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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.

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2015 Unpublished Opinion No. 676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THIS IS AN UNPUBLISHED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 sentences 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 responded by calling M.B.’s 

place of employment hundreds of times. He also used the photos he had received from M.B. to 
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post ads on Craigslist, 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, Yarber moved for a judgment of acquittal on the video 

voyeurism charges, which was denied. Yarber was found guilty of the five counts.

1 The district 

court sentenced Yarber to a determinate term of five years; a consecutive unified term of five 

years, with a minimum period of confinement of two years; one consecutive unified term of five 

years; and two indeterminate terms of five years, to run concurrently. 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 district court erred in denying his motion for judgment of acquittal 

because the evidence presented to the jury was insufficient 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 defendant, 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 evidence 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 reasonable 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. 
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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 evidence 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 the 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 resort 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, 

appealing 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 other 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 persons; (2) without the consent of 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, at the time of Yarber’s conduct, the 2004 version

set forth in part here was in effect.
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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 gratifying 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 three 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 that person’s intent was at the time he or she obtained the images. 

The 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. Accordingly, we will give the term its plain, obvious, and rational 

meaning. See Burnight, 132 Idaho at 659, 978 P.2d at 219. Obtain is defined as “to gain or 

attain possession . . . of [something, usually] by some planned action or method.” WEBSTER’S 

NEW INTERNATIONAL DICTIONARY 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 

gratuitous 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 have had any intent in 

receiving the images. The person who obtained the images was M.B, who used 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 that the images were obtained for a sexual purpose. When questioned by 

the prosecutor, the following exchange took place:
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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 gratifying 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 whether there was sufficient 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 Yarber’s lust or passions or sexual desires. In an interview 

with an officer, the recording 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 her purpose was sexual. Later in

the interview, Yarber elaborated and explained that “the whole conversation was like ‘Oh 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 guilty of video voyeurism, the district court 

did not err in denying Yarber’s motion for judgment of acquittal. 

B. Sentence Review

Yarber alleges that the district court abused its discretion in sentencing him to an

aggregate indeterminate term of fifteen years, 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 it 
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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). 

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 prepaid 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 Yarber moved out of state. Communication 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 over 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 

sought partners for a variety of sexual interactions. The ads received hundreds of responses, 

including 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 

police to respond to men who would not leave her apartment. 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 and moved to an unknown location. According to the district court, 
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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 sentences on the evidence presented at trial. The district court considered Yarber’s lack 

of a criminal history but explained that Yarber methodically harassed M.B., ruining her life and

forcing her to move and change jobs. In arriving at Yarber’s sentences, 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 sentences fulfilled the objectives of protecting society and achieved the 

goals of deterrence, rehabilitation, and retribution. There is ample evidence in the record for this 

Court to hold that the district court’s sentences 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. 

Accordingly, 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 denying 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 sentences for five 

counts of video voyeurism. 

Judge GUTIERREZ and Judge GRATTON, CONCUR.