               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38390

STATE OF IDAHO,                                  )      2012 Unpublished Opinion No. 495
                                                 )
       Plaintiff-Respondent,                     )      Filed: May 29, 2012
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
JOHN HENRY RIVERA,                               )      THIS IS AN UNPUBLISHED
                                                 )      OPINION AND SHALL NOT
       Defendant-Appellant.                      )      BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. John P. Luster, District Judge.

       Judgment of conviction for grand theft, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Judge
       John Henry Rivera appeals from his judgment of conviction for grand theft entered upon
a jury verdict. Specifically, Rivera asserts the district court erred in denying his motion for
mistrial, made on the basis of the improper opening statement by the prosecutor. Further, Rivera
asserts his right to a fair trial was violated when the prosecutor committed misconduct in closing
argument. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       In October 2009, the State charged Rivera with one count of grand theft for taking
financial transaction cards owned by a coworker. The coworker’s wallet, containing the cards,
had gone missing some three months prior. During an interview with investigators, Rivera
admitted to taking the wallet during the previous summer and hiding it in the ceiling of the men’s
restroom located within the building where he and the victim worked. Rivera explained he did

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so because of his dislike for the owner of the wallet, but Rivera denied ever opening the wallet or
removing any of its contents. Shortly after hiding the wallet, Rivera ceased working as an
employee in that location. After Rivera’s admission, the wallet was recovered from the wall of
the men’s restroom at Rivera’s former place of employment, having fallen from its position in
the ceiling. The wallet, after it was recovered, still contained all of the financial transaction
cards reported to have been inside. 1
       Rivera pled not guilty to the grand theft charge and exercised his right to a trial. During
the State’s opening statement, the prosecutor referenced Rivera’s bad temperament and habits as
an employee. Defense counsel objected, asserting the statement was irrelevant, and then moved
for a mistrial. Defense counsel further argued, in support of the motion for mistrial, that the
statement was impermissible character evidence, was prejudicial, and deprived Rivera of a fair
trial. The State responded that it offered the statement because it intended to present evidence
that Rivera’s poor working habits were the source of the acrimonious relationship between the
victim and Rivera and may establish motive or intent to commit the crime. The State also argued
that opening statements are not to be taken as evidence by the jury and that any arguable
prejudicial effect could be cured with a jury instruction. The district court denied the motion,
unable to conclude at that early stage in trial that Rivera would be unable to receive a fair trial.
       During trial, the prosecutor did not introduce evidence of Rivera’s work habits or
temperament. There was an inadvertent reference to Rivera’s termination and that Rivera just
stopped showing up to work within days of the wallet going missing. However, the district court
sustained defense counsel’s objection and no further references were made. Rather than looking
to the poor relationship between the victim and Rivera to establish intent, in closing argument,
the prosecutor stated he could think of no better place to put a wallet than in the wall of a men’s
restroom in order to hide it permanently. As intent to permanently deprive another of property
was a materially disputed element of the charge, defense counsel again objected. Defense
counsel argued the statement was the personal opinion of the prosecutor and the prosecutor was
assuring a conclusion the evidence may or may not have established. The district court overruled
the objection. The prosecutor, thereafter, made another statement of similar effect. At the close
of trial, the jury found Rivera guilty of grand theft, Idaho Code §§ 18-2403, 18-2407(1)(b). The

1
       The only missing item was the cash that had been in the wallet.

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district court entered a judgment of conviction and imposed a unified sentence of four years, with
one and one-half years determinate, which it suspended pending completion of two years
probation. Rivera timely appeals, asserting the motion for mistrial should have been granted and
that the prosecutor’s closing argument deprived Rivera of a fair trial.
                                                 II.
                                           DISCUSSION
A.     Motion for a Mistrial
       Rivera argues the district court erred in denying his motion for a mistrial because the
State’s opening statement, when viewed in the context of the entire trial, prejudiced Rivera by
improperly describing and referring to Rivera’s character traits. Particularly, Rivera notes the
first witness again referred to Rivera’s character as an employee and because there were only
four witnesses, the prejudicial effect of the opening statement coupled with the reference by the
first witness was enough to deny him a fair trial. He further asserts the reference in the State’s
opening statement was inadmissible evidence under Idaho Rule of Evidence 404(b) and was
introduced without notice. The State responds that the prosecutor did not introduce any error by
referencing Rivera’s employment habits because he had reasonable grounds to believe the
evidence would be admissible at trial. Therefore, the State argues, Rivera has shown no basis
upon which the district court should have granted a mistrial.
       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.


