              IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                               Docket Nos. 34746/34747/38249

STATE OF IDAHO,                                )     2013 Opinion No. 37
                                               )
       Plaintiff-Respondent,                   )     Filed: June 14, 2013
                                               )
v.                                             )     Stephen W. Kenyon, Clerk
                                               )
JAMES LEROY SKUNKCAP,                          )
                                               )
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Sixth Judicial District, State of Idaho,
       Bannock County. Hon. Peter D. McDermott, District Judge.

       Judgment of conviction and enhanced unified sentence of twelve years with five
       years determinate for eluding a police officer, affirmed; judgment of conviction
       and consecutive enhanced unified sentence of eighteen years with eight years
       determinate for grand theft, affirmed; judgment of conviction and sentence for
       three months for misdemeanor assault, affirmed; judgment of conviction for
       misdemeanor malicious injury to property, vacated.

       Sara B. Thomas, State Appellate Public Defender; Sarah E. Tompkins, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       James Leroy Skunkcap appeals from the district court’s judgments of conviction and
sentences.
                                              I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Officers observed a man, later identified as Skunkcap, and a woman leave a home (that
was under surveillance) in a vehicle reported as stolen. The officers attempted to stop the
vehicle. Skunkcap attempted to flee and only stopped after colliding with two police vehicles.
In a separate matter, Skunkcap was charged with stealing two saddles out of a horse trailer
belonging to a western store. These events resulted in three criminal trials. The first trial,


                                              1
Docket No. 34746, resulted from Skunkcap’s collision with the police vehicles.                  A jury
convicted Skunkcap of felony eluding a police officer, Idaho Code § 49-1404(1), (2)(b);
malicious injury to property, I.C. § 18-7001; and misdemeanor simple assault, I.C. § 18-902.
Following the trial, Skunkcap entered a guilty plea to being a persistent violator. The second
trial, Docket No. 34747, involved the theft of two horse saddles and resulted in a jury convicting
Skunkcap of grand theft, I.C. §§ 18-2403(1), 18-2407(1). Skunkcap again entered a guilty plea
for being a persistent violator.
       The district court imposed a unified term of eighteen years with eight years determinate
for the felony eluding a police officer conviction, including the persistent violator enhancement.
The court imposed a term of six months for misdemeanor malicious injury to property and three
months for misdemeanor assault. Skunkcap also received a unified sentence of eighteen years
with eight years determinate for his conviction of grand theft with the persistent violator
enhancement, to run consecutive to his eluding sentence. Subsequently, Skunkcap sought to
withdraw his first guilty plea to being a persistent violator in Docket No. 34746. The district
court allowed the guilty plea to be withdrawn and Skunkcap went to trial a third time, Docket
No. 38249, where a jury found him to be a persistent violator. The district court then entered a
seven-year indeterminate term enhancement to his five-year determinate sentence for the eluding
a police officer conviction. Skunkcap filed an Idaho Criminal Rule 35 motion and the district
court granted the motion in part. Skunkcap timely appeals.
                                                   II.
                                             ANALYSIS
       On appeal, Skunkcap raises several issues relative to the separate cases. As to the matter
involving collision with the police vehicles, Docket No. 34746, Skunkcap claims that: (1) the
district court failed to properly respond to a question from the jury; (2) the jury instructions
regarding eluding a police officer and assault were improper; and (3) the prosecutor committed
misconduct. As to the matter involving the saddles, Docket No. 34747, Skunkcap contends that:
(1) the district court failed to adequately inquire as to a conflict of interest; and (2) the prosecutor
committed misconduct. As to the matter involving enhancement, Docket No. 38249, Skunkcap
asserts that: (1) the district court imposed an illegal sentence; and (2) the district court failed to
adequately inquire as to a conflict of interest.




                                                   2
A.      Docket No. 34746
        1.      Response to a question from the jury
        Skunkcap claims the district court erred by failing to properly instruct the jury in
response to the jury’s question regarding application of the definition of “malicious.” The
decision whether or not to give further instructions in response to questions from a jury is at the
district court’s discretion. I.C.R. 30(c). Therefore, this Court reviews such a decision under an
abuse of discretion standard. State v. Sheahan, 139 Idaho 267, 282, 77 P.3d 956, 971 (2003).
The Court exercises free review over a district court’s determination as to whether jury
instructions contain a defect, ambiguity, or gap with respect to its statements on the law. Id. See
also State v. Pinkney, 115 Idaho 1152, 1154, 772 P.2d 1246, 1248 (Ct. App. 1989). In Pinkney,
this Court outlined a district court’s responsibility when responding to jurors’ questions:
        In general, it is within the trial court’s discretion to determine whether, and the
        manner in which, to respond to a question posed by the jury during deliberations.
        I.C.R. 30[(c)]. See also Dawson v. Olson, 97 Idaho 274, 543 P.2d 499 (1975).
        This grant of discretion is premised on the assumption that the instructions as
        given are clear, direct and proper statements of the law. Dawson v. Olson, supra.
        Consequently, if a jury expresses doubt or confusion on a point of law correctly
        and adequately covered in a given instruction, the trial court in its discretion may
        explain the given instruction or further instruct the jury but it is under no duty to
        do so. However, if a jury makes explicit its difficulties with a point of law
        pertinent to the case, thereby revealing a defect, ambiguity or gap in the
        instructions, then the trial court has the duty to give such additional instructions
        on the law as are reasonably necessary to alleviate the jury’s doubt or confusion.
        Dawson v. Olson, supra. See also I.C. §§ 19-2132(a) and 19-2204 (trial court
        must instruct the jurors on all matters of law necessary for their information).

