Appeal from the District Court of the Seventh Judicial District, State of Idaho, Custer County. Hon. Dane H. Watkins, Jr., District Judge.
The opinion of the court was delivered by: Lansing, Judge
Judgment of conviction and sentences for three counts of lewd conduct with a minor under the age of sixteen and one count of delivery of marijuana to a person under the age of eighteen, affirmed.
A jury found Robert Joseph Frauenberger guilty of three counts of lewd conduct with a minor under sixteen and one count of delivery of marijuana to a person under eighteen years of age. Frauenberger appeals from the judgment of conviction. He asserts a lack of district court jurisdiction, a variance between the charging information and the jury instructions, and insufficient evidence to support the verdict, all founded upon use of a pseudonym in place of the victim's real name in the charging document. He also contends that the district court erred in denying his motion for a mistrial based upon two instances of prosecutorial misconduct in the elicitation of evidence and that two additional instances of prosecutorial misconduct during closing argument warrant reversal of his convictions. Lastly, Frauenberger contends that his sentences are excessive. We affirm.
Frauenberger was charged with three counts of lewd conduct with a minor under sixteen, Idaho Code § 18-1508, and two counts of distribution of marijuana to a person under eighteen years of age, I.C. §§ 37-2732(a)(1)(B); 37-2737, based upon allegations of sexual contact with a thirteen-year-old girl and delivery of marijuana to the same victim. At trial, the district court granted a judgment of acquittal on one of the distribution of marijuana charges for lack of evidence. The jury returned guilty verdicts on the remaining four counts. The district court imposed concurrent unified ten-year sentences with two years fixed for lewd conduct and a concurrent unified four-year sentence with one year fixed for distribution of marijuana. Frauenberger appeals.
A. Issues Related to the Use of a Pseudonym in Place of the Victim's True Name in the Charging Document
The prosecutor's complaint, information, amended information, second amended information, and third amended information all allege that the victim was thirteen-year-old "Bonnie Noe." The jury instructions, however, used the victim's true name, for which we will substitute the initials, B.H. On appeal, Frauenberger asserts for the first time that his convictions must be overturned because this discrepancy caused the district court to lack jurisdiction over the charges, caused a material variance between the charging document and the jury instructions to his prejudice, and rendered the trial evidence insufficient to sustain the guilty verdicts.
All of Frauenberger's claims of error are predicated on the position that the information charged a crime against someone other than B.H. We find this position to be disingenuous, for it was clear to the defendant and to all other participants from the outset of the proceedings that the name "Bonnie Noe" was just a pseudonym for B.H., used to protect B.H.'s privacy.*fn1 B.H. testified under her true name at a preliminary hearing at which Frauenberger was personally present. At that time, neither Frauenberger nor his attorney expressed any surprise or doubt about the victim's identity, nor did they at any subsequent proceedings. During jury voir dire, the district court told the potential jurors that the alleged victim in the matter was B.H., and asked if any of them knew her. Both the prosecutor and defense counsel used the victim's real name in their opening statements. At trial, B.H. again testified under her true name. When she testified, the prosecutor made no attempt to establish for the jury that B.H. and Bonnie Noe were the same person, but on cross-examination, defense counsel asked B.H. whether she was "Bonnie Noe" and she answered, "I guess, yeah." Defense counsel impeached B.H. using her testimony from the preliminary hearing. Although use of a pseudonym in the charging document without clarification at trial could risk jury confusion in a less clear case, it did not, as Frauenberger's arguments assume, amount to charging a crime against a different victim where all parties knew full well that the name was a pseudonym for the victim and not an actual third person. With this in mind, we will address each of Frauenberger's associated claims of error.
1. Subject matter jurisdiction
Frauenberger's first argument is that the charging information did not confer on the district court subject matter jurisdiction over a prosecution for crimes victimizing B.H. Frauenberger did not challenge jurisdiction below, but Idaho Criminal Rule 12(b)(2) allows objections regarding defects in the charging document to be raised at any time through the course of proceedings, including for the first time on appeal, if the defect is jurisdictional or results in a failure to charge an offense. State v. Jones, 140 Idaho 755, 758, 101 P.3d 699, 702 (2004).
Because the charging document is the instrument that confers subject matter jurisdiction on a court, whether a court has subject matter jurisdiction depends upon whether the charging document is legally sufficient. State v. Severson, 147 Idaho 694, 708, 215 P.3d 414, 428 (2009). An indictment or an information confers jurisdiction if it alleges that the defendant committed a criminal offense within the state of Idaho. Id.; Jones, 140 Idaho at 757-58, 101 P.3d at 701-02. Whether a charging document conforms to legal requirements and whether a court has jurisdiction are questions over which we exercise free review. Id.
