State v. Kim J. Day, 299 P.3d 788

Day was charged in 2011 with lewd conduct with a minor under 16 and being a persistent violator; trial followed.
The information alleged Day had manual to genital contact with the victim and/or caused the victim to have such contact.
The victim testified about a game called 'ice wars' in a hot tub, including Day touching her vagina and another instance touching her breast.
A friend testified Day touched the victim’s breast; Day denied the touching and claimed any touching would be accidental.
The jury was instructed that guilt required acts of manual-genital contact or any other lewd or lascivious act upon the victim’s body.
The court vacated Day’s judgment, determining a fatal variance between the charging document and the jury instruction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there a fatal variance between charging document and jury instructions?	Day claims variance violates due process.	Day argues the variance was not harmless and undermines notice.	Yes; a fatal variance existed leading to reversible error.

State v. Folk, 151 Idaho 327 (2011) (instructions must match charging allegations to avoid fatal variance)
State v. Jones, 140 Idaho 41 (2003) (limiting instructions are needed when other misconduct is admitted)
State v. Perry, 150 Idaho 209 (2010) (three-prong test for fundamental error on unobjected trial errors)
State v. Wolfrum, 145 Idaho 44 (2007) (variance analysis includes notice and double jeopardy concerns)
State v. Kavajecz, 139 Idaho 482 (2003) (certain acts may not constitute lewd conduct; why variance matters)
State v. Sutton, 151 Idaho 161 (2011) (record insufficient to show strategic decision where failure to object)