*1 provided by initiated review the SIPR. In IV. cases,
both the Parole Commission exercises determining its pa- discretion who will be CONCLUSION changes, roled. Even after the rule the Pa- prison hold that We inmates do role Commission’s discretion is the same and statutory right mandatory counsel habe- parole eligibility the standards for are the corpus proceedings. as We further hold that same. While there are indeed differences changes the Parole Commission’s rule do not change between the Idaho rule and the violate the Ex Post Facto Clause. Accord- Gamer, changes in Morales and those differ- ingly, magistrate judge, we affirm the and we ences do not create a in- sufficient risk of agree with the lower court that the no-driv- punishment creased in Idaho due to the rule ing parole condition was reasonable. Gamer, change. Like Morales and the Ida- change ho place rule leaves in the same SCHROEDER, WALTERS, Justices eligibility parole
standards of and an EISMANN, option KIDWELL and CONCUR. for inmate-initiated review. Because Quinlan’s punishment changed, has not been inflicted, punishment
nor a harsher the Ex
Post Facto Clause of the United States Con-
stitution has not been Accordingly, violated. genuine
there is no issue of material fact and
summary judgment proper as a matter 56(c).
of law. I.R.C.P.
C. The condition on Idaho, Plaintiff-Respondent, STATE parole was reasonable.
Finally, Quinlan claims the denial driving privileges all was an unreasonable ALSANEA, Nazar Khaled parole. condition of Conditions on an in Defendant-Appellant. parole mate’s must be reasonable and aimed toward Mellinger rehabilitation. v. Idaho No. 27756. Corrections, Dept. Appeals Court of Idaho. (Ct.App.1988) P.2d (citing case from California that in turn cites cases trac Jan. 2003. ing this “reasonable” standard back to the May Review Denied 2003. Fourteenth pro Amendment constitutional against arbitrary tection oppressive offi action).
cial The lower court held that denial driving privileges
of all was a reasonable
response Quinlan’s two DUI convictions. magistrate judge was correct in deter
mining that the condition was related to re Quinlan’s
habilitating drinking driving, protecting public by ensuring that no involving
further offenses a motor vehicle Quinlan agreed
would occur. to abide being parole.
condition released on legislature suspension has indicated that driving privileges appropriate re See,
sponse drinking driving. e.g., 18-8002, §§ -8002A. We find that the
no-driving condition was a reasonable re
sponse Quinlan’s behavior and affirm the
magistrate judge’s decision.
735
Molly Appellate Huskey, J. Public Wadams, Defender; Deputy Charles Isaac Defender, Boise, Appellate appel- for Public argued. lant. Charles Isaac Wadams General; Lance, Attorney Alan G. Hon. General, Fleming, Attorney Deputy Lori A. Boise, respondent. Fleming Lori A. ar- gued.
PERRY, Judge. appeals Khaled from his
Nazar Alsanea judgments and sentences for of conviction aggravated two assault on a law counts officer, during enforcement use of firearm crime, of a violation of a no- commission order, entry. and unlawful Alsanea contact appeals from of the district also an order motion denying his to correct I.C.R. illegal affirm. sentence. We I. AND
FACTS PROCEDURE girlfriend and had with his Alsanea lived approximately years three when their son for they separated July girlfriend 2000. The home, try, guilty A found him moved into her and Alsanea 18-7084. mother’s charges of all after a trial. apartment. girlfriend moved into an initially allowed to see their son as Alsanea aggravated For assault on a both counts but, pleased August, often as he she cur- officer, law enforcement the district court September, girl- tailed his visitation. consecutive, determi- sentenced Alsanea to police reported friend called the twice and years. For nate terms of ten violation of the stalking harassing Alsanea was her. order, no-contact was sentenced to a Alsanea girlfriend Alsanea confronted the several consecutive, year. term of one indeterminate during During times the next two months. consecutive, Alsanea was sentenced to inde- November, one confrontation in Alsanea in- months for unlawful terminate term of six girlfriend purchased formed the had entry. imposed also The district court her, and threatened to shoot her moth- fifteen-year term indeterminate for use of a er, son, their and himself. was ar- during firearm the commission of a crime stalking. Upon rested on November 15 for and ordered that it run consecutive to Alsa- jail, his release continued to nea’s sentence for the second as- girlfriend despite being contact the served charge. aggregate, sault In the with a no-contact On order. November years thirty-six sentences totaled six an “aware alarm” installed at the home months, period with a minimum confine- girlfriend’s so that mother years. twenty subsequently ment of *5 immediately girl- could be if contacted illegal filed an to correct an I.C.R. 35 motion being by friend was threatened Alsanea or sentence, ap- which was denied. Alsanea danger. was in peals, contending the district that court by admitting prior erred bad acts evidence at evening On the of December Alsanea trial, allowing his trial counsel to waive his girlfriend’s entered the mother’s home right interpreter, refusing give to an a