               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42199

STATE OF IDAHO,                                  )    2016 Unpublished Opinion No. 429
                                                 )
       Plaintiff-Respondent,                     )    Filed: March 11, 2016
                                                 )
v.                                               )    Stephen W. Kenyon, Clerk
                                                 )
ANTONIO RUIZ, JR.,                               )    THIS IS AN UNPUBLISHED
                                                 )    OPINION AND SHALL NOT
       Defendant-Appellant.                      )    BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. George A. Southworth, District Judge.

       Judgment of conviction for felony injury to a child, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Antonio Ruiz, Jr. appeals from the district court’s judgment of conviction for felony
injury to a child. For the reasons set forth below, we affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Ruiz was indicted for felony injury to a child in violation of Idaho Code § 18-1501(1).
The State accused Ruiz of punching the victim, J.A., age six, in the head and stomach causing
severe bruising, and pulling J.A. off the floor by his ears causing the skin on J.A.’s ears to
recede. Ruiz moved to dismiss the indictment because it failed to properly set forth the essential
elements of the offense. The district court denied the motion.
       During the discovery phase, the State disclosed two experts--Ms. Guzman and
Dr. McPherson. Dr. McPherson did not generate a report of his own; rather, he relied on the


                                                 1
reports prepared by his staff, including Guzman’s report. Guzman testified as an expert in the
State’s case-in-chief, and the defense also called an expert. The State then called Dr. McPherson
as a rebuttal witness to rebut the defense’s expert testimony. Ruiz objected to the use of
Dr. McPherson as an expert witness, claiming the State’s discovery disclosures were insufficient.
The district court disagreed and Dr. McPherson provided rebuttal expert testimony. After trial,
Ruiz filed a motion for a new trial and asserted that the use of Dr. McPherson as a rebuttal
witness was improper. The district court denied the motion.
       Ruiz was convicted of injury to a child, a felony in violation of I.C. § 18-1501(1). Ruiz
timely appealed.
                                                II.
                                           ANALYSIS
       On appeal, Ruiz raises six arguments.          First, the district court erred by allowing
Dr. McPherson to testify as a rebuttal witness because the State failed to comply with the
discovery rules. Second, the district court erred by rejecting his motion to dismiss the indictment
even though it omitted an essential element of the crime. Third, the district court erroneously
allowed the State to admit evidence of prior bad acts without timely notice. Fourth, the district
court created fundamental error by improperly remarking on the weight of the State’s evidence.
Fifth, the State committed fundamental error during voir dire and closing by misstating the law
and lowering the State’s burden of proof. And sixth, the alleged errors together constitute
cumulative error. We will address each of Ruiz’s claims in turn.
A.     Admissibility of Expert Rebuttal Testimony
       The district court denied Ruiz’s motion for a new trial and found that the State
sufficiently disclosed its expert witnesses. A decision on a motion for a new trial is reviewed
under an abuse of discretion standard. State v. Egersdorf, 126 Idaho 684, 687, 889 P.2d 118, 121
(Ct. App. 1995). 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). Whether a trial court properly applied



                                                2
a statutory provision to the facts of a particular case is a question of law over which we exercise
free review. State v. Horn, 124 Idaho 849, 850, 865 P.2d 176, 177 (Ct. App. 1993).
       There is no argument that the district court failed to perceive the issue as one of
discretion. Rather, Ruiz argues that his right to due process was violated because the district
court allowed expert rebuttal testimony through an improper interpretation and application of the
discovery rules. This Court will uphold a trial court’s “decision regarding discovery violations if
it is supported by substantial and competent evidence in the record.” State v. Koch, 157 Idaho
89, 93, 334 P.3d 280, 284 (2014) (citing State v. Stradley, 127 Idaho 203, 207-208, 899 P.2d
416, 420-421 (1995)). In addition, where a defendant claims that his or her right to due process
was violated, we defer to the trial court’s findings of fact, if supported by substantial evidence.
State v. Smith, 135 Idaho 712, 720, 23 P.3d 786, 794 (Ct. App. 2001). However, we freely
review the application of constitutional principles to those facts found. Id.
       The district court reached its decision by an exercise of reason and acted within the
boundaries of its discretion and consistently with the relevant legal standards. Upon request
from the defense, the State must disclose: (1) the witness’s opinion; (2) the facts and data
forming the basis of that opinion; and (3) the qualifications of the witness. Idaho Criminal
Rule 16(b)(7); State v. Morin, 158 Idaho 622, 625, 349 P.3d 1213, 1216 (Ct. App. 2015). The
State’s summary disclosure1 provided that Dr. McPherson would rely on the report generated by
his staff at CARES. The report provided detailed information about the facts derived from the
CARES examination and opinions drawn from the examination and information obtained. The
State also disclosed Dr. McPherson’s curriculum vitae. The disclosures gave Ruiz notice that




