               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42196

STATE OF IDAHO,                                 )    2016 Unpublished Opinion No. 353
                                                )
       Plaintiff-Respondent,                    )    Filed: January 28, 2016
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
JEFFREY LEWIS DUNN,                             )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Defendant-Appellant.                     )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bonneville County. Hon. Dane H. Watkins Jr., District Judge.

       Judgment of conviction, vacated; and case remanded.

       Sara B. Thomas, State Appellate Public Defender; Elizabeth A. Allred, Deputy
       Appellate Public Defender, Boise, for appellant.

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

HUSKEY, Judge
       Jeffrey Lewis Dunn appeals from his judgment of conviction for three counts of lewd
conduct with a minor child. Dunn asserts the district court erred in admitting evidence pursuant
to Idaho Rule of Evidence 404(b). In addition, Dunn alleges the State committed prosecutorial
misconduct during sentencing and the Idaho Criminal Rule 35 motion hearing by commenting on
his failure to participate in a psychosexual evaluation. For the reasons set forth below, we vacate
the judgment of conviction and remand the matter for further proceedings.
                                                I.
               FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       Dunn was charged with three counts of lewd conduct with a minor child under sixteen
and the sentencing enhancement for repeat sex offenders. Each count involves a different
victim: S.E., A.D., and M.T. Following a trial, the jury returned a guilty verdict on all three
counts and Dunn pleaded guilty to the sentencing enhancement. Dunn was sentenced to three

                                                1
concurrent fixed-life sentences. Dunn’s I.C.R. 35 motion was denied following a hearing before
the district court. Dunn appeals the admission of I.R.E. 404(b) evidence and for the first time on
appeal, he alleges the State committed prosecutorial misconduct during sentencing and the
I.C.R. 35 motion hearing.
         In a pretrial motion in limine and notice of intent to utilize I.R.E. 404(b) evidence, the
State argued for the admission of I.R.E. 404(b) evidence related to Dunn’s 1995 conviction for
lewd conduct because the facts of that case tended to show a common scheme or plan consistent
with the charged conduct involving the three named victims: S.E., A.D., and M.T. The district
court granted the motion allowing the admission of I.R.E. 404(b) evidence about Dunn’s abuse
of C.R., his daughter, the named victim in the 1995 case. The district court made factual
findings of the similarities between the facts of C.R.’s case and the facts in each of the charges in
this case including: the age of C.R. and the victims in this case when the abuse occurred; Dunn’s
role as a father to C.R. and a father-figure to the victims in this case; and the consistency in the
type of lewd conduct committed against C.R. and the victims in this case. The court determined:
(1) there was sufficient evidence to establish the prior bad act as fact; and (2) the evidence was
relevant for purposes other than propensity and was admissible pursuant to I.R.E. 404(b). The
court stated:
       The Court can make findings that the alleged victims are of similar ages, two of
       them a year or so apart. The acts are similar enough to draw 404(b) in as a
       common plan or scheme, and the manner in which the allegations took place have
       similarity to previous incidences involving the daughter. And so the Court will
       allow testimony from [C.R.] as to the prior offenses.
        The court did not conduct an analysis under the I.R.E. 403 balancing test and did not
make a finding that C.R.’s testimony would not be unduly prejudicial to Dunn. Dunn argues the
district court erred by failing to consider the prejudicial nature of the I.R.E. 404(b) evidence.
        The I.R.E. 404(b) evidence was presented to the jury during voir dire, the State’s
opening statement, Dunn’s opening statement, C.R.’s testimony, and the testimony of both
Detective Lawrence and Detective McKenna. While selecting the jury, the State asked potential
jurors, “You’re going to hear this was done before. Okay. And he’s accused of doing it again.
Now, he’s entitled to a fair and impartial juror and that (inaudible). Could you be fair and
impartial given that information?” The prosecutor stated to another juror, “You’re going to hear
evidence that he’s done it before. You’re going to hear that. That’s what we’re talking about


