               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 39044

STATE OF IDAHO,                                  )
                                                 )     2013 Opinion No. 6
       Plaintiff-Respondent,                     )
                                                 )     Filed: January 24, 2013
v.                                               )
                                                 )     Stephen W. Kenyon, Clerk
KIM J. DAY,                                      )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bingham County. Hon. William H. Woodland, District Judge.

       Judgment of conviction for lewd conduct with a minor under the age of sixteen
       and being a persistent violator, vacated.

       Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Kim J. Day appeals from his judgment of conviction for lewd conduct with a minor under
the age of sixteen and being a persistent violator. For the reasons set forth below, we vacate the
judgment.
                                                I.
                                 FACTS AND PROCEDURE
       In 2011, Day was charged with lewd conduct with a minor under the age of sixteen, I.C.
§ 18-1508, and being a persistent violator, I.C. § 19-2514. At trial, the alleged victim testified
that, while she was in the hot tub with Day, they played a game called “ice wars,” which she
described as taking ice cubes or snow into the hot tub to try to put “down each other’s pants.”
The victim testified that, on one occasion while playing this game, Day stuck his hand down her
bikini bottom and felt around her vagina. She also testified that, on that same occasion, when
she tried to stick snow down Day’s swimsuit, he grabbed her elbow and stuck it further down so

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she felt his penis. A friend of the victim testified that she saw Day put ice into the victim’s
bikini top and touch her breast. Day denied having ever put his hand into the victim’s bikini to
feel her vagina or her breast. He further testified that any touching would have been accidental
and not sexual in nature. Day also testified that he would never force the victim’s hand down his
swimsuit to touch his penis because he had cancer in his genitals and, if someone were to touch
them, it would cause immense pain.
       The state’s information charging Day with lewd conduct alleged that Day “had manual to
genital contact with [the victim] and/or caused [the victim] to have manual to genital contact
with” Day. However, the jury was instructed that, in order for Day to be guilty of lewd conduct,
the state had to prove that, with intent to arouse, appeal to, or gratify the lust passions or sexual
desires of Day, the victim, or some other person, Day “committed an act or acts of manual-
genital contact or any other lewd or lascivious act upon or with the body of” the victim
(emphasis added). The jury found Day guilty of lewd conduct with a minor under the age of
sixteen and Day admitted to being a persistent violator. The district court sentenced Day to a
unified term of fifteen years, with a minimum period of confinement of five years. Day appeals.
                                                 II.
                                           ANALYSIS
       Day argues, for the first time on appeal, that he was denied his right to due process
because of a fatal variance between the charging document and the jury instructions. The
existence of an impermissible variance is a question of law over which we exercise free review.
State v. 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). 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). 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. State v. Brazil, 136 Idaho 327, 329, 33 P.3d 218, 220
(Ct. App. 2001). 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.


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App. 1993). In other words, a variance between a charging document and a jury instruction
requires reversal only when it deprives the defendant of fair notice of the charge against which
he or she must defend or leaves 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). In State v. Folk, 151 Idaho 327, 342, 256
P.3d 735, 750 (2011), the Idaho Supreme Court stated that the instructions to the jury must
match the allegation in the charging document as to the means by which a defendant is alleged to
have committed the crime charged. Otherwise, the Court explained, there can be a fatal variance
between the jury instructions and the charging document. Id. 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 there is a reasonable possibility that the error affected the outcome
of the trial. State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010).
       Day argues that the jury instruction allowed Day to be found guilty of lewd conduct for
contact other than manual-genital contact, which was the only type of contact for which Day was
charged in the information. Specifically, Day asserts that touching of the victim’s breast area,
which was the only type of contact about which the jury heard testimony in addition to the
manual-genital contact, is a different type of contact from that originally charged and, further, is
not contact for which Day could be found guilty of lewd conduct. Thus, Day concludes that the
variance between the charging document and the jury instructions violated his right to due
process and thereby amounted to constitutional error.
       In Folk, 151 Idaho at 339, 256 P.3d at 747, the state charged Folk with lewd conduct by
committing oral-genital contact. The jury was instructed as follows:
               In order for the defendant to be guilty of Lewd and Lascivious Conduct,
       the state must prove each of the following:
               1.      On or about December 25, 2007
               2.      in the state of Idaho
               3.      the defendant Jonathan Earl Folk committed an act of oral-genital
       contact upon or with the body of [Child].
               4.      [Child] was a child under sixteen (16) years of age, and
               5.      the defendant committed such act with the specific intent to arouse,
       appeal to, or gratify the lust or passions or sexual desires of either of them.

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             If any of the above has not been proven beyond a reasonable doubt, then
       you must find the defendant not guilty. If each of the above has been proven
       beyond a reasonable doubt, you must find the defendant guilty.

