                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                     Docket No. 43874-2016

STATE OF IDAHO,                                    )
                                                   )          Boise, September 2016 Term
       Plaintiff-Respondent,                       )
                                                   )          2016 Opinion No. 109
v.                                                 )
                                                   )          Filed: November 1, 2016
ROBERT DEAN HALL,                                  )
                                                   )          Stephen W. Kenyon, Clerk
       Defendant-Appellant.                        )
                                                   )

       Appeal from the District Court of the Fourth Judicial District of the State of
       Idaho, in and for Ada County. Hon. Michael R. McLaughlin, District Judge.

       The judgment of the district court is affirmed.

       Jason Pintler, Deputy State Appellate Public Defender, Boise, argued for Appellant.

       Lori A. Fleming, Deputy Attorney General, Boise, argued for Respondent.



EISMANN, Justice.
       This is an appeal out of Ada County from a judgment of conviction for the crime of
murder in the second degree. The primary issue on appeal is whether the district court properly
instructed the jury on the issue of self-defense. We hold that the district court did and affirm the
judgment of conviction.


                                               I.
                                      Factual Background.

       In September 2010, Kandi Hall (“Kandi”) was unemployed, having been fired by the law
firm where she had worked, and she wanted another paralegal job. Emmett Corrigan (“Emmett”)
was waiting to learn the results of the bar exam he had taken and wanted to hire a paralegal to
work for him when he began practicing law. They were introduced by a mutual friend. Kandi
and Emmett were immediately attracted to each other, and within two weeks they began having a
sexual relationship. Emmett passed the bar exam, and he hired Kandi in November 2010 to work
for him in the law office he had opened. Their torrid sexual relationship continued, including
having sexual intercourse in the law office, until March 11, 2012, when Kandi’s husband, Robert
Dean Hall (“Rob”), shot and killed Emmett in the parking lot of a pharmacy. A jury found Rob
guilty of murder in the second degree. Kandi testified at trial that she always loved her husband,
never intended to leave him, and was committed to their marriage.
        On March 11, 2012, Kandi had left work at about 6:00 p.m., and upon arriving home she
had discovered that Rob was in the garage packing large boxes. He told her that he had had it
with the way she had been so nonresponsive to their relationship the last few months. As they
continued their discussion, she admitted to having an affair with an attorney in Oregon, but she
later recanted that statement. He left their house at about 8:45 p.m., and she left shortly
thereafter. As she was backing out of their driveway, she had a phone conversation with
Emmett. She told him she was going to the pharmacy to pick up a prescription, and he stated
that he would meet her there.
        On March 11, 2012, Emmett had left work sometime after Kandi did. When he arrived at
home, his wife confronted him about their marital problems. He responded by becoming angry.
At some point, he had the telephone conversation with Kandi Hall. He told her he would meet
her at the pharmacy parking lot. He then told his wife that he had to go pick up a prescription
and left.
        After Kandi had picked up her prescription, she got into Emmett’s pickup.           After
stopping for gas, he began driving around.       He ultimately parked in a subdivision being
developed, where they had sexual intercourse for the second time that day. Kandi then received
a call from her older daughter, who wondered where she was. The daughter had seen Kandi’s
car in the pharmacy parking lot and had called Kandi, but Kandi had not answered the call. She
had then called Rob to ask where Kandi was. Kandi told her daughter that she was just driving
around with a female friend.
        As Emmett was driving back to the pharmacy parking lot, Kandi received a call from
Rob. Emmett grabbed her phone and asked Rob, “What’s up chief?” Kandi described Emmett’s
tone of voice as being aggressive. Kandi could only hear Emmett’s side of the conversation. He
said to Rob: “Yeah, we’re talking about life. Have you got a problem with that?” Kandi
described Emmett’s tone of voice as being derogatory, derisive, and challenging. Rob apparently
responded, and Emmett said to him, “Yeah, I’m going to crack your f***ing head.” Kandi


                                                2
described Emmett’s tone of voice as being threatening. Emmett then said, “Just wait there.
We’ll be right there.” Kandi described Emmett’s tone of voice as being aggressive.
       Emmett drove into the pharmacy parking lot shortly after 10:00 p.m. He parked, he and
Kandi got out of Emmett’s pickup, and Rob got out of his pickup. Rob had a compact, .380 ACP
caliber pistol with a laser sight. Rob was dressed in sweat pants and a black, pull-over hoodie
with a kangaroo pocket. Before getting out of his pickup, Rob had removed the pistol from the
holster in which he carried it in the pickup, left the holster there, and put the pistol in the
kangaroo pocket of his hoodie.
       Kandi was the only witness to what then occurred. Prior to the trial, she gave accounts of
what had occurred that differed from her trial testimony. During the final jury instruction
conference, the district court discussed its jury instruction regarding the use of such pretrial
statements. When doing so, the court stated, “Frankly, in my many years as a judge, I don’t
know that I’ve seen a witness to a case who has made so many conflicting statements and/or the
level of impeachment.” In ruling on Rob’s motion for a new trial, the district court again stated
with respect to Kandi’s credibility:

               Frankly, any testimony by Ms. Hall, in my 31 years on the bench I don’t
       think I’ve seen a witness more thoroughly discredited in the course of a
       proceeding. And the jury had a right to not consider that as evidence, that when
       she testified at the trial and said there was a very strong push, that she turned
       around, she heard some kind of grunting noises and then the firearm was
       discharged. They could have chosen to completely ignore that.

