from the District Court of the Fourth Judicial District of
the State of Idaho, Ada County. Steven J. Hippler, District
judgment of the district court is affirmed.
Ferguson Durham, PLLC, Boise, for appellant Adam David
Bodenbach. Craig H. Durham argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for
respondent State of Idaho. Kenneth K. Jorgensen argued.
David Bodenbach (Bodenbach) appeals from the judgment of
conviction entered against him in Ada County District Court
for first-degree murder and possession of cocaine. First,
Bodenbach argues that the district court's "initial
aggressor" jury instruction created reversible error
because the instruction was unnecessary, confusing, and
misstated Idaho law. Second, Bodenbach appeals the denial of
his motion to suppress statements he made shortly after the
shooting during a police interview. He argues that he did not
knowingly and intelligentlywaive his Miranda rights
because he was under the influence of drugs. Finally,
Bodenbach argues that the district court abused its
discretion when it sentenced him. For the reasons set forth
in this opinion, we affirm Bodenbach's judgment of
conviction and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
early morning of January 6, 2017, Bodenbach shot and killed
Ryan Harrison Banks (Banks) at the Park Village Apartments in
Boise, Idaho. At the time of the killing, Bodenbach resided
in a two-bedroom apartment that he shared with Jacob Kimsey
(Kimsey). Banks lived in the same complex as Bodenbach and
Kimsey but in an apartment that was across the courtyard from
January 5, 2017, sometime between 8:00 and 10:00 p.m.,
Bodenbach purchased and injected himself with cocaine.
Bodenbach claimed that Kimsey also injected himself with
cocaine around that time. Kimsey and Banks then drove to a
convenience store to purchase alcohol before the two of them
returned to the apartment Kimsey shared with Bodenbach.
Around 10:00 p.m., Bodenbach and Kimsey began arguing about
whether Bodenbach could borrow Kimsey's car. The argument
escalated and Kimsey shoved Bodenbach away from him. Banks
intervened and pushed Bodenbach back into Bodenbach's
bedroom and onto the bed. Banks was on top of Bodenbach
pinning him to the bed. Bodenbach testified that Banks was
pulled Banks off Bodenbach and walked him back to Banks'
apartment across the courtyard. Kimsey testified that Banks
was emotional after the altercation with Bodenbach. Kimsey
stayed with Banks for approximately five minutes attempting
to calm him down.
believed that Banks was no longer agitated, Kimsey went to
check on Bodenbach. When Kimsey arrived at the apartment, he
saw Bodenbach flipping his mattress over and throwing clothes
around in an effort to locate his pistol. Bodenbach accused
Banks of stealing his gun. Kimsey decided to return to
Banks' apartment, assuming Bodenbach would calm down.
to Kimsey, Banks was still emotional upon his return. There
is conflicting evidence as to whether Banks had a knife on
him at this time. Kimsey testified during trial that he did
not see a knife on Banks at any time that night. However,
during his interview with the police the night of Banks'
death, Kimsey stated that Banks had been carrying a knife
before he was shot.
eventually found his gun. He testified he decided to go to
Banks' apartment to check on Kimsey, as he was worried
Banks might harm him. Bodenbach took his pistol and walked
across the courtyard to Banks' apartment.
and Bodenbach's stories diverge at this point. Bodenbach
testified at trial that he knocked on Banks' door,
identifying himself and falsely saying that the police were
with him. Bodenbach claimed that he stated this because he
was concerned about what Banks might do. However, Kimsey
testified as follows: He did not hear Bodenbach knocking.
Rather, he and Banks had decided to go outside to smoke
cigarettes. Kimsey opened the door for Banks and Banks walked
out first, pausing after walking through the door. Once
Kimsey walked through the door, he could see Bodenbach
pointing a gun in their direction and heard Bodenbach yell at
Banks, "You thought I was fucking kidding. You think
I'm a fucking punk." Bodenbach testified that he
never raised the gun but rather had it in his jacket pocket.
said nothing in response to Bodenbach but lunged towards him.
Once Banks moved towards Bodenbach, Kimsey could not see
Bank's front or Bodenbach's gun. Bodenbach claimed
that prior to Banks lunging at him, Banks reached down to his
waistband and pulled out a knife. Banks pushed Bodenbach into
a pillar. Bodenbach claimed it was at this time that he
reached for his gun and shot Banks. Banks fell down.
