2015 Opinion No. 62
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker, District Judge.
Judgment of conviction and sentences for aggravated battery with a firearm and unlawful possession of a firearm, with a persistent violator enhancement, affirmed.
Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy Attorney General, Boise, for respondent.
GUTIERREZ, Judge. Chief Judge MELANSON and Judge GRATTON CONCUR.
Juan Roberto Jimenez appeals from his judgment of conviction after he was found guilty of aggravated battery with a firearm and unlawful possession of a firearm, as well as being a persistent violator. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Jimenez and his brother, Jorge Alvarado, had a tense relationship. On February 9, 2013, the two engaged in several heated telephone conversations, concluding with Alvarado telling Jimenez he was coming over to Jimenez's house. In response to this perceived threat, Jimenez secured a gun from a friend. When Alvarado arrived, he got out of his car in front of Jimenez's house. The details of the events following Alvarado's arrival are disputed. During trial, Jimenez testified that he discharged warning shots into the ground in response to Alvarado's threats and advances and that Alvarado was armed and pointing a gun at his head. In
contrast, Alvarado testified that he was unarmed, having left his gun in his car, and that Jimenez shot him twice initially and then another three or four times after Alvarado tripped over a curb and fell to the ground. Alvarado sustained two bullet wounds in each leg and one bullet wound in his lower back.
Jimenez was charged with aggravated battery enhanced with the use of a firearm in its commission, Idaho Code § § 18-903, 18-908, 19-2520, and with unlawful possession of a firearm with a persistent violator sentence enhancement, I.C. § § 18-3316, 19-2514. Jimenez requested a self-defense instruction during the jury instruction conference. The court gave the pattern jury instructions for self-defense, Idaho Criminal Jury Instructions 1517, 1518, and 1519. Jimenez did not object to those instructions. Each of them referenced a " reasonable person" standard. During closing arguments, the prosecutor suggested that the jurors themselves were the " community 'reasonable person.'" The jury found Jimenez guilty of aggravated battery with a weapons enhancement, unlawful possession of a firearm, and being a persistent violator of the law.
Prior to sentencing, Jimenez filed a motion for a new trial, citing to newly discovered evidence. He supported his motion with affidavits from two witnesses who swore to having conversations with Alvarado after the encounter at issue. The witnesses averred that Alvarado made statements regarding his stashing of the gun after being shot and his intent to harm Jimenez during the encounter. The district court denied this motion, finding that the newly discovered evidence would not probably produce an acquittal.
The district court sentenced Jimenez to a unified sentence of twenty-eight years with eight years determinate on the aggravated battery conviction and a concurrent sentence of five years determinate for the unlawful possession of a firearm conviction. Jimenez appeals.
Jimenez raises four issues on appeal. First, Jimenez contends that the district court committed fundamental error by providing an erroneous self-defense jury instruction. Second, he contends that the prosecutor committed misconduct during closing arguments by mischaracterizing the " reasonable person" standard and that this misconduct constituted fundamental error. Third, Jimenez argues that the district court abused its discretion in denying his motion for a new trial. Finally, Jimenez asserts that the district court abused its sentencing discretion. We address each issue in turn.
A. Jury Instructions
Jimenez argues the trial court committed fundamental error by providing an erroneous jury instruction relating to his self-defense claim. Whether the jury has been properly instructed is a question of law over which we exercise free review. State v. Severson, 147 Idaho 694, 710, 215 P.3d 414, 430 (2009). When reviewing jury instructions, we ask whether the instructions as a whole, and not individually, fairly and accurately reflect applicable law. State v. Bowman, 124 Idaho 936, 942, 866 P.2d 193, 199 (Ct.App. 1993). Here, Jimenez requested the court give the jury a self-defense instruction and did not object to the pertinent jury instruction at trial.
Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). However, when a defendant fails to object to a jury instruction before the trial court, we will still review the jury instruction for fundamental error. State v. Adamcik, 152 Idaho 445, 472, 272 P.3d 417, 444 (2012). To prove fundamental error, a defendant must persuade the court that the alleged error: (1) violated one or more of the defendant's unwaived constitutional rights; (2) is clear or obvious without the need for reference to any additional information not contained in the appellate record; and (3) affected the outcome of the trial proceedings. State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010).
The instruction Jimenez takes issue with is the standard Idaho Criminal Jury Instruction 1517. This ...