ICJI 1279A

ICJI 1279A DOMESTIC ASSAULT IN THE PRESENCE OF A CHILD

In order for the defendant to be guilty of Domestic Assault, the state must prove each of the following:

1. On or about [date]

2. in the state of Idaho

3. the defendant committed an assault upon [name of

victim][by(description of conduct alleged in charging document)]

4. while they were household members, and

5. [the defendant committed such offense in the

physical presence of a child under sixteen (16) years of age] [or] [the defendant committed such offense knowing that a child under sixteen (16) years of age was present and might see or hear an act of domestic assault or battery].

If any of the above has not been proven beyond a reasonable doubt, you must find the defendant not guilty. If each of the above has been proven beyond a reasonable doubt, then you must find the defendant guilty.

Persons are "household members" if they [are married to each other] [were ever married to each other] [have a child in common, regardless of whether they have been married] [are cohabitating, regardless of whether they have married or hold themselves out as husband and wife].

Comment

I.C. �� 18-901 & 18-918(2)&(4). Use IDJI 1201 for definition of assault.

The charging document apprises the defendant in general terms of the manner in which he is alleged to have committed the crime charged. If there is evidence of other uncharged conduct by the defendant which could also fit within the statutory definition of the crime charged and if the jury is merely instructed regarding the statutory definition of the crime, the defendant may be denied due process by being convicted for a crime different from that charged. State v. Sherrod, 131 Idaho 56, 951 P.2d 1283 (Ct. App. 1998). Therefore, in that circumstance the jury instruction should include, in general terms, the description of the conduct alleged in the charging document to constitute the crime charged.

Prior to July 1, 1996, the statute required that the defendant and the alleged victim both be adults, and the definition of "household member" was more restricted.