                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                     Docket No. 39467-2011

STATE OF IDAHO,                                    )
                                                   )          Boise, November 2013 Term
       Plaintiff-Respondent,                       )
                                                   )          2013 Opinion No. 111
v.                                                 )
                                                   )          Filed: November 26, 2013
TODD W. CARVER,                                    )
                                                   )          Stephen W. Kenyon, Clerk
       Defendant-Appellant.                        )
                                                   )

       Appeal from the District Court of the Second Judicial District of the State of
       Idaho, in and for Idaho County. The Hon. Michael J. Griffin, District Judge.

       The judgment of the district court is affirmed.

       Spencer J. Hahn, Deputy State Appellate Public Defender, Boise, argued for appellant.

       Jessica M. Lorello, Deputy Attorney General, Boise, argued for respondent.



EISMANN, Justice.
       This is an appeal out of Idaho County from a jury verdict of guilty to and the sentence for
the crime of first degree murder of a three-year-old child. The defendant challenges the failure
of the district court to appoint him substitute counsel, the jury instructions defining felony
murder, and his sentence of life in prison without parole. We affirm the conviction and sentence.


                                               I.
                                      Factual Background.

       Todd W. Carver (Defendant) was found guilty by a jury of murdering a three-year-old
boy who was the son of Defendant’s live-in girlfriend. The child suffered multiple blows to his
head, causing bilateral subdural hematomas, and there was bruising on his neck consistent with
strangulation. The district court sentenced Defendant to life in prison without the possibility of
parole. He appeals, challenging the failure of the district court to appoint substitute counsel, the
jury instructions defining the crime, and the sentence imposed.
                                             II.
            Did the District Court Err in Failing to Appoint Substitute Counsel?
       On April 4, 2011, a public defender was appointed to represent Defendant in this case.
The preliminary hearing was held on April 13, 2011, and Defendant was bound over to answer to
the charge in district court. The information charging murder in the first degree was filed on
April 14, 2011, and on April 21, 2011, Defendant entered a plea of not guilty to that charge. The
case was eventually set for a jury trial to begin on September 19, 2011.
       On September 8, 2011, Defendant, through his public defender, filed a motion to dismiss
counsel. The motion stated that it was made “at the express direction of the defendant for
reasons the defendant will articulate on the record at the hearing of this motion.” The motion
was heard by the district court on September 13, 2011. On that date, defense counsel filed an ex
parte affidavit in support of the motion. In that affidavit, defense counsel stated that he felt
threatened by Defendant’s conduct during their meeting earlier that day. He described what
occurred as follows:
               On September 13, 2011 at approximately 11:00 a.m. I met with the
       defendant in the Idaho County jail attorney visiting room. During the meeting the
       defendant became agitated and told me that he no longer had anything to say and
       did not want to talk to me anymore about the case. I continued to make a point to
       the defendant, and the defendant quickly became more agitated. The defendant
       shouted at me and struck the side of his fist hard on the door behind him. The
       defendant then looked directly at me with what I took as a menacing glare. The
       defendant shouted for the jail staff to come get him and I also knocked on the
       door to summon jail staff. Jail staff took the defendant back to his cell. While the
       defendant was being taken back to his cell he continued to make angry comments,
       and when he was placed in his cell he continued to yell and to strike things.

Defense counsel concluded his request for permission to withdraw by stating, “The defendant’s
conduct and my fear for my safety will be a distraction to me throughout the trial and any
subsequent proceedings, and I will not be able to impartially and zealously represent the
defendant or advocate on his behalf.”
       The district court began by asking defense counsel about the motion. He answered that
he had filed the motion at the request of Defendant but knew nothing further. The court then
inquired of Defendant, who recited a list of grievances against his defense counsel. He stated
that he had asked his counsel to get an investigator and a forensic specialist and had given him a


