1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 32866

STATE OF IDAHO , Plaintiff-Respondent ,

v.

STEVEN RAY ROOT , Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) 2010 Unpublished Opinio n No. 493

Filed: June 3, 2010
Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John P. Luster , District Judge.
Judgment of conviction for possession of methamphetamine with intent to deliver, possession of a controlled substance, and possession of drug p araphernalia, affirmed

. Molly J. Huskey, State Appellate Public Defender; Sarah E. Tompkins, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Elizabeth A. K oeckeritz, Deputy Attorney General, Boise, for respondent.

________________________________________________ GRATTON, Judge Steven Ray Root appeals from his judgment of conviction entered upon a jury verdict finding him guilty of poss ession of methamphetamine with intent to deliver, Idaho Code § 37

- 2732(a), possession of a controlled substance, I.C. § 37

- 2732(c) , and possession of drug paraphernalia, I.C. § 37

- 2734A

. I.

FACTS AND PROCEDURAL BACKGROUND On October 25, 2004, Sergeant Bar ry Alleman pulled Root over for failure to stop at a posted stop sign. Alleman asked Root for his identification, registration, and proof of insurance. Root responded that he had lost his wallet and did not have any identification. Root did not provide any registration or proof of insurance. Alleman noticed a rifle in a gun rack behind Root. Alleman asked Root to step out of the vehicle and inquired as to whether there were any2

other weapons in the vehicle, to which Root responded that there were none. After Root exited the vehicle, Alleman noticed the handle of a knife sticking up between the driver’s and passenger’s seats, which he secured. Root had a female passenger in the vehicle, who w a s also asked to provide identification. The passenger moved some clothes in order to retrieve some identification from her purse and
, as she did so, Alleman noticed a semi

- automatic handgun underneath the seat. The passenger was asked to exit the vehicle. As soon as the passenger was away fr om the vehicle, Allem an asked Root whether everything in the vehicle belonged to him, and he responded affirmatively. Alleman removed the handgun from the vehicle and disarmed it. The passenger was ultimately
allowed to leave. Due to the fact that Root could not produce any identification and that Root had lied about not having any other weapons, Alleman placed Root under arrest for failure to carry a
driver’s license. Root was handcuffed and placed in the back of Alleman’s patrol car. Deputy Chris Kerzman, who had respond ed as a cover officer, then conducted a search of the vehicle

. Kerzman located, underneath some clothing, a black case with contraband inside, including drug

pa raphernali a, three baggies containing a white crystalline substance, which later tested positiv e as methamphetamine, and a baggy containing a green leafy substance, which later tested positive as marijuana

. Root was ultimately charged with driving without a license, possession of methamphetamine with intent to deliver, possession of marijuana, and possession of drug paraphernalia. The State dismissed the driving without a license charge. A jury found Root guilty on all three remaining counts. Root was sentenced to ninety days, with credit for ninety days served, for the offenses of possession of drug paraphernalia and possession of marijuana. On March 15, 2006, t he district court imposed a unified sentence of eight years, three years determinate, for the offense of possession of methamp hetamine with intent to deliver, and retained jurisdiction. The court ultimately placed Root on probation. Root appeals only with respect to his judgment of conviction and sentence on the charge of possession of methamphetamine with intent to deliver.3 II.
ANALYSIS
A. Hearing Root asserts that he repeatedly sought a hearing from the district court in order to establish good cause
, pursuant to Idaho Criminal Rule 12(d)
, for his failure to timely file a motion to suppress and that the district court abused its discretion when it failed to hold a hearing. The State a rgues that because Root never filed a motion to show cause for relief from his failure to timely file a motion to suppress, he did not adequately raise the issue before the
district court. The State contends that because a motion was never filed, the dist rict court never
ruled on whether Root should be grant ed a hearing and, as such, there is no adverse ruling from which to base an assignment of error.
M otions to suppress evidence on grounds that it was illegally obtained must be raised prior to trial. Id aho Criminal Rule 12(b). Specific time frames are set forth in I

. C

. R

. 12(d) as follows : Motions pursuant to Rule 12(b) must be filed within twenty

- eight (28) days after the entry of a plea of not guilty or seven (7) days before trial whichever is earlier. In felony cases, such motions must be brought on for hearing within fourteen (14) days after filing or forty

