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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45758

STATE OF IDAHO,

Plaintiff-Respondent,

v.

MELONIE DAWN SMITH,

Defendant-Appellant.

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Opinion Filed: March 3, 2020

Karel A. Lehrman, Clerk

Appeal from the District Court of the Seventh Judicial District, State of Idaho, 

Bingham County. Hon. Darren B. Simpson, District Judge. 

Judgment of conviction for murder in the first degree and destruction, alteration, 

or concealment of evidence, affirmed. 

Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Ben P. 

McGreevy, Deputy Appellate Public Defenders, Boise, for appellant. Brian R. 

Dickson argued.

Hon. Lawrence G. Wasden, Attorney General; Jeff D. Nye, Deputy Attorney 

General, Boise, for respondent. Jeff D. Nye argued.

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HUSKEY, Chief Judge

Melonie Dawn Smith appeals from her judgment of conviction for murder in the first 

degree, Idaho Code §§ 18-4001, -4002, and -4003; and destruction, alteration, or concealment of 

evidence, I.C § 18-2603. Smith asserts the district court erred in denying her motion to suppress 

evidence gathered by a warrantless search and in admitting hearsay testimony for the truth of the 

matter asserted at trial. Further, Smith argues fundamental error occurred at trial through the 

admittance of a video exhibit that included Smith’s assertions of her Fourth Amendment rights. 

Finally, Smith contends that, in the aggregate, the errors that occurred amounted to cumulative 

error. Because the warrantless search was supported by the exigency and protective sweep 

exception to the warrant requirement, the testimony at issue was used for impeachment purposes, 

and Smith did not establish fundamental or cumulative error, we affirm. 
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I.

FACTUAL AND PROCEDURAL BACKGROUND

Guy Lopez, Smith’s friend, made an in-person report at the sheriff’s office stating that 

Smith was involved in the homicide of David Davis. Lopez reported that a few hours earlier,

Smith picked him up from his home to go for a drive. Lopez stated Smith disclosed that a couple 

of days earlier, a man named Kevin shot Davis in the legs outside of Smith’s home and then 

Kevin left the scene. Lopez alleged Smith went on to disclose that Davis entered Smith’s home 

where, after attempting to help stop the bleeding, she shot Davis in the head. Lopez reported 

Smith revealed this information while soliciting his help in destroying Davis’s body and other 

evidence of the crime. Smith drove Lopez to her home and, while there, Lopez reported he 

witnessed Davis’s body wrapped in plastic, part of Davis’s skull and other bones in the wood 

burning stove, and brain matter on the walls. Further, Lopez reported he saw that considerable 

efforts had been made to clean evidence from the walls surrounding the scene. Lopez gave a 

detailed report to the officers, which included directions to Smith’s property, a map of the 

interior of the home, and descriptions of Smith’s vehicles and guns. An interviewing officer 

expressed concern that Smith would continue to destroy evidence given her reported efforts to 

burn body parts in the wood burning stove. 

Officers watched Smith’s home until the officers sent to make contact with the occupants 

of Smith’s home arrived. There were at least four vehicles in Smith’s driveway when officers 

knocked on her door. Smith answered and engaged in conversation with the officers. The

officers explained they had received a report that “something was going on” and they wanted to 

see if everything was okay. Smith responded that “everything’s fine” and, despite the officers’

concerns, no one inside needed medical attention. Smith said that her mother, Bettie Duke, was 

the only other person present in the home. Upon the officers’ further pressing, Smith revealed 

that Kevin had shot Davis in the leg in Smith’s driveway,

1 and both men had left the premises. 

A detective informed Smith he had information that indicated that Davis was dead and his body 

was inside Smith’s home; Smith denied this information. Smith repeatedly denied the officers’

requests to search her home, and she stressed they needed to get a warrant. The officers seized 

the home in anticipation of getting a search warrant and explained that since the home was 

 1 The district court’s findings of fact state that Lopez reported to the officers that Davis 

was shot in the legs, but Smith told the officers that Davis was shot in the leg. 
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seized, Smith and Duke needed to exit the home and any subsequent re-entry would be 

accompanied by an officer. Smith continued to state the officers could not enter her home 

without a warrant, and she called out for Duke. An officer proceeded to handcuff Smith. 

Officers explained the situation to Duke and when she expressed that she was too shaky 

to stand in the doorway, they accompanied her inside the home despite her oral protests. The 

officers proceeded to walk through the home with guns drawn, with one officer repeatedly

stating “Sheriff’s Office, come out.” In the laundry room, officers discovered a large black bag 

on the floor. A detective felt the end of the bag, feeling what he believed to be two feet. The 

officers removed Duke from the home, sealed the house, and procured a search warrant. 

Subsequently, the State charged Smith with murder in the first degree and destruction, alteration,

or concealment of evidence. 

Smith filed a motion to suppress all evidence obtained following the warrantless search 

of her home. The district court denied the motion, finding exigent circumstances regarding the 

preservation of evidence and the need for a protective sweep operated as exceptions to the 

warrant requirement and justified the search. Alternatively, even if the warrantless entry into 

Smith’s home was not justified by an exception to the warrant requirement, the district court 

found the evidence should not be suppressed because it would have inevitably been discovered. 

