author: BURDICK, Chief Justice.

text:
    STATE of Idaho, Plaintiff-Respondent, v. Gregg James MILLER, Defendant-Appellant.
    Docket No. 46517
    Supreme Court of Idaho, Boise, February 2019.
    Opinion Filed: March 15, 2019 Petition for Rehearing Denied June 12, 2019
    Eric D. Frederickson, State Appellant Public Defender, Boise, for appellant. Maya P. Waldron, Deputy State Public Defender argued.
    Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Kenneth K. Jorgenson, Deputy Attorney General argued.
    SUBSTITUTE OPINION THE OPINION PREVIOUSLY RELEASED MARCH 4, 2019 IS HEREBY WITHDRAWN
   BURDICK, Chief Justice.

In an appeal arising out of Kootenai County, Gregg James Miller challenged his convictions for injury to a child and felony eluding. As to the injury to a child conviction, Miller argued the jury instruction, combined with the prosecutor's closing argument, created a fatal variance with the information. Miller also argued the prosecutor committed prosecutorial misconduct during closing arguments by appealing to the emotions, passions, and prejudices of the jury, and by misstating the evidence. Miller appealed his judgment of conviction and sentence to the Court of Appeals, which affirmed. Miller timely filed a petition for review which this Court granted. We affirm the district court's judgment of conviction and clarify the fundamental error doctrine articulated in State v. Perry , 150 Idaho 209, 226, 245 P.3d 961, 978 (2010).

I. FACTUAL AND PROCEDURAL BACKGROUND

In April 2016, Miller's wife, Rochelle, called police after she and Miller had a verbal dispute that resulted in Miller driving off aggressively with the couple's minor son, S.A.M., in the car. Officer Sanchez arrived at the Millers' home and was speaking with Rochelle when Miller drove near the house. Rochelle pointed out Miller's vehicle, and Officer Sanchez walked towards his patrol car, at which time Miller quickly reversed his vehicle and drove away. Officer Sanchez began to pursue Miller and activated his siren and overhead lights. Miller drove away quickly and Officer Sanchez estimated Miller was driving 40 miles-per-hour in a 15 miles-per-hour zone. Miller drove past a number of pedestrians near the roadway. Miller eventually stopped his vehicle in a field and S.A.M. exited the vehicle and ran to a nearby residence. Miller exited the vehicle and started walking away from Officer Sanchez. Miller was then ordered to the ground at gunpoint and arrested.

Miller was charged with felony eluding a police officer pursuant to Idaho Code section 49-1404(2) and misdemeanor injury to a child pursuant to Idaho Code section 18-1501(2). Miller's trial counsel did not object to the proposed jury instructions. A jury convicted Miller on both counts, and he was sentenced to a term of four years, one year fixed, for the eluding charge, and was given credit for time served for the injury to a child charge. Miller appealed to the Court of Appeals, alleging two instances of fundamental error. State v. Miller , No. 45028, 2018 WL 3413827, at *1 (Idaho Ct. App. July 13, 2018). First, he argued there was a fatal variance between the information and jury instructions, and second, he argued the prosecutor committed misconduct. Id. The Court of Appeals affirmed the conviction and sentence. Id. This Court granted Miller's petition for review.

II. ISSUES ON APPEAL

1. Whether the jury instructions, when combined with the prosecutor's statement in closing argument, constituted a fatal variance from the information.
2. Whether the prosecutor committed prosecutorial misconduct during closing arguments.

III. STANDARD OF REVIEW

"In cases that come before this Court on a petition for review of a Court of Appeals decision, this Court gives serious consideration to the views of the Court of Appeals, but directly reviews the decision of the lower court." State v. Schall , 157 Idaho 488, 491, 337 P.3d 647, 650 (2014) (quoting State v. Oliver , 144 Idaho 722, 724, 170 P.3d 387, 389 (2007) ). "Where a defendant alleges that a constitutional error occurred at trial, we must first determine whether a contemporaneous objection was made." State v. Bernal , 164 Idaho 190, 193, 427 P.3d 1, 4 (2018) (quoting State v. Hall , 163 Idaho 744, 766, 419 P.3d 1042, 1064 (2018) ). "If the alleged error was not followed by a contemporaneous objection, it must be reviewed under the fundamental error doctrine." Id. (citing State v. Perry , 150 Idaho 209, 228, 245 P.3d 961, 980 (2010) ).

We have previously stated that in order to obtain relief under the fundamental error doctrine:

(1) the defendant must demonstrate that one or more of the defendant's unwaived constitutional rights were violated; (2) the error must be clear or obvious, without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision; and (3) the defendant must demonstrate that the error affected the defendant's substantial rights, meaning (in most instances) that it must have affected the outcome of the trial proceedings.

Perry , 150 Idaho at 226, 245 P.3d at 978. However, based on the application of Perry in the years that have followed the decision, as well as oral arguments made by appellate counsel in this case, we wish to take this opportunity to clarify Perry .

First, we address the second prong of Perry that states "the error must be clear or obvious, without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision." Id. We reemphasize that in order to satisfy this prong of Perry a defendant bears the burden of showing clear error in the record. This means the record must contain evidence of the error and the record must also contain evidence as to whether or not trial counsel made a tactical decision in failing to object. If the record does not contain evidence regarding whether counsel's decision was strategic, the claim is factual in nature and thus more appropriately addressed via a petition for post-conviction relief. As the Court of Appeals observed, when stating the second prong of Perry is satisfied, appellant's counsel often contends "it is clear from the record that the failure to object was not tactical" and that "failing to object could not have benefitted the defendant." Miller , No. 45028, 2018 WL 3413827, at *4 n. 2. However, neither of those statements demonstrates that it is clear that the record contains evidence that the failure to object was a tactical decision. Thus, we clarify that whether trial counsel made a tactical decision in failing to object is a claim that must be supported by evidence in the record. Appellate counsel's opinion that the decision could not have been tactical does not satisfy the second prong of Perry.

Next, we clarify the third prong of Perry that states "the defendant must demonstrate that the error affected the defendant's substantial rights, meaning (in most instances) that it must have affected the outcome of the trial proceedings." Perry , 150 Idaho at 226, 245 P.3d at 978. In dicta that followed the holding in Perry , this Court articulated that, as to the third prong, the defendant bears the burden of showing there is a "reasonable possibility" that the error affected the outcome of the trial. Id. In the years following Perry , we have cited both the "error affected the outcome" and the "reasonable possibility" language when discussing the third prong of Perry . See e.g. , Bernal , 164 Idaho at 193, 427 P.3d at 4. However, the "reasonable possibility" language has resulted in confusion among litigants as to what standard applies, with some parties arguing the standard should be the same "reasonable probability" standard applicable in ineffective assistance of counsel cases. See Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Marr v. State , 163 Idaho 33, 37, 408 P.3d 31, 35 (2017). We take this opportunity to clarify that the third prong of Perry requires that the defendant demonstrate that the clear error in the record-i.e., the error identified in the first and second prongs-actually affected the outcome of the trial proceedings. Whether the error affected the trial proceedings must be clear from the appellate record. In so requiring, we note that the words "reasonable possibility" are no longer appropriate or descriptive of the third prong of Perry.

IV. ANALYSIS

A. Whether the jury instruction, in conjunction with a statement in the prosecutor's closing argument, constituted a fatal variance from the information.

