               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 37950

STATE OF IDAHO,                                 )       2011 Unpublished Opinion No. 704
                                                )
       Plaintiff-Respondent,                    )       Filed: November 15, 2011
                                                )
v.                                              )       Stephen W. Kenyon, Clerk
                                                )
THOMAS L. LANDON,                               )       THIS IS AN UNPUBLISHED
                                                )       OPINION AND SHALL NOT
       Defendant-Appellant.                     )       BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Bradly S. Ford, District Judge.

       Judgment of conviction and sentence, 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
       Thomas L. Landon appeals from his felony conviction for aiding and abetting a robbery.
Idaho Code §§ 18-6501, 18-6502, 18-6503, 12-204. Landon asserts that the district court erred
in admitting his cousin’s testimony and by imposing an excessive sentence. We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Landon was convicted of aiding and abetting the robbery of Jacqueline Turner at a home
in Nampa. During the trial, Landon’s cousin, Curtis Hunter, testified that twelve days after the
robbery Landon told him of his involvement in a robbery of a woman at a home in Nampa.
Because of certain differences between what Hunter said Landon told him about the robbery and
the description of the robbery from Turner, Landon objected to the testimony, arguing that it was
not relevant, was overly prejudicial, and the State had not “tied [Hunter’s testimony] up close
enough to be this incident.” The district court determined that the testimony was admissible as

