                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 39249

STATE OF IDAHO,                                     )
                                                    )        Boise, April 2014 Term
     Plaintiff-Respondent,                          )
                                                    )        2015 Opinion No. 71
v.                                                  )
                                                    )        Filed: July 21, 2015
DANIEL EDWARD EHRLICK, JR.,                         )
                                                    )        Stephen Kenyon, Clerk
     Defendant-Appellant.                           )
                                                    )        SUBSTITUTE OPINION, THE
                                                    )        COURT’S PRIOR OPINION
                                                    )        DATED APRIL 27, 2015 IS
                                                    )        HEREBY WITHDRAWN.
                                                    )

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

       The judgment of conviction for first-degree murder and failure to report a death to law
       enforcement is affirmed.

       Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Elizabeth
       Allred argued.

       Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K.
       Jorgensen argued.
            _______________________________________________

HORTON, Justice.
       Daniel Ehrlick appeals from his conviction for the first-degree murder of a child and the
failure to report the death to law enforcement. On appeal, Ehrlick alleges that the trial court
committed multiple errors in the admission of evidence and that the prosecution violated his
Fourteenth Amendment right to a fair trial by committing multiple acts of prosecutorial
misconduct. We affirm.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
       On July 24, 2009, at 10:11 p.m., the Ada County Sheriff’s dispatch received an
emergency call from Ehrlick reporting that R.M., the eight-year-old son of his live-in girlfriend,
Melissa Jenkins, was missing. Ehrlick told dispatchers that R.M. was last seen at 7:00 p.m. on

                                                1
July 24, he had been searching for R.M. for several hours, and everyone was telling him that
R.M. was at a birthday party. In the ensuing days, an extensive search was launched to find R.M.
The searchers included members of several law enforcement agencies and dozens of citizen
volunteers. R.M.’s body was found on August 3, 2009, floating face down in the New York
Canal. A large rock was stuffed into a closed cargo pocket of his pants. No evidence was offered
as to how, or precisely when, R.M.’s body was placed in the canal. R.M.’s corpse exhibited
extensive injuries, including multiple compression injuries to the abdomen and a blow to the
head. Both the compression injuries and the head injury were potentially fatal wounds on their
own, but would not have resulted in instantaneous death. The State’s forensic pathologist, Dr.
Glen Groben, testified that R.M.’s death was caused by blunt force trauma to the head and torso
due to an assault.
           During the summer months of 2009, R.M. was residing with Jenkins and Ehrlick at the
Oak Park Village Apartment Complex. The complex consists of several large apartment
buildings, a central office/club house, and multiple community areas, including a swimming
pool, park, and playground. The complex is located about a quarter-mile from the New York
Canal.
           As time passed, investigators began to suspect Ehrlick and Jenkins were involved in
R.M.’s disappearance. Investigators searched the couple’s apartment on July 30 and 31, finding a
piece of paper taped to a wall which concealed a hole in the drywall. Considering this possible
evidence, investigators cut a section of sheetrock containing the hole out of the wall.
Investigators eventually had the section of sheetrock scanned in order to create a three
dimensional plastic model that was introduced at trial. Investigators suspected that the hole was
created when Ehrlick slammed R.M.’s head into the wall. 1
           On August 18, 2009, an Ada County grand jury returned an indictment charging Ehrlick
with first-degree murder and failure to report a death to law enforcement. The matter proceeded
to trial. On June 30, 2011, the jury unanimously found Ehrlick guilty of both charges. The
district court sentenced Ehrlick to two fixed consecutive life sentences. Ehrlick timely appealed.
A. The Birthday Party.
           At trial, and in the parties’ appellate arguments, there was extensive discussion regarding
the occurrence or non-occurrence of a birthday party somewhere within the apartment complex

1
    Ehrlick provided varying explanations about the cause of the hole in the wall.

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on July 24. Accordingly, a somewhat detailed factual background may assist in understanding
the parties’ arguments as they relate to the occurrence or non-occurrence of a birthday party on
July 24.
         The first mention of the birthday party came in Ehrlick’s call to 911 on the evening of
July 24. Ehrlick told the dispatcher, “I’ve been out looking for a couple of hours around our
apartment complex …. Everybody keeps directing me to the–a birthday party. That’s where
everybody’s saying that he’s at but I can’t find this birthday party or nothing.” When officers
subsequently contacted Ehrlick, he told Officer Guy McKean that R.M. had come into the
apartment from playing outside three times between 7:00 p.m. and 7:30 p.m. to ask if he could
go to a birthday party, and each time Ehrlick told R.M. that he could not. Around 10:00 p.m. on
July 24, a security guard for the complex heard Ehrlick by the community pool asking residents
if they knew of a birthday party, and if so, where it might be.
         At trial, there was no evidence that a birthday party took place within the apartment
complex on July 24. The State’s theory throughout the trial was that Ehrlick and Jenkins
fabricated the story of a birthday party in order to distract law enforcement and deflect attention
from themselves. 2 In support of this theory, the State introduced evidence that no birthday party
occurred and that a birthday party at that late hour did not make sense. Ehrlick maintains that the
actual existence of a party is irrelevant because he never said that there was in fact a party, just
that R.M. had asked to go to a party.
B. Ehrlick’s physical abuse of R.M.
         Much of the State’s evidence in this case involved the nature and extent of Ehrlick’s
physical and emotional abuse of R.M. Ehrlick’s methods of child discipline—and his related
terminology—may charitably be characterized as unconventional. The first was “dead bugging,”
where Ehrlick would force R.M. to lay on his back on the floor and raise his arms and legs,
keeping them perpendicular to the floor. The second was “the wall,” where Ehrlick would force
R.M. to press his face and knees up against a wall while crouching. Third, Ehrlick forced R.M. to
maintain “the chair,” where R.M. would place his back against a wall with bent knees and hold

2
  As additional evidence that Jenkins and Ehrlick fabricated stories to obstruct the investigation, the State offered
testimony from Detective Glen Rawson. Rawson testified that on July 25 at approximately 4:00 a.m., he received a
call from Jenkins that Ehrlick had found a package of Jimmy Dean sausage biscuits like the ones they kept in their
freezer in the bushes outside their building. Rawson went to the scene. Upon his arrival, Ehrlick emphatically told
Rawson that the package in the bushes showed that R.M. had run away and tried to take food with him. However,
when Rawson collected the package from the bushes, it was still very cold to the touch.

                                                         3
the position as long as possible. Ehrlick also struck R.M. with a board. R.M. often sustained
bruising as a result of Ehrlick’s discipline. To hide this bruising from health and welfare workers
during their visits to the home, Ehrlick and Jenkins told elaborate lies and hid R.M. in their
closet.
C. The State’s timeline.
          Throughout the trial, the State’s theory was that R.M. was not seen by any witness on
July 24 because he was either dead or dying and was unable to go outside. For this reason, the
State went to great lengths to discredit all witness accounts that presented claims of seeing or
speaking with R.M. on July 24.
                                    II. STANDARD OF REVIEW
                   This Court reviews questions regarding the admissibility of evidence using
          a mixed standard of review. State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217,
          221 (2008). First, whether the evidence is relevant is a matter of law that is
          subject to free review. State v. Field, 144 Idaho 559, 569, 165 P.3d 273, 283
          (2007). Second, we review the district court’s determination of whether the
          probative value of the evidence outweighs its prejudicial effect for an abuse of
          discretion. Stevens, 146 Idaho at 143, 191 P.3d at 221. We determine whether the
          district court abused its discretion by examining: (1) whether the court correctly
          perceived the issue as one of discretion; (2) whether the court acted within the
          outer boundaries of its discretion and consistently within the applicable legal
          standards; and (3) whether the court reached its decision by an exercise of
          reason. Id. However, an abuse of discretion may be deemed harmless if a
          substantial right is not affected. State v. Thompson, 132 Idaho 628, 636, 977 P.2d
          890, 898 (1999). “In the case of an incorrect ruling regarding evidence, this Court
          will grant relief on appeal only if the error affects a substantial right of one of the
          parties.” Obendorf v. Terra Hug Spray Co., 145 Idaho 892, 897, 188 P.3d 834,
          839 (2008); I.R.E. 103(a). “Any error, defect, irregularity or variance which does
          not affect substantial rights shall be disregarded.” I.C.R. 52.
State v. Shackelford, 150 Idaho 355, 363, 247 P.3d 582, 590 (2010).
                                      III. ISSUES ON APPEAL
    1. Did the district court err by admitting testimony from an investigator that witnesses who
       saw R.M. on July 24 were not credible?
    2. Did the district court err by admitting a model of R.M.’s head?
    3. Did the district court err by admitting certain I.R.E. 404(b) evidence?
    4. Did the district court err by holding that statements made by Samantha Burnett were not
       hearsay?
    5. Did the district court err by excluding statements to law enforcement officers on the basis
       that the statements were hearsay?

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       6. Did the prosecution commit misconduct?
                                            IV. ANALYSIS
A. The district court abused its discretion in admitting testimony from Agent Martin that
   no witnesses who claimed to have seen R.M. on July 24 were credible; however, the
   error was harmless.
           The State called Mary Martin, an FBI agent assigned to investigate cases involving
crimes against children. Martin became involved in the search for R.M. on July 27. Initially,
Agent Martin was assigned to follow up on any leads that came in. She was later asked to create
a timeline focused on establishing the last time R.M. was seen. Martin testified that every lead
that came in on R.M.’s case was investigated by the Boise Police Department or the FBI. Over a
defense objection, Martin testified that, based on all of the leads and all of the reports she
reviewed, it was not possible for R.M. to have been at all of the places where witnesses reported
having seen him.
           Martin interviewed K.D., 3 a seven-year-old resident of the complex, who claimed she had
seen R.M. on July 24. Martin testified that K.D. had been interviewed on two prior occasions and
that in each instance there were inconsistencies in her reports. The prosecution then asked
Martin, “[B]ased on your investigation–were you able to determine whether or not that was a
credible lead or a credible last sighting?” Defense counsel objected, arguing that credibility was
for the jury to decide. The district court asked the prosecutor if Martin’s opinion was based upon
her “expertise.” The prosecutor responded that it was based upon Martin’s expertise and
investigation. The district court overruled the objection and Martin testified that she determined
that K.D.’s report of seeing R.M. on July 24 was not a credible lead or last sighting.
           Martin also examined reports from two other children who resided in the apartment
complex, O.J. and I.T. O.J. and I.T. both claimed to have seen R.M. on July 24. Martin did not
interview O.J. or I.T., but found inconsistences in their statements to law enforcement and
determined that neither provided a credible last sighting of R.M. Defense counsel again objected
to Martin testifying that O.J. and I.T.’s statements were not credible, arguing that it invaded the
province of the jury. The district court again overruled the objection. Ultimately, Martin testified
that the law enforcement investigation did not produce any credible sightings of R.M. on July 24.
           The defense called O.J. as a witness at trial. O.J. testified that in the summer of 2009 he
was thirteen years old and had lived at the apartment complex for approximately one year. He
3
    K.D. was not called as a witness.

