861 P.2d 1225 (Idaho App. 1993), 19904, State v. Colwell

Docket Nº:19904, 19586.
Citation:861 P.2d 1225, 124 Idaho 560
Opinion Judge:WALTERS,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Dennis Gerald COLWELL, Defendant-Appellant.
Attorney:Thomas A. Mitchell and John T. Mitchell, argued, Coeur d'Alene, for defendant-appellant. Larry EchoHawk, Atty. Gen. and Douglas A. Werth, Deputy Atty. Gen., argued, Boise, for plaintiff-respondent.
Case Date:July 14, 1993
Court:Court of Appeals of Idaho
 
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861 P.2d 1225 (Idaho App. 1993)

124 Idaho 560

STATE of Idaho, Plaintiff-Respondent,

v.

Dennis Gerald COLWELL, Defendant-Appellant.

Nos. 19904, 19586.

Court of Appeals of Idaho.

July 14, 1993

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[124 Idaho 562] Thomas A. Mitchell and John T. Mitchell, argued, Coeur d'Alene, for defendant-appellant.

Larry EchoHawk, Atty. Gen. and Douglas A. Werth, Deputy Atty. Gen., argued, Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

Dennis Colwell was tried before a jury on one count of lewd conduct committed by a specific act of sexual intercourse with a thirteen-year old girl. The jury found him not guilty of lewd conduct but guilty of the "lesser included offense" of sexual abuse of a minor. Colwell moved for a new trial on the ground that the jury was permitted to find him guilty based on evidence of other crimes with which he had not been charged. The district court entered an order denying the motion. For the reasons

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[124 Idaho 563] stated below, we reverse the court's order, vacate the judgment of conviction, and remand the case to the district court. 1

I.

Dennis Colwell was charged by Information with the crime of lewd conduct with a minor, a violation of I.C. § 18-1508. The Information identified the victim, "A.C.," as Colwell's thirteen-year old daughter and alleged that Colwell had committed the offense "by placing his erect penis in the vagina of the said minor child," accomplished sometime between June 7 and June 30, 1990. Colwell pled not guilty and the case was tried to a jury. Through her video-taped interview with a state social worker, and again in her live testimony, the jury heard A.C. state that Colwell had entered her bedroom while she was laying on her bed, that he pulled down her shorts, held her arms down with his hand, and then put his penis in her vagina. She said he moved his penis back and forth and that when he finally removed it, she saw a white substance. She then ran from the room and went outside. These statements, made without further detail, constituted the only evidence of the events and circumstances involved in the commission of the offense charged in the Information.

Although the state had charged Colwell with a single, specific act of lewd conduct, the state also presented live and video-taped statements from A.C. describing other, uncharged acts occurring at various times and places during the two-year period since Colwell and A.C.'s mother separated. This evidence consisted of statements by A.C. that Colwell had sexual intercourse with her on other occasions, some possibly while she visited him in Seattle, Washington; that once, while he was wearing a bathrobe, Colwell had taken her hand and tried to place it on his penis; that he often rubbed cocoa butter on her hips, buttocks and breasts to help eliminate her stretch marks; that he regularly trimmed her pubic hairs; that he made her douche herself, sometimes assisting her; and that he had spied on her while she was undressed in the bathroom. When Colwell took the stand, he denied all of A.C.'s accusations, except that he admitted he had applied cocoa butter "on her fanny side there and the back of her legs" to help with the stretch marks.

At the conclusion of the evidence, the court instructed the jury on the elements of the crime of lewd conduct with a minor--the offense charged in the Information. At the request of the prosecutor, but over Colwell's objection, the court additionally instructed the jury that if, after considering the crime of lewd conduct, it unanimously agreed Colwell was not guilty of that offense, it nevertheless could find him guilty of the lesser included offense of sexual abuse of a child. The court correctly instructed the jury on the essential elements of sexual abuse of a child. However, the jury was not instructed that it was permitted to find Colwell guilty of that offense only if it found he committed sexual abuse during the commission of the charged offense. Following its deliberations the jury returned a verdict finding Colwell not guilty of lewd conduct, but guilty of sexual abuse of a child. The jury then was polled and discharged on August 15, 1991.

On August 19, 1991, Colwell timely filed a motion for a judgment of acquittal, or

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[124 Idaho 564] alternatively for a new trial, asserting that, based upon the objected-to instruction given by the court, the jury had found him guilty of an offense with which he had never been charged. The judge denied the motion. In its memorandum decision and order, the court explained that it had properly instructed the jury on the offense of sexual abuse of a minor, as that crime constitutes an included offense of lewd conduct:

Here, the Jury could have concluded that the evidence that the Defendant rubbed the child with lotions, trimmed her [pubic] hairs, and assisted in douching were not lewd or lascivious acts, but were done with the intent to gratify the lust or sexual desires of the Defendant.... In other words, the Jury could have found that the evidence did not convince them, beyond a...

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