Bodenbach ran off. The shooting occurred shortly after
was returning to his apartment, Bodenbach called 911 and told
the operator he had shot someone in the leg. (Banks had been
shot in the chest.) Bodenbach then returned to his apartment
and set his gun on a table. He testified that he was agitated
and decided to take some Xanax to calm down. After
purportedly taking the medication, Bodenbach went to check on
Boise Police Department responded to multiple 911 calls. The
officers encountered Bodenbach talking on a phone and holding
a knife, which he later claimed to have found on the ground
near where he shot Banks. He was ordered to drop the knife
and was handcuffed. Banks was located in a neighbor's
apartment. He was pronounced dead by paramedics at the scene.
Bodenbach was arrested, Bodenbach complained of pain in his
neck and back. He was transported to St. Alphonsus Regional
Medical Center where he was examined and held for several
hours. Around 2:00 a.m. on January 6, 2017, Boise Police
Detective Jason Pietrzak (Pietrzak) came to the hospital to
interview Bodenbach. Bodenbach later testified he did not
remember being interrogated by Pietrzak. After the interview,
Bodenbach was discharged from the hospital and booked into
the Ada County Jail.
State charged Bodenbach with first-degree murder, the
commission of a crime with a firearm,  and possession of
cocaine. Before trial, Bodenbach filed a motion to suppress
statements he made during the police interview at the
hospital, arguing that he did not knowingly and intelligently
waive his Miranda rights because he was under the
influence of Xanax. The district court denied the motion,
finding that Bodenbach was not under the influence of Xanax,
and, even if he were, he knowingly and intelligently waived
his Miranda rights.
case proceeded to trial. The State and Bodenbach presented
their cases, during which Bodenbach did not testify. After
both parties had rested, the district court stated it was
considering giving an instruction to the jury that would not
allow Bodenbach to claim self-defense if he had been the
"initial aggressor." Neither party had offered such
a proposed instruction, nor is such an instruction contained
in the Idaho Criminal Jury Instructions (ICJI).
district court ruled that it intended to give an
"initial aggressor" jury instruction, but it
allowed the defense to reopen its case to allow Bodenbach the
opportunity to testify in his own defense. Bodenbach took the
stand and testified. During the instruction conference,
Bodenbach's counsel made a general objection to the
district court giving an "initial aggressor"
instruction. The district court asked defense counsel if he
objected to the language contained in the proposed
instruction, to which he replied "no." Over the
objection of defense counsel, the district court provided the
jury with an instruction outlining when an initial aggressor
is entitled to claim self-defense-Instruction No. 28.
jury found Bodenbach guilty of first-degree murder, the use
of a firearm in the commission of a crime, and possession of
cocaine. The district court sentenced Bodenbach to life in
prison with twenty-five years fixed for the murder (including
the sentencing enhancement for use of a firearm) and to a
concurrent seven years with three years fixed for the
possession of a controlled substance. Bodenbach timely
There was no reversible error in the district
court's giving of the initial aggressor
the defense reopened its case and Bodenbach testified, the
district court provided to counsel a proposed jury
instruction regarding what an initial aggressor needed to do
in order to claim self-defense. Bodenbach's counsel gave
a general objection to the initial aggressor instruction. The
district court overruled the general objection and provided
the instruction to the jury.
appeal, Bodenbach argues that the district court erred in
instructing the jury that a defendant was not entitled to
claim self-defense if the defendant was the initial
aggressor. Bodenbach further argues that the initial
aggressor instruction misstated Idaho law, was unclear and
vague, and improperly reduced the State's burden to prove
that the homicide was unlawful.
State argues that the issue was not preserved below because
Bodenbach failed to make any of these arguments to the
district court. The State contends that making a general
objection to the instruction as a whole, but not objecting on
a specific ground, was not enough to preserve the issue on
appeal. Further, the State argues that Bodenbach failed to
properly claim, let alone prove, fundamental error.
The only issue preserved is whether an initial aggressor
instruction is appropriate under Idaho law.
threshold issue is whether Bodenbach properly preserved the
argument regarding the initial aggressor jury instruction.
"This Court will not consider issues raised for the
first time on appeal." State v.
Garcia-Rodriguez, 162 Idaho 271, 275, 396 P.3d 700, 704
(2017) (quoting Mickelsen Constr., Inc. v. Horrocks,
154 Idaho 396, 405, 299 P.3d 203, 212 (2013)).
Bodenbach's counsel specifically objected to the giving
of the instruction. However, the discussion between the
district court and Bodenbach's counsel is informative.
THE COURT: [I]f I do give a first aggressor instruction, do
you have a problem with the language of this one?
[DEFENSE COUNSEL]: No.
. . . .
THE COURT: Okay. I'll let you be heard on the initial