               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45215

STATE OF IDAHO,                                )
                                               )    Filed: December 18, 2018
       Plaintiff-Respondent,                   )
                                               )    Karel A. Lehrman, Clerk
v.                                             )
                                               )    THIS IS AN UNPUBLISHED
JOHN ANDREW CRAVEN, SR.,                       )    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. Nancy Baskin, District Judge.

       Judgment of conviction, vacated and case remanded.

       Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       John Andrew Craven, Sr., appeals from his judgment of conviction for failure to register
as a sex offender. We vacate the judgment of conviction and remand for further proceedings.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Craven was previously convicted of rape and required, by his judgment of conviction, to
register as a sex offender under the Sex Offender Registration Act. In December of 2014,
Craven resided in a Boise motel and properly registered his address with the Idaho Sex Offender
Registry as that of the motel (including his motel room number). In August 2015, Craven
checked out of the motel as a result of financial difficulty. Conflicting testimony at trial was
presented regarding Craven’s residence after he checked out of the motel. At trial, Craven
contended that he moved from the motel room to his vehicle in the motel parking lot. It is
undisputed that Craven did not notify the Ada County Sheriff’s Office of any change in his

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address after he checked out of the motel room. Subsequently, Craven was arrested on a separate
parole offense and charged with failure to register as a sex offender under Idaho Code §§
18-8309, 18-8311, and a persistent violator enhancement, I.C. § 19-2514. At trial, the jury
instructions failed to include the knowledge element of the offense. The jury convicted Craven
of failing to register as a sex offender. Subsequently, Craven pled guilty to the State’s charge of
being a persistent violator. The district court imposed a sentence of eighteen years with three
years determinate. Craven timely appeals.
                                                II.
                                           ANALYSIS
       On appeal, Craven argues that the elements instruction issued by the district court
violated Craven’s right to due process and constitutes fundamental error. The State argues that
Craven’s failure to object to the elements instruction at trial bars his right to challenge the
instruction under both the invited error doctrine and Idaho Criminal Rule 30(b).            In the
alternative, the State asserts that Craven has failed to show that the absence of the knowledge
element in the elements instruction rises to the level of fundamental error. Whether a 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).
       Craven was convicted under I.C. § 18-8311 which states, in part, “An offender subject to
registration who knowingly fails to register, verify his address, or provide any information or
notice as required by this chapter shall be guilty of a felony.” The State proposed the following
elements instruction, based on Idaho Criminal Jury Instruction 985:
                                  INSTRUCTION NO. 13
            In order for the defendant to be guilty of FAILURE TO REGISTER AS A
       SEX OFFENDER, the State must prove each of the following:
            1.     On or after the 19th day of August, 2015;
            2.     in the State of Idaho;
            3.     the defendant, JOHN ANDREW CRAVEN SR., failed to register a
                   change in his street address or actual address;
            4.     in person at the office of the sheriff of the county in which the
                   defendant resided or was temporarily domiciled;
            5.     within two (2) working days after the change; and
            6.     the defendant was at this time required to register under the Sex
                   Offender Registration Act.

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              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.
       Craven did not object to the proposed instruction, and the instruction was given to the
jury. Following this instruction, the jury proceeded to deliberation and sent a question to the
court: “What is the legal definition in Idaho of ‘residence,’ and ‘mailing address,’ and is room
number or apartment number a requirement of/required component of either residence or mailing
address?” The district court provided the following written response to the question:
               For purposes of this case, “residence” means the offender’s present place
       of abode. The term mailing address is not defined by the statute. Terms which
       are of common usage and are sufficiently generally understood need not be
       further defined by the Court.
               The elements you must find in this case are set forth in the jury
       instructions previously provided by the Court.
       The pattern Idaho Criminal Jury Instruction given at trial does not include the knowledge
element of the offense. Therefore, Craven claims that this instruction relieved the State of its
burden to prove that Craven had the requisite knowledge to commit the charged offense, and thus
constitutes fundamental error.
A.     Invited Error Doctrine
       First, the State argues that Craven’s claim is barred by the invited error doctrine. The
doctrine of invited error applies to estop a party from asserting an error when his or her own
conduct induces the commission of the error. State v. Atkinson, 124 Idaho 816, 819, 864 P.2d
654, 657 (Ct. App. 1993). The State contends that because Craven affirmatively stated “no
objection” to the elements instruction when he was solicited to give input, and then affirmatively
agreed with the district court’s proposed response to the jury’s question which reaffirmed the
elements instruction, this amounts to invited error. We disagree. Craven did not request nor
urge the district court to give the elements instruction he now challenges on appeal. The State’s
argument puts great weight on Craven’s counsel “specifically requesting the court give an
additional instruction, in response to the jury questions.” At trial, Craven’s counsel stated, “We
would request that be given as stated,” after the district court explained how it was planning on
answering the jury’s question. Craven’s counsel did not play an important role in giving, let
alone reaffirming, the elements instruction. Counsel failed to register an objection to the court’s
instructions. Because failure to object to a jury instruction does not amount to invited error,


