1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41284

STATE OF IDAHO , Plaintiff-Respondent ,

v.

JARED CHARLES HERGESHEIMER , Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) 2014 Unpublished Opinion No. 649

Filed: August 7, 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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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. Kathryn A. Sticklen , District Judge. Hon. Daniel L. Steckel, Magistrate.

Order of the district court, on intermediate appeal from the magistrate division, affirming judgment of conviction for drivi ng under the influence, affirmed

. Eric D. Fredericksen of Brady Law, Chtd., Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

________________________________________________ MELANSON, Judge Jared Charles Hergesheimer appeals from the district court’s order on intermediate appeal affirming Hergesheimer’s judgment of conviction for driving under the influence. For the reasons set forth below, we affirm

. I.
FACTS AND PROCEDURE On September 4, 2011, around 2:00 a

. m

. , officers received a call regarding a possible domestic violence situation in the parkin g lot of an apar tment complex. Four officers responded
in two vehicles. 1 Upon arrival, the officers located Hergesheimer and his girlfriend. The
officers questioned each individually. Upon contacting Hergesheimer, an officer handcuffed

1 Two of the officers had recently transferred to this department and were in trai ning at the time of this call.2 Hergesheimer , advised him he was not under arrest, and read him his Miranda 2 rights. When asked if he understood these rights, Hergesheimer responded, “ Can I have a drink of water?” An officer responded he did not have any water and then proceeded to question Hergesheimer about
the cir cumstances of the domestic violence call. Hergesheimer denied any physical contact between him and his girlfriend, but admitted consuming alcohol earlier in the evening. During this time, another offic er spoke with the girlfriend. She s tated that Hergesheimer was nineteen years of age and had recently driven them to the current location. She also confirmed no physical contact occurred. The interviewing officers thereafter conferred with one
another and concluded no domestic violence occurre d. However, officers now suspected Hergesheimer of underage consumption of alcohol and driving under the influence (DUI). At this point, an officer removed Hergesheimer from the handcuffs and began to question him with regard to these possible crimes. E ventually, officers inquired whether Hergesheimer drove to the parking lot and Hergesheimer respond ed with an affirmative head nod . Hergesheimer then
underwent field sobriety tests and failed. Officers arrested Hergesheimer for DUI. Hergesheimer provided two breath samples with results of .136 and .128. The state charged He rgesheimer with DUI. I.C. § 18

- 8 004. Hergesheimer moved to suppress the statements he made to officers, the results of the field sobriety tests, and the results of the breath test. The magistrate denied the motion and He rgesheimer proceeded to trial. 3 A jury found Hergesheimer guilty and he appealed to the district cour t. The district c ourt affirmed. Hergesheimer again appeals.
II.
STANDARD OF REVIEW For an appeal from the district court, sitting in its appellate capacity over a case from the magistrate division, this Court’s standard of review is the same as the Idaho Supreme Court ’s

. The Supreme Court reviews 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. State v. Korn , 148 I daho 413 , 415 , 224 P. 3 d 480 , 482 ( 2009 ). If those findings are so supported and the conclusions follow therefrom
, and if the

2 See Miranda v. Arizona
, 384 U.S. 436 (1966).

3 The state did not call Hergesheimer’s girlfriend as a witness at trial.3 distric t court affirmed the magistrate’ s decisio n, we affirm the district court’ s decision as a matter of procedure. Id. Thus, t he appellate courts do not review the decision of the magistrate.
State v. Trusdall , 155 Idaho 965, 968, 318 P.3d 955, 958 (Ct. App. 2014). Rather, we are procedurally bound to affirm or dismiss the decisions of the district court. Id

. I II.
ANALYSIS
A. Fifth Amendment Rights Hergesheimer argues the magistrate erred in denying his motion to suppress because the incriminating statements he made were in violation of his Fifth Amendment rights. The state

argues Hergesheimer failed to demonstrate he was in custody for Miranda purposes, and even if
Miranda warnings were required, they were adequately given and Hergesheimer waived them. Ordinarily, the determination of whether police are required to provide Miranda warnings presents a mixed question of law an d fact. State v. Silva
, 134 Idaho 848, 854, 11 P.3d 44, 50 (Ct. App. 2000). The trial court ’ s findings of fact underlying the totality of the circumstances are reviewed for clear error, but application of constitutional standards to those facts is given free
review. State v. K uzmichev
, 132 Idaho 536, 542

