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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 48134

STATE OF IDAHO,

Plaintiff-Respondent,

v.

NICOLE S. ALVAREZ,

Defendant-Appellant.

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Filed: December 8, 2021

Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Melissa Moody, District Judge. 

Judgment of conviction for felony leaving the scene of an injury accident, 

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. 

________________________________________________

BRAILSFORD, Judge

A jury convicted Nicole S. Alvarez of felony leaving the scene of an injury accident and 

of misdemeanor operating a motor vehicle while under the influence of drugs or an intoxicating 

substance. On appeal, Alvarez challenges the sufficiency of the evidence to prove she left the 

scene of an injury accident and contends the district court erred by giving a nonpattern jury 

instruction defining “injury.” We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2019, a police officer responded to a crash at an intersection in Meridian, 

Idaho. At the scene, the officer found only one vehicle, a black SUV. The driver of the black 

SUV had been driving her two children, A.L. and K.L., and another child, A.H., to soccer 
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practice. The driver of the black SUV reported that a silver SUV rear-ended her while she was

waiting at a stoplight and that the silver SUV initially pulled to the side of the road but then 

drove away.

Shortly thereafter, another officer located the silver SUV in a subdivision near the scene

and found Alvarez walking nearby and attempting to hide in some shrubbery. Alvarez initially 

denied she was the driver of the silver SUV, but eventually she admitted to driving it, crashing 

into the black SUV, and driving away from the scene. She also admitted “she thought there 

could have been injuries at the crash.” Based on Alvarez’s behavior, the officer suspected she

was under the influence of drugs. Alvarez admitted to using marijuana and methamphetamine 

the prior night, and she later consented to a blood draw, which revealed methamphetamine and 

amphetamine.

The State charged Alvarez with felony leaving the scene of an injury accident, Idaho 

Code § 18-8007, and with misdemeanor operating a motor vehicle while under the influence of 

drugs or an intoxicating substance, I.C. § 18-8004. The State also alleged Alvarez was a 

persistent violator, I.C. § 19-2514. Alvarez pled not guilty and proceeded to trial. 

At trial, the officer who responded to the scene testified that the driver of the black SUV 

told the officer that the driver “had neck and head pain and the children were also complaining of 

the same”; the driver “was also rubbing her neck quite often”; and the officer dispatched the 

paramedics to the scene. The driver of the black SUV testified that: “As I was waiting for the 

police officer to come, I started to notice that my neck and my shoulders and just up there, the 

back of my head, were pretty stiff and hurt pretty bad.” Further, she testified that on a scale of 

one to ten “where one is not hurting,” her pain level was “probably a five or a six.” 

The driver’s daughter, A.L., testified that after the crash, A.H.’s mom drove to the scene

and that the children sat in her car and watched a movie (apparently while the investigation 

ensued). A.L. testified further that, “during the movie, my neck started hurting really bad and 

my shoulders, and they were really stiff” and that her pain was “a four or a five” on a scale of 

one to ten. A.H. also testified that after the crash her “neck was hurting” and her pain was 

“[p]robably a six or seven” on a scale of one to ten. None of the occupants of the black SUV, 

however, were transported to the hospital, and the evidence does not reveal that any of them 

otherwise sought medical treatment after the crash.
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In preparation for trial, the State proposed a jury instruction defining the term “injury” in 

I.C. § 18-8007:

No specific degree of injury is required to find the defendant guilty of leaving the 

scene of an injury accident. An injury is defined as any physical harm or damage 

to a person’s body. 

Before the trial began, Alvarez objected to this proposed instruction:

THE COURT: So Instruction No. 16 says no specific degree of injury is 

required. Any objection to that one?

[ALVAREZ]:[1] Your Honor, I do object. I just--I do agree that it’s an accurate 

statement of the law from [State v. Mead, 145 Idaho 378, 179 

P.3d 341 (Ct. App. 2008)], but I’m hesitant to endorse departing 

from the ICJI.

THE COURT: Do you think it has the potential to mislead or confuse the jury? 

And if so, how?

[ALVAREZ]: I don’t think it would necessarily mislead. And I think it could 

certainly come up with terms of being a possible appropriate 

answer to a question. I think if it’s going to be included, then my 

request would just be that it be in the definition of injury as 

defined as any physical harm or damage to a person’s body.

