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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 45743

STATE OF IDAHO,

 Plaintiff-Respondent,

v.

JEFFREY LYNN ALWIN,

 Defendant-Appellant.

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Boise, August 2018 Term

Filed: September 21, 2018

Karel A. Lehrman, Clerk

Appeal from the District Court of the First Judicial District of the State of Idaho, 

Kootenai County. Hon. Cynthia K.C. Meyer, District Judge.

District court order denying motion for new trial, affirmed.

Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Sally J. 

Cooley, Deputy Appellant Public Defender argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Mark 

W. Olson, Deputy Attorney General argued.

_____________________

BURDICK, Chief Justice.

Jeffrey Lynn Alwin appealed his judgment of conviction entered in the Kootenai County 

district court. A jury found Alwin guilty of felony eluding a peace officer. Alwin moved for a 

new trial, challenging the district court’s admission of a booking photograph at trial. Alwin 

argued the booking photograph was evidence of prior criminal conduct in violation of Idaho Rule 

of Evidence (“I.R.E.”) 404(b). The district court denied his motion. Alwin timely appealed and 

contended the district court abused its discretion in denying his motion for a new trial because 

the district court erroneously admitted I.R.E. 404(b) evidence over his objection when it admitted 

the booking photograph at trial. Alwin also argued the State committed prosecutorial misconduct 

during closing arguments. The Court of Appeals reversed, and the State filed a timely Petition 

for Review. For reasons discussed below, we affirm the district court’s judgment. 

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 3, 2015, Officer Cody Cohen of the Coeur d’Alene Police Department was 

clearing a traffic stop when he observed a black Mercedes-Benz drive past that was rapidly 
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accelerating. Officer Cohen returned to his patrol vehicle and followed the Mercedes. Officer 

Cohen then initiated a traffic stop. The Mercedes pulled over and Officer Cohen approached the 

driver’s window that was rolled about half-way down. Through this opening, Officer Cohen 

observed the sole occupant of the vehicle. He described the occupant as a white male with brown 

hair, about six feet in height with a muscular build. Officer Cohen also detected the odor of 

alcohol and that the male was avoiding eye contact. When Officer Cohen requested the male’s 

driver’s license, registration, and insurance information, the male responded with a slurred, 

incoherent response. At that time, the male reached across the vehicle to the glove box, returned 

his hand from the glove box empty, placed his hand on the shifter, and drove away. A multiofficer pursuit ensued but was ultimately disengaged. 

Officer Cohen called and provided the license plate number to dispatch approximately 

fifteen minutes after the vehicle fled the initial traffic stop. It was then discovered the vehicle 

was registered to Jeffery Lynn Alwin. At that time, Officer Cohen pulled a photograph of Alwin 

from the computer system. Officer Cohen confirmed the photograph of Alwin matched the male 

he had stopped earlier. Based on this information, a warrant was issued for Alwin’s arrest. Alwin 

voluntarily turned himself in. 

The main issue at trial revolved around Officer Cohen’s identification of Alwin. In 

support of Officer Cohen’s testimony, the State offered as evidence the photo Officer Cohen 

viewed the night of the traffic stop. Alwin objected under I.R.E. 404(b). No further explanation 

accompanied the objection. The State responded, arguing the objection was improper because no 

conduct was being alleged by the photo. The district court agreed, overruled the objection, and 

the photo was admitted into evidence. 

The jury found Alwin guilty of felony eluding a peace officer. Alwin moved for a new 

trial arguing that the district court “erred in deciding it was permissible to expose the jury to 

[Alwin]’s prior booking photo.” The district court denied the motion. Alwin timely appealed and 

alleged the district court erroneously admitted I.R.E. 404(b) evidence and the district court’s 

denial of Alwin’s motion for a new trial was error. Alwin also alleged the State committed 

prosecutorial misconduct during closing arguments. The Court of Appeals reversed the district 

court’s judgment, and the State timely filed a Petition for Review. 

II. ISSUES ON APPEAL
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1. Whether the district court’s denial of Alwin’s motion for a new trial was an abuse of 

discretion.

2. Whether the prosecutor committed misconduct during closing argument that amounted to 

fundamental error.

III. STANDARD OF REVIEW

This Court reviews a district court’s denial of a motion for a new trial under an abuse of 

discretion standard. State v. Lankford, 162 Idaho 477, 491, 399 P.3d 804, 818 (2017) (quoting 

State v. Stevens, 146 Idaho 139, 144, 191 P.3d 217, 222 (2008)). Similarly, a district court’s 

determination that evidence is admissible under I.R.E. 404(b) is reviewed for an abuse of 

discretion. State v. Rawlings, 159 Idaho 498, 504, 363 P.3d 339, 345 (2015) (citing State v. 

Pepcorn, 152 Idaho 678, 690–91, 273 P.3d 1271, 1283–84 (2012)). “To determine whether a 

trial court has abused its discretion, this Court considers whether it correctly perceived the issue 

as discretionary, whether it acted within the boundaries of its discretion and consistently with 

applicable legal standards, and whether it reached its decision by an exercise of reason.” Id. 

(quoting Reed v. Reed, 137 Idaho 53, 57, 44 P.3d 1108, 1112 (2002)). 

“Where prosecutorial misconduct was not objected to at trial, [this Court] may only order 

a reversal when the defendant demonstrates that the violation in question qualifies as 

fundamental error[.]” State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010). Showing 

fundamental error requires the following: 

(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 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.

Id. at 226, 245 P.3d at 978 (citation omitted). The burden of showing fundamental error is placed 

on the defendant. Id. If the burden is satisfied, this Court must vacate and remand. Id. at 227, 245 

P.3d at 979.

IV. ANALYSIS 

A. The district court did not abuse its discretion in denying Alwin’s motion for a new 

trial. 

At trial, a prior booking photo of Alwin was offered into evidence by the State.

According to Alwin, the booking photo displays Alwin standing, unsmilingly, in front of a blank 
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wall, dressed in yellow “jail garb,” and it is apparent Alwin has a black eye. The introduction of 

the photo was accompanied by Officer Cohen’s testimony that he had viewed the photo from a 

computer system in his patrol vehicle. When asked by the district court whether the defense had

any objections to the introduction of the booking photo, Alwin’s counsel simply stated: “[w]e 

would object under 404(b).” The State responded: “[n]o, I don’t think it is 404(b) . . . [t]here is 

no conduct being alleged.” The district court agreed with the State and admitted the booking 

photo. Alwin moved for a new trial, pursuant to Idaho Criminal Rule 34, alleging the district 

court erred in admitting the photo into evidence. The district court denied the motion, stating “if 

the request had been made to redact the clothing from the photo, since there would be no harm in 

doing that, I probably would have ordered it. . . . But I don’t think it’s required, and so I am 

going to deny the motion.” On appeal, Alwin argues the motion for a new trial should have been 

granted because the district court “committed an error of law in not realizing that the booking 

photo was evidence of a prior bad act and, thus, failing to recognize that analysis under I.R.E. 

404(b) was required.” For the reasons to be discussed, the district court did not erroneously 

admit the booking photo because the photo did not constitute I.R.E. 404(b) evidence. Because 

the photo did not constitute I.R.E. 404(b) evidence, the district court’s denial of Alwin’s motion 

for a new trial was not erroneous. 

