               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42155

STATE OF IDAHO,                                  ) 2015 Opinion No. 62
                                                 )
       Plaintiff-Respondent,                     ) Filed: October 2, 2015
                                                 )
v.                                               ) Stephen W. Kenyon, Clerk
                                                 )
JUAN ROBERTO JIMENEZ,                            )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       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
       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.
                                                 I.
                     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

                                                 1
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.
                                               II.
                                          ANALYSIS
        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

                                               2
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 instruction enumerates the five elements required to find that a defendant
acted in self-defense: (1) the defendant must have believed that the defendant was in imminent
danger of bodily harm; (2) the defendant must have believed that the action the defendant took
was necessary to save the defendant from the danger presented; (3) a reasonable person, under
similar circumstances, would have believed that the defendant was in imminent danger of bodily
injury and believed that the action taken was necessary; (4) the defendant must have acted only
in response to that danger and not for some other motivation; and (5) the defendant’s right of
self-defense ends when there is no longer any reasonable appearance of danger. I.C.J.I. 1517.
Once a defendant asserts self-defense, the burden is on the prosecution to prove beyond a



                                                   3
reasonable doubt that the defendant has not established at least one of the elements of self-
defense. I.C.J.I. 1517.
        Jimenez argues the fourth element of the standard instruction misstates the law by
instructing the jury that self-defense is only available where the defendant acts in response to the
danger presented and “not for any other motivation.” He contends that this instruction suggests
that a defendant’s use of self-defense is not justifiable if the defendant, in addition to responding
to the danger presented, is also motivated to act by some other factor. According to Jimenez,
this alleged misstatement effectively diminished the State’s burden of proof, allowing the State
to disprove Jimenez’s affirmative defense by showing that he also acted out of “anger or to teach
[Alvarado] a lesson.” Jimenez avers that diminishing the State’s burden of disproving his
affirmative defense violated his constitutional right to due process, thereby satisfying the first
prong of the Perry analysis. He suggests that “allowing the State to disprove a fact that is not an
element of self-defense is the equivalent of not requiring the State to disprove self-defense at
all.”   This raises the question of whether the Due Process Clause of the United States
Constitution or the Due Process Clause of the Idaho Constitution requires the State to disprove a
defendant’s affirmative defense. We hold that they do not.1
        “In a criminal trial, the State must prove every element of the offense, and a jury
instruction violates due process if it fails to give effect to that requirement.” Middleton v.
McNeil, 541 U.S. 433, 437 (2004) (per curiam). However, the Due Process Clause of the United
States Constitution does not require the State to disprove a defendant’s affirmative defense. See
Martin v. Ohio, 480 U.S. 228, 236 (1987); Patterson v. New York, 432 U.S. 197, 210 (1977). In
Martin, the United States Supreme Court reiterated its holding in Patterson, acknowledging that
when the Fifth Amendment was adopted and the Fourteenth Amendment ratified, the common-
law rule regarding affirmative defenses, including self-defense, imposed the burden of proof
upon the defendant. Martin, 480 U.S. at 235-36. Although many states subsequently abandoned

