State v. Aman Gas, 161 Idaho 588

Victim (R.G.) fell asleep on a couch after drinking; later woke to digital and penile sexual contact by Aman Gas; medical exam showed three anal tears.
Gas claimed an alibi: he was at a bar during the relevant time and denied contact. DNA tied R.G. to material under Gas’s fingernails and potentially to a penile swab.
Gas was charged with rape under Idaho Code § 18-6101(6) (victim unconscious of the nature of the act).
The district court instructed the jury on the lesser included offense of battery with intent to commit rape; jury acquitted on rape but convicted on the lesser offense.
Gas appealed, arguing the instruction was erroneous because (1) battery with intent to commit rape is not a lesser included offense of rape when the victim is unconscious, and (2) the instruction created a prejudicial variance from the charging document.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether battery with intent to commit rape is a lesser included offense of rape charged under I.C. § 18-6101(6)	Battery with intent to commit rape is included because rape necessarily involves a battery (penetration entails unlawful touching), so all elements of the lesser are within the greater except penetration	Battery with intent to commit rape is not a lesser included where the victim is unconscious; defendant argued battery must be a separate act from penetration and the crimes are not statutorily nested	Court held it is a lesser included offense under the statutory and pleading theories: penetration requires a battery, so battery with intent to commit rape is included (following Bolton and related Idaho precedent)
Whether the jury instruction created a variance from the charging document (depriving notice or risking double jeopardy)	State: no variance; even if a variance existed, defendant’s alibi defense meant he was not prejudiced or deprived of notice	Gas: instruction allowed conviction for a non-penetrative battery and for lack of consent (rather than unconsciousness), which differed from the information alleging penetration of an unconscious victim	Court held there was no impermissible variance; alternatively, any variance did not prejudice Gas because his alibi defense addressed the factual scope of the instruction

State v. Bolton, 119 Idaho 846 (Ct. App.) (battery/assault with intent to commit rape is included by proof of all elements of rape except penetration)
State v. Jones, 154 Idaho 412 (Idaho Supreme Court) (forcible rape requires force beyond penetration; distinguishable where forcible-rape subsection applies)
Blockburger v. United States, 284 U.S. 299 (framework for statutory lesser-included offense analysis)
State v. McCormick, 100 Idaho 111 (statutory test: lesser must have all elements included within greater)
State v. Flegel, 151 Idaho 525 (pleading-theory: lesser included when alleged as means or element of greater offense)