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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38009

STATE OF IDAHO,

Plaintiff-Respondent,

v.

DWAIN K. WHITAKER,

Defendant-Appellant.

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2012 Opinion No. 5

Filed: January 24, 2012

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin 

Falls County. Hon. Randy J. Stoker, District Judge. 

Judgment of conviction for lewd conduct and sexual abuse of a child, affirmed.

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

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

LANSING, Judge

Dwain K. Whitaker appeals from his judgment of conviction on eleven counts of lewd 

conduct with a minor child under sixteen, Idaho Code § 18-1508, and three counts of sexual 

abuse of a child under the age of sixteen, I.C. § 18-1506. Whitaker asserts the district court erred 

in overruling his objection to evidence that he viewed pornography on his computer and that the 

prosecutor committed misconduct in closing arguments. 

I.

BACKGROUND

Whitaker was indicted on thirteen counts of lewd conduct with a minor and four counts 

of sexual abuse for inappropriate sexual contact with his two stepdaughters between 2007 and 

2009. The lewd conduct charges included allegations of genital-to-genital contact and manualto-genital contact. At the time of trial in 2010, Victim 1 was fifteen years old, and Victim 2 was 

fourteen. Victim 1 testified that Whitaker showed her pornography, touched her inappropriately, 
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and forced her to touch him. Victim 2 testified that Whitaker had shown her pornography, 

forced her to touch him, and had sexual intercourse with her. A jury found Whitaker guilty of 

eleven counts of lewd conduct, and three counts of sexual abuse. Whitaker appeals, contending 

that the trial court erroneously admitted evidence and that the prosecutor engaged in misconduct 

during closing argument.

II.

ANALYSIS

A. The Trial Court Erred in Admitting I.R.E. 404(b) Evidence

At trial, Whitaker’s wife testified that at some point from 2007 to 2009, she had seen 

Whitaker view pornography on his computer. Defense counsel objected on various grounds,

including that this was “other act” evidence of character and propensity made inadmissible by 

Idaho Rule of Evidence 404(b) and that the State had provided no pretrial notice of its intent to 

use such evidence as required by that rule. The district court overruled the objections, 

concluding that the testimony was not subject to Rule 404(b) because it was not unlawful for 

Whitaker to possess or view adult pornography. 

The evidence rule in question, I.R.E. 404(b), provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show that the person acted in conformity 

therewith. It may, however, be admissible for other purposes, such as proof of 

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident, provided that the prosecution in a criminal case shall file and 

serve notice reasonably in advance of trial, or during trial if the court excuses 

pretrial notice on good cause shown, of the general nature of any such evidence it 

intends to introduce at trial.

This rule prohibits introduction of evidence of acts other than the crime for which a defendant is 

charged if its probative value is “entirely dependent upon its tendency to demonstrate the 

defendant’s propensity to engage in such behavior.” State v. Grist, 147 Idaho 49, 54, 205 P.3d 

1185, 1190 (2009). See also State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct. App. 

2002). Of course, evidence of a prior crime, wrong, or act may implicate a person’s character

while also being relevant and admissible for some permissible purpose, such as those listed in the 

rule. 

When determining the admissibility of evidence to which a Rule 404(b) objection has 

been made, the trial court must first determine whether there is sufficient evidence of the prior 
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acts that a reasonable jury could believe the conduct actually occurred. If so, then the court must 

consider: (1) whether the prior acts are relevant to a material disputed issue concerning the 

crime charged, other than propensity; and (2) whether the probative value is substantially 

outweighed by the danger of unfair prejudice. Grist, 147 Idaho at 52, 205 P.3d at 1188; State v. 

Parmer, 147 Idaho 210, 214, 207 P.3d 186, 190 (Ct. App. 2009). On appeal, this Court defers to 

the trial court’s determination that there is sufficient evidence of the prior misconduct if it is 

supported by substantial and competent evidence in the record. Parmer, 147 Idaho at 214, 207 

P.3d at 190. We exercise free review, however, of the trial court’s relevancy determination.

