1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38203

STATE OF IDAHO , Plaintiff-Respondent ,

v.

JOBY LEE HANNER , Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) 2012 Unpublished Opinion No. 426

Filed: March 30, 2012
Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Seventh Judicial District, State of Idaho, Jefferson County. Hon. Gregory W. Moeller , District Judge.
Judgment of conviction and unified sentence of five years, with a minimum period of confinement of four years, for leaving the scene of an injury accident, affirmed

. Thompson Smith Wo olf & Anderson, PLLC; Stevan H. Thompson, Idaho Falls, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.

________________________________________________ GUTIERREZ, Judge Joby Lee Hanner appeals from his judgment of conviction for leaving the scene of an injury accident. For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE Evidence at trial showed that at about 9:00 p.m. on April 7, 2010, Brenda Fullerton parked her white Dodge tru ck on the street in front of the post o ffice in Ririe and went into the post o ffic e to pick up her mail. Fullerton checked her post o ffice box, a nd as she walked back to her truck, she heard the “ squealing of tires. ” Fullerton walked to the door of her truck, and when she looked up, she saw Hanner’s truck coming at her. Instead of opening her door, she turned to run. However, after she took a couple of steps, the back

- end of Hanner’s truck hit her and2 smashed her into her own truck. Hanner continued to drive off , with the tires of his truck still

“ burning, ” as Fullerton lay on the ground.
Fullerton suffered two broken ribs, four broken bon es in her lower back, and massive soft tissue bruising. She was initially released from the hospital after three days, but two weeks later,
she had to be re

- hospitalized due to a pulmonary embolism. There were two eye witnesses to the incident. Justin M angis was at the Maverick store
across the street from the p ost o ffice that same evening and saw Hanner walk out of the
Maverick store and get into his truck . Mangis then witnessed that Hanner “ started squealing his tires right at the gas pump and headed out onto the road and when he was headed out lost kind of
control and hit the lady, Brenda Fullerton

. ” Justin testified that when Hanner’s truck spun out of control, the back

- end of the truck hi t Fullerton as she turned to run away from her own truck.
Br andy Hayes was working as a cashier at the Maverick store at the time of the incident

. She observed Hanner get into his truck and as he drove away “ the tires just spun, like laid rubber on the pavement, and he spun out around the gas pump . . . and he fis htailed out of the parking
lot and then out on the road . . . .” Brandy testified that when the rear

- end of Hanner’s truck swung back around toward the post o ffice, she saw a white Dodge truck, parked in front of the post o ffice, rock back and forth like it ha d been hit. Brandy wrote down the license plate number
of Hanner’s truck as it came around the corner. It was determined the truck was registered to Hanner, whereupon an arrest warrant was issued for his arrest. Hanner was charged with leaving the scene of an injury accident, Idaho Code § 18

- 8007. After a jury trial, Hanner was convicted a s charged. Hanner was sentenced to a unified term of five years
, with four years determinate. Hanner timely appealed.
II.
ANALYSIS
A. Sufficiency of the Evidence Hanner argues on appeal that the jury’s verdict finding him guilty of leaving the scene of an injury accident was not supported by adequate evidence. Hanner specifically claims the evidence failed to prove he knew
, or had reason to know
, that his vehicle hit and injured the
victim. An appellate court will not set aside a judgment of conviction entered upon a jury verdict if there is substantial evidence upon which a rational trier of fact could have found the essential3 elements of the crime beyond a reasonable doubt. State v. Sheahan , 139 Idaho 267, 285, 77 P.3d 956, 974 (2003); State v. Reyes , 121 Idaho 570, 572, 826 P.2d 919 , 921 (Ct. App. 1992). The appellate court will not substitute its view for that of the jury as to the credibility of the witness, the weight to be given to the testimony, and the reasonable inferences to be drawn from the
evidence. State v. Knutson , 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App. 1991); State v.
Decker , 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct. App. 1985)

. Idaho Code § 18

- 8007 provides in relevant part: The driver of any vehicle that has been involved in an accident . . . who knows or has reason to know that said accident has resulted in injury to or death of any person shall: (a) immediately stop the veh ic le at the scene of the accident

