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State of Idaho v. Stephen W. Kenyon

December 22, 2011

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
STEPHEN W. KENYON, CLERK JAY R. MARSH,
DEFENDANT-APPELLANT.



Appeal from the District Court of the Seventh Judicial District, State of Idaho, Madison County. Hon. Gregory W. Moeller, District Judge.

The opinion of the court was delivered by: Melanson, Judge

2011 Opinion No. 77

Judgment of conviction and unified sentence of twenty years, with a minimum period of confinement of eight years, for burglary enhanced for being a persistent violator, affirmed; order denying I.C.R. 35 motion for reduction of sentence, affirmed.

Jay R. Marsh appeals from his judgment of conviction and unified sentence of twenty years, with a minimum period of confinement of eight years, for burglary enhanced for being a persistent violator and from the order denying his I.C.R. 35 motion for reduction of sentence. Specifically, Marsh contends that the district court abused its discretion in admitting photocopies of his judgments of conviction in support of the persistent violator enhancement, imposing an excessive sentence, and denying his Rule 35 motion. For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURE

Marsh was charged with burglary, I.C. §§ 18-1401 and 18-1403, with a persistent violator enhancement, I.C. § 19-2514. Upon receiving the jury's verdict that Marsh was guilty of burglary, the district court conducted the second phase of the trial to determine whether Marsh was a persistent violator. The state presented testimonial evidence from Marsh's parole officer who was supervising Marsh on two prior felonies when he committed the instant offenses. The state also presented evidence in the form of Marsh's "penitentiary packet" which contained, among other things, photocopies of certified copies of judgments of conviction for ten of Marsh's previous felony convictions. Over Marsh's objection, the district court admitted the packet into evidence. Subsequently, the jury determined Marsh was a persistent violator. The district court sentenced Marsh to a unified term of twenty years, with a minimum period of confinement of eight years. Marsh filed a Rule 35 motion for reduction of his sentence, which the district court denied. Marsh appeals.*fn1

II. ANALYSIS

A. Penitentiary Packet

Marsh argues that the district court abused its discretion when it admitted the penitentiary packet into evidence and when it found the state met the standard for authenticity provided by Idaho Rules of Evidence. The decision whether to admit evidence at trial is generally within the province of the trial court. A trial court's determination that evidence is supported by a proper foundation is reviewed for an abuse of discretion. State v. Gilpin, 132 Idaho 643, 646, 977 P.2d 905, 908 (Ct. App. 1999). Therefore, a trial court's determination as to the admission of evidence at trial will only be reversed where there has been an abuse of that discretion. State v. Zimmerman, 121 Idaho 971, 973-74, 829 P.2d 861, 863-64 (1992). When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

Marsh was charged as a persistent violator pursuant to I.C. § 19-2514. Idaho Code Section 19-2514 provides that any person who is convicted for the third time of a felony shall be sentenced to the custody of the state board of correction for a term of not less than five years and such term may be extended to a life sentence. The former convictions relied on to invoke the persistent violator enhancement must be alleged in the indictment and proved at trial beyond a reasonable doubt. State v. Martinez, 102 Idaho 875, 880, 643 P.2d 555, 560 (Ct. App. 1982).

During the persistent violator phase of Marsh's trial, the state offered what was referred to as a penitentiary packet to prove that Marsh had been convicted of at least two prior felonies. The penitentiary packet contained photocopies of certified copies of ten of Marsh's previous felony convictions. The photocopied judgments of conviction bore signed certification seals from the clerk of the court in each jurisdiction where the judgment originated.*fn2 Affixed to the front of the packet was a certificate of authenticity from the records department of the Idaho Department of Correction (IDOC). The certificate stated that the signatories were in legal custody of Marsh's original files, that they had compared the copies contained in the packet to the originals, and that the copies were true and correct copies of the originals. Marsh objected to the admission of the penitentiary packet on the ground of lack of foundation and argued that the photocopies of the judgments were not properly authenticated pursuant to the Idaho Rules of Evidence. The district court overruled Marsh's objection and admitted the packet pursuant to I.R.E. 902(4).

An original judgment of conviction is the judgment which was signed by the trial judge. Pursuant to I.C.A.R. 32(2)(C), the legal custodian of judicial records from a district court is the clerk or designated deputy clerk of the district court. Therefore, Marsh's original judgments of conviction are in the legal custody of the clerks of the district courts in which they originated. Certified copies of judgments may be obtained from the district court clerk of the county where the judgment was entered. Certified copies bear a raised or colored seal which is signed by the clerk of the court. The seal and signature certify that the copy has been compared to the original judgment and is correct. I.C. § 9-325. Pursuant to I.C. § 19-2519(b), as soon as possible after an entry of judgment of conviction, the clerk of the court must deliver a certified copy of the judgment to the IDOC. The IDOC is required to keep a complete record of every prisoner who is committed to its custody. I.C. § 20-226. The record must include a certified copy of any judgments of conviction; a copy of the presentence investigation report, if any; and a copy of any disciplinary reports. I.C. § 20-237.

The certificate of authenticity which the IDOC records department attached to the penitentiary packet stated that the signatories had compared the copies included in Marsh's penitentiary packet to the original documents which were in the IDOC's possession. Pursuant to I.C.A.R. 32(2) (C), I.C. § 19-2519(b) and I.C. § 20-226, we conclude that the documents contained in the IDOC file were certified copies of Marsh's judgments of conviction and not the original judgments. Therefore, the documents contained in the penitentiary packet admitted at trial were photocopies of certified copies which were in the IDOC files. Accordingly, the question before us is whether it was permissible for the district court to admit into evidence photocopies of certified copies which had been authenticated as correct by the IDOC.

Authentication of a document is a condition precedent to the admission of a document into evidence. I.R.E. 901(a). Authentication may be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Id. To prove the content of a writing, the original writing is required except as otherwise provided by rule or statute. I.R.E. 1002. There is an exception to the requirement that an original be produced in the case of public records. State v. Korn, 148 Idaho 413, 417, 224 P.3d 480, 484 (2009). Judicial records are generally considered public records. Id. at 417 n.3, 224 P.3d at 484 n.3. Idaho Rule of Evidence 1005 provides, in relevant part, that the contents of a public record "may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original." Therefore, under ...


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