IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 35523
STATE OF IDAHO, )
) 2010 Opinion No. 84
Plaintiff-Respondent, )
) Filed: December 13, 2010
v. )
) Stephen W. Kenyon, Clerk
KENNETH FRANKLIN FELDER, )
)
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Ronald J. Wilper, District Judge.
Judgment of conviction and sentences for three counts of lewd conduct with a
minor under sixteen, affirmed.
Molly J. Huskey, State Appellate Public Defender; Heather M. Carlson, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
General, Boise, for respondent.
________________________________________________
GUTIERREZ, Judge
Kenneth Franklin Felder appeals from the judgment of conviction and sentences entered
upon a jury verdict finding him guilty of three counts of lewd conduct with a minor under
sixteen. For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
Felder was indicted by a grand jury on three counts of lewd conduct with a minor under
sixteen, Idaho Code § 18-1508, for acts he committed against his stepdaughter, A.K. The abuse
began when A.K. was in third grade and continued until she was in fifth grade when she
disclosed the abuse to a school counselor who, in turn, notified the police. When questioned by
law enforcement, Felder admitted to having committed some acts against A.K. five to ten times
over the course of a year and a half. Two months later, after A.K.’s mother filed for divorce,
1
Felder claimed for the first time that A.K. had fabricated the allegations. He continued to deny
the allegations at trial, testifying that he believed A.K. had fabricated the allegations because she
did not like him and because he was a strict disciplinarian, and asserting that he had only
confessed to the police because they had threatened to take his children away.
The jury found Felder guilty of all three counts of lewd conduct with a minor. The
district court entered a judgment of conviction and imposed concurrent sentences of twenty-five
years, with ten years determinate. Felder filed a timely Rule 35 motion for reduction of
sentence, which the court denied. Felder now appeals the judgment of conviction, asserting
several instances of prosecutorial misconduct and contending that the sentence imposed is
excessive.
II.
ANALYSIS
A. Prosecutorial Misconduct
Felder contends that the prosecutor violated his right to a fair trial by impermissibly
vouching for the victim, misrepresenting the facts in evidence, shifting the burden of proof, and
appealing to the passions and prejudices of the jury in closing argument. He concedes that the
comments were not objected to below, but argues that they amount to fundamental error such
that we may address the issue for the first time on appeal.
Recently in State v. Perry, ___ Idaho ___, ___ P.3d ___ (Dec. 7, 2010), the Idaho
Supreme Court articulated the standard of review on a claim of fundamental error where a
defendant asserts that an error occurred at trial--which it explicitly stated included allegations of
prosecutorial misconduct. The court summarized the standards applicable both when there was a
contemporaneous objection and when there was not, the latter of which is applicable here:
(2) If the alleged error was not followed by a contemporaneous objection, it shall
only be reviewed by an appellate court under Idaho’s fundamental error doctrine.
Such review includes a three-prong inquiry wherein the 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.
2
Id. at ___, ___ P.3d at ___. Employing this standard, we examine each of Felder’s allegations of
prosecutorial misconduct.
1. Vouching for credibility
Felder’s first assertion of prosecutorial misconduct is that the prosecutor improperly
vouched for the credibility of the victim. Initially, he points to the following statement in the
prosecutor’s closing argument:
For you to believe that [A.K.] would somehow be able to make up these
allegations that somehow in doing so, that the state would be able to wrap itself
around the allegations and just happen to find all of these coincidences would
make you think that [A.K.] is so sophisticated and so smart that she could fool
people who do this every day . . . .
The prosecutor followed the statement with an explanation of how A.K.’s disclosures
corresponded to when Felder began having sole care of her and when she later became
“disconnected” at school. Felder contends that by arguing that A.K. would have had to “fool
people who do this every day,” including implicitly the prosecutor’s office, in attempting to
explain why she was believable, the prosecutor was “implicitly saying that the State believes her
and the State would not be able to find all the coincidences if she was not believable.” He
contends that by placing herself in the arguments and implying that the victim could not fool the
state, the prosecutor was vouching for the credibility of A.K.
