                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 45743

STATE OF IDAHO,                         )
                                        )
      Plaintiff-Respondent,             )
                                                              Boise, August 2018 Term
                                        )
v.                                      )
                                                              Filed: September 21, 2018
                                        )
JEFFREY LYNN ALWIN,                     )
                                                              Karel A. Lehrman, Clerk
                                        )
      Defendant-Appellant.              )
_______________________________________ )

       Appeal from the District Court of the First Judicial District of the State of Idaho,
       Kootenai County. Hon. Cynthia K.C. Meyer, District Judge.

       District court order denying motion for new trial, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Sally J.
       Cooley, Deputy Appellant Public Defender argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Mark
       W. Olson, Deputy Attorney General argued.
                                    _____________________

BURDICK, Chief Justice.
       Jeffrey Lynn Alwin appealed his judgment of conviction entered in the Kootenai County
district court. A jury found Alwin guilty of felony eluding a peace officer. Alwin moved for a
new trial, challenging the district court’s admission of a booking photograph at trial. Alwin
argued the booking photograph was evidence of prior criminal conduct in violation of Idaho Rule
of Evidence (“I.R.E.”) 404(b). The district court denied his motion. Alwin timely appealed and
contended the district court abused its discretion in denying his motion for a new trial because
the district court erroneously admitted I.R.E. 404(b) evidence over his objection when it admitted
the booking photograph at trial. Alwin also argued the State committed prosecutorial misconduct
during closing arguments. The Court of Appeals reversed, and the State filed a timely Petition
for Review. For reasons discussed below, we affirm the district court’s judgment.
                   I.    FACTUAL AND PROCEDURAL BACKGROUND
       On August 3, 2015, Officer Cody Cohen of the Coeur d’Alene Police Department was
clearing a traffic stop when he observed a black Mercedes-Benz drive past that was rapidly

                                                 1
accelerating. Officer Cohen returned to his patrol vehicle and followed the Mercedes. Officer
Cohen then initiated a traffic stop. The Mercedes pulled over and Officer Cohen approached the
driver’s window that was rolled about half-way down. Through this opening, Officer Cohen
observed the sole occupant of the vehicle. He described the occupant as a white male with brown
hair, about six feet in height with a muscular build. Officer Cohen also detected the odor of
alcohol and that the male was avoiding eye contact. When Officer Cohen requested the male’s
driver’s license, registration, and insurance information, the male responded with a slurred,
incoherent response. At that time, the male reached across the vehicle to the glove box, returned
his hand from the glove box empty, placed his hand on the shifter, and drove away. A multi-
officer pursuit ensued but was ultimately disengaged.
       Officer Cohen called and provided the license plate number to dispatch approximately
fifteen minutes after the vehicle fled the initial traffic stop. It was then discovered the vehicle
was registered to Jeffery Lynn Alwin. At that time, Officer Cohen pulled a photograph of Alwin
from the computer system. Officer Cohen confirmed the photograph of Alwin matched the male
he had stopped earlier. Based on this information, a warrant was issued for Alwin’s arrest. Alwin
voluntarily turned himself in.
       The main issue at trial revolved around Officer Cohen’s identification of Alwin. In
support of Officer Cohen’s testimony, the State offered as evidence the photo Officer Cohen
viewed the night of the traffic stop. Alwin objected under I.R.E. 404(b). No further explanation
accompanied the objection. The State responded, arguing the objection was improper because no
conduct was being alleged by the photo. The district court agreed, overruled the objection, and
the photo was admitted into evidence.
       The jury found Alwin guilty of felony eluding a peace officer. Alwin moved for a new
trial arguing that the district court “erred in deciding it was permissible to expose the jury to
[Alwin]’s prior booking photo.” The district court denied the motion. Alwin timely appealed and
alleged the district court erroneously admitted I.R.E. 404(b) evidence and the district court’s
denial of Alwin’s motion for a new trial was error. Alwin also alleged the State committed
prosecutorial misconduct during closing arguments. The Court of Appeals reversed the district
court’s judgment, and the State timely filed a Petition for Review.
                                  II.    ISSUES ON APPEAL



                                                2
     1. Whether the district court’s denial of Alwin’s motion for a new trial was an abuse of
        discretion.
     2. Whether the prosecutor committed misconduct during closing argument that amounted to
        fundamental error.
                              III. STANDARD OF REVIEW
        This Court reviews a district court’s denial of a motion for a new trial under an abuse of
discretion standard. State v. Lankford, 162 Idaho 477, 491, 399 P.3d 804, 818 (2017) (quoting
State v. Stevens, 146 Idaho 139, 144, 191 P.3d 217, 222 (2008)). Similarly, a district court’s
determination that evidence is admissible under I.R.E. 404(b) is reviewed for an abuse of
discretion. State v. Rawlings, 159 Idaho 498, 504, 363 P.3d 339, 345 (2015) (citing State v.
Pepcorn, 152 Idaho 678, 690–91, 273 P.3d 1271, 1283–84 (2012)). “To determine whether a
trial court has abused its discretion, this Court considers whether it correctly perceived the issue
as discretionary, whether it acted within the boundaries of its discretion and consistently with
applicable legal standards, and whether it reached its decision by an exercise of reason.” Id.
(quoting Reed v. Reed, 137 Idaho 53, 57, 44 P.3d 1108, 1112 (2002)).
        “Where prosecutorial misconduct was not objected to at trial, [this Court] may only order
a reversal when the defendant demonstrates that the violation in question qualifies as
fundamental error[.]” State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010). Showing
fundamental error requires the following:
        (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 (citation omitted). The burden of showing fundamental error is placed
on the defendant. Id. If the burden is satisfied, this Court must vacate and remand. Id. at 227, 245
P.3d at 979.

                                        IV.    ANALYSIS
A.      The district court did not abuse its discretion in denying Alwin’s motion for a new
        trial.
        At trial, a prior booking photo of Alwin was offered into evidence by the State.
According to Alwin, the booking photo displays Alwin standing, unsmilingly, in front of a blank


                                                 3
wall, dressed in yellow “jail garb,” and it is apparent Alwin has a black eye. The introduction of
the photo was accompanied by Officer Cohen’s testimony that he had viewed the photo from a
computer system in his patrol vehicle. When asked by the district court whether the defense had
any objections to the introduction of the booking photo, Alwin’s counsel simply stated: “[w]e
would object under 404(b).” The State responded: “[n]o, I don’t think it is 404(b) . . . [t]here is
no conduct being alleged.” The district court agreed with the State and admitted the booking
photo. Alwin moved for a new trial, pursuant to Idaho Criminal Rule 34, alleging the district
court erred in admitting the photo into evidence. The district court denied the motion, stating “if
the request had been made to redact the clothing from the photo, since there would be no harm in
doing that, I probably would have ordered it. . . . But I don’t think it’s required, and so I am
going to deny the motion.” On appeal, Alwin argues the motion for a new trial should have been
granted because the district court “committed an error of law in not realizing that the booking
photo was evidence of a prior bad act and, thus, failing to recognize that analysis under I.R.E.
404(b) was required.” For the reasons to be discussed, the district court did not erroneously
admit the booking photo because the photo did not constitute I.R.E. 404(b) evidence. Because
the photo did not constitute I.R.E. 404(b) evidence, the district court’s denial of Alwin’s motion
for a new trial was not erroneous.
         The Idaho Rules of Evidence applicable at the time of Alwin’s trial 1 provided that, “[a]ll
relevant evidence is admissible except as otherwise provided by these rules or by other rules
applicable in the courts of this state. Evidence which is not relevant is not admissible.” I.R.E.
402. Evidence is relevant if the evidence has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than [the
fact] would be without the evidence.” I.R.E. 401. However, “[e]vidence 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 therewith.” I.R.E. 404(b). But such evidence may be admissible for other
permitted purposes such as proving “motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident[.]” Id. (emphasis added). If propensity evidence is
offered for one of the above listed purposes, “the prosecution in a criminal case shall file and



