                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                 Docket Nos. 44945/44946/44947

STATE OF IDAHO,                                )
                                               )   Filed: September 26, 2018
       Plaintiff-Respondent,                   )
                                               )   Karel A. Lehrman, Clerk
v.                                             )
                                               )   THIS IS AN UNPUBLISHED
JESSICA JEAN IBARRA, aka DELEON,               )   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. Juneal C. Kerrick, District Judge.

       Judgment of conviction for possession of cocaine, unlawful possession of a
       firearm, possession of marijuana, and possession of paraphernalia, affirmed; order
       of restitution, reversed and case remanded.

       Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       A jury found Jessica Jean Ibarra guilty of possession of cocaine, unlawful possession of a
firearm, misdemeanor possession of marijuana, and misdemeanor possession of paraphernalia.
Ibarra appeals from her judgment of conviction. Ibarra raises two issues on appeal. 1 First, she
argues the prosecutor committed misconduct amounting to fundamental error by asking an
officer to provide his opinion regarding Ibarra’s guilt. Second, Ibarra argues the district court
abused its discretion by entering a restitution award based solely on the prosecutor’s unsworn
statement of costs. For the reasons provided below, we affirm the judgment of conviction and
reverse the restitution order.

1
       Ibarra withdrew her claim of error relative to the introduction of evidence under Idaho
Rule of Evidence 404(b).
                                               1
                                                    I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Ibarra was a passenger in a vehicle pulled over for failure to stop. While one officer
spoke with the driver, another officer noticed a gun in the back of the car. The officers removed
the driver and Ibarra from the car. Marijuana and cocaine were found on Ibarra’s person. A
search of the car revealed a pipe and a purse containing paraphernalia.
       Upon questioning, Ibarra indicated that all items found in the car were hers, though she
initially denied any knowledge of the gun. The State charged Ibarra with possession of cocaine,
unlawful possession of a firearm, possession of marijuana, and possession of paraphernalia.
Ibarra pleaded not guilty and proceeded to trial.
       During direct examination regarding the unlawful possession of the gun, the prosecutor
asked the arresting officer, “Based on your training and experience, you believed [Ibarra and the
driver] were guilty of this?” Ibarra objected, and the objection was sustained. On redirect, the
prosecutor asked the officer, “If you believed someone was innocent, would you arrest them?”
The officer responded, “No.” The prosecutor later asked, “If you believed [Ibarra] did not know
about the gun and did not have access to it, would you have arrested her?” The officer answered,
“No.” Ibarra did not object to either question.
       The jury found Ibarra guilty of possession of cocaine, Idaho Code § 37-2732(c)(1);
unlawful possession of a firearm, I.C. § 18-3316; possession of marijuana, I.C. § 37-2732(c)(3);
possession of paraphernalia, I.C. § 37-2734A(1); and a prior-felony enhancement, I.C. § 37-
2739. The district court sentenced Ibarra to a unified term of fourteen years, with six and one-
half years determinate, for the cocaine charge, followed by a consecutive five-year sentence for
the firearm charge. The court also sentenced Ibarra to concurrent 180-day sentences for the two
misdemeanor charges.
       At the sentencing hearing, the State requested restitution for the costs of prosecution.
The district court stated that an affidavit was required. The State submitted a one-paragraph,
signed boilerplate form titled “Statement of Costs and Request for Restitution in a Drug Case”
with blanks for the defendant’s name, the case number, date, number of hours worked, and total
amount. The State did not submit an affidavit with the form. Ibarra did not object. There was
no hearing regarding restitution, and the district court issued an order of restitution. Ibarra
timely appeals.

