State v. Seward

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 51377

STATE OF IDAHO, )
) Filed: May 1, 2025
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
CODY JOHN SEWARD, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the Sixth Judicial District, State of Idaho,
Bannock County. Hon. Rick Carnaroli, District Judge.

Judgment of conviction and unified sentence of forty years with a minimum period
of confinement of twenty-five years for one count of lewd conduct with a child
under the age of sixteen, affirmed.

Attorneys of Idaho; Sarah E. Tompkins, Boise, for appellant. Sarah E. Tompkins
argued.

Hon. Raúl R. Labrador, Attorney General; Kenneth K. Jorgensen, Deputy Attorney
General, Boise, for respondent. Kenneth K. Jorgensen argued.
________________________________________________

GRATTON, Chief Judge
Cody John Seward appeals from his judgment of conviction for one count of lewd conduct
with a child under the age of sixteen. Seward argues that a fatal variance exists between the
charging document and the elements in the jury instructions on the alleged lewd conduct acts.
Seward also argues that his sentence is excessive. For the reasons set forth below, we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The State charged Seward with one count of lewd conduct with a minor under the age of
sixteen in violation of Idaho Code § 18-1508. The information listed the acts giving rise to the
charge:

1
Cody John Seward, on or about September 1, 2020 to September 30, 2021
in the County of Bannock, State of Idaho, did willfully and lewdly, commit a lewd
and lascivious act upon and/or with the body of a minor, [victim], under the age of
sixteen years, to-wit: of the age of 5 years of age years, (sic) by genital to oral
contact with the intent of arousing, and/or appealing to and/or gratifying the lust
and sexual desires of the defendant and/or victim.
Prior to trial, both parties submitted proposed jury instructions. Seward’s proposed instruction
read, in relevant part, “the Defendant, Cody J. Seward committed an act of oral-genital contact
upon or with the body of [victim].” The State’s proposed instruction read, in relevant part, “the
Defendant, CODY JOHN SEWARD, committed an act of genital-oral contact and/or any other
lewd or lascivious act upon or with the body of [victim].” The district court’s proposed
instruction 17 stated, in relevant part, that to convict, the jury had to find beyond a reasonable
doubt “the defendant, CODY JOHN SEWARD, committed an act of genital-oral contact and/or
any other lewd or lascivious act upon or with the body of [victim].” Prior to giving the final
instructions, the district court asked if either party had any objections to the court’s proposed jury
instructions. Defense counsel stated that the defense had no objections. Jury instruction 17 was
given to the jury.
At trial, the victim testified Seward would blindfold her and “brush [her] teeth” with a
“magic toothbrush” that was “squishy” and felt “[l]ike skin.” This occurred in the living room
while the victim was lying down. Her mouth felt “stretched out” when the “toothbrush” was in it.
The magic toothbrush went into her throat. The magic toothbrush felt hard at the bottom had a
“deep hole” that she could feel with her tongue, and the toothpaste tasted like “icky old chocolate”
and “the stem of strawberries.” Seward never said anything, and the victim could not hear anything
while this was occurring.
The jury returned a guilty verdict. The district court imposed a sentence of forty years with
twenty-five years determinate. Seward appeals.
II.
STANDARD OF REVIEW
The existence of an impermissible variance between a charging instrument and the jury
instructions is a question of law over which we exercise free review. State v. Sherrod, 131 Idaho
56, 57, 951 P.2d 1283, 1284 (Ct. App. 1998).
When a defendant alleges that a constitutional error occurred at trial and the alleged error
was not followed by a contemporaneous objection, the claim of error must be reviewed under the

2
fundamental error doctrine. State v. Miller, 165 Idaho 115, 119, 443 P.3d 129, 133 (2019). In
order to obtain relief under the fundamental error doctrine, the defendant must demonstrate three
things. First, the defendant must show that one or more of the defendant’s unwaived constitutional
rights were violated. Id. Second, the error must be clear and obvious, meaning the record must
demonstrate evidence of the error and evidence as to whether or not trial counsel made a tactical
decision in failing to object. Id. Third, the defendant must demonstrate that the error affected the
defendant’s substantial rights, which means the error identified in the first and second prongs of
the test actually affected the outcome of the trial. Id.
III.
ANALYSIS
Seward contends there was a fatal variance between the charging document and jury
instruction 17, creating a due process violation, which is reviewable as fundamental error. Seward
argues the variance allowed the jury to find him guilty of uncharged acts of lewd conduct. The
State argues that even though the language of the instruction does not exactly match the language
of the charging document, it does not rise to the level of a fatal variance. Specifically, the State
argues that the evidence does not suggest any lewd conduct other than oral-genital contact as
charged. Consequently, there was no other acts of lewd conduct of which Seward lacked fair
notice or for which the jury could convict and so Seward was not mislead or surprised in his
defense. Seward also argues that the district court abused its discretion by imposing an excessive
sentence. We will address these arguments in turn.
A. Variance
Seward argues the district court created fundamental error when it provided the jury with
instruction 17, which created a fatal variance between the charging document and the instruction.
The State argues there was no fundamental error because any variance was not fatal, Seward was
not misled or embarrassed in the preparation of his defense, and Seward has failed to show
prejudice because the evidence does not suggest Seward was convicted for any lewd conduct other
than oral-genital contact as charged. Seward concedes he did not object to the jury instructions.
The issue presented is two-fold. The first question is whether there is a variance between
the information charging Seward with one count of lewd conduct with a minor under sixteen and
instruction 17. See State v. Brazil, 136 Idaho 327, 329, 33 P.3d 218, 220 (Ct. App. 2001). Second,

