               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 32866

STATE OF IDAHO,                                  )     2010 Unpublished Opinion No. 493
                                                 )
       Plaintiff-Respondent,                     )     Filed: June 3, 2010
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
STEVEN RAY ROOT,                                 )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
       Defendant-Appellant.                      )     BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. John P. Luster, District Judge.

       Judgment of conviction for possession of methamphetamine with intent to deliver,
       possession of a controlled substance, and possession of drug paraphernalia,
       affirmed.

       Molly J. Huskey, State Appellate Public Defender; Sarah E. Tompkins, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Elizabeth A. Koeckeritz, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Steven Ray Root appeals from his judgment of conviction entered upon a jury verdict
finding him guilty of possession of methamphetamine with intent to deliver, Idaho Code § 37-
2732(a), possession of a controlled substance, I.C. § 37-2732(c), and possession of drug
paraphernalia, I.C. § 37-2734A.
                                                I.
                       FACTS AND PROCEDURAL BACKGROUND
       On October 25, 2004, Sergeant Barry Alleman pulled Root over for failure to stop at a
posted stop sign. Alleman asked Root for his identification, registration, and proof of insurance.
Root responded that he had lost his wallet and did not have any identification. Root did not
provide any registration or proof of insurance. Alleman noticed a rifle in a gun rack behind
Root. Alleman asked Root to step out of the vehicle and inquired as to whether there were any


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other weapons in the vehicle, to which Root responded that there were none. After Root exited
the vehicle, Alleman noticed the handle of a knife sticking up between the driver’s and
passenger’s seats, which he secured.
       Root had a female passenger in the vehicle, who was also asked to provide identification.
The passenger moved some clothes in order to retrieve some identification from her purse and, as
she did so, Alleman noticed a semi-automatic handgun underneath the seat. The passenger was
asked to exit the vehicle. As soon as the passenger was away from the vehicle, Alleman asked
Root whether everything in the vehicle belonged to him, and he responded affirmatively.
Alleman removed the handgun from the vehicle and disarmed it. The passenger was ultimately
allowed to leave.
       Due to the fact that Root could not produce any identification and that Root had lied
about not having any other weapons, Alleman placed Root under arrest for failure to carry a
driver’s license. Root was handcuffed and placed in the back of Alleman’s patrol car. Deputy
Chris Kerzman, who had responded as a cover officer, then conducted a search of the vehicle.
Kerzman located, underneath some clothing, a black case with contraband inside, including drug
paraphernalia, three baggies containing a white crystalline substance, which later tested positive
as methamphetamine, and a baggy containing a green leafy substance, which later tested positive
as marijuana.
       Root was ultimately charged with driving without a license, possession of
methamphetamine with intent to deliver, possession of marijuana, and possession of drug
paraphernalia. The State dismissed the driving without a license charge. A jury found Root
guilty on all three remaining counts. Root was sentenced to ninety days, with credit for ninety
days served, for the offenses of possession of drug paraphernalia and possession of marijuana.
On March 15, 2006, the district court imposed a unified sentence of eight years, three years
determinate, for the offense of possession of methamphetamine with intent to deliver, and
retained jurisdiction. The court ultimately placed Root on probation. Root appeals only with
respect to his judgment of conviction and sentence on the charge of possession of
methamphetamine with intent to deliver.




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                                                II.
                                           ANALYSIS
A.     Hearing
       Root asserts that he repeatedly sought a hearing from the district court in order to
establish good cause, pursuant to Idaho Criminal Rule 12(d), for his failure to timely file a
motion to suppress and that the district court abused its discretion when it failed to hold a
hearing. The State argues that because Root never filed a motion to show cause for relief from
his failure to timely file a motion to suppress, he did not adequately raise the issue before the
district court. The State contends that because a motion was never filed, the district court never
ruled on whether Root should be granted a hearing and, as such, there is no adverse ruling from
which to base an assignment of error.
       Motions to suppress evidence on grounds that it was illegally obtained must be raised
prior to trial. Idaho Criminal Rule 12(b). Specific time frames are set forth in I.C.R. 12(d) as
follows:
                Motions pursuant to Rule 12(b) must be filed within twenty-eight (28)
       days after the entry of a plea of not guilty or seven (7) days before trial whichever
       is earlier. In felony cases, such motions must be brought on for hearing within
       fourteen (14) days after filing or forty-eight (48) hours before trial whichever is
       earlier. The court in its discretion may shorten or enlarge the time provided
       herein, and for good cause shown, or excusable neglect, may relieve a party of
       failure to comply with this rule.

