Opinion
No. 106,624.
2013-08-29
STATE of Kansas, Appellee, v. Fredi MARTINEZ–HERRERA, Appellant.
Appeal from Finney District Court; Philip C. Vieux, Judge. Reid T. Nelson, of Capital and Conflicts Appellate Defender Office, for appellant. Tamara S. Hicks, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Finney District Court; Philip C. Vieux, Judge.
Reid T. Nelson, of Capital and Conflicts Appellate Defender Office, for appellant. Tamara S. Hicks, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Fredi Martinez–Herrera appeals from his convictions for kidnapping and aggravated intimidation of a witness. The charges stemmed from a domestic violence incident.
The State charged Martinez–Herrera with kidnapping (taking by force, threat, or deception with intent to facilitate flight or commission of any crime) and attempted to charge him with aggravated intimidation of a witness but omitted the aggravation element (preventing a victim from making a police report). But the district court instructed the jury on a different theory of kidnapping (taking by force, threat, or deception with intent to inflict bodily injury or terrorize the victim) and aggravated intimidation of a witness (preventing a victim from making a police report using an expressed threat of violence).
Martinez–Herrera's argument that there was insufficient evidence of kidnapping fails because the State presented evidence that he took Adriana Rivas–Ochoa by force with intent to facilitate the commission of aggravated intimidation of a witness. His argument that the district court committed reversible error in instructing the jury also fails because the jury would not have reached a different verdict had the jury been properly instructed, and he was not misled in the preparation and presentation of his defense.
The State charged Martinez–Herrera with felonies ofkidnapping, aggravated battery, aggravated intimidation of a witness, two counts of criminal threat, and misdemeanors of criminal restraint and domestic battery. Count I of the information charged Martinez–Herrera with kidnapping as follows:
“That on or about the 24th day of September, 2010, in Finney County, Kansas, Fredi Martinez–Herrera, then and there being present did unlawfully, feloniously and intentionally take or confine a person, to wit: Adriana Elizabeth Rivas–Ochoa, accomplished by force, threat or deception and with the intent to hold said person to facilitate flight or the commission of any crime, in violation of K.S.A. 21–3420(b), Kidnapping, a severity level 3 person felony.” (Emphasis added.)
Count III charged him with aggravated intimidation of a witness as follows:
“That on or about the 24th day of September, 2010, in Finney County, Kansas, Fredi Martinez–Herrera, then and there being present did unlawfully, knowingly and maliciously prevent or dissuade or attempt to prevent or dissuade a victim, witness or person acting on behalf of a victim or a witness, Adriana Rivas–Ochoa, from ... making any report of the victimization of a victim to any law enforcement officer, prosecutor, probation officer, parole officer, correctional officer, community correction services officer or judicial officer, in violation of K.S.A. 21–3833, Aggravated Intimidation of a Witness or Victim, a severity level 6 person felony.”
At the preliminary hearing, the State asked the district court to bind Martinez–Herrera over for kidnapping based on his “t[aking] her from the neighbor's house, dragg[ing] her back across the street to their trailer so he could continue beating her,” and for aggravated battery based on his “hitting her in the face with the handle of the machete.” The court found probable cause for all the charges, including kidnapping “for the purpose of continuing the beating,” aggravated battery “that occurred prior to her escaping from the house,” and aggravated intimidation of a witness based on evidence that Martinez–Herrera threatened to kill Rivas–Ochoa if she contacted police. Martinez–Herrera pled not guilty.
A jury trial was held at which the following evidence was presented. Martinez–Herrera and Rivas–Ochoa lived together in Garden City, Kansas, with Rivas–Ochoa's two children. Before Rivas–Ochoa left for work on September 23, 2010, Martinez–Herrera told her he wanted to grab her by the neck, slam her face into the faucet, take her eyes out, and kill her. When she got home from work early the next morning, he started hitting her in the face and dragged her into the bedroom by her hair. Her children remained in the living room but did try to open the bedroom door at one point. In the bedroom, Martinez–Herrera pushed Rivas–Ochoa onto the bed and continued to hit her face with his hand, clothes hangers, and a tennis shoe. He told her he was going to kill her. Then he hit her in the face with the handle of a machete, cutting his finger on the blade. She helped him by covering his bleeding finger with a towel.
