               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                            Docket Nos. 43818/43819/44105/44106

STATE OF IDAHO,                                )    2017 Unpublished Opinion No. 450
                                               )
       Plaintiff-Respondent,                   )    Filed: April 27, 2017
                                               )
v.                                             )    Stephen W. Kenyon, Clerk
                                               )
JACOB S. DAVIS,                                )    THIS IS AN UNPUBLISHED
                                               )    OPINION AND SHALL NOT
       Defendant-Appellant.                    )    BE CITED AS AUTHORITY
                                               )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Payette County. Hon. Susan E. Wiebe, District Judge.

       Judgment of conviction for two counts of lewd conduct with child under sixteen,
       two counts of sexual battery of a minor child sixteen or seventeen years of age,
       and one count possession of sexually exploitative material, affirmed; judgment of
       conviction and sentence for one count of failure to notify of address of sexual
       offender registration, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Jacob S. Davis appeals from his judgments of conviction arising from two separate cases
that have been consolidated for purposes of appeal. He argues that the district court erred in
denying Davis’s mistrial motion in one of the cases because the prosecutor committed
misconduct. Davis also argues the district court erred during sentencing of the other case
because the court considered the improper conviction from the first case when imposing
sentence. For the reasons set forth below, we affirm.




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                                                  I.
                      FACTUAL AND PROCEDURAL BACKGROUND
        Davis was required to register as a sex offender based on prior convictions. When an
individual came forward with allegations of theft against Davis, officers became aware that
Davis was residing somewhere other than the address where he was registered. Officers were
also informed by the same individual that Davis was living with two teenaged boys. After
officers conducted interviews with these boys, as well as other witnesses, it was discovered that
Davis was sexually involved with the boys. Further investigation revealed that Davis was in
possession of sexually exploitative materials.
        The State charged Davis in one case (the “sex offender registration case”) with failing to
provide notice of his change of address for his sex offender registration, Idaho Code §§ 18-
8304(1); 18-8309(1), (2), (3); and 18-8311(1). He was also charged with an enhancement for
being a persistent violator in that case, I.C. § 19-2514.
        In a separate case (the “sexual misconduct case”), the State charged Davis with four
counts of lewd conduct with a child under sixteen, I.C. § 18-1508; four counts of sexual battery
of a minor child sixteen or seventeen years of age, I.C. § 18-1508A; seven counts of possession
of sexually exploitative material for other than a commercial purpose, I.C. §§ 18-1507, 18-
1507A; and an enhancement for being a repeat sexual offender, I.C. § 19-2520G. As part of this
case, Davis filed a motion in limine to exclude evidence of his status as a registered sex offender,
which the district court granted.
        The two cases proceeded to separate jury trials. In the sex offender registration case, the
jury convicted Davis of failing to provide notice of his change of address. The district court
postponed sentencing on this case until after completion of the jury trial in the sexual misconduct
case.
        During the sexual misconduct trial, Davis moved for a mistrial after the prosecutor asked
one of the victims a question that resulted in the introduction of inadmissible evidence. The
district court denied Davis’s motion, and the jury was able to reach a verdict. The jury convicted
Davis of two counts of lewd conduct with a child; two counts of sexual battery of a minor; and
one count of possession of sexually exploitative materials. In both cases, the enhancements were
submitted to the court, which found Davis guilty.



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       The district court held a combined sentencing hearing for both cases. In the sexual
misconduct case, the district court imposed a unified sentence of thirty-five years, with fifteen
years determinate, for each of the lewd conduct and sexual battery convictions and a determinate
sentence of fifteen years for possession of sexually exploitative material. The court ordered
these sentences to be served consecutively. In the sex offender registration case, the district
court imposed a unified sentence of forty-five years, with twenty years determinate. The court
ordered this sentence to be served concurrently with the sentences imposed in the sexual
misconduct case. Davis timely appeals from the judgments entered in both cases.
                                                  II.
                                             ANALYSIS
       Davis raises two issues on appeal. He first argues the district court erred in denying the
motion for a mistrial in the sexual misconduct case. Davis next argues the district court abused
its discretion in imposing sentence on Davis’s sex offender registration conviction. We address
each issue in turn.
A.     Denial of Mistrial Motion
       Davis contends the district court erred when it denied the motion for a mistrial. In
criminal cases, motions for mistrial are governed by Idaho Criminal Rule 29.1. A mistrial may
be declared upon motion of the defendant, when there occurs during the trial an error or legal
defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the
defendant and deprives the defendant of a fair trial. I.C.R. 29.1(a). Our standard for reviewing a
district court’s denial of a motion for mistrial is well-established:
       [T]he question on appeal is not whether the trial judge reasonably exercised his
       discretion in light of circumstances existing when the mistrial motion was made.
       Rather, the question must be whether the event which precipitated the motion for
       mistrial represented reversible error when viewed in the context of the full record.
       Thus, where a motion for mistrial has been denied in a criminal case, the “abuse
       of discretion” standard is a misnomer. The standard, more accurately stated, is
       one of reversible error. Our focus is upon the continuing impact on the trial of the
       incident that triggered the mistrial motion. The trial judge’s refusal to declare a
       mistrial will be disturbed only if that incident, viewed retrospectively, constituted
       reversible error.
State v. Urquhart, 105 Idaho 92, 95, 665 P.3d 1102, 1105 (Ct. App. 1983). The error will be
deemed harmless if the appellate court is able to declare, beyond a reasonable doubt, that there



