               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 42472

STATE OF IDAHO,                                 )    2016 Unpublished Opinion No. 494
                                                )
       Plaintiff-Respondent,                    )    Filed: April 19, 2016
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
DANIEL GEORGE JOHNSTON,                         )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Defendant-Appellant.                     )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bonneville County. Hon. Dane H. Watkins, Jr., District Judge.

       Order denying motion to dismiss, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Daniel George Johnston appeals from the district court’s order denying his motion to
dismiss. We affirm.
                                                I.
                      FACTUAL AND PROCEDURAL BACKGROUND
       Johnston was convicted in Michigan of criminal sexual conduct in the first degree (the
Michigan crime), Michigan Compiled Laws § 750.520b(1)(a). Johnston subsequently moved to
Idaho. The State filed a complaint against Johnston for failing to register his change of address,
Idaho Code § 18-8309, after discovering he resided in Idaho and had not registered as a sex
offender in Idaho. Johnston admitted to officers he had registered as a sex offender in Michigan.
At the preliminary hearing, the officer assigned to Johnston’s case testified that he verified




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Johnston’s duty to register through the Michigan state sex offender registry. The magistrate
bound the failure to register change of address charge over to the district court.
       The State subsequently filed an information charging Johnston for failing to register his
change of address. Several months later, the State filed a motion in limine asking the district
court to take judicial notice of M.C.L. § 750.520b(1)(a) and find the Michigan crime was
substantially equivalent to the Idaho crime of lewd conduct with a minor child under sixteen,
I.C. § 18-1508. The State also amended its information to charge Johnston for failing to register
as a sex offender, I.C. § 18-8307, because that charge better reflected the evidence of the crime.
       Johnston filed a motion to dismiss, Idaho Criminal Rule 48(a)(2), arguing the Michigan
crime was not substantially equivalent to any Idaho crimes and he was not required to register in
Michigan because he was homeless when he left Michigan and there was ambiguity in Michigan
law at that time about whether a homeless person had to register.
       The district court held a hearing where it addressed both the State’s motion in limine and
Johnston’s motion to dismiss.       The State did not have a copy of Johnston’s judgment of
conviction at the hearing. The court held the Michigan crime was substantially equivalent to
Idaho crimes in I.C. § 18-8304(1)(a), denied Johnston’s motion to dismiss, and stated its intent to
grant the State’s motion in limine. Before his trial date Johnston entered a conditional guilty
plea to the failure to register charge, preserving the right to appeal the denial of his motion to
dismiss. Johnston timely appeals.
                                                   II.
                                            ANALYSIS
       Johnston argues the district court lacked jurisdiction to accept his guilty plea and abused
its discretion by denying his motion to dismiss.
A.     Jurisdiction
       Johnston argues the district court lacked jurisdiction to accept his guilty plea. Whether a
court lacks jurisdiction is a question of law over which this Court exercises free review. State v.
Jones, 140 Idaho 755, 757, 101 P.3d 699, 701 (2004). Because the indictment or information
provides subject matter jurisdiction to the court, the court’s jurisdictional power depends on the
legal sufficiency of the charging document. Id. at 758, 101 P.3d at 702. “To be legally
sufficient, a charging document must meet two requirements: it must impart jurisdiction and
satisfy due process.” State v. Severson, 147 Idaho 694, 708, 215 P.3d 414, 428 (2009).

