author: Opinion by JUDGE RICHMAN

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Mark Anthony JAEB, Defendant-Appellant.
    Court of Appeals No. 15CA2010
    Colorado Court of Appeals, Division V.
    Announced December 27, 2018
    Cynthia H. Coffman, Attorney General, Patrick A. Withers, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
    Megan A. Ring, Colorado State Public Defender, Meredith K. Rose, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
   Opinion by JUDGE RICHMAN

¶ 1 Defendant, Mark Anthony Jaeb, appeals his conviction of one count of theft of property under section 18-4-401(1)(b) and 2(g), C.R.S. 2018, in an amount between $5000 and $20,000 as a class 5 felony. He separately appeals the portion of the order directing restitution for damage to the stolen property in the amount of $289.05. Because we conclude that the trial court improperly admitted evidence of the value of the stolen property, we reverse his conviction for the class 5 felony and remand for entry of conviction on a lesser scheduled offense. But because the prosecution presented adequate proof that defendant's conduct was the proximate cause of the damage to the property, we affirm the order of restitution.

I. Background

¶ 2 The evidence admitted at trial showed that defendant contracted to rent a U-Haul trailer for a period of twenty-four hours in December 2013, but did not return the trailer by the appointed time. About one month later, police discovered the U-Haul trailer, along with several other trailers, on a property that did not belong to defendant but that contained many of his belongings. The People then charged defendant with several theft crimes, though only the rental of the U-Haul trailer is relevant to this appeal.

¶ 3 At trial, the prosecution called U-Haul's traffic control manager for Northern Colorado as its primary witness. She testified that she handled distribution contracts with U-Haul's equipment reservation team and described U-Haul's internal procedures in renting equipment. Through her testimony, the prosecution offered, with no objection, the twenty-four-hour contract between U-Haul and defendant, along with a description of the trailer he had rented. She testified the trailer was rented on or about December 29, 2013, and was not timely returned.

¶ 4 The prosecution also presented the witness with proposed Exhibit 9 as proof of the value of the stolen trailer. The document was a notarized affidavit apparently signed by a manager of the equipment recovery/records department at U-Haul International, who was not called to testify, attesting that the replacement cost of the trailer at issue was $6427 and its actual cash value was $6748. The document was signed July 1, 2015, approximately two months before defendant's trial. A notation on the document below the signature lines indicated that the document was "requested by" the prosecution's witness.

¶ 5 The witness described the document as "our total loss notice" and stated that that the document was kept in the ordinary course of business at U-Haul and that it was a kind of document she saw regularly and had access to. However, she noted it was more often kept "in our equipment recovery department."

¶ 6 Defense counsel objected to admission of the document on the grounds of hearsay, lack of personal knowledge, and authentication. After argument, the court found that the document had "been testified to," which "would make it admissible under 803(6)." The court also concluded that the document could be authenticated under CRE 901 with testimony from a witness. The exhibit was admitted, and defendant was ultimately convicted of one count of theft - $5000 to $20,000.

¶ 7 On appeal, defendant argues that the exhibit was inadmissible hearsay and was admitted in violation of his rights under the Confrontation Clauses. He also claims that because the exhibit was the only evidence for the value of the trailer, his conviction for theft - $5000 to $20,000 must be reversed for insufficient evidence.

II. Whether Admission of the Affidavit Was Proper

A. Preservation and Standard of Review

¶ 8 At trial, defense counsel objected to the admission of Exhibit 9 on grounds of hearsay, improper authentication, and the witness's lack of personal knowledge. However, no objection was made concerning defendant's rights under the Confrontation Clauses of either the Federal or Colorado Constitutions.

¶ 9 We review the preserved hearsay claim for an abuse of discretion under the harmless error standard, see People v. Smalley , 2015 COA 140, ¶ 79, 369 P.3d 737, but review the confrontation claim only for plain error, see People v. Vigil , 127 P.3d 916, 929 (Colo. 2006). "Plain error occurs only when an error so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the jury's verdict." Domingo-Gomez v. People , 125 P.3d 1043, 1053 (Colo. 2005).

B. Applicable Law

¶ 10 Hearsay is defined as any statement "other than one made by the declarant while testifying at the trial ... offered in evidence to prove the truth of the matter asserted." CRE 801(c). Such a statement is ordinarily inadmissible unless it falls under one of the enumerated exceptions to the hearsay rule. CRE 802.

¶ 11 One such exception is the business records exception. It provides that a hearsay document is admissible if (1) it was made at or near the time of the matters recorded in it; (2) it was prepared by, or from information transmitted by, a person with knowledge of the matters recorded; (3) the person who recorded the document did so as part of a regularly conducted business activity; (4) it was the regular practice of that business activity to make such documents; and (5) the document was retained and kept in the course of a regularly conducted business activity. CRE 803(6) ; see also People v. Flores-Lozano , 2016 COA 149 ¶ 13, 410 P.3d 684.

¶ 12 The People argue that another exception to the hearsay rule is found in section 18-4-414(2), C.R.S. 2018, which provides as follows:

For purposes of this part 4, in all cases where theft occurs, evidence of the value of the thing involved may be established through the sale price of other similar property and may include, but shall not be limited to, testimony regarding affixed labels and tags, signs, shelf tags, and notices tending to indicate the price of the thing involved. Hearsay evidence shall not be excluded in determining the value of the thing involved.

¶ 13 The Federal and Colorado Constitutions grant defendants the right to confront witnesses against them. U.S. Const. amend. VI ; Colo. Const. art. II, § 16. This right is violated where the prosecution introduces testimonial hearsay evidence, unless the declarant is unavailable and the defendant had the prior opportunity to cross-examine the declarant. Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). A statement is testimonial if it was made or created with the "primary purpose of creating an out-of-court substitute for trial testimony." People v. McFee , 2016 COA 97, ¶ 34, 412 P.3d 848 (quoting Ohio v. Clark , 576 U.S. ----, ----, 135 S.Ct. 2173, 2180, 192 L.Ed.2d 306 (2015) ).

C. Analysis

¶ 14 We first consider whether the affidavit was inadmissible hearsay that does not come within the business records exception. Second, we consider whether the affidavit, if inadmissible under the business records exception, is nonetheless admissible under the statute relied upon by the People, section 18-4-414. Because of our resolution of these two issues, we need not consider whether the affidavit, if admissible, was admitted in violation of defendant's confrontation rights.

1. Business Records Exception

¶ 15 We conclude that this affidavit was not admissible as a business record under the hearsay exception. As an initial matter, we note that the affidavit is hearsay because it was not "made by the declarant while testifying at the trial" and yet was "offered in evidence to prove the truth of the matter asserted," namely the value of the U-Haul trailer. CRE 801(c).

¶ 16 The purpose of the business records exception is to allow the admission of documents that, although hearsay, were created under such circumstances as to indicate reliability. Thus, to be a business record, the document must be made "at or near the time" of the matters recorded in it. CRE 803(6). "[T]he trustworthiness of the business record is based upon its nature as a routine entry in the ordinary operations of the enterprise ...." People v. Stribel , 199 Colo. 377, 379, 609 P.2d 113, 115 (1980) ; see also Henderson v. Master Klean Janitorial, Inc. , 70 P.3d 612, 617 (Colo. App. 2003). The fact that a document was recorded as a matter of routine at or about the time the time an event occurred, and prior to litigation, makes it less vulnerable to a lack of reliability.

¶ 17 However, here, although the witness testified that the affidavit appraised the value of the trailer as of the time of the theft, the affidavit itself was created a year and half after the theft of the trailer, and two months before trial. Moreover, on its face the document reflects it was requested by the witness. Therefore, the affidavit was not created "at or near the time" of the events recorded in it, CRE 803(6), and lacks the inherent reliability we ascribe to true contemporaneous business records.

¶ 18 Finally, the testimony of the witness did not lay an adequate foundation for a business record as she did not testify, and the trial court did not find, that the document was prepared by, or from information transmitted by, a person with knowledge of the matters recorded; or that the person who recorded the document did so as part of a regularly conducted business activity; or that it was the regular practice of that business activity to make such documents.

2. Applicability of Section 18-4-414(2)

¶ 19 On appeal, the People, with commendable candor, do not argue that the document was admissible as a business record. Instead, they rely on the argument that the affidavit fell under the hearsay exception in section 18-4-414(2). Although the trial court did not contemplate that basis for admitting the affidavit, the People argue we should affirm on that alternative ground instead. We are not persuaded.

¶ 20 Section 18-4-414, titled "Evidence of Value," contains two sections. The first section, applying to theft "from a store," provides that evidence of the retail value of the thing stolen shall be prima facie evidence of its value, and the evidence of the retail value may include affixed labels, price tags, signs, shelf tags, and notices. § 18-4-414(1).

¶ 21 The second section provides that in all cases where theft occurs, evidence of the value of the thing stolen may be established through the "sale price of other similar property" and may include testimony regarding affixed labels and tags, signs, shelf tags, and notices tending to indicate the price of the thing involved. The final sentence of the second section specifies that "[h]earsay evidence shall not be excluded in determining the value of the thing involved." § 18-4-414(2).

¶ 22 In People v. Schmidt , 928 P.2d 805 (Colo. App. 1996), a division of this court explained the rationale of the statute as follows. First, price tags on an item presumptively designate the item's retail value, and customers do not ordinarily bargain over the price of retail goods. Id. at 807. " Section 18-4-414 simply obviates the need to subpoena store managers and go through the same colloquy in every case of retail theft. ... [B]y enacting [ section] 18-4-414, the General Assembly has determined that a price tag affixed to an item offered for sale ordinarily is sufficiently trustworthy so as to speak for itself regarding that item's value and that the utility of confrontation is very remote." Id. at 807-08.

¶ 23 Applying this rationale, we conclude that the statutory examples are intended to include the type of public information given in the retail marketplace, e.g., price tags, signs, and notices indicating the price of the thing involved. Because consumers and sellers rely on these notices, they are not likely to misstate the value of the thing in question.

