                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 46088

KYLE STEVEN BOWER,                               )
                                                 )    Filed: September 27, 2019
       Petitioner-Appellant,                     )
                                                 )    Karel A. Lehrman, Clerk
v.                                               )
                                                 )    THIS IS AN UNPUBLISHED
STATE OF IDAHO,                                  )    OPINION AND SHALL NOT
                                                 )    BE CITED AS AUTHORITY
       Respondent.                               )
                                                 )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Gene A. Petty, District Judge.

       Judgment dismissing petition for post-conviction relief, affirmed.

       Fyffe Law, LLC; Robyn Fyffe, Boise, for appellant. Robyn Fyffe argued.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent. Mark W. Olson argued.
                 ________________________________________________

GRATTON, Chief Judge
       Kyle Steven Bower appeals from the district court’s judgment dismissing his petition for
post-conviction relief with prejudice. Bower argues that the district court erred in dismissing his
petition after an evidentiary hearing. For the reasons set forth below, we affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Bower was indicted for lewd conduct, Idaho Code § 18-1508, (Count I) and sexual abuse,
I.C. § 18-1506, (Count III) for acts involving his daughter, K.B. In addition, Bower was indicted
for lewd conduct, I.C. § 18-1508, (Count II) for acts involving his girlfriend’s daughter, J.B.
Bower’s first trial ended in a mistrial after the jury was unable to reach a verdict. After Bower’s
second trial, the jury returned a verdict of guilty on all three counts. Following trial, Bower filed
a direct appeal challenging the district court’s denial of his motion to sever the charges relating



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to each victim. This Court upheld the district court’s order denying the motion to sever under
Idaho Criminal Rule 14 and affirmed Bower’s judgment of conviction.
        In June 2016, Bower filed a pro se petition for post-conviction relief. As relevant to his
claims on appeal, Bower alleged:           (1) various instances of prosecutorial misconduct;
(2) ineffective assistance for trial counsel’s failure to retain expert witnesses to rebut the State’s
experts; (3) ineffective assistance for trial counsel’s failure to move to sever the charges pursuant
to I.C.R. 8(a); and (4) ineffective assistance for trial counsel’s failure to object to the duplicity
contained in Counts I and III.       Bower was appointed post-conviction counsel.           After an
evidentiary hearing was held on Bower’s petition, the district court dismissed Bower’s claims.
The court found that:      (1) Bower’s prosecutorial misconduct claims were barred by I.C.
§ 19-4901(b) and otherwise failed on the merits; and (2) Bower failed to show that he was
entitled to relief on his ineffective assistance of trial counsel claims. Bower timely appeals.
                                                 II.
                                            ANALYSIS
A.      Prosecutorial Misconduct Claims
        Bower asserted various prosecutorial misconduct claims in his post-conviction petition.
After an evidentiary hearing, the district court, citing Grove v. State, 161 Idaho 840, 852, 392
P.3d 18, 30 (Ct. App. 2017), concluded that each of Bower’s claims were barred by I.C.
§ 19-4901(b) because they could have been raised on direct appeal and Bower did “not show[]
by substantial evidence that, in the exercise of due diligence, this information could not have
been presented earlier.”
        On appeal, Bower argues that the district court erred in relying on this Court’s decision in
Grove. Bower contends that this Court’s interpretation of I.C. § 19-4901(b), as set forth in
Grove, was incorrect. Although Bower acknowledges that Idaho case law precludes raising
prosecutorial misconduct claims in petitions for post-conviction relief because they could have
been raised on direct appeal, Bower contends that Idaho appellate authority standing for that
proposition was wrongly decided. Bower invites this Court to overturn Grove and read I.C.
§ 19-4901(b) to allow petitioners to bring direct constitutional claims in post-conviction
petitions.
        Stare decisis dictates that we follow controlling precedent unless it is manifestly wrong, it
has proven over time to be unjust or unwise, or overturning it is necessary to vindicate plain,