1
  The Idaho Rules of Evidence were amended in March of 2018 and the amendments became effective July 1, 2018.
While the language differs slightly from the Rules in place at the time of Alwin’s trial, the content is substantially
the same.

                                                          4
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.” Id.
       Mugshots are generally inadmissible under I.R.E. 404(b) because mugshots are indicative
of a prior crime, wrong, or other bad act. See State v. Cunningham, 97 Idaho 650, 653, 551 P.2d
605, 608 (1976). Mugshots are indicative of a prior crime, wrong, or other bad act because
mugshots contain indicia typically associated with criminal activity. See id.; Barnes v. United
States, 365 F.2d 509, 510–11 (D.C. Cir. 1966), (noting “[t]he double-shot picture, with front and
profile shots alongside each other, is so familiar . . . that the inference that the person involved
has a criminal record, or has at least been in trouble with the police, is natural, perhaps
automatic.”); see also Eberhardt v. Bordenkircher, 605 F.2d 275, 280 (6th Cir. 1979) (“The use
of mugshots has been strongly condemned . . . as effectively eliminating the presumption of
innocence and replacing it with an unmistakable badge of criminality.”). Thus, mugshots that
display the typical indicia associated with criminal activity—height lines, front and side profiles,
and references to police departments—are inadmissible under I.R.E. 404(b). See Cunningham,
97 Idaho at 653, 551 P.2d at 608; see also United States v. McCoy, 848 F.2d 743, 745–46 (6th
Cir. 1988) (holding the district court erred in admitting mugshots that displayed defendant,
among others, standing in front of height lines holding a sign that referenced the local police
department).
       However, mugshots that have been trimmed to eliminate the indicia described above are
not indicative of criminal activity and thus, are not considered I.R.E. 404(b) evidence. See
Cunningham, 97 Idaho at 653, 551 P.2d at 608. This Court has stated: “[p]hotographs showing
the . . . appearance of a person are generally admissible in the discretion of the trial court, unless
the photograph is so inflammatory that its probative value is outweighed by the prejudice which
might result from its inflammatory nature.” State v. Carter, 103 Idaho 917, 921, 655 P.2d 434,
438 (1981). Such photos used to “describe a person . . . are admissible for the purpose of
explaining and applying the evidence and assisting the jury in understanding the case.” Id.
(quoting State v. Kleier, 69 Idaho 278, 286, 206 P.2d 513, 518 (1949)). Photographic “evidence
is used to clarify and present a more comprehensive explanation of the physical facts than could
be obtained from the testimony of the witnesses.” Id. Thus, mugshots that have been trimmed to
eliminate reference to prior criminal behavior, and therefore do not constitute I.R.E. 404(b)



                                                  5
evidence, will be admitted so long as the mugshot is relevant and the mugshot’s probative value
outweighs prejudice to the defendant. See I.R.E. 401; I.R.E. 403.
       This Court has held that a district court does not err in admitting a mugshot if the typical
indicia are removed or trimmed. Cunningham, 97 Idaho at 653, 551 P.2d at 608. In Cunningham,
the State offered into evidence a mugshot to prove, among other things, an extrajudicial
identification of the defendant. Id. The mugshot had been trimmed to “eliminate any reference to
the local police department[.]” Id. This Court affirmed the district court’s admission of the
mugshot because the mugshot had probative value. See id. (citing United States v. Johnson, 495
F.2d 378 (4th Cir. 1974)) (holding the district court did not err in admitting a taped-over mugshot
that was offered to show the defendant’s appearance because the mugshot had probative value).
       A few years later, this Court once again affirmed the district court’s admission of a
mugshot where the “numbers and language at the bottom of the photograph, indicating it was a
‘mug shot,’ were removed prior to the photo’s admission into evidence.” Carter, 103 Idaho at
921, 655 P.2d at 438. In Carter, the mugshot was offered by the State to show the appearance of
the defendant at the time of the incident. Id. This Court held the mugshot was admissible because
it would serve as an aid in “explaining and applying the evidence and assisting the jury in
understanding the case.” Id. at 922, 655 P.2d at 439. This Court reasoned the mugshot was more
probative than prejudicial because the mugshot would assist the jury in having an “accurate
contemporary view of the circumstances of the crime.” Id. at 922, 655 P.2d at 439.
       Other state and federal jurisdictions have similarly held photos that lack the typical
indicia of a mugshot may be admissible. For instance, in Washington, its Supreme Court held a
mugshot that had all identifying information removed was properly admitted because the
mugshot did “nothing to suggest it was a police photograph.” State v. Scott, 604 P.2d 943, 946
(Wash. 1980). Similarly, the Supreme Court of Arizona held a mugshot that “excluded any
reference to the [defendant’s] robbery or the circumstances surrounding the taking of the
photograph” was admissible because the photo was relevant to prove identity and the admission
was not unfairly prejudicial. State v. McCutcheon, 781 P.2d 31, 35 (Ariz. 1989). Additionally,
the Sixth Circuit more recently held a photocopy of a photographic array was admissible because
the array did not display jail identification numbers or height lines. United States v. George, 160
Fed. Appx. 450, 456 (6th Cir. 2005) (recognizing the array was admissible despite the “use of



