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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 42155

STATE OF IDAHO,

Plaintiff-Respondent,

v.

JUAN ROBERTO JIMENEZ,

Defendant-Appellant.

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2015 Opinion No. 62

Filed: October 2, 2015

Stephen W. Kenyon, Clerk

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

Falls County. Hon. Randy J. Stoker, District Judge. 

Judgment of conviction and sentences for aggravated battery with a firearm and 

unlawful possession of a firearm, with a persistent violator enhancement, 

affirmed.

Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

GUTIERREZ, Judge

Juan Roberto Jimenez appeals from his judgment of conviction after he was found guilty 

of aggravated battery with a firearm and unlawful possession of a firearm, as well as being a 

persistent violator. For the reasons set forth below, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Jimenez and his brother, Jorge Alvarado, had a tense relationship. On February 9, 2013, 

the two engaged in several heated telephone conversations, concluding with Alvarado telling 

Jimenez he was coming over to Jimenez’s house. In response to this perceived threat, Jimenez 

secured a gun from a friend. When Alvarado arrived, he got out of his car in front of Jimenez’s 

house. The details of the events following Alvarado’s arrival are disputed. During trial, Jimenez 
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testified that he discharged warning shots into the ground in response to Alvarado’s threats and 

advances and that Alvarado was armed and pointing a gun at his head. In contrast, Alvarado 

testified that he was unarmed, having left his gun in his car, and that Jimenez shot him twice 

initially and then another three or four times after Alvarado tripped over a curb and fell to the 

ground. Alvarado sustained two bullet wounds in each leg and one bullet wound in his lower 

back. 

Jimenez was charged with aggravated battery enhanced with the use of a firearm in its 

commission, Idaho Code §§ 18-903, 18-908, 19-2520, and with unlawful possession of a firearm 

with a persistent violator sentence enhancement, I.C. §§ 18-3316, 19-2514. Jimenez requested a 

self-defense instruction during the jury instruction conference. The court gave the pattern jury 

instructions for self-defense, Idaho Criminal Jury Instructions 1517, 1518, and 1519. Jimenez 

did not object to those instructions. Each of them referenced a “reasonable person” standard. 

During closing arguments, the prosecutor suggested that the jurors themselves were the 

“community ‘reasonable person.’” The jury found Jimenez guilty of aggravated battery with a 

weapons enhancement, unlawful possession of a firearm, and being a persistent violator of the 

law. 

Prior to sentencing, Jimenez filed a motion for a new trial, citing to newly discovered 

evidence. He supported his motion with affidavits from two witnesses who swore to having 

conversations with Alvarado after the encounter at issue. The witnesses averred that Alvarado 

made statements regarding his stashing of the gun after being shot and his intent to harm Jimenez 

during the encounter. The district court denied this motion, finding that the newly discovered 

evidence would not probably produce an acquittal. 

The district court sentenced Jimenez to a unified sentence of twenty-eight years with 

eight years determinate on the aggravated battery conviction and a concurrent sentence of five 

years determinate for the unlawful possession of a firearm conviction. Jimenez appeals.

II.

ANALYSIS

Jimenez raises four issues on appeal. First, Jimenez contends that the district court 

committed fundamental error by providing an erroneous self-defense jury instruction. Second, 

he contends that the prosecutor committed misconduct during closing arguments by 

mischaracterizing the “reasonable person” standard and that this misconduct constituted 
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fundamental error. Third, Jimenez argues that the district court abused its discretion in denying 

his motion for a new trial. Finally, Jimenez asserts that the district court abused its sentencing 

discretion. We address each issue in turn.

A. Jury Instructions

Jimenez argues the trial court committed fundamental error by providing an erroneous 

jury instruction relating to his self-defense claim. 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 ask 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). Here, Jimenez requested the court give the 

jury a self-defense instruction and did not object to the pertinent jury instruction at trial. 