At the subsequent trial, the State sought to admit Exhibit 4, body camera footage from an 

officer that showed the initial conversation with Smith and the subsequent entry into and sweep 

of her home. Outside the presence of the jury, Smith objected to the evidence on foundational 

grounds; Smith argued the video should not be admitted as evidence unless the State laid proper 

foundation by first calling Lopez to testify. The court stated it would not direct the State on the 

order of its witnesses, but the State would need to establish foundation for the video before it 

would be admitted. 

Subsequently, the State moved for the admission of Exhibit 4 during trial and Smith, once 

again, objected:

State: [A]t this point, Your Honor, I would move for the admission of State’s 

Exhibit 4.

Court: Any objection, other than what you previously noted earlier?

Defense: Other than my previous foundational objections, I’m okay, just so the 

Court reserves that ruling. 

Court: All right. [Smith’s] previous objection that was made earlier this 

morning has been preserved. 
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This Court finds that foundation for the admission of State’s 

Exhibit 4 has been met, and, therefore, it will be admitted. 

Later, the State admitted Exhibit 7, a video that depicted the same encounter from the 

perspective of a patrol vehicle’s dash camera, without objection.2

The State called Duke to the stand who testified, among other things, that her daughter,

Kellie Leslie, and her grandson, Jeremy Leslie, picked her up from a crisis center after Smith’s 

arrest and drove her to the Boise area. Duke testified that she immediately fell asleep on the 

drive and denied that she spoke with Kellie and Jeremy about Davis’s death or indicated that 

Smith was responsible for it. 

Immediately following Duke’s testimony, the State called Kellie and Jeremy to the stand 

to testify about their memories of conversations with Duke during the drive. Smith objected to 

both lines of questioning as hearsay, and the district court overruled both objections without 

further explanation. Smith did not articulate any other basis for the objection, explain how the 

question called for hearsay, request the court to expand on its ruling, or request the court provide 

the jury a limiting instruction related to the testimony. The Leslies’ subsequent testimony 

contradicted Duke’s account of the conversations that occurred during the drive. Kellie testified 

that while driving to the Boise area, Duke spoke about the killing and disclosed that Smith 

attempted to render aid after Kevin shot Davis in the legs, but Smith subsequently shot Davis in 

the head and proceeded to wrap his body in plastic. Kellie testified that Duke “said something 

like, you know, like with an animal, that [Smith] put them out of their misery.” Jeremy testified 

that Duke did not sleep during the drive and instead spoke about Davis being killed inside

Smith’s home and Smith’s subsequent attempts to solicit help disposing of the body.

At the close of the trial, the State offered a closing argument that included the following: 

Now, if we take the defendant’s version and the defendant’s version 

today--I don’t want to tell you how to consider what she’s said, but I want to point 

out those inconsistencies that she’s had.

 2 Exhibit 7 was a video recording from a dash camera from an officer’s patrol vehicle. 

Because the patrol vehicle was parked in Smith’s driveway, the video shows only what occurred 

on Smith’s porch and driveway during the encounter. However, the video’s audio, as relayed by 

an officer’s microphone, includes both the conversation with Smith on her porch and recordings 

of the officers’ subsequent sweep. For the purpose of Smith’s arguments on appeal, only the 

conversation between Smith and the officer outside the home are relevant, which includes visual 

and audio that are duplicative of Exhibit 4. 
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When law enforcement arrived at her residence . . . she told them that 

Kevin had shot David Davis in the legs and that he had left. No one was hurt 

there. No body was there. Nothing had happened inside the residence. They just 

needed to leave and go about their business.

That’s what she wanted them to do, because she had something to hide. 

She preferred that that’s what they would do, because she had something to hide. 

She had the body of David Davis to hide, the body of David Davis that she 

had continually since she shot him in the back of the head, trying to figure out 

how she was going to get rid of it . . . .

. . . .

What else has the defendant said? We talked about her three stories. We 

talked about the story that she gave law enforcement at the door. We talked about 

the story that she provided today. We talked about the story that she provided to 

[her boyfriend].

Smith did not object to the State’s argument. 

The case was submitted to the jury. About an hour into its deliberations, the jury asked to 

review “the 1st video of the cops clearing the house.” The bailiff played Exhibit 4 for the jurors.

After approximately two and one-half hours of deliberations, the jury adjourned for the evening. 

The next morning, the jury deliberated for nearly eighty minutes before it found Smith guilty of 

murder in the first degree and destruction, alteration, or concealment of evidence. The court 

sentenced Smith to a determinate life sentence for first degree murder and five years, with four 

years determinate, for destruction, alteration, or concealment of evidence to run concurrently. 

Smith timely appeals. 

II.

ANALYSIS

On appeal, Smith alleges the district court erred in denying her motion to suppress and 

overruling Smith’s hearsay objection thereby allowing hearsay testimony to be used by the State 

for the truth of the matter asserted. Further, Smith argues fundamental error occurred at trial 

through the admittance of a video exhibit that included Smith’s refusal to consent to the search of 

her home. Finally, Smith contends the various errors during the trial amounted to cumulative 

error. 

