IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37241
STATE OF IDAHO, ) 2011 Opinion No. 25
)
Plaintiff-Respondent, ) Filed: May 4, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
THERESA NORTON, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Second Judicial District, State of Idaho,
Clearwater County. Hon. John H. Bradbury, District Judge.
Judgment of conviction for arson in the first degree, conspiracy to commit arson
in the first degree, and insurance fraud, affirmed.
Nevin, Benjamin, McKay & Bartlett LLP, Boise for appellant. Dennis A.
Benjamin argued.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
________________________________________________
PERRY, Judge Pro Tem
Theresa Norton appeals from the judgment of conviction entered upon a jury verdict
finding her guilty of arson in the first degree, Idaho Code §§ 18-802 and 18-204, conspiracy to
commit arson in the first degree, I.C. §§ 18-802 and 18-1701, and insurance fraud, I.C. § 41-
293(1)(a). We affirm.
I.
FACTS AND PROCEDURAL BACKGROUND
In January 2009, Norton purchased a house in Pierce, Idaho, for $85,000. She obtained
an insurance policy with Safeco, in the amount of $240,000 for the house; $180,000 for personal
property; and $24,000 for outbuildings. At the time the house was purchased, Norton was living
in Kamiah with her mother, three sons, and grandfather. Norton began remodeling the Pierce
house, moved in some items, and planned to move in permanently in June of 2009 after her
children finished school for the year.
1
On April 8, 2009, the Pierce Fire Department responded to a call that a fire had occurred
at Norton’s residence in Pierce. When the fire department entered the residence, they noticed a
slashed couch in the living room area and concluded that the fire had started on a bed in the
living area in the basement. Based upon the situation, the fire chief called the State Fire
Marshal’s Office. The fire marshal determined that the fire likely occurred the day before the
fire department was called; that the fire started on the bed; that a plastic gas cap was found; that
it was likely that an accelerant, such as gasoline, was used; that the smoke pattern indicated that
the door at the top of the stairs leading into the basement was shut at the time of the fire; that the
cover to the attic space had been removed; and that had the door not been shut, a flume effect
would have likely occurred causing the house to be completely destroyed.
The fire marshal ruled out any possibilities of an accidental fire and concluded that the
fire was intentionally set. Sergeant Mitchell Jared, of the Clearwater County Sheriff’s Office,
testified that he also responded and that when he arrived Norton told him that she suspected her
husband, Daryl, had started the fire. Tracy Johnson, a special investigator with Safeco who
investigates potential insurance fraud claims, testified that Norton advised Safeco immediately
that she suspected her soon-to-be ex-husband as starting the fire. Johnson testified that Norton
felt very strongly that Daryl had set the fire.
During the course of the investigation, Sergeant Jared interviewed Norton several times
about her activities on April 7, 2009, the day investigators believed the fire started. Sergeant
Jared also interviewed Jason Stacy, a friend of Norton’s, who had helped her with some
remodeling, as well as moving things into the Pierce house. Both Norton and Stacy insisted that
Stacy was in Kamiah between 5:00 and 7:00 p.m., but witnesses placed him in Pierce at that
time. After further interrogation, Stacy ultimately confessed to starting the fire at Norton’s
request.
Norton was arrested and charged with arson in the first degree, conspiracy to commit
arson in the first degree, and insurance fraud. The jury convicted her on each charge. The
district court imposed a unified sentence of five years, with one and one-half years determinate.
Norton appeals.
2
II.
ANALYSIS
Norton raises eight issues on appeal. Five of those issues involve allegations of
fundamental error. Specifically, she asserts that the State failed to provide notice of its intent to
introduce other acts evidence pursuant to Idaho Rule of Evidence 404(b); that the State
introduced large amounts of other acts evidence in violation of the Idaho Rules of Evidence; that
the State introduced an interrogation transcript into evidence in violation of the Idaho Rules of
Evidence; that the admission of a police officer’s testimony regarding truthfulness violated her
right to a fair trial; and that the prosecutor committed misconduct by introducing inadmissible
evidence and by making improper opening and closing arguments. She also argues that the
district court erred in denying, in part, her motion in limine, as well as in denying her motion for
a mistrial. She further contends that the cumulative effect of all of the trial errors and
prosecutorial misconduct requires reversal. We address each of these contentions in turn.
A. Fundamental Error
The general rule in Idaho is that an appellate court will not consider an alleged error on
appeal in the absence of a timely objection at trial. State v. Thompson, 132 Idaho 628, 634, 977
P.2d 890, 896 (1999). The Idaho Supreme Court recently explained the purpose of the
contemporaneous objection requirement and why appellate courts generally do not consider
alleged errors not preserved through an objection at trial, as follows:
“This limitation on appellate-court authority serves to induce the timely raising of
claims and objections, which gives the [trial] court the opportunity to consider
and resolve them.” Puckett v. U.S., --- U.S. ----, ----, 129 S.Ct. 1423, 1428, 173
L.Ed.2d 266 (2009). Ordinarily, the trial court is in the best position to determine
the relevant facts and to adjudicate the dispute. Id. “In the case of an actual or
invited procedural error, the [trial] court can often correct or avoid the mistake so
that it cannot possibly affect the ultimate outcome.” Id. Furthermore, requiring a
contemporaneous objection prevents the litigant from sandbagging the court, i.e.,
“remaining silent about his objection and belatedly raising the error only if the
case does not conclude in his favor.” Id.
State v. Perry, 150 Idaho 209, 224, 245 P.3d 961, 976 (2010).
“[W]hen an error has not been properly preserved for appeal through objection at trial,
the appellate court’s authority to remedy that error is strictly circumscribed to cases where the
error results in the defendant being deprived of his or her Fourteenth Amendment due process
right to a fair trial in a fair tribunal.” Perry, 150 Idaho at 224, 245 P.3d at 976. Such cases
3
invoke the doctrine of fundamental error, which is “grounded in a criminal defendant’s due
process right to a fair trial.” State v. Kelly, 106 Idaho 268, 277, 678 P.2d 60, 69 (Ct. App. 1984).
As such, the exception to the general rule that appellate courts will not consider alleged errors
not preserved through an objection at trial arises in criminal cases where the appellant
demonstrates fundamental error. See State v. Adams, 147 Idaho 857, 861, 216 P.3d 146, 150 (Ct.
App. 2009). In order to raise a claim of fundamental error that may be considered for the first
time on appeal:
[T]he defendant bears the burden of persuading the appellate court that the alleged
error: (1) violates one or more of the defendant’s unwaived constitutional rights;
(2) plainly exists (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) was not harmless. If the defendant persuades the
appellate court that the complained of error satisfies this three-prong inquiry, then
the appellate court shall vacate and remand.
Perry, 150 Idaho at 228, 245 P.3d at 980.
Norton claims that a number of evidentiary errors occurred at trial and that “a trial as
infected with inadmissible evidence as this trial is not a fair trial.” She argues that these errors
violated her right to due process and, as such, constitute fundamental error that should be
reviewed on appeal. Accordingly, Norton requests that this Court address over thirty alleged
errors, address them again in the context of prosecutorial misconduct, and then classify them all
as fundamental error such that they can be reviewed on appeal.
