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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 44227

STATE OF IDAHO,

Plaintiff-Respondent,

v.

MICHAEL ANTHONY LOYA, JR.,

Defendant-Appellant.

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2017 Unpublished Opinion No. 500

Filed: June 27, 2017

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin 

Falls County. Hon. G. Richard Bevan, District Judge. 

Judgment of conviction and sentences, affirmed. 

Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

HUSKEY, Judge

Michael Anthony Loya, Jr. appeals from his judgment of conviction entered after a jury 

found him guilty of battery on a law enforcement officer and possession of methamphetamine. 

On appeal, Loya argues: (1) the prosecutor committed misconduct by appealing to the jury’s 

passions and prejudices during voir dire and by engendering sympathy for law enforcement 

during closing argument; (2) the district court abused its discretion in admitting evidence without 

engaging in the Idaho Rule of Evidence 404(b) balancing test; (3) Loya was denied his right to 

due process because there was a fatal variance between the charging document and the jury 

instruction; (4) the district court abused its discretion in sentencing Loya; and (5) the district 

court abused its discretion in denying Loya’s Idaho Criminal Rule 35 motion. 
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I.

FACTUAL AND PROCEDURAL BACKGROUND

An officer arrived at a house to investigate a report of stolen property and obtained 

permission from the homeowner to enter and search the home. In the hallway leading to the 

living room, there was a locked bathroom door. The homeowner did not have a key to the 

locked bathroom so she provided the officer with tools to unlock the door. When the officer 

unlocked and opened the door, he observed an individual sitting on the toilet; the toilet seat was 

down. Although the bathroom lights were off, the hallway and living room lights provided 

sufficient ambient lighting for the officer to identify the individual as Loya. 

Once the officer recognized Loya, the officer moved three to four feet away from the 

open door and stood in the living room. The officer asked Loya: “You have a warrant, don’t 

ya?” and “Remember me, from the jail?” Loya grunted and nodded his head. When Loya stood 

up, the officer told him to sit down and take his hands out of his pockets. Loya took his hands 

out of his pockets, but he did not sit down. Instead, Loya hit the officer in the face and continued 

to punch the officer several times. The officer subdued Loya with a knee strike and arrested 

Loya. When Loya was searched at the jail, a broken methamphetamine pipe containing 

methamphetamine residue was found in his shirt pocket. 

The State charged Loya with battery on a law enforcement officer, Idaho Code §§ 18-

915(3), -903(a) and/or (b), and possession of a controlled substance, methamphetamine, 

I.C. § 37-2732(c)(1). The State moved in limine to present an audio recording of the officer’s 

contact with Loya, in which the officer asked Loya: “You have a warrant, don’t ya?” and 

“Remember me, from the jail?” The State also moved in limine to present an audio recording of 

Loya’s statement about the officer, in which Loya stated: “he’s an asshole, anyway. He worked 

for the county back in the day.” After a hearing, the district court granted the State’s motion in 

limine, holding the evidence was admissible. The district court redacted Loya’s reference to the 

officer as an “asshole.” The case proceeded to trial. 

A jury found Loya guilty of battery on a law enforcement officer and possession of 

methamphetamine. The district court sentenced Loya to a unified five-year sentence, with three 

years determinate, for battery on a law enforcement officer, and a unified seven-year sentence, 

with six months determinate, for possession of methamphetamine, to be served consecutively. 
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Loya filed a timely Rule 35 motion, asking the district court to reduce the fixed portion of 

his sentence. Loya asserted he needed additional substance abuse treatment to succeed in the 

community and “[a]n earlier parole eligibility date may make treatment available earlier to 

Mr. Loya and potentially reduce the risk of further institutionalization.” Further, Loya argued an 

earlier parole eligibility date would provide an incentive for Loya to comply with programming 

rules. The district court denied Loya’s Rule 35 motion without a hearing, finding that Loya did 

not provide new or additional information to support his Rule 35 motion. Loya timely appeals. 

