               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 44688

STATE OF IDAHO,                                )
                                               )    Filed: October 19, 2018
       Plaintiff-Respondent,                   )
                                               )    Karel A. Lehrman, Clerk
v.                                             )
                                               )    THIS IS AN UNPUBLISHED
ISRAEL FULTON,                                 )    OPINION AND SHALL NOT
                                               )    BE CITED AS AUTHORITY
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Jefferson County. Hon. Alan C. Stephens, District Judge.

       Judgment of conviction for sexual battery of a minor child sixteen or seventeen
       years of age, vacated and case remanded.

       Eric D. Fredericksen, State Appellate Public Defender; Elizabeth A. Allred,
       Deputy Appellate Public Defender, Boise, for appellant. Elizabeth A. Allred
       argued.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent. Russell J. Spencer argued.
                 ________________________________________________

GUTIERREZ, Judge
       Israel Fulton appeals from his judgment of conviction for sexual battery of a minor child
sixteen or seventeen years of age. Fulton argues there was a fatal variance between the charging
document and three jury instructions; the court erred in instructing the jury; the prosecutor
committed misconduct on multiple occasions; Fulton’s right to due process was violated first,
when the jury returned a verdict on a crime for which he had not been charged and second, when
the district court entered a judgment of conviction for a crime he had not been found guilty of;
and the district court erred in informing the jury that Fulton was charged with a felony. For the
reasons provided below, we vacate Fulton’s judgment of conviction for sexual battery of a minor
child sixteen or seventeen years of age and remand the case.



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                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       The State charged Fulton, by information, with sexual battery of a minor child sixteen or
seventeen years of age, Idaho Code § 18-1508A(1)(a). The information specified that Fulton
committed sexual battery by having lewd and/or lascivious contact with and/or upon the body of
a minor, to-wit: by manual-genital contact. Fulton entered a plea of not guilty, and the case
proceeded to trial. The jury found Fulton guilty of sexual abuse of a child amounting to lewd
and lascivious conduct; however, the district court entered a judgment of conviction for the
charge of sexual battery of a minor child. Fulton timely appeals.
                                                 II.
                                           ANALYSIS
       We determine the issue of whether there was a fatal variance between the information
and three jury instructions to be dispositive and therefore do not find it necessary to address the
remaining issues, albeit recognizing some appear to have merit. Fulton argues for the first time
on appeal that he was denied his right to due process because a fatal variance existed at his trial
between the information, which included specific language that Fulton had committed sexual
battery of a minor child by engaging in manual-genital contact with the child, and the jury
instructions setting forth the elements of sexual battery of a child (Jury Instruction No. 7) as well
as the statutory definition of lewd and lascivious acts (Jury Instruction No. 4 and 10). The State
contends the claimed variance was not fatal because the instructions did not change the nature or
degree of the crime with which Fulton was charged and that the claimed variance did not leave
Fulton open to the risk of double jeopardy.
       Ordinarily, Idaho Criminal Rule 30(b)(4) prevents a party from claiming that a jury
instruction was erroneous unless the party objected to the instruction prior to the start of jury
deliberations. State v. Southwick, 158 Idaho 173, 181, 345 P.3d 232, 240 (Ct. App. 2014).
However, even without a contemporaneous objection at trial, claims of instructional error may be
reviewed for the first time on appeal under the fundamental error doctrine. Id. Accordingly,
even though Fulton did not object at trial to the jury instructions, we will analyze Fulton’s fatal
variance claim under the three-prong fundamental error test.
       In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court
abandoned the definitions it had previously utilized to describe what may constitute fundamental

