               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39870

STATE OF IDAHO,                                   )     2013 Unpublished Opinion No. 638A
                                                  )
       Plaintiff-Respondent,                      )     Filed: September 4, 2013
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
RYAN LEE JOHNSON,                                 )     AMENDED OPINION THE
                                                  )     COURT’S PRIOR OPINION
       Defendant-Appellant.                       )     DATED AUGUST 27, 2013
                                                  )     IS HEREBY AMENDED
                                                  )
                                                  )     THIS IS AN UNPUBLISHED
                                                  )     OPINION AND SHALL NOT
                                                  )     BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Cheri C. Copsey, District Judge. Hon. Michael E. Wetherell,
       District Judge.

       Judgment of conviction for domestic battery in the presence of a child, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy
       Appellate Public Defender, Boise, for appellant. Ben Patrick McGreevy argued.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent. Nicole L. Schafer argued.
                 ________________________________________________
WALTERS, Judge Pro Tem
       Ryan Lee Johnson appeals from his conviction and sentence for domestic battery with
traumatic injury in the presence of a child. Specifically, Johnson challenges the district court’s
order denying his request for a unanimity instruction and alleges that the district court abused its
discretion by imposing an excessive sentence. We affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       On October 5, 2011, Johnson and his ex-wife, Melissa, were involved in a domestic
dispute. The alleged dispute occurred at Melissa’s residence and involved physical altercations


                                                 1
that occurred in multiple rooms of the house. Johnson and Melissa’s son, C.J., was present
during the dispute. Johnson was charged with domestic battery with traumatic injury in the
presence of a child, Idaho Code §§ 18-903(a), 18-918(2), 18-918(4), and attempted strangulation,
I.C. § 18-923. 1 With respect to the domestic battery charge, the information alleged that Johnson
used violence upon Melissa by “restraining her, throwing her down, slapping her in the face,
hitting her on the head, and/or by throwing her into a bathtub.”
       Prior to trial, Johnson requested that the district court provide the jury with a unanimity
instruction for the domestic battery charge and instruct the jury that it must unanimously
determine which underlying battery constituted the crime of domestic battery. The district court
denied the request. Johnson, Melissa, and their son, C.J., testified at trial as to their individual
recollection of the events that occurred on October 5. Each testimony varied from the others as
to the nature of the dispute and the order of the events. Specifically, Melissa testified that
Johnson was the aggressor and physically attacked her, while Johnson testified that Melissa
attacked him and that his actions were done in self-defense. However, each person testified that
the alleged physical altercations occurred in different rooms throughout the house. Following
the presentation of evidence, the district court provided the jury with an instruction that stated:
               In order for the defendant to be guilty of Domestic Battery with Traumatic
       Injury in the Presence of a Child, as charged in Count I, the state must prove each
       of the following:
               ....
               3. the defendant [Johnson] committed a battery upon [Melissa] by
       restraining her, throwing her down, slapping her in the face, hitting her on the
       head, and/or by throwing her into a bathtub;

       The jury convicted Johnson of domestic battery in the presence of a child and acquitted
him of the attempted strangulation charge. The district court imposed a unified term of fifteen
years with three years determinate. Johnson timely appeals.




1
        Johnson was also charged with another count of domestic violence in the presence of a
child for an incident that occurred on September 26, 2011. The jury convicted him of a lesser
included charge of misdemeanor domestic battery and he was sentenced to a six-month
concurrent jail sentence. Johnson does not challenge his misdemeanor domestic battery
conviction and sentence in this appeal.


