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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 43688

STATE OF IDAHO,

Plaintiff-Respondent,

v.

ANDREW SCOTT GOMEZ,

Defendant-Appellant.

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2017 Unpublished Opinion No. 460

Filed: May 9, 2017

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Deborah A. Bail, District Judge. 

Judgment of conviction for possession of a controlled substance, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford, 

Deputy Appellate Public Defender, Boise, for appellant. Kimberly A. Coster 

argued.

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy 

Attorney General, Boise, for respondent. Russell J. Spencer argued.

________________________________________________

GUTIERREZ, Judge

Andrew Scott Gomez appeals from his judgment of conviction after a jury found him 

guilty of possession of a controlled substance and possession of drug paraphernalia. Gomez 

makes three arguments on appeal. First, he contends the district court erred in admitting 

evidence of marijuana contained in a backpack found in the vehicle. Second, he argues the 

district court erred by failing to give a unanimity instruction for the possession of 

methamphetamine charge. Last, Gomez argues the State did not present sufficient evidence to 

prove its theory of constructive possession of methamphetamine. For the reasons set forth 

below, we affirm.
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I.

FACTUAL AND PROCEDURAL BACKGROUND

At 2:30 a.m., officers observed a vehicle parked in a darkened and secluded portion of a 

commercial parking lot. As one of the officers approached the vehicle, he noticed two 

individuals inside--Gomez sat in the driver’s seat, and a woman, later identified as Jennifer

Thompson, sat in the passenger seat. The officer questioned the individuals about what they 

were doing in the parked vehicle. Both individuals appeared nervous and gave inconsistent 

answers about what they were doing, where they had been, and where they were going. After 

receiving conflicting stories, the officer became suspicious and requested that dispatch send a 

drug dog to the scene. Upon arrival, the drug dog alerted positively to the vehicle, prompting the 

officers to search the vehicle for illegal substances.

The officers’ search of the vehicle revealed baggies of methamphetamine in a makeup 

bag on the passenger floor and in an eyeglass case in Thompson’s bra, a digital scale, loose 

oxycodone pills, and a backpack containing marijuana. Gomez admitted to police that he had 

agreed to transport Thompson in the vehicle in exchange for some methamphetamine. Following 

Gomez’s arrest, he also admitted that he had a pipe in his underwear and that he had smoked

methamphetamine earlier in the day. Forensic analysis later revealed that the pipe contained 

residue that tested positive as methamphetamine.

The State charged Gomez with possession of a controlled substance, Idaho Code § 37-

2732(c), and possession of drug paraphernalia, I.C. § 37-2734A. The State also charged Gomez

with a persistent violator enhancement, I.C. § 19-2514. Prior to trial, the State provided notice of 

its intent to introduce Idaho Rule of Evidence 404(b) evidence of the marijuana contained in the 

backpack found in Gomez’s truck as well as Gomez’s statements pertaining to that evidence. 

The district court ultimately concluded that the evidence was admissible, stating: 

The issue of course is possession. It is all part of the same act, same scene, and it 

is relevant and admissible. And I don’t think any prejudicial effect outweighs its 

probative value. I think it is part of the entire picture in this case. It is relevant to 

the issues brought before the jury.

The case proceeded to trial. During both opening and closing statements, the State 

argued that the jury could convict Gomez of possession based on three separate theories: 

(1) Gomez’s admission that he smoked methamphetamine earlier in the day; (2) Gomez’s 
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conduct of transporting Thompson and her drugs in exchange for a portion of those drugs; or 

(3) Gomez’s actual possession of a pipe containing methamphetamine residue. 

The jury found Gomez guilty of both possession of a controlled substance and possession 

of paraphernalia, with a persistent violator enhancement. The district court sentenced Gomez to 

a unified term of ten years, with two years determinate, on the possession of a controlled 

substance charge and a concurrent sentence of six months on the possession of paraphernalia 

charge. Gomez filed a motion for reconsideration, which the district court denied. Gomez now 

timely appeals his judgment of conviction on the possession of a controlled substance charge.

