State v. Asselin ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 46632
STATE OF IDAHO, )
) Filed: September 2, 2020
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
LINDSEY JEAN ASSELIN, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Teton County. Hon. Gregory Moeller, District Judge. Hon. Jason D. Walker,
Magistrate.
Order of the district court, on intermediate appeal from the magistrate court,
affirming denial of motion in limine, affirmed.
Lindsey Jean Asselin, Driggs, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Kacey L. Jones, Deputy Attorney
General, Boise, for respondent.
________________________________________________
GRATTON, Judge
Lindsey Jean Asselin appeals from the district court’s order affirming the magistrate
court’s denial of her motion in limine. Specifically, Asselin argues that (1) the magistrate court
abused its discretion in denying her motion in limine, (2) appointed counsel’s actions before and
during trial constituted ineffective assistance of counsel, and (3) she was denied counsel in
violation of the Sixth Amendment to the United States Constitution. For the reasons set forth
below, we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Asselin was charged with misdemeanor driving under the influence pursuant to Idaho Code
§ 18-8004. The charges arose when Teton County Officer Lemieux stopped Asselin’s vehicle
after observing her swerving in her lane and crossing the centerline twice. After stopping the
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vehicle, Officer Lemieux observed signs of intoxication, including relaxed facial muscles and
slurred speech, and Asselin admitted to having a drink at work. Officer Lemieux then had Asselin
perform field sobriety tests, which she failed. Asselin was arrested and transported to the Teton
County Sherriff’s Office. Once there, Officer Lemieux placed a new disposable mouthpiece on a
LifeLoc FC20 breathalyzer and attempted to obtain breath samples from Asselin. After blowing
five times on the same mouthpiece, three of which were insufficient, Asselin’s completed tests
measured .165 and .167 breath alcohol content.
Asselin was cited for misdemeanor driving under the influence (DUI). She was appointed
counsel by the magistrate court. Asselin’s counsel then filed a motion in limine seeking to restrict
the State’s use of the breathalyzer test, arguing that the test was invalid because a new mouthpiece
was not used for each blow. In support of her argument, Asselin cited to the Idaho State Police
Standard Operating Procedure breath test manual which states: “The operator should use a new
mouthpiece for each individual and for each series of tests.” The State did not dispute that the
same mouthpiece was used for each test, instead arguing that the manual states that a new
mouthpiece be used for hygienic reasons, and the cited provision only requires that the mouthpiece
be changed for each individual or series of tests. As Asselin’s tests were all performed on the same
individual and in the same series, there was no need to change the mouthpiece between each blow
as Asselin argued.
The magistrate court agreed with the State’s arguments, finding that the manual directed
changing the mouthpiece for hygienic reasons, and only required a change between individuals
and for each series of tests. Further finding that the State had shown that the proper testing
procedures were followed under I.C. § 18-8004(4), the magistrate court denied Asselin’s motion
in limine.
A jury found Asselin guilty of driving under the influence. Asselin’s counsel subsequently
moved to withdraw, and Asselin signed a stipulated substitution of counsel, discharging counsel
and agreeing to represent herself moving forward. Asselin filed a notice of appeal on October 19,
2015, after the jury verdict but before judgment was entered on September 14, 2016. At a hearing
prior to sentencing, Asselin again requested court-appointed counsel. The magistrate court
determined that she did not qualify as indigent, based on her reported equity of $150,000 in her
home, and denied her request.
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On pro se appeal to the district court, Asselin argued that the magistrate court abused its
discretion in denying her motion in limine, and brought up other concerns with the way DUI
investigations are conducted, including the scientific validity of the FC20 breathalyzer. As none
of these additional arguments were raised before the magistrate court, the district court found that
the only issue adequately preserved for appeal was whether the magistrate court abused its
discretion. The district court found that the magistrate acted within the bounds of its discretion
when it denied Asselin’s motion in limine. Asselin timely appeals.
