               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41904

WILLIAM JOHN LESTER,                             )    2016 Unpublished Opinion No. 482
                                                 )
       Petitioner-Appellant,                     )    Filed: April 12, 2016
                                                 )
v.                                               )    Stephen W. Kenyon, Clerk
                                                 )
STATE OF IDAHO,                                  )    THIS IS AN UNPUBLISHED
                                                 )    OPINION AND SHALL NOT
       Respondent.                               )    BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Patrick H. Owen, District Judge.

       Judgment denying petition for post-conviction relief, affirmed.

       William John Lester, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       William John Lester appeals from the district court’s judgment denying his petition for
post-conviction relief. Lester argues that the district court erred in dismissing his claims that
counsel was ineffective for failing to call certain witnesses at trial.   For the reasons set forth
below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       In 2008, an eight-year-old child lived with her father, but spent alternating weekends with
her mother, who lived with Lester. During one visit, Lester took the child into his bedroom,
blindfolded the child, and directed her to apply lotion to Lester’s genitals. Lester was found
guilty by a jury of lewd conduct with a minor under sixteen years of age. I.C. § 18-1508. Lester
appealed and this Court affirmed in an unpublished opinion. State v. Lester, Docket No. 38023


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(Ct. App. Mar. 30, 2012). Lester filed a petition for post-conviction relief, alleging that his trial
counsel was ineffective for failing to call expert and lay witnesses to present testimony regarding
Lester’s allergic reaction to lotions. Lester claims he has a medical condition that results in
painful skin conditions when exposed to lotion, detergents or soap, which could have
undermined the victim’s testimony at trial. After an evidentiary hearing on the issue, the district
court denied Lester’s petition. Lester appeals.
                                                  II.
                                   STANDARD OF REVIEW
       A claim of ineffective assistance of counsel may properly be brought under the
post-conviction procedure act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30
(Ct. App. 1992). To prevail on an ineffective assistance of counsel claim, the petitioner must
show that the attorney’s performance was deficient and that the petitioner was prejudiced by the
deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho
313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the petitioner has the
burden of showing that the attorney’s representation fell below an objective standard of
reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To establish
prejudice, the petitioner must show a reasonable probability that, but for the attorney’s deficient
performance, the outcome of the trial would have been different. Id. at 761, 760 P.2d at 1177.
This Court has long adhered to the proposition that tactical or strategic decisions of trial counsel
will not be second-guessed on appeal unless those decisions are based on inadequate preparation,
ignorance of relevant law, or other shortcomings capable of objective evaluation. Howard v.
State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct. App. 1994).
       In order to prevail in a post-conviction proceeding, the petitioner must prove the
allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865,
869, 801 P.2d 1216, 1220 (1990). When reviewing a decision denying post-conviction relief
after an evidentiary hearing, an appellate court will not disturb the lower court’s factual findings
unless they are clearly erroneous. I.R.C.P. 52(a); Russell v. State, 118 Idaho 65, 67, 794 P.2d
654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to be given to their
testimony, and the inferences to be drawn from the evidence are all matters solely within the
province of the district court. Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App.


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1988). We exercise free review of the district court’s application of the relevant law to the facts.
Nellsch v. State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct. App. 1992).
                                                  III.
                                               ANALYSIS
A.         Ineffective Assistance of Counsel
           The district court held an evidentiary hearing on Lester’s only claim not summarily
dismissed--that Lester’s counsel was ineffective for failing to call Lester and other lay witnesses
to testify about Lester’s skin condition. At that hearing, the totality of the evidence Lester
presented to the district court was Lester’s testimony that he would have told the jury that he was
allergic to any and all lotions. Lester did not call any other witnesses, including those who he
alleged would support his claim of a severe skin condition resulting in a rash when exposed to
lotions.
           The state presented evidence through the testimony of several witnesses. Lester’s trial
counsel testified that his investigator reported that Lester may not have been allergic to some
lotions and that jail records showed that Lester had eczema, but there was nothing in the records
about allergies to all lotions. Trial counsel explained that, at the time he was preparing for trial,
he believed Lester’s claimed allergy to lotions was a “superficial defense” and decided not to
move forward with eliciting testimony about his skin condition. However, Lester’s trial counsel
testified that, in hindsight, testimony about Lester’s skin condition might have been helpful to his
case. In addition, the state presented evidence though the victim’s mother, who lived with Lester
for two years--from approximately 2006 until 2008. The victim’s mother testified that Lester did
not have a skin condition and used any lotion, soap, or shampoo she bought--usually
nonspecialty generic products. The victim’s mother testified that she was subpoenaed and
prepared to testify accordingly in Lester’s trial, but was not called to testify.
           Based upon the evidence admitted at the hearing, the district court explained that Lester
had provided evidence that his trial counsel’s decision may have resulted from inadequate
preparation. The district court noted that Lester’s trial counsel was aware of Lester’s claim but
did not begin to examine the claim critically until shortly before trial. Further, Lester’s trial
counsel forgot to alert the district court that Lester’s skin condition may have been an important
issue in the case and did not raise the issue until the day of trial. Despite the district court’s


