State v. Ahmed ( 2021 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 47521
STATE OF IDAHO )
) Boise, April 2021 Term
Petitioner-Respondent, )
) Filed: August 4, 2021
v. )
) Melanie Gagnepain, Clerk
MOAWIA OMER AHMED, )
)
Defendant-Appellant. )
_________________________________________ )
Appeal from the District Court of the Fourth Judicial District of the State of Idaho,
Ada County. Gerald F. Schroeder, Senior District Judge.
The decision of the district court is affirmed.
Anthony R. Geddes, Ada County Public Defender, Boise, attorney for Appellant.
Sarah E. Tompkins argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for Respondent. John
C. McKinney argued.
________________________________
BEVAN, Chief Justice.
While this is a case about a conviction for violating a protection order, the principal
focus is on the statutes and guidelines governing domestic violence courts in Idaho. Moawia
Omer Ahmed was charged with violating a protection order under Idaho Code section 39-
6312. At his arraignment, Ahmed’s case was transferred to the Ada County Domestic
Violence Court (“DVC”). In his pretrial motions, Ahmed moved the magistrate court to
dismiss the charge on constitutional grounds. The magistrate court denied Ahmed’s motion,
the case proceeded to trial, and, ultimately, a jury found Ahmed guilty.
Ahmed appealed his conviction to the district court. Ahmed maintained the
magistrate court erred in denying his motion to dismiss. Ahmed also argued the magistrate
court erred by: 1) admitting hearsay evidence; 2) failing to properly instruct the jury; and 3)
requiring Ahmed to undergo a domestic violence assessment. The district court, in its
1
intermediate appellate capacity, affirmed. Ahmed appeals the district court’s decision. We
likewise affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 2, 2017, based on a petition filed under Idaho Code section 39-6304 1 by
Nabila Hamid, Ahmed’s wife, a magistrate court issued a protection order against Ahmed.
The protection order remained effective for one year, as authorized by Idaho Code section
39-6306. 2 The protection order listed Nabila as the protected party, as well as Ahmed and
Nabila’s two minor sons, S.O. and A.A. The protection order prohibited Ahmed from
knowingly remaining within three-hundred feet of S.O.’s elementary school, among other
locations not pertinent to this appeal.
On December 12, 2017, officers with the Boise Police Department responded to the
elementary school after the school secretary called and informed police Ahmed had been
there and attempted to visit S.O. Based on this call, Ahmed was ultimately arrested and cited
for violating the protection order, a misdemeanor in violation of Idaho Code section 39-
6312(1).
At Ahmed’s arraignment, the prosecutor assigned Ahmed’s case to DVC. 3 In his
pretrial motions, Ahmed moved the magistrate court to dismiss the charge pursuant to Idaho
Criminal Rule 12(b)(2), alleging “constitutional defects.” Ahmed argued:
1
Idaho Code section 39-6304(2) allows any person to “seek relief from domestic violence by filing a petition
based on a sworn affidavit with the magistrate division of the district court, alleging that the person or a family
or household member, whether an adult or a child, is the victim of domestic violence.”
2
After the filing of a petition, a hearing, and “a showing that there is an immediate and present danger of
domestic violence,” the court may issue a protection order for a period not to exceed one year. Such an order
proscribes the respondent from engaging in certain enumerated activities, including “coming within one
thousand five hundred (1,500) feet or other appropriate distance” of a school frequented by the children of a
petitioner who has custody of them. See I.C. § 39-6306(1)(a)–(i).
3
It is undisputed that in Ada County the prosecutor determines what cases are eligible for DVC. It is also
undisputed that the eligibility process had not been memorialized in writing when Ahmed was placed into
DVC. The process was explained by the prosecutor as follows: “cases that are screened into DVC are typically
a combination of folks that need DV, mental health, and substance abuse treatment. We try to put in cases that
we perceive to have high risk, high lethality. However, cases that are selected are a function of prosecutorial
discretion.” While the concurrence makes note of this fact as a potential violation of Ahmed’s rights, our
ultimate conclusion is based on the lack of proof to show any disparate treatment for Ahmed in the case
presently before us. Whether Ada County’s procedure violates due process when a defendant is “screened
into” DVC and then forced to attend extra meetings and pay extra fees is a question for another day that we
do not reach, since there is no substantial proof that Ahmed was ever required to participate in those parts of
the DVC or subjected to these requirements after his conviction.
2
First, the [protection order] entered in October 2018 violated the separation
of powers doctrine when the judiciary subsumed the role of the legislature
by issuing an order defining criminal conduct. Second, the [DVC] lacks the
statutory authority to adjudicate the case because no written criteria for the
eligibility, protocol and processes for discharge of participants exists, as
required by Idaho Code and the Idaho Supreme Court Guidelines. . . .
As to his second argument, Ahmed also claimed that the “lack of set rules and procedures
in DVC violates [Ahmed’s] right to procedural due process.” The magistrate court denied
Ahmed’s motion to dismiss.
Ahmed sought a permissive appeal of the denial of his motion to dismiss from the
district court. The district court denied Ahmed’s permissive appeal and remanded the case
to the “[m]agistrate [d]ivision for continued hearings as currently set[.]” The case proceeded
to a jury trial.
At trial, the State called the school secretary to testify. The secretary testified that
Ahmed went to the main office at the elementary school and asked to see his son, S.O. The
secretary also testified that Ahmed left after she informed him that S.O. was not on campus
because school had ended early that day. The secretary explained that after Ahmed left she
confirmed in S.O.’s file that Ahmed was subject to the protection order and she called the
police to inform them of Ahmed’s visit to the school. The State later moved to admit an
audio recording of the phone call between the school secretary and the police dispatcher
through the dispatcher’s testimony. Ahmed objected on foundation and hearsay grounds.
The State, in response, argued the evidence was admissible under the present sense
impression to the rule against hearsay. The magistrate court agreed and admitted the
recording.
At the completion of the evidentiary portion of the trial, the magistrate court, along
with the parties, addressed the proposed post-proof jury instructions. Ahmed advocated for
the magistrate court to include an intent element to the instruction that listed the elements
required for a violation of a protection order. The magistrate court declined to include an
intent element in the instruction.
The jury found Ahmed guilty of violating the protection order. The magistrate court
entered a judgment of conviction and sentenced Ahmed to 365 days in jail, with credit for
two days served and 363 suspended for two years of probation, with the first year
supervised. The court also suspended a $1,000 fine and ordered that Ahmed pay court costs.
3
Additionally, the magistrate court ordered Ahmed to “complete a domestic violence
evaluation.”
Ahmed appealed to the district court. Ahmed argued the magistrate court erred by:
1) denying Ahmed’s motion to dismiss; 2) admitting the audio recording under the present
sense impression exception to the rule against hearsay; 3) failing to include an intent element
in the jury instructions; and 4) ordering Ahmed to undergo a domestic violence evaluation
as part of his sentence. The district court affirmed the magistrate court. Ahmed timely
appealed the district court’s decision.
