               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38671

STATE OF IDAHO,                                   )     2012 Unpublished Opinion No. 760
                                                  )
       Plaintiff-Respondent,                      )     Filed: December 14, 2012
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
MICHAEL J. BREINHOLT,                             )     THIS IS AN UNPUBLISHED
                                                  )     OPINION AND SHALL NOT
       Defendant-Appellant.                       )     BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Patrick H. Owen, District Judge.

       Judgment of conviction           for   four    counts    of   selling   unregistered
       securities, affirmed.

       Michael J. Breinholt, Meridian, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Michael J. Breinholt appeals from his judgment of conviction entered upon his guilty
pleas to four counts of selling unregistered securities. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       Upon being sued by the Idaho Department of Finance, Breinholt admitted to committing
fraud under the Uniform Securities Act, I.C. § 30-14-501, and agreed to the entry of a judgment
against him for five million dollars. After resolution of the civil case, a grand jury indicted
Breinholt on eight counts of securities fraud, seven counts of selling unregistered securities, two
counts of grand theft, and six sentencing enhancements for knowingly accepting money
representing equity in a person’s home in connection with committing securities fraud. Breinholt
initially represented himself in this criminal case, but was later appointed counsel. Breinholt
secured private counsel and, shortly thereafter, delivered a letter to counsel unequivocally firing



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him. Breinholt’s counsel moved to withdraw. The trial judge granted that motion and appointed
the public defender’s office to represent Breinholt as stand-by counsel. Breinholt made several
pro se filings, including a document entitled “Motion in Limine to Dismiss Criminal Complaint.”
In that motion, Breinholt asserted the trial judge, who had also presided over the civil case,
abused his discretion because the judge “should have disqualified himself to preside over the
criminal court with the same defendant on related case allegations; that there exists a prejudicial
or an appearance of bias in this case.” At a subsequent hearing on both parties’ outstanding
pretrial motions, the state and Breinholt informed a substitute judge 1 that they had reached a
resolution and Breinholt wished to plead guilty. Pursuant to a plea agreement, Breinholt entered
Alford 2 pleas to four counts of selling unregistered securities, I.C. §§ 30-14-301 & 30-14-508,
and the state dismissed the remaining charges.        Breinholt secured new private counsel to
represent him at the sentencing hearing. The trial judge withheld judgment, placed Breinholt on
probation for twenty years, imposed 180 days of incarceration, and ordered that Breinholt pay
$240,000 in restitution. Breinholt appeals.
                                                II.
                                           ANALYSIS
       Breinholt argues that the trial judge should have been disqualified from presiding over
this case.   It is unclear whether Breinholt contends that the substitute judge should have
construed his “Motion in Limine to Dismiss Criminal Complaint” as a motion to disqualify the
trial judge for cause and granted that motion or whether Breinholt contends that the trial judge
should have affirmatively recused himself.
       Breinholt’s “Motion in Limine to Dismiss Criminal Complaint” did not satisfy the
requirements of a motion to disqualify a judge for cause pursuant to I.C.R. 25. Specifically,
while I.C.R. 25(b)(4) allows for the disqualification of a judge who is biased or prejudiced for or
against any party or that party’s case in the action, I.C.R. 25(b)(c) requires that any such
disqualification for cause be made by a motion to disqualify and accompanied by an affidavit of
the party or that party’s attorney stating distinctly the grounds upon which disqualification is



1
       Due to a scheduling conflict, a substitute judge presided over this hearing. The trial
judge returned to preside over Breinholt’s sentencing hearing.
2
       See North Carolina v. Alford, 400 U.S. 25 (1970).

