                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 45989

STATE OF IDAHO                                       )
                                                     )
         Plaintiff-Respondent,                       )     Boise, September 2018 Term
                                                     )
v.
                                                     )     Filed: March 8, 2019
JEFFREY ALLEN JESKE,                                 )
                                                     )     Karel A. Lehrman, Clerk
         Defendant-Appellant.                        )
                                                     )


       Appeal from the District Court of the First Judicial District of the State of Idaho,
       Kootenai County. Cynthia K.C. Meyer, District Judge.

       The judgment of conviction is affirmed.

       State Appellate Public Defender’s office, Boise, for appellant. Brian R. Dickson argued.

       Idaho Attorney General’s office, Boise, for respondent. Theodore S. Tollefson argued.
                                      _____________________

STEGNER, Justice.
       Jeffrey Allen Jeske (Jeske) appeals from his conviction of felony driving under the
influence (DUI). Jeske contends the district court erred when it made two evidentiary rulings: the
first when it allowed the deputy prosecutor to comment on his refusal to consent to a blood draw
to test it for alcohol; the second regarding testimony of uncharged misconduct. Jeske also alleges
the district court erred when it allowed the State to amend the charges against him the morning
of the trial and in refusing to give a requested jury instruction. Finally, Jeske asserts that the
cumulative error doctrine requires his conviction to be vacated. For the reasons set forth in this
opinion, we reject Jeske’s arguments and affirm the district court’s judgment.
                   I. FACTUAL AND PROCEDURAL BACKGROUND
       Shortly before midnight on January 12, 2016, a Coeur d’Alene police officer, Caleb
Hutchison (Officer Hutchison), noticed a Dodge Dakota pickup traveling on Sherman Avenue
with only one working headlight. Officer Hutchison effected a traffic stop. The pickup was being
operated by Jeske. When Officer Hutchison got to the truck, Jeske’s response was delayed.

                                                 1
When asked for his driver’s license, Jeske told Officer Hutchison he did not have one. When
asked why not, he rubbed his thumb and forefinger together. 1 Jeske fumbled with other
paperwork, dropping the truck’s registration at one point.
         According to Officer Hutchison: Jeske’s speech was marked by slurring and mumbling;
Jeske’s eyes were glassy and he had what the officer described as a “thousand yard” stare; and,
he had a lethargic expression and was “excessively relaxed.”
         Because Officer Hutchison suspected Jeske of driving under the influence, he asked Jeske
to step out of the truck and perform field sobriety tests. Jeske ultimately complied with the
request to get out of the truck; however, he refused to comply with the field sobriety tests.
During his interaction with Jeske, Officer Hutchison purportedly noticed the slight odor of
alcohol 2 and that Jeske was unsteady on his feet. After continued refusal to perform the tests,
Jeske turned away from the officer, placed his hands behind his back, and asked the officer to
place him under arrest. At that time, the officer arrested Jeske and drove him to the Kootenai
County Jail.
         At the jail, Officer Hutchison asked Jeske to perform a breath alcohol test. Jeske refused.
After refusing to take the breath test, Officer Hutchison asked Jeske if he would submit to a
blood test. Jeske remained silent in response to the officer’s request. Upon receiving no response,
the officer obtained a search warrant from a magistrate judge. The warrant authorized a blood
draw, which was effected by a nurse at Kootenai Medical Center.
         On January 13, 2016, the State filed a criminal complaint, charging Jeske with felony
driving under the influence in violation of Idaho Code section 18-8004. 3 The Criminal
Complaint alleged that Jeske had been impaired while driving under the influence of alcohol. No
mention was made of the impending results of the blood draw Jeske had undergone earlier that

1
  The apparent implication was that he, Jeske, could not afford a driver’s license.
2
  In the probable cause affidavit submitted by Officer Hutchison, he wrote: “I detected the slight odor of an alcoholic
beverage on Jeske’s person.” However, the recording device used by him contradicts his affidavit. In the recording,
Officer Hutchison, in discussing the situation with another officer, stated: “He says he hasn’t been drinking and I
don’t get any odor . . . .”
3
  The charge was a felony because Jeske had two prior felony DUI convictions within the preceding fifteen years. In
fact, only one felony DUI in the previous fifteen years is sufficient to form the necessary predicate for a subsequent
DUI to be a felony. I.C. § 18-8005(9). In addition, the State sought a sentencing enhancement based on Idaho Code
section 19-2514 for the new charge, alleging this was Jeske’s third felony conviction and, as such, it exposed him to
additional imprisonment. If convicted of a third felony, Idaho Code section 19-2514 provides that an individual
subject to such enhancement “shall be sentenced to a term in the custody of the state board of correction which term
shall be for not less than five (5) years and said term may extend to life.”


