For the week of Jan 30 - Feb 5, 2002

High’s burglary conviction is dismissed by Judge May

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By GREG MOORE
Express Staff Writer

A 5^th District Court judge last week dismissed a burglary conviction against Gail J. High, originally accused of the attempted murder of a Ketchum police officer’s wife, but let stand a felony aggravated assault conviction.

High is scheduled to be sentenced for that crime on March 18.

During a trial in mid December, the prosecution had contended that High, 39, had taken a loaded pistol to the Hulen Meadows home of Dave and Colleen Kassner on the night of Dec. 16, 2000, with the intention of shooting Mrs. Kassner, in retaliation for a DUI citation Sgt. Kassner had given her earlier that evening.

The jury found High not guilty of that charge, apparently accepting a defense contention that High had gone to the house to commit suicide there. However, the jury convicted her of aggravated assault in connection with a struggle she had with the Kassners’ renter, John Straka, who grabbed her when he saw the pistol shortly after he met her at the door. A shot was fired during the struggle.

The jury also found High guilty of burglary. In Idaho, a person is guilty of burglary when he or she enters a building with the intent to commit a felony or theft inside.

During a Jan. 11 hearing on High’s motions for acquittal or for a new trial on the two convictions, her attorney, Keith Roark, told the court that there was no logical way to tie the burglary conviction to either the attempted murder charge or the aggravated assault conviction.

In a decision released Jan. 23, Judge James May agreed with Roark’s assessment. In order to sustain a burglary conviction once High was found not guilty of attempted murder, May reasoned, "(t)he court must assume that the jury found that the defendant entered the Kassners’ residence with the intent to commit an aggravated assault on the person of John Straka…"

"The court finds that the evidence is insufficient to allow a reasonable person to conclude that the defendant intended to commit an aggravated assault when she crossed the threshold of the Kassners’ residence."

Idaho law deems a person to be guilty of aggravated assault if he or she attempts to injure someone or threatens to injure someone with the apparent ability to do so.

In support of High’s motion to dismiss her conviction on that crime, Roark told the court that there had been no evidence presented that High had attempted to shoot Straka or that he had felt threatened by her.

May, however, concluded that the jury could have reasonably found High guilty based on either definition of the crime.

"In applying the assault elements to the facts at hand, the defendant pulled out a loaded gun in the Kassners’ residence and when John Straka grabbed her to prevent her from using the gun, she struggled to push the gun towards him…In addition, the evidence shows that once the defendant was on her back she squeezed the trigger," May stated.

High still faces a trial Thursday on her DUI charge.

 

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