                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 37480

DON KELLY COLE,                                    )      2011 Unpublished Opinion No. 335
                                                   )
       Petitioner-Appellant,                       )      Filed: January 27, 2011
                                                   )
v.                                                 )      Stephen W. Kenyon, Clerk
                                                   )
STATE OF IDAHO,                                    )      THIS IS AN UNPUBLISHED
                                                   )      OPINION AND SHALL NOT
       Respondent.                                 )      BE CITED AS AUTHORITY
                                                   )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Adams County. Hon. Ron Schilling, District Judge; Hon. Gregory F. Frates,
       Magistrate.

       District court decision affirming magistrate court’s denial of post-conviction
       relief, affirmed.

       Don Kelly Cole, Council, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jennifer E. Birken, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

LANSING, Judge
       Don Kelly Cole appeals pro se from the district court’s decision affirming the magistrate
court’s denial of Cole’s petition for post-conviction relief.
                                                  I.
                                         BACKGROUND
       The facts giving rise to Cole’s underlying conviction were described in this Court’s
decision on his appeal from that judgment. State v. Cole, Docket No. 34525 (Ct. App. Aug. 25,
2008) (unpublished). On the day in question, Cole wanted to go fishing with his son. Cole and
his wife, Vicki, had been in an ongoing fight and so to prevent her from following, Cole disabled
Vicki’s vehicle. Vicki called a mechanic but Cole instructed the mechanic not to fix it. In
retaliation, Vicki attempted to disable Cole’s truck. She hit a side wing window on the door of
the truck with her hand so she could reach through, unlock the door, pop the hood latch and



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disconnect the pickup’s wires. When she was unsuccessful, Vicki picked up a rock to throw at
the truck, telling Cole to fix her vehicle or she would disable his with the rock. Cole defended
his truck by placing himself between it and Vicki. Vicki threw the rock past Cole’s head and
broke the windshield, and she later hit the truck again with another rock.
       The couple’s son called the police. When the officers arrived, Cole was sitting on
Vicki’s back, pinning her arm behind her. Cole admitted to pushing Vicki during the alteration
and holding her by the neck area at one point. The officers observed that Vicki had injuries
including a large scrape on her right shoulder, bruises on her arms, and redness around her neck.
       The officers informed Cole that they were going to arrest him for domestic battery. Cole
refused to be arrested due to his belief that he was acting legally in defending his truck. Wanting
to avoid a physical altercation, the officers attempted to talk Cole into complying but Cole
walked away from the officers and up a hill. After more unsuccessful attempts to talk Cole into
compliance, the officers left.
       Cole later appeared in court in response to a summons. He was charged with two
misdemeanors, domestic battery, Idaho Code § 18-918, and resisting and obstructing officers,
I.C. § 18-705. A jury acquitted him of domestic battery but convicted him of resisting and
obstructing an officer.
       Cole’s conviction was upheld by this Court on appeal. State v. Cole, Docket No. 34525
(Ct. App. Aug. 25, 2008) (unpublished). In that opinion we addressed Cole’s assertion that the
trial court erred by refusing to give a proposed jury instruction that stated:
               The Defendant has the right to resist without violence an officer who
       conducts an unlawful arrest, detention and or criminal investigation.
               The Court further instructs you if the arrest is unlawful, the Defendant has
       the right to resist, obstruct or oppose without violence such unlawful arrest.

Id. We determined that the trial court was not required to give the requested instruction because
the subject matter had been sufficiently covered by other instructions given to the jury. Id. The
jury was instructed that in order to convict Cole, they must find that “he willfully resisted and
obstructed the officer ‘[i]n the discharge, or attempt to discharge, of any duty of [the officer’s]
office.’ (Emphasis added.) The jury was further instructed that ‘[t]he word ‘duty’ includes only
the lawful and authorized acts of a public officer.’” Id. We held that from these instructions
Cole was able to, and did, argue that because no probable cause existed to arrest him, the
officer’s attempted arrest was unlawful and therefore his peaceful resistance could not be found

