                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 45967

WYLIE GAIL HUNTER,                               )
                                                 )    Filed: September 27, 2019
       Petitioner-Appellant,                     )
                                                 )    Karel A. Lehrman, 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                                                 )    THIS IS AN UNPUBLISHED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 First Judicial District, State of Idaho,
       Kootenai County. Hon. Lansing Haynes, District Judge.

       Order summarily dismissing petition for post-conviction relief, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

BRAILSFORD, Judge
       Wylie Gail Hunter appeals from the district court’s order summarily dismissing his
successive petition for post-conviction relief. We affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       This Court previously considered Hunter’s direct appeal, which challenged the district
court’s partial denial of his motion to suppress evidence from a traffic stop and a subsequent
vehicle search. State v. Hunter, Docket No. 36728 (Ct. App. June 16, 2011) (unpublished). The
following facts, which are important to this appeal’s resolution, were set forth in that opinion:
              In 2007, Idaho State Police Detective Terry Morgan began investigating
       Hunter for drug smuggling. Detective Morgan had received information that
       Hunter would obtain a rental car, drive to the Canadian border, pick up marijuana,
       and return to Coeur d’Alene. Based upon this and other information, ISP began

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      tracking Hunter’s car rentals through the rental company and notified the rental
      company that it should contact ISP when Hunter rented a vehicle. On
      September 2, 2007, an employee of the rental company contacted ISP to inform
      them that Hunter had rented a vehicle that morning. Detective Morgan obtained
      the make, model, and license plate number of the car and waited on Highway 95
      at Athol for the car to drive past. At approximately 2:22 p.m., Detective Morgan
      saw Hunter drive by in the vehicle. Detective Morgan testified that he observed
      Hunter exceed the speed limit and commit two illegal lane changes. Because he
      was in an unmarked vehicle, Detective Morgan notified Trooper Ronald Sutton
      regarding the traffic infractions and advised Trooper Sutton to pull the vehicle
      over.
               At approximately 2:38 p.m., Trooper Sutton stopped the vehicle and, after
      obtaining Hunter’s license and registration, went around to the passenger side of
      the vehicle to collect the passenger’s identification. While speaking with the
      passenger, Chase Storlie, Trooper Sutton detected a faint odor of raw marijuana
      coming from the vehicle, which he relayed to Detective Morgan, who had stopped
      behind the patrol car shortly after the stop. Hunter was removed from the vehicle
      and asked to sit on the front bumper of the patrol car. Detective Morgan then
      contacted Hunter and asked him where he was coming from and where he was
      going. Hunter told Detective Morgan that he had driven an old pickup from
      Arizona to have some service work done, that he rented a vehicle in
      Coeur d’Alene, picked up Storlie, and drove to Sandpoint for breakfast. Detective
      Morgan then approached the rental vehicle to speak with Storlie and detected an
      odor of marijuana. Storlie told Detective Morgan that he met Hunter at the rental
      car agency, and they then went to Sandpoint for breakfast. At that time, Detective
      Morgan noticed three boxes of heat-seal plastic bags behind the driver’s seat.
      Detective Morgan testified that based upon his training and experience, it is
      common for those types of bags to be used to package marijuana. Hunter
      informed Detective Morgan that the heat-seal bags were in the vehicle at the time
      he rented the vehicle. Storlie told Detective Morgan that he and Hunter had
      purchased the bags that morning for Storlie’s wife because she used them for
      canning and freezing food. Detective Morgan testified that, based upon his
      previous investigation, he knew that Storlie was not married. Thereafter, Trooper
      Sutton placed Hunter in handcuffs for “officer safety” reasons.
               After observing the traffic violations, Detective Morgan also called
      Officer Richard Reinking in order to have a drug detection dog at the scene. At
      the time of the stop, Officer Reinking was involved in another criminal matter
      and, as such, responded to the scene approximately thirty minutes after the stop.
      The drug dog alerted on the trunk of the vehicle, and the officers located two large
      hockey bags with approximately seventy-five pounds of marijuana inside.
               Hunter was charged with trafficking in more than twenty-five pounds of
      marijuana. He filed a motion to suppress, claiming that the officers lacked
      reasonable suspicion to stop the vehicle and probable cause to search it. The
      district court held a hearing where it granted in part, and denied in part, Hunter’s
      motion to suppress.
Hunter, Docket No. 36728.

