Appeal from the District Court of the Fifth Judicial District, State of Idaho, Lincoln County. Hon. John K. Butler, District Judge. Judgment of conviction for grand theft, affirmed.
The opinion of the court was delivered by: Gutierrez, Judge
AMENDED OPINION THE COURT'S PRIOR OPINION DATED DECEMBER 27, 2011 IS HEREBY AMENDED.
Traci N. Hadden appeals from her judgment of conviction for grand theft. Hadden contends the district court erred in instructing the jury and in denying her motions for change of venue. For the reasons set forth below, we affirm.
In January 2009, Hadden was charged with grand theft of approximately twenty calves owned by Steven Bilbao, a cattle rancher near Shoshone, Lincoln County, Idaho. The charge arose from an incident in the winter of 2008, where Bilbao awoke to find that twenty head of cattle were missing from his ranch. Hadden filed a motion for change of venue, primarily due to the extensive pretrial publicity surrounding unrelated charges for the attempted murder of her former father-in-law, Craig Hadden, a well-known realtor and businessman in the area, and for the solicitation of the murder of a police officer, filed against her during the pendency of this case. The district court denied the motion. Hadden again renewed her request for a change of venue during jury selection, which the district court again denied.
At trial, Blaine Ramey, a rancher and owner of a cattle company in Bingham County, Idaho, testified he purchased Bilbao's cows after being contacted by a man named Laramie Keppner, with whom he often did business, about buying some cows from a woman who was going through a divorce. Ramey testified Keppner was accompanied during the transaction by a woman and two teenage boys. During the transaction, a brand inspector came to the ranch and indicated the brand on the cattle was Bilbao's. The woman told Ramey she had a bill of sale for the calves from Bilbao, but had forgotten to bring it with her and would mail it to him. As a result, Ramey made his check payable to both Bilbao and Keppner. Ramey, who was elderly, could not identify at the preliminary hearing or at trial whether Hadden was the woman who was present at the transaction. Likewise, the brand inspector could not identify Hadden with certainty as the woman present at the transaction.
At trial, Keppner testified that Hadden, whom he had known for approximately four to five years, contacted him and indicated she was going through a divorce and wanted to sell some cattle without her husband knowing. He further testified that early one morning, he accompanied Hadden, her sixteen-year-old son, and her son's teenage friend in Hadden's pickup truck and trailer to a ranch in Butte County, Idaho, where they backed up to a corral and loaded twenty cattle into the trailer. Keppner testified the group took the cattle to Ramey's ranch, where they received a check made out to him and Bilbao for approximately $8500. Keppner cashed the check (apparently without Bilbao's endorsement) and gave the money to Hadden, who gave him $2,900 she owed him and kept the rest. On cross-examination, Keppner was confronted with the fact he had testified at the preliminary hearing that only Hadden's son and the son's friend accompanied him to the Butte County ranch to load the cattle, as well as other inconsistencies.
Hadden's son, fifteen years old at the time of trial, testified that Hadden discussed with both him and Keppner a plan to steal cattle because she needed money. He also testified that Hadden accompanied him, his friend, and Keppner to pick up the cows from a corral and to sell them to Ramey, and that Keppner cashed the check and gave part of the money to Hadden. Hadden's son also admitted he had testified at the preliminary hearing that his mother had not been present when they picked up the cattle--a "story" Hadden told him to say. Additionally, he also admitted to other inconsistencies between his preliminary hearing and trial testimony and that he was given immunity in exchange for his truthful trial testimony.
In closing argument, Hadden contended the jury should disregard the testimony of Keppner and Hadden's son based on the numerous contradictions within their individual accounts and between their accounts at the preliminary hearing and at trial. Upon a jury verdict of guilty, Hadden was convicted of grand theft. Idaho Code §§ 18-2403(1), 18-2407(1)(b). She now appeals, asserting the court erred in instructing the jury and in denying her motions for change of venue.
Hadden contends the district court committed fundamental error in giving the jury an erroneous instruction that impermissibly restricted the jury's province to weigh the credibility of witnesses and the evidence. This erroneous instruction, she contends, prejudiced her because she had argued the jury should disregard the testimony of both Keppner and Hadden's son, but the instruction limited the jury's ability to do this to the extent they were corroborated by other witnesses.
The question of whether the jury has been properly instructed is a question of law over which we exercise free review. State v. Severson, 147 Idaho 694, 710, 215 P.3d 414, 430 (2009). When reviewing jury instructions, we ask whether the instructions as a whole, and not individually, fairly and accurately reflect applicable law. State v. Bowman, 124 Idaho 936, 942, 866 P.2d 193, 199 (Ct. App. 1993). We presume the jury followed the district court's instructions. See State v. Kilby, 130 Idaho 747, 751, 947 P.2d 420, 424 (Ct. App. 1997); State v. Hudson, 129 Idaho 478, 481, 927 P.2d 451, 454 (Ct. App. 1996).
The court gave the following instruction to the jury, which Hadden contends is an improper version of the common law rule of "falsus in uno, falsus in omnibus"*fn1 :
You are instructed that a witness may be impeached by contradictory evidence or by evidence that the witness has made, at other times, statements inconsistent with the witness' testimony given on the witness stand.
You are further instructed that if a witness is successfully impeached, or if the jury believes from the evidence that a witness has willfully sworn falsely during the trial as to any matter or thing material to the issues in the case, then the jury is at liberty to disregard the witness' testimony, except insofar as the witness has been corroborated by other credible evidence or by facts and circumstances appearing during the trial.
(Emphasis added). Hadden contends the final clause of the instruction is an "incorrect statement of the law that unduly restricted the jury's inherent powers to judge the weight and credibility of the evidence" and, therefore, was a violation of her Sixth Amendment right to a jury determination.
Ordinarily, a party may not claim a jury instruction was erroneous unless the party objected to the instruction prior to the start of jury deliberations. Idaho Criminal Rule 30(b). However, even absent a timely objection to the trial court, a narrow exception exists for those issues rising to the level of fundamental error. State v. Perry, 150 Idaho 209, 228, 245 P.3d 961, 980 (2010); State v. Reid, 151 Idaho 80, 83-84, 253 P.3d 754, 757-58 (Ct. App. 2011). In Perry, the Idaho Supreme Court clarified the fundamental error doctrine applicable where an alleged error was not followed by a contemporaneous objection:
Such review includes a three-prong inquiry wherein the defendant bears the burden of persuading the appellate court that the alleged error: (1) violates one or more of the defendant's unwaived constitutional rights; (2) plainly exists (without the need for 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. If the defendant persuades the appellate ...