The Idaho Rules of Evidence applicable at the time of Alwin’s trial1 provided that, “[a]ll 

relevant evidence is admissible except as otherwise provided by these rules or by other rules 

applicable in the courts of this state. Evidence which is not relevant is not admissible.” I.R.E. 

402. Evidence is relevant if the evidence has “any tendency to make the existence of any fact that 

is of consequence to the determination of the action more probable or less probable than [the 

fact] would be without the evidence.” I.R.E. 401. However, “[e]vidence 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.” I.R.E. 404(b). But such evidence may be admissible for other 

permitted purposes such as proving “motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident[.]” Id. (emphasis added). If propensity evidence is 

offered for one of the above listed purposes, “the prosecution in a criminal case shall file and 

 1 The Idaho Rules of Evidence were amended in March of 2018 and the amendments became effective July 1, 2018. 

While the language differs slightly from the Rules in place at the time of Alwin’s trial, the content is substantially 

the same. 
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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.” Id. 

Mugshots are generally inadmissible under I.R.E. 404(b) because mugshots are indicative 

of a prior crime, wrong, or other bad act. See State v. Cunningham, 97 Idaho 650, 653, 551 P.2d 

605, 608 (1976). Mugshots are indicative of a prior crime, wrong, or other bad act because 

mugshots contain indicia typically associated with criminal activity. See id.; Barnes v. United 

States, 365 F.2d 509, 510–11 (D.C. Cir. 1966), (noting “[t]he double-shot picture, with front and 

profile shots alongside each other, is so familiar . . . that the inference that the person involved 

has a criminal record, or has at least been in trouble with the police, is natural, perhaps 

automatic.”); see also Eberhardt v. Bordenkircher, 605 F.2d 275, 280 (6th Cir. 1979) (“The use 

of mugshots has been strongly condemned . . . as effectively eliminating the presumption of 

innocence and replacing it with an unmistakable badge of criminality.”). Thus, mugshots that 

display the typical indicia associated with criminal activity—height lines, front and side profiles, 

and references to police departments—are inadmissible under I.R.E. 404(b). See Cunningham, 

97 Idaho at 653, 551 P.2d at 608; see also United States v. McCoy, 848 F.2d 743, 745–46 (6th 

Cir. 1988) (holding the district court erred in admitting mugshots that displayed defendant, 

among others, standing in front of height lines holding a sign that referenced the local police 

department).

However, mugshots that have been trimmed to eliminate the indicia described above are 

not indicative of criminal activity and thus, are not considered I.R.E. 404(b) evidence. See 

Cunningham, 97 Idaho at 653, 551 P.2d at 608. This Court has stated: “[p]hotographs showing 

the . . . appearance of a person are generally admissible in the discretion of the trial court, unless 

the photograph is so inflammatory that its probative value is outweighed by the prejudice which 

might result from its inflammatory nature.” State v. Carter, 103 Idaho 917, 921, 655 P.2d 434, 

438 (1981). Such photos used to “describe a person . . . are admissible for the purpose of 

explaining and applying the evidence and assisting the jury in understanding the case.” Id. 

(quoting State v. Kleier, 69 Idaho 278, 286, 206 P.2d 513, 518 (1949)). Photographic “evidence 

is used to clarify and present a more comprehensive explanation of the physical facts than could 

be obtained from the testimony of the witnesses.” Id. Thus, mugshots that have been trimmed to 

eliminate reference to prior criminal behavior, and therefore do not constitute I.R.E. 404(b) 
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evidence, will be admitted so long as the mugshot is relevant and the mugshot’s probative value 

outweighs prejudice to the defendant. See I.R.E. 401; I.R.E. 403.

This Court has held that a district court does not err in admitting a mugshot if the typical 

indicia are removed or trimmed. Cunningham, 97 Idaho at 653, 551 P.2d at 608. In Cunningham, 

the State offered into evidence a mugshot to prove, among other things, an extrajudicial 

identification of the defendant. Id. The mugshot had been trimmed to “eliminate any reference to 

the local police department[.]” Id. This Court affirmed the district court’s admission of the 

mugshot because the mugshot had probative value. See id. (citing United States v. Johnson, 495 

F.2d 378 (4th Cir. 1974)) (holding the district court did not err in admitting a taped-over mugshot 

that was offered to show the defendant’s appearance because the mugshot had probative value).

A few years later, this Court once again affirmed the district court’s admission of a 

mugshot where the “numbers and language at the bottom of the photograph, indicating it was a 

‘mug shot,’ were removed prior to the photo’s admission into evidence.” Carter, 103 Idaho at 

921, 655 P.2d at 438. In Carter, the mugshot was offered by the State to show the appearance of 

the defendant at the time of the incident. Id. This Court held the mugshot was admissible because 

it would serve as an aid in “explaining and applying the evidence and assisting the jury in 

understanding the case.” Id. at 922, 655 P.2d at 439. This Court reasoned the mugshot was more 

probative than prejudicial because the mugshot would assist the jury in having an “accurate 

contemporary view of the circumstances of the crime.” Id. at 922, 655 P.2d at 439.

Other state and federal jurisdictions have similarly held photos that lack the typical 

indicia of a mugshot may be admissible. For instance, in Washington, its Supreme Court held a 

mugshot that had all identifying information removed was properly admitted because the 

mugshot did “nothing to suggest it was a police photograph.” State v. Scott, 604 P.2d 943, 946 

(Wash. 1980). Similarly, the Supreme Court of Arizona held a mugshot that “excluded any 

reference to the [defendant’s] robbery or the circumstances surrounding the taking of the 

photograph” was admissible because the photo was relevant to prove identity and the admission 

was not unfairly prejudicial. State v. McCutcheon, 781 P.2d 31, 35 (Ariz. 1989). Additionally, 

the Sixth Circuit more recently held a photocopy of a photographic array was admissible because 

the array did not display jail identification numbers or height lines. United States v. George, 160 

Fed. Appx. 450, 456 (6th Cir. 2005) (recognizing the array was admissible despite the “use of 
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mug shots [being] highly disfavored” because the photo removed “any of the typical indicia of a 

mug shot” i.e. height lines or jail identification numbers). 

In this case, Alwin argues the district court erred in admitting the booking photo because 

the photo constituted I.R.E. 404(b) evidence and because the State failed to provide notice of its 

intent to use the booking photo. According to Alwin, the booking photo constitutes I.R.E. 404(b) 

evidence because it “demonstrated that Mr. Alwin had been incarcerated or at least arrested in 

the past.” The booking photo portrays Alwin, standing somberly in front of a blank wall, with a 

black eye and wearing a yellow scrub shirt. Alwin argues that from the photo it is clear he is 

wearing “jail clothing.” In addition, Alwin argues the booking photo was accompanied by 

Officer Cohen’s testimony stating he was able to view the photo from a computer system in his 

patrol vehicle. According to Alwin, the photo, along with the accompanying testimony, was 

evidence of a prior crime, wrong, or other act, and thus, was inadmissible under I.R.E. 404(b). 

This argument is unavailing. 