"Jury instructions should match the allegations in the charging document as to the means by which a defendant is alleged to have committed the charged crime." State v. Bernal , 164 Idaho 190, 194, 427 P.3d 1, 5 (2018) (citing State v. Hooper , 145 Idaho 139, 146-47, 176 P.3d 911, 918-19 (2007) ). "Failure to do so creates a variance." Id. (citing State v. Folk , 151 Idaho 327, 342, 256 P.3d 735, 750 (2011) ). "A variance becomes fatal when it violates due process." Id.

The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.

Id. (quoting Berger v. United States , 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) ).

As this Court recently stated, "[a]pplying this standard presents a two-step process." Id. (citing State v. Gas , 161 Idaho 588, 592, 388 P.3d 912, 916 (Ct. App. 2016) ). "First, the appellate court determines whether there was a variance between the information used to charge the crime and the instruction presented to the jury." Id. (citation omitted). "Second, if a variance does exist, then the court examines whether it rises to the level of prejudicial error requiring reversal of the conviction, i.e., whether it is fatal." Id. (citation omitted). Even if there is a variance between the charging instrument and the jury instruction, reversal is only necessary when the variance "deprives the defendant of the right to fair notice or leaves him or her open to the risk of double jeopardy." Id. As to notice, this Court must determine whether the defendant was misled or surprised "in the preparation or presentation of his or her defense." Id. (citing State v. Windsor , 110 Idaho 410, 418, 716 P.2d 1182, 1190 (1985) ).

Indeed, this Court has repeatedly held that even if there is a variance, it is not fatal if the defendant had notice of it or was not misled or surprised in preparation of his defense. See State v. Johnson , 145 Idaho 970, 977, 188 P.3d 912, 919 (2008) (holding a variance was not fatal because the defendant was "not misled or embarrassed in the preparation of her defense."); Windsor , 110 Idaho at 417-18, 716 P.2d at 1189-90 (no fatal variance when there was no evidence the defendant was either misled or surprised at trial); Bernal , 164 Idaho at 194, 427 P.3d at 6 (holding a variance was not fatal when the defendant had notice of it and put on a defense against it).

However, this Court found a fatal variance to exist "when a jury instruction permitted a jury to find the defendant guilty of crimes not charged in the information." Bernal , 164 Idaho at 194, 427 P.3d at 5 (citing Folk , 151 Idaho at 342, 256 P.3d at 750 ). In Folk , a defendant was charged with lewd conduct "by oral-to-genital contact" and the original jury instruction reflected this language. 151 Idaho at 339, 256 P.3d at 747. However, when the jury asked the court whether it could convict for lewd and lascivious conduct other than oral-genital contact, the court responded that lewd and lascivious conduct was the statutory name for a category of various sexual touching crimes. Id. at 340, 256 P.3d at 748. The court then defined lewd and lascivious conduct to contain various instances of inappropriate touching and used the phrase "etc" at the end. Id. In determining a fatal variance existed, this Court stated "the court's inclusion of 'etc.' following the list of prohibited conduct reinforced that the jury could find Defendant guilty of conduct other than oral-genital contact." Id. Because certain types of touching were not included in the lewd and lascivious statute, the use of "etc" allowed the jury to find the defendant guilty of conduct that did not constitute lewd conduct, the crime with which he was charged. Id. at 342, 256 P.3d at 750.

In this case, Miller argues there was a fatal variance between the information and Jury Instruction No. 21 that, when combined with the prosecutor's closing argument, amounted to fundamental error. As to the injury to a child charge, the information stated Miller committed the offense when Miller "willfully caused or permitted the child to be placed in a situation that its person or health may be endangered ... by driving an automobile, with the child as a passenger, in an aggressive or reckless manner and while eluding law enforcement ...." Jury Instruction No. 21 stated:

In order for the Defendant to be guilty of Injury to a Child, the state must prove each of the following:
1. On or about April 16, 2016;
2. In the State of Idaho;
3. The Defendant Gregg James Miller;
4. Had the care or custody of S.A.M.;
5. Who was a child under 18 years of age, and;
6. The Defendant wilfully [sic] caused or permitted the child to be placed in a situation that may have endangered the child's person or health. If any of the above has not been proven beyond a reasonable doubt, you must find the Defendant not guilty. If each of the above has been proven beyond a reasonable doubt, then you must find the Defendant guilty.

Defense counsel did not object to these instructions.

Miller contends that the information alleged Miller committed injury to a child by "driving an automobile , with a child as a passenger, in an aggressive or reckless manner while eluding law enforcement" whereas Jury Instruction No. 21 did not mention an automobile and instead stated Miller was guilty of the crime if he willfully caused the child to be "placed in a situation that may have endangered the child's person ...." Miller states this variance was fatal when combined with the prosecutor's statement at closing that said:

Not only in his driving here did he endanger this child. When he stopped in that field and let that child run out of there knowing that the police were right there, right there behind him, you remember Officer Sanchez pulls his gun, anything could have happened. So this was definitely a dangerous situation that he placed his child right smack in the middle of.

Miller contends that the prosecutor's closing statement, combined with the jury instruction, created a new "means of committing" the injury to a child offense whereby the jury could convict Miller for creating a situation in which the officer drew his gun in S.A.M.'s presence. For the reasons discussed below, there was not a fatal variance.

In Bernal , this Court stated variances are not fatal when the defendant is on notice of the variant theory or if the defendant was not misled or surprised in preparation of his defense. 164 Idaho at 195, 427 P.3d at 6. This includes when a defendant responds to witness testimony about the alleged variance. Id. Here, Miller was on notice that the State may address S.A.M. running off after the car stopped. There is nothing in the information that indicated the State's arguments about the injury to a child charge would be limited to events that occurred while the automobile was still moving. Instead, the discussion of S.A.M. running from the car after it stopped in the field is directly related to Miller's act that "willfully caused or permitted the child to be placed in a situation that its person or health may be endangered ... by driving an automobile, with the child as a passenger, in an aggressive or reckless manner and while eluding law enforcement ...." This is unlike Folk , where the variance permitted the defendant to be convicted based on acts that were not covered by the charging statute, because here, nothing was alleged that would have allowed Miller to be convicted based on acts outside the injury to a child statute. Additionally, the jury was instructed that the attorneys' arguments and statements were not evidence the jury could consider, and this Court presumes the jury followed the court's jury instructions. Weinstein v. Prudential Prop. & Cas. Ins. Co. , 149 Idaho 299, 335, 233 P.3d 1221, 1257 (2010).

Moreover, Miller's counsel "responded to witness testimony" about S.A.M. running from the car after it stopped in the field. See Bernal , 164 Idaho at 195, 427 P.3d at 6. Though Miller contends his defense counsel did not explore the allegation in the prosecutor's closing statement, the record shows that trial counsel rebutted the theory in closing. Miller's counsel, in fact, put on a defense about the situation that occurred after Miller stopped the car during closing argument, stating:

[T]his whole thing took like a minute if you watch the video. He knows he's going to be at his friend's house, you know, in like the next 20 seconds. Does he prefer to, you know, yank over right there, is that somehow safer for his kid if he immediately stops? Or if he gets there, give the kid a chance to run off. The reality is he did pretty much all of this not for selfish reasons, but he wanted to make sure his kid didn't wind up having to go with his mom who was incredibly mad at him and because he didn't want to have his kid watching him possibly being arrested and being accused of who knows what it was he was being accused of. So it's a little -- kind of goes against the whole point of all this to say what this was about was permitting his child willfully to be placed in a dangerous situation.

