adams’s father later recovered the motor, the rest of the vehicle was no longer available to
inspect. The court reasoned that those facts created a presumption that the evidence would have
been unfavorable to Adams and that Adams could not argue his counsel was ineffective for
failing to present evidence of the vehicle’s mechanical difficulties when Adams’s own family
destroyed the evidence.
       Adams subsequently filed a memorandum opposing the court’s notice of intent to dismiss
and several affidavits in support of that memorandum, including a supplemental affidavit from
Cover. The district court found that Adams’s additional evidence did not cure the deficiencies in
his claims and as a result, Adams failed to establish a genuine issue of material fact that would
entitle Adams to his requested relief. The district court summarily dismissed Adams’s post-
conviction petition. Adams appealed the district court’s decision, arguing that there was a
genuine issue of material fact as to whether he was prejudiced by trial counsel’s failure to: (1)
present Cover’s expert witness testimony; and (2) investigate and present evidence of Adams’s
motor’s mechanical issues.
       The Court of Appeals affirmed the district court’s decision on the basis that Cover’s
proffered testimony was conclusory and speculative and that neither Cover’s testimony nor the
mechanic’s testimony created a reasonable probability that the jury’s verdict would have
changed. Adams petitioned this Court for review.




                                                 4
                                II.      STANDARD OF REVIEW
       On a petition for review, this Court gives serious consideration to the Court of Appeals’
views, but directly reviews the lower court’s decision. State v. Purdum, 147 Idaho 206, 207, 207
P.3d 182, 183 (2009). A post-conviction petition under the Uniform Post-Conviction Procedure
Act is a civil proceeding governed by the Idaho Rules of Civil Procedure. Pizzuto v. State, 146
Idaho 720, 724, 202 P.3d 642, 646 (2008). Therefore, an applicant must prove his or her
allegations by a preponderance of evidence. Hauschulz v. State, 144 Idaho 834, 838, 172 P.3d
1109, 1113 (2007); I.C.R. 57(c). Furthermore, admissible evidence supporting the applicant’s
allegations must accompany the post-conviction petition, otherwise the application is subject to
dismissal. State v. Payne, 146 Idaho 548, 561, 199 P.3d 123, 136 (2008) (citing I.C. § 19-4903).
       Idaho Code section 19-4906 authorizes trial courts to summarily dismiss post-conviction
petitions pursuant to a party’s motion or upon the court’s own initiative. Summary dismissal of a
petition is the procedural equivalent of summary judgment under I.R.C.P. 56. Payne, 146 Idaho
at 561, 199 P.3d at 136. Therefore, summary dismissal is permissible only when the applicant
fails to raise a genuine issue of material fact that, if resolved in the applicant’s favor, would
entitle the applicant to the relief requested. Id. If the applicant presents a genuine issue of
material fact, the trial court must conduct an evidentiary hearing. Id. “However, summary
dismissal may be appropriate even where the State does not controvert the applicant’s evidence
because the court is not required to accept either the applicant’s mere conclusory allegations,
unsupported by admissible evidence, or the applicant’s conclusions of law.” Id.
       When this Court reviews a district court’s summary dismissal of a post-conviction
petition without a hearing, this Court must determine whether the pleadings, depositions,
admissions, and affidavits on file create a genuine issue of fact. Id. “[W]here the evidentiary
facts are not disputed and the trial court rather than a jury will be the trier of fact, summary
judgment is appropriate, despite the possibility of conflicting inferences because the court alone
will be responsible for resolving the conflict between those inferences.” Id. (quoting State v.
Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008)). Moreover, the trial judge is not
constrained to draw inferences in favor of the party opposing a summary judgment motion.
Instead, “the trial judge is free to arrive at the most probable inferences to be drawn from
uncontroverted evidentiary facts.” Id.



