1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 42418

STATE OF IDAHO ,
Plaintiff

- Respondent ,

v.
DONALD RAY YARBER, III ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) 2015 Unpublished Opinion No. 676

Filed: October 28, 2015
Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey , District Judge.
Judgment of conviction and sentences for five counts of video voyeurism, affirmed

.
James K. Ball of Manweiler , Breen, Ball & Davis, PLLC, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer , Deputy Attorney General, Boise, for respondent.

________________________________________________ MELANSON, Chief Judge Donald Ray Yarber, III, appeals from his judgment of conviction and sentence s for five
counts of video voyeurism. Specifically, Yarber asserts that the district court erred in denying his motion for judgment of acquittal and that his sentences are excessive. For the reasons set forth below, Yarber’s judgment of conviction and sentence are affirmed

. I.
FACTS AND PROCEDURE Yarber and M.B. were in a relationship for fourteen years when the relationship ended

. During a period of reconciliation, M.B. sent a number of nude images of herself to Yarber. Thereafter, M.B. terminated communication with Yarber. Yarber re sponded by calling M.B.’s place of employment hundred s of times. He also used the photos he had received from M.B. to2 post ads on Cr aigslist, purporting to be M.B. seeking sexual encounters. Hundreds of men responded to the ads and Yarber gave many men the phone number to M.B.’ s place of employment. He gave men M.B.’s address , several of whom went to her apartment seeking sex

. Among other charges, Yarber was charged with five counts of video voyeurism

. I.C. § 18

- 6609(2)(b)

. At trial before a jury , Ya rber moved for a judgment of acquittal on the video voyeurism charges , which was denied. Yarber was found guilty of the five counts

. 1 T he district

court sentenc ed Yarber to a determinate term of five years ; a consecutive unified term of five years, with a minimum period of confinement of two year s ; one consecutive unified term of five

years ; and two indeterminate terms of five years, to run concurrent ly

. Accordingly, Yarber’s aggregate sentence for the five counts is a unified term of fifteen years, with A minimum period
of confinement of seven years

. Yarber appeals , alleging the district court erred in denying his motion for judgment of acquittal and in sentencing Yarber

. A

. Motion for Judgment of Acquittal Yarber alleges that the d istrict court erred i n denying his motion for judgment of acquittal because the evidence presented to the jury was insuffi cien t to find him guilty of video voyeurism. Idaho Criminal Rule 29 provides that when a verdict of guilty is returned, the court,
on motion of the defend ant, shall order the entry of a judgment of acquittal if the evidence is insufficient to sustain a conviction of the offense. The test applied when reviewing the district court’s ruling on a motion for judgment of acquittal is to determine whether the evi dence was sufficient to sustain a conviction of the crime charged. State v. Fields , 127 Idaho 904, 912

- 13, 908 P.2d 1211, 1219

- 20 (1995). When reviewing the sufficiency of the evidence where a judgment of conviction has been entered upon a jury verdict, the evidence is sufficient to support the jury’s guilty verdict if there is substantial evidence upon which a reasonable trier of fact could have found that the prosecution sustained its burden of proving the essential elements of a crime beyond a reasonab le doubt. State v. Herrera

- Brito , 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson , 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App. 1991). We do not substitute our view for that of the jury as to the credibility of the witnesses , the weight to be given to the testimony, and the reasonable inferences to be drawn from the

1 Yarber was also found guilty of one count of telephone harassment and one count of disturbing the peace, which are not challenged on appeal.3 evidence. Knutson , 121 Idaho at 104, 822 P.2d at 1001; State v. Decker , 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we consider the evidenc e in the light most favorable to the prosecution. Herrera

- Brito , 131 Idaho at 385, 957 P.2d at 1101; Knutson , 121 Idaho at 104, 822 P.2d at 1001. In his motion for judgment of acquittal , Yarber argued that the prosecution failed to show
that he had t he intent required by the statute to be found guilty of the crime of video voyeurism. This Court exercises free review over the application and construction of statutes. State v. Reyes , 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a statute is plain and unambiguous, this Court must give effect to the statute as written, without engaging in statutory construction. State v. Burnight , 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v.
Escobar , 134 Idaho 387 , 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be given its plain, obvious, and rational meaning. Burnight , 132 Idaho at 659, 978 P.2d at 219. If the language is clear and unambiguous, there is no occasion for the court to resor t to legislative history or rules of statutory interpretation. Escobar , 134 Idaho at 389, 3 P.3d at 67. The statute at issue, I.C. § 18

