IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 50965
STATE OF IDAHO, )
) Filed: February 7, 2025
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
WAYLAND DEREK SAVAGE, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon
County. Hon. Brent L. Whiting, District Judge.
Judgment of conviction for grand theft, resisting and obstructing, and persistent
violator enhancement, affirmed.
Erik R. Lehtinen, State Appellate Public Defender; Jenny C. Swinford, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Raúl R. Labrador, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
________________________________________________
HUSKEY, Judge
Wayland Derek Savage appeals from his judgment of conviction for grand theft, resisting
and obstructing, and being a persistent violator. Savage argues the district court erred by denying
his motion for a mistrial because the prosecutor committed prosecutorial misconduct during
closing argument. The district court did not err in denying Savage’s motion for a mistrial.
Savage’s judgment of conviction is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The State charged Savage with grand theft, Idaho Code §§ 18-2403(1), -2407(1)(b); and
resisting and obstructing, I.C. § 18-705. The State also charged Savage with a persistent violator
enhancement, I.C. § 19-2514. The case proceeded to a jury trial.
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At trial, the State called the victim of the stolen car, Officer Burgoyne, and Detective Scott
as witnesses. The victim testified that during the early morning hours, he drove to work, parked
his car, and left his car unlocked with the keys inside. About two hours later, he returned to check
on his vehicle and realized that it was gone. He called the police and reported his vehicle as stolen.
Officer Burgoyne testified that he saw the report of the solen vehicle, located the vehicle while it
was being driven, and initiated a traffic stop. The driver of the stolen vehicle, Savage, exited the
vehicle and did not initially comply with Officer Burgoyne’s commands to turn around and put his
hands on his head. Officer Burgoyne eventually took Savage into custody. Detective Scott
testified next that while Savage was in custody, Savage explained to Detective Scott that he
intended to drive the car to Boise and then either contact the vehicle’s owner or report the vehicle
as stolen so it would be recovered. In his defense, Savage testified that while he took the vehicle
without permission, he was merely using it to get to Boise because he was stranded in Nampa.
Savage stated that he intended to go to a homeless shelter in Boise and would then report the
vehicle as stolen.
During his rebuttal closing argument, the prosecutor stated people who are caught in the
act lie and make up stories. After the jury reached its verdict, but before the verdict was announced,
Savage moved to dismiss the charges, arguing the prosecutor committed prosecutorial misconduct
by comparing Savage to a pedophile on the television series To Catch a Predator.1 The prosecutor
indicated he was only commenting on Savage’s credibility. The district court denied Savage’s
motion, holding that the prosecutor’s comments were not misconduct and did not warrant a
mistrial. The jury found Savage guilty on both counts. Savage admitted to the persistent violator
enhancement. Savage timely appealed from the judgment of conviction.
II.
STANDARD OF REVIEW
In criminal cases, motions for mistrial are governed by Idaho Criminal Rule 29.1. A
mistrial may be declared upon motion of the defendant, when there occurs during the trial an error
1
To Catch a Predator is an American reality television series in the television news
magazine program Dateline NBC featuring confrontations of child predators by host Chris Hansen,
partly filmed with a hidden camera, with adult men arriving at a sting house to have sex with a
minor and typically being arrested as a result. The minors are adults impersonating underage
persons (generally ages twelve or thirteen) in online chats. WIKIPEDIA,
https://en.wikipedia.org/wiki/To_Catch_a_Predator (last visited Oct. 24, 2024).
2
or legal defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial
to the defendant and deprives the defendant of a fair trial. I.C.R. 29.1(a). Our standard for
reviewing a district court’s denial of a motion for mistrial is well established:
[T]he question on appeal is not whether the trial judge reasonably exercised his
discretion in light of circumstances existing when the mistrial motion was made.
Rather, the question must be whether the event which precipitated the motion for
mistrial represented reversible error when viewed in the context of the full record.
Thus, where a motion for mistrial has been denied in a criminal case, the “abuse of
discretion” standard is a misnomer. The standard, more accurately stated, is one of
reversible error. Our focus is upon the continuing impact on the trial of the incident
that triggered the mistrial motion. The trial judge’s refusal to declare a mistrial will
be disturbed only if that incident, viewed retrospectively, constituted reversible
error.
