               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 39313

STATE OF IDAHO,                                  )     2013 Unpublished Opinion No. 627
                                                 )
       Plaintiff-Respondent,                     )     Filed: August 14, 2013
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
KEITH PHILLIP SIGLER,                            )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
       Defendant-Appellant.                      )     BE CITED AS AUTHORITY
                                                 )

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

       Judgment of conviction, affirmed; order denying Idaho Criminal Rule 35 motion
       for reduction of sentence, affirmed.

       David J. Smethers of Sallaz & Gatewood, PLLC, Boise, for appellant.

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

PERRY, Judge Pro Tem
       Keith Phillip Sigler appeals from his judgment of conviction for possession of material
sexually exploiting a child under the age of eighteen and sexual battery of a minor child sixteen
or seventeen years of age. Specifically, Sigler asserts that he was denied a fair trial due to the
State’s ongoing violations of the rules of evidence, rising to the level of prosecutorial
misconduct. Sigler also alleges that the district court erred in denying both his motion for a
mistrial, based on witness testimony regarding matters that were to be excluded from the jury,
and his motion for a judgment of acquittal, asserting the evidence was insufficient to show he
committed the acts for the purpose of gratifying a sexual desire. Sigler additionally appeals from
the district court’s denial of his Idaho Criminal Rule 35 motion for a reduction of his sentences.
For the reasons set forth below, we affirm.




                                                1
                                                I.
                                 FACTS AND PROCEDURE
       Sigler was the owner of a computer sales and service company in Idaho. During the
summer of 2007, Sigler and one of his employees met a sixteen-year-old girl whom they
encouraged to apply for work at the company. The girl later contacted Sigler, who hired her to
do administrative work such as scanning documents into an electronic backup storage system
and assisting other employees.
       After being employed for a while, the girl asked Sigler if she could start cleaning the
office to make more money. Sigler declined that offer, but offered to pay her money to be
photographed. The girl inquired as to what type of photographs Sigler meant, to which he
explained they would involve her taking off some of her clothes. She expressed discomfort with
other people seeing such photographs, but Sigler assured her he would be the only person to
view them. The girl had a digital camera she had brought to work, which Sigler used to take
photographs of the girl on at least two occasions. On each occasion, Sigler asked the girl to
remove articles of clothing to where she was only in her underwear.             When taking the
photographs, Sigler directed the girl where to sit or stand and how to pose.           Sigler then
transferred the digital photographs from the camera’s memory card to a company computer that
was connected to the company’s backup system. Sigler paid the girl between $100 and $150 in
cash for the photographs on each occasion. While employed by Sigler, the girl became pregnant.
Allegedly because she was concerned about finances and being able to support herself and
soon-to-be child, the girl used company credit cards to make personal purchases, took roughly
$2000 in cash from the company safe to which she had access, and stole a company laptop that
she later returned. Sigler confronted the girl on each occasion, and she eventually admitted to all
of the misconduct. There were allegations that Sigler agreed not to report the girl’s criminal
conduct in exchange for her paricipation in sexual conduct, including being photographed and
performing oral sex on Sigler. Both photography sessions took place after the girl used the
company credit cards and took the cash from the safe, but prior to her taking the company laptop.
There was conflicting testimony as to whether the girl quit or was fired from Sigler’s
employment following the incident with the laptop.
       In the months that followed, Sigler showed the topless photographs of the girl to other
people who worked in his office. After receiving a tip and interviewing former coworkers that


