602 P.2d 71 (Idaho 1979), 12692, State v. Cotton

Docket Nº:12692.
Citation:602 P.2d 71, 100 Idaho 573
Opinion Judge:McFADDEN, Justice. BAKES,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Freddy Allen COTTON, Defendant-Appellant.
Attorney:Ronald J. Jarman, Pocatello, for defendant-appellant. David H. Leroy, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for plaintiff-respondent.
Judge Panel:DONALDSON, C. J., and SHEPARD and BISTLINE, JJ., concur.
Case Date:November 02, 1979
Court:Supreme Court of Idaho

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602 P.2d 71 (Idaho 1979)

100 Idaho 573

STATE of Idaho, Plaintiff-Respondent,


Freddy Allen COTTON, Defendant-Appellant.

No. 12692.

Supreme Court of Idaho.

November 2, 1979

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[100 Idaho 575] 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 [100 Idaho 576]

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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...

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