               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42553

STATE OF IDAHO,                                )    2015 Unpublished Opinion No. 766
                                               )
       Plaintiff-Respondent,                   )    Filed: December 24, 2015
                                               )
v.                                             )    Stephen W. Kenyon, Clerk
                                               )
JONATHAN ALAN HILL,                            )    THIS IS AN UNPUBLISHED
                                               )    OPINION AND SHALL NOT
       Defendant-Appellant.                    )    BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the Second Judicial District, State of Idaho, Nez
       Perce County. Hon. Jay P. Gaskill, District Judge.

       Judgment of conviction, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Eric D. Fredericksen, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nichole L. Schafer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Jonathan Alan Hill appeals from his judgment of conviction for felony driving under the
influence. He argues the district court abused its discretion by admitting hearsay testimony
regarding vertical nystagmus testing and blood alcohol content. He also argues that the State
committed prosecutorial misconduct under the fundamental error doctrine for using this
testimony during trial and in closing argument. For the reasons set forth below, we affirm the
judgment of conviction.
                                               I.
              FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       On a snowy night in the hills of Nez Perce County, Hill was driving with friends when he
was stopped by law enforcement officers because the taillights of his vehicle were not
illuminated. The area in which Hill was driving borders both Lewis County and Nez Perce


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County, and both counties deployed sheriff’s deputies to respond to a report of a juvenile party.
While traveling to the location of the reported party, the Lewis County deputies observed Hill’s
vehicle. These deputies initiated the traffic stop at the request of the Nez Perce County Sheriff’s
Department because the Nez Perce County deputy was still en route to the area. During the
traffic stop, a Lewis County deputy smelled the odor of an alcoholic beverage coming from
within the vehicle, observed that Hill’s eyes were bloodshot and glassy, and noticed that Hill had
slurred speech when speaking with the deputy. The Lewis County deputy contacted the Nez
Perce County Sheriff’s Department who requested that the deputy begin the DUI investigation.
After conducting three field sobriety tests (FSTs), the Lewis County deputy determined that Hill
was impaired. Hill had failed the walk-and-turn test and the one-leg-stand test. Further, the
horizontal gaze nystagmus (HGN) test showed that Hill had both horizontal and vertical
nystagmus, additional indicators of impairment.
       When the Nez Perce County deputy arrived at the scene, he placed Hill in the backseat of
the patrol car and informed Hill of his right to participate in an evidentiary test (a breath test) and
the possible consequences for failure to participate in the test. Hill declined to take the breath
test. Hill informed the deputy that he had not consumed alcohol and that the FSTs were not
properly conducted because the ground was snow covered and slick, and because he was wearing
bulky clothes and boots. Hill was arrested for driving under the influence and transported to the
Nez Perce County Jail.
       During the jury trial, the Lewis County deputy testified about the process of conducting
the FSTs, including the HGN test for both horizontal and vertical nystagmus. The following
testimony is at issue on appeal:
       STATE:   Okay. And so what is the horizontal gaze nystagmus field sobriety
                test?
       DEPUTY: Do you want me to explain how we do it?
       STATE: Yes, please.
       DEPUTY: (Description of how the test is performed.) And if they have vertical
                nystagmus, we were taught in the academy that it’s generally an
                indication--
       DEFENSE: Objection. Hearsay.
       COURT: Overruled. You can continue. You can continue, I’m sorry.
       DEPUTY: Okay. We are taught in the academy that if--if it’s vertical
                nystagmus, it’s generally an indicator of over a certain level, which is
                generally .10, is what I was taught.



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        STATE:  And so if--during your observations, if you do observe nystagmus,
                what does that indicate to you?
        DEPUTY: Generally, impairment.
        Also, at issue on appeal is a statement made by the prosecutor during closing argument.
The prosecutor argued:
        [T]here was also vertical nystagmus. And he testified that when the eye goes up,
        there’s also the possibility that the eye would bounce at vertical nystagmus as
        well. And the officer told you what vertical nystagmus means. And he testified
        that it meant that the defendant had over a .10 blood alcohol content. That’s just
        another piece of the puzzle that you have in this case.
        The jury returned a guilty verdict, and Hill was convicted of felony driving under the
influence and sentenced to a unified sentence of ten years, with three years determinate. He was
ordered to serve a period of retained jurisdiction, and after successfully completing the period of
retained jurisdiction, he was placed on supervised probation. Hill appeals.
                                                 II.
                                            ANALYSIS
A.      The Hearsay Objection
        Hill argues that the district court erred in overruling his hearsay objection and allowing
the deputy’s testimony regarding the vertical nystagmus and corresponding blood alcohol
content. The trial court has broad discretion in determining the admissibility of evidence. State
v. Harris, 141 Idaho 721, 724, 117 P.3d 135, 138 (Ct. App. 2005). A decision to admit or deny
such evidence will not be disturbed on appeal absent a clear showing of abuse of that discretion.
Id.   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).
        Hearsay is defined as a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted. I.R.E. 801(c);
State v. Gomez, 126 Idaho 700, 704, 889 P.2d 729, 733 (Ct. App. 1994). Hearsay is inadmissible
unless otherwise provided by an exception in the Idaho Rules of Evidence or other rules of the



