               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38282

STATE OF IDAHO,                                 )      2012 Unpublished Opinion No. 445
                                                )
       Plaintiff-Respondent,                    )      Filed: April 16, 2012
                                                )
v.                                              )      Stephen W. Kenyon, Clerk
                                                )
MARK CLAYTON BOMAN,                             )      THIS IS AN UNPUBLISHED
                                                )      OPINION AND SHALL NOT
       Defendant-Appellant.                     )      BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Darla S. Williamson, District Judge.

       Judgment of conviction for trafficking in heroin, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Mark Clayton Boman was convicted of conspiracy to traffic in heroin, Idaho Code §§ 18-
1701, 37-2732B(a)(6)(C). He asserts that the district court erred by excluding an alibi witness
and that the prosecutor committed misconduct during closing arguments.
                                               I.
                                       BACKGROUND
       On January 20, 2010, a postal inspector obtained a federal search warrant to open a
package addressed to Jesse Duran.       Upon execution of the search warrant, the inspector
discovered approximately one ounce of heroin in the package. The package was resealed and
prepared for a controlled delivery. The same day, a man arrived at the post office and inquired
about the package, but the postal service employee with whom the man spoke was unable to
locate it. When the man left, the employee watched the man get into a white truck and recorded
the truck’s make and license plate number. The description of the vehicle and the license plate

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number obtained by the employee matched Boman’s vehicle, and the employee identified
Boman at trial as the man she spoke with on January 20. The employee testified that she also
saw Boman at the post office again on January 21, that she recognized him as the same man she
spoke with on January 20, and that he was driving the same white truck both days. The post
office also received at least two phone calls on January 20 and 21 from callers inquiring about
the package. Boman’s phone records demonstrate that a call to the post office was placed from
his phone on January 21.
       On January 21, officers conducting surveillance at Duran’s residence observed Boman
arrive at the residence in a white truck. Boman entered the apartment, and left a few minutes
later. Undercover officers followed Boman from Duran’s residence to the post office. Boman
entered the post office and spoke with another postal service employee, who also identified
Boman at trial. Boman indicated that he needed to pick up a package for his friend, Jesse Duran.
Boman produced Duran’s photo identification, took possession of the package, and signed
Duran’s name to confirm receipt. A law enforcement officer followed Boman after he took the
package, and conducted a traffic stop shortly thereafter. Boman was arrested, and the package of
heroin was discovered in his truck. Boman was charged with conspiracy to traffic in heroin with
co-conspirators Jesse Duran and Vicki Ornelas.
       At trial, the district court excluded one of Boman’s witnesses because Boman had not
provided the State with adequate notice that he intended to call the witness. According to
Boman’s proffer, the witness would have testified that Boman was in Salt Lake City, Utah on
January 20, in direct contradiction to a postal service employee’s testimony that Boman was at
the post office in Boise on that date. During closing arguments, the prosecutor argued:
               . . . Mark Boman and Vicki Ornelas contacted the Post Office in order to
       ascertain the location of the package. Has that been proven beyond a reasonable
       doubt? Have you heard any evidence that Mark Boman was anywhere else?
               How would, how would . . . a postal worker, who doesn’t know Tom from
       Joe be able to get a license plate who the registered owner is Mark Boman who is
       friends with Jesse Duran who happened to be into a heroin agreement out of the
       blue? How does that happen?
               I submit it doesn’t happen. . . . You see, this isn’t a conspiracy to put
       Mark in a place that he wasn’t at. Mark was already there. He was there on the
       20th and he was there on the 21st. You know that beyond a reasonable doubt.




