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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket Nos. 46075/46076

STATE OF IDAHO,

Plaintiff-Respondent,

v.

BRIAN ERIC HOLLIS,

Defendant-Appellant.

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Filed: April 29, 2020

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the First Judicial District, State of Idaho, 

Kootenai County. Hon. John T. Mitchell, District Judge. 

Judgment of conviction and concurrent, unified sentence of life with twenty-five 

years determinate for lewd conduct with a minor and fifteen years determinate for 

sexual exploitation of a child, affirmed; judgment of conviction and concurrent 

sentences of fifteen years determinate for each of three counts of sexual 

exploitation of a child, affirmed. 

Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster, 

Deputy Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

BRAILSFORD, Judge

In these consolidated appeals, Brian Eric Hollis pled guilty in Docket No. 46075 to one 

count of lewd conduct, Idaho Code § 18-1508; to one count of sexual exploitation of a child, 

I.C. § 18-1507(2)(b); and to being a repeat sex offender, I.C. § 19-2520G(2). In Docket 

No. 46076, Hollis pled guilty to three counts of sexual exploitation of a child, I.C. § 18-

1507(2)(b). The district court sentenced Hollis to a unified sentence of life with twenty-five 

years determinate for lewd conduct with a minor and to fifteen years determinate for each of the 

four convictions for sexual exploitation of a child. Hollis appeals these sentences, and we affirm. 
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I.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2017, members of Hollis’s family went to a show while Hollis babysat his three 

granddaughters, ages five, four, and two. While changing the youngest granddaughter’s diaper, 

Hollis took several photographs with his cellphone of her vaginal area, including one which 

appeared to show his finger penetrating the child’s vagina. Hollis’s cellphone was linked to the 

family’s computer photo share server. When Hollis’s wife discovered the photographs, she 

confronted Hollis and also contacted her pastor. The pastor in turn contacted law enforcement. 

Eventually Hollis admitted to the pastor that he had taken the photographs. During the 

police investigation, Hollis granted the detectives permission to view his phone, and the 

detectives located the photographs on Hollis’s phone. Although Hollis did not deny taking the 

photographs, he denied penetrating the child’s vagina.

As a result of this incident, the State brought two criminal cases against Hollis, which 

jointly included one count of lewd conduct with a minor, four counts of sexual exploitation of a 

child, and one count of sexual penetration with a foreign object, I.C. § 18-6608(4)(a). The State 

also alleged in both cases that Hollis was a repeat sex offender. These allegations were based on 

Hollis’s prior conviction in 2004 for sexually abusing his daughter, who is the mother of the 

child in the photographs. Hollis entered into a plea agreement and pled guilty to lewd conduct 

with a minor, to four counts of sexual exploitation, and to being a repeat sex offender. In 

exchange, the State agreed to dismiss the sexual penetration charge and the remaining repeat 

sexual offender enhancement. The State also agreed to recommend a unified term of life with 

fifteen years determinate on the lewd conduct charge and concurrent indeterminate sentences for 

all remaining charges.

At sentencing, Hollis addressed the district court about the sexual penetration charge:

Hollis: I want to take responsibility for what I did, and so I won’t go through all 

the things that were already stated. I did do those things. The things 

that I was possibly facing, the thing that I was possibly facing, that was 

dropped according to the plea agreement I did not do, and my wife has 

asked you don’t take responsibility for something you did not do.

Court: What are you referring to?

Hollis: I’m referring to--there was a charge for sexual penetration, Your 

Honor . . . .

Court: Okay.

. . . .
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Hollis: I understand what the charge entails. . . . I didn’t do that to that extent 

that I was being accused of . . . .

Hollis’s denial of the sexual penetration conduct prompted the district court to review the 

photographs Hollis took of his granddaughter’s vaginal area. Based on this review, the court 

concluded the photograph in question did show penetration:

You told me today, and you told everybody here in this room that you 

didn’t commit the crime of sexual penetration by a foreign object, and I, out of 

respect to this child, didn’t ever look at the photographs until you made that claim 

today, and I’ve looked at those photographs, and with all due respect, I would 

disagree with your claim. I don’t know how you could claim that to be the case 

given what I just looked at.

The district court rejected the State’s sentencing recommendation and imposed an 

indeterminate life sentence with twenty-five years determinate on the lewd conduct charge with a 

repeat sex offender enhancement and concurrent determinate sentences of fifteen years for each 

of the sexual exploitation charges. Thereafter, the court denied Hollis’s motions under Rule 35 

of the Idaho Criminal Rules. Hollis timely appeals his sentences.

II.

