               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38267

STATE OF IDAHO,                                   )     2012 Unpublished Opinion No. 549
                                                  )
       Plaintiff-Respondent,                      )     Filed: July 5, 2012
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
DUPREE L. MEADOWS,                                )     THIS IS AN UNPUBLISHED
                                                  )     OPINION AND SHALL NOT
       Defendant-Appellant.                       )     BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Fred M. Gibler, District Judge.

       Judgment of conviction for burglary; felony destruction, alteration, or
       concealment of evidence; and being a persistent violator, affirmed; judgment of
       conviction for resisting or obstructing officers, vacated.

       Greg S. Silvey, Star, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Judge
       Dupree L. Meadows appeals from his judgments of conviction entered upon a jury
verdict finding him guilty of burglary; felony destruction, alteration, or concealment of evidence;
and resisting or obstructing officers, and the district court’s finding that he was a persistent
violator. For the reasons set forth below, we affirm in part and vacate in part.
                                                 I.
                                  FACTS AND PROCEDURE
       Several people attending a house party were standing outside when they saw Meadows,
who had left the party fifteen to twenty minutes earlier, standing near the host’s truck and
interpreted his actions as suspicious. Later, the truck’s owner noticed several items were missing
from the truck and went to Meadows’ apartment complex where he saw several of his items in
Meadows’ parked vehicle. The truck’s owner called the police, who arrived on the scene and
knocked on Meadows’ apartment door. Meadows consented to their entry into the apartment as

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far as the entryway.     The officers questioned Meadows as to the burglary, but he denied
involvement and became agitated. Eventually, the officers advised Meadows he was under
arrest, but Meadows refused to immediately comply with the officers’ orders to turn around and
place his hands behind his back, instead sitting down on the sofa. The officers eventually
succeeded in arresting him.
       Following the arrest, the victim and the officers found items belonging to the victim in a
community dumpster at Meadows’ apartment complex.               After obtaining a search warrant,
officers found additional items from the victim’s truck in Meadows’ vehicle. Other items were
found on the patio of Meadows’ apartment.
       Meadows was charged with burglary, Idaho Code § 18-1401; felony concealment of
evidence, Idaho Code § 18-2603; obstructing officers, Idaho Code § 18-705; and being a
persistent violator, Idaho Code § 19-2514. Meadows filed a motion to suppress all evidence
“obtained as a result of the detention, arrest, search, seizure, and subsequent questioning of the
Defendant,” alleging the officers lacked probable cause to arrest him and did not comply with the
revocation of his consent to their presence in the apartment. Following a hearing, the district
court denied the motion. Except for the persistent violator enhancement, which was determined
by the district court, a jury found Meadows guilty of all charges. Meadows now appeals.
                                                 II.
                                            ANALYSIS
       Meadows contends the district court erred in denying his motion to suppress. He also
argues there was insufficient evidence to support a finding that he had the requisite intent to be
convicted of felony concealment of evidence, or, in the alternative, the requisite facts comprising
a felony concealment of evidence charge were not charged and were not found by the jury.
Finally, he contends there existed a fatal variance in that the charging document varied from the
jury instructions and evidence presented at trial in regard to the obstructing officers charge.
A.     Motion to Suppress
       Meadows contends the district court erred in denying his motion to suppress because the
officers exceeded the scope of his consent when they entered further into the apartment, beyond
the entrance area, to arrest Meadows and/or because his consent to the officers’ entry had been
revoked. The standard of review of a suppression motion is bifurcated. When a decision on a
motion to suppress is challenged, we accept the trial court’s findings of fact supported by


