State v. Paschane

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket Nos. 47697/48322/48323/48324

STATE OF IDAHO, )
) Filed: November 23, 2021
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
JESSE ANDREW PASCHANE, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Cynthia K.C. Meyer, District Judge.

Appeals in Docket Nos. 48323 and 48324 for aggravated assault, attempted
strangulation, and two counts of delivery of a controlled substance, dismissed;
judgments of conviction in Docket Nos. 47697 and 48322 for aggravated assault
and possession of a controlled substance with intent to deliver, affirmed.

Vieth Law Offices, Chtd.; Nicolas V. Vieth, Coeur d’Alene, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
General, Boise, for respondent.
________________________________________________

HUSKEY, Chief Judge
Jesse Andrew Paschane appeals from his judgments of conviction in: (1) Docket
No. 47697 for aggravated assault, Idaho Code §§ 18-901, 19-2520, 18-905; (2) Docket No. 48322
for possession of a controlled substance with intent to deliver, I.C. § 37-2732(a)(1)(A); (3) Docket
No. 48323 for aggravated assault, I.C. §§ 18-901, 19-2520, 18-905, and attempted strangulation,
I.C. § 18-923; and (4) Docket No. 48324 for two counts of delivery of a controlled substance, I.C.
§ 37-2732(a)(1). The appeals in Docket Nos. 48323 and 48324 are dismissed and the judgments
of conviction in Docket Nos. 47697 and 48322 are affirmed.

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I.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal arises out of four consolidated criminal cases. In the first case, Officer
Hutchison was conducting undercover surveillance in an unmarked car on the street where
Paschane lived. While Paschane was driving down the street with his friend Popp, Paschane
noticed Officer Hutchison’s car. Paschane parked and both he and Popp approached Officer
Hutchison’s car on foot. Paschane began to question Officer Hutchison about his presence on the
street. Because Officer Hutchison was not dressed in uniform and his car was unmarked, Paschane
was unaware that Hutchison was a police officer. When Paschane continued to question Officer
Hutchison about his presence, Officer Hutchison got out of his car. While Officer Hutchison was
getting out of the car, Paschane drew a gun from his waistband, and pointed the gun at Officer
Hutchison. Paschane subsequently realized that Officer Hutchison was an officer and dropped his
gun. As a result of this altercation, in Docket No. 47697, the State charged Paschane with one
count of aggravated assault with a sentencing enhancement for using a deadly weapon.
About a week later, Paschane’s girlfriend reported that Paschane strangled her and held a
long, black gun to her head. The State charged Paschane with aggravated assault and attempted
strangulation with a sentencing enhancement for using a deadly weapon in Docket No. 48323.
Based on the allegations from Paschane’s girlfriend, officers obtained a warrant to search
Paschane’s home for evidence of the assault. The search warrant allowed officers to search
Paschane’s home for: “Firearms, ammunition, and any evidence to establish ownership (for
example: utility bills/statements, registrations, driver’s licenses, mail, receipts, insurance
documents, etc.) of property.” While executing the search, officers found multiple guns,
ammunition, and a large safe, measuring four and one-half to five feet tall. Due to its size, the
officers believed the safe was a gun safe.
Officers attempted to open the safe during the search of Paschane’s home. Although the
officers were unable to get it fully open, they saw what they believed to be boxes of ammunition
inside the safe. The officers seized the safe and took it to the police department where they were
able to fully open it. Inside the safe, officers found ammunition and a white, powder substance
that was later determined to be cocaine. As a result, the State charged Paschane with trafficking
in a controlled substance (cocaine) in Docket No. 48322.