II.
ANALYSIS
Asselin argues that the magistrate court abused its discretion when it denied her motion in
limine. In addition, she argues, for the first time on appeal, an ineffective assistance of counsel
claim, and that she was denied counsel in violation of the Sixth Amendment. The State denies
each of these arguments, and additionally argues that both the district court and this Court lack
jurisdiction to hear Asselin’s appeal. We will address each of these contentions below.
A. Jurisdiction
The State argues that because Asselin’s notice of appeal was filed before judgment was
entered by the magistrate court, it was not timely filed. Therefore, both the district court and this
Court lack jurisdiction to hear her appeal. Asselin argues that her filing was not untimely, but
premature, and became valid under Idaho Appellate Rule 17(e)(2) once judgment was entered.
Whether a court lacks jurisdiction is a question of law over which we exercise free review. State
v. Jones, 140 Idaho 755, 757, 101 P.3d 699, 701 (2004).
An appeal from the magistrate court to the district court may be made from the judgments
or orders listed in Idaho Criminal Rule 54(a)(1), and a notice of appeal “must be filed within 42
days from the date file stamped by the clerk of the court on the judgment or order being appealed.”
I.C.R. 54(b)(1)(A). However, I.A.R. 17(e)(2) provides, “A notice of appeal filed from an
appealable judgment or order before formal written entry of such document shall become valid
upon the filing and the placing the stamp of the clerk of the court on such appealable judgment or
order, without refiling the notice of appeal.”
Although the State is correct that Asselin’s appeal was filed before entry of a final judgment
of conviction, and not refiled within forty-two days afterward, I.A.R. 17(e)(2) provides that a
premature notice of appeal becomes valid upon the entry of final judgment without refiling. Weller
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v. State, 146 Idaho 652, 654, 200 P.3d 1201, 1203 (Ct. App. 2008). Therefore, both this Court and
the district court properly exercised jurisdiction over this appeal.
B. Motion in Limine
Asselin argues that the magistrate court abused its discretion when it denied her motion in
limine without expert testimony validating the State’s use of the FC20 breathalyzer test. The State
denies this, and additionally argues that Asselin does not adequately challenge the district court’s
intermediate appellate decision, instead only asserting that the magistrate court erred.
For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate division, this Court’s standard of review is the same as expressed by the Idaho Supreme
Court. The Supreme Court reviews the magistrate court record to determine whether there is
substantial and competent evidence to support the magistrate court’s findings of fact and whether
the magistrate court’s conclusions of law follow from those findings. State v. Korn, 148 Idaho
413, 415, 224 P.3d 480, 482 (2009). If those findings are so supported and the conclusions follow
therefrom, and if the district court affirmed the magistrate court’s decision, we affirm the district
court’s decision as a matter of procedure. Id. Thus, the appellate courts do not review the decision
of the magistrate court. State v. Trusdall, 155 Idaho 965, 968, 318 P.3d 955, 958 (Ct. App. 2014).
Rather, we are procedurally bound to affirm or reverse the decision of the district court. Id.
Accordingly, we will review the district court’s decision to determine whether it correctly
addressed the issues raised on appeal. Papin v. Papin, 166 Idaho 9, 18, 454 P.3d 1092, 1101
(2019).
Asselin’s briefing is devoid of any assertion that the district court erred, instead arguing
only that the magistrate court abused its discretion. This Court does not review the decision of the
magistrate. Id. As her briefing lacks any argument that the district court erred, we hold that
Asselin has not met her burden to show district court error.
Further, Asselin’s arguments that the magistrate court abused its discretion focus on the
scientific validity of the FC20 breathalyzer test, rather than whether a new mouthpiece was
required, as argued in her motion in limine. The district court found that any arguments regarding
the scientific validity of the FC20 breathalyzer test were not preserved, as they were not raised in
the magistrate court. A review of the record and her motion in limine confirm this finding.