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                                                  II.
                                               ANALYSIS
        Johnson claims: (1) the district court erred by denying his request for a unanimity jury
instruction; and (2) the district court abused its discretion by imposing an excessive sentence in
light of the mitigating factors that exist.2
A.      Unanimity Jury Instruction
        The question 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). “An error in jury instructions only constitutes reversible
error when the instruction misled the jury or prejudiced the party challenging the instruction.”
Severson, 147 Idaho at 710, 215 P.3d at 430.
        “Under Idaho law, a trial court is required to instruct the jury that it must unanimously
agree on the defendant’s guilt in order to convict the defendant of a crime.” Id. at 711, 215 P.3d
at 431. An instruction that the jury must unanimously agree on the facts giving rise to the
offense is generally not required. Id. However, a unanimity instruction is necessary “when the
defendant commits several acts, each of which would independently support a conviction for the
crime charged.” Id. Thus, the question that arises is whether the underlying conflicts constituted
several acts of criminal conduct or one continuous course of criminal conduct. “Whether a
course of criminal conduct constitutes a single or multiple offenses depends on ‘whether or not
the conduct constituted separate, distinct and independent crimes’ and ‘requires an inquiry into
the circumstances of the conduct and consideration of the intent and objective of the actor.’”
Miller v. State, 135 Idaho 261, 267, 16 P.3d 937, 943 (Ct. App. 2000) (quoting State v. Bush, 131
Idaho 22, 33-34, 951 P.2d 1249, 1260-61 (1997)).
        In the instant case, evidence was presented at trial indicating that a conflict occurred at
Melissa’s residence. At trial, Melissa testified that the argument started in her bedroom and


2
        The Honorable Cheri C. Copsey made the determination, prior to trial, that a unanimity
instruction was inapplicable. Judge Copsey presided over the sentencing hearing and imposed
Johnson’s sentence. The Honorable Michael E. Wetherell entered the judgment of conviction on
behalf of Judge Copsey.

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continued throughout multiple rooms in the house. According to Melissa, the fighting started
when she was dressing for work in her bedroom and Johnson entered the room and started
yelling at her. She then left the bedroom and went into the bathroom. Johnson followed her into
the bathroom, pushed her into the bathtub, threw her around, and then left the bathroom and went
into the dining room. Melissa returned to the bedroom, but Johnson entered again and pushed
her to the floor, pushed her to the bed, pinned her down, and slapped her in the face. Johnson
released Melissa after Melissa grabbed him in the private area. Johnson then took a cellular
phone from Melissa and went into the living room. Melissa followed him into the living room
asking for the phone. Johnson pushed her to the ground and pinned her down. Melissa bit
Johnson on the arm and he released her. Melissa gathered some belongings and began to leave
the residence when Johnson grabbed her, put his hands on her throat, and strangled her for five
seconds. Melissa and C.J. left the residence when Johnson released her throat.
       Johnson testified that Melissa attacked him and that his actions were in self-defense.
According to Johnson, the two were arguing in the bathroom when Melissa began swinging at
him. He deflected her blows and she tripped into the bathtub. He left the bathroom and went
into the dining room. Melissa followed him and struck him with a wind chime. He grabbed her
by the arms and tried to subdue her against the wall. Thereafter, he let go and went into the
living room and sat on the couch. Melissa followed him into the living room and began
swinging at him. He pushed her back and she tripped over the coffee table and fell to the
ground. Johnson then pinned her to the ground but released her when she bit him and grabbed
him in the private area. Johnson then went into the kitchen and started smoking. He tried to talk
to C.J. but Melissa blocked his path and pushed him. He then grabbed her, pushed her against
the wall, but let go when she spit in his face. Melissa then left the residence.
       C.J. testified that Johnson went into the bedroom and began yelling at Melissa. Then
Johnson and Melissa went into the kitchen and then the living room, continually yelling at each
other. C.J. testified that Johnson pushed Melissa, Melissa pushed him back, and then Johnson
pushed her again causing her to fall to the ground. Johnson then pinned Melissa to the ground.
Thereafter, C.J. and Melissa left the residence and Johnson spit on Melissa as they were leaving.
       Prior to the trial, Johnson requested a unanimity instruction be included in the jury
instructions for the crime of domestic violence in the presence of a child. The district court



