State v. Stricklin

• Decision Date: 25 June 2001
• Docket Number: No. 26120.,26120.
• Citation: 32 P.3d 158,136 Idaho 264
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Ronald W. STRICKLIN, Jr., Defendant-Appellant.
• Court: Idaho Court of Appeals

32 P.3d 158

136 Idaho 264

STATE of Idaho, Plaintiff-Respondent, v. Ronald W. STRICKLIN, Jr., Defendant-Appellant.

No. 26120.

Court of Appeals of Idaho.

June 25, 2001.

Review Denied September 24, 2001.

Radakovich Law Office, Lewiston, for appellant. Danny J. Radakovich argued.

Hon. Alan G. Lance, Attorney General; Karen A. Hudelson, Deputy Attorney General, Boise, for respondent. Karen A. Hudelson argued. SCHWARTZMAN, Chief Judge.

Ronald W. Stricklin, Jr., was charged with and convicted of nine counts of grand theft from his employer, the Panhandler Pies restaurant. Stricklin appeals, challenging the jury instructions and the sufficiency of the evidence. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

According to the evidence presented by the state, Stricklin stole several thousand dollars from Panhandler Pies while employed there as the general manager of the Lewiston restaurant. Stricklin was charged with nine counts of grand theft.

At trial, the state's evidence against Stricklin consisted of documents showing the sales, proceeds, and deposits on the dates of Stricklin's offenses and the testimony of Stricklin's assistant managers, Brad Brown and Craig Blohm, as well as Rex Williams, who was Stricklin's uncle and the owner of Panhandler Pies. Brown, Blohm, and Williams each testified that restaurant proceeds on the days Stricklin had allegedly stolen funds were significantly greater than the amount Stricklin deposited into the bank and that Stricklin had altered the ledger book entries on those dates. Stricklin testified that he had not stolen any of the funds. Rather, he had withheld the funds from the daily deposits and applied them to other days' sales in order to make it appear that he was meeting his daily cost goals in order to get monthly bonuses.

After a jury trial, Stricklin was found guilty of all nine counts of grand theft. The district court sentenced Stricklin to nine concurrent unified terms of five years, with two years fixed, with retained jurisdiction, followed by a period of probation. Stricklin appeals.

II.

JURY INSTRUCTIONS

A. Standard Of Review

The question of whether the jury was properly instructed is one of law over which this Court exercises free review. State v. Bush, 131 Idaho 22, 32, 951 P.2d 1249, 1259 (1997); State v. Buckley, 131 Idaho 179, 182, 953 P.2d 619, 622 (Ct.App.1997), aff'd, 131 Idaho 164, 953 P.2d 604 (1998). On appeal, jury instructions are viewed as a whole, not individually, to determine whether the jury was properly and adequately instructed on the applicable law. State v. Row, 131 Idaho 303, 310, 955 P.2d 1082, 1089 (1998); State v. Rozajewski, 130 Idaho 644, 646, 945 P.2d 1390, 1392 (Ct.App.1997). To be reversible error, an instruction must mislead the jury or misstate the law. State v. Merwin, 131 Idaho 642, 647, 962 P.2d 1026, 1031 (1998); State v. Hanson, 130 Idaho 842, 844, 949 P.2d 590, 592 (Ct.App.1997).

B. The Offense Instruction

Stricklin objects to jury instruction 10, the grand theft elements instruction. While acknowledging that the instruction is a correct statement of the elements of grand theft, Stricklin argues that the instruction combines all nine counts, thereby inviting the jury to compound and cumulate the evidence as to each count with evidence as to any or all of the other counts. We disagree. Prior to reading instruction 10 to the jury, the district court read the charge instruction, which identified and segregated each of the nine counts of grand theft. The court then informed the jury that each of the nine counts charged grand theft, but that each count differed by the date on which it occurred. The court informed the jury that: "Each count charges a separate and distinct offense. You must decide each count separately on the evidence and the law that applies to it, uninfluenced by your decision as to any other count charged." The court then read instruction 10, the grand theft elements instruction. Taken as a whole, we cannot say that instruction 10 in any way invited the jury to cumulate the evidence on one count with evidence on another count. Finally, we note that the verdict form correctly segregated each count.

Instruction 10 is an accurate statement of the law. Stricklin has failed to indicate how this instruction denied him a fair trial. Accordingly, we find no error in the instruction.