A. The District Court Did Not Err In Denying Smith’s Motion to Suppress 

The standard of review of a suppression motion is bifurcated. When a decision on a 

motion to suppress is challenged, we accept the trial court’s findings of fact that are supported by 

substantial evidence, but we freely review the application of constitutional principles to the facts 

as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a 
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suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts, 

weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina, 

127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d 

659, 662 (Ct. App. 1999). 

1. Exigent circumstances supported the officers’ warrantless entry into Smith’s 

home

The Fourth Amendment to the United States Constitution prohibits unreasonable searches 

and seizures. Warrantless searches and seizures within a home are presumptively unreasonable 

and therefore violate the Fourth Amendment. State v. Sessions, 165 Idaho 658, 660, 450 P.3d 

306, 308 (2019). The State may overcome this presumption by demonstrating that a warrantless 

search either fell within a well-recognized exception to the warrant requirement or was otherwise 

reasonable under the circumstances. State v. Weaver, 127 Idaho 288, 290, 900 P.2d 196, 198 

(1995).

Courts have recognized exigent circumstances as an exception to the warrant 

requirement; when the demands “of the situation make the needs of law enforcement so 

compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” 

Sessions, 165 Idaho at 658, 450 P.3d at 309. Therefore, the exigent circumstances exception

inherently involves a situation where there is a compelling need for action and no time to secure 

a warrant. State v. O’Keefe, 143 Idaho 278, 283, 141 P.3d 1147, 1152 (Ct. App. 2006). 

A traditional exigency that justifies a warrantless entry arises when law enforcement 

officers need to prevent the imminent destruction of evidence. State v. Bunting, 142 Idaho 908, 

912, 136 P.3d 379, 383 (Ct. App. 2006). In order to validate a warrantless search under these 

circumstances, a court must determine that the officer’s fear of imminent destruction of evidence 

was objectively reasonable. State v. Holton, 132 Idaho 501, 504, 975 P.2d 789, 792 (1999); 

State v. Smith, 159 Idaho 865, 869, 367 P.3d 260, 264 (Ct. App. 2016). The facts known to the 

officer at the time of the warrantless entry, and the reasonable inferences drawn from those facts, 

must lead a person of reasonable caution to believe the action taken was appropriate. Smith, 159 

Idaho at 865, 367 P.3d at 264.

Although no exigency is created simply because there is probable cause to believe a 

serious crime has been committed, Welsh v. Wisconsin, 466 U.S. 740, 753 (1984), the severity of 

the offense which the officer believes to be in progress “is a factor to be given considerable 

weight when contemplating the existence and extent of exigent circumstances.” State v. Curl, 
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125 Idaho 224, 225, 869 P.2d 224, 225 (1993). Although the Idaho Supreme Court in Curl used 

the distinction between violent and non-violent offenses to analyze the severity of the crime, id., 

later the Supreme Court of the United States indicated the nature of the penalty for criminal 

conduct was a more appropriate characteristic. Illinois v. McArthur, 531 U.S. 326, 336 (2001). 

Nonetheless, the gravity of the offense remains an important factor in assessing the exigent 

circumstances exception to the warrant requirement, as “[p]reventing someone from disposing of 

or hiding a murdered corpse is clearly much more of an emergency than keeping someone from 

flushing a few ounces of marijuana or other controlled substances down a toilet.” Curl, 125 

Idaho at 225 n.1, 869 P.2d at 225 n.1. 

Here, the district court found that Lopez’s report provided a factual basis for the officers’ 

reasonable belief that evidence could be destroyed absent a warrantless search. The court found

Lopez reported, among other details, that Smith: disclosed Kevin initially shot Davis in the legs

outside of her home, confessed to later killing Davis by shooting him in the head inside her 

home, attempted to destroy evidence of the crime by burning body parts in her stove, attempted 

to destroy evidence by cleaning the walls surrounding the crime scene, planned to burn the body 

and other evidence by burning them further, and solicited assistance in these endeavors. Lopez 

stated while he was in Smith’s home he saw Davis’s body wrapped in plastic; brain matter, 

blood, and human debris throughout the residence; parts of Davis’s skull and bones in the wood 

burning stove; and that considerable efforts had been made to clean evidence from the walls. 

The district court found that after hearing Lopez’s report at the sheriff’s office, a sergeant 

discussed with other officers the concern that Smith would continue to destroy evidence. 