through an door. unlocked back He handed requested jury instruction. Alsanea also ar- girlfriend pictures two of their son and gues are that his sentences excessive and longer stated that he no needed them. Addi- by that denying the district court erred tionally, gave girlfriend’s Alsanea mother illegal I.C.R. 35 motion to correct an sen- money some that her. he owed Alsanea then tence. speak girlfriend asked to with the outside. talking, While the girl- two were outside II. friend’s sister activated aware alarm and report presence called 911 to at ANALYSIS home. responded Officers to the home and A. Prior Bad Acts Evidence approached weap- the front door with their trial, gave Prior to notice of its the state ons get drawn. Alsanea ordered to was on that intent to use evidence Alsanea had ground Rather, comply. but failed girlfriend previ- that he stalked his had pulled gun a from his waistband and ously hearing kill a threatened to her. At pointed it at the officers. One of the officers motion, stipulation by the state’s was a there weapon, hitting fired his Alsanea in the the defense that a order was in no-contact shot, Upon hearing chest. first officer’s incident, effect at the time of the there firing a at began second officer Alsanea. Al- had been contacts Alsanea with the ultimately collapsed sanea onto a bathroom girlfriend requiring installation of the aware being approximately floor after shot seven alarm, place alarm in and that the aware was times. at the time of the offenses. The district charged with two counts of determined that officers’ actual aggravated assault on a law enforcement offi- knowledge propensity for of Alsanea’s vio- cer, 18-901(b), 18-905(a), 18-915; lence, §§ I.C. stalking use as demonstrated a during firearm commission of a girlfriend, harassment of his was relevant to crime, 19-2520; § key I.C. violation of a no-con- element of assault —wheth- order, 18-920; tact er the and unlawful en- officers had a well-founded fear that that, sitting therefore, day, ing work one she saw Alsanea in
violence was imminent —and parking in the told her the evidence admissible. district his car lot and he (7) purchased gun; court stated: as she was he had day, leaving her home for one work Well, going I think to have to there’s phone her on the and told her not to called through girl- [the some foundation offered did, if he leave the house because she type of conduct was friend] about what her, son, mother, their going to shoot her complained police, that she of to the what himself, offi- reported which she to another police she advised the of. (8) cer; jail after Alsanea called her from the I think that the focus of should be this stalking he had been arrested for and stated testimony, in general was there stalk- that he could not believe that she would ing, but what did she tell the about implied him arrested and if she was experiencing, she had been because I what then, scared she would be more scared when relevant, that’s the knowl- think because (9) jail; after was released he edge relevant of a well- to the element jail, fear, Alsanea was released from he continued told them founded and so what she despite her no-eontact order to contact about it is relevant. being issued. The fact that have been other there experienced that she that she conduct did in involved the incident One officers report, I don’t think those issues we (1) in September testified that: took into, get isn’t a broad- should because this stalking reports concerning Alsanea’s two aggravat- stalking er trial. a trial on It is (2) he re- girlfriend; harassment of the assault, important and so ed what becomes police intelligence prior to ceived a bulletin po- report to the is what conduct did she indicating, part, that Alsa- Alsanea’s arrest lice, investigating offi- particularly . [the purchased nea had and had threatened himself, mind so that it was eer] himself; son, girlfidend, kill the their the time of incident. (3) November, late he discovered *6 (1) trial, attempted millim- girlfriend purchase that: in a nine At the testified Alsanea to 2000, that, stalking Alsa- September began gun when he confronted Alsanea eter purchase, at first de- harassing reported her and this conduct nea about the Alsanea she (2) officer; October, attempted buy gun in he a later investigating nied that to the but a rifle purchase her if not let him that he tried to deer Alsanea told she did stated (4) wanted, friend; and that an aware for a he knew see their son whenever he was accident; (3) girlfriend’s in had been installed the going to cause her have a car alarm hearing home. officer testified way home re- mother’s The other on her from a court (1) son, September, custody in he assisted the first garding of Alsanea forced that: their girlfriend’s com- with the harassment kidnap car off the road threatened to officer her (2) Alsanea; him; an plaint against he received son if she did not let Alsanea see their (4) October, indicating he needed typing intelligence on bulletin later in she was while bedroom, of and harassment of computer in her to be aware threats to a called (3) Alsanea; family by girlfriend and doing on the com- the her and asked what she was information that Alsanea told her her all he had received puter and that he watched (5) it; may be attempted purchase a knowing No- the