2013 Unpublished Opinion No. 638
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge. Hon. Cheri C. Copsey, District Judge.
Judgment of conviction for domestic battery in the presence of a child, affirmed.
Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy Appellate Public Defender, Boise, for appellant. Ben Patrick McGreevy argued.
Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy Attorney General, Boise, for respondent. Nicole L. Schafer argued.
WALTERS, Judge Pro Tem
Ryan Lee Johnson appeals from his conviction and sentence for domestic battery with traumatic injury in the presence of a child. Specifically, Johnson challenges the district court's order denying his request for a unanimity instruction and alleges that the district court abused its discretion by imposing an excessive sentence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 5, 2011, Johnson and his ex-wife, Melissa, were involved in a domestic dispute. The alleged dispute occurred at Melissa's residence and involved physical altercations that occurred in multiple rooms of the house. Johnson and Melissa's son, C.J., was present during the dispute. Johnson was charged with domestic battery with traumatic injury in the presence of a child, Idaho Code §§ 18-903(a), 18-918(2), 18-918(4), and attempted strangulation, I.C. § 18-923. With respect to the domestic battery charge, the information alleged that Johnson used violence upon Melissa by "restraining her, throwing her down, slapping her in the face, hitting her on the head, and/or by throwing her into a bathtub."
Prior to trial, Johnson requested that the district court provide the jury with a unanimity instruction for the domestic battery charge and instruct the jury that it must unanimously determine which underlying battery constituted the crime of domestic battery. The district court denied the request. Johnson, Melissa, and their son, C.J., testified at trial as to their individual recollection of the events that occurred on October 5. Each testimony varied from the others as to the nature of the dispute and the order of the events. Specifically, Melissa testified that Johnson was the aggressor and physically attacked her, while Johnson testified that Melissa attacked him and that his actions were done in self-defense. However, each person testified that the alleged physical altercations occurred in different rooms throughout the house. Following the presentation of evidence, the district court provided the jury with an instruction that stated:
In order for the defendant to be guilty of Domestic Battery with Traumatic Injury in the Presence of a Child, as charged in Count I, the state must prove each of the following:
. . . .
3. the defendant [Johnson] committed a battery upon [Melissa] by restraining her, throwing her down, slapping her in the face, hitting her on the head, ...