Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 52467 STATE OF IDAHO, ) ) Filed: November 10, 2026 Plaintiff-Respondent, ) ) Melanie Gagnepain, Clerk v. ) ) RUBEN ORTIZ, JR., ) ) Defendant-Appellant. ) ) Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Benjamin J. Cluff, District Judge. Judgment of conviction for two counts of rape; one count of sexual battery of a minor child sixteen to seventeen years of age; and one count of intimidate, influence, or deter witness from testifying in criminal or juvenile matter, affirmed. Erik R. Lehtinen, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant. Hon. Raúl R. Labrador, Attorney General; Kacey L. Jones, Deputy Attorney General, Boise, for respondent. ________________________________________________ LORELLO, Judge Ruben Ortiz, Jr. appeals from his judgment of conviction for two counts of rape; one count of sexual battery of a minor child sixteen to seventeen years of age; and one count of intimidate, influence, or deter witness from testifying in criminal or juvenile matter. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND During the summer of 2022, Ortiz was living with his girlfriend, Catelynn, their infant son, and Catelynn’s sixteen-year-old sister, O.J.K. Over the course of the summer, Ortiz groped O.J.K. in a sexual manner on several different occasions and had sex with her twice. Ortiz also supplied O.J.K. with alcohol and once with cocaine. During this time, O.J.K. was afraid to confide in 1 Catelynn about what was happening for fear of complicating Catelynn’s life who was, at the time, pregnant with Ortiz’s second child. O.J.K. did, however, confide in her close friend, Z.T., who Ortiz also groped in a sexual manner when Z.T. stayed the night with O.J.K. After this incident, Z.T. became visibly upset and both Z.T. and O.J.K. told Catelynn about Ortiz’s behavior. After Z.T. returned home, she also confided in her mother. O.J.K. later moved back to her father’s house and told him about Ortiz’s behavior. O.J.K.’s father reported the matter to law enforcement, and a CARES interview was scheduled. However, the day before the CARES interview, Catelynn approached O.J.K. and said she and Ortiz would pay O.J.K. $1,000 and would pay Z.T. $500 not to make allegations against Ortiz. Both victims agreed to stay silent. Consistent with this, O.J.K. told the CARES interviewer that O.J.K.’s father had misunderstood her allegations. Approximately one year later, O.J.K., angry about the lack of consequences for Ortiz, told her doctor what Ortiz had done. The doctor reported the conduct to police, who then interviewed O.J.K. During a subsequent CARES interview, O.J.K. reiterated the allegations of sexual abuse. Z.T. also reported the sexual abuse to law enforcement and participated in a CARES interview. Catelynn initially denied knowing about the sexual abuse or paying O.J.K. or Z.T. for their silence. However, Catelynn eventually moved out of Ortiz’s house and reported the sexual abuse allegations as well as the payments made to silence the victims. The State charged Ortiz with two counts of rape of O.J.K. (I.C. § 18-6101), one count of sexual abuse of Z.T. (I.C. § 18-1508A), and two counts of intimidation of a witness (one for each victim) (I.C. § 18-2604). At trial, the State presented testimony from O.J.K., Z.T., Catelynn, the investigating officer, and an expert on delayed disclosures in child sexual abuse cases. During closing argument, Ortiz argued the State failed to present additional evidence such as text messages between the two victims, O.J.K.’s medical records, or testimony of Z.T.’s mother. The State objected, and the district court sustained the objection, stating: “That’s improper.” The jury found Ortiz guilty of all charges except the witness intimidation involving Z.T. Ortiz appeals. II. STANDARD OF REVIEW When a trial court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the trial court: (1) correctly perceived the 2 issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently with any legal standards applicable to the specific choices before it; and (4) reached its decision by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018). III. ANALYSIS Ortiz argues the district court erred in sustaining the State’s objection to his closing argument regarding the State’s failure to call individuals he characterizes on appeal as “logical witnesses.” Ortiz further asserts this was reversible error. The State responds that Ortiz has failed to show the district court abused its discretion in sustaining the State’s objection and that, even if there was error, it was harmless. We hold that