               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45017

STATE OF IDAHO,                                 )
                                                )    Filed: August 21, 2018
       Plaintiff-Respondent,                    )
                                                )    Karel A. Lehrman, Clerk
v.                                              )
                                                )    THIS IS AN UNPUBLISHED
JOSHUA AARON WICKHAM,                           )    OPINION AND SHALL NOT
                                                )    BE CITED AS AUTHORITY
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Jason D. Scott, District Judge.

       Judgment of conviction, order retaining jurisdiction, and commitment, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Elizabeth A. Allred,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Joshua Aaron Wickham appeals from the district court’s judgment of conviction, order
retaining jurisdiction, and commitment. Wickham argues the district court erred by denying his
motion for mistrial after a witness improperly testified about Wickham’s past drug use. The
district court’s judgment of conviction, order retaining jurisdiction, and commitment is affirmed.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       A police officer responded to a call from Wickham’s sister who told the officer Wickham
would not leave the sister’s residence.     After Wickham’s sister provided a description of
Wickham’s vehicle, the officer looked up Wickham’s photo and records and found his driving
privileges were suspended. When the officer arrived at the residence, he noticed a vehicle fitting
Wickham’s sister’s description leaving the residence. The officer turned on his overhead lights

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and attempted to pull over the vehicle, but the vehicle sped away. The officer then engaged in a
high-speed chase with the vehicle, which the officer eventually disengaged, concerned that the
vehicle’s reckless driving was dangerous to others on the road. Officers found Wickham and the
vehicle a few minutes later at two businesses nearby. Wickham appeared to be under the
influence of drugs. A drug recognition expert determined Wickham was under the influence of a
stimulant drug and marijuana. A lab test confirmed Wickham was using methamphetamine.
       Wickham was charged with eluding a police officer, Idaho Code § 49-1404(2)(a), (c);
operating a motor vehicle while under the influence of alcohol and/or drugs, I.C. § 18-8004; and
driving without privileges, I.C. § 18-8001. The State later also charged Wickham with being a
persistent violator of the law, I.C. § 19-2514. Before trial, in response to a motion in limine filed
by Wickham, the State agreed that portions of the recording of the phone call Wickham’s sister
made to the police, wherein she discussed Wickham’s prior drug use, would not be admissible at
trial and should be redacted. However, the State maintained that statements made in the phone
call about Wickham’s current drug use were relevant. Although the district court ruled the
recording of the phone call, in a redacted form, could be used only to refresh Wickman’s sister’s
memory outside the presence of the jury, the district court reserved its ruling on the scope of
Wickman’s sister’s permitted testimony on the subject. In response, the State assured it would
instruct Wickham’s sister that she could not testify about Wickham’s prior drug use, among
other inadmissible topics.
       At trial, when discussing the phone call, Wickham’s sister testified she told dispatch that
she “had asked [Wickham] not to come over until he was sober again.” When asked why
Wickham’s sister provided a dispatch with a description of Wickham’s car, she testified,
“[b]ecause I would rather my brother be in jail than be dead on the streets.” Wickham objected
and argued these statements were highly prejudicial, expressing concern that “we’re in a position
where this case may be mistried at this point.” The district court responded, “after seriously
entertaining that motion, I don’t believe we’re there yet.” After admonishing Wickham’s sister
about the limitations of her testimony, the district court let questioning resume, without
providing a limiting instruction to the jury.
       At the close of trial, the jury found Wickham guilty on all three counts. Wickham
admitted to the persistent violator charge. On the count of eluding a peace officer, the district
court sentenced Wickham to a unified term of eight years, with three years determinate, and

