State v. Kemper

OPINION

DOWNIE, Judge.

¶ 1 Nephi Joseph Kemper appeals his conviction for sexual assault, a class 2 felony in violation of Arizona Revised Statutes (“A.R.S.”) section 13-1406. We conclude the jury was improperly instructed about an element of the offense, even though the jury instruction tracked the Recommended Arizona Juiy Instruction (“RAJI”) regarding sexual assault. The erroneous instruction, coupled with the prejudice we discuss in a memorandum decision filed July 12, 2011, requires that we vacate Kemper’s conviction and remand for a new trial.1

DISCUSSION

¶ 2 A jury found Kemper guilty of…