Pinkney, 115 Idaho at 1154, 772 P.2d at 1248.
        In the instant case, the district court provided the jury with an instruction containing the
elements of malicious injury to property. The court also provided the jury with an instruction
that “[t]he word ‘maliciously’ means the desire to annoy or injure another or the intent to do a
wrongful act.” During deliberations, the jury sent the court the following questions, seeking to
clarify that instruction:
                 Instruction 17, definition of “maliciously,” if the act (the second hit of the
        [first police] vehicle) was done due to an effort to escape is that malicious or does
        it mean that the damage was the intent, not the escape?
                 When committing a wrongful act is any unintentional damage considered
        malicious?



                                                  3
       At trial, the State presented the testimony of Detective Collins. He testified that officers
had been watching a mobile home where they believed an individual, other than Skunkcap, may
be. A vehicle that was parked outside was reported as stolen. Later, Skunkcap and a woman left
in the vehicle with Skunkcap driving. Skunkcap pulled onto the road and was traveling at a low
rate of speed along the shoulder of the road in the wrong lane of travel. At this point, other
officers in the area were alerted and began to move. Detective Collins pulled his unmarked truck
onto the road to block the opposite lane of travel. A marked police truck approached and
activated its overhead lights. Skunkcap then executed a U-turn and began traveling at 20 to 25
miles per hour toward Collins’ vehicle. Skunkcap struck the front bumper of Collins’ vehicle.
Skunkcap put his vehicle in reverse, striking another officer’s vehicle within a few feet and then
again went forward, striking Collins’ vehicle a second time from within a few feet.
       After receiving the note from the jury, the district court conducted a hearing to discuss
the issue raised by the jury and the responses suggested.          In regard to the definition of
“maliciously,” the State argued that the court should refer to the definition given. Skunkcap first
asserted that the jury was concerned with applying the term “maliciously” to the circumstances
of the multiple collisions that occurred. Although the State asserted that the sequence of events
should not be considered separately, but as one continuous act, Skunkcap argued that the court
should instruct the jury that they could analyze application of the term “maliciously” separately
as to each collision. 1 In addition, Skunkcap argued, “With regard to the unintentional conduct or
damages, I would argue that it is not malicious if it’s unintended conduct and, therefore, that they
should be instructed that unless the damage was intended, it wouldn’t be malicious.”
       As to the definition of “maliciously,” the court referred the jury to the given instruction.
However, the court went on to explain that the jury could separately apply that term to the
individual collisions and that if they found none of the collisions were done maliciously they
should respond as not guilty but, on the other hand, if they found any but not all collisions to
have been done maliciously, to have the foreperson write on the verdict which of the collisions
satisfied that requirement.   The jury ultimately found Skunkcap guilty of only the second

1
       Skunkcap argued that the evidence showed that, if there was the requisite $1000 worth of
damage done to make the act a felony, it was only due to the first collision with Collins’ vehicle,
otherwise his acts could result in no more than a misdemeanor. Skunkcap had testified that he
had not even seen Collins’ vehicle upon making the U-turn and then striking that vehicle the first
time.

                                                 4
collision with Collins’ vehicle.    Upon motion by Skunkcap, the district court reduced the
conviction to a misdemeanor, finding that the State had failed to prove the requisite $1000
damage caused by the second collision.
       On appeal, Skunkcap argues that the district court’s response failed to provide the jury
with an “adequate and legally correct response to the jurors’ question regarding the mens rea for
malicious injury to property.” Skunkcap claims that the district court should have instructed the
jury that the malicious element required a demonstration of intent to injure property of another.
Without such an instruction, Skunkcap asserts the jury could have convicted him based on his
intent to do a wrongful act--fleeing from the police--rather than his intent to damage the police
vehicle.
       Skunkcap relies on State v. Nastoff, 124 Idaho 667, 862 P.2d 1089 (Ct. App. 1993). In
Nastoff, we were called upon to determine the state of mind or “mens rea” necessary to establish
criminal culpability for malicious injury to property under I.C. § 18-7001. Nastoff, 124 Idaho at
668, 862 P.2d at 1090. In doing so, we analyzed the definition of “malice” from I.C. § 18-101.
We stated, “Under that definition, malice may take either of two quite distinct forms--it may
constitute: (1) a purpose or desire to vex, annoy or injure another; or (2) an intent to do a
wrongful act, regardless of the presence or absence of any desire to inflict harm on another.”
Nastoff, 124 Idaho at 669, 862 P.2d at 1091. In regard to the “intent to do a wrongful act,” we
noted the contention of the State that the intent to do any wrongful act would constitute the
“malice” supporting a conviction for malicious injury to property and the intent to do some other
wrongful act that ultimately, even accidentally, resulted in injury to property was sufficient. Id.
However, we rejected that contention, holding that I.C. § 18-7001 creates culpability for
malicious injury to property only where the defendant’s conduct causing the injury is
accompanied by an intent to injure the property of another. Id. at 670, 862 P.2d at 1092.
       We recognize that the instruction given in this case mirrors the pattern jury instruction as
well as the language of I.C. § 18-101. “However, if a jury makes explicit its difficulties with a
point of law pertinent to the case, thereby revealing a defect, ambiguity or gap in the instructions,
then the trial court has the duty to give such additional instructions on the law as are reasonably
necessary to alleviate the jury’s doubt or confusion.” Pinkney, 115 Idaho at 1154, 772 P.2d at
1248. In this case, the questions of the jury clearly went to the issue of the mens rea involved:




                                                 5
                Instruction 17, definition of “maliciously,” if the act (the second hit of the
       [first police] vehicle) was done due to an effort to escape is that malicious or does
       it mean that the damage was the intent, not the escape?
                When committing a wrongful act is any unintentional damage considered
       malicious?