                                                5
                                       III.    ANALYSIS
       Adams argues the district court erred by summarily dismissing his petition for post-
conviction relief because there was a genuine issue of material fact as to whether he was
prejudiced by trial counsel’s failure to: (1) present Cover’s expert witness testimony at trial; and
(2) investigate and present evidence of Adams’s motor’s mechanical condition.
A. The district court did not err when it summarily dismissed Adams’s post-conviction
petition.
       A post-conviction relief claim based on ineffective assistance of counsel will only avoid
summary dismissal where the defendant establishes the existence of material issues of fact as to
whether: (1) counsel’s performance was objectively deficient and; (2) the deficiency prejudiced
the defendant’s case. Kelly v. State, 149 Idaho 517, 522, 236 P.3d 1277, 1282 (2010); Strickland
v. Washington, 466 U.S. 668, 687 (1984).
       Under the first prong of the Strickland analysis, the defendant bears the burden of
proving that “counsel’s performance fell below an objective standard of reasonableness.” Aragon
v. State, 114 Idaho 758, 762, 760 P.2d 1174, 1178 (1988) (emphasis omitted) (quoting
Strickland, 466 U.S. at 688). The appellate court presumes that trial counsel was competent “and
that trial tactics were based on sound legal strategy.” State v. Porter, 130 Idaho 772, 792, 948
P.2d 127, 147 (1997). Trial counsel’s tactical decisions cannot justify relief “unless the decision
is shown to have resulted from inadequate preparation, ignorance of the relevant law or other
shortcomings capable of objective review.” Payne, 146 Idaho at 561, 199 P.3d at 136.
       The second prong requires a defendant to “show that the deficient conduct so undermined
the proper functioning of the adversarial process that the trial cannot be relied upon as having
produced a just result.” Ivey v. State, 123 Idaho 77, 80, 844 P.2d 706, 709 (1992); see also
Strickland, 466 U.S. at 687 (The second prong “requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”). We have
recognized that this is a “weighty burden” for a defendant to carry. Aragon, 114 Idaho at 764,
760 P.2d at 1180. Indeed, a defendant must show a reasonable probability that the trial’s
outcome would have been be different but for counsel’s deficient performance. State v. Row, 131
Idaho 303, 312, 955 P.2d 1082, 1091 (1998). “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
       It is not enough “to show that the errors had some conceivable effect on the outcome of
the proceeding.” Id. “Virtually every act or omission of counsel would meet that test, and not
                                                 6
every error that conceivably could have influenced the outcome undermines the reliability of the
result of the proceeding.” Id. at 693. Indeed, we have recognized that to undermine confidence in
the outcome, a plaintiff must show a substantial, not just conceivable, likelihood of a different
result. Murray v. State, 156 Idaho 159, 164, 321 P.3d 709, 714 (2014). Therefore,
       a court hearing an ineffectiveness claim must consider the totality of the evidence
       before the judge or jury. Some of the factual findings will have been unaffected
       by the errors, and factual findings that were affected will have been affected in
       different ways. Some errors will have had a pervasive effect on the inferences to
       be drawn from the evidence, altering the entire evidentiary picture, and some will
       have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly
       supported by the record is more likely to have been affected by errors than one
       with overwhelming record support. Taking the unaffected findings as a given, and
       taking due account of the effect of the errors on the remaining findings, a court
       making the prejudice inquiry must ask if the defendant has met the burden of
       showing that the decision reached would reasonably likely have been different
       absent the errors.
Strickland, 466 U.S. at 695–96. Thus, to determine whether counsel’s errors prejudiced the trial’s
outcome, it is essential to compare the evidence actually presented to the jury with the evidence
that may have been presented had counsel acted differently. Clark v. Arnold, 769 F.3d 711, 728
(9th Cir. 2014). Courts must focus their inquiry on the fundamental fairness of the trial and
whether the result is “unreliable because of a breakdown in the adversarial process that our
system counts on to produce just results.” Strickland, 466 U.S. at 696.
       The district court in this case concluded that there was “a triable issue of fact as to
whether counsel for the petitioner was deficient and there [was] a prima facie showing as to the
first element of ineffective assistance of counsel.” The parties do not challenge the court’s
decision that Adams’s counsel’s representation was deficient. Rather, the parties focus on the
court’s findings as to Strickland’s prejudice prong. Therefore, we confine our analysis to whether
the district court erred in determining trial counsel’s performance did not prejudice Adams.
    1. There is no genuine issue of material fact as to whether trial counsel’s failure to present
       Cover’s expert testimony prejudiced Adams.
       Adams argues that the district court erred when it determined that Adams failed to
present admissible evidence sufficient to undermine the jury’s verdict. Specifically, Adams
argues the district court erred twice: first, by finding that Cover’s proffered testimony was
conclusory and speculative; and second, by finding that even if Cover’s testimony had been
offered at trial, it would not have changed the jury’s verdict. Adams asserts that had the district


