IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 47400
STATE OF IDAHO, )
) Filed: April 13, 2021
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
STEVEN MOSES JAY, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. Benjamin J. Cluff, District Judge.
Judgment of conviction and sentences for felony domestic battery and for
misdemeanor resisting and/or obstructing an officer, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
________________________________________________
BRAILSFORD, Judge
Steven Moses Jay appeals from his judgment of conviction and sentences for felony
domestic battery, Idaho Code §§ 18-903, 18-918(2)(a), and for misdemeanor resisting and/or
obstructing an officer, I.C. § 18-705. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Late one evening in December 2018, law enforcement responded to a domestic violence
incident in Twin Falls. After the purported incident, the victim went to a friend’s house and the
friend called the police. When Officers Cyr and Weigt arrived at the friend’s house, they both
observed the victim had a swollen nose and cheek. The victim told Officer Cyr that her
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boyfriend, Jay, had pushed her down, struck her in the face twice, and then pushed her down
again. The victim was transported to the hospital.
Meanwhile, Officers Rhoades and Weigt went to Jay’s residence. Jay appeared
intoxicated, and when the officers arrested him, he resisted by pulling his hand away and trying
to retreat into his residence.
The State charged Jay with felony domestic battery and misdemeanor resisting arrest.
Jay pled not guilty and proceeded to trial. At trial, the State admitted evidence about the victim’s
injuries, including the testimony of the emergency room personnel who treated the victim. The
nurse who examined the victim testified that the victim’s injuries were consistent with being “hit
multiple times in the face.” Further, the nurse testified that the victim’s nose was swollen and
had an abrasion; her right brow, left cheek, and left wrist were bruised; and she had multiple
scratches on her neck and wrist. Further, the emergency room doctor testified that a CAT scan
showed the victim’s nasal bones “had been broken into several different pieces.” The State
admitted in evidence numerous photographs of the victim’s injuries.
The State also introduced testimony about the victim’s numerous statements that Jay
caused her injuries. Officer Cyr testified that the victim initially reported Jay had pushed her
down, “struck her in the face twice,” and then pushed her down again; she gave Officer Cyr “the
exact same story” when he spoke to her later at the hospital; and she told him “the exact same
thing” again when he met with her approximately twelve hours later. Similarly, the nurse
testified that the victim reported her injuries occurred during an altercation with her boyfriend
when he hit her multiple times in the face with his fist. Likewise, the doctor testified the victim
reported that “she had been involved in an altercation with her boyfriend” and “she’d been
punched in the face with a closed fist three or four times.” Finally, the victim provided the same
account in a written statement prepared at the hospital.
During the prosecutor’s direct examination of the victim, however, she testified she did
not remember either reporting that Jay caused her injuries or most of the other events that
occurred on the night she was injured. For example, the victim testified that she did not
remember getting into an argument with Jay, telling the police Jay pushed her down and caused
her bruising, meeting with Officer Cyr at a friend’s house or again later at the hospital, providing
a written statement at the hospital, how much the victim drank that night, or the injuries she
suffered. Explaining her lack of memory, the victim testified she was “highly intoxicated” and
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“under the influence of drugs and pain killers” when she made the statements incriminating Jay.
In contrast, Officer Cyr, Officer Weigt, the nurse, and the doctor all testified that the victim did
not appear to be intoxicated on the night of the incident.
On cross-examination, the victim continued to recant her prior statements that Jay caused
her injuries, explaining those statements were untrue because she was “intoxicated” and not
“thinking clear-headed.” Explaining her injuries, the victim testified that she sustained them
when she was getting into her car on the night of the incident and slipped: “I park on a slope in
our driveway, and I slipped on some ice that was under the snow.” Further, she testified that she
had “held [the] position” that “Jay did not strike [her] in the face” “[e]ver since [she] quit taking
the painkillers, because they were making [her] confused.”