II.

ANALYSIS

Gomez raises three issues on appeal. We first address Gomez’s argument that the district 

court erred in admitting evidence of the marijuana contained in the backpack. We next address 

whether the court committed fundamental error by failing to give a unanimity instruction to the 

jury that would have required the jury to identify the specific act of possession upon which it 

based its verdict. Finally, we consider Gomez’s argument that the State did not present sufficient 

evidence to prove beyond a reasonable doubt that Gomez had constructive possession of 

Thompson’s methamphetamine. 

A. Evidence of Marijuana in Backpack

We first turn to Gomez’s argument that the district court erred when it admitted evidence 

of marijuana contained in the backpack discovered in the trunk of the vehicle. Gomez challenges 

the court’s determination of admissibility pursuant to Idaho Rule of Evidence 404(b). He argues 

the evidence was improper character evidence relevant for no purpose other than to show 

criminal propensity. When a trial court’s admission of evidence pursuant to I.R.E. 404(b) is 

challenged on appeal, this Court applies a two-part standard in reviewing claims of error. State 

v. Ehrlick, 158 Idaho 900, 913, 354 P.3d 462, 475 (2015). First, we freely review whether the 

evidence is relevant to an issue other than the defendant’s character or criminal propensity. Id. 

Second, we review the district court’s balancing of the probative value and prejudicial danger 

pursuant to I.R.E. 403 for an abuse of discretion. Ehrlick, 158 Idaho at 913, 354 P.3d at 475.

As a preliminary matter, the State contends Gomez has failed to challenge the basis 

actually relied upon by the district court. The State suggests the district court admitted the 

evidence pursuant to the doctrine of res gestae, not pursuant to I.R.E. 404(b). Thus, the State 
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argues Gomez has not met his burden of demonstrating error. However, not only did the State 

present the evidence as a Rule 404(b) issue below, but the district court’s reasoning reflects its 

consideration of the evidence pursuant to Rule 404(b). As required under Rule 404(b), the court 

considered the relevancy of the evidence and balanced the probative value against the prejudicial 

effect. Moreover, the State’s reliance on admissibility pursuant to the res gestae doctrine 

conflicts with existing precedent. 

The Idaho Supreme Court recently held that the doctrine of res gestae may no longer be 

relied upon in lieu of determining conformance with the Idaho Rules of Evidence. See State v. 

Kralovec, ___ Idaho ___, ___, 388 P.3d 583, 588 (2017) (holding that “evidence previously 

considered admissible as res gestae is only admissible if it meets the criteria established by the 

Idaho Rules of Evidence”). Thus, even if we were to assume that the court admitted the 

evidence pursuant to res gestae, we must still review whether the evidence was relevant to an 

issue other than to show criminal propensity, as required by Rule 404(b). 

Idaho Rule of Evidence 404(b) provides as follows: 

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). Of course, evidence of another 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. See State v. Pepcorn, 152 Idaho 678, 688-89, 273 P.3d 1271, 1281-82 

(2012). 

In this case, we disagree with the court’s determination that the evidence was relevant for 

a purpose other than to show criminal propensity. First, the State did not rely on the marijuana 

contained in the backpack to support charging Gomez with possession of methamphetamine or 

paraphernalia. Second, during trial, the State’s theory of Gomez’s constructive possession of 

Thompson’s methamphetamine was premised upon their joint arrangement that Gomez would 
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transport Thompson in exchange for methamphetamine. In establishing the facts of this 

arrangement, the State presented evidence that Gomez drove Thompson to a fast-food restaurant 

to pick up some of her belongings--one of those items being a backpack that she put into the 

trunk of Gomez’s vehicle. However, the State presented no evidence at trial as to why the 

contents of the backpack were significant to the transportation arrangement between Gomez and 

Thompson. We can assign no relevancy to the fact that the backpack contained marijuana 

specifically, as opposed to clothing or other personal belongings. Finally, we cannot 

contemplate any other permissible purpose under I.R.E. 404(b) for which the evidence of 

marijuana would have been relevant. Thus, we conclude that the evidence of the marijuana was 

inadmissible as improper character evidence that was relevant only to show Gomez’s criminal 

propensity. 