THE COURT: All right. So I’m noting [Alvarez’s] objection to Instruction 

No. 16 for the record. If I understand the objection, it is that it is 

not an ICJI instruction, is that correct?

[ALVAREZ]: Yes, Your Honor.

After the close of evidence and before the district court instructed the jury, Alvarez’s 

counsel reiterated his objection to the proposed instruction:

[ALVAREZ]: Your Honor, I’ll just make a record of my prior objection to 

Instruction No. 15.[2] 

THE COURT: Let’s do that. Your objection to No. 15 is that you believe that it 

should not be given because it’s not an ICJI instruction, but you 

do believe that it accurately states the law. And when I asked 

you yesterday, you did not identify a way in which it has 

potential to confuse or to mislead the jury. Is that an accurate 

statement?

 

1 The transcript indicates the prosecutor made this objection. On appeal, however, the 

State contends “the objection is misattributed to the prosecutor.” We agree that based on the 

context of the comments, Alvarez’s counsel--not the prosecutor--made this objection to the 

State’s proposed instruction on injury. 

2 The numbering of the jury instruction at issue apparently changed at some point. The 

parties do not dispute, however, that this objection related to the same instruction to which the 

district court earlier referred to as “Instruction No. 16.” 
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[ALVAREZ]: That’s accurate, Your Honor. And I think if it’s to be included, 

my preference would be to just have the definition. But with 

that, I’ll submit.

THE COURT: So in other words, you would request that if the Court were 

going to give the instruction, the Court would only instruct, 

quote, “An injury is defined as any physical harm or damage to a 

person’s body,” end quote?

[ALVAREZ]: Yes, Your Honor.

Subsequently, the district court instructed the jury per the State’s proposed jury 

instruction on “injury,” which included the statement that “no specific degree of injury is 

required to find” Alvarez guilty of leaving the scene of an injury accident. The jury found 

Alvarez guilty both of leaving the scene of an injury accident and of operating a motor vehicle 

while under the influence of drugs or an intoxicating substance, and she admitted to being a 

persistent violator. Alvarez timely appeals, challenging only the conviction for leaving the scene 

of an injury accident. 

II.

ANALYSIS

A. Sufficiency of Evidence

On appeal, Alvarez challenges the sufficiency of the evidence to support the jury’s 

finding that she is guilty of leaving the scene of an injury accident. Appellate review of the 

sufficiency of the evidence is limited in scope. A finding of guilt will not be overturned on 

appeal where there is substantial evidence upon which a reasonable trier of fact could have found 

that the prosecution sustained its burden of proving the essential elements of a crime beyond a 

reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 

1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App. 1991). We will not 

substitute our view for that of the trier of fact as to the credibility of the witnesses, the weight to 

be given to the testimony, and the reasonable inferences to be drawn from the evidence. 

Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683, 684, 701 P.2d 303, 

304 (Ct. App. 1985). Moreover, we will consider the evidence in the light most favorable to the 

prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson, 121 Idaho at 104, 822 

P.2d at 1001.

Further, substantial evidence may exist even when the evidence presented is solely 

circumstantial or when there is conflicting evidence. State v. Severson, 147 Idaho 694, 712, 215 

P.3d 414, 432 (2009); State v. Stevens, 93 Idaho 48, 50-51, 454 P.2d 945, 947-48 (1969). In fact, 
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even when circumstantial evidence could be interpreted consistently with a finding of innocence, 

it will be sufficient to uphold a guilty verdict when it also gives rise to reasonable inferences of 

guilt. Severson, 147 Idaho at 712, 215 P.3d at 432; State v. Slawson, 124 Idaho 753, 757, 864 

P.2d 199, 203 (Ct. App. 1993).

In order to prove Alvarez left the scene of an injury accident, the State was required to 

prove beyond a reasonable doubt that the accident resulted in an injury; Alvarez “knew or had 

reason to know the accident resulted in injury”; and Alvarez willfully failed to stop, remain at the 

scene, provide information, and render aid. See I.C. § 18-8007(1)(a)-(e). Alvarez asserts that the 

State’s evidence was not sufficient to prove any injury. Specifically, Alvarez argues that, “while 

a feeling of ‘pain’ could be a symptom indicating some physical damage or physical harm, this 

symptom alone does not meet the definition of ‘injury’” in Mead.

