### IN THE COURT OF 

### APPEALS OF

### THE STATE OF 

### IDAHO

Docket 

### No.39510 

### STATE OF 

### IDAHO, Plaintiff-Respondent,



### MICHAEL PAUL ANDERSON, Defendant-Appellant. 2014 

### Unpublished Opinion 

### No.350
Filed: February 6,2014 Stephen 

### W. Kenyon, 

### Clerk THIS IS 

### AN TJNPUBLISHED 

### OPINION 

### AI\D SHALL NOT BE 

### CITED AS

### AUTHORITY

Appeal from the 

### District Court ofthe Fourth Judicial 

### District, State 

### of Idaho, 

### Ada County. Hon. Richard D. Greenwood, District Judge. Judgment

### of conviction and concurrent 

### turified sentence 

### of five years 

### with one year determinate

### for one count 

### of aggravated assault and 

### unified ten years 

### with one year determinate

### for second count 

### of aggravated assault and enhancement, affirmed.

Sara 

### B. Thomas, State 

### Appellate Public Defender; 

### Brian 

### R. Dickson, Deputy Appellate Public Defender, Boise, for appellant. 

### Kimberly E. Smith argued. 

### Hon. Lawrence 

## G. Wasden,

### Attomey General; Jessica 

## M. Lorello, Deputy 

### Attomey General, Boise, for respondent. Jessica 

### M. Lorello argued. 

### GRATTON, Judge 

### Michael Paul Anderson appeals 

### from the

### district court's judgnr.ent 

### of conviction entered upon a

### jury verdict finding 

### him guilty of two counts 

### of aggravated assault, Idaho 

### code $$ 

### lg901(b), l8-905(a), and

## a sentencing enhancement 

### for the use

## of a deadly weapon 

## in the commission 

### of afelony, 

### I.C. $ 19-2520. We 

### affirm. 

### I. FACTUAL AND 

### PROCEDURAL BACKGROUNI) Anderson was charged 

### with two counts 

### of aggravated assault based on allegations that he threatened 

### two store employees

### with a

## knife. During

### voir dire, one 

### of the potential 

### jurors, Juror 12, stated that he worked as a deputy sheriff and that he oversaw Anderson,s housing unit. Anderson moved the 