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 (1992). However, when a defendant fails 

to object to a jury instruction before the trial court, we will still review the jury instruction for 

fundamental error. State v. Adamcik, 152 Idaho 445, 472, 272 P.3d 417, 444 (2012). To prove 

fundamental error, a defendant must persuade the court that the alleged error: (1) violated 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. State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 

(2010). 

The instruction Jimenez takes issue with is the standard Idaho Criminal Jury 

Instruction 1517. This instruction enumerates the five elements required to find that a defendant 

acted in self-defense: (1) the defendant must have believed that the defendant was in imminent 

danger of bodily harm; (2) the defendant must have believed that the action the defendant took 

was necessary to save the defendant from the danger presented; (3) a reasonable person, under 

similar circumstances, would have believed that the defendant was in imminent danger of bodily 

injury and believed that the action taken was necessary; (4) the defendant must have acted only 

in response to that danger and not for some other motivation; and (5) the defendant’s right of 

self-defense ends when there is no longer any reasonable appearance of danger. I.C.J.I. 1517. 

Once a defendant asserts self-defense, the burden is on the prosecution to prove beyond a 
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reasonable doubt that the defendant has not established at least one of the elements of selfdefense. I.C.J.I. 1517.

Jimenez argues the fourth element of the standard instruction misstates the law by 

instructing the jury that self-defense is only available where the defendant acts in response to the 

danger presented and “not for any other motivation.” He contends that this instruction suggests 

that a defendant’s use of self-defense is not justifiable if the defendant, in addition to responding 

to the danger presented, is also motivated to act by some other factor. According to Jimenez, 

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 

[Alvarado] a lesson.” Jimenez avers that diminishing the State’s burden of disproving his 

affirmative defense violated his constitutional right to due process, thereby satisfying the first 

prong of the Perry analysis. He suggests that “allowing the State to disprove a fact that is not an 

element of self-defense is the equivalent of not requiring the State to disprove self-defense at 

all.” This raises the question of whether the Due Process Clause of the United States 

Constitution or the Due Process Clause of the Idaho Constitution requires the State to disprove a 

defendant’s affirmative defense. We hold that they do not.1

“In a criminal trial, the State must prove every element of the offense, and a jury 

instruction violates due process if it fails to give effect to that requirement.” Middleton v. 

McNeil, 541 U.S. 433, 437 (2004) (per curiam). However, the Due Process Clause of the United 

States Constitution does not require the State to disprove a defendant’s affirmative defense. See

Martin v. Ohio, 480 U.S. 228, 236 (1987); Patterson v. New York, 432 U.S. 197, 210 (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 commonlaw rule regarding affirmative defenses, including self-defense, imposed the burden of proof 

upon the defendant. Martin, 480 U.S. at 235-36. Although many states subsequently abandoned 

 

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The Idaho Constitution contains a provision protecting a defendant’s right to due process 

that is nearly identical to the Fourteenth Amendment. Compare IDAHO CONST. art I, § 13 (“No 

person shall . . . be deprived of life, liberty or property without due process of law.”) with U.S.

CONST. amend. XIV § 1 (“nor shall any State deprive any person of life, liberty, or property, 

without due process of law”). Jimenez provides no argument for why this Court should interpret 

the Idaho Constitution differently than the United States Constitution to support his claim of a 

due process violation. And, we find no reason to interpret the Idaho Constitution as providing 

more protection of a defendant’s right to due process than the United States Constitution. 
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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 Constitution. Id.

The Idaho Supreme Court has followed this precedent, holding that a shift in the burden 

of persuasion from the State to a defendant does not implicate the Constitution. State v. Mubita, 

145 Idaho 925, 942, 188 P.3d 867, 884 (2008), abrograted in part on other grounds by Verska v. 

Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011). Therefore, contrary to 

Jimenez’s assertion, there 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 

defendant’s affirmative defense.

Even if we were to assume that the instruction did, in fact, misstate the law2and diminish 

the State’s burden of 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. 

