               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 46828

STATE OF IDAHO,                                 )
                                                ) Filed: May 4, 2020
       Plaintiff-Respondent,                    )
                                                ) Karel A. Lehrman, Clerk
v.                                              )
                                                )
CHENG YANG,                                     )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Minidoka County. Hon. Jonathan P. Brody, District Judge.

       Judgment of conviction and unified sentence of fifteen years, with a minimum
       period of confinement of ten years, for conspiracy to traffic in
       marijuana, affirmed; order denying I.C.R. 35 motion for reduction of
       sentence, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Elizabeth A. Allred,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

LORELLO, Judge
       Cheng Yang appeals from his judgment of conviction and sentence for conspiracy to
traffic in marijuana and the district court’s order denying his I.C.R. 35 motion for reduction of
sentence. Yang contends there was a fatal variance between the charging document and the
elements instruction and that the district court abused its sentencing discretion. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Yang was arrested during an undercover drug operation after he and two other
individuals delivered more than 100 pounds of marijuana to an undercover officer. Yang drove



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the vehicle carrying the marijuana to the location of the drug purchase. Yang was charged with
conspiracy to traffic in marijuana for his role in the drug transaction. I.C. §§ 18-1701 and
37-2732B(a)(1)(C). In addition to Yang and the two other men arrested at the location of the
controlled buy, the State alleged that a fourth coconspirator participated in the drug transaction.
          Yang pled not guilty, and the case proceeded to trial. Before the case was submitted to
the jury, Yang’s counsel objected to the district court’s jury instruction on the elements of the
conspiracy charge, arguing that the instruction was inconsistent with the allegations pled in the
charging document. The district court overruled Yang’s objection.
          The jury found Yang guilty of the conspiracy charge. The district court sentenced Yang
to a unified term of fifteen years, with a minimum period of confinement of ten years.
Subsequently, Yang filed an I.C.R. 35 motion for reduction of sentence, which the district court
denied. Yang appeals.
                                                 II.
                                   STANDARD OF REVIEW
          The existence of an impermissible variance between a charging instrument and the jury
instructions is a question of law over which we exercise free review. State v. Sherrod, 131 Idaho
56, 57, 951 P.2d 1283, 1284 (Ct. App. 1998).
          When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the lower court: (1) correctly perceived the
issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted
consistently with any legal standards applicable to the specific choices before it; and (4) reached
its decision by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158
(2018).
                                                III.
                                            ANALYSIS
          Yang argues the district court erred by creating a fatal variance between the jury
instructions and the second amended information, imposing an excessive sentence, and denying
his I.C.R. 35 motion. The State responds that the district court properly instructed the jury and
imposed a reasonable sentence. We hold that Yang has failed to show error in the challenged
elements instruction, his sentence, or the denial of his I.C.R. 35 motion.


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A.     Variance
       Yang argues that there was a fatal variance between the elements instruction for
conspiracy to traffic in marijuana and the second amended information charging him with that
offense. Our task in resolving the issue presented is two-fold. First, we must determine whether
there is a variance between the information used to charge Yang with conspiracy to traffic in
marijuana and the instructions presented to the jury. See State v. Brazil, 136 Idaho 327, 329, 33
P.3d 218, 220 (Ct. App. 2001). Second, if a variance exists, we must examine whether it rises to
the level of prejudicial error requiring reversal of the conviction. Id. A variance between a
charging instrument and a jury instruction necessitates reversal only when it deprives the
defendant of the right to fair notice or leaves him or her open to the risk of double jeopardy.
State v. Windsor, 110 Idaho 410, 417-18, 716 P.2d 1182, 1189-90 (1985); Brazil, 136 Idaho at
330, 33 P.3d at 221.
       The second amended information alleged that Yang “did willfully and knowingly
combine, conspire, confederate, and agree with [S.C.], [D.C.], and [K.E.]” to deliver 25 pounds
or more of marijuana. (Emphasis added.) In Instruction 18, the district court instructed the jury
on the elements necessary to find Yang guilty of the conspiracy charge. Instruction 18 reads:
               In order for [Yang] to be guilty of Conspiracy, the state must prove each
       of the following:
               1.     On or about June 4, 2017
               2.     in the state of Idaho
               3.     the defendant Cheng Yang, and [S.C.], [D.C.] and/or [K.E.] agreed
               4.     to commit the crime of Trafficking in Marijuana to deliver
                      twenty-five (25) pounds or more of marijuana
               5.     [Yang] intended that the crime would be committed;
               6.     one of the parties to the agreement performed at least one of the
                      following acts:
                      a.      There was an agreement to deliver twenty-five (25) pounds
                              or more of marijuana to-wit: 100 pounds for the amount of
                              $130,000; and/or
                      b.      arrangements were made to transport twenty-five (25)
                              pounds or more of marijuana into Minidoka County, Idaho;
                              and/or,
                      c.      that there was actual transportation and/or delivery of
                              twenty-five (25) pounds or more of marijuana

