               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41894

STATE OF IDAHO,                                 )    2015 Unpublished Opinion No. 516
                                                )
       Plaintiff-Respondent,                    )    Filed: June 11, 2015
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
MELINDA DENISE GRAY,                            )    THIS IS AN UNPUBLISHED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,
       Canyon County. Hon. Molly J. Huskey, District Judge.

       Judgment of conviction for felony possession of a controlled substance and
       misdemeanor possession of drug paraphernalia and driving under the
       influence, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       Melinda Denise Gray appeals from her judgment of conviction for felony possession of a
controlled substance and misdemeanor possession of drug paraphernalia and driving under the
influence. Gray argues that the state engaged in prosecutorial misconduct by eliciting testimony
from one of the arresting officers regarding his conclusion as to an element of one of the charged
crimes and his opinion of Gray’s veracity. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       An officer stopped Gray after observing her commit several traffic violations and arrested
her for driving under the influence (DUI). During the search incident to arrest, the officer


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discovered a small matchbox containing a few of Gray’s prescription pills and a baggie of a
white, powdery substance, which was later verified as methamphetamine. After a drug dog
alerted on Gray’s motorcycle, a second officer discovered an eyeglass case containing a used
glass pipe. Gray denied ownership or knowledge of both the methamphetamine and pipe. She
was charged with felony possession of a controlled substance, I.C. § 37-2732(c)(1); possession
of drug paraphernalia, I.C. § 37-2734A; and DUI, I.C. § 18-8004. 1 Gray proceeded to trial and a
jury found her guilty of all counts. The district court withheld judgment and placed Gray on
probation for three years. Gray appeals.
                                                   II.
                                              ANALYSIS
A.      Prosecutorial Misconduct
        Gray contends that the state engaged in prosecutorial misconduct by eliciting certain
improper testimony from the second officer at trial. She argues that the state elicited opinion
testimony from the officer regarding Gray’s veracity and her intent to use the pipe to smoke
methamphetamine. 2 Although our system of criminal justice is adversarial in nature and the
prosecutor is expected to be diligent and leave no stone unturned, he or she is nevertheless
expected and required to be fair.        State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285
(2007). However, in reviewing allegations of prosecutorial misconduct, we are cognizant of the
realities of trial. Id. Indeed, a fair trial does not mean a perfect trial. Id.
        Gray made no contemporaneous objection at trial to either alleged instance of
misconduct. 3 However, she argues that each instance independently constitutes fundamental


1
        Gray was also charged with two counts of misdemeanor possession of a controlled
substance for the pills, which were dismissed before trial after Gray provided a valid
prescription.
2
        Gray also contends that the state committed prosecutorial misconduct by eliciting
testimony regarding Gray’s guilt. However, Gray offers no cogent argument or relevant
authority to support this claim on appeal. A party waives an issue on appeal if either authority or
argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996).
Accordingly, we will not discuss this issue further.
3
      Gray attempts to clothe both alleged errors with objections to different questions and
answers, both of which occurred immediately prior to the challenged lines of questioning. To

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error.   Generally, claims of error that were not preserved by objection below will not be
considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126
(1992). However, Idaho appellate courts may still consider an unpreserved claim of error if the
error resulted in a deprivation of the Fourteenth Amendment due process right to a fair trial in a
fair tribunal, thereby rising to the level of fundamental error. State v. Perry, 150 Idaho 209, 224,
245 P.3d 961, 976 (2010). In Perry, the Idaho Supreme Court clarified the fundamental error
doctrine, including its application to allegations of prosecutorial misconduct. It held that an
appellate court should reverse based on unpreserved error only when the defendant persuades the
court that: (1) the alleged error violates one or more of the defendant’s unwaived constitutional
rights; (2) the alleged error is clear or obvious without the need for reference to any additional
information not contained in the appellate record; and (3) there is a reasonable possibility that the
alleged error affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978.
         In order to meet the first prong of the Perry fundamental error test, Gray had to establish
that the alleged prosecutorial misconduct violated one or more of her unwaived constitutional
rights. In State v. Jackson, 151 Idaho 376, 256 P.3d 784 (Ct. App. 2011), we addressed whether
eliciting testimony from one witness vouching for the truthfulness of another violated one or
more of a defendant’s unwaived constitutional rights. After reviewing the cases that the Perry
Court used to support its conclusion that eliciting testimony from one witness vouching for the
truthfulness of another was prosecutorial misconduct, we concluded that such misconduct was
based on evidentiary concerns, not constitutional principles. Id. at 380, 256 P.3d at 788. We
subsequently held in State v. Herrera, 152 Idaho 24, 266 P.3d 499 (Ct. App. 2011), that the