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to have been illegally resisting and obstructing. Id. We further determined that there was
sufficient evidence that the officers had probable cause to arrest Cole. Specifically, we held that
the officers’ observation of Cole sitting on his wife’s back and pinning her arms behind her,
Cole’s admission to pushing Vicki and holding her by the neck area, and the officers’
observation of physical injuries to Vicki including a scrape and bruising, were sufficient to give
the officers probable cause to believe that Cole had committed the crime of domestic battery,
warranting an arrest. Id.
       Cole thereafter filed this action for post-conviction relief, asserting ineffective assistance
of counsel. The magistrate court, following an evidentiary hearing, denied Cole’s petition. Cole
appealed to the district court, which affirmed the magistrate court’s decision.
       Cole now appeals to this Court. He argues that his counsel was ineffective for failing to
take measures at trial to demonstrate to the jury that the police did not have probable cause to
arrest Cole, making his arrest unlawful such that he could not have been found guilty of the
resisting and obstructing charge.
                                                 II.
                                          DISCUSSION
       Cole’s claims of error in the lower courts stem from his belief that because he was
defending his property, the truck, he had a valid defense to a domestic violence charge which the
police failed to take into account in determining whether there was probable cause to arrest Cole.
Cole asserts the police attempted to arrest him based only on the marks on Vicki and no other
facts, which Cole argues is not a proper probable cause assessment that takes into account the
totality of the circumstances. Cole argues this is evident because the police officers repeatedly
referred to a department policy that they were required to make an arrest after being summoned
to a domestic violence situation if one of the parties has physical marks of violence. Because the
police officers failed to make a valid probable cause assessment on the scene, Cole argues, the
attempted arrest was unlawful and his attorney was ineffective for failing to take measures, such
as questioning the police witnesses and arguing for jury instructions, that would have brought the
unlawfulness of the attempted arrest to the jury’s attention.
       In an appeal from a decision of the district court rendered in its appellate capacity, we
review the decision of the district court directly. Losser v. Bradstreet, 145 Idaho 670, 672, 183
P.3d 758, 760 (2008); Nicholls v. Blaser, 102 Idaho 559, 561, 633 P.2d 1137, 1139 (1981). We


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examine the record before the magistrate, however, 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. Substantial and competent evidence is
relevant evidence that a reasonable mind might accept to support a conclusion. Bradford v.
Roche Moving & Storage, Inc., 147 Idaho 733, 736, 215 P.3d 453, 456 (2009); Carter v. Carter,
143 Idaho 373, 378, 146 P.3d 639, 644 (2006); Bouten Const. Co. v. H.F. Magnuson Co., 133
Idaho 756, 761, 992 P.2d 751, 756 (1999).
       In order to prevail in a post-conviction proceeding, the applicant must prove the
allegations upon which the request for post-conviction relief is based by a preponderance of the
evidence.   I.C. § 19-4907; Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004);
McKinney v. State, 133 Idaho 695, 699-700, 992 P.2d 144, 148-49 (1999). When reviewing a
decision denying post-conviction relief after an evidentiary hearing, an appellate court will not
disturb the lower court’s factual findings unless they are clearly erroneous. I.R.C.P. 52(a);
Boman v. State, 129 Idaho 520, 525, 927 P.2d 910, 915 (Ct. App. 1996); Russell v. State, 118
Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to
be given to their testimony, and the inferences to be drawn from the evidence are all matters
solely within the province of the trial court. Dunlap, 141 Idaho at 56, 106 P.3d at 382; Queen v.
State, 146 Idaho 502, 504, 198 P.3d 731, 733 (Ct. App. 2008); Larkin v. State, 115 Idaho 72, 73,
764 P.2d 439, 440 (Ct. App. 1988). We exercise free review of the lower court’s application of
the relevant law to the facts. Dunlap, 141 Idaho at 56, 106 P.3d at 382; Queen, 146 Idaho at 504,
198 P.3d at 733.
       To prevail on an ineffective assistance of counsel claim, in a post-conviction action, the
defendant must show that the attorney’s performance was deficient, and that the defendant was
prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hassett v.
State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the
applicant has the burden of showing that the attorney’s representation fell below an objective
standard of reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988);
Suits v. State, 143 Idaho 160, 162, 139 P.3d 762, 764 (Ct. App. 2006). To establish prejudice,
the applicant must show a reasonable probability that, but for the attorney’s deficient
performance, the outcome of the trial would have been different. Id. This Court has long
adhered to the proposition that tactical or strategic decisions of trial counsel will not be second-