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had seen or knew of the photographs, police secured and executed a search warrant at Sigler’s
business, which revealed the photographs of the girl on computer drives in the office. Police also
interviewed the girl about her relationship with Sigler. Based on the investigation, the State
charged Sigler with eight felony counts after indictment by a grand jury: Count I, possession of
material sexually exploiting a child; Counts II - VII, sexual battery of a minor; and Count VIII,
procurement of prostitution. Sigler pled not guilty to all counts. After a four-day jury trial, the
jury found Sigler guilty on the first and second counts, possession of material sexually exploiting
a child, Idaho Code § 18-1507, and sexual battery of a minor, Idaho Code § 18-1508A. Of the
remaining six counts, the jury returned two verdicts of not guilty and was deadlocked on the
remaining four counts.
       The district court ordered a presentence investigation report and a psychosexual
evaluation. The court sentenced Sigler to a unified ten-year term, with five years determinate,
for the possession of material sexually exploiting a child conviction and a concurrent, unified
twenty-year term, with ten years determinate, for the sexual battery of a minor conviction.
However, the court retained jurisdiction and, at the end of the period of retained jurisdiction,
placed Sigler on probation for a period of twelve years. Sigler appealed and also filed an Idaho
Criminal Rule 35 motion for a reduction of his sentences, which the district court denied. Sigler
amended his notice of appeal to include the denial of the Rule 35 motion and presents four issues
to this Court: whether Sigler was denied the right to a fair trial because of numerous violations
by the State of the rules of evidence, rising to the level of prosecutorial misconduct; whether the
district court erred in denying Sigler’s motion for a mistrial; whether the district court erred in
denying Sigler’s motion for a judgment of acquittal; and whether the district court abused its
discretion in denying Sigler’s Rule 35 motion.
                                                  II.
                                            ANALYSIS
A.     Right to a Fair Trial
       Sigler argues he was denied the right to a fair trial because the prosecutor repeatedly
violated the rules of evidence, resulting in 115 defense objections over the course of the four-day
trial, many of which were sustained. Based on these objections, Sigler asserts the multiple
violations of the rules of evidence eventually rose to the level of prosecutorial misconduct and
“[a]t some point” violated his right to due process and a fair trial.


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       The State asserts that Sigler is required to meet the fundamental error standard because he
did not specifically assert to the district court that his due process rights were violated. 1 The
State further argues that, while multiple trial errors--harmless in themselves--can be aggregated
under principles of due process to determine the fairness of a trial, Sigler cites no authority that
multiple correct rulings by the district court may be aggregated under the auspice of
prosecutorial misconduct to show that the trial was unfair.
       Here, Sigler bases his argument on a series of objections he made to witness testimony
that were ruled upon by the district court. Sigler’s assertion that an accumulation of these
objected-to errors violated his rights to due process and a fair trial does not negate the fact that
each alleged error was objected to before the district court. Therefore, we will address whether
the numerous alleged violations of the rules of evidence by the prosecutor constituted
misconduct and resulted in a denial of due process or a fair trial.
       A defendant is entitled to a fair trial, but not a perfect trial. State v. Enno, 119 Idaho 392,
408, 807 P.2d 610, 626 (1991); State v. Estes, 111 Idaho 423, 428, 725 P.2d 128, 133 (1986).
Our system of criminal justice is adversarial in nature and the prosecutor is expected to be
diligent and leave no stone unturned, but the prosecutor is nevertheless expected and required to
be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). In reviewing allegations
of prosecutorial misconduct, we must keep in mind the realities of trial. Id. When there has
been a contemporaneous objection, we determine factually if there was prosecutorial
misconduct, then we determine whether the error was harmless. Id.; see State v. Hodges, 105
Idaho 588, 592, 671 P.2d 1051, 1055 (1983); State v. Phillips, 144 Idaho 82, 88, 156 P.3d 583,
589 (Ct. App. 2007). A conviction will not be set aside for small errors or defects that have
little, if any, likelihood of having changed the results of the trial. State v. Pecor, 132 Idaho 359,
367-68, 972 P.2d 737, 745-46 (Ct. App. 1998). Where prosecutorial misconduct is shown, the
test for harmless error is whether the appellate court can conclude, beyond a reasonable doubt,
that the result of the trial would not have been different absent the misconduct. Id. at 368, 972
P.2d at 746.
       Sigler alleges he made no less than 115 objections during the State’s presentation of
evidence; the district court sustained eighty-one of these objections, and Sigler asserts it is

1
        The fundamental error standard applies to unobjected to errors before the district court.
State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010).