### district court 

### for a 

### mistrial based on Juror 

### l2's comments, 

### which the court

### denied. The 

### district court later dismissed 

### Juror 12

### for cause. 

### At the conclusion 

### of the

### trial, the



### jury found Anderson 

### guilty of both counts 

### of aggravated assault and aweapon enhancement 

### for

use 

### of a 

### knife in the commission 

### of the 

### crime. The district court imposed a 

### unified term 

### of 

### five years 

### with oneyear determinate for the

### first count of aggravated assault and a concunent 

### unified term 

### of ten years

### with one year determinate 

### for the second count 

### of aggravated assault and the weapon enhancement. Anderson 

### timely appeals. 

## II. ANALYSIS Anderson claims thatthe 

### district court erred 

### by denying his 

### motion 

### for a 

### mistrial based
onJuror 

### l2's comments. In 

### criminal cases, motionsfor mistrial are govemed 

### by Idaho 

### Criminal Rule 29. 1

## . A "mistrial may be declared upon motion of the defendan! when there occurs during the

### trial an error or legal defect 

### in the proceedings, 

### or conduct inside or outside the courtroom, 

### which is 

### prejudicialto the defendant and deprives the defendant 

### ofa fair

## trial." I.c.R. 29.1(a). Our standard for reviewing adistrict court's denial 

### ofa motion for mistrial is

### well established: 

### [T]he question on appeal 

### is not whether the

### trial judge reasonably exercised his discretion 

### in 

### light of circumstanc€s existing when the 

### mistrial motion was made. Rather, the question must be

### whetler the event which precipitated the 

### motion

### for mistrial represented reversible enor when viewed in the context of the

### full record. Thus,where a 

### motionfor mishial has been denied 

### in a

### criminal case,the ..abuse 

### of discretion" standard 

### is a 

### misnomer. The standard, more accurately stated, is one 

### of reversible 

### enor. our focus is upon the continuing impact on the

### trial of the incident thattriggered the 

### mistrial 

### motion. The 

### trialjudge'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, I 105 (Ct.

### App. 1983). 

### A defendant must demonstrate prejudice when alleging a

### violation of his presumption

### of innocence. state v.

### slater,l36 Idaho

### 293,301,32 p.3d 6g5, 693 

### (ct. App. 

### 2001). As part 

### ofthe presumption 

### of innocence, a

### criminal defendant 

### is not compelled

### to attend

### trial in prison or

### jail clothing as

### it could present acontinuing interference 

### with the presumption 

### of innocence. 1d ;see also Estelle 

### v. williams,425 

### u.s. 501,504 (1976) (attaching significance 

### to the 

### clothing as a constant reminder 

### to the

### jury of the defendant's 

### incarceration). This has been extended 

### to the appeaxance 

### of defendants at

### trial in handcuffs or shackles. 1d. "Many

### jurisdictions have likewise held or implied that 

### informing the

### jury that a defendant is in

### jail is improper because 

### it may raise an inference

### of 

## guilt." State 

### v. 

### Hanison, 136 

### ldaho 504, 506, 

### 37 

### p.3d 1,

### 3 (Ct.App. 2001).

### while refening

### to continued custody 

### may be error, 

## it does 

### not present as 

### high 

### of a 

### risk 

### of

prejudice as dressing 

### the defendant 

### in prison clothing because 

## it is a single 

### point

## in time statement rather than a continual reminder 

### of the defendant's presence 

### in custody. Id. at 507,37 P.3d at4. 

### A

### juror's expression 

### of his own opinion 

### of the caseduring 

### voir dire does not render the 

### juror impartial. "Ajuror is presumedto be

### impartial." state v. 

### Ellington,l5l Idaho

### 53,69,253 P.3d,727,743 

### (201t).



### [T]he Constitution presupposes 

### that a

## jury selected

### from 

### a

### fair cross 

### section 

## of the community

## is impartial, regardless

## of the 

## mix 

## of individua

### viewpoints actually represented 

## on the

## jury, so long as

## tle jurors can conscientiously and 

### properly carry 

### out their swom 

### duty

### to apply the 

### law 

### to the factsof the particular case. 

### 1d (quoting Rossv. OHahoma,487 U.S. 

### Sl, 86 (1988). 

### A response 

### to

### voir dire questioning must have a lasting impact 

### for there

### to be prejudice. state v. 

### Lrvmon, 140 Idaho 768, 771, 101 P.3d 

### 7t2, 715 

### (ct. App. 

### 2004). The purpose 

### of 

### voir 

### dire 

## is

## to ascertain 

### any knowledge 

### or biases 

## of veniremembers. 

