Jeffrey Brian Gross appeals from his judgment of conviction and five-year sentence for felony driving under the influence (DUI). Because we conclude that the prosecutor made several improper comments during closing argument that cumulatively amounted to fundamental error depriving Gross of a *17 fair trial, we vacate Gross’s judgment of conviction and remand for a new trial.
I.
FACTS AND PROCEDURE
According to the state’s evidence at trial, on Jаnuary 25, 2005, a police officer, who was following a vehicle driven by Gross observed Gross signal a right turn, signal a left turn, signal a right turn again, and then turn left. The officer next observed Gross cross over the center line twice. The officer stopped Gross, who was accompanied in the vehicle by his girlfriend. The officer observed that Gross had glassy, bloodshot eyes and slurred speech. The officer asked Gross if he had been drinking alcohol, and Grоss indicated that he had not consumed any alcohol.
The officer asked Gross to exit the vehicle and, once Gross exited, the officer detected the odor of an alcoholic beverage, but Gross continued to deny having consumed any alcohol. However, when the officer asked Gross’s girlfriend whether Gross had been drinking, she indicated that he had. Gross again denied drinking any alcohol. The officer conducted a horizontal gaze nystagmus field sobriety test, which indicated to the officer that Gross was under the influence of alcohol. Gross refused further field sobriety tests. The officer arrested Gross. Once transported to jail, Gross refused to take a blood alcohol concentration test. The state charged Gross with felony DUI, I.C. §§ 18-8004, 18-8005(5)(7), and being a persistent violator, I.C. § 19-2514.
At trial, Gross’s girlfriend testified that certain portions of the conversation between Gross аnd the officer were not on an audio recording of the stop presented to the jury and that Gross consumed no more than one or two drinks prior to the stop. The state then played for the jury an audio recording of a telephone conversation between Gross and his mother that occurred while Gross was in jail. During the conversation, Gross admitted to his mother that he had consumed two alcoholic beverages priоr to the stop. Gross testified that the turn signal in his girlfriend’s vehicle, which Gross was driving at the time of the stop, did not operate automatically, and he therefore had to manually work it up and down. Gross also testified that he did not cross the center line and that he declined further field sobriety tests only because the officer who stopped him and another officer who subsequently arrived at the scene were “laughing and joking” at him during the gaze nystagmus test. Gross testified that the audio recordings of the stop must have been edited because the recording did not contain statements made by the officers ridiculing Gross. Gross admitted that, when he repeatedly told the officer he had not had any alcohol, “it wasn’t the truth.” When the prosecutor cross-examined Gross regarding why Gross had not been truthful with the officer, Gross testified that he had only had two beers but had heard that police are unlikely tо believe motorists who say they have had only two beers.
The jury found Gross guilty of DUI. Gross stipulated that he had a prior felony DUI conviction, and the state dismissed the persistent violator enhancement. The district court sentenced Gross to a fixed five-year term, to be served consecutive to two concurrent sentences for prior DUI convictions. Gross filed an I.C.R. 35 motion to reduce his sentence, which the district court denied. 1 Gross appeals.
II.
ANALYSIS
On appeal, Gross challenges several statements made by the prosecutor during closing argument, the reasonableness of his sentence, and the district court’s denial of his I.C.R. 35 motion for reduction of sentence. Because we conclude that the prosecutor’s statements require us to vacate Gross’s judgment of conviction, the sentencing and Rule 35 issues raised by Gross are moot and we express no opinion on those issues.
Grоss asserts that the prosecutor committed misconduct by disparaging Gross and defense counsel, vouching for the credibility *18 of the arresting officer and the prosecutor, and appealing to the passions and prejudices of the jury. Gross did not object in the district court to any of the prosecutor’s comments, and the district court did not limit the prosecutor’s comments or provide the jury with curative instructions for the statements that Gross now cites.
While our system of criminal justice is adversarial in nature, and the prosecutor is expected to be diligent and leave no stone unturned, he or she is nevertheless expected and required to be fair.