                                                  4
unclear from the record how the judge ruled on at least four of the objections. Sigler further
argues that the district court was forced to abandon its role as a neutral arbiter when it advised
the State how to proceed in regards to some of the objections or explained its rulings. Finally,
Sigler asserts the district court erroneously ruled on many of the objections that were not
sustained.
       We have reviewed the entire jury trial transcript and conclude Sigler has failed to show
prosecutorial misconduct. Most of defense counsel’s objections involved testimony that counsel
argued was hearsay or alleged the prosecutor’s use of leading questions. In various instances,
the district court ruled that testimony regarding out-of-court statements was offered for a
permissible purpose. That is, the testimony was not inadmissible hearsay because it was not
offered for the truth of the matter asserted. Idaho Rule of Evidence 801. The district court gave
the jury an instruction that the testimony was to be considered for a limited purpose when
appropriate to do so. In many other instances, the district court sustained the hearsay objections,
limiting the witness’s testimony. The fact that the prosecutor made appropriate arguments or
asked a question in support of admitting such evidence--whether or not the district court
agreed--is not misconduct, and to hold that it is would unduly limit the prosecutor’s ability to be
a zealous advocate for the State.
       Sigler also made numerous objections alleging error by the prosecutor in asking leading
questions.   A prosecutor may commit misconduct if a leading question itself provides
inadmissible information. See State v. Frauenberger, 154 Idaho 294, 302, 297 P.3d 257, 265
(Ct. App. 2013). However, we do not find that any information provided in the prosecutor’s
leading questions was inadmissible or otherwise harmful.
       Finally, Sigler fails to show that the district court, in explaining its ruling, was forced to
abandon its neutral role. The district court did not go so far as to instruct the State on how to try
the case and, when appropriate, the district court took matters up in a sidebar or out of the
presence of the jury. In short, Sigler fails to show that the sheer number of objections and the
bases for the rulings rose to the level of misconduct or deprived him of a fair trial. In fact,
having reviewed many of the defense objections sustained by the district court, this Court has
determined it would have been proper to overrule them. Neither Sigler’s disagreement with the
rulings nor defense counsel’s tactical decision in making numerous objections, many of which




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we would find nonmeritorious, provide a basis for concluding that the prosecutor committed
misconduct or that Sigler was deprived of due process and a fair trial.
B.     Motion for Mistrial
       Sigler asserts the district court erred in denying his motion for a mistrial. Defense
counsel made the motion in response to witness testimony that was outside the scope of a
previous ruling by the district court limiting particular evidence. In criminal cases, a motion for
a mistrial is governed by Idaho Criminal Rule 29.1. A “mistrial may be declared upon motion of
the defendant, when there occurs during the trial an error or legal defect in the proceedings, or
conduct inside or outside the courtroom, which is prejudicial to the defendant and deprives the
defendant of a fair trial.” I.C.R. 29.1(a). Our standard for reviewing a district court’s denial of a
motion for mistrial is well established:
       [T]he question on appeal is not whether the trial judge reasonably exercised his
       discretion in light of circumstances existing when the mistrial motion was made.
       Rather, the question must be whether the event which precipitated the motion for
       mistrial represented reversible error when viewed in the context of the full record.
       Thus, where a motion for mistrial has been denied in a criminal case, the “abuse
       of discretion” standard is a misnomer. The standard, more accurately stated, is
       one of reversible error. Our focus is upon the continuing impact on the trial of the
       incident that triggered the mistrial motion. The trial judge’s refusal to declare a
       mistrial will be disturbed only if that incident, viewed retrospectively, constituted
       reversible error.
State v. Urquhart, 105 Idaho 92, 95, 665 P.3d 1102, 1105 (Ct. App. 1983); accord State v.
Norton, 151 Idaho 176, 192-93, 254 P.3d 77, 93-94 (Ct. App. 2011).
       In this case, the State wanted to introduce evidence of photographs of Sigler’s wife in
various states of undress that were found in the same location as photographs of the girl on hard
drives of computers seized from the company. Essentially, the evidence was to be offered to
establish time frames, as certain witnesses saw these photographs at the same time they saw
photographs of the girl. After objection by defense counsel, the district court ruled that the
witnesses could testify to seeing the photographs for purposes of establishing time frames, but
could not testify that Sigler’s wife was nude, partially dressed, in lingerie, or suggest in any other
way that the photographs were sexual in nature.
       One of the State’s witnesses, upon questioning regarding this evidence, responded that
Sigler wanted to show him “[p]hotographs of [Sigler’s] wife in a negligee.” Defense counsel
objected and asked to take the matter up outside of the jury’s presence. The district court