This is similar to Bernal , where this Court held a variance was not fatal because the defendant had notice of, and responded to, witness testimony relating to the alleged variant theory. Id. Therefore, there was not a fatal variance because Miller was not misled or surprised "in the preparation or presentation of his ... defense." Id. at 194, 427 P.3d at 5 (citing Windsor , 110 Idaho at 418, 716 P.2d at 1190 ). Because the variance, if any, was not fatal, Miller cannot establish that his due process rights were violated so as to satisfy the first prong of Perry -the violation of an unwaived constitutional right. 150 Idaho at 228, 245 P.3d at 980. Because Miller has failed to satisfy the first prong of Perry , it obviates the need to address the remaining two prongs, as Miller is unable to show fundamental error.

B. Whether the prosecutor committed prosecutorial misconduct during closing argument.

Miller argues the prosecutor committed misconduct during closing argument that amounted to fundamental error by appealing to the emotions, passions, and prejudices of the jury, and by misstating the evidence. Miller takes issue with three statements by the prosecutor, each of which will be discussed in turn below.

"Where prosecutorial misconduct was not objected to during trial, this Court may only reverse when the misconduct constitutes fundamental error." State v. Alwin , 164 Idaho 160, 169, 426 P.3d 1260, 1269 (2018) (quoting State v. Lankford , 162 Idaho 477, 494, 399 P.3d 804, 821 (2017) ). The first step in a prosecutorial misconduct analysis "is to determine whether the alleged conduct actually rises to the level of prosecutorial misconduct." Lankford , 162 Idaho at 494, 399 P.3d at 821. This Court has said, "[p]rosecutorial misconduct occurs when the State 'attempts to secure a verdict on any factor other than the law as set forth in the jury instructions and the evidence admitted at trial, including reasonable inferences that may be drawn from that evidence.' " Bernal , 164 Idaho at 196, 427 P.3d at 7 (quoting State v. Abdullah , 158 Idaho 386, 440, 348 P.3d 1, 55 (2015) ). "[T]he prosecutor has a duty to avoid misrepresentation of the facts and unnecessarily inflammatory tactics." Id. (quoting State v. Moses , 156 Idaho 855, 871, 332 P.3d 767, 783 (2014) ).

However, "[t]here is considerable latitude in closing argument, and both sides are entitled to discuss fully, from their respective standpoints, the evidence and the inferences that should be drawn from it." Alwin , 164 Idaho at 169, 426 P.3d at 1269 (citation and quotation marks omitted). "Whether comments during closing arguments rise to the level of fundamental error is a question that must be analyzed in the context of the trial as a whole." Id. (quoting Lankford , 162 Idaho at 497, 399 P.3d at 824 ). "Unobjected-to prosecutorial misconduct that arises in closing argument must be so egregious that the prosecutor's comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Id. (quoting Lankford , 162 Idaho at 497, 399 P.3d at 824 ). This Court has said misconduct can be remedied when the district court gives an instruction "informing the jury that the attorneys' comments are not evidence." Id. Moreover, "in reviewing allegations of prosecutorial misconduct the Court must keep in mind the realities of trial. A fair trial is not necessarily a perfect trial." Lankford , 162 Idaho at 494, 399 P.3d at 821 (quoting State v. Ellington , 151 Idaho 53, 62, 253 P.3d 727, 736 (2011) ).

Inflammatory comments are comments which are "calculated to inflame the minds of jurors and arouse passion or prejudice against the defendant, or [are] so inflammatory that the jurors may be influenced to determine guilt on factors outside the evidence." State v. Sheahan , 139 Idaho 267, 280, 77 P.3d 956, 969 (2003) (quoting State v. Babb , 125 Idaho 934, 942, 877 P.2d 905, 913 (1994) ). For example, this Court held that a "prosecutor's comments during closing argument that defense counsel had misled and lied to the jury" were misconduct because "the comments were intended to inflame the minds of jurors and arouse passion or prejudice against the defendant based upon asserted misconduct of defense counsel." Sheahan , 139 Idaho at 281, 77 P.3d at 970. However, in that case, the comments did not rise to fundamental error. Id. Similarly, this Court has held that a "prosecutor's statements that [the victim] was speaking from her grave were somewhat inflammatory because they were likely designed to appeal to the sympathies and passions of the jury." State v. Severson , 147 Idaho 694, 719, 215 P.3d 414, 439 (2009). There, the prosecutor stated, "[the victim] still speaks to us today. She is still telling us what happened that night and why she is dead. ... [She] tells us, she speaks to us from her grave as to who killed her and why she died." Id. However, though inflammatory, the comments did not rise to fundamental error because they did not result in an unfair trial or deprive the defendant of due process. Id.

1. The prosecutor's statements about the bicyclist.

Miller first challenges the prosecutor's statement in closing argument which told the jury "if [the bicyclist] had just taken a few more strides on his bike, he might not have been here for you today to testify for you." Miller contends this statement was inflammatory and sought to appeal to the passions and prejudices of the jury by suggesting Miller almost killed the bicyclist. Miller also argues the statement misstated the evidence because the bicyclist was approaching a stop sign and would have been legally required to yield to cross-traffic. Miller's argument is unavailing.

The prosecutor's statement was a reasonable inference from the evidence and within the considerable latitude afforded to prosecutors during closing argument. See Alwin , 164 Idaho at 169, 426 P.3d at 1269. The prosecutor's statement was supported by the evidence. The bicyclist testified at trial that he was riding up a street and "approaching a stop sign" when his friend "screamed at [him]." He then stated he "saw the car fly by" and estimated the car was the distance from him to the corner of the desk he was testifying from. When asked, "[w]hat was your reaction when the car flew by at that distance?" the bicyclist responded he was "shook up," "petrified," "nervous" and "really stiff." He then testified he watched the car cross the highway "without stopping, no brake lights, no nothing." Based on this testimony, the prosecutor's statements about the bicyclist were based on the evidence and were not a misstatement of the evidence. Compared with the statements in Sheahan and Severson , which attacked defense counsel's credibility and stated the victim was speaking from the grave, here, the prosecutor's statements highlighted the danger to the bicyclist when Miller sped past him, a conclusion supported by witness testimony.

Additionally, even if the prosecutor committed misconduct, Miller cannot show fundamental error because the error is not clear or obvious from the record. See Perry , 150 Idaho at 226, 245 P.3d at 979. The jury was instructed that the attorneys' arguments and statements were not evidence the jury could consider, and this Court presumes the jury followed the court's jury instructions. Weinstein , 149 Idaho at 335, 233 P.3d at 1257. Nor is it clear from the record that the failure to object was not a tactical decision. See Perry , 150 Idaho at 228, 245 P.3d at 980. Miller's counsel rebutted the prosecutor's statements in closing argument, stating:

So the officer is here and [Miller]'s there and [Miller] passes those two [bicyclists] at that point. Now, the boys presumably know better than to ride into a road without stopping and looking both ways, so despite what the prosecution is telling you, assuming that [Miller] is going somewhere between 30 and 40 miles an hour, he's probably not about to suddenly spin out and hit a bunch of people that are standing on the sidewalk, and I don't think there's any particular reason to hold against him the fact that people tend to be outside in the middle of the day.

