State v. Folk

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 36244

STATE OF IDAHO, )
) Boise, June 2011 Term
Plaintiff-Respondent, )
) 2011 Opinion No. 80
v. )
) Filed: June 30, 2011
JONATHAN EARL FOLK, )
) Stephen W. Kenyon, Clerk
Defendant-Appellant. )
)

Appeal from the District Court of the Seventh Judicial District of the State of
Idaho, in and for Bonneville County. The Hon. Jon J. Shindurling, District Judge.

The judgment of the district court is vacated.

Diane M. Walker, Deputy State Appellate Public Defender, Boise, argued for appellant.

John C. McKinney, Deputy Attorney General, Boise, argued for respondent.

EISMANN, Chief Justice.
Defendant was tried and convicted of lewd conduct. He contends that he was denied a
speedy trial, that the trial court infringed upon his right of self-representation, and that it erred in
instructing the jury. We vacate the judgment and remand this case for further proceedings
consistent with this opinion.

I.
Factual Background.
On December 25, 2007, at about 5:30 p.m., the mother of three minor children (Mother)
arrived home after running an errand and went into the kitchen to help her grandmother finish
preparing Christmas dinner. As she was walking to the kitchen, Jonathan Folk (Defendant) was
in the living room. He had come over to pick up a house guest. After about ten to fifteen
minutes, Mother walked into the living room and asked her husband where their five-year-old
son (Child) was. He said that he thought Child was in his bedroom. Mother walked to Child’s
room, and as she was nearing the open door to the room she heard Child say, “That’s gross.” As
she walked into the room, she saw Child lying on his back on the bed and Defendant kneeling
down in front of Child with Child’s legs around Defendant and his hands on Child’s hips. The
bed was a small child’s bed, about ten inches off the floor. Mother asked what they were doing,
and both Child and Defendant said they were just playing. Both Defendant and Child were fully
clothed, and it did not appear that either of them had just pulled or zipped their pants up. Mother
did not see any signs of any type of sexual act by Defendant. Defendant stood up and walked out
of Child’s room, and then returned and sat on the floor while Child picked up his toys pursuant
to Mother’s instructions. Defendant and the guest left about one and one-half hours later. At
about 4:00 a.m. that night, Child awakened Mother and stated that he had just had a nightmare.
Mother asked what it was about, and Child responded that it was about what that guy did to
Child last night. Mother asked what guy, but Child would not answer. Later that morning,
Mother telephoned the police and then asked Child what had happened last night. Child
answered that Defendant had placed his mouth on Child’s penis.
On January 9, 2008, the State filed a complaint charging Defendant with lewd conduct by
committing oral-to-genital contact with Child. The magistrate issued a warrant for Defendant’s
arrest and set bail at $100,000. Defendant was arrested, and when he appeared in court on
January 14, 2008, he requested and was appointed a public defender. Defendant remained in jail
throughout these proceedings.
The preliminary hearing was held on January 23, 2008. Prior to that date, Defendant
retained counsel to represent him. Based upon the evidence at the hearing, the magistrate found
that there was probable cause to believe that Defendant committed the crime of lewd conduct,
and he bound the Defendant over to answer in district court. Prior to the first trial setting,
Defendant’s retained counsel was permitted to withdraw because Defendant was not paying him
according to their fee agreement. The court reappointed the public defender to represent
Defendant, but he later exercised his right to represent himself. The district court had the public
defender remain as standby counsel to assist Defendant. Defendant was tried by a jury and
found guilty of lewd conduct, and the district court sentenced him to life in prison without
parole. Defendant then timely appealed.

II.

