State v. Palken

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 49635

STATE OF IDAHO, )
) Filed: May 15, 2023
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
MELINA PALKEN, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the Second Judicial District, State of Idaho, Idaho
County. Hon. Jay P. Gaskill, District Judge; Hon. David H. Judd, Magistrate.

Decision of the district court, on intermediate appeal from the magistrate court,
affirming the denials of discovery request and motions for a new trial, for
reconsideration, and to disqualify judge, affirmed.

Melina Palken, Elk City, pro se appellant.

Hon. Raúl R. Labrador, Attorney General; Justin R. Porter, Deputy Attorney
General, Boise, for respondent.
________________________________________________

BRAILSFORD, Judge
Melina Palken appeals pro se from the district court’s order, on intermediate appeal,
affirming the magistrate court’s denials of her discovery request and her motion for a new trial,
motion for reconsideration, and motion to disqualify the judge. We affirm the district court’s
decision.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2019, Palken received a citation for trespass in violation of Idaho Code § 18-
7008. Subsequently, the charge was amended to allege an infraction for trespassing on the Baileys’
real property. During trial, the State presented evidence Palken rode a mule onto the Baileys’
property despite having received a letter from Mrs. Bailey informing Palken she did not have

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permission to ride her mule or otherwise be on the property. Largely, Palken’s defense to trespass
rested on her argument that she rode her mule on a public right-of-way, locally known as the
Potlach Forest Industries (PFI) Road, which she asserted crossed the Baileys’ property. Witnesses
provided conflicting testimony whether the PFI Road extended onto the Baileys’ property. Palken
presented the testimony of her ex-husband, Mr. Palken, who testified about his own research into
the PFI Road and his conclusion that a defect in the chain of title showed the Baileys did not own
the PFI Road and could not claim trespass on it. Ultimately, the court rejected Palken’s affirmative
defense, found her guilty of trespassing on the Baileys’ property, and entered a judgment against
her in August 2020.
Palken appealed her conviction, and the district court affirmed. Subsequently, Palken filed
a motion for new trial with the magistrate court. In support, Palken argued newly discovered
evidence exonerates her. Specifically, Palken argued that various records prove that “since 1955,
[there was] an easement on and through the property of Bailey [where] the alleged trespass
transpired”; a “deed granted the easement” to Mr. Palken; and the easement was confirmed by a
quiet title judgment entered in January 2021 after Palken’s conviction. In support, Palken attached
eleven “exhibits” to her motion, including the January 2021 judgment. After Palken filed a motion
for a new trial, she also filed a supplemental discovery request for the State to produce a “complete
copy of Bailey’s [sic] closing documents for the Bailey property where the alleged trespass
occurred.” The magistrate court denied Palken’s request for post-conviction discovery.
Subsequently, the magistrate court held a hearing on Palken’s motion for a new trial. At
the hearing, Palken’s counsel attempted to present Mr. Palken’s testimony to authenticate the
documents attached as exhibits to Palken’s motion. The court noted that I.C. § 19-2406 required
Palken to submit an affidavit identifying any new evidence, ruled Mr. Palken could not testify, and
took judicial notice of the January 2021 judgment. The court ruled that the judgment “merely
states there is an easement” and that “there is no evidence . . . the easement pertains to the Bailey
property.” The court concluded Palken only established a “generalized assertion” of an easement,
noted she traveled all over the property and not just on the roadway, further noted no evidence
supported that she had a legal right to be on the Baileys’ property, and denied her motion for a new
trial.
Palken filed a motion to disqualify the judge and a motion for reconsideration of her motion
for a new trial. In Palken’s motion for reconsideration, she sought “to cure any issues or

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misunderstandings on the hearing and evidence,” contending that she requested a short
continuance of the hearing on her motion for a new trial to prepare an affidavit for the exhibits and
that “it is unclear whether any exhibit was either admitted or rejected.” In support of her motion
to disqualify the judge, Palken submitted an affidavit rearguing her position; identifying numerous
statements the judge made during the hearing, which she asserted were “clearly erroneous”; and
arguing generally that the judge’s statements showed “bias, lack of impartiality and circular
arguments.” The magistrate court denied both motions.
Palken filed an intermediate appeal with the district court, which affirmed the magistrate
court’s orders. Palken timely appeals the district court’s decision.
II.
STANDARD OF REVIEW
For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate division, we review 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). However, as a matter of appellate procedure, our disposition of
the appeal will affirm or reverse the decision of the district court. State v. Trusdall, 155 Idaho 965,
968, 318 P.3d 955, 958 (Ct. App. 2014). Thus, we review the magistrate court’s findings and
conclusions, whether the district court affirmed or reversed the magistrate court and the basis
therefor, and either affirm or reverse the district court.1

