                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 38017

STATE OF IDAHO,                                    )      2012 Opinion No. 33
                                                   )
        Plaintiff-Respondent,                      )      Filed: June 19, 2012
                                                   )
v.                                                 )      Stephen W. Kenyon, Clerk
                                                   )
TIMOTHY EUGENE WRIGHT,                             )
                                                   )
        Defendant-Appellant.                       )
                                                   )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bonneville County. Hon. Jon J. Shindurling, District Judge.

       Judgment of conviction for robbery, vacated and case remanded.

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

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
                 ________________________________________________
PERRY, Judge Pro Tem
       Timothy Eugene Wright appeals from his judgment of conviction for robbery, arguing
several violations of his constitutional right to a fair trial. Specifically, Wright asserts that:
(1) the district court erred when it placed him in restraints during trial and alerted the jury to that
fact; (2) the prosecutor committed misconduct by eliciting testimony that Wright refused to
consent to a search; and (3) the district court erred in allowing irrelevant evidence of prior acts to
be introduced at trial. Although Wright asserts these errors individually warrant a new trial, in
the alternative, Wright contends the errors throughout the proceedings deprived him of his right
to a fair trial under the doctrine of cumulative error. We vacate the judgment and remand for a
new trial.




                                                  1
                                                 I.
                                  FACTS AND PROCEDURE
       Wright, along with two other men, was arrested and charged for suspected involvement
in the armed robbery of a loan store. Two men entered the loan store, threatened employees at
gunpoint, stole over $2,000 in cash, and then fled in a vehicle driven by a third man. None of the
victims of the robbery positively identified Wright, but a considerable amount of circumstantial
evidence implicated him as one of the two men who entered the loan store. This evidence
included:    a witness’s description of one of the robbers matching Wright’s physical
characteristics; a victim’s positive identification of Wright’s brother as the other robber;
Wright’s presence as a passenger, along with his identified brother, in a vehicle pulled over by
police shortly after the robbery; shoes, worn by Wright, with treads matching footprints left at
the scene of the robbery; Wright’s and his two associates’ possession of bills in quantity and
denominations matching the stolen money; ski masks consistent with those worn by the robbers
found in the vehicle in which Wright was a passenger; and other circumstantial evidence. Along
with this evidence presented at Wright’s trial, the State also showed, over Wright’s objection on
grounds of relevance, that he and the two other men implicated in the robbery were in the area of
the robbery on the day prior to the crime.            Additionally, during its opening and closing
statements and through the testimony of two witnesses, the State brought up the fact that Wright
refused to consent to having the soles of his shoes photographed by investigators.
       Wright was initially represented by counsel, but on the second day of the four-day trial,
he sought permission from the district court to discharge his attorney and proceed pro se. The
district court held a short hearing, out of the presence of the jury, and granted Wright’s request.
Just prior to the hearing on the discharging of counsel, the district court had ordered the use of
restraints on Wright because of an incident with a marshal outside of the courtroom during a
court recess. After reseating the jurors, the district court alerted the jury to the fact that Wright
was restrained and would remain so until he maintained self-control. It is unclear from the
record whether Wright continued to be restrained throughout the remainder of proceedings. At
the close of trial, the jury found Wright guilty of one count of robbery, Idaho Code §§ 18-6501,
18-6503.    The district court entered a judgment of conviction and imposed a unified life
sentence, with fifteen years determinate.      Wright timely appeals.      He asserts each of the
following errors violated his constitutional right to a fair trial and warrants a new trial: (1) the