                                                7
court conducted an evidentiary hearing, Cover would have explained his conclusion that Gibbs’s
calculations were wrong and that Adams was only traveling 75 mph at the time of the accident.
       A post-conviction petition “must present or be accompanied by admissible evidence
supporting its allegations, or the application will be subject to dismissal.” Payne, 146 Idaho at
561, 199 P.3d at 136; I.C. § 19-4903. Only expert opinions that are based upon a proper factual
foundation are admissible at trial. Bromley v. Garey, 132 Idaho 807, 811, 979 P.2d 1165, 1169
(1999). Expert opinion that is speculative, conclusory, or unsubstantiated by facts in the record is
of no assistance to the jury in rendering its verdict, and is therefore inadmissible as evidence
under I.R.E. 702. Coombs v. Curnow, 148 Idaho 129, 140, 219 P.3d 453, 464 (2009). Testimony
is speculative when it “theoriz[es] about a matter as to which evidence is not sufficient for
certain knowledge.” Karlson v. Harris, 140 Idaho 561, 565, 97 P.3d 428, 432 (2004). District
courts may properly exclude expert opinion that merely suggests possibilities because it would
only invite conjecture. Bromley, 132 Idaho at 811, 979 P.2d at 1169.
       In its notice of intent to dismiss, the district court found that Cover’s affidavit was
deficient because it did not discuss how Cover reached his conclusions regarding Adams’s speed
or upon what data Cover based his speed calculation. Adams submitted Cover’s supplemental
affidavit in an attempt to cure the deficiencies and to provide further proof of what Cover would
have testified to at trial. The district court concluded that Cover’s proffered testimony in his
supplemental affidavit was speculative and conclusory.
       Adams argues that in reaching this decision, the district court erroneously weighed
Cover’s affidavits against Gibbs’s testimony and concluded that Gibbs was correct. Adams also
asserts that the district court applied the incorrect legal standard when it concluded an
evidentiary hearing was not required. Adams contends that because there was disputed evidence
as to Adams’s speed, the district court was required to construe the evidence and draw all
reasonable inferences in Adams’s favor as the non-moving party. Instead, Adams argues, the
district court erroneously weighed the evidence in the State’s favor and criticized the specifics of
Cover’s conclusions.
       There is nothing in the record to indicate the district court “weighed Cover’s affidavits
against Gibbs’s trial testimony” or that the district court “concluded that Gibbs was correct.”
Instead, the district court reviewed Cover’s affidavits and ultimately determined that Cover’s
proffered testimony was speculative and conclusory and the court implied that the testimony

                                                 8
would have therefore been inadmissible at trial. Specifically, the district court noted that “Mr.
Cover is of the opinion that it is unnecessary to view the accident scene to determine the location
of the take-off point or to measure the launch angle; yet he opines that the ISP investigation is in
error, without being able to say where the alleged error occurred.” Because Cover could not
point to where the alleged error occurred in Gibbs’s calculations, but only opine that “an error
did occur,” the district court concluded Cover’s opinions were conclusory and speculative,
noting that such testimony would have been of no assistance to the jury and was therefore
inadmissible evidence. That decision was within the district court’s discretion. Bromley, 132
Idaho at 811, 979 P.2d at 1169 (“The admission of expert testimony is within the sound
discretion of the trial court.”).
        The district court also applied the correct legal principles. After determining Cover’s
opinions were conclusory and speculative, the district court then looked at the uncontroverted
facts of the case—namely, that Adams drove at such a rate of speed that when his vehicle hit a
crest in the road it went airborne and traveled 80 feet before touching down, where it left seven-
foot gouge marks, slid another 200 feet, left the roadway, and struck an irrigation ditch, which
caused the vehicle to roll another 138 feet to its final resting point, resulting in his passenger’s
death. Based on these uncontroverted facts, the court determined that even if Cover’s testimony
had been presented at trial, it would not have changed the jury’s verdict. Therefore, the district
court essentially concluded that even viewing Cover’s testimony in the light most favorable to
Adams, it still would not entitle Adams to his requested relief. Again, the district court was
entitled to make such an inference. Loomis v. City of Hailey, 119 Idaho 434, 437, 807 P.2d 1272,
1275 (1991) (“When an action is to be tried before the court without a jury, the judge is not
constrained to draw inferences in favor of the party opposing a motion for summary judgment
but rather the trial judge is free to arrive at the most probable inferences to be drawn from
uncontroverted evidentiary facts.”). The district court applied the correct legal principles and we
find no error in the court’s reasoning.
        After reviewing the facts and the record, we agree with the district court that Cover’s
testimony was speculative and conclusory. Therefore, Cover’s testimony would have been
inadmissible at trial. The following excerpts from Cover’s supplemental affidavit are relevant to
our decision:



                                                 9
       . . . Because airborne equations involve trigonometric functions, a small error in
       field data (especially at low launch angles) may produce a large error in the
       calculated speed results. The investigating officer’s report and calculations
       indicate an angle of 1.8 degrees was used for the take-off angle. The officer did
       not note in any of the material provided to me how the take-off angle was
       measured nor how the vertical fall distance was measured. There was also no
       indication of how a take-off point was established in order to measure an airborne
       distance . . .
       ....
       . . . Without details concerning the exact measurements and procedures utilized by
       the investigating officers I cannot say where the error occurred in their airborne
       calculation, only that it is my opinion that an error did occur and given the
       roadway geometry and physical evidence available it is my expert opinion that an
       airborne evaluation error would be easy to make.
These averments, taken together with the rest of Cover’s affidavits, indicate that Cover criticized
the ISP’s conclusion as to Adams’s speed based on a lack of information in the investigative
reports. Thus, Cover relied on reports that he received months before trial rather than on Gibbs’s
trial testimony, which detailed the techniques and calculations Gibbs used to determine Adams’s
speed. Indeed, Gibbs testified at trial that the crest of the roadway north of the gouge marks was
the only area of the roadway that could have been the “take-off point,” and that the take-off
angle, or “launch angle,” was measured at the crest of the roadway with a digital level, which
recorded a launch angle of 1.8 degrees. Gibbs then testified that she measured from where the
level sat at the crest of the roadway to where the touchdown marks began to determine the
distance the vehicle traveled from take-off to touch-down, which was 80.33 feet. Finally, Gibbs
testified that to determine the height measurement of how far the car fell, she used a level and
construction line string to measure from the crest of the roadway straight out to where the
touchdown marks were and then down from the string to the roadway surface. Gibbs testified
that that measurement was 1.6 feet. From there, Gibbs testified that she put those three
measurements—the launch angle, the distance the car traveled, and the height measurement of
how far the car fell—to determine the vehicle’s speed at the point of take-off, which was 108.2
miles per hour. Cover’s affidavits are devoid of any mention of this trial testimony let alone any
averments that specifically contest the detailed testimony regarding the “measurements and
procedures” Cover states were necessary before he could determine where the alleged error in
Gibbs’s calculations occurred.



                                                10
       Therefore, Cover’s averments merely theorize that an error occurred in Gibbs’s airborne
calculation without identifying any evidence that would support the theory. Karlson, 140 Idaho
at 565, 97 P.3d at 432. Indeed, Cover explicitly stated in his supplemental affidavit that he was
missing information as to: (1) how the take-off angle was measured; (2) how the vertical fall
distance was measured; and (3) how a take-off point was established in order to measure an
airborne distance. As illustrated above, Gibbs’s trial testimony elaborated on all three of these
calculations. What is more, Cover never visited the accident scene to take his own measurements
or to apply his own procedures in determining these three calculations. That Cover based his
opinion on an incomplete set of facts is further evident from his averment that he could not say
definitively where an error occurred, but only that it was his “opinion” that an error did occur.
Expert opinion that is speculative, conclusory, or unsubstantiated by facts in the record does not
assist the jury in rendering its verdict and, therefore, is inadmissible as evidence. Weeks v. E.
Idaho Health Servs., 143 Idaho 834, 838, 153 P.3d 1180, 1184 (2007). We affirm the district
court’s determination that Cover’s proffered testimony was speculative, conclusory, and
unsubstantiated by facts in the record. Therefore, the testimony would have been inadmissible at
trial. Consequently, Cover’s proffered testimony was insufficient to create a genuine issue of
material fact that trial counsel’s failure to present Cover’s testimony prejudiced Adams.
    2. There is no genuine issue of material fact as to whether trial counsel’s failure to
       investigate and present evidence on Adams’s vehicle’s mechanical issues prejudiced
       Adams.
       Adams also argues that there was a genuine issue of material fact as to whether trial
counsel’s failure to investigate and present evidence of Adams’s vehicle’s mechanical issues
prejudiced Adams. The district court concluded that the mechanic’s testimony only went to the
attainable speed of Adams’s vehicle, which would not, in and of itself, undermine the jury’s
verdict or satisfy Strickland’s prejudice prong. We agree.
       Several unfavorable facts work against Adams on this issue. First, it is not clear how the
evidence could be admitted, as the vehicle’s motor was out of the Adams family’s possession for
almost a year before trial. Indeed, although Adams’s father stored the vehicle at his home for
several months after the accident, he sold it to a salvage yard in April of 2010, nearly a year
before the trial began. That salvage yard subsequently removed the motor from the vehicle and
crushed the body. Adams’s father did not attempt to retrieve the motor from the salvage yard to
have the mechanic examine it until the end of July 2011, which was four months after the trial