Felder points to other statements he contends are similar, wherein the prosecutor
explained to the jury that if A.K. had made inconsistent statements, that fact would have been
brought to the jury’s attention. Specifically, the prosecutor stated:
She tells her friend. Her friend encourages her to tell [a teacher]. She
goes to CARES. She tells CARES what happened. And ladies and gentlemen,
what is important about all of this is that each of these persons has come to testify,
not her little friend . . ., but all these other people have come. And if she had said
anything inconsistent, [A.K.] had been inconsistent with [the teacher], with
CARES, with what the police understood, you would have heard about it.
You would have heard about it in cross examination. You would have
heard how he brings out inconsistencies in [A.K.’s] stories, just as the state did
with the defendant and how inconsistent he has been throughout his entire
testimony today with what he told Detective Zakarian seven and a half months
ago. You see, you would have known if [A.K.] had been inconsistent about any
of it, but you never heard about it at all.
3
Felder contends that this statement “vouches for the victim, implying that the prosecutor knows
A.K. has never been inconsistent.”
Closing argument serves to sharpen and clarify the issues for resolution by the trier of
fact in a criminal case. State v. Gross, 146 Idaho 15, 18, 189 P.3d 477, 480 (Ct. App. 2008);
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. 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); Gross, 146 Idaho at
18, 189 P.3d at 480. However, closing argument should not include the prosecutor’s personal
opinions and beliefs about the credibility of a witness. Gross, 146 Idaho at 18, 189 P.3d at 480;
State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007). This includes the right to
express how, from that party’s perspective, the evidence confirms or calls into doubt the
credibility of particular witnesses. Id.
In State v. Priest, 128 Idaho 6, 909 P.2d 624 (Ct. App. 1995), this Court addressed an
issue similar to that presented here. There, in reference to the credibility of the state’s witnesses,
the prosecutor argued, among other things:
And I guess the question that may be asked is, why should you believe
these witnesses? But for a second I’d like to just turn it around a little bit. Why
should you not believe these witnesses? Have any of them in this courtroom on
cross-examination been shown to be lying about what they told you? Have any of
them been impeached? The answer is no . . . .
What does Joe Taylor gain by lying? Does he get his tools back? Does he
get money? Does he get charges dropped? Does he get revenge? What does he
have to gain by making up that statement that he told you? We took a man up to
the woods. We shot him. It was beautiful. What does he gain? Didn’t gain
anything. So, again I submit Joe Taylor was not making up anything. Joe Taylor
was not lying.
If they’re going to lie, why didn’t they lie better? Why didn’t they get
their stories perfectly straight? Why didn’t they get their dates right? Why didn’t
they get the exact words perfectly right? Because that’s human nature. People
don’t remember things exactly the way they happen all the time. But they do
remember the general tenor of what goes on. So if these people came in and said
“we don’t remember the date,” I would submit to you that is the--has the ring of
truth. That has the ring of truth. There is simply no reason to believe any of these
people lied.
4
Priest, 128 Idaho at 14, 909 P.2d at 632 (emphasis in original). This Court concluded that the
statements were not misconduct because it was apparent from the context in which the
challenged statements were made that the prosecutor was merely analyzing the evidence bearing
upon the witnesses’ credibility and stating the conclusions which he urged the jury to draw
therefrom. Id. Contrary to Priest’s argument, we concluded that the prosecutor’s comments did
not imply that he was privy to information corroborating the witnesses’ testimony that was
unknown to the jury, or that he was personally vouching for the credibility of his witnesses. Id.
In regard to the first statement, this is the case here. Examining the challenged statement
in context, it is clear that the prosecutor is not stating that it is her personal belief that A.K. was
credible, but that the jury should find A.K. credible based on the evidence presented at trial.
Immediately following the challenged statement, the prosecutor referenced the fact that A.K.’s
disclosure that Felder began abusing her at night when she was in third grade was bolstered by
testimony that this was precisely the time when Felder became her sole caregiver at night and
that when she was in the fourth grade she was placed in a counseling group and was
“disconnected and having social problems.” The prosecutor then surmised that these
circumstances corroborated A.K.’s testimony and argued the reasonable inference stemming
from that conclusion--that A.K. could not have been so sophisticated as to fabricate the
allegations of sexual abuse in such a way as to coincide with other events occurring at the time.
