               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 39215

STATE OF IDAHO,                                 )     2012 Unpublished Opinion No. 720
                                                )
       Plaintiff-Respondent,                    )     Filed: November 15, 2012
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
CHRISTOPHER BRIGGS,                             )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Kathryn A. Sticklen, District Judge. Hon. Thomas P. Watkins,
       Magistrate.

       District court’s appellate decision affirming magistrate court’s judgment of
       conviction for second degree stalking, affirmed.

       Ellsworth, Kallas & DeFranco, PLLC; Joseph L. Ellsworth, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Chief Judge
       Christopher Briggs appeals from the district court’s decision on intermediate appeal
affirming his misdemeanor conviction. For the reasons set forth below, we affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Briggs was convicted by jury verdict of second degree stalking, in violation of Idaho
Code § 18-7906. After dismissing the jury, the magistrate notified the parties that the jury may
have been misinstructed, because the definition provided for “course of conduct” did not follow
the amended statute. Specifically, the definition did not describe that the challenged conduct
must be “repeated acts of nonconsensual contact.” Briggs moved for a new trial. Following a
hearing, the magistrate denied the motion finding that the instructional error was harmless
because all the evidence presented at trial described nonconsensual acts. Therefore, the jury
could only convict Briggs based on nonconsensual acts.        Briggs appealed the magistrate’s

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decision to the district court and the district court affirmed the judgment of conviction. Briggs
appeals.
                                                  II.
                                             ANALYSIS
          Briggs claims that the jury instructions: (1) were improper because the jury was misled
as to the elements of the crime; and (2) deprived Briggs of a fair trial because his constitutional
rights were not protected. The State contends that Briggs failed to establish fundamental error;
therefore, the district court did not err in affirming the conviction. Further, the State alleges that
Briggs’ constitutional rights claim was never raised below and is not properly before this Court.
          On review of a decision of the district court, rendered in its appellate capacity, we review
the decision of the district court directly. Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d
758, 760 (2008); State v. DeWitt, 145 Idaho 709, 711, 184 P.3d 215, 217 (Ct. App. 2008). We
examine the magistrate record to determine whether there is substantial and competent evidence
to support the magistrate’s findings of fact and whether the magistrate’s conclusions of law
follow from those findings. Losser, 145 Idaho at 672, 183 P.3d at 760; DeWitt, 145 Idaho at 711,
184 P.3d at 217. If those findings are so supported and the conclusions follow therefrom and if
the district court affirmed the magistrate’s decision, we affirm the district court’s decision as a
matter of procedure. Losser, 145 Idaho at 672, 183 P.3d at 760; DeWitt, 145 Idaho at 711, 184
P.3d at 217.
           The question 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). An erroneous instruction will not constitute reversible error
unless the instructions as a whole misled the jury or prejudiced a party. State v. Shackelford, 150
Idaho 355, 374, 247 P.3d 582, 601 (2010). We presume that the jury followed the court’s
instructions. See State v. Kilby, 130 Idaho 747, 751, 947 P.2d 420, 424 (Ct. App. 1997); State v.
Hudson, 129 Idaho 478, 481, 927 P.2d 451, 454 (Ct. App. 1996). Briggs failed to object to the
instruction below, therefore he asserts the error is fundamental in order to obtain appellate
review.




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       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. 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) the error is clear or obvious without the need for
reference to any additional information not contained in the appellate record; and (3) the error
affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978. Because jury
instructions that relieve the State of its duty to prove, beyond a reasonable doubt, all the essential
elements of a crime violate a defendant’s right to due process, jury instructions that omit a
contested, essential element of the crime, rise to the level of fundamental error. State v. Draper,
151 Idaho 576, 588, 261 P.3d 853, 865 (2011).
A.     Defining “Course of Conduct”
       The first element of a claim of fundamental error is that the error be constitutional.
Briggs must show that an error existed in the jury instructions that misled the jury and violated
his right to a fair trial. Briggs alleges that the magistrate provided the jury with an outdated
definition of “course of conduct.” He alleges that this constitutes error because the outdated
definition made it possible for the jury to convict him of something “less than repeated acts of
nonconsensual conduct.”      After the presentation of evidence, the court gave the jury the
following instruction, which tracks the elements of second degree stalking in accordance with
I.C. § 18-7906:
              In order for the defendant to be guilty of Stalking, the state must prove
       each of the following:
       1.     On or about April 1st through June 1st, 2009
       2.     in the state of Idaho
       3.     the defendant Christopher Briggs
       4.     knowingly and maliciously engaged in a course of conduct that seriously
              alarmed, annoyed, or harassed [victim], and was such as would cause a
              reasonable person substantial emotional distress, OR



