State v. Halbesleben, 27182.

• Decision Date: 31 July 2003
• Docket Number: No. 27182.,27182.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. August J. HALBESLEBEN and Jeanine M. Halbesleben, Defendants-Appellants.
• Court: Idaho Court of Appeals

75 P.3d 219

139 Idaho 165

STATE of Idaho, Plaintiff-Respondent, v. August J. HALBESLEBEN and Jeanine M. Halbesleben, Defendants-Appellants.

No. 27182.

Court of Appeals of Idaho.

July 31, 2003.

Molly J. Huskey, State Appellate Public Defender; Sara B. Thomas, Chief, Appellate Unit, Boise, for appellant. Sara B. Thomas argued.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

LANSING, Chief Judge.

August and Jeanine Halbesleben were tried by jury and convicted of felony injury to a child. In this appeal, the Halbeslebens assert, among other things, that the indictment was inadequate to allege an offense and that the jury instructions did not correctly state the law. In light of the Idaho Supreme Court's recent decision in State v. Young, 138 Idaho 370, 64 P.3d 296 (2002), addressing how the jury must be instructed regarding the mental element in felony injury to child cases, we vacate the conviction and remand for a new trial.

BACKGROUND

The following facts are derived from evidence presented at trial. August and Jeanine Halbesleben married in 1996, at which time August had two sons from a previous marriage, including Tommy, the alleged victim in this case, who was born in 1990. In the summer of 1999, the Halbeslebens decided to home school Tommy after having had conflicts with his second grade teacher and school officials. At about the same time, the Halbeslebens enrolled in a parenting class that had been recommended by a school counselor. At this class, they were taught that food limitations could be used as a form of discipline.

In late 1999, Tommy began to exhibit behavior problems, including bed-wetting, violence toward younger siblings and pets, and stealing. The Halbeslebens decided to discipline Tommy by feeding him a bland diet and taking away privileges. According to the Halbeslebens, the diet was based on a food pyramid they had learned from a nutritionist, and they believed that it was nutritionally adequate. Tommy testified that on this diet he was fed oatmeal with prunes for breakfast, a bowl of plain rice, beans or noodles for lunch, and another bowl of rice, beans or noodles for dinner. The Halbeslebens testified that his meals also included peanut butter sandwiches for lunch, a vegetable for dinner, and milk with each meal. They said they did not desire to harm Tommy nor believe that his health was suffering.

In February 2000, a detective and a social worker conducting a child welfare check on Tommy declared that he was in imminent danger based upon their perception that Tommy was very small for his age and was underweight. His hands were blue, and they could see his ribs when Tommy lifted his shirt. Tommy was thereafter removed from the Halbesleben's custody. A psychiatrist who became Tommy's foster parent described him as appearing to be malnourished, with thinning hair, a distended abdomen, skin breakdown, and athlete's foot. When Tommy was taken into state custody, he ate "nonstop," gaining six pounds in the first twenty-four hours and twenty pounds within eight months.

The Halbeslebens were charged with felony injury to a child, Idaho Code § 18-1501(1). The indictment alleged that they "did under circumstances likely to produce great bodily harm or death, commit an injury upon a child under eighteen years of age, to wit: Thomas Halbesleben ... by unlawfully and willfully causing or permitting the child to be placed in a situation endangering his health or person, by failing to adequately feed him thereby causing him to only gain one-half of a pound in three and one-half years." The Halbeslebens were convicted following a jury trial. They now appeal, claiming several errors.

ANALYSIS

A. Sufficiency of the Indictment

The Halbeslebens first contend that the indictment by which they were charged did not allege all elements of the offense, and hence was jurisdictionally defective, because it did not allege that the Halbeslebens had the care or custody of Tommy. The Halbeslebens correctly point out that the portion of I.C. § 18-1501(1) under which they were prosecuted criminalizes endangerment of a child victim only if the defendant had the care or custody of the child. The statute provides as follows, with the portion under which the Halbeslebens were prosecuted italicized:

Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health is endangered, is punishable by imprisonment in the county jail not exceeding one (1) year, or in the state prison for not less than one (1) year nor more than ten (10) years.