       In essence, the jury wanted to know the answers to the questions this Court addressed in
Nastoff. First, the jury wanted to know whether specific intent to cause injury to the property
was required. We answered that question in the affirmative in Nastoff. Second, the jury wanted
to know if a wrongful act which caused injury to property without specific intent to do so would
suffice. We answered that question in the negative in Nastoff. The jury here was concerned with
damage caused by an effort to escape and unintended damage from a wrongful act.
       Again, the court instructed that “[t]he word ‘maliciously’ means the desire to annoy or
injure another or the intent to do a wrongful act.” (Emphasis added.) In light of the holding in
Nastoff that intent to injure the property of another is required, we question whether the pattern
instruction, modeled after the general malice statute, is appropriate in malicious injury to
property cases. However, we hold that the question posed by the jury in this case identified an
ambiguity in the jury instructions regarding the necessity of specific intent to cause injury to
property and that the court should have further instructed the jury that intent to injure the
property of another was a required element of the crime.
       The jury clearly referenced the second collision with Collins’ vehicle, the only collision
on which the jury convicted Skunkcap, after being referred again to the instruction defining
“maliciously.” The question referenced that second collision together with an effort to escape.
The second question made general reference to unintended damage from “a” wrongful act.
Whatever Skunkcap’s intent was in the second collision, we note that the jury also convicted
Skunkcap of the act of eluding a police officer relative to the same event.               Under the
circumstances, the jury may well have convicted Skunkcap, without further instructions from the
court, based upon unintended damage caused in an effort to escape, as opposed to damage
caused by intent to injure the property of another. Therefore, Skunkcap is entitled to a new trial
on this charge.
       2.         Jury instructions
       Next, Skunkcap claims that the jury instructions were improper in two instances. First,
Skunkcap claims that the jury instruction regarding his felony eluding a police officer charge


                                                 6
created an unlawful presumption in the State’s favor and relieved the State of its burden of proof.
Second, Skunkcap claims that the jury instruction for assault was legally erroneous. Skunkcap
did not object to the jury instructions at trial; therefore, he asserts fundamental error to obtain
appellate review. Generally, issues not raised below may not be considered for the first time on
appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Idaho decisional law,
however, has long allowed appellate courts to consider a claim of error to which no objection
was made below if the issue presented rises to the level of fundamental error. See State v. Field,
144 Idaho 559, 571, 165 P.3d 273, 285 (2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d
260, 262 (1971). In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme
Court abandoned the definitions it had previously utilized to describe what may constitute
fundamental error. The Perry Court held that an appellate court should reverse an unobjected-to
error when the defendant persuades the court that the alleged error: (1) violates one or more of
the defendant’s unwaived constitutional rights; (2) the error is clear or obvious without the need
for reference to any additional information not contained in the appellate record; and (3) the error
affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978 (footnote omitted).
       When reviewing jury instructions, we ask whether the instructions as a whole, and not
individually, fairly and accurately reflect applicable law. State v. Bowman, 124 Idaho 936, 942,
866 P.2d 193, 199 (Ct. App. 1993).        We review jury instructions as a whole because an
ambiguity in one instruction may be made clear by other instructions, and an instruction that
appears incomplete when viewed in isolation may fairly and accurately reflect the law when read
together with the remaining instructions. See State v. Adamcik, 152 Idaho 445, 472, 272 P.3d
417, 444 (2012); State v. Enno, 119 Idaho 392, 405, 807 P.2d 610, 623 (1991); State v.
Ranstrom, 94 Idaho 348, 352, 487 P.2d 942, 946 (1971).
               a.      Eluding a police officer
       The jury instruction regarding eluding a police officer read:
              In order for the defendant to be guilty of Fleeing or Attempting to Elude a
       Peace Officer, the State must prove each of the following:
              1.      On or about the 14th day of November, 2006
              2.      In the county of Bannock, State of Idaho;
              3.      Defendant JAMES LEROY SKUNKCAP, the driver of;
              4.      a Motor Vehicle; to wit: a blue Toyota Camry bearing Idaho
                      license 1BF9120, in the Kraft Rd. and Main St. area;
              5.      Did willfully flee or attempt to elude a pursuing police vehicle;



                                                  7
               6.       when given a visual or audible signal to bring the vehicle to a stop;
                        and
                7.      while doing so, causes damage to the property of another or bodily
                        injury to another.
       ** It is sufficient proof that a reasonable person who knew or should have known
       that the visual or audible signal given by a peace officer was intended to bring
       pursued vehicle to a stop.
                If each of the above has been proven beyond a reasonable doubt, you must
       find the defendant guilty. If any of the above has not been proven beyond a
       reasonable doubt, you must find the defendant not guilty.

       Skunkcap claims that the italicized sentence relieved the State of its constitutional burden
of proving all of the elements of the offense, beyond a reasonable doubt, by creating an
evidentiary presumption in the State’s favor by permitting the jury to convict for the offense if
the jurors believed a reasonable person would have known that he or she was being given a
signal to stop. A jury instruction that omits an essential element or relieves the State of its
burden to establish the essential elements of the crime implicates a due process violation. State
v. Draper, 151 Idaho 576, 588, 261 P.3d 853, 865 (2011). In this case, however, Skunkcap has
failed to demonstrate a jury instruction error. First, Skunkcap asserts that the italicized clause
essentially negates the remainder of the elements instruction, relieving the State of its burden.
This simply is not so. The clause can only be read to explain paragraph 6 of the elements
instruction. As such, the clause is nearly identical to the language in the statute, I.C. § 49-
1404(1). Moreover, the clause is nearly identical to the pattern jury instruction. Idaho Criminal
Jury Instruction 1032. The elements instruction clearly required the jury to find, beyond a
reasonable doubt, that Skunkcap did “willfully flee or attempt to elude.” The jury was instructed
that “In every crime or public offense there must exist a union or joint operation of act and
intent.” Nothing in the clause addressed, much less diminished, the State’s burden of proving
that the eluding or fleeing was willful.
       Skunkcap complains that it was the “manner” in which the clause was added--at the end,
in italics and with a double asterisk--that somehow turned the statutorily-based clause into a
presumption relieving the State of its burden. While it is not clear why the clause is so placed,
italicized or preceded by a double asterisk, those facts do not make the clause into anything more
than it is, nor statutorily or constitutionally deficient. The clause conveyed that which the State
was required to prove, that the signal must be such that a reasonable person would have known
that he or she was being signaled to stop. The clause was not, as Skunkcap contends, such that it

