State v. Schall

• Decision Date: 05 September 2013
• Docket Number: Docket No. 39891,2013 Opinion No. 47
• Parties: STATE OF IDAHO, Plaintiff-Respondent, v. GARY L. SCHALL, Defendant-Appellant.
• Court: Idaho Court of Appeals

STATE OF IDAHO, Plaintiff-Respondent, v. GARY L. SCHALL, Defendant-Appellant.

Docket No. 39891

2013 Opinion No. 47

COURT OF APPEALS OF THE STATE OF IDAHO

Filed: September 5, 2013

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Stephen S. Dunn, District Judge.

Order denying motion to dismiss, reversed, and case remanded.

Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy Attorney General, Boise, for respondent.

LANSING, Judge

Gary L. Schall challenges the district court's denial of his motion to dismiss a felony charge for driving under the influence on the ground that the evidence at the preliminary hearing did not show probable cause to believe that a felony was committed. We reverse and remand.

I.BACKGROUND

Following an August 9, 2011, traffic stop, Schall was arrested for driving under the influence, Idaho Code § 18-8004(1)(a). The State filed a complaint with a charging enhancement¹ elevating the charge from a misdemeanor to a felony under I.C. § 18-8005(6) onthe ground that Schall had been twice convicted of driving under the influence within the preceding ten years.

At the close of the preliminary hearing, Schall moved to dismiss the charge pursuant to Idaho Criminal Rule 5.1(c), contending that the State had failed to show probable cause for a felony offense. Schall argued that because one of the alleged prior offenses was from Wyoming, the State bore the burden to place into evidence the Wyoming DUI statute under which he was convicted and demonstrate, as a matter of law, that this statute was "substantially conforming" to Idaho's DUI statute, I.C. § 18-8004, as required by I.C. §§ 18-8005(6) and 18-8005(10). The magistrate, however, held that it was Schall's burden to show that the Wyoming statute was noncomplying and that this should be done at the district court level. The magistrate then bound the defendant over to district court.

Schall pursued the issue in the district court through an I.C.R. 12(b)(1) motion to dismiss. He asserted the same alleged deficiency in the preliminary hearing evidence, arguing that the State had not met its burden to show probable cause for a felony. In the alternative, and taking heed of the magistrate court's ruling that Schall bore the burden of proof on the issue, Schall placed the Wyoming DUI statute before the court and argued that it did not substantially conform to I.C. § 18-8004, so the charge against him should be dismissed or reduced to a misdemeanor. As to the nature of the nonconformity, Schall pointed out that the Wyoming DUI law permits a conviction if breath test results show an alcohol concentration of less than .08, whereas Idaho law precludes a DUI charge in that circumstance; and Schall asserted that his Wyoming breath test showed an alcohol concentration of .06, which would not support a DUI conviction in Idaho. See I.C. § 18-8004(2). The district court held that the State did not bear the burden of proving that the Wyoming statute substantially conforms and that the preliminary hearing evidence was therefore adequate. The district court was of the view that once the Statepresented a copy of the Wyoming judgment of conviction as evidence at the preliminary hearing, the burden shifted to Schall to prove that the Wyoming statute was not substantially conforming. The court thus determined that the issue was effectively an affirmative defense. The district court further held that the Wyoming statute substantially conformed to I.C. § 18-8004.

Schall thereafter entered a conditional plea of guilty to felony DUI, reserving the right to appeal the denial of his motion. This appeal follows.

II.ANALYSIS

Schall first asserts that the district court erred in denying his motion to dismiss the charge because the State did not place a copy of the Wyoming statute into evidence at the preliminary hearing and therefore did not meet its burden to present substantial evidence on each element of the charged offense. Under Idaho law, a person charged with a felony has the right to a preliminary hearing at which the magistrate court must determine whether there is probable cause to believe that the charged offense was committed and that the defendant committed it. I.C. § 19-804; I.C.R. 5.1. Depending upon the magistrate court's determination, a defendant will either be bound over to the district court to answer to the charge or the charge will be dismissed. I.C. §§ 19-814, 19-815, 19-815A; I.C.R. 5.1. A defendant may challenge a magistrate court's finding of probable cause at the preliminary hearing by filing a motion in the district court to dismiss the charge. I.C. § 19-815A.