ANALYSIS

A. Consideration of Evidence of Dismissed Charge

Hollis argues the district court abused its discretion by considering the photograph 

showing penetration when sentencing him. When a trial court’s discretionary decision is 

reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the 

lower court: (1) correctly perceived the issue as one of discretion; (2) acted within the 

boundaries of such discretion; (3) acted consistently with any legal standards applicable to the 

specific choices before it; and (4) reached its decision by an exercise of reason. State v. Herrera, 

164 Idaho 261, 270, 429 P.3d 149, 158 (2018).

Hollis challenges the district court’s consideration of the photograph showing penetration 

on two bases. First, he argues the court failed “to follow applicable legal standards which 

require that sentences be based on relevant evidence.” We disagree. “The Idaho Rules of 

Evidence, except those relating to privileges, do not apply to sentencing hearings.” State v. Hall, 

163 Idaho 744, 791, 419 P.3d 1042, 1089 (2018) (internal quotation marks omitted); see also

State v. Paz, 112 Idaho 407, 408, 732 P.2d 376, 377 (1987) (noting rules of evidence do not 

apply to sentencing proceedings). “The court may consider hearsay evidence, evidence of 
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previously dismissed charges against the defendant, or evidence of charges which have not yet 

been proved, so long as the defendant has the opportunity to object to, or to rebut, the evidence 

of his alleged misconduct.” State v. Campbell, 123 Idaho 922, 926, 854 P.2d 265, 269 (Ct. App. 

1993); see also State v. Murillo, 135 Idaho 811, 815, 25 P.3d 124, 128 (Ct. App. 2001) (ruling 

court may consider myriad of factors in imposing sentence, including defendant’s past criminal 

history and his alleged criminal conduct which was not charged or for which charges were 

dismissed). Further, “[t]he judge may consider material contained in the presentence report that 

would have been inadmissible under the rules of evidence applicable at a trial.” I.C.R. 32(e)(1). 

Accordingly, the court in this case did not violate any legal standards, as Hollis argues, by 

considering the photograph related to the dismissed charge.

Second, Hollis argues the district court abused its discretion by “using the improper 

finding [that the photograph showed penetration] to determine [his] sentence.” In support, Hollis 

asserts “the photograph does not show that his finger is inserted in the vagina.” We disagree. 

This Court’s review of the photograph establishes Hollis did penetrate the child’s vaginal 

opening consistent with the district court’s finding. Further, the district court’s finding is also

consistent with information contained in Hollis’s presentence investigation report (PSI). The 

police department’s forensic investigative report in the PSI states the photograph “show[s] a 

finger penetrating the child’s vagina.” Additionally, the investigating officer’s report in the PSI

states “one of the images that Hollis admittedly took clearly shows him penetrating the toddler’s 

vagina with one of his fingers.” Based on the evidence before the district court, we hold it did 

not abuse its discretion either by concluding the photograph showed penetration or by 

considering the photograph when sentencing Hollis.

B. Excessive Sentence

Hollis also argues his sentence is excessive. 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 
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(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). 

Hollis contends that his sentence is excessive based on the circumstances and mitigating 

factors in his case. In support, he claims his offenses were impulsive and “took place within a 

matter of seconds”; he attempted “to undo his act by deleting the images from his phone”; he 

“confessed all his actions”; he expressed “shame and has shown great remorse”; and he “has the 

support of his family members and church pastor.” 

A review of the record shows the district court was aware of the information which Hollis 

identifies as “mitigating.” The court, however, weighed this information against the aggravating 

factors and concluded, as it articulated when denying Hollis’s Rule 35 motions, that the 

sentences “are appropriate sentences given Hollis’s social history, his deviant sexual criminal 

history, and the facts of the crimes for which [the] sentences were imposed.” Further, it 

concluded “lesser sentences would depreciate the seriousness of Hollis’s crimes.” Finally, it 

concluded the sentences were “necessary for the protection of society, protection of Hollis’s

current and past victims, protection of other potential victims and the deterrence of Hollis and 

others.”

That the court did not elevate Hollis’s purported “mitigating” factors over the need to 

protect society does not establish an abuse of discretion. See State v. Felder, 150 Idaho 269, 

276-77, 245 P.3d 1021, 1028-29 (Ct. App. 2010) (“[W]hile the mitigating factors identified by 

[the defendant] may have some relevancy to sentencing, a court is not required to assess or 

balance all of the sentencing goals in an equal manner.”). The court properly considered the 

sentencing objectives of protecting society and of achieving punishment, deterrence, and 

rehabilitation. See Toohill, 103 Idaho at 568, 650 P.2d at 710 (identifying sentencing 

objectives). Accordingly, we cannot say the district court abused its discretion in sentencing

Hollis.
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III.

CONCLUSION

We hold that the district court did not abuse its discretion in sentencing Hollis. 

Accordingly, we affirm the judgment of conviction and the sentences imposed. 

Judge GRATTON and Judge LORELLO CONCUR.