Because the prosecutor based her argument regarding A.K.’s credibility on the evidence
presented at trial, it was not misconduct.
The same can be said about the second statement. The prosecutor at no time suggested a
personal opinion about the believability of A.K.’s allegations. Rather, the prosecutor brought to
the jury’s attention the evidence presented at trial to argue why the jury should consider the
victim’s testimony credible. Therefore, because neither statement constituted vouching for
A.K.’s credibility, the statements cannot be considered misconduct.
2. Facts not in evidence
Felder also contends that the second statement constituted misconduct because by
arguing that the jury would have heard about any inconsistencies in A.K.’s story if they existed,
the prosecutor misrepresented the facts in evidence. It is plainly improper for a party to present
closing argument that misrepresents or mischaracterizes the evidence. State v. Troutman, 148
Idaho 904, 911, 231 P.3d 549, 556 (Ct. App. 2010); State v. Beebe, 145 Idaho 570, 575, 181 P.3d
5
496, 501 (Ct. App. 2007). In addition, it constitutes misconduct for a prosecutor to place before
the jury facts not in evidence. State v. Gerardo, 147 Idaho 22, 26, 205 P.3d 671, 675 (Ct. App.
2009); State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007).
In support of this argument, Felder relies on Washington v. Hofbauer, 228 F.3d 689 (6th
Cir. 2000), a child sex abuse case in which the prosecutor argued to the jury that it had heard
from the victim’s mother, a doctor, a social worker, and the victim herself “and nowhere for the
most part based upon what happened, has [the child’s version of the events] changed.” The court
concluded that the prosecutor misrepresented the facts in evidence, because none of the
individuals identified by the prosecutor, nor any other trial witness, had actually testified to the
substance of their conversations with the victim and therefore, no evidence had been presented to
the jury regarding whether the victim’s story had changed. Id. at 700.
Hofbauer is easily distinguished from the present case. There is a significant distinction
between a prosecutor’s affirmative assertion that witnesses’ testimony showed the child victim’s
statements to have been consistent over time, as occurred in Hofbauer, and the prosecutor’s
statement here noting the absence of any evidence that the victim’s statements had changed over
time. In other words, the prosecutor in Hofbauer affirmatively misrepresented the witnesses’
testimony where as here, the prosecutor made no misrepresentation but accurately stated that
witnesses had not presented testimony showing that the child’s description of events were
inconsistent with the trial testimony.
The prosecutor’s statement here is similar to that found permissible in Priest, 128 Idaho
at 14, 909 P.2d at 632. There, the prosecutor said, “Why should you not believe these witnesses?
Have any of them in this courtroom on cross-examination been shown to be lying about what
they told you? Have any of them been impeached? The answer is no, they haven’t been . . . .”
Admittedly, the question in Priest was whether this amounted to the prosecutor vouching for the
witnesses, not whether the prosecutor was implying facts not in evidence. Nevertheless, the
court’s conclusion in Priest, that “the prosecutor was merely analyzing the evidence bearing
upon witnesses’ credibility and stating the conclusions which he urged the jury to draw
therefrom,” is equally applicable to the prosecutor’s statement Felder is challenging. Because
the prosecutor did not misrepresent the facts in evidence during closing arguments, no
misconduct can be attributed on this basis.