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error. The Perry Court held that an appellate court should reverse an unobjected-to error when
the defendant persuades the court that the alleged error:       (1) violates one or more of the
defendant’s unwaived constitutional rights; (2) is clear or obvious without the need for reference
to any additional information not contained in the appellate record; and (3) affected the outcome
of the trial proceedings. Id. at 226, 245 P.3d at 978. We will address each prong in turn.
A.     Unwaived Constitutional Right
       The existence of an impermissible variance between a charging instrument and the jury
instructions 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). Jury instructions should be congruent with the
charging document in regard to the means by which the crime was allegedly committed. State v.
Hooper, 145 Idaho 139, 146-47, 176 P.3d 911, 918-19 (2007). A variance may occur when the
jury instructions do not match the charging document. State v. Folk, 151 Idaho 327, 342, 256
P.3d 735, 750 (2011). When due process is violated, a variance is fatal. See De Jonge v.
Oregon, 299 U.S. 353, 362 (1937); State v. Cariaga, 95 Idaho 900, 904, 523 P.2d 32, 36 (1974).
In other words, 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).
       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). Application of this standard is a two-step process.
State v. Gas, 161 Idaho 588, 592, 388 P.3d 912, 916 (Ct. App. 2016). First, the court determines
whether there was a variance between the charging document and the given jury instructions. Id.
If a variance exists, the court examines whether it is fatal (i.e., whether it rises to the level of
prejudicial error necessitating reversal of the conviction). Id. A variance requires reversal only
when it deprives the defendant of his or her right to fair notice or leaves him or her open to the
risk of double jeopardy. Windsor, 110 Idaho at 417-18, 716 P.2d at 1189-90; State v. Sherrod,
131 Idaho 56, 59, 951 P.2d 1283, 1286 (Ct. App. 1998). Thus, a variance between the facts
alleged in the pleading instrument and the proof at trial generally will not be deemed fatal to the
prosecutor’s case unless there has been such a variance as to affect the substantial rights of the
accused. Windsor, 110 Idaho at 417, 716 P.2d at 1189; State v. Colwell, 124 Idaho 560, 565, 861

                                                 3
P.2d 1225, 1230 (Ct. App. 1993). A review of whether the defendant was deprived of his or her
right to fair notice requires the court to determine whether the record suggests the possibility that
the defendant was misled or embarrassed in the preparation or presentation of his or her defense.
Windsor, 110 Idaho at 418, 716 P.2d at 1190.
       The parties agree a variance existed between the charging instrument and the jury
instructions. However, they disagree over whether the variance is fatal. Fulton was charged by
information with committing sexual battery by having lewd and/or lascivious contact with and/or
upon the body of a minor, a child sixteen or seventeen years of age, to-wit: sixteen years old, by
manual-genital contact. Jury Instruction No. 4 provided in pertinent part:
       It is a crime for any person at least five (5) years of age older than a minor child
       who is sixteen (16) or seventeen (17) years of age, who, with the intent of
       arousing, appealing to, or gratifying the lust, passion, or sexual desires of such
       person, minor child, or third party, to: (a) commit any lewd or lascivious act or
       acts upon or with the body or any part or any member thereof of such minor child
       including, but not limited to, genital-genital contact, oral-genital contact, anal-
       genital contact, oral-anal contact, manual-anal contact, or manual-genital contact,
       whether between persons of the same or opposite sex, or who shall involve such
       minor child in any act of explicit sexual conduct.
(Emphasis added.) Jury Instruction No. 10 provided in pertinent part:
       As used in these jury instructions, the following words have the following
       meanings . . . B, “erotic fondling” means touching a person’s clothed or
       unclothed genitals or pubic areas, developing or undeveloped genitals or pubic
       area if the person is a child, buttocks, breasts if the person is a female child, for
       the purpose of real or simulated overt sexual gratification or stimulation of one or
       more of the persons involved. . . . C, “explicit sexual conduct” means sexual
       intercourse, erotic fondling, erotic nudity, masturbation, sadomasochism, sexual
       excitement, or bestiality.
(Emphasis added.) Jury Instruction No. 7 provided:
       In order for the defendant to be guilty of Sexual Battery of a Child Amounting to
       Lewd and Lascivious conduct, the state must prove each of the following:
       (1) between July 31 and August 2, 2015; (2) in the state of Idaho; (3) the
       defendant Israel Fulton committed an act of manual-genital contact, or any other
       lewd or lascivious act, upon or with the body of D.B.; (4) the defendant engaged
       in such conduct with the specific intent of arousing, appealing to, or gratifying the
       lust, passion, or sexual desires of the defendant, of such child, or some other
       person; (5) D.B. was 16 or 17 years of age; and (6) the defendant was at least
       5 years of age older than D.B.
(Emphasis added.) It is clear that the charging instrument does not match the jury instructions,
constituting a variance. The charging document solely alleged Fulton committed one act of

