               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40467

STATE OF IDAHO,                                   )       2014 Unpublished Opinion No. 627
                                                  )
       Plaintiff-Respondent,                      )       Filed: July 17, 2014
                                                  )
v.                                                )       Stephen W. Kenyon, Clerk
                                                  )
JASON JAY WARD,                                   )       THIS IS AN UNPUBLISHED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, Twin
       Falls County. Hon. Randy J. Stoker, District Judge.

       Judgment of conviction for rape, affirmed.

       Clayne S. Zollinger, Jr., Rupert, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent. Jessica M. Lorello argued.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Jason Jay Ward appeals from his judgment of conviction after a jury found him guilty of
rape. For the reasons that follow, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       In the early morning hours, a female (the victim) called 911 and reported that she had
been raped. Although she initially gave one description of the alleged perpetrator and the vehicle
driven by the alleged perpetrator, the victim identified Ward as the perpetrator the next day.
Ward was charged with rape by criminal complaint and was bound over to the district court.
Subsequently, an information was filed alleging that Ward committed rape.            An amended
information charged Ward with rape and alleged that he was a persistent violator. Ward then
entered into an Idaho Criminal Rule 11 plea agreement, agreeing to plead guilty to the rape
charge in exchange for the State agreeing to dismiss the persistent violator allegation and
recommend a unified sentence of fifteen years, with seven years determinate. At the change of


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plea hearing, Ward acknowledged that he had sexual intercourse with the victim, that the victim
resisted, and that he overcame that resistance by force or violence.
       Prior to sentencing, Ward substituted counsel and filed a motion to withdraw the guilty
plea. At a hearing on the motion to withdraw the guilty plea, the district court found that Ward
relied on a misstatement of law from Ward’s original attorney when he entered his guilty plea.
The court then determined that Ward’s plea was not knowing and voluntary and that Ward had
offered a just reason to withdraw his plea. Hence, the court granted Ward’s motion to withdraw
the guilty plea, and the case proceeded to trial.
       At trial, the State’s first witness was the victim. She testified that she had spent the day
boating with her twin sister, Ward, and her ex-boyfriend, who was also a friend of Ward. After
the victim and her twin sister made their way home, Ward and the ex-boyfriend picked up the
victim that evening and drove to Ward’s house in the ex-boyfriend’s car. At Ward’s house, the
group listened to music and consumed beer. The party of three grew when two young women,
who were invited over by the ex-boyfriend, arrived, but they left a short time later. Later in the
evening, the victim had an argument with her ex-boyfriend. Although the ex-boyfriend was
supposed to give the victim a ride home, he left Ward’s house and drove away. After trying to
contact the ex-boyfriend, and declining Ward’s offer to drive her to her house for $10 in gas
money, the victim started walking from Ward’s house and attempted to call her twin sister.
Approximately twenty minutes after she started walking, Ward pulled up in his truck, got out of
the truck while not wearing any pants or underwear, and effectively forced the victim into the
truck. Ward subsequently raped the victim near a canal, and she was dropped off by Ward at a
different location.
       The State then presented testimony from the officer who responded to the victim’s 911
call, from the paramedic who was in the ambulance that took the victim to the hospital, from the
hospital nurse who completed a sexual assault kit on the victim and acquired other evidence from
the victim, from the local evidence technician, and from employees of the Idaho State Police
Forensic Services laboratory. As to the evidence obtained from the victim, the nurse testified
that she presented a sealed evidence box to a non-testifying law enforcement officer. The local
evidence technician testified that he received the evidence box from the nontestifying law
enforcement officer and testified that he forwarded the evidence on to the Idaho State Police
Forensic Services laboratory. This evidence was then tested. Among the evidence were vaginal