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In Mead, this Court addressed the meaning of the word “injury” in I.C. § 18-8007. In 

that case, Mead struck a bicycle with his car, causing the rider “a scrape on her big toe.” Mead, 

145 Idaho at 379, 179 P.3d at 342. Although Mead initially stopped, he sped away when another 

vehicle stopped to investigate the collision. Id. at 380, 179 P.3d at 343. A jury found Mead 

guilty of leaving the scene of an injury accident. Id. Mead appealed, challenging the sufficiency 

of the evidence and arguing “a scraped toe” was “below the level of injury contemplated by the 

statute.” Id. Addressing this argument, this Court stated:

The word injury is not defined in the criminal code; however, its plain meaning is 

well understood. An injury is “any harm or damage.” A physical or bodily injury 

is “physical damage to a person’s body.” If the legislature intended any meaning 

other than the plain and obvious meaning of the word injury, [it] could easily have 

chosen to apply this section only to serious physical injury.

Id. at 381, 179 P.3d at 344. Further, the Court concluded that “a scraped toe, was relatively 

minor, but it was nonetheless harm or damage to [the victim’s] person” and that “the degree of 

injury does not eliminate the fact that [the victim] suffered an injury.” Id. at 381, 382, 179 P.3d 

at 344, 345.

 

3 Alvarez takes issue with the State referring to the pain of the occupants of the black SUV 

as “whiplash-type injuries”; contends no medical evidence supports the proposition the 

occupants suffered whiplash; and argues this Court should “disregard” the State’s reference to 

“the source of the pain” as whiplash. We do not read the State’s reference to whiplash, however, 

as asserting the occupants were medically diagnosed with whiplash, a fact the State did not 

prove. Rather, we construe the State’s reference to “whiplash” in its appellate brief as a 

shorthand manner of describing the neck, head, and shoulder pain that the driver of the black 

SUV reported to the officer and about which the occupants testified.
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We disagree with Alvarez’s assertion that “pain” cannot constitute proof of an injury

under I.C. § 18-8007. As Alvarez concedes, “a feeling of ‘pain’ could be a symptom indicating 

some physical damage or physical harm.” The officer, who spoke to the driver of the black 

SUV, testified that the driver reported she “had neck and head pain and the children were also 

complaining of the same.” Additionally, with the exception of K.L., the youngest child who did 

not testify, all of the occupants of the black SUV testified they felt pain after the crash, including 

describing the level of their pain on a pain scale. Further, both the driver and A.L. testified this 

pain lasted for more than a day. That the occupants reported and testified about feeling pain 

shortly after the crash is circumstantial evidence of their injuries and is sufficient to give rise to a

reasonable inference that the crash caused those injuries. See, e.g., Severson, 147 Idaho at 712, 

215 P.3d at 432 (ruling solely circumstantial evidence may constitute substantial evidence).

Alvarez also asserts the State’s evidence was not sufficient to prove Alvarez had 

knowledge or reason to know of any injuries. In support, she repeatedly refers to the crash as 

just a “fender bender”; notes the absence of any blood or “a shattered window” at the scene; and 

argues that requiring her “to predict how the driver and/or occupants of the car would be feeling 

20 to 30 minutes after the accident sabotages the rationale behind the knowledge element.” 

Alvarez acknowledges, however, that the State is not required to prove a driver’s knowledge of 

an injury by direct testimony; rather, the State may prove knowledge by circumstantial evidence. 

Cf. State v. Parish, 79 Idaho 75, 80, 310 P.2d 1082, 1084 (1957) (addressing prior statute and 

ruling knowledge of injury to another may be proven by surrounding facts and circumstances 

indicating knowledge). 