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       Article I, section 8 of the Idaho Constitution states, “No person shall be held to answer
for any felony or criminal offense of any grade, unless on presentment or indictment of a grand
jury or on information of the public prosecutor, after a commitment by a magistrate.” Further,
I.C. § 19-1308 provides, “No information shall be filed against any person for any offense until
such person shall have had a preliminary examination . . . unless such person shall waive his
right to such examination.” Moreover, an amended information may not “charge an offense
other than that for which the defendant has been held to answer” at a preliminary hearing.
I.C. § 19-1420; see I.C.R. 7(e) (The State can amend an information only “if no additional or
different offense is charged and if substantial rights of the defendant are not prejudiced.”). Thus,
an amended information may not charge a defendant with a new felony unless the new charge is
a lesser included offense of a previously bound-over charge, a magistrate binds over the new
charge in a preliminary hearing, or the defendant waives his right to a preliminary hearing on the
new charge. See I.C. §§ 19-1308, 19-1420; State v. Flegel, 151 Idaho 525, 527, 261 P.3d 519,
521 (2011).
       Johnston asserts the district court lacked jurisdiction to accept his guilty plea to the
failure to register charge. According to Johnston, the amended information did not impart
jurisdiction over the failure to register charge because that charge was not a lesser included
offense of the previously bound-over charge, a magistrate did not bind over the failure to register
charge in a preliminary hearing, and he did not waive his right to a preliminary hearing on the
failure to register charge. Johnston claims his guilty plea did not waive his right to a preliminary
hearing.
       Our Supreme Court recently addressed this issue in State v. Schmierer, ___ Idaho ___,
367 P.3d 163 (2016). In Schmierer, the Supreme Court held that “a defendant waives his right to
a preliminary examination by pleading guilty without objection.” Id. at ___, 367 P.3d at ___; see
Brown v. State, 159 Idaho 496, 497 n.2, 363 P.3d 337, 338 n.2 (2015) (“By pleading guilty
without making an objection to the lack of a commitment by a magistrate regarding the offense
alleged in the information, Mr. Brown would have waived his right to a preliminary
examination.”). Here, Johnston pled guilty to the failure to register charge without objection to
the lack of a preliminary hearing regarding the failure to register charge. Thus, Johnston waived
his right to a preliminary hearing on the failure to register charge. Because Johnston waived his



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right to a preliminary hearing on the failure to register charge, the district court had jurisdiction
to accept his guilty plea to that charge.
B.     Motion to Dismiss
       Johnston argues the district court abused its discretion by denying his motion to dismiss
because the State failed to establish he was required to register in Michigan and that the
Michigan crime was substantially equivalent to an Idaho crime. “This Court reviews a district
court’s decision on a motion to dismiss a criminal action for an abuse of discretion.” State v.
Martinez-Gonzalez, 152 Idaho 775, 778, 275 P.3d 1, 4 (Ct. App. 2012); see I.C.R. 48(a); State v.
Dixon, 140 Idaho 301, 304, 92 P.3d 551, 554 (Ct. App. 2004). When a trial court’s discretionary
decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine
whether the lower court correctly perceived the issue as one of discretion, acted within the
boundaries of such discretion and consistently with any legal standards applicable to the specific
choices before it, and reached its decision by an exercise of reason. State v. Hedger, 115 Idaho
598, 600, 768 P.2d 1331, 1333 (1989).
       This Court exercises free review over questions of law and the application and
construction of statutes. State v. O’Neill, 118 Idaho 244, 245, 796 P.2d 121, 122 (1990); State v.
Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Idaho Code § 18-8304(1)(c)
requires sex offender registration in Idaho for any person who
              [h]as been convicted of any crime . . . in another jurisdiction . . . that is
       substantially equivalent to the offenses listed in subsection (1)(a) of this section
       and was required to register as a sex offender in any other state or jurisdiction
       when he established residency in Idaho.
       Johnston first argues that the State failed to establish he was required to register in
Michigan. According to Johnston, the State did not introduce any evidence showing he was
required to register in Michigan and the district court did not analyze the elements under the
Michigan Compiled Laws to find the Michigan crime required him to register in Michigan.
Thus, Johnston argues the court abused its discretion by denying his motion to dismiss.
       We disagree. The State did not have a duty to establish Johnston was required to register
in Michigan. In an I.C.R. 48 motion to dismiss, the moving party has the burden to persuade the
court that dismissal will “serve the ends of justice and the effective administration of the court’s
business.” I.C.R. 48(a)(2); see State v. Dieter, 153 Idaho 730, 735, 291 P.3d 413, 418 (2012).
Here, Johnston moved to dismiss the action. Thus, he had the burden to persuade the court that


