The STATE of Idaho, Plaintiff-Respondent, v. Linda MISSAMORE, Defendant-Appellant, 119 Idaho 27

1990 OPINION NO. 51, FILED APRIL 24, 1990, IS HEREBY WITHDRAWN AND THIS OPINION IS SUBSTITUTED THEREFOR. McDEVITT, Justice. This is an appeal from a trespassing conviction and sentence that has been affirmed by the district court and the Court of Appeals on the grounds that disputed testimony was properly admitted and that the sentence was proper and constitutionally valid. FACTS This is a case of a legal loose thread that when pulled never seemed to stop unraveling. On the evening of May 31, 1986, Linda Missamore took her dog for a walk along Hauser Lake Road.

As they headed into what had to be a typically beautiful Idaho sunset, they came upon the home of Mr. and Mrs. Schmidt. The Schmidts’ front lawn is contiguous with Hauser Lake Road. There is a strip of lawn approximately ten feet wide that lies between the gravel shoulder of Hauser Lake Road and the Schmidts’ property line. There is no fence or line of demarkation between this strip of lawn and the Schmidts’ front lawn. When Missamore and her companion reached the Schmidts’ home they apparently stopped; the reason is undisclosed. The Schmidts could see Missamore and her dog through their front window. Mrs.

Schmidt believed Missamore was on their property so she walked out and asked Missamore to leave. Missamore said that she was on county property and therefore did not have to leave. The Schmidts asked Missamore to leave a number of times; each time Missamore refused. After the last refusal, Mrs. Schmidt walked back into the house and called the sheriff. At this point, Missamore left the area. On June 4, 1986, Missamore was charged in a SWORN COMPLAINT FOR TRESPASSING in violation of I.C. § 18-7011. Missamore elected to assert her right to a jury trial.

At the beginning of the trial, the State amended the complaint and went forward under I.C. § 18-7008(8). At trial, the prosecutor asked Mr. Schmidt why he had asked Missamore to leave the property. Schmidt responded over defense counsel’s objection that, “She had no reason to come up there with her dog that I could see. She was just harassing.” Brian Sprague, a neighbor of the Schmidts’, testified over defense counsel’s objection that problems existed between the Schmidts and Missamore.

In addition to these colloquies, defense counsel objected to numerous other questions and answers during the State’s case in chief. At the conclusion of the trial the trial judge instructed the jury on trespassing as per I.C. § 18-7008(8). The jury found Missamore guilty. On January 28, 1987, the trial judge sentenced Missamore for an I.C. § 18-7011 violation, the misdemeanor that Missamore was initially charged with but not the one upon which the jury was instructed and she was convicted. Missamore received thirty days in jail, with all but five suspended, unsupervised probation for two years and a $100 fine.

Prior to imposing the sentence, the court received testimony from Mrs. Schmidt who alleged that Missamore had attempted to harass her following the trial. Missamore takes exception to the admittance of this testimony as well as testimony elicited during the presentation of the State’s case. After being sentenced, Missamore appealed to the district court claiming that the trial court admitted improper testimony, imposed too severe a sentence and erred in not instructing the jury on mistake of fact as a possible defense. The district court affirmed the magistrate.

Missamore then appealed to the Idaho Court of Appeals which affirmed the sentence and conviction. Missamore now appeals to this Court and asks us to rule that: 1. The trial court committed reversible error in allowing improper evidence into the record, thereby justifying reversal of the conviction and a new trial; 2. The trial court erred in refusing to instruct the jury on mistake of fact as a defense; and 3.

The Misdemeanor Criminal Rules sentencing guidelines deprived Missamore of her right to equal protection and the severity of Missamore’s sentence was the result of her exercising her constitutional right to a jury trial. I. Missamore argues that the trial court committed three specific evidentiary errors that provide grounds for reversal. Each assignment has been properly preserved for appeal. Missamore first argues that Mr. Schmidt’s testimony that he asked Missamore to leave the Schmidts’ property at the time of the incident in question constitutes evidence of another crime not charged. We disagree. Mr.

Schmidt’s testimony went to the incident in question and was therefore relevant. An additional crime does not arise out of a single transaction with each additional eyewitness to that transaction. Missamore next argues that the trial court erred in allowing into evidence a series of questions and answers between the prosecutor and Mr. Schmidt regarding why Mr. Schmidt asked Missamore to leave his property. Missamore claims that this dialogue was not relevant, and that Schmidt’s responses were conclusory and based on an impermissible opinion concerning Missamore’s state of mind.

