1 IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 49255
STATE OF IDAHO,

Plaintiff

- Respondent,

v.
AUDREY ROSE MONROE,

Defendant

- Appellant. ) ) ) ) ) ) ) ) ) Rexburg, June 2023 Term
Opinion filed: October 4, 2023
Melanie Gagnepain, Clerk

Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Bingham County. Darren B. Simpson, District Judge.
The judgment of the district court is affirmed

. Erik R. Lehtinen, Interim State Appell ate Public Defender, Boise, for Appellant. Sally Cooley argued.
Raúl R. Labrador, Idaho Attorney General, Boise, for Respondent. Kacey Jones argued.

_______________________________________________ MOELLER, Justice. While a passenger during an unrelated traffic stop, Audrey Monroe was recognized by a Bingham County Sheriff’s deputy as having an outstanding warrant

. Pursuant to the warrant, t he deputy attempted to take her into custody

. In the course of the arrest , Monroe refused to release her phone, which was secured on her finger by a phone ring holder . As Monroe ’s resistance escalated, she fell to the ground and began violently k icking , making contact with the officer

. Ultimately, she was secured in the police cruiser. The incident was captured on video by the arresting officer’s body cam era

. For her conduct during the arrest, Monroe was charged with felony battery on a police
officer . I.C. § 18

- 915(3). During trial, Monroe asked the district court for jury instructions regarding two misdemeanor offenses
, asserting that they were lesser include d offenses of the crime charged. T he district court declined to give either instruction. At the conclusion of the trial, the2 jury found Monroe guilty of the felony charge . On appeal, Monroe argues that the district court
committed reversible error in faili ng to give the requested lesser included jury instructions. For the reasons discussed below, we affirm Monroe’s conviction.
I. F ACTUAL AND P ROCEDURAL B ACKGROUND In March 2021, Corporal Lawrence Henrie, a Bingham County deputy sheriff, initiated a
traffic stop on a speeding vehicle. During the traffic stop, C pl . Henrie recognized Audrey Monroe
, a passenger in the car
, as a fugitive with an outstanding warrant. Monroe’s mother was the driver of the vehicle and Monroe’s young child was sitting in a car seat i n the back of the vehicle. After
C p l. Henrie confirmed the outstanding warrant with dispatch
, he asked Monroe to exit the vehicle and attempted to take Monroe into custody. While securing handcuffs on Monroe, the deputy
instructed Monroe to release her phone, which was secured on Monroe’s finger by a phone ring
holder. Monroe refused, telling the deputy he could not have her phone. C pl . Henrie repeated his instruction to Monroe for her to release the phone. Monroe continued to resist and the arrest
escal ated. Monroe turned to face the officer, lowered her head
, and attempted to back away. As she attempted to back away from the officer, Monroe fell to the ground

. While on the ground, Monroe began to forcefully kick at C pl . Henrie. B ody camera footage show s that Monroe made contact

w ith C pl . Henrie at least once.
C pl . Henrie was able to eventually regain control of Monroe and restrain her on the ground. During this time, C pl . Henrie can be heard on his radio requesting another officer to respond faster giv en the violent escalations from Monroe. C pl . Henrie instruct ed Monroe to stand up and that they were going to walk to his police car. Monroe sa id no. After a brief pause during which Cpl.
Henrie discuss e d the event with dispatch on his radio, he again instruct ed Monroe to stand up. Monroe responded with an expletive, indicating that she thought she was about to “ get murdered

. ”
T he officer immediately assure d her that she was not. After briefly standing, Monroe continue d to resist and, again, had to be restrained on the ground. Much of this resistance cannot be seen on the bodycam because Monroe was close to Cp l

. Henrie. However, Cp l . Henrie can be heard on his radio saying, “Standby. She is still kicking and fighting me.” Shortly thereafter, Cp l . Henrie repeatedly instruct ed Monroe to stop resisting. Monroe respond ed that she was not resisting, and again screamed for her phone

