                   IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 31885

STATE OF IDAHO,                                  )
                                                 )      2007 Opinion No. 18
        Plaintiff-Respondent,                    )
                                                 )      Filed: March 22, 2007
v.                                               )
                                                 )      Stephen W. Kenyon, Clerk
MICHAEL JOSEPH AMELIA,                           )
                                                 )
        Defendant-Appellant.                     )
                                                 )

        Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
        County. Hon. Michael E. Wetherell; Hon. Phillip M. Becker, District Judges.

        Judgment of conviction for possession of amphetamine, vacated, and case
        remanded.

        Molly J. Huskey, State Appellate Public Defender; Jason C. Pintler, Deputy
        Appellate Public Defender, Boise, for appellant.

        Hon. Lawrence G. Wasden, Attorney General; Ralph R. Blount, Deputy Attorney
        General, Boise, for respondent.
                    ______________________________________________

LANSING, Judge
        A jury found Michael Joseph Amelia guilty of possession of amphetamine.1 The sole
issue presented is whether the district court committed reversible error in instructing the jury.
We conclude that prejudicial error occurred, and we therefore vacate the judgment and remand
for a new trial.
                                                I.
                                        BACKGROUND
        At Amelia’s trial, the arresting officer testified that he stopped Amelia’s vehicle for
running a red light and that Amelia seemed excessively nervous. When the officer asked why,
Amelia said, among other things, that he was nervous because he had pills in his pocket. The




                                                1
officer arrested Amelia after observing a marijuana pipe in the vehicle.        When Amelia was
searched at the jail, four blue pills were found on him. The pills were determined to be
amphetamine. Amelia was then charged with possession of a controlled substance, Idaho Code
§ 37-2732(c)(1).
       Amelia testified that the pills were given to him by a friend and that he initially thought
the pills were an over-the-counter pain reliever consistent in color and shape to some that he had
previously taken, but that his girlfriend later told him that “they did not look right.” A taped
police interview of Amelia was entered into evidence and played for the jury. In that interview,
Amelia admitted, in essence, that he knew he had the pills in his pocket, but said that he had not
tried them, that he did not know what they were, that he had no prescription for the pills, and that
he should have determined what they were. Amelia made no statement that he knew the pills
were amphetamine.
       During the course of the trial, the district court held a jury instruction conference at which
the prosecution argued that the elements instruction should say that the State was required to
prove that Amelia knowingly possessed the pills and “knew it was amphetamine or believed it to
be another controlled substance.” Amelia objected, asking the district court to instruct the jury
that the State must prove that Amelia “knew it was amphetamine.” The district court held that it
would instruct as Amelia requested. Before closing argument, the district court orally read the
instructions to the jury, including an instruction requiring proof beyond a reasonable doubt that
Amelia “knew it was amphetamine.”
       Relying on the district court’s ruling and oral instruction, defense counsel’s closing
argument was dedicated almost exclusively to the contention that Amelia did not know the pills
were amphetamine and that his suspicion that they might be another controlled substance was
insufficient to convict. Defense counsel argued:
              The key point is, though, that the State must prove beyond a reasonable
       doubt that . . . these pills were amphetamine. If you look at this, he did not know
       they were amphetamine.




1
       In the same trial, Amelia was also convicted of possession of drug paraphernalia but that
conviction is not challenged in this appeal.
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               The State has argued he’s nervous about [the pills], he thinks there may be
       something wrong with them. Even if you accept the State’s view that he seemed
       nervous about these pills, that he seemed to think something was wrong with
       them, and he testified to you he had his suspicions, that’s not proof beyond a
       reasonable doubt that he knew these were amphetamine.
               ....
               It’s also perfectly reasonable that he’s nervous about these pills because he
       doesn’t know what in the world they are. He figured out that they are not what he
       thought they were, and he’s thinking, man, I should have just got rid of these
       because this is going to be a big fuss, and I could get in a lot of trouble for it.
               That’s entirely reasonable, and that’s what happened here, so it’s not
       proven beyond a reasonable doubt that he knowingly possessed amphetamines.
               ....
       They have to prove beyond a reasonable doubt that you knowingly possessed the
       drugs, not that you had a hunch, or anything like that.
       When the case was submitted to the jury, the district court gave the jurors written copies
of the jury instructions for use in their deliberations. However, the written elements instruction,
contrary to the oral instruction previously read to the jury, stated that Amelia could be convicted
if the State proved that Amelia “knew it was amphetamine or believed it to be another controlled
substance.” The jury found Amelia guilty. On appeal, Amelia asserts that the district court erred
by giving the jury a written instruction that was inconsistent with the oral instruction upon which
his counsel relied in his closing argument.
                                                 II.
                                              ANALYSIS
       Idaho Criminal Rule 30(b) requires that the court read instructions to the jury before final
argument unless the parties consent that they may be read after argument. The purpose of this
rule is to inform the attorneys about the charge to the jury so that they may frame their arguments
with knowledge of the legal standards that the jury has been directed to apply. Rule 30(b) also
requires that a copy of the written instructions be given to each juror when the jury retires to
deliberate. It goes without saying that the written instructions given to jurors must coincide with
the instructions that were read to them. See State v. Buster, 28 Idaho 110, 120-21, 152 P. 196,
199-200 (1915).2



2
       The Court in Buster applied sections 7886 and 7902 of the Revised Codes, currently
codified as I.C. §§ 19-2132 and 19-2203. The same result follows from Idaho Criminal Rule 30.