However, the central issue on appeal concerns whether the facts justified a particular instruction
on self-defense, and therefore we will state the facts in a manner most favorable to Rob, which is
Kandi’s trial testimony.
       She testified that after everyone was out of their respective vehicles, Emmett was
standing against his pickup, leaning backward against it with his arms crossed, and Rob walked
over to where Emmett and Kandi were, but he and Rob were “pretty far apart.” Rob asked,
“What’s going on?” and Emmett answered, “She doesn’t want to be with you, Rob.” Rob looked
at Emmett and asked, “She wants to be with you?” Emmett then made statements intended to
insult Rob and to incite him to fight, concluding with, “She doesn’t want to be with you.” Rob
looked at Kandi and said, “But you want to be—he has got five kids, Kandi.” He then looked at
Emmett and stated, “And your poor wife, she just had a baby, and she is at home while you’re


                                                3
out with my wife.” Emmett then lunged forward and pushed Rob in the chest with both hands,
but not forcefully enough to make him fall. Kandi stepped between them, told Emmett to get in
his pickup, told Rob they had to leave because their daughter called, turned around, and was
walking toward her car when she heard scuffling on the ground behind her. She then heard three
gunshots. She turned around and saw Rob standing with blood running down his face. He had
his pistol in his right hand, and he then collapsed, dropping the pistol. She later saw Emmett
lying on the ground.
       Rob had a grazing bullet wound on the top left side of his head. According to expert
medical testimony, although the bullet did not penetrate or fracture the skull, it caused a
traumatic brain injury, a moderate concussion. As a result, he suffered retrograde amnesia and
cannot recall what occurred. He did not testify at the trial, although statements he made to the
police shortly after the incident were admitted.
       Emmett had two gunshot wounds, one to the chest and one to the head. The bullet that
hit his chest passed through his sternum at the level of the fifth rib, through the right ventricle of
his heart, through the middle lobe of his left lung, and impacted his spinal column at the level of
the tenth thoracic vertebrae. It entered the bone, but did not hit the spinal cord. However, the
force transmitted to the spinal cord by the bullet impact would have cut off all electrical impulses
below the point of impact, and he would not have been able to move anything below that point.
He would have dropped to the ground as quickly as gravity could pull him down. From an
abrasion that he suffered on the right side of his forehead, it appears that he pitched forward
when he fell, hitting his head. This wound was fatal, but not immediately. The bullet that hit his
head entered his skull just inside the hairline of his upper right forehead, traveled in a slight
downward and leftward direction through the entire right side of his brain, and ended at the
bottom part of his brain on the right side. It too was a fatal wound, but not immediately. After
being shot, he could have lived for a short period of time.
       The appeal was initially heard by the Idaho Court of Appeals, which upheld the judgment
of the district court. We then granted Rob’s petition for review. In cases that come before this
Court on a petition for review of a decision of the Court of Appeals, we do not review the
decision of the Court of Appeals. State v. Suriner, 154 Idaho 81, 83, 294 P.3d 1093, 1095
(2013). We hear the case anew as if the appeal had initially come directly to this Court. Id.




                                                   4
                                                  II.
                  Did the District Court Err in Instructing the Jury on Self Defense?

           The law relevant to self-defense in a homicide case is set forth in Idaho Code sections 18-
4009 and 18-4010. The applicable portions of section 18-4009 and section 18-4010 are as
follows:
           Idaho Code section 18-4009:
                   Homicide is also justifiable when committed by any person in either of the
           following cases:
                   1. When resisting any attempt to murder any person, or to commit a
           felony, or to do some great bodily injury upon any person; or,
                   2. When committed in defense of . . . person, against one who manifestly
           intends or endeavors, by violence or surprise, to commit a felony . . . ; or,
                   3. When committed in the lawful defense of such person . . . when there is
           reasonable ground to apprehend a design . . . to do some great bodily injury, and
           imminent danger of such design being accomplished . . . ;

           Idaho Code section 18-4010:
                   A bare fear of the commission of any of the offenses mentioned in
           subdivisions 2 and 3 of the preceding section, to prevent which homicide may be
           lawfully committed, is not sufficient to justify it. But the circumstances must be
           sufficient to excite the fears of a reasonable person, and the party killing must
           have acted under the influence of such fears alone.

           The issue is the failure of the district court to instruct the jury regarding subsection (1) of
Idaho Code section 18-4009. The reason it is an issue is that Idaho Code section 18-4010 does
not apply to that subsection, so there is no requirement that “the circumstances must be sufficient
to excite the fears of a reasonable person, and the party killing must have acted under the
influence of such fears alone.”
           On October 4, 2012, the defense filed its proposed jury instructions and a memorandum
supporting the proposed instructions. The proposed jury instructions included an instruction on
justifiable homicide that was based upon subsections (1), (2), and (3) of Idaho Code section 18-
4009.1 In the accompanying memorandum, the defense argued that the jury instruction based


1
    The relevant portion of the proposed instruction was as follows:

                     The defendant contends, as a defense to the above crimes, that the killing was justifiable
           because the defendant was resisting an attempt to do great bodily harm, was defending himself
           against a design to do great bodily harm, and/or was defending himself when reasonable grounds
           existed to apprehend a design to do great bodily harm.
                     Under the law, homicide is justifiable in anyone of the following three (3)

                                                            5
upon section 18-4009(1) was supported by Kandi’s testimony that Emmett made statements
enticing Rob to fight and that he pushed Rob in the chest with both hands prior to being killed.
           The defense also argued in the memorandum that an excusable homicide instruction
should be given as defined in Idaho Code section 18-4012 based upon anticipated evidence
showing that the shooting was accidental. Excusable homicide is one committed by accident or
misfortune under the circumstances described in the statute.2
           The district court did not instruct the jury regarding self-defense as set forth in subsection
(1) of Idaho Code section 18-4009. The court’s instruction, which was based upon Idaho
Criminal Jury Instruction No. 1517, stated as follows:

                   A homicide is justifiable if the defendant was acting in self-defense.




           circumstances.
                                                             I.
                   The homicide was committed while resisting an attempt to do great bodily injury
                   upon any person, including the defendant.
                                                             II.
                   The homicide was committed in defense of a person, including the defendant,
                   against one who manifestly intends or endeavors, by violence or surprise, to
                   commit a felony. The circumstances must be sufficient to create a fear in a
                   reasonable person and the defendant must have acted under the influence of such
                   fears alone.
                   ....
                                                            III.
                   The homicide was committed in the lawful defense of the defendant when there
                   are reasonable grounds to apprehend a design to do some great bodily injury and
                   imminent danger of such design being accomplished. The circumstances must
                   be sufficient to create a fear in a reasonable person and the defendant must have
                   acted under the influence of such fears alone.

