University of Idaho College of Law

https://digitalcommons.law.uidaho.edu/not_reported/8045/thumbnail.jp

Electronically Filed
1/6/2021 12:42 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF
IDAHO, IN AND FOR THE COUNTY OF ADA
Supreme Court Case No. 48249-2020
STATE OF IDAHO Ada County District Court
Petitioner-Respondent, CR0 1 _ 1 9-38025
VS.
SCOTT IOKEPA KAHOIWAI
Respondent—Appellant.
APPELLANT’S BRIEF
Appeal from the District Court 0f the
Fourth Judicial District 0f the State 0f Idaho, in and for the County 0f Ada
HONORABLE MICHAEL OTHS
Presiding Judge
ANTHONY R. GEDDES LAWRENCE WASDEN
Ada County Public Defender Idaho Attorney General
JUSTINE PARKER KEN JORGENSEN
Deputy Public Defender Deputy Attorney General
200 West Front Street 700 West State Street
Suite 1107 4th Floor,
Boise, Idaho 83702 Boise, Idaho 83720
Telephone: (208) 287-7400 Telephone: (208) 334-4545
Attorney for Respondent—Appellant Attorney for Petitioner-Respondent
TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................................. i
TABLE OF AUTHORITIES ........................................................................................... ii
I. STATEMENT OF THE CASE ......................................................................................... 1
A. Nature 0f the Case ........................................................................................................ 1
B. Statement of Facts and Course 0f Proceedings ......................................................... 1
II. ISSUES PRESENTED ON APPEAL ...............................................................................3
III. STANDARD OF REVIEW ............................................................................................... 4
IV. ARGUMENT ......................................................................................................................5
A. The District Court Erred In Affirming The Denial Of The Motion For Judgment Of
Acquittal Because The State’s Evidence Was Insufficient T0 Support A Guilty
Verdict For Possession of Paraphernalia And Possession OfA Controlled
Substance ...............................................................................................5
V. CONCLUSION ........................................................................................................................ 6
Appellant’s Brief i
TABLE OF AUTHORITIES
Cases
Bailey v. Bailey, 153 Idaho 526 (2012) ............................................................................................4
State v. Betancourz‘, 151 Idaho 638 (201 1) ...................................................................................... 5
State v. Decker, 108 Idaho 683 (1985) ............................................................................................4
State v. Fields, 127 Idaho 904 (1995) ..............................................................................................4
State v. Herrera-Brito, 131 Idaho 383 (1998) ................................................................................. 4
State v. Knutson 121 Idaho 101 (1991) ............................................................................................4
State v. Korn, 148 Idaho 413 (2009) ................................................................................................4
Statutes
I.C. § 37-2734A ........................................................................................................................... 1, 5
I.C. § 37-2732 .............................................................................................................................. 1, 5
Rules
I.R.C. 29 ...................................................................................................... 4, 5
Appellant’s Brief ii
I. STATEMENT OF THE CASE
A. Nature of the Case
Scott Kahoiwai went to trial on the charges 0f misdemeanor possession 0f drug
paraphernalia and misdemeanor possession 0f a controlled substance. After the State rested, Mr.
Kahoiwai moved for a judgment of acquittal on both offenses. The magistrate court denied his
motion, and the jury found him guilty as charged. Mr. Kahoiwai appealed t0 the district court.
He argued the State failed to meet its burden t0 prove the elements 0f each offense beyond a
reasonable doubt and therefore the court should have granted his motion for a judgment 0f
acquittal. The district court affirmed the magistrate court’s denial of the Rule 29 motion. Mr.
Kahoiwai now appeals the decision 0f the district court.
B. Statement of Facts and Course 0f Proceedings
The State charged Mr. Kahoiwai with possession of drug paraphernalia, a pipe, in
Violation 0f I.C. §37-2734A, and possession of a controlled substance, marijuana, in Violation of
LC. §37-2732(c)(3). On August 29, 2019, Boise Police Officers were on bike patrol in Ann
Morrison Park when they observed a large group gathered around a picnic table. (Tr., V01. I, p.
81, Ls. 4-9). Officers rode over t0 the group of approximately 8-10 people When they observed
Mr. Kahoiwai hand an object to a woman sitting on the grass. (Tr., V01. I, p. 82, Ls. 2-8). Upon
further inspection, officers found several objects next to the woman including a marijuana pipe.
(Tr., V01. I, p. 82, Ls. 16-20). Officers issued Mr. Kahoiwai and the woman citations for
paraphernalia and possession of a controlled substance.
Appellant’s Brief 1
The magistrate court held a one-day trial on December 11, 2019. (See generally Tr. V01.
I). In the State’s case in chief, the State elicited testimony from Officer Zimmer, Officer
Johnson, and Idaho State Laboratory technician, Gina Giso. The State also introduced
photographs 0f the items seized at the scene, a lab report, and on-body Video footage from the
officers.
After the State rested, Mr. Kahoiwai moved for a judgment 0f acquittal on both charges.
Mr. Kahoiwai argued that the State did not present sufficient evidence that Mr. Kahoiwai used 01‘
possessed With the intent to use any paraphernalia nor that he was ever in possession of
marijuana. The court denied the motion. The jury found Mr. Kahoiwai guilty as charged and
Mr. Kahoiwai was sentenced the same day.
Appellant’s Brief 2
II. ISSUE
Did the district court err by affirming the magistrate judge’s denial 0f Mr. Kahoiwai’s motion for
judgment of acquittal for possession of paraphernalia and possession 0f a controlled substance?
Appellant’s Brief 3
III. STANDARD OF REVIEW
The Appellate Court reviews the decision 0f the district court sitting in its appellate
capacity rather than the decision of the magistrate court. Bailey v. Bailey, 153 Idaho 526, 529,
248 P.3d 970, 973 (2012). The Court is procedurally bound to reverse or affirm the decisions 0f
the district court and therefore must determine Whether the district court incorrectly affirmed the
magistrate court’s denial of the Rule 29 motion. State v. Korn, 148 Idaho 413 n. 1, 224 P.3d 480
482 n. 1(2009).
Under Idaho Criminal Rule 29(a), a judgment 0f acquittal shall be entered if the evidence
is insufficient t0 sustain a conviction of the offense charged. Upon review 0f the denial of
a Rule 29 motion for judgment 0f acquittal, the Court must determine whether the evidence was
sufficient to sustain a conviction 0f the crime charged. State v. Fields, 127 Idaho 904, 912-13,
908 P.2d 121 1, 1219-20 (1995). A finding of guilt will not be overturned on appeal where there
is substantial evidence upon Which a reasonable trier 0f fact could have found that the
prosecution sustained its burden of proving the essential elements of a crime beyond a reasonable
doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101 (1998). The Court does
not substitute its View for that of the jury as t0 the credibility 0f the Witnesses, the weight t0 be
given to the testimony, and the reasonable inferences to be drawn from the evidence. State v.
Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (1991); State v. Decker, 108 Idaho 683, 684,
701 P.2d 303, 304 (1985). In making this determination, all reasonable inferences are made in
favor of the State. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101;Knuts0n, 121 Idaho at
104, 822 P.2d at 1001.
Appellant’s Brief 4
IV. ARGUMENT
A. The District Court Erred In Affirming The Magistrate Judge’s denial 0f Mr. Kahoiwai’s
Motion t0 Dismiss
Mr. Kahoiwai asserts there was insufficient evidence t0 obtain his conviction for
possession 0f paraphernalia under and possession 0f a controlled substance.
The paraphernalia statute provides: “it is unlawful for any person to use, or to possess
with the intent t0 use, drug paraphernalia...t0 introduce into the human body a controlled
substance” LC. §37-2734A. To prove Mr. Kahoiwai guilty 0f this offense the State would have
had t0 prove beyond a reasonable doubt that Mr. Kahoiwai used 0r possessed the pipe with the
intent t0 use it t0 consume a controlled substance. Idaho Code §37-2732C(a) states it is unlawful
t0 use 0r be under the influence 0f any controlled substance. A crucial element to the State’s
proof is a sufficient showing of a nexus between the accused and the controlled substance. State
v. Betancourt, 151 Idaho 635, 638, 262 P.3d 278, 281 (201 1).
The district court incorrectly concluded there was sufficient evidence t0 demonstrate the
State had met its burden as t0 each offense. The district court relied on the evidence at provided
at trial however noted that it was conflicting. (R., V01., I, p. 47).
Testimony provided by Officer Zimmer indicated that he observed Kahoiwai hand a
small tubular object t0 a woman sitting nearby. (TL, V01. I, p. 82, Ls. 2-3). Officer Zimmer
further testified that there were several items next to the woman, including a pipe, lighter, and
banana. (TL, V01. I, p. 98, Ls. 3-7). In the district court’s decision, the court stated that there was
a pipe hot to the touch and Officer Zimmer testified “that he observed the female take this item
from the Appellant.” (R., VOL, I, p. 46). It is not clear based 0n the language used by the court if
the reference item was the pipe, but the transcript 0f Officer Zimmer’s testimony specifically
Appellant’s Brief 5
stated he could not determine whether the object handed to the woman was in fact the pipe.
Furthermore, Officer Zimmer stated he did not see Mr. Kahoiwai d0 anything prior t0 handing
the woman the object. (Tr. V01. I, p. 97, Ls. 19-22).
The State’s second Witness, Officer Johnson, Claimed t0 have approached Mr. Kahoiwai
from behind, but that he observed him hold something up to his mouth. (TL, V01. I, p. 115, Ls.
4-7). Officer Johnson then testified that he observed Mr. Kahoiwai hand something to the
woman “cupped in his hand.” (T11, V01. I, p. 116, L. 21—p. 117, L. 9). Through further
testimony, Officer Johnson admitted t0 omitting mention of observing Mr. Kahoiwai smoking in
his police report (T11, V01. I, p. 127, Ls. 21-23).
Officers testified they did not 100k for signs 0f impairment in Mr. Kahoiwai nor did Mr.
Kahoiwai make any statements regarding knowing, consuming 01‘ possessing marijuana. (TL,
V01. I, p. 122, Ls. 11-18). However, an individual at the scene did make a statement that any
marijuana belonged to him. (Tr., V01. I, p. 130, Ls. 7-10). There was n0 evidence provided apart
from Officer Johnson’s conflicting observation that Mr. Kahoiwai was smoking from a pipe as
he was approaching him from behind, to indicate that Mr. Kahoiwai was in possession 0f any
paraphernalia or possession of a controlled substance. There was not substantial evidence upon
Which a reasonable trier 0f fact could have found that the State sustained its burden t0 prove this
material element beyond a reasonable doubt and therefore the district court erred in affirming the
magistrate judge’s denial 0f Mr. Kahoiwai’s Rule 29 motion.
V. CONCLUSION
Mr. Kahoiwai respectfully requests that this Court vacate his convictions 0f possession 0f
paraphernalia and possession 0f a controlled substance. The State failed t0 provide sufficient
Appellant’s Brief 6
evidence to prove all material elements beyond a reasonable doubt. The district court erred in
affirming the magistrate judge’s denial of Mr. Kahoiwai’s Rule 29, motion for judgment 0f
acquittal, and prays this Court grant him the relief by remanding this matter With an instruction
to enter a judgment of acquittal for both offenses.
DATED January O6, 2021.
5mg!”
Justine E. Parker
Attorney for Defendant
CERTIFICATE OF MAILING
I HEREBY CERTIFY that 0n January O6, 2021, I served a true and correct copy 0f the within instrument t0
the Boise City Attorney.
Mmc ‘%
Mandi Wiefisz)
Appellant’s Brief 7


English

State v. Kahoiwai Appellant\u27s Brief Dckt. 48249

https://digitalcommons.law.uidaho.edu/not_reported/8054/thumbnail.jp

UIdaho Law 
Digital Commons @ UIdaho Law 
Not Reported Idaho Supreme Court Records & Briefs 
5-20-2021 
State v. Sanchez Respondent's Brief Dckt. 48266 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
JOHN C. McKINNEY 
Deputy Attorney General 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
v. 
 