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obvious principles of law and remedy continued injustice. Reyes v. Kit Mfg. Co., 131 Idaho 239,
240, 953 P.2d 989, 990 (1998); Hughes v. State, 148 Idaho 448, 462, 224 P.3d 515, 529 (Ct.
App. 2009).
       The Uniform Post-Conviction Procedure Act specifies that a post-conviction petition “is
neither a substitute for nor does it affect any remedy incident to the proceedings in the trial court,
or of an appeal from the sentence or conviction.” I.C. § 19-4901(b). It continues by specifying
that “Any issue which could have been raised on direct appeal, but was not, is forfeited and may
not be considered in post-conviction.” In addition, I.C. § 19-4901(b) states that, in order to
overcome its procedural bar, a party must make a “substantial factual showing by affidavit,
deposition or otherwise, that the asserted basis for relief raises a substantial doubt about the
reliability of the finding of guilt and could not, in the exercise of due diligence, have been
presented earlier.”
       In Grove, this Court held that petitioners cannot raise prosecutorial misconduct claims in
post-conviction proceedings without overcoming I.C. § 19-4901(b)’s procedural bar because
prosecutorial misconduct claims can be raised on direct appeal. See Grove, 161 Idaho at 852,
392 P.3d at 30. Bower argues that this Court’s restrictive reading of I.C. § 19-4901(b) in Grove
is contrary to the plain language of the statute. Bower claims that a petitioner has no remedy to
overcome an unpreserved constitutional claim that requires development of the factual record
because such a claim cannot be effectively raised either on direct appeal (because the
fundamental error test under State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010)
requires a showing that the error be clear from the record), or in post-conviction (because of I.C.
§ 19-4901(b)’s procedural bar). We are not persuaded by Bower’s argument.
         The precedential cases from this Court and from the Idaho Supreme Court have
repeatedly interpreted I.C § 19-4901 to restrict post-conviction petitions to issues that could not
have been raised on direct appeal, such as ineffective assistance of counsel claims, and to
preclude issues that could have been raised on direct appeal, such as direct constitutional
challenges. See Thumm v. State ___ Idaho ___, ___, ___ P.3d ___, ___, (2019) (substitute
opinion); Baldwin v. State, 145 Idaho 148, 153 n.4, 177 P.3d 362, 367 n.4 (2008); Black v. State,
165 Idaho 100, 104-05, 439 P.3d 1272, 1276-77 (Ct. App. 2019); Grove, 161 Idaho at 852, 392
P.3d at 30; Bias v. State, 159 Idaho 696, 702-03, 365 P.3d 1050, 1056-1057 (Ct. App. 2015). We
will continue to do so.

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       In addition, Bower’s argument that he is left with no recourse because of I.C.
§ 19-4901(b)’s procedural bar in unpersuasive. First, Bower could have raised his unobjected to
prosecutorial misconduct claims as fundamental error on direct appeal. See Grove, 161 Idaho at
852, 392 P.3d at 30. Second, Bower is entitled, but failed, to bring ineffective assistance of
counsel claims in his post-conviction petition for his counsel’s failure to object to the
prosecutor’s conduct. See Bias, 159 Idaho at 703, 365 P.3d at 1057 (finding that “the proper way
for a defendant to challenge an unpreserved trial error is to assert ineffective assistance of trial
counsel in a post-conviction proceeding”). Finally, as set forth above, I.C. § 19-4901 provides
an exception to the procedural bar. However, Bower failed to present the district court with any
evidence or argument to establish the exception. Thus, Bower had opportunities to seek a
remedy for any alleged error but did not pursue any of the avenues set forth above. Regardless,
Bower has not shown that the controlling precedent is manifestly wrong, is unjust or unwise, or
overturning it is necessary to vindicate plain, obvious principles of law. Therefore, the district
court did not err in denying Bower’s prosecutorial misconduct claims.
B.     Ineffective Assistance of Counsel Claims
       Bower asserts trial counsel’s performance was ineffective for failing (1) to retain expert
witnesses, (2) to file the motion to sever, and (3) to object to duplicity contained in Counts I and
III. Following an evidentiary hearing, the district court issued a written order denying each of
Bower’s ineffective assistance of counsel claims.
       In order to prevail in a post-conviction proceeding, the petitioner must prove the
allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865,
869, 801 P.2d 1216, 1220 (1990); Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675, 677 (Ct.
App. 2010). When reviewing a decision denying post-conviction relief after an evidentiary
hearing, an appellate court will not disturb the lower court’s factual findings unless they are
clearly erroneous. I.R.C.P. 52(a); Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004);
Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the
witnesses, the weight to be given to their testimony, and the inferences to be drawn from the
evidence are all matters solely within the province of the district court. Dunlap, 141 Idaho at 56,
106 P.3d at 382; Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We
exercise free review of the district court’s application of the relevant law to the facts. Baxter,
149 Idaho at 862, 243 P.3d at 678.

