IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37139
STATE OF IDAHO, )
) 2011 Opinion No. 46
Plaintiff-Respondent, )
) Filed: August 3, 2011
v. )
) Stephen W. Kenyon, Clerk
ANICETO BETANCOURT, IV, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Third Judicial District, State of Idaho,
Canyon County. Hon. Dennis E. Goff and Bradly S. Ford, District Judges.
Judgment of conviction for possession of a controlled
substance, vacated and remanded.
Molly J. Huskey, State Appellate Public Defender; Eric D. Fredericksen, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Rebekah A. Cudé, Deputy
Attorney General, Boise, for respondent.
________________________________________________
MELANSON, Judge
Aniceto Betancourt, IV, appeals from his judgment of conviction for possession of a
controlled substance. For the reasons set forth below, we vacate the judgment of conviction and
remand for a new trial.
I.
FACTS AND PROCEDURE
Betancourt was stopped by an officer for failure to display a front license plate. Upon
approaching the vehicle, the officer asked Betancourt where he was driving and where he had
been prior to the stop. Betancourt responded that he had been sleeping in the passenger’s seat of
the vehicle when he heard gun shots, jumped into the driver’s seat, and drove away. Betancourt
also admitted to carrying a concealed weapon for which he had a permit. The officer asked
permission to retrieve the weapon from the vehicle and Betancourt declined. The officer noticed
a strong odor of alcohol on Betancourt’s breath and placed him under arrest on suspicion of
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driving under the influence. An inventory search of the vehicle after Betancourt’s arrest revealed
methamphetamine under the floor mat of the passenger’s seat. Officers took a sample of
Betancourt’s blood, which later tested positive for methamphetamine.
Betancourt was charged with driving under the influence, I.C. § 18-8004; carrying a
concealed weapon while under the influence of alcohol or drugs, I.C. § 18-3302B; and
possession of a controlled substance, I.C. § 37-2732(c)(1). Betancourt pled guilty to driving
under the influence and carrying a concealed weapon while under the influence. Prior to trial on
the remaining charge, Betancourt filed a motion in limine. Betancourt argued that testimony
regarding the results of his positive blood test for methamphetamine should not be presented to
the jury because the test was not relevant and, if relevant, would be prejudicial and confuse the
jury. Further, Betancourt also asserted, by way of a motion on the morning of trial, that a
redacted video of the traffic stop was irrelevant and prejudicial. The district court held that both
the blood test results and the video were admissible. During trial, the officer testified that, after
initially cooperating with the officer and answering questions, Betancourt refused to answer any
further questions without a lawyer present. On the following day, trial counsel filed a motion for
a mistrial in response to the officer’s statements regarding Betancourt’s refusal to answer
questions. The district court denied the motion. Finally, during closing arguments, the
prosecutor asked the jury to pay close attention to Betancourt’s demeanor during the video and to
note that Betancourt did not want the officer to search the vehicle. The jury found Betancourt
guilty of possession of a controlled substance. Betancourt appeals.
II.
ANALYSIS
Betancourt raises six issues on appeal. First, he argues that the district court erred by
admitting the redacted video of his traffic stop. 1 Second, he asserts that the district court erred
by admitting testimony regarding the results of Betancourt’s positive blood test for
methamphetamine. Third, he contends that there was insufficient evidence to support the jury’s
guilty verdict. Fourth, he argues that the testimony regarding his refusal to answer further
1
Prior to trial, the district court viewed the video and ordered that portions of Betancourt’s
encounter with police be redacted because such portions were either irrelevant or that their
probative value was outweighed by unfair prejudice. On appeal, Betancourt challenges all
portions of the video shown to the jury at trial.
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questions violated his constitutional rights. Fifth, he argues that the state’s comments during
closing argument regarding Betancourt’s refusal to allow officers to search the vehicle
constituted prosecutorial misconduct. Finally, Betancourt contends that, even if this Court
concludes that the asserted errors are harmless, the cumulative effect of the errors should result
in the vacation of his judgment of conviction for possession of a controlled substance.
A. Evidentiary Issues
First, we address Betancourt’s argument that the district court erred by allowing the jury
to view a redacted video of his traffic stop and by admitting the results of his positive blood test
for methamphetamine.