                                                 8
“implied that it was sufficient proof for the offense standing alone that a reasonable person
would have known that he or she was being signaled to stop.” (Emphasis added.) Skunkcap has
failed to demonstrate an error in the instruction that would implicate a due process violation, and
thus, no fundamental error exists.
               b.     Assault
       Skunkcap claims that the assault instruction is legally erroneous for two reasons: (1) the
last clause of element number three and element numbers four and five should have been
presented together as a single element in order for the jury to understand that all of those
elements needed to be found together to convict under that theory; and (2) element numbers six
and seven should have been separated by the conjunction “and” instead of “or” because the
statute requires a finding of both elements to convict under that theory. 2 The State alleges that
because defense counsel submitted this particular instruction, the doctrine of invited error
applies. The doctrine of invited error applies to estop a party from asserting an error when his or
her own conduct induces the commission of the error. Thomson v. Olsen, 147 Idaho 99, 106, 205
P.3d 1235, 1242 (2009). One may not complain of errors one has consented to or acquiesced in.
Id. In short, invited errors are not reversible. Id. Skunkcap agrees that he submitted the
instruction he now challenges. Although Skunkcap relies repeatedly in his briefing on Draper,



2
       The jury instruction for assault stated:

              In order for the defendant to be guilty of Assault, the state must prove
       each of the following:
              1.       On or about the 14th day of November, 2006,
              2.       In the state of Idaho
              3.       the defendant, James L. Skunkcap, unlawfully attempted
              4.       with apparent ability
              5.       to commit violent injury to, Bill Collins,
                       or
              6.       intentionally and unlawfully threatened by word or act to do
                       violence to Bill Collins,
                       or
              7.       did some act which created a well-founded fear in the other person
                       that such violence was imminent.
              If any of the above has not been proven beyond a reasonable doubt, then
       you must find the defendant not guilty. If each of the above has been proven
       beyond a reasonable doubt, you must find the defendant guilty.


                                                  9
he fails to acknowledge that the Court therein stated: “‘Appellant cannot assert as error on
appeal the giving of an instruction which he himself requested.’ [State v. Aragon, 107 Idaho
358, 363, 690 P.2d 293, 298 (1984)] (citing Henry v. Mississippi, 379 U.S. 443 (1965);
[Dallenbach] v. State, 562 P.2d 679 (Wyo. 1977)).” Draper, 151 Idaho 576, 589, 261 P.3d 853,
866 (2011). Skunkcap cannot assert the claimed error on appeal.
       3.      Prosecutorial misconduct
       Skunkcap claims that the State committed prosecutorial misconduct. Skunkcap asserts
that an officer, testifying for the State, “injected inflammatory testimony that negatively
characterized [him],” resulting in “an improper appeal to the passions and prejudices of the jury.”
Skunkcap did not object to the testimony at trial and, therefore, asserts fundamental error to
obtain appellate review.
       The police officer, testifying for the State, gave the following testimony:
       [STATE]:   And how far behind him were you when he crashed into [the
                  detective] for the first time?
       [WITNESS]: The initial time he crashed, I was probably still three or four
                  vehicle lengths behind the suspect vehicle.
                  Once I seen him crash into the vehicle, I go, I’m going to have to
                  make some aggressive action here because this guy doesn’t have
                  any regard for my safety, [the detective], or anybody out on the
                  street that day.

Skunkcap claims that the officer’s statement that Skunkcap “doesn’t have any regard for my
safety, [the detective], or anybody out on the street that day,” constitutes prosecutorial
misconduct. Skunkcap alleges that this testimony characterized him “as an individual who did
not care about the safety of the officers or anyone else.” He claims that the officer’s testimony
violated his due process right to a fair trial because the officer’s “appeal to the jurors’ emotions
[was] an improper attempt to induce the jury to convict [him] based upon factors aside from the
law or the evidence at trial.”
       We conclude that this testimony does not rise to the level of fundamental error. First, the
officer’s testimony, while non-responsive and irrelevant, did not represent an appeal to the
passions and prejudices of the jury and, thus, did not implicate a constitutional due process
violation. Second, Skunkcap has failed to argue or demonstrate that the decision not to object at
trial was not a tactical decision. Third, Skunkcap has failed to demonstrate that the brief