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       A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post-Conviction Procedure Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct.
App. 2009). To prevail on an ineffective assistance of counsel claim, the petitioner must show
that the attorney’s performance was deficient and that the petitioner was prejudiced by the
deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578,
580, 181 P.3d 504, 506 (Ct. App. 2007). To establish a deficiency, the petitioner has the burden
of showing that the attorney’s representation fell below an objective standard of reasonableness.
Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Knutsen v. State, 144 Idaho
433, 442, 163 P.3d 222, 231 (Ct. App. 2007). To establish prejudice, the petitioner must show a
reasonable probability that, but for the attorney’s deficient performance, the outcome of the trial
would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177; Knutsen, 144 Idaho at
442, 163 P.3d at 231. This Court has long adhered to the proposition that tactical or strategic
decisions of trial counsel will not be second-guessed on appeal unless those decisions are based
on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective
evaluation. Gonzales v. State, 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011). Based on
that standard, we turn our analysis to Bower’s specific challenges.
       1.      Retaining expert witnesses
       Bower argues that he received ineffective assistance of counsel because his attorney
failed to consult with expert witnesses about rebutting the expert testimony presented by the
State in the second jury trial. In response, the State argues that the district court properly
dismissed the claim after concluding that Bower failed to adequately support it.
       At the evidentiary hearing, Bower testified about his conversations with trial counsel
regarding hiring expert witnesses. At the conclusion of Bower’s presentation of evidence, the
State motioned to dismiss pursuant to Idaho Rule of Civil Procedure 41(b)(2). The district court
granted the State’s motion as to this claim, thereby dismissing Bower’s claim on two
independent grounds. First, the district court, citing Self v. State, 145 Idaho 578, 580-81, 181
P.3d 504, 506-507 (Ct. App. 2007), explained in order to justify an evidentiary hearing,
       it is incumbent on the applicant to tender written statements from potential
       witnesses who are able to give testimony themselves as to facts within their
       knowledge. It is not enough to simply allege that an expert should have been
       secured without providing, through affidavits, evidence of the substance of the
       expert’s testimony. Absent an affidavit from the expert explaining what he or she
       would have testified to, or some other verifiable information about what the

                                                5
       substance of the expert’s testimony would have been, a[n] applicant fails to raise a
       genuine issue of material fact.
Based on Self, the district court concluded that Bower neither presented evidence as to the identity
of any expert witnesses that he believed should have been called nor provided any evidence
regarding the content of their testimony. Thus, the district court found that, as a matter of law,
Bower “ha[d] not met his burden under Self to show that his counsel rendered ineffective
assistance for failing to call an expert.” Second, the district court analyzed trial counsel’s
testimony at the evidentiary hearing and concluded that trial counsel’s decision not to retain an
expert was a strategic and tactical decision.
       On appeal, Bower argues that trial counsel’s decision not to hire experts was
unreasonable. However, Bower does not challenge the district court’s conclusion regarding the
sufficiency of the evidence presented. Thus, a basis for a trial court’s ruling is not challenged on
appeal. Therefore, we affirm the district court’s dismissal of this claim on the unchallenged
bases. State v. Goodwin, 131 Idaho 364, 366-67, 956 P.2d 1311, 1313-14 (Ct. App. 1998).
       2.      Motion to sever
       Bower argues that the district court erred in denying his claim that trial counsel was
ineffective for failing to file an I.C.R. 8(a) motion to sever Count II from Counts I and III.
       In a post-conviction proceeding challenging an attorney’s failure to pursue a motion in
the underlying criminal action, the district court may consider the probability of success of the
motion in question in determining whether the attorney’s inactivity constituted ineffective
assistance. Lint v. State, 145 Idaho 472, 477, 180 P.3d 511, 516 (Ct. App. 2008). Where the
alleged deficiency is counsel’s failure to file a motion, a conclusion that the motion, if pursued,
would not have been granted by the trial court, is generally determinative of both prongs of the
Strickland test. Lint, 145 Idaho at 477-78, 180 P.3d at 516-17.
       Additionally, when assessing post-conviction claims for ineffective assistance of counsel,
“this Court does not second-guess strategic and tactical decisions, and such decisions cannot
serve as a basis for post-conviction relief unless the decision is shown to have resulted from
inadequate preparation, ignorance of the relevant law or other shortcomings capable of objective
review.” State v. Payne, 146 Idaho 548, 561, 199 P.3d 123, 136 (2008). “A court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the circumstances,


