State of Idaho v. Darren B. Hooper Appeal from conviction of lewd conduct with six year old daughter
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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 33826
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STATE OF IDAHO,
Plaintiff-Respondent,
v.
DARREN B. HOOPER,
Defendant-Appellant.
Boise, September 2007 Term
2007 Opinion No. 137
Filed: December 24, 2007
Stephen W. Kenyon, Clerk
Appeal from the District Court of the Third Judicial District of the State of
Idaho, for Payette County. Hon. Stephen W. Drescher, District Judge.
The conviction is vacated and the case is remanded for further
proceedings.
Molly J. Huskey, State Appellate Public Defender, Boise, for appellant.
Paula M. Swensen argued.
Honorable Lawrence G. Wasden, Attorney General, Boise, for respondent.
Kenneth K. Jorgensen argued.
_____________________
J. JONES, Justice
Darren B. Hooper was convicted of lewd conduct with his daughter, six-year-old
A.H. At trial, the district court deemed A.H. unavailable and admitted a videotaped
interview of the child. After Hooper’s conviction, the U.S. Supreme Court decided
Crawford v. Washington, 541 U.S. 36, 126 S. Ct. 1354 (2004), and Davis v. Washington,
547 U.S. ___, 126 S. Ct. 2266 (2006). Hooper appealed. The Court of Appeals held that
a videotaped interview of the child victim was testimonial under Crawford and Davis,
that the admission of the videotape was error, and that the error was not harmless. The
court vacated the conviction and remanded for further proceedings. This Court granted
the State’s petition for review. We hold that the videotaped statements were testimonial
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in nature, based on Crawford and Davis, and that admission of the statements was not
harmless error. We vacate the conviction and remand the case for further proceedings.
I.
On August 2, 2003, Crystal Hooper woke and learned Derek Hooper was in the
bathroom with their daughter, A.H. The door was locked. Crystal Hooper used a
screwdriver to open the bathroom door. She ordered A.H. into Crystal’s bedroom and
questioned Darren about his activities in the bathroom. Then, after speaking with A.H.,
Crystal accused Darren of sexually molesting A.H. and called the police.
When the police arrived, they questioned Darren and Crystal Hooper and
attempted to question A.H. The police did not collect evidence at this time, but Detective
Marshall and Detective Plaza arranged a forensic examination with on-call personnel at
the Sexual Trauma Abuse Response (“STAR”) Center in Ontario, Oregon.
At the STAR Center, Dr. De La Paz first talked with Crystal Hooper and then
conducted a sexual abuse examination of A.H., during which she found breaking and
swelling in the rectal area. Jeremi Helmick, a STAR Center nurse and forensic
interviewer, interviewed A.H. after Dr. De La Paz completed the medical examination.
Helmick videotaped the interview while Detective Plaza observed from another room via
a closed circuit system. At the end of the interview, Detective Plaza talked with Helmick
and Crystal Hooper. Plaza collected the videotape and two swabs taken during the
physical examination and put them into evidence storage at the Payette Police
Department. Following the examination and interview, the police returned to the Hooper
home to collect evidence, including a sheet from A.H.’s bed, underwear belonging to
A.H. and a washcloth from the bathroom.
Prior to trial, the State served notice of intent to introduce the videotaped
interview of A.H. and hearsay statements made by A.H. to the forensic examiner, based
on Idaho Rules of Evidence 803(24) and 804(5). The District Court reserved ruling on
the matter. At trial, the State called A.H. to testify. After A.H. was unable to take the
oath, the district court declared A.H. unavailable and the state sought to introduce the
videotaped interview. The defense objected based on the Defendant’s Sixth Amendment
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right to confront and cross-examine witnesses against him. 1 The court admitted the
videotape over Defendant’s objection, based on a pre-Crawford analysis, and played the
video for the jury.
The jury found Mr. Hooper guilty of lewd and lascivious conduct with a minor
child under the age of sixteen pursuant to Idaho Code § 19-1508. The District Court
sentenced Mr. Hooper to six years imprisonment, with two and one-half years fixed. Mr.
