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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 36968

STATE OF IDAHO,

Plaintiff-Respondent,

v.

PONY L. JACKSON,

Defendant-Appellant.

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2011 Opinion No. 22

Filed: April 27, 2011

Stephen W. Kenyon, Clerk

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

Clark County. Hon. Joel E. Tingey, District Judge. 

Judgment of conviction for two counts of lewd and lascivious conduct with a 

minor, affirmed.

Molly J. Huskey, State Appellate Public Defender; Elizabeth A. Allred, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

LANSING, Judge

Pony L. Jackson appeals from his conviction on two counts of lewd and lascivious 

conduct with a minor child, Idaho Code § 18-1508. He seeks fundamental error review of a 

number of asserted instances of prosecutorial misconduct to which no objection was made at 

trial. Finding no error that meets the criteria for fundamental error, we affirm.

I.

BACKGROUND

In 2008, Jackson was charged with two counts of lewd conduct with a minor under 

sixteen years of age, I.C. § 18-1508, for acts of molestation of his niece, K.W., that were alleged 

to have occurred sixteen years earlier. K.W. apparently was prompted to report these offenses in 

2007 because she had heard of a news broadcast indicating that Jackson had been charged with 

possession of child pornography and that law enforcement authorities were requesting contact 
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from anyone who had been victimized by him. After a jury trial, Jackson was found guilty of 

both charges. On appeal, Jackson contends that the prosecutor violated a pretrial order that 

precluded the State from disclosing details of the news broadcast indicating other criminal 

activity by Jackson. He also argues that the prosecutor improperly elicited testimony from 

K.W.’s mother vouching for K.W.’s credibility and violated Jackson’s Fifth Amendment right 

against self-incrimination by referring during closing argument to the absence of any trial 

testimony by Jackson.

II.

STANDARD OF REVIEW

Jackson made no objection at trial to the alleged acts of prosecutorial misconduct of 

which he now complains. Trial error ordinarily will not be addressed on appeal unless a timely 

objection was made in the trial court. State v. Adams, 147 Idaho 857, 861, 216 P.3d 146, 150 

(Ct. App. 2009). This limitation “serves to induce the timely raising of claims and objections, 

which gives the [trial] court the opportunity to consider and resolve them.” Puckett v. United 

States, ___ U.S. ___, ___, 129 S. Ct. 1423, 1428 (2009). Because Jackson raises his claims of 

error for the first time on appeal, to obtain our review of these issues, he must establish that they 

are reviewable as “fundamental error.”

In its recent opinion in State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho 

Supreme Court re-examined the fundamental error doctrine and adopted a new definition of the 

types of error for which review will be provided on appeal in the absence of a timely objection in 

the trial court. The Supreme Court stated that to obtain relief on appeal for fundamental error:

(1) the defendant must demonstrate that one or more of the defendant’s unwaived 

constitutional rights were violated; (2) the error must be clear or obvious, without 

the need for any additional information not contained in the appellate record, 

including information as to whether the failure to object was a tactical decision; 

and (3) the defendant must demonstrate that the error affected the defendant’s 

substantial rights, meaning (in most instances) that it must have affected the 

outcome of the trial proceedings.

Id. at 226, 245 P.3d at 978 (footnote omitted). Thus, on a claim of fundamental error a defendant 

must first show that the alleged error “violates one or more of the defendant’s unwaived 

constitutional rights” and that the error “plainly exists” in that the error was plain, clear, or

obvious. Id. at 228, 245 P.3d at 980. If the appellate record is insufficient to show clear error, 

“the matter would be better handled in post-conviction proceedings.” Id. at 226, 245 P.3d at 978. 
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If the alleged error satisfies the first two elements of the Perry test, the error is reviewable. Id. 

To obtain appellate relief, however, the defendant must further persuade the reviewing court that 

the error was not harmless; i.e., that there is a reasonable possibility that the error affected the 

outcome of the trial. Id. at 226, 228, 245 P.3d at 978, 980.