The State argues that even if the court erred by admitting the evidence of marijuana, the 

error was harmless. Error is not reversible unless it is prejudicial. Idaho Criminal Rule 52; State 

v. Stoddard, 105 Idaho 169, 171, 667 P.2d 272, 274 (Ct. App. 1983). The State bears the burden 

of proving harmless error. State v. Perry, 150 Idaho 209, 225, 245 P.3d 961, 977 (2010). To 

meet this burden, the State must show beyond a reasonable doubt that the error did not affect the 

outcome of the case. Id. 

In support of its argument, the State points to the overwhelming evidence presented 

during trial indicating Gomez was guilty of possessing methamphetamine. The State maintains 

that evidence that Gomez was also transporting marijuana would not have affected the jury’s 

guilty verdict on the methamphetamine possession charge. To establish guilt on the possession 

of methamphetamine charge, the State was required to prove that Gomez knowingly possessed 

methamphetamine; i.e., that he had knowledge of the presence of the drug. See I.C. 37-2732(c); 

State v. Armstrong, 142 Idaho 62, 64, 122 P.3d 321, 323 (2005). The requisite knowledge of the 

presence of a controlled substance may be proved by direct evidence or may be inferred from the 

circumstances. State v. Blake, 133 Idaho 237, 242, 985 P.2d 117, 122 (1999).

The record indicates that after his arrest, Gomez admitted to officers that Gomez had 

smoked methamphetamine earlier in the evening. Gomez also told officers that Gomez had a 

pipe hidden in his underwear. After officers retrieved the pipe from deep within Gomez’s
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underwear, Gomez admitted that the pipe had been smoked out of previously.

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 The officer 

testified during trial to observing a white residue on the inside of the pipe, which was consistent

with methamphetamine burning. During trial, a forensic expert testified that she also was able to 

observe a small amount of residue in the pipe and, upon forensic analysis, that residue tested 

positive as being methamphetamine. 

Based upon the cumulative evidence presented by the State during trial, there was 

overwhelming evidence that Gomez had knowledge that the residue within the pipe was 

methamphetamine and that by admitting to possession of the pipe, Gomez also admitted to 

possessing the methamphetamine within the pipe. Thus, we are persuaded that because the 

evidence of guilt was so overwhelming, any error in the admission of the marijuana evidence 

was harmless beyond a reasonable doubt.

B. Unanimity Instruction

Gomez next contends the trial court erred when it failed to give a unanimity instruction 

regarding the charge of possession of methamphetamine. Whether the jury has been properly 

instructed is a question of law over which we exercise free review. State v. Severson, 147 Idaho 

694, 710, 215 P.3d 414, 430 (2009). When reviewing jury instructions, we ask whether the 

instructions as a whole, and not individually, fairly and accurately reflect applicable law. State v. 

Bowman, 124 Idaho 936, 942, 866 P.2d 193, 199 (Ct. App. 1993).

Idaho law requires trial courts to instruct the jury that it must unanimously agree on the 

defendant’s guilt. IDAHO CONST. art. I, § 7; I.C. §§ 19-2316; and 19-2317; Severson, 147 Idaho 

at 711, 215 P.3d at 431. As a general rule, however, the trial court is not required to instruct the 

jury that it must unanimously agree on the facts giving rise to the offense. State v. Adamcik, 152 

Idaho 445, 474, 272 P.3d 417, 446 (2012). Requiring unanimous factual findings would ignore 

that different jurors may be persuaded by different pieces of evidence, even though they agree 

upon the bottom line. State v. Southwick, 158 Idaho 173, 181, 345 P.3d 232, 240 (Ct. App. 