Hooper timely filed his Notice of Appeal from his Judgment of Conviction. The Court of
Appeals held that the admission of the videotaped interview violated Mr. Hooper’s right
to cross-examine his accuser as guaranteed by the Confrontation Clause:
“The
conclusion is inescapable that the nurse was acting in tandem with law enforcement
officers to gain evidence of past events potentially to be used in a later criminal
prosecution.” The court further held the error was not harmless. As a result, the court
vacated the Judgment of Conviction and remanded the case. This Court granted the
State’s Petition for Review.
II.
The question presented is whether videotaped statements made by a child during
an interview by a forensic examiner at a sexual trauma abuse response center are
testimonial when the police directed the child to the center and observed the interview
from another room. We hold that the videotaped statements were testimonial in nature,
based on Crawford and Davis, and that admission of the statements was not harmless
error. We vacate the conviction and remand the case for further proceedings.
A.
When considering a case on review from the Court of Appeals, this Court gives
serious consideration to the Court of Appeals’ decision. State v. Cope, 142 Idaho 492,
495, 129 P.3d 1241, 1244 (2006) (quoting Garza v. State, 139 Idaho 533, 535, 82 P.3d
445, 447 (2003)). This Court does not merely review the correctness of the decision. Id.
1
Defense objected based on the Supreme Court’s ruling in Ohio v. Roberts, 448 U.S. 56, 113 S. Ct. 2510
(1980). One month after Hooper’s conviction, the U.S. Supreme Court decided Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354 (2004), which significantly altered the Confrontation Clause analysis. When
the U.S. Supreme Court applies a rule of federal law to the parties before it, “that rule is the controlling
interpretation of federal law and must be given full retroactive effect in all cases still open on direct
review.” Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97, 113 S. Ct. 2510, 2517 (1993). See also
State v. Odiaga, 125 Idaho 384, 387-88, 871 P.2d 801, 804-05 (1994). Thus, we apply Crawford and Davis
here.
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Rather, the Court acts as though it is hearing the matter on direct appeal from the trial
court’s decision. Id.
When a violation of a constitutional right is asserted, the appellate court should
give deference to the trial court’s factual findings unless those findings are clearly
erroneous. Doe v. State, 133 Idaho 811, 813, 992 P.2d 1211, 1213 (Ct. App. 1999)
(citing State v. Peightal, 122 Idaho 5, 7, 830 P.2d 516, 518 (1992)). The appellate court
exercises free review over the trial court’s determination as to whether constitutional
requirements have been satisfied in light of the facts found. Id. Hooper asserted below
that admission of the videotaped interview violated his right to confront adverse
witnesses under the Sixth Amendment’s Confrontation Clause. This is a question of law
over which the Court exercises free review. See Doe, 133 Idaho at 813, 992 P.2d at 1213.
B.
This is an issue of first impression for the Idaho Supreme Court. The U.S.
Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 126 S. Ct. 1354
(2004), significantly altered the Supreme Court’s Confrontation Clause analysis.
A
subsequent case, Davis v. Washington, 547 U.S. ___, 126 S. Ct. 2266 (2006), further
clarified Crawford, but left many issues unresolved. State courts have interpreted these
cases in varying ways, and the parties in the present case similarly disagree on the proper
application of the Supreme Court precedent.
Hooper contends the videotaped statements are testimonial because the forensic
nurse examiner was acting as an agent of the police and no emergency existed at the time
the statements were taken. According to Hooper, investigative interrogations are directed
at establishing the facts of a past crime in order to identify, or provide evidence against,
the perpetrator. Since the purpose of a forensic interview is to collect information to be
used in a criminal prosecution, and there is a clear connection between the police and the
STAR Center, the interview was the functional equivalent of a police interrogation.
Thus, it is testimonial under Crawford and Davis, and inadmissible unless the witness is
unavailable and the defendant had a prior opportunity to cross-examine the witness.
