A jury convicted Benjamin Huber of driving under the influence of alcohol (DUI), a class B misdemeanor. On appeal, Huber claims the district court erred in allowing the State to amend the jury instructions to include “actual physical control” (APC). We reverse and remand for a new trial because the instructions permitted the jury to convict of DUI even if it found the defendant had only committed the lesser included offense of APC.
*793 I
On the evening of August 4, 1995, a Mercer County Deputy Sheriff responded to a dispatcher call reporting a “suspicious” vehicle on County Road 21. Upon arriving at the location, the officer observed a black pickup off to the side of the road. He saw the vehicle move forward but could not positively identify the driver at that time. Two other persons were present at the scene — one standing outside the vehicle and the other seated in the passenger’s seat. The person behind the wheel and the person outside the vehicle were arguing.
As the officer approached the vehicle, he identified thе person behind the wheel as Huber. Huber was sitting in the driver’s seat with the vehicle running. The other two people said one of them had been driving and Huber had slid behind the wheel when the driver stepped out of the vehicle. The officer conducted a number of field sobriety tests and placed Huber under arrest for driving under the influence of alcohol.
On the morning of trial, prior to jury selection, the State requested the jury instruction on “essential elements of the offense” be amended to include the phrase “or was in actual physical control of’ a motor vehicle. The court’s proposed instruction included only the term “operate” a motor vehicle. Over Huber’s objection, the distriсt court amended the instruction. The jury was instructed that “[t]he prosecution satisfies its burden of proof only if the evidence shows beyond a reasonable doubt ... Hubert ] did operate or was in actual physical control of a motor vehicle.... ” The State did not amend the complaint, nor did the court amend the verdict forms to include a possible verdict of guilty of APC.
The district court had jurisdiction under N.D. Const. Art. VI, § 8, and N.D.C.C. § 27-05-06(1). The appeal from the district court was filed in a timely manner under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. Art. VI, § 6, N.D.C.C. § 29-01-12, and N.D.C.C. § 29-28-06.
II
Huber claims the jury instruction was reversible error because DUI and APC are different offenses, and it is possible to commit APC without committing DUI. Because the additional instruction added a different offеnse, Huber argues the late amendment of the instruction prejudiced his substantial rights. We evaluate this case by first determining whether the district court erred in amending the instruction and, if so, whether the error was harmless.
State v. Marshall,
A
“ ‘The purpose of jury instructions is to apprise the jury of the state of the law.’ ”
State v. Murphy,
*794 B
The State contends Huber acquiesced in the instruction on APC by submitting a proposed instruction on APC, and he cannot object to the instruction on appeal. In this case, however, Huber objected prior to jury selection to the inclusion of APC in the jury instructions. The district court granted the State’s request to include APC. Only after the court’s ruling on the State’s request did Huber agree to submit a proposed instruction on APC. We conclude Huber adequately objected to the instruction on APC.
C
The State contends there was no еrror because APC is, in fact, DUI under North Dakota law.
Under N.D.C.C. § 39-08-01(1):
“[a] person may not drive or be in actual physical control of any vehicle upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if any of the following apply:
a. That person has an alcohol concentration of at least ten one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving or being in actual physical control of a vehicle.
b. That person is under the influence of intoxicating liquor.”
The State argues the amended instruction did not add a new or different offense because both APC and DUI appear in the same statute. A statute may contain more than one separate offense.
See, e.g., State v. Vance,
“Driving” is an element of DUI. N.D.C.C. § 39-08-01. N.D.C.C. Ch. 39-08 dоes not define “drive.” The State argues the definition of “drive” under N.D.C.C. § 39-06.2-02(10) should apply. Generally, “[wjhenever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same word or phrase wherever it occurs in the same or subsequent statutes, except when a contrary intention plainly appears.” N.D.C.C. § 1-01-09;
Northern X-Ray Co., Inc. v. State,
Under N.D.C.C. § 39-06.2-02(10), “drive” is defined as “drive, operate, or be in physical control of a motor vehicle.” Under this definition, being in “physical control” constitutes “driving” and APC would be the same offense as DUI. But the definition of “drive” relied on by the State is in N.D.C.C. Ch. 39-06.2, the chapter on commercial drivers’ licenses, and is limited to “[a]s used in this chapter, unless the context or subject matter оtherwise requires.” N.D.C.C. § 39-06.2-02. DUI and APC appear in N.D.C.C. Ch. 39-08. As we have held, “driving is an element required in DUI, but not APC.”
City of Fargo v. Schwagel,
Under the rules of statutory construction, statutes are construed “to avoid absurd and ludicrous results.”
State v. Erickson,
, Because APC and DUI are different offenses, “drive” cannot mean “physical control.” We reject application of the definition of “drive” under N.D.C.C. § 39-06.2-02(10) to DUI. DUI and APC are different offenses.
*795 D
Alternatively, the State argues APC is a lesser included offense of DUI.
Under N.D.C.C. § 12.1-01-04(15), an “included offense” means an offense:
“a. Which is established by proof of the same or less than all the facts required to establish commission of the offense charged;
b. Which consists of criminal facilitation of or an attempt or solicitation to commit the offense charged; or
c. Which differed from the offense charged only in that it constitutes a less serious harm or risk of harm to the same person, property, or public interest, or because a lesser degree of culpability suffices to estаblish its commission.”