                                                    2
                                                    II.
                                               ANALYSIS
A.      Prosecutorial Misconduct
        Ibarra argues the prosecutor committed misconduct constituting fundamental error by
eliciting opinion testimony from an officer regarding Ibarra’s guilt, thus depriving her of a fair
trial. The State argues that while potentially improper, the prosecutor’s conduct did not amount
to 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.
        After previous objection, Ibarra made no contemporaneous objection to the prosecutor’s
subsequent questioning pertaining to the officer’s opinion regarding Ibarra’s guilt at trial. 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. Because we conclude that prong two is
dispositive, we need not discuss the other prongs.
        As to the second prong of Perry, Ibarra argues the transcript is clear as to what the
prosecutor asked, the questions were clearly improper, and therefore the error is clear from the
record. The State argues that the record is not clear that the failure to object was not a tactical
decision as Ibarra objected to a previous similar question.
        The second prong of the fundamental error analysis requires that the appellant show that
the error was “clear or obvious, without the need for any additional information not contained in
the appellate record, including information as to whether the failure to object was a tactical
decision.” Id. at 226, 245 P.3d at 978. On direct examination, the prosecutor asked the police
officer whether he believed Ibarra was guilty. Ibarra’s objection to this statement was sustained.
However, during redirect, the prosecutor asked the officer, “If you believed someone was

                                                     3
innocent, would you arrest them?” The officer responded, “No.” The prosecutor then asked,
“And if you believed [Ibarra] did not know about the gun and did not have access to it, would
you have arrested her?” The officer answered, “No.” Ibarra did not object to the latter two
questions.
       Ibarra argues that the failure to object to the latter questions was due to the “realities of
trial,” mainly that the decision to object is made on a split-second basis and often an objection
may be overlooked in the heat of trial because of the many aspects the attorney must focus on.
Ibarra continues that “Perry accounts for those realities by allowing those claims of clear
constitutional error to be raised on appeal even though the trial attorney failed to recognize that
issue in the heat of trial.” This interpretation of Perry would render the second prong a nullity.
       As noted above, to meet the second prong of the fundamental error analysis, an appellant
must demonstrate that his or her attorney did not make a tactical decision to not object. In Perry,
the prosecutor elicited improper vouching testimony from witnesses on numerous occasions;
however, defense counsel only objected in one instance. Id. at 228-29, 245 P.3d at 980-81. The
Supreme Court determined that because the attorney objected to the same questioning in one
instance but did not object on subsequent occasions, there was a reasonable possibility that the
failure to object was a strategic choice and therefore did not amount to fundamental error. Id.
       Similarly here, there were three instances of the prosecutor eliciting testimony regarding
Ibarra’s guilt, but defense counsel chose to object only once. Where defense counsel objected,
the Court sustained that objection and harm was avoided. Thus, though potentially imprudent, 2
it appears, under the facts of this case, to be a reasonable probability that defense counsel’s
failure to object to the prosecutor’s conduct in eliciting testimony regarding Ibarra’s guilt was a
strategic decision. Therefore, Ibarra’s claim is not properly dealt with in a fundamental error
review. Rather, it would be more properly pursued on post-conviction relief where additional
fact-finding may be conducted to determine the motivation for defense counsel’s failure to
object. See Perry, 150 Idaho at 229, 245 P. 3d at 981. Ibarra failed to meet the second prong of
the fundamental error analysis and therefore has not shown fundamental error.

