               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38241

STATE OF IDAHO,                                   )     2012 Unpublished Opinion No. 471
                                                  )
       Plaintiff-Respondent,                      )     Filed: May 11, 2012
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
TARA MARIE MOSKIOS,                               )     THIS IS AN UNPUBLISHED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. Darla S. Williamson; Hon. Daniel B. Meehl, District Judges.

       Judgment of conviction and sentence for trafficking in marijuana, affirmed.

       Bublitz Law, PC, Boise, for appellant. Jessica B. Bublitz argued.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent. Kenneth K. Jorgensen argued.
                 ________________________________________________
SCHWARTZMAN, Judge Pro Tem
       Tara Marie Moskios was convicted of trafficking in marijuana, Idaho Code § 37-
2732B(a)(1)(B), following a jury trial. She asserts that her case was improperly consolidated for
trial with that of her co-defendant. She also asserts that the State elicited inadmissible testimony
and that the district court erred by refusing to give a proposed jury instruction. We affirm.
                                                 I
                                        BACKGROUND
       A law enforcement officer received a tip from R.T., a confidential informant, indicating
that Carlos Pinto (hereinafter “Carlos”) would transport approximately twenty-one pounds of
marijuana from Bend, Oregon to a house in Kuna, Idaho on December 10, 2009. Acting on the
tip, officers conducted surveillance, and observed Carlos and his girlfriend, Moskios, as they
arrived at the house in Kuna, where Brian Pinto (hereinafter “Brian”) and his girlfriend,
Samantha Martindale, resided. Carlos and Brian unloaded luggage from the car and into the



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house. The luggage included a large black duffel bag that Carlos had “load[ed] up” with
marijuana earlier that day.
       Shortly thereafter, R.T. went to the house to conduct a previously arranged drug
transaction. He was carrying prerecorded funds supplied by the police, and was equipped with
an audio device which allowed police to monitor and record the transaction. A copy of the
recording was subsequently entered into evidence at trial. As can be heard on the recording,
Carlos described how a police officer closely followed Carlos and Moskios for fifteen miles
during the drive from Burns to Kuna, but never pulled them over. During the narrative, Moskios
noted that there were “21 ‘Ps’ in the back of my car,” and both Carlos and Moskios explained
that it is “better to cruise with the family” to help avoid being stopped by police. Brian and R.T.
went to a bedroom in the house where Brian retrieved six pounds of marijuana from a large black
duffel bag and gave it to R.T., who in turn gave Brian the prerecorded funds to pay for a prior
transaction.
       After R.T. left, law enforcement officers executed a search warrant. Officers located the
prerecorded funds, approximately fifteen pounds of marijuana in the duffel bag, and additional
marijuana in the bedroom. The total amount of marijuana seized, including the marijuana
obtained from the controlled buy, weighed more than twenty-three pounds.             Moskios was
arrested, admitted to police that she knew there was twenty-one pounds of marijuana in her
vehicle when she drove from Burns to Kuna, and was subsequently indicted. Pursuant to the
State’s motion, the charge against Moskios was consolidated with the charges against Brian,
Carlos, and Martindale. Brian and Carlos pled guilty before trial. Moskios and Martindale were
tried jointly, and both were convicted of trafficking in marijuana. The district court entered
judgment and imposed upon Moskios a unified sentence of five years, with a three-year
determinate portion.
                                                II.
                                           ANALYSIS
A.     Moskios’ Improper Joinder Claim Is Not Reviewable
       Moskios asserts that her case was improperly joined for trial under Idaho Criminal
Rule 13 with that of co-defendant Samantha Martindale when “there was no real nexus of
offenses for the two defendants, other than one’s significant other had sold drugs to the other’s