The circumstantial evidence the State presented in this case is sufficient to give rise to a 

reasonable inference that Alvarez had reason to know the crash caused an injury. Contrary to 

Alvarez’s assertion that the crash was simply a “fender bender,” the evidence--including 

photographs of the SUVs--shows the damage to the vehicles was significant. For example, the 

impact of Alvarez’s car pushed the black SUV about a car’s length, rendered it “inoperable,” and 

caused “glass [to be] everywhere” on the road. Meanwhile, Alvarez’s car “had pretty severe 

front-end damage” including that “the radiator and everything [was] pushed back into the . . . 

engine compartment,” the vehicle’s hood was significantly bowed, and its front bumper was

hanging off. Also, the officer who located Alvarez testified that the officer was surprised that 

Alvarez was able to drive her vehicle, that she admitted the damage to her vehicle was “pretty 
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severe,” and that “she thought there could have been injuries at the crash.” Based on this 

circumstantial evidence, the jury could have reasonably concluded Alvarez should have known 

the crash resulted in an injury. 

B. Jury Instruction

Alvarez argues the district court erred by instructing the jury that “no specific degree of 

injury is required to find the defendant guilty.” A trial court presiding over a criminal case must 

instruct the jury on all matters of law necessary for the jury’s information. I.C. § 19-2132; 

Severson, 147 Idaho at 710, 215 P.3d at 430. Thus, a trial court must deliver instructions on the 

rules of law that are “material to the determination of the defendant’s guilt or innocence.” State 

v. Mack, 132 Idaho 480, 483, 974 P.2d 1109, 1112 (Ct. App. 1999). A requested instruction 

must be given if: (1) it properly states the governing law; (2) a reasonable view of at least some 

evidence would support the requesting party’s legal theory; (3) the subject of the requested 

instruction is not addressed adequately by other jury instructions; and (4) the requested 

instruction does not constitute an impermissible comment as to the evidence. State v. Edney, 145 

Idaho 694, 697, 183 P.3d 782, 785 (Ct. App. 2008). To be reversible error, the instructions as 

given must mislead the jury or prejudice the defendant. Id. Whether the trial court properly 

instructed the jury is a question of law over which we exercise free review. Severson, 147 Idaho 

at 710, 215 P.3d at 430. 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). 

Alvarez argues on appeal that the district court’s instruction that “no specific degree of 

injury is required” to find her guilty of leaving the scene of an injury accident “was not an 

accurate statement of the law”; “it misled the jury”; and “it lowered the prosecutor’s burden of 

proof.” The State responds that Alvarez failed to preserve these arguments for appeal and that 

she has failed to assert the instruction constituted fundamental error. We agree with the State. 

This Court will not consider issues raised for the first time on appeal. State v. GarciaRodriguez, 162 Idaho 271, 275, 396 P.3d 700, 704 (2017). Further, this Court will not hold that 

a trial court erred on a party’s position on an issue that the court lacked the opportunity to 

address. State v. Gonzalez, 165 Idaho 95, 99, 439 P.3d 1267, 1271 (2019). Contrary to 

Alvarez’s appellate arguments, she twice acknowledged to the district court that the instruction 

was an accurate statement of the law and that she did not contend it was either misleading or 
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confusing. Rather, Alvarez’s sole objection to the instruction at trial was that it was not an ICJI 

instruction. Alvarez has abandoned this argument on appeal. Because Alvarez raises new 

arguments on appeal, which the district court did not have the opportunity to address, she failed 

to preserve these issues for appeal. See State v. Bodenbach, 165 Idaho 577, 584, 448 P.3d 1005, 

1012 (2019) (ruling arguments challenging jury instruction not raised at the trial level are not 

preserved for appeal); State v. Richardson, 168 Idaho 25, 32, 478 P.3d 754, 761 (Ct. App. 2020) 

(ruling challenge to jury instruction not preserved for appeal because defendant challenged 

instruction at trial court level on different basis). Further, Alvarez has also failed to raise a 

fundamental error argument, which is the only means by which she can challenge the instruction 

on appeal on a basis different than she raised at trial. See Bodenbach, 165 Idaho at 584, 448 P.3d 

at 1012 (noting fundamental error test is only means for appellate review of unpreserved 

challenge to jury instruction). Accordingly, we decline to address the merits of Alvarez’s 

arguments challenging the jury instructions.

IV.

CONCLUSION

Substantial evidence supports Alvarez’s conviction for felony leaving the scene of an 

injury accident. Alvarez failed to preserve her appellate challenge to the jury instruction 

defining “injury” but, regardless, that challenge fails on the merits. Accordingly, we affirm the 

judgment of conviction for felony leaving the scene of an injury accident.

Chief Judge HUSKEY and Judge GRATTON CONCUR.