3
if a variance exists, the question is whether the variance rises to the level of prejudicial error
requiring reversal of the conviction. Id.
A variance exists when the instructions to the jury do not match the allegation in the
charging document as to the means by which a defendant is alleged to have committed the crime
charged. State v. Folk, 151 Idaho 327, 342, 256 P.3d 735, 750 (2011). A variance between a
charging instrument and a jury instruction is fatal and necessitates reversal only when it deprives
the defendant of the right to fair notice or leaves him or her open to the risk of double jeopardy.
State v. Windsor, 110 Idaho 410, 417-18, 716 P.2d 1182, 1189-90 (1985); Brazil, 136 Idaho at
330, 33 P.3d at 221. Put another way, a variance is fatal if it amounts to a constructive amendment.
State v. Jones, 140 Idaho 41, 49, 89 P.3d 881, 889 (Ct. App. 2003). A constructive amendment
occurs if a variance alters the charging document to the extent the defendant is tried for a crime of
a greater degree or a different nature. State v. Wolfrum, 145 Idaho 44, 47, 175 P.3d 206, 209 (Ct.
App. 2007); Jones, 140 Idaho at 49, 89 P.3d at 889; State v. Colwell, 124 Idaho 560, 566, 861 P.2d
1225, 1231 (Ct. App. 1993). When a constructive amendment occurs, the defendant is deprived
of fair notice and is misled or embarrassed in the preparation or presentation of his defense.
Windsor, 110 Idaho at 418, 716 P.2d at 1190.
A variance “is not fatal if the defendant had notice of it or was not misled or surprised in
preparation of his defense.” Miller, 165 Idaho at 120, 443 P.3d at 134. Thus, under Miller, a
variance will not be considered fatal if the court finds that either: (1) the defendant had notice; or
(2) the defendant was not misled or surprised in the preparation of his defense. In essence, Seward
claims both grounds are satisfied in this case because: (1) Seward did not have notice of the other
uncharged acts until the court gave jury instruction 17, which included the language “any other
lewd or lascivious act”; and (2) Seward was not aware the uncharged acts could be considered by
the jury, he was misled and surprised in his defense. We will address both arguments.
Here, the State’s information charged Seward with one count of lewd conduct with a child
under sixteen, alleging that Seward had committed a “lewd and lascivious act upon and/or with
the body of [the victim] . . . by genital to oral contact.” At trial, the district court adopted
instruction 17, which stated, in relevant part, that the jury may convict if it found “the defendant,
CODY JOHN SEWARD, committed an act of genital-oral contact and/or any other lewd or
lascivious act upon or with the body of [the victim].” (Emphasis added.) Neither party objected
to this instruction. On appeal, the parties do not dispute there was a variance.

