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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45800

STATE OF IDAHO,

Plaintiff-Respondent,

v.

RANDY MICHAEL EVANS,

aka RANDY MICHAEL EVANS, III,

Defendant-Appellant.

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Filed: April 24, 2019

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

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

Falls County. Hon. Ned C. Williamson, District Judge. 

Judgment of conviction and sentence, order denying motion for mistrial, and 

motion for reduction of sentence, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Elizabeth A. Allred, 

Deputy Appellate Public Defender, Boise, for appellant. 

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

Attorney General, Boise, for respondent. 

________________________________________________

HUSKEY, Judge

Randy Michael Evans appeals from the district court’s judgment of conviction. He 

argues the district court: (1) erred by denying his motion for mistrial; (2) abused its discretion by 

imposing an excessive sentence; and (3) abused its discretion by denying his Idaho Criminal 

Rule 35 motion for a reduction of his sentence. The judgment of conviction and sentence, order 

denying motion for mistrial, and order denying the motion for reduction of sentence under 

I.C.R. 35 are affirmed.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Evans was charged with battery with intent to commit murder with a firearm 

enhancement. The State alleged that Evans shot his ex-wife three times. Evans entered a plea of 
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not guilty. At trial, the district court admonished a witness for the State, Evans’ former friend,

that she must not mention that Evans was previously charged with a felony and had gone to 

prison. However, during her direct examination while discussing a conversation she had with 

Evans prior to the shooting, she mistakenly mentioned that Evans had been in prison: “I would 

tell him that if he did anything like that, he would get caught and end up back in prison.” Evans 

objected and the district court immediately instructed the jury to “disregard any mention about 

prison” and moments later to “disregard any evidence whatsoever about prison.” 

At the end of the witness’s direct examination, Evans moved the district court for a 

mistrial, arguing that mentioning prison implied Evans had previously been convicted of a felony 

and had served time in prison for that felony. The district court took the matter under 

advisement, but later denied the motion for mistrial. The district court explained that the State 

had posed a “totally innocent question” not calculated to elicit the statement about prison and 

that the witness’s mention of prison was also unintentional. The district court found the 

statement was significant, but not so significant to overcome the other compelling evidence of 

Evans’ guilt or the district court’s curative instructions to the jury.

The jury found Evans guilty of battery with intent to commit murder with the firearm 

enhancement. The district court imposed a unified thirty-five-year sentence, with thirty years 

determinate. Evans filed a motion for reduction of sentence under I.C.R. 35, which the district 

court denied. Evans timely appealed. 

II.

STANDARD OF REVIEW

In criminal cases, motions for mistrial are governed by I.C.R. 29.1. A mistrial may be 

declared upon motion of the defendant, when there occurs during the trial an error or legal defect 

in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the 

defendant and deprives the defendant of a fair trial. I.C.R. 29.1(a). Our standard for reviewing a 

district court’s denial of a motion for mistrial is well established:

[T]he question on appeal is not whether the trial judge reasonably exercised his 

discretion in light of circumstances existing when the mistrial motion was made. 

Rather, the question must be whether the event which precipitated the motion for 

mistrial represented reversible error when viewed in the context of the full record. 

Thus, where a motion for mistrial has been denied in a criminal case, the “abuse 

of discretion” standard is a misnomer. The standard, more accurately stated, is 

one of reversible error. Our focus is upon the continuing impact on the trial of the 
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incident that triggered the mistrial motion. The trial judge’s refusal to declare a 

mistrial will be disturbed only if that incident, viewed retrospectively, constituted 

reversible error. 

State v. Urquhart, 105 Idaho 92, 95, 665 P.2d 1102, 1105 (Ct. App. 1983). Error is not 

reversible unless it is shown to be prejudicial. State v. Shepherd, 124 Idaho 54, 57, 855 P.2d 

891, 894 (Ct. App. 1993).

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). 

A motion for reduction of sentence under I.C.R. 35 is essentially a plea for leniency, 

addressed to the sound discretion of the court. State v. Knighton, 143 Idaho 318, 319, 144 P.3d 

23, 24 (2006); State v. Allbee, 115 Idaho 845, 846, 771 P.2d 66, 67 (Ct. App. 1989). In 

presenting an I.C.R. 35 motion, the defendant must show that the sentence is excessive in light of 

new or additional information subsequently provided to the district court in support of the 

motion. State v. Huffman, 144 Idaho 201, 203, 159 P.3d 838, 840 (2007). In conducting our 

review of the grant or denial of an I.C.R. 35 motion, we consider the entire record and apply the 

same criteria used for determining the reasonableness of the original sentence. State v. Forde, 

113 Idaho 21, 22, 740 P.2d 63, 64 (Ct. App. 1987). 
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III.

ANALYSIS

Evans argues the district court: (1) erred by denying his motion for mistrial; (2) abused 

its discretion by imposing an excessive sentence; and (3) abused its discretion by denying his 

I.C.R. 35 motion for a reduction of his sentence.