                                                          2
same day. On February 5, 2016, Jeske waived his preliminary hearing. On February 8, 2016, the
State filed the original Information, charging Jeske with felony DUI under an impairment theory,
making no mention of the blood draw performed on January 13. The blood draw results were
received by the State on February 24, 2016. The test showed Jeske’s blood alcohol content to be
0.182, more than twice the per se limit of .08. The State shared the results of the test with Jeske’s
counsel the same day.
         On June 6, 2016, the morning of Jeske’s jury trial, the State moved to amend the
Criminal Information to include the per se theory, to allege Jeske had been operating a motor
vehicle with a blood alcohol content above the statutorily proscribed level of 0.08. 4 The district
court granted the motion to amend and the case proceeded to trial that same day.
         The jury found Jeske guilty of driving under the influence. In a proceeding following the
jury’s verdict, the judge concluded Jeske had been found guilty of felony DUI twice within the
preceding fifteen years, which rendered the DUI he committed on January 12, 2016, a felony. In
addition, the district court found Jeske’s sentence was also subject to statutory enhancement.
         Jeske filed a timely appeal. The Court of Appeals affirmed the district court’s judgment
and Jeske’s conviction. Jeske petitioned this Court for review which we granted.
                                 II. ISSUES PRESENTED ON APPEAL
         A.       Whether the district court violated Jeske’s Fourth Amendment rights when
                  it allowed evidence and argument regarding Jeske’s refusal to consent to a
                  blood draw.

         B.       Whether the district court abused its discretion by granting the State’s
                  motion to amend the Information on the morning of trial.

         C.       Whether the district court erred by refusing to give Jeske’s requested jury
                  instruction regarding impairment.

         D.       Whether the district court abused its discretion when it admitted evidence
                  of other uncharged misconduct.

         E.       Whether the cumulative error doctrine requires reversal of Jeske’s
                  conviction.


4
  The Amended Criminal Information alleged Jeske’s blood alcohol content was 0.0182. If Jeske’s blood alcohol
content had been 0.0182, he would not have been in violation of the per se limit of .08. While it is not clear from the
record how this error was corrected, Jury Instruction No. 2 correctly indicates that Jeske’s blood alcohol content was
0.182 when it was tested.


                                                          3
                                 III. STANDARD OF REVIEW
        “When reviewing a case on petition for review from the Court of Appeals this Court
gives due consideration to the decision reached by the Court of Appeals, but directly reviews the
decision of the trial court.” State v. Schmierer, 159 Idaho 768, 770, 367 P.3d 163, 165 (2016).
“Constitutional issues are pure questions of law over which this Court exercises free review.”
Estrada v. State, 143 Idaho 558, 561, 149 P.3d 833, 836 (2006). The decision to permit an
amendment to a charging document is a matter within the discretion of the trial court. State v.
Severson, 147 Idaho 694, 708, 215 P.3d 414, 428 (2009).
        When reviewing the trial court’s evidentiary rulings, this Court applies an abuse of
discretion standard. State v. Anderson, 162 Idaho 610, 614, 402 P.3d 1063, 1067 (2017). When
reviewing a lower court’s decision for an abuse of discretion, this Court must analyze “whether
the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer
boundaries of its discretion; (3) acted consistently with the legal standards applicable to the
specific choices available to it; and (4) reached its decision by the exercise of reason.”
Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018) (citing Hull v. Giesler,
163 Idaho 247, 250, 409 P.3d 827, 830 (2018)).
                                          IV. ANALYSIS
A. Any potential error in allowing evidence regarding Jeske’s refusal to allow a
   warrantless blood draw was harmless.