                                                  6
sustained the objection and then gave a curative instruction: “The Court gave a specific ruling
on this. The jury will disregard the answer of the witness with regard to this topic.” The district
court then excused the jury. After being allowed to question the witness outside the presence of
the jury in regards to being advised of the ruling, defense counsel asked the district court to
declare a mistrial. The district court allowed the prosecutor to also examine the witness. The
witness indicated that the prosecutor did, in fact, advise him as to the ruling disallowing the
witness to provide any details of the photographs other than that they were of Sigler’s wife. The
issue arose as to whether the witness ever actually saw the photographs, and the prosecutor
argued that she only intended to use the witness to establish that Sigler mentioned the
photographs of his wife--which Sigler intended to show the witness--and at the same time
mentioned having photographs of the girl. If not granted a mistrial, defense counsel asked that
the witness not be allowed to testify any further because the witness had not actually seen the
photographs. The district court ruled that the witness could testify, but only as to the facts of a
conversation he had with Sigler, who else was in the room at that time, that Sigler made the
statement that he had photographs of the girl on his computer, and that the witness did not look
at those photographs. The district court further stated:
        I am not going to take any chance that we have anything again. If this comes up
        again through another witness, I will declare a mistrial. And that will be the
        limitation placed on this witness’s testimony.
                I have already instructed the jury to disregard the statement he made. I am
        not going to advise the jury to disregard it a second time because it merely calls
        more attention to it.
                And I am not going to grant the mistrial because I believe that the error is
        not a sufficient basis to grant a mistrial. But should it happen again, this Court
        will grant a mistrial . . . .
        Sigler argues that the district court erred in denying the motion for a mistrial for three
reasons. First, Sigler asserts the evidence that Sigler showed photographs of his partially-nude
wife to other males was highly prejudicial, particularly in light of the charge that Sigler showed
partially-nude photographs of an underage girl to other males and the fact that the jury convicted
Sigler on two of the counts involving Sigler showing photographs to others. Second, Sigler
contends the mistrial should have been granted because the State violated the district court’s
evidentiary ruling by failing to make the ruling clear to its witness. Underpinning this argument,
Sigler asserts the district court also erred in allowing the State to lead its witness in order to abide
by the district court’s ruling limiting the evidence. Third, Sigler believes the district court should


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have granted the mistrial because the witness was not competent to testify in regards to the
photographs owing to the fact that the witness did not actually see the photographs.
       The State responds that the trial was not rendered unfair by the single sentence of
testimony on which Sigler relies. Moreover, the State argues the response about Sigler’s wife in
a negligee was not highly prejudicial because there was no evidence that Sigler violated his
wife’s privacy or was supposed to keep those photographs confidential. Next, the State points
out that Sigler was not charged with showing the photographs of the girl to other males; the State
charged Sigler with possession of and taking the photographs. Further, in the context of a
mistrial, the focus is not the prosecutor’s actions and whether she did or did not properly advise
the witnesses of the district court’s ruling regarding the photographs of Sigler’s wife as evidence,
but rather, whether the statement in the context of the full record rendered the trial unfair.
Finally, the competency of the witness to testify is a separate question from whether the
statement about Sigler’s wife in a negligee made the trial fundamentally unfair.
       The admission of improper evidence does not automatically require the declaration of a
mistrial. State v. Grantham, 146 Idaho 490, 498, 198 P.3d 128, 136 (Ct. App. 2008). Where
improper testimony is introduced into a trial and the trial court promptly instructs the jury to
disregard such evidence, it is ordinarily presumed that the jury obeyed the court’s instruction. Id.
The reviewing court may consider this as a factor in determining whether the error was
reversible and whether the district court should have granted a mistrial. Norton, 151 Idaho at
193, 254 P.3d at 94. In addition, we also consider the strength of the evidence against the
defendant and the significance of the improper testimony. State v. Watkins, 152 Idaho 764, 768,
274 P.3d 1279, 1283 (Ct. App. 2012). Any error in introducing improper testimony is harmless,
rather than reversible, when the reviewing court can find beyond a reasonable doubt that the jury
would have reached the same result without the admission of the challenged evidence.
Grantham, 146 Idaho at 498, 198 P.3d at 136. For example, in State v. Keyes, 150 Idaho 543,
248 P.3d 1278 (Ct. App. 2011), the defendant moved for a mistrial after an expert witness,
testifying in regards to a house fire, stated that the defendant deliberately set the fire. Whether
the defendant accidently or deliberately set the fire was the key issue at trial. However, in the
context of the full record, this Court concluded the State introduced compelling evidence that the
fire was intentionally set. Id. at 545-46, 248 P.3d 1280-81. In light of the overwhelming




