State v. Bowman

Decision Date17 December 1993
Docket NumberNo. 20311,20311
Citation124 Idaho 936,866 P.2d 193
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Joan BOWMAN, Defendant-Appellant.
CourtIdaho Court of Appeals

Rigby, Thatcher, Andrus, Rigby & Kam, Rexburg, for defendant-appellant. Gregory W. Moeller, argued.

Larry EchoHawk, Atty. Gen., Douglas A. Werth, Deputy Atty. Gen., Boise, argued, for plaintiff-respondent.

PERRY, Judge.

Joan Bowman was found guilty by a jury of the misdemeanor offenses of trespass, I.C. § 18-7008(8); resisting, delaying or obstructing a public officer, I.C. § 18-705; and battery upon a peace officer, I.C. §§ 18-903,

-915. Following the guilty verdicts, the magistrate granted Bowman's motion for judgment of acquittal as to the trespass charge, but denied the motion as to the other charges. Bowman appealed to the district court, which affirmed the guilty verdicts as to the resisting, delaying or obstructing a police officer and battery charges. The district court also reinstated the guilty verdict as to the trespass charge. Bowman appeals from the district court's order. For the reasons stated below, the magistrate's decision is affirmed in part and reversed in part.


The facts of this case were vehemently disputed at trial. It is, however, undisputed that on May 27, 1991, Joan Bowman arranged to meet her sister, Susan Anderson, at the Holiday Theater in Rexburg. Anderson arrived before Bowman and feared there may have been some confusion regarding which theater was to be the meeting point. Therefore, after purchasing a ticket at the Holiday, Anderson left the theater and went to the nearby Paramount Theater to look for her sister. While waiting at the Paramount, Anderson purchased a bag of popcorn. Anderson, carrying the popcorn, returned to the Holiday complex and eventually found Bowman waiting in another auditorium. The two passed through the lobby to enter another theater within the Holiday complex. Prior to entering the theater to view the movie they had intended, Anderson was approached by the manager, Rudy Ballard. Ballard informed the women that the popcorn would have to be discarded before they entered the theater. At this point, the two versions of the incident diverge. According to Bowman, Anderson then told Ballard that she had just purchased the popcorn, did not wish to see it go to waste and offered to leave it in the foyer. Ballard, however, demanded the popcorn be thrown away. Anderson refused to discard it and informed Ballard that she was taking the popcorn into the theater, but would set it on the floor and not eat any of it. According to Bowman, Ballard never requested that the women leave the theater.

According to the state's witnesses, however, once Ballard informed the women they would not be able to take the popcorn into the theater, they became disorderly. Ballard asked the women to leave the theater and offered to refund the money for their tickets. The two ignored him and went into the theater to watch the movie.

Both parties agree that the police were summoned, and initial contact with the women was made by Officer Egbert. Beyond that, however, the two versions again differ greatly. According to Bowman, Officer Egbert requested that the women speak with him in the lobby regarding the matter. Bowman According to the prosecution, Officer Egbert was accompanied on his initial contact with the women by Ballard, who asked the women again to leave, in the officer's presence, telling them they would be charged with trespassing if they didn't leave. After Officer Egbert asked the women to step into the lobby to discuss the situation, they became obnoxious and boisterous. Officer Egbert informed them that they had been asked to leave and if they refused to comply, he would be forced to arrest them for trespassing. Both Bowman and Anderson said they were not leaving the theater. After Officer Egbert summoned additional assistance, he and three other officers approached the women, again informing them that if they didn't leave, they would be arrested. After advising the women that they were under arrest, Officer Egbert reached down and touched Bowman's wrist area, at which time she "exploded" and began yelling, kicking and fighting with the officers. During the struggle in the theater, Bowman kicked, punched and bit Officer Egbert. On the way to the patrol car, Bowman punched Officer Egbert again and spit in his face. At the police station, Bowman was abusive and combative, refusing to cooperate with the officers and again spit in Officer Egbert's face.

[124 Idaho 939] says she informed the officer that she would be happy to talk to him when the movie ended. When he persisted, she told him that he did not have a warrant for her arrest and, therefore, she did not feel she needed to talk with him until after the movie was over. Officer Egbert left and returned later with three other officers. The officers approached the women, who were quietly watching the movie. Making no attempt to speak with the women, the officers pulled the women from their seats and removed them from the theater, placing them under arrest.