State v. Sheldon, 145 Idaho 225, 229, 178 P.3d 28, 32 (2008); State v. Scovell, 136 Idaho 587, 

590, 38 P.3d 625, 628 (Ct. App. 2001). The trial court’s balancing of the probative value of the 

evidence against the danger of unfair prejudice will not be disturbed unless we find an abuse of 

discretion. Grist, 147 Idaho at 52, 205 P.3d at 1188; Scovell, 136 Idaho at 590, 38 P.3d at 628.

Here, the district court held that the Rule 404(b) constraints did not apply to the

challenged testimony of Whitaker’s wife because viewing pornography is not a criminal offense. 

That is, the district court interpreted Rule 404(b) as applying only to evidence of other criminal 

behavior. In this the court erred for the rule, by its literal terms, applies to not only “other 

crimes,” but also other “wrongs or acts.” Although Rule 404(b) has its genesis in the common 

law rule that “the doing of a criminal act, not part of the issue, is not admissible as evidence of 

the doing of the criminal act charged,” Grist, 147 Idaho at 52, 205 P.3d at 1188 (citing 

WIGMORE, CODE OF EVIDENCE 81 (3d ed.)), the rule expands this evidentiary bar beyond 

evidence of other crimes. The inclusion of the words “wrongs or acts” prohibits evidence of 

conduct beyond criminal offenses if it is proffered for the purpose of showing a person’s 

character and conforming behavior. 

Under a narrow interpretation, the term “wrong” may refer to a civil wrong, which is 

defined as: “A violation of noncriminal law, such as a tort, a breach of contract or trust, a breach 

of statutory duty, or a defect in performing a public duty.” BLACK’S LAW DICTIONARY 1643 (8th 

ed. 2004) (under “wrong”). Commentators have suggested that the exclusion of the word “civil” 

from the rule may indicate that the drafters of the rule intended the word “wrongs” to broadly 

include “any sort of conduct that is likely to reflect adversely on the person in the eyes of the 

jury even though it has not been forbidden by the positive law.” 22 CHARLES ALAN WRIGHT &
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KENNETH W. GRAHAM, JR, FEDERAL PRACTICE & PROCEDURE: EVIDENCE § 5239, p. 456 (1978). 

The word “acts” as used in Rule 404(b) is also subject to multiple interpretations:

First, it can be argued that the phrase “other acts” is intended to cover the same 

ground as the expression “specific instances of conduct” in Rule 405(b). Under 

this interpretation, “other acts” would include any conduct, good or bad, that 

tended to show the character of the person involved. A second possibility is to 

read “other acts” in the light of the other two categories in Rule 404(b); that is, 

other acts are excluded only if they resemble “crimes” or “wrongs.” . . . On this 

theory, the intent of the Advisory Committee was to reinstate the ancient common 

law rule permitting the use of evidence of good acts. Finally, it can be argued that 

“other acts” was intended to be broader than the phrase “specific instances of 

conduct” in Rule 405(b), perhaps in the belief that the language of Rule 405 did 

not encompass such acts as speaking.

Id. at 456-57 (footnotes omitted). 

Although Idaho appellate courts have commonly used the terms “prior bad acts evidence” 

or “other bad acts evidence” as shorthand to refer to evidence governed by Rule 404(b), we have 

noted that the rule is not limited to “bad” acts.1

 State v. Norton, 151 Idaho 176, 190, 254 P.3d 

77, 91 (Ct. App. 2011). We have also held, however, that if the evidence does not bear upon the 

defendant’s character, it is not subject to I.R.E. 404(b).2 Id. In Norton, the defendant was on 

trial for arson and sought exclusion of evidence that she had previously experienced a house fire 

and collected insurance. We held that evidence that Norton’s house had burned and that she 

received insurance, without any evidence that the fire was caused by arson, did not implicate her 

character; and therefore was not excluded by Rule 404(b). Id. at 190, 254 P.3d at 91.