- 6609
, 2 provides , in pertinent part : (2) A person is guilty of video voyeurism when, with the intent of arousing, ap pealing to or gratifying the lust or passions or sexual desires of such person or another person, or for his own or another person’s lascivious entertainment or satisfaction of prurient interest, or for the purpose of sexually degrading or abusing any othe r person:

. . . . (b) He intentionally disseminates, publishes or sells any image or images of the intimate areas of another person or persons without the consent of such other person or persons and with knowledge that such image or images were obtained with the intent set forth above.

Under subsection ( b ) , a person is guilty of video voyeurism if the following elements are met: (1) he or she intentionally disseminates, publishes, or sells any image or images of the intimate areas of another person or p ersons ; (2) without the consent o f such other person or persons; (3) with the requisite knowledge

.

2 Idaho Code Section 18

- 6609 has been amended effective July 1, 2014 , substantially changing the mens rea requirement

. However, a t the time of Yarber’s conduct, the 2004 version set forth in part here was in effect.4 In this case, it is uncontested that Yarber intentionally published images of the intimate
areas of M.B. without her consent. The sole issue here is whether Yarber had the requisite knowledge to be found guilty of video voyeurism. The knowledge required to be found guilty of video voyeurism is knowledge that the image or images were obtained with the intent of arousing, appealing to
, or gr atifying the lust or passions or sexual desires of such person or another person ; for his or her own or another person’s lascivious entertainment or satisfaction of prurient interest ; or for the purpose of sexually degrading or abusing any other person.
We must answer thr ee questions to determine whether Yarber had the requisite knowledge to be found guilty of video voyeurism . The first question is who obtained the images

. The second question is what t hat person’s intent was at the time he or she obtained the images.
Th e third question is whether Yarber knew of that person’ s intent at the time he published the images. We will address each in turn. The first question is who obtained the images that Yarber published. The term “obtain”
is not defined in the statute. Acc ordingly, we will give the term its plain, obvious, and rational meaning. See Burnigh t , 132 Idaho at 659, 978 P.2d at 219. O btain is defined as “to gain or attain possession

. . . of [something , usually ] by some planned action or method .” W EBSTER ’ S
N EW I NTERNATIONAL D ICTIONARY 1559 (3d ed. 1993)

. Although Yarber took possession of the pictures of M.B.
, there is no evidence in the record that Yarber took any action to get possession of the pictures

. M.B. testified at trial that she had taken this type of picture before and that she sent the pictures to Yarber because she knew he liked the pictures

. She also testified that Yarber
did not ask her for the pictures. Thus , it appears that M.B. ’s sending the pictures to Yarber was gratu itous and unsolicited. Accordingly, we hold that Yarber did not “obtain” the images that he published , within the meaning of the statute , because he did not use any planned action or
method to get possession of the images

. Therefore, Yarber could not hav e had any intent in receiving the images

. The person who obtained the images was M.B , who us ed a camera to take the pictures of herself. This leads to our second question

-- what M.B.’s intent was when she obtained the images. At trial, M.B. testified th at the images were obtained for a sexual pur pose. When questioned by the prosecutor, the following exchange took place:5 Q. And were these pictures taken for a sexual purpose? A. Yes. Q. What was the circumstances surrounding the taking and the sending of these photos? A. He liked them and we had been together for a long time. For sexual purposes. Q. Okay. Kind of to arouse or to appeal to him? A. Yes.
It is clear from M.B.’s testimony that she obtained the images with the intent of arousing, appealing to, or gr atifying the lust or passions or sexual desires of Yarber. The final question in determining whether Yarber had the requisite knowledge to be found guilty of video voyeurism is wheth er there was suf ficient evidence presented to the jury upon which it could have found that Yarber knew M.B. obtained the images with the intent of arousing, appealing to, or gratifying Yarbe r’s lust or passions or sexual desires. In an interview with an officer, the reco rding of which was played to the jury, Yarber’s knowledge regarding
M.B.’s intent was evident