- eight (48) hours before trial whichever is earlier. The court in its discretion may shorten or enlarge the time provided herein, and for good ca use shown, or excusable neglect, may relieve a party of failure to comply with this rule.
The failure to raise defenses or objections or make requests that must be raised prior to trial, subject to any extensions granted by the court or times set by the c ourt pursuant to I.C.R. 12(d),
constitutes a waiver . I.C.R. 12(f). The court may, for good cause shown, grant relief from the waiver. I.C.R. 12(f).
In this c ase, Root entered his plea of not guilty on January 28, 2005. On July 21, 2005,
Root filed a m otion to continue based upon three grounds, the admissibility of the State’s proposed I.R.E. 404(b) evidence, pending discovery issues relative to video or audio evidence, and suppression of the State’s evidence as a result of an illegal arrest. Root asse rted that the police reports did not reveal why the State’s evidence should not be suppressed as a result of an illegal arrest. Root acknowledged , however, that the time to file a motion to suppress pursuant to I.C.R. 12(d) had expired. As such, he reque sted a hearing “ to determine whether cause exists to grant relief from any waiver” pursuant to I.C.R. 12(f).4

Also on July 21, 2005, a hearing was held and Root essentially reiterated the issues set
forth in his motion to continue . The State indicated tha t it was concerned about Root failing to appear for scheduled hearings
, but did not object to a short continuance. The distr ict court vacated the trial date but set a hearing for July 25, 2005, in order to verify that Root was still in
communication with his attorney and also to allow defense counsel the opportunity to ask Deputy Alleman some “ threshold” questions regarding his reasons for arresting Root
, as well as whether there existed any “ additional items of evidence that were of concern for the defens e.”
The court noted that “ it would be probably helpful for any future motions concerning leave to pursue a motion to suppress.” On July 25, 200 5, the court acknowledged that Root was present thereby alleviating the State’s concern. The court also noted that Deputy Alleman was not present. The prosecutor indicated that he was able to speak with Deputy Alleman over the phone regarding the nature of the stop and why he took Root into custody. The conversation was recorded, and a tape of that
conversation was provided to defense counsel. The court noted that the tape may or may not

“ end that issue” but that it would give defense counsel some information to work with. The

cour t then granted the continua nce. Thereafter, the State requested a continuance be cause the arresting officer was unavailable. The court granted the continuance and set the trial date for November 21, 2005. On November 18, 2005, the date scheduled for the pre

- trial conference, Root requested another
continuance. At that hearing, Root ’s trial counsel represented that the previous hearing had been scheduled to address his motion to suppress, but that the arresting officer failed to appear. The court commented that the court file reflected that a motion to suppress had never been filed. The court summarized the prior proceedin gs and indicated that it had left the scheduled trial date in place in order for Root to make an appearance
, and also to allow defense counsel the opportunity to ask Deputy Alleman some questions “ to see if there w as any information that was being sought by the defense.” The court noted that Deputy Alleman was not present because he was on
administrative leave and thus it was “ left to counsel’s own devices to ascertain whether or not
this information was or was not available in the form of a tape.” Responding to the State’s objection that Root had the police reports and could have timely filed a motion to suppress , Root’s trial counsel referenced his motion to continue, wherein he requested a hearing “ to determine w hether cause exists to grant relief from any waiver.”5

Counsel argued that he was told that there were no aud io or video tapes of the arrest, but that he
had obtain ed, on his own initiative, dispatch tapes, which he asserted were exculpatory in nature.
He asserted that the failure of the State to produce exculpatory evidence did constitute cause for the court to consider the admissibility of the Stat e’s evidence. Counsel stated :

I would move to continue and vacate the trial setting in this matter. Ask th e court to hold a hearing to determine whether waiver has taken place and to offer evidence that this case, the genesis of this case is in violation of the Fourth Amendment to the United States Constitution in that there was an illegal arrest. The dispatch tapes that I have heard do reveal that the officer had, there was no question as to Mr. Root’s identity. He was arrested ostensibly on a 49

- 316, failure to carry a driver’s license. The officer, as the dispatch tapes revealed, received from dispatch a ph ysical description of Mr. Root and, Judge, that was never revealed by the state. Cause exists , the court should consider the admissibility of the state’s evidence before we do go to trial.
Thereafter, the court indicated that it would review the proceedi ngs and make a formal determination. The court explicitly stated that it would review the file and “ give consideration to the motion that’s in front of the court” before making a “ final determination on the motion to continue.”
The cou rt subsequently issu ed a written order denying Root’s motion to continue. Noting that Root’s reasons for seeking a continuance were similar to those previously argued, the court acknowledged Root’s desire to ascertain whether or not a udio or video tapes did exist and
whether such evidence was exculpatory. The court concluded that further delay was unnecessary when the court could simply issue a directive resolving the question. Thus, the court ordered the prosecuting attorney to determine whether any tapes were made and , if they did exist, to make
them available to defense counsel for inspection

