                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 45041

STATE OF IDAHO,                                  )
                                                 )    Filed: September 10, 2018
       Plaintiff-Respondent,                     )
                                                 )    Karel A. Lehrman, Clerk
v.                                               )
                                                 )    THIS IS AN UNPUBLISHED
DEAN WESLEY PADGETT,                             )    OPINION AND SHALL NOT
                                                 )    BE CITED AS AUTHORITY
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Lynn G. Norton, District Judge.

       Judgment of conviction, affirmed.

       Fyffe Law; Robyn A. Fyffe, Boise, for appellant. Robyn A. Fyffe argued.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
                 ________________________________________________

HUSKEY, Judge
       Dean Wesley Padgett appeals from his judgment of conviction entered after a jury found
him guilty of felony battery on a law enforcement officer. Padgett argues the district court erred
in instructing the jury, which violated Padgett’s right to due process. We determine the district
court’s jury instructions did not amount to fundamental error because Padgett fails to establish
that the incorrect jury instruction affected the trial proceedings. Therefore, we affirm the district
court’s judgment of conviction.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       According to testimony at trial, an officer watched Padgett participate in a physical
altercation in a store parking lot. The officer called for backup and when additional police
officers arrived, Padgett climbed into the front passenger seat of a nearby vehicle. An officer
approached the vehicle and ordered everyone to get out of the vehicle with their hands up. Three

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individuals exited the vehicle but Padgett remained seated in the front passenger seat, where he
dropped his hands and appeared to be manipulating something in his lap. Padgett then placed a
baggie containing a white crystal substance in his mouth. The officer opened the door of the
vehicle and attempted to pull Padgett out, but Padgett resisted by flailing his arms and twisting
his body. In the course of these events, Padgett struck or slapped the officer several times. After
Padgett’s physical resistance, the officer punched Padgett in the chest to facilitate an arrest. The
officer was able to gain physical control of Padgett and pull Padgett out of the vehicle, but the
fight continued until the officer ultimately handcuffed Padgett. After Padgett was handcuffed, he
was transported to a local hospital.
       The State charged Padgett with felony battery on a law enforcement officer, Idaho Code
§ 18-915(3). 1 The jury found Padgett guilty of felony battery on a law enforcement officer. 2
The district court imposed a unified sentence of five years, with two years determinate.
       Padgett timely appeals.
                                                II.
                                   STANDARD OF REVIEW
       Whether the jury has been properly instructed is a question of law over which we
exercise free review. State v. Severson, 147 Idaho 694, 710, 215 P.3d 414, 430 (2009). 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).
                                                III.
                                           ANALYSIS
       Padgett argues a jury instruction given by the district court violated Padgett’s right to due
process. At the jury instruction conference, the district court proposed the following instruction:
                                       INSTRUCTION NO. 13
              In order for the defendant to be guilty of Battery on a Law Enforcement
       Officer in Count I, the state must prove each of the following:
1
       The State also charged Padgett with three misdemeanors: (1) destruction, alteration, or
concealment of evidence, Idaho Code § 18-2603; (2) battery, I.C. § 18-903; and (3) resisting or
obstructing officers, I.C. § 18-705. These charges are not at issue on appeal.
2
       The jury also found Padgett guilty of: (1) destruction, alteration, or concealment of
evidence; and (2) resisting or obstructing officers. The jury found Padgett not guilty of battery,
but found Padgett guilty of the lesser-included offense of fighting, M § 245-10-1-7.
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               1.     On or about January 12, 2016,
               2.     in the state of Idaho
               3.     the defendant Dean Padgett committed a battery
               4.     upon [the officer]
               5.     by willfully and unlawfully using force and or violence upon [the
                      officer], and
              6.      at the time of the offense, [the officer] was a Boise Police Officer,
                      and
              7.      the defendant knew or had reason to know [the officer] was a
                      Boise Police Officer.
              If any of the above has not been proven beyond a reasonable doubt, you
       must find the defendant not guilty. If each of the above has been proven beyond a
       reasonable doubt, then you must find the defendant guilty.
Neither party objected to this proposed jury instruction. However, as Padgett asserts on appeal,
the jury instruction did not accurately correspond to Idaho Criminal Jury Instruction 1212I,
which reads:
               In order for the defendant to be guilty of Battery, the state must prove each
       of the following:
               1.     On or about [date]
               2.     in the state of Idaho
               3.     the defendant [name] committed a battery,
               4.     upon [name of victim]
               [5.    by (description of conduct alleged in the charging document)]
               6.     at the time of the offense, [name of victim] was a former or present
                      [peace officer] [sheriff] [police officer] [and]
               [7.    [name of defendant] committed the offense because of [[name of
                      victim]’s exercise of official duties] [or] [[name of victim]’s
                      former or present official status].]
                                                [or]
               [7.    the offense was committed while [name of victim] was engaged in
                      the performance of [his] [her] duties, and
               8.     [name of defendant] knew or reasonably should have known that
                      [name of victim] was a [name of position].]
               If any of the above has not been proven beyond a reasonable doubt, you
       must find the defendant not guilty. If each of the above has been proven beyond a
       reasonable doubt, then you must find the defendant guilty.
An omission occurs at subsection 7, as the district court did not instruct the jury that it had to
find either that: (1) Padgett committed the offense because of the officer’s exercise of official
duties or the officer’s former or present official status; or (2) the offense was committed while
the officer was engaged in the performance of his duties.
       Padgett claims the incorrect jury instruction relieved the State of its burden to prove that
the officer was engaged in the performance of his duties, and that such a mistake amounts to
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fundamental error. Specifically, Padgett argues the district court erred when it failed to properly
instruct the jury as to the elements of battery on a law enforcement officer. 3 Padgett admits he
failed to object to the instructions at trial, and thus, the error must be reviewed under the
fundamental error test articulated in Perry.
       Generally, issues not raised below may not be considered for the first time on appeal.
State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Idaho decisional law, however,
has long allowed appellate courts to consider a claim of error to which no objection was made
below if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho
559, 571, 165 P.3d 273, 285 (2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262
(1971). In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court
abandoned the definitions it had previously utilized to describe what may constitute fundamental
error. Perry, 150 Idaho at 224, 245 P.3d at 976. The Perry Court held that an appellate court
should reverse an unobjected-to error when the defendant persuades the court that the alleged
error: (1) violates one or more of the defendant’s unwaived constitutional rights; (2) is clear or
obvious without the need for reference to any additional information not contained in the
appellate record; and (3) affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at
978.
       Padgett also asserts the jury should have been able to decide whether the officer used
excessive force. Padgett concludes the facts would have supported an excessive force instruction
had trial counsel requested one, and the outcome of the trial would have been different with this
additional instruction. We are not persuaded by Padgett’s argument in this regard. First, the
issue on appeal is whether it was fundamental error to provide an incomplete jury instruction
regarding battery on a law enforcement officer. Padgett’s appellate arguments fail to explain
how the jury instruction at issue affected the trial proceedings, which is fatal to Padgett’s claim.
See State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996). It is not enough that Padgett