II.

ANALYSIS

A. The Prosecutor Did Not Commit Prosecutorial Misconduct 

Loya asserts the prosecutor committed misconduct by: (1) appealing to the passions and 

prejudices of the jury during voir dire; and (2) engendering sympathy for law enforcement during 

closing argument. Loya argues the misconduct, taken individually or together, amounts to 

fundamental error because it denied him his right to due process of law and his right to a fair 

trial, in violation of the Sixth and Fourteenth Amendments to the United States Constitution, and 

Article I, § 13 of the Idaho Constitution. The State argues Loya failed to show that any 

prosecutorial misconduct constituted fundamental error. 

While our system of criminal justice is adversarial in nature, and the prosecutor is 

expected to be diligent and leave no stone unturned, the prosecutor is nevertheless expected and 

required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in 

reviewing allegations of prosecutorial misconduct, we must keep in mind the realities of trial. Id.

A fair trial is not necessarily a perfect trial. Id. Loya acknowledges that he made no 

contemporaneous objection to the prosecutor’s voir dire or closing argument at trial. In State v. 

Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court clarified the fundamental 

error doctrine as it applies to allegations of prosecutorial misconduct. If the alleged misconduct 

was not followed by a contemporaneous objection, an appellate court should reverse when the 

defendant persuades the court that the alleged error: (1) violates one or more of the defendant’s 

unwaived constitutional 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. 
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1. The prosecutor did not commit misconduct during voir dire

Loya argues the prosecutor’s statement during voir dire improperly appealed to the 

passions and prejudices of the jury. The prosecutor stated: “You’re going to hear from the 

officer in this case. I think all my witnesses are law enforcement officers, as a matter of fact. 

And everybody knows that police get experience and training through their official duties, which 

can sometimes increase their reliability as witnesses.” This statement was a preface to the 

question: “You would start off police officers on the same level as everybody else before they 

testified and listen to what they had to say before you decided whether to believe them, wouldn’t 

you?” 

It is well established that great latitude is allowed during voir dire questioning. State v. 

Dunlap, 155 Idaho 345, 369, 313 P.3d 1, 25 (2013). Loya’s argument on appeal is predicated 

upon an isolated comment that the prosecutor made during voir dire--that police training can 

potentially increase an officer’s reliability as a witness. The written transcript cannot convey all 

the various meanings of words and phrases that are conveyed by the human voice through tone, 

inflection, and nuance. As such, the meaning of the prosecutor’s remark may have depended on 

the inflection used and cannot be determined merely from the transcript. Because of this Court’s 

inherently limited ability to review the prosecutor’s statement by appellate transcript, we look to 

the context of the statement. The prosecutor’s statement about an officer’s reliability as a 

witness preceded the prosecutor’s question to potential jurors whether they would treat officer 

testimony differently than other witnesses. The purpose of voir dire is to obtain a fair and 

unbiased jury. See State v. Laymon, 140 Idaho 768, 771, 101 P.3d 712, 715 (Ct. App. 2004) 

(“[T]he purpose of voir dire is to discover which, if any, of the potential jurors are unable to meet 

the demands such service requires.”). When read in context, the alleged inappropriate question 

can be read as part of the prosecutor’s attempt to determine bias or prejudice in potential jurors, 

not as attempting to bolster the credibility of the witness. It is the duty of the attorneys to 

address whether potential jurors would treat testimony from law enforcement officers differently 

than from other witnesses, and so, we do not find that the prosecutor’s statement during voir dire 

constituted misconduct. 

2. The prosecutor did not commit misconduct during closing argument

Loya contends the prosecutor committed misconduct during closing argument by 

engendering sympathy for the officer. Closing argument serves to sharpen and clarify the issues 
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for resolution by the trier of fact in a criminal case. State v. Phillips, 144 Idaho 82, 86, 156 P.3d 

583, 587 (Ct. App. 2007). Its purpose is to enlighten the jury and to help the jurors remember

and interpret the evidence. Id.; State v. Reynolds, 120 Idaho 445, 450, 816 P.2d 1002, 1007 (Ct. 