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       5.      engaged in a course of conduct such as would cause a reasonable person to
               be in fear of death or physical injury, or in fear of the death or physical
               injury of a family member.
The magistrate also provided the jury with the following definition:
              “Course of conduct” means a pattern of conduct composed of a series of
       acts over a period of time, however short, evidencing a continuity of purpose.
       Course of conduct does not include constitutionally protected activity.
However, the definition given by the court differs with the definition currently provided in I.C.
§ 18-7906. The corresponding definition provided for by that statute reads:
              “Course of conduct” means repeated acts of nonconsensual contact
       involving the victim or a family or household member of the victim, provided
       however, that constitutionally protected activity is not included within the
       meaning of this definition.
After the jury was excused, the magistrate recognized that the outdated definition was used and
entertained a motion for a new trial. In its memorandum and opinion addressing the motion, the
magistrate found that the jury was not instructed correctly; nonetheless, the court, assuming the
error was fundamental, found that it was harmless. Likewise, Briggs now assumes the error is
fundamental and therefore only addresses whether the error was harmless. The State alleges that
the error did not mislead the jury as to the elements of the crime or reduce the State’s burden of
proof. For the following reasons, we agree.
       We note that the instruction challenged is not an essential elements instruction, but one
that is intended to provide definition to an element, consistent with a statute. However, even
assuming the error was of constitutional dimension, we determine that the error was harmless.
The omission of “repeated acts of nonconsensual contact” could potentially mislead the jury in
two ways. First, the jury could convict Briggs based on a single act, rather than repeated acts.
Second, the jury could convict Briggs based on consensual contact, rather than nonconsensual
contact.    Notwithstanding this potential to mislead the jury, other language in the jury
instructions prevented the jury from convicting Briggs based on the foregoing reasons. As to the
first point, the omission of “repeated acts” in the definition did not allow the jury to convict
Briggs based on one incident. Even though “repeated acts” was not included in the definition,
the definition still included the term “pattern of conduct composed of a series of acts.” The word
“pattern” indicated to the jury the need to find not just one incident of wrong doing, but multiple
incidents. Similarly, “series of acts” prohibits the jury from convicting based on one act. In



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addition, the elements instruction asserted acts over a course of time, April 1 through June 1,
2009. Finally, a “continuity of purpose” implies more than a singular event.
       As to the second point, taken as a whole, the jury instructions denote that only
nonconsensual acts should be considered to support a conviction. The instructions provided that
the required conduct of the defendant needed to cause the victim to be “seriously alarmed,
annoyed, or harassed,” or “would cause a reasonable person to be in fear of death or physical
injury.” It is unreasonable to conclude that any victim would consent to conduct that would have
the foregoing results.    Therefore, such language indicates that the required conduct be
nonconsensual. The definition of harassed included conduct that “served no legitimate purpose.”
The “continuity of purpose” language in the course of conduct instruction given encompasses the
improper purpose alleged, stalking. Further, the instructions included a definition describing
nonconsensual conduct.       The definition described the following seven categories as
“nonconsensual” contact: (1) following the victim or maintaining surveillance, including by
electronic means on the victim; (2) contacting the victim in a public place or on private property;
(3) appearing at the workplace or residence of the victim; (4) entering onto or remaining on
property owned, leased, or occupied by the victim; (5) contacting the victim by telephone or
causing the victim’s telephone to ring repeatedly or continuously regardless of whether a
conversation ensues; (6) sending mail or electronic communications to the victim; and
(7) placing an object on or delivering an object to property owned, leased, or occupied by the
victim. Therefore, taken as a whole, the instructions directed the jury to convict Briggs only if
nonconsensual conduct was found.
       Even if the jury theoretically could convict Briggs based on consensual contact, the
record demonstrates that it was not factually possible for the jury to do so, because only
nonconsensual evidence was presented to the jury. The magistrate found that all of Briggs’ acts,
as alleged by the State, fell into one of the defined categories of nonconsensual acts. These acts
included: (1) potential surveillance on the victim by way of cell phone; (2) appearing at the
victim’s residence and yelling; (3) attempting to contact the victim by telephone; and (4) sending
electronic communications to the victim. Further, the record demonstrates that Briggs attempted
to contact the victim up to ten times. In addition, he also contacted her friends and brother
several times, which the victim described as threatening, including contacting one friend around
twenty-five times. Briggs does not argue that such conduct was consensual, but rather argues


                                                5
that he had a reason for the conduct--he was worried about the victim and wanted to know where
she was. 1 Despite Briggs’ alleged motive for engaging in such acts, the acts nonetheless are
nonconsensual. As a result, the jury was presented with only nonconsensual conduct and,
therefore, could not have determined the verdict based on consensual conduct. Accordingly, we
determine that the outdated definition of “course of conduct” was harmless.
B.     Defining “Constitutionally Protected Activity”
       Briggs alleges, for the first time on appeal, that the failure to instruct the jury on the
definition of constitutionally protected activity misled the jury and violated his first amendment
constitutional rights.   The State claims that this issue was not raised below, including on
intermediate appeal, and in the alternative, Briggs has failed to establish fundamental error. In
his appeal to the district court, Briggs claimed that: (1) the jury instructions were misleading;
(2) I.C. § 18-7906 is unconstitutional on its face; (3) I.C. § 18-7906 is unconstitutional as applied
to Briggs; and (4) the verdict was not supported by competent evidence. The district court did
not rule on the merits of Briggs’ second and third claim, finding that the constitutional challenges
were not preserved before the magistrate court. 2 Briggs now, however, claims that the failure to
define constitutionally protected activity constitutes fundamental error and, therefore, is
appropriately before this Court.
       Even if we address this claim, Briggs’ assertions fail. First, Briggs must show that the
failure to define “constitutionally protected activity” violated his constitutional rights. Briggs
alleges that the prosecution presented evidence to the jury of activity that is constitutionally
protected. Without a proper definition, Briggs claims the jury could have convicted him based
on constitutionally protected activity, thereby violating the United States and Idaho
Constitutions. The State asserts that the instruction was not constitutionally required 3 and that