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(emphasis added). On appeal, Boman asserts that the district court erred by excluding his alibi
witness and that his right to receive a fair trial was violated by the prosecutor’s comments during
closing arguments which capitalized on the exclusion of the alibi testimony.
       Boman also complains of the following statements made by the prosecutor in closing:
“[Boman] signed for [the package]. He forged Jesse’s signature to get that package. He
intended to control that package.” Boman contends that it constituted misconduct when the
prosecutor asserted that Boman “forged” Duran’s signature, thereby indicating that Boman had
committed an additional crime of forgery.
                                                II.
                                            ANALYSIS
       For purposes of this appeal, we need not decide whether the district court erred by
excluding Boman’s alibi witness, or whether the prosecutor committed misconduct by arguing
that Boman had not presented an alibi and by suggesting that Boman “forged” Duran’s signature.
Assuming these acts constituted errors, we conclude that they are harmless. Error will be
deemed harmless if the reviewing court can say, beyond a reasonable doubt, that the error did not
contribute to the verdict. State v. Perry, 150 Idaho 209, 219-21, 245 P.3d 961, 971-73 (2010).
Whether trial errors could have affected the outcome of a trial generally depends, in part, upon
the strength of the properly admitted evidence of guilt. See State v. Hooper, 145 Idaho 139, 146,
176 P.3d 911, 918 (2007); State v. Gerardo, 147 Idaho 22, 27, 205 P.3d 671, 676 (Ct. App.
2009); State v. Green, 136 Idaho 553, 557-58, 38 P.3d 132, 136-37 (Ct. App. 2001).
       The State presented overwhelming evidence of Boman’s guilt. Vicki Ornelas, Duran’s
girlfriend, testified for the State. Her testimony can be summarized as follows: In December
2009, Ornelas heard Boman and Duran discuss plans to purchase approximately one ounce of
heroin. Boman and Duran pooled their money, Duran ordered the heroin from California,
Boman and Duran wired money for the purchase, and the heroin was delivered through the mail.
The same process was used for additional heroin purchases.            Ornelas overheard several
subsequent conversations in which Boman and Duran discussed pooling their money, and she
accompanied Boman and Duran to a store where they wired the money on three or four
occasions. In December 2009, Ornelas received delivery of a package mailed to the apartment
where she and Duran lived, and she watched Boman and Duran open the package and divide the
heroin it contained. Similar looking packages were delivered to the apartment approximately


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once a week, and Ornelas opened one of the packages and discovered heroin inside. Each
package contained approximately one ounce of heroin, which Boman and Duran divided equally.
Ornelas testified that the package seized by the police on January 21, 2010, appeared similar to
the other packages containing heroin. Perhaps most importantly, on January 20, Ornelas heard
Boman and Duran again discussing a package, and Boman indicated that he “wanted to go in on
it.” Ornelas explained that Boman was going to pay Duran for half of the heroin after it was
delivered.
       Testifying for the defense, Duran stated that he asked Boman to pick up the package from
the post office but that Boman did not know what the package contained. However, the State
introduced evidence that, during the entry of Duran’s guilty plea, Duran made several
incriminating statements that corroborated Ornelas’s testimony, and contradicted his own denial
of Boman’s knowledge. Duran’s previous testimony included statements that, based on Duran’s
history with Boman, Boman would have had reason to believe the package contained heroin; that
Duran had promised to give some of the heroin from the package to Boman; and that that he was
“sure [Boman] had knowledge” that a package arriving at the post office would contain heroin.
       The State also presented testimony from several postal service employees and law
enforcement officers who were involved in the investigation or who had interactions with
Boman. One postal service employee delivered Express Mail 1 packages to Duran’s apartment on
January 8, 2010, and on January 15, 2010. On January 20, 2010, the employee’s attention was
drawn to yet another Express Mail package, nearly identical to the first two, also addressed to
Duran. 2 The employee testified that he became suspicious of the packages because it was
unusual for a residential customer to receive a series of Express Mail packages, especially a
customer in a “dilapidated” apartment complex, and because the packages were “bulged” and felt
“squishy,” which was unusual for Express Mail. On January 20, post office employees received
at least two calls, one from a man, and one from a woman, inquiring about the package. Both
callers apparently left Boman’s phone number as a contact number. One employee testified that


1
       The employee explained that Express Mail is the postal service’s only guaranteed
overnight delivery service.
2
        The State also introduced business records from the post office indicating that packages
sent from California were delivered to Duran’s address in November and January.


