IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 49255
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) Rexburg, June 2023 Term
)
v. ) Opinion filed: October 4, 2023
)
AUDREY ROSE MONROE, ) Melanie Gagnepain, Clerk
)
Defendant-Appellant. )
Appeal from the District Court of the Seventh Judicial District of the State of Idaho,
Bingham County. Darren B. Simpson, District Judge.
The judgment of the district court is affirmed.
Erik R. Lehtinen, Interim State Appellate Public Defender, Boise, for Appellant.
Sally Cooley argued.
Raúl R. Labrador, Idaho Attorney General, Boise, for Respondent. Kacey Jones
argued.
_______________________________________________
MOELLER, Justice.
While a passenger during an unrelated traffic stop, Audrey Monroe was recognized by a
Bingham County Sheriff’s deputy as having an outstanding warrant. Pursuant to the warrant, the
deputy attempted to take her into custody. In the course of the arrest, Monroe refused to release
her phone, which was secured on her finger by a phone ring holder. As Monroe’s resistance
escalated, she fell to the ground and began violently kicking, making contact with the officer.
Ultimately, she was secured in the police cruiser. The incident was captured on video by the
arresting officer’s body camera.
For her conduct during the arrest, Monroe was charged with felony battery on a police
officer. I.C. § 18-915(3). During trial, Monroe asked the district court for jury instructions
regarding two misdemeanor offenses, asserting that they were lesser included offenses of the crime
charged. The district court declined to give either instruction. At the conclusion of the trial, the
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jury found Monroe guilty of the felony charge. On appeal, Monroe argues that the district court
committed reversible error in failing to give the requested lesser included jury instructions. For the
reasons discussed below, we affirm Monroe’s conviction.
I. FACTUAL AND PROCEDURAL BACKGROUND
In March 2021, Corporal Lawrence Henrie, a Bingham County deputy sheriff, initiated a
traffic stop on a speeding vehicle. During the traffic stop, Cpl. Henrie recognized Audrey Monroe,
a passenger in the car, as a fugitive with an outstanding warrant. Monroe’s mother was the driver
of the vehicle and Monroe’s young child was sitting in a car seat in the back of the vehicle. After
Cpl. Henrie confirmed the outstanding warrant with dispatch, he asked Monroe to exit the vehicle
and attempted to take Monroe into custody. While securing handcuffs on Monroe, the deputy
instructed Monroe to release her phone, which was secured on Monroe’s finger by a phone ring
holder. Monroe refused, telling the deputy he could not have her phone. Cpl. Henrie repeated his
instruction to Monroe for her to release the phone. Monroe continued to resist and the arrest
escalated.
Monroe turned to face the officer, lowered her head, and attempted to back away. As she
attempted to back away from the officer, Monroe fell to the ground. While on the ground, Monroe
began to forcefully kick at Cpl. Henrie. Body camera footage shows that Monroe made contact
with Cpl. Henrie at least once.
Cpl. Henrie was able to eventually regain control of Monroe and restrain her on the ground.
During this time, Cpl. Henrie can be heard on his radio requesting another officer to respond faster
given the violent escalations from Monroe. Cpl. Henrie instructed Monroe to stand up and that
they were going to walk to his police car. Monroe said no. After a brief pause during which Cpl.
Henrie discussed the event with dispatch on his radio, he again instructed Monroe to stand up.
Monroe responded with an expletive, indicating that she thought she was about to “get murdered.”
The officer immediately assured her that she was not.
After briefly standing, Monroe continued to resist and, again, had to be restrained on the
ground. Much of this resistance cannot be seen on the bodycam because Monroe was close to Cpl.
Henrie. However, Cpl. Henrie can be heard on his radio saying, “Standby. She is still kicking and
fighting me.” Shortly thereafter, Cpl. Henrie repeatedly instructed Monroe to stop resisting.
Monroe responded that she was not resisting, and again screamed for her phone—this time wanting
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to answer the phone. Now restrained on the ground, Monroe told her mother to get her phone.
When Cpl. Henrie instructed Monroe’s mother to stay in the car, she responded to Monroe,
“Honey, we both can’t go to jail.”