Alwin’s argument is that there should be an absolute bar for use of a booking photo under 

any circumstance. However, here, the booking photo lacks the typical indicia of a booking photo 

or mugshot. Unlike the photo in Barnes that consisted of “two close-up shots of [the defendant’s] 

face side by side, one full face and one a profile,” the booking photo here was not offered 

contemporaneously with a side profile view that would lead jurors to believe the photo was a 

mugshot. 365 F.2d at 510. Instead, similar to the photo in Cunningham that was admissible 

because it had been trimmed to eliminate any reference to the local police department, the 

booking photo here also lacked any reference to the local police department. 97 Idaho at 653, 

551 P.2d at 608. In addition, similar to the photo in George that was admissible because it lacked 

height lines and jail identification numbers, the booking photo here also lacked height lines and 

jail identification numbers. 160 Fed.Appx. at 456. Thus, the booking photo in this case does not 

constitute I.R.E. 404(b) evidence because it lacks the typical indicia of a mugshot; the frontfacing photo of Alwin was not accompanied by a side profile photo and the photo lacked height 

lines, any reference to the local police department, or jail identification numbers. 

Instead, the booking photo is a headshot of Alwin standing in front of a blank wall. As 

the district court recognized, the photo could have been a passport photo or a driver’s license 

photo. The State offered the booking photo for identification purposes. That is, the photo was 

offered with Officer Cohen’s testimony that he had viewed the photo on his computer after 
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stopping Alwin and the photo on record matched the description of the male he had stopped. 

Like the photo in Carter that was introduced, among other reasons, to assist the jury in 

understanding the case, the booking photo here was introduced to assist the jury in understanding 

how Officer Cohen confirmed the identity of the individual who drove away from a traffic stop 

and also the owner of the automobile for further investigation. 103 Idaho at 921, 655 P.2d at 438. 

Such photos are admissible because they are relevant and probative. See id. Therefore, the 

district court did not err in ruling the photo was not I.R.E. 404(b) evidence and ultimately 

admitting the booking photo into evidence. 

Alwin next argues the district court erred in denying his motion for a new trial because 

the district court erroneously admitted the booking photo. At the time the post-trial motion was 

made, Rule 34 provided “[t]he court on motion of a defendant may grant a new trial to the 

defendant if required in the interest of justice.”2 Rule 34 “does not provide an independent 

ground for a new trial.” State v. Lankford, 162 Idaho 477, 493, 399 P.3d 804, 820 (2017) 

(quoting State v. Cantu, 129 Idaho 673, 675, 931 P.2d 1191, 1193 (1997)). Instead, Idaho Code 

section 19-2406 sets forth the limited grounds for which a district court may grant a motion for a 

new trial. Such motions may be granted “[w]hen the court has misdirected the jury in a matter of 

law, or has erred in the decision of any question of law arising during the course of the trial” or 

“[w]hen the verdict is contrary to law or evidence.” I.C. § 19-2406(5)–(6). As discussed above, 

the district court did not err in admitting the booking photo because the photo does not constitute 

I.R.E. 404(b) evidence. Thus, the district court did not, as Alwin alleges, err by misdirecting the 

jury and the verdict was not contrary to the law or evidence. Thus, the district court properly 

denied Alwin’s motion for a new trial. 

B. The prosecutor committed prosecutorial misconduct but it did not rise to the level of 

fundamental error. 

Alwin asserts three instances of prosecutorial misconduct that occurred during the 

prosecutor’s closing argument. First, Alwin asserts the prosecutor committed misconduct by 

bolstering Officer Cohen’s testimony. Second, Alwin asserts the prosecutor committed 

misconduct by personally guaranteeing to the jury the defense’s theory of the case was untrue. 

Lastly, Alwin asserts the prosecutor committed misconduct by implicitly asking the jury to find 

Alwin guilty based on information other than evidence adduced at trial. Alwin concedes the 

 2 I.C.R. 34 was amended since the district court’s decision. The new language reads: “[o]n the defendant’s motion, 

the court may vacate any judgment and grant a new trial on any ground permitted by statute.” I.C.R. 34(a).
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instances of misconduct were not objected to in the district court. Each allegation will, in turn, be 

discussed below. 

“Where prosecutorial misconduct was not objected to during trial, this Court may only 

reverse when the misconduct constitutes fundamental error.” Lankford, 162 Idaho at 494, 399 

P.3d at 821 (quoting State v. Adamcik, 152 Idaho 445, 480, 272 P.3d 417, 452 (2012)). 

Fundamental error: “(1) violates one or more of the defendant’s unwaived constitutional rights; 

(2) plainly exists (without the need for any additional information not contained in the appellate 

records, including information as to whether the failure to object was a tactical decision); and (3) 

[is] not harmless.” Id. (quoting Perry, 150 Idaho at 228, 245 P.3d at 980). An error is harmless 

only if it can be proven beyond a reasonable doubt the error did not contribute to the jury’s 

verdict. Id. “If the defendant persuades [this Court] that the complained of error satisfies this 

three-prong inquiry, then [this Court] shall vacate and remand.” Perry, 150 Idaho at 228, 245 

P.3d at 980.

“There is . . . ‘considerable latitude in closing argument,’ and both sides are ‘entitled to 

discuss fully, from their respective standpoints, the evidence and the inferences’ that should be 

drawn from it.” State v. Dunlap, 155 Idaho 345, 369, 313 P.3d 1, 25 (2013) (quoting State v. 

Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969 (2003)). “Whether comments during closing 

arguments rise to the level of fundamental error is a question that must be analyzed in the context 

of the trial as a whole.” Lankford, 162 Idaho at 497, 399 P.3d at 824 (quoting State v. Carson, 

151 Idaho 713, 718–19, 264 P.3d 54, 59–60 (2011)). Unobjected-to prosecutorial misconduct 

that arises in closing argument must be so egregious that the prosecutor’s comments “so infected 

the trial with unfairness as to make the resulting conviction a denial of due process.” Id. (quoting 

Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Additionally, misconduct may be remedied 

by an instruction from the district court informing the jury that the attorneys’ comments are not 

evidence. Id. at 501–02, 399 P.3d at 828–29 (stating “the court explicitly informed the jury that 

comments during closing statements were not to be considered as evidence. . . . Given the 

context of the prosecutor’s comments, we do not think they were so egregious or inflammatory 

that they would not have been cured by the court’s instruction.”). 

The initial question in analyzing a prosecutorial misconduct claim is determining whether 

the prosecutor’s comments constituted misconduct. Id. at 494, 399 P.3d at 821. “It is the duty of 

the prosecutor to see that a defendant has a fair trial, and that nothing but competent evidence is 
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submitted to the jury.” State v. Christiansen, 144 Idaho 463, 469, 163 P.3d 1175, 1181 (2007) 

(quoting State v. Irwin, 9 Idaho 35, 44, 71 P. 608, 611 (1903)). Prosecutors, therefore, should not 

“exert their skill and ingenuity to see how far they can trespass upon the verge of error, [because]

generally in so doing they transgress upon the rights of the accused.” Id. Prosecutorial 

misconduct occurs “[w]here [the] prosecutor attempts to secure a verdict on any factor other than 

the law as set forth in the jury instructions and the evidence admitted during trial, including 

reasonable inferences that may be drawn from that evidence[.]” Lankford, 162 Idaho at 494, 399 

P.3d at 821. However, in reviewing allegations of prosecutorial misconduct, this Court “must 

keep in mind the realities of trial.” State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). 

