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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41970

STATE OF IDAHO,

Plaintiff-Respondent,

v.

CRYSTAL GABEL,

Defendant-Appellant.

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2015 Unpublished Opinion No. 517

Filed: June 11, 2015

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

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

Canyon County. Hon. George A. Southworth, District Judge. 

Judgment of conviction for possession of a controlled substance, affirmed. 

Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy 

Appellate Public Defender, Boise, for appellant. 

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

Attorney General, Boise, for respondent. 

________________________________________________

MELANSON, Chief Judge 

Crystal Gabel appeals from her judgment of conviction for possession of a controlled 

substance. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

An officer stopped a vehicle and received consent from the driver to search the vehicle. 

After four passengers exited, the officer searched the vehicle and found a small plastic bag 

containing methamphetamine in the area of the vehicle where Gabel had been sitting. The 

officer informed Gabel that her boyfriend had told the officer that he had given the bag to Gabel, 

which she confirmed. However, when her boyfriend was handcuffed, Gabel recanted her story 

and said her boyfriend did not know about the bag. Gabel then explained that a woman handed 
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the bag to Gabel and that Gabel did not know what was in the bag. Gabel was charged with 

possession of a controlled substance. I.C. § 37-2732(c)(1). Gabel’s case went to trial and ended 

in a hung jury. A second trial resulted in Gabel being found guilty of possession of 

methamphetamine. Gabel appeals.

II.

ANALYSIS

Gabel argues that the prosecutor committed two instances of misconduct during closing 

argument at trial. First, she argues that the prosecutor misstated the law when she told the jury 

that it must determine whether Gabel “knew or should have known” that the substance in the 

plastic bag was methamphetamine. Second, Gabel argues that the prosecutor improperly offered 

her opinions concerning Gabel’s untruthfulness and of her guilt of the charged crime. 

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

fact in a criminal case. Herring v. New York, 422 U.S. 853, 862 (1975). Its purpose is to 

enlighten the jury and to help the jurors remember and interpret the evidence. 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). 

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

expected to be diligent and leave no stone unturned, he or she 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.

Gabel made no contemporaneous objection to the prosecutor’s comments at trial. In 

State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court clarified the 

fundamental error doctrine as it applies to allegations of prosecutorial misconduct. If the alleged 

misconduct was not followed by a contemporaneous objection, an appellate court should reverse 

when the defendant persuades the court that the alleged error: (1) violates one or more of the 

defendant’s unwaived constitutional rights; (2) is clear or obvious without the need for reference 

to any additional information not contained in the appellate record; and (3) affected the outcome 
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of the trial proceedings. Id. at 226, 245 P.3d at 978. The issue here is whether Gabel has met her 

burden of showing that the prosecutor’s comments constitute fundamental error.

A. Misstatement of Law

Gabel argues that the prosecutor misinformed the jury when the prosecutor told the jury it 

could find Gabel guilty if it believed that she “should have known” that the substance she 

possessed was methamphetamine. Possession of a controlled substance is a general intent crime 

requiring that the defendant knowingly possess the substance. State v. Blake, 133 Idaho 237, 

240, 985 P.2d 117, 120 (1999). The purpose of the intent element in the definition of a 

possession offense is to separate innocent, accidental, or inadvertent conduct from criminal 

behavior. State v. Stefani, 142 Idaho 698, 704, 132 P.3d 455, 461 (Ct. App. 2005), abrogated on 

other grounds by State v. Galvan, 156 Idaho 379, 326 P.3d 1029 (Ct. App. 2014). In order to 

secure a conviction for possession of methamphetamine in violation of I.C. § 37-2732(c), the 

state must prove that the defendant knowingly possessed the controlled substance. State v. 

Armstrong, 142 Idaho 62, 64, 122 P.3d 321, 323 (Ct. App. 2005). Thus, the defendant’s 

ignorance of the presence of the substance, or mistaken belief that it was an innocuous material, 

if believed by the jury, would be exculpatory. Id. Accordingly, the prosecutor misinformed the 

jury that it must determine whether Gabel “knew or should have known” that the substance in the 

small plastic bag was methamphetamine. A jury finding that Gabel “should have known” that 

the substance she possessed was methamphetamine would not have been sufficient to find her 

guilty of possession of a controlled substance. The considerable latitude afforded both sides 

during closing arguments has limits. State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. 

App. 2007). The considerable latitude afforded the parties does not allow a party to misrepresent 

the law. See Phillips, 144 Idaho at 587, 156 P.3d at 587. Accordingly, Gabel has shown a clear 

and obvious error by the prosecution.

However, Gabel has not shown that the prosecutor’s error affected the outcome of the 

trial. Other than the one misstatement, the prosecutor did not attempt to prove or argue that 

Gabel should have known the substance she possessed was methamphetamine. Rather, the 

prosecutor argued that Gabel knew it was methamphetamine and provided circumstantial

evidence to prove that Gabel had actual knowledge that the substance she possessed was 

methamphetamine. For example, there was evidence produced at trial that Gabel admitted to 
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experimenting with methamphetamine and that she had admitted to smoking methamphetamine

four hours prior to the vehicle being stopped and a week prior to that. 

