               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42462

STATE OF IDAHO,                                )   2015 Unpublished Opinion No. 771
                                               )
       Plaintiff-Respondent,                   )   Filed: December 30, 2015
                                               )
v.                                             )   Stephen W. Kenyon, Clerk
                                               )
KENNETH DEAN FLOWERDEW,                        )   THIS IS AN UNPUBLISHED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,
       Boundary County. Hon. Barbara A. Buchanan, District Judge.

       Judgment of conviction for obstructing and resisting an officer and battery on
       certain personnel, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

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

GUTIERREZ, Judge
       Kenneth Dean Flowerdew appeals from the judgment entered upon the jury verdict
finding him guilty of obstructing and resisting an officer and battery on certain personnel.
Specifically, Flowerdew argues the district court erred in overruling his objections to remarks
that constitute prosecutorial misconduct. Additionally, Flowerdew argues the district court erred
when it overruled his objections to the admission of a diagram offered as demonstrative
evidence. Flowerdew maintains the diagram was irrelevant and, even if it were relevant, the
prejudicial effect substantially outweighed its probative value. Flowerdew also argues that the
cumulative error doctrine applies. He requests that this Court vacate the judgment of conviction
and remand for a new trial. For the reasons explained below, we affirm.




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                                                  I.
                      FACTUAL AND PROCEDURAL BACKGROUND
       Flowerdew was a passenger in a vehicle when Officer Cowell stopped the vehicle.
United States Border Patrol Agent Grainger arrived at the scene shortly thereafter. While
Flowerdew was outside of the vehicle, Officer Cowell looked through the open passenger door
and observed a baggy containing a clear crystal substance. Officer Cowell informed Flowerdew
that he was under arrest for possession of a controlled substance. Flowerdew responded, “What
controlled substance?” Flowerdew then asked to see the controlled substance as Officer Cowell
arrested him.    When Officer Cowell declined, Flowerdew tensed up and elbowed Officer
Cowell’s chest. Flowerdew then ran from the scene. Agent Grainger and Officer Cowell chased
after Flowerdew and wrestled him to the ground. During the struggle, Flowerdew kneed Officer
Cowell’s groin. Meanwhile, Sergeant Strangio arrived at the scene to assist. Officer Cowell left
Agent Grainger and Sergeant Strangio with Flowerdew while Officer Cowell returned to the
vehicle to conduct an additional search. During the search, he discovered a glass pipe and a
second baggy containing a clear crystal substance. The State ultimately charged Flowerdew with
obstructing and resisting an officer, battery on certain personnel, and possession of a controlled
substance.
       Before the jury trial, Officer Cowell drew a diagram of the vehicle and marked two red
Xs and a red circle to indicate where he observed two baggies containing clear crystal substances
and a baggy containing a glass pipe. The State sought to admit the diagram for illustrative
purposes during Officer Cowell’s testimony at trial. Flowerdew objected, but the district court
overruled the objection and admitted the diagram.
       Flowerdew also objected to various remarks the prosecutor made during closing
argument. The district court overruled the objections. On appeal, Flowerdew maintains the
remarks amount to prosecutorial misconduct. Flowerdew asserts that the accumulation of these
errors, even if individually harmless, deprived him of a fair trial.
                                                  II.
                                            ANALYSIS
A.     Prosecutorial Misconduct
       Flowerdew points to two specific instances of prosecutorial misconduct that occurred
during the prosecutor’s closing argument. First, he contends the prosecutor mischaracterized his