B. Prosecutorial Misconduct

Jimenez next contends that the prosecutor committed misconduct by misstating the law 

regarding the reasonable person standard during closing arguments. Specifically, Jimenez 

asserts that the prosecutor’s conduct “invit[ed] the jury to create their own ‘reasonable person’ 

standard, which deprived Mr. Jimenez of a right essential to his self-defense assertion” and 

violated his “due process right to a fair trial.” 

Jimenez made no contemporaneous objection to the prosecutor’s closing statement at 

trial. In Perry, the Idaho Supreme Court clarified the fundamental error doctrine as it applies to 

allegations of prosecutorial misconduct. Perry, 150 Idaho 209, 245 P.3d 961. 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 misconduct rises to the level of 

fundamental error. Id. at 228, 245 P.3d at 980.

 

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This Court remains mindful that the Idaho Criminal Jury Instructions are deemed 

presumptively correct. See McKay v. State, 148 Idaho 567, 571 n.2, 225 P.3d 700, 704 n.2 

(2010); State v. Merwin, 131 Idaho 642, 647, 962 P.2d 1026, 1031 (1998). 
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The reasonable person language Jimenez takes issue with on appeal appeared in the selfdefense jury instruction, I.C.J.I. 1517:

3. The circumstances must have been such that a reasonable person, 

under similar circumstances, would have believed that the defendant was in 

imminent danger of bodily injury and believed that the action taken was 

necessary.

. . . .

In deciding upon the reasonableness of the defendant’s beliefs, you should 

determine what an ordinary and reasonable person might have concluded from all 

the facts and circumstances which the evidence shows existed at that time, and not 

with the benefit of hindsight.

The danger must have been present and imminent, or must have so 

appeared to a reasonable person under the circumstances. A bare fear of bodily 

injury is not sufficient to justify a battery. The defendant must have acted under 

the influence of fears that only a reasonable person would have had in a similar 

position.

(emphasis added). The prosecutor referenced the reasonable person standard to the jury early 

during his closing arguments, prior to discussing I.C.J.I. 1517:

You are allowed and encouraged under [Instruction 2] to use your everyday 

experiences and your common sense to decide what happened because you, the 

jury, are the community “reasonable person.” When the instructions that you 

were read indicated what would a reasonable person do, well, you are the 

reasonable person. What would a reasonable person in the community do.

. . . And reason and common sense is going to be a constant theme in your 

deliberations, as I’ve said, that you are the community’s barometer as to what is 

reasonable and what a reasonable person would do under the circumstances.

(emphasis added). Then, regarding I.C.J.I 1517, the prosecutor stated:

Now, in order to find [Jimenez] acted in self-defense, that instruction tells you 

that all of these points, all these five things on that instruction have to be met. . . . 

Number three, that--and this is where you get to interject your reason and 

common sense--number three, that a reasonable person under similar 

circumstances would have believed that he was in imminent danger of bodily 

injury and believed, that the reasonable person would have believed that shooting 

his brother was necessary.

(emphasis added). 

Prosecutorial misconduct may so infect the trial with unfairness as to make the resulting 

conviction a denial of due process under the Fourteenth Amendment to the United States 

Constitution. Greer v. Miller, 483 U.S. 756, 765 (1987); Perry, 150 Idaho at 227, 245 P.3d at

979; State v. Gamble, 146 Idaho 331, 344, 193 P.3d 878, 891 (Ct. App. 2008). To constitute a 

due process violation, the prosecutorial misconduct must result in the denial of the defendant’s 
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right to a fair trial. Gamble, 146 Idaho at 344, 193 P.3d at 891. However, as discussed above, 

the Due Process Clause of the Fourteenth Amendment does not require the State to disprove a 

defendant’s affirmative defense. See Martin, 480 U.S. at 235-36; Mubita, 145 Idaho at 942, 188 

P.3d at 884. There can be no violation of the United States Constitution or the Idaho 

Constitution when the State’s burden of disproving a defendant’s affirmative defense is 

diminished.

