                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 44556

STATE OF IDAHO,                                 )
                                                )
       Plaintiff-Respondent,                    ) Boise, May 2018 Term
                                                )
v.                                              ) Filed: September 14, 2018
                                                )
JOHN JACOB BERNAL,                              ) Karel A. Lehrman, Clerk
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fourth Judicial District, State
       of Idaho, Ada County. Hon. Deborah A. Bail, District Judge.

       The judgment of the district court is affirmed.

       Eric D. Fredericksen, State Appellate Public Defender, for Appellant.
       Sally Jane Cooley argued.

       Hon. Lawrence G. Wasden, Attorney General, for respondent.
       Theodore Steven Tollefson argued.
                 ________________________________________________

BEVAN, Justice
       John Jacob Bernal appeals his judgment of conviction. Bernal argues a fatal variance
between the charging document and two jury instructions denied him due process amounting to
fundamental error. Bernal also contends two instances of prosecutorial misconduct amounted to
fundamental error. We affirm the district court’s judgment of conviction.
                   I. FACTUAL AND PROCEDURAL BACKGROUND
       Carmen Becerra and Bernal dated for approximately eight years. By March 2016, their
relationship was strained. One afternoon, Carmen was visiting her cousin’s house in Meridian.
Bernal showed up and asked her if they could talk. Carmen agreed to meet Bernal at his aunt’s
house in Boise. Carmen left her cousin’s house in an SUV; Bernal left in a blue Buick. On their
way to Boise, both Carmen and Bernal drove down Five Mile Road until they were stopped by
road construction. While they were stopped, Bernal got out of his vehicle and walked toward



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Carmen, who was stopped behind him. Carmen testified Bernal looked angry, so she turned onto
a side street to avoid a confrontation.
       Carmen testified she was driving fast so she could get away from Bernal, but he got back
into his vehicle and followed her. She stated she was scared because Bernal was “tailing her.”
She continued driving through various side streets to avoid Bernal, and when she turned onto
Granger Avenue, she sped up. Carmen testified that Bernal was matching her speed. While
Bernal was following Carmen, she was on the phone with her brother, Gustavo Becerra. Gustavo
testified that he could hear screaming, speeding, braking, commotion, and then Carmen abruptly
hung up.
       While on Granger Avenue, Carmen hit her brakes, causing Bernal to lose control, spin
out, and crash into a parked vehicle. The owner of the parked vehicle, Mr. Le, testified he saw a
blue Buick hit his vehicle, but could not positively identify the driver. After the collision,
Carmen waited to see if Bernal was okay. After Bernal exited his vehicle, Carmen drove to her
home where she lived with her mother, Gustavo, and Gustavo’s family. Gustavo, who was not at
home at the time, drove to their house where he met Carmen and let her inside.
       Gustavo testified when he was a few blocks from his house, he saw Bernal “very fast-
paced, walking, look[ing] determined, with his hands in his pocket” heading toward the house.
Gustavo stated he was worried about his family, especially his wife and son, so when he got
home, he grabbed a baseball bat, stepped outside, placed the bat against the side of the house,
and waited for Bernal to arrive. Almost immediately, Bernal arrived on foot. As Bernal was
approaching the house, Gustavo told Bernal to leave. As Bernal got closer, Gustavo testified that
he saw Bernal’s hand in his pocket and that “he had ahold of something” as he was walking
toward him. When Bernal made it halfway through the yard, Gustavo, who was still on the
porch, picked up his baseball bat.
       After seeing the knife, Gustavo testified he hit Bernal in the left leg with the bat. After he
was hit, Bernal took a step back, extended the blade of his knife, and assumed an aggressive
posture. Gustavo stated that when he saw the knife he backed up and told Bernal to leave. Bernal
then asked for a ride, started walking toward the front door, and lunged at Gustavo when he
stepped in his way. Gustavo again hit Bernal with the bat, this time in the ribs. Gustavo testified
that Bernal backed up and told him, “I’ll be back,” “I’m gonna catch you sleeping,” and then
“I’m gonna F you up.” According to Gustavo, Bernal kept making threats as he walked away.