“A fair trial is not necessarily a perfect trial.” Id. (quoting State v. Estes, 111 Idaho 423, 427–28, 

725 P.2d 128, 132–33 (1986)).

1. The prosecutor did not commit misconduct by commenting on the credibility of 

the State’s witness.

Alwin argues the prosecutor committed misconduct by vouching for the State’s witness, 

Officer Cohen, in closing argument. The statement at issue was: “[t]here’s one person in here 

who has the motive to not tell the truth, and he’s sitting right there. Not Officer Cohen, a police 

officer. He is not going to sit up here under oath and not tell the truth. He is credible. His 

testimony is credible. . . .” Alwin also argues the statement, “Officer Cohen wasn’t making 

anything up” was impermissible vouching. According to Alwin, these statements made by the 

prosecutor during closing argument “improperly placed the imprimatur of the State on Officer 

Cohen’s testimony[,]” and “improperly bolstered the testimony of the law enforcement witness 

and usurped the jury’s vital and exclusive role to make all credibility determinations[.]” 

“Vouching consists of placing the prestige of the government behind a witness through 

personal assurances of the witness’ veracity, or suggesting that information not presented to the 

jury supports the witness’s testimony.” Lankford, 162 Idaho at 497, 399 P.3d at 824 (quoting 

United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993)). Vouching occurs if there is no 

evidence to support an assertion made by the prosecutor. See id. at 498, 399 P.3d at 825 (“[T]he 

statement about [witness] being inconvenienced and telling the truth is vouching. There is no 

evidence to support the assertion by the prosecutor that [witness] ‘was inconvenienced[.]’ ”). 

However, “vouching statements, although constituting prosecutorial misconduct, do not 

constitute a clear constitutional violation.” Id. (citing Dunlap, 155 Idaho at 370, 313 P.3d at 26). 
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Thus, even where a prosecutor impermissibly vouches for a witness, the improper statements 

will not rise to the level of fundamental error. Id. 

In contrast, prosecutors are “entitled to explain how, from their own perspectives, ‘the 

evidence confirms or calls into doubt the credibility of particular witnesses.’ ” Dunlap, 155 Idaho 

at 369, 313 P.3d at 25 (quoting Sheahan, 139 Idaho at 280, 77 P.3d at 969). A prosecutor is 

permitted to “argue reasonable inferences based on the evidence, including that one of the two 

sides is lying.” Lankford, 162 Idaho at 497, 399 P.3d at 824 (citation omitted). Additionally, it is 

wholly permissible for a prosecutor to respond to a defendant’s “attempts to impeach the 

credibility of government witnesses.” Id. at 497–98, 399 P.3d at 824–25 (“The remaining 

statements about the truthfulness of the State’s witnesses . . . are not vouching because defense 

counsel opened the door to the discussion of the State’s witnesses’ veracity.”). 

In this case, the prosecutor’s statements did not constitute vouching because Alwin’s 

counsel called into question the credibility of the State’s witness, Officer Cohen, on crossexamination. During cross-examination, Alwin’s counsel questioned inconsistencies in Officer 

Cohen’s report. Alwin’s counsel asked, “[y]ou wrote it in your report, correct, that it was a high 

risk situation,” to which Officer Cohen responded: “I don’t recall using the term ‘high risk.’ ” A 

short time later, Alwin’s counsel also questioned Officer Cohen regarding the accuracy of his 

written report that was completed fifteen minutes after the incident. Alwin’s counsel stated: “[s]o 

in this particular case, after you had looked at the photograph of the registered owner, Mr. Alwin, 

from Officer Phillips’ vehicle, you say roughly 15 minutes later, you didn’t include that it 

occurred 15 minutes later in the report; is that right?” When Officer Cohen responded “[n]o,” 

Alwin’s counsel then asked: “[a]nd, in fact, you didn’t actually say that the driver was Mr. 

Alwin. You wrote that you believed it to be Mr. Alwin; is that right?” After some banter between 

Officer Cohen and Alwin’s counsel, Officer Cohen asked to review his report and then agreed 

that he indeed wrote “I believe it was Mr. Alwin driving the vehicle.” 

The exchange between Officer Cohen and Alwin’s counsel on cross-examination 

illustrates that Alwin attacked the credibility of Officer Cohen. This exchange allowed the 

prosecutor to comment on the State’s witness’s credibility. See Lankford, 162 Idaho at 497, 399 

P.3d at 824. Therefore, the prosecutor’s statements assuring the jury that Officer Cohen was, in 

fact, credible are not instances of vouching and do not constitute misconduct. 
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Further, the whole statement by the prosecutor connected the credibility statement to 

evidence in the record. The full statement made by the prosecutor was: 

There’s one person in here who has the motive to not tell the truth, and 

he’s sitting right there. Not Officer Cohen, a police officer. He is not going to sit 

up here under oath and not tell the truth. He is credible. His testimony is credible, 

and it was consistent and he documented everything that night that turned out to 

be true later on once he was arrested.

The emphasized language establishes that the prosecutor was not making assertions unsupported 

by the record. See Lankford, 162 Idaho at 498, 399 P.3d at 825. Indeed, the record provides 

documentation of Officer Cohen’s report that is consistent with Officer Cohen’s testimony. 

Because the prosecutor did not make unsupported assertions of Officer Cohen’s credibility, the 

prosecutor’s statements did not constitute vouching. Thus, the prosecutor did not commit 

prosecutorial misconduct. 

2. The prosecutor did not commit misconduct by guaranteeing to the jury that the 

State’s witness’s identification of Alwin was correct.

Alwin next argues the prosecutor committed misconduct by personally guaranteeing the 

jury that Alwin’s theory of the case was untrue. The first statement Alwin alleges is error is as 

follows:

And you can watch Cohen in that video, you know, what I got a view of is 

everything from the waist up, absolutely everything from the waist up. So he’s in 

there and he’s looking. And he’s a unique-looking guy. I guarantee if I walked 

him in here at the beginning of this case, had him stand here and look at you and 

then look away for 20 seconds, starting now, when you saw a picture of him 15 

minutes later and said, that’s the guy, you’re all going to pick him out, because 

it’s him.

According to Alwin, the statement violated his right to a fair trial because the prosecutor used the 

weight of his office to undermine Alwin’s theory of the case and disable the jury from making all 

credibility determinations. This argument is unpersuasive. 

Prosecutors, in closing arguments, are permitted to explain from their own perspectives 

how the evidence confirms or calls into doubt the credibility of a particular witness. Dunlap, 155 

Idaho at 369, 313 P.3d at 25. The prosecutor’s comments simply cast doubt on the testimony 

provided by the expert regarding the accuracy of identification. Alwin’s expert specifically 

testified about the amount of time needed to make an accurate representation. The expert 

testified: “We know from a variety of studies what the accuracy rate is under pretty much ideal 

circumstances if somebody only gets, let’s say, 10 or 12 seconds of view, and we know that the 
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accuracy rate is in comparison if somebody gets 30 or 40 seconds of view.” The expert also 

testified: “If you only get a really brief glimpse of someone, the likelihood of you being able to 

ID them later on goes down, and if you get a much longer view of someone, the likelihood of 

being able to ID them goes up.” The prosecutor’s statements guaranteeing the jury they would be 

able to identify Alwin after only twenty seconds were directly related to the expert’s testimony 

regarding the accuracy of identification. Therefore, such statements do not constitute 

misconduct. 

