               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38636

STATE OF IDAHO,                                  )      2011 Unpublished Opinion No. 745
                                                 )
       Plaintiff-Respondent,                     )      Filed: December 14, 2011
                                                 )
v.                                               )      Stephen W. Kenyon, Clerk
                                                 )
ROY THOMPSON GWIN, JR.,                          )      THIS IS AN UNPUBLISHED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,
       Jerome County. Hon. John K. Butler, District Judge.

       Order denying motion to suppress, affirmed; judgment of conviction and unified
       sentence of twenty years, with a minimum period of confinement of three years,
       for felony driving under the influence, affirmed.

       Molly J. Huskey, State Appellate Public Defender; Elizabeth Ann Allred, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Chief Judge
       Roy Thompson Gwin, Jr. appeals from the district court’s denial of his motion to
suppress and the sentence imposed by the district court for driving under the influence, Idaho
Code §§ 18-8004(1)(a), 18-8005(9), with a persistent violator enhancement, I.C. § 19-2514.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       The police were notified of a disturbance in the early morning hours of August 9, 2010,
described as a fight in the street. An officer arrived and spoke with David Gwin, Roy Gwin’s
son, who told the officer that he and his father had been in an altercation and that his father had
left driving a green Chevrolet Blazer. Another officer in the area was notified and instructed to
locate the vehicle. The second officer observed the vehicle in the vicinity of the altercation and




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initiated a traffic stop. Roy Gwin was driving the vehicle and was arrested for driving under the
influence.
       The State charged Gwin with felony driving under the influence with a persistent violator
enhancement. Gwin filed a motion to suppress, claiming that the officer lacked reasonable
suspicion to conduct the traffic stop. The district court denied Gwin’s suppression motion.
Gwin then entered a conditional guilty plea, reserving the right to appeal the district court’s
decision. The district court entered a judgment of conviction, finding Gwin to be a persistent
violator, and imposed a unified sentence of twenty years with three years determinate. Gwin
filed a timely notice of appeal.
                                                II.
                                          DISCUSSION
       Gwin argues that the district court erred in denying his motion to suppress because the
officer lacked reasonable suspicion for the stop. He also contends that under any view of the
facts his sentence was excessive. The State contends that Gwin has failed to show any error by
the district court in denying his motion, and that the district court’s sentence was not an abuse of
discretion.
A.     Motion to Suppress
       The standard of review of a suppression motion is bifurcated. When a decision on a
motion to suppress is challenged, we accept the trial court’s findings of fact that are supported by
substantial evidence, but we freely review the application of constitutional principles to the facts
as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a
suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts,
weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina,
127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d
659, 662 (Ct. App. 1999).
       A traffic stop by an officer constitutes a seizure of the vehicle’s occupants and implicates
the Fourth Amendment’s prohibition against unreasonable searches and seizures. Delaware v.
Prouse, 440 U.S. 648, 653 (1979); Atkinson, 128 Idaho at 561, 916 P.2d at 1286. Under the
Fourth Amendment, an officer may stop a vehicle to investigate possible criminal behavior if
there is a reasonable and articulable suspicion of criminal activity. United States v. Cortez, 449
U.S. 411, 417 (1981); State v. Flowers, 131 Idaho 205, 208, 953 P.2d 645, 648 (Ct. App. 1998).