                                                  2
substantial evidence, but we freely review the application of constitutional principles to the facts
as found. State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a
suppression hearing, the power to assess the credibility of witnesses, resolve factual conflicts,
weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina,
127 Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d
659, 662 (Ct. App. 1999).
       We need not consider the merits of Meadows’ contention, however, because even if the
officers arrested him in violation of the Fourth Amendment, he has failed to identify what
evidence should have been suppressed; specifically, he has failed to identify any evidence
acquired through the alleged illegal entry and arrest and no such evidence is apparent from the
record. As the State points out, the officers did not obtain any substantive evidence as a result of
entering the house to arrest Meadows: Meadows did not make any inculpatory statements and
no contraband was found inside his apartment. Accordingly, we will not address this issue on
appeal. See State v. Hudson, 133 Idaho 543, 545, 989 P.2d 285, 287 (1999).
B.     Sufficiency of the Evidence
       Meadows contends there was insufficient evidence to support the felony concealment of
evidence conviction. Specifically, he contends there was insufficient evidence for a jury to find
that when he threw out several “worthless” items he stole from the victim’s truck, he had the
specific intent to prevent the items from being used as evidence.
       Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt
will not be overturned on appeal where there is substantial evidence upon which a reasonable
trier of fact could have found the prosecution sustained its burden of proving the essential
elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957
P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct.
App. 1991). We will not substitute our view for that of the trier of fact as to the credibility of the
witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn
from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683,
684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light
most favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson,
121 Idaho at 104, 822 P.2d at 1001.




                                                  3
        The statute under which Meadows was charged and convicted provides as follows:
                 Destruction, alteration or concealment of evidence. Every person who,
        knowing that any book, paper, record, instrument in writing, or other object,
        matter or thing, is about to be produced, used or discovered as evidence upon any
        trial, proceeding, inquiry, or investigation whatever, authorized by law, willfully
        destroys, alters or conceals the same, with intent thereby to prevent it from being
        produced, used or discovered, is guilty of a misdemeanor, unless the trial,
        proceeding, inquiry or investigation is criminal in nature and involves a felony
        offense, in which case said person is guilty of a felony . . . .

I.C. § 18-2603 (emphasis added).
        The basis of this charge was the evidence found in a communal trash dumpster at
Meadows’ apartment complex, which included papers and envelopes containing the victim’s
name and a photo depicting the victim’s dog. There was evidence at trial that Meadows was
aware he was seen by two witnesses next to the victim’s vehicle, picking up papers from the
ground and carrying them to his vehicle. It is a reasonable inference from this evidence that
Meadows feared the victim would soon discover the theft and come searching for his belongings,
prompting Meadows to discard certain items. During closing arguments, the prosecutor pointed
out that, for the most part, the stolen items found in Meadows’ vehicle and outside his apartment
did not have the victim’s name on them or other personally identifying characteristics, while the
items found in the dumpster that were the basis of the charge either contained the victim’s name
or were otherwise easily associated with the victim (e.g., the photograph of his dog). On this
basis, the prosecutor requested the jury make the inference that Meadows had concealed and
discarded the easily identifiable items in the dumpster for the purpose of concealing his
connection to the crime--an inference that we deem reasonable.
        On appeal, Meadows contends the State failed to prove his intent in throwing the items
away was to conceal them and asserts this theory was based merely on speculation. Instead, he
argues the “obviously . . . correct answer” is that the items were merely thrown out because they
were “worthless,” not because he was attempting to hide them. However, as the State points out,
Meadows is simply describing an alternate inference that could be drawn from the evidence, and
it is well settled that this Court will not substitute its view for that of the jury as to the reasonable
inferences to be drawn from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001.
Meadows has failed to prove his conviction of concealment of evidence was not supported by
sufficient evidence.

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C.     Felony Concealment Charge
       Meadows also contends that even if this Court finds sufficient evidence to uphold his
conviction for felony concealment of evidence, the conviction nevertheless cannot stand and
should be reduced to a misdemeanor.          Specifically, Meadows argues that in order for
concealment of evidence to be enhanced to a felony offense, the concealment must have
occurred in a criminal investigation involving a felony offense, and the facts that would allow for
such enhancement in this case were not charged in the information. He also argues such facts
were not found by the jury beyond a reasonable doubt because the jury instruction erroneously
omitted that element and, therefore, pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), he
could only be convicted of misdemeanor concealment of evidence.
       According to the plain language of the statute, concealment of evidence is a misdemeanor
offense unless the “the trial, proceeding, inquiry or investigation is criminal in nature and
involves a felony offense, in which case said person is guilty of a felony.” I.C. § 18-2603. Here,
Meadows was charged in the amended information as follows:
              That the Defendant . . . on or about the 17th day of November, 2009, in
       the County of Kootenai, State of Idaho, did willfully conceal papers and/or a
       photo and/or other items knowing that they were about to be produced, used or
       discovered as evidence in an investigation authorized by law and with the intent
       to prevent it from being so produced, used or discovered.