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manual-genital contact. The jury instructions provide that Fulton could be found guilty for “any
other lewd or lascivious act upon or with the body of D.B.” or other “act of explicit sexual
conduct.”   Having determined there was a variance, we must now determine whether the
variance was fatal.
       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. State v. Wolfrum, 145 Idaho 44, 47, 175 P.3d 206, 209 (Ct. App. 2007); Jones,
140 Idaho at 49, 89 P.3d at 889; Colwell, 124 Idaho at 566, 861 P.2d at 1231. When a
constructive amendment occurs, the defendant is deprived of fair notice and misled or
embarrassed in the preparation or presentation of his defense. Berger v. United States, 295 U.S.
78, 82-83 (1935); Windsor, 110 Idaho at 418, 716 P.2d at 1190; State v. Ormesher, 154 Idaho
221, 223, 296 P.3d 427, 429 (Ct. App. 2012); Wolfrum, 145 Idaho at 47, 175 P.3d at 209.
       In State v. Day, 154 Idaho 476, 480-81, 299 P.3d 788, 792-93 (Ct. App. 2013), this Court
held that including the language “or any other lewd or lascivious act” in the jury instruction,
despite Day being charged with committing lewd conduct by manual-genital contact, was a fatal
variance because there was evidence that Day touched the victim’s breast, which would have
permitted the jury to find Day guilty of something other than lewd conduct by manual-genital
contact. Similarly, in State v. Montoya, 140 Idaho 160, 166, 90 P.3d 910, 916 (Ct. App. 2004),
we held that because the information charged Montoya with acts of manual-genital, oral-genital,
and genital-genital contact, the inclusion of the language “or any other lewd or lascivious act”
was erroneous, especially in light of the fact that there was evidence that the defendant kissed
and touched the breasts of the victim.
       In contrast, in Ormesher, the information alleged the defendant committed sexual abuse
by touching a minor’s breasts, while the jury instruction setting out the elements of the crime did
not reference the alleged touching. Id. at 223-24, 296 P.3d at 429-30. Another jury instruction
defined “sexual contact” as “any physical contact between the child and a person which is caused
by the actor, or the actor causing the child to have self contact.” Id. The Court concluded that
the jury instructions were not consistent with the information and thus constituted a variance
because the jury was allowed to find the defendant guilty based on any sort of sexual contact, not
just the touching alleged in the information. Id. at 224, 296 P.3d at 430. However, the Court

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determined that the variance was not fatal because the defendant did not show “he was misled or
embarrassed in the preparation of his defense” as he offered a defense, through witness
testimony, against the other factual scenarios of sexual contact discussed at trial that the jury
could have used to convict him of sexual abuse. Id. at 224-25, 296 P.3d at 430-31.
       Like in Day and Montoya, Fulton was charged with committing a sex crime by specific
means (i.e., manual-genital contact). At trial, there was evidence that Fulton kissed the victim
and touched her breasts. By including the language “any other lewd or lascivious act upon or
with the body [of the victim]” in Jury Instruction No. 7 and “any act of explicit sexual conduct”
in Jury Instruction No. 4, the trial court allowed the jury to convict Fulton based on evidence of
the kissing and breast touching. Because the means by which the crime could have been
committed set forth in the jury instructions does not match the charging document, the
discrepancy here constitutes a variance. 1 In contrast to Ormesher, Fulton did not provide a
defense against the other factual scenarios that could have been used to convict him; but rather,
freely admitted to those instances of touching as part of his defense, something he may not have
done had he known he was admitting to uncharged acts that could be the basis for a conviction.
       Because the variance between the information and the jury instructions in this case left
Fulton without notice of the crime he was defending against, his right to due process was
violated. The information failed to place Fulton on notice of a need to present evidence or
argument against the other factual scenarios that could have been used to convict him (i.e.,
kissing the victim and touching her breasts). Therefore, we conclude that the variance between
the allegations of the information and the jury instructions was fatal. Accordingly, Fulton’s
unwaived constitutional right to due process was violated and the first prong of Perry is satisfied.
B.     Plain Error
       Regarding prong two, Fulton argues that the failure to object was clearly not a strategic
decision, as he gained “absolutely no strategic advantage by giving the jury an opportunity to
convict him on uncharged conduct that does not meet the definition of lewd conduct.” Fulton
asserts that it clearly would not be a reasonable strategy to allow oneself to be convicted of

1
        During deliberations, the jury asked the district court for a definition of “lewd and
lascivious act.” The district court provided the following definition: “Lascivious means wanton,
lewd, lustful, licentious, libidinous, salacious, period. Lewd means licentious, lecherous,
dissolute, sensual, debauched, impure, obscene, salacious, pornographic, period.”


