State v. Olsen

550 P.3d 762

STATE of Idaho, Plaintiff-Respondent,

v.Michael Leslie OLSEN, Defendant-Appellant.

Docket No. 49517

Court of Appeals of Idaho.

Opinion Filed: February 16, 2024

Review Denied: July 9, 2024

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. James S. Cawthon, District Judge.

Judgment of conviction, affirmed.

Erik R. Lehtinen, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant. Brian R. Dickson argued.

Hon. Raúl R. Labrador, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent. Mark W. Olson argued.

HUSKEY, Judge

Michael Leslie Olsen appeals from his felony conviction for forcible penetration by use of a foreign object under both of the theories alleged by the State: a use-of-force theory and an intoxication theory. Olsen contends the district court erred in denying his motion for judgment of acquittal under Idaho Criminal Rule 29 because insufficient evidence supported either of the theories asserted by the State. He further contends the district court erred in giving a jury instruction that included the use-of-force theory despite lacking a factual basis for the instruction. For the following reasons, we affirm the judgment of conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

J.B.¹ is the adult daughter of Olsen’s long-time girlfriend. J.B. was twelve years old when she met Olsen, and although Olsen and J.B.’s mother never married, they resided together and Olsen acted as J.B.’s stepfather. In December 2019, Olsen came to Boise for work training and stayed with J.B. at her house. Olsen and J.B. went to dinner at a brewery and then stopped by a bar: J.B. drank two beers, one cocktail, and several shots throughout the evening. On their way to J.B.’s home, Olsen and J.B. stopped and bought more alcohol. J.B. was also hosting two other friends, Alex and Leslie, at her home that evening. When Olsen and J.B. arrived at the house, Alex and Leslie had already arrived. The four adults continued to drink alcohol as they played a card game. At some point, J.B. smoked marijuana. J.B. was heavily intoxicated, and while playing the game, she laid on the floor. The game was stopped to get J.B. to bed. Alex and Leslie woke her up, got her to her feet, and helped J.B. ascend the stairs to her bedroom because J.B. was sluggish and not able to walk independently. Once upstairs, Alex and Leslie helped J.B. get into pajamas and put her into her bed. When Alex and Leslie left J.B.’s bedroom, Olsen was in the upstairs hallway, just outside of J.B.’s room. Alex and Leslie spoke briefly with Olsen, who inquired what was going on, and then they went downstairs to the bedroom they were staying in. Alex returned upstairs to use the restroom and saw Olsen crouching outside of J.B.’s bedroom.

The precise sequence of events is unclear from the record, and J.B. testified that she did not clearly remember. However, J.B. testified she remembered being downstairs and the next thing she remembered was being in her bathroom, vomiting, and being "very, very sick and spinning and very intoxicated." She returned to her bed and testified there was no one in her bed or her bedroom. J.B. recalled lying in bed, but she was "spinning" so badly, that she tried to take deep breaths and go back to sleep. At some point, Olsen entered J.B.’s room and laid on her bed. Because of her level of intoxication, J.B. was either unconscious or sleeping while Olsen got into bed with her. Olsen began rubbing J.B.’s back, pushed down J.B.’s pants, and rubbed her buttocks. J.B. woke to find someone touching her and as she became more aware, she felt pain in her vagina. She realized Olsen was in her bed, moving his fingers in and out of her vagina. J.B. got out of bed, pulled her pants up, and laid on the floor next to her bed because she was still so intoxicated that she "couldn’t even walk around or anything." Sometime thereafter, Olsen left J.B.’s room. Olsen and J.B. did not interact the next morning but that evening, Olsen asked J.B. if he needed to apologize for something. J.B. acted as if she did not know what he was talking about. The two had dinner that evening, interacted briefly upon returning home, and went to bed; J.B. in her bedroom, Olsen on the living room couch. Olsen left J.B.’s home the following day. J.B. confided in her friend shortly after the incident occurred and told her sister approximately one week after that. Ultimately, law enforcement was notified.