II. QUESTIONS ON APPEAL
1. Did the district court err in affirming the magistrate court’s denial of Ahmed’s
motion to dismiss?
2. Did the district court err in affirming the magistrate court’s admission of the audio
recording of the school secretary’s phone call under the present sense impression
exception to the rule against hearsay?
3. Did the district court err in affirming the magistrate court giving a jury instruction
that did not include an intent element for violation of a protection order?
4. Did the district court err in affirming Ahmed’s sentence?
5. Is reversal of Ahmed’s conviction necessary under the cumulative error doctrine?
III. STANDARD OF REVIEW
“On review of a decision rendered by a district court while acting in its intermediate
appellate capacity, this Court directly reviews the district court’s decision.” State v. Lantis,
165 Idaho 427, 428, 447 P.3d 875, 876 (2019). The standard is as follows:
Th[is] 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.
Ellis v. Ellis, 167 Idaho 1, 6–7, 467 P.3d 365, 370–71 (2020) (quoting Pelayo v. Pelayo,
154 Idaho 855, 858–59, 303 P.3d 214, 217–18 (2013)). “[T]his Court does not review the
decision of the magistrate court. Rather, we are procedurally bound to affirm or reverse the
decisions of the district court.” Id. at 7, 467 P.3d at 371 (quoting Pelayo, 154 Idaho at 859,
303 P.3d at 218 (internal citations and quotations omitted)).
IV. ANALYSIS
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Ahmed asserts the same errors here that he did before the district court. First, Ahmed
argues the district court erred in affirming the magistrate court’s denial of his motion to
dismiss because both the DVC process and Idaho Code section 39-6312 are
unconstitutional. Second, Ahmed argues the district court erred in affirming the magistrate
court’s admission of hearsay evidence because the trial court’s error was not harmless.
Third, Ahmed argues the district court erred in affirming the magistrate court’s jury
instructions because the magistrate court failed to provide an instruction on the requisite
intent of violating a protection order. Fourth, Ahmed argues the district court erred in
affirming the magistrate court’s sentence that ordered Ahmed undergo a domestic violence
evaluation because the sentence was based on charges of which Ahmed had been acquitted.
Last, Ahmed argues, if the errors individually do not warrant reversal, reversal of his
conviction is necessary under the cumulative error doctrine. For the reasons below, we
affirm the district court’s decision.
A. The district court did not err in affirming the magistrate court’s denial of
Ahmed’s motion to dismiss.
When confronted with Ahmed’s motion to dismiss the charge against him based on
constitutional defects with the DVC process, the magistrate court denied the motion,
explaining:
I think that a defendant does not . . . opt into this court, if he’s assigned to
this court, the defendant is in this court, but he’s entitled to all the due process
considerations. The defendant does not have to plead guilty to anything . . .
he or she would be entitled to have a trial, would be entitled to have an
attorney appointed or have an attorney of their own choice represent them
and they would be entitled to have a pretrial conference, a jury trial. Also[,]
there are [a] number of post-adjudication reviews.
If the defendant is found not guilty . . . then the case is simply not in
this court.
So, overall, I think this is a due process court. . . . [O]n those grounds
and on the constitutional grounds that are related, I don’t think there is any
particular liberty interests that a defendant can assert . . . that a defendant
would be entitled to have the case handled by a judge not involved with
domestic violence court.
The district court affirmed. First, the district court held the DVC process did not
violate Ahmed’s right to due process because Ahmed articulated no “rights he would have
been afforded in a regular misdemeanor court proceeding that he was not afforded by the
domestic violence court proceeding, nor [did] he set forth any violation of fundamental
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fairness or loss of any ability to mount a defense to the allegations of the State.” Second,
the district court held the DVC process did not violate separation of powers because Ahmed
established no sentencing prejudice as a result of the DVC structure which occurs
prejudgment. Last, as for the constitutionality of Idaho Code section 39-6312, the district
court held Ahmed “failed to overcome the strong presumption of the validity of the statute
(or statutes) at issue” because the “underlying statute [Idaho Code section 39-6306] provides
parameters on the terms of the protection order, and it allows the court to fashion the
protection order within those parameters.”
Ahmed asserts the district court erred. In regards to the DVC process, Ahmed argues
the Idaho Domestic Violence Court Policies and Guidelines 4 require courts in Idaho to
“establish written, meaningful criteria” in determining when a case should be diverted to
DVC. Thus, Ahmed argues the process currently employed by DVC—the prosecutor
determining what cases are eligible—violates his right to due process and the separation of
powers. According to Ahmed, the process impedes his right to a fair and impartial judiciary
because the prosecutor determines eligibility, thereby serving as both the accuser and
adjudicator. In addition, permitting the prosecutor to determine the eligibility for DVC
violates separation of powers because the legislature has exclusively granted that power to
the judiciary. Ahmed maintains the process is prejudicial because “[p]lacement in [DVC]
results in a presumptive result for restrictions on liberty and property that do not otherwise
apply to similar charges in non-[domestic violence courts].” Second, Ahmed argues Idaho
Code section 39-6312 violates separation of powers because the statute allows the court to
define criminal conduct.
Idaho Code section 32-1409 provides “[t]he district court in each county may
establish a domestic violence court in accordance with the policies and procedures adopted
by the [S]upreme [C]ourt based upon recommendations by the committee 5. . . .” I.C. § 32-
1409(1).
4
See Idaho Domestic Violence Court Policies and Guidelines (2010),
https://isc.idaho.gov/dv_courts/DV_Court_Policies_and_Guidelines_revised_4.15.pdf.
5
The “committee” refers to the committee established by this Court, which consists of the “judicial, executive
and legislative branches . . . .” The committee serves to “implement a coordinated family court services plan
for a comprehensive response to children and families in the courts” and must “recommend, for adoption by
6
The committee shall recommend policies and procedures for domestic
violence courts addressing eligibility, identification and screening,
assessment, treatment and treatment providers, case management and
supervision, judicial monitoring, supervision of progress and evaluation. The
committee shall also solicit specific domestic violence court plans from each
judicial district, recommend funding priorities for each judicial district and
provide training to ensure the effective operation of domestic violence
courts.
I.C. § 32-1409(2).
In accordance with section 32-1409, this Court has developed policies to assist in
the operation of Idaho’s domestic violence courts. The policies provide the “essential
elements” for domestic violence courts, which include, most relevant here, methods
governing case assignment. 6 The policies provide:
a. Each district shall develop written standards for admission into domestic
violence court including the types of cases that will be identified for
inclusion, i.e., criminal domestic violence, civil and criminal orders of
protection involving the same parties, divorce, custody, child protection, and
any other criminal cases that may impact the well-being of family members
such as substance abuse charges, etc. No person has a right to be admitted
into a domestic violence court. [I.C. § 32-1409(3)][.]
b. Each domestic violence court shall establish written criteria for eligibility,
protocol or processes for screening parties for eligibility and discharge of
participants, if participation is restricted.