¶ 24 But the affidavit in this case does not fall into the same category as the price indicators listed in section 18-4-414. Unlike those tags, signs, and notices, the affidavit is a document entirely internal to the victimized business, was generated at the specific request of the prosecution's witness over a year after the date of the trailer's disputed valuation and was generated within the shadow of trial. It therefore lacks the market mechanisms alluded to in section 18-4-414 that ordinarily prevent the misstatement of the value of the thing in question. Unlike with the examples of pre-existing price tags, signs, or notices, there would be no mechanism dissuading the affidavit's declarant from inflating the value of the trailer.

¶ 25 The People argue nonetheless that even if the affidavit is hearsay, it was properly admitted under the second sentence of section 18-4-414(2) because "[h]earsay evidence shall not be excluded in determining the value of the thing involved." They apparently urge us to read this sentence as isolated from the rest of the statute and as establishing a blanket waiver of hearsay rules in the context of proving an item's value in any case involving theft. We decline to do so.

¶ 26 In support of reading section 18-4-414(2) very broadly, the People cite to People v. Pearman , 209 P.3d 1144 (Colo. App. 2008). There, the defendant argued that it was improper to allow a store's loss prevention officer to testify to the value of the items he had attempted to steal, where the officer determined the value by totaling the value of the price tags of the actually stolen property. Id. at 1145. The defendant argued on appeal that, in order to establish value, section 18-4-414(1) required admission of the actual price tags and section 18-4-414(2) 's phrase that "[h]earsay evidence shall not be excluded in determining the value of the thing involved" refers only to proof based on the sale price of similar property, and not of the property itself. Id.

¶ 27 A division of this court disagreed, first holding that section 18-4-414(1) does not provide the exclusive means of proving value of items stolen and therefore does not require the introduction of price tags into evidence. Id. at 1146.

¶ 28 The division also rejected the defendant's argument that section 18-4-414(2) only applies to situations where the evidence of value is based on prices of similar property, stating that, "even assuming, without deciding, that the first sentence of subsection (2) only refers to proving the 'value of the thing involved' by reference to the sale price of similar property, the second sentence is not correspondingly limited, because it does not make the same reference to similar property." Id. (quoting § 18-4-414(2) ).

¶ 29 The present case does not involve the theft of items from a store, nor does it involve proof of value by comparison to "similar property." Nonetheless, the People point out that Pearman states that subsection 2 applies to "all cases where theft occurs." Id. From this, they advance the argument that hearsay of any kind is allowed in any case of theft to prove the value of the item stolen. We disagree.

¶ 30 First, to the extent the division in Pearman stated that the hearsay exception applies to "all cases where theft occurs," id. , we read this assertion as dicta because it was not necessary to the result in that case. The facts in Pearman involved theft from a store. We instead read the statute's language that "[h]earsay evidence shall not be excluded in determining the value of the thing involved" within the context of that subsection and interpret it to provide that hearsay evidence may provide proof of value only where it "regard[s] affixed labels and tags, signs, shelf tags, and notices," or other reliable evidence of "the sale price of other similar property." § 18-4-414(2).

¶ 31 Second, we do not derive a broad exception to the hearsay rule from a statute primarily concerned with theft of items from a store. We recognize, as did the division in Pearman , 209 P.3d at 1146, that the words "from a store" are included in subsection 1 of the statute, and not in subsection 2. But given that the entire statute is otherwise directed at theft of objects with price tags, affixed labels, etc., we are not willing to put as much weight on the absence of the words "from a store" in the second section of the statute as the Pearman division may have done when it stated section 2 applies to "all cases where theft occurs." Id.

¶ 32 In addition, we note that the phrase "in all cases where theft occurs" is found in the first sentence of the section, prefacing the reference to affixed labels, tags, and signs. It is not found in the last sentence which explicitly refers to the admission of hearsay, and insofar as the Pearman division spliced the phrase into the last sentence, we disagree with its analysis.

¶ 33 Third, we are reluctant to conclude that the General Assembly intended to except from the hearsay rule all types of evidence of the value of a stolen item and embedded that broad exception in a statute. Generally, the exceptions to the hearsay rule are explicitly listed in Rule 803. The hearsay rule, and its exceptions, are the product of decades, if not centuries, of the evolution of the common law of evidence. See generally John H. Wigmore, The History of the Hearsay Rule , 17 Harv. L. Rev. 437, 448 (1904). At least two exceptions listed in Rule 803 address evidence similar to the evidence which the prosecution sought to admit here: (1) market reports and commercial publications, Rule 803(17) ; and (2) public records and reports, Rule 803(8). Counsel and courts generally turn to Rule 803 when considering whether evidence is admissible despite the hearsay rule. Indeed, in connection with this affidavit, no party suggested to the trial court that it was admissible under section 18-4-414 ; the argument was centered instead on Rule 803(6).

¶ 34 To the extent that hearsay exceptions are found in other statutes, for example in section 13-25-129, C.R.S. 2018 (child hearsay exception) or section 13-25-129.5, C.R.S. 2018 (hearsay exception for persons with disabilities), we note that those exceptions include specific requirements for independent indicia of reliability, the touchstone of the hearsay exception in Rule 803, and are not blanket exceptions as urged by the People's interpretation of section 18-4-414(2). Without the independent assurance of reliability, simple hearsay evidence of value, which is most likely going to be testimonial evidence, would run afoul of the Confrontation Clauses. But where the hearsay evidence of value is limited to price tags, signs, and shelf tags, as specified in section 18-4-414(2), it is almost certainly not testimonial, and the market forces, referenced in Schmidt , ensure sufficient elements of trustworthiness to allow the hearsay. We thus reject the People's argument that the last sentence of section 18-4-414(2) provides a catchall exception to the hearsay rule whenever the value of a stolen item is at issue.

¶ 35 Because the affidavit presented here does not fall within the business records exception, or a category of evidence alluded to in the statute cited by the People, we hold that it was inadmissible hearsay and that admitting it was an abuse of discretion.

¶ 36 We also conclude that the admission of this evidence was not harmless. The People do not argue that any alternative evidence of the trailer's value was presented at trial, nor do we find any on our review of the record. We therefore reverse.

III. Insufficient Evidence of Theft

¶ 37 Defendant was convicted of one count of class 5 theft - $5000 to $20,000. However, he claims on appeal that because the only evidence given at trial of the trailer's value was inadmissible, he could only be convicted of class 1 petty theft and his conviction must be reversed. Meanwhile, the People argue that if we find admission of the affidavit to be reversible error, they should be permitted to retry the theft charge.

A. Preservation and Standard of Review

¶ 38 The parties agree that defendant preserved his sufficiency claim by moving for a judgment of acquittal and that we review this issue de novo. See People v. Perez , 2016 CO 12, ¶ 8, 367 P.3d 695. They also agree that because sufficiency-of-the-evidence claims raise constitutional concerns, we reverse for any error unless it was constitutionally harmless. See People v. Springsted , 2016 COA 188, ¶ 17, 410 P.3d 702.

B. Applicable Law

¶ 39 In reviewing a sufficiency-of-the-evidence claim, appellate courts must determine whether the "relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt." Clark v. People , 232 P.3d 1287, 1291 (Colo. 2010) (quoting People v. Bennett , 183 Colo. 125, 515 P.2d 466, 469 (1973) ).

¶ 40 Where, as here, the value of the item stolen determines the grade of the offense, the People must present competent evidence of the reasonable market value of the item at the time of the commission of the alleged offense. People v. Moore , 226 P.3d 1076, 1084 (Colo. App. 2009). Market value is what a willing buyer will pay in cash to the true owner for the stolen items. Id.

C. Analysis

¶ 41 Because the inadmissible affidavit listed evidence of replacement cost and cash value, but not market value, and because no other evidence of the trailer's value was presented at trial, we conclude that the jury heard no competent evidence of the trailer's value. See id. , 226 P.3d at 1084. Thus, the evidence was necessarily insufficient to find defendant guilty of the class 5 felony of theft - $5000 to $20,000.

¶ 42 However, in the face of this insufficiency, the parties dispute the proper remedy. Defendant argues that the judgment of conviction should be reversed and the case remanded for entry of judgment on a lesser theft charge that requires no proof of the stolen item's value, citing to People v. Codding , 191 Colo. 168, 170, 551 P.2d 192, 193 (1976) (where evidence was insufficient to sustain felony theft conviction but sufficient as to misdemeanor theft, conviction of felony theft was reversed and remanded for resentencing on lower charge). The People, meanwhile, urge that they be allowed to retry defendant on the class 5 theft - $5000 to $20,000 - charge, citing to People v. Marciano , 2014 COA 92M-2, ¶ 46, 411 P.3d 831 (where conviction was predicated on erroneously admitted, and therefore insufficient evidence, case was remanded for new trial). Referring to Lockhart v. Nelson , 488 U.S. 33, 34, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988), the People argue that a re-trial is not precluded by the Double Jeopardy clause in these circumstances.

¶ 43 Although a re-trial is permissible under Lockhart, and while Marciano ordered a re-trial of theft charges reversed because of insufficient evidence of the offense itself, we conclude that this case is different. Here, unlike in Marciano , the People succeeded in proving a theft even without the improperly admitted evidence. The excluded evidence here related only to the degree of the theft, not the fact of the theft.

¶ 44 Therefore, in accordance with the pronouncement in Codding , 191 Colo. at 170, 551 P.2d at 193, where a theft is established by the evidence, but the classification of the theft charged is not proven by competent evidence of value, we conclude that the proper remedy in these particular circumstances is to remand for entry of judgment for the lesser offense.

IV. Sufficient Evidence that Defendant Caused Trailer Damage

¶ 45 Finally, in challenging the restitution order, defendant argues that the prosecution failed to prove that he proximately caused the damage to the trailer. We disagree.

¶ 46 At the restitution hearing, the prosecution introduced unchallenged testimony that defendant stole the trailer, and that the trailer was in rentable condition at the time defendant took possession of it. The prosecution also introduced unchallenged evidence that after being recovered from defendant's unlawful possession, the trailer was not in rentable condition and required $289.05 in repairs that did not result from ordinary wear and tear on the unit.