The State argues the Court of Appeals erred in its application of Davis to this
case. According to the State, Davis applies only to determine whether statements to law
enforcement personnel or their agents are testimonial. Since Hooper has not shown the
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interviewer here was an agent of the police, Davis is inapplicable and the question is
whether the statement at issue is one of the three “core testimonial statements” listed in
Crawford. Pointing to the third formulation of “core testimonial statements,” the State
contends the evidence is nontestimonial because the defendant has not shown the
circumstances of the interview would have led a child of the victim’s age to reasonably
believe she was making a statement for use at a later trial. The State asserts that, at most,
Hooper is entitled to have this case remanded so that evidence of agency may be
presented to the district court.
The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with witnesses against
him.” U.S. Const. amend. VI, cited in Crawford, 541 U.S. at 42. Prior to Crawford, the
Supreme Court held that the Confrontation Clause did not bar admission of an
unavailable witness’s statement against a criminal defendant if the statement bears
“adequate indicia of reliability.” Roberts, 448 U.S. at 66. To meet that test, the declarant
must be unavailable and evidence must either fall within a “firmly rooted hearsay
exception” or “bear particularized guarantees of trustworthiness.” Id.
Crawford altered this analysis with regard to testimonial statements.
In
Crawford, the Court held that testimonial statements of witnesses absent from trial are
admissible only where declarant is unavailable and where defendant had a prior
opportunity to cross-examine the witness. 541 U.S. at 59. Although the Court declined
to spell out a comprehensive definition of “testimonial,” the Court did set forth some
guidelines. First, the Court looked to Webster’s dictionary definition of “testimony”
from 1828. Testimony is “[a] solemn declaration or affirmation made for the purpose of
establishing or proving some fact.” Crawford, 541 U.S. at 52 (quoting 1 N. Webster, An
American Dictionary of the English Language (1828)). The Court then listed three
formulations of “core” testimonial statements:
(1)
“ex parte in-court testimony or its functional equivalent—
that is, material such as affidavits, custodial examinations, prior testimony
that the defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to be used
prosecutorially;”
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(2)
“extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions, prior testimony, or
confessions;” and
(3)
“statements that were made under circumstances which
would lead an objective witness reasonably to believe that the statement
would be available for use at a later trial.”
Crawford, 541 U.S. at 51-52 (internal citations omitted). This is not an exclusive list of
“testimonial” evidence. Rather, these formulations all share a “common nucleus” and
then define the Clause’s coverage at various levels of abstraction around it. Id.
The determination of whether evidence is testimonial requires the court to
consider the purpose behind the Confrontation Clause. The Supreme Court based its
holding in Crawford on the historical underpinnings of the Confrontation Clause, and
noted that the Sixth Amendment must be interpreted with this history in mind:
First, the principal evil at which the Confrontation Clause was directed
was the civil-law mode of criminal procedure, and particularly its use of
ex parte examinations as evidence against the accused. . . . The Sixth
Amendment must be interpreted with this focus in mind.
541 U.S. at 50. For example, the Court noted that statements taken by police officers in
the course of interrogations are testimonial “under even a narrow standard” because
police interrogations bear a “striking resemblance to examinations by justices of the
peace in England.” Crawford, 541 U.S. at 52. Thus, interrogations by law enforcement
officers fall “squarely within that class” of testimonial hearsay. Id. In closing, the Court
noted that “[W]hatever else the term [testimonial] covers, it applies at a minimum to prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations. These are the modern practices with closest kinship to the abuses at
which the Confrontation Clause was directed.” Crawford, 541 U.S. at 68.
The Supreme Court applied this new Confrontation Clause doctrine in
consolidated cases Davis v. Washington and Hammon v. Indiana, 547 U.S. ____, 126 S.
