State v. Seward, 51377

Cody John Seward was convicted of one count of lewd conduct with a child under the age of sixteen, specifically for alleged genital-oral contact with a five-year-old victim.
The charging document (information) specified genital-oral contact as the basis for the charge.
At trial, the jury instruction allowed conviction if the jury found genital-oral contact "and/or any other lewd or lascivious act," expanding the potential basis for guilt.
Seward did not object to the jury instructions at trial but challenged them on appeal, arguing a fatal variance between the charging document and instructions.
Seward also challenged the length and basis for his forty-year sentence, asserting that it was excessive and improperly focused on his cognitive capacity.
The Idaho Court of Appeals reviewed the issues for fundamental error and abuse of discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Fatal Variance between Charging Doc & Jury Instruction	Variance existed and allowed conviction on uncharged acts, violating due process	Any variance not fatal; defendant not misled or prejudiced	Variance not fatal; no due process violation
Whether Seward had Notice or was Misled	Not on notice of other acts; surprised in preparing defense	Only evidence was for the charged conduct; no surprise	Seward had notice; not misled or surprised
Sufficiency of Evidence for Conviction	Jury could have convicted on uncharged acts due to instruction	Only evidence supported charged conduct	Only charged conduct supported; no risk of conviction for other acts
Excessive Sentence	Sentence too long; based on cognitive limitations	Sentence appropriate; all evidence considered	Sentence affirmed; no abuse of discretion

State v. Sherrod, 951 P.2d 1283 (Idaho Ct. App. 1998) (review standard for variance between charging instrument and jury instructions)
State v. Folk, 256 P.3d 735 (Idaho 2011) (fatal variance when jury instructions allow conviction on uncharged acts)
State v. Miller, 443 P.3d 129 (Idaho 2019) (variance not fatal if defendant had notice or was not misled)
State v. Bernal, 427 P.3d 1 (Idaho 2018) (variance not fatal if defendant on notice of variant theory)
State v. Toohill, 650 P.2d 707 (Idaho Ct. App. 1982) (factors for reviewing sentence reasonableness)