State v. McDermott

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 47642

STATE OF IDAHO, )
)
Plaintiff-Respondent, ) Boise, November 2021 Term
)
v. ) Opinion Filed: March 1, 2022
)
MICHAEL RYAN MCDERMOTT, ) Melanie Gagnepain, Clerk
)
Defendant-Appellant. )

Appeal from the District Court of the First Judicial District of the State of Idaho, Bonner
County. Barbara A. Buchanan, District Judge.

The judgment of the district court is vacated.

Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant Michael
Ryan McDermott. Jenevieve C. Swinford argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent State of
Idaho. Kale Gans argued.

_____________________

STEGNER, Justice.
Michael McDermott appeals his conviction for second-degree murder. McDermott arrived
at his ex-girlfriend’s home late at night in the hopes of obtaining methamphetamine. After finding
another man, Robert Waholi, inside the ex-girlfriend’s recreational vehicle (“RV”), McDermott
slammed his ex-girlfriend’s head twice in her front door, causing her to fall. McDermott exited the
RV and then, a few moments later, Waholi came out carrying a large double-edged axe.
McDermott shot Waholi through the heart, killing him. McDermott eventually confessed to the
police that he had killed Waholi; however, he claimed he was acting in self-defense.
At trial, the district court instructed the jury on McDermott’s self-defense theory, including
an instruction that the jury could not find McDermott acted in self-defense if it found that
McDermott was the “initial aggressor” in the altercation with Waholi. McDermott objected both
to the “initial aggressor” instruction itself as well as the wording of the instruction. The district
court also instructed the jury using Idaho Criminal Jury Instruction 702 on “malice,” the requisite
intent needed for second-degree murder. During its deliberations, the jury asked for clarification

1
on malice, which the district court provided over McDermott’s objection. The jury ultimately
found McDermott guilty of second degree-murder. McDermott timely appealed. For the reasons
discussed below, we vacate McDermott’s conviction and remand the case for a new trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
It is undisputed that, early in the morning of March 15, 2019, McDermott shot and killed
Waholi. Alicia Flynn had previously dated both McDermott and Waholi but was not actively
dating either man in March 2019. The night before the shooting, March 14, 2019, at around 7:00
or 8:00 p.m., Waholi arrived at Flynn’s home—an RV trailer parked at Evergreen Towing. Waholi
and Flynn reconciled, used methamphetamine, and eventually went to bed. That same night,
around 10:00 p.m., Flynn was also communicating with McDermott through text messages. Flynn
was planning to move from Idaho to California, but her RV was not in drivable condition. She
planned to clean up the RV in order to sell it, and McDermott offered to bring Flynn some cleaning
supplies in exchange for drugs.
McDermott arrived at Flynn’s RV hours later, around 3:00 a.m. the morning of March 15,
2019. At that time, Flynn and Waholi were already in bed and about to go to sleep. McDermott
knocked on the trailer door and, though she initially ignored the knocking due to the late hour,
Flynn eventually answered the door. McDermott and Flynn then walked through the grounds of
Evergreen Towing to a different trailer to ask its occupant for drugs. When the occupant of the
other trailer did not answer the door, both McDermott and Flynn walked back to Flynn’s RV.
McDermott was aware that Flynn had a male guest in her RV and, as the two walked back to her
RV, he asked her who it was. Flynn responded, “The Easter Bunny, Santa Claus. It’s none of your
business.” Once they were back at the RV, McDermott opened the door and asked who was inside.
Waholi answered that he was in the RV.
After this exchange, Flynn attempted to get inside the RV but McDermott slammed her
head inside the door twice. 1 As Flynn fell inside the RV and held her head, Waholi got out of bed
and McDermott walked away from the door. While McDermott was outside, Waholi grabbed a
large, double-edged axe and left the RV. McDermott then shot Waholi through the heart, killing
him. The amount of time that elapsed between Flynn’s head getting slammed in the door and the
gunshot is disputed.

