author: MOELLER, Justice.

text:
    David A. KOSMANN, Plaintiff-Appellant, v. Kevin DINIUS, an individual; Dinius & Associates, PLLC, an Idaho professional limited liability company, Defendants-Respondents.
    Docket No. 45779
    Supreme Court of Idaho, Boise, January 2019 Term.
    Opinion filed: May 14, 2019 Petition for Rehearing Denied: August 26, 2019
    Messerly Law, PLLC, Boise, for Appellant. Loren K. Messerly argued.
    Anderson, Julian & Hull, LLP, Boise, for Respondents. Yvonne A. Dunbar argued.
   MOELLER, Justice.

David Kosmann appeals from a judgment of the district court. He asserts that the district court erred in enforcing an oral settlement agreement reached in mediation between Kosmann, Kevin Dinius, and Dinius & Associates, PLLC (collectively "Dinius"). Kosmann also assigns error to the trial court for (1) awarding attorney fees to Dinius as a sanction against Kosmann and his attorney, (2) declining to impose sanctions against Dinius and his attorney, and (3) striking an untimely memorandum and declaration in support of his motion to reconsider. He further requests that the Court award him attorney fees on appeal. For the reasons stated below, we affirm in part and reverse in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Kosmann retained Dinius to represent him in a dispute with a third party concerning the sale of real property. Following trial, Kosmann was awarded a judgment of approximately $32,000. The opposing party appealed. Kosmann had difficulty paying Dinius's attorney fees, so Dinius withdrew from representation and filed a lien for his attorney fees against the judgment. Kosmann then hired Loren Messerly to replace Dinius as his attorney throughout the appeal. The judgment was ultimately affirmed on appeal. Kosmann v. Gilbride, 161 Idaho 363, 386 P.3d 504 (2016). One month later, Kosmann filed a lawsuit against Dinius alleging claims of professional negligence and breach of contract. Dinius was represented by Yvonne Dunbar.

The trial court ordered mediation and appointed a mediator. The mediation occurred on July 26, 2017. After several hours of contentious negotiations, the parties reached a tentative agreement to settle the dispute by having Dinius make a payment of $40,000 to Kosmann. However, before the agreement was final, Messerly met in the hallway with Dunbar and requested an additional term: a release of all potential claims by Dinius against Messerly. Dunbar and Dinius refused, stating that they believed it was unethical for Messerly to make such a request. The request caused a considerable delay in the mediation while the attorneys contacted and spoke with counsel from the Idaho State Bar regarding the ethical concern. Eventually, Messerly dropped his request and instructed Kosmann to inform the mediator that he would accept the original proposed settlement of $40,000 without the release for Messerly.

Kosmann left the room alone and went into the hall to inform the mediator that he was willing to accept the settlement agreement without the release. However, in addition to conveying his decision, Kosmann asked the mediator if he (Kosmann) could meet one-on-one with Dinius. Messerly claims that he was unaware that Kosmann was going to make this request. Without informing Messerly, the mediator communicated Kosmann's wish to Dinius. Dinius initially refused, but claims that after repeated urging from the mediator, he acquiesced and agreed to meet alone with Kosmann. Neither Dinius nor Dunbar were informed that Messerly was unaware of the meeting. During the meeting, Dinius and Kosmann agreed to settle their dispute for approximately $32,000 (the amount held by the court in the property sale dispute between Kosmann and the third party), with the stipulation that Dinius would not pursue litigation against Messerly.

When about twenty minutes had passed without Kosmann's return, Messerly went into the hallway to see what was going on. At that time, the mediator informed him that Kosmann and Dinius were having a private discussion. Messerly expressed concern over the meeting because Dinius was an attorney and should not have been speaking to Kosmann without Messerly being present. However, the mediator reportedly advised him that the parties to a mediation are allowed to meet alone, if they wish. Soon thereafter, Kosmann returned and informed Messerly of the new settlement terms. At that point, Messerly advised Kosmann that he could either adhere to the renegotiated settlement agreement and end the litigation or continue to pursue the $40,000 settlement. Kosmann chose to end the litigation.

The parties and their counsel then put the renegotiated settlement agreement on the record. Messerly noted on the record that Kosmann initially agreed to settle the matter for $40,000, but that after the private meeting with Dinius, which Messerly did not consent to, Kosmann agreed to settle for approximately $8,000 less in exchange for the release for Messerly. Messerly further stated that he had advised Kosmann not to request the release and that due to ethical considerations he did not want to be included in it. Nevertheless, despite his protestations, Messerly never objected to the revised terms of the settlement. In fact, when it was Dinius's turn to speak, Messerly intervened to ensure that Dinius mentioned "the other part of the deal" on the record-his agreement not to pursue any claims against Messerly. After it was apparent that an accord had been reached, the mediator asked Dinius's attorney, Dunbar, to "take the lead" in drafting the stipulation and a proposed order of dismissal.

In the weeks following the mediation, Dunbar submitted several drafts of a proposed Mutual Release and Settlement Agreement to Messerly. Messerly disagreed with multiple sections of the agreement and proposed his own language. With the parties at an apparent impasse, Dunbar obtained a transcript of the oral settlement agreement put on the record at the conclusion of mediation to confirm that her draft of the agreement was consistent with the terms of the oral agreement. Messerly rejected Dunbar's suggestion that his client share in the cost of the transcript, authoring several heated emails to Dunbar before ultimately advising her that Kosmann had decided to back out of the settlement agreement. As a result, Dinius filed a motion to enforce the oral settlement on August 2, 2017. The following day, Kosmann filed a cross-motion to enforce the $40,000 settlement that the parties agreed to before Dinius met with Kosmann. The district court held a hearing on both motions on August 31, 2017.

Shortly after the hearing-and without leave from the court-Kosmann filed a supplemental brief in support of his motion to enforce the settlement agreement. The following week, Dinius filed a motion to strike Kosmann's supplemental brief on the basis that it was untimely and filed without leave. Two days after Dinius filed his motion to strike, Kosmann filed a corrective Motion for Leave to File Supplemental Material. The district court granted Kosmann's motion and took the supplemental brief under advisement. On November 3, 2017, the district court issued a memorandum decision in which it enforced the oral settlement agreement that was put on the record at mediation.

Meanwhile, the parties had filed cross-motions for sanctions. Kosmann argued that Dinius violated Idaho Rule of Professional Conduct 4.2 by meeting with him alone and that the district court should use its inherent authority to impose sanctions against Dinius for that ethical violation. He also argued that Dinius violated Idaho Rule of Civil Procedure 11(b) by filing (and not withdrawing) the motion to enforce the oral settlement agreement that he believed resulted from Dinius's alleged breach of Rule 4.2. Dinius also argued for sanctions against Kosmann pursuant to I.R.C.P. 11(c) on the basis that Kosmann's motions to enforce the settlement and for sanctions were frivolous and unwarranted by existing law or fact. He also requested payment for one hour of billable time as a sanction against Kosmann and Messerly on the basis that he was forced to file a motion to strike Kosmann's untimely supplemental brief.

The district court denied Kosmann's motion for sanctions on the bases that Dinius's motion to enforce the settlement did not violate I.R.C.P. 11 and that even if Dinius violated Rule 4.2, the Idaho Rules of Professional Conduct do not provide a legal basis for a trial court to impose sanctions for alleged ethical violations. It partially denied Dinius's motion for sanctions to the extent that it found that Kosmann's arguments were not frivolous or unwarranted, but granted the motion in regard to payment for the one hour of billable time Dunbar spent on the motion to strike Kosmann's untimely supplemental brief. The district court's stated reason for granting that sanction was that the brief was not warranted under existing law. It then issued a final judgment in the case.

On December 5, 2017, Kosmann filed a motion to reconsider the court's decisions regarding enforcement of the settlement agreement and the imposition of sanctions. However, he failed to file his memorandum and declaration of counsel in support of the motion within the timeline prescribed by I.R.C.P. 11.2(b). Consequently, Dinius filed a motion to strike Kosmann's untimely filings. On January 24, 2018, the district court issued its Memorandum Decision and Order on Plaintiff's Motion to Reconsider and Defendants' Second Motion to Strike in which it struck Kosmann's untimely filings and denied Kosmann's motion to reconsider in its entirety. Kosmann timely appealed.

II. STANDARD OF REVIEW

"This Court has frequently stated that '[a] motion for the enforcement of a settlement agreement is treated as a motion for summary judgment when no evidentiary hearing has been conducted.' " Seward v. Musick Auction, LLC, 164 Idaho 149, 155, 426 P.3d 1249, 1255 (2018) (quoting Budget Truck Sales, LLC v. Tilley , 163 Idaho 841, 845-46, 419 P.3d 1139, 1143-44 (2018) ). "Such a motion seeks specific performance of the settlement agreement or a declaration of the rights of the parties. As these claims for relief lie in equity, there is no right to jury trial." Id. at 156 426 P.3d at 1256. Accordingly,

the trial court as the trier of fact is entitled to arrive at the most probable inferences based upon the undisputed evidence properly before it and grant the summary judgment despite the possibility of conflicting inferences. This Court freely reviews the entire record that was before the district court to determine whether either side was entitled to judgment as a matter of law and whether inferences drawn by the district court are reasonably supported by the record.

Borley v. Smith, 149 Idaho 171, 176-77, 233 P.3d 102, 107-08 (2010) (internal quotation omitted). Thus, the Court applies the summary judgment standard "when reviewing the district court's order enforcing the settlement agreement." Seward, 164 Idaho at 156, 426 P.3d at 1256.

"The standard of review for an appellate court reviewing a trial court's imposition of sanctions pursuant to I.R.C.P. 11 is one of abuse of discretion." Campbell v. Kildew, 141 Idaho 640, 649-50, 115 P.3d 731, 740-41 (2005). The abuse of discretion standard also applies when we review a district court's decision to reject an untimely filing. See Marek v. Hecla, Ltd., 161 Idaho 211, 221, 384 P.3d 975, 985 (2016).