1
       Excerpt of the State’s summary disclosure:
       Dr. McPherson and Ms. Guzman . . . will give an expert opinion regarding child
       abuse, accidental versus non-accidental injuries and that the injuries sustained by
       J.A. medically constituted great bodily injury within the parameters as established
       in Judge Southworth’s Court order. They will testify as to their evaluation of the
       victim’s injuries observed and the extent of the victim’s injuries. Dr. McPherson
       did not generate a report. He relied on the reports prepared by his staff at CARES
       . . . . These reports were previously disclosed.


                                                 3
Dr. McPherson would testify generally about child abuse and specifically about the significance
of J.A.’s injuries as reflected in the disclosed CARES report.2
         Ruiz’s own expert disclosure was based upon review of the CARES report. Ruiz’s
expert, however, also testified to facts and theories that were not included in his pretrial
disclosure, and thus were independently open to rebuttal.          This Court has held that “the
prosecutor’s duty to disclose witnesses does not extend to persons called for rebuttal.” State v.
Lopez, 107 Idaho 726, 739, 692 P.2d 370, 383 (Ct. App. 1984). Similarly, I.C.R. 16(b)(7) states
that “this subsection does not require disclosure of expert witnesses . . . intended only to rebut
evidence or theories that have not been disclosed under this Rule prior to trial.” Thus, disclosure
is not required when the expert’s testimony is rebuttal to testimony that was not disclosed by
opposing counsel in discovery. See id. The State was also entitled to rebut the undisclosed
assertions without pretrial disclosure of such expert witness’s rebuttal testimony.
       Ruiz asserts that Dr. McPherson should have been required to prepare his own report,
rather than referencing the facts and opinions in the CARES report. While we generally agree
that specific additional opinions from the report should be disclosed, Ruiz has identified no
testimony of Dr. McPherson as to any opinions that were different from or not adequately
summarized either in the CARES report or the State’s disclosures.3 The district court did not

2
        The district court had previously ordered that the experts could not testify more
specifically that the extent of J.A’s injuries amounted to great bodily injury, as that determination
was within the province of the jury.
3
        Ruiz compares the Supreme Court’s determination that an expert disclosure was adequate
in State v. Koch, 157 Idaho 89, 334 P.3d 280 (2014) with this Court’s determination in State v.
Morin, 158 Idaho 622, 349 P.3d 1213 (Ct. App. 2015) that the expert disclosure was inadequate,
and asks us to hold that the instant case is more akin to Morin. However, we noted in Morin,
that:
        So far as disclosed by the Supreme Court’s opinion, the defendant did not argue
        that Yeager testified to any other significant opinions that were not set forth in the
        discovery responses or other scientific or technical information for which
        disclosure was required by Rule 16(b)(7). Thus, in Koch, the State’s discovery
        response actually did provide a summary of the testimony for which disclosure
        was required.
                 Here, by contrast, the State’s discovery response divulged no component
        of Dr. Dawson’s testimony, and certainly not the opinion to which he ultimately
        testified, that Morin “was impaired and was unsafe to operate a motor vehicle.”

