                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 37112

STATE OF IDAHO,                                     )     2010 Unpublished Opinion No. 742
                                                    )
          Plaintiff-Respondent,                     )     Filed: December 13, 2010
                                                    )
v.                                                  )     Stephen W. Kenyon, Clerk
                                                    )
MICHAEL J. BULKLEY,                                 )     THIS IS AN UNPUBLISHED
                                                    )     OPINION AND SHALL NOT
          Defendant-Appellant.                      )     BE CITED AS AUTHORITY
                                                    )

          Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
          Falls County. Hon. Randy J. Stoker, District Judge. Thomas D. Kershaw, Jr.,
          Magistrate.

          District court’s appellate decision affirming judgment of conviction for driving
          under the influence, affirmed.

          Michael H. Felton, Jr., Buhl, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
          General, Boise, for respondent.
                    ________________________________________________
PERRY, Judge Pro Tem
          Michael J. Bulkley appeals from the district court’s decision on appeal affirming the
magistrate’s finding that Bulkley was guilty of driving under the influence. I.C. § 18-8004. We
affirm.
          On November 2, 2008, Twin Falls Police Officer Loosli observed a vehicle parked in the
Swensen’s parking lot around 2:20 a.m. Loosli approached the vehicle and observed Bulkley
lying down in the driver’s seat with the engine running. Loosli had Bulkley perform field
sobriety tests and thereafter arrested Bulkley for DUI. At the Twin Falls County Jail, Bulkley
submitted to a blood alcohol test (BAC) which indicated a reading of .15.
          At trial before the magistrate, the parties stipulated that Bulkley was in his vehicle with
the engine running at the date, time, and general location listed in the complaint. The parties
further stipulated the parking lot was private property and to the BAC reading obtained from
Bulkley. The issue litigated was whether Bulkley was parked on “private property open to the

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public” as required under the DUI statute. Following testimony by Officer Loosli, the magistrate
determined that Swensen’s parking lot met the statutory definition and found Bulkley guilty of
DUI. The magistrate entered a judgment of conviction. Bulkley appealed to the district court
which affirmed the magistrate’s findings and Bulkley’s judgment. Bulkley appealed to this
Court.
         On appeal Bulkley asserts there was insufficient evidence introduced to support the
magistrate’s finding that Bulkley’s vehicle was on private property open to the public pursuant to
I.C. § 18-8004. The state responds that the district court, in its appellate capacity, correctly
concluded that there was substantial and competent evidence presented at trial to support the
magistrate’s finding.
         On review of a decision of the district court, rendered in its appellate capacity, we review
the decision of the district court directly. State v. DeWitt, 145 Idaho 709, 711, 184 P.3d 215, 217
(Ct. App. 2008). We examine the magistrate record to determine whether there is substantial and
competent evidence to support the magistrate’s findings of fact and whether the magistrate’s
conclusions of law follow from those findings. Id. If those findings are so supported and the
conclusions follow therefrom and if the district court affirmed the magistrate’s decision, we
affirm the district court’s decision as a matter of procedure. Id.
         Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt
will not be overturned on appeal where there is substantial evidence upon which a reasonable
trier of fact could have found that the prosecution sustained its burden of proving the essential
elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957
P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct.
App. 1991). We will not substitute our view for that of the trier of fact as to the credibility of the
witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn
from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683,
684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light
most favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson,
121 Idaho at 104, 822 P.2d at 1001.
         Idaho Code Section 18-8004(1) requires that in order to find a motorist guilty of driving
under the influence, the motorist must be “upon public or private property open to the public.”
In this case the parties below stipulated that Swensen’s parking lot was private property.


