               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42923

STATE OF IDAHO,                                ) 2016 Opinion No. 33
                                               )
       Plaintiff-Respondent,                   ) Filed: June 8, 2016
                                               )
v.                                             ) Stephen W. Kenyon, Clerk
                                               )
SAMUEL C. NEYHART,                             )
                                               )
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. G. Richard Bevan, District Judge.

       Judgment of conviction for three counts of lewd conduct with a minor under
       sixteen, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Erik R. Lehtinen, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Samuel C. Neyhart appeals from the district court’s judgment of conviction on three
counts of lewd conduct with a minor under sixteen. Neyhart raises three issues on appeal. First,
he argues there was insufficient evidence to support his convictions. Next, he maintains the
prosecutor committed misconduct by commenting on Neyhart’s silence at trial. Last, Neyhart
contends the prosecutor committed misconduct by using an inadmissible hearsay document for
impeachment purposes, and the district court erred by allowing the prosecution to use the
document without laying a proper foundation. For the reasons explained below, we affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       In November 2010, the mother of a six-year-old girl reported to authorities that Neyhart
had sexually molested her daughter, K.S. The police investigated the allegations, conducting

                                               1
interviews with K.S., Neyhart, and other individuals. In June 2013, Neyhart was charged with
three counts of lewd conduct with a minor under sixteen, Idaho Code § 18-1508.1 The State
specifically accused Neyhart of engaging in genital-genital contact with K.S.
       During the trial, the State presented testimonial evidence from a number of witnesses.
K.S. testified that her uncle, Neyhart, sexually molested her in his fifth-wheel trailer on three
separate occasions. Her testimony revealed that in each instance, the sexual contact took place in
Neyhart’s bed where he “messed with [her] bottom.” She testified that on the third occasion,
which took place on Friday, October 29, 2010, Neyhart “started messing” with her while they
were in bed and under the covers. Neyhart then “peed in [her] underwear,” which made her
underwear wet. K.S.’s mother testified that K.S. told her what had happened with Neyhart on
Sunday, October 31. The mother explained that she then examined K.S.’s body and discovered
fingerprint-shaped bruises on her legs. She also noticed that K.S.’s vagina was “very red.” She
took photos of K.S.’s body and gave the photos to the police. A detective then testified that on
November 6, 2010, K.S.’s father turned over the clothing K.S. had been wearing on October 29
to the police. These items included a pair of junior-sized pink underwear featuring images of
monkeys. Forensic scientists then testified that the pink underwear tested positive for the
presence of semen and that the semen on the pink underwear matched the profile generated from
an oral swab taken from Neyhart. Finally, the pediatrician that had evaluated K.S. during a
CARES (Child at Risk Evaluation Services) interview on November 2 testified about what K.S.
had said during the interview. The pediatrician also testified that, during a physical evaluation,
she observed bruising on the upper inner part of K.S.’s thighs.