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State v. Urquhart, 105 Idaho 92, 95, 665 P.2d 1102, 1105 (Ct. App. 1983); accord State v.
Norton, 151 Idaho 176, 192-93, 254 P.3d 77, 93-94 (Ct. App. 2011). The error upon which a
defendant moved for mistrial will be deemed harmless if the appellate court is able to declare,
beyond a reasonable doubt, that there was no reasonable possibility that the event complained of
contributed to the conviction. Norton, 151 Idaho at 192-93, 254 P.3d at 93-94; State v. Morgan,
144 Idaho 861, 863-64, 172 P.3d 1136, 1138-39 (Ct. App. 2007).
       During the State’s opening statement, the prosecutor told the jury the evidence in the case
would show Rivera stole a wallet from his coworker’s purse and thereby committed grand theft.
In further explaining the case, the prosecutor made the following remarks:                “Through
[testimony], ladies and gentlemen of the jury, you are going to hear the truth of what
happened. . . . You are going to hear testimony today about his habits as an employee. He was
argumentative and unsatisfactory in his performance.” Defense counsel objected, asserting the
last statement was argumentative and irrelevant. After counsel for both parties approached the
bench and the jury was excused, the court took oral argument on a motion for mistrial made by
defense counsel. In support of the motion for mistrial, defense counsel explained:
       [W]hat we have here is in opening statement irrelevant, prejudicial character
       assassination in regard to my client.
               There is no need for the State in a case like this to state--to accuse,
       essentially, my client of being argumentative, unsatisfactory performance,
       anything like that. This is not a wrongful termination case. . . . This is a criminal
       case brought by the State of Idaho and is--Judge, those adjectives cannot--well,
       they constitute 404(b) evidence, Judge. This is uncharged misconduct without
       notice. This is character disparagement, sir. That’s a bell that cannot be unrung.
The State responded that defense counsel’s argument assumed the jury disregarded the judge’s
instruction to not consider opening statements as evidence in the case. The State further argued
the statement was not irrelevant because there would be evidence of the hostile and acrimonious
relationship between Rivera and the victim, which could give rise to a motive for taking the
wallet. Finally, the State asserted that if the opening statement could be construed as prejudicial,
it could be cured with further instruction to the jury.
       Without actually ruling on the possible admissibility of evidence regarding Rivera’s work
habits, the district court denied the motion for a mistrial, reasoning:
       [A]ssuming for the fact of this argument here that a reference by the State to Mr.
       Rivera as being argumentative and unsatisfactory in his performance as being an
       objectionable statement and inappropriate under a 404(b) standard, I have to look
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       and recognize that the State’s argument is just that. It is argument. It is not
       evidence that is to be offered or accepted by the jury. And while certainly that
       statement may have some arguable impact upon the jury that cannot be unrung, I
       don’t think at this particular stage of this process that the Court can come to the
       conclusion that Mr. Rivera is not capable of receiving a fair trial.
The court also noted that, prior to opening statements, the jurors had been instructed not to take
opening statements by the attorneys as evidence in the case, but cautioned the prosecutor to only
reference the work habits and personal behavior of Rivera to the extent it related to the alleged
charge in the case. Defense counsel asked for a further instruction to the jury, but then withdrew
the request.
       During the testimony of the first witness, the State again referenced Rivera’s work
history. In questioning the witness about Rivera, the prosecutor asked, “Now, when was the
defendant terminated from his job--or--I’m sorry.” Defense counsel objected and the court
sustained the objection, observing that the prosecutor was just about to rephrase the question.
Before the witness had the opportunity to answer, the court also sustained an objection to the
question, “How did [Rivera’s] employment end?” When the prosecutor asked the witness when
River’s employment ended, the witness answered, “On August the 4th, John [Rivera] didn’t
show up for work, so I asked [a coworker] if she knew where he was. She said he had gone
home Friday--.” Again, the court sustained an objection by defense counsel. Apart from the first
witness’s testimony, the State’s third witness, one of the investigating officers, gave other
testimony regarding Rivera at work or his attitude. The witness simply relayed that Rivera
admitted taking the wallet because “he was mad at the owner” and that Rivera believed “his
work environment was good, but he [Rivera] didn’t like [the victim], really, that she was bitchy
most of the time and had a cocky attitude.” 2 Defense counsel objected to this answer, but only
on the basis of the narrative form, not the content. The investigator did not mention termination,
poor work habits, or other behavior of Rivera.
       Consistent with the requirements in Idaho Criminal Rule 29.1, to prevail on a motion for
mistrial, Rivera must show, as a threshold, that the State introduced error in some manner and
that the error was prejudicial. State v. Grantham, 146 Idaho 490, 498, 198 P.3d 128, 136 (Ct.