1. I.R.E. 404(b) claims
Norton lists approximately twenty-eight instances of alleged fundamental error
contending that the State inappropriately introduced evidence of other crimes, wrongs, or acts in
violation of I.R.E. 404(b). Norton contends that fundamental error applies in two ways to the
evidence of other acts. First, she argues that the introduction of inadmissible evidence resulted
in an unfair trial in violation of her state and federal constitutional rights to due process. Second,
she claims that the introduction of such inadmissible evidence without notice, without limiting
instructions, and for improper purposes constitutes prosecutorial misconduct. We conclude that
Norton has failed to demonstrate that the introduction of the allegedly inadmissible evidence
4
violated “one or more of [her] unwaived constitutional rights.” 1 Perry, 150 Idaho at 228, 245
P.3d at 980.
Norton identifies the constitutional violation at issue here as a violation of her due
process right to a fair trial in a fair tribunal. In essence, Norton claims that the violation of an
Idaho Rule of Evidence, specifically I.R.E. 404(b), amounts to a violation of her due process
right to a fair trial in a fair tribunal. However, the requirements set forth in I.R.E. 404(b),
regarding admissibility and notice, are not of constitutional import. Rather, they are required by
a rule of evidence. Norton contends that not only did the challenged evidence violate
I.R.E. 404(b), but that it was not relevant under I.R.E. 401 and, therefore, inadmissible under
I.R.E. 402. She also contends that even if the evidence were relevant, it still should have been
excluded pursuant to I.R.E. 403 because its probative value is substantially outweighed by the
danger of unfair prejudice. The Court in Perry stated 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.” Perry, 150 Idaho at 226, 245 P.3d at 978. The
alleged errors raised on appeal here are all grounded in the Idaho Rules of Evidence. This Court
will not entertain attempts to characterize alleged evidentiary errors, to which no objection was
made at trial, as a due process violation of the right to a fair trial in a fair tribunal. “Appellate
review of a claimed error to which no objection was made in the trial court on the basis that it
constituted fundamental error is the exception, not the rule, and the fundamental error doctrine is
not a mechanism for criminal defendants to obtain judicial review of every plausible claim of
trial error.” Adams, 147 Idaho at 861, 216 P.3d at 150.
1
Norton raises three different claims regarding I.R.E. 404(b) evidence. First, she argues
that all evidence of other bad acts should have been excluded because the State failed to provide
notice under I.R.E. 404(b). Second, she argues that the large amount of bad acts evidence was
admitted in violation of the Idaho Rules of Evidence and violated her right to a fair trial. Third,
Norton contends that the prosecutor committed misconduct by failing to provide notice of
I.R.E. 404(b) evidence, as well as by introducing large amounts of irrelevant and unfairly
prejudicial evidence. While all of the claims are stated differently, they essentially involve the
same contention, i.e. that the evidence should not have been admitted, and that admitting it
violated Norton’s right to a fair trial. Although we conclude that Norton has failed to establish
fundamental error as to any of her I.R.E. 404(b) claims, Norton’s prosecutorial misconduct
claims will all be addressed below.
5
We also note that Norton provides little analysis for each of the alleged errors. Instead,
she identifies several alleged errors, lumps them together, and attempts to argue that the
admission of such a large amount of bad acts evidence resulted in a violation of her due process
right to a fair trial. While she also argues cumulative error, her primary argument groups several
of the alleged errors together. This Court will not pore through a trial transcript and evaluate
each question and answer in order to determine whether there is objectionable material, let alone
add them up and analyze them as a collective due process violation. As noted above, one of the
purposes of the contemporaneous objection requirement is to avoid such a result. See Perry, 150
Idaho at 224, 245 P.3d at 976 (the limitation on appellate-court authority to address issues not
objected to at trial “serves to induce the timely raising of claims and objections, which gives the
[trial] court the opportunity to consider and resolve them,” as the trial court is ordinarily “in the
best position to determine the relevant facts and to adjudicate the dispute”). Norton has failed to
establish a violation of one or more of her unwaived constitutional rights and, therefore, has not
demonstrated fundamental error. 2
Finally, we note that the Idaho Supreme Court, employing the pre-Perry definition of
fundamental error, addressed a similar argument as that presented on appeal with respect to
alleged I.R.E. 404(b) errors, in State v. Cannady, 137 Idaho 67, 44 P.3d 1122 (2002). The Court
concluded that “[a]n abuse of discretion in admitting evidence is a trial error and does not go to
the foundation of the case or take from the defendant a right which was essential to his defense.”
Id. at 72-73, 44 P.3d at 1127-28. The Court rejected the invitation to address the issue because
there was no objection and the admission of the evidence did not constitute fundamental error.
Id. See also State v. Johnson, 126 Idaho 892, 896, 894 P.2d 125, 129 (1995) (concluding that the
defendant failed to object to the challenged evidence on the basis of I.R.E. 404(b) at trial and that
the alleged error in admitting the testimony did not rise to the level of fundamental error); State
2
While we do not address the alleged errors on appeal, we also note that the majority of
the errors presented in the briefing do not even implicate I.R.E. 404(b). For instance, Norton
contends that much of the alleged other acts evidence was evidence of theft-like activities. She
identifies this evidence as “failure to make mortgage payments; frivolous law suits; plans to short
sell a house; attempts to sell Mr. Norton’s property; taking money and property from
Mr. Norton; lying regarding marital status on the deed to the Pierce house; and living solely on
child support and social security disability.” It is difficult to envision how evidence of trying to
short sell a house implicates Norton’s character in any way.
6
v. Rozajewski, 130 Idaho 644, 645, 945 P.2d 1390, 1391 (Ct. App. 1997) (applying Johnson and
concluding that where the defendant fails to object at trial under I.R.E. 404(b), the trial court’s
admission of the evidence does not rise to the level of fundamental error). Employing the new
definition of fundamental error, as set forth in Perry, does not demand a different result and,
therefore, we will not address the issue further.
2. Statements on credibility
Norton contends that the admission of the investigating officer’s testimony allegedly
commenting on the truthfulness of other witnesses, i.e. Stacy and Norton, violated her due
process right to a fair trial. She argues that because credibility determinations are for the jury to
make, statements by one witness regarding the truthfulness of another witness are prohibited.
She also asserts that admission of testimony from one witness as to whether another witness is
telling the truth may violate the defendant’s “fundamental right to a fair trial.”
Norton challenges two statements made by the investigating officer, Sergeant Jared.
With respect to the first statement, the prosecutor asked a question regarding the interrogation of
Stacy. Jared testified immediately following Stacy’s testimony, and the prosecutor’s question
referred to that previous testimony, as follows:
[Prosecutor]: . . . . You indicated and we’ve heard some testimony about
Jason Stacy, in essence, cracking and telling you the story
-- the truth?
