State v. Raper

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 50234

STATE OF IDAHO, )
) Filed: February 6, 2024
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
JUSTIN RYAN RAPER, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Richard S. Christensen, District Judge.

Judgment of conviction and sentence, affirmed.

Erik R. Lehtinen, State Appellate Public Defender; Jenny C. Swinford, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; Amy J. Lavin, Deputy Attorney General,
Boise, for respondent.
________________________________________________

GRATTON, Chief Judge
Justin Ryan Raper appeals from the district court’s judgment of conviction. Raper
contends that prosecutorial misconduct during closing arguments deprived him of a fair trial and
violated his due process rights. For the following reasons, we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Raper was stopped by police for following too close to the vehicle in front of him. Raper
consented to a search of his vehicle, and the officer found paraphernalia and a handgun. After a
records check, the officer learned that Raper had a previous felony conviction that prohibited him
from possessing firearms. The officer later learned that the handgun had been reported as stolen.
The State charged Raper with unlawful possession of a firearm, grand theft by possession of a
stolen firearm, possession of drug paraphernalia, and driving while suspended. At trial, the State
withdrew the charge of driving while suspended.

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The following exchange occurred during the beginning of the prosecutor’s closing
argument:
[Prosecutor]: Any time there’s a theft in a community, especially a smaller
community like ours, that matters; that’s important. You
know, someone’s home or their place of business or their
property in some way--
[Defense Counsel]: Your Honor, I’m going to object. This isn’t proper
argument.
[Court]: Overruled. It’s argument. Go ahead.
[Prosecutor]: Thank you. It’s important, right? It matters. And when you
have the theft of a gun, and when you have the person in
possession of that stolen gun being a convicted felon, not
allowed to be in possession at all of any firearms, he’s
driving around with that stolen gun hidden underneath one
of his car seats, he’s got a whole bunch of drug paraphernalia
in the car, well, that’s especially important.
[Defense Counsel]: Your Honor, again, this is attempting to inflame the jury.
This is improper argument.
[Court]: Overruled.
[Prosecutor]: The point is that this case matters, right? And so thank you
for being a juror, each of you, on this case.
The prosecutor continued by summarizing the evidence of guilt presented during the trial. The
jury found Raper guilty on all counts. Raper timely appeals.
II.
STANDARD OF REVIEW
Where a defendant claims that his or her right to due process was violated, we defer to the
trial court’s findings of fact, if supported by substantial evidence. State v. Smith, 135 Idaho 712,
720, 23 P.3d 786, 794 (Ct. App. 2001). However, we freely review the application of constitutional
principles to those facts found. Id.
The standard of review governing claims of prosecutorial misconduct depends on whether
the defendant objected to the misconduct at trial. State v. Garcia, 166 Idaho 661, 676-77, 462 P.3d
1125, 1140-41 (2020); State v. Severson, 147 Idaho 694, 715, 215 P.3d 414, 435 (2009). Where
there has been a contemporaneous objection to prosecutorial misconduct, we determine whether
the challenged conduct constitutes misconduct, and if so, whether the error was harmless. State v.
Beebe, 145 Idaho 570, 574, 181 P.3d 496, 500 (Ct. App. 2007). The harmlessness analysis
examines and weighs the probative force of the evidence untainted by error against the probative
force of the error itself. State v. Gardner, 169 Idaho 90, 99, 491 P.3d 1193, 1202 (2021). “When

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the effect of the error is minimal compared to the probative force of the record establishing guilt
beyond a reasonable doubt without the error, it can be said that the error did not contribute to the
verdict rendered and is therefore harmless.” Garcia, 166 Idaho at 674, 462 P.3d at 1138.
III.
ANALYSIS
Raper argues the prosecutor violated his right to due process and a fair trial by using
inflammatory tactics during closing argument which constitute misconduct. Specifically, Raper
contends the prosecutor’s emphasis on the importance of the case impermissibly appealed to the
jury’s emotions and inappropriately encouraged a conviction to protect the community. The State
argues the prosecutor’s statements do not amount to misconduct, were otherwise harmless, and the
district court’s jury instruction remedied any improper statement.1
Closing argument serves to sharpen and clarify the issues for resolution by the trier of fact
in a criminal case. State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (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).
Although our system of criminal justice is adversarial in nature, and the prosecutor is
expected to be diligent and leave no stone unturned, the prosecutor is nevertheless expected and
required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in
reviewing allegations of prosecutorial misconduct we must keep in mind the realities of trial. Id.
A fair trial is not necessarily a perfect trial. Id. When there has been a contemporaneous objection,
we determine factually if there was prosecutorial misconduct and then determine whether the error
was harmless. Id.; State v. Phillips, 144 Idaho 82, 88, 156 P.3d 583, 589 (Ct. App. 2007).
Prosecutorial misconduct does not necessitate the reversal of a conviction and a new trial for the
defendant if, in the context of the entire trial, the error was harmless. Beebe, 145 Idaho at 576,
181 P.3d at 502. Where a criminal defendant shows a reversible error based on a