State v. Field,
When there is no contemporaneous objection, a conviction will be reversed for proseсutorial misconduct only if the conduct is sufficiently egregious so as to result in fundamental error.
Id.
Prosecutorial misconduct rises to the level of fundamental error when it is calculated to inflame the minds of jurors and arouse prejudice or passion against the defendant, or is so inflammatory that the jurors may be influenced to determine guilt on factors outside the evidence.
State v. Kuhn,
When the defendant did not object at trial, our inquiry is, thus, three-tiered.
See Field,
All of the statements that Gross takes issue with occurred during the prosecutor’s closing argument. Closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal ease.
State v. Timmons,
Gross asserts that the prosecutor committed misconduct by repeatedly calling Gross a “liar” for Gross’s false statements to the officer that he had not consumed any alcoholic beverages. Gross also complains of the prosecutor’s statement that Gross did not correct his false statements to the officer in tbe seven months between his arrest and his testimony at trial. Closing argument should not include the prosecutor’s personal opinions and beliefs about the credibility of a witness or inflammatory words employed in describing the defendant.
State v. Phillips,
Gross next asserts that the prosecutor committed misconduct by disparaging defense counsel and vouching for his own credibility. A prosecuting attorney may express an opinion in argument as to the truth or falsity of testimony or the guilt of the defendant when such opinion is based upon the evidence, but the prosecutor should exercise caution to avoid interjecting his or her personal belief and should explicitly state that the opinion is based solely on inferences from evidence presented at trial.
Phillips,
Gross asserts that the prosecutor disparaged defense counsel by implying that defense counsel participated in or facilitated Gross’s false statements. During trial, defense counsel elicited testimony from Gross that he followed defense counsel’s advice in deciding not to come forward until trial with his admission to having consumed two beers. During closing argument, the prosecutor referred to this testimony as a “rare insight into the attorney-client relationship.” In response, defense counsel stated in his closing argument that he took the prosecutor’s argument “a little personal” as an attack on counsel’s truthfulness. Defense counsel argued that he had an ethical duty to be candid and not lie. He said that “more than once” he had “raised [his] right hand in front of different tribunals” and swore to uphold and protect the constitution including when he joined the military during the Gulf War. Gross now complains of the prosecutor’s following statements in rebuttal:
So for all his Army work, everything he did in Iraq, raising his hand left and right, he came in here and didn’t give me the truth, not before I found it out on August 15th at the jail. Whether that’s lying or making an admission, you decide. But I didn’t have the truth that day. I didn’t have it.
And this is all being facilitated by Mr. Gross, not [defense counsel]. He’s doing his job. I want you to understand that. He told you he’s a liar:
.Although the use of the pronoun “he” makes it difficult to determine with certainty when the prosecutor was referring to defense counsel or Gross, the proseсutor was clearly referring to defense counsel while commenting on “Army work” and “everything he did in. Iraq.” From these references, the jury was likely to understand the prosecutor’s remarks as accusing defense counsel of lying or facilitating Gross’s lying. The comments thus disparaged defense counsel’s argument and his integrity. . Indeed, the prosecutor appears to have recognized that he had overstepped the bounds of proper closing argument with this attack on defense counsel because he attempted to immediately withdraw the attack by stating that Gross, not defense counsel, was the liar. The prosecutor committed misconduct by disparaging defense counsel with this statement.
Gross argues that the prosecutor also engaged in misconduct by suggesting *20 that the jury should trust and believe the officer and the prosecutor because they represented the state and, therefore, must be ethical. Gross cites the prosecutor’s assertions at the beginning of his closing argument that his “client” had a right to a fair trial and was seeking only the “truth.” Gross also cites the following statement: “I want you to take that motive and compare it against what he wants. He wants not guilty unequivocally. That’s all he wants. When you listen to the evidence, think about the motives of the two parties here, the truth and not guilty.” The proseсutor repeatedly used the word “truth” in reference to the goals of himself and his “client.” As discussed above, Gross placed the credibility of himself and the arresting officer at issue by testifying that the audio recording lacked statements by the officers ridiculing Gross. Thus, the prosecutor was entitled to challenge Gross’s credibility by pointing out that his motive was to obtain a jury finding of not guilty. However, rather than basing his comments on the evidence presented at trial, the prosecutor made general pleas for the jury to believe his case because he and his “client”— presumably the state — were only motivated by the truth. Therefore, the prosecutor committed misconduct in this instance.
