Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. Steven C. Verby, District Judge.
The opinion of the court was delivered by: Gratton, Chief Judge
Judgment of conviction for intimidating a witness, vacated and remanded.
Robert J. Sutton, II (Sutton) appeals his judgment of conviction, upon jury verdict, for intimidating a witness, Idaho Code § 18-2604. Sutton claims the jury instructions regarding the elements of the offense were defective and require vacating the conviction. We vacate the judgment of conviction and remand.
I.FACTUAL AND PROCEDURAL BACKGROUND
Sarah Phelps (Phelps) worked as a bartender in Sandpoint where she met Sutton and Mike O'Neil (O'Neil), Sutton's uncle. Phelps witnessed O'Neil selling methamphetamine to customers at the bar and informed the police. She agreed to work as a paid informant. After Phelps concluded a controlled buy of methamphetamine from O'Neil, O'Neil was charged with delivery of a controlled substance. A preliminary hearing was scheduled for June 18, 2009, at which Phelps was a potential witness.
On June 15, 2008, Sutton and his father, Robert Sutton, Sr. (Sutton Sr.), visited Phelps' apartment. Phelps owned a pit-bull terrier that was very protective. She testified that her dog was for protection, and in order to prevent the dog from becoming friendly with strangers she kept him in a separate room when people visited. Phelps testified she put the dog in a separate room on this day and he was barking while the Suttons were there.
On June 15, 2008, an evening phone call was recorded from the jail to the house where Sutton and Sutton Sr. were staying. During the fifteen-minute call, six people talked on the phone, two from the jail and four from the house. The call began with another inmate, "Lefty," calling his friend, Gary Rust, whom the Suttons were living with at the time. Rust stated to Lefty, "Tell [O'Neil] Sara Phelps told on him." When Sutton Sr. began speaking with O'Neil, Sutton Sr. said "Don't say anything on the phone." O'Neil replied "I know." O'Neil said that Rust would talk to Sutton later. When Sutton Sr. stated "I'll do anything I can for you." O'Neil responded, "Tell your fucking kid he already knows who she is." When Sutton came on the phone, O'Neil told him that this is his (O'Neil's) second conviction and he is at risk of being sentenced from seven to life. O'Neil then said, "I have a hearing on the 18th. My preliminary is on the 18th." Thereafter, the following exchange occurred:
Sutton: "I want to know who your . . ."
Sutton: "Well I don't know . . ."
Sutton: "Just don't say nothing and we'll just talk when I . . ."
O'Neil: "Bitch. That's all I'm going to say. You know what time it is."
Sutton: "I'll come get you and we'll work something out."
O'Neil: "I ain't even worried about it."
Sutton: "I just want to know."
O'Neil: "I want to see the bitch up on the stand. Just so I can look at her and fucking spit."
Sutton: "They won't give the exact day in the newspaper because then they think you'll know who it is."
O'Neil: "I know who it is. The time frame is way too short."
On June 17, 2008, between 6:30 to 7:00 a.m., Phelps, following her daily routine, took her pit-bull for his morning walk. Before Phelps could stop him, her dog ate two balls of raw hamburger that were left outside her home in the alley. Shortly after returning from the twenty- minute walk, the dog became ill with seizures. Phelps took her dog to a veterinarian and was instructed to leave him there because he was extremely ill. After leaving her dog, Phelps went to a local bar where she had a number of cocktails and became intoxicated because she was upset that someone would hurt her dog. Phelps returned to her apartment and fell asleep. Phelps awoke to the noise of her French doors hitting the wall and allegedly saw Sutton and Sutton Sr. storm into her apartment. She testified that they came directly at her and stated: "We know that you narked. Michael told us. You're fucked. You're going down." Sutton allegedly touched her cheek with a .45 caliber pistol and then moved the pistol to the corner of her mouth. Phelps did not remember any other statements before the Suttons left and estimated the incident took about two minutes.
Sutton was charged with burglary, aggravated assault, and intimidating a witness. He was also alleged to be a persistent violator. A jury found Sutton guilty of intimidating a witness, acquitted him of aggravated assault, and could not reach a verdict on the burglary charge. Sutton admitted to being a persistent violator of the law. He ...