                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38110

STATE OF IDAHO,                                   )      2012 Unpublished Opinion No. 589
                                                  )
       Plaintiff-Respondent,                      )      Filed: August 14, 2012
                                                  )
v.                                                )      Stephen W. Kenyon, Clerk
                                                  )
NATHAN TODD BANBURY,                              )      THIS IS AN UNPUBLISHED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,
       Bingham County. Hon. Darren B. Simpson, District Judge.

       Judgment of conviction for grand theft, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Sarah E. Tompkins, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Nathan Tood Banbury appeals from his judgment of conviction for grand theft. For the
reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       The state charged Banbury with grand theft, I.C. §§ 18-2403(1) and 18-2407(1)(b)(1),
based upon the allegation that he stole a car. At trial, the owner of a car dealership testified that
Banbury visited the dealership, inquired about a white Cadillac, and asked for the keys. The
owner testified that he informed Banbury he could not take the car for a drive, but gave Banbury
the keys so he could look inside. The owner also testified that, after he gave Banbury the keys,
he returned to his office, looked out the window, and noticed that the car was gone. The owner
called the police and provided a description of the car and of Banbury. The owner testified that,
after a friend contacted him to let him know that the friend had located the car, the owner went to



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the location the friend described. The location was Banbury’s residence. The owner testified
that he identified the car as the one taken from his dealership, although the advertising license
plates and price markings had been removed, and called the police.
       Two officers testified at trial.   The first officer testified that, when he arrived at
Banbury’s residence, he noticed that the car had fresh puddles underneath it and looked like it
had just been washed. The officer testified that the vehicle identification number on the car
matched the vehicle identification number he received from the owner of the car dealership. The
second officer made the initial contact with Banbury at his residence and both officers proceeded
to conduct a security check. The first officer testified that, as Banbury sat on a couch in his
living room, the officer observed pieces of a placard from the owner’s dealership in a garbage
can and a partial placard, an as-is warranty slip, and scissors sitting on the floor. The second
officer testified that he spoke with Banbury following the provision of Miranda 1 warnings. The
following exchange then took place between the prosecutor and the second officer:
       [Prosecutor]   While you were there, did you recover the keys to the car?
       [Officer]      I did. I asked [Banbury] for the keys, and he gave them to me.
       [Prosecutor]   When, when he gave you the keys, were they on a key ring?
       [Officer]      They were on a key ring with an additional key that didn’t appear
                      to be a GM key.
       [Prosecutor]   Did you ask him about the additional key?
       [Officer]      I did. It looked like a house key, and so I just--you know,
                      obviously didn’t belong to a Cadillac; and I asked him, “You know
                      what the additional key was for?” I assumed it was the, the door to
                      the house.
                              He indicated actually it was a door to his bedroom there
                      within the house, was a--like a doorknob lock key, but only to lock
                      his own bedroom.
       [Prosecutor]   And after you recovered the key, what happened at that time?
       [Officer]      Got the keys. I asked him some questions about whether or not he
                      had taken the car. He said he wanted to remain silent.
                              And I asked him also if his fingerprints would be located
                      inside the car. He said, “Probably.”
                              I asked him if he’d washed the car. He said he wanted to
                      remain silent on several of the questions.




1
       See Miranda v. Arizona, 384 U.S. 436 (1966).

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Banbury did not object to this testimony at trial. Banbury was found guilty of grand theft and
sentenced to a unified term of eight years, with a minimum period of confinement of one year.
Banbury appeals.
                                                II.
                                           ANALYSIS
       Banbury argues that he is entitled to a new trial because the officer made statements at
trial regarding Banbury’s invocation of his right to remain silent while being questioned by the
officer. Banbury acknowledges that he did not object to such testimony at trial, but asserts that
this instance of prosecutorial misconduct rose to the level of fundamental error that was not
harmless in this case.
       In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), 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
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.
       Even assuming, without deciding, that Banbury’s claim of prosecutorial misconduct does
not fail under the first two prongs of Perry, the state presented overwhelming evidence of
Banbury’s guilt. Specifically, the owner of the car dealership identified Banbury as the person
who was inquiring about the Cadillac and given the keys before the car was taken from the
owner’s dealership. Later, the car was found at Banbury’s residence. While Banbury asserts that
the sole issue that was meaningfully in dispute in this case was whether Banbury had the
requisite intent to support the state’s allegation of grand theft--intent to deprive or intent to
appropriate property wrongfully taken from the owner--the state presented overwhelming
evidence that Banbury had such intent. The owner testified that, when he arrived at Banbury’s
residence, the advertising license plates and price markings had been removed from the car. The
officer who initiated the security check of Banbury’s residence testified that Banbury gave him
the keys to the car when asked and informed the officer that the additional key on the key ring
was a key to Banbury’s bedroom door. Another officer testified that, during the security check,
he observed pieces of a placard from the dealership in a garbage can and a partial placard, an


                                                3
as-is warranty slip, and scissors sitting on the floor. Because the evidence of Banbury’s guilt
was so abundant, we are convinced beyond a reasonable doubt that the officer’s comments
regarding Banbury’s invocation of his right to remain silent while being questioned by the
officer, even if erroneous, did not affect the outcome of the trial proceedings. Thus, Banbury’s
claim fails under the third prong of Perry.
                                               III.
                                         CONCLUSION
       Banbury has not shown that the officer’s comments regarding Banbury’s invocation of
his right to remain silent while being questioned by the officer affected the outcome of the trial
proceedings. Accordingly, Banbury’s judgment of conviction for grand theft is affirmed.
       Chief Judge GRATTON and Judge LANSING, CONCUR.




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