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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 47371

STATE OF IDAHO,

Plaintiff-Respondent,

v.

KARL RICHARDSON,

Defendant-Appellant.

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Filed: November 30, 2020

Melanie Gagnepain, Clerk

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

County. Hon. Samuel Hoagland, District Judge. 

Judgment of conviction for grand theft and being a persistent violator, affirmed. 

Randall S. Barnum of Barnum Law, PLLC, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney 

General, Boise, for respondent. 

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LORELLO, Judge 

Karl Richardson appeals from his judgment of conviction for grand theft and being a 

persistent violator. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Richardson was charged with grand theft, I.C. §§ 18-2403(1) and 18-2407(1)(b), and being 

a persistent violator, I.C. § 19-2514, for taking a boat, a boat trailer, and an outboard motor. At 

trial, an officer testified he gave Richardson Miranda1 warnings during an interview. When the 

prosecutor asked the officer why he administered Miranda warnings, the officer testified he was 

 

1 See Miranda v. Arizona, 384 U.S. 436 (1996).
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planning on taking Richardson into custody at the end of the interview because Richardson had an 

outstanding arrest warrant for an unrelated matter. 

Richardson moved for a mistrial, arguing he was prejudiced by the officer’s mention of the 

unrelated arrest warrant. The district court declined to decide the motion at that time. At the 

beginning of the next day of trial, the district court denied Richardson’s motion and indicated it 

would issue a curative instruction. At the close of evidence, the district court instructed the jury 

to consider the mention of the arrest warrant only as an explanation for the officer’s actions during 

the interview and not to consider it for purposes of determining guilt. As part of the instruction, 

the district court informed the jury that the arrest warrant was for Richardson’s failure to appear 

for a minor traffic offense.

As part of the State’s case-in-chief, one of the victims testified he had received a fishing 

knife from his father and that this knife, along with a fifty-year-old tackle box, had been inside the 

boat when it was taken. In closing argument, the prosecutor related a personal story about how 

his grandfather had given him a fishing knife and how he had many memories associated with this 

knife. The prosecutor stated he thought of this whenever the victim talked about the knife the 

victim had received from his father. The prosecutor argued that the victim’s knife and tackle box, 

though trivial, were irreplaceable. Richardson did not object to this argument. 

The jury found Richardson guilty of grand theft and the persistent violator sentencing 

enhancement. Richardson moved for a new trial, again arguing that the officer’s mention of the 

arrest warrant was prejudicial. The district court denied the motion. Richardson appeals.

II.

STANDARD OF REVIEW

In criminal cases, motions for mistrial are governed by I.C.R. 29.1. A mistrial may be 

declared upon motion of the defendant when there occurs during the trial an error or legal defect 

in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the defendant 

and deprives the defendant of a fair trial. I.C.R. 29.1(a). Our standard for reviewing a district 

court’s denial of a motion for mistrial is well established:

[T]he question on appeal is not whether the trial judge reasonably exercised his 

discretion in light of circumstances existing when the mistrial motion was made. 

Rather, the question must be whether the event which precipitated the motion for 

mistrial represented reversible error when viewed in the context of the full record. 
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Thus, where a motion for mistrial has been denied in a criminal case, the “abuse of 

discretion” standard is a misnomer. The standard, more accurately stated, is one of 

reversible error. Our focus is upon the continuing impact on the trial of the incident 

that triggered the mistrial motion. The trial judge’s refusal to declare a mistrial will 

be disturbed only if that incident, viewed retrospectively, constituted reversible 

error.

State v. Urquhart, 105 Idaho 92, 95, 665 P.2d 1102, 1105 (Ct. App. 1983).

A decision on a motion for new trial is reviewed under an abuse of discretion standard. 

State v. Egersdorf, 126 Idaho 684, 687, 889 P.2d 118, 121 (Ct. App. 1995). When a trial court’s 

discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to 

determine whether the lower court: (1) correctly perceived the issue as one of discretion; (2) acted 

within the boundaries of such discretion; (3) acted consistently with any legal standards applicable 

to the specific choices before it; and (4) reached its decision by an exercise of reason. State v. 

Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018). 