        During Jeske’s interaction with Officer Hutchison, he was asked to undergo the following
tests: field sobriety tests; a breath alcohol test; and, after having refused to undergo the first two,
a blood alcohol test. During the last, he remained silent.
        On the first day of trial, Jeske moved to have various portions of the officer’s video
recording redacted. Specifically, Jeske sought to have his refusal to engage in the tests sought by
Officer Hutchison redacted. The trial judge rejected his efforts stating, “the refusals to engage in
the field sobriety test [sic], the breathalyzer, and to submit to a blood draw goes to consciousness
of guilt.” (Italics added.)
        Jeske contends on appeal that his Fourth Amendment rights were violated when the trial
judge allowed testimony to be presented regarding his refusal to submit to a blood draw. Jeske
relies on State v. Christiansen, 144 Idaho 463, 470, 163 P.3d 1175, 1182 (2007) for the



                                                  4
proposition that a prosecutor may not constitutionally comment on a defendant’s invocation of
his Fourth Amendment rights.
       The State concedes that commenting on a defendant’s exercise of a constitutional right is
improper; however, the State maintains Jeske did not make a proper objection specific to the
blood draw and therefore whatever error was not preserved. As an alternative, the State argues
that if preserved the error was harmless.
       “This Court will not consider issues raised for the first time on appeal.” State v. Garcia-
Rodriguez, 162 Idaho 271, 275, 396 P.3d 700, 704 (2017) (citation omitted). However, if the
issue was argued to, or decided by, the district court it can form the basis for review by this
Court. State v. DuValt, 131 Idaho 550, 553, 961 P.2d 641, 644 (1998). “Th[is] Court recognizes a
distinction between issues not formally raised below and issues that ‘never surfaced’ below.”
Kolar v. Cassia Cty. Idaho, 142 Idaho 346, 354, 127 P.3d 962, 970 (2005).
       Here, even though Jeske’s counsel did not explicitly mention the blood draw at one point
in time, the judge specifically identified the blood draw in her ruling. The district court stated,
“the refusal . . . to submit to a blood draw goes to consciousness of guilt.” (Italics added.)
Consequently, the issue regarding Jeske’s refusal to submit to the blood draw was ruled on,
preserved, and will be addressed in this appeal.
       The State acknowledges that the trial judge specifically ruled on the propriety of
commenting on the blood draw; however, it next argues the judge’s ruling was superfluous and
unnecessary, citing State v. Abdullah, 158 Idaho 386, 482–83, 348 P.3d 1, 97–98 (2014). In
Abdullah, this Court held that because the defendant withdrew his motion, the district court’s
ruling was not necessary and did not form the basis of appeal. Id. This case is not analogous to
Abdullah. Here, defense counsel continued to argue against the admission of all three of Jeske’s
test refusals, including the blood test. Consequently, it cannot be said that the issue was
intentionally withdrawn. Thus, the judge’s ruling was neither superfluous nor unnecessary. The
issue was preserved and will therefore be analyzed.
       The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects against unreasonable seizures.” U.S. Const. amend. IV. A blood draw
is a search and seizure under the Fourth Amendment. State v. Wulff, 157 Idaho 416, 418, 337
P.3d 575, 577 (2014) (citing Schmerber v. California, 384 U.S. 757, 767 (1966); State v. Diaz,
144 Idaho 300, 302, 160 P.3d 739, 741 (2007)). The United States Supreme Court and this Court


                                                   5
have clarified that there is a constitutional right to refuse a warrantless blood draw. Birchfield v.
North Dakota, 136 S. Ct. 2160, 2184–85 (2016); Missouri v. McNeely, 569 U.S. 141, 165 (2013);
Wulff, 157 Idaho at 419, 337 P.3d at 578.
        The issue here is whether there is a constitutional violation if the prosecution introduces
evidence or comments on the refusal as evidence of consciousness of guilt. The State conceded
that it was improper to comment on Jeske’s refusal. Given the State’s concession, we assume,
without deciding, that there was a constitutional violation.
        Nonetheless, any error in allowing evidence to be introduced or argument made relating
to Jeske’s refusal of the warrantless blood draw was harmless. When this Court finds an error
that was objected to at trial, this Court reviews the error under the harmless error test. State v.
Perry, 150 Idaho 209, 222, 245 P.3d 961, 974 (2010). In Perry, this Court adopted the harmless
error test outlined in Chapman v. California, 386 U.S. 18 (1967). “Under the Chapman harmless
error analysis, where a constitutional violation occurs at trial, and is followed by a
contemporaneous objection, a reversal is necessitated, unless the State proves ‘beyond a
reasonable doubt that the error complained of did not contribute to the verdict obtained.’” Perry,
150 Idaho at 221, 245 P.3d at 973 (italics in original) (quoting Chapman, 386 U.S. at 24).
        Here, the State met its burden in proving the error did not contribute to the verdict
obtained. There was uncontradicted scientific evidence properly presented at trial that
demonstrated to the jury that Jeske had committed a DUI. The most compelling of which was
evidence that Jeske’s blood, following a legal blood draw, was 0.182, more than twice the per se
legal limit of 0.08. Inclusion of the refusal to submit to a blood draw to show a consciousness of
guilt is immaterial considering Jeske had a blood alcohol content of 0.182. Thus, any error was
harmless.
B. The district court did not err in allowing the State to amend the Criminal Information
on the first day of trial.
        On the morning of the trial, the State moved to amend the Criminal Information to
include the per se theory of DUI, alleging that Jeske had been operating a motor vehicle with a
blood alcohol content of .08 or above. 5 The district court granted the State’s motion. The district