. The court then addressed Root’s request for a continuance for the purpose of pursuing a motion to sup press and concluded that a motion to suppress would be untimely based upon the Idaho Criminal Rules. Thus, the court denied Root’s
motion to continue. Root does not challenge the district court’s denial of his motion to continue. Rather, he
contends that the district court erred in fai ling to provide him “ with an opportunity to
de monstrate good cause for his untimely filed motion to suppress” and that this error is

“ particularly troublesome” given recent developments in the case law with respect to searches incident to arrest, specifically the United States Supreme Court’s recent o pinion in Arizona v.6

Gant , ___ U.S. ___, 129 S.Ct. 1710 (2009). However, Root does not present any argument that good cause existed to relieve him of the tim e requirements set forth in I.C.R. 12(d) . He simply argues that the court erred in not providing him with a hearing to establish good cause. This argument is without merit. Root requested a continuance in order to pursue a motion to suppress, and the court granted his motion. Thereafter, Root did not file a motion to suppress or a motion for leave to pursue a motion to suppress. Rather, he raised the same issue again three days before the
scheduled trial date . His request for a second continuance was essentially for the same reasons that he had previously been granted a continuance. While Root re quested a hearing in order to establish good cause, his arguments at th e November 18 hearing went to the issu e of whether good cause existed. It is unclear what further arguments would have been presented had a hearing been granted for the specific purpos e of determining whether good cause existed to relieve Root from his waiver. Root does not identify on appeal what arguments would have been advanced to establish good cause. Regardless, h is request for a hearing on the issue of whether good cause existe d was bound up in his motion for a continuance. The court understood there to be only one motion, a motion to continue. Root did not attempt to correct the district court when it explicitly stated that it would only be ruling on the motion to continue. The court ruled on that motion, and Root does not challenge that ruling on appeal. Thus, Root has failed to show that the court erred in not holding a hearing. Moreover, the district court did not abuse its discretion in denying Root’s motion to
continue , especially in light of the fact that it had already granted a continuance for the reasons
advanced in the first motion to continue . The f acts of this case are similar to those of State v. Irving , 118 Idaho 673, 799 P.2d 471 (Ct. App. 1990). In that cas e, Irving failed to file a motion to suppress within the time frame set forth in I.C.R. 12(d). He filed a motion to continue the day before trial, and the trial court denied the motion the morning of trial. Irving contended that the State’s noncompliance with his discovery requests prevented him from filing a timely motion to suppress. This Court noted that Irving had obtained information upon which to base a motion to suppress. We then determined that because the State had the burden of producing evide nce and the burden of persuasion at the suppression hearing, Irving could have filed a timely motion to suppress, notwithstanding any failure to comply with discovery. We ultimately concluded that Irving’s substantial rights had not been adversely affecte d where “ the motion for continuance7

was made for the express purpose of filing an untimely motion to suppress.” Irving , 118 Idaho at 675, 799 P.2d at 473. Similarly, in this case Root had the police reports of the incident. Indeed, he argued in
his mot ion to continue that “ [t]he (sworn) police reports further do not reveal why the State’s evidence should not be suppressed as a direct and proximate result of an illegal arrest.” While Root continued to pursue audio or video evidence of the arrest, he had sufficient information upon which to file a timely motion to suppress. Thus, where the motion to continue was made for the express purpose of filing an untimely motion to suppress, the court did not abus e its discretion in denying the motion.
B. Prosec utorial M isconduct
Root c hallenges several statements made by the prosecutor during closing argument. Root asserts that the prosecutor was permitted, over his objection, to argue to the jury on
numerous instances that Root lied in connection with the case and that he lied specifically to the jury. A review of the record, however, demonstrates that Root only objected to one of the prosecutor’s statements where he stated, “ Mr. Root is willing to lie to a judge and get up in front of you and tell you he did that.” Root objected on grounds that the statement lacked foundation and presumed facts not in evidence. The district court overruled the objection. On appeal, Root contends that all of the prosecutor’s statements , including the one objected to, were an improper attempt to disparage him personally and to appeal to the passions and prejudice of the jury. However, an objection which was overruled by the lower court on the ground stated cannot be considered on appeal on a different ground. State v. Johnso n , 119 Idaho 852, 855, 810 P.2d 1138, 1141 (Ct. App. 1991) (citing State v. Pruett , 91 Idaho 53 7, 428 P.2d 43 (1967)). Thus,
because the objection was not properly preserved on the grounds now asserted on appeal, we will
review the prosecutor’s statement for fundamental error as if no objection was made. While our system of criminal justice is adversarial in nature, and the prosecutor is expected to be diligent and leave no stone unturned, he is nevertheless expected and required to
be fair. State v. Fiel d , 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. A fair trial is not necessarily a perfect trial. When there is no contemporaneous objection, a co nviction will be reversed for prosecutorial misconduct only if the conduct is sufficiently egregious so as to result
in fundamental error. Id. Misconduct will be regarded as fundamental error when it “goes to the8