A. Perry Does Not Govern Appellate Review of Motions for Mistrial 

Evans asks this Court to clarify which standard of review applies to the denial of a 

motion for a mistrial. He asserts that following State v. Perry, 150 Idaho 209, 245 P.3d 961 

(2010), it is unclear whether the denial of a mistrial is governed by the reversible error standard 

articulated in Urquhart or whether the Perry harmless error analysis applies. Under Urquhart, 

the defendant must establish the prejudicial evidence likely had a continuing impact on the trial 

and ultimately deprived the defendant of a fair trial. Under Perry, the defendant need only show 

error and then the burden of proof shifts to the State to show the error was harmless beyond a 

reasonable doubt. Evans asserts that under Perry’s objected-to error standard, the State will be 

unable to prove the witness’s error was harmless. Alternatively, Evans argues that if this Court 

reviews the district court’s denial of his motion for mistrial for reversible error under Urquhart,

and its progeny, such as State v. Field, 144 Idaho 559, 165 P.3d 273 (2007), the witness’s error 

likely had a continuing impact on the trial and, thus, deprived Evans of his right to a fair trial. 

The State argues the standard of review for motions for mistrial is well established under 

Urquhart and that Perry has no relevance to the review of motions for mistrial.

The error that Evans appeals is not an unobjected-to trial error. It is the denial of a 

motion for a mistrial, which is categorically different. Consequently, we apply the reversible 

error standard articulated in Urquhart. Because the Urquhart reversible error standard controls 

appellate review of motions for mistrial, see State v. Passons, 158 Idaho 286, 292-93, 346 P.3d 

303, 309-10 (Ct. App. 2015); State v. Norton, 151 Idaho 176, 192-93, 254 P.3d 77, 93-94 (Ct. 

App. 2011), Evans must establish that the prejudicial evidence likely had a continuing impact on 

the trial and deprived him of his right to a fair trial. Urquhart, 105 Idaho at 95, 665 P.2d at 1105. 

If there is no prejudice to Evans, there is no error in denying the motion for a mistrial; 

establishing prejudice is part of establishing the error. Once prejudice is established, there is no 

burden of proof to shift to the State. If Evans establishes the inadmissible evidence had a 

continuing impact on the trial that rises to the level of a deprivation of his right to a fair trial, 
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there is nothing left (in terms of prejudice) for the State to establish. Evans has not met that

burden in this case. Although the statement violated the district court’s explicit instruction to the 

witness that she not discuss Evans’ felony or prison time, the district court’s curative instructions 

to the jury addressed the error. We presume that the jury followed the district court’s 

instructions absent compelling circumstances dictating the opposite conclusion. See State v. 

Frauenberger, 154 Idaho 294, 302, 297 P.3d 257, 265 (Ct. App. 2013); State v. Kilby, 130 Idaho 

747, 751, 947 P.2d 420, 424 (Ct. App. 1997); State v. Hudson, 129 Idaho 478, 481, 927 P.2d 

451, 454 (Ct. App. 1996). Evans does not argue or demonstrate compelling circumstances such 

that the presumption would be inapplicable. Consequently, Evans has not established that the 

witness’s statement had a continuing impact on the trial or upon the jury’s decision-making 

process. Thus, Evans was not deprived of a fair trial, and the district court did not err in denying 

Evans’ motion for mistrial.

This conclusion is reinforced by the compelling evidence admitted against Evans at trial. 

Evans’ trial was focused on his identity as the shooter and his alibi defense. The State presented 

testimony from several witnesses. The victim testified that Evans shot her three times as she was 

leaving her home. She testified Evans was wearing dark clothes including a black sweatshirt and 

a ski mask which exposed most of Evans’ forehead, eyes, and nose. She recognized Evans’

distinctive features including his brown eyes, large nose, six-foot stature, and the way he walked.

