State v. Lumpkin

               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 46703

STATE OF IDAHO,                               )
                                              )       Filed: October 22, 2020
       Plaintiff-Respondent,                  )
                                              )       Melanie Gagnepain, Clerk
v.                                            )
                                              )       THIS IS AN UNPUBLISHED
ZANE EUGENE LUMPKIN,                          )       OPINION AND SHALL NOT
                                              )       BE CITED AS AUTHORITY
       Defendant-Appellant.                   )
                                              )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Bonner County. Hon. Barbara Buchanan, District Judge.

       Judgment of conviction and sentence for possession of a controlled substance,
       methamphetamine, and persistent violator enhancement, affirmed; and order for
       public defender reimbursement, vacated.

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

       Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Chief Judge
       Zane Eugene Lumpkin appeals from his judgment of conviction and sentence for
possession of a controlled substance, methamphetamine, Idaho Code § 37-2732(c)(1), with a
persistent violator sentencing enhancement, I.C. § 19-2514.           Lumpkin first argues the
prosecutor’s references to a jury instruction during closing argument amounted to fundamental
error. Second, Lumpkin argues the district court abused its sentencing discretion by imposing a
five-year sentence and ordering Lumpkin to pay $500 in public defender reimbursement. We
affirm the district court’s judgment of conviction and sentence. However, we vacate the district
court’s order for public defender reimbursement.




                                                  1
                                                I.
                      FACTUAL AND PROCEDURAL BACKGROUND
       The    State   charged      Lumpkin   with    possession   of   a   controlled    substance,
methamphetamine, with an enhancement alleging Lumpkin is a persistent violator. Lumpkin
pleaded not guilty and the case went to trial. During trial the State called Officer Fisher, the
arresting officer, who testified that he found a pipe in Lumpkin’s pocket and that Lumpkin told
him the pipe was used to smoke methamphetamine. Officer Fisher tested the residue inside the
pipe, which came back positive for methamphetamine. During the trial the State admitted into
evidence the pipe Officer Fisher found on Lumpkin’s person at the time of his arrest. The State
also called Christina Rayner, a forensic scientist, who testified that she tested the residue from
the pipe at the Idaho State Laboratory and the residue tested positive for methamphetamine.
During Lumpkin’s testimony he admitted that, at the time of his arrest, he planned to purchase
methamphetamine, the pipe found on him was used to smoke methamphetamine, and he knew
the pipe contained residue but the residue was not usable because it was “blow off” or “garbage”
from prior methamphetamine use.
       After the close of evidence, the district court gave the jury various instructions, including
Jury Instruction 18, which read:
               Certain items that have been admitted into evidence may contain
       controlled substance residue. To preclude contamination of the evidence and to
       preclude such residue from coming into contact with you, the evidence has been
       placed in sealed plastic bags. You are not to unseal the plastic bags when viewing
       the evidence during deliberations.
During rebuttal closing argument, the prosecutor referenced Jury Instruction 18 and stated:
       This is interesting. So it tells you, certain items that have been admitted into
       evidence may contain substance residue. To preclude contamination of the
       evidence and to preclude such residue from coming into contact with you, the
       evidence has been placed in sealed plastic bags.
                You are not to unseal the plastic bags when dealing with the evidence
       during deliberation. What do you think that means? If there’s nothing in those
       ziplock bags, why would you have a jury instruction telling you don’t open the
       bag because you might come in contact with it, right? So if you want to talk
       about, well, it’s not a weighable amount, it’s nothing, I think the defendant
       testified that it’s nothing, it’s garbage. It’s nothing, it’s blow-off.
                If it was nothing, if it’s nothing, literally, why would you have an
       instruction specifically telling you don’t open the bag, because it might
       contaminate you. There’s obviously something in there, right; and Ms. Rayner is
       able to test it.

