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State v. Carmouche

Court of Appeals of Idaho

November 21, 2013

STATE of Idaho, Plaintiff-Appellant-Cross-Respondent,
Darren Dustin CARMOUCHE, Defendant-Respondent-Cross-Appellant.

Review Denied Feb. 11, 2014.

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[Copyrighted Material Omitted]

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

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


The State appeals from the district court's judgment, entered after a bench trial, acquitting Darren Dustin Carmouche on an allegation that he was subject to a sentence enhancement for being a persistent violator of the law. The State asserts primarily that the district court erred in a sua sponte post-trial ruling that evidence that had been admitted at trial without objection was inadmissible hearsay and would not be considered in determining whether Carmouche was a persistent violator. Carmouche responds that the State's claims of error are rendered moot by constitutional prohibitions against double jeopardy. Carmouche also cross-appeals from the judgment of conviction on the underlying charges. He contends that the prosecutor impermissibly presented evidence of and commented on Carmouche's refusal to give consent to a search of his residence, and that this misconduct requires that his convictions be reversed. We find the State's claims of error to be moot and therefore dismiss its appeal. On the cross-appeal, we affirm the judgment of conviction.



After Carmouche attacked his girlfriend, he was charged with four felonies: attempted strangulation, Idaho Code § 18-923; second degree kidnapping, I.C. §§ 18-4501, 18-4503; aggravated battery by use of a deadly weapon, I.C. §§ 18-907(1)(b), 18-903(b); and domestic battery, I.C. §§ 18-918(2)(a), 18-903(b). Part II of the indictment alleged that Carmouche was subject to a sentence enhancement as a persistent violator of the law, I.C. § 19-2514, with respect to each of the four felony charges. The matter proceeded to a bifurcated trial with the criminal charges tried before a jury, which found Carmouche guilty of all four offenses, and the persistent violator sentencing enhancements tried to the court by consent of the parties.

The only issue to be determined at the bench trial was whether Carmouche had been convicted of felony offenses on at least two prior occasions. See I.C. § 19-2514. The State placed into evidence certified copies of two prior felony judgments that named the defendant as Darren Dustin Carmouche and stated identical dates of birth and social security numbers for the defendant. The State then sought to establish that Carmouche had the same date of birth and social security number as those shown on the judgments in order to establish that he was the same person named in the judgments. A copy of Carmouche's Idaho driver's license, bearing the same date of birth as the judgments, was admitted into evidence without objection. The State also called a detective who testified that she had read and printed a report from an " ILETS machine" that contained

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Carmouche's social security number. Without defense objection, she then testified to the social security number shown on the report, which matched the social security number on the judgments. When the prosecutor offered the report itself into evidence, however, the defense objected on hearsay grounds. The prosecutor, when asked by the court, was unable to identify an applicable hearsay exception, and he eventually withdrew his request for admission of the document. At the close of the evidence, the parties and the court discussed the admissibility of the detective's testimony in which she read the social security number from the ILETS report and the weight to be afforded that testimony. The defense did not, however, move to strike this testimony as hearsay or on any other ground.

At the close of the proceeding, the district court found the State had proved the persistent violator allegation. The court stated:

The same date of birth of May 17, 1980 is the same on both [admitted judgments of conviction]. The unobjected to and unrebutted testimony of [the detective] was that ILETS reflected the Social Security number of [reading Social Security number]. The ILETS report was— the State then sought to admit that [report]. And that was objected to, and the objection was sustained about the basis of hearsay and not falling within any of the exceptions to the hearsay rule.
However, the testimony as to what Social Security number reflected for the driver's license which was admitted into evidence as [Exhibit] 62A related to that Social Security number.
The court thus finds, barely, that the State has met their burden of establishing the prior convictions beyond a reasonable doubt as to each of the two prior convictions set out as State's Exhibits 63 and 64 as alleged in Part II of the information with respect to each of the four counts. And I will enter judgment accordingly.

Thereafter, however, the court filed written findings of fact and conclusions of law acquitting Carmouche on the persistent violator allegation. The court recounted its ruling that the ILETS report was hearsay and then concluded that the detective's testimony as to what the ILETS report stated— Carmouche's social security number— was also hearsay. The court then said:

The Court is required to make its findings as to Part II of the Amended Superceding Indictment upon admissible evidence. When the Court is the trier of fact, the Court may disregard any inadmissible evidence in making its findings. The mere fact that a witness testifies as to inadmissible hearsay without objection or without a motion to strike does not require the Court to ignore that the evidence is inadmissible. The Court thus finds and concludes that the State presented no admissible evidence as to the social security number of the defendant at trial in this case.

The district court further wrote that it " finds and concludes that this Court erred in considering the hearsay testimony as to the defendant's social security number in making its oral ruling at the conclusion of the Court trial on Part II of the Amended Superceding Indictment." The court then found that the remaining evidence was insufficient to prove that Carmouche was the defendant named in the prior judgments of conviction, and thus held that the State had not proven Carmouche to be a persistent violator.

The State filed a motion for reconsideration of this finding. It argued that given the court's determination that the testimony as to Carmouche's social security number was inadmissible, the proper remedy was a new trial on the persistent violator enhancement rather than an acquittal for insufficient evidence. The district court denied the motion and imposed sentences without a persistent violator enhancement.

The State appeals, challenging the district court's acquittal of Carmouche on the persistent violator enhancement, and Carmouche ...

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