                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 47276

STATE OF IDAHO,                                  )
                                                 )    Filed: August 5, 2020
       Plaintiff-Respondent,                     )
                                                 )    Melanie Gagnepain, Clerk
v.                                               )
                                                 )    THIS IS AN UNPUBLISHED
ESIQUIO ANTHONY ALVAREZ,                         )    OPINION AND SHALL NOT
                                                 )    BE CITED AS AUTHORITY
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. Benjamin J. Cluff, District Judge.

       Judgment of conviction, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kacey L. Jones, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Esiquio Anthony Alvarez appeals from the district court’s judgment of conviction for
aggravated assault, Idaho Code §§ 18-901(b), 18-905(b). Alvarez argues the district court erred
by failing to properly instruct the jury. For the reasons set forth below, we affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       The State charged Alvarez with robbery, burglary, and aggravated assault after he entered
the victim’s home with a gun, threatened her and her eleven-year-old-son, and took her phone
and wallet. At trial, the victim testified she heard a pounding on her door around 5:00 a.m. She
recognized Alvarez, who she knew as a result of some involvement with drug activity. She told
him to leave. Alvarez, accompanied by another individual in a mask, did not leave but instead
kicked the victim’s door in and pursued her through the home into her bedroom. The victim’s
eleven-year-old son was in the bed and testified at trial that both men had guns and that he was

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scared because the men had entered his home and pushed his mother onto the bed. The victim
testified Alvarez pointed the gun at her son’s head and told her he was there to make a point
which she believed was the result of her failing to pay him for drugs that she had agreed to sell.
The victim’s son further testified that he believed the men were going to hurt him. Alvarez
argued that the victim’s initial hesitation to admit her drug-related affiliation with him made her
an unreliable witness and further, that the scene was staged and the break-in never actually took
place.
         Before closing argument, the district court held a final jury instruction conference where
the parties were provided with the district court’s prepared instructions. Neither party objected.
However, during deliberation, the jury posed a question for the district court:
         If we decide that a deadly weapon was in the room, does the weapon need to be
         pointed directly at [the victim’s son] to be an assault or is the feeling of imminent
         danger by the child coupled with the mere presence of the gun enough to qualify
         as an assault against the child?
The district court concluded that it would instruct the jury to “decide if the facts of the case
comport with the definition as set forth in [the] instruction.” Alvarez asked for the standard
instruction on the union of act and intent because he believed the jury was not understanding the
element of intent based on its question. The State argued and the district court agreed that the
question seemed to be one of fact, not of intent. The district court rejected Alvarez’s request and
stated: “I don’t think that that’s getting to the intent of the individual . . . who was present in the
room with the gun. I think that it goes more to just whether or not the actions indicate an
assault.”
         The jury received the district court’s clarification and ultimately returned a guilty verdict
for all three counts. Alvarez was sentenced to a unified term of fifteen years with seven years
determinate. Alvarez timely appeals.
                                                  II.
                                    STANDARD OF REVIEW

         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
alleges that a constitutional error occurred at trial and the alleged error was not followed by a
contemporaneous objection, the claim of error must be reviewed under the fundamental error
doctrine. State v. Miller, 165 Idaho 115, 119, 443 P.3d 129, 133 (2019). In order to obtain relief

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under the fundamental error doctrine, the defendant must demonstrate three things. First, the
defendant must show that one or more of the defendant’s unwaived constitutional rights were
violated. Id. Second, the error must be clear and obvious, meaning the record must demonstrate
evidence of the error and evidence as to whether or not trial counsel made a tactical decision in
failing to object.   Id.   Third, the defendant must demonstrate that the error affected the
defendant’s substantial rights, which means the error identified in the first and second prongs of
the test actually affected the outcome of the trial. Id. at 119-20, 443 P.3d at 133-34.
                                                III.
                                           ANALYSIS
       On appeal, Alvarez argues the jury was not properly instructed on the elements of
aggravated assault, which required the State to prove Alvarez: (1) intentionally and unlawfully
threatened by word or act; (2) to do violence upon the victim; (3) with a deadly weapon; (4) had
an apparent ability to do so; and (5) created a well-founded fear in the victim that such violence
was imminent. I.C. §§ 18-901(b), 18-905(b). The State concedes that the instruction was
erroneous, acknowledging the jury was never instructed as to the fourth and fifth elements nor to
the intent element.1 However, the State asserts the inadequate instruction does not rise to the
level of fundamental error.     Specifically, the State argues Alvarez has failed to show his
counsel’s lack of objection to the instruction was not tactical nor how the jury would have
reached a different verdict had a more complete instruction been given. We agree that Alvarez
has failed to demonstrate that his counsel’s objection was not tactical and, thus, need not address
the third prong of the fundamental error analysis.
       Alvarez asserts the district court’s failure to instruct on the assault element of aggravated
assault impermissibly lowered the State’s standard of proof, which violated his right to due
process.   He additionally argues the record clearly reflects the error and that there is no
conceivable strategy which his trial counsel could have been utilizing by failing to object:
“[T]here is no evidence in the record that trial counsel made a strategic or tactical decision in
failing to object.” However, as pointed out by the State, Alvarez must do more than make a
conclusory assertion that the lack of an objection was not tactical. In determining whether the


1
       To properly convict for aggravated assault, the jury must find the defendant intended to
make the threat, not simply the intent to commit the act. State v. Larson, 158 Idaho 130, 136,
344 P.3d 910, 916 (Ct. App. 2014).
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lack of an objection by trial counsel was tactical, the court begins with the strong presumption
that counsel was competent and trial tactics were based on sound legal strategy. State v. Dunlap,
155 Idaho 345, 383, 313 P.3d 1, 39 (2013).           The appellate court does not review the
presumptively strategic or tactical decisions “unless those decisions are based on inadequate
preparation, ignorance of the relevant law, or other shortcomings capable of objective review.”
Johnson v. State, 156 Idaho 7, 11, 319, P.3d 491, 495 (2014) (internal quotation omitted). A
defendant’s opinion that the absence of an objection was not tactical is not enough to overcome
the presumption of competence. Miller, 165 Idaho at 119, 443 P.3d at 133. Rather, there must
be actual evidence in the record that demonstrates the lack of objection was not tactical; in
essence, rebutting the presumption of competence. Id.
       Based on the strong presumption that trial counsel was competent and his behaviors were
the result of strategic or tactical decisions, Alvarez must be able to point to evidence in the
record that affirmatively establishes the opposite in order to meet prong two of the fundamental
error analysis. Alvarez has failed to meet this burden where he has pointed to no evidence
suggesting that the failure to object was not tactical. To the contrary, the State suggests the
record supports that the decision may have been tactical, noting that Alvarez’s defense strategy
rested upon the contention that the assault never happened at all and that it was staged by the
victim. Focusing on the credibility of the victims and not the elements of assault, Alvarez’s
counsel may have been strategically avoiding any focus on the elements in favor of discrediting
the victims’ testimony. Because Alvarez points to no evidence in the record that overcomes the
presumption that trial counsel’s silence was strategic, Alvarez fails to meet the burden of
establishing clear error in the record under the second prong of the fundamental error analysis.
                                               IV.
                                        CONCLUSION
       Because Alvarez failed to demonstrate his trial counsel’s decision not to object to an
erroneous jury instruction was not tactical, his fundamental error argument fails. Accordingly,
we affirm the judgment of conviction.
       Chief Judge HUSKEY and Judge BRAILSFORD CONCUR.




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