(Emphasis added). The policies explain, “[n]ot all models for domestic violence court are
the same,” and that the guidelines are intended “to provide a sound and consistent
foundation for the effective operation and ongoing evaluation of Idaho’s domestic violence
courts and incorporate research-based criteria to provide the optimum opportunity for
success.”
At the time of Ahmed’s case, the DVC process in Ada County had not been
memorialized in writing. Even so, each participant received a handbook that explained:
“[t]he Ada County Prosecutor and the Boise City Prosecutor screen cases into DV[C] and
the [S]upreme [C]ourt, policies and procedures that will carry out the purposes of [the Coordinated Family
Services] chapter.” I.C. § 32-1403.
6
In 2009, the Idaho Legislature provided for the expansion of domestic violence courts “in accordance with
the policies and procedures adopted by the [S]upreme [C]ourt[.]” See I.C. § 32-1409. Heeding this authority,
this Court finalized the Policies in January 2010. See Idaho DV Court History, ISC.GOV,
https://isc.idaho.gov/domestic-violence/dvc-court-history (last visited Apr. 30, 2021).
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the case will remain in the DV[C] until both the resolution of the criminal case and
conclusion of the probationary period.” The handbook also provided that “[a] vast majority
of participants will be ordered to two years of supervised probation and will be engaged in
this program for this length of time.” The handbook also explained that a participant may
be “screened into the DV[C] program” following arrest but the participant is still entitled to
an attorney and that “[t]he goal of the DV[C] is to have cases resolved by way of plea or
jury trial within six weeks of initial appearance in DV[C].”
1. This Court will not reach Ahmed’s separation of powers argument as it relates
to the DVC process because Ahmed failed to raise the issue before the magistrate
court.
Ahmed argues the current process of unilateral determination of eligibility and
screening by the prosecutor is unconstitutional. According to Ahmed, the DVC process
violates separation of powers because the prosecutor is performing duties exclusively
reserved for the judiciary. However, Ahmed failed to argue this point in his motion to
dismiss before the magistrate court; it was not until his appeal to the district court that
Ahmed raised this specific issue. Despite Ahmed’s failure to set forth the separation of
powers issue before the magistrate court and the appellate standard that “[i]ssues not raised
below will not be considered by [appellate courts], and the parties will be held to the theory
upon which the case was presented to the lower court,” State v. Hoskins, 165 Idaho 217,
221, 443 P.3d 231, 235 (2019) (quoting State v. Garcia-Rodriguez, 162 Idaho 271, 275, 396
P.3d 700, 704 (2017)), the district court addressed Ahmed’s concerns. It is clear from the
record that Ahmed failed to raise a separation of powers issue as it relates to the DVC
process before the magistrate court and the magistrate court made no ruling regarding that
specific issue. As a result, we hold the district court improperly ruled on the issue and the
district court’s decision is reversed. State v. Rubbermaid Inc., 129 Idaho 353, 357, 924 P.2d
615, 619 (1996).
2. The DVC process did not violate Ahmed’s right to due process.
In its briefing before this Court, the State argued Ahmed’s contention regarding the
alleged due process violation is moot. “ ‘An issue becomes moot if it does not present a real
and substantial controversy that is capable of being concluded’ by judicial relief.” State v.
Barclay, 149 Idaho 6, 8, 232 P.3d 327, 329 (2010) (quoting Koch v. Canyon Cnty., 145
Idaho 158, 163, 177 P.3d 372, 377 (2008)). “Idaho law parallels the United States Supreme
8
Court in that mootness applies not only to a dead issue, but also when the appellant lacks a
legal interest in the outcome.” State v. Hoyle, 140 Idaho 679, 682, 99 P.3d 1069, 1072
(2004). As such, “this Court cannot hear and resolve an issue that ‘presents no justiciable
controversy and a judicial determination will have no practical effect on the outcome.’ ” Id.(quoting Idaho Sch. for Equal Educ. Opp. v. Idaho State Bd. of Educ., 128 Idaho 276, 281,
912 P.2d 644, 649 (1996)).
According to the State, the remedy Ahmed requested below for the alleged violation
was removal from DVC, not dismissal of the charge altogether. The State maintains that a
determination by this Court that the magistrate court erred by declining to remove Ahmed
from DVC would have no practical effect on the outcome of Ahmed’s case because Ahmed
was removed from DVC and was ultimately convicted by a jury after a trial. The record
does not support this assertion. While the record is vague in this regard, it provides that
Ahmed moved to dismiss the complaint against him on constitutional grounds, while also
seeking to be transferred to “regular” magistrate court. Ultimately, though the record is not
entirely clear, the magistrate court appears to have left Ahmed in the DVC at that time, even
though his ultimate sentence, as will be discussed below, does not appear to be a DVC
sentence. Either way, the relief that Ahmed sought before the magistrate court would have
had a practical effect on the outcome of his case had the charge against him been dismissed.
As such, we will address the merits of Ahmed’s argument as it relates to the alleged due
process violation.
“It is fundamental to our legal system that the State shall not deprive ‘any person of
life, liberty, or property, without due process of law.’ ” State v. Rogers, 144 Idaho 738, 740,
170 P.3d 881, 883 (2007) (quoting U.S. CONST. amend. XIV, § 1). “Procedural due process
imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or
‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth
Amendment.” State v. Stegall, 167 Idaho 918, 921, 477 P.3d 972, 975 (2020) (quoting
Mathews v. Eldridge, 424 U.S. 319, 332 (1976)); see also Boise Tower Assocs., LLC v.
Hogland, 147 Idaho 774, 780, 215 P.3d 494, 500 (2009) (“The right to procedural due
process is secured by the Fifth Amendment to the United States Constitution, as applied to
the states through the Fourteenth Amendment, and by Article 1, Section 13 of the Idaho
Constitution.”). Due process is a flexible concept that requires “such procedural protections
9
as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). In
essence, the right of an accused in a criminal trial is the “right to a fair opportunity to defend
against the State’s accusations.” Stegall, 167 Idaho at 921, 477 P.3d at 975 (quoting
Chambers v. Mississippi, 410 U.S. 284, 294 (1973)); see also Bradbury v. Idaho Jud.
Council, 136 Idaho 63, 72, 28 P.3d 1006, 1015 (2001) (“A procedural due process inquiry
is focused on determining whether the procedure employed is fair.”).
