State v. Flegel
| Decision Date | 06 September 2011 |
| Docket Number | No. 35117.,35117. |
| Parties | STATE of Idaho, Plaintiff–Respondent,v.Christopher David FLEGEL, Defendant–Appellant. |
| Court | Idaho Supreme Court |
STATE of Idaho, Plaintiff–Respondent,
v.
Christopher David FLEGEL, Defendant–Appellant.
No. 35117.
Supreme Court of Idaho,Boise, May 2011 Term.
Sept. 6, 2011.
Sara Thomas, Deputy State Appellate Public Defender, Boise, argued for appellant.
[261 P.3d 520]
Jessica Lorello, Deputy Attorney General, Boise, argued for respondent.EISMANN, Justice.This is an appeal from a conviction for the crime of sexual abuse of a child under sixteen years of age charged in an amended indictment. Because that crime had not been submitted to the grand jury and was not an included offense of the crime of lewd conduct charged in the original indictment, the district court did not have subject matter jurisdiction. We therefore vacate the judgment and remand this case with instructions to dismiss the case without prejudice.
Flegel was indicted by a grand jury for the crime of lewd conduct with a child under sixteen years of age (Lewd Conduct) in violation of Idaho Code section 18–1508. Flegel pled not guilty and was tried by a jury. The district court instructed the jury regarding the crime of Lewd Conduct and, as an included offense, the crime of sexual abuse of a child under sixteen years of age (Sexual Abuse). The Lewd Conduct charge was based upon the allegation that Flegel touched the child's vagina, and the Sexual Abuse charge was based upon evidence that he also touched her buttocks. The jury found Flegel not guilty of Lewd Conduct, but could not reach a verdict on the Sexual Abuse charge.
Without resubmitting the matter to a grand jury, the State filed an amended indictment charging Flegel with the crime of Sexual Abuse. Flegel was tried by a jury on that charge and found guilty. He then appealed.
The appeal was initially heard by the Idaho Court of Appeals. It held that the indictment was properly amended because evidence admitted during Flegel's first trial supported the included offense of Sexual Abuse; that the district court did not err in admitting a recorded interview of Flegel during which a detective stated that he found the complaining witness credible; and that the district court erred in failing to tailor the jury instruction on Sexual Abuse to eliminate the risk that the jury in the second trial would find Flegel guilty of conduct for which he was acquitted in the first trial. Because it concluded that such error was not harmless, the Court of Appeals vacated the judgment and remanded the case for a new trial.
The State filed a petition for review, which we granted. In cases that come before this Court on a petition for review of a Court of Appeals opinion, we hear the appeal de novo, directly reviewing the decision of the lower court. Head v. State, 137 Idaho 1, 2, 43 P.3d 760, 761 (2002).
Because Sexual Abuse is not a lesser included offense of Lewd Conduct, Flegel could only be validly charged by indictment with that crime if the matter was resubmitted to a grand jury and it returned the amended indictment. The prosecuting attorney had no authority to issue an amended indictment for a crime that was not charged in the original indictment and that was not an included offense of that crime. Therefore, Flegel's conviction is void, the judgment must be vacated, and this case must be dismissed.
Article I, section 8, of the Idaho Constitution provides, “No person shall be held to answer for any felony ... unless on presentment or indictment of a grand jury or on information of the public prosecutor, after a commitment by a magistrate....” Because a felony can only be prosecuted by an indictment found by a grand jury or by an information based upon the commitment of a magistrate (following a preliminary hearing or its waiver), Idaho Code section 19–1420 provides, “An information or indictment cannot be amended so as to charge an offense other than that for which the defendant has been held to answer.” To allow a prosecutor to amend an indictment to charge an offense other than that for which the defendant was
[261 P.3d 521]
held to answer would permit the prosecutor to, in essence, become the grand jury.The State can amend an indictment to allege a lesser offense that is included in the offense charged. “The indictment is, for legal purposes, sufficient notice to the defendant that he may be called to defend the lesser included charge.” State v. Padilla, 101 Idaho 713, 717, 620 P.2d 286, 290 (1980) (quoting Walker v. United States, 418 F.2d 1116, 1119 (D.C.Cir.1969)). “The determination of whether a particular crime is an included offense of the crime charged involves a question of law over which this Court exercises free review.” State v. Rosencrantz, 130 Idaho 666, 668, 946 P.2d 628, 630 (1997).
