               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38203

STATE OF IDAHO,                                  )     2012 Unpublished Opinion No. 426
                                                 )
       Plaintiff-Respondent,                     )     Filed: March 30, 2012
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
JOBY LEE HANNER,                                 )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
       Defendant-Appellant.                      )     BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Jefferson County. Hon. Gregory W. Moeller, District Judge.

       Judgment of conviction and unified sentence of five years, with a minimum
       period of confinement of four years, for leaving the scene of an injury
       accident, affirmed.

       Thompson Smith Woolf & Anderson, PLLC; Stevan H. Thompson, Idaho Falls,
       for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Judge
       Joby Lee Hanner appeals from his judgment of conviction for leaving the scene of an
injury accident. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       Evidence at trial showed that at about 9:00 p.m. on April 7, 2010, Brenda Fullerton
parked her white Dodge truck on the street in front of the post office in Ririe and went into the
post office to pick up her mail. Fullerton checked her post office box, and as she walked back to
her truck, she heard the “squealing of tires.” Fullerton walked to the door of her truck, and when
she looked up, she saw Hanner’s truck coming at her. Instead of opening her door, she turned to
run. However, after she took a couple of steps, the back-end of Hanner’s truck hit her and




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smashed her into her own truck. Hanner continued to drive off, with the tires of his truck still
“burning,” as Fullerton lay on the ground.
          Fullerton suffered two broken ribs, four broken bones in her lower back, and massive soft
tissue bruising. She was initially released from the hospital after three days, but two weeks later,
she had to be re-hospitalized due to a pulmonary embolism.
          There were two eye witnesses to the incident. Justin Mangis was at the Maverick store
across the street from the post office that same evening and saw Hanner walk out of the
Maverick store and get into his truck. Mangis then witnessed that Hanner “started squealing his
tires right at the gas pump and headed out onto the road and when he was headed out lost kind of
control and hit the lady, Brenda Fullerton.” Justin testified that when Hanner’s truck spun out of
control, the back-end of the truck hit Fullerton as she turned to run away from her own truck.
          Brandy Hayes was working as a cashier at the Maverick store at the time of the incident.
She observed Hanner get into his truck and as he drove away “the tires just spun, like laid rubber
on the pavement, and he spun out around the gas pump . . . and he fishtailed out of the parking
lot and then out on the road . . . .” Brandy testified that when the rear-end of Hanner’s truck
swung back around toward the post office, she saw a white Dodge truck, parked in front of the
post office, rock back and forth like it had been hit. Brandy wrote down the license plate number
of Hanner’s truck as it came around the corner.
          It was determined the truck was registered to Hanner, whereupon an arrest warrant was
issued for his arrest. Hanner was charged with leaving the scene of an injury accident, Idaho
Code § 18-8007. After a jury trial, Hanner was convicted as charged. Hanner was sentenced to
a unified term of five years, with four years determinate. Hanner timely appealed.
                                                  II.
                                             ANALYSIS
A.        Sufficiency of the Evidence
          Hanner argues on appeal that the jury’s verdict finding him guilty of leaving the scene of
an injury accident was not supported by adequate evidence. Hanner specifically claims the
evidence failed to prove he knew, or had reason to know, that his vehicle hit and injured the
victim.
          An appellate court will not set aside a judgment of conviction entered upon a jury verdict
if there is substantial evidence upon which a rational trier of fact could have found the essential


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elements of the crime beyond a reasonable doubt. State v. Sheahan, 139 Idaho 267, 285, 77 P.3d
956, 974 (2003); State v. Reyes, 121 Idaho 570, 572, 826 P.2d 919, 921 (Ct. App. 1992). The
appellate court will not substitute its view for that of the jury as to the credibility of the witness,
the weight to be given to the testimony, and the reasonable inferences to be drawn from the
evidence. State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App. 1991); State v.
Decker, 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct. App. 1985).
       Idaho Code § 18-8007 provides in relevant part:
                The driver of any vehicle that has been involved in an accident . . . who
       knows or has reason to know that said accident has resulted in injury to or death
       of any person shall: (a) immediately stop the vehicle at the scene of the
       accident . . . [and] (b) Remain at the scene of the accident until the driver has
       fulfilled all the requirements under this section.

