State v. Cotton

• Decision Date: 02 November 1979
• Docket Number: No. 12692,12692
• Citation: 100 Idaho 573,602 P.2d 71
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Freddy Allen COTTON, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 71

602 P.2d 71

100 Idaho 573

STATE of Idaho, Plaintiff-Respondent, v. Freddy Allen COTTON, Defendant-Appellant.

No. 12692.

Supreme Court of Idaho.

Nov. 2, 1979.

Ronald J. Jarman, Pocatello, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for plaintiff-respondent.

McFADDEN, Justice.

Freddy Allen Cotton, defendant-appellant (hereafter Cotton) was charged by information of four public offenses; namely, robbery (I.C. § 18-6501), attempted infamous crime against nature (I.C. §§ 18-306 and 6605), infamous crime against nature (I.C. § 18-6605), and second degree kidnapping (I.C. §§ 18-4501 and 4503). The jury rendered a verdict of guilty on all four counts and judgment of conviction was entered. Cotton was sentenced to an indeterminate sentence not to exceed fifteen years on the robbery charge and five years on each of the other charges, to run concurrently with the robbery sentence.

Cotton presents three issues in this appeal: (1) that the trial court erred in not dismissing the case following the presentation of the state's evidence; (2) that the trial court erred in its instructions on reasonable doubt, and in not giving his requested instruction on definition of reasonable doubt; and (3) that the trial court abused its discretion in imposition of sentence. The judgment of conviction and sentence are affirmed for reasons set out below.

On the evening of April 2, 1977, according to the state's evidence, Cotton accosted the victim in a well-lit underpass in the city of Pocatello. Cotton, at knifepoint, forced the victim to give him his wallet. Cotton then forced the victim to remove his trousers and attempted anal intercourse on the victim. Cotton then forced the victim to perform fellatio upon him and then ordered the victim to accompany Cotton, intending to take the victim to Cotton's house where the victim was to perform anal intercourse upon Cotton. At this point a young woman walked by them without incident. Upon reaching a bar on the other side of the underpass, she advised the police by phone what she observed and Cotton was arrested shortly thereafter.

According to Cotton, the only defense witness, the victim had made homosexual advances to him earlier in the evening at a bar, and that the victim accosted him in the underpass with a knife. Cotton claimed he disarmed the victim. The victim then offered Cotton money for various sexual acts. He dropped his wallet which Cotton picked up for him. Cotton and the victim were headed toward another bar when Cotton was arrested.

The first assignment of error, namely, that the court should have entered a judgment of acquittal upon the completion of the state's case, is without merit. The appellant, Cotton, contends that such a judgment should have been entered because of the inherent improbability of the victim's testimony. It is a well established principle that the credibility of witnesses and the weight to be given to testimony is to be determined by the jury and not by the court. State v. Lewis, 96 Idaho 743, 748, 536 P.2d 738, 743 (1975); State v. Gailey, 69 Idaho 146, 149, 204 P.2d 254, 257 (1949). Where there is competent although conflicting evidence to sustain the verdict, this court cannot reweigh that evidence or disturb the verdict. State v. Froelich, 96 Idaho 685, 535 P.2d 658 (1975); State v. Lewis, supra. In the instant case the jury was at liberty to believe the victim's version of the story or to reject it as unreliable. By convicting the appellant of the crimes charged, the jury chose to accept the victim's version versus that of the appellant. The victim furnished competent and sufficient evidence to support such a finding which was corroborated by the testimony of the young woman and the arresting police officers. At the close of the state's case the record contained sufficient evidence to constitute a prima facie case and the court did not err in refusing to dismiss the case.

The appellant claims that the court erroneously gave two instructions on the concept of reasonable doubt, and erred in failing to give his requested instruction which more precisely defined the term "reasonable doubt." This court in State v. Holm, 93 Idaho 904, 907-8, 478 P.2d 284, 288 (1970), held that the instruction given as number 12 in this case fails to precisely define the term "reasonable doubt" and that such a definition is necessary. The court went on to say:

"It is our opinion that when such term (reasonable doubt) is used in an instruction, where the jurors are required to understand its meaning and apply it, the term should be defined more precisely so that there is no question in the jurors' minds with respect to the concept of 'reasonable doubt'. . . . The California jury instruction ¹ . . . is clearer and more concise than the instruction which was given by the district court. Hereafter Whenever the concept of reasonable doubt is at issue i. e., in all criminal cases, the defendant is Entitled to such an instruction." (Emphasis added.) 98 Idaho 908, 478 P.2d at 288.

