SCHWARTZMAN, Chief Judge
Steven Paul Young (Young) appeals from his conviction for felony injury to child, I.C. § 18-1501(1). We reverse.
I. FACTS AND PROCEDURE
Michael Young (Michael), Young's son, was born three months premature in 1989.
Michael was born blind, cannot speak and is developmentally delayed, but does have the ability to communicate needs, emotions and pain. Young and Michael's mother eventually separated and Michael came to live with Young. Later, in 1996, Young married Catherine Duncan.
On the night of July 2, 1998, Duncan told Young, who was in his workshop at the time, that Michael had soiled his diaper and needed to be cleaned. Young went into the house and began cleaning Michael. Young testified that as he cleaned Michael in the bathtub, he was momentarily distracted by a friend who was leaving the house. Young testified: "I didn't realize the water was fairly hot but Michael was just sitting there, you know, so I didn't think too much about it." Later, with the help of another child who lives in the home, Young put Michael to bed.
The next morning, one of the other children living in the house noticed that Michael's feet were swollen. Young examined Michael and saw that the tops of his feet were blistered.
Young retrieved a first-aid kit from his workshop and treated Michael's feet. When Young took off Michael's diaper, he discovered that his buttocks had been burned too, but the blisters had already popped. He attempted to treat these burns as well. Young continued to treat Michael's burns with antibiotics and aloe vera.
Finally, on July 5 at about 11:00 p.m., Young asked his sister, Michelle Sweeney, to come to Nampa from Idaho City and take Michael to the hospital because he had been burned. Sweeney took Michael to St. Luke's Hospital in Boise on July 6, at approximately 3:00 p.m. Later that same day, Michael was transferred to a Salt Lake City burn center. Michael had suffered full-thickness or third degree burns. The treating physician diagnosed the burns as a "typical immersion burn." The doctor later testified that the pattern of the burn indicated that the injury was not an accident and he believed Michael had been held down in the scalding water. Michael eventually received skin grafts on the tops of his feet and on his buttocks. Michael also developed a urinary tract infection resulting from the delay in caring for the burns.
Young was charged with felony injury to a child, I.C. § 18-1501(1). Pursuant to a plea agreement, the state agreed to amend the charge so that it was based upon Young's "failure to take the child for medical treatment after the child was burned." Young pled guilty, but later filed a motion to withdraw his plea. The district court allowed Young to withdraw his guilty plea and enter a plea of not guilty. The district court reinstated the original information which alternatively alleged that Young "unlawfully and willfully caus[ed] or permit[ted] the child to suffer by failing to take the child to medical treatment after the child was burned and/or burn[ed] the child in hot water"; "inflict[ed] upon the child unjustifiable physical pain or mental suffering, by failing to take the child for medical treatment after the child was burned and/or burn[ed] the child in hot water"; or "caus[ed] or permit[ted] the person or health of the child to be injured, while having care or custody of the child, by failing to take the child to medical treatment after the child was burned and/or burn[ed] the child in hot water."
The jury, by special verdict, subsequently found Young guilty of "permitting Michael Steve Young to suffer unjustifiable physical pain or mental suffering by failing to provide reasonably necessary medical treatment after the child was burned." The jury left blank that portion of the verdict form which asked if Young was guilty of "willfully inflicting upon Michael Steve Young unjustifiable physical pain or mental suffering." The district court imposed a unified sentence of six years, with eighteen months fixed. Young appeals from his judgment of conviction, claiming, among other things, that the district court improperly instructed the jury on the law, failed to instruct the jury on misdemeanor injury to child, and improperly admitted photographs of the victim.
II. THE DISTRICT COURT ERRED BY GIVING JURY INSTRUCTIONS THAT WERE APT TO MISLEAD AND/OR CONFUSE THE JURY
A. Standard Of Review
"When reviewing a district court's decision to give a particular jury instruction our standard of review is one of free review." State v. Velasquez-Delacruz, 125 Idaho 320, 323, 870 P.2d 673, 676 (Ct.App. 1994). Free review requires that this Court determine whether "the jury was properly and adequately instructed and ascertain whether the instructions, considered as a whole, fairly and adequately present the issues and state the applicable law." Id. "Reversible error only occurs when an instruction misleads the jury or prejudices a party." Id.