Alwin also attacks the statement:

And I guarantee you one thing: [i]t’s not two Russian guys, one of two Russian guys 

who looks slightly like him. It didn’t happen that way. It did not happen that way. It 

happened just as [Officer] Cohen said it happened, and there’s a lot of evidence to 

support that, because it happened.

Alwin argues his right to a fair trial was violated by the statement because the jury was unable to 

determine Officer Cohen’s credibility on its own. This argument is also unpersuasive. 

The prosecutor’s comment regarding the “Russian guys” was also casting doubt on 

Alwin’s testimony that it was possible someone else was driving his car the night of the traffic 

stop. On direct-examination, Alwin testified that two individuals had access to his car. However, 

the men were never discussed again and no evidence was introduced to support Alwin’s theory. 

Conversely, Officer Cohen did testify about identifying Alwin and there was evidence provided 

in Officer Cohen’s report which supported his identification of Alwin. Thus, the comment about 

not believing Alwin’s theory of the case was merely asking the jury to determine who was more 

credible, Alwin or Officer Cohen. Such statements are not misconduct. 

3. The prosecutor’s comments regarding the expert’s testimony and providing his 

own personal opinion constitute prosecutorial misconduct but do not rise to the 

level of fundamental error.

Alwin argues the prosecutor committed misconduct by asking the jury to decide the case 

based on facts not supported by the record. The prosecutor stated: “[a]nd I completely disagree 

with the expert. I know that, you know, he’s got some fancy titles and stuff, that when you’re 

under stress, you focus less. I completely disagree. I think that a lot of people get hyperfocused 

when they stress.” According to Alwin, the prosecutor’s comments were “asking the jury to trust 

his opinion, as a prosecutor instead of an expert (and so conflicting with the trial evidence) to 

make a finding contrary to the only evidence in the record.” The State responds that the 
14

prosecutor’s comments were simply asking the jury to use their common sense to evaluate the 

expert’s testimony. 

“This Court has long instructed that, if the State 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. Montgomery, 163 Idaho 40, ___, 408 P.3d 38, 44 (2017) (citing State v. 

Garcia, 100 Idaho 108, 110 n. 1, 594 P.2d 146, 148 n. 1 (1979)). Such personal opinions 

constitute misconduct because a prosecutor cannot “secure a verdict on any factor other than the 

law as set forth in the jury instructions and the evidence admitted during trial, including 

reasonable inferences that may be drawn from that evidence . . . .” Lankford, 162 Idaho at 494, 

399 P.3d at 821.

This Court has held it is improper for a “prosecutor to express his personal belief or 

opinion as to the truth or falsity of any testimony or evidence[.]” Garcia, 100 Idaho at 110, 594 

P.2d at 148. Such personal statements constitute misconduct because they are a “form of 

unsworn, unchecked testimony” that can “exploit the influence of the [government].” Id. at 111, 

594 P.2d at 149. In Garcia, the prosecutor stated: “I don’t believe [defendant]’s story, too many 

coincidences, too many slips and slides around the facts.” Id. at 110, 594 P.2d at 148. This Court 

held the statement constituted prosecutorial misconduct because a prosecutor should not express 

his personal opinion or belief as to the truth or falsity of a defendant’s testimony. Id. at 111, 594 

P.2d at 149. 

A prosecutor, however, does not express a personal opinion or belief as to the truth or 

falsity of a defendant’s testimony if the statement is based on evidence that has been submitted to 

a jury. Montgomery, 163 Idaho at ___, 408 P.3d at 45. In Montgomery, the jury was shown a 

video of the alleged incident and heard evidence of the defendant’s actions the night of the 

incident. Id. In closing argument the prosecutor stated: “Ladies and gentlemen, you heard

[defendant] lie to you.” Id. at ___, 408 P.3d at 44. This Court held the prosecutor’s comments 

alleging the defendant lied were not based on personal beliefs because a video was shown to the 

jury regarding the defendant lying. Id. at ___, 408 P.3d at 45. Thus, the comments were not 

misconduct because they were not “couched in terms of the [prosecutor’s] personal beliefs. Id. 

In this case, the prosecutor stated that he “completely disagree[ed]” with the expert. The 

prosecutor did not attack the credibility of the expert. Instead, the prosecutor expressed a 

personal opinion that he disagreed with the expert’s testimony. The prosecutor’s comment was 
15

also based on facts the jury did not hear. The prosecutor commented: “I think that a lot of people 

get hyperfocused when they stress.” However, the State did not provide an expert to rebut 

Alwin’s expert’s opinion, nor was evidence provided that discussed individuals becoming 

“hyperfocused” when stressed. Thus, the prosecutor’s comments expressed a personal belief or 

opinion as to the truth or falsity of testimony or evidence, and thus, constituted misconduct. See 

Garcia, 100 Idaho at 110, 594 P.2d at 148.

Because we conclude the prosecutor’s comments regarding his disagreement with the 

expert’s testimony constituted misconduct, we must determine whether the misconduct rose to 

the level of fundamental error. Perry, 150 Idaho at 226, 245 P.3d at 978. “Prosecutorial 

misconduct during closing arguments will constitute fundamental error only if the comments 

were so egregious or inflammatory that any consequent prejudice could not have been remedied 

by a ruling from the trial court informing the jury that the comments should be disregarded.” 

Lankford, 162 Idaho at 501, 399 P.3d at 828 (quoting Parker, 157 Idaho at 146, 334 P.3d at 820).

As mentioned above, in Lankford, the appellant alleged the prosecutor committed 

misconduct by repeatedly stating the defendant had lied or was a liar. Id. at 499, 399 P.3d at 826 

(listing sixteen instances where the prosecutor stated the defendant lied or was a liar). This Court 

disagreed, and held the prosecutor’s comments did not constitute misconduct. Id. at 501, 399 

P.3d at 828. However, this Court went on to recognize that even if the statements rose to the 

level of prosecutorial misconduct, the misconduct would not rise to the level of fundamental 

error. Id. In its reasoning, this Court recognized the district court “explicitly informed the jury 

that the comments during closing [arguments] were not to be considered as evidence.” Id. 

Further, an instruction was provided to the jury that stated: “The arguments and statements of the 

attorneys are not evidence. If you remember the facts differently from the way the attorneys have 

stated them, you should base your decision on what you remember.” Id. Because the instruction 

was provided, this Court concluded that even if the comments constituted misconduct, the 

misconduct would not rise to the level of fundamental error because the comments were not so 

egregious or inflammatory that the instruction would not have remedied any consequential 

prejudice. Id. 