                                                    5
testified that he had known R.M. for about two weeks before he went missing and that he saw
R.M. on a swing set in the apartment complex’s park on July 24 sometime after noon and again
by the complex’s pool area later in the day. On cross-examination, O.J. was impeached with
multiple prior inconsistent statements.
        Defense counsel also called two witnesses who were not directly identified in Martin’s
testimony. 4 Both testified that they saw R.M. at the pool on the evening of July 24. The first,
Jennifer Hastings, testified that she was sitting on the edge of the community pool on July 24
while her son swam. Hastings stated that she and her son left the pool sometime between 8:00
and 9:30 p.m. Hastings testified that, late in the evening of July 24, an officer showed her a photo
of R.M. and that she was fairly certain she had briefly seen the boy playing by the pool earlier
that evening. She said that R.M. was wearing shorts and a t-shirt. On cross-examination, the
prosecutors confronted Hastings with a form she filled out shortly after July 24 that asked her to
“[d]escribe in your own words everything that occurred on the day of the disappearance, from
the time you got up until the time you went to sleep. Include everywhere you went; everything
you did; and everyone you interacted with … no detail is too small. Everything is important.”
Hastings wrote:
        I got up about 9:30ish. Had my children get ready for the day. They went outside
        to play and walk the dog about 10:30. I went and checked on them about 11
        o’clock a.m. At that time, I saw a white, older van mid-80s, driving around the
        complex. I saw it enter and leave two or three times. Driving slowly. I thought
        nothing of it. I left at about 1:30 to be at work by 2 o’clock. I arrived home about
        9 o’clock. We saw it leaving as we were entering. I later heard his father calling
        him at 10:15 p.m.
        The defense also called Melanie Robinson as witness. She testified that she knew R.M.
by name and that she was “positive” that she saw him “in the pool, near the pool area” playing in
the hot tub. She testified that R.M. was wearing blue Spiderman swimming shorts. Robinson also
testified that she spoke with Agent Martin a few days after R.M.’s disappearance and told Martin
that she had seen R.M. on the evening of July 24. On cross-examination, the prosecution showed
Robinson a photo of the back of R.M.’s head that was taken after his body was recovered.
Robinson testified that the hair depicted in the photo was much longer than the hair of the boy




4
 Both of the witnesses reported to law enforcement that they had seen R.M. on July 24. As Martin testified that she
had reviewed all such reports, their reports were covered by Martin’s testimony that such reports were not credible.

                                                         6
she had seen by the pool on the evening of July 24. In closing argument, the State theorized that
Robinson had confused R.M. with another boy.
          Ehrlick contends that the district court erred by allowing Martin to express her opinion,
based on her expertise and investigation, that witnesses who told law enforcement that they saw
R.M. on July 24 were not credible. Relying on State v. Almaraz, 154 Idaho 584, 301 P.3d 242
(2013), Ehrlick argues that the district court abused its discretion because this testimony invaded
the province of the jury. Ehrlick further contends that the error was not harmless.
          The State responds that Ehrlick’s claim that the district court erred in allowing Martin’s
testimony fails because Martin’s testimony did not assess the credibility of any witness; rather, it
merely explained a stage of the investigation. The State further argues that Martin’s testimony
was not admitted to vouch for any witness’s credibility, but to establish the thoroughness of the
investigation. The State also notes that because K.D. and I.T. did not testify at trial, Martin’s
testimony could not have encroached on the jury’s function to evaluate their credibility.
   1. The district court abused its discretion by admitting Martin’s testimony regarding
      the credibility of witnesses.
          “Under I.R.E. 702, an expert witness may provide an opinion ‘[i]f scientific, technical, or
other specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue.’ ” Almaraz, 154 Idaho at 599, 301 P.3d at 257 (quoting I.R.E. 702).
This Court has “routinely held that ‘an expert’s opinion, in a proper case, is admissible up to the
point where an expression of opinion would require the expert to pass upon the credibility of
witnesses or the weight of disputed evidence. To venture beyond that point, however, is to usurp
the jury’s function.’ ” Id. at 599–600, 301 P.3d at 257–58 (quoting State v. Perry, 139 Idaho 520,
525, 81 P.3d 1230, 1235 (2003)); see also State v. Hester, 114 Idaho 688, 696, 760 P.2d 27, 35
(1988).
          Although the defense called three witnesses who claimed to have seen R.M. on July 24,
Martin only expressly identified one, O.J., as having made a report that was not credible.
However, Martin’s testimony that there were no credible reports from witnesses claiming to have
seen R.M. on July 24 also called into question the credibility of each defense witness who
testified to seeing him on that date. As to O.J., Martin testified:
          [Counsel for the State]: [D]id you look at leads that were brought in by other
          juveniles there, one by the name of [O.J]. and another by the name of [I.T.]?
          [Martin]: Yes, I did.

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       [Counsel for the State]: And were those people who had reported, potentially,
       seeing [R.M.] on the 24th?
       [Martin]: Yes.
       ….
       [Counsel for the State]: And did you find inconsistencies–or did you ever speak
       with [O.J.]?
       [Martin]: No, I did not.
       [Counsel for the State]: Did you ever speak with [I.T.]?
       [Martin]: No, I did not.
       ….
       [Counsel for the State]: Did you look at reports of interviews that they gave?
       [Martin]: Yes, I did.
       [Counsel for the State]: Did each of those individuals give multiple interviews?
       [Martin]: Yes.
       ….
       [Counsel for the State]: And did you determine whether or not either of the
       sightings reported–or, I’m sorry, stepping back. In reading the reviews, or the
       reports, did you see any inconsistent statements given by those two individuals?
       ….
       [Martin]: Yes.
       ….
       [Counsel for the State]: And did you determine whether or not either of them
       provided a credible last sighting of [R.M]?
       [Martin]: They did not.
Martin’s testimony expressly calls the credibility of O.J.’s testimony into question by asserting
that, in her expert opinion, his sighting was not credible. The State, as its final question for
Martin, asked: “Bottom line, after all of your efforts that you made, were you able to find what
you believed to be a credible last sighting of [R.M.] there in the apartment complex on July 24,
2009?” After the district court overruled a defense objection, Martin responded, “No, I was not.”
       This testimony, offered by the prosecution, and permitted by the district court despite
repeated objections, directly related to the credibility of witnesses and encroached on the jury
function to assess witness credibility. The district court’s decision to admit Martin’s testimony
on this subject was inconsistent with our long-standing precedent, as articulated in Almaraz,
Perry, and Hester. As the district court’s decision was inconsistent with the governing legal

                                                8
standard, the district court abused its discretion by admitting Martin’s testimony regarding the
credibility of testifying witnesses. We now consider whether the district court’s error was
harmless.
            2. The district court’s error in admitting Martin’s testimony was harmless.
       The State argues that Martin’s testimony regarding other witnesses’ credibility could not
have prejudiced Ehrlick because the jurors had ample opportunity to review their many
inconsistent statements and to decide for themselves whether the witnesses were credible.
Additionally, the State argues that, even without Martin’s testimony, the jury would have
concluded that there were no credible reports from people claiming to have seen R.M. on July
24.
       Ehrlick responds that the district court’s error in admitting Martin’s testimony was not
harmless because the State’s case was entirely circumstantial and relied heavily on discrediting
eyewitnesses who claimed to have seen R.M. on July 24. Ehrlick argues that, because the State’s
theory of the case was that R.M. was never outside on July 24 because he was either suffering
from his injuries or already dead, any evidence that R.M. had been seen on July 24 was
devastating to the State’s case.
       “In the case of an incorrect ruling regarding evidence, this Court will grant relief on
appeal only if the error affects a substantial right of one of the parties.” State v. Shackelford, 150
Idaho 355, 363, 247 P.3d 582, 590 (2010) (quoting Obendorf v. Terra Hug Spray Co., 145 Idaho
892, 897, 188 P.3d 834, 839 (2008)). “Any error, defect, irregularity or variance which does not
affect substantial rights shall be disregarded.” I.C.R. 52.
       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 is not affected, an abuse of discretion may be
deemed harmless. Id. at 363, 247 P.3d at 590. 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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       We conclude beyond a reasonable doubt that the district court’s error in admitting
Martin’s testimony did not contribute to the jury’s verdict. The three witnesses called by the
defense were thoroughly impeached. O.J.’s trial testimony was contradicted by numerous prior
inconsistent statements. Hastings’ testimony that she saw R.M. by the pool on the evening of
July 24 was contradicted by her written statement to law enforcement that she left home for work
at 1:30 p.m. and had not returned until 9:00 p.m. Robinson’s claim to have seen R.M. by the pool
on July 24 was likewise contradicted when she admitted under cross-examination that R.M. had
longer hair than the boy she saw at the pool.
       Additionally, the State had powerful circumstantial evidence that Ehrlick knew of R.M.’s
death before the evening of July 24. As a form of discipline, Ehrlick would require R.M. to eat
oatmeal and raisins. The remains of R.M.’s final meal, oatmeal and raisins, were found in R.M.’s
stomach during the autopsy. Vomitus containing oatmeal and raisins was located by the
concealed hole in the wall. Based upon the state of digestion of his stomach contents, R.M. ate
less than five hours before his death. Ehrlick stated that R.M. had eaten the oatmeal for lunch,
meaning that R.M. was dead before the time that Ehrlick claimed to have last seen him alive.
B. The district court did not err in admitting the model of R.M.’s head.
       The State called Wesley Neville, an FBI forensic artist as a witness. Neville testified that
he created a clay model of the “approximate size and shape” of R.M.’s head. In order to create
the model, Neville received three measurements of R.M.’s head taken by Robert Karinen, a
forensic supervisor in the Ada County Coroner’s Office: (1) the length of the face (16.8
centimeters); (2) the breadth of the face (14.5 centimeters); and, (3) the circumference of the
head (53 centimeters). Neville used photographs of R.M. to “semi-accurately” place and size
R.M.’s facial features on the model. After completing the clay model, Neville scanned it and,
using a 3-D printer, created a plastic model of R.M’s head. Karinen took measurements of the
model in order to compare it to the actual size of R.M.’s head. Although the length of the face
was the same, the face of the model was .7 centimeters narrower than R.M.’s face and the
circumference of the head was 3.5 centimeters less than R.M.’s head. In short, the model was
smaller than R.M.’s head.
       At a hearing conducted to determine the admissibility of the model, the State argued that
despite the “very, very minor” discrepancies in size, it was “a very fair representation of the size
and shape of R.M.’s head.” The State argued that the exhibit was relevant to show where R.M.


                                                10
sustained injuries, the relative size and significance of R.M.’s head injuries, and to determine
whether R.M.’s head created the hole found in the apartment wall. Ehrlick argued that the
inaccuracies rendered the model irrelevant and unhelpful to the jury in determining the relative
size of R.M.’s wounds. Ehrlick further argued that the jury should not be allowed to speculate as
to whether R.M.’s head caused the hole simply by matching up two exhibits to see if they fit
together. The district court admitted the model, concluding that it was sufficiently accurate to
assist the trier of fact. 5
         On appeal, Ehrlick argues that the district court erred in admitting the model because it
was not relevant. Ehrlick asserts that the difference in size between the exhibit and R.M.’s head
is sufficiently large as to render the model irrelevant to establish: (1) the size of R.M.’s head; (2)
the relative size of R.M.’s head wounds; and (3) whether the hole in the apartment wall was the
same size as R.M.’s head.
                This court reviews questions of the admissibility of evidence using a
         mixed standard of review. Whether the evidence is relevant is a matter of law and
         is subject to free review. The district [court’s] determination of whether the
         probative value of the evidence outweighs its prejudicial effect is reviewed for an
         abuse of discretion. This Court has adopted a three part test for determining
         whether the district court abused its discretion: (1) whether the court correctly
         perceived that the issue was one of discretion; (2) whether the court acted within
         the outer boundaries of its discretion and consistently with the legal standards
         applicable to the specific choices available to it; and (3) whether it reached its
         decision by an exercise of reason.
State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008) (internal citations omitted).
“‘Relevant Evidence’ means evidence having 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 it would
be without the evidence.” I.R.E. 401.
         1. Ehrlick has not demonstrated the model was irrelevant to establish the location
            of R.M.’s head wound.
         The model was used as a demonstrative aid to show the location of R.M.’s wounds. We
conclude that its minor inaccuracies did not make it irrelevant for the purpose of showing the
jury where R.M. sustained a head wound.
         2. Ehrlick has not demonstrated that the model was irrelevant to establish the
            relative size of R.M.’s head wound.

