Valentino Herrera was convicted of battery on a peace officer, with a sentence enhancement for being a persistent violator of the law. Herrera raises numerous claims of error, including a contention that the State’s evidence did not show the alleged victim had been a peace officer.
I.
FACTS AND PROCEDURE
The following events were described in the State’s evidence at Herrera’s trial. In June of 2006, Herrera and Alan Garrett, who was a former Cassia County sheriffs deputy and court bailiff, were both incarcerated in Cassia County for unrelated criminal charges. While Garrett was wiping down tables after breakfast, he moved Herrera’s coffee cup. This angered Herrera, who commentеd to another inmate that Garrett had previously “cost [him] five years” and “he put me in prison.” Garrett tried to calm Herrera down but was unsuccessful. Herrera then threw hot coffee in Garrett’s face, hit him in the face with the coffee mug, punched Garrett in the face and gouged his eye. During the altercation, Herrera called Garrett a “narc cop.”
The State charged Herrera with battery, Idaho Code § 18-903, enhanced from a misdemeanor to a felony pursuant to former I.C. § 18-915(d) (2001), on the allegation that the battery was committed because of Garrett’s former status as a “peace officer.” The State later filed an amended information seeking a persistent violator sentence enhanсement.
Prior to trial, Herrera filed a motion to dismiss the charge, contending that Garrett had not been a peace officer, but instead had been a bailiff, when Herrera’s animosity towards Garrett arose, and therefore the charging enhancement could not apply. The district court denied the motion, concluding that one could be both a peace officer and a bailiff.
On the morning of trial, Herrera filed a motion to dismiss the amended information
After the jury returned a guilty verdict on the charged offense, Herrera’s counsel admitted that Herrera was a persistent violator by stipulating that Herrera had thrice previously been convicted of felonies. However, on Herrera’s post-trial motion, the district court set aside the persistent violator admission because the court had not asked Herrera personally whether he wanted to plead guilty to the sentencing enhancement. At a new trial on the persistent violator allegation, Herrera was again found to have at least two prior felony convictions. The district court imposed a term of imprisonment of thirty years with ten years fixed.
Herrera appeals.
II.
ANALYSIS
A. Motion to Dismiss
Prior to trial, Herrera filed a motion to dismiss the charge. He asserted that Gаrrett’s former service was as a bailiff and not as a peace officer even though he also had been a deputy sheriff, and therefore the provisions of Idaho Code § 18 — 915(d), enhancing the offense to a felony, could not apply. The district court denied the motion, holding that the two terms were not mutually exclusive and that one could be both a peace officer and a bailiff. The district court said: “I believe it’s possible that in some situations in some counties bailiffs might not be peace officers, but I think based upon the facts in this case the alleged victim Mr. Garrett was.” Herrera claims error.
Herrera’s argument is that because Idaho Code § 18-915 refers to peace officers and bailiffs in the disjunctive, as a matter of law the two offices are mutually exclusive and a person cannot be both, either simultaneously or sequentially. This argument carries no logic and therefore demonstrates no error in the denial of his motion.
B. Sufficiency of the Evidence at Trial
Herrera next contends that the State did not introduce sufficient trial evidence to prove that Garrett was a former peace officer. Appellate review of a challenge to the sufficiency of the evidence is limited. A jury verdict will not be set aside if it is supported by substantial and competent evidence upon which a rational trier of fact could find all elements of the crime beyond a reasonable doubt.
State v. Thomas,
Herrera’s argument here involves the interplay between three statutes, the first of which is I.C. § 18-915, which, at the time of Herrera’s alleged offense, provided:
Assault or battery upon certain personnel — Punishment.—Any person who commits a crime provided for in this chapter against or upon a justice, judge, magistrate, prosecuting attorney, public defender, peace officer, bailiff ... and the perpetrator knows or has reason to know of the victim’s status, the punishment shall be as follows:
(a) For committing battery with intent to commit a serious felony the punishmеnt shall be imprisonment in the state prison not to exceed twenty-five (25) years.
(b) For committing any other crime in this chapter the punishment shall be doubled that provided in the respective section, except as provided in subsections (c) and (d) of this section.
