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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 34718

STATE OF IDAHO,

Plaintiff-Respondent,

v.

SHARON K. ELDRED, aka SHARON KAY 

ELDRED, SHARON KAY BAILEY, 

SHARON KAY BAILY, SHARON KAY 

STONE,

Defendant-Appellant.

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2009 Opinion No. 64

Filed: September 9, 2009

Stephen W. Kenyon, Clerk

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

Canyon County. Hon. Gordon W. Petrie, District Judge. 

Judgment of conviction for felony driving under the influence, affirmed.

Molly J. Huskey, State Appellate Public Defender; Heather M. Carlson, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Rebekah A. Cudé, Deputy 

Attorney General, Boise, for respondent. 

______________________________________________

GUTIERREZ, Judge

Sharon K. Eldred appeals from her judgment of conviction for felony driving under the 

influence (DUI), Idaho Code §§18-8004, 18-8005(7). Eldred argues the prosecuting attorney at 

trial committed prosecutorial misconduct requiring vacation of the judgment of conviction. For 

the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

A concerned citizen followed Eldred’s vehicle on the highway after he witnessed Eldred 

swerve erratically across the lanes of traffic. After the citizen witnessed additional erratic 

driving, he called the police and reported Eldred’s behavior. The citizen continued to follow 

Eldred while she weaved unpredictably. When Eldred eventually stopped her vehicle in a store 
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parking lot, the citizen and a second witness confronted her and tried to get her to take the keys 

out of the ignition. Eldred responded unintelligibly and drove out of the parking lot, running 

over flower beds. The citizen again followed Eldred’s vehicle to a private residence. A police 

officer arrived and called for Eldred to stop several times as she walked unresponsively from her 

vehicle into the home. The officer followed her into the home and noted that, in addition to a 

strong odor of alcohol, Eldred spoke with slurred speech and had “glossy,” red eyes. The officer 

escorted Eldred outside and attempted to perform field sobriety tests, but Eldred was 

noncompliant and combative. The officer arrested Eldred under suspicion of DUI. At the jail, 

Eldred was administered a breathalyzer test which indicated that Eldred’s blood alcohol content 

was .264. The breathalyzer unit also reported that the reading was deficient for insufficient air 

flow. The officer observed that Eldred was attempting to appear to blow hard, but the unit was 

not receiving a strong air flow.

Eldred was charged with DUI which was enhanced to a felony based on a previous DUI 

conviction. After a jury trial, Eldred was found guilty of DUI and Eldred admitted her prior 

conviction for DUI. The district court sentenced Eldred to a unified term of ten years, with a 

minimum period of confinement of three years. Eldred appeals. 

II.

ANALYSIS

Eldred argues that the prosecutor committed misconduct during closing argument by 

stating that Eldred’s cloak of innocence had lifted, expressing an opinion of guilt, 

misrepresenting the burden of proof, misrepresenting evidence, and improperly appealing to the 

passions of the jury. Eldred acknowledges that no contemporaneous objections were made, but 

argues that the misconduct constitutes fundamental error. The state responds that the statements 

were not error, much less fundamental error. 

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 nevertheless is 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. 

When there is no contemporaneous objection, a conviction will be reversed for 

prosecutorial misconduct only if the conduct is sufficiently egregious so as to result in 
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fundamental error. Id. Prosecutorial misconduct rises to the level of fundamental error when it 

is calculated to inflame the minds of jurors and arouse prejudice or passion against the defendant, 

or is so inflammatory that the jurors may be influenced to determine guilt on factors outside the 

evidence. State v. Kuhn, 139 Idaho 710, 715, 85 P.3d 1109, 1114 (Ct. App. 2003). However, 

even when prosecutorial misconduct has resulted in fundamental error, the conviction will not be 

reversed when that error is harmless. Field, 144 Idaho at 571, 165 P.3d at 285. The test for 

whether prosecutorial misconduct constitutes harmless error is whether the appellate court can 

conclude, beyond a reasonable doubt, that the result of the trial would not have been different 

absent the misconduct. State v. Pecor, 132 Idaho 359, 368, 972 P.2d 737, 746 (Ct. App. 1998).