                     If the homicide appears to be justifiable, the defendant must, upon his trial, be fully
           acquitted and discharged. The burden is on the prosecution to prove beyond a reasonable doubt
           that the homicide was not justifiable. If there is a reasonable doubt whether the homicide was
           justifiable, you must find the defendant not guilty.
2
    Idaho Code section 18-4012 states:

           Homicide is excusable in the following cases:
                  1. When committed by accident and misfortune in doing any lawful act by lawful means,
                  with usual and ordinary caution, and without any unlawful intent.
                  2. When committed by accident and misfortune, in the heat of passion, upon any sudden
                  and sufficient provocation, or upon a sudden combat when no undue advantage is taken
                  nor any dangerous weapon used, and when the killing is not done in a cruel or unusual
                  manner.



                                                          6
                In order to find that the defendant acted in self-defense, all of the
       following conditions must be found to have been in existence at the time of the
       killing:
                1. The defendant must have believed that the defendant was in imminent
       danger of death or great bodily harm.
                2. In addition to that belief, the defendant must have believed that the
       action the defendant took was necessary to save the defendant from the danger
       presented.
                3. The circumstances must have been such that a reasonable person, under
       similar circumstances, would have believed that the defendant was in imminent
       danger of death or great bodily injury and believed that the action taken was
       necessary.
                4. The defendant must have acted only in response to that danger and not
       for some other motivation.
                5. When there is no longer any reasonable appearance of danger, the right
       of self-defense ends.
                In deciding upon the reasonableness of the defendant’s beliefs, you should
       determine what an ordinary and reasonable person might have concluded from all
       the facts and circumstances which the evidence shows existed at that time, and not
       with the benefit of hindsight.
                The danger must have been present and imminent, or must have so
       appeared to a reasonable person under the circumstances. A bare fear of death or
       great bodily injury is not sufficient to justify a homicide. The defendant must
       have acted under the influence of fears that only a reasonable person would have
       had in a similar position.

Rob contends on appeal that the failure to instruct on self-defense as set forth in subsection (1) of
Idaho Code section 18-4009 requires that his judgment of conviction be vacated and that he be
granted a new trial.
       Rob did not object to the failure to instruct the jury regarding self-defense as set
forth in Idaho Code section 18-4009(1). Rule 30(b) of the Idaho Rules of Criminal Procedure
requires the trial court to inform counsel of the court’s proposed actions with respect to requested
instructions and to give the parties an opportunity to “make objections outside the presence of
the jury to such instructions or the failure to give requested instructions.” Id. The rule also
states, “No party may assign as error the giving of or failure to give an instruction unless the
party objects thereto before the jury retires to consider its verdict, stating distinctly the
instruction to which the party objects and the grounds of the objection.”
        The presentation of evidence began on October 10, 2012, and the State rested during the
afternoon of October 19, 2012. After the jury was dismissed for the day, the district court held a
conference to discuss its proposed jury instructions. The court began by stating: “We’re just

                                                 7
going to go over proposed jury instructions a little bit. Again, it’s not our final instructions
conference.   I’ve given you a clean copy of the instructions.”        At the conclusion of this
conference, the court asked both sides if they had any additional instructions. Defense counsel
Mr. Chastain asked if the court was denying the defense’s justifiable homicide instruction, and
the court stated it would take a look at it. The exchange was as follows:

       THE COURT: Now, did the state have any other proposed instructions other than
       [IDJI] 318 as noted earlier by Ms. Lorello?
       MS. LORELLO: No, Your Honor.
       THE COURT: No additional instructions? Defense?
       MR. CHASTAIN: Your Honor, I think we had made a request as to justifiable or
       excusable homicide in our request. Is the court declining to give those?
       THE COURT: Well, now, let’s take a look at the instruction on self-defense.
       That’s Instruction 30: “A homicide is justifiable if the defendant was acting in
       self-defense.” You’re saying you want the additional instruction on justifiable
       homicide?
       MR. CHASTAIN: I believe we requested it. I didn’t bring that with me.
       THE COURT: I’ll take a look at that. I’ll take a look at that.

       The parties concluded their presentation of evidence during the mid-morning of October
23, 2012. After the jury was dismissed for the day, the district court had another jury instruction
conference. During the conference, the court brought up its excusable homicide instruction,
which was proposed instruction No. 36. The court read the instruction as follows:

               Under the law, homicide is justifiable if any one of the following
       circumstances occur: the homicide was committed while resisting an attempt to
       do great bodily injury to the defendant; or the homicide was committed in
       defending oneself against one who manifestly intends or endeavors, by violence
       or surprise, to commit a felony.
               However, the bare fear of such acts is not sufficient unless the
       circumstances are sufficient to create such a fear in a reasonable person if the
       defendant acted under the influence of such fears alone.