2
        In addition to this testimony, the prosecutor showed the jury the investigator’s videoed
interview with Rivera, wherein Rivera made the remarks about the coworker and his dislike of
her.

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App. 2008).     The question is whether the event that precipitated the motion for mistrial
represented reversible error when viewed in the context of the full record, i.e., whether it
contributed to the verdict in light of all other evidence. State v. Barcella, 135 Idaho 191, 198, 16
P.3d 288, 295 (Ct. App. 2000). Here, that event is the comment in the State’s opening statement.
       We conclude the prosecutor did not introduce error through his comments in the opening
statement. Opening statements serve to inform the jury of the issues of the case and briefly
outline the evidence each litigant intends to introduce to support his allegations or defenses.
State v. Griffith, 97 Idaho 52, 56, 539 P.2d 604, 608 (1975); State v. Priest, 128 Idaho 6, 13, 909
P.2d 624, 631 (Ct. App. 1995). Counsel should be allowed latitude in his opening statement.
State v. Timmons, 145 Idaho 279, 287, 178 P.3d 644, 652 (Ct. App. 2007). Still, opening
remarks should generally be confined to a brief summary of evidence counsel expects to
introduce on behalf of his client’s case-in-chief. Griffith, 97 Idaho at 56, 539 P.2d at 608; Priest,
128 Idaho at 13, 909 P.2d at 631. Counsel should not reference evidence it would like to
introduce if “it is manifest that such proof would be incompetent, or the statement is made for the
purpose of creating prejudice.” Miller v. Braun, 411 P.2d 621, 622 (Kan. 1966); see also
Mattson v. Bryan, 92 Idaho 587, 592, 448 P.2d 201, 206 (1968) (adopting the standard set forth
in Miller). The court may limit the scope of opening statements in an exercise of its discretion.
Griffith, 97 Idaho at 56, 539 P.2d at 608. The Miller Court discussed the interplay between
counsel’s latitude in opening statements and a trial court’s discretion, and the reasoning has since
been adopted in Idaho:
       Counsel should be allowed considerable latitude in his opening statement and its
       general nature and character rests largely with the discretion of the district court,
       which must necessarily rely on the good faith of counsel properly to confine his
       remarks within the bounds of propriety and good faith. Since whatever counsel
       states in his opening statement as to what he expects to prove is subject to the
       further action of the court in permitting him to introduce testimony, it is not
       necessarily misconduct for him to claim something he does not later prove.
Miller, 411 P.2d at 622 (emphasis added); see also Mattson, 92 Idaho at 592, 448 P.2d at 206
(quoting Miller). Even where the intended proof is later excluded by the court, statements by
counsel that certain evidence will be introduced are not improper if made in good faith and with
reasonable ground to believe the evidence is admissible; however, without the presence of good
faith, or where prejudice is clearly produced, whether as the result of accident, inadvertence, or
misconception, the rule is to the contrary. Mattson, 92 Idaho at 592, 448 P.2d at 206.
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         Here, the prosecutor made the opening statement expecting to introduce evidence about
Rivera’s poor work habits or attitude to the show the source of the acrimonious relationship
between Rivera and a coworker, and establish a motive to commit theft of that coworker’s
wallet. Under Idaho Rule of Evidence 404(b), evidence of other acts may be admissible to show
motive and the district court recognized there may be an argument for the evidence’s admission:
         [T]here could be an argument that offering evidence about the argumentative
         nature or Mr. Rivera’s unsatisfactory work performance may or may not be
         relevant to this proceeding. I don’t know how that’s going to pan out. I do
         understand that there is some kind of acrimony that existed between the
         coworkers, between the defendant, and the alleged victim in this case. That may
         certainly be part of the whole picture of this case. . . . But certainly I don’t know
         that it’s necessary to go into that in any great detail, and I’m not sure how the
         Court will rule on that if that is evidence that [is] going to be offered.
We will not decide whether the evidence would have been admissible or whether Rule 404(b)
would have applied because there was no ruling in regards to those questions from the district
court. See State v. Pickens, 148 Idaho 554, 557, 224 P.3d 1143, 1146 (Ct. App. 2010) (declining
to rule on the admissibility of evidence, which was the subject of a motion for a mistrial, where
the judge did not clearly rule on admission or exclusion of the evidence). However, looking at
Rule 404(b), it was reasonable for the prosecution to believe the evidence he referenced in the
opening statement would have been admissible for the purpose of showing motive in the case
against Rivera. Furthermore, nothing establishes that the opening statement was made in bad
faith.   Rather, after defense counsel’s objection to the opening statement, the prosecution
refrained from putting on such evidence and used testimony only to establish that Rivera had a
poor attitude towards the victim coworker, but left out the source of that sentiment. Though the
comments in the opening statement may have briefly referenced the character of the defendant,
and the evidence may later have proved inadmissible if the State attempted to introduce it, we do
not find any misconduct or error on the part of the prosecutor. See Norton, 151 Idaho at 188, 254
P.3d at 89 (concluding the prosecutor did not commit misconduct where in the State’s opening
statement and closing argument he commented that the defendant was “caught by the lie” and
was motivated by “greed and revenge” to commit arson, and then further referenced evidence of
financial problems and a poor relationship with a soon-to-be-ex-husband to establish such a
motive).