3
         We direct our analysis to Padgett’s primary claim on appeal. However, Padgett asserts
error involving a second jury instruction, which provided the definition of battery. According to
Padgett, Jury Instruction 14 could have misled the jury because it was listed on the same page as
the instruction for the elements of felony battery on a law enforcement officer. We are not
persuaded by this argument on appeal for two reasons. First, Padgett fails to explain why the
jury could have been confused by the definition of battery and how the instruction affected the
trial’s outcome. Second, Padgett fails to provide authority to support his argument on appeal.
We therefore direct our analysis to Padgett’s primary claim on appeal.
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believes an additional jury instruction should have been given by the district court, since
excessive force is not at issue on appeal.
       Furthermore, the third prong of the Perry analysis requires the appellant to show that
where the jury instructions improperly omitted one element of a charged offense, the error was
not harmless. Perry, 150 Idaho at 224, 245 P.3d at 976. In addressing the harmless error test,
the Perry Court explicitly held, “where the evidence supporting a finding on the omitted element
is overwhelming and uncontroverted, so that no rational jury could have found that the state
failed to prove that element, the constitutional violation may be deemed harmless.” Id. This
holding is reiterated later in the Perry opinion.     Id. at 228, 245 P.3d at 980.       Here, the
                                    4
instructional error was harmless.
       The officers testified that they arrived at the scene in marked police cars and wore
uniforms that identified them as police officers. One officer testified that Padgett refused to
comply with various commands, appeared to manipulate something in his lap, and then
swallowed what looked like a baggie containing a white crystal substance. When the officer told
Padgett to get out of the vehicle, Padgett refused to follow the officer’s demands. The officer
then tried to remove Padgett from the vehicle, at which point, Padgett attempted to avoid the
officer, flailed around, and struck the officer several times.      Although Padgett claims the
officer’s actions were excessive and not in the exercise of the officer’s official duties, Padgett
focuses only on the events that took place after Padgett struck the officer. The relevant question,
however, is whether the officer was engaged in his official duties at the time Padgett struck the
officer. Padgett provides no argument that the officer’s attempt to remove Padgett from the
vehicle was outside the scope of his lawful duties. There is overwhelming evidence the officer
was either exercising his official duties or engaged in the performance of his duties at the time
Padgett struck the officer, and no reasonable jury could have found otherwise. As such, Padgett
has failed to establish any prejudice or fundamental error regarding the elements instruction.




4
       Because Padgett fails to establish that the incorrect jury instruction affected the trial
proceedings, we need not address the first two prongs of the Perry analysis.
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                                                 IV.
                                          CONCLUSION
       The district court’s jury instructions did not amount to fundamental error because Padgett
had failed to establish that the incorrect jury instruction affected the trial proceedings. Therefore,
we affirm the district court’s judgment of conviction.
       Judge GUTIERREZ and Judge LORELLO CONCUR.




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