1. Video of the traffic stop
The district court determined that the redacted video of the traffic stop was probative of
Betancourt’s knowledge of and intent to possess the methamphetamine found in the vehicle. The
video begins with the officer’s questioning of Betancourt regarding the vehicle’s missing front
license plate, Betancourt’s whereabouts prior to the stop, and whether Betancourt had any
weapons in the vehicle. During this questioning, Betancourt admits to the officer that he had
been sleeping in the passenger’s seat of the vehicle when he heard gunshots and then jumped into
the driver’s seat in order to flee from the area where shots were fired. Later in the video,
Betancourt states that he rode with the driver in the car from Betancourt’s house in Boise to
Caldwell, fell asleep in the passenger’s seat, and only drove the vehicle once the driver exited the
car and Betancourt heard gunshots. Betancourt elaborates with more and more details of his
story as the officer continues to question him.
These portions of the redacted video are relevant. First, they demonstrate that Betancourt
was in the particular area in the vehicle where the methamphetamine was found. Further, the
portions of the video depicting Betancourt’s elaborate and convoluted explanation for his
previous whereabouts are also relevant to demonstrate his consciousness of guilt. Thus,
Betancourt’s behavior on the redacted video has the tendency to make Betancourt’s knowledge
of the drugs in the vehicle more probable. See I.R.E. 401; State v. Hocker, 115 Idaho 544, 547,
768 P.2d 807, 810 (Ct. App. 1989).
However, as we will explain in more detail below with reference to the prosecutor’s
closing statements, the use of the portions of the video depicting Betancourt’s refusal to consent
to a search of the vehicle was improper. While other portions of the video were relevant to
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establish Betancourt’s proximity to the methamphetamine and his consciousness of guilt, the use
of Betancourt’s refusal to allow the officer to search the vehicle was inadmissible.
2. Blood test evidence
Next, we turn to Betancourt’s argument that the blood test evidence was irrelevant and
prejudicial under I.R.E. 403(b). The district court held that the blood test evidence was relevant
to demonstrate constructive possession because it established Betancourt’s knowledge of the
methamphetamine discovered in the passenger’s compartment of the vehicle. We agree. See
State v. Williams, 134 Idaho 590, 592-93 6 P.3d 840, 842-43 (Ct. App. 2000) (holding that
evidence of prior methamphetamine use was relevant to the question of defendant’s intent to use
drug paraphernalia to inject methamphetamine). Evidence of the presence of methamphetamine
in Betancourt’s blood, alone, does not demonstrate his knowledge of the drug in the vehicle
beyond a reasonable doubt. However, the blood test evidence makes Betancourt’s knowledge of
the methamphetamine more likely. Therefore, testimony regarding the results of Betancourt’s
blood test was relevant to Betancourt’s knowledge of methamphetamine. The determination as
to whether the blood test’s probative value is outweighed by unfair prejudice is left to the
discretion of the district court.
B. Sufficiency of the Evidence
Betancourt contends that there was insufficient evidence to support the jury’s guilty
verdict. Therefore, we must consider whether there was sufficient evidence to support the jury’s
finding of guilt. See State v. Moore, 148 Idaho 887, 893-94, 231 P.3d 532, 538-39 (Ct. App.
2010). Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt
will not be overturned on appeal where there is substantial evidence upon which a reasonable
trier of fact could have found that the prosecution sustained its burden of proving the essential
elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957
P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct.
App. 1991). We will not substitute our view for that of the trier of fact as to the credibility of the
witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn
from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683,
684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light
most favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson,
121 Idaho at 104, 822 P.2d at 1001.
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In order to convict a defendant of possession of a controlled substance, the state does not
have to establish actual physical possession of the substance, but need only prove that the
defendant had such dominion and control over the substance to establish constructive possession.
State v. Segovia, 93 Idaho 594, 598, 468 P.2d 660, 664 (1970). What is crucial to the state’s
proof is a sufficient showing of a nexus between the accused and the controlled substance. State
v. Fairchild, 121 Idaho 960, 969, 829 P.2d 550, 559 (Ct. App. 1992). Knowledge of the
existence of controlled substances may be inferred through circumstances. State v. Clayton, 101
Idaho 15, 16, 607 P.2d 1069, 1070 (1980).