1
At trial, McDermott denied doing so; however, he concedes on appeal that he slammed the door on Flynn’s head.

2
 The State obtained an indictment charging McDermott with second-degree murder. 2
McDermott pleaded not guilty, and the case was set for trial. The jury trial began on September
30, 2019, and lasted for five days, ending on October 4, 2019. The crux of the case at trial was
whether McDermott shot Waholi in self-defense. In his opening statement, McDermott’s attorney
told the jury that after Flynn was hit with the door,
[t]he door bounced open. You’ll see the trailer. It’s a flimsy door that opens out,
and [McDermott] kicked it shut again. [McDermott] left. He was walking away.
The door was shut. [Waholi] threw open the door, came at [McDermott] with a
double-headed axe raised over his head. [McDermott] thought he was going to die.
He was going to get that axe in his forehead. He shot him in the heart. He stood his
ground.
When you hear all of the evidence, you will find Michael McDermott exercised his
right to defend himself and find him not guilty of second degree murder.
McDermott testified in his own defense. McDermott testified that everything “happened in
seconds” and that he “thought [Waholi] was going to chop him with an axe.” He further testified
that he believed Waholi was an immediate threat and he thought he was going to die.
After the close of evidence, the parties and the district court took up the issue of the final
jury instructions. The district court stated it
intend[ed] to instruct the jury that the first issue is whether they find that the killing
in this case was justified by self-defense; and if they do, they stop. . . . But if they
do not, if they find that self-defense doesn’t apply, then [] McDermott could be
found guilty of second degree murder, he could be found guilty of voluntary
manslaughter because the [c]ourt finds there was testimony about – you could find
heat of passion – and they could find that the killing was without malice
aforethought. That’s the only difference between second degree murder and
voluntary manslaughter.
Prior to trial, the State had drafted a jury instruction that stated a defendant is not entitled
to claim self-defense if he was the initial aggressor and did not withdraw from the original conflict
or communicate that withdrawal. The instruction stated in full:
If you believe from the evidence beyond a reasonable doubt, that the defendant was
the initial aggressor, then for him to be justified in using self-defense to commit the
homicide, you must find all of the following occurred:
1. The defendant first withdraws from further aggressive action, and;

2
McDermott was also indicted for the failure to report Waholi’s death. The jury found him guilty on that charge (as
well as second degree murder). McDermott moved for a new trial on the charge of failure to report Waholi’s death.
The district court concluded there was a Fifth Amendment self-incrimination issue and set aside the conviction. The
failure to report a death charge has no bearing on this appeal.

3
 2. The defendant communicates his withdrawal from further aggressive action to
the victim by word or act.
The “initial aggressor” is the person who first acts in such a manner that creates a
reasonable belief in another person’s mind that deadly force is about to be used on
that other person. The actual striking of the first blow or inflicting of the first
wound, however, does not necessarily determine who the initial aggressor was.
Arguing, using abusive language, calling a person names or the like unaccompanied
by physical threats or acts does not make a person an initial aggressor and does not
justify physical force.
The district court, however, crafted its own instruction on the initial aggressor theory, “Instruction
No. 22,” which stated: “A person is not entitled to claim self-defense when he or she was the
aggressor or the one who provoked the altercation in which another person is killed unless such
person in good faith first withdraws from further aggressive action.”
McDermott objected to the jury being instructed on the initial aggressor theory because the
testimony had not established McDermott did anything to raise a “threat or specter of deadly force”
against Waholi, thereby rendering the instruction unnecessary. McDermott further argued that, if
the district court was going to overrule his first objection, the State’s proposed instruction stated
the law more clearly. The district court overruled both of McDermott’s objections. The district
court also rejected the State’s proposed instruction (quoted above) and instructed the jury with its
own Instruction No. 22.
During deliberations, the jury sent a question to the district court, which stated, “We are
confused on the definition of malice.” They asked for an additional definition, and further asked if
they could “look up the definition outside [the deliberation] room at home or on the internet.”
McDermott objected to giving the jury any additional instructions, arguing that the jury was
already fully instructed on the applicable law. The district court stated it “would like to give the
jury something,” and opted to instruct the jury over McDermott’s objection. The district court then
read “Instruction No. 29,” which stated that “ ‘[m]alice’ is the intentional doing of a wrongful act
without legal cause or excuse.”
The jury found that McDermott had not acted in self-defense. The jury further found that
McDermott was guilty of second-degree murder. The district court entered a judgment of
conviction on December 3, 2019, sentencing him to 25 years, with ten of those years fixed.
McDermott timely appealed.