1
        The Idaho Constitution contains a provision protecting a defendant’s right to due process
that is nearly identical to the Fourteenth Amendment. Compare IDAHO CONST. art I, § 13 (“No
person shall . . . be deprived of life, liberty or property without due process of law.”) with U.S.
CONST. amend. XIV § 1 (“nor shall any State deprive any person of life, liberty, or property,
without due process of law”). Jimenez provides no argument for why this Court should interpret
the Idaho Constitution differently than the United States Constitution to support his claim of a
due process violation. And, we find no reason to interpret the Idaho Constitution as providing
more protection of a defendant’s right to due process than the United States Constitution.
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the common-law rule--requiring the prosecution to prove the absence of self-defense once
properly raised by the defendant--such practice was not constitutionally required. Id. The Court
held that states continuing with the common-law practice of requiring defendants to prove their
affirmative defense did not violate the Constitution. Id.
        The Idaho Supreme Court has followed this precedent, holding that a shift in the burden
of persuasion from the State to a defendant does not implicate the Constitution. State v. Mubita,
145 Idaho 925, 942, 188 P.3d 867, 884 (2008), abrograted in part on other grounds by Verska v.
Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011). Therefore, contrary to
Jimenez’s assertion, there can be no violation of the United States Constitution or the Idaho
Constitution when a jury instruction merely diminishes the State’s burden of disproving a
defendant’s affirmative defense.
        Even if we were to assume that the instruction did, in fact, misstate the law 2 and diminish
the State’s burden of disproving Jimenez’s affirmative defense, this does not constitute a
violation of Jimenez’s due process rights under the United States Constitution or the Idaho
Constitution. Jimenez has failed to meet his burden of proof under the first prong of the Perry
analysis. Therefore, Jimenez has not demonstrated fundamental error.
B.      Prosecutorial Misconduct
        Jimenez next contends that the prosecutor committed misconduct by misstating the law
regarding the reasonable person standard during closing arguments.           Specifically, Jimenez
asserts that the prosecutor’s conduct “invit[ed] the jury to create their own ‘reasonable person’
standard, which deprived Mr. Jimenez of a right essential to his self-defense assertion” and
violated his “due process right to a fair trial.”
        Jimenez made no contemporaneous objection to the prosecutor’s closing statement at
trial. In Perry, the Idaho Supreme Court clarified the fundamental error doctrine as it applies to
allegations of prosecutorial misconduct. Perry, 150 Idaho 209, 245 P.3d 961. If the alleged
misconduct was not followed by a contemporaneous objection, an appellate court should reverse
when the defendant persuades the court that the alleged misconduct rises to the level of
fundamental error. Id. at 228, 245 P.3d at 980.


2
       This Court remains mindful that the Idaho Criminal Jury Instructions are deemed
presumptively correct. See McKay v. State, 148 Idaho 567, 571 n.2, 225 P.3d 700, 704 n.2
(2010); State v. Merwin, 131 Idaho 642, 647, 962 P.2d 1026, 1031 (1998).
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       The reasonable person language Jimenez takes issue with on appeal appeared in the self-
defense jury instruction, I.C.J.I. 1517:
               3. The circumstances must have been such that a reasonable person,
       under similar circumstances, would have believed that the defendant was in
       imminent danger of bodily injury and believed that the action taken was
       necessary.
               ....
               In deciding upon the reasonableness of the defendant’s beliefs, you should
       determine what an ordinary and reasonable person might have concluded from all
       the facts and circumstances which the evidence shows existed at that time, and not
       with the benefit of hindsight.
               The danger must have been present and imminent, or must have so
       appeared to a reasonable person under the circumstances. A bare fear of bodily
       injury is not sufficient to justify a battery. The defendant must have acted under
       the influence of fears that only a reasonable person would have had in a similar
       position.
(emphasis added). The prosecutor referenced the reasonable person standard to the jury early
during his closing arguments, prior to discussing I.C.J.I. 1517:
       You are allowed and encouraged under [Instruction 2] to use your everyday
       experiences and your common sense to decide what happened because you, the
       jury, are the community “reasonable person.” When the instructions that you
       were read indicated what would a reasonable person do, well, you are the
       reasonable person. What would a reasonable person in the community do.
               . . . And reason and common sense is going to be a constant theme in your
       deliberations, as I’ve said, that you are the community’s barometer as to what is
       reasonable and what a reasonable person would do under the circumstances.
(emphasis added). Then, regarding I.C.J.I 1517, the prosecutor stated:
       Now, in order to find [Jimenez] acted in self-defense, that instruction tells you
       that all of these points, all these five things on that instruction have to be met. . . .
       Number three, that--and this is where you get to interject your reason and
       common sense--number three, that a reasonable person under similar
       circumstances would have believed that he was in imminent danger of bodily
       injury and believed, that the reasonable person would have believed that shooting
       his brother was necessary.
(emphasis added).
       Prosecutorial misconduct may so infect the trial with unfairness as to make the resulting
conviction a denial of due process under the Fourteenth Amendment to the United States
Constitution. Greer v. Miller, 483 U.S. 756, 765 (1987); Perry, 150 Idaho at 227, 245 P.3d at
979; State v. Gamble, 146 Idaho 331, 344, 193 P.3d 878, 891 (Ct. App. 2008). To constitute a
due process violation, the prosecutorial misconduct must result in the denial of the defendant’s