BILLY PEREZ SANCHEZ, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
No. 48266-2020 
 
Ada County Case No. 
CR01-19-36533 
 
 
RESPONDENT’S BRIEF 
 
 Has Sanchez failed to show that the district court abused its discretion by sentencing him 
to five years with two years fixed for aggravated assault, and two years indeterminate for felony 
malicious injury to property, all suspended, and placing him on probation for seven years? 
 
ARGUMENT 
 
Sanchez Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 Samuel Camacho, Jarin Carey, and Megan Norman were together at a Jackson’s Food Store 
in Boise when they were approached by Sanchez, who, highly intoxicated, verbally threatened 
Electronically Filed
5/20/2021 12:54 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
them “by stating that he had a gun and that he was going to get it from his vehicle.”  (PSI, p.401.1)  
Sanchez got into his Ford Excursion and drove it toward the three campers, and then drove “into 
Sam’s Chevrolet Cobalt that was parked in the gas station parking lot and proceeded to drive 
through a fence and into the lawn” of a residence.  (Id.)  When Megan tried to get the keys out of 
the Excursion’s ignition, Sanchez punched her face with his closed fist.  (Id.)  As Sanchez drove 
away from the gas station, he “hit Jarin and Megan with his vehicle,” and they were in fear for 
their lives.  (Id.)  When police officers located Sanchez, he fought with them, and spit in the faces 
of the officers and medical personnel, screaming incoherently.  (Id.)   Inside Sanchez’s vehicle 
were containers of alcohol and prescription pills.  (Id.)  As he was transported to a hospital, 
Sanchez yelled obscenities, refused to answer questions, and said “he was placing a curse on the 
responders.”  (Id.)  After arriving at the hospital, Sanchez continued to be “very combative."  (Id.) 
A blood sample drawn from Sanchez showed that his blood alcohol concentration level was 0.21.  
(PSI, pp.401, 504.)   
 Samuel Camacho subsequently informed law enforcement he “got injured chasing the 
suspect’s vehicle” when Sanchez “quickly turned towards him” and Samuel had to “quickly stop 
and jump out of the way,” injuring “his wrist, some ribs, and a leg.”  (R., p.73.)  Megan Norman 
reported that she had a “goose egg” on her right temple where Sanchez struck her “and several 
small cuts on her knees from the broken glass of the driver’s side door.  Megan explained that as 
                                            
1  The Presentence Report (“PSI”) is found at pages 400-418 of the electronic court file entitled 
“Appeal Confidential Exhibits 10-27-2020 [etc.]”  
 
 3 
the driver’s side door was opened, the broken glass fell out and ultimately cut her knees as she 
attempted to get the keys out of the ignition before getting struck by Billy.”2  (PSI, p.74.)   
The state charged Sanchez with four counts of aggravated assault, felony malicious injury 
to property, driving under the influence (excessive alcohol concentration), and three counts of 
misdemeanor battery.  (R., pp.59-61.)  Pursuant to a plea agreement, Sanchez pled guilty to one 
count of aggravated assault, malicious injury to property, and driving under the influence 
(excessive alcohol concentration).  (R., pp.70-71, 75-86.)  In a Judgment of Conviction entered on 
April 13, 2020, Sanchez was sentenced to five years with two years fixed for aggravated assault, 
two years indeterminate with zero years fixed for malicious injury to property (felony), to be served 
consecutively, and 226 days jail for driving under the influence (excessive alcohol concentration).  
(R., pp.90-98.)  The district court suspended execution of his sentences and placed Sanchez on 
probation for seven years.  (Id.)  Sanchez filed a notice of appeal on August 28, 2020.  (R., pp.107-
109.)    
 On appeal Sanchez contends that “his aggregate unified sentence of seven years, with two 
years fixed, is excessive.”  (Appellant’s brief, p.5.)  Sanchez specifically asserts that “had the 
district court properly considered his remorse and severe mental health conditions, it would have 
imposed a less severe sentence.”  (Appellant’s brief, p.7.)  This Court lacks jurisdiction to hear 
this appeal because it is untimely.  Even if the merits of Sanchez’s appeal are considered, 
application of the relevant standards shows Sanchez has failed to establish that the district court 
abused its sentencing discretion. 
 
 
                                            
2  According to a police report, Jarin Carey “had a sore left knee from the incident[.]”  (PSI, p.30.)  
Other attempts by law enforcement to have Jarin provide additional medical information failed.  
(PSI, pp.74-75.)   
 4 
B. Standard Of Review 
 
“The question of a court’s jurisdiction is a question of law over which this Court exercises 
free review.”  State v. Kavajecz, 139 Idaho 482, 483, 80 P.3d 1083, 1084 (2003). 
The length of a sentence is reviewed under an abuse of discretion standard considering the 
defendant’s entire sentence.  State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007) (citing 
State v. Strand, 137 Idaho 457, 460, 50 P.3d 472, 475 (2002); State v. Huffman, 144 Idaho 201, 
159 P.3d 838 (2007)).  It is presumed that the fixed portion of the sentence will be the defendant’s 
probable term of confinement.  Id. (citing State v. Trevino, 132 Idaho 888, 980 P.2d 552 (1999)).  
Where a sentence is within statutory limits, the appellant bears the burden of demonstrating that it 
is a clear abuse of discretion.  State v. Baker, 136 Idaho 576, 577, 38 P.3d 614, 615 (2001) (citing 
State v. Lundquist, 134 Idaho 831, 11 P.3d 27 (2000)).  A sentence is reasonable if it appears 
necessary to accomplish the primary objective of protecting society and to achieve any or all of 
the related goals of deterrence, rehabilitation or retribution.   State v. Schiermeier, 165 Idaho 447, 
454, 447 P.3d 895, 902 (2019); Anderson, 163 Idaho at 517, 415 P.3d at 385 (citing State v. 
Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982)).   
In evaluating whether a lower court abused its discretion, the appellate court conducts a 
four-part inquiry, which asks “whether the trial court: (1) correctly perceived the issue as one of 
discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the 
legal standards applicable to the specific choices available to it; and (4) reached its decision by the 
exercise of reason.”  State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018) (citing 
Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)). 
 
 
 5 
C. This Court Lacks Appellate Jurisdiction Because The Appeal Is Untimely 
 “A timely notice of appeal is essential to vesting jurisdiction in the Supreme Court of 
Idaho.”  Stibal v. Fano, 157 Idaho 428, 433, 337 P.3d 587, 592 (2014).  “Failure to timely file such 
a notice shall cause automatic dismissal of the issue on appeal.”  Hamilton v. Alpha Servs., LLC, 
158 Idaho 683, 693, 351 P.3d 611, 621 (2015) (internal quotations omitted).   
Idaho Appellate Rule 14(a) provides that appeals “from the district court may be made only 
by physically filing a notice of appeal with the clerk of the district court within 42 days from the 
date evidenced by the filing stamp of the clerk of the court on any judgment or order of the district 
court appealable as a matter of right in any civil or criminal action.”  Rule 14(a) allows the time to 
appeal to be extended where a motion is filed “within fourteen (14) days of the entry of the 
judgment which, if granted, could affect the judgment, order or sentence in the action, in which 
case the appeal period for the judgment and sentence commences to run upon the date of the clerk's 
filing stamp on the order deciding such motion.”  I.A.R. 14(a).   
Here, Sanchez filed his notice of appeal on August 28, 2020 – over four months after his 
Judgment of Conviction was entered on April 13, 2020.  (See R., pp.90, 107.)  Unless he filed a 
motion within 14 days of April 13, 2020 which could have affected “the judgment, order or 
sentence,” he is not entitled to an extension of his time to appeal.  A review of the record reveals 
that no motion was filed by either party during that 14-day period, much less one filed by Sanchez 
that could have affected the judgment, order, or sentence.  (See generally R., pp.7 (Register of 
Actions), 90-101.)  Therefore, Sanchez’s Notice of Appeal was untimely and, as a result, this 
appeal should be dismissed because this Court lacks jurisdiction to hear it.   
 
 
 
 
 6 
D. Sanchez Has Shown No Abuse Of The District Court’s Discretion 
 
 To bear the burden of demonstrating an abuse of discretion, the appellant must establish 
that, under any reasonable view of the facts, the sentence was excessive.  State v. Farwell, 144 
Idaho 732, 736, 170 P.3d 397, 401 (2007).  The record shows no abuse of discretion.   
The district court said it was exercising its discretion and applying the relevant legal criteria 
directing the exercise of that discretion.  (Tr., p.41, L.22 – p.42, L.3.)  The maximum prison 
sentence for aggravated assault and felony malicious injury to property is five years.  I.C. §§ 18-
906, 18-7001(2).  The district court imposed a sentence of five years with two years fixed for 
aggravated assault, and two years indeterminate for felony injury to property, which fall within the 
statutory guidelines.  (R., pp.90-98.)   
Sanchez’s LSI-R (“Level of Service Inventory-Revised”) evaluation rated him in the 
“moderate risk category.”  (PSI, p.414.)  Sanchez’s GAIN-I Core assessment recommended that 
he undergo Level 1 outpatient treatment and abstain from “all mood-altering chemicals[,]” follow 
“all recommendations from mental health screening[,]” and undergo “random substance use 
testing.”  (PSI, p. 415.)  The Presentence Report concluded that the “violent nature of Mr. 
Sanchez’s crime is concerning[,]” and that Sanchez may benefit from placement in the retained 
jurisdiction (“rider”) program, but “[i]f he demonstrated the expected progress in a structured 
environment, treatment might be transferred to a community-based setting.”  (PSI, p.416.) 
The district court acknowledged that, under Toohill, the number one goal of sentencing is 
the protection of society, and found there was “a demonstrated connection between [Sanchez’s] 
addiction issues and harm to the public.”  (Tr., p.42, Ls.1-5.)  The court observed, “This was a 
crime of violence and significant potential for horrific injuries beyond that that actually occurred.  
 7 
We were lucky there was not somebody killed or seriously and permanently disabled based on the 
facts of this case.  So its’s a very significant case in that regard.”  (Tr., p.42, Ls. 6-12.)   
Despite the risk of great injury or death Sanchez’s actions created, the court did not 
sentence him to prison or even place him in the rider program.  Instead the court suspended his 
sentences and placed him on supervised probation for seven years so he could remain in the 
community.  (R., p.92.)  Nonetheless, Sanchez contends that “had the district court properly 
considered his remorse and severe mental health conditions, it would have imposed a less severe 
sentence.”  (Appellant’s brief, p.7.)   
It is undisputed that Sanchez suffers from schizophrenia and abused alcohol and 
methamphetamine.  (See PSI, p.395 (I.C. § 19-2522 court ordered Psychological Evaluation by 
Dr. Chad Sombke).)   After initially being charged, the district court ordered Sanchez temporarily 
committed to the Department of Health and Welfare pursuant to I.C. § 18-212.  (R., pp.44-45, 48-
49 (Order Terminating Commitment).)  At sentencing, the court fully considered Sanchez’s mental 
condition and said it was encouraged by Dr. Sombke’s report, which concluded that “Mr. 
Sanchez’s risk to the community at large would be Low.  If he is able to continue managing his 
psychiatric symptoms with medications and maintain his sobriety, his risk to the community can 
continue to be low.”  (PSI, p.397; Tr., p.42, L.13- p.43, L.1.)  In short, the court properly considered 
Sanchez’s mental health problems, as well as his substance abuse issues. 
Sanchez’s remorse for his crimes is certainly a mitigating factor.  (See Tr., p.40, Ls.3-12), 
Nonetheless, Sanchez’s aggregate sentence of seven years, all suspended, with seven years of 
probation is not unreasonable or excessive.  Sanchez recommended an aggregate sentence of five 
years with probation.  (Tr., p.36, L.23 – p.37, L.2.)  Two additional indeterminate years – converted 
to probation – can hardly be considered excessive, especially given the fact that Sanchez’s mental 
 8 
illness and substance abuse played major roles in his crimes.  The court chose a proper way to 
protect the public by minimizing the risk that Sanchez will engage in future criminal activity due 
to those factors, yet allowing him to continue to reside in the community. 
Sanchez is, in essence, asking this Court to reweigh the matters the district court 
considered.  He has failed to show an abuse of discretion.  The district court applied the correct 
legal standards to unchallenged factual findings and exercised its discretion to impose a reasonable 
sentence.  Sanchez has failed to show error. 
 