Pursuant to statute, the relevant inquiry is limited to whether there is substantial evidence in the
record supporting the jury’s verdict that Hanner knew, or had reason to know, the accident
resulted in injury or death of a person. I.C. § 18-8007.
       Fullerton’s account of the accident was as follows:
               I went in to get my mail and I got my mail and I came out and I heard this
       squealing of tires, and to me, I thought to myself there must be a 16-year-old kid
       that just got his dad’s truck for the night and doesn’t have to pay for these tires
       because he was just burning them as hard as he could and it scared me. I was like,
       wow, I’m getting out of here before that idiot gets on the road. And as fast as he
       was going, I thought there was no way he could come my direction and he would
       have been going the other way . . . so I was just hurrying to get into my truck.
               And I walked around the front of my truck and I got to my door and
       something said don’t open that door, and I looked up and he’s coming right at me
       and at first I was [sic] slow motion and it happened so fast and his headlights were
       right in my eyes, and I mean I was like, wow, and I didn’t open my door, I turned
       to run and I took two steps and the back end of his truck struck me and just
       smashed me up against my truck, slid me across the front and flipped me up in the
       air and down on the ground and he’s still burning his tires, just left and left me
       there laying on the ground.

More specifically, Fullerton testified that the headlights from Hanner’s truck were “directly in
my eyes,” and explained, “If he didn’t see me, he had his eyes shut. I couldn’t see for [sic] light,
that’s how close he was to me.” Hanner’s trial counsel asked Fullerton to explain why she
believed Hanner “knew he hit you,” and she responded:




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                 Because anytime I’m driving anything in my lights, even a mouse that
          runs across the road, you can see it. You can’t tell me that I seen four headlights
          in my eyes and he didn’t see me. I find that so hard to believe.

          Fullerton’s testimony gave the jury substantial evidence that Hanner knew, or had reason
to know, his truck had struck and injured her before he left the accident scene. Although Hanner
did not admit he actually knew his truck hit and injured Fullerton, the testimony of the eye
witnesses presented at trial provided substantial evidence whereby a jury could have reasonably
concluded he knew, or had reason to know, Fullerton was hit and injured by his truck.
B.        Jury Instruction on Lesser Included Offense
          Hanner claims the district court erred by failing to instruct the jury on the lesser included
offense of reckless driving. An offense is deemed a lesser included offense of another greater
offense if all the elements required to sustain a conviction of the lesser included offense are
included within the elements of the greater offense or if in committing an offense one necessarily
commits a second offense. State v. Cariaga, 95 Idaho 900, 902, 523 P.2d 32, 34 (1974). There
are two theories by which an offense may be deemed a lesser included offense--statutory theory
and pleading theory. State v. Flegel, 151 Idaho 525, 261 P.3d 519 (2011); State v. Cochran, 149
Idaho 688, 690, 239 P.3d 793, 795 (Ct. App. 2010).
          Under the statutory theory, a crime may be a lesser included offense if its elements are
necessarily included in the greater crime, as the greater crime is defined by statute. Cochran,
149 Idaho at 690, 239 P.3d at 795. See also State v. Curtis, 130 Idaho 522, 524, 944 P.2d 119,
121 (1997) (“For an offense to be an included offense of a charged offense under the statutory
theory, it must be impossible to commit the greater offense without having committed the lesser
offense.”) The offense of leaving the scene of an injury accident can be committed without the
driver of the vehicle involved in an accident having driven recklessly. Idaho Code § 18-8007
requires that the driver of any vehicle that has been involved in an accident who knows, or has
reason to know, that said accident has resulted in injury to or death of any person to stop at the
scene of the accident and remain until the driver has fulfilled all the requirements listed under the
statutory provisions. I.C. § 18-8007(1)(a)-(e). Because there is no element of reckless (or even
negligent) driving that must be proven in order to commit the crime of leaving the scene of an
injury accident, reckless driving is not a lesser included offense of that crime under the statutory
theory.



