               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43688

STATE OF IDAHO,                                )   2017 Unpublished Opinion No. 460
                                               )
       Plaintiff-Respondent,                   )   Filed: May 9, 2017
                                               )
v.                                             )   Stephen W. Kenyon, Clerk
                                               )
ANDREW SCOTT GOMEZ,                            )   THIS IS AN UNPUBLISHED
                                               )   OPINION AND SHALL NOT
       Defendant-Appellant.                    )   BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Deborah A. Bail, District Judge.

       Judgment of conviction for possession of a controlled substance, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford,
       Deputy Appellate Public Defender, Boise, for appellant. Kimberly A. Coster
       argued.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent. Russell J. Spencer argued.
                 ________________________________________________

GUTIERREZ, Judge
       Andrew Scott Gomez appeals from his judgment of conviction after a jury found him
guilty of possession of a controlled substance and possession of drug paraphernalia. Gomez
makes three arguments on appeal.      First, he contends the district court erred in admitting
evidence of marijuana contained in a backpack found in the vehicle. Second, he argues the
district court erred by failing to give a unanimity instruction for the possession of
methamphetamine charge. Last, Gomez argues the State did not present sufficient evidence to
prove its theory of constructive possession of methamphetamine. For the reasons set forth
below, we affirm.




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                                                  I.
                      FACTUAL AND PROCEDURAL BACKGROUND
       At 2:30 a.m., officers observed a vehicle parked in a darkened and secluded portion of a
commercial parking lot.      As one of the officers approached the vehicle, he noticed two
individuals inside--Gomez sat in the driver’s seat, and a woman, later identified as Jennifer
Thompson, sat in the passenger seat. The officer questioned the individuals about what they
were doing in the parked vehicle. Both individuals appeared nervous and gave inconsistent
answers about what they were doing, where they had been, and where they were going. After
receiving conflicting stories, the officer became suspicious and requested that dispatch send a
drug dog to the scene. Upon arrival, the drug dog alerted positively to the vehicle, prompting the
officers to search the vehicle for illegal substances.
       The officers’ search of the vehicle revealed baggies of methamphetamine in a makeup
bag on the passenger floor and in an eyeglass case in Thompson’s bra, a digital scale, loose
oxycodone pills, and a backpack containing marijuana. Gomez admitted to police that he had
agreed to transport Thompson in the vehicle in exchange for some methamphetamine. Following
Gomez’s arrest, he also admitted that he had a pipe in his underwear and that he had smoked
methamphetamine earlier in the day. Forensic analysis later revealed that the pipe contained
residue that tested positive as methamphetamine.
       The State charged Gomez with possession of a controlled substance, Idaho Code § 37-
2732(c), and possession of drug paraphernalia, I.C. § 37-2734A. The State also charged Gomez
with a persistent violator enhancement, I.C. § 19-2514. Prior to trial, the State provided notice of
its intent to introduce Idaho Rule of Evidence 404(b) evidence of the marijuana contained in the
backpack found in Gomez’s truck as well as Gomez’s statements pertaining to that evidence.
The district court ultimately concluded that the evidence was admissible, stating:
       The issue of course is possession. It is all part of the same act, same scene, and it
       is relevant and admissible. And I don’t think any prejudicial effect outweighs its
       probative value. I think it is part of the entire picture in this case. It is relevant to
       the issues brought before the jury.
       The case proceeded to trial. During both opening and closing statements, the State
argued that the jury could convict Gomez of possession based on three separate theories:
(1) Gomez’s admission that he smoked methamphetamine earlier in the day; (2) Gomez’s