Morin, 158 Idaho at 626-27, 349 P.3d 1217-18.
                                                 4
error in determining that the State’s disclosures met the requirements of I.C.R. 16(b)(7) and did
not violate Ruiz’s right to due process.4
B.     Indictment Conferred Jurisdiction
       Ruiz asserts that the indictment failed to confer jurisdiction on the district court because it
omitted an essential element of the crime charged. The indictment omitted the term willfully in
regard to the injury to child charge.5 Whether a court lacks jurisdiction is a question of law, over
which this Court exercises free review. State v. Jones, 140 Idaho 755, 757, 101 P.3d 699, 701
(2004). The information, indictment, or complaint alleging an offense was committed within the
state of Idaho confers subject matter jurisdiction upon the court. State v. Rogers, 140 Idaho 223,
228, 91 P.3d 1127, 1132 (2004). An invalid charging document does not confer subject matter
jurisdiction. State v. Lute, 150 Idaho 837, 840-41, 252 P.3d 1255, 1258-59 (2011). Whether a
charging document conforms to the requirements of law and is legally sufficient is also a
question of law subject to free review. Jones, 140 Idaho at 757, 101 P.3d at 701.
       If an alleged deficiency is raised by a defendant before trial or entry of a guilty plea, the
charging document must be found to set forth all facts essential to establish the charged offense
to survive the challenge. State v. Halbesleben, 139 Idaho 165, 168, 75 P.3d 219, 222 (Ct. App.
2003). When the charging document’s jurisdictional sufficiency is challenged after trial, it will

4
        Ruiz argues that his due process rights were violated by inadequate notice. That is, under
Wardius v. Oregon, 412 U.S. 470, 467 (1973), because the State required Ruiz to disclose his
expert opinions pretrial, due process required the State to similarly disclose its expert opinions
pretrial. Having concluded that the State did adequately disclose its expert opinions pretrial, no
due process violation has been shown.
5
       Idaho Code Section 18-1501, Injury to Children:
               (1)      Any person who, under circumstances or conditions likely to
       produce great bodily harm or death, willfully causes or permits any child to
       suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having
       the care or custody of any child, willfully causes or permits the person or health of
       such child to be injured, or willfully causes or permits such child to be placed in
       such situation that its person or health is endangered, is punishable by
       imprisonment in the county jail not exceeding one (1) year, or in the state prison
       for not less than one (1) year nor more than ten (10) years.
               ....
               (5)      As used in this section, “willfully” means acting or failing to act
       where a reasonable person would know the act or failure to act is likely to result
       in injury or harm or is likely to endanger the person, health, safety or well-being
       of the child.
                                                 5
be upheld unless it is so defective that it does not, by any fair or reasonable construction, charge
the offense for which the defendant was convicted. Jones, 140 Idaho at 759, 101 P.3d at 703;
State v. Robran, 119 Idaho 285, 287, 805 P.2d 491, 493 (Ct. App. 1991). A reviewing court has
considerable leeway to imply the necessary allegations from the language of the charging
document. Jones, 140 Idaho at 759, 101 P.3d at 703; Robran, 119 Idaho at 287, 805 P.2d at 493.
In short, when considering a post-trial challenge to the jurisdictional sufficiency of a charging
document, a reviewing court need only determine that, at a minimum, the document contains a
statement of the territorial jurisdiction of the court below and a citation to the applicable section
of the Idaho Code. State v. Quintero, 141 Idaho 619, 622, 115 P.3d 710, 713 (2005).
       In Jones, the charging document failed, as here, to allege that a felony injury to child
defendant committed the act in question “willfully.” Jones, 140 Idaho at 758-759, 101 P.3d at
702-703. Jones did not challenge the charging document on that basis prior to trial and so the
Supreme Court applied the liberal standard.          Since the charging document referenced the
applicable code section, the element of willfulness was adequately conveyed. Id. at 759, 101
P.3d at 703.
       Ruiz challenged the indictment prior to trial, but he did not challenge it in the same way
that he challenges jurisdiction on appeal. Ruiz moved to dismiss the indictment because it “does
not charge the commission of any crime against the laws of the State and fails to set forth
properly and with the requisite definiteness and particularity of all of the essential elements of
the crimes attempted to be charged.” Ruiz never explicitly argued that the indictment omitted
“willfully” or that such an omission was jurisdictionally defective. Rather, Ruiz argued that the
enhancement he was initially charged with was an essential element of the felony injury to child
charge, and the facts in the indictment did not sufficiently specify his wrongful actions.
Generally, an objection on one ground is not sufficient to preserve an appellate claim on a
different ground. State v. Vondenkamp, 141 Idaho 878, 885, 119 P.3d 653, 660 (Ct. App. 2005).
Thus, the jurisdictional challenge on appeal was brought after trial and will be upheld unless it is
so defective that it does not charge the offense for which Ruiz was convicted.
       The indictment contained sufficient information to confer jurisdiction to the district
court.6 A charging document that is not challenged prior to the entry of judgment will be upheld

