               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38023

STATE OF IDAHO,                                  )     2012 Unpublished Opinion No. 427
                                                 )
       Plaintiff-Respondent,                     )     Filed: March 30, 2012
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
WILLIAM JOHN LESTER,                             )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
       Defendant-Appellant.                      )     BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Patrick H. Owen, District Judge.

       Judgment of conviction for lewd conduct with a minor under sixteen years of
       age, affirmed.

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

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Judge
       William J. Lester appeals from his judgment of conviction entered upon a jury verdict
finding him guilty of lewd conduct with a minor under sixteen years of age. For the reasons set
forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       In 2008, K.A.M., who was approximately eight years old at the time, spent every other
weekend with her mother, who lived with her boyfriend, William Lester. One day while K.A.M.
and her younger sister were home alone with Lester, Lester took K.A.M. to his bedroom,
blind-folded her, and directed her to perform various sexual acts on him.
       K.A.M. first reported the incident in August of 2009, when she told her older sister what
had occurred. After K.A.M. was interviewed by CARES (Children at Risk Evaluation Services),
Ada County Sheriff’s Detective Cherie Tucker contacted Lester, telling him his name had “come

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up” in an investigation and she needed to speak with him. Lester voluntarily went to the
Sheriff’s Department where Detective Tucker told him he was free to leave and did not have to
answer any questions. Lester agreed to be interviewed and consistently denied the specific
allegations made by K.A.M.
       Lester was charged with two counts of lewd conduct with a minor under sixteen years of
age, Idaho Code § 18-1508, one count for contact he had with K.A.M.’s younger sister and one
count for the contact that occurred with K.A.M. During the initial jury trial, K.A.M.’s younger
sister proved unable to competently testify and a mistrial was declared. After a second trial on
only the charge pertaining to K.A.M., a jury found Lester guilty. Lester now appeals.
                                               II.
                                          ANALYSIS
A.     Confrontation
       Lester contends the district court erred by not allowing him to recross-examine K.A.M.
after the State opened a “new” line of questioning on redirect examination concerning K.A.M.’s
credibility. Specifically, the State, for the first time on re-direct examination, asked K.A.M.
questions regarding whether she was telling the truth because she believed all adults would be
able to discern if she was lying. Lester argues that not allowing him to recross-examine K.A.M.
on this issue deprived him of his constitutional right to confront and cross-examine the State’s
witness.
       The questioning to which Lester refers occurred at the end of the State’s redirect
examination of K.A.M. where the prosecutor asked her a series of questions as follows:
       [Prosecutor]: Okay. You know, [defense counsel] earlier on asked you what you
                     thought could happen if a person--if you lied, for instance, in the
                     courtroom.
                             Do you remember that--those questions?
       [K.A.M.]:     Yes.
       [Prosecutor]: Now, when he asked you, do you think that the Judge could put
                     you in jail [if you lied], you shrugged your shoulders. Did I get
                     that right? Did you go like this--
       [K.A.M.]:     Yes.
       ....
       [Prosecutor]: Okay. And so is it possible--in your brain, do you think it’s
                     possible for a person to go to jail if they lie in court?
       [K.A.M.]:     Yes.
       [Prosecutor]: Okay. You’re just not sure whether [the judge] would do that to
                     you?

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       [K.A.M.]:       Yes.
       [Prosecutor]:   Okay.
       [K.A.M.]:       But I know I would be in big trouble.
       [Prosecutor]:   Okay. Do you think that grownups can tell when a kid is lying?
       [K.A.M.]:       Yes.
       [Prosecutor]:   Do you think these grownups can tell if . . . you’re lying?
       [K.A.M.]:       Yes.
       [Prosecutor]:   Do you think [the judge] can tell if you’re lying?
       [K.A.M.]:       Yes.

After the State concluded its redirect examination, defense counsel, while acknowledging the
judge’s general policy not to allow recross-examination, asked if he could recross-examine
K.A.M. The district court denied the request, stating the request was against its general policy
and that defense counsel had a “full opportunity to cross-examine.” Defense counsel then made
an offer of proof, stating he “would have asked the child if she had ever told a lie before.”
Defense counsel explained he had been allowed to ask the question during the first trial and the
prosecutor’s “redirect, talking about what would happen if [K.A.M.] told a lie in court,
reintroduced the question of her telling a lie.”     The district court again denied Lester the
opportunity to conduct recross-examination, noting counsel could have asked K.A.M. the
proposed question on cross-examination.
       The control of cross-examination is committed to the sound discretion of the trial judge.
State v. Rauch, 144 Idaho 682, 685, 168 P.3d 1029, 1032 (Ct. App. 2007). Thus, trial courts
retain wide latitude to impose limits on cross-examination that is harassing, confusing, repetitive,
or only marginally relevant. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); State v.
Downing, 128 Idaho 149, 153, 911 P.2d 145, 149 (Ct. App. 1996).               However, the Sixth
Amendment of the United States Constitution guarantees the right of every criminal defendant to
be confronted with the witnesses against him, and the primary right that is secured under this
provision is the right of cross-examination. See Davis v. Alaska, 415 U.S. 308, 315 (1974).
Specifically, in regard to recross-examination, when new evidence is admitted on redirect
examination, the opposing party must be given the right of recross-examination on the new
material. State v. Miles, 97 Idaho 396, 399, 545 P.2d 484, 487 (1976), overruled on other
grounds by State v. Bottelson, 102 Idaho 90, 92, 625 P.2d 1093, 1097 (1981). However, it
should be noted that although a criminal defendant’s constitutional right of confrontation
includes the opportunity to mount a vigorous attack upon the credibility of witnesses against