Idaho Code § 18-7008(8) does not require that the owner of private property have any reason for asking trespassers to get off their land. It merely requires that the owner or authorized agent notify the transgressors that they are on private land and must leave. Persons so notified and capable of leaving must then leave. Because the owner is not required to have any reason for asking the trespasser to depart the owner’s land, the prosecutor’s question of why Mr. Schmidt asked Missamore to get off his land was irrelevant. However, the question did open the door for Mr.

Schmidt to answer that “she was just harassing.” This answer was prejudicial to Missamore. The question is whether it was sufficiently prejudicial to warrant reversal. Whether Mr. Schmidt’s response was relevant depends upon whether or not intent is an element of an I.C. § 18-7008(8) violation.

Idaho Code § 18-7008(8) requires that, “[ejvery person who willfully commits any trespass, by ... (8) ... being first notified in writing, or verbally by the owner or authorized agent of the owner of real property, to immediately depart from the same and who refuses____” Idaho Code § 18-101(1), states “[t]he word ‘willfully,’ when applied to the intent with which

an act is done or omitted, implies simply a purpose or willingness to commit the act or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.” For any act to constitute a trespass under I.C. § 18-7008(8), it must be done willfully. This means that the defendant’s “intent to violate law, or to injure another, or to acquire any advantage ...” is irrelevant. Thus, Mr. Schmidt’s response that Missamore was on the Schmidt property to harass the Schmidts was irrelevant and should have been stricken from the record. While Mr.

Schmidt’s statement was irrelevant, it was also an improper statement of a lay witness’s opinion under Idaho Rule of Evidence 701 and therefore, the trial court abused its discretion in admitting it. Generally, a trial court may allow a lay witness to state an opinion about a matter of fact within his or her knowledge, as long as two conditions are met. First, the witness’s opinion must be based on his or her perception; and second, the opinion must be helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. I.R.E. 701; accord State v.

Rosencrantz, 110 Idaho 124, 714 P.2d 93 (Ct.App.1986). The admissibility of such testimony turns upon its underlying factual basis, not the fact that it is in the format of an opinion. See Report of the Idaho State Bar Evidence Committee, comments to I.R.E. 701 at 4 (1983 and 1985 Supp.). In this case, the admission of Schmidt’s statement did not fulfill the I.R.E. 701 requirements. There is no basis for an opinion as to the motives of Missamore by Schmidt based on his observation.

In addition to being irrelevant and improper, Schmidt’s statement that Missamore was there just to harass the Schmidts was clearly prejudicial. Subsequent exchanges between the prosecutor and Mr. Schmidt, as well as another witness for the prosecution, Brian Sprague, compounded the existing fracture between relevant evidence and irrelevant prejudicial evidence. Immediately after the exchange discussed above, the prosecutor asked Mr. Schmidt, “All right, would you ... say she came on just to harass you?” Mr. Schmidt stated, “In the past, she’s drove in our driveway with her truck.” Moments later Mr.

Schmidt testified that in the past, “[wjell, she’s ... driven across the lawn____” Later, the prosecutor asked Brian Sprague, “[l]et me see, Brian, from what you know ... do you know why the defendant walked onto the Schmidts’ property?” To which Sprague replied, “Harassment. It’s been going on for a long time....” “[T]o hold an error as harmless, an appellate court must declare a belief, beyond a reasonable doubt, that there was no reasonable possibility that such evidence complained of contributed to the conviction.” State v. Sharp, 101 Idaho 498, 507, 616 P.2d 1034, 1043 (1980).

Where the admissible evidence provides, beyond a reasonable doubt, “overwhelming and conclusive” proof of a defendant’s guilt, the admission of tainted evidence will be held to be harmless error.” State v. LePage, 102 Idaho 387, 395, 630 P.2d 674, 682 (1981). “Harmless error” refers to technical errors, which do not require reversal____ “Cumulative error” refers to a number of errors which prejudice defendant’s right to a fair trial. State v.