¶ 47 The trial court entered a restitution order that included the amount of $289.05 for damages to the trailer. On appeal, defendant challenges this order, claiming that the prosecution failed to prove that he was the proximate cause of any damage.

A. Preservation and Standard of Review

¶ 48 Defendant preserved this issue because he contested the order of restitution. He argues that we should review the sufficiency of the restitution determination de novo, while the People argue that we should review it for an abuse of discretion. People v. Vasseur , 2016 COA 107, ¶ 12, 409 P.3d 524. While it is true that the terms and conditions of a restitution award are reviewed for an abuse of discretion, People v. Ortiz , 2016 COA 58, ¶ 26, 381 P.3d 410, defendant here claims that the prosecution failed to prove that he caused the damage, which is a sufficiency determination that should be reviewed de novo. Id. We will therefore review accordingly.

B. Applicable Law

¶ 49 "Restitution" is defined as those losses suffered by a victim that are "proximately caused by an offender's conduct and that can be reasonably calculated and recompensed in money." § 18-1.3-602(3)(a), C.R.S. 2018. The prosecution is required to prove an amount of restitution by the preponderance of the evidence, i.e., that the evidence shows that the existence of a fact is more probable than not. Ortiz, ¶ 27.

C. Analysis

¶ 50 We conclude that the evidence presented at the restitution hearing was sufficient to support the trial court's restitution order. Defendant does not allege on appeal that he did not steal the trailer, only that the damage to the trailer could have been caused by someone else, such as the police hauling the trailer away from where defendant was keeping it. But even if we assume the trailer was damaged by police, defendant is still the proximate cause of the damage because his theft was the proximate cause of the necessity of hauling the trailer. This is because proximate cause has been defined as "a cause which in natural and probable sequence produced the claimed injury" and "without which the claimed injury would not have been sustained." People v. Clay , 74 P.3d 473, 475 (Colo. App. 2003)

(citation omitted) (where damage to stolen vehicle resulted from police's failure to use their own resources to store it, defendant's initial theft of the vehicle was the proximate cause of losses incurred by private party seeking restitution). Thus, even if we assume that the trailer was damaged by the police, the damage was the natural and probable consequence of defendant's theft and would not have occurred but for his actions. See id. We conclude that the evidence presented at trial was sufficient for the trial court to find that defendant proximately caused the damage and the restitution award was proper.

V. Conclusion

¶ 51 We affirm the award of restitution but reverse the judgment and sentence for the felony theft conviction, and we remand for an entry of judgment and resentencing on class 1 petty theft.

JUDGE ROMÁN and JUDGE BERGER concur.

      We further note the relevant holding in People v. Codding , 191 Colo. 168, 170, 551 P.2d 192, 193 (1976) was recently followed in People v. Reed , 2013 COA 113, ¶ 67, 338 P.3d 364.


source: Caselaw Access Project

author: Opinion by JUDGE NIETO JUDGE TOW, specially concurring.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jasmine BURLINGAME, Defendant-Appellee.
    Court of Appeals No. 16CA2198
    Colorado Court of Appeals, Division IV.
    February 7, 2019
    Beth McCann, District Attorney, Katherine A. Hansen, Deputy District Attorney, Denver, Colorado, for Plaintiff-Appellant
    Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee
   Opinion by JUDGE NIETO

¶1 The People appeal the trial court's dismissal of charges against defendant, Jasmine Burlingame, based on outrageous government conduct. We reverse and remand with directions.

I. Background

¶2 Defendant alleged that after a night out drinking with a coworker, she went with him to his home. She reported that later that evening she was raped by his roommate. She submitted to a Sexual Assault Nurse Examiner exam where samples were taken from various places on her body. Police investigators contacted the coworker and the roommate, both of whom volunteered DNA samples which the investigators then compared with the samples taken from defendant's body. The results of the DNA test conclusively showed that it could not have been the roommate who had sexual contact with defendant, but rather that it was the coworker.

¶3 Upon learning this, two prosecutors, an investigator from the prosecutor's office, and a police detective decided to interview defendant. Defendant was experiencing car trouble, so they visited her at home. They brought a video camera to record the interview and set defendant up on a folding chair in the camera's frame. Out of the frame sat defendant's mother, other female friends and family, the prosecutors, and the investigators.

¶4 On the video recording, the police detective informed defendant that the DNA proved that it was the coworker, not the roommate, who had sexual contact with her, contrary to what she said had happened. Defendant became visibly upset and began to cry. The prosecutors informed her that they would have to drop the charges against the man she claimed raped her, and they asked her if there was anything else she would like to tell them. Defendant made statements such as "I don't know what to say," and "I don't understand how that is possible." She stated that she had blacked out a lot of the incident, so her memory was less than clear.

¶5 After several more minutes of discussion, defendant, in tears, told the investigators and prosecutors to leave, and they did.

¶6 Prosecutors charged defendant with two counts of attempting to influence a public servant and one count of false reporting.

¶7 The trial court held a hearing where defendant argued, as is relevant here, that the videotape of the interview should be suppressed, and that the case should be dismissed because the government's conduct was outrageous. Defendant had also subpoenaed one of the prosecutors who was present for the interview to testify at the hearing, which the trial court allowed, denying the prosecution's motion to quash the subpoena. During the hearing, the prosecutor, invoking the work product privilege, objected to evidence that might have shed light on the decision-making process that led the district attorney's office to the decisions to interview and file charges against the defendant.

¶8 In an oral ruling, the trial court dismissed the case based on a finding of outrageous government conduct. It did not rule on the request to suppress the videotape.

II. Analysis

¶9 The People assert on appeal that the trial court erred in concluding that there was outrageous government conduct warranting dismissal of the charges against defendant. We agree.

¶10 Trial courts determine whether there has been outrageous government conduct by "reviewing the totality of the facts in a given case." People v. McDowell , 219 P.3d 332, 336 (Colo. App. 2009). We review a trial court's dismissal of a case based on a finding of outrageous government conduct for an abuse of discretion. Id. A trial court abuses it discretion when its ruling is manifestly arbitrary or unreasonable. People v. Medina , 51 P.3d 1006, 1011 (Colo. App. 2001), aff'd sub nom. Mata-Medina v. People , 71 P.3d 973 (Colo. 2003). It is an abuse of discretion if the court misinterprets or misapplies the law. People v. Douglas , 2016 COA 59, ¶ 54, 411 P.3d 1026.

¶11 However, we note that outrageous government conduct has always been recognized as a violation of due process. See Bailey v. People , 630 P.2d 1062, 1068 (Colo. 1981) ; McDowell , 219 P.3d at 336 ; Medina , 51 P.3d at 1011. We review due process violations de novo. See, e.g. , Quintano v. People , 105 P.3d 585, 592 (Colo. 2005) ; People in Interest of C.J. , 2017 COA 157, ¶ 25, 410 P.3d 839. We need not resolve this conflict because we conclude the trial court abused its discretion.

¶12 "Outrageous governmental conduct is conduct that violates fundamental fairness and is shocking to the universal sense of justice." Medina , 51 P.3d at 1011. Instances where trial courts have found outrageous government conduct in Colorado are vanishingly rare, and the threshold for such a finding appears to be exceedingly high. In fact, we found only one such case where a Colorado appellate court upheld a finding of outrageous government conduct. People v. Auld , 815 P.2d 956, 959 (Colo. App. 1991) (upholding the dismissal of charges based on a finding of outrageous government conduct because the prosecution filed fake charges against an undercover agent and therefore "dup[ed the] court into becoming an accomplice" to their nefarious actions).

¶13 We understand the trial court's ruling to be based on (1) the fact that the interview was videotaped; (2) the fact that the prosecutors repeatedly used the work product privilege to block any evidence showing why they chose to videotape the interview or to explain their decision-making process in filing the charges; and (3) a violation of the Victim Rights Act, sections 24-4.1-301 to - 305, C.R.S. 2018. The court's oral ruling is sparse, and it cites no legal authority for support. We conclude that the trial court's findings of fact do not support its conclusion that the government's conduct was outrageous.

¶14 First, the trial court did not cite authority or explain why videotaping the interview with defendant was improper other than the judge's personal experience and his conclusion, without evidentiary support, that this was an extraordinary and unprecedented action by the police and the prosecutors. However, given the state's authority to investigate suspected criminal conduct, we fail to see how this fact alone can constitute outrageous conduct. See Medina , 51 P.3d at 1012.

¶15 Second, the prosecution's persistent, but largely proper, use of the work product privilege cannot form a basis for a finding of outrageous governmental conduct no matter how frustrating it may have been to the trial court. The trial court could and did use the lack of evidence caused by the objections to find that the state's sole purpose in videotaping the interview was to collect evidence against the defendant. But, as the trial court recognized, the objections were largely proper, and again we fail to see how making a proper objection to questions can constitute outrageous conduct.

¶16 Third, the trial court found a violation of the Victim Rights Act without identifying the specific section violated. We presume the finding relates to section 24-4.1-302.5(1)(a), C.R.S. 2018, which states that victims have "[t]he right to be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process." However, the videotape shows that during the interview the defendant was treated with respect and was not harassed or abused. The large police presence might have been intimidating, but that was mitigated by the respectful treatment and the interview taking place in the defendant's home with her family and friends present. In any event, under the circumstances shown by this record, this was at most a procedural violation that cannot support a finding of outrageous conduct. See McDowell , 219 P.3d at 336 (intentionally withholding Miranda warnings to obtain statements and then giving the warnings and repeating the questions did not constitute outrageous conduct); Medina , 51 P.3d at 1012 (egregious violations of a defendant's Fifth Amendment rights did not constitute outrageous conduct).

¶17 Finally, even considered together, these circumstances cannot be fairly said to "violate[ ] fundamental fairness" or to be "shocking to the universal sense of justice." Medina , 51 P.3d at 1011. Because the trial court's findings of fact are not supported by the record, we conclude they were arbitrary and thus an abuse of discretion.

¶18 At the heart of our decision is our conclusion that while the government's behavior might be considered poor judgment or even legal error, the conduct did not rise to the level of outrageous governmental conduct.