 1 Audio recording of search incident to arrest at police station, starting at 35:35:

Officer: It’s clean as a whistle, where’d you . . . .

Gomez: Cuz I haven’t had (inaudible)

Officer: Ah, you’ve smoked out of it before.

Gomez: It’s been smoked out of, yeah

Officer: Yeah

Gomez: In the past.
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2014). In cases involving alternative means of meeting statutory elements, the jury need only 

agree on the bottom line. Id.

An exception to this general rule applies where there is a genuine possibility that a 

conviction may occur as a result of different jurors concluding that the defendant committed 

different criminal acts. Id. This occurs when the State presents evidence that the defendant has 

committed several temporally discrete acts, each of which would independently support a 

conviction for the crime charged. Id. In such a situation, the trial court should instruct the jury 

that it must unanimously agree on the specific incident constituting the offense, regardless of 

whether the defendant requests such an instruction; or, alternatively, the State must elect the act 

upon which it will rely for the conviction. State v. Gain, 140 Idaho 170, 172-73, 90 P.3d 920, 

922-23 (Ct. App. 2004). Here, there was no such instruction given or election made.

Gomez contends that although the State only charged Gomez with one count of 

possession of methamphetamine, which did not specify the acts upon which the State was 

relying, the State improperly introduced three separate and distinct acts of possession during trial 

to prove its case. During opening and closing statements, the State argued that the jury could 

convict Gomez of possession based upon the following three theories: (1) his admission that he 

smoked methamphetamine earlier in the day; (2) his conduct of transporting Thompson and her 

drugs in exchange for a portion of the drugs found on her person or in her makeup bag; or 

(3) Gomez’s actual possession of a pipe containing methamphetamine residue. Then, during 

trial, the State focused its presentation of evidence on the methamphetamine found as a result of 

the officers’ investigation of the vehicle--the second and third theories. 

Gomez raises his claim of instructional error for the first time on appeal. Ordinarily, a 

party may not claim that a jury instruction was erroneous unless the party objected to the 

instruction prior to the start of jury deliberations. I.C.R. 30(b). Idaho decisional law, however, 

has long allowed appellate courts to consider a claim of error to which no objection was made 

below if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho 

559, 571, 165 P.3d 273, 285 (2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 

(1971). In Perry, the Idaho Supreme Court abandoned the definitions it had previously utilized 

to describe what may constitute fundamental error. The Perry Court held that an appellate court 

should reverse an unobjected-to error when the defendant persuades the court that the alleged 

error: (1) violates one or more of the defendant’s unwaived constitutional rights; (2) is clear or 
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obvious without the need for reference to any additional information not contained in the 

appellate record, including information about whether the failure to object was a tactical 

decision; and (3) affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978. 

Gomez maintains that any one of the three theories argued by the State could support a 

conviction for possession of methamphetamine. Thus, Gomez argues the jury should have been 

instructed that it must unanimously agree on the specific act constituting the charged offense and 

the omission of such instruction constitutes fundamental error. We focus our examination of 

error upon the factual basis for the theories of possession advanced by the State to determine 

whether they constitute multiple acts, as argued by Gomez, or alternative theories, as argued by 

the State.

1. Possession of methamphetamine found after investigation of Gomez’s vehicle

We first examine the State’s second and third theories of guilt--essentially, those that 

stem from the physical discovery of methamphetamine after officers investigated the vehicle. 

During trial, the State alleged that Gomez was in actual possession of methamphetamine based 

upon the residue found in the pipe located on Gomez’s person. The State also alleged Gomez 

had constructive possession of methamphetamine based upon the drugs found on Thompson’s 

person or in her makeup bag. The State maintains that its theories of actual possession and 

constructive possession are simply alternative factual means by which the element of possession 

could be proved, but they do not constitute multiple criminal acts of possession such to 

necessitate a unanimity instruction.