any error in limiting Ortiz’s closing argument was harmless. Closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007). Its purpose is to enlighten the jury and to help the jurors remember and interpret the evidence. Id.; State v. Reynolds, 120 Idaho 445, 450, 816 P.2d 1002, 1007 (Ct. App. 1991). Both sides have traditionally been afforded considerable latitude in closing argument to the jury and are entitled to discuss fully, from their respective standpoints, the evidence and the inferences to be drawn therefrom. State v. Sheahan, 139 Idaho 267, 280, 77 P.3d 956, 969 (2003); Phillips, 144 Idaho at 86, 156 P.3d at 587. During his closing argument, Ortiz told the jury: Now, there were some things that the State could have brought to you, could have presented in this case. The texts from [Z.T.] to--or from [O.J.K.] to [Z.T.]. Doctor’s records. And she’s--I--[O.J.K.] tells you, well, the first time I really disclosed this was at the doctor. Now there are some privacy concerns, sure. But you can waive those. You can say, oh, yeah, you can see my doctor’s records. Or you could just show that there was an actual visit. She told her parent; right? Where are the parents? I don’t know. [Z.T.] talked to her mother. Mom could have gone up there and said, yeah, I remember talking to her. The prosecutor immediately objected, asserting Ortiz’s argument referred to “the possibility of speculative evidence.” The prosecutor further asserted Ortiz would have objected if the prosecutor “had done any of those things.” The district court sustained the objection, finding the argument was “improper.” 3 On appeal, Ortiz contends that his argument “about the State’s failure to present logical evidence or testimony was wholly appropriate” pursuant to State v. Hodges, 105 Idaho 588, 671 P.2d 1051 (1983). Ortiz also cites to State v. Mendoza, 151 Idaho 623, 262 P.3d 266 (Ct. App. 2011) in support of his argument. In response, the State acknowledges that Ortiz “may comment on the State’s failure to call logical witnesses” but contends the exception to this rule applies in this case. The exception is that closing arguments may not reference excluded or inadmissible evidence. State v. Dudley, 104 Idaho 849, 852, 664 P.2d 277, 280 (Ct. App. 1983). The State asserts that, because the missing evidence Ortiz highlighted would have been inadmissible hearsay, he could not comment on it in closing argument. Ortiz argues in reply that the State cannot rely on this exception because it was not part of the objection raised below and, as such, it is not preserved. A. Preservation Generally, this Court will not consider issues raised for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). An issue is preserved for appeal when a party presents the issues to the district court or if the district court issues an adverse ruling. State v. Jeske, 164 Idaho 862, 868, 436 P.3d 683, 689 (2019). The Idaho Supreme Court has recently elaborated on the parameters of the preservation requirement, noting the “preservation doctrine is not entirely inflexible.” Best v. State, 177 Idaho 150, 159, 586 P.3d 1153, 1162 (2026); see State v. Robertson, 176 Idaho 577, 588, 579 P.3d 942, 953 (2025). Application of the preservation doctrine instead “balances policies of encouraging trial courts to resolve claims of error, incentivizing trial court vigilance in enforcing the rules of criminal procedure and discouraging ‘sandbagging’ by lawyers, against the more practical considerations of whether a preservation requirement is feasible and capable of advancing these policies.” Best, 177 Idaho at 159, 586 P.3d at 1162. Following this guidance, we are not persuaded by Ortiz’s preservation claim. The State’s objection to Ortiz’s closing argument as eliciting speculative evidence in conjunction with the comment that he would have objected if the prosecutor “had done any of those things” was sufficient to capture the State’s argument that Ortiz’s argument included improper comment on inadmissible evidence. The district court’s ruling that the argument was “improper” would also encompass a conclusion that the evidence was inadmissible. Unlike an argument on the 4 admissibility of evidence, which requires specific grounds to be stated in order to preserve a claim of error (I.R.E. 103(a)), no such rule of specificity governs objections to closing arguments. The only rule applicable in the closing argument context is derived from case law, including the preservation principles noted above. In this case, the issue of whether the district court properly sustained the objection to Ortiz’s closing argument on the basis that it