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Paschane filed a motion to suppress the cocaine found during the search of the safe, arguing
because the search of the safe was conducted at the police department, not at his home, the search
was not conducted pursuant to the original search warrant. After a suppression hearing, the district
court found “the off-site search of the safe was within the scope of the search warrant and it would
have been superfluous to obtain a second search warrant.” Accordingly, the district court denied
the motion to suppress.
While the above cases were pending, Paschane sold cocaine and methamphetamine to a
confidential informant. The State charged Paschane with two counts of delivery of a controlled
substance in Docket No. 48324.
Paschane entered into an Idaho Criminal Rule 11(f)(1)(C) plea agreement with the State to
resolve Docket Nos. 47697 and 48322.1 The Rule 11 plea agreement provided, in relevant part,
that Paschane would plead guilty to an amended charge of possession of a controlled substance
with the intent to deliver in Docket No. 48322 and to aggravated assault in Docket No. 47697 and
the State would dismiss the deadly weapon enhancement. In exchange for Paschane’s guilty pleas,
the parties agreed that on each charge, the district court would impose a unified sentence of five
years, with two years determinate, with ninety days jail, the sentences would run currently, and
the sentences would be suspended for a period of three years. Pursuant to the Rule 11 plea
agreement, Paschane pled guilty to possession of a controlled substance with intent to deliver and
aggravated assault. The district court ordered a presentence investigation report (PSI). After
reviewing the PSI and the proposed sentences, the district court informed the parties that it would
not follow the Rule 11 plea agreement because it did not want to be bound by the agreement to
suspend the sentences. The district court rejected the Rule 11 agreement, reinstated Paschane’s
not-guilty pleas, and set the cases for trial.
Paschane proceeded to trial on the aggravated assault charge in Docket No. 47697. Officer
Hutchison, Popp, and Paschane testified. Although Paschane requested a self-defense jury
instruction, the district court rejected the request, finding the instruction was not supported by a
reasonable view of the evidence. The jury found Paschane guilty of aggravated assault, and
Paschane subsequently admitted to using a deadly weapon in the commission of the aggravated

1
The plea agreement included a misdemeanor case that is not before this Court on appeal.

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assault. The district court sentenced Paschane to a unified sentence of ten years, with two years
determinate.
Paschane subsequently resolved the other three outstanding cases by entering Alford 2 pleas
to the charges in Docket No. 48323 (aggravated assault and attempted strangulation, with a deadly
weapon enhancement); Docket No. 48322 (possession of a controlled substance with intent to
deliver); and the amended charges in Docket No. 48324 (two counts of delivery of a controlled
substance). The district court sentenced Paschane to unified sentences of twelve years, with four
years determinate, on each of the charges, with the sentences to run concurrently with each other
and the sentence in Docket. No. 47697. Paschane timely appeals.
II.
ANALYSIS
Paschane argues the district court erred in failing to comply with the requirements of
I.C.R. 11(f)(4) in rejecting the Rule 11 plea agreement, denying the motion to suppress, and
rejecting the self-defense jury instruction. In response, the State argues the district court did not
err in any determination and that Paschane waived some of his claims.
A. Paschane Waived His Challenge to the District Court’s Rejection of the Rule 11 Plea
Agreement in Docket Nos. 47697 and 48322
Paschane argues that when the district court rejected the Rule 11 plea agreement
encompassing Docket Nos. 47697 and 48322, the court was required to advise him of the three
options available: (1) maintain his guilty plea in the absence of a sentencing agreement;
(2) withdraw his guilty plea and pursue a new plea agreement with the State; or (3) withdraw his
guilty plea and exercise his right to a jury trial. Paschane alleges that because the district court did
not advise him of these options and forced him to proceed to trial, the court erred. In response, the
State argues that Paschane’s challenge is unpreserved because he did not raise the issue below and
because he did not allege it constituted fundamental error on appeal. Alternatively, the State
asserts the district court did not err.
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). The Idaho Supreme Court recently held
that in order to preserve an issue for appellate review, not only must “the issue and the party’s
position on the issue” be raised before the trial court, but the party must also allege facts, apply

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See North Carolina v. Alford, 400 U.S. 25 (1970).
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relevant law to the facts, and state a conclusion in the court below. State v. Randall, ___ Idaho
___, ___, ___ P.3d ___, ___ (Oct. 5, 2021) (holding while brief opposing motion to suppress
alleged facts and stated conclusion, it did not support conclusion by applying law to facts and
therefore issue was not raised to trial court); see also State v. Wilson, ____ Idaho ___, ___, ___
P.3d ___, ___ (Sept. 27, 2021) (reiterating preservation requirements and holding appellate
argument was unpreserved because State implicitly conceded below what it tried to argue on
appeal).
In this case, at the initial sentencing hearing, the district court notified the parties that it
was uncomfortable with the Rule 11 plea agreement and postponed the sentencing for further
consideration. The State subsequently filed a motion to set aside the guilty pleas and set the cases
for trial. At the rescheduled sentencing hearing, Paschane objected to the State’s motion to set the
matter for trial before the district court expressly ruled on whether it was accepting or rejecting the
Rule 11 plea agreement. During the hearing, the parties offered arguments addressing the district
court’s concerns about the Rule 11 plea agreement. The State argued the district court should not
follow the Rule 11 plea agreement if the court did not want to do so and Paschane’s trial counsel
explained why the court should accept the agreement and proceed to sentencing pursuant to its
terms. The district court concluded that based on the facts of the case, it was not going to accept
the Rule 11 plea agreement. Accordingly, the district court rejected the Rule 11 plea agreement
and stated: “So with that, Mr. Paschane, I’m going to give you back your guilty plea, and I will
enter not guilty pleas for you to the cases. We’ll go ahead and set out the two felony cases for
trial.”
Although Paschane argued the district court should not reject the Rule 11 plea agreement
and should go forward with the sentencing based on the terms of the plea agreement, Paschane did
not object to withdrawing his guilty pleas and resetting the cases for trial, did not argue he should
be permitted to proceed to sentencing without the negotiated sentencing agreement, or that the
district court was required to give Paschane options before resetting the cases for trial. In fact,
when the district court stated, “We’ll go ahead and set out the two felony cases for trial. I’m
assuming those would be separate trials,” Paschane’s attorney responded, “Yes, Judge.”
Paschane’s argument that the district court did not provide him with options prior to setting
the case for trial is not preserved for appeal because he did not raise the issue, state his position on
the issue, or make argument supported by facts, law, and a conclusion, to the district court. As

