               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 46262

STATE OF IDAHO,                                 )
                                                ) Opinion Filed: March 10, 2020
       Plaintiff-Respondent,                    )
                                                ) Karel A. Lehrman, Clerk
v.                                              )
                                                )
ABDON ANDRE SAENZ,                              )
                                                )
       Defendant-Appellant.                     )
                                                )

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

       Judgment of conviction for aggravated battery, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant. Brian R. Dickson argued.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
                 ________________________________________________

HUSKEY, Chief Judge
       Abdon Andre Saenz appeals from his judgment of conviction for aggravated battery.
Saenz argues the prosecutor’s references to facts not in evidence and reliance on
misrepresentations of facts during closing arguments amounted to fundamental error. Because
the prosecutor did not misrepresent facts and any reference to facts not in evidence did not
constitute fundamental error, we affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       One evening while drinking and socializing in a bar, Saenz walked outside with a glass of
beer. The bar did not have an outside patio and to have alcohol outside of the building was in
violation of the bar’s policies and the city’s ordinance. The bartender went outside, explained to
Saenz that alcohol was not allowed outside, confiscated Saenz’s glass, and returned to the bar.


                                                1
Saenz followed the bartender inside and the two continued to discuss the events that had just
transpired.     Rodolfo, a man who was drinking and socializing with Saenz, joined the
conversation.     The conversation ended amicably, with Saenz and Rodolfo shaking the
bartender’s hand.
       Later the same evening, Saenz exited the bar with a glass of alcohol in each hand and
Rodolfo followed, empty-handed. A customer gestured to the bartender that alcohol was outside
the building, and the bartender left to assess the situation. The bartender testified that, although
multiple people were outside, only Saenz was holding glasses of alcohol. When the bartender
reminded Saenz that no alcohol could be outside the building, the bartender testified Saenz threw
one of the glasses at him, missing him as he ducked. The bartender testified that as he lifted his
head back up, Saenz smashed another glass directly into his face causing facial and dental
damage. The State charged Saenz with aggravated battery, Idaho Code § 18-907.
       During the three-day jury trial, twelve witnesses testified and thirty-five exhibits were
admitted, including thirty-eight minutes of audio recordings of interviews conducted by officers
investigating the battery, fifty-six minutes of video footage from security cameras located inside
the bar, and eighty seconds of partially redacted body camera recordings from officers who
responded to the incident. Although Saenz did not testify at trial, the prosecution admitted audio
recordings of an interview between an officer and Saenz, which recorded the following:
       Saenz:   I remember, like I told you before, like we had that first incident.
                Second incident, I remember, now I [inaudible] but I remember going
                outside, I was already in the car, or getting ready to go in the car, I don’t
                know whose car it was, I’m not going to lie about that.
       Officer: Ok. Was it a Cadillac?
       Saenz: I don’t remember. I just remember it was dark outside. But we were
                already in the street.
       Officer: Ok.
       Saenz: And, umm, he came at me. I don’t know if he came at me, I don’t know,
                I don’t remember his aggression or anything. But, umm, you know.
                [Inaudible], I don’t know, like I said. I don’t remember hitting him. I
                looked through those pictures, man, after you told me, and you showed
                me, and then I went looking for it. His face is messed up pretty bad. I
                feel bad if I did do it but, like I said, if I did do it I should have had some
                marks on me also.
       During closing argument, the prosecutor re-played the audio of Saenz’s interview and
proceeded to paraphrase the recording, stating:



                                                  2
               Did you catch that? [Saenz] says: I was leaving, I was at the car, and he
       came at me. He’s talking about [the bartender]. Remember up until now this
       didn’t happen, this second encounter. But he says: He came at me. He confirms
       that outside the bar [the bartender] and him come together. He come [sic] at me.
       That’s what he says. I don’t remember his level of aggression. I don’t know if he
       was aggressive. In other words, he’s saying: I don’t know think [sic] he
       approached me aggressively, but he came at me. He confirms that in fact there
       was a second encounter between [the bartender] and him as he was leaving the
       bar. He messed up there.
               You notice he doesn’t say that he came at Rodolfo or he came at Vanessa
       or I saw him approach someone else. No. He came at me. Whoa. He just
       messed up. He just confirmed everything we’ve been trying to argue about
       whether the defendant and [the bartender] came together during the second
       encounter. He just told you that happened. He just confessed that happened. He
       messed up. But now you know in his own words that second encounter happened.
       That’s what we’ve been arguing about; right? He just tells you: Yep, that
       happened.
       Saenz’s counsel responded to the prosecutor’s statements during his closing argument,
asking the jury to consider the defendant’s statements in their entire context, but admitting that
Saenz acknowledged a second encounter with the bartender:
               And [Saenz] even remembers. The guy came at me. I didn’t know what
       to do. A guy came at me. Now he’s confirmed the second one. Guy came at me.
       Doesn’t say: I bashed him in the face with glass. Doesn’t say: I hit him with the
       glass. He does admit: I may have punched him. But he also doesn’t say: We
       were right here and right here. We were right next to each other. We did this.
       We did that.
               So just because myself or [the prosecutor] says something, it’s up to you
       to actually make the determination as to what the person said, what impact it has,
       whether or not you believe it is an admission to aggravated battery or not.
       The prosecutor then made a rebuttal argument, which substantively consisted of the
following:
               I was sitting in my office, and I had listened to hours of interviews. I had
       tried to describe the details of what people said. I read all the police reports and
       watched all the videos. And I was sitting there with all of these facts bouncing
       around in my head. And the thought occurred to me: Is there one person, one
       person who says the defendant wasn’t there? The defendant didn’t do this. Or it
       was somebody else. Not one.
               And so as I listen to the defense go through some of those same facts, I
       come back with the very same thing. Not one person says the defendant didn’t do
       this. Or he wasn’t there. Or identifies somebody else as doing this. Just him.
       The person who admits to Rodolfo that he was pissed about the way he was
       treated. And the person who slips up and admits there was a second encounter
       when I was leaving and [the bartender] came at me. The person with the beer

                                                3
       glasses. Not that he came with someone else. Not that he came with Rodolfo.
       He came at me. And when you have that, you have one person. And I’m asking
       you to find him guilty.
       Saenz’s counsel offered no objection to the prosecutor’s rebuttal closing argument. After
deliberation, the jury found Saenz guilty of aggravated battery.        The district court entered
judgment and imposed a unified sentence of ten years, with three years determinate. Saenz
timely appeals.
                                                 II.
                                   STANDARD OF REVIEW
        Generally, issues not raised below may not be considered for the first time on appeal.
State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). In order to obtain relief under the
fundamental error doctrine, the defendant must demonstrate three things. State v. Miller, 165
Idaho 115, 119, 443 P.3d 129, 133 (2019). First, the defendant must show that one or more of
the defendant’s unwaived constitutional rights were violated. Id. Second, the error must be clear
and obvious, meaning the record must demonstrate evidence of the error and evidence as to
whether or not trial counsel made a tactical decision in failing to object. Id. Third, the defendant
must demonstrate that the error affected the defendant’s substantial rights, which means the error
identified in the first and second prongs of the test actually affected the outcome of the trial. Id.
at 119-20, 443 P.3d at 133-34.
                                                III.
                                           ANALYSIS
       On appeal, Saenz alleges the State committed misconduct rising to the level of
fundamental error in its closing argument by: (1) impermissibly arguing facts not in evidence by
referencing interviews, videos, and police reports that were not admitted for the jury’s
consideration; and (2) misrepresenting facts by describing Saenz’s statement that “[the
bartender] came at me” as a confession and failing to put the statement in the proper context.
The State argues Saenz’s assertions fail every prong of the fundamental error analysis.
A.     Saenz Has Not Shown His Counsel’s Lack of Objection to the Prosecutor’s
       References to Facts Not in Evidence Was Not Tactical
       Saenz asserts the prosecutor’s references to interviews, videos, and police reports that
were not in evidence constituted prosecutorial misconduct and amounted to fundamental error
because: (1) they impacted Saenz’s right to a fair trial under the Fourteenth Amendment of the