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Although the state presented evidence attempting to show that Bulkley’s vehicle was partially
parked within an alley, and therefore on public property, the magistrate found the evidence
insufficient to support such a finding. The state has not appealed the magistrate’s finding in that
regard. Accordingly we only address whether the state introduced substantial and competent
evidence to support the magistrate’s finding that Swensen’s parking lot is private property open
to the public.
        In support of his position Bulkley relies heavily on State v. Knott, 132 Idaho 476, 974
P.2d 1105 (1999). In Knott, the Idaho Supreme Court determined that a private residential
driveway was not private property open to the public within the meaning of I.C. § 18-8004.
Bulkley asserts the controlling rule set forth in Knott as “The fact that social guests and persons
with business at the residence are permitted to use the driveway does not make it property
available to the general public for vehicular traffic or parking.” Id. at 480, 974 P.2d at 1109.
Therefore, according to Bulkley, the state was required to show that Swensen’s had extended a
personal invitation to Bulkley to be on its private property. We are unpersuaded.
        The only witness called at trial in this matter was Officer Loosli. Through his testimony,
four photographs depicting the parking lot and signage were also introduced.        Loosli testified
that he was familiar with the Swensen’s parking lot on a professional basis prior to November 2,
2008. Based on his familiarity, Loosli testified generally to the following facts: The parking lot
is not fenced in and is surrounded by three public streets and a public alleyway. From the
pictures of the parking lot admitted at trial, it is apparent that Swensen’s is not a private
residence but rather a commercial business. There is a pay phone located on the south end of the
building which the general public has access to. There is also a pop machine on the north end of
the building and Loosli testified that he has seen people walking to both the phone and the pop
machine. Although there was no testimony concerning the hours of operation of Swensen’s,
Loosli testified that he has seen motor vehicles in the parking lot during hours of operation and
also when the business was not in operation. He further testified he believed that any member of
the general public that wanted to patronize the store could come onto the property.
        Introduced as state’s Exhibit A was a photograph of a sign posted on a pole within the
parking lot.      That sign stated:        “IMPROPERLY PARKED ABANDONED AND
UNAUTHORIZED VEHICLES WILL BE REMOVED AT OWNERS EXPENSE REMOVED
VEHICLES TOWED TO: HIGHWAY 30 GARAGE AUTO REPAIR AUTO PARTS 24 HOUR


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TOWING PHONE 734-7094.” No witness was called to explain Swensen’s intent in posting
such a sign. However, Loosli testified that his general understanding was that businesses were
required by law to have a sign posted in order to remove any vehicles from their property.
       In a well-reasoned written opinion the district court in this case traced both the legislative
history and appellate case law for the applicable statute. In doing so, the district court reviewed
this Court’s decisions in State v. Gibson, 126 Idaho 256, 881 P.2d 551 (Ct. App. 1994) and State
v. Schmitt, 144 Idaho 768, 171 P.3d 259 (Ct. App. 2007) along with our Supreme Court’s
intervening decision in Knott. We agree with the district court’s analysis.       The law has long
recognized that the parking lots of restaurants, shopping centers, bars, grocery stores, gas
stations, and other commercial businesses are included in the definition of private property open
to the public. As the district court reasoned, the sign posted by Swensen’s did not withdraw its
general permission to the public to use its parking lot. It simply stated that a vehicle that is
improperly parked or abandoned within the lot can be removed. As concluded by the district
court, the state was not required to show that Swensen’s had given express or implied permission
to Bulkley to use its parking lot. Bulkley’s vehicle was not shown to be improperly parked or
abandoned. Bulkley was inside his vehicle with the engine running.             Loosli testified that
Swensen’s “is such an establishment that any member of the general public that wanted to
patronize the store could come onto the property.” As noted by the district court, this case is
clearly distinguishable from Knott where the defendant was arrested on the driveway of a private
residence. We agree with the district court that there was substantial and competent evidence to
support the magistrate’s finding that Swensen’s parking lot is “private property open to the
public” as defined by the applicable statute. Bulkley has failed to show error in the district
court’s decision.
       The order of the district court affirming the magistrate’s finding that Bulkley was guilty
of driving under the influence is affirmed.
          Judge GUTIERREZ and Judge MELANSON, CONCUR.




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