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Palken fails to include the standard of review for a decision on intermediate appeal in her
appellate briefing to this Court. As a result, a substantial majority of Palken’s arguments
incorrectly focus on the district court’s analysis rather than the magistrate court’s analysis. Palken
asserts that “there is no reason to repeat” her brief on intermediate appeal, which challenges the
magistrate court’s analysis, and she purports to “incorporate[] by reference all the points and
authorities documented and argued” in her intermediate appellate brief into her brief on appeal to
this Court. Palken, however, may not circumvent the page limitation in Idaho Appellate
Rule 34(b) or this Court’s standard of review simply by referencing her intermediate appellate
brief. Pursuant to the applicable standard, our review focuses on the magistrate court’s analysis,
and we decline to address Palken’s arguments challenging the district court’s analysis.

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III.
ANALYSIS
A. Request for Post-trial Discovery
Palken asserts the magistrate court erred in denying her post-conviction, supplemental
discovery requesting the State to produce a “complete copy of [the] closing documents for the
Bailey property.” Palken fails to include in the appellate record the hearing transcript at which the
court denied her request for supplemental discovery, although the court minutes indicate the court
denied the request.2 Palken had the responsibility to provide sufficient record to substantiate her
arguments on appeal. See State v. Murinko, 108 Idaho 872, 873, 702 P.2d 910, 911 (Ct. App.
1985) (ruling appellant has responsibility to provide sufficient appellate record). Absent an
adequate appellate record, we will not presume error. State v. Beason, 119 Idaho 103, 105, 803
P.2d 1009, 1011 (Ct. App. 1991).
Regardless, Palken’s argument that Idaho Criminal Rule 16 required the State to produce
the Baileys’ closing documents fails. Idaho Criminal Rule 16(a) provides, in part:
As soon as practicable after the filing of charges against the accused, the
prosecuting attorney must disclose to defendant or defendant’s counsel any material
or information in the prosecuting attorney’s possession or control, or that later
comes into the prosecuting attorney’s possession or control, that tends to negate the
guilt of the accused as to the offense charged or that would tend to reduce the
punishment for the offense. The prosecuting attorney’s obligations under this
paragraph extend to material and information in the possession or control of
members of [the] prosecuting attorney’s staff and of any others who have
participated in the investigation or evaluation of the case who either regularly
report, or have reported in that case, to the office of the prosecuting attorney.
Nothing in this rule requires the prosecution to produce information in the victim’s possession.
Furthermore, Palken cites no authority in support of her proposition that the State must continue
to respond to discovery requests post-conviction. See State v. Zichko, 129 Idaho 259, 263, 923
P.2d 966, 970 (1996) (providing party waives issue on appeal if either authority or argument is
lacking). Generally, the discovery rules are intended to provide pretrial disclosures. See State v.
Morin, 158 Idaho 622, 626, 349 P.3d 1213, 1217 (Ct. App. 2015) (noting discovery rules are
drafted to safeguard truth-seeking function of trials, facilitate fair and expedient pretrial fact

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Palken quotes the magistrate court’s ruling in her opening brief on intermediate appeal and
cites to a “CD of hearing held on 8-4-2021.” Palken, however, does not include this “CD” in the
appellate record. Palken’s unsupported quotation of the court’s ruling is not adequate for purposes
of including that ruling in the appellate record.
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gathering, and prevent surprise at trial). Accordingly, the district court did not err in affirming the
magistrate court’s denial of Palken’s post-conviction request for supplemental discovery.
B. Motion for New Trial
Palken asserts the magistrate court erred in denying her motion for a new trial based on
newly discovered evidence.3 See I.C. § 19-2406 (providing newly discovered evidence may be
grounds for new trial). A decision on a motion for a new trial is reviewed under an abuse of
discretion standard. State v. Egersdorf, 126 Idaho 684, 687, 889 P.2d 118, 121 (Ct. App. 1995).
When a trial court’s discretionary decision is reviewed on appeal, the appellate court conducts a
multi-tiered inquiry to determine whether the trial 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). Whether a
trial court properly applied a statutory provision to the facts of a particular case is a question of
law over which we exercise free review. State v. Heiner, 163 Idaho 99, 101, 408 P.3d 97, 99 (Ct.
App. 2017). A motion for a new trial based on newly discovered evidence must disclose: (1) the
evidence is newly discovered and was unknown to the defendant at the time of the trial; (2) the
evidence is material, not merely cumulative or impeaching; (3) the evidence will probably produce
an acquittal; and (4) the failure to learn of the evidence was due to no lack of diligence on the part
of the defendant. State v. Drapeau, 97 Idaho 685, 691, 551 P.2d 972, 978 (1976).
Palken makes numerous arguments challenging the magistrate court’s denial of her motion
for a new trial, none of which are persuasive. First, Palken argues the court was required under
Idaho Criminal Rule 34 to hear Mr. Palken’s testimony in support of Palken’s motion. Palken,
however, misconstrues I.C.R. 34. It provides that “on the defendant’s motion, the court may vacate
any judgment and grant a new trial on any ground permitted by statute. If the case was tried
without a jury, the court may take additional testimony and enter a new judgment.” I.C.R. 34(a).
Palken apparently reads this provision as requiring the court to hear testimony in support of a
motion for a new trial. The rule’s plain language, however, contemplates a court hearing testimony

