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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 48064

STATE OF IDAHO,

Plaintiff-Respondent,

v.

DONALD JOSEPH MABERRY,

Defendant-Appellant.

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Filed: November 10, 2021

Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

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

Bannock County. Hon. Robert C. Naftz, District Judge. 

Judgment of conviction and concurrent, unified sentences of ten years, with 

minimum periods of confinement of four years, for three counts of sexual 

exploitation of a child, affirmed. 

Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy 

Appellate Public Defender, Boise, for appellant. 

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

Attorney General, Boise, for respondent. 

________________________________________________

LORELLO, Judge 

Donald Joseph Maberry appeals from his judgment of conviction and concurrent, unified 

sentences of ten years, with minimum periods of confinement of four years, for three counts of 

sexual exploitation of a child. We affirm. 

I.

FACTUAL AND PROCEDURAL BACKGROUND

Faced with charges for ten counts of sexual exploitation of a child and with being a 

persistent violator, Maberry entered into a binding I.C.R. 11 plea agreement with the State in which 

he pled guilty to three counts. I.C. § 18-1507(2)(a). According to the plea agreement, the length 

of the determinate portions of Maberry’s sentences depended on the results of a psychosexual 
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evaluation. If the evaluator concluded that Maberry presented a low or moderate risk of 

recidivism, his sentences would be indeterminate terms of ten years, with minimum terms of 

confinement of two years. However, if the results showed a high risk of recidivism, the 

determinate portions of his sentences would increase to four years. In exchange for Maberry’s 

pleas, the State agreed to dismiss seven counts of sexual exploitation of a child, the persistent 

violator enhancement, and charges in two other cases.

The evaluator concluded that Maberry presented a high risk of recidivism. Maberry moved 

for a second psychosexual evaluation, contending that the evaluator was required to administer 

certain tests as part of the evaluation absent a basis for not doing so and the evaluator’s explanation 

for not administering the Multiphasic Sex Inventory, 2nd Edition (MSI-II) was inadequate. The 

district court denied the motion. Pursuant to the plea agreement and the high-risk assessment, the 

district court sentenced Maberry to concurrent, unified sentences of ten years, with minimum 

periods of confinement of four years, for the three counts of sexual exploitation of a child. Maberry 

appeals.

II.

ANALYSIS

Maberry asserts the district court erred by denying his motion for a second psychosexual 

evaluation. Specifically, he contends that the evaluator’s explanation for not administering the 

MSI-II was not legitimate and that, if the MSI-II had been administered, there is a “reasonable 

possibility” that Maberry’s recidivism risk level would have been lower, reducing the determinate 

portions of his sentences.

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 The State responds that the district court lacked discretion to override 

the evaluator’s professional judgment that the MSI-II was not appropriate and that, even if the 

district court had this discretion, it did not err. We hold that Maberry has failed to show that the 

 

1 This is not quite what Maberry argued to the district court. Instead of asserting that 

administering the omitted assessment would have changed the outcome, he acknowledged that “it 

may be that the MSI-II would simply have confirmed [the evaluator’s] designation of high risk. 

But it is also possible it might have ruled out risk, a stated function of the MSI-II.” Because we 

conclude that the district court properly denied Maberry’s motion for a second psychosexual 

evaluation, we do not address whether his position changed on appeal or whether a “reasonable 

possibility” is the correct standard for determining prejudice in this context.
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psychosexual evaluator’s conclusion that a certain assessment was not appropriate entitled 

Maberry to a new psychosexual evaluation. 

By statute, psychosexual evaluations must “be done in accordance with the standards 

established by the” Idaho Sexual Offender Management Board. I.C. § 18-8316. Those standards 

list certain assessments that “must” be given, one of which is the MSI-II.

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 Despite this mandatory 

language, the standards allow an “evaluator [to] determine whether use of a specific assessment is 

appropriate based on the individual case.” But, “if a required assessment is not used, the provider 

must explain why.” 

Here, the evaluator tested Maberry’s reading level. The results indicated that Maberry 

“may be able to complete the [Personality Assessment Inventory] but not the MSI-II.” After 

describing the MSI-II, the evaluator noted that “Maberry’s reading level is completely insufficient 

to complete this test.” The evaluator did not elaborate further on his reasons for not conducting

the MSI-II.

