               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 45457

STATE OF IDAHO,                                 )
                                                )     Filed: March 11, 2019
       Plaintiff-Respondent,                    )
                                                )     Karel A. Lehrman, Clerk
v.                                              )
                                                )     THIS IS AN UNPUBLISHED
BLAKE RYAN DAVIS,                               )     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. Steven J. Hippler, District Judge.

       Judgment of conviction for felony possession of a controlled substance,
       misdemeanor possession of a controlled substance, possession of drug
       paraphernalia, and being a persistent violator, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

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

LORELLO, Judge
       Blake Ryan Davis was found guilty by a jury of felony possession of a controlled
substance, misdemeanor possession of a controlled substance, and possession of drug
paraphernalia. Davis also admitted to a sentencing enhancement for being a persistent violator.
Davis appeals, asserting that the prosecutor committed misconduct during closing argument
rising to the level of fundamental error. For the reasons set forth below, we affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
        Officers visited Davis’s residence to seek his assistance in locating another individual.
During the officers’ interaction with Davis, he appeared to be under the influence. As a result,


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the officers asked Davis for consent to search a nearby backpack and Davis agreed. The officers
found several knives and a lockbox inside the backpack. Davis provided the combination for the
lockbox and ultimately opened it for the officers. The lockbox contained heroin, oxycodone
pills, suboxone pills, drug paraphernalia, and a significant amount of cash. The lockbox also
contained a bag containing a brown substance, which Davis identified as heroin.
       The State charged Davis with trafficking in heroin, felony possession of a controlled
substance, misdemeanor possession of a controlled substance, and possession of drug
paraphernalia. The State also filed a persistent violator allegation. Davis pled not guilty and the
case proceeded to a jury trial. The jury found Davis guilty of both counts of possession of a
controlled substance and possession of drug paraphernalia, but was unable to reach a unanimous
verdict on the trafficking charge. Davis subsequently admitted the persistent violator allegation
and, pursuant to a plea agreement, pled guilty to the trafficking charge. 1 Davis appeals.
                                                 II.
                                   STANDARD OF REVIEW
       Generally, issues not raised below may not be considered for the first time on appeal.
State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Idaho decisional law, however,
has long allowed appellate courts to consider a claim of error to which no objection was made
below if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho
559, 571, 165 P.3d 273, 285 (2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262
(1971). In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court
abandoned the definitions it had previously utilized to describe what may constitute fundamental
error. The Perry Court held that an appellate court should reverse an unobjected-to error 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.




1
        Because Davis pled guilty to trafficking, that aspect of his judgment of conviction is not
at issue on appeal.

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                                               III.
                                           ANALYSIS
       For the first time on appeal, Davis asserts that the prosecutor’s rebuttal closing argument
constituted misconduct rising to the level of fundamental error. The State responds that Davis
has failed to demonstrate the prosecutor’s comments were improper, much less fundamental
error. We conclude that Davis has failed to meet his burden under the fundamental error test.
       Closing argument serves to sharpen and clarify the issues for resolution by the trier of
fact in a criminal case. State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007).
Its purpose is to enlighten the jury and to help the jurors remember and interpret the evidence.
Id.; State v. Reynolds, 120 Idaho 445, 450, 816 P.2d 1002, 1007 (Ct. App. 1991). Both sides
have traditionally been afforded considerable latitude in closing argument to the jury and are
entitled to discuss fully, from their respective standpoints, the evidence and the inferences to be
drawn therefrom. State v. Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969 (2003); Phillips, 144
Idaho at 86, 156 P.3d at 587. Appeals to emotion, passion, or prejudice of the jury through the
use of inflammatory tactics are impermissible. Phillips, 144 Idaho at 87, 156 P.3d at 588; see
also State v. Raudebaugh, 124 Idaho 758, 769, 864 P.2d 596, 607 (1993); State v. Pecor, 132
Idaho 359, 367, 972 P.2d 737, 745 (Ct. App. 1998). The prosecutor’s closing argument should
not include disparaging comments about opposing counsel. Phillips, 144 Idaho at 86, 156 P.3d
at 587; see also Sheahan, 139 Idaho at 280, 77 P.3d at 969; State v. Brown, 131 Idaho 61, 69,
951 P.2d 1288, 1296 (Ct. App. 1998); State v. Baruth, 107 Idaho 651, 657, 691 P.2d 1266, 1272
(Ct. App. 1984).
       One of the themes in Davis’s closing argument was that he did not know what was inside
the lockbox where the drugs were discovered, which is why he consented to the search of his
backpack and why he assisted the officers in opening the lockbox. Davis argued:
       Then [the officer] asked, “Can I search your bag.” He says sure. He said he had
       no drugs in the house and he let him search the bag where the drugs were found.
       Now, the State brought this up, speculation as to why, why would he do that?[2]