                                                 4
United States Constitution; (2) they constituted clear error under State v. Branigh, 155 Idaho
404, 313 P.3d 732 (Ct. App. 2013); (3) defense counsel’s failure to object was not tactical
because the prosecutor’s statements implicated Saenz’s alternative-perpetrator theory and, as the
statements occurred during the rebuttal argument, a contemporaneous objection was the only
means by which the defense could address the perceived prosecutorial misconduct; and (4) the
statements affected the trial’s outcome because they directly related to the core of Saenz’s
defense. 1
        The State argues the prosecutor’s reference to the interviews, videos, and police reports
were not objectionable, and thus, could not violate Saenz’s constitutional rights. 2 Alternatively,
the State contends, even if the statements could be construed as an assertion of facts not in
evidence, there is no indication that they rise to the level of a constitutional violation, constitute
clear error, or impacted the trial’s outcome.
        Even if the prosecutor’s statements constituted error, which we do not address, Saenz
cannot establish prong two or three of the fundamental error analysis. The federal court’s
development of the plain error standard developed from a recognition of the important
considerations underlying the contemporaneous objection requirement and a defendant’s right to
due process. United States v. Atkinson, 297 U.S. 157, 159 (1936). The United States Supreme
Court recognized the limited scope of plain error review when it articulated the multi-prong
standard of review in United States v. Olano, 507 U.S. 725, 736 (1993). The Court noted that
even when a defendant shows: (1) error; (2) that is plain; and (3) that affects substantial rights,
the appellate court should only correct the error when it “seriously affects the fairness, integrity
or public reputation of judicial proceedings.” Id. This standard intentionally places a heavy



1
        Saenz additionally argues the misconduct impacted the trial’s outcome because the
prosecutor essentially asked the jury to overlook any holes in the State’s case because interviews,
polices reports, and videos that were not admitted as evidence support Saenz’s guilt. However, it
does not appear from a reading of the prosecutor’s statements that the prosecutor made this
assertion and, therefore, this claim will not be addressed.
2
       The State contends that if the interviews, videos, and police reports in question supported
Saenz’s claim of an alternative-perpetrator, Saenz would have sought to enter the evidence
during the trial. Therefore, the State argues the prosecutor’s statements did not constitute a
reference to facts not in evidence, but instead were permissible arguments concerning the
absence of evidence to support certain facts under State v. Mendoza, 151 Idaho 623, 262 P.3d
266 (Ct. App. 2011).
                                                  5
burden on defendants: “[m]eeting all four prongs is difficult, as it should be.” Puckett v. United
States, 556 U.S. 129, 135 (2009) (internal quotation omitted).
       The Idaho Supreme Court modeled Idaho’s fundamental error standard on the United
States Supreme Court’s articulation of plain error review, holding that it struck an appropriate
balance of the interests of the State and the defendant. State v. Perry, 150 Idaho 209, 226, 245
P.3d 961, 978 (2010). In replicating this balancing, Perry sought to limit the cases in which the
fundamental error standard would apply and further constrained review of unobjected to error to
a narrower set of claims than the federal plain error standard. Id. (holding “contrary to federal
plain error rule, in Idaho a trial error that does not violate one or more of defendant’s
constitutionally protected rights is not subject to reversal under fundamental error doctrine”).
       In Miller, the Idaho Supreme Court further established that fundamental error claims of
unobjected-to error should be limited to a narrow category of cases by clarifying the second and
third prongs of the fundamental error standard. The Court held that under the second prong a
defendant must show the appellate record contains: (1) clear and obvious evidence of the error;
and (2) evidence as to whether or not trial counsel made a tactical decision not to object. Miller,
165 Idaho at 119, 443 P.3d at 133. And, under the third prong, the appellate record must clearly
show that the error actually affected the outcome of the proceedings. Id. at 119-20, 443 P.3d at
133-34.
       The Court’s clarification of the fundamental error analysis reflects the understanding that
20/20 hindsight of presumptively strategic decisions, like “[c]ounsel’s choice of witnesses,
manner of cross-examination, and lack of objection to testimony,” is often inappropriate. State v.
Abdullah, 158 Idaho 386, 500, 348 P.3d 1, 115 (2015). This is because there are legitimate
reasons why counsel may make the strategic decision to remain silent at various stages of the
trial or not object to specific pieces of evidence.       For example, counsel’s removal of a
problematic potential juror from the venire risks that an even less acceptable individual moves
onto the jury panel, State v. Adams, 147 Idaho 857, 861, 216 P.3d 146, 150 (Ct. App. 2009),
counsel’s continuous objections to the State’s presentation of evidence risks equally aggressive
tactics being used in return, and counsel’s objection to a particularly unfavorable piece of
testimony risks highlighting the statement to the jury. See State v. Hall, 163 Idaho 744, 826, 419
P.3d 1042, 1124 (2018). Thus, because calculation and chance are inherent in all strategic