                                                  2
here. You’re going to hear that it was done 18 years ago.” Another juror asked, “Was there an
actual conviction before or was it just an accusation?” The prosecutor responded:
       We’re not going to go over that right now. I just simply posed the issue based
       upon (inaudible) I want you to get a sense of the fact that his daughter’s going to
       take the stand and say he did it to her. You’re going to hear his statements from
       1995 about what happened back in 1995.
Dunn did not object to this line of questioning.
       During Dunn’s voir dire of the jury panel, Dunn addressed this line of questioning with
some of the jurors and then stated:
       Mr. Clark brought this elephant--or introduced the elephant that was already in
       the room regarding the nature of the charges here. And then he mentioned that
       Mr. Dunn has a prior history involving these types of allegations. And so because
       that elephant is in the room I might as well address it also, and let you know
       nearly two decades ago Mr. Dunn was convicted of a similar offense.
               Paid his price to society. He was sentenced. He successfully completed
       all of the terms and conditions that were placed on him. His punitive measures
       regarding that sentence and moved on with his life, and now we’re dealing with
       these allegations again.
Following this statement, the court excused at least seven jurors who indicated they would not be
able to be impartial knowing that Dunn had a prior conviction.
       In the State’s opening statement, the prosecutor again told the jury C.R. would testify
about her abuse and “[t]he purpose of hearing that is to draw the similarities between what he
had done to her and what was done to these girls.” The prosecutor also told the jury they would
hear from the detective that investigated C.R.’s case, and Det. McKenna would testify “about his
discussion with the defendant about what happened with [C.R.]. He’s going to tell you about his
conversation with the defendant involving these allegations. We’re going to discuss with you the
things he said about what he had done or not.”
       In the defense’s opening statement, counsel stated:
       Mr. Dunn is going to take the stand and he’s going to testify that yeah he’s been
       convicted of this in the past nearly 20 years ago . . . . In fact he’ll end up
       testifying that the reason he’s here at trial is because two decades ago he was
       guilty and now in 2013 he’s not.
       In the State’s case-in-chief, prior to C.R.’s testimony, Dunn renewed his objection to the
I.R.E. 404(b) evidence stating, “I believe if the court finds the evidence falls within some of the
enumerated exceptions of 404(b), I do believe the information to be presented today is so
prejudicial that it completely outweighs any probative value or practical value it would have

                                                   3
under the Idaho Rules of Evidence.” The court affirmed its ruling that the evidence was relevant
and admissible under the common scheme or plan exception to I.R.E. 404(b) based on the
testimony of the three victims and its understanding of the content of C.R.’s prospective
testimony. Again, the court did not apply the I.R.E. 403 balancing test and did not address
Dunn’s objection that the evidence was unduly prejudicial.           Thereafter, Dunn asserted a
“continuing objection” to the I.R.E. 404(b) testimony.
       C.R.’s testimony was not extensive and she was not overly cooperative with the State;
however, she did testify Dunn had performed “oral sex” on her, but he had not touched her with
his hand, and he did not have her touch him. She testified Dunn told her he committed the lewd
conduct for the purpose of “showing me that he loved me.” Following C.R.’s testimony, the
court provided the jury a limiting instruction consistent with I.R.E. 404(b).
       Detective Lawrence testified about the 1995 case investigation including how Dunn
admitted to numerous incidences of lewd conduct against C.R. and stated the lewd conduct was a
way to show C.R. that he loved her. Dunn did not object to any of this testimony.
       Detective McKenna testified about his investigation of this case and the interview he
conducted with Dunn. As Det. McKenna began testifying about Dunn’s statements regarding the
facts of the 1995 case, Dunn interrupted and suggested the court give the limiting instruction
prior to any further testimony. The court gave the instruction and Det. McKenna then testified
that Dunn admitted to being convicted of a crime against C.R. where he had fondled her and had
oral sex with her. The defense objected, stating:
              Your Honor, I’m going to object. I think we’re kind of beating a dead
       horse on this issue, and I argue this is cumulative. We had [C.R.] testify as to
       what he did. Detective Lawrence, who investigated the initial matter has testified
       about what happened. I don’t think that’s being disputed at this point.
In response, the State conceded the testimony may be cumulative but stated, “we’re also going to
draw some inconsistencies in the statements, which would be for impeachment purposes.”1 The
inconsistency arises from Dunn’s statements to Det. McKenna during the interview on the
current charges that the abuse committed against C.R. in 1995 occurred only one time for
approximately a minute and a half, which is not consistent with the underlying facts of the 1995