The failure to raise defenses or objections or make requests that must be raised prior to trial,
subject to any extensions granted by the court or times set by the court pursuant to I.C.R. 12(d),
constitutes a waiver. I.C.R. 12(f). The court may, for good cause shown, grant relief from the
waiver. I.C.R. 12(f).
       In this case, Root entered his plea of not guilty on January 28, 2005. On July 21, 2005,
Root filed a motion to continue based upon three grounds, the admissibility of the State’s
proposed I.R.E. 404(b) evidence, pending discovery issues relative to video or audio evidence,
and suppression of the State’s evidence as a result of an illegal arrest. Root asserted that the
police reports did not reveal why the State’s evidence should not be suppressed as a result of an
illegal arrest. Root acknowledged, however, that the time to file a motion to suppress pursuant to
I.C.R. 12(d) had expired. As such, he requested a hearing “to determine whether cause exists to
grant relief from any waiver” pursuant to I.C.R. 12(f).

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       Also on July 21, 2005, a hearing was held and Root essentially reiterated the issues set
forth in his motion to continue. The State indicated that it was concerned about Root failing to
appear for scheduled hearings, but did not object to a short continuance. The district court
vacated the trial date but set a hearing for July 25, 2005, in order to verify that Root was still in
communication with his attorney and also to allow defense counsel the opportunity to ask
Deputy Alleman some “threshold” questions regarding his reasons for arresting Root, as well as
whether there existed any “additional items of evidence that were of concern for the defense.”
The court noted that “it would be probably helpful for any future motions concerning leave to
pursue a motion to suppress.”
       On July 25, 2005, the court acknowledged that Root was present thereby alleviating the
State’s concern. The court also noted that Deputy Alleman was not present. The prosecutor
indicated that he was able to speak with Deputy Alleman over the phone regarding the nature of
the stop and why he took Root into custody. The conversation was recorded, and a tape of that
conversation was provided to defense counsel. The court noted that the tape may or may not
“end that issue” but that it would give defense counsel some information to work with. The
court then granted the continuance.
       Thereafter, the State requested a continuance because the arresting officer was
unavailable. The court granted the continuance and set the trial date for November 21, 2005. On
November 18, 2005, the date scheduled for the pre-trial conference, Root requested another
continuance. At that hearing, Root’s trial counsel represented that the previous hearing had been
scheduled to address his motion to suppress, but that the arresting officer failed to appear. The
court commented that the court file reflected that a motion to suppress had never been filed. The
court summarized the prior proceedings and indicated that it had left the scheduled trial date in
place in order for Root to make an appearance, and also to allow defense counsel the opportunity
to ask Deputy Alleman some questions “to see if there was any information that was being
sought by the defense.” The court noted that Deputy Alleman was not present because he was on
administrative leave and thus it was “left to counsel’s own devices to ascertain whether or not
this information was or was not available in the form of a tape.”
       Responding to the State’s objection that Root had the police reports and could have
timely filed a motion to suppress, Root’s trial counsel referenced his motion to continue, wherein
he requested a hearing “to determine whether cause exists to grant relief from any waiver.”


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Counsel argued that he was told that there were no audio or video tapes of the arrest, but that he
had obtained, on his own initiative, dispatch tapes, which he asserted were exculpatory in nature.
He asserted that the failure of the State to produce exculpatory evidence did constitute cause for
the court to consider the admissibility of the State’s evidence. Counsel stated:
               I would move to continue and vacate the trial setting in this matter. Ask
       the court to hold a hearing to determine whether waiver has taken place and to
       offer evidence that this case, the genesis of this case is in violation of the Fourth
       Amendment to the United States Constitution in that there was an illegal arrest.
               The dispatch tapes that I have heard do reveal that the officer had, there
       was no question as to Mr. Root’s identity. He was arrested ostensibly on a 49-
       316, failure to carry a driver’s license.
               The officer, as the dispatch tapes revealed, received from dispatch a
       physical description of Mr. Root and, Judge, that was never revealed by the state.
       Cause exists, the court should consider the admissibility of the state’s evidence
       before we do go to trial.

