1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38229

STATE OF IDAHO , Plaintiff-Respondent ,

v. WILLIAM THOMAS SCOTT, JR. , Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) 2012 Unpublished Opinion No. 541

Filed: June 28, 2012
Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia County. Hon. Michael R. Crab tree , District Judge.
Judgment of conviction for delivery of a controlled substance within 1000 feet of a school, affirmed

. Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy Appellat e Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.

________________________________________________ GUTIERREZ, Judge William Thomas Scott, Jr. appeals from his judgment of conviction entered upon a jury verdict finding him guilty of delivery of a controlled substance within 1000 feet of a school. For the reasons set forth below, we affirm

. I.
FACTS AND PROCEDURE
O ffi cers with the Cassia County She riff’s Office set up a controlled methamphetamine buy between a confidential informant and Scott, whom the informant had known for years and had identified as a source for drugs. In exchange for her cooperation, the informan t, who had been charged with possession of methamphetamine with the intent to deliver, was allowed to participate in a drug court program in lieu of incarceration

. The informant arranged the purchase from Scott over the telephone in several calls recorded by law enforcement. A fter being searched by officers and having her vehicle searched2 as well, the informant drove her vehicle to the location Scott chose to deliver the drugs. She was followed by several officers conducting surveillance, none of whom were close enough to see the actual transaction take place or to positively identify Scott, but who saw a vehicle registered to Scott approaching the area and s topping near the informant’s vehicle . Upon the informant’s
return to the S heriff’s office, officers recovered a bag containing a substance later identified as methamphetamine. Because the transaction occurred near Burley Junior High School, Scott was charged with delivery of a cont rolled substance within 1000 fee t of a school, Idaho Code §§ 37

- 2732(a)(1)(A), 37

- 2739B(b)(2). At trial, the informant testified in detail as to the transaction, identifying Scott as the person who delivered the methamphetamine

. T he officers involved als o testified as to the
incident and their observations. Scott neither presented any witnesses, nor testified on his own behalf. In closing argument, the prosecutor stated on numerous occasions, without objection
from the defense, that the evidence in rega rd s to various individual elements of the crime was

“ undisputed” or “ uncontradicted.” The jury found Scott guilty as charged, and he now appeals.
II.
ANALYSIS Scott contends the prosecutor’s eight references during closing arguments
, that the State’s evidence was uncontradicted or undisputed
, constituted fundamental error in violation of Scott’s Fifth Amendment right to remain silent. The prosecutor’s comments during closing argument
were as follows: First of all, on or about February 13 th , 20 09. The evidence is undisputed, uncontradicted that this controlled buy happened on that date.

. . . .

. . . Number two, in the State of Idaho. That evidence also is uncontradicted . It was confirmed by a number of witnesses that the controlled buy happ ened in Cassia County, in the city of Burley, in the State of Idaho, even narrowed down to almost the exact place on 13th Street where the controlled buy happened.

. . . .

. . . The only evidence before you is that the substance in question was methamph etamine. . . . Again, that point is essentially undisputed

.

. . . .

. . . Also contained within point number three, that it was William Scott, the defendant in this case, that delivered that methamphetamine. That evidence also is uncontradicted and undisputed . Every witness who had any connection to3 this case as far as the controlled buy or the surveillance connected William Scott to that controlled buy in some way. [The informant] had to face Mr. Scott, the man who sold her that methamphetamine, and identify him publicly in court. She did that, and that identification was undisputed

.

. . . . Her testimony, again, is that he sold her or delivered [to] her methamphetamine, and there is no evidence to contradict that . In fact, all of the other ev idence introduced in this trial corroborates or supports her testimony.

. . . . Instruction Number 16 will be the next big question, and that is very straightforward, very simple, and that is simply whether the delivery occurred within 1,000 feet of the property of any public or private, primary or secondary school. Again, the eviden ce was completely uncontradicted

. (Emphasis added.) The prosecutor then stated, during rebuttal argument: [ The informant ] was being honest. She was telling you what happened, and that evidence is uncontradicted

.