2
 Did the State Violate Defendant’s Statutory Right to a Speedy Trial?
Defendant contends that the State violated his statutory right to a speedy trial. Absent a
showing of good cause to the contrary, Idaho Code § 19-3501(2) requires the district court to
dismiss a felony case “[i]f a defendant, whose trial has not been postponed upon his application,
is not brought to trial within six (6) months from the date that the information is filed with the
court.” On January 28, 2008, the State filed an information in the district court charging
Defendant with lewd conduct by oral-to-genital contact. The trial in this case did not commence
until January 5, 2009, almost one year after the information was filed. Defendant contends that
there was no good cause for failing to bring him to trial within the six-month period. Because
the trial was postponed upon Defendant’s application prior to the running of the six-month
period, we need not address whether there was good cause under the statute.
Defendant was arraigned in district court on February 6, 2008, and he entered a plea of
not guilty to the charge. A jury trial was set to commence on March 24, 2008. On February 26,
2008, Defendant’s retained counsel filed a motion to withdraw on the ground that Defendant had
not met the terms of their financial agreement. That motion was heard on March 12, 2008, and
the court granted the motion. Because Defendant could not afford counsel, the court then
reappointed the public defender, who was present in court. The court asked the public defender
if he would be ready to proceed to trial on March 24, 2008, and when he answered that he would
not, the court rescheduled the jury trial to May 27, 2008.
We have not previously addressed whether postponement of the trial at a defendant’s
request waives the protection of the statute even if the trial is then rescheduled within the six-
month period. State v. Young, 136 Idaho 113, 116, 29 P.3d 949, 952 n.2 (2001). We now
answer that question and hold that it does.
The statute’s wording does not indicate that a defendant loses the statute’s protection
only if the postponement requested by the defendant causes the trial to be scheduled beyond the
six-month period. The statute requires dismissal “[i]f a defendant, whose trial has not been
postponed upon his application, is not brought to trial within six (6) months from the date that
the information is filed with the court.” I.C. § 19-3501(2) (emphasis added). To hold that the
postponement upon defendant’s application waives the protection of the statute only if such
postponement causes the trial to be rescheduled beyond the six-month period would require
rewriting the statute. Because the initial trial setting was postponed upon Defendant’s

3
application, he waived the protection of the statute. Therefore, Idaho Code section 19-3501(2)
did not require dismissal of this action once Defendant was not tried within six months after the
information was filed.

III.
Did the State Violate Defendant’s Constitutional Right to a Speedy Trial?
Defendant contends that he was denied his right to a speedy trial under the State and
Federal Constitutions. Article 1, section 13, of the Idaho Constitution provides, “In all criminal
prosecutions, the party accused shall have the right to a speedy and public trial . . . .” In
determining whether a defendant has been deprived of the right to a speedy trial under our State
constitution, we have adopted the four-part balancing test used by the United States Supreme
Court to determine whether a defendant has been deprived of the right to a speedy trial under the
Sixth Amendment to the Constitution of the United States. State v. Young, 136 Idaho 113, 117,
29 P.3d 949, 953 (2001). “Under the Idaho Constitution, the period of delay is measured from
the date formal charges are filed or the defendant is arrested, whichever occurs first.” Id. 1 “The
four factors to be balanced are (1) the length of the delay, (2) the reason for the delay, (3) the
assertion of accused’s right to a speedy trial, and (4) the prejudice to the accused.” Id.
a. Length of delay. The length of the delay is a triggering mechanism. “Until there is
some delay which is presumptively prejudicial, it is unnecessary to inquire into the other three
factors.” Id. “[T]he length of delay that will provoke such an inquiry is necessarily dependent
upon the circumstances of the case.” State v. Holtslander, 102 Idaho 306, 309, 629 P.2d 702,
705 (1981) (quoting Barker v. Wingo, 407 U.S. 514, 530-31 (1972)). “The courts consider the
complexity of the crime in making the determination as to whether the delay . . . is uncommonly
long . . . .” 21A Am. Jur. 2d Criminal Law § 948 (2008). In this case, formal charges were filed
on January 9, 2008, and the trial began on January 5, 2009, almost one year later. Considering
the crime charged, a delay of almost one year is sufficient to trigger our inquiry into whether
Defendant has been denied a speedy trial.
b. Reason for delay. The next factor is the reason for the delay. The first trial date was
set within about two and one-half months after the information was filed. During that period,

1
“[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to
answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth
Amendment.” United States v. Marion, 404 U.S. 307, 320 (1971).