While Martinez–Herrera was fainting from his wound, Rivas–Ochoa ran out of their trailer to get help because she was scared. She yelled and screamed to get somebody's attention but no one came outside. Before she reached her neighbor's front door, Martinez–Herrera dragged her back to the trailer by her hair and locked the door. As she was being dragged inside, she misdialed 911 from her cell phone. Back in the trailer, he called her a “bitch” and said that he was not going to go to jail because of her. He also said that if she called law enforcement and he went to jail, he would get out and kill her. The only evidence that Martinez–Herrera struck Rivas–Ochoa after they returned to the trailer came from Martinez–Herrera himself. He testified that he “kicked her ass.” Rivas–Ochoa, however, testified that he “wanted to hit” her but she said, “No more,” because his finger was bleeding profusely, so he just “kept insulting” her.
Later, Rivas–Ochoa found Martinez–Herrera a ride to the hospital and freely accompanied him there. She did not call the police because she was afraid he would come after her if he went to jail. When she returned from the hospital, she called her neighbor crying-she was upset, very nervous, and distraught. She told her neighbor she had been beaten up by Martinez–Herrera, was scared for her life and her children, and did not want to call law enforcement because he had threatened to kill her if she did. Her neighbor called the police based on this information. Rivas–Ochoa's injuries included a knot or swelling on her jaw and bruises on her eyes and forehead. She also had a swollen knee and scratches and bruises on her neck.
At the close of its case, the State claimed that it charged the first hair pulling incident as kidnapping and the second hair pulling incident as domestic battery. The district court, however, found that two charges involved multiple acts: kidnapping was supported by evidence of Martinez–Herrera “pulling her by the hair back to the bedroom early that morning or pulling her back to the trailer by the hair,” and aggravated battery was supported by evidence of “the beating that took place back in the bedroom” and other “sundry acts.” The court also granted ajudgment of acquittal on the criminal restraint and domestic battery charges because they were “absorbed by” the aggravated battery charge.
At the jury instruction conference, the district court decided to strike the charged “facilitate flight or the commission of any crime” theory from the kidnapping jury instruction. Defense counsel did not object. The jury was given the following kidnapping instruction:
“In Count One, the defendant is charged with the crime of kidnapping. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. The defendant took or confined Adriana Rivas–Ochoa by force, threat or deception;
“2. This act was done with the intent to hold such person to inflict bodily injury or to terrorize the victim; and
“3. This act occurred on or about the 24th day of September, 2010, in Finney County, Kansas.
“The term ‘terrorize’ means to reduce to terror by violence or threats. The word ‘terror’ means an extreme fear or fear that agitates body and mind.” (Emphasis added.)
The jury was given this aggravated intimidation of a witness instruction:
“In Count Three, the defendant is charged with the crime of aggravated intimidation of a witness. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. The defendant prevented or dissuaded, or attempted to prevent or dissuade Adriana Rivas–Ochoa, a victim, from reporting a crime to law enforcement;
“2. The act was accompanied by an expressed or implied threat of force or violence against Adriana Rivas–Ochoa;
“3. The defendant did so knowingly and maliciously; and
“4. This act occurred on or about the 24th day of September, 2010, in Finney County, Kansas.” (Emphasis added.)
During closing arguments, the State argued Martinez–Herrera was guilty of kidnapping because he pulled Rivas–Ochoa by her hair into the bedroom and back into the trailer from the neighbor's house “so she couldn't get help” and she was “terrified of him.” The State also argued he was guilty of aggravated battery because he “struck [her] with the machete handle.” Defense counsel argued, “If she is so terrorized of my client, wanting to get away, he has got a weak spot right there [cut hand]. Why would you help somebody and give them aid if you are being kidnapped?” The State restated in rebuttal that Martinez–Herrera kidnapped Rivas–Ochoa by pulling her back to the trailer so she could not get help.