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). However, when a defendant alleges that 

a constitutional error occurred at trial and the alleged error was not followed by a contemporaneous 

objection, the claim of error must be reviewed under the fundamental error doctrine. State v. 

Miller, 165 Idaho 115, 119, 443 P.3d 129, 133 (2019). 

III.

ANALYSIS

Richardson argues the district court erred in denying his motion for a mistrial and his 

motion for a new trial. Richardson also asserts the State committed prosecutorial misconduct 

during closing argument amounting to fundamental error. The State responds that the district court 

correctly denied the motion for a mistrial because there was no error and that, even if there was, 

the error was harmless. The State also contends that the district court did not err in denying 

Richardson’s motion for a new trial. Finally, the State asserts that the prosecutor did not engage 

in misconduct and that, even if part of the prosecutor’s closing argument was improper, Richardson 

has failed to meet his burden of showing fundamental error. We hold that Richardson has failed 

to show the district court erred in denying both his motion for a mistrial and his motion for a new 

trial and has failed to show fundamental error stemming from the prosecutor’s closing argument.
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A. Motion for a Mistrial

Richardson asserts the State introduced error when the officer testified about Richardson’s 

arrest warrant and that the district court erred by not promptly striking the testimony and by waiting 

until the close of evidence to issue a curative instruction. In response, the State argues that the 

officer’s testimony about the arrest warrant was admissible and, therefore, not error because it 

explained why the officer gave Richardson Miranda warnings. The State further contends that 

Richardson did not preserve his claims that the district court was required to strike the testimony 

and immediately issue a curative instruction. Finally, the State argues that any error was harmless. 

We hold that the officer’s testimony about the arrest warrant was error but, because the error was 

harmless, it does not warrant reversal.

The threshold inquiry is whether the State introduced error. State v. Shepherd, 124 Idaho 

54, 57, 855 P.2d 891, 894 (Ct. App. 1993). Evidence of a past crime 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 but may be admissible for another purpose. I.R.E. 404(b). Evidence of an 

individual’s status as a probationer or parolee is evidence of a prior crime for purposes of 

I.R.E. 404(b). State v. Jones, 167 Idaho 353, 359, 470 P.3d 1162, 1168 (2020). The State contends 

that the officer’s mention of the arrest warrant was not error because it was not offered to prove 

Richardson’s criminal propensity but, instead, to explain why the officer gave Miranda warnings. 

In support of its position, the State cites State v. Yakovac, 145 Idaho 437, 180 P.3d 476 (2008), 

which held that testimony regarding arrest warrants for a defendant was relevant to explain the 

police officers’ actions. This holding from Yakovac, however, was recently called into question 

by Jones. The two-justice lead opinion in Jones rejected the State’s assertion that Yakovac stood 

for the broad proposition that “evidence is always relevant in showing the propriety of a search 

conducted by law enforcement.” Jones, 167 Idaho at 360, 366, 470 P.3d at 1169 (Burdick, C.J., 

lead opinion). Rather, the lead opinion articulated the standard as follows: “when facts arise in a 

case that give the appearance of improper police conduct, but additional evidence exists that, if 

admitted at trial, would help demonstrate the propriety of the police conduct, such evidence may 

be relevant for that non-propensity purpose.” Jones, 167 Idaho at 363, 470 P.3d at 1172. The lead 

opinion further distinguished the relevance analysis under I.R.E. 404(b) from the res gestae

doctrine the Court rejected in State v. Kralovec, 161 Idaho 569, 388 P.3d 583 (2017). The lead 
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opinion explained that the “holding in Kralovec does not make all evidence that would fall within 

the definition of res gestae at common law inadmissible. Rather, Kralovec explains that the Idaho 

Rules of Evidence govern the admissibility of evidence, rather than common law principles.” 