Ct. 2266 (2006). In Davis, the Supreme Court began with the clarification that “[i]t is the
testimonial character of the statement that separates it from other hearsay that, while
subject to traditional limitations upon hearsay evidence, is not subject to the
Confrontation Clause.” Thus, the threshold question in a Confrontation Clause case is
whether the statement is testimonial. If the evidence is testimonial, the evidence may be
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admitted only if the witness is unavailable to testify and the defendant had a prior
opportunity to cross-examine the witness. Crawford, 541 U.S. at 59; Davis, 547 U.S. at
____, 126 S. Ct. at 2273.
In Davis, the Supreme Court held that “[s]tatements are nontestimonial when
made in the course of police interrogation under circumstances objectively indicating that
the primary purpose of interrogation is to enable police assistance to meet an ongoing
emergency. They are testimonial when the circumstances objectively indicate that there
is no such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.” Davis,
547 U.S. at ___, 126 S. Ct. at 2273-74. Thus, a statement is testimonial under Crawford
and Davis when the circumstances objectively indicate that the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later criminal
prosecution, unless made in the course of police interrogation under circumstances
objectively indicating the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. 2 547 U.S. at ___, 126 S. Ct. at 2274.
The circumstances surrounding the statements in Davis led the Court to conclude
the statements were nontestimonial. In reaching its holding, the Court articulated certain
factors that distinguished the nontestimonial statements in Davis from the testimonial
statements in Crawford. First, the witness in Davis was speaking about events as they
were actually happening, rather than describing past events. 547 U.S. at ___, 126 S. Ct.
at 2276. Second, any reasonable listener would recognize the witness in Davis was
facing an ongoing emergency. Id. Third, the nature of what was asked and answered in
2
In Davis, where the statements were made to a 911 operator during the course of a domestic disturbance,
the statements met the emergency exception and were deemed nontestimonial. See Davis, 547 U.S.___,
126 S. Ct. 2266. The Court referred to its statement in Crawford that interrogations by law enforcement
officers fall “squarely within the class” of testimonial hearsay, and noted that it had in mind interrogations
directed at establishing the facts of a past crime in order to identify the perpetrator. 547 U.S. at ___, 126 S.
Ct. at 2276. The product of such interrogation is testimonial. Id. The Court assumed for the purposes of
the decision that even if 911 operators are not themselves law enforcement officers, they may at least be
agents of law enforcement when they conduct interrogations of 911 callers and therefore the court
considered their acts to be the acts of the police for the purposes of the decision. 547 U.S. at ___, 126 S.
Ct. at 2274 n.2. Nevertheless, the statements were nontestimonial because they were not aimed at
establishing the facts of a past crime, but rather describe a situation as it happened to enable police
assistance for the victim. On the other hand, statements made to police officers who arrived on the scene
after the disturbance had terminated, where the parties were separated and questioned individually, were
deemed testimonial in Hammon because they were for the purpose of proving past events relevant to later
criminal prosecution. 547 U.S. at ___, 126 S. Ct. at 2278-80.
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Davis, viewed objectively, was such that the elicited statements were necessary to be able
to resolve the present emergency, rather than simply to learn what had happened in the
past. Id. Finally, the Court elaborated on the different levels of formality between the
two interviews. Id. Based on these factors, the Court held that the statements in Davis
were nontestimonial:
We conclude from all this that the circumstances of McCottry’s
interrogation objectively indicate its primary purpose was to enable police
assistance to meet an ongoing emergency. She simply was not acting as a
witness: she was not testifying. What she said was not a “weaker
substitute for live testimony.”
547 U.S. at ___, 126 S. Ct. at 2277. Comparing the statements made in Davis to those in
Crawford, the Court noted that, unlike the situation in Crawford, where the ex parte
actors and evidentiary products of the ex parte communications aligned perfectly with
their courtroom analogues, the statements made in Davis did not. Id. (“No ‘witness’ goes
to court to proclaim an emergency and seek help.”).