“There are two theories under which a particular offense may be determined to be a lesser included offense of a charged offense.” State v. Curtis, 130 Idaho 522, 524, 944 P.2d 119, 121 (1997). One theory is referred to as the “statutory theory.” Id. “Under this theory, one offense is not considered a lesser included of another unless it is necessarily so under the statutory definition of the crime.” State v. Thompson, 101 Idaho 430, 433, 614 P.2d 970, 973 (1980). We apply the Blockburger test, which originated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether an offense is a lesser included offense under the statutory theory. Sivak v. State, 112 Idaho 197, 211 n. 8, 731 P.2d 192, 206 n. 8 (1986). “An offense will be deemed to be a lesser included offense of another, greater offense, if all the elements required to sustain a conviction of the lesser included offense are included within the elements needed to sustain a conviction of the greater offense.” State v. McCormick, 100 Idaho 111, 114, 594 P.2d 149, 152 (1979). Sexual abuse of a child under sixteen is not a lesser included offense of Lewd Conduct under the statutory theory.
Before examining the statutes defining the two crimes, it would be helpful to review their history. On July 20, 1983, federal district judge Ray McNichols issued his opinion in Schwartzmiller v. Gardner, 567 F.Supp. 1371 (1983), in which he held unconstitutionally vague the wording of Idaho Code § 18–6607, the former lewd conduct statute. He stated:
The statute's downfall is its absolute failure to list any of the acts which will subject one to its punishment. Rather, it vaguely hints of sexual overtones and the terms “lewd” and “lascivious” simply lack such well accepted, commonly understood definitions to give “sufficient warning that men may conduct themselves so as to avoid that which is forbidden”. Rose v. Locke, 423 U.S. 48, 50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975). Neither is this a case where the offending language is rendered more explicit because it is combined with some other more precisely defined word. The Court thus concludes that the plain language of § 18–6607 is insufficiently definite to inform persons of ordinary intelligence what is outlawed and to provide law officers, judges, and juries legally fixed standards to guide enforcement.
Because on its face § 18–6607 cannot pass constitutional muster, the court turns to any limiting construction given the statute by the Idaho Supreme Court. ....
567 F.Supp. at 1376 (emphasis added).
The court suggested that the Idaho legislature amend the lewd conduct statute to identify the specific conduct intended to be prohibited. The court wrote as follows:
As a footnote, the Court adds that many “forward-looking jurisdictions have expressly rejected the antiquated notion that the penal code should not clearly define such acts.” Balthazar v. Supreme Court [ Superior Court], 573 F.2d 698, 701 (1st Cir.1978). The phrase “such acts” obviously refers to the specific conduct the legislature seeks to prohibit. In the future, convictions under § 18–6607 can be constitutionally obtained only against defendants who engage in conduct to which the Idaho Supreme Court has already applied the statute, or which the same Court has specifically said is lewd and lascivious. Because that is the limit of its present scope, the Idaho Legislature may decide to rewrite § 18–6607 so that it complies with constitutional minimums of due process; if so the Court refers that body to 18 U.S.C. § 2253 (1978) as a guide:
[261 P.3d 522]
(2) “sexually explicit conduct” actual or simulated—
(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(B) bestiality;
(C) masturbation;
(D) sado-masochistic abuse (for the purpose of sexual stimulation); or
(E) lewd exhibition of the genitals or pubic area of any person;
Congress passed that statute and accompanying definitions to enable the District of Columbia to curb sexual exploitation of children. The language used could not irritate the moral sensibilities of anyone and it complies with all notions of due process by providing fair notice and sufficient legal guidelines for law enforcement. But that is a determination the legislature must make.
567 F.Supp. at 1379 (emphasis added).
The Idaho legislature apparently took Judge McNichols's suggestion, and in 1984 it amended both Idaho Code § 18–1506, the sexual abuse statute, and former Idaho Code § 18–6607. The amendment to section 18–1506 was as follows:
18–1506. SEXUAL ABUSE OF A CHILD UNDER THE AGE OF SIXTEEN YEARS. (1) Any person eighteen (18) years of age or older who shall solicit a minor child under the age of sixteen (16) years to participate in a sexual act, or who shall cause or have sexual contact with such a child, not amounting to lewd conduct as defined by section 18–6607
....
Ch. 63, § 1, 1984 Idaho Sess. Laws 112, 112.
The legislature also...
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