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significant other” and because the joinder caused confusion and prejudice. The State argues that
the error is not reviewable because it was not preserved.
       An Idaho appellate court generally will not consider an assertion of error on appeal unless
the issue was preserved in the trial court proceedings. State v. Perry, 150 Idaho 209, 224, 245
P.3d 961, 976 (2010); State v. Johnson, 126 Idaho 892, 896, 894 P.2d 125, 129 (1995). This rule
encourages parties to timely raise objections in order to give the trial court an opportunity to
consider and resolve or avoid the mistake.           Perry, 150 Idaho at 224, 245 P.3d at 976.
Nevertheless, a claimed trial error in a criminal case that was not followed by a contemporaneous
objection may be reviewed on appeal if it amounts to fundamental error. To establish reversible
fundamental error:
       (1) the defendant must demonstrate that one or more of the defendant’s unwaived
       constitutional rights were violated; (2) the error must be clear or obvious, without
       the need for any additional information not contained in the appellate record,
       including information as to whether the failure to object was a tactical decision;
       and (3) the defendant must demonstrate that the error affected the defendant’s
       substantial rights, meaning (in most instances) that it must have affected the
       outcome of the trial proceedings.

Id. at 226, 245 P.3d at 978 (footnote omitted). If the alleged error satisfies the first two elements
of the Perry test, the error is reviewable. Id. To obtain appellate relief, however, the defendant
must further persuade the reviewing court that the error was not harmless; i.e., that there is a
reasonable possibility that the error affected the outcome of the trial and thereby prejudiced the
defendant. Id.
       Moskios did not object to the joinder or file a motion to sever. In her opening appellate
brief, Moskios asserts that the joinder caused prejudice “through confusion of the issues, and
spillover of the issues,” without articulating a constitutional violation.      In her reply brief,
Moskios asserts, for the first time, that “the improper joinder in this case affected her Fourteenth
Amendment due process right to a fair trial.” Because the constitutional claim was raised for the
first time in Moskios’ reply brief, this Court will not consider it. State v. Zichko, 129 Idaho 259,
263, 923 P.2d 966, 970 (1996) (holding that a party waives an issue on appeal if argument or
authority is lacking); State v. Gamble, 146 Idaho 331, 336, 193 P.3d 878, 883 (Ct. App. 2008)
(holding that the court will not ordinarily consider issues raised for the first time in the reply
brief). Moskios’ claim of erroneous joinder is not reviewable because the alleged error was not



                                                 3
objected to, no motion for severance was ever filed, and Moskios has not asserted, much less
demonstrated, fundamental error.
B.     Moskios’ Ineffective Assistance of Counsel Claim Would be Better Brought in Post-
       Conviction Proceedings
       Moskios next asserts that counsel’s failure to file a motion for severance was ineffective
assistance of counsel. Moskios acknowledges that claims of ineffective assistance of counsel are
ordinarily brought through post-conviction relief proceedings, but nevertheless asks this Court to
consider the claim on direct appeal because the failure to file a motion for severance “is so
fundamental and was so severely prejudicial in her case, that it amounts to ineffective assistance
of counsel and is therefore properly brought on direct appeal.”
       Idaho appellate courts ordinarily do not address claims of ineffective assistance of
counsel on direct appeal for two interrelated reasons. First, the record is rarely adequate for
review of such claims (which generally involve complex factual determinations of competency).
Sparks v. State, 140 Idaho 292, 296, 92 P.3d 542, 546 (Ct. App. 2004); State v. Saxton, 133
Idaho 546, 549-50, 989 P.2d 288, 291-92 (Ct. App. 1999). Second, an adverse decision after a
review on the merits would become res judicata, thereby barring the claim in a post-conviction
action. State v. Hayes, 138 Idaho 761, 766, 69 P.3d 181, 186 (Ct. App. 2003); State v. Mitchell,
124 Idaho 374, 375-76, 859 P.2d 972, 973-74 (Ct. App. 1993). “It should by now be clear that
appellate counsel may do their clients a disservice by attempting to present such claims in an
appeal from the criminal judgment, where the claims cannot be sustained on the existing record.”
Saxton, 133 Idaho at 550, 989 P.2d at 292. Only in the rare situation where the inadequacy of
trial counsel’s performance can be determined solely by reviewing the trial transcript will we
address a claim of ineffective assistance on direct appeal. See id. We decline to address
Moskios’ ineffective assistance of counsel claim, and reiterate the oft-repeated admonishment
that claims of ineffective assistance of counsel are more appropriately pursued through post-
conviction relief actions, where the evidentiary record can be properly developed. Saxton, 133
Idaho at 549-50, 989 P.2d at 291-92.
C.     Rule 404(b) Claim Is Not Reviewable
       Moskios asserts that testimony from three witnesses was erroneously permitted in
violation of Idaho Rule of Evidence 404(b).         However, Moskios did not raise an express
Rule 404(b) objection during the testimony of any of the witnesses. If an objection is not raised
below, it generally may not be considered for the first time on appeal. State v. Norton, 134 Idaho

