1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40098

STATE OF IDAHO , Plaintiff-Respondent ,

v. MICHAEL LYNN JOHNSON,
Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) 2014 Unpublished Opinion No. 644

Filed: August 4, 2014
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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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. Michael R. McLaughlin , District Judge.
Judgment of conviction for felony possession of a controlled substance with the intent to deliver, possession of drug paraphernalia, and possession of a controlled substance, affirmed

. Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy , Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming , Deputy Attorney General, Boise, for respondent.

________________________________________________ GUTIERREZ, Chief Judge
Micha e l Lynn Johnson appeals from his judgment of conviction after a jury found him guilty of felony possession of a controlled substance with the intent to deliver (me thamphetamine), possession of drug paraphernalia, and possession of a controlled substance (marijuana). Johnson argues that the district court erred by denying his motion for mistrial. Additionally, Johnson contends that the district court abused its dis cretion when it imposed a unified sentence of fifteen years, with three years determinate, for possession of a controlled
substance with the intent to deliver . For the reasons that follow, we affirm.2 I.
FACTS AND PROCEDURE Boise police officers executed a search warrant at a residence and arrested a male 1 and a female (the co

- defendant). Inside one of two bedroom s , officers located paraphernalia
, mail
, and other paperwork with Johnson ’ s name on it. In the residence ’ s garage, the officers found a safe. With the assistance of the fire department, the officers opened the safe and discovered a black bag, methamphetamine, a bag with marijuana, and paraphernalia inside. Also inside the safe
were various documents with Johnson ’ s name on them , includi ng a credit card, a social security card, a birth certificate, and a vehicle title. Johnson , who was not at the residence, was transported from his workplace to the residence where, following Miranda 2 warnings, he
informed an officer that the safe was his

. After Johnson appeared in response to a criminal complaint , he was bound over and charged by information with felony possession of a controlled substance with the intent to deliver (methamphetamine), possession of drug paraphernalia, and possession of a controlled substance (marijuana). Johnson and the co

- defendant ’ s trial were consolidated and the case proceeded to a joint trial. In the first trial, a mistrial was granted. At the second trial, the prosecutor presented testimony from officers and ot her law enforcement personnel and
introduced various exhibits into evidence. The co

- defendant testified, but Johnson did not. In rebuttal, the prosecutor recalled the officer supervising the search, who authenticated a copy of the recording of an intervi ew of the co

- defendant , and the prosecutor published the recording to the jury

. In the recording, the supervising officer referred to the co

- defendant invoking her right to remain silent. Shortly after the officer ’ s comment was played to the jury, counsel for the

co

- defendant interrupted the recording and brought an objection before the court, outside the presence of the jury.
Counsel for the co

- defendant asserted that a mistrial was necessary because the officer
had referred to the co

- defendant ’ s invocation of the right to remain silent in the recording.
Johnson ’ s attorney joined in the objection and motion. After a protracted discussion between the

1 The male at the residence was not a defendant in the case below, and the record contain s little information about this individual.

2 Miranda v. Arizona , 384 U.S. 436 (1966).3 district court judge, the prosecutor, and the defense attorneys, the judge permitted the prosecuto r to redact the recording and the judge announced that he would provide a jury instruction. The redacted recording was published to the jury and was made available to the jury during
deliberations , along with a jury instruction regarding a defendant ’ s rig ht to silence . The jury found Johnson guilty on all counts, and the judge imposed a unified sentence of fifteen years, with three years determinate for possession of a controlled substance with the intent to deliver. 3 Johnson appeals.
II.
ANALYSIS On ap peal, Johnson argues that the district court erred by denying Johnson ’ s motion for
mistrial. He also argues that the district court abused its discretion when it imposed a unified sentence of fifteen years, with three years determinate, for possession of a controlled substance
with the intent to deliver.
A. Motion for Mistrial In criminal cases, motions for mistrial are governed by Idaho Criminal Rule 29.1. A

“ mistrial may be declared upon motion of the defendant, when there occurs during the trial an

er

ror 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 rep resented reversible error when viewed in the context of the full record. 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 er ror. 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.3d 1102, 1105 (Ct. App. 1983).

3 The district court imposed unified, determinate sentences of sixty

- six days for the possession of drug paraphernalia and possession of a controlled substance counts. The district court also credited Johnson with sixty

- six days served.4 Johnson argues that reversible error exists because of prosecutorial misconduct. Johnson contends that the prosecutor committed misconduct by playing the recording that included a

comment on his co

- defendant ’ s post

- Miranda silence , which Johnson asserts indirectly
commented on his own silence , allowing the jury to infer Johnson ’ s guilt. Johnson avers that the State cannot show beyond a reasonable doubt that the error is harmless. The State argues that Johnson cannot vicariously challenge the evidence that related to his co

- defendant. To the extent
the statement commented on Johnson ’ s own silence indirectly, the State contends any error is harmless beyond a reasonable doubt. The S tate further ass erts that the comment on the

co

- defendant ’ s silence was fleeting, that the prosecutor did not intend to use the comment as substantive evidence against either the co

- defendant or Johnson, that the court gave a curative jury instruction, and that there was overwhelming evidence of Johnson ’ s guilt.
The Fifth Amendment to the United States Constitution , as applied through the Fourteenth Amendment, as well as a rticle I, section 13 of the Idaho Constitution, guarantee s a criminal defendant the r ight not to be compelled to testify against himself. The U nited States Supreme Court has interpreted this right also to bar a prosecutor from commenting on a
defendant ’ s invocation of that right. Griffin v. California , 380 U.S. 609, 6 14 (1965). It is well established that a prosecutor may not use evidence of post