5
  The district court found that the facial features portrayed on the model were more prejudicial than probative and, as
a condition of admission, required the State to cover the facial features.

                                                         11
       Although the model was not precisely the same size as R.M.’s head, it was not portrayed
to the jury as an exact replica. Rather, Neville informed the jury that the model was the
“approximate size and shape” of R.M.’s head. In addition, the jury received testimony from
Karinen that the model differed from R.M.’s head as to its circumference and the breadth of the
face. Given the minor discrepancies, we are unable to conclude that the model was irrelevant to
establish the relative size of R.M.’s head wounds.
       3. Ehrlick has not demonstrated that the model was irrelevant to the cause of the
          hole in the apartment wall.
       The prosecution offered models of R.M.’s head and the sheetrock containing the
concealed hole for the purpose of establishing that Ehrlick slammed R.M.’s head into the wall,
inflicting a fatal injury. The prosecution argued that it did not need an expert to testify to the
mechanism of injury, but that the jury could evaluate the evidence and reach its own conclusion.
Prior to admission, the prosecution represented to the district court, “Judge, I will tell the court
that when you look at these items and, in particular, you match them up … it’s a perfect fit.”
Additionally, the prosecution, in closing told the jury, “you have the head; you have the wall.
You can make your own determinations as to whether the head fits into the hole, and you can do
that back in deliberations.”
       The models were relevant to establish the State’s theory of the case that the similarity of
the size of R.M.’s head and the hole in the wall gave rise to an inference that the hole in the wall
was caused by R.M.’s head coming in violent contact with the wall. Given the small differences
in measurements and the jury’s awareness of those discrepancies, we are unable to conclude that
the district court abused its discretion by admitting the model.
C. The district court did not abuse its discretion in admitting I.R.E. 404(b) evidence.
       Ehrlick argues that the district court abused its discretion in admitting certain I.R.E.
404(b) evidence. First, Ehrlick argues that the district court abused its discretion in admitting
testimony from three of Ehrlick’s previous girlfriends because the evidence was not relevant to
any issue and constituted impermissible propensity evidence. Next, Ehrlick argues that the
district court abused its discretion in admitting evidence that Ehrlick attempted to contact Jenkins
to influence her cooperation with law enforcement and/or her testimony. Finally, Ehrlick argues
that the district court abused its discretion in allowing the State to offer evidence of his trip to the
emergency room on the morning of July 31 following an attempted suicide or feigned attempt at
suicide.
                                                  12
       Following the presentation of evidence, the district court instructed the jury as to the
limited purpose for which this evidence was admitted:
               Evidence has been introduced for the purpose of showing that the
       defendant committed crimes, wrongs or acts other than that for which the
       defendant is on trial.
               Such evidence, if believed, is not to be considered by you to prove the
       defendant’s character or that the defendant has a disposition to commit crimes.
               Such evidence may be considered by you only for the limited purpose of
       proving the defendant’s motive, opportunity, intent, preparation, plan, knowledge,
       identity, absence of mistake or accident, or state of mind.
       “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person to show action in conformity therewith.” State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185,
1188 (2009) (citing I.R.E. 404(b)). Evidence of other crimes, wrongs, or acts “may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident….” I.R.E. 404(b).
       When reviewing a trial court’s decision regarding the admissibility of evidence
       related to a defendant’s prior conduct, this Court applies a two-part standard: “(1)
       whether, under I.R.E. 404(b), the evidence is relevant as a matter of law to an
       issue other than the defendant’s character or criminal propensity; and (2) whether,
       under I.R.E. 403, the district court abused its discretion in finding the probative
       value of the evidence was not substantially outweighed by the danger of unfair
       prejudice to the defendant.”
State v. Joy, 155 Idaho 1, 8, 304 P.3d 276, 283 (2013) (quoting State v. Johnson, 148 Idaho 664,
667, 227 P.3d 918, 921 (2010)). “Evidence of a defendant’s prior misconduct is not admissible
unless it is relevant to the charged offense.” Id. at 9, 304 P.3d at 284. “Evidence is relevant if it
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 it would be without the evidence.’ ” Id.
(quoting I.R.E. 401). Further, in order to be relevant, evidence offered under I.R.E. 404(b) “must
be sufficiently established as fact.” Id. (quoting State v. Pepcorn, 152 Idaho 678, 688, 273 P.3d
1271, 1281 (2012)).
       Abuse of discretion is determined by a three part test which asks whether the
       district court “(1) correctly perceived the issue as one of discretion; (2) acted
       within the outer boundaries of its discretion and consistently with the legal
       standards applicable to the specific choices available to it; and (3) reached its
       decision by an exercise of reason.”
State v. Field, 144 Idaho 559, 568, 165 P.3d 273, 282 (2007) (quoting Sun Valley Potato
Growers, Inc. v. Texas Refinery Corp., 139 Idaho 761, 765, 86 P.3d 475, 479 (2004)).

                                                 13
       1. The district did not abuse its discretion in admitting testimony from Ehrlick’s
          former girlfriends.
       Prior to trial, the prosecution filed a notice of intent to present I.R.E. 404(b) evidence.
The prosecution sought to present testimony from three of Ehrlick’s former girlfriends to
demonstrate Ehrlick’s “sadistic intent, intent to inflict extreme and prolonged pain, intent to
inflict extreme and prolonged acts of brutality, and intent to cause suffering.” Ehrlick objected to
the admission of the testimony. The district court concluded that because I.R.E. 404(b) evidence
is admissible to show intent, and because courts have permitted I.R.E. 404(b) evidence in murder
by torture cases, the testimony of Ehrlick’s prior girlfriends was admissible. Ehrlick filed a
motion to reconsider, which was denied. The district court held that the testimony from Ehrlick’s
prior girlfriends was admissible because it was relevant to establishing Ehrlick’s sadistic nature,
his intent to torture, and motive. The district court also concluded that the probative value of the
evidence was not outweighed by the danger of unfair prejudice to Ehrlick.
       At trial, the prosecution called the three former girlfriends. The first, Misty Barnett, dated
and lived with Ehrlick approximately 20 years prior to trial. Barnett testified that Ehrlick was
verbally and physically violent nearly every day, that he would choke her to the point of passing
out and that he would lock her in their apartment against her will. Barnett also testified that
Ehrlick took pleasure in verbally and physically abusing her. The second former girlfriend, Kelly
Marshall, dated and lived with Ehrlick approximately 13 years prior to trial. Marshall testified
that Ehrlick was physically and mentally abusive about eighty percent of the time. Marshall
testified that Ehrlick pinned her down, choked her to the point of losing consciousness, pulled
her hair, spit in her face, and threw her out of their residence while she was nude. Marshall
testified that Ehrlick would hold her captive in the hotel room they lived in and would only allow
her to leave if he accompanied her. Marshall stated that she believed Ehrlick took pleasure in
causing her physical and emotional pain and that Ehrlick never felt remorse. The third former
girlfriend, Alexis Palmer, dated Ehrlick in 2004. Palmer described their relationship as
emotionally and physically abusive. Palmer testified that Ehrlick was very controlling and would
not let her go anywhere alone or use her phone. Palmer testified that Ehrlick would frequently
choke her, pull her hair and pin her down. Palmer also testified that Ehrlick’s violent outbursts
were unpredictable in that there were no evident triggering events. Palmer testified that she
believed Ehrlick enjoyed being mean.


                                                14
       Ehrlick argues that this evidence was not relevant because his intent was not directly at
issue. Ehrlick contends that in cases where the intent required for conviction can be manifested
by the circumstances attending the act, I.R.E. 404(b) evidence of intent is not relevant or
admissible. Ehrlick further argues that the testimony offered by the former girlfriends failed to
demonstrate that he acted with the intent to torture and thus, there is no relationship between the
prior conduct and the State’s charges. Finally, Ehrlick asserts that even if the testimony was
relevant, the district court abused its discretion in admitting the evidence because any probative
value was substantially outweighed by its prejudicial effect.
           a. The I.R.E. 404(b) testimony from Ehrlick’s prior girlfriends was relevant to
              establish Ehrlick’s intent to torture and/or his intent to satisfy a sadistic
              inclination.
       Ehrlick was charged under I.C. § 18-4003(a), which provides “[a]ll murder which is
perpetrated by means of … torture, when torture is inflicted with the intent to cause suffering …
or to satisfy some sadistic inclination … is murder of the first degree.” Accordingly, the State
was required to prove beyond a reasonable doubt that Ehrlick tortured R.M. with: (1) the intent
to cause suffering or (2) the intent to satisfy some sadistic inclination. See State v. Tribe, 123
Idaho 721, 724–25, 852 P.2d 87, 90–91 (1993) (recognizing that I.C. § 18-4003(a) makes the
infliction of torture done with the specific intent to cause suffering or satisfy a sadistic
inclination first-degree murder).
       In State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985), this Court addressed a nearly
identical factual and legal situation. The defendant in Stuart was convicted of first-degree murder
by torture for beating his live-in girlfriend’s three-year-old son to death Id. at 165, 715 P.2d at
835. At trial, the prosecution presented evidence of the defendant’s prior abuse of other women
and their minor children with whom the defendant had lived over a period of ten years. Id. at
170, 715 P.2d at 840. On appeal, we found the evidence relevant to show that the defendant had
the requisite intent to torture to support a conviction under I.C. § 18-4003(a). Id.
       Despite the many similarities between the present case and Stuart, there is one significant
difference. In Stuart, the defendant placed his intent at issue by admitting to the conduct
resulting in the death, but claiming he did not intend to torture the child. Specifically, Stuart
argued that his “actions only constituted an overabundance of discipline, without the intent to




                                                 15
cause pain and suffering.” Id. 6 Ultimately, this Court held that the I.R.E. 404(b) evidence “was
relevant to show that [the defendant] had an intent other than that of discipline in his treatment of
the victim because he treated other persons close to him in a similar manner.” Id.
         Despite the fact that Ehrlick did not place his intent at issue by admitting that he killed
R.M. while disclaiming the requisite intent, the State was nevertheless required to prove that
Ehrlick killed R.M. with the intent required by I.C. § 18-4003(a). See Stuart, 110 Idaho at 168,
715 P.2d at 838 (“In proving a murder by torture charge, the key item of proof which must be
shown by the prosecution is the state of mind of the defendant.”). The fact that I.C. § 18-4003(a)
is a specific intent crime 7 renders Ehrlick’s attempt to distinguish Stuart meritless because “[i]n
specific intent cases, intent need not be disputed by the defendant to make evidence admissible
[to prove intent under] Rule 404(b).” 22A KENNETH GRAHAM, FEDERAL PRACTICE                                         AND

PROCEDURE § 5242 (2d ed. 2013) (citing U.S. v. Harrod, 856 F.2d 996, 1000 (7th Cir. 1988)
(“Our analysis indicates that when the crime charged is one requiring a showing of specific
intent, ‘intent’ need not be disputed by the defendant before Rule 404(b) evidence can be
introduced. In specific-intent crimes, intent is an essential and material element to be proven, and
thus necessarily becomes a matter in issue.”).
         Because the murder charge was for a specific intent crime, the district court correctly
determined that the testimony of Ehrlick’s former girlfriends was relevant to an element as to
which the prosecution bore the burden of proof beyond a reasonable doubt. We now consider
whether the district court abused its discretion in finding that the evidence was admissible under
I.R.E. 403.
              b. The district court did not abuse its discretion in finding that the probative
                 value of Ehrlick’s former girlfriends’ testimony was not substantially
                 outweighed by the danger of unfair prejudice.
         The district court correctly recognized that it had the duty to weigh the probative value of
the I.R.E. 404(b) evidence against the danger of unfair prejudice to Ehrlick. The district court
recognized that the evidence was probative of Ehrlick’s intent. The court noted that Ehrlick’s

6
  Ehrlick argues that this difference makes the prosecution’s introduction of I.R.E. 404(b) evidence in this case error
because Stuart held that I.R.E. 404(b) evidence was only relevant to show Stuart’s intent to torture after he placed
his intent at issue.
7
  “A general criminal intent requirement is satisfied if it is shown that the defendant knowingly performed the
proscribed acts, but a specific intent requirement refers to that state of mind which in part defines the crime and is an
element thereof.” State v. Stiffler, 117 Idaho 405, 406, 788 P.2d 220, 221 (1990) (citations omitted).



