1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 32772
STATE OF IDAHO,
Plaintiff-Respondent,

v.
BENNY DALE COFFIN,
Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) 2008 Opinion No. 76
Filed: July 24, 2008
Stephen W. Kenyon, Clerk

Appeal from the District Court of the Four th Judicial District, State of Idaho, Ada County. Hon. Michael E. Weth erell, District Judge.
Judgment of conviction and unified senten ce of ten years, with five years determinate, for felony domestic violence, affirmed

. Molly J. Huskey, State Appellate Pub lic Defender; Diane M. Walker, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney Genera l; Lori A. Fleming, Deputy Attorney General, Boise, for respondent.

______________________________________________ GUTIERREZ, Chief Judge Bennie Dale Coffin appeals from the judgm ent of conviction and sentence entered upon the jury verdict finding him guilty of felony domestic violence. We affirm.
I.
FACTS AND PROCEDURE On June 1, 2005, police twice responded to Coffi n’s residence to inve stigate two separate reports of domestic violence. The first report was made by Co ffin’s live-in girlfriend, Kalee Chandler, who called 911 reporting th at she and Coffin had been in an alterca tion. After arriving at the residence to investigate, an officer suggest ed to Coffin, who was “cl early intoxicated,” that
he leave the residence. No a rrests were made at the time. Approximately a half-hour after the officers le ft the residence, Chandler fled to a nearby house screaming and told her neighbor that Coffin had hit and kicked her and thrown her to the2 ground. Chandler spoke to a 911 operator, telling her that Co ffin had returned to the house wanting a ring and that Chandler had put the ring in her mouth. She stated that Coffin then put his fingers in her mouth, she bit them, and he th rew her on the ground and kicked her in the head. When the officers returned to Coffin’s residence, he was not there. They interviewed Chandler and took photographs of her injuries which included a scratch and bruise on her arm, bite marks on her forehead, a noticeable bump on the back of her head, and lacerations under her tongue. The police then left th e residence in search of Coffi n who they found several blocks away. He told the officers that when Chandler would not give him th e ring, he had pried her mouth open and attempted to retrieve the ring. She then bit down on his fingers, causing Coffin to press his teeth against her forehead and to hit th e back of her head in an attempt, he claimed,
to have her release her bite. He also admitte d to pushing her to the ground to free himself but denied kicking her in the head as she had claimed. Coffin was charged with felony domestic violence, Idaho Code §§ 18-903, 18-918(2). Following a jury trial, he was found guilty and sentenced to ten years, with five years determinate. The court, however, suspended the sentence, placing Co ffin on probation for ten years. Coffin now appeals.
II.
ANALYSIS A. Jury Instructions For the first time on appeal, Coffin contends that the district court committed reversible error when it instructed the jury with regard to the definition of “willfully” for the purpose of the “willful infliction of a traumatic injury” element of the domestic violence charge (jury instruction no. 10). The question whether the jury has been pr operly instructed is a question of law over
which we exercise free review. State v. Gleason , 123 Idaho 62, 65, 844 P.2d 691, 694 (1992). When reviewing jury instructi ons, we ask whether the instru ctions as a whole, and not individually, fairly and accurately reflect applicable law. State v. Bowman , 124 Idaho 936, 942, 866 P.2d 193, 199 (Ct. App. 1993). Ordinarily, a party may not claim that a ju ry instruction was err oneous unless the party objected prior to the jury beginni ng to deliberate. Idaho Crimin al Rule 30(b). However, even absent a timely objection to the trial court, some claims of instructional error are reviewable for3 the first time on appeal under the fundamental error doctrine. State v. Anderson , 144 Idaho 743, 748, 170 P.3d 886, 891 (2007). Fundamental error has been defined as error that “so profoundly distorts the trial that it produces manifest inju stice and deprives the accused of his fundamental right to due process.” Anderson , 144 Idaho at 748, 170 P.3d at 891; State v. Lavy , 121 Idaho 842, 844, 828 P.2d 871, 873 (1992). Coffin contends the instruction given by the co urt on the “willful” element of infliction of traumatic injury for domestic violence was an err oneous statement of the law that was prejudicial to him. Specifically, he argues th at the court instructed the jury on “willfulness” by giving “the less culpable conduct-oriented meaning” of the term and thereby reducing the state’s burden of proof in regard to the mental element of the offense. The United States Supreme Court has held that in a criminal trial, “the State must prove every element of the offense, and a jury instruction violates due proce ss if it fails to give effect to that requirement.” Middleton v. McNeil , 541 U.S. 433, 437 (2004); Anderson , 144 Idaho at 749,
170 P.3d at 892. The applicable code section which Coffin was charged with violating, I.C. § 18- 918(2)(a), 1 stated that: Any household member who commits a ba ttery, as defined in section 18-903, Idaho Code, and willfully and unlawfully inflicts a traumatic injury upon any other household member is guilty of a felony. (Emphasis added).
In State v. Sohm , 140 Idaho 458, 95 P.3d 76 (Ct. App. 2004), the lower court used the definition of “willfully” in Idaho Code § 18-101(1) 2 in instructing the jury on a domestic