In the present case, the State concedes on appeal that evidence of Whitaker’s 

pornography viewing could have been perceived by a jury as reflecting negatively on his 

character. We agree. This evidence, while not evincing criminality, could be used to 

demonstrate poor character.

The State, citing Sheldon, 145 Idaho at 228, 178 P.3d at 31, contends that admission of 

the evidence was nevertheless proper because I.R.E. 404(b) “does not extend to evidence of acts 

which are intrinsic to the charged offense.” According to the State, the evidence that Whitaker 

 

1 Nor does anything in the rule limit its applicability to “prior” acts.

2 In acting upon Whitaker’s objection to this evidence, the district court did not have the 

benefit of our decision in Norton, which was issued after Whitaker’s trial.
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viewed pornography was intrinsic to the allegations that he showed pornography to the victims. 

This contention is without merit. “Evidence of an act is intrinsic when it and evidence of the 

crime charged are inextricably intertwined, or both acts are part of a single criminal episode, or it 

was a necessary preliminary to the crime charged.” Sheldon, 145 Idaho at 228, 178 P.3d at 31 

(quoting United States v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007). Evidence is inextricably 

intertwined when it is “so interconnected with the charged offense that a complete account of the 

charged offense could not be given to the jury without disclosure of the uncharged misconduct.” 

Avila, 137 Idaho at 413, 49 P.3d at 1263. See also State v. Izatt, 96 Idaho 667, 670, 534 P.2d 

1107, 1110 (1975); State v. Blackstead, 126 Idaho 14, 17-18, 878 P.2d 188, 191-92 (Ct. App. 

1994). Whitaker’s viewing pornography on some occasion entirely separate from the charged 

offenses was not part of the charged criminal episode, nor was it necessary in order to provide a 

complete account of the charged crimes. Because the evidence implicated Whitaker’s character 

and was not intrinsic to the crimes charged, it is subject to the strictures of Rule 404(b).

Such evidence may be admitted for a permissible purpose in a criminal case only if the 

prosecution has “file[d] and serve[d] notice reasonably in advance of trial, or during trial if the 

court excuses pretrial notice on good cause shown, of the general nature of any such evidence it 

intends to introduce at trial.” I.R.E. 404(b). This notice requirement is mandatory, and the 

failure to comply creates a bar to admissibility. Sheldon, 145 Idaho at 230, 178 P.3d at 33.

The State asserts that lack of formal notice should be excused here because Whitaker was 

on notice that the State would introduce evidence that Whitaker had pornography “on his 

computer” through allegations in the information, the victim’s preliminary hearing testimony, 

and “likely the discovery materials.” However, the charging allegations and preliminary hearing 

testimony referred to the charged criminal acts, not the “other” acts to which objection was made 

at trial, and we will not speculate about the content of discovery responses that are not in the 

record. The State here did not “file and serve notice or show good cause for the court to excuse 

this requirement.” I.R.E. 404(b). Consequently, the evidence was inadmissible. 

Because we conclude that the evidence was inadmissible for lack of notice under 

Rule 404(b), we do not reach the issues of its relevance for a permissible purpose or the 

balancing of probative value against unfair prejudice.
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B. Prosecutorial Misconduct Occurred

Whitaker next asserts that his trial was infected with fundamental error when the 

prosecutor, during the rebuttal closing argument, made veiled references to Whitaker’s choice to 

not testify at trial. The prosecutor’s comments were as follows:

It’s important to note that [defense counsel] was not able to impeach 

[Victim 2] about anything she said about Dwain Whitaker. He may not agree 

with her, but that’s not impeachment. The evidence is uncontroverted that Dwain 

Whitaker put his naked penis in [Victim 2]’s vagina. Now [Victim 2] was in her 

room. She was in his room. She was in the bathroom. She was in the motor 

home on Quincy. She was in the motor home on Monroe. I asked you at the very 

beginning, listen to how the defense explains away the allegations. I asked you, 

how do you explain that away?

