Icji 929 lewd and lascivious conduct instruction no




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ICJI 929 LEWD AND LASCIVIOUS CONDUCT
INSTRUCTION NO.
In order for the defendant to be guilty of Lewd and Lascivious Conduct, 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 of victim],]


[or]
[the defendant [name] involved [name of victim] in an act of [bestiality] [or] [sado-masochistic abuse]]
4. [name of victim] was a child under sixteen (16) years of age, and

5. 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 words "lewd and lascivious" do not need to be defined for the jury. State v. Herr, 97 Idaho 783, 554 P.2d 961 (1976); and State v. Greensweig, 102 Idaho 794, 641 P.2d 340 (Ct. App. 1982).
The statute makes it illegal to do certain acts upon the body "of a minor or child under the age of sixteen (16) years." The meaning of this phrase is unclear. It may be that the drafter of the statute believed that an emancipated person under the age of majority would not be a minor, so that the statute was intended to protect all un-emancipated minors and everyone who is under the age of sixteen years. Another interpretation is that the words "under the age of sixteen (16) years" were intended to modify both "minor" and "child." The statute is generally applied in Idaho only if the victim is under sixteen years of age.
Arranging a meeting place and arriving there at the prearranged time are sufficient to constitute a “substantial step” in furtherance of the crime of attempted lewd conduct with a minor. State v. Glass, 139 Idaho 815, 87 P.3d 302 (Ct. App. 2003).
Under I.C. § 19-1414, the precise time at which the offense was committed need not be stated in the indictment; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material offense. Time is not a material element of the crime of lewd and lascivious conduct with a minor. State v. Jones, 140 Idaho 41, 89 P.3d 881 (Ct. App. 2003).
Violation of I.C. § 18-1506 is an included offense when an individual is charged with violation of I.C. § 18-1508. State v. O’Neill, 118 Idaho 244, 796 P.2d 121 (1990).


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