State v. Fox

• Decision Date: 09 September 2022
• Docket Number: Docket Nos. 45832,45833,45834,& 43835
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Matthew Michael FOX, Defendant-Appellant.
• Court: Idaho Supreme Court

517 P.3d 107

STATE of Idaho, Plaintiff-Respondent,
v.
Matthew Michael FOX, Defendant-Appellant.

Docket Nos. 45832
45833
45834
& 43835

Supreme Court of Idaho, Boise, December 2021 Term.

Opinion filed: September 9, 2022

Eric D. Fredericksen, State Appellate Public Defender, Boise, for Appellant. Elizabeth A. Allred argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Respondent. Jeffery D. Nye argued.

ZAHN, Justice.

517 P.3d 114

Matthew Michael Fox appeals from his convictions for robbery, aggravated battery, possession of marijuana, and possession of methamphetamine. For the following reasons, we affirm the convictions.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

On May 17, 2017, Ciena Mulvaney drove Mark Mood to his friend's house to buy methamphetamine. Mulvaney stayed in the car as Mood walked into the house's garage. After entering the garage, Fox approached Mood and hit him in the face with a gun, rendering Mood briefly unconscious. After Mood regained consciousness, Fox held a gun to Mood's head and threatened to kill him if he did not give Fox money that Mood owed him. Mood gave Fox money that he owed Fox for the methamphetamine.

After the altercation, Fox ran out of the garage to Mulvaney's car. Fox told Mulvaney that she needed to take Mood to the hospital. He then attempted to take Mulvaney's keys from her car but failed. However, Fox was able to take Mulvaney's phone from the car and walked away. Mood then emerged from the garage with a shirt over his face. Mood got back into Mulvaney's car and told her that "[Fox] has a gun and he hit me." Mulvaney and Mood then drove away. Fox followed Mulvaney and Mood in his own car, with a gun visible on the dashboard. Mulvaney, who was scared by the ordeal, pulled into the parking lot of Fernan Elementary School and began screaming for someone to call for help.

Marc Branscome, who was leaving his child's concert at the school, noticed Mulvaney in the parking lot hysterically trying to get someone to call 911. Branscome talked to Mulvaney, who conveyed information about the incident, including Fox's license plate number and vehicle information. Branscome subsequently called 911. Officer Procter responded to Branscome's 911 call and was directed to Mood and Mulvaney. The officer noted that Mulvaney was distraught with "labored breathing," and that Mood had an abrasion on the right side of his face. Officer Proctor received the license plate number and identification of Fox's car from Branscome and transmitted the information over the radio.

Officers Mortensen and Walther heard the dispatch announcement describing the vehicle and started searching for the car. The officers found a car matching the description parked outside of a Big Smoke store. The officers saw a woman in the passenger seat and waited for the driver. Fox exited the store and returned to the car and the officers arrested him. Fox had a black handgun in a holster on his left hip. The officers searched the car for the cell phone that was mentioned over dispatch. Additionally, the officers searched for drug paraphernalia because as the passenger exited the car the officers saw a broken glass pipe with burnt residue. During the search, the officers found (1) a briefcase with methamphetamine, marijuana, and other drug paraphernalia, (2) Mulvaney's cellphone, and (3) a Smith & Wesson handgun.

The night of May 17, the same day as Fox's arrest, Fox's former fiancé, Nicole Walker, called the Kootenai County Sheriff's department to report that her 9mm handgun was missing. Walker went into the police station the next day and identified the Smith & Wesson handgun found in Fox's car as hers.

B. Procedural History

The State charged Fox with the robbery of Mood (Count I), aggravated battery of Mood (Count II), grand theft by possession of stolen property for stealing Walker's gun

517 P.3d 115

(Count III), robbery of Mulvaney (Count IV), and possession of marijuana (Count V). On August 3, the State moved to join a related case where Fox was charged with possession of the methamphetamine found in the vehicle (Count VI). Fox objected to the State's motion for joinder and moved to sever, arguing that Counts I and II should be tried in a separate trial from Counts III, IV, and V. At the hearing on the motions, Fox clarified his position, arguing that the district court should have three trials, one for Counts I, II, and IV, one for Count III, and one for Counts V and VI.