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use of restraints and the jury’s awareness of them; (2) prosecutorial misconduct in disclosing
Wright’s refusal to consent to a search; and (3) the use of irrelevant prior act evidence. If no
error alone warrants retrial, Wright contends that the cumulative error doctrine should apply.
                                                II.
                                          DISCUSSION
A.     Use of Restraints
       As a preliminary matter, the State asserts that Wright failed to object to the restraints on
any ground and, without an objection in the trial court, fails to show fundamental error under the
Perry 1 analysis. In a situation involving the use of restraints on a defendant, a defendant’s
objection should be made before jurors arrive or after they have been excused from the court.
State v. Crawford, 99 Idaho 87, 94, 577 P.2d 1135, 1142 (1978). Idaho cases hold that an
objection is preserved for appellate review, without resort to fundamental error analysis, if either
the specific ground for the objection is clearly stated or the basis of the objection is apparent
from the context. E.g. State v. Sheahan, 139 Idaho 267, 277, 77 P.3d 956, 966 (2003). To raise
an issue on appeal also requires an adverse ruling from the trial court that forms the basis for
assignment of error. State v. Huntsman, 146 Idaho 580, 585, 199 P.3d 155, 160 (Ct. App. 2008).
       We conclude the issue of the use of restraints in this case was preserved for appellate
review. After Wright had been restrained, the district court held a brief hearing. During the
hearing, the district court noted on the record that Wright had been placed in restraints, but the
hearing primarily related to Wright’s understanding of both the right to counsel and the
disadvantages of proceeding pro se. After allowing Wright to discharge his attorney, the district
court asked whether the State or Wright needed to address anything else before returning the
jury. Wright asked to recall the State’s first witness for cross-examination, and the district court
granted the request. The district court then asked the bailiff to return the jury, but Wright
interjected asking, “May I have these off, sir?” Wright argues, and the State does not deny, that
the request referred to the restraints. From the context, it is apparent Wright was challenging, or
objecting to, the use of restraints with the jury present. Furthermore, the request to remove the
restraints required the district court to rule on the issue. Having already ordered the use of
restraints, the district court gave a definitive answer on the request to reconsider its order: “No.
You show me after awhile here you’re doing okay and I’ll take them off . . . .” The district court

1
       See State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010).

                                                 3
made its position clear and no further objection by Wright was required in order to preserve the
issue for appeal.
        On appeal, a trial court’s decision to place a defendant in restraints during a jury trial is
reviewed for an abuse of discretion. State v. Miller, 131 Idaho 288, 292-93, 955 P.2d 603,
607-08 (Ct. App. 1997); see also Deck v. Missouri, 544 U.S. 622, 629 (2005). In looking at the
trial court’s decision to restrain a defendant, this Court must determine: (1) whether the lower
court correctly perceived the issue as one of discretion; (2) whether the lower court acted within
the boundaries of such discretion and consistently with any legal standards applicable to the
specific choices before it; and (3) whether the court reached its decision by an exercise of reason.
Miller, 131 Idaho at 292, 955 P.2d at 607.              Wright contends the district court abused its
discretion when it ordered that he be placed in restraints in three ways. First, there was no
description of the incident that took place outside of the courtroom and no finding by the district
court that the restraints were necessary for safety concerns or the preservation of judicial
decorum.     Wright asserts the use of restraints could permissibly be ordered only after an
evidentiary hearing. Next, Wright argues that even if the use of restraints was justified, the
district court erred by informing the jury that Wright was in restraints. Finally, Wright urges that
the district court erred by not using the least restrictive and the least visible restraints available.
        1.      Failure to provide an evidentiary hearing or make a record
        “[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to
the jury absent a trial court determination, in the exercise of its discretion, that they are justified
by a state interest specific to a particular trial.” Deck, 544 U.S. at 629; see also Estelle v.
Williams, 425 U.S. 501, 505 (1976) (recognizing shackles should only be used when necessary to
control a defendant); Illinois v. Allen, 397 U.S. 337, 343-44 (1970) (holding a defendant may be
restrained to maintain the decorum in a courtroom). A criminal defendant may be restrained
during trial only in the “presence of a special need.” Deck, 544 U.S. at 626. Interpreting this,
the Idaho Supreme Court held the Due Process Clauses of both the United States and Idaho
Constitutions prohibit visibly restraining a criminal defendant at trial unless “overriding concerns
for safety or judicial decorum predominate.” Crawford, 99 Idaho at 96, 577 P.2d at 1144.
Therefore, any use of restraints must be based upon a finding that they are necessary. Id. at 98,
577 P.2d at 1146; State v. Hyde, 127 Idaho 140, 147, 898 P.2d 71, 78 (Ct. App. 1995). Using
restraints on a defendant during trial is reversible error if the trial judge fails to make a finding