¶19 Therefore, we reverse the district court's order dismissing the case and remand with directions to reinstate the charges and to consider the motions still pending before it, including whether the interview should be suppressed because the totality of the circumstances surrounding it constituted psychological coercion.

JUDGE HAWTHORNE concurs.

JUDGE TOW specially concurs.

JUDGE TOW, specially concurring.

¶20 I agree with my colleagues that the district court here abused its discretion in finding that the government's conduct in this case violated defendant's due process rights, and thus erred in dismissing the charges. However, I write separately to urge the Colorado Supreme Court to revisit the standard of review in such cases.

¶21 The Colorado Supreme Court first acknowledged the concept of outrageous government conduct in People v. Vandiver , 191 Colo. 263, 552 P.2d 6 (1976). There, in addressing the defense of entrapment, the court observed that "[a]bsent outrageous conduct by the officers violating fundamental standards of due process, the focus remains on the defendant." Id. at 268, 552 P.2d at 9. Five years later, the supreme court went a bit further and appeared to accept at least the possibility that outrageous government conduct may be a defense to a criminal prosecution in certain circumstances. See Bailey v. People , 630 P.2d 1062, 1068 (Colo. 1981) (noting the consistency between the above-quoted statement in Vandiver and Justice Powell's concurring opinion in Hampton v. United States , 425 U.S. 484, 495, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), "in which he refused to join the plurality in declaring that 'no matter what the circumstances, neither due process principles nor our supervisory power could support a bar to conviction in any case where the Government is able to prove predisposition' ").

¶22 In People in Interest of M.N. , 761 P.2d 1124 (Colo. 1988), the supreme court reviewed a trial court's application of this defense. In M.N. , the trial court had dismissed three juvenile delinquency petitions after finding that an undercover police officer had induced the minors to commit the charged crimes, and that the officer's actions constituted outrageous government conduct that deprived the juvenile of due process. Id. at 1127. A plurality of the supreme court said that "[t]he question whether circumstances are demonstrated which would bar prosecution under due process principles is for the court." Id. at 1129 (quoting United States v. Szycher , 585 F.2d 443, 445 (10th Cir. 1978) ). The plurality continued, "[t]he district court was therefore acting within its discretion when it ruled on the outrageous governmental conduct issue." Id. Noting that it was "clear that the district court erred in holding that the testimony at the hearing established that the defendant had made a showing of outrageous governmental conduct," the plurality held "that the district court's holding as a matter of the law that the charges must be dismissed as a result of due process violations arising from outrageous governmental conduct was erroneous and constituted an abuse of discretion." Id. at 1129-30.

¶23 Divisions of this court have applied the abuse of discretion standard announced in M.N. See People v. McDowell , 219 P.3d 332, 336 (Colo. App. 2009) ; People v. Medina , 51 P.3d 1006, 1011 (Colo. App. 2001), aff'd sub nom. Mata-Medina v. People , 71 P.3d 973 (Colo. 2003).

¶24 I believe the language in M.N. establishing the standard of review as an abuse of discretion was not supported by the authority on which it relied and was (and remains) inconsistent with the standard of review of due process claims in every other context.

¶25 First, upon close analysis, it is not even clear whether the court in M.N. actually reviewed the matter for an abuse of discretion. The court did not recite what test is applied to determine whether a trial court abuses its discretion. Rather, it quickly concluded that the trial court had erred, without applying any particular test.

¶26 Moreover, even if the review conducted in M.N. was for an abuse of discretion, there is no clear explanation as to why such review would be applicable. In fact, the invocation and application of abuse of discretion review was not supported by citation to Szycher , or any other case. The court in M.N. correctly quoted the Tenth Circuit's decision in Szycher , which held that the question whether due process was violated was "for the court." 761 P.2d at 1129 (quoting Szycher , 585 F.2d at 445 ). But the context of that statement in the federal case is informative.

¶27 There, the outrageous government conduct claim was closely intertwined with an entrapment defense. Szycher , 585 F.2d at 445. The jury had been permitted to consider (and had rejected) the entrapment defense, while the court had ruled on the outrageous government conduct claim. The Tenth Circuit panel opined that "the trial judge was correct in deciding this issue himself. The question whether circumstances are demonstrated which would bar prosecution under due process principles is for the court." Id . In other words, the Tenth Circuit was addressing whether the trial court appropriately removed consideration of this particular defense from the jury's purview, not whether the decision by the trial court was a discretionary one.

¶28 Nor does abuse of discretion review necessarily flow from the mere premise that the question is one "for the court." The characterization of an issue as one "for the court" rather than "for the jury" generally means it is not a factual but rather a legal determination. An appellate court generally reviews a trial court's legal conclusions de novo. See, e.g. , Westin Operator, LLC v. Groh , 2015 CO 25, ¶¶ 18-19, 347 P.3d 606 (reviewing de novo a trial court's ruling granting summary judgment on the legal question of whether there was a duty);

Peper v. St. Mary's Hosp. & Med. Ctr. , 207 P.3d 881, 888 (Colo. App. 2008) (observing that immunity "is a question of law for the court to decide" and applying de novo review) (citation omitted); Boulder Plaza Residential, LLC v. Summit Flooring, LLC , 198 P.3d 1217, 1220 (Colo. App. 2008) (applying de novo review to the construction of a contract, which "is a question of law for the court"); Bd. of Cty. Comm'rs v. City of Aurora , 62 P.3d 1049, 1053 (Colo. App. 2002) (noting that interpretation of the Municipal Annexation Act "is a question of law for the court to decide, and our review is therefore de novo").

¶29 Indeed, had the supreme court looked to the federal courts for guidance on the standard of review, it would not have found any support for applying an abuse of discretion review. I could find no cases that had been decided when M.N. was announced applying an abuse of discretion review; to the contrary, those cases that had stated a standard of review had reviewed the matter de novo. See, e.g. , United States v. Citro , 842 F.2d 1149, 1152 (9th Cir. 1988) ; United States v. Valona , 834 F.2d 1334, 1343 (7th Cir. 1987).

¶30 In the intervening years, the Tenth Circuit has clearly said that outrageous government conduct claims are reviewed de novo. United States v. Pedraza , 27 F.3d 1515, 1521 (10th Cir. 1994). In doing so, the trial court's factual findings are reviewed under the clearly erroneous standard. United States v. McKissick , 204 F.3d 1282, 1295 (10th Cir. 2000). In other words, these rulings are reviewed as mixed questions of law and fact.

¶31 As for state courts, none aside from the Colorado Supreme Court has clearly established abuse of discretion as the standard of review in this area. Indeed, the California Court of Appeals is the only other state court that employs abuse of discretion review in this area, and that judicial body has a split of authority on the point. Compare People v. Uribe , 199 Cal.App.4th 836, 132 Cal.Rptr.3d 102, 120-21 (2011) (reviewing de novo), with People v. Velasco-Palacios , 235 Cal.App.4th 439, 185 Cal.Rptr.3d 286, 290 (2015) (reviewing for an abuse of discretion). Of the other states that have considered the issue, many take the same approach as the federal courts, reviewing it as a mixed question of law and fact. See State v. Williamson , 236 Ariz. 550, 343 P.3d 1, 6 (Ariz. Ct. App. 2015) ; State v. Simmons , 364 S.W.3d 741, 745 (Mo. Ct. App. 2012) ; State v. Laurence , 848 A.2d 238, 250 (R.I. 2004) ; State v. Valentine , 132 Wash.2d 1, 935 P.2d 1294, 1305 (1997) ; State v. Houston , 197 W.Va. 215, 475 S.E.2d 307, 321 (1996). Other states have held that the ultimate question of whether government conduct violated a defendant's right to due process is reviewed de novo, without mention of any deferential review of the trial court's factual findings. See Todd v. State , 2012 Ark. App. 626, 425 S.W.3d 25, 32 (2012) ; State v. Nelson , 249 Kan. 689, 822 P.2d 53, 56 (1991) ; State v. Fitzpatrick , 367 Mont. 385, 291 P.3d 1106, 1109 (2012) ; State v. Hoverson , 710 N.W.2d 890, 895 (N.D. 2006) ; State v. Hudson , 2012 WI App 118, ¶ 8, 344 Wis.2d 518, 822 N.W.2d 736.

¶32 Even within Colorado, abuse of discretion review is generally not the applicable standard in areas of constitutional inquiry. Rather, Colorado's appellate courts apply the "mixed question of law and fact" in such scenarios. For example, "[w]e defer to a trial court's findings of credibility and historical facts so long as they are supported by the record. But we review de novo the legal determination of whether an individual is in custody for Miranda purposes." People v. Sampson , 2017 CO 100, ¶ 16, 404 P.3d 273 (citation omitted). The same standard is used when reviewing "whether a seizure violated constitutional prohibitions against unreasonable searches and seizures." People v. Funez-Paiagua , 2012 CO 37, ¶ 6, 276 P.3d 576. And the "mixed question of law and fact" review standard has been applied in a different due process context. Bernal v. People , 44 P.3d 184, 206-07 (Colo. 2002) (reviewing whether a pretrial identification procedure violated the defendant's right to due process by creating a very substantial likelihood of misidentification).

¶33 In still other due process contexts, our appellate courts have reviewed de novo whether a defendant's right to due process was violated. In Quintano v. People , the supreme court reviewed de novo whether the defendant's due process rights were denied when the prosecution failed to elect the particular act on which it relied for conviction. 105 P.3d 585, 592-93 (Colo. 2005). In People v.Calderon , a division of this court reviewed de novo a claim that the defendant's due process rights were violated when his probation was revoked without his having received notice of the probation conditions. 2014 COA 144, ¶ 23, 356 P.3d 993. And in People v. Nave , another division of this court applied de novo review to the question whether the defendant's due process rights were violated as a result of lost or destroyed evidence. 689 P.2d 645, 647 (Colo. App. 1984).