During the jury’s deliberations, it sent the court a note asking three questions. The first two
questions asked whether the jury had to find that Folk committed an act of oral-genital contact
upon the child or whether the jury could simply find that Folk committed some other act of lewd
and lascivious conduct. The third question asked, if the jury could find Folk guilty of some act
of lewd and lascivious conduct other than oral-genital contact, what the definition of lewd and
lascivious conduct was.     The court responded with a note stating as follows: “‘Lewd and
Liscivious [sic] Conduct’ is the statutory name for a category of sexual touching crimes that
include oral-genital contact, genital-genital contact, genital-anal contact, manual-genital contact,
manual-anal contact, oral-anal contact, etc. Here the allegation is oral-genital (mouth to penis)
contact, which is, by definition, lewd and lascivious conduct.” Id. at 340, 256 P.3d at 748
(emphasis added).
       In analyzing whether there was a fatal variance between the charging document and jury
instructions, the Idaho Supreme Court first reiterated that Folk was charged with lewd conduct
by committing oral-genital contact upon the child. The Court then stated that the instructions to
the jury must match the allegation in the charging document as to the means by which a
defendant is alleged to have committed the crime charged.           Id. at 342, 256 P.3d at 750.
Otherwise, the Court explained, there can be a fatal variance between the jury instructions and
the charging document. Id. The Court also stated that the jury instruction must not permit the
defendant to be convicted of conduct that does not constitute the type of crime charged. Id. The
Court then explained that there was testimony from the mother that, when she entered the
bedroom, she saw the child lying on his back on the bed and Folk kneeling down in front of the
child with the child’s legs around Folk and his hands on the child’s hips. Folk testified that, just
prior to the mother walking into the bedroom, he had been tickling the child’s feet and belly.
The Court reasoned that, if the jury believed that Folk was intending to gratify his lust, passions,
or sexual desires, which the Court determined the jury obviously did, the jury could have found
Folk guilty based upon this type of touching, due to the inclusion of “etc.” in the instruction
defining lewd and lascivious conduct. The Court also determined that this type of physical
contact would not constitute the crime of lewd conduct. Thus, the Court concluded that the jury


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instruction would have permitted the jury to find Folk guilty of conduct that did not constitute
the crime of lewd conduct and vacated Folk’s judgment of conviction. 1 Id.
       In this case, as explained above, the state’s information charging Day with lewd conduct
alleged that Day “had manual to genital contact with [the victim] and/or caused [the victim] to
have manual to genital contact with” Day. However, the jury was instructed that, in order for
Day to be guilty of lewd conduct, the state had to prove that Day “committed an act or acts of
manual-genital contact or any other lewd or lascivious act upon or with the body of” the victim
(emphasis added). Inclusion of the language “or any other lewd or lascivious act” in the jury
instruction had the same consequence as inclusion of the term “etc.” in the jury instruction at
issue in Folk. Specifically, while Day was charged with lewd conduct by committing manual-
genital contact with the alleged victim, a friend of the victim testified that she saw Day put ice
into the victim’s bikini top and touch her breast. By determining that Day was guilty of lewd
conduct, the jury believed Day was intending to gratify his lust, passions, or sexual desires and
could have found Day guilty based upon the touching of the alleged victim’s breast due to the
inclusion of the language “or any other lewd or lascivious act” in the jury instruction. However,
this type of physical contact would not constitute the crime of lewd conduct. See State v.
Kavajecz, 139 Idaho 482, 487, 80 P.3d 1083, 1088 (2003). Thus, the jury instruction would have
permitted the jury to find Day guilty of conduct that did not constitute the crime of lewd
conduct. 2



1
       The Folk Court did not specifically analyze whether Folk was deprived of fair notice or
was at risk of double jeopardy. Because the instructions would have permitted the jury to find
Folk guilty of conduct that did not constitute the crime of lewd conduct, the judgment of
conviction was vacated.
2
        We note that Idaho Criminal Jury Instruction 929 for Lewd and Lascivious Conduct
currently provides that, among other elements, in order for the defendant to be guilty, the state
must prove:

       3.      the defendant [name] committed [an act of] [genital-genital contact] [or]
       [oral-genital contact] [or] [anal-genital contact] [or] oral-anal contact] [or]
       [manual-anal contact] [or] [manual-genital contact] [or] [any other] [a] [lewd or
       lascivious act] upon or with the body of [name of victim] . . .

While the model instruction includes “any other lewd or lascivious act,” we caution against its
use for the very reason a problem exists in this case. While inclusion of the language could be