1
       Idaho Code § 18-1508 reads:

               Any person who shall commit any lewd or lascivious act or acts upon or
       with the body or any part or member thereof of a minor child under the age of
       sixteen (16) years, including but not limited to, genital-genital contact, oral-
       genital contact, anal-genital contact, oral-anal contact, manual-anal contact, or
       manual-genital contact, whether between persons of the same or opposite sex, or
       who shall involve such minor in any act of bestiality or sado-masochism as
       defined in section 18-1507, Idaho Code, when any of such acts are done with the
       intent of arousing, appealing to, or gratifying the lust or passions or sexual desires
       of such person, such minor child, or third party, shall be guilty of a felony and
       shall be imprisoned in the state prison for a term of not more than life.
                                                 2
       The State also presented physical evidence for the jury to consider. The State showed the
jury the articles of clothing K.S. was wearing on October 29, including the pink underwear;
played a recording of the CARES interview between K.S. and the pediatrician; and provided the
pictures taken by K.S.’s mother. Additionally, the State played two recordings showing the
police interviews of Neyhart conducted in 2010 and 2013.
       The defense presented testimonial evidence from Neyhart’s wife, Neyhart’s mother, and
Neyhart himself. Neyhart’s wife testified that the junior-sized pink underwear with the monkeys
belonged to her and that Neyhart’s semen was on the underwear because they had been intimate
on the day she wore them. She also testified that she had previously observed K.S.’s parents
discipline K.S. by pinching her thighs, and she had observed K.S.’s vaginal area being red and
bleeding prior to the alleged sexual contact. Then, Neyhart’s mother testified that she saw K.S.’s
aunt near Neyhart’s trailer a few days after the alleged sexual contact and that the aunt was
carrying what appeared to be rolled up panties in her hand. Neyhart then testified as to his
version of events on the days in question, asserting he never laid in bed with K.S., and he never
had any sexual contact with her. He also testified that the pink panties belonged to his wife.
       Numerous times during trial, the prosecutor called into question why Neyhart and his
wife both waited until trial to come forward with information that, while assisting K.S. in using
the bathroom, Neyhart’s wife had observed K.S.’s vaginal area as being “red and sore” and
“bleeding” prior to the alleged sexual contact. The prosecutor also questioned why they both
waited until trial to reveal that the semen-stained pink underwear belonged to Neyhart’s wife.
The prosecutor similarly questioned Neyhart’s mother as to why she waited until trial to come
forward with information that she had seen K.S.’s aunt carrying panties near Neyhart’s trailer
shortly after the alleged sexual contact.
       At one point during trial, the prosecutor attempted to discredit Neyhart with his pretrial
statement to police investigators that he was taking Cymbalta, a prescription medication that
allegedly caused him to experience semen leakage. During the police interview, Neyhart had
suggested that his leakage issue might explain how his semen ended up on K.S.’s underwear.
The prosecutor used a document she referred to as his “pharmacy record” to show that Cymbalta
was absent from the record’s list of medications prescribed during the relevant time period.
Neyhart’s counsel objected several times to the prosecutor’s use of this document, arguing that it
improperly assumed facts in evidence and was inadmissible hearsay. The prosecutor repeatedly

                                                 3
responded that she was using the document to refresh Neyhart’s memory. The district court
overruled each objection and allowed the prosecutor to use the document.
        Ultimately, a jury returned a verdict of guilty on each of the three counts of lewd conduct
with a minor. Neyhart filed a renewed motion for judgment of acquittal and a motion for a new
trial or mistrial.   The district court denied both motions, and Neyhart filed a motion for
reconsideration. Again, the district court denied Neyhart’s motion. Neyhart was sentenced to
three concurrent life sentences, with ten years determinate. Neyhart filed an Idaho Criminal
Rule 35 motion for reduction of his sentences, which was denied. Neyhart timely appeals from
the district court’s judgment of conviction.
                                                  II.
                                             ANALYSIS
A.      Sufficiency of the Evidence
        Neyhart first argues there was insufficient evidence to support the jury’s finding of guilt
on each of the three counts of lewd conduct with a minor. Appellate review of the sufficiency of
the evidence is limited in scope. A finding of guilt will not be overturned on appeal where there
is substantial evidence upon which a reasonable trier of fact could have found that the
prosecution sustained its burden of proving the essential elements of a crime beyond a reasonable
doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998); State
v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App. 1991). We will not substitute our
view for that of the trier of fact as to the credibility of the witnesses, the weight to be given to the
testimony, and the reasonable inferences to be drawn from the evidence. Knutson, 121 Idaho at
104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct. App. 1985).
Moreover, we will consider the evidence in the light most favorable to the prosecution.
Herrera‑Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson, 121 Idaho at 104, 822 P.2d at 1001.
        Neyhart maintains the State failed to present sufficient evidence that genital-genital
contact occurred. He points to the following exchange between the prosecutor and K.S. at trial
to demonstrate that K.S. could not distinguish between Neyhart’s genitalia and his buttocks or
anus:
        Q:      And what did you do after that?
        A:      He messed with me.
        Q:      What do you--what do you mean by “messed”?
        A:      He messed with my bottom.