Ahmed’s main point is that the prosecutor, not the court, assigned Ahmed’s case to
DVC. According to Ahmed, due process requires a neutral and detached magistrate make
that decision because there is a potential for bias when the same person—the prosecutor—
serves as both the accuser and adjudicator. In support of his argument, Ahmed relies on
State v. Easley, 156 Idaho 214, 322 P.3d 296 (2014). It is perplexing why Ahmed relies on
Easley when that case stemmed from a treatment court placement (mental health court) that
occurred post-judgment. See 156 Idaho at 221, 322 P.3d at 303. In Easley, the placement
procedure granted the prosecutor the ability to prevent the district court from considering
the defendant for mental health court because the process “grant[ed] the prosecutor an
absolute veto over the post-judgment court’s ability to sentence [the defendant] to mental
health court.” Id. at 220, 322 P.3d at 302 (internal quotations omitted). Easley appealed
arguing the “prosecutorial veto violate[d] Idaho’s Separation of Powers Doctrine” because
the prosecutor, by “making eligibility determinations for the mental health court post-
judgment rather than pre-judgment” was “exercising judicial functions.” Id. at 221, 322
P.3d at 303 (emphasis added). This Court agreed with Easley. Id. We held the post-judgment
prosecutorial veto violated separation of powers because “[w]hatever authority prosecutors
have as ‘judicial officers,’ that authority does not extend to determining sentencing when a
defendant has been adjudicated guilty of a violation. That is the court’s authority. It cannot
be contracted away.” Id. This Court added:
This determination does not undercut the structure and purpose of
Idaho’s [treatment] courts, which are “innovative diversion efforts.” State v.
Rogers, 144 Idaho 738, 739 n. 1, 170 P.3d 881, 882 n. 1 (2007). Idaho’s
[treatment] courts are designed by statute to be collaborative. Idaho Code
[section] 19-5602 requires a coordinating committee to develop guidelines
for [treatment] courts, which shall include judges, court administrators,
prosecutors, public defenders, treatment providers, law enforcement officers,
legislators, executive officers from the governor’s office, and more.
Diversion in the pre-judgment process remains collaborative.
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Id. (emphasis added).
Ahmed asserts the due process violation is worse than the violation in Easley
because: 1) “there is an established standard requiring eligibility determinations to be made
via written standards by the courts as a neutral and detached hearing body;” and 2) “no court
in Ada County ever makes or reviews the eligibility determination at all.” Ahmed maintains
these issues are prejudicial because placement in DVC “makes a discernible difference in
both process and in outcome.” Ahmed argues he must “pay for any treatment, costs,
supervision fees, or court costs that are ordered” and “domestic violence evaluation and
treatment are presumptively required.” Ahmed argues further, “supervised probation is the
default provision of any sentence” in DVC. As such, Ahmed maintains that this presumptive
sentence results in “restrictions on liberty and property that do not otherwise apply to similar
charges in non-[DVC].”
As an initial point, we note that nothing in the record supports Ahmed’s claims about
the financial impact or other negative impact of placement in DVC upon him. While these
arguments may be potentially true when one is engaged in DVC, there is no evidence in the
record of Ahmed paying fees or incurring any other negative impact due to the prosecutor’s
screening his case into DVC. Thus, his claims about a discernable difference in process and
outcome for him are unsubstantiated and do not support relief from this Court.
Ahmed’s allegations of disparate treatment and prosecutor overreach are likewise
without merit. Ahmed received a fair opportunity to defend against the State’s accusations
and to argue for a sentence he believed would be appropriate after conviction. See Stegall,
167 Idaho at 921, 477 P.3d at 975. As noted above, during his case Ahmed moved the
magistrate court to dismiss the charge, arguing this same due process claim. The magistrate
court denied the motion. Ahmed then sought a permissive appeal. At the motion hearing
before the district court, the district court inquired “[i]f you went across the hall to a court
that wasn’t titled ‘[DVC],’ would there be any additional Constitutional rights you would
have there that you would not have in the titled ‘[DVC]’? [sic]” Ahmed’s counsel answered
candidly: “[n]ot that I can think of[.]” In explaining the differences between DVC and non-
DVC, counsel did state:
[T]he only thing that may be different going in, I mean, they still get a status
conference—or a pretrial conference, they are still [re]presented by counsel.
The offers—settlement offers that a person might receive may be different
11
in a domestic violence court situation rather than on the regular misdemeanor
calendar given that the prosecutors are specifically looking for indicia of
domestic violence, power and control issues, ongoing violence, patterns of
violence.
And so the benefit of the domestic violence program is to get people
domestic violence treatment that need it, and hopefully the early intervention
and some programing will help stave off future problems.
And as a result of that, most settlement offers coming in have more
programming attached to them than, say, if it were adjudicated outside of the
domestic violence court program.
Now, I can’t speak for every case that would ever come in, but
generally, if a case comes into domestic violence court, people are looking
at two years of supervised probation, a DV eval[uation], perhaps substance
abuse eval[uation], mental health evaluation. And also, the obligation of
continued review hearings post sentencing rather than simply being
monitored on a probation.
Ahmed’s permissive appeal was denied. The district court remanded the case to the
magistrate division for continued hearings, which culminated in a jury trial and ultimate
sentencing.
From the onset of his case, Ahmed was represented by counsel, was entitled to the
same rights afforded in any other court – arguably more considering the goal of DVC is
swift resolution of cases. Ultimately, a jury of his peers found Ahmed guilty of violating the
protection order. Even more, in sentencing, the magistrate court deviated from the DVC’s
presumptive two-year supervised probation guideline and sentenced Ahmed to one year of
supervised probation followed by one year of unsupervised probation. His claim of disparate
treatment due to his initial screening into DVC is not supported on these facts. There is no
means for Ahmed to attend meetings and pay extra fees if he is on unsupervised probation.
These facts establish that not only was Ahmed granted all process to which he was due, but
he also appears to have been sentenced as a non-DVC defendant would be. Nothing in the
record establishes that he was ordered to pay additional fees or required to pay costs that
any other misdemeanant would not need to pay. He was required to get a domestic violence
evaluation, as will be discussed below, but that, alone, does not violate his right to due
process.
While we are troubled by the lack of written eligibility standards as required by this
Court and the legislature, we do not hold the DVC process, which includes the prosecutor
determining eligibility for DVC, unconstitutional based on the record before us. There is no
12
evidence that the DVC process then-employed violated Ahmed’s right to due process and
the district court did not err in affirming the magistrate court’s denial of Ahmed’s motion
to dismiss on these grounds.
3. Idaho Code section 39-6312 does not violate separation of powers.
Ahmed maintains “the statutory scheme provided for separate criminal punishment
under [Idaho Code section] 39-6312 violate[s] separation of powers, as it is the court issuing
the protection order that is actually defining the particular conduct that constitutes the
offense.” According to Ahmed, “the legislature . . . failed to identify the actual action itself
that would subject a party to criminal punishment,” and that “it is the magistrate that actually
defines the specific elements and criminal acts for a conviction under this offense. On the
fact [sic] of this statute, the magistrate’s order, rather than the legislature, provides the
specific definition in any case and for any individual of what conduct is criminal.” In
support, Ahmed relies on State v. Herren, 157 Idaho 722, 339 P.3d 1126 (2014).
Article II, section one of the Idaho Constitution provides for the separation of powers
among Idaho’s three branches of government. See Tucker v. State, 162 Idaho 11, 28, 394
P.3d 54, 71 (2017).
The powers of the government of this state are divided into three distinct
departments, the legislative, executive and judicial; and no person or
collection of persons charged with the exercise of powers properly belonging
to one of these departments shall exercise any powers properly belonging to
either of the others, except as in this constitution expressly directed or
permitted.
