State v. Kuhn
| Decision Date | 28 August 2003 |
| Docket Number | No. 28563.,28563. |
| Citation | 139 Idaho 710,85 P.3d 1109 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Billy R. KUHN, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Molly J. Huskey, State Appellate Public Defender; Charles Isaac Wadams, Deputy Appellate Public Defender, Boise, for appellant. Charles Isaac Wadams argued.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
Billy R. Kuhn appeals from the judgment of conviction and sentence entered by the district court after a jury found him guilty of lewd conduct with a minor under sixteen. Kuhn also appeals from the district court's order denying his I.C.R. 35 motion for reduction of sentence. We affirm.
The state's evidence at trial indicated that on June 26, 2001, police received a telephone call claiming that Kuhn had sexually molested the caller's young daughters. Officers learned that Kuhn had become a friend of the mother, the mother's boyfriend, and the daughters. During the seven months prior to the time police were contacted, Kuhn had spent hours at their home and frequently played video games with the daughters in their bedroom. The nine-year-old daughter reported that, out of curiosity, she asked Kuhn questions about sex. Kuhn answered her questions in a crude fashion using slang terms and asked her to have sex with him. Kuhn asked her to have sex on numerous occasions when they were alone in her room and elsewhere. Knowing it was wrong, the nine-year-old refused. She eventually told her mother, which led the mother to call the police.
Shortly after the police were called, the eight-year-old informed her mother that Kuhn had sexually abused her approximately three weeks earlier. At the time of the abuse, the daughters were home alone with Kuhn. Kuhn showed the eight-year-old daughter a pornographic movie. When she went to bed that night, the eight-year-old asked Kuhn to lay down on the top bunk bed with her because she was scared about the movie. Kuhn lay by her on the bed, talked to her about the movie, put his hand into her underpants, touched her genitals, showed her his penis and told her to touch it.
For his alleged acts with the eight-year-old daughter, Kuhn was charged with lewd conduct with a minor under sixteen. I.C. § 18-1508. For allegedly soliciting the nine-year-old daughter to participate in sexual activities, Kuhn was charged with sexual abuse of a child under sixteen. I.C. § 18-1506. A jury trial ended in a mistrial. A second trial was held, and a jury found Kuhn guilty of lewd conduct with a minor but not guilty of sexual abuse of a child. The district court sentenced Kuhn to a unified term of six years and six months, with a minimum period of confinement of one year and six months. Kuhn's subsequent Rule 35 motion for reduction of sentence was denied.
On appeal, Kuhn argues that the district court erroneously instructed the jury on the reasonable doubt standard, that the district court compromised Kuhn's right to a fair trial when it denied his request to dismiss a prospective juror for cause, that the state committed prosecutorial misconduct in closing argument, that the district court improperly imposed an excessive sentence, and that the district court erred when it denied his I.C.R. 35 motion for reduction of sentence.
Kuhn challenges the district court's reasonable doubt instruction, claiming that it impermissibly reduced the state's burden of proof in violation of the state and federal constitutions. The question whether the jury has been properly instructed is a question of law over which we exercise free review. State v. Gleason, 123 Idaho 62, 65, 844 P.2d 691, 694 (1992). When reviewing jury instructions, we ask whether the instructions as a whole, and not individually, fairly and accurately reflect applicable law. State v. Bowman, 124 Idaho 936, 942, 866 P.2d 193, 199 (Ct.App.1993).
In this case, the district court instructed the jury:
"Proof beyond a reasonable doubt" is proof that leaves you with an abiding conviction of the truth of the charge against the defendant. An abiding conviction is one that would make an ordinary person willing to act in the most important affairs of his or her own life. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof which overcomes every possible doubt. If, based upon your consideration of the evidence, you have an abiding conviction that the defendant is guilty of the crime charged, you must find the defendant guilty. If on the other hand, you think there is a reasonable doubt as to the defendant's guilt, you must give the defendant the benefit of the doubt and find the defendant not guilty.