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conduct of transporting Thompson and her drugs in exchange for a portion of those drugs; or
(3) Gomez’s actual possession of a pipe containing methamphetamine residue.
       The jury found Gomez guilty of both possession of a controlled substance and possession
of paraphernalia, with a persistent violator enhancement. The district court sentenced Gomez to
a unified term of ten years, with two years determinate, on the possession of a controlled
substance charge and a concurrent sentence of six months on the possession of paraphernalia
charge. Gomez filed a motion for reconsideration, which the district court denied. Gomez now
timely appeals his judgment of conviction on the possession of a controlled substance charge.
                                               II.
                                          ANALYSIS
       Gomez raises three issues on appeal. We first address Gomez’s argument that the district
court erred in admitting evidence of the marijuana contained in the backpack. We next address
whether the court committed fundamental error by failing to give a unanimity instruction to the
jury that would have required the jury to identify the specific act of possession upon which it
based its verdict. Finally, we consider Gomez’s argument that the State did not present sufficient
evidence to prove beyond a reasonable doubt that Gomez had constructive possession of
Thompson’s methamphetamine.
A.     Evidence of Marijuana in Backpack
       We first turn to Gomez’s argument that the district court erred when it admitted evidence
of marijuana contained in the backpack discovered in the trunk of the vehicle. Gomez challenges
the court’s determination of admissibility pursuant to Idaho Rule of Evidence 404(b). He argues
the evidence was improper character evidence relevant for no purpose other than to show
criminal propensity. When a trial court’s admission of evidence pursuant to I.R.E. 404(b) is
challenged on appeal, this Court applies a two-part standard in reviewing claims of error. State
v. Ehrlick, 158 Idaho 900, 913, 354 P.3d 462, 475 (2015). First, we freely review whether the
evidence is relevant to an issue other than the defendant’s character or criminal propensity. Id.
Second, we review the district court’s balancing of the probative value and prejudicial danger
pursuant to I.R.E. 403 for an abuse of discretion. Ehrlick, 158 Idaho at 913, 354 P.3d at 475.
       As a preliminary matter, the State contends Gomez has failed to challenge the basis
actually relied upon by the district court. The State suggests the district court admitted the
evidence pursuant to the doctrine of res gestae, not pursuant to I.R.E. 404(b). Thus, the State

                                                3
argues Gomez has not met his burden of demonstrating error. However, not only did the State
present the evidence as a Rule 404(b) issue below, but the district court’s reasoning reflects its
consideration of the evidence pursuant to Rule 404(b). As required under Rule 404(b), the court
considered the relevancy of the evidence and balanced the probative value against the prejudicial
effect.    Moreover, the State’s reliance on admissibility pursuant to the res gestae doctrine
conflicts with existing precedent.
          The Idaho Supreme Court recently held that the doctrine of res gestae may no longer be
relied upon in lieu of determining conformance with the Idaho Rules of Evidence. See State v.
Kralovec, ___ Idaho ___, ___, 388 P.3d 583, 588 (2017) (holding that “evidence previously
considered admissible as res gestae is only admissible if it meets the criteria established by the
Idaho Rules of Evidence”). Thus, even if we were to assume that the court admitted the
evidence pursuant to res gestae, we must still review whether the evidence was relevant to an
issue other than to show criminal propensity, as required by Rule 404(b).
          Idaho Rule of Evidence 404(b) provides as follows:
                   Evidence of other crimes, wrongs, or acts is not admissible to prove the
          character of a person in order to show that the person acted in conformity
          therewith. It may, however, be admissible for other purposes, such as proof of
          motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
          mistake or accident, provided that the prosecution in a criminal case shall file and
          serve notice reasonably in advance of trial, or during trial if the court excuses
          pretrial notice on good cause shown, of the general nature of any such evidence it
          intends to introduce at trial.
This rule prohibits introduction of evidence of acts other than the crime for which a defendant is
charged if its probative value is entirely dependent upon its tendency to demonstrate the
defendant’s propensity to engage in such behavior. State v. Grist, 147 Idaho 49, 54, 205 P.3d
1185, 1190 (2009). Of course, evidence of another crime, wrong, or act may implicate a
person’s character while also being relevant and admissible for some permissible purpose, such
as those listed in the rule. See State v. Pepcorn, 152 Idaho 678, 688-89, 273 P.3d 1271, 1281-82
(2012).
          In this case, we disagree with the court’s determination that the evidence was relevant for
a purpose other than to show criminal propensity. First, the State did not rely on the marijuana
contained in the backpack to support charging Gomez with possession of methamphetamine or
paraphernalia. Second, during trial, the State’s theory of Gomez’s constructive possession of
Thompson’s methamphetamine was premised upon their joint arrangement that Gomez would
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transport Thompson in exchange for methamphetamine.            In establishing the facts of this
arrangement, the State presented evidence that Gomez drove Thompson to a fast-food restaurant
to pick up some of her belongings--one of those items being a backpack that she put into the
trunk of Gomez’s vehicle. However, the State presented no evidence at trial as to why the
contents of the backpack were significant to the transportation arrangement between Gomez and
Thompson. We can assign no relevancy to the fact that the backpack contained marijuana
specifically, as opposed to clothing or other personal belongings.           Finally, we cannot
contemplate any other permissible purpose under I.R.E. 404(b) for which the evidence of
marijuana would have been relevant. Thus, we conclude that the evidence of the marijuana was
inadmissible as improper character evidence that was relevant only to show Gomez’s criminal
propensity.
       The State argues that even if the court erred by admitting the evidence of marijuana, the
error was harmless. Error is not reversible unless it is prejudicial. Idaho Criminal Rule 52; State
v. Stoddard, 105 Idaho 169, 171, 667 P.2d 272, 274 (Ct. App. 1983). The State bears the burden
of proving harmless error. State v. Perry, 150 Idaho 209, 225, 245 P.3d 961, 977 (2010). To
meet this burden, the State must show beyond a reasonable doubt that the error did not affect the
outcome of the case. Id.
       In support of its argument, the State points to the overwhelming evidence presented
during trial indicating Gomez was guilty of possessing methamphetamine. The State maintains
that evidence that Gomez was also transporting marijuana would not have affected the jury’s
guilty verdict on the methamphetamine possession charge. To establish guilt on the possession
of methamphetamine charge, the State was required to prove that Gomez knowingly possessed
methamphetamine; i.e., that he had knowledge of the presence of the drug. See I.C. 37-2732(c);
State v. Armstrong, 142 Idaho 62, 64, 122 P.3d 321, 323 (2005). The requisite knowledge of the
presence of a controlled substance may be proved by direct evidence or may be inferred from the
circumstances. State v. Blake, 133 Idaho 237, 242, 985 P.2d 117, 122 (1999).
       The record indicates that after his arrest, Gomez admitted to officers that Gomez had
smoked methamphetamine earlier in the evening. Gomez also told officers that Gomez had a
pipe hidden in his underwear. After officers retrieved the pipe from deep within Gomez’s




