STATE of Idaho, Plaintiff-Respondent, v. James Patrick STELL Jr., Defendant-Appellant.
Docket No. 43967
Court of Appeals of Idaho.
October 5, 2017
405 P.3d 612
142, 148 (1999) in support of his argument that he is entitled to attorney fees. However, the Court in Bowles held that because one of the respondents “is the attorney of record on appeal for all respondents, including himself . . . an award of attorney fees is inappropriate” to the extent that the respondent “has represented himself on appeal.” Id. at 377, 973 P.2d at 148. Here, also, Erickson represented himself. While Erickson may have paid an attorney for legal advice, an attorney never filed a notice of appearance on Erickson‘s behalf or represented Erickson. Accordingly, Erickson is a pro se litigant.
Erickson also requests costs on appeal. Because Erickson is the prevailing party on appeal, we award costs pursuant to
III.
CONCLUSION
The district court erred in dismissing Erickson‘s appeal because the briefing schedule was invalid and unenforceable. We vacate the district court‘s order dismissing the intermediate appeal and remand for further proceedings. Costs to Erickson on appeal.
Judge MELANSON and Judge HUSKEY concur.
Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford, Deputy Appellate Public Defender, Boise, for appellant. Jenny C. Swinford argued.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
James Patrick Stell Jr. appeals from his judgment of conviction after a jury returned a guilty verdict for aggravated assault, with a deadly weapon enhancement; malicious injury to property; possession of drug paraphernalia; and carrying a concealed weapon while under the influence. Stell first argues the trial court erred in admitting an audio recording of his arrest into evidence because it was irrelevant and prejudicial. Stell further argues that even if the recording is relevant, the trial court‘s failure to perform an
I.
FACTS AND PROCEDURE
During trial, the State presented testimonial evidence that on March 6, 2015, Stell and the victim began arguing at the victim‘s house. The argument resulted in Stell leaving the house on foot. The victim followed by car, requesting Stell return. Eventually, the victim drove to a park, while Stell walked to the residence of two friends: a male and a female. Based on Stell‘s behavior and level of agitation, the male friend believed Stell had been drinking.
Upon arriving at the residence, Stell asked the male friend to take Stell to the gas station to purchase beer. Stell and the two friends drove to the gas station, where Stell bought a 40-ounce bottle of malt liquor. As the three drove back, Stell threw the victim‘s cellular phone out the window of the van. Officers later found the phone in the street, broken into three pieces. Stell then saw the victim in a parking lot and asked the male friend to pull over. Stell and the victim began arguing, and Stell eventually slammed the victim‘s passenger door, pointed a gun at the car, and finally got back into the van with the two friends. Both friends testified that Stell was very upset; saying he was going to kill the victim. Additionally, both friends believed Stell had a gun and saw what appeared to be a gun. Moreover, the three aimlessly drove around town because, based on Stell‘s behavior, the male friend did not want to take Stell to the house where the male friend‘s two children were.
After observing the interaction at the park between Stell and the victim, a resident across the street called 911. In both her testimony and in the 911 recording, the resident described a man yelling at someone inside a car and pointing a gun at the car as it drove away. Police responded to the 911 dispatch call, searching for a white minivan. Officers eventually found the minivan in front of the two friends’ residence. When officers arrived, Stell was inside the house, in the bathroom. As police went to the rear of the residence, Stell emerged from the bathroom window. Stell was handcuffed, read his Miranda1 rights, and placed in a police car.
As the arresting officer gave Stell Miranda warnings, Stell interrupted the officer, making various statements, and three times requested a lawyer. The entire exchange was audio recorded and the State sought introduction of a redacted version. Stell objected based on relevance and prejudicial effect. The district court overruled the objection, and the jury listened to the redacted audio recording, including Stell‘s repeated request for an attorney.
Immediately following Stell‘s arrest, officers found a pink and black backpack under a pile of dirty clothes inside the bathroom Stell had just crawled from. Both friends testified that no one in their household owned the bag and that they believed it belonged to Stell. The backpack contained rubber gloves, duct tape, zip ties, three smoking pipes, a lighter, a cell phone, ammunition, and a loaded gun.
In addition to witness testimony, the State presented the 911 call reporting Stell‘s interaction with the victim at the park. The State also presented physical evidence for the jury to consider. The physical evidence included a picture of the vantage point of the 911 caller‘s house in relation to the park. Additionally, the State presented evidence of the contents of the backpack found in the bathroom, which included three pipes, one testing positive for THC, and a gun in its holster and ammunition. Also presented were pictures of a partially drank malt liquor bottle and pictures of the victim‘s fractured phone.
Stell did not take the witness stand, and the defense presented no testimonial or physical evidence. Stell filed a motion for judgment of acquittal, under
II.
ANALYSIS
A. Admission of the Audio Recording
At trial, after hearing the officers’ testimony regarding Stell‘s apprehension and arrest, the district court admitted a redacted version of the audio recording of that same interaction. Stell argues the audio recording is irrelevant and prejudicial.2 Specifically Stell argues the evidence amounts to improper character evidence and that the district court failed to conduct an
The State argues to the contrary on all issues raised by Stell and further submits that any error in the admission of the audio recording was harmless. In support of its harmless error argument, the State points to the overwhelming evidence presented during trial indicating Stell was guilty of all four offenses. Assuming any errors raised exist, we determine that the harmless error analysis is dispositive of the audio recording evidentiary issue raised.
