              IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                     Docket No. 46318

STATE OF IDAHO,                               )
                                              )    Filed: February 4, 2020
       Plaintiff-Respondent,                  )
                                              )    Karel A. Lehrman, Clerk
v.                                            )
                                              )    THIS IS AN UNPUBLISHED
JANELL OZUNA,                                 )    OPINION AND SHALL NOT
                                              )    BE CITED AS AUTHORITY
       Defendant-Appellant.                   )
                                              )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Bradly S. Ford, District Judge.

       Judgment of conviction for felony possession of methamphetamine and
       misdemeanor possession of drug paraphernalia, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford,
       Deputy Appellate Public Defender, Boise, for appellant. Jenny C. Swinford
       argued.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
                 ________________________________________________

HUSKEY, Chief Judge
       Janell Ozuna appeals from her judgment of conviction entered upon the jury verdict
finding her guilty of possession of methamphetamine and possession of drug paraphernalia.
Ozuna argues that it was misconduct for the State to comment on her silence and to elicit
inadmissible testimony during trial and that the prosecutorial misconduct rose to the level of
fundamental error. Because fundamental error did not occur, we affirm the district court’s
judgment of conviction.
                                              I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       An officer responded to a disturbance and contacted Ozuna, who was standing on the
sidewalk in front of her residence. As the officer spoke with Ozuna, the officer noticed Ozuna

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was holding a pair of gloves and a glass methamphetamine pipe with burn marks. During the
conversation, the glass pipe fell out of Ozuna’s hand and broke on the ground. Ozuna said “Oh,”
looked at the pipe, looked back at the officer, and then continued the conversation. The officer
explained to Ozuna that the officer saw the pipe fall and hit the ground, and he arrested Ozuna.
The State charged Ozuna with felony possession of a controlled substance, methamphetamine,
Idaho Code § 37-2732(c)(1), and misdemeanor possession of drug paraphernalia, I.C. § 37-
2734A.
         Prior to trial, the district court instructed the State that two of the officer’s statements in
the probable cause affidavit were inadmissible and the officer was not to testify to those
statements. The statements from the probable cause affidavit were: (1) the officer said he
identified Ozuna due to previous contacts with her; and (2) the officer said he transported Ozuna
to the police station so detectives could speak with her about an ongoing investigation. The State
confirmed it discussed those areas of testimony with the officer, and the officer was aware those
two subjects were not to be mentioned during trial.
         Nonetheless, when the officer testified at trial about the identification of Ozuna, the
officer stated: “I was able to identify her from a previous contact. So as soon as I saw her, I
recognized her.” Ozuna’s counsel did not object to this testimony.
         Ozuna also testified at trial. She explained she was outside her house picking up garbage
when she picked up a pair of gloves. Ozuna testified the gloves did not belong to her and were
not in her yard. She also testified she never looked inside the gloves, had never seen the gloves
before, and had no knowledge of the pipe within the gloves until the pipe dropped onto the
ground. During cross-examination, Ozuna was asked if she said anything to the officer such as,
“That’s not mine,” and Ozuna responded, “Later sometime.” Aside from telling the officer the
pipe was not hers, Ozuna did not offer any additional explanation about how she came to possess
the gloves and the methamphetamine pipe.
         The jury found Ozuna guilty of felony possession of methamphetamine and misdemeanor
possession of drug paraphernalia. The district court sentenced Ozuna to five years, with one year
determinate, and retained jurisdiction. Ozuna timely appeals.




