Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Ronald J. Wilper, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
Judgment of conviction and sentences for three counts of lewd conduct with a minor under sixteen, affirmed.
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.
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, 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.
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.
Id. at ___, ___ P.3d at ___. Employing this standard, we examine each of Felder's allegations of ...