                                                 6
decisions, trial counsel must weigh the possibility that the strategy utilized may not ultimately
pay off for the defendant, but the reward is worth the risk.
        Both the United States Supreme Court and the Idaho Supreme Court have stated that
claims of unobjected-to error should be the exception, not the rule. However, since Perry,
asserting claims of fundamental error have become the rule, not the exception, particularly
claims of prosecutorial misconduct in closing argument. A claim of this type poses challenges
for the appellant on direct review because when an appellant asserts fundamental error, the
appellate court is asked to determine whether trial counsel’s inaction was the result of a strategic
or tactical decision, often without the aid of a developed record.
        In determining whether the lack of an objection by trial counsel was tactical, the court
begins with the strong presumption that counsel was competent and trial tactics were based on
sound legal strategy. See State v. Dunlap, 155 Idaho 345, 383, 313 P.3d 1, 39 (2013); Cook v.
State, 157 Idaho 775, 778, 339 P.3d 1179, 1182 (Ct. App. 2014). The appellate court does not
review the presumptively strategic or tactical decisions “unless those decisions are based on
inadequate preparation, ignorance of the relevant law, or other shortcomings capable of objective
review.” Johnson v. State, 156 Idaho 7, 11, 319 P.3d 491, 495 (2014) (internal quotation
omitted). The Idaho Supreme Court has articulated a non-exclusive list of examples of generally
strategic decisions. See Abdullah, 158 Idaho at 500, 348 P.3d at 115 (“counsel’s choice of
witnesses, manner of cross-examination, and lack of objection to testimony fall within the area of
tactical, or strategic decisions”).
        The defendant’s opinion that the absence of an objection was not tactical is not enough to
overcome the presumption of competence. Miller, 165 Idaho at 119, 443 P.3d at 133. Rather,
there must be actual evidence in the record that demonstrates the lack of objection was not
tactical; in essence, rebutting the presumption of competence. See id. This application of the
second prong of the Perry standard is consistent with the constrained and narrow review of when
relief is warranted for unobjected-to error as articulated by the United States Supreme Court in
Puckett and the Idaho Supreme Court in Perry and Miller. This clarifies what the appellant must
establish on direct review. The only evidence that would support appellant’s claim of clear error
is evidence that the absence of an objection was not strategic or tactical. Requiring evidence in
the record to support the second prong of Perry as clarified in Miller explains why appellant’s
opinion (without more) is insufficient to establish clear error in the record.