Ultimately, the jury found Jay guilty of both domestic battery and resisting arrest.
Thereafter, the district court sentenced Jay to one year determinate for resisting arrest and to a
unified sentence of eight years with three years determinate for felony domestic battery. Jay
timely appeals his conviction and his sentence for domestic battery.
II.
ANALYSIS
A. Denial of Motion for Mistrial
Jay asserts the district court erred by denying his motion for a mistrial after the
prosecutor attempted to introduce evidence of conduct subject to Idaho Rule of Evidence 404(b).
In criminal cases, motions for mistrial are governed by Idaho Criminal Rule 29.1. A mistrial
may be declared on the defendant’s motion when there occurs during the trial an error or legal
defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the
defendant and deprives the defendant of a fair trial. I.C.R. 29.1(a). Our standard for reviewing a
district court’s denial of a motion for mistrial is well-established:
[T]he question on appeal is not whether the trial judge reasonably exercised his
discretion in light of circumstances existing when the mistrial motion was made.
Rather, the question must be whether the event which precipitated the motion for
mistrial represented reversible error when viewed in the context of the full record.
Thus, where a motion for mistrial has been denied in a criminal case, the “abuse
of discretion” standard is a misnomer. The standard, more accurately stated, is
one of reversible error. Our focus is upon the continuing impact on the trial of the
incident that triggered the mistrial motion. The trial judge’s refusal to declare a
mistrial will be disturbed only if that incident, viewed retrospectively, constituted
reversible error.
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State v. Urquhart, 105 Idaho 92, 95, 665 P.2d 1102, 1105 (Ct. App. 1983).
In this case, the prosecutor’s inquiry into whether the victim told the police that Jay had
previously threatened her prompted Jay’s motion for a mistrial. On cross-examination, Jay’s
counsel asked the victim whether she feared Jay: “[D]o you fear [Jay], as he--who’s seated
beside me? Do you have a fear of him?” The victim responded: “He’s no threat to me. Never
has been.” On re-direct examination, the prosecutor further inquired about whether Jay had been
a threat to the victim:
Q. You testified [Jay] has never--your words--never been a threat to you?
A. He’s never been a threat to me.
Q. That’s not true, is it? You’re scared of him.
A. No, I’m not.
Q. You told the officers you were scared of him.
A. At the time, I thought I was.
Q. . . . So you remember, at the time, being scared of him?
A. I thought I was, yes.
Q. . . . So on the night in question, you were actually scared of him?
A. Yes.
....
Q. You claim he has never been a threat to you twice now, and yet that night
you told the officers that this wasn’t the first time was it?
A. It’s never happened. It’s never happened.
Q. You told the officers that this was, what? The third or fourth time?
Before the victim responded to this latter question, Jay’s counsel objected and moved for
a mistrial outside the jury’s presence, arguing the State was attempting to introduce
“extraordinarily prejudicial” Rule 404(b) evidence. In response, the prosecutor argued Jay’s
counsel “opened that door” when he inquired about whether the victim feared Jay.
Before ruling on the mistrial motion, the district court took a break, “listened to the
record,” and “reviewed the realtime [sic] transcription.” Thereafter, the court denied the motion,
ruling that “the door was clearly opened by [Jay’s counsel’s] question and the witness’s
response”; her response “was entirely predictable based on the question asked”; and the
prosecutor’s question was not “an impermissible 404(b) question” and was not prejudicial.
Nevertheless, the court sustained Jay’s objection, did not allow the victim to answer the
prosecutor’s question, and instructed the jury to disregard the question and not to speculate about
the victim’s potential answer.
On appeal, Jay argues “the district court’s refusal to declare a mistrial after the prosecutor
brought up the prohibited [Rule] 404(b) bad acts of [Jay] constituted reversible error.” In
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support of this argument, however, Jay does not rely on Rule 404(b), but rather he relies on
Rule 613, which provides for extrinsic evidence of a witness’s prior inconsistent statements.