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                                                 II.
                                   STANDARD OF REVIEW
       Generally, issues not raised below may not be considered for the first time on appeal.
State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). However, when a defendant
alleges that a constitutional error occurred at trial and the alleged error was not followed by a
contemporaneous objection, the claim of error must be reviewed under the fundamental error
doctrine. State v. Miller, 165 Idaho 115, 119, 443 P.3d 129, 133 (2019). In order to obtain relief
under the fundamental error doctrine, the defendant must demonstrate three things. First, the
defendant must show that one or more of the defendant’s unwaived constitutional rights were
violated. Id. Second, the error must be clear and obvious, meaning the record must demonstrate
evidence of the error and evidence as to whether or not trial counsel made a tactical decision to
not object. Id. Third, the defendant must demonstrate that the error affected the defendant’s
substantial rights, which means the error identified in the first and second prongs of the test
actually affected the outcome of the trial. Id. at 119-20, 443 P.3d at 133-34.
                                                III.
                                           ANALYSIS
       Ozuna claims fundamental error occurred and argues the State committed misconduct in
two ways: first, by eliciting testimony and commenting on Ozuna’s silence to prove her guilt
and second, by eliciting testimony from the officer in contravention of the district court’s order.
A.     Evidence of Ozuna’s Silence
       Ozuna argues it was misconduct for the State to use her silence in order to prove guilt
because it violated her unwaived constitutional right to remain silent and right to a fair trial. In
response, the State claims Ozuna cannot show fundamental error. The State asserts Ozuna’s
argument is fundamentally flawed because in order to assert a claim that her Fifth Amendment
rights were violated, Ozuna had to invoke her Fifth Amendment rights during questioning, which
she did not do.
       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

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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).
          Under the Fifth Amendment, whether and to what extent the State can comment on the
defendant’s silence depends on whether the defendant was in custody and whether Miranda 1
warnings were given. For example, where the defendant’s silence occurs in a pre-custody, pre-
Miranda circumstance, a witness who desires the protection of the privilege against self-
incrimination must claim it at the time he relies on it. Salinas v. Texas, 570 U.S. 178, 182-83
(2013). In Salinas, the Supreme Court held that the prosecutor’s use of Salinas’ noncustodial,
pre-Miranda silence did not violate the defendant’s Fifth Amendment rights. Salinas, 570 U.S.
at 191.
          However, a different outcome may result where the defendant’s silence occurs during
either a post-custody, pre-Miranda interrogation or during a post-custody, post-Miranda
interrogation. Silence that occurs during a post-custody, pre-Miranda setting may be used by the
State for impeachment, but not solely as evidence of guilt. State v. Parker, 157 Idaho 132, 147,
334 P.3d 806, 821 (2014). Silence that occurs post-custody and post-Miranda cannot be used by
the State for any purpose. Parker, 157 Idaho at 147, 334 P.3d at 821.
          Here, Ozuna directs this Court to four instances of alleged misconduct: one in opening
statement, one in direct examination, one in cross-examination, and one in closing argument. In
its opening statement, the State explained that Ozuna was placed under arrest by the officer. The
State provided the following explanation regarding Ozuna’s arrest: “At this point the defendant
didn’t start to adamantly deny that it was hers. Instead, she turns around, puts her hands behind
her back, and is placed under arrest, only once telling Officer Parsons, ‘That pipe wasn’t mine.’”
          During direct examination, the State asked the officer about the events and Ozuna’s
reaction. Ozuna argues “the prosecutor committed misconduct by implying guilt from silence”
during the following exchange:
          Q:     Okay. Did the defendant react at all when the pipe broke on the ground?
          A:     Yes. She made the comment verbally, said, “Oh.” She looked at the pipe
                 and then looked up at me and then continued to talk about who was living
                 on the property.
          Q:     So she just continued in the conversation?
          A:     Yes.
          Q:     Okay. From before the pipe broke?

1
          Miranda v. Arizona, 384 U.S. 436 (1966).
                                                 4
       A:     Yes.
       Q:     Where she was at in the conversation before the pipe broke?
              Sorry.
       A:     Correct. Yes.
       Q:     Okay. What did you do?
       A:     At that time I told [Ozuna] that I had seen the pipe fall out, hit the ground,
              and to turn around and place her hands behind her back. And then I put
              her into custody.
       Q:     Did she say anything to you?
       A:     No.
              Let me rephrase that.
              She did state at some point during our contact that it wasn’t hers.
       Q:     Okay. Do you remember if it was right when you were placing her under
              arrest, or later?
       A:     I don’t recall.
       Q:     Do you remember I guess maybe adamantly denying, like repeatedly
              saying “That’s not mine”?
       A:     No. Not adamantly; no.
       Ozuna argues the State was also improper to use silence to imply guilt during the cross-
examination of Ozuna. Ozuna cites to the following exchange:
       Q:     So when he did tell you that he was going to be placing you under arrest,
              did you tell him that you had just been picking up trash then?
       A:     No.
              ....
       A:     There was no questions asked of where the pipe came from or what.
       Q:     Okay.
       A:     Anything.
       Q:     But you didn’t say that you had just been picking up trash?
       A:     No.
       Q:     You didn’t say that you had just picked up the gloves?
       A:     No.
       Q:     Okay. Now, I think there is, Officer Parsons did say at least at one point
              you did say the pipe wasn’t yours?
       A:     Yes.
       Q:     Okay. But you didn’t offer any other explanation?
       A:     No.
       Q:     Just, “The pipe is not mine”?
       A:     No. I don’t think I have to offer explanation, because I’m not guilty for it
              as what I think, so.
       Q:     Okay. But I’m just asking. You didn’t tell--
       A:     And for questions not being asked. I’m not going to respond to something
              that can be used against me.
       Q:     And that’s your opinion. That’s absolutely fine.
              But I’m just asking you, you didn’t tell Officer Parsons other than that one
              time, “That’s not my pipe”? You didn’t say anything else?