time without her (4) armed; knowledge that an vember, phone he had cell Alsanea called her in the house report- alarm had installed day, she aware been least ten times one which (6) officer; girlfriend’s leav- mother.1 investigating the after of the ed to Alsanea, by ny appeal, On this our examination of at trial. As conceded the state and there 1. admissibility prior testimony presented of had acts evidence is fell the the at trial that outside .was scope ruling falling pre-trial the within the scope confined to evidence of the district court’s the ruling. address admissibility district court’s We do not prior of bad acts evidence of the the admissibility went be- of evidence that not that the officers it was established because scope ruling personal yond it was not aggravated had because assaults involved in objection preserved by at trial. for our review an knowledge testified to. Alsa- of some of the acts 644, 645, Rozajewski, 945 Idaho object that testimo- See State v. 130 trial counsel not nea's did
739 appeal, upon per- On Alsanea claims that the admis- Alsanea committed an assault (2) another; concerning prior sion of his acts person evidence bad assaulted was son of was erroneous there not an because knew a officer and that Alsanea (3) independent for the of the police officer; basis relevance person the as- testimony, prove propensity other than to deadly weapon or sault was committed with a against to commit the assaults instrument. “Assault” was defined as additionally the officers. Alsanea asserts attempt, apparent ability, with unlawful that, testimony even if the was relevant for injury person commit a violent on the proper purpose, prejudicial some value of intentional, another unlawful threat or substantially testimony outweighed its person word to do or act violence to probative portrayed value because another, so, apparent ability with an to do predisposed as a man to commit crimes of doing of and the some act which created a Finally, argues violence. person fear in the well-founded other admitting error in testimony Thus, such violence was imminent. whether harmless. had a fear the officers well-founded that vio- lence was imminent was a material element crimes, wrongs, Evidence other According proven to be the state. to the prove acts is not defen admissible to 901(b),however, plain language of I.C. 18— 404(b); propensity. dant’s criminal I.R.E. requisite of an well-founded fear assault Needs, 883, 892, State v. 99 Idaho 591 P.2d doing victim arise from must act 130, (1979); Winkler, 139 State question here, aiming gun at the offi- — 1371, (Ct.App.1987). P.2d pre- cers—rather than from the defendant’s However, such evidence be admissible vious bad acts of which the is aware. victim purpose for a prohibited by other than that Boehner, 311, 3, State v. 314 n. 404(b). Avila, 410, Cf. I.R.E. (The 1075, (Ct.App.1988) 1078 n. 3 basis for an assault victim’s fear well-founded determining admissibility evidence must arise from an “act” rather than from an acts, prior applies two-prong bad this Court occasion.). alleged statement made on a analysis. First, the evidence must be rele Hence, previous conclude that we material, disputed vant to a concerning issue stalking girlfriend threatening acts of Moore, charged. crime State v. 120 Ida were relevant to the well-found- officers’ (1991). ho Rel ed fear. evant defined evidence is as which evidence has tendency to make the of a existence argues testimony The state that the con- *7 fact consequence proba of in an action more cerning stalking Alsanea’s of and threats to probable ble or less than the fact would be girlfriend the was also relevant to Alsanea’s without the evidence. I.R.E. 401. Whether aggravated intent to commit the assaults. we, evidence is relevant is an issue of law and respect type to the of With “threat” assault therefore, exercise free a trial review of 901(b), by proscribed the state’s 18— relevancy court’s determination. State At prove beyond burden was to a reasonable kinson, 654, 864 P.2d 657 Alsanea make a threat doubt that intended to (Ct.App.1993). analy step The second in the apprehension and caused in the officers. See pro sis is the of determination whether the 891, 888, Dudley, 137 State v. Idaho substantially bative value of evidence the is 881, (Ct.App.2002). of 884 Evidence other outweighed by prejudice. unfair When Id. crimes, wrongs, may be or bad acts used to step reviewing we this use an abuse dis prove mens rea of a crime. the element cretion Id. standard. 404(b); Wood, 241, Idaho I.R.E. State v. 126 771,