State v. Urquhart, 105 Idaho 92, 95,
665 P.2d 1102, 1105 (Ct. App. 1983).
III.
ANALYSIS
Savage argues the district court should have granted his motion for a mistrial because the
prosecutor committed misconduct by comparing Savage’s credibility to the credibility of a
pedophile caught red-handed who then lied about it. The State argues the district court did not err
because a review of the record and applicable law supports the district court’s determination that
the prosecutor’s references did not require a mistrial.
During closing argument, Savage’s trial counsel stated:
Why would my client lie? [Savage] got up here and admitted he committed a crime.
He told you, “I did this. I took this vehicle. I took it without permission and it was
wrong and it was stupid, but I had been homeless for five days and my feet were
hurting, my knees were buckling, and I just didn’t know what else to do.”
In response, the prosecutor stated during rebuttal closing argument that:
I’m not going to accept [defense counsel’s] invitation to comment on any
witness’ credibility. That’s your job. You get to decide who you believe; however,
[defense counsel] asked a question, “Why would my client lie?” I don’t know. We
talked during jury selection about having kids, about catching kids in the act. “My
sister told me to do it. The dog did it.”
Anyone ever watch To Catch a Predator? Someone goes online and starts
chatting up a 13-year-old girl about going and having sex, smoking marijuana,
doing other drugs, shows up at the house, young girl meets him, starts talking. The
door opens, a man walks out, and says, “Hello. I’m Chris Hansen. Why don’t you
have a seat?” and then you get to see people make up some stories and I ask you
why would someone that’s been chatting up a 13-year-old girl for sex lie when
they’re caught by Chris Hansen?
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Why would [Savage] lie when he’s given the opportunity to explain exactly
why he’s in a stolen vehicle that was stolen three hours before--why he’s in a stolen
motor vehicle? That’s for you to figure out.
And, further into his argument, the prosecutor stated:
“I’d do something to get it back” sounds an awful lot like “I just came over
to this house to say hi to the 13-year-old girl,” or “I just came over to warn the
internet’s a dangerous place.” That’s what people do when they get caught in the
middle of a crime, in this case, Mr. Savage being caught driving a stolen vehicle
three hours after he stole it. Again, it’s up to you to decide who you believe. It’s
up to you to decide whether Mr. Savage is guilty of grand theft.
In denying Savage’s motion for a mistrial, the district court stated:
So the example was quite an extreme as far as the effect that that could have
on the listener. I--I don’t think that it rose to the level of misleading the jury or
tainting the jury to make this defendant--make them think that he was somehow
accused of something that terrible. I recognize the concern; however, I don’t think
it raises to the level of a mistrial, and so assuming that that really is the motion, is
the motion for mistrial or dismissal, I don’t believe it quite gets there. I do see this
concern; however, I’m going to deny--deny the motion.
Under I.C.R. 29.1 (a), a mistrial may be declared on motion of defendant when there is “an
error or legal defect in the proceedings, or conduct that is prejudicial to the defendant and deprives
the defendant of a fair trial.” Savage argues that the prosecutor committed prosecutorial
misconduct that would trigger a mistrial when, during closing arguments, the prosecutor compared
Savage to a pedophile who was caught in the act and then lied about it. Savage cites State v. Gross,
146 Idaho 15, 20,
189 P.3d 477, 482 (Ct. App. 2008) for the proposition that it is impermissible
for a prosecutor to disparage the defendant or appeal to emotion, passion, or prejudice of the jury
through use of inflammatory tactics. Savage argues the prosecutor’s comments directly disparaged
Savage because it was inherently prejudicial to compare him to a suspect involved in sexual
misconduct against children. Savage argues that because those cases possess a unique capacity to
remain in the minds of jurors, the prosecutor’s comments impermissibly inflamed the emotion,
passion, or prejudice of the jury.