### This process generally communicates the potential

### juror's bias 

### or knowledge 

### to the rest 

### of the

## jury. This may 

### reflect poorly on the defendant, but removing the potential 

### juror benefits the 

### defendant. rn Lalnnon, 

### in response 

### to the

### trial court's questioning, 

### a potential 

### juror stated: 

### ..well, 

## I think he's guilty already. 

### If he's 

### guilty last week, 

### he'll be

### guilty next

### week." 

### Id. at76g,101 p.3d at

### 713. The 

### potential

### juror was removed, 

### and 

### the

### trial court issued 

### a curative 

### instruction.This Court affrrmed the denial 

### of a 

### mistrial because '1here was 

### no continuing impact on the

## trial." Id. at 771, 101 

### P.3dat715. seealsoEllington, 

## l5l Idaho

### at68-70,2s3p.3dat742-44(statingthat three potential 

### jurors expressing opinions 

### of the defendant's 

### guilt was insuffrcient 

### to overcome the presumption that the

### jury was 

### impartial, where the potential

### jurors did not sit on the

### jury panel and the court instructed the impaneled

### jury to decide the case based 

### only on the evidence presented in the courtroom). 

### It is presumed that the

### jury obeys the

### trial court's insffuctions 

### to disregard statements. 

### state v. Hedger, 115 Idaho 598, 

### 601, 768 

### p.zd 1331, 1334 

### (1989). This presumption 

### cm be overcome 

### with a showing that there is an "overwhelming probability,' the

### jury cannot 

### follow the instruction and the evidence is "devastating" tothe defendant. state v.

### Hill,l4}Idaho 625, 631, 97 P.3d, 1014, 1020 (Ct. 

### App.2004) 

### (citingGreerv. Miiler,483 U.S. 

### 756,766n.8 (1987)). 

### In

### Hill, the prosecutot referred to the defendant's custody in

### jail while questioning a

### witness. The

defendant 

### objected. The

### trial court sustained the objection, deniedthe motion 

### for a 

### mistrial, and directed the

### jury to disregard the statement. This Court stated: 

### [T]he prosecutor's disclosure 

### to the

### jury that [the defendant] had been 

### in jaiJ could hardly be characterized as 

### "devastating." Given that [the defendant] wason 

### trial for a

### criminal offense, even 

### in the absence 

### of the prosecutor's question, any reasonably knowledgeable 

### juror likely would have surmised 

### that lthe defendantl had at some point been in

### jail. 

### Hill,l40Idaho at631,97 P.3dat 1020. Thus, the denial 

### ofthe mistrial was 

### affirmed. 1d 

### In the instant case,the

### district court asked the venire 

### if anyone had personal knowledge about the case and the

### following statements arose: JUROR 

# 12: I am an

### Ada County deputy

### sheriff. I,ve been 

### involved 

### in the

defendant's incarceration. So

### just letting you know. 

# COURT: Thank 

### you, [Juror

## l2]. Soyou have some personal knowledge 

### of

the case? JUROR 

# 12: I don't know anything about the

### case. I,ve just--he,s been 

### in my

housing unit 

### before. So 

### I want to put that out there. Thereafter, Anderson requested 

### a sidebar and 

### moved

### the district court

### for a mistrial because Juror 

### l2's comments informed thevenire that he had been arrested and 

### in custody. The 

### district court denied

### the motion, 

### finding that the

### jury pool was 

### not tainted because 

### the State 

### would be presenting evidence

### that Anderson was, 

### in fact, arrested. 

### Additionallv.the district court provided thevenire

## witl a curative instruction:

Ladies and Gentlemen of the Jury, you

### just heard Juror 

### No. 13 (sic) make a statement conceming his knowledge of the defendant. There 

### will be evidence 

### in this casethat the defendant was arrested and taken to

## jail. It's a 

### criminal case. 

### That is not 

### in itself evidence 

### of his 

### guilt; 

### it

# wi be 

### simply one 

### of the facts that comes out during 

### trial. And you're not 

### to use that fact as evidence 

### of

## zuilt. So that--please do not--as 

### I said,the defendant enjoys the presumption 

### of 

### iriocence, sothe mere fact that hewas arrested does not mean hewas 

### guilty 

### of anything at all, merely that someone brought a charge. On appeal, Anderson contends that the

### district court erred because 

### Juror 

### l2's comments were 

### prejudicial and should have resulted 

### in a 

### mistrial. First,Anderson arguesthe comments could have been intelpreted to indicate that hewas incarcerated at thetime of