1 The acts in question occurred on June 1, 2005, before the 2005 amendment to the statute which deleted the words “willfully and unlawfully” from the substantive section at issue in this appeal. 2005 I DAHO S ESS

. L AWS ch. 158, § 1, pp. 488-90. As cu rrently in effect, I.C. § 18- 918(2)(a) provides: Any household member who in committing a battery, as defined in section 18- 903, Idaho Code, inflicts a traumatic inju ry upon any other household member is guilty of a felony.

2 Idaho Code Secti on 18-101(1) provides: The word “willfully,” when applied to the intent with which an act is done or omitted, implies simply a purpose or wi llingness to commit the act or make the4 violence charge. The instruction stated that “[ a]n act is ‘willful’ or ‘done willfully’ when done

on purpose. One can act willfully without intending to vi olate the law, to inju re another, or to acquire any advantage .” (Emphasis added). We held that in light of State v. Reyes , 139 Idaho 502, 80 P.3d 1103 (Ct. App. 2003), where this Court had he ld that to establish a violation of I.C. § 18-918(3), the state must prove that the defendant willfully inflicted injury , it was error for the lower court to instruct the jury on the defini tion of “willfulness” in I.C. § 18-101(1). The
erroneous instruction would have allowed the jury in Sohm to find the defendant guilty even if he had not intended to injure the victim with hi s actions, because the instruction had defined “willful” as a state of mind not necessarily requiring an intent to injure another. The error was
held to be not harmless because the instruction was confusing and misleading. We concluded, “[t]here can be no doubt that this error was prejud icial because it diminished the state’s burden of proof on the mental element of the offense.” Sohm , 140 Idaho at 461, 95 P.3d at 79. Similarly, in State v. Young , 138 Idaho 370, 64 P.3d 296 (2002), the Idaho Supreme Court rejected the use of a jury instruction ut ilizing the I.C. § 18-101(1) definition of “willfully” in the context of the charge of felony injury to a child. The court held that the error was not harmless because “[a]t best, [the erroneous instruction] is confusing. At worst, it misstates the
law . . . .” Young , 138 Idaho at 373, 64 P.3d at 299. See also State v. Lilly , 142 Idaho 70, 72-73, 122 P.3d 1170, 1172-73 (Ct. App. 2005) (relying on Sohm to find that the “willful” instruction was erroneous as given in the context of a felony domestic battery charge). Here, jury instruction no. 10 regarding willfulness consisted of the first half of I.C. § 18- 101, stating that: “Willfully” when applied to the inte nt with which an act is done or omitted, implies simply a purpose or wil lingness to commit the act or make the omission referred to. The state argues that the court’s deletion of the last sentence of the “willfulness” definition as articulated in I.C. § 18-101(1) was su fficient to distinguish the case from Sohm and Young