4
 II. STANDARD OF REVIEW
“The district court’s decision whether or not to give further instructions in response to
jurors’ questions is discretionary.” State v. Sheahan, 139 Idaho 267, 282, 77 P.3d 956, 971 (2003)
(“Sheahan I”). “Therefore, this Court reviews such a decision under an abuse of discretion
standard.” Id.
When reviewing a lower court’s decision for an abuse of discretion, this Court must
analyze ‘whether the trial court: (1) correctly perceived the issue as one of
discretion; (2) acted within the outer boundaries of its discretion; (3) acted
consistently with the legal standards applicable to the specific choices available to
it; and (4) reached its decision by the exercise of reason.’
State v. Bodenbach, 165 Idaho 577, 591, 448 P.3d 1005, 1019 (2019) (quoting Lunneborg v. My
Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018)).
“ ‘Whether jury instructions fairly and adequately present the issues and
state the applicable law is a question of law over which this Court exercises free
review.’ ” State v. Draper, 151 Idaho 576, 587, 261 P.3d 853, 864 (2011) (quoting
State v. Humpherys, 134 Idaho 657, 659, 8 P.3d 652, 654 (2000)). This Court looks
to jury instructions as a whole, rather than individually, to determine whether they
adequately present the issues and state the applicable law. Id. at 588, 261 P.3d at
865; State v. Adamcik, 152 Idaho 445, 472, 272 P.3d 417, 444 (2012). “ ‘An
erroneous instruction will not constitute reversible error unless the instructions as a
whole misled the jury or prejudiced a party.’ ” State v. Mann, 162 Idaho 36, 43, 394
P.3d 79, 86 (2017) (quoting State v. Zichko, 129 Idaho 259, 264, 923 P.2d 966, 971
(1996)). If there is an omission of an essential element in a jury instruction this
Court employs the harmless error test. State v. Hickman, 146 Idaho 178, 180, 191
P.3d 1098, 1100 (2008).
State v. Campbell, ___ Idaho ___, ___, 481 P.3d 118, 123 (2021).
III. ANALYSIS
On appeal, McDermott argues that multiple erroneous jury instructions rendered his trial
unfair. He specifically challenges Instruction No. 29, the additional “malice” instruction, and
Instruction No. 22, the “initial aggressor” instruction.
A. The district court erroneously instructed the jury on the concept of malice.
We first address McDermott’s challenge to Instruction No. 29, the “malice” instruction.
Instruction No. 29 reads in its entirety: “ ‘Malice’ is the intentional doing of a wrongful act without
legal cause or excuse.” McDermott argues that the district court abused its discretion by providing
any additional instruction on “malice” to the jury because the concept of malice was adequately
covered by the instructions already given. McDermott also contends that the wording of Instruction
No. 29 was an incorrect statement of the law for three reasons. First, McDermott asserts that “the

5
instruction partially turned malice into an act.” Second, McDermott argues that the instruction
improperly utilized the “malice” definition for other crimes under Idaho Code section 18-101(4)
rather than the “malice” definition for murder. Third, McDermott contends, the instruction
“drastically lowered the jury’s requisite finding for the mental state of malice” because it “removed
any connection between malice and the killing.”
The State responds that McDermott did not preserve his challenge to the wording of
Instruction No. 29 and this Court should review that argument under a fundamental error standard
rather than under an abuse of discretion standard. Citing State v. Rogers, 30 Idaho 259, 259, 163
P. 912, 914 (1917) and State v. Aragon, 107 Idaho 358, 363, 690 P.2d 293, 298 (1984), the State
next contends that Instruction No. 29 was a correct statement of the law because the Idaho Supreme
Court has used similar language to describe “malice” and the instruction did not include language
about “an emotional response or bad motive like anger or spite.” The State further asserts that the
district court was within its discretion to provide the jury with additional instructions after the jury
requested additional guidance “on an issue at the crux of the case[.]”
McDermott replies that he preserved his challenge to the wording of Instruction No. 29,
noting that “it is simply not possible for counsel to propose alternative language” “[i]f counsel
believes there is no appropriate instruction to be given[.]” McDermott further asserts that, even if
he did not preserve his challenge, the wording of Instruction No. 29 still rises to the level of
fundamental error. McDermott next challenges the State’s reliance on Rogers and Aragon, arguing
that neither case reflects an accurate statement of the current law.
As an initial matter, we conclude that McDermott adequately preserved his challenge to
the wording of Instruction No. 29. “To state an arguable claim on appeal, ‘both the issue and the
party’s position on the issue must be raised before the trial court for it to be properly preserved[.]’ ”
State v. Barr, 166 Idaho 783, 786, 463 P.3d 1286, 1289 (2020), as amended (June 25, 2020)
(quoting State v. Gonzalez, 165 Idaho 95, 99, 439 P.3d 1267, 1271 (2019)). At trial, McDermott
objected to Instruction No. 29, arguing:
We would be opposed to any further instruction in this case. I think the definition
has already been given to them. I also think that there is no definition other than
the instruction given.
I mean, there’s no definition in the ICJI. So, the Supreme Court felt that they didn’t
have to further define it, and I don’t think it’s appropriate.