Error is not reversible unless it is prejudicial. State v. Stoddard, 105 Idaho 169, 171, 667 P.2d 272, 274 (Ct. App. 1983). With limited exceptions, even constitutional error is not necessarily prejudicial error. Id. Two standards are employed when reviewing alleged errors on appellate review: harmless error and fundamental error. State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010). If the alleged error was nonconstitutionally based and was followed by a contemporaneous objection, it shall be reviewed under the harmless error standard. Id. In such a case the defendant has the initial duty to establish that such an error occurred, at which point the burden is on the State to prove that the alleged error did not contribute to the verdict obtained. Id. at 221, 245 P.3d at 973. If the alleged error was not followed by a contemporaneous objection, it shall be reviewed under Idaho‘s fundamental error doctrine. Id. at 227-28, 245 P.3d at 979-80. An appellate court should reverse an unobjected-to error when the defendant persuades the court that the alleged error: (1) violates one or more of the defendant‘s unwaived constitutional rights; (2) is clear or obvious without the need for reference to any additional information not contained in the appellate record (including information as to whether the failure to object was a tactical decision); and (3) was not harmless. Id. at 226, 245 P.3d at 978. Thus, under both standards, the court must ultimately determine if the alleged error was harmless beyond a reasonable doubt.
Stell was convicted of aggravated assault, with an enhancement for firearm use; malicious destruction of property; possession of drug paraphernalia; and carrying a concealed weapon while under the influence. Based on the evidence presented, we are convinced beyond a reasonable doubt that playing the audio recording for the jury, including the portion in which Stell requested a lawyer, did not contribute to the verdict. The jury was provided with overwhelming evidence that Stell threw the victim‘s phone from the vehicle‘s window based on the testimony of the two friends, the victim‘s own testimony, the testimony of the officer who recovered the broken phone, and the photographs of the victim‘s phone. Likewise, the jury was presented with substantial evidence that Stell possessed drug paraphernalia based on the three pipes found in the backpack and the two friends’ testimony that the backpack most likely belonged to Stell. Similarly, based upon the testimony of the
B. Denial of Idaho Criminal Rule 29 Motion
Stell also argues the trial court erred by denying his
Stell concedes there is sufficient evidence that he carried a concealed weapon; however, he contends that there was insufficient evidence that he was intoxicated or under the influence. Stell was charged under
This Court exercises free review over the application and construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a statute is plain and unambiguous, this Court must give effect to the statute as written, without engaging in statutory construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be given its plain, obvious, and rational
Both parties agree the definitions of “intoxication” and “under the influence” provided in Black‘s Law Dictionary are appropriate definitions. Black‘s Law Dictionary defines “intoxication” as “a diminished ability to act with full mental and physical capabilities because of alcohol or drug consumption.” BLACK‘S LAW DICTIONARY 950 (10th ed. 2014). “Under the influence” is defined as “deprived of clearness of mind and self-control because of drugs or alcohol.” BLACK‘S LAW DICTIONARY 1759 (10th ed. 2014). Accordingly, Stell must have been mentally and/or physically impacted by the consumption of drugs or alcohol.
The State presented sufficient evidence for a reasonable jury to conclude that Stell was intoxicated and/or under the influence. Based on Stell‘s behavior and level of agitation, the male friend believed Stell had been drinking before Stell first arrived at the house. The male friend drove Stell to the gas station to purchase alcohol. Stell purchased and drank malt liquor prior to being arrested.
Additionally, two officers present at Stell‘s arrest smelled alcohol on Stell‘s breath as they handcuffed Stell, after he exited the bathroom attempting to evade the police. Though the arresting officer was unsure of the exact level of intoxication the statute prohibits, the officer could tell Stell had been drinking.3 To support the belief that Stell was intoxicated, the arresting officer identified the witness statements, the bottle of malt liquor, the odor of alcohol on Stell, and the firearm.
There was also testimony regarding Stell‘s erratic behavior. Stell was upset and yelling. The nearby resident called 911 and reported that Stell had pointed a gun at a car as it drove away. Based on Stell‘s condition, the male friend did not want to bring Stell back to the house because the male friend did not want Stell around the male friend‘s children. Stell crawled out a bathroom window to evade the officers. Stell told the officers to shoot him. Stell made statements regarding suing the officers. Finally, while being handcuffed, Stell told officers he was not wearing any underwear.
Based on the evidence presented, although conflicting, the jury could reasonably find that Stell‘s mental and physical capabilities were diminished such that he was deprived of clearness of mind and self-control because of his alcohol consumption. Accordingly, the State presented substantial evidence meeting its burden of proving beyond a reasonable doubt that Stell was intoxicated while carrying a concealed weapon. The Court cannot substitute its opinion for that of the jury to determine the credibility of the witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn from the evidence. Therefore, the trial court did not err in denying Stell‘s
III.
CONCLUSION
There was overwhelming evidence in the record for the jury to find that Stell was guilty beyond a reasonable doubt of aggravated assault, with a deadly weapon enhancement; malicious injury to property; possession of drug paraphernalia; and carrying a concealed weapon while under the influence. Therefore, any error the district court may have committed on admission of the audio recording was harmless as it did not affect the outcome of the trial. Further, there was substantial evidence for the jury to find beyond a reasonable doubt that Stell was intoxicated at the time he carried a concealed weapon. Thus, the district court did not err in denying Stell‘s
Chief Judge GRATTON and Judge Pro Tem WALTERS concur.