4
Defendant was arrested, had a preliminary hearing in the magistrate court, and was bound over to
the district court where he entered a plea of not guilty. The case was then set for trial, giving
counsel time within which to prepare. Defendant does not contend that there was any
unnecessary delay during this period.
The trial was then continued for three months at the request of Defendant, from March
24, 2008, to May 27, 2008, and then to June 23, 2008. The first continuance resulted from the
withdrawal of Defendant’s retained counsel and the appointment of a public defender on March
12, 2008, who was understandably unable to be prepared for the trial scheduled twelve days
later. 2 On May 14, 2008, Defendant elected to represent himself, and the following day he
requested a continuance in order to have time for him to prepare to respond to motions filed by
the State. He agreed that the trial be rescheduled to June 23, 2008. 3
The State then requested and was granted a two-week continuance of the trial from June
23 to July 7, 2008, so that the prosecuting attorney assigned to the case could attend a previously
scheduled conference in San Francisco. On July 2, 2008, the district court heard three motions
presented by the State. They were a motion filed on May 15, 2008, to admit as excited
utterances the statements made by Child to Mother during the night immediately following the
alleged incident; a motion filed on May 15, 2008, to admit into evidence a video-taped interview
of Child; and a motion filed on June 10, 2008, to prevent Defendant from personally cross-
examining Child. The court took those motions under advisement and stated that the trial would
have to be postponed two months in order to have time to rule, especially on the motion to
prevent Defendant from personally cross-examining Child. The court rescheduled the trial to
September 8, 2008.

2
Defendant has not raised as an issue on appeal any claim that the district court abused its discretion in permitting
Defendant’s retained counsel to withdraw close enough to the trial date that the trial had to be postponed in order to
give the public defender sufficient time to prepare for the trial.
3
At the hearing on May 15, 2008, the prosecutor requested a date to hear motions prior to trial and stated that a
detective was working on obtaining evidence that may be admissible under Rule 404(b) of the Idaho Rules of
Evidence. After the prosecutor advised Defendant of something off the record and then had a discussion with him
off the record, Defendant asked for a two-week continuance in order to prepare properly. The court stated that its
next available trial date was June 23, 2008. It asked Defendant whether he had any problem with moving the trial to
June 23, and Defendant responded, “No, that sounds fine with me.” The court then rescheduled the trial to June 23,
2008.

5
 On August 28, 2008, the court issued an opinion granting the motion preventing
Defendant from cross-examining Child and ordering that Defendant’s standby counsel conduct
the cross examination by reading questions prepared by Defendant. The record on appeal does
not indicate that the court issued decisions on the other two motions prior to the trial.
There is nothing in the record indicating why it would take two months for the court to
decide the motion to prohibit Defendant from cross-examining Child. The State had submitted a
memorandum in support of that motion on June 10, 2008, three weeks in advance of the July 2
hearing. Defendant did not submit a memorandum in opposition. At the hearing, the prosecutor
did not present any additional argument. He simply stated that the preferable manner of handling
the situation would be to have Child testify over closed-circuit television, and if that could not be
done then there was case law supporting having standby counsel ask questions prepared by a pro
se defendant. In response, Defendant stated that he had no objection to his identity being
concealed from Child either by altering his voice or not showing him to Child, but he did object
to not being able to ask the questions. He stated that it would inhibit his ability to cross-examine
Child because he would have to be writing questions while standby counsel was asking a
question, and he would be losing track of what Child was saying and would not be able to watch
his body language. The court ultimately ordered that Child would testify by closed-circuit
television and that Defendant would not be able to speak during Child’s testimony. There is
simply nothing in the record indicating why the court could not have made that decision prior to
the July 7 trial date.
On August 18, 2008, the State filed a motion to postpone the trial to a date between
December 13, 2008, and January 11, 2009, on the ground that witnesses from Illinois and
Minnesota would not be available until after December 13, 2008. Those witnesses were
expected to testify about Defendant’s conduct that resulted in his two child sexual abuse
convictions in Illinois. One witness would testify that in 1992 when he was five years of age
Defendant sexually molested him, and the other would testify that in 1999 she caught Defendant
sexually molesting her four-year-old son. The State also intended to produce evidence that in
1986 Defendant sexually molested a five-year-old boy in Bonneville County, Idaho. 4 The

4
At the hearing on June 11, 2008, the State asked the district court to rule that this evidence was admissible under
Rule 404(b) of the Idaho Rules of Evidence. Defendant stated that he understood it was admissible under Idaho case
law and therefore did not object. This was before our opinion in State v. Grist, 147 Idaho 49, 205 P.3d 1185 (2009).