[Jared]: Yes.
[Prosecutor]: All right. Was that before or after the arrest of Theresa
Norton?
[Jared]: That was before.
[Prosecutor]: And did she know -- at that time to your knowledge was
she aware that Jason Stacy had cracked?
[Jared]: No.
[Prosecutor]: Did she continue to insist after her arrest that Jason Stacy
was with her in Kamiah between 5:00 or 5:30 and 7:00 or
7:30 on April 7th?
[Jared]: I believe so.
Norton argues that Jared’s response of “Yes” was an affirmation that “Mr. Stacy was
telling the truth when he said that he and Ms. Norton set the fire” and that it was prohibited
testimony of one witness testifying about whether another witness is telling the truth. Even if we
could make the inferential leap proposed by Norton that Jared’s ambiguous response to an even
more ambiguous question could somehow be read as a comment on Stacy’s credibility, Norton
7
has not demonstrated that the statement violated one or more of her unwaived constitutional
rights.
Norton contends, citing State v. Johnson, 119 Idaho 852, 810 P.2d 1138 (Ct. App. 1991),
that Jared’s statement constituted a statement by one witness as to whether another witness is
telling the truth and that admission of the testimony may violate her “fundamental right to a fair
trial.” She argues, citing Perry, that the denial of a fair trial is a denial of due process as
guaranteed by the state and federal constitutions. We first note that an appellant cannot simply
cite to Perry, in one sentence, for the general proposition that the due process right to a fair trial
in a fair tribunal has been violated, and then, in another sentence, bootstrap some alleged trial
error to Perry in an attempt to establish a constitutional violation. Were we to allow such an
approach, the first prong of Perry would always be satisfied and would, therefore, provide no
limitation on the types of claims that could be raised under the fundamental error doctrine as all
claims can be couched in terms of a constitutional violation. This is not consistent, however,
with Perry’s statement that “contrary to the federal plain error rule, in Idaho a trial error that
does not violate one or more of the defendant’s constitutionally protected rights is not subject to
reversal under the fundamental error doctrine.” Perry, 150 Idaho at 226, 245 P.3d at 978.
We acknowledge, as did the Idaho Supreme Court, in Perry:
that 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.” People v. Barnes, 2 Idaho 148, 150, 9 P. 532, 533
(1886). Lay witnesses are not permitted to testify as to matters of credibility.
Reynolds v. State, 126 Idaho 24, 30-31, 878 P.2d 198, 204-05 (Ct. App. 1994).
Furthermore, we have held that “expert testimony which does nothing but vouch
for the credibility of another witness encroaches upon the jury’s vital and
exclusive function to make credibility determinations, and therefore does not
‘assist the trier of fact’ as required by Rule 702.” State v. Perry, 139 Idaho 520,
525, 81 P.3d 1230, 1235 (2003) (quoting U.S. v. Charley, 189 F.3d 1251, 1267
(10th Cir. 1999)).
Perry, 150 Idaho at 229, 245 P.3d at 981. However, questions regarding whether lay and/or
expert opinion testimony constitutes impermissible vouching for the credibility of another
witness are inherently evidentiary issues. We recognized as much in State v. Aspeytia, 130 Idaho
12, 936 P.2d 210 (Ct. App. 1997). In that case, the appellant argued that the trial court erred in
allowing the testimony of two doctors, who testified that the victim had been sexually molested,
because their opinions were not based upon physical evidence and therefore amounted to nothing
8
more than an impermissible vouching for the credibility of the victim. Id. at 14, 936 P.2d at 212.
Having failed to object to the testimony at trial, Aspeytia argued, as Norton does here, that the
admission of the testimony could be reviewed for fundamental error under Johnson, 119 Idaho
852, 810 P.2d 1138. We acknowledged “that there is a lack of clarity in the case law of this state
as to whether the admission of evidence without objection at trial may ever be reviewed for
fundamental error on appeal.” 3 We concluded in that case that it was “unnecessary that we
determine whether the fundamental error doctrine may be applied to evidentiary issues,”
addressing the admissibility of the evidence instead in the context of Aspeytia’s ineffective
assistance of counsel claim. 4 We now conclude that the admission of evidence without objection
3
We cited the following cases highlighting this lack of clarity:
Compare State v. Walters, 120 Idaho 46, 59, 813 P.2d 857, 870 (1991)
(Boyle, J., concurring) (holding that admission, without objection, of fire
investigator’s opinion, that the defendant was the person who started the fire was
fundamental error); and Johnson, supra, (holding that physician’s opinion,
elicited without objection, that the victim had been sexually molested was
fundamental error requiring reversal of the conviction), with McAway, 127 Idaho
at 60-61, 896 P.2d at 968-69 (refusing to consider challenge to the admissibility
of a videotape that was raised for the first time on appeal, the Court stating that an
abuse of discretion in admitting evidence is a trial error and “does not go to the
foundation of the case or take from the defendant a right which was essential to
his defense”); State v. Higgins, 122 Idaho 590, 596, 836 P.2d 536, 542 (1992)
(declining to consider an issue not presented to the trial court concerning expert
testimony about the profile of a sex offender because “any error in admitting the
testimony was not fundamental error, because it dealt with the admission of
evidence and did not go to the foundation of the case or take from Higgins a right
that was essential to his defense.”); and State v. Bingham, 116 Idaho 415, 423,
776 P.2d 424, 432 (1989) (holding that error in admitting expert opinion would
not constitute fundamental error).
Aspeytia, 130 Idaho at 14-15, 936 P.2d at 212-213.
4
While the Aspeytia Court acknowledged a lack of clarity in the case law and thus
declined to address the issue under fundamental error, we note that the two cases cited in
Aspeytia, Walters and Johnson, for the proposition that the admission of evidence without
objection may be reviewed for fundamental error on appeal, are certainly the minority. Cf.
Cannady, 137 Idaho at 72-73, 44 P.3d at 1127-28 (see above); State v. Gertsch, 137 Idaho 387,
49 P.3d 392 (2002) (concluding that neither the presence of victim/witnesses during trial, nor the
un-objected to testimony of an expert witness testifying regarding securities law and its
application to the facts of the case, constituted fundamental error as it did not affect the
9
foundation or basis of the defendant’s rights); State v. Moore, 131 Idaho 814, 965 P.2d 174
(1998) (concluding that the admission of the State’s experts’ testimony that the victim had been
sexually abused would not be reviewed on appeal in light of the failure to object at trial, as the
erroneous admission of expert testimony is not subject to a fundamental error analysis); State v.
Evans, 129 Idaho 758, 932 P.2d 881 (1997) (concluding that the failure to object to the
admissibility of an exhibit pursuant to I.R.E. 1006 precluded review of issue on appeal, as a trial
court’s abuse of discretion in admitting evidence does not constitute fundamental error); State v.