                                                  4
denied the request, finding that the underlying acts were not separate and distinct acts but one
continual altercation.
       On appeal, Johnson argues that the district court erred by failing to instruct the jury that it
“must unanimously agree on which of the alleged batteries constituted the alleged domestic
violence.” He argues that the evidence presented at trial described four separate conflicts that
occurred on October 5.      He alleges that the four conflicts were separated by “discernible
intervening time periods, where both [the victim] and [Johnson] went into different rooms and
engaged in other behaviors.” Without a unanimity instruction, Johnson claims that some jurors
could have convicted him based on one conflict, while other jurors could have convicted him
based on a different conflict; thus, preventing the jury from arriving at a unanimous conclusion.
       Johnson points to three cases to support his claim. First, Johnson points to this Court’s
decision in Miller. In that case, Miller was charged with one count alleging manual-genital
contact. The victim testified of six specific incidents over a twenty-nine-month period where
Miller committed manual-genital contact.        This Court determined that each incident “was
separated by an indeterminate period of time, was of brief duration, and involved unique
circumstances.” Miller, 135 Idaho at 267, 16 P.3d at 943. Thus, we held that Miller committed
multiple offenses and a unanimity instruction was required. 3 Id. Based on this holding, Johnson
argues that Miller stands for the proposition that where the defendant could commit the alleged
crime multiple times, the jury must be unanimous in their determination of the defendant’s actus
reas if the conduct constituted separate, distinct, and independent crimes. Therefore, he asserts
that the instant case required a unanimity instruction, as his underlying actions constituted
“separate, distinct, alleged batteries, with discernible time periods in between.”
       Johnson also points to two Idaho Supreme Court cases for support. In State v. Grinolds,
121 Idaho 673, 827 P.2d 686 (1992), the defendant asserted that his protection against double
jeopardy was violated by reason of being charged with two acts of rape. In that case, Grinolds
had sexual intercourse with the victim in a bedroom and then went into the living room for a
period of time. Thereafter, Grinolds re-entered the bedroom and engaged in another act of
sexual intercourse with the victim. The Supreme Court determined, based on the facts in the


3
       However, this Court also determined that the lack of a unanimity instruction resulted in
harmless error. Miller, 135 Idaho at 268, 16 P.3d at 944.

                                                 5
record indicating that Grinolds engaged in two separate acts of sexual intercourse separated by
an unspecified amount of time, that there were two separate and distinct acts of rape for double
jeopardy purposes. Id. at 675, 827 P.2d at 688.
       In Bush, the defendant asserted that his protection against double jeopardy was violated
because he was charged with lewd conduct with a minor and an infamous crime against nature.
In that case, Bush entered a home at night and forcibly performed fellatio on a boy. Thereafter,
he forced the boy on a couch, tied his arms behind his back, tied a t-shirt around his face, and
again performed fellatio on the boy. The Supreme Court held that the facts demonstrated that the
incidents were two separate and distinct acts, with other events occurring between the acts.
Bush, 131 Idaho at 34, 951 P.2d at 1261.
       Based on the foregoing cases, Johnson argues that “where one crime is alleged to have
been committed by alternative means and where the defendant is alleged to have committed
separate and distinct acts, Idaho law requires unanimity even if the acts are alleged in a single
count.” Johnson is correct that the aforementioned cases involved discernible time differences in
between the alleged acts that contributed to a finding of multiple criminal conduct. In Miller, the
incidents occurred over a two-year period. In Grinolds, the incidents occurred with a period of
time in between. In Bush, the incidents occurred with a period of time in between in which the
perpetrator placed the victim on a couch, tied his hands with a cord, and tied a shirt over his face.
However, a similar scenario is not present in the instant case. Here, the underlying acts were not
separated by discernible time differences. Johnson argues that the act of moving to a different
room is sufficient to break up the argument into multiple criminal episodes. We disagree. The
record demonstrates that Johnson and Melissa were arguing and fighting as they moved from
room to room. C.J. testified that he heard “yelling” and witnessed fighting as Johnson and
Melissa moved from the bedroom to the kitchen to the living room. Further, both Johnson and
Melissa testified that after a physical altercation in one room, Melissa followed Johnson into the
living room where another physical altercation immediately occurred. Additionally, Melissa
testified that Johnson followed her from the bedroom to the bathroom where he allegedly threw
her into the bathtub. Therefore, based on the record, we conclude that the underlying acts were
not separated by discernible time periods, but instead occurred immediately from one room to
the next; thus, the entire altercation constituted one continual course of criminal conduct.