Here, 246, (Ct.App.1994). The jury was that in 776 the instructed generally aggravated logical order to Alsanea of such convict as relevance evidence officer, upon upon proof charged the dependent sault a the that law enforcement (1) similar, proving prior state had were the burden that: offense and bad act 1390, (Ct.App.1997). passed stipulation pre-trial by P.2d do not We also Alsanea’s at admissibility hearing. address the of the evidence encom- look, that the act involved the same or determined like he was an “obstacle” to bad similar victims, Both of the officers testi- and that it involved the same state of Alsanea. involved jacket swept fied that Alsanea his back with mind that constitutes the mens rea element his officer as a charged elbow—which one described offense. Id. distinct, pulled very unfriendly gesture —and Here, prior stalking Alsanea’s bad acts of witnesses, gun. including out his Several harassing girlfriend and his were not similar officers, gun testified Alsanea his that aimed aggravated against to the committed assaults pulling at officers it of his after out prior the officers. acts which the pull- waistband. Evidence of Alsanea’s act calling officers aware involved were Alsanea ing aiming at gun a from his waistband and it girlfriend’s phone cell ten times in one obviously implied intent to officers his day girlfriend informing and Alsanea he Accordingly, because threaten officers. purchased gun verbally had a and threaten- guilty Alsanea’s intent could be established ing to shoot her if she not submit to his did pulled gun that proving out his concerning girlfriend will their son. The did officers, pointed testimony con- gun testify that she or that observed cerning prior bad Alsanea’s acts was pointed aggravated it at her. The necessary prove his intent. charged assaults that involved sum, actually pulling gun him a from the waist- conclude the testi we pants aiming police prior band of his it at two mony concerning Alsanea’s bad acts prior officers. victim of acts not relevant to the officers’ well-founded girlfriend, perhaps was his certain mem- fear of imminent violence to Alsanea’s family, committing aggravated bers of her rather than offi- intent in assaults. required Finally, cer. rea for We examine in admit mens now whether error stalking willfully ting harassment is to evidence harmless. Error is such another, prejudicial. maliciously follow or harass not reversible unless it is whereas Stoddard, P.2d aggravated the intent element of is to assault intentionally (Ct.App.1983). An harmless threaten violence and cause error is if, if, apprehension only appellate Al- is able to another. Evidence that doubt, girlfriend pur- say, beyond sanea told his that he had a reasonable a gun, chased and that he intimidated her the same result absent would reached Boman, her, verbally threatening and kill to shoot error. State v. 950-51,
was not to his intent to 293-94 relevant threaten officers with violence. The similarities be- trial, testified At several witnesses prior stalking tween Alsanea’s acts of pull gun they observed girlfriend threatening his and the it at the officers. waistband and aim against lacking. assaults the officers are they further testified that Those witnesses officers,
Furthermore, if at the even Alsanea’s believed Alsanea fired testi charged although acts refuted that bad and the offenses were suffi defense witness similar, testing ciently by stating mony this has that he conducted Court held *8 proof gun that it had not where of the commission of the Alsanea’s and discovered charged the he did not offense with it evident fired. Alsanea testified that carries been rather, intent, but, un implication gun aim at officers of a criminal evidence of pull perpetration successfully to his from attempted like offenses or bad other them. The resolu give will his to it to acts not be admitted. See State v. Stod waistband dard, 533, 537, 1318, 1322 rested tion the conflict in the evidence story credi ample upon found more There was evidence whose verdicts, jury ap upon crimi Based adduced at trial which Alsanea’s ble. There parently state’s version. nal intent could be determined. One of believed the evidence, ir in aside from officers involved assaults was substantial evidence, supporting that, prior bad acts testified when he confronted Alsanea relevant get jury’s guilt. conclude ground, him to down on the verdicts of We and ordered the com- directly strong, beyond him a doubt that Alsanea looked at with a reasonable English, plained-of testimony printed did not to the in which he contribute read a document interpreter to jury’s that in admit- was unable do. The assisted verdicts and the error was, reading in therefore, the document and then ting testimony harmless. prosecu- to the response
translated Alsanea’s Interpreter only Right That instance in inquiry. to an tor’s was the B. interpreter which the assisted Alsanea with English language. is not Alsanea’s native testimony. appeal, his On Alsanea claims to calling testify, Prior Alsanea to defense by permitting district court erred counsel informed district court Alsa- testify English, him in without the to aid of try questions wished to nea and answers interpreter, asserting right his that his to an only English interpreter in have the interpreter only per- could him be waived personally available if ad- needed. Without sonally attorney. the record Alsanea, stated, dressing the district court Generally, appoint to an in whether “Right. interpreter But I would like the terpreter requested after the defendant has physically be more available so Mr. Alsanea resting one is a decision within the trial question to, if can ask a if we needs so not be court’s discretion will overturned get up by a could chair for her the witness unless the defendant shows that the discre Thereafter, stand.” in En- testified Hernandez, been tion has abused. State glish day. until the trial was recessed for the (Ct. day, testimony The next Alsanea resumed his case, App.1991). this the issue is not following exchange and the place: took whether