Jimenez’s prosecutorial misconduct argument is premised on the prosecutor’s alleged 

mischaracterizations of the reasonable person standard that appeared in the self-defense jury 

instruction. He argues that the misstatements “invit[ed] the jury to create their own standard of 

proof.” He points to State v. Erickson, 148 Idaho 679, 227 P.3d 933 (Ct. App. 2010), where the 

prosecutor misrepresented the standard of “proof beyond a reasonable doubt,” effectively

diminishing the State’s burden of proving the elements of the charged crime. Id. at 685-86, 227 

P.3d at 939-40. We held that the prosecutor’s misstatement of the burden of proof deprived the 

defendant “of a right essential to his defense.” Id. at 686, 227 P.3d at 940. However, this case is

distinguishable from Erickson; the prosecutor’s misstatement in Erickson diminished the State’s 

burden of proof for an element of the crime, whereas the alleged misstatement here would only 

have diminished the State’s burden of disproving an element of the defendant’s affirmative 

defense. Jimenez does not argue that the alleged mischaracterization impacted the prosecutor’s 

ability to establish an element of the crime itself. 

Even if we were to assume that the prosecutor mischaracterized the reasonable person 

standard, the effect of the misstatement would have been a diminishment of the State’s burden of 

disproving Jimenez’s affirmative defense. Because neither the United States Constitution’s nor 

the Idaho Constitution’s Due Process Clause are implicated when the State’s burden of 

disproving an affirmative defense is diminished, Jimenez has failed to meet his burden of 

showing fundamental error under the first prong of the Perry analysis.

C. Motion for New Trial

Jimenez also asserts that the district court erred by denying his motion for a new trial 

under Idaho Criminal Rule 34 and Idaho Code § 19-2406. Specifically, he argues that the court 

improperly concluded that the newly discovered testimonial evidence would not probably 

produce an acquittal.
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The denial of a motion for a new trial is reviewed under an abuse of discretion standard. 

State v. Egersdorf, 126 Idaho 684, 687, 889 P.2d 118, 121 (Ct. App. 1995). When a trial court’s 

discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry

to determine: (1) whether the lower court correctly perceived the issue as one of discretion; 

(2) whether the lower court acted within the boundaries of such discretion and consistently with 

any legal standards applicable to the specific choices before it; and (3) whether the lower court 

reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 

1331, 1333 (1989). Because a motion for a new trial based upon newly discovered evidence 

involves both factual and legal questions, “[a]n abuse of discretion will be found if the trial 

court’s findings of fact are not supported by substantial evidence or if the trial court does not 

correctly apply the law.” State v. Stevens, 146 Idaho 139, 144, 191 P.3d 217, 222 (2008). 

A motion for a new trial based on newly discovered evidence must disclose: (1) that the 

evidence is newly discovered and was unknown to the defendant at the time of the trial; (2) that 

failure to learn of the evidence was due to no lack of diligence on the part of the defendant; 

(3) that the evidence is material, not merely cumulative or impeaching; and (4) that it will 

probably produce an acquittal. State v. Drapeau, 97 Idaho 685, 691, 551 P. 972, 978 (1976). 

“Motions for a new trial based on newly discovered evidence are disfavored and should be

granted with caution, reflecting the importance accorded to considerations of repose, regularity 

of decision making, and conservation of scarce judicial resources.” Stevens, 146 Idaho at 144, 

191 P.3d at 222.

In support of his motion for a new trial, Jimenez presented affidavits of two new 

witnesses who allegedly spoke with Alvarado after the incident at issue. The information within 

the affidavits corroborated trial testimony that Alvarado was coming over to Jimenez’s house to 

harm him and that Alvarado had a gun during the encounter. The affidavit from the first witness 

stated that Alvarado told the witness, “yeah I meant to kill that fool” and that Alvarado had 

“stashed the gun” he had been carrying after he was shot. The affidavit from the second witness 

stated that the witness asked Alvarado why Jimenez would shoot him, and Alvarado responded, 

“Because [Jimenez] knew I was coming over to beat his ass.” 