There is no history in the prior medical history of [Victim 2] that there was 

any kind of trauma, that she had been injured in any way in her vaginal area. 

There is uncontroverted evidence that Dwain Whitaker showed her pornography 

in the basement TV room, as well as in the front room. . . .

It’s uncontroverted that Dwain Whitaker had sexual contact with 

[Victim 1]. [Victim 1]’s testimony is that he touched her with his bare penis at 

night because, you remember, she was asleep. . . .

There is no controverted evidence that this did not happen in her bedroom 

or that it happened in his room. The evidence is uncontroverted that she was 

shown pornography in the bathroom. One of those times when he was showing 

her pornography, do you remember what he did? He began to masturbate until he 

ejaculated. The evidence is uncontroverted that he had [Victim 1] touch his penis 

and that when she would do that he would move her hand up and down, that he 

would ejaculate. [Victim 1] was not inconsistent in her testimony either. She 

didn’t change her testimony in any way.

(emphasis added). 

Whitaker argues that the prosecutor’s repeated reference to the victims’ testimony as 

“uncontroverted” constituted a comment on his exercise of his Fifth Amendment right not to 

testify. Although Whitaker made no objection at trial to the prosecutor’s statements, he contends 

that this claimed violation of his constitutional right not to testify should be reviewed on appeal 

as fundamental error. 

The Idaho Supreme Court has recently stated that to obtain relief on appeal for 

fundamental error:

(1) the defendant must demonstrate that one or more of the defendant’s 

unwaived constitutional rights were violated; (2) the error must be clear or 

obvious, without the need for any additional information not contained in the 

appellate record, including information as to whether the failure to object was a 
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tactical decision; and (3) the defendant must demonstrate that the error affected 

the defendant’s substantial rights, meaning (in most instances) that it must have 

affected the outcome of the trial proceedings.

State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010) (footnote omitted). If the alleged 

error satisfies the first two elements of the Perry test, the error is reviewable. Id. To obtain 

appellate relief, however, the defendant must further persuade the reviewing court that the error 

was not harmless; i.e., that there is a reasonable possibility that the error affected the outcome of 

the trial and thereby prejudiced the defendant. 

Whitaker maintains that the first prong of the Perry test is satisfied here because the 

prosecutor’s comments violated the Fifth Amendment guarantee that “[n]o person . . . shall be 

compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. This 

constitutional safeguard forbids prosecutorial comments to the jury on a defendant’s failure to 

testify at trial. Griffin v. California, 380 U.S. 609, 615 (1965). It encompasses both direct and 

indirect references to the choice not to testify. State v. Hodges, 105 Idaho 388, 392, 671 P.2d 

1051, 1055 (1983); State v. McMurry, 143 Idaho 312, 314, 143 P.3d 400, 402 (Ct. App. 2006). 

However, we will 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.” State v. Severson, 147 Idaho 694, 

719, 215 P.3d 414, 439 (2009) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974)). 

Rather, we examine “whether the language used was manifestly intended or was of such 

character that the jury would naturally and necessarily take it to be a comment on the failure of 

the accused to testify. McMurry, 143 Idaho at 315, 143 P.3d at 403 (quoting State v. Wright, 97 

Idaho 229, 232, 542 P.3d 63, 66 (1975)).

A prosecutor’s general references to uncontradicted evidence do not necessarily refer to 

the absence of testimony from the defendant if witnesses other than the defendant could have 

contradicted the evidence. McMurry, 143 Idaho at 314, 143 P.3d at 402. Thus, in Hodges, our 

Supreme Court held that the defendant’s privilege against self-incrimination was not violated 

when the prosecutor commented on an expert’s “uncontradicted” testimony that a substance was 

cocaine because the defendant was not the only logical witness who could have disputed the 

expert’s testimony. Hodges, 105 Idaho at 591-92, 671 P.2d at 1054-55. However, a prosecutor’s 

use of words implying a requirement of a personal response by the accused may reflect upon the 

defendant’s failure to take the stand and deny guilt. McMurry, 143 Idaho at 315, 143 P.3d at 
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403. In McMurry, we held that the defendant’s Fifth Amendment privilege was violated by the 

prosecutor’s comments on the absence of any evidence contradicting the victim’s testimony 

about actions that allegedly occurred when only the victim and the defendant were present. Id. 

