2013 Opinion No. 43
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.
Judgment of conviction for forcible penetration by use of a foreign object, vacated.
Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy Appellate Public Defender, Boise, for appellant. Jason C. Pintler argued.
Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent. Russell J. Spencer argued.
PERRY, Judge Pro Tem.
Jesse Elias appeals from his judgment of conviction for forcible penetration by use of a foreign object. Specifically, Elias asserts the State has failed to present sufficient evidence to support his conviction because the act was committed while the victim was asleep, which he claims is not prohibited by the statute under which he was prosecuted. For the reasons set forth below, we vacate the judgment.
I. FACTS AND PROCEDURE
Evidence adduced at trial showed that the victim and Elias were acquaintances. Elias had been a guest in the victim's home prior to the crime, but he did not have permission to enter the residence without first asking. On the night of the crime, Elias entered the victim's home and then her bedroom where she was sleeping with her two small children lying next to her. The victim slept in only a t-shirt and awoke around 3:30 a.m. because Elias had his fingers inside of her vagina. She rolled over onto her side and felt a razor-cut-like burning in her vagina. Her rolling over had caused Elias's hand to move. Elias then again touched her, though he did not accomplish penetration. The victim wrapped herself in a blanket. Although Elias attempted a third time to touch the victim, the blanket prevented him from being able to do so. Elias repeatedly asked the victim if she knew who he was. After the victim identified him, Elias asked if the victim wanted him to leave. She said she did, and after Elias left her bedroom, she immediately called both a friend and the police to report what had just occurred. A subsequent medical examination revealed that the victim had an abrasion on her inner labia, consistent with the insertion of a finger or other object. Police officers later located and arrested Elias.
After being charged by criminal complaint with burglary and forcible penetration by use of a foreign object, Elias waived his preliminary hearing and was bound over to district court. He pled not guilty and exercised his right to trial. The jury found Elias guilty on both charges. Elias appeals, arguing there is insufficient evidence to show that he committed forcible penetration by use of a foreign object as defined in Idaho Code § 18-6608 because the act occurred while the victim was sleeping, which he asserts is not a means by which an individual can violate the statute.
II. STANDARD OF REVIEW
The standard of review for sufficiency of the evidence for a judgment of conviction entered upon a jury verdict is whether there was substantial evidence upon which a reasonable trier of fact could have found the prosecution sustained its burden of proving the essential elements of the crime beyond a reasonable doubt. State v. Hoyle, 140 Idaho 679, 684, 99 P.3d 1069, 1074 (2004); State v. Curry, 153 Idaho 394, 396, 283 P.3d 141, 143 (Ct. App. 2012); State v. Lawyer, 150 Idaho 170, 172, 244 P.3d 1256, 1258 (Ct. App. 2010). We do not substitute our view for that of the jury as to the credibility of the witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn from the evidence. Lawyer, 150 Idaho at 172, 244 P.3d at 1258. Moreover, we consider the evidence in the light most favorable to the prosecution. Curry, 153 Idaho at 396-97, 283 P.3d at 143-44; Lawyer, 150 Idaho at 172, 244 P.3d at 1258; State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998). If we determine the evidence is insufficient, the defendant is entitled to acquittal. See Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101.
Idaho Code § 18-6608, criminalizing forcible penetration by use of a foreign object, ...