¶34 The due process claims in Quintano , Calderon , and Nave generally are not the type of claims that will present significant factual disputes. Thus, a pure de novo analysis makes sense in those circumstances. However, a claim of outrageous government conduct will necessarily involve factual findings by the trial court. Indeed, the plurality in M.N. observed that such a claim must "be tested by an appraisal of the totality of facts in a given case." 761 P.2d at 1129 (quoting United States v. Spivey , 508 F.2d 146, 149 n.2 (10th Cir. 1975) ). Consequently, in my view, the appropriate standard of review of outrageous government conduct claims is to defer to the trial court's factual findings unless clearly erroneous, and then review de novo the ultimate conclusion as to whether the defendant's right to due process was violated.

¶35 I do not deny that often, as here, one can reach the same result after reviewing for an abuse of discretion. Nevertheless, applying such a deferential standard of review to an issue of constitutional magnitude is an extreme outlier. This anomaly engenders confusion and risks creating inconsistencies and disparities in our due process jurisprudence. For these reasons, I urge the supreme court to look anew at this important question.

      Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2018.


author: HORTON, Justice.

text:
    STATE of Idaho, Plaintiff-Respondent, v. Augustine Garnica PEREZ, Jr., Defendant-Appellant.
    Docket No. 45351
    Supreme Court of Idaho, Boise, December 2018 Term.
    Opinion filed: February 8, 2019
    Eric Don Fredericksen, State Appellate Public Defender, Boise, for Appellant. Kim A. Coster argued.
    Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Kenneth K. Jorgensen argued.
   HORTON, Justice.

Augustine Garnica Perez Jr. appeals from his judgment of conviction for felony DUI. He challenges the district court's decision denying his motion to suppress evidence gathered as a result of an investigatory stop. Specifically, he argues that the district court erred in concluding that information provided by a citizen during a call to dispatch was sufficient to create the reasonable, articulable suspicion necessary to justify the stop. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from the district court's denial of Perez's motion to suppress evidence gathered during an investigatory stop that led to his conviction for felony DUI. The basis for the stop was a call made to dispatch by an identified citizen. During the day that the dispatch call was made, an Indian Highway Safety Officer, Officer Henry, had driven through a neighborhood in the Old Fort Hall housing complex and noticed a white, two-door Mercedes parked on a street named Wardance Circle. He noted the vehicle because Mercedes vehicles were rare in that area and he had never seen a white Mercedes in that neighborhood in his three years as a highway safety officer.

Later, around 10:30 that evening, a woman who lived on Wardance Circle called dispatch and described a white Mercedes with a driver who seemingly "didn't know how to drive it, 'cause it kept trying to go in drive, and then it couldn't, but like it's a standard or something." She said that once the driver was able to get the car moving, it pulled into a driveway and almost hit the back of a parked car. The driver then drove out of Wardance circle, "turned east, and went toward the bingo hall." When asked how long ago the driver had left, the caller said "[n]ot even five minutes ago." She also stated that the driver had been slamming on the car's brakes earlier in the day and "roaring around," and that the car was recently "roaring its motor, like it wanted to race."

The caller noted that she had seen an officer earlier in the day and told him that "a native guy" was driving the car, that he was "driving really recklessly," and that she was concerned that he might drive up on the sidewalk and hit neighborhood children.

Officer Henry was dispatched to investigate the call. Officer Henry testified that he first went to Wardance Circle where he had seen the white Mercedes earlier in the day and that it was no longer there. He then drove to the nearby casino, gas station, trading post, and then to the two main roads looking for the vehicle. As he was driving on one of the main roads, he came upon a white, two-door Mercedes traveling in the opposite direction. He estimated that it took him three to four minutes after receiving the call from dispatch to arrive at Wardance Circle and that from there he drove for "five, ten minutes" before he came upon the white Mercedes driving on the main road. In total, approximately ten to fifteen minutes passed between the time of the call to dispatch and the time that Officer Henry stopped the Mercedes.

Officer Henry stated that he did not observe any violations of the law or erratic driving while following the vehicle; however, he only followed it for less than a minute before he initiated the stop. When he contacted the driver-Perez-he immediately noticed the smell of alcohol and called an Idaho State Police officer to investigate for DUI. The ISP officer administered field sobriety tests and then arrested Perez. Perez was subsequently charged with felony DUI, driving without a license, and failing to carry insurance, with a persistent-violator enhancement to the felony charge.

Perez moved to suppress the evidence resulting from the stop, arguing that the stop violated his constitutional rights because Officer Henry did not have reasonable, articulable suspicion that he had violated any traffic laws. The district court denied Perez's motion to suppress in a ruling from the bench. The district court held that the conduct reported by the caller created reasonable suspicion that the crime of reckless driving had been committed and the caller's description of the vehicle provided reasonable suspicion for Officer Henry to stop the white Mercedes that Perez was driving.

Perez then entered a conditional plea, reserving the right to appeal the denial of his motion to suppress. Thereafter, he timely appealed.

II. STANDARD OF REVIEW

In reviewing a district court order granting or denying a motion to suppress evidence, the standard of review is bifurcated. This Court will accept the trial court's findings of fact unless they are clearly erroneous. However, this Court may freely review the trial court's application of constitutional principles in light of the facts found.

State v. Jaskowski , 163 Idaho 257, 259, 409 P.3d 837, 839 (2018) (quoting State v. Purdum , 147 Idaho 206, 207, 207 P.3d 182, 183 (2009) (citations omitted) ). Thus, "[d]eterminations of reasonable suspicion are reviewed de novo," while findings of fact that support a determination of reasonable suspicion are reviewed for clear error. State v. Morgan , 154 Idaho 109, 111, 294 P.3d 1121, 1123 (2013).

III. ANALYSIS

Perez argues that the investigatory stop violated his constitutional right to be free from unreasonable searches and seizures because the call to dispatch did not provide the officer with reasonable suspicion to justify the stop of his vehicle.

"The Fourth Amendment's reasonableness requirement has been held to apply to brief investigatory detentions." State v. Bishop , 146 Idaho 804, 811, 203 P.3d 1203, 1210 (2009) (citing Terry v. Ohio , 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). Under the Fourth Amendment, "limited investigatory detentions, based on less than probable cause, are permissible when justified by an officer's reasonable articulable suspicion that a person has committed, or is about to commit, a crime." Id ."Reasonable suspicion must be based on specific, articulable facts and the rational inferences that can be drawn from those facts." Id. "Although it must be more than a mere hunch, the level of suspicion required to create a reasonable suspicion is less than is necessary for probable cause and considerably less than proof by a preponderance of the evidence." State v. Russo , 157 Idaho 299, 305, 336 P.3d 232, 238 (2014). Further, while conduct might be explained by another cause, the Supreme Court of the United States has "consistently recognized that reasonable suspicion 'need not rule out the possibility of innocent conduct.' " Navarette v. California , 572 U.S. 393, 403, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014) (quoting United States v. Arvizu , 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) ). Finally, "[w]hether an officer possessed reasonable suspicion is evaluated based on the totality of the circumstances known to the officer at or before the time of the stop." Bishop , 146 Idaho at 811, 203 P.3d at 1210.

1. The call to dispatch supported Officer Henry's reasonable suspicion that the driver committed the crime of reckless driving.

Perez argues that the only act that could have led to reasonable suspicion that the driver was driving recklessly occurred on private property and therefore does not fall within the reckless driving statute ( Idaho Code section 49-1401(1) ). We hold that the district court did not err in finding that Officer Henry had reasonable suspicion that the driver committed the crime of reckless driving as defined by Idaho Code section 49-1401(1).

Pursuant to Idaho Code section 49-1401(1) :

Any person who drives or is in actual physical control of any vehicle upon a highway, or upon public or private property open to public use, carelessly and heedlessly or without due caution and circumspection, and at a speed or in a manner as to endanger or be likely to endanger any person or property, or who passes when there is a line in his lane indicating a sight distance restriction, shall be guilty of reckless driving ....

According to the statute, a person may be guilty of reckless driving if his conduct on a public road endangers or is likely to endanger persons or property. The plain language of the statute does not limit the location of the persons or property that are potentially at risk to those on public property-instead, it includes driving "at a speed or in a manner as to endanger or be likely to endanger any person or property ...." Idaho Code section 49-1401(1) (emphasis added). Thus, although the danger or likely danger to persons or property must originate with the driver's conduct on public property or private property open to public use, the statute does not preclude a determination of reckless driving where the driver's conduct on public property endangers people or property located exclusively on private property.

In this case, Perez asserts that the act that led the district court to conclude that reckless driving may have occurred took place solely on private property and therefore does not qualify under the statute. Although the facts of this case do not indicate the manner in which Perez was driving immediately before entering the private driveway, driving into another's driveway from a public roadway and almost hitting a car could indicate reckless driving on the public road. See Navarette , 572 U.S. at 403, 134 S.Ct. 1683 (quoting Arvizu , 534 U.S. at 277, 122 S.Ct. 744 ) ("reasonable suspicion 'need not rule out the possibility of innocent conduct.' "). As a result, even if this was an isolated incident and possibly caused by innocent conduct, it provided reasonable suspicion to stop Perez and investigate whether he committed the crime of reckless driving.

Further, the caller described other behavior that could lend itself to reasonable suspicion that reckless driving occurred. See Bishop , 146 Idaho at 811, 203 P.3d at 1210 ("Whether an officer possessed reasonable suspicion is evaluated based on the totality of the circumstances...."). Contrary to Perez's assertion, the caller did not describe an isolated incident of driving onto a private driveway. She asserted to dispatch that earlier in the day, the driver was "roaring around," slamming on his brakes, "driving really recklessly," and that she was afraid that he would drive up onto the sidewalk and injure a neighborhood child. This description of behavior earlier in the day, in addition to the description of the driver almost hitting the car in the private driveway that evening, provided specific, articulable facts, and a rational inference therefrom is that the crime of reckless driving may have been committed.

Thus, we find that the call to dispatch provided the reasonable suspicion necessary to investigate whether the crime of reckless driving occurred.

2. The officer had reasonable suspicion that the vehicle Perez was driving was the same vehicle involved in the suspected reckless driving.

Perez argues that Officer Henry stopped him based solely on the make and color of his vehicle and that those characteristics were not sufficient to create reasonable suspicion that he committed the crime of reckless driving.

