Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF IDAHO Docket No. 51932 STATE OF IDAHO, ) ) Filed: November 5, 2026 Plaintiff-Respondent, ) ) Melanie Gagnepain, Clerk v. ) ) THIS IS AN UNPUBLISHED BRANDON RAY JIM, ) OPINION AND SHALL NOT ) BE CITED AS AUTHORITY Defendant-Appellant. ) ) Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Rick Carnaroli, District Judge. Judgment of conviction for sexual battery (committed by lewd or lascivious acts) of a minor child sixteen or seventeen years of age, affirmed. Erik R. Lehtinen, State Appellate Public Defender; Elizabeth A. Allred, Deputy Appellate Public Defender, Boise, for appellant. Hon. Raúl R. Labrador, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. ________________________________________________ TRIBE, Chief Judge Brandon Ray Jim appeals from his judgment of conviction for sexual battery (committed by lewd or lascivious acts) of a minor child sixteen or seventeen years of age. For the reasons set forth below, we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND The State charged Jim with sexual battery of a minor child by lewd or lascivious contact, a persistent violator enhancement, and a mandatory-minimum enhancement. During trial, the district court held a jury instruction conference, at which the State argued for the inclusion of additional language of “or any other lewd or lascivious act” to the district court’s proposed jury instruction (jury instruction 15) regarding sexual battery of a child. Jim objected to the State’s requested additional language, arguing the district court’s proposed instruction was the “accurate 1 recitation of what was described at trial” and that the “[victim] didn’t describe any other lewd or lascivious acts.” Jim also argued the State charged the sexual battery under Idaho Code § 18-1508A(1)(a) and that “the language that [the State is] asking to be added is essentially a catchall, which would then be under [I.C. §] 18-1508A(1)(c).” The district court overruled Jim’s objection. The jury found Jim guilty of sexual battery (committed by lewd or lascivious acts) of a minor child sixteen or seventeen years of age (I.C. § 18-1508A(1)(a)). The district court acquitted Jim of the enhancements pursuant to separate Idaho Criminal Rule 29 motions. Jim appeals. II. STANDARD OF REVIEW Whether the jury has been properly instructed is a question of law over which we exercise free review. State v. Severson, 147 Idaho 694, 710, 215 P.3d 414, 430 (2009). Whether there is an impermissible variance between a charging instrument and the jury instructions is also a question of law over which we exercise free review. State v. Sherrod, 131 Idaho 56, 57, 951 P.2d 1283, 1284 (Ct. App. 1998). III. ANALYSIS Jim first argues the district court’s inclusion of the language “or any other lewd or lascivious act” in the jury instructions was error, contending that the language caused a fatal variance between the information and the jury instruction. Jim further argues that, if this Court concludes he failed to preserve his variance argument for appeal, the fundamental error doctrine applies. Jim also argues that the district court failed to properly instruct the jury, resulting in fundamental error. In response, the State argues that Jim’s variance argument is not preserved for appeal. The State also argues that Jim has failed to show the jury instructions were erroneous or that a fatal variance existed. We conclude that Jim preserved his argument that jury instruction 15 created an impermissible variance. However, we also conclude that, although the instruction created a variance, the variance was not fatal. A. Issue Preservation Jim argues the variance issue is preserved for appeal because he objected to the jury instruction when the additional language “or any other lewd or lascivious act” was proposed. In response, the State argues Jim’s variance issue is not preserved for appeal because an objection on 2 one basis does not preserve a separate and different basis for claiming error. Because the district court overruled Jim’s objection, he argues the adverse ruling is sufficient to preserve this issue, and that, although his argument may have evolved on appeal, it is the same substantive issue and is properly preserved. Jim acknowledges that he did not expressly argue in the district court that the challenged instruction created an impermissible variance. Jim contends the substance of his objection adequately preserved the issue because the district court understood and rejected his challenge to the additional language. A party preserves an issue for appeal by properly presenting the issue with argument and authority to the trial court below and noticing it for hearing or a party preserves an issue for appeal if the trial court issues an adverse ruling. State v. Vivian, 171 Idaho 79, 83, 518 P.3d 378, 382 (2022). Both are not required. Id. The Idaho Supreme Court recently explained that the preservation doctrine is flexible. Best v. State, 177 Idaho 150, 159, 586 P.3d 1153, 1162 (2026). The Court declined to impose preservation requirements for appellate review when satisfying them would be impossible or would not advance policies of encouraging trial courts to resolve claims of error, incentivizing trial court vigilance in enforcing the rules of criminal procedure and discouraging “sandbagging” by lawyers. Id. During the jury instruction conference, Jim did not originally object