### trial for the crimes hewas charged 

### with which 

### would create an inference 

### of guilt, and thus, be 

### prejudicial. Second, Anderson claims the comments could have been interpreted 

### to indicate that hewas incarcerated

### for adifferent offense 

### prior to his cunent charge. He asserts that this interpretation would be an

impermissible reference to a 

### prior conviction and could induce the

### jury tofind him guilty based
on 

### criminal character.l In the altemative, Anderson contends that even 

## if Jrnor 12's comments
were 

### not sufficient 

### to establish prejudice, comments made 

### by another potential 

### juror and the district court

### following the mistrial motion should be considered 

### in determinine whether the 

### iurv pool was impermissibly prejudiced. 

### We conclude 

### Anderson has 

### failed

### to demonstrate 

### error 

### in the denial 

### of his mistrial 

### motion. First, 

### Juror 12

### did not sit on the

### jury as he was excused

### for cause. second, the 

### district court provided the

### jury pool

## witl a curative 

### instruction.we presumethat the

### jury followed the district 

### court's instructions. see state v. 

### Kilby, 130 Idaho 

### 747,751,947 p.2d,420, 424 

### (ct. App. 1997); State v. Hudson, 129 Idaho 478, 481, 927 P .2d,

### 45t, 454 (Ct. 

### App. 1996). Anderson has failed 

### to demonstrate that there was an overwhelming 

### probability that the

### jury could not 

### follow the district court's instruction 

### or thatJuror 12's comments 

### were devastating

### to 

## him. Even considering both proposed interpretations 

### of Juror 12's comments, Anderson 

### is unable 

### to show 

### thatthe comments created

### a continual impact at

### trial or a "devastating"

### effect necessary to establish 

### prejudice.2 Third, evidence was presented at

### trial indicating

### tlat Anderson had been 

# ' At oral argument, Anderson contended thatthe

### district court 

### did not address the second 

### interpretation-that Juror 12's cornments infened that Anderson had been previously incarcerated 

### for adifferent 

### offense. However, had the court addressed

### tle comment as an inference 

### of a

### prior incarceration, 

### the courtwould have highlighted 

## tlut inference 

### ratler than 

### the more logical inference that Anderson was incarcerated 

### for the presently charged

### offense. The 

### district court,s instruction indicated that there 

### would be evidence presented that Anderson was arrested 

### fbr the charged 

### offense and 

### that evidence 

### was

## in fact presented 

### to the

## jury. The 

### district court's instruction informed the

### jury notto consider Anderson's incarceration 

### for the charged offense as evidence 

### of his

## guilt. Additionally, the 

### district court's decision 

### not 

### to 

### higNigit the second interpretation 

### led the

### jury away 

### from considering 

### Juror 

## l2's comments

### aJan inference that Anderson was incarcerated 

### for a 

### prior offense. The subsequent evidence 

### of incarceration 

### for the charged offense further dispelled any inference thatthe comment relatedto a past incarceration. 

# 2 Anderson makes several additional arguments 

### in an attempt to establish 

### prejudice. First, Anderson argues that a statement by the district court demonstrates that the co.,rt

# *a concemed 

### that Juror 

## l2's statements warranted a

### mistrial. 

### ln response

### to the State's request 

### to frrther question 

### Juror 12 regarding arrest procedures,the court stated, 

### "You want to educate the rest

### of the

### jury by questioning him, and 

### you're going to

### find another wayto educate 

### them. I don,t want 

### to have a 

### mistrial, and 

### I'm quite concemed that we

### might." when read 

### in context, the 

### district 

### court was 

### not stating

### that Juror 

## l2's past comments warranted 

### a mistrial, 

### but was simply concemed 

### that

### firther questioning 

### of Juror 12 

### could provide additional statements 

### that couldarrested 

### and incarcerated 

## in theAda county

# jail. Two police ofiicers testified 

### that they

responded 

### to a call regarding 

### a man threatening store employees 

### with a

## knife. The officers 

### identified Anderson as

### the subject 

### of their investigation and

### testified that they detained him, placed 

### him 

### in custody, and hansported 

### himto the

## jail. Therefore, the

### jury, through evidence presented 

### without objection, 

### knew that at some 

### point Anderson was arrested and incarcerated. 

### Thus, the

### jury's knowledge 

### during 

### voir dire that Anderson had been incarcerated cannot be characterized as "devastating" and certainly had 

### no continual 

### prejudicial impact since the

### jury

was

