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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 36629

STATE OF IDAHO,

Plaintiff-Respondent,

v.

TWO JINN, INC.,

Real Party in Interest-Appellant,

and

AARON KYLE HARRIS,

Defendant.

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2010 Opinion No. 24

Filed: April 7, 2010

Stephen W. Kenyon, Clerk

Appeal from the District Court of the First Judicial District, State of Idaho, 

Kootenai County. Hon. John T. Mitchell, District Judge. Hon. Scott Wayman, 

Magistrate.

Decision of the district court, on intermediate appeal, affirming magistrate’s order 

denying motion to set aside forfeiture and exonerate bond, affirmed.

Robyn Fyffe of Nevin, Benjamin, McKay & Bartlett, LLP, Boise, and Susan M. 

Campbell, Boise, for appellant. Robyn Fyffe argued.

Hon. Lawrence G. Wasden, Attorney General; Karin D. Jones, Deputy Attorney 

General, Boise, for respondent. Karin D. Jones argued. 

______________________________________________

MELANSON, Judge

Two Jinn, Inc., a bail bond company and the real party in interest, appeals from the 

district court’s decision affirming the magistrate’s order denying Two Jinn’s motion to set aside 

forfeiture and exonerate bond. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

Aaron Kyle Harris pled guilty to operating a motor vehicle while under the influence of 

alcohol. I.C. § 18-8004. Harris was sentenced to 180 days in jail and placed on probation for 

two years. While on probation, Harris was ordered by the magistrate to appear and show cause 
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why his probation should not be revoked. When Harris did not appear, the court issued a warrant 

for his arrest. After his arrest, Two Jinn posted a $5000 bond and Harris was released. On 

February 5, 2008, Harris failed to appear at a probation violation disposition hearing. As a 

result, the magistrate issued a bench warrant and forfeited the bond.

Months later, Two Jinn filed a motion to set aside forfeiture and exonerate bond pursuant 

to former I.C. § 19-2927 and former I.C.R. 46. In support of its motion, Two Jinn filed the 

affidavits of two investigators. The affidavits explained that one investigator had located Harris 

in Oregon and contacted him by phone in February. The other investigator traveled to Oregon in 

July, but could not convince Harris to return voluntarily. Two Jinn argued that, because Oregon 

law prohibited investigators from apprehending Harris and returning him to Idaho, it was

impossible for Two Jinn to fulfill its performance under the bail bond agreement.

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 Further, Two 

Jinn also asserted that justice did not require enforcement of the bond forfeiture under I.C.R. 

46(e)(4). After a hearing, the magistrate denied Two Jinn’s motion. Two Jinn appealed to the 

district court, asserting that the magistrate abused its discretion. The district court affirmed the 

magistrate’s denial of Two Jinn’s motion to set aside forfeiture and exonerate bond, holding that 

the magistrate properly recognized the issue as one of discretion, applied the correct legal 

standard, and did so through an exercise of reason. Two Jinn again appeals.

II.

ANALYSIS

The decision whether to exonerate bond is committed to the trial court’s discretion. State 

v. Quick Release Bail Bonds, 144 Idaho 651, 655, 167 P.3d 788, 792 (Ct. App. 2007). In this 

case, the magistrate denied Two Jinn’s motion to exonerate bond, and the district court affirmed 

on intermediate appeal. On review of 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). 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 

 

1 On appeal, Two Jinn also asserted that its performance under the bail bond agreement 

was excused under the doctrine of impossibility. However, at oral argument, Two Jinn withdrew 

that assertion. Therefore, this Court will not address it further. 
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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. 

Two Jinn asserts that the magistrate erred when it denied Two Jinn’s motion to set aside 

forfeiture and exonerate bond. The court’s decision to set aside forfeiture and exonerate bond

was governed by former I.C. § 19-2927 and former I.C.R. 46.

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 Former I.C. § 19-2927, which

also governed the procedures for the forfeiture of bond, provided in relevant part:

If within one hundred eighty (180) days of the date of forfeiture, a person, 

other than the defendant, who has provided bail for the defendant, surrenders the 

defendant to the jail facility of the county which issued the warrant, the 

undertaking of bail or deposits are thereby exonerated.

Former I.C.R. 46(e)(4) provided in relevant part:

The court which has forfeited bail before remittance of the forfeiture may 

direct that the forfeiture be set aside upon such conditions as the court may 

impose, if it appears that justice does not require the enforcement of the 

forfeiture. 

(Emphasis added). This Court has identified several factors that a court should consider when 

deciding whether to order forfeiture of a bond. State v. Fry, 128 Idaho 50, 54, 910 P.2d 164, 168 

(Ct. App. 1994). In Fry, this Court stated:

In deciding how much, if any, of the bond to forfeit, the court should also 

consider: (1) the willfulness of the defendant’s violation of bail conditions; (2) 

the surety’s participation in locating and apprehending the defendant; (3) the 

costs, inconvenience, and prejudice suffered by the state as a result of the 

violation; (4) any intangible costs; (5) the public’s interest in ensuring a 

defendant’s appearance; and (6) any mitigating factors.

Id. The Fry factors also apply to a court’s decision to set aside forfeiture and exonerate bond. 