preserve an objection for appellate review, the specific ground for the objection must be clearly
stated or must be readily apparent from the context. I.R.E. 103(a)(1); State v. Sheahan, 139
Idaho 267, 277, 77 P.3d 956, 966 (2003). Gray’s objection prior to the questioning regarding the
officer’s opinion of her truthfulness was in reference to a question about whether the officer had
formed an opinion on the ultimate legal question of whether Gray possessed the
methamphetamine. Additionally, Gray’s objection prior to the other challenged questioning was
in reference to the officer’s opinion testimony as to the specific intent element of possession of
drug paraphernalia. The question following that objection addressed a different issue. Thus,
neither objection was applicable to either line of questioning, so Gray must show that the state’s
conduct constituted fundamental error.



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proposition enunciated in Jackson was not limited to eliciting vouching testimony. Instead,
eliciting any testimony from one witness regarding the truthfulness--or lack thereof--of another
witness does not constitute a constitutional violation allowing for fundamental error review.
Herrera, 152 Idaho at 33-34, 266 P.3d at 508-09. Gray’s claim of error in the eliciting of
testimony from the officer regarding Gray’s truthfulness is an evidentiary issue that does not
implicate a constitutional right. 4    Accordingly, it does not present an issue warranting
fundamental error review.
       Gray also contends that eliciting testimony from the officer regarding his opinion that the
glass pipe was intended to be used to smoke methamphetamine violated Gray’s due process right
to a fair trial and that the first prong of Perry is thereby satisfied. We disagree. The substance of
this claimed error is that the state introduced inadmissible opinion testimony regarding the
ultimate legal question before the jury. Where the asserted error relates not to infringement upon
a constitutional right, but to violation of a rule or statute, the fundamental error doctrine is not
implicated. State v. Garcia, 156 Idaho 352, 356, 326 P.3d 354, 358 (Ct. App. 2014); Jackson,
151 Idaho at 380, 256 P.3d at 788. Indeed, if the presentation of evidence and associated
argument in violation of an evidentiary rule satisfied the constitutional violation element of
Perry because all evidentiary error implicates due process, the first prong of the Perry standard
would be virtually eviscerated and the limits that Perry places on fundamental error review
would be undermined. Garcia, 156 Idaho at 356-57, 326 P.3d at 358-59; Jackson, 151 Idaho at
379-80, 256 P.3d at 787-88; see also State v. Norton, 151 Idaho 176, 184-87, 254 P.3d 77, 85-88
(Ct. App. 2011). As with Gray’s other claim of prosecutorial misconduct, the allegedly improper
testimony here implicated evidentiary rules, not constitutional rights. Because Gray cannot show
that the alleged misconduct violated one or more of her unwaived constitutional rights,
fundamental error review does not apply to this claim of prosecutorial misconduct either.




4
        We can conceive of a situation in which prosecutorial misconduct in the improper
introduction of inadmissible evidence could reach such an extreme and egregiously prejudicial
level as to constitute a violation of due process through the deprivation of a fair trial, thereby
warranting fundamental error analysis. However, that is not the case here.

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B.     Cumulative Error
       Gray asserts that the cumulative effect of the asserted errors deprived her of a fair trial,
necessitating a reversal of her conviction. It is well established that alleged errors at trial not
followed by a contemporaneous objection will not be considered under the cumulative error
doctrine unless said errors are found to pass the threshold analysis under our fundamental error
doctrine. Perry, 150 Idaho at 230, 245 P.3d at 982. Gray has failed to show that either alleged
instance of prosecutorial misconduct meets the threshold fundamental error analysis. As a result,
the cumulative error doctrine does not apply.
                                                III.
                                        CONCLUSION
       The prosecutor’s questioning of the second officer regarding his opinion of whether Gray
was lying and his opinion of whether the glass pipe was drug paraphernalia, neither of which
Gray made a contemporaneous objection to, did not violate one or more of Gray’s unwaived
constitutional rights, precluding fundamental error analysis. Because Gray was unable to make
the threshold showing for fundamental error analysis, the cumulative error doctrine does not
apply. Accordingly, Gray’s judgment of conviction for DUI, possession of drug paraphernalia,
and felony possession of a controlled substance is affirmed.
       Judge LANSING and Judge GRATTON, CONCUR.




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