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, 144 Idaho 559, 571,
165 P.3d 273, 285 (2007). Appeals to emotion, passion,
or prejudice of the jury through use of inflammatory tactics are impermissible. Gross,
146 Idaho
at 20,
189 P.3d at 482. However, in reviewing allegations of prosecutorial misconduct we must
keep in mind the realities of trial. Field,
144 Idaho at 571,
165 P.3d at 285. A fair trial is not
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necessarily a perfect trial. Id. We note that parties are given considerable latitude in closing
argument and are entitled to discuss the evidence and inferences and deductions arising therefrom.
State v. Lovelass,
133 Idaho 160, 169,
983 P.2d 233, 242 (Ct. App. 1999).
In this case, the prosecutor did not directly disparage Savage because the prosecutor did
not argue that Savage was a pedophile or charged with a sex crime. Rather, the prosecutor
compared Savage’s explanation while caught in the act to other similarly incredible explanations
of others caught in the act. For example, the prosecutor compared Savage’s explanation to those
of kids caught in the act of some minor offense. The prosecutor also compared Savage’s
explanation to that of an individual caught soliciting sexual contact with minors. Although Savage
claims the prosecutor compared him to a pedophile, in fact, the prosecutor never used that word.
The comparison the prosecutor was making was not that Savage was a pedophile but, instead, was
acting similarly to an individual caught in the act of committing a crime.
In a similar case, State v. Norton, 151 Idaho 176,
254 P.3d 77 (Ct. App. 2011), Norton was
charged with first degree arson, conspiracy to commit first degree arson, and insurance fraud.
Id.
at 181,
254 P.3d 82. She was convicted by a jury on all charges.
Id. Norton appealed, alleging,
among other claims, that the prosecutor engaged in misconduct.
Id. Specifically, Norton alleged
that the prosecutor engaged in misconduct during his opening statement and closing argument
when he argued the case was like a Jerry Springer episode,2 which was an inflammatory theme.
Id. at 188,
254 P.3d at 89. This Court held that, “[W]hile the prosecutor’s reference to Jerry
Springer in the context of the themes of greed and revenge may have been, at most, inappropriate,
it is not misconduct.”
Id.
Here, the prosecutor’s theme was comparing incredible explanations by individuals caught
in the act of committing a crime or misdeed. Contrary to Savage’s argument, the prosecutor did
not disparage Savage, explicitly or implicitly, by arguing that Savage was a pedophile or that his
conduct was like that of a sex offender. Instead, the prosecutor compared the credibility of
statements by individuals caught in the act of committing a crime. The latitude given in closing
argument includes the right to express how, from that party’s perspective, the evidence confirms
or calls into doubt the credibility of particular witnesses. State v. Priest, 128 Idaho 6, 14,
909 P.2d
2
Jerry Springer was a television host best known for hosting a controversial tabloid-style
talk show. He was noted as a pioneer in the emergence of the “trash TV” genre of broadcast
television. WIKIPEDIA, https://en.wikipedia.org/wiki/Jerry_Springer (last visited Jan. 09, 2025).
5
624, 632 (Ct. App. 1995). In this case, the prosecutor did not disparage Savage personally; he
simply challenged Savage’s explanation for stealing the car.
Next, the prosecutor did not impermissibly appeal to the emotion, passion, or prejudice of
the jury with inflammatory tactics. As discussed above, the prosecutor did not suggest that Savage
was charged with a sex crime against children or that he was a pedophile. Rather, the prosecutor
challenged Savage’s credibility as it related to his explanation of why he was driving around in the
stolen vehicle. Thus, the indirect comparison made by the prosecutor, while ill-advised, does not
rise to the level of prosecutorial misconduct.
Finally, the prosecutor was entitled to respond to defense counsel’s claim in closing
argument that Savage had no motive to lie, because it is permissible for a prosecutor to respond to
a suggestion made by defense counsel during closing argument. Gross, 146 Idaho at 20,
189 P.3d
at 482; State v. Gutierrez,
143 Idaho 289, 294-95,
141 P.3d 1158, 1163-64 (Ct. App. 2006). In
determining whether the comment was proper, the context in which the prosecutor’s statements
are made is a consideration in determining whether a mistrial is warranted. Gutierrez,
143 Idaho
at 294-95,
141 P.3d at 1163-64. Additional factors to be considered include whether the prosecutor
sought to inflame the passions of the jury or disparage opposing counsel in a manner that would
improperly prejudice the minds of the jurors.