- 44, 976 P.2d 462, 468

- 70 (1999) ; Silva
, 134 Idaho at 854, 11 P.3d at 50; State v. Birkla
, 126 Idaho 4 98, 501, 887 P.2d 43, 46 (Ct. App. 1994)

. The requirement for Miranda warnings is triggered by custodial interrogation. State v.
Medrano , 123 Idaho 114, 117, 844 P.2d 1364, 1367 (Ct. App. 1992). The United States Supreme Court originally equated custody with a person being deprived of his or her freedom by the authorities in any significant way. Miranda v. Arizona , 384 U.S. 436, 478 (1966). This test has evolved to define custody as a situation where a person’s freedom of action is curtailed to a degree associated with formal arrest. Berkemer v. McCarty , 468 U.S. 420, 440 (1984); State v. Myers , 118 Idaho 608, 610, 798 P.2d 453, 455 (Ct. App. 1990). The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. Stansbury v. California , 511 U.S. 318, 323 (1994). To determine if a suspect is in custody, the only relevant inquiry is how a reasonable person in the su spect’s position would have understood his or her
situation. Berkemer , 468 U.S. at 442; Myers , 118 Idaho at 611, 798 P.2d at 456. A court must consider all of the circumstances surrounding the interrogation. Stansbury
, 511 U.S. at 322; State v. James , 14 8 Idaho 574, 577, 225 P.3d 1169, 1172 (2010). Factors to be4 considered may include the degree of restraint on the person ’ s freedom of movement ( including whether the person is placed in handcuffs ) , whether the subject is informed that the detention is more than temporary, the location and visibility of the interrogation, whether other individuals were present, the number of questions asked, the duration of the interrogation or detention, the
time o f the interrogation, the number of officers present, the number of officers involved in the interrogation, the conduct of the officers, and the nature and manner of the questioning. See
Berkemer
, 468 U.S. at 441

- 42 ; James , 148 Idaho at 577

- 78, 225 P.3d at 1172

- 73. The burden of showing custody rests on the defendant seeking to exclude evidence based on a failure to
administer Miranda warnings. James , 148 Idaho at 577, 225 P.3d at 1172. Here, the magistrate concluded He rgesheimer was not in custody for p urposes of
Miranda . We agree. The record demonstrates four officers responded to the scene at around
2:00 a

. m. Hergesheimer and his girlfriend were located outside, in the parking lot of an apartment complex. When officers first contacted Hergesheimer, he was nearly 100 feet away
with his back to officers

. An officer called out to Hergesheimer and instructed him to take his hands out of his pockets. Upon approaching Hergesheimer, an officer frisked him and placed
him into handcuffs. The officer then informed Hergesheimer he was not under arrest and explained he was being detained in handcuffs for officer safety. The officer then proceeded to question Hergesheimer regarding the domestic violence investigation. After the officer
determined n o domestic violence occurred, another officer removed Hergesheimer’s handcuffs and began to question him with respect to underage consumption and DUI.
The totality of the circumstances demonstrates Hergesheimer ’s freedom was not curtailed to the degree associated with formal arrest at the time he made the incriminating statements

. While f our officers were present at the scene, only two officer s questioned Hergesheimer . The tone of the questioning was not overbearing or confrontational. Further, at the time Herge sheimer made the incriminating statements, Hergesheimer was no longer in handcuffs.
Moreover , the questioning took place out in the open in the parking lot of an apartment complex