6
       The indictment charged:


                                                 6
where the charging document cited the applicable Idaho Code section and a statement of the
lower court’s territorial jurisdiction. Quintero, 141 Idaho at 622, 115 P.3d at 713. Ruiz’s
indictment specified that he was accused of “INJURY TO CHILDREN, a felony, Idaho Code
Section 18-1501(1)” and included a statement of the court’s territorial jurisdiction: “on or about
the 11th day of August, 2013, in the County of Canyon, State of Idaho.” Thus, under the correct
standard of review, the indictment contained sufficient information to confer jurisdiction on the
district court.7
C.      Admission of Prior Acts Evidence
        Ruiz asserts that the district court erred by finding that the State gave timely notice under
the Idaho Rules of Evidence 404(b) of its intent to use evidence of Ruiz’s prior acts. The day
before trial the State submitted notice of its intent to present evidence of Ruiz’s prior acts. The
State’s notice indicated that it intended to present evidence of prior acts of physical violence
against the victim by Ruiz as previously disclosed in the police reports.            Ruiz objected,
contending that the notice was not filed reasonably in advance of trial and that the State failed to
specify the acts it intended to present. The district court addressed the State’s motion on the
morning of trial and found that the State’s notice was timely, but prohibited the State from
referencing the prior acts unless the court made a subsequent ruling at trial to admit the evidence.
        Idaho Rules of Evidence 404(b) provides:
               Evidence of other crimes, wrongs, or acts is not admissible to prove the
        character of a person in order to show that the person acted in conformity

        ANTONIO RUIZ JR. is accused by the Grand Jury of Canyon County of the
        crime of INJURY TO CHILDREN, a felony, Idaho Code Section 18-1501(1),
        committed as follows:
                               COUNT I - PART I
                That the Defendant, ANTONIO RUIZ JR., on or about the 11th day of
        August, 2013, in the County of Canyon, State of Idaho, under circumstances or
        conditions likely to produce great bodily harm or death to a child under eighteen
        years of age, to-wit: [J.A.] of the age of six (6), did inflict unjustifiable physical
        pain or mental suffering by striking him and/or pulling his ears.
7
        Ruiz also argues on appeal that the error occurred in the grand jury proceedings.
Consequently, he contends that under State v. Edmonson, 113 Idaho 230, 239, 743 P.2d 459, 468
(1987), proper review is based upon the standard that error in grand jury proceedings does not
constitute grounds for attacking the validity of an indictment, absent a showing of prejudice. He
claims that he was in fact prejudiced. First, Ruiz did not make this argument below. Second,
Edmonson does not apply. Third, Ruiz has shown no prejudice.
                                                  7
         therewith. It may, however, be admissible for other purposes, such as proof of
         motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
         mistake or accident, provided that the prosecution in a criminal case shall file and
         serve notice reasonably in advance of trial, or during trial if the court excuses
         pretrial notice on good cause shown, of the general nature of any such evidence it
         intends to introduce at trial.
This rule prohibits introduction of evidence of acts other than the crime for which a defendant is
charged if its probative value is entirely dependent upon its tendency to demonstrate the
defendant’s propensity to engage in such behavior. State v. Grist, 147 Idaho 49, 54, 205 P.3d
1185, 1190 (2009). See also State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct. App.
2002). Of course, evidence of another crime, wrong, or act may implicate a person’s character
while also being relevant and admissible for some permissible purpose, such as those listed in the
rule. See State v. Pepcorn, 152 Idaho 678, 688-89, 273 P.3d 1271, 1281-82 (2012).
         When determining the admissibility of evidence to which a Rule 404(b) objection has
been made, the trial court must first determine whether there is sufficient evidence of the other
acts that a reasonable jury could find the conduct actually occurred. If so, then the court must
consider: (1) whether the other acts are relevant to a materially disputed issue concerning the
crime charged, other than propensity; and (2) whether the probative value is substantially
outweighed by the danger of unfair prejudice. Grist, 147 Idaho at 52, 205 P.3d at 1188; State v.
Parmer, 147 Idaho 210, 214, 207 P.3d 186, 190 (Ct. App. 2009).
         The State claims that the issue of the timeliness of the Rule 404(b) notice is moot. We
agree.    An issue becomes moot if it does not present a real and substantial controversy that is
capable of being concluded by judicial relief. State v. Barclay, 149 Idaho 6, 8, 232 P.3d 327,
329 (2010). The mootness doctrine precludes review when “the issues presented are no longer
live or the parties lack a legally cognizable interest in the outcome.” Idaho Schools for Equal
Educ. Opp. v. Idaho State Bd. of Educ., 128 Idaho 276, 281, 912 P.2d 644, 649 (1996) (quoting
Bradshaw v. State, 120 Idaho 429, 432, 816 P.2d 986, 989 (1991)). Although the district court
ruled that the State’s notice was timely, it deferred its ruling on whether or not the evidence was
admissible under a 404(b) exception until the evidence was to be introduced. Ruiz complains
that the lateness of the notice caused the court to defer ruling and necessitated several sidebars
during trial to discuss evidence the State wanted to introduce without running afoul of the Rule
or the court’s rulings. Ruiz points to only three instances involving evidence of (1) prior
discipline of the victim to impeach the victim’s mother, (2) prior discipline to refresh the