Davis, 127 Idaho 62, 896 P.2d 970 (1995) (concluding that the social worker’s testimony that the
victim suffered from battered woman syndrome and post-traumatic stress disorder did not
constitute fundamental error because admission of expert testimony is not fundamental error);
State v. McAway, 127 Idaho 54, 60-61, 896 P.2d 962, 968-69 (see above); State v. Fields, 127
Idaho 904, 911, 908 P.2d 1211, 1218 (1995) (concluding that eyewitness identification of the
defendant was not tainted by media publication of the defendant’s photograph and that any
prejudice that may have resulted from admission of the witnesses’ identifications was speculative
and did not rise to the level of fundamental error); Johnson, 126 Idaho at 896, 894 P.2d at 129
(see above); State v. Babb, 125 Idaho 934, 877 P.2d 905 (1994) (concluding that even if the trial
court abused its discretion in admitting lay witness testimony concerning conduct indicating
whether the victim was contemplating suicide, it was not fundamental error); State v. Follinus,
124 Idaho 26, 855 P.2d 863 (1993) (concluding that the use of telephone conversations recorded
in violation of Washington state law was not a constitutional violation and did not require
exclusion of the evidence, and that even if it were error, it was not fundamental error as it did not
go to the foundation or basis of the defendant’s rights); Higgins, 122 Idaho at 596, 836 P.2d at
542 (see above); Bingham, 116 Idaho at 423, 776 P.2d at 432 (see above); State v. Sanchez, 147
Idaho 521, 211 P.3d 130 (Ct. App. 2009) (concluding that even if admission of a 911 recording
was erroneous, appellant failed to object at trial, and admission of the evidence did not rise to the
level of fundamental error); State v. Smith, 135 Idaho 712, 23 P.3d 786 (Ct. App. 2001)
(concluding that the admission of expert testimony that the markings left on the .22 casings
found in the victims’ home was consistent with marks created by the defendant’s gun was not
subject to fundamental error analysis because it did not go to the foundation of the defendant’s
case or take from him a right essential to his defense); State v. Norton, 134 Idaho 875, 11 P.3d
494 (Ct. App. 2000) (concluding that the admission of an exhibit depicting an enlargement of
comparative fingerprints propounded for illustrative purposes did not constitute fundamental
error as an abuse of discretion in admitting evidence does not constitute fundamental error); State
v. Johnson, 132 Idaho 726, 979 P.2d 128 (Ct. App. 1999) (concluding that the admission of
expert testimony of the physician’s assistant who evaluated the defendant at the jail following his
arrest for DUI would not be reviewed on his claim that it violated the physician-patient privilege
was not subject to a fundamental error analysis because it neither goes to the foundation of the
case nor takes from the defendant a right which was essential to his defense); Rozajewski, 130
Idaho at 645, 945 P.2d at 1391 (see above); State v. Lewis, 126 Idaho 282, 882 P.2d 449 (Ct.
App. 1994) (concluding that the admission of a police officer’s testimony regarding an HGN test
administered to the defendant was not fundamental error because it did not go to foundation of
case or take from the defendant a right that was essential to his defense); State v. Roles, 122
Idaho 138, 832 P.2d 311 (Ct. App. 1992) (concluding that the trial court’s decision to admit
10
at trial may not be reviewed for fundamental error on appeal, unless the appellant can establish a
constitutional violation, independent of any alleged evidentiary error. See, e.g., State v. Poland,
116 Idaho 34, 36, 773 P.2d 651, 653 (Ct. App. 1989) (concluding that the admission of testimony
about a defendant’s post-Miranda silence constitutes fundamental error). We believe that this
reflects the current state of the law in Idaho that alleged errors will not be reviewed on appeal
absent an objection at trial, unless the defendant can demonstrate the violation of an unwaived
constitutional right, not a violation of a rule or statute. See Perry, 150 Idaho at 226, 245 P.3d at
978.
In this case, Norton relies upon Johnson for the proposition that a statement by one
witness as to whether another witness is telling the truth may violate the “fundamental right to a
fair trial.” Norton’s reliance, however, is misplaced. In Johnson, we concluded that a doctor
who testified that, in his opinion, the two child victims had been sexually molested, was not
qualified as an expert pursuant to I.R.E. 702. Johnson, 119 Idaho at 854-56, 810 P.2d at 1140-
42. Based upon the State’s argument that the doctor could render his opinion as that of a lay
witness, we also determined that the testimony violated I.R.E. 701. Id. at 857-58, 810 P.2d at
1143-44. We noted that trial counsel’s objection was insufficient to preserve the I.R.E. 701
issue. Nevertheless, in order to address the issue on appeal, we found, under the unique facts and
circumstances of that case, that Johnson’s fundamental right to a fair trial had been violated
where the doctor, who was not qualified to testify as an expert in child sexual abuse, testified that
in his opinion, which was based solely upon the histories provided by the child victims and their
mother, that the children had been molested. Id.
Johnson does not stand for the proposition Norton suggests on appeal and is limited to its
specific facts. Moreover, Johnson’s validity with respect to its conclusion on fundamental error
is questionable as the Idaho Supreme Court had previously determined that “[a]n abuse of
discretion in admitting evidence is a trial error and does not go to the foundation of the case or
take from the defendant a right which was essential to his defense.” Bingham, 116 Idaho at 423,
expert evidence regarding post-traumatic stress disorder and the fact that the victim showed signs
consistent with that disorder did not constitute fundamental error because “an abuse of discretion
in admitting evidence is a trial error and does not go to the foundation of the case or take from
the defendant a right which was essential to his defense”).
11
776 P.2d at 432 overruled on other grounds by State v. Pizzuto, 119 Idaho 742, 775, 810 P.2d
680, 713 (1991). See State v. Moore, 131 Idaho 814, 965 P.2d 174 (1998) (applying Bingham
and concluding that the erroneous admission of expert testimony is not subject to fundamental
error analysis); see also State v. Babb, 125 Idaho 934, 877 P.2d 905 (1994) (applying Bingham
and concluding that even if the trial court abused its discretion in admitting lay witness opinion,
it was not fundamental error).
Therefore, we conclude that Norton has failed to demonstrate that one or more of her
unwaived constitutional rights were violated by Jared’s “Yes” statement. Based upon our
conclusion, we need not address Norton’s claim that Jared’s second statement violated her due
process right to a fair trial as that claim is based upon the same contention, i.e. that a statement
by one witness as to whether another witness is telling the truth may violate the fundamental
right to a fair trial.
3. Interrogation transcript
Norton claims that the admission of the transcript of Stacy’s interrogation constitutes
fundamental error. She argues that like the alleged other acts evidence, admission of the
interrogation transcript was fundamental error in two ways. First, she contends that admission of
the evidence violated I.R.E. 402, 403, 404, 608, and 802. Second, she asserts that presentation of
evidence that was so clearly inadmissible was prosecutorial misconduct. The State counters that
not only has Norton failed to demonstrate fundamental error, but she is also estopped from
raising the issue under the doctrine of invited error because she stipulated to the admission of the
transcript.
