State v. Browning, 19890

• Court: Court of Appeals of Idaho
• Writing for the Court: SILAK; WALTERS, C.J., and SWANSTROM
• Citation: 123 Idaho 748,852 P.2d 500
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Donald Rhea BROWNING, Defendant-Appellant.
• Docket Number: No. 19890,19890
• Decision Date: 08 April 1993

Page 500

852 P.2d 500 123 Idaho 748 STATE of Idaho, Plaintiff-Respondent,
v.
Donald Rhea BROWNING, Defendant-Appellant. No. 19890. Court of Appeals of Idaho. April 8, 1993.
Petition for Review Denied June 8, 1993.

Page 501

[123 Idaho 749] Alan E. Trimming, Ada County Public Defender and Deborah A. Whipple, Deputy Public Defender, Boise, for appellant.

Larry J. EchoHawk, Atty. Gen. and L. Lamont Anderson, Deputy Atty. Gen., Boise, for respondent.

SILAK, Acting Judge.

Donald Rhea Browning pled guilty pursuant to a plea bargain to forcible sexual penetration by use of a foreign object, I.C. § 18-6608. Browning appeals from the judgment of conviction after reserving the right to appeal under I.C.R. 11(d)(1)(C). We affirm.

FACTS AND PROCEDURE

Browning entered the residence of the victim in August of 1991, and attempted to rape her. However, Browning was only able to penetrate the victim's vagina with his finger. Browning was indicted for forcible sexual penetration by use of a foreign object, I.C. § 18-6608; battery with intent to commit a serious felony (rape), I.C. §§ 18-903(a), -911; and first degree burglary, I.C. §§ 18-1401, -1402, -1404. Browning moved to dismiss the penetration count and argued that a finger did not constitute a "foreign object" for purposes of I.C. § 18-6608. The district court denied Browning's motion and ruled that a finger was a foreign object.

Browning entered into a plea agreement wherein he pled guilty to the penetration charge in exchange for the state dismissing the other claims and stipulating that he could appeal the district court's denial of his motion to dismiss. Browning appeals, arguing that the legislature did not intend for a finger to be included within the statutory phrase "any object." For the reasons stated below, we affirm.

STANDARD OF REVIEW

The construction and application of a legislative act present pure questions of law that we review freely. Hanks v. State, 121 Idaho 153, 154, 823 P.2d 187, 188 (Ct.App.1992). Our Supreme Court has stated the primary canon of statutory construction: "where the language of the statute is unambiguous, the clear expressed intent of the legislature must be given effect and there is no occasion for construction." Otteson v. Board of Commrs. of Madison County, 107 Idaho 1099, 1100, 695 P.2d 1238, 1239 (1985). "Moreover, unless a contrary purpose is clearly indicated, ordinary words will be given their ordinary meaning when construing a statute." Bunt v. City of Garden City, 118 Idaho 427, 430, 797 P.2d 135, 138 (1990).

ANALYSIS

The first step in analyzing whether a charged act falls within the prohibition of

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[123 Idaho 750] a statute is to determine if the language of the statute is ambiguous. If the language is not ambiguous then we will not construe the statute. Idaho Code section 18-6608 provides:

Forcible penetration by use of a foreign object--Every person who causes the penetration, however slight, of the genital or anal opening of another person, by any object, instrument or device, against the victim's will by use of force or violence or...