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Palken attaches to her opening appellate brief numerous documents, which appear to be
some of the exhibits (or versions of them) she attached to her motion for a new trial. In addressing
an appeal, this Court relies on the appellate record and declines to consider documents attached to
Palken’s briefing.
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only if the court first grants a new court trial. Palken fails to cite any authority indicating the
contrary. See Zichko, 129 Idaho at 263, 923 P.2d at 970 (ruling party waives appellate issue if
authority or argument is lacking). Because the court did not grant Palken a new trial, it was not
required to hear Mr. Palken’s testimony.
Second, Palken argues the magistrate court never ruled on the admissibility of the
documents attached as exhibits to her motion for a new trial. The record is clear, however, that
the court declined to consider any of the attached documents, other than the quiet title judgment,
because Palken did not properly submit the documents with an authenticating affidavit as I.C. § 19-
2406(7) requires. For example, the court stated Palken “has submitted no affidavits regarding
newly discovered evidence” and “I find that [Palken] has not presented any affidavits in support
of the motion . . . .” Regardless, the court did take judicial notice of and considered the quiet title
judgment, stating that “I can, at a minimum take judicial notice of [the judgment]” and that “the
newly discovered evidence [Palken] is resting on is a judgment, which this Court can review.” It
concluded, however, that the judgment “merely states there is an easement” and that “there is no
evidence . . . the easement pertains to the Bailey property.” Although the court did not expressly
rule on the admissibility of all the attached documents, its analysis demonstrates it considered the
judgment but not the other documents.
Third, Palken asserts the magistrate court “acknowledged the evidence was ‘new.’”
Contrary to this assertion, however, the court expressly stated, “this is not new evidence.” The
court reasoned that the newly discovered evidence “must be unknown at the time of trial,” but that
“this dispute regarding the easement was already well-pending at the time of trial.” Indeed, on
intermediate appeal and in her briefing to this Court, Palken acknowledges that the quiet title
judgment merely confirmed the quitclaim deed on which she relied during trial to assert a legal
right to be on the Baileys’ property. For this reason, the magistrate court did not err in concluding
the purported new evidence was not new but was cumulative of Palken’s “mistaken belief” she
had a legal right to be on the Baileys’ property, and her arguments to the contrary fail.
Finally, Palken challenges the magistrate court’s reliance on two affidavits the State
submitted in opposition to her motion for a new trial, arguing “these affidavits were never offered
into evidence in open court” “nor did the [court] rule they were admitted.” This argument also
fails. Palken never moved to strike the affidavits. As a result, she failed to preserve the issue for
appeal. State v. Miramontes, 170 Idaho 920, 924, 517 P.3d 849, 853 (2022) (requiring either