When the defendant does not object at trial, our inquiry is, thus, three-tiered. See Field,

144 Idaho at 571, 165 P.3d at 285. First, we determine factually if there was prosecutorial 

misconduct. If there was, we determine whether the misconduct rose to the level of fundamental 

error. Finally, if we conclude that it did, we then consider whether such misconduct prejudiced 

the defendant’s right to a fair trial or whether it was harmless.

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

fact in a criminal case. State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007). 

Its purpose is to enlighten the jury and to help the jurors remember and interpret the evidence. 

Id.; State v. Reynolds, 120 Idaho 445, 450, 816 P.2d 1002, 1007 (Ct. App. 1991). Both sides 

have traditionally been afforded considerable latitude in closing argument to the jury and are 

entitled to discuss fully, from their respective standpoints, the evidence and the inferences to be 

drawn therefrom. State v. Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969 (2003); Phillips, 144 

Idaho at 86, 156 P.3d at 587.

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. Appeals to emotion, passion, or prejudice of the jury through the 

use of inflammatory tactics are impermissible. Phillips, 144 Idaho at 87, 156 P.3d at 588. See 

also State v. Raudebaugh, 124 Idaho 758, 769, 864 P.2d 596, 607 (1993); Pecor, 132 Idaho at 

367, 972 P.2d at 745. Taking into account the permissible parameters afforded in presenting 

closing argument, we examine the three prosecutorial statements at issue.

In this case, the prosecutor began her closing argument stating:

I talked a little bit during voir dire about a cloak of innocence being placed 

on Ms. Eldred’s shoulders when she walked in that door, and it was a heavy 

cloak, because it is a heavy burden to remove it. And it is a burden that I, and I 

alone, must suffer. And it is a burden that I must present my testimony and I must 

show you my exhibits. And only through that, can that cloak be lifted.

Ladies and gentlemen, the cloak has been lifted. Ms. Eldred is guilty of 

driving under the influence. And not just barely over the legal limit, but quite a 

bit over the legal limit.

The prosecutor then discussed the elements of the crime and the application of the 

evidence presented at trial to those elements. Eldred argues that the prosecutor misrepresented 

the burden of proof. Idaho courts have not specifically addressed the situation of a prosecutor 

referring to the removal of a defendant’s cloak of innocence. In support of her argument, Eldred 

cites to cases from other jurisdictions that have scrutinized prosecutorial representations 

regarding the lifting of a defendant’s cloak of innocence. However, as argued by the state, these 

cases can be distinguished from the present case on the basis that most of them involve a 

prosecutor’s statement that the cloak has been lifted with no further explanation, which 

impermissibly shifts the burden of proof to the defendant before jury deliberation. Such 

misconduct occurred in the case of People v. Brooks, 803 N.E.2d 626 (Ill. App. Ct. 2004). In 

that case, the prosecutor told the jury during closing argument that the cloak of innocence was 

gone. Id. at 630. The court held that the statement was improper, in part, because it “did not 

indicate that after hearing the evidence the defendant was no longer cloaked in innocence.” Id. 

Similarly, the Massachusetts Appeals Court held that it was misconduct for a prosecutor to argue 

during closing argument that “now [the cloak of innocence] comes off.” Commonwealth v. 

Pagano, 710 N.E.2d 1034, 1039 (Mass. App. Ct. 1999). That court further clarified:

The prosecutor’s statement would not have been incorrect had he said that 

“the presumption of innocence . . . creates for every [d]efendant a cloak, a 

covering, a protection . . . unless and until evidence is presented . . . which would 

convince [the jury] beyond a reasonable doubt that the presumption . . . is 
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nonexistent.” . . . Here, however, the prosecutor, instead of saying in clear terms 

where the burden of proof lay, mangled the “classical statement that the 

presumption of innocence continues throughout the case.” . . . By emphasizing 

that at the end of the trial the “cloak comes off” the prosecutor may have 

suggested the defendant had some burden to prove his innocence. It is 

constitutionally impermissible to shift the burden of proving an element of the 

crime to the defendant. 

