1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45243

STATE OF IDAHO ,
Plaintiff

- Respondent ,

v.

JOSHUA JAMES ALBERTS ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) Filed: April 12, 2019
Karel A. Lehrman, 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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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. Melissa Moody , District Judge.
Judgment of conviction for murder in the second degree, affirmed

. Eric D. Fredericksen, State Appellate Public Defender; Erik R. Lehtinen , Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans , Deputy Attorney General, Boise, for respondent.

________________________________________________ BRAILSFORD, Judge Joshua James Alberts appeals from his judgment of conviction for murder in the second degree, Idaho Code §§ 18

- 4001, 18

- 4003. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND In April 2015, Alberts met B riana Bliss at work and began dating her. Bliss shared two
sons with her ex

- husband, Joshua Warren. Alberts disl iked Warren and was frightened of him.
Bliss told Alberts that Warren was aggressive and had physically and emotionally abused her in the past. Alberts knew that Warren often left Bliss threatening voicemails and text messages. A few times, Alberts witnessed Warren ’s aggressive behavior first

- hand . Once, Alberts
answered Bliss ’s phone after Warren had left numerous voicemails. Warren told Alberts that he
took Warren ’s wife, and Warren was going to “wreck” and “smash” Alberts . Another time, in2 November 2015, Alberts called Warren in response to his request for Alberts’ number. A gain,
Warren accused Alberts of taking Warren ’s wife and threatened to “wreck” Alberts

. Then, in February 2016, Warren was in town and went to Bliss ’s apartment to p ick up his

sons. Warren banged on the door and yelled that he wanted to talk to Alberts. When Bliss opened the door, Warren blocked Bliss from closing the door and yelled at Alberts to come outside. Alberts refused and called the police, which prompted Warren to leave. Thereafter, Alberts began keeping his handgun in his car in case he needed to protect himself or Bliss

. A couple of weeks later
, Warren planned to pick up his sons at Bliss ’s apartment on February 20 at noon, but on February 19, Warren informed Bliss that he would like her to bring the boys to him at 6 p.m. on February 20. Alberts suggested Bliss offer Warren one hundred
dollars to pick up the boys as planned. Warren accepted this offer. On February 20, Alberts decided to confront Warr en about his treatment of Bliss

. That morning, Alberts lied to Bliss about going to run an errand

. I nstead
, Alberts went to the home of
Warren ’s parents to confront Warren

. Warren ’s car, however, was not there. Alberts waited for
Warren for five to ten minutes. When Warren did not show, Alberts drove back to Bliss ’s apartment complex, put his holster and gun on his hip
, and waited in his car for Warren to arrive to pick up the boys

. When Warren drove into the apartment complex, Alberts g ot out of his car and flagged
Warren down while walking toward Warren ’s car. Warren stopped, rolled down his window, and said something profane. Al berts stepped closer to the car. Warren motioned as though he

was going to unbuckle his seatbelt, and Albe rts assumed Warren was going for his seatbelt. Alberts then reached for his gun and shot Warren fourteen times, emptying the clip and killing
Warren , who remained seat

- belted in his car. Alberts was charged with first degree murder, and the case proceeded to trial. The State argued that Alberts had devised an elaborate plan to get Warren to Bliss ’s apartment so that
Alberts could murder Warren , including offering Warren one hundred dollars to pick up his sons. The State called fifteen witnesses, includin g residents of the apartment complex, employees of the coroner’s office, and officers who responded to the scene and investigated the case. The
State introduced various exhibits i ncluding recordings of Alberts’ arrest and his interrogation.
After the St ate rested, Alberts testified in his own defense. He claimed that he did not
intend to kill Warren when confronting him
, and Alberts did not know why he pulled the trigger3 but that it may have been due to his concern that Warren was going to get out of th e car and

come at Alberts . Alberts asserted he acted in self

- defense and in the heat of passion so he committed voluntary manslaughter or , at most, second degree murder. The district court instructed the jury on first and second degree murder, voluntary a nd involuntary manslaughter, and self

- defense. Regarding self

- def ense, the State requested a

non pattern jury instruction, providing a defendant cannot claim self

- defense if he intentionally put himself where he knew or believed he would have to invoke its aid. The proposed
instruction was based on State v. Jurko
, 42 Idaho 319 , 330, 245 P. 685, 688 (1926). Alberts’ counsel objected
, arguing the proposed instruction improperly shifted the burden from the State to prove that homicide was not justifiable. In response, the district court modified the proposed instruction to expressly state that “the burden is on the prosecution to prove beyond a reasonable doubt that the homicide was not justifiable.” The district court then inquired, “would [that addition] make [the proposed instruction] a correct statement of the law?” to which Alberts’ counsel responded affirmatively, “Yes.” Thereafter, Alberts’ counsel requested that the district court remove from the proposed instruction a sentence stating that “the ci rcumstances justifying a homicide must be such as to render it unavoidable.” Over the State’s objection, the district court removed this sentence. After making Alberts’ requested changes, the district court ultimately instructed the jury
that:
One cannot claim the benefits of self

