               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 44104

STATE OF IDAHO,                                 )   2017 Unpublished Opinion No. 488
                                                )
       Plaintiff-Respondent,                    )   Filed: June 13, 2017
                                                )
v.                                              )   Stephen W. Kenyon, Clerk
                                                )
JOANNE N. CHRISTOFFERSON,                       )   THIS IS AN UNPUBLISHED
                                                )   OPINION AND SHALL NOT
       Defendant-Appellant.                     )   BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Sixth Judicial District, State of Idaho,
       Bannock County. Hon. Robert C. Naftz, District Judge.

       Order denying Idaho Criminal Rule 12.2 motion for additional defense services
       and judgment of conviction, affirmed.

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

       Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Joanne N. Christofferson appeals from the district court’s judgment of conviction entered
upon her guilty plea to felony vehicular manslaughter. Christofferson argues the district court
abused its discretion when it denied her Idaho Criminal Rule 12.2 motion for additional defense
services. While the requested services may not have been duplicative of the psychological
evaluations the court ordered, any error by the district court was harmless because Christofferson
refused to participate in additional examinations. The order denying the Rule 12.2 motion for
additional defense services and the judgment of conviction are affirmed.




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                                                I.
                       FACTUAL AND PROCEDURAL BACKGROUND
        While driving her vehicle, Christofferson crashed head-on into a motorcycle and killed
the driver of the motorcycle. Due to the collision, Christofferson was transported to a hospital to
receive care for her injuries. An inventory search of Christofferson’s vehicle revealed a pipe
with residue and a prescription bottle containing two pills. Upon her arrival to the hospital, an
additional pipe was taken from Christofferson’s person. Christofferson admitted to the hospital
staff that she used marijuana, methamphetamine, and prescription medications prior to operating
her vehicle that day. The hospital staff strongly recommended a comprehensive psychological
examination upon Christofferson’s discharge because hospital records revealed a significant and
complicated mental health history. The records exhibited evidence of post-traumatic stress
disorder (PTSD), depression, bi-polar disorder, and significant anxiety due to the circumstances
in the defendant’s life. 1
        Christofferson was arrested upon her release from the hospital.        The State charged
Christofferson with felony vehicular manslaughter, Idaho Code § 18-4006(3)(a) and/or (b) and/or
§ 18-4007(3)(a) and/or (b), and also for acting with gross negligence and/or in the commission of
a violation of I.C. § 18-8004 or § 18-8006. Christofferson initially pleaded not guilty. The State
later amended the information and charged Christofferson with felony vehicular manslaughter,
I.C. § 18-4006(3)(a) and § 18-4007(3)(a). Christofferson changed her plea and the district court
accepted Christofferson’s guilty plea to felony vehicular manslaughter. Christofferson filed an
ex parte motion for additional defense services pursuant to Rule 12.2, and the same day, the
court ordered a presentence investigation report (PSI).         The district court then denied
Christofferson’s request on the basis that the court had already ordered a mental health
evaluation, and so any additional psychological services would be duplicative.
        When Christofferson completed the PSI, she also completed screening necessary for the
GAIN-I Recommendation and Referral Summary (GAIN-I).               The GAIN-I indicated that a
complete mental health evaluation would be necessary. Later, the Idaho Department of Health
and Welfare (DHW) conducted a review of Christofferson’s mental health history and issued an
I.C. § 19-2524 DHW Mental Health Examination Report. At the sentencing hearing, the district

1
       The hospital information was provided to the district court in Christofferson’s ex parte
motion requesting the Rule 12.2 services.
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court imposed a unified sentence of ten years, with five years determinate. Christofferson timely
appeals.
                                                  II.
                                     STANDARD OF REVIEW
          “[A] denial of a request for expert or investigative assistance will not be disturbed absent
a showing that the trial court abused its discretion by rendering a decision which is clearly
erroneous and unsupported by the circumstances of the case.” State v. Olin, 103 Idaho 391, 395,
648 P.2d 203, 207 (1982). 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 correctly
perceived the issue as one of discretion, acted within the boundaries of such discretion and
consistently with any legal standards applicable to the specific choices before it, and reached its
decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333
(1989).
                                                  III.
                                             ANALYSIS
          Christofferson asserts the district court abused its discretion when it denied her Rule 12.2
motion for additional defense services. Christofferson argues the district court did not act
consistently with legal standards because it did not order a Rule 12.2 comprehensive
psychological examination. The State responds that Christofferson failed to prove how the
Rule 12.2 examination was necessary or different from the mental health examination that
Christofferson completed in accordance with I.C. § 19-2524.
          Preliminarily, the parties do not disagree that constitutional standards apply in this case.
Indigent defendants are entitled as a matter of due process and equal protection to the basic tools
of an adequate defense, including the provision of expert assistance at public expense when such
is necessary for a fair trial. Ake v. Oklahoma, 470 U.S. 68, 82-83 (1985); Britt v. North
Carolina, 404 U.S. 226, 227 (1971); State v. Lovelace, 140 Idaho 53, 65, 90 P.3d 278, 290
(2003); Olin, 103 Idaho at 394, 648 P.2d at 206; State v. Martin, 146 Idaho 357, 361-62, 195
P.3d 716, 720-21 (Ct. App. 2008). In Ake, the United States Supreme Court identified how
constitutional rights are implicated when an indigent defendant is preparing a defense:
                 This Court has long recognized that when a State brings its judicial power
          to bear on an indigent defendant in a criminal proceeding, it must take steps to
          assure that the defendant has a fair opportunity to present his defense. This

