State v. Crombie: A Jury May Not Convict on an Uncharged Offense That Fails Both Lesser-Included-Offense Tests

Introduction

State v. Crombie addresses when a jury may be instructed on an offense that was not separately charged as a purported lesser included offense. Tony Rapley Crombie was charged with attempted strangulation after his former girlfriend, D.D., alleged that he placed his hands around her throat and prevented her from breathing. The State also alleged that Crombie was a persistent violator based on two prior felony convictions.

At trial, D.D. testified that Crombie choked her during an argument. Crombie denied touching her and claimed that she was the aggressor. Although D.D. initially had no visible neck injuries, petechial marks appeared around her jawline approximately thirty-six hours later.

Over Crombie’s objection, the district court instructed the jury that domestic battery with traumatic injury was a lesser included offense of attempted strangulation. The jury acquitted Crombie of attempted strangulation but convicted him of domestic battery with traumatic injury. It later found him to be a persistent violator.

The central questions before the Idaho Supreme Court were whether domestic battery with traumatic injury was legally included within the charged offense, whether Crombie adequately preserved his objection, whether the instructional error was harmless, and what remedy should follow.

Summary of the Opinion

The Idaho Supreme Court unanimously held:

• Domestic battery with traumatic injury is not a lesser included offense of attempted strangulation under either the statutory theory or the pleading theory.
• Crombie adequately preserved the issue by objecting that domestic battery with traumatic injury was not a lesser offense in the case, even though counsel did not expressly identify the statutory and pleading theories.
• The erroneous instruction was not harmless because it gave the jury the only basis on which it convicted Crombie after acquitting him of the charged offense.
• The proper remedy was to vacate the domestic-battery conviction and remand for entry of a judgment of acquittal on attempted strangulation.
• The persistent-violator finding also had to be vacated because the underlying felony conviction was vacated.

The Court did not decide whether Crombie’s discharged drug conviction could serve as a predicate offense under Idaho’s persistent-violator statute.

Analysis

1. Why Domestic Battery with Traumatic Injury Was Not a Lesser Included Offense

The statutory theory

Under the statutory theory, courts compare the legal elements of the two offenses. Relying on State v. Monroe, State v. McIntosh, and Blockburger v. United States, the Court explained that an offense is lesser included only when every element of the lesser offense is necessarily contained in the greater offense. If the greater offense can be committed without committing the proposed lesser offense, inclusion fails.

Attempted strangulation under Idaho Code section 18-923 requires unlawfully choking or attempting to strangle a household member or a person with whom the defendant has or had a dating relationship. The statute expressly provides that injury is unnecessary.

Domestic battery with traumatic injury under Idaho Code section 18-918(2)(a), by contrast, requires:

1. A battery;
2. Against a household member; and
3. The infliction of a traumatic injury.

Because attempted strangulation may be completed without causing any injury, it does not necessarily include the traumatic-injury element. The statutory test therefore was not satisfied.

The pleading theory

Under the pleading theory, the court examines the charging document rather than the evidence presented at trial. The question is whether the alleged facts, if proved, would necessarily prove every element of the proposed lesser offense.

Crombie’s charging document alleged that he placed his hands around D.D.’s throat and choked her. It did not allege that she suffered a traumatic injury. It also alleged in the alternative that D.D. was either a household member or a person with whom Crombie had or previously had a dating relationship. Because domestic battery with traumatic injury specifically requires a household member, proof of a dating relationship alone would not necessarily establish that offense.

Thus, the information omitted two necessary matters: traumatic injury and an allegation necessarily establishing household-member status. The pleading test also failed.

2. Trial Evidence Cannot Create a Third Lesser-Included-Offense Test

The district court relied on State v. Colwell and the evidence presented at trial, including D.D.’s testimony about choking, neck marks, and a changed voice. The Supreme Court clarified that the relevant inquiries are the statutory elements and the charging allegations—not whether trial evidence happened to support the uncharged offense.

Evidence that could support a conviction does not itself authorize submission of an uncharged crime to the jury. The prosecution must either charge the offense or demonstrate that it is necessarily included under one of the two recognized tests.

3. Crombie Preserved the Issue

The State argued that Crombie objected only on evidentiary grounds and did not expressly invoke the statutory or pleading theories. The Supreme Court rejected that narrow view.