was “improper” is sufficient for us to consider the proffered reasons as to why it was improper. A contrary conclusion would not satisfy any of the policies underlying the preservation doctrine.1 B. Closing Argument Turning to the merits of the parties’ arguments on the propriety of Ortiz’s closing arguments, we start with the Idaho Supreme Court’s decision in Hodges. The closing argument challenged in Hodges involved the prosecutor’s description of one of its witness’s testimony as “uncontradicted.” Hodges, 105 Idaho at 591, 671 P.2d at 1054. The defendant objected to the description, contending it was a comment on his failure to testify; the objection was sustained. The Court on appeal held that the State’s argument that its witness’s testimony was uncontradicted was not “an impermissible reference to the defendant’s failure to testify.” Id. “Rather it is a comment on the weight of the evidence produced,” which did not implicate that the “defendant himself had some obligation to take the witness stand (and was admitting guilt by not doing so).” Id. at 591-92, 671 P.2d at 1054-55. In reaching this conclusion, the Court cited with approval the following rule articulated by the California Supreme Court: the prohibition on commenting on a defendant’s failure to take the witness stand does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. Id. at 592, 671 P.2d at 1055. In Mendoza, this Court considered a claim that the prosecutor committed misconduct during closing argument that highlighted the defendant’s failure to produce a particular piece of evidence or call a particular witness to corroborate her testimony. The defendant asserted that this argument “impermissibly shifted the burden of proof onto her to prove her innocence.” Mendoza, 151 Idaho at 627, 262 P.3d at 270. Citing Hodges, we rejected the defendant’s claim of error, 1 A contrary conclusion would also call into question whether Ortiz preserved his argument that the missing evidence he highlighted did not fall within the exception in Dudley given that he did not respond to the State’s objection by citing to Dudley or the exception cited therein. 5 stating: “The prosecutor was simply drawing attention to [the defendant’s] failure to introduce material evidence or to call logical witnesses.” Mendoza, 151 Idaho at 627, 262 P.3d at 270. We explained: [The defendant] testified that she put the envelope with “Peggy” written on it in her purse after she found it in the restroom of a store. This evidence was material to the issue of whether the jury believed that was how she actually acquired the counterfeit money. Mendoza also testified that she felt guilty about keeping the money she found and that she had shared these feelings with her daughter. [The defendant’s] daughter would have been a logical witness to corroborate her story of how she acquired the money. Therefore, it was not improper for the prosecutor to comment on the whereabouts of the envelope and why it had not been produced at trial, or to comment on the fact that [the defendant’s] daughter did not testify at trial. Id. at 627-28, 262 P.3d at 270-71. Citing Hodges and Mendoza, Ortiz argues that his references to text messages between the two victims; O.J.K.’s doctor and medical records; the victims’ parents; and Z.T.’s mother in particular, were all “logical” evidence and witnesses that the State could have, but failed to, present to corroborate the victims’ testimony. The State invokes the exception from Dudley that closing arguments may not reference excluded or inadmissible evidence, asserting that the evidence Ortiz argued should have been presented was inadmissible. In response, Ortiz argues that this exception does not apply because “Dudley and the authorities it relied on were holding that references [to] evidence which had been ruled inadmissible by the district court were properly precluded in closing argument.” We do not agree with Ortiz’s characterization of Dudley. In Dudley we stated: In Idaho, counsel for both sides traditionally have been afforded considerable latitude in their arguments to the jury. They have the right to discuss fully, from their respective standpoints, the evidence and the inferences and deductions arising therefrom. An exception to this rule, however, exists in respect to reference in closing arguments to excluded or inadmissible evidence. Dudley, 104 Idaho at 852, 664 P.2d at 280 (emphasis added). Nothing in the foregoing language supports Ortiz’s assertion that a ruling regarding admissibility is a prerequisite to the exception identified in Dudley. The authority upon which Dudley relied reinforces