                                                6
mug shots [being] highly disfavored” because the photo removed “any of the typical indicia of a
mug shot” i.e. height lines or jail identification numbers).
       In this case, Alwin argues the district court erred in admitting the booking photo because
the photo constituted I.R.E. 404(b) evidence and because the State failed to provide notice of its
intent to use the booking photo. According to Alwin, the booking photo constitutes I.R.E. 404(b)
evidence because it “demonstrated that Mr. Alwin had been incarcerated or at least arrested in
the past.” The booking photo portrays Alwin, standing somberly in front of a blank wall, with a
black eye and wearing a yellow scrub shirt. Alwin argues that from the photo it is clear he is
wearing “jail clothing.” In addition, Alwin argues the booking photo was accompanied by
Officer Cohen’s testimony stating he was able to view the photo from a computer system in his
patrol vehicle. According to Alwin, the photo, along with the accompanying testimony, was
evidence of a prior crime, wrong, or other act, and thus, was inadmissible under I.R.E. 404(b).
This argument is unavailing.
       Alwin’s argument is that there should be an absolute bar for use of a booking photo under
any circumstance. However, here, the booking photo lacks the typical indicia of a booking photo
or mugshot. Unlike the photo in Barnes that consisted of “two close-up shots of [the defendant’s]
face side by side, one full face and one a profile,” the booking photo here was not offered
contemporaneously with a side profile view that would lead jurors to believe the photo was a
mugshot. 365 F.2d at 510. Instead, similar to the photo in Cunningham that was admissible
because it had been trimmed to eliminate any reference to the local police department, the
booking photo here also lacked any reference to the local police department. 97 Idaho at 653,
551 P.2d at 608. In addition, similar to the photo in George that was admissible because it lacked
height lines and jail identification numbers, the booking photo here also lacked height lines and
jail identification numbers. 160 Fed.Appx. at 456. Thus, the booking photo in this case does not
constitute I.R.E. 404(b) evidence because it lacks the typical indicia of a mugshot; the front-
facing photo of Alwin was not accompanied by a side profile photo and the photo lacked height
lines, any reference to the local police department, or jail identification numbers.
       Instead, the booking photo is a headshot of Alwin standing in front of a blank wall. As
the district court recognized, the photo could have been a passport photo or a driver’s license
photo. The State offered the booking photo for identification purposes. That is, the photo was
offered with Officer Cohen’s testimony that he had viewed the photo on his computer after

                                                  7
stopping Alwin and the photo on record matched the description of the male he had stopped.
Like the photo in Carter that was introduced, among other reasons, to assist the jury in
understanding the case, the booking photo here was introduced to assist the jury in understanding
how Officer Cohen confirmed the identity of the individual who drove away from a traffic stop
and also the owner of the automobile for further investigation. 103 Idaho at 921, 655 P.2d at 438.
Such photos are admissible because they are relevant and probative. See id. Therefore, the
district court did not err in ruling the photo was not I.R.E. 404(b) evidence and ultimately
admitting the booking photo into evidence.
        Alwin next argues the district court erred in denying his motion for a new trial because
the district court erroneously admitted the booking photo. At the time the post-trial motion was
made, Rule 34 provided “[t]he court on motion of a defendant may grant a new trial to the
defendant if required in the interest of justice.” 2 Rule 34 “does not provide an independent
ground for a new trial.” State v. Lankford, 162 Idaho 477, 493, 399 P.3d 804, 820 (2017)
(quoting State v. Cantu, 129 Idaho 673, 675, 931 P.2d 1191, 1193 (1997)). Instead, Idaho Code
section 19-2406 sets forth the limited grounds for which a district court may grant a motion for a
new trial. Such motions may be granted “[w]hen the court has misdirected the jury in a matter of
law, or has erred in the decision of any question of law arising during the course of the trial” or
“[w]hen the verdict is contrary to law or evidence.” I.C. § 19-2406(5)–(6). As discussed above,
the district court did not err in admitting the booking photo because the photo does not constitute
I.R.E. 404(b) evidence. Thus, the district court did not, as Alwin alleges, err by misdirecting the
jury and the verdict was not contrary to the law or evidence. Thus, the district court properly
denied Alwin’s motion for a new trial.
B.      The prosecutor committed prosecutorial misconduct but it did not rise to the level of
        fundamental error.
        Alwin asserts three instances of prosecutorial misconduct that occurred during the
prosecutor’s closing argument. First, Alwin asserts the prosecutor committed misconduct by
bolstering Officer Cohen’s testimony. Second, Alwin asserts the prosecutor committed
misconduct by personally guaranteeing to the jury the defense’s theory of the case was untrue.
Lastly, Alwin asserts the prosecutor committed misconduct by implicitly asking the jury to find
Alwin guilty based on information other than evidence adduced at trial. Alwin concedes the

2
  I.C.R. 34 was amended since the district court’s decision. The new language reads: “[o]n the defendant’s motion,
the court may vacate any judgment and grant a new trial on any ground permitted by statute.” I.C.R. 34(a).

                                                        8
instances of misconduct were not objected to in the district court. Each allegation will, in turn, be
discussed below.
       “Where prosecutorial misconduct was not objected to during trial, this Court may only
reverse when the misconduct constitutes fundamental error.” Lankford, 162 Idaho at 494, 399
P.3d at 821 (quoting State v. Adamcik, 152 Idaho 445, 480, 272 P.3d 417, 452 (2012)).
Fundamental error: “(1) violates one or more of the defendant’s unwaived constitutional rights;
(2) plainly exists (without the need for any additional information not contained in the appellate
records, including information as to whether the failure to object was a tactical decision); and (3)
[is] not harmless.” Id. (quoting Perry, 150 Idaho at 228, 245 P.3d at 980). An error is harmless
only if it can be proven beyond a reasonable doubt the error did not contribute to the jury’s
verdict. Id. “If the defendant persuades [this Court] that the complained of error satisfies this
three-prong inquiry, then [this Court] shall vacate and remand.” Perry, 150 Idaho at 228, 245
P.3d at 980.
       “There is . . . ‘considerable latitude in closing argument,’ and both sides are ‘entitled to
discuss fully, from their respective standpoints, the evidence and the inferences’ that should be
drawn from it.” State v. Dunlap, 155 Idaho 345, 369, 313 P.3d 1, 25 (2013) (quoting State v.
Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969 (2003)). “Whether comments during closing
arguments rise to the level of fundamental error is a question that must be analyzed in the context
of the trial as a whole.” Lankford, 162 Idaho at 497, 399 P.3d at 824 (quoting State v. Carson,
151 Idaho 713, 718–19, 264 P.3d 54, 59–60 (2011)). Unobjected-to prosecutorial misconduct
that arises in closing argument must be so egregious that the prosecutor’s comments “so infected
the trial with unfairness as to make the resulting conviction a denial of due process.” Id. (quoting
Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Additionally, misconduct may be remedied
by an instruction from the district court informing the jury that the attorneys’ comments are not
evidence. Id. at 501–02, 399 P.3d at 828–29 (stating “the court explicitly informed the jury that
comments during closing statements were not to be considered as evidence. . . . Given the
context of the prosecutor’s comments, we do not think they were so egregious or inflammatory
that they would not have been cured by the court’s instruction.”).
       The initial question in analyzing a prosecutorial misconduct claim is determining whether
the prosecutor’s comments constituted misconduct. Id. at 494, 399 P.3d at 821. “It is the duty of
the prosecutor to see that a defendant has a fair trial, and that nothing but competent evidence is

