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STATE v. KEMPER

No. 1 CA-CR 09-0893.

271 P.3d 484 (2011)

STATE of Arizona, Appellee, v. Nephi Joseph KEMPER, Appellant.

Court of Appeals of Arizona, Division 1, Department C.

November 1, 2011.

Attorney(s) appearing for the Case

Thomas C. Home, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section, Robert A. Walsh, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender, By Louise Stark, Deputy Public Defender, Phoenix, Attorney for Appellant.

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 Jury Instruction ("RAJI") regarding sexual assault. The erroneous instruction, coupled with the prejudice we discuss in a memorandum...

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