                                                5
       A:     No.
              ....
       Q:     But at the time you were being placed under arrest, you were calm and not
              adamantly denying that what you were being placed under arrest for, you
              weren’t guilty of; is that correct?
       A:     Was I calm about it?
       Q:     Uh-huh.
       A:     Yes.
       Q:     Okay. And you weren’t telling the officer at that point that the gloves
              weren’t yours, the pipe wasn’t yours?
       A:     No.
       Finally, Ozuna claims that in the State’s closing argument, the State explicitly relied on
evidence of Ozuna’s silence to argue her guilt. Ozuna directs this Court to the following
statements:
                But what else can you look at? We can look at her reactions. Officer
       Parsons described them. She even described them on the stand. When the pipe
       fell out of her hand and broke onto the ground, she didn’t start saying, “That’s not
       mine.” I didn’t even know that was in there. I was just picking up trash. 2
       Instead, she tries to keep talking, trying to divert Officer Parsons’ attention
       elsewhere. Why did she do this? Because, she knew that that pipe was in her
       hand. She knew she could get in trouble. So she was hoping to distract Officer
       Parsons, hoping that Officer Parsons wouldn’t notice.
                What else can you look at? When Officer Parsons told her that she was
       under arrest, she even told you she had a calm demeanor. She turned around, put
       her hands behind her back and was led off.
Additionally, Ozuna challenges the following portion of the State’s rebuttal argument in its
closing argument:
              What else is reasonable? What else would your common sense tell you?
       Does your common sense tell you that when you’re placed under arrest for an
       item you’ve just picked up from trash that you didn’t even know was in your hand
       and you’re being placed under arrest--what does your common sense tell you that
       you would do, or that a reasonable person would do? I propose to you that a
       reasonable person would say, “That’s not mine. I just picked that up. It was in
       the gloves. I didn’t even know it was there.” A reasonable person would tell that
       story. If it was the truth, you would tell the story. When it’s a story that you’re
       making up to get out trouble, you tell it six months later. You tell it for the first
       time in a courtroom to try and avoid getting in trouble. So what’s reasonable?
       What makes sense?