Finally, we note that the district court instructed the jury that, “if anyone states a rule of 

law different from any I tell you, it is my instruction that you must follow.” The district court 

properly instructed the jury that the state must prove that Gabel, “either knew [the substance she 

possessed] was methamphetamine or believed it was a controlled substance.” The district court 

instructed the jury that, if there was a conflict with what another person had said, the jury was to 

follow the district court’s instruction. We presume that 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 451, 454 (Ct. App. 1996). Gabel has not rebutted the 

presumption that the jury heeded the district court’s instruction that it must find that Gabel knew 

she possessed methamphetamine or believed it was a controlled substance, rather than the 

prosecutor’s misstatement. 

B. Opinion Statements

Gabel alleges that the prosecutor committed misconduct when she offered her opinions 

concerning Gabel’s untruthfulness and of her guilt of the charged crime. During her closing 

argument, the prosecutor stated:

So that leads to the question did she know it was meth. Did she know 

what was in that baggie? Well, again, just look at the facts. Based on her 

boyfriend’s testimony, they were in that car with a known drug dealer. They 

knew he dealt drugs. Based on her statements to the officer, we know that she has 

experimented with them. Those are her words on the audio: I’ve experimented 

with it. And then later: I used it about four hours ago. This is a Defendant who 

has used meth before. Did she know what was in the baggie? Yeah, she knew 

what was in that baggie.

She tells the officer that she doesn’t. She says oh, what’s that, what’s 

that? So then we have to ask, was she being truthful when she said oh, what’s 

that? I don’t know what it is. Would she have a motive to not be truthful at that 

point? I think so. Would she be trying not to get in trouble by pretending she 

didn’t know what was in the bag? Maybe. She’s used meth before. She knew 

what was in that bag.

I want to talk about credibility just a little bit. During jury selection, we 

talked about how you decide who’s being truthful when you have two different 

version of events. . . .

. . . You get to look at the credibility of the people involved and all the 

facts and decide who’s telling the truth.
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Now, there’s been a lot of information about the officer in this case being 

untruthful with [Gabel]. He was. He used a strategic untruth that he had been 

taught to do in his training to elicit information from someone on scene. Why do 

we do that? Why would he do that? Well, you find something in the car, you 

have four people in it, and they all say, oh, not mine. Not my meth.

You got to find some way for one of them to pony up and be truthful. It’s 

called strategic untruth, and it’s what we teach our officers to do, so he did it. He

said to [Gabel], your boyfriend said he handed it to you.

Now, the defense is going to tell you that everything that she said after 

that was a product of that untruth, that she was just mimicking the officer. She 

was just saying what he said. And if she said, yeah, you’re right and left it at that, 

I could maybe buy that. But she didn’t. She went on and on to explain how it 

was handed to her, what she did with it, where she put it. And then in the second 

version she goes on and on about the friend and the party, and again it’s handed to 

her and what she does with it. She doesn’t just mimic him. She gives him a 

whole version of events.

And today we’re being asked to say that wasn’t the truth. But she said it. 

She told us that. Did she possess methamphetamine? Did she know it was 

methamphetamine? One vehicle in this case. One bag of meth on one seat. And 

one Defendant who has told us twice that it was her methamphetamine that she 

held in her hand, that she possessed.

(Emphasis added.) 

Gabel alleges that the prosecutor committed misconduct when she told the jury that, in 

her opinion, Gabel had a motive to be untruthful and in stating that the prosecutor did not believe 

Gabel’s version of the events. Gabel asserts that the “I think so” and “I could maybe buy that” 

language from the prosecutor’s closing statement, emphasized above, support her allegation. 

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

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

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

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

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

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

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

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

evidence presented at trial. Phillips, 144 Idaho at 86 n.1, 156 P.3d at 587 n.1. The safer course 
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is for a prosecutor to avoid the statement of opinion, as well as the disfavored phrases “I think” 

and “I believe” altogether. Id.

The prosecutor used the disfavored “I” language that this Court warned against. The use 

of the “I think” and “I could maybe buy that” language sounds as if the prosecutor was 

expressing her personal opinion regarding the facts of the case. However, read in context it is 

apparent that the prosecutor was permissibly expressing opinions based upon the evidence. She 

explicitly stated that the opinions she expressed were based on inferences from the evidence 

presented at trial. The prosecutor prefaced her comments by stating, “Did she know what was in 

that baggie? Well, again, just look at the facts.” The prosecutor then explained how the facts 

led to the inferences that Gabel had a motive to be untruthful and that her confession was not the 

result of mimicking the officer’s comments. While it would have been prudent (and easily 

accomplished) for the prosecutor to avoid the appearance of expressing her personal opinion, 

Gabel has not shown a clear and obvious error in the comments made by the prosecutor.

III.

CONCLUSION

Gabel has failed to show that comments made by the prosecutor during closing argument 

constituted fundamental error. Therefore, her judgment of conviction for possession of a 

controlled substance is affirmed.

Judge LANSING and Judge GUTIERREZ, CONCUR.