the district court abused its discre ahead, THE why COURT: Go but don’t by failing appoint interpreter tion for you keep your questions in phrased a but, rather, whether the district simpler manner. by allowing court erred defense counsel to interpreter waive Alsanea’s use of the once Now, you yesterday PROSECUTOR: appointed. been one had This involves a seeing talked girlfriend] [the about law, question of over which this Court exer Albertson’s. O’Neill, review. cises free See State DEFENDANT: Yes. (1990). PROSECUTOR: What Albertson’s was right interpreter to an is codified that— language 9-205 I.C.R. 28. The Judge, sorry. COUNSEL: I’m It doesn’t by both the used statute the rule is interpreter look like the is here. nearly provides identical and an ac- THE why asking COURT: That’s I was party tion in which witness does not keep counsel simple. kind of I speak English language, understand or don’t know what is. I confusion appoint shall qualified interpreter know Mr. Alsanea said he need doesn’t interpret proceedings to and the testi- one. mony party. of such witness or Neither the COUNSEL: Some terms he not un- statute nor the rule addresses whether a derstand. right interpreter defendant’s to an can be think, requirements doing THE waived or the especially COURT: I so. world, legal people sometimes tend courts have Several addressed the issue of wording everyone use famil- right waiver of or her defendant’s to an with, helpful iar so it can to have Neave, interpreter. In State v. 117 Wis.2d know, interpreter. I You would feel 359, (1984), 344 N.W.2d the defen- more if we comfortable would wait few spoke exclusively Spanish very dant lit- *9 arrive, why minutes for to don’t her so tle, English. Although any, interpreter if an we take may a short break. She appointed was to assist defendant at the his something, car trouble or so we will preliminary hearing arraignment, and there continue after that. interpreter appointed was at no his trial or recess, interpreter sentencing. After a short the appeal arrived. On the denial from of the Thereafter, prosecutor application the to post-conviction asked Alsanea defendant’s re-
742 unless lief, Supreme required with conviction the de- dealt dant’s was the Wisconsin Court right reviewing an right. of whether a to waived After the issue defendant’s fendant record, by interpreter provided was not the the that there no the court noted was —which by voluntarily or state constitutions or state federal indication that the defendant but, rather, by no- guaranteed intelligently right statute was waived his constitutional to may by the de- tions of be waived interpreter. court held that because an The fairness — attorney or to treated as a interpreter guaranteed fendant’s was be right to an was the by personal right may only which waived constitution, be validly it could not by the state’s fun- examining After those the defendant.2 showing waived without an affirmative on be only rights which be waived damental could intelligent voluntary of an the record by personally to the defendant by acquies- the The mere defendant. waiver —whether jury, forego plead guilty, request by a trial by defense was to cence counsel insufficient counsel, of or obtain the assis- the assistance right to the the defendant’s assistance waive counsel and refrain from self-incrim- tance of interpreter. of his rights essentially fell ination —and other in reached A similar conclusion was category of en- under the tactical decisions Rodriguez, N.J.Super. A.2d counsel, to the the court trusted defendant’s (1996). again, the un- There defendant concluded that waiver of the defendant’s spoke very English. little derstood right interpreter made volun- to an must be interpreter was not afforded an at defendant by tarily open in court on the record and hearings and, of the first two his three attorney. the defendant’s fact, the his defense counsel waived defen- People Aguilar, v. Mata 35 Cal.3d right interpreter to the dant’s a court at (1984), Cal.Rptr. P.2d 1198 the hearing. appeal an intermediate second On spoke limited En- defendant understood and court, municipal superior the the court from glish. interpreter appointed An to assist interpreter right the an held that However, during trial. the the defendant by guaranteed the confrontation assis- proceedings, of the the defendant’s course of counsel clauses of both federal tance by prosecution interpreter was borrowed The court referred and state constitutions. interpret testimony prosecution of two 1827(f)(1), § which is federal to 28 U.S.C. jury. for the court and Defense witnesses governing appointment inter- statute counsel, consulting the defen- without with requires expressly and which that a preters dant, allowing prosecutor acquiesced right waiver his or her to an defendant’s interpreter. the defendant’s use only per- if interpreter can be effective done judgment appeal from the On defendant’s sonally opportunity on record after conviction, Supreme Court the California result, the As a court consult with counsel. right to an inter- that the defendant’s noted explicitly held that a defendant must state on by preter provided Consti- California waiving or she is his or the record required and that the constitution tution right interpreter. her to an during interpreter to aid the defendant above, From