The district court acknowledged that a chief deputy expressed concern over “fantastic 

stories” that Lopez had told in the past, but the court ultimately concluded the officers could 

reasonably rely on Lopez’s statements. In support of that conclusion, the district court made 

factual findings addressing Lopez’s credibility. For example, the district court found Lopez gave 

highly detailed information to the officers, including writing a statement for the police, drawing a 

diagram of the inside of Smith’s home, and creating a directional map for the officers to locate 

the property. The district court also found the officers confirmed significant aspects of Lopez’s 

report prior to the warrantless entry, including that Smith confirmed Kevin shot Davis in the leg 

in her driveway a couple of days earlier. 
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Based on the number of cars in the driveway, the district court found it was reasonable 

for the officers to believe that more people than just Duke may have been inside Smith’s home at 

the time of the officers’ warrantless entry. The court found this belief would be reasonable 

because Lopez described four cars in the driveway at the time he left Smith’s home, but the 

officers noted five cars in the driveway when they arrived. The additional car, combined with 

Smith’s statement that Kevin shot Davis on the premises, provided a reasonable basis for the 

officers to believe additional people may be at the residence. 

Finally, the district court made factual findings that spoke to the gravity of the offenses 

that the officers were investigating. Murder in the first degree is punishable by a minimum of 

ten years and up to life imprisonment or death and/or a $50,000 fine and destruction, alteration, 

or concealment of evidence is punishable by up to five years in prison and/or a $10,000 fine. 

Based upon these facts, the district court determined the officers’ fear of the imminent 

destruction of evidence was reasonable and supported the warrantless entry into Smith’s home 

pursuant to the exigency exception. 

Smith does not challenge any of the district court’s factual findings. Because none of the 

district court’s factual findings are challenged on appeal, this Court will analyze whether the 

facts support a reasonable belief in the imminent destruction of evidence, justifying the 

warrantless entry into Smith’s home pursuant to the exigency exception of the warrant 

requirement. 

Smith argues the facts do not support the court’s determination that the officers’ belief of 

the imminent destruction of evidence was reasonable because any reasonable fear ceased once 

the officers detained Smith outside of her home. Smith contends the State’s assertion that Smith 

did not need to be present for evidence to be destroyed was not based upon the facts known to 

the officers upon entry--there were no signs of fire, evidence that Duke or others were part of the 

cleanup, or facts suggesting others were in the home. This Court disagrees.

Before entering Smith’s home without a warrant, the officers were investigating 

allegations of murder and destruction of the victim’s body. The officers had received a report 

that Smith had killed Davis inside her home approximately two days earlier. The report 

indicated Smith spent the days following the killing attempting to destroy evidence of the crime 

by wrapping Davis’s body in plastic, cleaning brain matter from the walls, and burning body

parts. Additionally, the officers had been told Smith planned to dispose of larger pieces of 
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evidence by burning the rest of Davis’s body and a couch outside of her home. The officers had 

reason to believe these efforts were ongoing; Lopez’s report indicated that, as recently as one 

hour before the report, Smith was actively attempting to solicit assistance to destroy evidence of 

the crime. 

The district court found it was reasonable for the officers to believe Lopez’s report was 

credible because it was highly detailed and included details that the officers were able to confirm 

once they arrived at the home and began speaking with Smith. Most notably, Smith, herself,

admitted to the officers that a violent crime occurred on Smith’s property two days prior which 

confirmed Lopez’s account of the initial incident that he said lead to the homicide: a man named 

Kevin shot Davis in the leg outside of Smith’s home two days earlier. 

Because parts of Lopez’s report were corroborated as the officers pursued further 

investigation, the details pertaining to the inherent gravity of the offenses alleged and Smith’s 

intent on destroying the evidence of the crime became more reliable. The district court found it 

was reasonable for the officers to believe Smith’s attempts to destroy evidence of the crime had 

not ended when Lopez left Smith’s residence. Given these facts, it was objectively reasonable 

for the officers to believe in the imminent destruction of evidence. 

Further, contrary to Smith’s assertions, the reasonableness of this belief did not dissipate 

once the officers detained Smith. Given the facts known to the officers prior to the warrantless 

entry, it was reasonable to believe the imminent destruction of evidence did not require Smith’s

presence within the home. Multiple pieces of evidence were in the house and in different 

locations. Pieces of that evidence could easily be destroyed. The ease of destruction, like simply 

wiping a wall, was something that could be accomplished by Duke or any other person in the 

house. 

Smith argues any continued concerns about destruction of evidence after Smith’s 

detainment was hypothetical and hypothetical concerns about destruction of evidence are 

unreasonable. For instance, Smith contends the officers’ concern about the evidence continuing 

to burn after Smith’s detainment would not be reasonable unless an officer witnessed a fire. But 

the evidence to be preserved was not just evidence that could be burned. It included evidence 

that could be wiped from walls, floors, and others parts of the scene. Courts have not held that 

personal observation of the destruction of evidence is required for the application of the exigency 

exception. Although a hypothetical fear without any factual support would not be reasonable, 
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personal observation of destruction of evidence is not required if the facts and the reasonable 

inferences drawn therefrom warrant a person of reasonable caution in the belief that the action 

taken was appropriate. Smith, 159 Idaho at 869, 367 P.3d at 264. 

Here, due to Smith’s persistent and active efforts to destroy evidence, the gravity of the 

offense being investigated, and the likelihood the efforts would continue after Smith was 

detained, the district court correctly concluded the officers reasonably believed evidence might 

be destroyed before a warrant could be obtained, thus establishing that exigent circumstances 

necessitated a warrantless entry into the house. We affirm the district court’s denial of Smith’s 

motion to suppress on this ground. 

