Appeal from the District Court of the Seventh Judicial District, State of Idaho, Clark County. Hon. Joel E. Tingey, District Judge.
The opinion of the court was delivered by: Lansing, Judge
Judgment of conviction for two counts of lewd and lascivious conduct with a minor, affirmed.
Pony L. Jackson appeals from his conviction on two counts of lewd and lascivious conduct with a minor child, Idaho Code § 18-1508. He seeks fundamental error review of a number of asserted instances of prosecutorial misconduct to which no objection was made at trial. Finding no error that meets the criteria for fundamental error, we affirm.
In 2008, Jackson was charged with two counts of lewd conduct with a minor under sixteen years of age, I.C. § 18-1508, for acts of molestation of his niece, K.W., that were alleged to have occurred sixteen years earlier. K.W. apparently was prompted to report these offenses in 2007 because she had heard of a news broadcast indicating that Jackson had been charged with possession of child pornography and that law enforcement authorities were requesting contact from anyone who had been victimized by him. After a jury trial, Jackson was found guilty of both charges. On appeal, Jackson contends that the prosecutor violated a pretrial order that precluded the State from disclosing details of the news broadcast indicating other criminal activity by Jackson. He also argues that the prosecutor improperly elicited testimony from K.W.'s mother vouching for K.W.'s credibility and violated Jackson's Fifth Amendment right against self-incrimination by referring during closing argument to the absence of any trial testimony by Jackson.
Jackson made no objection at trial to the alleged acts of prosecutorial misconduct of which he now complains. Trial error ordinarily will not be addressed on appeal unless a timely objection was made in the trial court. State v. Adams, 147 Idaho 857, 861, 216 P.3d 146, 150 (Ct. App. 2009). This limitation "serves to induce the timely raising of claims and objections, which gives the [trial] court the opportunity to consider and resolve them." Puckett v. United States, ___ U.S. ___, ___, 129 S. Ct. 1423, 1428 (2009). Because Jackson raises his claims of error for the first time on appeal, to obtain our review of these issues, he must establish that they are reviewable as "fundamental error."
In its recent opinion in State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court re-examined the fundamental error doctrine and adopted a new definition of the types of error for which review will be provided on appeal in the absence of a timely objection in the trial court. The Supreme Court stated that to obtain relief on appeal for fundamental error:
(1) the defendant must demonstrate that one or more of the defendant's unwaived constitutional rights were violated; (2) the error must be clear or obvious, 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) the defendant must demonstrate that the error affected the defendant's substantial rights, meaning (in most instances) that it must have affected the outcome of the trial proceedings.
Id. at 226, 245 P.3d at 978 (footnote omitted). Thus, on a claim of fundamental error a defendant must first show that the alleged error "violates one or more of the defendant's unwaived constitutional rights" and that the error "plainly exists" in that the error was plain, clear, or obvious. Id. at 228, 245 P.3d at 980. If the appellate record is insufficient to show clear error, "the matter would be better handled in post-conviction proceedings." Id. at 226, 245 P.3d at 978.
If the alleged error satisfies the first two elements of the Perry test, the error is reviewable. Id. To obtain appellate relief, however, the defendant must further persuade the reviewing court that the error was not harmless; i.e., that there is a reasonable possibility that the error ...