App. 1991). Both sides have traditionally been afforded considerable latitude in closing 

argument to the jury and are entitled to discuss fully, from their respective standpoints, the 

evidence and the inferences to be drawn therefrom. State v. Sheahan, 139 Idaho 267, 280, 77 

P.3d 956, 969 (2003); Phillips, 144 Idaho at 86, 156 P.3d at 587. Appeals to emotion, passion, 

or prejudice of the jury through the use of inflammatory tactics are impermissible. Phillips, 144 

Idaho at 87, 156 P.3d at 588. See also State v. Raudebaugh, 124 Idaho 758, 769, 864 P.2d 596, 

607 (1993); State v. Pecor, 132 Idaho 359, 367, 972 P.2d 737, 745 (Ct. App. 1998). 

During closing argument, the prosecutor stated: 

[The officer] has worked in law enforcement for a number of years. It 

takes a special person to continue to do this job in today’s anti-law enforcement 

climate. And on November 4th of 2015, that’s what he was doing. He was doing 

his job, ferreting out crime in our little town, following up on a report about a 

stolen couple of TVs at somebody’s house. 

While a reference to “anti-law enforcement” might be perceived as an inappropriate statement, it 

does not, in this case, appear to be inflammatory or designed to engender sympathy. The crime 

of battery on a law enforcement officer is, by its very nature, “anti-law enforcement.” The 

statement does not constitute misconduct and even if it was misconduct, the statement did not 

contribute to the verdict in this case. 

The prosecutor also stated: 

The last thing that [the officer] expected to find was a wanted man inside 

of a dark bathroom when he went inside that house. 

The other thing he didn’t expect to have happen was for that man to come 

out of that room with violence, violence toward a police officer, who was just 

nicely doing his job. 

This commentary, Loya argues, was an impermissible attempt to obtain a guilty verdict 

by argument aimed at engendering sympathy for the officer. Because parties are given 

considerable latitude during their closing arguments, the prosecutor’s statements are not 

misconduct. The word “nicely” does not appear to have been chosen to engender sympathy for 

the officer but rather, to highlight the lack of provocation for Loya’s violent reaction to the 

officer’s request. While the statements might be viewed as straying somewhat beyond comments 

on the evidence, they were not inflammatory. We do not find that the arguments were such that 
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there is a reasonable possibility that they altered the outcome of the trial. Thus, the prosecutor 

did not commit misconduct during closing argument. As Loya has not shown prosecutorial 

misconduct, Loya failed to establish fundamental error. 

B. Loya Has Not Preserved a Claim on Appeal That the District Court Abused Its 

Discretion in Not Conducting the Proper Analysis Under I.R.E. 404(b) 

The State moved in limine to present an audio recording of the officer’s contact with

Loya, in which the officer asked Loya: “You have a warrant, don’t ya?” and “Remember me, 

from the jail?” The State also moved in limine to present an audio recording of Loya’s statement 

while at the jail about the officer, in which Loya stated: “he’s an asshole, anyway. He worked 

for the county back in the day.” The district court held all three statements were admissible, 

explaining: 

Well, on the stipulation, then, the outstanding warrant will be clearly 

allowable by both parties and a basis of the arrest. 

Further, the court will allow the fact that the defendant was aware of this 

officer from prior experience in the jail so long as that is not overly emphasized or 

punctuated; and as with any motion in limine, things can change at trial; but the 

notion that--and this is, I’m quoting from page two of the motion--state intends to 

produce an audio recording stating he worked for the county back in the day, I 

think that, that’s fine; and the fact that he had knowledge of him as an officer in 

the jail is fine. 

I would support the objection about this “asshole” statement at this point. 

