                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40796

STATE OF IDAHO,                                   )      2014 Unpublished Opinion No. 807
                                                  )
       Plaintiff-Respondent,                      )      Filed: November 7, 2014
                                                  )
v.                                                )      Stephen W. Kenyon, Clerk
                                                  )
MICHAEL JARED THOMPSON,                           )      THIS IS AN UNPUBLISHED
                                                  )      OPINION AND SHALL NOT
       Defendant-Appellant.                       )      BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Minidoka County. Hon. Michael R. Crabtree, District Judge.

       Judgment of conviction and unified sentence of fifteen years, with a minimum
       period of confinement of five years, for involuntary manslaughter with
       enhancement, affirmed; denial of I.C.R. 35 motion, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Elizabeth Ann Allred, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Michael Jared Thompson appeals from his judgment of conviction and sentence for
involuntary manslaughter, Idaho Code § 18-4006(2), including an enhancement for use of a
deadly weapon, I.C. § 19-2520. We affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Four friends went out drinking at two local bars in Minidoka County. The victim,
Michael Blair, and his longtime friend, Kristen Kull, began to argue. By this time all four
individuals were highly intoxicated. Thompson became irritated by the arguing and decided that
they should all leave. The four friends left in Thompson’s truck. Thompson drove, Kull sat in
the front passenger seat, Blair sat directly behind the driver’s seat, and Khali Jones sat behind the
front passenger seat. Blair and Kull continued to argue as they drove towards Thompson’s


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house. Thompson interjected, “If one of you don’t shut up, I’m going to shoot somebody.”
Jones could see that he had a gun in a holster. Blair laughed. Thompson responded, “You think
I’m kidding?” He then removed the pistol from the holster and cocked the gun twice. Then
holding the gun in his right hand, Thompson rested his elbow on the center console and pointed
the gun up and backwards. Blair, who was known to be a jokester, responded, “If you’re going
to shoot somebody, it might as well be me. End my miserable existence.” Blair then slid over,
placed his hand on Thompson’s hand, and put his mouth around the barrel of the gun; the gun
fired. The shot likely killed Blair instantly. Thompson told the others that Blair pulled the
trigger. Jones could not see whose finger was on the trigger and she did not know who pulled it.
Kull could not remember what occurred that night.
       The State charged Thompson with involuntary manslaughter, with an enhancement for
using a deadly weapon. After the above information was presented at trial, 1 the jury found
Thompson guilty as charged. The district court sentenced Thompson to fifteen years with five
years determinate. Thompson subsequently filed an Idaho Criminal Rule 35 motion for leniency.
The district court denied his motion. Thompson timely appeals.
                                               II.
                                          ANALYSIS
A.     Sufficiency of the Evidence
       Thompson argues that the jury had insufficient evidence to find him guilty of involuntary
manslaughter. Appellate review of the sufficiency of the evidence is limited in scope. A finding
of guilt will not be overturned on appeal where 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 will not substitute our view for that of the trier of fact as to the
credibility of the witnesses, the 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 will consider the


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       The jury also heard testimony regarding what occurred after the shooting; however, as
noted by Thompson, that evidence does not bear on whether the State presented sufficient
evidence to establish Thompson produced the death.

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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.
       Thompson argues that the State failed to establish that he caused Blair’s death. Idaho
Code § 18-4006(2) defines involuntary manslaughter, in relevant part, as: “the operation of any
firearm or deadly weapon in a reckless, careless or negligent manner which produces death.”
(Emphasis added.) Thompson asks this Court to determine whether the trial evidence was
sufficient to support findings that his conduct was the proximate cause of Blair’s death and that
there was no intervening cause. On a charge of involuntary manslaughter, the issue of proximate
cause is, in the first instance, for the jury. State v. Monteith, 53 Idaho 30, 40, 20 P.2d 1023, 1027
(1933). Here, however, the jury was not instructed on either proximate cause or intervening
cause, and Thompson does not posit error on the absence of such instructions. Rather, he asks
this Court to determine the sufficiency of the evidence for findings that the jury was never asked
to make. We will not do so.
       In Bolognese v. Forte, 153 Idaho 857, 867, 292 P.3d 248, 258 (2012), the Idaho Supreme
Court noted that the record on appeal was inadequate to determine whether a new trial should
have been granted based on insufficiency of the evidence because the record did not include the
jury instructions. The Court said:
       A party cannot raise on appeal the giving of a jury instruction that misstates the
       law unless the party timely objected to the specific instruction on the record,
       stating the grounds of the objection. Chapman v. Chapman, 147 Idaho 756, 761-
       62, 215 P.3d 476, 481-82 (2009); I.R.C.P. 51(a)(1) & (b). A party who fails to
       properly object to an instruction that misstates the law cannot circumvent
       Rule 51(b) by arguing insufficiency of the evidence, based upon a correct
       statement of the law. In such a case, the sufficiency of the evidence must be
       determined based upon the jury instructions given, not upon those that should
       have been given.