CONCLUSION 
 
 The state respectfully requests this Court to affirm Sanchez’s convictions and sentences. 
 DATED this 20th day of May, 2021. 
 
 
        /s/  John C. McKinney 
      JOHN C. McKINNEY 
      Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 20th day of May, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
 SALLY J. COOLEY 
 DEPUTY STATE APPELLATE PUBLIC DEFENDER 
 documents@sapd.state.id.us 
 
 
 
        /s/  John C. McKinney 
      JOHN C. McKINNEY 
      Deputy Attorney General 
JCM/dd 


State v. Sanchez Respondent\u27s Brief Dckt. 48266

https://digitalcommons.law.uidaho.edu/not_reported/8062/thumbnail.jp

UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
4-1-2021 
State v. Frakes Respondent's Brief Dckt. 48287 
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IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO, 
 
 Plaintiff-Respondent, 
 
v. 
 
ELEASAR PEDROSA FRAKES, 
 
 Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
)
) 
 
No. 48287-2020 
 
Canyon County Case No.  
CR-2017-4351 
________________________ 
 
BRIEF OF RESPONDENT 
________________________ 
 
APPEAL FROM THE DISTRICT COURT OF THE THIRD JUDICIAL 
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE 
COUNTY OF CANYON 
________________________ 
 
HONORABLE THOMAS W. WHITNEY 
District Judge 
________________________ 
 
 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KALE D. GANS 
Deputy Attorney General 
Criminal Law Division 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
ATTORNEYS FOR 
PLAINTIFF-RESPONDENT 
JENNY C. SWINFORD 
Deputy State Appellate Public Defender 
322 E. Front St., Ste. 570 
Boise, Idaho  83702 
(208) 334-2712 
E-mail: documents@sapd.state.id.us 
 
 
 
 
 
 
 
 
 
 
ATTORNEY FOR 
DEFENDANT-APPELLANT 
Electronically Filed
4/1/2021 12:38 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
i 
TABLE OF CONTENTS 
 PAGE 
TABLE OF AUTHORITIES .......................................................................................................... ii 
 
STATEMENT OF THE CASE ........................................................................................................1 
 
 Nature Of The Case..............................................................................................................1 
 
 Statement Of The Facts And Course Of The Proceedings ...................................................1 
 
ISSUE ..............................................................................................................................................3 
 
ARGUMENT ...................................................................................................................................4 
 
 Frakes Fails To Show The District Court Erred By Calculating 
 Credit For Time Served Based On The Date The Bench Warrant 
 Was Served, As The Statute Requires .................................................................................4 
 
CONCLUSION ................................................................................................................................6 
 
CERTIFICATE OF SERVICE ........................................................................................................6 
 
 
 
 ii 
TABLE OF AUTHORITIES 
CASES PAGE 
State v. Barrett, 163 Idaho 449, 414 P.3d 1188 (2018) ................................................................... 5 
STATUTES 
I.C. § 18-309 ................................................................................................................................... 5 
I.C. § 19-2603 ............................................................................................................................. 4, 6 
RULES 
I.C.R. 35 .......................................................................................................................................... 2 
 
 
 
 1 
STATEMENT OF THE CASE 
Nature Of The Case 
 Eleasar Pedrosa Frakes appeals from the district court’s denial of his Rule 35 motion 
seeking credit for time served. 
 
Statement Of The Facts And Course Of The Proceedings 
 
 In May 2017, Frakes pleaded guilty to possession of methamphetamine.  (R., pp.25-26, 
29-31.)  The Canyon County district court sentenced Frakes to five years, with two years fixed, 
and placed him on probation.  (R., pp.56-57.) 
 On September 7, 2017, the state filed a petition for probation violation, alleging Frakes 
violated the terms and conditions of his probation in a variety of ways.  (R., pp.65-70.)  Frakes 
admitted to violating his probation and the court set a disposition hearing on January 8, 2018.  
(R., p.83.)  After the disposition hearing was continued to January 29, 2018, Frakes failed to 
appear.  (R., pp.84-86.)  The court issued a bench warrant for his arrest.  (R., p.87.) 
 On July 21, 2018, Frakes was arrested for committing a new crime in Ada County, where 
he stayed, incarcerated, until May 6, 2019.  (R., pp.95-96.)  On May 6, Frakes was sentenced in 
the Ada County case and the court retained jurisdiction.  (R., p.96.) 
 Following the period of retained jurisdiction, on February 3, 2020, the Ada County court 
placed Frakes on probation.  (See R., p.123.)  That same day, the bench warrant in this case, 
which had previously issued on January 29, 2019, was served on Frakes.  (R., p.102.) 
 On February 12, 2020, the district court in this case reinstated Frakes on probation, 
granting 94 days of credit for the “84 days served prior to January 29, 2018 and 10 days served 
from February 3, 2020 to February 12, 2020.”  (R., pp.106-07, 123.) 
 
 2 
 Frakes subsequently filed a Rule 35 motion for credit for time served.  (R., pp.109-12, 
122-25.)  In it, he sought additional credit for the 561 days he was incarcerated in Ada County 
after the bench warrant issued, but before it was served: 
It was indisputably unjust for the Ada County Sheriff to choose not to serve the 
January 29, 2018 Bench Warrant issued in this matter upon Defendant once he 
came into the Sheriff’s custody on July 21, 2018.  Additionally, it is impossible to 
argue that the Ada County Sheriff did not now about the Bench Warrant nor that 
they could not have discovered the existence of the Bench Warrant.  Reasonably 
speaking, they could have—and should have—served the Bench Warrant in this 
matter upon Defendant on July 22, 2018. 
 
(R., p.111.) 
 The district court denied Frakes’s motion after concluding that it could not grant credit 
for time predating the service of the bench warrant: 
[F]irst of all, let me say the motion is denied. And it’s denied because I don’t 
think I have the authority to give him that credit in this case because the warrant 
was not, in fact, served.  I can’t make the Ada County Sheriff’s Office serve the 
warrant on him.  You know, even if you had filed a motion right away saying, hey, 
he’s not getting credit over here, I just don’t believe I have the authority to make 
them do that…. 
 
So, you know, those—I try to make—within the confines where the legislature 
gives me discretion and the statute or the Supreme Court gives me discretion in 
the rule, I do try to consider that and make the judgment fair.  But in this 
particular case on this motion under [Rule] 35(c) I don’t think I have that 
discretion. 
 
(Tr., p.20, L.25 – p.22, L.11; R, p.128.) 
 Frakes timely appealed.  (R., pp.130-33.) 
 
 3 
ISSUE 
 
Frakes states the issue on appeal as: 
 
Did the district court err when it denied Mr. Frakes’s motion for credit for time served? 
 
(Appellant’s brief, p.5.) 
 
 The state rephrases the issue as: 
 
Has Frakes failed to show the district court erred by calculating credit for time served based on 
the date the bench warrant was served, as the statute requires? 
 
 
 
 4 
ARGUMENT 
 
Frakes Fails To Show The District Court Erred By Calculating Credit For Time Served Based On 
The Date The Bench Warrant Was Served, As The Statute Requires  
 
 
Frakes argues the district court erred by not granting him 561 days “credit for time served 
for his period of incarceration when the Ada County Sheriff’s Office” did not “serve the 
outstanding January 2018 warrant.”  (Appellant’s brief, pp.6, 8.)  But Frakes, in effect, concedes 
that he is not entitled to credit under the plain application of the controlling statute.  He makes 
his argument “mindful of the relevant statute’s requirement of service of the warrant” 
(Appellant’s brief, p.6), which goes as follows: 
The defendant shall receive credit for time served from the date of service of a 
bench warrant issued by the court after a finding of probable cause to believe the 
defendant has violated a condition of probation, for any time served following an 
arrest of the defendant pursuant to section 20-227, Idaho Code, and for any time 
served as a condition of probation under the withheld judgment or suspended 
sentence. 
 
I.C. § 19-2603 (emphasis added). 
The application of Section 19-2603 here is straightforward.  The bench warrant was 
served on February 3, 2020 (R., p.102), which means Frakes was only entitled to credit from that 
date.  The district court, bound by the statute, therefore correctly concluded it did not have 
authority to grant credit for the 561 days prior to that, “because the warrant was not, in fact, 
served.”  (Tr., p.20, L.24 – p.21, L.3.)  Frakes fails to show any error. 
Despite the plain statutory language foreclosing his claim, Frakes contends he should still 
be “entitled to credit for this time as a matter of fairness,” or as otherwise called for by the 
“spirit” of the statute.  (Appellant’s brief, pp.7-8.)  He cites no controlling authority, however, 
that has construed the statute this way.  (See Appellant’s brief.)  Frakes simply cites a dissent 
 
 5 
from State v. Barrett, 163 Idaho 449, 455, 414 P.3d 1188, 1194 (2018), which, along similar lines 
as Frakes, disfavored the majority’s interpretation of Section 18-309.  (“Under the majority’s 
approach, the State is allowed to serve a Hold Notice Request on an incarcerated defendant, 
subsequently wait for the defendant’s initial appearance on the new charges—in this case, a time 
period of forty-seven days—and then serve the arrest warrant.”)  The majority in Barrett, on the 
other hand, concluded the district court in that case correctly calculated credit for time served 
from “the date the arrest warrant was served.”  Id. at 451, 454, 414 P.3d at 1190, 1193.  Frakes 
therefore fails to show that, under the controlling statute or under Barrett, the outcome here 
would be any different. 
Even if Frakes’s “matter of fairness” approach was the correct legal standard, he fails to 
show it would apply here.  He claims that the purported “facts of this case” justify contravening 
the plain text of the statute; specifically, Frakes alleges “the only reason that [he] did not receive 
credit for this time was due to [the] Ada County Sheriff’s Office[’]s ‘willful failure’ to serve the 
outstanding January 2018 bench warrant.”  (Appellant’s brief, pp.1, 6 (quoting R., p.124).)   
But even assuming such a “willful failure” could ever justify ignoring the statute, Frakes 
fails to show that is what happened here.  The district court made no factual findings as to why 
the warrant was not served.  (See Tr., pp. 16-23.)  Nothing in this record explains why the 
warrant wasn’t served, much less shows the delay was intentional or knowing.  (See R.)  Frakes 
assumes on appeal that the Ada County Sheriff’s Office “chose not to” serve the warrant, and 
that it “knowingly did not serve the warrant,” but that is pure speculation.  (Appellant’s brief, 
pp.1, 4.)  Even Frakes admitted this point below, refuting his own claim about the “indisputably 
unjust” delay with a more accurate concession: “it is important to keep in mind that there may be 
 
 6 
some reasonable explanations for a delay in serving a Bench Warrant on a Defendant.”  (R., 
p.111.) 
Thus, even assuming a district court could rewrite or otherwise ignore the statute based 
on a knowing or intentional delay (which the state disputes), Frakes has failed to assemble a 
record on appeal showing such a delay.  Under the plain language of Section 19-2603, Frakes is 
not entitled to credit for time served prior to the service of the arrest warrant.  The district court 
properly applied the statute and denied the motion, and Frakes fails to show any error. 
 