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dismissal was warranted. He could have done this by establishing he was not required to register
in Michigan. Johnston failed to meet his burden, and the district court denied his motion to
dismiss. Johnston cannot assert the court erred in denying his motion to dismiss when he failed
to meet his burden.
       Further, whether the Michigan Compiled Laws required Johnston to register for the
Michigan crime was not an issue before the district court at the hearing on the motion to dismiss.
Johnston admitted to officers he had registered as a sex offender in Michigan. Moreover, the
officer assigned to Johnston’s case testified that he verified Johnston’s duty to register through
the Michigan state sex offender registry at the preliminary hearing. Finally, Johnston did not ask
the court to determine whether the Michigan Compiled Laws required him to register for the
Michigan crime in his motion to dismiss. In that motion, Johnston argued he was not required to
register in Michigan because he was homeless when he left Michigan. At the hearing on the
motion to dismiss, the court noted Johnston’s citation of a 2010 Michigan Court of Appeals’
case, which held homeless people did not have to register. The court then referenced a 2011
Michigan Supreme Court case which held homeless people had to register and stated, “[E]ven if
the defendant had his own personal confusion, the law is imputed on him. The law in Michigan
is that a homeless individual must register.” Thus, the court correctly addressed the issue
Johnston raised in his motion to dismiss regarding his duty to register in Michigan, and nothing
required the court to analyze the Michigan Compiled Laws to find the Michigan crime required
him to register in Michigan.
       Because Johnston had the burden to persuade the court to dismiss his charge and the
court addressed the issues raised in Johnston’s motion to dismiss, we hold the district court did
not abuse its discretion in denying Johnston’s motion to dismiss.
       Johnston next argues the State failed to establish the Michigan crime was substantially
equivalent to an Idaho crime in I.C. § 18-8304(1)(a). At the hearing on the motion to dismiss,
Johnston admitted to violating M.C.L. § 750.520b, but did not specify what subsection he
violated. Moreover, the State did not specify what subsection he violated or provide a copy of
his judgment of conviction.     Thus, Johnston asserts the district court did not know what
subsection he violated or the elements of the Michigan crime. According to Johnston, the district
court could not find the Michigan crime was substantially equivalent to an Idaho crime in
I.C. § 18-8304(1)(a) without knowing the elements of the Michigan crime. Thus, Johnston

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asserts the district court abused its discretion by holding the Michigan crime was substantially
equivalent to Idaho crimes in I.C. § 18-8304(1)(a) without knowing the elements of the Michigan
crime.
         Again, the burden was on Johnston to persuade the court that dismissal was warranted.
He could have done this by establishing the Michigan crime was not substantially equivalent to
an Idaho crime in I.C. § 18-8304(1)(a). Johnston did not meet his burden. He cannot assert the
court erred in denying his motion to dismiss when he failed to meet his burden.
         Moreover, the district court knew what subsection of M.C.L. § 750.520b Johnston
violated and the elements of the Michigan crime. Before the hearing on the motion to dismiss,
the State filed a motion in limine asking the court to take judicial notice of M.C.L.
§ 750.520b(1)(a) and find the Michigan crime was substantially equivalent to the Idaho crime of
lewd conduct with a minor child under sixteen. At the motion to dismiss hearing, the court relied
on M.C.L. § 750.520b(1)(a) in finding the Michigan crime was substantially equivalent to Idaho
crimes in I.C. § 18-8304(1)(a). Moreover, the court referred to and stated its intent to grant the
State’s motion in limine. Thus, the State’s motion in limine informed the court of the subsection
Johnston violated, and the court compared the elements in that subsection to the elements of
Idaho crimes in I.C. § 18-8304(1)(a) to find the crimes were substantially equivalent.
         Because Johnston had the burden to persuade the court to dismiss his charge and the
court knew what subsection of M.C.L. § 750.520b he violated and the elements of the Michigan
crime, we hold the court did not abuse its discretion in denying Johnston’s motion to dismiss.
         To the extent Johnston argues the Michigan crime was not substantially equivalent to
Idaho crimes in I.C. § 18-8304(1)(a), we exercise free review and hold that it was. Whether a
foreign crime is substantially equivalent to an Idaho crime requiring sex offender registration is a
question of law this Court freely reviews. Doe v. State, 158 Idaho 778, 782, 352 P.3d 500, 504
(2015). The Idaho State Police Rules Governing the Sex Offender Registry define substantially
equivalent as follows: “‘Substantially Equivalent or Similar’ means any sex offense related
crime, regardless of whether a felony or misdemeanor, that consists of similar elements defined
in Title 18 of the Idaho Criminal Code. It does not mean exactly the same, nor exactly identical
to.” Idaho Administrative Procedure Act 11.10.03.010.05. Thus, substantial equivalency does
not require exact correspondence between the foreign statute and the Idaho statute. Cf. State v.
Moore, 148 Idaho 887, 897, 231 P.3d 532, 542 (Ct. App. 2010) (interpreting the “substantial

