               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                   Docket Nos. 39402/39403

STATE OF IDAHO,                                  )      2012 Unpublished Opinion No. 676
                                                 )
       Plaintiff-Respondent,                     )      Filed: October 16, 2012
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
ANTHONY JOEL CHILDERS,                           )      THIS IS AN UNPUBLISHED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, Cassia
       County. Hon. Michael R. Crabtree, District Judge.

       Order denying motion for psychological evaluation, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Anthony Joel Childers pleaded guilty to rape and attempted strangulation. On appeal, he
asserts that the district court erred when it denied his motion for a psychological evaluation for
sentencing purposes. We affirm.
                                                I.
                                        BACKGROUND
       This appeal encompasses two consolidated criminal cases. In the first case Childers, then
twenty-eight years old, was charged with rape, Idaho Code § 18-6101, and sexual battery of a
minor child sixteen or seventeen years of age, I.C. § 18-1508A(1)(a). The second case involved
an altercation between Childers and his girlfriend occurring two weeks after the first offenses,
where Childers was charged with attempted strangulation, I.C. § 18-923; misdemeanor domestic
battery, I.C. § 18-918(3)(b); and misdemeanor malicious injury to property, I.C. § 18-7001. At a
consolidated hearing, Childers pleaded guilty to rape and attempted strangulation and, pursuant

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to a plea agreement, the remaining charges were dismissed.           The district court ordered the
preparation of a presentence investigation report (PSI) and a psychosexual evaluation (PSE) for
sentencing purposes and scheduled a sentencing hearing.
       Based on information in the PSE and the PSI, at the scheduled sentencing hearing
Childers requested that the district court order a psychological evaluation pursuant to I.C. § 19-
2522 before imposing sentence. The district court denied the request. Childers appeals from the
judgments of conviction, challenging only the district court’s denial of his motion for a
psychological evaluation.
                                               II.
                                          ANALYSIS
       Idaho Code § 19-2522 specifies that “[i]f there is reason to believe the mental condition
of the defendant will be a significant factor at sentencing and for good cause shown,” the court
must appoint a psychiatrist or psychologist to evaluate and report upon the defendant’s mental
condition to inform the court’s sentencing decision. The requirements of I.C. § 19-2522 are
complimented by Idaho Criminal Rule 32 which specifies the elements to be included in the
presentence report. These elements include information on the health of the defendant where
relevant to the sentencing decision, I.C.R. 32(b)(8), and, where appropriate, the presentence
investigator’s   analysis   and   recommendation     regarding   a    psychological   examination,
I.C.R. 32(b)(10). The decision whether to obtain a psychological evaluation lies within the
sentencing court’s discretion. State v. Hanson, 152 Idaho 314, 319, 271 P.3d 712, 717 (2012);
State v. Durham, 146 Idaho 364, 366, 195 P.3d 723, 725 (Ct. App. 2008); State v. Craner, 137
Idaho 188, 189, 45 P.3d 844, 845 (Ct. App. 2002). A district court’s election not to order a
psychological evaluation will be upheld on appeal if the record can support a finding that there
was no reason to believe a defendant’s mental condition would be a significant factor at
sentencing or if the information already before the court adequately met the requirements of I.C.
§ 19-2522(3). Durham, 146 Idaho at 366, 195 P.3d at 725; State v. Collins, 144 Idaho 408, 409,
162 P.3d 787, 788 (Ct. App. 2007); Craner, 137 Idaho at 189, 45 P.3d at 845.
       Childers’ argument that his mental condition was a significant factor for sentencing, and
therefore that a Section 19-2522 psychological evaluation was necessary, is predicated on
information found in the PSE and the PSI. Childers told the evaluator that in his childhood he
“was diagnosed as meeting criteria for Attention Deficit Hyperactivity Disorder and Bipolar