                                                2
Defense counsel made no objection to these statements. The jury found Lumpkin guilty of
possession of methamphetamine and the persistent violator enhancement.
        Pursuant to his request, Lumpkin was sentenced the following the day without a
Presentence Investigation Report. The State recommended a unified sentence of eight years,
with five years determinate. Lumpkin recommended the district court impose “credit for time
served, to suspend the enhancement with the understanding that he is going to be extradited to
Washington, Judge, and you put him on two years of probation and suspend again the
enhancement.” The district court imposed a unified term of incarceration of five years, with two
years determinate, and declined to place Lumpkin on probation. Before imposing Lumpkin’s
sentence, the district court stated:
                You have a horrible criminal history and you are a persistent violator in
        Idaho. Because of that and the jury’s finding, I have to impose at least a five-year
        underlying sentence. Character and attitude, I don’t have a presentence report,
        but Mr. Lumpkin, you certainly did not make this process easy.
                The Court took what I think is a very unusual step for this Court, but I
        brought you over to try to explain to you what you were looking at in this case;
        and actually, the State had made what I thought was quite a fair offer. And you,
        just out of hand, were not even willing to consider that.
                I tried to explain that you’re going to jury trial in a case where there didn’t
        appear to be any defense, just in reading the reports, and that you were looking at
        the persistent violator. And you insisted on going to trial. Mr. Lumpkin,
        everyone has a right to go to trial.
                Then we get to the end of the trial and you’re--yesterday afternoon you’re
        talking about being railroaded and how unfair everything was.
                So I just wanted to remind you of the fact of the choices that you made.
In addition to Lumpkin’s prison sentence, the district court ordered Lumpkin to pay “$500 to
Bonner County to repay some of the costs of the public defender in this case for what certainly I
think was a strange decision to go to trial yesterday.”
        Defense counsel did not object to any of the district court’s statements, the term of
sentence, or the order for reimbursement. Lumpkin timely appeals.
                                                  II.
                                       STANDARD OF REVIEW
        Generally, issues not raised below may not be considered for the first time on appeal.
State v. Fodge, 

121 Idaho 192

, 195, 

824 P.2d 123

, 126 (1992). However, when a defendant
alleges that a constitutional error occurred at trial and the alleged error was not followed by a
contemporaneous objection, the claim of error must be reviewed under the fundamental error

                                                  3
doctrine. State v. Miller, 

165 Idaho 115

, 119, 

443 P.3d 129

, 133 (2019). In order to obtain relief
under the fundamental error doctrine, the defendant must demonstrate three things. First, the
defendant must show that one or more of the defendant’s unwaived constitutional rights were
violated.

Id. Second, the error

must be clear and obvious, meaning the record must demonstrate
evidence of the error and evidence as to whether or not trial counsel made a tactical decision in
failing to object.

Id. Third, the defendant

must demonstrate that the error affected the
defendant’s substantial rights, which means the error identified in the first and second prongs of
the test actually affected the outcome of the trial. Id. at 

119-20, 443 P.3d at 133-34

.
       An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 

134 Idaho 271

, 276, 

1 P.3d 299

, 304 (Ct. App. 2000). When a trial court’s discretionary
decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine
whether the lower court: (1) correctly perceived the issue as one of discretion; (2) acted within
the boundaries of such discretion; (3) acted consistently with any legal standards applicable to
the specific choices before it; and (4) reached its decision by an exercise of reason. State v.
Herrera, 

164 Idaho 261

, 270, 

429 P.3d 149

, 158 (2018).
                                                III.
                                           ANALYSIS
       Lumpkin first argues the State committed prosecutorial misconduct amounting to
fundamental error when it referenced Jury Instruction 18 during closing argument. The State
argues Lumpkin’s assertion fails the fundamental error analysis. Second, Lumpkin argues the
district court abused its sentencing discretion by imposing an excessive sentence and public
defender reimbursement as punishment for Lumpkin’s decision to go to trial. The State argues
that Lumpkin fails to show the district court abused its discretion because the sentence and
reimbursement were not punitively imposed.
A.     Lumpkin Failed to Establish That the Prosecutor’s Statements Amounted to
       Fundamental Error
       Lumpkin argues, and the State concedes, that the prosecutor’s statements were improper.
The parties disagree that the improper statements amounted fundamental error.
       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.; State v. Reynolds, 

120 Idaho 445

, 450, 

816 P.2d 1002

, 1007 (Ct. App. 1991). Both sides
                                                 4
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); Phillips, 144
Idaho at 

86, 156 P.3d at 587

.
        While 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. Assuming without deciding

the improper statements violated one of Lumpkin’s unwaived
constitutional rights, Lumpkin has not established fundamental error under either the second or
third prongs of the fundamental error standard. Under the second prong of the analysis, the
defendant must show the record contains evidence of the error and evidence that defendant’s
counsel did not make a tactical decision not to object to the error. Miller, 165 Idaho at 

119, 443 P.3d at 133

. In determining whether the lack of an objection by trial counsel was tactical, the
court begins with the strong presumption that counsel was competent and trial tactics were based
on sound legal strategy. State v. Saenz, 

167 Idaho 443

, 451, 

470 P.3d 1252

, 1258 (Ct. App.
2020); see also State v. Dunlap, 

155 Idaho 345

, 383, 

313 P.3d 1

, 39 (2013); Cook v. State, 

157 Idaho 775

, 778, 

339 P.3d 1179

, 1182 (Ct. App. 2014). The defendant’s opinion that counsel did
not make a strategic decision is not enough to overcome this presumption of competence.
Miller, 165 Idaho at 

119, 443 P.3d at 133

. Rather, there must be actual evidence in the record
that demonstrates the lack of objection was not tactical. Saenz, 167 Idaho at 