Thereafter, the court indicated that it would review the proceedings and make a formal
determination. The court explicitly stated that it would review the file and “give consideration to
the motion that’s in front of the court” before making a “final determination on the motion to
continue.”
       The court subsequently issued a written order denying Root’s motion to continue. Noting
that Root’s reasons for seeking a continuance were similar to those previously argued, the court
acknowledged Root’s desire to ascertain whether or not audio or video tapes did exist and
whether such evidence was exculpatory. The court concluded that further delay was unnecessary
when the court could simply issue a directive resolving the question. Thus, the court ordered the
prosecuting attorney to determine whether any tapes were made and, if they did exist, to make
them available to defense counsel for inspection. The court then addressed Root’s request for a
continuance for the purpose of pursuing a motion to suppress and concluded that a motion to
suppress would be untimely based upon the Idaho Criminal Rules. Thus, the court denied Root’s
motion to continue.
       Root does not challenge the district court’s denial of his motion to continue. Rather, he
contends that the district court erred in failing to provide him “with an opportunity to
demonstrate good cause for his untimely filed motion to suppress” and that this error is
“particularly troublesome” given recent developments in the case law with respect to searches
incident to arrest, specifically the United States Supreme Court’s recent opinion in Arizona v.


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Gant, ___ U.S. ___, 129 S.Ct. 1710 (2009). However, Root does not present any argument that
good cause existed to relieve him of the time requirements set forth in I.C.R. 12(d). He simply
argues that the court erred in not providing him with a hearing to establish good cause. This
argument is without merit.
       Root requested a continuance in order to pursue a motion to suppress, and the court
granted his motion. Thereafter, Root did not file a motion to suppress or a motion for leave to
pursue a motion to suppress. Rather, he raised the same issue again three days before the
scheduled trial date. His request for a second continuance was essentially for the same reasons
that he had previously been granted a continuance. While Root requested a hearing in order to
establish good cause, his arguments at the November 18 hearing went to the issue of whether
good cause existed. It is unclear what further arguments would have been presented had a
hearing been granted for the specific purpose of determining whether good cause existed to
relieve Root from his waiver. Root does not identify on appeal what arguments would have been
advanced to establish good cause. Regardless, his request for a hearing on the issue of whether
good cause existed was bound up in his motion for a continuance. The court understood there to
be only one motion, a motion to continue. Root did not attempt to correct the district court when
it explicitly stated that it would only be ruling on the motion to continue. The court ruled on that
motion, and Root does not challenge that ruling on appeal. Thus, Root has failed to show that
the court erred in not holding a hearing.
       Moreover, the district court did not abuse its discretion in denying Root’s motion to
continue, especially in light of the fact that it had already granted a continuance for the reasons
advanced in the first motion to continue. The facts of this case are similar to those of State v.
Irving, 118 Idaho 673, 799 P.2d 471 (Ct. App. 1990). In that case, Irving failed to file a motion
to suppress within the time frame set forth in I.C.R. 12(d). He filed a motion to continue the day
before trial, and the trial court denied the motion the morning of trial. Irving contended that the
State’s noncompliance with his discovery requests prevented him from filing a timely motion to
suppress. This Court noted that Irving had obtained information upon which to base a motion to
suppress. We then determined that because the State had the burden of producing evidence and
the burden of persuasion at the suppression hearing, Irving could have filed a timely motion to
suppress, notwithstanding any failure to comply with discovery. We ultimately concluded that
Irving’s substantial rights had not been adversely affected where “the motion for continuance


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was made for the express purpose of filing an untimely motion to suppress.” Irving, 118 Idaho at
675, 799 P.2d at 473.
       Similarly, in this case Root had the police reports of the incident. Indeed, he argued in
his motion to continue that “[t]he (sworn) police reports further do not reveal why the State’s
evidence should not be suppressed as a direct and proximate result of an illegal arrest.” While
Root continued to pursue audio or video evidence of the arrest, he had sufficient information
upon which to file a timely motion to suppress. Thus, where the motion to continue was made
for the express purpose of filing an untimely motion to suppress, the court did not abuse its
discretion in denying the motion.
B.     Prosecutorial Misconduct
       Root challenges several statements made by the prosecutor during closing argument.
Root asserts that the prosecutor was permitted, over his objection, to argue to the jury on
numerous instances that Root lied in connection with the case and that he lied specifically to the
jury. A review of the record, however, demonstrates that Root only objected to one of the
prosecutor’s statements where he stated, “Mr. Root is willing to lie to a judge and get up in front
of you and tell you he did that.” Root objected on grounds that the statement lacked foundation
and presumed facts not in evidence. The district court overruled the objection. On appeal, Root
contends that all of the prosecutor’s statements, including the one objected to, were an improper
attempt to disparage him personally and to appeal to the passions and prejudice of the jury.
However, an objection which was overruled by the lower court on the ground stated cannot be
considered on appeal on a different ground. State v. Johnson, 119 Idaho 852, 855, 810 P.2d
1138, 1141 (Ct. App. 1991) (citing State v. Pruett, 91 Idaho 537, 428 P.2d 43 (1967)). Thus,
because the objection was not properly preserved on the grounds now asserted on appeal, we will
review the prosecutor’s statement for fundamental error as if no objection was made.
       While our system of criminal justice is adversarial in nature, and the prosecutor is
expected to be diligent and leave no stone unturned, he 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 must keep in mind the realities of trial. A fair trial is
not necessarily a perfect trial. When there is no contemporaneous objection, a conviction will be
reversed for prosecutorial misconduct only if the conduct is sufficiently egregious so as to result
in fundamental error. Id. Misconduct will be regarded as fundamental error when it “goes to the


