State v. Pole

• Citation: 139 Idaho 370,79 P.3d 729
• Decision Date: 25 April 2003
• Docket Number: No. 27586.,27586.
• Parties: STATE of Idaho, Plaintiff-Appellant, v. Shatana S. POLE, Defendant-Respondent.
• Court: Idaho Court of Appeals

79 P.3d 729

139 Idaho 370

STATE of Idaho, Plaintiff-Appellant, v. Shatana S. POLE, Defendant-Respondent.

No. 27586.

Court of Appeals of Idaho.

April 25, 2003.

Rehearing Denied July 3, 2003.

Review Denied November 20, 2003.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for appellant. Kenneth K. Jorgensen argued.

James E. Siebe, Moscow, for respondent.

PERRY, Judge.

The State of Idaho appeals from the district court's order granting Shatana S. Pole's motion to dismiss criminal charges of aggravated assault and aggravated battery. We affirm in part and reverse in part.

I. FACTS AND PROCEDURE

During the early morning hours of July 8, 2000, police in Post Falls received a report of a possible shooting. Officers were dispatched to an apartment where they were led to a woman lying in bed bleeding from a gunshot wound. The victim indicated that she could not feel her legs and was transported to the hospital for emergency surgery.

Upon investigation, officers discovered a bullet hole in the bedroom wall. The bullet had been fired from an adjoining apartment and struck the victim as she lay in bed. Without success, officers attempted to contact the residents of the adjoining apartment. A search warrant was issued. Eventually, three male individuals living at the apartment were detained for questioning. Pole, one of the individuals detained, confessed to the shooting. Further investigation revealed that, prior to the shooting, Pole and his roommates had been drinking alcoholic beverages late into the evening and into the early morning hours. According to evidence introduced by the state at Pole's preliminary hearing, after returning home, Pole displayed his .357 caliber handgun, pointed it at his two roommates, and suggested that they play Russian roulette. After his invitation was rejected, Pole turned away from his roommates and fired a round through the apartment wall. The bullet passed into the adjoining apartment bedroom and paralyzed the victim from the waist down. Pole was subsequently charged with aggravated assault, I.C. §§ 18-901(b), 18-905; unlawful discharge of a firearm at a dwelling house, I.C. §§ 18-3317; and aggravated battery, I.C. §§ 18-903(a)-(c), 18-907.

A preliminary hearing was conducted in which Pole's two roommates, police investigators, and the victim's fiance testified as to the events leading to the shooting. During questioning by the state, the roommates testified to a lack of memory regarding certain details of the shooting. Their testimony contradicted prior written statements given to the police within a few days after the shooting. The magistrate noted the obvious bias, finding that the roommates remembered details when it was beneficial to the defense, but had a lack of memory when asked questions for which the answers would benefit the state. The magistrate ultimately found probable cause to believe that the crimes charged were committed.

Upon the magistrate's finding of probable cause, Pole was held to answer the charges before the district court. Thereafter, Pole filed a motion to dismiss, arguing that the evidence presented at the preliminary hearing was insufficient to support a finding of probable cause to believe that the charged offenses had been committed. The district court granted Pole's motion to dismiss with respect to the charges for aggravated assault and aggravated battery. The state subsequently dismissed the charge for unlawful discharge of a firearm at a dwelling house. The state appealed the district court's dismissal order, arguing that the evidence produced at the preliminary hearing was sufficient to support the magistrate's finding of probable cause.

II. ANALYSIS

Idaho law provides that a criminal defendant, charged by complaint with a felony, shall be entitled to a preliminary hearing in which the magistrate shall determine whether a public offense has been committed and, if so, whether probable cause exists to believe that the defendant committed it. See I.C. § 19-804; I.C.R. 5.1; State v. Holcomb, 128 Idaho 296, 299, 912 P.2d 664, 667 (Ct. App.1995). Based on the magistrate's determination, the defendant will either be held to answer to the public offense in the district court or will be discharged and the complaint dismissed. See I.C. §§ 19-814, 19-815; I.C.R. 5.1. Idaho Code Section 19-815A provides that once a defendant has been held to answer to a criminal charge, the defendant may challenge the sufficiency of the evidence presented at the preliminary hearing by filing with the district court a motion to dismiss. If the district court finds that no public offense was committed or that the defendant was held to answer without probable cause, it must dismiss the complaint and order the defendant discharged. I.C. § 19-815A.