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       When this Court resolved Hunter’s direct appeal, the Court focused on the district court’s
ruling that the traffic violations provided reasonable suspicion to stop Hunter. Hunter did not
challenge on appeal the district court’s alternative ruling that Detective Morgan’s investigation
prior to the stop also provided reasonable suspicion for the stop. Id. Regardless, this Court
concluded it could affirm the district court’s reasonable suspicion ruling on the unchallenged,
alternative ruling. Id. Specifically, this Court concluded that “the officers had reasonable and
articulable suspicion to stop the vehicle based upon both the prior investigation, as well as the
traffic violations.” Id. (emphasis added).
       On direct appeal, this Court also affirmed the district court’s ruling that the officers had
probable cause to search the vehicle. Id. Although the Court concluded that the odor of
marijuana alone satisfied the probable cause requirement for a warrantless search of the vehicle,
the Court also noted numerous other facts supporting a finding of probable cause, including that
(1) Detective Morgan had been investigating Hunter for drug smuggling for several months;
(2) during this investigation, Detective Morgan obtained details about Hunter’s smuggling
operation from Storlie’s ex-girlfriend, including that Hunter used rental cars, smuggled
marijuana across the Canadian border, usually stayed at the same hotel in Canada, and used
certain types of smuggling equipment; (3) Detective Morgan had confirmed each of these details
through his review of hotel receipts, of rental car receipts, and of the rental cars’ mileage and
also through his knowledge that Hunter was on felony probation for smuggling large amounts of
cash across the border and a search related to that crime had yielded smuggling equipment of the
type Storlie’s ex-girlfriend had described; and (4) heat-seal plastic bags, which are commonly
used to package marijuana, were in the vehicle when Trooper Sutton stopped Hunter. Id.
Additional facts supporting probable cause included that: Hunter and Storlie had inconsistent
stories about why the heat-seal bags were in the vehicle; Storlie claimed the bags were for his
wife when Detective Morgan knew from his prior investigation that Storlie was not married; and
the drug dog alerted on the vehicle. Id.; see also Hunter v. State, Docket No. 41992 (Ct. App.
June 19, 2015) (unpublished) (concluding drug dog alert supported probable cause).
       After this Court affirmed Hunter’s conviction, Hunter filed a petition for post-conviction
relief, asserting ineffective assistance of counsel.    The district court summarily dismissed
Hunter’s petition, and this Court affirmed. Hunter, Docket No. 41992. Hunter then filed a
successive petition for post-conviction relief, alleging the State violated both his federal and his

                                                 3
state due process rights by failing to disclose a DVD in violation of Brady v. Maryland, 373 U.S.
83, 86 (1963), and also by subsequently destroying the DVD.
       Hunter contends the destroyed DVD contained a video recording of the traffic stop that
Trooper Sutton created. Hunter’s contention is based on his claim that he personally knows
Trooper Sutton recorded the stop and on a document Hunter discovered through his post-
conviction efforts to collect public information about the stop. This document references a
DVD, Trooper Sutton, and a date range including the date of Hunter’s traffic stop. Assuming the
DVD actually contained a recording of the traffic stop, the document incorrectly indicates the
DVD does not relate to a felony but also inconsistently includes the description “felony
tracking.” Finally, the document indicates the Idaho State Police (ISP) destroyed the DVD in
February 2013. According to an affidavit of an ISP employee tasked with ensuring compliance
with ISP record retention policies, the DVD was destroyed pursuant to an ISP policy providing
that DVDs unrelated to felonies are to be destroyed after five years.
       After Hunter conducted certain discovery in support of his successive petition, the State
filed a motion for summary dismissal. After numerous continuances, the district court held a
hearing at which it granted the State’s motion. The district court found that the State had failed
to disclose the DVD; the DVD may or may have not been exculpatory; and Hunter failed to
provide admissible evidence that the State acted in bad faith. Based on these findings, the
district court summarily dismissed Hunter’s successive petition, and Hunter timely appeals.
                                                II.
                                  STANDARD OF REVIEW
       A petition for post-conviction relief initiates a proceeding that is civil in nature. Idaho
Code § 19-4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v.
Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921,
828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove
by a preponderance of evidence the allegations upon which the request for post-conviction relief
is based. Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition
for post-conviction relief differs from a complaint in an ordinary civil action. Dunlap v. State,
141 Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much more than a short
and plain statement of the claim that would suffice for a complaint under Idaho Rule of Civil
Procedure 8(a)(1). Rather, a petition for post-conviction relief must be verified with respect to

