State v. Wilkerson, 16569

CourtCourt of Appeals of Idaho
Citation114 Idaho 174,755 P.2d 471
Docket NumberNo. 16569,16569
PartiesSTATE of Idaho, Plaintiff-Respondent-Appellant on Appeal, v. Jeannie A. WILKERSON, Defendant-Appellant-Respondent on Appeal.
Decision Date03 May 1988

Jim Jones, Atty. Gen., Lynn Thomas, Sol. Gen., Boise, for the state.

Jonne E. Kohler, Nampa, for Wilkerson.

WALTERS, Chief Judge.

Jeannie Wilkerson attempted to prevent a tow truck from removing a damaged vehicle from the scene of an accident involving her son. A police officer intervened on behalf of the tow truck operator and arrested Wilkerson. She was charged with and convicted by a jury of violating I.C. § 18-705, which provides:

Resisting and obstructing officers.--Every person who wilfully resists, delays or obstructs any public officer, in the discharge, or attempt to discharge, of any duty of his office or who knowingly gives a false report to any peace officer, when no other punishment is prescribed, is punishable by a fine not exceeding one thousand dollars ($1,000), and imprisonment in the county jail not exceeding one (1) year.

The magistrate fined Wilkerson $300 plus court costs and sentenced her to fifteen days in the county jail. On appeal, the district court concluded that the officer may not have been discharging a "duty of his office." The court set aside the conviction and remanded the case for a new trial. The state's appeal from the district court's decision requires us to examine the scope of I.C. § 18-705. We affirm the district court's decision.

There is little dispute regarding the acts of the parties involved in this case. Late one fall evening, Wilkerson's adult son and two of his friends were in a pickup truck which left the road and overturned in an onion field beside the roadway. He obtained aid at a nearby residence. Wilkerson was summoned. When she arrived at the accident scene, she found the investigating officer, John Taylor, already present. She indicated to Taylor that it was her son's pickup and her son was involved "some way." She immediately left and proceeded to the nearby residence to aid her son.

Taylor followed Wilkerson to the residence. There he attempted to question her son regarding the accident. The son, who was twenty-two years old, said he had been drinking beer; that he had been riding in the pickup with two juveniles; that he was not the driver; and that he did not know what happened to the other two occupants of the vehicle. However, Wilkerson, who apparently had been in contact with an attorney, advised her son not to answer further. Wilkerson indicated she was going to transport her son to the hospital. Taylor asked that the son remain at the hospital until he arrived.

Apparently Taylor had called for a tow truck when he first arrived at the accident scene. He informed Wilkerson, "[W]hen you folks get done, you can come down to the County Sheriff's Office and get your truck, it's been impounded, okay?" During the ensuing conversation, Wilkerson explained that she had independently called another towing company to tow the pickup "home." Taylor responded that the vehicle would be impounded at the sheriff's office until the investigation was completed. He informed Wilkerson that a failure to cooperate would result in a citation for obstructing an officer in the performance of his duties. Taylor then returned to the scene of the accident.

The tow truck requested by Taylor soon arrived. The operator righted the pickup and began to attach it to his tow truck. At that point, Wilkerson arrived, stood in front of the pickup within the tow truck rigging, and demanded that the tow truck operator release the vehicle. She explained that she wanted another towing firm to remove the vehicle. The operator summoned Taylor, who was up on the roadway.

Taylor asked Wilkerson to remove herself from the rigging and to permit removal of the pickup. When she refused, Taylor radioed his supervisor. The supervisor instructed Taylor to arrest Wilkerson for obstructing an officer in the performance of a duty. According to the tow truck operator, Taylor then warned Wilkerson that continuing to block removal of the pickup would result in her arrest. Her response was: "Arrest me. I won't move. This is my rig." When she refused to move, Taylor forcibly removed her from the rigging, handcuffed her, and placed her in his patrol car. After Taylor returned to the pickup, Wilkerson began to kick a window of the officer's vehicle. Taylor returned to his patrol car, hobbled Wilkerson, and with the assistance of paramedics treated her for hyperventilation. As indicated above, Wilkerson subsequently was cited for violating I.C. § 18-705.

At trial, Wilkerson attempted to prove that Taylor was not performing a lawful duty when he intervened in her dispute with the tow truck operator. Conflicting evidence was presented regarding Taylor's purpose in having the vehicle towed. Taylor testified that he was doing so to continue the investigation and to clean up the accident scene. He explained that leaving a damaged vehicle at the scene leads to repeated inquiries from the public and, therefore, removal of all vehicles is standard procedure. However, he also described his purpose as removing the vehicle from private property. He admitted that it was not being impounded as evidence, or as a stolen vehicle, nor did it block or impede traffic or present any other hazard since it rested off the right-of-way in the onion field. After Wilkerson's arrest, the pickup was towed to the towing company's impound lot, not to the sheriff's lot.