4
This Court must determine whether the variance rises to the level of prejudice requiring
the reversal of conviction. Seward contends the variance between the charging document, which
only stated genital-oral contact, and the jury instruction, which included “and/or any other lewd or
lascivious act,” is fatal and cites Folk, 151 Idaho 327, 256 P.3d 735, as support. In Folk, Folk was
charged only with oral-genital contact with a minor. Id. at 339, 256 P.3d at 747. During
deliberations, the jury asked the court three questions. First, the jury asked whether it had to find
that Folk committed an act of oral-genital contact upon the victim, asking: “Are we proving oral,
genital contact, or is this an issue of any lewd and lascivious conduct?” Id. Next, the jury asked
if it could find Folk committed some other act of lewd and lascivious conduct, asking, “Is this a
matter of Jon doing oral sex with [Child] or any type of sexual advancement?” Id. The third
question asked if the jury could find Folk guilty of some lewd or lascivious act other than oral-
genital, and if so, “what a [sic] definition of lewd and lascivious.” Id. at 340, 256 P.3d at 748. The
district court responded with a note stating:
“Lewd and Lascivious [sic] Conduct’ is the statutory name for a category of sexual
touching crimes that include oral-genital contact, genital-genital contact, genital-
anal contact, manual-genital contact, manual-anal contact, oral-anal contact, etc.
Here the allegation is oral-genital (mouth to penis) contact, which is, by definition,
lewd and lascivious conduct.”
Id.
The Supreme Court found the district court erred in two ways relevant to this opinion.
First, because Folk was only charged with lewd conduct by oral-genital contact, “including genital-
genital contact, genital-anal contact, manual-genital contact, manual-anal contact, and oral-anal
contact in the jury instruction had no relevance to this case. Although it may have been harmless
to have done so, since there was no evidence of any such contact, jury instructions should not
include irrelevant information.” Id. Second, because the jury asked if it could convict on conduct
other than the oral-genital conduct, when the district court provided a definition that included
alternate ways in which lewd conduct could occur, “the court was indicating that it could find
[Folk] guilty of lewd and lascivious conduct rather than oral-genital contact. In this case, a valid
conviction could be based only upon a finding beyond a reasonable doubt that Defendant engaged
in an act of oral-genital contact.” Id. The Supreme Court vacated the judgment of conviction and
remanded the case. Id. at 342, 256 P.3d 750.
The holding in Folk was revisited in Miller, 165 Idaho 115, 443 P.3d 129. In Miller, the
charging document alleged Miller committed injury to a child when “Miller ‘willfully caused or
5
permitted the child to be placed in a situation that its person or health may be endangered . . . by
driving an automobile, with the child as a passenger, in an aggressive or reckless manner and while
eluding law enforcement.’” Id. at 121, 443 P.3d at 135. The jury instruction read: “The Defendant
wilfully [sic] caused or permitted the child to be placed in a situation that may have endangered
the child’s person or health.” Id. Miller argued that the charging document:
[A]lleged Miller committed injury to a child by “driving an automobile, with a child
as a passenger, in an aggressive or reckless manner while eluding law enforcement”
whereas Jury Instruction No. 21 did not mention an automobile and instead stated
Miller was guilty of the crime if he willfully caused the child to be “placed in a
situation that may have endangered the child’s person.”
Id. During closing argument, the prosecutor stated that Miller stopped in a field and let the child
run out of the vehicle, knowing there was a dangerous situation because law enforcement was there
and one of the officers had pulled out his service weapon. Id. Miller argued that the prosecutor’s
closing statement, when combined with the jury instruction, created a new means of committing
injury to a child because the jury could convict him for creating a situation in which the officer
drew his weapon in the child’s presence. According to Miller, this new means of committing an
injury-to-child offense created a fatal variance. Id.
The Idaho Supreme Court reiterated that variances are not fatal when the defendant is on
notice of the variant theory or if the defendant is not surprised or misled in his defense. Id. The
Court concluded Miller was on notice that the State might address the child running out of the
vehicle after it stopped. Id. The Court noted there was nothing in the charging document that
indicated the State’s argument was limited to events that occurred while the vehicle was moving.
Id. Instead, the Court held that the fact of the child running from the vehicle was directly related
to Miller’s act that “willfully caused or permitted the child to be placed in a situation that its person
or health may be endangered . . . by driving an automobile, with the child as a passenger, in an
aggressive or reckless manner and while eluding law enforcement.” Id.
The Court distinguished Miller from Folk for several reasons. First, in Folk, the variance
permitted Folk to be convicted based on acts that were not covered by the charging statute but in
Miller, nothing was alleged that would have allowed Miller to be convicted based on acts outside
the injury to a child statute. Id. at 121-22; 443 P.3d 135-36. Second, Miller’s counsel responded
to witness testimony about the child running from the car and therefore was on notice that the
child’s actions outside of the vehicle may be addressed. Id. at 122, 443 P.3d at 136. During
defense counsel’s closing argument, he rebutted the allegation in the prosecutor’s closing
6
statement and put on a defense regarding the allegation. Id. Ultimately, the Court held that because
the variance was not fatal, Miller could not establish that his due process rights were violated and,
as a result, failed to meet the first prong of the fundamental error analysis. Id. A failure to satisfy
the first prong of the fundamental error analysis obviated the need to address the remaining two
prongs, and Miller was unable to show fundamental error. Id.
State v. Bernal, 164 Idaho 190, 427 P.3d 1 (2018), is also instructive. In Bernal, the
charged conduct was attempted assault, but the jury instruction included the theory of assault by
threat. Id. at 195, 427 P.3d at 6. The Supreme Court held that the variance between the charging
document and the jury instruction was not fatal because Bernal had notice of the variance and that
the State might prove its case on the varied instruction. Id.
Here, the facts and circumstances surrounding Seward’s case are distinguishable from Folk
and Miller in a number of ways. Unlike in Folk, the jury in this case never submitted questions to
the district court asking for clarification regarding the jury instructions. There is no evidence the
jury sought to convict Seward on any basis other than genital-oral contact or of a crime of greater
degree or of a different nature than charged. Second, the jury instruction at issue in Folk expressly
included several other categories of lewd or lascivious conduct whereas here, the only category
included in instruction 17 was “genital-oral contact.” Third, Seward has, in effect, argued that he
was surprised by the instructions but has not pointed to anything in the record to show his defense
was adversely affected by the jury instructions given. In Miller, the Court found the charging
document did not limit the State’s ability to discuss Miller’s actions outside of the vehicle when
discussing danger to the minor. Conversely, the charging document in this case did limit the State
to only discussing evidence that would support “genital-to-oral contact,” and the State did not put
on evidence of any other actions by Seward that would be considered lewd or lascivious.
In this case, the only conduct for which Seward could have been convicted was genital-
oral contact. The victim, who was seven years old at the time of trial, testified extensively as to
the “squishy” “toothbrush” with a “deep hole” that felt “like skin” which Seward used to ostensibly
brush her teeth. These are the genital-oral acts charged by the State. Seward, however, contends
that there were “other uncharged acts, such as laying [the victim] on the ground, blindfolding her,
holding her mouth open to stick something in her mouth, brushing her teeth only when her
stepmother was gone, and locking her brothers in their rooms while this occurred.” Pointing to
Folk, Seward contends that the language in the instruction “suggested that the jury could also

