*1 Having thoroughly reviewed the record having further considered the
nature of the offenses and Farmer’s charac-
ter, including attempts pro- her two failed
bation, we conclude that the district court did imposing
not abuse its discretion in Farmer’s proba-
sentences the revocation of her
tion.
III.
CONCLUSION
We conclude that the district court’s find-
ing urinalysis reports were credible
and reliable was not erroneous. We that Farmer’s to confrontation was
hold
not violated when the district court admitted urinalysis reports.
the evidence of the We
also conclude that the district court did ordering
err in execution of the sentences
upon revoking probation. There- Farmer’s
fore, affirm court’s the district orders
revoking probation ordering into execu- previously suspended
tion her sentences.
LANSING, C.J., EISMANN, Pro J.
Tern., concur.
STATE JOHNSON, Defendant-
James J.
Appellant.
No. 24332. Appeals Court of of Idaho. Boise, II, for Defen- Joseph Allegria, J. dant-Appellant. Sept. General; Lance, Attorney
Hon. Alan G. Coster, Deputy Attorney Gener- Kimberly A. al, Boise, Plaintiff-Respondent. Kimber- for argued. ly A. Coster PERRY, Judge. appeals from the district J. Johnson
James affirming the memorandum decision court’s *2 809 magistrate’s requiring to un- that Marcum testified at times order Johnson transmitted, testing antigens re- dergo for HIV antibodies or fluids were but then virus, § hepatitis pursuant B 39- position.. I.C. con- treated from that Johnson 604(4). contends that there was Johnson only affirmatively opined tends that Marcum magis- transmitted, insufficient evidence to was finding charged trate’s crime it was unequivocally but never stated one where be trans- likely fluid was transferred. requiring
mitted. We reverse the order a matter of “[a]s The state contends that undergo testing. Johnson to everyday experience, common sense and inescapable inference is that at least some I. saliva was transmitted.” The state testimony witness was not claims AND FACTS PROCEDURE maintains, necessary. the state police Johnson bit a officer on the necessary, even if wearing duty pants long The officer was with up- in this case was sufficient to johns charged underneath. Johnson was magistrate’s findings. hold the officer, police §§ battery with on a 18- I.C. 904, -915, pledguilty. B. of Review Standard requested magistrate
The state
presence
order Johnson to be tested for the
sufficiency
This is a
of the evidence
B,
hepatitis
pursuant
of HIV and for
to I.C.
appellate
case and our
review is limited
39-604(4).
A hearing was
and two
held
scope. Findings
supported by
of fact
sub
testified,
Trauvel,
Deputy
witnesses
the offi-
stantial and
evidence will
bit,
Marcum,
cer who was
and Pam
who is a
appeal.
Co-op.
set aside on
v.
Kootenai Elec.
Department
forensic scientist with the
Co.,
432,
Washington
Power
127
Water
magistrate
Law Enforcement. The
found
(1995).
435,
1333,
magis
901 P.2d
1336
The
fluids had
been transmitted
findings
liberally
trate’s factual
will be
con
and ordered
Johnson be tested at his
judgment,
strued
favor of the
and will not
expense.
stayed,
own
how-
Id.,
be set aside unless
erroneous.
ever, pending appeal.
435,
The district determined jurisdiction appeal that it had to hear the Idaho Code Section reads: decision, original affirming reinstated its magistrate’s requiring any order Johnson to sub- charged All who are testing. again appealed. mit to Johnson has crime in which fluid as defined this
chapter to an- been transmitted presence other shall be tested for the II. antigens hepati- HIV antibodies or and for DISCUSSION Btis virus. A.Arguments added). (Emphasis by We construe statute which, intent, legislative effect to the
Johnson asserts that Marcum’s
possible,
by
plain language
is determined
insufficient
establish
Nunes,
408,
of a
statute. State
transmitted when Johnson
34,
argues
(Ct.App.1998).
958 P.2d
Analysis
D.
