               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42397

STATE OF IDAHO,                                ) 2015 Opinion No. 35
                                               )
       Plaintiff-Respondent,                   ) Filed: June 19, 2015
                                               )
v.                                             ) Stephen W. Kenyon, Clerk
                                               )
KURTIS THOMAS KELLY,                           )
                                               )
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Richard S. Christensen, District Judge.

       Judgment of conviction for battery on a law enforcement officer, affirmed.

       John M. Adams, Kootenai County Public Defender; Jay Logsdon, Deputy
       Appellate Public Defender, Coeur d’Alene, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       Kurtis Thomas Kelly appeals from his judgment of conviction for battery on a law
enforcement officer. For the reasons set forth below, we affirm.
                                               I.
                                 FACTS AND PROCEDURE
       The basic facts in this case are undisputed. A uniformed officer was dispatched around
1:30 a.m. to a bar in response to a call reporting a fight. The officer saw Kelly sitting on the
sidewalk in handcuffs. The officer had the handcuffs removed and questioned Kelly. The
officer determined that Kelly was intoxicated and needed to go home. One of his friends, who
was sober, offered to drive Kelly home. The friend and Kelly’s wife asked the officer for
assistance in getting Kelly into the friend’s car because Kelly was too intoxicated to walk. On



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their way to the car, Kelly complained about pain in his arm and stated that he did not want to go
to jail. While being assisted into the car, Kelly stood up and punched the officer in the face with
a closed fist.
        Kelly was arrested and charged with battery on a law enforcement officer. I.C. §§ 18-
903, 18-915(3). He moved to dismiss the charge, arguing that the state failed to allege facts
which established that the officer was exercising an official duty when he was struck. The
district court denied the motion.      After the state rested at trial, Kelly moved for an acquittal,
again arguing that the state failed to meet its burden of proving what specific official duty the
officer was performing at the time he was struck. The motion was denied. Kelly now appeals,
alleging that those motions were improperly denied and the district court made a number of
errors at trial.
                                                   II.
                                              ANALYSIS
        While Kelly raises many issues on appeal, they can be consolidated into two claims of
error by the district court. 1 First, Kelly alleges that the district court erred in failing to grant his
motion to dismiss and his motion for an acquittal because the state failed to provide evidence that
the officer was performing his official duty at the time he was punched. Second, Kelly argues
that the district court erred in instructing the jury.
A.      Officer’s Duties
        Kelly argues that I.C. § 18-915(3) requires the state to prove what specific official duty
the officer was undertaking at the time of the incident. Kelly alleges that, because the state failed



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        Kelly’s brief listed the following issues on appeal: whether the state must indicate in the
information the duty in which the officer was engaged or for which he was struck; whether the
state must present evidence as to the duty in which the officer was engaged or for which he was
struck; whether the elements instructions must indicate the duty in which the officer was engaged
or for which he was struck that the jury is to find; whether the officer had any duties within the
meaning of I.C. § 18-915; whether the judiciary may create the duties of the police for purposes
of I.C. § 18-915; whether I.C. § 18-116 is unconstitutional under Article I, § 13 of the Idaho
Constitution insofar as it reduces the state’s burden to prove particular crimes in cases involving
specific intent and voluntary intoxication; whether I.C. § 18-116 also reduces the defense’s
burden to present a self-defense claim; and whether battery on certain personnel is a lesser-
included offense of battery on a law enforcement officer.

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to make the requisite showing, the district court erred in denying his motion to dismiss and his
motion for an acquittal. Idaho Code Section 18-915(3) provides:
               For committing a violation of the provisions of section 18-903, Idaho
       Code, except unlawful touching as described in section 18-903(b), Idaho Code,
       against the person of a former or present peace officer, sheriff or police officer:
               (a)    Because of the exercise of official duty or because of the victim’s
               former or present official status; or
               (b)    While the victim is engaged in the performance of his duties and
               the person committing the offense knows or reasonably should know that
               such victim is a peace officer, sheriff or police officer;
       the offense shall be a felony punishable by imprisonment in a correctional facility
       for a period of not more than five (5) years, and said sentence shall be served
       consecutively to any sentence being currently served.

Idaho Code Section 18-903 defines battery as follows:
       A battery is any:
              (a)     Willful and unlawful use of force or violence upon the person of
              another; or
              (b)     Actual, intentional and unlawful touching or striking of another
              person against the will of the other; or
              (c)     Unlawfully and intentionally causing bodily harm to an individual.