McKenzie, 186 Mont. 481, 514, 608 P.2d 428, 448, cert. denied, 449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507 (1980). “Under the cumulative error doctrine, an accumulation of irregularities, each of which in itself might be harmless, may in the aggregate show the absence of fair trial.” State v. Campbell, 104 Idaho 705, 719, 662 P.2d 1149, 1163 (Ct.App.1983). In sum, the prosecutor’s questions and Schmidt’s and Sprague’s answers described above, were irrelevant. Schmidt’s and Sprague’s answers constituted impermissible opinions.

Because of this, we must hold, based on this record, that we are left with a reasonable doubt that the jury would have reached the same result had the error not occurred. BISTLINE and JOHNSON, JJ., concur. BAKES, C.J., and BOYLE, J., dissent. II. We affirm the trial court’s ruling that the jury should not have been instructed on mistake of fact as a defense. All that is required for an I.C. § 18-7008(8) violation is that the defendant refuse to leave property that belongs to another after being so requested by the owner or authorized agent.

Unless the defendant is incapable of leaving or has one of the other recognized excuses for “trespassing,” e.g. emergency, his or her refusal to leave constitutes trespass. BAKES, C.J., and BISTLINE, JOHNSON and BOYLE, JJ„ concur. III. Missamore’s third argument has two parts. First, Missamore argues that her right to equal protection was violated in that if she had been charged by Uniform Citation rather than Complaint she would have been exposed to a lesser sentence.

Second, she argues that the sentence she received was greater than what might have been imposed had she pled guilty, and that the sentence therefore improperly punished the exercise of the right to jury trial. We address each argument in turn. A. The sentencing scheme for an I.C. § 18-7008(8) violation is set forth in I.C. § 18-113. The maximum sentence under this

section is $300.00 and six (6) months in jail. However, where the defendant has been charged by Uniform Citation rather than Complaint a different sentencing limitation may be imposed. In that case, if the amount of bail set for the offense does not exceed $70.00, the defendant may plead guilty, pay a fine in the amount set for bail, and go free. See Misdemeanor Criminal Rules 13(a), 14(a), and 14(b)(4). The essence of Missamore’s argument is that if she had been charged by Uniform Citation her maximum punishment for a guilty plea would have been $50.00 or less, because the magistrate had set her bail at $50.00.

Instead, because she was charged by Complaint, her maximum punishment could have been $300.00 and six (6) months in jail, regardless of whether she pled guilty or was found guilty by the jury. Missamore claims that it is the discrimination created by the different sentencing schemes that deprived her of equal protection of the laws. The equal protection clause of the Fourteenth Amendment is designed to ensure that those persons similarly situated with respect to a governmental action should be treated similarly. State v. Hayes, 108 Idaho 556, 700 P.2d 959 (Ct.App.1985), rev. denied.

In an equal protection challenge, the first step is to identify the challenged classification. The court must then determine the standard of review to be applied and whether that standard has been satisfied. Tarbox v. Tax Commission, 107 Idaho 957, 695 P.2d 342 (1984). A classification must be reviewed with strict scrutiny where the distinction is based upon a suspect classification, such as nationality, Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (1948); race, Korematsu v.

United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944); or, where “fundamental rights” are involved; San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973). The strict scrutiny standard of review requires that the State bear the burden of proving not only that it has a compelling interest which justifies the classification but also that the discrimination is necessary to promote that interest. Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365 (1974); Newlan v. State, 96 Idaho 711, 535 P.2d 1348 (1975).

Where the distinction is not based upon a suspect classification and does not implicate fundamental rights, the rational basis standard of review is utilized. This standard merely requires proof that there is a rational basis for the classification which would further a legitimate state objective. Tarbox v. Tax Commission, 107 Idaho 957, 695 P.2d 342 (1984). An intermediate standard is the “means focus” test, where the court must ask “whether the legislative means substantially furthers some specifically identifiable legislative end.” Jones v. State Board of Medicine, 97 Idaho 859, 867, 555 P.2d 399, 407 (1976).

This test is applicable when the State action in question creates obviously and invidiously discriminatory classifications. Id. In this case the classification challenged under the equal protection clause is the fact that persons who are alleged to have violated the same statute may be subject to disparate treatment according to the form of the document by which they are charged. One class consists of misdemeanant who, charged by Complaint, may be sentenced up to six (6) months in jail and fined up to $300.00 whether they plead guilty or are found guilty by a jury.