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finding with regard to Lester’s trial counsel’s shortcomings, the district court concluded that the
decision not to present evidence of Lester’s skin condition was tactical. However, the district
court explained, if counsel’s failure to present evidence of Lester’s skin condition was the result
of a shortcoming, Lester had not met his burden of showing that the outcome of the trial would
have been different. The district court explained that, had Lester testified that he was allergic to
all lotions, the victim’s mother’s testimony would have disputed Lester’s claim. In addition, the
district court explained that Lester did not assert his claim to either of the two investigating
officers or when he underwent a polygraph examination, which would have undermined his late
assertion of the defense.
        In its ruling, the district court noted that there was evidence presented of a tactical
decision by counsel, as well as inadequate preparation. However, we agree with the district
court’s conclusion that, even if his counsel’s performance was deficient, Lester failed to show a
reasonable probability that testimony about his skin condition would have changed the outcome
of his trial. The state had strong evidence to counter Lester’s testimony. Accordingly, we
cannot say that there is a reasonable probability that the outcome of Lester’s trial would have
been different had Lester testified at his trial.
        The remaining issue is whether Lester has proven that his counsel was ineffective for
failing to call Lester’s doctor as a witness, a claim which was summarily dismissed by the
district court.   In his petition for post-conviction relief, Lester alleged that the doctor’s
“testimony and my corresponding medical records could have been used to refute the case
presented” by the state. It is not enough to allege that a witness would have testified to certain
events or would have rebutted certain statements made at trial without providing, through
affidavit, nonhearsay evidence of the substance of the witnesses’ testimony. Thomas v. State,
145 Idaho 765, 770, 185 P.3d 921, 926 (Ct. App. 2008). Lester did not provide an affidavit from
the doctor and, therefore, did not meet his burden of providing evidence of the substance of the
doctor’s testimony at trial.      Accordingly, we hold that Lester has not shown that he was
prejudiced by his trial counsel’s failure to call the doctor to testify at trial.




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B.     Fifth Amendment
       Lester also alleges that the district court violated his Fifth Amendment rights by inferring
that his pre-arrest, post-Miranda1 silence, with regard to his skin allergy, is evidence of his guilt.
The Fifth and Fourteenth Amendments to the United States Constitution, as well as Article I,
Section 13 of the Idaho Constitution, guarantee a criminal defendant the right not to be
compelled to testify against himself or herself. State v. Ellington, 151 Idaho 53, 60, 253 P.3d
727, 734 (2011). The constitutional right against self-incrimination is not absolute and applies
only when the silence is used solely for the purpose of implying guilt. Id. at 61, 253 P.3d at 735;
State v. Moore, 131 Idaho 814, 821, 965 P .2d 174, 181 (1998).
       In the memorandum decision denying relief on Lester’s petition for post-conviction
relief, the district court provided the following explanation:
               Even if counsel’s decision was the result of some shortcoming, to obtain
       post-conviction relief, Lester must demonstrate that the outcome would have been
       different. [The child’s mother]’s testimony [that Lester did not have an allergy to
       lotion and that she had seen him use lotions] would have disputed Lester’s claim.
       The State has also demonstrated that Lester failed to assert this claim when
       interviewed separately by two investigating officers, and failed to assert this claim
       when he took a polygraph examination. The court concludes that Lester has
       failed to meet his burden to demonstrate that there is a reasonable probability that
       the jury would have reached a different conclusion.
In this case, the district court did not use Lester’s silence to imply guilt. Rather, the district
court’s comment about Lester’s silence explained why Lester had not shown that he was
prejudiced by his trial counsel’s performance. Essentially, the district court was explaining why
the jury might not have believed Lester’s defense. Because the district court’s comment did not
imply Lester’s guilt, his Fifth Amendment right against self-incrimination was not violated by
the district court’s comment.
                                                 IV.
                                          CONCLUSION
       Even if we assume, as did the district court, that counsel’s decision not to call Lester or
other nonexpert witnesses at trial amounted to deficient performance, Lester has not met his
burden of proof as to prejudice. As to the failure to call a medical doctor as a witness, Lester has

1
        See Miranda v. Arizona, 384 U.S. 436 (1966).


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not demonstrated deficient performance by his trial counsel. Finally, no Fifth Amendment
violations have been shown. Therefore, the district court’s judgment denying Lester’s petition
for post-conviction relief is affirmed. No costs or attorney fees are awarded on appeal.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.




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