IN THE COURT OF APPEALS OF THE STATE OF IDAHO
An unofficial communication
prepared by the Court staff for
the convenience of the media.
FOR IMMEDIATE RELEASE
NEWS RELEASE (Prehearing)
The Idaho Court of Appeals announced today that retired Idaho Court of Appeals Judge Jesse R. Walters will assist the Court on several cases that will be heard by the Court in Moscow this month. The pro tem will sit with two regular members of the Court for cases on which the Court will hear oral argument. The Court of Appeals is utilizing active and retired judges to assist in handling the Court’s burgeoning case load.
The Idaho Court of Appeals will hear oral argument in the following cases at the University of Idaho, School of Law Courtroom, Moscow, Idaho, on the dates indicated. The summaries are based upon briefs filed by the parties and do not represent findings or views of the Court.
Tuesday, April 10, 2007
9:00 a.m. Curlee v. Kootenai County Fire & Rescue - No. 32794 - Kootenai County
10:30 a.m. Hausladen v. Knoche - No. 32610 - Kootenai County
1:30 p.m. Berry v. Ostrom - No. 32561 - Bonner County
Wednesday, April 11, 2007
9:00 a.m. State v. Bloom - No. 31935 - Bonner County
10:30 a.m. State v. Quick Release Bail Bonds - No. 32460 - Kootenai County
1:30 p.m. State v. Dominguez - No. 32126 - Kootenai County
Thursday, April 12, 2007
9:00 a.m. State v. Kemmish - No. 32802 - Benewah County
10:00 a.m. State v. Cheeney - No. 32625 - Nez Perce County
11:00 a.m. State v. Kaminski - No. 32375 - Lemhi County
MOSCOW, IDAHO, Tuesday, April 10, 2007, AT 9:00 A.M.
IN THE COURT OF APPEALS OF THE STATE OF IDAHO
v.
KOOTENAI COUNTY FIRE & RESCUE,
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Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.
Rude, Jackson & Daugharty, Coeur d'Alene, for appellant.
Ramsden & Lyons, Coeur d'Alene, for respondent.
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Mary C. Curlee was an employee with Kootenai County Fire and Rescue (KCFR). Curlee was transferred into the administrative offices of KFCR. Curlee perceived the actions of her immediate coworkers as a waste of public funds and manpower. Over a period of two years, Curlee expressed her concerns about the behavior of her coworkers on multiple occasions to several of her superiors, including her direct supervisor. On the instructions of two of her superiors, but not her supervisor, Curlee maintained a detailed, handwritten log of the wasteful activities engaged in by her two coworkers.
Approximately seven months after Curlee began keeping her log, her coworkers inadvertently discovered it. The coworkers were angry that Curlee had been recording their office activities and felt that they had been referred to in a derogatory and insulting manner in the log. Curlee’s supervisor confronted her about the log. After she refused to help develop a solution to ease tension in the workplace as requested by her supervisor, Curlee’s employment was terminated.
Curlee filed suit against KCFR. Curlee’s complaint alleged that she was wrongly terminated for documenting a waste of public funds and manpower. KCFR answered Curlee’s complaint, denied the allegations, and moved for summary judgment. Curlee, at the hearing on the motion for summary judgment, asserted her termination was an adverse action in violation of the Idaho Protection of Public Employees Act. The district court granted KCFR’s motion for summary judgment. Curlee moved the district court to reconsider its granting of summary judgment, which the district court denied. Curlee appeals.
MOSCOW, TUESDAY, APRIL 10, 2007, AT 10:30 A.M.
IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 32610
FRANK WILLIAM HAUSLADEN, JR.,
Petitioner-Appellant,
v.
SHARI COLENE (DAWSON) KNOCHE,
Respondent.
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Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John P. Luster, District Judge; Hon. Barry E. Watson, Magistrate.
F. William Hausladen, Jr., Sandpoint, pro se appellant.
Richard W. Kochansky, Coeur d’Alene, for respondent.
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Frank Hausladen appeals from the magistrate’s denial of costs and attorney fees that he incurred in opposing Shari Knoche’s motion for a change in custody and visitation rights regarding the parties’ child.
Moscow, tuesday, april 10, 2007, AT 1:30 p.m.
IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 32561
JAMES W. BERRY,
Plaintiff-Respondent,
v.
ED OSTROM,
Defendant-Appellant.
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Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. Steven C. Verby, District Judge. Hon. Justin W. Julian, Magistrate.
Featherston Law Firm, Sandpoint, for appellant.
Bruce Hammond Greene, Sandpoint, for respondent.