Id. at 295,
141 P.3d at 1164. In this case, the context
of the prosecutor’s comparison was in response to defense counsel asking the jury why Savage
would lie. The prosecutor was entitled to respond to that question. In doing so, the prosecutor
referenced kids caught committing an act and adults caught committing an offense. The
prosecutor’s comments did not rise to the level of misconduct and, as a result, there was no basis
for the district court to grant a mistrial.
Further, we agree with the district court that the prosecutor’s statements did not constitute
reversible error warranting a mistrial. In reviewing the denial of a motion for a mistrial in a
criminal case, the appellate court focuses on the continuing impact on the trial of the incident that
triggered the mistrial motion. State v. Towell, 172 Idaho 648, 654,
535 P.3d 624, 630 (Ct. App.
2023). The denial of a motion for mistrial will be disturbed on appeal only if the incident giving
rise to the motion, viewed retrospectively, constituted reversible error.
Id. Error is not reversible
unless it is prejudicial. State v. Stell,
162 Idaho 827, 830,
405 P.3d 612, 615 (Ct. App. 2017). In
determining whether the error that forms the basis for a motion for a mistrial is reversible, we
apply the harmless error test. State v. Smith,
170 Idaho 800, 810,
516 P.3d 1071, 1081 (2022).
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This standard requires weighing the probative force of the record while excluding the erroneous
evidence and at the same time comparing it against the probative force of the error. Id. The State
bears the burden of demonstrating that the error is harmless beyond a reasonable doubt.
Id. The
reviewing court must take into account what effect the error had, or reasonably may have had, on
the jury in the context of the total setting and in relation to all else that happened, which necessarily
includes the evidence presented. Kotteakos v. United States,
328 U.S. 750, 764 (1946).
Regarding the probative force or prejudicial effect of the error, Savage argues that the
prosecutor’s misconduct had a continuing impact on the trial because the case came down to
whether the jury believed that Savage intended to return the vehicle or not. Savage asserts that the
final argument heard by the jury was that Savage’s credibility was as worthless as a lying sex
offender caught in the act on reality television, so the prosecutor’s misconduct infected the trial
“with [such] unfairness as to make the resulting conviction a denial of due process.” The State
argues the risk of prejudice from the prosecutor’s statements was limited by the fact that it did not
disparage Savage, did not import the prosecutor’s own belief about the witness, and did not use
inflammatory language to describe Savage. The State argues any prejudice was further limited by
the fact that the analogy was “so far afield from the actual charges against Savage, and from the
actual facts presented at trial.” Consequently, there was no possibility the jury could have
understood the analogy to suggest Savage is a sex offender.
Here, when the prosecutor’s statement is excluded, the probative force of the remaining
record supports the jury’s verdict finding Savage guilty beyond a reasonable doubt. At trial, the
State called three witnesses. First, the owner of the vehicle testified that he did not give Savage
permission to take the vehicle and reported it as stolen. Next, Officer Burgoyne testified that when
he contacted Savage, Savage apologized for taking the vehicle and stated that he knew what he did
was wrong. Finally, when Detective Scott interviewed Savage after he was in custody, Savage
provided the detective with three different versions of what his intentions were when he took the
vehicle. As noted above, the prosecutor did not commit misconduct during closing argument. But
even if his statements constituted misconduct, any probative force of those statements in the
closing argument was minimal. Thus, when weighing the probative force of the record while
excluding the prosecutor’s statements about To Catch a Predator and at the same time comparing
it against the probative force of those statements, we conclude any error was harmless. Thus, the
district court did not err in denying Savage’s motion for a mistrial.
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IV.
CONCLUSION
The district court did not err in denying Savage’s motion for a mistrial. Therefore,
Savage’s judgment of conviction for grand theft is affirmed.
Chief Judge GRATTON and Judge LORELLO, CONCUR.
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