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list of witnesses to interview, but counsel had not done those things. He also did not like his
counsel’s suggestion that if he admitted some fault, he may be able to receive a reduced charge.
       The court then questioned defense counsel. He stated that he had considered obtaining an
investigator and medical expert, but did not consider either to be helpful. He had also talked to
some of the witnesses Defendant had identified, but there was only one who could potentially be
helpful, and he did not need to talk with the others.
       The court then questioned the deputies who were present at the jail during the morning
outburst by Defendant while he was meeting with his defense counsel. They both said that
Defendant did not do anything other than hit the walls and that they did not hear Defendant say
anything in a threatening manner.
       The court then addressed Defendant again, explaining the role of defense counsel and
informing Defendant he could represent himself if he desired or retain his own counsel.
Defendant stated that he did not want to represent himself and did not have the money to hire an
attorney. During their dialogue, Defendant stated “as far as I know told that there’s nothing
presented in my behalf because I don’t have a defense. I thought that’s what a defense attorney
was for.” After further dialogue, the court asked Defendant if he intended to threaten his counsel
physically, and Defendant said he did not. Defense counsel stated that he did not have anything
further to say, and the prosecuting attorney was given an opportunity to speak.
       The hearing on the motion to dismiss counsel was heard on Tuesday, September 13,
2011, and the trial was set for Monday, September 19, 2011. Then the court asked defense
counsel if he “can and would be prepared for trial on Monday”, and defense counsel answered,
“Yes.” The court then asked Defendant if he would continue working with his counsel, and
Defendant answered, “I guess I’ll try to continue to work with him because apparently
everything is out of my control.”
       “A trial court may appoint substitute counsel for an indigent defendant upon a showing of
good cause. Whether substitute counsel should be provided is a decision that lies within the
sound discretion of the trial court and will be reviewed on appeal for an abuse of discretion.”
State v. Severson, 147 Idaho 694, 702, 215 P.3d 414, 422 (2009). The Sixth Amendment to the
Constitution of the United States has been construed to ensure that a defendant receives conflict-
free counsel in state criminal proceedings. Wood v. Georgia, 450 U.S. 261, 271 (1981). “In
order to ensure that a defendant receives conflict-free counsel, a trial court has an affirmative


                                                  3
duty to inquire into a potential conflict whenever it knows or “reasonably should know that a
particular conflict may exist.” Severson, 147 Idaho at 703, 215 P.3d at 423. “[A] trial court’s
examination of the potential conflict must be thorough and searching and should be conducted on
the record.” Id. at 704, 215 P.3d at 424.
           On appeal, Defendant contends that the district court’s inquiry was deficient in two areas.
First, he argues that a client threatening his or her attorney with harm creates a conflict of
interest. It is the court that determines whether a conflict actually exists. Id. During his
dialogue with the court, Defendant stated that he did not intend to threaten his counsel
physically. After Defendant disavowed any intent to harm his counsel, the court asked defense
counsel if he wanted to say anything further, and defense counsel stated that he had nothing
further to add. The court viewed Defendant, his counsel, and the officers as they answered the
court’s questions, and the court could judge their credibility and weigh their statements. During
the dialogue, there was no indication that Defendant had any intent to harm his counsel.
           Second, Defendant argues “the district court did not inquire into defense counsel’s ability
to provide competent and diligent representation (which is different than simply being ready to
participate at trial on a given date).” Although Defendant seeks to parse counsel’s words, there
is no indication that defense counsel was unaware of his obligation to provide competent and
diligent representation to Defendant when counsel stated he could be and would be ready for
trial. 1    “[I]n determining whether a conflict exists, trial courts are entitled to rely on
representations made by counsel.” Id.
           The district court made a thorough and searching inquiry into whether there was a
conflict based upon defense counsel’s belief that Defendant had threatened to harm him.
Defendant stated that he did not intend to harm his attorney, and it was apparent from the
dialogue that Defendant was merely frustrated that there was no defense to his crime and that his
defense counsel could not create one out of thin air. The district court did not err in failing to
allow Defendant’s counsel to withdraw and to appoint substitute counsel.




1
  Rule 1.1 of the Idaho Rules of Professional Conduct states, “A lawyer shall provide competent representation to a
client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably
necessary for the representation,” and Rule 1.3 states, “A lawyer shall act with reasonable diligence and promptness
in representing a client.”