— this time wanting3 to answer the phone. Now restrained on the ground, Monroe told her mother to get her phone.
When Cp l . Henrie in struct ed Monroe’s mother to stay in the car , she respond ed to Monroe, “Honey, we both can’t go to jail.”
After catching his breath
, Cpl. Henrie ask ed Monroe, “Ok. I need you to just stand up and walk to my car. Are you going to do that without kicking me?” Monroe initially respond ed : “Nope.” She then continued, “I will not stand up. I will make you [expletive deleted] hog carry me and I will fight the whole way.” At this time, Monroe’s child can be heard crying in the background. Then, Cp l . Henrie again ask ed Monroe: “Are you ready to stand up and walk to my
car?” Monroe respond ed : “I am ready to stand, but I am not walking.” Cp l . Henrie clarifie d
, “wit hout kicking?” Monroe respond ed , “No, no, nope. I wanna just stand.” Cp l . Henrie inform ed
Monroe she was not going to stand, unless she was willing to walk to his police car. “Then I guess we are gonna be here. Yep.” Monroe continued to resist as another o fficer arrived on scene. When
the additional officer arrive d , Cp l . Henrie ask ed for help getting Monroe in to his police car and
inform ed the officer of her statements that she intend ed to resist. As Monroe continued to resist,
one officer had to hold Monro e on one seat as Cp l . Henrie walked to the other side to pull her fully
in the vehicle. With the additional officer’s help, Cp l . Henrie eventually secure d Monroe in the back of his police cruiser. For her conduct during the arrest, Monroe was charged with battery on a police officer or sheriff, a felony under Idaho Code section 18

- 915(3). The case proceeded to trial. After opening

statements , while the jury was excused for lunch
, the district court discussed the proposed jur y instructions with counsel. Monroe requested that the district court give jury instructions regarding two asserted lesser offenses: (1) misdemeanor battery upon a police officer by touching and (2) misdemeanor resisting or obstru cting. The requested instructions read as follows :
[ PROPOSED JURY ] INSTRUCTION NO. ___ In order for the defendant to be guilty of Misdemeanor Battery upon Certain Personnel , the state must prove each of the following:
1. On or about March 19,[ ]2021
2. in the state of Idaho
3. the defendant AUDREY ROSE MONROE committed a battery,
4. upon Lawrence Henrie4 5. By Unlawfully [sic] touching the person of Lawrence Henry [sic] against his will by kicking him in the leg and stomach, and
6. at the time of the offense, LAWRENCE HENRIE was a peace officer, and
7. the defendant knew or had reasons to know LAWRENCE HENRIE was a peace officer. If any of the above has not been proven beyond a reasonable doubt, you must find the defendant not guilty. If each of the above has been proven beyond a reasonable doubt, then you must find the defendant guilty.
[ PROPOSED JURY ] INSTRUCTION NO. ___ In order for the defendant to be guilty of Resisting or Obstructing an Officer , the state must prove each of the following:
1. On or about March 19, 2021
2. in the state of Idaho
3. the defendant AUDREY ROSE MONROE willfully
4. resisted or obstructed
5. LAWRENCE HENRIE, a peace officer,
6. in the discharge, or the attempt to discharge, any duty of LAWRENECE HENRIE’S o ffice. If any of the above has not been proven beyond a reasonable doubt, you must find the defendant not guilty. If each of the above has been proven beyond a reasonable doubt, then you must find the defendant guilty. (Emphasis in original s ). The district court rejected the proposed resisting or obstructing instruction, concluding that it was not a proper lesser included offense because it did not “entail[] the same elements as the battery that’s being alleged as the felony in this case.” As fo r the misdemeanor battery upon an
officer instruction, the court reserved ruling until the close of evidence.
After both sides had rested their cases , the district court revisited the requested jury instruction for misdemeanor battery on an officer. The d istrict court concluded that misdemeanor battery was a lesser included of the felony offense : “So the first question is: Is battery on an officer [by ] unlawful touching a lesser included offense of battery of an officer, the felony offense , [by] striking? The [district court] would have to conclude that it is. ” However, the district court noted the conjunctive nature of the statute and the additional statutory requiremen t at issue. “The question is

-- because this is not in the disjunctive. It says ‘ and there is a reasonable view of the5 evidence presented in the case that would support a finding that the defendant committed such lesser offense [. . . .]’ ” (citing I.C. § 19

- 2132(b) (emphasis added) ). Before ruling
, the court heard argument s from both the State and Monroe . After a discussion with counsel, the district court rejected the requested instruction, finding there was no reasonable view of the evidence supporting

a finding of that charge: This Court, first of all, finds that under the statutory definitions, that battery on a law enforcement officer, a striking under the current statutory authority relied upon by the State . . . [Idaho Code section] 18

- 915(3), which excludes that unlawful touching element of battery. That it is the greater offense, that battery on an officer