1
        Much of Briggs’ complaint regarding the evidence is that it constituted hearsay or lacked
foundation or relevance. However, the evidence was admitted at trial without objection and thus,
is properly before us in the record.
2
        The court will not generally consider an issue not raised before the district court sitting in
its appellate capacity. State v. Doe, 144 Idaho 819, 822, 172 P.3d 1094, 1097 (2007).
3
        We note again that the claimed omitted instruction is definitional rather than the elements
instruction. Further, the instruction given did exclude protected speech, although without further
definition which Briggs claims was required.

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unobjected-to testimony at trial established that Briggs’ messages were threatening, and thus
were unprotected speech. We agree.
          This Court has previously determined that communication with the “intent to annoy,
terrify, threaten, intimidate, harass, or offend” is not protected speech. State v. Richards, 127
Idaho 31, 36, 896 P.2d 357, 362 (Ct. App. 1995). Here, the jury was provided with instructions
to find Briggs guilty of stalking only if he either harassed the victim, or caused her to be in fear
of death or physical injury. The court then defined “harassed” as “a knowing and willful course
of conduct directed at a specific person which seriously alarmed or annoyed the person, and
which served no legitimate purpose.”        (Emphasis added.)     Based on the instructions and
definitions, the jury was only able to find Briggs guilty if he harassed the victim or threatened
harm. Harassment and threats are unprotected speech; therefore the jury was only able to convict
based on unprotected speech. Consequently, there was no need for the magistrate to define what
constitutes constitutionally protected activity. The jury was already instructed on the necessary
requirements for conviction, and those requirements only included unprotected speech activities.
Thus, Briggs’ constitutional rights were not violated because, by virtue of the instructions and
definitions as a whole, the jury could not consider protected speech when determining its verdict.
Accordingly, Briggs failed to show that the omission of this definition violated his constitutional
rights.
          Even if we were to assume that Briggs’ constitutional rights were violated, he has still
failed to show that the omission of the definition of constitutionally protected activity was not
harmless. Briggs alleges that the only evidence of unprotected activity presented at trial was
evidence that he appeared at the residence where the victim was staying and yelled at her from
the driveway. He asserts that all other evidence presented at trial was either protected speech or
hearsay. Specifically, Briggs alleges that evidence regarding: (1) a GPS tracking device; (2) a
gun; (3) emails; (4) text messages 4; (5) a MySpace posting; and (6) phone calls, are all evidence
of protected speech. However, Briggs fails to recognize that the evidence he argues is protected
speech can become unprotected speech when performed with the intent to harass or threaten. For
instance, although there was no evidence indicating that the emails directly threatened the victim,


4
        Briggs claims that evidence of various messages constituted hearsay or was otherwise
objectionable. However, again, the evidence was not objected to, is properly before us and is not
subject to a fundamental error analysis.

                                                 7
the emails can nevertheless become unprotected speech when sent repeatedly with the intent to
annoy, alarm, or harass the victim. The victim never responded to the emails and Briggs was
aware of her attempt not to communicate with him. Therefore, the jury could infer that Briggs’
act of repeatedly emailing the victim was meant to annoy, alarm, or harass her, and thus would
be unprotected speech.
       Notwithstanding Briggs’ assertions, the record demonstrates that Briggs engaged in the
following unprotected activities: (1) Briggs sent the victim ten emails, none of which were
responded to; (2) Briggs called and sent text messages to the victim’s friends threatening to harm
them if they did not provide him with the location of the victim. One friend testified to receiving
up to twenty-five text messages in one week from Briggs; (3) Briggs sent a message to the victim
through her MySpace account; (4) Briggs filed a missing person report; (5) Briggs repeatedly
called the residence where the victim was staying; (6) Briggs appeared at the residence and
yelled for the victim to come out.       Based on the foregoing evidence, we agree that the
unprotected activity conducted by Briggs was the basis of his conviction. Irrespective of the jury
instructions’ failure to define “constitutionally protected activity,” we conclude that, on the
whole record and beyond a reasonable doubt, the evidence of unprotected speech was the basis
of the jury’s verdict and could not have been attributable to any erroneous instruction.
Therefore, the error, if any, was harmless.
                                                III.
                                         CONCLUSION
       The magistrate found that the errors in the jury instructions were harmless. The district
court affirmed the magistrate’s decision. Briggs has failed to demonstrate reversible error.
Accordingly, the district court’s order, on intermediate appeal, is affirmed.
       Judge GUTIERREZ and Judge MELANSON CONCUR.




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