The victim’s husband’s uncle, with whom she lived in the same home, testified he heard 

gunshots outside his house and when he went to the front door, he heard screaming and saw the 

victim running up the steps. He testified he saw someone standing in the driveway dressed all in 

black, whose height matched Evans’. Additionally, he testified that the victim said Evans had 

shot her. 

One of the victim’s neighbors testified that he saw an unfamiliar vehicle in the area; the 

neighbor’s wife testified that after hearing gunshots, she saw a roughly six-foot man run across 

her property, get into a vehicle, and leave quickly. The neighbor’s sister testified she also heard 

the gunshots and saw the man running down the road in dark clothing and get into an older, darkcolored car, which she later identified in a photo line-up. One of Evans’ former friends testified 

that Evans had previously told her he was planning to “do something destructive” and “snipe” 

the victim. Evans’ stepbrother testified that Evans had confessed to him that he had shot the 

victim. Two individuals with whom Evans and his girlfriend lived in the same home testified. 
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One testified that although he saw Evans at home on the night in question, he could have come 

and gone without him noticing. The other testified that Evans left around 7:30 to 8:00 p.m. and 

probably returned between 11:00 and 11:15 p.m. 

Additionally, four law enforcement officers testified to the details of their investigations, 

utilizing numerous photos of the crime scene, physical evidence found at the scene, results of 

forensics tests, and content of interviews. One detective testified that a turquoise hand towel, 

wrapped over a white towel with two pieces of tape, was found at the scene and that a matching 

turquoise towel was found in Evans’ home. The detective also testified about tire tracks found at 

the scene that another detective matched to Evans’ vehicle by taking a plaster cast of the tracks.

Additionally, the detective testified that during an interview, Evans stated he had been driving a 

brown vehicle, the vehicle in which another detective testified he found a ski mask.

To counter this testimony, Evans called his girlfriend who testified that he was with her 

around 6:30 to 6:45 p.m., eating fast food and watching television. She testified they went to get 

more fast food around 10:15 to 10:30 p.m., ate it in the restaurant parking lot, and then drove 

around town playing Pokémon Go until they returned home around 11:10 p.m. Evans testified 

consistently with his girlfriend’s testimony. 

The district court’s curative instructions were sufficient to dispel any possible prejudice 

from the statement; in addition, the compelling evidence presented at trial also demonstrates that 

the statement about Evans being in prison did not have a continuing impact upon the trial. The 

statement had no bearing upon the main question for the jury to decide--whether Evans was the

shooter--and thus Evans’ right to a fair trial was not deprived.

B. The District Court Did Not Abuse Its Discretion by Imposing an Excessive Sentence 

or by Denying Evans’ Idaho Criminal Rule 35 Motion to Reduce His Sentence

Evans argues the district court failed to give proper weight and consideration to his 

family support and employment history and, thus, abused its discretion by imposing an excessive 

sentence. Concerning his I.C.R. 35 motion, Evans contends the district court made the same 

error, but also failed to give proper weight and consideration to Evans’ pro-social behavior while 

in prison, the support of friends and extended family, and Evans’ personal commitment to do 

good and be a better person.

At sentencing, the district court proceeded methodically through the justifications and 

statutory factors undergirding Evans’ sentence. First, the district court reviewed the 

overwhelming evidence of guilt presented at trial. The district court then explained it had 
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reviewed Evans’ presentence investigation report and the impact the shooting had upon the 

victim. Had the victim died, the district court stated that Evans likely would have been convicted 

of first degree murder. The district court then reviewed the goals of sentencing--protection of 

society, deterrence, rehabilitation, and retribution--as they applied to Evans’ case. The district 

court continued to evaluate the sentencing factors in Idaho Code § 19-2521, including mitigating 

factors. After making multiple findings, the district court imposed sentence. 

After Evans filed his I.C.R. 35 motion, the district court held a hearing. The district court 

reviewed all the information Evans submitted in conjunction with his I.C.R. 35 motion and the 

evidence submitted at the hearing. Having reviewed the record, we cannot say that the district 

court abused its discretion in rendering Evans’ sentence or denying his I.C.R. 35 motion.

IV.

CONCLUSION

Evans fails to show reversible error in the district court’s decision to deny his motion for 

mistrial. Additionally, the district court did not abuse its discretion in rendering Evans’ sentence 

or denying his I.C.R. 35 motion. The judgment of conviction and sentence, order denying 

motion for mistrial, and motion for reduction of sentence under I.C.R. 35 are affirmed.

Judge LORELLO and Judge BRAILSFORD CONCUR.