               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43259

STATE OF IDAHO,                                 ) 2016 Opinion No. 79
                                                )
       Plaintiff-Respondent,                    ) Filed: December 8, 2016
                                                )
v.                                              ) Stephen W. Kenyon, Clerk
                                                )
AMAN GAS,                                       )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Sixth Judicial District, State of Idaho,
       Bannock County. Hon. Stephen S. Dunn, District Judge.

       Judgment and conviction for battery with the intent to commit rape, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Aman Gas appeals from his judgment of conviction for battery with the intent to commit
rape. Idaho Code § 18-911. On appeal, Gas asserts the district court erred when it instructed the
jury on the crime of battery with the intent to commit rape as an included offense of rape.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       The victim in this case, R.G., fell asleep on a couch at her friend’s house after a night of
drinking. R.G. testified that while she was asleep someone, later identified as Gas, inserted his
fingers into her rectum and her mouth. R.G. testified that she initially thought she was dreaming
but woke up when Gas attempted to penetrate her rectum with his penis twice, and did penetrate
her on a third attempt. Shortly thereafter, R.G. telephoned her father and a friend, who both
arrived to pick her up. She spoke to the police and was taken to a medical center for an


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examination. R.G. indicated the rape occurred between 1:30 a.m. and 2:00 a.m. The nurse at the
hospital testified that R.G. had three separate tears on her anus.
       Gas was also interviewed by police. He claimed he had been at a bar from approximately
11:00 p.m. to 3:00 a.m. and when he returned to the residence, he did not have any physical
contact with R.G. Gas’s defense at trial was an alibi defense, as he claimed the rape occurred
while he was at the bar. Gas was also taken to a medical center where he was examined and
DNA samples were taken. A DNA analyst later testified that she found DNA matching R.G.’s
under Gas’s fingernails and R.G. was a potential contributor to the DNA found on Gas’s penile
swab. DNA from R.G.’s rectum was not tested due to an insufficient amount.
       Gas was charged with rape, Idaho Code § 18-6101(6)(a) and/or (b).1 Gas objected to the
district court’s proposed jury instructions, which included a lesser included offense: battery with
the intent to commit rape. Gas objected on the grounds that the act was one consummated event,
that lesser included offenses were cumulative, it was prejudicial and would mislead the jury, and
would allow the State multiple options to try and find Gas guilty of a crime. He argued that
evidence had come in that the act, according to R.G., was allegedly completed, so there should
not be a lesser included offense because the act was completed in one continuous event. The
State argued the instruction of battery with the intent to commit rape was necessary because the
fourth element of rape under subsection (6) is that the victim is “unconscious of the nature of the
act.” I.C. § 18-6101(6). This was a concern as R.G. had testified about being in a dreamlike
state when Gas tried to penetrate her twice; however, R.G. asserted that on the third attempt she
woke up. As a result, the jury could reasonably find that she was no longer unconscious of the
nature of the act and therefore conclude that the State had not proved, beyond a reasonable
doubt, the fourth element of rape. The court held that battery with intent to commit rape is an
included offense of the charge of rape and that the jury should be instructed on the included
offense. It was persuaded by the State’s argument and also suggested there was evidence from
which the jury could determine that Gas attempted to penetrate but was unsuccessful.
       The jury acquitted Gas on the charge of rape, but found him guilty of battery with the
intent to commit rape. Gas filed a motion for a new trial on a number of issues, including the

1
       At the time the district court entered its judgment, the statute read as provided. Since that
time, the statute was amended effective July 1, 2016. Subsection (6) was reassigned as
subsection (7) and “she” was amended to “the victim.”