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swabs collected from the victim with DNA on them that matched samples provided by Ward.
The State closed its case by presenting testimony from the deputy sheriff who interviewed Ward
and testimony from the 911 operator.
       The defense first called the ex-boyfriend. He testified, contrary to the victim’s testimony,
that he watched the victim and Ward leave Ward’s house in Ward’s truck.                        On
cross-examination, the prosecutor elicited that the ex-boyfriend was on felony probation for
intimidation of a witness (the victim in this case). Ward then took the stand in his own defense.
Ward claimed that he and the victim left together, that he was wearing pants when he left, and
that he and the victim had consensual sexual intercourse. The prosecutor, on cross-examination,
impeached Ward with statements Ward made at his guilty plea proceeding admitting to rape.
The jury found Ward guilty of rape, and he admitted to being a persistent violator. Ward
appeals.
                                               II.
                                          ANALYSIS
       Ward made statements at his guilty plea proceeding admitting to rape. The first issue is
whether the prosecutor’s use of these statements to impeach Ward at trial, after his plea was
withdrawn, violated Ward’s constitutional rights.       Ward also argues that the prosecutor
committed misconduct during the questioning of a defense witness and that the court erred by
admitting certain evidence without a proper chain of custody having been established or shown.
Finally, if we determine that more than one error was committed below, but we nonetheless
determine that each individual error is harmless, Ward contends that the cumulative error
doctrine applies.
A.     Impeachment with Statements Made During the Guilty Plea Proceedings
       Ward made statements at his guilty plea proceeding admitting to rape. The issue is
whether the prosecutor’s use of these statements to impeach Ward at trial, after his plea was
withdrawn, violated Ward’s constitutional rights. 1 As Ward acknowledges, he did not object to
the impeachment below. Accordingly, we must apply the State v. Perry, 150 Idaho 209, 245
P.3d 961 (2010), fundamental error analysis:



1
      The prosecutor used the statements to impeach Ward in accord with Idaho Rule of
Evidence 410(b)(3).

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       [W]e hold that in cases of unobjected to fundamental error: (1) the defendant
       must demonstrate that one or more of the defendant’s unwaived constitutional
       rights were violated; (2) the error must be clear or obvious, without the need for
       any additional information not contained in the appellate record, including
       information as to whether the failure to object was a tactical decision; and (3) the
       defendant must demonstrate that the error affected the defendant’s substantial
       rights, meaning (in most instances) that it must have affected the outcome of the
       trial proceedings.
Id. at 226, 245 P.3d at 978 (footnote omitted). Assuming without deciding that Ward has
demonstrated that “one of his unwaived constitutional rights was plainly violated,” id., we
advance to the third step of Perry.
       The third step of Perry requires that the defendant “bear[] the burden of proving there is a
reasonable possibility that the error affected the outcome of the trial.” Id. Ward’s opening brief
only directs the Court to a quote made by the trial court, and Ward articulates that “[i]t is
difficult not to assume the testimony of [Ward] influenced the jury’s finding of guilt.” The State
contends that Ward has not shown that there is a reasonable possibility that the error affected the
outcome of the trial because of the overwhelming evidence of Ward’s guilt presented at trial. As
to the quote selected by Ward, the State argues that the quote relates to other testimony about the
events of the night, such as how much alcohol was consumed.
       During sentencing, the district court proceeded to analyze the factors set forth in Idaho
Code § 19-2521 that weigh against imposing imprisonment. One of the factors for the court to
consider is whether “[t]here were substantial grounds tending to excuse or justify the defendant’s
criminal conduct, though failing to establish a defense.” I.C. § 19-2521(2)(d). The district judge
in Ward’s case considered the factor and explained how he considered the factor:
                Were there substantial grounds tending to excuse or justify the defendant’s
       criminal conduct though failing to establish a defense? We all know that alcohol
       was at the root of this incident that night. I think Mr. Ward was intoxicated. I
       think [the victim] was intoxicated. The degree of that intoxication on both parts
       is, I suppose, up in the air, but I remember very clearly the testimony that came
       out at trial that she was, [the victim] was a .08 at the time of testing in the hospital
       sometime after this incident. I think that’s legal intoxication in the state of Idaho.
       I have no idea where Mr. Ward’s alcohol level was, but it wouldn’t surprise me if
       it was greater than that, given the amount of alcohol that everybody testified they
       consumed that night.
                I bring up that point because of this: I don’t think that this jury heard, you
       know, the truth of what really happened that night because parts of this, the
       testimony from both sides in this case, some of it just doesn’t make any sense [to]
       me. I can go through and lay out all the reasons for that, but the conclusion that I

