               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45318

STATE OF IDAHO,                                 )
                                                )    Filed: April 2, 2019
       Plaintiff-Respondent,                    )
                                                )    Karel A. Lehrman, Clerk
v.                                              )
                                                )    THIS IS AN UNPUBLISHED
JOSEPH ANTHONY THOMAS, JR.,                     )    OPINION AND SHALL NOT
                                                )    BE CITED AS AUTHORITY
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Second Judicial District, State of Idaho, Nez
       Perce County. Hon. Gregory FitzMaurice, District Judge.

       Judgment of conviction and sentence for first degree murder, affirmed.

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

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

GRATTON, Chief Judge
       Joseph Anthony Thomas, Jr. appeals from the judgment of conviction and sentence for
first degree murder. Thomas argues the district court erred by denying his request to instruct the
jury on the lesser included offense of voluntary manslaughter and abused its discretion by
imposing an excessive sentence. For the reasons set forth below, we affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       The State charged Thomas with first degree murder for the death of his ex-wife (Beth).
Beth died from strangulation. Thomas pled not guilty to the charge and proceeded to trial. At
trial, the State’s theory of the case was that Thomas used his belt to strangle Beth in her home.
Thomas claimed that Beth used his belt in an act of autoerotic asphyxiation and died as a result.
A jury found Thomas guilty of first degree murder. Thomas appealed, and this Court affirmed.


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State v. Thomas, Docket No. 39776 (Ct. App. March 27, 2014) (unpublished). However, the
Idaho Supreme Court granted review and vacated the judgment of conviction. State v. Thomas,
157 Idaho 916, 920, 342 P.3d 628, 632 (2015).
       On remand and prior to the second trial, Thomas requested that the jury be instructed on
the difference between murder and manslaughter. In addition, Thomas requested that the jury be
instructed on the elements of voluntary manslaughter as a lesser included offense of murder. The
district court indicated that it would withhold ruling on whether to give Thomas’s proposed
instructions until after the close of the evidence. During trial, the court held a jury instruction
conference and invited argument on the proposed instructions. Thomas argued that some of the
evidence presented could be interpreted to satisfy the elements of voluntary manslaughter. The
court concluded: “My review of the evidence indicates to me that under no reasonable view of
the evidence could the Court make a finding that [Thomas] had committed the lesser included
offense[] of voluntary manslaughter . . . .” The district court declined to give Thomas’s proposed
instructions. The jury found Thomas guilty of first degree murder. The district court imposed a
unified life sentence with twenty-four years determinate. Thomas timely appeals.
                                                 II.
                                           ANALYSIS
       Thomas argues the district court erred by denying his request to instruct the jury on the
lesser included offense of voluntary manslaughter and abused its discretion by imposing an
excessive sentence in light of mitigating factors.
A.     Jury Instructions
       1.      Voluntary manslaughter
       Thomas claims that a reasonable view of all of the evidence presented at trial supports his
request to give a voluntary manslaughter instruction, and thus the district court erred in denying
his request. Whether a 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).
       Similarly, this Court exercises free review of the district court’s refusal to instruct the
jury on a lesser included offense. State v. Young, 138 Idaho 370, 373-374, 64 P.3d 296, 299-300

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(2002). Idaho Code § 19-2132(b) mandates that a district court shall instruct the jury with
respect to a lesser included offense if: (1) either party requests an instruction, and (2) there is a
reasonable view of the evidence presented in the case that would support a finding that the
defendant committed such lesser included offense but did not commit the greater offense. I.C.
§ 19-2132(b). “When a district court is requested to give an instruction on a lesser included
offense, it must look to all of the evidence presented at the trial to determine if there is a
reasonable view of the evidence to support the requested instruction.” State v. Thomasson, 122
Idaho 172, 175, 832 P.2d 743, 746 (1992). “[I]f the district court makes the determination that
there is a reasonable view of the evidence to support an instruction on the lesser included
offense, then it must instruct the jury on that lesser included offense.” Id.
       Here, Thomas argues that (1) he properly requested a jury instruction on voluntary
manslaughter; (2) voluntary manslaughter is a lesser included offense of murder; (3) his
proposed instruction correctly stated the law; and (4) a reasonable view of the evidence presented
at trial supports a finding that Thomas killed Beth upon a sudden quarrel or heat of passion,
without malice aforethought. In response, the State only contests whether a reasonable view of
the evidence presented at trial supports a finding that Thomas committed voluntary manslaughter
but did not commit murder.
       Manslaughter is the unlawful killing of a human being . . . without malice. I.C. § 18-
4006. Voluntary manslaughter is committed upon a sudden quarrel or heat of passion. I.C. § 18-
4006(1). Murder requires malice aforethought, I.C. § 18-4001, while manslaughter does not.
       In support of his argument, Thomas provides this Court with a variety of evidence that
was presented at trial and claims that based on this evidence, the jury could have reasonably
concluded that,
       Mr. Thomas and [Beth] had sex, during which Mr. Thomas strangled [Beth] for
       her sexual pleasure as they had done so many times before, but that at some point,
       upon a sudden quarrel or heat of passion, Mr. Thomas strengthened his grip
       around the belt, causing [Beth] to lose consciousness, and eventually die.
Thomas has failed to show that a reasonable view of the evidence supported giving a voluntary
manslaughter instruction, and thus the district court did not err in denying Thomas’s request.
First, there is no evidence, let alone a reasonable view of the evidence, of a sudden quarrel.
Second, similarly, no reasonable view of the evidence supports a finding of killing in the heat of
passion. One of the instructions proposed by Thomas stated, in part:


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               There is no malice aforethought if Mr. Thomas acted with adequate
       provocation while in the heat of passion or a sudden quarrel, even if Mr. Thomas
       intended to kill the deceased. The provocation would have been adequate if it
       would have caused a reasonable person, in the same circumstances, to lose self-
       control and act on impulse and without reflection.
               Heat of passion may be provoked by fear, rage, anger, terror, revenge or
       other emotion. Adequate provocation does not exist, however, when a person acts
       from choice and malice aforethought even though experiencing any number of
       emotions.
See Idaho Criminal Jury Instruction 707. Again, there is no evidence of provocation. Contrary
to a showing of fear, rage, anger, terror, revenge or similar emotion, Thomas’s evidence was that
he and the victim were getting along and exchanged messages inviting Thomas to visit. Thomas
claimed that he and the victim were having sex. Thomas’s friend’s testimony that Thomas told
him he killed his wife by strangling her because he couldn’t “take that shit anymore” shows
choice, not the type of provocation set forth above. The district court did not err in refusing to
give the requested instructions. In addition, even assuming error, such error would be harmless.
       2.      Harmless error
       Thomas argues the State is unable to prove, beyond a reasonable doubt, that the district
court’s denial of his request to instruct the jury on voluntary manslaughter was harmless.
According to Thomas, the jury instructions, when read as a whole, did not require the jury to
acquit Thomas of the greater charge before considering lesser included offenses. The State
argues that even if denying Thomas’s request for a voluntary manslaughter instruction was error,
any such error was harmless. Specifically, the State claims that the jury convicted Thomas of
first degree murder after being instructed on the “acquittal first” rule, which it presumptively
followed, thus the jury would not have considered voluntary manslaughter had it been included
in the instructions. We agree with the State.
       Error is not reversible unless it is prejudicial. State v. Stoddard, 105 Idaho 169, 171, 667
P.2d 272, 274 (Ct. App. 1983).       With limited exceptions, even constitutional error is not
necessarily prejudicial error. Id. Thus, we examine whether the alleged error complained of in
the present case was harmless. See State v. Lopez, 141 Idaho 575, 578, 114 P.3d 133, 136 (Ct.
App. 2005). Where a defendant meets his or her initial burden of showing that a constitutional
violation has occurred, the State has the burden of demonstrating to the appellate court beyond a
reasonable doubt that the violation did not contribute to the jury’s verdict. State v. Perry, 150
Idaho 209, 227-28, 245 P.3d 961, 979-80 (2010).

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        The Idaho Supreme Court addressed how harmless error analysis interacts with
challenges to a district court’s refusal to give an instruction on lesser included offenses in State v.
Joy, 155 Idaho 1, 7, 304 P.3d 276, 282 (2013). In Joy, the Idaho Supreme Court adopted the
acquittal first rule. Id. The acquittal first rule is based on Idaho Code § 19-2132(c), which
provides:
       If a lesser included offense is submitted to the jury for consideration, the court
       shall instruct the jury that it may not consider the lesser included offense unless it
       has first considered each of the greater offenses within which it is included, and
       has concluded in its deliberations that the defendant is not guilty of each of such
       greater offenses.
The Idaho Supreme Court explained that even if the jury is instructed on a lesser included
offense, it must also “be instructed to decide whether the defendant is guilty of the greater charge
first, and only to consider the lesser included offense if the jury unanimously finds the defendant
is not guilty of the greater charge.” Id. This Court presumes that the jury follows the instructions
that it is given. Id. Thus, it must be presumed that a jury would follow the acquittal first
instruction. Id.
       Based on the acquittal first rule, we conclude that the State has proven beyond a
reasonable doubt that any alleged violation did not contribute to the jury’s verdict. The record
reflects that the district court read the jury instructions aloud to the jury following the conclusion
of the presentation of evidence. Jury instruction 16 instructed the jury on the elements of first
degree murder consistent with Idaho Criminal Jury Instruction (ICJI) 704A.               Immediately
thereafter, the court read jury instruction 17 which, consistent with ICJI 225, instructed the jury
as follows: “If your unanimous verdict is that the Defendant is not guilty of Murder in the First
Degree, you must acquit him of that charge. In that event, you must next consider the included
offense of Murder in the Second Degree.” Thereafter, the court read jury instruction 18, which
instructed the jury on second degree murder consistent with ICJI 705.
       According to Thomas, jury instruction 17 was an acquittal first instruction but it did not
require the jury to acquit Thomas of the greater charge before the jury could consider any lesser
included offense. Thomas argues that “the instructions as a whole told the jurors that there [sic]
were to determine what crime, if any, Mr. Thomas committed.” Based on this reasoning,
Thomas argues that “the State could not prove, beyond a reasonable doubt, that had the jury been
told they could consider whether Mr. Thomas acted upon a sudden quarrel or in the heat of