this point: “It has been recognized that it is improper for counsel to make reference during argument to evidence to which an objection was sustained, to evidence stricken from the record, or to evidence which was 6 otherwise excluded. The same is true concerning . . . totally inadmissible evidence.” Id. (quoting JACOB A. STEIN, CLOSING ARGUMENT, § 16 p.26 (1978)). Thus, if evidence is “totally inadmissible,” it is improper to condemn its absence in closing argument. Notwithstanding our conclusion on the scope of the exception, we recognize that determining admissibility in the abstract for the first time on appeal is not a task appellate courts should undertake lightly. Such an undertaking would be particularly problematic when the evidence is speculative or dependent on predicates to admissibility. For that reason, the standard of “total” inadmissibility would be satisfied only if there was no question that the missing evidence would not be admissible. We cannot say that standard is satisfied with respect to the objected to evidence Ortiz commented on in closing argument. Consequently, the challenged portion of Ortiz’s closing argument is not foreclosed by the exception from Dudley. C. Harmless Error Error is not reversible unless it is prejudicial. State v. Stell, 162 Idaho 827, 830, 405 P.3d 612, 615 (Ct. App. 2017). Where a criminal defendant shows an error based on a contemporaneously objected-to, nonconstitutional violation, the State then has the burden of demonstrating to the appellate court beyond a reasonable doubt the error did not contribute to the jury’s verdict. State v. Montgomery, 163 Idaho 40, 46, 408 P.3d 38, 44 (2017). Thus, we examine whether the alleged error complained of in the present case was harmless. See id. Harmless error is error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. Yates v. Evatt, 500 U.S. 391, 403 (1991); State v. Garcia, 166 Idaho 661, 674, 462 P.3d 1125, 1138 (2020). This standard requires weighing the probative force of the record as a whole while excluding the erroneous evidence and at the same time comparing it against the probative force of the error. Id. If the error’s effect is minimal compared to the probative force of the record establishing guilt beyond a reasonable doubt without the error, then the error did not contribute to the verdict rendered and is harmless. 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). Early in his closing argument, Ortiz stated that “what the Government has brought you against my client is just the testimony, the words of two teenagers and someone who’s been 7 convicted of a felony.” During his closing argument, before and after the district court sustained the State’s objection, Ortiz commented on evidence the State did not present, which he argued would be important to assess the victims’ credibility. Ortiz explained to the jury that the State had failed to present physical evidence--testimony from “independent witnesses” who “saw” or “heard” anything. Ortiz also highlighted the lack of evidence from the victims’ cell phones, noting a phone is “a teenager’s life.” Ortiz also noted the lack of evidence that he was involved in any of the discussions to pay the victims to remain silent even though Catelynn testified that there was a written message between her and Ortiz regarding the payments. Ortiz also argued multiple times that witness testimony alone was insufficient to prove the State’s case beyond reasonable doubt. The portion of Ortiz’s closing argument that was subject to the sustained objection was brief and, to the extent those aspects of his arguments were disregarded by the jury as a result of the sustained objection,2 the points were largely redundant to other aspects of his argument that raised the same point--the lack of evidence other than the victims’ testimony. Therefore, we hold that any error caused by the sustained objection was harmless. IV. CONCLUSION Ortiz has shown error in the district court’s decision to sustain an objection by the State during his closing argument. However, the error was harmless. Accordingly, Ortiz’s judgment of conviction for two counts of rape; one count of sexual battery of a minor child sixteen to seventeen years of age; and one count of intimidate, influence, or deter witness from testifying in criminal or juvenile matter is affirmed. Chief Judge TRIBE and Judge FLEMING, CONCUR. 2 Unlike another portion of Ortiz’s closing argument that was subject to a sustained objection from the State, the district court did not order the objected-to language at issue on appeal “stricken” or advise the jury to “disregard” it. 8