foundation or basis of a defendant’s righ ts or . . . to the foundation of the case or take[s] from the defendant a right which was essential to his defense and which no court could or ought to permit
him to waive.” State v. Severson , 147 Idaho 694, 716, 215 P.3d 414, 436 (2009); State v. Bingham , 116 Idaho 415, 423, 776 P.2d 424, 432 (1989) (quoting State v. Garcia , 46 N.M. 302, 309, 128 P.2d 459, 462 (1942)). “However, even when prosecutorial misconduct has resulted in fundamental error, the conviction will not be reversed when that error is ha rmless.” Field , 144 Idaho at 571, 165 P.3d at 285. Under the harmless error doctrine, a conviction will stand if the appellate court is convinced beyond a reasonable doubt that the same result would have been reached by the jury had the prosecutorial mis conduct not occurred. State v. LaMere , 103 Idaho 839, 844, 655 P.2d 46, 51 (1982); State v. Pecor , 132 Idaho 359, 368, 972 P.2d 737, 746 (Ct. App. 1998). When the defendant did 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 m isconduct prejudiced the defendant’s right to a fair trial or whether it was harmless.
All of the prosecutor’s statements Root challenges on appeal occurred during closing argument. Closing argument serves to sharpen and clarify the issues for resolution by the trier of
fact in a criminal case. State v. Timmons , 145 Idaho 279, 288, 178 P.3d 644, 653 (Ct. App. 2007). Its purpose is to enlighten the jury and to help jurors remember and interpret the
evidence. Id .; State v. Reynolds , 120 Idaho 445, 450, 81 6 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 therefro m. State v. Sheahan , 139 Idaho 267, 280, 77 P.3d 956, 969 (2003).
Root claims that the prosecutor committed misconduct by repeated ly asserting that Root had lied with respect to his public defender application as well as the issue regarding ownership
of t he vehicle. Closing argument should not include the prosecutor’ s personal opinions and
beliefs abou t the credibility of a witness or inflammatory words employed in describing the
defendant. State v. Phillips , 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007). A prosecuting attorney may express an opinion in argument as to the truth or falsity of testimony or9

the guilt of the defendant when such opinion is based upon the evidence, but the prosecutor should exercise caution to avoid interjecting his or h er 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. Generally, it may be improper to label the defendant as a

“ liar,” for test imony given in his or her defense. See Kuhn , 139 Idaho at 716, 85 P.3d at 1115.

“ It is not misconduct, however, to refer to the defendant as a liar if the defendant admitted to lying in connection with the case. ” State v. Gross , 146 Idaho 15, 18

- 19, 189 P.3d 477, 480

- 81 (Ct. App. 2008). When discussing the issue of credibility with the jury, the prosecutor, referencing Root’s testimony about his public defender application, stated approximately four times that Root had lied in filling out the application . Root had indicated in his application that he had not been working for three months. On cross

- examination, Root testified that he had been laid off but that his former employer gave him some “under

- the

- table work” to “make a couple extra bucks.”
Root testified that he “might have lied a little bit, but it wasn’t intentional.” Thus, Root acknowledged being untruthful when filling out his public defender application. The prosecutor also asserted that Root was “lying to [the jury] about the ownership of the
truck.” Root test ified that he had temporarily t raded trucks with an individual, but that they had not decided whether or not to make the trade permanent. One of the State’s witnesses testified
that Root traded his Ford Ranger pickup as well as three hundred dollars for a Ford F

- 150, the truck he was driving when he was arrested. The witness testified that the trucks were traded in July 2004
, and that she saw Root drive the Ford F

- 150 at least ten times between July and October. A Coeur d’Alene city police officer also testified that he had pulled Root over for a
traffic violation a few days before the incident giving rise to this case and that Root was driving a
Ford F

