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State of Idaho v. David Loren Curry

August 1, 2012

STATE OF IDAHO,
PLAINTIFF-RESPONDENT,
v.
DAVID LOREN CURRY, DEFENDANT-APPELLANT.



Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Lansing L. Haynes, District Judge.

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

2012 Opinion No. 41

Stephen W. Kenyon, Clerk

Judgment of conviction for burglary, aggravated assault, unlawful possession of a firearm, and being a persistent violator, vacated and case remanded.

David Loren Curry appeals from the district court's judgment of conviction for burglary, aggravated assault, unlawful possession of a firearm, and being a persistent violator. Specifically, Curry argues the judgment of conviction should be vacated for three reasons:

(1) the evidence was insufficient to prove the offenses; (2) the district court erred in denying Curry's request for a self-defense jury instruction; and (3) the district court erred in denying Curry's motion for a new trial. For the reasons set forth below, we vacate the judgment.

I.

FACTS AND PROCEDURE

This criminal case arose from events that took place in February 2010. According to evidence presented at Curry's trial, events unfolded as follows. At that time, Melissa Ferra and Curry had recently ended their romantic relationship. Prior to the end of that relationship, Curry would often spend time with Ferra; Ferra's cousin, Marlisa Gordon; and Gordon's fiance, Travis Escudero, at Gordon's home. In mid-February, Ferra learned from police that her car had been wrecked and abandoned, and she believed Curry was responsible. After notifying the police about her suspicions, Ferra decided to stay with Gordon that night. Ferra and Gordon awoke on February 18 to find the word "snitch" written on Gordon's front door and a black oily substance on the hood of Gordon's car. Gordon contacted the police.

On the evening of February 20, Ferra, Gordon, and Escudero were at Gordon's home. Curry called Gordon's phone, but Escudero answered, to which Curry said, "I'm coming for you, buddy." Escudero told Ferra and Gordon about the phone call, and Ferra left the residence. Gordon and Escudero remained at the home and went out to the garage to smoke, where there was a couch and coffee table at which they could sit. Through the open garage door, Gordon saw a person approaching from the driveway and relayed that to Escudero. Escudero saw that it was Curry and that Curry was carrying clothes in one hand and had his other hand in his pocket. After entering the garage, Curry threw the clothes (which belonged to Ferra), started yelling about $100 that Gordon and Escudero owed him, and kicked over the coffee table. Escudero then stood and picked up a solid metal pole, about a foot and a half to two feet long, from near the couch. In response, Curry pulled his hand out of his pocket about an inch and said, "Do you want to go?" Escudero saw something black and metal in Curry's pocket, and as a person with recent military training and experience as a sniper, Escudero assumed it was a handgun. Curry, however, did not brandish the object so as to make it identifiable. The encounter ceased when Curry made an obscene gesture with his middle finger and walked away. Escudero and Gordon went into the house and contacted the police. The entire incident lasted roughly three to five minutes.

When police arrived, Escudero recounted what had happened. He said he assumed Curry had a handgun because of seeing something black in Curry's pocket and how Curry kept his hand there, but said he could not be sure if Curry carried a weapon. When questioned, Gordon stated she did not see anything in Curry's hands besides the clothes he was carrying when he first arrived. Executing a search warrant, police searched Curry's home and found no firearms. Curry's mother, with whom he lived, contacted police and told them about a handgun, which had been Curry's grandfather's, that she kept in a file box. Thereafter, officers returned to Curry's home and seized the handgun from under a number of files in the box located in her bedroom closet. Curry's mother stated she had no reason to believe that Curry knew the handgun was present in the home, and when asked, Curry said he had last seen the handgun years before. When Curry spoke with police about the incident at Gordon's home, he stated there was an argument and confrontation, but made no mention of a weapon. In the words of the detective, Curry "denied that he displayed any gun." However, Curry did admit responsibility to the police, and to his brother, for writing on Gordon's door and pouring oil on her car. Two days after the incident in the garage, Curry's brother overheard Curry on the phone talking about a "gun," but did not hear other details of the conversation.

The State charged Curry with burglary for entry into the garage with the intent to commit the crime of witness intimidation and/or aggravated assault, aggravated assault on Escudero by threatening him with a firearm, unlawful possession of a firearm,*fn1 malicious injury to property for vandalizing Gordon's car and front door, and a sentencing enhancement for being a persistent violator. Curry pled guilty to malicious injury to property, but exercised his right to a jury trial on the burglary and aggravated assault charges.*fn2

The jury found Curry guilty of both burglary and aggravated assault. Without conceding the jury verdict was supported by sufficient evidence, Curry admitted to having three prior felonies. Thereafter, the court held a bench trial on the unlawful possession of a firearm charge, found Curry guilty, and also found Curry was a persistent violator. Curry made a timely motion for a new trial. He asserted the verdicts were contrary to the law and evidence because of the insufficiency of the evidence and because the jury was overwhelmed with hearsay evidence, resulting in an unfair trial. The district court denied the motion. After entering judgments of conviction,*fn3 the court imposed concurrent sentences as follows: a unified sentence of fourteen years, with three years determinate, for burglary, Idaho Code § 18-1401; a unified sentence of fifteen years, with five years determinate, for aggravated assault, Idaho Code §§ 18-901, 18-905; a unified sentence of thirteen years, with four years determinate, for unlawful possession of a firearm, Idaho Code § 18-3316; and 180 days for malicious injury to property, Idaho Code § 18-7001. Curry timely appeals from the judgment of conviction relating to burglary, aggravated assault, and unlawful possession of a firearm, with the sentencing enhancement for being a persistent violator. Curry asserts three errors: (1) the evidence was insufficient to support the judgment of conviction; (2) the court erred in denying his request for a jury instruction on self-defense; and (3) the court erred in denying the motion for a new trial. Because we conclude the first issue is dispositive in this case, we do not reach Curry's second or third assignments of error.

II.

DISCUSSION

The standard of review for sufficiency of the evidence for a judgment of conviction entered upon a jury verdict is whether there was substantial evidence upon which a reasonable trier of fact could have found the prosecution sustained its burden of proving the essential elements of the crime beyond a reasonable doubt. State v. Hoyle, 140 Idaho 679, 684, 99 P.3d 1069, 1074 (2004); State v. Lawyer, 150 Idaho 170, 172, 244 P.3d 1256, 1258 (Ct. App. 2010). We do not substitute our view for that of the jury as to the credibility of the witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn from the evidence. Lawyer, 150 Idaho at 172, 244 P.3d at 1258; State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App. 1991). Moreover, we consider the evidence in the light most favorable to the prosecution. Lawyer, 150 Idaho at 172, 244 P.3d at 1258; State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998). If we determine the evidence is insufficient, the defendant is entitled to acquittal. See Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101.

Curry argues the convictions for burglary and aggravated assault must be set aside and acquittals entered, asserting the evidence was insufficient. Upon reversal of those two convictions, Curry contends the conviction for unlawful possession of a firearm and the finding that he was a persistent violator must also be reversed and acquittal entered. The State responds that there is sufficient evidence upon which a reasonable juror could find that Curry entered the garage with the necessary intent for burglary (either the intent to ...


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