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retained jurisdiction.   On the other two counts, the district court credited Wickham’s two
concurrent 180-day jail sentences with his 180 days served. Wickham appealed to this Court.
                                                 II.
                                   STANDARD OF REVIEW
       In criminal cases, motions for mistrial are governed by Idaho Criminal Rule 29.1. A
mistrial may be declared upon motion of the defendant when there occurs during the trial an
error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is
prejudicial to the defendant and deprives the defendant of a fair trial. I.C.R. 29.1(a). Our
standard for reviewing a district court’s denial of a motion for mistrial is well-established:
       [T]he question on appeal is not whether the trial judge reasonably exercised his
       discretion in light of circumstances existing when the mistrial motion was made.
       Rather, the question must be whether the event which precipitated the motion for
       mistrial represented reversible error when viewed in the context of the full record.
       Thus, where a motion for mistrial has been denied in a criminal case, the “abuse
       of discretion” standard is a misnomer. The standard, more accurately stated, is
       one of reversible error. Our focus is upon the continuing impact on the trial of the
       incident that triggered the mistrial motion. The trial judge’s refusal to declare a
       mistrial will be disturbed only if that incident, viewed retrospectively, constituted
       reversible error.
State v. Urquhart, 105 Idaho 92, 95, 665 P.3d 1102, 1105 (Ct. App. 1983).
       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). Where a defendant meets his or her initial burden of showing that a constitutional
violation has occurred, the State has the burden of demonstrating to the appellate court beyond a
reasonable doubt that the violation did not contribute to the jury’s verdict. State v. Perry, 150
Idaho 209, 227-28, 245 P.3d 961, 979-80 (2010).
                                                 III.
                                            ANALYSIS
       Wickham argues the district court erred by denying his motion for mistrial because his
sister’s testimony caused the jury to evaluate the evidence “through a lens tainted by information
that Mr. Wickham was a drug addict.” Wickham does not argue that his sister’s testimony
violated a pretrial stipulation or a ruling by the district court on his motion in limine, nor does he


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identify a rule of evidence which the testimony violated.        Even so, Wickham argues the
statements had a continuing impact on the trial and unfairly tipped the balance of an otherwise
close case in the State’s favor.
       Because this Court reviews the district court’s decision not to declare a mistrial for
reversible error, we consider the broad context in which the jury made its decision. Of particular
concern here is the jury’s consideration of the intoxication element for the driving under the
influence count and how Wickham’s sister’s statements affected that consideration. 1 Beyond
those statements, the jury received independent evidence of Wickham’s intoxication.          One
officer testified that when he found Wickham, he “looked like he was under the influence of
drugs,” because “his eyes [were] completely dilated and not constricting in normal light,” and he
was sweating in sixty-seven degree weather. Another officer, a drug recognition expert, testified
about the multiple tests he performed on Wickham, noting his body was tense, with rigid muscle
tone and body tremors; that Wickham’s heart rate was at the high end; that he had elevated blood
pressure; that he could not hold his balance; that he had psychoactive elements to his behavior;
and that he was dehydrated and thirsty, among other indicators of drug use.           The officer
concluded Wickham was impaired by a stimulant drug and marijuana. Additionally, a forensic
scientist testified that she analyzed a sample of Wickham’s blood which tested positive for
methamphetamine.
       Wickham did not refute these findings by subjecting these witnesses to cross-examination
on the issue of Wickham’s intoxication. Unsurprising then is the fact that in Wickham’s closing
argument, he admitted that he was on methamphetamine. Considered in the context of the
overwhelming evidence of Wickham’s intoxication, Wickham’s sister’s statements, even if they
did communicate to the jury that Wickham was a drug addict, did not contribute to the jury’s
decision on the intoxication element of the driving under the influence charge. Because the
statements were harmless and did not prejudice Wickham, the district court’s refusal to declare a
mistrial because of the statements does not amount to reversible error.




1
       An issue at trial was the identity of the driver of the vehicle. Wickham’s sister’s
statements did not serve fairly or unfairly to establish Wickham as the driver of the eluding
vehicle.
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                                                IV.
                                         CONCLUSION
       Because Wickham’s sister’s statements are overshadowed by the overwhelming evidence
of Wickham’s intoxication while driving, they did not contribute to the jury’s decision, and thus
the district court’s failure to declare a mistrial does not constitute reversible error. The district
court’s judgment of conviction, order retaining jurisdiction, and commitment is affirmed.
       Chief Judge GRATTON and Judge HUSKEY CONCUR.




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