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[W] State v. Avila3/4/2002
previously approved by this Court in State v. Greensweig, 102 Idaho 794, 798, 641 P.2d 340, 344 (Ct. App. 1982), and the Idaho Supreme Court has approved it as a pattern jury instruction. See I.C.J.I. 931. Accordingly, the district court's use of Instruction 12A was not erroneous.
2. Instructions on Lesser Included Offenses
The jury was instructed on the charged offense of sexual battery of a minor involving lewd conduct and the lesser included offenses of sexual battery of a minor not involving lewd conduct and simple battery. Avila was found guilty of one of the lesser included offenses, sexual battery of a minor not involving lewd conduct. Nevertheless, Avila asserts that the district court failed to properly instruct the jury that it could find Avila guilty of a lesser crime if it did not find him guilty of a greater crime. In support of his contention, Avila notes that Instruction 11 "does not tell the juror that they should proceed to another instruction to consider the Defendant's guilt or innocence only after considering guilt or innocence on the initial charge."
We exercise free review in determining whether the district court properly instructed the jury, and ask "whether the instructions as a whole, and not individually, fairly and accurately reflect the applicable law." State v. Page, 135 Idaho 214, 221, 16 P.3d 890, 897 (2000). "To be considered reversible error an instruction must have misled the jury or prejudiced the complaining party." Id. Under Idaho law, a jury may not consider a lesser included offense unless it has first considered each of the greater offenses and has concluded that the defendant is not guilty of each of the greater offenses. I.C. ยง 19-2132(c).
While Avila is correct that the text of Instruction 11 does not specifically tell the jury which charge to proceed to if the jury did not find Avila guilty of the charged crime, two other instructions did inform the jury how to consider lesser included offenses. Instruction 10 states:
If your unanimous verdict is that the defendant is not guilty of SEXUAL BATTERY OF A CHILD INVOLVING LEWD CONDUCT, you must acquit the defendant of that charge. In that event, you must next consider the included offense of SEXUAL BATTERY NOT INVOLVING LEWD CONDUCT.
Instruction 13 states:
If your unanimous verdict is that the defendant is not guilty of Sexual Battery of a Child not involving lewd conduct, you must acquit the defendant of that charge. In that event, you must next consider the included offense of Battery. Instructions 10 and 13 correctly instructed the jurors on how and under what circumstances to consider lesser offenses for which they could find Avila guilty.
III. CONCLUSION
Avila has shown no error either in the admission of evidence or in the jury instructions that were utilized at his trial. Therefore, the judgment of conviction is affirmed.
Chief Judge PERRY and Judge GUTIERREZ CONCUR.
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