                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42335

STATE OF IDAHO,                                 ) 2015 Opinion No. 81
                                                )
       Plaintiff-Respondent,                    ) Filed: December 8, 2015
                                                )
v.                                              ) Stephen W. Kenyon, Clerk
                                                )
SCOTT LEWIS OSTLER,                             )
                                                )
       Defendant-Appellant.                     )
                                                )

       Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bear
       Lake County. Hon. Stephen S. Dunn, District Judge.

       Judgment of conviction, affirmed in part, vacated in part, and case remanded.

       Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy
       Appellate Public Defender, Boise, for appellant. Jason C. Pintler argued.

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

GUTIERREZ, Judge
       Scott Lewis Ostler appeals from his judgment of conviction after he was found guilty of
three counts of lewd conduct with a minor and one count of sexual abuse of a child. On appeal,
Ostler argues that his right to due process of law was violated when the prosecutor charged him
with an additional felony after the district court granted Ostler a new trial. For the reasons set
forth below, we affirm in part, vacate in part, and remand.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       At his first trial, Ostler was charged with two counts of lewd conduct with a minor child
under sixteen (Counts I & II), Idaho Code § 18-1508, and one count of sexual abuse of a child
under the age of sixteen years (Count III), I.C. § 18-1506(a). A jury found Ostler guilty of all
three counts.


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        Prior to sentencing, the district court, sua sponte, requested briefing from the parties on
the issue of whether the court had subject-matter jurisdiction over the case, as it was unclear
whether Ostler was at least fourteen years of age at the time of the commission of the two acts of
lewd conduct. The two charges for lewd conduct were against two different victims and were for
acts occurring between 2000 and 2008. Ostler, being born May 25, 1988, was as young as
twelve years of age during the time span charged. Under I.C. § 18-216, courts did not have
jurisdiction over a person’s unlawful acts prior to fourteen years of age. 1 In response to the
court’s request for briefing on the jurisdictional issue, Ostler filed a motion for a judgment of
acquittal, basing his motion, in part, upon the State’s improper prosecution of acts Ostler
committed before he was fourteen years old and the corresponding presentation of evidence
related to those acts.
        In its briefing and at a hearing on the issue, the State objected to Ostler’s motion, arguing
that the court did have jurisdiction over the charged acts, as the charges included conduct when
Ostler was over fourteen, and that the inclusion of evidence of Ostler’s conduct prior to age
fourteen constituted harmless error. Ultimately, the court set aside the convictions and ordered a
new trial pursuant to I.C. § 19-2406(6) and Idaho Criminal Rule 34. The district court ordered
the State to file a new information charging only conduct that occurred after Ostler was fourteen
years old. During the hearing, defense counsel suggested that the State’s amended charges might
substantially differ enough from the original charges to warrant a preliminary hearing, but the
State and court both disagreed and no preliminary hearing was held.
        In its amended information, the State charged Ostler with four felony counts instead of
three. The amended information charged three counts of lewd conduct with a minor under
sixteen (Counts I, II, and III), I.C. § 18-1508, and one count of sexual abuse of a child under
sixteen (Count IV), I.C. § 18-1506(a). The sexual abuse charge was identical to the charge in the
first information. In modifying Count I of the original lewd conduct with a minor charge, the
State limited the charge to conduct occurring between 2006 and 2008. In modifying Count II of
the original information, the State separated the single lewd conduct charge into two separate
charges: the new Count II covered conduct occurring at the east beach of Bear Lake between


1
       Although this statute was in effect at the time of the charging and trial, it has since been
repealed, effective July 1, 2015. 2015 Idaho Sess. Laws, Ch. 113, § 1.


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2006 and 2008, and the new Count III covered conduct occurring at the north beach of Bear Lake
between 2007 and 2011. At no time did the State offer any explanation for its decision to
separate the single felony charge into two separate felony charges.
       The case proceeded to a jury trial. Ostler did not object to the inclusion of the additional
charge at any time. The jury found Ostler guilty on all four counts. Ostler timely appeals.
                                                 II.
                                            ANALYSIS
       Ostler claims that the prosecutor’s act of charging him with an additional felony after the
mistrial violated his right to due process. Specifically, he alleges that the State’s conduct, which
exposed him to increased jeopardy, was a vindictive prosecution in violation of his right to due
process under the Fourteenth Amendment to the United States Constitution. Ostler raises his
objection to the fourth felony charge for the first time on appeal.
       Generally, issues not raised below may not be considered for the first time on appeal.
State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Idaho decisional law, however,
has long allowed appellate courts to consider a claim of error to which no objection was made
below if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho
559, 571, 165 P.3d 273, 285 (2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262
(1971). 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
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.
       With respect to the third prong of Perry, the alleged error was not harmless--it obviously
affected the outcome of the proceedings because Ostler was convicted of an additional felony.
For that reason, our analysis focuses on the first and second prongs of Perry.
       Under the first prong of Perry, we address whether adding an additional charge after
Ostler was granted a new trial violated his constitutional right to due process. Ordinarily, the
decision on whether to prosecute and what charge to file is a matter of prosecutorial discretion.
State v. Storm, 123 Idaho 228, 233, 846 P.2d 230, 235 (Ct. App. 1993). However, a defendant’s