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       Under the pleading theory, an offense is an included offense if the State has pled the
elements of the lesser included offense as the means whereby the defendant committed the
greater offense. Curtis, 130 Idaho at 524, 944 P.2d at 121. The information in Hanner’s case
alleged that Hanner “was the driver of a vehicle involved in an accident at 110 West Ririe
Highway, and willfully failed to stop, remain, give information, and render aid, knowing or
having reason to know that a person was injured as a result of the accident.” The information
made no mention of any culpable driving, much less reckless driving. Hanner has failed to show
the district court erred in denying his request to instruct the jury that reckless driving is a lesser
included offense to the crime of leaving the scene of an injury accident.
C.     Due Process Violation Based on Lost Evidence
       For the first time on appeal, Hanner argues that his due process right to a fair trial was
violated because the State recorded over the tape recording of his interview by Officer Williams.
Generally, Idaho’s appellate courts will not consider error not preserved for appeal through an
objection at trial. State v. Perry, 150 Idaho 209, 224, 245 P.3d 961, 976 (2010) (citing State v.
Johnson, 126 Idaho 892, 896, 894 P.2d 125, 129 (1995)). Nor will Idaho’s appellate courts
“review a trial court’s alleged error on appeal unless the record discloses an adverse ruling which
forms the basis for the assignment of error.” State v. Fisher, 123 Idaho 481, 485, 849 P.2d 942,
946 (1993); see also State v. Olson, 138 Idaho 438, 442, 64 P.3d 967, 971 (Ct. App. 2003) (citing
State v. Barnett, 133 Idaho 231, 235, 985 P.2d 111, 115 (1999)). We note that Hanner failed to
make any objection on the record or file an appropriate motion upon learning that the tape
recording of his interview with Officer Williams no longer existed because it was recorded over
with other matters.
       An exception to the principle that an objection to a constitutional violation must be made
in the trial court exists if the alleged error is fundamental. Perry, 150 Idaho at 224, 245 P.3d at
976. The burden of demonstrating fundamental error rests squarely with the defendant asserting
the error for the first time on appeal. Id. at 228, 245 P.3d at 980; State v. Severson, 147 Idaho
694, 716-17, 215 P.3d 414, 436-37 (2009). To carry that burden, a defendant claiming error for
the first time on appeal must demonstrate that the error he alleges “(1) violates one or more of
[his] unwaived constitutional rights; (2) plainly exists (without the need for any additional
information not contained in the appellate record, including information as to whether the failure
to object was a tactical decision); and (3) was not harmless.” Perry, 150 Idaho at 228, 245 P.3d


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at 980. However, Hanner has not presented any argument on appeal that the recording-over of
his taped interview constitutes fundamental error under the standards articulated in Perry. A
party waives an issue on appeal if either authority or argument is lacking. State v. Zichko, 129
Idaho 259, 263, 923 P.2d 966, 970 (1996).
D.      Excessive Sentence
        The district court imposed a sentence of five years, with four years determinate. Hanner
argues this sentence was an abuse of the district court’s discretion, contending he should have
been permitted to enter a specialty court program. Hanner offers mitigating evidence in that he
intended no harm to the victim, he had taken responsibility for his crime by turning himself in to
law enforcement after he learned Fullerton had been injured, and he expressed extreme remorse
for her injuries.
        Sentencing is a matter for the trial court’s discretion. Both our standard of review and the
factors to be considered in evaluating the reasonableness of the sentence are well established and
need not be repeated here. See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011,
1014-15 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App.
1984); State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (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). Applying these standards, and having reviewed the record
in this case, we cannot say that the district court abused its discretion.
                                                 III.
                                          CONCLUSION
        We conclude the testimony presented at trial provided substantial evidence whereby a
jury could have reasonably concluded Hanner knew, or had reason to know, that Fullerton was
hit and injured by his truck. We also conclude the district court did not err in failing to instruct
the jury on the lesser included offense of reckless driving. Because Hanner failed to present any
argument on appeal that the recording-over of his taped interview with Officer Williams
constituted fundamental error, the issue was waived. Further, we conclude the district court did
not abuse its discretion in sentencing. Therefore, the judgment of conviction and sentence are
affirmed.
        Judge LANSING and Judge MELANSON CONCUR.




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