                                                    4
that the restraints are necessary for physical security, to prevent escape, or to maintain courtroom
decorum, unless the State can show the error was harmless. Deck, 544 U.S. at 635 (citing
Chapman v. California, 386 U.S. 18, 24 (1967)); State v. Moen, 94 Idaho 477, 479, 491 P.2d
858, 860 (1971); Miller, 131 Idaho at 293, 955 P.2d at 608.
        A finding that restraints are necessary may be based on both formally offered evidence
admitted at trial and knowledge gained from law enforcement officers or official records. State
v. Knutson, 121 Idaho 101, 105, 822 P.2d 998, 1002 (Ct. App. 1991). “Although the sheriff has
some initial responsibility for determining whether an accused should be handcuffed during a
jury trial, the trial judge must, in fulfilling his duty to preside over the trial, decide the question
for himself.” Moen, 94 Idaho at 479, 491 P.2d at 860. The information relied upon to support
restraining a defendant should be shown on the record, outside the presence of the jury, and “the
defendant should be afforded reasonable opportunity to meet that information.” Id. at 480, 491
P.2d at 861. Providing such a record allows an appellate court to determine whether the trial
court properly exercised its discretion. Id. When determining whether physically restraining a
defendant is necessary, it is preferred that a hearing is conducted, with sworn testimony and the
defendant present, except in cases where the trial process is disrupted in the court’s presence. Id.
at 479-80, 491 at 860-61; see also Crawford, 99 Idaho at 98, 577 P.2d at 1146 (holding the use
of restraints after an ex parte hearing with the State violated the defendant’s due process rights to
a fair trial). However, where a trial court fails to hold a hearing, or does not specifically state the
reasons for placing a defendant in restraints, we will not find an abuse of discretion so long as
the record sufficiently justifies the order to restrain the defendant in a manner that would not be
prejudicial. Moen, 94 Idaho at 480, 491 P.2d at 861; Knutson, 121 Idaho at 106, 822 P.2d at
1003.
        Wright was not restrained until the second day of trial. After the testimony from the
State’s first witness and cross-examination by defense counsel, Wright interrupted the court by
saying, “I’d like to make a statement.” The court did not allow the statement and finished
addressing the jury before calling for a brief recess and suggesting that defense counsel may
wish to speak with Wright. Once the court reconvened, and outside the presence of the jury, the
district court stated:
                During our recess I am informed by the Marshal that Mr. Wright has
        become combative and threatening to the Marshal and I have authorized, as a
        result of that, that he be restrained and continue to be restrained until further

                                                  5
       order. I am also informed [by defense counsel], who has conferred with Mr.
       Wright, that he has expressed a desire to discharge [defense counsel] and to
       proceed to represent himself in this proceeding . . . .
The district court then engaged in a line of questioning regarding Wright’s constitutional right to
court-appointed counsel and his wish to discharge his attorney. Thereafter, defense counsel was
discharged. Then, upon request by Wright, the district court stated it would allow Wright to
again cross-examine the State’s first witness and asked for the jury to be reseated. Wright raised
the issue of his restraints at that time, before the jury was returned, and the district court refused
to reconsider the order that Wright be restrained:
       [Court]: . . . . All right. Let’s bring the jury back in.
       [Wright]: May I have these off, sir?
       [Court]: No. You show me after awhile here you’re doing okay and I’ll take
                 them off, but if we have incidents like we had downstairs, you’re
                 going to be locked down. I’m not going to have you threatening the
                 Marshals. They’re there to do their job and make sure that this
                 courtroom is secure.
       Wright argues he was not afforded an opportunity to contest the use of visible restraints 2
and that the record contains no specific evidence justifying the district court’s decision. Wright
asserts the vague statement, regarding an incident between Wright and the court’s marshal and
Wright’s “combative and threatening” behavior, does not support a finding of necessity for the
restraints and the court should have conducted an evidentiary hearing. The State responds that
Wright had an opportunity to dispute the marshal’s report and failed to do so, and further, the
concise statement by the judge regarding Wright’s combative and threatening behavior provides
enough of a record to justify the use of restraints before the jury.
       In reviewing the record, we conclude the district court did not follow the preferred
procedure of holding a hearing, providing Wright a reasonable opportunity to meet the evidence
being used to support the use of restraints, and putting information on the record to support its
finding as to why the use of restraints was necessary. First, the district court had already ordered
the use of restraints before the brief hearing and the hearing primarily related to the discharge of
counsel. The court did not allow Wright to refute the marshal’s report, as the bailiff had already
been instructed to retrieve the jurors when Wright made the request for the restraints to be


2
        We infer the restraints were visible because Wright asked to “have these off,” without
having to specifically reference the restraints, indicating they could be seen, and further because
the district court later felt it needed to explain to the jury why Wright was restrained.