                                                  7
       At its core, a claim of unobjected-to error is as much about what defense counsel did not
do as it is about what the State did. A lack of a sufficiently developed factual record generally
precludes direct review of such claims. Sparks v. State, 140 Idaho 292, 296, 92 P.3d 542, 546
(Ct. App. 2004). Like claims of ineffective assistance of counsel, establishing prong two of the
Perry standard will necessarily involve inquiring into the behavior and motivations of trial
counsel. These inquiries will usually require factual development of the record, and thus, like
post-conviction claims, are not suited to direct review. This is not to say a defendant could never
establish fundamental error. See State v. Medina, 165 Idaho, 501, 509, 447 P.3d 949, 957 (2019)
(holding there was not conceivable strategy to support failure to object to erroneous jury
instruction because instruction made it vastly easier for jury to find defendant guilty). However,
in those cases where the factual record needs to be developed, the forum for review shifts from
direct review to post-conviction review. See Perry, 150 Idaho at 229, 245 P.3d at 981. Here, the
record is insufficient for Saenz to establish his claim.
       Based on the strong presumption that trial counsel was competent and his behaviors were
the result of strategic or tactical decisions, Saenz must be able to point to evidence in the record
that affirmatively establishes the opposite in order to meet prong two of the fundamental error
analysis. If the record does not contain such evidence, Saenz cannot support his claim, and the
claim is more appropriately addressed through a petition for post-conviction relief. Perry, 150
Idaho at 229, 245 P.3d at 981. Saenz has not met his burden under the second prong of the
fundamental error analysis because the record contains evidence that, like in Perry, trial counsel
made a strategic decision not to object.
       The Idaho Supreme Court held a record contained evidence of a strategic decision when
defense counsel objected at least once when faced with successive opportunities to object to
prosecutorial misconduct. Id. In Perry, because defense counsel recognized the benefit of a
timely objection, but failed to object to other instances of similar conduct, the Court held “[i]t
appears to be a reasonable possibility, under the facts of this case, that defense counsel’s failure
to object to the prosecutor’s improper conduct . . . was a strategic decision.” Id.
       Here, the prosecutor’s closing argument stated that he listened to “hours of interviews”
and “read all the police reports and watched all the videos” when no police reports had been
submitted as evidence and portions of the interviews and the videos had been redacted or not
played for the jury. The prosecutor proceeded to tell the jury these documents contained no

                                                  8
corroboration of Saenz’s theory of defense. Even if the State erred when it referred to facts that
were not presented at trial, Saenz cannot establish a claim of fundamental error.
       During the State’s closing argument, the record indicates defense counsel utilized
objections when counsel found them appropriate, particularly concerning facts that undermined
Saenz’s innocence. For example, when the prosecutor emphasized that Saenz did not proclaim
his innocence to an interviewing officer, but rather seemed resolved to the likelihood of the State
issuing a warrant for his arrest, Saenz’s counsel objected to the statements as speculative. The
district court overruled Saenz’s objection. The prosecutor later referenced the facts not in
evidence at issue here. The facts again undermined Saenz’s innocence and Saenz’s counsel
remained silent.    Because Saenz’s counsel demonstrated a willingness to object to some
statements during closing arguments that spoke to Saenz’s innocence, we cannot say the record
clearly establishes that trial counsel’s silence in other instances was not strategic.
       Saenz argues the lack of objection was not strategic because the prosecutor’s comments
directly undermined the core of Saenz’s defense and the statements were made without the
opportunity for later rebuttal. However, this is not entirely correct nor do these facts alone
overcome the presumption that defense counsel’s silence was strategic. Defense counsel could
have objected during the prosecutor’s rebuttal argument, just as counsel did during the
prosecutor’s initial closing argument.      Additionally, in executing his trial strategy, defense
counsel may not have wanted to bring increased attention to a singular reference to facts not in
evidence just moments from the commencement of jury deliberations. As Miller clarified,
appellate counsel’s opinion that the decision not to object could not have been tactical is not
enough to satisfy the second prong of the fundamental error analysis. Miller, 165 Idaho at 115,
443 P.3d at 133. Instead, the record must include evidence that trial counsel did not make a
tactical decision to not object. Because the record includes evidence that defense counsel
utilized strategy in its objections during closing arguments and because Saenz points to no
evidence that overcomes the presumption that trial counsel’s silence was strategic, Saenz failed
to meet the burden of establishing clear error in the record under the second prong of the
fundamental error analysis. 3