The other class consists of misdemeanant who, charged by Uniform Citation (and providing that bail is set in an amount less than $70.01), may plead guilty and be sentenced a maximum of $70.00 with no risk of jail sentence. Having determined that the Misdemeanor Criminal Rules create two classes, we now address the applicable standard of review. Missamore does not allege, nor does it appear, that the different treatment accorded to misdemeanant under the current system is based upon a suspect classification. It is also apparent that fundamental rights are not implicated by the dual charging system.

The issue under the facts of this case is whether the curtailment of liberty through the possibility of a jail sentence, or deprivation of property through the imposition of a fine under the authority of criminal sentencing procedures amounts to the deprivation of a “fundamental right.” The test of whether any particular right is fundamental “lies in assessing whether there is a right ... explicitly or implicitly guaranteed by the Constitution.” San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. at 33, 93 S.Ct. at 1297, 36 L.Ed.2d 16 (1973).

The Constitution protects liberty and property only to the extent that it may not be deprived “without due process of law.” U.S. Const, amend. V. Once properly convicted, a criminal defendant has been afforded due process, and the defendant’s liberty and property are then subject to the criminal sentencing laws of the state. As long as those laws are applied in a manner consistent with constitutional guarantees, the deprivation of liberty and property are properly within the power of the state. Thus, we conclude that fundamental rights are not implicated in this case.

There is no obvious and invidious discrimination alleged that would require the intermediate “means-focus” analysis; therefore, the proper standard of review to be applied is whether there is a rational basis for the criminal sentencing procedures at issue. The State asserts that the rational basis underlying the Citation or Complaint charging option is the preservation of court resources through a simplified guilty plea and fine procedure in less serious misdemeanor cases. However, finding that a particular rational purpose is served by the challenged classification does not end our inquiry.

The asserted purpose of a challenged provision must itself be legitimate in order to serve as a valid defense to an equal protection challenge. See Shapiro v. Thompson, 394 U.S. 618, 630-34, 89 S.Ct. 1322, 1328-30, 22 L.Ed.2d 600 (1969). The decision of whether to charge a defendant by means of Citation or Complaint is a matter of prosecutorial discretion. In Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), the United States Supreme Court addressed the propriety of the exercise of prosecutorial discretion in the context of the equal protection clause.

The Court stated: [T]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of denial of equal protection were not alleged. Oyler v. Boles, 368 U.S. at 456, 82 S.Ct. at 506. See also United States v.

Batchelder, 442 U.S. 114, 124-25, 99 S.Ct. 2198, 2205 n. 9, 60 L.Ed.2d 755 (1979); Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668-69, 54 L.Ed.2d 604 (1978); United States v. Duncan, 598 F.2d 839, 869 (4th Cir.1979); U.S. v. Aleman, 609 F.2d 298, 305-06 (7th Cir.1979). Missamore cites In re Mallon, 16 Idaho 737, 102 P. 374 (1909), in support of the argument that different persons charged with the same offenses may not be subjected to different punishments without violating equal protection.

The statute at issue in that case provided for a mandatory doubling of the sentence being served as punishment for attempted escapes from prison, and gave the sentencing authority no discretion to tailor the sentence. This Court invalidated the statute under the equal protection clause, because the same act of escape by two different prisoners could result in widely disparate sentences without regard to the surrounding circumstances.

The Court stated that: While the legislature, in prescribing and fixing punishment for the crime, has very great latitude in classifying the same, still the rule is well recognized, that in making such classification it should be natural and not arbitrary, and should be made with reference to the heinousness and gravity of the act or acts made a crime, and not with matters disconnected with the crime. In re Mallon, 16 Idaho at 745, 102 P. 374. See also Ex parte Knapp, 73 Idaho 505, 254 P.2d 411 (1953). The rule of Mallon does not serve to invalidate the misdemeanor sentencing provisions at issue here.

The decision of how to charge a misdemeanant, which ultimately affects the range of possible sentences, is not made without reference to the circumstances of the prohibited act, as was the case in Mallon. The arresting officer and/or prosecutor initially determines by what means to charge the individual based upon the circumstances of the crime.