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Boman attempted to pick up the package on January 20, and she obtained an accurate description
of Boman’s vehicle including the license plate number. On January 21, law enforcement officers
observed Boman briefly visit Duran’s residence before going to the post office, 3 and several
postal service employees and law enforcement officers testified that Boman retrieved the
package of heroin at the post office. The officer who followed Boman from the post office and
initiated a traffic stop testified that despite use of the patrol car’s overhead lights and siren,
Boman did not stop until another police vehicle forced him off the road.
       In light of the evidence presented at trial--particularly the disinterested postal employee’s
testimony that she saw Boman on January 20, and her accurate description of his vehicle,
including the license plate number--it is likely that the use of the excluded alibi witness would
only have discredited the defense in the eyes of the jury. Even highly credible evidence that
Boman was in Utah on January 20, 2010, would not have been particularly important for two
reasons. First, Ornelas testified that on January 20, she heard Boman and Duran discussing an
agreement to split a package of heroin. Even if we assume that this conversation was by
telephone and that Boman was then in Utah, his presence in Utah during the conversation would
not relieve him of criminal liability when he then returned to Boise and retrieved the package in
furtherance of the conspiracy. 4 Second, the evidence that Boman and Duran had ordered and
received heroin on a near-weekly basis demonstrated an agreement through the course of their
conduct over the previous month, making Boman’s location on January 20 of little significance.
       With respect to the prosecutor’s comments during closing arguments, we note that there
was no objection at trial, and thus Boman carries the burden of proving there is a reasonable
possibility that the error contributed to the verdict. Perry, 150 Idaho at 226, 245 P.3d at 978. He
has not done so here. Although the prosecutor indicated that Boman “forged” Duran’s signature,

3
         Ornelas testified that on January 20, she and Duran, who are both heroin addicts,
arranged to purchase two ounces of heroin from Boman, and that on January 21, Boman stopped
at their apartment to give them the heroin before going to the post office.
4
         Idaho Code § 18-202 provides: “The following persons are liable to punishment under
the laws of this state: (1) All persons who commit, in whole or in part, any crime within this
state. . . . (3) All who, being out of this state, cause or aid, advise or encourage, another person
to commit a crime within this state and are afterwards found therein.” See also Hyde v. United
States, 225 U.S. 347, 363 (1912) (“[A] conspiracy is not necessarily the conception and purpose
of the moment, but may be continuing. If so in time, it may be in place,--carrying to the whole
area of its operations the guilt of its conception . . . .”).

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when viewed in context, the poorly worded comment conveyed only that Boman signed Duran’s
name instead of his own. The prosecutor did not at any other point refer to the signature as a
forgery or suggest that Boman’s signing Duran’s name constituted a crime in itself.          The
statement of which Boman complains, though inappropriate, was a passing remark, and jurors
knew that the evidence showed that Boman had signed Duran’s name with Duran’s permission.
We conclude that this remark would have had no influence on a rational juror’s determination of
whether Boman was guilty of the charged offense of conspiracy to traffic in heroin.
         Because the evidence of Boman’s guilt was so overwhelming, we are convinced beyond a
reasonable doubt that the exclusion of Boman’s “alibi” witness and the prosecutor’s comments in
closing argument, even if erroneous, did not contribute to the guilty verdict or deprive Boman of
a fair trial.
                                               III.
                                        CONCLUSION
         Even if we assume the district court erroneously excluded a witness from trial and that
the prosecutor committed misconduct during closing argument, the alleged errors were harmless
whether viewed independently or cumulatively. Accordingly, the judgment of conviction is
affirmed.
         Judge GUTIERREZ and Judge MELANSON CONCUR.




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