Appellate court review is limited to the evidence, theories, and arguments that were presented
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below. State v. Garcia-Rodriguez, 162 Idaho 271, 275, 396 P.3d 700, 704 (2017). As this
argument was not raised below, it was not preserved and this Court will not consider the argument.
Moreover, the district court considered Asselin’s argument regarding reuse of the
breathalyzer mouthpiece and found that the magistrate court did not abuse its discretion. Trial
courts have broad discretion when ruling on a motion in limine. State v. Richardson, 156 Idaho
524, 527, 328 P.3d 504, 507 (2014). When a trial court’s discretionary decision is reviewed on
appeal, the appellate court conducts a multi-tiered inquiry to determine whether the lower court:
(1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such
discretion; (3) acted consistently with any legal standards applicable to the specific choices before
it; and (4) reached its decision by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429
P.3d 149, 158 (2018).
The magistrate court must first have recognized its discretion. A court is not required to
explicitly make a finding regarding its discretion if the record clearly shows that the court correctly
perceived the issue as one of discretion. State v. Le Veque, 164 Idaho 110, 114, 426 P.3d 461, 465
(2018). Here, it is clear from the record that the magistrate court recognized its discretion to deny
Asselin’s motion in limine. The magistrate court also acted within the bounds of their discretion.
Denying a motion in limine is within the bounds of a trial court’s discretion. Richardson, 156
Idaho at 527, 328 P.3d at 507.
The magistrate court also acted consistently with any applicable legal standards, and
reached its decision by an exercise of reason. Here, the magistrate court correctly identified the
legal standards for admitting a breath test at trial, requiring that the State “establish that the
administrative procedures, which ensure the reliability of the test, have been met.” State v. Healy,
151 Idaho 734, 736, 264 P.3d 75, 77 (Ct. App. 2011). The magistrate court considered Asselin’s
argument that the Idaho State Police Standard Operating Procedures manual required that the
mouthpiece be changed between each blow and found, based on the plain language, that a new
mouthpiece was only required for each series of tests. Further finding that the State laid an
adequate foundation through the calibration of the breathalyzer and Officer Lemieux’s certification
as a breath test operator, the magistrate court denied Asselin’s motion in limine. The magistrate
court applied correct legal standards and acted consistently with the applicable law and facts
presented to it. For these reasons, we affirm the district court’s finding that the magistrate court
did not abuse its discretion.
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C. Ineffective Assistance of Counsel
Asselin argues, for the first time on appeal, that her attorney’s failure to raise arguments as
to the scientific validity of the FC20 breathalyzer and to call an expert witness constitute
ineffective assistance of counsel. Generally, issues not raised below may not be considered for
the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Asselin
did not raise this issue on appeal to the district court, therefore this claim is unpreserved and will
not be considered by this Court.
Moreover, we do not ordinarily address claims of ineffective assistance of counsel on direct
appeal because the record is rarely adequate for review of such claims. Sparks v. State, 140 Idaho
292, 296, 92 P.3d 542, 546 (Ct. App. 2004); State v. Hayes, 138 Idaho 761, 766, 69 P.3d 181, 186
(Ct. App. 2003). The resolution of factual issues for the first time on appeal, based upon a trial
record in which competence of counsel was not at issue, is at best conjectural. State v. Doe, 136
Idaho 427, 433, 34 P.3d 1110, 1116 (Ct. App. 2001). Such claims are more appropriately presented
through post-conviction relief proceedings where an evidentiary record can be developed. State
v. Mitchell, 124 Idaho 374, 376, 859 P.2d 972, 974 (Ct. App. 1993).
D. Deprivation of Counsel
As noted above, Asselin claims that she was deprived counsel in violation of the Sixth
Amendment for sentencing and her appeal. The State argues that Asselin elected to represent
herself when she signed a stipulated substitution of counsel and agreed to discharge her attorney,
and that she was not entitled to court-appointed counsel after the magistrate court found that she
was not indigent.