2. The protective sweep exception supported the officers’ sweep of Smith’s 

home

The facts also support the protective sweep exception to the warrant requirement. A 

protective sweep may justify a warrantless entry into a residence where articulable facts, and the 

rational inferences from those facts, would warrant a reasonably prudent officer’s belief that the 

area to be swept harbors an individual posing a danger to those on the scene of the arrest. 

Maryland v. Buie, 494 U.S. 325, 334 (1990); see also State v. Revenaugh, 133 Idaho 774, 778, 

992 P.2d 769, 773 (1999) (holding protective sweep exception applies when an individual is 

arrested or detained outside of residence). No individual fact, including absolute proof that 

someone is inside the home, is necessary if the combination of circumstances creates a 

reasonable, articulable suspicion that someone might be in the residence who could pose a threat 

to the officers on the scene. Revenaugh, 133 Idaho at 778, 992 P.2d at 773. The sweep must be 

confined to a cursory inspection of those spaces where a person may be found and may not last 

longer than necessary to dispel the reasonable suspicion of danger. Buie, 494 U.S. at 335-36. 

At oral argument, Smith conceded that when Duke re-entered the home to sit down, the 

officers could have legally accompanied Duke inside to prevent the destruction of evidence 

pursuant to Illinois v. McArthur, 531 U.S. 326 (2001). Once inside, the officers were justified in 

their cursory sweep of the home under the protective sweep exception. The district court found 

the officers arrived at Smith’s home late at night, the home was cluttered with debris, the lights 

were off, and there were spaces large enough to hold a human body. Further, the court found 

Lopez reported the presence of multiple guns and the use of an armor-piercing bullet on the 

property. As with the report of destruction of evidence, Lopez’s report of weapons gained 

credibility when Smith admitted that a shooting had taken place. Finally, as previously 
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discussed, the officers had reasonable, articulable suspicion that others, besides Duke, may be 

present inside the home. Taken together, these facts rise to the level of reasonable, articulable 

suspicion that Smith’s home harbored an individual posing a danger to those on the scene of the 

arrest and, therefore, the cursory search of Smith’s home was valid under the protective sweep 

exception to the warrant requirement. 

Because Smith conceded at oral argument that the presence of either the exigent 

circumstance or protective sweep exception justifies the search and negates the consideration of 

the inevitable discovery doctrine, we need not engage in further analysis. 

B. The District Court Did Not Err in Overruling Smith’s Hearsay Objection Because It 

Was Not Offered for Proof of the Matter Asserted

Smith argues the district court erred in allowing the Leslies to testify about statements 

Duke made after Smith’s arrest. Smith admits the State initially introduced testimony from the 

Leslies at trial to contradict the testimony of Duke. However, Smith argues the district court 

allowed the testimony to be used for proof of Smith’s guilt by overruling Smith’s hearsay 

objection without providing a limiting instruction to the jury explaining the statements could 

only be used for Duke’s impeachment. The State responds that, pursuant to Idaho Rule of 

Evidence 105, the court had no obligation to instruct the jury on the limited purpose of the 

admitted evidence absent a request from Smith. 

Hearsay is defined as a statement, other than one made by the declarant while testifying 

at the trial or hearing, offered in evidence to prove the truth of the matter asserted. I.R.E. 801(c); 

State v. Gomez, 126 Idaho 700, 704, 889 P.2d 729, 733 (Ct. App. 1994). Hearsay is inadmissible 

unless otherwise provided by an exception in the Idaho Rules of Evidence or other rules of the 

Idaho Supreme Court. I.R.E. 802. Because hearsay requires that the statement is to prove the 

truth of the matter asserted, out-of-court statements admitted to impeach someone’s credibility

are not hearsay. Herrick v. Leuzinger, 127 Idaho 293, 304, 900 P.2d 201, 212 (Ct. App. 1995). 

“When evidence which is admissible as to one party for one purpose but not admissible 

as to another party or for another purpose is admitted, the court, upon request, shall restrict the 

evidence to its proper scope and instruct the jury accordingly.” I.R.E. 105 (2017). This rule 

provides a procedural mechanism for a party to limit the scope of the evidence to impeachment 

of a witness. See State v. Osterhoudt, 155 Idaho 867, 876, 318 P.3d 636, 645 (Ct. App. 2013). 

However, by its plain language, Rule 105 requires a party to request the court to give an 

appropriate limiting instruction. State v. Moore, 131 Idaho 814, 823, 965 P.2d 174, 183 (1998). 
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It does not impose a requirement on the court to give the instruction independently of such 

request. Id.; see also Osterhoudt, 155 Idaho at 876, 318 P.3d at 645 (holding the district court 

did not err in failing to give a limiting instruction sua sponte because the court is only required to 

give a limiting instruction when a party requests such an instruction). This procedural principle 

is reflected in the official comment to Idaho Criminal Jury Instruction 318, which provides a 

template limiting instruction for the court to use in such circumstances: “The committee 

recommends that this instruction be given immediately following the witness’ testimony upon 

request made by the party opposing the impeachment. If this instruction is not requested prior to 

or immediately after the testimony, the trial court does not err in failing to give it.” I.C.J.I. 318 

(citing State v. Vaughn, 124 Idaho 576, 861 P.2d 1241 (Ct. App. 1993)). 