– unlawful touching would be a misdemeanor offense. So it is a lesser included offense. However, the statutory provision requires not only that it be a lesser included offense and that you have asked for it, but that there is a reasonable view of the evidence presented in the case that would support a finding of that charge. You’ve talked about resisting, obstructing, and I don’t think that’s . . . a lesser included offense. And I don’t think, quite frankly, and the Court will find that it’s not a reasonable interpretation that it would be

-- that the evidence presented in this case would amount to the lesser included offense. So I’m going to den y the request for the lesser included offense and will only instruct the greater offense. Following deliberations, the jury returned a verdict of guilty on the cha r ge of felony battery
on an officer . The district court later sentenced Monroe to five years in prison, with the first two years fixed and three years indeterminate, to be served consecutively with the sentence imposed
for violating probation on her 2017 b urglary conviction

. Monroe timely appealed. On appeal, Monroe argues that the district court committed reversible error in failing to give either of the lesser included jury instructions she requested

. Additionally, in her opening brief, Monroe challenges the application of the “ acquittal first rule ”
to the facts of her case. II. S TANDARD S OF R EVIEW

“ This Court exercises free review over whether a jury was given proper instructions. ” State
v. Severson , 147 Idaho 694, 710, 215 P.3d 414, 430 (2009) (citing Miller v. State, 135 Idaho 261, 265, 16 P.3d 937, 941 (Ct. App. 2000) )

. Similarly, “ [ t ]he issue of whether a particular jury
instruction is necessary and whether the jury has been properly instructed is a matter of law over
which this Court exercises free review .” State v. Stanfield , 158 Idaho 327, 331, 347 P.3d 175, 179 (2015) (alteration in original) (quoting State v. Adamcik
, 152 Idaho 445, 472, 272 P.3d 417, 4446 (2012) )

. “ ‘ The determination of whether a particular crime is an included offense of the crime charged involves a question of law over which this Court exercises free review.’ ” State v. Flegel
, 151 Idaho 525, 527, 261 P.3d 519, 521 (2011) (quoting State v. Rosencrantz , 130 Idaho 666, 668, 946 P.2d 628, 630 (1997) ).
III. A NALYSIS Monroe challenges the denial of both requested jury instructions and squarely attacks the

“ acquittal first rule. ” However, since the acquittal first rule is used in determining if an error is harmless, we must first address whether there was an error by the district court in denying the requested instructio n s

. Monroe argues that the district court erred in rejecting her two requested lesser included
offense instructions for misdemeanor battery on an officer and r esisting and obstructing an officer

. Importantly, the se offenses were denied for different reasons by the district court below. Specifically, the district court determined that the resisting or obstructing instruction was not a
lesser included offense to the charge of battery on an officer

. Regarding the misde meanor battery
on an officer instruction, the district court concluded that it was a lesser included offense ; however,
it still denied the instruction on the grounds that there was “ n ot a reasonable interpretation that it
would be

– that the evidence prese nted in this case would amount to the lesser included offense.” Thus, in evaluating these instructions, we must first determine whether the district court erred in concluding that the resisting or obstructing instruction was not a lesser included offense a nd, separately, whether the district court erred in concluding that there was no reasonable view of the
evidence that would support a verdict that the defendant committed the lesser offense of misdemeanor battery on an officer and not the greater offense o f felony battery on an officer

. A. The district court did not err in denying Monroe’s requested resisting or obstructing an officer instruction because it was not a lesser included offense under the pleading theory.
1. Th e applicability of the pleading theory was preserved for appeal. On appeal, Monroe asserts that the resisting or obstructing instruction should have been given under the pleading theory. 1 The State contends that Monroe failed to properly preserve this

1 Monroe does not challenge the district court’s decision under the statutory theory. W hile Monroe notes that the district court “did not clearly identify whether it was evaluating the offenses under the pleading theory or the statutory theory,” she only argues that resisting or obstructing was a lesser included offense under the pleading theory