- arrest, post

- Miranda silence for either impeachment
, Doyle v. Ohio , 426 U.S. 610, 619 (1976), or as substantive evidence of guilt in the
State ’ s case

- in

- chief
, Wainwright v. Greenfield , 474 U. S. 284, 292 (1986). Idaho has also recognized these limitations. State v. Ellington
, 151 Idaho 53 , 60 , 253 P.3d 727, 7 3 4 (2011). Prosecutors are, however, permitted to use post

- arrest silence “ to contradict a defendant who testifies to an exculpatory ve rsion of events and claims to have told the police the same version upon arrest ” because the prosecutor is using the silence to “ challenge the defendant ’ s testimony as to his behavior following arrest. ” Doyle , 426 U.S. at 619 n.11; accord State v. Dougher ty , 142 Idaho 1, 4

- 5, 121 P.3d 416, 419

- 20 (Ct. App. 2005).
Johnson ’ s assertion of prosecutorial misconduct, which was objected to at trial, is subject
to the State v. Perry , 150 Idaho 209, 245 P.3d 961 (2010), harmless error test. Ellington
, 151
Idaho at 59 , 253 P.3d at 733. When the alleged error is prosecutorial misconduct, first the defendant must demonstrate that prosecutorial misconduct occurred, and then the Court must declare a belief beyond a reasonable doubt that the misconduct did not contri bute5 to the jury ’ s verdict, in order to find that the error was harmless and not reversible.
Id. (citing Perry , 150 Idaho at 227

- 28, 245 P.3d at 979

- 80). Assuming without deciding that Johnson has demonstrated prosecutorial misconduct, we are persuaded b eyond a reasonable
doubt that the misconduct did not contribute to the jury ’ s verdict.
There is no indication from the trial testimony leading up to the comment on the

co

- defendant ’ s invocation of her right to remain silent that the jury would have associated the comment with Johnson. Instead, the published recording up to the co mment focused on the

co

- de fendant. Even if the jury could have imputed the passing reference to the co

- defendant ’ s invocation of her right to remain silent to Johnson
, the jury was given a jury instruction that reiterated that a defendant has a right to remain silent and is not compelled to testify. We presume that Johnson ’ s jury followed this instruction. State v. Joy , 155 Idaho 1, 7 , 304 P.3d 276, 282 (2013).
Addition ally, the jury had overwhelming evidence from which it could have reasonably
found Johnson ’ s guilt based on the items bearing his name found in the bedroom and in the safe

. In the bedroom that contained paraphernalia were various pieces of mail and paperw ork with
Johnson ’ s name on them. Similarly, t he garage safe not only contained methamphetamine and a bag of marijuana , but contained patently important documents exclusive to Johnson

. Johnson, according to the testimony of an officer, claimed the safe wa s his. At trial, Johnson ’ s attorney asked the supervising officer whether the contents of the safe could have belonged to someone other than Johnson, and the supervising officer said he did not believe so “ [b] ecause typically drug dealers don ’ t allow just anybody to have access to the sa fe where they keep their drugs. ” Drug dealers, based on the officer ’ s experience, “ tend not to have their drugs intermingled with a particular individual ’ s personal information, such as a social security card and other per sonal
effects. ” From all of this evidence, it was not unreasonable for the jury to infer that the contents in the safe w ere under Johnson ’ s possession. The only evidence that weighed against this inference was the co

- defendant ’ s testimony
at trial. The co

- defendant testified that the male who was in the house had placed the black bag in the safe. However, this testimony was discredited by the co

- defendant ’ s statements in the redacted recording where the co

- defendant stated tha t she did not know what was in the safe, even after the safe had been opened and the supervising officer had informed the co

- defendant of6 what the officers found in the safe. Moreover, other portions of the co

- defendant ’ s testimony at
trial were contradic ted by her previous statements in the audio recording. In short, the jury likely
discredited the co

- defendant ’ s testimony. Because of the overwhelming evidence of guilt, we are convinced that the jury would have found Johnson guilty, even if the reference to the co

- defendant ’ s invocation of her right to
remain silent was not played to the jury. Moreover, p lacing the published comment in context demonstrates that any error was harmless beyond a reasonable doubt. Accordingly, Johnson has
not shown reversib le error, and the district court did not err by denying the motion for mistrial.
B. Sentence Johnson argues the district court abused its discretion when it imposed a unified sentence of fifteen years, with three years determinate, for Johnson ’ s convicti on for possession of a controlled substance with the intent to deliver

. This crime is punishable by up to life imprisonment. I daho Code § 37

- 2732(a)(1)(A). An appellate review of a sentence is based on
an abuse of discretion standard. State v. Burdett
, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion. State v. Brown , 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A se ntence may represent such an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice , 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary “ to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case. ” State v. Toohill , 103 Idaho 565, 568, 650 P.2d 70 7, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct an independent review of the record, having regard for the nature of the offense, the character of the offender, and the protec tion of the public interest. State v. Reinke , 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When reviewing the length of a sentence, we consider the
defendant ’ s entire sentence. State v. Oliver , 144 Idaho 722, 726, 170 P.3d 387, 391 (2007). Applying these standards, and having reviewed the record in this case, we cannot say that the
district court abused its discretion.7 III.
CONCLUSION The district court did not err by denying Johnson ’ s motion for mistrial. A ny prosecutorial misconduct fro m the comment on the co

- defendant ’ s invocation of her right to
remain silent was harmless beyond a reasonable doubt. Additionally, the district court did not abuse its discretion when it imposed a unified sentence of fifteen years, with three years
determ inate, for possession of a controlled substance with the intent to deliver . Accordingly,
Johnson ’ s judgment of conviction is affirmed. Judge LANSING and Judge MELANSON CONCUR.