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Northtown Investments, a partnership, was formed to develop the Bonner Mall near Sandpoint, Idaho. In 1986, Northtown sold its interest in the mall to Harry Magnuson. After Magnuson declared bankruptcy, U.S. Bank sued Northtown to recover the remainder of the bank’s loan on the mall. One of Northtown’s partners, James Berry, secured a promissory obligation for $50,500, signed by five of the fourteen partners, including Ed Ostrom, to settle the litigation with U.S. Bank. Berry then brought suit against Ostrom for the portion of the note allegedly paid by Berry on Ostrom’s behalf. Concluding that the action was premature absent a winding down and accounting of the partnership, the magistrate granted Ostrom’s motion to dismiss.
On intermediate appeal, the district court reversed the magistrate’s ruling after determining there was a genuine issue of material fact as to whether the promissory note was a partnership debt and, if so, whether a winding up and accounting had already occurred. On appeal to this Court, Ostrom raises the issue of whether the district court erred by reversing the magistrate’s grant of Ostrom’s motion to dismiss.
MOSCOW, WEDNESDAY, APRIL 11, 2007, AT 9:00 A.M.
IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 31935
STATE OF IDAHO,
Plaintiff-Respondent,
v.
CRAIG A. BLOOM,
Defendant-Appellant.
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Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. Steven C. Verby, District Judge.
Fred R. Palmer, Sandpoint, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent.
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Acting on information provided by a confidential informant, police obtained warrants to search Craig A. Bloom’s home and business. The search uncovered almost 46 grams of cocaine, over $34,000 cash, numerous weapons, and drug paraphernalia. Bloom was charged with trafficking in cocaine, I.C. § 37-2732B(a)(2)(A), and while in jail on the charge, negotiated with a fellow inmate to secure the murder of the informant.
After Bloom was released, a drug enforcement agent posing as a hit man met with Bloom. Bloom agreed to pay the undercover agent $500 to kill the informant and was subsequently arrested for solicitation to commit murder. Pursuant to a plea agreement, he pled guilty to trafficking in cocaine in exchange for the state’s dismissal of the solicitation charge. In addition, the state reserved the right to present the solicitation evidence as an aggravating factor while Bloom reserved the right to present mitigating evidence and object to the court’s consideration of the evidence.
At the sentencing hearing, over Bloom’s objection and claim of entrapment, the district court considered the solicitation evidence as an aggravating factor and imposed a unified sentence of twenty years with five years determinate. Bloom appeals, raising the issues of whether the district court erred in considering the solicitation evidence as an aggravating factor and whether the sentence imposed is excessive.
MOSCOW, WEDNESDAY, APRIL 11, 2007, AT 10:30 A.M.
IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 32460
STATE OF IDAHO,
Plaintiff-Respondent,
v.
ZACHARY BECK,
Defendant,
and
QUICK RELEASE BAIL BONDS,
Real Party in Interest-Appellant.
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Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Charles W. Hosack, District Judge.
Redal and Redal, Coeur d’Alene, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
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Zachary Beck was charged with a felony in Kootenai County. Quick Release Bail Bonds posted his bond in the amount of $50,000.00 and Beck was released. Beck failed to appear as ordered at a pretrial conference. At that time, the district court was informed that Beck had been arrested in another state and was being held on numerous charges. The district court forfeited the bond and issued a bench warrant. Quick Release later filed a motion to exonerate the bond. At that time, Beck had been convicted in Washington and was serving his sentence, but had not been brought to Idaho for trial on the outstanding Idaho felony. The district court denied the motion and Quick Release appeals.
MOSCOW, WEDNESDAY, APRIL 11, 2007, AT 1:30 P.M.
IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 32126
STATE OF IDAHO,
Plaintiff-Respondent,
v.
RICHARD D. DOMINGUEZ,
Defendant-Appellant.
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Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.
John M. Adams, Kootenai County Public Defender; Christopher D. Schwartz, Deputy Public Defender, Coeur d’Alene, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent.
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While incarcerated on an unrelated charge, Dominguez shoved a lunch tray at a jailor causing hot soup to spill and burn her arm. He was subsequently charged with one count of battery on a jailor.
Dominguez was found competent to stand trial, and the case proceeded to trial at which the defendant began complaining of health problems. Dominguez informed the judge of his past mental problems, that his medication had recently been changed, and that he was currently having auditory hallucinations.
After questioning Dominguez, the district court determined that it did not have any concerns about Dominguez’s competency or his ability to assist counsel and proceeded with the trial. The jury found Dominguez guilty, and he now appeals the court’s competency determination.
MOSCOW, THURSDAY, APRIL 12, 2007, AT 9:00 A.M.
IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 32812
STATE OF IDAHO,
Plaintiff-Respondent,
v.