For example, a person arrested for the second time of Driving Under the Influence is more likely to be charged by Complaint, thus requiring a court appearance and enhancing the possible sentence, than a first time offender in illegal possession of one trout over the bag limit. Even if charged by Citation, whether the defendant should be entitled to plead guilty and pay a fine is further evaluated through the Misdemeanor Criminal Rules’ assessment of the seriousness of various types of misdemeanors by means of the misdemean- or bail

schedule contained in M.C.R. 13. Any misdemeanor for which bail is set in an amount greater than $70.00, regardless of the manner in which the crime is charged, precludes the opportunity to plead guilty and pay a fine. Thus, under the M.C.R. bail schedule, if the D.U.I. case and the possession of unlawfully taken trout case are both charged by Citation, the D.U.I. defendant is not eligible to plead guilty and pay a fine, while the fish and game offender may. In addition, the option to plead guilty and pay the fine is further curtailed if the case of the fish and game offender is reviewed by a judge or magistrate who, in evaluating the seriousness of the offense, chooses to ignore the bail

schedule and set bail in an amount greater than $70.00. M.C.R. 13. Thus, the availability of the guilty plea and fine option will depend on the determination as to the seriousness of the offense at several levels during the course of the prosecution, and it cannot be said that the decision of whether to charge by Citation or Complaint is arbitrary or made without reference to the heinousness and gravity of the crime. Therefore, we conclude that the dual charging system employed in misdemeanor cases is not a violation of equal protection. B.

We now address Missamore’s final argument that the sentence violated her right to jury trial. Missamore reasons that because the sentence she received was greater than what she would have received had she pled guilty, the sentence was punishment for exercising her right to a jury trial and constituted an impermissible burden on that right. We cannot accept this argument. Since Missamore was charged by a signed Complaint, the punishment she received was no more serious than what she could have received had she pled guilty.

Since she was not charged by Uniform Citation, she did not have the choice of either pleading guilty and paying a $50.00 fine or going to trial and risking a more severe sentence. Because this choice was not presented to her, she has no standing to raise the issue that the Misdemeanor Criminal Rules sentencing scheme violated her right to jury trial. Because she has no standing to raise the issue, it is not ripe for our review.

However, for the purpose of guiding the trial court on remand, we must address the issue of whether the applicable Misdemeanor Criminal Rules sentencing guidelines infringe upon a defendant’s constitutional right to a jury trial to the extent that, in certain situations, they allow for greater punishment upon a finding of guilt by jury than upon guilty by plea. We hold that the Misdemeanor Criminal Rules’ sentencing guidelines do not so infringe upon the right to a jury trial. In Corbitt v.

New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978), the United States Supreme Court held that New Jersey’s statutory sentencing scheme, whereby a life sentence is mandatory upon a jury conviction for first degree murder, but a lesser sentence is permissible upon acceptance of the defendant’s plea of nun vult or nolo contendere, was constitutionally permissible. The Court stated: Specifically, there is no per se rule against encouraging guilty pleas. We have squarely held that a State may encourage a guilty plea by offering substantial benefits in return for the plea.

The plea may obtain for the defendant not only “the possibility or certainty ... [of] a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty ...,” but also of a lesser penalty than that required to be imposed after a guilty verdict by a jury. Id. at 218-20, 99 S.Ct. at 497-98 (footnotes and citations omitted, emphasis original). While this Court has often construed the right to a jury trial under

Article 1, § 8 of the Idaho Constitution as being more generous than the same right as guaranteed by the United States Constitution and as interpreted by the United States Supreme Court, in this instance the Corbitt holding is applicable. BAKES, C.J., and JOHNSON and BOYLE, JJ., concur. . I.C. § 18-7011. Criminal trespass, a misdemeanor to go upon enclosed land of another. I.C. § 18-7008(8). Trespass defined as including being verbally notified by owner to depart; refusal to comply. I.C. § 18-113.

When no specific punishment is provided for a specific misdemeanor, the punishment county jail imprisonment not exceeding six months or by a fine not exceeding $300.00, or both. . Although under different circumstances the trial judge’s sentencing under the wrong statutory provision could certainly be detrimental to the validity of the sentence, such discrepancy is inconsequential in this case. This is because the sentencing scheme under I.C. § 18-7011 is identical to the sentencing scheme under I.C. §§ 18-7008(8) and 18-113. I.C. § 18-7008(8) does not include any sentencing provisions.

Accordingly, one who violates this code

section will be sentenced under I.C. § 18-113 which provides a sentencing schemata that is identical to that of I.C. § 18-7011.