When this Court reviews an alleged abuse of discretion by a trial court the sequence of inquiry requires consideration of four essentials. Whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason.

Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).

III. ANALYSIS

A. The district court did not err in enforcing the $32,047.19 settlement agreement.

The district court thoroughly reviewed the facts and the applicable law, and concluded that the settlement agreement was an enforceable contract:

[A]fter discussing the status of the case and the proposed agreement with his attorney, Kosmann exercised his ultimate authority as a client to settle these matters. Idaho R. Prof. Conduct 1.2(a) and comment 1. Kosmann and his attorney knew what had occurred in the meeting between Kosmann and Dinius prior to agreeing to the settlement on the record. They had an opportunity to disaffirm the agreement reached by Kosmann and Dinius and/or to end the mediation without reaching a settlement. Yet Kosmann chose not to walk away, and instead agreed to the settlement he had reached with Dinius. The Court has already found that the settlement agreement as entered on the record is a valid and enforceable contract. The facts and circumstances surrounding the meeting between Kosmann and Dinius and subsequent opportunity for Kosmann to discuss that meeting with his attorney do not render the settlement agreement void for violation of public policy, and the Court finds no basis to upset the settlement agreement under these facts.

Kosmann argues that the district court erred in applying contract law principles to determine whether the settlement agreement was enforceable, in deciding that he voluntarily agreed to the $32,047.19 settlement, and in declining to decide whether a violation of Rule 4.2 rendered the agreement unenforceable. We address Kosmann's arguments in turn.

1. The district court did not err in applying contract law principles to determine whether the settlement agreement was enforceable.

Kosmann argues that the district court erred in applying contract law principles to determine whether the settlement agreement was enforceable and that the contract issues in the case "should be moot" because the district court should have applied ethical principles instead.

In addressing whether an oral settlement agreement is enforceable as a contract, we recently stated:

A settlement agreement stands on the same footing as any other contract and is governed by the same rules and principles as are applicable to contracts generally. A contract must be complete, definite and certain in all its material terms, or contain provisions which are capable in themselves of being reduced to certainty. ... [F]ormation of a valid contract requires a meeting of the minds as evidenced by a manifestation of mutual intent to contract. Oral agreements for settlement are generally enforceable as contracts .... especially when acted upon or entered on the court records.

Seward, 164 Idaho at 158-59, 426 P.3d at 1258-59 (internal citations and quotations omitted). Notwithstanding our misgivings over the ethical issues associated with this case, the heart of this dispute is an oral contract. Kosmann has cited no authority for his position that the law of contracts must be entirely abandoned when ethical concerns are raised. Accordingly, the district court correctly applied contract law principles in determining whether the oral settlement agreement entered on the court record was enforceable.

2. The district court did not err in holding that the settlement agreement was enforceable.

Kosmann next argues that the district court erred in holding that the settlement agreement was enforceable because he did not voluntarily agree to it and because the alleged violation of Rule 4.2 rendered it void. The district court found that Messerly had fully advised Kosmann of his option to return to the original agreement and concluded that Kosmann knowingly ratified the settlement agreement and waived any potential objections based on the alleged ethical violation by voluntarily assenting to the settlement agreement on the record.

"A motion for the enforcement of a settlement agreement is treated as a motion for summary judgment when no evidentiary hearing has been conducted." Estate of Holland v. Metro. Prop. & Cas. Ins. Co., 153 Idaho 94, 100, 279 P.3d 80, 86 (2012). Thus, the "Court freely reviews the entire record that was before the district court to determine whether either side was entitled to judgment as a matter of law and whether inferences drawn by the district court are reasonably supported by the record." Borley, 149 Idaho at 177, 233 P.3d at 108.

All contracts "must be complete, definite and certain in all [their] material terms, or contain provisions which are capable in themselves of being reduced to certainty." Seward, 164 Idaho at 158, 426 P.3d at 1258-59. Here, the district court found that the terms of the agreement were definite and "the parties agreed to the essential terms of the settlement agreement on the record .... Both the clients and counsel for each side made clarifying remarks. Neither client repudiated the agreement or sought to modify the material terms." Kosmann does not challenge the district court's findings in that regard, but argues that his agreement to the terms was not voluntary.

"The best evidence to support the parties' intent to contract is to look at the words of counsel and their clients." Id. at 159, 426 P.3d at 1259. In its decision to enforce the settlement agreement, the district court considered the relevant documents, including an affidavit that Messerly submitted describing a conversation he had with Kosmann before Kosmann agreed to the settlement on the record. In the affidavit, Messerly asserts, in pertinent part:

I ... told Kosmann that he had two options: 1) we would fight to get the $40,000 settlement and enforce it, through more mediation that day or likely through a motion practice, with the unfortunate belief that [the mediator] would do whatever he could to support the other side; or 2) he could take the $32,000 and be done but I would put on the record that I had not asked for Dinius' verbal release and also the other highly irregular things that had happened during the mediation. ... Kosmann wanted to be done and did not want to have to litigate for many more weeks to try and get back his $40,000 settlement. So he chose the 2nd option.

The district court also considered Kosmann's statements on the record at the conclusion of mediation, in which he explained his decision to settle:

I'll express the same things I expressed with [Dinius]. It is my hope to be done today. And I want to move forward with my life. I feel comfortable with the agreement that I made with [Dinius] just from man to man, besides all the legal stuff. Would I prefer having more money? Yes. But I also want my peace of mind. And I want to continue with my lawyer, [Messerly], to go on to the litigation that I have ahead of me. And I want bygones to be bygones between [Dinius] and I so that we can end on good terms and we can - we can both move on with our lives. ... I'm doing this for my own accord because today is the day to move forward.

Kosmann's statements not only establish that he was comfortable with the terms of the agreement, but also support the district court's conclusion that he entered into the agreement knowingly and willingly.

On reconsideration, Kosmann asserted that he was coerced into abiding by the agreement with threats of litigation and sanctions from the mediator, Dinius, and Dunbar. The district court considered all relevant documents that were timely filed and determined that "[a] client has the ultimate authority to decide whether to settle his case, and Mr. Kosmann exercised that authority." After reviewing the relevant evidence, the district court again concluded in its decision on reconsideration that:

Mr. Kosmann had the opportunity to confer with his attorney after the meeting with Mr. Dinius and prior to agreeing to the settlement on the record. Mr. Kosmann and Mr. Messerly discussed Mr. Kosmann's options regarding the settlement, and his attorney provided him with advice on those options. The Court found all of this was sufficient to overcome any potential overreaching or influence exerted by Mr. Dinius in the parties' one-on-one meeting. Mr. Kosmann decided to settle after he had consulted and received the counsel of his attorney and was advised as to his options. Mr. Kosmann is bound by his decision.

As a result, it again found that "Kosmann knowingly and willingly entered into the settlement agreement after consulting with his attorney."

Although Kosmann contends that the mediator, Dinius, and Dunbar pressured him into accepting the renegotiated settlement agreement, the record demonstrates that Kosmann had access to Messerly's counsel throughout mediation. The evidence supports the district court's finding that after Kosmann's meeting with Dinius, Messerly instructed him regarding his options and told him that he did not have to accept the renegotiated agreement. As Kosmann himself stated, he chose to do so because he wanted "to move forward" with his life.

As we have said, "a party may not avoid the duties imposed under the terms of a valid and enforceable contract simply because that party subsequently decides that additional terms may be desirable." Seward, 164 Idaho at 159-60, 426 P.3d at 1259-60. Likewise, a party may not avoid a contract simply because that party subsequently decides that different terms are desirable-i.e., a $40,000 payment without a release rather than a $32,047.19 payment with a release. The record clearly demonstrates that Kosmann voluntarily agreed to the settlement agreement at the conclusion of mediation. Furthermore, Kosmann initiated the contact with Dinius himself, thereby creating the very problem he now cites as a basis for undoing the settlement. As a result, notwithstanding the discomfort we have with the manner in which the settlement agreement was consummated, we hold that the district court properly determined that the oral settlement agreement was enforceable.

3. We decline to decide whether Dinius violated Rule 4.2.

The remaining question, then, is whether the alleged ethical violations have so tainted the agreement to render it void. Whether an ethical violation in the negotiation process renders an agreement void is an issue of first impression in Idaho. However, we decline to decide that issue here. Even if a contract could be deemed void or violative of public policy for that reason, there are no findings in the record as to whether Dinius (or any of the attorneys) actually violated the Idaho Rules of Professional Conduct because the trial court properly left that determination to the State Bar. Kosmann argues that Runsvold v. Idaho State Bar, 129 Idaho 419, 925 P.2d 1118 (1996), which holds that an attorney acting pro se in a matter is bound by Rule 4.2, applies to Dinius's conduct during mediation even though Dinius was represented by counsel. The district court found that whether Runsvold applies is an issue of first impression, and again left to the Idaho State Bar the responsibility to make the initial factual determinations necessary to ascertain whether Dinius violated Rule 4.2. We must defer as well, inasmuch as there are no factual findings upon which this court can determine the issue on appeal. However, as will be discussed further below, this question may be answered in the future, if it is presented to us in the proper context.

Additionally, while Messerly is quick to point out that Dinius's behavior constituted a potential ethical violation under Rule 4.2, he completely ignores his own substantial contributions to this case's descent into an ethical quagmire. Specifically, the Court is mindful of the allegations that Messerly initially refused to accept the $40,000 settlement without securing a personal release from Dinius. If proven, such conduct also raises the specter of additional ethical violations under Rules 1.2(a) and 1.7(a)(2). Therefore, given the breadth of the problematic behavior alleged in this case, we properly leave the initial factual determinations as to whether ethical violations occurred to the Idaho State Bar. See I.C. § 3-412.