For their argument that a jurisdictional flaw in the indictment was created by the omission of any allegation that the Halbeslebens had the care and custody of Tommy, the Halbeslebens rely upon our decision in State v. Byington, 135 Idaho 621, 622-23, 21 P.3d 943, 944-45 (Ct.App.2001). We there held that an indictment alleging the same willful endangerment offense was jurisdictionally defective because it did not include an allegation that the defendant had the care or custody of the child victim. Id. at 623-24, 21 P.3d at 945-46. Byington differs from the present case, however, in an important aspect. A motion raising the jurisdictional defect and seeking dismissal of the charge in Byington was filed before trial, at a time when the prosecutor could have yet amended the indictment to cure the defect, whereas the Halbeslebens have raised their jurisdictional challenge to the indictment for the first time on appeal.

It is well established that the level of scrutiny that an Idaho appellate court will apply in evaluating the sufficiency of a charging document varies according to the timeliness of the challenge. Byington, 135 Idaho at 624, 21 P.3d at 946; State v. Leach, 126 Idaho 977, 978-79, 895 P.2d 578, 579-80 (Ct. App.1995). If the alleged deficiency was raised by the defendant prior to trial or entry of a guilty plea, the charging document must state all facts essential to establish the charged offense. Byington, 135 Idaho at 623, 21 P.3d at 945. But if the indictment or information is not challenged until after the verdict or guilty plea, it will be liberally construed in favor of validity, and a technical deficiency that does not prejudice the defendant will not provide a basis to set the conviction aside. State v. Cahoon, 116 Idaho 399, 400, 775 P.2d 1241, 1242 (1989); State v. Chapa, 127 Idaho 786, 787-88, 906 P.2d 636, 637-38 (Ct.App.1995); State v. Robran, 119 Idaho 285, 287, 805 P.2d 491, 493 (Ct.App. 1991). When the challenge is tardy, the charging document will be upheld on appeal unless it is so defective that it does not, by any fair or reasonable construction, charge the offense for which the defendant was convicted. Byington, 135 Idaho at 624, 21 P.3d at 946; Robran, 119 Idaho at 287, 805 P.2d at 493. In Robran, for example, where the defendant did not question the sufficiency of the information charging him with rape until after his conviction, we held that the information alleging that the victim's resistance was overcome "by fear," was sufficient to allow an inference that her resistance was overcome by force, or that she was prevented from resistance by threats of bodily harm, as required by the statutory definition of the offense. Id. We concluded that the allegations also implied the element of "lack of consent." Similarly, in Chapa, where the defendant, convicted of rape, raised the issue for the first time on appeal, we held that the information's allegation that the rape "was accomplished by force and violence" sufficiently carried an implication that the victim resisted but that her resistance was overcome by force or violence, which was a necessary element of the offense. Thus, in appraising a tardily challenged information or indictment, this Court has "considerable leeway to imply the necessary allegations" from the language of the document. Robran, 119 Idaho at 287, 805 P.2d at 493.

Consequently, in examining the Halbeslebens' argument that their indictment was insufficient to allege an offense, we do not employ the more stringent standard applied in Byington; rather, we liberally interpret the allegations of the indictment to determine whether the necessary "care or custody" element can be inferred. The indictment alleged that the victim had the same last name as the defendants, was six through nine years old when the offense occurred, and had been inadequately fed by the defendants over a period of more than three years. It is a fair and reasonable inference from these allegations that August Halbesleben was the victim's father and that the defendants had the "care or custody" of the victim. The Halbeslebens do not contend that they were misled or prejudiced by the omission of a formal allegation that they had the care or custody of Tommy. Therefore, we hold that the indictment was sufficient to charge them with the crime of felony injury to a child, I.C. § 18-1501(1), and to vest the district court with jurisdiction to try the case.

B. Jury Instructions

The Halbeslebens next contend that the jury instructions were inadequate because they did not inform the jury of the State's burden to prove the requisite mental element of the offense. The question whether the jury was properly instructed is one of law over which this Court exercises free review. State v. Avila, 137 Idaho 410, 414, 49 P.3d 1260, 1264 (Ct.App.2002). The instructions must inform the jury on all matters of law necessary for the jury's information. I.C. § 19-2132(a). This requires that the instructions include every...