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constitutionally protected right to due process is implicated when a prosecutor vindictively
retaliates against a defendant for exercising a legally protected right. Blackledge v. Perry, 417
U.S. 21, 27-28 (1974) (extending North Carolina v. Pearce, 395 U.S. 711, 724 (1969), overruled
on other grounds by Alabama v. Smith, 490 U.S. 794 (1989), to cover prosecutors in addition to
judges); Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (“To punish a person because he has
done what the law plainly allows him to do is a due process violation of the most basic sort”).
       To demonstrate prosecutorial vindictiveness, a defendant must show either: (1) actual
vindictiveness through objective evidence that a prosecutor acted in order to punish the
defendant for exercising a legal right; or (2) a realistic likelihood of vindictiveness, which then
raises a presumption of vindictiveness. United States v. Goodwin, 457 U.S. 368, 372-73 (1982)
(reasoning that because motives are often “complex and difficult to prove,” in cases where
“action detrimental to the defendant has been taken after the exercise of a legal right . . . it [is]
necessary to ‘presume’ an improper vindictive motive”). The defendant’s burden of establishing
actual vindictive prosecution is heavy in light of the discretion prosecutors are given in
performing their duties. United States v. Armstrong, 517 U.S. 456, 464 (1996).
       Ostler does not allege a claim of actual vindictiveness through objective evidence.
Instead, Ostler argues that the United States Supreme Court’s decision in Blackledge requires
this Court to find a presumption of vindictiveness. In Blackledge, the Supreme Court explained
that the prosecutor’s conduct of increasing a defendant’s charge from a misdemeanor to a felony
after the defendant secured a new trial on appeal gave rise to a realistic likelihood of
vindictiveness:
               A prosecutor clearly has a considerable stake in discouraging convicted
       misdemeanants from appealing and thus obtaining a trial de novo in the Superior
       Court, since such an appeal will clearly require increased expenditures of
       prosecutorial resources before the defendant’s conviction becomes final, and may
       even result in a formerly convicted defendant’s going free. And, if the prosecutor
       has the means readily at hand to discourage such appeals--by “upping the ante”
       through a felony indictment whenever a convicted misdemeanant pursues his
       statutory appellant remedy--the State can insure that only the most hardy
       defendants will brave the hazards of a de novo trial.
Blackledge, 417 U.S. at 27-28. Because the increased charges were based upon the same facts
underlying the initial conviction and occurred only after the defendant invoked his statutory right
to a new trial on appeal, the Court held that the prosecutor’s conduct gave rise to a per se
presumption of vindictiveness. Id. The Court based this presumption upon the constitutional

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requirement that defendants be able to invoke their right to challenge their conviction without
apprehension of retaliation. Id.
        Later, in Goodwin, the Supreme Court distinguished between pretrial and post-conviction
increases in punishment by prosecutors, acknowledging the deep-seated bias within the judicial
system against the retrial of decided issues. Goodwin, 457 U.S. at 376-77. In dicta, the Court
specifically noted the judicial doctrines of stare decisis, res judicata, the law of the case, and
double jeopardy; the Court opined that “the same institutional pressure that supports [those
doctrines] might also subconsciously motivate a vindictive prosecutorial . . . response to a
defendant’s exercise of his right to obtain a retrial of a decided question.” Id. at 377. The Court
recognized that “a change in the charging decision made after an initial trial is completed is
much more likely to be improperly motivated than is a pretrial decision” based upon the
prosecutor’s strong interest in avoiding having to retry an entire case.” Id. at 381-84.
        A prosecutor’s attempt to retry a defendant after a mistrial, seeking a heavier penalty for
the same acts as originally charged, appears inherently suspect. See United States v. Robison,
644 F.2d 1270, 1273 (9th Cir. 1981). Even the appearance of retaliatory conduct by prosecutors
in response to a defendant’s exercise of a protected right can have subsequent chilling effects on
other defendants faced with similar circumstances. United States v. Motley, 655 F.2d 186, 188
(9th Cir. 1981). This deterrent effect is precisely what the Supreme Court sought to avoid with
the vindictive prosecution presumption. Blackledge, 417 U.S. at 28 (“A person convicted of an
offense is entitled to pursue his statutory right . . . without apprehension that the State will
retaliate.”).
        Ostler’s case differs from Blackledge in that Ostler was not appealing his conviction.
However, Ostler was nonetheless exercising a statutorily protected right by filing a motion for a
judgment of acquittal in response to the court’s concern that it did not have subject-matter
jurisdiction over the charges. As an issue of first impression for this Court, we hold that the
Blackledge presumption of vindictiveness arises where a defendant, after being convicted,
exercises a statutory right to obtain a retrial and is subsequently charged with additional or more
severe charges. See Goodwin, 457 U.S. at 372 (“[A]n individual . . . may not be punished for
exercising a protected statutory or constitutional right.”). The prosecutor’s conduct of bringing
an additional charge against Ostler after he exercised his post-conviction statutory right to a new
trial thus created a presumption of vindictiveness.