                                                 4
facts within the personal knowledge of the petitioner, and affidavits, records, or other evidence
supporting its allegations must be attached or the petition must state why such supporting
evidence is not included with the petition. I.C. § 19-4903. In other words, the petition must
present or be accompanied by admissible evidence supporting its allegations, or the petition will
be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011).
       Idaho Code Section 19-4906 authorizes summary dismissal of a petition for
post-conviction relief, either pursuant to a motion by a party or upon the court’s own initiative, if
it appears from the pleadings, depositions, answers to interrogatories, and admissions and
agreements of fact, together with any affidavits submitted, that there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. When considering
summary dismissal, the district court must construe disputed facts in the petitioner’s favor, but
the court is not required to accept either the petitioner’s mere conclusory allegations,
unsupported by admissible evidence, or the petitioner’s conclusions of law. Roman v. State, 125
Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715
P.2d 369, 372 (Ct. App. 1986). Moreover, the district court, as the trier of fact, is not constrained
to draw inferences in favor of the party opposing the motion for summary disposition; rather, the
district court is free to arrive at the most probable inferences to be drawn from uncontroverted
evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such
inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify
them. Id.
       Claims may be summarily dismissed if the petitioner’s allegations are clearly disproven
by the record of the criminal proceedings, if the petitioner has not presented evidence making a
prima facie case as to each essential element of the claims, or if the petitioner’s allegations do
not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281
(2010); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary
dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a
matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in
the petitioner’s favor. For this reason, summary dismissal of a post-conviction petition may be
appropriate even when the State does not controvert the petitioner’s evidence. See Roman, 125
Idaho at 647, 873 P.2d at 901.



                                                  5
       Conversely, if the petition, affidavits, and other evidence supporting the petition allege
facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be
summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004);
Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of
material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues.
Goodwin, 138 Idaho at 272, 61 P.3d at 629.
       On appeal from an order of summary dismissal, we apply the same standards utilized by
the trial courts and examine whether the petitioner’s admissible evidence asserts facts which, if
true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925,
929 (2010); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free
review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33
P.3d 841, 844 (Ct. App. 2001).
                                                III.
                                           ANALYSIS
       As an initial matter, we note the record is somewhat unclear whether Hunter is asserting
both a Brady violation for nondisclosure of the DVD and also a claim for destruction of
evidence. See Arizona v. Youngblood, 488 U.S. 51, 56-58 (1988) (setting forth standard for
analysis of due process violation for failure to preserve evidence). At oral argument, Hunter
argued he was only asserting a single claim based on the State’s conduct, and in response, the
State took the position Hunter could not assert a Brady violation after the State destroyed the
DVD. Nevertheless, Hunter cites Brady in his successive petition and alleges that both the
State’s failure to disclose the DVD and its failure to preserve the DVD violated his due process
rights. Further, the parties have referred to both the Brady and Youngblood standards at various
times in the record, including in their summary dismissal briefing and their appellate briefing.
Accordingly, we address Hunter’s allegations under both standards.
A.     Hunter Failed to Establish a Genuine Factual Issue of a Brady Violation
       On appeal, Hunter argues he has “met the standard for showing a due process violation
set forth in . . . Brady.” The State responds that, contrary to Brady, Hunter failed to present
evidence that the DVD was exculpatory and failed to show prejudice. We agree Hunter failed to
establish a genuine issue of material fact of a Brady violation.