The jury found Martinez–Herrera guilty of all charges. The district court sentenced him to a controlling term of 124 months' imprisonment—94 months for kidnapping, 12 months for aggravated battery, and 18 months for aggravated intimidation of a witness, to run concurrent with two 6–month terms for criminal threat. Martinez–Herrera timely appeals.
Martinez–Herrera argues that the evidence was insufficient to support his kidnapping conviction because the State failed to present evidence that he (1) took Rivas–Ochoa by threat or deception and (2) with the intent to facilitate flight or the commission of any crime.
When sufficiency of the evidence is challenged in a criminal case, the appellate court must consider all the evidence, viewed in the light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). Because it is the jury's function to weigh the evidence and determine the credibility of witnesses, this court will not reweigh the evidence. State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011). Additionally, “[t]he question of whether alternatives within a statute define alternative means or ‘an option within a means' is a question of law subject to de novo review. [Citation omitted.]” State v. Rojas–Marceleno, 295 Kan. 525, 547, 285 P.3d 361 (2012).
“Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person ... (b) to facilitate flight or the commission of any crime [or] (c) to inflict bodily injury or to terrorize the victim or another.” K.S.A. 21–3420. Martinez–Herrera contends that the phrases “by force, threat or deception” and “to facilitate flight or the commission of any crime” each create alternative means of committing kidnapping. But the Kansas Supreme Court recently rejected both of these arguments in State v. Haberlein, 296 Kan. 195, 290 P.3d 640 (2012).
The Haberlein court held that the phrase “taking or confining” creates alternative means because “each denotes a distinct actus reus,” but the phrase “force, threat or deception” does not because it “addresses secondary matters, merely describing ways in which the actus reus can be accomplished.” 296 Kan. at 205. The court also held that the different subsections of K.S.A. 21–3420 create alternative means because “the legislature [ ] signal[ed] through structure an intent to define alternative means of proving the mens rea for kidnapping,” but the phrase “to facilitate flight or the commission of any crime” does not because “the legislature grouped certain potentially distinct and potentially overlapping items, which must mean they did not want jurors to have to split hairs over whether a kidnapping ... was committed to facilitate flight or the commission of any crime.” 296 Kan. at 209. The court explained that under its analysis in State v. Brown, 295 Kan. 181, 199–200, 284 P.3d 977 (2012), “force,” “threat,” and “deception” are options within the means of “taking or confining,” and “facilitate flight” and “facilitate commission of any crime” are options within the means of subsection (b). See Haberline, 296 Kan. at 209.
Here, Martinez–Herrera's first sufficiency claim fails because he conceded that the State presented evidence that he pulled Rivas–Ochoa by her hair. Under Haberlein, the State was only required to present evidence that Martinez–Herrera took Rivas–Ochoa by force, threat, or deception.
Martinez–Herrera's second sufficiency claim is more complicated. Under Haberlein, the State was only required to present evidence that Martinez–Herrera took Rivas–Ochoa with the intent to facilitate either flight or the commission of any crime. Martinez–Herrera claims that the State presented evidence of neither option. The State counters that it presented sufficient evidence of a different means of committing kidnapping—that Martinez–Herrera took Rivas–Ochoa with the intent to inflict bodily injury and terrorize her.
Throughout the case, the State's theory was that Martinez–Herrera committed kidnapping by pulling Rivas–Ochoa from the neighbor's house by her hair. The district court, however, suggested there was evidence of two acts that could constitute kidnapping—Martinez-Herrera pulling Rivas–Ochoa by her hair (1) into the bedroom and (2) from the neighbor's house—and gave the jury a multiple acts instruction.
Neither hair pulling incident constitutes kidnapping by taking to facilitate flight. There is no evidence that Martinez–Herrera took Rivas–Ochoa into the bedroom or from the neighbor's house to flee the scene of the crime. Cf. State v. Maxwell, 234 Kan. 393, 672 P.2d 590 (1983) (defendant facilitated flight by tying robbery victims to bed while ransacking and taking items from their house); State v. Weigel, 228 Kan. 194, 612 P.2d 636 (1980) (defendant facilitated flight by forcing bank employees into vault and attempting to lock door); State v. Williams, 226 Kan. 688, 602 P .2d 1332 (1979) (defendant facilitated flight by forcing rape victim into her car and forcing her to drive him somewhere).