C. The Reasonable Doubt Instruction

Stricklin argues that the district court's reasonable doubt instruction (instruction 18) given to the jury was improper. We construe Stricklin's argument to be that the instruction failed to comply with the requirements of due process. The reasonable doubt instruction stated:

A defendant in a criminal action is presumed to be innocent unless the contrary is proved, and in case of a reasonable doubt whether the defendant's guilt is satisfactorily shown, the defendant is entitled to a verdict of not guilty. This presumption places upon the State the burden of proving the defendant guilty beyond a reasonable doubt.

Reasonable doubt is defined as follows. It is not merely possible doubt, because everything related to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the mind of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.

The approved Idaho jury instruction on reasonable doubt, ICJI 103, provides:

A defendant in a criminal action is presumed to be innocent unless the contrary is proved, and in case of a reasonable doubt whether the defendant's guilt is satisfactorily shown, the defendant is entitled to a verdict of not guilty. This presumption places upon the State the burden of proving the defendant guilty beyond a reasonable doubt.

Reasonable doubt is defined as follows. It is not merely possible doubt, because everything related to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the mind of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.

(Emphasis added). See, e.g., State v. Cotton, 100 Idaho 573, 577, 602 P.2d 71, 75 (1979)

. According to Stricklin, the reasonable doubt instruction given was improper because the second paragraph omitted the "moral certainty" language contained in ICJI 103.

Where the trial court gives a reasonable doubt instruction other than the approved instruction, this Court's review focuses upon whether the instruction that was given to the jury misstated the law or was so confusing and argumentative as to mislead the jury. State v. Rhoades, 121 Idaho 63, 82, 822 P.2d 960, 979 (1991) (affirming Rhoades' conviction where the reasonable doubt instruction given was not that approved in Cotton, while reiterating that the only appropriate reasonable doubt instruction is the California jury instruction adopted in Cotton). The United States Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 1242-43, 127 L.Ed.2d 583, 590 (1994). "The Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof. Rather, `taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to the jury.'" 511 U.S. at 5, 114 S.Ct. at 1242-43, 127 L.Ed.2d at 590 (quoting Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137-38, 99 L.Ed. 150, 166-67 (1954)).

With the "to a moral certainty" language inserted, the reasonable doubt instruction would have been identical to the California reasonable doubt jury instruction specifically approved by the Idaho Supreme Court. State v. Hairston, 133 Idaho 496, 513-14, 988 P.2d 1170, 1187-88 (1999); Cotton, 100 Idaho at 576,602 P.2d at 74. We note that the California reasonable doubt instruction has recently been modified to omit the "to a moral certainty" language. See CALJIC No. 2.90 (6th ed., 1996).¹ We also note that the Idaho Criminal Jury Instruction Committee has proposed a revision to the reasonable doubt instruction similarly omitting the "moral certainty" language. ICJI 103A.

In Victor, the United States Supreme Court held that an instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, would correctly state the government's burden of proof, noting that the definitions of reasonable doubt most widely used in the federal courts do not contain any reference to moral certainty. 511 U.S. at 18-28, 114 S.Ct. at 1249-54, 127 L.Ed.2d at 598-604. The Victor Court agreed with the petitioners argument that moral certainty has lost its historical meaning and considered that the phrase might not be recognized by modern jurors as a synonym for proof beyond a reasonable doubt. Id. at 13-14, 114 S.Ct. at 1246-47, 127 L.Ed.2d at 595. While not holding that use of the term moral certainty in the full context of the instruction lowered the standard of proof from that which due process requires, the Court also stated that we do not condone the use of the phrase. Id. at 16, 114 S.Ct. at 1248, 127 L.Ed.2d at 596-97. Using Victor as a beacon, the California Supreme Court, in People v. Freeman, 8 Cal.4th 450, 34 Cal. Rptr.2d 558, 882 P.2d 249, 279-80 (1994), held that the trial courts might safely delete "moral evidence" and "moral certainty" from the reasonable doubt instruction based upon the Court's conclusion that the phrases add nothing to the jury's understanding of the concept of reasonable doubt and are not required to satisfy due process under the federal constitution. Id. We are constrained to fully agree.²

Accordingly, we hold that the district court's reasonable doubt...