                                                  6
removed--a request the district court unequivocally denied. Furthermore, just prior to Wright’s
request to have the restraints removed, the district court admonished Wright to refrain from
causing further disruptions as it questioned Wright about discharging counsel:
       [Court]:  Do you understand that if you do represent yourself you will not be
                 given any special consideration? You will be responsible to the court
                 under the same procedural and substantive rules and laws that you
                 would be if you had counsel?
       [Wright]: Yes.
       ....
       [Court]: Do you understand that if you become disruptive in the process of
                 representing yourself, I will remove you from the courtroom?
       [Wright]: Yes.
       [Court]: If I am required to apply any restrictive orders because of your
                 conduct, and this is really serious in light of what I’ve seen, do you
                 understand that that really puts you at a disadvantage, that a lawyer in
                 that circumstance can really protect you where you can’t protect
                 yourself because I may have to gag you? If you get mouthy, if you get
                 disruptive, I’ll put you in a chair and gag you. So a lawyer is really
                 helpful if you’re going to go that direction. If you want to mind your
                 business and be a gentleman in court --
       [Wright]: Yes, sir.
       [Court]: -- I’m okay.
       [Wright]: Be okay.
Then, the district court continued to ask more questions relating to Wright’s discharge of
counsel. Wright was warned not to be argumentative before he had any opportunity to counter
or explain any evidence of previous disruptions or contest the use of restraints.
       Next, the information put on the record, relating to the decision to restrain Wright,
consisted only of the district court’s statements that it had been informed Wright was “combative
and threatening” to the marshal and a reference to an incident “downstairs.” The district court
took no statement on the record from the marshal or any other witness as to the nature of the
incident--whether it was only a threatening statement by Wright or escalated from a verbal
confrontation to a physical altercation. The district court was entitled to rely on information
relayed by the law enforcement officer, but the court provided only an unclear account of the
event that took place and put no factual basis in the record as to why it found, in an exercise of
the court’s own discretion, that restraints were necessary. Finally, after the request by Wright to
remove the restraints, the district court failed to state why, if restraints were necessary, it was
also necessary to use restraints visible to the jury rather than restraints that would remain unseen
and avoid any prejudice.

                                                 7
       Without any specific findings put on the record at the time restraints were ordered, we
look to see whether the record as a whole sufficiently justifies the use of restraints in a manner
that would not be prejudicial. We conclude it does not. The only evidence on appeal supporting
the use of restraints is the information previously discussed: Wright wished to make a statement
after the presentation of the State’s first witness, which the court denied; the court recessed;
Wright was then ordered restrained because of an incident “downstairs” where he was
“combative and threatening” to the marshal; the court admonished Wright about disruptive
behavior; and the court denied Wright’s request to remove the restraints before reseating the
jury. Nothing in the record prior to this “incident” indicates concerns regarding possible escape
or a threat to the physical security of persons or the decorum in the court. The only other
evidence relating to the restraints indicates that after the jury returned, Wright apologized for his
conduct: “I’d like to apologize to the jury for my behavior, but I feel the lawyer wasn’t
representing me --.” The behavior, however, remained undescribed. As such, the record does
not adequately justify the district court’s decision because we cannot say whether the decision
was the result of a sound exercise of discretion and application of the correct legal principles.
See Deck, 544 U.S. at 634-35 (finding the justification for restraints was inadequate where there
were no formal or informal findings on the record, the judge did not refer to a risk of escape or
threat to courtroom security, nor did the judge explain why he chose not to provide for shackles
that the jury could not see); cf. Moen, 94 Idaho at 480-81, 491 P.2d at 861-62 (finding the record
sufficiently supported the use of restraints because the defendant was on trial for a charge of
escape, charges for other crimes committed during escape showed motive for another attempt to
escape, and there were multiple defendants in the case).
       We do not lightly second guess the decision of a trial court to restrain a defendant. Moen,
94 Idaho at 481, 491 P.2d at 862. However, a decision whether to restrain a defendant requires
close judicial scrutiny in weighing the State’s interest against the prejudice to the defendant. See
Estelle, 425 U.S. at 503-04. This imposes an initial burden on the court to determine both the
facts supporting the use of restraints and whether the situation could be resolved in another
manner, as the use of restraints should be exercised only as a last resort. Allen, 397 U.S. at 344;
see also Gonzalez v. Pliler, 341 F.3d 897, 900, 902 (9th Cir. 2003) (stating “the court must
pursue less restrictive alternatives before imposing physical restraints” and that “it is the duty of
the trial court, not correctional officers, to make the affirmative determination.”). It is only in