Maberry acknowledges that the evaluator provided an explanation for not administering 

the MSI-II, but contends that the explanation was not “legitimate,” rendering the psychosexual 

evaluation unreliable. In support of his contention that the explanation must be legitimate for the 

psychosexual evaluation to be reliable, Maberry relies on State v. Bell, 115 Idaho 36, 764 P.2d 113 

(Ct. App. 1988). In Bell, we addressed whether a trial court erred in admitting the results of a 

blood-alcohol test at a trial for aggravated driving under the influence. The defendant in Bell

argued that there was no foundation for the test results because the State had not presented evidence 

that the “tubes used in taking a blood sample contained the required chemical additives.” Id. at 

 

2 A portion of the Board’s standards appear in the record as an exhibit attached to Maberry’s 

motion for a second psychosexual evaluation, but the motion does not indicate from where these 

standards were obtained or whether these standards were in effect at the time of Maberry’s 

evaluation. In its appellate briefing, the State cites to a webpage containing an entire section of 

the Board’s standards, a portion of which appears identical to the standards contained in the 

appellate record. See Idaho Sexual Offender Management Board, Standards and Guidelines for 

Adult Sexual Offender Management Practices, https://somb.idaho.gov/wp-content/uploads/2018/

10/Adult-Psychosexual-Evaluations-and-Evaluator-Certification-Standards-2020-1.pdf. Given 

the lack of a dispute between the parties on this point, we will assume that the standards contained 

in the appellate record apply to Maberry’s evaluation.
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37, 764 P.2d at 114. At that time, the relevant statute required blood-alcohol tests to comply with 

standards adopted by the Idaho Department of Health and Welfare, one of which required the 

chemical additives. Id. at 37 & 37 n.2, 764 P.2d at 114 & 114 n.2. We recognized that the 

legislature’s adoption of the test procedure “recognizes the validity and reliability of that particular 

accepted test.” Id. at 39, 764 P.2d at 116. Consequently, we held that showing a blood-alcohol 

test complied with the procedure was an alternative to establishing foundation by way of expert 

witness testimony.

Maberry asserts that, in Bell, “when those procedures were not followed and no legitimate 

explanation was given as to why that failure did not affect the results, the ensuing test results were 

not reliable, and thus, not admissible as evidence.” This was not our analysis or our conclusion in 

Bell. Contrary to Maberry’s assertion, we held that the evidence in Bell “was sufficient to show 

compliance with all Department of Health and Welfare testing standards.” Id. at 40, 764 P.2d at 

117. Because the test procedure was followed, we had no occasion to examine whether there was 

a “legitimate explanation” for failing to follow the procedure--indeed, the words “legitimate” and 

“explanation” appear nowhere in Bell. Also contrary to Maberry’s representation of Bell, we held 

“that the trial court did not err in admitting the test results.” Id. at 42, 764 P.2d at 119. We 

recognize our holding in Bell that following test procedures can make a test reliable for purposes 

of laying foundation for admission of test results at trial, but that principle has no application to a 

psychosexual evaluation submitted for the court’s consideration at sentencing. The core of 

Maberry’s challenge is to the reliability of the evaluator’s risk assessment given the evaluator’s 

decision not to administer the MSI-II. But, the Board’s standards allow evaluators to exercise 

judgment in making that decision. Nothing in Bell supports the conclusion that a trial court has 

authority to determine whether an evaluator’s explanation for not giving an assessment is 

“legitimate” and, if not legitimate, to order a new psychosexual evaluation.

Even if Maberry had presented authority that a trial court can determine whether an 

explanation given by a psychosexual evaluator is legitimate, his argument still fails. Maberry 

asserts the evaluator’s “own comments reveal” that “a person’s low reading comprehension scores 

do not justify not giving the test at all, but rather, should be compensated for by using alternative 
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testing conditions.”

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 The evaluator’s comments, however, are not as categorical as Maberry 

represents them to be. Instead, the evaluator wrote that, if a reading test score “is below the 

recommended reading level,” then “the undersigned recommends that the evaluator take this into 

consideration when administering the self-report tests, perhaps utilizing audio versions of the 

instruments or other methods recommended by the authors of the [various assessments].” 

(Emphases added.) As indicated by the word “perhaps,” alternative methods are an option, not a 

requirement. Here, the evaluator’s conclusion that “Maberry’s reading level is completely 

insufficient to complete” the MSI-II shows that the evaluator followed the recommendation to 

consider Maberry’s reading level. Although the evaluator did not explain why he did not pursue 

an alternative method of giving the MSI-II, there is nothing in the evaluator’s comments that 

require this particular explanation. Consequently, Maberry has failed to show that the evaluator’s 

explanation for not giving the MSI-II was not legitimate or that the district court erred by denying 

his motion for a second psychosexual evaluation. 

IV.

CONCLUSION

Maberry has failed to show the district court erred in denying his motion for a new 

psychosexual evaluation. Accordingly, Maberry’s judgment of conviction and sentences for three 

counts of sexual exploitation of a child are affirmed. 

Judge GRATTON and Judge BRAILSFORD, CONCUR. 

 

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In his reply brief, Maberry asserts that the State “ignores [a] critical statement made by 

th[e] evaluator” and that the “evaluator expressly advised that ‘a person’s low reading 

comprehension scores do not justify not giving the test at all, but rather should be compensated for 

by using alternative testing conditions.’” Maberry provides a citation to the record, but we have 

been unable to locate the purported quote from the evaluator. The only place this language appears 

(with minor changes in italicization) is in Maberry’s opening brief, quoted above, which is 

Maberry’s characterization of the evaluator’s comments.