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passion, the jury nevertheless would have found Mr. Thomas guilty of first degree murder.” We
disagree.
       Contrary to Thomas’s assertion, jury instruction 17 did bar the jury from considering the
lesser included offense of second degree murder prior to acquitting Thomas of first degree
murder and was an appropriate acquittal first instruction. First, despite not restating the exact
language of I.C. § 19-2132(c), jury instruction 17 was a verbatim recitation of ICJI 225. We
presume that pattern jury instructions are correct statements of law. State v. Reid, 151 Idaho 80,
86, 253 P.3d 754, 760 (Ct. App. 2011). ICJI 225 is intended to satisfy I.C. § 19-2132 and is to be
inserted as a transition between greater and lesser included offenses. See ICJI 225 comment.
       Second, when viewing the jury instructions as a whole, jury instruction 17 instructed the
jury that it must first determine whether Thomas was guilty of first degree murder, and that if it
unanimously acquitted Thomas of first degree murder its “next” task was to consider second
degree murder. Therefore, the jury instructions given in this case complied with the acquittal
first rule and we presume that the jury followed the district court’s instructions. State v. Iverson,
155 Idaho 766, 776, 316 P.3d 682, 692 (Ct. App. 2014). The jury unanimously found, beyond a
reasonable doubt, that Thomas had committed first degree murder. Thus, the jury did not
consider whether Thomas committed the lesser included offense of second degree murder and
would not have considered the lesser included offense of voluntary manslaughter had such an
instruction been given. See Joy, 155 Idaho at 7, 304 P.3d at 282. Consequently, assuming that
the district court erred by failing to give instructions on the lesser included offense of voluntary
manslaughter, any such error was harmless.
B.     Sentencing
       Thomas argues the district court abused its discretion by imposing an excessive sentence
in light of mitigating factors. According to Thomas, those mitigating factors include: his lack of
a significant prior criminal record; his exceptional service as a law enforcement officer; his
overwhelming support from family and friends stemming from his compassionate,
service-oriented character; and the positive impact he has had on others’ lives.
       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

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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 the offense, the character of the offender, and the protection of the public
interest.   State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When
reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver,
144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
        We conclude that Thomas has failed to show that the district court abused its discretion in
imposing his sentence. Because Thomas was convicted of first degree murder, his sentence must
conform to the requirements of I.C. § 18-4004 which provides:
        [E]very person guilty of murder of the first degree shall be punished by death or
        by imprisonment for life . . . . [I]f the death penalty is not sought, the court shall
        impose a life sentence with a minimum period of confinement of not less than ten
        (10) years during which period of confinement the offender shall not be eligible
        for parole or discharge or credit or reduction of sentence for good conduct.
The district court sentenced Thomas to life imprisonment with twenty-four years determinate.
Thus, Thomas’s sentence was within the statutory guidelines.        Although Thomas requested an
indeterminate term of twenty years, the district court correctly explained during the sentencing
hearing that I.C. § 18-4004 constrains the court to impose either a term of life imprisonment or
the death penalty. Because the prosecuting attorney’s office had determined not to seek the
death penalty in this case, the court explained that its only option was to impose an indeterminate
sentence of life imprisonment.
        Additionally, the sentence imposed by the district court is not unreasonable upon review
of the facts of the case. With respect to the determinate portion of Thomas’s sentence, the court
expressly considered the statutory minimum of ten years and the statutory maximum of life.
After weighing the mitigating and aggravating factors, the court rejected imposing the minimum
or maximum. The district court considered the sentencing objectives, the facts underlying the
crime, the impact of the crime, and the presentence investigation report. Moreover, the district
court expressly considered each of the mitigating factors that Thomas relies on in this appeal. It
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weighed those factors against various aggravating factors including Thomas’s prior unhealthy
relationships with women and the extreme brutality of the crime. The district court explained
that,

        the Court’s view from the evidence that was submitted at trial and the matters
        presented in the PSI and other attached documents, I think support a finding that
        the murder of Beth [] in this case was accomplished through an especially violent,
        calculated, and callous act by [Thomas] in strangling the life from the woman that
        [he] had once loved and was the mother of [his] children.
The district court thoroughly articulated its reasons for imposing Thomas’s sentence. Therefore,
we conclude the sentence that was imposed on Thomas is adequate to protect society and further
the sentencing objectives; thus, the district court did not abuse its discretion in imposing
Thomas’s sentence.
                                                 III.
                                          CONCLUSION
        The district court did not err in refusing to instruct the jury on the lesser included offense
of voluntary manslaughter. Regardless, any error was harmless. In addition, the district court
did not abuse its discretion by imposing Thomas’s sentence. Therefore, Thomas’s judgment of
conviction and sentence for first degree murder is affirmed.
        Judge HUSKEY and Judge BRAILSFORD CONCUR.




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