                                                11
resulted in a guilty verdict. By that time, the vehicle’s motor had been out of the Adams family’s
possession for over a year. Second, it is unclear from the record when Adams informed his trial
counsel of the alleged mechanical issues. Adams admitted to never discussing the alleged
mechanical issues with his first counsel but did attempt, at some point, to discuss the issue with
his second counsel. Finally, the mechanic stated in his affidavit that it was possible that Adams’s
vehicle’s motor “could have still produced speeds of up to one hundred eight (108) miles per
hour.” From these facts alone, this Court cannot conclude that trial counsel’s failure to
investigate and present evidence regarding the vehicle’s mechanical issues prejudiced Adams. In
any event, and assuming, arguendo, that the mechanic’s testimony had been presented to the
jury, we conclude that it is not reasonably probable that the jury’s verdict would have changed.
       Indeed, as the district court correctly pointed out, the mechanic’s testimony would have
only gone to the maximum speed Adams’s vehicle was capable of reaching, which allegedly
would have been 70 to 75 mph. Adams assumes the jury would accept this testimony as true and,
on that basis alone, conclude that he did not drive with gross negligence. We disagree. Evidence
of Adams’s speed would have only been a building block in Adams’s defense and could not, in
and of itself, be proof of whether Adams was driving his vehicle with gross negligence. In other
words, Adams’s speed is not dispositive of whether he drove with gross negligence at the time of
the accident. The jury had to look at Adams’s driving at the time of the accident and consider the
totality of the evidence to determine whether Adams drove with gross negligence. The jury’s
finding of gross negligence was not necessarily limited to Adams’s speed.
       At trial, the State was required to show that Adams committed an unlawful act while
operating his vehicle; that he committed the unlawful act with gross negligence; and that the
operation of his vehicle was a significant cause of the passenger’s death. Idaho Criminal Jury
Instruction 342 defines “gross negligence” as “a wanton, flagrant or reckless disregard of
consequences or willful indifference of the safety or rights of others.” Whether Adams was
driving 25 mph or 50+ mph over the posted speed limit, it did not change the fact that Adams,
beyond a reasonable doubt, committed an unlawful act: speeding. Indeed, even if the mechanic
testified at trial that the vehicle’s motor prevented Adams from going any faster than 70 to 75
mph and the jury believed that testimony, there was no dispute Adams operated his vehicle in a
way that significantly contributed to his passenger’s death. That is, the uncontroverted evidence
would still show that Adams drove at least 20 mph over the speed limit and in such a manner that

                                                12
he lost control of his vehicle, which then traveled nearly 600 feet to its final resting point,
resulting in his passenger’s death. Aside from those facts, there was ample testimony at trial for
the jury to conclude Adams drove with gross negligence.
         Specifically, the following evidence from trial was sufficient to establish Adams acted
with gross negligence:
         1) Adams’s testimony that it was possible he could have been traveling faster than 75
            mph when he lost control;
         2) Several witnesses’ testimony that Adams told them that he was traveling in excess of
            100 mph;
         3) Witness testimony that Adams said that the victim had asked Adams to stop and let
            him out of the vehicle at one point during the high-speed chase;
         4) Expert testimony and evidence that showed Adams was needlessly chasing the
            vehicle his girlfriend was in at a high rate of speed on a narrow country road that had
            significant rises and falls; and
         5) Expert testimony and evidence that showed Adams’s speed, combined with the road
            conditions, caused the vehicle to go airborne for approximately 80 feet before it
            returned to the roadway, leaving two parallel gouge marks approximately seven feet
            long, then sliding approximately 200 feet, where it left the roadway and traveled
            another 19 feet until it struck an irrigation ditch, which caused the vehicle to roll and
            travel another 138 feet to its final resting point;
Based on these facts, the totality of circumstances indicate that Adams’s conduct amounted to “a
wanton, flagrant or reckless disregard of consequences or willful indifference of the safety or
rights of others.” The mechanic’s testimony would have done little to rebut this evidence,
particularly in light of the fact that (1) the mechanic stated in his affidavit that it was “within the
realm of possibility that the motor I disassembled and observed could have still produced speeds
of up to one hundred eight (108) miles per hour” and (2) that witness testimony at trial had
destroyed Adams’s credibility beyond repair. 3
         Overwhelming evidence from trial supports the jury’s conclusion that Adams acted with
gross negligence. Adams had to show more than a conceivable likelihood of a different result at
trial had trial counsel presented evidence of the motor’s mechanical condition. He failed to do so.
Indeed, Adams has not shown that his trial counsel’s failure to present the evidence “so