Accordingly, the prosecutor did not commit misconduct, but even if they did, Miller has not shown fundamental error.

2. The prosecutor's statement about the proximity to pedestrians.

Miller next alleges the prosecutor committed misconduct by stating during closing argument:

Do you recall the testimony yesterday, I believe that Officer Sanchez estimated about the car came within about 5 feet of this group of elderly persons that were standing outside the church on the roadway. About 10 feet from a group of children when he turned up on to 3rd Street from Jefferson. Those also were near hits.

Miller contends that this statement was inflammatory by appealing to the emotions and prejudices of the jury. Miller also argues this was a misstatement of evidence because Officer Sanchez testified that the group of elderly people was 3 to 5 feet from the roadway, not on the roadway. Miller also contends that Officer Sanchez was testifying as to where the people were when the Officer passed them, but did not see where they were when Miller passed them. Miller argues that there was no evidence he drove off the road, and thus there were not "near hits" as the prosecutor alleged.

Here again, the prosecutor's statement was a reasonable inference from the evidence and within the considerable latitude afforded to prosecutors during closing argument. See Alwin , 164 Idaho at 169, 426 P.3d at 1269. Officer Sanchez testified that there was a group of elderly persons outside a church that were "3 to 5 feet from the roadway also watching as we went by. I know some of them were particularly close to the road." Officer Sanchez also testified that he saw a "group of kids" within "3 to 5 feet from the edge of the roadway." Officer Sanchez testified he could not see where the children were when Miller was approaching them, but they were 3 to 5 feet from the roadway when the Officer went by and they were watching the cars pass. Officer Sanchez also stated he saw a "group of kids on tricycles or Big Wheels playing right in the middle of the road" that "were within 10 feet from the southernmost curb line of Jefferson Road." Officer Sanchez also testified that Miller's driving occasionally kicked up dust, which the officer took to mean that Miller was driving too close to the edge of the road. Based on the testimony, the prosecutor's statement was a reasonable inference of the evidence. While Officer Sanchez stated the elderly were near, rather than on, the road, he also testified that "some of them were particularly close to the road" and that Miller was driving close enough to the road to kick up dust. Accordingly, it was not a mischaracterization of evidence to call Miller's coming within 5 feet of pedestrians as "near hits."

And, here again, even if the prosecutor committed misconduct, Miller cannot show fundamental error. See Perry , 150 Idaho at 228, 245 P.3d at 980. As discussed previously regarding the bicyclist, Miller's counsel rebutted the prosecutor's statements regarding the sidewalk pedestrians in closing argument. Therefore, it is not clear from the record that the failure to object was not a tactical decision. See id . Accordingly, the prosecutor did not commit misconduct, but even if they did, Miller has not shown fundamental error.

3. The prosecutor's statements about S.A.M.'s presence when Officer Sanchez apprehended Miller at gun point.

Lastly, Miller contends the prosecutor committed misconduct during closing argument when it stated:

Not only in his driving here did he endanger this child. When he stopped in that field and let that child run out of there knowing that the police were right there, right there behind him, you remember Officer Sanchez pulls his gun, anything could have happened. So this was definitely a dangerous situation that he placed his child right smack in the middle of.

This is the same statement challenged above in the fatal variance analysis. Miller contends it was prosecutorial misconduct because the evidence shows S.A.M. had already run off by the time Officer Sanchez got out of his car and drew his gun. Officer Sanchez testified that when he approached Miller's car that had stopped in the field Officer Sanchez "saw the young child run off." Officer Sanchez also said, "first the child ran out the passenger side, and as I'm still pulling up the driver gets out slowly ...." The body-camera footage does not show the child in the frame of the camera during Miller's arrest.

Officer Sanchez's testimony and the body camera footage show that S.A.M. was not present at the time the gun was drawn and Miller was arrested. However, Officer Sanchez's testimony that he "saw the young child run off" indicates that S.A.M. was still at the scene when Officer Sanchez arrived in his patrol car, but that S.A.M. ran off before Officer Sanchez exited the car and drew his gun. Thus, the statement by the prosecutor that Miller "stopped in that field and let that child run out of there knowing that the police were right there, right there behind him ...." is supported by the evidence. However, the prosecutor's next statement "you remember Officer Sanchez pulls his gun, anything could have happened" is not supported by the testimony or body-camera footage because S.A.M. was gone when the gun was drawn. Therefore, that portion of the prosecutor's statement is a mischaracterization of the evidence and prosecutorial misconduct. See Bernal , 164 Idaho at 197, 427 P.3d at 7 ("[P]rosecutorial misconduct occurs when the State 'attempts to secure a verdict on any factor other than the law as set forth in the jury instructions and the evidence admitted at trial, including reasonable inferences that may be drawn from that evidence.' ") (citation omitted).

Because the prosecutor's statement constituted misconduct, we "must determine whether the misconduct rose to the level of fundamental error." Alwin , 164 Idaho at 172, 426 P.3d at 1272 (citing Perry , 150 Idaho at 226, 245 P.3d at 978 ). "Prosecutorial misconduct during closing arguments will constitute fundamental error only if the comments were so egregious or inflammatory that any consequent prejudice could not have been remedied by a ruling from the trial court informing the jury that the comments should be disregarded." Id. (quoting Lankford , 162 Idaho at 501, 399 P.3d at 828 ). This Court has previously held that prosecutorial misconduct does not rise to the level of fundamental error when an instruction is given to the jury indicating that statements made by the attorneys during closing argument are not evidence. See id. at 173, 426 P.3d at 1273 ("[T]he misconduct does not amount to fundamental error because a jury instruction was provided that remedied any prejudice."); Lankford , 162 Idaho at 501, 399 P.3d at 828 ("[E]ven if these statements were prosecutorial misconduct, they did not rise to the level of fundamental error. ... the court explicitly informed the jury that comments during closing statements were not to be considered as evidence.").

In this case, the jury was instructed that what the lawyers say in closing arguments is not evidence. As noted, this Court presumes the jury followed the court's jury instructions. Weinstein , 149 Idaho at 335, 233 P.3d at 1257. Additionally, the statement by the prosecutor was not "so egregious and inflammatory that the jury instruction would not remedy any consequential prejudice."

Alwin , 164 Idaho at 173, 426 P.3d at 1273. This is especially true given that Miller's counsel rebutted the prosecutor's statement in his closing argument. Moreover, because Miller's counsel rebutted the statement, Miller has not shown that the failure to object was not a tactical decision by trial counsel. Perry , 150 Idaho at 226, 245 P.3d at 978. Accordingly, the misconduct does not rise to fundamental error.

V. CONCLUSION

In sum, there was no fatal variance between the information and the jury instruction. Next, the prosecutor's statements about the bicyclist and the pedestrians did not amount to prosecutorial misconduct. Lastly, while the prosecutor's statement about S.A.M.'s presence at the arrest was prosecutorial misconduct, it did not amount to fundamental error. Therefore, Miller's conviction and sentence are affirmed.

Justices BRODY, BEVAN, STEGNER and MOELLER concur.

