from the District Court of the First Judicial District, State
of Idaho, Kootenai County. Hon. Steven Verby, District Judge.
D. Frederickson, State Appellant Public Defender, Boise, for
appellant. Maya P. Waldron, Deputy State Public Defender
Lawrence G. Wasden, Idaho Attorney General, Boise, for
respondent. Kenneth K. Jorgenson, Deputy Attorney General
BURDICK, CHIEF JUSTICE.
appeal arising out of Kootenai County, Gregg James Miller
challenged his convictions for injury to a child and felony
eluding. As to the injury to a child conviction, Miller
argued the jury instruction, combined with the
prosecutor's closing argument, created a fatal variance
with the information. Miller also argued the prosecutor
committed prosecutorial misconduct during closing arguments
by appealing to the emotions, passions, and prejudices of the
jury, and by misstating the evidence. Miller appealed his
judgment of conviction and sentence to the Court of Appeals,
which affirmed. Miller timely filed a petition for review
which this Court granted. We affirm the district court's
judgment of conviction and clarify the fundamental error
doctrine articulated in State v. Perry, 150 Idaho
209, 226, 245 P.3d 961, 978 (2010).
FACTUAL AND PROCEDURAL BACKGROUND
April 2016, Miller's wife, Rochelle, called police after
she and Miller had a verbal dispute that resulted in Miller
driving off aggressively with the couple's minor son,
S.A.M., in the car. Officer Sanchez arrived at the
Millers' home and was speaking with Rochelle when Miller
drove near the house. Rochelle pointed out Miller's
vehicle, and Officer Sanchez walked towards his patrol car,
at which time Miller quickly reversed his vehicle and drove
away. Officer Sanchez began to pursue Miller and activated
his siren and overhead lights. Miller drove away quickly and
Officer Sanchez estimated Miller was driving 40
miles-per-hour in a 15 miles-per-hour zone. Miller drove past
a number of pedestrians near the roadway. Miller eventually
stopped his vehicle in a field and S.A.M. exited the vehicle
and ran to a nearby residence. Miller exited the vehicle and
started walking away from Officer Sanchez. Miller was then
ordered to the ground at gunpoint and arrested.
was charged with felony eluding a police officer pursuant to
Idaho Code section 49-1404(2) and misdemeanor injury to a
child pursuant to Idaho Code section 18-1501(2). Miller's
trial counsel did not object to the proposed jury
instructions. A jury convicted Miller on both counts, and he
was sentenced to a term of four years, one year fixed, for
the eluding charge, and was given credit for time served for
the injury to a child charge. Miller appealed to the Court of
Appeals, alleging two instances of fundamental error.
State v. Miller, No. 45028, 2018 WL 3413827, at *1
(Idaho Ct. App. July 13, 2018). First, he argued there was a
fatal variance between the information and jury instructions,
and second, he argued the prosecutor committed misconduct.
Id. The Court of Appeals affirmed the conviction and
sentence. Id. This Court granted Miller's
petition for review.
ISSUES ON APPEAL
Whether the jury instructions, when combined with the
prosecutor's statement in closing argument, constituted a
fatal variance from the information.
Whether the prosecutor committed prosecutorial misconduct
during closing arguments.
STANDARD OF REVIEW
cases that come before this Court on a petition for review of
a Court of Appeals decision, this Court gives serious
consideration to the views of the Court of Appeals, but
directly reviews the decision of the lower court."
State v. Schall, 157 Idaho 488, 491, 337 P.3d 647,
650 (2014) (quoting State v. Oliver, 144 Idaho 722,
724, 170 P.3d 387, 389 (2007)). "Where a defendant
alleges that a constitutional error occurred at trial, we
must first determine whether a contemporaneous objection was
made." State v. Bernal, 164 Idaho 190, 193, 427
P.3d 1, 4 (2018) (quoting State v. Hall, 163 Idaho
744, 766, 419 P.3d 1042, 1064 (2018). "If the alleged
error was not followed by a contemporaneous objection, it
must be reviewed under the fundamental error doctrine."
Id. (citing State v. Perry, 150 Idaho 209,
228, 245 P.3d 961, 980 (2010)).
previously stated that in order to obtain relief under the
fundamental error doctrine:
(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.
Perry, 150 Idaho at 226, 245 P.3d at 978. However,
based on the application of Perry in the years that
have followed the decision, as well as oral arguments made by
appellate counsel in this case, we wish to take this
opportunity to clarify Perry.
we address the second prong of Perry that states
"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." Id. We
reemphasize that in order to satisfy this prong of
Perry a defendant bears the burden of showing clear
error in the record. This means the record must contain
evidence of the error and the record must also contain
evidence as to whether or not trial counsel made a tactical
decision in failing to object. If the record does not contain
evidence regarding whether counsel's decision was
strategic, the claim is factual in nature and thus more
appropriately addressed via a petition for post-conviction
relief. As the Court of Appeals observed, when stating the
second prong of Perry is satisfied, appellant's
counsel often contends "it is clear from the record that
the failure to object was not tactical" and that
"failing to object could not have benefitted the
defendant." Miller, No. 45028, 2018 WL 3413827,
at *4 n. 2. However, neither of those statements demonstrates
that it is clear that the record contains evidence that the
failure to object was a tactical decision. Thus, we clarify
that whether trial counsel made a tactical decision in
failing to object is a claim that must be supported by
evidence in the record. Appellate counsel's opinion that
the decision could not have been tactical does not satisfy
the second prong of Perry.
we clarify the third prong of Perry that states
"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." Perry, 150 Idaho at 226,
245 P.3d at 978. In dicta that followed the holding in
Perry, this Court articulated that, as to the third
prong, the defendant bears the burden of showing there is a
"reasonable possibility" that the error affected
the outcome of the trial. Id. In the years following
Perry, we have cited both the "error affected
the outcome" and the "reasonable possibility"
language when discussing the third prong of Perry.
See e.g., Bernal, 164 Idaho at 193, 427
P.3d at 4. However, the "reasonable possibility"
language has resulted in confusion among litigants as to what
standard applies, with some parties arguing the standard
should be the same "reasonable probability"
standard applicable in ineffective assistance of counsel
cases. See Strickland v. Washington, 466 U.S. 668,
694 (1984); Marr v. State, 163 Idaho 33, 37, 408
P.3d 31, 35 (2017). We take this opportunity to clarify that
the third prong of Perry requires that the defendant
demonstrate that the clear error in the record-i.e.,
the error identified in the first and second prongs-actually
affected the outcome of the trial proceedings. Whether the
error affected the trial proceedings must be clear from the
appellate record. In so requiring, we note that the words
"reasonable possibility" are no longer appropriate
or descriptive of the third prong of
Whether the jury instruction, in conjunction with a statement
in the prosecutor's closing argument, constituted a fatal
variance from the information.
instructions should match the allegations in the charging
document as to the means by which a defendant is alleged to
have committed the charged crime." State v.
Bernal, 164 Idaho 190, 194, 427 P.3d 1, 5 (2018) (citing
State v. Hooper, 145 Idaho 139, 146-47, 176 P.3d
911, 918-19 (2007). "Failure to do so creates a
variance." Id. (citing State v. Folk,
151 Idaho 327, 342, 256 P.3d 735, 750 (2011). "A
variance becomes fatal when it violates due process."
The general rule that allegations and proof must correspond
is based upon the obvious requirements (1) that the accused
shall be definitely informed as to the charges against him,
so that he may be enabled to present his defense and not be
taken by surprise by the evidence offered at the trial; and