6
(Italics added.) As McDermott points out on appeal, it is not possible for counsel to propose
alternative language if counsel believes no instruction should be given. McDermott objected to the
wording of the instruction, as well as the giving of the instruction. Therefore, he preserved his
argument for appeal.
“ ‘In general, it is within the trial court’s discretion to determine whether, and the manner
in which, to respond to a question posed by the jury during deliberations.’ ” Sheahan I, 139 Idaho
at 282, 77 P.3d at 971 (quoting State v. Pinkney, 115 Idaho 1152, 1154, 772 P.2d 1246, 1248 (Ct.
App. 1989)). “ ‘[I]f a jury expresses doubt or confusion on a point of law correctly and adequately
covered in a given instruction, the trial court in its discretion may explain the given instruction or
further instruct the jury but it is under no duty to do so.’ ” Id.
We hold that the district court abused its discretion in providing the jury with the additional
instruction on malice. We conclude that the district court did not “act[] consistently with the legal
standards applicable to the specific choices available to it” because Instruction No. 29 was an
incorrect statement of the law. See Bodenbach, 165 Idaho at 591, 448 P.3d at 1019 (quoting
Lunneborg, 163 Idaho at 863, 421 P.3d at 194). McDermott first argues that the instruction altered
“intent” from an inquiry into a mental state (mens rea) to an inquiry into an action or conduct
(actus reus). We agree. As McDermott points out, the language of Instruction No. 29 specifically
told the jury that malice was “an intentional doing of a wrongful act . . .” (Italics added.) This
wording essentially turned malice into an element of actus reus as opposed to mens rea. Second-
degree murder is a specific intent crime, which requires the State to prove a defendant acted with
the mental intent to kill the victim. State v. Luke, 134 Idaho 294, 300, 1 P.3d 795, 801 (2000).
Under Instruction No. 29, it would be possible to convict a defendant for “intentionally” pulling
the trigger, as McDermott did, without proving that the defendant acted with the mental intent to
kill the victim.
McDermott next argues that Instruction No. 29 incorrectly drew from the definition of
general malice, not the malice required for a specific intent crime. We also find this argument
persuasive. Idaho Code section 18-101(4) provides that “[t]he words ‘malice,’ and ‘maliciously,’
import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established
either by proof or presumption of law.” I.C. § 18-101(4). As McDermott suggests, it is clear under
Idaho case law that the “malice” required for murder is not the general malice definition provided
in Idaho Code section 18-101. Sheahan v. State, 146 Idaho 101, 105, 190 P.3d 920, 924 (Ct. App.

7
2008) (“Sheahan II”). This is because “malice aforethought as used in the homicide statutes
‘imports something more than a “wish to vex, annoy, or injure another person.” ’ ” Id. (quoting
State v. Dillon, 93 Idaho 698, 713, 471 P.2d 553, 568 (1970)). Instead, the correct statutory
definition of malice in a homicide case is found in Idaho Code section 18-4002, which provides:
“Such malice may be express or implied. It is express when there is manifested a deliberate
intention unlawfully to take away the life of a fellow creature. It is implied when no considerable
provocation appears, or when the circumstances attending the killing show an abandoned and
malignant heart.” I.C. § 18-4002.
Here, as the State points out, nothing in Instruction No. 29 suggests that the definition of
malice includes “a wish to vex, annoy, or injure another person.” However, the last part of Idaho
Code section 18-101(4) specifically provides that general malice is “an intent to do a wrongful
act.” Instruction No. 29 uses the last part of section 18-101(4) almost verbatim: “ ‘Malice’ is the
intentional doing of a wrongful act without legal cause or excuse.” (Italics added.)
McDermott finally argues that Instruction No. 29 “removed any connection between
malice and the killing[.]” We agree. Instruction No. 29 requires the jury to find the “intentional
doing of a wrongful act,” but does not specify that the “wrongful act” must be either the specific
act of killing or the intentional act that resulted in the killing.
The State points out that the jury was specifically instructed, via Instruction No. 13, that
“there must exist a union or joint operation of act and intent.” It is true that “[t]his Court looks to
jury instructions as a whole, rather than individually, to determine whether they adequately present
the issues and state the applicable law.” Campbell, ___ Idaho at ___, 481 P.3d at 123. However,
Instruction No. 13 simply connects intent with an act, not the specific act of killing or the
intentional act that resulted in the killing. Instruction No. 29 erroneously divorces malice from the
killing, and Instruction No. 13 does not cure that defect. Therefore, we hold that Instruction No.
29 was an incorrect statement of law, and the district court did not “act[] consistently with the legal
standards applicable to the specific choices available to it[.]” See Bodenbach, 165 Idaho at 591,
448 P.3d at 1019 (quoting Lunneborg, 163 Idaho at 863, 421 P.3d at 194).
Therefore, we hold that the district court abused its discretion when it gave the jury an
additional, improper malice instruction (Instruction No. 29).

