2014 Unpublished Opinion No. 388
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.
Judgment of conviction for felony driving under the influence and operating a vehicle without the owner's consent,
Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy Appellate Public Defender, Boise, for appellant. Sally J. Cooley argued.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent. John C. McKinney argued.
James Gerald Rhoads appeals from his judgment of conviction for felony driving under the influence, Idaho Code § 18-8004, and felony operating a vehicle without the owner's consent, I.C. § 49-227. Rhoads alleges the district court erred by admitting a hearsay statement as an excited utterance.
I. FACTUAL AND PROCEDURAL BACKGROUND
Rhoads and a twenty-year-old woman (C.H.) spent the morning consuming alcohol and later obtained a gallon of wine on the way to the apartment of C.H.'s friend. Eventually, Rhoads and C.H. left the apartment with the bottle of wine, and without permission took the friend's vehicle. The friend called police and was later notified that her vehicle was involved in an accident on Bogus Basin Road. The vehicle had slid off the road and hung over a cliff--supported only by a barbed-wire fence.
At some point after the accident, the pair climbed up an embankment and began to walk down the road. A witness testified that he observed Rhoads and C.H. arguing, struggling, or trying to hold each other up. Both were covered with mud from the knees down and were barefoot. The man did not see the vehicle at first but once he pulled to the side of the road, he could see the vehicle hanging over the edge of the cliff against the barbed wire. The man testified that C.H. took a swing at Rhoads' arm and yelled that he had wrecked her friend's car. Rhoads objected to this testimony, but the court allowed the testimony as an excited utterance. When the man told Rhoads he reported the accident, Rhoads became distraught and left followed by C.H.
Due to the cold weather, the responding officer had Rhoads and C.H. sit in the back of her patrol car. A video was admitted showing Rhoads and C.H. in the back of the patrol car discussing that another individual, Jeff, had crashed the vehicle and ran off after the accident. At one point during the video, C.H. said that Rhoads was the driver. Rhoads responded by telling her not to talk. C.H. then fell back into the narrative that Jeff was the driver but later admitted that Jeff was a fictitious person. Rhoads' sunglasses were found between the driver's seat and the driver's door. Officers also recovered the bottle of wine, now empty, from the back seat of the vehicle. Rhoads' breath test returned at .271 and .275 breath alcohol content.
The State charged Rhoads with felony driving under the influence, felony operating a vehicle without the owner's consent, and failure to report an accident. At trial, it was the defense theory that C.H., not Rhoads, was driving at the time of the accident. C.H. testified that she remembered only bits and pieces of the evening of the accident. She first remembered trying to rest at her friend's apartment because she was overly intoxicated. She then remembered looking for cigarettes in the vehicle while Rhoads was driving and then remembered crawling out of the passenger door with Rhoads following behind her. Several days after the accident, she was diagnosed with a concussion, back strain, and abdominal strain. The windshield on the passenger side was partially cracked, which may explain how she received the concussion. Rhoads offered photographs that showed mud throughout the interior of the vehicle, that the seat was close to the steering wheel, and two large shoes were on the passenger side. The State's photographs showed ...