The doctrine of invited error applies to estop a party from asserting an error when his or
her own conduct induces the commission of the error. State v. Atkinson, 124 Idaho 816, 819, 864
P.2d 654, 657 (Ct. App. 1993). One may not complain of errors one has consented to or
acquiesced in. State v. Caudill, 109 Idaho 222, 226, 706 P.2d 456, 460 (1985); State v. Lee, 131
Idaho 600, 605, 961 P.2d 1203, 1208 (Ct. App. 1998). In short, invited errors are not reversible.
State v. Gittins, 129 Idaho 54, 58, 921 P.2d 754, 758 (Ct. App. 1996).
While cross-examining Stacy, Norton read portions of the interrogation transcript in an
attempt to question how Stacy’s confession came about and to highlight the fact that he
confessed to Norton’s involvement only after being threatened with several years in prison. The
prosecutor objected to Norton’s characterization of the interrogation and noted that she had
12
skipped portions. The district court overruled the objection, stating that the prosecutor could
clarify any mischaracterization on redirect. Upon concluding her cross-examination of Stacy,
Norton stated that she would stipulate to admission of the interrogation transcript, noting that she
would need to make the motion outside the presence of the jury. Norton stated that some
information included in the transcript, specifically comments about the Oregon fire being arson,
would need to be redacted. The prosecutor did not object to Norton preparing a redacted
transcript.
Norton acknowledges that defense counsel did stipulate to the admission of the
interrogation transcript, but argues that she did not stipulate to its admission without any limiting
instructions. This argument is belied by the record. While the court did not issue any limiting
instructions, this was Norton’s motion and she had the ability to, and actually did, redact the
transcript before it was produced to the jury. Any alleged error that may have occurred was
invited, and Norton cannot now claim error on appeal.
4. Prosecutorial misconduct
Norton also raises a number of claims regarding prosecutorial misconduct. She contends
that the prosecutor committed misconduct when he failed to give I.R.E. 404(b) notice of his
intent to present other acts evidence; when he presented large amounts of irrelevant and unfairly
prejudicial other acts evidence; when he solicited evidence regarding the Oregon fire in violation
of the district court’s order; when he inserted himself as a witness through Stacy’s interrogation;
when he solicited testimony from Sergeant Jared regarding Stacy’s and Norton’s truthfulness;
and during opening, closing, and rebuttal arguments. As noted above, Norton already raised
several of these claims, but re-raises them in the context of prosecutorial misconduct. The State
contends that “[t]his fails to convert claims that are not fundamental error into claims that are
fundamental error.” We agree. Norton has not demonstrated fundamental error with respect to
any of her evidentiary allegations and, therefore, cannot establish prosecutorial misconduct
where her claims are based on those allegations. 5 We do, however, address Norton’s non-
5
The only claims not directly addressed above are Norton’s contentions that the prosecutor
solicited evidence regarding the Oregon fire in violation of the district court’s order and that he
inserted himself as a witness in Stacy’s interrogation. However, the transcript makes clear that
the prosecutor did not solicit any evidence in violation of the court’s order and, as such, did not
commit misconduct. With respect to Norton’s contention that the prosecutor inserted himself as
a witness in Stacy’s interrogation, as previously noted, Norton stipulated to the admission of the
13
evidentiary misconduct claims that the prosecutor committed misconduct during opening and
closing arguments.
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. Where prosecutorial misconduct was not
objected to at trial, Idaho appellate courts may order a reversal only when the defendant
demonstrates that the violation in question qualifies as fundamental error. Perry, 150 Idaho at
227, 245 P.3d at 979.
With respect to her contentions regarding the prosecutor’s opening, closing, and rebuttal
arguments, Norton asserts that the prosecutor committed misconduct by arguing that the case
was like a Jerry Springer episode, that Norton had lied and was a liar, that the defense case was
nothing but red herrings and smoke and mirrors, and by making statements not supported by the
evidence.
During the prosecutor’s opening statement, he stated:
If I was to try to sum up the case that you’re about to hear it would be like
this: This is a case about being caught by the lie. You’ve heard the phrase the
truth will set you free. Well, this is the antithesis of that phrase. In this case as
you will hear the lie will convict her. Also important in this case is motive.
Again, hear evidence in this case about greed and revenge. I know that sounds a
little bit like a Jerry Springer episode, but that is what the evidence is going to
show you in this case. But the motive and what the motive in this case boils down
to [is] greed and revenge.
The prosecutor again referred to the case as a Jerry Springer episode in closing. Norton contends
that the “Jerry Springer theme was inflammatory and misconduct.” However, while the
prosecutor’s reference to Jerry Springer in the context of the themes of greed and revenge may
have been, at most, inappropriate, it is not misconduct.
Norton also argues that the “liar lying theme was misconduct.” She further contends that
because she “never testified that she had lied in connection with this case,” the “argument that
interrogation transcript and took the opportunity to redact it before it was published to the jury.
As such, this claim must also fail as any error was invited.
14
she was lying was improper.” This argument, however, is belied by the record. The prosecutor
did make several references in opening, closing, and rebuttal to a lie. The lie that he was
referring to was the fact that both Norton and Stacy insisted that Stacy was in Pierce between
5:00 and 7:00 p.m. on the evening of the fire. The thrust of the prosecutor’s argument was the
fact that Norton continued to insist that Stacy was at her house in Kamiah when she knew that he
was in Pierce setting that house on fire. The prosecutor’s arguments in this regard do not
constitute misconduct. Moreover, Norton did testify that she had lied in connection with the
case, specifically about the timeframe that the prosecutor continually referenced. Norton
admitted on cross-examination that she lied to Sergeant Jared about Stacy’s whereabouts during
the timeframe between 5:00 and 7:00 p.m. While she maintained that he was obtaining
marijuana for her during that time, the fact remains that she lied. The prosecutor was free to
argue the evidence and any reasonable inferences to be drawn from that evidence.
Norton next asserts that the prosecutor committed misconduct by referring to the defense
arguments as red herrings and smoke and mirrors. Neither party cites to Idaho case law for the
proposition that such an argument does or does not constitute prosecutorial misconduct. Norton
maintains, however, that such an argument “is an impermissible attack intended to encourage the
jury to focus on the conduct of defense counsel rather than on the evidence of guilt.” Norton
does note in her reply brief that, in Idaho, the prosecutor’s closing argument should not include
disparaging comments about opposing counsel. State v. Phillips, 144 Idaho 82, 86, 156 P.3d
583, 587 (Ct. App. 2007). See also State v. Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969
(2003); State v. Brown, 131 Idaho 61, 69, 951 P.2d 1288, 1296 (Ct. App. 1998); State v. Baruth,
107 Idaho 651, 657, 691 P.2d 1266, 1272 (Ct. App. 1984). The prosecutor’s comments here
were not directed at defense counsel personally, but rather were comments on the defense
theories. We conclude that the prosecutor’s rebuttal argument referring to some of defense
counsel’s arguments as red herrings and smoke and mirrors was not misconduct.