8
 B. The erroneous “malice” instruction rendered McDermott’s trial unfair.
McDermott argues that Instruction No. 29 “impermissibly lowered the State’s burden on
an essential element of second-degree murder.” McDermott asserts that, due to Instruction No. 29,
the jury was able to find McDermott guilty of second-degree murder without finding malice
aforethought, an essential element of second-degree murder.
The State responds that any error in giving Instruction No. 29 was harmless because “[j]ury
instructions must be considered together as a whole.” The State points to Instruction No. 15,
arguing that it comports with the statutory definition of malice required for homicide in Idaho
Code section 18-4002. Citing State v. Dillon, 93 Idaho 698, 714, 471 P.2d 553, 569 (1970), the
State asserts that, because the jury was correctly instructed based on the instructions as a whole,
McDermott was not prejudiced by any error in Instruction No. 29. The State further argues that
any error in the wording of Instruction No. 29 was harmless because the jury instructions as a
whole adequately instructed the jury on the applicable law. 3
In reply, McDermott asserts Instruction No. 29 was a “replacement instruction” that caused
“the jury [to] presumably jettison[] the old, confusing one and appl[y] the new one to the facts.”
McDermott points to State v. Luke, 134 Idaho 294, 301, 1 P.3d 795, 802 (2000) and contends that,
because there is uncertainty as to which theory of malice by which the jury convicted McDermott,
any error is not harmless.
[I]n instances where erroneous jury instructions were provided at trial, an
appellate court must first determine whether an improper jury instruction affected
the entire deliberative process. If it did, then a reversal is necessary as the jury’s
deliberations were fundamentally flawed, and any attempted harmless error inquiry
would essentially result in the appellate court itself acting in the role of jury.
However, where the jury instructions were only partially erroneous, such as where
the jury instructions improperly omitted one element of a charged offense, the
appellate court may apply the harmless error test, and where the evidence
supporting a finding on the omitted element is overwhelming and uncontroverted,
so that no rational jury could have found that the state failed to prove that element,
the constitutional violation may be deemed harmless.
State v. Perry, 150 Idaho 209, 224, 245 P.3d 961, 976 (2010). In cases of a partially erroneous
instruction, “the essential inquiry is whether it is ‘clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error.’ ” Id. at 223, 245 P.3d at 975 (quoting

3
We note that the State argues this issue under a fundamental error standard. However, as discussed above, we
conclude that McDermott adequately preserved his argument. Therefore, it is reviewed under the harmless error
standard.

9
Neder v. United States, 527 U.S. 1, 18 (1999)) (italics original to Perry). “ ‘An erroneous
instruction will not constitute reversible error unless the instructions as a whole misled the jury or
prejudiced a party.’ ” State v. Mann, 162 Idaho 36, 43, 394 P.3d 79, 86 (2017) (quoting State v.
Zichko, 129 Idaho 259, 264, 923 P.2d 966, 971 (1996)).
In general, this Court “presume[s] that the jury followed the jury instructions given by the
trial court in reaching its verdict[.]” State v. Carson, 151 Idaho 713, 718, 264 P.3d 54, 59 (2011).
However, only “[w]here the jury instructions, taken as a whole, correctly state the law and are not
inconsistent” will it “be assumed that the jury gave due consideration to the whole charge
contained in all the instructions and was not mislead by any isolated portion thereof.” State v.
Medina, 165 Idaho 501, 510, 447 P.3d 949, 958 (2019) (quoting State v. Draper, 151 Idaho 576,
590, 261 P.3d 853, 867 (2011)) (italics added, additional alteration in original).
Here, it is undisputed that the jury was correctly instructed on express and implied malice
under Idaho Code section 18-4002 via Instruction No. 15. That instruction, which was given to the
jury prior to the start of deliberations, provided in full:
Malice may be express or implied.
Malice is express when there is manifested a deliberate intention unlawfully
to kill a human being.
Malice is implied when:
1. The killing resulted from an intentional act,
2. The natural consequences of the act are dangerous to human life, and
3. The act was deliberately performed with knowledge of the danger to,
and with conscious disregard for, human life.
When it is shown that a killing resulted from the intentional doing of an act
with express or implied malice, no other mental state need be shown to establish
the mental state of malice aforethought. The mental state constituting malice
aforethought does not necessarily require any ill will or hatred of the person killed.
However, Instruction No. 29 provided the jury with an alternative definition of malice
inconsistent with the definition provided in Instruction No. 15. As discussed above, Instruction
No. 29 required merely an “intentional doing of a wrongful act” which transforms malice
aforethought into an element of actus reus rather than mens rea. Instruction No. 15, on the other
hand, explicitly requires an “intentional doing of an act with express or implied malice.” (Italics
added.) Additionally, Instruction No. 29 simply requires a “wrongful act,” but makes no mention
of “killing,” as is required for both express and implied malice under Instruction No. 15. Under