5
  The language added to the Criminal Information was: “and/or in the alternative, did drive the above described
motor vehicle at the above described location, with an alcohol concentration of .08 percent or more, to-wit: .0182
[sic], as shown by an analysis of his blood . . . .”


                                                        6
court found that Jeske was not prejudiced because he had received the blood alcohol content test
results in February, roughly four months before trial. Further, the district court found that the per
se theory was not an additional charge, but rather an alternate way to prove the same offense.
       Jeske argues adding the per se theory the morning of trial altered the nature of the crime
charged, and thus, violated his constitutional rights in two ways. First, the amendment prejudiced
Jeske’s right to due process by depriving him of adequate notice of the manner in which he was
alleged to have violated the law and a meaningful opportunity to prepare a defense. He argues
that he should have been given sufficient notice of what theory the State planned to pursue.
Second, Jeske argues that the late amendment prejudiced his state constitutional and statutory
right to a preliminary hearing on those new facts and new theory of liability.
       The State argues that the two theories charged in the Amended Criminal Information, the
per se theory and the impairment theory, do not charge separate offenses. Rather, they are
alternate ways to prove the same offense. Further, the State argues that Jeske was not prejudiced
by the amendment because Jeske knew of the blood draw and was apprised of the results of the
blood draw the same day the State received that information.
       On appeal, the Court of Appeals, relying on a footnote in State v. Kralovec, 161 Idaho
569, 575 n.2, 388 P.3d 583, 589 n.2 (2017), held that Jeske failed to state any standard of review,
and such failure was fatal to Jeske’s claim regarding his objection to the amending of the
Information. The Court of Appeals seems to indicate that there is a formalistic requirement that
the standard of review be recited and the party claiming error attack a particular prong of that
standard of review.
       In Kralovec, this Court took issue with the fact that the appellant did not attempt to
explain how the district court abused its discretion. Id. at 575, 388 P.3d at 589. This Court
emphasized that when a party
       does not contend that the district court failed to perceive the issue as one of
       discretion, that the district court failed to act within the boundaries of this
       discretion and consistent with the legal standards applicable to the specific
       choices available to it or that the district court did not reach its decision by an
       exercise of reason,” such a conclusory argument is “fatally deficient” to the
       party’s case.




                                                 7
Id. at 575 n.2, 388 P.3d at 589 n.2 (quoting Cummings v. Stephens, 160 Idaho 847, 853, 380 P.3d
168, 174 (2016)).
       In Cummings, this Court held that the defendant did “not identify the applicable standard
of review, much less attempt to apply it.” Cumming, 160 Idaho at 853, 380 P.3d at 174. This
Court further noted,
       Cummings makes no attempt to address the matters we consider when evaluating
       a claimed abuse of discretion. He does not contend that the district court failed to
       perceive the issue as one of discretion, that the district court failed to act within
       the boundaries of this discretion and consistent with the legal standards applicable
       to the specific choices available to it or that the district court did not reach its
       decision by an exercise of reason.
Id. (italics added) (citations omitted).
       While one could glean from reading footnote 2 in Kralovec that we require a formalistic
recitation of the abuse of discretion standard in order to review a claim of abuse of discretion,
such a reading would be too technical. The real concern of this Court is whether an appellant’s
arguments are supported with relevant argument and authority. See Bach v. Bagley, 148 Idaho
784, 790, 229 P.3d 1146, 1152 (2010) (“We will not consider an issue not ‘supported by
argument and authority in the opening brief.’” (quoting Jorgensen v. Coppedge, 145 Idaho 524,
528, 181 P.3d 450, 454 (2008))); see also I.A.R. 35(a)(6) (“The argument shall contain the
contentions of the appellant with respect to the issues presented on appeal, the reasons therefor,
with citations to authorities, statutes and parts of the transcript and the record relied upon.”).
Therefore, this Court’s main concerns are the use of conclusory arguments, lack of authority to
support those arguments, or failure to make any attempt to address the factors this Court
considers. Consequently, Kralovec should not be read to require a formalistic recitation of the
standard of review.
       Although Jeske did not recite the standard of review in his opening brief, he clearly
argued regarding “whether the lower court acted within the boundaries of such discretion and
consistently with any legal standards applicable to the specific choices before it.” Kralovec, 161
Idaho at 574–75, 388 P.3d at 588–89. He identified the legal standard that was applicable to the
choices before the district court by citing I.C.R. 7(e), Idaho Code section 19-1420, and relevant
case law. Next, Jeske presented an analysis of how the above stated authority was not followed
by the district court. Therefore, his was not merely a conclusory argument, as was this Court’s
concern in Cummings and Kralovec. Rather, Jeske argued that the district court failed to comply