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       come to for purposes of sentencing is I don’t think we got the whole story. That’s
       what’s troubling about this case.
               So I guess what I’m saying here is that there are some--there is some
       explanation as to how this ultimate sexual activity occurred. I’m not saying it’s
       justified. I’m just saying that those are factors that I take a look at.
(Emphasis added.) Ward has honed in on the fact that the district judge, in considering the
factor, noted that he was not sure that the jury heard the complete truth from either side as it
relates to provocation. Yet the district court also recognized, in analyzing another factor, there
was more than enough evidence to support the conclusion that the victim was forcibly raped:
                I don’t know what this jury was thinking, but as I sat and listened to the
       evidence in this case, I had a hard time justifying in my own mind how this could
       have been a consensual sexual encounter when [the victim] ends up with the type
       of physical injuries that were described during the course of this trial. That’s
       totally inconsistent to me with anything approaching consensual sex.
                I recognize--I don’t know whether this is a situation that started off in a
       consensual way and got out of hand, or again, whether we just haven’t heard all of
       the testimony or the truth of what occurred here. But again, it really doesn’t
       matter because you stand convicted of a violent sexual offense.
       In this case, there was overwhelming testimony and evidence for the jury to conclude that
the victim was raped, even if Ward’s statements during the guilty plea proceeding had not been
admitted. Illustrative of this is the fact that, after two days of testimony, the jury was excused for
deliberation at 2:10 p.m. and returned at 3:50 p.m. with a guilty verdict against Ward. Given the
fact that testing of vaginal swabs revealed DNA that matched the sample provided by Ward,
there was no question that Ward had sexual intercourse with the victim. The remaining issue for
the jury, in essence, was whether the victim’s testimony was credible. Supporting the credibility
of the victim’s testimony was the testimony of the State’s other witnesses. The officer who
responded to the 911 call testified that she found the victim crying, incoherent, and distraught.
Moreover, the officer noticed that the victim was dirty and had weeds and debris on her. The
paramedic, too, noted that the victim had weeds in her hair, and also recalled that the victim had
ripped clothing, was disheveled and emotionally distraught, and recalled that she observed red
marks on the victim. Similarly, the hospital nurse witnessed redness on the victim’s face, a bite
mark, scratches, and early stages of bruising on the victim. And like the other witnesses, she too
saw that the victim had debris in her hair and on her clothing. Although Ward presented
testimony from the victim’s ex-boyfriend, he was not near the canal where the rape occurred and
the jury may have discounted his testimony because he was on felony probation for intimidation


                                                  5
of the victim in this case. Given the evidence, we are not persuaded that there is a reasonable
possibility that the assumed error in admitting the guilty-plea-proceeding statements affected the
outcome of the trial. Accordingly, Ward has not satisfied the third Perry step.
B.     Prosecutorial Misconduct
       Ward contends that the prosecutor committed misconduct while cross-examining a
defense witness, the victim’s ex-boyfriend.        At trial, defense counsel requested a sidebar
conference after the prosecutor asked the ex-boyfriend, “When you invited the two girls . . . over,
were you trying to get some girls for [Ward]?” Following the sidebar, the prosecutor asked the
ex-boyfriend if he was to give the victim a ride home. After acknowledging that he was and
explaining the victim’s original plan of being driven home by her twin sister, the ex-boyfriend
was asked, “And you left [the victim] there with [Ward] alone; correct?” The ex-boyfriend
responded, “Yes, momentarily.”          The record then reveals that the prosecutor stated,
“Momentarily. And it’s your--” before Ward’s defense counsel interjected, “Judge, we would
request the prosecutor not make gratuitous comments and noises in front of the jury.” The judge
responded that he “didn’t observe anything,” and Ward’s defense counsel noted for the record
that the prosecutor “laughed and said ‘momentarily’ like she was mocking the witness.”
       At a recess, defense counsel moved for a mistrial, arguing that “asking the question
essentially if [the ex-boyfriend] was pimping for the defendant to get women over there” was
prosecutorial misconduct and arguing that the question was posed “just to inflame the passions of
the jury . . . .” The prosecutor stated her reason for asking the question:
                Your Honor, I certainly don’t believe that it was prosecutorial misconduct.
       It’s certainly relevant to this matter. [The ex-boyfriend] did invite two girls over
       there. There has been a lot of discussion about those two girls. I wanted to know
       why he would have invited those two girls over there when his ex-girlfriend [(the
       victim)] was there. The testimony has been she was trying to get back into a
       relationship with [the ex-boyfriend]. There has been some conflicting testimony,
       I believe, as to who was trying to get back into the relationship, but I certainly
       think that it’s proper inquiry to determine what the motive was for having those
       two girls to come over.
The district court stated that it interpreted the question as asking for the ex-boyfriend’s motive
and did not construe it as amounting to prosecutorial misconduct. Thus, the district court denied