. . . .

. . . [ The informant ] was unde r oath. She promised to tell the truth, and there was [no] evidence to contradict that.
(Emphasis added.)
Scott argues the prosecutor’s repeated reference s to the informant ’s testimony as

“ uncontr adict ed
, ” as well as other comments that the evidence was “ uncontr adict ed” or

“ undisputed
, ” constituted comment s regarding the exercise of his Fifth Amendment right not to testify. Although Scott made no objec tion at trial to the prosecutor’s statements, Scott contends this claimed violation of his constitutional right not to testify should be reviewed on appeal as
fundamental error. According to the Idaho Supreme Court , t o obtain relief on appeal for fundamental error the following three prongs must be met : (1) the de fendant must demonstrate th at 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 demonstrat e t he 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). If the alleged error satisfies the first two4 elements of the Perry test, the error is reviewable. Id

. To obtain appellate relief, however, the
defendant must furth er persuade the reviewing court the error was not harmless
, i.e. , that there is
a reasonable possibility the error affected the outcome of the trial and thereby prejudiced the
defendant. Id

. Scott maintains the first prong of the Perry test is satisfied here because the prosecutor’s

com ments violated the Fifth Amendment guarantee that “ [n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. C ONST . amend. V. This constitutional safeguard forbids prosecutorial comments to the jury regarding a defe ndant’s failure to testify at
trial. Griffin v. California , 3 80 U.S. 609, 615 (1965). It encompasses both direct and indirect references to the choice not to testify. State v. Hodges , 105 Idaho 588, 592, 671 P.2d 1051, 1055 (1983); State v. McMurry , 143 Idaho 312, 314, 143 P.3d 400, 40 2 (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 ple thora of less damaging interpretations. State v. Severson , 147 Idaho 694, 719, 215 P.3d 414, 439 (2009). 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.
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 d eny guilt. McMurry , 143 Idaho at 315, 143 P.3d at 403. In McMurry , we held that the defendant’s Fifth Amendment privilege was violated by the prosecutor’s comments regarding the absence of any evidence contradicting the victim’s testimony about actions t hat allegedly occurred when only the victim

a nd the defendant were present. Id . On the other hand, a prosecutor’ s general references to uncontradicted evidence do not necessarily refer to the absence of testimony from the defendant
if witnesses other tha n the defendant could have contradicted the evidence. Id. at 314, 143 P.3d
at 402. Thus, in Hodges , our Suprem e Court held the defendant’ s privilege against
self

- incrimination was not violated when the pr osecutor 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. In addition , a prose cutor may rebut defense counsel’ s argumen t s and
defenses. McMurry , 143 Idaho at 315, 143 P.3d at 403. However, i n so doing, the line between5 a legitimate rebuttal of defense counsel’s arguments and an indirect comment on the fact that the
defendant has not taken the stand is often a very thin one. Id

. Indeed , even where prosecutorial comments refer to the absence of testimony on an issue that witnesses other than the defendant
could have contradicted
, there may necessarily be an indirect Griffin violation depending on the
number and nature of those comments. McMurry , 143 Idaho at 314

- 15, 143 P.3d at 403

- 0 4

. A s the Sixth Circuit Court of Appeals stated in Raper v. Mintzes , 706 F.2d 161, 167 n.5 (6th Cir. 1983), “ We do not suggest that any magic number will constitut e a violation of Griffin but the number of comments, along with their nature, is a key factor.” Courts uniformly condemn this prosecutorial tactic due to the difficulty of determining whether Griffin violations are constitutionally harmless. McMurry , 143 Idaho at 315, 143 P.3d at 403

. Initially, we note that four of the prosecutor’s statements

-- that the evidence was undisputed as to the date of the transaction, that the transaction occurred in Idaho, that the
location of the transaction was wi thin 1000 f eet of a school, and that the substanc e delivered was methamphetamine