### privy to that 

### information during the

### trial. Accordingly, Anderson has failed 

### to demonsrate that Juror 12's comments prejudiced the

### jury. 

### As to Anderson's altemative argument, 

### he contends 

### that statements made 

### by another potential 

### juror and 

### the 

### district court compounded 

### the prejudice 

### that resulted 

### from Juror 

### l2's comments, and therefore, the district court should have declared a 

### mistrial. During 

### voir dire, but after Anderson's 

### motion

### for mistrial was denied, the state questioned Juror 32,

### who stated that she wasvery biased and had no usefor people 

### with a

### victim 

### mentality. Shefurther stated that

# if Anderson challenged the State's evidence, shewould consider that 

### to be a

### victim mentality and she

### did not 

### think that was the way the legal system was meant 

### to

### work. Juror 32 

### did not sit on 

### the

## jury and Anderson 

### did not renew 

### his motion 

### for mistrial based 

### on these comments. 

### Additionally, during 

### voir dire, the State mentioned that 

### it would call witnesses

### to the stand that were

### victims. Defense counsel objected to the characterization of the witnesses as

### victims. The district court ovemrled the objection, but informed the State that 

### "I do my bestto refer tothem as alleged 

### victims, becausethat's what they are 

### until the close 

### of the 

### evidence." Anderson 

### did not renew his motion for mistrial. 

### on appeal, 

### Andenon claims that 

### Juror 32's comments regarding 

### the legal system and whether or not he should beallowed to assert his innocence prejudiced 

### thejury pool to the extent



### have necessitated 

### a 

## mistrial. Second, 

### Anderson argues 

### that 

### the district court'sfailure to immediately remove 

### Juror 12

### for cause 

### may have indicated 

### to other potential 

### jurors that the comments were not problematic, thereby inducing them

### to refuse 

### to speak up conceming 

### their 

### biases. This argument 

### is purely 

### speculative. Third, Anderson 

### claims 

### thafthe 

### district coun should have declared a 

### mistrial because Juror 

### l2's comments occurred early 

### in the proceedings. He provides no authority to support this claim.that the 

### prior motionfor mistrial should have been 

### granted.r Further, he claims thatthe

### district

court's statements regarding 

### referringto victims as alleged 

### victims 

### until the close

### of evidence 

### naturally 

### implied thatthe district court believedthat, 

### by the close

### of evidence, 

### the alleged 

### victimswould be proven to be actual 

### victims of the defendant. Therefore, Anderson claims that the 

### district court's statement implied that hewould be shown 

### to be

### guilty atthe end

### of the

### trial. Thus, he contends that the prejudice that resulted from the statements 

### of Juror 32 and the 

### district court, combined 

### with Juror 

### l2's comments, tainted the

### jury 

### pool. The State contends that the conments 

### by Juror 32 and the

### district court are irrelevant 

### to a determination 

### of whether 

### or not Juror 

### l2's comments established prejudicefor the purpose

### of declaring a mistrial and, moreover, do not establish a continuing prejudicial impact. 

### As discussed above,

### when considering 

### a motion 

### for a mistrial, 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. urquhart,105 Idaho 

### at95,665 

### p.3dat 1105. Anderson interprets this to mean 

### tha! on appeal, this Court should consider all potentially prejudicial errors 

### in the 

## "full record" 

### to determine 

### whether

### a mistrial should have been 

### granted.a Anderson misconstrues our 

### standard. When the

### district court 

### is presented

### with a 

### motion 

### for mistrial, the 

### district court considers the record as

### it existed at thetime the motion was 

### made. 

### on appeal,this 

### court considers

### the "event 

### which precipitated 

### the motion" and determines

# if the event constituted reversible 

### enor. We consider the continuing impact the event had on the

### trial. butwe 

### do not aggregate 

### all alleged errors occurring thereafter 

### on the record 

### that are unrelated

### to the precipitating 

### event. The comments made 

### by Juror 

### 32 and the 

### district court, 

### which 

### in no way resulted

### from or related 

### to the comments made 

### by Juror 12,

### which were 

### not the subject 

### of a renewed 

### motion, have 

### not been shown

### to have rendered a tainted 

### jury, or that the 

### motion 

### for 

# 3 Additionally, Anderson claims that since Juror 32 was not excused for cause, 

### it conveyed 

### to other members 

### of the

### jury pool that Juror 

### 32's biaswas acceptable andthat the remaining 

### jwors did not needto bring up any similar biases. This assertion is, again, speculative. 

# a Anderson points 

## to State 

### v. 

### Field, l44ldaho 559, 571, 165

### p.3d 273,285 (2007), 

### for support. In Field, the Idaho Supreme Coun, based on the cumulative error doctrine, determined th,at 

### the combination 

## of improperly-joined offenses, 

### admission

## of out-of-court statements, admission 

### of bad-acts testimony, and prosecutorial misconduct constituted reversible cumulative 

### error. However, Anderson is not arguing on appeal thatthe cumulative enor doctrine applies.

### mistrial should have been 

### granted. To the extent that Anderson 

### is claiming the district court

should have sua sponte declared a 

### mistrial based on those comments, 

### we refuse

### to address the issue as legal authority and argument is lacking. 

## TL CONCLUSION Anderson has 

### failed 

### to demonstrate reversible 

### error. Accordingly, the 

### district court's judgment of conviction is affirmed. Chief Judge GUTIERREZ and Judge 

### LANSING CONCUR.