. During the interview, the officer asked Yarber what M.B.’s purpose was in sending the images to Yarber. Yarber responded that he r purpose was sexual

. L ater in the interview, Yarber el aborated and explained that “the whole conversation was like ‘ O h I’m lonely. I wish you were in my bed.’” From Yarber’s admissions, the jury had sufficient evidence to find that Yarber knew that M.B. obtained the images with the intent of arousing, appealing to, or gratifying Yarber’s lust or passions or sexual desires. Because there was sufficient evidence presented to the jury upon which it could find Yarber guilt y of video voyeurism, the district court
did not err in denying Yarber’s motion for judgment of acquittal.
B

. Sentenc e Review Yarber alleges that the district court abused its discretion in sentencing him to a n aggregate indeterminate term of fifteen yea rs , with a minimum period of confinement of seven

years

. 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 it6 appears at the time of sentencing that confinement 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 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).
In making its sentencing determination , the district court analyzed the Toohill factors in light of the facts of Yarber’s case . Specifically, the district court relied on the following facts. Yarber and M.B. were in a relationship for fourteen years and had been living together as a couple. They were planning to get married and had planned and prep aid many of the wedding arrangements when M.B. discovered that Yarber had been unfaithful. As a result, M.B. terminated the relationship. For several weeks, they continued to communicate and see each
other until Y arb er moved out of state. Communic ation continued from a distance and
, at one point
, M.B. sent a number of nude pictures of herself to Yarber. Eventually M.B. discontinued communicating with Yarber. Yarber began calling M.B.’s place of employment many times per day for five weeks
, totaling ove r 700 calls . Yarber then posted a number of images of M.B.’s breasts and pelvic area on Craigslist. The postings were purported to be placed by M.B. and sough t partners for a variety of sexual interactions. The ads received hundreds of responses,
includ ing many nude images from men. Posing as M.B., Yarber gave many of the men M.B.’s work phone number. As a result, M.B. received a number of calls at work from unknown men. Yarber also provided men the address to M.B.’s apartment and several went to her apartment seeking sex. One individual told M.B. that he had come to fulfill her purported “rape fantasy” and attempted to kick through the door of her apartment. On several occasions, M.B. called the polic e to respond to men who would not leav e her apart ment. Eventually, a police car was stationed outside M.B.’s apartment to prevent men from approaching M.B.’s apartment. As a result of Yarber’s actions, M.B. lost her employment, where she had a successful career. In addition, M.B. left the state a nd mo ved to an unknown location . According to the district court,7 M.B. was financially and emotionally destroyed by Yarber’s actions, which forced her to leave her home and career to protect herself from Yarber and further abuse.
The district court described the facts of this case and explained that it was basing
Yarber’s sentence s on the evidence presented at trial. T he district court considered Yarber ’s lack
of a criminal history but explained that Yarber methodically harassed M.B., ruining her life and
fo rcing her to move and change jobs. In arriving at Yarber’s sentence s , the district court found several aggravating factors

. In particular, the district court emphasized Yarber’s apparent lack of remorse and failure to recognize the harm he had caused M.B

. Ultimately, the district court
concluded that Yarber’s sentence s fulfill ed the objectives of protecting society and achieve d the goals of deterrence, rehabilitation, and retribution

. T here is ample evidence in the record for this
Court to hold that the district court’s sentence s were reasonably tailored to achieve the sentencing goals of protecting society, including M.B.; deterring Yarber from committing similar future crimes; rehabilitating Yarber; and retribution for the harm Yarber caused M.B.
Acco rdingly, Yarber has not shown that the district court erred in sentencing him to an aggregate
indeterminate term of fifteen years, with a minimum period of confinement of seven years.
IV.
CONCLUSION
Yarber has not shown that the district court erred in de nying his motion for judgment of acquittal

. In addition, Yarber has not shown that the district court abused its discretion in sentencing him . Therefore, we affirm Yarber’s judgment of conviction and sentence s for five
counts of video voyeurism. Judge GUTIERREZ and Judge GRATTON, CONCUR

.