Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
Judgment of conviction and sentence for forgery with a persistent violator enhancement, affirmed.
Judy Ann Mendoza appeals from her judgment of conviction and sentence for one count of forgery with a persistent violator enhancement. For the reasons set forth below, we affirm.
On January 6, 2009, Jerry Haman went into a business and asked the employee to cash a one hundred dollar bill for ten and twenty dollar bills. The employee took the bill, but noticed that it did not feel right--it seemed thin, and the color was "off." After the employee confirmed that the bill was not legitimate with a money marking pen, she called for the store manager who also determined that the bill was counterfeit and called the police. After the police arrived they confirmed that the bill was indeed counterfeit, and after talking with Haman they located Mendoza sitting in the driver's seat of a car in the parking lot of the store. One of the officers informed Mendoza that Haman had been detained inside for trying to pass a counterfeit bill and asked her if she had any more of the same money. Mendoza informed the officer that she had another one hundred dollar bill in her purse. After examining the bill, the officer concluded that it was also counterfeit. After being placed under arrest, Mendoza explained that a friend named Peggy had given her the money to pay back a debt. However, when the officer asked Mendoza more about Peggy, Mendoza admitted that she had been lying to him and that she did not get the money from anyone by that name. Mendoza instead explained she received the money from another person she knew but whose name she could not pronounce and had no means of contacting. Mendoza further said that she paid Haman ten dollars to cash the one hundred dollar bill for smaller bills.
Mendoza was charged with one count of forgery, Idaho Code § 18-3601, with a persistent violator enhancement, I.C. § 19-2514. At trial, she testified that she found $240, including the two one hundred dollar bills, in the restroom of a store in an envelope with the name "Peggy" written on it. Mendoza admitted to lying to the officer in her previous explanations on how she acquired the money. She said she lied to the officer because she believed she could be arrested for keeping the money that she found. Mendoza was found guilty on the forgery charge and the district court entered a judgment of conviction and a unified sentence of fifteen years with two years determinate. Mendoza filed an Idaho Criminal Rule 35 motion for reduction of sentence, which the district court denied. Mendoza appeals claiming the existence of prosecutorial misconduct and an excessive sentence.
A. Prosecutorial Misconduct
Mendoza asserts that the prosecutor's comments during closing and rebuttal closing arguments were misconduct that rose to the level of fundamental error because it resulted in her being denied due process of law and was in violation of her right to a fair trial guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article 1, Section 13 of the Idaho Constitution.*fn1 Recently in State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court clarified the fundamental error doctrine that applies 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:
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 228, 245 P.3d at 980. In regard to the harmless error analysis, a defendant bears the burden of proving there is a reasonable possibility that the error affected the outcome of the trial. Id. at 226, 245 P.3d at 978.
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 the 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. This includes the right to express how, from that party's perspective, the evidence confirms or calls into doubt the credibility of particular witnesses. Sheahan, 139 Idaho at 280, 77 P.3d at 982. It is 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 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 ...