Appeal from the District Court of the Second Judicial District, State of Idaho, Nez Perce County. Hon. Carl B. Kerrick, District Judge.
The opinion of the court was delivered by: Gutierrez, Chief Judge
Judgment of conviction for felony violation of a no contact order and being a persistent violator, affirmed.
Edward R. Hochrein, Jr. appeals from his judgment of conviction entered upon jury verdicts finding him guilty of felony violation of a no contact order and being a persistent violator. For the reasons set forth below, we affirm.
After Hochrein was charged by information with intimidating a witness, a magistrate issued a no contact order prohibiting Hochrein from having contact with the victim, Tanya Lewis. The information was amended to include charges of misdemeanor domestic battery and misdemeanor cruelty to an animal. Pursuant to a plea agreement, Hochrein pled guilty to the domestic battery and cruelty to an animal charges and was placed on probation.*fn1 The previously issued no contact order was continued in effect until August 20, 2011.
On January 28, 2010, Lewis and Chris Yeats were at Lewis's residence when the doorbell rang. Yeats looked through the peephole and saw who he believed to be Hochrein standing outside the door. He relayed this information to Lewis who did not look outside and immediately called 911. When the police arrived, the person who rang the doorbell was gone. Yeats, who had never met Hochrein, but had seen him in pictures, identified Hochrein from a photographic lineup as the man standing outside Lewis's door. Hochrein was charged with felony violation of a no contact order, Idaho Code § 18-920, and a persistent violator enhancement, I.C. § 19-2514.*fn2
At trial, the parties stipulated to the facts that a no contact order prohibiting Hochrein from having contact with Lewis had been issued and was "in effect" on January 28, 2010. The State presented the testimony of Lewis, Yeats, and an officer who testified regarding Yeats' identification of Hochrein as the perpetrator. Hochrein did not testify, but called three alibi witnesses who testified Hochrein was not at Lewis's residence at the time in question. During closing arguments, Hochrein's counsel emphasized to the jury, "There is really only one issue here and that's was Ed Hochrein outside the door at Tanya Lewis' apartment on January 28th." The jury found Hochrein guilty as charged. Hochrein now appeals.
Hochrein contends the district court erred in accepting the factual stipulation regarding the existence of a no contact order without his personal waiver of his right to a jury trial on the essential elements of the charge. He also argues there was insufficient evidence presented to support his conviction--specifically, that he had the requisite notice of the existence of the no contact order. Relatedly, he contends the district court erred in failing to instruct the jury on this element of the offense. Finally, he argues the district court erred in disallowing him to impeach Lewis's testimony with evidence of her prior conviction for felony possession of a financial transaction card that resulted in a withheld judgment.
In his supplemental brief, Hochrein contends, for the first time on appeal, that his rights to a jury trial and due process were violated by the district court's acceptance of the factual stipulation by Hochrein's counsel and the State that a no contact order was "in effect" at the time of the incident without obtaining from him a personal waiver. He asserts that because the stipulation was effectively an admission to several elements of the charged crime, the district court was required to advise him of the constitutional rights he was waiving and obtain from him an explicit waiver of his right to a jury determination as to each element of the crime.
Since Hochrein raises this issue for the first time on appeal, it is only reversible if it constitutes fundamental error. Pursuant to State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010), an appellate court should reverse an unobjected-to error when the defendant persuades the court the alleged error: (1) violates one or more of the defendant's unwaived constitutional rights; (2) is clear or obvious without the need for reference to any additional information not contained in the appellate record; and (3) affected the outcome of the trial proceedings. The stipulation at issue stated in relevant part:
On January 28, 2010, a No Contact Order issued by a Court was in effect in Case No. CR2009-0002146. The No Contact Order was issued because the Defendant, Edward R. Hochrein, Jr., had been charged with or convicted of an offense for which the Court found that a No Contact Order was appropriate. The No Contact Order prohibited the Defendant from contacting Tanya Lewis. The No Contact Order also prohibited the Defendant from being at Ms. Lewis' residence.
(Emphasis added.) Hochrein argues, and the State does not dispute, that this stipulation covered several elements of the charged offense pursuant to Idaho Code § 18-920, which provides that a violation of a no contact order is committed when:
(a) A person has been charged or convicted under any offense defined in subsection (1) of this section; and
(b) A no contact order has been issued, either by a court or by an Idaho criminal rule; and
(c) The person charged or convicted has had contact with the stated person in ...