Nor does the first hair pulling incident constitute kidnapping by taking to facilitate the commission of a crime. In State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976), our Supreme Court crafted a test to determine whether a taking or confining was done to facilitate the commission of a crime.
“[T]o be kidnapping the resulting movement or confinement: (a) must not be slight, inconsequential, and merely incidental to the other crime; (b) must not be of a kind inherent in the nature of the other crime; and (c) must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.” State v. Burden, 275 Kan. 934, 943, 69 P.3d 1120 (2003) (reciting Buggs test).
See Buggs, 219 Kan. 203, Syl. ¶ 9, (“The word ‘facilitate’ in K.S.A. 21–3420 means something more than just to make more convenient.”).
Movement into the bedroom appears to have been merely incidental to Martinez–Herrera's crime of aggravated battery. The movement also had no significance independent of the aggravated battery: It did not make it substantially easier for Martinez–Herrera to commit the crime and it did not lessen the risk of detection at all. Martinez–Herrera probably pulled Rivas–Ochoa into the bedroom for convenience—so the children would not witness him hitting their mother with a machete.
The second hair pulling incident, on the other hand, does constitute kidnapping. It appears that Martinez–Herrera pulled Rivas–Ochoa from the neighbor's house to facilitate commission of aggravated intimidation of a witness. See State v. Coberly, 233 Kan. 100, 661 P.2d 383 (1983) (crime used to support kidnapping charge need not include element of force or bodily harm). Movement from the neighbor's house was neither inconsequential to nor inherent in the nature of the other crime. The movement made it substantially easier for Martinez–Herrera to commit the crime—it prevented Rivas–Ochoa from contacting the neighbor, who would have insisted that she call the police. The movement also substantially lessened Martinez–Herrera's risk of detection—it prevented neighbors from hearing him threaten Rivas–Ochoa's life.
It could also be argued that Martinez–Herrera pulled Rivas–Ochoa from the neighbor's house to facilitate commission of battery. Rivas–Ochoa testified that Martinez–Herrera wanted to strike her when they returned to the trailer but he did not due to his lacerated finger. See State v. Chatmon, 234 Kan. 197, 671 P.2d 531 (1983) (defendant does not always have to be convicted of the crime the defendant intends to facilitate by abduction to be convicted of kidnapping).
Therefore, there was sufficient evidence of force and intent to facilitate the commission of a crime to support Martinez–Herrera's kidnapping conviction.
Next, Martinez–Herrera argues that the jury instructions on kidnapping and aggravated intimidation of a witness were clearly erroneous because they were broader than the crimes charged. Thus, according to Martinez–Herrera, the jury was able to convict him on theories of guilt not charged in the information. Because of these errors, Martinez–Herrera believes his convictions must be reversed.
The State charged Martinez–Herrera with taking or confining Rivas–Ochoa with intent to hold her “to facilitate flight or the commission of any crime,” in violation of K.S.A. 21–3420(b). The corresponding jury instruction did not similarly limit the intent element. Instead, it followed the language of subsection (c)—he took or confined her with intent “to inflict bodily injury or to terrorize” her. The State also charged Martinez–Herrera with preventing or dissuading Rivas–Ochoa from making a report to law enforcement, in violation of K.S.A.2010 Supp. 21–3833(a), but omitted the requisite aggravation element. The corresponding instruction included the aggravated language of subsection (1)—he prevented or dissuaded her from reporting “accompanied by an expressed or implied threat of force or violence” against her. Martinez–Herrera did not object to either instruction at trial.
“K.S.A. 22–3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.” State v. Williams, 295 Kan. 605, Syl. ¶ 3, 286 P.3d 195 (2012).