                                                 9
submitted to the jury.” State v. Christiansen, 144 Idaho 463, 469, 163 P.3d 1175, 1181 (2007)
(quoting State v. Irwin, 9 Idaho 35, 44, 71 P. 608, 611 (1903)). Prosecutors, therefore, should not
“exert their skill and ingenuity to see how far they can trespass upon the verge of error, [because]
generally in so doing they transgress upon the rights of the accused.” Id. Prosecutorial
misconduct occurs “[w]here [the] prosecutor attempts to secure a verdict on any factor other than
the law as set forth in the jury instructions and the evidence admitted during trial, including
reasonable inferences that may be drawn from that evidence[.]” Lankford, 162 Idaho at 494, 399
P.3d at 821. However, in reviewing allegations of prosecutorial misconduct, this Court “must
keep in mind the realities of trial.” State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007).
“A fair trial is not necessarily a perfect trial.” Id. (quoting State v. Estes, 111 Idaho 423, 427–28,
725 P.2d 128, 132–33 (1986)).
       1.      The prosecutor did not commit misconduct by commenting on the credibility of
               the State’s witness.
       Alwin argues the prosecutor committed misconduct by vouching for the State’s witness,
Officer Cohen, in closing argument. The statement at issue was: “[t]here’s one person in here
who has the motive to not tell the truth, and he’s sitting right there. Not Officer Cohen, a police
officer. He is not going to sit up here under oath and not tell the truth. He is credible. His
testimony is credible. . . .” Alwin also argues the statement, “Officer Cohen wasn’t making
anything up” was impermissible vouching. According to Alwin, these statements made by the
prosecutor during closing argument “improperly placed the imprimatur of the State on Officer
Cohen’s testimony[,]” and “improperly bolstered the testimony of the law enforcement witness
and usurped the jury’s vital and exclusive role to make all credibility determinations[.]”
       “Vouching consists of placing the prestige of the government behind a witness through
personal assurances of the witness’ veracity, or suggesting that information not presented to the
jury supports the witness’s testimony.” Lankford, 162 Idaho at 497, 399 P.3d at 824 (quoting
United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993)). Vouching occurs if there is no
evidence to support an assertion made by the prosecutor. See id. at 498, 399 P.3d at 825 (“[T]he
statement about [witness] being inconvenienced and telling the truth is vouching. There is no
evidence to support the assertion by the prosecutor that [witness] ‘was inconvenienced[.]’ ”).
However, “vouching statements, although constituting prosecutorial misconduct, do not
constitute a clear constitutional violation.” Id. (citing Dunlap, 155 Idaho at 370, 313 P.3d at 26).


                                                 10
Thus, even where a prosecutor impermissibly vouches for a witness, the improper statements
will not rise to the level of fundamental error. Id.
       In contrast, prosecutors are “entitled to explain how, from their own perspectives, ‘the
evidence confirms or calls into doubt the credibility of particular witnesses.’ ” Dunlap, 155 Idaho
at 369, 313 P.3d at 25 (quoting Sheahan, 139 Idaho at 280, 77 P.3d at 969). A prosecutor is
permitted to “argue reasonable inferences based on the evidence, including that one of the two
sides is lying.” Lankford, 162 Idaho at 497, 399 P.3d at 824 (citation omitted). Additionally, it is
wholly permissible for a prosecutor to respond to a defendant’s “attempts to impeach the
credibility of government witnesses.” Id. at 497–98, 399 P.3d at 824–25 (“The remaining
statements about the truthfulness of the State’s witnesses . . . are not vouching because defense
counsel opened the door to the discussion of the State’s witnesses’ veracity.”).
       In this case, the prosecutor’s statements did not constitute vouching because Alwin’s
counsel called into question the credibility of the State’s witness, Officer Cohen, on cross-
examination. During cross-examination, Alwin’s counsel questioned inconsistencies in Officer
Cohen’s report. Alwin’s counsel asked, “[y]ou wrote it in your report, correct, that it was a high
risk situation,” to which Officer Cohen responded: “I don’t recall using the term ‘high risk.’ ” A
short time later, Alwin’s counsel also questioned Officer Cohen regarding the accuracy of his
written report that was completed fifteen minutes after the incident. Alwin’s counsel stated: “[s]o
in this particular case, after you had looked at the photograph of the registered owner, Mr. Alwin,
from Officer Phillips’ vehicle, you say roughly 15 minutes later, you didn’t include that it
occurred 15 minutes later in the report; is that right?” When Officer Cohen responded “[n]o,”
Alwin’s counsel then asked: “[a]nd, in fact, you didn’t actually say that the driver was Mr.
Alwin. You wrote that you believed it to be Mr. Alwin; is that right?” After some banter between
Officer Cohen and Alwin’s counsel, Officer Cohen asked to review his report and then agreed
that he indeed wrote “I believe it was Mr. Alwin driving the vehicle.”
       The exchange between Officer Cohen and Alwin’s counsel on cross-examination
illustrates that Alwin attacked the credibility of Officer Cohen. This exchange allowed the
prosecutor to comment on the State’s witness’s credibility. See Lankford, 162 Idaho at 497, 399
P.3d at 824. Therefore, the prosecutor’s statements assuring the jury that Officer Cohen was, in
fact, credible are not instances of vouching and do not constitute misconduct.



                                                  11
       Further, the whole statement by the prosecutor connected the credibility statement to
evidence in the record. The full statement made by the prosecutor was:
               There’s one person in here who has the motive to not tell the truth, and
       he’s sitting right there. Not Officer Cohen, a police officer. He is not going to sit
       up here under oath and not tell the truth. He is credible. His testimony is credible,
       and it was consistent and he documented everything that night that turned out to
       be true later on once he was arrested.
The emphasized language establishes that the prosecutor was not making assertions unsupported
by the record. See Lankford, 162 Idaho at 498, 399 P.3d at 825. Indeed, the record provides
documentation of Officer Cohen’s report that is consistent with Officer Cohen’s testimony.
Because the prosecutor did not make unsupported assertions of Officer Cohen’s credibility, the
prosecutor’s statements did not constitute vouching.       Thus, the prosecutor did not commit
prosecutorial misconduct.
       2.      The prosecutor did not commit misconduct by guaranteeing to the jury that the
               State’s witness’s identification of Alwin was correct.
       Alwin next argues the prosecutor committed misconduct by personally guaranteeing the
jury that Alwin’s theory of the case was untrue. The first statement Alwin alleges is error is as
follows:
               And you can watch Cohen in that video, you know, what I got a view of is
       everything from the waist up, absolutely everything from the waist up. So he’s in
       there and he’s looking. And he’s a unique-looking guy. I guarantee if I walked
       him in here at the beginning of this case, had him stand here and look at you and
       then look away for 20 seconds, starting now, when you saw a picture of him 15
       minutes later and said, that’s the guy, you’re all going to pick him out, because
       it’s him.
According to Alwin, the statement violated his right to a fair trial because the prosecutor used the
weight of his office to undermine Alwin’s theory of the case and disable the jury from making all
credibility determinations. This argument is unpersuasive.
       Prosecutors, in closing arguments, are permitted to explain from their own perspectives
how the evidence confirms or calls into doubt the credibility of a particular witness. Dunlap, 155
Idaho at 369, 313 P.3d at 25. The prosecutor’s comments simply cast doubt on the testimony
provided by the expert regarding the accuracy of identification. Alwin’s expert specifically
testified about the amount of time needed to make an accurate representation. The expert
testified: “We know from a variety of studies what the accuracy rate is under pretty much ideal
circumstances if somebody only gets, let’s say, 10 or 12 seconds of view, and we know that the