      We note that nothing in our discussion of Perry affects the analysis applicable when an error occurred at trial that constituted a structural defect. See Perry , 150 Idaho at 222, 245 P.3d at 974.


source: Caselaw Access Project

author: MOELLER, Justice.

license: Public Domain

text:
    STATE of Idaho, Plaintiff-Respondent, v. Darryl Joe ALBERTSON, Defendant-Appellant.
    Docket No. 45607
    Supreme Court of Idaho, Boise, February 2019 Term.
    Opinion filed: March 28, 2019 Petition for Rehearing Denied June 12, 2019
    Eric Don Fredericksen, State Appellate Public Defender, Boise, for Appellant. Brian R. Dickson argued.
    Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Jeffrey D. Nye argued.
   MOELLER, Justice.

Darryl Joe Albertson appeals from his judgment of conviction for possession of a controlled substance. In August 2016, a police officer approached Albertson's front door and observed through a window that he was smoking methamphetamine. Because he had a "no trespassing" sign posted near the opening to his property, Albertson argues that the officer's conduct constituted an unreasonable search under the Fourth Amendment to the United States Constitution and Article I, section 17 of the Idaho Constitution. Consequently, he asks this Court to reverse the district court's decision denying his motion to suppress the evidence. The State argues that the sign in question was insufficient to revoke the implied license for uninvited visitors to approach his home. For the reasons stated below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In early August 2016, the Cassia County Sheriff's Office received information from a local store that Albertson had purchased an inordinate amount of sulfur (two large bags). The purchase caused concern for law enforcement because sulfur can be used to produce bombs. As a result, Captain Dan Kindig, who had known Albertson for some time, volunteered to speak with him about the purchase. Captain Kindig went to Albertson's home shortly after receiving the information, but Albertson was not there. Consequently, Captain Kindig returned on August 10, 2016, at which point he walked up to the porch and, as he approached Albertson's front door, saw Albertson through a window to the left. Captain Kindig testified that he observed Albertson sitting at a small table smoking an unknown substance from what appeared to be a "meth pipe."

Captain Kindig knocked on the door and Albertson answered. After inquiring about the sulfur, Captain Kindig informed him that the bigger problem was the meth pipe. Albertson reportedly responded: "It's not a problem because I'm on my own property and it's not against the law to smoke meth in my own house." He allegedly stated that his property was exiled from Minidoka County and existed in another state where methamphetamine was legal. After some further discourse, Captain Kindig obtained the pipe and arrested Albertson. Because the pipe tested positive for methamphetamine, Albertson was charged with possession of a controlled substance and possession of drug paraphernalia.

On November 29, 2016, Albertson filed a motion to suppress all the evidence on the grounds that his property was posted with a no trespassing sign and the State lacked probable cause to enter the premises without permission. The State conceded that a no trespassing sign had been posted on a power pole, but argued that the sign was insufficient to revoke the implied license because it was not well-placed and there were a number of obstacles to seeing it clearly. Captain Kindig testified that he did not notice the sign and that it was badly faded. Photographs of the property and the sign were admitted into evidence at the hearing. These photos were taken after Albertson was arrested. Captain Kindig testified that "honestly, I don't remember the trees being trimmed, but maybe they were. I don't know. But I can see they're all trimmed back now."

After the evidentiary hearing, the district court issued a written decision finding that "[t]here is no evidence Captain Kindig noticed the sign; it was not the most prominent or noticeable sign." After reviewing relevant case law, the district court concluded that "[t]he sign here is less prominent and is insufficient to revoke the implied license [to enter the curtilage and approach the front door]". Consequently, the district court concluded that Captain Kindig's viewing of Albertson smoking what appeared to be methamphetamine through the window "did not constitute a search under the Fourth Amendment." Accordingly, it denied Albertson's motion to suppress.

On October 16, 2017, pursuant to a binding plea agreement, Albertson entered a conditional plea of guilty to possession of a controlled substance. The agreement required that Albertson receive a suspended sentence of no more than five years, with the first two years fixed, and be placed on probation for two years. Pursuant to the plea agreement, Albertson reserved the right to appeal from the district court's denial of his motion to suppress. That same day, a judgment of conviction was entered against him. Albertson timely appealed.

II. STANDARD OF REVIEW

This Court conducts a bifurcated review when it considers a motion to suppress. State v. Watts , 142 Idaho 230, 232, 127 P.3d 133, 135 (2005). This means that when a ruling on a suppression motion is challenged on appeal, "the Court accepts the trial court's findings of fact that are supported by substantial evidence, but freely reviews the application of constitutional principles to the facts as found." State v. Page , 140 Idaho 841, 843, 103 P.3d 454, 456 (2004).

III. ANALYSIS

Albertson asserts that, by placing a single no trespassing sign on a power pole near the entrance to his driveway, he revoked the implied license for the public, including police officers, to approach his home. Thus, he argues that the officer's observations while on his front porch constituted an impermissible search under the Fourth Amendment to the United States Constitution and Article I, section 17 of the Idaho Constitution. The State does not challenge the district court's conclusion that the officer entered the curtilage of Albertson's property, and it does not assert that an exception to the warrant requirement applies in this case. Rather, the State argues that, pursuant to the implied license and open view doctrines, no search occurred. Therefore, the State asserts that the officer did not violate Albertson's constitutional rights.

"Like the Fourth Amendment, the purpose of Art. I, § 17 is to protect Idaho citizens' reasonable expectation of privacy against arbitrary governmental intrusion. To this end, warrantless searches are presumed to be unreasonable unless the search can be justified under one of the exceptions to the warrant requirement." State v. Christensen , 131 Idaho 143, 146, 953 P.2d 583, 586 (1998) (internal citation omitted). While the home, including its curtilage, is "first among equals" when it comes to constitutional protection from unreasonable searches and seizures, it is well established that a police officer may approach a home without a warrant and knock, as any private citizen may do. Florida v. Jardines , 569 U.S. 1, 6, 8, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). This notion has been termed the "implied invitation," Christensen , 131 Idaho at 147, 953 P.2d at 587, or "implied license" doctrine, Jardines , 569 U.S. at 10, 133 S.Ct. 1409. Regarding this doctrine, we have stated:

Although citizens have a reasonable expectation of privacy in the areas immediately surrounding their homes, not all areas of the curtilage are equal in terms of privacy.
[T]he presence of a police officer within the curtilage does not, ipso facto , result in an unconstitutional intrusion. There is an implied invitation for the public to use access routes to the house, such as parking areas, driveways, sidewalks, or pathways to the entry, and there can be no reasonable expectation of privacy as to observations which can be made from such areas. Like other citizens, police with legitimate business are entitled to enter areas of the curtilage that are impliedly open to public use.

Christensen , 131 Idaho at 147, 953 P.2d at 587 (quoting State v. Clark , 124 Idaho 308, 313, 859 P.2d 344, 349 (Ct. App. 1993) ). However, "[t]he ability of police to move within the curtilage ... is not unlimited. 'Police officers without a warrant are permitted the same intrusion and the same level of observation as one would expect from a reasonably respectful citizen.' " Id. (quoting Clark , 124 Idaho at 313, 859 P.2d at 349 ).

We have also held that the implied license to enter the access routes to a home is revocable. It is deemed to be revoked where a reasonably respectful citizen would recognize that he or she is not welcome to approach the home. Id. Thus, where an officer's entry into the curtilage exceeds what would be expected of a reasonably respectful citizen, a search has occurred. However, where the officer's conduct in entering the curtilage conforms to that of a reasonably respectful citizen, his entry does not constitute a search for purposes of the Fourth Amendment and the Idaho Constitution. Id .