Gross also asserts that the prosecutor improperly vouched for himself and the arresting officer in response to Gross’s testimony that the audio recording was missing part of the encountеr after the stop. During closing argument, defense counsel challenged the officer’s credibility by referring to the officer’s acknowledgement that the audio recording omitted the beginning of the contact. Defense counsel stated: “If this officer has nothing to hide, why is he cutting the audio off and on?” Gross asserts the prosecutor impermissibly vouched for his own credibility and the officer’s credibility by arguing in rebuttal:
Do you think, honestly believe I’m going to cоme up here with doctored tapes and cut things out? That’s ridiculous. I hope you understand that is ridiculous. I would lose my job. [The arresting officer] would lose his job. I would be on the front page of USA Today tomorrow.
Although the prosecutor was entitled to respond to defense counsel’s closing argument with assertions that the officer had no incentive to manipulate the audio recording and appeared believable while testifying, the prosecutor’s comments here exceeded the bounds of permissible closing argument. The prosecutor’s comments improperly vouched for the completeness of the audio recording of the stop and referred to Gross’s theory of selective recording or editing of the audio tape as “ridiculous.” With these comments, the prosecutor further pressed his improper argument that the jury should believe the story of the officer and the prosecutor simply because they were representatives of the state, rather than because the state’s evidence and theory of the case was more convincing. He referred to facts not in evidence by representing that he and the officer would lose their jobs if they presented altered evidence and asked the jurors to make their decision based upon the officer’s and the prosecutor’s self-proclaimed moral rectitude and integrity rather than addressing the evidence.
Gross next asserts that the prosecutor appealed to the passions or prejudices of the jury by asking the jury to imagine themselves as the victim. Appeals to emotion, passion or prejudice of the jury through use of inflammatory tactics are impermissible.
Phillips,
Finally, we address whether the prosecutor’s improper comments constituted fundamental error that prejudiced Gross’s case. The cumulative error doctrine refers to an accumulation of irregularities, each of which by itself might be harmless, but when aggregated, show the absence of a fair trial in contravention of the 'defendant’s right to due process.
State v. Moore,
When considered cumulatively, the prosecutor’s improper comments constituted fundamental error. Prosecutorial misconduct rises to the level of fundamental error when calculated to inflame the minds of jurors and arouse prejudice or passion against the defendant, or is so inflammatory that the jurors may be influenced to determine guilt on factors outside the evidence.
Kuhn,
We next address whether the cumulative effect of the prosecutorial misconduct was harmless beyond a reasonable doubt. The evidence of Gross’s intoxication was not overwhelming. The state charged Gross with DUI in violation of I.C. § 18-8004 and proceeded on a theory of alcohol intoxication. The state was required to prove that Gross had consumed sufficient alcohol to influence or affect his driving of the motor vehicle.
See State v. Oliver,
Thus, there was evidence that, while Gross had consumed a few alcoholic beverages, he may not have been over the legal limit for *22 DUI. The evidence supported a finding of innocence or a finding of guilt. Under these circumstances, the prosecutor’s improper statements were not harmless. We cannot say beyond a reasonable doubt that the jury would have convicted Gross absent the improper comments аnd, therefore, we must vacate Gross’s judgment of conviction.
III.
CONCLUSION
The prosecutor made numerous improper comments during his closing argument, and the comments cumulatively rose to the level of fundamental and prejudicial error. Because we must vacate Gross’s judgment of conviction, the sentencing issues raised by Gross are moot. We vacate Gross’s judgment of conviction and remand for a new trial.
Notes
. The trial was held before District Judge Renae J. Hoff. However, the sentencing and Rule 35 proceedings were conducted before District Judge Juneal C. Kerrick.