(d) For committing a violation of the provisions of section 18-903, Idaho Code ... against the person of a peace officer,sheriff or police officer because of the victim’s former or present official status, the offense shall be a felony punishable by imprisonment in a correctional facility for a period of not more than five (5) years, and said sentence shall be served consecutively to any sentence being currently served.
(emphasis added). The other two statutes are not in the criminal code but are part of Title 19, Chapter 51 of the Idaho Code, which establishes a training program for Idaho law enforcement officers. One of these statutes, I.C. § 19 — 5101(d), defines “peace officer” as used in that chapter to mean, in relevant part, “any employee of a police or law enforcement agency which is a part of or administered by the state or any political subdivision thereof and whose duties include and primarily consist of the prevention and detection of crime and the enforcement of penal, traffic or highway laws of this state or any political subdivision.” The final statute is I.C. § 19-5109(3) 1 which provides in part:
No peace officer shall have or exercise any power granted by any statute of this state to peace officers unless suсh person shall have been certified by the council within one (1) year of the date upon which such person commenced employment as a peace officer, except in cases where the council, for good cause and in writing, has granted additional time to complete such training.
Herrera contends that because trial evidence showed that Garrett was first sworn into office as a deputy on October 2, 1989, and was not certified by the Peace Officer Standards and Training Council (POST) until more than one year later on October 24, 1990, and because the State failed to prove that Garrett was granted additional time from the POST Council, by application of Idaho Code § 19-5109(3) the State necessarily failed to prove that Garrett ever had “official status” as a peace officer. Therefore, Herrera reasons, an element of the offense under I.C. § 18-915(d) was not satisfied. On this theory, Herrera asks this Court to reverse his conviction for insufficient evidence.
Herrera’s argument presents an issue of statutory interpretation. The objective of statutory interpretation is to give effect to legislative intent.
State v. Yzaguirre,
Herrera’s argument is untenable. It inherently requires an interpretation of Section 19-5109(3) to mean that if a person is not POST certified within one year of commencing employment as a peace officer, that person can never thereafter have “official status” as a peace officer or be “duly authorized” to be a peace officer; and even if the individual is later POST certified and works as a peace officer for many years, he or she never becomes one. This could not have been the legislature’s intent, and such an interpretation would lead to an absurd result. We construe this statutory provision to meаn that if a peace officer is not POST certified within one year of commencing employment and no extension is granted, the statute precludes the individual from having or exercising any statutory authority as a peace officer until he or she is certified.
Here, the State presented evidence that Garrett was hired by the Cassia County Sheriffs Department in 1989 and worked for that law enforcement agency for over ten years. He sometimes worked as a bailiff at the Cassia County Courthouse, but at other times worked as a peace officer, conducting patrol, making arrests, and signing warrant applications. Garrett wore a uniform and badge and carried a gun. His supervisor testified that Garrett was authorized to enforcе the laws of the state of Idaho and was
Herrera next asserts that the evidence was insufficient to show that he battered Garrett “because of’ Garrett’s former status as a peace officer, as also required by 1.C. § 18-915(d). Rather, Herrera contends, the evidence indicates that he committed the battery because of Garrett’s former work as a court bailiff. He asserts that “the state theorized that Mr. Herrera believed Mr. Garrett sent him away for five years because (in 1995) he signed a [criminal] complaint [against Herrera], in his capacity as a bailiff.” This claim of error has no merit for two reasons. First, contrary to Hen-era’s implication, no evidence was presented that Garrett signed the complaint against Herrera “in his capacity as a bailiff.” Second, it was not necessary for the State to prove that the precipitating motive behind Herrera’s attack was thаt Garrett signed a complaint. The State needed only to prove that the battery was committed “because of’ Garrett’s former official status as a peace officer. Here, trial testimony indicated that Herrera called Garrett a “narc cop” during the battery. This is sufficient evidence to support the verdict.
C. Jury Instructions
Herrera also contends that the district court erred by not instructing the jury on the definition of “bailiff.” He cites no authority in support of the novel proposition that a court must define in jury instructions a word that was not used anywhere else in the instructions or in the charging documents. Further, Herrera did not request such an instruction, and he makes no claim that the failure to do so constituted fundamental errоr. Issues that have not been preserved by objection in the trial court will not be reviewed on appeal absent fundamental error.