At trial, the jury was given the following relevant jury instruction on the concealment of
evidence charge:
              In order for the Defendant to be guilty of Concealment of Evidence, as
       charged in Count II, the state must prove each of the following:
              1. On or about the 17th day of November, 2009;
              2. in the state of Idaho;
              3. the Defendant, . . . knowing that certain items were about to be
       produced or used or discovered as evidence in a burglary inquiry or investigation
       or proceeding or trial;
              4. did willfully conceal the same with the intent to prevent it from being
       produced or used or discovered.
              If each of the above has been proven beyond a reasonable doubt, you must
       find the defendant guilty. If any of the above has not been proven beyond a
       reasonable doubt, then you must find the defendant not guilty.

(Emphasis added).



                                                5
       Initially we note, as the State points out, Meadows raises this issue for the first time on
appeal, and therefore, we must review his assertion pursuant to fundamental error analysis.
According to the Idaho Supreme Court, to obtain relief on appeal for fundamental error the
following three prongs must be met: (1) the defendant must demonstrate that 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 the error affected the defendant’s substantial rights, meaning (in most instances) that
it must have affected the outcome of the trial proceedings. State v. Perry, 150 Idaho 209, 226,
245 P.3d 961, 978 (2010).
       Under Apprendi, any fact (other than a prior conviction) that increases the maximum
penalty for a crime must be charged, submitted to a jury, and proven beyond a reasonable doubt.
Apprendi, 530 U.S. at 476; State v. Peregrina, 151 Idaho 538, 540, 261 P.3d 815, 817 (2011).
Here, even assuming Apprendi applies to the facts of this case, Meadows has not shown
fundamental error occurred such that his conviction on this charge must be reversed or reduced.
       First, we conclude it is clear the factor of whether the investigation at issue was a
criminal, felony investigation was submitted to the jury by virtue of the concealment of evidence
jury instruction, which specifically referenced the burglary investigation. Although Meadows
relies on State v. Peteja, 139 Idaho 607, 83 P.3d 781 (Ct. App. 2003) to argue the instruction was
deficient, Peteja is distinguishable. In that case, Peteja was charged with felony concealment of
evidence and the jury was instructed at trial that in order to find Peteja guilty of this charge, the
State must have proved Peteja destroyed evidence (a clear baggy with a white powder substance)
that he knew was “about to be produced, used, or discovered as evidence in an investigation
authorized by law.” Id. at 609-10, 83 P.3d at 783-84 (emphasis added). On appeal, this Court
held the jury instruction did not fairly and accurately reflect the applicable law because it omitted
the necessary elements that the investigation was “criminal in nature” and “involve[d] a felony
offense.” Id. at 610, 83 P.3d at 784. Here, Meadows argues that, like in Peteja, the jury
instruction in this case failed to submit the same two elements to the jury and the mere reference
to “burglary” is insufficient because while the jury may have known such a charge was criminal,
they would not necessarily know it was a felony. This argument is untenable, however, because
unlike in Peteja, where the instruction completely omitted any reference to the type of