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foundation or basis of a defendant’s rights or . . . to the foundation of the case or take[s] from the
defendant a right which was essential to his defense and which no court could or ought to permit
him to waive.” State v. Severson, 147 Idaho 694, 716, 215 P.3d 414, 436 (2009); State v.
Bingham, 116 Idaho 415, 423, 776 P.2d 424, 432 (1989) (quoting State v. Garcia, 46 N.M. 302,
309, 128 P.2d 459, 462 (1942)). “However, even when prosecutorial misconduct has resulted in
fundamental error, the conviction will not be reversed when that error is harmless.” Field, 144
Idaho at 571, 165 P.3d at 285. Under the harmless error doctrine, a conviction will stand if the
appellate court is convinced beyond a reasonable doubt that the same result would have been
reached by the jury had the prosecutorial misconduct not occurred. State v. LaMere, 103 Idaho
839, 844, 655 P.2d 46, 51 (1982); State v. Pecor, 132 Idaho 359, 368, 972 P.2d 737, 746 (Ct.
App. 1998).
          When the defendant did not object at trial, our inquiry is, thus, three-tiered. See Field,
144 Idaho at 571, 165 P.3d at 285. First, we determine factually if there was prosecutorial
misconduct. If there was, we determine whether the misconduct rose to the level of fundamental
error. Finally, if we conclude that it did, we then consider whether such misconduct prejudiced
the defendant’s right to a fair trial or whether it was harmless.
          All of the prosecutor’s statements Root challenges on appeal occurred during closing
argument. Closing argument serves to sharpen and clarify the issues for resolution by the trier of
fact in a criminal case. State v. Timmons, 145 Idaho 279, 288, 178 P.3d 644, 653 (Ct. App.
2007). Its purpose is to enlighten the jury and to help 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).
          Root claims that the prosecutor committed misconduct by repeatedly asserting that Root
had lied with respect to his public defender application as well as the issue regarding ownership
of the vehicle. Closing argument should not include the prosecutor’s personal opinions and
beliefs about the credibility of a witness or inflammatory words employed in describing the
defendant.     State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007).              A
prosecuting attorney may express an opinion in argument as to the truth or falsity of testimony or


                                                  8
the guilt of the defendant when such opinion is based upon the evidence, but the prosecutor
should exercise caution to avoid interjecting his or her personal belief and should explicitly state
that the opinion is based solely on inferences from evidence presented at trial. Phillips, 144
Idaho at 86 n.1, 156 P.3d at 587 n.1. Generally, it may be improper to label the defendant as a
“liar,” for testimony given in his or her defense. See Kuhn, 139 Idaho at 716, 85 P.3d at 1115.
“It is not misconduct, however, to refer to the defendant as a liar if the defendant admitted to
lying in connection with the case.” State v. Gross, 146 Idaho 15, 18-19, 189 P.3d 477, 480-81
(Ct. App. 2008).
       When discussing the issue of credibility with the jury, the prosecutor, referencing Root’s
testimony about his public defender application, stated approximately four times that Root had
lied in filling out the application. Root had indicated in his application that he had not been
working for three months. On cross-examination, Root testified that he had been laid off but that
his former employer gave him some “under-the-table work” to “make a couple extra bucks.”
Root testified that he “might have lied a little bit, but it wasn’t intentional.”       Thus, Root
acknowledged being untruthful when filling out his public defender application.
       The prosecutor also asserted that Root was “lying to [the jury] about the ownership of the
truck.” Root testified that he had temporarily traded trucks with an individual, but that they had
not decided whether or not to make the trade permanent. One of the State’s witnesses testified
that Root traded his Ford Ranger pickup as well as three hundred dollars for a Ford F-150, the
truck he was driving when he was arrested. The witness testified that the trucks were traded in
July 2004, and that she saw Root drive the Ford F-150 at least ten times between July and
October. A Coeur d’Alene city police officer also testified that he had pulled Root over for a
traffic violation a few days before the incident giving rise to this case and that Root was driving a
Ford F-150 truck. Thus, Root placed his credibility at issue when he testified that he did not own
the truck. Moreover, Root also placed his credibility at issue when he directly contradicted
Deputy Kerzman’s testimony. Kerzman testified that he discovered an IOU note bearing Root’s
name in the black case, in addition to the contraband. Root testified that the IOU note was in his
wallet, not in the black case. Root’s testimony generally contradicted the testimony of the
State’s witnesses. Thus, his credibility was at issue.
       We recently addressed a similar issue in Gross. In that case, the defendant testified that
he had lied to the officers about his alcohol consumption but that he intended to come forward


