State v. Scott Lewis Ostler, 386 P.3d 491

Scott Ostler was tried for molesting two younger half-sisters; initial jury convicted him of two counts of lewd conduct and one count of sexual abuse in December 2013.
The charged lewd conduct allegations spanned 2000–2008; Ostler was as young as 11 during that period.
The district court sua sponte questioned jurisdiction over conduct before Ostler turned 14, set aside the verdict, ordered the State to amend its information to exclude pre-14 conduct, and ordered a new trial.
The State filed an amended information adding a third lewd-conduct count (excluding conduct before Ostler was 14); Ostler did not object at trial to the amendment or retrial.
After a second trial, Ostler was again convicted on all counts and appealed; the Court of Appeals vacated the additional lewd-conduct conviction as a due-process vindictive-prosecution violation; the Idaho Supreme Court granted review.
The Idaho Supreme Court affirmed, holding Ostler failed to preserve a claim of prosecutorial vindictiveness and that the claim requires factual development more appropriate to post-conviction proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether adding an extra felony lewd-conduct charge after a mistrial violated defendant's due-process rights as vindictive prosecution	State: charging change was permissible and not presumptively vindictive	Ostler: addition of the new count after remand created a realistic likelihood of prosecutorial vindictiveness and violated due process	Court: Claim not preserved for appeal; defendant failed to object below so the presumption could not be rebutted; issue requires post-conviction fact development and may involve ineffective-assistance inquiry

Blackledge v. Perry, 417 U.S. 21 (1974) (prosecutor may not vindictively increase charges after a defendant exercises a legal right; presumption of vindictiveness in some circumstances)
United States v. Goodwin, 457 U.S. 368 (1982) (distinguishes actual vindictiveness from a presumption; presumption applies only where realistic likelihood of vindictiveness exists)
North Carolina v. Pearce, 395 U.S. 711 (1969) (presumption of vindictiveness in resentencing and requirement that reasons for a harsher sentence appear in the record)
Bordenkircher v. Hayes, 434 U.S. 357 (1978) (due process violated when prosecutor punishes defendant for exercising legal rights)
Wasman v. United States, 468 U.S. 559 (1984) (burden on defendant to prove actual vindictiveness where presumption does not apply)
Smith v. Massachusetts, 490 U.S. 794 (1989) (limits Pearce presumption; presumption not automatic for every post-trial increase)
State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010) (Idaho fundamental-error standard and concern about sandbagging—failure to object may preclude appellate review)
State v. Robbins, 123 Idaho 527, 850 P.2d 176 (1993) (applies Pearce/Goodwin reasoning in Idaho context for vindictiveness issues)
State v. Bishop, 146 Idaho 804, 203 P.3d 1203 (2009) (standard of review for Court of Appeals decisions)
State v. Vetsch, 101 Idaho 595, 618 P.2d 773 (1980) (prosecutorial charging discretion)