Further, under the open view doctrine, "a police officer's observations made from a location open to the public do not constitute a search. This is because one cannot have a reasonable expectation of privacy in what is knowingly exposed to public view." Christensen , 131 Idaho at 146, 953 P.2d at 586 (citing Katz v. United States , 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). Thus, if Albertson failed to revoke the implied license, neither the officer's entry onto Albertson's curtilage nor his subsequent observation of Albertson smoking methamphetamine through his window constituted a search under the Fourth Amendment or the Idaho Constitution.

With this understanding of the applicable law, we address Albertson's arguments in turn.

A. We need not decide whether a single no trespassing sign is sufficient to revoke the implied license.

Albertson argues that by adopting Idaho Code section 18-7008, which criminalizes trespassing, the Idaho legislature codified the principle that a single sign is adequate to revoke the implied license. In addition, he asks this Court to adopt the reasoning from a recent dissent in the Tenth Circuit Court of Appeals and hold that a "plain, simple, and appropriately" displayed no trespassing sign is sufficient to revoke the implied license. See United States v. Carloss , 818 F.3d 988, 1014 (10th Cir. 2016) (Gorsuch, J., dissenting).

We reject Albertson's argument regarding the applicability of Idaho Code section 18-7008, as it was written in 2016. See I.C. § 18-7008 (2014), repealed by 2018 Idaho Sess. Laws, ch. 350, § 6. Even assuming, arguendo , that the single sign provisions of 18-7008(A)(9)(c) and (d) were applicable, they are of no consequence to our Fourth Amendment analysis. As the Supreme Court of the United States has explained, there is no constitutional nexus between criminal or civil trespass laws and Fourth Amendment jurisprudence:

[I]t does not follow that the right to exclude conferred by trespass law embodies a privacy interest also protected by the Fourth Amendment. To the contrary, the common law of trespass furthers a range of interests that have nothing to do with privacy and that would not be served by applying the strictures of trespass law to public officers.

Oliver v. United States , 466 U.S. 170, 184 n.15, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). In other words, trespass laws are not rooted in the same constitutional soil from whence the reasonable expectation of privacy standard has grown. See Kyllo v. United States , 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). Therefore, Idaho's trespass laws are not controlling in this case, which concerns the application of the Fourth Amendment to a controlled substance charge.

We decline to adopt the proposed rule from the dissent in Carloss at this time. Although the question of whether a single no trespassing sign is adequate to revoke the implied license is an issue of first impression in Idaho, we note that some Idaho cases have suggested that a lone no trespassing sign could be sufficient. See Christensen , 131 Idaho 143, 953 P.2d 583 ; State v. Kapelle , 158 Idaho 121, 344 P.3d 901 (Ct. App. 2014) ; State v. Howard , 155 Idaho 666, 315 P.3d 854 (Ct. App. 2013). In State v. Christensen , we stated:

[I]t is not difficult to imagine circumstances where it would be entirely reasonable for a police officer, or for that matter any citizen, to ignore a no trespassing sign in order to approach a house. However, this case does not present such a set of circumstances.... Under these circumstances, [the officer] had no more right to ignore the no trespassing sign and closed gate than would a door-to-door solicitor.

131 Idaho at 148, 953 P.2d at 588. As a result, we do not foreclose the possibility that a single sign may be sufficient in some cases to revoke the implied license; however, it is not necessary for us to decide that question here because the sign at issue falls well short of being sufficient to do so, as discussed in the following section.

B. Under the Christensen standard, the no trespassing sign at issue was insufficient to revoke the implied license.

Albertson argues that the no trespassing sign he posted was visible and that it clearly conveyed to the public that he revoked the implied license for uninvited visitors to approach his home. Based upon the trial court's findings of fact, which are supported by substantial evidence in the record, we disagree. See State v. McNeely , 162 Idaho 413, 414-15, 398 P.3d 146, 147-48 (2017).

State v. Christensen is the seminal Idaho case addressing revocation of the implied license. 131 Idaho 143, 953 P.2d 583. There, an officer was attempting to speak with a homeowner regarding nearby residents who were suspected of growing marijuana. Id. at 145, 953 P.2d at 585. When he came upon a closed but unlocked gate blocking the driveway, the officer stepped over or around it and proceeded to the home. Id. A no trespassing sign was posted on the gate. Id. The State focused on the lack of a fence or other barrier to entry and argued that the closed gate and sign were "insufficient to create a reasonable expectation that no reasonably respectful citizen would approach the house." Id. at 147, 953 P.2d at 587.

In rejecting the State's arguments, the Court explained that,

[w]e do not believe that the ability to exclude the public is available only to those Idaho citizens with the resources to construct extensive fencing. We note that this is not a case where the message to the public was ambiguous. The no trespassing sign was clearly posted on a gate across the only public access to the property. In light of this unambiguous message, it is unclear what the presence of a fence would add.

Id. Accordingly, we determined that "the reasonably respectful citizen when confronted with a closed gate and a no trespassing sign does not proceed further, but respects the request for privacy that such efforts convey." Christensen , 131 Idaho at 147, 953 P.2d at 587 (emphasis added). As a result, we held that the officer's conduct in crossing the gate in an attempt to speak with the homeowner constituted an unreasonable search. Id.

As we stated in Christensen , homeowners need not "convert the areas around their homes into the modern equivalent of a medieval fortress in order to prevent uninvited entry by the public, including police officers." Id. However, to revoke the implied license, a person must convey a clear and unambiguous message that he wishes to preclude uninvited guests from approaching his home. Id. The question is what a reasonably respectful citizen would understand from the message. Thus, the test for whether an implied license to enter is effectively revoked is an objective one.

There is abundant evidence in the record supporting the district court's conclusion that Albertson failed to effectively revoke the implied license. For example, the officer testified regarding the sign that: "It's on the power pole.... [I]t's probably .... 11 by 14? 8 by 12, something like that .... One of the little ones." Although he noted that "you can still read [the sign]," he also testified that it is "black and faded out," and that "you've got to get pretty close to see those letters." Photographs that Albertson offered as exhibits at the suppression hearing support the officer's testimony. It is hardly legible, except upon close examination. The pictures reflect that the sign is small, almost completely blackened, and has faded lettering that can barely be discerned to read: "Private Property No Trespassing." Indeed, even if the sign were visible in the sense that one could see it posted on the power pole, it is so dark and faded that it is difficult to read from even a close vantage point. Therefore, the officer's testimony concerning the sign is objectively reasonable and consistent with the photographic evidence.

In addition, the photographic evidence in the record further establishes that, unlike the sign in Christensen , the sign here was not posted across the public access way or the path to the home. Rather, it is on a power pole in the northwest corner of Albertson's property. The sign wraps around the portion of the power pole that faces the interior of Albertson's property, rendering it difficult for visitors to clearly see from the road. Because it faces north, it would likely only be noticeable to a person who is traveling from the south. In fact, the sign faces directly away from a wooded area and a canal-not Albertson's home. Consequently, a reasonably respectful citizen could conclude that Albertson was attempting to keep people out of the trees and canal, as opposed to preventing them from approaching his front door. Finally, even if the sign were legible from a reasonable distance, the posting of the notice on a power pole, as opposed to a post or landmark clearly owned by Albertson, is less conspicuous and sends an ambiguous message as to whether the content of the sign was even applicable to Albertson's home. Thus, even if a lone sign may be sufficient to revoke the implied license, the placement and dilapidated condition of the sign at issue render it insufficient to do so under Christensen .