During trial, Jimenez’s entire defense hinged upon whether he was justified in defending 

himself. During the district court hearing on the motion, Jimenez asserted that “if the jury knew 
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things contained in both these affidavits in their deliberation, they probably would have acquitted 

the defendant.” The district court disagreed.

The district court clearly acknowledged its discretion in denying Jimenez’s motion for a 

new trial. In its ruling on the motion, the district court found that the evidence was newly 

discovered, its absence was not due to lack of diligence on the part of the defendant, and it was 

material. However, regarding the final element, the court reasoned:

The real issue for me is that [sic] the last element, which is would this 

evidence probably have produced an acquittal. And as I heard this trial and I--

when the jury went out, I said to myself, you know, there’s one of two things 

that’s going to happen here. They’re either going to believe that [Alvarado] had a 

gun, and [Jimenez] shot back at him in self-defense, which would have, in itself, 

have [sic] produced an acquittal, or they’re going to conclude that even if all that 

happened, that the problem with the self-defense argument in this case is that 

[Jimenez] used excessive force. And the conclusion that would have supported 

that is that [Alvarado] was shot in the back by one of these shots. I said, I wonder 

how the jury’s going to react to that argument, which I think is one that the State 

made, by showing that even though self-defense was present, you lose it if you 

use excessive force.

You add to that a question as to the credibility of [Jimenez] himself with 

regard to what he did with his own gun. By that I mean there was testimony from 

him that he threw it out into the yard and then testimony from the police that they 

ultimately found it concealed under a cushion in his house. That did not sit well 

in terms of credibility for this defendant because I think that was a material 

dispute--well, not material dispute. Material difference in explaining how the 

incident happened. Didn’t make any sense to me, and I don’t know whether it 

made any sense to this jury or not.

So here’s the point I’m making: This jury certainly had evidence that they 

could have concluded, irrespective of the information in the affidavits of [the two 

witnesses], that [Alvarado], in fact, had a gun and that [Jimenez] was operating in 

self-defense when he shot back. All of that information was in this record, and I 

certainly agree with the defendant that the testimony of these two individuals 

would help support that finding. 

The other thing the jury could have concluded in this case, though, is that 

even if [Alvarado] had a gun, and they believed everything [Jimenez] said about 

the fear that he had and the fact that he saw [Alvarado] with the gun and so forth, 

the question is whether the number of times that he shot back at his brother was 

excessive, and again, it was undisputed that one of those shots was in 

[Alvarado’s] back, which certainly would lead 12 people to conclude that’s 

excessive force when somebody’s running away from you, and you shoot them. 

So maybe they found the defendant guilty in this case because, A, they didn’t 

believe the defendant’s testimony and [another witness’s] testimony that 

[Alvarado] had a gun, [Jimenez] used excessive force by shooting him in the back 
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as he was retreating and thus negating the self-defense argument. I don’t know. 

We have no way of knowing.

And that’s the problem with this motion for new trial, because I cannot 

find that even with the presentation of the two testimonies from [the two 

witnesses] that that would probably produce an acquittal because the jury could 

have found either way, and if they found the second way, in other words, under 

the excessive force theory, their testimony really would not have made that much 

difference.

The district court concluded, “[Jimenez] has not carried the burden of convincing this court that a 

new trial is warranted in this case.” The district court based its denial upon the fourth Drapeau

requirement. Jimenez now argues that the district court erred in finding that this requirement 

was not satisfied because the court based its conclusion on an erroneous presumption that 

Alvarado was retreating when Jimenez shot him in the back. However, the inferences that the 

court drew from the evidence presented during the trial are irrelevant to its finding regarding the 

fourth Drapeau element, nor are the court’s inferences indicative of the jury’s conclusions.