In Schad v. Arizona, 501 U.S. 624 (1991), the United States Supreme Court addressed the 

issue of whether due process requires jury unanimity on a particular theory of a charged crime. 

The Court stated: “We have never suggested that in returning general verdicts in such cases the 

jurors should be required to agree upon a single means of commission,” because “different jurors 

may be persuaded by different pieces of evidence, even when they agree upon the bottom line.” 

Id. at 631-32 (internal quotation marks and citation omitted). The Court concluded, “Plainly 

there is no general requirement that the jury reach agreement on the preliminary factual issues 

which underlie the verdict.” Id. at 632 (citation omitted). In concurrence, Justice Scalia 

observed that “it has long been the general rule that when a single crime can be committed in 

various ways, jurors need not agree upon the mode of commission.” Id. at 649 (J. Scalia, 

concurring).
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If the State’s allegations establish alternative theories of a single criminal offense, then no 

unanimity instruction was required. On the other hand, if the State’s allegations establish 

multiple offenses, then Gomez was entitled to a unanimity instruction. Determining whether the 

State’s allegations constitute a single offense or multiple offenses requires an inquiry into the 

circumstances of the conduct and consideration of the intent and objective of the actor. State v. 

Bush, 131 Idaho 22, 33-34, 951 P.2d 1249, 1260-61 (1997). To establish multiple offenses, there 

must be “a distinct union of mens rea and actus reus separated by a discrete period of time and 

circumstance from any other such similar incident” for each of the alleged acts of possession. 

Miller v. State, 135 Idaho 261, 268, 16 P.3d 937, 944 (Ct. App. 2000).

We have previously addressed whether the State’s prosecution of a single count of 

possession of a controlled substance required a unanimity instruction where the State based its

prosecution on two alternative factual grounds to establish the defendant’s knowledge and 

control of a substance. See Southwick, 158 Idaho 173, 345 P.3d 232. In Southwick, officers 

discovered methamphetamine in two locations in the defendant’s vehicle after pulling over the 

defendant and her passenger. Id. at 177, 345 P.3d at 236. The State charged the defendant with 

a single count of possession of a controlled substance based upon alternative theories that she 

possessed the substance based upon (1) her knowledge and control of methamphetamine residue 

found on a scale located between two seats in the vehicle or (2) her knowledge and control of 

methamphetamine crystals located in a baggie inside the passenger door compartment of the 

vehicle. Id. at 182, 345 P.3d at 241. On appeal, the defendant argued she was entitled to a 

unanimity instruction because the two theories constituted separate and distinct criminal acts. Id. 

We considered the fact that the substances were discovered in different locations within the 

vehicle, but deemed that fact nondispositive. Id. Ultimately, after considering all of the 

circumstances as well as the defendant’s apparent intent and objective, we held that the acts were 

not separate and distinct, but rather alternative factual theories for proving possession. Id. 

Because the jury could agree on the “bottom line” that the defendant possessed a controlled 

substance at a single time and in a single location, we concluded that a specific unanimity 

instruction was not required. Id.

The California Court of Appeals addressed a similar issue in People v. Ortiz, 145 Cal. 

Rptr. 3d 907 (Cal. Ct. App. 2012). In Ortiz, the state charged the defendant with possession of a 

firearm by a felon and carrying a firearm in a vehicle, as well as related enhancements to those 
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charges. Id. at 925. During trial, the jury heard conflicting evidence as to whether the defendant 

actually possessed a gun, actually possessed a Taser, constructively possessed someone else’s 

gun, or constructively possessed someone else’s Taser. Id. On appeal, the defendant argued that 

the trial court should have given an instruction requiring the jury to unanimously agree on the 

specific acts constituting the crimes. Id. at 926. The court disagreed, concluding the state had 

merely advanced multiple theories of a single discrete crime and not multiple acts constituting 

multiple crimes. Id. The court reasoned that even if the jurors did not unanimously agree as to 

exactly what the defendant did to commit the crime--whether he actually or constructively 

possessed a firearm--such unanimous agreement of the underlying facts was not required. Id. 