III.

ANALYSIS

A. Evidence and Argument Implying Jackson Had Other Molestation Victims

In advance of trial, Jackson filed a motion in limine seeking exclusion, pursuant to Idaho 

Rule of Evidence 404(b),

1 of any evidence of his child pornography charge and any reference to 

television reports requesting that any alleged victims contact authorities. After a hearing on the 

motion, the district court reserved ruling until the evidence was proffered at trial. Immediately 

before trial was to begin, however, the prosecutor requested a ruling. He explained that he 

wanted to inquire of the victim in this area in order to explain why she had reported this abuse to 

authorities so long after the occurrence, and the prosecutor sought a ruling on the permissible 

boundaries so as not to cause “any mistrials or appealable issues.” After some discussion, the 

district court held that the prosecutor could make his point and avoid prejudice to Jackson by 

eliciting from the victim that “there was a law enforcement inquiry regarding Pony Jackson and 

that prompted her to come forward, something general and innocuous like that.” The court 

further directed the prosecutor to instruct the victim on this limitation to her testimony. 

Notwithstanding this ruling, in his opening statement the prosecutor said, “[I]t wasn’t until 2007, 

in January 2007, when there was a report on the news that anybody who had been molested by 

Pony Jackson, if they would contact the sheriff’s office or law enforcement had wanted them to 

do that.” Then the prosecutor elicited from the victim testimony that she contacted the sheriff’s 

department because “on the news they had said that Pony Jackson had been arrested and that 

anybody else that had been molested by him, to please come forward.” (Emphasis added.) 

Lastly, in closing argument the prosecutor said that after the victim heard a media report “that 

those who have something to say about Pony Jackson molesting them ought to come forward, 

 

1 Rule 404(b) states, in part, “Evidence of other crimes, wrongs, or acts is not admissible to 

prove the character of a person in order to show that the person acted in conformity therewith.”
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she came forward.” Defense counsel did not object, move to strike the testimony or argument, or 

request a mistrial. 

In order to satisfy the first prong of the Perry standard for fundamental error review--that 

the error violates one of his unwaived constitutional rights--Jackson appears to argue that 

because he has a Fourteenth Amendment due process right to a fair trial, necessarily all errors 

that taint a trial infringe on that right and thus are constitutional errors that are reviewable as 

fundamental error. We do not view this contention to be consistent with the Supreme Court’s 

pronouncement in Perry that “where . . . the asserted error relates not to infringement upon a 

constitutional right, but to violation of a rule or statute . . . the ‘fundamental error’ doctrine is not 

invoked.” Id. at 226, 245 P.3d at 978 (quoting State v. Kirkwood, 111 Idaho 623, 626, 726 P.2d 

735, 738 (1986)). Long before Perry, the Idaho Supreme Court had held that claims of error in 

the admission of evidence (including violation of Rule 404(b)) are not subject to fundamental 

error analysis. See, e.g., State v. Cannady, 137 Idaho 67, 72-73, 44 P.3d 1122, 1127-28 (2002); 

State v. Moore, 131 Idaho 814, 822, 965 P.2d 174, 182 (1998); State v. Evans, 129 Idaho 758, 

762, 932 P.2d 881, 885 (1997); State v. Davis, 127 Idaho 62, 64, 896 P.2d 970, 972 (1995); State 

v. Johnson, 126 Idaho 892, 896, 894 P.2d 125, 129 (1995); State v. Bingham, 116 Idaho 415, 

423, 776 P.2d 424, 432 (1989). While the Supreme Court has not been invariable in that 

position, holding in State v. Walters, 120 Idaho 46, 59, 813 P.2d 857, 870 (1991) (Boyle, J. 

concurring)2 that the admission, without objection, of a fire investigation expert’s opinion that 

the defendant was the person who started the fire was reviewable as fundamental error, the 

