Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bingham County. Hon. William H. Woodland, District Judge.
The opinion of the court was delivered by: Melanson, Judge
Judgment of conviction for lewd conduct with a minor under the age of sixteen and being a persistent violator, vacated.
Kim J. Day appeals from his judgment of conviction for lewd conduct with a minor under the age of sixteen and being a persistent violator. For the reasons set forth below, we vacate the judgment.
In 2011, Day was charged with lewd conduct with a minor under the age of sixteen, I.C. § 18-1508, and being a persistent violator, I.C. § 19-2514. At trial, the alleged victim testified that, while she was in the hot tub with Day, they played a game called "ice wars," which she described as taking ice cubes or snow into the hot tub to try to put "down each other's pants." The victim testified that, on one occasion while playing this game, Day stuck his hand down her bikini bottom and felt around her vagina. She also testified that, on that same occasion, when she tried to stick snow down Day's swimsuit, he grabbed her elbow and stuck it further down so she felt his penis. A friend of the victim testified that she saw Day put ice into the victim's bikini top and touch her breast. Day denied having ever put his hand into the victim's bikini to feel her vagina or her breast. He further testified that any touching would have been accidental and not sexual in nature. Day also testified that he would never force the victim's hand down his swimsuit to touch his penis because he had cancer in his genitals and, if someone were to touch them, it would cause immense pain.
The state's information charging Day with lewd conduct alleged that Day "had manual to genital contact with [the victim] and/or caused [the victim] to have manual to genital contact with" Day. However, the jury was instructed that, in order for Day to be guilty of lewd conduct, the state had to prove that, with intent to arouse, appeal to, or gratify the lust passions or sexual desires of Day, the victim, or some other person, Day "committed an act or acts of manual- genital contact or any other lewd or lascivious act upon or with the body of" the victim (emphasis added). The jury found Day guilty of lewd conduct with a minor under the age of sixteen and Day admitted to being a persistent violator. The district court sentenced Day to a unified term of fifteen years, with a minimum period of confinement of five years. Day appeals.
Day argues, for the first time on appeal, that he was denied his right to due process because of a fatal variance between the charging document and the jury instructions. The existence of an impermissible variance is a question of law over which we exercise free review. State v. Alvarez, 138 Idaho 747, 750, 69 P.3d 167, 170 (Ct. App. 2003); State v. Sherrod, 131 Idaho 56, 57, 951 P.2d 1283, 1284 (Ct. App. 1998). A variance may occur where there is a difference between the allegations in the charging instrument and the proof adduced at trial or where there is a disparity between the allegations in the charging instrument and the jury instructions. State v. Montoya, 140 Idaho 160, 165, 90 P.3d 910, 915 (Ct. App. 2004). If it is established that a variance exists, we must examine whether it rises to the level of prejudicial error requiring reversal of the conviction. State v. Brazil, 136 Idaho 327, 329, 33 P.3d 218, 220 (Ct. App. 2001). A variance is fatal if it amounts to a constructive amendment. State v. Jones, 140 Idaho 41, 49, 89 P.3d 881, 889 (Ct. App. 2003). A constructive amendment occurs if a variance alters the charging document to the extent the defendant is tried for a crime of a greater degree or a different nature. Id.; State v. Colwell, 124 Idaho 560, 566, 861 P.2d 1225, 1231 (Ct. App. 1993). In other words, a variance between a charging document and a jury instruction requires reversal only when it deprives the defendant of fair notice of the charge against which he or she must defend or leaves him or her open to the risk of double jeopardy. State v. Wolfrum, 145 Idaho 44, 47, 175 P.3d 206, 209 (Ct. App. 2007). In State v. Folk, 151 Idaho 327, 342, 256 P.3d 735, 750 (2011), the Idaho Supreme Court stated that the instructions to the jury must match the allegation in the charging document as to the means by which a defendant is alleged to have committed the crime charged. Otherwise, the Court explained, there can be a fatal variance between the jury instructions and the charging document. Id. In addition, where, as here, the defendant did not object to the alleged error below, to obtain relief on appeal for fundamental error the following three prongs must be met: (1) the defendant must demonstrate one or more of the defendant's unwaived constitutional rights were violated; (2) the error must be clear or obvious, without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision; and (3) the defendant must demonstrate there is a reasonable possibility that the error affected the outcome of the trial. State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010).
Day argues that the jury instruction allowed Day to be found guilty of lewd conduct for contact other than manual-genital contact, which was the only type of contact for which Day was charged in the information. Specifically, Day asserts that touching of the victim's breast area, which was the only type of contact about which the jury heard testimony in addition to the manual-genital contact, is a different type of contact from that originally charged and, further, is not contact for which Day could be found guilty of lewd conduct. Thus, Day concludes that the variance between the charging document and the jury instructions violated his right to due process and thereby amounted to constitutional error.
In Folk, 151 Idaho at 339, 256 P.3d at 747, the state charged Folk with lewd conduct by committing oral-genital contact. The jury was instructed as follows:
In order for the defendant to be guilty of Lewd and Lascivious Conduct, the state must ...