I feel that, under Rule 403, where the defendant is asking it be removed, that it be 

sanitized. His own opinion or use of that word, I believe, at this juncture, on the 

cold record before me is more prejudicial than it would be probative, although 

likely has relevance; but under 403, in my discretion at this point, I will deny it. 

On appeal, Loya argues the district court abused its discretion by not conducting the 

proper analysis under I.R.E. 404(b) before admitting the audio recording of the officer’s question 

to Loya: “Remember me, from the jail?” Loya does not argue the district court abused its 

discretion in admitting the officer’s warrant question and Loya’s statement at the jail. The State 

contends this issue is not preserved for appeal because Loya did not object at district court. We 

agree with the State. 

Appellate court review is limited to the evidence, theories, and arguments that were 

presented below. State v. Johnson, 148 Idaho 664, 670, 227 P.3d 918, 924 (2010). Issues not 

raised below generally may not be considered for the first time on appeal. State v. Fodge, 121 

Idaho 192, 195, 824 P.2d 123, 126 (1992). For an objection to be preserved for appellate review, 

either the specific ground for the objection must be clearly stated or the basis of the objection 
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must be apparent from the context. State v. Sheahan, 139 Idaho 267, 277, 77 P.3d 956, 966 

(2003).

At the motion in limine hearing, Loya’s trial counsel argued: “And the fact that the 

defendant knew [the officer], we understand that’s relevant; and the state is likely entitled to that 

regardless of our objection to that point.” This statement presupposes there was a specific 

objection from which we could determine the context of the objection. However, the record does 

not contain any written objections to the admission of that specific statement. To the extent that 

the statement constituted a verbal objection, there is no argument provided as to the basis of that 

objection. 

Loya’s trial counsel then argued:

I am a little concerned, though, with the language describing [the officer]. 

The fact that the defendant said [the officer] worked for the county back in the 

day is not so concerning to me; and obviously, the jurors may infer from that the 

county jail, and maybe [Loya’s] a jail bird and he’s been in the county jail a lot, 

and so he’s probably guilty this time, but there is some danger there. But as long 

as the state doesn’t focus extensively or more than that on the defendant’s past jail 

history, which is extensive, I think that undue prejudice that they will infer he was 

guilty in this case because of his status as being a frequent flyer so-to-speak back, 

back in the day is hopefully mitigated. 

Trial counsel’s subsequent argument only references Loya’s statement while at the jail. Trial 

counsel does not mention or reference the officer’s “remember me” question. Thus, when 

viewed in context, Loya’s argument at the motion in limine hearing regarded the admissibility of 

Loya’s statement while at the jail, not the officer’s “remember me” question. 

As there was no general or specific objection, either written or verbal, to the admissibility 

of the officer’s “remember me” question, Loya has not preserved a claim on appeal that the 

district court abused its discretion in ruling the question was admissible at trial. 

C. Loya Has Failed to Demonstrate Fundamental Error

Loya argues jury instruction 15 allowed the jury to convict him for battery on a law 

enforcement officer on a negligence alternative that was not included in the charging document. 

Loya argues he was denied his constitutional right to due process because of the fatal variance 

between the charging document and the jury instruction. The existence of an impermissible 

variance between a charging instrument and the jury instructions is a question of law over which 

we exercise free review. State v. Sherrod, 131 Idaho 56, 57, 951 P.2d 1283, 1284 (Ct. App. 

1998). Our task in resolving the issue presented is two-fold. First, we must determine whether 
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there is a variance between the information used to charge Loya with battery on a law 

enforcement officer and the instructions presented to the jury. See State v. Brazil, 136 Idaho 327, 

329, 33 P.3d 218, 220 (Ct. App. 2001). Second, if a variance exists, we must examine whether it 

rises to the level of prejudicial error requiring reversal of the conviction. Id.