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       Even if we were to assume, as the district court did for the sake of argument, that the
evidence of Rivera’s poor work habits and attitude would have been inadmissible and the
prosecutor’s reference was improper, Rivera fails to establish prejudice. First, the district court
instructed the jury, both before counsel’s opening statements were given and at the close of the
case, that opening statements were not to be taken as evidence. Where a jury is instructed, we
presume the jury followed the instructions given by the court. State v. Carson, 151 Idaho 713,
718, 264 P.3d 54, 59 (2011). Defense counsel declined to have the jury further instructed as to
the particular statements. Second, a reference to a poor work ethic or behavior as an employee is
not the type of prejudicial and harmful reference that establishes a propensity to steal. Rivera
does not explain how a brief reference to Rivera as an argumentative and unsatisfactory
employee may have influenced the jury in such a way as to be more likely to believe that Rivera
would steal a wallet. Finally, the State had evidence establishing when the wallet went missing,
Rivera’s behavior after the victim realized her wallet was missing where he “helped” look for it,
that Rivera’s employment ended just a few days after the wallet went missing, Rivera’s later
admission to taking the wallet, Rivera’s dislike of the victim as the impetus for taking the wallet,
and the location from where the wallet was recovered based on Rivera’s disclosure. In light of
the whole record, we cannot find that the reference in the opening statement to Rivera’s work
habits or behavior contributed to the verdict.
B.     Prosecutorial Misconduct
       Rivera argues the prosecutor inserted personal opinion in closing argument in regards to
the only materially disputed facts and, thereby, could have influenced the jury’s verdict,
requiring Rivera’s conviction to be vacated. The State asserts the prosecutor was explaining how
the evidence--that the wallet was hidden in the wall of the men’s restroom--supported the
inference that Rivera had intended to permanently deprive the coworker of the wallet.
       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). 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. Id.; State v. Hodges, 105 Idaho 588, 592, 671 P.2d 1051, 1055
                                                 8
(1983); State v. Phillips, 144 Idaho 82, 88, 156 P.3d 583, 589 (Ct. App. 2007). 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). Where the defendant has met his or her burden of showing prosecutorial misconduct, the
test for harmless error is whether the State can demonstrate to the appellate court beyond a
reasonable doubt that the error did not contribute to the jury’s verdict. State v. Perry, 150 Idaho
209, 227, 245 P.3d 961, 979 (2010).
       Closing argument serves to sharpen and clarify the issues for resolution by the trier of
fact in a criminal case. Phillips, 144 Idaho at 86, 156 P.3d at 587. Its purpose is to help the
jurors remember and interpret the evidence. State v. Reynolds¸ 120 Idaho 445, 450, 816 P.2d
1002, 1007 (Ct. App. 1991).       Although the prosecuting attorney may not misrepresent or
mischaracterize the evidence, State v. Raudebaugh, 124 Idaho 758, 769, 864 P.2d 596, 607
(1993), both sides are afforded considerable latitude in closing argument and are entitled to
discuss fully, from their respective standpoints, the evidence and inferences to be drawn
therefrom. State v. Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969 (2003). However, closing