Finally, Norton contends that the prosecutor’s argument that she would have walked
away with $170,000 in cash in insurance proceeds constituted misconduct because it was not
supported by the evidence. She contends that the policy itself contradicts the prosecutor’s
assertion because the replacement cost is limited to “the full amount actually and necessarily
spent to repair or replace the damaged building as determined shortly following the loss.” While
15
the policy was admitted into evidence, Norton’s argument ignores other evidence. The
prosecutor engaged Safeco’s special investigator, Tracy Johnson, in the following discussion:
Q. Just so I understand this correctly, if the insurance policy for the
structure, let’s say it was 240,000, not including an additional
amount for a detached building, assuming that existed, just the
$240,000, and the lien on the building was around $70,000. What
would be done -- if the building was a total loss what would have
happened to the difference?
A. We would have rebuilt the home. We would have rebuilt it to a
$240,000 home.
Q. Would you have paid off the lienholder?
A. No.
Q. Would Ms. Norton have been able to receive cash for those things?
A. Yeah.
Based upon this exchange, there was some evidence supporting the prosecutor’s argument that
Norton stood to profit from the difference. As such, the prosecutor’s statement did not constitute
misconduct.
Norton has failed to demonstrate that the prosecutor committed misconduct during
opening, closing, or rebuttal arguments. Where Norton has not established any error, we need
not address Perry’s three-prong inquiry to determine whether fundamental error demands
reversal.
B. Motion in Limine
Prior to trial, Norton filed a motion in limine, pursuant to I.R.E. 404(b), “to exclude any
and all evidence regarding (1) any alleged involvement of the defendant in a house fire that
occurred in the state of Oregon and (2) any alleged involvement in ‘murder for hire’ regarding
defendant’s ex-husband.” The district court granted Norton’s motion in part and denied it in
part. Norton argues that the court erred in denying her motion in part. The State contends that
Norton has failed to show that the court abused its discretion in admitting the challenged
evidence.
With respect to Norton’s claim regarding the house fire in Oregon, the district court held
that any reference to arson in Oregon should be excluded, including any mention about the way
in which the fire came about. The court also held, however, that evidence that the house burned
and that it was insured was admissible. With respect to Norton’s claim regarding the murder for
hire, the district court held that any evidence regarding a conspiracy to murder her ex-husband
16
was unduly prejudicial and should be excluded. However, the court held that evidence that
Norton had financial problems and attempted to sell Mr. Norton’s property at discount rates was
probative of motive for arson. Norton contends that the court’s ruling was error.
Evidence of other crimes, wrongs, or acts is not admissible to prove a defendant’s
criminal propensity. I.R.E. 404(b); State v. Needs, 99 Idaho 883, 892, 591 P.2d 130, 139 (1979);
State v. Winkler, 112 Idaho 917, 919, 736 P.2d 1371, 1373 (Ct. App. 1987). However, such
evidence may be admissible for a purpose other than that prohibited by I.R.E. 404(b). State v.
Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct. App. 2002). In determining the admissibility
of evidence of prior bad acts, the Supreme Court has utilized a two-tiered analysis. The first tier
involves a two-part inquiry: (1) whether there is sufficient evidence to establish the prior bad
acts as fact; and (2) whether the prior bad acts are relevant to a material disputed issue
concerning the crime charged, other than propensity. State v. Grist, 147 Idaho 49, 52, 205 P.3d
1185, 1188 (2009). We will treat the trial court’s factual determination that a prior bad act has
been established by sufficient evidence as we do all factual findings by a trial court. We defer to
a trial court’s factual findings if supported by substantial and competent evidence in the record.
State v. Porter, 130 Idaho 772, 789, 948 P.2d 127, 144 (1997). In this case, Norton does not
challenge the existence of the prior bad act as an established fact. Therefore, we address only the
second part of the first tier--the relevancy determination. Whether evidence is relevant is an
issue of law. Atkinson, 124 Idaho at 819, 864 P.2d at 657. Therefore, when considering
admission of evidence of prior bad acts, we exercise free review of the trial court’s relevancy
determination. Id.
The second tier in the analysis is the determination of whether the probative value of the
evidence is substantially outweighed by unfair prejudice. Grist, 147 Idaho at 52, 205 P.3d at
1188. When reviewing this tier we use an abuse of discretion standard. Id. When a trial court’s
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry
to determine: (1) whether the lower court correctly perceived the issue as one of discretion;
(2) whether the lower court acted within the boundaries of such discretion and consistently with
any legal standards applicable to the specific choices before it; and (3) whether the lower court
reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d
1331, 1333 (1989).
17
1. Oregon fire
Regarding evidence of the Oregon fire, the district court held:
. . . [E]vidence that the house burned and that it was insured is admissible.
Those facts are relevant to Ms. Norton’s knowledge of what happens when an
insured home burns. The same can be said of her training as a firefighter and her
knowledge of “igniters.” The fact that she knows the nature of house fires and
what can cause them to burn goes to whether she was capable of setting or
arranging for the setting of the fire at Pierce. An essential aspect of any criminal
charge is whether the accused was capable of committing the crime. I conclude
the evidence is probative of Ms. Norton’s knowledge and capacity regarding the
offenses for which she is charged.
Norton argues that evidence of the Oregon fire was not relevant to a material disputed issue
concerning the crime charged, other than propensity, because there was never any dispute that
she knew what happens when an insured house burns. The State asserts that this evidence is not
even subject to I.R.E. 404(b) analysis because receiving an insurance payment for a house fire is
not a “prior bad act” and is not indicative of character. Norton counters that I.R.E. 404(b) is not
limited to “bad” acts.
Norton is correct that Rule 404(b) is not limited to “bad” acts. Rather, the rule
encompasses “other crimes, wrongs, or acts.” I.R.E. 404(b). However, evidence runs afoul of
Rule 404(b) only if its purpose is “to prove the character of a person in order to show that the
person acted in conformity therewith.” I.R.E. 404(b). Therefore, evidence is inadmissible where
its purpose is to demonstrate a propensity to commit other crimes, wrongs, or acts. Here, the
district court limited the evidence of the Oregon fire to the fact that Norton’s house burned and
that it was insured. We conclude this evidence does not bear on Norton’s character and,
therefore, is not subject to I.R.E. 404(b).
Norton maintains, however, that the district court abused its discretion in admitting the
evidence because its probative value was substantially outweighed by unfair prejudice. In
exercising its discretion, the court determined that any evidence that Norton had set the Oregon
house on fire was based upon what she had told certain witnesses, and was too tenuous to
support that conclusion. The court also concluded that any evidence that Norton had committed
a similar crime in the past could not be offered to show that she was more likely to have
committed the charged crime. Therefore, the court prohibited any reference to arson or to how
the fire came about. Nevertheless, the court also determined that the facts that the house burned
18
and that it was insured were relevant to Norton’s knowledge. As such, the court did weigh all of
the evidence, concluding that any reference to arson was too prejudicial, but that evidence of the
insured house burning was probative to Norton’s “knowledge and capacity regarding the
offenses for which she is charged.” We conclude that Norton has failed to show that the district
court abused its discretion in admitting the evidence.