Defense counsel expressly stated that domestic battery with traumatic injury was “not a lesser offense in this case.” The district court then compared the offenses’ elements, considered the charging theory and trial evidence, and issued an adverse ruling. The record therefore showed that both the court and counsel understood the substantive dispute.

Drawing on State v. Miramontes, Siercke v. Siercke, State v. Sheahan, and State v. Cuenca, the Court emphasized that an issue is preserved when the specific basis is stated or is apparent from context. An appellate argument may become more refined so long as the underlying issue and the party’s position remain unchanged.

Consistent with State v. Ewing, State v. Frias, and State v. McGarvey, trial counsel need not provide an exhaustive scholarly treatment of every supporting legal theory. Because Crombie objected to treating the offense as lesser included and obtained an adverse ruling, harmless-error review—not fundamental-error review—applied.

4. The Error Was Not Harmless

Under State v. Perry, once Crombie established an objected-to, nonconstitutional error, the State bore the burden of proving beyond a reasonable doubt that the error was harmless.

The State could not satisfy that burden. The jury acquitted Crombie of attempted strangulation and convicted him only of the offense it should never have been permitted to consider. The erroneous instruction therefore did not merely affect an incidental point; it supplied the direct legal basis for the conviction.

The Court contrasted the case with State v. Joy. In Joy, the jury convicted the defendant of the greater offense, making the failure to instruct on a lesser offense harmless because the jury presumably would not have reached the lesser charge. Here, the reverse occurred: the jury rejected the charged offense and convicted only on the improperly submitted alternative.

Applying State v. Campbell and State v. Severson, the Court concluded that the instruction affected the entire deliberative process and prejudiced Crombie. Without the instruction, the attempted-strangulation acquittal would have ended the case without a conviction.

5. The Proper Remedy

The State proposed reducing the conviction to misdemeanor domestic battery, reasoning that the jury necessarily found the elements of that offense. The Court declined to do so. Under State v. Zichko, a party waives an appellate position when it supplies neither sufficient authority nor adequate argument. The State cited no authority authorizing the proposed reduction.

More fundamentally, the jury convicted Crombie of an offense that was not charged and was not legally included within the charged crime. The appropriate disposition was therefore:

• Vacatur of the domestic-battery-with-traumatic-injury conviction;
• Vacatur of the persistent-violator finding and sentence; and
• Remand for formal entry of a judgment of acquittal on attempted strangulation, consistent with the jury’s verdict.

Precedents Cited and Their Roles

Appellate review and jury instructions

State v. Eaton

Established that, on review from the Court of Appeals, the Supreme Court considers that court’s views but directly reviews the district court’s decision.

State v. Severson

Supported de novo review of jury instructions and the rule that reversal is required when an erroneous instruction misleads the jury or prejudices the challenging party.

State v. Rosencrantz

Confirmed that whether one crime is included within another is a question of law subject to free review.

State v. Medina

Provided the threshold inquiry—whether the instruction was erroneous—and required consideration of the instructions as a whole.

State v. Campbell

Directed courts to evaluate instructional error against the totality of the record and to reverse when the error is not harmless.

Preservation and standards of error review

State v. Perry

Supplied the principal distinction between harmless-error review for preserved objections and fundamental-error review for unpreserved claims. It also allocated the harmlessness burden to the State once an objected-to error is shown.

State v. Adamcik

Supported harmless-error review where a defendant properly objected to the law stated in the jury instructions.

State v. Doe (2021-38)

Explained that preservation prevents “sandbagging,” while recognizing fundamental-error review for qualifying unpreserved instructional claims.

State v. Gonzalez

Stated that an appellate court ordinarily will not fault a trial court on an issue it had no opportunity to address.

State v. Miramontes

Explained that preservation may result from presenting argument and authority below or obtaining an adverse ruling.

Siercke v. Siercke

Allowed legal arguments to evolve on appeal when the substantive issue and the party’s position remain the same.

State v. Sheahan

Recognized that an objection is preserved when its specific ground is stated or apparent from context.

State v. Cuenca

Illustrated that counsel need not cite a precise constitutional or doctrinal label when the basis of the objection is contextually clear.