- defense if he intentionally put himself where he knew or believed he would have to invoke its aid. If you believe from the evidence, and beyond a reasonable doubt, that [Alberts] sought a meeting with the deceased for the purpo se of provoking a difficulty with the deceased, or with the intent to take the life of the deceased or to do him such serious bodily injury as might result in death, then [Alberts] would not be permitted to justify on the ground of self

- defense, even thoug h he should thereafter have been compelled to act in his own defense. The burden is on the prosecution to prove beyond a reasonable doubt that the homicide was not justifiable. If there is a reasonable doubt that the homicide was not justifiable, you mus t find [Alberts] not guilty. The jury acquitted Alberts of first degree murder but returned a verdict for second degree
murder. The district court imposed a life sentence with thirty years determinate. Alberts timely appeals and challenges the self

- defe nse jury instruction.4 II.
STANDARD OF REVIEW Whether the jury has been properly instructed is a question of law over which we
exercise free review. State v. Severson , 147 Idaho 694, 710, 215 P.3d 414, 430 (2009). When reviewing jury instructions, we as k whether the instructions 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).
III.
ANALYSIS Alberts acknowledges that he did not object to the jury instruction on self

- defense as an incorrect statement of the law. On appeal, however, he argues it is a misstatement of the law concerning justifiable homicide. Because Alberts did not object to the jury instruction as modified, his claim of error on appeal is reviewed under the fundamental error doctrine. Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge , 121 Idaho 192, 195, 824 P.2d 123, 126 (19 92). Idaho decisional law, however, has long allowed appellate courts to consider a claim of error to which no objection was made below if the issue presented rises to the level of fundamental error. See State v. Field , 144 Idaho 559, 571, 165 P.3d 273, 285 (2007); State v. Haggard , 94 Idaho 249, 251, 486 P.2d 260, 262 (1971).
In State v. Perry , 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court conducted a comprehensive analysis of the fundamental error doctrine and the circumstances
under which the review of an unobjected

- to error is appropriate. The Perry Court held that an appellate court should reverse an unobjected

- to error when the defendant persuades the court that the alleged error: (1) violates on e or more of the defendant’s un waived c on stitutional rights; (2) is clear or obvious without the need for reference to any additional information not contained in the appellate record; and (3) affected the outcome of the trial proceedings. Id. at 226, 245
P.3d at 978. 1

1 Recently, the Idaho Supreme Court clarified the second and third prongs of the fundamental error doctrine in State v. Miller , ___ Idaho ___, ___ P.3d ___ (2019). Miller
, however, is still subject to a petition for rehearing and is not yet a final decision. Because this case’s resolution turns on the first prong of Perry , which is unaffected by Miller , we continue to cite to P erry.5 On appeal, Alberts asse rts that “if a defendant in a homicide prosecution presents prima facie evidence of self

- defense, it then becomes the State’s burden to disprove, beyond a reasonable doubt, the allegation that the killing was justified and, therefore, lawful. ” He
contends that “a ny jury instruction which lowers the State’s burden of disproving a defense of justifiable homicide is violative of due process.” Based on this assertion, Alberts contends that the district court’s jury instruction on his claim of self

- defense, wh ich was based on Jurko
, improperly lowered the State’s burden of proof and thereby violated his unwaived constitutional right to due process in satisfaction of the first prong of Perry

. Resolution of Alberts’ argument is controlled by this Court’s decision in State v. Jimenez , 159 Idaho 466, 362 P.3d 54 1 (Ct. App. 2015) . In that case, Jimenez shot his brother multiple times and was charged with aggravated battery and unlawful possession of a firearm. Id. at 469, 362 P.3d at 544. The district court gave the pattern jury instructions for self

- defense, and Jimenez did not object. Id. The jury found Jimenez guilty and he appealed
, arguing that the self

defense jury instructions misstated the law. Id. at 470, 362 P.3d at 545. Specifically, he argued
the statement that “self

- defense is only available where the defendant acts in response to the danger presented and ‘not for any other motivation’” was an inaccurate statement of the law. Id. “According to Jimene z, this alleged misstatement effectively diminished the State’s burden of proof, allowing the State to disprove Jimenez’s affirmative defense by showing that he also acted out of ‘anger or to teach [his brother] a lesson.’” Id.
This Court in Jimenez appli ed the fundamental error doctrine as articulated in Perry

