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State of Idaho v. Frank Scott Osterhoudt

February 28, 2013

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
FRANK SCOTT OSTERHOUDT, DEFENDANT-APPELLANT.



Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker, District Judge. Hon. Thomas Kershaw, Magistrate.

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

2013 Unpublished Opinion No. 380

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Order of the district court, on intermediate appeal from the magistrate division, affirming judgment of conviction for malicious injury to property, affirmed.

Frank Scott Osterhoudt appeals from the district court's order, on intermediate appeal, affirming Osterhoudt's judgment of conviction for malicious injury to property. For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURE

In June 2011, a restaurant hosted a poker league and issued chips to players. The game was set up on an outside deck of the restaurant. Osterhoudt arrived at the restaurant around 8:00 p.m. and participated in the league. At approximately 9:45 p.m., Osterhoudt and a friend went to the men's restroom, taking their chips with them. Another player notified the administrator of this, at which time the administrator followed them to the restroom. Outside the restroom, the administrator observed their chips sitting on a ledge. The administrator informed them that this was not permitted, at which point Osterhoudt became hostile. As Osterhoudt walked toward the administrator, Osterhoudt cursed at her. Osterhoudt's friend then stepped in the middle of the two and attempted to diffuse the confrontation. The administrator began to walk away, following the friend back outside to the deck. Osterhoudt turned and walked the other way, heading down the hallway toward a glass covered door--the only other exit from the hallway. As the administrator walked outside onto the deck, she heard a loud banging sound. When she turned around and walked toward the glass door, she saw that it had been shattered. At this time, the only other person in the restaurant was the bartender, but the bartender was in another room. The administrator did not witness Osterhoudt strike the door. However, she later testified that it was, at the most, five seconds from when she lost visual contact with Osterhoudt until she heard the back door shatter. Osterhoudt fled the scene.

An officer responded to the restaurant and then travelled to another location where Osterhoudt was located. The officer observed that Osterhoudt appeared angry, smelled of alcohol, and used vulgar invective directed toward the restaurant. Officers arrested and cited Osterhoudt with malicious injury to property, I.C. § 18-7001, for damaging the door at the restaurant. Prior to trial, Osterhoudt filed a motion in limine. As pertinent here, the magistrate ruled that the state could introduce evidence of the arresting officer's observations of Osterhoudt, along with statements Osterhoudt made.*fn1 A jury found Osterhoudt guilty and Osterhoudt appealed. The district court affirmed Osterhoudt's judgment of conviction on appeal. Osterhoudt again appeals.

II. STANDARD OF REVIEW

On review of a decision of the district court, rendered in its appellate capacity, we review the decision of the district court directly. 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. Id. 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. Id.

III. ANALYSIS

A. I.R.E. 404(b) Evidence

Osterhoudt argues that the magistrate erred by allowing I.R.E. 404(b) evidence in at trial because the state failed to serve the required notice of intent and no permissible basis existed for allowing such evidence. Specifically, Osterhoudt argues that evidence of his intoxication, his statements,*fn2 and his ...


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