       The first paragraph of proposed instruction No. 36 set forth two circumstances in which a
homicide was justifiable. The first circumstance was if “the homicide was committed while
resisting an attempt to do great bodily injury to the defendant” (based upon subsection (1) of
Idaho Code section 18-4009), and the second circumstance was if “the homicide was committed
in defending oneself against one who manifestly intends or endeavors, by violence or surprise, to
commit a felony” (based upon subsection (2) of Idaho Code section 18-4009). The second
paragraph was based upon Idaho Code section 18-4010, but the instruction did not limit the


                                                8
application of the second paragraph to the circumstance that was based upon subsection (2) of
Idaho Code section 18-4009.            The second paragraph would have erroneously applied to
circumstances constituting justifiable homicide in the first paragraph.3 The court also had a
separate self-defense instruction, which was based upon subsection (3) of Idaho Code section 18-
4009.
        After it read aloud proposed instruction No. 36, the court noted that the State had
objected that this instruction was duplicative of the court’s self-defense instruction, which was
proposed instruction No. 38.          Defense counsel Ms. Kristal did not make any objection to
proposed instruction No. 36. Instead, she stated that the court also needed to give an instruction
on excusable homicide. She explained the need for an instruction on excusable homicide as
follows:

        MS. KRISTAL: Which is also why we think the court needs to give the
        excusable homicide because it’s clear that Mr. Hall doesn’t know what happened.
        He only knows that he was in a fight and he got shot. The wife’s boss shot him.
        The jury has to decide whether the shooting was accidental. Was it self-defense
        or was it, as the state says, that he was lying in wait and murdered Mr. Corrigan?
                We think that all of the evidence the jury has heard permits all of those
        instructions. Therefore, we would request that the judge continue to give
        excusable and justifiable and a self-defense instruction.

        The court responded by explaining why it thought proposed instruction No. 38 was
adequate. It stated:

        THE COURT: Well, because now when I look at Instruction 38, which is self-
        defense, that he believed—the defendant believed he was in imminent danger of
        death or great bodily harm—which again, while resisting an attempt to do great
        bodily harm to the defendant, that seems to be included in that. And then the
        homicide was committed in defending oneself against one who manifestly intends
        or endeavors by violence or surprise to commit a felony.
                Again, we have Part 1 of the self-defense. We have Part 3, “reasonable
        person under similar circumstances would have believed that the defendant was in
        imminent danger of death or great bodily injury and believed that the action taken
        was necessary.” And it does cover that as well under—you can’t just have a bare
        fear of such acts. Again, it gets back to that reasonable person standard. Would
        you agree?
                I mean, that’s what I’m seeking clarification of. It just seems to me, and
        originally I just gave the justifiable homicide self-defense instruction because I

3
  Idaho Code section 18-4010 does not apply to justifiable homicide committed under the circumstance set forth in
subsection (1) of Idaho Code section 18-4009.

                                                       9
       thought not only was it consistent with all of the theories—or I shouldn’t say
       theories, all of the potential reasonable construction of the evidence that it
       covered. Justifiable homicide. Am I wrong?

       Ms. Kristal responded that proposed instructions Nos. 36 and 38 covered justifiable
homicide, but there needed to be an instruction on excusable homicide.

       MS. KRISTAL: Your Honor, I’ll concede that both 36 and 38 cover justifiable
       homicide, but they don’t cover excusable homicide. And under the evidence—

       The district court then discussed the issue of excusable homicide. Ms. Kristal repeatedly
argued that there was a need for an excusable homicide instruction because the killing may have
been accidental.

       MS. KRISTAL: Well, Your Honor, the evidence that is before the court, which
       has not been refuted, is that the gun falls out, Mr. Corrigan shoots my client.
       That’s before the court. That’s what he knows. He doesn’t know how Mr.
       Corrigan gets shot. But the shooting is—it’s believed that the shooting is
       accidental.
              I think we do have excusable homicide. We also have potentially a self-
       defense but what he knows stops with him getting shot by his wife’s boss.
              ....
       MS. KRISTAL: Okay. We’ve got Ms. Hall saying that Mr. Corrigan pushed. he
       watched—
       THE COURT: That’s true. She did at one point say, pushed, and I think she said
       something about maybe hearing some scuffling before she heard the shots go off.
       MS. KRISTAL: And Mr. Hall says, we fought, we fought. So there is—it’s for
       the jury to just—the evidence is there. The jury should decide whether the
       shooting was accidental. I think that the way it’s—
       THE COURT: You’re saying it can’t be ruled out.
       MS. KRISTAL: It can’t be ruled out.

       The district court then asked if there were any other objections, corrections, or changes to
the proposed instructions. Defense counsel Mr. Chastain asked the court to grant the defense
motion for an acquittal, and defense counsel Ms. Kristal stated that the self-defense instruction
should also apply to lesser included offenses. The court again asked if there were any other
objections, corrections, or changes to the proposed instructions, and Mr. Chastain responded by
stating that the court had not ruled on whether it would give an excusable homicide instruction.

       MR. CHASTAIN: Judge, the only thing I want to add, and I know the court
       hasn’t ruled whether it’s giving the excusable around the issue of accident here.
               But I want to urge the court to give that because if I’m not allowed to
       argue that what may well have happened here wasn’t an accident, that takes away

                                               10
       a big chunk of what Mr. Hall’s defense certainly is. I mean, I go back to what Dr.
       Groben said here about an hour and a half ago, that you could come up with
       multiple scenarios for how those bullets got into Mr. Hall—excuse me—Mr.
       Corrigan.
                And if the court excludes that argument, which I think fits very well under
       these facts, especially given what Mr. Hall said on his tape, the gun was out of his
       control. It fell on the ground, he got shot. He doesn’t know what happened.
       That’s a very viable defense for Mr. Hall. And to take it away by not giving that
       instruction I think would be clear error. So I’m going to ask the court to leave
       that in.