.7 ar gument , maintaining that although she relied on the statutory theory at trial , she has abandoned it on appeal in favor of the pleading theory. When Monroe asked the district court for a jury instruction on misdemeanor resisting or obstructing, the State ob jected. The State addressed both
the statutory and pleading theories in its argument. When the district court denied the motion , its explanation was based, at least in part, on the pleading theory : “I don’t think [misdemeanor resisting or obstructing] entails the same elements as the battery that’s being alleged [ ] in this
case.” (Emphasis added).
In State v. DuValt
, we held that “ ordinarily issues cannot be raised for the first time on appeal. An exception to this rule, however, has been applied by t his Court when the issue was argued to or decided by the trial court. ” 131 Idaho 550, 553, 961 P.2d 641, 644 (1998) (citations omitted). See also State v. Miramontes , 170 Idaho 920, 924, 517 P.3d 849, 853 (2022) ( holding an issue “ presented to the trial co urt with argument and authority” is preserved even if there was not an adverse ruling from the court). A lthough not asserted by Monroe, the pleading theory was raised by the State, addressed by the court
, and ultimately provided a basis for the court’s adv erse ruling. Accordingly, we concl ud e that the issue was satisfactorily preser ved for appeal

. 2. The pleading theory was properly applied by the district court in denying the requested instruction

. As an initial matter, we note that “ ‘[t]here are two theories under which a particular offense may be determined to be a lesser

- included offense of a charged offense’: the statutory theory and the pleading theory.” State v. McIntosh , 160 Idaho 1, 4

– 5, 368 P.3d 621, 624

– 25 (2016) (quoting
S tate v. Sanchez

– Castro , 157 Idaho 647, 648, 339 P.3d 372, 373 (2014)). As for the former, the statutory theory looks to the statutory definitions and compares the elements of each offense. More specifically, “[t]he statutory theory provides that ‘one offen se is not considered a lesser

- included of another unless it is necessarily so under the statutory definition of the crime.’ ” Id. at 4

– 5 , 368
P.3d at 624

– 25 (quoting Sanchez

– Castro, 157 Idaho at 648, 339 P.3d at 373). “In determining
whether an offense is a lesser

- included offense this Court applies the Blockburger test, Blockburger v. United States
, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which provides that an offense may be a lesser

- included of another if all the elements of the lesser offense a re included within the elements needed to sustain a conviction of the greater offense.” McIntosh , 160
Idaho at 4

– 5, 368 P.3d at 624

– 25 (citing State v. McCormick
, 100 Idaho 111, 114, 594 P.2d 149,8 152 (1979)). Importantly, as this Court has said, “an offen se is not lesser

- included if it is possible to commit the greater offense without committing the lesser.” Id. at 5, 368 P.3d at 625. As for the second approach, “ [u] nder [the pleading] theory, an offense is included within another if the charging document alleges facts that, if proven, also necessarily prove the elements
of the lesser

- included offense.” Id

. (citing State v. Flegel
, 151 Idaho 525, 529, 261 P.3d 519, 523 (2011)). Importantly, “the pleading theory requires an examination of the charging docume nts.”
Rome v. State , 164 Idaho 407, 417, 431 P.3d 242, 252 (2018). Thus, “ [t] he pleading theory does not look at evidence adduced at trial, only the language of the charging document.” State v.
Anderson
, ___ Idaho ___, ___ , 530 P.3d 680, 689 (2023) (quoting State v. Weatherly , 160 Idaho 302, 305, 371 P.3d 815, 818 (Ct. App. 2016) ). “Under the pleading theory ‘an offense is an included offense if it is alleged in the information as a means or element of the commission of the higher offense.’ ” Rome , 164 Idaho at 417, 431 P.3d at 252 (quoting State v. Curtis , 130 Idaho 522, 524, 944 P .2d 119, 121 (1997))

. S ee also Sivak v. State , 112 Idaho 197, 211, 731 P.2d 192, 206 (1986). In support of her argument that a jury instruction on misdemeanor resisting or obstructing should have been given, Monroe points to t he criminal complaint that ch arged Monroe with one count of “Battery on a Police Officer or Sheriff

– Strike, a Felony, Idaho Code § 18

- 915(3), 18

- 903(b), (punishable from 1 to 5 years in prison and/or $50,000 fine)[.]” The specific details of the
count stated: That Audrey Rose Monro e, on or about March 19, 2021, in the County of Bingham, State of Idaho, did actually, intentionally, and unlawfully, strike the person of Corporal Lawrence [Henrie] against his/her will by kicking the law enforcement officer in the legs and stomach, where the Defendant knew or had reason to know that Corporal Lawrence [Henrie] was [a] peace officer, sheriff, or police officer and did commit said battery while [ Henrie ] was engaged in the performance of his/her duties. (Emphasis added )

. Here, as alleged by the State, “obstruction” was not a “means or element” by which Monroe completed the greater offense. In fact, t he criminal complaint does not even allege Monroe resisted
or obstructed the arresting officer “ in the discharge, or the attempt t o discharge, any duty

