Opinion No. 117
from the District Court of the Sixth Judicial District of the
State of Idaho, Bear Lake County. Hon. Stephen S. Dunn,
district court's judgment of conviction is affirmed.
Fredericksen, Interim State Appellate Public Defender, Boise,
for appellant. Jason Pintler argued.
Lawrence G. Wasden, Attorney General, Boise, for respondent.
Russell Spencer argued.
Ostler was convicted of three counts of lewd conduct with a
minor child under sixteen ("lewd conduct"), a
violation of Idaho Code section 18-1508, and one count of
sexual abuse of a child under the age of sixteen
("sexual abuse"), a violation of Idaho Code section
18-1506. This appeal relates only to a single count of lewd
conduct. Ostler claims that the State violated his right to
due process by adding an additional lewd conduct charge
following a mistrial. The Court of Appeals vacated
Ostler's conviction for the additional felony, agreeing
that the State violated Ostler's right to due process. We
granted the State's petition for review. We affirm the
judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
molested two younger half-sisters on a number of occasions
over the course of several years. On December 17, 2013, a
jury found him guilty of two counts of lewd conduct and one
count of sexual abuse. Ostler was born in May of 1988. The
lewd conduct charges related to acts that occurred "on
or about and between 2000 and 2008." Thus, Ostler was as
young as eleven during the time frame in which the crimes
were alleged to have been committed.
sentencing Ostler, the district court sua sponte requested
that the parties submit briefs regarding the court's
subject matter jurisdiction over conduct occurring before
Ostler turned fourteen. At the time, Idaho Code section
18-216 provided that a person could not be tried or convicted
of an offense if they were less than fourteen years of age at
the time of the alleged crime. The district court set aside the
verdict, required the State to amend its information to
remove allegations of criminal conduct occurring before
Ostler turned fourteen, and ordered a new trial. During a
January 31, 2014, hearing, Ostler's attorney suggested to
the district court that the State's charges may be
"substantially different enough" to warrant a
preliminary hearing, but the district court disagreed.
the hearing, the State filed an amended information which
charged Ostler with three counts of lewd conduct and one
count of sexual abuse. The amended information excluded any
conduct that occurred prior to Ostler turning fourteen. Apart
from the earlier suggestion that a new preliminary hearing
might be warranted, Ostler did not object to the amendment
nor did he object to being retried.
second trial, the jury found Ostler guilty of all four
counts. On June 4, 2014, the district court entered judgment
and sentenced Ostler to concurrent unified sentences of ten
years, with three years fixed, and retained jurisdiction.
Ostler timely appealed.
the Court of Appeals, Ostler argued that the State violated
Ostler's right to due process when the State added the
third lewd conduct charge following the mistrial. The Court
of Appeals agreed and vacated Ostler's conviction for the
additional charge. We granted the State's petition for
II.STANDARD OF ...