However, the court in Holm held that the defendant was entitled to a new trial on other grounds. It therefore declined to address Holm's contention that the instruction as given deprived him of constitutional due process, equal protection of laws, and a fair jury trial.

The appellant's requested jury instruction number 2 is the California jury instruction approved by this court in State v. Holm, supra, for use in every criminal case. Thus it was error for the district court to decline to give the requested instruction. The question now before this court is whether this is prejudicial error requiring reversal.

The instructions of which the appellant complains have in various parts been given in a number of previous cases. The language that the appellant identifies as particularly troublesome, "(y)ou are not at liberty to disbelieve as jurors(,) if from the evidence you believe as men", was used in the early case of State v. Moon, 20 Idaho 202, 214-15, 117 P. 757, 760-61 (1911). This court held that the instruction should be sustained. In State v. Nolan, 31 Idaho 71, 82-83, 169 P. 295, 297-98 (1917), the court stated that while this instruction was subject to criticism it was not sufficient of itself to amount to prejudicial and reversible error. The court said it was inclined to view that this part of the instruction was useless because it conveyed no information which men of ordinary intelligence didn't already possess. The court in State v. Bassett, 86 Idaho 277, 287, 385 P.2d 246, 251-52 (1963), followed the position taken by the court in Moon, supra, and Nolan, supra, stating that while the language was subject to criticism it was not sufficient to require a reversal. A review of Idaho cases where a reversal was ordered due to an erroneous instruction on reasonable doubt indicates that generally the instruction contained a misstatement of the law (State v. Hix, 58 Idaho 730, 78 P.2d 1003 (1938); State v. Taylor, 59 Idaho 724, 87 P.2d 454 (1939); State v. Taylor, 76 Idaho 358, 283 P.2d 582 (1955)) or the instruction was so confusing and argumentative as to mislead the jury (State v. Dickens, 68 Idaho 173, 191 P.2d 364 (1948)).

While instruction number 12 should not have been given, it is not so confusing, misleading or erroneous as to require a reversal. The instruction does not contain errors of law. In fact, it includes language that this court has approved that was not contained in the instruction given in State v. Holm, supra. ² Even though long it cannot be said that it would confuse the jury such that they would be unable to perform their duty. Therefore, we hold that the error was not prejudicial.

However as was stated in State v. Holm, supra, we must again reiterate that the instruction as stated in California Jury Instruction 2.90 (see n. 1) is preferred and is the one that all courts in Idaho should use in a criminal case. ³

As to the giving of instruction number 11, ⁴ which the appellant also claims was in error, the instruction need not have been given if the California instruction discussed above had been given. However, this instruction was approved in State v. Gilbert, 8 Idaho 346, 351, 69 P. 62, 63-64 (1902). It was not disapproved in State v. Dickens, supra, 68 Idaho 173, 181, although the court in Dickens stressed that more concise language be used. The court holds that this instruction was not such as would confuse the jury in light of the facts of this particular case and taken in conjunction with instruction number 10 which is the same as the first part of the California jury instruction in question. ⁵

The appellant's third issue is that the trial court imposed an unduly harsh sentence. It is well established that the sentence to be imposed in any particular matter is within the discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion appears. A sentence that is within the limits prescribed by statute ordinarily will not be considered an abuse of discretion. State v. Seifart, 100 Idaho 321, 597 P.2d 44, 45 (1979). Where a sentence is within the statutory limits, an appellant has the burden of showing a clear abuse of discretion on the part of the court imposing the sentence. State v. Chapa,98 Idaho 54, 558 P.2d 83 (1976). This sentence was within the statutory limits. ⁶

The appellant attempts to meet his burden of showing abuse of discretion by contending that the court should have granted his motion to have him examined by a psychiatrist and have ordered a presentence investigation. While rule 37(a) of the Idaho Rules of Criminal Procedure states that a trial judge need not require a presentence investigation report in every case and that it is within the court's discretion to do so, the rule also states that when the trial court does not require a presentence investigation in a felony case, the court must show affirmatively why it was not ordered....