6
3. Burden of proof
Felder also contends that the prosecutor improperly shifted the burden of proof to the
defense by arguing that if A.K.’s disclosures had been inconsistent the jury would have heard
about it and thus, implying that it was the defense’s burden to show that A.K.’s statements were
inconsistent. Misconduct may occur by the prosecutor diminishing or distorting the state’s
burden to prove the defendant’s guilt beyond a reasonable doubt. State v. Raudebaugh, 124
Idaho 758, 769, 864 P.2d 596, 607 (1993); State v. Erickson, 148 Idaho 679, 685, 227 P.3d 933,
939 (Ct. App. 2010); State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007). The
requirement that the State prove every element of a crime beyond a reasonable doubt is grounded
in the constitutional guarantee of due process. Jackson v. Virginia, 443 U.S. 307, 313-14 (1979);
State v. Mubita, 145 Idaho 925, 942, 188 P.3d 867, 884 (2008); Erickson, 148 Idaho at 685, 227
P.3d at 939. This standard of proof plays a vital role in the American scheme of criminal
procedure because it provides concrete substance for the presumption of innocence--that bedrock
axiomatic and elementary principle whose enforcement lies at the foundation of the
administration of our criminal law. In re Winship, 397 U.S. 358, 363 (1970); Erickson, 148
Idaho at 685, 227 P.3d at 939.
As we stated above, the prosecutor has the right to identify how, from the prosecutor’s
perspective, the evidence confirms or calls into doubt the credibility of a particular witness.
State v. Lovelass, 133 Idaho 160, 168, 983 P.2d 233, 241 (Ct. App. 1999); Priest, 128 Idaho at
14, 909 P.2d at 632. Here, the prosecutor properly limited its arguments to whether the evidence
presented any inconsistencies in A.K.’s story. See Priest, 128 Idaho at 14, 909 P.2d at 632 (not
finding misconduct where the prosecutor argued that the witnesses should be believed because
none had been shown on cross-examination to be lying). Thus, we conclude that the
prosecutor’s statement in this instance did not improperly shift the burden of proof.
4. Appeal to emotions, passions, or prejudices
Felder also contends that in closing arguments the prosecutor improperly appealed to the
emotions, passions, or prejudices of the jury. Specifically, Felder points to the prosecutor’s
statement at the conclusion of her closing argument, when asking the jury to convict Felder, that
“in this instance, [A.K.] should be seen and heard and believed by you. Convict him for what he
has done to her.” He contends that these statements appealed to the emotions of the jury and “a
sense of community justice” by asking the jury to convict him to show A.K. that they believe her
7
and for the alleged harm that Felder caused her, rather than to convict him based on the evidence
presented at trial.
As we noted above, a prosecutor has considerable latitude in closing argument and has
the right to discuss inferences arising from the evidence. State v. Porter, 130 Idaho 772, 786,
948 P.2d 127, 141 (1997); Phillips, 144 Idaho at 86, 156 P.3d at 587. This latitude is not
boundless, however, and it is impermissible to appeal to the emotion, passion, or prejudice of the
jury through the use of inflammatory tactics, State v. Gross, 146 Idaho 15, 20-21, 189 P.3d 477,
482-83 (Ct. App. 2008); Phillips, 144 Idaho at 86, 156 P.3d at 587. Urging the jury to render a
verdict based on factors other than the evidence and jury instructions, such as sympathy for the
victim, has no place in closing arguments. Beebe, 145 Idaho at 576, 181 P.3d at 502.
Examining the statement in context, we conclude that the statement was not improper as
it was not an invitation for the jury to convict Felder on any basis besides the evidence presented
at trial. Before making the statement at issue, the prosecutor had discussed the jury instructions,
the evidence presented at trial which the prosecutor contended established the elements of the
charged crimes, and the evidence which the prosecutor characterized as reflecting favorably on
A.K.’s credibility and negatively on Felder’s credibility. Thus, we agree with the state’s
assertion that given this context, it is clear that the prosecutor’s request that the jury deem A.K.
credible and that it convict Felder was based on the evidence at trial. See State v. Adams, 147
Idaho 857, 863-64, 216 P.3d 146, 152-53 (Ct. App. 2009) (concluding that the prosecutor’s
request for justice for the victims was not an inflammatory appeal to convict on anything other
than the evidence because, in part, the remarks were made immediately after a description of
how the trial evidence proved the defendant’s guilt). The statements therefore did not
impermissibly appeal to the emotions, passions, or prejudices of the jury.