IDAHO CONST. art. II, § 1. “[O]f Idaho’s three branches of government, only the legislature
has the power to make law.” Mead v. Arnell, 117 Idaho 660, 664, 791 P.2d 410, 414 (1990)
(internal quotation omitted). “It is uniformly held that the power to define crime and fix
punishment therefor rests with the legislature, and that the legislature has great latitude in
the exercise of that power.” Mallory v. State, 91 Idaho 914, 915, 435 P.2d 254, 255 (1967).
Idaho Code section 39-6312 is the provision which criminalizes a violation of a
protection order. It provides:
Whenever a protection order is granted and the respondent or person to be
restrained had notice of the order, a violation of the provisions of the order
… shall be a misdemeanor punishable by not to exceed one (1) year in jail
and a fine not to exceed five thousand dollars ($5,000), ten dollars ($10.00)
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of which shall be deposited to the credit of the domestic violence project
account . . . .
I.C. § 39-6312(1) (emphasis added). Section 39-6306 allows a court to issue a protection
order when a petitioner makes a showing of an immediate and present danger of domestic
violence. In such instances, a court may order a myriad of restrictions explicitly provided by
the legislature. I.C. § 39-6306(1)(a)-(i). Thus, section 39-6312 connects to the provisions
of a protection order issued under the authority granted in Idaho Code section 39-6306.
Relevant here, the court may order
[t]he respondent be restrained by from coming within one thousand five
hundred (1,500) feet or other appropriate distance of the petitioner, the
petitioner’s residence, the school or place of employment of the petitioner,
or any specified place frequented by the petitioner and by any other
designated family member or specifically designated person of the
respondent’s household[.]
I.C. § 39-6306(1)(i). The legislature unambiguously granted courts authority to issue
protection orders restraining a person who presents an immediate and present danger to
another from going within 1,500 feet or “other appropriate distance” of the protected person
or the protected person’s home, school, or place of employment. I.C. § 39-6306(1)(i); see
also State v. Lodge, 166 Idaho 537, 540, 461 P.3d 819, 822 (2020) (“[T]he grant of
discretion to the district court regarding the issuance of no contact orders [which is similar
to the issuance of a protection order, see I.C. § 18-920] as part of a criminal case is broad.”).
Leaving the court with the discretion to determine an appropriate distance for protection
does not violate the separation of powers. Judges with familiarity with the unique
circumstances of each case are better situated to determine an appropriate distance of
protection, rather than requiring every case to uniformly restrain a respondent to a 1,500-
feet limit; Magistrate judges are authorized to act within their discretion to carve-out the
appropriate limitation on distance, given the facts of each case. Here, the magistrate court
imposed a restriction of 300-feet, which is substantially less than what the legislature
authorized.
Ahmed relies on Herren to support his argument that the statute delegates
inappropriate authority to judges to define the law. In Herren, this Court analyzed Idaho
Code section 18-920, the statute governing no-contact orders. 157 Idaho at 725–26, 339
P.3d at 1129–30. Section 18-920(1) provides that a court may issue “an order forbidding
14
contact with another person.” (Emphasis added). Further, a violation of a no contact order
occurs when “[t]he person charged or convicted has had contact with the stated person in
violation of an order.” I.C. § 18-920(2)(c) (emphasis added). In Herren, the magistrate court
issued a no contact order stating: “[i]t is hereby ordered that [Herren] shall not contact . . .
or attempt to contact, harass, follow, communicate with, or knowingly remain within 100
feet of [protected party].” 157 Idaho at 724, 339 P.3d at 1128. Herren was subsequently
charged with violating the no contact order under section 18-920 after he knowingly came
within one hundred feet of the protected party. Id. On appeal, Herren argued he could not
be guilty of violating the no contact order under section 18-920 because he did not actually
“contact” the protected party, as the term is generally understood. Id. at 725, 339 P.3d at
1129. Conversely, the State argued “the language ‘contact . . . in violation of an order,’ from
Idaho Code section 18-920(2)(c) indicates that ‘contact’ is that conduct forbidden by the
order” which includes distance restrictions. Id. This Court disagreed with the State’s
contentions and ultimately reversed Herren’s conviction. Id. at 726, 339 P.3d at 1130. We
explained: “[a]lthough Herren violated the terms of the no-contact order by remaining
within 100 feet of [the protected party], this was ‘not contact with the stated person in
violation of an order’ in violation of Idaho Code section 18-920(2).” The essence of the
Herren decision is that the lower court went too far in defining what “contact” meant. The
court’s misstep was not in entering the order, but in defining the limits of the crime itself.
This Court acknowledged the predicament that could arise if we were to adopt the State’s
interpretation of section 18-920. Id. at n.1, 339 P.3d at 1130 n.1. We invited the legislature
to resolve the potential difficulty that arose from the State’s interpretation that “a judge
issuing a no contact order has the power to define conduct by a particular individual which
would constitute a crime other than contempt.” The legislature may not “delegate the power
to promulgate criminal laws to individual judges as courts do not have the power to define
crimes.” Id. at 726 n.1, 339 P.3d at 1130 n.1.
Although this principle remains good law today, it is inapplicable to Idaho Code
sections 39-6306 and 6312. The Herren footnote focused on the legislature’s failure to
define criminal conduct and leaving that to the issuing magistrate to accomplish. The issue
here is not a definitional shortcoming; it is a question of a court issuing a protection order
that falls within the bounds provided by the legislature in Idaho Code section 39-6306(1).
15
Ahmed argues section 39-6312(1)’s language, “violation of the provisions of the order,” is
akin to section 18-920’s far-reaching proviso which broadly allows a court to issue “an order
forbidding contact with another person.” (Emphasis added). Ahmed’s focus is misplaced.
The language defining the crime of which Ahmed was convicted is found, not in section 39-
6312, but in section 39-6306(1). While we noted in the Herren footnote that “contact” may
be defined differently by different judges, such a defect simply does not exist in section 39-
6312(1), which is circumscribed by the benchmarks the legislature established. Ahmed
argues that an issuing court “defines the order” and then determines when a violation occurs.
But a violation of section 39-6312 occurs as soon as the person subject to the protection
order violates one of the nine restrictions the legislature has given the courts authority to
impose under section 39-6306(1). Thus, we affirm the district court’s holding that the
magistrate court did not err in denying Ahmed’s motion to dismiss on this ground.
B. The district court did not err in concluding that the magistrate court’s
admission of hearsay evidence was harmless.
At trial, the magistrate court admitted an audio recording of the phone call the school
secretary made to police over Ahmed’s hearsay objection. The magistrate court admitted
the call under the present sense impression exception. See I.R.E. 803(1). On intermediate
appeal, the district court held the magistrate court abused its discretion by admitting the
phone call. Even so, the district court held the error was harmless. The State does not contest
that the admission of the phone call was erroneous.
Ahmed challenges the district court’s reference to its standard of review, when it
stated, “[t]he burden of showing prejudicial error rests on the party asserting such error.”