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               7.     and such act/s was done for the purpose of carrying out the
                      agreement.
(Emphasis added.) Yang objected to the use of “and/or” in the third element of Instruction 18,
arguing that the term made the instruction inconsistent with the conjunctive list of the
coconspirators alleged in the second amended information. The district court rejected Yang’s
argument, concluding that the jury instruction could list the coconspirators’ identities
disjunctively when the charging document listed them conjunctively without creating a fatal
variance.
       On appeal, Yang argues the district court erred because, by listing the coconspirators
disjunctively, Instruction 18 relieved the State of its burden to prove the existence of an
agreement between all the coconspirators alleged in the charging document to commit the crime
of trafficking in marijuana. That is, Yang alleges that Instruction 18 deprived him of fair notice
of the charge against him and prejudiced his defense.        We disagree.    Use of “and/or” in
Instruction 18 did not create a fatal variance. Idaho Code Section 18-1701 requires that a
defendant have an agreement to commit a crime with only one other person to form a
conspiracy--not the number of individuals pled in the charging document. See State v. Goggin,
157 Idaho 1, 12-13, 333 P.3d 112, 123-24 (2014). Additionally, the identity of a coconspirator is
not a necessary element of the crime of conspiracy. See id.; see also United States v. Ray, 899
F.3d 852, 865-66 (10th Cir. 2018) (holding that no constructive amendment occurred when the
district court substituted the name of the defendant’s wife with the phrase “another individual”
when reading the indictment to the jury); United States v. Johnson, 719 F.3d 660, 668 (8th Cir.
2013) (“Because the identity of a defendant’s coconspirators is not an essential element of
conspiracy, the district court’s failure to include the names of the coconspirators in the jury
instructions was not a constructive amendment of the indictment.”) (citation omitted). Thus,
despite pleading a conjunctive list of alleged coconspirators in the second amended information,
the State was not required to prove that all three coconspirators agreed with Yang to commit the
crime of trafficking in marijuana. See Berger v. United States, 295 U.S. 78, 81 (1935) (“It is
settled by the great weight of authority that, although an indictment charges a conspiracy
involving several persons and the proof establishes the conspiracy against some of them only, the
variance is not material.”).     Thus, whether Yang’s alleged coconspirators were listed



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conjunctively or disjunctively in the jury instructions was immaterial. Proof that Yang had an
agreement with any one of the alleged coconspirators was sufficient. Consequently, Instruction
18 did not deprive Yang of fair notice or prejudice his defense because the instruction identified
the same alleged coconspirators as the second amended information.
B.      Sentence Review
        Yang argues that his sentence is excessive. Specifically, Yang contends that the district
court failed to give proper weight to his status as a first-time offender and his familial and
community support. The State responds that the district court properly considered both factors in
fashioning Yang’s sentence. We hold that Yang has failed to show the district court abused its
sentencing discretion.
        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).
        The district court considered Yang’s criminal history and support network, but weighed
them against other factors. The district court also found that Yang made a calculated decision,
motivated by greed, to traffic more than four times the minimum amount of marijuana necessary
to be convicted of trafficking. See I.C. § 37-2732B(a)(1)(C). Moreover, the district court further
found that Yang tried to manipulate the judicial system by testifying during trial that he was


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unaware he was transporting marijuana and then (in hopes of receiving a more lenient sentence
by accepting responsibility for his crime) asserting that his trial testimony was false at
sentencing. Based upon our review of the record, we cannot say the district court abused its
discretion.


C.     I.C.R. 35 Motion
       Yang argues that the district court erred by denying his I.C.R. 35 motion for reduction of
sentence. According to Yang, the sentences imposed upon his coconspirators and his recantation
of the confession he gave during sentencing showed that his sentence is unreasonable. The State
responds that the district court properly concluded that the evidence Yang submitted with his
I.C.R. 35 motion failed to show that his sentence is unreasonable.
       A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency,
addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d
23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In
presenting a Rule 35 motion, the defendant must show that the sentence is excessive in light of
new or additional information subsequently provided to the district court in support of the
motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). In conducting our
review of the grant or denial of an I.C.R. 35 motion, we consider the entire record and apply the
same criteria used for determining the reasonableness of the original sentence. State v. Forde,
113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987). Based upon our review of the record,
including any new information Yang submitted in support of his Rule 35 motion, we conclude
that no abuse of discretion has been shown.
                                                IV.
                                         CONCLUSION
       Yang has failed to show a fatal variance between the charging document and the elements
instruction for conspiracy to traffic in marijuana. Additionally, Yang has failed to show that his
sentence is excessive or that the district court abused its discretion in denying his I.C.R. 35
motion for reduction of sentence. Consequently, Yang’s judgment of conviction and unified
sentence of fifteen years, with a minimum period of confinement of ten years, for conspiracy to
traffic in marijuana and the district court’s order denying his I.C.R. 35 motion are affirmed.


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Chief Judge HUSKEY and Judge GRATTON, CONCUR.




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