1
       In the motion in limine, the State did not indicate its intent to utilize the inconsistency of
Dunn’s statements in the two investigations or that it would attempt to impeach Dunn with the
inconsistent statements.
                                                 4
case. The State offered to re-phrase the question and the defense again objected, arguing the
testimony would go beyond the scope of the I.R.E. 404(b) ruling. The court sustained the
objection because the State’s attempt to impeach Dunn was premature.
       The State then re-phrased the question as follows: “Is that statement different than what
he told Detective Lawrence in 1995?” The defense objected, the court overruled the objection,
and Det. McKenna then testified that Dunn’s statement in this case about what happened in 1995
was not consistent with the statements made during the investigation of the 1995 charges.
       After the jury returned the guilty verdict on all three counts, the court set the matter for
sentencing. At the beginning of the sentencing hearing, the court noted it previously advised
Dunn of his Fifth Amendment rights and the consequences of not participating in the PSE. Dunn
and his counsel both agreed that Dunn understood and was ready to proceed with sentencing
without the PSE.
       During the State’s sentencing recommendations, the prosecutor stated, in part:
                The evidence against the defendant was overwhelming, and to this day, he
       continues to not own it, to the point--to the extent that he chooses to not give this
       Court mitigating information in a psychosexual evaluation.
                ....
                What fact does this Court have to suggest he should be living next door to
       anyone again?
                What fact does this Court have to suggest he ought to be allowed to be the
       father figure to any teenage child again?
                Because when it comes right down to it, that’s the question we’re asking
       ourselves, isn’t it? I mean, we’re asking ourselves how comfortable are we with
       the risk of him being the father figure to anyone else?
                I just simply can’t do it.
                We’re going to ask the Court impose a life sentence, ask that that be
       fixed . . . .
       In formulating the sentence, the court considered the PSI, the testimony of the victims,
the corroborating testimony of C.R., the nature of the offense, the type of lewd conduct, Dunn’s
role as a father figure, and his prior criminal history. However, the court also stated:
              I’ve also considered the fact that I have no evidence before me to suggest
       that you are treatable in the community and that you do not pose a threat to the
       community. And those are considerations for the Court.
       During the I.C.R. 35 motion hearing, the State opposed the motion making a similar
argument about the lack of a PSE and the court thereafter denied the motion.



                                                 5
                                               II.
                                          ANALYSIS
A.     Common Scheme or plan Evidence
       On appeal, Dunn argues the district court erred in admitting I.R.E. 404(b) common
scheme or plan evidence. He further argues the district court erred in failing to conduct the
I.R.E. 403 balancing test to determine whether the evidence was unduly prejudicial. He asserts
that had the court engaged in this balancing test, the court would have determined the testimony
was unduly prejudicial and therefore, inadmissible.
       The State argues that while the district court did not explicitly state its I.R.E. 403
balancing analysis on the record, its determination that the evidence was relevant and admissible
implies a determination that the evidence was more probative than prejudicial.
       “A trial court has ‘broad discretion’ in determining whether to admit or exclude evidence,
‘and its judgment in the fact finding role will only be disturbed on appeal when there has been a