After catching his breath, Cpl. Henrie asked Monroe, “Ok. I need you to just stand up and
walk to my car. Are you going to do that without kicking me?” Monroe initially responded:
“Nope.” She then continued, “I will not stand up. I will make you [expletive deleted] hog carry me
and I will fight the whole way.” At this time, Monroe’s child can be heard crying in the
background. Then, Cpl. Henrie again asked Monroe: “Are you ready to stand up and walk to my
car?” Monroe responded: “I am ready to stand, but I am not walking.” Cpl. Henrie clarified,
“without kicking?” Monroe responded, “No, no, nope. I wanna just stand.” Cpl. Henrie informed
Monroe she was not going to stand, unless she was willing to walk to his police car. “Then I guess
we are gonna be here. Yep.” Monroe continued to resist as another officer arrived on scene. When
the additional officer arrived, Cpl. Henrie asked for help getting Monroe into his police car and
informed the officer of her statements that she intended to resist. As Monroe continued to resist,
one officer had to hold Monroe on one seat as Cpl. Henrie walked to the other side to pull her fully
in the vehicle. With the additional officer’s help, Cpl. Henrie eventually secured Monroe in the
back of his police cruiser.
For her conduct during the arrest, Monroe was charged with battery on a police officer or
sheriff, a felony under Idaho Code section 18-915(3). The case proceeded to trial. After opening
statements, while the jury was excused for lunch, the district court discussed the proposed jury
instructions with counsel. Monroe requested that the district court give jury instructions regarding
two asserted lesser offenses: (1) misdemeanor battery upon a police officer by touching and (2)
misdemeanor resisting or obstructing. The requested instructions read as follows:
[PROPOSED JURY] INSTRUCTION NO. ___
In order for the defendant to be guilty of Misdemeanor Battery upon Certain
Personnel, the state must prove each of the following:
1. On or about March 19,[ ]2021
2. in the state of Idaho
3. the defendant AUDREY ROSE MONROE committed a battery,
4. upon Lawrence Henrie
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5. By Unlawfully [sic] touching the person of Lawrence Henry [sic] against his will
by kicking him in the leg and stomach, and
6. at the time of the offense, LAWRENCE HENRIE was a peace officer, and
7. the defendant knew or had reasons to know LAWRENCE HENRIE was a peace
officer.
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.
[PROPOSED JURY] INSTRUCTION NO. ___
In order for the defendant to be guilty of Resisting or Obstructing an Officer, the
state must prove each of the following:
1. On or about March 19, 2021
2. in the state of Idaho
3. the defendant AUDREY ROSE MONROE willfully
4. resisted or obstructed
5. LAWRENCE HENRIE, a peace officer,
6. in the discharge, or the attempt to discharge, any duty of LAWRENECE
HENRIE’S office.
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.
(Emphasis in originals).
The district court rejected the proposed resisting or obstructing instruction, concluding that
it was not a proper lesser included offense because it did not “entail[] the same elements as the
battery that’s being alleged as the felony in this case.” As for the misdemeanor battery upon an
officer instruction, the court reserved ruling until the close of evidence.
After both sides had rested their cases, the district court revisited the requested jury
instruction for misdemeanor battery on an officer. The district court concluded that misdemeanor
battery was a lesser included of the felony offense: “So the first question is: Is battery on an officer
[by] unlawful touching a lesser included offense of battery of an officer, the felony offense, [by]
striking? The [district court] would have to conclude that it is.” However, the district court noted
the conjunctive nature of the statute and the additional statutory requirement at issue. “The
question is -- because this is not in the disjunctive. It says ‘and there is a reasonable view of the
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evidence presented in the case that would support a finding that the defendant committed such
lesser offense [. . . .]’ ” (citing I.C. § 19-2132(b) (emphasis added)). Before ruling, the court heard
arguments from both the State and Monroe. After a discussion with counsel, the district court
rejected the requested instruction, finding there was no reasonable view of the evidence supporting
a finding of that charge:
This Court, first of all, finds that under the statutory definitions, that battery on a
law enforcement officer, a striking under the current statutory authority relied upon
by the State . . . [Idaho Code section] 18-915(3), which excludes that unlawful
touching element of battery.
That it is the greater offense, that battery on an officer – unlawful touching would
be a misdemeanor offense. So it is a lesser included offense.
However, the statutory provision requires not only that it be a lesser included
offense and that you have asked for it, but that there is a reasonable view of the
evidence presented in the case that would support a finding of that charge.