Smith relies on this Court’s decision in State v. Gerardo, 147 Idaho 22, 205 P.3d 671 (Ct. 

App. 2009) for the proposition that a trial court must identify that evidence is being admitted for 

a limited purpose in order to put the parties on notice that a limiting instruction may be 

requested. In Gerardo, the trial court overruled the defendant’s hearsay objection raised during a 

motion in limine, erroneously finding the statement constituted a non-hearsay admission of a 

party opponent. Id. at 25, 205 P.3d at 674. Gerardo appealed, arguing the statement constituted

inadmissible hearsay. Id. On appeal, instead of maintaining the trial court did not err in finding 

the statement at issue was a non-hearsay admission of a party opponent, the State argued it was 

non-hearsay because it was not offered for proof of the matter asserted. Id. This Court held that 

because the trial court did not admit the evidence for the limited purpose alleged by the State on 

appeal, Gerardo was not alerted to the opportunity to request a limiting instruction informing the 

jury that the statement could not be used as proof of the matter asserted. Id. 

Here, however, the context of the Leslies’ testimony clearly indicates the State wished to 

use the testimony to impeach Duke’s credibility. Immediately following Duke’s testimony 

denying having any substantive conversations with the Leslies during the drive back to the Boise 

area, the State called the Leslies as witnesses and tailored its questions to draw contrast to 

Duke’s contentions. In fact, on appeal Smith admits the State offered the Leslies’ testimony to 

contradict Duke’s assertions that she never spoke to the Leslies about Smith’s involvement in 

Davis’s death. Therefore, unlike Gerardo, Smith had notice of the purpose for which the State 

was seeking to admit the evidence during trial. 
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Further, Smith does not provide argument that the district court did not understand that 

the purpose of the evidence was to impeach Duke’s testimony when it overruled Smith’s 

objection. To presume error by the district court would be in contrast to I.R.E. 105 (2017), 

which indicates the court knows the proper scope of the evidence and, upon request from a party, 

will instruct the jury accordingly. Thus, Smith was required to request a limiting instruction 

from the trial court if she desired to have the court instruct the jury that the Leslies’ statements 

could only be used to impeach Duke’s credibility, not as proof of Smith’s guilt. 

C. Smith Has Not Established Fundamental Error by the Admission of Exhibit 4 

Smith argues the State committed fundamental error by admitting Exhibit 4, body camera 

footage from the officers’ initial conversation with Smith and subsequent entry into her home. 

Smith argues because the video showed Smith refusing to consent to a search of her home, it was 

an unconstitutional comment upon her assertion of her Fourth Amendment rights. 

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). In order to obtain relief 

under the fundamental error doctrine, the defendant must demonstrate three things. 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, meaning the record must demonstrate 

evidence of the error and evidence as to whether or not trial counsel made a tactical decision not

to object. Id. Third, the defendant must demonstrate that the error affected the defendant’s 

substantial rights, which means the error identified in the first and second prongs of the test 

actually affected the outcome of the trial. Id. at 119-20, 443 P.3d at 133-34. 

Fundamental error is not a right of review, it is simply a standard created and utilized by 

our appellate courts for review of unobjected to constitutional errors. State v. Briggs, 162 Idaho 

736, 739 n.2, 404 P.3d 1287, 1290 n.2 (Ct. App. 2017). Here, Smith objected to the admission of 

Exhibit 4. When a defendant offers an objection at trial, the issue is instead preserved for 

appellate review under the harmless error analysis. State v. Diaz, 163 Idaho 165, 170, 408 P.3d 

920, 925 (Ct. App. 2017). Under the harmless error analysis, the defendant must initially 

establish to the appellate court that a violation occurred, and then the State must demonstrate 
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beyond a reasonable doubt that the constitutional violation did not contribute to the jury’s 

verdict. State v. Johnson, 163 Idaho 412, 421, 414 P.3d 234, 243 (2018). In other words, the 

error is harmless if the Court finds that the result would be the same without the error. State v. 

Montgomery, 163 Idaho 40, 46, 408 P.3d 38, 44 (2017).

A party may not attempt to transform actual evidentiary objections at trial into claims of 

unobjected-to error on appeal. Diaz, 163 Idaho at 170, 408 P.3d at 925. Instead, when a party 

objects at trial but fails to provide an adequate basis for the court to exclude the evidence, the 

error is subject to a harmless error analysis. Id. This Court has held it will not consider an error 

unobjected to when a party articulates a specific basis to exclude evidence at trial, receives a 

ruling from the court, and then fails to offer a different basis on which to exclude the evidence.

Id. at 169-70, 408 P.3d at 924-25; see also Briggs, 162 Idaho at 739, 404 P.3d at 1290. 