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guessed on appeal unless those decisions are based on inadequate preparation, ignorance of
relevant law, or other shortcomings capable of objective evaluation. Howard v. State, 126 Idaho
231, 233, 880 P.2d 261, 263 (Ct. App. 1994).
       By Cole’s post-conviction action, he simply reiterates the same claims concerning
probable cause that we rejected in his direct appeal from the judgment of conviction. As noted
above, in the direct appeal this Court held that at the time the officers attempted to arrest Cole,
they had probable cause to believe that he had committed the offense of domestic battery. That
conclusion could not have been changed even if Cole’s attorney had elicited testimony that the
officers based their decision to arrest solely upon marks on Vicki. This is so because the
probable cause standard is an objective one. State v. Schwarz, 133 Idaho 463, 468, 988 P.2d 689,
694 (1999); State v. Wilson, 120 Idaho 643, 647, 818 P.2d 347, 351 (Ct. App. 1991). In
assessing probable cause, we ask whether the facts available to the officer at the moment of
arrest (in this case the attempted arrest) were sufficient to warrant a prudent man in believing that
a suspect has committed or is committing an offense. State v. Hollon, 136 Idaho 499, 502, 36
P.3d 1287, 1290 (Ct. App. 2001). An officer’s subjective beliefs concerning that determination
are irrelevant. Schwarz, 133 Idaho at 468, 988 P.2d at 694. Thus, regardless of whether the
officers arrested solely based on the physical marks of violence, objectively the officers had
within their knowledge sufficient facts to support probable cause to arrest Cole. As stated in our
prior opinion, the officers observed Cole sitting on his wife’s back while pinning her arm behind
her, observed physical injuries to Vicki, and heard Cole admit to pushing Vicki and holding her
by the neck area. Cole’s contention that the officers also had within their knowledge evidence
supporting a defense of property claim by Cole does not vitiate probable cause. Probable cause
does not require the officers to have sufficient evidence to secure a conviction. Hollon, 136
Idaho at 502, 36 P.3d at 1290. As the magistrate judge stated:
       [T]he officers . . . make a choice based on the information before them at the time
       as to whether they believe [conduct] to be unlawful or not. . . . [Y]ou think an
       officer has ever heard anybody say I didn’t do it or something else happened? . . .
       [T]he fact that it’s been said and there is conflicting information means the
       officers . . . got to use their discretion as to whether they are going to arrest or
       not.”

The fact that information indicating a possible defense to a crime was known to the officers at
the time does not mean that other relevant facts were insufficient to establish probable cause. As



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we held in our prior opinion, the officers here possessed probable cause to believe that Cole had
committed domestic battery against Vicki, regardless of any damage the officers observed to
Cole’s truck.
       It follows that Cole has not shown either deficient performance by his attorney or
prejudice from the alleged deficiency. Even had Cole’s attorney done more to bring to light the
officers’ subjective belief that no matter what other circumstances were present, they had to
arrest Cole solely because they observed physical injuries to Vicki, it is apparent that the
outcome of the trial would not have changed since other facts known to the officers established
probable cause.
       Likewise, Cole’s claim of ineffective assistance regarding jury instructions fails. As we
stated in our prior opinion, the jury was sufficiently instructed on the law regarding unlawful
arrests as it related to Cole’s guilt or innocence of the resisting and obstructing charge.
Therefore, Cole cannot have been prejudiced by counsel’s alleged failure to propose another
instruction for subject matter that had already been sufficiently covered. And, because the jury
was properly instructed, Cole has not shown that the outcome of the trial would have been
affected by a different jury instruction.
       The district court’s decision affirming the magistrate court’s judgment denying Cole’s
petition for post-conviction relief is affirmed. Costs to respondent.
       Chief Judge GRATTON and Judge MELANSON CONCUR.




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