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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38479

STATE OF IDAHO,

Plaintiff-Respondent,

v.

LARRY DEAN CORWIN,

Defendant-Appellant.

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2012 Unpublished Opinion No. 657

Filed: October 3, 2012

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THIS IS AN UNPUBLISHED 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. Cheri C. Copsey, District Judge. 

Judgment of conviction and unified sentence of thirty years, with five years

determinate, for felony driving under the influence, with enhancement, affirmed.

Sara B. Thomas, State Appellate Public Defender; Sarah E. Tompkins, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

GRATTON, Chief Judge

Larry Dean Corwin appeals from his judgment of conviction for felony driving under the 

influence, and the district court’s finding that he was a persistent violator. For the reasons set 

forth below, we affirm. 

I.

FACTUAL AND PROCEDURAL BACKGROUND

Police stopped Corwin on suspicion of driving under the influence. Corwin performed 

three field sobriety tests, failing each one. He was arrested and later submitted to a breath test, 

which showed a blood alcohol content of .083 and .085. Following a trial, Corwin was convicted 

of felony DUI, Idaho Code §§ 18-8004, 18-8005(5) and found to be a persistent violator, I.C. 

§ 19-2514. The district court imposed a unified sentence of thirty years with ten years 

determinate, later reduced to five years determinate pursuant to Idaho Criminal Rule 35. Corwin 

timely appeals.
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II.

ANALYSIS

Corwin claims the prosecutor committed misconduct during his rebuttal to defense 

counsel’s closing statement. The State contends that Corwin failed to establish error, much less

fundamental error. 

Closing argument serves to sharpen and clarify the issues for resolution by the trier of 

fact in a criminal case. State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007). 

Its purpose is to enlighten the jury and to help the jurors remember and interpret the evidence. 

Id.; State v. Reynolds, 120 Idaho 445, 450, 816 P.2d 1002, 1007 (Ct. App. 1991). Both sides 

have traditionally been afforded considerable latitude in closing argument to the jury and are 

entitled to discuss fully, from their respective standpoints, the evidence and the inferences to be 

drawn therefrom. State v. Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969 (2003); Phillips, 144 

Idaho at 86, 156 P.3d at 587.

Closing argument should not include counsel’s personal opinions and beliefs about the 

credibility of a witness or the guilt or innocence of the accused. Phillips, 144 Idaho at 86, 156 

P.3d at 587. See also State v. Garcia, 100 Idaho 108, 110-11, 594 P.2d 146, 148-49 (1979); 

State v. Priest, 128 Idaho 6, 14, 909 P.2d 624, 632 (Ct. App. 1995); State v. Ames, 109 Idaho 

373, 376, 707 P.2d 484, 487 (Ct. App. 1985). A prosecuting attorney may express an opinion in 

argument as to the truth or falsity of testimony or the guilt of the defendant when such opinion is 

based upon the evidence, but the prosecutor should exercise caution to avoid interjecting his or 

her personal belief and should explicitly state that the opinion is based solely on inferences from 

evidence presented at trial. Phillips, 144 Idaho at 86 n.1, 156 P.3d at 587 n.1. The safer course 

is for a prosecutor to avoid the statement of opinion, as well as the disfavored phrases “I think” 

and “I believe” altogether. Id.

Appeals to emotion, passion, or prejudice of the jury through the use of inflammatory 

tactics are impermissible. Phillips, 144 Idaho at 87, 156 P.3d at 588. See also State v. 

Raudebaugh, 124 Idaho 758, 769, 864 P.2d 596, 607 (1993); State v. Pecor, 132 Idaho 359, 367, 

972 P.2d 737, 745 (Ct. App. 1998). The prosecutor’s closing argument should not include 

disparaging comments about opposing counsel. Phillips, 144 Idaho at 86, 156 P.3d at 587. See 

also Sheahan, 139 Idaho at 280, 77 P.3d at 969; State v. Brown, 131 Idaho 61, 69, 951 P.2d 

1288, 1296 (Ct. App. 1998); State v. Baruth, 107 Idaho 651, 657, 691 P.2d 1266, 1272 (Ct. App. 
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1984). Corwin did not object to the alleged misconduct at trial; therefore, he asserts fundamental 

error in order to obtain appellate review.

Generally, issues not raised below may not be considered for the first time on appeal. 