                                                5
underwear, Gomez admitted that the pipe had been smoked out of previously. 1 The officer
testified during trial to observing a white residue on the inside of the pipe, which was consistent
with methamphetamine burning. During trial, a forensic expert testified that she also was able to
observe a small amount of residue in the pipe and, upon forensic analysis, that residue tested
positive as being methamphetamine.
       Based upon the cumulative evidence presented by the State during trial, there was
overwhelming evidence that Gomez had knowledge that the residue within the pipe was
methamphetamine and that by admitting to possession of the pipe, Gomez also admitted to
possessing the methamphetamine within the pipe. Thus, we are persuaded that because the
evidence of guilt was so overwhelming, any error in the admission of the marijuana evidence
was harmless beyond a reasonable doubt.
B.     Unanimity Instruction
       Gomez next contends the trial court erred when it failed to give a unanimity instruction
regarding the charge of possession of methamphetamine. Whether the jury has been properly
instructed is a question of law over which we exercise free review. State v. Severson, 147 Idaho
694, 710, 215 P.3d 414, 430 (2009). 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).
       Idaho law requires trial courts to instruct the jury that it must unanimously agree on the
defendant’s guilt. IDAHO CONST. art. I, § 7; I.C. §§ 19-2316; and 19-2317; Severson, 147 Idaho
at 711, 215 P.3d at 431. As a general rule, however, the trial court is not required to instruct the
jury that it must unanimously agree on the facts giving rise to the offense. State v. Adamcik, 152
Idaho 445, 474, 272 P.3d 417, 446 (2012). Requiring unanimous factual findings would ignore
that different jurors may be persuaded by different pieces of evidence, even though they agree
upon the bottom line. State v. Southwick, 158 Idaho 173, 181, 345 P.3d 232, 240 (Ct. App.

1
       Audio recording of search incident to arrest at police station, starting at 35:35:
       Officer:        It’s clean as a whistle, where’d you . . . .
       Gomez:          Cuz I haven’t had (inaudible)
       Officer:        Ah, you’ve smoked out of it before.
       Gomez:          It’s been smoked out of, yeah
       Officer:        Yeah
       Gomez:          In the past.


