Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia County. Hon. John M. Melanson, District Judge.
The opinion of the court was delivered by: Lansing, Judge
Judgment of conviction and order of restitution for battery on a peace officer, affirmed.
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.
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 sheriff's 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 commented 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 enhancement.
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 on the basis that the district court had never arraigned him on the amended information's allegation of the persistent violator enhancement. In response, the district court arraigned Herrera, effectively denying the motion.
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.
Prior to trial, Herrera filed a motion to dismiss the charge. He asserted that Garrett'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, 133 Idaho 172, 174, 983 P.2d 245, 247 (Ct. App. 1999); State v. Haley, 129 Idaho 333, 334, 924 P.2d 234, 235 (Ct. App. 1996). We may not substitute our opinion for that of the jury as to the credibility of witnesses or the weight to be given to their testimony. State v. Gonzalez, 134 Idaho 907, 909, 12 P.3d 382, 384 (Ct. App. 2000). The facts, and inferences to be drawn from those facts, are construed in favor of upholding the jury's verdict. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998); State v. Peite, 122 Idaho 809, 823, 839 P.2d 1223, 1237 (Ct. App. 1992).
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 punishment shall be imprisonment in the state ...