B. The district court did not err in declining to impose sanctions against Dinius for the alleged violation of Rule 4.2.

Kosmann argues that the district court abused its discretion in declining to sanction Dinius for an alleged violation of Rule 4.2 and in declining to sanction Dinius and Dunbar for allegedly abusing I.R.C.P. 11. The district court found that it did not have authority to impose sanctions for an ethical violation. It did not address whether to impose sanctions against Dinius and Dunbar for abusing I.R.C.P. 11 because that issue was not raised before it.

"The standard of review for an appellate court reviewing a trial court's imposition of sanctions pursuant to I.R.C.P. 11 is one of abuse of discretion." Campbell v. Kildew, 141 Idaho 640, 649-50, 115 P.3d 731, 740-41 (2005).

When this Court reviews an alleged abuse of discretion by a trial court the sequence of inquiry requires consideration of four essentials. Whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason.

Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).

Kosmann did not preserve the issue of whether the district court abused its discretion in declining to sanction Dinius and Dunbar for abusing I.R.C.P. 11. While Kosmann alleged before the district court that Dinius and Dunbar's repeated requests for sanctions were in "clear retaliation" for Kosmann challenging Dinius's actions, merely asserting that their conduct was retaliatory was not sufficient. "A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b)." I.R.C.P. 11(c)(2). Kosmann did not move for sanctions on the basis that Dinius and Dunbar abused I.R.C.P. 11, and the district court did not address the issue sua sponte. As a result, this issue was not preserved for appeal, and therefore, we will not address it. Heckman Ranches, Inc. v. State, By & Through Dep't of Pub. Lands, 99 Idaho 793, 799, 589 P.2d 540, 546 (1979) ("[I]ssues not raised below will not be considered by this court on appeal.").

Regarding the alleged violation of Rule 4.2, the district court concluded that "a potential violation of Rule 4.2, where I.R.C.P. 11 had not been violated, did not warrant invoking the Court's inherent authority to impose sanctions." The court further stated that ethical violations "should be raised with the Idaho State Bar." The district court did not abuse its discretion in declining to impose sanctions for the alleged ethical violation.

Idaho Code section 3-408 provides that the board of commissioners of the Idaho State Bar (board) "shall formulate rules governing the conduct of all persons admitted to practice and shall investigate and pass upon all complaints that may be made concerning the professional conduct of any person admitted to the practice of the law." See also I.C. § 3-412 ("The board of commissioners shall establish rules, subject to the approval of the Supreme Court, governing procedure in cases and investigations involving alleged misconduct of members of the Idaho State Bar, and to make and create committees for the purpose of investigating complaints and charges, which committees may be empowered to recommend to the board discipline ...."). Accordingly, the board promulgated the Idaho Bar Commission Rules, which established the "requirements, qualifications and procedures for ... maintenance of membership in the Idaho State Bar." I.B.C.R. 101. With those rules, the board has designed a comprehensive scheme for submitting complaints alleging ethical violations, investigating those complaints, imposing sanctions where warranted, and for appealing an adverse decision to the Idaho Supreme Court. See I.B.C.R. 500, et seq. Thus, the district court appropriately recognized that whether to issue sanctions for an ethical violation is a decision for the Idaho State Bar.

Kosmann argues that a district court should be able to impose sanctions for a violation of an ethical rule; otherwise, there will be no recourse for an injured party. He is incorrect. To reiterate, "[t]he Rules [of Professional Conduct] are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability." I.R.P.C., Scope, 20. This is so because "the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons." Id. Simply put, the ethical rules that govern our profession are a shield designed to protect litigants from unscrupulous attorney behavior, not a cudgel with which the opposing attorneys can bash each other to gain a tactical advantage in litigation.

Further, while harm to another is not a prerequisite for the Court to sanction an attorney for unethical conduct, Runsvold v. Idaho State Bar , 129 Idaho 419, 421-22, 925 P.2d 1118, 1120-21 (1996), the Court considers harm to others as an aggravating circumstance when issuing sanctions. Idaho State Bar v. Souza , 142 Idaho 502, 506, 129 P.3d 1251, 1255 (2006). Indeed, the Idaho Bar Commission Rules specifically provide for restitution in situations where a client is financially injured by an attorney's unethical conduct. "Restitution may be imposed as a condition of any probation or in conjunction with any Sanction." I.B.C.R. 506. Accordingly, if any of the attorneys in this case committed an ethical violation that caused financial injury to Kosmann, it is within the Idaho State Bar's power to order restitution for such injury.

In sum, we decline to address Kosmann's argument that Dinius and Dunbar should be sanctioned for abusing I.R.C.P. 11 and hold that the district court did not abuse its discretion in declining to sanction Dinius for the alleged violation of Rule 4.2. Likewise, we leave to the Bar responsibility for reviewing the ethical performance of the attorneys in this case.

C. The district court abused its discretion in imposing I.R.C.P. 11 sanctions against Kosmann and Messerly.

Kosmann argues that I.R.C.P. 11 does not support the district court's $200 sanction of him and Messerly, and that imposing the sanction was an error of law because Dinius did not comply with the safe-harbor provision of I.R.C.P. 11(c)(2) in requesting the sanction. The district court determined that an untimely supplemental brief filed by Kosmann warranted sanctions against him and Messerly under I.R.C.P. 11(b)(2).

"The standard of review for an appellate court reviewing a trial court's imposition of sanctions pursuant to I.R.C.P. 11 is one of abuse of discretion." Kildew, 141 Idaho at 649-50, 115 P.3d at 740-41.

When this Court reviews an alleged abuse of discretion by a trial court the sequence of inquiry requires consideration of four essentials. Whether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason.

Lunneborg, 163 Idaho at 863, 421 P.3d at 194.

In imposing sanctions against Kosmann and Messerly, the district court "found that [Kosmann] violated I.R.C.P. 11(b) by filing a brief not warranted by existing law (specifically the rules governing filing deadlines set forth in I.R.C.P. 7(b)(3) and 2.2(b)(1)(B) )." The district court did not properly apply the applicable legal standard from I.R.C.P. 11 in imposing this sanction. The relevant portion of I.R.C.P. 11 provides as follows:

By presenting to the court a pleading, written motion, or other paper, whether by signing, filing, or submitting, or later advocating it, an attorney ... certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
....
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
....

I.R.C.P. 11(b)(2). The language of the rule indicates that it applies where the contents of a document-i.e., "the claims, defenses, and other legal contentions"-are not warranted by existing law, not where the document was merely filed outside of a deadline prescribed by another procedural rule. Id. Thus, the district court did not act consistently with the applicable legal standard for imposing sanctions pursuant to I.R.C.P. 11(b). See Lunneborg, 163 Idaho at 863, 421 P.3d at 194. As a result, the district court abused its discretion, and the sanction must be returned to Kosmann and Messerly.

Because we reverse the district court's decision to impose sanctions against Kosmann and Messerly on the basis that I.R.C.P. 11 does not support the sanction, we need not address whether the district court erred in imposing sanctions in violation of the safe-harbor provision of I.R.C.P. 11(c)(2).

D. We decline to address Kosmann's argument that the district court abused its discretion in striking Kosmann's untimely memorandum and declaration in support of his motion to reconsider.

Kosmann argues that the district court abused its discretion in striking his memorandum and declaration of counsel in support of his motion to reconsider. The district court found that it was appropriate to strike the pleadings because they were untimely and Kosmann did not file a motion for leave.

Kosmann admits that "Messerly initially conceded the issue of the memorandum and declaration being untimely," but asserts that "upon further review, the case law appears unclear." Kosmann's argument is similar to that made by the State in State v. Cohagan, 162 Idaho 717, 721, 404 P.3d 659, 663 (2017). There, we noted that:

[T]he State maintains on appeal, even though it conceded the point below, that the Court must decide whether the interaction between Cohagan and Officer Curtis was lawful. This is incorrect. ... "[I]ssues not raised below will not be considered by this court on appeal, and the parties will be held to the theory upon which the case was presented to the lower court."

Cohagan , 162 Idaho at 721, 404 P.3d at 663 (quoting Heckman Ranches, Inc., 99 Idaho at 799-800, 589 P.2d at 546-47 ). Kosmann conceded before the district court that the memorandum and declaration were untimely. Thus, to the extent that Kosmann now asserts on appeal that he may have timely filed the documents, we will not address his argument.

Kosmann further argues that the district court should have considered the documents even if they were untimely and that failing to do so "promote[d] a procedural technicality over substantive legal issues, contrary to law." However, he also states that "[i]t is not clear if the Court's ruling to strike the Memorandum and Declaration actually had any substantive impact."

"Idaho courts are to 'disregard all errors and defects that do not affect any party's substantial rights.' " Matter of Doe, 163 Idaho 565, 571, 416 P.3d 937, 943 (2018) (quoting I.R.C.P. 61 ). "Consequently, because an appellant can only prevail if the claimed error affected a substantial right, the appellant must present some argument that a substantial right was implicated." Id. (quoting Hurtado v. Land O'Lakes, Inc., 153 Idaho 13, 18, 278 P.3d 415, 420 (2012) ). Kosmann has not presented any argument that the district court's refusal to consider the untimely memorandum and declaration implicated a substantial right. As a result, we decline to address Kosmann's argument that the district court abused its discretion in striking the untimely memorandum and declaration in support of his motion to reconsider.

E. Kosmann is not entitled to attorney fees on appeal.

Kosmann argues that he is entitled to attorney fees on appeal pursuant to a draft of the settlement agreement, under Idaho Code section 12-121, and as a sanction against Dinius for an alleged violation of Rule 4.2. However, Kosmann is not entitled to attorney fees on appeal under any of his proffered theories.

