State v. Chapa

• Decision Date: 31 July 1995
• Docket Number: No. 21165,21165
• Citation: 127 Idaho 786,906 P.2d 636
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Gilbert CHAPA, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 636

906 P.2d 636

127 Idaho 786

STATE of Idaho, Plaintiff-Respondent, v. Gilbert CHAPA, Defendant-Appellant.

No. 21165.

Court of Appeals of Idaho.

July 31, 1995.

Rehearing Denied Oct. 6, 1995.

Petition for Review Denied Dec. 19, 1995.

Church, Snow & Haley, Burley, for defendant-appellant.

Alan G. Lance, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for plaintiff-respondent.

LANSING, Judge.

Gilbert Chapa appeals from his conviction for rape, I.C. § 18-6101(3). Chapa asserts a number of grounds for reversal which can be summarized as follows: (1) the information under which he was convicted failed to properly allege the necessary elements of rape; (2) the district court erred in giving to the jury an accessory liability instruction; (3) the evidence adduced at trial was insufficient to support the jury's verdict; (4) his sentence as compared to that of a co-defendant violates constitutional guarantees of equal protection; and (5) his unified sentence of life imprisonment with a minimum term of twenty years constitutes an abuse of the district court's discretion. We find that the information sufficiently alleged the crime of rape, but conclude that the jury's verdict and the judgment of conviction must be vacated due to error in instructing the jury. Because the judgment is vacated, we do not reach the remaining assignments of error.

I.

According to the evidence presented by the State at trial, the female victim in this case was beaten and sexually assaulted by two men. Chapa and Roy R. Garcia were charged with rape in connection with the attack.

At trial, the victim testified as follows. She met Chapa and Garcia in a bar in Burley, Idaho on the night in question. They left the bar together and drove to a trailer home where an acquaintance of Chapa's resided. There they were joined by a third man. The victim and the three men left the trailer and departed in Chapa's automobile. They drove to an isolated area where Chapa and Garcia forcibly pulled the victim from the vehicle. After beating her with their fists, first Garcia and then Chapa had forced sexual intercourse with her. Following the rapes, the men left the victim and drove away. She made her way to a farmhouse and contacted the authorities.

The jury found Chapa guilty of rape, and a judgment of conviction was entered accordingly. ¹

II.

We begin by considering Chapa's argument, raised for the first time in this appeal, that the information was insufficient because it did not allege all the elements of the crime of rape. The one-count information charged the offense as follows:

That the said defendant, Gilbert Chapa, on or about October 17, 1992, and before the filing of this Information, in the County of Cassia, State of Idaho, did feloniously accomplish an act of sexual intercourse with a female person, [the victim], where the act was accomplished by force and violance [sic]. All in violation of Idaho Code Section 18-6101(3).

Chapa argues that the information was fatally defective because it did not expressly allege that the victim resisted but her resistance was overcome by force or violence, an element of the offense defined by I.C. § 18-6101(3). ²

We readily acknowledge that a well-drafted information charging a violation of I.C. § 18-6101(3) should include allegations that the victim resisted, and that her resistance was overcome by force or violence. We conclude, however, that the omission of these allegations is not fatal in this case.

It must be observed at the outset that Chapa's tardiness in challenging the information affects the standard of scrutiny applied on review. Although an objection that an information fails to charge an offense may be asserted for the first time on appeal, I.C.R. 12(b)(2); State v. Cahoon, 116 Idaho 399, 400, 775 P.2d 1241, 1242 (1989); State v. Robran, 119 Idaho 285, 287, 805 P.2d 491, 493 (Ct.App.1991), an information "not challenged before trial [will] be upheld unless it is so defective that it does not, by any fair or reasonable construction, charge an offense for which the defendant is convicted." Cahoon, 116 Idaho at 400, 775 P.2d at 1242; State v. Leach, 126 Idaho 977, 895 P.2d 578 (Ct.App.1995). Where the sufficiency of the information was not questioned prior to the verdict, the appellate court "has considerable leeway to imply the necessary allegations from the language of the Information." Robran, 119 Idaho at 287, 805 P.2d at 493. A technical deficiency that did not prejudice the defendant does not necessitate setting a conviction aside. Cahoon, 116 Idaho at 400, 775 P.2d at 1242.