clear abuse of discretion.’             ” State v. Joy, 155 Idaho 1, 6, 304 P.3d 276, 281 (2013)
(quoting State v. Watkins, 148 Idaho 418, 421, 224 P.3d 485, 488 (2009)). “[T]he trial court’s
conclusion that the probative value of the evidence is not outweighed by its unfair prejudice is
reviewed under an abuse of discretion standard.” State v. Tapia, 127 Idaho 249, 254, 899 P.2d
959, 964 (1995). This Court determined:
       [w]hether the district court abused its discretion by examining: (1) whether the
       court correctly perceived the issue as one of discretion; (2) whether the court
       acted within the outer boundaries of its discretion and consistently within the
       applicable legal standards; and (3) whether the court reached its decision by an
       exercise of reason.
State v. Shackelford, 150 Idaho 355, 363, 247 P.3d 582, 590 (2010).
       I.R.E. 404(b) provides:
       Evidence of other crimes, wrongs, or acts is not admissible to prove the character
       of a person in order to show that the person acted in conformity therewith. It
       may, however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
       or accident, provided that the prosecution in a criminal case shall file and serve
       notice reasonably in advance of trial, or during trial if the court excuses pretrial
       notice on good cause shown, of the general nature of any such evidence it intends
       to introduce at trial.
       This rule prohibits introduction of evidence of acts other than the crime for which a
defendant is charged if the act’s probative value is entirely dependent upon its tendency to

                                                6
demonstrate the defendant’s propensity to engage in such behavior. State v. Grist, 147 Idaho 49,
54, 205 P.3d 1185, 1190 (2009); see also State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262
(Ct. App. 2002). Of course, evidence of another crime, wrong, or act may implicate a person’s
character while also being relevant and admissible for some permissible purpose, such as those
listed in the rule. See State v. Pepcorn, 152 Idaho 678, 688-89, 273 P.3d 1271, 1281-82 (2012).
       When determining the admissibility of evidence to which an I.R.E. 404(b) objection has
been made, the trial court must first determine whether there is sufficient evidence of the other
acts that a reasonable jury could believe the conduct actually occurred. If so, then the court must
consider: (1) whether the other acts are relevant to a material and disputed issue concerning the
crime charged, other than propensity; and (2) whether the probative value is substantially
outweighed by the danger of unfair prejudice. Grist, 147 Idaho at 52, 205 P.3d at 1188; State v.
Parmer, 147 Idaho 210, 214, 207 P.3d 186, 190 (Ct. App. 2009). On appeal, this Court defers to
the trial court’s determination that there is sufficient evidence of the other acts if it is supported
by substantial and competent evidence in the record. Parmer, 147 Idaho at 214, 207 P.3d at 190.
The trial court’s balancing of the probative value of the evidence against the danger of unfair
prejudice will not be disturbed unless we find an abuse of discretion. State v. Norton, 151 Idaho
176, 190, 254 P.3d 77, 91 (Ct. App. 2011).
       Evidence that is relevant to a material and disputed issue concerning the crime charged is
generally admissible. State v. Stevens, 146 Idaho 139, 143, 191 P.3d 217, 221 (2008). Evidence
is relevant if it has any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the evidence.
I.R.E. 401; Stevens, 146 Idaho at 143, 191 P.3d at 221. Whether a fact is of consequence or
material is determined by its relationship to the legal theories presented by the parties. State v.
Johnson, 148 Idaho 664, 671, 227 P.3d 918, 925 (2010). We review questions of relevance de
novo. State v. Raudebaugh, 124 Idaho 758, 764, 864 P.2d 596, 602 (1993); State v. Aguilar, 154
Idaho 201, 203, 296 P.3d 407, 409 (Ct. App. 2012).
       The Idaho Supreme Court has held a district court abuses its discretion when it fails to
conduct the I.R.E. 403 balancing test before admitting or excluding evidence. State v. Parker,
157 Idaho 132, 139, 334 P.3d 806, 813 (2014). In Parker, the Court found that a district court is
required to address “whether the probative value is substantially outweighed by one of the
considerations listed” in I.R.E. 403 and a failure to do so is an abuse of discretion because the