                                                 8
evidence of the defendant’s intent, this Court was convinced the improper testimony did not
contribute to the jury’s verdict. Id. at 546, 248 P.3d at 1281.
        Sigler compares his challenge to the issue this Court reviewed in State v. McMurry, 143
Idaho 312, 143 P.3d 400 (Ct. App. 2006). In McMurry, the defendant challenged a conviction
because the prosecutor made statements as to the defendant’s failure to testify. This Court did
not decide whether the district court erred in declining to grant a mistrial, but rather determined
that the prosecutor violated the defendant’s constitutional privilege against self-incrimination.
We concluded the error was not harmless because the State’s evidence rebutting the defendant’s
self-defense claim was weak and we could not say, beyond a reasonable doubt, that the verdict
would have been the same absent the error by the prosecutor. Id. at 316, 143 P.3d at 404. We
vacated the judgment of conviction and remanded the case for a new trial. Id. at 317, 143 P.3d at
405.
        McMurry is clearly distinguishable from this case. First, the improper testimony by the
witness in this case did not implicate Sigler’s right against self-incrimination. Second, the
evidence in this case, establishing Sigler’s knowing and willful possession of sexual photographs
of the underage girl, was compelling. Third, the improper testimony occurred on the second day
of a four-day trial and only a single sentence is at issue. In McMurry, the defendant challenged
three different statements by the prosecutor, given in closing arguments just before the jury
deliberated. Thus, the holding in McMurry does not compel us to reach the same conclusion
here.
        In this case, both current and former co-workers testified to knowledge of photographs,
possessed by Sigler, of the girl in various states of undress. Some of these witnesses gave
specific details regarding the content of the photographs, including ones showing the girl
bare-chested in Sigler’s office. Several witnesses also testified that Sigler casually referenced
and/or showed them the photographs on his computer on various occasions. Around the same
time frame, Sigler also showed photographs of his wife and his former girlfriend to current and
former co-workers. The State introduced the testimony regarding the photographs of Sigler’s
wife merely to establish time frames to show that the girl was under the age of majority at the
time the photographs were taken.
        Sigler asserts that the improper testimony regarding the photographs of his wife was
highly prejudicial because of the inference the jury could draw that, if he breached his wife’s


                                                  9
privacy by showing photographs of her that were sexual in nature, he would do the same to the
underage girl.   We are not persuaded.       The State did not charge Sigler with showing the
photographs of the girl to other males or breaching her privacy; it charged Sigler with possession
of material sexually exploiting a child and sexual battery of a minor. To prove the offenses, the
State introduced evidence of an ongoing pattern of conduct by Sigler towards the girl, where he
took advantage of a position of power and the girl’s vulnerability to obtain the photographs and
other improper favors from the girl. In light of the testimony by witnesses about Sigler’s
relationship with the girl, the girl’s own testimony about how Sigler obtained the photographs of
her, and the police investigation about the recovery of the photographs of the girl, one reference
to a photograph of Sigler’s wife in a negligee did not so taint the rest of the evidence as to make
the trial unfair. The district court did not err in denying the motion for a mistrial. We are
convinced beyond a reasonable doubt that the jury would have reached the same conclusion
without the improper testimony.
C.     Motion for a Judgment of Acquittal
       In support of his Idaho Criminal Rule 29(a) motion for a judgment of acquittal, 2 Sigler
asserted there was insufficient evidence to support the guilty verdicts on both Count I, possession
of material sexually exploiting a child, and Count II, sexual battery of a minor. Rule 29 provides
that the court, on motion of the defendant, shall order the entry of a judgment of acquittal if the
evidence is insufficient to sustain a conviction of the offense. The test applied when reviewing
the district court’s ruling on a motion for judgment of acquittal is to determine whether the
evidence was sufficient to sustain a conviction of the crime charged. State v. Fields, 127 Idaho
904, 912-13, 908 P.2d 1211, 1219-20 (1995). When reviewing the sufficiency of the evidence
where a judgment of conviction has been entered upon a jury verdict, the evidence is sufficient to
support the jury’s guilty verdict if there is substantial evidence upon which a reasonable trier of
fact could have found that the prosecution sustained its burden of proving the essential elements
of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d
1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App.
1991). We do not substitute our view for that of the jury as to the credibility of the witnesses, the


2
       Although Sigler calls this a motion to dismiss, in both the transcript and in his written
motion made to district court, he asked for a directed verdict of acquittal under Idaho Criminal
Rule 29(a).