- - were not the type of statements generally constitut ing impermissible references to the failure of the defendant to testify. As we stated in McMurry , 143 Idaho at 314,
143 P.3d at 402
, a prosecutor’s general references to uncontradicted evidence do es not necessarily refer to the absence of testimony from the defendant if witnesses other than the defendant could have contradicted the evidence

. Similar to the issue in Hodges, the prosecu tor’s

comment s in this case
, that it was “ undisputed” that t he substance was methamphetamine
, did not constitute an impermissible comment on Scott’s silence
, as Scott was not the only logical witness who could have disputed the expert’s testimony as to the nature of the substance. Likewise, Scott was not the only logical witness to dispute the testimony that the transaction
occurred on a certain date within the State of Idaho , which the informant and several detectives
testified to, or that it occurred wit hin 1000 feet of a school, as testified to by Detective Kevin
Horak after he personally measured the distance . For example, as to the latter point, the defendant could have introduced his own witness qualified to testify as to the distance of the point of the “ alleged” transaction and the school. Possibly m ore problematic, however, were the prosecutor’s repeated statements that the
informant ’s testimony
, that Scott was the only person in the vehicle and was the person who sold her the methamphetamine
, wa s undisputed, given that none of the officers witnessed the actual
transaction occur. However, as the State points out, when the statements are read in context
,6 there are grounds from which one could surmise the prosecutor was not intending to comment on Scott’s failure to testify
, or that the jury would necessarily interpret it as such, but rather that the prosecutor was attempting to support the informant’s testimony
, which Scott challenged as not credible given that she was given leniency in exchange for her participation in the drug buy and
her testimony at trial. T he prosecuto r attempted to support the informant’s testimony by stating
her testimony was corroborated by other evidence in the case
, inc luding the recorded phone calls
and the testimony of the law enforcement officers who conducted surveillance before, during, and after the buy ; in other words, the prosecutor was stating that the informant’s testimony was uncontradicted by the other evidence produced at trial . For example
, after defense counsel attacked the informant’s credibility in closing argument, the prosecutor stated the following in rebuttal, which included two of the statements at issue:
We do hav e to rely on [the informant] to some extent, and that’s why the police do everything they can to follow all these rules and regulations. All of the evidence is documented. They fill out all of this paperwork . . . . They do everything they can to make s ure all of this is on the up

- and

- up, and there simply is no reasonable explanation other than William Scott sold his methamphetamine to [the informant]. You heard her testimony. You saw her demeanor. You saw that she was trying to be open. She was bein g honest. She was telling you what happened, and that evidence is uncontradicted. Again, even though there was not a law enforcement officer literally standing there watching the transaction, they saw William Scott’s car going to the transaction. You hea r the tapes. They saw how quickly it happened. They see his vehicle leaving that area. They follow it to his home on Conant. They see him right after he’s gotten out of the car. That’s a very strong corroboration. You can argue that every witness has some kind of bias or some kind of motive. [The informant] was an informant. She was being compensated. Part of her agreement was that she had to promise to tell the truth. You’ll see that in the paperwork. It was an agreement that was approved by the prosecuting attorney of Minidoka County. That wasn’t just a police officer deciding to do something on a whim. They went through all of the right steps here. She was under oath. She promised to tell the truth, and there was [no] evidence to contradict that.

( E mphasis added)

. Because officers were present in the general vicinity of the transaction, this case is distinguishable from State v. Whitaker
, 152 Idaho 945, 277 P.3d 392 (Ct. App. 2012) , where we held it was error for the prosecutor to argue the testimony was “ uncontroverted” as to sexual contact and related incidents that occurred when only Whitaker and one of the victim s were present , because Whitaker was the only logical witness to rebut the testimony.7 However, w e need not resolv e the issue of whether these statements constituted plain

error because we conclude Scott has failed to satisfy the third Perry prong: he has not shown a reasonable possibility the error
, assuming it occurred, affected the outcome of the trial

. Perry , 150 Idaho 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.
Whitaker
, 152 Idaho at 952, 277 P.3d at 399

