Burgess v Department of Corrections

Burgess sought judicial review of Department’s decision to terminate him. The panel reversed and remanded. It held there was substantial evidence to support the finding of exercising poor judgment as Burgess admitted at the administrative review hearing that he knew there was some risk in getting out of a cab and getting onto a truck with a driver police feared was too impaired to drive and that it was mistake to get out of the cab and get into the truck. It held there was substantial evidence that Burgess violated Department policy by being dishonest based on his testimony that he told police that he and his traveling companions had no ride home, got into the cab as suggested by the officers then got out and got into eh truck thus misleading the officers about taking the cab home. It held there was substantial evidence that Burgess brought discredit upon himself thus violating Department policy namely testimony by Department’s executive director and another executive that by not following through on the plan to take the cab and minimizing the incident in his appeal paperwork, Burgess had lost their trust. It held termination was disproportionate here as Department considered a public intoxication charge that was found unsupported by substantial evidence, Burgess had an exemplary work record, the incident took place off duty, there was no evidence the incident actually undermined Department morale and effectiveness, and there was no evidence that similar misconduct would happen again. It held termination was inconsistent with how Department previously applied the relevant policies as an officer who exercised poor judgment and lost the trust of executive director by failing to report suspected child sex abuse was demoted, not terminated, and also noted that shortly after the incident here, a corrections officer in the same position as Burgess allowed inmates to release a dog from its chain, the dog bit another inmate and the officer induced an inmate to lie about it yet that officer was only suspended without  pay for a week which demonstrates Burgess’ termination is an abuse of discretion. The case was remanded to reconsider the discipline to be imposed.

State v Homer

The State appealed the magistrate’s decision to dismiss a methamphetamine possession count arguing that scientific proof the materials seized were in fact methamphetamine was not required. The penal agreed and reversed holding that viewed in the light most favorable to the State, the testifying officer’s observations that Homer was acting erratically, hid syringes which were consistent with meth use and found baggies with a light crystal substance and packaged in manner consistent with methamphetamine were sufficient to find probable cause to bindover Homer on the possession charge.

State v Valdez

Valdez appealed the consecutive sentences imposed at a consolidated hearing for three separate felony convictions. The panel affirmed. It held there was no error in the district court considering the reduction in charges as part of plea negotiations as part of its consideration of the gravity and circumstances of the third criminal episode and held Valdez failed to rebut the presumption that the district court considered all required factors as to episodes one and two and relevant mitigating circumstances in making the sentences consecutive as the presentence report had detailed accounts of all three criminal episodes and mitigating circumstances and the district court was familiar with its contents.