The district court asked if there were any other proposed instructions or objections, and Mr.
Chastain answered, “Other than the direction to acquit him, that would be all we would request.”
       On the morning of October 24, 2012, the district court had the final jury instruction
conference. It began by stating that it had e-mailed counsel its final instructions, and both
counsel stated that they had received those instructions. During its comments, the court stated
that it had withdrawn the justifiable homicide instruction [proposed instruction No. 36] because
it was covered by the self-defense instruction and was repetitive.           After discussing its
modifications to several other jury instructions, the court asked, “So any other proposed
instructions by the state or corrections or objections or additions to the final instructions?” The
State responded, “Not from the state, Your Honor,” and Mr. Chastain responded, “No, Your
Honor.” The court thereafter read the jury instructions to the jury, counsel for the parties gave
their closing arguments, and the jury retired to reach its verdict.
       Any error in failing to instruct the jury regarding justifiable homicide pursuant to
subsection (1) of Idaho Code section 18-4009 was not preserved for appeal. Idaho Criminal Rule
30(b) states, “No party may assign as error the giving of or failure to give an instruction unless
the party objects thereto before the jury retires to consider its verdict, stating distinctly the
instruction to which the party objects and the grounds of the objection.” Defense counsel did not
object to the district court’s failure to give an instruction that was based upon subsection (1) of
Idaho Code section 18-4009. Merely submitting a proposed instruction that included the defense
of justifiable homicide as set forth in Idaho Code section 18-4009(1) and a memorandum
explaining why the defense thought the instruction should be given was not sufficient under Rule
30(b) to preserve any instructional error on that issue. Rule 30(b) required that defense counsel
object to the failure to give the instruction during the jury instruction conference and state
distinctly the grounds of the objection. Therefore, Rob cannot assign as error the failure to

                                                  11
instruct on subsection (1) of Idaho Code section 18-4009. The issue can only be raised as
fundamental error.
       The failure to instruct the jury regarding Idaho Code section 18-4009(1) was not
fundamental error. When “the alleged error was not followed by a contemporaneous objection,
it shall only be reviewed by an appellate court under Idaho’s fundamental error doctrine.” State
v. Perry, 150 Idaho 209, 228, 245 P.3d 961, 980 (2010). Under that doctrine, there must be an
error that violates one or more of the defendant’s unwaived constitutional rights; the error must
plainly exist; and the error must not be harmless.      Id.   The defendant has the burden of
persuasion on these issues. Id.
       “The first inquiry is whether there was an error in the jury instruction.”        State v.
Skunkcap, 157 Idaho 221, 227, 335 P.3d 561, 567 (2014). “Whether the trial court properly
instructed the jury presents a question of law over which this Court exercises free review.” State
v. Poe, 139 Idaho 885, 905, 88 P.3d 704, 724 (2004). The district court’s failure to instruct the
jury regarding subsection (1) of Idaho Code section 18-4009 was not error.
       “In charging the jury, the court must state to them all matters of law necessary for their
information.” I.C. § 19-2132(a). “A defendant in a criminal action is entitled to have his theory
of the case submitted to the jury under proper instructions.” State v. Olsen, 103 Idaho 278, 285,
647 P.2d 734, 741 (1982). “A defendant is entitled to an instruction where ‘there is a reasonable
view of the evidence presented in the case that would support’ the theory.” State v. Eastman,
122 Idaho 87, 90, 831 P.2d 555, 558 (1992). A defendant is not entitled to an instruction dealing
with a defense theory that is not supported by the evidence. State v. Johns, 112 Idaho 873, 880–
81, 736 P.2d 1327, 1334–35 (1987).
       Rob’s proposed instruction would have informed the jury that the homicide was
justifiable if “[t]he homicide was committed while resisting an attempt to do great bodily injury
upon any person, including the defendant.” Subsection (1) of Idaho Code section 18-4009 states
that a homicide is justifiable “[w]hen resisting any attempt . . . to do some great bodily injury
upon any person.” As Rob correctly states on appeal, subsection (1) of Idaho Code section 18-
4009 “describes an actual, ongoing attack.” He argues on appeal that “there was simply no
evidence presented that would counter the claim, definitively or otherwise, that Mr. Corrigan
physically attacked Mr. Hall, and that the homicide was committed in response to Mr. Corrigan’s
actual, ongoing attempt to inflict serious bodily injury upon him.” Whether there was error in


                                               12
giving a proposed instruction is not based upon a claim made by the party who proposed it.
Rather, the issue is whether there was evidence presented during the trial that would support the
giving of the instruction. Eastman, 122 Idaho at 90, 831 P.2d at 558. There was absolutely no
evidence that would have supported the giving of a jury instruction based upon subsection (1) of
Idaho Code section 18-4009. Specifically, there was no evidence that Emmett was engaged in an
ongoing attempt to do great bodily injury to Rob when Rob shot him. In fact, when arguing for
an excusable homicide instruction, both defense counsel argued that Rob does not know how
Emmett was shot, and there were no other eyewitnesses to the shooting.

       Kandi testified:
               A. . . . . And he [Emmett] took his hands down and pushed off the back of
       his truck and lunged and pushed Rob, as I would have thought he was going to
       knock him [Rob] down. He didn’t, but he pushed him on his chest, right here.
               And that’s when I got in between, and I said, “That’s enough. You get in
       your truck. Rob, we’ve got to go. Hannah called. She is waiting for us.”
               And I went around Rob, started walking to my car.
               ....
               Q. After you got around your husband, you could no longer see the
       defendant or Mr. Corrigan. Isn’t that right?
               A. Correct.

       Emmett allegedly pushing Rob on his chest would not constitute an attempt to do great
bodily harm under the circumstances described by Kandi. More importantly, after the alleged
push, Kandi stepped between them, told Emmett to get into his pickup, and told Rob they had to
go because their daughter had called and was waiting for them. At that point, there was no
ongoing physical activity at all between the two men. Thus, the push would not be evidence of
an ongoing attack upon Rob by Emmett.
       Kandi testified that as she was walking away, she heard scuffling. While he was in the
hospital immediately after the killing, Rob described what was occurring to a police detective,
who testified as follows:

       Q. Did he [Rob] give any indication about whether he knew why he was there?
       A. He said he had been shot in the neck.
       Q. Did he say anything else about how that happened?
       A. He said that it was his wife’s boss that shot him.
       Q. Did he give any indication of whose gun it was that he was shot with?
       A. Yeah. He said it was his.
       Q. Did he comment at all on whether he had some interaction with his wife’s
       boss preceding the shot?