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trial counsel’s argument. Additionally, Flowerdew maintains the prosecutor argued facts not in
evidence. Flowerdew’s trial counsel objected on each instance. The district court overruled both
objections, reasoning that it was closing argument. Flowerdew argues that the district court erred
in overruling the objections, and the errors were not harmless.
       The State argues that because defense counsel did not specifically object to the
statements on the grounds that they amounted to disparaging comments, Flowerdew did not
preserve the issue for appeal. An objection on one ground will not preserve for appeal a separate
and different basis for objection not raised before the trial court. State v. Higgins, 122 Idaho
590, 597, 836 P.2d 536, 543 (1992); State v. Armstrong, 158 Idaho 364, 367, 347 P.3d 1025,
1028 (Ct. App. 2015). Where an objection has been found not to be preserved, the objection
argued on appeal was either distinct from that raised below or the argument objected to below
and on appeal was substantially different. State v. Sheahan, 139 Idaho 267, 277, 77 P.3d 956,
966 (2003).
       Here, however, the basis for the objection below was not separate, distinct, or different
from Flowerdew’s argument on appeal. At trial, defense counsel objected to the prosecutor’s
comments on the grounds that the statements misrepresented and mischaracterized defense
counsel’s argument.     Flowerdew again argues that the prosecutor misrepresented defense
counsel’s argument which, in effect, was disparaging. Similarly, in Sheahan, the defendant
objected to evidence at trial on the grounds of lack of foundation. Id. at 276-77, 77 P.3d at 965-
66. On appeal, he argued that the evidence was inadmissible habit evidence. Id. at 276, 77 P.3d
at 965. The Idaho Supreme Court held that “the objection at the trial court in this case was not
specific but the foundation objection overlaps sufficiently with the habit evidence argument on
appeal to preserve the objection.” Id. at 277, 77 P.3d at 966. Here, too, the mischaracterization
objection overlaps with the argument that the prosecutor disparaged defense counsel’s argument.
Accordingly, the issue was preserved for appeal.
       While 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 must keep in mind the realities of a trial.
State v. Ellington, 151 Idaho 53, 62, 253 P.3d 727, 736 (2011); Field, 144 Idaho at 571, 165 P.3d
at 285. Indeed, a fair trial is not necessarily a perfect trial. Ellington, 151 Idaho at 62, 253 P.3d

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at 736; State v. Enno, 119 Idaho 392, 408, 807 P.2d 610, 626 (1991); State v. Estes, 111 Idaho
423, 428, 725 P.2d 128, 133 (1986).
          This Court’s analysis of claims of prosecutorial misconduct is determined by the
presence or absence of a contemporaneous objection to the alleged misconduct. For alleged acts
of prosecutorial misconduct resulting in a contemporaneous objection, this Court engages in a
two-step analysis--first asking whether misconduct occurred and, if so, whether the misconduct
was harmless. State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010). A conviction will
not be set aside for small errors or defects that have little, if any, likelihood of having changed
the results of trial. State v. Pecor, 132 Idaho 359, 367-68, 972 P.2d 737, 745-46 (Ct. App. 1998).
Where prosecutorial misconduct is shown, the test for harmless error is whether the appellate
court can conclude, beyond a reasonable doubt, that the result of the trial would have been the
same absent the misconduct. State v. Severson, 147 Idaho 694, 716, 215 P.3d 414, 436 (2009);
Field, 144 Idaho at 572, 165 P.3d at 286; Pecor, 132 Idaho at 368, 972 P.2d at 746.
          Closing argument serves to sharpen and clarify the issues for resolution by the trier of
fact in a criminal case. State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007).
Its purpose is to enlighten the jury and to help the jurors remember and interpret the evidence.
Id.; State v. Reynolds, 120 Idaho 445, 450, 816 P.2d 1002, 1007 (Ct. App. 1991). Both sides
have traditionally been afforded considerable latitude in closing argument to the jury and are
entitled to discuss fully, from their respective standpoints, the evidence and the inferences to be
drawn therefrom. Sheahan, 139 Idaho at 280, 77 P.3d at 969; Phillips, 144 Idaho at 86, 156 P.3d
at 587.
          Considerable latitude, however, has its limits, both in matters expressly stated and those
implied. Closing argument should not mock or include disparaging comments about opposing
counsel. Sheahan, 139 Idaho at 280, 77 P.3d at 969; State v. Page, 135 Idaho 214, 223, 16 P.3d
890, 899 (2000); State v. Brown, 131 Idaho 61, 69, 951 P.2d 1288, 1296 (Ct. App. 1998); State v.
Baruth, 107 Idaho 651, 657, 691 P.2d 1266, 1272 (Ct. App. 1984). Nor should closing argument
include disparaging comments about opposing counsel’s argument. State v. Timmons, 145 Idaho
279, 290, 178 P.3d 644, 655 (Ct. App. 2007). In Timmons, the prosecutor stated during closing
argument that “the defendant’s argument that this is simply a case of going after somebody
because their child doesn’t dress well, doesn’t have money, I think that argument speaks for