. . . [and] (b) Remain at the scene of the accident until the driver has fulfilled all the requirements under this section.
Pursuant to statute, the relevant inquiry is limited to whether there is substantial evidence in the record supporting the jury’s verdict that Hanner knew
, or had reason to know
, the accident resulted in injury or death of a person . I.C. § 18

- 8007.
Fullerton ’s account of the accident was as follows: I went in to get my mail and I got my mail and I c ame out and I heard this squealing of tires, and to me, I thought to myself there must be a 16

- year

- old kid that just got his dad’s truck for the night and doesn’t have to pay for these tires because he was just burning them as hard as he could and it scar ed me. I was like, wow, I’m getting out of here before that idiot gets on the road. And as fast as he was going, I thought there was no way he could come my direction and he would have been going the other way . . . so I was just hurrying to get into my truck. And I walked around the front of my truck and I got to my door and something said don’t open that door, and I looked up and he’s coming right at me and at first I was [sic] slow motion and it happened so fast and his headlights were right in my eyes , and I mean I was like, wow, and I didn’t open my door, I turned to run and I took two steps and the back end of his truck struck me and just smashed me up against my truck, slid me across the front and flipped me up in the air and down on the ground and he’s still burning his tires, just left and left me there laying on the ground.
More specifically, Fullerton testified that the headlights from Hanner’s truck were “ directly in

my eyes,” and explained
, “ I f he didn’t see me, he had his eyes shut. I couldn’t see for [sic] light,
that’s how close he was to me.” Hanner’s trial counsel asked Fullerton to explain why she
believed Hanner “ knew he hit you
, ” and she responded:4 Because anytime I’m driving anything in my lights, even a mouse that runs across the road, you can see it. You can’t tell me that I seen four headlights in my eyes and he didn’t see me. I find that so hard to believe.

Fullerton ’s testimony gave the jury substantial evidence that Hanner k new, or had reason to know, his truck had struck and injured her before he left the accident scene. Although Hanner did not admit he actually knew his truck hit and injured Fullerton , the testimony of the eye witnesses presented at trial provided substant ial evidence whereby a jury could have reasonably
concluded he knew
, or had reason to know
, Fullerton was hit and injured by his truck.
B. Jury Instruction on Lesser Included Offense Hanner claims the district court erred by failing to instruct the jury on the lesser included offense of reckless driving. An offense is deemed a lesser included offense of another greater offense if all the elements required to sustain a conviction of the lesser included offense are included within the elements of the great er offense or if in committing an offense one necessarily
commits a second offense. State v. Cariaga , 95 Idaho 900, 902
, 523 P.2d 32, 34 (1974). There are two theories by which an offense may be deemed a lesser included offense

-- statutory theory and plea ding theory. State v. Flegel , 151 Idaho 525, 261 P.3d 519 (2011); State v. Cochran , 149 Idaho 688, 690, 239 P.3d 793, 795 (Ct. App. 2010). Under the statutory theory, a crime may be a lesser included offense if its elements are necessarily included in th e greater crime, as the greater crime is defined by statute. Cochran
, 149 Idaho at 690, 239 P.3d at 795. See also State v. Curtis , 130 Idaho 522, 524, 944 P.2d 119, 121 (1997) (“For an offense to be an included offense of a charged offense under the stat utory theory, it must be impossible to commit the greater offense without having committed the lesser offense.”) The offense of leaving the scene of an injury accident can be committed without the driver of the vehicle involved in an accident having drive n recklessly. Idaho Code § 18

- 8007 requires that the drive r of any vehicle that has been involved in an accident who knows
, or has
reason to know
, that said accident has resulted in injury to or death of any person to stop at the
scene of the accident and remain until the driver has fulfilled all the requirements listed under the statutory provisions. I.C. § 18

- 8007(1)(a)

- (e). Because there is no element of reckless (or even negligent) driving that must be proven in order to commit the crime of leaving t he scene of an injury accident, reckless driving is not a lesser included offense of that crime under the statutory theory.5 Under the pleading theory, an offense is an included offense if the State has pled the
elements of the lesser included offense as t he means whereby the defendant committed the greater offense. Curtis , 130 I daho at 524, 944 P.2d at 121. The information in Hanner’s case alleged that Hanner “ was the driver of a vehicle involved in an accident at 110 West Ririe Highway, and willfully fa iled to stop, remain, give information, and render aid, knowing or having reason to know that a person was injured as a result of the accident.” The information made no mention of any culpable driving, much less reckless driving

