2013 Opinion No. 104
Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Kathryn A. Sticklen, Senior Judge. Hon. Kevin Swain and Hon. Theresa Gardunia, Magistrate Judges.
The order of the district court affirming the magistrate court's judgment of conviction for violation of a no contact order is reversed. The order of the district court affirming the magistrate court's order revoking Herren's withheld judgment is affirmed.
Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant. Robin A. Fyffe argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Jessica M. Lorello argued.
This appeal comes before this Court upon review of a decision from the Court of Appeals. In the magistrate division, Nathan Herren was found guilty of violating a no contact order and violating the terms of probation imposed in an earlier case. The district court affirmed. The Court of Appeals reversed the district court and we granted the State's petition for review. We affirm the district court's decision in part and reverse in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case stems from a disagreement between Herren and Kip McDermott who were neighbors in Eagle Springs Estates. In October 2007, Herren cut down a portion of McDermott's fence and pleaded guilty to misdemeanor malicious injury to property. The magistrate court entered a withheld judgment and a no contact order in July 2008, which stated "[i]t is hereby ordered that [Herren] shall not contact (including: in person or through another person, or in writing or e-mail, or by telephone, pager, or facsimile) or attempt to contact, harass, follow, communicate with, or knowingly remain within 100 feet of: Kip McDermott."
On January 20, 2009, despite knowing that McDermott would likely be present, Herren attended an Eagle Springs Estates Homeowner's Association meeting at the library of Shadow Hills Elementary School. Herren arrived prior to McDermott and sat in the middle of the room. Once McDermott arrived, Herren moved from his seat in the middle of the room to the back of the room, but did not leave the meeting. McDermott contacted law enforcement because of Herren's continued presence at the meeting. Herren was arrested and charged with the crime of violation of a no contact order under Idaho Code section 18-920. The two men dispute whether Herren made eye contact with McDermott at the meeting.
The case was tried before the magistrate court without a jury. The arresting officer testified that the room was seventy-five feet long. Herren testified that he decided to stay at the meeting because he believed the room was more than 100 feet long. However, Herren admitted that he returned to the library at a later date, measured the room, and found the room was eighty-one feet long on the diagonal. The magistrate court found Herren guilty of violating the no contact order because he knowingly remained within 100 feet of McDermott.
The State filed a motion alleging that Herren had violated the terms of probation in Herren's earlier malicious injury to property case. The State's motion was based upon its allegation that Herren had committed a new crime in violation of the terms of his withheld judgment. After being found guilty of the violation of a no contact order, Herren admitted to violating his probation. As a consequence, the magistrate court revoked Herren's withheld judgment and entered a judgment of conviction for misdemeanor malicious injury to property.
Herren timely appealed both his judgment of conviction for violating the no contact order and the revocation of his withheld judgment for the malicious injury to property charge. The appeals were consolidated. Before the district court, Herren argued the crime of violation of a no contact order cannot be committed when there is no actual contact between the protected person and the person subject to the no contact order and thus, there was not substantial evidence to support his conviction. The district court rejected Herren's argument and determined that there was substantial evidence to support the magistrate court's determination that Herren was guilty of violating the terms of the no contact order by willfully remaining within 100 feet of McDermott. The district court affirmed Herren's judgment of conviction and the finding that he had violated the terms of his probation.
Herren appealed and the Court of Appeals, in a split decision, reversed. Following the Court of Appeals' decision, the State petitioned this ...