Mintun v. State,
D. Motion for Continuance
At a pretrial hearing, Herrera’s counsel said that he had other court commitments that might conflict with Herrera’s January 3, 2007, trial date. Eleven days later, and six days prior to the trial, defense counsel filed a motion for a continuance of the trial. The attorney, who had been appointed six months earlier, before Herrera’s preliminary hearing, did not contend that he was unprepared for trial but that he had two other conflicting hearings scheduled. He also informed the court that Herrera would not waive his right to a spеedy trial. In response to the court’s inquiries, counsel revealed that his conflicts were pretrial hearings in misdemeanor cases. The district court and the parties all were of the view that Herrera’s statutory right to a speedy trial, see I.C. § 19-3501, required that the trial commence by January 17, 2007. The district court denied the request for a continuance out of concern about Hen-era’s speedy trial right and because defense counsel’s schedule conflicts did not take precedence over Herrera’s trial date. On the morning of the first day of trial, defense counsel told the district court that his conflicts had been resolved.
Herrera posits error in the denial of a continuance. He contends for the first timе on appeal that the district court’s speedy trial concern was unfounded because the first judge assigned to the ease had disqualified himself on October 24, 2006, and pursuant to Idaho Criminal Rule 25(a)(10), Herrera’s six-month speedy trial time began to run anew as of that date. This argument is meritless because Rule 25(a)(10) applies only to dis
qualifications
Moreover, Herrera has shown no prejudice from the denial of a continuance. The refusal of a defendant’s request for a continuance is reversible error only if his substantial rights were prejudiced.
State v. Thorngren,
E. Motion to Dismiss for Failure to Arraign on Amended Information
About three months before trial, the State filed an amended information requesting, for the first time, a persistent violator sentence enhancement pursuant to I.C. § 19-2514. On the morning of the first day of trial, Herrera filed a motion to dismiss the amended information because it had been improperly filed without leave of the district court, see Idaho Criminal Rule 7(e), and because the district court had not arraigned him on the amended сharge. See I.C.R. 10. In response, the prosecutor admitted that Herrera had not been arraigned on the amended charge, but suggested that Herrera would not be prejudiced if the court allowed the amended information to be filed. Herrera responded that “the only way to be sure that Mr. Herrera is aware of his rights is to, of course, have a motion to amend the complaint and then to actually advise Mr. Herrera of his rights as would be permitted — or would be done in any other arraignment.”
The district court treated the prosecutor’s statements as a motion to amend the information and granted it, finding no prejudice to Herrera. The court also arraigned Herrera on the amended charge on the spot. The district court thereby gave Herrera what he requested and, in so doing, effectively denied the motion.
On appeal, Herrera claims that this procedure denied him due process. Herrera argues that it is error to fail to arraign a defendant, while largely ignoring the fact that he was arraigned. The only claim of error he makes with regard to the actual arraignment'is that the district court failed to inform him that he was “entitled to have at least twenty-four hours to consider his plea on the amended information” and that “this advice was required to make the arraignment meaningful.” Herrera relies upon Idaho Criminal Rule 10, but that rule does not say that a trial court must advise a defendant of such information. Instead, the rule stаtes: “If on the arraignment the defendant requires time to enter a plea, the defendant must be allowed a reasonable time, not less than one (1) day, within which to answer the indictment or information.” (Emphasis added.) Herrera did not indicate that he needed additional time to plead not guilty. Herrera has shown no actual prejudice from the late arraignment or from any defect in the arraignment colloquy itself. Therefore, he has shown no violation of Idaho Criminal Rule 10 and no deprivation of due process in the arraignment that was conducted.
Herrera also asserts that the district court erred by allowing the late filing of the amended information. His appellate argument implies that until the day of trial, he wаs entirely unaware that the amended information containing a persistent violator al
legation
Idaho Criminal Rule 7(e) authorizes the court to allow amendment of an information at any time before the prosecution rests “if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” The rule’s reference to prejudice to substantial rights means prejudice to the defendant’s ability to defend against the charge.