10
Instruction No. 15, express malice requires a finding that there existed “a deliberate intention
unlawfully to kill a human being.” (Italics added.) Implied malice requires that “the killing resulted
from an intentional act” which “was deliberately performed with knowledge of the danger to, and
with conscious disregard for, human life.” (Italics added.) Instruction No. 29 thereby drastically
reduced the burden of proof on the State with respect to the malice element.
These inconsistencies are particularly troubling because Instruction No. 29 was only given
to the jury after it had notified the district court that it was confused about the malice definition
provided in Instruction No. 15. While we do not hold that every erroneous instruction given in
response to a jury question renders a trial presumptively unfair, the circumstances of this case
support such a conclusion. Given the level of inconsistency between the correct malice instruction
(Instruction No. 15) and Instruction No. 29, coupled with the fact that the jury was clearly
struggling with the definition of malice—which was the only difference in whether the jury found
that the State had proven second-degree murder or voluntary manslaughter—we cannot say with
any confidence which instruction the jury followed. If the jury followed Instruction No. 29, which
was certainly the easier instruction by which the jury could find McDermott guilty of second-
degree murder, it is possible that the jury could have found that McDermott “intentional[ly] d[id]
a wrongful act without legal cause or excuse” by slamming Flynn’s head in the trailer door,
pointing the gun at Waholi, or generally firing the gun, none of which would be sufficient to sustain
a conviction for second-degree murder.
Therefore, we cannot conclude it is clear beyond a reasonable doubt that a rational jury
would have found McDermott guilty of second-degree murder absent the erroneous instruction.
Accordingly, we vacate his conviction and remand the case for a new trial.
C. McDermott has failed to establish that the district court erroneously instructed the
jury on whether he was an “initial aggressor.” However, because McDermott is
entitled to a new trial, we provide guidance on remand.
McDermott also challenges Instruction No. 22, the “initial aggressor” instruction. This
instruction reads in its entirety: “A person is not entitled to claim self-defense when he or she was
the aggressor or the one who provoked the altercation in which another person is killed unless such
person in good faith first withdraws from further aggressive action.” McDermott argues that
Instruction No. 22 “did not tell the jury that a defendant only loses the ability to claim self-defense
if he provokes a deadly (or likely deadly) altercation with the victim.” Because Instruction No. 22
“made the intensity, extent, or timing of the provocation or aggression irrelevant,” McDermott