                                                4
875, 879, 11 P.3d 494, 498 (Ct. App. 2000). As noted above, Idaho appellate courts will review
fundamental errors that clearly violate a defendant’s constitutional rights as an exception to this
general rule. Perry, 150 Idaho at 226, 245 P.3d at 978. Thus, where an asserted error relates to a
violation of a rule or statute, instead of an infringement upon a constitutional right, the
fundamental error doctrine may not be invoked. Id. at 228, 245 P.3d at 980. Here, Moskios has
not asserted that the alleged violation was constitutional in nature.
       Additionally, Moskios does not identify what specific portions of testimony violated
Rule 404(b), but instead refers this Court to well over fifty pages of trial transcript including
hundreds of questions and answers. It is not the role of an appellate court to scour the record in
search of specific instances of errors that are alleged in an appellant’s brief by way of sweeping
and conclusory assertions. State v. Norton, 151 Idaho 176, 183, 254 P.3d 77, 84 (Ct. App. 2011)
(“This Court will not pore through a trial transcript and evaluate each question and answer in
order to determine whether there is objectionable material, let alone add them up and analyze
them as a collective due process violation. As noted above, one of the purposes of the
contemporaneous objection requirement is to avoid such a result.”).
       Accordingly, we decline to review Moskios’ Rule 404(b) claims both because Moskios
has not alleged, much less demonstrated, a clear constitutional violation, and because Moskios
has not identified the specific testimony being challenged.
D.     Moskios’ Claim That the Prosecutor Exceeded the Scope of Direct Examination Is
       Partially Unreviewable and Otherwise Non-Meritorious
       Moskios asserts that the court abused its discretion by allowing the prosecutor to elicit
testimony from Carlos that went beyond the scope of direct examination. Moskios cites a single
objection--in which defense counsel stated that the prosecutor had exceeded the scope of direct--
made after the prosecutor asked Carlos how long he had been unemployed.
       Idaho Rule of Evidence 611(b) governs the scope of cross-examination, and provides that
“[c]ross-examination should be limited to the subject matter of the direct examination and
matters affecting the credibility of the witness. The court may, in the exercise of discretion,
permit inquiry into additional matters as if on direct examination.” As is made clear by that rule,
the control of cross-examination is committed to the sound discretion of the trial judge. See
State v. Brummett, 150 Idaho 339, 344, 247 P.3d 204, 209 (Ct. App. 2010). The court acted
within its authority under Rule 611(b) to allow the prosecutor to ask Carlos how long he had
been unemployed. At the time the question was asked, there was nothing to indicate that the