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an exception to the hearsay rule, relevant, and its probative value had not been substantially
outweighed by the danger of unfair prejudice. The jury convicted Landon and the district court
imposed a unified term of life, with twenty years determinate. Landon timely appeals, asserting
that the district court erred in admitting Hunter’s testimony and by imposing an excessive
sentence.
                                                II.
                                          DISCUSSION
A.     Hunter’s Testimony
       Landon contends that the district court abused its discretion by admitting Hunter’s
testimony. He argues that the testimony was either irrelevant under Idaho Rule of Evidence 402,
because Hunter’s testimony was factually distinguishable from the charged robbery, or that any
relevance was outweighed by unfair prejudice under I.R.E. 403. Evidence is relevant if it has
any tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence. I.R.E. 401.
Relevant evidence is admissible, except as provided by another rule, and irrelevant evidence is
not admissible. I.R.E. 402. We review questions of relevance de novo. State v. Raudebaugh,
124 Idaho 758, 764, 864 P.2d 596, 602 (1993). Relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.       I.R.E. 403.    A lower court’s determination under
I.R.E. 403 will not be disturbed on appeal unless it is shown to be an abuse of discretion. State v.
Enno, 119 Idaho 392, 406, 807 P.2d 610, 624 (1991); State v. Clark, 115 Idaho 1056, 1059, 772
P.2d 263, 266 (Ct. App. 1989). When a trial court’s discretionary decision is reviewed on
appeal, the appellate court conducts a multi-tiered inquiry to determine: (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. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
       On the other hand, the State contends that Landon’s argument that the State had not
sufficiently tied Hunter’s testimony to the crime charged is, in reality, a foundation challenge
under I.R.E. 901(a) and 104(b). Idaho Rule of Evidence 901(a) provides that “the requirement of
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authentication or identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent claims.” Idaho
Rule of Evidence 104(b) states that “whenever the relevancy of evidence depends upon the
fulfillment of a condition of fact, the court shall admit it upon, or in the court’s discretion subject
to, the introduction of evidence sufficient to support a finding of the fulfillment of the
condition.” The State asserts that it offered Hunter’s testimony of Landon’s confession not as an
admission to some robbery, but as an admission to the robbery for which he stood trial. Thus,
the relevance of this evidence was conditioned on the presentation of evidence sufficient to
support a finding by the jury that Hunter’s testimony was what its proponent claimed, namely, an
admission by Landon to the crime charged.
       Either way, the question boils down to whether Hunter’s testimony of a robbery
described by Landon related to the Turner robbery. The trial of this matter took place nearly two
years after the robbery. Turner testified that she and Landon developed an acquaintance-type
friendship after meeting while he was moving into his residence in Nampa. On one occasion,
Landon gave Turner a tattoo, which she stated she paid for. Turner also testified that on June 22,
2008, Landon asked to borrow twenty dollars from her.             While running errands later that
evening, Turner ran into a friend and agreed to give him a ride after stopping by Landon’s
residence to drop off the twenty dollars. When Turner arrived at the house she and her friend
went inside and started talking to Landon. Once inside, a masked man came down the hall
holding a gun. The man yelled for everyone to get down and pointed the gun at Turner’s face.
As Turner was going to the ground she noticed Landon was already down. Turner’s friend ran
out of the house and Landon got up and chased after the friend. While Landon was outside, the
masked man put his knee on Turner’s back, zip-tied her hands, and told her he was going to carry
her out of the house and kill her if she screamed. The masked man then took money out of her
wallet. Landon then returned and told the masked man that he was unable to catch the friend.
The masked man once again pointed the gun at Turner’s face and told her not to move. The two
men left the house, leaving Turner zip-tied.
       Hunter testified that Landon told him about a robbery he had participated in of a woman
at a home in Nampa. The conversation occurred twelve days after the Turner robbery. Hunter
did not remember many details from that conversation, but testified remembering Landon telling
him that he and a friend broke into someone’s house in Nampa. He also testified that Landon
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told him he held the victim at gunpoint and that the victim was tied up to a chair. Hunter
testified that the robbery involved money, although indicated that the robbery could have
involved money or marijuana.
       Landon also testified at trial. His testimony was similar to Turner’s in that he said he was
a tattoo artist, he met Turner while moving into a new residence, and that he gave Turner a
tattoo. However, Landon testified that Turner paid for the tattoo with marijuana and gave him
more marijuana for tattoos to be received in the future. Landon’s testimony was also quite
different when it came to the events of the charged crime. Landon testified that he and his
friend, Bryce Wolfe, were planning to leave the Nampa area on June 22, 2008. While loading
his belongings into Wolfe’s truck, Turner showed up at the house with an unknown male.
Turner began to question Landon if he was leaving town and if he was going to repay her for the
marijuana she had given him as payment for two tattoos she had not yet received. A physical
altercation began between Landon and the unknown male and once Landon got the upper hand,
the unknown male ran out of the house. Landon followed the man out of house and told Wolfe
to calm Turner down. When Landon came back into the house, Wolfe had Turner on the ground
and had zip-tied her wrists. According to Landon, he then told Wolfe to leave her alone and the
two left town.
       The district court determined that Hunter testified to an admission by Landon which was
connected to the prior trial testimony, “about the incident that occurred on June 22, 2008, in
Nampa from the victim describing what happened, a gun being held on her, an attempt made to
tie her with the ties.” The district court also noted that the conversation between Landon and
Hunter occurred just twelve days after the Turner robbery. Finally, the district court stated that
the relevance of the evidence was not substantially outweighed by unfair prejudice.
       Landon argues that the discrepancies between Turner’s testimony and Hunter’s testimony
made Hunter’s testimony dissimilar from the charged crime. Landon asserts the differences
between the testimonies are: (1) whether Landon and his accomplice broke into the house or
were already there lying in wait; (2) whether Landon or his accomplice held the gun; (3) whether
the victim was bound on the ground or to a chair; and (4) whether the robbery involved money or
marijuana.
       Landon made the statements to Hunter only twelve days after the Turner robbery. Hunter
agreed that he could not remember every detail, yet Hunter’s testimony is sufficiently similar to
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Turner’s testimony: (1) Landon and an accomplice threatened a woman; (2) in Nampa; (3) at
gunpoint; (4) used ties to bind the victim; (5) and robbed her. Hunter’s testimony contained
details that corroborated the victim’s testimony.      There is no indication that Landon had
committed similar crimes in the area or was suspected of committing any unrelated crimes in the
area. Landon did not assert that he had, in fact, been describing a different robbery. The
differences between the details presented by Hunter and Turner did not render Hunter’s
testimony irrelevant. The jury was free to ascribe weight to the testimony. The district court did
not err in admitting Hunter’s testimony.
B.      Excessive Sentence
        Landon claims, given any view of the facts, that his unified life term with twenty years
determinate is excessive. Specifically, Landon asserts that his sentence is excessive because the
district court failed to give “proper consideration” to mitigating factors. Landon believes that a
sentence of seven or eight years would be more appropriate.
        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). The district court appropriately considered the
goals of sentencing, including various mitigating factors. Applying the foregoing standards and
having reviewed the record in this case, we conclude that Landon has failed to demonstrate that
the court abused its discretion.
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                                             III.
                                       CONCLUSION
       The district court did not err in admitting Hunter’s testimony or abuse its sentencing
discretion. Therefore, Landon’s judgment of conviction and sentence are affirmed.
       Judge LANSING and Judge GUTIERREZ CONCUR.




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