- 150 truck. Thus , Root placed his credibility at issue when he testified that he did not own
the truck. Moreover, Root also placed his credibility at issue when he directly contradicted Deputy Kerzman’s testimony. Kerzman testified that he discovered an IOU note bearing Root’s
name in the black case
, in addition to the con traband. R oot testified that the IOU note was in his wallet, not in the black case. Root’s testimony generally contradicted the testimony of the State’s witnesses. Thus, his credibility was at issue.
We r ecently addressed a similar issue in Gross . In that case, t he defendant testified that
he had lied to the officers about his alcohol consumption but that he intended to come forward10

with the truth prior to trial

. Gross , 146 Idaho at 19, 189 P.3d at 481. His testimony also implied
that the officers had fabricated evidence by removing portions of the audio recording of the stop. The prosecutor, in the initial closing argument, referenced the defendant’s lie twice and called Gross a “liar” five separate times during rebuttal. While we acknowledged that the prosecu tor’s excessive use of the term “liar” was “troubling,” we concluded that it “did not amount to misconduct given that [the defendant] placed his credibility in issue and admitted to lying in
connection with the case.” Id. In this case, the pro secutor did not explicitly call Root a “liar.” The prosecutor referred to Root as having lied with respect to his public defender application as well as ownership of the vehicle. Root admitted to having lied on his public defender application, and the prosecutor was
free to argue the evidence presented on that issue. Moreover, Root placed his credibility at issue with respect to ownership of the vehicle. Thus, similar to Gross , where Root admitted to lying in connection with the case and placed his credibility in i ssue, the prosecutor’s references to Root having lied did not amount to misconduct. Root next argues that the prosecutor’s attempt to disparage Root by stating that he had lied was exacerbated by the following statement:

Credibility, the thing I talked ab out earlier, is something that you have to hold against Mr. Root because of the way he testified and the statements he made. Because of that, I think you have to accept what the police officers said in terms of their credibility. I’ll leave it up to you, but

-- and that’s a decision you need to make.

Root contends , relying on federal and out

- of

- state case law, that this argument improperly

sugges ted a false dichotomy, that the jury was required to believe either the defendant’s or the
State’s version of events. As noted, 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. Sheahan , 139 I daho at 280, 77 P.3d at 969; Phillips , 144 Idaho at 86, 156 P.3d at 587. This includes the right to identify how, from the party’s perspective, the evidence confirms or calls into doubt the credibility of particular
witnesses. State v. Lovelass , 133 Idah o 160, 168, 983 P.2d 233, 241 (Ct. App. 1999) (citing
State v. Priest , 128 Idaho 6, 14, 909 P.2d 624, 632 (Ct. App. 1995)). Of course, closing11

argument should not include counsel’s personal opinions and beliefs about the credibility of a
witness. Phillip s , 144 Idaho at 86, 156 P.3d at 587. Here, the prosecutor argued that the jury should hold credibility against Root. However, the argument was made in the context of the prosecutor’s attempt to establish possession of the drugs and, specifically, the bla ck case where the drugs were found , in light of Root’s testimony that the black case was not his and that he did not know what was inside. After informing the jury that it was required to make the credibility determination, the prosecutor stated:

But when you do that, think about the following when you think about possession. And these are the things that show he was in possession of that. His truck, and had been for a long time. His stuff in it, clothing over the black case, knife right next to the blac k case, pistol right under the black case, rifle right behind the black case. All of that stuff that was his was in close proximity to the black case. His statement, everything in there is his. Take that for whatever it’s worth. It really doesn’t mean v ery much. It’s the circumstantial evidence here that ties him to possession. And you’ve got his truck and those things that are his in close proximity to that. The fact that when he’s contacted by the police, the black case is right next to him. And fin ally the note, the note itself. You have an IOU, which, again, you can look at it as evidence of intent to deliver. And it’s the clear testimony from the officer that this IOU, that the defendant admitted was to him, was in the black case. That establis hes possession in this black case.

T he prosecutor’s argument presented, from the State’s perspective, why the evidence demonstrated that Root’s testimony was not credible and the officers’ testimony was credible. Thus, the prosecutor’s statements did not constitute misconduct.
III.
CONCLUSION Root has failed to demonstrate that the district court erred in not holding a hearing to determine whether good cause existed to a llow him to file an untim ely motion to suppress. The prosecutor’s statements during closing argument did not constitute misconduct. Root’s judgment
of conviction and sentence entered thereon are affirmed. Judge GUTIERREZ and Judge MELANSON, CONCUR.