Lee v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 48848

RONALD LEWIS LEE, JR., )
) Filed: August 19, 2022
Petitioner-Appellant, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
STATE OF IDAHO, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Respondent. )
)

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Power
County. Hon. Rick Carnaroli, District Judge.

Judgment dismissing petition for post-conviction relief, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Ben P. McGreevy, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kacey L. Jones, Deputy Attorney
General, Boise, for respondent.
________________________________________________

LORELLO, Chief Judge
Ronald Lewis Lee, Jr., appeals from the judgment dismissing his petition for post-
conviction relief. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Lee was found guilty of aggravated battery following a jury trial in an underlying criminal
case. Lee appealed, and this Court affirmed his judgment of conviction and sentence in an
unpublished opinion. State v. Lee, Docket No. 46104 (Ct. App. June 3, 2019). Lee filed a pro se
petition for post-conviction relief and, after being appointed counsel, amended his petition to allege
five instances of ineffective assistance of trial counsel.

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The case proceeded to an evidentiary hearing. Relevant to this appeal, Lee alleged that his
trial counsel was ineffective “by failing to take proper action to obtain discovery and/or
exculpatory material from the State” and “by not seeking sanctions from the State regarding the
use of evidence presented at trial.” At the beginning of the hearing, the parties stipulated to the
district court “tak[ing] judicial notice of the underlying criminal case.” Lee then testified on his
own behalf. According to Lee, his trial counsel received supplemental discovery from the State
one day before trial. This discovery consisted, in part, of an officer’s supplemental report and
video footage from the officer’s bodycam and dashcam. After Lee presented his case-in-chief, the
State moved “under [I.R.C.P.] 12(b)(6) to dismiss” Lee’s petition, which the State believed was
“appropriate under Idaho Code [Section] 19-4907” and “the provisions of that code” that allow for
“summary dismissal.” The district court took the motion to dismiss under advisement, with the
plan to continue the hearing at a later date should the district court deny the motion. The district
court granted the motion to dismiss and entered judgment dismissing Lee’s petition for post-
conviction relief. Lee appeals.
II.
STANDARD OF REVIEW
When reviewing a decision granting a motion to dismiss under I.R.C.P. 41(b)(2),1 an
appellate court will not disturb the district court’s factual findings unless they are clearly
erroneous. Rome v. State, 164 Idaho 407, 412, 431 P.3d 242, 247 (2018). The credibility of the
witnesses, the weight to be given to their testimony, and the inferences to be drawn from the

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Although the State characterized its motion to dismiss as “under [I.R.C.P.] 12(b)(6)” and
the rules for “summary dismissal,” the State also asserted that Lee “failed to present adequate
evidence to support a claim.” Weighing the evidence presented at trial is not the proper analysis
for an I.R.C.P. 12(b)(6) motion or a motion for summary dismissal. See Von Lossberg v. State,
170 Idaho 75, 79, 506 P.3d 251, 255 (2022); Pomrenke v. State, 169 Idaho 474, 478, 497 P.3d 548,
552 (Ct. App. 2021). Such weighing is, however, appropriate for a motion under I.R.C.P. 41(b)(2),
which permits a defendant to “move for a dismissal on the ground that upon the facts and the law
the plaintiff has shown no right to relief” after the plaintiff’s case-in-chief. Following such a
motion, the district court “may then determine the facts” and decide the motion. I.R.C.P. 41(b)(2).
Because the State asked the district court to weigh the evidence, we construe the motion as one
under I.R.C.P. 41(b)(2). See Rome v. State, 164 Idaho 407, 411-12, 431 P.3d 242, 246-47 (2018)
(applying an I.R.C.P. 41(b) standard of review to a motion for directed verdict because a motion
for directed verdict is inappropriate when the trial court is the trier of fact).