                                                         4
                                            III.
    Did the District Court Err in Instructing the Jury as to the Elements of the Crime?
        Defendant was convicted of murder in the first degree by committing an aggravated
battery upon a child under twelve years of age. With respect to the elements of that crime, the
district court instructed the jury as follows:
                                       INSTRUCTION NO. 4
                In order for the defendant to be guilty of First Degree Murder in the
        perpetration of an aggravated battery upon a child under twelve (12) years of age,
        the state must prove each of the following:
                1. On or about March 3, 2011,
                2. in the state of Idaho
                3. Todd William Carver committed an aggravated battery upon [the child]
                4. Which caused [the child] great bodily harm,
                5. From which bodily harm [the child] died, and
                6. That [the child], at the time of his death, was under twelve (12) years of
                age.

                To prove Todd William Carver guilty of first degree murder in this way,
        the state does not have to prove that the defendant intended to kill [the child], but
        the state must prove that during the perpetration of an aggravated battery on a
        child under twelve (12) years of age, the defendant killed [the child].
                If you find that the state has failed to prove any of the above, you must
        find the defendant not guilty of first degree murder. If you find that all of the
        above have been proven beyond a reasonable doubt, then you must find the
        defendant guilty of first degree murder.

                                     INSTRUCTION NO.5
                An “aggravated battery” is a “battery” that causes great bodily harm,

                A “battery” is committed when a person:
        (1) willfuly and unlawfully uses force or violence upon the person of another; or
        (2) actually, intentionally and unlawfully touches or strikes another person against
        the will of the other; or
        (3) unlawfully and intentionally causes bodily harm to an individual.

                An act is “willful” or done “willfully” when done on purpose. One can act
        willfully without intending to violate the law, without intending to injure another,
        or without intending to acquire any advantage.

        Defendant contends that the above instructions were in error because they did not instruct
the jury that, to find Defendant guilty of first degree murder, the jury must find that he intended
to cause the child great bodily harm. Because Defendant did not timely object to the jury
instructions in the trial court, this assignment of error is only reviewable under Idaho’s

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fundamental error doctrine. State v. Adamcik, 152 Idaho 445, 472-73, 272 P.3d 417, 444-45
(2012). “Before we consider whether there was fundamental error, we must first determine
whether the trial court erred at all.” Id. at 473, 272 P.3d at 445.
       Idaho Code section 18-4003(d) provides, “Any murder committed in the perpetration of,
or attempt to perpetrate, aggravated battery on a child under twelve (12) years of age . . . is
murder of the first degree.”      Quoting State v. Pina, 149 Idaho 140, 233 P.3d 71 (2010),
Defendant states, “Idaho’s felony murder rule requires a finding that each participant had the
specific intent to commit the underlying felony . . . .” Id. at 147, 233 P.3d at 78. The underlying
felony alleged in this case was aggravated battery, which requires that in committing a battery
the defendant must have “[c]aused great bodily harm.”             I.C. § 18-907(1)(a).   Therefore,
Defendant contends that the jury should have been instructed that to find him guilty, the jury
must find that he intended to cause great bodily harm when he committed a battery upon the
child. He asserts, that in order to convict him of felony murder, “not only did the jury have to
find that Mr. Carver had the requisite mental state to commit an aggravated battery, it also had to
find that he had the specific intent to cause great bodily harm to [the child].”
       In making this argument, Defendant relies upon the quotation from Pina and the case it
cited, which was State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1985). Neither case supports
Defendant’s argument, because the issue in both cases was whether an alleged participant in a
killing could be liable under the felony-murder rule if that participant had no intent to commit the
underlying felony. Here, the defendant acted alone.
       In Scroggins, the defendant was convicted of felony murder based upon a killing
committed during the perpetration of an attempted rape. 110 Idaho at 382, 716 P.2d at 1154. He
and his co-defendant, who actually killed the victim, were tried at the same time with separate
juries. They both testified. Scroggins argued on appeal that the district court erred in failing to
instruct the jury regarding accomplice testimony. In addressing the issue of whether Scroggins
was an accomplice to the underlying felony committed by his co-defendant, this Court stated, “In
a prosecution for felony-murder, the state is relieved of the burden of proving that a defendant
had the specific intent to kill and instead need only prove that all individuals charged as
principals had the specific intent to commit the predicate felony.” Id. at 386, 716 P.2d at 1158.
       In Pina, we discussed more thoroughly whether Idaho’s felony murder rule incorporated
the agency theory or the proximate-cause theory. We explained the two theories as follows:


                                                  6
       Under the agency theory, the felony-murder rule is only applied to actors who are
       acting in concert in furtherance of a common plan or scheme to commit the
       underlying felony and one of them causes the death during the perpetration of the
       felony, regardless of who actually fired the fatal shot. Under the proximate-cause
       theory, each actor is held responsible for the death of a person caused during the
       perpetration of a felony if it was reasonably foreseeable that the acts committed
       might reasonably be expected to result in death.

149 Idaho at 144, 233 P.3d at 75 (footnotes omitted). In analyzing that issue, we noted that the
felony murder rule had never been applied by an appellate court in Idaho “that resulted in a
person involved in the commission of a felony being held responsible for a killing caused by a
third person not involved in the underlying felony.” Id. at 146, 233 P.3d at 77. We also stated,
“Additionally, this Court indicated in State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1985),
that Idaho’s felony murder rule requires a finding that each participant had the specific intent to
commit the underlying felony.” Id at 147, 233 P.3d at 78.
       In both cases, the issue was whether a defendant who did not commit the killing could be
convicted of felony murder if the defendant had no intent to commit the underlying felony. In
each case, we held that the defendant who did not commit the killing must have intended to
commit the underlying felony in order to be guilty of first degree murder under the felony
murder rule. In this case, there is no co-defendant who is the one who actually killed the child.
Defendant was the only one involved. He was alone with the child when the child was killed.
Therefore, Pina and Scroggins have no application to this case.
       As Defendant conceded during oral argument, the crime of aggravated battery does not
require any intent to cause great bodily harm. A battery becomes an aggravated battery if in
committing a battery the person causes great bodily harm. I.C. § 18-907(1)(a). A battery
becomes aggravated battery because of the harm caused, not because of the intent to cause that
harm. Here, the district court correctly instructed the jury that Defendant would be guilty of first
degree murder if he committed a battery upon the child which resulted in great bodily harm,
from which the child died. Instructing the jury that Defendant had to have intended to cause
great bodily harm to the child would not have been an accurate statement of the law.


                                          IV.
 Did the District Court Abuse Its Discretion in Sentencing Defendant to Life in Prison
                                   Without Parole?


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       The district court sentenced Defendant to life in prison without the possibility of parole.
Defendant contends that the court abused its discretion in doing so.
       Defendant was paroled from prison on December 22, 2010, and on the same day he
moved into his grandmother’s house in Grangeville. He occupied the upstairs, which consisted
of three bedrooms. His grandmother’s bedroom was on the first floor, as were the bathroom, the
kitchen, and the living room. In January 2011, Defendant moved his girlfriend and her two
children into the upstairs with him. His girlfriend had a three-year-old son by a prior relationship
and an eighteen-month-old son from her marriage to her husband, from whom she was separated.
Defendant was unemployed, and his girlfriend had a full-time job. When she was at work,
Defendant watched the two boys.
       In mid-February 2011, the girlfriend’s husband had both boys for the weekend. He stated
that he gave both boys a bath, and neither of them was bruised. Later in February, Defendant’s
grandmother began noticing bruising on the three-year-old. She testified that while they were
sitting at the kitchen table, Defendant told the three-year-old that if he did not leave Defendant’s
candy bars alone, “I’ll bury you so deep nobody will find you.” She said that when making that
statement, Defendant’s demeanor was “[m]ean, scary, he meant business.” The grandmother
also testified to three incidents of Defendant’s harsh discipline of the child. In the latter part of
February, Defendant stated that he had slammed the upstairs window down on the child’s hands
as hard as he could. He stated that he did it in order to teach the child not to open the window.
In an offer of proof presented to the court outside the presence of the jury, the grandmother
testified to the other two incidents. About ten days before the killing, Defendant disciplined the
child by having him take off his jeans and then, while holding the child’s shoulder with one
hand, Defendant “hit him extremely hard.” When asked to describe how hard, the grandmother
answered, “If I ever got hit that hard probably knock me out.” On March 2, 2011, the child was
sick, and he vomited onto his plate and the table after eating. Defendant tried to force the child
to eat the vomit, but the grandmother intervened.
       The grandmother also testified outside the presence of the jury to facts indicating that
Defendant could have been motivated by racial animus. The grandmother stated that Defendant
did not like the child because the child’s father was African American and Defendant had said
that “he hated niggers.” She said he made that statement three or four times and that his