To determine whether an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, “the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.” 295 Kan. 605, Syl. ¶ 4. If the reviewing court concludes the district court erred in giving a challenged instruction, the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses “whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. 605, Syl. ¶ 5 (party claiming clearly erroneous instruction has burden to establish degree of prejudice necessary for reversal); see Haberlein, 296 Kan. at 203–04, 210;State v. Trautloff, 289 Kan. 793, 802, 217 P.3d 15 (2009). Furthermore, where the jury was instructed to convict the defendant upon a theory which was not identified in the charging document, the appellate court must exercise unlimited review to determine whether the defendant's due process rights were violated. State v. Wade, 284 Kan. 527, 534, 541–42, 161 P.3d 704 (2007) (defendant's right to a fair trial is at risk).
It is a long-established rule in Kansas that jury instructions should not be broader or narrower than the information. The charging document must set out the specific offense alleged against the defendant in order to inform the defendant of the nature of the accusation against him or her and to protect him from being convicted on the basis of facts that were not contemplated in the initial charges. Trautloff, 289 Kan. at 802. “The State is bound by the wording of its complaint and limits itself to pursue only that Version of the offense' or ‘theory’ of the case at trial,” and both the prosecution and the district court must exercise caution in conforming the jury instructions to the charges. Haberlein, 296 Kan. at 210–11. A jury instruction on the elements of a crime that is broader than the complaint charging the crime is erroneous. That error is excusable only where the substantial rights of the defendant are not prejudiced. State v. Jones, 290 Kan. 373, 383–84, 228 P.3d 394 (2010). Prejudice will be found where the jury instructions surprised the defendant or misled the defendant in the preparation and presentation of his or her defense. Wade, 284 Kan. at 536–37.
We find that the kidnapping jury instruction was erroneous but did not prejudice Martinez–Herrera's substantial rights.
The State charged Martinez–Herrera with taking Rivas–Ochoa with the intent to facilitate flight or commission of any crime. The district court, however, instructed the jury that the State established guilt if it proved that Martinez–Herrera took Rivas–Ochoa with intent to inflict bodily injury or terrorize. On its face, giving this instruction was error because it presented the jury with a different theory of committing kidnapping than the theory charged in the information. See Jones, 290 Kan. at 384 (court found instructional error where defendant was unaware during trial that he was at risk of conviction based on intent to terrorize, but it did not determine whether error was reversible). The question of whether Martinez–Herrera's kidnapping conviction must be reversed rests on our determination of whether his substantial rights were prejudiced by the erroneous instruction.
At the preliminary hearing, the State informed Martinez–Herrera, as well as the district court, that it would prove that Martinez–Herrera committed kidnapping by taking Rivas–Ochoa from the neighbor's house with intent to “continue beating her.” The State tried the case on that basis. Martinez–Herrera prepared for trial and presented his defense with the understanding that he could obtain an acquittal on the kidnapping charge if he convinced the jury that he did not intend to facilitate flight or the commission of a crime when he took Rivas–Ochoa from the neighbor's house. The modified instruction given by the court relieved the State of its obligation to prove intent to facilitate flight or the commission of a crime as an element of kidnapping. Rather, the State could meet its burden by convincing the jury that Martinez–Herrera took Rivas–Ochoa from the neighbor's house with the intent to inflict bodily injury or terrorize her.
This case is analogous to State v. Turbeville, 235 Kan. 993, 686 P.2d 138 (1984). The State charged Turbeville with kidnapping—taking with the intent to facilitate the commission of a crime, to inflict bodily injury, or to terrorize the victim—and aggravated kidnapping—taking with intent to facilitate the commission of a crime or to inflict bodily injury. The district court instructed the jury that to establish kidnapping and aggravated kidnapping, the State had to prove that Turbeville took his victims with the intent to inflict bodily injury, to terrorize the victim or another, or to facilitate flight or the commission of a crime. Our Supreme Court found that while the kidnapping instructions erroneously broadened the scope of the information, Turbeville's substantial rights were not prejudiced in any way by the error.
“From the facts presented at trial, the instructions as given were entirely supported by the evidence. The defendant was fully apprised of the nature of the charges and was not misled in preparing his defense by the way the charges were described in the information. Turbeville presented an alibi defense and does not indicate how his trial strategy would have been different had the language contained in the instruction been included in the information. The language contained in the court's instruction did not charge an additional crime, but stated several methods, or in this case different types of intent under (b) or (c), by which the kidnappings could be committed. Under these circumstances any error in the instructions was harmless error.” 235 Kan. at 998.