                                                   4
       Q:      And what did he do to your bottom?
       A:      He messed with it.
       Q:      Did he pinch it?
       A:      No.
       Q:      Did he spank it?
       A:      No.
       Q:      What touched--what touched your bottom to be messed with?
       A:      His bottom.
       Q:      And is--what does he do with his bottom?
       A:      He pushed against it.
       Q:      So on [Neyhart], his bottom, what does his bottom do when he goes to the
bathroom?
       A:      Pee and poop.
From that dialogue, Neyhart argues that the State failed to establish that he touched K.S.’s
genitalia with his genitalia. Neyhart further notes that K.S. never saw what touched her and did
not know whether what was touching her was soft or hard. And, while K.S. informed law
enforcement that Neyhart touched her with his “private,” there was never clarification as to what
“private” meant. Lastly, Neyhart maintains the presence of semen on K.S.’s underwear does not
necessarily mean Neyhart’s genitalia touched her, since genital-genital contact is not required for
Neyhart to discharge semen.
       The record reflects, however, the jury in fact had sufficient evidence to find Neyhart
guilty of lewd conduct with a minor. The evidence in this case includes the victim’s testimony
that Neyhart got into bed with her on three separate occasions while inside Neyhart’s trailer. On
the first occasion, Neyhart “kind of yelled at [her]” to get into the bed. K.S. testified that on each
occasion, he would remove her tights and they would lie on their sides facing each other under
the covers. K.S. also testified that while facing Neyhart in bed, he would lift her leg over his hip
and begin to push against her “bottom” with his “bottom.” She testified that Neyhart “messed
with” her “bottom” on each of the three occasions.
       K.S. explained to the jury that a person’s “bottom” was where people pee from, whereas
a person’s “backside” is where people poop. The prosecutor motioned to her pelvic region,
asking if that was a person’s “bottom.” K.S. responded affirmatively. The prosecutor then
motioned to her buttocks, asking what that part was called. K.S. replied, “Backside.” Thus, the
record demonstrates that K.S. at times referred to genitalia as a “bottom.”
       Additionally, K.S. testified that on the third occasion, Neyhart “peed in [her] underwear”
while she was wearing them and while Neyhart was pushing himself against her. She testified


                                                  5
that she knew he peed in her underwear “because it was wet.” A forensic scientist identified
semen on a pair of junior-sized pink underwear with monkey images that K.S.’s father gave to
the police on November 6, 2010. Another forensic scientist compared the profile from the semen
present on the pink underwear to the profile he generated from an oral swab taken from
Neyhart‑-the profiles matched.
       K.S.’s mother testified that on October 31, two days after K.S. was with Neyhart, she
noticed K.S.’s vagina was “very red.” She also observed small or medium sized round bruises
that looked like fingerprints on K.S.’s legs. She took photos of what she observed and provided
those pictures to police.    K.S.’s mother also testified that she purchased the pair of pink
underwear for K.S.
       The jury also heard testimony from the pediatrician that evaluated K.S. during the
November 2 CARES interview. The pediatrician testified that during the interview, K.S. told her
something bad or something that made K.S. feel sad happened to her in Neyhart’s bed in his
trailer. K.S. told the pediatrician that Neyhart “rubbed up there.” K.S. told the pediatrician, “He
was wearing his clothes.      I was wearing mine.      Then he peed in my underwear.”          The
pediatrician further testified that K.S. indicated Neyhart pulled her dress up, laid down on his
side facing her, told her to roll over, and put her leg up on him. K.S. “then felt him pee” and told
the pediatrician, “he did it to me every time I was there.” During a physical evaluation, the
pediatrician observed bruising on the upper inner part of K.S.’s thighs.
       Apart from testimonial evidence, the jury also watched the videos of the CARES
interview with K.S., saw the photographs of K.S. taken by K.S.’s mother, and observed the
articles of K.S.’s clothing worn on the day of the alleged sexual contact. Based on the testimony
and evidence presented at trial, a reasonable jury could have found, and indeed did find, that
Neyhart was guilty of lewd conduct with a minor under sixteen, specifically for engaging in
genital-genital contact with K.S.
       Turning to Neyhart’s argument that the term “private” was never clarified to determine
what K.S. meant when using the term, it is the province of the jury to determine what the witness
meant by an ambiguous phrase, and we will not substitute our view for that of the jury as to the
reasonable inferences to be drawn from the evidence. Knutson, 121 Idaho at 104, 922 P.2d at
1001; Decker, 108 Idaho at 684, 701 P.2d at 304. For instance, in Crawford v. State, ___ Idaho
___, ___ P.3d ___ (2016), the defendant argued there was insufficient evidence to support his

