Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Skunkcap

Court of Appeals of Idaho

June 14, 2013

STATE OF IDAHO, Plaintiff-Respondent,
v.
JAMES LEROY SKUNKCAP, Defendant-Appellant.

2013 Opinion No. 37

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Peter D. McDermott, District Judge.

Judgment of conviction and enhanced unified sentence of twelve years with five years determinate for eluding a police officer, affirmed; judgment of conviction and consecutive enhanced unified sentence of eighteen years with eight years determinate for grand theft, affirmed; judgment of conviction and sentence for three months for misdemeanor assault, affirmed; judgment of conviction for misdemeanor malicious injury to property, vacated.

Sara B. Thomas, State Appellate Public Defender; Sarah E. Tompkins, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

GRATTON, Judge

James Leroy Skunkcap appeals from the district court's judgments of conviction and sentences.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Officers observed a man, later identified as Skunkcap, and a woman leave a home (that was under surveillance) in a vehicle reported as stolen. The officers attempted to stop the vehicle. Skunkcap attempted to flee and only stopped after colliding with two police vehicles. In a separate matter, Skunkcap was charged with stealing two saddles out of a horse trailer belonging to a western store. These events resulted in three criminal trials. The first trial, Docket No. 34746, resulted from Skunkcap's collision with the police vehicles. A jury convicted Skunkcap of felony eluding a police officer, Idaho Code § 49-1404(1), (2)(b); malicious injury to property, I.C. § 18-7001; and misdemeanor simple assault, I.C. § 18-902. Following the trial, Skunkcap entered a guilty plea to being a persistent violator. The second trial, Docket No. 34747, involved the theft of two horse saddles and resulted in a jury convicting Skunkcap of grand theft, I.C. §§ 18-2403(1), 18-2407(1). Skunkcap again entered a guilty plea for being a persistent violator.

The district court imposed a unified term of eighteen years with eight years determinate for the felony eluding a police officer conviction, including the persistent violator enhancement. The court imposed a term of six months for misdemeanor malicious injury to property and three months for misdemeanor assault. Skunkcap also received a unified sentence of eighteen years with eight years determinate for his conviction of grand theft with the persistent violator enhancement, to run consecutive to his eluding sentence. Subsequently, Skunkcap sought to withdraw his first guilty plea to being a persistent violator in Docket No. 34746. The district court allowed the guilty plea to be withdrawn and Skunkcap went to trial a third time, Docket No. 38249, where a jury found him to be a persistent violator. The district court then entered a seven-year indeterminate term enhancement to his five-year determinate sentence for the eluding a police officer conviction. Skunkcap filed an Idaho Criminal Rule 35 motion and the district court granted the motion in part. Skunkcap timely appeals.

II.

ANALYSIS

On appeal, Skunkcap raises several issues relative to the separate cases. As to the matter involving collision with the police vehicles, Docket No. 34746, Skunkcap claims that: (1) the district court failed to properly respond to a question from the jury; (2) the jury instructions regarding eluding a police officer and assault were improper; and (3) the prosecutor committed misconduct. As to the matter involving the saddles, Docket No. 34747, Skunkcap contends that: (1) the district court failed to adequately inquire as to a conflict of interest; and (2) the prosecutor committed misconduct. As to the matter involving enhancement, Docket No. 38249, Skunkcap asserts that: (1) the district court imposed an illegal sentence; and (2) the district court failed to adequately inquire as to a conflict of interest.

A. Docket No. 34746

1. Response to a question from the jury

Skunkcap claims the district court erred by failing to properly instruct the jury in response to the jury's question regarding application of the definition of "malicious." The decision whether or not to give further instructions in response to questions from a jury is at the district court's discretion. I.C.R. 30(c). Therefore, this Court reviews such a decision under an abuse of discretion standard. State v. Sheahan, 139 Idaho 267, 282, 77 P.3d 956, 971 (2003). The Court exercises free review over a district court's determination as to whether jury instructions contain a defect, ambiguity, or gap with respect to its statements on the law. Id. See also State v. Pinkney, 115 Idaho 1152, 1154, 772 P.2d 1246, 1248 (Ct. App. 1989). In Pinkney, this Court outlined a district court's responsibility when responding to jurors' questions:

In general, it is within the trial court's discretion to determine whether, and the manner in which, to respond to a question posed by the jury during deliberations. I.C.R. 30[(c)]. See also Dawson v. Olson, 97 Idaho 274, 543 P.2d 499 (1975). This grant of discretion is premised on the assumption that the instructions as given are clear, direct and proper statements of the law. Dawson v. Olson, supra. Consequently, if a jury expresses doubt or confusion on a point of law correctly and adequately covered in a given instruction, the trial court in its discretion may explain the given instruction or further instruct the jury but it is under no duty to do so. However, if a jury makes explicit its difficulties with a point of law pertinent to the case, thereby revealing a defect, ambiguity or gap in the instructions, then the trial court has the duty to give such additional instructions on the law as are reasonably necessary to alleviate the jury's doubt or confusion. Dawson v. Olson, supra. See also I.C. §§ 19-2132(a) and 19-2204 (trial court must instruct the jurors on all matters of law necessary for their information).

Pinkney, 115 Idaho at 1154, 772 P.2d at 1248.

In the instant case, the district court provided the jury with an instruction containing the elements of malicious injury to property. The court also provided the jury with an instruction that "[t]he word 'maliciously' means the desire to annoy or injure another or the intent to do a wrongful act." During deliberations, the jury sent the court the following questions, seeking to clarify that instruction:

Instruction 17, definition of "maliciously, " if the act (the second hit of the [first police] vehicle) was done due to an effort to escape is that malicious or does it mean that the damage was the intent, not the escape?
When committing a wrongful act is any unintentional damage considered malicious?

At trial, the State presented the testimony of Detective Collins. He testified that officers had been watching a mobile home where they believed an individual, other than Skunkcap, may be. A vehicle that was parked outside was reported as stolen. Later, Skunkcap and a woman left in the vehicle with Skunkcap driving. Skunkcap pulled onto the road and was traveling at a low rate of speed along the shoulder of the road in the wrong lane of travel. At this point, other officers in the area were alerted and began to move. Detective Collins pulled his unmarked truck onto the road to block the opposite lane of travel. A marked police truck approached and activated its overhead lights. Skunkcap then executed a U-turn and began traveling at 20 to 25 miles per hour toward Collins' vehicle. Skunkcap struck the front bumper of Collins' vehicle. Skunkcap put his vehicle in reverse, striking another officer's vehicle within a few feet and then again went forward, striking Collins' vehicle a second time from within a few feet.

After receiving the note from the jury, the district court conducted a hearing to discuss the issue raised by the jury and the responses suggested. In regard to the definition of "maliciously, " the State argued that the court should refer to the definition given. Skunkcap first asserted that the jury was concerned with applying the term "maliciously" to the circumstances of the multiple collisions that occurred. Although the State asserted that the sequence of events should not be considered separately, but as one continuous act, Skunkcap argued that the court should instruct the jury that they could analyze application of the term "maliciously" separately as to each collision.[1] In addition, Skunkcap argued, "With regard to the unintentional conduct or damages, I would argue that it is not malicious if it's unintended conduct and, therefore, that they should be instructed that unless the damage was intended, it wouldn't be malicious."

As to the definition of "maliciously, " the court referred the jury to the given instruction. However, the court went on to explain that the jury could separately apply that term to the individual collisions and that if they found none of the collisions were done maliciously they should respond as not guilty but, on the other hand, if they found any but not all collisions to have been done maliciously, to have the foreperson write on the verdict which of the collisions satisfied that requirement. The jury ultimately found Skunkcap guilty of only the second collision with Collins' vehicle. Upon motion by Skunkcap, the district court reduced the conviction to a misdemeanor, finding that the State had failed to prove the requisite $1000 damage caused by the second collision.

On appeal, Skunkcap argues that the district court's response failed to provide the jury with an "adequate and legally correct response to the jurors' question regarding the mens rea for malicious injury to property." Skunkcap claims that the district court should have instructed the jury that the malicious element required a demonstration of intent to injure property of another. Without such an instruction, Skunkcap asserts the jury could have convicted him based on his intent to do a wrongful act--fleeing from the police--rather than his intent to damage the police vehicle.