. Specifically, the state argues that unlike in Sohm , instruction no. 10 in this case did not define the term “willfully” in such a manner that the jury could find Coffin guilty of domestic violence

omission referred to. It does not require a ny intent to violate law, or to injure another, or to acquire any advantage.5 even if he did not intend to injure the victim. The state asserts that when considered together with instruction no. 7, which instructed the jury that Coffin must have “willful ly” inflicted a traumatic injury, the effect of instruction no. 10 was “simply to convey to the jury that Coffin must have purposely inflicted a traumatic injury, i.e. , that he intentionally injured the victim.” Coffin, however, argues that despite the fact the in struction consisted of only the first sentence of
the instructions at issue in the cases discussed above, it still operated to reduce the state’s burden of proof in regard to the me ntal element of the offense. Examining the instructions as a whole, we conclude that instru ction no. 10 was not an
erroneous statement of the law. In Sohm and Young it was the second sentence of the instructions which the courts focused on as ope rating to reduce the state’s burden of proof in regard to a mental element of the offense. We agree with the state that without the second sentence, the instruction merely conveys that an act is done “w illfully” when it is done on purpose. Read in concert with instruction no. 7, that the defendant must have “willfully . . . inflicted[ed] a traumatic injury upon [the victim],” instruction no. 10 was sufficient to convey the requirement Coffin must have intended to injure the victim when he struck her. Thus, we
conclude the court did not err in giving instruction no. 10.
Coffin also contends the distri ct court erred in its actions taken to correct instruction no. 7 after it was read to the jury. After the prosecutor alerted the court to an error, the court instructed that each juror take out their writing instruments and make the corrections on their individual copies of the instruction. Coffin argues that the court’s failure to give the jurors a clear,
corrected version of the instruct ion was apt to mislead and confus e them. However, Coffin cites no authority for the proposition that each juror is required to have a “clean” copy of an instruction, and we note that the judge read the corre cted version of the instruction to the jury in its entirety prior to re leasing them for deliberations. Th e trial judge inst ructed that: I will repeat instruction number 7. In order for the defendant to be guilty of domestic violence, the State must prove each of the following: (1) on or about June 1, 2002; (2) in the State of Idaho; (3) the defendant, Benny Dale Coffin; (3)(a) did commit a battery upon Kalee Chandler; (4) did willfully and unlawfully inflict a traumatic injury upon Kalee Chandler; (5) while the defendant and Kalee Chandler were household members.6 If each of the above elements have been proved beyond a reasonable doubt, you must find the defendant guilty of domestic violence. If any of the above elements has not been proven beyond a reasonable doubt, then you must find the defendant not guilty of domestic violence. Under the circumstances we find no error in the procedure. B. Prosecutorial Misconduct Coffin also argues that his right to a fair trial was violated when the prosecutor committed misconduct by misstating the law during his closing arguments. He contends that the prosecutor’s statement of the law was erroneous in that it lowered the st ate’s burden of proof regarding the willfulness of Coffin’s conduct. Specifically, the prosecutor stated that: I want you to flip to . . . instruction number 10; willfully. It’s important to understand the meaning of the word willful because it is employed in instruction number 7. [Instruction number 10] states: “Willfu lly, when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or omission referred to.” So when [Coffin] put his hands into [Chandler’s] mouth, his intention was probably to get the ring. What resulted fr om the act, there were some cuts in her mouth. Even if you assume, as was suggeste d, that perhaps the ring sitting in her mouth by itself caused the harm, we know th at [Coffin’s] hand went into that mouth. And perhaps he didn’t intend to cut her mouth, but his act was to get his hand in there and get that ring . So the act was willful, although he may not have intended the specific result