2
        From context, it would be more accurate to add two sets of quotation marks to the quoted
material, such that the State’s closing argument reads: “When the pipe fell out of her hand and
broke onto the ground, [Ozuna] didn’t start saying, ‘That’s not mine.’ ‘I didn’t even know that
was in there.’ ‘I was just picking up trash.’”
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       Whether Ozuna’s silence can be used, and for what purpose, depends on when an arrest
occurred and when Miranda warnings were given. For instance, our analysis changes depending
on whether the State used the defendant’s silence prior to an arrest and prior to Miranda
warnings, as compared to after an arrest and after Miranda warnings. Similarly, it matters
whether the State is offering the evidence of a defendant’s silence to infer guilt or rather, to
impeach the defendant.
       Here, the alleged error was not followed by a contemporaneous objection, and thus, this
Court reviews the case under the fundamental error doctrine. Under the first two prongs of the
fundamental error doctrine, Ozuna must establish that her Fifth Amendment right to silence was
violated and that the error is clear and obvious. Miller, 165 Idaho at 119, 443 P.3d at 133. For
the error to be clear and obvious, the record must demonstrate evidence of the error as well as
evidence as to whether or not trial counsel made a tactical decision to not object. Id.
       In this case, the nature of the alleged constitutional violation is not clear from the record.
There was testimony that Ozuna was not silent throughout the exchange, but the timing of
Ozuna’s statements vis-a-vis her arrest cannot be determined from the record. The officer did
not recall if Ozuna’s denial occurred simultaneous to her arrest or at a later time. Ozuna testified
the statement came after her arrest, but does not specify when. There is no evidence as to when,
or if, Miranda warnings were given. There is no evidence about whether Ozuna made only one
statement denying ownership of the pipe or if she continued the conversation with the officer,
interspersed with periods of silence and occasions in which Ozuna denied ownership. Further,
there is no evidence whether the State’s question regarding “adamant denial of ownership” was
meant to characterize Ozuna’s statement denying ownership of the pipe or whether it was a
comment on her silence. These facts are necessary for this Court to determine which analytical
rubric to apply in evaluating a Fifth Amendment violation. This Court will not speculate as to
the timing of the events, the extent to which Ozuna was silent, or whether the State’s comment
on an “adamant denial” relates to her statement or her silence. The record is unclear as to the
nature and scope of the alleged Fifth Amendment violation, and thus, there was no clear
violation of Ozuna’s unwaived constitutional right in this case.
       Additionally, there is no evidence as to whether or not trial counsel made a tactical
decision to not object. Pursuant to Miller, to satisfy the second prong of the fundamental error
analysis, the record must demonstrate evidence of the error and evidence as to whether or not

                                                 7
trial counsel made a tactical decision to not object. Miller, 165 Idaho at 119, 443 P.3d at 133. In
other words, defendant must show the record itself, without additional information, demonstrates
that the absence of an objection was not tactical.
       Ozuna claims, first, there is no legitimate strategic or tactical reason for defense counsel
to choose not to object to the evidence regarding Ozuna’s silence. Pursuant to Miller, such a
claim by itself is insufficient to establish clear error under the second prong of the analysis.
Miller, 165 Idaho at 119, 443 P.3d at 133. Second, Ozuna argues the second prong of the
analysis was satisfied because her counsel moved to dismiss the charges pursuant to Idaho
Criminal Rule 29 after the State presented its case. According to Ozuna, the Rule 29 motion
established that the lack of an objection was not tactical because the motion would have been
more successful had her counsel objected to comments on Ozuna’s silence. We disagree. First,
Ozuna’s motion did not move to dismiss based on constitutional violations or the State’s use of
her silence. Second, Ozuna filed the Rule 29 motion prior to the alleged misconduct in her
cross-examination and closing argument; these statements would therefore have no impact on the
success of the motion.
       Ozuna also asserts that her closing argument is sufficient to satisfy the second prong of
Miller. In her closing argument, Ozuna stated:
               And I should mention this. The prosecutor keeps alluding to the fact that
       my client didn’t protest enough when she was arrested. But you know, this is still
       America, isn’t it? Don’t we have that right, when the officer says, “put your
       hands behind your back,” to keep your mouth shut? Isn’t that what my client did?
       Is the idea here that she should have put up a fight? She should have said other
       things? She knew she was under arrest at that point. What good does it do to
       speak up at that point? And she didn’t. And the reason she didn’t is she wanted
       you good people to hear her side of the story.
According to Ozuna, because her closing argument attempted to argue against the State’s
comments and because this argument would have been more successful had counsel objected
throughout trial, the lack of an objection was not strategic or tactical. That counsel’s strategy
may have been more successful had counsel made additional objections rests on the underlying
recognition that trial counsel made a strategic choice to address these issues in closing argument.
Counsel’s choice to address the issue in this manner, as opposed to a different manner,
demonstrates that trial counsel recognized the issue and made a strategic or tactical choice about
how and when to address it. Clear error is not established simply because a strategy might have
been more successful had trial counsel made additional or different statements or objections.
                                                 8
Consequently, the error here was not clear and obvious, and there is not sufficient evidence in the
record to establish that the lack of an objection was not a tactical decision.
       Because Ozuna fails to establish a clear violation of an unwaived constitutional right, she
fails to establish a claim of fundamental error in this case, and we need not address whether the
alleged error actually affected the outcome of the trial.
B.     Evidence of Identifying Ozuna
       Ozuna argues the State committed misconduct by eliciting testimony from the officer in
contravention of the district court’s ruling on such evidence. At issue is evidence regarding the
identification of Ozuna. Prior to trial, the district court was concerned with statements in the
State’s probable cause affidavit; in particular, that the officer identified Ozuna due to previous
contact with her. The State explained the officer knew this subject was not to be mentioned at
trial and the officer agreed not to volunteer the information.          Nonetheless, the following
exchange occurred during the State’s direct examination of the officer:
       Q:      Okay. When you arrived there, what did you see?
       A:      When I pulled up, the other officer was already on scene and was speaking
               to an individual sitting in a vehicle. And then I encountered Ms. Ozuna
               standing on the sidewalk in front of the residence.
       Q:      Okay. I’m assuming you identified the individual that you spoke with?
       A:      Yes, I did.
       Q:      How did you identify her?
       A:      I was able to identify her from a previous contact. So as soon as I saw her,
               I recognized her.
       Q:      Okay. And who did you identify that person to be?
       A:      Janell Ozuna.
Ozuna claims the direct examination amounted to prosecutorial misconduct. She asserts that the
evidence was inadmissible because it was irrelevant under Idaho Rule of Evidence 401, it was a
prior bad act and failed to satisfy any exception in I.R.E. 404(b), and it was overly prejudicial
under I.R.E. 403. Although the questioning was not objected to at trial, Ozuna argues the
prosecutorial misconduct was fundamental error.
       While our system of criminal justice is adversarial in nature, and the prosecutor is
expected to be diligent and leave no stone unturned, the prosecutor is nevertheless expected and
required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in
reviewing allegations of prosecutorial misconduct we must keep in mind the realities of trial. Id.
A fair trial is not necessarily a perfect trial. Id. Because Ozuna made no objection at trial, this