The probable cause standard at a preliminary hearing does not require the State to prove the defendant guilty beyond a reasonable doubt. State v. Phelps, 131 Idaho 249, 251, 953 P.2d 999, 1001 (Ct. App. 1998). Rather, the State need only show that a felony crime was committed and that there is probable cause to believe the accused committed it. Id.; State v. Holcomb, 128 Idaho 296, 299, 912 P.2d 664, 667 (Ct. App. 1995). 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); State v. Porter, 142 Idaho 371, 373, 128 P.3d 908, 910 (2005); State v. McLellan, 154 Idaho 77, 78, 294 P.3d 203, 204 (Ct. App. 2013). 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.

The elements of an offense for which probable cause must be shown at a preliminary hearing are determined by the statute defining the offense. Here, Schall was charged with felony DUI under I.C. § 18-8004(1)(a) and § 18-8005(6). It is the second of these statutes that is in question here. It states:

Except as provided in section 18-8004C, Idaho Code, any person who pleads guilty to or is found guilty of a violation of the provisions of section 18-8004(1)(a), (b) or (c), Idaho Code, who previously has been found guilty of or has pled guilty to two (2) or more violations of the provisions of section 18-8004(1)(a), (b) or (c), Idaho Code, or any substantially conforming foreign criminal violation, or any combination thereof, within ten (10) years, notwithstanding the form of the judgment(s) or withheld judgment(s), shall be guilty of a felony.

(emphasis added). Subsection 10 of the same statute provides that a "substantially conforming foreign criminal violation" includes a violation of the law of another state "conforming to the provisions of section 18-8004, Idaho Code." Subsection 10 further specifies that "[t]he determination of whether a foreign criminal violation is substantially conforming is a question of law to be determined by the court."

Nothing in the statutes specifies whether the State or the accused bears the burden of proof on the question of whether the foreign statute substantially conforms to I.C. § 18-8004. That determination is a question of statutory construction and application, which is an issue of law over which we exercise free review. State v. O'Neill, 118 Idaho 244, 245, 796 P.2d 121, 122 (1990); State v. Shock, 133 Idaho 753, 755, 992 P.2d 202, 204 (Ct. App. 1999).

Preliminarily, we must address the State's argument that it does not matter whether the State or Schall bore the burden of production of evidence on the issue, or whether the issue of the Wyoming statute's conformity must be decided by the magistrate court at a preliminary hearing, because the issue is a matter of law that this Court can determine in this appeal. The State's argument is without merit because the remedy for insufficiency of evidence, or failure to demonstrate probable cause, at a preliminary hearing is dismissal of the complaint or information. I.C. § 19-815A; State v. Stewart, 149 Idaho 383, 388, 234 P.3d 707, 712 (2010); McLellan, 154 Idaho at 78, 294 P.3d at 204. Such an evidentiary deficiency could not be cured post hoc by a determination of this Court that the Wyoming statute substantially conformed to I.C. § 18-8004.

It is not always easy to determine whether a statutory term that conditions or limits criminal liability constitutes an element of the offense to be proven by the State or an affirmative defense for which the defendant bears the burden to go forward with evidence. An analogous question was presented to the Idaho Supreme Court in Cope v. State, 89 Idaho 64, 69, 402 P.2d 970, 973 (1965), a habeas corpus action where the petitioner challenged the validity of a Washington warrant upon which the state of Washington sought the petitioner's extradition from Idaho. The petitioner contended that the affidavit for the warrant failed to set forth sufficient facts to constitute an offense under Washington law because it did not state facts showing that a particular exemption to liability under the Washington law was inapplicable to the petitioner. In addressing this issue, the Idaho Supreme Court quoted with approval from the United States Supreme Court's decision in United States v. Cook, 84 U.S. 168 (1872), which said that the proper inquiry is

. . . whether the exception is so incorporated with the substance of the clause defining the offense as to constitute a material part of the description of the acts, omission, or other ingredients which constitute the offense. Such an offense must be accurately and clearly described, and if the exception is so incorporated with the clause describing the offense that it becomes in fact a part of the description, then it cannot be omitted in the pleading; but if it is not so incorporated with the clause defining the

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