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Disorder due to his mood swings” and that he had been on medication when he was in foster
care. He said he had not taken any mental health medication during his ten years as an adult.
The PSE also notes that Childers said he was under the influence of alcohol when he committed
the rape, and he admitted abusing alcohol, methamphetamine, and other illegal drugs as an adult.
The evaluator concluded that “Childers does not meet criteria for a DSM-IV diagnosis for a
major medical illness,” but that “he does evidence symptoms of a substance abuse disorder.”
The evaluator recommended a “psychiatric evaluation to determine if psychotropic medications
would be of benefit to him” as “his substance abuse issues may be his attempt to self-medicate
and cope with his negative emotion.”         Childers also told the PSI evaluator that he was
intoxicated when he committed his offenses.
       In denying Childers’ request for a psychological evaluation, the district court stated that
there was no indication that Childers suffered from a “major mental illness” and that the court
“didn’t see anything to indicate that there was some overriding or overbearing psychological
diagnosis that was at play here.” Childers argues that this decision was error because the record
shows that his mental condition was a significant factor for sentencing.
       We are not persuaded that the district court erred. A psychological evaluation is not
required in every case where the defendant claims some mental illness or disability. See, e.g.,
State v. Adams, 137 Idaho 275, 278, 47 P.3d 778, 781 (Ct. App. 2002) (holding that letters from
defendant’s mother and sister stating that defendant had extreme mood swings, had a history of
suicide attempts, and had received mental health treatment in the past for manic depression did
not establish that defendant’s mental condition would be a significant factor at sentencing); State
v. Hyde, 127 Idaho 140, 150, 898 P.2d 71, 81 (Ct. App. 1995) (holding that defendant’s
argument that a psychological evaluation could potentially identify “things that we may be able
to bring forth in front of the court for the court’s consideration in sentencing” did not indicate a
psychological evaluation was needed); State v. Wolfe, 124 Idaho 724, 726-28, 864 P.2d 170, 172-
74 (Ct. App. 1993) (rejecting argument on appeal that presentence report was inadequate because
it did not contain a psychological evaluation). In the exercise of its discretion, a sentencing court
may appropriately determine that milder mental disorders and behaviors are not “significant”
with respect to the commission of a criminal offense or to the court’s ultimate sentencing
determination. See generally Hanson, 152 Idaho at 320, 271 P.3d at 718.




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       The record supports the district court’s conclusion that Childers’ mental health would not
be a significant factor at sentencing. As evidence that he suffers from a significant mental
disorder, Childers relies entirely upon his own self-report to the PSE evaluator and the PSI
investigator that as a child he was diagnosed with ADHD and Bipolar Disorder. Childers
presented no compelling evidence that he suffered from either affliction at the time of his
offenses and he admitted that he had not taken any medication for these disorders during the
previous ten years.    The information from Childers was countered by the psychosexual
evaluator’s conclusion that Childers did not suffer from a major medical illness but instead
evidenced a substance abuse disorder. The psychosexual evaluator’s recommendation of a
psychiatric evaluation was not for determination of whether Childers suffered from a serious
mental illness but was only to determine whether psychotropic medication would help him deal
with his “negative emotions” for which he might be self-medicating with illegal substances. The
PSI investigator expressed no concern about the need for a psychological evaluation, and neither
the PSE evaluator nor the PSI investigator gave any indication that, during their interviews,
Childers was communicating or acting inappropriately. Nothing in the record indicates that
Childers engaged in bizarre behavior either inside or outside of the courtroom. At his change of
plea hearing Childers told the court that he did not believe or suspect that he suffered from a
mental illness and, when questioned by the court, Childers responses were normal and gave no
indication of mental illness or confusion.     Finally, the district court made no mention of
Childers’ mental condition when imposing sentence.
       On this record, we find no error in the district court’s implicit determination that Childers
did not suffer from a mental condition that would be a significant factor at sentencing.
Therefore, the district court did not abuse its discretion in refusing Childers’ request for a
psychological evaluation. The order denying a psychological evaluation for sentencing purposes
is affirmed.
       Chief Judge GRATTON and Judge MELANSON CONCUR.




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