State v. Curtis
| Decision Date | 21 July 1997 |
| Docket Number | No. 23565,23565 |
| Parties | STATE of Idaho, Plaintiff-Appellant, v. Gregory Ryan CURTIS, Defendant-Respondent, Caldwell, April 1997 Term |
| Court | Idaho Supreme Court |
Alan G. Lance, Attorney General; Michael A. Henderson (argued), Deputy Attorney General, for Plaintiff-Appellant.
Arthur M. Bistline, Coeur d'Alene, for Defendant-Respondent.
ON REVIEW
The respondent, Gregory Ryan Curtis (Curtis), was convicted of one count of misdemeanor driving while under the influence pursuant to I.C. § 18-8004. Curtis argues on review that the magistrate judge committed reversible error by failing to instruct the jury on the offense of inattentive driving.
On March 19, 1993, at around 11:00 p.m., the respondent Gregory R. Curtis (Curtis) was arrested and charged with violating I.C. §§ 18-8004, driving while under the influence, and 18-8001, driving a vehicle without privileges. Curtis plead not guilty to both charges. 1
A jury trial was held on September 8, 1993. The jury found Curtis guilty of driving while under the influence. Curtis appealed to the district court arguing that the magistrate judge erred in refusing Curtis's request that the magistrate judge instruct the jury on inattentive driving as an included offense of driving under the influence.
The district judge reversed the decision of the magistrate judge refusing to instruct the jury regarding the offense of inattentive driving. The district judge ruled that "[i]f requested by a party and supported by the evidence, trial courts are required by I.C. § 19-2132(b) to instruct on the requested included offense or offenses." The district court ruled that inattentive driving was an included offense of driving under the influence in this case since the evidence indicated that the driving activities of Curtis would reasonably support a jury verdict of inattentive driving.
The State appealed to this Court. The Idaho Court of Appeals heard oral argument and affirmed the judgment of conviction for driving under the influence. State v. Curtis, 944 P.2d 122 (App.1996). Curtis filed a petition for review before this Court. On January 30, 1997, this Court granted review.
On review from the Court of Appeals this Court values the decision of the Court of Appeals. State v. Roberts, 129 Idaho 194, 197, 923 P.2d 439, 442 (1996). While this Court gives serious consideration to the views of the Court of Appeals, this Court reviews the decision of the trial court directly. Id.
The determination of whether a particular crime is an included offense of the crime charged involves a question of law over which this Court exercises free review. See State v. Thompson, 101 Idaho 430, 614 P.2d 970 (1980).
The State argues that inattentive driving was not a lesser included offense of the charge of driving under the influence in this case. We agree.
Curtis was charged with and convicted of the crime of operating a vehicle while under the influence of an alcoholic beverage, I.C. § 18-8004. Curtis argues that the magistrate judge erred in refusing to instruct the jury on the offense of inattentive driving. Curtis urges this Court to follow the holding in State v. Boyenger, 95 Idaho 396, 509 P.2d 1317 (1973), and hold that based upon the evidence adduced at trial in this case, inattentive driving was a lesser included offense of operating a vehicle while under the influence of an alcoholic beverage.
Idaho Code § 19-2132 directs when a jury should be instructed regarding an included offense. Idaho Code § 19-2132 states:
(b) The court shall instruct the jury with respect to a lesser included offense if:
(1) Either party requests such an instruction; and
(2) There is a reasonable view of the evidence presented in the case that would support a finding that the defendant committed such lesser included offense but did not commit the greater offense.
I.C. § 19-2132(b) (Supp.1996). Idaho Code § 19-2312 provides when a defendant may be convicted of an included offense. Idaho Code § 19-2312 (1987) states:
The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense.
There are two theories under which a particular offense may be determined to be a lesser included offense of a charged offense. Under the first theory, a court will determine whether a crime is a lesser included offense by first looking to the statute defining the crime and ascertaining if the matter urged as a lesser included offense is one that is necessarily included in that crime which is defined in the particular statute. This theory has been referred to as the "statutory theory."
In Sivak v. State, 112 Idaho 197, 731 P.2d 192 (1986), this Court held that under the statutory theory, an offense is not considered a lesser included offense of the charged offense unless it is necessarily so under the statutory definition of the charged offense. Sivak, 112 Idaho at 211, 731 P.2d at 206; see also Thompson, 101 Idaho at 433, 614 P.2d at 973. For an offense to be an included offense of a charged offense under the statutory theory, it must be impossible to commit the greater offense without having committed the lesser offense. Thompson, 101 Idaho at 433, 614 P.2d at 973.
Under the second theory a court will look to see if the information (complaint) charges the accused with a crime the proof of which necessarily includes the proof of the acts which constitute the lesser included offense. This theory is referred to as the "pleading theory." Sivak, 112 Idaho at 211, 731 P.2d at 206. Under the pleading theory "an offense is an included offense if it is alleged in the information as a means or element of the commission of the higher offense." Sivak, 112 Idaho at 211, 731 P.2d at 206 (quoting State v. Anderson, 82 Idaho 293, 301, 352 P.2d 972, 977 (1960)); see also State v. Cariaga, 95 Idaho 900, 902, 523 P.2d 32, 34 (1974) (); State v. Hall, 88 Idaho 117, 122-23, 397 P.2d 261, 263-64 (1964) (); State v. Missenberger, 86 Idaho 321, 322-24, 386 P.2d 559, 559-61 (1963) (); In re McLeod, 23 Idaho 257, 268-69, 128 P. 1106, 1110 (1913) (). If the first prong of the pleading theory has been met then the trial court must determine whether a reasonable...
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