Jones, 167 Idaho at 363, 470 P.3d at 1172. In other words, “[e]vidence that would have been 

considered res gestae at common law is admissible only if it meets the requirements of the Idaho 

Rules of Evidence.” Id. However, the three remaining justices in Jones issued a separate opinion, 

concluding that Yakovac was effectively overruled by the Court’s opinion in Kralovec. See Jones, 

167 Idaho at 366-67, 470 P.3d at 1175-76 (Stegner, J., concurring). 

In Jones, evidence of the defendant’s probationary status was admitted “to provide context 

for [a] search.” Id. at 360, 470 P.3d at 1169 (Burdick, C.J., lead opinion). The two-justice lead 

opinion, applying its test for relevance of such evidence under I.R.E. 404(b), determined that 

evidence of the defendant’s probationary status was relevant to explain why police officers had 

searched the defendant’s underwear--without knowing of the probationary status and the 

defendant’s waiver of his right against unreasonable searches, “the jury would be left wondering 

why the police suddenly conducted such an invasive search of [the defendant’s] person.” Jones, 

167 Idaho at 360, 470 P.3d at 1169. 

The three-justice concurrence disagreed and wrote that “nothing about the fact of probation 

is probative or material to the State’s burden of establishing the elements of the crimes with which 

[the defendant] was charged.” Id. at 366, 470 P.3d at 1175 (Stegner, J., concurring). In the 

concurrence’s view, because the “contextual justification” in Yakovac had been rejected by 

Kralovec, evidence of the defendant’s probationary status was inadmissible. Jones, 167 Idaho at 

367, 470 P.3d at 1176. 

Although the State acknowledges Jones,

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it does not advance any argument for why an 

explanation of the officer’s Miranda warnings was necessary to avoid the appearance of 

impropriety. Unlike Jones, where a search of the defendant’s underwear would seem 

unconstitutional absent some explanation, here the officer would appear to be complying with 

 

2 With respect to Jones, the State “acknowledges that a majority of the Idaho Supreme Court 

recently called Yakovac into question,” but contends that “Yakovac has not been overruled and is 

still binding precedent.”
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constitutional requirements by giving Miranda warnings. The State has failed to show that there 

was an appearance of impropriety that had to be avoided by explaining the officer’s actions. As 

such, the State has failed to satisfy the criteria articulated by the lead opinion in Jones, making the 

testimony about the arrest warrant irrelevant and inadmissible. See Jones, 167 Idaho at 360, 470 

P.3d at 1169 (Burdick, C.J., lead opinion). The State’s argument also fails under the view 

expressed by the three-justice concurrence as, under that view, evidence is irrelevant if offered

solely to explain an officer’s actions. See id. at 366, 470 P.3d at 1175 (Stegner, J., concurring). 

Applying both the lead opinion and the concurrence in Jones, the State introduced error when the 

officer testified that Richardson had an arrest warrant.

Error is not reversible unless it is prejudicial. State v. Stell, 162 Idaho 827, 830, 405 P.3d 

612, 615 (Ct. App. 2017). The Idaho Supreme Court clarified the harmless error standard for an 

objected-to, nonconstitutionally-based error in State v. Garcia, 166 Idaho 661, 462 P.3d 1125 

(2020). This standard requires weighing the probative force of the record as a whole while 

excluding the erroneous evidence and at the same time comparing it against the probative force of 

the error.3Id. at 674, 462 P.3d at 1138. The reviewing court must take into account what effect 

the error had or reasonably may have had on the jury (in the context of the total setting) and in 

relation to all else that happened, which necessarily includes the evidence presented. Kotteakos v. 

United States, 328 U.S. 750, 764 (1946).

We first consider the probative force of the error. A district court’s curative instruction, 

while not necessarily dispositive, is a factor to consider when determining the probative force of 

the error. State v. Watkins, 152 Idaho 764, 767, 274 P.3d 1279, 1282 (Ct. App. 2012). On appeal, 

we presume that the jury followed the district court’s instructions. See State v. Kilby, 130 Idaho 

 

3 We recognize that Garcia dealt with an objected-to, nonconstitutionally-based error that, 

when shown, shifts the burden to the State of demonstrating that the error is harmless beyond a 

reasonable doubt. Garcia, 166 Idaho at 663, 462 P.3d at 1137. This type of error differs 

categorically from a motion for a mistrial, where there is no burden shifting in the harmless error 

analysis. See, e.g., Urquhart, 105 Idaho at 95, 665 P.2d at 1105. However, the two share common 

roots in the harmless error standard articulated in Chapman v. California, 386 U.S. 18 (1967). See 

Garcia, 166 Idaho at 663, 462 P.3d at 1137; Urquhart, 105 Idaho at 95, 665 P.2d at 1105. As the 