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based and the facts relied upon in support of the motion. In his “Motion in Limine to Dismiss
Criminal Complaint,” Breinholt did not reference I.C.R. 25 and did not file any affidavit in
support of the motion. Therefore, Breinholt cannot show that the substitute judge erred by not
construing his “Motion in Limine to Dismiss Criminal Complaint” as a motion to disqualify the
trial judge for cause and not granting that motion.
       Even if Breinholt could show that the substitute judge erred by declining to construe
Breinholt’s motion as a motion to disqualify and declining to grant that motion, Breinholt is
precluded from challenging any such error because the doctrine of invited error applies to estop a
party from asserting an error when his or her own conduct induces the commission of the error.
State v. Atkinson, 124 Idaho 816, 819, 864 P.2d 654, 657 (Ct. App. 1993). One may not
complain of errors one has consented to or acquiesced in. State v. Caudill, 109 Idaho 222, 226,
706 P.2d 456, 460 (1985); State v. Lee, 131 Idaho 600, 605, 961 P.2d 1203, 1208 (Ct. App.
1998). In short, invited errors are not reversible. State v. Gittins, 129 Idaho 54, 58, 921 P.2d
754, 758 (Ct. App. 1996). Here, during the hearing on Breinholt’s “Motion in Limine to Dismiss
Criminal Complaint,” the substitute judge inquired of Breinholt whether he wanted to have the
trial judge disqualified from the case. Breinholt replied that he would have to do some research
to determine whether that was what he wanted. The substitute judge then informed Breinholt
that, if he wanted to have the trial judge removed from the case, he would have to file a motion
to disqualify the judge for cause prior to sentencing. Breinholt responded that he understood, but
never filed any motion. Thus, Breinholt acquiesced in any error made by the substitute judge in
declining to construe Breinholt’s motion as a motion to disqualify the trial judge for cause and
declining to grant that motion.
       Although Breinholt did not file an appropriate motion to disqualify the trial judge for
cause pursuant to I.C.R. 25, this Court will consider whether the judge should have affirmatively
recused himself. The Code of Judicial Conduct, Canon 3(E)(1) & (a), provides that a judge shall
disqualify himself or herself in a proceeding where the judge’s impartiality might reasonably be
questioned, including, but not limited to, instances where the judge has personal knowledge of
disputed evidentiary facts that might reasonably affect the judge’s impartiality in the
proceedings. This appears to be the ground upon which Breinholt relies in his “Motion in
Limine to Dismiss Criminal Complaint” and on appeal. Specifically, Breinholt argues that the
trial judge should have affirmatively recused himself from this case because “it was obvious to


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anyone that [the judge’s] impartiality might reasonably be questioned due to him being the judge
in the civil case.” However, Breinholt does not assert, and there is no indication, that the trial
judge had personal knowledge of disputed evidentiary facts. 3 Therefore, the only question we
need to address is whether the trial judge placed himself in a position in which his impartiality
might reasonably be questioned by sitting on this case. See State v. Wood, 132 Idaho 88, 95, 967
P.2d 702, 709 (1998).
       Whether a judge’s involvement in a case reaches a point where disqualification from
further participation in a defendant’s case becomes necessary is left to the sound discretion of the
judge. Sivak v. State, 112 Idaho 197, 206, 731 P.2d 192, 201 (1986). A statement of former
United States Supreme Court Chief Justice William Rehnquist is instructive as to how a judge
might make a recusal decision. See Microsoft Corp. v. United States, 530 U.S. 1301, 1302
(2000). There, the Chief Justice was considering whether he should recuse himself in an appeal
where his son was a partner in a firm representing a party in the appeal. Chief Justice Rehnquist
considered 28 U.S.C. § 455, a federal statute that sets forth the legal criteria for the
disqualification of federal judicial officers. Although the federal statute and its interpretation are
not binding on this Court, the Idaho Supreme Court has determined that Chief Justice
Rehnquist’s statement is instructive because of the similar purpose and language in Canon 3 of
the Idaho Code of Judicial Conduct and 28 U.S.C. § 455. See Bradbury v. Idaho Judicial
Council, 149 Idaho 107, 114, 233 P.3d 38, 45 (2009).            In Microsoft Corp., Chief Justice
Rehnquist stated:
               Section 455(a) contains the more general declaration that a Justice “shall
       disqualify himself in any proceeding in which his impartiality might reasonably
       be questioned.” As this Court has stated, what matters under § 455(a) “is not the
       reality of bias or prejudice but its appearance.” Liteky v. United States, 510 U.S.
       540, 548, 114 S. Ct. 1147, [1154,] 127 L. Ed. 2d 474 [,486] (1994). This inquiry
       is an objective one, made from the perspective of a reasonable observer who is
       informed of all the surrounding facts and circumstances.

Microsoft Corp., 530 U.S. at 1302. Applying this standard to his situation, the Chief Justice
declined to recuse himself, concluding that his participation in the case did not give rise to an
appearance of partiality. Id. at 1303.


3
       Breinholt contends that the trial judge brought documents from the civil case into the
criminal case. Nothing in our appellate record shows any such action.

                                                  4
       Here, Breinholt has failed to present facts that a reasonable observer could consider in
determining that affirmative recusal by the trial judge in this case was appropriate. Breinholt
merely speculates that the trial judge lacked impartiality because he was the judge in the related
civil case.   Participation in prior related proceedings alone is not a reasonable basis for
questioning a judge’s impartiality. See State v. Jones, 146 Idaho 297, 300, 193 P.3d 457, 460
(Ct. App. 2008) (concluding that a court has previously dealt with the case does not
automatically establish bias or prejudice). Thus, Breinholt has not shown that the trial judge
abused his discretion by not affirmatively recusing himself from this case.
                                               III.
                                        CONCLUSION
       Breinholt has not shown that the trial judge should have been disqualified or
affirmatively recused himself from presiding over this case. Therefore, Breinholt’s judgment of
conviction entered upon his guilty pleas to four counts of selling unregistered securities is
affirmed.
       Chief Judge GRATTON and Judge LANSING, CONCUR.




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