a of the cases proceedings. Because review course of whole appears to be general consensus interpreter did not assist the defendant trial, right must his or her to an defendant waive during the entire course of his court personally the record and that interpreter denied that the defendant was determined regardless voluntary, further de- a waiver be right. The court such must constitutional However, right. of the source termined that because the defendant was distinguishable at bar is those right the borrow- case denied a constitutional courts found that interpreter, of the defen- cases which the ing reversal voluntarily. knowingly, intelligently, See interpreter right 2. in Wisconsin now (2001). requirement § provided statute includes the Other states’ stat- WIS. STAT. 885.38 right to an waive his or her similarly require that a defendant that a defendant’s waiver utes person interpreter See, if the advises voluntarily intelligently e.g., made. waiver and determines nature and effect (1989). WASH. REV. CODE 2.43.060 has been made record that waiver on the
743 right interpreter given, reviewing the to an was the court must examine defendant’s given that that was instructions were and the evidence waived and such waiver error. Un- Johns, trial. by in that adduced at State v. like the situations faced the defendants was 1327, 873, 881, Neave, 112 736 P.2d 1335 Aguilar, Rodriguez, Mata Idaho where (1987). jury question whether the has an the defendants did not have access to question of law properly instructed is a been interpreter, deprived not of his was over we exercise free review. State v. Indeed, which interpreter’s Alsa- assistance. after 691, Gleason, 62, 65, 694 attorney nea’s advised the district court (1992). instructions, reviewing jury When questions to the wished have whole, we ask whether the instructions as a English, answers the district court never- fairly accurately individually, not required interpreter theless to be Bowman, applicable State 124 reflect law. v. physically near Alsanea in the event he need- 193, (Ct.App. 199 Having appointed ed assistance. an inter- 1993). preter readily to Alsa- available assist necessary, nea if court district was under charge A trial court must constantly obligation no use monitor the necessary jury all of law with matters which Alsanea and trial counsel made of 19-2132(a). Thus, § their information. I.C. State, interpreter. See Cadet So.2d defendant is entitled instructions (Fla.Ct.App.2002) (Although a defendant’s rules of law material to the determination of right interpreter by only to an is waivable guilt innocence. State v. the defendant’s personally by and not defendant the de- Fetterly, 126 Idaho attorney, fendant’s where the trial court (Ct.App.1995). requested jury A instruc interpreter made available to the defen- governing given tion on law must be where a obligation dant it was under no to monitor sup view of evidence reasonable would interpreter.). the defendant’s use of the subject port legal theory, the defendant’s Therefore, right we conclude that Alsanea’s by adequately instruc not covered other interpreter was waived no not and that given jury, tions to the and the instruction error of the district court has been shown. impermissible com does not constitute an 476-77, ment on the evidence. Id. at Jury Requested C. Instruction P.2d at 781-82. trial, At requested the close of by In Spurr, stopped the defendant was jury the district court instruct police they two him officers after noticed guilty could find him both counts of staggering along Spurr the roadside. be- aggravated assault on a offi- law enforcement belligerent stopped came when officers cer it found unless that both crimes arose out him, they questioned handcuffed him so separate and distinct acts and that each patrol Spurr placed him in their vehicle. accompanied act a criminal intent. began kicking inside of vehicle. refused, stating district that Alsa- Spurr might Fearing damage the vehi- requested adequately nea’s instruction was interior, opened door to cle’s officers covered another instruction which advised ejected Spurr him. restrain was somehow that it must each count of consider Upon hitting ground, vehicle. separately assault and that Spurr kicked one knee. officers prove beyond state each must count a rea- Spurr ultimately charged with obstruct- appeal, sonable doubt. On Alsanea asserts officer, 18-705, ing I.C. and bat- completely that it clear whether officer, 18-903,18- §§ tery upon police separate actions were divisible into events 915. requested and that his instruction should judgments appeal from of convic- On given according been this Court’s tion, alleged Spurr separate that his convic- holding Spurr, battery tions for and obstruction violated the P.2d 1315 jeopardy provisions Fifth double determining prohibition against whether a re mul- Amendment quested jury tiple punishments instruction should have for the same acts con- been