Id. (citations omitted). We agree with the analysis employed in these cases.

In this case, the prosecutor reminded the jury of the heavy burden she had to prove 

Eldred’s guilt and that she would need to present testimony and exhibits to do so. In fact, the 

prosecutor emphasized that it was only through her presentation of testimony and exhibits of 

Eldred’s guilt that the cloak could be lifted. The prosecutor concluded that she had met her 

burden and that the cloak of innocence had lifted and that Eldred was guilty of DUI. The 

prosecutor then elaborated on how her conclusions were supported by the evidence presented at 

trial. The prosecutor correctly stated that she had the burden of removing Eldred’s cloak of 

innocence and argued, in substance, that she had met that burden. The prosecutor’s comment did 

not impermissibly shift the burden to Eldred. 

Eldred further argues that the prosecutor’s reference to the burden of proof as something 

the prosecutor must suffer improperly appealed to the passions of the jury. Eldred would have us 

read the prosecutor’s statement with the most negative connotation. The Supreme Court of the 

United States has held:

Isolated passages of a prosecutor’s argument, billed in advance to the jury as a 

matter of opinion not of evidence . . . like all closing arguments of counsel, are 

seldom carefully constructed in toto before the event; improvisation frequently 

results in syntax left imperfect and meaning less than crystal clear. While these 

general observations in no way justify prosecutorial misconduct, they do suggest 

that a court should not lightly infer that a prosecutor intends an ambiguous remark 

to have its most damaging meaning or that a jury, sitting through lengthy 

exhortation, will draw that meaning from the plethora of less damaging 

interpretations.

Donnelly v. DeChristoforo, 416 U.S. 637, 646-47 (1974). The prosecutor’s language, if 

anything, had the effect of enhancing the jury’s understanding of her burden, not inciting 

emotions against Eldred. Therefore, we conclude that the prosecutor’s statement that the burden 

of removing Eldred’s cloak of innocence was one which the prosecutor must suffer was not an 

improper appeal to the passions of the jury. 
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Next, Eldred argues that it was misconduct for the prosecutor to express an opinion that 

“the cloak [of innocence] has been lifted” and “Ms. Eldred is guilty of driving under the 

influence.” The Idaho Supreme Court has held that a prosecuting attorney may express an 

opinion in argument as to the guilt of the defendant when such opinion is based upon the 

evidence. State v. McKeehan, 91 Idaho 808, 821, 430 P.2d 886, 899 (1967). As with opinions of 

guilt, we conclude that it is not misconduct for the prosecutor to refer to the removal of the cloak 

of innocence when such opinion is based upon evidence presented at trial. The prosecutor’s 

conclusion as to the removal of Eldred’s cloak of innocence and her guilt of DUI was a

permissible expression of opinion based upon the evidence presented at trial. Therefore, the 

prosecutor’s statements did not constitute misconduct.

The next statement which Eldred argues was misconduct occurred later in the 

prosecutor’s closing argument during her discussion of the evidence. The prosecutor stated:

[The first citizen witness] testified that this whole process took almost two 

hours. For almost two hours, he followed Ms. Eldred hoping she wouldn’t kill 

somebody, to the point he puts his flashers on, and talks about the fact that he was 

put there for a reason. . . . He truly believes he saved lives, and all because Ms. 

Eldred is driving . . . under the influence.

[The witness] had never met Ms. Eldred before that day, hadn’t met her 

since then. Did not know her. He was just an everday, average guy trying to save 

lives, and trying to prevent somebody from being hit as Ms. Eldred swerves 

across four lanes of traffic and almost hits the median.

Swerves across four lanes of traffic, goes like she is going to take an exit.

Goes through the dirt, swerves across a couple lanes of traffic, goes back 

over, and gets ready to take the next exit.

Swerves back across. At this point in time, we are driving two lanes down 

the interstate. It is the afternoon. People are just driving the roads, you or I.

She finally [exits], and he stops her, he and another car, another citizen. 

