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IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket Nos. 34193/34818/37619 STATE OF IDAHO, Plaintiff-Respondent, v. VALENTINO HERRERA, Defendant-Appellant. ) ) ) ) ) ) ) ) ) )

2011 Opinion No. 61 Filed: October 19, 2011 Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia County. Hon. John M. Melanson, District Judge. Judgment of conviction and order of restitution for battery on a peace officer, affirmed. Nevin, Benjamin, McKay & Bartlett LLP, Boise, for appellant. Robyn A. Fyffe argued. Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued. ________________________________________________ LANSING, Judge Valentino Herrera was convicted of battery on a peace officer, with a sentence enhancement for being a persistent violator of the law. Herrera raises numerous claims of error, including a contention that the State's evidence did not show the alleged victim had been a peace officer. I. FACTS AND PROCEDURE The following events were described in the State's evidence at Herrera's trial. In June of 2006, Herrera and Alan Garrett, who was a former Cassia County sheriff's deputy and court bailiff, were both incarcerated in Cassia County for unrelated criminal charges. While Garrett was wiping down tables after breakfast, he moved Herrera's coffee cup. This angered Herrera, who commented to another inmate that Garrett had previously "cost [him] five years" and "he

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put me in prison." Garrett tried to calm Herrera down but was unsuccessful. Herrera then threw hot coffee in Garrett's face, hit him in the face with the coffee mug, punched Garrett in the face and gouged his eye. During the altercation, Herrera called Garrett a "narc cop." The State charged Herrera with battery, Idaho Code

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