744 apply. prohibition § also does not tamed in I.C. 18-301. This Court constitutional former that, McKeeth, 619, 624, entirely it not clear held because was 136 Idaho 38 See State v. upon Spurr’s record actions whether 1275, Further, (Ct.App.2001). 1280 P.3d events, separate were into the trial divisible jury that it was district court did instruct required jury court was instruct required aggravat- to consider each count of Spurr guilty could not find of both offenses Hence, separately. conclude ed assault we beyond a unless it was convinced reasonable entitled to have the that Alsanea not alleged doubt that both crimes arose out of jury give requested court instruc- district acts, separate accompanied distinct each and tion that no has been shown error specifically intent. This criminal Court so. district court’s refusal to do Spurr’s reach Fifth Amendment declined to and, instead, reasoning question based its D. Sentence Review solely upon statutory ground. repealed Section 18-301 was Idaho Code sen Alsanea next asserts that his 13, February 1995 Idaho Ses- 1995. See light of of tences are excessive in his lack 16, Law, § sion ch. 1. The state contends convictions; support of friends criminal that, holding because the basis of the Court’s attributes; family; positive impaired law, Spurr longer no is .Alsanea’s capacity appreciate criminality of his jury not requested instruction was an accu- appellate of An review a sentence conduct. rate statement of the law and the dis- is on an of discretion standard. based abuse refusing it. give trict not err court did Burdett, 271, 276, 1 P.3d v. 134 Idaho that, responds although 18- 299, (Ct.App.2000). is Where sentence 304 repealed, requested 301 was instruc- illegal, appellant has the burden statement of the tion was still accurate unreasonable, and a clear that it is thus show the United States and Idaho law because Brown, 121 v. of discretion. State abuse protect against Constitutions also double (1992). 393, 482, 385, A 490 Idaho
jeopardy. may represent of such an abuse sentence Assuming, deciding, that without if it is to be unreasonable discretion shown ' requested jury instruction was an Nice, 103 upon State v. the facts the case. law, of the Alsanea was accurate statement (1982). 323, 89, 90, A 324 Idaho give court it. not entitled to the district if it of confinement reasonable sentence multiple against Offenses committed victims sentencing that con appears at the time of same, jeopardy pur are for double accomplish pri necessary finement is “to though poses, they arise from the even society objective protecting mary Pratt, episode. same criminal See State v. goals all the related achieve (1993). 560, 800, 546, P.2d 814 125 Idaho 873 deterrence, ap rehabilitation or retribution single act of is committed Where a violence Toohill, 103 plicable given v. to a case.” State person to harm more than one with an intent (Ct.App. P.2d 710 650 likely more one or with means to harm than 1982). contends that the appellant Where victims, multiple multi person, results excessively sentencing imposed an permit ple punishments are warranted sentence, independent conduct an we harsh Lowe, 391, 393, 816 ted. State v. record, having regard of the review A defendant P.2d offense, the character nature of intentionally persons threatens several who public protection the. offender and having injury or death is viewed as with Reinke, interest. State resulting upon victims. See acted each 1183, 1185(Ct.App.1982). Applying prohibition id. The federal constitutional standards, reviewing the rec after these apply under against jeopardy does not double case, that Alsanea’s ord in this we conclude James, these circumstances. See State' not unreasonable or excessive sentences are (Utah 1981). Because we P.2d has been no abuse of discretion and that prohi constitutional conclude that federal shown. inapplicable, hold that the Idaho bition is we
E. Rule Motion it has caused the enhanced sentence to be *12 improperly. Id. If a defen- administered argues Alsanea that district court improperly, dant’s sentence is administered denying erred in his Rule 35 motion for may by petitioning for a he or she seek relief illegal pro- an correction of sentence. When corpus. writ of habeas Id. sentence, nouncing Alsanea’s the district court stated: case, In the instant the maximum going impose I’m to a sentence of ten possible aggravated sentence for on a assault 1, years years fixed Count ten fixed §§ years. officer is ten See I.C. 18- 2, years on Count fifteen con- consecutive -915(b). 906, If that sentence is enhanced secutive but indeterminate on the firearms firearm, possible for use a maximum charge; year one consecutive indetermi- term defendant to a could be sentenced is protection nate on the domestic violence twenty-five years. If 19-2520. See
order; six months consecutive indetermi- Alsanea’s sentences for the count of second remaining nate on the misdemeanor. aggravated assault and the firearm enhance judgment Alsanea’s of conviction likewise ment are construed as one continuous sen provided enhancement, that for the firearm tence, be, they practical as must effect is a was sentenced to “indeterminate the same as if had been sentenced to period (15) custody up years to fifteen twenty-five years, including a unified term of to consecutive” his for sentence the second enhancement, the firearm with a minimum aggravated count of assault. period years. of ten confinement Such a Alsanea filed a Rule 35 motion to correct permissible is a sentence under the sentence sentence, illegal an claiming that the district Hence, applicable statutes. Alsanea’s sen erroneously imposed court separate, con- illegal purposes tences were