                                                  8
victim’s recollection, and (3) the detective’s testimony that Ruiz told her that in a general sense
pulling the victim’s ears was his preferred form of discipline. However, Ruiz did not object to
these references on Rule 404(b) grounds or that they violated any ruling of the court. Thus, the
district court never ruled on the admissibility of the evidence pursuant to 404(b) because no
404(b) objection was made. Further, there is no indication that the evidence was admitted
pursuant to Rule 404(b), as opposed to some other evidentiary basis.          Thus, there was no
prohibited 404(b) evidence admitted over defense counsel’s objection, so the court’s ruling about
the timeliness of the State’s notice pursuant to 404(b) is moot because there is no indication that
evidence was ever admitted under 404(b).8
D.     District Court’s Comment on the Weight of the State’s Evidence
       Ruiz asserts that the district court improperly remarked on the weight of the State’s
evidence during trial.   Specifically, while cross-examining J.A.’s mother, the State elicited
testimony about the pain J.A. experienced, to which Ruiz objected. The court commented “I’m
going to allow it. I’m sure that [the prosecutor] will describe everything [J.A.] said. I think from
everything it’s going to be quite obvious.” Comments made by the court during trial may
constitute reversible error if they comment on the weight of the evidence, or indicate an opinion
of the court as to the guilt or innocence of the defendant. State v. White, 97 Idaho 708, 711-12,
551 P.2d 1344, 1347-48 (1976). Ruiz failed to object to the comment when it was made and
now contends that the comment was improper and violated his right to a fair trial.
       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

8
        Ruiz also argues that the prosecution’s sidebars with the court shows an implicit finding
that the evidence was admitted under 404(b). Ruiz provides no evidence to support his argument
because the trial transcript reflects that the evidence in question was admitted for other purposes
and was never admitted pursuant to 404(b). In addition, Ruiz himself testified to the prior acts,
which opened the door for the prosecutor to use the propensity evidence in closing. For all these
reasons, even if the court had erred in determining the notice was timely, the error would be
harmless.


                                                 9
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.
       The record reflects the relevant exchange:
       PROSECUTOR:                    When [J.A.] was having his ears pulled, was he
                                      crying?
       WITNESS:                       Yes.
       PROSECUTOR:                    It was extremely painful for him; wasn’t it?
       WITNESS:                       Yes.
       DEFENSE COUNSEL:               I’m going to object. It calls for a conclusion from
                                      this --
       PROSECUTOR:                    Judge, I’ll lay more foundation.
       DEFENSE COUNSEL:               --of a nonexpert witness.
       COURT:                         I’m going to allow it. I’m sure that [the prosecutor]
                                      will describe everything [J.A.] said. I think from
                                      everything it’s going to be quite obvious.
       PROSECUTOR:                    Ms. Alfaro, you’ve seen your son in pain before;
                                      haven’t you?
       WITNESS:                       Yes.
       PROSECUTOR:                    He’s been hurt before; right?
       WITNESS:                       Sick. When he’s sick, yes.
       PROSECUTOR:                    Okay. Gotten injured, seen when he gets an owie?
       WITNESS:                       Um-hmm.
       PROSECUTOR:                    Seen him cry from an owie?
       WITNESS:                       Yes.
       PROSECUTOR:                    When he was having his ears pulled by the
                                      defendant, that was a considerable amount of pain
                                      he was expressing to you, wasn’t it?
       WITNESS:                       Yes.
Ruiz has failed to demonstrate any error, let alone constitutional error, necessary to satisfy the
first prong of Perry. From the context of the entire exchange, when the court said that “it’s
going to be quite obvious,” the court was overruling Ruiz’s foundational objection, correctly as it
turns out, expecting testimony satisfying the foundational requirements. The court was not
commenting on the strength of the State’s case.
       Ruiz similarly fails to meet the second prong of the Perry test because, if at worst the
statement is ambiguous, it is then not clear from the face of the record that the trial court