Quick Release Bail Bonds, 144 Idaho at 655, 167 P.3d at 792. A court may also consider any 

other relevant factors, including the state’s demonstration of interest in regaining custody of the 

defendant through prompt efforts to extradite him or her, any effort by the bonding company to 

 

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Effective July 1, 2009, I.C. § 19-2927 was repealed by S.L. 2009, ch. 90, § 1 and 

replaced by the Idaho Bail Act, I.C. § 19-2901 et. seq. Similarly, effective July 1, 2009, the 

Idaho Supreme Court repealed I.C.R. 46 and replaced it with a revised I.C.R. 46. At the time the 

motion to exonerate the bond was filed, former I.C. § 19-2927 and I.C.R. 46(e)(4) controlled. 

This opinion addresses the application of the former statute and rule.
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assist or persuade the defendant to return to Idaho, and the need to deter defendants from future 

violations. Id. 

Two Jinn argues that the magistrate applied the wrong legal standard when it stated that,

in some cases, it would be “unjust to allow the bond to remain forfeited.” Two Jinn asserts that 

the standard articulated by the magistrate was inconsistent with Rule 46(e)(4), which required the 

setting aside of a forfeiture if it appeared that “justice does not require enforcement of the 

forfeiture.” The standard expressed by the magistrate at the hearing was not inconsistent with 

the language of Rule 46(e)(4). The meaning of the term “unjust” is consistent with the phrase,

“justice does not require.” Also, the phrase “allow the bond to remain forfeited” was another 

way of saying “enforcement of the forfeiture.” Therefore, the magistrate correctly stated and 

applied the proper legal standard. 

Two Jinn contends that it was unjust to allow the bond in this case to remain forfeited

under I.C.R. 46(e)(4) because Oregon law prohibited Two Jinn from apprehending Harris and 

bringing him back to Idaho.

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 The district court affirmed the magistrate’s decision to deny Two 

Jinn’s motion to set aside forfeiture and exonerate bond, holding that the magistrate considered 

the evidence presented at the hearing on the motion and properly applied the evidence to each of 

the Fry factors. One Fry factor considered by the magistrate was Harris’s willfulness in

violating his bail conditions. The evidence presented to the magistrate indicated that Harris was 

living in Oregon of his own free will and was not in custody or somehow incapable of appearing 

in court. The evidence demonstrated that Harris was unwilling to return to Idaho on his own or 

in the custody of Two Jinn’s investigator. 

Another Fry factor is the surety’s participation in locating the defendant. The magistrate 

was presented with affidavits detailing Two Jinn’s efforts to locate Harris and bring him back to 

 

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Two Jinn refers to Oregon Revised Statute Section 133.747, which states:

Subject to the qualifications of ORS 133.743 to 133.857 [which includes 

provisions of the Uniform Criminal Extradition Act] and the provisions of the 

Constitution of the United States controlling, and Acts of Congress in pursuance 

thereof, it is the duty of the Governor of this state to have arrested and delivered 

up to the executive authority of any other state of the United States any person 

charged in that state with treason, felony, or other crime, who has fled from 

justice and is found in this state.

 

Two Jinn also cites State v. Epps, 585 P.2d 425 (Or. App. 1978). 
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Idaho. The record reflects that the notice of bond forfeiture was issued on February 6, 2008. 

Two Jinn’s affidavits averred that one investigator contacted Harris by telephone on February 13, 

and was assured that Harris was living in Portland, Oregon permanently, but would come back to 

Idaho and “take care of this.” The affidavit of another investigator averred that the investigator

traveled to Oregon in July 2008, took Harris’s fingerprints and photograph, and asked him to 

return to Idaho voluntarily. Harris refused to accompany the investigator back to Idaho and 

again indicated that he would take care of this” on his own. No evidence was presented that Two 

Jinn or its investigators notified Oregon authorities that Harris was wanted on a bench warrant 

while living in Oregon. Further, Two Jinn conceded that despite knowing since February 2008 

that Harris was in Portland, and possessing a telephone number to reach him there, the filing of 

the motion to set aside forfeiture on August 1, 2008, was the first time that it notified Idaho 

authorities of Harris’s whereabouts. Two Jinn apparently did nothing concerning Harris from 

February to July and never informed Idaho authorities that it might take steps to apply for 

extradition from Oregon. 

Substantial evidence supports the magistrate’s finding that Two Jinn failed to timely 

contact authorities to have Harris returned to Idaho. Substantial evidence also supports the 

magistrate’s finding that Harris’s failure to appear was voluntary and willful. The magistrate’s

conclusion that justice required enforcement of the forfeiture followed from those findings. 

Therefore, Two Jinn has failed to show that the magistrate abused its discretion when it denied 

the motion to set aside forfeiture and exonerate bond. 

III.

CONCLUSION

Based upon a review of the record, we hold that the magistrate’s factual findings were 

supported by substantial and competent evidence and that the magistrate’s conclusions of law 

followed therefrom. The magistrate properly applied the correct legal standard and concluded 

that it was not unjust to allow the bond to remain forfeited, within its discretion. Accordingly, 

we affirm the district court’s decision affirming the magistrate’s order denying Two Jinn’s 

motion to set aside forfeiture and exonerate bond.

Chief Judge LANSING and Judge Pro Tem SCHWARTZMAN, CONCUR.