7
convict Mr. Seward for any other act against [victim]--aside from the charged conduct--provided
that they found the act was performed lewdly.” Seward contends that the jury could have convicted
him for these “other uncharged acts” based on the jury instruction language that included “any
other lewd or lascivious act.”
None of these claimed other uncharged acts fit within the statutory definition of lewd or
lascivious acts. None of these other acts, standing alone or in combination with each other, are
lewd or lascivious acts. Without association with the charged acts, these other acts are not lewd
or lascivious acts. The jury could not have considered these acts, outside the context of and
associated with the charged acts, lewd or lascivious acts or convicted Seward based upon them.
In State v. Day, 154 Idaho 476, 299 P.3d 788 (Ct. App. 2013) this Court noted that adding the
language of “any other lewd or lascivious act” in the instructions could be harmless “if no evidence
of any conduct which might be considered lewd and lascivious existed in the case beyond the
specifically charged conduct.” Id. at 481 n.2, 299 P.3d at 793 n.2. The specifically charged
conduct here, genital-oral contact, was the only conduct alleged and supported at trial that would
constitute lewd or lascivious conduct.
Stewart’s claim that he was not on notice of other uncharged acts which may be considered
by the jury as lewd or lascivious and that, therefore, he was misled and surprised in his defense is
without merit as it is premised on the existence of other uncharged lewd or lascivious acts for
which there was no evidence in this case. Again, the claimed other uncharged acts are simply not
lewd or lascivious acts upon which the jury could have convicted Seward. Consequently, the
variance is not fatal. Because the variance is not fatal, Seward has not shown the existence of an
un-waived constitutional violation in satisfaction of the first prong of the fundamental error test.
B. Sentencing
Seward argues that his sentence is excessive and that the district court improperly applied
the legal standards because its determination was primarily based on Seward’s limited cognitive
capacity. The State argues the district court properly considered all the evidence before it,
including the presentencing investigation, and that Seward has failed to show an abuse of
discretion.
Sentencing is a matter for the trial court’s discretion. Both our standard of review and the
factors to be considered in evaluating the reasonableness of the sentence are well established and
need not be repeated here. See State v. Hernandez, 121 Idaho 114, 117-18, 822 P.2d 1011, 1014-

8
15 (Ct. App. 1991); State v. Lopez, 106 Idaho 447, 449-51, 680 P.2d 869, 871-73 (Ct. App. 1984);
State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct. App. 1982). When reviewing the
length of a sentence, we consider the defendant’s entire sentence. State v. Oliver, 144 Idaho 722,
726, 170 P.3d 387, 391 (2007). Our role is limited to determining whether reasonable minds could
reach the same conclusion as the district court. State v. Biggs, 168 Idaho 112, 116, 480 P.3d 150,
154 (Ct. App. 2020). Applying these standards, and having reviewed the record in this case, we
cannot say that the district court abused its discretion.
IV.
CONCLUSION
Seward has failed to show that the variance between the charging document and jury
instructions is fatal. Seward has further failed to show the district court abused its discretion in
sentencing. Therefore, Seward’s judgment of conviction and sentence are affirmed.
Judge HUSKEY and Judge TRIBE CONCUR.

9