See also People v. Russo, 25 P.3d 641, 645 (Cal. 2001) (holding that “where the evidence shows 

only a single discrete crime but leaves room for disagreement as to exactly how that crime was 

committed . . . the jury need not unanimously agree on the basis or, as the cases often put it, the 

‘theory’ whereby the defendant is guilty”).

Here, we are persuaded by the State’s argument that its theories of actual possession and 

constructive possession do not constitute multiple discrete crimes or acts of possession, but 

rather multiple theories of a single discrete crime of possession. Similar to Southwick, Gomez 

was charged with a single count of possessing a controlled substance on a single date and in a 

single location. The criminal complaint did not specify the means by which that possession 

occurred. During trial, the State alleged alternative factual grounds from which the jury could 

conclude that Gomez was guilty of the single discrete crime of possession of methamphetamine

on that date and in that location. Just as it was not dispositive in Southwick that the 

methamphetamine was found in different locations within the vehicle, it is also not dispositive 

that the methamphetamine in this case was found in multiple locations inside the vehicle and on 

Gomez’s person. Examining Gomez’s apparent intent to transport Thompson in exchange for 

methamphetamine, it is reasonable to infer that his objective was possession of 

methamphetamine. Therefore, we conclude that the State’s allegations of actual and constructive 

possession constitute alternative theories upon which it relied in proving the single crime of 

possession charged. Similar to Ortiz, the jurors did not need to unanimously agree on the theory 

upon which they based their finding of guilt. Thus, Gomez was not entitled to a unanimity 

instruction based upon these acts. Gomez has not met his burden of demonstrating a 

constitutional violation on the basis of the State’s presentation of these two theories to the jury. 
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2. Admission to smoking methamphetamine earlier in the day

We next turn to the State’s theory that Gomez was guilty of possession based upon his 

admission to smoking methamphetamine earlier in the day. The State concedes that they 

improperly introduced a separate act of possession by making this assertion. The State 

acknowledges that, based on this error, Gomez was entitled to a unanimity instruction even 

though none was provided. We accept the State’s concession; the State’s error violated Gomez’s 

unwaived constitutional rights. We must, therefore, consider whether Gomez has met his burden 

under the remaining two prongs of Perry.

Regarding the second prong of Perry, Gomez carries the burden of showing that the error 

was clear or obvious from the record. To meet this standard, there must be no question as to 

whether the failure to object was a tactical decision. Perry, 150 Idaho at 228, 245 P.3d at 980. 

The State speculates that Gomez’s failure to request a specific unanimity instruction could have 

been a tactical decision. Specifically, the State suggests that even though Gomez was entitled to 

a remedy because of the State’s error, defense counsel chose to forego requesting a specific 

limiting instruction, instead opting to cure the error himself during closing arguments. The State 

points to the following statements by defense counsel:

Now, there is no question that Andrew Gomez was a user of 

methamphetamine. In fact, again as [the State] pointed out per his own admission 

they had smoked a bowl earlier in the evening. He was a user. No question.

In getting back to the elements again. Was he knowingly in possession of 

methamphetamine when he smoked that bowl? Of course. You can’t smoke a 

bowl of methamphetamine and not know you possess it.

The problem is he is not being charged with being a user. And he is not 

being charged with what he did earlier in the evening. He is being charged with 

knowingly . . . possessing methamphetamine at the time of his arrest when they 

show up at the scene at the car.

The State submits these statements show that defense counsel attempted to cure the error by 

taking the State’s “use” theory “off the table.” 