11
contends that the instruction “precluded [him] from claiming the right to self-defense when his
level of provocation or aggression was not deadly force or serious bodily injury.” (Italics in
original.)
The State responds that Idaho “case law and [Idaho Code section 18-4009(1)(c), the
justifiable homicide statute,] imply violence in the first act of aggression” but that there is no
requirement that the act rise to the level of deadly violence. The State points out that Instruction
No. 22 is virtually identical to language from State v. Turner, 136 Idaho 629, 634–35, 38 P.3d
1285, 1290–91 (Ct. App. 2001), which this Court “quoted with approval in Bodenbach,” 165 Idaho
at 584, 488 P.3d at 1012. The State further asserts that McDermott’s argument assumes that the
act of violence needs to be directed at the eventual homicide victim.
In response, McDermott reasserts that Instruction No. 22 “was impermissibly broad”
because “[a]n initial aggressor must engage in a level of aggression or provoke the type of
altercation that raises a threat or fear of deadly force or serious bodily harm, along with an intent
to do such harm.” McDermott argues that, while the case law and self-defense statute may imply
violence as the State suggests, Instruction No. 22 “was not confined to an attack or violence.”
Additionally, McDermott states that “ ‘the intended purpose of [Idaho Code section 18-
4009(1)(c)]’ was to prevent a defendant from claiming self-defense when he created ‘necessity for
the victim’s use of self-defense.’ ” Bodenbach, 165 Idaho at 587, 488 P.3d at 1015. McDermott
contends that this requires that the initial act of violence must be “deadly.” McDermott also points
out that Bodenbach’s quotation of Turner was not a quotation of an approved jury instruction but
of a “general legal principle,” which is not enough to guide a jury. McDermott also clarifies that
he did not “erroneously exclude[] the ‘defense of others’ principle from his initial aggressor
discussion,” as the State contends. Rather, McDermott argues, that principle “has no application
here” because too much time had passed between the slamming of the door on Flynn and the
altercation between McDermott and Waholi. 4
“Jury instructions, when considered as a whole, are meant to fairly and adequately present
the issues and state the applicable law.” Medina, 165 Idaho at 508, 447 P.3d at 956.
An erroneous jury instruction violates due process if it omits a contested element
of a crime or if it relieves the State of the burden of proving every element of the

4
At oral argument before this Court, McDermott conceded that the district court correctly determined that giving the
jury an initial aggressor instruction was appropriate based on the facts of this case but maintained that the wording of
the instruction actually given was not appropriate.

12
 crime beyond a reasonable doubt. State v. Draper, 151 Idaho 576, 588, 261 P.3d
853, 865 (2011). “[T]he State must prove every element of the offense, and a jury
instruction violates due process if it fails to give effect to that requirement.” Id.
(quoting State v. Anderson, 144 Idaho 743, 749, 170 P.3d 886, 892 (2007)).
Id. at 509, 447 P.3d at 957. “ ‘Whether the instruction was erroneous will depend upon how a
reasonable juror would have interpreted the instruction.’ ” Bodenbach, 165 Idaho at 585, 448 P.3d
at 1013 (quoting State v. Skunkcap, 157 Idaho 221, 227–28, 335 P.3d 561, 567–68 (2014)).
Under Idaho law, a homicide committed in self-defense may be justifiable. I.C. § 18-
4009(1)(c). Thus, “the lack of justification, i.e., whether the defendant killed in self-defense, is an
essential element for a murder conviction.” Bodenbach, 165 Idaho at 587, 448 P.3d at 1015. Idaho
Code section 18-4009(1)(c) provides that a person may escape criminal liability for homicides
committed in self-defense so long as the person, “if he was the assailant[,]” “really and in good
faith [] endeavored to decline any further struggle before the homicide was committed[.]”
I.C. § 18-4009(1)(c).
Our case law has previously defined an initial aggressor: “[A] defendant ‘is not entitled to
claim self-defense or justify a homicide when he or she was the aggressor or the one who provoked
the altercation in which another person is killed, unless such person in good faith first withdraws
from further aggressive action.’ ” Bodenbach, 165 Idaho at 585, 448 P.3d at 1013 (quoting State v.
Turner, 136 Idaho 629, 634-35, 38 P.3d 1285, 1290-91 (Ct. App. 2001)). We agree with the State
that, while there is an implication of violence and aggression in the definition of an initial
aggressor, there is no requirement that an initial aggressor act with deadly force.
McDermott asserts that “a person with a political sign in his front yard would lose the right
to self-defense if that sign so provokes his neighbor as to respond with deadly force” and points to
other extreme examples. His argument misses the mark. No reasonable juror would interpret
Instruction No. 22 to conclude a person with an offensive sign in his yard was “the aggressor or
the one who provoked the altercation.” See Bodenbach, 165 Idaho at 585, 448 P.3d at 1013
(“ ‘Whether the instruction was erroneous will depend upon how a reasonable juror would have
interpreted the instruction.’ ”) (quoting Skunkcap, 157 Idaho at 227–28, 335 P.3d at 567–68)
(italics added).
We hold that, under the arguments he presented to this Court, McDermott has failed to
establish the district court erroneously instructed the jury on whether McDermott was the initial
aggressor. However, we note additional substantive problems regarding the district court’s initial

