State v. Missamore

Decision Date21 December 1990
Docket NumberNo. 18179,18179
PartiesThe STATE of Idaho, Plaintiff-Respondent, v. Linda MISSAMORE, Defendant-Appellant. Boise, October 1989 Term
CourtIdaho Supreme Court

Jim Jones, Atty. Gen. and John J. McMahon, Chief Deputy Atty. Gen., Boise, argued, for plaintiff-respondent.

McDEVITT, Justice.

This is an appeal from a trespassing conviction and sentence that has been affirmed by the district court and the Court of Appeals on the grounds that disputed testimony was properly admitted and that the sentence was proper and constitutionally valid.


This is a case of a legal loose thread that when pulled never seemed to stop unraveling. On the evening of May 31, 1986, Linda Missamore took her dog for a walk along Hauser Lake Road. As they headed into what had to be a typically beautiful Idaho sunset, they came upon the home of Mr. and Mrs. Schmidt. The Schmidts' front lawn is contiguous with Hauser Lake Road. There is a strip of lawn approximately ten feet wide that lies between the gravel shoulder of Hauser Lake Road and the Schmidts' property line. There is no fence or line of demarkation between this strip of lawn and the Schmidts' front lawn.

When Missamore and her companion reached the Schmidts' home they apparently stopped; the reason is undisclosed. The Schmidts could see Missamore and her dog through their front window. Mrs. Schmidt believed Missamore was on their property so she walked out and asked Missamore to leave. Missamore said that she was on county property and therefore did not have to leave. The Schmidts asked Missamore to leave a number of times; each time Missamore refused. After the last refusal, Mrs. Schmidt walked back into the house and called the sheriff. At this point, Missamore left the area.

On June 4, 1986, Missamore was charged in a SWORN COMPLAINT FOR TRESPASSING in violation of I.C. § 18-7011. Missamore elected to assert her right to a jury trial. At the beginning of the trial, the State amended the complaint and went forward under I.C. § 18-7008(8). 1

At trial, the prosecutor asked Mr. Schmidt why he had asked Missamore to leave the property. Schmidt responded over defense counsel's objection that, "She had no reason to come up there with her dog that I could see. She was just harassing." Brian Sprague, a neighbor of the Schmidts', testified over defense counsel's objection that problems existed between the Schmidts and Missamore. In addition to these colloquies, defense counsel objected to numerous other questions and answers during the State's case in chief.

At the conclusion of the trial the trial judge instructed the jury on trespassing as per I.C. § 18-7008(8). The jury found Missamore guilty.

On January 28, 1987, the trial judge sentenced Missamore for an I.C. § 18-7011 violation, the misdemeanor that Missamore was initially charged with but not the one upon which the jury was instructed and she was convicted. 2 Missamore received thirty days in jail, with all but five suspended, unsupervised probation for two years and a $100 fine. Prior to imposing the sentence, the court received testimony from Mrs. Schmidt who alleged that Missamore had attempted to harass her following the trial. Missamore takes exception to the admittance of this testimony as well as testimony After being sentenced, Missamore appealed to the district court claiming that the trial court admitted improper testimony, imposed too severe a sentence and erred in not instructing the jury on mistake of fact as a possible defense. The district court affirmed the magistrate. Missamore then appealed to the Idaho Court of Appeals which affirmed the sentence and conviction. Missamore now appeals to this Court and asks us to rule that:

[119 Idaho 31] elicited during the presentation of the State's case.

1. The trial court committed reversible error in allowing improper evidence into the record, thereby justifying reversal of the conviction and a new trial;

2. The trial court erred in refusing to instruct the jury on mistake of fact as a defense; and

3. The Misdemeanor Criminal Rules sentencing guidelines deprived Missamore of her right to equal protection and the severity of Missamore's sentence was the result of her exercising her constitutional right to a jury trial.


Missamore argues that the trial court committed three specific evidentiary errors that provide grounds for reversal. Each assignment has been properly preserved for appeal.

Missamore first argues that Mr. Schmidt's testimony that he asked Missamore to leave the Schmidts' property at the time of the incident in question constitutes evidence of another crime not charged. We disagree. Mr. Schmidt's testimony went to the incident in question and was therefore relevant. An additional crime does not arise out of a single transaction with each additional eyewitness to that transaction.

Missamore next argues that the trial court erred in allowing into evidence a series of questions and answers between the prosecutor and Mr. Schmidt regarding why Mr. Schmidt asked Missamore to leave his property. Missamore claims that this dialogue was not relevant, and that Schmidt's responses were conclusory and based on an impermissible opinion concerning Missamore's state of mind.