                                                  6
2014). In cases involving alternative means of meeting statutory elements, the jury need only
agree on the bottom line. Id.
       An exception to this general rule applies where there is a genuine possibility that a
conviction may occur as a result of different jurors concluding that the defendant committed
different criminal acts. Id. This occurs when the State presents evidence that the defendant has
committed several temporally discrete acts, each of which would independently support a
conviction for the crime charged. Id. In such a situation, the trial court should instruct the jury
that it must unanimously agree on the specific incident constituting the offense, regardless of
whether the defendant requests such an instruction; or, alternatively, the State must elect the act
upon which it will rely for the conviction. State v. Gain, 140 Idaho 170, 172-73, 90 P.3d 920,
922-23 (Ct. App. 2004). Here, there was no such instruction given or election made.
       Gomez contends that although the State only charged Gomez with one count of
possession of methamphetamine, which did not specify the acts upon which the State was
relying, the State improperly introduced three separate and distinct acts of possession during trial
to prove its case. During opening and closing statements, the State argued that the jury could
convict Gomez of possession based upon the following three theories: (1) his admission that he
smoked methamphetamine earlier in the day; (2) his conduct of transporting Thompson and her
drugs in exchange for a portion of the drugs found on her person or in her makeup bag; or
(3) Gomez’s actual possession of a pipe containing methamphetamine residue. Then, during
trial, the State focused its presentation of evidence on the methamphetamine found as a result of
the officers’ investigation of the vehicle--the second and third theories.
       Gomez raises his claim of instructional error for the first time on appeal. Ordinarily, a
party may not claim that a jury instruction was erroneous unless the party objected to the
instruction prior to the start of jury deliberations. I.C.R. 30(b). 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 Perry, 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) is clear or

                                                  7
obvious without the need for reference to any additional information not contained in the
appellate record, including information about whether the failure to object was a tactical
decision; and (3) affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978.
        Gomez maintains that any one of the three theories argued by the State could support a
conviction for possession of methamphetamine. Thus, Gomez argues the jury should have been
instructed that it must unanimously agree on the specific act constituting the charged offense and
the omission of such instruction constitutes fundamental error. We focus our examination of
error upon the factual basis for the theories of possession advanced by the State to determine
whether they constitute multiple acts, as argued by Gomez, or alternative theories, as argued by
the State.
        1.     Possession of methamphetamine found after investigation of Gomez’s vehicle
        We first examine the State’s second and third theories of guilt--essentially, those that
stem from the physical discovery of methamphetamine after officers investigated the vehicle.
During trial, the State alleged that Gomez was in actual possession of methamphetamine based
upon the residue found in the pipe located on Gomez’s person. The State also alleged Gomez
had constructive possession of methamphetamine based upon the drugs found on Thompson’s
person or in her makeup bag. The State maintains that its theories of actual possession and
constructive possession are simply alternative factual means by which the element of possession
could be proved, but they do not constitute multiple criminal acts of possession such to
necessitate a unanimity instruction.
        In Schad v. Arizona, 501 U.S. 624 (1991), the United States Supreme Court addressed the
issue of whether due process requires jury unanimity on a particular theory of a charged crime.
The Court stated: “We have never suggested that in returning general verdicts in such cases the
jurors should be required to agree upon a single means of commission,” because “different jurors
may be persuaded by different pieces of evidence, even when they agree upon the bottom line.”
Id. at 631-32 (internal quotation marks and citation omitted). The Court concluded, “Plainly
there is no general requirement that the jury reach agreement on the preliminary factual issues
which underlie the verdict.”     Id. at 632 (citation omitted).    In concurrence, Justice Scalia
observed that “it has long been the general rule that when a single crime can be committed in
various ways, jurors need not agree upon the mode of commission.” Id. at 649 (J. Scalia,
concurring).