                                                 6
       The State has a duty under Brady and its progeny to disclose to the defendant all material
exculpatory evidence known to it or in its possession. State v. Lewis, 144 Idaho 64, 66-67, 156
P.3d 565, 567-58 (2007).      To establish a Brady violation, the petitioner must show three
elements: “[1] The evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the
State, either willfully or inadvertently; and [3] prejudice must have ensued.” Thumm v. State,
___ Idaho ___, ___, ___ P.3d ___, ___ (Aug. 22, 2019). Prejudice is shown where the favorable
evidence “is material” and “there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceedings would have been different.” Id. A
reasonable probability is shown when the State’s failure to disclose evidence “undermines the
confidence in the outcome of the trial,” but such a showing requires a substantial likelihood of a
different result, not just a conceivable likelihood. Id. “[E]vidence is material for purposes of a
due process analysis if there is a reasonable probability that disclosure of the undisclosed
evidence would have produced a different outcome in the proceeding.” Id.
       The State does not dispute it failed to disclose the DVD. When Hunter requested that the
State produce any recordings of the traffic stop, the State responded that none existed.
Accordingly, our analysis focuses on the second and third elements of a Brady violation, i.e.,
whether the DVD was exculpatory and whether its suppression prejudiced Hunter.
       Hunter argues the State’s failure to disclose the DVD prejudiced him because he was not
able to effectively dispute the officers’ testimony and to undermine their credibility at the
suppression hearing. Hunter’s argument, however, misapprehends his burden to show prejudice.
The Idaho Supreme Court has ruled that to establish prejudice for purposes of a Brady violation,
a petitioner must show a substantial likelihood of a reasonable probability that the evidence’s
disclosure would have produced a different outcome in the proceeding. Thumm, ___ Idaho at
___, ___ P.3d at ___. Hunter’s assertion that the DVD would have shown inconsistencies in the
officers’ testimony is inadequate to show a genuine material factual issue of prejudice.
       Indeed, Hunter’s speculation about the DVD’s contents actually shows the DVD would
not have likely produced a different outcome. According to Hunter’s affidavit submitted in
support of his successive petition, the DVD would have shown that: (1) Trooper Sutton never
approached the vehicle’s passenger side; (2) Detective Morgan took four to six minutes to arrive
at the scene; (3) Detective Morgan did not observe traffic violations because he was never

                                                7
following Hunter’s vehicle; (4) Detective Morgan never approached the vehicle’s passenger side;
(5) Detective Morgan was driving a different vehicle than he testified he was driving when
Trooper Sutton stopped Hunter; and (6) traffic was heavy at the time of the stop.
       That Trooper Sutton’s recording of the stop of Hunter would have contained some of
these facts is difficult to imagine. For example, that Trooper Sutton’s recording of the stop of
Hunter’s vehicle would have shown what Detective Morgan witnessed several minutes before
that stop is highly unlikely. Regardless, even assuming the DVD would have shown the facts
Hunter alleges, those facts bear on whether Detective Morgan actually witnessed Hunter commit
traffic violations and whether the officers detected a marijuana odor on the vehicle’s passenger
side. As discussed above, however, the district court’s finding of reasonable suspicion and
probable cause are alternatively based on facts independent of the traffic violations and the
marijuana odor, such as Detective Morgan’s prior investigation, the presence of heat-seal bags,
Hunter’s and Storlie’s inconsistent stories, and the drug dog’s alert on the vehicle. As a result,
the facts Hunter contends the DVD contained would not have likely resulted in Hunter’s motion
to suppress being granted, and thus Hunter has failed to show a genuine material factual issue
regarding prejudice.
       Hunter also fails to show a genuine material factual issue that the DVD was exculpatory.
Relying on Stuart v. State, 127 Idaho 806, 907 P.2d 783 (1995), Hunter argues the State’s
concealment of the DVD shows its exculpatory value. Stuart, however, is distinguishable. In
that case, Stuart appealed the district court’s dismissal of his petition for post-conviction relief
claiming the State taped his attorney-client communications and failed to disclose a tape
recording of a conversation he had with his sister. Id. at 812, 907 P.2d at 789. The district court
dismissed Stuart’s claims. Id.
       On appeal, the Idaho Supreme Court concluded that the taped telephone call between
Stuart and his sister would not have been exculpatory but that the logbook’s intentional
destruction was attributable to the sheriff’s office. Id. at 814, 907 P.2d at 791. Further, the Court
concluded “the failure to provide discovery regarding the [nonexculpatory] taped phone call is a
sufficiently proximate cause of the destruction of the phone log evidence as to rise to the level of
bad faith under [Youngblood, 488 U.S. 51 (setting forth standard for due process violation for
failure to preserve evidence)].” Stuart, 127 Idaho at 816, 907 P.2d at 793. The Court reasoned
that “although the prosecution did not conceal the existence of the phone logs, it did conceal the