                                                          16
behavior such as choking, pulling hair, hitting, physically preventing movement, lack of remorse,
and joy in injuring those close to him, showed that Ehrlick had an “intent to inflict suffering or to
satisfy sadistic intentions.” The district court stated: “Because evidence of Ehrlick’s intent to
inflict suffering or to satisfy sadistic intentions is highly relevant, such evidence overcomes any
prejudicial effect it might have in terms of being admissible. The Court finds the probative value
of this evidence is not outweighed by its danger of unfair prejudice.”
       The district court engaged in an extensive discussion about the relevance of the evidence,
its probative value, and whether it was unduly prejudicial under I.R.E. 403. The record indicates
that the district court correctly perceived the decision as discretionary, acted within the
boundaries of its discretion, and reached its decision through the exercise of reason. Accordingly,
we conclude that the district court did not abuse its discretion by admitting the testimony of
Ehrlick’s former girlfriends.
       2. The district court did not err in admitting evidence that Ehrlick attempted to
          contact Jenkins pursuant to I.R.E. 404(b).
       On August 2, 2010, the prosecution filed a motion in limine and notice of its intent to
present evidence, pursuant to I.R.E. 404(b), of two separate instances where Ehrlick attempted to
influence, affect, or alter Jenkins’ testimony. The first instance occurred after Jenkins made
statements in an interview with law enforcement officers regarding Ehrlick’s physical abuse of
R.M. Officers then confronted Ehrlick with Jenkins’ statements. Ehrlick then attempted to
contact Jenkins by phone, albeit unsuccessfully. Ehrlick left seven voice messages for Jenkins
between July 30 and 31, 2009. The messages are as follows:
   1. Thursday, July 30, 1:45 PM: Melissa, this is Danny you need to call me back as
      soon as you can. Bye.
   2. Thursday, July 30, 3:08 PM: Melissa, this is Danny. Dude, you better call me as
      soon as possible. Thank you.
   3. Thursday, July 30, 6:46 PM: Hi, Honey. This is Danny. I love you, baby. I don’t
      know what’s going on. Please call me as soon as you can. If not I’m going to keep
      trying to call you. Thank you.
   4. Thursday, July 30, 8:00 PM: Melissa, why did you do this to me? Why? All I
      want to know, why did you do this to me?
   5. Thursday, July 30, 9:52 PM: All I can say is I love you, Melissa. I do. I love
      you. And I’m sorry that you’ve done this. I didn’t ever think you would do this to
      me, Melissa. I didn’t but I guarantee you, Melissa, I never did anything to poor
      [R.M.]. (Inaudible) And I’m sorry you lost trust in me but I’m telling you I never
      did anything to harm [R.M.]. I’m sorry, babe. I love you.

                                                 17
    6. Thursday, July 30, 11:40 PM: Hi Melissa. It’s Danny. Sorry for everything. I
       would really like to talk and if (inaudible) you understand that I love you.
    7. Friday, July 31, 4:41 PM: Melissa, this is Danny. You need to call me as soon as
       possible.
These messages were played in open court and published to the jury.
        The second instance followed the State notifying Ehrlick that Jenkins might be called to
testify against him at trial. Two weeks later, Ehrlick contacted his cousin, Robyn Ehrlick, and
asked her to forward a letter he authored to Jenkins. The letter provided:
                Hello! I am writting to ask why? Why are you such a liar? Why are you
        lieing about me? Why all the BullShit?
                I have never been so hurt in all my life I am so Deviastated I will never be
        the same… I have lost a apart of my Heart and soal I will never get back.
                I have lost my will to care… There is no hope in sight. I have lost my will
        to live… all that I have loved and cared for have been taken from me.. This really
        sadens to write this? So please bear with me… It really go’s to show me how
        much you really cared…
                I know it, You Know it, Everybody also know’s it, the only Thing I cared
        about was the Kid’s… That’s why this hurt’s me so much… I was never abusive
        to the Kid’s or to Melissa. –Never- (why all the lies)
                All I wanted more than anything was for the Kids to have a life to have a
        good life. And that life was with me… Not Just for Them, for me Too…
                It really sad you believed all the BullShit and all the Lies the cops fed
        you.. When you Know Better.. I Did nothing wrong..
                I also want to Thank-you for all the Property of mine that you and your
        family stoled from me… That show’s me even more … Just so you are aware of
        it.. Thank’s I knew I should have got out sooner. It goes to show I was wright the
        whole time…
                Well I am going to let you go.. Thanks for everything.. Make sure To
        Thank yor family as well… If you Don’t Know By now – They are also stabbing
        you in the Back – Your Sister most of all…
(Errors in original).
        The prosecution argued that Ehrlick’s efforts to contact Jenkins were an attempt to
influence the testimony of a potential witness and reflected Ehrlick’s consciousness of guilt.
Ehrlick opposed the motion. The district court granted the State’s motion, stating:
        Even though Ehrlick does not make an explicit attempt to influence Jenkins, the
        court finds that in the context in which the State intends to offer it, it can be
        construed as an attempt to influence a witness, which is admissible 404(b)
        evidence to show consciousness of guilt …. The court finds this evidence is
        highly relevant and it is not unduly prejudicial. The evidence can also be
        interpreted to be that of an innocent man trying to clear himself. The court grants
        the motion.

                                                18
       Ehrlick argues that the evidence was not relevant because it does not demonstrate a
consciousness of guilt; rather, the most obvious interpretation of the evidence shows an innocent
man trying to clear himself. Ehrlick further argues that even if the evidence was relevant, it was
not admissible under I.R.E. 403 because its probative value is substantially outweighed by its
prejudicial effect. Ehrlick asserts that the evidence was prejudicial because it portrays him “in an
unfavorable light, showing a personality and style that is inherently unlikeable.”
           a. The evidence of Ehrlick’s attempts to contact Jenkins was relevant to the
              purpose of demonstrating consciousness of guilt.
        “I.R.E. 404(b) allows evidence of other acts if admitted for the purpose of showing …
consciousness of guilt.” State v. Sheahan, 139 Idaho 267, 279, 77 P.3d 956, 968 (2003).
“[E]vidence which tends to show that the accused has attempted to fabricate or procure false
evidence is admissible as showing a consciousness of guilt.” State v. Rolfe, 92 Idaho 467, 470,
444 P.2d 428, 431 (1968); see also State v. Pokorney, 149 Idaho 459, 463, 235 P.3d 409, 413
(Ct. App. 2010) (“Evidence of a defendant’s efforts to influence or affect evidence, such as
intimidating a witness, offering to compensate a witness, and fabrication, destruction or
concealment of evidence may be relevant to demonstrate consciousness of guilt.”). Such
evidence is admissible because a defendant’s effort to influence evidence suggests an attempt to
evade justice, and hence, implicates consciousness of guilt. Pokorney, 149 Idaho at 463–64, 235
P.3d at 413–14. When evidence that is offered to establish consciousness of guilt also supports
non-inculpatory inferences, this goes to the weight, not the relevance of the evidence. Sheahan,
139 Idaho at 279, 77 P.3d at 968.
       The evidence of Ehrlick’s attempts to contact Jenkins is relevant to establish
consciousness of guilt because it supports a reasonable inference that Ehrlick was seeking to
influence Jenkins’ testimony and/or her cooperation with law enforcement, although none of the
evidence presented by the prosecution involved a direct threat to Jenkins or an express request
that she not cooperate. In this way, the facts of this case are similar to the facts in Pokorney.
       In Pokorney, the defendant was charged with seven counts of lewd conduct with a minor
based upon allegations by four of his five sons. 149 Idaho at 461, 235 P.3d at 411. Prior to trial,
the State notified the defendant that it intended to introduce a letter written by the defendant to
his eldest son while in jail. Id. In the letter, the defendant denied the allegations made against
him and attempted to explain a previous conviction for sexual abuse of a child. Id. The State
argued that the letter was admissible under I.R.E. 404(b) because it was relevant to show that the
                                                  19
defendant was manipulating his son, a potential witness or accuser, which demonstrated
consciousness of guilt. Id. at 463, 235 P.3d at 413. Although the letter did not contain an explicit
request that the son change his testimony or attempt to influence that of his siblings, the Court of
Appeals concluded that a fair interpretation of the letter was as an attempt to persuade the eldest
son to provide helpful testimony and, arguably, for him to convince his younger siblings not to
testify. Id. at 465, 235 P.3d at 415. Despite the existence of alternative reasonable, non-
inculpating inferences that might be drawn, the letter was admissible because it had some
tendency to establish the defendant’s consciousness of guilt.
       As with the letter in Pokorney, Ehrlick’s attempts to contact Jenkins can fairly be
interpreted as an attempt to persuade her not to cooperate or to provide false testimony. Both
instances of attempted contact followed closely on the heels of Ehrlick learning that Jenkins had
either implicated Ehrlick in R.M.’s death or planned to do so. The choice of words and tone of
the attempted contacts can easily be interpreted as an effort by Ehrlick to appeal to Jenkins’
sympathy or an attempt to cause her to regret her cooperation due to the impact on him and their
relationship. Undoubtedly, as the district court pointed out, the attempted contact may be viewed
as an innocent man trying to clear his name. However, the existence of an alternative inference
affects the weight, not the relevance, of the evidence. Sheahan, 139 Idaho at 279, 77 P.3d at 968.
We next consider whether the district court abused its discretion in finding that the evidence was
admissible under I.R.E. 403.
           b. The district court did not abuse its discretion in finding that the probative
              value of Ehrlick’s attempts to contact Jenkins was not outweighed by the
              danger of unfair prejudice.
       In its written decision on the State’s motion in limine, the district court explicitly
recognized that the determination whether the probative value of evidence was substantially
outweighed by the danger of unfair prejudice was committed to its discretion. The district court
acted within the bounds of its discretion and consistently with the appropriate legal standards.
This is evident from the district court’s citation to, and proper interpretation of, relevant case law
including Rolfe and Pokorney. Finally, the district court reached its decision by an exercise of
reason, established by the district court’s clear weighing of the probative value versus the unfair
prejudice. Accordingly, we hold that the district court did not abuse its discretion in admitting
the evidence of Ehrlick’s attempted contact with Jenkins.