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itself.” Id. This Court determined that this comment disparaged defense counsel’s argument and
was therefore improper.1 Id.
       As the State notes, this Court has distinguished between comments that disparage a
defense attorney personally and comments regarding defense theories. For instance, in State v.
Norton, 151 Idaho 176, 188-89, 254 P.3d 77, 89-90 (Ct. App. 2011), we held that while
prosecutors should not include disparaging comments about opposing counsel during closing
argument, it was not prosecutorial misconduct to refer to the defense arguments as red herrings
and smoke and mirrors.
       Here, the prosecutor stated, “That’s the argument is that we don’t want Officers to
investigate anything. We don’t want them to protect the public. We don’t want them to prevent
crime.” Defense counsel objected, claiming that the prosecutor’s statements misrepresented
defense counsel’s argument. This Court agrees. Similar to the prosecutor in Timmons, the
prosecutor in this case exaggerated and mischaracterized defense counsel’s argument and, in
doing so, disparaged defense counsel’s argument. While the prosecutor did not personally
disparage defense counsel, the prosecutor went above and beyond describing or commenting on
the defense theories. Instead, the prosecutor created fictional theories and attributed them to
defense counsel. Rather than merely describe the defense theories with terms such as “red
herrings” or “smoke and mirrors” like the remarks in Norton, the prosecutor here blatantly
exaggerated, misrepresented, and mischaracterized defense counsel’s argument. The prosecutor
suggested defense counsel condemns police investigation, protection of the public, and crime
prevention. The remarks were therefore improper and amount to prosecutorial misconduct.
       The next issue, then, is whether the prosecutorial misconduct was harmless. Again, the
test here is whether the appellate court can conclude, beyond a reasonable doubt, that the result
of the trial would have been the same absent the misconduct. We reach such a conclusion.
Flowerdew asserts that the jury may have convicted him in part because it had an “emotional
dislike of defense counsel’s ‘unreasonable’ argument as a result of the prosecutor’s
misrepresentation of defense counsel’s arguments.” However, the jury heard Officer Cowell
testify that Flowerdew kneed him. While neither of the other officers witnessed the kneeing,

1
         Defense counsel in Timmons did not object to the prosecutor’s comment, however. State
v. Timmons, 145 Idaho 279, 290, 178 P.3d 644, 655 (Ct. App. 2007). The error could have been
cured by an objection and a jury instruction to base its verdict solely on the evidence presented at
trial. Id.
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Agent Grainger heard Officer Cowell cry out in pain. Moreover, Sergeant Strangio heard a
blood-curdling scream. Based on this evidence, we conclude, beyond a reasonable doubt, that
the result of the trial would have been the same absent the prosecutorial misconduct.
       Additionally, closing argument should not refer to facts not in evidence. Phillips, 144
Idaho at 86, 156 P.3d at 587; State v. Martinez, 136 Idaho 521, 525, 37 P.3d 18, 22 (Ct. App.
2001); State v. Cortez, 135 Idaho 561, 565-66, 21 P.3d 498, 502-03 (Ct. App. 2001); State v.
Lovelass, 133 Idaho 160, 169, 938 P.2d 233, 242 (Ct. App. 1999). Flowerdew maintains the
prosecutor argued facts not in evidence during closing argument when the prosecutor stated that
“maybe the reason why he wanted the Officer to show him the methamphetamine because he
wanted to take that methamphetamine and run with that methamphetamine.”
       As discussed, attorneys have considerable latitude in closing argument and may discuss
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. In closing argument, the prosecutor is entitled to
argue all reasonable inferences from the evidence in the record. State v. Kuhn, 139 Idaho 710,
715, 85 P.3d 1109, 1114 (Ct. App. 2003).
       The trial record establishes that Officer Cowell, upon observing a bag with a clear crystal
substance on the car floor, told Flowerdew he was under arrest for possession of a controlled
substance. In response, Flowerdew asked, “What controlled substance?” Flowerdew then ran
away from the scene. The prosecutor made a reasonable inference from the evidence in the
record, arguing one reason as to why Flowerdew might ask to see the methamphetamine and then
run from the scene. Moreover, defense counsel offered her own theory about Flowerdew’s
actions during closing argument--“one could also see how running would be a motivation for
someone who’s being falsely accused . . . .” Given the considerable latitude in closing argument,
the prosecutor was permitted to respond with a reasonable inference from the evidence. Even if
the prosecutor’s comment amounted to misconduct, it was harmless because the jury acquitted
Flowerdew on the possession of a controlled substance charge.
       In sum, the district court erred by overruling Flowerdew’s objection to the description of
the defense’s argument, but the error was harmless. The district court did not err in overruling
Flowerdew’s objection to the prosecutor’s reasonable inference as to why Flowerdew may have
run from the scene.