                                                8
with the second and third prongs of the abuse of discretion standard. Consequently, the
amendment issue will be decided on its merits.
       The decision to permit an amendment is a matter within the discretion of the trial court.
State v. Severson, 147 Idaho 694, 708, 215 P.3d 414, 428 (2009). A court may allow an
amendment of an information at any time before the prosecution rests, so long as doing so does
not prejudice the defendant’s substantial rights or charge the defendant with a different offense.
I.C.R. 7(e); see also I.C. § 19-1420; State v. O’Neill, 118 Idaho 244, 249, 796 P.2d 121, 126
(1990). An amendment that merely alleges additional means by which the defendant committed
the crime is permissible if it does not prejudice the defendant. Severson, 147 Idaho at 709, 215
P.3d at 429 (an amendment of an information to allege an alternative way to commit first-degree
murder did not violate the standards of due process).
       The trial court did not abuse its discretion in allowing the amendment of the Information.
First, the amendment did not charge Jeske with a new offense. Idaho’s DUI statute, as codified in
Idaho Code section 18-8004(1), has been interpreted as creating one crime with two alternate
ways of proving its violation. State v. Robinett, 141 Idaho 110, 112, 106 P.3d 436, 438 (2005)
(citing State v. Garrett, 119 Idaho 878, 881–82, 811 P.2d 488, 491–92 (1991)). Generally, a
statutory provision that lists alternative ways to prove commission of a crime does not create
separate offenses for purposes of amendment. State v. Palmer, 138 Idaho 931, 937, 71 P.3d
1078, 1084 (Ct. App. 2003).
       Both the original Information and the Amended Information charged Jeske with DUI.
When the State added the per se theory, it did not charge Jeske with a new and separate offense.
Rather, the amendment added an alternate method of proving the charge of DUI with which
Jeske had already been charged. Therefore, the district court correctly concluded that the per se
theory was not a separate offense.
       Jeske argues that the Amended Information is only permissible if it alleges the same facts
as the original. For this proposition, he relies on State v. O’Neill, 118 Idaho, 244, 249, 796 P.2d,
121, 126 (1990) (“[T]he facts alleged rather than the designation of the offense, control.”) In
O’Neill, the defendant was charged with violating Idaho Code section 18-1508, lewd conduct
with a minor. Id. at 122, 796 P.2d at 245. Later, the State amended the Information, changing the
violation to Idaho Code section 18-1506, sexual abuse of a minor, which is a lesser-included
crime of Idaho Code section 18-1508. Id. This Court held that because he pleaded guilty to the


                                                 9
same facts that the Amended Information charged, the amendment did not violate his
constitutional rights. Id. at 249, 796 P.2d at 126. Jeske’s reliance on O’Neill is inapposite
because that case dealt with an amendment that alleged a violation of a different statutory
provision, rather than the same provision. See Severson, 147 Idaho at 709–10 n.17, 215 P.3d at
429–30 n.17. Here, both indictments charged Jeske with a DUI. Thus, O’Neill is not apposite
precedent.
       Second, the amendment did not prejudice any of Jeske’s substantive rights. Factors
relevant to determining whether the defendant was prejudiced include whether the amendment
surprised the defendant, impaired the defendant’s ability to adequately prepare his defense,
necessitated extensive further preparation by the defendant, or subjected him to double jeopardy.
Severson, 147 Idaho at 709, 215 P.3d at 429.
       A defendant . . . cannot legitimately claim that he was surprised to his substantial
       prejudice by the absence in the information of specific details relating to an
       offense where those details are already known to the defendant or provided to the
       defendant by a means other than through the language in the information.