Ahmed, relying on State v. Perry, 150 Idaho 209, 222, 245 P.3d 961, 974 (2010), correctly
notes, “[a] defendant appealing from an objected-to, non-constitutionally-based error shall
have the duty to establish that such an error occurred, at which point the State shall have the
burden of demonstrating that the error is harmless beyond a reasonable doubt.” Ahmed
maintains he met his burden of showing the magistrate court erred in admitting the phone
call and thus the district court was “required to treat this error as prejudicial unless and until
the State could establish, beyond a reasonable doubt, that the error was harmless.” Ahmed
argues the State failed to prove beyond a reasonable doubt that the error was harmless. We
disagree with Ahmed’s conclusion based on the record before us.
16
As an initial point, Ahmed is correct about the standard of review for objected-to
error, and that the district court erred when it stated that the burden remained with Ahmed
to show prejudicial error. Even so, we will apply the proper standard of review and review
the record before the magistrate court against that standard. Ellis v. Ellis, 167 Idaho 1, 6–7,
467 P.3d 365, 370–71 (2020).
Idaho Criminal Rule 52 provides that “[a]ny error, defect, irregularity or variance
which does not affect substantial rights shall be disregarded.” See also State v. Johnson, 148
Idaho 664, 669, 227 P.3d 918, 923 (2010). But in reviewing questions of objected-to error,
“[t]he inquiry is whether, beyond a reasonable doubt, a rational jury would have convicted
[the defendant] even without the admission of the challenged evidence.” Johnson, 148 Idaho
at 669, 227 P.3d at 923. “A defendant appealing from an objected-to, non-constitutionally-
based error shall have the duty to establish that such an error occurred, at which point the
State shall have the burden of demonstrating that the error is harmless beyond a reasonable
doubt.” Perry, 150 Idaho at 222, 245 P.3d at 974. “In other words, the error is harmless if
the Court finds that the result would be the same without the error.” State v. Anderson, 162
Idaho 610, 618, 402 P.3d 1063, 1071 (2017) (quoting State v. Almaraz, 154 Idaho 584, 598,
301 P.3d 242, 256 (2013)). This Court recently clarified: “[w]hen the effect of the error is
minimal compared to the probative force of the record establishing guilt ‘beyond a
reasonable doubt’ without the error, it can be said that the error did not contribute to the
verdict rendered and is therefore harmless.” State v. Garcia, 166 Idaho 661, 674, 462 P.3d
1125, 1138 (2020).
It is undisputed that the magistrate court erred in admitting the phone call under the
present sense impression exception to the rule against hearsay. As such, Ahmed maintains
he satisfied his burden of showing an error occurred and that the State had to show the error
was harmless beyond a reasonable doubt. “Harmless error is ‘error unimportant in relation
to everything else the jury considered on the issue in question, as revealed in the record.’ ”
Garcia, 166 Idaho at 674, 462 P.3d at 1138 (quoting Yates v. Evatt, 500 U.S. 391, 403
(1991)). Thus, “[t]he probative force of evidence untainted by error against a defendant must
be examined and weighed as against the probative force of the error itself.” Id. at 675, 462
P.3d at 1139.
17
Here, “when the error of admitting the [phone call] is weighed against everything
else the jury considered, as revealed in the record, the [magistrate] court’s error was
harmless.” Garcia, 166 Idaho at 675, 462 P.3d at 1139. First, a deputy testified about the
existence of the protection order, that Ahmed was served with the protection order, and that
the protection order prohibited Ahmed from being within three hundred feet of S.O.’s
elementary school. Second, the school secretary who made the phone call testified at trial
and was subject to cross-examination. She testified that she called the police after Ahmed
tried to visit S.O. at the school. She also testified that she called police because S.O.’s file
provided Ahmed was prohibited from contacting S.O. Last, and of significant import,
another deputy testified that he was dispatched to Ahmed’s house after receiving the phone
call and, at that time, Ahmed told the officer he had visited the school. Without admitting
the phone call, the probative force of the evidence at trial based on the above testimony is
strong enough to show beyond a reasonable doubt that Ahmed visited the elementary school
in direct violation of the protection order. Thus, regardless of the district court’s
misstatement of the appropriate standard of review, we conclude that the magistrate court’s
error was harmless beyond a reasonable doubt. We therefore affirm the district court’s
conclusion, though we apply the appropriate standard of review in doing so.
C. The district court did not err in affirming the magistrate court’s jury
instructions.
Ahmed objected to the proposed post-proof jury instructions. Ahmed asked the
magistrate court to include an intent element to the instruction defining the elements of the
charge of violation of a protection order. The magistrate court declined to do so. The district
court affirmed. The district court held that the proposed instruction set forth “the mental
statement necessary for violation of [section 39-6312]—notice of the order and acting in
violation of the order.” Ahmed argues the district court erred in affirming the magistrate
court’s failure to provide an instruction on the applicable intent for the offense because
“whether [Ahmed] had meaningful notice of the order in light of his language difficulties
was the central—perhaps even [the] only—disputed element in his entire trial.”
“A trial court presiding over a criminal case must instruct the jury on all matters of
law necessary for the jury’s information.” State v. Severson, 147 Idaho 694, 710, 215 P.3d
414, 430. Stated otherwise, “a trial court must deliver instructions on the rules of law that
18
are ‘material to the determination of the defendant’s guilt or innocence.’ ” Id. (quoting State
v. Mack, 132 Idaho 480, 483, 974 P.2d 1109, 1112 (Ct. App. 1999)). “This necessarily
includes instructions on the ‘nature and elements of the crime charged and the essential legal
principles applicable to the evidence that has been admitted.’ ” State v. Meyer, 161 Idaho
631, 634, 389 P.3d 176, 179 (2017) (quoting Mack, 132 Idaho at 483, 974 P.3d at 1112).
Each party is entitled to request the delivery of specific instructions.
However, such instructions will only be given if they are “correct and
pertinent.” I.C. § 19-2132. A proposed instruction is not “correct and
pertinent” if it is: (1) an erroneous statement of the law; (2) adequately
covered by other instructions; or (3) “not supported by the facts of the case.”
State v. Olsen, 103 Idaho 278, 285, 647 P.2d 734, 741 (1982).
Id.This Court “review[s] the trial court’s jury instructions de novo to determine
‘whether, when considered as a whole, they fairly and adequately present the issues and
state the applicable law.’ ” State v. Dunlap, 155 Idaho 345, 463, 313 P.3d 1, 20 (2013)
(quoting State v. Adamcik, 152 Idaho 445, 472, 272 P.3d 417, 444 (2012)). The instruction
must be considered in the context of the instructions as a whole. Id.; see also Estelle v.
McGuire, 502 U.S. 62, 72 (1991) (“It is well established that the instruction may not be
judged in artificial isolation, but must be considered in the context of the instructions as a
whole and the trial record.”).
“In every crime or public offense there must exist a union . . . of act and intent[.]”
