State v. Horejs

• Decision Date: 01 February 2006
• Docket Number: No. 30490.,30490.
• Citation: 141 P.3d 1129,143 Idaho 260
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Andrew Michael HOREJS, Defendant-Appellant.
• Court: Idaho Court of Appeals

141 P.3d 1129

143 Idaho 260

STATE of Idaho, Plaintiff-Respondent, v. Andrew Michael HOREJS, Defendant-Appellant.

No. 30490.

Court of Appeals of Idaho.

February 1, 2006.

Review Denied August 9, 2006.

Molly J. Huskey, State Appellate Public Defender; Erik R. Lehtinen, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kristina M. Schindele, Deputy Attorney General, Boise, for respondent.

LANSING, Judge.

Defendant-Appellant Andrew Horejs challenges his judgment of conviction for aggravated assault, arguing that there was insufficient evidence to support the jury's verdict. He also appeals his consecutive sentences for the aggravated assault and related misdemeanor counts on the ground that the district court lacked authority to direct that misdemeanor sentences be served after the felony sentence. We affirm.

I. FACTUAL & PROCEDURAL BACKGROUND

One summer night, Horejs and four of his friends launched a scheme to accost random strangers and bind them with duct tape. The same group had engaged in this prank within their circle for some time and believed that extending it to strangers would be funny. Sometime around 2 a.m., the group purchased duct tape and then began driving around Boise seeking their prey. They found two victims: the first was a young man riding inline skates to work. Minutes after that attack, they found a second victim, a young man returning home on his bicycle after working a late shift at a restaurant. Horejs and his friends ambushed both victims, knocking them to the ground and holding them down while attempting to bind parts of their bodies with duct tape. The second victim also received several punches and at least one kick to his body. Each attack lasted no more than a couple of minutes and neither victim was seriously injured. Still, both victims suffered minor scrapes and bumps to various parts of their bodies, including their heads.

The police apprehended Horejs and his friends shortly after the second attack. All members of the group were charged with four felonies: two counts of kidnapping, Idaho Code § 18-4501, and two counts of aggravated assault, I.C. §§ 18-901(b), 18-905(b). Horejs' friends pleaded guilty to kidnapping in exchange for the State dropping the aggravated assault charges. Horejs, on the other hand, exercised his right to a jury trial.

At trial, Horejs moved for a judgment of acquittal on the charge of aggravated assault, asserting the State had not provided sufficient evidence that his acts were likely to produce great bodily harm to the victims. That motion was denied. The jury acquitted Horejs of kidnapping but found him guilty of two counts of a lesser included misdemeanor, false imprisonment, I.C. § 18-2901. They also found him guilty of aggravated assault on the second victim and of the lesser included offense of simple assault, a misdemeanor, I.C. § 18-901, for the attack on the first victim. For the aggravated assault, the district court imposed a unified five-year sentence with a two-year determinate term. For the misdemeanors, the court sentenced Horejs to one year in the county jail for each count of false imprisonment and three months in jail for simple assault.¹ The court ordered that the sentences would be served consecutively, with the felony sentence to be served first. The district court suspended the sentences, however, and placed Horejs on four consecutive terms of probation totaling eleven years (five years for aggravated assault, and two years for each misdemeanor count).

Horejs now appeals. He argues that there was insufficient evidence to sustain his aggravated assault conviction. Specifically, Horejs contends his actions could not be considered "likely to produce great bodily harm," an element of aggravated assault. I.C. § 18-905(b). In addition, Horejs argues that his sentences are illegal because misdemeanor jail sentences may not be made to run consecutive to a felony prison sentence and because the consecutive probationary periods exceed the maximum aggregate period for which he could be incarcerated for these offenses.

II. ANALYSIS

A. Sufficiency of Evidence Supporting Horejs' Conviction for Aggravated Assault

Horejs first argues that his felony conviction for aggravated assault on the second victim cannot stand because there was insufficient evidence to prove he used means or force that was likely to produce great bodily harm. This Court will not set aside a jury's judgment of conviction if there is "substantial evidence upon which a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Medina, 128 Idaho 19, 27, 909 P.2d 637, 645 (Ct.App.1996); State v. Reyes, 121 Idaho 570, 572, 826 P.2d 919, 921 (Ct.App.1992). It is the province of the jury to determine the credibility of the witnesses, to weigh the evidence, and to draw reasonable and justifiable inferences. Therefore, where a defendant stands convicted, we must view the evidence in the light most favorable to the prosecution. Medina, 128 Idaho at 27, 909 P.2d at 645; Reyes, 121 Idaho at 572, 826 P.2d at 921.