Kuhn asserts that this instruction did not follow Idaho Criminal Jury Instruction (ICJI) 1031 defining reasonable doubt and that the failure to do so is grounds for reversal. Kuhn argues that the language "possible doubt" reduced the state's burden of proof by improperly allowing a jury to find an accused guilty even if a feasible doubt or improbable doubt remains.
The Idaho Supreme Court recently addressed this issue in State v. Sheahan, Docket No. 29121, 139 Idaho 267, 77 P.3d 956, 2003 WL 21782664 (Aug. 4, 2003). In Sheahan, the Court held that the use of the language "possible doubt," without modifying it with "imaginary," is permissible and did not lessen the state's burden of proof. Therefore, Kuhn's challenge of the "possible doubt" language fails.
Kuhn next contends that defining "abiding conviction" as "one that would make an ordinary person willing to act in the most important affairs of his or her own life" reduced the state's burden of proof. Kuhn argues that the district court should have instructed the jury that an abiding conviction is one that would make an ordinary person willing to act "without hesitation" in life's most important affairs. Kuhn cites several cases from other jurisdictions criticizing the "willingness to act" language in reasonable doubt instructions and indicating a preference for replacing that language with the "hesitate to act" standard. Although the reasonable doubt instruction given during Kuhn's trial was identical to the instruction given in Sheahan, the Idaho Supreme Court declined to address whether the "willing to act" and "ordinary person" language lessens the state's burden of proof because Sheahan failed to raise these arguments on intermediate appeal.2
The United States Supreme Court, as well as other courts, have indicated a preference for the hesitate to act language over the willingness to act language. In Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 138, 99 L.Ed. 150, 167 (1954), the Court noted that the trial court had defined reasonable doubt as the kind of doubt jurors "might be willing to act" upon in the more serious and important affairs of their own lives. The Court stated that the trial court should have defined reasonable doubt as one that would cause a person to hesitate to act in the important affairs rather than cause them to be willing to act. Despite the Court's express preference for the hesitate to act language, it concluded that the reasonable doubt instruction, taken as a whole, correctly conveyed the concept of reasonable doubt. Id. In a later case, the Supreme Court acknowledged its past approval of instructions defining reasonable doubt as a doubt that would cause a reasonable person to hesitate to act and stated that the hesitate to act standard gives a common-sense benchmark for how substantial such a doubt must be. See Victor v. Nebraska, 511 U.S. 1, 20-21, 114 S.Ct. 1239, 1250-1251, 127 L.Ed.2d 583, 599-600 (1994)
.
Ninth Circuit case law indicates a preference for the hesitate to act standard. See United States v. Robinson, 546 F.2d 309 (9th Cir.1976)
. In Robinson, the court noted that the trial court instructed the jury "in order that the evidence submitted shall afford proof beyond a reasonable doubt, it must be such as you would be willing to act upon in the most important and vital matters relating to your own affairs." Id., at 313. The court held that the instruction was given in error but concluded that the error was not reversible. The court reiterated that the preferred instruction would define reasonable doubt as one that would make a person hesitate to act in life's most important affairs. Robinson highlights the difference between defining "reasonable doubt" and defining "proof beyond a reasonable doubt." The Robinson case dealt with a jury instruction defining proof beyond a reasonable doubt, but the Robinson court based its decision on Holland, which addressed the definition of reasonable doubt.
In a subsequent case, United States v. Jaramillo-Suarez, 950 F.2d 1378 (9th Cir. 1991), the Ninth Circuit explained its preference for the hesitate to act standard. The Ninth Circuit's previous model instruction required the jury to return a guilty verdict if it found the evidence so convincing that an ordinary person would be willing to make the most important decisions in his or her own life on the basis of such evidence. In Jaramillo-Suarez, the court accepted the reasoning outlined in the current model instruction preferring hesitate to act, because making the most important decisions—such as choosing a spouse, buying a house, and borrowing money—may involve a heavy element of uncertainty and risk that is inappropriate when a jury is deciding the guilt of a criminal defendant. Id. After explaining its preference, the Ninth Circuit concluded that the instruction as a whole, taken in context with all of the other instructions, did not detract from the heavy burden imposed by the reasonable doubt standard and, thus, was not reversible error. Id.
Based on the Supreme Court's decision in Holland and the...
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