In sum, we conclude that the sign at issue here did not convey a clear and unambiguous message to the public to refrain from approaching Albertson's property. Thus, Albertson failed to revoke the implied license for the public, including police officers, to approach his home. As a result, the officer was in a location open to the public when he observed Albertson smoking methamphetamine in open view, and, therefore, no search occurred for purposes of the Fourth Amendment or the Idaho Constitution. Accordingly, we hold that the district court did not err in denying Albertson's motion to suppress.

IV. CONCLUSION

We affirm the district court's decision denying Albertson's motion to suppress.

Chief Justice BURDICK, and Justices BEVAN, STEGNER and Justice Pro Tem TROUT concur.

      "The curtilage is that area immediately surrounding and associated with a residence in which a person has a reasonable expectation of privacy." Christensen , 131 Idaho at 147, 953 P.2d at 587.

      Albertson entered an Alford plea pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      Albertson does not argue that the Idaho Constitution does or should provide more protection in this scenario than the United States Constitution. Instead, he asserts that "[t]he Idaho Constitution provides similar protections" to those provided by the Fourth Amendment to the United States Constitution and argues generally that his rights were violated under both constitutions.

      We acknowledge that this Court has adopted a more expansive interpretation of curtilage under Art. I, § 17 of the Idaho Constitution, than the Supreme Court of the United States has applied to the Fourth Amendment to the U.S. Constitution. For example, in United States v. Dunn , 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), the U.S. Supreme Court held: "Fourth Amendment protection extends to the 'curtilage' of a residence, which is the area or buildings immediately adjacent to a home that a reasonable person may expect to remain private even if accessible to the public." However, in Idaho, we recognize that "the curtilage of a home located within the city limits of Boise may not be the same as the curtilage of a ranch located in one of Idaho's rural counties." State v. Webb , 130 Idaho 462, 467, 943 P.2d 52, 57 (1997). Thus, "[a] trial court must ... take into consideration the differences in custom and terrain within different areas of the state when contemplating particular expectations of privacy" surrounding a home. Id. The applicability of this distinction has not been raised by either side on appeal.

      Notably, the majority in Carloss flatly rejected the dissent's proposition that a single no trespassing sign is sufficient to revoke the implied license. Carloss , 818 F.3d at 995 ("As an initial matter, just the presence of a 'No Trespassing' sign is not alone sufficient to convey to an objective officer, or member of the public, that he cannot go to the front door and knock.").

      Idaho Code section 18-7008(A)(9)(a) uses the word "signs," while subsections (c)-(d) suggest that a "sign" is sufficient. This statute was repealed on July 1, 2018, and the relevant portions were re-designated as section 18-7008(2)(a)(i)-(iv). H.B. 658, 64th Leg., 2d Reg. Sess., 2018 Idaho Sess. Laws 829-30.

      Although the district court did not cite Christensen in its decision denying Albertson's motion to suppress, both sides on appeal appropriately recognize it as controlling precedent.

      We note that, although the test is an objective one, if an officer is actually aware that a person has acted to revoke the implied license, he would not be free to approach the home. That is not the case here, as the officer testified that he did not see the no trespassing sign until a week after he arrested Albertson. Further, although the district court assumed that the officer could have seen the sign, it acknowledged that "there is no evidence that [the officer] noticed the sign" before approaching Albertson's home on August 10, 2016.


author: BEVAN, Justice

text:
    Miranda MOSER, Claimant-Appellant, v. ROSAUERS SUPERMARKETS, INC., Employer, Defendant-Respondent.
    Docket No. 46004
    Supreme Court of Idaho, Boise, April 2019 Term.
    Opinion Filed: May 15, 2019
    Goicoechea Law Offices, Lewiston, Attorneys for Appellant. Michael T. Kessinger argued.
    Gardner Law Office, Boise, Attorneys for Respondent. Michael G. McPeek, argued.
   BEVAN, Justice

I. NATURE OF THE CASE

Miranda Moser appeals an Idaho Industrial Commission ("Commission") order on her petition for declaratory ruling that considered whether an employer could compel an injured worker to attend an Idaho Code section 72-433 medical examination without first establishing that the worker is in the period of disability. The Commission held that following the claim of an accident, injury, or occupational disease, an employer may require a claimant's attendance at such a medical examination. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

On October 9, 2016, Moser dislocated her right shoulder when she lifted a 24-pack of soda while working as a cashier for Rosauers Supermarkets, Inc. ("Rosauers"). Rosauers accepted the claim even though Moser had a pre-existing history of recurrent instability of her right shoulder. On November 16, 2016, Moser underwent shoulder surgery. After surgery, Moser continued to suffer from "pseudosubluxation" and her surgeon, Dr. Adam Jelenek, recommended she receive a second opinion from a physician in Seattle. Rather than authorizing the request for referral, Rosauers arranged for Moser to be evaluated by Dr. Michael Ludwig who opined that Moser's shoulder dislocation likely resulted from her pre-existing condition. On September 8, 2017, Dr. Ludwig concluded that Moser had returned to her pre-injury baseline and that she did not require any further medical care. Moser was given an 11% upper extremity impairment apportioned entirely to Moser's documented pre-injury condition.

On January 3, 2018, Moser filed a workers' compensation complaint that raised these issues:

1. Entitlement to medical care;
2. Entitlement to temporary total disability;
3. Extent of permanent partial impairment;
4. Entitlement to permanent disability;
5. Entitlement to total permanent disability including total disability pursuant to the odd-lot doctrine;
6. Entitlement to retraining;
7. Entitlement to attorney fees for an unreasonable denial of benefits.

On January 17, 2018, Rosauers filed a notice of medical exam to be performed by Dr. Joseph Lynch on February 5, 2018. Moser responded with a letter conveying she would not be attending the medical exam. Rosauers then filed a motion for sanctions and Moser filed a motion for protective order. The Referee denied Moser's motion for protective order and ordered Moser to appear at an Idaho Code section 72-433 examination. On February 7, 2018, Rosauers filed a second notice of medical exam to be performed by Dr. Joseph Lynch on April 2, 2018.

On February 15, 2018, Moser filed a Judicial Rule of Practice and Procedure ("J.R.P.") 15 petition for a declaratory ruling. She sought an order on whether an employer could compel a claimant to attend an Idaho Code section 72-433 examination without first establishing the claimant was within her "period of disability," which she argued was limited to a period when she was actually receiving benefits. On March 21, 2018, Moser filed a notice that she would not attend the medical examination Rosauers had scheduled for April 2, 2018.

On April 4, 2018, the Commission entered an order on the petition for declaratory ruling rejecting Moser's argument that a claimant need only attend an Idaho Code section 72-433 medical examination while that injured worker is actually receiving benefits. The Commission found the statute to be ambiguous and concluded that following the claim of an accident, injury, or occupational disease, an employer may require a claimant's attendance at a medical exam. On May 3, 2018, Moser appealed the Commission's order to this Court.

III. ISSUES ON APPEAL

1. Whether Moser's appeal is proper.

2. Whether the Commission erred in concluding that Rosauers could require an Idaho Code section 72-433 medical examination without first establishing that Moser was within her period of disability.