                                               13
        A. Yes.
        Q. Do you recall what that was?
        A. He said that the gun had fallen out of his pocket.
        Q. By “his pocket,” was he referring—
        A. To his own pocket.
        Q. Was the defendant referring to his own pocket?
        A. To his own pocket. He said that—he said, “We fought for the gun, and then
        he got shot.” He said, “He shot me.”
        Q. Did he say how Emmett was shot?
        A. And he said “I shot” and then—but he didn’t get the full word out of his
        mouth, and then he never said.
                Later on, I did ask him, “Who shot him?” And he said he did not know.
        Q. When you say “who shot him,” you mean who shot Emmett?
        A. Correct.
        Q. And he told you he didn't know?
        A. Right.

        Although Rob stated that Emmett had shot him, he did not state any facts to show
whether it was an intentional shooting or an accidental one while they were fighting over Rob’s
pistol. Even if we assume that Emmett intentionally shot Rob, there is no evidence that Emmett
was engaged in any ongoing attempt to do some great bodily injury to Rob at the time that Rob
shot him.
        Kandi testified at trial that she heard three gunshots, which she described as a “pop, and
then a pause, and pop pop.”4 She then turned around and saw Rob standing with the pistol in his
hand. Her testimony was as follows:

        Q. Then what happened?
        A. And as I heard the last pop pop, it startled me the first time, but I almost
        thought it was a backfire of some sort. I didn’t really know what. It wasn’t a
        boom or what I would think, but it sounded like a balloon popping almost.
                And I turned around. Well, I just turned, just to see my peripheral,
        because I just didn’t have to go like this, I look over and Rob has got blood just
        coming down his face.
                And I ran over—turned around, ran over. He collapsed. The gun fell right
        in front of him. And I went over to him and got on my knees and pressed my—I
        was screaming, and put my hand on the wound on his head.
        Q. Excuse me just a second. So you’re telling us today that the first thing you
        saw when you turned around was the defendant with a gun in his hand.
        A. Correct.

4
  Kandi had initially stated that there were two shots, then a pause, and then the third shot. One witness who heard
the shots agreed with Kandi’s initial statement, and another witness who heard the shots agreed with Kandi’s trial
testimony.

                                                        14
       Q.   Was it in his right or his left hand?
       A.   Right hand.
       Q.   Did you see Mr. Corrigan?
       A.   No, I did not.

       If the first shot was fired by Emmett, Rob then obtained the pistol and shot Emmett twice,
killing him. “Once the victim has retreated and the danger is abated, the privilege of self defense
expires.” State v. Carter, 103 Idaho 917, 919, 655 P.2d 434, 436 (1981). There is no evidence
of what Emmett was doing after Rob gained possession of the pistol, and specifically there is no
evidence that he was doing anything that could be construed as engaging in an ongoing attempt
to inflict serious bodily injury upon Rob. There was no evidence of any injuries suffered by Rob
other than the grazing bullet wound to his head. When Emmett was shot, he did not have a
weapon, and there is no evidence that he was trying to regain the pistol or do anything.
Therefore, there was not a reasonable view of the evidence supporting the defense’s proposed
instruction. Because there was no error in failing to give the instruction, there could not be
fundamental error with respect to the failure to do so.


                                          III.
  Did the District Court Err in Denying Admission into Evidence of Emmett’s Facebook
                                        entries?

       On February 17, 2012, the defense filed a motion to admit various items of evidence,
including Facebook posts made by Emmett on February 25 and March 10, 2011. The defense
contended that “Corrigan made statements on Facebook indicating his desire to fight a male
whom Corrigan had an altercation with on or about the middle of February 2011, and indicating
that Corrigan’s physical presence caused fear and apprehension in the male.”
       Three of Emmett’s posts were marked on an attached exhibit, and in context the relevant
posts were as follows:
       Posts on February 25, 2011:

                Emmett:
                Nothin better than having someone try and call you out and when it comes
                go time they end up pissing their pants and not wanting any part of what
                they started

                Response from another:



                                                    15
                  I had that happen to me tonight too! When I came back and said let’s do
                  this he backed down like a baby back b****!!

                  Emmett:
                  Yeah Bro! Mine happened last week. Apparently they talk talk talk
                  smack in Cali. Here in Idaho talk is cheap. Throwin down settles it once
                  and for all!!

       Posts on March 10, 2011:

                  Emmett:
                  So sad seeing people get manipulated by people who abuse, lie and
                  cheat . . .

                  Response from another:
                  people like that need a serious ass kickin!!

                  Emmett:
                  I would kick their ass, but they are too scared to throw down . . . LOL!!!!
                  Next time I’ll film it for ya!!

       The defense contended that these posts were relevant and admissible under Idaho Rule of
Evidence 803(3) to show Emmett’s then existing state of mind in order to establish that he was
the aggressor. The State objected on the ground that the statements were hearsay and not within
the state-of-mind exception because they do not reflect Emmett’s state of mind on the date the
posts were made, much less on the date he was killed. The State also asserted that they were
inadmissible under Idaho Rule of Evidence 403. The district court ruled that the posts do “not
specify who the ‘male’ is that Corrigan is referring to and is highly speculative that this desire
pertained to the Defendant” and that the evidence would not be admitted because it is hearsay
and irrelevant.
       “Whether there is a proper foundation upon which to admit evidence is a matter within
the trial court’s discretion.” State v. Koch, 157 Idaho 89, 96, 334 P.3d 280, 287 (2014). “To
determine whether a trial court has abused its discretion, this Court considers whether it correctly
perceived the issue as discretionary, whether it acted within the boundaries of its discretion and
consistently with applicable legal standards, and whether it reached its decision by an exercise of
reason.” Reed v. Reed, 137 Idaho 53, 57, 44 P.3d 1108, 1112 (2002).
       On appeal, Rob contends that the Facebook posts “fit within the state of mind exception
because they were statements of Mr. Corrigan’s then existing intent to be the aggressor in a


                                                   16
future confrontation with Mr. Hall.” He asserts that the posts on February 25, 2011, about
someone trying to call Emmett out last week refer to Rob, based upon trial testimony that
Emmett and Rob had an argument sometime in February 2011 in the alley behind the law office
and another argument in late February 2011 in front of Rob and Kandi’s house. The trial
testimony that Rob contends shows that the Facebook posts concerned Rob was not presented to
the district court in connection with the pretrial motion seeking a ruling that the Facebook posts
were admissible. In support of that motion, the defense did not present any argument asserting
that Rob was the unidentified male who was the subject of the posts. Rob has failed to show that
the district court abused its discretion in making its pretrial ruling that the Facebook posts were
not admissible because it was highly speculative that they pertained to Rob.