                                                  6
right to a fair trial. Gamble, 146 Idaho at 344, 193 P.3d at 891. However, as discussed above,
the Due Process Clause of the Fourteenth Amendment does not require the State to disprove a
defendant’s affirmative defense. See Martin, 480 U.S. at 235-36; Mubita, 145 Idaho at 942, 188
P.3d at 884.     There can be no violation of the United States Constitution or the Idaho
Constitution when the State’s burden of disproving a defendant’s affirmative defense is
diminished.
       Jimenez’s prosecutorial misconduct argument is premised on the prosecutor’s alleged
mischaracterizations of the reasonable person standard that appeared in the self-defense jury
instruction. He argues that the misstatements “invit[ed] the jury to create their own standard of
proof.” He points to State v. Erickson, 148 Idaho 679, 227 P.3d 933 (Ct. App. 2010), where the
prosecutor misrepresented the standard of “proof beyond a reasonable doubt,” effectively
diminishing the State’s burden of proving the elements of the charged crime. Id. at 685-86, 227
P.3d at 939-40. We held that the prosecutor’s misstatement of the burden of proof deprived the
defendant “of a right essential to his defense.” Id. at 686, 227 P.3d at 940. However, this case is
distinguishable from Erickson; the prosecutor’s misstatement in Erickson diminished the State’s
burden of proof for an element of the crime, whereas the alleged misstatement here would only
have diminished the State’s burden of disproving an element of the defendant’s affirmative
defense. Jimenez does not argue that the alleged mischaracterization impacted the prosecutor’s
ability to establish an element of the crime itself.
       Even if we were to assume that the prosecutor mischaracterized the reasonable person
standard, the effect of the misstatement would have been a diminishment of the State’s burden of
disproving Jimenez’s affirmative defense. Because neither the United States Constitution’s nor
the Idaho Constitution’s Due Process Clause are implicated when the State’s burden of
disproving an affirmative defense is diminished, Jimenez has failed to meet his burden of
showing fundamental error under the first prong of the Perry analysis.
C.     Motion for New Trial
       Jimenez also asserts that the district court erred by denying his motion for a new trial
under Idaho Criminal Rule 34 and Idaho Code § 19-2406. Specifically, he argues that the court
improperly concluded that the newly discovered testimonial evidence would not probably
produce an acquittal.



                                                   7
       The denial of a motion for a new trial is reviewed under an abuse of discretion standard.
State v. Egersdorf, 126 Idaho 684, 687, 889 P.2d 118, 121 (Ct. App. 1995). When a trial court’s
discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry
to determine: (1) whether the lower court correctly perceived the issue as one of discretion;
(2) whether the lower court acted within the boundaries of such discretion and consistently with
any legal standards applicable to the specific choices before it; and (3) whether the lower court
reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d
1331, 1333 (1989). Because a motion for a new trial based upon newly discovered evidence
involves both factual and legal questions, “[a]n abuse of discretion will be found if the trial
court’s findings of fact are not supported by substantial evidence or if the trial court does not
correctly apply the law.” State v. Stevens, 146 Idaho 139, 144, 191 P.3d 217, 222 (2008).
       A motion for a new trial based on newly discovered evidence must disclose: (1) that the
evidence is newly discovered and was unknown to the defendant at the time of the trial; (2) that
failure to learn of the evidence was due to no lack of diligence on the part of the defendant;
(3) that the evidence is material, not merely cumulative or impeaching; and (4) that it will
probably produce an acquittal. State v. Drapeau, 97 Idaho 685, 691, 551 P. 972, 978 (1976).
“Motions for a new trial based on newly discovered evidence are disfavored and should be
granted with caution, reflecting the importance accorded to considerations of repose, regularity
of decision making, and conservation of scarce judicial resources.” Stevens, 146 Idaho at 144,
191 P.3d at 222.
       In support of his motion for a new trial, Jimenez presented affidavits of two new
witnesses who allegedly spoke with Alvarado after the incident at issue. The information within
the affidavits corroborated trial testimony that Alvarado was coming over to Jimenez’s house to
harm him and that Alvarado had a gun during the encounter. The affidavit from the first witness
stated that Alvarado told the witness, “yeah I meant to kill that fool” and that Alvarado had
“stashed the gun” he had been carrying after he was shot. The affidavit from the second witness
stated that the witness asked Alvarado why Jimenez would shoot him, and Alvarado responded,
“Because [Jimenez] knew I was coming over to beat his ass.”
       During trial, Jimenez’s entire defense hinged upon whether he was justified in defending
himself. During the district court hearing on the motion, Jimenez asserted that “if the jury knew