You’ve talked about resisting, obstructing, and I don’t think that’s . . . a lesser
included offense. And I don’t think, quite frankly, and the Court will find that it’s
not a reasonable interpretation that it would be -- that the evidence presented in this
case would amount to the lesser included offense. So I’m going to deny the request
for the lesser included offense and will only instruct the greater offense.
Following deliberations, the jury returned a verdict of guilty on the charge of felony battery
on an officer. The district court later sentenced Monroe to five years in prison, with the first two
years fixed and three years indeterminate, to be served consecutively with the sentence imposed
for violating probation on her 2017 burglary conviction.
Monroe timely appealed. On appeal, Monroe argues that the district court committed
reversible error in failing to give either of the lesser included jury instructions she requested.
Additionally, in her opening brief, Monroe challenges the application of the “acquittal first rule”
to the facts of her case.
II. STANDARDS OF REVIEW
“This Court exercises free review over whether a jury was given proper instructions.” State
v. Severson, 147 Idaho 694, 710,
215 P.3d 414, 430 (2009) (citing Miller v. State,
135 Idaho 261,
265,
16 P.3d 937, 941 (Ct. App. 2000)). Similarly, “[t]he issue of whether a particular jury
instruction is necessary and whether the jury has been properly instructed is a matter of law over
which this Court exercises free review.” State v. Stanfield,
158 Idaho 327, 331,
347 P.3d 175, 179
(2015) (alteration in original) (quoting State v. Adamcik,
152 Idaho 445, 472,
272 P.3d 417, 444
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(2012)). “ ‘The determination of whether a particular crime is an included offense of the crime
charged involves a question of law over which this Court exercises free review.’ ” State v. Flegel,
151 Idaho 525, 527,
261 P.3d 519, 521 (2011) (quoting State v. Rosencrantz,
130 Idaho 666, 668,
946 P.2d 628, 630 (1997)).
III. ANALYSIS
Monroe challenges the denial of both requested jury instructions and squarely attacks the
“acquittal first rule.” However, since the acquittal first rule is used in determining if an error is
harmless, we must first address whether there was an error by the district court in denying the
requested instructions.
Monroe argues that the district court erred in rejecting her two requested lesser included
offense instructions for misdemeanor battery on an officer and resisting and obstructing an officer.
Importantly, these offenses were denied for different reasons by the district court below.
Specifically, the district court determined that the resisting or obstructing instruction was not a
lesser included offense to the charge of battery on an officer. Regarding the misdemeanor battery
on an officer instruction, the district court concluded that it was a lesser included offense; however,
it still denied the instruction on the grounds that there was “not a reasonable interpretation that it
would be – that the evidence presented in this case would amount to the lesser included offense.”
Thus, in evaluating these instructions, we must first determine whether the district court erred in
concluding that the resisting or obstructing instruction was not a lesser included offense and,
separately, whether the district court erred in concluding that there was no reasonable view of the
evidence that would support a verdict that the defendant committed the lesser offense of
misdemeanor battery on an officer and not the greater offense of felony battery on an officer.
A. The district court did not err in denying Monroe’s requested resisting or obstructing
an officer instruction because it was not a lesser included offense under the pleading
theory.
1. The applicability of the pleading theory was preserved for appeal.
On appeal, Monroe asserts that the resisting or obstructing instruction should have been
given under the pleading theory.1 The State contends that Monroe failed to properly preserve this
1
Monroe does not challenge the district court’s decision under the statutory theory. While Monroe notes that the
district court “did not clearly identify whether it was evaluating the offenses under the pleading theory or the statutory
theory,” she only argues that resisting or obstructing was a lesser included offense under the pleading theory.
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argument, maintaining that although she relied on the statutory theory at trial, she has abandoned
it on appeal in favor of the pleading theory. When Monroe asked the district court for a jury
instruction on misdemeanor resisting or obstructing, the State objected. The State addressed both
the statutory and pleading theories in its argument. When the district court denied the motion, its
explanation was based, at least in part, on the pleading theory: “I don’t think [misdemeanor
resisting or obstructing] entails the same elements as the battery that’s being alleged [ ] in this
case.” (Emphasis added).