See State v. Dorsey, 139 Idaho 149, 151, 75 P.3d 203, 205 (Ct. App. 2003) (citing State v.
Gumm, 99 Idaho 549, 552, 585 P.2d 959, 962 (1978)).
       For example, in State v. LaMere, 103 Idaho 839, 841, 655 P.2d 46, 48 (1982), the
defendant was charged with rape under Idaho Code section 18-6101. The Information charged
him with forcible rape, however, there was no allegation regarding the victim’s age. Id. On the
day before the trial, the State amended the Information to include facts regarding the victim’s age
to allege a violation of statutory rape. Id. On appeal, this Court held that even though the
amendment was filed on the eve of trial, the defendant was not prejudiced because he was aware
of the victim’s age. Id. at 842, 655 P.2d at 49.
       Jeske was obviously aware his blood had been drawn. The parties discussed the potential
results of the blood draw on January 26, 2016, the date originally scheduled for his preliminary
hearing. The defense received the results of the blood draw on February 24, 2016, three months
prior to trial. The jury instructions requested by the State on May 26, 2016, included the per se
theory instructions. Thus, as in LaMere, there was no prejudice to Jeske because he was aware of
the facts underlying the Amended Information well in advance of trial.




                                                   10
       Jeske also argues that by allowing the Amended Information, the district court violated
his right to a preliminary hearing. In making this claim, Jeske relies on State v. Palmer, 138
Idaho 931, 936, 71 P.3d 1078, 1083 (Ct. App. 2003).
       A defendant has a right to a preliminary hearing if he is charged with a felony. State v.
Stewart, 149 Idaho 383, 387, 234 P.3d 707, 711 (2010); Idaho Const. art. I, § 8; I.C. § 19-804;
I.C.R. 5.1.
       Where an information is . . . amended charging a defendant with a crime of a
       greater degree or of a different nature than that for which he or she was held by
       the committing magistrate, the defendant is denied his or her constitutional and
       statutory right to a preliminary hearing . . . .

Palmer, 138 Idaho at 936, 71 P.3d at 1083.
       Jeske’s reliance on Palmer is misplaced. The Court of Appeals held in Palmer that
because the defendant was charged with the same offense, it was “unnecessary for a preliminary
hearing to be conducted on the basis of the amendment.” Id. at 937, 71 P.3d at 1084. As
previously noted, the per se theory and the impairment theory are alternate ways to prove the
crime of DUI. Consequently, the amendment did not charge Jeske with a different offense. After
discussions with the State regarding a potential resolution, and the pending lab results, Jeske
waived his preliminary hearing. Because he was not charged with a different offense, he was not
entitled to a second opportunity to have a preliminary hearing.
C. The district court did not err by refusing Jeske’s requested jury instruction regarding
impairment.
       Prior to trial, Jeske requested that the district court instruct the jury: “To prove that
someone was under the influence of alcohol . . . [t]he influence must be noticeable or perceptible
and impair a physical or mental function that relates to one’s ability to drive.” Near the close of
evidence, Jeske renewed his request and objected to the trial court’s proposed instruction. The
district court denied Jeske’s request to add his proffered language to the approved Idaho
Criminal Jury Instruction (ICJI). In overruling Jeske’s objection, the district court gave the
following ICJI instruction:
       To prove that someone was under the influence of alcohol, it is not necessary that
       any particular degree or state of intoxication be shown. Rather, the State must
       show that the defendant had consumed sufficient alcohol and/or intoxicating
       substances to influence or affect the defendant’s ability to drive the motor vehicle.
ICJI 1006.