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Craven’s claim is not barred by this doctrine. See State v. Perry, 150 Idaho 209, 224, 245 P.3d
961, 976 (2010).
B.     Idaho Criminal Rule 30(b)
       Second, the State argues that Craven is procedurally barred from appealing under Idaho
Criminal Rule 30(b). The rule states, in part, “No party may assign as error the giving of or
failure to give an instruction unless the party objects to the action before the jury retires to
consider its verdict.”   I.C.R. 30(b)(4).    Consequently, the State is correct that Rule 30(b)
precludes Craven’s challenge to the jury instruction for the first time on appeal. However, under
the Supreme Court’s holding in State v. Hall, 161 Idaho 413, 387 P.3d 81 (2016), a party that
fails to object to a jury instruction at trial may nonetheless challenge the instruction on appeal
under the fundamental error doctrine. Id. at 422, 387 P.3d at 90. We therefore conclude that,
although under Rule 30(b) he cannot assign error to the jury instruction, Craven can raise the
issue as a claim of fundamental error.
C.     Fundamental Error
       Craven argues that, although he did not object at trial, the district court erred when it
failed to properly instruct the jury as to the knowledge element of the offense as set forth in I.C.
§ 18-8311(1), and 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 Perry, the Idaho Supreme Court abandoned the definitions it had previously utilized
to describe what may constitute fundamental error. Perry, 150 Idaho at 220-27, 245 P.3d at
972-79. 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.




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       1.      The alleged error violated an unwaived constitutional right
       Craven argues that the elements instruction violated his due process right because it
relieved the State from proving that Craven knowingly failed to register. The United States
Supreme Court has held that, in criminal trials, “the State must prove every element of the
offense, and a jury instruction violates due process if it fails to give effect to that requirement.”
Middleton v. McNeil, 541 U.S. 433, 437 (2004). In cases where the jury instructions omit an
essential element of the crime, the defendant’s right to due process is violated.           State v.
Anderson, 144 Idaho 743, 749, 170 P.3d 886, 892 (2007). The State acknowledged that a
constitutional issue is present because the error relieved the State of its burden to prove an
element of the offense, but nonetheless argues that Craven waived any claim by stating that there
was no objection to the court’s instructions.
       The State argues that stating no objection amounts to a waiver of the constitutional right.
The State cites no authority for this proposition. A failure to object is simply not the type of
waiver of a constitutional right contemplated by Perry.
       Here, the State does not dispute that the elements instruction provided at trial was
incomplete. The elements instruction failed to include the knowledge requirement of the offense
which is specifically set forth in I.C. § 18-8311(1). Therefore, the State was relieved from
proving that Craven “knowingly failed to register” as an element of the offense. Accordingly,
Craven’s right to due process was violated and the first prong of Perry is satisfied.
       2.      The alleged error is clear
       The second prong of Perry requires that the error is clear or obvious without need for
reference to additional information not contained in the appellate record.               Under the
circumstances of this case, the second prong of Perry is established. It is clear from the record
that the presumptively correct 1 pattern jury instruction is wrong as it omits an essential element
of I.C. § 18-9311 germane to the offense and defenses raised thereto.
       3.      The alleged error affected the outcome of trial proceedings
       Craven argues that he was harmed by the error. Conversely, the State maintains that the
inclusion of the knowledge element would not have helped Craven below. 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 209,

1
       State v. Reid, 151 Idaho 80, 86, 253 P.3d 754, 760 (Ct. App. 2011).
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224, 245 P.3d 961, 976. In addressing the harmless error test, the Perry Court explicitly held,
“[W]here 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.
        Here, the instructional error was not harmless. Evidence supporting a finding that Craven
“knowingly failed to register” is not overwhelming and uncontroverted. Craven argued at trial
and now on appeal, that he did not know that moving from the motel room to the parking lot was
a change of residence which would obligate him to update his address. The State argues that the
missing element is harmless because had the knowledge element been implemented, it would
apply specifically to 13.3 of the instruction, and thus require that the jury find only that Craven
“knowingly failed to register.” The State asserts that the knowledge element does not modify
13.6 of the instruction, and thus does not require the jury to find that Craven knew that he
changed residences. We do not find that the knowledge element of the offense is mutually
exclusive to 13.3 of the instruction. If, as Craven asserted at trial and argues on appeal, he did
not know that he had to notify officials when he moved from inside the motel to the parking lot
under 13.6, then Craven could have asserted a factual tie to the requirement that he knowingly
failed to register under 13.3 of the instruction. In addition, the burden is on the State to prove
every element of the offense beyond a reasonable doubt at trial.           Because the elements
instruction did not require the jury to find any knowledge on the part of Craven, the instruction
essentially set forth a strict liability crime. Had the jury been properly instructed, there is a
reasonable likelihood that the result would have been different. For the reasons set forth above,
Craven has carried his burden on every prong of the Perry analysis and use of the pattern
elements instruction constitutes fundamental error.
                                                  III.
                                           CONCLUSION
        The district court’s failure to instruct the jury regarding the knowledge element of the
offense amounts to fundamental error. We vacate Craven’s judgment of conviction and remand
this case to the district court for further proceedings.
        Judge GUTIERREZ and Judge LORELLO CONCUR.




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