                                                  7
court did not act consistently within the applicable legal standards. Parker, 157 Idaho at 139,
334 P.3d at 813 (citing State v. Ruiz, 150 Idaho 469, 471, 248 P.3d 720, 722 (2010)).
       At issue in this case is the common scheme or plan exception to I.R.E. 404(b). In Grist,
the Supreme Court noted that “where relevant to the credibility of the parties, evidence of a
common criminal design is admissible.” Grist, 147 Idaho at 54, 205 P.3d at 1190 (quoting State
v. Moore, 120 Idaho 743, 746, 819 P.2d 1143, 1146 (1991)). Neither party cites to State v. Joy,
155 Idaho 1, 304 P.3d 276 (2013), and the district court did not rely on this case when it issued
its decision on the State’s motion in limine2 or when Dunn raised his objection to this evidence
during trial. In Joy, the Idaho Supreme Court examined the common scheme or plan exception
to I.R.E. 404(b) that allows for the admission of evidence of prior conduct when used to
demonstrate the charged conduct is part of a common scheme or plan. Joy, 155 Idaho at 8, 304
P.3d at 283; I.R.E. 404(b). The Court held:
       Thus, to be admissible under Rule 404(b), evidence of prior misconduct must
       show more than a superficial similarity to the nature and details of the charged
       conduct, but must instead show that the defendant’s charged and uncharged
       conduct is linked in a way that permits the inference that the prior conduct was
       planned as part of a course of conduct leading up to the charged offense.
Joy, 155 Idaho at 10, 304 P.3d at 285.
       The Joy Court relied on its prior rulings in Johnson, 148 Idaho at 667, 227 P.3d at 921
and Grist, 147 Idaho at 52, 205 P.3d at 1188 where the Court “explained that evidence showing
only ‘generalized similarities,’ between charged and uncharged conduct, such as the victim’s sex
or age, or the means by which a defendant gains access to them ‘is more accurately described as
inadmissible evidence merely demonstrating the defendant’s predisposition for opportunistically
molesting children.’” Joy, 155 Idaho at 10, 304 P.3d at 285 (citing Johnson, 148 Idaho at 669
n.5, 227 P.3d at 923 n.5; Grist, 147 Idaho at 54, 205 P.3d at 1190).
       In Grist, the Court noted that I.R.E. 404(b) had its source in common law.
       The policy underlying the common law rule was the protection of the criminal
       defendant. See 22 Wright & Graham, Federal Practice and Procedure: Evidence,
       § 5239, pp. 436-439. “The prejudicial effect of [character evidence] is that it
       induces the jury to believe the accused is more likely to have committed the crime
       on trial because he is a man of criminal character.” State v. Wrenn, 99 Idaho 506,


2
      State v. Joy, 155 Idaho 1, 304 P.3d 276 (2013) was issued on June 25, 2013, and the
motion in limine hearing was held on July 8, 2013, and the court’s trial ruling occurred on
November 20, 2013.
                                                8
       510, 584 P.2d 1231, 1235 (1978). Character evidence, therefore, takes the jury
       away from their primary consideration of the guilt or innocence of the particular
       crime on trial. Id. The drafters of I.R.E. 404(b) were careful to guard against the
       admission of evidence that would unduly prejudice the defendant, while still
       allowing the prosecution to present probative evidence.
Grist, 147 at 49, 205 P.3d at 1188. Thus, inadmissible I.R.E. 404(b) evidence, by its very nature,
is unduly prejudicial.
       Dunn acknowledges that his counsel: (1) conceded the I.R.E. 404(b) evidence was
proven as fact and this is not challenged on appeal; and (2) may have conceded the evidence may
be admissible to prove opportunity, intent, preparation, and plan and therefore, Dunn does not
separately challenge the admittance of the evidence on relevance grounds.
       Nonetheless, a determination of whether the evidence was admissible was a necessary
predicate determination as to whether the evidence was unduly prejudicial. Additionally, the
district court has an obligation to ensure that irrelevant evidence is not admitted. The Supreme
Court noted in State v. Orellana-Castro, 158 Idaho 757, 763, 351 P.3d 1215, 1221 (2015):
       As we stated in Grist, “We once again caution the trial courts of this state that
       they must carefully examine evidence offered for the purpose of demonstrating
       the existence of a common scheme or plan in order to the [sic] determine whether
       the requisite relationship exists.” 147 Idaho at 55, 205 P.3d at 1191. Trial courts
       must realize that following the law as set forth in Grist and in Johnson will
       prevent the alleged victims from having to go through a trial a second time.
       Here, the district court’s I.R.E. 404(b) analysis was limited to the determination of
whether the prior bad act could be established as fact (which it could) and whether the prior
conduct was so similar to the facts of this case to justify the finding of common scheme or plan.
That is, the district court’s analysis only examined the similarities between the testimony of C.R.
as compared to the testimony of the three named victims in this case--an analysis the Idaho
Supreme Court has held to be insufficient and improper for a finding of common scheme or plan.
The district court did not recognize that in order to conclude the I.R.E. 404(b) evidence was
admissible (and necessarily more probative than prejudicial) it was required to find the prior
conduct was “planned as part of a course of conduct leading up to the charged offense.” There is
no evidence in the record to establish that Dunn’s 1995 conviction was so related to the instant
offense that proof of the 1995 conviction permitted the inference that the 1995 conviction was
planned as part of a course of conduct leading up to the instant offense. Instead, the district
court’s analysis was simply a recitation of similarities demonstrating Dunn’s tendency and