                                                 6
investigation at issue, the instruction given to the jury in this case specifically denoted a
“burglary” investigation. That the instruction did not define burglary as a criminal, felony
offense is not dispositive, as it is not the province of the jury to classify a specific offense. In
other words, if the jury found, as they did here, that Meadows engaged in concealment of
evidence as to a burglary investigation, it inherently found Meadows engaged in concealment of
evidence in the context of a criminal, felony investigation since burglary is a felony crime
(a point that Meadows does not dispute). Accordingly, this fact was submitted to the jury and
Meadows has failed to show one or more of his constitutional rights was violated.
       In regards to the charging document, as Meadows points out, it does not include a
designation that the investigation concerned burglary or a felony in general. 1           However,
Meadows has not shown this comprised reversible error because he has not demonstrated that,
even if this omission constituted fundamental error, the error affected his substantial
rights--meaning (in most instances) it must have affected the outcome of the trial proceedings. It
was certainly clear to Meadows, regardless of whether it was explicitly stated in the charging
document, that the investigation at issue related to his felony burglary charge. Thus, we conclude
he has failed to show fundamental error in regard to the felony concealment of evidence charge.
D.     Variance
       Meadows argues, for the first time on appeal, there was a fatal variance in that the
charging document varied from the jury instruction and evidence presented at trial with regard to
the obstructing officers charge. The State concedes a variance existed, but contends it did not
rise to the level of fundamental error.
       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). The existence of a variance constitutes a due process violation if it
deprives a defendant of fair notice of the charges against him.         Id.   The existence of an
impermissible variance is a question of law over which we exercise free review. State v.



1
       Although Meadows mentions in passing the possibility of a variance in this regard, he
does not cite any argument or authority for the issue and, therefore, we do not address it on
appeal. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996).


                                                 7
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). 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. See
State v. Brazil, 136 Idaho 327, 329, 33 P.3d 218, 220 (Ct. App. 2001). A determination of
whether a variance is fatal depends on whether the basic functions of the pleading requirement
have been met. State v. Windsor, 110 Idaho 410, 417, 716 P.2d 1182, 1189 (1985); Brazil, 136
Idaho at 329, 33 P.3d at 220. A charging instrument meets the basic functions of the pleading
requirement if it fairly informs the defendant of the charges against which he or she must defend
and enables him or her to plead an acquittal or conviction in bar of future prosecutions for the
same offense. United States v. Bailey, 444 U.S. 394, 395 (1980); Brazil, 136 Idaho at 330, 33
P.3d at 221. 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 sum, a variance between a charging document and a jury instruction or the evidence
adduced at trial requires reversal only when it deprives the defendant of his substantial rights by
violating the defendant’s right to fair notice or leaving 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); Brazil, 136
Idaho at 330, 33 P.3d at 221; Sherrod, 131 Idaho at 59, 951 P.2d at 1286; Colwell, 124 Idaho at
565-66, 861 P.2d at 1230-31.
       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 the error affected the defendant’s
substantial rights, meaning (in most instances) it must have affected the outcome of the trial
proceedings. Perry, 150 Idaho at 226, 245 P.3d at 978.




                                                 8
        The amended information charging Meadows with obstructing officers read, in relevant
part:
                That the Defendant . . . did willfully resist and/or obstruct a public
        officer(s) to-wit: Officers C. Buhl and/or B. McCormick, Coeur d’Alene Police
        Department, in the discharge of a duty of their office by knowingly mak[ing] a
        false report to the officers . . . .

Jury Instruction No. 5 informed the jury as to the charge in nearly identical language to the
amended information. However, the elements jury instruction, No. 22, did not mention the
making of a false report theory of the crime, and read, in relevant part:
               In order for the defendant . . . to be guilty of Resisting or Obstructing an
        Officer, as charged in Count III, the state must prove each of the following:
               1. On or about the 17th day of November, 2009;
               2. in the State of Idaho;
               3. the defendant . . . willfully;
               4. resisted and/or obstructed and/or delayed a public officer;
               5. in the discharge of or attempt to discharge a duty of his office.