First, we address the written settlement agreement drafted by Dunbar. The written agreement contained a provision stating that "[t]he prevailing Settling Party in any litigation or other enforcement action concerning, relating to, or arising out of this Agreement shall be awarded its reasonable attorney's fees and costs incurred in connection with such litigation or enforcement." However, both parties acknowledge that the draft agreement was never signed. Indeed, Kosmann's refusal to sign any of the four versions of the written agreement spurred this litigation. Thus, notwithstanding our decision to enforce the oral settlement agreement, the written settlement agreement was never a binding contract and Kosmann cannot recover attorney fees under its attorney-fee provision.

Next, Idaho Code section 12-121 allows a prevailing party to recover attorney fees where "the case was brought, pursued or defended frivolously, unreasonably or without foundation." Because Kosmann did not prevail on the gravamen of his appeal-setting aside the oral settlement agreement and enforcing the earlier $40,000 settlement-he is clearly not the prevailing party and is, therefore, not entitled to attorney fees under Idaho Code section 12-121.

Finally, Kosmann requests attorney fees as a sanction for Dinius's alleged violation of Rule 4.2. As we previously noted, the Idaho State Bar has implemented a thorough process for determining whether an ethical violation occurred and what sanctions are appropriate for a given violation. See I.B.C.R. 500, et seq. Accordingly, we decline to circumvent that process and impose a sanction in the form of attorney fees against any of the attorneys in this case.

IV. CONCLUSION

The record in this case is so tarnished with questionable conduct that it has presented this Court with a vexing ethical and legal dilemma. While we are gravely concerned over the potential ethical lapses which allegedly occurred during the mediation of this matter, there are no findings in the record concerning these matters. Therefore, as the trial court determined, we will leave to the Idaho State Bar, if properly called upon, the responsibility to investigate this matter further and make the necessary findings and conclusions as to the ethical issues presented.

However, as to the contract issues appropriately before us, we affirm the district court's decisions enforcing the oral settlement agreement and declining to impose sanctions against Dinius for the alleged violation of Rule 4.2. We reverse the district court's imposition of sanctions against Kosmann and Messerly and order Dinius and Dunbar to return the $200 sanction in a timely manner. Because both sides partially prevailed, we do not award attorney fees or costs on appeal to either party.

Chief Justice BURDICK, and Justices BRODY, BEVAN and STEGNER concur.

      The mediator was a sitting district judge from another district.

      The Court recites the specifics of the mediation throughout this Opinion in accordance with Idaho Rule of Evidence 507(5)(a)(6), which provides that claims of "professional misconduct ... against a mediation party ... occurring during a mediation" are an exception to the general rule of privilege applied to mediation communications.

      Messerly alleges that Dinius had threatened to sue him for indemnification on a claim relating to the property sale dispute and for interfering with his attorney-client relationship with Kosmann.

      Notwithstanding the party's allegations that the mediator not only permitted, but repeatedly urged Dinius to meet privately with Kosmann without confirming Messerly's consent, the Court rejects the notion from both sides that they were "ordered" to participate in these acts because the mediator was a sitting judge. Although the mediator is a district judge, he was not the presiding judge on this case and he had no actual or apparent authority to order the attorneys or their clients to do anything. Additionally, although we are mindful that both parties have accused the mediator of using coercive tactics during the mediation, we recognize that the mediator is not a party to this case and did not have an opportunity to address these allegations.

      Although the fact that Kosmann initiated the contact with Dinius may be relevant for determining whether Kosmann consented to the settlement agreement, it does not immunize Dinius from claims he violated his ethical duties under Rule 4.2. See I.R.C.P. 4.2, comment 3 ("The Rule applies even though the represented person initiates or consents to the communication.")

      Rule 1.2(a) states that "[a] lawyer shall abide by a client's decision whether to settle a matter," while Rule 1.7(a)(2) provides that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest." In demanding a personal release for himself as a condition of settlement, Messerly may have created a conflict of interest between himself and his client. Further, had Messerly not requested this personal release-which he acknowledges would be of no benefit to his client-it is likely that the entire Rule 4.2 issue would not have arisen. In fact, even if we fully accept Messerly's view of the facts, it is highly probable from an objective view of the record that Kosmann-a man Messerly describes as susceptible to pressure-would not have made the decision to privately meet with Dinius and seek a release for Messerly, had he not been prompted to do so by his attorney's actions.

      This provision of the unsigned agreement was not discussed as part of the oral settlement placed on the record at the conclusion of the mediation.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Idaho, Plaintiff-Appellant, v. Isaac Lyle SALDIVAR, Defendant-Respondent.
    Docket No. 46098
    Supreme Court of Idaho, Boise, April 2019 Term.
    Opinion filed: June 5, 2019 Petition for Rehearing Denied: August 26, 2019
    Lawrence G. Wasden, Idaho Attorney General, Boise, for Appellant. Kenneth K. Jorgensen argued.
    Eric Don Fredericksen, State Appellate Public Defender, Boise, for Respondent. Ben P. McGreevy argued.
   MOELLER, Justice.

I. NATURE OF THE CASE

The State appeals from an Ada County district court order granting Isaac Lyle Saldivar's motion to suppress evidence that he unlawfully possessed a firearm. During a pat-search, police discovered a Smith & Wesson semi-automatic pistol in the left front pocket of Saldivar's pants. The police later learned that Saldivar was a parolee who was wanted on an active warrant. The district court determined that the officers lacked reasonable suspicion to conduct the pat-search. The district court further held that the inevitable discovery exception was inapplicable to the facts of this case and granted the motion to suppress. The State argues that the search was reasonable under the circumstances, and that even if it was not, the inevitable discovery exception applies to this case. It also argues that because of his parole status, Saldivar did not retain a reasonable expectation of privacy regarding the pat-search. For the reasons stated below, we reverse.

II. FACTUAL AND PROCEDURAL BACKGROUND

On December 4, 2017, at approximately 5:30 a.m., Officers Trent Schneider and Joe Martinez were dispatched to an apartment in Boise to investigate a recent shooting. Dispatch advised the officers that one person had been shot at the apartment, other people in the apartment were intoxicated, and the gun used in the shooting was still inside the apartment. It was dark outside when the officers approached the building from the front. As they approached the front door to the apartment, Saldivar came around from the back of the building carrying a tote. Because the gun was believed to still be at the premises and the shooter had not yet been identified, the officers ordered Saldivar to show them his hands, turn around, and get on the ground. Saldivar complied with these demands without conflict. At that point, Officer Schneider placed him in handcuffs and conducted a pat-search of Saldivar for weapons.

The search revealed a gun in the front left pocket of Saldivar's pants. Unbeknownst to the officers at that time, Saldivar was on parole and had waived his rights concerning searches under the Fourth Amendment and the Idaho Constitution. After the pat-search, Officer Schneider conducted a warrant check on Saldivar and discovered that he had an outstanding arrest warrant. As a result, Saldivar was taken into custody and subsequently charged with illegally possessing a firearm as a convicted felon in violation of Idaho Code section 18-3316.

On February 16, 2018, Saldivar filed a motion to suppress on the basis that the officers lacked a reasonable, articulable suspicion that he was armed and dangerous, and thus the search was unreasonable. The State argued that Saldivar did not have standing to challenge the search because he waived his right to do so as a condition of his parole, the search was reasonable in light of the circumstances, and, even if the search was not reasonable, the attenuation and inevitable discovery exceptions applied. During a hearing on the motion to suppress, Officer Schneider testified that it is "standard operating procedure" to pat-search anyone who is handcuffed and that such searches are for "officer safety reasons only." He also testified that his concerns in this case were due to the shooting he was investigating, the fact that it was dark outside, and he could not see clearly. Neither officer testified that they had reason to believe that Saldivar was dangerous, aside from the fact that he was near the residence where the shooting occurred.

After the hearing on the motion to suppress, the district court granted the motion on the bases that the search was not reasonable under the circumstances, the officers could not retroactively justify the search based on a waiver they had no knowledge of before the search, and the attenuation and inevitable discovery doctrines did not apply. The State timely appealed.

III. STANDARD OF REVIEW

The Court conducts a bifurcated review when it considers a motion to suppress. State v. Watts , 142 Idaho 230, 232, 127 P.3d 133, 135 (2005). This means that when a ruling on a suppression motion is challenged on appeal, "the Court accepts the trial court's findings of fact that are supported by substantial evidence, but freely reviews the application of constitutional principles to the facts as found." State v. Page , 140 Idaho 841, 843, 103 P.3d 454, 456 (2004).

IV. ANALYSIS

The State argues that the district court erred in concluding that the search was not reasonable under the circumstances and that the inevitable discovery doctrine does not apply to the facts of this case. It further argues that the district court erred in determining that Saldivar, a parolee, retained a reasonable expectation of privacy despite waiving his rights concerning searches of his person.

"Like the Fourth Amendment, the purpose of Art. I, § 17 is to protect Idaho citizens' reasonable expectation of privacy against arbitrary governmental intrusion. To this end, warrantless searches are presumed to be unreasonable unless the search can be justified under one of the exceptions to the warrant requirement." State v. Christensen , 131 Idaho 143, 146, 953 P.2d 583, 586 (1998) (internal citation omitted). With this understanding, we address the State's arguments in turn.

A. The pat-search was reasonable under the totality of the circumstances.

The State argues that the search was reasonable under the totality of the circumstances because the officers reasonably concluded that Saldivar may have been armed and dangerous given the nature of the potential crime they were investigating and his respective location to the scene.

Search and seizure questions require a delicate balance between the need for police to effectively investigate crime and citizens' rights to be secure in their homes from unreasonable government intrusion. The weighing of facts needed to reach this balance precludes the use of simple rules, but instead requires a case by case determination.