2. Attempts to sell property
With respect to evidence regarding Norton’s attempts to sell Daryl Norton’s property,
that issue was raised in the State’s brief in opposition to Norton’s motion in limine. The only
issue raised by Norton dealt with evidence regarding a murder for hire. The State responded by
noting that Norton had made comments that both the house and her husband, Daryl, were heavily
insured and that if things did not go right for her, he would have “to go.” The State argued that
Norton’s financial condition was worsening and that she blamed her situation on her husband.
The State pointed to excerpts from the preliminary hearing, in which Kevin Hornbuckle testified
that he owed Norton money and that she offered him some financial help if he would assist her in
getting rid of her husband. He also testified that Norton asked him to help her sell some items of
personal property, and that if he assisted her, he would no longer be indebted to her.
Based upon the arguments presented, the district court held that any evidence regarding a
conspiracy to kill Daryl had nothing to do with the charged offenses and would “unduly divest
the jury’s attention from the charges against Ms. Norton and focus its attention and concern on a
sensational allegation that has not been charged.” Regarding the financial problems raised by the
State, the court stated:
The fact that Ms. Norton had financial problems and tried to get Mr.
Hornbuckle to sell [Daryl’s] property at discount rates is very probative of a
motive for arson, and is not tainted unfairly prejudicial. That evidence should be
available to the jury for its consideration.
Hornbuckle testified at trial that Norton requested his help in selling a Bow-flex, a trailer, and
tools, all of which allegedly belonged to Daryl, in order to raise approximately $1,600.
Norton argues that such evidence is “inconsistent with the theory of financial difficulties
so severe that they were a motive for arson” because a person “in difficult financial straits would
want to sell property for the highest possible dollar value.” The State asserts that the evidence
demonstrated that Norton needed money, which gave her a motive to commit arson for the
purpose of obtaining the insurance proceeds. We conclude that any evidence regarding financial
19
difficulties is clearly relevant to establish motive in a case involving charges of arson and
insurance fraud.
Norton contends, however, that evidence that she attempted to sell Daryl’s property is
other acts evidence, specifically evidence of theft, which is prohibited by I.R.E. 404(b) and 403.
She further claims that where motive is not an issue, other acts evidence is not admissible to
prove motive. The primary issue at trial, however, was whether Norton committed the charged
offenses. Part of the State’s case was demonstrating who had a motive to commit the crimes. As
such, Norton’s motives for why she would commit the offenses and whether she stood to gain
anything from them were material issues in the case. The evidence was also relevant to the
State’s theory that Norton blamed her financial condition on her husband and that she arranged
to have the fire set while he was in Pierce in order to implicate him in the arson. We agree with
the district court that evidence of financial problems is probative of a motive for arson.
Moreover, as with the evidence of the Oregon fire, the district court weighed the evidence and
appropriately exercised its discretion in allowing the State to present evidence of Norton’s
financial difficulties.
C. Motion for Mistrial
During the direct examination of Kevin Hornbuckle, the prosecutor asked whether
Norton had told him anything about whether “she had any sort of specialized knowledge in how
to set fires.” Hornbuckle responded:
She’s -- she basically -- yes, she has a couple of times saying, you know,
she volunteered [as a] firefighter. She knew the captain, and he showed her how
to set fires, and they put out fires, and they do all sorts of stuff through the
training so she learned how. And she was gloating that she had a -- basically a
hand in getting her house on fire and getting collected.
The prosecutor stated, “let’s set that aside,” and Norton requested a motion hearing out of the
presence of the jury where she then moved for a mistrial. The prosecutor argued that a mistrial
was not warranted and that the court could instruct the jury to disregard the statement. The
prosecutor also stated that he would agree to a statement to the jury that the official declared that
the cause of the fire in Oregon was an electrical short. Norton initially agreed with the
prosecutor, but noted that she would renew her motion if anything else were said by any other
witness.
20
Norton subsequently renewed her motion and argued that Hornbuckle’s statement
violated the district court’s order prohibiting any references to the Oregon fire being arson. The
prosecutor argued that none of the questioning was posed for the purpose of developing
testimony regarding arson and that Hornbuckle’s statement could be cured. The court denied
Norton’s motion for a mistrial and ultimately instructed the jury as follows:
There was a statement by Mr. Hornbuckle, last statement he made during
his testimony yesterday that was susceptible to being interpreted that in some
manner Ms. Norton may have had something to do with the fire in Oregon. I am
instructing you that you are to draw no inferences that lead to that conclusion.
The Oregon authorities concluded that that fire was started by an electrical short,
and you are not to conclude from that, that that short -- that Ms. Norton had
anything to do with that short. The rest of the testimony you’re entitled to draw
whatever inferences you think are appropriate. Is there anybody that thinks they
can’t follow the instruction that I’m just giving, that is, to disregard the last
remark of Mr. Hornbuckle? Okay, thank you.
On appeal, Norton contends that the district court erred in denying her motion for a
mistrial. She further claims that the nature of the inadmissible testimony was such that a curative
instruction was insufficient. The State argues that there is no reason to believe that the jury
disregarded the court’s curative instruction.
In criminal cases, motions for mistrial are governed by I.C.R. 29.1. A “mistrial may be
declared upon motion of the defendant, when there occurs during the trial an error or legal defect
in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the
defendant and deprives the defendant of a fair trial.” I.C.R. 29.1(a). Our standard for reviewing
a district court’s denial of a motion for mistrial is well established:
[T]he question on appeal is not whether the trial judge reasonably exercised his
discretion in light of circumstances existing when the mistrial motion was made.
Rather, the question must be whether the event which precipitated the motion for
mistrial represented reversible error when viewed in the context of the full record.
Thus, where a motion for mistrial has been denied in a criminal case, the “abuse
of discretion” standard is a misnomer. The standard, more accurately stated, is
one of reversible error. Our focus is upon the continuing impact on the trial of the
incident that triggered the mistrial motion. The trial judge’s refusal to declare a
mistrial will be disturbed only if that incident, viewed retrospectively, constituted
reversible error.
State v. Urquhart, 105 Idaho 92, 95, 665 P.2d 1102, 1105 (Ct. App. 1983). The error will be
deemed harmless if the appellate court is able to declare, beyond a reasonable doubt, that there
21
was no reasonable possibility that the event complained of contributed to the conviction. State v.
Morgan, 144 Idaho 861, 863, 172 P.3d 1136, 1138 (Ct. App. 2007).
In State v. Grantham, 146 Idaho 490, 198 P.3d 128 (Ct. App. 2008), this Court reviewed
a lower court’s denial of a motion for mistrial where the court gave a curative instruction
following the motion. The Court announced the standard set forth in Urquhart, identified the
appellant’s contention on appeal, including the fact that the appellant argued that the curative
instruction was insufficient, and then stated:
The admission of improper evidence does not automatically require the
declaration of a mistrial. State v. Hill, 140 Idaho 625, 631, 97 P.3d 1014, 1020
(Ct. App. 2004); State v. Rose, 125 Idaho 266, 269, 869 P.2d 583, 586 (Ct. App.