Idaho Supreme Court recently noted, Chapman’s harmless error standard has been modified by 

Yates v. Evatt, 500 U.S. 391 (1991). Garcia, 166 Idaho at 664, 462 P.3d at 1138. We follow suit 

by recognizing that Yates modifies Chapman’s harmless error standard in the mistrial context.
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747, 751, 947 P.2d 420, 424 (Ct. App. 1997); State v. Hudson, 129 Idaho 478, 481, 927 P.2d 451, 

454 (Ct. App. 1996). The district court instructed the jury as follows:

During the course of the trial, you heard testimony from an officer that 

referenced an outstanding arrest warrant for [Richardson]. It involved his failure 

to appear for a minor traffic offense and is irrelevant to the matter set before you.

It was given merely to explain the officer’s actions at the time. You are not to 

consider it as evidence of guilt in this case and it should not be mentioned or 

considered in your deliberations. 

Richardson acknowledges that a jury is presumed to follow jury instructions, but argues 

the district court erred by failing to promptly issue a curative instruction.4 He asserts that the delay 

between the officer’s testimony and the curative instruction meant the jury “was allowed to view 

all evidence subsequent to [the officer’s] testimony through a lens colored by evidence that 

[Richardson] had an outstanding warrant for his arrest and that he would be taken into custody for 

that offense.”

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 The State argues that Richardson failed to preserve this argument because he did 

not make such a request but, instead, suggested that an immediate curative instruction would not 

be helpful. We agree that the argument Richardson is making on appeal is not preserved because 

the record reflects he took a different view of the propriety of a curative instruction than the one 

he is taking on appeal. See State v. Garcia-Rodriguez, 162 Idaho 271, 275, 396 P.3d 700, 704 

(2017) (stating that appellate court review is limited to the evidence, theories, and arguments that 

were presented below). Moreover, Richardson ultimately agreed to the instruction given, therefore 

inviting any claim of error related to the instruction. See State v. Atkinson, 124 Idaho 816, 819, 

 

4 Richardson also asserts the district court should have struck the officer’s testimony about 

the arrest warrant. As the State correctly notes, Richardson did not move to strike this testimony. 

While addressing Richardson’s motion for a mistrial, the prosecutor mentioned the possibility of

striking the testimony but did not make a motion to strike the testimony. Generally, issues not 

raised below may not be considered for the first time on appeal. Fodge, 121 Idaho at 195, 824 

P.2d at 126. Richardson has failed to preserve his argument that the district court erred by not 

striking the testimony.

5 Richardson faults the district court for waiting four days before ruling on his motion for a 

mistrial and giving a curative instruction. This is somewhat misleading. Richardson moved for a 

mistrial on a Friday and trial did not resume until the following Tuesday. While this was a fourday period, the district court ruled on the motion and issued a curative instruction the next trial day

after Richardson moved for a mistrial.
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864 P.2d 654, 657 (Ct. App. 1993) (explaining the doctrine of invited error applies to estop a party 

from asserting an error when his or her own conduct induces the commission of the error). 

Even considering the merits of Richardson’s contention, we do not agree that the district 

court erred by failing to give a prompt curative instruction. While some appellate decisions have 

used the word “promptly” in describing how a district court issued curative instructions, see, e.g., 

State v. Hedger, 115 Idaho 598, 601, 768 P.2d 1331, 1334 (1989), promptness is not a prerequisite 

for the presumption that a jury followed an instruction, see State v. Saenz, 167 Idaho 443, 451, 470 

P.3d 1252, 1260 (Ct. App. 2020) (holding that presumption applied even though error occurred 

after district court gave jury instruction). As such, we presume that the jury followed the district 

court’s instructions despite the delay between the error and the curative instruction.

Aside from the delay, Richardson presents no argument why the jury should not be 

presumed to have followed the district court’s instruction. As such, we presume that the jury 

disregarded the mention of Richardson’s arrest warrant except for the purpose of explaining the 

officer’s actions as the district court instructed it to do. Thus, Richardson has failed to show that 

the jury considered evidence of the arrest warrant in determining his guilt. Moreover, the probative 

force of the error was minimal because the purpose for which the evidence was admitted had little 

or no relevance to the elements of the charged crime, and there was no dispute at trial regarding 

why the officer gave Miranda warnings to Richardson.