                                                 8
existence of the tape-recording of Stuart’s phone call to his sister which, if disclosed, would have
inevitably led to further discovery regarding the sheriff’s surreptitious tape recording sufficient
to preserve the phone logs.” Id. Regarding the destroyed phone log, the Court acknowledged
“[t]he ‘exculpatory value’ of the destroyed evidence is, concededly, indirect in [Stuart’s] case”
but because of “the unique context” of the case, Stuart established the phone log’s exculpatory
value. Id. at 814 n.7, 907 P.2d at 791 n.7.
       Hunter asserts that because the State did not disclose the DVD, it must have known the
DVD was exculpatory based on the Stuart Court’s statement that “concealment is one method of
proving the exculpatory value of the evidence.” See id. at 816, 907 P.2d at 793. Notably,
however, the Stuart Court made this statement in the context of an analysis of Youngblood,
which addresses a due process violation for the failure to preserve evidence versus a Brady
violation for a failure to disclose evidence. We are not persuaded the mere fact of the State’s
nondisclosure of the DVD alone satisfies Hunter’s burden to show a genuine material factual
issue that the DVD was exculpatory for purposes of a Brady violation. Accepting Hunter’s
argument would effectively eliminate the first element of the test for a Brady violation: Every
petitioner could simply avoid proving the exculpatory value of previously nondisclosed evidence
by simply asserting the State’s nondisclosure itself established the evidence’s exculpatory value.
Because Hunter has failed to raise a genuine issue of material fact that the DVD had exculpatory
value and also that its suppression prejudiced him, the district court did not err in dismissing
Hunter’s Brady claim.
B.     Hunter Failed to Establish a Genuine Factual Issue That the State Acted in Bad
       Faith
       On appeal, Hunter challenges the district court’s summary dismissal of his claim that the
State violated his due process rights by destroying the DVD. In support, he argues “he raised a
genuine issue of material fact [that the DVD] was destroyed in bad faith” because the State
destroyed it “in contravention of the [ISP] policies regarding retention of evidence.” The State’s
duty to preserve evidence for a defendant is implicit in the State’s duty to disclose exculpatory
evidence. Lewis, 144 Idaho at 67, 156 P.3d at 568. The State’s destruction of evidence is not a
per se violation of a defendant’s rights. Id. Rather, whether a due process violation has occurred
depends on the nature of the proceedings, of the evidence, and of the circumstances surrounding
the destruction. Id. To determine if the State violated a defendant’s due process rights by failing
to preserve evidence, the Idaho Supreme Court has applied a balancing test which examines:
                                                 9
(1) whether the evidence was material to the defendant’s guilt or punishment; (2) whether the
evidence’s loss or destruction prejudiced the defendant; and (3) whether the government was
acting in good faith when it destroyed or lost the evidence. Id.; see also California v. Trombetta,
467 U.S. 479, 489 (1984) (requiring showing of exculpatory value apparent before destruction
and defendant’s inability to obtain comparable evidence by reasonably available means);
Youngblood, 488 U.S. at 58 (additionally requiring showing police acted in bad faith).
       Unlike the federal analysis applied under Trombetta and Youngblood to establish a due
process violation for destruction of evidence, the Idaho Supreme Court in Lewis applies a
presumption in the petitioner’s favor when the destroyed evidence’s exculpatory value is
unknown: “Where the value of the evidence is unknown, the materiality and prejudice elements
are presumed and the inquiry focuses on the presence of bad faith.” Lewis, 144 Idaho at 67, 156
P.3d at 568 (emphasis added). “Bad faith is more than mere negligence.” Id. Bad faith refers to
“a calculated effort to circumvent the disclosure requirements established by [Brady] and its
progeny.” Trombetta, 467 U.S. at 488. “[U]nless a criminal defendant can show bad faith on the
part of the police, failure to preserve potentially useful evidence does not constitute a denial of
due process of law.” Youngblood, 488 U.S. at 58.
       In this case, the district court correctly concluded the DVD’s exculpatory value is
unknown. As a result, materiality and prejudice are presumed according to Lewis and our
inquiry focuses on whether the State acted in bad faith by destroying the DVD. 1 See Lewis, 144
Idaho at 67, 156 P.3d at 568. Hunter argues the State acted in bad faith because: (1) the State
failed to produce the DVD in response to Hunter’s discovery request; (2) the DVD was
“destroyed in contravention of the [ISP] policies regarding retention of evidence”; and (3) the
DVD was inconsistently marked as both relating and not relating to a felony.
       We disagree that Hunter has established a genuine material factual issue of the State’s
purported bad faith. Hunter does not offer any admissible evidence of a calculated, intentional
destruction of the DVD in an effort to circumvent the State’s disclosure obligation under Brady.
See Trombetta, 467 U.S. at 488 (ruling bad faith refers to “a calculated effort to circumvent the