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Paschane has not argued any unobjected to error constituted fundamental error on appeal, his
challenge to the district court’s actions after rejecting the Rule 11 plea agreement is not preserved
either as a claim of objected to error or a claim of unobjected to error. Consequently, the issue is
not properly before this Court, and we decline to consider it.
B. The District Court Did Not Err in Denying Paschane’s Self-Defense Instruction in
Docket No. 47697
Paschane argues the district court erred in rejecting his proposed self-defense instruction
in Docket No. 47697 because the instruction met the four requirements for giving such an
instruction. Whether the jury has been properly instructed is a question of law over which we
exercise free review. State v. Severson, 147 Idaho 694, 710, 215 P.3d 414, 430 (2009). When
reviewing jury instructions, we ask whether the instructions as a whole, and not individually, fairly
and accurately reflect applicable law. State v. Bowman, 124 Idaho 936, 942, 866 P.2d 193, 199
(Ct. App. 1993).
Idaho Code Section 19-2132(a) requires that the trial court must provide to the jury “all
matters of law necessary for their information” and must give a requested jury instruction if it
determines that instruction to be correct and pertinent. Under a four-part test, a requested
instruction must be given where: (1) it properly states the governing law; (2) a reasonable view of
the evidence would support the defendant’s legal theory; (3) it is not addressed adequately by other
jury instructions; and (4) it does not constitute an impermissible comment as to the evidence. State
v. Fetterly, 126 Idaho 475, 476-77, 886 P.2d 780, 781-82 (Ct. App. 1994); see also State v.
Evans, 119 Idaho 383, 385, 807 P.2d 62, 64 (Ct. App. 1991). To meet the second prong of this
test, the defendant must present at least some evidence supporting his theory, and any support will
suffice as long as his theory comports with a reasonable view of the evidence. State v. Garner,
159 Idaho 896, 898, 367 P.3d 720, 722 (Ct. App. 2016). In other words, a defendant must present
facts to support each element of a prima facie case for each defense. State v. Camp, 134 Idaho
662, 665-66, 8 P.3d 657, 660-61 (Ct. App. 2000). If the defendant fails to provide evidence
supporting any one of the necessary elements of a defense, he fails to meet his burden and is not
entitled to have the jury instructed on that defense. Garner, 159 Idaho at 898, 367 P.3d at 722. In
order to justify a self-defense instruction, a defendant must present sufficient evidence such that a
reasonable view of the evidence would support his theory of self-defense; i.e., that he “reasonably
believed he was in imminent danger of bodily harm and that he reasonably believed the force used

