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State v. Miller

Court of Appeals of Idaho

July 13, 2018

STATE OF IDAHO, Plaintiff-Respondent,
v.
GREGG JAMES MILLER, Defendant-Appellant.

          Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Steven C. Verby, District Judge.

         Judgment of conviction and sentence, affirmed.

          Eric D. Fredericksen, State Appellate Public Defender; Maya P. Waldron, Deputy Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

          HUSKEY, JUDGE.

         Gregg James Miller appeals from his judgment of conviction and sentence for eluding a police officer and injury to child. Miller argues two instances of fundamental error arose during his trial. First, he asserts one of the jury instructions, combined with a statement from the prosecutor's closing argument, created a fatal variance from the information. Second, he argues the prosecutor committed misconduct during closing argument. The judgment of conviction and sentence is affirmed.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Miller's wife called the police after she saw Miller driving erratically in their neighborhood with their son in the vehicle. An officer responded and met Miller's wife in front of the house. While Miller's wife was discussing her concerns with the officer, Miller's wife pointed out Miller, who was driving towards the house. As the officer went to speak to Miller, Miller began driving away, in reverse, from the officer. Miller then turned his vehicle around and drove away as the officer turned on his overhead lights and pursued Miller. The officer estimated Miller was traveling at forty miles per hour in the neighborhood's fifteen mile-per-hour zone. Miller drove past a number of bystanders, navigated a few turns, and eventually stopped in a field. His son got out of the vehicle and ran away from the scene towards a residence while Miller got out of the vehicle and walked slowly in the other direction. The officer ordered Miller to the ground at gunpoint and arrested him.

         Miller was charged with felony eluding a police officer, in violation of Idaho Code § 49-1404(2), and misdemeanor injury to child, in violation of I.C. § 18-1501(2). Concerning the injury to child charge, the information alleged Miller violated the statute "by driving an automobile, with the child as a passenger, in an aggressive or reckless manner and while eluding law enforcement." At trial, the jury was instructed that Miller was "charged with the crime of Injury to a Child, alleged to have been committed as follows: . . . by driving an automobile, with the child as a passenger, in an aggressive or reckless manner and while eluding law enforcement." The jury was also instructed about the elements of the crime:

         In order for the Defendant to be guilty of Injury to a Child, the state must prove each of the following:

1. On or about April 16, 2016;
2. In the State of Idaho;
3. The Defendant Gregg James Miller;
4. Had the care or custody of S.A.M.;
5. Who was a child under 18 years of age, and;
6. The Defendant willfully caused or permitted the child to be placed in a situation that may have endangered the child's person or health.
If any of the above has not been proven beyond a reasonable doubt, you must find the Defendant not guilty. If each of the above has been proven beyond a reasonable doubt, then you must find the Defendant guilty.

         Additionally, the jury was instructed that it must decide the case using the evidence before it and that the lawyers' arguments were not evidence. Defense counsel made no objection to any of these instructions.

         During closing argument, the prosecutor discussed the dangerous driving behavior Miller exhibited when he "came within about 5 feet of this group of elderly persons that were standing outside the church on the roadway. About 10 feet from a group of children. . . . Those also were near hits." The prosecutor also stated if a bicyclist "had just taken a few more strides on his bike, he may not have been here for you today to testify for ...


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