. . . . (Emphasis added). No objection was stated by the defense or ruling made at the time the challenged statements were made by the prosecutor. It is prosecutorial misconduct for a prosecutor to misstate th e law in closing arguments. State v. Phillips , 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007). Ho wever, where there is no contemporaneous objection, a conviction will be reversed for prosecutorial misconduct only if the conduct is sufficiently egregious to result in fundamental error. State v. Field , 144 Idaho 559, 571, 165 P.3d 273, 285 (2007); State v. Sheahan , 139 Idaho 267, 280, 77 P.3d 956, 969 (2003); State v. Hairston , 133 Idaho 496, 507, 988 P.2d 1170, 1181 (1999). Prosecutorial misconduct during closing arguments will constitu te fundamental error only if the comments were so egregious or inflammatory that any cons equent prejudice could not have been remedied by a ruling from the trial court informing the jury that the comments s hould be disregarded.
Sheahan , 139 Idaho at 2 80, 77 P.3d at 969; State v. Cortez , 135 Idaho 561, 565, 21 P.3d 498, 502 (Ct. App. 2001).7 We conclude the prosecutor did commit mi sconduct as his argument during closing was a
misstatement of the law. While the state atte mpts to provide another interpretation, the only plausible reasoning is that the prosecutor was arguing that the ju ry could convict Coffin for injuring Chandler’s mouth even if it only found that he willfully put his hand in Chandler’s mouth without intending to injure her. In other words, the pr osecutor was arguing that Coffin could be found guilty even if the jury found that he put his hand in her m outh out of his own free will, but his intention was to retrieve the ring and not to cause injury. This is in direct contravention to jury instruc tions no. 10 and 7 as well as th e requirement of the domestic
violence statute.
A reversal of Coffin’ s conviction, however, is not warrant ed, as we conclude that the error was not so egregious that a curative admonition from the court at the time could not have remedied any consequent prejudice. Therefor e, although the prosecutor’s comments were a misstatement of the law, they do not constitute fundamental error necessitating a reversal of
Coffin’s conviction.
C. Sentence Review Upon Coffin’s conviction for domestic violen ce, the court sentenced him to a unified term of ten years with five years determinate, but suspended the sentence and placed him on probation. Coffin argues that given any view of the facts, this se ntence is excessive. 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 confin ement is necessary “to accomplish the primary objective of protecting society and to achieve a ny 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 i ndependent 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). When8 reviewing the length of a sentence, we c onsider the defendant’s entire sentence. State v. Oliver
, 144 Idaho 722, 170 P.3d 387 (2007). Coffin points to several mitigating circumstance s that he contends rendered his sentence unreasonably long. These include his expression of remorse for his conduct, the family support
that he still retain s, the part that his being under the influence of alcoho l played in the incident, and his willingness to seek treatment for an alc ohol problem. He also contends the sentencing court failed to give sufficient weight to the “n ature of the offense” which he characterizes as merely “a physical dispute about an engagement ri ng that resulted in scratch[es] to the mouth
. . . .” Upon a review of the record, we conclude the court took the “mitigating circumstances”
that Coffin asserts into account and that the sent ence imposed is not excessive. In sentencing Coffin, the court specifically no ted that it had reviewed the pr esentence report and its addendum
and an evaluation of Coffin for substance abuse a nd anger issues, and had considered the nature of the offense, the character of the offender, th e mitigating and aggravating factors present, and the objectives of sentencing. The court explicitly noted that a rider was not appropriate because the rider program did not offer the type of programs (including anger management) that the defendant required and that give n his history of alcohol abuse and resulting domestic violence towards his “female relationships ,” a significant underl ying sentence and period of probation was necessary. Despite Coffin’s attempt to minimi ze the seriousness of the altercation, it is undisputed that he was intoxicated at the time and that his victim suffered various physical injuries. Under these circumstances, we cannot say the sentence imposed was excessive.
III.
CONCLUSION Jury instruction no. 10 was not an errone ous statement of the la w in regard to the
“willfulness” element of the domestic violence st atute. And while the prosecutor did commit misconduct by misstating the law in closing argument s, Coffin did not object at the time, and we
conclude that the misconduct does not rise to th e level of fundamental error. Finally, the sentence imposed by the district court is not excessive. Accordingly, we affirm Coffin’s judgment of conviction and sentence for felony domestic violence. Judge LANSING and Judge PERRY CONCUR

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