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State v. Sherman

Court of Appeals of Idaho

April 1, 2014

STATE OF IDAHO, Plaintiff-Respondent,
v.
NIKOLAS LEE SHERMAN, Defendant-Appellant

Page 994

Editorial Note:

This decision is not final until exception of the 21 day petition for rehearing period. Pursuant to rule 118 of the Idaho Appellate Rules

2014 Opinion No. 27

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John P. Luster, District Judge. Hon. James Stow, Magistrate.

John M. Adams, Kootenai County Public Defender; Jay Logsdon, Deputy Public Defender, Coeur d'Alene, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent.

GRATTON, Judge. Chief Judge GUTIERREZ and Judge LANSING CONCUR.

OPINION

Page 995

GRATTON, Judge

Nikolas Lee Sherman appeals from the district court's appellate decision affirming the magistrate's order denying his motion to dismiss and refusing his requested jury instruction. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

A resident contacted police after finding an intoxicated male on his property. When a police officer arrived at the property, the intoxicated male attempted to flee and was restrained by the officer. The individual was identified as Sherman and the officer found two prescription drug bottles in Sherman's pockets, one bottle prescribed to Sherman and one bottle prescribed to Mr. Gallegos. Sherman initially told the officer that he was holding the prescription drugs for a female friend. The police officer arrested Sherman and transported him to the police station, where Sherman changed his story and told the officer he was holding the prescription drugs for a friend named Mr. Wilhelm. The officer returned the prescription drug bottle to Mr. Gallegos. The prescription drugs may have been in Mr. Gallegos' vehicle which was parked outside his home and left unlocked. The officer located Sherman's vehicle near Mr. Gallegos' home and was informed that Sherman had been seen in the area prior to the officer's arrival.

Sherman was charged with the unlawful possession of a prescription drug, Idaho Code § 54-1732(3)(c). He filed a motion to dismiss, claiming that I.C. § 54-1732(3)(c) violated his substantive due process rights both on its face and as applied to him. The magistrate denied Sherman's motion to dismiss. Sherman filed a motion to reconsider the magistrate's decision. The magistrate declined to revisit its prior ruling, but invited argument on an issue involving the jury instructions. Specifically, Sherman requested

Page 996

that the court provide an instruction regarding the warehousemen exception to unlawful possession of prescription drugs found in I.C. § 54-1734(2)(f). After argument, the magistrate declined Sherman's request to provide the instruction.

Thereafter, Sherman entered a conditional guilty plea, pursuant to Idaho Criminal Rule 11, to the unlawful possession of a prescription drug. The magistrate imposed a term of 180 days in jail with 174 days suspended, with Sherman to serve sixteen hours in the sheriff's labor program in lieu of six days in jail. The magistrate also imposed a two-year term of unsupervised probation and imposed a fine. Sherman's sentence was stayed pending his appeal.

Sherman appealed to the district court. The district court, in its intermediate appellate capacity, affirmed the magistrate's denial of Sherman's motion to dismiss and the magistrate's denial of ...


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