Skunkcap relies on State v. Nastoff, 124 Idaho 667, 862 P.2d 1089 (Ct. App. 1993). In Nastoff, we were called upon to determine the state of mind or "mens rea" necessary to establish criminal culpability for malicious injury to property under I.C. § 18-7001. Nastoff, 124 Idaho at 668, 862 P.2d at 1090. In doing so, we analyzed the definition of "malice" from I.C. § 18-101. We stated, "Under that definition, malice may take either of two quite distinct forms--it may constitute: (1) a purpose or desire to vex, annoy or injure another; or (2) an intent to do a wrongful act, regardless of the presence or absence of any desire to inflict harm on another." Nastoff, 124 Idaho at 669, 862 P.2d at 1091. In regard to the "intent to do a wrongful act, " we noted the contention of the State that the intent to do any wrongful act would constitute the "malice" supporting a conviction for malicious injury to property and the intent to do some other wrongful act that ultimately, even accidentally, resulted in injury to property was sufficient. Id. However, we rejected that contention, holding that I.C. § 18-7001 creates culpability for malicious injury to property only where the defendant's conduct causing the injury is accompanied by an intent to injure the property of another. Id. at 670, 862 P.2d at 1092.

We recognize that the instruction given in this case mirrors the pattern jury instruction as well as the language of I.C. § 18-101. "However, if a jury makes explicit its difficulties with a point of law pertinent to the case, thereby revealing a defect, ambiguity or gap in the instructions, then the trial court has the duty to give such additional instructions on the law as are reasonably necessary to alleviate the jury's doubt or confusion." Pinkney, 115 Idaho at 1154, 772 P.2d at 1248. In this case, the questions of the jury clearly went to the issue of the mens rea involved:

Instruction 17, definition of "maliciously, " if the act (the second hit of the [first police] vehicle) was done due to an effort to escape is that malicious or does it mean that the damage was the intent, not the escape?
When committing a wrongful act is any unintentional damage considered malicious?

In essence, the jury wanted to know the answers to the questions this Court addressed in Nastoff. First, the jury wanted to know whether specific intent to cause injury to the property was required. We answered that question in the affirmative in Nastoff. Second, the jury wanted to know if a wrongful act which caused injury to property without specific intent to do so would suffice. We answered that question in the negative in Nastoff. The jury here was concerned with damage caused by an effort to escape and unintended damage from a wrongful act.

Again, the court instructed that "[t]he word 'maliciously' means the desire to annoy or injure another or the intent to do a wrongful act." (Emphasis added.) In light of the holding in Nastoff that intent to injure the property of another is required, we question whether the pattern instruction, modeled after the general malice statute, is appropriate in malicious injury to property cases. However, we hold that the question posed by the jury in this case identified an ambiguity in the jury instructions regarding the necessity of specific intent to cause injury to property and that the court should have further instructed the jury that intent to injure the property of another was a required element of the crime.

The jury clearly referenced the second collision with Collins' vehicle, the only collision on which the jury convicted Skunkcap, after being referred again to the instruction defining "maliciously." The question referenced that second collision together with an effort to escape. The second question made general reference to unintended damage from "a" wrongful act. Whatever Skunkcap's intent was in the second collision, we note that the jury also convicted Skunkcap of the act of eluding a police officer relative to the same event. Under the circumstances, the jury may well have convicted Skunkcap, without further instructions from the court, based upon unintended damage caused in an effort to escape, as opposed to damage caused by intent to injure the property of another. Therefore, Skunkcap is entitled to a new trial on this charge.

2. Jury instructions

Next, Skunkcap claims that the jury instructions were improper in two instances. First, Skunkcap claims that the jury instruction regarding his felony eluding a police officer charge created an unlawful presumption in the State's favor and relieved the State of its burden of proof. Second, Skunkcap claims that the jury instruction for assault was legally erroneous. Skunkcap did not object to the jury instructions at trial; therefore, he asserts fundamental error to obtain appellate review. Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Idaho decisional law, however, has long allowed appellate courts to consider a claim of error to which no objection was made below if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971). In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court abandoned the definitions it had previously utilized to describe what may constitute fundamental error. The Perry Court held that an appellate court should reverse an unobjected-to error when the defendant persuades the court that the alleged error: (1) violates one or more of the defendant's unwaived constitutional rights; (2) the error is clear or obvious without the need for reference to any additional information not contained in the appellate record; and (3) the error affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978 (footnote omitted).

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 review jury instructions as a whole because an ambiguity in one instruction may be made clear by other instructions, and an instruction that appears incomplete when viewed in isolation may fairly and accurately reflect the law when read together with the remaining instructions. See State v. Adamcik, 152 Idaho 445, 472, 272 P.3d 417, 444 (2012); State v. Enno, 119 Idaho 392, 405, 807 P.2d 610, 623 (1991); State v. Ranstrom, 94 Idaho 348, 352, 487 P.2d 942, 946 (1971).

a. Eluding a police officer

The jury instruction regarding eluding a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.