I.C. § 18-114; see also I.C.J.I. 305. “A union of act and intent jury instruction should
generally be given for a general-intent crime.” 7 State v. Beeks, 159 Idaho 223, 231, 358 P.3d
784, 792 (Ct. App. 2015). Even so, the Court of Appeals has recognized “it is unresolved
whether such an instruction is necessary in order for the instructions, when viewed as a
whole, to fairly and accurately reflect the applicable law.” Id. Even though the answer to
the Court of Appeals’ question will generally be yes, for purposes of the limited facts before
us, we hold that such an instruction was unnecessary and the instructions, when viewed as
a whole, fairly and accurately reflect the applicable law. Beyond that, even “if the failure to
give a union of act and intent jury instruction for a general intent crime constituted a
7
“A general intent statute is one that simply prohibits a specific voluntary act while a specific-intent crime
requires an intent to cause a particular result or achieve a specific purpose.” 22 C.J.S. Criminal Law:
Substantive Principles § 36 (2021).
19
violation . . . [a defendant must] show a reasonable possibility that the error affected the
outcome of the trial.” Beeks, 159 Idaho at 231, 358 P.3d at 792 (citing Perry, 150 Idaho at
226, 245 P.3d at 978).
Here, the instruction at issue provided:
In order for the defendant to be guilty of Violating a Protection Order,
the state must prove each of the following:
1. On or about December 12[,] 2017
2. in the state of Idaho
3. the defendant Moawia Ahmed
4. violated the provisions of a protection order issued on October 2,
2017 by Judge Andrew Ellis by attempting to contact S.O. and
coming within 300 feet of . . . Elementary School, having received
notice that the Protection Order prohibits him from doing so, and
5. before such violation the defendant had notice of the order.
Ahmed’s claim of error relies on his theory that, because of a language barrier,
Ahmed did not receive adequate notice of the protection order. Thus, Ahmed asserts an
intent instruction was necessary because there is a question of whether there was a lack of
notice. “[W]hen a criminal statute does not set forth any specific mental state as an element
of the crime, the intention with which the criminal act is done . . . is immaterial.” Beeks, 159
Idaho at 231, 358 P.3d at 792 (citing State v. Fox, 124 Idaho 924, 925-26, 866 P.2d 181,
182-83 (1993)). “[T]he general-intent element is satisfied if the defendant knowingly
performed the interdicted act . . . regardless of whether the defendant intended to commit a
crime.” Id. Thus, to find Ahmed guilty, “the state needed only to establish that [Ahmed
visited the school] in violation of the valid [protection order] and with notice that the
[protection order] was in effect.” Beeks, 159 Idaho at 231, 358 P.3d at 792.
The instruction clearly provided that the State was required to prove, beyond a
reasonable doubt, that Ahmed had notice of the protection order. Based on the instruction
as given, Ahmed was free to argue that his language barrier precluded him from having
notice of the order. The record before the jury included evidence that English was not
Ahmed’s first language, and thus the jury was free to consider that very issue in coming to
its decision. If the State failed in that proof, the jury was free to find that Ahmed was not
guilty of violating the protection order. However, the jury did the opposite. Given these
facts, the “intention with which the criminal act [was] done . . . is immaterial.” Id. The issue
was whether Ahmed had notice and whether he acted after that notice. That issue was
20
squarely before the jury and was decided against Ahmed. Therefore, we affirm the district
court.
D. The district court did not err in affirming Ahmed’s sentence.
As part of Ahmed’s sentence, the magistrate court ordered Ahmed undergo a
domestic violence evaluation. The district court affirmed the sentence. The district court
held the magistrate court did not abuse its discretion in ordering Ahmed to undergo a
domestic violence evaluation as a condition of his probation because such an evaluation was
reasonable and because a trial court may consider uncharged conduct or unproven
allegations. Ahmed argues the district court abused its discretion when it affirmed the
magistrate court’s sentence requiring Ahmed undergo a domestic violence evaluation
because it stemmed from conduct for which Ahmed was never convicted.
“Appellate review of a sentence is based on an abuse of discretion standard.” State
v. Dobbs, 166 Idaho 202, 203, 457 P.3d 854, 855 (2020). In reviewing whether a lower court
abused its discretion, this Court asks 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.” State v. Villa-Guzman, 166 Idaho 382,
384, 458 P.3d 960, 962 (2020) (quoting Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421
P.3d 187, 194 (2018)).
“[A] fundamental requirement in the proper exercise of sentencing discretion is
reasonableness.” Dobbs, 166 Idaho at 204, 457 P.3d at 856 (quoting State v. Charboneau,
124 Idaho 497, 499, 861 P.2d 67, 69 (1993)). “A sentence is reasonable if it appears
necessary to achieve the objectives of criminal punishment.” Id. Those objectives are
“protection of society, deterrence of the individual and the public, possibility of
rehabilitation, and punishment or retribution for wrongdoing, with the primary objective
being the protection of society.” Id. (quoting State v. Bailey, 161 Idaho 887, 895, 392 P.3d
1228, 1236 (2017)). “A sentence fixed within the limits prescribed by the statute will
ordinarily not be considered an abuse of discretion by the trial court.” State v. Alvarado, __
Idaho __, __, 481 P.3d 737, 749 (2021) (quoting State v. McIntosh, 160 Idaho 1, 8, 368 P.3d
621, 628 (2016)).
21
Ahmed’s sentence is well within the statutory guidelines. Idaho Code section 39-
6312(1) provides violation of a protection order is a “misdemeanor punishable by not to
exceed one (1) year in jail and a fine not to exceed five thousand dollars ($5,000), ten dollars
($10.00) of which shall be deposited to the credit of the domestic violence project . . . .”
More, “it is well established that a sentencing court may, with appropriate caution, consider
a defendant’s alleged criminal conduct for which he has not been convicted or for which
charges have been dismissed.” State v. Thomas, 133 Idaho 800, 804, 992 P.2d 795, 799 (Ct.
App. 1999). Beyond that, the magistrate court noted that the protection order was granted
because Ahmed’s wife sought to prevent him from seeing her, presumably because of
domestic violence in the relationship. At the sentencing hearing, the magistrate court
explained:
And I’m going to order that you complete a domestic violence evaluation.
And the reason I’m doing that, there’s—is, first, your wife went—had went
[sic] and got a civil protection order to prevent you from seeing her. The
second reason is there have been past allegations of domestic violence. And
I know that none of those have been proven, but there have been past
allegations.
And if the evaluator feels that there are no issues as far as domestic
violence is concerned, the evaluation is likely—is not likely to recommend
any sort of treatment. So I’m not going to order you to get treatment. I’m
going to order you to get an evaluation and that will recommend whether or
not treatment would be necessary.
The record shows that the magistrate court considered the overriding sentencing goal
of protection of society, and it also considered the objective of rehabilitation, and
appropriately concluded it was reasonable for Ahmed to undergo a domestic violence
evaluation and likely follow any recommendations in the evaluation. While Ahmed argues
that this was also part of the due process violation he suffered (as discussed above), the fact
that Ahmed was found to have violated a protection ordered issued “[u]pon a showing that
there [wa]s an immediate and present danger of domestic violence” between him and his
wife, makes this requirement of his sentence not only reasonable, but likely commonplace,
whether Ahmed was a part of DVC or not. Thus, we affirm the district court’s holding that
the magistrate court did not abuse its discretion when it required Ahmed to undergo a
domestic violence evaluation as part of his sentence.