We don’t even know who he is. He is just another average citizen. . . . Please, 

please take the keys out of the ignition and put them on the dashboard, and let us 

get you help.

What is her reaction? She guns it, drives over a flower bed . . . and gets 

back out on the road.

She slams on her brakes, throws the car in reverse, and comes flying 

backwards, and then starts driving again.

And at this point . . . there are cars swerving out of the way to miss being 

hit by Ms. Eldred.

. . . .

All of this time, the defense would have you believe she is scared. It is 

that fear that is making her drive in a manner that could kill somebody.
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Eldred argues that the prosecutor improperly appealed to the passions and emotions of the jury 

when she stated that ordinary people were driving down the highway, people like “you or I” and 

said that Eldred drove “in a manner that could kill somebody.” Without expressing any opinion 

on whether these statements by the prosecutor were improper, we conclude that, even if the 

statements were improper, any resulting error did not rise to the level of fundamental error. The 

prosecutor’s statements were made as a way to describe the extremely aberrant way that Eldred 

was driving as a result of her intoxication. They were not formulated in a way to induce fear by 

inviting jurors to imagine themselves or their loved ones as potential victims. The statements are 

not so inflammatory as to deprive Eldred of a fair trial.

The last comment which Eldred argues was misconduct occurred during the prosecutor’s 

rebuttal closing argument. Trial counsel for Eldred argued to the jury that her erratic driving was 

a result of fear and that the results of the breathalyzer test were inaccurate because the sample 

was deficient. In rebuttal, the prosecutor stated:

Both of [the officers] testified [the breathalyzer] is a valid test. The 

Intoxilyzer machine has a series of internal safeguards designed to give the 

benefit of the doubt to [Eldred according to the officer].

Designed to keep those people that are under the influence off the road, 

and those people who are not to let them go.

[Trial counsel] made a big deal about the deficient sample. But, she said a 

deficient sample is not an accurate reading.

That’s not the testimony I heard. And, in fact, that’s not consistent to 

what is printed on the breath slip. A deficient sample is highest obtained.

We didn’t get that good bottom breath that [the officer] talked about, the 

good bottom breath that could have resulted in a higher blow.

And, why? Because she didn’t want to blow properly. She refused to 

blow properly.

At trial, the officer testified concerning Eldred’s actions during the administration of the 

breathalyzer test: “[Eldred] was attempting to blow, but she was doing an exaggerated, you 

know, cheeks puffed out. It looked like she was blowing extremely hard, but the machine was 

indicating to me that it was not receiving.” This testimony came after the officer had testified 

that Eldred was uncooperative and argumentative at the scene before being taken to the jail. The 

officer also testified that during his sixteen years of service, he had never encountered someone 

who was not able to blow long and hard enough to satisfy the requirements of the breathalyzer 

test. 
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It is well settled that 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. See Sheahan, 139 Idaho at 280, 77 P.3d 

at 969; Phillips, 144 Idaho at 86, 156 P.3d at 587. In this component of the closing argument, 

the prosecutor asked the jury to infer from the evidence presented that the deficient breathalyzer 

test was a result of Eldred’s lack of cooperation in correctly performing the procedure. This was 

a reasonable inference to draw from the evidence which was presented at trial and the prosecutor 

was allowed to fully discuss this evidence and inference with the jury. Therefore, the 

prosecutor’s statement was not a misrepresentation of the evidence and did not constitute 

misconduct. None of the prosecutor’s statements during closing argument constituted 

misconduct rising to the level of fundamental error.

III.

CONCLUSION

The prosecutor’s statements during closing argument did not improperly state that 

Eldred’s cloak of innocence had lifted, express an opinion of guilt, misrepresent the burden of 

proof, misrepresent evidence or appeal to the passions of the jury. The prosecutor’s description 

of the potentially fatal effects of Eldred’s criminal actions and description of those driving on the 

highway around Eldred as people like “you or I,” even if error, do not rise to the level of 

fundamental error. Accordingly, Eldred’s judgment of conviction for felony DUI is affirmed.

Chief Judge LANSING and Judge GRATTON CONCUR.