Specifically, Jay argues the court erred by denying Jay’s motion for a mistrial because the
prosecutor “told the jury [about] Jay’s alleged bad acts under the guise of impeaching [the
victim] under [Rule] 613” and the impeachment “was not proper” because the victim “had
already admitted her trial testimony was inconsistent with what she told the officers on the night
of the incident.”
In support of this latter argument, Jay relies on State v. Koch, 157 Idaho 89, 103-04, 334
P.3d 280, 294-95 (2014), which addressed whether the district court erred by allowing a prior
inconsistent statement for impeachment purposes. In Koch, the Idaho Supreme Court declined to
adopt a rigid definition of inconsistency for purposes of Rule 613. Id. at 104, 334 P.3d at 295.
Rather, the Court quoted the rule in a majority of jurisdictions which “allows the prior statement
whenever a reasonable man could infer on comparing the whole effect of the two statements that
they had been produced by inconsistent beliefs.” Id.
Jay’s argument fails for numerous reasons. First, Jay did not raise Rule 613 as a basis for
his objection before the district court, and his objection under Rule 404(b) did not preserve the
separate, distinct basis for excluding the evidence under Rule 613. See, e.g., State v. Hall, 163
Idaho 744, 772-73, 419 P.3d 1042, 1070-71 (2018) (holding objection to admission of evidence
on one basis does not preserve a separate and different basis for excluding evidence).
Second, even if Jay had objected under Rule 613, the question to which Jay objected was
proper impeachment. Jay’s counsel’s question about whether the victim feared Jay and the
victim’s response that “he’s no threat to me” “never has been” prompted the prosecutor’s
question about whether the victim had previously told the officers Jay was a threat. This
question sought to impeach both the victim’s earlier testimony that Jay was not a threat to her
and also her testimony immediately preceding the question that “it’s never happened. It’s never
happened.” Third, the district court correctly concluded that the prosecutor’s question was not
“an impermissible 404(b) question.” The question did not inquire whether Jay had previously
threatened the victim but rather whether she had previously told the officers Jay had threatened
her.
Finally, even if the district court’s refusal to declare a mistrial constituted an error, any
such error viewed retrospectively is not reversible error. See Urquhart, 105 Idaho at 95, 665
5
P.2d at 1105 (“The trial judge’s refusal to declare a mistrial will be disturbed only if that
incident, viewed retrospectively, constituted reversible error.”). In particular, the court sustained
Jay’s objection, did not allow the victim to answer the prosecutor’s question, and instructed the
jury to disregard the question and not to speculate about the victim’s potential answer. The jury
is presumed to have followed these instructions. See State v. Kilby, 130 Idaho 747, 751, 947
P.2d 420, 424 (Ct. App. 1997) (noting jury is presumed to follow court’s instructions). Further,
any purported error is minimal compared to the probative force of the record establishing guilt
beyond a reasonable doubt without the error. See State v. Garcia, 166 Idaho 661, 674, 462 P.3d
1125, 1138 (2020) (“Harmless error is error unimportant in relation to everything else the jury
considered on the issue in question, as revealed in the record.”). Accordingly, we hold the
district court did not err by denying Jay’s motion for a mistrial.
B. Prosecutorial Misconduct During Closing Argument
On appeal, Jay identifies three instances of alleged prosecutorial misconduct, all of which
occurred during the prosecutor’s closing argument. Closing argument serves to sharpen and
clarify the issues for resolution by the jury in a criminal case. State v. Phillips, 144 Idaho 82, 86,
156 P.3d 583, 587 (Ct. App. 2007). Its purpose is to enlighten the jury and to help the jurors
remember and interpret the evidence. Id. Both parties have traditionally been afforded
considerable latitude in closing argument to discuss fully, from their respective standpoints, the
evidence and the inferences to be drawn therefrom. Id.
