2014 Unpublished Opinion No. 370
Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. Steven C. Verby, District Judge.
Order denying motion to file second amended information and granting motion to dismiss amended information, affirmed.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for appellant. Kenneth K. Jorgensen argued.
Bryce W. Powell of Powell & Reed, P.C., Sandpoint, for respondent.
GUTIERREZ, Chief Judge.
The State appeals from the district court's order denying the State's motion to file a second amended information charging Gary Dean Blankenship with forcible rape and granting Blankenship's motion to dismiss the amended information charging him with statutory rape. For the reasons set forth below, we affirm.
I. FACTS AND PROCEDURE
In 2012, Blankenship's approximately thirty-year-old stepdaughter alleged that for a number of years, beginning when she was seven years old, Blankenship sexually abused her. The abuse culminated, she contended, with Blankenship raping her in the spring of 1997, when she was sixteen years old. In March 2012, the State filed a criminal complaint charging Blankenship with two counts of lewd conduct with a minor under sixteen years of age, Idaho Code § 18-1508, alleged to have occurred between 1988 and 1996. Realizing that prosecution under section 18-1508 was barred by the applicable statute of limitation, the State filed an amended criminal complaint in May 2012, at the time of the preliminary hearing, alleging a single count of rape in violation of Idaho Code § 18-6101. The amended complaint alleged Blankenship committed "Rape, a Felony, Idaho Code § 18-6101" as follows:
The Defendant, Gary Dean Blankenship, on or about Spring 1997, in the County of Bonner, State of Idaho, did penetrate the vaginal opening of [the victim], a female person, with his penis and where [the victim] was under the age of Eighteen (18) years, to-wit; of the age of Fifteen (15) or Sixteen (16) years old, and where Defendant at the time of the commission of the act was approximately Thirty-four (34) years of age.
Following a preliminary hearing, the magistrate found probable cause to believe Blankenship had committed the crime of statutory rape and bound him over on the charge.
The State filed an information and, subsequently, an amended information, charging Blankenship with statutory rape and using the same charging language contained in the amended complaint. The amended information merely corrected typographical errors. Blankenship filed a motion to dismiss the amended information, asserting the prosecution was barred by the applicable statute of limitation. Specifically, he pointed out that because the amended information alleged rape on the theory that the victim was under the age of eighteen, the five-year limitation period to bringing a statutory rape charge applied and barred prosecution of Blankenship for this crime. The State opposed Blankenship's motion to dismiss and filed a motion to amend the information for a second time, "to more specifically allege facts constituting the alleged crime for which the Defendant has been charged." At the hearing on Blankenship's motion to dismiss, during which the State first indicated it would file a motion to amend, the State expressed it was seeking to amend the information to allege facts constituting forcible rape, a charge the State asserted was supported by the evidence presented at the preliminary hearing and was not barred by the statute of limitation.
In a written memorandum decision and order, the district court denied the State's motion to amend the information and granted Blankenship's motion to dismiss. In regard to the motion to amend, the district court determined, among other grounds, that allowing the proposed second amendment would prejudice Blankenship's substantial rights. In granting the motion to dismiss, the district court found that because the rape was charged under the theory that the victim was "under the age of Eighteen (18) years, " the charge was barred by the five-year limitation period applicable to statutory rape. Accordingly, the court dismissed the case without prejudice and stated, "[I]f the prosecution concludes there are sufficient facts to ...