                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket Nos. 39526/40237

STATE OF IDAHO,                                    )     2013 Unpublished Opinion No. 661
                                                   )
          Plaintiff-Respondent,                    )     Filed: September 5, 2013
                                                   )
v.                                                 )     Stephen W. Kenyon, Clerk
                                                   )
CHARLES ALLEN VAUGHN, JR.,                         )     THIS IS AN UNPUBLISHED
                                                   )     OPINION AND SHALL NOT
          Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                   )

          Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
          County. Hon. Cheri C. Copsey, District Judge.

          Orders denying motion to modify no-contact order and motion to reduce
          sentence, affirmed.

          Nevin, Benjamin, McKay & Bartlett, LLP; Deborah A. Whipple, Boise, for
          appellant.

          Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
          Attorney General, Boise, for respondent.
                    ________________________________________________
LANSING, Judge
          In consolidated appeals, Charles Allen Vaughn, Jr., challenges the district court’s denial
of his motion to modify a no-contact order and his motion for reduction of his sentence. We
affirm.
                                                  I.
                                          BACKGROUND
           The issues presented in the current appeal originate from a domestic battery Vaughn
committed against his wife, T.V. The 911 call from T.V. recorded most of the confrontation.
During the episode, Vaughn pushed T.V. onto the bed and strangled her. As T.V. struggled,
Vaughn grabbed her by the hair and hit her in the face. When T.V.’s eight-year-old son tried to
help her, Vaughn dragged him by the neck and arm and threw him onto the bed also. Vaughn
then picked up a pillowcase and told the boy, “I’m going to kill you.” During the altercation,


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Vaughn accused T.V. of sleeping around and using drugs. Throughout the recording, children
can be heard screaming and crying in the background. Responding officers not only saw
evidence of injury on both T.V. and her son, but also found Oxycontin and methamphetamine at
the home.
       Vaughn was charged with attempted strangulation, Idaho Code § 18-923; domestic
violence in the presence of children, I.C. §§ 18-903, 18-918; and two counts of possession of a
controlled substance, I.C. § 37-2732(c)(1).           The information was later amended to add
misdemeanor injury to a child, I.C. § 18-1501(2), and resisting and obstructing officers, I.C.
§ 18-705.   A no-contact order (NCO) was issued prohibiting Vaughn from contacting his
children or T.V. In spite of the NCO, Vaughn was adamant about getting in touch with T.V. and
his children. In a telephone conversation, Vaughn asked his parents to persuade T.V. not to
testify at trial. He also sent letters to his parents to be forwarded to T.V. He sent letters to T.V.’s
address “C/O Charles Vaughn,” and contacted the family members of other inmates, asking them
to “keep an eye on” T.V. He even contacted a sixteen-year-old girl from T.V.’s neighborhood,
seeking to have her spy on T.V. and the children.
       Eventually, a plea agreement was reached whereby Vaughn agreed to plead guilty to
domestic battery in the presence of children, and the State agreed not to pursue a charge of
witness intimidation and to dismiss the drug possession charges and charges for attempted
strangulation, resisting and obstructing officers, and injury to children.
       The court ordered mental health and domestic violence evaluations. The mental health
assessment found that Vaughn had anger problems and was mad that he could not get back with
his wife. The mental health assessment also found that Vaughn was polysubstance dependent
and had a depressive disorder and a personality disorder with antisocial and histrionic features.
Vaughn was assessed as a moderate to high risk to reoffend.
       The domestic violence evaluation found that Vaughn was impulsive and lacked control
over his aggressive impulses. It noted that he superficially expressed remorse but appeared to be
“more focused on gaining positive recommendations rather than experiencing remorse about
the . . . violence toward his wife and his children.” The assessment also noted that Vaughn
minimized his violence toward his entire family in the current incident as well as his past
violence, and that “Vaughn’s profile suggests that he is an extremely high risk for domestic
violence as well as for violence towards members of the community at large.”


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       On December 30, 2009, Vaughn was sentenced to a twenty-year term of imprisonment
with five years fixed. On the same date, the court entered a new NCO prohibiting Vaughn from
any contact with T.V. or with certain of his children and stepchildren until December 30, 2029.
The court also noted that the NCO’s protection of Vaughn’s biological daughter was necessary
because he had made specific threats against her.
       In July 2010, Vaughn filed a pro se motion to modify the NCO to allow contact with his
children and stepchildren through letters and telephone calls. The court denied the motion. On
September 14, 2011, Vaughn filed a second motion to modify the NCO to allow written and
telephone contact with his daughter, W.V. The court again denied the motion.
       On November 7, 2011, Vaughn filed a third motion to modify the NCO to allow limited
contact with W.V. In his supporting affidavit, Vaughn argued that disallowance of any contact
with W.V. was not in her best interest, and would interfere with his ability to communicate with
family members with whom W.V. then resided. Vaughn attached copies of coursework he had
done while incarcerated to show his therapeutic progress. At the motion hearing, the court
recounted the facts of the case, as well as Vaughn’s history of prior batteries, domestic violence,
and violations of NCOs. The court also reviewed information from Vaughn’s prior mental
health assessment and domestic violence evaluation which found him to be a high risk for
violence and lacking empathy for others, and the court also noted that he had a record of poor
behavior while incarcerated in this case, including violations of the NCOs. The court then
denied the motion to modify the NCO.
       Vaughn also filed a motion under Idaho Criminal Rule 35 for a reduction of sentence. He
supported it with numerous letters attesting to his good character. The court denied the Rule 35
motion.
       Vaughn appeals from the denial of his two final motions to modify the NCO and the
denial of his Rule 35 motion. These appeals have been consolidated.
                                                II.
                                           ANALYSIS
A.     Modification of the No-Contact Order
       Vaughn argues that the district court erred in denying his motions to modify the NCO
because the court misunderstood the record before it, failed to recognize that modification was in
his daughter’s best interest, and failed to recognize Vaughn’s fundamental right as a parent.