3
        Saenz contends this Court held in State v. Branigh, 155 Idaho 404, 313 P.3d 732 (Ct.
App. 2013) that when the prosecutor referred to evidence not admitted at trial, the record showed
no strategic reason for counsel’s lack of an objection. However, the analysis in Branigh rested
                                                   9
B.     Saenz Cannot Establish the Error Actually Affected the Outcome of the Trial
       However, even if Saenz was able to meet his burden of establishing clear error in the
record, Saenz has not shown this error actually affected the outcome of the trial as required under
the third prong of the fundamental error analysis. Miller, 165 Idaho at 119-20, 443 P.3d at 133-
34.
       Courts have consistently held prosecutorial misconduct during closing arguments will
rise to the level of fundamental error only if the misconduct was so egregious or inflammatory
that any ensuing prejudice could not have been remedied by a curative jury instruction informing
the jury to disregard the comments. State v. Gross, 146 Idaho 15, 18, 189 P.3d 477, 480 (Ct.
App. 2008); see also State v. Parker, 157 Idaho 132, 146, 334 P.3d 806, 820 (2014); State v.
Cortez, 135 Idaho 561, 565, 21 P.3d 498, 502 (Ct. App. 2001). “The relevant question is
whether the prosecutors’ comments so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” State v. Lankford, 162 Idaho 477, 497, 399 P.3d 804, 824
(2017) (internal quotation omitted). Meeting this standard demonstrates the misconduct actually
impacted the trial because “even a timely objection to such inflammatory statements would not
have cured the inherent prejudice.” Gross, 146 Idaho at 18, 189 P.3d at 480.
       When assessing the impact of a remedial jury instruction “this Court presumes the jury
followed the court’s jury instructions,” Miller, 165 Idaho at 118, 443 P.3d at 136, even when the
prosecutorial misconduct occurs after the jury receives its instructions from the trial court. See
State v. Tupis, 112 Idaho 767, 773, 735 P.2d 1078, 1084 (Ct. App. 1987). Because even
persistent instances of prosecutorial misconduct have the potential to be remedied through a
single curative instruction, see Lankford, 162 Idaho at 499-501, 399 P.3d at 826-828, a defendant
may shoulder a heavier burden when the complained of misconduct consisted of a single,
isolated occurrence. See State v. Alwin, 164 Idaho 160, 173, 426 P.3d 1260, 1273 (2018)
(highlighting trial court’s jury instruction cured any resulting prejudice from prosecutorial




