               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43106

STATE OF IDAHO,                                )   2016 Unpublished Opinion No. 707
                                               )
       Plaintiff-Respondent,                   )   Filed: September 28, 2016
                                               )
v.                                             )   Stephen W. Kenyon, Clerk
                                               )
JOHN HARLAN HOY,                               )   THIS IS AN UNPUBLISHED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. Jason D. Scott, District Judge.

       Judgment of conviction for felony eluding a peace officer, misdemeanor leaving
       the scene of an accident, misdemeanor driving without privileges, misdemeanor
       resisting or obstructing officers, and misdemeanor inattentive driving, affirmed.

       Eric D. Fredericksen, Interim State Appellate Public Defender; Maya P. Waldron,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       John Harlan Hoy was charged with felony eluding a peace officer, I.C. § 49-1404;
misdemeanor leaving the scene of an accident, I.C. § 49-1301; misdemeanor driving without
privileges, I.C. § 18-8001(3); misdemeanor resisting or obstructing officers, I.C. § 18-705; and
misdemeanor inattentive driving, I.C. § 49-1401(3). During closing argument at Hoy’s trial, the
prosecutor referred to the jury’s instructions defining the elements of each crime with which Hoy
was charged and detailed the evidence presented at trial to prove those elements. The prosecutor
concluded his argument by asking the jury to find Hoy guilty, particularly of eluding a peace
officer, because the State proved beyond a reasonable doubt that Hoy drove his vehicle in a
reckless manner likely to endanger other people--an element of eluding a peace officer. The


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prosecutor then said, “That’s what we’re really here for is to protect the public, and that’s why he
is here because he put the public at risk.” Hoy did not object to this comment. The jury found
Hoy guilty. Hoy appeals.
        Hoy made no contemporaneous objection to the prosecutor’s comment. In State v.
Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court clarified the fundamental
error doctrine as it applies to allegations of prosecutorial misconduct. If the alleged misconduct
was not followed by a contemporaneous objection, an appellate court should reverse 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 obvious without the need for reference to any
additional information not contained in the appellate record; and (3) affected the outcome of the
trial proceedings. Id. at 226, 245 P.3d at 978.
       Hoy asserts that the prosecutor committed misconduct sufficient to violate Hoy’s
constitutional right to a fair trial. Hoy contends that a comment made by the prosecutor during
closing argument was fundamental error.           Specifically, Hoy argues that the prosecutor’s
comment, “That’s what we’re really here for is to protect the public,” impermissibly appealed to
the emotion, passion, or prejudice of the jury and that it raised the specter of possible future
criminality as a reason for the jury to return a guilty verdict. The prosecutor’s comment was
made immediately after he stated that the State proved that the eluding was in a reckless manner
likely to endanger other people--an element of the crime. See I.C. § 49-1404(2)(c).
       Closing argument serves to sharpen and clarify the issues for resolution by the trier of
fact in a criminal case. State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007).
Its purpose is to enlighten the jury and to help the jurors remember and interpret the evidence.
Id.; State v. Reynolds, 120 Idaho 445, 450, 816 P.2d 1002, 1007 (Ct. App. 1991). Both sides
have traditionally been afforded considerable latitude in closing argument to the jury and are
entitled to discuss fully, from their respective standpoints, the evidence and the inferences to be
drawn therefrom. State v. Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969 (2003); Phillips, 144
Idaho at 86, 156 P.3d at 587. Appeals to emotion, passion, or prejudice of the jury through the
use of inflammatory tactics are impermissible. Phillips, 144 Idaho at 87, 156 P.3d at 588. See
also State v. Raudebaugh, 124 Idaho 758, 769, 864 P.2d 596, 607 (1993); State v. Pecor, 132
Idaho 359, 367, 972 P.2d 737, 745 (Ct. App. 1998).


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        Hoy contends that the prosecutor’s comment appealed to the jury’s emotion, passion, or
prejudice by suggesting that it was the jury’s job to protect the public and a conviction was
necessary to accomplish that end. Hoy also contends that the prosecutor’s comment implied that
the jury had to find Hoy guilty to prevent him from putting the public at risk. We disagree. The
comment, taken in isolation, could arguably be interpreted as asking the jury to prevent Hoy
from again putting the public at risk. However, the context in which the prosecutor made his
comment shows that he asked the jury to find Hoy guilty of eluding because the evidence
indicated Hoy drove in a reckless manner to avoid police apprehension. Because driving in a
manner likely to endanger another person is an element of felony eluding, it was not improper
for the prosecutor to suggest the jury find Hoy guilty based on the State’s evidence.
Accordingly, the prosecutor’s comment did not violate Hoy’s constitutional right to a fair trial
and did not amount to fundamental error.
       Hoy has not met his burden of showing that the prosecutor committed misconduct
amounting to fundamental error. Accordingly, Hoy’s judgment of conviction for eluding a peace
officer, leaving the scene of an accident, driving without privileges, resisting or obstructing
officers, and inattentive driving is affirmed.
       Judge GRATTON and Judge HUSKEY, CONCUR.




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