                                                 8
extreme and exceptional cases, where the safe custody of the prisoner and the peace of the
tribunal imperatively demand, that restraints should be used.         Deck, 544 U.S. at 626-27.
Although we recognize in certain circumstances, such as an on-the-record disruption by the
defendant, the record itself demonstrates the need for restraints and no further evidence may be
necessary, such is not the case here. From this record, we cannot determine if the district court
considered whether Wright’s disruptive behavior resulted from Wright’s impressions of
counsel’s poor representation and might have been adequately resolved with the discharge of
defense counsel or whether less restrictive means were available. 3 As such, the record here does
not show a necessity to restrain Wright and does not adequately justify the district court’s
decision.
       2.      Informing the jury about the restraints
       The due process right to a fair trial requires a finding of necessity, based on an overriding
State interest, to restrain a criminal defendant because the use of restraints infringes upon the
defendant’s presumption of innocence and may affect the outcome of a trial. Crawford, 99 Idaho
at 95, 577 P.2d at 1143. Use of restraints visible to a jury may be especially prejudicial in a trial
for a crime of violence. Larson v. Palmateer, 515 F.3d 1057, 1064 (9th Cir. 2008). It is
axiomatic, therefore, that before a defendant may assert a violation of due process by the use of
restraints, there must be evidence to show the jury was aware of the restraints and had an
opportunity to draw a conclusion regarding the defendant’s character. See Miller, 131 Idaho at
293, 955 P.2d at 608 (finding there was no claim of due process violations where the locking leg
restraint was worn under the defendant’s clothing and was not seen by the jury). Where the
restraints are seen by the jury and a court has ordered the use of restraints without adequate
justification, “the defendant need not demonstrate actual prejudice to make out a due process
violation.” Deck, 544 U.S. at 635. In such a circumstance, the State must prove “beyond a
reasonable doubt that the [shackling] error complained of did not contribute to the verdict
obtained.” Id. (quoting Chapman, 386 U.S. at 24); see also State v. Perry, 150 Idaho 209, 227,
245 P.3d 961, 979 (2010) (adopting the Chapman test for harmless error).
       In this case, after being brought back to the courtroom, the jury’s attention was
specifically drawn to the restraints by the district court: “For the record, so there’s no question
as far as what’s going on, there’s been a little fuss over the break and I’ve required that Mr.