almost entirely on the third prong of the fundamental error analysis; its analysis of whether the
error was clear from the appellate record consisted entirely of the sentence “Branigh has also
shown that the error plainly exists.” Id. at 418, 313 P.3d at 746. Branigh is not persuasive,
much less dispositive, in its application. In Branigh, we held Branigh failed to establish the error
was harmless because of “the overwhelming evidence of Branigh’s guilt.” Id.
                                                10
misconduct because comment constituting misconduct was “brief, and occurred on a single,
isolated occasion”).
       Further, the timing of the alleged prosecutorial conduct by itself is not enough to show
the conduct impacted the trial’s outcome or establish that it is beyond the reach of a curative jury
instruction.   This Court has acknowledged the potential increased impact prosecutorial
misconduct in a rebuttal closing argument may have. See State v. Troutman, 148 Idaho 904,
909-10, 231 P.3d 549, 554-55 (Ct. App. 2010). However, just because prosecutorial misconduct
occurs in the rebuttal closing argument does not mean that it actually impacted the trial’s
outcome or is outside the reach of a remedial instruction. See State v. Godwin, 164 Idaho 903,
928-29, 436 P.3d 1252, 1277-78 (2019); State v. Severson, 147 Idaho 694, 720, 215 P.3d 414,
440 (2009); Tupis, 112 Idaho at 773, 735 P.2d at 1084.
       Additionally, courts have held a proper jury instruction may cure even prosecutorial
misconduct that had the potential to impact the core issue of a case. See Godwin, 164 Idaho at
928-29, 436 P.3d at 1277-78 (2019) (holding court’s instructions informing jury that attorney’s
comments were not evidence helped mitigate three instances of prosecutor improperly vouching
for reliability of State’s witnesses’ testimony that undermined defendant’s principle claim of
self-defense); Alwin, 164 Idaho at 173, 426 P.3d at 1273 (holding prosecutorial misconduct that
improperly undercut defendant’s expert testimony on reliability of identifications, where main
issue at trial concerned reliability of officer’s identification, could be cured by jury instruction
stating closing arguments of attorneys are not evidence). Therefore, neither the timing nor the
substance of the prosecutorial misconduct is necessarily dispositive when assessing the effect of
a remedial jury instruction.
       Here, Saenz has not met his burden to show the prosecutor’s isolated reference to facts
not in evidence during closing argument actually impacted the trial because the district court
repeatedly provided instructions to the jury about what was, and was not, proper evidence for
consideration. First, the district court instructed the jury it could not consider closing arguments
as evidence, bookending the trial process with such statements. Before opening arguments, the
district court stated that after the close of evidence, the parties would present closing arguments:
“In their closing arguments they will summarize the evidence to help you understand how it
relates to the law. Just as the opening statements are not evidence, neither are the closing
arguments.” At the close of evidence, the court again instructed the jury: “Certain things you