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him, the right to confront adverse witnesses is not absolute. Downing, 128 Idaho at 152, 911
P.2d at 148.          The Confrontation Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to whatever
extent, the defense might wish. Delaware v. Fensterer, 474 U.S. 15, 20 (1985); see also
Downing, 128 Idaho at 152-53, 911 P.2d at 148-49.
       Here, Lester asserts the prosecutor engaged in an “entirely new line of questioning . . .
opened up by the State solely during re-direct examination.” As the State points out, however,
Lester himself engaged in a very similar line of questioning during his cross-examination of
K.A.M., as follows:
       [Defense counsel]:     . . . What do you think would happen to you if you didn’t
                              tell us the truth?
       [K.A.M.]:              I would get in very big trouble.
       [Defense counsel]:     And what kind of trouble would that be?
       [K.A.M.]:              Big, big trouble.
       [Defense counsel]:     What does that mean to you?
       [K.A.M.]:              I would be gone for a long time from my dad, and I would
                              get in trouble from the Judge.
       [Defense counsel]:     What do you think the Judge would do to you?
       [K.A.M.]:              I don’t know.
       [Defense counsel]:     Do you think he’d put you in jail?
       [K.A.M.]:              I don’t know.
       ....
       [Defense counsel]:     . . . There’s no real way for the Judge to know whether
                              you’re telling the truth or not, is there?
       [K.A.M.]:              I don’t know.
       [Defense counsel]:     Because he . . . wasn’t there in parts of your life that you
                              would be telling him about, right?
       [K.A.M.]:              Yes.

       After an examination of the record, we conclude there was no “new” evidence elicited by
the prosecutor such that Lester was entitled to recross-examination. During cross-examination, it
was Lester who first asked K.A.M. whether the trial judge could tell whether she was lying or
not. And while the prosecutor somewhat expanded the scope of the question to also inquire
whether K.A.M. believed grown-ups in general could tell whether she was lying, the difference
was not substantively significant, as the general thrust of the questioning was the same. It was
Lester himself who initially explored this general area of credibility, which the prosecutor then
revisited in her redirect examination. Accordingly, the trial court was within its discretion to
limit recross-examination in this instance and did not err in doing so.

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B.     Prosecutorial Misconduct
       Lester also contends the prosecutor improperly commented on his pre-arrest,
pre-Miranda 1 silence in closing arguments and the district court erred in overruling his
contemporaneous objection to said comment. On appeal, he argues the comment comprised
reversible error.
         Although 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) (quoting State
v. Estes, 111 Idaho 423, 427-28, 725 P.2d 128, 132-33 (1986)).              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. When there has been a contemporaneous objection we
determine factually if there was prosecutorial misconduct, then we determine whether the error
was harmless. State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010). A conviction will
not be set aside for small errors or defects that have little, if any, likelihood of having changed
the results of the trial. State v. Pecor, 132 Idaho 359, 367-68, 972 P.2d 737, 745-46 (Ct. App.
1998). Thus, where the defendant meets his initial burden of showing that a violation occurred,
the State then has the burden of demonstrating to the appellate court beyond a reasonable doubt
that the constitutional violation did not contribute to the jury’s verdict. Perry, 150 Idaho at 227,
245 P.3d at 979.
       We turn first to the question of whether misconduct occurred. The Fifth Amendment of
the United States Constitution guarantees that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself . . . .” Therefore, a prosecutor may not introduce
evidence of the defendant’s pre-arrest silence during a “custodial interrogation” or post-arrest
silence for the purpose of inferring admission of guilt. Miranda v. Arizona, 384 U.S. 436,
467-68 (1966); State v. Hodges, 105 Idaho 588, 591, 671 P.2d 1051, 1054 (1983); State v.
McMurry, 143 Idaho 312, 314, 143 P.3d 400, 402 (Ct. App. 2006). In other words, a defendant’s
decision to exercise his or her right to remain silent either before or after his or her arrest cannot
later be used in the State’s case-in-chief for the purpose of inferring guilt. State v. Moore, 131



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



                                                  5
Idaho 814, 820, 965 P.2d 174, 180 (1998); State v. Lopez, 141 Idaho 575, 577, 114 P.3d 133, 135
(Ct. App. 2005).
          The statement at issue occurred during the prosecutor’s closing argument, where she
stated:
                  Ladies and gentlemen, I told you at the beginning of this case that you
          would know that the defendant sexually molested [K.A.M.] and that he did that
          while . . . she was having these short visits with her mom; and that you would
          know that because of what you hear from her. Not because [Lester] ran out and
          felt guilty and told anybody about it and then wanted to be found out. In fact, it
          was quite the opposite.