                                                 6
conviction for lewd contact against a minor (specifically, manual-genital contact) because the
victim testified that he touched her “outside of [her] vaginal area,” which does not constitute
manual-genital contact. The Supreme Court found his argument unavailing, reasoning that the
phrase “outside of my vaginal area” is an ambiguous phrase, susceptible of more than one
reasonable interpretation. Id. at ___, ___ P.3d at ___. The Court noted that because it is
required to consider the evidence in the light most favorable to the State, “[t]his means that when
reviewing ambiguous testimony on appeal, we resolve the ambiguity in a fashion that supports
the judgment below.” Id. at ___, ___ P.3d at ___. Here too, assuming “private” is an ambiguous
term, we must resolve the ambiguity to support the guilty verdicts.
       Moreover, when considering trial evidence, jurors are permitted to take into account
matters of common knowledge and experience. State v. Espinoza, 133 Idaho 618, 622, 990 P.2d
1229, 1233 (Ct. App. 1999).        It is common knowledge that children refer to genitalia as
“privates” or “private parts.” Therefore, in sum, there was substantial evidence upon which the
jury could have found Neyhart guilty, beyond a reasonable doubt, of genital-genital lewd
conduct with a minor.
B.     Right to Silence
       Next, Neyhart argues that the State committed fundamental error when the prosecutor
questioned him about his failure to give police certain information during the course of their
investigation. Neyhart contends that he had invoked his right to silence during two interviews
with officers; thus, the State was not permitted to comment on the fact that he did not reveal
certain information to officers during those interviews. The two interviews at issue are a 2010
pre-arrest, pre-Miranda2 interview with Detective White and Detective Duch (“2010 interview”)
and a 2013 post-arrest, post-Miranda interview with Detective Joslin (“2013 interview”).
       At trial, Neyhart chose to testify on his own behalf, maintaining his innocence. On cross-
examination, the prosecutor questioned Neyhart as to why he did not tell police during the 2010
interview that his wife had observed K.S.’s genitals as being red. The prosecutor also questioned
Neyhart as to why he waited until trial to assert that the pink underwear belonged to his wife.
During closing arguments, the prosecutor commented on whether it was reasonable for Neyhart
to wait until trial to tell anyone that the underwear belonged to his wife.