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Idaho Supreme Court. I.R.E. 802. In determining whether evidence is hearsay we look to the
following test:
        A “statement” is defined as an oral or written assertion or nonverbal conduct
       intended as an assertion. It follows then, that to constitute hearsay, an utterance
       must first be an assertion of fact and second, it must be offered for the purpose of
       proving the truth of that asserted fact. These criteria reflect the purpose of the
       hearsay rule, which is to assure that testimony presenting assertions can be tested
       by cross-examination of the person making the assertion.
State v. McDonald, 141 Idaho 287, 288, 108 P.3d 434, 435 (Ct. App. 2005) (internal citations
omitted).
       In this case, the deputy’s testimony was hearsay and was improperly admitted. The
deputy testified about an out-of-court statement, his assertion about what he was taught at the
police academy, and this testimony was relied upon by the State for the truth of the matter
asserted--that the presence of vertical nystagmus indicated a blood alcohol level of .10 or greater.
The district court overruled the objection and erred in allowing this testimony to be admitted.
       Error is not reversible unless it is prejudicial. State v. Stoddard, 105 Idaho 169, 171, 667
P.2d 272, 274 (Ct. App. 1983).       With limited exceptions, even constitutional error is not
necessarily prejudicial error. Id. Thus, we examine whether the alleged error complained of in
the present case was harmless. See State v. Lopez, 141 Idaho 575, 578, 114 P.3d 133, 136 (Ct.
App. 2005). When the error involves an incorrect ruling as to the admission of evidence, relief
will only be granted when a substantial right of one of the parties is affected. State v. Ehrlick,
158 Idaho 900, 912, 354 P.3d 462, 474 (2015); State v. Shackelford, 150 Idaho 355, 363, 247
P.3d 582, 590 (2010).
       Whether an error affected substantial rights in a particular case depends upon a
       host of factors, including the importance of the witness’ testimony to the
       prosecution’s case, whether the testimony was cumulative, the presence or
       absence of evidence corroborating or contradicting the testimony of the witness
       on material points, the extent of cross-examination otherwise permitted, and the
       overall strength of the prosecution’s case.
Shackelford, 150 Idaho at 366, 247 P.3d at 593 (citing State v. Hooper, 145 Idaho 139, 146, 176
P.3d 911, 918 (2007)). If a substantial right has not been affected by the error, such error is
harmless. Ehrlick, 158 Idaho at 911, 354 P.3d at 473. To establish harmless error, the State
must prove “beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.” State v. Perry, 150 Idaho 209, 221, 245 P.3d 961, 973 (2010) (quoting
Chapman v. California, 386 U.S. 18, 24 (1967)).
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        Here, although the testimony may have been important to the prosecutor’s case, there was
other evidence presented which corroborated the deputy’s testimony, the officer was subject to
cross-examination and the prosecutor’s case was relatively strong even without the erroneously
admitted testimony. The deputy testified as to the other failed FSTs, including the HGN test,
one-leg-stand test, and the walk-and-turn test. Finally, both the Lewis County deputy and the
Nez Perce County deputy testified that Hill smelled of alcohol and that Hill had slurred speech
and bloodshot, glassy eyes. As such, we conclude beyond a reasonable doubt that this testimony
did not contribute to the verdict obtained. The admission of the hearsay evidence was harmless
error, because it did not affect a substantial right of Hill.
B.      Prosecutorial Misconduct
        On appeal, Hill argues that the State committed prosecutorial misconduct by utilizing the
vertical nystagmus testimony both in its case-in-chief and in closing argument. Hill made no
contemporaneous objection to the prosecutor’s closing argument at trial, and so we must
examine this issue under the fundamental error doctrine. In Perry, the Idaho Supreme Court
clarified the fundamental error doctrine as it applies to allegations of prosecutorial misconduct.
If the alleged misconduct was not followed by a contemporaneous objection, an appellate court
should reverse 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. Perry, 150 Idaho at 226, 245 P.3d at 978.
        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. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in
reviewing allegations of prosecutorial misconduct we must keep in mind the realities of trial. Id.
A fair trial is not necessarily a perfect trial. Id. While a prosecutor’s role during trial is to
vigorously present the government’s case, “the desire for success should never induce a
prosecutor to obtain a verdict by argument based upon anything except the evidence in the case
and the conclusions legitimately deducible from the law applicable to the same.” State v.
Troutman, 148 Idaho 904, 908, 231 P.3d 549, 553 (Ct. App. 2010). The role of a closing
argument is to “enlighten the jury and help the jurors remember and interpret the evidence.”
State v. Iverson, 155 Idaho 766, 771, 316 P.3d 682, 687 (Ct. App. 2014). A prosecutor is granted

