State v. Fox
| Citation | 941 P.2d 357,130 Idaho 385 |
| Decision Date | 16 June 1997 |
| Docket Number | No. 22837,22837 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Susan F. FOX, Defendant-Appellant. |
| Court | Court of Appeals of Idaho |
David H. Leroy, Boise, argued for appellant.
Hon. Alan G. Lance, Attorney General; L. LaMont Anderson, Deputy Attorney General, Boise, for respondent. L. LaMont Anderson argued.
Susan F. Fox appeals from her judgment of conviction for second degree arson. On appeal, Fox alleges that the arson statute, I.C. § 18-803, is unconstitutionally vague and overbroad, that two of the prosecution witnesses were biased because of financial arrangements with an insurer of the property in question and that the evidence was insufficient to support the guilty verdict. We affirm.
In the early morning hours of August 24, 1994, a fire damaged portions of the building housing a business known as "It's Furniture." After an investigation, Susan F. Fox, the owner of It's Furniture, was charged with second degree arson.
At trial, one of the fire investigators testified that the fire was incendiary in origin, pointing to arson. He testified that there were five separate points of origin of the fire: one on the ceiling caused by a halogen lamp; three in the chases or gaps in the walls; and one on the floor where it appeared that flammable liquid was poured on the carpet toward the wall where the fire began. The investigator also testified that each of the points of origin had been started at a different time, that the five separate fires never "communicated" or met, and that there were holes in the walls through which paper and dried vegetation had fallen or been dropped. On cross-examination, both of the fire investigators admitted that they had a financial relationship with Mutual of Enumclaw, the insurer of It's Furniture, and that they had done private work for the company in the past and continued to work for the company, though not with respect to the fire at It's Furniture. In her defense, Fox testified that she did not intentionally start the fire, but admitted that she had left the halogen lamp At the close of the state's case, Fox moved for a dismissal based on I.C.R. 48, arguing that the ends of justice required dismissal and claiming that Fox's due process rights had been violated because of the conflict of interest of the two fire investigators. This motion was denied. Fox also moved for a judgment of acquittal based on I.C.R. 29 and for an advisory jury instruction to acquit under I.C. § 19-2123. Both of these motions were denied.
on in the building and had placed it near the ceiling.
The jury found Fox guilty of second degree arson. Fox now appeals, alleging that I.C. § 18-803 is constitutionally void for vagueness and overbreadth, that the conflict of interest of the investigators warranted the entry of a dismissal, that the district court erred in failing to grant Fox's motion for judgment of acquittal, and that the district court erred by refusing to give an instruction to the jury requiring an acquittal.
Fox first alleges that I.C. § 18-803 is constitutionally invalid because it is vague and overbroad. Idaho Code Section 18-803 reads:
Arson in the second degree--Burning of a structure--Penalties.--Any person who willfully and unlawfully, by fire or explosion, damages any structure, whether the property of the actor or another, not included or described in the preceding section, is guilty of arson in the second degree, and upon conviction thereof shall be sentenced to the custody of the department of correction for not more than fifteen (15) years or fined not more than seventy-five thousand dollars ($75,000) or both.
Fox claims that the statute is made unconstitutionally vague and overbroad by the 1993 revision to the statute, which replaced the word "maliciously" with "unlawfully." 1993 Idaho Sess. Laws, ch. 107, § 5, p. 275.
Although we acknowledge that several courts in other jurisdictions have held similar statutes unconstitutional, see e.g. People v. Wick, 121 Ill.App.3d 94, 76 Ill.Dec. 587, 458 N.E.2d 1387 (1984); State v. Dennis, 80 N.M. 262, 454 P.2d 276 (App.1969); State v. Spino, 61 Wash.2d 246, 377 P.2d 868 (1963), this issue was not properly raised below. Constitutional issues generally will not be considered by an appellate court if raised for the first time on appeal. State v. McAway, 127 Idaho 54, 60, 896 P.2d 962, 968 (1995). Failure to raise such an issue below is a waiver of the right to raise the issue on appeal. Whitehawk v. State, 119 Idaho 168, 170, 804 P.2d 341, 343 (Ct.App.1991); see also State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992); Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991). Fox failed to raise this matter before the trial court through any motion to dismiss or other pretrial procedure. Because the issue was never before the lower court, we refuse to consider it on appeal.
Fox argues that her other motions, including the motion to dismiss based on the "ends of justice," her motion for judgment of acquittal, her motion for a new trial and her motion for an advisory jury instruction to acquit, all "foreshadowed" her constitutional objections to the statute. We find this argument unpersuasive, as the trial court was never given the opportunity to consider, and rule upon, the constitutionality of I.C. § 18-803.
Fox asserts that her motion to dismiss for violation of her due process rights, which was based in part upon the perceived conflict of interest of the two fire investigators, was erroneously denied. She claims that because the two investigators had private, financial dealings with the insurer of It's Furniture, Mutual of Enumclaw, the case should have been dismissed.
Fox concedes that this issue has never before been addressed by an appellate court in Idaho. The cases that are offered in support of Fox's position from other jurisdictions deal exclusively with the employment While we may agree that such a conflict of interest is a potential cause of bias in witnesses testifying at criminal trials, we do not agree that the appropriate remedy in this case is dismissal of criminal charges. In this instance, the potential bias was adequately addressed through the opportunity to cross-examine the witnesses regarding conflicts of interest and to cast doubt on the credibility of the witnesses through admission of evidence establishing the bias.
relationships between...
To continue reading
Request your trial
-
State of Idaho v. KEY
...an equal protection challenge to a statute where the issue had been raised for the first time on appeal); State v. Fox, 130 Idaho 385, 387, 941 P.2d 357, 359 (Ct.App.1997) (refusing to consider whether an arson statute was unconstitutionally vague or overbroad where the defendant had failed......
-
State v. Key, Docket No. 35955 (Idaho App. 6/10/2010)
...an equal protection challenge to a statute where the issue had been raised for the first time on appeal); State v. Fox, 130 Idaho 385, 387, 941 P.2d 357, 359 (Ct. App. 1997) (refusing to consider whether an arson statute was unconstitutionally vague or overbroad where the defendant had fail......
-
State v. Barr
...if raised for the first time on appeal. Roell v. Boise City , 134 Idaho 214, 216, 999 P.2d 251, 253 (2000) (citing State v. Fox , 130 Idaho 385, 387, 941 P.2d 357, 359 (1997) ). "Failure to properly raise such an issue below is a waiver of the right to raise the issue on appeal." Id. Howeve......
-
State v. Barr
...if raised for the first time on appeal. Roell v. Boise City , 134 Idaho 214, 216, 999 P.2d 251, 253 (2000) (citing State v. Fox , 130 Idaho 385, 387, 941 P.2d 357, 359 (1997) ). "Failure to properly raise such an issue below is a waiver of the right to raise the issue on appeal." Id. Howeve......