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State of Idaho v. Nathan Wade Herren

November 9, 2012

STATE OF IDAHO,
PLAINTIFF-RESPONDENT,
v.
NATHAN WADE HERREN, DEFENDANT-APPELLANT.



Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Kathryn A. Sticklen, District Judge.

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

Stephen W. Kenyon, Clerk

2012 Opinion No. 59

Order, on intermediate appeal, affirming judgment of conviction for violation of a no contact order and affirming revocation of withheld judgment, reversed and case remanded.

Nathan Wade Herren appeals from the district court's order, on intermediate appeal, affirming his judgment of conviction entered upon the magistrate's verdict finding him guilty of violation of a no contact order and affirming the revocation of his withheld judgment based on the magistrate's finding that he was in violation of his probation. For the reasons set forth below, we reverse and remand the case.

I. FACTS AND PROCEDURE

In the course of an ongoing dispute between Herren and his neighbor, William McDermott, Herren cut down a portion of McDermott's fence. Herren was charged with felony malicious injury to property and, pursuant to a plea agreement, pled guilty to an amended charge of misdemeanor malicious injury to property. The court entered a withheld judgment and placed Herren on probation for two years. In addition, the court entered a no contact order (NCO), providing, in relevant part, that Herren could not "knowingly remain within 100 feet of"

McDermott.

Months later, Herren filed a motion to modify the NCO to allow him to attend homeowners' association meetings where McDermott, an association board member, would likely be present. Herren failed to request a hearing on the motion and no modification was entered. Nevertheless, Herren attended an association meeting at a local school. When Herren first arrived, McDermott was not present, but once McDermott entered the meeting room, Herren made brief eye contact with him and moved to the back of the room. McDermott contacted law enforcement, who responded to the scene. Herren stated he believed he was more than 100 feet from McDermott. Herren was arrested for violation of the NCO after the responding officer determined Herren had been sitting well closer than 100 feet from McDermott. Herren was charged with violating the NCO, Idaho Code § 18-920, and violating his probation by committing a new crime.

Following a bench trial, the magistrate found Herren guilty of violating the NCO by knowingly remaining within 100 feet of McDermott at the meeting. The magistrate entered a judgment of conviction. Herren admitted to violating his probation by being convicted of the NCO violation, and the magistrate revoked Herren's withheld judgment for malicious injury to property. Herren timely appealed his judgment of conviction for violating the NCO and the revocation of his withheld judgment to the district court. He filed a motion to consolidate the appeals, which the district court granted. Following a hearing, the district court affirmed Herren's judgment of conviction for violating the NCO, the probation violation finding, and the revocation of his withheld judgment. Herren now appeals to this Court.

II. ANALYSIS

Herren contends his judgment of conviction for violating the NCO should be vacated because the magistrate did not find he had "contact" with McDermott in violation of the NCO as required by the statute and there is insufficient evidence to support such a finding. He also contends the order revoking his withheld judgment should be reversed because the NCO conviction cannot properly form the basis of the probation violation where it was not supported by sufficient evidence.

On review of a decision of the district court, rendered in its appellate capacity, we review the decision of the district court directly. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 (2008); State v. DeWitt, 145 Idaho 709, 711, 184 P.3d 215, 217 (Ct. App. 2008). We examine the magistrate record to determine whether there is substantial and competent evidence to support the magistrate's findings of fact and whether the magistrate's conclusions of law follow from those findings. Losser, 145 Idaho at 672, 183 P.3d at 760; DeWitt, 145 Idaho at 711, 184 P.3d at 217. If those findings are so supported and the conclusions follow therefrom and if the district court affirmed the magistrate's decision, we affirm the district court's decision as a matter of procedure. Losser, 145 Idaho at 672, 183 P.3d at 760; DeWitt, 145 Idaho at 711, 184 P.3d at 217.

This Court exercises free review over the application and construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a statute is plain and unambiguous, this Court must give effect to the statute as written, without engaging in statutory construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The words must be given their plain, usual, and ordinary meaning, and the statute must be construed as a whole. State v. Hart, 135 Idaho 827, 829, 25 P.3d 850, 852 (2001). If the language is clear and unambiguous, there is no occasion for the court to resort to legislative history or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67. When this Court must engage in statutory construction because an ambiguity exists, it has the duty to ascertain the legislative intent and give effect to that intent. State v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct. App. 2001).

Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt will not be overturned on appeal where there is substantial evidence upon which a reasonable trier of fact could have found the prosecution sustained its burden of proving the essential elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d ...


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