State v. Kavajecz

Decision Date24 November 2003
Docket NumberNo. 27520.,27520.
Citation139 Idaho 482,80 P.3d 1083
PartiesSTATE of Idaho, Plaintiff-Respondent, v. James KAVAJECZ, Defendant-Appellant.
CourtIdaho Supreme Court

Molly J. Huskey, State Appellate Public Defender, Boise, for appellant, argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Lori A. Fleming, Deputy Attorney General, argued.

TROUT, Chief Justice.

James Kavajecz appeals from the judgment of conviction and sentence entered upon the jury verdicts finding him guilty of six counts of lewd conduct with a minor child under sixteen years of age. Specifically, Kavajecz claims as error the magistrate court's failure to hold a jurisdictional waiver hearing prior to waiving jurisdiction to the district court, the jury's finding that Kavajecz committed six separate and distinct acts that satisfied the elements of lewd conduct, as well as other related issues.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1998 a minor child (the victim) reported to her mother and subsequently to authorities that from 1992 to 1995, beginning when she was seven or eight years old, she had been repeatedly molested by James Kavajecz, who was thirteen or fourteen years old when the acts occurred. The State then filed a complaint, later amended, which charged Kavajecz with six counts of lewd conduct with a minor under sixteen pursuant to Section 18-1508 of the Idaho Code. Each count of the amended complaint stated that the molestation occurred from on or about November 1993 until February 1995. Kavajecz's birth date is August 9, 1980.

Although Kavajecz was twenty years old when charged, the State filed its petition under the Juvenile Corrections Act (JCA) in the magistrate division of the district court because of Kavajecz's age at the time of the alleged criminal activity. In a pretrial conference, Kavajecz's attorney requested that the magistrate court waive jurisdiction to the district court, asserting that he wanted a jury trial for his client, something that would not be possible under the magistrate court's jurisdiction pursuant to the JCA. The State did not oppose this motion and the magistrate judge waived jurisdiction without holding a hearing or making findings of fact.

At the conclusion of the trial in district court, the jury returned a verdict of guilty on all six counts and, following a pre-sentence investigation, the trial court sentenced Kavajecz to concurrent twenty-five year terms with eight years fixed. Kavajecz now appeals.

II. THE DISTRICT COURT'S JURISDICTION OVER KAVAJECZ
A. Standard of Review

"A question of jurisdiction is fundamental; it cannot be ignored when brought to our attention and should be addressed prior to considering the merits of an appeal." H & V Engineering, Inc. v. Idaho State Bd. of Professional Engineers and Land Surveyors, 113 Idaho 646, 648, 747 P.2d 55, 57 (1987). "Even if jurisdictional questions are not raised by the parties, we are obligated to address them, when applicable, on our own initiative." Id. The question of a court's jurisdiction is a question of law over which this Court exercises free review. Downey Chiropractic Clinic v. Nampa Restaurant Corp., 127 Idaho 283, 285, 900 P.2d 191, 193 (1995).

In State v. Mowrey, 91 Idaho 693, 695, 429 P.2d 425, 427 (1967), we recognized that "[w]hen there is a defect of jurisdiction, or the complaint fails to state a cause of action, that is a defect upon the face of the record proper, of which the Supreme Court on appeal will take notice, and when such defects appear the Court will ex mero motu dismiss the action." Where it is apparent from the record that the act the defendant was criminally convicted for is not a crime according to the laws of the state, this Court has the authority to vacate the convictions sua sponte (see State v. Byington, 135 Idaho 621, 624, 21 P.3d 943, 945

(holding "the failure of an indictment to charge a crime is a fundamental defect which can be raised at any time"), State v. Wood, 125 Idaho 911, 914, 876 P.2d 1352, 1355 (1993) (holding "an issue not raised in the trial court or on appeal may be addressed when plain or fundamental error exists"), State v. Lopez, 98 Idaho 581, 585, 570 P.2d 259, 262 (1976) (finding that "the defense of failure to charge an offense may also be raised at any stage of the proceedings, whether the proceedings are before the trial court or before an appellate court, and may be raised either by the parties or the Court upon its own initiative")).