In this case, the misconduct does not amount to fundamental error because a jury 

instruction was provided that remedied any prejudice. That instruction provided: 
16

The evidence you are to consider consists of, one, sworn testimony of witnesses; 

two, exhibits which have been admitted into evidence; and three, any facts to 

which the parties have stipulated. Certain things you have heard or seen are not 

evidence, including, one, arguments and statements by lawyers. The lawyers are 

not witnesses. What they say in their . . . closing arguments and at other times is 

included to help you interpret the evidence, but it is not the evidence. If the facts 

as you remember them differ from the way the lawyers have stated them, follow 

your memory. 

The instruction here is very similar to the instruction in Lankford that informed the jury what the 

lawyers said in closing arguments was not evidence and should not be considered as evidence. 

Lankford, 162 Idaho at 501, 399 P.3d at 828. Further, the comments in this case are not so 

egregious or inflammatory that they become incurable by such an instruction. Id. In fact, the 

comment complained of is brief, and occurred on a single, isolated occasion. This Court in 

Lankford concluded that reoccurring statements attacking the defendant’s honesty were not so 

egregious and inflammatory that the jury instruction would not remedy any consequential 

prejudice. Id. Here, the brief, isolated comment is similarly not egregious or so inflammatory that 

the jury instruction would not remedy any consequential prejudice. Therefore, the misconduct 

did not rise to the level of fundamental error.

V. CONCLUSION

We affirm the district court’s admission of the booking photo and affirm the district 

court’s denial of Alwin’s motion for a new trial. While one of the challenged statements by the 

prosecutor constituted prosecutorial misconduct, it did not constitute fundamental error. 

Accordingly, the district court’s judgment is affirmed.

Justices HORTON, BRODY and BEVAN, CONCUR.

STEGNER, Justice, dissenting in part and concurring in part. 

I dissent from the majority’s conclusion that “the district court did not erroneously admit 

the booking photo because the photo did not constitute I.R.E. 404(b) evidence . . .” as set out in 

Section IV.A. 

At trial, and over a proper objection, the trial judge admitted evidence of Alwin’s 

previous incarceration as depicted in a booking photo. Unlike the majority, I view the evidence 

as subject to I.R.E. 404(b) (similarly to the Idaho Court of Appeals). The process employed by 

the deputy prosecutor and the judge did not comport with what was required by the Rule, thus, 

resulting in an abuse of discretion. (It is also hard for me to understand how the majority can 

conclude the district court did not err in admitting the booking photo because the photo does not
17

constitute I.R.E. 404(b) evidence, when the trial judge herself concluded that she “probably” 

would have redacted portions of the photo had she appreciated it was a booking photo prior to its 

admission.) Further, I cannot conclude the evidence was harmless. Accordingly, I would vacate 

Alwin’s conviction, and remand the case to the district court.

The facts are relatively straight-forward. At approximately 1:30 a.m. on August 3, 2015, 

a Coeur d’Alene police officer (Officer Cohen) spotted a speeding Mercedes automobile and 

effected a traffic stop. The officer provided the car’s Montana license plate to dispatch and 

approached the vehicle. The stop took twenty-two seconds. The driver never completely lowered 

the tinted driver’s window of the Mercedes. The driver was wearing a hat that he never removed. 

The driver never looked directly at the officer. At one point, the officer observed approximately 

three-quarters of the driver’s face. After this brief encounter, the driver sped away and was not 

apprehended in the car, even though the officer and others engaged in a high-speed chase.

Approximately fifteen minutes after he stopped the Mercedes, Officer Cohen accessed 

the booking photo of Alwin on his car’s computer. The color photo depicted Alwin in jail garb 

(yellow scrubs) with a partially blackened eye. The officer viewed the photo and concluded that 

the person he had previously stopped was the person depicted in the photograph. Alwin was later 

charged with felony fleeing or attempting to elude a peace officer in violation of Idaho Code 

section 49-1404(2). The case went to trial on July 6, 2016, eleven months after the traffic stop. 

At trial, the identification of Alwin as the driver of the car in question was hotly 

contested. Alwin presented an alibi defense, which included his half-brother testifying that Alwin 

had been with him in Montana at the time of the stop, and consequently could not have been in 

Coeur d’Alene on the day in question. Defense counsel also presented expert testimony to 

discredit the officer’s post-chase identification.

In the State’s case-in-chief, the deputy prosecutor sought the admission of Alwin’s prior 

booking photo. (Curiously and tellingly, the photo was never identified as a booking photo by 

the deputy prosecutor prior to its admission, even though the deputy prosecutor had an 

opportunity to do so outside the presence of the jury.) Defense counsel properly objected to the 

booking photo on the basis of Rule 404(b) of the Idaho Rules of Evidence. The State responded 

that no conduct was being alleged. The district judge did not do what was required under I.R.E. 

404(b) because she did not look closely at the photo and misperceived it as a driver’s license 
18

photo. The judge admitted it without ever engaging in the two-tiered balancing test that is 

required under I.R.E. 404(b).

The jury convicted Alwin. He then moved for a new trial contending that the district 

court erred in admitting the booking photo. Following a hearing, the district judge denied the 

motion. Alwin was sentenced on the jury’s verdict of guilty. On appeal, a unanimous Idaho 

Court of Appeals concluded the district judge abused her discretion in admitting the booking 

photo into evidence. The Court of Appeals could not conclude the error was harmless. It ordered 

that the judgment of conviction be vacated and that the case be remanded to the district court. 

We granted the State’s Petition for Review.

Rule 404(b)(1) of the Idaho Rules of Evidence provides that “[e]vidence of a crime, 

wrong or other act is not admissible to prove a person’s character in order to show that on a 

particular occasion the person acted in accordance with the character.” In other words, I.R.E. 

404(b) generally prevents a person’s history from being used to convict him of the current 

charge. 

The rationale for this prohibition in a criminal case, is the recognition that 

such evidence will induce the jury to believe the accused is more likely to have 

committed the charged crime because the accused is a person of bad character, 

distracting the jury from the prime consideration of the defendant’s guilt or 

innocence of the particular crime charged.

D. CRAIG LEWIS, IDAHO TRIAL HANDBOOK § 13:5 at 222 (2d ed. 2005) (citing State v. Shepherd, 

124 Idaho 54, 855 P.2d 891 (Ct. App. 1993)). 

There are exceptions to the general rule. In addition, the Rule sets forth a process that 

must be followed in order for prior bad act evidence to be admitted at trial. Before a prosecutor 

may seek admission of an accused’s prior bad act, he must 

(A) file and serve reasonable notice of the general nature of any such evidence 

that the prosecutor intends to offer at trial; and 

(B) do so reasonably in advance of trial – or during trial if the court, for good 

cause shown, excuses lack of pretrial notice.

I.R.E. 404(b)(2)(A) & (B). This Court has held that the notice requirement in I.R.E. 404(b) is 

mandatory and failure to give advance notice would bar the admission of such evidence. State v. 

Sheldon, 145 Idaho 225, 230, 178 P.3d 28, 33 (2008). 

Admissibility under I.R.E. 404(b), after the evidence is brought to the judge’s attention 

prior to trial, is subject to a two-tiered analysis. State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185, 

1188 (2009). The first tier has two steps. Id. The trial judge must first determine that the fact of 
19

the crime or wrong has been established. Id. If the fact of the crime or wrong can be established, 

the trial judge must next determine if admitting that evidence would be relevant. Id. “Evidence of 

uncharged misconduct must be relevant to a material and disputed issue concerning the crime 

charged, other than propensity.” State v. Field, 144 Idaho 559, 569, 165 P.3d 273, 283 (2007). 