In State v. DuValt, we held that “ordinarily issues cannot be raised for the first time on
appeal. An exception to this rule, however, has been applied by this Court when the issue was
argued to or decided by the trial court.” 131 Idaho 550, 553,
961 P.2d 641, 644 (1998) (citations
omitted). See also State v. Miramontes,
170 Idaho 920, 924,
517 P.3d 849, 853 (2022) (holding an
issue “presented to the trial court with argument and authority” is preserved even if there was not
an adverse ruling from the court). Although not asserted by Monroe, the pleading theory was raised
by the State, addressed by the court, and ultimately provided a basis for the court’s adverse ruling.
Accordingly, we conclude that the issue was satisfactorily preserved for appeal.
2. The pleading theory was properly applied by the district court in denying the
requested instruction.
As an initial matter, we note that “ ‘[t]here are two theories under which a particular offense
may be determined to be a lesser-included offense of a charged offense’: the statutory theory and
the pleading theory.” State v. McIntosh, 160 Idaho 1, 4–5,
368 P.3d 621, 624–25 (2016) (quoting
State v. Sanchez–Castro,
157 Idaho 647, 648,
339 P.3d 372, 373 (2014)). As for the former, the
statutory theory looks to the statutory definitions and compares the elements of each offense. More
specifically, “[t]he statutory theory provides that ‘one offense is not considered a lesser-included
of another unless it is necessarily so under the statutory definition of the crime.’ ”
Id. at 4–5, 368
P.3d at 624–25 (quoting Sanchez–Castro,
157 Idaho at 648,
339 P.3d at 373). “In determining
whether an offense is a lesser-included offense this Court applies the Blockburger test,
Blockburger v. United States,
284 U.S. 299,
52 S.Ct. 180,
76 L.Ed. 306 (1932), which provides
that an offense may be a lesser-included of another if all the elements of the lesser offense are
included within the elements needed to sustain a conviction of the greater offense.” McIntosh, 160
Idaho at 4–5, 368 P.3d at 624–25 (citing State v. McCormick,
100 Idaho 111, 114,
594 P.2d 149,
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152 (1979)). Importantly, as this Court has said, “an offense is not lesser-included if it is possible
to commit the greater offense without committing the lesser.” Id. at 5, 368 P.3d at 625.
As for the second approach, “[u]nder [the pleading] theory, an offense is included within
another if the charging document alleges facts that, if proven, also necessarily prove the elements
of the lesser-included offense.” Id. (citing State v. Flegel,
151 Idaho 525, 529,
261 P.3d 519, 523
(2011)). Importantly, “the pleading theory requires an examination of the charging documents.”
Rome v. State,
164 Idaho 407, 417,
431 P.3d 242, 252 (2018). Thus, “[t]he pleading theory does
not look at evidence adduced at trial, only the language of the charging document.” State v.
Anderson, ___ Idaho ___, ___,
530 P.3d 680, 689 (2023) (quoting State v. Weatherly,
160 Idaho
302, 305,
371 P.3d 815, 818 (Ct. App. 2016)). “Under the pleading theory ‘an offense is an
included offense if it is alleged in the information as a means or element of the commission of the
higher offense.’ ” Rome, 164 Idaho at 417,
431 P.3d at 252 (quoting State v. Curtis,
130 Idaho 522,
524,
944 P.2d 119, 121 (1997)). See also Sivak v. State,
112 Idaho 197, 211,
731 P.2d 192, 206
(1986).
In support of her argument that a jury instruction on misdemeanor resisting or obstructing
should have been given, Monroe points to the criminal complaint that charged Monroe with one
count of “Battery on a Police Officer or Sheriff – Strike, a Felony, Idaho Code § 18-915(3), 18-
903(b), (punishable from 1 to 5 years in prison and/or $50,000 fine)[.]” The specific details of the
count stated:
That Audrey Rose Monroe, on or about March 19, 2021, in the County of Bingham,
State of Idaho, did actually, intentionally, and unlawfully, strike the person of
Corporal Lawrence [Henrie] against his/her will by kicking the law enforcement
officer in the legs and stomach, where the Defendant knew or had reason to know
that Corporal Lawrence [Henrie] was [a] peace officer, sheriff, or police officer and
did commit said battery while [Henrie] was engaged in the performance of his/her
duties.
(Emphasis added).