On September 22, the district court granted the State's motion for joinder and denied Fox's motion to sever. The district court explained that joinder pursuant to Idaho Criminal Rule ("I.C.R.") 8(a) was appropriate because "all of the events described took place on the same date and all arose out of the same act or series of transactions that were connected together from the original incident, giving rise to each one of those separate counts." Further, the district court denied the motion to sever and set the matter for trial after determining the joinder of the six counts would not cause unfair prejudice to Fox pursuant to I.C.R. 14.

The trial commenced on November 1, 2017, and lasted three days. The jury found Fox guilty on all counts except Count III, grand theft by possession of stolen property. Following the jury verdicts in the case before us, Fox pleaded guilty in three other cases that arose from other items recovered on the day of his arrest.

In the first case, Fox was charged with burglary for stealing a gun and grand theft by unauthorized control for selling the stolen gun. Fox pleaded guilty to the grand theft charge and the State dismissed the burglary charge.

In the second case, Fox was charged with grand theft for stealing a credit card, and two counts of burglary for using the credit card at Home Depot and Big Smoke. Fox pleaded guilty to grand theft by unauthorized control and the State dismissed the burglary charges.

In the third case, Fox was charged with four counts of possession of counterfeit notes for the possession of counterfeit money found in his vehicle, and three counts of grand theft by possession for the possession of three stolen guns. Fox pleaded guilty to one count of possession of counterfeit notes and one charge of grand theft by possession and the State dismissed the other charges.

The district court held one sentencing hearing on all four cases. On the case before us in this appeal, the district court imposed concurrent, unified sentences on each count of 20 years, with 10 years fixed. For the other three cases, the district court imposed concurrent, unified sentences of fourteen years, with ten years fixed on each count, to be served concurrently with the 20-year sentences in this case. About a month after the sentencing hearing Fox filed motions pursuant to I.C.R. 35(b) for modification of all the sentences. The district court denied the motions.

Fox timely appealed.

II. ISSUES ON APPEAL

1. Whether the district court erred when it granted the State's motion to join and denied Fox's motion to sever?

2. Whether the district court erred when it admitted the State's Rule 404(b) evidence?

3. Whether the district court erred when it denied Fox's motion for a mistrial?

4. Whether the district court erred when it admitted the body camera footage and the 911 call?

5. Whether the prosecutor committed misconduct during his closing argument?

6. Whether the cumulative error doctrine mandates a retrial?

7. Whether the district court abused its sentencing discretion?

8. Whether the district court abused its discretion when it denied Fox's Rule 35 motion for a reduction of sentence?

517 P.3d 116

III. ANALYSIS

A. The district court did not err when it granted the State's motion to join and denied Fox's motion to sever.

Fox argues that the district court erred when it granted the State's motion to join the counts against him and abused its discretion in denying his motion to sever the counts.

1. Standard of review

When reviewing trial court rulings on I.C.R. 8 and I.C.R. 14 motions, "a proper and complete analysis should analyze each rule separately" and "with their proper standards of review." State v. Nava , 166 Idaho 884, 889–90, 465 P.3d 1123, 1128–29 (2020). Whether a district court properly joined charges pursuant to I.C.R. 8 is a question of law over which this Court exercises free review. Nava , 166 Idaho at 891, 465 P.3d at 1130.

However, this Court reviews a district court's denial of a motion to sever pursuant to I.C.R. 14 for an abuse of discretion. Id. at 890, 465 P.3d at 1129. Under the abuse of discretion standard, this Court asks "whether the trial court: ‘(1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason.’ " State v. Sarbacher , 168 Idaho 1, 4, 478 P.3d 300, 303 (2020) (quoting Lunneborg v. My Fun Life , 163 Idaho 856, 863, 421 P.3d 187, 194 (2018) ).

2. The district court did not err in granting the State's motion for joinder.

Fox argues that the charges against him were improperly joined because they did not result from the same act or transaction and were not part of a common scheme or plan. Fox maintains that evidence of different crimes that occurred in close temporal proximity to each other is insufficient to tie the charges together as part of the same act or transaction. Further, he contends that nothing in the allegations demonstrates the existence of a common scheme or plan in which the acts are so similar that proof of one tends to prove the others. Finally, Fox argues that the State waived the right to present argument on whether all six charges were properly joined because the State only presented argument concerning the joinder of Count VI.

The State claims there are three bases for joinder under I.C.R. 8(a), contending that charges may be joined where they (1) are based on the same act...