that jury instruction 15 created a variance or that the additional language created a situation where he lacked notice of the allegations or created surprise about what conduct he would have to defend against. Jim’s original objection--that the jury instruction was not supported by the trial evidence--did not invite the district court to decide whether the proposed instruction varied from the charge alleged in the information. However, Jim then added to his original objection, arguing that the State had “charged this specifically under [I.C. §] 18-1508A(1)(a)” and that “the language that [the State is] asking to be added is essentially a catchall, which would then be under [I.C. §] 18-1508A(1)(c).” Jim concluded that the catchall language would “incorporate a different subsection as different penalties under the code, which would impact what could happen if they found him guilty of something.” Jim did not specifically use the term “variance” in his objection. However, when a party objects without citing to a specific rule or statute, we may look to the context in which the objection arose and determine the ground for the objection if the party cited the applicable language from the rule or statute so the ground for the objection is apparent to the trial court. State 3 v. Chacon, 168 Idaho 524, 534, 484 P.3d 208, 218 (Ct. App. 2021). Jim’s additional argument that the proposed instruction involved a different code section with different penalties from that alleged in the information, i.e., a variance between the information and the proposed jury instruction, was sufficient to preserve the variance argument. Therefore, we next address whether a variance existed and, if so, whether the variance was fatal. B. Variance 1. Whether a variance existed Our first task in resolving a variance claim is to determine whether there is a variance between the information used to charge Jim with sexual battery (committed by lewd or lascivious acts) of a minor child sixteen or seventeen years of age and the elements instruction presented to the jury. See State v. Brazil, 136 Idaho 327, 329, 33 P.3d 218, 220 (Ct. App. 2001). A variance exists when the instructions to the jury do not match the allegation in the charging document as to the means by which a defendant is alleged to have committed the crime charged. State v. Folk, 151 Idaho 327, 342, 256 P.3d 735, 750 (2011). The State charged Jim with one count of sexual battery of a minor child by lewd or lascivious contact. The information alleged that, in violation of I.C. § 18-1508A(1)(a), Jim . . . did commit Sexual Battery by having Lewd and/or Lascivious contact with and/or upon the body of a minor, [the victim] a child sixteen or seventeen years of age, to-wit: seventeen (17) years old, by having manual to genital contact with [the victim] with the intent to gratify the sexual desire of [Jim] and/or said minor child, where [Jim] was over the age of eighteen (18) years, to-wit: forty-six (46) and at least five years older than [the victim]. Jim argues jury instruction 15 did not limit the jury’s consideration of the conduct described in the information. Instead, Jim contends the inclusion of the language “or any other lewd or lascivious act” permitted the jury to find him guilty based on conduct not charged in the information. Jury instruction 15 reads, in relevant part: 1. On or about March 4, 2022, 2. in the state of Idaho, 3. The defendant, Brandon Jim, committed an act of manual-genital contact, or any other lewd or lascivious act upon or with the body of [the victim], 4. [Jim] engaged in such conduct with the specific intent of arousing, appealing to, or gratifying the lust, passion, or sexual desires of [Jim], of such child, or of some other person. (Emphasis added.) 4 Jim asserts that the State’s information only charged manual-to-genital contact and, because the information did not allege any “other” equivalent lewd or lascivious conduct, jury instruction 15 permitted the jury to find him guilty of sexual battery for acts “other” than the manual-genital contact alleged, thereby causing a variance. The State responds that jury instruction 15 did not broaden the offense charged. Comparing the information with jury instruction 15, the instruction created a variance. The information alleged that Jim committed a sexual battery by manual-to-genital contact, whereas jury instruction 15 permitted the jury to find him guilty if he committed manual-to-genital contact “or any other lewd or lascivious act.” Accordingly, jury instruction 15 broadened the acts the jury could rely on to find Jim guilty beyond that alleged in the information, thereby creating a variance. The remaining question is whether that variance was fatal. 2. Whether the variance was fatal A variance between a charging instrument and a jury instruction is fatal and necessitates reversal only when it deprives the defendant of the right to fair notice or leaves him or her open to the risk of double jeopardy. State v. Windsor, 110 Idaho 410, 417-18, 716 P.2d 1182, 1189-90 (1985); Brazil, 136 Idaho at 330, 33 P.3d at 221. Put another way, 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; State v. Colwell, 124 Idaho 560, 566, 861 P.2d 1225, 1231 (Ct. App. 1993). When a constructive amendment occurs, the defendant is deprived of fair notice and is misled or embarrassed in the preparation or presentation of his or her defense. Windsor, 110 Idaho at 418, 716 P.2d at 1190. However, a variance will not be considered fatal if the trial court finds that either: (1) the defendant had notice; or (2) the defendant was not misled or surprised in the preparation of his or her defense. State v. Miller, 165 Idaho 115, 120, 443 P.3d 129, 134 (2019). Jim claims both grounds are satisfied in this case because: (1) he did not have notice that the jury could find him guilty based on conduct other than what was alleged in the information until the district court added the language “or any other lewd or lascivious act” to the jury instruction; and (2) he was, therefore, misled and surprised in preparing his defense. 