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       If the State’s allegations establish alternative theories of a single criminal offense, then no
unanimity instruction was required.      On the other hand, if the State’s allegations establish
multiple offenses, then Gomez was entitled to a unanimity instruction. Determining whether the
State’s allegations constitute a single offense or multiple offenses requires an inquiry into the
circumstances of the conduct and consideration of the intent and objective of the actor. State v.
Bush, 131 Idaho 22, 33-34, 951 P.2d 1249, 1260-61 (1997). To establish multiple offenses, there
must be “a distinct union of mens rea and actus reus separated by a discrete period of time and
circumstance from any other such similar incident” for each of the alleged acts of possession.
Miller v. State, 135 Idaho 261, 268, 16 P.3d 937, 944 (Ct. App. 2000).
       We have previously addressed whether the State’s prosecution of a single count of
possession of a controlled substance required a unanimity instruction where the State based its
prosecution on two alternative factual grounds to establish the defendant’s knowledge and
control of a substance. See Southwick, 158 Idaho 173, 345 P.3d 232. In Southwick, officers
discovered methamphetamine in two locations in the defendant’s vehicle after pulling over the
defendant and her passenger. Id. at 177, 345 P.3d at 236. The State charged the defendant with
a single count of possession of a controlled substance based upon alternative theories that she
possessed the substance based upon (1) her knowledge and control of methamphetamine residue
found on a scale located between two seats in the vehicle or (2) her knowledge and control of
methamphetamine crystals located in a baggie inside the passenger door compartment of the
vehicle. Id. at 182, 345 P.3d at 241. On appeal, the defendant argued she was entitled to a
unanimity instruction because the two theories constituted separate and distinct criminal acts. Id.
We considered the fact that the substances were discovered in different locations within the
vehicle, but deemed that fact nondispositive.        Id.   Ultimately, after considering all of the
circumstances as well as the defendant’s apparent intent and objective, we held that the acts were
not separate and distinct, but rather alternative factual theories for proving possession. Id.
Because the jury could agree on the “bottom line” that the defendant possessed a controlled
substance at a single time and in a single location, we concluded that a specific unanimity
instruction was not required. Id.
       The California Court of Appeals addressed a similar issue in People v. Ortiz, 145 Cal.
Rptr. 3d 907 (Cal. Ct. App. 2012). In Ortiz, the state charged the defendant with possession of a
firearm by a felon and carrying a firearm in a vehicle, as well as related enhancements to those

                                                 9
charges. Id. at 925. During trial, the jury heard conflicting evidence as to whether the defendant
actually possessed a gun, actually possessed a Taser, constructively possessed someone else’s
gun, or constructively possessed someone else’s Taser. Id. On appeal, the defendant argued that
the trial court should have given an instruction requiring the jury to unanimously agree on the
specific acts constituting the crimes. Id. at 926. The court disagreed, concluding the state had
merely advanced multiple theories of a single discrete crime and not multiple acts constituting
multiple crimes. Id. The court reasoned that even if the jurors did not unanimously agree as to
exactly what the defendant did to commit the crime--whether he actually or constructively
possessed a firearm--such unanimous agreement of the underlying facts was not required. Id.
See also People v. Russo, 25 P.3d 641, 645 (Cal. 2001) (holding that “where the evidence shows
only a single discrete crime but leaves room for disagreement as to exactly how that crime was
committed . . . the jury need not unanimously agree on the basis or, as the cases often put it, the
‘theory’ whereby the defendant is guilty”).
       Here, we are persuaded by the State’s argument that its theories of actual possession and
constructive possession do not constitute multiple discrete crimes or acts of possession, but
rather multiple theories of a single discrete crime of possession. Similar to Southwick, Gomez
was charged with a single count of possessing a controlled substance on a single date and in a
single location. The criminal complaint did not specify the means by which that possession
occurred. During trial, the State alleged alternative factual grounds from which the jury could
conclude that Gomez was guilty of the single discrete crime of possession of methamphetamine
on that date and in that location.        Just as it was not dispositive in Southwick that the
methamphetamine was found in different locations within the vehicle, it is also not dispositive
that the methamphetamine in this case was found in multiple locations inside the vehicle and on
Gomez’s person. Examining Gomez’s apparent intent to transport Thompson in exchange for
methamphetamine, it is reasonable to infer that his objective was possession of
methamphetamine. Therefore, we conclude that the State’s allegations of actual and constructive
possession constitute alternative theories upon which it relied in proving the single crime of
possession charged. Similar to Ortiz, the jurors did not need to unanimously agree on the theory
upon which they based their finding of guilt. Thus, Gomez was not entitled to a unanimity
instruction based upon these acts.        Gomez has not met his burden of demonstrating a
constitutional violation on the basis of the State’s presentation of these two theories to the jury.