Asselin’s Sixth Amendment argument was not raised at any point below. Generally, issues
not raised below may not be considered for the first time on appeal. Fodge, 121 Idaho at 195, 824
P.2d at 126. However, when a defendant alleges that a constitutional error occurred at trial and
the alleged error was not followed by a contemporaneous objection, the claim of error must be
reviewed under the fundamental error doctrine. State v. Miller, 165 Idaho 115, 119, 443 P.3d 129,
133 (2019). Claims of error made during sentencing may also be reviewed for fundamental error.
State v. Rollins, 152 Idaho 106, 111, 266 P.3d 1211, 1216 (Ct. App. 2011). In order to obtain relief
under the fundamental error doctrine, the defendant must demonstrate three things. First, the
defendant must show that one or more of the defendant’s unwaived constitutional rights were
violated. Id. Second, the error must be clear and obvious, meaning the record must demonstrate
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evidence of the error and evidence as to whether or not trial counsel made a tactical decision in
failing to object. Id. Third, the defendant must demonstrate that the error affected the defendant’s
substantial rights, which means the error identified in the first and second prongs of the test actually
affected the outcome of the trial. Id. at 119-20, 443 P.3d at 133-34.
A criminal defendant has a constitutional right to the assistance of counsel at all critical
stages of the criminal process, and indigent criminal defendants are guaranteed the right to
appointed counsel. Gideon v. Wainwright, 372 U.S. 335, 345 (1963); State v. Blevins, 108 Idaho
239, 241-42, 697 P.2d 1253, 1255-56 (Ct. App. 1985). An accused also has the right to waive the
assistance of counsel and to represent himself or herself. See Faretta v. California, 422 U.S. 806,
835 (1975); State v. Averett, 142 Idaho 879, 885, 136 P.3d 350, 356 (Ct. App. 2006).
Asselin was initially appointed counsel, and was represented through trial. After trial, the
record indicates that Asselin signed a stipulated substitution of counsel, agreeing to discharge
counsel and represent herself moving forward. Asselin now argues that she did not intend to
represent herself. It is the responsibility of the appellant to provide a sufficient record to
substantiate his or her claims on appeal. State v. Murinko, 108 Idaho 872, 873, 702 P.2d 910, 911
(Ct. App. 1985). In the absence of an adequate record on appeal to support the appellant’s claims,
we will not presume error. State v. Beason, 119 Idaho 103, 105, 803 P.2d 1009, 1011 (Ct. App.
1991). Based on the record, Asselin expressed dissatisfaction with her counsel’s performance, and
elected to represent herself, invoking her right to do so. Under the facts in the record, there was
no violation of Asselin’s right to counsel, and therefore no fundamental error.
In addition, even had Asselin not elected to proceed without counsel, she was not denied
counsel at sentencing or on appeal. After discharging counsel, Asselin requested a public defender
at a hearing prior to her sentencing date. The magistrate court questioned her to determine whether
she qualified as indigent. Asselin told the court that she had $150,000 of equity in her home, which
led the magistrate court to find that she did not qualify as indigent. The magistrate court determines
whether a person seeking court-appointed counsel is indigent, and “may consider such factors as
income, property owned, outstanding obligations, the number and ages of his dependents and the
cost of bail.” I.C. § 19-854(3). Asselin makes no argument that the magistrate court’s finding on
this matter is incorrect. There was nothing preventing Asselin from obtaining independent counsel
for sentencing and her appeal. For these reasons, we hold that Asselin’s Sixth Amendment rights
were not violated and no fundamental error exists.
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III.
CONCLUSION
The district court did not err by finding that the magistrate court did not abuse its discretion
in denying Asselin’s motion in limine, and Asselin’s right to counsel was not violated. Therefore,
we affirm the district court’s decision.
Chief Judge HUSKEY and Judge BRAILSFORD CONCUR.
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