Id. at 867 n.6, 292 P.3d at 258 n.6. Recently, the Supreme Court has reiterated this point, stating:
               Where there is no objection to the jury instructions, the sufficiency of the
       evidence to support a verdict must be based upon the jury instructions. That is
       because the jury is to apply the law as set forth in the jury instructions to the facts
       in order to reach the verdict. Whether the evidence was sufficient to support the
       verdict will therefore depend upon the law as set forth in the jury instructions.




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Mosell Equities, LLC v. Berryhill & Co., Inc., 154 Idaho 269, 275, 297 P.3d 232, 238 (2013); see
also St. Alphonsus Diversified Care, Inc. v. MRI Assoc., LLP, 157 Idaho 106, 117 n.3, 334 P.3d
780, 791 n.3 (2014).
       In the present case, the jury was instructed that the State must prove that Thompson
recklessly used a firearm “producing the death” of Blair. A separate instruction said that the
State must prove that Thompson “unlawfully caused that death.” The jury was not, however,
instructed to consider the intricacies of the doctrines of proximate cause and intervening cause
that Thompson now asks this Court to apply to the evidence. Given the general instructions that
they received, the jury may have applied only an actual cause (but-for cause) standard to
determine Thompson’s guilt.
       Without considering the proximate cause and intervening cause doctrines, the evidence
was sufficient to support the jury’s finding that Thompson’s irresponsible handling of his firearm
“produced” Blair’s death. Whether the evidence would also have been sufficient to sustain a
verdict by a jury instructed on proximate cause and intervening cause is a different question and
one that we decline to address for the reasons stated.
B.     Thompson’s Sentence
       An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,
the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion.
State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such
an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice,
103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it
appears at the time of sentencing that confinement is necessary “to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,
rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650
P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed
an excessively harsh sentence, we conduct an independent review of the record, having regard
for the nature of 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).


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        Thompson argues the district court abused its discretion in sentencing him to fifteen years
with five years determinate because of his contributions to society, the limited ability to deter
other similar crimes from occurring, the lack of necessary rehabilitation, and punishment is not
necessary given the limited role he played in causing Blair’s death. Thompson also argues the
sentence is too harsh because he has taken responsibility for his actions, he has two children, he
is employable, and he has the support of his family.
        The district court carefully reviewed the facts of the case, considered the mitigating
information presented by Thompson, and concluded the sentence was necessary to achieve the
goals of sentencing. Having reviewed the record, this Court cannot say the district court abused
its discretion.
C.      Rule 35
        A motion for reduction of sentence under I.C.R. 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. Gill, 150 Idaho 183, 186, 244 P.3d 1269, 1272 (Ct. App. 2010). 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).
        Thompson submitted an article from The Idaho Statesman that described a less severe
sentence given to a defendant who also unintentionally shot and killed his friend. He argues that
the sentence given in that case is more appropriate than what he received in his case. Assuming
this submission constituted new evidence, having reviewed the record, we cannot say that the
district court abused its discretion in denying Thompson’s motion for leniency.
                                               III.
                                         CONCLUSION
        Without considering the proximate cause and intervening cause doctrines, the evidence
was sufficient to support the jury’s finding that Thompson’s irresponsible handling of his firearm
“produced” Blair’s death. Additionally, the court did not abuse its discretion in sentencing


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Thompson or in denying his motion for leniency.   Therefore, Thompson’s judgment of
conviction and sentence is affirmed.
       Chief Judge GUTIERREZ and Judge LANSING CONCUR.




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