Although our system of criminal justice is adversarial in nature and the prosecutor is
expected to be diligent and to leave no stone unturned, the prosecutor is nevertheless expected
and required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). In
reviewing allegations of prosecutorial misconduct, however, we must keep in mind the realities
of trial. Id. A fair trial is not necessarily a perfect trial. Id.
1. Urging conviction for protection of the community
On appeal, Jay argues the prosecutor committed misconduct by arguing the jury needed
to convict Jay to “ensure community safety.” Specifically, the prosecutor argued:
Ladies and gentlemen of the jury, protect that woman. Protect [the
victim]. Protect the community against a domestic violence abuser like [Jay], and
find him guilty for his actions. Hold him accountable, and don’t let him get away
with this.
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Jay asserts that “it was misconduct for the prosecutor to place the duty to protect [the] victim and
the community in the hands of the jury.”
Urging the jury to convict based on factors other than the evidence admitted at trial and
the law as instructed is improper, including comments about protecting the public. State v.
Beebe, 145 Idaho 570, 576, 181 P.3d 496, 502 (Ct. App. 2007) (“Urgings, explicit or implied, for
the jury to render a verdict based on factors other than the evidence admitted at trial and the law
contained in the jury instructions have no place in closing arguments.”). We decline, however,
to consider Jay’s challenge to the prosecutor’s argument that the jury should convict Jay to
“protect the community” for two reasons. First, Jay did not object to this statement at trial. As a
result, any alleged prosecutorial misconduct only requires reversal if the error is fundamental
error. Jay, however, does not argue on appeal that the error rises to the level of a fundamental
error. A party waives an issue on appeal if either authority or argument is lacking. State v.
Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996). Second, Jay did not list this alleged error
as an issue on appeal. Generally, the failure of an appellant to include an issue in the statement
of issues required by Idaho Appellate Rule 35(a)(4) will eliminate consideration of the issue
from appeal. State v. Crowe, 131 Idaho 109, 111, 952 P.2d 1245, 1247 (1998).
2. Disparaging and distorting the defense’s case theory
Jay also challenges the prosecutor’s comments during rebuttal closing argument
theorizing why Jay’s counsel did not present any closing argument about the resisting arrest
charge:
I told you [during closing argument that] the defense wasn’t going to stand
up and argue the resisting arrest [charge]. Not one argument about it. Why? If
you look at your preliminary instructions--look at this. I want to bring this up to
you because it’s a strategic ploy by the defense, and I want you to reject it.
Instructions Number 1 and 2 state the charges and which charges I
brought, and it says [Jay] has pleaded not guilty to both. Interesting.
The defense wants you to sit in that room and stew over the felony
domestic violence and say, “You know what? This is ugly. I don’t know, dealing
with domestic violence is scary and gross. Let’s split the baby and give the State
the resisting.” That’s why.
Jay objected to these comments at trial as improperly “speculating as to legal strategy.” The
district court overruled this objection, and thereafter the prosecutor continued stating: “They
want you to split the baby King Solomon style. Don’t. Don’t. Jay could have pleaded guilty to
it, but he didn’t.”
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When a defendant has made a contemporaneous objection to alleged prosecutorial
misconduct, we first determine factually if prosecutorial misconduct occurred and, if so, whether
the error was harmless. Field, 144 Idaho at 571, 165 P.3d at 285; Phillips, 144 Idaho at 88, 156
P.3d at 589. Where a defendant shows a reversible error based on a contemporaneously
objected-to constitutional violation, the State then has the burden of demonstrating to the
appellate court beyond a reasonable doubt that the constitutional violation did not contribute to
the jury’s verdict. State v. Johnson, 163 Idaho 412, 421, 414 P.3d 234, 243 (2018). A
conviction will not be set aside for small errors or defects that have little, if any, likelihood of
having changed the results of the trial. State v. Baker, 161 Idaho 289, 299, 385 P.3d 467, 477
(Ct. App. 2016).