22
E. This Court will not reverse Ahmed’s conviction under the cumulative error
doctrine.
On appeal to the district court, Ahmed argued the accumulation of the errors at trial
warranted reversal. The district court disagreed and simply stated, “[t]here was no
cumulation of errors that denied [Ahmed] a fair trial.” Before this Court, Ahmed argues the
district court erred and that the cumulative error doctrine requires reversal of his conviction.
“Under the doctrine of cumulative error, a series of errors, harmless in and of
themselves, may in the aggregate show the absence of a fair trial.” State v. Johnson, 163
Idaho 412, 428, 414 P.3d 234, 250 (2018) (quoting Perry, 150 Idaho at 230, 245 P.3d at
982). Even so, the mere presence of errors does not automatically require reversal of a
conviction because a defendant “is entitled to a fair trial, not an error-free trial.” Id. (quoting
State v. Moore, 131 Idaho 814, 823, 965 P.2d 174, 183 (1998)). “[A] necessary predicate to
the application of the doctrine is a finding of more than one error.” Perry, 150 Idaho at 230,
245 P.3d at 982.
Ahmed “has failed to demonstrate at least two errors, [in the trial court, which is] a
necessary predicate to the application of our cumulative error doctrine.” Perry, 150 Idaho
231, 245 P.3d at 983. As a result, we decline to reverse Ahmed’s conviction on that basis.
V. CONCLUSION
The district court’s decision is affirmed.
Justices BRODY, MOELLER and Justice pro tem BURDICK, CONCUR.
STEGNER, J., specially concurring.
I concur in the majority’s conclusion that Ahmed failed to preserve his argument
that the DV Court violates separation of powers principles because entry to that Court is
controlled by the prosecutor (and despite my belief that this argument has potential merit if
it had been properly preserved). I also concur with the majority’s conclusion that the record
does not establish that Ahmed was actually placed in DV Court. Consequently, it is not clear
from this record that he can argue that his rights to due process were violated. However, I
write separately to voice my concerns regarding the operation of Idaho’s Domestic Violence
Courts.
23
The Misdemeanor Domestic Violence Court Participant Handbook outlines the
goals and requirements of the program in Ada County. 8 Specifically, the Handbook provides
that participants must (1) “pay for treatment costs, court costs, and supervision fees,” (2)
appear “before a DV Court judge on a regular basis after sentencing,” and (3) “pay
Misdemeanor Probation Department fees currently set at $75.00 per month.” The Handbook
also states that “[f]ailure to follow either the probation terms or the DV Court’s orders may
result in dismissal from the program.” Finally, participants “must be motivated to make this
change and [be] committed to ending domestic violence.”
Idaho conducts multiple treatment courts, including drug and mental health courts,
which are voluntary in nature. Defendants must “agree to participate” in these treatment
courts, along with meeting other criteria for eligibility. See Treatment Courts Available in
Idaho, Idaho Supreme Court, https://isc.idaho.gov/solve-court/types. DV Court is not
classified as a treatment court: “DVCs are not specialty courts like drug courts or mental
health courts. Offenders in those courts volunteer to participate in non-conventional
procedures; DV [Court] defendants are simply assigned to DVC as part of the traditional
justice system.” Dennis Reuter, A Road to Hell: The Well-Intended Domestic Violence
Court, 59 ADVOCATE 48, 48 (2016).
Although not strictly defined as a treatment court, DV Court employs similar goals
as those of drug and mental health courts:
Domestic violence courts hold offenders accountable, increase victim safety,
provide greater judicial monitoring and coordinate information to provide
effective interaction and use of resources among the courts, justice system
personnel and community agencies. Effective case management and
coordination ensure that decisions in one (1) case do not conflict with
existing orders in other civil and criminal cases and provide courts with the
necessary information to protect victims and families.
I.C. § 32-1408(2); compare I.C. § 19-5602 (“The goals of the drug courts and mental health
courts created by this chapter are to reduce the overcrowding of jails and prisons, to reduce
alcohol and drug abuse and dependency among criminal and juvenile offenders, to hold
offenders accountable, to reduce recidivism, and to promote effective interaction and use of
8
Notably, Ada County was selected by the United States Department of Justice “to serve as a role model for
DVCs across the nation.” Dennis Reuter, A Road to Hell: The Well-Intended Domestic Violence Court, 59
ADVOCATE 48, 49 (2016).
24
resources among the courts, justice system personnel and community agencies.”). While a
DV Court is not a “treatment court” per se, the goals of Idaho’s treatment courts are
nevertheless analogous to those of DV Court. As a result, I think defendants in DV Court
should likewise have the choice to voluntarily opt in or out, as they do in Idaho’s treatment
courts. See Dennis Reuter, A Road to Hell: The Well-Intended Domestic Violence Court, 59
ADVOCATE at 52.
I believe that participation in or “transfer” to DV Court should not be compulsory,
nor should it be the decision of a prosecutor. In my view, it is solely within the province of
the sentencing judge to determine whether an offender should engage in domestic violence
programming. Requiring an offender to take part in DV Court against his or her wishes
would be futile: First, forcing a defendant to take part in a treatment program before he has
acknowledged a willingness to engage in that treatment is senseless, in my experience as a
judge who has presided for many years in both drug and mental health courts. Second, an
offender participating in programming unwillingly is unlikely to meaningfully participate,
which could also jeopardize the successful participation of others in the program. 9 An
offender’s animus to required programming would likely be obvious to other participants,
and could undermine other willing participants’ engagement.
Not only are there practical concerns with mandating an offender to participate in
DV Court, but the additional burdens of DV Court, including fees, treatment costs, and
frequent court appearances (which can easily impair one’s employment) place unique
constraints on an offender that he or she would not otherwise face if proceeded against in
criminal court. In this case, however, I agree with the majority that Ahmed was sentenced
“as a non-DVC defendant would [have been].” It is for this reason that I nevertheless
specially concur in the majority opinion. Because Ahmed failed to preserve his argument
that a prosecutor’s control over who participates in DV Court violates separation of powers
principles and entitlement to due process, I must leave for another day my objection to the
compulsory nature of Idaho’s DV Courts.
9
One of the most common forms of programming in DV Court is “group counseling.” Dennis Reuter, A Road
to Hell: The Well-Intended Domestic Violence Court, 59 ADVOCATE at 49. Group counseling, or group
therapy, often involves members of the group relying on one another for support in adopting coping strategies
for an underlying issue. See Psychotherapy: Understanding Group Therapy, AMERICAN PSYCHOLOGICAL
ASSOCIATION (Oct. 31, 2019), https://www.apa.org/topics/psychotherapy/group-therapy.
25