3
       We have no record or description of the restraints actually used in this case.

                                                 9
Wright be restrained. If he behaves himself here in awhile, we’ll loosen that up.” Thus, there is
no doubt the jury was aware of the restraints and had the opportunity to form an opinion about
Wright or his character.      Also problematic is that Wright was on trial for a crime of
violence--armed robbery.
       The State, then, has the burden to show beyond a reasonable doubt that there was no
reasonable possibility that the error complained of contributed to the conviction. Here, the State
has not argued that the error by the district court in visibly restraining Wright in front of the jury
was harmless. As the United States Supreme Court stated in Deck, the effects of an inherently
prejudicial practice, such as compelling a defendant to wear prison clothes or forcing him to be
restrained during trial, cannot be shown from a trial transcript. Deck, 544 U.S. at 635. Visible
restraints may affect the presumption of innocence, the ability of a defendant to assist in his
defense, and the dignity of the courtroom. Id. at 630-31. Especially where a defendant has
chosen to represent himself, we are unable to say how a court’s admonitions and the restraints
placed on a defendant during trial impacted his ability to challenge the State’s case or present his
own defense without a weighing by the district court and specific findings on the record.
       Moreover, this case is distinguishable from previous cases where we have found a
shackling error to be harmless. In Knutson, this court concluded the evidence overwhelmingly
supported a guilty verdict and briefly seeing the defendant in a leg restraint did not cause
prejudice. Knutson, 121 Idaho at 107, 822 P.2d at 1004. There, however, the trial judge offered
to give the jury a curative instruction, the defendant was on trial for a charge of escape--which
we concluded justified the use of restraints--and the restraint was later replaced with a knee brace
and concealed underneath the defendant’s clothing. Id. In Moen, in reviewing whether the
restraints caused prejudice, we determined defense counsel invited error when he raised the issue
of handcuffs in the presence of the jury, where again the defendant was on trial for a charge of
escape and the evidence overwhelmingly supported the guilty verdict. Moen, 94 Idaho at 481,
491 P.2d at 862. Here, we cannot say beyond a reasonable doubt that the use of visible
restraints, unsupported by the record, did not contribute to the verdict in the trial for a violent
crime of a pro se defendant. Therefore, we are compelled to vacate the judgment of conviction
in this case. See Deck, 544 U.S. at 635 (reversing the judgment).




                                                 10
B.     Prosecutorial Misconduct
       For guidance on remand, we address Wright’s additional claims of trial error. First,
Wright asserts the prosecutor committed misconduct when he referred to Wright’s refusal to
consent to a search of Wright’s person, specifically the refusal to allow investigators to
photograph the soles of his shoes. The prosecutor brought forward that fact during opening
statements, through testimony from two witnesses, and again during closing argument. Wright
asserts that even without objection to the trial court, these instances of misconduct rise to the
level of fundamental error. The State responds that the “search” was not a search at all, but
rather Wright’s obstruction of justice in response to a lawful request by an officer. Thus, the
State argues, Wright fails to show constitutional error.
       When there is no contemporaneous objection, a conviction will be reversed for
prosecutorial misconduct only if the conduct is sufficiently egregious so as to result in
fundamental error. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007); State v.
Betancourt, 151 Idaho 635, 640, 262 P.3d 278, 283 (Ct. App. 2011). As a threshold, we must
determine factually if there was prosecutorial misconduct. See Field, 144 Idaho at 571, 165 P.3d
at 285; Sheahan, 139 Idaho at 280, 77 P.3d at 969. Then, to find that prosecutorial misconduct
constitutes fundamental error, the defendant bears the burden of establishing that the error:
(1) violates one or more of the defendant’s unwaived constitutional rights; (2) plainly exists
without the need for additional information not contained in the appellate record; and (3) was not
harmless. Perry, 150 Idaho at 228, 245 P.3d at 980; Betancourt, 151 Idaho at 640, 262 P.3d at
283.
       We conclude the statements by the prosecutor and his witnesses do not constitute
fundamental error because Wright cannot establish the first prong, that the issue involves an
unwaived constitutional right.     A reference, by a prosecutor or witness, to a defendant’s
invocation of a constitutional right deprives an accused of his or her right to due process and a
fair trial, and establishes the first prong of the Perry test. Betancourt, 151 Idaho at 640, 262 P.3d
at 283. As a threshold matter, it must be established that the reference does, in fact, involve the
invocation of a constitutional right.
       Here, Wright argues he was asserting his Fourth Amendment right to be free from
unreasonable searches and seizures. Wright is correct that eliciting testimony from a witness
regarding a defendant’s refusal to consent to a search, when used for the purpose of inferring