. Addressing the first prong in Perry , this Court noted that the Idaho Supreme Court has held that “a shift in the burden of persuasion from the State to a defendant does not implicate the
Constitut ion.” Jimenez , 159 Idaho at 470, 362 P.3d at 545. Accordingly, this Court concluded
that: [T]here can be no violation of the United States Constitution or the Idaho Constitution when a jury instruction merely diminishes the State’s burden of disproving a d efendant’s affirmative defense. Even [assuming] that the instruction did, in fact, misstate the law a nd diminish the State’s burden o f disproving Jimenez’s affirmative defense, this does not constitute a violation of Jimenez’s due process rights under the United States Constitution or the Idaho Constitution. Jimenez has failed to meet his burden of proof under the first prong of the Perry analysis. Therefore, Jimenez has not demonstrated fundamental error. Jimenez , 159 Idaho at 471, 362 P.3d at 546 ( footnotes omitted).6 Similarly, Alberts’ appeal fails even assuming (without deciding) that the district court’s jury instruction based on Jurko was an inaccurate statement of the law. As in Jimenez , Alberts’ argument is that the instruction inappropriate ly lowered the State’s burden of proof on his claim
of self

- defense in violation of due process. This purported error is the exact same error the
Jimenez Court held is inadequate to satisfy the first prong of Perry , and the fundamental error analysis in J imenez remains sound. Alberts acknowledges that under Jimenez “a misstatement of the law of self

- defense can never be a due process violation.” Regardless, he urges this Court to overrule Jimenez as manifestly wrong pursuant to State v. H umph e rys , 134 Idaho 657, 8 P.3d 652 (2000)

. Humphreys provides, “[T]he rule of stare decisis dictates that we follow [controlling precedent] unless it is manifestly wrong, unless it has proven over time to be unjust or unwise, or unless overruling it is necessary to vi ndicate plain, obvious principles of law and remedy continued injustice.” Id. at 660, 8 P.3d at 655. In reaching the conclusion in Jimenez , this Court relied upon two United States Supreme
Court cases: [T] he Due Process Clause of the United States Const itution does not require th e State to disprove a defendant’ s affirmative defense. See Martin v. Ohio
, 480 U.S. 228, 236, 107 S. Ct. 1098, 1103, 94 L. Ed. 2d 267, 275

- 76 (1987); Patterson v. New York
, 432 U.S. 197, 210, 97 S. Ct. 2319, 2327, 53 L. Ed. 2d 281, 292 (1977). In Martin , the United States Supreme Court reiterated its holding in Patterson , acknowledging that when the Fifth Amendment was adopted and the Fourteenth Amendment ratified, the common

- law rule regarding affirmative defenses, including se lf

- defense, imposed the burden of proof upon the defendant. Martin , 480 U.S. at 235

- 36, 107 S. Ct. at 1102

- 03, 94 L. Ed. 2d at 275

- 76. Although many states subsequentl y abandoned the common

- law rule

- - requiring the prosecution to prove the absence of self

- defense once properly raised by the defendant

- - such practice was not constitutionally required. Id. The Court held that states continuing with the common

- law practice of requiring defendants to prove their affirmative defense did not violate the Constit ution. Id. Jimenez , 159 Idaho at 470, 362 P.3d at 545. Alberts acknowledges that these Supreme Court cases hold that due process does not require the prosecution to disprove an affirmative defense but contends they are inapplicable because they address state law requirements that the defendant prove the affirm ative defense

versu s the requirement in Idaho that the State disprove the defense. Regardless, this contention fails to address the rule that a jury instruction, which purportedly lowers the State ’s burden to7 disprove self

- defense, is not a due process violation. Accordingly, we are not convinced Jimenez is manifestly wrong. Moreover, even assuming Jimenez were not fatal to Alberts’ appeal, Alberts fails to meet the second and third prongs of the fundamental error doctrine, particularly following the recent
clarification of that doctrine in State v. Miller , ___ Idaho ___,
___, ___ P.3d
___,

___ (2019)

. The distr ict court granted both of Alberts’ requests to add and delete language from the
instru ction. That Alberts did not request additional changes to the instruction is clear evidence
that his decision not to do so was tactical. Id.
IV.
CONCLUSION Alberts fails to satisfy the elements of the fundamental error doctrine. Accordingly, we
affirm his judgment of conviction. Chief Judge GRATTON and Judge HUSKEY CONCUR

.