CONCLUSION 
 
 The state respectfully requests this Court affirm the district court’s denial of Frakes’s 
Rule 35 motion. 
 DATED this 1st day of April, 2021. 
 
        
   /s/  Kale D. Gans 
 KALE D. GANS 
 Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
 I HEREBY CERTIFY that I have this 1st day of April, 2021, served a true and correct 
copy of the foregoing BRIEF OF RESPONDENT to the attorney listed below by means of iCourt 
File and Serve: 
 
 JENNY C. SWINFORD 
 DEPUTY STATE APPELLATE PUBLIC DEFENDER 
 documents@sapd.state.id.us 
 
 
   /s/  Kale D. Gans 
 KALE D. GANS  
Deputy Attorney General 
KDG/dd 


State v. Frakes Respondent\u27s Brief Dckt. 48287

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State v. Chavez Appellant's Brief Dckt. 48304 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
KILEY A. HEFFNER
Deputy State Appellate Public Defender
I.S.B. #10999
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48304-2020
Plaintiff-Respondent, )
) BANNOCK COUNTY NO. CR03-19-12662
v. )
)
ERIC CHAVEZ, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
After Eric Chavez pled guilty to possession of methamphetamine, the district court
sentenced him to seven years, with five years fixed, and retained jurisdiction. The district court
later relinquished jurisdiction and executed his seven-year sentence. On appeal, Mr. Chavez
argues that the district court abused its discretion by imposing an excessive sentence.
Statement of the Facts & Course of Proceedings
Officers were called to a Taco Bell parking lot to investigate a reported disturbance
involving Mr. Chavez. (PSI, p.4; R., p.12.) The reporting party informed the officers that
Electronically Filed
3/10/2021 2:56 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2
Mr. Chavez could be found at an apartment complex, and the officers headed there to speak with
him. (PSI, pp.4-5; R., p.12.) When one of the officers arrived at the apartment complex, she saw
Mr. Chavez and another man standing on the stoop, and called out to them. (PSI, p.5; R., p.12.)
Mr. Chavez began to walk away from the officers. (PSI, p.5; R., p.12.) When the officer again
called out to him, he turned and ran. (PSI, p.5; R., p.12.) Mr. Chavez was eventually arrested for
resisting and obstructing officers. (PSI, p.5; R., p.12.) After being advised of his Miranda1 rights,
officers searched him, and discovered a syringe containing methamphetamine residue in his pant
pocket. (PSI, p.5; R., p.12.)
The State filed a complaint against Mr. Chavez for possession of methamphetamine in
November 2019. (R., pp.8-9.) After he waived his preliminary hearing, the magistrate judge
bound him over to district court, and he was charged by information with possession of
methamphetamine. (R., pp.33-34, 36-37.) The State also charged Mr. Chavez with being a
persistent violator of the law. (R., pp.38-39.) Pursuant to a plea agreement, Mr. Chavez pled
guilty to possession of methamphetamine, and the State dismissed the persistent violator
enhancement. (R., pp.77-78; 2/3/20 Tr.,2 p.5, L.7 – p.8, L.25.)
A sentencing hearing was held in May 2020. (See 5/4/20 Tr.) At that hearing, the State
recommended that the district court sentence Mr. Chavez to five years, with two years fixed, and
retain jurisdiction (“a rider”). (5/4/20 Tr., p.13, Ls.16-17, p.14, Ls.10-14.) Defense counsel
recommended that the district court put him on probation. (5/4/20 Tr., p.14, Ls.19-20.) The
1 Miranda v. Arizona, 384 U.S. 436 (1966).
2 The Reporter’s Transcript consists of two separately-paginated transcripts in one electronic
document (ten pages of the overall document). Each will be cited with reference to its internal
pagination. The first transcript, cited as “2/3/20 Tr.,” contains the change of plea hearing held on
February 3, 2020 (pages five to nine). The second transcript, cited as “5/4/20 Tr.,” contains the
sentencing hearing held on May 4, 2020 (pages ten to twenty-three).
3
district court exceeded even the State’s recommendation, and sentenced Mr. Chavez to seven
years, with five years fixed, and retained jurisdiction. (5/4/20 Tr., p.17, Ls.8-14; R., pp.91-93.)
A few months later, Mr. Chavez was removed from the rider program for a physical
altercation with another inmate. (PSI, p.44.) The district court relinquished jurisdiction.
(R., pp.96-97.) Mr. Chavez appealed timely from the relinquishment order. (R., pp.96-97.)
ISSUES
Did the district court abuse its discretion when it imposed an excessive sentence of seven years,
with five years fixed, upon Mr. Chavez?
ARGUMENT
The District Court Abused Its Discretion When It Imposed An Excessive Sentence of Seven
Years, With Five Years Fixed, Upon Mr. Chavez
Mr. Chavez asserts that, given any view of the facts, his sentence of seven years, with
five years fixed, is excessive. Where a defendant contends that the sentencing court imposed an
excessively harsh sentence, the appellate court will conduct an independent review of the record
giving consideration to the nature of the offense, the character of the offender, and the protection
of the public interest. See State v. Reinke, 103 Idaho 771 (Ct. App. 1982).
The Idaho Supreme Court has held that, “‘[w]here a sentence is within statutory limits, an
appellant has the burden of showing a clear abuse of discretion on the part of the court imposing
the sentence.’” State v. Jackson, 130 Idaho 293, 294 (1997) (quoting State v. Cotton, 100 Idaho
573, 577 (1979)). Mr. Chavez does not allege that his sentence exceeds the statutory maximum.
Accordingly, in order to show an abuse of discretion, he must show that in light of the governing
criteria, the sentence was excessive considering any view of the facts. Id. The governing criteria
or objectives of criminal punishment are: (1) protection of society; (2) deterrence of the
4
individual and the public generally; (3) the possibility of rehabilitation; and (4) punishment or
retribution for wrongdoing. Id.
Appellate courts use a four-part test for determining whether a district court abused its
discretion: Whether the trial court: (1) correctly perceived the issue as one of discretion; (2)
acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards
applicable to the specific choices available to it; and (4) reached its decision by the exercise of
reason. Lunneborg v. My Fun Life, 163 Idaho 856, 863 (2018).
Here, Mr. Chavez asserts the district court abused its discretion by imposing an excessive
sentence under any reasonable view of the facts. Specifically, he contends the district court
should have sentenced him to a lesser term of imprisonment in light of the mitigating factors,
including his troubled childhood, his substance abuse and its longstanding impact on his life, his
amenability to treatment, and his mental health issues.
 Mr. Chavez grew up with two alcoholic parents. (PSI, p.12.) His
father eventually passed away from alcohol abuse when he was around eleven or twelve years-
old. (PSI, p.11.) He stated he was first arrested at  for burglary, and reported being in
and out of detention, on juvenile probation, and in group homes or foster care, until the
 (PSI, pp.11, 18.) The Court of Appeals has recognized that a defendant’s “extremely
troubled childhood is a factor that bears consideration at sentencing.” State v. Williams, 135
Idaho 618, 620 (Ct. App. 2001). Mr. Chavez stated that he was either removed from his mother’s
custody or kicked out of the house at . (PSI, pp.11, 18.) He reported that he joined a
gang when he was . (PSI, p.12.) To his credit, he dropped out of gang life in
2009, but he still has problems due to the tattoos on his body, which are easily recognized by
other gang members. (PSI, p.12.) He noted that one of his brothers died in California due to gang
5
violence. (PSI, p.12.) Mr. Chavez dropped out of high school after the eleventh grade because he
was in foster care, and ran away from home. (PSI, p.14.) He stated that he was shot at three times
within a few days, and decided to leave California for Idaho to save his life. (PSI, p.13.)
Mr. Chavez has struggled with drug and alcohol abuse from a young age. The impact of
substance abuse on the defendant’s criminal conduct is “a proper consideration in mitigation of
punishment upon sentencing.” State v. Osborn, 102 Idaho 405, 414 n.5 (1981). He reported that
he first drank alcohol and used marijuana at . (PSI, pp.15-16.) He stated that he first
used inhalants when he was eleven or twelve, and began using methamphetamine daily at
 (PSI, pp.15-16.) He previously completed substance abuse treatment as a juvenile at
the Cinnamon Hills Youth Crisis Center in 1997. (PSI, p.16.) The Global Appraisal of Individual
Needs (“GAIN”) evaluator diagnosed Mr. Chavez with Severe Stimulant Use Disorder.
(PSI, p.22.) Mr. Chavez noted that his longest period of sobriety was fifteen months,3 and he
relapsed a few days prior to committing the instant offense. (PSI, p.16.) He reported that he has
quit using substances and is 100% ready to remain abstinent. (PSI, p.28.) He acknowledged that
treatment is most needed for methamphetamine. (PSI, p.22.)
Mr. Chavez’s mental health issues also stand in favor of mitigation. “[T]he defendant’s
mental condition is simply one of the factors that must be considered and weighed by the court at
sentencing.” State v. Delling, 152 Idaho 122, 132 (2011). Mr. Chavez reported that he was
diagnosed with anxiety and depression in prison. (PSI, pp.15, 21.) He recalled receiving mental
health treatment as a juvenile, and said he has taken medication off and on over the years
because of the side effects. (PSI, p.15.) His mental health examination report concluded he
3 There is conflicting information in the record regarding the length of Mr. Chavez’s sobriety.
Page sixteen of the PSI states that he was sober for fifteen months, while page seventeen says he
was sober for two and a half years.
6
presents with serious mental health problems and recommended individual or group therapy,
psychiatric medication evaluation, management, and education. (PSI, pp.17-18, 36.) His GAIN
evaluator diagnosed him with Generalized Anxiety Disorder, Posttraumatic Stress Disorder
(“PTSD”) or Acute Stress Disorder or other disorder of extreme stress, and Attention Deficit
Hyperactivity Disorder (“ADHD”). (PSI, pp.22, 34.).
Despite Mr. Chavez’s troubled childhood, serious substance abuse, and mental health
issues, he has demonstrated a willingness to try and change his behavior and get treatment. He
removed himself from gang life, and moved away from California in order to create a better life
for himself. Mr. Chavez has acknowledged that his substance abuse has caused problems in his
life, and he is ready to remain sober.
Proper consideration of these mitigating factors supported a more lenient sentence of five
years, with two years fixed. In light of these facts, Mr. Chavez submits that the district court did
not exercise reason, and thus abused its discretion, by sentencing him to serve seven years, with
five years fixed.
CONCLUSION
Mr. Chavez respectfully requests that this Court reduce his sentence as it deems
appropriate. Alternatively, he respectfully requests that his case be remanded to the district court
for a new sentencing hearing.
DATED this 10th day of March, 2021.
/s/ Kiley A. Heffner
KILEY A. HEFFNER
Deputy State Appellate Public Defender
7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 10th day of March, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Kylie M. Fourtner
KYLIE M. FOURTNER
Administrative Assistant
KAH/kmf