                                                 11
guilt, is prosecutorial misconduct and may be fundamental error. State v. Christiansen, 144
Idaho 463, 470-71, 163 P.3d 1175, 1182-83 (2007); Betancourt, 151 Idaho at 640, 262 P.3d at
283. However, in order to invoke fundamental error on the basis of impermissible references to
a defendant’s refusal to consent to a search, it must be established that the action by law
enforcement involved a search that implicates the Fourth Amendment. See Betancourt, 151
Idaho at 639-40, 262 P.3d at 282-83 (applying fundamental error to a claim involving the
defendant’s right to refuse to consent to the search of his vehicle). Observation of items readily
visible to the public is not a “search” within the purview of that right; what a person knowingly
exposes to the public is not subject to Fourth Amendment protection. Katz v. United States, 389
U.S. 347, 351 (1967). In order to implicate Fourth Amendment rights, a person must have a
reasonable expectation of privacy in the place or thing subject to the search. See id.; State v.
Curry, 103 Idaho 332, 338, 647 P.2d 788, 794 (Ct. App. 1982). In Curry, this Court concluded a
defendant did not have a reasonable expectation of privacy with respect to the physical
characteristics of the soles of his shoes. Id. at 338, 647 P.2d at 794. We reasoned that, just as
with a person’s voice or handwriting, a person has no reasonable expectation of privacy in the
imprint made by his shoes because it is repeatedly shown to the public. Id. Therefore, because it
is not a search, refusing to consent to having the soles of one’s shoes observed cannot be
construed as an invocation of a constitutional right, and Wright fails to establish the first prong
of the Perry fundamental error analysis. Rather, this evidence showing consciousness of guilt,
including the destruction or concealment of evidence, may be admissible at trial. See Sheahan,
139 Idaho at 279, 77 P.3d at 968; State v. Pokorney, 149 Idaho 459, 463-64, 235 P.3d 409,
413-14 (Ct. App. 2010).
       Wright nonetheless argues that our conclusion in Curry was either dicta or has since been
put into question by the United States Supreme Court’s holding in Arizona v. Hicks, 480 U.S.
321 (1987). In Hicks, the United States Supreme Court held that even a de minimus search
implicates the Fourth Amendment. Id. at 325. Yet, it is this very argument by Wright that shows
he also fails to establish the second prong of fundamental error, that the error is plain. To be a
plain or obvious error requires that the error is clear under current law. United States v. Olano,
507 U.S. 725, 734 (1993). In other words, the available authorities need to provide a clear
answer to the question, United States v. Thompson, 82 F.3d 849, 855 (9th Cir. 1996), and the
appellant must show the existing authorities have unequivocally resolved the issue in the


                                                12
appellant’s favor, State v. Hadden, 152 Idaho 371, 375, 271 P.3d 1227, 1231 (Ct. App. 2012).
The law does not unequivocally support Wright’s position. To the contrary, though the United
States Supreme Court has not definitively decided this particular issue, other authorities tend to
support this Court’s position in Curry, that a person does not have a reasonable expectation of
privacy in the physical characteristics of one’s shoes. See Commonwealth v. Billings, 676
N.E.2d 62, 65 (Mass. App. Ct. 1997) (concluding there was no search because the soles of a
person’s shoes are constantly exposed to the public); State v. Bates, 495 A.2d 422, 427 (N.J.
Super. Ct. App. Div. 1985) (finding no reasonable expectation of privacy in the soles of one’s
shoes); State v. Selvidge, 635 P.2d 736, 739-40 (Wash. Ct. App. 1981) (holding that because
defendant had no reasonable expectation in the soles of a person’s shoes, there was no search);
but see Sheler v. Commonwealth, 566 S.E.2d 203, 208 (Va. App. 2002) (finding police violated a
defendant’s Fourth Amendment rights by conducting a warrantless search of the bottom of a
person’s shoes).
        We conclude that Wright fails to show fundamental error in the prosecutor’s statements,
or the witnesses’ testimony, regarding Wright’s refusal to allow investigators to photograph the
soles of his shoes. Wright cannot show it involves an unwaived constitutional right or that the
error is plain in the record.
C.      Evidence of Other Prior Acts
        Finally, Wright argues the district court erred in allowing irrelevant evidence of his prior
acts to be introduced at trial. In particular, Wright objected to evidence that tended to place him
in the area of the robbery, acting suspiciously in a bank lobby, on the day prior to the
commission of the crime. Wright asserts the evidence was entirely irrelevant to whether he
committed the robbery at a different location on a different day. The State responds that the
evidence was relevant because it placed Wright in a bank near the site of the robbery, wearing
clothing associated with the robber of the loan store, and with his known associates prior to the
robbery, all tending to show plan or preparation.
        Irrelevant evidence is not admissible. Idaho Rule of Evidence 402. Similarly, evidence
of other crimes, wrongs, or acts is not admissible to prove a defendant’s criminal propensity.
I.R.E. 404(b); State v. Johnson, 148 Idaho 664, 667, 227 P.3d 918, 921 (2010); State v. Parmer,
147 Idaho 210, 214, 207 P.3d 186, 190 (Ct. App. 2009). However, such evidence may be
admissible for a purpose other than that prohibited by Idaho Rule of Evidence 404(b) if the