1994). Where improper testimony is inadvertently introduced into a trial and the
trial court promptly instructs the jury to disregard such evidence, it is ordinarily
presumed that the jury obeyed the court’s instruction entirely. Hill, 140 Idaho at
631, 97 P.3d at 1020. We normally presume that a jury will follow an instruction
to disregard inadmissible evidence inadvertently presented to it, unless there is an
overwhelming probability that the jury will be unable to follow the court’s
instructions, and a strong likelihood that the effect of the evidence would be
devastating to the defendant. Id.; see also Greer v. Miller, 483 U.S. 756, 766 n.8,
107 S.Ct. 3102, 3109 n.8, 97 L.Ed.2d 618, 630 n.8 (1987). An error is harmless,
rather than reversible, when the reviewing court can find beyond a reasonable
doubt that the jury would have reached the same result without the admission of
the challenged evidence. State v. Barcella, 135 Idaho 191, 197, 16 P.3d 288, 294
(Ct. App. 2000).
Grantham, 146 Idaho at 498, 198 P.3d at 136.
The parties argue over what standard should be applied to a motion for a mistrial, with
Norton arguing the standard harmless error test set forth in Urquhart, and the State arguing the
language from Grantham with respect to whether there is an overwhelming probability that the
jury was unable to follow the court’s instruction. Grantham did not attempt to change the
standard; rather, it makes clear that where a court gives a curative instruction, the appellate court
may consider that factor in determining whether the alleged error is reversible. Here, the event
that “triggered” the mistrial motion was Hornbuckle’s statement regarding the Oregon fire.
While the statement was improper, we conclude that it was harmless beyond a reasonable doubt.
The district court here specifically instructed the jury to disregard Hornbuckle’s last
statement. The court inquired whether any of the jurors felt that they could not follow that
instruction, and none of them indicated that they would be unable to do so. The evidence in this
case was overwhelming. Norton purchased her insurance policy approximately three months
22
before the fire occurred. She acknowledged at trial that she was the only individual on the policy
and that she was the only one who would financially benefit from the house fire. Hornbuckle
testified that Norton told him if things did not go right for her, with her husband and her
finances, that she “heavily insures everything.” Hornbuckle also testified that Norton told him
she knew how to start fires and was familiar with “igniters,” such as gasoline. The physical
evidence suggested that an accelerant, such as gasoline, was likely used to start the fire and that
had the door to the basement not been shut, the fire would have likely consumed the entire
house. The physical evidence directly corroborated Stacy’s account of how the fire started. He
testified that when he and Norton left Pierce on the morning of the day the fire occurred, he
smelled gasoline on her. When he returned to the house later to set the fire at Norton’s request,
he smelled gas fumes and saw a plastic gas can sitting on the bed in the basement. Stacy testified
that he lit a small candle that had been left there, “booted” it towards the bed, ran up the stairs,
flung the door, ran out of the house and over the fence, and went back down the hill to his car.
Sergeant Jared testified that he interviewed Norton and Stacy several times. During each
interview with Norton, she was adamant that Stacy was at her house in Kamiah between 5:00
and 7:00 p.m. Stacy also initially maintained that he was in Kamiah during that timeframe.
However, Jared interviewed other witnesses, who also testified at trial, and they placed Stacy in
Pierce at that time. When pressed with the inconsistencies of his story, Stacy ultimately told
investigators that Norton asked him to help her burn the house down and that she would pay him
some money out of the insurance proceeds. Stacy testified that Norton timed the fire so that her
husband, Daryl, whom she was divorcing, would be blamed for the fire. Norton told police and
insurance investigators that she suspected Daryl had started the fire.
Following Stacy’s confession to the police, he had a wired conversation with Norton
about the incident, and that conversation was admitted into evidence. During the conversation,
Norton repeatedly told Stacy to “stay with the story,” reviewed the timeframe of their activities
the day of the fire, told him a number of times that he had a “solid alibi,” told him that Daryl was
being investigated, told him that if they continued to question him to get a lawyer, told him
several times not to “crack,” and told him that she was “personally taking care of [him].”
Norton testified at trial that the “story” that Stacy was sticking to was fabricated in order
to avoid telling investigators that Stacy had gone to Orofino to obtain some marijuana for her.
On cross-examination, Norton acknowledged having lied to Sergeant Jared about Stacy’s
23
whereabouts, but testified that it was to cover for him getting her marijuana. Norton maintained
that while the wired conversation went back and forth between arson and marijuana, her
statements about sticking with the story and an alibi were in reference to the fact that she and
Stacy did not want to get arrested for having marijuana.
Norton argues on appeal that while evidence of the conversation “is certainly not
evidence the defense would have been happy to read in discovery,” nowhere did she say, “I
spread the gas,” or “I planned the fire.” She further notes that she did provide an explanation for
her statements other than arson. This explanation, however, goes against the great weight of the
evidence.
Stacy mentioned a number of times during the wired conversation that he was concerned
about going to jail for fifty-five years for arson. He also told Norton that there were witnesses
who could place him in Pierce. Norton kept assuring him, however, that Daryl was being
investigated and that as long as they “stick with the story,” they would be “golden.” When Stacy
told Norton that she may also want to get a lawyer because the investigators were looking at her
as well, she stated: “Well, that’s normal. They will look at me. But I’m fine. I gave them my
criminal history, which wasn’t much.” Later on in the conversation, Norton states that the only
reason the investigators were looking at her was because of the insurance. It is evident that the
wired conversation was about the arson, not marijuana use.
We are convinced beyond a reasonable doubt that the jury would have reached the same
verdict without the admission of the challenged evidence. We conclude that based upon the
totality of the evidence, and when viewed in context of the full record and in light of the court’s
instruction, Hornbuckle’s statement did not contribute to Norton’s conviction. Therefore, the
district court did not err in denying Norton’s motion for a mistrial.
D. Cumulative Error
Lastly, Norton contends that the cumulative error doctrine requires reversal. The
cumulative error doctrine refers to an accumulation of irregularities, each of which by itself
might be harmless, but when aggregated, show the absence of a fair trial in contravention of the
defendant’s right to due process. Moore, 131 Idaho at 823, 965 P.2d at 183. The presence of
errors alone, however, does not require the reversal of a conviction because, under due process, a
defendant is entitled to a fair trial, not an error-free trial. Id. Because Norton has failed to
24
demonstrate that there are multiple errors to cumulate, the cumulative error doctrine does not
apply.
III.
CONCLUSION
Norton has failed to establish fundamental error as to any of her claims such that this
Court will review them for the first time on appeal. The district court did not err in denying, in
part, Norton’s motion in limine to exclude evidence. The district court did not err in denying
Norton’s motion for a mistrial. The cumulative error doctrine does not apply in this case.
Norton’s judgment of conviction is, therefore, affirmed.
Judge LANSING and Judge MELANSON CONCUR.
25