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State v. Herren

Supreme Court of Idaho

December 9, 2014

STATE OF IDAHO, Plaintiff-Respondent,
v.
NATHAN WADE HERREN, Defendant-Appellant

As Amended February 25, 2015.

2014 Opinion No. 131

Page 1127

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. Robyn A. Fyffe argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Jessica M. Lorello argued.

HORTON, Justice. Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES, CONCUR.

Page 1128

SUBSTITUTE OPINION, THE COURT'S PRIOR OPINION DATED SEPTEMBER 26, 2014 IS HEREBY WITHDRAWN.

HORTON, Justice.

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 ...


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