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State v. Nuss

Court of Appeals of Idaho

March 21, 2019

STATE OF IDAHO, Plaintiff-Respondent,
v.
ELIJAH Z. NUSS, Defendant-Appellant.

          Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. Barbara Buchanan, District Judge.

         Judgment of conviction for lewd conduct with a minor under sixteen, affirmed.

          Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy Appellate Public Defender, Boise, for appellant.

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

          BRAILSFORD, JUDGE

         Elijah 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 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"[1]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."

         The 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.

         Before 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 issues.

         The 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.

         II. STANDARD OF REVIEW

         When a 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).

         This 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 ...


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