2
        Juries are the judges of the credibility of witnesses and the ultimate adjudicators of guilt
or innocence. Thus, just as eliciting vouching testimony from a witness invades the province of
the jury, Perry, 150 Idaho at 229, 245 P.3d at 981, so too does questioning a witness regarding
the guilt of a defendant, State v. Barnes, 147 Idaho 587, 597-98, 212 P.3d 1017, 1027-28 (Ct.
App. 2009).
                                                 4
B.     Restitution
       On appeal, Ibarra only challenges the restitution award for prosecution expenses. Ibarra
argues the unsworn boilerplate form submitted by the State is insufficient evidence to support the
award of restitution. Therefore, Ibarra argues, the proper remedy is to vacate the award. Ibarra
further argues that a remand is inappropriate as the State already had the opportunity to present
evidence in support of the award and failed to meet its burden. In response, the State argues that
because Ibarra did not object to the restitution order or argue there was insufficient evidence to
support the award below, she has waived this argument on appeal. Alternatively, the State
argues, the proper remedy is to remand the case to recalculate the restitution amount.
       Idaho Code Section 37-2732(k) provides that “the court may order restitution” to the
State for prosecution expenses “actually incurred.” Thus, restitution awarded under I.C. § 37-
2732(k) is discretionary. State v. Cunningham, 161 Idaho 698, 700, 390 P.3d 424, 426 (2017);
State v. Nelson, 161 Idaho 692, 695, 390 P.3d 418, 421 (2017).               When a trial court’s
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry
to determine whether the lower court correctly perceived the issue as one of discretion, acted
within the boundaries of such discretion and consistently with any legal standards applicable to
the specific choices before it, and reached its decision by an exercise of reason. State v. Hedger,
115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989). Whether the district court acted within the
boundaries of its discretion and consistently with applicable legal standards and whether it
reached its decision by an exercise of reason requires the district court to base the amount of
restitution upon the preponderance of evidence submitted by the prosecutor, defendant, victim,
or presentence investigator. Cunningham, 161 Idaho at 700, 390 P.3d at 426; Nelson, 161 Idaho
at 695, 390 P.3d at 421; State v. Weaver, 158 Idaho 167, 170, 345 P.3d 226, 229 (Ct. App. 2014).
The amount of restitution to award is a question of fact for the district court, whose findings will
not be disturbed if supported by substantial evidence. Cunningham, 161 Idaho at 700, 390 P.3d
at 426; Nelson, 161 Idaho at 695, 390 P.3d at 421; Weaver, 158 Idaho at 170, 345 P.3d at 229.
       Ibarra relies on Nelson and Cunningham to support her argument that an unsworn,
boilerplate form from the prosecutor’s office is insufficient to support an award of restitution for
prosecution expenses. In Nelson and Cunningham, issued on the same day, the Idaho Supreme
Court addressed whether a similar form was sufficient on its own to prove by a preponderance of
the evidence that the expenses were “actually incurred” as required by statute. Cunningham, 161

                                                 5
Idaho at 700, 390 P.3d at 426; Nelson, 161 Idaho at 695, 390 P.3d at 421. The analysis in both
cases was identical and, excepting the unique factual background, party names and relief granted,
the opinions were mirror images. Cunningham, 161 Idaho at 700-02, 390 P.3d at 426-28;
Nelson, 161 Idaho at 695-97, 390 P.3d at 421-23. In both cases, the Idaho Supreme Court held
that “unsworn representations, even by an officer of the court, do not constitute ‘substantial
evidence’ upon which restitution under section 37-2732(k) may be based.” Cunningham, 161
Idaho at 702, 390 P.3d at 428; Nelson, 161 Idaho at 697, 390 P.3d at 423. In reaching this
conclusion, the Idaho Supreme Court determined the form submitted by the State merely
identified the defendant, the case number, prosecutor, total number of attorney hours, hourly rate,
and sum total computation of the request. Cunningham, 161 Idaho at 700, 390 P.3d at 426;
Nelson, 161 Idaho at 695, 390 P.3d at 421. It did not contain “itemized time entries explaining
the tasks performed” or the “expenditures made in the particular case” or that the “restitution was
sought only for expenses actually incurred in prosecuting” the specific charge at issue.
Cunningham, 161 Idaho at 700-01, 390 P.3d at 426-27; Nelson, 161 Idaho at 695-96, 390 P.3d at
421-22. The Supreme Court specifically noted that section 37-2732(k) does not permit recovery
of what is reasonable; rather, solely what is actually incurred. Cunningham, 161 Idaho at 702,
390 P.3d at 428; Nelson, 161 Idaho at 697, 390 P.3d at 423. Therefore, to meet the burden to
prove expenses actually incurred, generally a sworn statement is required that delineates the time
spent performing specific tasks. Cunningham, 161 Idaho at 702, 390 P.3d at 427; Nelson, 161
Idaho at 697, 390 P.3d at 423.
       The form submitted here is similarly deficient as the forms in both Nelson and
Cunningham. It does not itemize the tasks performed nor does it contain a signature purporting
to certify that the statement of costs is correct. Additionally, the prosecutor stated that she was
unsure of the county’s hourly rate and therefore used another county’s rate. This demonstrates
that the document submitted by the State does not prove the expenses actually incurred.
Accordingly, there was insufficient evidence to support the award of restitution for prosecution
expenses. Because the district court awarded restitution based upon a document that the Idaho
Supreme Court has held is insufficient to support such an award, the district court abused its
discretion.
       Next, Ibarra argues the State should not be given a “second bite at the apple” by
“reopening the restitution hearing,” and therefore remand is inappropriate. This argument hinges