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       elementary principle, grounded in significant part on the Fourteenth
       Amendment’s due process guarantee of fundamental fairness, derives from the
       belief that justice cannot be equal where, simply as a result of his poverty, a
       defendant is denied the opportunity to participate meaningfully in a judicial
       proceeding in which his liberty is at stake.
Ake, 470 U.S. at 76.
       In Idaho, the rights of defendants are safeguarded by I.C. § 19-852(a)(2), which provides
that a needy person is entitled “to be provided with the necessary services and facilities of
representation (including investigation and other preparation).” Olin, 103 Idaho at 394, 648 P.2d
at 206 (included within the scope of I.C. § 19-852(a) are the Fourteenth Amendment
requirements of due process and equal protection as they apply to indigent defendants).
       In determining whether to provide additional assistance at public expense, the Idaho
Supreme Court has held that such assistance is not “automatically mandatory, but rather depends
upon needs of the defendant as revealed by the facts and circumstances of each case.”
State v. Powers, 96 Idaho 833, 838, 537 P.2d 1369, 1374 (1975). In Olin, the Supreme Court
explained how a court should review a request for expert services: “[A] defendant’s request for
expert or investigative services should be reviewed in light of all the circumstances and be
measured against the standard of ‘fundamental fairness’ embodied in the due process clause.”
Olin, 103 Idaho at 394, 648 P.2d at 206. The Supreme Court issued the rulings in Powers and
Olin before the creation of Rule 12.2, which now articulates the procedures a defendant and trial
court must follow when a defendant requests additional services. Rule 12.2 allows a defendant
to submit a motion seeking public funds to pay for investigative, expert, or other services that she
believes are necessary for her defense. The motion must be made before the defense incurs the
costs and the court must approve of the motion. I.C.R. 12.2(a).
       In this case, there is no disagreement as to whether Christofferson properly followed the
procedure in submitting her motion. Christofferson filed an ex parte motion for additional
defense services pursuant to Rule 12.2. Generally, the motion asked for “sufficient resources to
hire investigative and expert witness personnel to assist her in her defense.”         The motion
explained: “Christofferson would like to have a comprehensive psychological examination to
assist for mitigation purposes at sentencing.” The motion provided the rates and qualifications of
a licensed psychologist who could perform the exam and an estimate of the total cost of services.
Christofferson qualified as indignant at the time she filed the ex parte motion because she had no
income or assets with which she could pay for the requested examination.
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        The general issue here is whether the district court erred when it denied Christofferson’s
Rule 12.2 motion. The district court denied Christofferson’s motion because it determined the
additional services requested by Christofferson would be duplicative. The court explained:
       Pursuant to Idaho Code (IC) § 19-2524 any defendant who has been found guilty
       of a felony undergoes a screening to determine if they are in need of an
       assessment for a substance abuse disorder and/or a mental health examination. If
       it is determined from the screening that further examination is necessary, the case
       is referred to the Idaho Department of Health and Welfare for a full assessment.
       As such, the defendant’s request for a psychological examination is unnecessary.
       Idaho Code § 19-2524 states: “After a defendant has pled guilty to or been found guilty
of a felony, and at any time thereafter while the court exercises jurisdiction over the defendant,
behavioral health needs determinations shall be conducted when, and as provided by, this
section.” The statute sets forth the process for screening defendants for substance abuse and
mental health disorders, which must occur within seven days after the plea of guilty or finding of
guilt. I.C. § 19-2524(1). “As part of the presentence process, a screening to determine whether a
defendant is in need of a substance use disorder assessment and/or a mental health examination
shall be made in every felony case unless the court waives the requirement for a screening.”
I.C. § 19-2524(1)(a). If the initial screening indicates that the defendant may have a serious
mental illness, then the statute requires the Department of Correction (DOC) to refer the
defendant to the DHW for further examination.         I.C. § 19-2524(3)(a).    If the court later
determines that it needs more information about the defendant’s mental condition, the court may
order additional evaluations by a psychiatrist, licensed physician, or licensed psychologist.
I.C. § 19-2524(3)(d).
       In this case, the district court satisfied the requirements of I.C. § 19-2524. The district
court ordered Christofferson to complete mental health screening after Christofferson pleaded
guilty to felony vehicular manslaughter. The GAIN-I mental health screening constituted this
initial mental health screening and thus, satisfied the requirements of I.C. § 19-2524(1)(a). The
GAIN-I explained Christofferson’s mental health as follows: “[Christofferson] reported she has
been previously diagnosed with mental health issues including Bi-Polar Disorder, Depression,
Anxiety and PTSD.” The GAIN-I indicated that Christofferson was taking medications for her
symptoms and recommended cognitive-behavior based treatment and 24-hour supervision. The
examination also suggested Christofferson should be monitored for changes and adhere to
recommendations from DHW.