13
aggressor instruction. Because this instruction may play an important part in McDermott’s new
trial upon remand, we take this opportunity to provide guidance to the district court for the
necessary re-trial. See Clark v. Klein, 137 Idaho 154, , 45 P.3d 810 (2002) (“[W]here an appellate
court reverses or vacates a judgment upon an issue properly raised, and remands for further
proceedings, it may give guidance for other issues on remand.”) (quoting Urratia v. Blaine Cnty.,
134 Idaho 353, 359, 2 P.23d 738, 744 (2000)); see also State v. Field, 144 Idaho 559, 573, 165
P.3d 273, 287 (2007).
While we recognize that there is no pattern jury instruction regarding an initial aggressor,
we nevertheless conclude the State’s proposed initial aggressor instruction more accurately
captures the law than the instruction given to the jury in this case (with several notable exceptions)
for various reasons. First, the State’s proposed instruction correctly makes clear that the jury must
find that a defendant is an initial aggressor “beyond a reasonable doubt.” The burden of proof in a
murder trial is on the State: “the State must prove beyond a reasonable doubt that the killing was
not justified.” Bodenbach, 165 Idaho at 587, 448 P.3d at 1015. Instruction No. 22, at the very least,
does not mention a burden of proof and at most, seems to place the burden on the defendant: “A
person is not entitled to claim self-defense when he or she was the aggressor[.]” While the jury
was instructed in Instruction 14 that the State must prove “the defendant acted without justification
or excuse,” it is not clear that the jury understood that the State had to prove McDermott was the
initial aggressor beyond a reasonable doubt.
We further note that the State’s proposed instruction accurately provides that a defendant
found to be an initial aggressor is still able to claim self-defense if he “communicates his
withdrawal from further aggressive action to the victim by word or act.” This communication
requirement is consistent with this Court’s case law. Bodenbach, 165 Idaho at 586–87, 448 P.3d
at 1014–15. Instruction No. 22 contains no such requirement.
Finally, while we have concluded there is no requirement that an initial aggressor act with
deadly violence, we note that there is a requirement for violence. We agree with the State’s
proposed instruction that “[a]rguing, using abusive language, calling a person names or the like
unaccompanied by physical threats or acts does not make a person an initial aggressor and does
not justify physical force.” Thus, while we noted it was not reversible error for Instruction No. 22
to omit a deadly force requirement, we think that the State’s proposed instruction is clearer as to
what the burden of proof is, who bears that burden of proof, and what sort of conduct rises to the

14
level required for an initial aggressor to nevertheless resurrect a claim of self-defense. In sum,
minus the “deadly force” language and inclusion of the possibility that the victim’s action could
be in defense of others, the State’s proposed instruction represents a more accurate statement of
the law as it relates to the potential loss of a self-defense claim by an initial aggressor. Therefore,
should the district court determine an initial aggressor instruction 5 is warranted at McDermott’s
new trial, the following presents a more accurate statement of the law as it relates to an initial
aggressor and whether self-defense would be available to a person who is an initial aggressor:
The defendant has claimed he killed the victim in self-defense. Self-defense is a
defense that is unavailable to a person who is the initial aggressor unless certain
conditions are met. A person is the initial aggressor if he was the one who provoked
the altercation in which another person is killed. Arguing or using abusive language
does not make a person an initial aggressor.
It is the State’s burden to prove the defendant was the initial aggressor. If you
determine the defendant was not the initial aggressor, you may proceed to a
determination of whether he acted in self-defense. However, if you believe from
the evidence beyond a reasonable doubt that the defendant was the initial aggressor,
then he is not entitled to claim self-defense unless you find both of the following
occurred:
1. The defendant first withdrew from further aggressive action, and;
2. The defendant communicated his withdrawal from further aggressive action to
the victim by word or act.
If you find that both occurred, you may proceed to a determination of whether the
defendant acted in self-defense. If, however, you find that either did not occur, the
defendant may not claim self-defense, and you should not consider whether the
defendant acted in self-defense in your determination of the facts of this case.
IV. CONCLUSION
For the reasons stated above, we vacate McDermott’s conviction. The case is remanded for
further proceedings consistent with this opinion.
Chief Justice BEVAN, Justices BRODY, MOELLER and ZAHN CONCUR.

5
Though we discuss only a correct initial aggressor instruction to be used on remand, it is still the duty of the district
court to instruct the jury as to any additional matters of law—for example, mutual combat—supported by the evidence
elicited at the new trial. See I.C. § 19-2132; ICJI 1521.

15