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       2.      Admission to smoking methamphetamine earlier in the day
       We next turn to the State’s theory that Gomez was guilty of possession based upon his
admission to smoking methamphetamine earlier in the day.          The State concedes that they
improperly introduced a separate act of possession by making this assertion.           The State
acknowledges that, based on this error, Gomez was entitled to a unanimity instruction even
though none was provided. We accept the State’s concession; the State’s error violated Gomez’s
unwaived constitutional rights. We must, therefore, consider whether Gomez has met his burden
under the remaining two prongs of Perry.
       Regarding the second prong of Perry, Gomez carries the burden of showing that the error
was clear or obvious from the record. To meet this standard, there must be no question as to
whether the failure to object was a tactical decision. Perry, 150 Idaho at 228, 245 P.3d at 980.
The State speculates that Gomez’s failure to request a specific unanimity instruction could have
been a tactical decision. Specifically, the State suggests that even though Gomez was entitled to
a remedy because of the State’s error, defense counsel chose to forego requesting a specific
limiting instruction, instead opting to cure the error himself during closing arguments. The State
points to the following statements by defense counsel:
              Now, there is no question that Andrew Gomez was a user of
       methamphetamine. In fact, again as [the State] pointed out per his own admission
       they had smoked a bowl earlier in the evening. He was a user. No question.
              In getting back to the elements again. Was he knowingly in possession of
       methamphetamine when he smoked that bowl? Of course. You can’t smoke a
       bowl of methamphetamine and not know you possess it.
              The problem is he is not being charged with being a user. And he is not
       being charged with what he did earlier in the evening. He is being charged with
       knowingly . . . possessing methamphetamine at the time of his arrest when they
       show up at the scene at the car.
The State submits these statements show that defense counsel attempted to cure the error by
taking the State’s “use” theory “off the table.”
       Gomez counters that such speculation is absurd, as it would rely upon numerous
unreasonable assumptions of counsel. First, defense counsel would have had to believe that he
could dictate the acts upon which the State could rely in proving its case simply by arguing in
opposition to the State during closing argument. Second, defense counsel would have had to
believe that the jury would ignore the court’s instruction to not consider either attorney’s
argument as evidence. Third, defense counsel would have had to believe that the jury would


                                                   11
believe his argument over that of the State. Finally, even if counsel held any of the erroneous
beliefs proffered by the State, Gomez contends there was no possibility that counsel could gain
any tactical advantage by failing to object.
       We have previously held that the State’s mere speculation that counsel may have made a
tactical decision not to object is insufficient to introduce ambiguity into the record. See State v.
Sutton, 151 Idaho 161, 166-67, 254 P.3d 62, 67-68 (Ct. App. 2011). In Sutton, the record
contained no indication of counsel’s knowledge of a defective instruction and likewise contained
no indication that counsel’s failure to object was intentional. Id. However, on appeal, the State
speculated that counsel failed to object in the hope that if Sutton was convicted, the erroneous
instruction would provide a basis for a new trial.        Id.   We rejected the State’s argument,
determining that there was no indication in the record that Sutton knew more about the law than
the State or the trial court, and there was no evidence that Sutton was attempting to sandbag the
court. Id. Because the only indicia that Sutton’s failure to object was a tactical decision came
from the State’s speculation, we concluded that information outside the record was not necessary
to determine that the error was not a tactical decision. Id. at 167, 254 P.3d at 68.
       Conversely, where information in the record suggests that a failure to object might have
been a reasonable tactical decision, we will be unable to ascertain whether the error is clear or
obvious without consideration of additional information outside the record. See State v. Grove,
151 Idaho 483, 491, 259 P.3d 629, 637 (Ct. App. 2011). In Grove, we determined that counsel’s
failure to object to damaging testimonial evidence could have been a viable trial strategy in a
situation where objecting might have prompted the State to call an additional adverse witness.
Id. We reasoned that because it would have been reasonable for defense counsel to allow the
testimony, it was unclear from the record whether counsel’s failure to object was a tactical
decision. Id.
       In this case, we are not persuaded that information outside the record is necessary to
ascertain whether defense counsel’s failure to object was a tactical decision. First, the statements
made by defense counsel during closing arguments do not rise to the level of implicating a
tactical decision. Even accepting the State’s speculation that defense counsel was attempting to
negate the State’s “use theory,” defense counsel’s argument did not suggest his recognition that a
unanimity instruction was required; nor did his argument indicate a conscious decision to forego
objecting. Moreover, unlike Grove, where the defendant’s failure to object could have given the