                                                 20
       3. The district court did not err in admitting evidence that Ehrlick visited the
          emergency room after an attempted suicide or a feigned suicide attempt.
       On July 30, 2009, law enforcement officers began to formally question Ehrlick about his
role in the disappearance of R.M. At this time, Ehrlick had not been arrested and had not been
provided Miranda warnings. At the conclusion of the July 30 interview, Ehrlick told law
enforcement officers that he would return the next morning and “tell [them] the truth” or “tell
[them] what happened.” The morning of July 31, around the time investigators expected Ehrlick
to arrive for further questioning, they received a call from Jenkins’ sister, Tricia, with whom
Ehrlick had been staying. Tricia informed them that she believed Ehrlick had overdosed on
sleeping pills. Tricia believed that Ehrlick had overdosed because, when she tried to awaken him
to take him to the police station, he was extremely somnolent and difficult to rouse. Tricia
noticed that Ehrlick’s bottle of sleeping pills, which was “at least a quarter or so full” the night
before, was empty. Tricia was instructed to bring Ehrlick to the police station where they would
have an ambulance waiting. From there, Ehrlick was transported to the emergency room at St.
Alphonsus Regional Medical Center.
       There, doctors monitored Ehrlick, ran diagnostic tests, and determined that Ehrlick was
medically clear. The attending physician charted that Ehrlick “was quite reluctant, seemingly
selectively to answer some of my questions, while all other questions, he would answer and then
became quite annoyed and agitated then yelling obscenities, cussing and cursing, calling us
names.” After speaking with Tricia, the physician had concerns that Ehrlick had ingested a large
amount of benzodiazepine. Ehrlick denied any suicidal intentions. After a couple of hours at the
hospital, Ehrlick became much more alert. Officers remained with Ehrlick in the hospital room.
They witnessed Ehrlick place a phone call in which he became extremely emotional, threw the
phone, and began crying. Following this outburst, Ehrlick was admitted to Intermountain
Hospital and placed on a twenty-four hour mental hold.
       The prosecution filed a motion in limine seeking to present evidence of Ehrlick’s July 31,
2009, emergency room visit. A hearing was held to address the motion. In its written decision on
the motion, the district court concluded that:
       The jury could reasonably find by a preponderance of evidence that Ehrlick
       attempted suicide and that this attempt was a diversionary tactic used by Ehrlick
       to draw attention away from him and to slow or thwart police investigation as
       well as creating additional delays in the reporting of the death of [R.M.]. The
       evidence is relevant to Ehrlick’s state of mind and intent.

                                                 21
The district court also concluded that the danger of unfair prejudice in admitting the evidence did
not substantially outweigh its probative value.
       Ehrlick contends that the district court erred by permitting the State to present evidence
of his July 31 hospital visit. Ehrlick argues that there was no evidence before the district court
that he attempted or feigned an attempt to commit suicide; thus, the district court’s finding that
Ehrlick attempted suicide is clearly erroneous. Ehrlick asserts that because there was not
sufficient evidence to establish the alleged conduct, the evidence presented was not relevant.
Ehrlick insists that the evidence only proves that Jenkins’ sister believed he may have attempted
suicide. Ehrlick further argues that if the evidence is found to be relevant, its probative value is
outweighed by the prejudicial effect because it tends to show that Ehrlick has a substance abuse
problem. Finally, Ehrlick argues that the admission of this evidence violated his Fifth
Amendment privilege against self-incrimination as a comment on his silence.
       The State responds that the evidence presented established that Ehrlick spent the night
trying to call Jenkins, leaving six voice messages, drinking heavily, and either took or faked
taking eighty Lorazepam pills. This evidence, the State argues, supports the inference that
Ehrlick made either a genuine or feigned attempt to take his life in order to manipulate Jenkins or
otherwise interfere with the police investigation.

           a. A reasonable jury could conclude that Ehrlick either attempted suicide or
              feigned an attempt at suicide.
       “Before considering whether prior uncharged conduct is admissible under I.R.E. 404(b),
the Court must also confirm that a reasonable jury could believe that the conduct actually
occurred.” State v. Johnson, 148 Idaho 664, 667 n.2, 227 P.3d 918, 921 n.2 (2010). In this case, a
reasonable jury could conclude that Ehrlick either attempted suicide or feigned an attempt at
suicide. This conclusion is reasonable based on Ehrlick’s condition the morning of July 31 and
the testimony of Jenkins’ sister that Ehrlick’s pill bottle went overnight from being a least a
quarter full to empty. Additional evidence showed that for Ehrlick’s pill bottle to be empty on
the morning of July 31, he would have had to have ingested eighty-two Lorazepam tablets or
intentionally disposed of them in some other manner.
           b. The evidence of Ehrlick’s attempt or feigned attempt to commit suicide was
              relevant to establish consciousness of guilt.
       Behavior indicative of a consciousness of guilt encompasses a wide range of acts,
including attempted or feigned attempted suicide. 29 Am. Jur. 2d Evidence § 318 (2014). More

                                                  22
specifically, “[e]vidence of attempted suicide by a person who is, at the time of the attempt or
thereafter, charged with or suspected of a crime, is relevant as possibly indicating consciousness
of guilt and admissible at trial for that crime for whatever weight the jury chooses to assign.” Id.
§ 547; see also State v. Hargraves, 62 Idaho 8, 20, 107 P.2d 854, 859 (1940) (evidence that
defendant obtained a shaving brush concealing a bullet and four grains of morphine from outside
of the jail was properly introduced for the purpose of establishing an attempt upon the part of
appellant to commit suicide because it showed a consciousness of guilt); State v. Mitchell, 450
N.W.2d 828 (Iowa 1990) (evidence of attempted suicide admissible to show consciousness of
guilt where suspect attempted suicide in back of squad car en route to jail when suspect was
aware of potential kidnapping charges).
       In this case, evidence of Ehrlick’s visit to the hospital and attempt or feigned attempt to
commit suicide was relevant to establish consciousness of guilt because the evidence, when
viewed in the context of the police interview the preceding day, had a tendency to establish that
Ehrlick was seeking to delay or avoid contact with law enforcement.
           c. The district court did not abuse its discretion in finding that the probative
              value of Ehrlick’s attempted or feigned attempted suicide was not
              outweighed by the danger of unfair prejudice.
       The district court explicitly recognized that this decision was committed to its discretion.
The district court acted within the bounds of its discretion and consistently with the applicable
legal standards. This is evident from the district court’s citation and proper interpretation of
relevant case law including Sheahan, Pokorney, Rossignol, Grist and Huddelston v. United
States, 485 U.S. 681 (1988). The district court reached its decision by an exercise of reason, as
established by the court’s clear articulation of its finding that the probative value of the evidence
was not substantially outweighed by the danger of unfair prejudice. The district court did not
abuse its discretion.
           d. Admission of evidence that Ehrlick attempted or feigned an attempted
              suicide did not violate his Fifth Amendment right against self-incrimination.
       Ehrlick argued to the district court that admission of evidence that he attempted or
feigned an attempt at suicide would violate his Fifth Amendment right to remain silent. The
district court wrote:
       The constitutional right against self-incrimination applies when silence is used
       solely for the purpose of implying guilt. State v. Moore, 131 Idaho 814, 821, 965
       P.2d 174 (1998). In Moore, the state was allowed to present evidence that

                                                 23
       defendant fled the jurisdiction when he became aware of an investigation into
       alleged sexual abuse involving him as the suspect. On appeal he argued that this
       evidence violated his constitutional right to remain silent. The court stated that
       because “the evidence was probative on the issue of flight and was admitted for
       that purpose and not directly as an admission of guilt, we hold that the district
       court did not err in admitting the testimony.” The primary purpose of the evidence
       is to show Ehrlick’s attempted suicide. The evidence goes to his state of mind ….
       The purpose is not to directly show an admission of guilt of his involvement in
       the murder.
       “Whether the admission of evidence violates a defendant’s right to remain silent is a
constitutional question which this Court reviews de novo.” Moore, 131 Idaho at 820, 965 P.2d at
180 (citing Harris v. State Dep’t of Health & Welfare, 123 Idaho 295, 847 P.2d 1156 (1992)).
“[D]efendants’ Fifth Amendment right not to have their silence used against them in a court
proceeding is applicable pre-arrest and pre-Miranda warnings.” Id. “The constitutional right
against self-incrimination is not absolute, however, and applies only when the silence is used
solely for the purpose of implying guilt.” Id. at 821, 965 P.2d at 181.
       Here, as in Moore, the evidence of Ehrlick’s attempted or feigned attempted suicide and
subsequent hospital visit was offered as probative evidence of a consciousness of guilt and not as
a comment on the invocation of the privilege to remain silent to directly imply an admission of
guilt. Id. Accordingly, we conclude that the admission of this evidence did not violate Ehrlick’s
Fifth Amendment privilege against self-incrimination.
D. The admission of the testimony of Samantha Burnett was not reversible error.
       The prosecution called Samantha Burnett during its case in chief. Burnett and her three
children, ages seven, nine, and eleven, had resided at the apartment complex for six months
when R.M. disappeared. Burnett testified that in the summer of 2009 she accompanied her
children to the apartment complex’s community pool and playground area every day; this
included the evening of July 24 between the hours of 8:00 p.m. and 10:00 p.m. Burnett testified
that as she was returning to her apartment from the pool she saw and heard Jenkins screaming for
R.M., learned that he was missing, and joined the search for R.M. Burnett’s search efforts
entailed walking around the apartment complex, calling R.M.’s name, and asking people she
encountered if they knew anything about R.M.’s whereabouts. Burnett helped search for R.M.
until 2:00 a.m. During direct examination, the prosecution questioned her as to whether a
birthday party took place at the apartment complex on July 24:



                                                 24
       [Counsel for the State]: Now [while searching], did you hear any talk about a
       birthday party?
       [Burnett]: Yes, that was the first story that I had heard.
       [Counsel for the State]: And what in particular had you heard?
       [Burnett]: I heard that [R.M.] was going to a birthday party and they weren’t sure
       which apartment it was in, but that he was going there and that’s when he
       disappeared.
       [Counsel for the State]: And during the time that you were searching that night,
       did you see any signs of a birthday party?
       [Burnett]: No.
       ….
       [Counsel for the State]: And during that night when you were search [sic], did
       you talk to children who were out?
       [Burnett]: Yes.
       ….
       [Counsel for the State]: Do you have any idea how many kids that you went and
       talked to that night?
       [Burnett]: At least 15 or 20.
       [Counsel for the State]: And during the time that you were out searching, did
       you come across anybody who knew anything about a birthday party?
       [Defense Counsel]: Objection. Hearsay….
       ….
       The Court: The objection’s overruled.
       [Counsel for the State]: Ma’am while you were out searching, did you find
       anybody who knew anything about a birthday?
       [Burnett]: No.
       [Counsel for the State]: At the time that you heard this, did you personally
       question the birthday story?
       [Burnett]: Yes.
       [Defense Counsel]: Objection. Lack of relevance.
       The Court: The objection’s overruled.
       Ehrlick argues that although the prosecution did not ask Burnett to reveal any particular
statement made by any particular declarant, Burnett’s testimony constituted hearsay. Ehrlick
contends that the children providing Burnett with information as to the existence or non-
existence of a birthday party were making assertions which were then offered to prove the truth

                                                25
of the matter asserted. Ehrlick argues that because the statements were hearsay and the
prosecution did not identify an exception to the hearsay rules, the district court abused its
discretion by allowing Burnett to testify that she did not find anyone who knew anything about a
birthday party.
    1. Burnett’s testimony that none of the children she talked to were aware of a birthday
       party was inadmissible hearsay.
         “ ‘Hearsay’ is 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). “A
‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is
intended by the person as an assertion.” I.R.E. 801(a). Thus, there are three essential components
of hearsay evidence: (1) a statement or assertive conduct; (2) made out of court, other than by a
witness testifying at the current trial; that is (3) offered to prove the truth of the matter asserted.
I.R.E. 801(a), (c). If these elements are not satisfied, the evidence is not hearsay. Id. “Hearsay is
not admissible unless specifically provided for in the Rules of Evidence.” State v. Joy, 155 Idaho
1, 13, 304 P.3d 276, 288 (2013) (citing I.R.E. 802).
         Burnett’s testimony that none of the children she spoke to were aware of a birthday party
was hearsay. Although Burnett did not specifically recount the precise details of her
conversations with the children, she conveyed the substance of their reports. The children’s
responses to her question were oral assertions that the children were not aware of a birthday
party. The assertions were made out of court by people other than Burnett. They were offered for
the purpose of proving the truth of the assertions, i.e., that children living in the apartment
complex were not aware of a birthday party. Thus, Burnett’s testimony as to the children’s lack
of awareness of a birthday party was hearsay. 8 As the State has not identified a relevant
exception to the hearsay rule, the district court erred by admitting this testimony. I.R.E. 802.
    2. The admission of Burnett’s testimony as to the information she received from the
       children was harmless error.
         As previously discussed, 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)). Five other
witnesses testified that they spoke with children about their awareness of a birthday party. David
8
  We note the State’s inconsistent positions as to the hearsay nature of children’s reports as to awareness of a
birthday party. In part IV(E) of this opinion, infra, the State correctly contends that a statement by a child to a police
officer regarding talk of a birthday party was inadmissible hearsay.