5 Jim points to Folk as an example of a fatal variance in which the jury received jury instructions from the trial court providing elements for lewd conduct, which included the language “oral-genital contact, genital-genital contact, genital-anal contact, manual-genital contact, manual-anal contact, oral-anal contact, etc.,” even though Folk was only charged with oral-genital contact and evidence of other sexual contact was admitted. See Folk, 151 Idaho at 340, 256 P.3d at 748. During deliberations, the jury asked the trial court three questions. First, the jury asked whether it had to find that Folk committed an act of oral-genital contact upon the victim, asking: “Are we proving oral, genital contact, or is this an issue of any lewd and lascivious conduct?” Id. at 339, 256 P.3d at 747. Next, the jury asked if it could find Folk committed some other act of lewd and lascivious conduct, asking: “Is this a matter of [Folk] doing oral sex with [the victim] or any type of sexual advancement?” Id. The third question asked by the jury was if it could find Folk guilty of some lewd or lascivious act other than oral-genital contact and, if so, “what a [sic] definition of lewd and lascivious” was. Id. at 340, 256 P.3d at 748. The district court responded with a note, stating: “Lewd and Liscivious [sic] Conduct” is the statutory name for a category of sexual touching crimes that include oral-genital contact, genital-genital contact, genital-anal contact, manual-genital contact, manual-anal contact, oral-anal contact, etc. Here the allegation is oral-genital (mouth to penis) contact, which is, by definition, lewd and lascivious conduct. Id. The Idaho Supreme Court found that the district court erred in three ways with respect to this jury instruction. First, Folk was only charged with lewd conduct by oral-genital contact; therefore, including the language “genital-genital contact, genital-anal contact, manual-genital contact, manual-anal contact, and oral-anal contact in the jury instruction” had no relevance to his case and, although, “it may have been harmless to have done so, since there was no evidence of any such contact, jury instructions should not include irrelevant information.” Id. Second, because the jury asked if it could find Folk guilty of conduct other than oral-genital conduct, when the district court provided a definition that included alternate ways in which lewd conduct could occur, the district court “was indicating that [the jury] could find [Folk] guilty of lewd and lascivious conduct rather than oral-genital contact.” Id. The Court stated that, in Folk’s case, “a valid conviction could be based only upon a finding beyond a reasonable doubt that [he] engaged in an 6 act of oral-genital contact.” Id. Finally, the district court’s inclusion of “etc.” following the list of prohibited conduct reinforced that the jury could find Folk guilty of conduct other than oral-genital contact. Id. As a result, the Court vacated Folk’s judgment of conviction. Id. at 342, 256 P.3d at 750. We cannot reach the same conclusion here. Neither Jim nor the jury requested definitions for either the charged conduct or the scope of the conduct in the jury instructions. Thus, the district court gave no additional instruction for the jury to consider in their deliberations like it did in Folk. Additionally, there was no irrelevant information added to the language in the jury instructions, and the instructions strictly adhered to the model jury instruction. See ICJI 928. Finally, the jury instructions were within the scope of the charged statute, so no danger existed for the jury to find Jim guilty of conduct beyond that of the charged statute. This conclusion is consistent with the Idaho Supreme Court’s post-Folk opinion in State v. Miller, 165 Idaho 115, 443 P.3d 129 (2019). In Miller, the charging document alleged Miller committed injury to a child when Miller “willfully caused or permitted the child to be placed in a situation that its person or health may be endangered . . . by driving an automobile, with the child as a passenger, in an aggressive or reckless manner and while eluding law enforcement.” Miller, 165 Idaho at 121, 443 P.3d at 135. The jury instruction stated: “The Defendant wilfully [sic] caused or permitted the child to be placed in a situation that may have endangered the child’s person or health.” Id. Miller argued the charging document alleged that: Miller committed injury to a child by “driving an automobile, with a child as a passenger, in an aggressive or reckless manner while eluding law enforcement” whereas Jury Instruction No. 21 did not mention an automobile and instead stated Miller was guilty of the crime if he willfully caused the child to be “placed in a situation that may have endangered the