2
       See Miranda v. Arizona, 384 U.S. 436 (1966).

                                                  7
       Neyhart did not object to this line of questioning or the closing comment during trial.
Generally, issues not objected to below may not be considered for the first time on appeal. State
v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Idaho decisional law, however, has
long allowed appellate courts to consider a claim of error to which no objection was made below
if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho 559,
571, 165 P.3d 273, 285 (2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971).
In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court abandoned the
definitions it had previously utilized to describe what may constitute fundamental error. The
Perry Court held that an appellate court should reverse an unobjected-to error 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.
       As to the first Perry prong, Neyhart maintains that the prosecutor’s comments violated
his constitutional rights under both the United States Constitution and the Idaho Constitution.
The Fifth and Fourteenth Amendments to the United States Constitution, as well as Article I,
Section 13 of the Idaho Constitution, guarantee a criminal defendant the right not to be
compelled to testify against himself. This guarantee also bars prosecutors from commenting on a
defendant’s invocation of his or her right to silence. Griffin v. California, 380 U.S. 609, 613-14
(1965). Commenting on a defendant’s refusal to answer questions or provide information can
constitute an impermissible comment on a defendant’s silence. See State v. Galvan, 156 Idaho
379, 385, 326 P.3d 1029, 1035 (Ct. App. 2014).
       A defendant’s decision to exercise his or her constitutional right to remain silent pre-
custody cannot be used in the State’s case-in-chief solely for the purpose of inferring guilt. State
v. Ellington, 151 Idaho 53, 60, 253 P.3d 727, 734 (2011) (noting that the protection attaches
upon custody, not arrest or interrogation); see also State v. Ehrlick, 158 Idaho 900, 920, 354 P.3d
462, 482 (2015), State v. Parker, 157 Idaho 132, 147, 334 P.3d 806, 821 (2014); State v. Moore,
131 Idaho 814, 820-21, 965 P.2d 174, 180-81 (1998).              This is because a defendant’s
constitutional protections are always available regardless of whether the defendant has received
Miranda warnings and regardless of whether the defendant is in custody. Moore, 131 Idaho at
820, 965 P.2d at 180. However, a prosecutor may use a defendant’s pre-Miranda silence, either

                                                  8
pre- or post-custody, as impeachment evidence against the defendant. Fletcher v. Weir, 455 U.S.
603, 607 (1982); Parker, 157 Idaho at 147, 334 P.3d 15 821; Ellington, 151 Idaho at 60, 253
P.3d at 734. But, once a defendant is given Miranda warnings, any subsequent invocation of his
or her right to silence may not be used to later impeach the defendant during trial. Doyle v. Ohio,
426 U.S. 610, 619 (1976). To assert the privilege against self-incrimination, the defendant must
expressly invoke the right to remain silent. Salinas v. Texas, ___ U.S. ___, ___, 133 S. Ct. 2174,
2181-84 (2013).     However, “[n]o ritualistic formula is necessary in order to invoke the
privilege.” Quinn v. United States, 349 U.S. 155, 164 (1955).
       First, regarding the prosecutor’s references to Neyhart’s failure to provide the
investigating officers with certain information during the 2010 interview, the parties do not
dispute that Neyhart never received Miranda warnings before or during that interview. At
numerous times during the interview, Neyhart told officers that he did not want to answer their
questions without first speaking with an attorney. Neyhart contends his request for an attorney
was sufficient to invoke his constitutionally protected right to remain silent. The State contends,
however, that Neyhart could not invoke his right to remain silent under Miranda because he was
not in custody.3 Even if we are to assume, without deciding, that Neyhart’s request to speak to
an attorney was a proper invocation of his constitutional right to silence, we hold that the
prosecutor’s questioning was nonetheless proper use of pre-Miranda impeachment evidence.
       Prosecutors may impeach the credibility of a defendant during cross-examination by
asking the defendant to explain prior inconsistent statements and actions. Jenkins v. Anderson,
447 U.S. 231, 238 (1980). “Once a defendant decides to testify, ‘[t]he interest of the other party
and regard for the function of the courts of justice to ascertain the truth become relevant, and
prevail in the balance of considerations determining the scope and limits of the privilege against
self-incrimination.’” Id. (quoting Brown v. United States, 356 U.S. 148, 156 (1958)). “In the
absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not
believe that it violates due process of law for a State to permit cross-examination as to postarrest
silence when a defendant chooses to take the stand.” Fletcher, 455 U.S. at 607.
       A prosecutor can properly impeach a defendant regarding his or her pre-Miranda failure
to come forward with relevant information regarding alleged criminal conduct. Jenkins, 447