argument should not include counsel’s personal opinions and beliefs about the credibility of a
witness or the guilt of the accused. Idaho Rule of Professional Conduct 3.4; see also Carson,
151 Idaho at 721, 264 P.3d at 62. A prosecuting attorney may express an opinion as to the truth
or falsity of testimony or the guilt of the defendant only when such opinion is based upon the
evidence, and in doing so, the prosecuting attorney should explicitly state that the opinion is
based solely on inferences from the evidence presented at trial. State v. Pizzuto, 119 Idaho 742,
753 n.1, 810 P.2d 680, 691 n.1 (1991), overruled on other grounds by State v. Card, 121 Idaho
425, 432, 825 P.2d 1081, 1088 (1991); Phillips, 144 Idaho at 86 n.1, 156 P.3d at 587 n.1.
Phrases such as “I think” and “I believe” are discouraged. State v. Rosencrantz, 110 Idaho 124,
131, 714 P.2d 93, 100 (Ct. App. 1986).
       During closing argument in this case, the prosecuting attorney discussed each element of
grand theft, and began on the issue of intent by saying, “Now, the fifth element is that the
defendant took, obtained, or withheld the property with the intent to deprive the owner of that
property. We know he did this in three ways.” Then, the prosecutor went over the evidence that:
(1) Rivera took the wallet and put it in the ceiling of the men’s restroom; (2) Rivera helped look
for the wallet knowing full well where it was and then ceased working at that location a few days
                                                9
later without letting anyone know where the wallet was; and, (3) Rivera admitted he disliked the
owner of the wallet. When reviewing where Rivera put the wallet, the prosecutor said, “Now,
you heard testimony that they actually found [the wallet] in the wall. I can think of no better
place to put that wallet in that building to hide it permanently.” Defense counsel objected,
arguing it was a personal opinion, vouching for Rivera’s intent. The district court overruled the
objection. The prosecutor went on to again state, “If you wanted to permanently deprive, there’s
no better place to put [the wallet] than in that wall.”
       We conclude the prosecutor did not commit misconduct. The prosecutor’s statements in
closing argument simply commented on an inference to be made from the evidence. This is not a
case where the prosecutor comments on the credibility of a witness, disparages opposing
counsel, or appeals to the emotions, passion, or prejudice of the jury. The comment also did not
display an opinion as to the guilt of the accused, but rather whether the State had proven Rivera
had the intent to permanently deprive the owner of the wallet. This is evident in looking at the
context of those statements.       Although we discourage the use of “I think” phrases, the
prosecutor’s statement went no further than what the evidence presented in the case might
support. Accordingly, we conclude Rivera was not deprived of a fair trial.
                                                 III.
                                          CONCLUSION
       Rivera fails to establish that the prosecutor introduced error or prejudiced him by the
reference in the opening statement.       Additionally, we hold the prosecutor did not commit
misconduct in closing argument when speaking to the element of intent. Therefore, we affirm
Rivera’s judgment of conviction for grand theft.
       Chief Judge GRATTON, CONCURS.
       Judge LANSING, CONCURS IN THE RESULT.




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