Christensen , 131 Idaho at 148, 953 P.2d at 588. "This Court maintains free review ... over whether the facts surrounding the search and seizure satisfy constitutional requirements." State v. Downing , 163 Idaho 26, 29, 407 P.3d 1285, 1288 (2017). Officers may conduct a pat-search of a detainee who is reasonably believed to be armed and dangerous. State v. Henage , 143 Idaho 655, 660, 152 P.3d 16, 21 (2007). "A pat-search allows a law enforcement officer to investigate 'without fear of violence being inflicted upon the officer's person.' " Downing , 163 Idaho at 30, 407 P.3d at 1289 (quoting State v. Rawlings , 121 Idaho 930, 933, 829 P.2d 520, 523 (1992) ). The test for reasonableness is objective and depends on whether the facts would warrant a reasonable person to believe "that the action taken was appropriate." Henage , 143 Idaho at 660, 152 P.3d at 21 (quoting Terry v. Ohio , 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ).

The district court acknowledged that the test for reasonableness of a search is an objective one:

Case law requires that the officer believe -- well, let me be careful about that because it's not a subjective belief. It's that a reasonable person would believe, given all of the facts and circumstances known to that reasonable person, that the pat-down subject is armed and dangerous. And there needs to be articulable reasons why the subject is armed and dangerous.
That's an objective test, not subjective belief.

After noting that it "d[id] not doubt that Officer Schneider had officer safety concerns," the district court focused on the fact that "Officer Schneider never testified that he had safety concerns about Mr. Saldivar specifically." However, it apparently disregarded the officer's testimony that he was concerned about officer safety generally because "[t]here was a gun involved. And any other times someone is detained, we have officers walking around to make sure there are no guns pulled on ourselves or others." Additionally, the officer agreed that darkness at the scene caused further officer safety concerns. Thus, by focusing on a single statement by the officer that Saldivar did not appear to be dangerous, it appears that the district court improperly relied on a subjective test in determining whether the pat-search was reasonable, rather than objectively considering the totality of the circumstances known to the officer at the time.

Further, the district court's decision appears, at least in part, to be based on its concerns with the officer's testimony that "it is standard operating procedure ... to frisk anyone in handcuffs." The district court was justifiably troubled over the constitutional implications of officers replacing the requisite "armed and dangerous" analysis with a "standard operating procedure" of frisking everyone they detain. We have similar concerns with such a notion but conclude that, under an objective analysis, the officers in this case had reasonable, articulable suspicion that Saldivar was armed and dangerous based on the facts of this case.

In State v. Bishop , we enumerated several factors to consider in determining whether it was reasonable for officers to believe that an individual was armed and dangerous for purposes of a pat-search. 146 Idaho 804, 819, 203 P.3d 1203, 1218 (2009). The factors include, but are not limited to:

[W]hether there were any bulges in the suspect's clothing that resembled a weapon; whether the encounter took place late at night or in a high crime area; and whether the individual made threatening or furtive movements, indicated that he or she possessed a weapon, appeared nervous or agitated, appeared to be under the influence of alcohol or illegal drugs, was unwilling to cooperate, or had a reputation for being dangerous.

Id . We further stated that, "[w]hether any of these considerations, taken together or by themselves, are enough to justify a Terry frisk depends on an analysis of the totality of the circumstances." Id.

The trial court properly found, based upon the officer's testimony, that the officer did not notice any bulges in Saldivar's clothing, that the incident did not occur in a high crime area, that Saldivar did not make furtive movements, did not attempt to flee, complied with the officer's commands, and that he did not know who Saldivar was before the pat-search. Thus, aside from being in the early morning hours when it was still dark out, none of the factors listed in Bishop were present here. However, while the district court also recognized that "[p]roximity to the scene of a dangerous crime does factor into the reasonableness inquiry," it determined that proximity alone cannot justify a frisk. We note that our decision in Bishop , as well as other persuasive authority, supports a contrary conclusion. As noted, in Bishop , we acknowledged that any single factor could be sufficient under a totality of the circumstances standard. 146 Idaho at 819, 203 P.3d at 1218. See also Henage , 143 Idaho at 663, 152 P.3d at 24 (Schroeder, J., specially concurring) ("The right to frisk can arise simply from the nature of the possible crime the officer is investigating."); In re Doe , 145 Idaho 980, 983, 188 P.3d 922, 925 (Ct. App. 2008) ("[I]t is not unlikely that someone engaged in stealing another person[']s property would arm himself."); State v. Burgess , 104 Idaho 559, 561, 661 P.2d 344, 346 (Ct. App. 1983) ("[T]he police had reason to suspect that Burgess may have been engaged in a burglary. It is not unreasonable to believe that burglars can be armed and dangerous.").

Further, the district court failed to give sufficient weight to the other relevant circumstances in the record that justified the pat-search. For instance, the officers' knowledge as they arrived at the scene-i.e. , that someone had sustained a gunshot wound in the apartment, other people at the apartment were intoxicated, and the gun was still there-when coupled with Saldivar's sudden appearance from behind the building in close proximity to the scene, provided a compelling and constitutional reason for conducting a pat-search. These factors, when considered objectively, support a reasonable belief by the officers that Saldivar may have been armed and dangerous. Accordingly, we hold that under the totality of the circumstances, the pat-search of Saldivar was reasonable.

B. We need not address whether the district court erred in holding that the inevitable discovery doctrine does not apply in this case.

The State also argues that the district court erred in determining that the inevitable discovery exception does not apply in this case because, even if the officers had not found the gun during the allegedly unlawful pat-search, they still would have detained Saldivar, checked for outstanding warrants, and arrested him upon discovering his outstanding warrant. It further argues that, upon arresting Saldivar, the officers would have conducted a constitutionally permitted search incident to arrest that would have led to their discovery of the illegal firearm. Saldivar argues that absent the allegedly unlawful pat-search, the officers would not have continued their inquiry and thus would not have discovered the gun. The district court agreed, averring that the State's argument-that routine questioning by the officers would have led to discovery of the warrant in this case, and thus discovery of the gun-was based on "speculative chronology," which is not sufficient to invoke the inevitable discovery exception. Accordingly, the district court determined that the inevitable discovery exception did not apply.

In light of our conclusion that the pat-search of Saldivar was reasonable, we decline to address this issue here.

C. We need not address whether Saldivar retained a reasonable expectation of privacy concerning searches of his person in light of his parole waiver.

The State argues that because Saldivar was a parolee, who had previously waived his right to object to searches as a condition of probation, he did not have an expectation of privacy that society would recognize as reasonable. Therefore, the State asserts that it does not matter whether the officers knew of Saldivar's status as a parolee before they searched him.

While this Court would typically address the question of whether there was a reasonable expectation of privacy as the first step in its Fourth Amendment analysis, there is no need to do so here. While we generally agree that "parolees ... have severely diminished expectations of privacy by virtue of their status alone," Samson v. California , 547 U.S. 843, 852, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), the State's argument is essentially a post hoc justification for the conduct of the police, based on information the police did not know at the time. However, the information the police reasonably relied on at the time of the initial detention and subsequent pat-search provided a valid constitutional basis for denying the motion to suppress. Therefore, there is no need to address this issue and we decline the State's invitation to further delineate the extent of Saldivar's Fourth Amendment rights as a parolee.

V. CONCLUSION

We reverse the district court's decision granting Saldivar's motion to suppress and remand the case for further proceedings consistent with this opinion.

Chief Justice BURDICK, and Justices BRODY, BEVAN and STEGNER concur.

      Although not pertinent to this appeal, further investigation revealed that the gun-shot wound was self-inflicted.

      He was also charged with grand theft because the gun was found to be stolen; however, that charge was later dismissed because the State failed to establish probable cause that Saldivar stole it.

      The trial judge correctly noted that these statements were elicited through a leading question asked by the prosecutor during the officer's direct examination at the suppression hearing; however, Saldivar's attorney made no objection. Inasmuch as the statements were not stricken, they remain a part of the record.


author: HORTON, Justice.

text:
    STATE of Idaho, Plaintiff-Respondent, v. Peter O'Donald CLARKE, Defendant-Appellant.
    Docket No. 45062
    Supreme Court of Idaho, Boise, August 2018 Term.
    Opinion filed: June 12, 2019 Petition for Rehearing Denied: August 26, 2019
    State Appellate Public Defender's office, Boise, for appellant. Jenevieve C. Swinford argued.
    Idaho Attorney General's office, Boise, for respondent. Theodore Tollefson argued.
   HORTON, Justice.

Peter O'Donald Clarke ("Clarke") appeals from his judgment of conviction, entered upon a jury verdict finding him guilty of possession of methamphetamine, marijuana, and paraphernalia. The methamphetamine, marijuana, and paraphernalia were all found on him during a search incident to arrest for misdemeanor battery.

On appeal, Clarke argues that the district court erred when it denied his motion to suppress. Clarke contends his arrest for the misdemeanor was unlawful because it had been committed outside of the officer's presence; and thus the arrest violated the constitutions of the United States and Idaho. Clarke also alleges prosecutorial misconduct during closing argument. For the following reasons, we vacate Clarke's judgment of conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

At approximately 6:45 p.m. on August 1, 2016, a young woman, Taylor Dan ("Dan"), flagged down a Kootenai County Deputy Sheriff (Michael Hanson) near Honeysuckle Beach in Hayden, Idaho. Dan reported that she had been harassed and groped by a man earlier in the day while trying to enjoy the beach with her young son. She reported she had been sitting on the beach with her son when she was approached by a man unknown to her. The man appeared to her to be intoxicated. She felt uncomfortable and had to keep moving away from him. The man made unwanted personal advances, calling her "hot" and "fine." Despite telling the man she was married and not interested in speaking to him, the man persisted. He sat down next to her and eventually grabbed her "butt." Dan told the man "don't touch me" and "stop," but he did it a second time. The man, who was later identified as Clarke, then asked her to call his lost cell phone so he could locate it. Dan called Clarke's cell phone and then left with her son. Soon after leaving, Dan received a harassing text message from Clarke. (Dan deleted the text message upon its receipt.) After giving the deputy a description of Clarke, Dan advised the deputy she wished to press charges.