“Such evidence is only relevant if the jury can reasonably conclude that the act occurred and that 

the defendant was the actor.” Grist, 147 Idaho at 52, 205 P.3d at 1188 (citing United States v. 

Beecham, 852 F.2d 898 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920 (1979)). 

If this first hurdle is overcome, the trial judge must then undertake a balancing under 

I.R.E. 403 to “determine whether the danger of unfair prejudice outweighs the probative value of 

the evidence.” Id. (citing M. CLARK, REPORT OF THE IDAHO STATE BAR EVIDENCE COMMITTEE, 

Ch. 404, p. 4 (4th Supp. 1985); State v. Sheahan, 139 Idaho 267, 275, 77 P.3d 956, 964 (2003) 

(citations omitted).

Given that process as a background, here is what was and was not done in Alwin’s case: 

the deputy prosecutor did not apprise the trial judge that the evidence sought to be admitted was 

evidence of the defendant’s prior bad act, nor did he even identify it as a booking photo. 

Much has been said about whether the booking photo appears to be what it undoubtedly 

is, a booking photo. The photo depicts Alwin in yellow scrubs with a partially blackened eye. It 

does not contain other indicia of a booking photo, such as a background depicting the subject’s 

height as is sometimes included, nor does it have numbers or a name placard, or an identification 

of either the subject or the arresting agency as is also sometimes seen. What it does show is 

Alwin in yellow scrubs with a partially blackened eye. It was also identified as having been 

accessed by the officer on his police cruiser’s computer. Given the context in which it was 

identified and introduced, it appears likely that the photo would have been perceived as what it 

was, a booking photo, evidencing a prior arrest.3 In other words, it was precisely the type of 

evidence that can be misused by a jury. It is also precisely the type of evidence I.R.E. 404(b) is 

intended to address. 

 3 Some have suggested the photo could just as easily be a driver’s license or a passport photo. The majority has 

concluded the booking photo did not constitute I.R.E. 404(b) evidence. However, I have never seen either a driver’s 

license or a passport photo depicting someone with a partially blackened eye or in scrubs, yellow or otherwise. I 

think anyone who regularly watches television, accesses the internet, or reads a newspaper would recognize it as a 

booking photo or mug shot. Particularly, given that it was contained in and identified as being from the data bank 

accessible to the police. 
20

The colloquy between counsel and the trial judge that occurred during trial and prior to 

the photo being offered is instructive as to what the deputy prosecutor did and did not do.4

 The 

deputy prosecutor, Mr. Whitaker, acknowledged that he sought to have admitted at least two 

photos: with regard to the first, the booking photo that was admitted over defense counsel’s 

objection, the following statement was made: 

I don’t think there’s a problem. It’s the photo that Officer Cohen looked at and 

was admitted at the prelim[inary hearing] shortly after the alleged defendant – the 

person who drove off took off. So this is what he used to verify the person he saw 

about 15 minutes after he left. So I don’t think there’s going to be an issue with 

this, but the issue is with the jail booking photos.

(Emphasis added). The clear implication from the deputy prosecutor’s statements is that the 

photo he sought to admit, and with which he did not think there was a problem, was not a 

booking photo. As is now obvious, that implication is misleading at best. (Elsewhere in this 

opinion I deal with the issue of prosecutorial misconduct, specifically during closing argument. I 

think misleading the court, whether done wittingly or unwittingly, constitutes prosecutorial 

misconduct, and is a more egregious error, than that which occurred during closing.) 

In actuality, the deputy prosecutor sought to introduce at least two photos, both of which 

were booking photos. One involved a booking photo from a prior crime, which clearly 

implicates I.R.E. 404(b). The other involved the booking photo created as a result of the charge 

of eluding brought in this case, which in the scheme of things is less problematic than the photo 

from a prior arrest. Ultimately, the trial judge did not admit the latter booking photo, the one 

generated as a result of the underlying eluding case, due to a discussion on the record and a 

compromise being entered into by counsel prior to it being offered. However, the booking photo 

from the prior arrest was admitted. Evidence of a previous arrest is more unfairly prejudicial 

 4 MR. WHITAKER [the deputy prosecutor]: Briefly, Your Honor, there’s a couple 

photographs the State intends on getting in. The first one [the booking photo at the heart of this 

appeal] is – I don’t think there’s a problem. It’s the photo that Officer Cohen looked at and was 

admitted at the prelim[inary hearing] shortly after the alleged defendant – the person who drove 

off took off. So this is what he used to verify the person he saw about 15 minutes after he left. So I 

don’t think there’s going to be an issue with this, but the issue is with the jail booking photos. And 

so I have subpoenaed Officer Shank down here, because one of the issues here that Officer Cohen 

noticed was a tattoo, and Mr. Logsdon [defense counsel] voir dired briefly on it, anybody have any 

issues with tattoos.

I intend on getting these in, and normally I would not do that. These are booking photos. 

But the defense essentially placed it at issue by claiming an alibi defense, and so I think these do 

come into evidence and they are relevant. And Mr. Logsdon and I we’ve done a pretty good job of 

working most things out, but we’re going to have a dispute over these. So we were just kind of 

looking to make this go a little smoother, maybe a salvo from the Court on what the Court intends 

to do, whether we get these in or not.
21

than a booking photo generated from the eluding charge, because the jury can logically infer that 

Alwin was arrested due to the underlying charge. It is exponentially more prejudicial to Alwin to 

admit his booking photo from a prior arrest because it implies a prior bad act (which is what 

I.R.E. 404(b) prohibits). 

Because the process required by I.R.E. 404(b) was not followed, the judge could not 

make the threshold determination. She could not assess “whether there is sufficient evidence to 

establish the other crime or wrong as fact.” Grist, 147 Idaho at 52, 205 P.3d at 1188. In fact, that 

determination has never been made. Alwin’s prior booking photo was admitted and shown to the 

jury without this initial determination having ever been made. 

The next determination that needed to be made (assuming the judge concluded that a 

wrong or crime had actually been committed by Alwin), was whether introduction of that 

evidence was “relevant to a material and disputed issue concerning the crime or wrong” charged. 

Grist, 147 Idaho at 52, 205 P.3d at 1188.

And finally, if the first part of the two-tiered test was met, the judge was obliged to weigh 

whether the danger of unfair prejudice substantially outweighed the probative value of the 

evidence. Grist, 147 Idaho at 52, 205 P.3d at 1188.

The majority opinion states that adopting Alwin’s argument would create an absolute bar 

to the use of a booking photo or mug shot at a trial in the future. I respectfully disagree. The 

remedy Alwin seeks is to require the deputy prosecutor and the trial judge to follow the Idaho 

Rules of Evidence, which was not done at his trial. This Court should require that any 

recognizable booking photo go through the process set out in I.R.E. 404(b) and the two-tiered 

test outlined in Grist before it is admitted. If the judge makes the determination that the booking 

photo satisfies the standard, then the booking photo would be admissible. However, this was not 

the case here. We frequently state that a defendant is not entitled to a perfect trial, but is entitled 

to one that is fair. See State v. Ellington, 151 Idaho 53, 62, 253 P.3d 727, 736 (2011) (citation 

omitted). Under these circumstances, I cannot conclude Alwin received a fair trial.