On appeal, Jay asserts the prosecution argued that “defense counsel was modeling [his]
defense of [Jay] on a Biblical story”; “no evidence supported the prosecutor’s obloquy”; and “the
prosecutor’s comments misrepresent[ed] and disparage[ed] the defense’s theory of the case.” In
support, Jay relies on State v. Page, 135 Idaho 214, 223, 16 P.3d 890, 899 (2000), quoting the
Idaho Supreme Court’s ruling in that case that “it is misconduct for a prosecutor to disparage a
defense attorney in closing argument.” Jay’s reliance on Page fails for two reasons. First, Jay
did not object on the basis that the prosecutor was disparaging defense counsel. See Hall, 163
Idaho at 772-73, 419 P.3d at 1070-71 (holding objection to admission of evidence on one basis
does not preserve a separate and different basis for excluding evidence). Second, we do not read
the prosecutor’s comments as disparaging Jay’s counsel personally.
Jay’s reliance on State v. Troutman, 148 Idaho 904, 231 P.3d 549 (Ct. App. 2010), is also
misplaced. In that case, Troutman asserted the prosecutor distorted his defense theory that “the
victim was a conscious and fully active participant in the sexual encounter,” for which Troutman
was on trial. Id. at 908, 231 P.3d at 553. This Court explained the prosecutor’s description of
this defense as asserting that “because the victim could not remember what happened there could
be no crime” and that “unconscious people should bear the ‘blame’ if they became victimized by
criminals.” It noted that prosecutorial misconduct occurs when “the prosecutor’s statements
grotesquely mischaracterize[] the defense,” and it ruled “the prosecutor gravely distorted and
mischaracterized Troutman’s defense.” Id. at 909, 231 P.3d at 554.
In this case, Jay offers no explanation how the prosecutor allegedly disparaged his
defense. Jay’s only defense at trial was the victim was not credible when she initially reported
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that Jay caused her injuries. The prosecutor’s comments about Jay’s legal strategy, however, did
not address this defense but rather attempted to explain Jay’s failure to make any closing
argument regarding the resisting arrest charge. Unlike the prosecutor’s conduct in Troutman,
this explanation about Jay’s legal strategy was not a gross mischaracterization of his defense and
was, as the district court ruled, not improper argument. Accordingly, the prosecutor’s
explanation for Jay’s failure to address the resisting arrest charge during his closing argument
does not constitute prosecutorial misconduct.
3. Prosecutor’s comments about other domestic violence cases
Finally, Jay challenges the prosecutor’s comments about whether a domestic violence
victim’s recantation of earlier accusations is unusual. During closing argument, Jay’s counsel
argued that it was “highly unusual” for both the defendant and the victim to deny at trial that
domestic violence occurred. The prosecutor took issue with this statement during his rebuttal
argument:
[Jay’s counsel] says it’s unusual that they both testified it did not happen.
That’s not unusual. Come down to the courthouse any time you want and watch
domestic violence cases and see how often a domestic violence victim takes the
stand and looks at the man who she has to live with and will probably live with
after and stares them in the eye and says, “Yeah, that’s the man who beat me.”
You come down and count how many of these victims you see.
No, it’s not unusual for a victim to take that stand and deny everything
that happened and say that she just loves her spouse so much that she accidentally
tripped and hit her face on a countertop. Every Friday, down the hall.
Jay did not object at trial to these comments. Nonetheless, he challenges the comments on
appeal as prosecutorial misconduct.
Where prosecutorial misconduct was not objected to during trial, this Court may only
reverse when the misconduct constitutes fundamental error. State v. Miller, 165 Idaho 115, 122,
443 P.3d 129, 136 (2019). In order to obtain relief under the fundamental error doctrine, the
defendant must demonstrate three things. Id. at 119, 443 P.3d at 133. First, the defendant must
show one or more of the defendant’s unwaived constitutional rights were violated. Second, the
error must be clear and obvious, which means the record must demonstrate evidence of the error
and evidence as to whether or not trial counsel made a tactical decision by not objecting. Id.