Where, as here, the defendant did not object to the alleged error below, the following 

three prongs must be met to obtain relief on appeal for fundamental error: (1) the defendant 

must demonstrate one or more of the defendant’s unwaived constitutional rights were violated; 

(2) the error must be clear or obvious, without the need for any additional information not 

contained in the appellate record, including information as to whether the failure to object was a 

tactical decision; and (3) the defendant must demonstrate there is a reasonable possibility that the 

error affected the outcome of the trial. Perry, 150 Idaho at 226, 245 P.3d at 978.

The charging document charged Loya with battery on a law enforcement officer and read, 

in relevant part: 

That the Defendant, MICHAEL ANTHONY LOYA, JR., on or about the 

4th day of November, 2015, in the County of Twin Falls, State of Idaho, did 

willfully and unlawfully use force and/or violence upon the person of [the officer] 

by striking him, where the Defendant knew or had reason to know that [the 

officer] was a police officer and did commit said battery while [the officer] was 

engaged in the performance of his duties, in violation of Idaho Code Sections 18-

915(3) and 18-903(a). 

(Emphasis added). Jury instruction 15 instructed the jury as follows: 

In order for the defendant to be guilty of Count I, Battery on a Police 

Officer, the State must prove each of the following: 

1. On or about November 4, 2015, 

2. in the State of Idaho, 

3. the defendant, MICHAEL ANTHONY LOYA, JR., committed a 

battery, 

4. upon [the officer],

5. by willfully and unlawfully using force and/or violence upon the 

person of [the officer] by striking him, and 

6. at the time of the offense, [the officer] was a police officer, and 

7. the offense was committed while [the officer] was engaged in the 

performance of his duties, and 

8. MICHAEL ANTHONY LOYA, JR. knew or reasonably should have 

known that [the officer] was a police officer.

If any of the above has not been proven beyond a reasonable doubt, you 

must find the defendant not guilty. If each of the above has been proven beyond a 

reasonable doubt, then you must find the defendant guilty. 

(Emphasis added).
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Here, there is no variance because both the charging document and the jury instruction 

contain a negligence standard. The charging document provided that Loya “knew or had reason 

to know” the officer was a police officer. “Had” is the simple past tense of the verb “to have,” 

which means to hold, keep, or retain. WEBSTER’S THIRD NEW INT’L DICT. 1039 (3d ed. 1993). 

“Reason to know” is defined as: 

Information from which a person of ordinary intelligence--or of the superior 

intelligence that the person may have--would infer that the fact in question exists 

or that there is substantial enough chance of its existence that, if the person 

exercises reasonable care, the person can assume the fact exists. 

BLACK’S LAW DICTIONARY 1294 (8th ed. 2004). Thus, “had reason to know” is a negligence 

standard as it means that at the time of the altercation, based on the information available, Loya 

would have inferred that the officer was a police officer, or that there was a substantial enough 

chance that Loya could assume the officer was a police officer. See Barab v. Plumleigh, 123 

Idaho 890, 894, 853 P.2d 635, 639 (Ct. App. 1993) (because there are no facts to support an 

inference that the defendants knew or had any reason to know of a defect, a claim that defendants 

negligently failed to warn the plaintiff of a known, dangerous condition cannot be established); 

Goodrich v. Seamands, 870 P.2d 1061, 1065 (Wyo. 1994) (“Necessary to every negligence 

action is proof that the defendant owed the plaintiff a duty. In this case the [defendants] had a 

duty to disclose only if they knew or had reason to know of the defects.”). 

The jury instruction provided that Loya “knew or reasonably should have known” the 

officer was a police officer. “Reasonably” means “in a reasonable manner,” and “reasonable” 

means “not conflicting with reason” and “being or remaining within the bounds of reason.” 

WEBSTER’S THIRD NEW INT’L DICT. 1892 (3d ed. 1993). The word “should” has the function of 

“express[ing] . . . obligation.” WEBSTER’S THIRD NEW INT’L DICT. 2104 (3d ed. 1993). In other 

words, the knowledge that the officer was an officer was considered to be an obligation because 

there was a substantial chance of the fact’s existence and that it would be unreasonable not to 

know the fact. Like “had reason to know,” “reasonably should have known” is also a negligence 

standard. See State v. Blake, 133 Idaho 237, 242, 985 P.2d 117, 122 (1999) (by adding “should 

have known” in the element instruction, the instruction allowed the jury to convict the defendant 

under a negligence standard).

