State v. Brashier

• Decision Date: 30 October 1995
• Docket Number: No. 21599,21599
• Citation: 905 P.2d 1039,127 Idaho 730
• Parties: STATE of Idaho, Plaintiff-Respondent-Cross Appellant, v. Johnny Lynn BRASHIER, Defendant-Appellant-Cross Respondent.
• Court: Idaho Court of Appeals

Page 1039

905 P.2d 1039

127 Idaho 730

STATE of Idaho, Plaintiff-Respondent-Cross Appellant, v. Johnny Lynn BRASHIER, Defendant-Appellant-Cross Respondent.

No. 21599.

Court of Appeals of Idaho.

Oct. 30, 1995.

Lloyd J. Webb (argued) and Curtis R. Webb, Twin Falls, for appellant.

Hon. Alan G. Lance, Attorney General; Myrna A.I. Stahman, Deputy Attorney General, Boise, and Catherine L. Derden (argued), Arkansas, for respondent.

LANSING, Judge.

Johnny Lynn Brashier appeals following his conviction for committing the infamous crime against nature, I.C. § 18-6605. In the district court he filed two motions to dismiss the charge. His first motion asserted that an element of the offense, the penetration of the victim, had not been proved at the preliminary hearing. Brashier's second motion sought dismissal for violation of his right to a speedy trial. Upon the denial of these motions, Brashier entered a conditional plea of guilty to the infamous crime against nature charge, and the State dismissed two other felony counts. Brashier now appeals the adverse rulings on his motions to dismiss, having reserved the right to appeal pursuant to I.C.R. 11(a)(2). The State cross appeals from the sentence imposed, arguing that the district court abused its discretion because it acted under an erroneous understanding of the maximum penalty for the crime. The State also contends that the district court erred in granting excess credit on the sentence for time served. For the reasons stated below, we affirm the denials of Brashier's motions to dismiss and remand this case for resentencing and recalculation of credit for time served.

I.

THE EVIDENCE PRESENTED AT THE PRELIMINARY HEARING SUPPORTED A FINDING OF PROBABLE CAUSE TO BELIEVE THAT PENETRATION HAD OCCURRED.

We consider first Brashier's contention that the infamous crime against nature charge should have been dismissed following the preliminary hearing for failure of proof of penetration.

At the preliminary hearing, the victim testified that on August 11, 1992, Brashier approached her in a restroom at a highway rest area. Brashier grabbed her hair, put a knife to her back and threatened to kill her if she did not remain quiet. He then took her across the parking lot and into a wooded area where he pushed her down and ordered her to remove her clothes. Brashier removed his shorts and attempted to push his penis into the victim's mouth. The victim resisted and tried to keep her mouth closed. She testified that Brashier pushed his penis "in my lips" and immediately ejaculated. After the victim convinced him that she would not contact the police, Brashier left the scene.

Upon this testimony, the magistrate found probable cause to believe that Brashier had committed infamous crime against nature, I.C. § 18-6605. Brashier filed a motion before the district court to dismiss this charge on the ground that the preliminary hearing evidence did not support a finding of probable cause to believe that Brashier's penis had penetrated the victim's mouth. The district court denied the motion.

The inquiry to be addressed at a preliminary hearing is whether a public offense has been committed and there is probable or sufficient cause to believe that the defendant committed the offense. I.C.R. 5.1(b). A finding of probable cause must be based upon substantial evidence of every material element of the offense charged. I.C.R. 5.1(b); State v. Munhall, 118 Idaho 602, 606, 798 P.2d 61, 65 (Ct.App.1990); State v. Greensweig, 102 Idaho 794, 796, 641 P.2d 340, 342 (Ct.App.1982).

The term "infamous crime against nature" includes the act of fellatio. State v. Izatt, 96 Idaho 667, 669-70, 534 P.2d 1107, 1109-10 (1975); State v. Carringer, 95 Idaho 929, 930, 523 P.2d 532, 533 (1974); State v. Larsen, 81 Idaho 90, 96-7, 337 P.2d 1, 4 (1959), cert. denied, 361 U.S. 882, 80 S.Ct. 154, 4 L.Ed.2d 119 (1959); State v. Altwatter, 29 Idaho 107, 109-11, 157 P. 256, 256-57 (1916); State v. Holden, 126 Idaho 755, 757, 890 P.2d 341, 344 (Ct.App.1995). Although commission of this offense requires that there be penetration, I.C. § 18-6606 provides that "[a]ny sexual penetration, however slight, is sufficient to complete the crime against nature." Several times during the victim's testimony at the preliminary hearing she stated that Brashier had put his penis "in" her lips and "past" her lips. This testimony constitutes substantial evidence of penetration sufficient to satisfy this element as it is explained in I.C. § 18-6606. Therefore, the district court's denial of Brashier's motion to dismiss for failure of proof of penetration is affirmed.