Here, the deputy prosecutor did not apprise the court prior to trial (as is required by the 

Rule, unless good cause is shown) of his intention to offer a booking photo in evidence. It is 

unclear why he brought one booking photo to the attention of the trial judge, but kept that 

information from her with regard to another. It is also unclear why the deputy prosecutor never 

showed the booking photo that was admitted into evidence to the judge prior to it being shown to 
22

the jury. The defense attorney recognized the evidence as subject to I.R.E. 404(b) and voiced his 

objection in a timely way. The trial judge did not recognize the booking photo for what it was, 

and admitted it over proper objection without ever getting a close look (and without ever being 

told it was a booking photo). It was not until after the trial that the judge was presented with the 

fact that the photo was taken when Alwin was arrested and booked into the Kootenai County jail 

on a previous charge.

The trial judge also mistakenly put the blame for the admission of the evidence on 

defense counsel. As noted by the defense attorney, Mr. Logsdon, during the hearing on the 

motion for a new trial:

I didn’t make a speaking objection because I consider most courts frown upon 

them and I just don’t think they’re the correct thing to do. So I made a simple 

objection under 404(b), the State responded, and the Court made it’s [sic] ruling, 

and the photograph was before the jury rather quickly thereafter.

The trial judge responded to counsel’s statement in the following way:

In addition, the objection -- and I certainly appreciate, Mr. Logsdon, 

absolutely appreciate your not giving speaking objections, particularly in a jury 

trial, but there are alternatives to that. This objection doesn’t state the grounds, in 

my view, well enough. And I didn’t understand it. Now, that could be on me, but 

there are ways to present that to the Court, and one of those ways is to say, Judge, 

I think we need to have a discussion outside the presence of the jury, we excuse 

the jury, we have the discussion so that we can take up the objection.

The defense attorney did what was required of him. To require more evidences a 

misunderstanding of the Rule. The prosecutor is obliged to bring 404(b) evidence to the court’s 

attention prior to trial. If he does not, he is required to demonstrate “good cause” for that failure 

if he hopes to have the evidence admitted. Failure to comply with the Rule renders the evidence 

inadmissible. Sheldon, 145 Idaho at 230, 178 P.3d at 33. Here, he did not bring it to the court’s 

attention even though he did so with a different booking photo. To suggest the defense attorney 

could have or should have done more, impermissibly shifts the responsibility for the oversight to 

the wrong party. The rule clearly puts the responsibility on the prosecution. To shift that burden, 

as the trial judge did, constitutes an abuse of discretion.

I also think the majority’s reliance on State v. Cunningham, 97 Idaho 650, 653, 551 P.2d 

605, 608 (1976), and State v. Carter, 103 Idaho 917, 921, 655 P.2d 434, 438 (1981) is misplaced 

for several reasons. First, Cunningham and Carter both predate Idaho’s adoption of its Rules of 
23

Evidence. See generally M. CLARK, REPORT OF THE IDAHO STATE BAR EVIDENCE COMMITTEE

(1983). Consequently, they are of no precedential value in analyzing this case. 

Second, the booking photos admitted in Carter and Cunningham are distinguishable from 

Alwin’s photo. First, the booking photo admitted in Carter was taken at the time of the 

defendant’s arrest for the crime on which he was being tried. Carter, 103 Idaho at 921, 655 P.2d 

at 438. Even though, as stated above, I.R.E. 404(b) had not been adopted, the Rule would not 

necessarily have been implicated because it was not evidence of a prior bad act. 

In Cunningham, it is unclear exactly when the photo was taken that was presented to the 

jury, however, this Court noted “it is just as likely that the jury assumed [the photo had been] 

taken by the police when the appellant was arrested on the charges for which he was presently 

being tried.” Cunningham, 97 Idaho at 653, 551 P.2d at 608. Additionally, and importantly, the 

judge in that case gave a limiting instruction stating, “the photograph merely showed that 

appellant had been arrested and that it was not to be considered evidence that appellant had any 

prior criminal record.” Id.

In this case, Alwin was purportedly identified from his booking photo taken from a prior

arrest. Since the jury was told the officer accessed the photo fifteen minutes after the traffic stop, 

the jury could only infer that the photo admitted during the trial was from a prior booking. As 

stated previously, I.R.E. 404(b) was created to avoid this very misuse. Further, there was no 

limiting instruction, as the district court did not recognize the prejudicial nature of the photo 

being introduced. The Cunningham and Carter decisions are not comparable to this case, and are 

not useful in determining whether I.R.E. 404(b) should apply in this case.

In conclusion, I believe the district court abused its discretion by failing to apply the 

required applicable legal standards to I.R.E. 404(b) evidence. As the judge failed to recognize the 

booking photo as implicating I.R.E. 404(b) and failed to perform the proper analysis, she did not 

do what was required under the rules. I cannot conclude the error in admitting the booking photo 

was harmless. I would reverse and remand just as the Court of Appeals did.

I concur with the portion of the majority’s opinion in which the Court concludes that 

prosecutorial misconduct (not relating to the introduction of the booking photo) did not rise to 

the level of fundamental error as set out in Section IV.B. 

I write separately to note that I would hold that there was also prosecutorial misconduct 

in regard to the following statements made by the deputy prosecutor:
24

I guarantee if I walked him in here at the beginning of this case, had him 

stand there and look at you and then look away for 20 seconds, starting now, 

when you saw a picture of him 15 minutes later and said, That’s the guy, you’re 

all going to pick him out, because it’s him.

He then said, “[a]nd I guarantee you one thing: It’s not two Russian guys, one of two Russian 

guys who looks slightly like him. It didn’t happen that way.”

Although it is true that a prosecutor is permitted to explain from his or her own 

perspective how evidence either confirms or calls into doubt the credibility of a particular 

witness, using a phrase like “I guarantee” is particularly concerning for the effect it has on the 

jury. The phrase “I guarantee” is on the wrong side of the ledger when it comes to the use of 

personal opinions. When the prosecutor guarantees something, that creates an inference that 

should not be allowed. See State v. Montgomery, 163 Idaho 40, 46, 408 P.3d 38, 44 (2017) 

(citing State v. Garcia, 100 Idaho 108, 110 n.1, 594 P.2d 146, 148 n.1 (1979)).

While I take issue with such phrases being used in closing arguments, I cannot say that 

the statements rose to the level of fundamental error in this case. Here, the district court gave a 

jury instruction stating, “what [lawyers] say in their . . . closing arguments . . . is included to help 

you interpret the evidence, but it is not evidence.” Similar to the other instance of misconduct 

noted by the majority, it likely does not rise to the level of “egregious and inflammatory” 

language that could not be remedied by the jury instruction. Therefore, the misconduct does not 

rise to the level of fundamental error, and thus, is not reversible. Consequently, I concur with the 

outcome of the majority that we should not reverse and remand on the grounds of prosecutorial 

misconduct.