State v. Whitaker, 152 Idaho 945

Whitaker was convicted of eleven counts of lewd conduct with a minor and three counts of sexual abuse of a child under sixteen; the charges involved two stepdaughters between 2007 and 2009.
Victim 1 was fifteen and Victim 2 was fourteen at trial; Victim 1 testified to pornography exposure and touching by Whitaker, Victim 2 testified to pornography exposure and sexual intercourse.
Whitaker’s wife testified that Whitaker viewed pornography on his computer from 2007–2009; defense objected on Rule 404(b) and notice grounds.
The district court admitted the pornography-viewing evidence, rejecting 404(b) applicability because it was not a crime.
Whitaker appealed alleging improper 404(b) admission and prosecutorial misconduct in closing; the court affirmed, holding the 404(b) evidence inadmissible for lack of notice and finding the prosecutorial conduct to be harmless.
The judgment of conviction was affirmed as harmless beyond a reasonable doubt despite both errors.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether admission of 404(b) pornography evidence without notice was proper	Whitaker—404(b) applies; improper without notice	State—evidence not subject to 404(b) or lack of notice excused	404(b) evidence inadmissible for lack of notice
Whether prosecutorial misconduct violated Whitaker’s Fifth Amendment rights	Whitaker—comments implied he chose not to testify; Griffin violation	State—comments were proper rebuttal	Prosecutorial misconduct occurred under Griffin/McMurry standards
Whether the trial errors were harmless beyond a reasonable doubt	Cumulative errors could affect outcome	Harmless beyond a reasonable doubt	Errors were harmless beyond a reasonable doubt; conviction affirmed

State v. Grist, 147 Idaho 49 (2009) (Rule 404(b) analysis; not admissible if probative value depends solely on propensity)
State v. Avila, 137 Idaho 410 (Ct.App.2002) (Rule 404(b) applicability to non-criminal acts not limited to crimes)
State v. Norton, 151 Idaho 176 (Ct.App.2011) (Evidence not implicating character not excluded by 404(b) prior acts need not be excluded if not character evidence)
State v. Sheldon, 145 Idaho 225 (2008) (Notice requirement under 404(b) mandatory; balancing for admissibility)
State v. Izatt, 96 Idaho 667 (1975) (Intrinsic vs. non-intrinsic acts under 404(b))
State v. McMurry, 143 Idaho 312 (Ct.App.2006) (Griffin-type references to defendant’s silence; multiple comments can violate Fifth Amendment)
State v. Hodges, 105 Idaho 588 (1983) (Prosecutor’s statements about uncontradicted testimony can be permissible if not implying defendant’s failure to testify)
State v. Perry, 150 Idaho 209 (2010) (Perry test for fundamental error: violation, obviousness, and prejudice to substantial rights)