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adverse ruling or party to present issue to trial court for purposes of preservation of appellate issue).
Regardless, the record establishes the magistrate court did not rely on the affidavits to resolve
Palken’s motion for a new trial. Rather, the court ruled Palken failed to make the necessary
showing to warrant a new trial. See Drapeau, 97 Idaho at 691, 551 P. at 978 (discussing required
showing for new trial).
Palken’s suggestion that she preserved for appeal her challenge to the State’s affidavits
under Rule 103 of the Idaho Rules of Evidence is without merit. This rule governs a trial court’s
ruling on the admissibility or exclusion of evidence during an evidentiary hearing. Contrary to
Palken’s suggestion, the rule neither applies to the magistrate court’s consideration of affidavits in
support of a motion for a new trial or otherwise. Further, I.R.E. 103 does not relieve Palken of her
obligation to object to the affidavits to preserve her appellate challenge to them. For these reasons,
the district court did not err in affirming the magistrate court’s denial of Palken’s motion for a new
trial.
C. Motion for Reconsideration
Palken asserts the magistrate court erred in denying her motion for reconsideration of her
motion for a new trial. The only authority Palken cites in support of her challenge, however, is
I.R.E. 103. As discussed above, I.R.E. 103 governs a trial court’s rulings on evidence admitted or
excluded during an evidentiary hearing. It has no application to a court’s consideration or denial
of a motion for a new trial or a motion for reconsideration. Palken has failed to offer any cogent
argument or to cite any applicable authority in support of her challenge to the denial of her motion
for reconsideration. Accordingly, she has waived the issue. See Zichko, 129 Idaho at 263, 923
P.2d at 970 (providing party waives issue on appeal if either authority or argument is lacking).
D. Motion to Dismiss Case No. CR25-20-0034
Palken asserts the magistrate court erred in declining to dismiss a misdemeanor trespass
charge filed against her in a separate criminal case, Case No. CR25-20-0034, which Palken
contends was “based on the same conduct.” In her motion for a new trial, Palken requested an
order “[d]ismissing Case No. CR25-20-0034, based on Idaho Criminal Rule 48 in the interest of
justice.” Palken’s argument fails because the court lacked subject matter jurisdiction to dismiss
the separate criminal case against Palken.
Subject matter jurisdiction is the power to hear and determine cases. State v. Rogers, 140
Idaho 223, 228, 91 P.3d 1127, 1132 (2004); State v. Jakoski, 139 Idaho 352, 355, 79 P.3d 711, 714

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(2003). “The information, indictment, or complaint alleging an offense was committed within the
State of Idaho confers subject matter jurisdiction upon the court.” Rogers, 140 Idaho at 228, 91
P.3d at 1132; accord State v. McIntosh, 160 Idaho 1, 6, 368 P.3d 621, 626 (2016). The State in
this case did not allege a misdemeanor trespass charge but rather alleged that charge in Case
No. CR25-20-0034. To seek a dismissal of the charge in Case No. CR25-20-0034, Palken was
required to file a motion to dismiss in that case. Accordingly, the district court did not err in
affirming the magistrate court’s denial of Palken’s motion to dismiss Case No. CR25-20-0034 in
this case.
E. Motion to Disqualify
Finally, Palken asserts the district court erred by concluding she failed to preserve her
appellate challenge to the magistrate court’s denial of her motion to disqualify. We agree Palken
preserved the challenge by filing a disqualification motion, which the court denied. Miramontes,
170 Idaho at 924, 517 P.3d at 853 (ruling either adverse ruling or presentation of issue to trial court
preserves appellate issue). Palken, however, makes no argument on appeal in support of her
challenge to the denial of her motion to disqualify. See Zichko, 129 Idaho at 263, 923 P.2d at 970
(providing party waives issue on appeal if either authority or argument is lacking). Regardless,
Palken’s challenge is without merit.
A defendant may disqualify a judge in a criminal case by showing the judge “is biased or
prejudiced for or against any party or that party’s case in the action.” I.C.R. 25(b)(4). We review
the denial of a motion to disqualify under I.C.R. 25(b)(4) for an abuse of discretion standard. State
v. Shackelford, 155 Idaho 454, 457, 314 P.3d 136, 139 (2013); accord Sivak v. State, 112 Idaho
197, 206, 731 P.2d 192, 201 (1986); State v. Saunders, 124 Idaho 334, 336, 859 P.2d 370, 372 (Ct.
App. 1993). When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the trial 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. Herrera, 164 Idaho at 270, 429 P.3d at 158.
The magistrate court did not abuse its discretion in denying Palken’s motion to disqualify.
In support of that motion, Palken generally argued “the record in this case is replete with statements
by the [judge] demonstrating a complete lack of impartiality and bias.” Further, Palken argued the
judge’s inquiries about what new evidence supported her motion for a new trial illustrated his

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impartiality and bias. The judge’s inquiries and Palken’s general argument about them, however,
are insufficient to establish the judge was impartial, biased, or prejudiced against Palken or
otherwise. The Idaho Supreme Court has noted that “the standard for recusal of a judge, based
simply on information that he has learned in the course of judicial proceedings, is extremely high.”
Bach v. Bagley, 148 Idaho 784, 792, 229 P.3d 1146, 1154 (2010). That the judge in this case
expressed criticism or skepticism of the allegedly newly discovered evidence during the motion
for a new trial does not meet this “extremely high” standard. See, e.g., id. Accordingly, the district
court did not err by affirming the magistrate court’s denial of Palken’s motion to disqualify the
judge.
IV.
CONCLUSION
We affirm the district court’s decision affirming the magistrate court’s denials of Palken’s
discovery request and her motions for a new trial, for reconsideration, and to disqualify the
magistrate judge.
Judge GRATTON and Judge HUSKEY CONCUR.

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