                                                12
accuracy rate is in comparison if somebody gets 30 or 40 seconds of view.” The expert also
testified: “If you only get a really brief glimpse of someone, the likelihood of you being able to
ID them later on goes down, and if you get a much longer view of someone, the likelihood of
being able to ID them goes up.” The prosecutor’s statements guaranteeing the jury they would be
able to identify Alwin after only twenty seconds were directly related to the expert’s testimony
regarding the accuracy of identification. Therefore, such statements do not constitute
misconduct.
       Alwin also attacks the statement:
       And I guarantee you one thing: [i]t’s not two Russian guys, one of two Russian guys
       who looks slightly like him. It didn’t happen that way. It did not happen that way. It
       happened just as [Officer] Cohen said it happened, and there’s a lot of evidence to
       support that, because it happened.
Alwin argues his right to a fair trial was violated by the statement because the jury was unable to
determine Officer Cohen’s credibility on its own. This argument is also unpersuasive.
       The prosecutor’s comment regarding the “Russian guys” was also casting doubt on
Alwin’s testimony that it was possible someone else was driving his car the night of the traffic
stop. On direct-examination, Alwin testified that two individuals had access to his car. However,
the men were never discussed again and no evidence was introduced to support Alwin’s theory.
Conversely, Officer Cohen did testify about identifying Alwin and there was evidence provided
in Officer Cohen’s report which supported his identification of Alwin. Thus, the comment about
not believing Alwin’s theory of the case was merely asking the jury to determine who was more
credible, Alwin or Officer Cohen. Such statements are not misconduct.
       3.      The prosecutor’s comments regarding the expert’s testimony and providing his
               own personal opinion constitute prosecutorial misconduct but do not rise to the
               level of fundamental error.
       Alwin argues the prosecutor committed misconduct by asking the jury to decide the case
based on facts not supported by the record. The prosecutor stated: “[a]nd I completely disagree
with the expert. I know that, you know, he’s got some fancy titles and stuff, that when you’re
under stress, you focus less. I completely disagree. I think that a lot of people get hyperfocused
when they stress.” According to Alwin, the prosecutor’s comments were “asking the jury to trust
his opinion, as a prosecutor instead of an expert (and so conflicting with the trial evidence) to
make a finding contrary to the only evidence in the record.” The State responds that the



                                                13
prosecutor’s comments were simply asking the jury to use their common sense to evaluate the
expert’s testimony.
       “This Court has long instructed that, if the State expresses an opinion as to the credibility
of a witness, it must be based on the evidence and should not be couched in terms of a personal
opinion.” State v. Montgomery, 163 Idaho 40, ___, 408 P.3d 38, 44 (2017) (citing State v.
Garcia, 100 Idaho 108, 110 n. 1, 594 P.2d 146, 148 n. 1 (1979)). Such personal opinions
constitute misconduct because a prosecutor cannot “secure a verdict on any factor other than the
law as set forth in the jury instructions and the evidence admitted during trial, including
reasonable inferences that may be drawn from that evidence . . . .” Lankford, 162 Idaho at 494,
399 P.3d at 821.
       This Court has held it is improper for a “prosecutor to express his personal belief or
opinion as to the truth or falsity of any testimony or evidence[.]” Garcia, 100 Idaho at 110, 594
P.2d at 148. Such personal statements constitute misconduct because they are a “form of
unsworn, unchecked testimony” that can “exploit the influence of the [government].” Id. at 111,
594 P.2d at 149. In Garcia, the prosecutor stated: “I don’t believe [defendant]’s story, too many
coincidences, too many slips and slides around the facts.” Id. at 110, 594 P.2d at 148. This Court
held the statement constituted prosecutorial misconduct because a prosecutor should not express
his personal opinion or belief as to the truth or falsity of a defendant’s testimony. Id. at 111, 594
P.2d at 149.
       A prosecutor, however, does not express a personal opinion or belief as to the truth or
falsity of a defendant’s testimony if the statement is based on evidence that has been submitted to
a jury. Montgomery, 163 Idaho at ___, 408 P.3d at 45. In Montgomery, the jury was shown a
video of the alleged incident and heard evidence of the defendant’s actions the night of the
incident. Id. In closing argument the prosecutor stated: “Ladies and gentlemen, you heard
[defendant] lie to you.” Id. at ___, 408 P.3d at 44. This Court held the prosecutor’s comments
alleging the defendant lied were not based on personal beliefs because a video was shown to the
jury regarding the defendant lying. Id. at ___, 408 P.3d at 45. Thus, the comments were not
misconduct because they were not “couched in terms of the [prosecutor’s] personal beliefs. Id.
       In this case, the prosecutor stated that he “completely disagree[ed]” with the expert. The
prosecutor did not attack the credibility of the expert. Instead, the prosecutor expressed a
personal opinion that he disagreed with the expert’s testimony. The prosecutor’s comment was

                                                 14
also based on facts the jury did not hear. The prosecutor commented: “I think that a lot of people
get hyperfocused when they stress.” However, the State did not provide an expert to rebut
Alwin’s expert’s opinion, nor was evidence provided that discussed individuals becoming
“hyperfocused” when stressed. Thus, the prosecutor’s comments expressed a personal belief or
opinion as to the truth or falsity of testimony or evidence, and thus, constituted misconduct. See
Garcia, 100 Idaho at 110, 594 P.2d at 148.
       Because we conclude the prosecutor’s comments regarding his disagreement with the
expert’s testimony constituted misconduct, we must determine whether the misconduct rose to
the level of fundamental error. Perry, 150 Idaho at 226, 245 P.3d at 978. “Prosecutorial
misconduct during closing arguments will constitute fundamental error only if the comments
were so egregious or inflammatory that any consequent prejudice could not have been remedied
by a ruling from the trial court informing the jury that the comments should be disregarded.”
Lankford, 162 Idaho at 501, 399 P.3d at 828 (quoting Parker, 157 Idaho at 146, 334 P.3d at 820).
       As mentioned above, in Lankford, the appellant alleged the prosecutor committed
misconduct by repeatedly stating the defendant had lied or was a liar. Id. at 499, 399 P.3d at 826
(listing sixteen instances where the prosecutor stated the defendant lied or was a liar). This Court
disagreed, and held the prosecutor’s comments did not constitute misconduct. Id. at 501, 399
P.3d at 828. However, this Court went on to recognize that even if the statements rose to the
level of prosecutorial misconduct, the misconduct would not rise to the level of fundamental
error. Id. In its reasoning, this Court recognized the district court “explicitly informed the jury
that the comments during closing [arguments] were not to be considered as evidence.” Id.
Further, an instruction was provided to the jury that stated: “The arguments and statements of the
attorneys are not evidence. If you remember the facts differently from the way the attorneys have
stated them, you should base your decision on what you remember.” Id. Because the instruction
was provided, this Court concluded that even if the comments constituted misconduct, the
misconduct would not rise to the level of fundamental error because the comments were not so
egregious or inflammatory that the instruction would not have remedied any consequential
prejudice. Id.
       In this case, the misconduct does not amount to fundamental error because a jury
instruction was provided that remedied any prejudice. That instruction provided:



                                                15
       The evidence you are to consider consists of, one, sworn testimony of witnesses;
       two, exhibits which have been admitted into evidence; and three, any facts to
       which the parties have stipulated. Certain things you have heard or seen are not
       evidence, including, one, arguments and statements by lawyers. The lawyers are
       not witnesses. What they say in their . . . closing arguments and at other times is
       included to help you interpret the evidence, but it is not the evidence. If the facts
       as you remember them differ from the way the lawyers have stated them, follow
       your memory.
The instruction here is very similar to the instruction in Lankford that informed the jury what the
lawyers said in closing arguments was not evidence and should not be considered as evidence.
Lankford, 162 Idaho at 501, 399 P.3d at 828. Further, the comments in this case are not so
egregious or inflammatory that they become incurable by such an instruction. Id. In fact, the
comment complained of is brief, and occurred on a single, isolated occasion. This Court in
Lankford concluded that reoccurring statements attacking the defendant’s honesty were not so
egregious and inflammatory that the jury instruction would not remedy any consequential
prejudice. Id. Here, the brief, isolated comment is similarly not egregious or so inflammatory that
the jury instruction would not remedy any consequential prejudice. Therefore, the misconduct
did not rise to the level of fundamental error.
                                       V.     CONCLUSION
       We affirm the district court’s admission of the booking photo and affirm the district
court’s denial of Alwin’s motion for a new trial. While one of the challenged statements by the
prosecutor constituted prosecutorial misconduct, it did not constitute fundamental error.
Accordingly, the district court’s judgment is affirmed.
       Justices HORTON, BRODY and BEVAN, CONCUR.
       STEGNER, Justice, dissenting in part and concurring in part.
       I dissent from the majority’s conclusion that “the district court did not erroneously admit
the booking photo because the photo did not constitute I.R.E. 404(b) evidence . . .” as set out in
Section IV.A.
       At trial, and over a proper objection, the trial judge admitted evidence of Alwin’s
previous incarceration as depicted in a booking photo. Unlike the majority, I view the evidence
as subject to I.R.E. 404(b) (similarly to the Idaho Court of Appeals). The process employed by
the deputy prosecutor and the judge did not comport with what was required by the Rule, thus,
resulting in an abuse of discretion. (It is also hard for me to understand how the majority can
conclude the district court did not err in admitting the booking photo because the photo does not
                                                  16
constitute I.R.E. 404(b) evidence, when the trial judge herself concluded that she “probably”
would have redacted portions of the photo had she appreciated it was a booking photo prior to its
admission.) Further, I cannot conclude the evidence was harmless. Accordingly, I would vacate
Alwin’s conviction, and remand the case to the district court.
       The facts are relatively straight-forward. At approximately 1:30 a.m. on August 3, 2015,
a Coeur d’Alene police officer (Officer Cohen) spotted a speeding Mercedes automobile and
effected a traffic stop. The officer provided the car’s Montana license plate to dispatch and
approached the vehicle. The stop took twenty-two seconds. The driver never completely lowered
the tinted driver’s window of the Mercedes. The driver was wearing a hat that he never removed.
The driver never looked directly at the officer. At one point, the officer observed approximately
three-quarters of the driver’s face. After this brief encounter, the driver sped away and was not
apprehended in the car, even though the officer and others engaged in a high-speed chase.
       Approximately fifteen minutes after he stopped the Mercedes, Officer Cohen accessed
the booking photo of Alwin on his car’s computer. The color photo depicted Alwin in jail garb
(yellow scrubs) with a partially blackened eye. The officer viewed the photo and concluded that
the person he had previously stopped was the person depicted in the photograph. Alwin was later
charged with felony fleeing or attempting to elude a peace officer in violation of Idaho Code
section 49-1404(2). The case went to trial on July 6, 2016, eleven months after the traffic stop.
       At trial, the identification of Alwin as the driver of the car in question was hotly
contested. Alwin presented an alibi defense, which included his half-brother testifying that Alwin
had been with him in Montana at the time of the stop, and consequently could not have been in
Coeur d’Alene on the day in question. Defense counsel also presented expert testimony to
discredit the officer’s post-chase identification.
       In the State’s case-in-chief, the deputy prosecutor sought the admission of Alwin’s prior
booking photo. (Curiously and tellingly, the photo was never identified as a booking photo by
the deputy prosecutor prior to its admission, even though the deputy prosecutor had an
opportunity to do so outside the presence of the jury.) Defense counsel properly objected to the
booking photo on the basis of Rule 404(b) of the Idaho Rules of Evidence. The State responded
that no conduct was being alleged. The district judge did not do what was required under I.R.E.
404(b) because she did not look closely at the photo and misperceived it as a driver’s license



                                                     17
photo. The judge admitted it without ever engaging in the two-tiered balancing test that is
required under I.R.E. 404(b).
          The jury convicted Alwin. He then moved for a new trial contending that the district
court erred in admitting the booking photo. Following a hearing, the district judge denied the
motion. Alwin was sentenced on the jury’s verdict of guilty. On appeal, a unanimous Idaho
Court of Appeals concluded the district judge abused her discretion in admitting the booking
photo into evidence. The Court of Appeals could not conclude the error was harmless. It ordered
that the judgment of conviction be vacated and that the case be remanded to the district court.
We granted the State’s Petition for Review.
          Rule 404(b)(1) of the Idaho Rules of Evidence provides that “[e]vidence of a crime,
wrong or other act is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” In other words, I.R.E.
404(b) generally prevents a person’s history from being used to convict him of the current
charge.
              The rationale for this prohibition in a criminal case, is the recognition that
      such evidence will induce the jury to believe the accused is more likely to have
      committed the charged crime because the accused is a person of bad character,
      distracting the jury from the prime consideration of the defendant’s guilt or
      innocence of the particular crime charged.
D. CRAIG LEWIS, IDAHO TRIAL HANDBOOK § 13:5 at 222 (2d ed. 2005) (citing State v. Shepherd,
124 Idaho 54, 855 P.2d 891 (Ct. App. 1993)).
          There are exceptions to the general rule. In addition, the Rule sets forth a process that
must be followed in order for prior bad act evidence to be admitted at trial. Before a prosecutor
may seek admission of an accused’s prior bad act, he must
          (A) file and serve reasonable notice of the general nature of any such evidence
          that the prosecutor intends to offer at trial; and
          (B) do so reasonably in advance of trial – or during trial if the court, for good
          cause shown, excuses lack of pretrial notice.
I.R.E. 404(b)(2)(A) & (B). This Court has held that the notice requirement in I.R.E. 404(b) is
mandatory and failure to give advance notice would bar the admission of such evidence. State v.
Sheldon, 145 Idaho 225, 230, 178 P.3d 28, 33 (2008).
          Admissibility under I.R.E. 404(b), after the evidence is brought to the judge’s attention
prior to trial, is subject to a two-tiered analysis. State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185,
1188 (2009). The first tier has two steps. Id. The trial judge must first determine that the fact of