Third, the defendant must demonstrate the error affected the defendant’s substantial rights,
meaning the error identified in the first and second prongs of the test actually affected the
outcome of the trial proceedings. Id. at 119-20, 443 P.3d at 133-34.
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On appeal, Jay argues the prosecutor’s comments about evidence not in the record, i.e.,
the prosecutor’s “own opinion on domestic violence cases,” constituted fundamental error. In
support, Jay asserts: (1) these comments violated his Fourth Amendment right to a fair trial;
(2) the error was clear because there is “no reason to believe [Jay’s] counsel was ‘sandbagging’
the district court” and because “no legitimate strategic or tactical reason” supported a decision
not to object to the comments undermining the defense’s theory of the case and the testimony the
defense elicited from victim; (3) the misconduct affected the trial’s outcome because the
evidence against Jay was “tenuous” and the case turned on a “credibility determination.”
Assuming the prosecutor improperly commented about what occurs in other domestic
violence cases, those comments did not rise to the level of fundamental error. In particular, Jay
has failed to establish the second and third elements of the fundamental error analysis. This
Court recently addressed the proof necessary to satisfy the second element of this analysis in
State v. Saenz, 167 Idaho 443, 470 P.3d 1252 (Ct. App. 2020). In that case, Saenz did not object
to the prosecutor’s comments during closing argument that the prosecutor “listened to ‘hours of
interviews’ and ‘read all the police reports and watched all the videos’” and that “these
documents contained no corroboration of Saenz’s theory.” Id. at 450, 470 P.3d at 1259. The
prosecutor made this argument despite that no police reports had been admitted into evidence nor
had certain portions of the interviews and videos. Id. On appeal, Saenz argued these comments
about evidence not in the record constituted fundamental error.
This Court rejected Saenz’s argument, noting it strongly presumes defense counsel was
competent and his “trial tactics were based on sound legal strategy.” Id. at 449, 470 P.3d at
1258. The Court ruled that, to overcome this “strong presumption” of competence, a defendant
must identify evidence in the record affirmatively establishing that the lack of an objection was
not strategic or tactical. Id. at 450, 470 P.3d at 1259. Further, the Court ruled that “the
defendant’s opinion that the absence of an objection was not tactical is not enough to overcome
the presumption of competence.” Id. at 449, 470 P.3d at 1258.
In this case, Jay offers only his opinion that his counsel was “not sandbagging” by not
objecting and that “no legitimate strategic or tactical reason” supported a decision not to object
because the comments undermined the defense’s theory and the victim’s testimony. These
opinions, however, are inadequate to overcome the strong presumption that defense counsel
strategically decided not to object. See id. at 449, 470 P.3d at 1258 (ruling defendant’s opinion
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inadequate to establish lack of objection was not strategic or tactical). Moreover, Jay’s counsel
did object at least once during the prosecutor’s rebuttal closing argument. See id. at 450, 470
P.3d at 1259 (noting trial counsel’s objection to some statement during closing and ruling “we
cannot say the record clearly establishe[d] that trial counsel’s silence in other instances was not
strategic”). Accordingly, Jay failed to establish the second element of the fundamental error
analysis.
Jay also fails to establish the third element that the misconduct actually affected the trial’s
outcome. “Courts have consistently held prosecutorial misconduct during closing arguments will
rise to the level of fundamental error only if the misconduct was so egregious or inflammatory
that any ensuing prejudice could not have been remedied by a curative jury instruction informing
the jury to disregard the comments.” Id. at 451, 470 P.3d at 1260. Although prosecutorial
misconduct may have an increased impact during rebuttal closing argument, just because
prosecutorial misconduct occurs during rebuttal does not mean it actually affected the trial’s
outcome. Id. Proper jury instructions may cure prosecutorial misconduct even if it had the
potential to impact the case’s core issue. Id.