. ” See
ICJI 1260; I.C. § 18

- 705. Th is is a required element of a resisting or obstructing charge; however
, the State made no such allegation in its criminal complaint or information. While the facts9 developed at trial may have supporte d a separate count for resisting or obstructi ng , under the pleading theory the charging document did not support a lesser included count. As we have noted,

“ [t] he pleading theory does not look at evidence adduced at trial, only the language of the charging
document.” Anderson
, ___ Idaho at ___, 530 P.3d at 689 (quoting Weatherly , 160 Idaho at 305,
371 P.3d at 818 )

. A s we have said, “[t]he case law addressing both theories is clear that lesser

included charges must be found within the offense’s statutory definition or pleading documents.”
Id. (emphasis in original) (quoting McIntosh , 160 Idaho at 6, 368 P.3d at 626 ).
Further , when comparing the charging docume nt to the proposed jury instruction, it would
be possible to commit the greater offense without committing the lesser. Without saying as much
, t he district court offered a hypothetical supporting this conclusion : The officer’s not trying to do anything wi th me; I go up and I punch him. That’s battery on an officer, but it’s not obstructing, because I wasn’t resisting arrest. . . . Now, it still could be

-- he’d have to be doing something that I obstructed. But if he’s walking down the street and I walk up and punch him, that’s not obstructing or resisting, I wouldn’t think.
The district court’s hypothetical illustrates a key difference between the two offenses: an obstruction would have prevented the officer from completing his duty. While, admittedly, the charging document includes the performance of the duty, the charging document does not allege that the strike obstructed or otherwise impeded the performance of the officer’s duties. To expand on the hypothetical, if charged wi th both offenses, based on the charging documents, the jury could
have found Monroe guilty of battery on an officer, but not resisting or obstructing

. A s we have said, “ an offense is not lesser

- included if it is possible to commit the greater offense witho ut committing the lesser. ” McIntosh , 160 Idaho at 5, 368 P.3d at 625

. B ased on the charging documents, it cannot be said that resisting or obstructing an officer
was “ a means or element of the commission ” of felony battery on an officer as charged

. For t his

reason, we find no error in the district court’s conclusion that the resisting or obstructing charge
was not a lesser included offense under the pleading theory. Thus, it was not an error to deny the resisting or obstructing instruction.
B. The district court did not err i n denying the misdemeanor battery on an officer instruction because there was not a reasonable view of the evidence presented at trial that would have support ed a conclusion that the charged “ contact ” was no t a “ strike. ”10 Th e district court agreed with Monroe that misdemeanor battery on an officer is a lesser included offense of felony battery on an officer. Lesser included jury instructions are governed by
Idaho Code section 19

- 2132(b). The statute has two threshold requirem ents before the mandatory nature of the statute is triggered. Specifically, the statute provides: The court shall instruct the jury with respect to a lesser included offense if: (1) Either party requests such an instruction; and (2) There is a reasonable view of the evidence presented in the case that would support a finding that the defendant committed such lesser included offense but did not commit the greater offense. I.C. § 19

- 2132 (b)

. T he district court ’s determin ation that misde meanor batter y was a lesser
included offense is not challenged on appeal. Additionally, it is un disputed that Monroe requested the instruction. Thus, we must determine whether the district court erred in concluding that there

was not a reasonable view of t he evidence presented supporting a finding that Monroe committed the misdemeanor battery offense, but not the felony battery offense. Importantly, w hile “a defendant is entitled to an instruction where there is a reasonable view of the evidence presented in the case that would support the theory,” State v. Fields , 168 Idaho 57, 63, 479 P.3d 450, 456 (Ct. App. 2020) (quoting State v. Ward , 135 Idaho 400, 402, 17 P.3d 901, 903 (Ct. App. 2001)) , “ [ a ] defendant is not entitled to an instruction dealing with a defense theory that is not supported by the evidence.” State v. Hall , 161 Idaho 413, 423, 387 P.3d 81, 91 (2016) (citing State v. Johns , 112 Idaho 873, 880

– 81, 736 P.2d 1327, 1334

– 35 (1987))