                                                9
propensity to commit lewd conduct against victims of similar age and in a similar manner and
this type of an analysis was specifically rejected by the Joy Court. Therefore, the district court’s
decision to admit the I.R.E. 404(b) evidence was not within the applicable legal standards and
was an abuse of discretion.
       This error is significant because of the district court’s failure to engage in the I.R.E. 403
balancing test, despite Dunn’s objections that the evidence was unduly prejudicial. Because the
evidence was not relevant or admissible under Joy, it cannot be said that its admission would be
more probative than prejudicial under the I.R.E. 403 balancing test. This is true especially given
the common law policy of excluding unduly prejudicial character evidence. Additionally, the
court’s failure to explicitly find the I.R.E. 404(b) evidence was more probative than prejudicial
did not comply with the applicable legal standards as set forth in Parker. By failing to engage in
the I.R.E. 403 balancing test prior to admitting the testimony of C.R., Det. Lawrence, and Det.
McKenna as described above, the district court acted outside the applicable legal standards and
thus, abused its discretion.
B.     Detective McKenna’s Testimony Regarding Dunn’s Inconsistent Statements
       On appeal, Dunn argues the district court erred in permitting Det. McKenna to testify
about Dunn’s statements minimizing the extent of the lewd conduct committed against
C.R. When the State elicited this testimony, it noted the intent was to impeach Dunn with the
inconsistency of the statements Dunn made in 1995 about the lewd conduct committed against
C.R., as opposed to his statements about that case during the investigation of this matter. Dunn
objected to this testimony because it was both cumulative and improper under the court’s
I.R.E. 404(b) ruling because the State had not put Dunn on notice that the inconsistent statements
would be utilized as I.R.E. 404(b) evidence.
       The initial question is whether Dunn’s statements about the 1995 case were admissions of
a past crime, wrong, or act. Since lewd conduct with a minor is prohibited under Idaho Code
§ 18-1508, his statements regarding that conduct would be categorized as I.R.E. 404(b) evidence.
       Next we must consider whether the State complied with the notice requirements of
I.R.E. 404(b) which compels the State to provide notice “of the general nature of any such
evidence it intends to introduce at trial.” I.R.E. 404(b). In State v. Sheldon, 145 Idaho 225, 230,
178 P.3d 28, 33 (2008), the district court allowed the State to elicit at trial that Sheldon admitted
he had dealt drugs in the past. Id. at 229, 178 P.3d at 32. However, the State failed to comply