In this case, the district court twice instructed the jury that the lawyers’ arguments and
statements, including their opening and closing arguments, were not evidence and also that the
jury must decide the facts based on the evidence presented in the case. These instructions cured
any potential effect the prosecutor’s comments may have had on the jury. Furthermore, we
disagree with Jay’s argument that the prosecutor’s comments actually impacted the trial’s
outcome because “the State’s evidence against [Jay] was tenuous.” To the contrary, the State
presented the testimony of at least three witnesses who testified the victim told each of them Jay
had caused her injuries and also admitted in evidence photographs of those injuries. We also
disagree with Jay’s assertion that the case turned solely on a “credibility determination.” While
the witnesses’ credibility was at issue, the jury also likely considered whether the nature of the
victim’s injuries--as shown in the photographs and described by numerous witnesses--were the
type that could have been sustained by slipping on ice. Accordingly, Jay failed to establish the
third element of the fundamental error analysis, and we hold that the prosecutor’s comment
about other domestic abuse cases was not fundamental error requiring a reversal.
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C. Excessive Sentence
Finally, Jay argues the district court imposed an excessive sentence by sentencing him to
a unified sentence of eight years with three years determinate for felony domestic battery. An
appellate review of a sentence is based on an abuse of discretion standard. State v. Burdett, 134
Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal, the appellant
has the burden to show that it is unreasonable and thus a clear abuse of discretion. State v.
Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such an abuse
of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho
89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it appears at the
time of sentencing that confinement is necessary to accomplish the primary objective of
protecting society and to achieve any or all of the related goals of deterrence, rehabilitation, or
retribution applicable to a given case. State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710
(Ct. App. 1982). Where an appellant contends that the sentencing court imposed an excessively
harsh sentence, we conduct an independent review of the record, having regard for the nature of
the offense, the character of the offender, and the protection of the public interest. State v.
Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When reviewing the length
of a sentence, we consider the defendant’s entire sentence. State v. Oliver, 144 Idaho 722, 726,
170 P.3d 387, 391 (2007).
Jay argues the district court abused its discretion by not properly balancing the mitigating
and aggravating factors in this case. In support, Jay identifies several mitigating factors he
contends warrant a lesser sentence, including a recent loss in his family; his increased alcohol
consumption and suicidal thoughts; his major depression, anxiety, and bipolar disorders; and his
work history. Further, Jay notes this offense is his first felony conviction.
Having reviewed the record in this case, we conclude the district court did not abuse its
discretion in sentencing Jay. The court properly considered the correct legal standards including
the protection of society, deterrence, rehabilitation, and retribution. It found the sentence was
necessary after considering the presentence investigation report, the domestic violence
assessment, Jay’s refusal to take any responsibility for his actions or to show any remorse, and
his continued adherence “to a false narrative as to what happened.”
While the mitigating factors Jay identified may have some relevancy to sentencing, the
court was not required to assess or to balance all of the sentencing goals in an equal manner. See
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State v. Felder, 150 Idaho 269, 276, 245 P.3d 1021, 1028 (Ct. App. 2010) (noting equal
balancing of goals not required). That the court did not elevate the mitigating factors over the
need to protect society does not establish an abuse of discretion. See id. (noting elevation of
societal protection over mitigating factors not an abuse of discretion). Accordingly, we hold the
court did not abuse its discretion in sentencing Jay.
III.
CONCLUSION
The district court did not err in denying Jay’s motion for a mistrial. Further, the
prosecutor’s comments during closing argument do not require reversal. Finally, the court did
not abuse its sentencing discretion in sentencing Jay. Accordingly, we affirm Jay’s judgment of
conviction and sentences.
Chief Judge HUSKEY and Judge GRATTON CONCUR.
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