State v. Colwell

• Decision Date: 14 July 1993
• Docket Number: Nos. 19904,19586,s. 19904
• Citation: 861 P.2d 1225,124 Idaho 560
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Dennis Gerald COLWELL, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1225

861 P.2d 1225

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.

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 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 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 reasonable doubt, that the Defendant placed his erect penis in the vagina of the child, but did convince them that the other acts were done.

Colwell filed this appeal contending that the district court erroneously permitted the jury to convict him upon proof of an offense with which he was not charged, in violation of his right to be tried only upon charges contained in the Information. He further avers that the jury's verdict implicitly acquitting him of lewd conduct could mean only that the incident giving rise to that charge had not been proved, and that he therefore is entitled to a judgment of acquittal.

II.

In reviewing a district court's decision to give a particular jury instruction our "standard of review is one of free review." State v. Gleason, 123 Idaho 62, ---, 844 P.2d 691, 694 (1992). Free review requires that we determine whether the jury was properly and adequately instructed and "ascertain whether the instructions, when considered as a whole, fairly and adequately present the issues and state the applicable law. Reversible error only occurs when an instruction misleads the jury or prejudices a party." Manning v. Twin Falls Clinic & Hospital, 122 Idaho 47, 50-51, 830 P.2d 1185, 1188-89 (1992) (citations omitted).

It is well established that a jury properly may find a defendant guilty of an offense different from that charged in the Information if the offense is an offense included in the crime charged. See I.C. § 19-2132. An "included offense" is one which is necessarily committed while committing the crime charged, or the essential elements of which are alleged as the manner or means by which the charged offense has been committed. State v. McCormick, 100 Idaho 111, 594 P.2d 149 (1979); State v. Hall, 86 Idaho 63, 383 P.2d 602 (1963); State v. Croasdale, 120 Idaho 18, 813 P.2d 357 (Ct.App.1991). An offense may also be deemed an "included offense" if the evidence adduced at trial shows that such an offense necessarily was committed during the commission of the charged offense. State v. Bolton, 119 Idaho 846, 810 P.2d 1132 (Ct.App.1991).

The crime of lewd conduct with a minor specifically includes the act of genital-to-genital contact. I.C. § 18-1508. ² Sexual abuse of a child requires proof of physical contact, not amounting to lewd conduct, which is intended to gratify the lust or sexual desire of the actor. See I.C. [124 Idaho 565] *1230s 18-1506(3) ³. It is clear from these definitions that the crime of sexual abuse of a child is not necessarily committed while committing the crime of lewd conduct. However, depending upon the facts alleged in the pleading instrument and the evidence adduced at trial, the crime of sexual abuse may be considered by the jury as a lesser included offense if there is evidence that the included offense occurred during the commission of the charged offense. State v. Fodge, 121 Idaho 192, 824 P.2d 123 (1992); Croasdale, 120 Idaho at 19, 813 P.2d at 358; see also State v. O'Neill, 118 Idaho 244, 796 P.2d 121 (1990). ⁴

The court's instructions in this case, although adequately defining the elements of the offense of sexual abuse of a child, failed to inform the jury that it could find Colwell guilty of that offense only if it found he had committed sexual abuse during the commission of the offense charged. As expressly recognized by the district judge below and conceded by the state on appeal, the jury was permitted to find that the incident giving rise to the charge of lewd conduct had not occurred, but nonetheless could find Colwell guilty of sexual abuse based upon evidence that he rubbed cocoa butter on A.C.'s breasts and buttocks, that he trimmed her pubic hairs, or that he assisted her douche. Yet these acts, said to have been committed throughout the two-year period during which A.C. visited Colwell, were never shown to have occurred during the commission of the crime charged in the Information. Hence, these other, uncharged acts should not have been relied upon by the jury as evidence that he committed the included offense of sexual abuse of a child. We conclude that, in absence of any guidance from the district court in this regard, the instructions were overbroad and therefore erroneous. Cf. United States v. Baytank (Houston), Inc., 934 F.2d 599 (5th Cir.1991) (it is plain error to give instructions that permit a jury to convict for a crime not charged in the indictment); People v. Landry, 212 Cal.App.3d 1428, 261 Cal.Rptr. 254 (1989) (in felony murder case, instructions not precluding the jury's use of the wrong underlying felony held to be overbroad).

III.

The state submits that even if the court's instructions allowed the jury to find Colwell guilty upon proof of facts different from those alleged in the Information, such discrepancy amounted to a mere variance. Because Colwell was aware of the evidence, the state argues, he cannot show that his rights were prejudiced. We disagree.

Whether a variance is merely an imperfection in the trial...