Gomez counters that such speculation is absurd, as it would rely upon numerous

unreasonable assumptions of counsel. First, defense counsel would have had to believe that he 

could dictate the acts upon which the State could rely in proving its case simply by arguing in

opposition to the State during closing argument. Second, defense counsel would have had to 

believe that the jury would ignore the court’s instruction to not consider either attorney’s 

argument as evidence. Third, defense counsel would have had to believe that the jury would 
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believe his argument over that of the State. Finally, even if counsel held any of the erroneous 

beliefs proffered by the State, Gomez contends there was no possibility that counsel could gain

any tactical advantage by failing to object. 

We have previously held that the State’s mere speculation that counsel may have made a 

tactical decision not to object is insufficient to introduce ambiguity into the record. See State v. 

Sutton, 151 Idaho 161, 166-67, 254 P.3d 62, 67-68 (Ct. App. 2011). In Sutton, the record 

contained no indication of counsel’s knowledge of a defective instruction and likewise contained 

no indication that counsel’s failure to object was intentional. Id. However, on appeal, the State 

speculated that counsel failed to object in the hope that if Sutton was convicted, the erroneous 

instruction would provide a basis for a new trial. Id. We rejected the State’s argument, 

determining that there was no indication in the record that Sutton knew more about the law than 

the State or the trial court, and there was no evidence that Sutton was attempting to sandbag the 

court. Id. Because the only indicia that Sutton’s failure to object was a tactical decision came 

from the State’s speculation, we concluded that information outside the record was not necessary 

to determine that the error was not a tactical decision. Id. at 167, 254 P.3d at 68.

Conversely, where information in the record suggests that a failure to object might have 

been a reasonable tactical decision, we will be unable to ascertain whether the error is clear or 

obvious without consideration of additional information outside the record. See State v. Grove, 

151 Idaho 483, 491, 259 P.3d 629, 637 (Ct. App. 2011). In Grove, we determined that counsel’s 

failure to object to damaging testimonial evidence could have been a viable trial strategy in a 

situation where objecting might have prompted the State to call an additional adverse witness. 

Id. We reasoned that because it would have been reasonable for defense counsel to allow the 

testimony, it was unclear from the record whether counsel’s failure to object was a tactical

decision. Id.

In this case, we are not persuaded that information outside the record is necessary to 

ascertain whether defense counsel’s failure to object was a tactical decision. First, the statements 

made by defense counsel during closing arguments do not rise to the level of implicating a 

tactical decision. Even accepting the State’s speculation that defense counsel was attempting to 

negate the State’s “use theory,” defense counsel’s argument did not suggest his recognition that a 

unanimity instruction was required; nor did his argument indicate a conscious decision to forego 

objecting. Moreover, unlike Grove, where the defendant’s failure to object could have given the 
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defendant a strategic advantage, we recognize no potential advantage to not obtaining a 

unanimity instruction in Gomez’s case. Not only could defense counsel not have cured the 

State’s error through argument, but Gomez also gained no advantage by failing to object. 

Similar to Sutton, we are left with nothing more than the State’s speculation that Gomez failed to

object to the absence of a unanimity instruction in the hopes of gaining a tactical advantage by 

curing the error himself. Such speculation is not sufficient to introduce ambiguity into the 

record. Thus, we conclude that additional information outside the record is not necessary to 

determine that Gomez’s failure to object was not a tactical decision. Gomez has satisfied the 

second prong of Perry. 

Finally, regarding the third prong of Perry, Gomez has the burden of demonstrating that 

the error affected his substantial rights. See Perry, 150 Idaho at 226, 245 P.3d at 978. This 

means he must demonstrate a reasonable probability that the error affected the outcome of the 

trial. See id. “A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Strickland v. Washington, 466 U.S. 668, 694 (1984).

In his briefing, Gomez focuses his prejudice argument on the State’s theories of actual 

possession and constructive possession. As discussed earlier, Gomez was not entitled to a 

unanimity instruction based upon these alternative theories. Thus, Gomez cannot establish

prejudice on the basis that (1) he had to defend against those two theories or (2) there was 

insufficient evidence to support one of those two theories. 