. An officer explained to Hergesheimer he was not under arrest. On balance , these factors indicate Hergesheimer was not in custo dy. Therefore
, Miranda warnings were not required and , thus, the magistrate correctly denied Hergesheimer’s motion to suppress.5 B. Corpus Delicti Rule Hergesheimer also argues the magistrate erred i n denying his I daho Criminal Rule 29 motion for judgment of acquittal based on the corpus deli cti rule . Hergesheimer contends retroactive application of the Idaho Supreme Court’s decision in State v. Suriner , 154 Idaho 81, 294 P.3d 1093 (2013), eliminating the corpus delicti rule in Idaho , would violate constitutional principles of due process . Hergesheimer also contends that the state presented insufficient
evidence to establish the corpus delicti of the charged offense. The state contends Her gesheimer is not entitled to application of the corpus delicti rule on appeal, and even if he were, the state presented sufficient evidence to establish the corpus delicti of the charged offense. Assuming
, without deciding
, that Hergesheimer is entitled to application of the corpus delicti rule on appeal, we conclude the state provided sufficient evidence to comport with that
rule

. 4 The corpus delicti rule provides that the fact a crime has been committed cannot be proved solely by the extrajudicial confes sions or statements of the defendant and there must be some evidence or corroborating circumstances tending to show a crime has been committed,
aside from such confessions or statements. Suriner , 154 Idaho at 83, 294 P.3d at 1095

. The purpose of corpus delicti is to prevent errors in convictions based on false confessions, to act as a safeguard against the defendant ’ s act of confessing but being mistaken that a crime occurred, and to force the prosecution to use its best evidence. State v. Urie , 92 Idaho 71, 76, 437 P.2d 24, 29 (1968) (McFadden, J., special concurrence) ; State v. Roth
, 138 Idaho 820, 822, 69 P.3d 1081, 1083 (Ct. App. 2003)

. To prove a crime generally, the state must provide evidence in the context of three broad
elements: (1) an injury occurred; (2) criminal agency was involved in causin g the injury; and (3) the identity of the person who caused the injury. Roth
, 138 Idaho at 823, 69 P.3d at 1084. Under
the standard formulations of the corpus delicti rule , the state must show the “ body” of a crime by establishing the first two elements of a crime ( the inj ury and the criminal agency ) independently
from a defendant ’ s confession. Roth
, 138 Idaho at 823, 69 P.3d at 1084

. However, when the corpus delicti rule was in effect in Idaho, the s tate did not have to establish each element of the corpus delicti independently from the defendant ’ s confession

. U rie , 92 Idaho at 73, 437 P.2d at

4 With regard to the analysis in the remainder of this section, we acknowledge that all of the following c ited cases have been overruled, abrogated, or distinguished by State v. Suriner , 154 Idaho 81, 294 P.3d 1093 (2013).6 26; Roth
, 138 Idaho at 823, 69 P.3d at 1084. A s the corpus delicti of the crime consisted of injury and criminal agency, the s tate needed only to independently corroborate one of those
elements to meet its burden. Roth
, 138 Idaho at 823, 69 P.3d at 1084. Mor eover, only slight
corroboration of the corpus delicti by independent evidence was required. Urie , 92 Idaho at 73, 437 P.2d at 26; State v. Wilson
, 51 Idaho 659, 669, 9 P.2d 497, 500 (1932) ; State v. Downing , 23 Idaho 540, 544, 130 P. 461, 462 (1913) ; State v. K eller
, 8 Idaho 699, 705, 70 P. 1051, 1052 (1902)

. In this case, t he evidence at trial indicated officers encountered Hergesheimer in a parking lot of an apartment complex where Hergesheimer did not live. Hergesheimer’s vehicle was located in this parking lot

. Further, the audio recording of the conversation with offic er s reveals Hergesheimer acknowledged driving his g irlfriend around earlier in the evening and acknowledged drinking that night. Subsequent breath tests confirmed Hergesheimer was under
the influence of alcohol

. T his corroborating evidence is enough to m eet what was Idaho’s
version of the corpus delicti rule . Therefore, the magistrate did not err in denying Hergesheimer’s motion for judgment of acquittal.
IV

. CONCLUSION Hergesheimer was not in custody for Miranda purposes and
, therefore, the magistrate correctly denied his motion to suppress . Further, even assuming Hergesheimer is entitled to application of the corpus delicti rule on appeal, the state presented sufficient corroboration of the corpus delicti . Accordingly, the district court’s order on intermediate appeal affirming Hergesheimer’s judgment of conviction for DUI is affirmed

. Chief Judge GUTIERREZ and Judge GRATTON, CONCUR.