                                                 18
the crime or wrong has been established. Id. If the fact of the crime or wrong can be established,
the trial judge must next determine if admitting that evidence would be relevant. Id. “Evidence of
uncharged misconduct must be relevant to a material and disputed issue concerning the crime
charged, other than propensity.” State v. Field, 144 Idaho 559, 569, 165 P.3d 273, 283 (2007).
“Such evidence is only relevant if the jury can reasonably conclude that the act occurred and that
the defendant was the actor.” Grist, 147 Idaho at 52, 205 P.3d at 1188 (citing United States v.
Beecham, 852 F.2d 898 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920 (1979)).
        If this first hurdle is overcome, the trial judge must then undertake a balancing under
I.R.E. 403 to “determine whether the danger of unfair prejudice outweighs the probative value of
the evidence.” Id. (citing M. CLARK, REPORT OF THE IDAHO STATE BAR EVIDENCE COMMITTEE,
Ch. 404, p. 4 (4th Supp. 1985); State v. Sheahan, 139 Idaho 267, 275, 77 P.3d 956, 964 (2003)
(citations omitted).
        Given that process as a background, here is what was and was not done in Alwin’s case:
the deputy prosecutor did not apprise the trial judge that the evidence sought to be admitted was
evidence of the defendant’s prior bad act, nor did he even identify it as a booking photo.
        Much has been said about whether the booking photo appears to be what it undoubtedly
is, a booking photo. The photo depicts Alwin in yellow scrubs with a partially blackened eye. It
does not contain other indicia of a booking photo, such as a background depicting the subject’s
height as is sometimes included, nor does it have numbers or a name placard, or an identification
of either the subject or the arresting agency as is also sometimes seen. What it does show is
Alwin in yellow scrubs with a partially blackened eye. It was also identified as having been
accessed by the officer on his police cruiser’s computer. Given the context in which it was
identified and introduced, it appears likely that the photo would have been perceived as what it
was, a booking photo, evidencing a prior arrest. 3 In other words, it was precisely the type of
evidence that can be misused by a jury. It is also precisely the type of evidence I.R.E. 404(b) is
intended to address.



3
  Some have suggested the photo could just as easily be a driver’s license or a passport photo. The majority has
concluded the booking photo did not constitute I.R.E. 404(b) evidence. However, I have never seen either a driver’s
license or a passport photo depicting someone with a partially blackened eye or in scrubs, yellow or otherwise. I
think anyone who regularly watches television, accesses the internet, or reads a newspaper would recognize it as a
booking photo or mug shot. Particularly, given that it was contained in and identified as being from the data bank
accessible to the police.

                                                        19
       The colloquy between counsel and the trial judge that occurred during trial and prior to
the photo being offered is instructive as to what the deputy prosecutor did and did not do. 4 The
deputy prosecutor, Mr. Whitaker, acknowledged that he sought to have admitted at least two
photos: with regard to the first, the booking photo that was admitted over defense counsel’s
objection, the following statement was made:
       I don’t think there’s a problem. It’s the photo that Officer Cohen looked at and
       was admitted at the prelim[inary hearing] shortly after the alleged defendant – the
       person who drove off took off. So this is what he used to verify the person he saw
       about 15 minutes after he left. So I don’t think there’s going to be an issue with
       this, but the issue is with the jail booking photos.
(Emphasis added). The clear implication from the deputy prosecutor’s statements is that the
photo he sought to admit, and with which he did not think there was a problem, was not a
booking photo. As is now obvious, that implication is misleading at best. (Elsewhere in this
opinion I deal with the issue of prosecutorial misconduct, specifically during closing argument. I
think misleading the court, whether done wittingly or unwittingly, constitutes prosecutorial
misconduct, and is a more egregious error, than that which occurred during closing.)
       In actuality, the deputy prosecutor sought to introduce at least two photos, both of which
were booking photos. One involved a booking photo from a prior crime, which clearly
implicates I.R.E. 404(b). The other involved the booking photo created as a result of the charge
of eluding brought in this case, which in the scheme of things is less problematic than the photo
from a prior arrest. Ultimately, the trial judge did not admit the latter booking photo, the one
generated as a result of the underlying eluding case, due to a discussion on the record and a
compromise being entered into by counsel prior to it being offered. However, the booking photo
from the prior arrest was admitted. Evidence of a previous arrest is more unfairly prejudicial
4
                MR. WHITAKER [the deputy prosecutor]: Briefly, Your Honor, there’s a couple
       photographs the State intends on getting in. The first one [the booking photo at the heart of this
       appeal] is – I don’t think there’s a problem. It’s the photo that Officer Cohen looked at and was
       admitted at the prelim[inary hearing] shortly after the alleged defendant – the person who drove
       off took off. So this is what he used to verify the person he saw about 15 minutes after he left. So I
       don’t think there’s going to be an issue with this, but the issue is with the jail booking photos. And
       so I have subpoenaed Officer Shank down here, because one of the issues here that Officer Cohen
       noticed was a tattoo, and Mr. Logsdon [defense counsel] voir dired briefly on it, anybody have any
       issues with tattoos.
                I intend on getting these in, and normally I would not do that. These are booking photos.
       But the defense essentially placed it at issue by claiming an alibi defense, and so I think these do
       come into evidence and they are relevant. And Mr. Logsdon and I we’ve done a pretty good job of
       working most things out, but we’re going to have a dispute over these. So we were just kind of
       looking to make this go a little smoother, maybe a salvo from the Court on what the Court intends
       to do, whether we get these in or not.

                                                        20
than a booking photo generated from the eluding charge, because the jury can logically infer that
Alwin was arrested due to the underlying charge. It is exponentially more prejudicial to Alwin to
admit his booking photo from a prior arrest because it implies a prior bad act (which is what
I.R.E. 404(b) prohibits).
       Because the process required by I.R.E. 404(b) was not followed, the judge could not
make the threshold determination. She could not assess “whether there is sufficient evidence to
establish the other crime or wrong as fact.” Grist, 147 Idaho at 52, 205 P.3d at 1188. In fact, that
determination has never been made. Alwin’s prior booking photo was admitted and shown to the
jury without this initial determination having ever been made.
       The next determination that needed to be made (assuming the judge concluded that a
wrong or crime had actually been committed by Alwin), was whether introduction of that
evidence was “relevant to a material and disputed issue concerning the crime or wrong” charged.
Grist, 147 Idaho at 52, 205 P.3d at 1188.
       And finally, if the first part of the two-tiered test was met, the judge was obliged to weigh
whether the danger of unfair prejudice substantially outweighed the probative value of the
evidence. Grist, 147 Idaho at 52, 205 P.3d at 1188.
       The majority opinion states that adopting Alwin’s argument would create an absolute bar
to the use of a booking photo or mug shot at a trial in the future. I respectfully disagree. The
remedy Alwin seeks is to require the deputy prosecutor and the trial judge to follow the Idaho
Rules of Evidence, which was not done at his trial. This Court should require that any
recognizable booking photo go through the process set out in I.R.E. 404(b) and the two-tiered
test outlined in Grist before it is admitted. If the judge makes the determination that the booking
photo satisfies the standard, then the booking photo would be admissible. However, this was not
the case here. We frequently state that a defendant is not entitled to a perfect trial, but is entitled
to one that is fair. See State v. Ellington, 151 Idaho 53, 62, 253 P.3d 727, 736 (2011) (citation
omitted). Under these circumstances, I cannot conclude Alwin received a fair trial.
       Here, the deputy prosecutor did not apprise the court prior to trial (as is required by the
Rule, unless good cause is shown) of his intention to offer a booking photo in evidence. It is
unclear why he brought one booking photo to the attention of the trial judge, but kept that
information from her with regard to another. It is also unclear why the deputy prosecutor never
showed the booking photo that was admitted into evidence to the judge prior to it being shown to