                                                  10
improperly commented on the weight of the State’s evidence as opposed to anticipated
foundational testimony. We will not assume the jury took the most damaging possible inference
from an ambiguous comment. The trial court did not commit fundamental error by commenting
on the weight of the State’s evidence at trial.
E.     Prosecutorial Misconduct
       Ruiz asserts that the prosecutor committed fundamental error by misstating the law
during voir dire and closing. While our system of criminal justice is adversarial in nature, and
the prosecutor is expected to be diligent and leave no stone unturned, he or she is nevertheless
expected and required to be fair. Field, 144 Idaho at 571, 165 P.3d at 285. 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. Ruiz made no contemporaneous objection to the
prosecutor’s voir dire questioning or closing argument at trial and thus must establish
fundamental error.
       1.      Voir dire
       Ruiz contends that the prosecutor misrepresented the State’s burden of proof during voir
dire and persuaded an eventual juror that an incorrect burden standard should be followed.
Specifically, he argues that the State informed the venire that the State was only required to
prove that Ruiz intended the alleged physical acts that violate I.C. § 18-1501(1). The following
exchange occurred:
       PROSECUTOR:                     Do you think that the criminal courts should get
                                       involved in situations of excessive force during
                                       discipline?
       PROSPECTIVE JUROR:              Yes, I think so.
       PROSECUTOR:                     Is there anyone that thinks that the criminal courts
                                       should not get involved? Juror No. 390, do you
                                       understand that the State doesn’t have to prove why
                                       someone hit a child, only that they did?
       PROSPECTIVE JUROR:              Yes.
       PROSECUTOR:                     Are you okay with that?
       PROSPECTIVE JUROR:              Yes.
       PROSECUTOR:                     You know it’s human nature to always want to
                                       know things; right? We always want to know
                                       different parts. That’s just how we are.
       PROSPECTIVE JUROR:              Right.
       PROSECUTOR:                     Can you live with it, though, if that’s all--if you
                                       don’t know why, just that it happened?


                                                  11
       PROSPECTIVE JUROR:              No. I don’t think I could. I’d have to know why,
                                       what led up to it or--yes.
       PROSECUTOR:                     Okay. Now, if the State talks to you about and
                                       presents evidence about the facts around it but not
                                       why there was a decision to actually hit the child, is
                                       that going to be enough for you?
       PROSPECTIVE JUROR:              Well, the fact that it was done, if you could prove
                                       that it was done, then that would be enough.
       PROSECUTOR:                     Okay.
       PROSPECTIVE JUROR:              And that the person did it.
       PROSEUCTOR:                     Okay. So if the State proves the case, even if there’s
                                       questions in your mind, you’re okay with that?
       PROSPECTIVE JUROR:              Yeah.
Ruiz has failed to demonstrate any error let alone constitutional error necessary to satisfy the first
prong of Perry. From the context of the entire exchange, the prosecutor was determining if any
of the prospective jurors would require the State to prove elements beyond what the jury
instructions would require, such as a motive for child abuse. Generally, great latitude is afforded
both parties in questioning during voir dire. State v. Dunlap, 155 Idaho 345, 369, 313 P.3d 1, 25
(2013); State v. Lewis, 126 Idaho 77, 81, 878 P.2d 776, 780 (1994).
       Ruiz similarly fails to meet the second prong of the Perry test because at worst the
statements are ambiguous.      Therefore, it is not clear from the face of the record that the
prosecutor’s statements reflected an incorrect burden on the State or were directed at negating
any need to prove motive. The prosecutor repeatedly indicated the State did not need to prove
“why” the event occurred, not that the State did not need to prove that the act was done
“willfully.” We will not assume the jury took the most damaging possible inference from
prosecutor’s statements. The prosecutor did not commit fundamental error misrepresenting the
State’s burden of proof.
       2.      Closing argument
       Ruiz asserts that the prosecutor committed misconduct during closing arguments by
misstating the law and lowering the State’s burden of proof. 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