State v. Chavez Appellant\u27s Brief Dckt. 48304

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State v. Danca Appellant's Brief Dckt. 48316 
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1
ERIC D. FREDERICKSEN
State Appellate Public Defender
I.S.B. #6555
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
I.S.B. #6406
322 E. Front Street, Suite 570
Boise, Idaho 83702
Phone: (208) 334-2712
Fax: (208) 334-2985
E-mail: documents@sapd.state.id.us
IN THE SUPREME COURT OF THE STATE OF IDAHO
STATE OF IDAHO, )
) NO. 48316-2020
Plaintiff-Respondent, )
) TWIN FALLS COUNTY NO. CR42-17-1710
v. )
)
JOSEPH ALEXANDER DANCA, ) APPELLANT’S BRIEF
)
Defendant-Appellant. )
______________________________)
STATEMENT OF THE CASE
Nature of the Case
Joseph Alexander Danca appeals from the district court’s order revoking his probation
and executing a sentence of three years, with one year determinate, for battery upon certain
personnel.  He asserts that the district court abused its discretion by revoking his probation and
executing the underlying sentence.
Statement of the Facts & Course of Proceedings
On April 5, 2017, Mr. Danca was charged with battery on a police officer.  (R., p.23.)  He
pleaded guilty and the district court imposed a unified sentence of three years, with one year
Electronically Filed
3/15/2021 8:58 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Murriah Clifton, Deputy Clerk
2
determinate, and the court suspended the sentence and placed Mr. Danca on probation.
(R., p.67.)
On May 22, 2020, the State filed a motion to revoke probation and issue a warrant,
alleging that Mr. Danca violated his probation by committing a DUI, by consuming alcohol on
two occasions, and by failing to appear for drug testing.  (R., p.89.)  Mr. Danca admitted that
there was probable cause to believe he committed the DUI and admitted the other allegations.
(R., p.109.)  The district court revoked Mr. Danca’s probation and executed the underlying
sentence.  (R., p.111.)  Mr. Danca appealed.  (R., p.115.)
ISSUE
Did the district court abuse its discretion when it revoked Mr. Danca’s probation and executed
the underlying sentence of three years, with one year determinate.
ARGUMENT
The District Court Abused Its Discretion When It Revoked Mr. Danca’s Probation And Executed
The Underlying Sentence Of Three Years, With One Year Determinate
The district court is empowered by statute to revoke a defendant’s probation under
certain circumstances. I.C. §§ 19-2602, -2603, 20-222. The Court uses a two-step analysis to
review a probation revocation proceeding. State v. Sanchez, 149 Idaho 102, 105 (2009). First, the
Court determines “whether the defendant violated the terms of his probation.” Id. Second, “[i]f it
is determined that the defendant has in fact violated the terms of his probation,” the Court
examines “what should be the consequences of that violation.” Id. The determination of a
probation violation and the determination of the consequences, if any, are separate analyses. Id.
Here, Mr. Danca does not challenge his admission to violating his probation. “When a
probationer admits to a direct violation of her probation agreement, no further inquiry into the
3
question is required.” State v. Peterson, 123 Idaho 49, 50 (Ct. App. 1992). Rather, Mr. Danca
submits that the district court abused its discretion by revoking his probation.
“After a probation violation has been proven, the decision to revoke probation and
pronounce sentence lies within the sound discretion of the trial court.” State v. Roy, 113 Idaho
388, 392 (Ct. App. 1987). “A judge cannot revoke probation arbitrarily,” however. State v. Lee,
116 Idaho 38, 40 (Ct. App. 1989). “The purpose of probation is to give the defendant an
opportunity to be rehabilitated under proper control and supervision.” State v. Mummert, 98
Idaho 452, 454 (1977). “In determining whether to revoke probation a court must consider
whether probation is meeting the objective of rehabilitation while also providing adequate
protection for society.” State v. Upton, 127 Idaho 274, 275 (Ct. App. 1995). The court may
consider the defendant’s conduct before and during probation. State v. Roy, 113 Idaho 388, 392
(Ct. App. 1987).  Mr. Danca submits that the district court abused its discretion by revoking his
probation.
At the disposition hearing, held on September 15, 2020, counsel for Mr. Danca noted that
Mr. Danca “would have been eligible - or he would have been scheduled to be released and his
probation completed October 26.  Next month would have been the end of his probation.”
(Tr., p.9, Ls.1-6.)  Counsel recognized that Mr. Danca had a problem with alcohol “but there is
also an underlying mental health issue is addition to many physical health ailments contributing
to lots of hospitalizations and health issues along the way.”  (Tr., p.9, Ls.7-15.)  Counsel made
the following recommendation to the court:  “I guess I would be looking at the Court’s
discretion, if – if Your Honor is – is looking at imposition, I would ask that the sentence be
reduced a reasonable amount of time, and perhaps credit for time served and let him be released,
or some shorter period of time than the remaining tail on his sentence.”  (Tr., p.9, Ls.16-21.)
4
Considering that Mr. Danca was so close to completing his period of probation, that he
recognized his alcohol abuse problem and his mental health issues, Mr. Danca submits that the
district court abused its discretion by revoking probation and by executing his underlying
sentence without modification.
CONCLUSION
Mr. Danca respectfully requests that the court’s order revoking probation be vacate and
that his case be remanded to the district court for a new disposition hearing.
DATED this 15th day of March, 2021.
/s/ Justin M. Curtis
JUSTIN M. CURTIS
Deputy State Appellate Public Defender
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 15th day of March, 2021, I caused a true and correct
copy of the foregoing APPELLANT’S BRIEF to be served as follows:
KENNETH K. JORGENSEN
DEPUTY ATTORNEY GENERAL
E-Service: ecf@ag.idaho.gov
/s/ Evan A. Smith
EVAN A. SMITH
Administrative Assistant
JMC/eas


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"State v. Hewlett Respondent's Brief Dckt. 48352" (2021). Not Reported. 7092. 
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LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
COLLEEN D. ZAHN 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P.O. Box 83720 
Boise, Idaho 83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
v. 
 
ROCKY LEE HEWLETT, 
 
          Defendant-Appellant. 
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          NO. 48352-2020 
 
          Ada County Case No.  
          CR01-18-51823 
 
           
          RESPONDENT'S BRIEF 
 
     
      Issue 
Has Hewlett failed to establish that the district court abused its discretion by denying his 
Rule 35 motion for a reduction of sentence? 
 
 
Hewlett Has Failed To Establish That The District Court Abused Its Discretion By Denying His 
Rule 35 Motion For Reduction Of Sentence 
 
 Hewlett pled guilty to aggravated battery and the district court imposed a unified 
sentence of 10 years, with three years fixed.  (R., pp. 99-102.)  Hewlett filed a timely Rule 35 
motion for a reduction of sentence, which the district court denied.  (R., pp. 103-05; Aug., pp. 
Electronically Filed
5/7/2021 4:35 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
2 
27-32.)  Hewlett filed a notice of appeal timely only from the district court’s order denying his 
Rule 35 motion.  (R., pp. 156-59.)   
Hewlett asserts that the district court abused its discretion by denying his Rule 35 motion 
for a reduction of sentence in light of the COVID-19 pandemic and his “pre-existing” epilepsy.  
(Appellant’s brief, pp. 2, 4-8.)  Hewlett has failed to establish an abuse of discretion.   
If a sentence is within statutory limits, a Rule 35 motion is merely a request for leniency, 
which is reviewed for an abuse of discretion.  State v. Brunet, 155 Idaho 724, 729, 316 P.3d 640, 
645 (2013) (citing State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007)).  A Rule 35 
motion “does not function as an appeal of a sentence.”  Id.  Thus, “[w]hen presenting a Rule 35 
motion, the defendant must show that the sentence is excessive in light of new or additional 
information subsequently provided to the district court in support of the Rule 35 motion.”  Id.  
Absent the presentation of new evidence, “[a]n appeal from the denial of a Rule 35 motion 
cannot be used as a vehicle to review the underlying sentence.”  Id. at 729-30, 316 P.3d at 645–
46; State v. Carter, 157 Idaho 900, 903, 341 P.3d 1269, 1272 (Ct. App. 2014). 
Hewlett argues that the district court should have granted his Rule 35 motion because the 
“risk of spread” of the COVID-19 virus may be greater in a correctional facility, he has epilepsy, 
and “‘any illness, including respiratory illnesses and those causing fevers, can cause seizures to 
unmask and occur in a person who otherwise has their epilepsy under control.’”  (Appellant’s 
brief, pp. 6-7 (citing R., p. 147).)  It is common knowledge that viruses may spread at an 
increased rate in congregate environments, such as correctional facilities.  As such, it is not 
“new” information that the COVID-19 virus, too, may spread at an increased rate in a 
correctional facility.  On appeal, Hewlett acknowledges that his epilepsy was a “pre-existing 
medical condition” (Appellant’s brief, pp. 1-2), of which the district court was aware at the time 
3 
of sentencing (Tr., p. 68, Ls. 17-23; p. 74, Ls. 14-21; PSI, p. 14; Aug. Conf. Exhibits, pp. 8-9).  
That a person with epilepsy has an increased risk of seizures occurring when they have “any 
illness” is information that would have been available at the time of sentencing; it is not “new” 
information that, since the COVID-19 virus is an illness, it may increase Hewlett’s risk of 
seizures.  Because Hewlett presented no new evidence in support of his Rule 35 motion, he failed 
to demonstrate in the motion that his sentence was excessive.  Having failed to make such a 
showing, he has failed to establish any basis for reversal of the district court’s order denying his 
Rule 35 motion for reduction of sentence.   
Even if the information Hewlett submitted were considered “new,” Hewlett has failed to 
show that he was entitled to a reduction of sentence.  In its order denying Hewlett’s Rule 35 
motion, the district court articulated the correct legal standards applicable to its decision and also 
set forth in detail its reasons for denying the motion.  (Aug., pp. 27-31.)  The state submits that 
Hewlett has failed to establish an abuse of discretion, for reasons more fully set forth in the 
district court’s Memorandum Decision and Order Re: Defendant’s Motion for Reconsideration 
of Sentence, which the state adopts as its argument on appeal.  (Appendix A.)    
 
4 
Conclusion 
 The state respectfully requests this Court to affirm the district court’s order denying 
Hewlett’s Rule 35 motion for reduction of sentence. 
       
 DATED this 7th day of May, 2021. 
 
 
      _/s/ Kenneth K. Jorgensen________ 
      KENNETH K. JORGENSEN 
      Deputy Attorney General 
 
      VICTORIA RUTLEDGE 
      Paralegal 
 
 
CERTIFICATE OF SERVICE 
 
 I HEREBY CERTIFY that I have this 7th day of May, 2021, served a true and correct 
copy of the attached RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
KIMBERLY A. COSTER  
  DEPUTY STATE APPELLATE PUBLIC DEFENDER 
  documents@sapd.state.id.us.  
 