                                               8
things contained in both these affidavits in their deliberation, they probably would have acquitted
the defendant.” The district court disagreed.
       The district court clearly acknowledged its discretion in denying Jimenez’s motion for a
new trial. In its ruling on the motion, the district court found that the evidence was newly
discovered, its absence was not due to lack of diligence on the part of the defendant, and it was
material. However, regarding the final element, the court reasoned:
                The real issue for me is that [sic] the last element, which is would this
       evidence probably have produced an acquittal. And as I heard this trial and I--
       when the jury went out, I said to myself, you know, there’s one of two things
       that’s going to happen here. They’re either going to believe that [Alvarado] had a
       gun, and [Jimenez] shot back at him in self-defense, which would have, in itself,
       have [sic] produced an acquittal, or they’re going to conclude that even if all that
       happened, that the problem with the self-defense argument in this case is that
       [Jimenez] used excessive force. And the conclusion that would have supported
       that is that [Alvarado] was shot in the back by one of these shots. I said, I wonder
       how the jury’s going to react to that argument, which I think is one that the State
       made, by showing that even though self-defense was present, you lose it if you
       use excessive force.
                You add to that a question as to the credibility of [Jimenez] himself with
       regard to what he did with his own gun. By that I mean there was testimony from
       him that he threw it out into the yard and then testimony from the police that they
       ultimately found it concealed under a cushion in his house. That did not sit well
       in terms of credibility for this defendant because I think that was a material
       dispute--well, not material dispute. Material difference in explaining how the
       incident happened. Didn’t make any sense to me, and I don’t know whether it
       made any sense to this jury or not.
                So here’s the point I’m making: This jury certainly had evidence that they
       could have concluded, irrespective of the information in the affidavits of [the two
       witnesses], that [Alvarado], in fact, had a gun and that [Jimenez] was operating in
       self-defense when he shot back. All of that information was in this record, and I
       certainly agree with the defendant that the testimony of these two individuals
       would help support that finding.
                The other thing the jury could have concluded in this case, though, is that
       even if [Alvarado] had a gun, and they believed everything [Jimenez] said about
       the fear that he had and the fact that he saw [Alvarado] with the gun and so forth,
       the question is whether the number of times that he shot back at his brother was
       excessive, and again, it was undisputed that one of those shots was in
       [Alvarado’s] back, which certainly would lead 12 people to conclude that’s
       excessive force when somebody’s running away from you, and you shoot them.
       So maybe they found the defendant guilty in this case because, A, they didn’t
       believe the defendant’s testimony and [another witness’s] testimony that
       [Alvarado] had a gun, [Jimenez] used excessive force by shooting him in the back



