State v. Miller, 165 Idaho 115

Background

In April 2016 Gregg James Miller drove away from police with his minor son S.A.M. as a passenger; officer pursuit ensued and Miller later stopped in a field where the child ran to a nearby house and Miller was arrested.
Miller was charged with felony eluding (Idaho Code §49-1404(2)) and misdemeanor injury to a child (Idaho Code §18-1501(2)).
The information alleged the injury-to-a-child offense occurred by "driving an automobile... in an aggressive or reckless manner and while eluding law enforcement."
Jury Instruction No. 21 tracked the statutory elements but did not mention driving or an automobile; defense counsel did not object to instructions.
In closing the prosecutor argued alternative theories including danger created after Miller stopped (e.g., child running and officer drawing his gun) and highlighted risks to bicyclists and pedestrians; Miller did not contemporaneously object at trial.
Miller appealed alleging (1) a fatal variance between the information and the instruction (aided by the prosecutor’s closing), and (2) prosecutorial misconduct in closing; the Idaho Supreme Court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether jury instruction + prosecutor’s closing created a fatal variance from the information	State: Instruction tracked statutory element "placed in a situation" and was consistent with charged conduct	Miller: Instruction omitted the alleged means (driving an automobile) and combined with closing allowed conviction on an uncharged means (post-stop danger)	No fatal variance; defendant was on notice and not surprised; no due-process violation
Whether prosecutor misstated evidence about bicyclist and appealed to passion	State: Comments were reasonable inferences from testimony about close pass and bicyclist’s fear	Miller: Statements suggested near-fatality and inflamed jury; misstated legal position of bicyclist	Not misconduct; statements were permissible inferences supported by testimony
Whether prosecutor misstated proximity to pedestrians and called “near hits”	State: Inference supported by officer testimony about people being close to roadway and dust kicked up	Miller: Misstated that pedestrians were on roadway and implied dangerous contact	Not misconduct; reasonable inference from testimony
Whether prosecutor misstated that child was present when officer drew his gun (mischaracterization)	State: Argument tied child running from car to dangerous situation	Miller: Evidence showed child had already run off before gun was drawn; statement was unsupported	Misconduct for that specific statement, but not fundamental error—jury instruction that arguments are not evidence and defense rebuttal cured prejudice

Key Cases Cited

State v. Perry, 150 Idaho 209 (Idaho 2010) (articulates fundamental-error three-prong test)
State v. Bernal, 164 Idaho 190 (Idaho 2018) (variance and prosecutorial-misconduct principles; notice and response to variant theories)
State v. Alwin, 164 Idaho 160 (Idaho 2018) (standard for unobjected-to prosecutorial misconduct to constitute fundamental error)
State v. Lankford, 162 Idaho 477 (Idaho 2017) (closing-argument misconduct standard; remedy by jury instruction)
State v. Hooper, 145 Idaho 139 (Idaho 2007) (instructions should match charging document as to means)
State v. Folk, 151 Idaho 327 (Idaho 2011) (fatal variance where instruction permitted conviction for acts not covered by charging statute)
State v. Windsor, 110 Idaho 410 (Idaho 1986) (variance not fatal absent surprise or prejudice)
State v. Sheahan, 139 Idaho 267 (Idaho 2003) (examples of inflammatory prosecutorial comments)
State v. Severson, 147 Idaho 694 (Idaho 2009) (inflammatory but non-fundamental prosecutorial remarks about victim)