 
      _/s/ Kenneth K. Jorgensen________ 
     KENNETH K. JORGENSEN 
Deputy Attorney General    
  
 
 
 
 
 
 
 
 
 
 
 
 
APPENDIX A 
09/01/2020 16:25:11
Pataro, Kathy
Filed:
Fourth Judicial District, Ada County
Phil McGrane, Clerk of the Court
By: Deputy Clerk -
Aug p.27
IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF 
THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA 
STATE OF IDAHO, 
Plaintiff, 
vs. 
ROCKY L. HEWLETT, 
Defendant. 
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Case No. CR0l-18-51823 
MEMORANDUM DECISION AND ORDER 
RE: DEFENDANT'S MOTION FOR 
RECONSIDERATION OF SENTENCE 
This matter is before the Court on Defendant Rocky L. Hewlett's, March 26, 2020 Motion 
for Reconsideration of Sentence filed pursuant to Idaho Criminal Rule of Procedure Rule 35. 
Defendant Hewlett requests leniency. 
ICR Rule 35(a) provides: that the court may correct a sentence that is illegal from the face 
of the record at any time. 
ICR Rule 35(b) provides: 
Within 120 days of the entry of the judgment imposing sentence or order releasing 
retained jurisdiction, a motion may be filed to correct a sentence that has been 
imposed in an illegal manner or to reduce a sentence and the court may correct or 
reduce the sentence. The court may also reduce a sentence on revocation of 
probation or on motion made within 14 days after the filing of the order revoking 
probation. Motions are considered and determined by the court without additional 
testimony and without oral argument, unless otherwise ordered. A defendant may 
only file one motion seeking a reduction of sentence. 
A motion for reduction of sentence under I.C.R. 35(b) is essentially a plea for leniency, 
addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P .3d 23, 
24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct.App.1989). In presenting a 
MEMORANDUM DECISION AND ORDER RE: DEFENDANT'S MOTION FOR 
RECONSIDERATION OF SENTENCE - 1 
Page 205 
Aug p.28
Rule 35 motion, the defendant must show that the sentence is excessive in light of new or additional 
information subsequently provided to the district court in support of the motion. State v. Huffman, 
144 Idaho 201,203, 159 P.3d 838, 840 (2007). 
The decision whether to incarcerate a defendant and the length of a sentence involves the 
consideration of the defendant, his or her background, the circumstances of the offense, and a 
careful weighing of society's interests. In order to accomplish the goal of the protection of society, 
the Court considers a number of broad factors in fixing a sentence which generally encompass the 
statutory guidelines. LC. § 19-2521. The Court evaluates whether the imposition of a penalty 
reflecting the seriousness of the offense is necessary, the possibility of deterrence of the defendant 
and others similarly minded, and the possibility of rehabilitation. See, e.g., State v. Burnight, 132 
Idaho 654, 978 P.2d 214 (1999); State v. Stover, 140 Idaho 927, 104 P.3d 969 (2005); State v. 
Toohill, 103 Idaho 565, 650 P.2d 707 (Ct. App. 1982). All of the facts and circumstances of the 
crime and the offender are weighed. The Idaho Supreme Court has affirmed the constitutionality 
of Idaho's sentencing structure which permits a judge to weigh the facts and impose a sentence 
within the range specified under the applicable statute. State v. Stover, supra. 
This Court imposed the Judgment of Conviction and Commitment on December 2, 2019. 
This Court imposed a unified sentence often (10) years, with the first three (3) years fixed and the 
remaining seven (7) years indeterminate. 
Defendant's motion is timely because Defendant filed his motion within 120 days of 
December 2, 2019. The sentence was based on the Court's consideration and careful weighing of 
the factors discussed herein. 
In evaluating Defendant's request for leniency, the Court has re-reviewed the record before 
it including, without limitation, the presentence investigation ("PSI") report. The Court has also 
MEMORANDUM DECISION AND ORDER RE: DEFENDANT'S MOTION FOR 
RECONSIDERATION OF SENTENCE - 2 
Page 206 
Aug p.29
reviewed each of Defendant's Memorandum and Declarations submitted in Support of his motion. 
Additionally, the Court has reviewed and considered the arguments of counsel at sentencing and 
the Court's articulation of the reasons for imposition of sentence applying the standards set forth 
in State v. Toohill, 103 Idaho 565, 560 P.2d 707 (Ct. App. 1982). 
Defendant does not challenge the lawfulness of the sentence. The unified sentence of ten 
years is within the statutory limit of ten years for persons convicted aggravated battery. Rather, 
Defendant asks for leniency. 
In imposing sentence, the Court applied the standards set forth in State v. Toohill, 103 Idaho 
565, 560 P.2d 707 (Ct. App. 1982). The Court considered the nature of the offense, the 
Defendant's character and history, condition and attitude, the material recommendations of the 
presentence investigation report, and the domestic violence evaluation. 
Having re-reviewed the record presented at time of sentencing, and for the reasons 
articulated on the record at the time of sentencing, the Court is convinced the sentence is 
appropriate based upon the Unified Sentencing Law of the state of Idaho and the goals of 
sentencing as articulated by the Idaho Appellate Courts and in Idaho Code § 19-2521. 
The Defendant has raised two principal issues to support his request for leniency. First, 
Defendant asks the Court to compare the sentence it imposed on the Defendant in relation to the 
sentence imposed on the co-defendant. Second, the Defendant cites to the danger COVID-19 
presents to inmates at the ISCI who are health compromised in manner that renders them more 
susceptible to critical if not fatal illness. 
Addressing the first issue, the Court exercised its discretion in each case based on the facts 
presented in each case. Among other matters, the Court's sentence here was based upon the nature 
of the subject offense, the overall circumstances of the crime, the Defendant's involvement in it, 
MEMORANDUM DECISION AND ORDER RE: DEFENDANT'S MOTION FOR 
RECONSIDERATION OF SENTENCE - 3 
Page 207 
Aug p.30
the Defendant's minimization of his role in the current crime, the Defendant's significant criminal 
history, the Defendant's failure to appear for sentencing, and the Defendant's engagement in 
criminal activity while awaiting sentencing. 
Based on the record presented, the Defendant presents an ongoing and real danger to re-
offend and thereby endangers the public. Previous sentences have not prevented Defendant from 
engaging in criminal activity. The Court continues to believe the significant sentence imposed is 
necessary to protect the public, provide a sanction that will hopefully deter the Defendant from 
engaging in criminal activity in the future, provide a deterrence for others and provide an 
appropriate punishment for wrongdoing. 
Among the critical facts upon which this Court relied was the fact that the Defendant 
accused the victim in this case of having money belonging to the Defendant's friend. When co-
defendant McClure came to collect money from the Defendant's friend, the Defendant pointed to 
the victim, Mr. Bright, who did not in fact have money belonging to the Defendant's friend. 
Defendant was aware that Mr. Bright did not have and did not owe money to Defendant's friend. 
Mr. McClure then physically attacked Mr. Bright and was aided by the Defendant. Defendant's 
version of the altercation changed multiple times, none of which aligned with the victim's rendition 
or the video of the altercation. The Defendant then departed from the scene and was found with 
contraband in his vehicle. On the facts presented the Court believed the Defendant's criminal 
conduct justified the sentence imposed. The Court separately evaluated the criminal conduct of 
the co-defendant and found the sentence appropriate under the Toohill standards. On balance, this 
Court felt Defendant was more culpable than his co-defendant. In addition, the Defendant's 
criminal history, his attempt to minimize his role and his conduct while on release, all influenced 
the Court's exercise of its discretion. 
MEMORANDUM DECISION AND ORDER RE: DEFENDANT'S MOTION FOR 
RECONSIDERATION OF SENTENCE - 4 
Page 208 
Signed: 9/1/2020 08:37 AM
Aug p.31
As to COVID-19, the Court accepts as fact that COVID-19 presents more danger to persons 
afflicted with certain diseases, and epilepsy may be one of those. It would be a mistake to 
underestimate the scope of those in particular danger. It would also be a mistake to ignore the 
goals of sentencing because the Defendant's medical condition puts him at greater risk than some 
at equal or lesser risk than other inmates. Based on the record, the Court cannot find that the 
Defendant is so acutely at risk, that he should be excused from an otherwise lawful and appropriate 
sentence. In short, the Court cannot find that Defendant's medical condition justifies leniency. 
The record herein is fully developed. The Court does not require additional testimony or 
oral argument. Based on the entirety of the record presented, this Court, in its discretion, finds the 
Defendant has not shown an entitlement to leniency with the respect to the sentence this Court 
lawfully imposed. Defendant's Motion for Reconsideration of Sentence is, therefore, DENIED. 
IT IS SO ORDERED. 
DATED: -------
{{zfo "- "- m...d---
PATRICK .r MILLER 
District Judge 
MEMORANDUM DECISION AND ORDER RE: DEFENDANT'S MOTION FOR 
RECONSIDERATION OF SENTENCE - 5 
Page 209 


State v. Hewlett Respondent\u27s Brief Dckt. 48352

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Not Reported Idaho Supreme Court Records & Briefs 
9-16-2021 
State v. Huston Appellant's Reply Brief Dckt. 48367 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
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"State v. Huston Appellant's Reply Brief Dckt. 48367" (2021). Not Reported. 7099. 
https://digitalcommons.law.uidaho.edu/not_reported/7099 
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IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO, 
 
 Plaintiff-Appellant, 
 
v. 
 
DACE S. HUSTON, 
 
 Defendant-Respondent. 
 
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No. 48367-2020 
 
Gem County Case No.  
CR23-19-182 
 
 
 
________________________ 
 
REPLY BRIEF OF APPELLANT 
________________________ 
 
APPEAL FROM THE DISTRICT COURT OF THE THIRD JUDICIAL 
DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE 
COUNTY OF GEM 
________________________ 
 
HONORABLE TYLER D. SMITH, Magistrate Judge 
HONORABLE D. DUFF McKEE, District Judge 
________________________ 
 
 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
ANDREW V. WAKE 
Deputy Attorney General 
Criminal Law Division 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
E-mail: ecf@ag.idaho.gov 
 
ATTORNEYS FOR 
PLAINTIFF-APPELLANT 
MARK P. COONTS 
Gem County Public Defender 
323 E. Main St. 
Emmett, Idaho  83617 
(208) 365-4548 
E-mail: gempublicdefender@gmail.com 
 
 
 
 
 
 
 
 
 
 
ATTORNEY FOR 
DEFENDANT-RESPONDENT 
Electronically Filed
9/16/2021 11:27 AM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
i 
TABLE OF CONTENTS 
 PAGE 
TABLE OF AUTHORITIES .......................................................................................................... ii 
 
ARGUMENT ...................................................................................................................................1 
 
 The District Court Erred On Intermediate Appeal By 
 Reversing The Magistrate Court’s Denial Of Huston’s 
 Motion To Suppress .............................................................................................................1 
 
 A. Introduction ..............................................................................................................1 
 
 B. The Magistrate Court Correctly Determined Huston 
  Was Not Detained Before Officer McIntosh Acquired 
  Reasonable Suspicion Of Criminal Conduct ...........................................................1 
 
 C. In The Alternative, Any Brief Detention Was Justified 
  By The Community Caretaking Function ................................................................3 
 
CONCLUSION ................................................................................................................................7 
 
CERTIFICATE OF SERVICE ........................................................................................................7 
 
 
 
 ii 
TABLE OF AUTHORITIES 
CASES PAGE 
Kentucky v. King, 563 U.S. 452 (2011) ......................................................................................... 2 
State v. Baker, 141 Idaho 163, 107 P.3d 1214 (2004) .................................................................... 2 
State v. Henage, 143 Idaho 655, 152 P.3d 16 (2007)...................................................................... 2 
State v. Maddox, 137 Idaho 821, 54 P.3d 464 (Ct. App. 2002) .............................................. 3, 4, 5 
State v. Mireles, 133 Idaho 690, 991 P.2d 878 (Ct. App. 1999) ............................................. 4, 5, 6 
State v. Pick, 124 Idaho 601, 861 P.2d 1266 (Ct. App. 1993) ........................................................ 1 
State v. Roark, 140 Idaho 868, 103 P.3d 481 (Ct. App. 2004) ....................................................... 2 
State v. Schmidt, 137 Idaho 301, 47 P.3d 1271 (Ct. App. 2002) ............................................ 3, 5, 6 
State v. Willoughby, 147 Idaho 482, 211 P.3d 91 (2009) ............................................................... 2 
State v. Wixom, 130 Idaho 752, 947 P.2d 1000 (1997) .................................................................. 6 
 
 
 
 1 
ARGUMENT 
 
The District Court Erred On Intermediate Appeal By Reversing The Magistrate Court’s Denial 
Of Huston’s Motion To Suppress 
 
A. Introduction 
 
 On intermediate appeal, the district court erroneously reversed the magistrate court’s 
denial of Huston’s motion to suppress.  (Appellant’s brief, pp. 7-23.)  The district court 
erroneously held that Huston was seized without reasonable suspicion when Officer McIntosh 
parked near (but without blocking) Huston as he was standing outside his vehicle by the road, in 
the middle of the night, in a rural area; turned on his overhead lights; approached Huston; and 
explicitly told Huston that he was free to leave and the lights were on only for safety purposes.  
(Appellant’s brief, pp. 8-18.)  The district court also erroneously rejected the state’s alternative 
argument that any brief detention was justified as an exercise of the community caretaking 
function.  (Appellant’s brief, pp. 18-23.) 
 