Walters decision appears to be the only exception. Both before and after Walters, the Supreme 

Court has consistently refused fundamental error review for evidentiary error that does not 

encompass a constitutional violation. In our view, the Perry Court’s definition of fundamental 

error as requiring a constitutional violation reflects an intent to frame a more definitive limit

upon fundamental error review, not to expand it. To hold that the presentation of evidence and 

associated argument in violation of an evidentiary rule satisfies the constitutional violation 

element of Perry because all evidentiary error implicates due process would, in our view, 

virtually eviscerate the first prong of the Perry standard and contravene the limits that Perry

places on fundamental error review.

 

2 Justice Boyle’s concurring opinion issued on rehearing was joined by two other justices 

and thus presented the view of a majority of the Idaho Supreme Court.
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Here, the trial court’s order prohibiting reference in front of the jury to the content of the 

news broadcast that implied other offenses by Jackson was not based upon any constitutional 

right but apparently upon the trial court’s determination that such evidence was inadmissible 

under Idaho Rule of Evidence 404(b). There being no demonstration that the prosecutor’s 

alleged misconduct in disobeying the pretrial order violated one or more of Jackson’s unwaived 

constitutional rights, no fundamental error has been shown.

B. Vouching Evidence

Jackson next asserts that the prosecutor committed misconduct by eliciting testimony 

from the victim’s mother that she believed her daughter was truthful in her allegations against 

Jackson. 

Whether this particular variety of evidentiary error, to which no objection was made at

trial, is reviewable as fundamental error was not made entirely clear by Perry. The Perry case 

itself involved a nearly identical claim of fundamental error. The prosecutor there elicited 

testimony from child victims’ foster parents and the investigating officer that they believed the 

victims were honest and/or believed the victims’ allegations against the defendant. Although the 

Supreme Court deemed this evidence inadmissible because “a question calling ‘for the opinion 

of one witness as to the truthfulness of another . . . is clearly an invasion of the province of the 

jury, who are the judges of the credibility of witnesses,’” id. at 229, 245 P.3d at 981 (quoting 

People v. Barnes, 2 Idaho 148, 150, 9 P. 532, 533 (1886)), and because such evidence does not

“assist the trier of fact” as required by I.R.E. 702, id., the Court declined to conduct a 

fundamental error review. In so declining, the Court did not address whether the error violated 

one of the defendant’s constitutional rights. Instead, the Court skipped to the second prong of 

the Perry standard, which asks whether the failure to object at trial was a strategic decision. Id. 

Finding that the record of Perry’s trial indicated that defense counsel may have chosen not to 

object to the vouching testimony as a matter of trial strategy, the Court refused fundamental error 

review. 

The same approach is not appropriate here. The record in this case suggests no reason to 

conclude that defense counsel elected, as a matter of trial strategy, to waive any objection when 

the prosecutor elicited testimony from K.W.’s mother that she believed K.W.’s allegations 

against Jackson. Therefore, we must address the issue that was not determined in 
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Perry--whether the elicitation of vouching testimony from a lay witness violates a constitutional 

right of the accused.

We conclude that it does not. People v. Barnes, the early decision cited by the Perry

Court for the proposition that it is impermissible for one witness to vouch for the truthfulness of 

another witness’s testimony, did not predicate that rule upon a constitutional principle; rather, it 

cited a provision of the Idaho Territories Code of Civil Procedure. Barnes, 2 Idaho at 150, 9 P. 

at 533. Since adoption of the Idaho Rules of Evidence, Rules 608(a), 701, and 702 have all been 

cited as disallowing testimony of one witness that another witness was or was not telling the 

truth in particular testimony. See, e.g., State v. Christiansen, 144 Idaho 463, 468, 163 P.3d 1175, 

1180 (2007) (Rule 608(a)); State v. Perry, 139 Idaho 520, 525, 81 P.3d 1230, 1235 (2003) 

(Rule 702); State v. Raudebaugh, 124 Idaho 758, 768, 864 P.2d 596, 606 (1993) (Rule 608(a)); 

State v. Hauser, 143 Idaho 603, 612, 150 P.3d 296, 305 (Ct. App. 2006) (Rule 701); State v. 