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       Once a defendant has established a presumption of prosecutorial vindictiveness, the
prosecution can rebut the presumption by showing objective reasons justifying the additional
charges. Thigpen v. Roberts, 468 U.S. 27, 32 n.6 (1984) (“[T]he Blackledge presumption is
rebuttable.”). See also Goodwin, 457 U.S. at 376 n.8; Blackledge, 417 U.S. at 29 n.7. A
successful rebuttal to a presumption of vindictiveness would thus render the first prong of the
Perry analysis unsatisfied.
       Ostler suggests that here, because the State “provided no reason in the district court for
adding a fourth charge,” the State is now precluded from justifying its charging decision for the
first time on appeal. Ostler cites to Pearce and Blackledge to support the proposition that the
State must have affirmatively established a nonvindictive justification at the trial court level. In
Pearce, the Supreme Court held that “whenever a judge imposes a more severe sentence upon a
defendant after a new trial, the reasons for his doing so must affirmatively appear . . . [a]nd the
factual data upon which the increased sentence is based must be made part of the record.”
Pearce, 395 U.S. at 726 (emphasis added). Then, in Blackledge, the Court extended Pearce to
prosecutors, holding that situations posing a realistic likelihood of vindictiveness by a prosecutor
require a rule analogous to that of the Pearce case. Blackledge, 417 U.S. at 27. There, the Court
contemplated that Blackledge “would clearly be a different case if the State had shown that it
was impossible to proceed on the more serious charge from the outset.” Id. at 29 n.7.
       After Blackledge, the Supreme Court applied the prosecutorial vindictiveness
presumption to a case where a prosecutor imposed more serious charges on a defendant after a
successful appeal.    Thigpen, 468 U.S. at 27.       Although it found the prosecutor’s conduct
presumptively vindictive under Blackledge, the Court acknowledged that the presumption was
nonetheless rebuttable. Id. at 32 n.6. However, because “the State had ample opportunity below
to attempt to rebut [the presumption] but did not do so,” the State’s conduct was deemed
unconstitutionally vindictive. Id.
       Consequently, a prosecutor seeking to impose additional or more severe charges after a
defendant secures a new trial must affirmatively give sufficient reasons for the increase on the
record. See State v. Edwardsen, 430 N.W.2d 604, 607 (Wis. Ct. App. 1988). Here, because the
State did not provide any justification for the additional charge at the trial court level, the State
did not rebut the presumption of vindictiveness. See State v. Grist, 152 Idaho 786, 794, 275 P.3d
12, 20 (Ct. App. 2012) (holding that a sentencing judge is required to affirmatively make the

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reasons for an increased sentence after remand part of the record, regardless of whether the
defendant objected). Therefore, Ostler’s claim satisfies the first prong of Perry because the
prosecutor’s conduct was presumptively vindictive in violation of Ostler’s unwaived right to due
process.
       We next consider the second prong of the Perry analysis--whether the prosecutorial
vindictiveness alleged by Ostler is clear or obvious without the need for reference to additional
information not contained in the appellate record, including information as to whether the failure
to object was a tactical decision. Here, the error plainly exists based upon a review of the record.
Prosecutors initially charged Ostler with three felonies. After Ostler was convicted on all three
counts, the court set aside those convictions and ordered a new trial. Prosecutors then brought an
additional felony charge against Ostler based upon the same evidence supporting the original
convictions. The State offered no justification at the trial court level to explain the additional
charge. This error plainly exists on the face of the record. Therefore, Ostler’s claim also
satisfies the second prong of Perry.
       Having concluded that Ostler has met all three prongs of the Perry analysis, we hold that
Ostler has established fundamental error. The appropriate remedy is for this Court to vacate the
conviction arising from the improper charge and remand. Perry, 150 Idaho at 228, 245 P.3d at
979.
                                                III.
                                         CONCLUSION
       The prosecutor’s conduct of adding an additional felony charge after Ostler secured a
new trial violated Ostler’s right to due process. Accordingly, we affirm Ostler’s judgment of
conviction on Counts I, II, and IV, and we vacate Ostler’s judgment of conviction on Count III.
We direct the district court to enter an amended judgment of conviction consistent with this
opinion.
       Chief Judge MELANSON and Judge HUSKEY CONCUR.




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