                                                11
         Jeske argues that his requested jury instruction more “adequately, accurately, or clearly
state[s] the law.” The State argues that the jury was properly instructed and that Jeske’s
requested language is covered by the language in the instruction.
         A trial court presiding over a criminal case must instruct the jury on all matters of law
necessary for the jury’s information. Severson, 147 Idaho at 710, 215 P.3d at 430 (citing I.C. §
19-2132). Either party may present any written instruction and request it be given. I.C. § 19-
2132(a). If the instruction is “correct and pertinent[,]” it must be given. Id. An instruction is not
“correct and pertinent” if it is (1) an erroneous statement of the law; (2) adequately covered by
other instructions; or (3) “not supported by the facts of the case.” Severson, 147 Idaho at 710–11,
215 P.3d at 430–31 (quoting State v. Olsen, 103 Idaho 278, 285, 647 P.2d 734, 741 (1982)).
         The State, in its opposition, relies on the Court of Appeals’ decision in State v. Lewis, 126
Idaho 282, 284–85, 882 P.2d 449, 451–52 (Ct. App. 1994), which rejected the noticeable and
perceptible language as mandatory for a DUI jury instruction. Instead, Lewis held that the proper
instruction for DUI was stated in State v. Glanzman, 69 Idaho 46, 49, 202 P.2d 407, 408 (1949). 6
The State contends that under Lewis, Jeske’s requested instruction would be an erroneous
statement of law and would fail the first prong of the “correct and pertinent” test.
         However, Lewis is distinguishable from this case. First, there was no objection to the jury
instruction in Lewis. Id. at 284, 882 P.2d at 451. The test for a requested instruction is different
from an unobjected to instruction. Compare Severson, 147 Idaho at 710–11, 215 P.3d at 430–31
(three-prong test for requested jury instruction), with Perry, 150 Idaho at 221, 245 P.3d at 973
(fundamental error test for unobjected-to jury instruction).
         Also, the Court of Appeals recognized that the noticeable and perceptible language was
not mandatory, but did not hold that noticeable and perceptible was an erroneous statement of
law in all cases. Lewis, 126 Idaho at 285, 882 P.2d at 452. This is further demonstrated by that
court’s later decision in State v. Schmoll, 144 Idaho 800, 804, 172 P.3d 555, 559 (Ct. App. 2007),
defining “under the influence” to “include[ ] impairment of driving ability to the slightest degree;
the impairment must be noticeable or perceptible, but does not need to rise to a level where the
defendant is incapable of driving safely or prudently.” Id. (citing State v. Andrus, 118 Idaho 711,

6
 The instruction in Glanzman stated, “To constitute [a DUI], it is not necessary that the driver of the motor vehicle
be shown to have been in any particular degree or state of intoxication, but only that such driver at the time charged
had consumed intoxicating liquor to such an extent as to influence or affect his driving of the motor vehicle.”