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jury instruction on battery with the intent to commit rape. In denying the motion, the district
court stated that “Idaho Criminal Jury Instruction 970 states: ‘[B]attery with intent to commit
rape is an included offense of rape and can be shown by proof of all the elements of rape except
penetration.’” It also rejected Gas’s assertions that the instruction created a variance between the
jury instruction and the charging document. Gas was sentenced to ten years with four years
determinate. He timely appeals.
                                                II.
                                           ANALYSIS
       Gas argues that his conviction should be vacated due to the district court’s error in
instructing the jury on the crime of battery with the intent to commit rape. 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). Gas
specifically argues the district court erred because battery with intent to commit rape is not an
included offense of rape where the victim is unconscious, and the instruction on battery with
intent to commit rape created a variance with the charging document. The State asserts there
was no variance and even if the victim is unconscious, rape requires penetration which is a
battery, and therefore, the elements of battery with the intent to commit rape are included in a
charge of rape.
A.     Lesser Included Offense
       There are two theories under which a particular offense may be determined to be a lesser
included offense of the charged offense: the statutory theory and the pleading theory. State v.
Weatherly, 160 Idaho 302, 305, 371 P.3d 815, 818 (Ct. App. 2016). Under the statutory theory,
“one offense is not considered a lesser included of another unless it is necessarily so under the
statutory definition of the crime.” Id. (quoting State v. Thompson, 101 Idaho 430, 433, 614 P.2d
970, 973 (1980)). The test originated in Blockburger v. United States, 284 U.S. 299 (1932). “An
offense will be deemed to be a lesser included offense of another, greater offense, if all the
elements required to sustain a conviction of the lesser included offense are included within the
elements needed to sustain a conviction of the greater offense.” State v. McCormick, 100 Idaho



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111, 114, 594 P.2d 149, 152 (1979). The State charged Gas with rape, I.C. § 18-6101(6)(a)
and/or (b) which defines rape as follows:
       (6) Where she is at the time unconscious of the nature of the act. As used in this
       section, “unconscious of the nature of the act” means incapable of resisting
       because the victim meets one (1) of the following conditions:
               (a) Was unconscious or asleep;
               (b) Was not aware, knowing, perceiving, or cognizant that the act
               occurred.
       Battery with the intent to commit a serious felony is defined as, “Any battery committed
with the intent to commit murder, rape, the infamous crime against nature, mayhem, robbery or
lewd and lascivious conduct with a minor child is a battery with the intent to commit a serious
felony.” I.C. § 18-911. Gas argues that battery with the intent to commit rape is not a lesser
included offense of rape where the victim is unconscious of the nature of the act, and that battery
with intent to commit rape requires a battery that is separate from penetration. He cites State v.
Jones, 154 Idaho 412, 299 P.3d 219 (2013) for the holding that “some force beyond that which is
inherent in the sexual act is required for a charge of forcible rape.” Id. at 422, 299 P.3d at 229.
The Idaho Supreme Court reasoned, “Were we to construe ‘force’ as encompassing the act of
penetration itself, it would effectively render the force element moot. Force would always be
present and never have to be proven, so long as there was sexual intercourse.” Id. However,
Jones is easily distinguished from the present facts as it dealt with the charge of forcible rape,
which is not the situation here. The Jones Court did not hold that battery with the intent to
commit rape requires a battery distinct from penetration. The statute subsection relating to
forcible rape specifically requires that the “victim resists but the resistance is overcome by force
or violence.” I.C. § 18-6101(3)2 (emphasis added). Therefore, subsection (3) requires a force
beyond the actual penetration, but it does not apply here as Gas was charged with rape under
subsection (6).
       Battery is defined as:
       (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.


2
       The statute was amended effective July 1, 2010, and subsection (3) was reassigned as
subsection (4); however, there was no change in the wording of the subsection.


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I.C. § 18-903. While rape requires actual penetration, the physical contact short of penetration
would constitute a battery under I.C. § 18-903. Penile touching that succeeds or fails to succeed
in penetration is a battery. It would be impossible to commit a rape without committing a
battery; therefore, battery with the intent to commit rape is a lesser included offense under the
statutory theory.
       This is further supported by State v. Bolton, 119 Idaho 846, 810 P.2d 1132 (Ct. App.
1991), in which this Court held: “assault with intent to commit rape or battery with intent to
commit rape can be shown to be a lesser included offense only by proof of all the elements of
rape, except penetration.”     Id. at 850, 810 P.2d at 1136.     Similarly, Idaho Criminal Jury
Instruction 970 provides: “Assault with intent to commit rape or battery with intent to commit
rape is an included offense of rape and can be shown by proof of all the elements of rape except
penetration. State v. Bolton, 119 Idaho 846, 810 P.2d 1132 (Ct. App. 1991); see ICJI 225.”
       Battery with the intent to commit rape is also an included offense under the “pleading
theory.” The pleading theory holds “that an offense is an included offense if it is alleged in the
information [or indictment] as a means or element of the commission of the higher offense.”
State v. Flegel, 151 Idaho 525, 529, 261 P.3d 519, 523 (2011) (quoting Sivak v. State, 112 Idaho
197, 211, 731 P.2d 192, 206 (1986); State v. Anderson, 82 Idaho 293, 301, 352 P.2d 972, 977
(1960)). The information alleged that Gas “did penetrate with his penis the anal opening of a
female person, [R.G.], who at the time was unconscious of the nature of the act and this was
known to the defendant.” As noted above, a penetration by the penis requires a battery and thus,
battery with the intent to commit rape was the means or element necessary to the commission of
the charged rape. The district court did not err in finding that battery with intent to commit rape
is a lesser included offense of the crime of rape.
B.     Variance
       Gas also asserts that the jury instruction on battery with intent to commit rape created a
variance between the charging document. The existence of an impermissible variance between a
charging instrument and the jury instructions is a question of law over which we exercise free
review. State v. Sherrod, 131 Idaho 56, 57, 951 P.2d 1283, 1284 (Ct. App. 1998). Our task in
resolving the issue presented is two-fold. First, we must determine whether there is a variance
between the information used to charge Gas with rape and the instructions presented to the jury.
See State v. Brazil, 136 Idaho 327, 329, 33 P.3d 218, 220 (Ct. App. 2001). Second, if a variance

