Bodenbach v. State, 49245

CourtCourt of Appeals of Idaho
Writing for the CourtGRATTON, JUDGE
PartiesADAM DAVID BODENBACH, Petitioner-Appellant, v. STATE OF IDAHO, Respondent.
Docket Number49245
Decision Date22 November 2022

ADAM DAVID BODENBACH, Petitioner-Appellant,
v.

STATE OF IDAHO, Respondent.

No. 49245

Court of Appeals of Idaho

November 22, 2022


UNPUBLISHED OPINION

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Steven J. Hippler, District Judge.

Judgment summarily dismissing petition for post-conviction relief, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

GRATTON, JUDGE

Adam David Bodenbach appeals from the district court's summary dismissal of his petition for post-conviction relief. Bodenbach contends the court erred in dismissing his claim of ineffective assistance of counsel for failing to hire an expert witness toxicologist. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In January 2017, Bodenbach shot and killed Ryan Banks. The State charged Bodenbach with first degree murder, the commission of a crime with a firearm, and possession of cocaine. The following evidence was elicited during the jury trial.

The night began with Bodenbach and a friend, Kimsey, injecting cocaine between 8:00 p.m. and 10:00 p.m. Eventually Banks joined them to hang out. Bodenbach and Kimsey began to argue about Bodenbach borrowing Kimsey's car. The argument escalated with Kimsey pushing Bodenbach; Banks intervened by pushing Bodenbach backwards into Bodenbach's room and

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pinning him on his bed. Bodenbach testified that Banks' hands were around his throat and choking him. Kimsey pulled Banks off Bodenbach, and Kimsey and Banks walked to Banks' apartment. Kimsey stayed with Banks for a while and then went back to check on Bodenbach. Kimsey found Bodenbach in his room tearing his room apart by flipping the mattress and throwing clothes around while trying to find his handgun. Bodenbach accused Banks of stealing his handgun. Kimsey returned to Banks' apartment, giving Bodenbach time to calm down. Bodenbach eventually found his handgun in his bedroom. Bodenbach testified he was worried Banks may harm Kimsey so he walked to Banks' apartment with his handgun to check on Kimsey.

Here Kimsey's and Bodenbach's stories diverge. Bodenbach testified he knocked on Banks' door and announced himself as police; Bodenbach announced police because he was concerned how Banks may react. Bodenbach testified his handgun was in his jacket pocket at this time. Kimsey testified he did not hear a knock at the door; instead, Kimsey and Banks began to leave the apartment to smoke when Banks paused at the front door. Kimsey walked through the door and saw Bodenbach pointing his handgun in their direction. Kimsey testified he heard Bodenbach say, "You thought I was fucking kidding. You think I'm a fucking punk."

Banks said nothing but lunged towards Bodenbach. Bodenbach testified that Banks pulled a knife out of his waistband prior to lunging toward Bodenbach. Banks pushed Bodenbach into a pillar. From his angle, Kimsey could not see the front of Banks or Bodenbach's handgun. Bodenbach claimed Banks had the knife about six inches away from his torso when he pulled his handgun out and pulled the trigger. Bodenbach shot Banks shortly after midnight.

Kimsey testified he did not see a knife on Banks at any time that night. However, during his interview with law enforcement the night of Banks' death, Kimsey reported Banks had been carrying a knife before he was shot.

Immediately after the shooting, Bodenbach went back to his apartment, called 911, and reported he shot someone. Bodenbach placed his handgun on a table in his apartment and then purportedly took four milligrams of Xanax to calm down.

The Boise Police Department responded to the scene. Officers encountered Bodenbach talking on the phone and holding a knife, which he later claimed he found on the ground near where he shot Banks. Bodenbach was arrested and subsequently transported to the hospital due to complaints of neck and back pain. Around 2:00 a.m., Boise Police Detective Pietrzak interviewed

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Bodenbach at the hospital. Bodenbach later alleged he did not remember being interrogated by Detective Pietrzak.

In response to Bodenbach's testimony that he consumed cocaine and Xanax, the State called expert witness Dr. Gary Dawson. Dr. Dawson consults in pharmacology and the sub-discipline toxicology. Dr. Dawson testified to the effects of cocaine and opined that cocaine provides an instantaneous high that lasts a relatively short period--typically an hour or less with an hour and a half being the maximum. Dr. Dawson then testified about Xanax, dosage, and common effects. Dr. Dawson opined that four milligrams is a huge dose for someone who does not regularly take Xanax and that he would expect to see that person become unresponsive and sedated for possibly twelve to fourteen hours. Based upon his training and experience, and the accounts from eyewitnesses, Dr. Dawson did not believe Bodenbach was under the influence of Xanax after the shooting with a reasonable degree of medical certainty.

The jury found Bodenbach guilty on all counts. Bodenbach timely petitioned for post-conviction relief. He raised six claims of ineffective assistance of counsel; one of which alleged trial counsel was ineffective for failing to consult with and present testimony of a toxicologist to rebut the State's expert witness. Bodenbach provided his own affidavit that stated he told trial counsel he took four milligrams of Xanax after the shooting, causing him to have no memory of his statements to law enforcement, and he asked trial counsel to investigate the issue and acquire a toxicologist or pharmacologist to confirm Bodenbach's account. Bodenbach also provided the declaration of Dr. Loring Beals. Dr. Beals is a consulting forensic toxicologist. Dr. Beals' declaration opined that chronic cocaine abusers "exhibit a prolonged half-life of about 4 hours (versus 1 hour in the naïve user)." He explained common adverse side effects of cocaine usage. Dr. Beals also reported the consumption of Xanax would have moderated Bodenbach's affect attributable to the cocaine use.

The State answered and filed a motion for summary dismissal. The district court provided notice of intent to dismiss with a thorough analysis of the petition. The district court provided twenty days for Bodenbach to respond. Bodenbach did not file a response. The district court entered an order of dismissal and Bodenbach now timely appeals.

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II.

STANDARD OF REVIEW

A petition for post-conviction relief initiates a proceeding that is civil in nature. Idaho Code § 19-4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition for post-conviction relief differs from a complaint in an ordinary civil action. Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much more than a short and plain statement of the claim that would suffice for a complaint under Idaho Rule of Civil Procedure 8(a)(1). Rather, a petition for post-conviction relief must be verified with respect to facts within the personal knowledge of the petitioner, and affidavits, records, or other evidence supporting its allegations must be attached or the petition must state why such supporting evidence is not included with the petition. I.C. § 19-4903. In other words, the petition must present or be accompanied by admissible evidence supporting its allegations, or the petition will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011).

Idaho Code § 19-4906 authorizes summary dismissal of a petition for post-conviction relief, either pursuant to a motion by a party or upon the court's own initiative, if it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. When considering summary dismissal, the district court must construe disputed facts in the petitioner's favor, but the court is not required to accept either the petitioner's mere conclusory allegations, unsupported by admissible evidence, or the petitioner's conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct. App. 1986). Moreover, the district court, as the trier of fact, is not constrained to draw inferences in favor of the party opposing the motion for summary disposition; rather, the district court is free to arrive at the most probable inferences to be drawn from uncontroverted evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such inferences will not be...

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