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conformity” requirement under Idaho’s DUI laws). In determining substantial equivalency,
courts focus on the elements of each offense, not the specific conduct giving rise to the prior
violation. See Doe, 158 Idaho at 783, 352 P.3d at 505; cf. Moore, 148 Idaho at 898, 231 P.3d at
543. Moreover, courts need not imagine all conceivable conduct that may be committed by a
hypothetical defendant to compare what conduct may or may not be criminalized under each
statute. Cf. Moore, 148 Idaho at 898, 231 P.3d at 543. Thus, the foreign state’s statute may
encompass conduct that would not be illegal in Idaho, i.e., the foreign statute may be broader
than Idaho’s statute. Cf. id. The primary inquiry is whether the statutes prohibit the same
essential conduct such that a crime from another jurisdiction would constitute a crime in Idaho.
See Doe, 158 Idaho at 783, 352 P.3d at 505; cf. Moore, 148 Idaho at 898, 231 P.3d at 543.
        In deciding the Michigan crime was substantially equivalent to Idaho crimes in I.C. § 18-
8304(1)(a), the district court stated,
        I’m reading from the [Michigan] statute. “[(1)] A person is guilty of criminal
        sexual conduct in the first degree if he or she engages in sexual penetration with
        another person and if any of the following circumstances exist:
               (a) That other person is under 13 years of age.”
               The Court is comparing that which the defendant was convicted of in
        Michigan and any offense as listed in the Idaho statute [I.C. § 18-]8304, and the
        Court finds that there were two statutes--the lewd and lascivious conduct, which
        prohibits genital-to-genital contact with a minor under 16, and [I.C. §] 18-6101,
        rape, which prohibits penetration under 16.
               Each of those offenses in the Court’s mind is substantially equivalent or
        substantially similar to the Michigan statute which prohibits sexual penetration
        with a person under 13, and the Court finds that each statute prohibits that same
        conduct.
               The defendant’s conduct in Michigan would likewise be prohibited in
        Idaho.
        We agree. Although the elements of the Michigan statute may be broader in certain
respects than the Idaho statutes comprising rape and lewd conduct with a minor child under
sixteen, each statute prohibits the same essential conduct: sexual penetration of a victim less
than thirteen years of age. Thus, the Michigan crime would constitute a registerable crime in
Idaho. Accordingly, we hold the Michigan crime was substantially equivalent to the Idaho
crimes of rape and lewd conduct with a minor child under sixteen.




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                                              III.
                                       CONCLUSION
       The district court had jurisdiction to accept Johnston’s guilty plea and did not abuse its
discretion in denying his motion to dismiss. The district court’s order denying Johnston’s
motion to dismiss is affirmed.
       Chief Judge MELANSON and Judge HUSKEY CONCUR.




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