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B.     Diagram
       Next, Flowerdew argues the district court erred in overruling his objection to the
admission of the diagram drawn by Officer Cowell. Flowerdew specifically contends that the
diagram was irrelevant and prejudicial and therefore inadmissible.
       Appellate courts review questions regarding admissibility of evidence using a mixed
standard of review. State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008). First,
whether the evidence is relevant is a matter of law that is subject to free review. Field, 144
Idaho at 569, 165 P.3d at 283. Second, we review the district court’s determination of whether
the probative value of the evidence outweighs its prejudicial effect for an abuse of discretion.
Stevens, 146 Idaho at 143, 191 P.3d at 221. When a trial court’s discretionary decision is
reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether
the lower court correctly perceived the issue as one of discretion; (2) whether the lower court
acted within the boundaries of such discretion and consistently with any legal standards
applicable to the specific choices before it; and (3) whether the lower court reached its decision
by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
       Here, the State offered the hand-drawn diagram for illustrative purposes. Flowerdew
maintains the diagram does not accurately depict the interior of the vehicle or Officer Cowell’s
view of the vehicle, since the diagram was drawn from a bird’s-eye view and does not show
everything that was inside the vehicle.      However, accuracy is not the standard governing
relevance of illustrative evidence; rather, the illustrative evidence must only be relevant to the
witness’s testimony. Stevens, 146 Idaho at 143, 191 P.3d at 221. For instance, in State v.
Raudebaugh, 124 Idaho 758, 864 P.2d 596 (1993), the Idaho Supreme Court affirmed a trial
court’s decision to admit a diagram offered through the testimony of a police officer. The
diagram depicted the defendant’s living room. Id. at 764, 864 P.2d at 602. Although the
diagram was not to scale, and although the police officer did not observe the entire living room
from where he was standing at the scene, the diagram was admitted because it was offered for
illustrative purposes and was relevant to the police officer’s testimony. Id.
       Similarly, here, the diagram was relevant to Officer Cowell’s testimony. Officer Cowell
testified about the location of the plastic baggies containing methamphetamine in the vehicle,
and Flowerdew was charged with possession of a controlled substance. It is immaterial that the