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Jury instruction number 12 states:
Certain things you have heard or seen are not evidence, including: 1. arguments
and statements by lawyers. The lawyers are not witnesses. What they say in their opening
statements, closing arguments and at other times is included to help you interpret the
evidence, but is not evidence.
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contemporaneously objected-to constitutional violation, the State then has the burden of
demonstrating to the appellate court beyond a reasonable doubt that the constitutional violation
did not contribute to the jury’s verdict. State v. Johnson, 163 Idaho 412, 421, 414 P.3d 234, 243
(2018). Error will be deemed harmless if the appellate court is persuaded beyond a reasonable
doubt that the jury’s verdict would have been the same if the misconduct had not occurred. Beebe,
145 Idaho at 576, 181 P.3d at 502. A conviction will not be set aside for small errors or defects
that have little, if any, likelihood of having changed the results of the trial. State v. Baker, 161
Idaho 289, 299, 385 P.3d 467, 477 (Ct. App. 2016).
Prosecutorial misconduct occurs when the State attempts to secure a verdict on any factor
other than the law as set forth in the jury instructions and the evidence admitted at trial, including
reasonable inferences that may be drawn from that evidence. State v. Miller, 165 Idaho 115, 122,
443 P.3d 129, 136 (2019). The prosecutor has a duty to avoid misrepresentation of the facts and
unnecessarily inflammatory comments. Id. Inflammatory comments are those which are
“calculated to inflame the minds of jurors and arouse passion or prejudice against the defendant,
or [are] so inflammatory that the jurors may be influenced to determine guilt on factors outside the
evidence.” Id. at 123, 443 P.3d at 137 (quoting Sheahan, 139 Idaho at 280, 77 P.3d at 969). The
touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of
the trial, not the culpability of the prosecutor. Smith v. Phillips, 455 U.S. 209, 219 (1982). The
aim of due process is not the punishment of society for the misdeeds of the prosecutor, but
avoidance of an unfair trial to the accused. State v. Sanchez, 142 Idaho 309, 318, 127 P.3d 212,
221 (Ct. App. 2005).
Raper asserts the prosecutor’s statements improperly appealed to the jury’s emotions by
repeatedly emphasizing the jury’s especially important role in protecting the small community
from crime. The State argues the statements were not improper, did not carry the implications
urged by Raper, and did not violate Raper’s right to a fair trial. In closing, the prosecutor stated:
“Any time there’s a theft in a community, especially a smaller community like ours, that matters;
that’s important. You know, someone’s home or their place of business or their property in some
way.” (Emphasis added.) Continuing, the prosecutor reiterated, “It’s important, right? It matters.”
The prosecutor then noted that Raper was a convicted felon driving around with a stolen firearm
and drug paraphernalia, and stated, “well, that’s especially important.” Before recounting the
evidence of guilt presented during the trial, the prosecutor stated, “The point is that this case

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matters, right? And so thank you for being a juror, each of you, on this case.” Raper objected on
grounds that the statements were improper and appealed to the jury’s emotions. Although these
initial comments by the prosecutor can be said to have some appeal to the emotions of the jury,
they are insufficient to establish prosecutorial misconduct.
Contrary to Raper’s argument, the prosecutor’s comments in this case are not akin to those
in State v. Dempsey, 169 Idaho 19, 490 P.3d 19 (2021). In Dempsey the Idaho Supreme Court
found the prosecutor committed misconduct by arguing:
We need to protect the community. We need to protect this place we live and work
in. We need to protect future potential victims. And we can do that. We are in a
unique opportunity to hold someone accountable that will hopefully tell the rest of
the county that this is not okay.
Id. at 24, 490 P.3d at 24. These statements impermissibly urged the jury to convict to protect the
community and future victims. Urging the jury to convict based on factors other than the evidence
admitted at trial and the law as instructed, is improper, including urging the jury to protect the
community and future victims.
The prosecutor’s statements in this case, are not equivalent to those in Dempsey. Here,
there were no express claims of any duty to protect the community or future victims. The
prosecutor’s comment that a theft, especially in a small community involving a home or business
matters, could have a tendency to evoke a protective emotion in the jury, it also correctly refers to
the fact that the case involves a theft from a home or business in a small community. The
prosecutor’s next comment ties the importance of the case to the dangerous facts that it involves.
The prosecutor’s comments at the beginning of closing argument appear designed to attract the
jury’s attention to the importance of the case and the jury’s duty, and they only vaguely, and when
viewed alone, impliedly appeal to emotions. The statements permissibly reference the significance
of the case, recite the facts and evidence presented, and do not invite the jury to render a decision
based on emotion rather than the evidence.
Following these opening comments, the prosecutor reviewed the facts of the case and
evidence of Raper’s guilt. As an example, the prosecutor noted the testimony from the arresting
officer regarding the traffic stop and Raper’s arrest, including testimony describing a phone call
Raper made from the police car where he stated: “I’m a felon in possession of a firearm.” The
prosecutor proceeded to detail how each element for the offense had been proven. The prosecutor

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highlighted the jury’s important duty during deliberations to evaluate the evidence and render a
verdict.
The prosecutor’s statements do not rise to the level of inflammatory comments that appeal
to the sympathies and passions of the jury amounting to prejudice or violating due process. See
Severson, 147 Idaho at 719-20, 215 P.3d at 439-40 (finding inflammatory comments depicted
victim speaking to jurors from the grave not fundamental error because did not result in an unfair
trial or deprive the defendant of due process); Miller, 165 Idaho at 123, 443 P.3d at 137 (holding
prosecutor’s closing statements alleged if bicyclists had been further along the road he would have
been killed was a reasonable inference from the evidence and “within the considerable latitude
afforded to prosecutors during closing argument”). Additionally, these statements did not
misrepresent or mischaracterize the evidence. See Beebe, 145 Idaho at 575, 181 P.3d at 501. Raper
has not shown prosecutorial misconduct during closing argument. Therefore, we need not address
the State’s harmless error argument or the impact of the district court’s jury instruction.
IV.
CONCLUSION
The prosecutor’s closing argument did not constitute prosecutorial misconduct and did not
deprive Raper of his right to due process and a fair trial. Therefore, the judgment of conviction
and sentence are affirmed.
Judge HUSKEY and Judge LORELLO CONCUR.

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