. Contrary to Scott’s contention that his conviction

was “ based almost exclusively on the testimony of one drug

- addicted, drug

- dealing police informant,” b eyond the informant’s detailed testimony that she had known Scott for years prior to the buy and he was the person who del iver ed the methamphetamine to her at the buy , the State

a lso presented evidence from several inv estigating officers corroborating the infor mant’s
identification of Scott . There was evidence presented that the vehicle seen arriving in the vicinity of the d rug deal was registered to Scott. Detective Terry Bell
, who was conducting surveillance during the transaction
, testified he saw the vehicle that was registered to Scott in the vicinity, watched as the informant pulled her vehicle behind Scott’s vehicle, and then saw both
vehicles stop together in the area the informant testified the drug transaction took place. Detective Bell also testified that after Scott’s vehicle left the area, the detective followed the
vehicle to an address on Conant where he watch ed the driver back the vehicle into a driveway
and saw who he identified as Scott walking away from the vehicle into the house. Detective Horak testified he had recorded calls between the informant and Scott during which they set up the drug buy. De tective Horak further testified he recognized Scott’s voice on the phone recordings, as well as the recording from the drug buy itself during which the informant had been wearing a wire. He also testified that approximately two weeks after the drug buy in question, he observed the vehicle seen at the scene of the buy at the Conant address and saw Scott getting into the vehicle. The officers involved in the operation also testified as to the procedures taken to ensure a legitimate drug buy occurred, includ ing searching the informant and her vehicle before and after the buy and following the informant to and from the scene of the buy to make sure she did not take any detours. Scott’s defense consisted largely of pointing ou t that none of the officers had s een the
actual transaction take place and attacking the informant’s credibility on the basis that sh e had received leniency

-- specifically, that after being convicted of possession of methamphetamine with the intent to deliver, the informant was not sentenc ed to incarceration and was allowed to go8 through a drug court program. The State countered this attack on the credibility of the informant, pointing out the informant had not gotten of f “ free” for her involvement, but had pled guilty to a felony crime, w ent through an “ intense” drug court program from which she graduated, and had remained free from drugs. After a review of all the evidence and arguments, we are conv inced beyond a reasonable
doubt that the prosecutor’s comments did not contr ibute to the jury’s verdict. The informant, whom the jury apparently found credible, testified in de tail as to the transaction, much of which was corroborated by significant other evidence
, including recordings of phone ca lls between the
informant and Sco tt setting up the buy, the recording of the transaction itself, and the testimony of several officers who saw Scott’s vehicle stop near the informant’s vehicle immediately preceding the transaction and who saw Scott near the vehicle after the transaction. By contrast, Scott offered little in the way of a convincing defense, relying largely on the jury finding the
informant not credible ; however, aside from the fact she was given a lesser sentence for her cooperation, Scott did not succeed in raising any se rious issues as to her credibility

. This is especially true where she was largely corroborated by the officers, there was evidence the undercover buy had been conducted according to established procedures, and she was a recovered drug addict who had succe ssfully completed a strenuous drug court program. Accord
Whitaker
, 152 Idaho at 952

- 53, 277 P.3d at 399

- 400 (holding that while it was error for the prosecutor to comment on Whitaker’s failure to testify by repeatedly stating the victims’ testimony was un controverted , the error was not reversible under the fundamental error standard
because
, given the amount of evidence of his guilt and the relatively weak defense mounted,
Whitaker had not proven beyond a reasonable doubt that the effect of the comments co ntributed to the jury’s verdict). Cf., McMurry , 143 Idaho at 31 6 , 143 P.3d at 40 4 (holding it could not be said the prosecutor’s impermissible comment on McMurry’s failure to testify did not contribute
to the verdict because there was strong evidence as to her self

- defense claim). Accordingly, we conclude the prosecutor’s comments did not constitute reversible error , and Scott’s judgment of conviction for delivery of a controlled substance within 1000 feet of a school is affirmed. Judge LA NSING and Judge MELANSON CONCUR.