Johnson, 119 Idaho 852, 857-58, 810 P.2d 1138, 1143-44 (Ct. App. 1991) (Rule 701). We have 

found no Idaho authority that invoked a constitutional provision as a basis for excluding 

vouching testimony. Hence, we hold that Jackson’s assertion, raised for the first time on appeal, 

that the vouching testimony of the victim’s mother was inadmissible, does not present an issue of 

fundamental error.

Even if the principle disallowing vouching testimony were found to have constitutional 

roots, the presentation of the testimony of the victim’s mother here would not lead us to reverse 

Jackson’s conviction, for he has not shown that the error affected the outcome of his trial. This 

Court discussed the relative prejudicial effect of vouching testimony in Reynolds v. State, 126 

Idaho 24, 30, 878 P.2d 198, 204 (Ct. App. 1994):

At least with respect to the witnesses in this case, a partisan lay witnesses [sic]

testimony generally implies a belief in the claims of the party for whom they are 

testifying. We do not believe that in this case a mother’s testimony that she 

believes her child, or an adult friend’s testimony that she believes the victim, 

would have any more than a marginal effect on the jury’s determination of the 

credibility of the victim. The danger of experts testifying regarding credibility 

lies in the perception by the jury that the expert is a detached, neutral party who 

has no stake or interest in the litigation. Experts often possess special knowledge 

or training, giving their opinions of credibility great weight in the minds of jurors. 

Such weight is not afforded the lay witness who obviously sides with one party.

The error here permitted the jury to hear vouching testimony only from the victim’s mother. For 

the reasons stated in Reynolds, Jackson has not shown a reasonable possibility that the vouching 
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testimony of K.W.’s mother affected the outcome of his trial. Accordingly, this error, even if 

fundamental, would not warrant a new trial. 

C. Alleged Prosecutorial Reference to Defendant’s Choice not to Testify

Jackson also asserts fundamental error in a number of the prosecutor’s statements during 

closing arguments. According to Perry, “Where a prosecutor attempts to secure a verdict on any 

factor other than the law as set forth in the jury instructions and the evidence admitted during 

trial, including reasonable inferences that may be drawn from that evidence, this impacts a 

defendant’s Fourteenth Amendment right to a fair trial,” and hence is reviewable as fundamental 

error. Perry, 150 Idaho at 227, 245 P.3d at 979.

Jackson first complains of the following statements made by the prosecutor at closing 

argument:

What is--what’s her motive to say these things other than if it isn’t true? . . . I 

mean, it happened. It’s believable. . . .

. . . .

There’s just so many things that she has talked about that are so credible 

that I believe that the only right and just verdict in this case . . . is that Pony 

Jackson sexually abused [the victim] . . . . How could you make these facts up? I 

mean, how--a mirror, I mean, think about it. I mean, scissors. What she says 

happened happened.

Jackson argues that these statements violated the prohibition against attorneys interjecting at trial 

their personal opinions and beliefs about the credibility of a witness, see State v. Phillips, 144 

Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007), and thereby infringed his constitutional right to 

due process. We disagree. Prosecutors are entitled to ask jurors to draw inferences from the trial 

evidence, including inferences about a witness’s credibility. State v. Felder, 150 Idaho 269, 272-

73, 245 P.3d 1021, 1024-25 (Ct. App. 2010); State v. Priest, 128 Idaho 6, 14, 909 P.2d 624, 632 

(Ct. App. 1995). This claim of misconduct is not reviewable under the fundamental error 

doctrine because it is not plain, clear, or obvious that the prosecutor was asking the jury to render 

a decision based on the prosecutor’s personal opinion or belief rather than asking the jury to 

draw reasonable inferences from the trial evidence concerning the victim’s credibility. 