Perez compares this case to State v. Zapata-Reyes in which the Court of Appeals stated:

[T]he caller here described a car of a common color-white-and provided no other significant distinguishing features. The description was therefore not of a vehicle that was easily distinguishable from other vehicles. No evidence was presented to show whether the Oldsmobile that Zapata-Reyes occupied bore a resemblance to any Corsicas or Buicks. Moreover ... the caller indicated that there were three or four occupants in the vehicle that passed by his residence, not two occupants as in the Oldsmobile the officer followed and subsequently observed Zapata-Reyes exit from.

144 Idaho 703, 708-09, 169 P.3d 291, 296-97 (Ct. App. 2007).

This case is distinguishable from Zapata-Reyes . Here, Officer Henry testified that he had seen a white, two-door Mercedes on Wardance Circle earlier that day and that he took note of it because he had never seen a white Mercedes in that area in his three years as a highway safety officer. He also testified that the call to dispatch described a white, two door Mercedes on Wardance Circle. Although he was mistaken to the extent that the caller did not actually describe the amount of doors on the car, a reasonable inference from these facts is that the white Mercedes that was the subject of the citizen report was the same Mercedes that Officer Henry had seen earlier in the day parked on the same road. Further, while the caller did not describe the number of occupants in the car, her description of a man driving the car is consistent with the lone male occupant-Perez-in the car when it was stopped. Perez does not contend that he did not match the caller's description of "a native guy" driving the vehicle.

Officer Henry also testified that he first went to Wardance Circle where he had previously observed the white Mercedes and that it was no longer there. He then traveled in the direction that the caller indicated the vehicle had gone and came upon the vehicle driven by Perez.

Although Perez notes that Officer Henry did not observe any other criminal behavior or erratic driving once he saw Perez's vehicle, "the absence of additional suspicious conduct, after the vehicle was first spotted by an officer [does not] dispel the reasonable suspicion ...." Navarette , 572 U.S. at 403, 134 S.Ct. 1683. Indeed, "[i]t is hardly surprising that the appearance of a marked police car would inspire more careful driving for a time." Id. Further, Officer Henry only drove behind Perez for less than a minute before pulling him over.

The district court correctly held that the totality of the circumstances provided reasonable suspicion that the white, two-door Mercedes driven by Perez was the same vehicle that was the subject of the citizen's report to dispatch for reckless driving on Wardance Circle. Thus, the district court did not err by denying Perez's motion to suppress the evidence gathered as a result of the stop.

IV. CONCLUSION

We affirm the judgment of the district court.

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

      Although Wardance Circle is on a reservation, the motor vehicle laws of the State of Idaho apply in this case pursuant to Idaho Code section 67-5101G.

      Perez did not contest the reliability of the identified citizen-informant on appeal.


text:
    In the MATTER OF the ESTATE OF: Ruth BIRCH, Deceased.
    Linda Bailey, Personal Representative, Petitioner-Respondent, v. Bruce H. Birch, Respondent-Appellant.
    Docket No. 45451
    Supreme Court of Idaho, Boise, November 2018 Term.
    Opinion filed: February 8, 2019
    Birch Law Office, Payette, for Appellant. Michael D. Moscrip argued.
    Smith, Driscoll & Associates, PLLC, Idaho Falls, for Respondent. B.J. Driscoll argued.
   HORTON, Justice.

Bruce Birch appeals the decision of the district court affirming a decision of the magistrate court to award attorney fees against Birch. The magistrate court awarded attorney fees to Linda Bailey, the personal representative of the estate of Ruth Birch. In this appeal, Birch argues that the magistrate court's award of attorney fees was an abuse of discretion because it did not comply with the requirements of the Idaho Rules of Civil Procedure. We reverse the decision of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case concerns the disposition of the estate of Birch and Bailey's mother, Ruth Birch. Ruth executed a last will and testament that intentionally omitted Birch. After Ruth's death in 2011, Bailey was appointed as the personal representative for her estate. In 2012, the magistrate court approved a compromise agreement that allowed Birch and another intentionally omitted sibling to receive equal shares of the estate.

After approval of the compromise agreement, Bailey requested that Birch pay the estate's attorney fees for preparing the agreement. Birch objected, filed a motion to remove Bailey as the personal representative, and filed several other motions. On August 18, 2016, the magistrate court granted Bailey's request for attorney fees against Birch on equitable grounds "[i]n light of the multiple unsuccessful attempts by [Birch] in his repeated challenges...." This first award of attorney fees in the amount of $ 10,314.50 was assessed against Birch's interest in the estate. On March 23, 2017, the magistrate court entered a supplemental order in which it acknowledged that it did not have the equitable power to assess fees, and instead cited Idaho Code section 15-3-720 as the basis for the award of fees.

In September 2016, Bailey filed a memorandum of attorney fees and costs claiming entitlement to a second award of attorney fees and costs against Birch in the sum of $ 10,665.85. Birch did not object to this memorandum. On October 20, 2016, the magistrate court entered the Estate Closing Order and Decree of Distribution (the Closing Order) which awarded the requested fees and costs. The Closing Order approved an attached Schedule of Final Distributions. Although styled as a schedule of "distributions," the schedule required Birch to pay $ 8,621.96 in attorney fees and costs in equal payments of $ 4,310.98 to his sisters, Bailey and Cheryl Simmons. The Closing Order does not identify a prevailing party, nor does it identify a statutory or contractual basis for the award of fees. The Closing Order contains no written findings regarding the merit of Birch's challenges and is silent as to whether the magistrate court considered the Idaho Rule of Civil Procedure 54(e)(3) factors when awarding attorney fees.

On appeal to the district court, Birch challenged both awards of attorney fees. As to the first award, the district court held that the magistrate court did not have the equitable power to assess the fees against Birch and the statutory ground subsequently identified by the magistrate court was not applicable. Therefore, the district court reversed the magistrate court's first award of attorney fees. Neither party challenges this decision.

As to the second award, the district court ruled that Birch had waived any challenge to the second award of attorney fees by failing to object to Bailey's memorandum of costs and fees within fourteen days as required by Idaho Rule of Civil Procedure 54(d)(5). Birch timely appealed.

II. STANDARD OF REVIEW

When this Court reviews the decision of a district court sitting in its capacity as an appellate court, the standard of review is as follows: "The Supreme Court reviews the trial court (magistrate) record to determine whether there is substantial and competent evidence to support the magistrate's findings of fact and whether the magistrate's conclusions of law follow from those findings. If those findings are so supported and the conclusions follow therefrom and if the district court affirmed the magistrate's decision, we affirm the district court's decision as a matter of procedure."

Bailey v. Bailey , 153 Idaho 526, 529, 284 P.3d 970, 973 (2012) (quoting Losser v. Bradstreet , 145 Idaho 670, 672, 183 P.3d 758, 760 (2008) ).

"The awarding of attorney fees and costs is within the discretion of the trial court and subject to review for an abuse of discretion." Smith v. Mitton , 140 Idaho 893, 897, 104 P.3d 367, 371 (2004).

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) (citing Hull v. Giesler , 163 Idaho 247, 250, 409 P.3d 827, 830 (2018) ).

III. ANALYSIS

The primary issue presented by this appeal is whether the district court correctly affirmed the magistrate court's second award of attorney fees. In deciding this question, we consider only if the action of the magistrate court was consistent with applicable legal standards.

A. The district court incorrectly affirmed the magistrate court's second award of attorney fees.

Birch argues that the district court erred in affirming the magistrate court's decision regarding attorney fees because the magistrate court never actually awarded attorney fees as required by Idaho Rule of Civil Procedure 54(e). Bailey responds that the magistrate's decision was not an abuse of discretion because grounds for the award existed under Idaho Code section 12-121. The district court affirmed the magistrate court's second award on the theory that "[Birch] did not timely object to the memorandum of costs by filing a motion to disallow all or part of the fees and has thus waived his objection to those costs."

It is true that "[f]ailure to timely object to the items in the memorandum of costs constitutes a waiver of all objections to the costs claimed"-including attorney fees. I.R.C.P. 54(d)(5) ; I.R.C.P. 54(e)(6). However, the memorandum of attorney fees and costs was filed without a motion and before entry of the Closing Order. While the rules permit a party to file an early memorandum of costs, such memoranda are premature until "any time after the verdict of a jury or a decision of the court...." I.R.C.P. 54(d)(4). The record contains no sign that the magistrate court had ordered the second attorney fee award to Bailey before either the memorandum or the Closing Order was filed. On appeal to the district court, Birch presented the same argument that he raises to this Court: he cannot have waived his objection to the attorney fees because the magistrate court never actually ordered an award-giving him no meaningful opportunity to object. At the hearing before the district court, Birch explained:

So if I am bound on it to pay [the second award], how was it requested? It was not. No hearing was held. The Court didn't order it.... There has to be a motion. There has to be an opportunity to object. The basis has to be stated. What was the legal basis for [the second award]? Well, I don't know. Because nothing is in the record. There is no record whatsoever that I was given advance notice of the basis of that request and an opportunity to object.

In our view, this case mirrors a situation already considered by this Court in In re Guardianship of Doe , 157 Idaho 750, 339 P.3d 1154 (2014). There, the magistrate court denied a mother's petition to terminate a guardianship and summarily decided sua sponte that "the parties shall bear their own attorney's fees and costs." Id. at 757, 339 P.3d at 1161. When considering whether the appellant had waived this issue, the Court stated:

In its order denying Mother's motion, the magistrate court wrote that "the parties shall bear their own attorney's fees and costs." Guardians argued to the district court that the magistrate court erred by summarily denying attorney fees. The district court held that the issue was improperly raised for the first time on appeal because they did not seek attorney fees before the magistrate, file any objection to the denial, or file a motion to reconsider it. In so ruling, the district court erred.
In its order, the magistrate court sua sponte ruled "that the parties shall bear their own attorney's fees and costs." Prior to the issuance of the court's order, neither party could have known what the court's ruling would be and would have no basis for claiming to be the prevailing party. Once the court ruled, Guardians did not have to file a memorandum of costs or object in order to preserve the issue for appeal. Oakes v. Boise Heart Clinic Physicians, PLLC , 152 Idaho 540, 544, 272 P.3d 512, 516 (2012). Likewise, Guardians did not have to file a motion for reconsideration in order to preserve the issue on appeal. Parkside Sch., Inc. v. Bronco Elite Arts & Athletics, LLC , 145 Idaho 176, 179, 177 P.3d 390, 393 (2008). Therefore, the district court erred in failing to vacate the magistrate court's sua sponte ruling that neither party was entitled to an award of court costs or attorney fees.

