State v. Kevin Louis Ormesher
296 P.3d 427
Idaho Ct. App.2012Background
- Ormesher was convicted by jury of sexual abuse of a child under sixteen.
- Charging information alleged touching the victim’s breast with intent to gratify defendant’s sexual desire.
- Facts showed a 15-year-old victim A.R. left her home to meet Ormesher, became intoxicated, and was touched in a vehicle.
- A police officer observed that A.R. was intoxicated and her shirt/bra were off during the incident.
- The jury instruction on Sexual Abuse of a Child Under Sixteen did not reference breast touching, creating a variance with the information.
- Ormesher challenged the variance and the use of prior convictions to impeach a character witness; the district court allowed the cross-examination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a fatal variance between information and jury instruction? | Ormesher argues the instruction allowed conviction for acts not in the charging document. | Ormesher contends the variance violated fair notice and could permit a different crime. | Not fatal; variance did not deprive fair notice or create double jeopardy risk. |
| Did the variance invade double jeopardy or deny fair notice? | State asserts no practical risk given single course of conduct. | Ormesher argues variance creates risk of reprosecution for different acts. | Variance not fatal; double jeopardy risk not shown. |
| Was it error to allow cross-examination about prior convictions to impeach credibility? | Prior stalking and no-contact convictions probative of honesty/trustworthiness. | Convictions are irrelevant to credibility/trustworthiness in this context. | Admissible; convictions were relevant to witness’s opinion of defendant’s morality and trustworthiness. |
Key Cases Cited
- State v. Montoya, 140 Idaho 160 (Ct. App. 2004) (variance analysis between charging instrument and proof)
- Brazil v. State, 136 Idaho 327 (Ct. App. 2001) (variance between information and proof; not fatal without due notice risk)
- State v. Windsor, 110 Idaho 410 (1985) (double jeopardy concerns and appellate review of variance)
- State v. Sherrod, 131 Idaho 56 (Ct. App. 1998) (variance analysis standard; fair notice)
- State v. Alvarez, 138 Idaho 747 (Ct. App. 2003) (standard for prejudicial vs. non-prejudicial variance)