Deputy Hanson, within a short time of speaking to Dan, located Clarke. Clarke admitted to talking to Dan and to grabbing her butt in the way Dan had described; however, he maintained the touching was consensual.

Based on Dan's complaint and Clarke's confirmation that the described touching had occurred, Deputy Hanson arrested Clarke for misdemeanor battery. Clarke was searched incident to his arrest. Deputy Hanson, in conducting a search of Clarke's backpack, uncovered syringes, a baggy containing marijuana, and a baggy containing several small chunks of a white crystalline substance, later identified as methamphetamine. In addition, when Clarke was being booked into the Kootenai County jail, a partially filled syringe containing a white substance, later identified as methamphetamine, was found in Clarke's right shoe.

Clarke was charged with felony possession of a controlled substance and bound over to district court following a preliminary hearing. Clarke moved to suppress the evidence obtained following his warrantless arrest. Soon thereafter, Clarke was charged by Information with felony possession of methamphetamine, misdemeanor possession of marijuana, misdemeanor possession of paraphernalia, and misdemeanor battery (the latter being the charge that resulted in his arrest).

Clarke pursued his motion to suppress. He alleged there was neither a constitutional nor a statutory basis upon which he could have been arrested; so, as a result, his arrest had been unlawful. If his arrest were unlawful, the contraband obtained in the search incident to arrest would be "fruit of the poisonous tree" and therefore subject to suppression.

The district court conducted a hearing on Clarke's motion. Following testimony from Deputy Hanson and Clarke, the district court found that probable cause existed for Clarke's arrest. The district court also found the arrest permissible under both of the applicable constitutional provisions ( U.S. Const. amend. IV and Idaho Const, art. 1, § 17 ) and under the applicable Idaho statute, Idaho Code section 19-603(6).

The case proceeded to trial. Shortly before trial, the State dismissed the battery charge for lack of evidence. Clarke was tried on the remaining charges. A jury convicted him of felony possession of a controlled substance (methamphetamine), misdemeanor possession of a controlled substance (marijuana), and misdemeanor possession of drug paraphernalia. Clarke appeals, alleging the district judge erred in denying his motion to suppress and that the deputy prosecutor engaged in misconduct during closing argument that resulted in an unfair trial.

Clarke's appeal advances claims that his arrest for a misdemeanor committed outside the presence of the officer was unconstitutional under both the federal and state constitutions and that the prosecutor's comments during closing argument constituted prosecutorial misconduct. Because we find Clarke's constitutional argument to be dispositive, we do not reach his remaining arguments.

II. STANDARD OF REVIEW

"In reviewing a district court order granting or denying a motion to suppress evidence, the standard of review is bifurcated." State v. Draper, 151 Idaho 576, 592, 261 P.3d 853, 869 (2011). "This Court will accept the trial court's findings of fact unless they are clearly erroneous." Id. "However, this Court freely reviews the trial court's application of constitutional principles in light of the facts found." Id.

III. ANALYSIS

The dispositive issue in this appeal is whether a police officer violates Article I, Section 17 of the Idaho Constitution by making an arrest for a misdemeanor offense that occurred outside his presence but for which probable cause exists.

Article I, Section 17 of the Idaho Constitution has long been interpreted in conjunction with Idaho Code section 19-603 and its predecessor statutes, which were in place at the time of the adoption of the Idaho Constitution. See State v. Green , 158 Idaho 884, 888, 354 P.3d 446, 450 (2015). This statute articulates the bases upon which an arrest may be made in this state. Until 1979, the interpretation of the Constitution and the statutes that preceded Idaho Code section 19-603 largely echoed the general rule of federal cases-that a warrantless arrest was lawful if the arresting officer had probable cause to believe a felony had been committed or if the offender had committed a misdemeanor in the presence of the officer. Id. ; State v. Polson , 81 Idaho 147, 152, 339 P.2d 510, 513 (1959) (officer may arrest a person if he has probable cause to believe that person committed a felony); State v. Conant , 143 Idaho 797, 799-800, 153 P.3d 477, 479-80 (2007) (officer may make a warrantless arrest when a person has committed a public offense in the presence of a peace officer.)

In 1979, subsection 6 was added to Idaho Code section 19-603 and since then, the constitutional standard and the statutory standard have diverged. Subsection 6, from its inception, allowed the warrantless arrest of a person when there was reasonable cause to believe he had committed a misdemeanor assault or battery outside the presence of the officer, e.g., in a domestic violence situation. See State v. Julian, 129 Idaho 133, 141, 922 P.2d 1059, 1067 (1996) (Walters, J., special concurrence). The language in section 19-603(6) has been amended several times, but each modification has kept the original intent-that when there is probable cause to believe certain misdemeanors have been committed outside the presence of an officer, a warrantless arrest is nevertheless lawful.

Clarke argues that the statute limiting warrantless misdemeanor arrests to those committed in the officer's presence in effect at the adoption of the Idaho Constitution, as well as Idaho case law since its adoption, prohibits a warrantless arrest for what he describes as a completed misdemeanor. As declared by this Court in Green , the statute governing warrantless arrests in effect at the time the Idaho Constitution was adopted was in "Title III, Chapter V, Section 7540 of the Idaho Revised Statutes"-a predecessor statute to Idaho Code section 19-603 which stated the usual rule of misdemeanor arrests, without subsection (6) or (7). Green , 158 Idaho at 888, 354 P.3d at 450.

Based on language in Green , Clarke argues that the statute at the time of the adoption of the Idaho Constitution was incorporated into the Constitution, and should be viewed as part of it. In Green , this Court declared:

Provisions of the Idaho Constitution must be construed in light of the law prior to their adoption. Because the constitutional guarantee against unreasonable seizure of the person includes an arrest, the Idaho Constitution incorporated the principles regarding arrest in the Idaho statutory and common law in 1890 when the constitution was adopted.

Id. (internal citations omitted) (italics added).

Recently, in Green , this Court interpreted Idaho Code sections 19-603(6) and (7) and explained their relationship to Article I, Section 17 of the Idaho Constitution : "[b]ecause these subsequently enacted arrest standards did not exist at the time the Idaho Constitution was adopted, and because they were not incorporated by constitutional amendment, they cannot be considered part of the constitutional standard for what constitutes a reasonable seizure of the person." Green , 158 Idaho at 888-89, 354 P.3d at 450-51 (italics in original). As a corollary, Green held "[b]ecause the constitutional guarantee against unreasonable seizure of the person includes an arrest, the Idaho Constitution incorporated the principles regarding arrest in the Idaho statutory and common law in 1890 when the constitution was adopted." Id. at 888, 354 P.3d at 450.

However, we conclude that this statement in Green is overbroad. Green should stand for the principle that preexisting statutes and the common law may be used to help inform our interpretation of the Idaho Constitution, but they are not the embodiment of, nor are they incorporated within, the Constitution. To hold otherwise would elevate statutes and the common law that predate the Constitution's adoption to constitutional status.

When construing the Idaho Constitution, "the primary object is to determine the intent of the framers." Idaho Press Club, Inc. v. State Legislature, 142 Idaho 640, 642, 132 P.3d 397, 399 (2006) (quoting Williams v. State Legislature, 111 Idaho 156, 158-59, 722 P.2d 465, 467-68 (1986) ). The best resource is the compilation of the Proceedings and Debates of the Constitutional Convention of Idaho 1889 (I.W. Hart ed., 1912). Unfortunately, Article I, section 17 was adopted without debate. In the absence of the words of the framers, rights guaranteed by the state constitution are "examined in light of the practices at common law and the statutes of Idaho when our constitution was adopted and approved by the citizens of Idaho." State v. Creech, 105 Idaho 362, 392, 670 P.2d 463, 493 (1983). This Court has long taken this approach to interpreting our state constitution. See, e.g, Toncray v. Budge, 14 Idaho 621, 647, 95 P. 26, 34-35 (1908) ("We must now determine the meaning of the language used in [ Art. 6, § 3 of the Idaho Constitution ] in the light of conditions as they existed, at the time the constitutional convention was in session, in July, 1889.")

We have explained the significance of case law and statutes existing in 1889 as follows: "Because many of the delegates to the Constitutional Convention were outstanding lawyers in their day, we generally presume that they knew and acted on such prior and contemporaneous interpretations of constitutional words which they used." Paulson v. Minidoka Cnty. Sch. Dist. No. 331, 93 Idaho 469, 472 n.3, 463 P.2d 935, 938 n.3 (1970) (citing Higer v. Hansen, 67 Idaho 45, 62, 170 P.2d 411, 422 (1946) ). Thus, a review of the common law is in order.

Blackstone explained:

The constable ... hath great original and inherent authority with regard to arrests. He may, without warrant, arrest any one for a breach of the peace, and carry him before a justice of the peace. And, in case of felony actually committed, or a dangerous wounding whereby felony is like to ensue, he may upon probable suspicion arrest the felon. ...

4 W. Blackstone, Commentaries *289 (1765).

By 1883, a scholar of the common law wrote:

There were, and, indeed, still are a good many differences of the considerable importance in the procedure relating to the prosecution of felonies and misdemeanours respectively. The most important are, that as a rule a person cannot be arrested for [a] misdemeanour without a warrant; that a person committed for trial for a misdemeanor is entitled to be bailed (speaking generally), whereas a person accused of felony is not; and that on a trial for felony the prisoner is entitled to twenty peremptory challenges, whereas upon a trial for misdemeanour he is entitled to none.