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        We also note that, in State v. Jones, 140 Idaho 41, 49, 89 P.3d 881, 889 (Ct. App. 2003),
Jones claimed there was a variance because the state presented evidence of two incidents of
improper touching of the alleged victim that were not the bases of the charges. Jones argued that
this amounted to a fatal variance because the jury could have used this evidence to convict him,
thereby resulting in a conviction for a crime that he was not charged with. We determined that
Jones’s argument was without merit.        Specifically, the testimony described by Jones was
admitted as evidence of other misconduct under I.R.E. 404(b). Immediately after presentation of
this evidence, the court gave the jurors a limiting instruction, informing them that they had just
heard evidence that the defendant committed wrongs or acts other than that for which the
defendant was on trial and that this evidence was presented only for the limited purpose of
proving motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake. We
concluded that, given this limiting instruction, no fatal variance existed. Id. Here, similar to
Jones, the state presented evidence that Day touched the victim’s breast that was not the basis of
the state’s charge against Day for lewd conduct. However, there is no evidence in the record
indicating why such testimony was admitted or that such testimony was admitted as evidence of
other misconduct under I.R.E. 404(b). Further, there was no limiting instruction informing the
jury it had just heard evidence that Day had committed wrongs or acts other than that for which
he was on trial. Thus, based upon Folk and Jones, we conclude that a fatal variance existed in
this case.
        The state argues that Day has failed to satisfy the second prong of Perry because he has
not shown that the decision of his trial counsel to not object to the jury instructions was based on
ignorance of the law or other objective shortcomings, as opposed to being merely a tactical
decision. Specifically, the state asserts that Day’s counsel may have known the jury instruction
was given in error and might have chosen to leave the variance intact for potential appellate
reversal should Day be convicted in an attempt at “sandbagging.” However, the state’s assertion
would have this Court speculate that Day’s counsel made a tactical decision to allow Day to be




harmless if no evidence of any conduct which might be considered lewd and lascivious existed in
the case beyond the specifically charged conduct, see Folk, 151 Idaho at 340, 256 P.3d at 748,
the phrase adds nothing to a proper instruction that must identify the particular type of conduct
alleged.


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found guilty of conduct that does not constitute the crime of lewd conduct--touching of the
breast--simply for the sake of potentially obtaining appellate reversal. This is not conduct of a
reasonable trial strategist.
        Further, this Court addressed a similar situation in State v. Sutton, 151 Idaho 161, 254
P.3d 62 (Ct. App. 2011). In that case, the state argued, in the context of an omitted element in a
jury instruction being raised for the first time on appeal, the error did not plainly exist because
Sutton’s failure to object may have been for tactical reasons. Specifically, the state hypothesized
that defense counsel knew the instruction was error and speculated that Sutton decided not to
object because the instructional error was minimal and Sutton could attempt to secure acquittal
on his alibi defense, knowing that in the event that he lost he could appeal and claim the
instruction was error with the hope of receiving a new trial. As in this case, the state asserted in
Sutton that this was exactly the type of “sandbagging” that Perry warned against. In rejecting
the state’s argument, we determined that there was no indication in the record that Sutton knew
any more about the law than the state or the trial court, nor was there any evidence or indication
that Sutton was attempting to sandbag the court. We noted that there was no evidence Sutton
presented the instruction to the trial court and that we were left with only the state’s speculation
that Sutton made a tactical decision not to object. This Court concluded that information outside
the record was not necessary to determine that Sutton’s failure to object was not a strategic
decision. Sutton, 151 Idaho at 167, 254 P.3d at 68.
        Similarly, in this case, there is no indication in the record that Day knew any more about
the law than the state or the trial court, nor was there any indication that Day was attempting to
sandbag the court. Indeed, during closing argument, the state argued to the jury that, pursuant to
the jury instruction at issue in this case, in order for Day to be guilty of lewd conduct as charged,
the state had to prove that Day committed an act of manual-genital contact or any other lewd or
lascivious act upon the body of the victim. The state then asserted it had done so because it had
presented testimony of the victim that indicated Day put his hand down her bikini bottom and
felt her vagina and forced her hand down his swimsuit to touch his penis and has also presented
testimony of the victim’s friend indicating that Day stuck his hand inside the victim’s bikini top
and touched her breast. Additionally, the state presented the instruction to the district court that
included the alternate element of “any other lewd or lascivious act upon or with the body of” the
victim. We are left with only the state’s speculation that Day made a tactical decision not to


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object. We conclude that information outside the record is not necessary to determine that Day’s
failure to object to the jury instruction was not a strategic decision.
       The state finally argues that Day has failed to satisfy the third prong of Perry.
Specifically, the state asserts that, while it is hypothetically possible that the variance in this case
allowed the jury to find Day guilty solely on his contact with the victim’s breast and not either
his contact with her vaginal area or on her contact with his genitals, Day cannot affirmatively
show that this occurred. However, Perry does not require that Day make such an affirmative
showing. Rather, as Day asserts, Perry requires that Day must demonstrate there is a reasonable
possibility that the error affected the outcome of the trial. Perry, 150 Idaho at 226, 245 P.3d at
978. As the state concedes, the variance allowed a possibility that the jury found Day guilty
solely on his contact with the victim’s breast, which is contact for which Day was not charged in
the information and for which he could not be convicted of lewd conduct. See Kavajecz, 139
Idaho at 487, 80 P.3d at 1088. We conclude that Day has demonstrated there is a reasonable
possibility that the variance in this case affected the outcome of trial.
                                                  III.
                                          CONCLUSION
       Day has demonstrated that a fatal variance between the charging document and the jury
instructions existed in this case and that this variance amounted to fundamental error.
Accordingly, Day’s judgment of conviction for lewd conduct with a minor under the age of
sixteen and being a persistent violator is vacated.
       Judge LANSING and Judge GRATTON, CONCUR.




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