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Next, we weigh the probative force of the entire record while excluding the error. At trial, 

two witnesses testified that they had reviewed a surveillance video that showed a vehicle entering

a parking lot; backing up to the victim’s boat, which was stored on a trailer; and driving away with 

the boat after attaching to the trailer. This vehicle had similar identifying features to a vehicle

owned by Richardson, as shown by other portions of the surveillance footage and a photograph of 

Richardson’s vehicle. Another witness testified that Richardson brought the boat to her house on 

the same day, where Richardson and an accomplice started to remove the motor from the boat. 

Richardson’s accomplice testified that Richardson took the boat. The accomplice also testified 

 

6 Richardson also asserts that the curative instruction painted him as a person who 

“historically breaks the law and fails to appear in court, even for minor offenses.” We disagree. 

By informing the jury that the warrant was for a minor traffic offense, the district court actually 

decreased the probative force of the error. 
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that he helped Richardson take the motor off of the boat to sell to another person. Finally, when 

Richardson became aware that the motor was reported as stolen, Richardson took what remained 

of the boat and trailer to the police department.

Richardson presented an alibi defense based on other witnesses’ testimony that Richardson 

had been watching some children on the morning of the theft. The jury evidently did not find that 

this defense created a reasonable doubt regarding Richardson’s guilt, and Richardson has presented 

no reason why the error--allowing the jury to consider the evidence of the arrest warrant solely as 

explaining the officer’s actions--negatively impacted his defense.

Weighing the probative value of the error against the probative value of the record as a 

whole without the error, we conclude that the error did not have a continuing effect on the trial and 

are satisfied beyond a reasonable doubt that the error did not contribute to the jury’s verdict. Thus, 

there is no reversible error relating to the admission of the improper warrant evidence that would 

entitle Richardson to a new trial.

B. Motion for a New Trial

Richardson moved for a new trial pursuant to I.C.R. 34. The basis for Richardson’s motion 

was the district court’s denial of his motion for judgment of acquittal. The district court 

characterized Richardson’s Rule 34 motion as seeking relief on the ground that the court erred in 

deciding a question of law during the course of the trial, I.C. § 19-2406(5), and denied the motion. 

On appeal, Richardson contends the district court abused its discretion by denying his 

motion for a new trial. Specifically, Richardson argues that the district court erred because, at 

trial, the district court was required to strike the officer’s testimony about the arrest warrant and 

not delay issuing a curative instruction. As discussed above, Richardson failed to preserve his 

argument that the district court was required to strike the testimony and promptness is not a 

prerequisite for curative instructions to be effective. Thus, Richardson has failed to show that the 

district court erred in denying his motion for a new trial.

C. Prosecutorial Misconduct

Richardson contends the prosecutor committed prosecutorial misconduct during closing 

argument by relating a personal story about a fishing knife from his father and by mentioning the 

victim’s irreplaceable loss of a knife and a tackle box. Richardson admits he did not object to this 

part of the prosecutor’s closing argument, but asserts the prosecutor’s statements impermissibly 
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appealed to the passions or prejudices of the jury and amounted to fundamental error. The State 

argues the prosecutor’sstatements did not impermissibly appeal to the jury’s passions or prejudices

and that, even if they did, the error does not rise to fundamental error. We hold that Richardson 

has failed to show fundamental error.

As Richardson admits, he made no contemporaneous objection to the prosecutor’s closing 

argument at trial. Where prosecutorial misconduct was not objected to during trial, this Court may 

only reverse when the misconduct constitutes fundamental error. Miller, 165 at 122, 443 P.3d at

136. In order to obtain relief under the fundamental error doctrine, the defendant must demonstrate 

three things. Id. at 119, 443 P.3d at 133. First, the defendant must show that one or more of the 

defendant’s unwaived constitutional rights were violated. Id. Second, the error must be clear and 

obvious, which means the record must demonstrate evidence of the error and evidence as to 

whether or not trial counsel made a tactical decision in failing to object. Id. Third, the defendant 

must demonstrate that the error affected the defendant’s substantial rights, meaning that the error 

identified in the first and second prongs of the test actually affected the outcome of the trial 

proceedings. Id. at 119-20, 443 P.3d at 133-34. 