. During Monroe’s opening statement, her counsel did not present a theory of the case that
the contact Monroe made with Cpl. Henrie w as merely a touch
, as opposed to a strike or kick. In fact, defense counsel highlighted the anticipated testimony of Monroe’s mother, telling the jury
that she would testify that there was no contact at all. Thus, the district court wisely waited until it
heard all the evidence before ruling on the misdemeanor battery on an o fficer instruction. During the evidentiary phase of the trial, Monroe’s mother testif ied that she did not see Monroe’ s foot make contact with Cpl. Henrie. Moreover, the only time th e “touch” theory w as even obliquely
addressed by Monroe was during the c ross

- examination of Cpl. Henrie: Q [by defense counsel] : You testified that Audrey kicked you while she was on the ground, and you mentioned you could tell you got kicked in the abdomen but you didn ’ t really

– couldn ’ t feel it very well. Can you

-- how can you

-- I guess11 you also testified that you were kicked in the upper thigh. Can you differentiate a, I guess, pain on your body from a kick from a not

- a

- kick?
A [Cpl. Henrie] : Yeah, so I felt her kick me, but the pain, it wasn ’ t like it

was

– there wasn ’ t a lot of pain. I could tell I had been kicked, but it wasn ’ t a lot of pain. So the pain itself

– I knew I got kicked. I verbally [sic] saw her kick me in the leg or the upper thigh and the stomach. It was the pain that I was referring to that

was

– I could tell I had been kicked, but it wasn ’ t like excruciat ing pain. Defense counsel continued on this path, attempting to suggest that the contact that occurred was
not a kick: Q. It was yours, okay. And so at this point, like I said, you testified that you were pressing charges for battery on an officer. Did you take any pictures of

– of where you say she kicked you? A. No, I did not. Q. No? Okay. Did you receive any medical treatment for any injuries, or did you sustain any injuries? A. Like I said, I had that charley horse and then a little bit of stomach pain and then a little bit of redness on my lower legs, but it wasn ’ t enough to receive medical treatment, anyway. Q. So you didn ’ t ask for med ical treatment. A. No, I did not. Cpl. Henrie’s responses show that

— while not exaggerating the severity of his injuries

— they were certainly more than a mere incidental touch. The quoted excerpts from Cpl. Henrie’s cross

examination constitute the only a ttempts by the defense to support the theory that a touch

— rather
than a kick or a strike

— took place. However, the officer’s references to redness and some degree of pain negated Monroe’s attempts to suggest it was merely a touch

. W e have reviewed the recor d and closely observed the same body cam footage as the
district court and the jury saw . We agree that there is no reasonable view of the body cam era footage that supports the conclusion that Monroe merely touched Cp l . Henrie with her foot but did
not strike or kick him. While much of the altercation takes place beyond the field of view, there is
at least one clear instance of a strike plainly visible in the field of view. When Monroe f e ll to the ground, her legs d id not aimlessly flail

. Rat her, from the moment she land ed on the ground, Monroe’s eyes focus ed squarely on Cp l . Henrie and her kicks at him appear deliberate

. The video12 confirms that using controlled and target ed movement s , Monroe forcefully strikes Cp l. Henrie wit h
a kick

. We agre e with the district court that t his is the only reasonable view of the evidence. Moreover, the statements heard on the video , which the parties stipulated were admissible
, support the district court’s view of the evidence . In addition to hearing Cp l

. Henrie ’s struggl e to subdu e Monroe, he can be heard on the radio stating that Monroe is “ kicking ” him. For example, Cp l . Henrie asked Monroe multiple times if she would go to the police car without kicking him. Each time, with defiant and profane language
, Monroe indicated that she was disinclined to acquiesce to the officer’s requests. For example, as previously noted, Monroe unequivocally
stated: “ I will not stand up. I will make you [expletive deleted] hog carry me and I will fight the whole way.” (Emphasis added). It is abundantly clear from viewing the video that Monroe did just
that

. Inasmuch as the evidence adduced at trial did not support a theory that the contact Monroe was charged with did not amount to a strike, and “ [ a ] defendant is not entitled to an instruction dealing with a defense theory that is not supported by the evidence
, ” Hall , 161 Idaho at 423, 387
P.3d at 91
, we conclude that Monroe was not entitled to the misdemeanor battery instruction. Accordingly, we affi rm the district court ’s refusal to give such an instruction. In light of this conclusion, we need not address Monroe’s challenge to the acquittal first rule.
IV. C ONCLUSION For the reasons discussed above, we affirm the judgment of the district court

. Chief Justice BEVAN, Justices BRODY, STEGNER and ZAHN CONCUR.