1
       Because the exculpatory value of the DVD is unknown, Lewis allows for a presumption
of materiality and prejudice in Hunter’s favor. As a result, the State analysis under Lewis is
more protective of Hunter’s rights than the federal analysis under Youngblood. For this reason,
we analyze Hunter’s claim under Lewis. Cf. State v. Edney, 145 Idaho 694, 696, 183 P.3d 782,
784 (Ct. App. 2008) (applying standard articulated in Lewis).
                                                10
disclosure requirements”). Absent admissible evidence of intentional concealment, Hunter’s
destruction of evidence claim fails. See, e.g., Youngblood, 488 U.S. at 58 (ruling police failure to
protect semen samples that may have been on victim’s clothing and perform tests on semen
samples was not bad faith but negligent at most); Nelson v. State, 157 Idaho 847, 856, 340 P.3d
1163, 1172 (Ct. App. 2014) (ruling destruction of rape kit contents not bad faith absent showing
of deliberate disposal of evidence to prevent use at trial); State v. Edney, 145 Idaho 694, 697, 183
P.3d 782, 785 (Ct. App. 2008) (ruling destruction of methamphetamine lab was pursuant to
department policy and was not bad faith); Lewis, 144 Idaho at 67, 156 P.3d at 568 (ruling
unintentional loss of recording was not bad faith); State v. Casselman, 141 Idaho 592, 596, 114
P.3d 150, 154 (Ct. App. 2005) (ruling loss of photographs of victim’s injuries not bad faith when
no evidence police intentionally destroyed or lost them to prevent defendant from obtaining
exculpatory evidence); State v. Dopp, 129 Idaho 597, 607, 930 P.2d 1039, 1049 (Ct. App. 1996)
(ruling destruction of sweatshirt not bad faith absent evidence law enforcement disposed of it to
prevent defendant from obtaining exculpatory evidence). Compare Stuart, 127 Idaho at 808, 907
P.2d at 785 (1995) (ruling sheriff’s intentional destruction of phone logs violated defendant’s due
process rights).
       Further, the record does not support Hunter’s assertion that the DVD was destroyed in
contravention of the ISP’s policies. Rather, the record shows only that the DVD was originally
mislabeled and then identified (albeit inconsistently) in the ISP’s record system as not relating to
a felony, which allowed for the DVD’s destruction after five years pursuant to ISP’s record
retention policy. No evidence indicates the State intentionally mislabeled or misidentified the
DVD in an effort to conceal the evidence. Further, the ISP employee who destroyed the DVD
attested she destroyed it pursuant to ISP policy and in accordance with ISP’s regular business
practices.   That this destruction occurred during the pendency of Hunter’s original post-
conviction petition establishes only coincidence, not bad faith. No evidence supports Hunter’s
suggestion that the ISP employee who destroyed the DVD pursuant to ISP policy (or anyone else
at ISP) knew the DVD related to Hunter’s pending petition. At most, the State’s conduct can
only be characterized as negligence.
       Absent bad faith, Hunter’s claim the State violated his due process rights by destroying
the DVD fails, as does his argument that he is entitled to an inference under the spoliation



