State v. Flegel, 261 P.3d 519

Background

Flegel was indicted for Lewd Conduct with a child under sixteen (I.C. § 18-1508).
The district court instructed on Lewd Conduct and as an included offense, Sexual Abuse (I.C. § 18-1506).
Evidence showed conduct touching the child’s buttocks and genitals; Lewd Conduct instruction related to genital-contact acts; Sexual Abuse related to broader acts.
The State amended the indictment without resubmitting to a grand jury, charging Sexual Abuse only.
Flegel was tried on the amended charge, found guilty, and appealed on jurisdictional and instructional grounds.
This Court reviews de novo the lower court’s subject matter jurisdiction and the validity of the amended indictment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Sexual Abuse is a lesser included offense of Lewd Conduct under statutory theory.	State contends Sexual Abuse is not a lesser included offense under statutory theory.	Flegel argues Sexual Abuse is a lesser included offense under statutory theory.	Not a lesser included offense under statutory theory.
Whether Sexual Abuse could be charged by amendment without a new grand jury presentment.	State argues amendment is permissible when evidence supports a lesser offense.	Flegel contends amendment charging a different crime requires grand jury action.	Amended indictment charging a different offense is a nullity absent grand jury approval.
Whether the amended indictment was valid under the pleading theory.	State maintains amendment adds alternative means/charges consistent with pleading theory.	Flegel asserts amendment altered the offense charged in a way not permitted by pleading theory.	Under pleading theory, the amendment was improper because it charged a different offense.
Whether the district court lacked subject matter jurisdiction over the Sexual Abuse charge.	State asserts jurisdiction existed via amendment.	Flegel asserts no grand jury concurrence to amend; jurisdiction lacking.	District court lacked jurisdiction; case must be dismissed.
Whether the State could have charged both Lewd Conduct and Sexual Abuse without prejudice to retry.	State could have sought indictment for both crimes.	No retrial allowed on amended charge; need proper indictment.	If amended indictment is void, retrial on Sexual Abuse cannot proceed.

Key Cases Cited

State v. Padilla, 101 Idaho 713 (1980) (indictment as notice and inclusion of lesser offenses)
State v. Rosencrantz, 130 Idaho 666 (1997) (free review on whether offense is a lesser included offense)
State v. Curtis, 130 Idaho 522 (1997) (two theories of lesser included offenses; pleading and statutory)
Sivak v. State, 112 Idaho 197 (1986) (pleading theory definition of lesser included offense)
State v. O'Neill, 118 Idaho 244 (1990) (sexual abuse can be a lesser included offense of lewd conduct under pleading theory)
State v. Fodge, 121 Idaho 192 (1992) (instructing on lesser included offense depends on evidence under §19-2132)
State v. Lute, 150 Idaho 837 (2011) (valid indictment and jurisdiction when grand jury term expired)