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was no reasonable possibility that the event complained of contributed to the conviction. State v.
Morgan, 144 Idaho 861, 863-64, 172 P.3d 1136, 1138-39 (Ct. App. 2007).
       Davis argues that the error or “legal defect” in the proceeding that triggered his mistrial
motion was the prosecutor’s misconduct of eliciting inadmissible testimony during its direct
examination of one of the victims, Z.B. During questioning, the prosecutor asked the witness:
       State:    And what was the subject of your contact with Idaho State Police?
       Z.B.:     It was about [Davis]. They wanted to ask us some questions.
       State:    Do you recall how many times you met with Idaho State Police?
       Z.B.:     A few.
       State:    So were all of those, or I guess the few times that you spoke with Idaho
                 State Police, was it always about [Davis]?
       Z.B.:     Yes.
       State:    Okay. And what? In what context?
       Z.B.:     What do you mean?
       State:    Like, what did they want to talk to you about [Davis] about?
       Z.B.:     About registered sex offender.
Davis objected immediately after Z.B. made the inadmissible statement and requested a side bar.
After reminding the court of its pretrial ruling that evidence of Davis’s prior convictions would
not be allowed, Davis immediately moved for a mistrial. The State acknowledges that the
statement given by Z.B. was inadmissible, but disagrees with Davis’s assertion that the testimony
resulted from prosecutorial misconduct. The State argues instead that the inadmissible testimony
arose inadvertently. Davis asserts no other grounds as the source of the court’s error in denying
Davis’s mistrial motion. Thus, our inquiry begins with, and is limited to, determining whether
the prosecutor in this case committed misconduct.
       When there has been a contemporaneous objection to purported prosecutorial
misconduct, we first determine factually if there was prosecutorial misconduct. State v. Field,
144 Idaho 559, 571, 165 P.3d 273, 285 (2007). It is the duty of the prosecutor to ensure that the
jury receives only competent evidence. State v. Severson, 147 Idaho 694, 715, 215 P.3d 414,
435 (2009). A prosecutor should not attempt to utilize his or her skill and ingenuity to skirt the
line of permissible behavior, because in so doing, he or she trespasses upon a defendant’s rights.
State v. Skunkcap, 157 Idaho 221, 234, 335 P.3d 561, 574 (2014).
       It is well-established that a prosecutor commits misconduct by deliberately eliciting or
attempting to elicit inadmissible testimony. Field, 144 Idaho at 572, 165 P.3d at 286. However,
Idaho’s appellate courts have also considered prosecutorial misconduct in situations where the
prosecutor did not deliberately elicit the inadmissible testimony. See, e.g., State v. Ellington, 151
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Idaho 53, 61, 253 P.3d 727, 735 (2011); State v. Erickson, 148 Idaho 679, 684, 227 P.3d 933,
938 (Ct. App. 2010).
       A prosecutor’s inquiry into a line of questioning that has a high probability of eliciting an
improper response from the witness may constitute misconduct. Ellington, 151 Idaho at 61, 253
P.3d at 735. In Ellington, the prosecutor examined an officer about whether he interviewed the
defendant at the time of arrest. Id. The officer responded, “I attempted to.” Id. at 59, 253 P.3d
at 733. In reviewing this claim of prosecutorial misconduct, the Court held that the response
carried an impermissible inference that the defendant had exercised his right to remain silent. Id.
at 61, 253 P.3d at 735. The Court not only held that the answer violated the defendant’s
constitutional rights, but also deemed it significant that the State could provide no justification
for why the line of questioning was relevant. Id. The Court held that the prosecutor committed
misconduct by inquiring into this line of questioning that had a high probability of eliciting an
improper response. Id.
       It may also constitute misconduct if a prosecutor phrases a question in such a way as to
infer an inadmissible answer. Erickson, 148 Idaho at 684, 227 P.3d at 938. In Erickson, the trial
court ruled that evidence of the defendant’s prior use or possession of drugs would be
inadmissible. Id. at 683, 227 P.3d at 937. During trial, the prosecutor asked a witness whether
he knew if there were any illegal substances found in the defendant’s vehicle. Id. This Court
held that the question itself informed the jury that drugs were found in the defendant’s vehicle.
Id. at 684, 227 P.3d at 938. Thus, the prosecutor’s conduct of phrasing the question in a manner
that inferred an inadmissible answer constituted misconduct. Id.
       Turning to this case, we are persuaded that the facts are readily distinguishable from the
instances of prosecutorial misconduct in both Ellington and Erickson. While laying foundation
for Z.B.’s testimony regarding his allegations of Davis’s sexual misconduct made to officers, the
prosecutor asked Z.B, “Like what did [the officers] want to talk to you about [Davis] about?”
Z.B. replied, “About registered sex offender.”
       This line of questioning by the State was for the purpose of laying foundation for the
conversation between Z.B. and the officers during the police interview.              Although the
prosecutor’s phrasing of the question was broad, we are unable to conclude that the question was
an attempt to elicit the inadmissible response that Z.B. gave. Following Davis’s objection, the
prosecutor again questioned Z.B., specifically inquiring into Z.B.’s knowledge of the video