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weight to be given to the testimony, and the reasonable inferences to be drawn from the
evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683, 684,
701 P.2d 303, 304 (Ct. App. 1985). Moreover, we consider the evidence in the light most
favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson, 121
Idaho at 104, 822 P.2d at 1001.
          As to Count I, Sigler argues the only factor listed under Idaho Code § 18-1507 that the
State charged was “erotic nudity,” which as defined means, in relevant part, the display of human
female breasts for the purpose of real or simulated overt sexual gratification or stimulation of one
or more of the persons involved. I.C. § 18-1507(1)(d). Sigler contends there is no evidence in
the record that the photographs were taken or utilized to arouse, stimulate, or sexually gratify
either the girl or Sigler. In regards to Count II, a person is guilty of sexual battery of a minor
under Idaho Code § 18-1508A if that person makes any photographic or electronic recording of a
such minor child with the intent of arousing, appealing to or gratifying the lust, passion, or
sexual desires of such person, the minor child, or third party. Again, Sigler asserts there is no
evidence that the photographs were taken of the girl to arouse, appeal to or gratify the lust or
passion of Sigler, the girl, or any other person.
          The State asserts the evidence that Sigler asked the girl to undress, took photographs of
her in his office in various poses, and then kept and showed the photographs of the girl to others
demonstrates his guilt. In other words, there is ample evidence of Sigler’s sexual intent in the
record.
          We preliminarily note that Sigler did not challenge the sufficiency of the evidence as to
Count II in the written motion for a judgment of acquittal, nor did he assert a challenge to Count
II in his complementary oral motion and argument before the district court. The district court
only ruled with respect to Count I, and therefore, we will not address the challenge to Count II.
See State v. Huntsman, 146 Idaho 580, 585, 199 P.3d 155, 160 (Ct. App. 2008) (concluding that
in order for an issue to be raised on appeal, the record must reveal an adverse ruling that forms
the basis for assignment of error).
          Idaho Code § 18-1507(2), sexual exploitation of a minor, criminalizes the knowing and
willful possession of sexually exploitative material. “Sexually exploitative material” means, in
relevant part, any image or photograph, digitally or chemically produced, that shows a child
engaging in, participating in, observing, or being used for explicit sexual conduct.            I.C.


                                                    11
§ 18-1507(1)(j). “Explicit sexual conduct” includes “erotic nudity,” I.C. § 18-1507(1)(e), which
in turn includes the display of human female breasts or the developing breast area of the human
female child for the purpose of real or simulated overt sexual gratification or stimulation of one
or more of the persons involved, I.C. § 18-1507(1)(d).
       We recognize that evidence of only the knowing and willful possession of depictions of
child nudity, without more, would be insufficient under the statute. See State v. Morton, 140
Idaho 235, 238, 91 P.3d 1139, 1142 (2004). There must be evidence that the photographs were
taken for the purpose of sexual gratification. See id. Where specific intent is an essential
element of the crime, as in this case, direct evidence of such intent is not required. State v.
Marsh, 141 Idaho 862, 867, 119 P.3d 637, 642 (Ct. App. 2004); State v. Norton, 134 Idaho 875,
880, 11 P.3d 494, 499 (Ct. App. 2000). Instead, such intent may be proven through the use of
circumstantial evidence, such as evidence of the defendant’s acts, conduct, and surrounding
circumstances. Marsh, 141 Idaho at 867, 119 P.3d at 642; Norton, 134 Idaho at 880, 11 P.3d at
499.
       In denying the motion for a judgment of acquittal, the district court stated:
               In this particular case, we have the testimony of the alleged victim with
       regard to how these pictures were taken, the circumstances under which the
       pictures were taken. We have the testimony of other individuals who worked in
       the office that these were drawn up by the defendant to show to other male
       members in the office.
               We have the alleged victim’s testimony as to what the defendant said to
       her, what the defendant did, the comments that the defendant made. And the
       Court believes that there is certainly substantial competent evidence that would
       allow a jury to find guilty beyond a reasonable doubt if it believes the testimony
       of those witnesses with regard to the photographs, so I would not grant [the
       motion] under [Rule] 29.
       The district court did not err in its conclusion. Based on Sigler’s acts, conduct, and
surrounding circumstances, a reasonable trier of fact could have inferred the required intent and
found, beyond a reasonable doubt, that Sigler took the photographs for the purpose of sexual
gratification or stimulation. See Marsh, 141 Idaho at 867, 119 P.3d at 642 (concluding evidence
was sufficient to infer sexual intent based on the victim’s testimony that the defendant touched
her genitals with his bare hand as she pretended to sleep); State v. Parkinson, 128 Idaho 29, 38,
909 P.2d 647, 656 (Ct. App. 1996) (concluding a rational jury could infer from the victim’s
testimony that the defendant came to her bed and fondled her on three different occasions that
the defendant had the requisite sexual intent); State v. Matthews, 124 Idaho 806, 814, 864 P.2d