The elements of aggravated assault, as charged in this case, are set forth in I.C. § 18-901(b) and § 18-905(b). The former section defines misdemeanor assault as an "intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent." Section 18-905(b) specifies that an assault is "aggravated," and thus a felony, if it is accomplished "[b]y any means or force likely to produce great bodily harm." Horejs argues the evidence presented to the jury showed no more than a misdemeanor assault because the only force he used against the second victim was a kick to the victim's backside—a kick that resulted in no visible mark or injury and was unlikely to produce great bodily harm.

In addressing Horejs' argument, it must be borne in mind that even though the charged and admitted acts of Horejs and his group included actual violent physical contact with the victim, the offense charged was aggravated assault, not aggravated battery. As noted above, an assault is aggravated pursuant to I.C. § 18-905(b) if it is accomplished by means or force "likely" to produce great bodily harm. Therefore, in discerning whether the evidence is sufficient on this element, we do not look to the injuries or harm actually inflicted, but to whether the jury could reasonably find that the means or force used by the group was likely to cause great bodily harm.

With this in mind, even if we assume, arguendo, that Horejs' lone kick was not "likely to produce great bodily harm," we nevertheless must affirm his conviction because the actions of his group as a whole were sufficient for a reasonable jury to find a likelihood of great bodily harm. Idaho law concerning criminal culpability makes no distinction between the person who directly commits a criminal act and a person who aids and abets in its commission. Rather, those who aid and abet a crime are culpable as "principals." I.C. §§ 18-204, 19-1430;² State v. Butcher, 137 Idaho 125, 134, 44 P.3d 1180, 1189 (Ct.App.2002). Aiding and abetting includes such acts as facilitating, promoting, encouraging, soliciting, and inciting the actions. State v. Holder, 100 Idaho 129, 132, 594 P.2d 639, 642 (1979), overruled on other grounds by State v. Humpherys, 134 Idaho 657, 8 P.3d 652 (2000); Howard v. Felton, 85 Idaho 286, 297, 379 P.2d 414, 421 (1963). The district court instructed the jury on this point of law, and the record contains sufficient evidence by which a jury could find that Horejs aided and abetted the acts of the other members of his group who participated in the assault on the victim. Indeed, Horejs admitted his involvement at trial, thus providing sufficient evidence that he aided and abetted the acts of his friends and could be charged as a principal for those acts.

Horejs points out that he was never expressly charged with aiding and abetting, and relies on State v. Chapa, 127 Idaho 786, 906 P.2d 636 (Ct.App.1995), to support his assertion that a defendant not charged with aiding and abetting cannot be convicted on that basis. His reliance on Chapa is misplaced, however, for in Chapa we held a conviction for aiding and abetting improper where the charging instrument did not alert the defendant that he was being prosecuted for two separate acts—the rape committed by an accomplice in addition to his own separate act of raping the victim. Id. at 789-90, 906 P.2d at 639-40. This violated the defendant's due process rights because it resulted in his prosecution for a crime not charged against him. Id. In this case, by contrast, the indictment put Horejs on notice that he was being prosecuted for aiding and abetting because it alleged that Horejs and his cohorts collectively kidnapped and assaulted the two victims. Thus, Horejs was made fully aware of the acts he was charged with committing — his own acts as well as his confederates' acts — and he was "presumed to know that he would be a principal and guilty as such whether he directly committed the acts charged or aided and abetted in their commission by another." State v. Wheeler, 109 Idaho 795, 796, 711 P.2d 741, 742 (Ct. App.1985). See also State v. Ayres, 70 Idaho 18, 27-28, 211 P.2d 142, 147 (1949).

We conclude that the record provides sufficient evidence to support the jury's verdict that the group's acts as a whole amounted to aggravated assault. The evidence shows, and Horejs admits, that his friends ambushed the second victim, knocked him off of his bicycle and to the ground, held him down, and attempted to duct tape him; during this episode one of Horejs' cohorts punched the victim one or more times, and Horejs kicked the victim. Even if neither the kick nor the punches were of sufficient force to be likely to...