A magistrate's finding of probable cause that a defendant has committed a public offense should be overturned only upon a showing that the magistrate abused its discretion. State v. Gibson, 106 Idaho 54, 57, 675 P.2d 33, 36 (1983); State v. Phelps, 131 Idaho 249, 251, 953 P.2d 999, 1001 (Ct.App. 1998). When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

The legal standard applicable to a finding of probable cause at a preliminary hearing does not require the state to prove the defendant guilty beyond a reasonable doubt. Phelps, 131 Idaho at 251, 953 P.2d at 1001. Rather, the state need only show that a crime was committed and that there is probable cause to believe the accused committed it. Id. A finding of probable cause must be based upon substantial evidence as to every material element of the offense charged. I.C.R. 5.1(b). This requirement may be satisfied through circumstantial evidence and reasonable inferences to be drawn from that evidence by the committing magistrate. State v. Munhall, 118 Idaho 602, 606, 798 P.2d 61, 65 (Ct.App.1990). A reviewing court will not substitute its judgment for that of the magistrate as to the weight of the evidence. Id. Stated another way, a magistrate's finding of probable cause at a preliminary hearing will not be disturbed if, under any reasonable view of the evidence including permissible inferences, it appears likely that an offense occurred and that the accused committed it. Holcomb, 128 Idaho at 299, 912 P.2d at 667.

A. Aggravated Assault

Pole was charged with aggravated assault based upon his actions of pointing his handgun at one of his two roommates. At the preliminary hearing, the state was required to provide sufficient evidence to establish the following elements of aggravated assault: (1) an intentional, unlawful threat by word or act to do violence to the person of another; (2) with a deadly weapon or instrument; (3) coupled with an apparent ability to do so; and (4) doing some act which creates a well-founded fear in such other person that such violence is imminent. See I.C. §§ 18-901(b), 18-905(a).

Neither party disputes that the gun Pole was handling at the time of the shooting was a deadly weapon and that Pole had the apparent ability to do violence to his roommate. The main disputes at the preliminary hearing, and now on appeal, were whether Pole intentionally and unlawfully threatened to do violence to his roommate and whether his roommate actually possessed a well-founded fear that violence was imminent. From the evidence presented at the preliminary hearing, the state showed that Pole was intoxicated, that Pole handled the gun for several minutes, that the gun was pointed at the roommate, and that Pole's roommate was afraid, particularly that the gun might accidentally discharge. The magistrate therefore found probable cause to believe that Pole committed aggravated assault.

After reviewing the transcript of the preliminary hearing, this Court concludes that the magistrate's finding of probable cause was sufficiently supported by the evidence presented. As to the element of well-founded fear, Pole's roommate testified that he was not scared, but that he was concerned for his safety. When asked to distinguish between his use of the word "scared" versus the word "concerned," Pole's roommate testified that he used the two words interchangeably. Additionally, although not used as the basis of the magistrate's finding, the roommate's previous written statement was admitted and read into evidence, under the past recollection recorded hearsay exception, after the roommate professed no memory of the events surrounding the shooting.¹ In that statement, the roommate declared that he was scared he might get shot. A police officer testified that when he took the roommate's statement, the roommate became so emotional when describing his fear that tears welled up in his eyes.

The record also contains evidence to support the element that the roommate's fear was well founded. Based on testimony given at the preliminary hearing, including the roommate's prior written statement, Pole had been drinking alcohol during the evening and early morning hours and was intoxicated. Pole had been handling the gun while speaking with his two roommates. At some point, the roommate heard Pole talk about playing Russian roulette. He observed that Pole loaded the handgun, pulled back the hammer, removed all but one bullet, spun the cylinder, and pointed it at each of the roommates. The roommate stated that during the display of the handgun and talk of Russian roulette, he tried to calm Pole down. This evidence supports a finding of probable cause to believe that the roommate's...