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644, 652 (Ct. App. 1993) (concluding a rational jury could infer from testimony from three
children, that the defendant touched them inappropriately while they were playing, that the
defendant had the requisite sexual intent); State v. Bronson, 112 Idaho 367, 369, 732 P.2d 336,
338 (Ct. App. 1987) (holding there was sufficient evidence concerning the requisite sexual intent
where the defendant admitted the acts, but the victim disputed the defendant’s characterization of
the touching as “teaching”).
D.     Motion for a Reduction of Sentence on Count II
       Sigler asserts the district court abused its discretion by denying his motion for reduction
of his sentence on Count II. 3 A motion for reduction of sentence under Idaho Criminal Rule 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 a Rule 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); State v. Lopez, 106
Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App. 1984).
       Sigler asserts the district court erred because he had no prior convictions and the two
counts for which he was found guilty did not involve any physical touching of the victim. He
further argues that the district court erred in imposing the sentences because it based them on
improper considerations. Sigler points out language from the district court, wherein it stated,
“[T]here is always a temptation, I think, to sentence a defendant not based upon what the
defendant has been found guilty of but what the defendant has been charged with.” Sigler argues
that the district court improperly considered the charged conduct and further speculated about the
counts upon which the jury could not reach a verdict.
       A conviction for sexual battery of a minor carries the possibility of up to twenty-five
years in prison. I.C. § 18-1508A. The district court initially sentenced Sigler to a unified


3
        Although Sigler sought a reduction of sentence on both counts before the district court
made by a written motion, in his issues presented to this Court, he only challenges the denial of
the Idaho Criminal Rule 35 motion as to the sentence for Count II.

                                               13
twenty-year term, with ten years determinate, for Count II, to run concurrently with the sentence
for Count I. However, the district court retained jurisdiction, and after that period, it suspended
the sentences originally imposed and placed Sigler on probation for twelve years.
       In first imposing the sentence, the district court specifically addressed the facts that Sigler
was nearly twice the age of the girl and was in a position of power over her, both because of age
and because Sigler employed the girl. The district court also dismissed Sigler’s continued
assertions that he did not intentionally keep the photographs and noted the lack of credibility in
Sigler’s testimony about the circumstances under which the photographs were taken. The district
court also noted some difficulty with the credibility of the girl’s testimony during trial and
speculated that the testimony may have been a factor in the jury’s inability to reach a verdict on
several counts. However, the district court stated, “I still must sentence this defendant on what
he has been found guilty of, not with what he has been accused of.” The district court then went
on to note Sigler’s community and family support and lack of any prior criminal record. The
district court further noted that, although Sigler committed serious crimes, there was no force
used against the girl.   However, the district court was also cognizant of the fact that the
psychosexual evaluation placed Sigler as a moderate risk to reoffend and, consequently, at the
time the sentences were first imposed, probation was not an option. Because the psychosexual
evaluator also indicated that Sigler was amenable to treatment in a structured environment, the
district court provided Sigler with the opportunity to complete a period of retained jurisdiction.
Nonetheless, given the nature of the crime, the district court imposed a significant underlying
sentence on Count II of a unified term of twenty years, with ten years determinate.
       After the period of retained jurisdiction, the district court placed Sigler on probation for a
period of twelve years and suspended the sentences as originally imposed. The district court
considered Sigler’s success during the period of the retained jurisdiction, his progress in
treatment, and his current psychosexual assessment placing him at a low risk to reoffend. Still,
the district court noted that Sigler still tended to minimize his behavior and the crimes
committed.    After considering various aggravating and mitigating factors, the district court
ordered Sigler to a term of probation, subject to attending treatment, but did not reduce the
underlying sentences.
       Thereafter, Sigler filed his Rule 35 motion seeking a reduction in his sentences.
Acknowledging that the imposed sentences were within the statutory limits, Sigler argued that