“ ‘An offense is a lesser included one of another only if, in order to commit the greater offense, it is necessary to commit thé lesser.’” Jacobson at 650 (quoting 21 Am. Jur.2d, Criminal Law, § 269 (1981)). The difference between DUI and APC is DUI contains the element of “driving” and APC contains the element of “actual physical control.” N.D.C.C. § 39-08-01. While it is possible to be in actual physical control without driving, it is not possible to drive without being in actual physical control.
1
In defining statutory terms, “words must be given their plain, ordinary and commonly understood meaning, and consideration should be given to the ordinary sense of statutory words, the context in which they are used, and the purpose which prompted their enactment.”
City of West Fargo v. Maring,
“The term ‘physical control’ is more comprehensive than either ‘drive’ or ‘operate.’”
State v. Starfield,
2
APC differs from DUI in that “it constitutes a less serious harm or risk of harm to the same person, property, or public interest.” N.D.C.C. § 12.1-01-04(15). “[T]he real purpose of the [APC] statute is to deter individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.”
State v. Ghylin,
The APC statute is a “preventive measure intended to deter the drunken driver.” Ghy-lin. “One who has been drinking intoxicating liquor should not be encouraged to test his driving ability on the highway, even for a short distance, where his life and the lives of others hang in the balance.” Ghylin. If the intoxicated person is intent on driving and has the keys to the vehicle, the person becomes “a source of danger to [himself], to others, or to property.” Starfield at 837. APC statutes allow the arrest оf such persons before the danger arises.
3
The term lesser included offense has been used both in the sense of lesser penalties and in the sense of fewer elements.
See, e.g., Jacobson
at 650 (under previous law: “the Legislature has provided the same criminal penalty for either offense, and on that basis” APC is not a lesser included offense of DUI); and
State v. Clinkscales,
In
Jacobson,
we said “APC does not qualify as a lesser offense” of DUI because the statute provided the “same criminal penalty for either offense.”
Jacobson
at 650. At the time of Jacobson’s offense, the penalties for DUI and APC were the same.
See
N.D.C.C. § 39-08-01 (prior to 1983 amendment);
State v. Goodbird,
APC is a lesser included offense of DUI.
See City of Montesano v. Wells,
4
“Generally, courts should give an instruction on a lеsser included offense if ‘the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit him of the greater.’ ”
State v. McDonell,
5
Because APC is a lesser included offense of DUI, Huber was on notice of a possible APC instruction and the State was not required to amend the complaint.
Under the Sixth Amendment, a defendant has the right “ ‘to be informed of the nature and cause of the accusation.’ ”
Schwagel
at 874 (citing
Faretta v. California,
“Quite simply, an offense charged in an Information inherently notifies the defendant that he or she may have to defend against lesser included offenses; no additional or specific language as to the lesser included offense is necessary to put the defendant on *797 notice.” Vance at 648. Under N.D.R.Crim.P. 31(e), “[t]he defendаnt may be found guilty of an offense necessarily included in the offense charge or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.”
The complaint notified Huber of the DUI charge and all lesser included offenses. See Stoppleworth. Even if the jury found all the elements of APC were proven, conviction of APC without amending the complaint would not be a denial of due process.
E
The jury instructions were amended to include APC as an alternative to “operate” a motor vehicle. The district court instructed the jury “that to drive as defined in North Dakota means to drive, operate or be in physical control of a motor vehicle.” The jury was instructed to return a guilty verdict if it found Huber had either “operated” the vehicle or had been in “actual physical control” of the vehicle. The verdict forms allowed the jury to find Huber guilty of DUI or not guilty of DUI. The forms were not amended to allow conviction of APC.
Under such an instruction, the jury could have found all the elements оf APC and convicted Huber of DUI even if the jury would not have found the defendant guilty of DUI under a correct instruction. It is not possible to determine whether the jury convicted Huber of APC or DUI. Under the Fourteenth Amendment, the State must prove every element of the offense beyond a reasonable doubt.
State v. Sheldon,
Although instructing the jury on a lesser included offense would not have been error, the district court should have made clear to the jury the distinction between APC and DUI and given the jury correct verdict forms and correct instructions on deliberating
2
when a lesser included offense is a possibility.
See State v. Steinmetz,
III
Having concluded the district court erred in its instructions, including its verdict forms, we further conclude instructions which permit a defendant who only committed a lesser offense to be convicted of a greater offense and receive the consеquences of the greater offense are not harmless error.
State v. Trotter,
Because the instruction could have had a significant impact on the jury’s verdict, the instruction affected the substantial rights of Huber and therefore was not harmless error.
IV
Failure of the district court to properly distinguish between APC and DUI in its *798 instruction and failure to amend the jury verdict forms violated Huber’s right to due process of law. The judgment оf conviction is reversed and remanded for a new trial.
Notes
. Schwagel involved a violation of Fargo Municipal Code Section 8-0310 and not N.D.C.C. § 39-08-01. ' However, the language of the ordinance closely parallels the DUI statute.
. We have adopted the "acquittal first” instruction "to guide a jury in its transition from considering the charged offense to сonsidering lesser included offenses.”
State v. Daulton,