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the motion for mistrial. 2 Ward asserts that both incidents at trial amounted to prosecutorial
misconduct. 3
       Although 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. When there has been a contemporaneous
objection we determine factually if there was prosecutorial misconduct, then we determine
whether the error was harmless. Id.; State v. Hodges, 105 Idaho 588, 592, 671 P.2d 1051, 1055
(1983); State v. Phillips, 144 Idaho 82, 88, 156 P.3d 583, 589 (Ct. App. 2007). A conviction will
not be set aside for small errors or defects that have little, if any, likelihood of having changed
the results of the trial. State v. Pecor, 132 Idaho 359, 367-68, 972 P.2d 737, 745-46 (Ct. App.
1998). Where prosecutorial misconduct is shown, the test for harmless error is whether the
appellate court can conclude, beyond a reasonable doubt, that the result of the trial would not
have been different absent the misconduct. Id. at 368, 972 P.2d at 746.
       We are persuaded that the prosecutor’s question did not amount to prosecutorial
misconduct. In context, the question at issue seeks to understand the ex-boyfriend’s motive for
inviting the young women over to Ward’s house. There had already been testimony from the
victim and from the ex-boyfriend during direct examination about the young women invited over
to Ward’s house. On cross-examination, the prosecutor questioned the ex-boyfriend concerning
his relationship with Ward. Further, the prosecutor asked the ex-boyfriend whether he knew if
Ward was married and then whether he knew if Ward had a girlfriend living at Ward’s home.
Following this line of questioning, the prosecutor posited the question at issue. Although the

2
        Although there was a motion for mistrial, Ward’s arguments on appeal only assert that
there was prosecutorial misconduct and not that the district court erred by denying the motion for
mistrial. In any event, the analysis of a denied motion for mistrial on appeal also reduces down
to whether the error prompting the motion for mistrial was, indeed, harmless. See State v.
Urquhart, 105 Idaho 92, 95, 665 P.3d 1102, 1105 (Ct. App. 1983).
3
        Ward implicitly asserts that defense counsel’s actions--calling for a sidebar and
interjecting--amounted to objections. The State does not challenge this assertion, although it
focuses on the motion for mistrial. We assume, without deciding, that Ward’s defense counsel’s
actions amounted to objections because we would reach the same conclusion even if we applied
the State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), fundamental-error analysis.

                                                7
relevance of the question is debatable, the question did not rise to prosecutorial misconduct. The
question was not inflammatory and, contrary to Ward’s argument, does not suggest the boyfriend
was “pimping” for Ward.
       As to the other assertion of prosecutorial misconduct concerning the alleged remark and
noise, there is no evidence in the record that the prosecutor committed misconduct, and the
district court judge witnessed no questionable noise or remark.        Accordingly, there is no
evidence that would support a finding of prosecutorial misconduct for the second incident.
C.     Chain of Custody
       Ward additionally asserts that the district court erred by admitting certain evidence
without a proper chain of custody having been established or shown. At trial, the State produced
test results of evidence that was collected at the hospital, transferred from a nurse to a law
enforcement officer and then to a local evidence technician, before being sent to the Idaho State
Police Forensic Services laboratory. The law enforcement officer, who collected the sealed
evidence box from the nurse and transferred the evidence box to the local evidence technician,
did not testify. Defense counsel objected, contending that the State had not laid a proper
foundation because it had not established a chain of custody. The district court denied the
motion based on its determination that defense counsel invited the error by moving to exclude
the law enforcement officer from testifying and the court’s determination that there was
sufficient foundation from the testimony of the nurse and the local evidence technician.
       The decision whether to admit evidence at trial is generally within the province of the
trial court. A trial court’s determination that evidence is supported by a proper foundation is
reviewed for an abuse of discretion. State v. Gilpin, 132 Idaho 643, 646, 977 P.2d 905, 908 (Ct.
App. 1999). Therefore, a trial court’s determination as to the admission of evidence at trial will
only be reversed where there has been an abuse of that discretion. State v. Zimmerman, 121
Idaho 971, 973-74, 829 P.2d 861, 863-64 (1992). When a trial court’s discretionary decision is
reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether
the lower court correctly perceived the issue as one of discretion; (2) whether the lower court
acted within the boundaries of such discretion and consistently with any legal standards
applicable to the specific choices before it; and (3) whether the lower court reached its decision
by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).