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was necessary to repel the victim’s attack.” State v. Iverson, 155 Idaho 766, 772, 316 P.3d 682,
688 (Ct. App. 2014).
During trial, Officer Hutchison testified that while he was conducting undercover
surveillance, Paschane drove by and noticed Officer Hutchison’s car. Officer Hutchison recalled
Paschane subsequently parked in the middle of the road and approached Officer Hutchison’s car
in an aggressive and confrontational manner. Paschane was yelling and cursing, demanding to
know why Officer Hutchison was there. Officer Hutchison explained that Paschane and Popp
positioned themselves in a way that made him feel trapped; he looked for a way of escape, but
believed he could not drive away without hitting either of the men or putting himself in a more
dangerous position. Officer Hutchison stated he briefly spoke to Paschane while remaining inside
his vehicle, but as Paschane continued to yell aggressively, Officer Hutchison believed this course
of action was ineffective. Officer Hutchison started to get out of his car and when he opened his
door, Paschane pulled a pistol out of his waistband and, using a “firing grip,” pointed the gun at
Officer Hutchison’s legs. Officer Hutchison stated he was fearful as he believed a shot to his legs
had the potential to be career- or life-ending.
Paschane’s and Popp’s trial testimony varied significantly from Officer Hutchison’s
testimony and, at times, were themselves inconsistent. However, Paschane and Popp largely
described the same series of events. Paschane described the circumstances leading up to him
confronting Officer Hutchison as follows. Paschane testified that in the weeks before his encounter
with Officer Hutchison, he noticed vandalism on his property; his cars had been keyed and trash
appeared in his yard. While Paschane testified that these events correlated with witnessing Officer
Hutchison’s car drive by his house multiple times, when he saw the car drive past that night, he
“didn’t think much of it” and just “wanted to go to Taco Bell.” When Paschane left to go to Taco
Bell, he recalled that it was very dark outside, with a scattering of street lights. As he began to
drive, Paschane noticed Officer Hutchison’s car parked. Paschane pulled over, rolled down his
window, and asked Officer Hutchison, in a normal and casual way, why he was there.
In spite of the recent allegations of vandalism on his property, Paschane’s assessment at
the time was that it was “very likely” that Officer Hutchison was one of his neighbors with a new
car. Paschane testified at the time he approached Officer Hutchison’s car he was “scared,
concerned, excited if it was maybe my new neighbor who got a nice new car.” Paschane stated
that in response to his inquiries, Officer Hutchison rolled down his car window a couple of inches,

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did not say anything, and then rolled the window back up. Paschane said that he then turned around
to go back to his car to continue to Taco Bell when he heard Officer Hutchison’s car door open.
Paschane testified that as he turned back around, he saw Popp stumble backwards. Paschane
explained that, at the time Officer Hutchison’s door opened, Paschane believed he was in imminent
danger of physical harm and “pulled his gun because someone opened their door” and “knocked
back my friend.”
Paschane argues that in light of this testimony, he met the requirements for the self-defense
instruction. Specifically, under the second prong of the test, Paschane argues that a reasonable
view of the evidence supports the self-defense instruction because: (1) the confrontation occurred
at dusk or night; (2) there was a history of cars driving by Paschane’s home multiple times;
(3) Officer Hutchison was in an unmarked, undercover car; (4) Paschane and Popp were yelling
and upset during their confrontation with Officer Hutchison; (5) it was a tense situation; (6) Officer
Hutchison felt he had to get out of his car; (7) Officer Hutchison felt trapped; (8) when Officer
Hutchison opened his door, Paschane had his back turned and “threw [his] hands up in the air”;
and (9) Popp raised up his hands in fear.
Although Paschane lists the above evidence to support his argument that a reasonable view
of the evidence supports a self-defense instruction, some of those pieces of evidence are not
relevant to this analysis and the remaining evidence does not justify a self-defense instruction.
First, Paschane provided no authority that would permit him to adopt Officer Hutchison’s
subjective fears and beliefs as the basis for his own fear. Thus, Officer Hutchinson’s subjective
fears do not inform us whether Paschane reasonably believed he was in imminent danger of bodily
harm and that pointing a gun at the officer was a reasonable use of force.
Second, Paschane’s assertions that his and Popp’s testimony that they held their hands up
at various points throughout the encounter supports the self-defense instruction are irrelevant.
Popp testified that he put his hands up in the air after Paschane and Officer Hutchison drew their
guns. Because Popp raised his hands after Paschane drew his gun, Popp’s actions are not relevant
to explain Paschane’s subjective belief and actions that occurred prior to Popp’s actions.
Paschane’s testimony about raising his hands was not connected to an assertion of fear, but
rather to Paschane’s frustration at not getting a response from Officer Hutchison and Paschane’s
plan to abandon the encounter. Although the transcript indicates that Paschane gave a
demonstration of how he put his hands in the air, it is impossible to reconstruct this demonstration