In closing argument, the prosecutor informed the jury there were three ways to violate the
statute: resisting, obstructing, and/or delaying. He then stated the jury must decide whether
Meadows “did one or both or all three of those things” and admitted that while there probably
was not evidence to support a conclusion Meadows resisted arrest, there was sufficient evidence
Meadows obstructed or delayed the officers after he was told he was under arrest.             The
prosecutor specifically pointed to evidence that Meadows failed to immediately acquiesce to the
arrest, instead sitting down on the couch and failing to place his hands behind his back, despite
being told repeatedly to do so. The prosecutor argued this behavior was both obstructive and
delaying because the officers had to “spend more time dealing with this issue . . . because he
[wouldn’t] follow their commands.” In addition, he argued Meadows’ behavior in refusing to
walk out of the apartment, resulting in him having to “essentially sort of [be] half carried” out,
and throwing himself down and complaining about injuries afterwards could be interpreted as
delaying and obstructing. Finally, the prosecutor argued Meadows also delayed and obstructed
the officers by “not being truthful about what happened” and giving false statements to the
officers as to certain details.
        The State concedes a variance occurred because Jury Instruction No. 22 allowed the jury
to find Meadows guilty of resisting or obstructing officers under an alternate theory--that he

                                                 9
physically resisted arrest--not included in the charging document and upon which the State
presented evidence at trial and argued in closing. However, the State argues the variance does
not constitute fundamental error because Meadows has failed to carry his burden of establishing
a variance of constitutional significance requiring reversal; specifically, the State asserts
Meadows does not contend the variance left him exposed to double jeopardy and failed to
demonstrate from the record that the variance actually prejudiced the preparation of his defense,
as there is no indication that had he been provided the requisite notice by the charging document,
he would have conducted his cross-examination of the State’s witnesses differently or would
have presented a different theory of his case at trial. In this regard, the State contends neither the
first nor third prongs of Perry were shown.
       We disagree with the State and conclude the variance in this case amounted to a fatal
variance violative of Meadows’ right to due process on the basis the record suggests a possibility
Meadows was misled or prejudiced in the preparation or presentation of his defense. Our
conclusion emanates from several cases in which this Court found a fatal variance existed
between the charging document and jury instructions and evidence presented at trial. In Sherrod,
131 Idaho 56, 951 P.2d 1283, the amended information charged the defendant with aggravated
battery by alleging he “did willfully and unlawfully use force or violence upon the person of [the
victim], causing great bodily harm and/or permanent disfigurement, to wit: by stabbing [the
victim] in the back,” but the trial court instructed the jury that in order for the defendant to be
guilty of aggravated battery, the State must prove the defendant “committed a battery upon [the
victim]; and . . . when doing so the defendant caused great bodily harm, or permanent
disfigurement, or used a deadly weapon or instrument.” Id. at 58, 951 P.2d at 1285 (emphasis
added). Where there was evidence presented at trial that the victim sustained other injuries
besides the stab wounds, this Court determined the instruction departed from the charged offense
because it allowed the jury to find Sherrod caused great bodily harm or permanent disfigurement
based upon any injuries that may have been suffered by the victim, whereas the amended
information specifically limited the alleged injury to stabbing in the back. Id. at 59, 951 P.2d at
1286. We further determined the variance presented no risk of double jeopardy, but concluded it
prejudiced the defendant in the presentation of his defense; specifically, the defendant was not
placed on notice of a need to present evidence or argument that the victim’s other injuries were