See State v. Severson,
Moreover, Herrera’s claim that he had no opportunity to engage in plea negotiations while being aware of the persistent violator enhancement is disproven by his own statement at his first sentencing hearing on October 27,2008, where he said:
[Wjhen I was first aware of the amended charges back in 2006 I wasn’t given a lot of time to consider a deal offered by the State at that time. And it was — I mean, 30 minutes isn’t a whole lot of time to give, you know, adequate consideration to the rest of your life. And that’s exactly what the State was asking: We’ll give you five years if you plead guilty now. We’ll drop the persistent.
These statements establish that Herrera did, in fact, have an opportunity to engage in plea negotiations after learning that the State would file or had filed the persistent violator enhancement. Thus, the factual basis for his claim of prejudice is disproven by the record.
F. Prosecutorial Misconduct
Herrera next asserts as error three instances of alleged prosecutoriаl misconduct. The first is the prosecutor’s statement during closing argument that “if the defendant has shown any reasonable doubt it’s your duty to convict, and that’s what I’m asking you to do.” 3 Herrera objected, asserting that “the defendant has no burden to show any reasonable doubt.” The district court responded to defense counsel “that’s in the nature of argument and you can certainly argue that if you wish.”
It is prosecutorial misconduct to misrepresent the State’s burden to prove an accused’s guilt beyond a reasonable doubt.
State v. Phillips,
Nevertheless, this error will not warrant relief on appeal if it was harmless. The State bears the burden of persuading the appellate court “beyond a reasonable
If there’s one thing that needs to be clear, it’s that the State of Idaho has the burden in this case. Mr. Herrera does not have the burden of proving anything. The State of Idaho has the burden of proof of not only proving that this crime was committed, but they also havе the burden to prove beyond a reasonable doubt that self defense was not used by Mr. Herrera. I want that to be crystal clear at this point.
Then in his rebuttal closing argument, the prosecutor told the jury:
[Defense counsel is] certainly right that the State has the burden of proof. That’s my job. I don’t disagree with that at all. The defendant doesn’t have to put on a single shred of evidence. I have no problem with being required to prove a case beyond a reasonable doubt.
In light of the parties’ clear agreement on the burden of proof, and a jury instruction in accord that had been given prior to the closing arguments, we are confident beyond a reasonable doubt that the prosecutor’s misstatement hаd no effect on the verdict and was harmless.
Herrera argues, however, that the prosecutor’s misstatement constitutes reversible error regardless of the absence of any identifiable prejudice. He refers to the holding of
Sullivan v. Louisiana,
Herrera next cоntends that the prosecutor committed misconduct in his closing argument by relying on testimony that he knew was not true. This issue concerns the number of felonies for which victim Garrett had been convicted. At Herrera’s preliminary hearing, the prosecutor asked Garrett whether he had been “convicted of felony thefts and driving under the influence of alcohol?” Garrett answered: “Correct.” At the subsequent trial, the prosecutor elicited testimony from Garrett that he was currently residing in the penitentiary on a sentence for felony driving under the influence. Neither the prosecutor nor defense counsel asked Garrett at trial whether he had any other felony convictions on his record. During closing argument, Herrera’s trial cоunsel attacked Garrett’s credibility, pointing out that he had been convicted of a felony and “put himself in prison.” In rebuttal, the prosecutor responded by saying:
[I]f [defense counsel] wants to look at people’s pasts, you’ve got a victim with one felony conviction and a defendant with three. 4 Who’s more or less credible? Yet I’m not sure we really need to get into that. Alan Garrett’s testimony was corroborated by more than one witness.
Herrera contends that this argument was improper because, based'on Garrett’s preliminary hearing testimony, the prosecutor knew he had been convicted of more than one felony.
Defense counsel, who also had represented Herrera at the preliminary hearing, did not object to the prosecutor’s statement that Garrett had only one fеlony conviction. Trial error ordinarily will not be addressed on appeal unless a timely objection was made in the trial court.
