921 P.2d 754 (Idaho App. 1996), 21755, State v. Gittins

Docket Nº:21755.
Citation:921 P.2d 754, 129 Idaho 54
Opinion Judge:PERRY,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Michael J. GITTINS, Defendant-Appellant.
Attorney:John L. Stosich, Bonneville County Public Defender, Idaho Falls, for appellant. Hon. Alan G. Lance, Attorney General; John C. McKinney, Deputy Attorney General (argued), Boise, for respondent.
Judge Panel:WALTERS, C.J., and LANSING, JJ., concur.
Case Date:July 11, 1996
Court:Court of Appeals of Idaho
 
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Page 754

921 P.2d 754 (Idaho App. 1996)

129 Idaho 54

STATE of Idaho, Plaintiff-Respondent,

v.

Michael J. GITTINS, Defendant-Appellant.

No. 21755.

Court of Appeals of Idaho.

July 11, 1996

Page 755

[129 Idaho 55] John L. Stosich, Bonneville County Public Defender, Idaho Falls, for appellant.

Hon. Alan G. Lance, Attorney General; John C. McKinney, Deputy Attorney General (argued), Boise, for respondent.

PERRY, Judge.

Michael J. Gittins appeals from his judgment of conviction for rape. I.C. § 18-6101(3). After reviewing the record and applicable law, we vacate the judgment and remand this case for a new trial.

I.

FACTS AND PROCEDURE

On June 5, 1993, Gittins met G.H. in Idaho Falls and invited her to a nearby bar for a drink. Gittins then offered to buy G.H. dinner. Gittins stopped at a grocery store to cash a check. Gittins returned to the car and informed G.H. that he had been unable to cash his check and would therefore be unable to pay for dinner. After stopping at another store where they purchased beer, Gittins and G.H. went to Gittins' residence--a local motel. Once at the motel G.H. and Gittins sat on the bed, drank beer and watched television. According to G.H., Gittins then attacked her, held a pillow over her face, tore at her dress and raped her. Gittins contended that he and G.H. had consensual sex. He stated that after the sexual encounter G.H. asked if she could stay the night, and when Gittins refused, she began to scream. Gittins said that he then held a pillow over her face to stop her from screaming. Gittins asserted that holding the pillow over G.H.'s face accounted for her bruises and other injuries.

Gittins was charged with rape. He pled not guilty and went to trial before a jury. During deliberations, the jury sent to the judge four questions concerning the definition of penetration as that term was used in the jury instructions regarding the elements of rape. In response, the district court prepared instruction twenty which answered the jury's questions and further instructed the jury that the question of penetration was not in dispute and, therefore, not an issue about which the jury should be concerned. After receiving this instruction, the jury returned a guilty verdict.

Page 756

[129 Idaho 56] At the time that the judge provided this instruction, defense counsel did not object. However, Gittins later moved for a new trial alleging, among other things, that jury instruction twenty improperly invaded the province of the jury on an element of the offense charged. The district court denied the motion. The district court sentenced Gittins to a unified term of fifteen years with a seven-year minimum period of confinement.

Gittins claims on appeal that the district court erred in providing instruction twenty and in denying Gittins' motion for a new trial. Gittins argues that the district court erred in not, sua sponte, declaring a mistrial when the prosecuting attorney informed the jury during closing argument that Gittins did not testify at the preliminary hearing. Gittins further asserts that the district court erred in denying a motion for continuance and in admitting expert testimony that G.H. was "raped or quite close to it." For each of these assertions of error Gittins also claims his counsel was ineffective in failing to object to the actions of the court or the prosecutor. Finally, Gittins argues that the district court erred in refusing to allow a juror to testify regarding jury deliberations.

II.

ANALYSIS

Gittins argues that the district court erred in providing the jury with instruction twenty. When reviewing a district court's decision to give a particular instruction we use free review. State v. Gleason, 123 Idaho 62, 65, 844 P.2d 691, 694 (1992); State v. Colwell, 124 Idaho 560, 564, 861 P.2d 1225, 1229 (Ct.App.1993). We ask whether the instructions as a whole, and not individually, fairly and accurately reflect the applicable law. State v. Enno, 119 Idaho 392, 405, 807 P.2d 610, 623 (1991); State v. Velasquez-Delacruz, 125 Idaho 320, 323, 870 P.2d 673, 676 (Ct.App.1994). To be considered reversible error, an instruction must have misled the jury or prejudiced the complaining party. State v. Bowman, 124 Idaho...

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