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An investigative detention must be based upon specific, articulable facts which justify suspicion
that the detained person is, has been, or is about to be engaged in criminal activity. State v.
Sheldon, 139 Idaho 980, 983, 88 P.3d 1220, 1223 (Ct. App. 2003). The reasonableness of the
suspicion must be evaluated upon the totality of the circumstances at the time of the stop. State
v. Ferreira, 133 Idaho 474, 483, 988 P.2d 700, 709 (Ct. App. 1999). The reasonable suspicion
standard requires less than probable cause, but more than mere speculation or instinct on the part
of the officer. Id. An officer may draw reasonable inferences from the facts in his or her
possession, and those inferences may be drawn from the officer’s experience and law
enforcement training. State v. Montague, 114 Idaho 319, 321, 756 P.2d 1083, 1085 (Ct. App.
1988).
           Gwin contends that any reasonable suspicion of his involvement in a crime was dispelled
once the first officer contacted his son, who did not appear to have any injuries, and told the
officer he did not want to press charges. However, as the district court correctly noted, whether
or not Gwin’s son wanted to press charges is not determinative of whether or not there was a
crime committed. If anything, David Gwin’s statement that there had been an altercation and
that he did not want to press charges supports a finding of reasonable suspicion because it
implies that something occurred for which his father could be charged.
           Even if we ignore David Gwin’s statement about pressing charges, the police had
reasonable suspicion to justify the stop of Gwin’s vehicle. The police received an anonymous tip
that there was an altercation taking place in the middle of a road. When the first officer arrived
he found David Gwin, who acknowledged that he had been in a fight with his father. Although
David Gwin did not appear to have any injuries, the officer observed that his shirt was ripped
which he stated occurred during the altercation. He then told the officer that his father was
driving a green Chevrolet Blazer, which the officer related to another officer in the vicinity. This
occurred in the early hours of a Monday morning in a rural area when there was very little
traffic.    The second officer stopped Gwin’s vehicle because it matched the description of the
vehicle in question and was in the area of the altercation. Given these facts, and under totality of
the circumstances, the second officer had reasonable and articulable suspicion that the driver of
the stopped vehicle was the same individual involved in the altercation, a possible crime
involving either an assault or battery. As the district court correctly noted, the fact that David
Gwin did not appear to be physically injured or want to press charges did not mean that no crime


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had been committed, or that further investigation was unwarranted. Therefore, the district court
properly denied Gwin’s motion to suppress evidence obtained pursuant to the traffic stop.
B.     Excessive Sentence
       Gwin next contends that his unified sentence of twenty years with three years determinate
is excessive under any view of the facts. An appellate review of a sentence is based on an abuse
of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000).
Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable, and
thus a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992).
A sentence may represent such an abuse of discretion if it is shown to be unreasonable upon the
facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of
confinement is reasonable if it appears at the time of sentencing that confinement is necessary
“to accomplish the primary objective of protecting society and to achieve any or all of the related
goals of deterrence, rehabilitation or retribution applicable to a given case.” State v. Toohill, 103
Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the
sentencing court imposed an excessively harsh sentence, we conduct an independent review of
the record, having regard for the nature of the offense, the character of the offender, and the
protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct.
App. 1982). When reviewing the length of a sentence, we consider the defendant’s entire
sentence. State v. Oliver, 144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
       At the sentencing hearing, the district court recognized its discretion when imposing
sentence upon Gwin. The district court noted that Gwin pled to the charges in this matter as a
persistent violator and that he reserved his right to appeal. The court also noted that the present
matter was Gwin’s sixth felony conviction. The district court considered the nature of the
offense and the goal of protecting society, noting that this was Gwin’s third felony DUI
conviction; and while the crime was not aggravated in the sense that there was a victim, the court
emphasized that it need not wait until there is a victim before it could act to protect society. The
district court also considered deterrence and the potential for rehabilitation. The court noted that
Gwin previously had the benefit of substantial programming and treatment within the
penitentiary setting; yet, even knowing he should not drink, Gwin continued to do so, and
continued to drive after drinking. The district court acknowledged its belief that there was a




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significant risk that Gwin could commit another crime in the future, because he clearly did not
have his drinking under control.
       The district court properly recognized its discretion and considered the sentencing factors
relevant to its determination. The district court did not abuse its discretion by imposing a unified
sentence of twenty years with three years determinate.
                                                III.
                                         CONCLUSION
       The police had reasonable suspicion to stop Gwin’s vehicle; thus, the district court
properly denied Gwin’s suppression motion. As such, the district court’s order denying Gwin’s
motion to suppress is affirmed. Gwin also failed to establish that the district court’s sentence
was an abuse of discretion. Therefore, Gwin’s judgment of conviction and sentence are also
affirmed.
       Judge GUTIERREZ and Judge MELANSON CONCUR.




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