State v. Hoffman

• Decision Date: 20 September 2002
• Docket Number: No. 27613.,27613.
• Court: Idaho Court of Appeals
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Ronald Theron HOFFMAN, Defendant-Appellant.

55 P.3d 890

137 Idaho 897

STATE of Idaho, Plaintiff-Respondent, v. Ronald Theron HOFFMAN, Defendant-Appellant.

No. 27613.

Court of Appeals of Idaho.

September 20, 2002.

Molly J. Huskey, State Appellate Public Defender; Charles Isaac Wadams, Deputy Appellate Public Defender, Boise, for appellant. Charles Isaac Wadams argued.

Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

LANSING, Judge.

Ronald Theron Hoffman was convicted of aggravated assault on a law enforcement officer and aggravated battery on a law enforcement officer. On appeal, Hoffman contends that the district court erred in its instructions to the jury, that there was insufficient evidence to support the conviction for aggravated battery, and that his sentences are illegal and excessive.

I. BACKGROUND

On November 17, 2000, at approximately 2:00 a.m., Sergeant Montoya, Detective Armstrong, and Deputy Shepard of the Canyon County Sheriff's Department went to a home where Hoffman was believed to be present. Their purpose was to execute a warrant for Hoffman's arrest. Once at the residence, Armstrong and Shepard went to the front door while Montoya, a canine handler, waited in the yard with his dog. Armstrong's knock was answered by an elderly man. After Armstrong asked whether Hoffman was there, the man gave Armstrong and Shepard permission to enter and led them to a back bedroom, where they saw Hoffman lying on a bed, wrapped in a blanket.

According to subsequent trial testimony, Hoffman became agitated and started to act aggressively. He began shuffling toward Armstrong and Shepard with his left hand wrapped in the blanket. While moving towards them, Hoffman told the officers that they would have to kill him if they wanted to arrest him. Because Hoffman's left hand was concealed in the blanket, both Armstrong and Shepard drew their weapons and demanded that Hoffman show his hands. When Hoffman did not comply, Shepard attempted to gain control of Hoffman's left hand by grasping it, but Hoffman slapped Shepard's hand away. Following an unsuccessful second attempt, Shepard used his pepper spray on Hoffman's eyes, causing Hoffman to stagger away from the officers.

While Hoffman was staggering backwards from the effects of the pepper spray, Sergeant Montoya and his dog entered the bedroom. Montoya repeatedly yelled at Hoffman that the dog would be released unless Hoffman showed his hands. Hoffman did not respond, but instead continued to move backward, stepped onto the bed, and lunged for the window. At that point, Montoya released his dog, which attacked Hoffman's right arm. Hoffman and the dog rolled off the bed and onto the floor. Hoffman attempted to climb out the window a second time, but the dog jumped on Hoffman's back and dragged him back to the floor. When Hoffman attempted to go to the window a third time, Montoya "bear-hugged" Hoffman around the waist. While Montoya was attempting to wrestle Hoffman to the ground, Shepard began striking Hoffman's body with his flashlight. According to Shepard's testimony, Hoffman then reached around Montoya with his right hand and started grabbing for Montoya's pistol. Realizing what Hoffman was doing, Shepard repeatedly struck Hoffman's right arm with the flashlight, but the blows did not deter Hoffman and he continued to manipulate the gun. Shepard then yelled "gun, gun, gun," and dropped the flashlight in order to use both hands to prevent Hoffman from extracting the weapon from its holster.

According to Shepard, the moment he placed both hands on Montoya's weapon, a single shot was fired, hitting Montoya in the leg. Shepard then grabbed the barrel of the weapon with both hands and began to wrestle it away from Hoffman. However, when Shepard later took one hand off the weapon to radio dispatch that Montoya had been shot, Hoffman gained control of the pistol and pointed it at Montoya and Shepard. Shepard was eventually able to pull the weapon from Hoffman's hand, which allowed Armstrong to handcuff Hoffman and place him under arrest. The struggle for the weapon lasted approximately five to seven minutes. Hoffman repeatedly told the officers throughout the struggle that he wanted the officers to kill him.

Hoffman was charged by information with one count of aggravated battery upon a law officer, Idaho Code §§ 18-903(c),-907(b),-915, and one count of aggravated assault upon a law officer, I.C. §§ 18-901(b),-905(a),-915; and the information alleged that as to each count, Hoffman was subject to a sentence enhancement for use of a firearm during the commission of the crime, I.C. § 19-2520. Hoffman was convicted of the charges after a jury trial. The district court sentenced him to a unified term of twenty-five years of imprisonment with ten years determinate for the aggravated battery and a concurrent ten-year determinate term for the aggravated assault.