Id . at 757-58, 339 P.3d at 1161-62. Essentially the Guardians had not waived consideration of the attorney fees issue because the magistrate court had not properly acted on the issue and presented them with a meaningful opportunity to object. This is the precise situation presented by this appeal. As we have held: "the [trial] judge cannot award fees ... without providing the nonmoving party with an opportunity to raise relevant facts and legal principles in its defense." Bingham v. Montane Res. Assocs. , 133 Idaho 420, 424, 987 P.2d 1035, 1039 (1999). By affirming on this basis, the district court erred.

We take this opportunity to emphasize that our decision today is the result of a situation where a premature memorandum of costs was filed prior to entry of a decision by the magistrate court that would entitle Bailey to an award of costs. The right to file a memorandum of costs is triggered by a jury verdict or decision of the court. Rule 54(d)(4) states in relevant part:

At any time after the verdict of a jury or a decision of the court, but not later than 14 days after entry of judgment, any party who claims costs may file and serve on adverse parties a memorandum of costs, itemizing each claimed expense.

I.R.C.P. 54(d)(4). A motion for costs is not required under this rule. In fact, it is incumbent upon the party objecting to an award of costs to file a motion to disallow the costs. Rule 54(d)(5) states in part: "Within 14 days of service of a memorandum of costs, any party may object by filing and serving a motion to disallow part or all of the costs." I.R.C.P. 54(d)(5) (emphasis added).

In this case, there was no jury verdict or decision of the court that triggered the right to file the memorandum of costs. Instead, Bailey sought the additional attorney's fees (which are considered costs under Rule 54(e)(5) ), not in response to a verdict or decision signaling victory on the part of the estate, but really as a continuation of the estate's first request that Birch's share of the estate be taxed with the estate's attorney fees because of "unnecessary" litigation. In this situation, the estate needed to file a motion with the magistrate court-the same type of motion that the district court subsequently ruled was improper and which the estate does not challenge. We further note that the Closing Order does not satisfy the requirements for an award of attorney fees. The Closing Order does not support the second award of attorney fees because it fails to satisfy several of the requirements of Idaho Rule of Civil Procedure 54(e). First, the Closing Order does not designate either party as the prevailing party, though this is a prerequisite to an award of attorney fees under Idaho Code section 12-121. Second, the Closing Order does not identify a statutory or contractual basis for the award of attorney fees. Third, while Bailey posits that the attorney fee award was warranted under Idaho Code section 12-121, the Closing Order does not contain a specific written factual finding to this effect as required by Idaho Rule of Civil Procedure 54(e)(2). Finally, while this Court has never required a trial court to explicitly consider all of the 54(e)(3) factors in determining a reasonable award, this applies when "the record clearly indicates that the court considered them all." Mihalka v. Shepherd , 145 Idaho 547, 553, 181 P.3d 473, 479 (2008) (quoting Parsons v. Mut. of Enumclaw Ins. Co. , 143 Idaho 743, 747, 152 P.3d 614, 618 (2007) ). There is no indication from the Closing Order or the record that the magistrate court considered these factors as required. By affirming an award that did not comport with the requirements of the rules, the district court erred.

B. Neither party is entitled to an award of attorney fees on appeal.

Birch requests attorney fees on appeal pursuant to Idaho Code section 12-121 on the grounds that Bailey has pursued and defended this case without foundation. Bailey also requests attorney fees pursuant to Idaho Code sections 12-121 and 15-8-208. Bailey is not the prevailing party on appeal and is therefore not entitled to an award of attorney fees. Although Birch is the prevailing party on appeal, "[a]n award of attorney fees under Idaho Code section 12-121 is not a matter of right to the prevailing party, but is appropriate only when this Court, in its discretion, is left with the abiding belief that the case was brought, pursued, or defended frivolously, unreasonably, or without foundation." Seward v. Musick Auction, LLC , 164 Idaho 149, 160, 426 P.3d 1249, 1260 (2018). We are not persuaded that Bailey has defended this appeal frivolously and decline to award attorney fees to Birch.

IV. CONCLUSION

We reverse the decision of the district court affirming the decision of the magistrate court and remand for further proceedings consistent with this opinion. Costs on appeal to Birch.

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


text:
    Megan D. KELLER, Claimant-Respondent, v. AMERITEL INNS, INC., dba Hampton Inn and Suites, Employer-Appellant, and Idaho Department of Labor, Respondent.
    Docket No. 45555
    Supreme Court of Idaho, Boise, November 2018 Term.
    Opinion filed: February 8, 2019
    Eberle, Berlin, Kading, Turnbow & McKlveen, Boise, for Appellant. Corey J. Rippee argued.
    Lovotti & Grad, PLLC, Boise, for Respondent, Megan Keller. Alexander K. Grad argued.
    Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent, Idaho Department of Labor. Douglas A. Werth argued.
   HORTON, Justice.

AmeriTel Inns, Inc. (AmeriTel) appeals from a decision of the Idaho Industrial Commission (Commission) granting Megan Keller (Keller) unemployment benefits after her employment with AmeriTel ended in June 2017. AmeriTel asks this Court to adopt a bright line rule that a one-day absence without notice is a voluntary quit under Idaho Code section 72-1366(5). In the event that the Court declines to do so, AmeriTel contends that the Commission's factual findings that rendered Keller eligible for unemployment compensation benefits were not supported by substantial and competent evidence. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from Keller's claim for unemployment benefits following the termination of her employment with AmeriTel in June 2017. Keller began working as a housekeeper for AmeriTel in April 2016. In early 2017, she began to experience extreme nausea and dehydration as a result of pregnancy. Because of these symptoms, Keller frequently missed shifts or reported late to work in the weeks leading up to the termination of her employment.

AmeriTel has a policy that allows for discipline of employees for excessive absences or failure to provide adequate advance notice of tardiness or absence. Although AmeriTel's policy does not define "excessive absences," toward the end of May 2017, Keller's superiors at AmeriTel began to feel that her absences were excessive. As a result, her supervisor, Cody Black, was instructed to present her with a formal write-up when she came in to work on June 2. However, Keller did not report to work that day because she was ill. Black did not reprimand Keller. Instead, he called her that evening and offered to place her on a leave of absence until she was well enough to return to work. Keller agreed to the leave of absence and asked if they could meet the following day when she was at work to discuss further details. However, because Keller did not feel well on June 3, she sent a text message to Black to inform him that she was unable to meet with him that day.

Keller was scheduled to work on June 4 but again she did not feel well. She drafted a text message to Black to notify him that she would be absent; however, the message was never received. Until that day, Keller had always notified AmeriTel if she was going to be absent from work. On June 5, Keller sent a text message to Black to ask if he was available to meet that day to discuss her leave of absence. After receiving Keller's message, Black spoke with AmeriTel's general manager about Keller's absence the previous day. At the general manager's direction, Black informed Keller that because she did not provide notice of her absence on June 4, AmeriTel presumed that she had quit.

Keller applied for unemployment compensation benefits. Her application was initially denied on the basis that she was discharged for employment-related misconduct. Keller appealed that decision and an appeals examiner conducted a hearing to review her eligibility on August 8, 2017. Following the hearing, the appeals examiner issued a decision concluding that Keller was eligible for unemployment benefits because she was discharged and her discharge was not for employment-related misconduct. In August 2017, AmeriTel appealed from that decision. On October 2, 2017, the Commission issued an order affirming the appeals examiner's decision. AmeriTel timely appealed.

II. STANDARD OF REVIEW

The Idaho Constitution constrains this Court's review of Industrial Commission decisions to questions of law. Locker v. How Soel, Inc. , 151 Idaho 696, 699, 263 P.3d 750, 753 (2011) (citing Idaho Const. art. V, § 9 ). Accordingly, "this Court does not 'conduct a de novo review of the evidence or consider whether it would have reached a different conclusion from the evidence presented.' " Serrano v. Four Seasons Framing , 157 Idaho 309, 317, 336 P.3d 242, 250 (2014) (quoting Henderson v. McCain Foods, Inc. , 142 Idaho 559, 565, 130 P.3d 1097, 1103 (2006) ). Instead, where substantial and competent evidence supports the Commission's factual findings, we are constitutionally compelled to affirm the Commission's decision. Barr v. Citicorp Credit Serv., Inc. USA , 161 Idaho 136, 138, 384 P.3d 383, 385 (2016). "Substantial and competent evidence is relevant evidence that a reasonable mind might accept to support a conclusion." Uhl v. Ballard Med. Prods., Inc. , 138 Idaho 653, 657, 67 P.3d 1265, 1269 (2003). "[W]hether the claimant was discharged or voluntarily left her employment, whether a discharge was for misconduct, and whether there was good cause for the claimant to voluntarily leave her employment are factual questions for the Commission." Thrall v. St. Luke's Reg'l Med. Ctr. , 157 Idaho 944, 342 P.3d 656, 659 (2015) (internal citations omitted).

III. ANALYSIS

AmeriTel argues that we should adopt a bright line rule that a one-day absence without notice when an employee has the means and ability to notify an employer is per se a voluntary quit under Idaho Code section 72-1366(5). AmeriTel also argues that substantial and competent evidence does not support the Commission's finding that AmeriTel discharged Keller, but that if Keller was discharged, it was for employment-related misconduct because she disregarded and violated AmeriTel's policy regarding notice of an absence. We address these issues in turn.

A. The determination whether an employee voluntarily quit or was discharged for purposes of Idaho Code section 72-1366(5) is to be determined on a case-by-case basis.