child’s person.” Id. During closing argument, the prosecutor stated that Miller stopped in a field and let the child run out of the vehicle, knowing that there was a dangerous situation because law enforcement was there and one of the officers had drawn his service weapon. Id. Miller argued that the prosecutor’s closing statement, when combined with the jury instruction, created a new means of committing injury to a child because the jury could find him guilty of creating a situation in which the officer drew his weapon in the child’s presence. Id. According to Miller, this new means of committing injury to a child created a fatal variance. Id. The Court held that variances are not fatal when the 7 defendant is on notice of the variant theory or if the defendant is not surprised or misled in his or her defense. Id. The Court concluded Miller was on notice that the State might address the child running out of the vehicle after it stopped. Id. The Court noted that there was nothing in the charging document that indicated the State’s argument was limited to events that occurred while the vehicle was moving. Id. Instead, the Court held that the child running from the vehicle was directly related to Miller’s act that “willfully caused or permitted the child to be placed in a situation that its person or health may be endangered . . . by driving an automobile, with the child as a passenger, in an aggressive or reckless manner and while eluding law enforcement.” Id. The Court then distinguished Miller from Folk. First, the Court explained that, in Folk, the variance permitted Folk to be convicted based on acts that were not covered by the lewd conduct statute; however, in Miller, nothing was alleged that would have allowed Miller to be convicted based on acts not encompassed within the injury to a child statute. Miller, 165 Idaho at 121-22, 443 P.3d at 135-36. Second, because Miller responded to witness testimony about the child running from the vehicle, he was on notice that the child’s actions outside of the vehicle may be addressed. Id. at 122, 443 P.3d at 136. During Miller’s closing argument, he rebutted the allegation in the prosecutor’s closing statement and presented a defense regarding the allegation. Id. Ultimately, the Court held that, because the variance was not fatal, Miller could not establish that his due process rights were violated. Id. As in Miller, Jim has failed to show his due process rights were violated. The crux of Jim’s argument that the variance was fatal is based on the fact that only one type of lewd conduct was alleged in the charging document, but “the elements instructions permitted the jury to find [him] guilty of sexual battery for acts other than what was charged.” More specifically, according to Jim, the inclusion of the “any other lewd or lascivious act” language in the elements instruction allowed the jury to convict him of sexual battery based on the evidence that Jim touched the victim’s breasts. As a matter of law, breast-touching is not lewd conduct. See State v. Kavajecz, 139 Idaho 482, 486, 80 P.3d 1083, 1087 (2003) (holding that touching chest of a minor does not constitute lewd conduct because such touching is not similar to the identified types of prohibited contact set forth in I.C. § 18-1508). Nor did Jim request a jury instruction that defined lewd conduct as excluding such conduct. Instead, Jim argues for the first time on appeal that the jury’s verdict could have been based on breast-touching as a qualifying act of lewd conduct. But this 8 argument does not establish a fatal variance because it does not demonstrate that Jim was deprived of fair notice or that he was misled or embarrassed in the preparation or presentation of his defense. To the contrary, Jim was aware the breast-touching conduct could be introduced as it occurred within the same criminal episode, and the evidence was introduced without objection or rebuttal from Jim. Moreover, breast-touching falls within the scope of conduct prohibited by I.C. § 18- 1508A. See I.C. § 18-1508A(1)(c). Although Jim was charged under the subsection alleging sexual battery based on lewd conduct, I.C. § 18-1508A(1)(a), breast-touching is another means by which sexual battery may be committed under I.C. § 18-1508A(1)(c). Nothing in the record supports the conclusion that Jim was surprised or misled by the evidence of breast-touching, which also constitutes sexual battery. The record does not show that Jim was deprived of his right to fair notice or that he was “misled or embarrassed in the preparation or presentation of his defense.” See Windsor, 110 Idaho at 418, 716 P.2d at 1190. Because the inclusion of the language “or any other lewd or lascivious act” to jury instruction 15 did not affect Jim’s substantial rights, the variance was not fatal.1 IV. CONCLUSION Jim has preserved the argument that a variance existed between the information and the elements instruction. However, Jim has failed to show that the variance was fatal. Accordingly, Jim’s judgment of conviction for sexual battery (committed by lewd or lascivious acts) of a minor child sixteen or seventeen years of age is affirmed. Judge LORELLO and Judge PETTY, CONCUR. 1 Because we conclude Jim preserved his argument for appeal, we do not reach the fundamental error doctrine analysis. Further, because the variance is nonfatal, we need not reach Jim’s argument of fundamental error in the deliberative process. 9