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the challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
       Prior to the first trial in Bower’s underlying criminal case, counsel moved to sever
Counts I and III, involving K.B., from Count II, involving J.B., such that the charges relating to
each victim would be tried separately. In the motion and during argument on the motion,
counsel did not specify which of the Idaho Criminal Rules (I.C.R. 8 or I.C.R. 14), that Bower
sought the severance. The district court construed the motion as an I.C.R. 14 motion and denied
it. On direct appeal, Bower argued that the district court erred in construing the motion as being
raised pursuant to I.C.R. 14 instead of I.C.R. 8(a). State v. Bower, Docket No. 41336, (Ct. App.
Feb. 13, 2015) (unpublished). However, this Court concluded that the district court correctly
construed the claim as an I.C.R 14 severance motion, Bower failed to preserve an I.C.R. 8(a)
severance argument, and additionally, the State made “at least a prima facie showing” that the
charges should have been joined under I.C.R. 8(a). Bower, Docket No. 41336 (unpublished).
       In his post-conviction petition, Bower argued that his trial counsel was ineffective for
failing to argue the motion to sever under I.C.R. 8. After the evidentiary hearing, the district
court found that the decision by Bower’s trial counsel not to argue I.C.R. 8 was tactical. In
addition, the district court concluded that Bower failed to show that counsel’s performance fell
below an objective standard of reasonableness or that he was prejudiced.
       On appeal, Bower argues that counsel’s decision not to file an I.C.R. 8(a) motion was not
tactical, counsel’s performance was objectively unreasonable, and Bower was prejudiced. The
State argues that (1) this claim is barred by the doctrine of res judicata because this Court has
already concluded in Bower’s direct appeal that an I.C.R. 8(a) motion would have been
unsuccessful; (2) even if res judicata does not apply, the motion would have been unsuccessful;
and (3) trial counsel’s decision not to pursue the motion was strategic. 1
       Because we conclude that Bower has failed to overcome the presumption that the
decision not to file an I.C.R. 8(a) motion was tactical, we need not decide whether an I.C.R. 8(a)


1
        In regard to the State’s res judicata argument, this Court on direct appeal concluded that
“the State made at least a prime facie showing” that the charges should have been joined under
I.C.R. 8(a). State v. Bower, Docket No. 41336, (Ct. App. Feb. 13, 2015) (unpublished). Because
we conclude that a prima facie showing does not establish whether a claim would or would not
have been successful, we decline to extend the doctrine of res judicata to this claim.


                                                  7
motion would have been granted. Here, the district court concluded that “the decision by
Petitioner’s counsel not to argue the motion to sever under I.C.R. 8 was a tactical or strategic
decision that will not be second-guessed by this Court.”         This is a factual finding.     See
Wurdemann v. State, 161 Idaho 713, 721, 390 P.3d 439, 447 (2017) (trial court finding that there
was no strategic or tactical decision is a factual finding). We will not disturb such a finding
unless it is clearly erroneous. Id. In concluding it was reasonable not to file the motion, the
district court explained that trial counsel
       testified at the evidentiary hearing that he considered arguing the motion to sever
       under I.C.R. 8 and applicable case law. He further testified at the hearing that the
       allegations of the victims were remarkably similar. He believed that the
       prosecutor had a strong argument that there was a common scheme or plan under
       I.C.R. 8. Furthermore, based on his experience, he was concerned that even if he
       was successful on an I.C.R. 8 argument, the evidence would be admitted by the
       trial court under I.R.E. 404(b). He also testified that he tailored his argument to
       the trial judge, based on his years of experience practicing in front of the trial
       judge. He believed that arguing prejudice under I.C.R. 14 had a greater chance of
       success with the trial judge.
       These findings are sufficient to support a conclusion that Bower failed to overcome the
presumption that the decision not to file the motion under I.C.R. 8 was within the wide range of
permissible discretion and trial strategy.      Additionally, Bower has failed to overcome the
presumption or demonstrate that the district court’s factual findings are clearly erroneous.
Therefore, the district court did not err in denying Bower’s ineffective assistance of counsel
claim for failing to file an I.C.R. 8 motion.
       3.      Duplicity
       Finally, on appeal, Bower stated that his trial counsel was ineffective for failing to object
to the duplicity contained in Counts I and III. However, Bower did not provide any further
argument or authority in support of his assertion. A party waives an issue on appeal if either
authority or argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996).
Thus, we decline to address Bower’s duplicity argument.
                                                 III.
                                          CONCLUSION
       We decline Bower’s invitation to overturn Grove or case law supporting Grove’s holding,
as Bower has failed to show that this Court and the Idaho Supreme Court’s interpretation of I.C.
§ 19-4901 was manifestly wrong or that time has proven it unjust or unwise. In addition, Bower


                                                  8
failed to show that his trial counsel was ineffective for failing to retain expert witnesses, failing
to file a motion to sever under I.C.R. 8, or failing to object to duplicity. Accordingly, the district
court’s judgment dismissing Bower’s petition for post-conviction relief is affirmed.
       Judge BRAILSFORD and Judge Pro Tem WALTERS CONCUR.




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