3
       The State argues that the constitutional protections afforded by Miranda cannot be
invoked anticipatorily before a defendant is in custody.
                                                 9
U.S. at 238. In Jenkins, a defendant on trial for first degree murder testified that he had killed
the victim in self-defense. Id. at 233-35. During cross-examination of the defendant, the
prosecutor elicited the defendant’s admission that he had waited two weeks before reporting the
incident to authorities. Id. This line of questioning was the prosecutor’s attempt to impeach the
defendant’s credibility by suggesting that he would have spoken out sooner if he had truly acted
in self-defense.   Id. at 235.   The United States Supreme Court held that the prosecutor’s
impeachment of the defendant’s credibility during cross-examination neither violated the
defendant’s Fifth Amendment right to silence nor deprived him of fundamental fairness
guaranteed by the Due Process Clause. Id. at 238.
       As to the prosecutor’s questioning of Neyhart on his failure to tell investigators about his
wife’s observations of K.S.’s vaginal area, the prosecutor was attempting to use this evidence to
impeach Neyhart’s credibility. During trial, Neyhart’s wife revealed that she had observed
K.S.’s vaginal area as being “red and sore” and “bleeding” prior to the alleged sexual contact.
Then during cross-examination, Neyhart revealed that he knew about his wife’s observations at
the time of the 2010 interview. The prosecutor repeatedly questioned Neyhart as to why he did
not provide that information to police investigators prior to coming to trial.         Just as the
prosecutor in Jenkins was constitutionally permitted to impeach the defendant’s credibility with
evidence of his failure to come forward with information pertaining to the crime, the prosecutor
here could properly impeach Neyhart’s credibility based on his failure to come forward with
relevant information pertaining to the alleged crime.
       Moreover, as to the statements about the ownership of the pink underwear, during the
2010 interview, Neyhart had suggested a variety of explanations about how his semen might
have gotten onto K.S.’s underwear. He proffered that his semen might have transferred from his
sheets to her underwear when she laid down in his bed. He also suggested because he suffered
from semen leakage, his semen might have transferred to her underwear when she used his toilet
in the trailer. At no time during the interview did Neyhart challenge whether the semen-stained
underwear belonged to K.S. Then, for the first time at trial, the defense presented testimony that
the underwear belonged to Neyhart’s wife.
       During trial, the prosecutor neither expressly stated nor implied that Neyhart had refused
to answer police questions or otherwise asserted his right to silence. Instead, her questions and
closing arguments implied that Neyhart had left important information out of his interviews with

                                                10
police, choosing instead to come forward with that information at trial. It was Neyhart, not the
prosecutor, who indicated that he did not tell police that information because he had refused to
cooperate further without consulting an attorney. Although the prosecutor’s questioning had the
effect of eliciting this testimony, the purpose of the prosecutor’s questioning was to draw
attention to the discrepancies between Neyhart’s trial testimony and his statements to police
during the 2010 interview. In asking why Neyhart had not come forward to investigators with
information that the underwear belonged to his wife, the prosecutor was attempting to impeach
the credibility of Neyhart’s trial testimony. Because the prosecutor used the evidence to impeach
Neyhart’s credibility at trial, Neyhart has failed to show a constitutional violation of his right to
silence as to the 2010 interview.
       Second, regarding the prosecutor’s reference to Neyhart’s silence during the 2013
interview, it is undisputed that Neyhart was properly Mirandized at the time of the interview.
Thus, the State would have been prohibited from commenting on Neyhart’s silence either in its
case-in-chief or as impeachment during cross-examination. Ellington, 151 Idaho at 60, 253 P.3d
at 734. The State argues, however, that Neyhart never expressly invoked his right to silence
during the interview, as is required under Salinas.4
       Here, nothing in the record indicates that Neyhart made any attempt to invoke his right to
silence during the 2013 interview. Neyhart provided a response to each question asked by the
officer. Neyhart never indicated a desire to remain silent and never asked for or referenced
speaking to an attorney. Neyhart was fully cooperative and responsive throughout the entire
interview. Because Neyhart did nothing to affirmatively assert his right to remain silent during
the 2013 interview, he cannot now rely on the constitutional privilege against self-incrimination.
       Because Neyhart has failed to establish a constitutional violation under the first prong of
Perry, we need not address the second and third prongs. Therefore, we conclude that Neyhart
has not established fundamental error as relates to his claim that the prosecutor improperly
commented on his right to silence.




