from the District Court of the Fourth Judicial District,
State of Idaho, Ada County. Hon. Deborah A. Bail, District
judgment of the district court is affirmed.
D. Fredericksen, State Appellate Public Defender, for
Appellant. Sally Jane Cooley argued.
Lawrence G. Wasden, Attorney General, for respondent.
Theodore Steven Tollefson argued.
Jacob Bernal appeals his judgment of conviction. Bernal
argues a fatal variance between the charging document and two
jury instructions denied him due process amounting to
fundamental error. Bernal also contends two instances of
prosecutorial misconduct amounted to fundamental error. We
affirm the district court's judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Becerra and Bernal dated for approximately eight years. By
March 2016, their relationship was strained. One afternoon,
Carmen was visiting her cousin's house in Meridian.
Bernal showed up and asked her if they could talk. Carmen
agreed to meet Bernal at his aunt's house in Boise.
Carmen left her cousin's house in an SUV; Bernal left in
a blue Buick. On their way to Boise, both Carmen and Bernal
drove down Five Mile Road until they were stopped by road
construction. While they were stopped, Bernal got out of his
vehicle and walked toward Carmen, who was stopped behind him.
Carmen testified Bernal looked angry, so she turned onto a
side street to avoid a confrontation.
testified she was driving fast so she could get away from
Bernal, but he got back into his vehicle and followed her.
She stated she was scared because Bernal was "tailing
her." She continued driving through various side streets
to avoid Bernal, and when she turned onto Granger Avenue, she
sped up. Carmen testified that Bernal was matching her speed.
While Bernal was following Carmen, she was on the phone with
her brother, Gustavo Becerra. Gustavo testified that he could
hear screaming, speeding, braking, commotion, and then Carmen
abruptly hung up.
on Granger Avenue, Carmen hit her brakes, causing Bernal to
lose control, spin out, and crash into a parked vehicle. The
owner of the parked vehicle, Mr. Le, testified he saw a blue
Buick hit his vehicle, but could not positively identify the
driver. After the collision, Carmen waited to see if Bernal
was okay. After Bernal exited his vehicle, Carmen drove to
her home where she lived with her mother, Gustavo, and
Gustavo's family. Gustavo, who was not at home at the
time, drove to their house where he met Carmen and let her
testified when he was a few blocks from his house, he saw
Bernal "very fast-paced, walking, look[ing] determined,
with his hands in his pocket" heading toward the house.
Gustavo stated he was worried about his family, especially
his wife and son, so when he got home, he grabbed a baseball
bat, stepped outside, placed the bat against the side of the
house, and waited for Bernal to arrive. Almost immediately,
Bernal arrived on foot. As Bernal was approaching the house,
Gustavo told Bernal to leave. As Bernal got closer, Gustavo
testified that he saw Bernal's hand in his pocket and
that "he had ahold of something" as he was walking
toward him. When Bernal made it halfway through the yard,
Gustavo, who was still on the porch, picked up his baseball
seeing the knife, Gustavo testified he hit Bernal in the left
leg with the bat. After he was hit, Bernal took a step back,
extended the blade of his knife, and assumed an aggressive
posture. Gustavo stated that when he saw the knife he backed
up and told Bernal to leave. Bernal then asked for a ride,
started walking toward the front door, and lunged at Gustavo
when he stepped in his way. Gustavo again hit Bernal with the
bat, this time in the ribs. Gustavo testified that Bernal
backed up and told him, "I'll be back,"
"I'm gonna catch you sleeping," and then
"I'm gonna F you up." According to Gustavo,
Bernal kept making threats as he walked away. Gustavo
followed Bernal to escort him off the property. Gustavo
stated Bernal made his way into the street, then
"whipped the knife out of his pocket," turned
around, and lunged at him. Gustavo backed up to dodge the
knife and stayed in his yard as Bernal made additional
threats, turned around, and slowly walked away. Gustavo
testified that the knife missed his face by only three to
four inches. In addition to Gustavo's testimony regarding
the assault, Carmen testified that she saw Bernal lunge
toward Gustavo and saw Gustavo hit Bernal with the bat.
was charged by information with three crimes: aggravated
assault with a deadly weapon, Idaho Code sections 18-901(a)
and 18-905(a); reckless driving, Idaho Code section 49-1401;
and leaving the scene of an accident, Idaho Code section
49-1301. The State also charged a sentencing enhancement
under Idaho Code section 19-2520 as a separate count in the
information. At the close of evidence at trial, Bernal
did not object to the proposed jury instructions. During
closing arguments, Bernal argued he did not have a knife,
that Gustavo was not a credible witness, and that Gustavo was
the aggressor. He also argued that Mr. Le did not identify
him as the driver and "[w]e don't really know whose
car, if any, Mr. Bernal hit." Additionally, Bernal
argued Carmen credibly testified, contrary to her previous
statement to the police, that she did not see Bernal with a
jury found Bernal guilty on all counts, including the
sentencing enhancement, and the district court entered
judgment. Bernal timely filed a notice of appeal.
STANDARD OF REVIEW
a defendant alleges that a constitutional error occurred at
trial, we must first determine whether a contemporaneous
objection was made." State v. Hall, 163 Idaho
744, 766, 419 P.3d 1042, 1064 (2018) (citing State v.
Perry, 150 Idaho 209, 245 P.3d 961 (2010)). If the
alleged error was not followed by a contemporaneous
objection, it must be reviewed under the fundamental error
doctrine. Perry, 150 Idaho at 228, 245 P.3d at 980.
In order to obtain relief under the fundamental error
doctrine, a defendant must demonstrate: (1) "one or more
of the defendant's unwaived constitutional rights were
violated"; (2) the constitutional error is "clear
or obvious" on the record "without the need for any
additional information," including information "as
to whether the failure to object was a tactical
decision"; and (3) "the error affected the
defendant's substantial rights," by showing a
reasonable possibility that the error "affected the
outcome of the trial court proceedings." Id. at
226, 245 P.3d at 978.
ISSUES ON APPEAL
Whether there were fatal variances between the information
and the district court's jury instructions.
Whether the State committed prosecutorial misconduct during
The variances between the information and the jury
instructions do ...