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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41289

STATE OF IDAHO,

Plaintiff-Respondent,

v.

BENNETT ROBERT SCALES,

Defendant-Appellant.

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2014 Unpublished Opinion No. 730

Filed: September 18, 2014

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Deborah A. Bail, District Judge. 

Judgment of conviction for felony domestic violence, affirmed. 

Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy 

Attorney General, Boise, for respondent. 

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GRATTON, Judge

Bennett Robert Scales appeals from the judgment of conviction entered upon a jury 

finding him guilty of felony domestic violence, Idaho Code §§ 18-903 and 18-918(2). 

Specifically, he challenges the district court’s denial of his motion for a continuance. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Scales and his girlfriend were engaged in a heated argument during which Scales hit his 

girlfriend in the nose with an open palm, breaking her nose in multiple places. The State charged 

Scales with felony domestic violence. Scales pled not guilty to the charge and the case 

proceeded to trial before a jury. 

At the close of the State’s case-in-chief, defense counsel indicated that Scales intended to 

take the stand and testify in his own defense. However, Scales requested that he delay his 

testimony until the following day. Construing this request as a motion to continue, the district 
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court offered Scales a recess to confer with counsel. Upon returning from that recess, Scales 

asserted that he felt like he was being rushed into testifying and that a continuance would allow 

him to be more relaxed. Recognizing that testifying is stressful, but noting that it was the time 

set for trial and the jury was present, the district court denied Scales’ motion. After the court 

denied his request to postpone his testimony, Scales chose not to testify. 

The jury found Scales guilty of felony domestic violence. The trial court imposed a 

unified ten-year sentence with a two-year determinate term. Scales timely appeals. 

II.

ANALYSIS

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 in a criminal case is reviewed on appeal, the appellate court conducts a 

multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as 

one of discretion; (2) whether the lower court acted within the boundaries of such discretion and 

consistently with any legal standards applicable to the specific choices before it; and (3) whether 

the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 

600, 768 P.2d 1331, 1333 (1989). Generally, it has been held that unless an appellant shows that 

his or her substantial rights have been prejudiced by reason of a denial of his or her motion for 

continuance, appellate courts can only conclude that there was no abuse of discretion. State v. 

Cagle, 126 Idaho 794, 797, 891 P.2d 1054, 1057 (Ct. App. 1995). 

“Trial judges necessarily require a great deal of latitude in scheduling trials.” Id. The 

burden of assembling the witnesses, lawyers, and jurors at the place and time for trial “counsels 

against continuances except for compelling reasons.” Id. In deciding whether the denial of a 

continuance was so arbitrary as to violate due process, the reviewing court looks to the 

circumstances of each case, “particularly in the reasons presented to the trial judge at the time the 

request [was] denied.” State v. Carman, 116 Idaho 190, 198, 774 P.2d 900, 908 (1989) (quoting 

Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). On appeal, Scales argues that the denial of his 

requested recess deprived him of his right to effective assistance of counsel and of his right to 
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due process.1 Scales also argues that his request was reasonable given that the parties and the 

court understood that the trial could extend into a second day. 

The State argues Scales had five months from the time he was charged until his trial 

commenced to confer with counsel and decide whether or not to testify at trial and thus his midtrial request was not justified. Although it is not presented in the record how much time Scales 

actually spent with his counsel, he did not argue unfair surprise at trial when he requested 

additional time. Rather, by his own statement to the court, Scales had initially decided and was 

prepared to testify, but ultimately chose not to. 

Scales has failed to demonstrate that his substantial rights were prejudiced by the denial 

of his motion for a continuance. At trial, when he made his request for a continuance, he sought 

to delay testifying until the following day. In response to this request, the trial judge suggested a 

five-minute recess to allow Scales to consult with is attorney. Following the short recess, Scales 

maintained his position, asserting he was “being pushed a little too quickly” to testify and “[he] 

would be a little bit more relaxed” if he were permitted to testify at a later time. The court 

denied the motion, acknowledging that Scales was feeling emotional, but also noting that “trials 

are stressful” and “it’s not unusual for people to feel . . . a little stressed out at this situation.” 

The court further reasoned, “The jury is here. The jury is present. This is the day set for trial, so 

we need to proceed.” The court also attempted to ease Scales’ emotions by suggesting he drink 

some water and repeatedly encouraged him to take all the time he needed when testifying, 

ultimately finding there would be no benefit in delaying his testimony until the following day. 

However, Scales chose not to testify. 

Every criminal defendant has to make the final decision at trial as to whether or not to 

testify in his or her defense. This case is no different. In our view, the record shows that in 

response to the reasons Scales presented to the trial judge for his request, the judge exhibited 

empathy for the stress Scales was feeling from the trial and patience for him to present his 

testimony to the jury. In the end, Scales did not suggest to the court that he had a need to consult 

with counsel regarding trial testimony. After the break, he simply said he wished to be more 

 

1 Not only were these arguments not presented to the trial judge at the time Scales made his 

request, but they are contrary to his argument presented at trial that he would be more relaxed if 

he were allowed to postpone testifying. Therefore, we need not entertain these arguments. See

State v. Carman, 116 Idaho 190, 198, 774 P.2d 900, 908 (1989).
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relaxed. On this record, we cannot say that the trial court abused its discretion in denying 

Scales’ motion for a continuance. It was within the trial court’s discretion to determine that the 

inherent stress that accompanies trials was not a compelling reason to continue, and therefore to 

proceed with trial on the day scheduled and not postpone into a second day of trial. The trial 

court reached its decision by an exercise of reason. 

III.

CONCLUSION

The trial court did not abuse its discretion in denying Scales’ motion for a continuance. 

Accordingly, Scales’ conviction is affirmed.

Judge LANSING and Judge MELANSON CONCUR.