II. ANALYSIS

A. Jury Instructions Regarding Intent

Hoffman first contends that the district court erred when it refused his request for an instruction incorporating the language of I.C. § 18-114, which specifies, "In every crime or public offense there must exist a union, or joint operation, of act and intent ...." The refusal of this instruction was crucial, Hoffman asserts, because it was the defense theory that he did not intend to shoot Sergeant Montoya.

When determining whether a jury was properly instructed, we ask whether the instructions as a whole, and not individually, fairly and accurately reflect applicable law. State v. Harris, 136 Idaho 484, 485, 36 P.3d 836, 837 (Ct.App.2001); State v. Tadlock, 136 Idaho 413, 414, 34 P.3d 1096, 1097 (Ct.App. 2001); State v. Hanson, 130 Idaho 842, 844, 949 P.2d 590, 592 (Ct.App.1997). A trial court's refusal of a proffered jury instruction will not be deemed error if the requested instruction was an erroneous statement of the law, addressed subject matter that was adequately covered by other instructions, or was not supported by the facts of the case. State v. Cortez, 135 Idaho 561, 565, 21 P.3d 498, 502 (Ct.App.2001); State v. Lesley, 133 Idaho 23, 25, 981 P.2d 748, 750 (Ct.App.1999); State v. Schneider, 129 Idaho 59, 63, 921 P.2d 759, 763 (Ct.App.1996).

Here, the jury was instructed on the elements of aggravated assault on a law enforcement officer and aggravated battery on a law enforcement officer. The instructions that defined "assault" and "battery" mirrored the definitions of the crimes found in I.C. §§ 18-901 and 18-903, and identified the specific mental states required for the commission of these offenses. No further instruction based on I.C. § 18-114 was necessary to inform the jury of the requisite mental elements. Therefore, the district court did not err in refusing the defendant's requested instruction.

B. Variance Between Charging Instruments and Jury Instructions

Next, Hoffman contends that the jury instructions varied from the allegations of the charging information regarding the factors that caused the assault and the battery to be "aggravated." This variance, he asserts, deprived him of due process.

The information alleged, for each count, that the offense was aggravated because it was committed "by means of a deadly weapon, to-wit: a firearm ...." The jury was instructed, however, that the assault would be aggravated if it was committed "with a deadly weapon or instrument or by any means or force likely to produce great bodily harm." (Emphasis added.)¹ As to battery, the jury was instructed that the crime would be aggravated if Hoffman "caused great bodily harm, permanent disability, or permanent disfigurement or used a deadly weapon." (Emphasis added.)² Hoffman complains that under the jury instructions, the jury may have convicted him based upon aggravating factors of which he was not given notice by the information. Hoffman did not bring this discrepancy between the information and the instructions to the attention of the trial court. He is not thereby precluded from presenting the issue to this Court, however, for errors in instructions given to the jury may be raised for the first time on appeal. State v. Smith, 117 Idaho 225, 229, 786 P.2d 1127, 1131 (1990).

The instructions of which Hoffman now complains unquestionably varied from the description of offenses contained in the information. Whether Hoffman is consequently entitled to a new trial turns upon whether the variance was prejudicial error or merely a harmless imperfection in the trial. State v. Sherrod, 131 Idaho 56, 59, 951 P.2d 1283, 1286 (Ct.App.1998). A variance between a charging instrument and a jury instruction necessitates reversal "only when it deprives the defendant of his right to fair notice or leaves him open to the risk of double jeopardy." State v. Windsor, 110 Idaho 410, 417-18, 716 P.2d 1182, 1189-90 (1985); State v. Brazil, 136 Idaho 327, 330, 33 P.3d 218, 221 (Ct.App.2001). Here, we are informed of no risk of double jeopardy, and therefore we examine whether Hoffman was deprived of fair notice of the elements of the offenses against which he needed to defend.

In both Sherrod and Brazil, this Court found it necessary to reverse a conviction of aggravated battery because instructions allowed the jury to base the finding of the aggravating factor of great bodily harm upon injuries other than those that were alleged to constitute great bodily harm in the charging information. The defendants were entitled to relief because they had not been on notice of a need to present evidence or argument that the victims' injuries, other than those referenced in the information, were insufficiently severe to amount to great bodily harm or permanent disfigurement.

We do not conclude that relief from the judgment is similarly warranted in the present case because, according to the trial evidence, the only significant bodily harm caused or threatened by Hoffman was from use of a deadly weapon, the firearm. On this...