Gomez also makes a general assertion that “the jury could have reached a guilty verdict 

while disagreeing on the specific act of possession.” Gomez provides no facts suggesting the 

jury was confused or divided as to which act constituted the grounds for its conviction. Such a 

blanket statement unsupported by specific argument or evidence from the record is insufficient to 

establish a reasonable probability that he was prejudiced. See Severson, 147 Idaho at 710, 215 

P.3d at 430 (holding defendant did not show prejudice where he failed to present any facts or 

arguments to support conclusion that specific error resulted in prejudice). Moreover, existing 

precedent contradicts any notion that a court’s failure to give a unanimity instruction is 

inherently prejudicial. See State v. Montoya, 140 Idaho 160, 168, 90 P.3d 910, 918 (Ct. App. 

2004) (finding absence of unanimity instruction not prejudicial where evidence presented was 

sufficient to support finding of guilt as to any of the acts); Miller, 135 Idaho at 268, 16 P.3d at

944 (same). Therefore, we conclude that Gomez has not met his burden of showing that he was 
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prejudiced by the district court’s failure to give a unanimity instruction. Gomez has not 

established fundamental error.

C. Sufficiency of the Evidence

Finally, we turn to Gomez’s contention that the State did not present sufficient evidence 

to prove beyond a reasonable doubt that Gomez had constructive possession of Thompson’s 

methamphetamine. Based upon our analysis above, concluding that the State’s allegations of 

actual and constructive possession constitute alternative factual grounds as to how Gomez 

committed a single crime, we need not address Gomez’s contentions regarding sufficiency of the 

evidence.

In Southwick, we considered whether a reversal of a defendant’s conviction was required 

where one of the alternative factual grounds alleged by the State was not supported by sufficient 

evidence. Southwick, 158 Idaho at 182, 345 P.3d at 241. We held that where the jury is 

instructed on “alternative underlying factual means of meeting [an] element . . . one reasonable 

and the other unreasonable, we will assume, absent a contrary indication in the record, that the 

jury based its verdict on the reasonable ground that is supported by sufficient evidence.” Id. at 

183, 345 P.3d at 242. 

Here, Gomez limits his assignment of error to the insufficiency of the State’s evidence 

supporting its theory of constructive possession. However, Gomez points to no indication in the

record that the jury based its verdict exclusively on the purported unreasonable basis. 

Significantly, because Gomez does not challenge the sufficiency of evidence regarding the 

State’s theory of actual possession, we can presume that the State’s evidence was sufficient. See 

State v. McIntosh, 160 Idaho 1, 7, 368 P.3d 621, 627 (2016) (holding that “we will not search the 

record for error and that errors not assigned with particularity will not be addressed”). Thus, 

even if we are to assume insufficient evidence of constructive possession, we are justified in 

presuming that the jury based its verdict on the actual possession theory, which Gomez does not 

challenge as unreasonable or unsupported. Therefore, Gomez has failed to establish that the jury 

based its verdict on anything other than reasonable and factually supported allegations of actual 

possession. 
15

III.

CONCLUSION

The district court erred in admitting evidence of the backpack containing marijuana;

however, the error was harmless. The district court also erred by not giving a unanimity 

instruction as to the State’s theory of possession based on Gomez’s admission to smoking 

methamphetamine earlier in the day; however, Gomez has failed to show that he was prejudiced 

by the error. Finally, we need not address Gomez’s contention that there was insufficient 

evidence to support the State’s constructive possession theory, as Gomez does not challenge the 

sufficiency of evidence supporting the State’s alternative theory of actual possession. 

Accordingly we affirm Gomez’s judgment of conviction for possession of a controlled 

substance, with a persistent violator enhancement. 

Judge MELANSON and Judge HUSKEY CONCUR.