Here, as alleged by the State, “obstruction” was not a “means or element” by which Monroe
completed the greater offense. In fact, the criminal complaint does not even allege Monroe resisted
or obstructed the arresting officer “in the discharge, or the attempt to discharge, any duty.” See
ICJI 1260; I.C. § 18-705. This is a required element of a resisting or obstructing charge; however,
the State made no such allegation in its criminal complaint or information. While the facts
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developed at trial may have supported a separate count for resisting or obstructing, under the
pleading theory the charging document did not support a lesser included count. As we have noted,
“[t]he pleading theory does not look at evidence adduced at trial, only the language of the charging
document.” Anderson, ___ Idaho at ___, 530 P.3d at 689 (quoting Weatherly,
160 Idaho at 305,
371 P.3d at 818). As we have said, “[t]he case law addressing both theories is clear that lesser-included charges must be found within the offense’s statutory definition or pleading documents.”
Id. (emphasis in original) (quoting McIntosh,
160 Idaho at 6,
368 P.3d at 626).
Further, when comparing the charging document to the proposed jury instruction, it would
be possible to commit the greater offense without committing the lesser. Without saying as much,
the district court offered a hypothetical supporting this conclusion:
The officer’s not trying to do anything with me; I go up and I punch him. That’s
battery on an officer, but it’s not obstructing, because I wasn’t resisting arrest. . . .
Now, it still could be -- he’d have to be doing something that I obstructed. But if
he’s walking down the street and I walk up and punch him, that’s not obstructing
or resisting, I wouldn’t think.
The district court’s hypothetical illustrates a key difference between the two offenses: an
obstruction would have prevented the officer from completing his duty. While, admittedly, the
charging document includes the performance of the duty, the charging document does not allege
that the strike obstructed or otherwise impeded the performance of the officer’s duties. To expand
on the hypothetical, if charged with both offenses, based on the charging documents, the jury could
have found Monroe guilty of battery on an officer, but not resisting or obstructing. As we have
said, “an offense is not lesser-included if it is possible to commit the greater offense without
committing the lesser.” McIntosh, 160 Idaho at 5,
368 P.3d at 625.
Based on the charging documents, it cannot be said that resisting or obstructing an officer
was “a means or element of the commission” of felony battery on an officer as charged. For this
reason, we find no error in the district court’s conclusion that the resisting or obstructing charge
was not a lesser included offense under the pleading theory. Thus, it was not an error to deny the
resisting or obstructing instruction.
B. The district court did not err in denying the misdemeanor battery on an officer
instruction because there was not a reasonable view of the evidence presented at trial
that would have supported a conclusion that the charged “contact” was not a “strike.”
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The district court agreed with Monroe that misdemeanor battery on an officer is a lesser
included offense of felony battery on an officer. Lesser included jury instructions are governed by
Idaho Code section 19-2132(b). The statute has two threshold requirements before the mandatory
nature of the statute is triggered. Specifically, the statute provides:
The court shall instruct the jury with respect to a lesser included offense if:
(1) Either party requests such an instruction; and
(2) There is a reasonable view of the evidence presented in the case that would
support a finding that the defendant committed such lesser included offense
but did not commit the greater offense.
I.C. § 19-2132(b). The district court’s determination that misdemeanor battery was a lesser
included offense is not challenged on appeal. Additionally, it is undisputed that Monroe requested
the instruction. Thus, we must determine whether the district court erred in concluding that there
was not a reasonable view of the evidence presented supporting a finding that Monroe committed
the misdemeanor battery offense, but not the felony battery offense.
Importantly, while “a defendant is entitled to an instruction where there is a reasonable
view of the evidence presented in the case that would support the theory,” State v. Fields, 168
Idaho 57, 63,
479 P.3d 450, 456 (Ct. App. 2020) (quoting State v. Ward,
135 Idaho 400, 402,
17
P.3d 901, 903 (Ct. App. 2001)), “[a] defendant is not entitled to an instruction dealing with a