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Gustavo followed Bernal to escort him off the property. Gustavo stated Bernal made his way into
the street, then “whipped the knife out of his pocket,” turned around, and lunged at him. Gustavo
backed up to dodge the knife and stayed in his yard as Bernal made additional threats, turned
around, and slowly walked away. Gustavo testified that the knife missed his face by only three to
four inches. In addition to Gustavo’s testimony regarding the assault, Carmen testified that she
saw Bernal lunge toward Gustavo and saw Gustavo hit Bernal with the bat.
       Bernal was charged by information with three crimes: aggravated assault with a deadly
weapon, Idaho Code sections 18-901(a) and 18-905(a); reckless driving, Idaho Code section 49-
1401; and leaving the scene of an accident, Idaho Code section 49-1301. The State also charged
a sentencing enhancement under Idaho Code section 19-2520 as a separate count in the
information. 1 At the close of evidence at trial, Bernal did not object to the proposed jury
instructions. During closing arguments, Bernal argued he did not have a knife, that Gustavo was
not a credible witness, and that Gustavo was the aggressor. He also argued that Mr. Le did not
identify him as the driver and “[w]e don’t really know whose car, if any, Mr. Bernal hit.”
Additionally, Bernal argued Carmen credibly testified, contrary to her previous statement to the
police, that she did not see Bernal with a knife.
       The jury found Bernal guilty on all counts, including the sentencing enhancement, and
the district court entered judgment. Bernal timely filed a notice of appeal.
                                  II. STANDARD OF REVIEW




1
         A sentencing enhancement is not an independent crime and therefore does not constitute
a separate cause of action. See State v. Passons, 163 Idaho 643, ___, 417 P.3d 240, 243 (2018)
(Idaho Code section 19-2520 “does not prescribe a new offense but provides only for the
imposition of additional punishment upon conviction of an underlying offense where a firearm or
other deadly weapon was involved”) (internal quotes omitted). Thus, the State’s practice of
charging a sentencing enhancement as a separately enumerated count is potentially confusing.
The Idaho Criminal Jury Instructions intimate that the better practice is that such allegations
should be classified as “part two” of the criminal count to which the enhancement relates. See
I.C.J.I. 222 (verdict form referencing an enhancement as charged in “part II”). Charging other
enhancements in “part II” of the information is routine for charges relative to a defendant’s
persistent violator status pursuant to Idaho Code section 19-2514, being a repeat DUI offender,
Idaho Code sections 18–8004, 18–8005(6) or felony enhancement of a misdemeanor domestic
battery charge. Idaho Code section 18–918(3)(c). We would encourage prosecutors to charge
weapons enhancements in a similar way.


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       “Where a defendant alleges that a constitutional error occurred at trial, we must first
determine whether a contemporaneous objection was made.” State v. Hall, 163 Idaho 744, 766,
419 P.3d 1042, 1064 (2018) (citing State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010)). If the
alleged error was not followed by a contemporaneous objection, it must be reviewed under the
fundamental error doctrine. Perry, 150 Idaho at 228, 245 P.3d at 980. In order to obtain relief
under the fundamental error doctrine, a defendant must demonstrate: (1) “one or more of the
defendant’s unwaived constitutional rights were violated”; (2) the constitutional error is “clear or
obvious” on the record “without the need for any additional information,” including information
“as to whether the failure to object was a tactical decision”; and (3) “the error affected the
defendant’s substantial rights,” by showing a reasonable possibility that the error “affected the
outcome of the trial court proceedings.” Id. at 226, 245 P.3d at 978.
                                   III. ISSUES ON APPEAL
       1. Whether there were fatal variances between the information and the district
          court’s jury instructions.

       2. Whether the State committed prosecutorial misconduct during closing
          arguments.

                                         IV. ANALYSIS
A.     The variances between the information and the jury instructions do not amount to
       fundamental error.