(Emphasis added.) Lester immediately objected, stating: “It seems as though she’s making an
inference on the presumption of innocence and the burden of--the right to remain silent when she
makes statements that he didn’t run out and confess to this.” While noting it understood the
basis, the district court quickly overruled the objection.
          On appeal, Lester contends this statement was a direct comment on his pre-arrest,
pre-Miranda silence by arguing to the jury that Lester’s failure to initiate contact with police was
proof he was attempting to hide his guilt. The State counters, however, this was not a comment
on Lester’s silence, but was referencing his statements to Detective Tucker during a voluntary
interview, wherein Lester repeatedly denied K.A.M.’s allegations. In other words, the State
argues the prosecutor was merely stating that Lester had verbally denied any wrongdoing when
the investigation commenced.
          As the State points out, the uncontradicted testimony at trial indicated that when
confronted by the allegations by Detective Tucker, Lester verbally denied them.            Read in
context, the statement at issue does not assert differently.      Thus, this case is immediately
distinguishable from the litany of cases where Idaho appellate courts have found prosecutorial
misconduct when prosecutors have commented on defendants’ silence when confronted with
allegations and/or evidence. See e.g., State v. Strouse, 133 Idaho 709, 713, 992 P.2d 158, 162
(1999) (holding prosecutor’s use of defendant’s post-Miranda silence, in case where defendant
was claiming self-defense, was improper where the prosecutor used defendant’s failure to tell
police his version of the story or to reveal the location of the weapon to imply guilt); Lopez, 141
Idaho at 578, 114 P.3d at 137 (finding improper use at trial of defendant’s silence after being
confronted by police about the crime). However inartfully crafted, we conclude the prosecutor’s


                                                  6
statement in this instance did not implicate Lester’s right to remain silent. Given the context of
the statement, the most logical interpretation is that the prosecutor was merely reiterating to the
jury that the only testimony pointing to Lester’s culpability would be K.A.M.’s because Lester
had not admitted guilt, and in fact, he had done the “opposite” by denying his guilt. In other
words, the prosecutor was simply telling the jury this was a classic “he said, she said” case. This
does not comprise an improper comment on Lester’s silence--rather, it merely reiterates his
denial of the charges, and in fact, if anything, was helpful to Lester.
        The interpretation of the statement argued by Lester’s counsel at trial--that it was a
comment on Lester’s failure to confess his actions to police after the alleged incident
occurred--does not make sense in this context. Lester’s defense at trial was that the conduct did
not occur--thus, his failure to feel “guilty” and confess after the incident is merely an extension
of this defense. In other words, the prosecution could not have logically used his failure to
confess as an inference of guilt in this case because if, as Lester contends, the incident did not
occur, there would be no reason for him to have “ran out and felt guilty and told anybody about it
and then wanted to be found out.” See Miranda, 384 U.S. at 467-68 (disallowing prosecutorial
use of evidence of a defendant’s silence for the purpose of inferring admission of guilt). To
interpret the statement as Lester argues would have us read it in the most negative, and indeed
illogical, connotation possible. As we stated in State v. Eldred, 148 Idaho 317, 321, 222 P.3d
1011, 1015 (Ct. App. 2009), the United States Supreme Court has held:
                Isolated passages of a prosecutor’s argument, billed in advance to the jury
        as a matter of opinion not of evidence . . . like all closing arguments of counsel,
        are seldom carefully constructed in toto before the event; improvisation frequently
        results in syntax left imperfect and meaning less than crystal clear. While these
        general observations in no way justify prosecutorial misconduct, they do suggest
        that a court should not lightly infer that a prosecutor intends an ambiguous
        remark to have its most damaging meaning or that a jury, sitting through lengthy
        exhortation, will draw that meaning from the plethora of less damaging
        interpretations.

Id. (emphasis added) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 646-47 (1974)).
Accordingly, we conclude the prosecutor’s statement did not constitute misconduct in this
instance. 2

2
       Lester also contends the cumulative error doctrine requires reversal. However, because
Lester has failed to demonstrate there are multiple errors to cumulate, the cumulative error

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                                              III.
                                       CONCLUSION
       The district court did not err in limiting recross-examination where no new evidence was
introduced on redirect examination such that Lester’s right to confrontation was infringed upon.
Nor did the prosecutor commit misconduct in her closing argument by impermissibly
commenting on Lester’s silence. Accordingly, Lester’s judgment of conviction entered upon a
jury verdict finding him guilty of lewd conduct with a minor under sixteen years of age is
affirmed.
       Chief Judge GRATTON and Judge MELANSON CONCUR.




doctrine does not apply. State v. Norton, 151 Idaho 176, 194-95, 254 P.3d 77, 95-96 (Ct. App.
2011).

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