                                                10
comment by the officer in any way affected the outcome of the trial or was other than harmless.
The claim of prosecutorial misconduct fails to demonstrate fundamental error.
B.     Docket No. 34747
       1.      Conflict of interest
       Skunkcap claims that the district court erred by failing to make a sufficient inquiry into
the alleged conflict of interest between Skunkcap and his appointed counsel.             The Sixth
Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the
accused shall enjoy the right to . . . have the Assistance of Counsel for his defence.” 3 U.S.
CONST. amend. VI. The amendment has been interpreted to include the right to be represented
by conflict-free counsel. Wood v. Georgia, 450 U.S. 261, 271 (1981). In order to ensure that a
defendant receives conflict-free counsel, a trial court has an affirmative duty to inquire into a
potential conflict whenever it knows or “reasonably should know that a particular conflict may
exist.” State v. Lovelace, 140 Idaho 53, 60, 90 P.3d 278, 285 (2003); see also Cuyler v. Sullivan,
446 U.S. 335, 347 (1980).        A trial court’s failure to conduct an inquiry, under certain
circumstances, will serve as a basis for reversing a defendant’s conviction. Cuyler, 446 U.S. at
346-47; Holloway v. Arkansas, 435 U.S. 475, 488 (1978).
       Whether a trial court’s failure to adequately inquire into a potential conflict of interest is
enough, on its own, to justify reversal depends on whether the defendant objected to the conflict
at trial. See Cuyler, 446 U.S. at 348; State v. Severson, 147 Idaho 694, 703, 215 P.3d 414, 423
(2009). When a trial court fails to make a proper inquiry, but the defendant did not object to the
conflict at trial, the defendant’s conviction will be reversed only if he or she can prove that an
actual conflict of interest adversely affected his lawyer’s performance. Cuyler, 446 U.S. at 348;
Severson, 147 Idaho at 703, 215 P.3d at 423. The defendant need not, however, show prejudice
in order to obtain relief. Cuyler, 446 U.S. at 349-50; Severson, 147 Idaho at 703, 215 P.3d at
423. On the other hand, once a defendant raises a timely objection to a conflict, the trial court is
constitutionally obligated to determine whether an actual conflict of interest exists. Severson,
147 Idaho at 703, 215 P.3d at 423. A court’s failure to make a proper inquiry after a defendant’s



3
       The Amendment has been incorporated through the Due Process Clause of the Fourteenth
Amendment to apply to the states. See Powell v. Alabama, 287 U.S. 45, 73 (1932). Idaho law
also guarantees a criminal defendant’s right to counsel. See Idaho Const. art. I, § 13; I.C. § 19-
852.

                                                11
timely objection will result in the automatic reversal of the defendant’s conviction. See
Holloway, 435 U.S. at 488-89; Severson, 147 Idaho at 703, 215 P.3d at 423. Because the trial
court’s duty to inquire after a defendant makes a timely objection is a separate and distinct
obligation, a defendant in such circumstances need not show that an actual conflict adversely
affected the lawyer’s performance. See Holloway, 435 U.S. at 488-90; Severson, 147 Idaho at
703, 215 P.3d at 423. The adequacy of a trial court’s inquiry is a constitutional issue over which
we exercise free review. Severson, 147 Idaho at 704, 215 P.3d at 424.
       In these cases, Skunkcap had multiple defense attorneys appointed to represent him. In
Docket No. 34746, the public defender was appointed to represent Skunkcap. Skunkcap accused
the public defender of lying to him and, thereupon, the public defender moved to withdraw.
Skunkcap opposed the motion to withdraw, telling the district court “I’m satisfied with . . . what
he does, you know.” Nonetheless, the district court granted the motion noting that forcing the
attorney to continue under the circumstances would not be appropriate. Thereafter, the district
court appointed two attorneys, deputy public defenders, who represented Skunkcap through the
remainder of that case. These two deputy public defenders also represented Skunkcap in Docket
No. 34747 and Docket No. 38249.
       Following the verdict in Docket No. 34747, Skunkcap pled guilty to a charge of being a
persistent violator. At the conclusion of his plea to the persistent violator charge, the district
court asked Skunkcap if he had any complaints or problems with the way his attorneys
represented him. In response, Skunkcap complained about his first attorney, who had been
allowed to withdraw, contending he had failed to protect his rights, particularly noting his speedy
trial rights. 4 The district court reminded Skunkcap that he had opposed the public defender’s
motion to withdraw, noting that he was “satisfied” with that representation. As to the attorneys
who represented him during the trial, Skunkcap’s complaint was that there had only been two
hours of trial preparation with them. He did not assert any breakdown in the attorney-client
relationship with the trial attorneys. The district court again engaged Skunkcap who again
brought up his first attorney and added that his present attorneys could not complain about his
first attorney because he was their boss. Skunkcap reiterated that he only had two hours trial



4
       On appeal, Skunkcap asserts no violation of rights, including speedy trial rights,
occurring prior to withdrawal by the public defender.

                                                12
preparation time with the attorneys. However, the district court noted that it had appeared that
his attorneys had done an excellent job during trial. Skunkcap agreed, stating “Yes, they did.”
       Skunkcap did not raise a timely objection to any conflict he had with his first counsel.
Although he accused the public defender of lying to him, Skunkcap resisted the motion to
withdraw stating that he was satisfied with the representation. Skunkcap did not raise a timely
objection to any conflict he might have had with substitute counsel during the conduct of the
trial. He does not argue that the district court had some reason to know of a conflict and, thus, a
duty to inquire. The complaints registered by Skunkcap came after the verdict and, indeed, at the
point after the entry of a guilty plea to the persistent violator charge. Even then, Skunkcap did
not complain of any conflict with his present counsel which might affect that proceeding. He did
not request substitute counsel. Any duty of inquiry on the part of the district court, under the
circumstances, was satisfied.
       2.      Prosecutorial misconduct
       Skunkcap claims that the prosecutor intentionally elicited testimony from an officer that
resulted in a violation of his Fifth Amendment right to remain silent. While questioning a police
officer, the following testimony occurred:
       [STATE]:       Okay. And did you interview the defendant?
       [WITNESS]:     No, I did not.
       [STATE]:       Did you attempt to?
       [WITNESS]:     Yes.
       ....
       [STATE]:       And what did you say to him?
       [WITNESS]:     I just advised him that we would like to talk with him about the
                      incident that had taken place. That was about all I got out.
       ....
       [STATE]:   Okay. And how did you begin or attempt to begin the interview?
       [WITNESS]: Exactly as I explained. I told him that we would like to talk with
                  him about the incident that had occurred.
       [STATE]:   Okay. And what was his response?
       [WITNESS]: He pretty much started cussing at myself and Detective Thomas.
                  And at that time Sergeant Lind--
       [STATE]:   Do you recall any specifics as to what he said?
       [WITNESS]: I can’t quote him exactly. It was something along the lines of--
                  “I’m not fucking talking to you guys.”
       ....
       [STATE]:   Did the defendant invoke his rights?
       [WITNESS]: More or less. I didn’t get to Mirandize him.
       [STATE]:   You never got a chance to read the Miranda warning?