KAL L. KEMMISH,
Defendant-Appellant.
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Appeal from the District Court of the First Judicial District, State of Idaho, Benewah County. Hon. Fred M. Gibler, District Judge; Hon. Patrick R. McFadden, Magistrate.
Douglas D. Phelps, Spokane, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Daniel W. Bower, Deputy Attorney General, Boise, for respondent.
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Kal L. Kemmish appeals his convictions for driving under the influence of alcohol (DUI) and obstructing an officer. He argues that the magistrate should have declared a mistrial after a State witness spoke with a juror, and that a jury instruction misstated the law.
As they were walking up a courthouse staircase during a recess at trial, a witness for the State mentioned to a juror that her sister had recently returned from military deployment overseas. Kemmish contends that this contact merited a mistrial, particularly since the case largely turned on the credibility of the State’s witnesses. He argues that the positive feelings engendered by this information may have rehabilitated the witness’s image after her agitated performance on the witness stand.
Kemmish also objects to an instruction given to the jury which stated that with regard to the DUI charge, the State did not have to prove any particular degree or state of intoxication. He contends that this was a misstatement of the law which improperly decreased burden of evidence on the State.
MOSCOW, Thursday, April 12, 2007, AT 10:00 A.M.
IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 32625
STATE OF IDAHO,
Plaintiff-Respondent,
v.
RUTH M. CHEENEY,
Defendant-Appellant.
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Appeal from the District Court of the Second Judicial District, State of Idaho, Nez Perce County. Hon. Jeff M. Brudie, District Judge.
Clark & Feeney, Lewiston, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Courtney E. Beebe, Deputy Attorney General, Boise, for respondent.
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As an employee at a doctor’s office, Cheeney was responsible for billing and deposits, including deposits of checks received for the doctor’s services into his account at Wells Fargo Bank. In August 2003, the doctor terminated Cheeney’s employment for allegedly procuring fraudulent prescriptions and for irregularities with office petty cash. The doctor soon thereafter discovered that substantial amounts of money were missing. Cheeney allegedly embezzled over $200,000 between January 2000 and August 2003.
The state charged Cheeney with grand theft. Cheeney pled guilty, and the state dismissed charges filed in a separate criminal case. The district court sentenced Cheeney to a unified term of seven years, with a minimum period of confinement of three years, and ordered restitution in the amount of $232,788.49. The district court subsequently suspended Cheeney’s sentence and placed her on probation for seven years. Cheeney objected to the order of restitution. The state requested the restitution be paid to three parties--the doctor; Wells Fargo Bank for payments it made to the doctor to settle a claim over the embezzlement; and a collection agency, Stuart Allen and Associates, for payments to its client, Safeco Insurance Company, had paid to the doctor. At a hearing on Cheeney’s objection to restitution, Cheeney stipulated to $220,589.55 being the proper amount of restitution, but argued that the bank and the collection agency were not entitled to restitution. The district court entered an order for restitution and separate judgments to the doctor for $48,089.55, Wells Fargo Bank for $157,500, and Stuart Allen and Associates for $15,000. Cheeney appeals.
MOSCOW, Thursday, April 12, 2007, AT 11:00 a.m.
IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 32375
STATE OF IDAHO,
Plaintiff-Respondent,
v.
JOHN KAMINSKI,
Defendant-Appellant.
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Appeal from the District Court of the Seventh Judicial District, State of Idaho, Lemhi County. Hon. James C. Herndon, District Judge.
Radakovich Law Office, Lewiston, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Daniel W. Bower, Deputy Attorney General, Boise, for respondent.
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On October 18, 2003, police officers conducted a search of John Kaminski’s house pursuant to a search warrant. An officer frisked Kaminski and found a glass pipe inside of his sock. In a bedroom, the officers found marijuana inside of a toolbox, a 9‑mm handgun inside a soft case lying on top of the bed, and a loaded magazine that went with the gun in a drawer that was part of a wooden gun rack hanging on the wall. In the kitchen, the police found bags of marijuana in a cabinet under a counter and a small bag of marijuana on top of a counter. The state charged Kaminski with unlawful possession of a firearm, possession of a controlled substance, and being a persistent violator.
At trial, Kaminski argued that the handgun and the marijuana were not in his possession and provided the district court with a proposed jury instruction defining the element of possession for both offenses. The district court, however, used Idaho Criminal Jury Instruction 421 to instruct the jury on the element of possession. The jury found Kaminski guilty. Kaminski filed a motion for a new trial, arguing that the district court erred by using I.C.J.I. 421 and there was insufficient evidence to find him guilty of unlawful possession of a firearm and possession of a controlled substance. The district court denied the motion. Kaminski appeals.