B. Analysis
Jury instruction number 10 instructed the jury that in order for Young to be guilty it had to find that he either "willfully inflicted" unjustifiable physical pain or mental suffering on Michael or "willfully caused or permitted Michael . . . to suffer unjustifiable physical pain or mental suffering by failing to provide Michael . . . with reasonably necessary medical treatment after the child was burned." Jury instruction number 13 defined "willfully" for the jury in accordance with I.C. § 18-101, and stated:
The word "wil[l]fully," when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or make the omission referred to. It does not require any intent to violate the law, or to injure another, or to acquire any advantage.
While purporting to generally define "willfully" where it appears in Title 18 of the Idaho Code, I.C. § 18-101 prefaces the standard definition with the disclaimer, "unless otherwise apparent from the context." Moreover, we recently held that "the mental state that is required for the commission of a particular offense is determined by the language of the statute defining that offense." State v. Crowe, 135 Idaho 43, 47, 13 P.3d 1256, 1260 (Ct.App. 2000) (holding that a jury instruction was improper where it diminished the State's burden on the mental element of the crime and in effect modified the mens rea element); compare State v. Montgomery, ___ Idaho ___, 17 P.3d 292 (2001).
Our analysis begins with California law, which has a nearly identical injury to child statute and utilizes the same term "willfully." The California penal code defines "willfully" exactly the same as I.C. § 18-101 and includes the same "unless otherwise apparent from the context" exception. Nevertheless, in People v. Beaugez, 232 Cal.App.2d 650, 658, 43 Cal.Rptr. 28 (Cal.Ct.App. 1965), the court construed "willfully," as used in California's injury to child statute, to include "purposeful" or "with knowledge of consequences." The Beaugez court went on to construe the statutory provision as a whole to condemn the intentional placing of a child, or permitting a child to be placed, in a situation in which serious physical danger or health hazard to that child is reasonably foreseeable. This is the construction of intent which the context of the statute as a whole justifies. Id.
The Beaugez Court did not strictly find that this interpretation was one that was otherwise apparent in the context of the injury to child statute. Rather, the court felt that this interpretation was "within that [standard] definition." Beaugez, 232 Cal.App.2d at 657. (Emphasis added.)
The Beaugez definition of "willfully" was embraced by the California Supreme Court in People v. Sargent, 970 P.2d 409, 412, n. 3 (Cal. 1999). Furthermore, in Sargent, one justice further explicated his opinion of the word "willfully," as specifically used in the phrase "willfully permit," stating:
Notably, the Sargent majority opinion addressed the proper mens rea instruction for cases where the defendant is charged with willfully inflicting pain or suffering. Sargent, 970 P.2d at 410.
[A defendant] must "cause or permit" the child "to suffer . . . unjustifiable physical pain or mental suffering" for the purpose of bringing about, or allowing, such a result. The reason is this: The adverb "willfully" modifies the verbs "causes" and "permits"; the object of those verbs is not an act or omission that happens to result in the child "suffer[ing] . . . unjustifiable physical pain or mental suffering," but rather that very result itself.
(Emphasis in original). Sargent, 970 P.2d at 422 (Mosk, J., concurring). See also People v. Vandiver, 283 N.E.2d 681, 684 (Ill. 1971) (the court noting that willfully, in modifying permit, "requires more than a mere voluntary doing of an act from which injury to health may result"). Furthermore, not long after the Beaugez opinion, the California standard jury instruction dealing with injury to child was accordingly amended and currently states: "The word `willfully,' as used in this instruction, means `with knowledge of the consequences' or `purposefully.'" CALJIC 9.37 (6th ed. 1996). See also CALJIC 16.170.
We further note, however, that California has specifically adopted a criminal negligence standard for injury to child cases involving a defendant charged with willfully permitting a child to suffer unjustifiable physical pain or mental suffering. CALJIC 9.37. Criminal negligence is defined as such negligence as amounts to a wanton, flagrant or reckless disregard of consequences or willful indifference of the safety or rights of others. See State v. Hintz, 61 Idaho 411, 102 P.2d 639 (1940); State v. Mahan, 57 Idaho 240, 65 P.2d 156 (1937). We decline to adopt a similar standard at this time.