                                                 7
diagram was drawn from a bird’s-eye view. The diagram was properly admitted because it was
relevant to Officer Cowell’s testimony.
        Flowerdew argues for a different standard--maintaining that the diagram must depict
something that “a witness is unable, by means of words or gestures alone, to convey to a jury or
court an accurate understanding of the physical facts with which his testimony is
concerned . . . .” Hook v. Horner, 95 Idaho 657, 660, 517 P.2d 554, 557 (1973). However, that
case is a civil case. Moreover, Flowerdew cites Hook out of context. The full quote is that
“where a witness is unable, by means of words or gestures alone, to convey to a jury or court an
accurate understanding of the physical facts with which his testimony is concerned, he may make
a drawing or adopt a drawing of another, as a means of portraying to the court facts which are
within his knowledge.” Id. Hook does not stand for the proposition that an exhibit, such as a
diagram, must depict something that the testifying witness is unable to convey to a jury through
words or gestures. Rather, Hook explains that a witness may make a drawing to convey facts
within his knowledge if words or gestures are insufficient. Id. Thus, the diagram in this case
was not required to depict something that Officer Cowell was unable to convey to a jury through
words or gestures.     As discussed, the diagram need only be relevant to Officer Cowell’s
testimony. Moreover, in Hook, the Court found that the trial court properly rejected an exhibit
because it was “not utilized to portray to the court facts within the knowledge of [the testifying
witness].” Id. Here, however, Officer Cowell used the diagram to aid his testimony concerning
facts   within   his   knowledge--specifically,       the   location   of   the   baggies   containing
methamphetamine that he discovered in the vehicle.
        Flowerdew further argues that even if the diagram is relevant, its minimal probative value
is substantially outweighed by its prejudicial effect on the jury. This Court is not persuaded that
the district court abused its discretion in admitting the diagram over prejudicial concerns.
Flowerdew asserts that the diagram was inaccurate. Such concerns, however, can be addressed
through cross-examination of Officer Cowell. Flowerdew also asserts that the X marks on the
diagram were prejudicial because they expressed Officer Cowell’s conclusions about the
contraband that he discovered. But the markings indicate mere physical location of items--not
conclusions about whether Flowerdew possessed methamphetamine. Accordingly, the district
court did not abuse its discretion in admitting the diagram over prejudicial concerns.



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       Even if the diagram was improperly admitted, the error is harmless. The jury acquitted
Flowerdew on the possession of a controlled substance charge. Flowerdew, however, maintains
that admitting the diagram served to bolster Officer Cowell’s credibility.
       The test here is whether this Court can find that the result would be the same without the
alleged error. State v. Almaraz, 154 Idaho 584, 598, 301 P.3d 242, 256 (2013); State v. Smith,
159 Idaho 15, 27, 355 P.3d 644, 656 (Ct. App. 2015). Even without admitting the diagram, the
result would be the same--the jury clearly found sufficient evidence of obstructing and resisting
an officer and battery on certain personnel. Officer Cowell was not the only officer who
testified, so Flowerdew’s convictions did not hinge solely on Officer Cowell’s testimony. Agent
Grainger testified that he heard Officer Cowell cry out in pain, and Sergeant Strangio testified
that he heard a blood-curdling scream. Moreover, the fact that the jury acquitted Flowerdew on
the possession of a controlled substance charge, the only charge for which Officer Cowell’s
diagram was relevant, illustrates that the jury did not assign much significance to the diagram.
Thus, while the diagram was properly admitted, any error from an improper admission would
have been harmless.
C.     Accumulated Errors
       Lastly, Flowerdew contends that the cumulative error doctrine applies here, necessitating
a reversal of his conviction. 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. State v. Adamcik,
152 Idaho 445, 483, 272 P.3d 417, 455 (2012).           However, a necessary predicate to the
application of the doctrine is a finding of more than one error. Id. Here, Flowerdew has
demonstrated only one error--the prosecutor’s mischaracterization of defense counsel’s
argument. Flowerdew has failed to demonstrate at least two errors, a necessary predicate to the
application of the cumulative error doctrine.
                                                III.
                                         CONCLUSION
       The district court erred in overruling an objection to the prosecutor’s mischaracterization
of defense counsel’s closing argument. However, the error was harmless because we can
conclude, beyond a reasonable doubt, that the result of the trial would have been the same absent
the misconduct. The district court properly overruled an objection to the prosecutor’s theory on
why Flowerdew ran from the scene because the prosecutor did not argue facts that were not in

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evidence. Flowerdew therefore failed to demonstrate prosecutorial misconduct. The district
court did not err in ruling that the diagram drawn by Officer Cowell was relevant to Officer
Cowell’s testimony. And because the diagram was not prejudicial, the district court did not
abuse its discretion in admitting the relevant diagram. Finally, Flowerdew failed to demonstrate
at least two errors, so the cumulative error doctrine does not apply. Accordingly, we affirm
Flowerdew’s judgment of conviction.
       Chief Judge MELANSON and Judge HUSKEY CONCUR.




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