. Hanner has failed to sho w the district court erred in denying his request to instruct the jury that reckless driving is a lesser
included offense to the crime of leaving the scene of an injury accident.
C. Due Process Violation Based on Lost Evidence For the first time on appeal, Hanner argues that his due process right to a fair trial was violated because the State recorded over the tape recording of his interview by Officer Williams. Generally, Idaho’s appellate courts will not consider error not pr eserved for appeal through an objection at trial. State v. Perry , 150 Idah o 209, 224 , 245 P.3d 961, 976 (2010) (citing State v.
Johnson , 126 Idaho 892, 896, 894 P.2d 125, 129 (1995)). Nor will Idaho’s appellate courts

“ review a trial court’s alleged erro r on appeal unless the record discloses an adverse ruling which forms the basis for the assignment of error.” State v. Fisher , 123 Idaho 481, 485, 849 P.2d 942, 946 (1993); see also State v. Olson , 138 Idaho 438, 442, 64 P.3d 967, 971 (Ct. App. 2003) (cit ing
State v. Barnett , 133 Idaho 231, 235, 985 P.2d 111, 115 (1999)). We note that Hanner failed to make any objection on the record or file an appropriate motion upon learning that the tape recording of his interview with Officer Williams no longer existe d because it was recorded over
with other matters. An exception to the principle that an objection to a constitutional violation must be made in the trial court exists if the alleged error is fundamental. Perry , 150 Idaho at 224 , 245 P.3d at
976. The bu rden of demonstrating fundamental error rests squarely with the defendant asserting the error for the first time on appeal. Id . at 228 , 245 P.3d at 980; State v. Severson , 147 Idaho 694, 7 16

- 17, 215 P.3d 414, 4 36

- 37 (2009). To carry that burden, a defend ant claiming error for the first time on appeal must demonstrate that the error he alleges “ (1) violates one or more of [his] unwaived constitutional rights; (2) plainly exists (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) was not harmless.” Perry , 150 Idaho at 228 , 245 P.3d6 at 980. However, Hanner has not presented any argument on appeal that the recording

- over of his tape d interview constitutes fundamental error under the standards articulated in Perry

. A party waives an issue on appeal if either authority or argument is lacking. State v. Zichko , 129 Idaho 259, 263, 923 P.2d 966, 970 (1996).
D. Excessive Sentence
The di strict court imposed a sentence of five years
, with four years determinate. Hanner argues this sentence was an abuse of the district court’s discretion, contending he should have been permitted to enter a specialty court program

. Hanner offers mitigating evidence in that he intended no harm to the victim, he had taken responsibility for his crime by turning himself in to
law enforcement after he learned Fullerton had been injured, and he expressed extreme remorse for her injuries. Sentencing is a matter for the trial court ’ s discretion. Both our standard of review and the factors to be considered in evaluating the reasonableness of the sentence are well established and need not be repeated here. See State v. Hernandez , 121 Idaho 1 14, 117

- 18, 822 P.2d 10 11,
1014

- 15 (Ct. App. 1991); State v. Lopez , 106 Idaho 447, 449

- 51, 680 P.2d 869, 871

- 73 (Ct. App. 1984); State v. Toohill , 103 Idaho 565, 568, 650 P.2d 707, 710 (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). Applying these standards, and having reviewed the record in this case, we cannot say that the district court abused its discretion.
III.
CONCLUSION We conclude the testimony presen ted at trial provided substantial evidence whereby a jury could have reasonably concluded Hanner knew, or had reason to know, that Fullerton was hit and injured by his truck. We also conclude the district court did not err in failing to instruct the jury on the lesser included offense of reckless driving. Because Hanner failed to present any

argume nt on appeal that the recording

- over of his taped interview with Officer Williams constituted fundamental error, the issue was waived

. Further, we conclude the district court did not abuse its discretion in sentencing. Therefore, the judgment of conviction and sentence are
affirmed

. Judge LANSING and Judge MELANSON CONCUR.