B. The Magistrate Court Correctly Determined Huston Was Not Detained Before Officer 
McIntosh Acquired Reasonable Suspicion Of Criminal Conduct 
 
 The district court erroneously concluded Huston was seized despite Officer McIntosh 
specifically telling him he was free to leave.  (Appellant’s brief, pp. 8-18.)  Huston argues the 
district court did not err because “Det. McIntosh had no other justification to make contact, other 
than his curiosity.  Therefore, by making contact, Det. McIntosh illegally seized Huston in the 
roadside pull-out.”  (Respondent’s brief, p. 6.)  But whether Officer McIntosh had good reason to 
make contact with Huston is entirely irrelevant to whether he detained Huston.  State v. Pick, 124 
Idaho 601, 604, 861 P.2d 1266, 1269 (Ct. App. 1993)  (“There is no question but that the officer 
was authorized to approach Pick’s truck and ask questions, even if no obvious criminal activity 
 2 
was afoot.”); State v. Willoughby, 147 Idaho 482, 486, 211 P.3d 91, 95 (2009) (“An encounter 
between a law enforcement officer and a citizen does not trigger Fourth Amendment scrutiny 
unless it is nonconsensual.”).  Whatever the reason for the contact, or even if there was no reason 
at all, “a seizure occurs only if, in view of all of the circumstances surrounding the incident, a 
reasonable person would have believed that he was not free to leave.”  State v. Baker, 141 Idaho 
163, 165, 107 P.3d 1214, 1216 (2004).   
As discussed in the Appellant’s Brief, Officer McIntosh went out of his way to make it 
clear that Huston was free to leave.  (Appellant’s brief, pp. 8-18.)  Most importantly, he 
immediately and explicitly told Huston that he was free to leave and the lights were on only for 
safety.  (Tr., p. 11, Ls. 15-21; State’s Ex. 2, 00:00 – 00:03.)  Huston does not explicitly address 
any of the Idaho case law―like State v. Henage, 143 Idaho 655, 659, 152 P.3d 16, 20 (2007), 
and State v. Roark, 140 Idaho 868, 871, 103 P.3d 481, 484 (Ct. App. 2004)―endorsing the 
common-sense view that where, as here, an officer tells the person approached that he is “free to 
leave,” there is no detention notwithstanding the operation of overhead lights.  Instead, he claims 
in passing that the officer’s statement that Huston was free to leave was not part of the totality of 
the circumstances because there was “no indication he heard he was free to leave based on his 
compliance.”  (Respondent’s brief, p. 6.)  It is unclear what Huston means.  The fact that Huston 
remained on scene after he was told he was free to leave in no way implies that he was seized.  
The contrary falsely implies that no one who knew they could leave would willingly remain and 
talk with officers on a consensual basis.  See Kentucky v. King, 563 U.S. 452, 463 (2011) 
(“While most citizens will respond to a police request, the fact that people do so, and do so 
without being told they are free not to respond, hardly eliminates the consensual nature of the 
response.”).  For similar reasons, neither does the fact that Huston remained on scene suggest 
 3 
that he did not hear Officer McIntosh.  To the extent that Huston is suggesting a per se rule 
according to which what an officer says forms part of the totality of the circumstances only if the 
officer first confirms that he was heard, such a rule is unsupported by any authority or rationale 
and is inconsistent with the objective nature of the question whether a seizure has occurred.   
(See Appellant’s brief, pp. 15-16.)  Where an officer clearly states that the subject is not free to 
leave, a finding of a detention does not hinge on the officer first confirming that he was heard.  
Likewise, where an officer clearly states that the subject is free to leave, a finding that the subject 
was not detained does not hinge on the officer first confirming that he was heard.  Neither does 
the question whether a detention occurred hinge on whether, for example, the officer confirmed 
that the subject was aware of the number of officers on scene, confirmed that the subject was 
aware that guns were or were not drawn, or confirmed that the subject was aware overhead lights 
were or were not activated.     
The district court’s holding was contrary to the applicable authority and was error. 
 
C. In The Alternative, Any Brief Detention Was Justified By The Community Caretaking 
Function 
 
With respect to the state’s alternative argument that any brief detention was justified as an 
exercise of the community caretaking function, Huston relies on two cases: State v. Maddox, 137 
Idaho 821, 54 P.3d 464 (Ct. App. 2002), and State v. Schmidt, 137 Idaho 301, 47 P.3d 1271 (Ct. 
App. 2002).  (Respondent’s brief, pp. 7-9.)  Both cases are distinguishable.   
In Maddox, the officer was on patrol “in the foothills” at around 8:00 a.m. when he 
encountered a vehicle in which Maddox was a passenger.  Maddox, 137 Idaho at 823, 54 P.3d at 
466.  Maddox and the driver claimed they were looking for a friend who was on foot.  Id.  After 
speaking with the officer, they proceeded into an undeveloped area up a dirt road before parking 
 4 
just off of the road on a hillside.  Id.  Believing they may have found their friend and concerned 
about the rough terrain, the officer again drove toward the vehicle.  Id.  As he approached, the 
vehicle proceeded further up a motorcycle trail and the officer initiated his overhead lights to 
stop the vehicle.  Id.   
A divided panel of the Court of Appeals held that the community caretaking function did 
not justify the stop.  Id. at 825-26, 54 P.3d at 468-69.  To reach that conclusion the court 
emphasized several facts, none of which are present here.  First, the court in Maddox noted that 
the officer’s concern that the vehicle might get stuck if it proceeded up the hill was a concern 
about the prospective possibility that Maddox and his companion might later be in need of aid, 
not a concern that they needed aid then.  Id. at 825, 54 P.3d at 468.  The court held that officers 
may not “conduct community caretaking stops whenever they anticipate that a citizen might be 
about to embark upon an unwise venture.”  Id.  Here, Office McIntosh did not make contact with 
Huston because he thought Huston “might be about to embark upon an unwise venture,” but 
because he was concerned that something had in fact happened to Huston when he failed to 
appear around the bend of rural road in the middle of the night where there were no intersecting 
roads and there was nowhere to go.  (Tr., p. 6, L. 14 – p. 7, L. 24.)  Next, the court in Maddox 
emphasized that there was no reason for the officer to activate his overhead lights where the 
events occurred in an “off-road area” with no possibility of passing traffic and “during daylight 
hours” when it was clear the officer was in a marked patrol car.  Id. at 826, 54 P.3d at 469.  The 
court explicitly distinguished State v. Mireles, 133 Idaho 690, 991 P.2d 878 (Ct. App. 1999), 
where the Court of Appeals held that an officer was performing his community caretaking 
function when he pulled behind a stopped vehicle and initiated his overhead lights, because in 
that case the events occurred in the middle of the night and near a road.  Maddox, 137 Idaho at 
 5 
825-26, 54 P.3d at 468-69.  Because of the time and location of the events, the lights in Mireles 
“served important purposes other than detaining the motorist, including warning oncoming 
drivers and conveying to the vehicle occupant that the person stopped behind him was a police 
officer and not someone posing a threat,” while there were no “such ancillary purposes” in 
Maddox.  Id.  Here, as in Mireles and unlike in Maddox, the stop occurred in the middle of the 
night and near a road.  Thus, the facts on which the Court relied in Maddox to conclude that the 
officer was not exercising his community caretaking function are absent here, and the facts on 
which the Court of Appeals relied to find that the community caretaking function was applicable 
in Mireles are present here.   
Huston next relies on Schmidt.  Though Schmidt is closer to the facts of this case than are 
the facts of Maddox, Schmidt is still importantly different.  In Schmidt, at about 6:49 in the 
evening, an officer observed a vehicle parked roughly thirty feet off of the road in an unimproved 
pullout, initiated his overhead lights, and parked directly in front of the vehicle “essentially 
block[ing] any exit route.”  Schmidt, 137 Idaho at 302, 47 P.3d at 1272.  The Court of Appeals 
held that the detention was not justified by the community caretaking function.  Id. at 304, 47 
P.3d at 1274.  Several facts distinguish this case from Schmidt.  First, as in Mireles and unlike in 
Schmidt, the events here occurred in the middle of the night when it would be more unusual and 
concerning to find a vehicle sitting at the side of a rural road.  Second, as in Mireles and unlike in 
Schmidt, the officer observed the driver suddenly leave the roadway, raising the specter of some 
immediate need of assistance.  The officer in Schmidt just happened upon a vehicle already 
parked, whereas Officer McIntosh observed Huston’s vehicle disappear around a bend and fail to 
 6 
reappear.  Third, the nature of the alleged detention is importantly different.1  As in Mireles and 
unlike in Schmidt, the officer simply parked behind the defendant in a manner that did not block 
him from leaving.  “In analyzing community caretaking function cases, Idaho courts have 
adopted a totality of the circumstances test. The constitutional standard is whether the intrusive 
action of the police was reasonable in view of all the surrounding circumstances.”  State v. 
Wixom, 130 Idaho 752, 754, 947 P.2d 1000, 1002 (1997) (citations, quotation marks, and 
brackets omitted).  Whether a particular detention is justified by the community caretaking 
function requires looking to the nature and degree of the intrusion to determine whether it is 
reasonable in the totality of the circumstances.  The detention in Schmidt was intrusive in a way 
that the alleged detention here was not.  While the officer in Schmidt blocked the defendant’s 
vehicle so that it could not leave, Officer McIntosh made a concerted effort to park behind (and a 
good distance behind) Huston’s vehicle to ensure that Huston could leave if he wanted to.  (Tr., 
p. 19, Ls. 5-16.)  As discussed above, he then immediately told Huston he was free to leave.  (Tr., 
p. 11, Ls. 15-21; State’s Ex. 2, 00:00 – 00:03.)  Assuming arguendo that there was a detention, it 
was exceptionally non-intrusive and, unlike the detentions in Schmidt and Maddox, was as 
minimally intrusive as possible to safely investigate and ensure Huston’s well-being.   
Both because there was no detention of Huston and, even if there was, it was justified as 
an exercise of the community caretaking function, the district court erred by reversing the 
magistrate court’s denial of Huston’s motion to suppress.  
 