                                                13
       [WITNESS]: No, sir.
       [STATE]:   Okay. And at any point were you able to interview the defendant?
       [WITNESS]: No.

Subsequently, during the officer’s testimony, the district court interrupted the line of questioning
and instructed the jury: “Ladies and gentlemen, people have the right if they want to not talk
with the police, and so I don’t want you to hold it against Mr. Skunkcap that he wouldn’t give a
statement.”
       “The United States Supreme Court has never held that the Fifth Amendment protects
against the use of pre-arrest, pre-Miranda silence.” State v. Parton, 154 Idaho 558, __, 300 P.3d
1046, __ (2013). See also Jenkins v. Anderson, 447 U.S. 231 (1980) (noting that its decision did
not consider whether the Fifth Amendment protects pre-arrest silence). However, the Idaho
Supreme Court has stated, “We believe the better rule is that which holds that the defendants’
Fifth Amendment right not to have their silence used against them in a court proceeding is
applicable pre-arrest and pre-Miranda warnings.” Parton, 154 Idaho at __, 300 P.3d at __
(quoting State v. Moore, 131 Idaho 814, 820, 965 P.2d 174, 180 (1998)). When the defendant’s
silence is used solely for the purpose of implying guilt, the Fifth Amendment right against self-
incrimination applies. Parton, 154 Idaho at __, 300 P.3d at __.
       The State does not dispute that this testimony was constitutional error and plain on the
face of the record. Therefore, we only need to decide whether the error was harmless. In
analyzing this prong, the defendant has the burden of proving there is a reasonable probability
that the constitutional violation affected the outcome. Perry, 150 Idaho at 226, 245 P.3d at 978.
Skunkcap claims that there is a reasonable probability that the error affected the outcome of his
trial because: (1) the repetitive nature of the questioning increased the likelihood that the jury
would draw an improper inference; and (2) the evidentiary gaps in the State’s case demonstrate
that the verdict likely turned on the implied guilt associated with Skunkcap’s silence. As to the
first contention, Skunkcap asserts that the prosecutor asked the witness eight questions regarding
the invocation of his right to remain silent. Although the prosecutor asked multiple questions
regarding the officer’s attempt at interviewing Skunkcap, the prosecutor never argued that
Skunkcap’s silence was evidence of his guilt. Additionally, the prosecutor never argued in
closing statements that Skunkcap’s silence implied his guilt. Further, the district court orally
provided the jury with a curative instruction regarding Skunkcap’s right to remain silent. We



                                                14
presume that the jury followed the district court’s instructions. 5 See State v. Kilby, 130 Idaho
747, 751, 947 P.2d 420, 424 (Ct. App. 1997); State v. Hudson, 129 Idaho 478, 481, 927 P.2d
451, 454 (Ct. App. 1996).
       As to Skunkcap’s second contention, the record demonstrates that unobjectionable
evidence overwhelmingly established Skunkcap’s guilt. During trial, an eyewitness to the theft
testified that she saw a person carry a saddle from the horse trailer to the trunk of a blue sedan.
Although the eyewitness initially misidentified Skunkcap in a photographic lineup, the
eyewitness ultimately identified him as the perpetrator at subsequent court proceedings. The
eyewitness also wrote down the license plate number of the blue sedan and provided it to the
police. A surveillance video, admitted at trial, corroborated the eyewitness’s testimony and
showed a blue sedan backing into a parking space next to the horse trailer. A police officer
testified that upon investigation, he learned that the license plate on the blue sedan was stolen
from a different vehicle. Later, police found the blue sedan with the stolen license plate, arrested
the driver, and identified him as Skunkcap.        Further, a friend of Skunkcap’s testified that
following the theft he saw a saddle in the trunk of the blue sedan Skunkcap was driving. He also
testified that Skunkcap wanted to sell the saddle and that he and Skunkcap took the saddle to
Skunkcap’s sister’s house. Based on the unobjectionable evidence presented at trial and the
curative instruction provided to the jury, we determine that the outcome of the trial would not
have been affected absent the error. Thus, we conclude the error was harmless.
C.     Docket No. 38249
       1.      Conflict of interest
       Skunkcap alleges that the district court erred in failing to investigate his attorneys’
possible conflict of interest when they represented him in Docket No. 38249. Docket No. 38249
arose after Skunkcap withdrew his guilty plea to a persistent violator charge from Docket


5
        Skunkcap claims that the curative instruction was not adequate. First, Skunkcap argues
that the district court should have intervened earlier. Second, he argues the instruction was
inadequate as a matter of law because it was phrased as the court’s preference rather than as a
legal instruction. Initially, the questions were directed to the officer’s role in the investigation,
and although counsel and the court could have intervened earlier in the question, we do not
believe that the timing of the court’s instruction is of particular import. In addition, Skunkcap’s
characterization of the court’s instruction as a preference is not persuasive. The sua sponte
admonition from the court conveyed an instruction of Skunkcap’s right not to speak and that it
could not be held against him.