The case was tried before a jury. Following presentation of the state's case, Bowman moved for a judgment of acquittal on all three charges. The magistrate reserved ruling on this motion. The jury found Bowman guilty of trespass, I.C. § 18-7008(8); resisting, delaying and obstructing a public officer, I.C. § 18-705; and battery upon a peace officer, I.C. §§ 18-903, -915. Following the verdicts, the magistrate issued a memorandum decision granting the motion for judgment of acquittal as to the trespass charge, but otherwise denying the motion for judgment of acquittal on the remaining two charges.

Bowman appealed to the district court, which reversed the magistrate's order vacating the trespass verdict. The district court affirmed the guilty verdicts on the obstructing and battery charges, and affirmed the magistrate on all other issues.

Bowman now appeals, citing numerous errors in the district court's decision. Bowman claims the magistrate erred in denying her pre-trial motion either to suppress evidence or to dismiss the charges on the grounds that the arrest was made illegally and all evidence obtained therefrom was tainted. She also claims the magistrate erred when it failed to dismiss the charges against her because the arrest constituted an unreasonable seizure of her person. Bowman further alleges as error the magistrate's denial of her motion for judgment of acquittal, the refusal to excuse three prospective jurors who were members of the prosecuting attorney's religious congregation, the refusal to give a proposed jury instruction, the failure to correctly instruct the jury on the law of arrest and the denial of her motion for a new trial. We will address the issues as they occurred chronologically during the proceedings below.


We first note that on review of a decision of the district court rendered in its appellate capacity, we examine the record of the trial court independently of, but with due regard for, the district court's intermediate appellate decision. Waggoner v. State, 121 Idaho 758, 760, 828 P.2d 321, 323 (Ct.App.1991); Harney v. Weatherby, 116 Idaho 904, 906, 781 P.2d 241, 243 (Ct.App.1989).


The first two issues Bowman raises relate to the legality of her arrest. Bowman claims that her pre-trial motion to suppress evidence or to dismiss the charges should Prior to trial, the magistrate denied Bowman's motion to suppress or to dismiss based on her arrest. In her motion, Bowman claimed that the arrest did not comport with I.C. §§ 19-603 and 19-608 and was therefore illegal. She also sought to have all the evidence following her arrest suppressed as "fruits of the poisonous tree," including the evidence upon which the battery and obstructing charges were based.

[124 Idaho 940] have been granted because the arrest violated Idaho statutes. As a second issue, Bowman claims that all the evidence against her should have been suppressed because it was the result of an "unreasonable seizure" of her person, in violation of the United States and Idaho Constitutions. Bowman did not, however, raise the second issue in either her pre-trial suppression motion or during the trial. It is well-settled that issues not raised below will not be considered for the first time on appeal. State v. Russell, 122 Idaho 488, 490, 835 P.2d 1299, 1301 (1992). Even issues involving the constitution are generally not considered on appeal unless they are properly raised below. George W. Watkins Family v. Messenger, 118 Idaho 537, 541, 797 P.2d 1385, 1389 (1990); Sullivan v. Sullivan, 102 Idaho 737, 739 n. 5, 639 P.2d 435, 437 n. 5 (1981). Therefore, we do not consider Bowman's second argument regarding an improper "seizure" of her person.

Idaho Code § 19-603 states:

A peace officer may make an arrest in obedience to a warrant delivered to him, or may, without a warrant, arrest a person:

1. For a public offense committed or attempted in his presence....

A "public offense" includes misdemeanors. See Burks v. United States, 287 F.2d 117, 122 (9th Cir.1961); People v. Sjosten, 262 Cal.App.2d 539, 68 Cal.Rptr. 832, 835 (Cal.Ct.App.1968). See also BLACK'S LAW DICTIONARY 370 and 1230 (6th ed. 1990). If the misdemeanor is not committed in the officer's presence, however, the officer must obtain a warrant before making the arrest. See 2 WILLIAM E. RINGEL, SEARCHES & SEIZURES, ARRESTS AND CONFESSIONS § 23.6(d) (1993); 5 AM.JUR.2D Arrest § 30 (1962).

Idaho Code § 19-608 states:

The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person to be arrested is actually engaged in the commission of, or an attempt to commit, an offense, or is pursued immediately after its...

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