6
prosecutor stated that considering Child’s age the State could not go forward without those
witnesses. In support of the motion, the prosecutor also asserted:
Your Honor, these people, neither are sophisticated. I’ve had to convince
them that they could fly in an airplane and that Idaho Falls was a safe location.
And the 20-year-old’s mother is extremely worried. And I have been on the
phone numerous times convincing them that we would take care of her son. And
so like I said, this isn’t a—these aren’t sophisticated people, Your Honor, that are
used to flying around the country, you know, in a week or two notice.

The district court then granted the continuance and rescheduled the trial to commence on January
5, 2009.
The delay of about six and one-half months from June 23, 2008, to January 5, 2009, is
attributable solely to the State. At the August 27, 2008, hearing on the State’s motion to
continue the trial for convenience of the out-of-state witnesses, the prosecutor stated that the
witnesses had been prepared to come for the trial that had been scheduled on July 7, 2008. That
trial was vacated sua sponte by the district court on the ground that it needed two months to
decide whether to grant the State’s motion to prevent Defendant from personally cross-
examining Child. It is the State’s burden to provide a speedy trial. State v. Holtslander, 102
Idaho 306, 311, 629 P.2d 702, 707 (1981). The court, as a State actor, has an obligation to
dispose of matters within a reasonable time so as to not infringe upon a defendant’s right to a
speedy trial. The record does not reflect that it was necessary for the court to vacate the trial
scheduled on July 7, 2008, to give the court time to rule upon the State’s motion to prevent
Defendant from cross-examining Child. Since the State’s out-of-state witnesses would have
been available to testify on July 7 had the district court not vacated that trial date sua sponte, that
delay is attributed to the State, as is the delay caused by the asserted need to vacate the trial again
for the convenience of those witnesses. However, there is no indication that the delay
attributable to the State was for the purpose of hampering the defense. The delays attributable to
the State reflect merely negligence in preparation possibly resulting from indifference to
Defendant’s right to a speedy trial. Although delay resulting from negligence must be
considered, it is a more neutral reason that is weighed less heavily than delay intended to hamper
the defense. Barker v. Wingo, 407 U.S. 514, 531 (1972).
c. Assertion by Defendant of right to a speedy trial. Defendant first asserted his right
to a speedy trial when the district court sua sponte vacated the trial scheduled on July 7, 2008,

7
and rescheduled the trial to September 8, 2008. Defendant asked, “Your Honor, I just have one
question. Does that affect my right to a speedy trial?” The court responded, “Well, your right to
a speedy trial is to be tried within six months of the Information, unless there’s good cause
otherwise.” The court was apparently concerned about the statutory right to a speedy trial, and
not Defendant’s constitutional right. The court also stated that it found good cause to try
Defendant more than six months after the information was filed “because of the intricacies of
this defense and the process of trying to work through the prosecution and the defense.” The
court did not mention what the intricacies of the defense were. The only defense raised by
Defendant was pleading not guilty and requiring the State to prove the alleged crime. Because
the court had already ruled on all of Defendant’s motions, the intricacies of this defense
apparently referred to the fact that Defendant was representing himself and the State had asked to
prevent Defendant from cross-examining Child.
During argument on the State’s motion to continue the September 8, 2008, trial,
Defendant again raised the issue of his right to a speedy trial. He objected to the continuance
and, when asked to state his objection, said that he would have to go through the expense of
serving subpoenas again and arranging for other witnesses to appear voluntarily. He then stated,
“And the prosecutor is asking for a three-and-a-half-month continuance, which I’ll have to spend
in jail.” In granting the motion, the district court stated: “I’d note the defendant has not raised a
speedy trial issue here. It’s just a matter of he wants to get it over with. And that’s
understandable.” The court failed to appreciate that not wanting to spend additional time in
pretrial incarceration and wanting to get the matter resolved are speedy trial issues. The interests
that the right to a speedy trial is designed to protect include: “(1) to prevent oppressive pretrial
incarceration[ and] (2) to minimize anxiety and concern of the accused.” State v. Young, 136
Idaho 113, 118, 29 P.3d 949, 954 (2001).
d. Prejudice to Defendant. The final factor to be weighed is prejudice to Defendant.
“Prejudice is to be assessed in light of the interests of defendants which the right to a speedy trial
is designed to protect.” Id. The first two interests are stated above. With respect to pretrial
incarceration, Defendant was in jail throughout the pretrial proceedings. With respect to
Defendant’s anxiety and concern, as the district court stated, Defendant also wanted to “get the
matter over with.” However, the record does not reflect the degree to which Defendant was
experiencing anxiety and concern regarding other areas of his life. Defendant argues that “he

