dissenting.
I respectfully dissent to part I of this Court’s opinion because I believe that Cates did not “use” a deadly weapon in the commission of the battery (the “rape” with which he was charged) within the meaning of I.C. § 18-907. In my view, the aggravated battery statute requires that the deadly weapon must be the instrumentality by which the battery is committed. The majority view, on the other hand, makes no distinction between a threat to use a deadly weapon and the actual use of a deadly weapon in committing the battery.
As noted in the majority opinion, Cates was not charged with aggravated battery. Rather, the trial judge determined that, considering the evidence produced by the state, Cates could be found guilty of the lesser included offense of aggravated battery (I.C. § 18-907) or “simple” battery (I.C. § 18-903). For reasons not apparent in the record, the jury acquitted Cates of rape but found him guilty of aggravated battery.
Aggravated battery, as the statute provides, can be committed in various ways, but under the evidence in this case the jury was instructed that in order to convict Cates of aggravated battery the state needed to prove that
the defendant willfully, and unlawfully, and intentionally used force or violence upon the person of [the victim]____ [T]he defendant used a deadly weapon.
The jury was not instructed that they must find a deadly weapon was used “in committing battery.’’ Nor were they told that the “battery” meant the acts which were connected to the alleged rape. Cates did not object to this instruction. Although aggravated battery was deemed to be an included offense to the charged crime of rape, the jury was not instructed that aggravated battery could be found only from the evidence relating to the alleged rape. As a result, the jury was free to apply the aggravated battery instruction to other acts of simple battery which had preceded the “rape” and which had nothing to do with the purported rape.
The victim testified that Cates displayed the gun once shortly after the two men forced their way into the apartment. Cates threatened to shoot her if she attempted to warn her boyfriend when he returned. This threat occurred about the same time as when the victim was seized and bound in the living room. A short time later Cates slapped her because he did not like the way she was answering questions about Cates’ daughter. These acts of battery occurred before the victim was taken to the bedroom. These acts had no connection with the rape. Cates was not charged with committing any battery except the rape, yet the loose aggravated battery instruction allowed the jury to conclude that Cates had “used” a firearm in committing either one of these uncharged batteries. The jury could have found Cates guilty of an “aggravated” battery which under the evidence was not an included offense of the crime of rape.3 Nevertheless, my dissent is based on the evidence showing how and when the gun was “used.”
My colleagues recognize that the state’s evidence showed the gun was displayed to the victim only once, well before the “rape” occurred. However, they take the position — and it is not unreasonable — that once a threat is made with a gun, the threat lingers as long as the victim is confronted with the possibility that the weapon is still present and can be used by the perpetrator. *96Essentially this is the way they reason the gun was “used” in the commission of the alleged rape.
I question whether such a broad meaning of the word “use” was intended by I.C. § 18-907. The statute says:
A person commits aggravated battery who, in committing battery:
(a) Causes great bodily harm, permanent disability or permanent disfigurement; or
(b) Uses a deadly weapon or instrument; or
(c) Uses any vitriol, corrosive acid, or a caustic chemical of any nature; or
(d) Uses any poison or other noxious or destructive substance or liquid. [Emphasis added.]
I believe it is clear that the deadly weapon, instrument or chemical must actually be the instrumentality employed to commit the battery. In the case of a firearm it would be using the gun to shoot, to club, or even to physically prod the victim with the weapon. This is in contrast to the manner in which the weapon was employed by Cates. By its mere display or exhibition, the role of the handgun was limited to that of a threat to the victim. If the deadly weapon was merely displayed in making a threat— as was the situation here, to create a well-founded fear that violence was imminent— the conduct amounts to “aggravated assault” under I.C. § 18-901 and 18-905.
After the jury returned its verdict finding Cates guilty of the crime of aggravated battery the jurors were instructed to separately find whether Cates “displayed, used, threatened, or attempted to use a firearm ... while committing the crime.” This finding would determine whether the court was authorized to sentence Cates “to an extended term of imprisonment.” I.C. § 19-2520 (1986 Idaho Sess. Laws, ch. 319 § 2, p. 784). It is immediately apparent that, for the purposes of this statute, the Legislature believed the word “used” had the same limited meaning that was intended in the aggravated battery statute. If the Legislature believed the word “used” carried the broad meaning which the majority attributes to the word, there would be no purpose in adding the words “displayed,” “threatened” or “attempted to use” to the firearm enhancement statute.
Having been acquitted of rape Cates cannot be retried on that charge. For reasons stated I would reverse the conviction of aggravated battery. It is apparent that the evidence is sufficient to convict Cates of the included offense of aggravated assault. His threatening display of a firearm would make the sentencing enhancement statute applicable to that crime as well. See I.C. § 19-2520.
. I do not wish to mislead the reader. Certainly Cates committed a battery upon the victim which would have been an included offense of the alleged rape. Both the victim and Cates testified that he tied the victim to the bed, undressed her, and laid down on her. Also, as the majority states, the victim testified that Cates threatened her during these acts although no mention was then made of any gun.