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evidence are all matters solely within the province of the district court. See Dunlap v. State, 141
Idaho 50, 56, 106 P.3d 376, 382 (2004). We exercise free review of the district court’s application
of the relevant law to the facts. See Baxter v. State, 149 Idaho 859, 862, 243 P.3d 675, 678 (Ct.
App. 2010).
III.
ANALYSIS
Lee asserts error in several of the district court’s factual findings and argues that, as a result,
the district court erred in dismissing his petition. The State responds that Lee failed to provide an
adequate record for appeal, precluding review of his challenges to the district court’s factual
findings. The State also responds that, even if the findings are erroneous, Lee failed to show his
trial counsel provided ineffective assistance of counsel or that Lee was prejudiced by his trial
counsel’s actions, rendering any factual errors harmless. In reply, Lee asserts it was
“inappropriate” for the district court to take “judicial notice of ‘the entire criminal file’” even
though he stipulated to the court doing so. Although some of district court’s findings are clearly
erroneous, we affirm because Lee has failed to show the errors affected his substantial rights.
We begin with Lee’s contention that the district court’s judicial notice of the underlying
criminal case was “inappropriate.” Lee concedes that “the doctrine of invited error” prevents him
from challenging the district court’s judicial notice of the underlying criminal case but,
nonetheless, contends that the manner of taking judicial notice was “inappropriate” because the
district court took judicial notice of the entire criminal file rather than specifically noting which
documents were being noticed. Even if the doctrine of invited error does not preclude Lee from
challenging the manner (as opposed to the decision) of taking judicial notice, he failed to preserve
this issue for appeal. Although a trial court is required to specify what documents are being
judicially noticed, a party’s failure to object to the manner of taking judicial notice forfeits the
issue on appeal. See McKinney v. State, 162 Idaho 286, 290 n.2, 396 P.3d 1168, 1172 n.2 (2017);
Chaput v. State, 168 Idaho 774, 777-78, 487 P.3d 366, 369-70 (Ct. App. 2021). Lee did not object
to the district court taking judicial notice of the entire underlying criminal case without identifying
specific documents, thereby forfeiting consideration of this issue on appeal. Consequently, we
will not consider Lee’s argument that the district court inappropriately took judicial notice of the
underlying criminal case.

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Next we address the State’s argument that Lee failed to provide an adequate record for
appeal. It is the responsibility of the appellant to provide a sufficient record to substantiate his or
her claims on appeal. Lake v. State, 124 Idaho 259, 261, 858 P.2d 798, 800 (Ct. App. 1993). In
the absence of an adequate record on appeal to support the appellant’s claims, we will not presume
error. Rome, 164 Idaho at 419, 431 P.3d at 254. Lee and the State stipulated to the district court
“tak[ing] judicial notice of the underlying criminal case,” and the district court indicated that it
would “read through that entire criminal file” before issuing a decision.2 The record on appeal
contains a few documents from the underlying criminal case but not the entire record.
Consequently, we will not presume error in any challenged finding that could be supported by the
missing portions of the record.
Lee’s petition for post-conviction relief alleged, in relevant part, that his trial counsel was
ineffective “by failing to take proper action to obtain discovery and/or exculpatory material from
the State” and “by not seeking sanctions from the State regarding the use of evidence presented at
trial.” To prevail on an ineffective assistance of counsel claim, the petitioner must show that the
attorney’s performance was deficient and that the petitioner was prejudiced by the deficiency.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578, 580, 181 P.3d
504, 506 (Ct. App. 2007). The district court found that, “based on Lee’s testimony and affidavits,
the State disclosed additional video footage to defense counsel a few days prior to trial.” The
district court further found that “Lee also testified that he was informed the State was barred from
using the evidence because of the late disclosure, but [his] counsel was free to introduce it at trial.”
The district court held that Lee failed to prove either Strickland prong. First, the district court
concluded that Lee’s trial counsel was not ineffective because “the State was sanctioned” and “was
prohibited from using the video footage.” Second, the district court concluded that “Lee was not

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In both his opening brief and his reply brief, Lee quotes the district court’s statement at the
evidentiary hearing that it had “not read” the underlying criminal file that was the subject of the
stipulated request for judicial notice, which request was made at the hearing in response to the
district court’s inquiry regarding exhibits. The district subsequently stated: “[W]e’ll be out with a
written decision on this motion, and we’ll go from there. It gives me a chance to read through the
entire criminal file. Because I can’t in good conscience make a ruling one way or the other without
having taken a look at that evidence.”

