Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Deborah A. Bail, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
THE COURT'S PRIOR OPINION DATED JANUARY 19, 2010 IS HEREBY WITHDRAWN
Judgment of conviction for rape, vacated.
Maurice Ronald Troutman appeals from his judgment of conviction for rape. Specifically, he alleges prosecutorial misconduct deprived him of his rights to due process and a fair trial. For the reasons set forth below, we vacate the judgment of conviction and remand for a new trial.
The evidence at trial showed that Troutman played for an arena football team called the Bakersfield Blitz. In July of 2007, the team traveled to Boise to play a game against the Boise Burn. While they were in Boise, they stayed at the Grove Hotel. H.S. and her friend, J.R., traveled to Boise that same weekend to watch the game and shared a room at the Grove Hotel. H.S. knew two of the coaches and had been to several other Blitz games that season. The game took place on Saturday, July 7, 2007. After the game many of the Blitz players, the coaches, H.S., and J.R. went out to some downtown bars. H.S. consumed alcohol that night at the bars and when she got back to her hotel room, she took a sleeping pill, Ambien, to help her go to sleep. J.R. did not sleep in the room that night. Although it is disputed as to how Troutman acquired a key card to enter the room where H.S. was staying, he testified that after speaking to J.R. about whether she had any female friends who might be interested in partying with the team, J.R. handed him the key card to her room and suggested he go meet her roommate, H.S., in the room they were sharing. Thereafter, Troutman entered the room with the key card and had sexual intercourse with H.S. Troutman left the room and went to one of his teammates, Rennard Reynolds, passed him the key card and said that he just had sex with a girl in that room and that Reynolds could probably "get laid" too. Further investigation showed that there were a total of four entries into the room where H.S. stayed that night.
The next morning, H.S. awoke and had a vague sense that she had sex the previous night. She had trouble remembering the encounter and was very confused as to what had happened. In fact, one of the coaches, who was a friend of H.S., testified at trial that H.S. called him the morning after the encounter and told him that she was confused and could not remember whether it was consensual or not. At some point, H.S. also realized that some of her belongings were missing, including her iPod, her iPod alarm, her camera, and $70 cash from her purse. Police were contacted and informed of the theft and a possible sexual assault.*fn1 After law enforcement arrived at the hotel, Troutman approached an officer and indicated that he had some information about the events that occurred the previous night. He admitted that he had sex with H.S., but insisted that it was purely consensual. As a result of the investigation by law enforcement, the state sought an indictment against Troutman for burglary and rape. The grand jury found probable cause only as to the rape charge. The case proceeded to trial. The state's theory was that H.S. was either unconscious at the time of the sexual intercourse, or unable to resist, due to her ingestion of alcohol and the Ambien pill. Troutman's defense was that the sex was purely consensual, the alleged victim was an active participant, and the fact that the alleged victim simply did not remember did not mean that the sex was rape. In support of his defense, Troutman presented evidence that one of the side effects of Ambien is anterograde*fn2 amnesia, during which a person using the drug can appear wide awake and fully functional at times during the night, but have no recollection of the night's activities the following morning. A jury found Troutman guilty of rape pursuant to Idaho Code § 18-6101(5). Troutman appeals, arguing prosecutorial misconduct deprived him of his rights to due process and a fair trial.
II. DISCUSSION Troutman contends that during the opening, closing and rebuttal arguments the prosecutor misrepresented the evidence, offered inconsistent theories of the crime, distorted the defense, sought a conviction to protect or change societal norms, reduced the state's burden of proof, created sympathy for the victim and derision for him, and testified to facts not in evidence. Although no objection was made to these arguments at the time, Troutman argues that all of these instances, individually or in the aggregate, amounted to fundamental error that deprived him of his rights to due process and a fair trial.
While our system of criminal justice is adversarial in nature, and the prosecutor is expected to be diligent and leave no stone unturned, he is nevertheless expected and required to be fair. State v. 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. A fair trial is not necessarily a perfect trial. When there is no contemporaneous objection, a conviction will be reversed for prosecutorial misconduct only if the conduct is sufficiently egregious so as to result in fundamental error. Id. Misconduct will be regarded as fundamental error when it "goes to the foundation or basis of a defendant's rights or . . . to the foundation of the case or take[s] from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive." State v. Severson, 147 Idaho 694, 716, 215 P.3d 414, 436 (2009); State v. Bingham, 116 Idaho 415, 423, 776 P.2d 424, 432 (1989) (quoting State v. Garcia, 46 N.M. 302, 309, 128 P.2d 459, 462 (1942)). "However, even when prosecutorial misconduct has resulted in fundamental error, the conviction will not be reversed when that error is harmless." Field, 144 Idaho at 571, 165 P.3d at 285. Under the harmless error doctrine, a conviction will stand if the appellate court is convinced beyond a reasonable doubt that the same result would have been reached by the jury had the prosecutorial misconduct not occurred. State v. LaMere, 103 Idaho 839, 844, 655 P.2d 46, 51 (1982); State v. Pecor, 132 Idaho 359, 368, 972 P.2d 737, 746 (Ct. App. 1998).
The role of the prosecutor is to present the government's case earnestly and vigorously, using every legitimate means to bring about a conviction, but also to see that justice is done and that every criminal defendant is accorded a fair trail. State v. Babb, 125 Idaho 934, 942, 877 P.2d 905, 913 (1994); State v. Givens, 28 Idaho 253, 268, 152 P. 1054, 1058 (1915); State v. Reynolds, 120 Idaho 445, 449, 816 P.2d 1002, 1006 (Ct. App. 1991); State v. Robinson, 115 Idaho 800, 807, 770 P.2d 809, 816 (Ct. App. 1989); State v. Danson, 113 Idaho 746, 749, 747 P.2d 768, 771 (Ct. App. 1987). The desire for success should never induce a prosecutor to obtain a verdict by argument based upon anything except the evidence in the case and the conclusions legitimately deducible from the law applicable to the same. Givens, 28 Idaho at 268, 152 P. at 1058. Appeals to emotion, passion or prejudice of the jury through use of inflammatory tactics are improper. State v. Smith, 117 Idaho 891, 898, 792 P.2d 916, 923 (1990); State v. Phillips, 144 Idaho 82, 87, 156 P.3d 583, 588 (Ct. App. 2007). Although we have recognized the imposition of certain well-accepted restrictions beyond which the prosecutor's argument may not go without running afoul of its function, the propriety of a given argument will depend largely on the facts of each case. Reynolds, 120 Idaho at 449-50, 816 P.2d at 1006-07; see also Darden v. Wainwright, 477 U.S. 168 (1986). The function of appellate review is not to discipline the prosecutor for misconduct, but to ensure that any such misconduct did not interfere with the defendant's right to a fair trial. Reynolds, 120 Idaho at 451, 816 P.2d at 1008; see also State v. Ruth, 102 Idaho 638, 640-41, 637 P.2d 415, 417-18 (1981).
A. Mischaracterization of the Defense Theory
Troutman asserts that the prosecutor committed misconduct by distorting his defense that the victim was a conscious and fully active participant in the sexual encounter. During rebuttal closing argument, the state framed the defense as follows:
I think it's set and he would have a done deal if, based on this argument, we are all going to have to put heavy locks on our doors, on the windows in our house and wear chastity belts when we go to bed, because in case you are lawfully ingesting any substance that makes you unable to fend for yourself and the next day you can't remember much about what's happened, but the law enforcement has done their absolute best and ...