3
  Several witnesses, including Adams’s friends and the victim’s family, testified at trial that Adams made statements
to them that he was traveling over 100 mph. Adams himself testified at trial that it was possible he was going faster
than 75 mph when he lost control. Furthermore, one of Adams’s friends also testified that Adams stated that “he
should have listened [to the passenger] a couple miles back when . . . [he] was saying he wanted to get out.” One
witness even testified that Adams switched his story as to who was chasing who. Finally, two witnesses testified at
trial that they were involved in a road-rage incident with Adams the day before the accident.

                                                        13
undermined the proper functioning of the adversarial process that the trial cannot be relied upon
as having produced a just result.” Ivey, 123 Idaho at 80. As the district court noted, trial
counsel’s failure to present the mechanic’s testimony did not “clear [Adams] of alleged guilt,
excuse his actions, or reduce his punishment.” (quoting Baker v. State, 142 Idaho 411, 422, 128
P.3d 948, 959 (Ct. App. 2005). 4
         Given the overwhelming evidence supporting the jury’s verdict, we conclude that it is not
reasonably probable that the mechanic’s testimony would have changed the outcome of the trial.
We therefore hold that the district court correctly determined there was no genuine issue of
material fact that trial counsel’s failure to present evidence as to the vehicle’s mechanical issues
prejudiced Adams.
         Because we hold that Adams failed to present a genuine issue of fact that he was
prejudiced by trial counsel’s failure to present Cover’s testimony or by trial counsel’s failure to
present evidence as to Adams’s vehicle’s mechanical issues, the district court did not err when it
summarily dismissed Adams’s post-conviction petition.
                                              IV. CONCLUSION
         For the foregoing reasons, we affirm the district court’s decision summarily dismissing
Adams’s post-conviction petition. We award costs on appeal to respondent.
         Justices EISMANN, J. JONES and HORTON, CONCUR.
         KIDWELL, Justice Pro-Tem, dissenting.
         The right to counsel is one of the foundations of the legal system and our form of
government. In this case the majority opinion and the record makes it clear that Irwin Ryan Ray
Adams did not receive effective assistance of public defender counsel from the trial and up
through the judicial system. No counsel followed up on the accident reconstruction expert that
had initially been retained. The record clearly indicates that this competent expert was willing to


4
  In that case, Baker crashed his vehicle while speeding in a 35 mph zone, which resulted in his passenger’s death.
Baker, 142 Idaho at 415, 128 P.3d at 952. Baker pled guilty to vehicular manslaughter and subsequently petitioned
the court for post-conviction relief. Id. Baker alleged his counsel was ineffective in failing to discover that the ISP
accident reconstruction expert’s estimate that Baker was driving 97 mph was wrong. Id. Baker always asserted that
he was driving less than 97 mph. Id. at 417, 128 P.3d at 954. The district court summarily dismissed the petition and
the Court of Appeals affirmed. The Court of Appeals reasoned that evidence showing Baker was traveling as little as
66 mph would not have provided the basis of a viable defense to vehicular manslaughter because there was other
evidence to support his conviction on that charge. Id. The Court of Appeals went on to conclude that the evidence
Baker presented did not “tend to clear Baker of alleged guilt, excuse his actions, or reduce punishment.” Id. at 422,
128 P.3d at 959.


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assist, but Mr. Adams’s counsel did not follow through. Then the Rule 35 counsel did not pursue
the matter. Then all of the appellate public defenders argued in cursory briefs and to this Court
that Mr. Adams’s expert would not have made any difference to the jury. Public defenders are
for defendants, not to protect lower court public defenders.
       Because of the fact that the expert reconstruction expert for Mr. Adams was not even
pursued or presented, the jury heard only the State’s expert. The experts differed in estimated
speed by at least 30 mph. Whether this would have influenced the jury to find Mr. Adams guilty
of the lesser crime of misdemeanor vehicular manslaughter rather than felony vehicular
manslaughter (gross negligence) is unknown, but Mr. Adams should have had that testimony
heard by the jury.
       Because Mr. Adams did not receive effective assistance of counsel this case should be
remanded for a new trial.




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