                                                  9
Court may only reverse when the misconduct constitutes fundamental error. Miller, 165 Idaho at
122, 443 P.3d at 136.
       The alleged misconduct in this case was the State’s introduction of evidence the district
court found to be inadmissible. This Court can envision circumstances in which the violation of
a court’s pretrial order could ultimately be found to violate a due process right of a defendant.
See State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010). In that circumstance, the violation may
be found to constitute fundamental error. That is not the case here.
       Here, after the district court explained the officer’s prior contact with Ozuna was
inadmissible evidence, and after the State assured the district court the officer would not mention
the prior contact during trial, the officer nevertheless testified at trial that he was able to identify
Ozuna from a previous contact. It does not appear the State intentionally elicited the improper
testimony from the officer, but such intent is not determinative because the officer’s testimony is
imputed to the State, whether or not the State intended to elicit the response. State v. Ellington,
151 Idaho 53, 67, 253 P.3d 727, 741 (2011). While improper, violations of evidence rules do not
typically give rise to due process claims or establish fundamental error. Perry, 150 Idaho at 226,
245 P.3d at 978. Evidentiary errors do not implicate constitutional considerations unless the
error deprives the defendant of his Fourteenth Amendment due process right to a fair trial. State
v. Dunlap, 155 Idaho 345, 370, 313 P.3d 1, 26 (2013).
       We understand that Ozuna is claiming the violation of the district court’s order--rather
than the admission of evidence--is the error. Nonetheless, at its core, Ozuna’s complaint is that
the evidence was improperly admitted, which makes this an evidentiary issue and not a
constitutional due process issue.
       This Court determines the erroneous admission of evidence in this case does not go to the
foundation or basis of Ozuna’s rights, nor does it take from her a right which was essential to her
defense. The erroneous admission of evidence in this case does not rise to the level of a due
process violation such that it can transform the violation of a rule or statute (expressly excluded
from the fundamental error analysis in Perry, 150 Idaho at 226, 245 P.3d at 978) into a
fundamental error claim. A substantial right of the defendant is not infringed upon just because
his or her trial counsel fails to make an appropriate evidentiary objection. State v. Diaz, 163
Idaho 165, 170, 408 P.3d 920, 925 (Ct. App. 2017). Thus, the officer’s testimony regarding his
identification of Ozuna did not constitute fundamental error.

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                                             IV.
                                      CONCLUSION
       Because fundamental error did not occur in this case, we affirm the Ozuna’s judgment of
conviction.
       Judge LORELLO and Judge BRAILSFORD CONCUR.




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