In determining whether the newly discovered evidence would probably produce an 

acquittal, as required under Drapeau, the court considered the evidence presented to the jury 

during the trial. Based upon that evidence, the court reasoned that the jury had substantial 

evidence to support its guilty verdict on one of two theories: either Alvarado was unarmed when 

Jimenez shot him, or Jimenez used excessive force when he acted in self-defense. The court 

acknowledged that because there were conflicting testimonies about the details of the encounter,

the proffered evidence would help support Jimenez’s self-defense argument. But because 

evidence suggesting that Alvarado had a gun and intended to harm Jimenez was already 

presented to the jury through the testimonies of a trial witness and Jimenez himself, the court 

was not convinced that the proffered testimonies would have enough impact to probably produce 

an acquittal. 

We agree with the district court’s assessment of the newly discovered evidence. While 

the testimonies would support Jimenez’s self-defense claim, they did not present a novel 

argument for the jury to consider. We are not persuaded that merely providing the jury with 

more evidence in support of the same contentions that were already presented at trial would

probably produce an acquittal. Jimenez has failed to carry his burden of proving that the 

evidence would go beyond the bare possibility of acquittal. See State v. Ames, 112 Idaho 144, 

148, 730 P.2d 1064, 1068 (Ct. App. 1986) (holding that “a bare possibility of acquittal” is not 

enough to sustain a defendant’s burden of proving that newly discovered evidence will probably
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produce an acquittal) (emphasis added). Therefore, the district court did not abuse its discretion 

by denying Jimenez’s motion for a new trial.

D. Abuse of Discretion in Sentencing 

Finally, Jimenez argues that the district court abused its discretion in sentencing. 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). To prevail on a claim that a sentence is an abuse of discretion, the 

defendant must show that in light of sentencing criteria, the sentence was excessive under any 

reasonable view of the facts. State v. McGiboney, 152 Idaho 769, 773, 274 P.3d 1284, 1288 (Ct. 

App. 2012). Where reasonable minds might differ, we respect the discretion of the trial court 

and will not supplant the trial court’s views with our own. Id.

Jimenez argues that the court abused its sentencing discretion by imposing an excessive 

sentence because it did not properly consider that Jimenez acted under provocation from 

Alvarado, as required by Idaho Code § 19-2521(2). He suggests that the court should have 

considered the following factors: 

(c) The defendant acted under a strong provocation; 

(d) There were substantial grounds tending to excuse or justify the 

defendant’s criminal conduct, though failing to establish a defense;

(e) The victim of the defendant’s criminal conduct induced or facilitated 

the commission of the crime.
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I.C. § 19-2521(2). However, as a matter of policy in Idaho, the primary consideration in 

sentencing is the good order and protection of society, and all other factors are subservient to that 

end. State v. Hunnel, 125 Idaho 623, 627, 873 P.2d 877, 881 (1994); State v. Pederson, 124 

Idaho 179, 180, 857 P.2d 658, 659 (Ct. App. 1993). 

During sentencing, the district court did consider that Jimenez acted under provocation. 

The court acknowledged the obviousness of existing tensions between Jimenez and Alvarado, 

stating it “makes no sense to me why brothers would be packing guns, potentially shooting at 

each other, unless there was something really, really serious happening there.” It also 

acknowledged Jimenez’s self-defense arguments, and the jury’s rejection of that defense. 

However, the court also considered Jimenez’s use of a weapon, his “character that is of an 

aggressive nature,” and his “lack of remorse for [his] brother,” concluding that Jimenez’s 

punishment was warranted both from a deterrent standpoint and “for the good order and 

protection of society.” Applying the appropriate standards and having reviewed the record in 

this case, we cannot say that the district court abused its discretion.

IV.

CONCLUSION

Jimenez has failed to show fundamental error regarding the alleged erroneous jury 

instructions and claims of prosecutorial misconduct. Further, the district court did not abuse its 

discretion in denying Jimenez’s motion for a new trial because the newly discovered evidence 

would not probably produce an acquittal. Finally, the district court did not abuse its sentencing 

discretion. Jimenez’s judgment of conviction and sentence are affirmed.

Chief Judge MELANSON and Judge GRATTON CONCUR.