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found in Davis’s possession. Unlike the line of questioning in Ellington, which had a high
probability of eliciting an improper response, we are not persuaded that inquiring into the topic
of conversation between Z.B. and officers had a high probability of eliciting the inadmissible
inference of Davis’s status as a registered sex offender.
       Moreover, unlike the misconduct in Erickson, where the prosecutor’s question carried an
inference of an inadmissible answer, here the prosecutor’s question carried no impermissible
inference. There is no evidence in the record that the prosecutor intended to skirt the court’s
pretrial ruling excluding evidence of Davis’s prior incarcerations. Additionally, there is no
evidence in the record that the prosecutor allowed multiple incidents of inadmissible testimony
to be introduced through careless questioning methods. We therefore conclude that the statement
offered by Z.B. does not evidence misconduct by the prosecutor.
       Because Davis’s argument on appeal was limited to prosecutorial misconduct as the basis
for the district court’s error in denying Davis’s mistrial motion, we need not address any other
grounds for finding error. See State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996).
Finding no prosecutorial misconduct, we need not address the second part of the inquiry--that the
purported misconduct constituted reversible error. Accordingly, the district court did not err in
denying Davis’s motion for a mistrial.
B.     Sentencing
       Finally, Davis argues the district court abused its discretion in imposing sentence on the
sex offender registration conviction. Davis does not challenge his sentences on the charges in
the sexual misconduct case. For the sex offender registration conviction, the district court
imposed a unified sentence of forty-five years, with twenty years determinate.
       An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,
the appellant has the burden to show that it is unreasonable and thus a clear abuse of discretion.
State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). In fashioning a sentence, a court
may consider evidence of a defendant’s criminal history, including unproven or previously
dismissed charges. See Idaho Criminal Rule 32(b)(2), (e)(1); State v. Campbell, 123 Idaho 922,
926, 854 P.2d 265, 269 (Ct. App. 1993).
       Davis contends that because the district court erred in denying Davis’s motion for a
mistrial in the sexual misconduct case, the court was not permitted to consider those convictions

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as aggravating factors in imposing its sentence for the sex offender registration case. Davis’s
assignment of error in the district court’s sentence hinges entirely upon this Court finding error
in the district court’s denial of Davis’s mistrial motion and the corresponding proposed remedy
of vacating those convictions. However, as discussed above, Davis did not meet his burden of
showing that the district court erred in denying the mistrial motion. Because we do not vacate
those convictions, we are unpersuaded by Davis’s contention that the district court abused its
discretion in considering those convictions as aggravating factors. Therefore, we uphold Davis’s
sentence for the failure to notify of address of sexual offender registration conviction.
                                                III.
                                         CONCLUSION
       The improper testimony of victim Z.B. introduced during trial did not constitute
prosecutorial misconduct. Thus, the district court did not err in denying Davis’s motion for a
mistrial. Moreover, the district court properly considered evidence of Davis’s convictions as
aggravating factors during sentencing.      Accordingly, Davis’s judgments of convictions and
sentences are affirmed.
       Judge MELANSON and Judge HUSKEY CONCUR.




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