State v. Adams,
In its recent opinion in
Perry,
(1) the defendant must demonstrate that one оr more of the defendant’s unwaived constitutional rights were violated; (2) the error must be clear or obvious, without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision; and (3) the defendant must demonstrate that the error affected the defendant’s substantial rights, meaning (in most instances) that it must have affected the outcome of the trial proceedings.
Id.
at 226,
According to
Perry,
“Where a prosecutor attempts to secure a verdict on any factor other than the law as set forth in the jury instructions and the evidence admitted during trial, including reasonable inferences that may be drawn from that evidence, this impacts a defendant’s Fourteenth Amendment right to a fair triаl,” and hence is reviewable as fundamental error.
Perry,
Herrera’s argument is flawed, for it is predicated on an assumption that the preliminary hearing testimony is more accurate than the trial testimony regarding the number of Garrett’s felony convictions. Because Herrera did not cross-examine Garrett about any additional felonies nor object to the prosecutor’s comment in closing argument, the number of felony convictions that Garrett had sustained is unknown. It is entirely possible, as the State posits, that after the preliminary hearing the parties realized that Garrett had only one felony conviction. It follows that this claim of prosecutorial misconduct does not satisfy the second prong of the Perry test for fundamental error because the claimed error is not clear or obvious. Additional information not contained in the appellate record is needed in order to determine whether the prosecutor’s argument was inaccurate.
Finally, Herrera contends that the prosecutor committed misconduct at trial by asking him on cross-examination whether other witnesses had lied under oath. Herrera did not object. In
Perry,
our Supreme Court held that “where ... the asserted error relates not to infringement upon a constitutional right, but to violation of a rule or statute ... the ‘fundamental error’ doctrine is not invoked.”
Id.
at 226,
G. ■ Error in the Admission of Documentary Evidence at the Persistent Violator Trial
At Herrera’s separate trial on the persistent violator sentence enhancement, the State alleged that he had three prior felony convictions. In addition to cоpies of the judgments of conviction for those offenses, the State also proffered a copy of a bench warrant in one of the eases and the criminal complaint in another. The State did so because the additional documents reflected Herrera’s date of birth and social security number, while the judgments of conviction did not. The additional documents were therefore relied upon to establish that the judgments in those cases referred to Herrera and not to another person of the same name.
See State v. Medrain,
On appeal, Herrera argues that the district court erred by not redacting from the documents largely unspecified “unfairly prejudicial” information before admitting them. For two reasons, this claim is meritless. First, Herrera did not preserve this claim of error because he did not ask the district court to redact any information from the documents, but instead sought their wholesale exclusion.
See State v. Cannady,
Second, even if he had preserved his current complaint, the probative value of the identity evidence in the documents was very substantial while the danger of unfair prejudice, with respect to the only issue before the jury, was virtually non-existent. Evidence is not unfairly prejudicial simply because it is damaging to a defendant’s case; it is unfairly prejudicial when it suggests decision on an improper basis.
State v. Pokorney,
H. Restitution
Herrera next asserts that the district court erred by ordering that he pay “restitution” to
III.
CONCLUSION
Herrera has shown no reversible error in the denial of his various motions, in his trial on the substantive charge, or in admission of evidence at his trial on the persistent violator sentence enhancement, and we conclude that the trial evidence was sufficient to support the jury’s verdict finding Herrera guilty of battery on a peace officer. Therefore, the judgment of conviction and sentence are affirmed.
Notes
. In 1990, when Garrett was POST certified, the subsection was codified as I.C. § 19-5109(c).
. Our interpretation of Idaho Code § 19-5109(3) also disposes of Herrera’s argument that the court erred in denying his motion for a new trial, which was predicated upon "newly discovered evidence” that the POST Council had not granted Garrett an extension of time to complete his POST training.
. As the State notes on appeal this statement, as it appears in the trial transcript, does not make sense.
. At trial it was revealed that Herrera had three prior felony convictions.
. The State correctly notes that a mere clerical error is involved. The order for reimbursement, drafted by the prosecutor, cites the general restitution statute, I.C. § 19-5304, as the authority for the order rather than the correct statute authorizing reimbursement for a psychological evaluation, I.C. § 19-2522(1).