                                                  6
        This conclusion is consistent with our recent decision in State v. Moffat, 154 Idaho 529,
300 P.3d 61 (Ct. App. 2013). In that case, we stated that “it is generally held that when a person
commits multiple acts against the same victim during a single criminal episode and each act
could independently support a conviction for the same offense, for purposes of double jeopardy
the ‘offense’ is typically the episode, not each individual act.” Id. at 533, 300 P.3d at 65. In that
case, Moffat was charged with domestic battery and attempted strangulation following a dispute
wherein he grabbed the victim by the hair, grabbed her around the throat, threw her around the
room, pushed her into objects, and pushed her to the ground. We held that Moffat’s actions
constituted one offense and stated that:
       an attempt to separate Moffat’s grabbing of his girlfriend’s hair and throwing her
       around the room and into objects and pushing her to the ground from grabbing her
       throat during the same dispute is an impermissible attempt . . . to divide a single
       crime into a series of temporal or spatial units to avoid double jeopardy
       limitations.

Id. at 534, 300 P.3d at 66.

       Consistent with our holding in Moffat, we conclude that Johnson’s actions constitute one
course of criminal conduct. Thus, the district court did not err in denying Johnson’s request for a
unanimity instruction.
B.     Excessive Sentence
       Johnson claims that the district court erred by giving him an excessive sentence. 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


                                                 7
the offense, the character of the offender, and the protection of 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 the instant case, the State requested that Johnson receive a unified term of fifteen years
with four years determinate for his conviction of domestic battery with traumatic injury in the
presence of a child. Johnson requested a period of retained jurisdiction. As discussed above, the
district court sentenced Johnson to a unified term of fifteen years with three years determinate.
       Johnson claims that the district court abused its discretion and imposed an excessive
sentence. Specifically, Johnson asserts that the district court failed to consider several mitigating
factors and that the district court improperly focused on Johnson’s acquitted charge of attempted
strangulation.
       First, Johnson argues that the district court failed to adequately consider the mitigating
factors of Johnson’s difficult upbringing, his remorse, his willingness to accept responsibility,
and his willingness to receive treatment. At the sentencing hearing, defense counsel told the
court that Johnson, as a young child, witnessed the severe abuse of his stepbrother. Johnson was
also introduced to drugs and alcohol at a young age.             Additionally, in the presentence
investigation report (PSI), Johnson stated that he was responsible for the domestic violence and
recognized that he needed treatment. However, at the sentencing hearing, Johnson told the court
that “I never denied any kind of physical contact during the altercation, but I thought that, you
know, parts of it was righteous.”
       The district court, in pronouncing Johnson’s sentence, recognized that Johnson witnessed
child abuse as a child, but stated that “[p]eople who observe domestic violence are just as likely
as [sic] to avoid domestic violence as they are to commit it.” The district court also considered
Johnson’s past criminal history and concluded that “a lesser sentence would depreciate the
seriousness of the crime.” Further, the court considered the PSI, which stated that Johnson was a
“high risk for reoffending,” and also stated that individuals who tested at Johnson’s level
reoffended 74 percent of the time. Additionally, the district court pointed out that Johnson
already went through prior treatments, including two drug courts and a period of retained
jurisdiction. Finally, the court admonished Johnson for his “righteous” comment and stated that
“[t]here is no evidence that any part of this was righteous.”