                                                           26
Ehrlick, the defendant’s younger brother, testified that he spoke with “20 or more” children and
an unspecified number of adults at the complex on the evening of R.M.’s disappearance and
none of them knew anything about a party. Officer Guy McKean testified that he and another
officer went door-to-door in the complex in a search for R.M. and that no one had heard of a
birthday party. Pamela Duncan testified that she had asked children about a birthday party and
none had heard anything about one. Officer Deidre Hart testified that during the course of her
search, she did not come across anyone with knowledge of a birthday party. Perhaps the most
extensive testimony came from Pamela Anderson, who testified that she spoke with children in
the neighborhood on the night of July 24 and “nobody knew anything about a birthday party.”
Based upon the children’s reports, Anderson explained that she thought that Ehrlick’s “story”
about a birthday party was “a diversion,” a conclusion she reached “because the children in that
complex know everything that goes on around there. I mean, somebody would—someone else
would had to have known about a birthday party.”
       In view of the voluminous testimony presented by other witnesses that children in the
complex were unaware of a birthday party–evidence that is not challenged in this appeal–we
conclude that the erroneous introduction of Burnett’s testimony did not contribute to the verdict
obtained.
   3. Burnett’s lay opinion testimony was admissible under I.R.E. 701.
       Ehrlick also argues that the district court erred in admitting lay opinion testimony from
Burnett because it was inadmissible under I.R.E. 701. Ehrlick points to the following portion of
Burnett’s testimony:
       [Counsel for the State]: At the time that you heard this, did you personally
       question the birthday story?
       [Burnett]: Yes.
       [Defense Counsel]: Objection. Lack of relevance.
       The Court: The objection’s overruled.
       [Counsel for the State]: Why?
       [Defense Counsel]: Again, I object to this as her impressions are irrelevant….
       The impression of noninterested people, 200 people that live in the 200
       apartments there, begs the jury to speculate.
       [Counsel for the State]: Judge, I don’t think it’s asking her to speculate about
       anything. We’re simply asking her about her impression as to the story that the
       child was going to a birthday party and disappeared.

                                               27
       The Court: Based on her living in the apartment complex?
       [Counsel for the State]: Yes.
       ….
       The Court: … [T]he objection is overruled.
       ….
       [Counsel for the State]: Ms. Burnett … Based on the information that you
       received that night, did the story that you were hearing about the child going to a
       birthday party make sense to you?
       [Burnett]: No, it did not.
       [Counsel for the State]: Why not?
       [Burnett]: It was 10 o’clock at night. There were no signs of a birthday party….
Ehrlick argues that the district court erred by allowing Burnett to testify that her opinion was that
the birthday party story did not make sense. Ehrlick asserts that the district court erred because
Burnett’s testimony was not helpful to the jury and amounted to an inadmissible comment on
Ehrlick’s credibility.
                The Idaho Rules of Evidence provide that a lay witness may give
       testimony containing an opinion or inference if the testimony is “limited to those
       opinions or inferences which are (a) rationally based on the perception of the
       witness and (b) helpful to a clear understanding of the testimony of the witness or
       the determination of a fact in issue, and (c) not based on scientific, technical or
       other specialized knowledge....” I.R.E. 701. This Court has held that the
       “perception of the witness” requirement in Rule 701(a) requires opinions and
       inferences to be based upon “the witness’s personal knowledge of events or
       facts....” State v. Raudebaugh, 124 Idaho 758, 767, 864 P.2d 596, 605 (1993).
       This requires “the same personal knowledge of events as required by I.R.E. 602,”
       which provides that “[a] witness may not testify to a matter unless evidence is
       introduced sufficient to support a finding that the witness has personal knowledge
       of the matter.” Id. (quoting I.R.E. 602). Thus, a lay witness may give an opinion
       or inference if doing so helps to explain the witness’s testimony or to determine a
       disputed fact and the opinion or inference is based upon the witness’s personal
       knowledge as demonstrated by evidence.
Joy, 155 Idaho at 16, 304 P.3d at 291.
               The decision to admit opinion testimony, whether lay opinion or expert
       opinion, rests within the discretion of the lower court, while the determination of
       its weight lies with the jury. State v. Cutler, 94 Idaho 295, 299, 486 P.2d 1008,
       [1012] (1971). “The trial court’s broad discretion in admitting evidence ‘will only
       be disturbed on appeal when there has been a clear abuse of discretion.’ ” State v.
       Merwin, 131 Idaho 642, 646, 962 P.2d 1026, 1030 (1998) (quoting Walker v. Am.
       Cyanamid Co., 130 Idaho 824, 832, 948 P.2d 1123, 1131 (1997)).
State v. Almaraz, 154 Idaho 584, 602, 301 P.3d 242, 260 (2013).

                                                 28
        Burnett’s testimony was rationally based on her own perceptions, it was helpful to the
jury, and the basis for the opinion did not rely on scientific, technical or other specialized
knowledge. Burnett’s testimony established that she had personal knowledge of the matter on
which she was rendering an opinion. She testified that she had lived in the apartment complex
with her three children for six months and had spent all day, every day, of the summer in the
complex’s community areas and had a strong familiarity with the social norms of the
community. We conclude that the district court did not abuse its discretion in allowing Burnett to
give lay opinion testimony.
E. The district court did not err in holding that out of court statements made by a juvenile
   to Detective Brechwald were inadmissible hearsay statements.
        The State called Boise City detective, Matthew Brechwald, as a witness. In July and
August of 2009, Brechwald was assigned to the department’s Special Victims Unit and
participated as a liaison officer 9 in the search for R.M. As a liaison officer, Brechwald also
collected evidence when circumstances permitted. The issue on appeal regarding Brechwald’s
testimony arose during cross-examination:
        [Defense Counsel]: In particular, did you have contact with a lady who lived
        upstairs named Carol Carillo?
        [Brechwald]: I did.
        [Defense Counsel]: And after talking with her you actually talked to her son,
        [D.T.], did you not?
        [Brechwald]: I believe I did, but to be specific I would need to refresh my
        memory.
        [Defense Counsel]: And do you recall [D.T.], young [D.T.], telling you that he
        had seen [R.M.] with a child –
        [Counsel for the State]: Objection.
        The Court: Pardon?
        [Counsel for the State]: Counsel is presenting hearsay as he’s testifying.
        Outside the presence of the jury, defense counsel responded to the State’s hearsay
objection with the following offer of proof:
        Again, I think the offer of proof that I would make, in a very generic sense, is that
        this [D.T.] is asked if he had ever played with [R.M.], and he said he had played
        with [R.M.] it is kind of unclear when. But certainly the impression that is left is

9
  Aa a liaison officer, Brechwald was assigned to Ehrlick and Jenkins to act as an intermediary between law
enforcement and R.M.’s family. Brechwald spent many hours with Ehrlick and Jenkins in this capacity.

                                                    29
        that it was very soon in time to the time he came missing. The same thing–the
        same argument is going to apply to [K.D.] as well, in that when he talks to her, or
        when she talks to law enforcement, she says she played with [R.M.] on the swing,
        then she was at the hot tub or pool area with her family members and doesn’t say
        that he was in the pool, but says that there was talk of a birthday party.
Defense counsel argued for the admission of D.T. and K.D.’s statements, observing that the State
“repeatedly said that [Ehrlick’s] statements about [R.M.’s] location and his activities on the 24th
were false, and there are other people who said that they had seen [R.M.] on the 24th, which
certainly impeaches or rebuts that inference.” Further, defense counsel argued that K.D.’s
statement should be admitted because it was not offered for the truth of the matter, but to explain
why Ehrlick told law enforcement that R.M. was at a birthday party. The district court sustained
the objection, finding that the testimony would confuse the jury and that the statements were
hearsay.
        Ehrlick argues that the district court abused its discretion in sustaining the State’s
objection to Brechwald testifying that K.D. told him that there was talk of a birthday party.
Ehrlick contends that the statement would not have been hearsay because it was not offered for
the truth. Instead, Ehrlick asserts that the evidence was offered to demonstrate that he was not the
only person who spoke about a birthday party. Ehrlick argues that the testimony would not have
confused the jury if the district court would have merely instructed the jury that the evidence was
not to be considered for its truth.
        As previously noted, hearsay is: (1) a statement or assertive conduct; (2) made out of
court, other than by a witness testifying at the current trial; that is (3) offered to prove the truth of
the matter asserted. Here, the defense sought to elicit Brechwald’s testimony that K.D. told him
of “talk of a birthday party.” This was clearly an out-of-court statement made by someone other
than Brechwald. Although Ehrlick asserts otherwise, the testimony was clearly offered for the
purpose of establishing the truth of the assertion, i.e., that there was “talk of a birthday party.” It
was therefore hearsay. Ehrlick does not contend that the proposed testimony was admissible
under an exception to the hearsay rules. Thus, for the same reasons that we have concluded that
the district court erred in admitting the testimony of Samantha Burnett regarding the reports she
received from children, the district court did not err by excluding this testimony.
F. The district court erred by permitting the State to question Ehrlick about an agreement
   and custody order to which he was not a party; however, the error was harmless.



                                                   30
       On direct examination, Ehrlick testified that in the summer of 2008, while Jenkins was at
work from 7:00 a.m. to 3:00 p.m., he was the primary caregiver for R.M., R.A., and A.E.,
Jenkins’ three children. Ehrlick also testified that, in the spring of 2008, he was at home “every
day” taking care of R.A. and A.E., which consumed nearly all of his time. On cross-examination,
the prosecutor asked Ehrlick:
       [Counsel for the State]: Isn’t it true that in January of 2008, Rusty [Aimes],
       [R.A.’s] father, filed a petition with the court saying that [R.A.] was in an unsafe
       and unsatisfactory environment while Melissa was living with you?
       [Ehrlick]: I don’t know.
       [Counsel for the State]: Isn’t it true that, as part of the agreement for temporary
       custody–
       [Defense Counsel]: Objection, Your Honor. I don’t believe that this has been
       covered by any previous–
       [Counsel for the State]: I think this is proper cross-examination. It goes to the
       credibility of this witness, Judge.
       The Court: The objection is overruled.
       [Counsel for the State]: Isn’t it true that Melissa Jenkins agreed that you would
       not have contact with R.A. as part of the temporary custody order while she was
       fighting with Rusty Aimes in court over custody of [R.A.]?
       [Ehrlick]: I don’t know that.
       [Counsel for the State]: And isn’t it true that Rusty Aimes specifically said he
       didn’t want Melissa – or didn’t want [R.A.] –
       [Defense Counsel]: Objection. Hearsay. Lack of foundation.
The district court removed the jury to receive argument on the objection. The prosecutor argued
that Ehrlick put his credibility at issue when he decided to testify and the questions related to
Ehrlick’s testimony that “he watched [R.A.] and took care of two toddlers and was with them all
the time.” Defense counsel responded that the agreement and custody order did not demonstrate
that Ehrlick did not actually watch R.A., that the door was not opened to its admission, and that it
was unfairly prejudicial.
       The district court overruled the objection. After the jury returned, the State began to
question Ehrlick about the custody order:
       [Counsel for the State]: Mr. Ehrlick … we were talking about [R.A.], and you
       had said earlier that you baby-sat her all the time during the spring of 2008. Do
       you recall that?
       [Ehrlick]: Yes.