       Jury instructions should match the allegations in the charging document as to the means
by which a defendant is alleged to have committed the charged crime. State v. Hooper, 145
Idaho 139, 146–47, 176 P.3d 911, 918–19 (2007). Failure to do so creates a variance. State v.
Folk, 151 Idaho 327, 342, 256 P.3d 735, 750 (2011). A variance becomes fatal when it violates
due process. See State v. Cariaga, 95 Idaho 900, 904, 523 P.2d 32, 36 (1974); De Jonge v.
Oregon, 299 U.S. 353, 362 (1937). In other words, it “depends on whether or not the basic
functions of the [notice] pleading requirement have been met.” State v. Windsor, 110 Idaho 410,
417, 716 P.2d 1182, 1189 (1985). As the United States Supreme Court stated:
       The general rule that allegations and proof must correspond is based upon the
       obvious requirements (1) that the accused shall be definitely informed as to the
       charges against him, so that he may be enabled to present his defense and not be
       taken by surprise by the evidence offered at the trial; and (2) that he may be
       protected against another prosecution for the same offense.
Berger v. United States, 295 U.S 78, 82 (1935) (citations omitted).
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          Applying this standard presents a two-step process. State v. Gas, 161 Idaho 588, 592, 388
P.3d 912, 916 (Ct. App. 2016). First, the appellate court determines whether there was a variance
between the information used to charge the crime and the instruction presented to the jury. Id.
Second, if a variance does exist, then the court examines whether it rises to the level of
prejudicial error requiring reversal of the conviction, i.e., whether it is fatal. Id. “A variance
between a charging instrument and a jury instruction necessitates reversal only when it deprives
the defendant of the right to fair notice or leaves him or her open to the risk of double
jeopardy.” 2 Id. The notice element requires this Court to determine whether the defendant was
misled or embarrassed in the preparation or presentation of his or her defense. Windsor, 110
Idaho at 418, 716 P.2d at 1190.
          In Folk, this Court found a fatal variance existed when a jury instruction permitted a jury
to find the defendant guilty of crimes not charged in the information. Folk, 151 Idaho at 342, 256
P.3d at 750. In State v. Brazil, the Idaho Court of Appeals found error when a “variance between
the information and the jury instructions [regarding the charged crime] prejudiced [the
defendant] in the presentation of his defense.” Brazil, 136 Idaho 327, 331, 33 P.3d 218, 222
(2001).
          1.     The variance between the information and Jury Instruction Number 12 was not
                 fatal.
          Bernal argues a fatal variance between the information and Jury Instruction No. 12, the
reckless driving instruction, violated his right to due process, amounting to fundamental error.
The State alleged in the information that Bernal’s reckless driving occurred on Five Mile Road,
while Instruction No. 12 referenced driving “upon a highway . . . open to the public.” Bernal
contends the instruction lessened the State’s burden of proof, allowing the State to argue an
expanded theory of reckless driving which surprised and embarrassed Bernal in the preparation
or presentation of his defense.
          We agree the discrepancy between the information and Jury Instruction No. 12 created a
variance which allowed the State to proceed upon an expanded theory of reckless driving.
Without the variance, the State would not have been permitted to refer to the witness’ discussion
of reckless driving beyond Five Mile Road by stating, “[i]t happened on Five Mile, it happened
on Granger; these are public roads,” in its closing statement.
2
       On appeal, Bernal does not argue that any variance left him open to the risk of double
jeopardy. There is no reason to believe he might be subject to a second prosecution.
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       However, we conclude the variance was not fatal because Bernal had notice that his
driving on Granger Avenue was also at issue--the information, in another count, stated Bernal:
       was the driver of a vehicle involved in an accident resulting in damage to a
       vehicle . . . [on] Granger Ave. and failed to immediately stop at the scene of the
       accident and/or remain at the scene of the accident until he had fulfilled the
       requirements of the law.
Because Bernal had notice his conduct on Granger Avenue was also at issue, he was not misled
or embarrassed in the preparation or presentation of his defense. See Windsor, 110 Idaho at 418,
716 P.2d at 1190. In fact, Bernal responded to witness testimony about his conduct on Granger
Avenue in his closing argument. For example, Bernal stated:
       As to the reckless driving, the testimony is that Carmen’s driving down the road
       [Granger Avenue], [Bernal’s] behind her, she slams on his [sic] brakes, and he
       goes to avoid a collision and hits a car. That’s Carmen’s testimony. That’s not
       reckless driving if she slams on his brakes--on her brakes and he goes to avoid a
       collision.
Thus, Bernal put on a defense specifically against the theory of his reckless driving on Granger
Avenue by arguing it was Carmen who drove recklessly. Accordingly, the variance was not fatal
and Bernal’s due process rights were not violated. As a result, Bernal fails to establish the first
prong of the fundamental error test.
       2.      The variance between the information and Jury Instructions Numbers 8 and 9 was
               not fatal.
       Bernal also argues that a fatal variance between the information; Jury Instruction No. 8,
the aggravated assault instruction; and Jury Instruction No. 9, the instruction defining assault,
violated his right to due process, amounting to fundamental error. In the information, the State
alleged Bernal “did unlawfully and with apparent ability, attempt to commit a violent injury
upon the person of Gustavo Becerra, with a deadly weapon, to-wit: a knife and/or by a means
likely to produce great bodily harm, to-wit: by attempting to stab Gustavo Becerra with a knife.”
Jury Instruction No. 8 was consistent with the information’s assault-by-attempt theory: “the
defendant John Jacob Bernal committed an assault upon Gustavo Becerra by attempting to stab
him with a knife.” However, Bernal contends Jury Instruction No. 9 allowed the State to also
argue an assault-by-threat theory. Jury Instruction No. 9 reads:
       An “assault” is committed when a person:
       (1)     unlawfully attempts, with apparent ability, to commit a violent injury on
               the person of another; or