In this case, the prosecutor asked the jury to consider that the victims’ testimony was 

“uncontroverted” concerning events that occurred when only Whitaker and one of the girls were 

present. Thus, the prosecutor’s comments implicated Whitaker’s Fifth Amendment privilege.

The number of the prosecutor’s allusions to the absence of testimony from the defendant 

is significant in ascertaining whether there has been a Griffin violation. As the Sixth Circuit 

Court of Appeals said in Raper v. Mintzes, 706 F.2d 161, 167 n.5 (6th Cir. 1983), “We do not 

suggest that any magic number will constitute a violation of Griffin but the number of comments, 

along with their nature, is a key factor.” In McMurry, we found a Griffin violation where the 

prosecutor made at least four indirect comments upon the defendant’s failure to testify or provide 

an explanation to the police who investigated the charged offense. McMurry, 143 Idaho at 315-

16, 143 P.3d at 403-04. In Whitaker’s trial, the prosecutor’s rebuttal closing argument used the 

term “uncontroverted” or a similar phrase six times when referring to testimony that only 

Whitaker could have contradicted.

Contrary to the State’s contentions, the context in which these comments were made does

not justify nor ameliorate the impermissible allusion to Whitaker’s failure to deny guilt on the 

witness stand. The State’s assertion that the prosecutor’s comments were merely rebuttals to 

defense counsel’s argument that the victims’ testimony was internally inconsistent and lacking in 

credibility is not borne out by the content of the prosecutor’s statements. The challenged portion 

of the prosecutor’s argument was not disputing alleged inconsistencies nor drawing the jury’s 

attention to consistencies within the victims’ testimony; it was referring to the absence of any 

controverting testimony, which could have been given only by Whitaker. We therefore conclude 

that Whitaker has satisfied his burden to show that the prosecutor’s argument violated an 

unwaived constitutional right and that the error is clear or obvious, thereby meeting the first two 

prongs of the Perry test for reversible fundamental error. It remains for us to determine whether 

the error affected the outcome of the trial.

C. The Trial Errors Were Harmless 

Whitaker has demonstrated a preserved error from the admission of evidence in violation 

of I.R.E. 404(b) and a reviewable instance of prosecutorial misconduct to which no objection 
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was made in the trial court. Error is not reversible, however, unless it is prejudicial. State v. 

Stoddard, 105 Idaho 169, 171, 667 P.2d 272, 274 (Ct. App. 1983). With limited exceptions, 

even constitutional error may be harmless. Id. Under the doctrine of cumulative error, a series 

of errors, harmless in and of themselves, may in the aggregate show the absence of a fair trial. 

Perry, 150 Idaho at 230, 245 P.3d at 982; State v. Martinez, 125 Idaho 445, 453, 872 P.2d 708, 

716 (1994). We are cognizant of the differing burdens of persuasion for preserved and 

unpreserved error. If a defendant has established that an objected-to error occurred, the State has 

the burden of demonstrating that the error is harmless beyond a reasonable doubt.3 Perry, 150 

Idaho at 222, 245 P.3d at 974. However, where a defendant seeks relief for a constitutional 

violation to which no objection was made in the trial court, the defendant bears the burden of 

showing a reasonable possibility that the error affected the outcome of the trial. Id. at 226, 245 

P.3d at 978. 