Stephen, History of the Criminal Law of England, 193 (1883) (emphasis added).

The common law, as it developed throughout the United States prior to 1889, appears to have been unanimous in agreement with that articulated above. See Commonwealth v. McLaughlin, 66 Mass. (12 Cush.) 615, 618 (1853) ("Peace officers may, without warrant, arrest a party whom they have reasonable ground to suspect of having committed a felony. But a peace officer cannot arrest one without warrant, who is suspected of having committed a crime, not a felony."); Butolph v. Blust, 41 How. Pr. 481, 489-90 (N.Y. Gen. Term. 1871) ; Jamison v. Gaernett, 73 Ky. 221, 225-26 1874 ; Quinn v. Heisel, 40 Mich. 576, 578 (1879) (That officers "have a right to [warrantless] arrest for breaches of the peace committed in their presence is conceded by all. It is equally clear that they cannot arrest for a past offense, not a felony, upon information or suspicion thereof. ..."); Taaffe v. Slevin, 11 Mo. App. 507, 513 (1882) ("[A] peace officer has no common-law power to arrest without a warrant, on mere suspicion of a misdemeanor, although he may do so for a breach of the peace, or misdemeanor less than a felony, committed in his presence."); Robison v. Miner [People ex. rel. Robison v. Haug], 68 Mich. 549, 37 N.W. 21, 25 (1888) ("no arrest can be made without warrant except in cases of felony or in cases of breaches of the peace committed in the presence of the arresting officer."), overruled on other grounds by Burroughs v. Eastman, 101 Mich. 419, 59 N.W. 817 (1894) ; Pinkerton v. Verberg, 78 Mich. 573, 44 N.W. 579, 582-83 (1889) ("Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our constitution guaranties.").

Our research has failed to uncover any decision from a sister state prior to our State's constitutional convention which held that a peace officer could make a warrantless arrest for an offense committed outside his presence. The earliest such case that we have been able to locate was decided in 1895. That case, Baltimore & O.R. Co. v. Cain, 81 Md. 87, 31 A. 801 (1895), presented a unique set of facts. There, the plaintiff sued the railway company for false imprisonment. Id. at 802. The plaintiff and three companions were intoxicated when they boarded a train. Id. Despite the conductor's pleas that they desist, the party then "cursed and swore and drank liquor openly" in the presence of female passengers. Id. When the conductor told them that they would be removed from the train, they threatened him with violence. Id. The conductor then telegraphed ahead for an officer to arrest the plaintiff. Id. at 803. Following his arrest, the plaintiff paid a fine for his disorderly conduct. Id. at 804.

The court rejected plaintiff's claim, observing: "The plaintiff's first prayer ought to have been rejected. Its fallacy lies in the postulate that an arrest for a breach of the peace, committed out of the view of a peace officer, necessarily could not be legally made without a warrant." Id. at 805. The court's rationale would today fall under the rubric of "exigent circumstances." The court explained: "[t]he right of a person not an officer to make an arrest is not confined to cases of felony, for he may take into custody, without a warrant, one who in his presence is guilty of an affray or a breach of the peace. Id. at 803. The court continued:

it was clearly lawful, under these conditions, for the conductor to expel him and his drunken companions from the train if he had a sufficient force to overcome their threatened resistance, or else to arrest them all without warrant, and then deliver them to the first peace officer he could procure within a reasonable time. If this were not so, then, as said by Lord Chief Justice Denman in Webster v. Watts , [63 E. C. L. 311], "the peace of all the world would be in jeopardy." And it would be in jeopardy, because if, in such and similar instances, no arrest could be lawfully made without a warrant, the culprit, "if transient and unknown, would escape altogether," before a warrant could be obtained ( Mitchell v. Lemon , 34 Md. [176,] 181 [ (1871) ] ), and there would soon cease to be any order or any security or protection afforded the public on swiftly-moving railroad trains, or even elsewhere, unless a peace officer were constantly present. The delay necessarily incident to obtaining a warrant would be in many, if not in most, cases of this and a kindred character equivalent to an absolute immunity from arrest and punishment; and, should the name of the offender be unknown, he, most probably, would never be apprehended if once suffered to depart. The law is not so impotent and ineffective as that. Being physically unable to expel these alleged riotous persons from the train, the conductor telegraphed for a peace officer, and without delay, and while the plaintiff was still drunk, caused his arrest the instant the officer thus summoned came in view of the plaintiff. If, then, any bystander could, in the language of Baron Parke, "for the sake of the preservation of the peace, * * * restrain the liberty of him whom he sees breaking" the peace, the act of the conductor in telegraphing for the policeman, and within a short space of time thereafter handing the plaintiff over to the officer, was in no respect different from a formal arrest of the plaintiff by the conductor, in the midst of the riot and disorder, and the prompt delivery of him afterwards to the officer. If the plaintiff was not in fact arrested by the conductor because of the presence of superior resisting force, that fact cannot make the subsequent act of the conductor in pointing out the plaintiff to the officer wrongful or illegal.

Id. at 804.

Notwithstanding this change in the common law of Maryland, two decades after our constitutional convention, the United States Supreme Court continued to recognize the traditional common law rule in John Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874 (1900), stating that "an officer, at common law, was not authorized to make an arrest without a warrant, for a mere misdemeanor not committed in his presence." Id. at 534, 20 S.Ct. 729.

In 1915, this Court was given the opportunity to address the issue in State v. Mox Mox, 28 Idaho 176, 152 P. 802 (1915), and we implicitly continued to apply the common law rule. There, the defendant complained that a jury instruction "assumes that a person may be arrested without a warrant for a past misdemeanor not committed in the presence of the officer performing the arrest." Id. at 182, 152 P. at 804. The Court rejected the contention, explaining that the jury instruction:

does not assume the law to be that a person may be legally arrested without a warrant for a past misdemeanor not committed in the presence of the officer performing the arrest, but it tends to instruct the jury that, if the constable had reasonable cause to believe appellant was committing, or was about to commit, a crime, it was his duty, without a warrant, to endeavor to prevent him from committing it, and to arrest him, even though he had completed the offense before he could be prevented from so doing.

Id. at 183, 152 P. at 804.

In light of the foregoing, based upon the state of the common law in 1889, we conclude that the framers of the Idaho Constitution understood that Article I, section 17 prohibited warrantless arrests for completed misdemeanors.

We are fully mindful of the significance of this conclusion. "Domestic violence is a serious crime that causes substantial damage to victims and children, as well as to the community." I.C. § 32-1408(1). Idaho Code section 19-603(6) permits peace officers to use their arrest powers to intervene in domestic violence situations, even though they have not personally observed the commission of a crime, and to thereby defuse potentially violent circumstances. Nevertheless, the extremely powerful policy considerations which support upholding Idaho Code section 19-603(6) must yield to the requirements of the Idaho Constitution. For this reason, we vacate Clarke's judgment of conviction. In light of this decision, we do not reach Clarke's remaining claims of error.

IV. CONCLUSION

We vacate Clarke's judgment of conviction.

Chief Justice BURDICK, and Justices BRODY, BEVAN and STEGNER concur.

      Dan described Clarke as "a black male with a beard, approximately 30 to 40 years old, wearing a muscle shirt, an orange shirt, and black shorts with a black backpack and carrying a brown sack."

      "Fruit of the poisonous tree" is a legal metaphor meaning that evidence is inadmissible in court if the evidence was derived from evidence that was illegally obtained. Segura v. United States, 468 U.S. 796, 801, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) ; accord, e.g., State v. Bishop, 146 Idaho 804, 810-11, 203 P.3d 1203, 1209-10 (2009). In other words, if the source of the evidence (the tree) is poisonous, so is its fruit. See id.

      1979 Idaho Sess. Laws 832.

      Although the language in the various iterations has changed from "reasonable cause" to "probable cause," those phrases are understood to have the same meaning. See Julian , 129 Idaho at 136, 922 P.2d at 1062 ; see also Ch. 307, § 1, 1979 Sess. Laws 832; Ch. 318, § 1, 1994 Sess. Laws 1019, 1019-20; Ch. 89, § 1, 1997 Sess. Laws 214, 214-15; Ch. 314, § 4, 1997 Sess. Laws 929, 930-31; Ch. 337, § 5, 2004 Sess. Laws 1007, 1010.

      In the proceedings before the district court, Clarke argued that section 19-603(6) had been violated by Deputy Hanson's arrest of him. The district court rejected Clarke's argument. Clarke has not appealed this finding. Consequently, we take it as an accomplished fact that Clarke's arrest complied with Idaho's applicable statute. However, that does not end the inquiry. As Green teaches, there can be a divergence between what is, or is not, authorized by statute and what is, or is not, allowed by Idaho's Constitution.

      A completed misdemeanor is one which is no longer in progress when the officer arrives on the scene.

      Similar considerations appear to have motivated the Legislature to enact Idaho Code section 19-603(7).


author: BRAILSFORD, Judge

text:
    STATE of Idaho, Plaintiff-Respondent, v. Elijah Z. NUSS, Defendant-Appellant.
    Docket No. 45683
    Court of Appeals of Idaho.
    Filed: March 21, 2019 Petition for Rehearing Denied: August 26, 2019
    Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy Appellate Public Defender, Boise, for appellant.
    Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent.
   BRAILSFORD, Judge

Elijah Z. Nuss appeals from his judgment of conviction for lewd conduct with a minor child under the age of sixteen. Nuss argues that the district court abused its discretion by allowing a "facility dog" and its handler in the courtroom during the victim's testimony. Nuss asserts their presence was prejudicial and deprived him of a fair trial. For the reasons set forth below, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In 2016, the State charged Nuss under Idaho Code § 18-1508 with one felony count of committing a lewd act on a fourteen-year-old child. At the time of trial, the victim was sixteen years old. Before trial, the district court informed the parties that it would allow a "facility dog" to be present during the victim's testimony pursuant to I.C. § 19-3023. Nuss objected, arguing that the facility dog's "mere presence" or "knowledge" of the dog would be prejudicial and that the facility dog would make the victim appear "more vulnerable" and would give her testimony "more credence and emotionality."