Frauenberger acknowledges that the charging information here was not facially defective, for it plainly alleged the commission of specified crimes within this state. Frauenberger argues, however, that "the information filed conferred jurisdiction only for the crimes charged involving Bonnie Noe," but not for any crimes involving B.H. as the victim. This argument is based entirely on the false notion that the name, "Bonnie Noe," was something other than a pseudonym for B.H.; i.e., that the information alleged a crime against some victim other than B.H. Because, as we have explained above, that assertion is entirely disproven by the record, Frauenberger's jurisdictional challenge is without merit.
We next address Frauenberger's argument that there was a variance between the charging document and the jury instructions. Because Frauenberger did not preserve his variance claim by objection below, we review for fundamental error. A defendant asserting fundamental error bears the burden to persuade the appellate court that the alleged error: (1) violated one or more of the defendant's unwaived constitutional rights; (2) is clear or obvious without the need for reference to any additional information not contained in the appellate record; and (3) affected the outcome of the proceedings. State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010); State v. Thumm, 153 Idaho 533, 542, 285 P.3d 348, 357 (Ct. App. 2012).
In State v. Brazil, 136 Idaho 327, 33 P.3d 218 (Ct. App. 2001), we described the circumstances in which a variance will require reversal of a conviction:
A determination of whether a variance is fatal depends on whether the basic functions of the pleading requirement have been met. State v. Windsor, 110 Idaho 410, 417, 716 P.2d 1182, 1189 (1985). A charging instrument meets the basic functions of the pleading requirement if it fairly informs the defendant of the charges against which he or she must defend and enables him or her to plead an acquittal or conviction in bar of future prosecutions for the same offense. United States v. Bailey, 444 U.S. 394, 395, 100 S. Ct. 624, 626-27, 62 L. Ed. 2d 575, 581-82 (1980). Therefore, a variance between a charging document and a jury instruction requires reversal only when it deprives the defendant of his or her right to fair notice or leaves him or her open to the risk of double jeopardy. Windsor, 110 Idaho at 417-18, 716 P.2d at 1189-90; [State v. Sherrod, 131 Idaho 56, 59, 951 P.2d 1283, 1286 (Ct. App. 1998)].
Brazil, 136 Idaho at 330, 33 P.3d at 221. "A review of whether the defendant was deprived of his or her right to fair notice requires the court to determine whether the record suggests the possibility that the defendant was misled or embarrassed in the preparation or presentation of his or her defense." Id.
Frauenberger disavows any claim of lack of notice or surprise caused by the alleged variance, contending instead that the variance is fatal because it leaves him open to the risk of future double jeopardy. He surmises that "although the jury found him guilty of committing crimes associated with B.H. the information charges him with crimes associated with Bonnie Noe and the State may potentially recharge him in a case listing the victim as B.H., subjecting him to punishment for crimes for which he has already been punished."
We find Frauenberger's argument groundless because the risk he posits simply does not exist under modern practices of creating and maintaining records of judicial proceedings, including verbatim records of all components of a criminal trial. This point was made by our Supreme Court in State v. Smith, 102 Idaho 108, 110, 626 P.2d 206, 208 (1981), in the context of an appellate challenge to the sufficiency of an information. The Court there addressed an assertion that because the information was nonspecific as to the facts of the alleged crime, it left the defendants at risk of being twice prosecuted for the same offenses. The Idaho Supreme Court explained the fallacy of that contention as follows: "Such double jeopardy concerns are groundless. Even if the information, taken alone, is not specific enough to itself foreclose a subsequent prosecution for the same crime, the appellants have available to them as a bar to such prosecution not only the information, but also the entire record of their trial." Id. The Court further observed that if the State were to attempt a second prosecution, "[I]t must be remembered the district court is a court of record and those records . . . amply illustrate [the facts of the alleged crime]. Such documentation on the record precludes a second prosecution for the same offense." Id. (quoting State v. Gumm, 99 Idaho 549, 554, 585 P.2d 959, 964 (1978) (Bistline, J. and McFadden, J. concurring specially)). Similarly, in State v. Windsor, 110 Idaho 410, 418 n.1, 716 P.2d 1182, 1190 n.1 (1985), the Supreme Court observed, "[c]ommentators have argued that the double jeopardy element is no longer as vital a function of the pleading document as it once was since now transcripts of the trial itself are available and more readily relied on to establish what was before the court and jury and ultimately resolved by them, as a bar to future prosecutions." See also State v. Jones, 140 Idaho 41, 47, 89 P.3d 881, 887 (Ct. App. 2003); State v. Coleman, 128 Idaho 466, 471, 915 ...