                                                 8
demeanor when doing so was “hateful.” When asked why she thought it was hateful, she stated,
“He definitely hated black people is why I say that.”
       On March 3, 2011, Defendant’s girlfriend left for work at 1:35 p.m., and the grandmother
followed her out of the house to have coffee with some friends. Defendant was left to care for
the two boys. One hour later, Defendant called 911 and reported that the three-year-old had been
sitting on a bed eating doughnuts, Defendant heard a thud from the bedroom and he went into the
room and found the boy on the floor, rigid, and barely breathing.
       The police officer who responded to the grandmother’s house talked with Defendant to
find out what had happened. He described Defendant’s demeanor as “[u]nemotional, apathetic, I
mean, just without seeming a care.” He testified that Defendant’s voice was monotone and that
he was not crying, nor did he appear to be upset or excited. The emergency medical technician
who arrived at the house also described Defendant as “[d]etached, uninvolved.” After the
ambulance had transported the boy to the hospital and he was in the emergency room, Defendant
and the boy’s mother went outside and stood near the back door. The ambulance driver testified
that he returned to the ambulance to clean it and get it ready in case they were called on another
run. While doing so, he observed Defendant and the mother for twenty minutes. He stated that
Defendant was smoking and laughing and that he and the boy’s mother were “kissing part of the
time, kind of laughing and carrying on.”
       Defendant testified that the child was injured when he fell off a twenty-two-inch high bed
onto an area of floor that was carpeted and also covered by a rug. There was no medical
testimony that such a fall could have caused the child’s injuries.
       There was also no evidence corroborating Defendant’s claim that the child had been
eating chocolate doughnuts while on the bed. The medical personnel did not find any trace of
food in the child’s throat or mouth, nor was there any trace of chocolate on the child’s face.
After a helicopter had picked up the child to transport him to another hospital, the grandmother
returned home and searched the bedroom, including crawling on the floor and looking under the
bed, for any crumbs or other evidence that the child had been eating doughnuts, and she could
not find any.
       The autopsy of the child was performed by a pathologist who was board certified in
forensic pathology and in clinical and anatomic pathology and who had performed 7,000 to
8,000 autopsies.   She determined that the cause of death was “herniation of the brain due to


                                                 9
bilateral, meaning on both sides, bilateral subdural hemorrhage and swelling of the brain due to
blunt impact to the head.” She described herniation as the process “where the brain tries to come
down the spinal canal because of swelling.”
       The child did not suffer a single impact to his head. The pathologist testified that a fall
from the bed would have led to a single impact, but in this case there were “at least six different
impact sites or subgaleal areas of hemorrhage, maybe more, depending on what you count and
how you count them so that’s the low end possible.” She explained that it was difficult to count
the number of impacts to the child’s head because some of the areas of hemorrhage merged
together and multiple impacts in the same area would have caused only one hemorrhage.
       When asked whether the injuries suffered by the child could have been accidental, she
answered, “No.” She explained that the number and distribution of bruises all over the child’s
body that were caused by blunt force trauma was not consistent with an accidental injury. She
described the bruises as follows:
       So that as you recall from the photographs the subgaleal hemorrhage there were
       multiple areas, and not only were there multiple areas, but they were found on the
       front of the head and the back of the head, above both ears and between the ears
       and the top of the head. So they’re on all of the surfaces of the scalp, if you will,
       the front, the back, the sides, near the top. So there’s not a way that a child would
       have injuries on multiple body surfaces like that, multiple scalp surfaces by way
       of an accident. And then if you go below the head the injuries are in the same
       distribution. They’re on the back of the body, the arms, the legs, and the torso.
       So they’re on the front and the back, the sides of the body. So when children
       injure themselves they usually do it on exposed body prominences. So injuries on
       the back of the body, and you know this from your own experience, are unusual in
       children. So are injuries on all surfaces of the head that are accidental, I’m
       talking about. And children get bumped knees and shins, but injuries to the feet
       are uncommon. Injuries to the penis are uncommon in the daily routine of
       children. So the number of distribution of bruises on the body and on the scalp
       make this non-accidental.

