ICJI 929

In order for the defendant to be guilty of Lewd Conduct With Minor Child Under Sixteen, the State must prove each of the following:

1. On or about [date]

2. in the state of Idaho

3. [the defendant [name] committed [an act of] [genital-genital contact] [or] [oral-genital contact] [or] [anal-genital contact] [or] oral-anal contact] [or] [manual-anal contact] [or] [manual-genital contact] [or] [any other] [a] [lewd or lascivious act] upon or with the body of [name or initials of victim],][or]

[the defendant [name] involved [name of victim] in an act of [bestiality] [or] [sado-masochistic abuse]]

1. [name or initials of victim] was a child under sixteen (16) years of age, and

2. the defendant [committed such act] [or] [involved such child in such act of [bestiality] [or] [sado-masochistic abuse] with the specific intent to arouse, appeal to, or gratify the lust or passions or sexual desires of the defendant, of such child, or of some other person.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.

Comment

I.C. § 18–1508.

The alleged act(s) in element 3 must match the alleged act(s) in the charging document. State v. Folk, 151 Idaho 327, 342, 256 P.3d 735, 750 (2011); State v. Day, 154 Idaho 476, 480–81, 299 P.3d

788, 792–93 (Ct. App. 2013). The bracketed language “or any other lewd or lascivious act” in element 3 should only be included when such act is alleged in the charging document. State v. Day, 154 Idaho 476, 480–81, 299 P.3d 788, 792–93 (Ct. App. 2013).

Physical contact that is not of a similar class or character as the other enumerated acts does not constitute lewd or lascivious conduct. State v. Kavajecz, 139 Idaho 482, 486–87, 80 P.3d 1083, 1087–88 (2003). For example, touching of the breasts, kissing, or tickling is not “a lewd or lascivious act.” State v. Folk, 151 Idaho 327, 342, 256 P.3d 735, 750 (2011). A violation of I.C. § 18-1506, sexual abuse of a child under the age of sixteen, is not a lesser included offense of I.C. § 18-1508, lewd conduct with a minor child under sixteen. State v. Flegel, 151 Idaho 525, 529–30, 261 P.3d 519, 523–24 (2011).

1 of 1