4
        Neyhart does not argue that his failure to affirmatively assert his right to remain silent
falls under one of the exceptions recognized in Salinas v. Texas, ___ U.S. ___, ___, 133 S. Ct.
2174, 2179-80 (2013). Moreover, those exceptions are not applicable to the facts in this case.
                                                 11
C.     Pharmacy Record
       Finally, Neyhart asserts that the district court erred in allowing Neyhart’s pharmacy
record to be admitted during trial. He also contends that the prosecutor committed misconduct
by vouching for the accuracy and contents of the record.
       During trial, the prosecutor presented Neyhart with a document that she referred to as
Neyhart’s pharmacy record. She attempted to show that the pharmacy record did not list
Cymbalta as one of Neyhart’s prescriptions despite his pretrial contention to investigators that he
was taking the medication and it had caused him to experience semen leakage. Neyhart objected
to the prosecutor’s use of the pharmacy record, stating: “Your Honor, I’m going to object as
assuming facts in evidence. I have never been provided this document. I have no way to
determine if what she’s saying is correct. It has not been admitted.” The prosecutor responded
that she was not admitting the evidence, but merely using the document to “refresh [Neyhart’s]
memory.” The district court overruled the objection. Defense objected three additional times,
two of those objections asserting hearsay. The district court allowed the prosecutor’s use of the
document, at one point stating the document was “not for the truth in any way.                  It’s
impeachment.”
       In its briefing, the State does not argue the document was properly admitted. Rather, the
State argues that even if admission of the evidence was improper, the prosecutor could not have
committed misconduct by conducting her actions in conformance with the court’s rulings, and
any error related to the admission of or reference to the document was harmless. Even if we are
to assume, without deciding, that the admission and use of the pharmacy record was improper,
such error is not reversible unless it is prejudicial. See Ellington, 151 Idaho at 59, 253 P.3d at
733; State v. Stoddard, 105 Idaho 169, 171, 667 P.2d 272, 274 (Ct. App. 1983). Where a
defendant meets his or her initial burden of showing that a constitutional violation has occurred,
the State has the burden of demonstrating to the appellate court beyond a reasonable doubt that
the violation did not contribute to the jury’s verdict. Perry, 150 Idaho at 227-28, 245 P.3d at
979-80. The United States Supreme Court has explained that:
               To say that an error did not contribute to the ensuing verdict is not, of
       course, to say that the jury was totally unaware of that feature of the trial later to
       have been erroneous. . . . To say that an error did not contribute to the verdict is,
       rather, to find that error unimportant in relation to everything else the jury
       considered on the issue in question, as revealed in the record.