                                                 12
defendant a strategic advantage, we recognize no potential advantage to not obtaining a
unanimity instruction in Gomez’s case. Not only could defense counsel not have cured the
State’s error through argument, but Gomez also gained no advantage by failing to object.
Similar to Sutton, we are left with nothing more than the State’s speculation that Gomez failed to
object to the absence of a unanimity instruction in the hopes of gaining a tactical advantage by
curing the error himself. Such speculation is not sufficient to introduce ambiguity into the
record. Thus, we conclude that additional information outside the record is not necessary to
determine that Gomez’s failure to object was not a tactical decision. Gomez has satisfied the
second prong of Perry.
       Finally, regarding the third prong of Perry, Gomez has the burden of demonstrating that
the error affected his substantial rights. See Perry, 150 Idaho at 226, 245 P.3d at 978. This
means he must demonstrate a reasonable probability that the error affected the outcome of the
trial. See id. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland v. Washington, 466 U.S. 668, 694 (1984).
       In his briefing, Gomez focuses his prejudice argument on the State’s theories of actual
possession and constructive possession. As discussed earlier, Gomez was not entitled to a
unanimity instruction based upon these alternative theories. Thus, Gomez cannot establish
prejudice on the basis that (1) he had to defend against those two theories or (2) there was
insufficient evidence to support one of those two theories.
       Gomez also makes a general assertion that “the jury could have reached a guilty verdict
while disagreeing on the specific act of possession.” Gomez provides no facts suggesting the
jury was confused or divided as to which act constituted the grounds for its conviction. Such a
blanket statement unsupported by specific argument or evidence from the record is insufficient to
establish a reasonable probability that he was prejudiced. See Severson, 147 Idaho at 710, 215
P.3d at 430 (holding defendant did not show prejudice where he failed to present any facts or
arguments to support conclusion that specific error resulted in prejudice). Moreover, existing
precedent contradicts any notion that a court’s failure to give a unanimity instruction is
inherently prejudicial. See State v. Montoya, 140 Idaho 160, 168, 90 P.3d 910, 918 (Ct. App.
2004) (finding absence of unanimity instruction not prejudicial where evidence presented was
sufficient to support finding of guilt as to any of the acts); Miller, 135 Idaho at 268, 16 P.3d at
944 (same). Therefore, we conclude that Gomez has not met his burden of showing that he was

                                                13
prejudiced by the district court’s failure to give a unanimity instruction.     Gomez has not
established fundamental error.
C.     Sufficiency of the Evidence
       Finally, we turn to Gomez’s contention that the State did not present sufficient evidence
to prove beyond a reasonable doubt that Gomez had constructive possession of Thompson’s
methamphetamine. Based upon our analysis above, concluding that the State’s allegations of
actual and constructive possession constitute alternative factual grounds as to how Gomez
committed a single crime, we need not address Gomez’s contentions regarding sufficiency of the
evidence.
       In Southwick, we considered whether a reversal of a defendant’s conviction was required
where one of the alternative factual grounds alleged by the State was not supported by sufficient
evidence. Southwick, 158 Idaho at 182, 345 P.3d at 241. We held that where the jury is
instructed on “alternative underlying factual means of meeting [an] element . . . one reasonable
and the other unreasonable, we will assume, absent a contrary indication in the record, that the
jury based its verdict on the reasonable ground that is supported by sufficient evidence.” Id. at
183, 345 P.3d at 242.
       Here, Gomez limits his assignment of error to the insufficiency of the State’s evidence
supporting its theory of constructive possession. However, Gomez points to no indication in the
record that the jury based its verdict exclusively on the purported unreasonable basis.
Significantly, because Gomez does not challenge the sufficiency of evidence regarding the
State’s theory of actual possession, we can presume that the State’s evidence was sufficient. See
State v. McIntosh, 160 Idaho 1, 7, 368 P.3d 621, 627 (2016) (holding that “we will not search the
record for error and that errors not assigned with particularity will not be addressed”). Thus,
even if we are to assume insufficient evidence of constructive possession, we are justified in
presuming that the jury based its verdict on the actual possession theory, which Gomez does not
challenge as unreasonable or unsupported. Therefore, Gomez has failed to establish that the jury
based its verdict on anything other than reasonable and factually supported allegations of actual
possession.




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                                              III.
                                        CONCLUSION
       The district court erred in admitting evidence of the backpack containing marijuana;
however, the error was harmless. The district court also erred by not giving a unanimity
instruction as to the State’s theory of possession based on Gomez’s admission to smoking
methamphetamine earlier in the day; however, Gomez has failed to show that he was prejudiced
by the error. Finally, we need not address Gomez’s contention that there was insufficient
evidence to support the State’s constructive possession theory, as Gomez does not challenge the
sufficiency of evidence supporting the State’s alternative theory of actual possession.
Accordingly we affirm Gomez’s judgment of conviction for possession of a controlled
substance, with a persistent violator enhancement.
       Judge MELANSON and Judge HUSKEY CONCUR.




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