                                            IV.
 Did the District Court Err in Permitting Testimony Regarding What Rob Was Taught in
                              His Concealed Weapons Class?

         During the seventh day of the jury trial, the state called an instructor who had taught a
concealed carry class in November 2006 that Rob attended. Rob contends that it was error to
permit the man to testify. However, the first issue is to determine the objections made during the
trial.
         When the instructor was first called to testify, the defense asked to take a matter up
outside the presence of the jury. After the jury left the courtroom, defense counsel stated that he
wanted “an offer of proof from the state how this is relevant to anything concerning Rob Hall’s
actions on March, 2011, and the allegations that he committed the crime of first degree murder.”
The defense added that the instructor probably did not remember Rob personally. The district
court held that it was not going to require the State to make an offer of proof, and the jury was
brought back into the courtroom.
         During the State’s questioning of the instructor, he was asked whether he taught a class
that Rob participated in, and the instructor answered: “Yes, sir, I did. My records indicate that I
did.” The defense objected on the ground that that was not an identification. Upon further
questioning, the instructor testified that he did not know Rob personally and could not identify
him. He could only testify that he taught the class in November 2006 and that a man named
Robert Hall attended. The defense then stated: “Judge, I’m going to object to any further



                                                17
testimony by this witness.     It’s not related to this case.”    The district court sustained the
objection, and the instructor stepped down.
       Later that day, the prosecutor and defense counsel met with the district court to discuss
the instructor. The prosecutor recited that he expected the instructor to say that he taught Rob,
and the defense stated various objections: the class was remote in time; there is no way to show
what Rob may have learned in the class or that he attended all class sessions; such testimony
would assume that Rob had the pistol and fired it; the instructor would be talking about the fine
points of the law and would be telling the jury what self-defense is and is not; the jury would
assume that Rob was thinking about what he was taught during the confrontation on March 11,
2012; any testimony from the instructor was completely inadmissible; it would assume things not
in evidence; the instructor would not know whether Rob was paying attention during the class;
and such testimony would be more prejudicial than probative.
       After hearing the party’s arguments, the district court stated that Rob’s “knowledge and
experience with a weapon” would be relevant, “In other words, was he a skilled marksman?
Was he not? Was this the first time he had ever possessed a gun?” The court stated that it was
“not going to let this witness testify as to the law of self-defense.” The court said that whether
Rob absorbed what he was taught was not the issue and that the class was not too remote. The
court ruled that it would allow the instructor to testify upon a showing that the Mr. Hall who took
the class was the Mr. Hall on trial and that “if you can lay that foundation, I’ll find that it’s
relevant, and upon further foundation, that it’s admissible.” This ruling by the district court has
not been challenged on appeal.
       On the eighth day of the trial, the State presented Rob’s application for a concealed
weapons permit, which showed that he took the instructor’s class on November 4, 2006. The
State then recalled the instructor. The State moved to admit a document that was a roster of the
instructor’s 2006 students, and the defense objected. The objection was, “I’m going to reiterate
our previously made objection and ask that it be continuing throughout this testimony.” The
district court responded: “Noted to be a continuing objection. Overruled. It will be admitted.”
Neither defense counsel nor the district court identified the “previously made objection.” Was it
the objection made when the instructor first testified in open court, that the instructor’s testimony
was “not related to this case” because he could not identify Rob as being the Rob Hall in the
class, or was it one of the objections made during the out-of-court discussion regarding the


                                                 18
instructor’s testimony? That type of continuing objection does not preserve an objection to
whatever the witness may thereafter say. As we stated in Hansen v. Roberts, 154 Idaho 469, 299
P.3d 781 (2013):

               Moreover, a broad continuing objection not based upon the proper
       standard or ground and made at the start of [the witness’s] testimony did not
       preserve an objection to [the witness’s] opinion that the accident was precipitated
       by [the plaintiff’s] careless right-hand turn. Continuing objections are difficult for
       trial courts to properly police unless there has been a meaningful argument and
       specific ruling on the subject matter of the objection. Proper practice is to frame
       an objection as to the specific area that preserves it for appellate review and then
       request a continuing objection on that ground. If it is not clear to the trial court as
       to the specific area, the court should inquire further.

Id. at 474, 299 P.3d at 786.
       Defense counsel did make two objections during the instructor’s testimony, and the
district court overruled those objections. The first objection came when the instructor was asked
to explain what the “AOJ triad” was that he taught in his class. As he began to answer, defense
counsel objected on the ground that the instructor was testifying about legal standards, and the
court overruled the objection. What occurred was as follows:

       Q. Explain to me what that AOJ triad is that you teach your students to take your
       class.
       A. AOJ is ability, opportunity, and in jeopardy. Before I teach that you are
       allowed to use deadly force against another human being—
       MR. CHASTAIN: Judge, I’m going to have to object at this time. This is a
       legal—this is testimony on legal standards. That’s something the court will
       instruct the jury on. I thought the court had previously ruled that he would not be
       allowed to get into legal matters.
       THE COURT: I’ll overrule. I think this is just teaching in the trial. I don’t think
       he is instructing the jury.