Idaho Code § 18-7008(8) does not require that the owner of private property have any reason for asking trespassers to get off their land. It merely requires that the owner or authorized agent notify the transgressors that they are on private land and must leave. Persons so notified and capable of leaving must then leave. Because the owner is not required to have any reason for asking the trespasser to depart the owner's land, the prosecutor's question of why Mr. Schmidt asked Missamore to get off his land was irrelevant.

However, the question did open the door for Mr. Schmidt to answer that "she was just harassing." This answer was prejudicial to Missamore. The question is whether it was sufficiently prejudicial to warrant reversal.

Whether Mr. Schmidt's response was relevant depends upon whether or not intent is an element of an I.C. § 18-7008(8) violation. Idaho Code § 18-7008(8) requires that, "[e]very person who willfully commits any trespass, by ... (8) ... being first notified in writing, or verbally by the owner or authorized agent of the owner of real property, to immediately depart from the same and who refuses...." Idaho Code § 18-101(1), states "[t]he word 'willfully,' when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage."

For any act to constitute a trespass under I.C. § 18-7008(8), it must be done willfully. This means that the defendant's "intent to violate law, or to injure another, or to acquire any advantage ..." is irrelevant. Thus, Mr. Schmidt's response that Missamore was on the Schmidt property to harass the Schmidts was irrelevant and should have been stricken from the record.

While Mr. Schmidt's statement was irrelevant, it was also an improper statement of a lay witness's opinion under Idaho Rule of Evidence 701 and therefore, the trial court abused its discretion in admitting it. Generally, a trial court may allow a lay witness to state an opinion about a matter of fact within his or her knowledge, as long as two conditions are met. First, the witness's opinion must be based on his or her perception; and second, the opinion must be helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. I.R.E. 701; accord State v. Rosencrantz, 110 Idaho 124, 714 P.2d 93 (Ct.App.1986). The admissibility of such testimony turns upon its underlying factual basis, not the fact that it is in the format of an opinion. See Report of the Idaho State Bar Evidence Committee, comments to I.R.E. 701 at 4 (1983 and 1985 Supp.).

In this case, the admission of Schmidt's statement did not fulfill the I.R.E. 701 requirements. There is no basis for an opinion as to the motives of Missamore by Schmidt based on his observation. In addition to being irrelevant and improper, Schmidt's statement that Missamore was there just to harass the Schmidts was clearly prejudicial.

Subsequent exchanges between the prosecutor and Mr. Schmidt, as well as another witness for the prosecution, Brian Sprague, compounded the existing fracture between relevant evidence and irrelevant prejudicial evidence. Immediately after the exchange discussed above, the prosecutor asked Mr. Schmidt, "All right, would you ... say she came on just to harass you?" Mr. Schmidt stated, "In the past, she's drove in our driveway with her truck." Moments later Mr. Schmidt testified that in the past, "[w]ell, she's ... driven across the lawn...." Later, the prosecutor asked Brian Sprague, "[l]et me see, Brian, from what you know ... do you know why the defendant walked onto the Schmidts' property?" To which Sprague replied, "Harassment. It's been going on for a long time...."

"[T]o hold an error as harmless, an appellate court must declare a belief, beyond a reasonable doubt, that there was no reasonable possibility that such evidence complained of contributed to the conviction." State v. Sharp, 101 Idaho 498, 507, 616 P.2d 1034, 1043 (1980). Where the admissible evidence provides, beyond a reasonable doubt, "overwhelming and conclusive" proof of a defendant's guilt, the admission of tainted evidence will be held to be harmless error." State v. LePage, 102 Idaho 387, 395, 630 P.2d 674, 682 (1981). "Harmless error" refers to technical errors, which do not require reversal.... "Cumulative error" refers to a number of errors which prejudice defendant's right to a fair trial. State v. McKenzie, 186 Mont. 481, 514, 608 P.2d 428, 448, cert. denied, 449 U.S. 1050, 101 S.Ct. 626, 66...

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  • State v. Korsen, 28276.
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    ...523 (1974). Clearly, Idaho's trespass statute can be constitutionally applied. As succinctly stated by this Court in State v. Missamore, 119 Idaho 27, 803 P.2d 528 (1990): "All that is required for an I.C. § 18-7008(8) violation is that the defendant refuse to leave property that belongs to......
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