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considerable latitude during closing arguments and has the right to discuss inferences arising
from the evidence, but the prosecutor may not misrepresent or mischaracterize the evidence.
State v. Johnson, 149 Idaho 259, 266-67, 233 P.3d 190, 197-98 (Ct. App. 2010). However, the
comments and arguments of the parties are not evidence, and when the jury is so instructed, we
presume that the jury follows the court’s instructions. State v. Moses, 156 Idaho 855, 871, 332
P.3d 767, 783 (2014).
       Hill argues that the State committed prosecutorial misconduct by eliciting improper
testimony and by emphasizing that testimony in closing argument. Hill further argues that this
amounts to fundamental error under the Perry analysis because the record shows that this
testimony and argument violated his constitutional right to a fair trial and affected the outcome
of the trial proceedings because he was found guilty of driving under the influence.
       At issue is the testimony and argument regarding the correlation between a positive
vertical nystagmus field sobriety test and a person’s blood alcohol content. The Idaho Supreme
Court has established the validity of the HGN field sobriety test and the use of the HGN test to
aid law enforcement in determining whether a driver might be impaired in violation of Idaho
law. However, the Supreme Court has limited the use of the results of an HGN test by holding
that “the theory underlying the HGN test is sound, but HGN test results may only be used to
draw certain inferences. As circumstantial evidence of intoxication, a positive HGN test result
alone is not evidence of a certain degree of blood alcohol content.” State v. Garrett, 119 Idaho
878, 882, 811 P.2d 488, 492 (1991). Therefore, in the absence of an accompanying chemical
analysis for blood or breath alcohol content, the HGN field sobriety test cannot be used at trial to
establish blood alcohol content in support of a conviction for a driving under the influence
conviction. Id. In a subsequent case, the Supreme Court confirmed the holding in Garrett,
stating that HGN test evidence may be used “only in conjunction with evidence from other field
sobriety tests, and [Garrett] permits the arresting officer to testify only that nystagmus may be an
indicator of intoxication, not that it is conclusive evidence.” State v. Gleason, 123 Idaho 62, 66,
844 P.2d 691, 695 (1992) (emphasis in original). However, the admissibility of this evidence is
limited, and the State is forbidden from using this evidence to “establish or infer any particular
correlative BAC level, because nystagmus does stem from causes other than the ingestion of
alcohol.” Id.



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       In Garrett, despite the improper testimony, the defendant’s conviction was affirmed due
to the additional evidence of impairment, including evidence that the defendant failed the walk-
and-turn and one-leg-stand tests. The Court stated, “[g]iven the other evidence of intoxication,
the court’s error did not so contribute to the verdict as to leave us with a reasonable doubt that
the jury would have reached the same result had the error not occurred.” Garrett, 119 Idaho at
882, 811 P.2d at 492. The same result occurred in Gleason and the Court held that despite the
improper testimony, there was sufficient evidence of impairment, including failed FSTs, that
supported the driving under the influence conviction.
       In order to obtain the relief requested on appeal, Hill must show that the vertical
nystagmus testimony admitted during trial and argued by the State in closing argument violated
an unwaived constitutional right. Here, Hill asserts that right to be the constitutional right to a
fair trial. While the deputy’s testimony indicated that there is a correlation between the presence
of the vertical nystagmus and a specific blood alcohol level, this testimony was not specifically
elicited by the State and the admission of the testimony cannot be deemed to be prosecutorial
misconduct sufficient to violate the defendant’s right to a fair trial. In addition, despite the
hearsay testimony, the deputy did not offer an opinion as to Hill’s specific BAC but instead,
limited his testimony to what was learned at the academy: the presence of vertical nystagmus is
an indicator of impairment. The deputy also testified as to the other failed FSTs, including the
HGN test, one-leg-stand test, and the walk-and-turn test. Finally, both the Lewis County deputy
and the Nez Perce County deputy testified that Hill smelled of alcohol and that Hill had slurred
speech and bloodshot, glassy eyes. There was sufficient and competent evidence presented to
the jury that Hill was impaired even without the testimony about the correlation between
nystagmus and blood alcohol content. In addition, Hill presented a vigorous defense with a
number of witnesses who had been present that evening and the jury found there was sufficient
evidence to convict Hill of driving under the influence. The State did not commit prosecutorial
misconduct in violation of the defendant’s constitutional rights when the deputy offered the
unsolicited testimony regarding vertical nystagmus.
       Finally, the State is granted considerable latitude in closing arguments, and while the
argument about the vertical nystagmus and blood alcohol content violates the rule from Garrett
and Gleason, closing arguments are not evidence upon which a jury can rely in rendering a
verdict. The record shows that the jury was instructed that the comments and arguments of the

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parties were not evidence, and we presume the jury followed the court’s instructions. Hill has
not met his burden to show that the conduct of the State rose to the level of prosecutorial
misconduct in violation of an unwaived constitutional right and thus, Hill has not met his burden
under the first prong of the Perry analysis.
                                               III.
                                         CONCLUSION
       The district court erred in admitting hearsay testimony, but that error was harmless and
did not affect the outcome of the trial. In addition, Hill has failed to meet his burden under the
first prong of Perry to demonstrate that the State or the district court violated an unwaived
constitutional right. Based on the foregoing, Hill’s judgment of conviction for driving under the
influence is affirmed.
       Chief Judge MELANSON and Judge GRATTON CONCUR.




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