Whether trial errors could have affected the outcome of a trial generally depends, in part, 

upon the strength of the properly admitted evidence of guilt. In this case, the evidence of 

Whitaker’s guilt came from the testimony of the two victims and a medical expert. Victim 1 said 

that Whitaker touched her chest and vagina with his hands or his penis, and made her touch his 

penis. She described various specific instances of touching occurring in the bathroom, her 

bedroom, her parent’s bedroom, or Whitaker’s nearby motor home. She said that on two 

occasions, Whitaker showed her pornography and masturbated in her presence. Victim 2 

testified that Whitaker had intercourse with her more than twenty times beginning when she was 

in the third or fourth grade. She described instances of intercourse occurring in her bedroom, her 

closet, her mother’s bedroom, the bathroom, and Whitaker’s motor home. She indicated that 

 

3 In Sheldon, the Supreme Court stated that where the admission of I.R.E. 404(b) evidence 

was erroneous due to lack of the requisite notice, the harmless error inquiry is whether prejudice 

was caused by the content of the evidence rather than by the lack of notice. However, the Court 

apparently continued to consider the harm from lack of notice, stating that appellate counsel 

“listed a number of things that the defense would have done differently, had it been known that 

the statements were to be offered in evidence.” Sheldon, 145 Idaho at 231, 178 P.3d at 34. Here, 

defense counsel has not identified anything that would have been done differently if the defense 

had received notice of the State’s intent to use the Rule 404(b) evidence. Nevertheless, we heed 

the Sheldon decision’s holding that prejudice is to be gauged from the content of the evidence.
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Whitaker also placed her hand on his penis on various occasions. Victim 2 also testified that 

Whitaker showed her pornography more than twenty times. 

The victims provided partial corroboration of one another’s allegations, and a medical 

expert also provided corroboration. Victim 1 testified that she witnessed Whitaker acting 

suspicious in the closet with Victim 2. Victim 2 testified that she “caught” Whitaker and 

Victim 1 on one occasion when she opened the door to her bedroom to find Whitaker kneeling 

next to Victim 1 on the bed. She said that Whitaker looked surprised to see her and opened his 

robe to block her view. Both victims were examined by a certified pediatric nurse. Consistent 

with Victim 2’s allegations of intercourse, the nurse testified that Victim 2 had an internal scar 

from injury that could only have been caused by vaginal penetration. She also noted that both 

girls tested positive for gardnerella, a vaginal bacteria which, she explained, is more common in 

sexually active teens. Although the nurse acknowledged that gardnerella may be present without 

a history of sexual activity, she said that “having both girls have it, it kind of collaborates [sic] 

their story because these exams were done independently. . . . And in sexually active girls we do 

see [g]ardnerella, so it is a collaborating [sic] piece of evidence.” In comparison to this

compelling evidence of guilt, the improperly admitted testimony of Whitaker’s wife concerning 

his viewing of pornography was brief and cursory. 

Whitaker’s defense strategy consisted of attempting to discredit the victims’ testimony 

through argument of counsel, but without any evidence of a motive or explanation for why they

would falsely accuse Whitaker. Defense counsel suggested the girls’ demeanor was indicative of 

untruthfulness, and that their testimony was unclear on minor details and did not “make sense” 

because the victims alleged acts by Whitaker that carried a very high risk of getting caught. 

Notably, however, defense counsel was not able to point to any direct contradictions in the 

testimony. Defense counsel also speculated about reasons why the girls may have made up 

allegations of abuse, such as retaliation for discipline or attention seeking, but without supporting 

evidence; and to explain the medical testimony, counsel speculated that the girls may have been 

sexually active with other males. 

After a review of all the evidence and arguments, we are convinced beyond a reasonable 

doubt that the cumulative effect of the improperly admitted evidence and the prosecutor’s 

impermissible comments did not contribute to the jury’s verdict. The errors are harmless, 

whether viewed independently or cumulatively.
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III.

CONCLUSION

The district court erred by admitting testimony that Whitaker viewed pornography on 

occasions other than the charged offenses as the State had not given notice of its intent to use 

such evidence, and the prosecutor’s repeated comments that testimony from the victims was 

uncontroverted violated Whitaker’s Fifth Amendment right not to testify. However, these errors 

were harmless beyond a reasonable doubt. Therefore, the judgment of conviction is affirmed.

Judge GUTIERREZ and Judge MELANSON CONCUR.