       It is not disputed that Kelly punched the police officer. The issue is whether the state was
required to prove that the officer was engaged in the performance of an official duty and whether
the state met that burden. This is an issue of statutory interpretation. This Court exercises free
review over the application and construction of statutes. State v. Reyes, 139 Idaho 502, 505, 80
P.3d 1103, 1106 (Ct. App. 2003). Where the language of a statute is plain and unambiguous, this
Court must give effect to the statute as written, without engaging in statutory construction. State
v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 Idaho 387,
389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be given its plain, obvious,
and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the language is clear and
unambiguous, there is no occasion for the court to resort to legislative history or rules of
statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d at 67.
       The language of I.C. § 18-915(3) is plain and unambiguous and, therefore, the statute is
applied by giving the language its plain, obvious, and rational meaning. Under subsection (a),
the state must show a causal connection between the battery and the officer’s official duty or



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status. Accordingly, a person can be guilty of battery upon an officer if the person batters a
current or former officer because of the performance of his or her official duty or if the person
batters a current or former officer because of his or her official status. On the other hand, under
subsection (b) the state is not required to show a causal connection, but must show that the
officer was performing his or her duty and that the individual who committed the battery knew or
should have known that the person was an officer. The statute does not require that the officer
be engaged in any specific duty--only that he be engaged in the performance of his duties.
       In charging Kelly under I.C. § 18-915(3), the state charged Kelly in the alternative, under
subsections (a) or (b). Under subsection (a), it was necessary for the state to show that the
officer’s performance of his official duty or status was the reason Kelly battered the officer. On
the other hand, in order for Kelly to be found guilty under subsection (b), the state had to prove
that the officer was performing his duty at the time he was struck and that Kelly knew or should
have known he was an officer. The state provided evidence, through the testimony of the officer
who was punched, that the officer was dispatched to the bar in response to a call reporting a fight
at the bar. While at the bar, the officer was asked to assist Kelly into his friend’s vehicle so she
could drive Kelly home. Without question, an officer’s duties include responding to calls for
assistance and helping citizens. See State v. Wixom, 130 Idaho 752, 754, 947 P.2d 1000, 1002
(1997) (The community caretaking function arises from the duty of police officers to help
citizens in need of assistance.). Thus, it follows that the state sufficiently alleged and provided
evidence to meet its burden of establishing that the officer was engaged in the performance of his
duties when he tried to assist Kelly under both subsections (a) and (b).
B.     Jury Instructions
       Kelly alleges the district court erred in instructing the jury. 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).
       1.      Due process
       Kelly argues that his level of intoxication rendered him incapable of forming the requisite
mens rea and, therefore, the district court erred in instructing the jury that it could only consider


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Kelly’s intoxication if it found the intoxication to be involuntary. Kelly’s intoxication was
admittedly voluntary. Kelly argues that I.C. § 18-116 is unconstitutional because it violates due
process under the Idaho Constitution. The statute at issue, I.C. § 18-116, states:
               A person who is in an intoxicated condition is criminally responsible for
       his conduct and an intoxicated condition is not a defense to any offense and may
       not be taken into consideration in determining the existence of a mental state
       which is an element of the offense unless the defendant proves that he did not
       know that it was an intoxicating substance when he consumed, smoked, sniffed,
       injected or otherwise ingested the substance causing the condition.

       The statute plainly does not permit those who commit crimes while voluntarily
intoxicated to avoid culpability because of a diminished mental capacity. In the context of the
U.S. Constitution, the United States Supreme Court reviewed a Montana statute which
disallowed consideration of voluntary intoxication when a defendant’s state of mind was at issue.
See Montana v. Egelhoff, 518 U.S. 37, 56 (1996). The Supreme Court held that, “nothing in the
Due Process Clause prevents [the citizens of Montana] from doing so.” Id. Kelly has provided
no authority to suggest that the Idaho Constitution should be treated differently than the United
States Constitution and his argument to that effect is unpersuasive. Accordingly, we follow the
Supreme Court and hold that I.C. § 18-116 does not violate due process under the Idaho
Constitution.
       2.       Lesser-included offense
       Kelly alleges that battery on certain personnel is a lesser-included offense of battery on a
police officer and, therefore, upon request the district court was required to instruct the jury on
both offenses. Error is not reversible unless it is prejudicial. State v. Stoddard, 105 Idaho 169,
171, 667 P.2d 272, 274 (Ct. App. 1983). With limited exceptions, even constitutional error is not
necessarily prejudicial error. Id. Thus, we examine whether the alleged error complained of in
the present case was harmless. See State v. Lopez, 141 Idaho 575, 578, 114 P.3d 133, 136 (Ct.
App. 2005).      Assuming, arguendo, that Kelly was entitled to a lesser-included offense
instruction, the failure to give one would constitute harmless error. The Idaho Supreme Court
has held that failure to give the lesser-included offense instruction, when a person is found guilty
of the greater offense, is harmless error. State v. Joy, 155 Idaho 1, 7, 304 P.3d 276, 282 (2013).
In this case, even if the district court erred in failing to give the lesser-included offense jury