State v. Ewing, State v. Frias, and State v. McGarvey

Reinforced that preservation does not require trial counsel to articulate every possible legal theory supporting a clearly presented objection.

State v. Miller

Was relied upon by the Court of Appeals in applying fundamental-error principles. The Supreme Court did not apply that standard because it concluded that Crombie preserved the issue.

Lesser included offenses

State v. Monroe

Identified the statutory and pleading theories as Idaho’s two methods for determining whether an offense is lesser included.

Blockburger v. United States

Provided the elements test: all elements of the lesser offense must be contained within the greater offense.

State v. McIntosh

Explained both that the greater offense must be impossible to commit without the lesser and that the charging document must necessarily allege the lesser offense under the pleading theory.

State v. Colwell

Was the district court’s principal authority. The Supreme Court concluded that the trial court improperly focused on evidence adduced at trial rather than properly applying the statutory and pleading tests.

State v. Joy

Demonstrated that juries are presumed to follow sequential lesser-offense instructions. Its logic supported reversal because Crombie’s jury reached and convicted on the improper alternative only after acquitting on the charged offense.

Statutory interpretation and remedy

State v. Ingraham and State v. Dunlap

Supported de novo statutory interpretation based on the ordinary meaning of unambiguous statutory language.

State v. Zichko

Supported rejection of the State’s proposed misdemeanor reduction because the State failed to provide authority for that remedy.

State v. Crombie

The Court of Appeals decision had affirmed the conviction and persistent-violator enhancement. On review, the Supreme Court directly examined the district court’s rulings and reached the opposite result on the instructional and preservation questions.

Potential Impact

• Charging practice: Prosecutors should separately charge plausible offenses when each contains elements not necessarily included in the other. Trial evidence cannot cure an omission from the charging document.
• Jury instructions: Trial courts must apply both the statutory-elements test and the charging-document test before submitting an uncharged offense as lesser included.
• Preservation: A clear objection to the substantive legal issue may suffice even if counsel does not identify every doctrinal label. Nevertheless, expressly addressing both lesser-included theories remains the safer practice.
• Harmless error: When the jury acquits on the charged offense and convicts solely on an improperly submitted offense, harmlessness will be especially difficult for the State to establish.
• Sentence enhancements: A persistent-violator finding cannot remain attached to a felony conviction that has been vacated.
• Unresolved issue: The Court left open whether a conviction discharged under Idaho Code section 19-2604 may serve as a predicate for a persistent-violator enhancement.

Complex Concepts Simplified

Lesser included offense

A crime whose required elements are necessarily contained in the charged crime, either because of the statutes themselves or because of the specific allegations in the charging document.

Statutory theory

A comparison of the elements defined by statute. If the greater offense can be committed without committing the proposed lesser offense, the latter is not included.

Pleading theory

An examination of the charging document. The alleged facts must necessarily establish every element of the proposed lesser offense.

Preservation

The requirement that a party give the trial court a fair opportunity to address an issue before raising it on appeal.

Harmless error

An acknowledged legal error that does not justify reversal because the State proves beyond a reasonable doubt that it did not affect the outcome.

Fundamental error

A more demanding form of appellate review generally applied when the defendant did not preserve the issue in the trial court.

Disjunctive pleading

An allegation stated in the alternative, usually with “or.” Here, alleging a household membership “or” a dating relationship meant the State did not necessarily have to prove household-member status.

Vacatur

The legal nullification of a conviction, finding, or sentence.

Persistent violator

An Idaho sentencing status based on qualifying prior felony convictions that can substantially increase punishment for a current felony.

Conclusion

State v. Crombie establishes that a jury may not be given an uncharged offense merely because the trial evidence could support it. The offense must qualify as lesser included under the statutory-elements test or the charging-document test. Domestic battery with traumatic injury failed both because attempted strangulation does not require injury and the information did not necessarily allege either traumatic injury or household-member status.

The decision also adopts a practical approach to preservation: counsel need not recite every doctrinal theory when the substance of the objection is clear and the trial court rules on it. Because the improper instruction directly produced Crombie’s only conviction, the error was not harmless. The conviction, sentence, and persistent-violator finding were therefore vacated, and the case was remanded for entry of an acquittal on attempted strangulation.