                                                8
       On appeal, the State, citing Dawson v. Cheyovich Family Trust, 149 Idaho 375, 382-83,
234 P.3d 699, 706-07 (2010), first avers that we should decline to consider this argument
because of the lack of authority in Ward’s opening brief. Although the argument in Ward’s
opening brief is concise, it is not “too indefinite to be heard by the Court.” Id. at 383, 234 P.3d
at 707 (quoting Bach v. Bagley, 148 Idaho 784, 790, 299 P.3d 1146, 1152 (2010)). Therefore,
we address the merits of the argument.
       The State argues that the law enforcement officer’s testimony was not necessary to
establish foundation because there was no evidence of tampering. We agree. Idaho Rule of
Evidence 901(a) generally provides that the required authentication of evidence “is satisfied by
evidence sufficient to support a finding that the matter in question is what its proponent claims.”
I.R.E. 901(a). “Often, the party offering evidence establishes the chain of custody in order to
create a presumption that it was not materially altered during the chain of custody.” Gilpin, 132
Idaho at 647, 977 P.2d at 909. Once the proponent of the evidence has established a chain of
custody, “[t]he burden then shifts to the defendant to overcome the presumption, and the
defendant must make some showing that the evidence was tampered or meddled with.” Id. “The
trial court must then determine that the proffered evidence has not been changed in any material
respect.” Id.
       The Idaho Supreme Court has upheld the admission of evidence, even though a witness
involved in the chain of custody did not testify at trial. In a case analogous to this one, State v.
Coburn, 82 Idaho 437, 354 P.2d 751 (1960), a doctor drew a blood sample and gave the blood
sample to a nurse. The nurse sealed and marked the blood sample before giving it to the sheriff.
The sheriff then delivered the blood sample to a hospital nurse, who indicated that she would put
the blood sample in the refrigerator for the evidence technician.        The evidence technician
subsequently tested the blood sample. Coburn challenged the admission of evidence of the blood
test, arguing that the evidence “was not properly identified nor was any attempt made by
respondent to prove the blood tested by the [technician] was the blood of appellant.” Id. at 447,
354 P.2d at 757. Although the hospital nurse involved in the chain of custody did not testify, the
Court stated that “the circumstances sufficiently disclose the identification of the samples tested
as being those drawn from appellant by [the doctor]. Nor is there any evidence which would cast
the slightest inference that any irregularity occurred after the samples were delivered to the
hospital by [the sheriff].” Id. Thus, the Court determined the evidence was properly admitted.


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       Here, the nurse who obtained the evidence from the victim testified that she sealed the
box. Although the law enforcement officer who obtained the evidence from the nurse and
transported it to the evidence technician did not testify, the evidence technician did testify. He
stated that the seals were intact when he received the evidence, further stating that “the chain of
custody and the seal has to be on there before I’ll even accept it into evidence so I always
check.” There was no testimony that the evidence box was tampered with. Rather, there was
sufficient testimony for the district court to find that the evidence collected at the hospital was
the same evidence received by the local evidence technician and then subsequently tested.
Accordingly, we cannot say that the district court abused its discretion by admitting the evidence,
even though one law enforcement officer in the chain of custody did not testify.
                                               III.
                                           CONCLUSION
       As to the first issue of whether the prosecutor’s use of Ward’s statements made during
the guilty plea proceeding to impeach Ward at trial, after his plea was withdrawn, violated
Ward’s constitutional rights, we conclude that Ward has not sustained his Perry burden.
Assuming without deciding that Ward demonstrated that one of his unwaived constitutional
rights was plainly violated, Ward has not shown that there is a reasonable possibility that the
error affected the outcome of the trial.
       As to the issue of prosecutorial misconduct, we are persuaded that the first instance did
not amount to prosecutorial misconduct. As for the second instance of alleged prosecutorial
misconduct, there is no evidence that would support a finding of prosecutorial misconduct for the
second incident.
       As to the chain-of-custody issue, we cannot say that the district court abused its
discretion by admitting the evidence, even though one law enforcement officer in the chain of
custody did not testify. There was sufficient testimony for the district court to find that the
evidence collected at the hospital was the same evidence received by the local evidence
technician and then subsequently tested.
       Because we identified one potential error, we need not address Ward’s cumulative error
argument. For these reasons, Ward’s judgment of conviction is affirmed.
       Judge LANSING and Judge GRATTON CONCUR.




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