The instructor then explained the AOJ triad as follows:

       THE WITNESS: Ability means that the defender has knowledge that the
       aggressor has the ability to cause death or great bodily harm. They either have a
       weapon, the defender knows that the person has a weapon, or they have personal
       knowledge of the individual that they’ve been trained in the destructive arts of
       hand-to-hand combat where they can kill or cripple with their bare hands.
               Opportunity means that the person has the power to immediately employ
       the ability with a firearm. It’s a line of sight. If they can see the person, and they
       can shoot the person.



                                                 19
                If it’s a contact-type weapon, then we look at distance and obstacles. And
       that’s opportunity.
                Jeopardy is the person, is the aggressor acting in a manner which a
       reasonable and prudent person would conclude the aggressor’s intent is to in fact
       kill or cripple.

       Before the State completed its direct examination of the instructor, the district court took
the afternoon recess.    During that recess, it proposed a limiting instruction regarding the
instructor’s testimony, to which both sides agreed. When the trial resumed, the court gave the
following limiting instruction:

               Before [the instructor] continues his testimony, I’m going to give you a
       limiting instruction, ladies and gentlemen.
               [The instructor] is here to testify regarding instruction that he gave on the
       dates in question. That’s a limited purpose of his testimony, is what he instructed
       upon.
               Issues such as self-defense or use of force, the court, at the end of the trial
       if appropriate, will give you detailed instructions on those subjects. So do not
       consider this evidence other than the limited purpose for which it is being
       admitted, and that was what the instruction was.

       As the State continued its questioning of the instructor, he testified that “[y]ou should do
everything that you possibly can to not get involved in a situation where you would be put in a
position where you have to use deadly force” and that “[i]f you can avoid the threat, if you see
something that is a potential threat, then you should avoid it.” Defense counsel objected that this
testimony was not Idaho law. The objection was as follows: “Judge, I’m going to object at this
point. That is not Idaho law. And so that is—I am going to object here. Idaho does not have
any such requirement, and [the instructor’s] testimony would seem to indicate otherwise.” The
district court overruled the objection and reminded the jury of the limiting instruction. The court
stated: “And let’s try and go with a question and answer rather than a narrative. I’ll overrule at
this point again with that limiting instruction. The court is going to give you instructions as to
the law regarding, again, appropriate self-defense.”
       On appeal, Rob argues that the instructor’s testimony was not relevant, but lack of
relevancy was not included in the two objections made.            In arguing that the instructor’s
testimony was not relevant, Rob does state that Idaho Code section 18-4009(1) “does not require
that a defendant be motivated solely by an objectively reasonable fear or have any fear at all.”
This is apparently referring to the instructor’s testimony regarding the AOJ triad. However, as


                                                 20
explained above, there was no evidence supporting the giving of an instruction based upon that
code section. Rob does not assert or present any argument explaining how the instructor’s
testimony regarding the AOJ triad would be inconsistent with the court’s jury instruction on self-
defense. “Absent any showing that the ruling affected any substantial rights, we will not address
whether or not the ruling was correct.” Tapadeera, LLC v. Knowlton, 153 Idaho 182, 189, 280
P.3d 685, 692 (2012).
         Rob also states that the instructor’s teaching contradicted Idaho law regarding the duty to
flee. The district court correctly instructed the jury that there was no duty to flee. 5 The
instruction was as follows:

                In the exercise of the right of self-defense, one need not retreat. One may
         stand one’s ground and defend oneself by the use of all force and means which
         would appear to be necessary to a reasonable person in a similar situation and
         with similar knowledge. This law applies even though the person being attacked
         might more easily have gained safety by flight or by withdrawing from the scene.

         In addition, once the jury was selected and sworn to try the case, the district court read
them some preliminary instructions. Those instructions included one telling them that they must
accept the law as set forth in the jury instructions. The relevant portion was as follows:

                 Your duties are to determine the facts, to apply the law set forth in my
         instructions to those facts, and in this way to decide the case. In so doing, you
         must follow my instructions regardless of your own opinion of what the law is or
         should be, or what either side may state the law to be. You must consider them as
         a whole, not picking out one and disregarding others.

         After all of the evidence had been presented, the district court again instructed the jury
that the applicable rules of law were set forth in the jury instructions. The court instructions
included the following:

                You have been instructed as to all the rules of law that may be necessary
         for you to reach a verdict. Whether some of the instructions will apply will
         depend upon your determination of the facts. You will disregard any instruction
         which applies to a state of facts which you determine does not exist.




5
  The right of self-defense does not require that the person avoid the attack if he can safely do so or do everything in
his power to avoid the necessity of acting in self-defense. State v. Dunlap, 40 Idaho 630, 637, 235 P. 432, 434
(1925); State v. McGreevey, 17 Idaho 453, 467, 105 P. 1047, 1051 (1909).

                                                          21
“We must presume that the jury followed the jury instructions in arriving at their verdict.”
Weinstein v. Prudential Prop. & Cas. Ins. Co., 149 Idaho 299, 335, 233 P.3d 1221, 1257 (2010).
       Rob contends that a jury question showed that the jury did not follow the district court’s
instructions. During the State’s questioning of the instructor, he was asked whether “you make
any recommendations with regard to carrying a firearm in a holster or some other carrying
device.” There was no objection to that question, and the instructor answered: “Any firearm
should always be carried in some type of holster. The holster should be a good, sturdy holster,
and it should cover the trigger guard on the firearm.” The court did not instruct the jury
regarding whether a firearm should be carried in a holster, nor did the defense request an
instruction regarding that matter. During the jury’s deliberations, the jury sent a question to the
district court about whether Idaho law required firearms to be carried in a holster. The question
was as follows: “We would like clarification regarding the concealed weapon law. Does the law
state how the weapon is to be carried when on a person, such as holstered versus not holstered?”
After consulting with counsel, the court answered the question, “No, the law does not require a
weapon to be holstered.” The jury’s question does not indicate that the jury disregarded the
court’s instructions.


                                               V.
                                           Conclusion.

       We affirm the judgment of the district court.


       Chief Justice J. JONES and Justices BURDICK, W. JONES and HORTON CONCUR.




                                                22
