2014 Opinion No. 9
This decision is not final until exception of the 21 day petition for rehearing period. Pursuant to rule 118 of the Idaho Appellate Rules
Appeal from the District Court of the Second Judicial District, State of Idaho, Nez Perce County. Hon. Carl B. Kerrick, District Judge.
Judgment of conviction for aggravated assault and order awarding restitution, affirmed.
Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant. Brian R. Dickson argued.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. Lori A. Fleming argued.
LANSING, Judge. Judge MELANSON CONCURS. Chief Judge GUTIERREZ CONCURRING IN PART AND DISSENTING IN PART.
Brandon Tyler Eddins appeals from his judgment of conviction for aggravated assault and an order awarding restitution. He argues that the conviction was tainted by fundamental error because the State committed prosecutorial misconduct by falsely implying that the victim had been completely blinded. He also argues that the jury's verdict, finding him not guilty of aggravated battery but guilty of aggravated assault, precludes any award of restitution.
The nature of the altercation between Eddins and his victim, Daniel Hight, was disputed at trial. Both Eddins and Hight testified and agreed that the two confronted each other on a street, adjacent to a mutual acquaintance's home, and that Hight was burned with acid. Hight testified that he, his girlfriend, and her children were traveling to a relative's home. As they approached the home, they observed Eddins but attempted to avoid him because he had been harassing them. Before they could leave, Eddins saw the car and chased after it. Hight, who testified he was not sure why Eddins was harassing him, stopped the car and got out of it to confront Eddins. Eddins charged at him, saying something unintelligible, and then hit him in the face with the bottle of acid. Hight's recollection after the acid hit him was limited. He testified that he felt a cold burn, that he had difficulty breathing because of the acid fumes, and that he could not see at all.
After being covered in the acid, Hight first attempted to rinse the acid off his skin and flush his eyes at the relative's home. Because he needed additional medical treatment, he was then taken to a hospital. Over a period of weeks, medical staff attempted to save his eye, but eventually removed it because Hight could not use it to see and because it created a significant risk of infection.
Eddins testified to a different course of events. He said that he and Hight had been friends but that he was upset because Hight had borrowed his property and not returned it. He stated that he saw Hight's car that evening and followed it because he lived nearby and was concerned Hight would steal his property. He testified that Hight stopped, got out of his car and then got " right up in [his] face." Eddins responded by saying, " Back off, man, I have acid." Hight did not respect this warning and escalated the confrontation by pushing Eddins. In so doing, Hight caused the plastic bottle containing the acid to leave Eddins' hand and splash over both of them. Eddins fled the scene, returned home, rinsed the acid off of his body, and flushed the acid from his eyes.
Eddins was charged with aggravated battery, Idaho Code § § 18-903(b), 18-907(c), 18-908; and the State sought a persistent violator sentence enhancement, I.C. § 19-2514. The State alleged that Eddins actually, intentionally, and unlawfully struck Daniel Hight with a plastic container containing corrosive acid.
At trial, the jury was instructed that if it found Eddins not guilty of aggravated battery, it must consider the lesser-included offense of aggravated assault. Aggravated assault was defined in the instructions as " unlawfully attempt[ing], with apparent ability, to commit a violent injury on the person of another" or " intentionally and unlawfully threaten[ing] by word or act to do violence to the person of another, with an apparent ability to do so, and do[ing] some act which creates a well-founded fear in the other person that such violence is imminent." The jury was also instructed that it could not proceed to consider the aggravated assault charge unless it first acquitted Eddins of the aggravated battery charge.
The jury returned a verdict finding Eddins guilty of aggravated assault. Thereafter, the trial court entered its judgment of conviction sentencing Eddins to a unified sentence of fifteen years in prison, with six years fixed. It also ordered Eddins to pay $5,241.79 in restitution to cover Hight's medical expenses. Eddins appeals the judgment of conviction and the order awarding restitution.
Eddins argues that his conviction is tainted by fundamental error because the prosecutor committed misconduct by falsely implying that Hight was totally blinded. He also argues that he cannot be held liable for restitution damages because he was found guilty of aggravated assault, a noncontact crime, and acquitted of aggravated battery, a contact crime.
A. Eddins Failed to Show that the Prosecutor's Statements Constitute Fundamental Error
The State implied on at least seven occasions that Hight had been completely blinded. In each instance, the State described Hight's injury as a loss of " his sense of sight" using that phrase or words of similar import. The words do not appear to have been chosen carelessly or by accident because these words framed counsel's opening and closing remarks and because they represented the theme of counsel's argument. For example, the State began its opening remarks in the following manner:
Ladies and gentlemen of the jury, out of our senses, out of our five senses, sight might be the most important one. We use our sense ...