The Court considered the same factors to hold the statements made in Hammon
were testimonial. First, there was no emergency in progress. “It is entirely clear from the
circumstances that the interrogation was part of an investigation into possibly criminal
past conduct—as, indeed, the testifying officer expressly acknowledged.” 547 U.S. at
___, 126 S. Ct. at 2278. “Objectively viewed, the primary, if not indeed the sole, purpose
of the interrogation was to investigate a possible crime.” Id. In addition, the Court
pointed to the formality of the statements, and that the statements were deliberately
recounted in response to police questioning relating to how criminal conduct progressed:
“Such statements under official interrogation are an obvious substitute for live testimony,
because they do precisely what a witness does on direct examination; they are inherently
testimonial.” 547 U.S. at ___, 126 S. Ct. at 2278. The Court distinguished the statements
based on the purpose of the interview and the similarities between this interview and live
testimony.
We will employ a totality of circumstances analysis in order to determine whether
the videotaped statements here were testimonial in nature.
In this case, the police
detectives arranged an examination with forensically-trained personnel at the STAR
Center. The referral by police officers, in and of itself, is not of great significance, absent
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evidence of the purpose of the referral. Similarly, the fact that an interviewer has
forensic training does not, in and of itself, make the statements “testimonial” in nature.
The purpose of such interviews can be two-fold – medical treatment and forensic use.
Statements made to medical personnel have frequently been held to be nontestimonial
when the primary purpose was treatment, even where police officers referred the child to
the medical personnel. See, e.g., People v. Vigil, 127 P.3d 916, 923-24 (Colo. 2006)
(statements made to a physician conducting a sexual assault exam were nontestimonial
where the police officer was not involved in the medical examination and not present in
the room when the doctor performed the examination); Commonwealth v. DeOliviera,
849 N.E.2d 218, 220 (Mass. 2006) (child’s statements to an emergency room physician
were nontestimonial where police took the child to the emergency room to receive a
medical assessment because the doctor’s purpose was to determine whether the child was
injured and whether she needed medical treatment); State v. Krasky, No. A04-2011, 2007
WL 2264711, at *5 (Minn. Aug. 9, 2007) (child’s statements to nurse were
nontestimonial even though police and social services jointly referred the child to the
hospital where no law enforcement officer was present at the assessment and the primary
purpose of the interview was to assess and protect the child’s health and welfare).
A review of the factors in this case indicates that the interview was geared toward
gathering evidence, rather than providing medical treatment.
When the Officers
questioned Darren Hooper, the accused abuser, Detective Marshall informed him that the
child would be going to the STAR Center for an interview, and that “depending on the
type of information [he] get[s] back from there, gonna depend on what kind of action is
done.” The Detective also asked Hooper whether there was any information A.H. was
going to divulge to the counselors that Marshall should know “before [he] hear[s] it from
them.” See Davis, 126 S.Ct. at 2278. At the STAR Center, Detective Plaza observed the
interview via a closed circuit system.
At the beginning of the interview, Helmick showed A.H. the camera and stated
“That’s where my special camera is and that makes it so I don’t have to write everything
down we talk about, cause I forget stuff sometimes, okay? . . . and my friend John
[Detective Plaza] is watching to make sure that I remember to ask all the questions I need
to ask, okay?” Helmick commenced the interview by describing certain rules to A.H.
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with regard to telling the truth: “Make sure that what we talk about is only the truth in
here, okay?” Helmick then proceeded to ask questions regarding the event in question.
She sought details, including questions seeking to identify the perpetrator: Who is that?
What was his name? Where were you when that happened? How many times did it
happen? Toward the end of the interview, Helmick consulted with the detective. When
she returned to the room, she said “I did forget just a couple things,” and continued to ask
a few questions regarding specific details of what happened in the bathroom. At the end
of the interview the detective talked with Helmick and Crystal Hooper, then collected the
videotape and two swabs taken during the physical examination and put them into
evidence storage at the Payette Police Department. The police also returned to the
Hoopers’ home to collect additional evidence following the interview. These factors
suggest the STAR Center interviewer was working in concert with the police to establish
or prove past events relevant to a later criminal prosecution.