                                                         12
714–15, 800 P.2d 107, 110–11 (Ct. App. 1990)). The fact that a particular instruction is not
required in every case does not mean that it is an erroneous statement of law in all cases. See
Stephen M. Rice, Conspicuous Logic: Using the Logical Fallacy of Affirming the Consequent as
a Litigation Tool, 14 BARRY L. REV. 1, 10–12 (2010). Therefore, the noticeable and perceptible
language satisfies the first prong, as it is not an “erroneous statement of the law.”
       However, Jeske likely does not satisfy the second prong, because the given instruction
adequately covers the requested instruction. The impairment instruction given by the district
court instructed that “the State must show that the defendant had consumed sufficient alcohol
and/or intoxicating substances to influence or affect the defendant’s ability to drive the motor
vehicle.” Thus, the State had to present evidence that alcohol was influencing or affecting
Jeske’s ability to drive. This would include the officer’s testimony about his observations and the
video showing Jeske’s behavior. Any observations or video evidence would have been
“noticeable or perceptible.” Consequently, the proposed instruction is redundant and adequately
covered by the instructions given. Therefore, there was no error in the district court’s refusal to
give Jeske’s requested jury instruction.
D. The district court erred in admitting evidence of Jeske’s lack of a driver’s license, but
the error was harmless.
       During trial, Jeske moved to have a portion of the video regarding his lack of a driver’s
license redacted, arguing it was uncharged misconduct and would be prejudicial to him. (While
Jeske’s counsel did not specifically refer to Rule 404(b) of the Idaho Rules of Evidence, referring
to uncharged misconduct and prejudice to the defendant necessarily implicates Rule 404(b),
I.R.E.). When asked about his lack of a driver’s license, Jeske made the motion of rubbing his
fingers and thumb together, suggesting he did not have a license because he could not afford one.
The State argued that identification of the defendant was an issue in the case, that the assertion
was not prejudicial, and that it was “intertwined” with other conversations, making it difficult to
redact. The district court denied Jeske’s motion. The district court stated,
       It appears that the other issues with respect to the question about the driver’s
       license, the response is not prejudicial. Mr. Jeske did not give a reason, such as he
       had a suspended driver’s license, you know, for other reasons, and I do find that it
       is sufficiently intertwined with other issues that it would be—that it also goes to
       reasonable suspicion and probable cause.
       On appeal, Jeske argues the district court erred in admitting the evidence under the
doctrine of res gestae and that the challenged portion should have instead been analyzed under
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I.R.E. 404(b). The State argues that the officer’s conversation with Jeske regarding the driver’s
license is relevant to Jeske’s behavior during the stop and whether he was impaired.
        This Court recently rejected res gestae as a standard for admitting evidence and
concluded that evidence is only admissible if it meets the criteria established by the Idaho Rules
of Evidence. See Kralovec, 161 Idaho at 574, 388 P.3d at 588. Res gestae
        has been an exception to the general prohibition against use of other misconduct
        evidence. In this context, res gestae refers to other acts that occur during the
        commission of or in close temporal proximity to the charged offense which must
        be described to “complete the story of the crime on trial by placing it in the
        context of nearby and nearly contemporaneous happenings.”
State v. Blackstead, 126 Idaho 14, 17–18, 878 P.2d 188, 191–92 (Ct. App. 1994) (citations
omitted).
        It is not clear what test the district court used to determine the admissibility of the lack of
a driver’s license. However, the court’s use of the phrase “intertwined with other issues”
suggests that the district court used an improper res gestae analysis.
        It is of note that the district court did not have the benefit of this Court’s decision in
Kralovec when it made its ruling, as Kralovec was released nearly seven months after the district
court’s decision. This Court has held that “appellate courts should decide and dispose of the case
in accordance with the law existing at the time of its own decision.” Davis v. Prof’l Bus. Servs.,
Inc., 109 Idaho 810, 818, 712 P.2d 511, 519 (1985); see also Shabinaw v. Brown, 125 Idaho 705,
708, 874 P.2d 516, 519 (1994). Generally, this would require reversal for the district court to
reconsider its decision in light of the new law. Davis, 109 Idaho at 818, 712 P.2d at 519.
However, in this case, any potential error under res gestae was harmless.
        Under current case law, the district court would have committed error in admitting the
evidence under a theory of res gestae. As evidence can no longer be admitted under res gestae,
any admission of the evidence as res gestae would be improper.
However, as noted previously, there was overwhelming, uncontradicted scientific evidence
demonstrating that Jeske’s blood alcohol content was 0.182, more than twice the per se legal
limit of 0.08. Thus, any inclusion of Jeske’s lack of a driver’s license was harmless. 7



7
 It should also be noted that if the State had charged Jeske with driving without privileges, which was clearly an
option, and the misdemeanor had been joined for trial with the DUI charge, the evidence would have been


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E. The cumulative error doctrine does not require reversal in Jeske’s case.
        Jeske next argues that even if this Court determines that each of the errors discussed was
harmless by itself, this Court should still vacate Jeske’s conviction under the cumulative error
doctrine. The State argues that Jeske showed no error, and thus, cannot claim cumulative error.
        “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.” Perry, 150 Idaho at 230, 245 P.3d at 982
(citations omitted). “The presence of errors, however, does not by itself require the reversal of a
conviction, since under due process a defendant is entitled to a fair trial, not an error-free trial.”
State v. Moore, 131 Idaho 814, 823, 965 P.2d 174, 183 (1998) (citing Bruton v. United States,
391 U.S. 123, 135 (1968)).
        Here, the district court erred in allowing comments on Jeske’s refusal to allow a
warrantless blood draw and by allowing evidence of uncharged misconduct in relation to his lack
of a driver’s license. However, the aggregate effect of these errors, in the light of the evidence
properly presented at trial, is not of such magnitude that Jeske was denied a fair trial. See State v.
Johnson, 163 Idaho 412, 428, 414 P.3d 234, 250 (2018). Therefore, the cumulative error doctrine
does not require reversal of Jeske’s conviction.
                                                 V. CONCLUSION
        For the reasons articulated in this opinion, the judgment of conviction is affirmed.
        Chief Justice BURDICK, Justices HORTON, BRODY and BEVAN, CONCUR.




admissible. While this scenario did not play out in this case, it supports the conclusion that the admission of the
evidence was harmless.


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