                                                 12
standpoints, the evidence and the inferences to be drawn therefrom. State v. Sheahan, 139 Idaho
267, 280, 77 P.3d 956, 969 (2003). However, a prosecutor may not misstate the law during
closing arguments. Phillips, 144 Idaho at 86, 156 P.3d at 587.
       Ruiz argues that the prosecutor wrongfully stated in closing that the State only had to
prove that Ruiz intended to commit the act itself, which is contrary to the statutory definition of
the term “willfully,” in this context. The prosecutor stated:
               We’re not here today to tell you that Mr. Ruiz is a bad father, but the way
       that he treated [J.A.] was criminal. The abuse he inflicted on [J.A.] was criminal.
       This wasn’t discipline. This isn’t a mistake or an accident gone too far. This was
       an intentional act. And he may not have intended for his son to be injured like
       that, but ladies and gentlemen, that is not for you to decide. Because all he had to
       do was intend the act itself.
               And as he sat there that day in the kitchen and he grabbed [J.A.’s] ears and
       he screamed, “Here’s your little liar,” and as Idalia was trying to pull him off of
       [J.A.] and he’s pushing her away and continuing to pull on [J.A.’s] ears, lifting
       him off the ground, he intended that act. As you heard from [J.A.] about how he
       went out to pick up sticks afterwards, his father was angry at him, and he choked
       him, and he punched him in the stomach, fell on the goatheads. His shortness of
       breath, he could hardly breathe. He couldn’t play. The defendant intended that act.
The prosecutor also stated in closing, “The defense will also tell you he didn’t mean to hurt his
child. Well, ladies and gentlemen, again, this doesn’t say you have to intend the injury. You
have to intend the act. And he told you he intended the act on the ears.” For the State to show
that a defendant acted willfully pursuant to I.C. § 18-1501(1), it must prove that the defendant
“act[ed] or fail[ed] to act where a reasonable person would know the act or failure to act [was]
likely to result in injury or harm or [was] likely to endanger the person, health, safety or well-
being of a child.” I.C. § 18-1501(5). This Court has held that “the fact that a child is ultimately
injured or endangered is, by itself, insufficient to convict” under I.C. § 18-1501(1). State v.
Gonzales, 158 Idaho 112, 118, 343 P.3d 1119, 1125 (Ct. App. 2015). Thus, the State must prove
more than the simple intent to act. The State argues that the prosecutor’s intent and meaning was
that the State need not prove that Ruiz intended the particular injury that occurred. While that
may have been the intent, the repeated statement that Ruiz “intended the act” effectively
misstated the burden.
       Ruiz fails, however, to meet the third prong of the Perry test because he has not
demonstrated the requisite prejudice.       The State’s evidence of guilt was strong.          More
importantly, in this context, the district court instructed the jury that it must follow the rules as


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instructed by the court and that: “If anyone states a rule of law different from any I tell you, it is
my instruction that you must follow.” The district court properly instructed the jury as to the
elements of the charge and the State’s burden of proof. We presume that the jury followed the
jury instructions given by the district court in reaching its verdict. State v. Carson, 151 Idaho
713, 718, 264 P.3d 54, 59 (2011). There is no indication that the jury did not follow the district
court’s instructions.    Ruiz has not demonstrated fundamental error by the prosecutor
misrepresenting the State’s burden of proof.9
                                                 III.
                                          CONCLUSION
        The district court did not abuse its discretion by allowing expert rebuttal testimony, the
indictment was sufficient, and the timeliness of the Rule 404(b) notice is a moot issue.
Furthermore, there was no fundamental error caused by the court’s statement, the State’s voir
dire, or the State’s closing argument. Accordingly, we affirm Ruiz’s conviction for felony injury
to a child.
        Judge GUTIERREZ and Judge HUSKEY CONCUR.




9
        Analysis of Ruiz’s cumulative error claim is unnecessary because there was no error.
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