                                                 14
his success during retained jurisdiction, his revival and expansion of his computer business after
being placed on probation, and his successful participation in two polygraphs warranted a
reduction in sentence. He again reiterated that he acknowledged responsibility for the crimes
and that they did not involve physical touching of the victim. He argued additional factors
supported a reduction in sentence, similar to ones he asserted at the sentencing hearing and at the
jurisdictional review hearing, such as the suffering of his family, his community and family
support, his severe financial losses, and that he had been deterred from reoffending by having to
serve time during the period of retained jurisdiction.
       In denying the Rule 35 motion, the district court found the information provided by
Sigler did not warrant a reduction in sentence. The district court noted that the information
provided in the polygraph reports indicating that Sigler did not touch the victim, even if true, did
not present a basis for determining the sentence was unreasonable. It specifically stated:
       [Sigler’s] repeated emphasis on the absence of touching . . . suggests that he has
       yet to come to grips with the seriousness of his conduct, and flies in the face of his
       claim that he ‘readily concedes his criminal behavior caused him to be in this
       position and blames no one except himself.’

The district court found that, given the nature of the crimes involving the exploitation of a
vulnerable minor by a person in a position of trust, the sentences adequately served the interests
of punishment, deterrence, rehabilitation, and protection of society. Finally, the district court
noted its leniency in granting retained jurisdiction followed by suspension of the underlying
sentences and probation.
       Sigler has not shown that the district court abused its sentencing discretion.           The
transcript reveals that the district court did mention the charged conduct and the counts upon
which Sigler was either acquitted or the jury failed to reach a verdict. However, the district
court, both during the original sentencing hearing and again on review after the period of
retained jurisdiction, indicated that it was basing the sentence on conduct for which Sigler was
convicted. Even still, whether the district court considered the charged conduct on the counts the
jury did not find guilt is not indicative of an abuse of discretion. When imposing a sentence,
tailored to the nature of the crime and the defendant, there is little, if any, limitation on the
information the district court can consider. State v. Flowers, 150 Idaho 568, 574, 249 P.3d 367,
373 (2011). A sentencing court may rely on past criminal behavior resulting in a conviction,
prior uncharged criminal conduct, and a defendant’s prior conduct for which he was tried and

                                                 15
acquitted. Id. Here, the district court pointedly reviewed the goals of sentencing and considered
factors weighing for and against Sigler both in the original sentencing hearing and upon review.
Although the sentence is not one that this Court would have imposed, we cannot say that it is
plainly excessive under any reasonable view of the facts. State v. Murillo, 135 Idaho 811, 815,
25 P.3d 124, 128 (Ct. App. 2001). Therefore, we are constrained to hold that the district court
did not err in denying Sigler’s Rule 35 motion as to Count II, finding the information did not
warrant further leniency from the court. We note, however, that should Sigler’s probation ever
be revoked, the district court will possess the authority to reduce the sentence at that time.
                                                 III.
                                          CONCLUSION
       We conclude that Sigler has failed to show that the prosecutor committed misconduct or
that the prosecutor’s conduct required the judge to abandon a neutral role, and consequently,
Sigler has not established he was denied a fair trial. We further conclude that the district court
did not err in denying the motion for a mistrial or in denying the motion for a judgment of
acquittal as to Count I. Lastly, we conclude the district court did not abuse its discretion in
denying Sigler’s Rule 35 motion for a reduction in sentence in regards to Count II. Accordingly,
we affirm the judgment of conviction, as well as the order denying Sigler’s Rule 35 motion.
       Judge LANSING and Judge GRATTON CONCUR.




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