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from the appellate record. However, from context, we can determine that at the time Paschane put
his hands up, Officer Hutchison was still in his car and Paschane was leaving the scene to go to
Taco Bell. Accordingly, it appears Paschane’s testimony that he threw his hands in the air at that
moment related to a feeling of frustration, not fear of an imminent attack.
Taking all the evidence together, the district court was left with evidence that Paschane
saw Officer Hutchison’s car parked on his street; it was at dusk or night; Paschane approached the
car inquiring why Officer Hutchison was there; Paschane engaged Officer Hutchison in
conversation; Officer Hutchison eventually began to get out of his car; and once Paschane heard
the car door open, he pulled out his gun and aimed it at Officer Hutchison.
Although Paschane testified that he feared for his life when he heard the car door open and
saw his friend stumble after being knocked back by the door, a reasonable view of the evidence
does not support a conclusion that Paschane reasonably feared an imminent attack and that pulling
out a gun and pointing it at Officer Hutchinson was reasonably necessary force. Accordingly,
Paschane did not establish that the self-defense jury instruction met the four-part test for
determining whether a requested instruction should be given, and the district court did not err in
declining to give the instruction.
C. Paschane Waived His Challenge to the Denial of His Motion to Suppress in Docket
No. 48322
Paschane alleges the district court erred by denying his motion to suppress the evidence
found during the search of his safe in Docket No. 48322. Paschane argues the search warrant did
not provide probable cause to search the safe because it “did not authorize the searching of or the
seizure of locked containers that could ‘potentially’ contain firearms or ammunition.”
Paschane waived any challenge to the district court’s denial of the motion to suppress by
entering an unconditional guilty plea to the possession of a controlled substance charge.
Ordinarily, if a defendant voluntarily and knowingly enters a guilty plea, the plea is both
conclusive as to the defendant’s guilt and waives all non-jurisdictional defects in prior proceedings
against the defendant. Clark v. State, 92 Idaho 827, 832, 452 P.2d 54, 59 (1969). However, a
defendant may preserve such defects or issues by entering a conditional guilty plea pursuant to
I.C.R. 11(a)(2). That rule provides:
With the approval of the court and the consent of the prosecuting attorney, a
defendant may enter a conditional plea of guilty, reserving in writing the right, on
appeal from the judgment, to review any specified adverse ruling. If the defendant
prevails on appeal, the defendant must be allowed to withdraw defendant’s plea.
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It is uncontested that Paschane entered an unconditional guilty plea to the possession of a
controlled substance charge. Although the transcripts of the change of plea hearing are not in the
appellate record,3 the minutes do not reflect that there was a written plea agreement between the
parties, much less one that preserved Paschane’s right to appeal from the denial of his motion to
suppress. Further, at the sentencing hearing the State acknowledged that Paschane did not have
an agreement with the State, stating: “[t]he other thing that I think is important for the Court to
note is that he took responsibility for everything. He pled guilty straight up with no plea agreement
to all the charges.” Paschane did not dispute this statement during his sentencing argument.
Finally, on appeal, Paschane concedes that he did not reserve the right to appeal the denial of his
motion to suppress. In his reply brief, Paschane asserts in the relevant heading that he “ENTERED
UNCONDITIONAL, NOT CONDITIONAL, PLEAS” and later substantively argues that “Rule
11(a)(2)’s requirements are for ‘a conditional plea,’ not the unconditional guilty pleas he
previously entered. . . . Put another way, this plea was straight up and without an agreement as to
disposition from either side.” Accordingly, Paschane’s challenge was not preserved before the
district court and is waived on appeal.
D. The Appeals in Docket Nos. 48323 and 48324 are Dismissed
Paschane filed notices of appeal in Docket Nos. 48323 and 48324. Those cases were joined
with Docket No. 47697 for purposes of appeal. However, Paschane makes no argument on appeal
as it relates to his convictions in either Docket No. 48323 or Docket No. 48324. Because Paschane
alleges no error, there are no claims before this Court in either case. Consequently, we dismiss the
appeals in those cases.
III.
CONCLUSION
First, Paschane waived any claim that the district court erred in rejecting the plea
agreement, withdrawing Paschane’s guilty pleas, and setting the cases for trial. Second, a
reasonable view of the evidence presented during the trial for the aggravated assault charge does
not support a self-defense instruction. Third, Paschane entered an unconditional guilty plea to

3
It is the responsibility of the appellant to provide a sufficient record to substantiate his
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).

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possession of a controlled substance with intent to deliver, and as such his challenge to the district
court’s denial of his motion to suppress is waived. Finally, because Paschane did not raise any
issues related to his judgments of conviction in Docket Nos. 48323 and 48324, those appeals are
dismissed. The judgments of conviction in Docket Nos. 47697 and 48322 are affirmed.
Judge GRATTON and Judge LORELLO CONCUR.

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