At trial, Wilkerson contended that when Taylor instructed the tow truck driver not to honor her request to release the pickup Taylor was acting contrary to state law and therefore was without authority. She relied upon I.C. § 49-3611, which reads:

Charges not otherwise provided for.--Every towing firm, employee or agent in the process of towing, removing or impounding a vehicle as directed by an authorized officer, except vehicles found under extraordinary circumstances [not applicable here] ... shall upon request of the owner or his authorized agent, release the vehicle at the scene. If the vehicle is attached to the tow truck, or otherwise "in tow," the regular, scheduled tow fee may be charged. When the vehicle is not yet "in tow" at the time of request, the release must be made, and no charge may be assessed except a customary and reasonable charge for mileage one way from the towing firm's place of storage to the scene plus the usual fee for the tow truck operator. If the authorized fee is not tendered by the owner or his agent, the towing operator may complete the impoundment, towing or removal, as authorized.

At trial, Wilkerson requested the following jury instructions.

[E]xtraordinary circumstances means any situation where an emergency exists or public safety is endangered or any situation in which a motor vehicle is blocking or impeding traffic or is causing a hazard or has the potential of impeding any emergency vehicle or is impeding any snow removal or other road maintenance operation. [See I.C. § 49-3601(7).]

[Abandoned motor vehicle means] any motor vehicle observed by an authorized officer or reported by a member of the public to have been left within the limits of any highway or upon the property of another without the consent of such property owner for a period of twenty-four (24) hours or longer, except that a vehicle shall not be considered abandoned if its owner-operator is unable to remove it from the place where it is located and has notified a law enforcement agency and requested assistance. [See I.C. § 49-3601(2).]

If you find that the Wilkerson pickup was not an abandoned motor vehicle and if you find that the Wilkerson pickup was not a stolen vehicle and if you find that the Wilkerson pickup was not involved in any extraordinary circumstances as defined, then you must find that Officer Taylor was acting outside the scope of his duty.

If you find that the Wilkerson pickup was not an abandoned motor vehicle and if you find that the Wilkerson pickup was not a stolen vehicle and if you find that the Wilkerson pickup was not involved in any extraordinary circumstances as defined, then you must find the Defendant, Jeannie Wilkerson, not guilty.

Relying upon State v. Richardson, 95 Idaho 446, 511 P.2d 263 (1973), cert. denied, 414 U.S. 1163, 94 S.Ct. 928, 39 L.Ed.2d 117 (1974), where our Supreme Court held that an individual may not forcefully resist an arrest, the magistrate concluded that the lawfulness of the officer's act was immaterial and refused to give Wilkerson's requested instructions. Wilkerson appealed to the district court. The district court reversed. The district court concluded that, because "Wilkerson was not charged with resisting arrest but rather with obstructing an officer in performing his duty," Richardson was not applicable to this case and the questions of fact framed by Wilkerson's rejected jury instructions should have been presented to the jury. The court recommended modifications of these instructions to address Taylor's role as a crime investigator, and remanded the case for a new trial.

On appeal from the district court order, the state contends that the Richardson rule should apply to any obstruction of an officer's will. Alternatively, the state contends that Taylor was acting in his role as an investigator when he sought to impound the pickup. The state asserts that the officer's actions were authorized by law, and by I.C. § 31-2202 in particular (defining the duties of a sheriff), and were not contrary to section 49-3611. Wilkerson, in turn, supports the district court's decision not to apply the Richardson rule. She further argues that a remand to the magistrate's division is unnecessary because, as a matter of law, Taylor was not performing a duty of his office when he countermanded her request to release the pickup.

We begin our analysis...

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23 cases
  • State v. Bishop
    • United States
    • United States State Supreme Court of Idaho
    • 30 d5 Janeiro d5 2009
    ...The term "duty" in section 18-705 includes only "those lawful and authorized acts of a public officer."8 State v. Wilkerson, 114 Idaho 174, 180, 755 P.2d 471, 477 (Ct.App.1988), aff'd, 115 Idaho 357, 358, 766 P.2d 1238, 1239 (1988). Because an unlawful act is not considered a "duty" under t......
  • Hallstrom v. CITY OF GARDEN CITY, ID.
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • 3 d5 Maio d5 1991
    ...Idaho Code § 18-705, and such review has taken place since the decision handed down in Houston v. Hill. See, e.g., State v. Wilkerson, 114 Idaho 174, 755 P.2d 471 (Ct.App.), aff'd 115 Idaho 357, 766 P.2d 1238 (1988). Although the circumstances presented in the Wilkerson case differ markedly......
  • State v. Gardiner, 890231
    • United States
    • Supreme Court of Utah
    • 18 d2 Junho d2 1991
    ...is within his authority. The better-reasoned cases reject that approach. The Idaho Court of Appeals, in State v. Wilkerson, 114 Idaho 174, 180, 755 P.2d 471, 477 (Idaho Ct.App.), aff'd, 115 Idaho 357, 766 P.2d 1238 (1988), construed a statute which used the phrase "duty of his office" and s......
  • State v. Bowman
    • United States
    • Court of Appeals of Idaho
    • 17 d5 Dezembro d5 1993
    ...fact to be determined by the jury. State v. Latimer, 9 Kan.App.2d 728, 687 P.2d 648, 653 (1984). See also, State v. Wilkerson, 114 Idaho 174, 180, 755 P.2d 471, 477 (Ct.App.1988). There may be circumstances where speech alone--even arguments or insults directed to an officer--is insufficien......
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