Allowing a party to convert objections at trial to claims of unobjected-to error on appeal 

would be in contrast to the Idaho Supreme Court’s holding in Perry, as this Court articulated in 

Diaz:

The Perry opinion defined fundamental error as, [e]rror [that] goes to the 

foundation or basis of a defendant’s rights or must go to the foundation of the 

case or take from the defendant a right which was essential to his defense and 

which no court could or ought to permit him to waive. Perry, 150 Idaho at 226, 

245 P.3d at 978. Trial counsel’s inadequate evidentiary objection did not rise to 

this level and even if it did, it is more appropriately dealt with in post-conviction 

proceedings. In cases of unobjected to error, the appellate court’s authority to 

remedy that error is strictly circumscribed to cases where the error results in the 

defendant being deprived of his or her Fourteenth Amendment due process right 

to a fair trial in a fair tribunal. Id. at 224, 245 P.3d at 976. A substantial right of 

the defendant is not infringed upon just because his or her trial counsel fails to 

make an appropriate evidentiary objection. In fact, where the asserted error 

relates not to infringement upon a constitutional right, but to violation of a rule or 

statute, we hold that the ‘fundamental error’ doctrine is not invoked. Id. at 226, 

245 P.3d at 978.

Diaz, 163 Idaho at 170, 408 P.3d at 925. 

If this Court were to find that objected-to errors could be transformed to an additional 

claim of unobjected-to error based on semantics, there would no longer be a distinction between 

the two types of errors. Each evidentiary claim would give rise to two claims on appeal: arguing 

against the admission of the evidence based on the objection actually made and arguing against 

the admission of the same evidence based on additional objections that counsel could have made 

at trial but did not. This would relieve trial counsel of the responsibility to make all relevant and
15

necessary objections during trial. Further, as demonstrated by Smith’s explicit arguments on 

appeal, a party could reason counsel’s objection on evidentiary grounds at trial preserves that 

issue for appeal under the harmless error analysis and strengthens a future claim under 

fundamental error by providing evidence in the record that counsel desired to keep the evidence 

out of the trial through the use of a contemporaneous objection. 

Smith argues this Court’s determination of what is considered objected-to error for 

appellate purposes is not proper in light of the Idaho Supreme Court’s holding in State v. Easley, 

156 Idaho 214, 322 P.3d 296 (2014). In Easley, the Court was faced with a separation of powers 

claim; whether it was constitutional for a prosecutor to unilaterally veto a trial court’s decision to 

sentence a defendant to mental health court. Id. at 220, 322 P.3d at 302. Easley objected to the 

prosecutorial veto on various constitutional grounds, but the trial court declined to address her 

concerns, stating they needed to be “addressed at a higher level.” Id. On appeal, Easley asserted 

she could raise a separation of powers issue for the first time on appeal because it constituted 

fundamental error. Id. at 221, 322 P.3d at 303. The Idaho Supreme Court acknowledged Easley 

argued her claim under fundamental error, but the Court did not specifically engage in a review 

under fundamental error analysis in its decision. Instead of citing to either the fundamental error 

or harmless error standard, the Court pursued a hybrid analysis. The Court noted that Easley had

objected to the prosecutorial veto process on numerous grounds and held the veto process was 

unconstitutional, the record was clear that the court had improperly contracted away its 

sentencing authority, and the error was not harmless. Although the Court used the words 

“fundamental error,” the Court actually conducted a harmless error analysis. Id. As Easley 

concerned an objected-to error and the Court did not engage in a fundamental error analysis,

regardless of the language used, this Court finds Easley distinguishable.

3

Even if the admission of Exhibit 4 was subject to fundamental error review, Smith has 

not established any prong of the fundamental error analysis. First, Smith has not shown that the 

admission of Exhibit 4 violated one of her unwaived constitutional rights. Although it is 

 3 Additionally, this Court has previously held State v. Easley, 156 Idaho 214, 322 P.3d 296 

(2014) did not impact established precedent following the Court’s decision in State v. Perry, 150 

Idaho 209, 245 P.3d 961 (2010). State v. Moore, 158 Idaho 943, 948, 354 P.3d 505, 510 (Ct. 

App. 2015) (holding that because the defendant did not hold a constitutional right to the 

separation of powers, he could not establish a violation of a constitutional right under the first 

prong of the fundamental error analysis).
16

erroneous for a prosecutor to introduce evidence of a defendant’s assertion of her Fourth 

Amendment right as evidence of guilt or for impeachment purposes, State v. Christiansen, 144 

Idaho 463, 470, 163 P.3d 1175, 1182 (2007), Smith has not demonstrated the State introduced 

Exhibit 4 for either of these purposes. Smith directs this Court to the State’s closing argument as 

evidence that the State admitted Exhibit 4 to infer Smith’s guilt. However, in context, the 

framing of the State’s closing argument suggests the State admitted Exhibit 4 not to comment on 

Smith’s Fourth Amendment rights, but instead to demonstrate that, unlike the other witness 

involved in the shooting of Davis, Smith’s narrative of events changed over the course of the 

proceedings; she initially told the officers that Davis had left days earlier, and therefore they did 

not need to search her home, but she proceeded to change her story after the officers discovered 

his body inside: 

[Kevin] told you what he did. He told you what he did afterwards. And 

he was consistent. At no point was he not consistent about what had occurred that 

morning.