       When imposing the fixed life sentence, the district court focused upon Defendant’s lack
of rehabilitative potential. The court stated:
              As far as cutting against rehabilitation your record as both a juvenile and
       as an adult, not only the crimes that you’ve been convicted of and have admitted,
       but your behavior while on probation, while incarcerated and so forth, shows that
       you don’t follow the rules, whether you’re incarcerated or whether you’re outside
       of incarceration. You had a number of write-ups while you were incarcerated.
       You couldn’t finish a rider program. You’ve had write-ups while you were in jail


                                                 10
       here. You were on probation when you committed other offenses. All of this
       tends to point to the fact that maybe you can’t be rehabilitated. . . . .
               It appears to me that as pointed out since 16 you’ve been incarcerated
       most of the time. You haven’t complied with the rules while incarcerated. You
       haven’t complied with the rules outside of incarceration. I’ve come to the
       conclusion when I went through all of this and thought about it at some length,
       and quite a bit of length—you know, and I’m a person that believes in
       rehabilitation. Every time I get a chance I would like to see that happen, set up a
       program where that can happen, the possibility where that can happen. Mr.
       Carver, in your case I can’t get to that point. I just don’t believe based upon what
       I’ve seen that you can change. I wish I was wrong, but I don’t find that there’s
       any reasonable likelihood that you will, in fact, change your behavior and be a
       law abiding citizen in the future.

       The sentence in this case is within the statutory limits. When reviewing a sentence within
the statutory limits, the defendant bears the burden of demonstrating that the trial court
committed a clear abuse of its discretion. State v. Stevens, 146 Idaho 139, 148, 191 P.3d 217,
226 (2008). We will not substitute our view of a reasonable sentence for that of the trial court
where reasonable minds might differ. Id. at 148-49, 191 P.3d at 226-27. In determining whether
the trial court abused its discretion, we conduct “an independent review of the entire record
available to the trial court at sentencing, focusing on the objectives of criminal punishment: (1)
protection of society; (2) deterrence of the individual and the public; (3) possibility of
rehabilitation; and (4) punishment or retribution for wrongdoing.” Id. at 148, 191 P.3d at 226.
To impose a fixed life sentence “requires a high degree of certainty that the perpetrator could
never be safely released back into society or that the nature of the offense requires that the
individual spend the rest of his life behind bars.” Id. at 149, 191 P.3d at 227 (emphasis added).
       Defendant argues that the district court abused its discretion by failing to give greater
weight to Defendant’s youth (he was age 21 when he committed the murder), his troubled
childhood (one of his parents abused alcohol and drugs, and his grandfather, with whom he was
very close, died when Defendant was thirteen years of age), and the diagnosis during his
childhood of attention deficit hyperactivity disorder and bipolar disorder. Considering the brutal
and unprovoked injuries that Defendant inflicted upon a helpless and innocent child, Defendant
has not shown that the district court abused its discretion in imposing a fixed life sentence.




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                                         V.
                                     Conclusion.

    We affirm Defendant’s conviction and sentence.



    Chief Justice BURDICK, Justices J. JONES, HORTON and J. Pro Tem SCHROEDER
CONCUR.




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