451, 470 P.3d at 1258

; Miller, 165 Idaho at 

119, 443 P.3d at 133

.
        Here, Lumpkin does not point to evidence in the record to support his claim that his
counsel did not make a strategic decision by not objecting to the State’s remarks. Instead, he
broadly argues the decision not to object cannot have been tactical because “there is simply no
strategic advantage that can possibly be gained by failing to object” to the prosecutor’s
statements in this case. Lumpkin’s opinion that the silence could not have been tactical because
it did not support his theory of defense is not enough to satisfy the second prong of the
fundamental standard analysis. Consequently, Lumpkin has not overcome the presumption that
defense counsel’s silence was strategic. Even if Lumpkin established the second prong, he has

                                                       5
not demonstrated that the error actually affected the outcome of the trial as required under the
third prong of the analysis. Miller, 165 Idaho at 

119-20, 443 P.3d at 133-34

.
        Although the improper statements occurred during the State’s rebuttal argument, the
timing of the statements does not mean that they actually impacted the trial’s outcome or are
outside the reach of a remedial instruction. Saenz, 167 Idaho at 

453, 470 P.3d at 1260

. Here,
Lumpkin has not met his burden to show the prosecutor’s statement referencing the jury
instruction actually impacted the trial because the district court instructed the jury about what
was, and was not, proper evidence for consideration. Misconduct may be remedied by an
instruction from the district court informing the jury that the attorneys’ comments are not
evidence. State v. Alwin, 

164 Idaho 160

, 169, 

426 P.3d 1260

, 1269 (2018).
       First, the district court instructed the jury to consider “only the evidence admitted in this
trial,” which “consists of the testimony of the witnesses, the exhibits offered and received, and
any stipulated or admitted facts.” The jury was instructed that arguments and statements made
by the lawyers during closing arguments were not evidence. The district court specifically told
the jury that it “must not conclude from the fact that an instruction has been given that the court
is expressing any opinion as to the facts.” Lumpkin does not argue the jury did not follow the
instructions of the court. Instead, Lumpkin argues the prosecutor’s statements referencing Jury
Instruction 18 actually affected the trial’s outcome because it eliminated one of the elements of
the offense of possession of a controlled substance by telling the jury that the instruction proved
the substance was methamphetamine. This Court is not persuaded.
       During the trial, Lumpkin testified that he knew the pipe contained residue from smoking
methamphetamine, albeit that the residue was “blow off” or “garbage” residue.             Lumpkin
admitted to willingly possessing the pipe and stated that at the time he was arrested, he intended
to purchase methamphetamine. Officer Fisher testified that he selected a methamphetamine field
test for the pipe because of the residue in the pipe, his training and experience, and Lumpkin’s
admission at the time of his arrest that the pipe was used to smoke methamphetamine. The
State’s forensic scientist testified the laboratory test she ran on the residue in the pipe tested
positive for methamphetamine. Lumpkin’s defense was that he did not believe or know the
residue in the pipe was usable methamphetamine, but instead he characterized the residue as
“blow off” or “garbage”--the residue remaining after methamphetamine had been smoked.
Moreover, Lumpkin overstates the language of Jury Instruction 18. The instruction did not state

                                                6
that the contents of the exhibit did contain methamphetamine, it only stated that the exhibit may
contain a controlled substance. Given the language of Jury Instruction 18, the evidence, and
Lumpkin’s assertion that the prosecutor’s comments eliminated the need for the State to prove
the substance was methamphetamine, is unpersuasive. The testimony established beyond a
reasonable doubt the substance was methamphetamine and the jury instructions properly
required the jury to find all elements of the offense beyond a reasonable doubt. Accordingly,
Lumpkin has not established fundamental error.
B.     Lumpkin Did Not Establish That the District Court Abused Its Discretion by
       Imposing a Unified Sentence of Five Years, With Two Years Determinate
       Lumpkin argues the district court abused its sentencing discretion and violated his rights
to a jury trial, due process, and to maintain his innocence by imposing a sentence in excess of his
requested sentence based on his decision to go to trial and his continued refusal to accept guilt.
Specifically, Lumpkin asserts the court abused its discretion by failing to act consistently with
applicable legal standards and within the confines of its discretion because it imposed the
sentence and public defender reimbursement as punishment for Lumpkin’s decision to go to trial.
In response, the State argues the district court’s sentence and order for public defender
reimbursement were based on proper considerations and, therefore, Lumpkin is unable to show
the district court abused its sentencing discretion.
       A sentence may represent such an abuse of discretion if it is shown to be unreasonable
upon the facts of the case. State v. Nice, 

