from the District Court of the First Judicial District, State
of Idaho, Bonner County. Hon. Barbara Buchanan, District
of conviction for lewd conduct with a minor under sixteen,
D. Fredericksen, State Appellate Public Defender; Ben P.
McGreevy, Deputy Appellate Public Defender, Boise, for
Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy
Attorney General, Boise, for respondent.
Z. Nuss appeals from his judgment of conviction for lewd
conduct with a minor child under the age of sixteen. Nuss
argues that the district court abused its discretion by
allowing a "facility dog" and its handler in the
courtroom during the victim's testimony. Nuss asserts
their presence was prejudicial and deprived him of a fair
trial. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
2016, the State charged Nuss under Idaho Code § 18-1508
with one felony count of committing a lewd act on a
fourteen-year-old child. At the time of trial, the victim was
sixteen years old. Before trial, the district court informed
the parties that it would allow a "facility
dog"to be present during the victim's
testimony pursuant to I.C. § 19-3023. Nuss objected,
arguing that the facility dog's "mere presence"
or "knowledge" of the dog would be prejudicial and
that the facility dog would make the victim appear "more
vulnerable" and would give her testimony "more
credence and emotionality."
district court overruled the objection. It noted the
potential for prejudice, however, and its intent to make the
facility dog's presence "as low key as
possible." Further, the district court stated its plan
to excuse the jury from the courtroom for purposes of moving
the facility dog in and out of the courtroom.
trial, the district court instructed the jury about the
possible presence of a facility dog and to disregard its
presence. During a recess before the victim took the stand,
the facility dog's handler situated the facility dog
under the witness's seat and took a seat behind the
witness stand. At that point, Nuss objected to the
handler's presence as prejudicial. The district court
overruled the objection, noting the handler's sole
purpose was to deal with the facility dog if there were any
victim then testified. During a recess in this testimony, the
district court informed the parties that it intended to allow
the handler to walk the facility dog out of the courtroom in
the jury's presence to avoid the disruption of another
recess. Nuss did not object, and after the victim's
testimony, the district court excused the handler, whom he
identified for the jury at that time as the facility
dog's trainer. At the conclusion of trial, the jury found
Nuss guilty, and he timely appeals.
STANDARD OF REVIEW
trial court's discretionary decision is reviewed on
appeal, the appellate court conducts a multi-tiered inquiry
to determine whether the district court: (1) correctly
perceived the issue as one of discretion; (2) acted within
the boundaries of such discretion; (3) acted consistently
with any legal standards applicable to the specific choices
before it; and (4) reached its decision by an exercise of
reason. State v. Herrera, 164 Idaho 261, 270, 429
P.3d 149, 158 (2018).
Court exercises free review over the application and
construction of statutes. State v. Reyes, 139 Idaho
502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the
statute's language is plain and unambiguous, this Court
must give effect to the statute as written, without engaging
in statutory construction. State v. Burnight, 132
Idaho 654, 659, 978 P.2d 214, 219 (1999); State v.
Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App.
2000). The statute's language is to be given its plain,
obvious, and rational meaning. Burnight, 132 Idaho
at 659, 978 P.2d at 219. If the language is clear and
unambiguous, there is no occasion for the court to resort to
legislative history or rules of statutory interpretation.
Escobar, 134 Idaho at 389, 3 P.3d at 67. When this
Court must engage in statutory construction because an
ambiguity exists, it has the duty to ascertain the
legislative intent and give effect to that intent. State
v. Beard, 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct. App.
2001). To ascertain such intent, not only must the literal
words of the statute be examined, but also the context of
those words, the public policy behind the statute ...