B. Kavajecz's Age

On its own initiative this Court has raised the question of whether the district court had the authority to try Kavajecz where the evidence indicates that he was apparently thirteen years old when much of the sexual contact occurred with the victim. The charges in the amended complaint state that the lewd conduct occurred from November 1993 to February 1995. Kavajecz's birth date is August 9, 1980, which means during over half of this period of time, from November 1993 until August 8, 1994, Kavajecz was thirteen years old.

Because the victim was so young at the time of the molestations she could not recall specific dates or months when the incidents took place and the prosecution had to reconstruct the timeline of sexual conduct using dates and events that adults in the victim's life remembered, such as her parents' honeymoons, other trips out of town by her parents, and other such events when the victim was left overnight at the Kavajecz home.

The prosecution established at trial that the victim began spending time at the home where Kavajecz was living (the Kavajecz home)—almost always staying overnight—soon after her mother and the defendant's uncle were married in November 1993. The victim's mother and stepfather went on two honeymoons: a short one-night trip in November 1993 and a weeklong trip to Hawaii in April of 1994. In addition, testimony indicated the victim spent a good part of her summer that year at the Kavajecz home and during unspecified periods during these fifteen months she was there sometimes as frequently as every other weekend. Having established that the victim was exposed to Kavajecz during this time period, if Kavajecz molested her during any of these times, he would have been thirteen years old when doing so.

Because the victim also couldn't recall when specific sexual contacts took place relating to each separate count against Kavajecz, the prosecution had to relate the evidence for each count alleging sexual contact using events that had taken place during individual visits, without being able to specify dates or months when those sexual contacts occurred.

C. Idaho Law

Section 18-216(1) of the Idaho Code establishes that a person may not be tried for or convicted of a criminal offense if "(a) At the time of the conduct charged to constitute the offense he was less than fourteen (14) years of age...." This section further sets forth that jurisdiction may only be waived from a juvenile court to a district court if that person is between the ages of fourteen and seventeen years old. I.C. § 18-216(1)(b). Furthermore, I.C. § 18-216(2) states: "No court shall have jurisdiction to try or convict a person of an offense if criminal proceedings against him are barred by subsection (1) of this section." Based on this statute, the district court's ability to enter convictions against Kavajecz is called into question where Kavajecz was under the age of fourteen during most of the period of alleged sexual contact. On appeal, the State has argued that jurisdiction over Kavajecz is a subject matter jurisdiction issue. The State asserts that where both the district court and the magistrate's division have subject matter jurisdiction over minors and the district court has been given original jurisdiction by the Idaho Constitution over criminal acts, the district court cannot be denied jurisdiction over Kavajecz by the legislature. While admittedly the statutes quoted above refer to the "jurisdiction" of a court over a juvenile or the waiver of that jurisdiction, there is no question that both the district court and the magistrate's division have subject matter jurisdiction over juveniles. There is simply a difference in procedures and sentencing options depending upon whether the juvenile's case is being handled under the JCA or under the adult felony statutes. The argument about jurisdiction between juvenile and adult court does not address the real issue here of whether the juvenile can even be charged or convicted of a crime.

"It is uniformly held that the power to define crime and fix punishment therefore rests with the legislature ...." Malloroy v. State, 91 Idaho 914, 915, 435 P.2d 254, 255 (1967). I.C. § 18-216 is the legislature's determination of who is capable of committing a crime. This statute provides that a minor under the age of fourteen cannot be tried for or convicted of an offense which would otherwise be a criminal act if committed by someone over the age of fourteen. The only exception to that is provided by I.C. § 20-509. There, the legislature lists nine serious crimes or categories of crimes for which a minor under the age of fourteen may be criminally tried as an adult if waived into district court pursuant to I.C. § 20-508. Lewd conduct with a minor under the age of sixteen is not an enumerated offense under I.C. § 20-509 for which Kavajecz could have been tried as an adult.

Because it was not determined at trial if the acts for which Kavajecz was convicted occurred when he was thirteen or fourteen years old, and where the evidence appears to indicate that the majority of these acts occurred when Kavajecz was thirteen, we vacate all of Kavajecz's convictions and remand his case back to the district court for a new trial, including a determination of whether Kavajecz could be convicted of any crime depending on when these acts took place.

Although this Court is vacating Kavajecz's convictions, we will address two additional...

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