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prejudiced because the [trial court] allowed [trial] counsel to use the video footage if he chose to
do so.” Lee asserts that several of these factual findings were clearly erroneous.
Lee asserts that the evidence was not disclosed “a few days” before trial but, instead, a
single day before. Lee is correct. The record on appeal contains a document attached to Lee’s
affidavit in support of his original petition for post-conviction relief. This document is a
supplemental discovery response from the State in Lee’s underlying criminal case, of which the
district court took judicial notice. According to the discovery responses, the State sent “a copy of
the supplemental report of [an officer] as well as a thumb drive containing” video footage. The
State served this discovery response on February 26, 2018, one day before Lee’s trial. In addition,
Lee testified at the evidentiary hearing that the “supplementary report was delivered the day before
the trial started.” The record does not contain evidence contradicting the supplemental discovery
response or Lee’s testimony. Consequently, the finding that the State served its discovery
responses “a few days” before trial is erroneous. This error, however, is harmless. Idaho Rule of
Civil Procedure 61 provides that, at “every stage of the proceeding, the court must disregard all
errors and defects that do not affect any party’s substantial rights.” On appeal, parties must provide
argument explaining how an alleged error or defect prejudiced their substantial rights. See Cedillo
v. Farmers Ins. Co., 163 Idaho 131, 136, 408 P.3d 886, 891 (2017) (declining to address appellant’s
discovery issues on appeal because appellant failed to support claims with argument demonstrating
prejudice). On appeal, Lee advances no argument explaining how this error affected the district
court’s dismissal of his claim and, in any event, it is unclear how a change from “a few days” to a
single day before trial would have impacted the district court’s analysis. Notably, the district court
did not list the length of time as factoring into its conclusions that Lee’s trial counsel was not
deficient and that Lee was not prejudiced. Thus, we disregard this error as harmless.
Lee also asserts the district court erred by finding that he “testified that he was informed
the State was barred from using the evidence because of the late disclosure.” Given the nature of
the district court’s finding--that Lee “testified” to a fact rather than a finding that the fact was
established--the absent portions of the underlying criminal record do not preclude our
consideration of this asserted error. In support of his contention, Lee notes the following dialogue
from the evidentiary hearing:

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[State]: Would it surprise you to hear that [Lee’s trial counsel] and
[the State’s counsel] had a conversation with the [trial] judge
in chambers about the evidence that was late disclosed, and
there was an agreement that we would proceed with the trial,
but that the evidence would not be introduced by the State?
[Lee]: That would surprise me, yes, because [trial counsel] didn’t
discuss that with me.
This dialogue does not support a finding that Lee testified that the State was barred from using the
evidence but, as Lee notes, indicates he was unaware of any sanctions. In addition, a review of
the record reveals that Lee never testified at the evidentiary hearing that the State was barred from
using the evidence. Nevertheless, any error based on a contrary finding is harmless because Lee’s
claim fails on the prejudice prong of Strickland.
To establish prejudice, the petitioner must show a reasonable probability that, but for the
attorney’s deficient performance, the outcome of the trial would have been different. Aragon v.
State, 114 Idaho 758, 761, 760 P.2d 1174, 1177 (1988); Knutsen v. State, 144 Idaho 433, 442, 163
P.3d 222, 231 (Ct. App. 2007). If Lee’s trial counsel had sought sanctions, the best remedy he
could have obtained was exclusion of the late-disclosed evidence from the State’s case-in-chief
and permission to use the evidence in his defense. Lee, however, presented no evidence that the
State used the supplemental report or the video footage at trial. He also did not present evidence
that he was prohibited from using these materials at trial. In short, Lee failed to show that the
outcome of his trial would have been different if his counsel had sought and received sanctions
against the State. Thus, even if his trial counsel was deficient by failing to seek sanctions, Lee has
failed to show he was prejudiced by this failure, rendering any erroneous factual finding related to
Lee’s knowledge of sanctions harmless.
Finally, Lee asserts the district court erred by finding that he testified that his trial “counsel
was free to introduce [the late-disclosed evidence] at trial.” Relatedly, Lee asserts the district court
erred by finding that “the [trial court] allowed [Lee’s trial] counsel to use the video footage if he
chose to do so,” which appears to be premised on Lee’s testimony. Lee asserts that “there was no
evidence that the district court permitted [him] to use the video.” We need not determine whether
this factual finding was clearly erroneous because, as discussed above, Lee failed to present
evidence that the State was allowed to use the late-disclosed evidence or that he was prohibited
from using it in his defense. Thus, even if this finding is erroneous, it is harmless.

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IV.
CONCLUSION
Lee has failed to show that any erroneous factual finding affected his substantial rights,
and has failed to show the district court erred by granting the State’s motion to dismiss his petition
for post-conviction relief. Consequently, the judgment dismissing Lee’s petition for post-
conviction relief is affirmed.
Judge GRATTON and Judge HUSKEY, CONCUR.

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