*1 affirm and and him post-conviction award fees costs counsel to assist in the proceeding. separate Ortiz also filed a Swank. mo- indigency
tion and affidavit of for counsel citing SWANSTROM, J., McQUADE, appointed, to be I.C.R. 44 J. Tern, right basis for his to counsel. Pro concur. provides 19-4904
Idaho Code § seeking petitioner post-conviction relief court-appointed entitled to counsel if he has pay Here, no for means to counsel. Ortiz required showing indigency made the of counsel, appoint his motion to of 19-4904; rely although he did not on I.C. § ORTIZ, Petitioner-Appellant, Gustavo but the district court did not rule his on motion. v. Idaho, court Respondent. district ordered a conditional
STATE of 18, petition Ortiz’s May dismissal of No. 20070. 1992, its summary and entered of order dismissal ever addressing without Ortiz’s Appeals of Court of Idaho. request court-appointed attorney. for 1, July 1993. our review Accordingly, of the merits of post-conviction
the dismissal of the petition State, must be forestalled. Henderson v. 844 P.2d We vacate order of dismissal of the petition post-conviction for relief and re- Chavez, Caldwell, appellant. Ismael for mand to the district court for action opinion. accordance this EchoHawk, Gen., Larry Atty. Thomas P. Watkins, Gen., Deputy Atty. for respon-
dent.
PER CURIAM.
Gustavo appeals summary Ortiz from petition of post-conviction
dismissal his for alleging
relief ineffective assistance counsel. We vacate the dismissal order Idaho, Plaintiff-Respondent, STATE of remand of Ortiz’s consideration request court-appointed counsel which BRONNENBERG, prior A. should have been to dis- Sue determined Defendant-Appellant. posing post-conviction petition. of the pled When he guilty in to sexual No. 19769. child, of a represented by abuse Ortiz was Appeals Court of Idaho. public defender’s He was con- office. custody
victed and sentenced to July 1993. Board Correction for a of two to term eight years. appeal No direct his taken,
conviction and and he sentence was been
has incarcerated since the date of his post-conviction petition,
conviction. his
Ortiz enumerated how he had been denied counsel,
the effective assistance and he request court-appointed
included a *2 Greene, Sandpoint, appel- for
Bruce H. lant. Gen., EchoHawk, A. Atty. Douglas
Larry
Gen., Boise,
Werth,
re-
Deputy Atty.
argued.
spondent. Douglas A. Werth
WALTERS,
Judge.
Chief
guilty
A.
was found
Sue
offense of driv-
of the misdemeanor
of alcohol. On
ing under the influence
appeal,
contends that
judg-
erroneously denied her motions
argues
also
acquittal. She
ment of
failing
to instruct
erred
concerning uncontradicted testimo-
below,
stated
ny. For the reasons
af- He demonstrated the test to Bronnenberg
firm.
her to
asked
start.
officer testi-
fied that
failed walk heel-
stopped
police
to-toe,
steps
and took small
instead. After
the evening
speeding.
officer at 11:30in
around,
stopping
turning
she could not
her,
questioned
As the officer
he detected
*3
steps
many
remember how
to take back.
Bronnenberg
an
and
odor of alcohol
asked
by telling
jury
The officer concluded
the
if
drinking.
she had been
answered
She
upon
that based
these observations he de-
had,
that
the
her
she
and
officer asked
to
Bronnenberg
to
driving
cided
arrest
sobriety
upon
submit to field
tests. Based
under the influence.
performance,
his
of her
the
observations
Bronnenberg
driving
officer arrested
When the state
Bronnenberg
rested
Bronnenberg
while under
influence.
the
judgment
for a
acquittal
moved
on the
request by
refused to
to a
the offi-
submit
ground that the
prove
state had failed to
cer for a breath-alcohol test and no other
against
magistrate
its
her.
case
The
de-
chemical analysis of her alcohol content
Bronnenberg
nied the motion.
then took
performed.
in
the witness stand
her own defense. She
night
question,
that on
in
testified
the
she
Bronnenberg
formally charged
with
spent
a bar where
misdemeanor
over five
while under the influ-
alcohol,
drinking
ence of
hours
four
She
pled
I.C.
18-8004. She
beers.
said she
§
guilty
not
jury.
and was tried before a
The did not know whether she was speeding on
arresting
state
only
way
called the
officer
its
lights
as
the
home because the
in her
Bronnenberg
witness. He testified that
provided
were out.
also
dashboard
She
speeding,
that she
drink-
admitted to
explanations
performance
for her deficient
ing,
agreed
perform
and that
a
to
ser-
scared,
sobriety
of the
tests—she was
ies of
field-sobriety
reciting
standard
tests:
tongue-tied,
previous
and
from
suffered
in-
foot,
alphabet, balancing
the
on one
and juries
her
to
knees and ankles. She also
walking
explained
The
heel-to-toe.
officer
although
stated that
had
consumed al-
to
jury
purpose
the
that the
for administer-
night
cohol
the
in question,
it had not
ing these tests is to observe the driver’s
her ability
affected
to drive.