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       At the outset, it should be noted that the written instruction taken into the jury room was a
correct statement of the law, see State v. Thompson, 143 Idaho 155, 157 n.1, 139 P.3d 757, 759
n.1 (Ct. App. 2006), and consistent with the current pattern criminal jury instruction, ICJI 403,
although this version of the instruction had not yet been adopted when Amelia’s trial occurred.3
On appeal, Amelia does not dispute that the written instruction was correct. Rather, he asserts
that the district court’s error necessitates reversal of his conviction because his counsel relied on
the oral instruction and was misled in fashioning his closing argument to the jury. We agree that
the correctness of the written instruction does not preclude relief on this appeal. Where it is
contended that a trial court’s alteration of jury instructions after closing arguments, or failure to
rule on instructions before argument, prejudicially affected a defendant’s closing argument, an
inquiry into the appropriateness or correctness of the jury instruction is irrelevant. United States
v. Wander, 601 F.2d 1251, 1262-63 (3rd Cir. 1979); United States v. Harvill, 501 F.2d 295, 296-
97 (9th Cir. 1974); Commonwealth v. Hendricks, 546 A.2d 79, 81 (Pa. Super. Ct. 1988).
Compare State v. Enno, 119 Idaho 392, 400-01, 807 P.2d 610, 618-19 (1991) (ex parte jury
instruction given after closing argument held to be harmless error where instruction was a correct
statement of the law and not prejudicial to the defendant).
       The proper inquiry is whether the defendant’s closing argument was prejudicially
affected by the post-argument alteration of the instructions. In analogous circumstances other
courts have held that a trial court’s revision of instructions during or after argument, or its
inaction on jury instructions before arguments, will constitute reversible error if an argument was
prejudicially affected or undermined. In Harvill, the trial court indicated to defense counsel that



3
       Idaho Criminal Jury Instruction 403, as modified in July 2005, states:

              In order for the defendant to be guilty of Possession of a Controlled
       Substance, the state must prove each of the following:
              1.      On or about [date]
              2.      in the state of Idaho
              3.      the defendant [name] possessed any amount of [name of
       substance], and
              4.      the defendant either knew it was [name of substance] or believed it
       was a controlled substance.
              If any of the above has not been proven beyond a reasonable doubt, you
       must find defendant not guilty. If each of the above has been proven beyond a
       reasonable doubt, then you must find the defendant guilty.
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it would give the defendant’s requested jury instruction requiring specific intent as an element of
the offense, and defense counsel gave closing argument in reliance. The trial court thereafter
instructed the jury that specific intent was not an element. On appeal, the Ninth Circuit reversed
the conviction, stating:
               In this instance, Harvill’s counsel argued to the jury after receiving
       misleading assurances that his instructions on specific intent would be given.
       Although only a portion of his closing argument stressed this issue, we cannot
       conclude that ‘the effectiveness of counsel’s argument and hence of appellant’s
       defense’ was not impaired by counsel’s inaccurate information regarding the
       court’s charge.
               Although the government argues that the outcome of the trial could not
       conceivably have been affected had Harvill’s counsel based his argument on
       accurate information about the court’s action on his requested instructions, we
       cannot say that if the argument had been retailored to focus more vigorously on
       the questions of constructive possession and credibility of the witnesses, there
       would not have been a different outcome. In effect, part of counsel’s argument
       was repudiated by the court . . . .
Harvill, 501 F.2d at 297 (citations omitted).
       In Wander, before closing argument the trial judge advised counsel that he would instruct
the jurors to acquit the defendants if they found that a woman named Currie was a willing
participant in the defendants’ criminal scheme.       Counsel for the defendants relied on this
proposed instruction in their summations, devoting a substantial portion of their arguments to
Currie and her state of mind. They attempted to portray her as a drug using, dissolute woman
whose testimony concerning her role in the scheme lacked credibility. When the judge delivered
his instructions to the jury, however, he changed the emphasis to the defendants’ intent and said
that the jury could still convict even if Currie was a willing participant as long as the defendants
intended to extort her.     On these facts, the Third Circuit Court of Appeals vacated the
defendants’ convictions because the defendants were prejudicially misled in formulating their
summations. Wander, 601 F.2d at 1262-63. See also United States v. James, 239 F.3d 120, 124-
25 (2nd Cir. 2000); United States v. Gaskins, 849 F.2d 454, 458 (9th Cir. 1988); United States v.
Mendoza, 473 F.2d 697, 699-701 (5th Cir. 1973); People v. Sanchez, 147 Cal. Rptr. 850 (Cal.
App. Dep’t Super. Ct. 1978); People v. Clark, 556 N.W.2d 820 (Mich. 1996); Murray v. State,
857 S.W.2d 806 (Tex. Ct. App. 1993).
       In the present case, there is apparent prejudice. In reliance upon the oral jury instruction,
defense counsel focused his argument on the weakness of the State’s evidence that Amelia knew


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the pills to be amphetamine but did not address the alternative basis given in the written
instruction for a finding of guilt--that Amelia believed the pills to be some other controlled
substance.   Indeed, counsel’s argument came perilously close to a concession that Amelia
believed the pills to be a drug that it was unlawful for him to possess, but urged that this would
not be enough for a conviction because the State must prove knowledge that the substance was
amphetamine. In this circumstance, the district court’s inadvertence4 caused prejudice because if
the written instruction had been approved by the court before argument, counsel no doubt would
have tailored his argument to address the element that allowed conviction if Amelia believed the
pills to be a controlled substance.
       We cannot say with reasonable certainty that the verdict in this case would have been the
same absent the district court’s error. Therefore, the judgment of conviction is vacated, and this
case is remanded for further proceedings.
       Chief Judge PERRY and Judge GUTIERREZ CONCUR.




4
        There is no indication in the record that the district court rethought its ruling and
intentionally gave a revised instruction. The result in this case would be the same in either event.
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