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However, we take judicial notice that, during the pendency of this appeal, Vaughn’s parental
rights as to W.V. were terminated by a magistrate court’s decree that was affirmed by this Court
on appeal. Dep’t of Health & Welfare v. Doe, Docket No. 40786 (Ct. App. July 26, 2013)
(unpublished). 1   The termination of Vaughn’s parental rights renders his second and third
arguments moot.        Thus, we need only address whether the district court erred by
misunderstanding the record before it.
        A district court’s decision concerning whether to modify a NCO is reviewed under an
abuse of discretion standard. State v. Cobler, 148 Idaho 769, 771, 229 P.3d 374, 376 (2010).
The standard for considering whether the lower court abused its discretion is: (1) whether the
lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted
within the boundaries of such discretion and consistently with any legal standards applicable to
the specific choices before it; and (3) whether the lower court reached its decision by an exercise
of reason. Id.; State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
        Vaughn’s current argument stems from two statements made by the district court at the
motion hearing. Vaughn argues that these statements show that the district court fundamentally
misunderstood the record before it. We disagree.
        At that hearing, after hearing counsel’s arguments, the court recounted from memory the
facts of the case. It stated that, in the court’s recollection, “[Vaughn’s daughter] was a victim
and [Vaughn], in fact, threatened to kill [her],” and that Vaughn had “a long history of violence
against intimate partners.” The district court soon realized, however, that it had misspoken about
the victim being Vaughn’s daughter, and corrected its error. Further, the court reiterated the
facts of the case at length. This is clearly reflected in the transcript.
                THE COURT: Just a second.
                ....
                I’m going to--because you’re not familiar with the case, the facts in this
        case are particularly disturbing. On June 25th, 2009, in the early morning hours
        officer responded to a domestic violence report. The 911 call was recorded and
        this court listened to it as part of the sentencing.
                Vaughn pushed his wife down on the bed and began strangling her with
        his hands. He grabbed her by the hair, hit her in the head with a closed fist. He
        continued to strangle her.



1
       Pursuant to Idaho Rule of Evidence 201, this Court may take judicial notice of records
from another court case.

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               His eight-year-old son saw the fight and came to his mother’s aid.
       Vaughn dragged his son by the arm and the back of the neck and threw him on the
       bed. He picked up a pillowcase and told his son--and a lot of this can be heard on
       the tape--“I’m going to f---ing kill you.” Officers observed swelling--this is to his
       son. Officers observed swelling over Vaughn’s wife’s eyes, marks on her neck
       and later a bruise on her left thigh. Vaughn’s son had some reddened areas
       around the front of his neck and a deep red spot under his right ear. Much of the
       confrontation could clearly be heard on the 911 call.

       Vaughn’s contention that the district court misrepresented the facts when it stated that
Vaughn had a long history of domestic violence is also without merit. Vaughn’s PSI shows that
he was charged with misdemeanor domestic battery in Florida in July 2002 and again in July
2007. Apparently, neither charge was pursued by the Florida prosecutor, but the arrests remain a
record of allegations of domestic violence. Further, Vaughn’s children and stepchildren related
to police that he had been violent with T.V. in the past. Information in the PSI indicated that
T.V. moved with the children from Florida to Idaho to get away from Vaughn due to his
violence. Contrary to the implication in Vaughn’s argument on appeal, the district court did not
state that he had a history of domestic violence convictions. Rather, the court said that he “has a
long history of violence against intimate partners.” Information in the record supports that
assessment. To the extent that Vaughn felt that the court misunderstood those domestic violence
reports, he was present in court, as was his attorney, and had the opportunity to bring any
inaccuracy to the court’s attention then. The record does not indicate Vaughn did so. On appeal,
we will not second-guess a factual determination of the trial court which is supported by
substantial and competent evidence.       Contrary to Vaughn’s argument, the record does not
indicate that the district court misunderstood the record.
       Further, after reviewing the record we conclude that there was not an abuse of discretion.
In addition to Vaughn’s history of violence, there was information that he had threatened to kill
his children. He had sent a letter to his parents indicating that if released from incarceration he
might take W.V. and run away, and he violated the NCOs while incarcerated on numerous
occasions. The domestic violence evaluation indicated that he had “rage reactions” directed
against his intimate partner and children and a long history of impulsivity and lack of control
over aggressive impulses. On this record, the district court plainly did not abuse its discretion in
denying Vaughn’s motion for modification of the NCO to allow written and telephone
communications with W.V.


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B.      Rule 35 Motion
        Vaughn next argues that the court erred in denying his Rule 35 motion to reduce his
unified twenty-year sentence with five years determinate. 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. Allbee, 115 Idaho 845,
846, 771 P.2d 66, 67 (Ct. App. 1989). 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). Upon review of the record, we
conclude no abuse of discretion has been shown.
                                               III.
                                        CONCLUSION
        The district court did not abuse its discretion either in denying Vaughn’s motion to
modify the NCO or in denying Vaughn’s Rule 35 motion. Accordingly, the respective orders of
the district court are affirmed.
        Chief Judge GUTIERREZ and Judge GRATTON CONCUR.




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