2015 Opinion No. 23
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Benjamin R. Simpson, District Judge.
Judgment of conviction for grand theft, affirmed.
Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney General, Boise, for respondent.
MELANSON, Chief Judge. Judge LANSING and Judge GUTIERREZ, CONCUR.
MELANSON, Chief Judge
John Joseph Fairchild appeals from his judgment of conviction for grand theft. Fairchild claims that the district court abused its discretion by denying his motion for a mistrial based on the amendment of the charging information in chambers and outside of his presence. For the reasons set forth below, we affirm.
FACTS AND PROCEDURE
Fairchild was charged with grand theft of an all-terrain vehicle (ATV). During jury selection, the parties agreed to exercise their peremptory challenges in chambers outside of the jury's presence. Through counsel, Fairchild waived his appearance during the exercise of the peremptory challenges. After the peremptory challenges were made, the district court discussed jury instructions with both counsel while still in chambers. This led to a discussion of the charging jury instruction, which contained language from a
proposed amended information that the state had provided to Fairchild five months prior, but had failed to file with the district court. Specifically, the original information charged that Fairchild had stolen the ATV " with the intent to appropriate to himself property of another," while the amended information charged that Fairchild had done so " with the intent to deprive another of property or to appropriate to himself certain property of another." The state moved to amend the information pursuant to Idaho Criminal Rule 7(e). Fairchild's counsel objected, arguing that the amendment charged a different offense and was, therefore, impermissible under I.C.R. 7(e). However, Fairchild's counsel conceded that he had previously been provided with the amended information and could claim no surprise. The district court allowed the amendment, ruling that it did not charge a different or additional ...