                                                 15
No. 34746. In Docket No. 34746, the district court advised Skunkcap of the wrong penalty for
pleading guilty to the persistent violator enhancement during arraignment.          At the time of
arraignment, Skunkcap had not yet been appointed representation. However, after the district
court appointed the public defender, the misstatement was never corrected on the record. At the
outset of proceedings for Docket No. 38249, Skunkcap’s attorneys filed a motion to withdraw,
stating, “it’s theoretically possible that the Defendant could allege that his attorney should have
corrected the misstatement of the law made by the Court.” As the attorneys worked in the same
office as the previous defense counsel, they asserted that a conflict may exist under that
circumstance.
       A hearing was held and argument was presented to the district court on the potential
conflict of interest. Essentially, it was asserted that, since the court--prior to the appointment of
counsel--had incorrectly advised Skunkcap of the penalty, and if it turned out that his initial
counsel the public defender had failed to identify the misstatement and correct it, then Skunkcap
may be able at a future point to contend that the public defender had been ineffective. As such,
counsel suggested that the entirety of the public defender’s office, including the deputy public
defenders then representing Skunkcap, may be under a conflict. The court denied the motion,
finding no disqualifying conflict.    At the next hearing, counsel again raised the issue and
indicated to the court that Skunkcap would like to address the issue. Skunkcap expressed his
concern with his first counsel, the public defender, and other matters upon which he had
questions in the case. He stated that his concerns were not “personal” with respect to present
counsel, only that his prior attorney is the boss of his present counsel. The district court again
denied the motion, noting the rules of professional responsibility required present counsel to
solely advocate for Skunkcap and finding that, despite the fact that prior counsel was the chief
public defender, nothing in the record suggested that counsel was not acting in Skunkcap’s
interest or answering in this case to the public defender.
       Skunkcap’s assertion that the district court’s inquiry was inadequate is belied by the
record. Contrary to the present claim, there was nothing in the motion, argument of counsel, or
statement by Skunkcap that suggested any breakdown in communication with his counsel or
other conflict with his counsel which the district court should have probed. The asserted conflict
was based on the fact that his counsel worked in the same office as prior counsel. The district
court made a proper inquiry into any potential conflict. The district court held a hearing on the


                                                 16
motion, listened to and considered the arguments presented, and based on the arguments and the
record, concluded that no conflict existed. 6 Therefore, the district court did not err by failing to
adequately inquire regarding a conflict of interest
       2.      Rule 35 motion
       Skunkcap filed a Rule 35 motion relative to his sentence in Docket No. 34746 which was
enhanced pursuant to the verdict in Docket No. 38249. Skunkcap claims that the district court
failed to resentence him for his felony eluding a police officer conviction. Pursuant to Rule 35,
the district court may correct an illegal sentence at any time. In an appeal from the denial of a
motion under Rule 35 to correct an illegal sentence, the question of whether the sentence
imposed is illegal is a question of law freely reviewable by the appellate court.           State v.
Josephson, 124 Idaho 286, 287, 858 P.2d 825, 826 (Ct. App. 1993); State v. Rodriguez, 119
Idaho 895, 897, 811 P.2d 505, 507 (Ct. App. 1991).
       In Docket No. 34746, Skunkcap was originally sentenced to a determinate term of five
years for his felony eluding a police officer conviction with a persistent violator enhancement
that increased the sentence to a unified term of eighteen years with eight years determinate.
Subsequently, Skunkcap withdrew his guilty plea on the persistent violator charge. Following a
jury trial in Docket No. 38249, Skunkcap was found to be a persistent violator. At a subsequent
sentencing hearing, the district court imposed a seven-year indeterminate sentence for the
persistent violator conviction, but said that it could not alter the five-year determinate sentence
for the underlying eluding conviction.
       Skunkcap filed another Rule 35 motion and alleged that the court incorrectly found that it
could not alter the underlying sentence for eluding. The district court granted the motion, in part,
finding that “the Court has the ability and will reconsider the original sentence on the charge of
Eluding in this matter.” The court then reinstated the original sentence of five years determinate
for eluding.
       Now on appeal, Skunkcap claims that the district court did not impose a new sentence for
the eluding conviction, but instead decided not to disturb the original sentence. Skunkcap alleges
that this was error because the original sentence was void; therefore, Skunkcap claims he no
longer has a sentence imposed for his eluding charge and he should thus be resentenced.

6
       Skunkcap does not challenge the district court’s determination that no conflict existed,
but only whether the district court satisfied the duty to inquire.

                                                 17
However, contrary to Skunkcap’s argument, the record demonstrates that the district court did
impose a new sentence. During a hearing on the Rule 35 motion, the court stated:
          [T]he Court has sat down and gone through the presentence investigation report
          again and has reviewed all of those--all of that information that you just provided
          to me with regard to that . . . but having considered all of that, I think, with regard
          to the sentence . . . the Court would again impose that same sentence.