The totality of the instructions given to the jury in this case only instructed that the jury had to find that Young intended the omission of not taking Michael to the hospital after he was burned, without any reference to Young's purpose or knowledge of the consequences. This was error. To sustain a conviction, Young had to "purposefully" or "with knowledge of the consequences" permit Michael to suffer unjustifiable physical pain or mental suffering, i.e., understand that by refusing to seek medical help for his son, he willfully permitted Michael to suffer unjustifiable physical pain or mental suffering. This reading of "willfully" is the only one that will suffice in the context of modifying the term "permit," as evidenced by the post-Beaugez amendments made to California's standard jury instructions.
Our opinion today, striving to ascertain the level of mens rea implied in the phrase "willfully permit," does not make injury to child, under such permutation, a specific intent crime. A defendant charged with "willfully permitting" a child to suffer unjustifiable physical pain or mental suffering need not be shown to have specifically intended that the subject child suffer. However, the state must demonstrate beyond a reasonable doubt that the defendant at least had "knowledge of the consequences" of his or her actions or omissions.
Jury instruction number 13 specifically instructed the jury that the term "willfully," as used in I.C. § 18-1501(1), "does not require any intent . . . to injure another." However, "willfully permitting a child to suffer unjustifiable physical pain or mental suffering" requires at the very least that a defendant have knowledge that the child will suffer such unjustifiable physical pain or mental suffering as a result of his action or omission. In this way, instruction numbers 10 and 13, when read together, are misleading and confusing. "When contradictory instructions are given to a jury on a material issue, the error is prejudicial." State v. Andrus, 118 Idaho 711, 716, 800 P.2d 107, 112 (Ct.App. 1990). "We have considerable faith in juries, but we cannot expect them to discern the correct implications necessary to reconcile contradictory instructions given by the court, all of which are expected to be given equal weight." Id.
CALJIC 9.37 further defines unjustifiable physical pain or mental suffering as "the infliction of pain or suffering which is not reasonably necessary or is excessive under the circumstances." This term was not defined for the jury in Young's case.
We conclude that the term "willfully," as used in the context of "willfully permit," has a broader meaning than the standard language of I.C. § 18-101. We hold that the term "willfully," when describing the mens rea necessary for a conviction under the "willfully permit" prong of I.C. § 18-1501(1), requires more than "simply a purpose or willingness to commit the act or make the omission referred to," i.e., in this case, the failure to take Michael to the hospital for three days. Rather, the state was required to show that Young had knowledge of the consequences that his son would suffer "unjustifiable physical pain or mental suffering" as a result of his omission. As in the recent Crowe case, supra, the state's burden on the mental element of the charged crime was diminished by the jury instructions, thus allowing the jury to convict Young without adequate proof of his criminal intent.
Even the state, in its initial briefing, erroneously argues that Young only need be shown to have willfully omitted taking Michael to the hospital in order to be in violation of I.C. § 18-1501(1). Yet, in its brief on petition for rehearing, the state acknowledged that, "mere negligence or mistaken judgment does not make an act or omission willful." (Emphasis added.)
Accordingly, we are constrained to conclude that it was error for the trial court to give the I.C. § 18-101 definition of "willfully" without further clarification, because such does not fairly and adequately state the applicable law relative to the requisite mens rea. Young's conviction for felony injury to child must, therefore, be reversed.
III. OTHER ISSUES ON APPEAL
For purposes of guidance on remand, we will address two other issues raised by Young on appeal.
A. Admission Into Evidence Of Photographs Of The Victim
Young sought to exclude photographs of Michael's injuries because he believed they were irrelevant and their probative value was substantially outweighed by their prejudice. Whether the probative value of relevant evidence is substantially outweighed by the danger of unfair prejudice is a discretionary matter that will be disturbed only if the appellant demonstrates that the district court abused its discretion. State v. Enno, 119 Idaho 392, 406, 807 P.2d 610, 624 (1991). Young challenges the district court's admission of those photographs.
Young claims the photos were irrelevant because they did not accurately depict Michael's injuries as they existed while Michael was in his care. We disagree. The district court specifically noted, "We have two witnesses who have said these are accurate pictures at the time they were taken. I think it is for cross-examination to establish that the conditions that may have existed two days before are different than these pictures." Furthermore, the photos of Michael's burns were relevant evidence because they tended to make the existence of a fact of consequence more or less likely, i.e., that Michael was in need of medical care and was suffering during such time that professional care was delayed.