                                                 10
of insufficient severity to amount to great bodily harm or permanent disfigurement. Id. at 59-60,
951 P.2d at 1286-87.
       We considered a similar issue in Brazil, 136 Idaho at 329, 33 P.3d at 220, where Brazil
had attacked his former girlfriend and caused numerous injuries, including gunshot wounds to
her knuckle and finger, a lacerated ear lobe, a cut lip, two black eyes, a cut eye, bruising on her
ankles and wrists, and a wound on her scalp. The information charged Brazil with second degree
kidnapping and two counts of aggravated battery under two alternative theories--the first being
that he committed a battery “causing great bodily harm, to-wit: shooting [the victim’s] knuckle,
and/or by means of a deadly weapon; instrument, to wit: a firearm” and the second, that he
committed a battery “causing great bodily harm, to-wit: shooting the tip of [the victim’s] finger,
and/or by means of deadly weapon; instrument, to-wit: a firearm.” Id. However, the jury
instruction defining the elements of aggravated battery only required the jury to find, in relevant
part, that Brazil committed a battery upon the victim and “when doing so the defendant caused
great bodily harm . . . and/or used a deadly weapon or instrument.” Id. We agreed with Brazil
that the elements instruction departed from the charging document by allowing the jury to find
Brazil caused great bodily harm upon any of the injuries suffered by the victim upon which
evidence was produced at trial as opposed to the specific injuries described in the information.
We concluded this constituted a fatal variance, noting the reasoning utilized in Sherrod was
applicable to the facts of the case and concluding the variance prejudiced Brazil in the
presentation of his defense. Specifically, the information failed to place Brazil on notice of a
need to present evidence or argument that the victim’s injuries were of insufficient severity to
amount to great bodily harm. Brazil, 136 Idaho at 331-32, 33 P.3d at 222-23.
       Likewise, in this case, the jury instruction and evidence presented at trial allowed the jury
to find Meadows guilty on a theory not included in the charging document. Despite the fact the
information only presented one theory of resisting or obstructing officers--that Meadows made a
false report to the officers 2--the jury instruction and evidence presented at trial allowed the jury


2
        According to the prosecutor’s closing argument, the State’s theory as to this charge was
that, while being questioned at his apartment regarding the crime, Meadows obstructed or
delayed the investigation by “giving false statements to those officers in terms of how he got to
the party, in terms of knowing [the victim], and some of the other things he said also delayed and
obstructed these officers.” However, as pointed out by Meadows, the viability of this
theory--that an “exculpatory no” type statement in response to a criminal investigation made

                                                 11
to find Meadows guilty of resisting or obstructing officers based on an entirely different
theory--that he resisted, obstructed, and/or delayed by his physical actions when the officers
were attempting to arrest him. Like in Sherrod and Brazil, Meadows was prejudiced in his
defense because the information failed to place him on notice of the need to present evidence or
argument that his physical actions did not amount to a violation of the resisting or obstructing
statute. As in Sherrod, “It is an inescapable conclusion that the variance between the charging
instrument and the jury instructions in this case prejudiced [the defendant] in the presentation of
his defense.” Sherrod, 131 Idaho at 60, 951 P.2d at 1287.
       On this basis, the first prong of Perry is satisfied, as we have found Meadows’ due
process right to notice was violated by the variance. We also conclude the error is 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. It is simply not
logical that a failure to object to a variance that would allow the jury to convict a defendant on
numerous theories, where the information only charged one, would constitute a tactical decision.
Further, we conclude the error implicated Meadows’ substantial rights in that it allowed him to
be tried for a crime of a different nature than that in the charging document and for which he had
no notice to defend against.     Accordingly, the variance constituted fundamental error and
Meadows’ conviction for resisting or obstructing officers is vacated.
                                               III.
                                        CONCLUSION
       We do not address the merits of Meadows’ argument that the district court erred in
denying his motion to suppress because he has identified no evidence emanating from the alleged
illegal arrest that would be subject to suppression even if such a motion was granted. We
conclude there was sufficient evidence for a reasonable trier of fact to find Meadows had the
requisite specific intent to support the concealment of evidence conviction and Meadows failed
to prove fundamental error as to the enhancement of the charge to a felony. Finally, we agree
there existed a fatal variance in regard to the obstructing officers charge and conclude it




while not under oath can form the basis of an obstruction conviction--is questionable. See State
v. Brandstetter, 127 Idaho 885, 888, 908 P.2d 578, 581 (Ct. App. 1995). Given our resolution of
the variance issue, however, we need not reach the merits of this contention.

                                                12
amounted to fundamental error. Accordingly, Meadows’ judgment of conviction for burglary;
felony destruction, alteration, or concealment of evidence; and being a persistent violator is
affirmed, but his judgment of conviction for resisting or obstructing officers is vacated.
       Judge LANSING and Judge MELANSON CONCUR.




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