103 Idaho 89

, 90, 

645 P.2d 323

, 324 (1982). A
sentence of confinement is reasonable if it appears at the time of sentencing that confinement is
necessary to accomplish the primary objective of protecting society and to achieve any or all of
the related goals of deterrence, rehabilitation, or retribution applicable to a given case. State v.
Toohill, 

103 Idaho 565

, 568, 

650 P.2d 707

, 710 (Ct. App. 1982). It is improper for a court to
penalize a defendant for exercising his right to go to trial. State v. Lawrence, 

112 Idaho 149

,
157, 

730 P.2d 1069

, 1077 (Ct. App. 1986). On the other hand, a sentencing judge must consider
the primary goals of sentencing, including rehabilitation, and many courts have held that an
acknowledgement of guilt is a critical first step toward rehabilitation. United States v. Hull, 

792 F.2d 941

, 943 (9th Cir. 1986); United States v. Floyd, 

496 F.2d 982

, 989 (2d Cir. 1974);
Gollaher v. United States, 

419 F.2d 520

, 530 (9th Cir. 1969).
       Here, the district court noted Lumpkin’s decision to maintain his innocence and go to
trial when it imposed sentence. The reference the court made to Lumpkin’s choice to proceed to
                                                  7
trial was immediately followed by its statement that “everyone has a right to go to trial,”
explicitly recognizing both the relevant law and the application of that law to the facts of
Lumpkin’s case. To show a violation of due process, a defendant must demonstrate the judge’s
vindictiveness or intent to punish him for exercising his rights. Stedtfeld v. State, 

114 Idaho 273

,
276, 

755 P.2d 1311

, 1314 (Ct. App. 1988). Aside from the district court’s acknowledgement of
Lumpkin’s decision to go to trial, Lumpkin points to no evidence to suggest the court’s
imposition of sentence was impermissibly motivated. The district court ultimately determined
that a unified five-year sentence, with two years determinate, would best serve the goals of
sentencing based on Lumpkin’s criminal history in Idaho and Washington. The court stated
“anything less than some prison would not meet the goals of sentencing.” The court properly
considered Lumpkin’s criminal history, his character and attitude throughout the proceedings,
and his potential for rehabilitation when it imposed sentence.        Additionally, the persistent
violator enhancement required the district court to impose a minimum sentence of five years.
I.C. § 19-2514. The imposed unified sentence of five years, with two years determinate, was
within the statutory limit of five years to life. Thus, the sentence imposed was based on proper
statutory considerations, not a desire to punish Lumpkin for proceeding to trial, and we cannot
conclude the district court abused its discretion when it imposed Lumpkin’s sentence.
C.     The District Court Abused Its Discretion by Ordering Public Defender
       Reimbursement
       Lumpkin also argues the district court abused its discretion by imposing reimbursement
for public defender services as punishment for his decision to go to trial. Reimbursement of
costs for legal services provided by the county to a needy person is authorized under I.C. § 19-
854(7), which provides:
               Upon conviction, notwithstanding the form of judgment or withheld
       judgment, plea of guilty or finding of guilt for any crime regardless of the original
       crime or number of counts, an indigent person who receives the services of an
       attorney provided by the county may be required by the court to reimburse the
       county for all or a portion of the cost of those services related to the conviction,
       plea of guilty or finding of guilt, unless the requirement would impose a manifest
       hardship on the indigent person. The current inability of the indigent person to
       pay the reimbursement shall not, in and of itself, restrict the court from ordering
       reimbursement.
       The district court ordered Lumpkin to pay “$500 to Bonner County to repay some of the
costs of the public defender in this case for what certainly I think was a strange decision to go to


                                                 8
trial yesterday.” As stated above, it is improper for a court to penalize a defendant for exercising
his right to go to trial. Lawrence, 112 Idaho at 

157, 730 P.2d at 1077

. Unlike the imposition of
sentence, where the district provided multiple reasons for imposing the sentence and explicitly
noted that Lumpkin had the right to go to trial, the district court provided one justification for its
order of reimbursement: Lumpkin’s “strange decision to go to trial” in light of the evidence of
his guilt.   The district court abused its discretion by ordering reimbursement because of
Lumpkin’s choice to proceed to trial. Consequently, the district court’s order imposing $500
public defender reimbursement is vacated.
                                                 IV.
                                          CONCLUSION
       Lumpkin did not establish the prosecutor’s statements during closing argument amounted
to fundamental error. Further, Lumpkin has failed to show the district court abused its discretion
in imposing a unified five-year sentence, with two years determinate. However, Lumpkin
established the district court abused its discretion in awarding public defender reimbursement.
Consequently, Lumpkin’s judgment of conviction and sentence are affirmed and the order
awarding $500 in public defender reimbursement is vacated.
       Judge GRATTON and Judge LORELLO CONCUR.




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