                                                  21
the jury. The defense attorney recognized the evidence as subject to I.R.E. 404(b) and voiced his
objection in a timely way. The trial judge did not recognize the booking photo for what it was,
and admitted it over proper objection without ever getting a close look (and without ever being
told it was a booking photo). It was not until after the trial that the judge was presented with the
fact that the photo was taken when Alwin was arrested and booked into the Kootenai County jail
on a previous charge.
       The trial judge also mistakenly put the blame for the admission of the evidence on
defense counsel. As noted by the defense attorney, Mr. Logsdon, during the hearing on the
motion for a new trial:
       I didn’t make a speaking objection because I consider most courts frown upon
       them and I just don’t think they’re the correct thing to do. So I made a simple
       objection under 404(b), the State responded, and the Court made it’s [sic] ruling,
       and the photograph was before the jury rather quickly thereafter.
       The trial judge responded to counsel’s statement in the following way:
                In addition, the objection -- and I certainly appreciate, Mr. Logsdon,
       absolutely appreciate your not giving speaking objections, particularly in a jury
       trial, but there are alternatives to that. This objection doesn’t state the grounds, in
       my view, well enough. And I didn’t understand it. Now, that could be on me, but
       there are ways to present that to the Court, and one of those ways is to say, Judge,
       I think we need to have a discussion outside the presence of the jury, we excuse
       the jury, we have the discussion so that we can take up the objection.
       The defense attorney did what was required of him. To require more evidences a
misunderstanding of the Rule. The prosecutor is obliged to bring 404(b) evidence to the court’s
attention prior to trial. If he does not, he is required to demonstrate “good cause” for that failure
if he hopes to have the evidence admitted. Failure to comply with the Rule renders the evidence
inadmissible. Sheldon, 145 Idaho at 230, 178 P.3d at 33. Here, he did not bring it to the court’s
attention even though he did so with a different booking photo. To suggest the defense attorney
could have or should have done more, impermissibly shifts the responsibility for the oversight to
the wrong party. The rule clearly puts the responsibility on the prosecution. To shift that burden,
as the trial judge did, constitutes an abuse of discretion.
       I also think the majority’s reliance on State v. Cunningham, 97 Idaho 650, 653, 551 P.2d
605, 608 (1976), and State v. Carter, 103 Idaho 917, 921, 655 P.2d 434, 438 (1981) is misplaced
for several reasons. First, Cunningham and Carter both predate Idaho’s adoption of its Rules of



                                                  22
Evidence. See generally M. CLARK, REPORT        OF THE IDAHO    STATE BAR EVIDENCE COMMITTEE
(1983). Consequently, they are of no precedential value in analyzing this case.
       Second, the booking photos admitted in Carter and Cunningham are distinguishable from
Alwin’s photo. First, the booking photo admitted in Carter was taken at the time of the
defendant’s arrest for the crime on which he was being tried. Carter, 103 Idaho at 921, 655 P.2d
at 438. Even though, as stated above, I.R.E. 404(b) had not been adopted, the Rule would not
necessarily have been implicated because it was not evidence of a prior bad act.
       In Cunningham, it is unclear exactly when the photo was taken that was presented to the
jury, however, this Court noted “it is just as likely that the jury assumed [the photo had been]
taken by the police when the appellant was arrested on the charges for which he was presently
being tried.” Cunningham, 97 Idaho at 653, 551 P.2d at 608. Additionally, and importantly, the
judge in that case gave a limiting instruction stating, “the photograph merely showed that
appellant had been arrested and that it was not to be considered evidence that appellant had any
prior criminal record.” Id.
       In this case, Alwin was purportedly identified from his booking photo taken from a prior
arrest. Since the jury was told the officer accessed the photo fifteen minutes after the traffic stop,
the jury could only infer that the photo admitted during the trial was from a prior booking. As
stated previously, I.R.E. 404(b) was created to avoid this very misuse. Further, there was no
limiting instruction, as the district court did not recognize the prejudicial nature of the photo
being introduced. The Cunningham and Carter decisions are not comparable to this case, and are
not useful in determining whether I.R.E. 404(b) should apply in this case.
       In conclusion, I believe the district court abused its discretion by failing to apply the
required applicable legal standards to I.R.E. 404(b) evidence. As the judge failed to recognize the
booking photo as implicating I.R.E. 404(b) and failed to perform the proper analysis, she did not
do what was required under the rules. I cannot conclude the error in admitting the booking photo
was harmless. I would reverse and remand just as the Court of Appeals did.
       I concur with the portion of the majority’s opinion in which the Court concludes that
prosecutorial misconduct (not relating to the introduction of the booking photo) did not rise to
the level of fundamental error as set out in Section IV.B.
       I write separately to note that I would hold that there was also prosecutorial misconduct
in regard to the following statements made by the deputy prosecutor:

                                                 23
               I guarantee if I walked him in here at the beginning of this case, had him
       stand there and look at you and then look away for 20 seconds, starting now,
       when you saw a picture of him 15 minutes later and said, That’s the guy, you’re
       all going to pick him out, because it’s him.
He then said, “[a]nd I guarantee you one thing: It’s not two Russian guys, one of two Russian
guys who looks slightly like him. It didn’t happen that way.”
       Although it is true that a prosecutor is permitted to explain from his or her own
perspective how evidence either confirms or calls into doubt the credibility of a particular
witness, using a phrase like “I guarantee” is particularly concerning for the effect it has on the
jury. The phrase “I guarantee” is on the wrong side of the ledger when it comes to the use of
personal opinions. When the prosecutor guarantees something, that creates an inference that
should not be allowed. See State v. Montgomery, 163 Idaho 40, 46, 408 P.3d 38, 44 (2017)
(citing State v. Garcia, 100 Idaho 108, 110 n.1, 594 P.2d 146, 148 n.1 (1979)).
       While I take issue with such phrases being used in closing arguments, I cannot say that
the statements rose to the level of fundamental error in this case. Here, the district court gave a
jury instruction stating, “what [lawyers] say in their . . . closing arguments . . . is included to help
you interpret the evidence, but it is not evidence.” Similar to the other instance of misconduct
noted by the majority, it likely does not rise to the level of “egregious and inflammatory”
language that could not be remedied by the jury instruction. Therefore, the misconduct does not
rise to the level of fundamental error, and thus, is not reversible. Consequently, I concur with the
outcome of the majority that we should not reverse and remand on the grounds of prosecutorial
misconduct.




                                                  24