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       (2)     intentionally and unlawfully by word or act to do violence to the person of
               another, with an apparent ability to do so, and does some act which creates
               a well-founded fear in the other person that such violence is imminent.
               “Imminent” means about to take place.
(Emphasis added).
       As Bernal contends, Jury Instruction No. 9 allowed the State to pursue an assault
conviction upon an additional theory, assault-by-threat, not alleged in the information. Thus, the
instruction did not match the allegations in the information, creating a variance. See Folk, 151
Idaho at 342, 256 P.3d at 750; State v. Day, 154 Idaho 476, 479, 299 P.3d 788, 791 (2013).
       However, we conclude the variance was not fatal because Bernal had notice that the
assault-by-threat theory was also at issue--the information alleged Bernal “with a deadly
weapon,” “attempt[ed] to stab Gustavo Becerra with a knife.” This allegation in the information
provided notice to Bernal that the State may also prove its case under an assault-by-threat theory.
Specifically, assault-by-threat is committed when one “does some act which creates a well-
founded fear in the other person.” Thus, Bernal was not misled or embarrassed in the preparation
or presentation of his defense. See Windsor, 110 Idaho at 418, 716 P.2d at 1190. Because Bernal
fails to prove the first prong of the fundamental error doctrine for either variance, we need not
address the second and third prongs of that doctrine.
B.     The prosecutor’s statements in closing argument do not amount to fundamental
       error.
       Prosecutorial misconduct occurs when the State “attempts to secure a verdict on any
factor other than the law as set forth in the jury instructions and the evidence admitted at trial,
including reasonable inferences that may be drawn from that evidence.” State v. Abdullah, 158
Idaho 386, 440, 348 P.3d 1, 55 (2015) (quoting Perry, 150 Idaho at 227, 245 P.3d at 979)).
“Indeed, the prosecutor has a duty to avoid misrepresentation of the facts and unnecessarily
inflammatory tactics.” State v. Moses, 156 Idaho 855, 871, 332 P.3d 767, 783 (2014) (internal
quotations and citation omitted).
       If a prosecutor expresses an opinion as to the credibility of a witness, it must be based on
the evidence and should not be couched in terms of a personal opinion. State v. Garcia, 100
Idaho 108, 111 n.1, 594 P.2d 146, 149 n.1 (1979). “A prosecutor can improperly vouch for a
witness by placing the prestige of the [S]tate behind the witness or referring to information not
given to the jury that supports the witness.” State v. Wheeler, 149 Idaho 364, 368, 233 P.3d 1286,
1290 (Ct. App. 2010) (citing United States v. Edwards, 154 F.3d 915, 921 (9th Cir. 1998)); see
                                                7
also State v. Lankford, 162 Idaho 477, 497, 399 P.3d 804, 824 (2017). However, prosecutors
may “argue reasonable inferences based on the evidence, including that one of the two sides is
lying. Furthermore, prosecutors are permitted to respond to defense counsel’s attempts to
impeach the credibility of government witnesses.” Id. (internal quotations omitted) (citing United
States v. Wilkes, 662 F.3d 524, 540 (9th Cir. 2011)).
       1.      The prosecutor did not commit prosecutorial misconduct by arguing both theories
               of assault.
       Bernal argues the prosecutor committed misconduct by telling the jury in closing
argument that the State had proven Bernal committed assault under an assault-by-attempt theory,
and under an assault-by-threat theory. During closing argument, the prosecutor stated:

                . . . the legal definition of an assault.
               It happens in two different ways. Either one of--one of two ways. So, you
       see that there’s an or there, not an and. So, that means that the State can prove this
       by showing either one or two, or even both if--if both are established, but not
       both. It doesn’t have to be both; just one of--one or the other.
The prosecutor then paraphrased the instruction, articulating the assault-by-attempt and assault-
by-threat theories. After a recitation of the facts, the prosecutor argued how the facts supported a
finding of guilt on both theories: “So, it’s an assault under the definition No. 1. It’s also an
assault under No. 2 . . . Those are threatening words. But there’s also threatening actions . . .”
       Bernal’s argument is unavailing as we have held the discrepancy between the information
and jury instruction did not amount to a fatal variance. This is because attempting to stab
someone with a knife, as alleged in the information, constitutes an assault-by-threat. Thus, the
prosecutor did not commit misconduct by arguing both theories of assault. Accordingly, Bernal
has failed to demonstrate a violation of his due process rights in order to establish the first prong
of the fundamental error test.
       2.      The prosecutor did not commit prosecutorial misconduct by impermissibly
               bolstering the testimony of the State’s witnesses.
       Bernal agues the prosecutor also committed misconduct by vouching for the credibility of
the State’s witnesses: Carmen, Gustavo, and Mr. Le. In doing so, Bernal claims the prosecutor
attempted to secure the verdict on facts and evidence other than those presented at trial,
appealing to the passions and prejudices of the jury, and violating Bernal’s right to due process.
       The prosecutor did not impermissibly vouch for the credibility of the State’s witnesses.
The record shows the prosecutor’s statements were based on inferences from evidence adduced

                                                    8
at trial or were responses to Bernal’s attempts to impeach the State’s witnesses. For example,
after Bernal attacked Carmen’s credibility as a witness in his closing statement, the prosecutor
argued Carmen was credible:

               Let’s talk about Carmen. Carmen changed her story. Defense counsel and
       I agree; she did. And her change of store [sic]--her change in story really shows
       one thing, she’s honest. Because what happened was, she wrote a statement at the
       scene. She was emotional, she was frightened. She has just gone through a very
       scary ordeal with this whole driving thing, and then her ex-boyfriend showing up
       at her house and her brother getting into a scuffle with him. And, you know,
       she’s--she’s pretty upset and she’s writing a statement.
              And in her statement, she says something about the defendant having a
       knife. Well, today she--she cleared that up, and she said, well, I actually didn’t see
       a knife, I couldn’t see his hand. I saw him lunge at my brother. Ladies and
       gentlemen, that shows that she’s honest. She just wants to tell the truth.
The record shows the prosecutor and Bernal agreed on a reasonable inference from the evidence
presented at trial--that because Carmen was willing to admit to misstatements, her testimony was
credible.
       Similarly, when Bernal attacked Gustavo’s credibility as a witness, the prosecutor
responded in his closing argument:

       . . . Gustavo doesn’t necessarily change his story ever. What he does is he
       provides details. And, ladies and gentlemen, this is a complex story, with people,
       and vehicles, and time, and it can get complicated as to keeping track of exactly
       how many seconds went by, exactly what [Bernal] did with the knife at what time.
Again, based on the inferences from the evidence presented, Bernal has failed to show any
impermissible vouching arising from the prosecutor’s responsive closing argument about
Gustavo’s credibility.
       Last, Bernal argues the prosecutor impermissibly vouched for Mr. Le’s credibility. The
prosecutor, referring to the testimony of Mr. Le, stated he is “a person who doesn’t know
Carmen, Gustavo, or John, who sees something happen, and came and . . . he told the truth,” and
that his testimony provided the jury:
       with another very interesting piece that gives credibility to Carmen and Gustavo’s
       testimony. While his testimony was small, and while he was only talking about
       the vehicle running into his, just that detail gives you a lot because what you get
       from that is you get a person who’s completely disinterested . . .




                                                 9
       So, [he] provides you with this valuable testimony that gets--that gives credibility
       to the rest of the story, to what’s going on, the defendant’s escalating conduct;
       violent, reckless, and intimidating.
Again, the State was responding to Bernal’s closing argument that Mr. Le was not credible,
namely that Mr. Le could not identify Bernal as the driver of the vehicle. The argument that
Mr. Le had no motivation to fabricate a story because he was a disinterested witness was a
reasonable inference based upon the admitted evidence.
       Because the prosecutor’s statements regarding the credibility of the State’s witnesses do
not amount to impermissible vouching testimony, Bernal’s due process rights were not violated.
Thus, Bernal has failed to establish prong one of the fundamental error test. Because Bernal fails
to prove the first prong, we need not address the second and third prongs of fundamental error.
                                      V. CONCLUSION
       Bernal has failed to show fundamental error arose from an impermissible variance or
from prosecutorial misconduct. Therefore, we affirm the judgment of conviction.
       Chief Justice BURDICK, Justices HORTON, BRODY and Justice pro tem
GUTIERREZ, CONCUR.




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