               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 45641

STATE OF IDAHO,                                  )
                                                 )    Filed: May 16, 2019
       Plaintiff-Respondent,                     )
                                                 )    Karel A. Lehrman, Clerk
v.                                               )
                                                 )    THIS IS AN UNPUBLISHED
FINIS EUGENE WHITE,                              )    OPINION AND SHALL NOT
                                                 )    BE CITED AS AUTHORITY
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Steven J. Hippler, District Judge.

       Judgment of conviction and sentence for aggravated assault, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Jason C. Pintler, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Finis Eugene White appeals from the district court’s judgment of conviction and sentence
for aggravated assault. He argues that the district court (1) erred by ordering him to undergo a
psychosexual evaluation, and (2) abused its discretion by imposing an excessive sentence. For
the reasons set forth below, we affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       White was charged with battery with intent to commit rape. The charge arose after the
victim, C.H., informed police that White attempted to rape her. C.H. reported to police that
White stopped by the hotel where C.H. was working to give her Norco pills. When White
arrived, he and C.H. went into an unoccupied hotel room. White gave C.H. three Norco pills.
Thereafter, White grabbed C.H., threw her on the bed, and laid on top of her. C.H. reported that


                                                 1
White rubbed her vagina outside of her clothing, pulled her shirt up, kissed her breasts, and
attempted to pull down her pants. C.H. told White to get off of her and to stop. After some time,
C.H. was able to remove her cell phone from her pocket, hit the call button, dial her boss’s phone
number, and yell for help. The attack stopped after C.H.’s co-workers began searching the hotel
and yelled for her from the hotel hallway. Eventually, C.H. reported the attack to police. When
questioned, C.H. told police and testified to the grand jury that she did not know what happened
to the Norco pills that White had given her. Further, C.H. claimed that she did not consume the
pills.
         The grand jury issued an indictment charging White with battery with intent to commit
rape and the State filed a persistent violator enhancement. Five months later, C.H. admitted that
she had lied to the police and the grand jury regarding the Norco pills. C.H. explained that she
had consumed the pills prior to calling the police. Because of the inconsistencies in C.H.’s
testimony, the parties entered into a plea agreement. Pursuant to the plea agreement, White
agreed to plead guilty to the amended charge of aggravated assault, Idaho Code §§ 19-901(b),
18-905, and the State agreed to dismiss the persistent violator enhancement. The plea agreement
contained the following provision:
                 The State will ask that the Defendant submit to a PSE [psychosexual
         evaluation] at the expense of the Defendant. If the Defendant cannot afford the
         evaluation, the State may seek restitution for the cost of the evaluation. The
         Defendant is free to object to the Court ordering the PSE. If the Court decides to
         order the PSE, the Defendant agrees to submit to the evaluation.
         During the change of plea hearing, the district court invited argument from both parties
regarding the psychosexual evaluation. The State asked that the district court order White to
undergo a psychosexual evaluation prior to sentencing. In response, White argued that it was not
necessary under the facts of his case.       Ultimately, the district court ordered, and White
underwent, the presentence psychosexual evaluation. The psychosexual evaluator concluded that
White was a high risk to re-offend. The district court imposed a determinate five-year sentence.
White timely appeals.

                                                II.
                                           ANALYSIS
         White argues that the district court erred by (1) ordering him to undergo a presentence
psychosexual evaluation, and (2) imposing an excessive sentence.


                                                 2
A.     Psychosexual Evaluation
       White argues that the district court erred in ordering him to undergo a presentence
psychosexual evaluation because I.C. § 18-8316 allows the district court to order a psychosexual
evaluation only where a defendant has been convicted of a crime listed in I.C. § 18-8304 and
aggravated assault is not listed therein. In response, the State argues that (1) White failed to
preserve his claim that the district court lacked statutory authority to order a presentence
psychosexual evaluation, (2) White’s claim is barred by the doctrine of invited error, and
(3) even if this Court considers White’s claim, it fails on the merits.
       The Idaho Supreme Court has made clear that “issues not raised below will not be
considered by this court on appeal, and the parties will be held to the theory upon which the case
was presented to the lower court.” State v. Garcia-Rodriguez, 162 Idaho 271, 275, 396 P.3d 700,
704 (2017) (quoting Heckman Ranches, Inc. v. State, By and Through Dep’t of Pub. Lands, 99
Idaho 793, 799-800, 589 P.2d 540, 546-47 (1979)). Here, White entered into a plea agreement
with the State. Pursuant to the agreement, White was “free to object to the Court ordering the
PSE [psychosexual evaluation].” During the change of plea hearing, the district court asked the
parties “Do either of you want to be heard on the psychosexual?” In response to the district
court’s question, both parties presented their positions regarding the psychosexual evaluation.
White’s argument in its entirety is as follows:
               Your Honor, counsel brought up, and I’ll do it in reverse, brought up a
       conviction for burglary in 2003. The victim in that particular case was extremely
       intoxicated and a lot of her credibility in what she had said to, I think, the police
       and also to people afterwards, it was amended to a burglary charge under the
       circumstances. He doesn’t have a history of that type of activity, and in this
       particular case one of the reasons for the settlement in this case that we came up
       with was that the victim had lied to the police, she lied to the Grand Jury over
       some significant matters, and those were weighed in when we came to our
       resolution of the matter for the aggravated assault, is that I don’t think that this
       case warrants the need for the psychosexual evaluation.
               I believe later on if it were to be determined by either IDOC, if you were
       to sentence him to prison, or if placed on probation, they could order that he have
       that done as a course of probation. So I don’t think it’s necessary in this case.
       White did not argue below, as he does on appeal, that the district court did not have
statutory authority under I.C. §§ 18-8316, 18-8304 to require White to submit to a presentence
psychosexual evaluation. Instead, based on the facts of White’s case and the inconsistencies in
various victims’ testimonies, White argued that it was not necessary to require him to undergo