                                                11
have heard or seen are not evidence, including: [] arguments and statements by the lawyers. The
lawyers are not witnesses. What they say in their opening statements, closing arguments, and at
other times is included to help you interpret the evidence but is not evidence.”
       Additionally, the district court instructed the jury that they “may consider only the
evidence admitted in this trial. The evidence consists of the testimony of the witnesses, the
exhibits offered and received, and any stipulated or admitted facts.” The court specifically
cautioned the jury to be careful when considering redacted evidence:            “You saw a video
recording with audio and heard audio recordings. Certain recordings may have been redacted.
You are not to concern yourself with the redactions or speculate as to what may have been
removed.” Saenz has not presented argument that the jury did not follow the instructions of the
trial court. Instead, Saenz argues the prosecutor’s statements concerning evidence not presented
at trial actually affected the trial’s outcome because the comments related to the core question of
Saenz’s guilt and were made in the rebuttal closing, right before the jury began deliberations.
We find this argument unpersuasive.
       During the three-day trial, the prosecutor referenced the facts at issue on a single, isolated
occurrence, while the district court instructed the jury throughout the trial not to consider
statements made by attorneys in closing arguments as evidence. Further, the court instructed the
jury that only evidence admitted at trial could be considered, and the court specifically instructed
the jury to refrain from any speculation as to redacted or undisclosed portions of the video and
audio recordings. Therefore, Saenz has not shown the prosecutor’s singular reference to facts
not in evidence was so egregious or inflammatory that any ensuing prejudice could not have
been remedied by the district court’s jury instructions.
       As this case demonstrates, claims of fundamental error involving allegations of
prosecutorial misconduct in closing argument will rarely be able to satisfy the second and third
prongs of the Perry/Miller analysis because seldom will the record contain evidence to overcome
the presumption that trial counsel’s lack of objection was strategic and that the jury did not
follow the instructions of the trial court, both of which are necessary to prevail on the claim.
C.     Saenz Has Not Shown That the State Misrepresented Facts During Its Closing
       Argument
       Saenz argues the prosecutor mispresented evidence by stating that Saenz “confessed” that
“the [bartender] came at him.” Saenz asserts the State improperly construed Saenz’s statements
as a confession and failed to put it in proper context by excluding his contemporaneous statement
                                                 12
of “I don’t know if he came at me” in its closing arguments. The State asserts there was no
misrepresentation and Saenz cannot establish fundamental error.
       The first step in a fundamental error analysis for prosecutorial misconduct “is to
determine whether the alleged conduct actually rises to the level of prosecutorial misconduct.”
Lankford, 162 Idaho at 494, 399 P.3d at 821. Closing argument serves to sharpen and clarify the
issues for resolution by the trier of fact in a criminal case. Phillips, 144 Idaho at 86, 156 P.3d at
587. Its purpose is to enlighten the jury and to help the jurors remember and interpret the
evidence. Id.; State v. Reynolds, 120 Idaho 445, 450, 816 P.2d 1002, 1007 (Ct. App. 1991).
Although a closing argument may not misrepresent or mischaracterize the evidence, Phillips, 144
Idaho at 86, 156 P.3d at 587, “[b]oth sides have traditionally been afforded considerable latitude
in closing argument to the jury and are entitled to discuss fully, from their respective standpoints,
the evidence and the inferences to be drawn therefrom.” 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. If a statement is a reasonable inference from the
evidence presented, it is not a misstatement of evidence and therefore will not constitute
prosecutorial misconduct. Miller, 165 Idaho at 119, 443 P.3d at 137.
       In support of Saenz’s assertion that the prosecutor’s statement constituted a
misrepresentation of evidence, Saenz compares the prosecutor’s statements suggesting that he
“confessed” that “[the bartender] came at him” to the statements made by the prosecutor in State
v. Beebe, 145 Idaho 570, 575, 181 P.3d 496, 501 (Ct. App. 2007). In Beebe, the defendant was
charged with attempted robbery, an offense that required the State to establish the defendant
intended to use force or fear to overcome the will of the victim. The defendant argued that, in
light of his severe mental illness, he did not possess the requisite state of mind necessary to be
found guilty of the offense. Despite no testimony that the defendant stated he intended to
commit robbery or to use force or fear to commit the robbery, the prosecutor said the defendant
repeatedly, persistently, and consistently confessed to having the disputed intent. This Court
held these statements by the prosecutor constituted misrepresentation of evidence. Id.
       Here, unlike Beebe, the prosecutor did not use Saenz’s statement that “[the bartender]
came at me” for a disputed fact. Instead, Saenz’s statement that “[the bartender] came at me”
was referred to by both parties throughout closing arguments for the same underlying premise;

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after the bartender discussed the policy prohibiting alcohol outside the bar with Saenz, the two
had a second encounter. In closing argument, the prosecutor stated that although Saenz initially
indicated he never engaged with the bartender after the first encounter, Saenz later confirmed a
second encounter.     During Saenz’s closing argument, his counsel acknowledged Saenz’s
statements that “[the bartender] came at me” showed Saenz recalled engaging in a second
encounter with the bartender: “[a]nd [Saenz] even remembers. The guy came at me. I didn’t
know what to do. A guy came at me. Now he’s confirmed the second one. Guy came at me.”
Despite Saenz’s characterizations of the arguments on appeal, the prosecutor’s closing argument
did not state that Saenz confessed to the crime or portray that Saenz’s statement “[the bartender]
came at me” stood for more than what Saenz’s own counsel admitted; a second encounter
occurred between Saenz and the bartender. Therefore, Saenz failed to show the statements at
issue constituted prosecutorial misconduct.
                                               III.
                                        CONCLUSION
       Saenz cannot show clear error in the record related to the allegations that the State
referenced facts not in evidence because any error was neither clear from the record nor so
egregious or inflammatory that any ensuing prejudice could not have been remedied by the
district court’s jury instructions.   Further, the prosecutor’s comments regarding Saenz’s
statements acknowledging a second encounter between himself and the victim did not constitute
prosecutorial misconduct. Accordingly, Saenz’s judgment of conviction is affirmed.
       Judge GRATTON and Judge LORELLO CONCUR.




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