                                                9
       as he was retreating and thus negating the self-defense argument. I don’t know.
       We have no way of knowing.
               And that’s the problem with this motion for new trial, because I cannot
       find that even with the presentation of the two testimonies from [the two
       witnesses] that that would probably produce an acquittal because the jury could
       have found either way, and if they found the second way, in other words, under
       the excessive force theory, their testimony really would not have made that much
       difference.
The district court concluded, “[Jimenez] has not carried the burden of convincing this court that a
new trial is warranted in this case.” The district court based its denial upon the fourth Drapeau
requirement. Jimenez now argues that the district court erred in finding that this requirement
was not satisfied because the court based its conclusion on an erroneous presumption that
Alvarado was retreating when Jimenez shot him in the back. However, the inferences that the
court drew from the evidence presented during the trial are irrelevant to its finding regarding the
fourth Drapeau element, nor are the court’s inferences indicative of the jury’s conclusions.
       In determining whether the newly discovered evidence would probably produce an
acquittal, as required under Drapeau, the court considered the evidence presented to the jury
during the trial. Based upon that evidence, the court reasoned that the jury had substantial
evidence to support its guilty verdict on one of two theories: either Alvarado was unarmed when
Jimenez shot him, or Jimenez used excessive force when he acted in self-defense. The court
acknowledged that because there were conflicting testimonies about the details of the encounter,
the proffered evidence would help support Jimenez’s self-defense argument.           But because
evidence suggesting that Alvarado had a gun and intended to harm Jimenez was already
presented to the jury through the testimonies of a trial witness and Jimenez himself, the court
was not convinced that the proffered testimonies would have enough impact to probably produce
an acquittal.
       We agree with the district court’s assessment of the newly discovered evidence. While
the testimonies would support Jimenez’s self-defense claim, they did not present a novel
argument for the jury to consider. We are not persuaded that merely providing the jury with
more evidence in support of the same contentions that were already presented at trial would
probably produce an acquittal. Jimenez has failed to carry his burden of proving that the
evidence would go beyond the bare possibility of acquittal. See State v. Ames, 112 Idaho 144,
148, 730 P.2d 1064, 1068 (Ct. App. 1986) (holding that “a bare possibility of acquittal” is not
enough to sustain a defendant’s burden of proving that newly discovered evidence will probably
                                                10
produce an acquittal) (emphasis added). Therefore, the district court did not abuse its discretion
by denying Jimenez’s motion for a new trial.
D.     Abuse of Discretion in Sentencing
       Finally, Jimenez argues that the district court abused its discretion in sentencing. 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). To prevail on a claim that a sentence is an abuse of discretion, the
defendant must show that in light of sentencing criteria, the sentence was excessive under any
reasonable view of the facts. State v. McGiboney, 152 Idaho 769, 773, 274 P.3d 1284, 1288 (Ct.
App. 2012). Where reasonable minds might differ, we respect the discretion of the trial court
and will not supplant the trial court’s views with our own. Id.
       Jimenez argues that the court abused its sentencing discretion by imposing an excessive
sentence because it did not properly consider that Jimenez acted under provocation from
Alvarado, as required by Idaho Code § 19-2521(2). He suggests that the court should have
considered the following factors:
              (c) The defendant acted under a strong provocation;
              (d) There were substantial grounds tending to excuse or justify the
       defendant’s criminal conduct, though failing to establish a defense;
              (e) The victim of the defendant’s criminal conduct induced or facilitated
       the commission of the crime.


                                                11
I.C. § 19-2521(2). However, as a matter of policy in Idaho, the primary consideration in
sentencing is the good order and protection of society, and all other factors are subservient to that
end. State v. Hunnel, 125 Idaho 623, 627, 873 P.2d 877, 881 (1994); State v. Pederson, 124
Idaho 179, 180, 857 P.2d 658, 659 (Ct. App. 1993).
       During sentencing, the district court did consider that Jimenez acted under provocation.
The court acknowledged the obviousness of existing tensions between Jimenez and Alvarado,
stating it “makes no sense to me why brothers would be packing guns, potentially shooting at
each other, unless there was something really, really serious happening there.”              It also
acknowledged Jimenez’s self-defense arguments, and the jury’s rejection of that defense.
However, the court also considered Jimenez’s use of a weapon, his “character that is of an
aggressive nature,” and his “lack of remorse for [his] brother,” concluding that Jimenez’s
punishment was warranted both from a deterrent standpoint and “for the good order and
protection of society.” Applying the appropriate standards and having reviewed the record in
this case, we cannot say that the district court abused its discretion.
                                                 IV.
                                          CONCLUSION
       Jimenez has failed to show fundamental error regarding the alleged erroneous jury
instructions and claims of prosecutorial misconduct. Further, the district court did not abuse its
discretion in denying Jimenez’s motion for a new trial because the newly discovered evidence
would not probably produce an acquittal. Finally, the district court did not abuse its sentencing
discretion. Jimenez’s judgment of conviction and sentence are affirmed.
       Chief Judge MELANSON and Judge GRATTON CONCUR.




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