8
obviously could not work or spend time with his family; he lived under a cloud of suspicion and
he had to contend with the anxiety of waiting nearly twelve months for his trial, not knowing
whether he might walk out of jail a free men [sic] . . . .” He does not point to anything in the
record indicating that he had a job prior to his incarceration or could have obtained a job, or that
he had family members with whom he could have spent time. Likewise, he does not point to
anything in the record indicating the extent, if any, to which the pending charge was known by
others so as to create a cloud of suspicion.
The third factor is “to limit the possibility that the defense will be impaired.” Id. This
third factor is the most serious “because the inability of a defendant adequately to prepare his
case skews the fairness of the entire system.” Barker v. Wingo, 407 U.S. 514, 532 (1972). An
incarcerated defendant may be hindered in his ability to gather evidence, contact witnesses, or
otherwise prepare his defense.
Defendant contends that he suffered prejudice under the third factor, but the examples he
relies upon are not related to his inability to prepare adequately. He cites differences between
Child’s testimony at trial and his testimony at the preliminary hearing, and conflicting testimony
given by Child at trial. However, there is nothing to indicate that those differences were related
to any delay in the trial. Rather, the inconsistencies and conflicting statements cited primarily
reflect the difficulty of questioning a six-year-old witness. 5
Defendant also argues that if the trial had not been postponed, the State would not have
been able to have the out-of-state witnesses testify about Defendant’s prior sexual abuse of a
four-year-old boy and a five-year-old boy. Prejudice does not mean that the delay resulted in
evidence being admitted that otherwise would not have been available. “[A]lmost all evidence in
a criminal trial is demonstrably admitted to prove the case of the state, and thus results in
prejudice to a defendant.” State v. Leavitt, 116 Idaho 285, 290, 775 P.2d 599, 604 (1989). Delay
necessary to obtain witness testimony is not the type of prejudice that is relevant to this inquiry.
As the Supreme Court stated, “[A] valid reason, such as a missing witness, should serve to
justify appropriate delay.” Barker v. Wingo, 407 U.S. 514, 531 (1972).
Defendant also argues that he was prejudiced by the delay because this evidence should
not have been admitted. Defendant did not object to the evidence. Whether that evidence would
have been admissible had there been a proper objection is not before us on appeal.

5
By the time of trial, Child was six years old.

9
 Considering the four factors, we conclude that Defendant’s rights to a speedy trial under
the State and Federal Constitutions were not violated.

IV.
Did the District Court Deprive Defendant of
His Constitutional Right to Confront His Accuser?
At the pretrial conference on May 14, 2008, Defendant stated that he wanted to exercise
his right to represent himself and that he “would like to be qualified on that as soon as possible,
as far as competence.” The court directed the court clerk to retrieve a book that apparently listed
questions to ask in order to insure that there was a knowing and intelligent waiver of the right to
counsel. While waiting for the clerk to return, the court asked the prosecutor if he wished to
exercise the right of a victim witness to testify at a remote location, presumably pursuant to the
Uniform Child Witness Testimony by Alternative Methods Act, I.C. §§ 9-1801 to 9-1808. When
the prosecutor answered that he did not, the court stated: “I just have a little bit of concern. If
the defendant is going to represent himself, it’s a bit unusual and perhaps creates a difficult
situation if the alleged perpetrator is cross-examining the alleged victim who is a child of this
age. I’m a little uneasy about that.” The prosecutor responded, “I appreciate the Court bringing
that to the State’s attention, because I do think that the Court is correct, that that would place the
victim witness in this case in a precarious situation by being examined by the accused.” The
court then examined Defendant concerning his request to represent himself and concluded that
Defendant made that choice knowingly, intelligently, and voluntarily. At the conclusion of the
hearing, the prosecutor stated that he wanted to place the court on notice that the State would like
the examination of the Child to be done at a remote location. The court responded that it would
review the statute and they could address that.
On June 10, 2008, the State filed a motion to prohibit Defendant from personally cross-
examining Child and to have Defendant’s standby counsel conduct the cross-examination. If the
court denied that motion, the State requested as an alternative that Defendant be excluded from
visual contact with Child and that cross-examination be conducted via audio technology. The
motion was argued on July 2, 2008, and on August 28, 2008, the court issued its order stating
that Child’s testimony would be taken by alternative means outside the courtroom and that
Defendant’s standby counsel would conduct the cross-examination by reading questions