The district court recognized that there was a possibility of an emotional response to these photos, but nevertheless found that the probative value of these photos was not substantially outweighed by such considerations. The court called the pictures "heart-rendering" and concluded that they could create "a lot of sympathy on the jury." However, the district court ruled the photos admissible after specifically weighing the probative value of the evidence against the threat of unfair prejudice. Young has not met his burden of showing that this decision was an abuse of discretion. The record is clear that the district court engaged in the exact type of balancing envisioned by I.R.E. 403.
B. Young's Request For An Instruction On The Lesser Included Offense Of Misdemeanor Injury To Child
Young asserts that the trial court should have given a requested included offense instruction on misdemeanor injury to child. We agree with this contention. Here again, we must remain cognizant of the specific circumstances of Young's conviction under I.C. § 18-1501(1). Young was convicted of "permitting Michael . . . to suffer unjustifiable physical pain or mental suffering by failing to provide reasonably necessary medical treatment after the child was burned." (Emphasis added.) Young was not convicted of inflicting injuries upon Michael.
Idaho Code § 19-2132 provides that a "court shall instruct the jury with respect to a lesser included offense if: . . . (2) there is a reasonable view of the evidence presented . . . that would support a finding that the defendant committed such lesser included offense but did not commit the greater offense." Misdemeanor injury to child is a "statutory" lesser included offense of felony injury to child because a defendant cannot commit the felony without satisfying the elements of the misdemeanor in the process. State v. Curtis [Curtis II], 130 Idaho 522, 524, 944 P.2d 119, 121 (1997). In other words, it is impossible to commit the greater offense without having committed the lesser offense. Id. The sole distinction between felony injury to child and misdemeanor injury to child is the degree of harm the child is exposed to as a result of the defendant's conduct or omissions. If the circumstances or conditions are "likely to produce great bodily harm or death," then a defendant is guilty of committing the felony.
In the instant case, there is no doubt that Michael suffered great bodily harm at the initiation of his injuries. Furthermore, our review of the record demonstrates that the district court focused on the infliction of Michael's injuries when attempting to determine if Michael was placed in danger of great bodily harm or death by Young's conduct. However, there was little evidence presented concerning the exacerbation or worsening of Michael's injuries as a result of Young's three-day delay in securing professional medical attention for Michael, and that by failing to take Michael to the hospital after he was burned, Young placed Michael in circumstances likely to produce great bodily harm or death. It is possible that Michael could have continued to receive homeopathic care from Young for additional time without being exposed to significantly greater bodily harm or death. Again, Young was not convicted of inflicting burn injuries upon Michael; rather, he was convicted of only permitting Michael to suffer unjustifiable physical pain or suffering by failing to take him to the hospital.
Moreover, the approved Idaho Criminal Jury Instructions (I.C.J.I.) 1243 and 1244, concerning the crime of injury to child under I.C. § 18-1501, dictate that a trial court instruct a jury on the necessary elements of the general crime of injury to child and only then, if the defendant is determined to be guilty, should a jury be confronted with the issue of whether "the offense occurred under circumstances or conditions likely to produce great bodily harm or death to the child." I.C.J.I. 1244. In this way, the existence of such circumstances is treated as a special finding of fact for the jury, to be made only after a defendant is found guilty of injury to child generally. See State v. Enyeart, 123 Idaho 452, 455, 849 P.2d 125, 128 (Ct.App. 1993) (holding that "the combined circumstances and conditions present provided sufficient evidence for the jury to decide if the combination created the likelihood a child could suffer great bodily harm").
In this case, the district court instructed the jury on several alternate theories under which Young could be guilty of the crime of injury to child. However, these alternatives all included the element, "under circumstances likely to produce great bodily harm or death," which limited the jury to convicting Young of felony injury to child and removed the misdemeanor option. Although not reversible error under State v. Curtis [Curtis I], 130 Idaho 525, 527-28, 944 P.2d 122, 124-25 (Ct.App. 1996), we conclude that there is a reasonable view of the evidence which would support the giving of the misdemeanor injury to child instruction to let the jury decide this material issue of fact, i.e., whether Young's omission-failing to take Michael to the hospital was made under circumstances or conditions likely to produce great bodily harm or death to Michael.
IV. CONCLUSION
Young's conviction for felony injury to child is reversed and the sentence is vacated. The case is remanded for a new trial consistent herewith.