Martinez–Herrera argues that his case is more like Trautloff. The State charged Trautloff with sexual exploitation of a child—promoting performance of sexually explicit conduct by displaying a picture. The district court instructed the jury that to establish sexual exploitation of a child, the State had to prove that Trautloff promoted performance by procuring, selling, providing, lending, mailing, delivering, transferring, transmitting, distributing, circulating, disseminating, presenting, producing, directing, manufacturing, issuing, publishing, displaying, exhibiting, or advertising a performance. “[T]he evidence of ‘procuring’ or ‘producing’ a photograph was direct and overwhelming, while the evidence that Trautloff ‘displayed’ a photograph ... was minimal and circumstantial.” 289 Kan. at 803. The Trautloff court held that the instruction was clearly erroneous because there was a possibility that the jury “found Trautloff guilty of conduct that was not charged in the information” and “would have rendered a different verdict if the district court had instructed only as to displaying.” 289 Kan. at 803.
This case is more like Turbeville than Trautloff. There was overwhelming evidence that Martinez–Herrera pulled Rivas–Ochoa from the neighbor's house to inflict bodily injury or to terrorize her. Rivas–Ochoa testified she was scared, screamed for help, and tried to call 911, and the neighbor testified Rivas–Ochoa called her crying and distraught. As discussed above, there was also evidence that Martinez–Herrera pulled Rivas–Ochoa from the neighbor's house to facilitate commission of aggravated intimidation of a witness. Because the evidence of facilitation was not minimal and circumstantial, there is no possibility the jury would have reached a different verdict had the instruction error not occurred. Furthermore, Martinez–Herrera's substantial rights were not prejudiced. Martinez–Herrera did not raise a kidnapping defense during opening arguments, but during closing arguments he defended on the theory that Rivas–Ochoa was not terrorized because she helped him bandage his cut finger and rode with him to the hospital. Because Martinez–Herrera does not indicate how his trial strategy would have been different had the language contained in the instruction been included in the information, it cannot be said that he was misled in the preparation and presentation of his defense.
We also find the aggravated intimidation of a witness jury instruction was erroneous but did not prejudice Martinez–Herrera's substantial rights.
The State charged Martinez–Herrera with preventing Rivas–Ochoa from making a report to law enforcement, a violation of the aggravated intimidation of a witness statute. But the act charged was only a violation of the intimidation of a witness statute. The district court, however, instructed the jury that the State established guilt if it proved that Martinez–Herrera prevented Rivas–Ochoa from making a report to law enforcement using an expressed threat of violence. On its face, giving this instruction was error because it presented the jury with a different crime than the crime charged in the information. The question of whether Martinez–Herrera's aggravated intimidation of a witness conviction must be reversed rests on our determination of whether his substantial rights were prejudiced by the erroneous instruction.
Again, Turbeville controls. There was overwhelming evidence that Martinez–Herrera prevented Rivas–Ochoa from making a report using an expressed threat of violence. Multiple witnesses testified that he told her he would kill her if she called the police. Because the evidence of intimidation of a witness—a lesser included crime—was not minimal and circumstantial, there is no possibility that the jury would have reached a different verdict had the instruction error not occurred. Furthermore, Martinez–Herrera's substantial rights were not prejudiced. The information put Martinez–Herrera on notice that he was being charged with aggravated intimidation of a witness, and the district court found probable cause based on evidence of his threat to kill Rivas–Ochoa. Martinez–Herrera did not raise an aggravated intimidation defense during opening arguments, but during closing arguments he suggested that the jury should convict him of the lesser included offense of intimidation of a witness. Because Martinez–Herrera does not indicate how his trial strategy would have been different had the language contained in the instruction been included in the information, it cannot be said that he was misled in the preparation and presentation of his defense.
Therefore, the district court did not commit reversible error in instructing the jury on kidnapping and aggravated intimidation of a witness.
Affirmed.