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conduct not constituting the charged crime simply for the sake of potential appellate reversal.
The State provides no argument regarding the second prong. 2
       To establish the second prong of Perry, the error must plainly exist without the need for
any additional information outside the appellate record, including information as to whether the
failure to object was a tactical decision. Id. at 228, 245 P.3d at 980. In Day, a similar variance
existed. The charging document charged the defendant with having “manual to genital contact
with [the victim] and/or caused [the victim] to have manual to genital contact with [the
defendant]. Id. at 478, 299 P.3d at 790; see also State v. Sutton, 151 Idaho 161, 166, 2254 P.2d
62, 67 (Ct. App. 2011). The jury instructions provided that “in order for [the defendant] to be
guilty . . . the State had to prove that . . . [the defendant] ‘committed an act or acts of manual-
genital contact or any other lewd or lascivious act upon or with the body’ of the victim.” Day,
154 Idaho at 478, 299 P.3d at 790. We concluded that the second prong of Perry was met
because the record contained no indication that the defendant knew more about the laws than the
State or the trial court or that the defendant was attempting to sandbag the court. We determined
that to speculate that a defendant’s attorney made a tactical decision to allow his client to be
found guilty of conduct that did not constitute the crime charged, simply for the sake of a
potential reversal on appeal, was not a reasonable strategy. Id. at 481, 299 P.3d at 793. Further,
we noted that during closing argument the State argued to the jury that, pursuant to the jury
instruction, the State had to prove that the defendant committed an act of manual-genital contact
or any other lewd or lascivious act upon the body of the victim. The State argued it had proven
this because it presented testimony from the victim that the defendant put his hand down the
victim’s bikini bottom as well as testimony from the victim’s friend indicating the defendant
stuck his hand inside the victim’s bikini top and touched her breast. Id. at 482, 154 Idaho 476,
299 P.3d at 794. We determined that the error was clear from the record, and the failure to
object was not a strategic decision. Id.
       Similarly, the record here contains no indication that Fulton knew anymore about the
laws than the State or the trial court, or that Fulton was attempting to sandbag. Indeed, during
closing argument, the State argued to the jury that, pursuant to the jury instruction in this case, in
order for Fulton to be guilty of sexual battery as charged, the State had to prove that Fulton

2
        We note that the State makes an argument regarding prong two; however, it only relates
to the variance in the verdict form and not the variance in the elements instruction.
                                                  7
committed any other lewd or lascivious act upon the body of the victim or any other act of
explicit sexual conduct, not limited to the enumerated acts. The State then asserted the jury
could find the other acts Fulton committed, even without deciding the genital issue, constituted
lewd and lascivious conduct. In addition, the State then reiterated that the State just had to prove
that Fulton committed any lewd or lascivious act, not just manual-genital. To speculate that
Fulton’s failure to object simply for the sake of potentially obtaining an appellate reversal is not
conduct of a reasonable trial strategist. Therefore, we conclude that information outside the
record is not necessary to determine that Fulton’s failure to object to the jury instructions was not
a strategic decision, and the error is clear from the record. Thus, the second prong of Perry is
satisfied.
C.      Prejudicial Error
        Last, Perry requires that Fulton demonstrate there is a reasonable possibility that the error
affected the outcome of the trial. Id. at 226, 245 P.3d at 978. The variance here allowed a
possibility that the jury found Fulton guilty solely on his contact with the victim’s breast, which
is contact for which Fulton was not charged in the information. The prosecutor even informed
the jury that it could do so during closing argument, stating: “You can find the other acts that he
committed, even without deciding the genital issue--that it was lewd and lascivious: sitting on
his lap, fondling her breast, taking her bra off, kissing her.”           Accordingly, Fulton has
demonstrated there is a reasonable possibility that the variance of this case affected the outcome
of the trial. Thus, the third prong of Perry is satisfied. Whereas reversal is required due to the
fulfillment of all three prongs of Perry on the fatal variance issue, we need not address the
various other errors raised in this appeal.
                                                IV.
                                          CONCLUSION
        We conclude the variance between the information and the jury instructions constituted a
fatal variance amounting to fundamental error. Accordingly, Fulton’s judgment of conviction is
vacated, and the case is remanded for further proceedings consistent with this opinion.
        Judge HUSKEY and Judge LORELLO CONCUR.




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