In State v. Page, 135 Idaho 214, 16 P.3d 890 (2000), the issue was whether the jury was 

properly instructed as to the burden of proof when the jury instruction stated: “the defendant 
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knew or had reason to know [the officer] was a peace officer.” Id. at 220, 16 P.3d at 896. The 

Court held: “Reading the instructions as a whole, it is clear that the jury was properly instructed 

on the burden of proof. The jury was required to find beyond a reasonable doubt that Page knew 

Rogers was a police officer.” Id. at 221, 16 P.3d at 897. Page interpreted the meaning of “had 

reason to know” as meaning “know.” Id. “Know” is defined as “to recognize” and “to have 

acquaintance or familiarity with through experience or acquisition of information or hearsay.” 

WEBSTER’S THIRD NEW INT’L DICT. 1252 (3d ed. 1993). Because “had reason to know” and 

“reasonably should have known” have the same meaning, we can conclude that under Page, 

“reasonably should have known” is also interpreted to mean “know.” Thus, there was no 

variance between the charging document and the jury instruction because both required Loya to 

have knowledge that the officer was a police officer. Because there is no variance, we need not 

examine prejudicial error. 

Even if there was a variance, the variance was not fatal. A variance is fatal if it amounts 

to a constructive amendment. State v. Jones, 140 Idaho 41, 49, 89 P.3d 881, 889 (Ct. App. 

2003). A constructive amendment, as opposed to a mere variance, occurs if a variance alters the 

charging document to the extent the defendant is tried for a crime of a greater degree or a 

different nature. Id.; State v. Colwell, 124 Idaho 560, 566, 861 P.2d 1225, 1231 (Ct. App. 1993). 

In other words, a variance between a charging document and a jury instruction requires reversal 

only when it deprives the defendant of fair notice of the charge against which he or she must 

defend or leaves him or her open to the risk of double jeopardy. State v. Wolfrum, 145 Idaho 44, 

47, 175 P.3d 206, 209 (Ct. App. 2007). The notice element requires courts to determine whether 

the record suggests the possibility that the defendant was misled or embarrassed in the 

preparation or presentation of his or her defense. State v. Windsor, 110 Idaho 410, 418, 716 P.2d 

1182, 1190 (1985).

In this case, any variance was not fatal because it did not deprive Loya of fair notice of 

the charges against him. The evidence Loya needed to present in order to defend against the 

charge that he “knew or had reason to know” the officer was a police officer was the same 

evidence necessary to present in order to refute that Loya “knew or reasonably should have 

known” the officer was a police officer. As Loya would have had to produce the same evidence, 

Loya had fair notice of the charge against which he must defend. The State presented testimony 

from the officer that the officer was in uniform and Loya was familiar with the officer and Loya 
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acknowledged he knew the officer from a previous encounter. The State also presented evidence 

that although Loya was in a dark bathroom, the lighting from the living room and hallway 

provided enough ambient light for the officer to recognize Loya. Loya presented no evidence or 

argument that he did not know the officer or that there was insufficient information for Loya to 

infer that the officer was a police officer. Because Loya had fair notice and was not prejudiced 

in the presentation of his defense, any variance between the charging document and the jury 

instruction was not fatal. As such, Loya has failed to demonstrate fundamental error. 

D. Loya’s Sentences for Battery on a Law Enforcement Officer and Possession of 

Methamphetamine Were Not Excessive 

Loya argues the district court abused its discretion when it imposed excessive sentences. 

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). 

Loya argues the district court failed to consider mitigating factors in determining 

appropriate sentences. These factors consist of Loya being aware of his alcohol problem, his 

interest in seeking treatment for alcohol abuse, his supportive family, and his remorse. 