not for of Rule secutive sentence for his use of a firearm despite terminology the district court’s during aggravated commission of the as- Additionally, pronouncing when them. Alsa saults, enhancing ag- rather than one of his argued nea that has use of the term gravated assault sentences. The district causing “consecutive” is his sentences to be court denied Alsanea’s motion and Alsanea Therefore, improperly. administered we appeals, asserting still his for sentence conclude that not entitled to illegal. use of a firearm arm is relief under Rule 35 and the district court did illegal An sentence under Rule by denying not abuse its discretion his Rule 35 is statutory provision one excess of a when, If, 35 motion. there a time comes contrary applicable otherwise law. State inappropriately when Alsanea’s sentences are Lee, 738 administered, remedy peti would tobe (Ct.App.1989). legality of a is sentence corpus. tion a writ of habeas Camar See question of law over which we exercise free illo, Idaho at 1256. inap review. The term Id. “consecutive” is propriate referring when to a en sentence
hancement for use of a firearm. III. Camarillo, connote, It CONCLUSION inaccurately, separate existence two prior bad acts evidence was not rele- that, sentences. Id. It is well re established vant of im- gardless officers’ well-founded fear terminology employed, a fire arm minent or to Alsanea’s com- part single violence intent enhancement sen Therefore, Although mitting the assaults. tence. Id. the enhancement must However, specifically review, appellate the evidence was not admissible. identified for evidence, the base sentence and the there was substantial aside enhancement evidence, should be construed as one continuous sen irrelevant bad acts dem- Accordingly, onstrating guilt. tence. Id. the mere of a choice We are convinced possibly inappropriate give beyond word does not doubt the com- reasonable relief, plained-of rise to a showing testimony Rule absent did contribute LANSING, concurring Judge in the jury’s in admit- Chief verdicts and that error result. testimony ting the was harmless. disagree majority respectfully I with the right
Alsanea has failed to show of Alsanea’s harass- view that evidence interpreter was The district waived. particularly girlfriend, his former ment of appointed interpreter to assist Alsa- previously that he had threatened evidence obligation monitor under no nea son, was irrelevant and to shoot her their interpreter once one made his use *13 view, erroneously my admitted. therefore Therefore, we available to assist Alsanea. of this evidence was relevant on issue no error of the district court conclude that pulled intent when he Alsanea’s has been shown. his waistband. assuming requested Alsanea’s Even past girl- Alsanea’s threats toward jury of instruction was an accurate statement friend not isolated incidents unrelated were law, type applicable it of was not charged which to the behavior for he was alleged Ad- charges and facts involved here. Rather, they with assault on the officers. ditionally, district court did instruct the part ongoing of were of course harass- required each jury that to consider it was continuing evening was still ment that separately. aggravated of Ac- count assault when the inter- of December cordingly, we conclude that Alsanea not new of thereby vened and became the focus give entitled district threatening behavior. evi- Alsanea’s error has requested instruction no earlier, related, but con- dence of Alsanea’s shown in the district court’s refusal to been carrying he was not suggests duct do so. weapon question for night on the some purpose purpose for the of us- innocent but reviewing applying After the record and It ing supports it or do to intimidate violence. applicable to this re- the standards Court’s that when reached for the inference sentence, of a we conclude that Alsa- view it intent gun, was Alsanea’s to threaten are unreasonable or ex- nea’s sentences Therefore, the evidence rele- officers. no of district cessive and that abuse vant, particularly in view of Alsanea’s claim has shown. Addition- court’s discretion been weapon in to hand grasped that he order not ille- ally, because Alsanea’s sentence was Rule of Evi- it the officers. Under 35, despite gal purposes for of Rule “any if it evidence is relevant has dence imposition of a district court’s “consecutive” tendency fact to make existence fifteen-year use of consequence term for indeterminate to the determination firearm, probable argument probable has made or less and no been action more evidence.” being than would without that Alsanea’s sentence is administered past testimony about Alsanea’s threats that Alsanea improperly, we also conclude this girlfriend child meets shoot under Rule 35 and was not entitled relief Accordingly, I hold that would threshold. its dis- the district court did abuse erroneously was not admitted. the evidence by denying his Rule 35 cretion motion. opinion. I concur with the lead otherwise judgments and sen- of conviction Alsanea’s counts assault tences two officer, use a firearm
on law enforcement crime, of a
during commission of a violation order, entry are af- and unlawful
no-contact deny- district court
firmed. The order to correct an
ing Rule 35 motion also affirmed.
illegal sentence is
Judge concurs. GUTIERREZ