                                                11
doctrine that the DVD would have been favorable to him. See id., 127 Idaho at 816, 907 P.2d at
793 (requiring a showing of intentional destruction for inference under spoliation doctrine).
C.     The District Court Did Not Abuse its Discretion by Denying Hunter’s Motion for
       Continuance
       Finally, Hunter challenges the district court’s denial of his motion for a continuance of
the summary dismissal hearing. Hunter contends the basis for this motion was his counsel’s
untimely filing of his response to the State’s motion for summary dismissal. Whether Hunter
indeed moved for a continuance, however, is unclear from the transcript of the hearing.
According to the transcript, Hunter filed a response to the State’s motion approximately
fifteen minutes before the hearing began, and the district court declined to consider that late
filing. During the hearing, Hunter’s counsel requested leave to call Hunter (who was present at
the hearing) to testify presumably about the contents of the late filing. The district court denied
this request because a summary dismissal hearing is not an evidentiary hearing. Then, after both
parties presented oral argument, Hunter’s counsel informed the district court that Hunter “may
wish to make a request to the Court to proceed pro se.” Thereafter, Hunter himself addressed the
district court and asked to proceed pro se. The district court denied this request as untimely
because “[a]rguments have been made to the Court and the record is before the Court” and also
because the case had been “pending for literally years.” Regardless of the actual nature of
Hunter’s requests at the hearing, both parties on appeal analyze the requests as a motion for a
continuance. Accordingly, we also analyze Hunter’s requests as such.
       The decision to grant a motion for a continuance rests within the sound discretion of the
trial court. State v. Ransom, 124 Idaho 703, 706, 864 P.2d 149, 152 (1993). 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: (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.
Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018). Unless an appellant
shows his substantial rights have been prejudiced by the motion’s denial, an appellate court can
only conclude the district court did not abuse its discretion. State v. Cagle, 126 Idaho 794, 797,
891 P.2d 1054, 1057 (Ct. App. 1995).
       Hunter argues the district court abused its discretion because his late filing was not his
fault but his counsel’s fault. Fault aside, Hunter has failed to show his substantial rights were
                                                12
prejudiced by the district court’s denial of his motion. Hunter had previously filed a response to
the State’s summary dismissal motion. Hunter’s late filing, which the district court declined to
consider, was his second response. Accordingly, the district court’s refusal to consider Hunter’s
late response did not deprive Hunter of an opportunity to respond to the State’s motion.
       Further, the information the district court declined to consider in the late filing does not
relate to Hunter’s claims regarding the DVD.           Rather, as Hunter describes on appeal, the
information relates to drug ledgers, impounded property, Hunter’s rental car, and purported
information about and from employees of the rental car agency. None of this information bears
on whether the State violated Hunter’s due process rights by not disclosing and destroying the
DVD, which were the only claims properly before the district court. As Hunter’s counsel
acknowledged during the hearing, the DVD “was the only piece of evidence that Mr. Hunter had
to warrant a successive post-conviction [petition].”
       Moreover, Hunter does not challenge the basis for the district court’s denial of his
requests, i.e., their untimeliness. The record indicates that the State filed its summary dismissal
motion more than a year and three months before the hearing occurred and that the hearing date
had been previously continued as many as seven times.             On appeal, Hunter specifically
acknowledges “the district court’s concerns about timeliness were generally reasonable” and
“understandable.” Based on this record, the district court did not abuse its discretion in denying
Hunter’s requests.
                                                IV.
                                         CONCLUSION
       Hunter failed to present admissible evidence sufficient to show a genuine issue of
material fact that the State violated his due process rights by failing to disclose the DVD and
then destroying it. Further, Hunter failed to show the district court abused its discretion when
denying his motion for a continuance. Accordingly, we affirm the district court’s summary
dismissal of Hunter’s successive petition for post-conviction relief.
       Chief Judge GRATTON and Judge LORELLO CONCUR.




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