Marcum went on to
several times that
fluids could be trans-
knowledge
1. Common
mitted
a bite of this nature.
magistrate
when defense counsel and the
contention,
The state’s first
that it is
Marcum,
questioned
pin
down ex-
knowledge
particular
common
*3
actly
say,
respond-
to
what she intended
she
fluids,
body
persuasive.
transmit
is not
ed:
witness,
expert
state called an
who at times
quantify
That’s
can’t
whether or
[I
qualified
give
that
testified
she was not
to
body
I
transmitted].
not
don’t
matter,
opinion
ques
on
stating
the
anything
know
in the
that—
literature
Moreover,
beyond
expertise.
tions were
her
they’ve
where
done studies on whether—
duty
the bite was made over
happening.
of it
the likelihood
There have
pants
long johns. Although
and
the skin was
pin pricks
where there’s been a
broken,
there was no
that
the
get-
transfer and infections caused. We’re
torn,
pants
long johns
or the
and no
here,
ting beyond my
expertise
area of
pants appears
pictures
tear
getting
I’m
a
also. So
little uncomfortable
disagree
entered as exhibits. We
with the
talking
hap-
on
about the likelihood of it
position
apparent
state’s
that
it is
to the
know,
pening.
my reading
I
talk
from
and
person
body
likely
average
that
fluids
would
talking
Jessy
to
to Dr.
Greenblat
doc—
passed through
clothing.
have
percent-
about this. But I don’t know the
expert’s testimony
must decide whether
you’re
get
I
ages
that
to
from me.
provided
likely
sufficient evidence that it was
anybody
if
don’t know
knows those.
body
that
when
fluids were transmitted
expressed that she
un-
Marcum also
the officer’s
likely
sure
whether
body fluid.
Sufficiency
of
tried to couch in terms
[Prosecutor]: [H]e’s
being likely, meaning
percent
or
during
Marcum stated several times
her
likely.
more is more
than less
And
possible
body
that
that
think,
question,
you
I
he has for
is:
fluids were transmitted when Johnson bit
“likely”, at 51
Under that definition of
Marcum al-
percent meaning likely;
it
a
refused,
ways
ultimately,
wavered and
to af-
pass a
bite that breaks the skin would
firmatively
assert
it was more
body fluid?
body
than not that
fluid was transferred.
I
I
don’t know. And
don’t
[Marcum]:
initially
if it
When
asked
anybody
answer to
know
who knows the
fluids,
following
bite transmitted
I
that.
don’t know.
place:
colloquy took
Later,
a
Marcum admitted that she was not
Honor, I
Your
can’t answer
[Marcum]:
get
“I
physician and then said would like to
I
yes or no. Could elaborate?
testify
Dr.
in here to
as the medi-
Greenblat
Yes.
[Court]:
person.
give
I
he would
cal
don’t know if
Okay. Likely, guess
anybody
I
have
percentages
I’d
I
know if
[Marcum]:
either.
don’t
earlier,
possible. Likely
to have a definition. It’s
As we noted
knows that definition.”
gives
preponderance
that it was
no other
witnesses testified.
more of
theoretically possible
It’s
for sure.
present-
reviewing
After
all of the evidence
were transferred. And there
ed,
favorable
viewing
light
it in the
most
up Hepatitis B
picking
be a risk of
would
that the evi-
prosecution,
to the
we conclude
physical trauma like this.
or AIDS from a
dence does not establish
But,
guess you’re getting into
by the bite
fluids were transmitted
—I
there. And I don’t
percentages
this case. The definition
under the facts of
prefer
say
percentages.
I would like to
event “make some-
likely requires
theoretically
chance of
thing probable
there is a small risk.
It’s
better
[have a]
agents
occurring
have
than not.” BLACK’S
existing
that infectious
could
or
(6th ed.1990). Al-
LAW DICTIONARY
been transferred.
SCHWARTZMAN, Judge, specially
Marcum testified at times that was
though
likely, she failed
those statements
concurring.
In
meaningful reasoning
analysis.
or
opinion
in the
reasons stated
I concur
fact,
that she
she said
different occasions
only to
whole
I write
note that this
therein.
respond
nobody
unqualified to
and that
neatly
have been
avoided had
brouhaha could
finally
know the answer. Marcum
tes-
just
testing a
judge
made the HIV
the trial
fluid could
tified
pled
probation”
“condition of
after Johnson
transferred,
likely.”
but “[n]ot
more
placed
guilty
onto
Co-op., findings
Under Kootenai Elec.
speaks
Code
upheld
they
supported
should be
are
any crime in
“charged” with
which
substantial and
evidence.
transmitted;
“likely”
does
without under presented
facts as Therefore, bodily fluid. evi- uphold presented
dence was insufficient to magistrate’s finding, and the order re-
quiring hereby to undergo
reversed.
LANSING, C.J., concurs.