skills,
motor
to determine
the driv-
whether
At the close of all
evidence
the
Bronnen-
instructions,
er is able to follow
to test the
berg
her
for a judgment
renewed
motion
memory,
driver’s
and to determine whether
acquittal,
again
which the court
denied.
the driver can coordinate his
mental
or her
Bronnenberg
then
jury
that the
physical
He reported
skills.
that Bron-
concerning
be instructed
uncontradicted
nenberg
complete
alpha-
to
unable
the
testimony. Specifically, Bronnenberg re-
bet, although she had
that
indicated to him
quested
jury
the
be advised that
it
she knew it. He said he then demonstrated
accept
positive,
“must
as true the
uncontra-
balancing
the one-foot
test
Bron-
and asked
dicted
of a credible witness un-
nenberg if
any problems
she had
her
inherently improbable
the same is
less
or
ankles,
legs
prevent
feet or
that would
her
so
facts
rendered
and circumstances
reported
it.
performing
at the trial.” The
disclosed
re-
began
by lifting only
none. She
the test
give
fused to
the instruction. After its
heel,
her
and the officer had
over.
her start
deliberations,
the
returned
verdict
time,
The
second
her bal-
lost
finding Bronnenberg guilty
un-
ance and took
hold
officer’s shoulder
Bronnenberg appealed
der the influence.
regain
try again.
to
it.
officer
The
had her
court,
to
district
affirmed
the
which
the
By
twenty Bronnenberg
the
had
count of
conviction.
balance,
her
completely lost
fell to her
Court,
right
appeal
further
to this
steps
and had
take several
to re-
On
Bron-
to
First,
gain
nenberg
her
raises two issues.
she con-
balance.
officer testified that
finally
magistrate erroneously
he
asked
to walk heel-
tends that
de-
loud,
steps, counting
acquittal.
to-toe for nine
and nied her motions for
out
assigns
then turn
steps.
magistrate’s
and walk back for seven
She
error to
also
nying
to
must
acquit.
refusal
instruct
motion to
We are not
accept
persuaded.
true.
uncontradicted
these
We address
issues
turn.
18-8004(l)(a)
Idaho Code
pro
§
any
vides
person
is unlawful for
Preliminarily,
“[I]t
we note our stan
who under
the influence of alcohol ...
reviewing
ap
dards for review. When
an
“Driving
drive....”
under the influence”
pellate decision of the district court which
may
proved by
be
direct and circumstantial
decision,
magistrate’s
has
reviewed
Andrus,
evidence. State v.
118 Idaho
examine the record of the
inde
(Ct.App.1990);
Tate,
State v.
of,
for,
pendent
regard
but with due
122 Idaho
upon
district court’s decision. Based
our
necessary
prove
It is not
state
magistrate’s findings
review of the
*4
safely
that the
not
driver could
drive
or
conclusions,
will
re
we
either affirm or
prudently,
only
“ability
but
that
to
her
appellate
verse the district court’s
decision.
impaired by
drive was
the influence
alco
of
119
McNeely,
In re Matter
Idaho
See
of
Andrus,
715,
hol.”
118
at
P.2d
Idaho
800
182,
P.2d
804
911
The stan
impairment
phys
at 111. The
must be of a
reviewing
trial
dards for
the
court’s denial
ical or mental function that relates to one’s
acquittal
a
are
of motion for
of
ability
Id.;
to drive.
see
v.
also State
reviewing
same as
in
the
applied
the
those
Warner,
204,
(1975).
97
977
Idaho
541 P.2d
sufficiency
support
to
a
evidence
Thus,
here,
per
the
se rule is
where as
.10%
Holder,
guilty.
v.
100
verdict of
State
inapplicable
testing
no
because
chemical
129,
(1979);
P.2d
Idaho
594
639
v.
State
performed, “driving
has been
under the
(Ct.
944,
Boag, 118
ment that she did not feel her
impaired by the alcohol had consumed
similarly was offered to the in contradict
ference, evidence, by raised the state’s while under influ short, ence of alcohol. disputed
testified to Her facts. Idaho, Plaintiff-Respondent, STATE of evidence, did not constitute uncontradicted and her assertion contrary to the is without merit. We therefore conclude that there FRY, “Billy” William William A/K/A substantial, though conflicting, evi Pruit, Defendant-Appellant, dence to guilty. a verdict of magistrate properly denied the motions for acquittal. Becker, Justin Defendant. Next, we Bronnenberg’s address No. 19694. challenge magistrate’s to the refusal jury concerning instruct the uncontradicted Appeals Court of of Idaho. A testimony. requested defendant’s in July 1993. need given struction not be if it is an law, erroneous statement is ade instructions,
quately covered other or it supported by
is not the facts of the case. Eastman,
State v. P.2d (1992). above, As discussed the testi
mony uncontradicted, in this case was not disputed
but other circumstantial such, As
evidence. instruc
tion, if even otherwise an accurate state-