                                                31
       [Counsel for the State]: In fact, that wasn’t supposed to be going on, correct?
       [Ehrlick]: I don’t know anything about that.
       [Counsel for the State]: Can I have the witness handed what’s been marked as
       State’s 110.
                                       (Marshal complied.)
       Mr. Ehrlick you’ve been handed a certified copy of a temporary custody order
       involving [R.A.], Melissa Jenkins’ daughter; do you see that?
       [Ehrlick]: Yes, I do.
       ….
       [Counsel for the State]: Can you read me what it says on line 2 on page 2?
       [Defense Counsel]: I’ll object to that again as being irrelevant to the issues in this
       case.
       [Counsel for the State]: The same issue we discussed yesterday, Judge. It’s a
       credibility issue.
       The Court: Okay. Well, based on relevancy, the objection’s overruled.
       [Counsel for the State]: Can you read that line, please, sir?
       [Ehrlick]: It says, “Neither party shall leave the party’s [sic] minor child alone
       with Danny Ehrlick.”
       ….
       [Counsel for the State]: Move to admit State’s 110.
       [Defense Counsel]: Again, objection. Lack of foundation. Lack of relevance.
       Hearsay objection.
       ….
       The Court: Okay, Exhibit 110 is admitted.
During a break in the testimony and outside the presence of the jury, the district court revisited
its decision to admit State’s Exhibit 110. The district court expressed its concern as to the lack of
evidence that Ehrlick was aware of the agreement and order as well as the lack of evidence, if
any, upon which the order was entered. The district court then reversed its earlier order admitting
the exhibit and deemed it withdrawn.
       Ehrlick argues that the district court erred by permitting the State’s questioning on this
subject because the evidence was irrelevant. Alternatively, Ehrlick contends that even if the
evidence was relevant, the probative value was outweighed by prejudice. The State responds that
the existence of the order had some tendency to impeach Ehrlick’s testimony that he was R.A.’s
primary caregiver.

                                                 32
       Whether evidence is relevant is an issue of law. The trial court has broad
       discretion in the admission of evidence, and its judgment will only be reversed
       when there has been an abuse of that discretion. Thus, the inquiry is two-fold; we
       must first freely review and determine whether the proffered evidence is relevant,
       and secondly we evaluate whether the district court abused its discretion in
       determining whether the probative value was outweighed by unfair prejudice.

State v. Meister, 148 Idaho 236, 239, 220 P.3d 1055, 1058 (2009) (internal quotations and
citations omitted). “[A]ll relevant evidence is admissible, unless otherwise provided by the Idaho
Rules of Evidence or other rules for the courts of Idaho.” Id. at 240, 220 P.3d at 1059 (citing
I.R.E. 402). Evidence is relevant if it 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 it would
be without the evidence.” I.R.E. 401. Evidence relating to the credibility of a witness is always
relevant. Mulford v. Union Pac. R.R., 156 Idaho 134, 141, 321 P.3d 684, 691 (2014). However,
even relevant evidence “may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice.” Id. (quoting I.R.E. 403).
       In the absence of any evidence that Ehrlick was aware of Jenkins’ agreement relating to
R.A.’s custody or the resulting order, this evidence was not relevant to Ehrlick’s credibility. The
bare facts of the existence of the agreement and order do not, in themselves, tend to demonstrate
the falsity of Ehrlick’s claim to have cared for the children. The district court erred by permitting
the State’s questions, which error the district court evidently recognized when it withdrew State’s
Exhibit 110 from evidence. Thus, the corollary issue that we must decide is whether the district
court’s error was harmless.
       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)). We
conclude that the district court’s error did not contribute to the verdict obtained. We first observe
that the brief testimony regarding the custody agreement occurred during the course of a trial
lasting seven weeks. In addition to the compelling evidence that Ehrlick was aware of R.M.’s
death prior to reporting him missing on July 24, discussed earlier in section IV(A) of this
opinion, there was other compelling evidence linking Ehrlick to R.M.’s murder, despite Ehrlick’s




                                                 33
denial of responsibility. 10 Vomited matter containing oatmeal and raisins was found next to the
hole in the wall. Oatmeal and raisins was a meal that Ehrlick forced R.M. to eat as a form of
discipline. Further, evidence was presented that R.M.’s inevitably-fatal abdominal injury was
accompanied by bruising consistent with Ehrlick’s admission that he placed his knees on R.M.’s
abdomen. Ehrlick weighed more than 275 pounds. We conclude that the error in admitting and
questioning Ehrlick regarding the custody agreement was harmless.
G. Prosecutorial Misconduct.
         Ehrlick argues that the prosecution committed four acts of prosecutorial misconduct
during closing argument which deprived him of his right to a fair trial. However, Ehrlick only
contemporaneously objected to one of these alleged acts of misconduct. Ehrlick argues that each
act of misconduct not followed by a contemporaneous objection constitutes fundamental error,
and that none of the acts of misconduct are harmless.
         This Court’s analysis of claims of prosecutorial misconduct is determined by the presence
or absence of a contemporaneous objection to the alleged misconduct. For alleged acts of
prosecutorial misconduct resulting in a contemporaneous objection, this Court engages in a two-
step analysis–first asking whether misconduct occurred and, if so, whether the misconduct was
harmless. Perry, 150 Idaho at 227, 245 P.3d at 979. For unobjected-to acts of alleged
prosecutorial misconduct, this Court reviews the alleged misconduct under a three part analysis:
first, to determine whether misconduct occurred; second, whether the alleged misconduct
constituted fundamental error; and third, whether the misconduct was harmless. Id. To establish
fundamental error,
         [T]he defendant bears the burden of persuading the appellate court that the alleged
         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 record, including information as to whether the failure to object was
         a tactical decision); and (3) was not harmless.



10
   Ehrlick was repeatedly impeached during the course of cross-examination. This impeachment consisted of his
admission to three prior felony convictions for crimes of dishonesty, false statements under oath before another
court, and exposition of multiple inconsistencies between Ehrlick’s trial testimony and his earlier statements to law
enforcement, including whether he placed his body weight on R.M.’s abdomen by kneeling on R.M.
   The jury was undoubtedly influenced by Ehrlick’s conduct during the course of the investigation and his
explanations for that conduct at trial. In addition to his clear efforts to mislead investigators and providing multiple
inconsistent reports, Ehrlick’s explanations for his behavior included those that were beyond strange. For example,
he testified that he joked with a detective about the size of R.M.’s head in response to the detective’s statement that
he believed that R.M.’s head caused the hole in the wall.

                                                          34
Id. at 228, 245 P.3d at 980. This test is conjunctive and permits the Court to conduct the three-
pronged inquiry in the most pragmatic order. See Jeffrey Bower, Clarity and Balance: Appellate
Review of Harmless Error, Fundamental Error, and Prosecutorial Misconduct After State v.
Perry, 48 Idaho L. Rev. 85, 109 (2011). Ehrlick’s objected-to claim of prosecutorial misconduct
will be addressed first.
       1. The prosecution did not commit misconduct by stating that Ehrlick lied on
          multiple occasions and by calling his credibility into question.
       In closing argument, the prosecution went into great detail when addressing
inconsistencies in Ehrlick’s accounts of R.M.’s disappearance and Ehrlick’s efforts to control the
investigation. After discussing evidence illustrating Ehrlick’s inconsistent statements to law
enforcement, his efforts to plant evidence, and fabricate stories regarding R.M.’s whereabouts,
the following exchange occurred:
       [Counsel for the State]: [Ehrlick] also said that his dad lied. And his dad said
       during the 8:26 phone call there was no mention of [R.M]. Again, he said that,
       from the witness stand, that his father had lied during testimony. And he said that
       his brother and he said that his niece had lied about all the things they said about
       the way that [R.M.] was treated that summer. He accused them of lying, and he
       told you these people are not being truthful.
       Reality is he is the one who was dishonest during his testimony. That’s relevant to
       credibility, and that’s relevant to your determination of what’s going on. If he has
       nothing to hide, if he’s innocent of what he’s accused of, why does he need to
       come in and lie? Why does he need to lie to investigators and why does he need to
       lie here? He told you that he committed –
       [Defense Counsel]: Objection, Your Honor. I don’t think it’s proper for counsel
       to call the defendant a liar….
       [Counsel for the State]: Judge, we’re talking about specific lies that Mr. Ehrlick
       told. But if that word offends counsel, I’ll try to use a different word.
       The Court: All right, thank you.
       [Counsel for the State]: Ladies and gentlemen, you know that this defendant was
       dishonest with you when he testified.
       [Defense Counsel]: Objection, again, Your Honor. I don’t think it’s appropriate
       for counsel to make a comment that the defendant was dishonest in this
       courtroom. He can talk about things that happened before, but he can’t call the
       witness a liar, just like I can’t call his witnesses liars.
       [Counsel for the State]: Judge, I think it’s relevant because, number one, he took
       the witness stand, and he accused a lot of other people of lying. He called the
       credibility of witnesses into question.


                                               35
        And, second, he admitted to being dishonest …. He changed his story a number of
        times when he was testifying ….
        The Court: Okay, ladies and gentlemen, you’ve previously been instructed that
        the closing arguments are not evidence. So you’ve heard all the evidence, and it’s
        up to you to determine the credibility of the individuals who have testified.
        Based on the above excerpt, Ehrlick argues that the prosecution’s comments amounted to
more than a fair comment on the evidence and went beyond the inferences appropriately drawn
from the evidence. Ehrlick argues that the prosecution, in expressing opinions on his credibility
and disparaging him to the jury, interfered with the jury’s ability to make an impartial decision
and deprived him of his right to a fair trial.
        “The general rule is that ‘both parties are given wide latitude in making their arguments
to the jury and discussing the evidence and inferences to be made therefrom.’” State v. Dunlap,
155 Idaho 345, 368, 313 P.3d 1, 24 (2013) (quoting State v. Severson, 147 Idaho 694, 720, 215
P.3d 414, 440 (2009)). Accordingly, in closing argument “both sides ‘are entitled to discuss
fully, from their respective standpoints, the evidence and the inferences’ that should be drawn
from it.” Id. at 369, 313 P.3d at 25 (quoting State v. Sheahan, 139 Idaho 267, 280, 77 P.3d 956,
969 (2003)). “[I]n a closing argument, the parties are entitled to explain how, from their own
perspectives, ‘the evidence confirms or calls into doubt the credibility of particular witnesses.’ ”
Id. “However, the prosecutor may not ‘express a personal belief as to the credibility of witnesses,
unless the comment is based solely on inferences from evidence presented at trial….’ ” Id.
        The prosecutor did not engage in misconduct by commenting on Ehrlick’s credibility. At
no point did the prosecutor advance his personal opinion or belief that Ehrlick was a liar. Instead,
the prosecutor explained how the evidence illustrated that Ehrlick was dishonest during the
investigation and later at trial.
        2. Ehrlick’s unobjected-to claims of prosecutorial misconduct.
        Although not the subject of objections during trial, Ehrlick argues that the prosecution
committed misconduct by: (1) arguing that certain actions by Ehrlick constituted torture even
though they did not fit within the Idaho Code’s definition of torture; (2) misconstruing evidence
presented at trial; and, (3) arguing evidence for an improper purpose.
                a. The prosecution did not commit misconduct by diminishing its burden or
                   by attempting to modify the statutory definition of “torture.”
        The indictment charged Ehrlick with first-degree murder pursuant to I.C. § 18-4001,
which provides, in pertinent part:

                                                 36
                Murder is the unlawful killing of a human being … with malice
        aforethought or the intentional application of torture to a human being, which
        results in the death of a human being. Torture is the intentional infliction of
        extreme and prolonged pain with the intent to cause suffering. It shall also be
        torture to inflict on a human being extreme and prolonged acts of brutality
        irrespective of proof of intent to cause suffering.
        At trial, the prosecution called Dr. Allen Keller, an associate professor of medicine at
NYU School of Medicine. Dr. Keller specializes in “the evaluation, documentation, and
treatment of individuals who’ve been subjected to torture and other human rights abuses.” When
the prosecutor asked Dr. Keller to define torture as a term of art within his medical field, he
responded: “I would define torture … as severe physical or mental suffering inflicted for a
variety of reasons. It could be for punishment, intimidation, attempts at eliciting information.
                                                                                  11
When that’s done … by someone acting in an official capacity.”                         Dr. Keller indicated that
classic forms of torture generally combine physical, psychological, and social elements.
Throughout the direct examination of Dr. Keller, the prosecutor repeatedly asked whether certain
acts Ehrlick forced R.M. to undergo fell within the “classic definition” of torture. These acts
included: dead bugging, the chair, forcing R.M. to select between multiple forms of punishment,
isolation, forcing R.M. to eat oatmeal knowing that he despised it and it caused him to vomit,
putting his knees on R.M’s chest while R.M. was dead bugging, and striking R.M. with a board.
        In closing argument, the prosecutor directed the jury to consider Dr. Keller’s testimony
and argued that Ehrlick’s actions toward R.M. constituted torture under Dr. Keller’s classic
definition. The prosecutor stated:
        [Ehrlick] admitted to committing acts of torture. He admitted to doing things,
        doing the very things that would cause the injuries that [R.M.] died from ….
        We’re going to start first by talking about admitting to acts of torture. He told
        detectives, and he told you, from the witness stand, that he did a number of things
        to [R.M.], a number of things that Dr. Keller told you constitute torture, and that
        Dr. Keller told you constitute significant and serious abuse.
        The prosecutor continued with a discussion of the acts Ehrlick had admitted to which Dr.
Keller characterized as meeting the classical definition of torture. After recounting Dr. Keller’s
testimony, the prosecutor told the jury:
        In order to find [Ehrlick] guilty of first-degree murder, you need to find proof
        beyond a reasonable doubt of each of the charges that he’s been charged with ….
11
 When questioning Dr. Keller, the prosecutor ensured that the district court and the jury understood that Dr. Keller
was testifying regarding the “classical definition” of torture rather than Idaho’s statutory definition.


                                                        37
       Count one is first-degree murder. And the state has alleged two alternative
       theories of first-degree murder: One, aggravated battery on a child; the second,
       torture.
The prosecutor then methodically went through all the elements the jury had to find beyond a
reasonable doubt in order to find that Ehrlick tortured R.M. The prosecutor informed the jury
that extreme and prolonged pain and prolonged acts of brutality were separate elements stating:
“extreme and prolonged pain, extreme and prolonged acts of brutality. They’re separate
elements, but we’re going to talk about them together because it’s the same type of things.” The
prosecution then stated: “Acts that would cause extreme pain, acts of brutality–we’ve talked
about all these dead-bugging, both with and without the knees, the chair, the wall, hitting him
with the board.” The prosecution then discussed “prolonged” stating “we have to prove that these
are not only acts of pain, but it’s–extreme pain has to be prolonged. And the acts of brutally have
to be prolonged acts of brutally.”
       Ehrlick contends that the prosecution’s argument was tantamount to asking the jury to
disregard the jury instructions, refuse to apply Idaho law, and find Ehrlick’s actions were
torturous because Dr. Keller believed such conduct to be torturous. Ehrlick argues that the
prosecution committed “blatant error” in presenting a theme of torture, which included conduct
not within statutory definition of torture.
       “Misconduct may occur by the prosecutor diminishing or distorting the State’s burden to
prove the defendant’s guilt beyond a reasonable doubt.” State v. Erickson, 148 Idaho 679, 685,
227 P.3d 933, 939 (Ct. App. 2010). Here, Dr. Keller’s extensive testimony regarding what
constitutes torture under the classical definition within his field, rather than Idaho’s statutory
definition, was admitted without objection. Each of the prosecutor’s statements that Ehrlick’s
treatment of R.M. constituted torture comported with Dr. Keller’s testimony. The prosecutor did
not claim that Dr. Keller’s definition of torture governed the jury’s decision. To the contrary, the
prosecutor repeatedly referenced Idaho’s statutory definition of “torture,” broke the definition
down into elements, and reminded the jury that the prosecution had the burden to prove each
element beyond a reasonable doubt. We conclude the prosecution did not commit misconduct in
reminding the jury of evidence admitted at trial.
               b. The prosecution did not commit misconduct by mischaracterizing
                  evidence.



                                                38
       On cross-examination, Ehrlick testified that he dead-bugged R.M. a “couple” times in
late July of 2009. Ehrlick also testified that while R.M. was in the dead-bug position, he placed
his knees and body weight on R.M.’s chest and abdomen to keep him from wiggling. Ehrlick
told law enforcement that this had caused bruising on R.M.’s chest in the past. On direct
examination, the prosecution asked Dr. Groben whether R.M.’s fatal injury to his chest and
abdomen was consistent with a 260 to 280 pound man kneeling on his chest. Dr. Groben replied:
“Definitely.”
       In closing, the prosecutor repeatedly linked Ehrlick’s admissions to Dr. Groben’s
testimony, arguing that Ehrlick had effectively admitted to inflicting injuries that would have
caused R.M.’s fatal abdominal injury. Ehrlick takes issue with the following four statements,
arguing that they misstate the evidence. First,
       Let’s talk about the defendant’s words. Confession by words. Again, he told you
       everything that you need to know to know that he is the one who killed [R.M.] He
       told us a couple different things. He admitted to committing acts of torture. He
       admitted to doing things, doing the very things that would cause the injuries that
       [R.M.] died from.
Second,
       [Ehrlick] also admitted to doing things that would cause [R.M.’s] fatal injuries.
       And again, this is how we know he’s the one who killed [R.M.], because we know
       he’s the one, he’s admitting to torturing. He’s admitting to doing things that
       would cause [R.M.’s] fatal injuries, specifically dropping the knees, something
       that you’ve heard a lot about.
Third: “[Ehrlick] admitted that the fatal blows took place in the apartment. He told us, he told us
enough to know that [R.M.] suffered these fatal injuries inside that apartment when he talked
about what happened on the Thursday night, July 23rd.” Finally,
       We know that this defendant is the one who killed [R.M] because he had the
       motive to do it. He had the opportunity to do it. He told us that he tortured [R.M.].
       He told us that he did those things or did things that would cause the injuries that
       [R.M.] suffered. And, significantly, nobody else had the opportunity to do this.
       And nobody else had the opportunity to do this because [R.M.] never left the
       house on July 24th. There were no credible sightings of that child on July 24th.
       Ehrlick argues that the prosecution, in making these statements, committed misconduct
by misstating the evidence. Ehrlick asserts that the prosecution’s misstatements were calculated
to encourage the jury to reach a verdict of guilt based on facts not in evidence and this
misconduct amounted to fundamental error that is not harmless.


                                                  39
       In closing argument, the prosecution has a duty to avoid mischaracterizing or misstating
evidence. State v. Raudebaugh, 124 Idaho 758, 769, 864 P.2d 596, 607 (1993); State v. Rothwell,
154 Idaho 125, 134, 294 P.3d 1137, 1146 (Ct. App. 2013) (“It is improper to misrepresent or
mischaracterize the evidence in closing argument.”).
       We conclude that the prosecutor’s statements were proper comments on the evidence that
were supported by testimony and evidence from trial. Ehrlick admitted to kneeling on R.M.’s
chest while forcing R.M. to remain in the dead-bug position. Evidence was presented that
Ehrlick weighed approximately 277 pounds in late July of 2009. Dr. Groben testified that a 260–
280 pound man kneeling on the chest of a small boy would create the type of fatal injury that
R.M. sustained to his chest and abdomen area. Because the prosecutor’s closing argument
amounted to a fair comment based on logical inferences supported by the evidence, we find
Ehrlick’s claim of misconduct to be without merit.
              c. The prosecution did not commit misconduct by arguing evidence for an
                 improper purpose.
       Ehrlick argues that the prosecution committed misconduct by arguing evidence for an
improper purpose. Ehrlick takes issue with two statements made by the prosecutor during closing
argument regarding whether R.M. was limping due to an ankle or leg injury in late July of 2009.
First, “[w]e know that [R.M.] had prior injuries. We know that [R.M] had suffered a prior
abdominal injury three to five days earlier. We know that [R.M.] was limping. Those things
would affect his ability to go outside.” Second, “[s]ame with the head injury. We know that there
was bruising. We know that there was an ankle injury.” Ehrlick contends that the only evidence
that R.M. was limping or had an ankle injury was provided in conjunction with a hearsay
statement that was not offered for the truth of the matter asserted. Accordingly, Ehrlick argues
that the prosecution committed misconduct by offering evidence of the ankle injury as
substantive evidence.
       The improper presentation of evidence by a prosecutor may constitute misconduct. State
v. Severson, 147 Idaho 694, 718, 215 P.3d 414, 438 (2009). At trial, the State called Brent
Quilter, who was a detective in the Boise City Police Department’s Special Victims Unit during
July and August of 2009. Quilter was assigned to R.M.’s case as the lead investigator. Quilter
interviewed Ehrlick on July 30, 2009, and made a recording of the interview. The transcript of




                                               40
the interview was admitted as State’s exhibit 12-16T. 12 While testifying, Quilter indicated that
during the interview on July 30, Ehrlick told Quilter that R.M. had a limp. Additionally,
Ehrlick’s father testified that in the summer of 2009 he saw R.M. limping. Ehrlick’s father
described the limp as a “hard limp” and testified that the limp continued for a while. Quilter’s
testimony, exhibit 12-16T, and the testimony of Ehrlick’s father all provided substantive
evidence that R.M. sustained an ankle injury and had a limp in the summer of 2009. Therefore,
this claim of prosecutorial misconduct is without merit.
           H. Cumulative error.
           The cumulative error doctrine applies when there are multiple irregularities at trial.
Although these irregularities may individually be harmless, their collective impact may be such
as to deny the defendant a fair trial, thus violating the right to due process. State v. Abdullah, 158
Idaho 386, 449, 348 P.3d 1, 64 (2015); State v. Shackelford, 150 Idaho 355, 385, 247 P.3d 582,
612 (2010). “[A] necessary predicate to the application of the doctrine is a finding of more than
one error.” State v. Perry, 150 Idaho 209, 230, 245 P.3d 961, 982 (2010).
           In this case, we have identified three errors that, in isolation, we have determined to be
harmless: (1) the admission of Martin’s testimony regarding the credibility of witnesses; (2)
Burnett’s testimony regarding what children told her about their lack of awareness of a birthday
party; and (3) the State’s questioning of Ehrlick about the custody order to which he was not a
party. We have considered the cumulative impact of these errors. We conclude that these errors,
in combination, did not deprive Ehrlick of his due process right to a fair trial.
                                              V. CONCLUSION
           For the foregoing reasons, we affirm Ehrlick’s judgment of conviction for first-degree
murder and failure to report a death to law enforcement.


12
     The transcript from the July 30 interview provides, in relevant part:
            DET. QUILTER: … [Jenkins] described that it was unlikely that he was outside very much when
            she was away from work because he got hit in the ankle one time and he’d been hobbling around
            on one leg because his ankle was hurt.
            MR. EHRLICK: No, his ankle was fine.
            DET. QUILTER: So is she making that up?
            MR. EHRLICK: Yeah.
            DET. QUILTER: Well, that seems like a pretty big thing to make up.
            MR. EHRLICK: Yeah.
            DET. QUILTER: Why would she make that up?
            MR. EHRLICK: He had an accident on his ankle, yes, and he was hobbling on it for a while but-
            DET. QUILTER: Okay. So he was hobbling on his ankle.
            MR. EHRLICK: Yeah, for a while.

                                                        41
Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES CONCUR.




                                42