                                                12
Yates v. Evatt, 500 U.S. 391, 403 (1991), overruled in part on other grounds by Estelle v.
McGuire, 502 U.S. 62, 72 n.4 (1991). A conviction will not be set aside for small errors or
defects that have little, if any, likelihood of having changed the results of the trial. State v.
Pecor, 132 Idaho 359, 367-68, 972 P.2d 737, 745-46 (Ct. App. 1998). Therefore, the question
before this Court is whether the complained-of error contributed to the verdict, or whether it was
unimportant in relation to everything else the jury considered on the issue of Neyhart’s
credibility.
        In State v. Joy, 155 Idaho 1, 304 P.3d 276 (2013), a husband and wife were involved in a
domestic altercation, after which charges were brought against the husband. At trial, the court
improperly admitted evidence of the defendant’s prior misconduct despite the defendant’s
objection. Id. at 4, 304 P.3d at 279. On appeal, the State acknowledged that the evidence
securing the conviction was “relatively weak” and the credibility of the wife was an issue, but
argued that inclusion of the inadmissible evidence was harmless. Id. at 12, 304 P.3d at 287. The
Supreme Court disagreed, holding that because the case hinged upon the conflicting testimony of
the husband and wife, the only two witnesses, and upon whose version of events the jury
believed, the State had not shown beyond a reasonable doubt that the verdict was unaffected by
the error. Id.
        At first blush, this case appears to be similar to Joy in that the allegations underlying the
conviction involve a he-said, she-said accounting of events. In such a situation, Neyhart’s
credibility, specifically his version of the facts, would be critical to his defense that the alleged
sexual contact never occurred.      However, the way in which this case differs from Joy is
significant--the State’s presentation of evidence corroborating K.S.’s testimony. Unlike Joy, the
success of the State’s case against Neyhart did not hinge primarily upon the impeachment of
Neyhart’s version of events. Instead, the jury considered testimonial evidence from multiple
witnesses as well as physical evidence of bruising, vaginal redness, and junior-sized underwear
with Neyhart’s semen on them.        Thus, the jury was able to weigh more than merely the
testimony of K.S. against that of Neyhart in considering the issue of Neyhart’s credibility.
        Throughout trial, the State presented substantial evidence challenging Neyhart’s
credibility.     The State impeached Neyhart’s trial testimony with evidence of his prior
inconsistent statements to police investigators.      The State also challenged the veracity of
Neyhart’s wife and mother, each of whom testified favorably to Neyhart. Most importantly, the

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complained-of error was immaterial to the issue of Neyhart’s credibility. The complained-of
error ultimately resulted in the impeachment of Neyhart’s pretrial assertion that a side-effect of
his prescription medication caused him to leak semen and that K.S. could have gotten his semen
on her underwear by using his toilet. As the State argues, the issue of semen leakage became
moot during trial when Neyhart and his wife both testified that the underwear belonged to
Neyhart’s wife, not to K.S.      Therefore, the State’s attempted impeachment of Neyhart’s
testimony that he was taking the prescription medication at the time of the alleged sexual contact
was immaterial, and in his briefing on appeal, Neyhart acknowledges its immateriality.
       Because the complained-of error was immaterial to Neyhart’s credibility or his defense
and because the State presented substantial evidence throughout trial challenging Neyhart’s
credibility, we hold that any error in admitting or using the pharmacy record was unimportant in
relation to everything else the jury considered.      Therefore, even if the district court and
prosecutor erred, any such error was harmless beyond a reasonable doubt.
                                               III.
                                        CONCLUSION
       Neyhart has not shown that there was insufficient evidence to support his convictions
because there was substantial evidence upon which the jury could find Neyhart guilty beyond a
reasonable doubt. Furthermore, Neyhart has not shown that his constitutional right to silence
was implicated by the prosecutor’s questioning and comments at trial. As to the 2010 interview
with police, the prosecutor properly used Neyhart’s failure to come forward with information
pertaining to the offense as impeachment. As to the 2013 interview, Neyhart never invoked his
right to silence. Finally, to the extent that the pharmacy record may have been improperly
admitted or used, any error was harmless in light of its immateriality and in light of the
cumulative evidence the jury considered. Accordingly, Neyhart’s judgment of conviction for
three counts of lewd conduct with a minor under sixteen is affirmed.
       Chief Judge MELANSON and Judge HUSKEY CONCUR.




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