No Contact Orders and Probation

The Court of Appeals decided State v. Brian Cobler on December 23, 2008. In that case, Mr. Cobler plead guilty to sexual battery of a minor child. Factually, he and his wife were involved in sexual relationship with a seventeen year old who was mentally and emotionally vulnerable.

Early in the case a No Contact Order was entered forbidding Mr. Cobler from having contact with all minors including his children. After sentencing, he sought to modify the NCO to allow him to have contact with his children. The court denied that motion.

The Court of Appeals overturned that. They noted that a parent has a fundamental right to parent his own children. The court found that "forbidding all contact with Cobler's children is not reasonably necessary to prevent sexual harm to them in this instance, nor is it reasonably related to rehabilitation." There was no indication in Mr. Cobler's case that he would prey upon his own children nor that communication would be harmful to the children.

I think this case is valuable in the context of dealing with the probation department. If you are placed on the "sex offender" caseload in Ada County a standard term and condition of probation on that caseload is no contact with minors, including your own children. This has become very problematic because the "sex offender" caseload has come to encompass sex offenders as well as anyone the probation departments deems a "sex offender" irregardless of their plea. So quite often it's a surprise to your client when suddenly probation forbids them from contacting their kids.

If this happens, file a motion in District Court seeking to modify the terms and conditions of probation. Ask the judge to order your client be allowed to have contact with his children (when the case is appropriate). If the court wouldn't have the jurisdiction to forbid the contact, then the probation department certainly does not.

JON

Another Dennis Benjamin Appeal

And, this one is not a win, but sort of a half-win. It’s one of those cases where the Court of Appeals says that the district court applied incorrect reasoning, but reached the right result anyway. So, even though Dennis’ reasoning and analysis were correct, and the district court did make a mistake, his client is going to get no relief. State v. Wegner, decided yesterday, is about jurisdiction – both the jurisdiction of a district court to accept a guilty plea from a juvenile waived to adult court for an offense that may have occurred before the juvenile’s 14th birthday (the district court can do that) and the district court’s jurisdiction to hear a motion to withdraw a guilty plea made years after the case has become final but which is based on allegations of lack of subject matter over the original offense. The district court can do that too. Wegner is a case to pay attention to if you either have a juvenile charged with offenses that may have occurred before his/her 14th birthday or you have any client who wants to withdraw a plea no matter how old on the grounds that the district court had no subject matter jurisdiction in the first place.

State v. Gerardo

While it may have taken him two days to do so, Dennis Benjamin scores the first appellate win of the year in State v. Gerardo. This was the attempted armed robbery of the Lotus Garden in Meridan with the 110 mile per hour chase ending in a canal. The Court of Appeals found three different points of evidentary error, unfortunately, all harmless, but vacates a sentence enhancement for use of a firearm because the jury instructions on the issue contructively amended the indictment. A must read in the areas of hearsay and admissions of a party opponent, prosecutorial testifying, and constructive amendments. Good job Dennis.

No New Year's Cheer

I guess I shouldn't be surprised that the first appellate case of the year is a loss for the defense, but since it’s my case I hope it’s not an omen of things to come.

In State v. Herrera and Oernelas-Perez, Nos. 33241 and 33284, the defendants were convicted of conspiracy to traffic in heroin and of delivery of cocaine. The delivery conviction comes about as a lesser-included to the charged count of conspiracy to traffic in cocaine. Issue: Delivery is not a lesser-included offense of conspiracy under either the elements theory or as pleaded in the indictment. Problem: One defendant doesn't object to the "lesser-included" instruction and the other agrees with the court's decision to give it. Solution? Argue that giving the instruction on a crime which was neither charged nor a lesser-included of the charge exceeds the subject-matter jurisdiction of the trial court. Subject-matter jurisdiction, after all, can never be waived, right?

The Court of Appeals says it won't consider the lesser-included argument under the invited error doctrine. "Even if an improper lesser included offense instruction was given, the court's subject matter jurisdiction that was conferred via the indictment remained throughout the trial, for subject matter jurisdiction does not depend upon the correctness of any decision made by the court."

Query: If evidence came out during the trial that the co-defendants committed murder or knowingly used a stolen credit card would the trial court have subject-matter jurisdiction to instruct the jury on those uncharged offenses too?

Blog Fodder

Fod·der (fŏd'ər) noun.
1. Feed for livestock, especially coarsely chopped hay or straw.
2. A consumable, often inferior item or resource that is in usually abundant supply.

• No new opinions today from either the Supreme Court or Court of Appeals.
• The Supreme Court will hear argument in Boise on January 12, 14 and 16.
• There is only one criminal case on the calendar, but it has an interesting issue regarding the elements of felony-murder.
• State v. Fuentes-Pina, No. 34192, will be argued on January 12. In this case, the state claimed that Fuentes-Pina was holding Jesse Naranjo at gun point. Johnny Shores talked Fuentes-Pina into giving him the gun, but ends up shooting and killing Naranjo himself. Fuentes-Pina ends up being charged with felony-murder. He argues that the jury should have been instructed that the felony-murder rule requires that the co-defendants act in concert or in furtherance of a common purpose or object.

-- Dennis

No new cases today.

There were no opinions issued by either the Supreme Court or Court of Appeals today. SCOIDBlog will report on all SCOID opinions and selected COA cases as they are issued.

Dennis

New hearsay exception now in effect

As of yesterday, there is a new subsection to IRE 803, the rule which deals with hearsay exceptions where the availability of declarant is immaterial. The new rule permits the admission of medical, dental and other test results without having a witness lay foundation. The text of the new rule is as follows:

"(23) Medical or dental tests and test results for diagnostic or treatment purposes. A written, graphic, numerical, symbolic or pictorial representation of the results of a medical or dental test performed for purposes of diagnosis or treatment for which foundation has been established pursuant to Rule 904, unless the sources of information or other circumstances indicate lack of trustworthiness. This exception shall not apply to:

(A) psychological tests
(B) reports generated pursuant to I.R.C.P. 35(a)
(C) medical or dental tests performed in anticipation of or for purposes of litigation or
(D) public records specifically excluded from the Rule 803(8) exception to the hearsay rule."

There is also a new rule 904 which sets out the foundational requirements for the Rule 803(23) exception.

In sum, the proposed exhibit must identify the person or entity who conducted or interpreted the test, the name of the patient, and the date when the test was performed. Notice must be given at least 45 days before trial. And, the opposing party may file a written objection within 14 days or the document. Otherwise, the document "shall be deemed authentic and admissible without testimony or further identification."

Remember, this exception only applies to documents made for diagnostic purposes. Tests made for litigation purposes are not included and should be objected to under existing hearsay rules and the confrontation clause as testimonial evidence. Also, if you get a notice and you want the foundational witness at trial, you'd better subpoena the witness yourself.

Dennis