                                                  5
question was anything other than innocuous background information to provide context for
Carlos’s other testimony. Thus, the district court did not abuse its discretion by overruling
Moskios’ objection.
        Moskios also appears to argue that the district court abused its discretion by allowing the
testimony because subsequent questions and answers suggested that Carlos and Moskios had
relied primarily on income received from Carlos’s drug dealing for two years, and thus suggested
that Moskios was at least aware of the activity, if not involved in it, in violation of Rule 404(b).
However, defense counsel did not object to the subsequent questions under either Rule 404(b), as
already discussed, or under Rule 611(b). Moskios has not alleged fundamental error. Thus, to
the extent Moskios challenges “the entire line of questioning which ensued on cross-
examination,” the issue was not preserved by a timely objection below, and is not reviewable.
Perry, 150 Idaho at 224, 245 P.3d at 976.
E.      The District Court’s Refusal to Give Moskios’ Proposed Instruction Was Not Error
        Moskios contends that the district court erred by refusing to instruct the jury that the State
was required to prove that the defendant had “dominion and control” of a substance in order to
prove possession. The court initially accepted Moskios’ proposed instruction, but later reversed
itself and instructed the jury without the word “dominion” as follows: “A person has possession
of something if the person knows of its presence and has physical control of it, or has the power
and intention to control it.”
        The question of 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).          We presume the jury followed the district court’s
instructions. 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).
        The instruction given by the court was the standard I.C.J.I. 421, and thus is presumptively
correct. McKay v. State, 148 Idaho 567, 571 n.2, 225 P.3d 700, 704 n.2 (2010); State v. Merwin,
131 Idaho 642, 647, 962 P.2d 1026, 1031 (1998).            Moskios argues that the instruction is
erroneous because previous cases have included “dominion” as an element of possession.
Moskios relies on State v. Rozajewski, 130 Idaho 644, 647, 945 P.2d 1390, 1393 (Ct. App. 1997)


                                                  6
where we held that constructive possession exists when a defendant “had the power and intent to
exercise dominion and control over the substance.” However, Rozajewski in turn relies on State
v. Garza, 112 Idaho 778, 784, 735 P.2d 1089, 1095 (Ct. App. 1987), in which this Court used the
phrases “dominion and control” and “dominion or control” interchangeably. (Emphasis added.)
See also State v. Zentner, 134 Idaho 508, 510, 5 P.3d 488, 490 (Ct. App. 2000) (using phrase
“dominion or control”); State v. Fairchild, 121 Idaho 960, 968-69, 829 P.2d 550, 558-59 (Ct.
App. 1992) (approving instruction with “dominion or control”); State v. Montague, 114 Idaho
319, 321 n.2, 756 P.2d 1083, 1085 n.2 (Ct. App. 1988) (using phrase “dominion or control”).
None of these cases indicate an intent to create an additional element through the use of the word
“dominion.” As stated by a California appellate court:
       The phrase [“dominion and control”] is redundant and archaic. The word
       “dominion” is defined as “Control; possession” (Black’s Law Dict. (8th ed. 2004)
       p. 525); or “rule; control; domination.” (Random House Dict. of the English
       Language (2d ed.1987) p. 582.) To dominate is “to rule over; govern; control.”
       (Ibid.)

People v. Montero, 66 Cal. Rptr. 3d 668, 672 (Cal. Ct. App. 2007).
       Moskios has not rebutted the presumption that the I.C.J.I. instruction given by the trial
court--which excluded the word “dominion”--is a correct statement of law. Therefore, the
district court did not err by refusing to give Moskios’ proposed instruction instead of the I.C.J.I.
instruction.
F.     The Cumulative Error Doctrine Is Inapplicable
       Finally, Moskios claims that the cumulative error doctrine applies here, necessitating a
reversal of her conviction. “Under the doctrine of cumulative error, a series of errors, harmless
in and of themselves, may in the aggregate show the absence of a fair trial. However, a
necessary predicate to the application of the doctrine is a finding of more than one error.” Perry,
150 Idaho at 230, 245 P.3d at 982 (citation omitted). Since Moskios has failed to demonstrate
any error, the cumulative error doctrine is inapplicable.
                                                III.
                                         CONCLUSION
       Moskios did not object to the consolidation of her case or the admission of evidence that
she now contends violated Rule 404(b), and has not demonstrated a constitutional violation, thus
the claims are not reviewable. We decline to review Moskios’ claim of ineffective assistance of


                                                 7
counsel on direct appeal. The district court did not abuse its discretion by permitting the State to
exceed the scope of direct examination, and did not err by refusing to give Moskios’ proposed
instruction. Finding no error, we affirm Moskios’ conviction for trafficking in marijuana.
       Judge GUTIERREZ and Judge MELANSON CONCUR.




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