Here, the allegation that Chapa accomplished an act of sexual intercourse with the victim by use of force and violence carries an obvious implication that the act was done without the victim's consent and over her resistance. Moreover, the information in this case cited the specific subsection of the rape statute I.C. § 18-6101(3), under which the charge was brought. This provided additional notice to Chapa of the elements of rape to be proved by the State in order to convict. Finally, Chapa makes no claim that the language of the information prejudiced him in the preparation or presentation of his defense. Indeed, his reservation of this objection to the information until appeal tends to negate any suggestion of prejudice.

Applying the liberal rule of construction applicable here, we conclude that the information was sufficient to charge Chapa with the offense of rape under I.C. § 18-6101(3).

III.

Chapa also contends that an error in the instructions to the jury renders his conviction invalid.

In addition to instructing the jury on the elements of rape under I.C. § 18-6101(3) and on the State's burden to prove these elements in order to establish Chapa's guilt as the perpetrator of the offense, the trial court gave a further instruction which advised the jury that Chapa could also be guilty if he aided and abetted a rape perpetrated by another. That instruction stated in part:

The law makes no distinction between a person who directly participates in the acts constituting a crime and a person who, either before or during its commission, intentionally aids, assists, facilitates, promotes, encourages, counsels, solicits, invites, helps or hires another to commit a crime with intent to promote or assist in its commission. Both can be found guilty of the crime.

Chapa objected to this instruction on due process grounds. He argued that the information charged him only with personally committing the physical act of rape and provided no notice that the State would also seek a conviction on the theory that Chapa aided and abetted the rape of the victim by Garcia. The district court overruled Chapa's objection. The jury returned a general verdict that Chapa was guilty of the crime of rape.

Chapa carries forward his due process argument in this appeal. Under the particular facts presented here, we agree with his assertion that the use of the accessory liability instruction deprived Chapa of due process, for it allowed the jury to consider whether Chapa was guilty of either of two offenses when only one offense had been charged by the information.

In his closing argument, the prosecutor reminded the jury of the victim's testimony that both Chapa and Garcia had sexual intercourse with her, and he argued that this testimony established that Chapa individually had raped the victim. The prosecutor went on to state, however, that even if the jury were to find "that there was no penetration, no entrance of the penis of Mr. Chapa into the vagina of [the victim], what we commonly call sexual intercourse, you can still find him guilty of rape under aiding and abetting." The prosecutor urged the jury, "If you find that Mr. Chapa did not have sex with [the victim] but that he did help so that Mr. Garcia could have sex with [the victim], he's as guilty of the crime of rape as is Mr. Garcia." As general statements of the law of accomplice liability, we have no disagreement with the prosecutor's arguments. The flaw in this case is the method by which the State chose to prosecute Chapa for what are clearly two rapes by different actors, and therefore two separate crimes.

This Court has previously approved of a jury instruction on accessory liability in circumstances which, at first blush, may seem indistinguishable from the case before us. In State v. Wheeler, 109 Idaho 795, 711 P.2d 741 (Ct.App.1986), the information alleged that Wheeler personally shot and killed the deceased, and the State presented evidence to support that theory. Based upon additional evidence that Wheeler had been accompanied by another man who could have been the one who fired the weapon, the district court instructed the jury that it could also find Wheeler guilty of aiding and abetting the murder. On appeal, Wheeler argued he had not been given notice that he could be found guilty of aiding and abetting the offense. This Court rejected Wheeler's argument. We first noted that I.C. § 19-1430 ³ abolishes any distinction between principals and accessories and makes all parties involved in the commission of a crime culpable as principals. Wheeler, 109 Idaho at 796, 711 P.2d at 742. We then acknowledged the Idaho Supreme Court's decision in State v. Ayres, 70 Idaho 18, 211 P.2d 142 (1949), holding that where the evidence showed the defendant was an accessory to the charged crime, there was not a fatal variance between the proof at trial and the allegations of the information charging the defendant as a principal. Relying upon the Ayres rationale, this Court held that, "if an accused is fully advised of the acts he is charged with committing, 'he is presumed to know that he would be a principal and guilty as such whether he directly committed the acts charged or aided and abetted in their commission by another.' " Wheeler, 109 Idaho at 796, 711 P.2d at 742, quoting Ayres, 70 Idaho at 27-28, 211 P.2d at 147.

Wheeler and Ayres are not...