State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). 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 State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), 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) the error is clear or obvious without the need for 

reference to any additional information not contained in the appellate record; and (3) the error 

affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978.

The first element of a claim of fundamental error is that the error is constitutional. 

Corwin claims that the prosecutor’s rebuttal violated his right to due process and to a jury 

determination on the facts. Defense counsel made the following statement during closing:

Other examples of the human element, the state’s already alluded to some 

of them. During the walk and turn test, for instance, the whole issue is did Mr. 

Corwin step off the line? And, if so, how far, et cetera, but, of course, there 

wasn’t any line. That’s a really good example of the human element because it’s 

entirely possible that Mr. Corwin was walking straight from his perspective, but

not walking straight from the officer’s perspective and there’s just absolutely no 

way to determine who’s right and who’s wrong in that situation.

In response to this statement made by defense counsel, the prosecutor made this 

statement in rebuttal:

[Defense counsel] said--I think I wrote this down right--Mr. Corwin was 

walking straight from his perspective, but not from the officer’s perspective. 

Even with all of the evidence in this case, I’m glad that we’re looking at this from 

the officer’s perspective. From Mr. Corwin’s perspective, if that was a straight 

line, then we’re all in trouble because he had to--when he fell off line, which is 

exactly what we’re talking about at that point, when he stepped off line by a foot, 

he did so to stop himself from falling over. So the line from his point of view was 

crooked and careening down onto the ground. That’s--that’s not the type of line 

we want a driver to follow.
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Corwin claims that this rebuttal statement violated his right to due process and to a jury 

determination on the facts by: (1) mischaracterizing his argument; (2) impermissibly appealing

to the passion and prejudice of the jurors; and (3) impliedly arguing that the jury was required to 

defer to the officer’s perspective. As to the first point, Corwin alleges that the prosecutor’s 

statement mischaracterized his argument by implying that Corwin argued that the jurors were 

required to defer to his perspective, rather than the officer’s. The State claims that the statement 

was an express rejection of Corwin’s claim that the jury was precluded from determining whose 

perspective was correct. As to the second point, Corwin claims that the phrase, “we’re all in 

trouble,” was intended to play on the fears of the jurors if they were to acquit him. The State 

asserts that the phrase was a fair discussion of the evidence and a fair response to his argument. 

As to the third point, Corwin argues that the prosecutor improperly told the jury that they were 

required to evaluate the field sobriety test from the officer’s perspective. The State asserts that 

the officer’s testimony and perspective were the only evidence presented to the jury, therefore, 

the jury’s evaluation of the officer’s perspective was appropriate; nonetheless, the jury did not 

need to accept it as truth.

We determine that the prosecutor’s statement in rebuttal did not constitute prosecutorial 

misconduct. Even if Corwin was able to satisfy the first two prongs of fundamental error, he is 

unable to demonstrate that the potential error was not harmless. The evidence against Corwin 

was so overwhelming that the outcome of the trial could not have been reasonably attributed to 

the prosecutor’s statement. The jury was presented with the following evidence: (1) Corwin 

failed to dim the high beams on his vehicle when passing oncoming traffic; (2) he turned onto an 

uninhabited street that had no exits; (3) his eyes were bloodshot and glassy; (4) he slurred his 

speech and his movements were fumbling; (5) he smelled of alcohol; (6) he failed the horizontal 

gaze and nystagmus test; (7) he failed the walk and turn test; (8) he failed the one-leg stand test; 

(9) he admitted to failing the three field sobriety tests; (10) the officer found a bottle of vodka 

under the passenger seat; and (11) Corwin took two breath tests and recorded a blood alcohol 

level of .083 and .085. The prosecutor’s rebuttal only regarded the walk and turn test. Even if 

the rebuttal was error, the statements would not affect the outcome of the trial because

overwhelming evidence still existed for the jury to convict Corwin. Therefore, we conclude that 

the evidence before the jury was so overwhelming that the jury’s verdict could not have been 
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attributed to the statement made by the prosecutor in rebuttal. Thus, the error, if any, is 

harmless.

III.

CONCLUSION

Corwin has failed to show fundamental error. Therefore, the district court’s judgment of 

conviction is affirmed.

Judge LANSING and Judge GUTIERREZ CONCUR.