 
 
 
 
                                            
1 Of course, the state’s primary position is that there was no detention at all in this case.   
 7 
CONCLUSION 
 
 The state respectfully requests this Court to reverse the district court’s order on 
intermediate appeal reversing the denial of Huston’s motion to suppress.  
 DATED this 16th day of September, 2021. 
 
 
        
   /s/  Andrew V. Wake 
 ANDREW V. WAKE 
 Deputy Attorney General 
 
 
 
CERTIFICATE OF SERVICE 
 
 I HEREBY CERTIFY that I have this 16th day of September, 2021, served a true and 
correct copy of the foregoing REPLY BRIEF OF APPELLANT to the attorney listed below by 
means of iCourt File and Serve: 
 
 MARK P. COONTS 
 GEM COUNTY PUBLIC DEFENDER 
 gempublicdefender@gmail.com 
 
 
 
   /s/  Andrew V. Wake 
 ANDREW V. WAKE 
Deputy Attorney General 
AVW/dd 
 
 
 


State v. Huston Appellant\u27s Reply Brief Dckt. 48367

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
4-29-2021 
Johnson v. State Appellant's Reply Brief Dckt. 48376 
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Recommended Citation 
"Johnson v. State Appellant's Reply Brief Dckt. 48376" (2021). Not Reported. 7107. 
https://digitalcommons.law.uidaho.edu/not_reported/7107 
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MAY O 6 2021 
~nt,rlldonATSby o 
Appellant 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
t.J;c,ho\cs ~~~ , ) Supreme Court No '1 B3,to-zoi.a • 
) Case No. CV 14 - ,Q()-b{( 5 9 
Appellant, ) 
) APPELLANT'S BRIEF 
VS. ) 
Re..'f>l'( ~<'; e-f 
S\tt\e__ oO 1=&-~ko ) ' ) 
) 
Respondent. ) 
Appeal from the District Court of the Tk.1 ,,J Judicial District 
for ~ ~~1~ County. 
The Honorable Dei✓ 1 S L =~ d.tOil iJ e , District Judge presiding. 
APPELLANT'S BRIEF - 1 
Revised: 3/24/ l 6 
' 
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N 
APPELLANT'S BRIEF - 2 
Revi sed: 3/24/16 
TABLE OF CONTENTS 
TABLE OF CASES AND AUTHORITIES 
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CERTIFICATE OF MAILING 
I HEREBY CERTIFY that on the __J!j___ day of _ __.A-'----'--F-p_r_;_/ __ , 2o_g_f_, I 
mailed a true and correct copy of the APPELLANT'S BRIEF via prison mail system for 
processing to the United States mail system, postage prepaid, addressed to: 
APPELLANT'S BRIEF -7 
Revised: 3/24/ 16 
Deputy Attorney General 
Criminal Division 
P.O. Box 83720 
Boise, ID 83720-0010 


Johnson v. State  Appellant\u27s Reply Brief Dckt. 48376

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UIdaho Law 
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Not Reported Idaho Supreme Court Records & Briefs 
7-13-2021 
State v. Borden Respondent's Brief Dckt. 48391 
Follow this and additional works at: https://digitalcommons.law.uidaho.edu/not_reported 
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"State v. Borden Respondent's Brief Dckt. 48391" (2021). Not Reported. 7113. 
https://digitalcommons.law.uidaho.edu/not_reported/7113 
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 1 
LAWRENCE G. WASDEN 
Attorney General 
State of Idaho 
 
MARK A. KUBINSKI 
Deputy Attorney General 
Chief, Criminal Law Division 
 
KENNETH K. JORGENSEN 
Deputy Attorney General 
P. O. Box 83720 
Boise, Idaho  83720-0010 
(208) 334-4534 
Email: ecf@ag.idaho.gov 
 
 
IN THE SUPREME COURT OF THE STATE OF IDAHO 
 
 
STATE OF IDAHO,  
 
          Plaintiff-Respondent, 
 
v. 
 
JEPTHY ALLEN BORDEN, 
 
          Defendant-Appellant. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
 
NOS. 48391-2020, 48392-2020 
 
Kootenai County Case Nos. CR28-19-
15305, CR28-19-16216 
 
 
RESPONDENT’S BRIEF 
 
 
 Has Jepthy Allen Borden failed to show that the district court abused its sentencing 
discretion when declined his motion to reduce his concurrent aggregate sentences of ten years with 
five years determinate on two convictions for burglary and one conviction for eluding law 
enforcement? 
 
ARGUMENT 
 
Borden Has Failed To Show That The District Court Abused Its Sentencing Discretion 
 
A. Introduction 
 When an officer attempted to stop a black truck for reckless driving, the truck ran a red 
light and attempted to elude the officer, at times driving through incoming traffic and using speeds 
Electronically Filed
7/13/2021 1:50 PM
Idaho Supreme Court
Melanie Gagnepain, Clerk of the Court
By: Brad Thies, Deputy Clerk
 2 
more than double the posted speed limit.  (48391 R., p. 15.)  Subsequent investigation showed 
Borden was the driver of the truck.  (48391 R., pp. 15-23.)  While the eluding investigation was 
ongoing, police received a report of a burglary of a barn, in which a motorcycle and ATV were 
stolen.  (48391 R., pp. 22, 24-25.)  The investigation of the burglary also lead to Borden.  (48391 
R., pp. 22-23, 26-36.)  A few days after the burglary of the barn, police received a report of a 
residential burglary of two unoccupied homes for sale.  (48392 R, p. 14.)  The houses had been 
“ransacked” and several items stolen.  (48392 R., pp. 14-15.)  Once again, the investigation led to 
Borden.  (48392 R., pp. 17-22.) 
 The state charged Borden with eluding, two counts of burglary (of the barn), grand theft, 
and two counts of petit theft in one case.  (48391 R., pp. 69-71.)  In another case the state charged 
him with three counts of burglary (of the houses), conspiracy to commit burglary, and grand theft.  
(48392 R., pp. 34-37.)   Borden pled guilty to two counts of burglary and one count of eluding in 
a plea agreement resolving both cases.  (48391 R., pp. 76-81; 48392 R., pp. 53-58.)  The district 
court imposed concurrent sentences of five years determinate for eluding and ten years with five 
years determinate on each burglary, for an aggregate sentence of ten years with five years 
determinate.   (48391 R., pp. 119-21; 48392 R., pp. 105-06.) 
 Borden later moved for a reduction of his sentences.  (48391 R., pp. 122-24; 48392 R., pp., 
108-10.)  The district court denied the motions.  (48391 R., p. 130; 48392 R., p., 115.)  Borden 
filed notices of appeal timely from the denial of his Rule 35 motions for reduction of sentence.  
(48391 R., pp. 132-34; 48392 R., pp. 117-19.) 
 Borden argues that “the district court did not exercise reason in denying his motions to 
reduce his sentences.”  (Appellant’s brief, pp. 4-10.)  This argument fails because it is unsupported 
by the record. 
 3 
 
B. Standard Of Review 
 
 The denial of a Rule 35 motion for reduction of sentence is reviewed for an abuse of 
discretion.  State v. Dabney, 159 Idaho 790, 798, 367 P.3d 185, 193 (2016).  In conducting a review 
of the grant or denial of a Rule 35 request for leniency, the appellate court applies the same criteria 
used for determining the reasonableness of the original sentence.  State v. Anderson, 163 Idaho 
513, 517, 415 P.3d 381, 385 (Ct. App. 2015).  A sentence is reasonable if it appears necessary to 
accomplish the primary objective of protecting society and to achieve any or all of the related goals 
of deterrence, rehabilitation or retribution.  State v. Schiermeier, 165 Idaho 447, 454, 447 P.3d 
895, 902 (2019); Anderson, 163 Idaho at 517, 415 P.3d at 385 (citing State v. Toohill, 103 Idaho 
565, 568, 650 P.2d 707, 710 (Ct. App. 1982)).  The appellate court “will not review a defendant's 
underlying sentence for excessiveness when the defendant has appealed only the grant or denial of 
his Rule 35 motion unless the motion was supported by new evidence tending to show that the 
original sentence was excessive.”  State v. Carter, 157 Idaho 900, 903, 341 P.3d 1269, 1272 (Ct. 
App. 2014) (citing State v. Farwell, 144 Idaho 732, 735, 170 P.3d 397, 400 (2007); State v. 
Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007)). 
 
C. Borden Has Shown No Abuse Of The District Court’s Discretion 
 
 Borden’s criminal record preceding the current convictions consisted of two felonies and 
seven misdemeanors, “including Burglary, Trespass, Petty Theft, Theft with a Prior, Spousal 
Battery, Minor Possess Alcohol, Sell Liquor to Minor, Disturbing the Peace, Grand Theft, 
Possession of a Controlled Substance, Paraphernalia, and Inattentive Driving.”  (PSI, pp. 5-10.)  
He had “at least three active warrants for his arrest.”  (PSI, p. 10.)  After noting Borden’s 
unfortunate childhood at sentencing, the district court found an adult history “full of stealing, theft, 
 4 
[and] burglary.” (3/5/20 Tr., p. 24, L. 21 – p. 26, L. 10.)  The district court concluded that 
community protection was a central concern based on the nature of the crimes.  (3/5/20 Tr., p. 26, 
L. 11 – p. 27, L. 17.)  The district court also considered the other factors of sentencing.  (3/5/20 
Tr., p. 27, L. 18 – p. 29, L. 7.)  Regarding rehabilitation, the district court found it could “happen 
after or toward the end of a prison term.”  (3/5/20 Tr., p. 30, Ls. 1-9.) 
 In rejecting Borden’s motion to reduce his sentence to make him eligible for rehabilitation 
programming earlier the district court noted that having an offender wait until about a year before 
being eligible for release on parole was typical.  (8/28/20 Tr., p. 28, L. 25 – p. 29, L. 8.)  The 
district court also considered the nature of Borden’s crimes, which it found were “egregious,” and 
Borden’s criminal history.  (8/28/20 Tr., p. 29, L. 21 – p. 31, L. 22; p. 32, Ls. 3-13.)  Reducing the 
sentences would “depreciate the seriousness of the crime[s].”  (8/28/20 Tr., p. 31, L. 23 – p. 32, L. 
2.)  The record shows the district court weighed various factors and reached a decision within its 
discretion. 
 On appeal Borden reiterates the evidence he believes is in his favor and asserts the district 
court abused its discretion by not exercising reason because it did not give greater weight to that 
evidence.  (Appellant’s brief, pp. 4-10.)  However, he ignores the factors the district court found 
most weighty, including protection of the community, deterrence, and that a lesser sentence would 
depreciate the seriousness of Borden’s crimes.  Because review of the record shows the denial of 
the motion to reconsider was reasonable, Borden has failed to show an abuse of discretion.   
 
  
 5 
CONCLUSION 
 
 The state respectfully requests this Court to affirm the judgment of the district court. 
 DATED this 13th day of July, 2021. 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that I have this 13th day of July, 2021, served a true and correct 
copy of the foregoing RESPONDENT’S BRIEF to the attorney listed below by means of iCourt 
File and Serve: 
 
JACOB L. WESTERFIELD 
DEPUTY STATE APPELLATE PUBLIC DEFENDER 
documents@sapd.state.id.us 
 
 
 
  /s/  Kenneth K. Jorgensen 
KENNETH K. JORGENSEN 
Deputy Attorney General 
 


State v. Borden Respondent\u27s Brief Dckt. 48391

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