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instruction, the error was harmless because Kelly was found guilty of the greater offense--battery
on a law enforcement officer. Accordingly, the error would not be reversible.
       3.      Self-defense
       Kelly alleges that the district court erred in failing to give his proposed jury instruction on
self-defense. A defendant is entitled to have the jury instructed on every defense or theory of
defense having any support in the evidence. State v. Hansen, 133 Idaho 323, 328, 986 P.2d 346,
351 (Ct. App. 1999). However, requested jury instructions should not be given if they lack
support in the facts of the case or are erroneous statements of the law. State v. Babb, 125 Idaho
934, 941, 877 P.2d 905, 912 (1994); State v. Bronnenberg, 124 Idaho 67, 71, 856 P.2d 104, 108
(Ct. App. 1993).
       Idaho Code Section 19-2132(a) requires that the trial court must provide to the jury being
charged “all matters of law necessary for their information” and must give a requested jury
instruction if it determines that instruction to be correct and pertinent. Under a four-part test, a
requested instruction must be given where: (1) it properly states the governing law; (2) a
reasonable view of the evidence would support the defendant’s legal theory; (3) it is not
addressed adequately by other jury instructions; and (4) it does not constitute an impermissible
comment as to the evidence. State v. Fetterly, 126 Idaho 475, 476-77, 886 P.2d 780, 781-82 (Ct.
App. 1994); see also State v. Evans, 119 Idaho 383, 385, 807 P.2d 62, 64 (Ct. App. 1991). To
meet the second prong of this test, the defendant must present at least some evidence supporting
his or her theory, and any support will suffice as long as his or her theory comports with a
reasonable view of the evidence. Fetterly, 126 Idaho at 476-77, 886 P.2d at 781-82; State v.
Kodesh, 122 Idaho 756, 758, 838 P.2d 885, 887 (Ct. App. 1992). In other words, a defendant
must present facts to support each element of a prima facie case for each defense. State v. Camp,
134 Idaho 662, 665-66, 8 P.3d 657, 660-61 (Ct. App. 2000). If the defendant fails to provide
evidence supporting any one of the necessary elements of a defense, the defendant has failed to
meet his or her burden and is not entitled to have the jury instructed on that defense.
       Self-defense is recognized in Idaho. See State v. Woodward, 58 Idaho 385, 394, 74 P.2d
92, 96 (1937); see generally I.C. §§ 19-201, 19-202, and 19-202A.              Idaho Criminal Jury
Instruction 1517 enumerates what must be proven to find that a defendant acted in self-defense:
(1) the defendant must have believed that the defendant was in imminent danger of bodily harm;


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(2) the defendant must have believed that the action the defendant took was necessary to save the
defendant from the danger presented; (3) a reasonable person, under similar circumstances,
would have believed that the defendant was in imminent danger of bodily injury and believed
that the action taken was necessary; and (4) the defendant must have acted only in response to
that danger and not for some other motivation. The burden of production is on the defendant
(who must raise self-defense) to make a prima facie defense. Camp, 134 Idaho at 666 n.2, 8 P.3d
at 661 n.2.
        Kelly did not present evidence at trial sufficient to require the district court to give his
self-defense jury instruction. Specifically, there is no view of the evidence that would have
allowed the jury to find that Kelly satisfied the third element of self-defense--that a reasonable
person, under similar circumstances, would have believed that he or she was in imminent danger
of bodily injury. The record, including video images from the camera worn by the officer, shows
the officer being calm and helpful. There was no indication that a reasonable person under these
circumstances would have believed that he or she was in imminent danger of bodily injury.
Thus, Kelly failed to make a prima facie showing of facts to support each element of self-
defense. Therefore, the district court did not err in refusing to instruct the jury on self-defense.
        4.      Elements of crime
        Kelly asserts that the elements of battery on a law enforcement officer include a specific
duty in which the officer was engaged or for which the officer was struck. As noted above, the
statute only requires proof that the officer was engaged in the performance of his duties. The
district court did not err in failing to instruct the jury in this respect.
                                                    III.
                                            CONCLUSION
        The district court did not err in denying Kelly’s motion to dismiss or his motion for a
directed verdict because the state met its burden of showing that the officer was performing his
duty at the time he was struck. In addition, Kelly has not shown that the district court erred in
instructing the jury. Therefore, Kelly’s judgment of conviction for battery on a law enforcement
officer is affirmed.
        Judge LANSING and Judge GRATTON, CONCUR.




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