The district court imposed a unified five-year sentence, with three years determinate, for 

battery on a law enforcement officer and a unified seven-year term, with six months determinate,

for possession of methamphetamine. At the sentencing hearing, the district court observed some 

mitigating factors. However, the district court expressed its concern about Loya, stating:
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It could simply be that you are a very anti-social young man who is just not really 

respecting others, whether it’s people within the jail system itself, whether it’s coinmates, whether it’s jailers who you are trying to bribe, whether it’s the laws of 

our community and policemen who are tasked to enforce them. 

That to me is, frankly, the biggest issue here, when you couple that with 

your alcohol troubles and your lack of a desire. You use the words, I think, “F it,”

in the PSI in terms of your attitude once you came out on parole and began your 

spiral. And someone who has got that attitude and who is on parole and really is 

unsupervisable gives me pause as I consider what I do today. 

The district court recognized there was opportunity for Loya in prison “to show you deserve 

probation, show you are willing to come out and actually parole and that you are willing to come 

out and maybe do better with some growth and time away than you have done so far.” The 

district court explained its sentence, stating: 

So that’s why I am choosing a little different sentence than what the state 

or you have recommended today. But again, my effort is to note that you haven’t 

taken advantage of treatment opportunities that have been made available to you 

since you began in the criminal justice system and even up through and including 

your time on parole and in the jail. 

You were in violation status when this happened; and so continued 

community service, I think, is going to take some time to get there. You were 

avoiding supervision and engaging in lawless behaviors, which ended up with this

altercation with the officer. 

There’s also the issues in the jail that have been referenced and your 

overall lack of remorse as stated in your allocution. 

Loya’s argument that the district court failed to consider mitigating factors during 

sentencing has no merit. The district court recognized the testimony of Loya’s uncle, but 

determined Loya’s “history is the opposite of that and shows [a] young man who’s very much 

potentially, as [trial counsel] said, caught in the throes of juvenile adolescence behavior due to 

alcohol.” The district court also found that Loya has not taken advantage of treatment 

opportunities, was on probation when he committed the crimes in this case, and lacked remorse. 

The district court had the discretion to give greater weight to certain factors and sentenced Loya 

accordingly. Loya has failed to show, under any view of the facts, that his sentences were a clear 

abuse of discretion. Therefore, we hold that the district court did not abuse its discretion, and 

Loya’s sentences for battery on a law enforcement officer and possession of methamphetamine 

were not excessive. 
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E. The District Court Did Not Abuse Its Discretion in Denying Loya’s Idaho Criminal 

Rule 35 Motion

Loya argues the district court abused its discretion when it denied Loya’s Rule 35 motion 

for a sentence reduction. A motion for reduction of sentence under Rule 35 is essentially a plea 

for leniency, addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 

319, 144 P.3d 23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 

1989). In presenting a Rule 35 motion, the defendant must show that the sentence is excessive in 

light of new or additional information subsequently provided to the district court in support of 

the motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). An appeal from 

the denial of a Rule 35 motion cannot be used as a vehicle to review the underlying sentence 

absent the presentation of new information. Id. Because no new or additional information in 

support of Loya’s Rule 35 motion was presented, the district court did not abuse its discretion. 

III.

CONCLUSION

First, Loya failed to establish fundamental error because the prosecutor did not commit 

misconduct. Second, Loya has not preserved his claim on appeal that the district court abused its 

discretion in failing to conduct an I.R.E. 404(b) analysis because Loya did not object to the 

admission of the officer’s “remember me” question at trial. Third, Loya failed to establish 

fundamental error because there was no variance between the charging document and the jury 

instruction. Fourth, the district court did not abuse its discretion in sentencing Loya. Finally, the 

district court did not abuse its discretion in denying Loya’s Rule 35 motion. Accordingly, 

Loya’s judgment of conviction and sentences are affirmed. 

Chief Judge GRATTON and Judge MELANSON CONCUR.