                                                6
upon two questions: first, whether the State had a first bite of the apple, which the parties
disagree over; second, whether there was a restitution hearing, which there was not. Regarding
the first question, Ibarra argues the State’s first “bite” resulted from the district court’s directive
to file an affidavit. Because the court directed the State to file an affidavit, and the State failed to
do so, remand would result in another opportunity for the State to meet its burden. The State
argues that, unlike in Nelson where the case was remanded and the State had an opportunity to
provide an affidavit yet failed to do so, here the State did not actually have a first “bite.” In
Nelson, the order of restitution was vacated, the case was remanded, and restitution was
relitigated, expressly objected to, and reordered. Id. at 694-95, 390 P.3d at 420-21. Therefore,
the Idaho Supreme Court did not remand the case following the second hearing because the State
had already had two opportunities to provide sufficient evidence. Id. at 697, 390 P.3d at 423. In
Cunningham, the State filed an unsworn “Statement of Costs and Request for Restitution in a
Drug Case,” and the district court awarded restitution. Id. at 700, 390 P.3d at 426. The Idaho
Supreme Court remanded the case for further proceedings. Id. at 702, 390 P.3d at 428. Here,
there was no restitution hearing, no previous appeal, and no previous remand. Rather, the State
merely filed an unsworn “Statement of Costs and Request for Restitution in a Drug Case” and
based solely on that document, the district court awarded restitution. This is the same factual
scenario as Cunningham where the case has not been remanded and no hearing has been held.
Thus, remand is appropriate.
       The second question is pertinent to the State’s argument that Ibarra waived her challenge
to restitution on appeal because she failed to object. While the State is correct that the district
court informed Ibarra she had the right to object to the restitution requested by the State, the
record reflects that the court likewise informed the State to provide an affidavit in support of the
requested restitution. It was not until after the State was informed of this requirement that the
Court informed Ibarra of her right to object. It appears from the record that no such affidavit was
provided and that there was no hearing regarding restitution.              Therefore, Ibarra had no
opportunity to object before the district court ordered restitution. Moreover, the issue of whether
sufficient evidence existed to support an award of restitution may be properly reviewed for the
first time on appeal. See State v. Yeoumans, 144 Idaho 871, 873, 172 P.3d 1146, 1148 (Ct. App.
2007) (“An appellate challenge to the sufficiency of evidence to meet a party’s burden of proof
requires no specific action or argument below.”).

                                                   7
                                               III.
                                        CONCLUSION
       The prosecutor’s conduct in eliciting vouching testimony from the arresting officer
regarding Ibarra’s guilt did not constitute fundamental error. Because Ibarra objected to a
similar question on direct examination, it is unclear from the record that the failure to object to
the subsequent questions was not a tactical decision. The State failed to present sufficient
evidence to support an award of restitution. Therefore, the district court erred in ordering
restitution. Accordingly, Ibarra’s judgment of conviction for cocaine, unlawful possession of a
firearm, possession of marijuana, and possession of paraphernalia is affirmed. The order of
restitution is reversed, and the case is remanded for further proceedings consistent with this
opinion.
       Judge HUSKEY and Judge LORELLO CONCUR.




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