Olsen was indicted for felony forcible penetration by use of a foreign object under Idaho Code § 18-6608.² The State filed an amended information which alleged Olsen,

did willfully cause the penetration of the genital opening of another person by an object, instrument, or device, against her will by use of force or violence and/or where the victim was prevented from resistance by any intoxicating substance, to-wit: by inserting a finger inside the genital opening of J.B.

At trial, following the State’s case-in-chief, Olsen made an I.C.R. 29 motion, arguing that neither the use-of-force theory nor the intoxication theory were supported by admissible evidence to support a finding of guilt beyond a reasonable doubt. The State opposed the motion. The district court denied the motion. When instructing the jury, the district court provided the jury with an instruction on the use-of-force theory and the intoxication theory. The jury found Olsen guilty of forcible penetration by use of a foreign object. Olsen timely appealed.

II. STANDARD OF REVIEW

[1–3] Idaho Criminal Rule 29(c) permits the court, on motion of the defendant, to set aside the verdict and enter judgment of acquittal either after the State’s case-in-chief or after a verdict of guilty is returned. In reviewing the denial of a motion for judgment of acquittal, the appellate court must independently consider the evidence in the record and determine whether a reasonable mind could conclude that the defendant’s guilt as to each material element of the offense was proven beyond a reasonable doubt. State v. Gonzalez, 134 Idaho 907, 909, 12 P.3d 382, 384 (Ct. App. 2000). We will not substi- tute 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. State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App. 1991); State v. Decker, 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light most favorable to the prosecution. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998); Knutson, 121 Idaho at 104, 822 P.2d at 1001. We apply this same standard of review on appeal from an order granting a motion for judgment of acquittal. Gonzalez, 134 Idaho at 909, 12 P.3d at 384.

[4, 5] 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).

III. ANALYSIS

On appeal, Olsen argues the district court erred in denying his I.C.R. 29 motion because there was insufficient evidence to support his conviction for forcible penetration under either theory presented by the State. First, Olsen argues that there was insufficient evidence presented to support a conviction on the use-of-force theory because the State did not present evidence of force that overcame J.B.’s will. The State argues the use-of-force element was established when Olsen pulled down J.B.’s pants, which constituted extrinsic force, and it was against J.B.’s will based on the circumstances surrounding the assault and the nature of the relationship, the age difference, and the physical differences between J.B. and Olsen. Second, Olsen argues the intoxication theory includes the same force element as the use-of-force theory, which was not proven. The State contends the intoxication subsection does not contain a force element and the other elements of the subsection were met because the evidence showed J.B. was intoxicated and unable to resist as a result.

The relevant statute in this case is Idaho’s forcible penetration by use of a foreign object statute, I.C. § 18-6608, which states:

Every person who, for the purpose of sexual arousal, gratification or abuse, causes the penetration, however slight, of the genital or anal opening of another person, by any object, instrument or device:

(1) Against the victim’s will by:

(a) Use of force or violence; or

(b) Duress; or

(c) Threats of immediate and great bodily harm, accompanied by apparent power of execution; or

(2) Where the victim is incapable, through any unsoundness of mind, whether temporary or permanent, of giving legal consent; or

(3) Where the victim is prevented from resistance by any intoxicating, narcotic or anesthetic substance; or

(4) Where the victim is at the time unconscious of the nature of the act because the victim:

(a) Was unconscious or asleep; or

(b) Was not aware, knowing, perceiving or cognizant that the act occurred.

At issue are two subsections: subsection (1)(a) regarding forcible penetration and subsection (3) involving a victim’s inability to resist due to intoxication.

[6–8] Where the language of a statute is plain and unambiguous, this Court must give effect to the statute as written, without engaging in statutory construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be given its plain, obvious, and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. If the language is clear and unambiguous, there is no occasion for the court to resort to...