                                                 10
with the notice requirements of I.R.E. 404(b). Sheldon, 145 Idaho at 229, 178 P.3d at 32. The
Idaho Supreme Court held, “compliance with I.R.E. 404(b) is mandatory and a condition
precedent to admission of other acts evidence. Because the State failed to comply with the
notice provisions of I.R.E. 404(b), Sheldon’s statements were inadmissible.” Sheldon, 145 Idaho
at 230, 178 P.3d at 33.
       Here, it is undisputed that the I.R.E. 404(b) notice did not address Dunn’s inconsistent
statements about the facts of the 1995 case involving C.R. and consequently, Dunn is correct that
the testimony was outside the scope of the I.R.E. 404(b) ruling. Detective McKenna’s testimony
on this issue was inadmissible both because the State failed to comply with the I.R.E. 404(b)
notice requirements and because, as noted above, the testimony was not relevant. As a result, the
district court erred in allowing Det. McKenna to testify about Dunn’s prior inconsistent
statements.
C.     Harmless Error
       Because the district court erred in admitting both the testimony about the facts and
circumstances of the 1995 case and Dunn’s inconsistent statements regarding that case, we must
determine whether the error was harmless.
       Dunn argues the admission of the evidence discussed above is not harmless error because
the State cannot show the jury was not influenced by the extensive evidence and discussion of
the prior bad acts and the prejudicial nature of the prior bad act testimony. Dunn argues the
limiting instructions given to the jury were not adequate to overcome the prejudice caused by
this evidence.   Dunn further argues the State emphasized the testimony of Det. McKenna
(including the testimony excluded by the court) in closing arguments, in violation of the court’s
order and the limiting instructions.
       In response, the State argues the admission of this evidence was harmless error because
there was substantial and competent evidence from the three victims in this case to support the
jury verdict.
       Error is not reversible unless it is prejudicial. State v. Stoddard, 105 Idaho 169, 171, 667
P.2d 272, 274 (Ct. App. 1983).         With limited exceptions, even constitutional error is not
necessarily prejudicial error. Id. Thus, we examine whether the alleged error complained of in
the present case was harmless. See State v. Lopez, 141 Idaho 575, 578, 114 P.3d 133, 136 (Ct.
App. 2005). An improper evidentiary ruling may be deemed to be harmless if the error does not

                                                11
affect a substantial right of the defendant. Parker, 157 Idaho at 139-140, 334 P.3d at 813-814.
In such a case, the burden is on the State to “prove ‘beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.’” Id. at 140, 334 P.3d at 814 (citing
State v. Perry, 150 Idaho 209, 221, 245 P.3d 961, 973 (2010)).
       We cannot conclude the admission of the I.R.E. 404(b) evidence or the evidence about
the inconsistent statements was harmless error. As noted above, this inadmissible evidence
permeated the trial; the jury heard about the 1995 conviction in voir dire, three of the State’s
seven witnesses testified as to this evidence, and the State argued this evidence in both the
opening statement and closing argument. That evidence, in combination with Det. McKenna’s
testimony about the inconsistent statements, affected all aspects of the trial. The district court
erred in admitting evidence that was both inadmissible under Joy and not properly analyzed for
unfair prejudice pursuant to I.R.E. 403. We cannot conclude this evidence did not contribute to
the jury’s verdict of guilt. Therefore, the judgment of conviction must be vacated
D.     Prosecutorial Misconduct at the Sentencing Hearing and Idaho Criminal Rule 35
       Hearing
       Although we have vacated the judgment of conviction, we provide the following for
direction on remand.
       Dunn made no contemporaneous objection to the prosecutor’s statements during the
sentencing and I.C.R. 35 motion hearings.        However, he now argues the State’s alleged
prosecutorial misconduct during sentencing and the I.C.R. 35 motion hearing amounts to
fundamental error because the prosecutor commented on Dunn’s decision to not participate in
the PSE in violation of his constitutional right to remain silent. Generally, issues not raised
below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 824
P.2d 123 (1991). 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 at 571, 165 P.3d at 285; State v. Haggard, 94
Idaho 249, 251, 486 P.2d 260, 262 (1971). In State v. Perry, the Idaho Supreme Court clarified
the fundamental error doctrine as it applies to allegations of prosecutorial misconduct. If the
alleged misconduct was not followed by a contemporaneous objection, an appellate court should
reverse 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


