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State v. Alwin

Court of Appeals of Idaho

December 12, 2017

STATE OF IDAHO, Plaintiff-Respondent,
v.
JEFFREY LYNN ALWIN, Defendant-Appellant.

         2017 Opinion No. 66

         Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Cynthia K. C. Meyer, District Judge.

         Judgment of conviction for eluding a peace officer, vacated and case remanded.

          Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent.

          GUTIERREZ, Judge.

         Jeffrey Lynn Alwin appeals from his judgment of conviction for one count of eluding a peace officer, which was entered after a jury found him guilty. Alwin asserts that the district court erred in admitting a booking photograph, which he contends is prohibited propensity evidence under Idaho Rule of Evidence 404(b). Alwin further contends that the prosecutor committed misconduct rising to the level of fundamental error during closing argument. Alwin asks this Court to vacate the judgment of conviction. For the reasons explained below, we vacate the judgment of conviction and remand.

         I.

         FACTUAL AND PROCEDURAL BACKGROUND

         At approximately 1:30 a.m. on August 3, 2015, an officer spotted a speeding vehicle and proceeded to effectuate a traffic stop. He provided the vehicle's Montana license plate number to dispatch and approached the vehicle. The driver never looked directly at the officer; the officer observed approximately three quarters of the driver's face at one point, but he was looking away from the officer at other points during the twenty-two-second stop. After briefly interacting with the officer, the driver sped away, reaching speeds of approximately 120 miles per hour. The officer pursued the car and called for backup. The driver eluded police.

         Approximately fifteen minutes after the officer initially stopped the vehicle, he used the computer in his patrol vehicle to determine that the vehicle was registered to Alwin. The officer then viewed a photograph of Alwin and determined the driver was the person in the photograph. The photograph was a booking photograph, but it did not contain placards, identifying numbers, a side view, or anything else that would indicate that it was a booking photograph other than the jail issued clothing Alwin was wearing. Alwin was charged with felony eluding of a peace officer, Idaho Code § 49-1404(2).

         During trial, the State sought to introduce into evidence the booking photograph relied on by the officer for identification purposes. Alwin objected under I.R.E. 404(b). The State responded that no conduct was being alleged. Neither party mentioned that it was a booking photograph or explained why the photograph constituted Rule 404(b) evidence. The district court did not see the photograph up close prior to admitting it and consequently did not know it was a booking photograph. As a result, the district court found the photograph did not constitute conduct under I.R.E. 404(b), overruled the objection, and admitted the exhibit.

         Alwin proceeded to put on an alibi defense, with his half-brother testifying that Alwin was with his half-brother in Montana during the time of the police chase. Alwin also testified that two other individuals, one with a Russian-sounding name, had access to a spare key to the vehicle. Alwin also called an identification expert to discredit the officer's post-chase identification.

         The jury found Alwin guilty. Alwin moved for a new trial on the basis that the district court erred by admitting the booking photograph. After a hearing on the motion for a new trial, the motion was denied. The district court entered a judgment of conviction and sentenced Alwin to a unified sentence of two years, with a minimum period of confinement of one year, but suspended the sentence ...


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