Idaho Code section 72-1366(5) provides that a claimant is eligible for unemployment benefits if "[t]he claimant's unemployment is not due to the fact that he left his employment voluntarily without good cause connected with his employment, or that he was discharged for misconduct in connection with his employment." AmeriTel asks the Court to adopt a bright line rule that a one-day absence without notice when an employee has the means and ability to notify an employer is per se a voluntary quit under Idaho Code section 72-1366(5).

We have previously indicated that whether an employee voluntarily quit or was discharged under Idaho Code section 72-1366(5) is a fact-intensive inquiry to be determined on a case-by-case basis. See Thrall , 157 Idaho at 947-48, 342 P.3d at 659-60. Indeed, we have previously rejected an argument similar to AmeriTel's:

BMC argues that Doran v. Employment Sec. Agency , 75 Idaho 94, 97, 267 P.2d 628, 630 (1954), establishes the rule that an employee who temporarily leaves employment without advising his employer of the reason and who fails to seek a leave of absence and keep his employer informed of his intentions and prospects of return is deemed to have quit the employment without good cause. However, Doran does not establish a bright line rule to that effect.
The test is one of reasonableness under the circumstances.

Clay v. BMC W. Truss Plant , 127 Idaho 501, 503, 903 P.2d 90, 92 (1995). Adopting the bright line rule suggested by AmeriTel would transform this factual analysis into a question of law and conflict with precedent where we have declined to impose a similar rule. "[T]he rule of stare decisis dictates that we follow [controlling precedent] unless it is manifestly wrong, unless it has proven over time to be unjust or unwise, or unless overruling it is necessary to vindicate plain, obvious principles of law and remedy continued injustice." Farm Bureau Mut. Ins. Co. of Idaho v. Cook , 163 Idaho 455, 459-60, 414 P.3d 1194, 1198-99 (2018) (second alteration in original) (quoting Houghland Farms, Inc. v. Johnson , 119 Idaho 72, 77, 803 P.2d 978, 983 (1990) ). AmeriTel has not persuaded us that our current approach to the quit/discharge question meets this rigorous standard. Consequently, we decline to adopt AmeriTel's proposed bright line rule.

B. Substantial and competent evidence supports the Commission's finding that AmeriTel discharged Keller.

AmeriTel argues that Keller voluntarily quit her employment because she "no-called/no-showed" for her shift on June 4. It also argues that the Commission erred by not undertaking a meaningful analysis of whether Keller voluntarily quit and that there is not substantial and competent evidence to support a finding that Keller was discharged. The Commission rather tersely concluded that "the evidence in this case establishes that Employer discharged [Keller]. [Keller] did not quit."

To obtain unemployment benefits, a claimant must not be unemployed "due to the fact that he left his employment voluntarily without good cause connected with his employment, or that he was discharged for misconduct in connection with his employment." I.C. § 72-1366(5). The employee bears the burden of demonstrating by a preponderance of the evidence that she was discharged and did not voluntarily quit. Thrall , 157 Idaho at 944, 342 P.3d at 659. Whether an employee voluntarily quit or was discharged is a question of fact for the Commission. Id. "This Court will not disturb the Commission's factual findings unless they are clearly erroneous." Lopez v. State , 136 Idaho 174, 178, 30 P.3d 952, 956 (2001). "Findings of fact that are supported by substantial and competent evidence are not clearly erroneous...." Hull v. Giesler , 163 Idaho 247, 250, 409 P.3d 827, 830 (2018).

The test for whether an employee was discharged is "whether sufficient words or actions by the employer would logically lead a prudent man to believe his tenure had been terminated." Thrall , 157 Idaho at 944, 342 P.3d at 660 (quoting Jackson v. Minidoka Irrigation Dist. , 98 Idaho 330, 334-35, 563 P.2d 54, 58-59 (1977) ). When Keller attempted to contact her supervisor, Black, on June 5 to discuss her leave of absence, he responded that her absence without notice the previous day was "considered a voluntary quit." Keller replied: "I texted you both days before both of my shifts. And we also discussed putting me on leave on Friday but I still texted you before both shifts...." She also testified before the appeals examiner that she was surprised that AmeriTel said she voluntarily quit because she "wasn't really expecting that," as she had never previously been absent without notice. She also testified that during the discussion with Black on June 2, she told him that she was not sure whether she would be able to work on June 4 due to her pregnancy-related illness. We hold that this evidence constitutes substantial and competent evidence supporting the Commission's determination that Keller was discharged. We next consider whether Keller should nonetheless be deemed to have voluntarily quit because she was absent without notice on June 4.

The standard for whether an absence amounts to a voluntary quit is that "good faith on the part of the employee must always appear," and the employee must "act as a reasonably prudent person would in keeping contact with his employer and in securing the permanence of his employment." Clay , 127 Idaho at 504, 903 P.2d at 93 (quoting Doran , 75 Idaho at 97, 267 P.2d at 630 ). The Commission found that Keller attempted to notify AmeriTel of her absence on June 4 by text message, "but for whatever reason, the message never transmitted." The Commission also found that Keller tried to meet with her supervisor the following day to discuss her leave of absence, at which time she was told that AmeriTel presumed she had quit. Keller's reply to her supervisor indicates that she believed she had notified him of her absence on June 4: "I texted you both days before both of my shifts." This evidence supports the Commission's implicit finding that Keller did not intend to quit and that she acted in good faith in attempting to notify AmeriTel of her absence on June 4.

The critical question then is whether Keller acted as a reasonably prudent person in keeping contact with AmeriTel. As we stated in Clay , "individual circumstances may vary [the] duties" of an employee who is absent from work. 127 Idaho at 504, 903 P.2d at 93. The Commission found that AmeriTel's policy did not specify the means by which an employee may provide notice of an unscheduled absence and that Black previously accepted notice by text message. Consequently, Keller acted reasonably in attempting to notify Black of her absence on June 4 via text message.

The Commission found that Keller was absent from work various times due to her pregnancy-related illness, including all six shifts that she was scheduled to work in the days leading up to June 4; that June 4 was the first time Keller failed to notify AmeriTel of an absence in over a year of employment; and-most significantly-that two days prior to her absence without notice, Keller agreed to go on a leave of absence during which she would retain her employment until she was well enough to return to work. Tellingly, AmeriTel's witness, Black, provided strong evidence that Keller did not quit. Black testified that when he received Keller's message on June 5 asking to meet to discuss the details of her leave of absence, he spoke with the general manager and was instructed to "text her that since she no call, no showed that she broke policy and that she was done."

We hold that these facts constitute substantial and competent evidence that AmeriTel discharged Keller and that she did not voluntarily quit.

C. Substantial and competent evidence supports the Commission's findings that Keller was discharged because of her absences and that she was not discharged for employment-related misconduct.

AmeriTel maintains that if Keller was discharged, it was for misconduct because she disregarded and violated its notice policy when she was absent without notice on June 4, 2017. The Commission found that AmeriTel discharged Keller because of her absences and that she was not discharged for misconduct.

Despite AmeriTel's insistence that it did not discharge Keller because of her absences prior to June 4, the Commission explicitly found that "[t]he specific issue in this case is [Keller]'s attendance." It appears that in finding that Keller was discharged for excessive absences, the Commission implicitly concluded that AmeriTel's stated reason for discharging Keller-failure to provide notice of her absence on June 4-was a pretext for firing her for absences resulting from her pregnancy-related illness.

AmeriTel's representatives' testimony support the Commission's finding. AmeriTel's general manager testified that he believed Keller's absences became excessive around the end of May, just before Keller's employment was terminated. He testified that AmeriTel was prepared to formally reprimand Keller on June 2 for her absences but did not do so because she continued to miss work until her employment was terminated. AmeriTel's Vice President of Operations, who represented it before the appeals examiner also stated: "Is it acceptable to have this amount of absences? No, it is not." Black testified that on June 2, Keller agreed to take a leave of absence while retaining her employment with AmeriTel. While the two were to have discussed the details of Keller's leave when she came to work the following day, this conversation did not occur because she missed her next two shifts and her employment was terminated.

We conclude that substantial and competent evidence supports the Commission's finding that AmeriTel discharged Keller for excessive absences and not for her single absence without notice on June 4. In light of this determination, we need not address AmeriTel's claim that Keller was discharged for employment-related misconduct for the "no call, no show" of June 4.

D. Neither Keller nor the Department is entitled to attorney fees on appeal.

Keller argues that she should be awarded attorney fees under Idaho Appellate Rule 11.2(a) as a sanction against AmeriTel because this appeal was interposed for an improper purpose and it was not founded in fact or law. The Department argues that it should be awarded attorney fees under Idaho Code section 12-117(1) because AmeriTel brought this appeal frivolously and without a reasonable foundation in fact or law. In light of the Commission's cursory treatment of the quit/discharge issue, we decline to award either Keller or the Department attorney fees on appeal. However, as Keller and the Department are the prevailing parties on appeal, they are entitled to costs as a matter of right. I.A.R. 40.

IV. CONCLUSION

We affirm the Commission's order awarding unemployment benefits to Keller. Costs, but not fees, are awarded to Keller and the Department.

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

      Even if we were to decide this issue, AmeriTel's claim would fail. The Commission explicitly found that Keller's failure to provide notice on June 4 "was not intentional." This finding was supported by Keller's testimony regarding the failed text message:
      I honestly had-I honestly had written out the text message and I had thought that I had sent it. So, I don't know if it was-I was sick, obviously. That's the only reason why I wouldn't have came in, but-yeah. So, I don't know if it was a user error as in I didn't send it, because I was so sick and I didn't-I thought I had and I didn't or if it was a technical fault.
      "This Court does not re-weigh evidence and will not disturb the Commission's conclusions regarding the credibility of evidence unless they are clearly erroneous."Sparks v. Laura Drake Ins. & Fin. Servs., Inc. , 164 Idaho 138, 140, 426 P.3d 489, 491 (2018) (citing Serrano v. Four Seasons Framing , 157 Idaho 309, 314, 336 P.3d 242, 247 (2014) ). Keller's testimony constituted substantial and competent evidence upon which the Commission could reasonably rely in reaching its conclusion that Keller had not willfully violated AmeriTel's notice policy.