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reference to any additional information not contained in the appellate record; and (3) affected the
outcome of the trial proceedings. Perry, 150 Idaho at 226, 245 P.3d at 978.
       This Court recently addressed the constitutionality of drawing adverse inferences at
sentencing from a defendant’s refusal to participate in a PSE in State v. Jimenez, ___ Idaho ___,
___ P.3d ___ (Ct. App. Dec. 4, 2015) (review pending). In Jimenez, we held a court may
consider “a defendant’s invocation of his or her Fifth Amendment privilege to refuse
participation in [a PSE] as part of determining an appropriate sentence.” Id. at ___, ___ P.3d at
___. The Court based its holding on the United States Supreme Court’s decision in Mitchell v.
United States, 526 U.S. 314 (1999) and White v. Woodall, ___ U.S. ___, 134 S. Ct. 1697 (2014)
and on several lower court decisions interpreting Mitchell. In Mitchell, the Supreme Court
prohibited judges from drawing adverse inferences from a criminal defendant’s silence at
sentencing, but explicitly limited the prohibition “to factual determinations respecting the
circumstances and details of the crime.” Mitchell, 526 U.S. at 328. The White Court held this
limitation “leaves open the possibility that some inferences might permissibly be drawn from a
defendant’s penalty-phase silence.” White, ___ U.S. at ___, 134 S. Ct. at 1703 (holding that
Mitchell cannot be read to require a blanket no-adverse-inference instruction at every penalty-
phase trial). Accordingly, “some lower courts have noted Mitchell’s narrow holding and have
held that sentencing courts may consider a defendant’s silence or refusal to answer questions in
determining an appropriate sentence.” Jimenez, ___ Idaho at ___, ___ P.3d at ___. Thus, in
Jimenez, Idaho joined “those jurisdictions that have adopted a narrow application of Mitchell,
prohibiting only negative factual inferences as to the circumstances and details of the crime
based upon a defendant’s silence.” Id.
       Dunn argues his constitutional rights were violated by the State’s arguments because the
statements were intended to encourage the court to impose a harsher sentence because Dunn
exercised his Fifth Amendment right and refused to participate in the PSE. In support of his
claim, Dunn relies on the court’s comments at sentencing and the I.C.R. 35 motion hearing
which indicate the court drew adverse inferences from his exercise of his Fifth Amendment right
regarding a lack of information about Dunn’s risk to re-offend. He argues because of the State’s
comments, the court imposed a harsher sentence.
       The State argues Dunn has failed to support his arguments with legal authority that
prohibits the State from commenting on the lack of a PSE at sentencing and therefore, this

                                                13
argument should not be considered on appeal. In addition, the State argues Dunn has failed to
show these comments violated Dunn’s constitutional rights and that Dunn has failed to show the
court relied on the State’s comments when fashioning the sentence imposed. The State argues
the court’s comments prior to issuing the sentence show the court relied on proper
considerations--criminal history, the nature of the crime, and the Toohill3 factors.
       In accordance with Jimenez, we hold that any comments made by the prosecutor at
sentencing could not amount to prosecutorial misconduct because even if the State had
encouraged the court to draw certain conclusions from Dunn’s refusal to participate in the PSE,
the court was legally permitted to draw such conclusions based on Dunn’s refusal. In other
words, the State only encouraged such action as the court was already permitted to take.
Encouraging legally permissible conclusions cannot be misconduct.
       A PSE assists the district court in fashioning an appropriate sentence. It is an evaluative
tool that aids in gauging a defendant’s propensity for future violations. In this case, the district
court noted it could not assess Dunn’s propensity for future violations and risk to society without
the PSE. Thus, any adverse inferences the court drew from the refusal to participate in the PSE
necessarily pertained to Dunn’s propensity for future violations and risk to society, not the
circumstances and details of his crime.         Because the district court did not draw any
impermissible adverse inferences from the refusal to participate in the PSE, it did not violate
Dunn’s Fifth Amendment right against self-incrimination and therefore, did not deprive him of
due process in fashioning his sentence. The district court did not violate Dunn’s unwaived
constitutional rights, there was no fundamental error, and we need not address the last two
prongs of the Perry analysis.
                                                III.
                                         CONCLUSION
       The Court holds the district court abused its discretion when it admitted the I.R.E. 404(b)
evidence regarding the 1995 case and Dunn’s inconsistent statements. Such error was not
harmless and we vacate Dunn’s conviction and remand the case for further proceedings
consistent with this opinion. The Court further holds the prosecutor did not commit misconduct
in making adverse inferences based on Dunn’s lack of participation in the PSE.
       Judge GUTIERREZ and Judge GRATTON CONCUR.

3
       State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct. App 1982).
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