                                                5
       The results of the mental health screening indicated Christofferson could have serious
mental health problems. Due to the results of the screening, the language of I.C. § 19-2524(3)(a)
required the DOC to refer Christofferson to the DHW for further examination. The DOC
satisfied this requirement when an I.C. § 19-2524 DHW Mental Health Examination Report was
ordered as a result of the initial screening (12/02/15). 2   The district court’s order denying
Christofferson’s ex parte motion, issued prior to the GAIN-I results, further demonstrates the
district court’s awareness of the proper procedure: “If it is determined from the screening that
further examination is necessary, the case is referred to the Idaho Department of Health and
Welfare for a full assessment.”
       The district court complied with the requirements of I.C. § 19-2524. However, we must
still determine whether the defense services requested under Rule 12.2 would have been
duplicative of the I.C. § 19-2524 DHW Mental Health Examination Report. Christofferson
argues the exams differed because the I.C. § 19-2524 examination was for the benefit of the
court, while the requested Rule 12.2 services were meant to assist Christofferson in preparing for
her defense and sentencing. 3 The State disagrees and asserts the I.C. § 19-2524 test and the
defendant’s requested Rule 12.2 psychological examination would provide the court with the
same information--an evaluation of Christofferson’s mental health to be used at sentencing.
       When the district court summarily concluded the information provided in I.C. § 19-2524
was duplicative of the Rule 12.2 request, the district court failed to address the substantive
difference between in the information provided to the court under I.C. § 19-2524 and the services
requested under Rule 12.2. Additionally, when the district court denied Christofferson’s Rule
12.2 motion, the district court had only ordered the initial mental health and substance abuse
2
        At the sentencing hearing, there appears to have been some confusion regarding the
I.C. § 19-2524 DHW Mental Health Examination Report. The district court explained the
I.C. § 19-2524 DHW Mental Health Examination Report was not an assessment or an evaluation,
but instead, was only part of the initial screening. The court further explained that only after
such screening would the DHW order a full examination. We disagree with this explanation.
Pursuant to the language of I.C. § 19-2524, the GAIN-I mental health examination performed by
the DOC constituted the initial mental health screening, therein satisfying I.C. § 19-2524(1)(a).
The I.C. § 19-2524 DHW Mental Health Examination Report performed by the DHW
constituted the “further examination” that is required pursuant to I.C. § 19-2524(3)(a).
3
       Christofferson mentions “preparing for defense,” but more frequently refers to the
additional defense services as needed in “preparing for sentencing.” At the motion hearing,
Christofferson uses both “preparing for defense” and “preparing for sentencing” as reasons for
the Rule 12.2 evaluation.
                                                6
screening, pursuant to I.C. § 19-2524.    As such, the district court did not know whether that
initial screening would recommend further examination and so, did not and could not have
known that a full mental health evaluation would be necessary, or what the results of an
evaluation would be.
       Assuming the district court did not act consistently with the applicable legal standards
when it failed to address the above issues, and therefore abused its discretion, any error by the
district court in failing to grant the motion was harmless because Christofferson explicitly stated
she did not want to participate in any additional testing. Here, the record demonstrates that
although Christofferson’s counsel wanted an additional evaluation, Christofferson, herself, did
not. It was Christofferson’s decision--not her counsel’s--to decide whether or not she wished to
participate in a psychological evaluation. Estrada v. State, 143 Idaho 558, 563, 149 P.3d 833,
838 (2006).
       Both counsel and Christofferson indicated that Christofferson would not participate in
these further examinations. In one instance, defense counsel admitted: “Christofferson does not
want me to ask for additional evaluations.” Later, counsel explained: “At that point in time,
[Christofferson] said, no, I don’t want any more psych evals.” When asked by the court about
this discrepancy, defense counsel explained that even though Christofferson did not want any
additional testing, counsel nonetheless felt it was his duty to create a good record and highlight
Christofferson’s mental illness. Following her counsel’s argument in support of the Rule 12.2
motion, Christofferson apologized to the court and stated: “So I’m sorry about that--just--I don’t
even know what to say” and “About what just happened. I didn’t know that was going to
happen.” The court explained how defense counsel was acting as Christofferson’s advocate and
there was no need to apologize, to which Christofferson explained: “Oh, I guess I’m just in a
hurry to dismiss the evaluations and the PSI because all I really have been searching for is just
forgiveness. For mercy, forgiveness, closure. I know everybody else wants closure.”
       There is no disagreement as to Christofferson’s unwillingness to request or participate in
further psychological evaluations.     Therefore, any error by the district court in denying
Christofferson’s Rule 12.2 motion for additional defense services was harmless.




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                                              IV.
                                       CONCLUSION
       Assuming that the district court erred, any error in denying the Rule 12.2 motion was
harmless because Christofferson refused to participate in additional psychological examinations.
The order denying Rule 12.2 motion for additional defense services and judgment of conviction
are affirmed.
       Chief Judge GRATTON and Judge GUTIERREZ CONCUR.




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