          Thereafter, the district court granted Skunkcap’s Rule 35 motion, in part, and reinstated
the original sentence. Based on the foregoing, we conclude that the district court did not impose
an illegal sentence, but rather imposed a new sentence that reflected the original sentence.
Therefore, contrary to Skunkcap’s assertion, the court imposed a five-year indeterminate
sentence for the underlying eluding conviction. Thus, the district court did not err in its ruling on
Skunkcap’s Rule 35 motion.
                                                   III.
                                            CONCLUSION
          The district court’s failure to properly instruct the jury in response to its question requires
vacating the conviction for misdemeanor malicious injury to property. Otherwise, Skunkcap has
failed to demonstrate any reversible error.          Accordingly, the district court’s judgment of
conviction and sentence for misdemeanor malicious injury to property is vacated. The district
court’s judgments of conviction and sentences, as enhanced, for felony eluding a police officer
and grand theft, as well as misdemeanor assault are affirmed.
          Judge MELANSON CONCURS.
          Judge LANSING, DISSENTING IN PART.
          I concur in all portions of the majority opinion except Section II(A)(2)(a) concerning the
jury instruction on the charge of eluding a police officer, I.C. § 49-1404(1). That instruction
stated:
                 In order for the defendant to be guilty of Fleeing or Attempting to Elude a
          Peace Officer, the State must prove each of the following:
                 1.      On or about the 14th day of November, 2006
                 2.      In the county of Bannock, State of Idaho;
                 3.      Defendant JAMES LEROY SKUNKCAP, the driver of;
                 4.      a Motor Vehicle; to wit: a blue Toyota Camry bearing Idaho
                         license 1BF9120, in the Kraft Rd. and Main St. area;
                 5.      Did willfully flee or attempt to elude a pursuing police vehicle;
                 6.      when given a visual or audible signal to bring the vehicle to a stop;
                         and


                                                    18
                 7.      while doing so, causes damage to the property of another or bodily
                         injury to another.
        ** It is sufficient proof that a reasonable person who [sic] knew or should have
        known that the visual or audible signal given by a peace officer was intended to
        bring pursued vehicle to a stop.
                If each of the above has been proven beyond a reasonable doubt, you must
        find the defendant guilty. If any of the above has not been proven beyond a
        reasonable doubt, you must find the defendant not guilty.

Because this offense requires that the State prove that the defendant “willfully” fled or attempted
to elude a pursuing police vehicle when given a visual or audible signal to stop, the State
necessarily is required to show that the defendant had some knowledge that he was being
signaled to stop by a law enforcement officer.         In my view, the italicized sentence in the
instruction may well have misled the jury about the State’s burden to prove that element.
        The first defect in the italicized sentence is that it is an incomplete sentence and does not
express a complete thought because the word “who” was dropped into the middle of the
sentence, apparently by mistake. Given that error, it is difficult to guess what the jury may have
thought the sentence meant.       Assuming, however, that the jury was perceptive enough to
recognize that the “who” did not belong in the sentence, it remains problematical because, as
Skunkcap argues, it could have been understood by the jury as relieving the State of its burden to
prove that Skunkcap actually, willfully attempted to elude the pursuing police vehicle. That is, it
may have led the jury to believe that Skunkcap would be guilty of the offense of eluding a police
officer even if he was not aware of the officer’s signal to stop, if a reasonable person would have
been so aware.
        As the majority points out, the sentence in question is drawn from Idaho Code § 49-
1404(1), which defines the offense of eluding a peace officer. However, within the statutory
context, it is very clear that the sentence refers only to the sufficiency of the proof that a visual or
audible signal to stop was given by the peace officer. In its entirety, that subsection states:
                Any driver of a motor vehicle who wilfully flees or attempts to elude a
        pursuing police vehicle when given a visual or audible signal to bring the vehicle
        to a stop, shall be guilty of a misdemeanor. The signal given by a peace officer
        may be by emergency lights or siren. The signal given by a peace officer by
        emergency lights or siren need not conform to the standards for decibel ratings or
        light visibility specified in section 49-623(3), Idaho Code. It is sufficient proof
        that a reasonable person knew or should have known that the visual or audible
        signal given by a peace officer was intended to bring the pursued vehicle to a
        stop.

                                                  19
Within the statute, the sentence in question follows immediately after a sentence explaining that
the emergency lights or siren need not conform to decibel ratings or light visibility specified
elsewhere in the Idaho Code. In that context, it is unmistakable that the “sufficient proof”
sentence refers to the adequacy of the proof that a visual or audible signal was given.
           Within the jury instruction, however, that context is not presented. The sentence does not
say that it is sufficient proof of a visual or audible signal if a reasonable person knew or should
have known that the signal given by a police officer was intended to bring the pursued vehicle to
a stop. Rather, after listing all seven elements that must be proved by the State, the sentence
says, “It is sufficient proof that a reasonable person . . . should have known that the visual or
audible signal given by a peace officer was intended to bring pursued vehicle to a stop.” Further,
the erroneous sentence is actually accentuated in the jury instruction and seemingly elevated in
importance as it is preceded by two asterisks and printed in italics. It could well have been
understood by a reasonable juror to mean that the State did not have to prove the defendant’s
actual knowledge of the signal to stop if a reasonable person in those circumstances would have
known of it.
           The defectiveness of this instruction is illuminated when it is compared to the pattern jury
instruction for this offense, I.C.J.I. 1033, where the point is correctly stated as follows: “The
signal to stop must be given by emergency lights or siren which a reasonable person knew or
should have known was intended to bring the pursued vehicle to a stop.”
           It cannot be said that this instructional error was harmless in Skunkcap’s case, for from
the evidence presented a reasonable jury could have concluded that he was not aware of the
officer’s flashing lights before Skunkcap’s vehicle came to a stop. The evidence showed that it
was a very short time, a matter of a few seconds, between the point when a police officer
activated his overhead lights and Skunkcap collided with Detective Collins’ unmarked vehicle.
Indeed, the officer who activated his overhead lights testified that he had only activated the lights
and had not had time to activate his siren prior to the collision, and Skunkcap testified that he
was not aware that he was being followed by a police officer or that an officer had signaled him
to stop.
           Because of this instructional error, I would vacate Skunkcap’s judgment of conviction for
eluding a police officer and remand for a new trial on that charge.



                                                   20