The state presented evidence that Betancourt was the only occupant of the vehicle at the
time of the traffic stop, had recently been sleeping and riding in the passenger’s compartment
where the methamphetamine was found, appeared nervous during his encounter with the officer,
provided a confusing and incredible explanation for his whereabouts prior to the stop, and failed
a blood test for methamphetamine. Viewing all of the evidence presented at trial in a light most
favorable to the state, we conclude that there was sufficient evidence for a reasonable jury to find
a nexus between Betancourt and the methamphetamine found in the vehicle to support a finding
of constructive possession. The circumstances surrounding the stop, along with Betancourt’s
behavior and evidence that he was in exclusive control of the vehicle, supported the jury’s
finding that Betancourt had knowledge, dominion, and control over the methamphetamine in the
vehicle. Thus, there was substantial evidence upon which a reasonable jury could have found
that the state sustained its burden of proving the essential elements of possession of a controlled
substance beyond a reasonable doubt.
C. Prosecutorial Misconduct
Betancourt contends that the prosecutor impermissibly commented on the exercise of
Betancourt’s Fourth Amendment right to be free from unreasonable searches and seizures. As
demonstrated by the redacted video shown to the jury at trial, Betancourt declined the officer’s
request to retrieve Betancourt’s weapon from the vehicle, stating that he was not going to
consent to a search and that he wanted to protect his civil rights. On appeal, Betancourt asserts
that the state made the following impermissible comments regarding this refusal during closing
argument:
But there’s more. Watch the video. You saw his demeanor on the video.
He did not want those troopers to search that vehicle. His story is incredible. It
doesn’t make any sense. It changes. All that you can consider.
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(emphasis added). In addition, during rebuttal to Betancourt’s closing argument, the prosecutor
also stated:
But this case, the evidence you have heard is a lot more than mere
proximity. Listen to the video, watch his demeanor. It speaks volumes about his
concern about these troopers not getting into that car. He’s trying to lead them
astray and keep them out of that vehicle. That’s clear.
(emphasis added). There was no contemporaneous objection to either of these comments.
Betancourt asserts that these comments urged the jury to infer his guilt from the invocation of his
Fourth Amendment right to refuse to consent to the search of the vehicle.
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. 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.
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, as in this case, 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) the error is clear or
obvious without the need for reference to any additional information not contained in the
appellate record; and (3) the error affected the outcome of the trial proceedings. Id. at 226, 245
P.3d at 978.
The Idaho Supreme Court addressed an instance of prosecutorial misconduct similar to
the comments made by the prosecutor in this case in State v. Christiansen, 144 Idaho 463, 163
6
P.3d 1175 (2007). There, the Court held that the prosecutor’s questioning of an officer regarding
Christiansen’s refusal to consent to a search of his business constituted fundamental error. Id. at
470-71, 163 P.3d at 1182-83. The Court held that the same rationale for excluding evidence of
an accused’s invocation of his or her Fifth Amendment rights applied to the invocation of a
defendant’s Fourth Amendment rights. Id. at 470, 163 P.3d at 1182. Specifically, the Court
relied on prior United States Supreme Court and Idaho Supreme Court cases for the proposition
that reference to a defendant’s invocation of a constitutional right deprives an accused of his or
her constitutional right to due process and a fair trial. Id.; see also Griffin v. California, 380 U.S.
609, 615 (1965); State v. White, 97 Idaho 708, 715, 551 P.2d 1344, 1351 (1976).