II.

BRASHIER WAS NOT DENIED A SPEEDY TRIAL.

In August 1992, when the present offense was committed, Brashier was on parole for an attempted burglary conviction. For reasons unrelated to the instant offense, his parole was revoked in January 1993, and he was reincarcerated at the Idaho State Penitentiary. The Commission of Pardons and Parole (the Commission) set a new parole release date of May 12, 1993. In April 1993, the Gooding County sheriff wrote a letter to the Commission stating that Brashier was a suspect in the above-described sexual assault, that the sheriff's office was awaiting DNA testing to identify the perpetrator and that, in the sheriff's opinion, Brashier was not a good candidate for parole. The sheriff later contacted the Commission office and relayed that the victim had identified Brashier as her attacker and that "physical evidence consisting of a fingerprint" had been discovered. Due to the seriousness of the possible charges, the Commission elected to void the tentative parole date, and Brashier remained incarcerated.

Brashier was formally charged by complaint in the present case on November 16, 1993. On January 31, 1994, Brashier filed a motion to dismiss the charges on the ground that he had been denied his right to a speedy trial. He asserted that the sheriff's communications informing the Commission that Brashier was a suspect in the sexual assault prevented Brashier from being paroled on May 12, 1993, as scheduled. Brashier averred that because he would have been released on parole but for the sheriff's intervention, the district court should take into account the "delay" from May 12, 1993, in assessing whether Brashier's speedy trial rights were violated. The district court denied the motion, holding that Brashier's speedy trial rights were not implicated because the sheriff's actions did not amount to an arrest or detention for the sexual assault. On appeal, Brashier reasserts that the denial of parole constituted a deprivation of his liberty implicating his rights to speedy trial under the United States Constitution, the Idaho Constitution and I.C. § 19-106.

A. Sixth Amendment

The Sixth Amendment to the United States Constitution guarantees that, "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ..." It is Brashier's contention that where parole on one offense has been denied because the defendant is a suspect in a second offense the "speediness" of the defendant's trial for the second offense must be measured from the date that parole otherwise would have occurred.

The parties have not cited, and we have not found, authority from any jurisdiction addressing the specific circumstance presented here. We find guidance, however, in the United States Supreme Court's decision in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The defendants in that case were charged with consumer fraud allegedly committed during a period from March 15, 1964, until February 6, 1967. Although the defendants were the subject of a Federal Trade Commission order issued February 6, 1967, and a series of newspaper articles published in October 1967, they were not arrested or charged until an indictment was issued on April 19, 1970. The United States District Court dismissed the indictment for lack of speedy prosecution. The Supreme Court reversed, however, holding that "the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an 'accused,' an event which occurred in this case only when the appellees were indicted on April 21, 1970." Id. at 313, 92 S.Ct. at 459. The Court stated, "[I]t is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment." Id. at 320, 92 S.Ct. at 463. The court further observed that it is the statute of limitation that provides the primary guarantee against the government bringing overly stale criminal charges. Id. at 322, 92 S.Ct. at 464.

In the present case, Brashier was not arrested or charged until November 16, 1993. As of May 12, 1993, there was no complaint pending against him stemming from the sexual assault, and no arrest warrant had been issued or served. Therefore, applying the Supreme Court's holding in Marion, the Sixth Amendment speedy trial guarantee had no application during the period between May 12 and November 16.

We are unpersuaded by Brashier's assertion that his loss of the opportunity for parole was tantamount to an arrest for the instant offense. The Commission of Pardons and Parole possesses broad discretion to determine whether parole should be granted to an inmate. Vittone v. State, 114 Idaho 618, 620, 759 P.2d 909, 911 (Ct.App.1988). To aid in its decision making, the Commission is charged with securing pertinent available information about the prisoner, including the inmate's social history and criminal record, and the Commission may solicit information about the inmate from outside sources, including law enforcement authorities. I.C. § 20-224. Information that an inmate is a suspect in another, as yet uncharged, crime is relevant to the parole decision. A rule that a denial of parole...