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exists, we must examine whether it rises to the level of prejudicial error requiring reversal of the
conviction. Id. A variance between a charging instrument and a jury instruction necessitates
reversal only when it deprives the defendant of the right to fair notice or leaves him or her open
to the risk of double jeopardy. State v. Windsor, 110 Idaho 410, 417-18, 716 P.2d 1182, 1189-90
(1985); Brazil, 136 Idaho at 330, 33 P.3d at 221.
       The document charging Gas with rape provided:
       That the said AMAN FARAH GAS, County of Bannock, State of Idaho, on or
       about the 20th day of January, 2013, did penetrate with his penis the anal opening
       of a female person, [R.G.], who at the time was unconscious of the nature of the
       act and this was known to the defendant.
The jury instruction in question stated:
       In order for the defendant to be guilty of battery with intent to commit rape, the
       state must prove each of the following:
               1. On or about the 20th day of January, 2013,
               2. in the state of Idaho
               3. the defendant, Aman Farah Gas, committed a battery upon [R.G.], a
       female, and
               4. when committing such battery the defendant had the intent to use such
       force as was necessary to cause his penis to penetrate, however slightly, her anal
       opening, without her consent.
       Gas argues the instruction varied from the charging document because it allowed the jury
to convict Gas by committing a battery other than penetration, and it allowed the jury to convict
if this was done without R.G.’s consent, not when she was unconscious of the nature of the act.
Gas argues he was not put on notice that he needed to defend against an act other than
penetration or that the act was without R.G.’s consent. As previously discussed, battery with
intent to commit rape does not require a battery that is separate from the penetration when it is
not a charge of forcible rape. Therefore, Gas did not need to defend against an act other than the
penetration and was not deprived of such notice. Furthermore, he was not deprived of any notice
that he needed to defend that the act was without R.G.’s consent.           He was charged with
committing rape where the victim was “unconscious or asleep” or “[w]as not aware, knowing,
perceiving, or cognizant that the act occurred.” I.C. § 18-6101(6). It is nonsensical that he
would need to defend that the act was without consent when the victim was unable to provide
consent because she was unconscious of the nature of the act. Further, the State correctly
contends that even if there were a variance, because Gas used an alibi defense asserting that he
was not present during the time the rape occurred, he was not deprived of fair notice or open to

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double jeopardy. In State v. Ormesher, 154 Idaho 221, 296 P.3d 427 (Ct. App. 2012), this Court
held the defendant’s defense was not thwarted because he in fact did offer a defense to any
allegations that were referenced in the jury instruction. Id. at 225, 296 P.3d at 431. In its
decision, this Court cited State v. Hickman, 146 Idaho 178, 182, 191 P.3d 1098, 1102 (2008), for
its holding that the defendant was not misled or embarrassed in the presentation of his defense by
a variance because it did not implicate his actual defense at trial. Id. In the present case, the
defendant’s defense was similarly not thwarted because his defense was that he was not present
during the rape. Therefore, while we find there was no variance, even if there were, Gas’s
argument also fails under the second step on the analysis.
                                               III.
                                        CONCLUSION
       Battery with intent to commit rape is an included offense of rape where the victim is
unconscious, and there was no variance between the jury instruction and the charging document.
Therefore, Gas fails to show the district court erred in its jury instruction for battery with the
intent to commit rape, and his judgment and conviction for battery with the intent to commit rape
is affirmed.
       Judge GUTIERREZ and Judge HUSKEY CONCUR.




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