IV. STANDARD OF REVIEW

"When this Court reviews a decision of the Industrial Commission, it exercises free review over questions of law, but reviews questions of fact only to determine whether substantial and competent evidence supports the Commission's findings." Lopez v. State, 136 Idaho 174, 176-77, 30 P.3d 952, 954-55 (2001) (citing Rivas v. K.C. Logging , 134 Idaho 603, 7 P.3d 212 (2000) ). We exercise free review over the construction of a statute. Id. at 177, 30 P.3d at 955 (citing Crawford v. Dep't of Corr., 133 Idaho 633, 991 P.2d 358 (1999) ).

V. ANALYSIS

A. Moser has properly appealed the Commission's declaratory ruling.

Rosauers first raises concerns over whether Moser's appeal is proper because Moser's complaint sought additional benefits that still need to be adjudicated by the Commission. A party's ability to appeal from Commission proceedings is set forth in Idaho Appellate Rule 11, which provides that a party may appeal as a matter of right "[f]rom any final decision or order of the Industrial Commission or from any final decision or order upon rehearing or reconsideration by the administrative agency." I.A.R. 11(d)(1). Under the Commission's Judicial Rules of Practice and Procedure, after a party has filed a petition for declaratory ruling the Commission may "[i]ssue a written ruling which shall have the full force and effect of a final order or judgment." J.R.P. 15(F)(3).

Moser filed a J.R.P. 15 petition for a declaratory ruling on whether an employer can compel a claimant to attend an Idaho Code section 72-433 examination without first establishing the claimant was within her "period of disability." On April 4, 2018, the Commission entered an order which concluded that following the claim of an accident or injury an employer could require a claimant's attendance at a medical exam under Idaho Code section 72-433. Pursuant to the Judicial Rules of Practice and Procedure, such a ruling carried the "full force and effect of a final order or judgment." J.R.P. 15(F)(3). Thus, Moser had forty-two days to appeal the Commission's decision. I.A.R. 14(a). On May 3, 2018, Moser filed a timely appeal to this Court. Thus, Moser's appeal is properly before us.

B. The Commission did not err in concluding that an employer can require an Idaho Code section 72-433 medical examination once a claimant has filed a complaint seeking disability benefits.

Moser argues that because she was not receiving income benefits when Rosauers filed its request for an Idaho Code section 72-433 medical examination she was not within her "period of disability" and the Commission erred in finding that she could be compelled to attend the examination. Moser maintains that a section 72-433 medical examination can be ordered only during the period a claimant is receiving income benefits.

This Court exercises free review when interpreting a statute. Lopez, 136 Idaho at 178, 30 P.3d at 956 (quoting State ex rel. Industrial Commission v. Quick Transp., Inc., 134 Idaho 240, 999 P.2d 895 (2000) ). If the statutory language is unambiguous, we merely apply the statute as written. Id. If the statute is ambiguous, then we seek to determine the legislative intent. Id. When doing so, we may examine the language used, the reasonableness of proposed interpretations, and the policy behind the statute. Id. Interpretation begins with the literal language of a statute. Wernecke v. St. Maries Joint Sch. Dist. No. 401, 147 Idaho 277, 282, 207 P.3d 1008, 1013 (2009). "The statute should be considered as a whole, and words should be given their plain, usual, and ordinary meanings." Id. That said, the Court must also "give effect to all the words and provisions of the statute so that none will be void, superfluous, or redundant." Id. When interpreting the Worker's Compensation Act, this Court "liberally construe[s] its provisions in favor of the employee in order to serve the humane purpose for which it was promulgated." Id.

The statute at issue, Idaho Code section 72-433, governs a claimant's submission to a medical examination and provides, in pertinent part,

[a]fter an injury or contraction of an occupational disease and during the period of disability the employee, if requested by the employer or ordered by the commission, shall submit himself for examination at reasonable times and places to a duly qualified physician or surgeon. The employee shall be reimbursed for his expenses of necessary travel and subsistence in submitting himself for any such examination and for loss of wages, if any.

I.C. § 72-433(1).

We do not find Idaho Code section 72-433 to be ambiguous. We will therefore apply the statute as written. The statute requires that an employer may only request an employee attend a medical examination: (1) "[a]fter an injury or contraction of an occupational disease"; and (2) "during the period of disability." It is not disputed that Moser suffered an injury when she dislocated her right shoulder on October 9, 2016, so the question becomes whether Moser was within the "period of disability" at the time Rosauers requested the medical examination.

The Worker's Compensation Act broadly defines disability as "a decrease in wage-earning capacity due to injury or occupational disease." I.C. § 72-102(11). By filing a claim for disability benefits Moser has asserted that she suffered a decrease in wage-earning capacity and was within a "period of disability" as required by the statute, no matter if she was receiving income benefits at the time. This approach allows an employer to investigate the validity of a claim when there has been no determination of whether the claim is compensable. To hold otherwise would allow claimants who have stopped receiving monetary benefits to force an employer to resume paying benefits simply by filing a complaint, even if the employer has valid defenses against such claims. Such an interpretation would conflict with Idaho Code section 72-434, which provides that if an injured employee "unreasonably" fails to submit to a section 72-433 examination "the injured employee's right to take or prosecute any proceedings under this law shall be suspended until such failure or obstruction ceases, and no compensation shall be payable for the period during which such failure or obstruction continues." I.C. § 72-434. We construe the statute as a whole, Wernecke, 147 Idaho at 282, 207 P.3d at 1013, and hold that an injured employee is prohibited from pursuing proceedings while also refusing to submit to a section 72-433 medical examination. It would be unreasonable to allow a claimant to file a claim for disability and prohibit an employer any opportunity to assess the merit of those allegations before they have to compensate the claimant. "This Court will not read a statute to create an absurd result." The David & Marvel Benton Tr. v. McCarty, 161 Idaho 145, 151, 384 P.3d 392, 398 (2016).

Ultimately, the Commission found Idaho Code section 72-433 to be ambiguous and concluded that when it was considered in light of Idaho Code section 72-434, an employer could require a claimant's attendance at a medical exam following the claim of an accident/injury or occupational disease. The Commission recognized that employers must have timely access to an injured worker to promptly investigate a claim and to defend cases in litigation.

We disagree with the Commission's finding that Idaho Code section 72-433 is ambiguous. That said, we agree that it is not reasonable to allow a claimant to file a claim asserting that she is disabled in an effort to seek benefits without allowing an employer an opportunity to investigate the validity of her claims. After Moser's injury, Rosauers initially accepted the claim and paid benefits. Rosauers continued to pay benefits until September 2017, when Dr. Ludwig examined Moser and opined that she had reached maximum improvement. After this time, Moser had legitimate grounds to object to any request by Rosauers that she attend a medical examination. Even so, by filing her worker's compensation complaint seeking benefits for disability in January 2018, Moser's allegations placed her within a "period of disability" and she was therefore required to submit to Rosauers' request that she attend a medical examination so long as it was at a "reasonable time and place." Moser has not attacked the "reasonableness" of the medical examination by Dr. Lynch. Moser's argument is limited to whether she was within the "period of disability" required by Idaho Code section 72-433. The Commission properly concluded that Moser had to attend the medical examination requested by Rosauers.

VI. CONCLUSION

The Commission's decision is affirmed.

Chief Justice BURDICK, Justices BRODY, STEGNER and MOELLER concur.