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evidence is relevant and the probative value is not substantially outweighed by any unfair
prejudice to the defendant. State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185, 1188 (2009). Here,
Wright only argues relevancy.       Evidence of other acts is not relevant unless the jury can
reasonably conclude the act occurred and the defendant was the actor. Id. Thus, there must be
sufficient evidence to establish the other acts as fact. Id. Relevancy in this context also requires
that the evidence of other acts is relevant to a material, disputed issue concerning the crime
charged, other than criminal propensity. Id. Whether evidence is relevant is an issue of law.
Johnson, 148 Idaho at 667, 227 P.3d at 921; Parmer, 147 Idaho at 214, 207 P.3d at 190.
Therefore, when considering admission of evidence of other acts, we exercise free review of the
trial court’s relevancy determination. Parmer, 147 Idaho at 214, 207 P.3d at 190.
       The State presented the manager of a bank located near the loan store as a witness at trial.
He testified that a suspicious man had entered the bank on the day prior to the loan store robbery.
At this point, Wright objected on grounds of relevancy. The district court acknowledged that it
did not see how the evidence was relevant but allowed the line of questioning to continue. Upon
further questioning, the bank manager testified that the man was wearing a large, hooded
sweatshirt, entered the bank lobby, looked around and approached the teller station, but then left
without conducting any business in the bank. The sweatshirt the man wore, as described by the
bank manager, matched a sweatshirt that had been found in the car Wright was riding in and was
believed to have been worn by Wright during the robbery. 4 The bank manager further related a
second incident of suspicious behavior that took place within hours of the first suspicious
activity, where the same man entered the lobby, again left without conducting bank business, and
then met with a second man. Wright continued to object, on relevance grounds, to both the bank
manager’s testimony and the admission of photographs taken from the security cameras at the
bank, which showed the man who entered the bank wearing a sweatshirt consistent with that
described by the bank manager and with the one previously admitted into evidence. However,
the district court overruled each objection, citing to the fact that the clothing was similar.
       Relevant evidence is 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; State v. Harvey, 142 Idaho 527, 532, 129 P.3d 1276, 1281
(Ct. App. 2006). Rule 404(b) allows the admission of evidence that is relevant or tends to show

4
       Prior to the bank manager’s testimony, the sweatshirt had been admitted into evidence.

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motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident. Where identity is a central issue in a trial on a charge of robbery, testimony regarding a
prior incident, including description of clothing and disguises used, may be highly probative.
See State v. Alger, 115 Idaho 42, 47, 764 P.2d 119, 124 (Ct. App. 1988). Testimony tending to
place a defendant at the scene of the crime may also provide relevant circumstantial evidence.
See State v. Smith, 117 Idaho 891, 897, 792 P.2d 916, 922 (1990).
       Here, the bank manager’s testimony regarding a man acting suspiciously in the area of
the robbery, and who was wearing clothing similar to that found in the vehicle Wright was riding
in, is relevant circumstantial evidence tending to place the people apprehended in the vehicle
near the scene of the robbery. Along with other testimony linking the clothing to Wright, the
testimony by the bank manager also tended to establish Wright’s identity as one of the
perpetrators and show his preparation for committing the crime. We hold the evidence was
relevant and the district court did not err in allowing the evidence to be admitted at trial.
Therefore, there is no error.
                                                III.
                                         CONCLUSION
       We conclude the district court erred by restraining Wright during trial without adequate
justification on the record to support a finding that the use of restraints was necessary and in
alerting the jury to the fact Wright was restrained. We further conclude the error was not
harmless. Accordingly, we vacate Wright’s judgment of conviction for robbery and remand for a
new trial.
       Judge LANSING and Judge MELANSON CONCUR.




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