Based on the foregoing facts, we hold the videotaped statements were testimonial
under Crawford and Davis.
The circumstances surrounding this particular case
objectively indicate that the primary purpose of the interview was to establish or prove
past events potentially relevant to later criminal prosecution, as opposed to meeting the
child’s medical needs. Helmick did not ask any questions regarding A.H.’s medical
condition, or whether the child was injured.
Further, this interview took place after a
medical assessment and separately from the medical assessment. The police officer was
present only at the second interview, not during Dr. De La Paz’ examination. Unlike the
situation in Davis, there is no evidence the statements were made in the course of police
interrogation under circumstances objectively indicating the primary purpose of the
interrogation was to enable police assistance to meet an ongoing emergency. The parties
clearly anticipated that the videotaped statements would provide a substitute for the
child’s live testimony in court. Thus, the statements are admissible only if A.H. was
unavailable and only if the defendant had a prior opportunity to cross-examine the
witness. Since Hooper had no prior opportunity to cross-examine A.H., it was error to
admit the videotape in evidence at trial.
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C.
The State argues that even if the videotaped statements are testimonial in nature,
the admission of the statements at trial was harmless error. An error that does not affect a
defendant's substantial rights is considered harmless and does not require reversal or a
new trial. State v. Doe, 137 Idaho 519, 527, 50 P.3d 1014, 1022 (2002). Whether a
conviction for a criminal offense should stand when a state has failed to accord a
constitutionally guaranteed right is a federal question. Chapman v. State of California,
386 U.S. 18, 20-21, 87 S. Ct. 824, 826 (1967). Before a federal constitutional error can
be held harmless, the court must be able to declare a belief that it was harmless beyond a
reasonable doubt. Id. at 24. The test for harmless error is whether a reviewing court can
find beyond a reasonable doubt that the jury would have reached the same result without
the admission of the challenged evidence. Doe, 137 Idaho at 527, 50 P.3d at 1022
(quoting State v. Moore, 131 Idaho 814, 821, 965 P.2d 174, 181 (1998)).
Idaho courts applied the harmless error test to Confrontation Clause violations
prior to Crawford and Davis. See, e.g., Doe, 137 Idaho at 526-27, 50 P.3d at 1021-22;
State v. Green, 136 Idaho 553, 557, 38 P.3d 132, 136 (Ct. App. 2001) (“A Confrontation
Clause violation does not automatically require reversal; rather, the doctrine of harmless
error applies.”). In addition, courts in other states have applied the harmless error test to
Confrontation Clause violations after Crawford and Davis. See, e.g., State v. Blue, 717
N.W.2d 558, 566 (N.D. 2006); State v. Justus, 205 S.W.3d 872, 880-81, 878 (Mo. 2006).
There is no reason to assume the harmless error test would not apply post-Crawford.
Whether an error is harmless in a particular case depends upon a host of factors,
including the importance of the witness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the extent of crossexamination otherwise permitted, and, of course, the overall strength of the prosecution’s
case. Green, 136 Idaho at 558-559, 38 P.3d at 136-37 (quoting Delaware v. Van Arsdall,
457 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986)). In this case, the child’s testimony was
essential.
Although there was some corroborating evidence, much of the physical
evidence was inconclusive. We cannot find beyond a reasonable doubt that the jury
would have reached the same result had the videotape been excluded.
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III.
We vacate the conviction and remand the case for further proceedings consistent
with this opinion. This result renders a discussion of additional issues unnecessary
because Hooper’s additional issues can be corrected on remand. Specifically, in response
to Hooper’s argument that the jury instruction created a fatal variance from the
indictment, we note that the jury instruction should match the indictment on remand. See
State v. Sherrod, 131 Idaho 56, 59, 951 P.2d 1283, 1286 (Ct. App. 1998).
Chief Justice EISMANN, and Justices BURDICK, W. JONES, and Justice Pro
Tem TROUT CONCUR.
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