                                                 9
with the truth prior to trial. Gross, 146 Idaho at 19, 189 P.3d at 481. His testimony also implied
that the officers had fabricated evidence by removing portions of the audio recording of the stop.
The prosecutor, in the initial closing argument, referenced the defendant’s lie twice and called
Gross a “liar” five separate times during rebuttal. While we acknowledged that the prosecutor’s
excessive use of the term “liar” was “troubling,” we concluded that it “did not amount to
misconduct given that [the defendant] placed his credibility in issue and admitted to lying in
connection with the case.” Id.
       In this case, the prosecutor did not explicitly call Root a “liar.” The prosecutor referred
to Root as having lied with respect to his public defender application as well as ownership of the
vehicle. Root admitted to having lied on his public defender application, and the prosecutor was
free to argue the evidence presented on that issue. Moreover, Root placed his credibility at issue
with respect to ownership of the vehicle. Thus, similar to Gross, where Root admitted to lying in
connection with the case and placed his credibility in issue, the prosecutor’s references to Root
having lied did not amount to misconduct.
       Root next argues that the prosecutor’s attempt to disparage Root by stating that he had
lied was exacerbated by the following statement:
               Credibility, the thing I talked about earlier, is something that you have to
       hold against Mr. Root because of the way he testified and the statements he made.
       Because of that, I think you have to accept what the police officers said in terms
       of their credibility. I’ll leave it up to you, but -- and that’s a decision you need to
       make.

Root contends, relying on federal and out-of-state case law, that this argument improperly
suggested a false dichotomy, that the jury was required to believe either the defendant’s or the
State’s version of events.
       As noted, 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. Sheahan, 139 Idaho at 280, 77 P.3d at 969;
Phillips, 144 Idaho at 86, 156 P.3d at 587. This includes the right to identify how, from the
party’s perspective, the evidence confirms or calls into doubt the credibility of particular
witnesses. State v. Lovelass, 133 Idaho 160, 168, 983 P.2d 233, 241 (Ct. App. 1999) (citing
State v. Priest, 128 Idaho 6, 14, 909 P.2d 624, 632 (Ct. App. 1995)). Of course, closing




                                                 10
argument should not include counsel’s personal opinions and beliefs about the credibility of a
witness. Phillips, 144 Idaho at 86, 156 P.3d at 587.
       Here, the prosecutor argued that the jury should hold credibility against Root. However,
the argument was made in the context of the prosecutor’s attempt to establish possession of the
drugs and, specifically, the black case where the drugs were found, in light of Root’s testimony
that the black case was not his and that he did not know what was inside. After informing the
jury that it was required to make the credibility determination, the prosecutor stated:
                But when you do that, think about the following when you think about
       possession. And these are the things that show he was in possession of that.
                His truck, and had been for a long time. His stuff in it, clothing over the
       black case, knife right next to the black case, pistol right under the black case,
       rifle right behind the black case. All of that stuff that was his was in close
       proximity to the black case.
                His statement, everything in there is his. Take that for whatever it’s
       worth. It really doesn’t mean very much. It’s the circumstantial evidence here
       that ties him to possession. And you’ve got his truck and those things that are his
       in close proximity to that. The fact that when he’s contacted by the police, the
       black case is right next to him.
                And finally the note, the note itself. You have an IOU, which, again, you
       can look at it as evidence of intent to deliver. And it’s the clear testimony from
       the officer that this IOU, that the defendant admitted was to him, was in the black
       case. That establishes possession in this black case.

The prosecutor’s argument presented, from the State’s perspective, why the evidence
demonstrated that Root’s testimony was not credible and the officers’ testimony was credible.
Thus, the prosecutor’s statements did not constitute misconduct.
                                                III.
                                         CONCLUSION
       Root has failed to demonstrate that the district court erred in not holding a hearing to
determine whether good cause existed to allow him to file an untimely motion to suppress. The
prosecutor’s statements during closing argument did not constitute misconduct. Root’s judgment
of conviction and sentence entered thereon are affirmed.
       Judge GUTIERREZ and Judge MELANSON, CONCUR.




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