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State of Idaho

December 7, 2012

STATE OF IDAHO,
PLAINTIFF-RESPONDENT,
V.V KEVIN LOUIS ORMESHER, DEFENDANT-APPELLANT.



Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.

The opinion of the court was delivered by: Gutierrez, Judge

2012 Opinion No. 64

Stephen W. Kenyon, Clerk

Judgment of conviction for sexual abuse of a child under the age of sixteen years, affirmed.

Kevin Louis Ormesher appeals from his judgment of conviction entered upon a jury verdict finding him guilty of sexual abuse of a child under the age of sixteen years. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

After meeting fifteen-year-old A.R. at a wedding and obtaining her phone number, Ormesher texted her several days later to arrange a meeting. At about 9:30 one evening, A.R. sneaked out of her father's house and waited on a street corner until Ormesher came to pick her up. A.R. began drinking from a bottle of tequila and Ormesher drove to a trailhead and parked.

A.R. became increasingly intoxicated. According to A.R., Ormesher began kissing her, touching her breasts underneath her bra, and touching her legs.

An officer on regular patrol came upon the two and observed that A.R.'s shirt and bra were off and her bra was on the floor of the vehicle. He also observed that A.R. was extremely intoxicated and incoherent.

Ormesher was charged with sexual abuse of a child under the age of sixteen years and dispensing alcohol to a minor, the latter of which was dismissed prior to trial. Following a jury trial, Ormesher was found guilty of sexual abuse of a child under the age of sixteen years. Idaho Code § 18-1506. He now appeals.

II.

ANALYSIS

Ormesher contends there was a fatal variance between the information and the elements jury instruction as to the sexual abuse of a child charge, which allowed the jury to find Ormesher guilty based on acts not specifically included in the information. He also contends the district court erred by allowing the State to introduce evidence of Ormesher's prior convictions for ...


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