In addressing the first prong of the analysis, we determine whether the statements in the 

prosecutor’s closing argument violated one of Richardson’s unwaived constitutional rights. 

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. 

While our system of criminal justice is adversarial in nature, and the prosecutor is expected to be 

diligent and leave no stone unturned, the prosecutor is nevertheless expected and required to be 

fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in reviewing 

allegations of prosecutorial misconduct we must keep in mind the realities of trial. Id. A fair trial 

is not necessarily a perfect trial. Id.
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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). A defendant’s constitutional right to a fair trial “is violated where a 

prosecutor attempts to ‘have a jury reach its decision 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.’” State v. Adamcik, 152 Idaho 445, 480, 272 P.3d 417, 452 

(2012) (quoting State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010)).

At the beginning of closing argument, the prosecutor stated that “there’s something that 

keeps coming up in this case that kind of hits home for me.” The prosecutor related how his 

grandfather had given him a fishing knife and how the knife “has all those memories and things 

that go along that don’t come with even a nicer fishing knife. And every time [the victim] talks 

about the fishing knife that was stolen that his father gave him, it makes me think of that.” The 

prosecutor continued:

Because what was stolen in this case is more than just a boat. Insurance can 

take care of a boat. But it’s all those other things that were stolen. You heard [the 

victim] testify about a tackle box with 50 years of tackle that he’s collected. And 

he says it every time he’s told that story to me too, and he said it when he testified, 

as if this is something that everybody does, you go around and collect tackle. I’ve 

never heard of somebody else doing this.

But it was important to him. It was an important memory that he created 

for himself over these years. And that was just thrown away.

You heard testimony in the interview that all those items that couldn’t be 

sold, oh, those are tossed.

The prosecutor concluded his argument by stating that “there are items, even trivial, if you think 

that the[y] were stolen from [the victim and his wife] that they can’t replace, I’m going to ask you 

to leave that in your mind for a moment.”

On appeal, the State characterizes the prosecutor’s personal story as, “at worst . . . a sappy 

story” that would not arouse the passions of the jury. But whether he succeeded in arousing the 

passions of the jury is not the correct standard--the standard under Adamcik is whether the 

prosecutor attempted to do so. See Adamcik, 152 Idaho at 480, 272 P.3d at 452. The prosecutor 

connected his personal story to the victim’s loss of sentimental items, which appears as an attempt 

to have the jury sympathize with the victim.
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The State also asserts that the prosecutor’s remarks regarding his personal story were 

ambiguous and should generally not be construed against the State. See State v. Severson, 147 

Idaho 694, 719, 215 P.3d 414, 439 (2009). However, the State has not explained how the 

prosecutor’s personal story was ambiguous or how it could have any purpose other than to appeal 

to the sympathy of the jury. Absent an ambiguity, Severson does not require the prosecutor’s 

personal story to be construed in the State’s favor.

As for the prosecutor’s statements regarding the sentimental value of the knife and tackle 

box, the State contends these statements were proper because the victim testified regarding the 

emotional value of the items. The State is correct that both sides are entitled to discuss the evidence 

presented at trial. Sheahan, 139 Idaho at 280, 77 P.3d at 969. However, a prosecutor should avoid

placing undue emphasis on irrelevant facts introduced at trial. State v. Smoot, 99 Idaho 855, 860, 

590 P.2d 1001, 1006 (1978); Phillips, 144 Idaho at 86, 156 P.3d at 587. As Richardson notes, the 

information did not charge him with theft of the knife or tackle box. Furthermore, the sentimental 

value of the items had no relevance to the charge of grand theft. See I.C. §§ 18-2403(1), 

18-2407(1)(b). By relating a personal story and bringing up the sentimental value of items 

Richardson was not charged with stealing, the prosecutor emphasized irrelevant evidence as part 

of his closing argument. However, the prosecutor’s closing argument, although improper, was not 

so inflammatory as to rise to the level of a due process violation. 