2
        In its initial closing argument, the prosecutor argued Davis had knowledge of the contents
of the lockbox because he provided the combination to the box. The prosecutor then commented
that the jury may wonder why Davis did so and argued:



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       Did he say that, you know, he thought the officer would take it easier on him if he
       were cooperative, or is it possible that he granted permission to search that bag
       and search that box not knowing what was in there? He helped him with the
       combination. He opened it up.
In rebuttal, the prosecutor argued:
               [Davis] denied having drugs. Well, surprise surprise, he denied having
       drugs. Why do dopers do what they do? Why do drug users do what they do?
       Who know[s]. I think there can be an inference drawn here he thought by first
       denying that the officers would go onto the next thing, okay, where’s [the
       individual we’re looking for], and forget about look[ing] around or doing
       anything more.
               That didn’t work, obviously, because [the officer] wanted to look in the
       bag and wanted to further pursue that. So it’s an effort to--the inference here is
       it’s an effort to kind of lead [the officer] off, hey, I’m cooperating now. Sure, of
       course, you can look in the bag but really in a hope that the officer will just say
       okay, well, if he--then it’s probably nothing, and go back to the subject of
       [looking for the individual they came to find].
               Again, who knows what dopers are thinking, right? You wouldn’t
       probably make a jail call also where you’re admitting everything when you should
       know you’re going to be recorded. But bad judgment.
       Davis did not object to any aspect of the foregoing rebuttal argument but argues, for the
first time on appeal, that the prosecutor’s use of the word “doper” to describe Davis was
improper. Davis contends the word is “purely pejorative” and was “only meant to evoke an
emotional reaction from the jurors” against his character. Davis equates the use of the word
“doper” with the use of the word “liar,” which this Court has cautioned can cross the line of
propriety.   See State v. Kuhn, 139 Idaho 710, 716, 85 P.3d 1109, 1115 (Ct. App. 2003).
However, it is not improper to refer to a defendant as a liar if the defendant admitted to lying in
connection with the case. State v. Gross, 146 Idaho 15, 18-19, 189 P.3d 477, 480-481 (Ct. App.
2008). Similarly, it is not improper to refer to the defendant as a “doper” if such a reference is
consistent with the evidence presented. In this case, the evidence was that Davis appeared to be



       We can only infer from the evidence possibly why he did that. Maybe he thought
       that if he just kind of cooperated at that point and said, yeah, yeah, yeah, here is
       the combination or whatever, that the officer would just say, nah, I don’t really
       care, this is not something I think I should even pursue or look into further, the
       guy seems to be so honest and open with me. I don’t know. But the bottom line
       is he did provide the combination to open it.

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under the influence when contacted by officers and had a significant amount of drugs in his
possession. Referring to him as a “doper” was consistent with the evidence. That the term has a
pejorative connotation is insufficient to make its use improper or violative of the Constitution.
Davis’s challenge to the prosecutor’s use of the term “doper,” therefore, fails to satisfy the first
prong of the Perry fundamental error analysis.
       Davis next contends that the argument excerpted above “disparaged” his defense.
According to Davis, saying “surprise surprise, he denied having drugs” and “[w]ho knows” why
“dopers do what they do” or what “dopers” are thinking “ridiculed” his defense that his
cooperation with law enforcement evidenced a lack of knowledge.               We disagree.      The
prosecutor’s rebuttal argument was a fair response to Davis’s argument that he would not have
consented to the search or facilitated access to the lockbox if he had known it contained drugs.
Davis’s argument invited the jury to consider why Davis did what he did. The State was entitled
to respond to that argument and doing so was not improper and did not violate Davis’s
constitutional rights. Davis’s disparagement claim fails to satisfy the first prong of the Perry
analysis.
       Finally, Davis contends that the prosecutor committed misconduct in rebuttal when
responding to Davis’s closing argument that the State failed to meet its burden of proving Davis
was guilty of trafficking heroin.     We need not address Davis’s arguments related to the
trafficking charge because Davis pled guilty to this offense following trial and has conceded that
his appellate claims “would not justify vacating that conviction.”
                                                 IV.
                                         CONCLUSION
       The prosecutor’s statements during rebuttal closing argument did not constitute
misconduct or rise to the level of fundamental error.         Accordingly, Davis’s judgment of
conviction is affirmed.
       Chief Judge GRATTON and Judge BRAILSFORD, CONCUR.




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