The district court overruled the objection. It noted the potential for prejudice, however, and its intent to make the facility dog's presence "as low key as possible." Further, the district court stated its plan to excuse the jury from the courtroom for purposes of moving the facility dog in and out of the courtroom.

Before trial, the district court instructed the jury about the possible presence of a facility dog and to disregard its presence. During a recess before the victim took the stand, the facility dog's handler situated the facility dog under the witness's seat and took a seat behind the witness stand. At that point, Nuss objected to the handler's presence as prejudicial. The district court overruled the objection, noting the handler's sole purpose was to deal with the facility dog if there were any issues.

The victim then testified. During a recess in this testimony, the district court informed the parties that it intended to allow the handler to walk the facility dog out of the courtroom in the jury's presence to avoid the disruption of another recess. Nuss did not object, and after the victim's testimony, the district court excused the handler, whom he identified for the jury at that time as the facility dog's trainer. At the conclusion of trial, the jury found Nuss guilty, and he timely appeals.

II.

STANDARD OF REVIEW

When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the district court: (1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently with any legal standards applicable to the specific choices before it; and (4) reached its decision by an exercise of reason. State v. Herrera , 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).

This Court exercises free review over the application and construction of statutes. State v. Reyes , 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the statute's language is plain and unambiguous, this Court must give effect to the statute as written, without engaging in statutory construction. State v. Burnight , 132 Idaho 654, 659, 978 P.2d 214, 219 (1999) ; State v. Escobar , 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The statute's language is to be given its plain, obvious, and rational meaning. Burnight , 132 Idaho at 659, 978 P.2d at 219. If the language is clear and unambiguous, there is no occasion for the court to resort to legislative history or rules of statutory interpretation. Escobar , 134 Idaho at 389, 3 P.3d at 67. When this Court must engage in statutory construction because an ambiguity exists, it has the duty to ascertain the legislative intent and give effect to that intent. State v. Beard , 135 Idaho 641, 646, 22 P.3d 116, 121 (Ct. App. 2001). To ascertain such intent, not only must the literal words of the statute be examined, but also the context of those words, the public policy behind the statute and its legislative history. Id. It is incumbent upon a court to give an ambiguous statute an interpretation which will not render it a nullity. Id . Constructions of an ambiguous statute that would lead to an absurd result are disfavored. State v. Doe , 140 Idaho 271, 275, 92 P.3d 521, 525 (2004).

III.

ANALYSIS

Nuss challenges the district court's decision to allow a facility dog and its handler at the witness stand with the victim. He argues the presence of both the facility dog and its handler was prejudicial and that the district court failed to mitigate this prejudice. We disagree.

Whether a facility dog is allowed in the courtroom when a minor testifies is controlled by I.C. § 19-3023. In 2017, the legislature amended this statute to include a facility dog as support for a child witness. At the time of Nuss's trial, the statute provided in relevant part:

When a child is summoned as a witness in any hearing in any criminal matter ... parents, a counselor, friend or other person having a supportive relationship with the child, or a facility dog, shall be allowed to remain in the courtroom at the witness stand with the child during the child's testimony unless in written findings made and entered, the court finds that the defendant's constitutional right to a fair trial will be unduly prejudiced.

I.C. § 19-3023(1).

This Court in State v. Mercado , 159 Idaho 656, 365 P.3d 412 (Ct. App. 2015), addressed a claim that the district court erred in allowing a victim witness coordinator to sit with the victim at the stand pursuant to I.C. § 19-3023. Mercado , 159 Idaho at 658, 365 P.3d at 414. In that case, this Court concluded the statute's plain and unambiguous language requires the district court to allow a support person to sit at the witness stand if: (1) the witness is a child; (2) the support person has a supportive relationship with the child; and (3) the district court does not make written findings of undue prejudice. Id. Further, the Court concluded that " I.C. § 19-3023 is unambiguous and establishes an uncomplicated rule for trial courts to evaluate and apply as the circumstances of the case necessitate." Mercado , 159 Idaho at 660, 365 P.3d at 416. It declined to adopt a "new multifactor test" for the statute's application. Id. at 661, 365 P.3d at 417. Accordingly, the Court concluded that to prevail on a challenge to a support person's presence, the defendant "must demonstrate that the district court did not properly apply [the] legal standard or exercise reason" when allowing a support person to sit with the victim. Id. at 659, 365 P.3d at 415.

Mercado was decided before the 2017 amendment to include a facility dog as support. The statute's addition of a facility dog, however, does not undermine Mercado 's application to this case. The reasoning and analysis in Mercado remain sound. The only distinction is that there is no requirement that the facility dog have a "supportive relationship" with the child. Because the legislature inserted the phrase "or a facility dog" after the requirement of a "supportive relationship," we conclude any "relationship" or prior familiarity between the facility dog and the child is unnecessary to allow the facility dog's presence. Thus, the statute's plain language requires the facility dog's presence if: (1) the witness is a child and (2) the district court does not make written findings of undue prejudice.

Idaho Code § 19-3023 does not have a specific provision for the presence of the facility dog's handler, whose presence Nuss challenges in this case. We conclude that the statutory provision for the facility dog's presence necessarily includes the presence of its handler. The statute's purpose is to create a more calming, supportive environment for the child while testifying. Obviously, the child cannot act as the handler. Further, to assume that a facility dog (albeit very well-trained) could perform its function without the aid of its handler is unreasonable. Accordingly, we conclude that I.C. § 19-3023 requires the district court to allow the presence of both a facility dog and its handler during a child's testimony, absent written findings of undue prejudice.

We are not persuaded by Nuss's argument that the facility dog and its handler prejudiced Nuss's constitutional right to a fair trial. Nuss argues the district court should have made written findings that he would be unduly prejudiced by their presence. In support, Nuss merely echoes his trial counsel's pretrial argument that the presence of a facility dog would make the victim "appear more vulnerable" and give her "testimony more credence and emotionality." There is no indication, however, that the facility dog's presence actually caused this prejudice. For example, there is no record the facility dog was disruptive, distracted either the witness or the jury, or otherwise behaved inappropriately. Absent such a record, we cannot conclude the district court abused its discretion by allowing the facility dog's presence.

Likewise, there is no record the handler's presence actually caused Nuss any prejudice. As with the facility dog, there is no record of disruption or distraction. In support of Nuss's claim that he was prejudiced by the handler's presence, Nuss contends "the district court even acknowledged it could be more problematic having a support person present." What the district court actually said is that "sometimes it can be much more problematic [than the facility dog's presence] when you have a family member or someone providing support [who] has a hard time controlling their facial expressions and those kinds of things." There is no record that the handler had difficulty controlling her facial expressions or was otherwise influencing the witness. For that reason, Nuss's argument that the handler could have added credibility to the victim's testimony is without merit. The handler was not present to support the victim; the handler was there to control the facility dog. Allowing the handler to be present for this purpose and positioning her behind the witness stand, as the district court did, was not an abuse of discretion.

To the extent the mere presence of the facility dog and its handler posed prejudice, as Nuss argues, the district court appropriately addressed that potential. It instructed the jury pretrial:

I will allow the presence of a facility dog in the courtroom during the testimony of one o[r] more of the witnesses in the case. You may or may not see the dog.
You are to disregard the presence of the facility dog. You are to draw no inference for or against any witness using a facility dog. You are to attach no significance whatsoever to the presence of the dog. The dog being with the witness is merely a tool that I have decided to use to promote a more calming supportive setting for the witness.

Nuss challenges this instruction as inadequate because it did not include any reference to the facility dog's handler. While the instruction may have more appropriately included a reference to the handler, the district court instructed the jury during trial about the handler's purpose. Taken together, the district court's instructions were appropriate, and we presume the jury followed them. See State v. Carson , 151 Idaho 713, 718, 264 P.3d 54, 59 (2011) (presuming jury followed instructions absent indication otherwise).

Nuss also criticizes the district court for allowing the facility dog to exit the courtroom in the jury's presence. Nuss complains the district court originally proposed pretrial that the facility dog would exit the courtroom during a recess but then later announced its intention to permit the facility dog to exit in the jury's presence to avoid another recess. On appeal, Nuss states this procedure failed "to mitigate the prejudice" of the facility dog. Nuss, however, never objected to the district court's decision to allow the facility dog's exit in the jury's presence. Regardless, the district court did not err. See State v. Adamcik , 152 Idaho 445, 473, 272 P.3d 417, 445 (2012) (concluding error is necessary for application of fundamental error doctrine.) The trial court has discretion to control the presentation of evidence, which should be done so as to avoid wasting time. See Idaho Rule of Evidence 611.

IV.

CONCLUSION

The district court did not abuse its discretion by allowing the facility dog, along with its handler, to accompany the victim at the witness stand during her testimony. Idaho Code § 19-3023 required their presence, which did not unduly prejudice Nuss. Accordingly, we affirm the judgment of conviction.

Judge HUSKEY and Judge LORELLO concur.

      A facility dog "means a dog that is a graduate of an assistance dog organization that is a member of assistance dogs international or a similar internationally recognized organization whose main purpose is to grant accreditation to assistance dog organizations based on standards of excellence in all areas of assistance dog acquisition, training and placement." Idaho Code § 19-3023(3).