B. Sentence Review
In the alternative, Felder contends that, given any view of the facts, his concurrent
sentences of twenty-five years with ten years determinate upon his conviction for three counts of
lewd conduct with a minor are unduly harsh and excessive. An appellate review of a sentence is
based on an abuse of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304
(Ct. App. 2000). Where a sentence is not illegal, the appellant has the burden to show that it is
unreasonable, and thus a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d
482, 490 (1992). A sentence may represent such an abuse of discretion if it is shown to be
8
unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324
(1982). A sentence of confinement is reasonable if it appears at the time of sentencing that
confinement is necessary “to accomplish the primary objective of protecting society and to
achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a
given case.” State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an
appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct
an independent review of the record, having regard for the nature of the offense, the character of
the offender and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653
P.2d 1183, 1184 (Ct. App. 1982). When reviewing the length of a sentence, we consider the
defendant’s entire sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
Admitting that the sentence is within the statutory maximum, Felder argues that
nonetheless, his sentence was an abuse of discretion because the district court failed to properly
consider the mitigating factors present in his case. Specifically, he asserts that the court failed to
give proper consideration to the fact that this was his first felony conviction, his positive
employment history, and the support of his family and friends.
In determining the appropriate sentence, the district court specifically stated that it
considered the objectives of sentencing, the material contained in the presentence investigation
report (PSI) and the psychosexual evaluation, as well as the harm to the victim caused by
Felder’s actions. The court then stated:
. . . keeping in mind that protection of society is the number one concern of any
sentencing judge, I think that an appropriate sentence in this case is a 25-year
sentence on each count concurrent with 10 years fixed. . . .
....
And I think that the prison sentence is appropriate because of the nature of
the crime, the fact that it was a repeated offense and because it was a very young
innocent victim, I think the fact that you offer what you believe is a plausible
denial of your explanation, you have essentially said that your victim in this case
was lying because she didn’t like you because you were such a tough
disciplinarian.
And I understand your inability to stand up and admit that you engaged in
this conduct. But nevertheless, the jury did find you guilty beyond a reasonable
doubt of all three counts, and I think that their verdict was well supported by the
evidence that was presented.
I have taken into account the fact that you’re not a career criminal, the fact
that you have been a productive member of society, and I wanted to give you
some hope, some light at the end of the tunnel. . . .
9
It is thus evident from the record that the court did take into account that this was
Felder’s first felony conviction, as well as the fact that he had been a “productive” member of
society which common sense dictates included his employment history. The court also indicated
it had taken into account the information contained in the PSI, which included the letters of
support written by friends and family. Also, to the extent that Felder argues that the court did not
give proper weight to these factors by imposing a lesser sentence, he has not shown that the court
abused its discretion. As pointed out by the state, while the mitigating factors identified by
Felder may have some relevancy to sentencing, a court is not required to assess or balance all of
the sentencing goals in an equal manner. See State v. Dushkin, 124 Idaho 184, 186, 857 P.2d
663, 665 (Ct. App. 1993). Along with any mitigating circumstances, the court also considered
the surrounding circumstances of the crime--including the fact that Felder repeatedly abused the
young and innocent victim who suffered harm as a result--and then accused her of lying because
she disliked him. The court also found that Felder continued to be a threat to public safety due to
his continued refusal to admit to the abuse and placed great weight on this factor, concluding that
the sentence imposed was necessary to protect the community from the possibility that Felder
may reoffend. That the court did not elevate the mitigating factors Felder cites over the need to
protect society does not establish an abuse of discretion, and we conclude that taking into
account the entirety of the record, the sentence imposed was reasonable.
III.
CONCLUSION
The prosecutor did not commit misconduct by improperly vouching for the credibility of
A.K., referring to facts not in evidence, shifting the burden of proof, or by improperly appealing
to the passions and prejudices of the jury. We also conclude that the sentence imposed by the
district court was reasonable in light of the factors applicable to the determination. Accordingly,
Felder’s judgment of conviction and sentences for three counts of lewd conduct with a minor
under sixteen are affirmed.
Chief Judge LANSING and Judge GRATTON, CONCUR.
10