                                                  3
the psychosexual evaluation as part of sentencing because it could be ordered as a condition of
probation. On appeal, White argues that this issue is preserved because, although his legal
theory has evolved from a fact-based argument to a statutory construction argument, the issue of
whether to grant White’s objection and decline to order the psychosexual evaluation has not
changed. White continues by stating that “because this Court’s decision does not depend on any
factual or legal conclusions made by the district court, Mr. White asserts the issue is preserved
for, and should be addressed on, this appeal.” We are not persuaded by White’s argument.
       The Idaho Supreme Court has specifically addressed this issue and concluded that both
the issue and the party’s position on the issue must be raised before the trial court for it to be
properly preserved for appeal. Garcia-Rodriguez, 162 Idaho at 275, 396 P.3d at 704. White
argued against the district court ordering a psychosexual evaluation because according to White,
it could be ordered as a condition of probation. On appeal, White changed his position on the
issue; he argues that the district court was precluded from ordering a presentence psychosexual
evaluation because the statute authorizing the evaluations, I.C. § 18-8316, states that it applies to
“an offender convicted of any offense listed in section 18-8304, Idaho Code” and aggravated
assault is not a crime listed in I.C. § 18-8304. White’s newly raised argument is not preserved
for appeal. Because White did not properly preserve this argument for appeal, we decline to
address the merits.
B.     Sentence
       White argues that the sentence imposed by the district court was an abuse of discretion
because it was excessive in light of mitigating factors. Specifically, White claims that those
mitigating factors include: his remorse, his acceptance of responsibility, and his supportive
family and friends. The State argues that the district court appropriately considered relevant
mitigating factors when imposing its sentence and thus it did not abuse its 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

                                                 4
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).
        In this case, the maximum period of confinement allowed by statute is five years
imprisonment. See I.C. § 18-906. The district court sentenced White to a determinate term of
five years. The sentence imposed by the district court was not unreasonable upon review of the
facts of the case. The district court expressly considered the facts underlying the original charge,
the arguments made by counsel, and White’s statements in court. In addition, it reviewed the
presentence investigation report and expressly considered the sentencing objectives. The court
also considered White’s extensive criminal history which included at least ten felony
convictions, one of which was a burglary charge that had been amended from rape. Based on
those materials, the district court stated that,
                I am deeply troubled by what I see today in your record. I am deeply
        troubled by the events that led to your arrest here in this case. It appears to me
        quite evident that you went to that hotel room to use drugs to take advantage of
        somebody sexually.
                ....
        And, frankly, based on your record and the concerns that I have of the
        dangerousness that you present to the community, I am disappointed that I have
        only five years to work with . . . because frankly an indeterminate life sentence is
        in my mind appropriate to make sure that you are supervised the rest of your life,
        because I think you are that dangerous.
The district court also expressly considered mitigating factors stating,
        I should make it clear that I have considered the mitigating information presented
        today, the support that you have, and the letters from folks, but I’m just concerned
        enough about your conduct and about your criminal record and the safety of the
        community that I’m going to sentence you to the custody of the Idaho State Board
        of Corrections for a term of five years, with five years fixed.
The district court articulated its reasons for imposing White’s sentence and, based upon a review
of the record, White’s sentence was not unreasonable. We conclude that the sentence that was


                                                   5
imposed on White is adequate to protect societal interests and further the sentencing objectives;
thus, the district court did not abuse its discretion in imposing White’s sentence.
                                                III.
                                         CONCLUSION
       White’s argument that the district court abused its discretion by requiring White to
undergo a presentence psychosexual evaluation is not preserved for appeal. In addition, the
district court did not abuse its discretion by imposing White’s sentence. Therefore, White’s
judgment of conviction and sentence for aggravated assault is affirmed.
       Judge HUSKEY and Judge BRAILSFORD CONCUR.




                                                 6