defense theory that is not supported by the evidence.” State v. Hall,
161 Idaho 413, 423,
387 P.3d
81, 91 (2016) (citing State v. Johns,
112 Idaho 873, 880–81,
736 P.2d 1327, 1334–35 (1987)).
During Monroe’s opening statement, her counsel did not present a theory of the case that
the contact Monroe made with Cpl. Henrie was merely a touch, as opposed to a strike or kick. In
fact, defense counsel highlighted the anticipated testimony of Monroe’s mother, telling the jury
that she would testify that there was no contact at all. Thus, the district court wisely waited until it
heard all the evidence before ruling on the misdemeanor battery on an officer instruction. During
the evidentiary phase of the trial, Monroe’s mother testified that she did not see Monroe’s foot
make contact with Cpl. Henrie. Moreover, the only time the “touch” theory was even obliquely
addressed by Monroe was during the cross-examination of Cpl. Henrie:
Q [by defense counsel]: You testified that Audrey kicked you while she was
on the ground, and you mentioned you could tell you got kicked in the abdomen
but you didn’t really – couldn’t feel it very well. Can you -- how can you -- I guess
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you also testified that you were kicked in the upper thigh. Can you differentiate a,
I guess, pain on your body from a kick from a not-a-kick?
A [Cpl. Henrie]: Yeah, so I felt her kick me, but the pain, it wasn’t like it
was – there wasn’t a lot of pain. I could tell I had been kicked, but it wasn’t a lot of
pain. So the pain itself – I knew I got kicked. I verbally [sic] saw her kick me in the
leg or the upper thigh and the stomach. It was the pain that I was referring to that
was – I could tell I had been kicked, but it wasn’t like excruciating pain.
Defense counsel continued on this path, attempting to suggest that the contact that occurred was
not a kick:
Q. It was yours, okay. And so at this point, like I said, you testified that you were
pressing charges for battery on an officer. Did you take any pictures of – of where
you say she kicked you?
A. No, I did not.
Q. No? Okay. Did you receive any medical treatment for any injuries, or did you
sustain any injuries?
A. Like I said, I had that charley horse and then a little bit of stomach pain and then
a little bit of redness on my lower legs, but it wasn’t enough to receive medical
treatment, anyway.
Q. So you didn’t ask for medical treatment.
A. No, I did not.
Cpl. Henrie’s responses show that—while not exaggerating the severity of his injuries—they were
certainly more than a mere incidental touch. The quoted excerpts from Cpl. Henrie’s cross-examination constitute the only attempts by the defense to support the theory that a touch—rather
than a kick or a strike—took place. However, the officer’s references to redness and some degree
of pain negated Monroe’s attempts to suggest it was merely a touch.
We have reviewed the record and closely observed the same body cam footage as the
district court and the jury saw. We agree that there is no reasonable view of the body camera
footage that supports the conclusion that Monroe merely touched Cpl. Henrie with her foot but did
not strike or kick him. While much of the altercation takes place beyond the field of view, there is
at least one clear instance of a strike plainly visible in the field of view. When Monroe fell to the
ground, her legs did not aimlessly flail. Rather, from the moment she landed on the ground,
Monroe’s eyes focused squarely on Cpl. Henrie and her kicks at him appear deliberate. The video
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confirms that using controlled and targeted movements, Monroe forcefully strikes Cpl. Henrie with
a kick. We agree with the district court that this is the only reasonable view of the evidence.
Moreover, the statements heard on the video, which the parties stipulated were admissible,
support the district court’s view of the evidence. In addition to hearing Cpl. Henrie’s struggle to
subdue Monroe, he can be heard on the radio stating that Monroe is “kicking” him. For example,
Cpl. Henrie asked Monroe multiple times if she would go to the police car without kicking him.
Each time, with defiant and profane language, Monroe indicated that she was disinclined to
acquiesce to the officer’s requests. For example, as previously noted, Monroe unequivocally
stated: “I will not stand up. I will make you [expletive deleted] hog carry me and I will fight the
whole way.” (Emphasis added). It is abundantly clear from viewing the video that Monroe did just
that.
Inasmuch as the evidence adduced at trial did not support a theory that the contact Monroe
was charged with did not amount to a strike, and “[a] defendant is not entitled to an instruction
dealing with a defense theory that is not supported by the evidence,” Hall, 161 Idaho at 423,
387
P.3d at 91, we conclude that Monroe was not entitled to the misdemeanor battery instruction.
Accordingly, we affirm the district court’s refusal to give such an instruction. In light of this
conclusion, we need not address Monroe’s challenge to the acquittal first rule.
IV. CONCLUSION
For the reasons discussed above, we affirm the judgment of the district court.
Chief Justice BEVAN, Justices BRODY, STEGNER and ZAHN CONCUR.
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