Under the second prong of the analysis, Richardson must show the record contains 

evidence of the error and evidence that his counsel did not make a tactical decision to not object 

to the error. See Miller, 165 Idaho at 119, 443 P.3d at 133. In determining whether the lack of an 

objection by trial counsel was tactical, the court begins with the strong presumption that counsel 

was competent and trial tactics were based on sound legal strategy. Saenz, 167 Idaho at 449, 470 

P.3d at 1258. An assertion on appeal that counsel did not make a strategic decision is not enough 

to overcome this presumption of competence. Id.; see also Miller, 165 Idaho at 119, 443 P.3d at 

133. Rather, there must be actual evidence in the record that demonstrates the lack of objection 

was not tactical. Saenz, 167 Idaho at 449, 470 P.3d at 1258; Miller, 165 Idaho at 119, 443 P.3d at 

133.

As evident from our analysis of the first prong, there is evidence of the error in the record. 

However, as the State notes, Richardson fails to provide any citation to the record to support his 
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contention that the lack of an objection was not tactical. Under Saenz, Richardson’s assertion that 

“there is no way that failing to object could be interpreted as a strategic decision,” standing alone, 

is not enough to satisfy this requirement because such an assertion is not evidence. Therefore, 

Richardson has not met his burden under the second prong of the fundamental error analysis.

Additionally, we note the record contains evidence that Richardson’s trial counsel made a 

tactical decision to not object to the prosecutor’s comments. One of Richardson’s defenses at trial 

was that someone else committed the theft and that Richardson did not know the boat was stolen. 

In closing argument, Richardson’s trial counsel stated:

Of course we feel sad about what happened to [the victim] and we sympathize with 

him and his family that they lost their boat and somebody stole their personal items. 

Nobody wants to go through that. But what we have to figure out today is who 

actually stole that boat.

This response indicates that Richardson’s trial counsel made a tactical decision to not

contemporaneously object to the prosecutor’s personal story or comments regarding the 

sentimental value of the knife and tackle box but, instead, responded directly by expressing a 

similar idea--sympathy for the victim--during closing argument. 

Richardson also fails to satisfy the third prong of the fundamental error analysis. At times, 

prosecutorial misconduct during closing argument can be remedied by a district court’s instruction 

to the jury that the attorneys’ arguments are not evidence. Miller, 165 Idaho at 123, 443 P.3d at

137. When assessing the impact of a remedial jury instruction “this Court presumes the jury 

followed the court’s jury instructions,” id. at 124, 443 P.3d at 138, even when the error complained 

of occurs after the jury receives its instructions from the trial court, see State v. Tupis, 112 Idaho 

767, 773, 735 P.2d 1078, 1084 (Ct. App. 1987).

The State argues that any prejudice from the prosecutor’s comments was cured by the 

district court’s instruction to the jury that arguments and statements made by counsel are not 

evidence. We presume this instruction cured the prejudice stemming from the prosecutor’s 

personal story about the knife he got from his grandfather, as there was no evidence of this story 

presented during trial. However, this instruction would not have cured the prejudice from the 

prosecutor’s comments regarding the sentimental value to the victim--as noted above, the victim 

testified to the emotional impact of the knife and tackle box being stolen. The prejudice stemmed 

not from the danger of arguments being confused with evidence, but from the prosecutor making 
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appeals to the jury’s passions based on the evidence admitted at trial. The instruction relied on by 

the State does not cure the prejudice stemming from the prosecutor’s comments on sentimental 

value.

Although the jury instruction does not completely cure the prejudice, Richardson has failed 

to show that the alleged error actually affected the outcome of the trial, which he must do to prevail 

on the third prong of the fundamental error analysis. See Miller, 165 Idaho at 120, 443 P.3d at 

134. Showing a “reasonable possibility” does not satisfy the third prong. Id. Richardson’s 

argument under the third prong is limited to the following assertion: “the outcome of the trial was 

likely affected by the prosecutor’s inflammatory language.” This argument is conclusory and cites 

an erroneous legal standard. Thus, Richardson has not met his burden on the third prong. 

Richardson has failed to show fundamental error from the prosecutor’s closing argument.

III.

CONCLUSION

Richardson has failed to show the district court erred by denying his motion for a mistrial 

and his motion for a new trial. He has also failed to show the State committed prosecutorial 

misconduct amounting to fundamental error. Consequently, his judgment of conviction is 

affirmed.

Chief Judge HUSKEY and Judge GRATTON, CONCUR.