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       Based on the foregoing, we conclude that the district court properly considered mitigating
factors. The district court considered Johnson’s childhood, his alleged remorse, his acceptance
of responsibility, and his willingness to participate in treatment. However, the district court also
considered the protection of society and the goals of deterrence, rehabilitation, and retribution
and concluded that a sentence of incarceration was necessary in order to achieve the objectives
and goals of sentencing.
       Second, Johnson argues that the district court failed to apply the due caution standard
required of the court when considering acquitted conduct, resulting in an abuse of discretion.
During the trial, Melissa testified that Johnson “[p]ut his hands on [her] throat and squeezed.”
However, C.J. testified that he did not see anything happen to Melissa’s neck. During the
sentencing hearing, defense counsel argued that the jury’s acquittal of the attempted
strangulation charge demonstrated that the jury discredited Melissa’s testimony and believed
C.J.’s testimony. Defense counsel then implied that Melissa likely either provoked the attack or
the fight was a “mutual combat situation.” Following counsel’s remarks, the district court
expressed its doubt that the attempted strangulation acquittal was a result of the jury discrediting
Melissa’s testimony and solely relying on C.J.’s testimony. The district court stated:
               With regard to the attempted strangulation, I have only had one conviction
       for an attempted strangulation. Having listened to the testimony, I doubt very
       seriously it was because of [C.J.’s] testimony. It’s the--I have problems with the
       attempted strangulation statute. Juries have problems with it. They expect that
       there’s going to be much more evidence than there ever is in an attempted
       strangulation. In fact, the--not just the police reports, but also the reports from the
       hospital indicate there were marks on her throat which substantiated her
       testimony. So I don’t think it had anything to do with [C.J.’s] testimony at all.

The district court further stated that “there was physical evidence to at least suggest that at least
some portion of [Melissa’s] version is correct.” 4
       Johnson contends that the district court abused its discretion by believing that the jury
only acquitted Johnson on the attempted strangulation charge because of a misunderstanding of
the jury instructions. Johnson asserts that this conclusion “demonstrates a failure to apply the



4
       The district court also discussed and considered the similarity between Melissa’s version
of events and a prior victim’s claim of attempted strangulation by Johnson.


                                                 9
due caution required of a Court when considering acquitted conduct.” 5 We disagree. The
district court did not focus on the acquitted charge, but only expressed problems that juries have
with attempted strangulation charges. Further, the district court only did so to explain its
conclusion that the jury could have believed Melissa’s testimony and still produced an acquittal
for attempted strangulation.
       Moreover, the Idaho Supreme Court has previously stated that:
       There should be no limitation placed on the information presented to the court
       regarding the background, character, and conduct of the defendant being
       sentenced. In State v. Johnson, 101 Idaho 581, 583, 618 P.2d 759, 761 (1980), we
       quoted with approval from Williams v. New York, 337 U.S. 241, 247 (1949), as
       follows: “[M]odern concepts individualizing punishment have made it all the
       more necessary that a sentencing judge not be denied an opportunity to obtain
       pertinent information by a requirement of rigid adherence to restrictive rules of
       evidence properly applicable to the trial.” Information that a sentencing court can
       rely upon includes a defendant’s past criminal behavior that resulted in a
       conviction, Witte v. United States, 515 U.S. 389, 397 (1995); the defendant’s prior
       uncharged criminal conduct, id.; and the defendant’s prior conduct for which he
       was tried and acquitted.

State v. Flowers, 150 Idaho 568, 574, 249 P.3d 367, 373 (2011). Therefore, it was appropriate
for the district court to consider the acquittal of Johnson’s attempted strangulation charge. Based
on the foregoing, we conclude that Johnson has failed to show that the district court abused its
discretion in pronouncing his sentence.
                                               III.
                                          CONCLUSION
       Johnson failed to demonstrate that the district court erred by denying his request for a
unanimity instruction. Additionally, Johnson failed to show that the district court abused its
discretion by imposing an excessive sentence. Accordingly, Johnson’s judgment of conviction
and sentence for domestic battery with traumatic injury in the presence of a child are affirmed.
       Judge LANSING and Judge MELANSON CONCUR.



5
       Johnson asserts that, at a minimum, the district court should have applied the “due
caution” standard when considering acquitted conduct as an aggravating factor in sentencing.
See State v. Wickel, 126 Idaho 578, 581, 887 P.2d 1085, 1088 (Ct. App. 1994) (“A sentencing
court may, with due caution, consider the existence of defendant’s alleged criminal activity for
which no charges have been filed, or where charges have been dismissed.”).

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