Now, if we take the defendant’s version and the defendant’s version 

today--I don’t want to tell you how to consider what she’s said, but I want to point 

out those inconsistencies that she’s had.

When law enforcement arrived at her residence . . . she told them that 

Kevin had shot David Davis in the legs and that he had left. No one was hurt 

there. No body was there. Nothing had happened inside the residence. They just 

needed to leave and go about their business.

That’s what she wanted them to do, because she had something to hide. 

She preferred that that’s what they would do, because she had something to hide. 

She had the body of David Davis to hide, the body of David Davis that she 

had continually since she shot him in the back of the head, trying to figure out 

how she was going to get rid of it. And she had continually tried to figure out 

how she was going to get help in order to accomplish that.

You heard what she told you today, but you also heard what it is she told 

[her boyfriend]. She told [her boyfriend] her mother did it. 

What else has the defendant said? We talked about her three stories. We 

talked about the story that she gave law enforcement at the door. We talked about 

the story that she provided today. We talked about the story that she provided to 

[her boyfriend].

The State does not violate Smith’s constitutional rights by admitting evidence to comment on 

Smith’s evolving narratives related to Davis’s death. 

Second, Smith has not demonstrated the error complained of is clear from the record. 

The Idaho Supreme Court has previously held an error is plain when the State makes clear 

references to a defendant’s assertion of a Fourth Amendment right. See Christiansen, 144 Idaho 
17

at 470, 163 P.3d at 1182 (holding prosecutor’s explicit questions concerning defendant’s refusal 

to consent to search constituted prosecutorial error); see also State v. Skunkcap, 157 Idaho 221, 

234-35, 335 P.3d 561, 574-75 (2014) (holding prosecutor’s direct questioning of officer about 

defendant’s repeated assertion of his right to be silent was prosecutorial error). Here, the State 

did not attempt to elicit any testimony concerning Smith’s refusal to consent to a search of her 

home and, as discussed previously, the State did not comment upon Smith’s refusal during 

closing argument. Therefore, by itself, the admission of a fourteen-minute video does not 

demonstrate evidence of clear and obvious error in the record. 

Finally, Smith has not established the admission of Exhibit 4 into evidence actually 

affected the outcome of the trial. To the extent Exhibit 4 was important to the jury’s assessment 

of Smith’s credibility, the portions of the exhibit which depict Smith asserting her Fourth 

Amendment rights were also admitted without objection through Exhibit 7. Therefore, even if 

Exhibit 4 was excluded, the jury would have been able to consider the same conversation at issue 

through Exhibit 7, and the result would have been the same even if Exhibit 4 had been excluded. 

Therefore, Smith cannot establish the third prong of the analysis. See Montgomery, 163 Idaho at 

46, 408 P.3d at 44. 

Additionally, although the jury requested to review Exhibit 4 during deliberations, 

indicating that at least one juror was interested in its contents, the request alone does not 

establish the exhibit actually affected the outcome of Smith’s trial. Exhibit 4 represents two 

events: the officers’ initial conversation with Smith on her front porch and the subsequent entry 

and sweep of her home. The record does not provide evidence that the jury was interested in the 

portion of the video containing Smith’s assertions of her Fourth Amendment rights. In fact, the 

record indicates the jury was only interested in the portion of the recording where the officers 

entered Smith’s home and conducted a sweep, as the jury specified that it “would like to see the 

1st video of the cops clearing the house.” Taken together, the record does not establish a link 

between Smith’s refusal to consent to the search as shown in Exhibit 4 and the jury’s guilty 

verdict. Therefore, Smith has not established the admittance of Exhibit 4 met any prong of the 

fundamental error analysis. 
18

D. Cumulative Error 

Smith also contends that the cumulative error doctrine applies here, necessitating a 

reversal of her conviction. Under the doctrine of cumulative error, a series of errors, harmless in 

and of themselves, may in the aggregate show the absence of a fair trial. State v. Adamcik, 152 

Idaho 445, 483, 272 P.3d 417, 455 (2012). However, a necessary predicate to the application of 

the doctrine is a finding of more than one error. Id. Smith has failed to demonstrate at least two 

errors, a necessary predicate to the application of the cumulative error doctrine. 

IV.

CONCLUSION 

The district court did not err in denying Smith’s motion to suppress because the 

warrantless search was supported by the exigency and protective sweep exceptions to the warrant 

requirement. Secondly, the district court did not err in overruling Smith’s hearsay objections 

because the State did not offer the testimony for proof of the matter asserted. Additionally, 

Smith did not establish the admission of the video evidence constituted fundamental error. 

Finally, Smith did not establish the necessary predicate for the application of the cumulative 

error doctrine. Accordingly, the district court’s judgment of conviction is affirmed. 

Judge GRATTON and Judge LORELLO CONCUR.