Christiansen was decided prior to Perry and, as such, the Perry fundamental error
analysis was not applied to the facts in Christiansen. However, the reasoning in Christiansen
that a prosecutor’s use of a defendant’s invocation of his or her Fourth Amendment right is
analogous to the impermissible use of a defendant’s invocation of his or her Fifth Amendment
rights, applies to the first prong of the Perry analysis in this case--whether the error complained
of violates one or more of the defendant’s unwaived constitutional rights. Other jurisdictions
have addressed this issue and have also concluded that a prosecutor’s reference to a defendant’s
refusal to consent to search constitutes a violation of the defendant’s right to a fair trial. See
United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978) (stating that, “if the government
could use such a refusal against the citizen, an unfair and impermissible burden would be placed
upon the assertion of a constitutional right”); Padgett v. State, 590 P.2d 432, 434-35 (Alaska
1979) (the constitutional right to refuse to consent to a search would effectively be destroyed if
the exercise of such a right could be used as evidence of guilt); State v. Palenkas, 933 P.2d 1269,
1280 (Ariz. Ct. App. 1996) (invocation of a constitutional right is probative of nothing other than
the defendant’s awareness of his or her constitutional rights). Based on the reasoning of the
Idaho Supreme Court and the other above-listed authorities, we conclude that Betancourt has
established the first prong of Perry because the prosecutor’s comments during closing argument
and rebuttal violated Betancourt’s constitutional right to a fair trial. 2
The state asserts that Betancourt has failed to demonstrate the second prong of the
fundamental error test because the error is not clear from a review of the record. Specifically,
2
Based upon the same reasoning, the portion of the video which Betancourt refused to
consent to a search was inadmissible.
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the state argues that the prosecutor’s comments are ambiguous, at best, and could not be
considered to be plain error. However, the prosecutor’s statement that Betancourt “did not want
those troopers to search that vehicle” is clearly a comment on Betancourt’s statements in the
video refusing to consent to a search. Similarly, the prosecutor’s statements during rebuttal also
refer to Betancourt’s concern about keeping the officers out of the vehicle. While the prosecutor
focused on Betancourt’s overall demeanor during the stop, it is plain from a review of the record
that the prosecutor also requested that the jury pay particular attention to Betancourt’s refusal to
allow the search as evidence of his knowledge of methamphetamine in the car. Therefore, the
second prong of Perry has also been established.
Under the third prong of Perry, in order to conclude that the prosecutor’s comments
constituted fundamental error, the defendant must demonstrate that there is a reasonable
possibility that the impermissible comments affected the outcome of the trial. Perry, 150 Idaho
at 226, 245 P.3d at 978. As mentioned above, in order to prove possession of a controlled
substance, the state must prove that the defendant has such dominion and control over the
substance to establish constructive possession. Segovia, 93 Idaho at 598, 468 P.2d at 664. A
sufficient showing of a nexus between the accused and the controlled substance is central to this
requirement. Fairchild, 121 Idaho at 969, 829 P.2d at 559. Further, knowledge of the existence
of controlled substances may be inferred through circumstances. Clayton, 101 Idaho at 16, 607
P.2d at 1070.
The state’s evidence of a nexus between Betancourt and the methamphetamine found
under the floor mat in the vehicle consisted of his admission to sleeping in the passenger’s seat
prior to the stop, a positive blood test for methamphetamine, his admission to being the last
person to drive the car prior to the search, and his unusual and evasive behavior during the traffic
stop. The officer did not testify that Betancourt appeared to be under the influence of
methamphetamine and did not question Betancourt about controlled substances during the stop.
Indeed, the methamphetamine was discovered in the vehicle during a subsequent inventory
search, not during the stop itself. The pivotal issue in this case was Betancourt’s knowledge of
the methamphetamine. Perhaps the state’s strongest evidence of Betancourt’s knowledge was
his refusal to allow the officer to search the vehicle. As a result, we cannot conclude beyond a
reasonable doubt that the prosecutor’s impermissible comments regarding Betancourt’s
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invocation of his Fourth Amendment rights did not contribute to the jury’s verdict. Accordingly,
we vacate Betancourt’s judgment of conviction for possession of a controlled substance. 3
III.
CONCLUSION
The admissible evidence introduced by the state was sufficient to support the jury’s
finding of guilty. However, the prosecutor’s improper comment during closing argument
regarding Betancourt’s refusal to consent to a search of the vehicle constituted fundamental
error. Accordingly, we vacate Betancourt’s judgment of conviction and remand for a new trial.
Chief Judge GRATTON and Judge LANSING, CONCUR.
3
Concerning Betancourt’s remaining arguments on appeal, the state concedes that the
officer should not have testified about Betancourt’s refusal to answer questions prior to his
arrest. Because we are vacating Betancourt’s judgment of conviction on other grounds, we need
not address the state’s contention that the officer’s testimony regarding Betancourt’s refusal to
answer questions constituted harmless error. For this reason, we also decline to address
Betancourt’s cumulative error argument.
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