The next statement with which Jackson takes issue is the prosecutor’s comment that the 

victim “ought not to be held or punished again for waiting to come forward” with her allegations 

of abuse until years later. This, Jackson urges, was an impermissible attempt to obtain a guilty 

verdict by argument aimed at engendering sympathy for the victim. See State v. Troutman, 148 
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Idaho 904, 910, 231 P.3d 549, 555 (Ct. App. 2010). While this brief and indirect statement 

might be viewed as seeking to invoke sympathy, it does not meet the Perry standard that the 

constitutional error be plain, clear, or obvious. Nor could we find that it was of such moment 

that there is a reasonable possibility that it altered the outcome of the trial. Therefore, no 

fundamental error is shown.

Jackson’s final contention is that the prosecutor violated Jackson’s Fifth Amendment 

right to remain silent by commenting upon his choice not to testify at trial when, during rebuttal 

closing argument, the prosecutor said, “Did we hear any testimony that [the alleged lewd 

conduct] didn’t happen? I don’t recall hearing any testimony that it didn’t happen. The only 

testimony I recall was that it happened.” 

The Fifth Amendment guarantee that no person may be compelled in a criminal case to 

be a witness against himself is violated if a prosecutor comments upon a defendant’s failure to 

testify at trial. Griffin v. California, 380 U.S. 609, 614 (1965); State v. McMurry, 143 Idaho 312, 

314, 143 P.3d 400, 402 (Ct. App. 2006). This rule applies to both direct and indirect comments 

about the absence of testimony from the defendant. McMurry, 143 Idaho at 314, 143 P.3d at 

402. While a prosecutor’s general reference to “uncontradicted” evidence does not necessarily 

reflect on the defendant’s failure to testify where witnesses other than the defendant could have 

contradicted the State’s evidence, comments on the lack of contradicting evidence may result in 

an indirect Griffin violation, depending upon the number and nature of those comments. 

McMurry, 143 Idaho at 314-15, 143 P.3d at 402-03. Jackson asserts that because he did not 

testify at trial and because he was the only potential trial witness who could have contradicted 

the victim’s allegations against him, the prosecutor violated this standard in the rebuttal closing 

argument. 

We conclude that this claim of error does not warrant fundamental error review. The 

prosecutor’s statement must be evaluated in light of defense counsel’s closing argument that 

immediately preceded it. State v. Severson, 147 Idaho 694, 719, 215 P.3d 414, 439 (2009). 

During cross-examination, defense counsel had elicited from a detective that in an interview 

Jackson had denied molesting the victim. Then during his closing argument, defense counsel 

said:

Mr. Jackson has a constitutional right not to have to testify. He’s not required to 

testify. And you cannot take that for anything, a matter of his guilt or of his 

innocence. He has a constitutional right not to be required to take the stand. But 
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he already did testify to the detective; and again, he denied any of these things 

ever happened.

(Emphasis added.) In this context, the prosecutor’s responsive statement can be viewed as fair

rebuttal to defense counsel’s mischaracterization of Jackson’s statements to the detective as

“testimony.” Nothing in the prosecutor’s rebuttal argument explicitly called for the jury to infer 

that Jackson was guilty because of his silence or to convict him on that basis. As stated by our 

Supreme Court, “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.” Severson, 147 Idaho at 719, 

215 P.3d at 439 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974)). The 

prosecutor’s comment here, given in response to defense counsel’s own improper argument, was 

at most an indirect and ambiguous comment on the absence of trial testimony from Jackson; it 

does not satisfy the Perry requirement that the constitutional error must be plain, clear, or 

obvious. 

IV.

CONCLUSION

We conclude that Jackson has not demonstrated fundamental error. Therefore, the 

judgment of conviction is affirmed. 

Judge GUTIERREZ and Judge MELANSON CONCUR.