10
prepared by Defendant. The court later entered an amended order specifying that Child would
testify by closed circuit television from another room in the courthouse and that Mother, a victim
witness coordinator, and a bailiff could be present in that room. It appears that Child testified by
one-way closed circuit television, so that those in the courtroom could see Child on the television
monitor, but Child could not see who was in the courtroom. Prior to Child’s examination, the
court also ordered that Defendant was not to speak directly to the court or Child during Child’s
testimony. If Defendant had any objection to testimony or to the prosecutor’s questions, he was
to reach over and touch the arm of his standby counsel.
Defendant asserts that having child testify over closed circuit television violated
Defendant’s right of confrontation. However, he did not preserve that issue for appeal. At the
hearing on July 2, 2008, the prosecutor proposed either that Child testify by closed circuit
television or that cross-examination be conducted by Defendant’s standby counsel asking
questions written out by Defendant. In response, Defendant stated: “The defense does not
object to the identity of the defendant being concealed from the witness. To ease the witness’s
testimony, they can either alter my voice and [sic] not show myself to the witness.” He then
objected to not being permitted to conduct cross-examination by personally questioning Child as
opposed to having to write out questions to be asked by his standby counsel. In the context of
the two options proposed by the prosecutor, the Defendant’s response was that he did not object
to Child testifying by closed circuit television. Therefore, he cannot now raise that issue on
appeal.
Defendant also asserts that prohibiting him from conducting the cross-examination
violated his right of confrontation. The Confrontation Clause of the United States Constitution
includes the right to cross-examine one’s accusers. State v. Hooper, 145 Idaho 139, 176 P.3d
911 (2007) (holding that it was error to admit a video-taped interview of an alleged child victim
of sexual abuse because the defendant was deprived of the right to cross-examine the child). The
only person who could testify to the alleged sexual abuse was Child. Requiring Defendant to
write out questions to be asked by someone else in order to cross-examine Child is a significant
impairment of the right of confrontation. As Defendant argued in opposition to that proposal:
And as far as I have to write down the question and then give it him, plus process
it, what I want to ask. And that’s while he’s asking another question. And then
I’m losing track of what’s happening while he’s speaking to the witness, and I’m
not watching the witness to see if he’s—his body language.

11
 As anyone who has conducted cross-examination would know, one must be able to listen
to the answer and then, especially with young child, be able to reword the question or come up
with another question based upon the answer. Cross-examination is often a fluid process, and
the person forming the questions must be able to concentrate on the answers and what further
questions are necessary to elicit the desired information.
One result of the procedure required by the district court is that it would extend the time
it would take to cross-examine Child. This is particularly significant with a young child who
may have a short attention span. During direct examination, the prosecutor asked, “[Child], can
you pay attention over here? I know you want to color the Incredible Hulk. Can you pay
attention to what I’m saying just for a second?”
Soon into the cross-examination, Defendant’s standby attorney told the court that
Defendant wanted to refresh Child’s memory with portions of the preliminary hearing transcript.
When the court responded that Child could not read, Defendant’s standby counsel stated that
Defendant wanted to make a motion. The court called a recess, and Defendant stated to the court
that Defendant had previously filed a motion asking to have someone available to read portions
of the transcript to Child for impeachment purposes and that the court had stated there would be
someone who could do that. The court responded that at some point Defendant could put in
Child’s prior testimony for impeachment, but not now. When standby counsel asked the court
how they would be able to impeach Child, the court told Defendant, “[Child’s] attention span has
about had it, and we’re going to get this done.” The court then said that if there is a prior
inconsistent statement by Child, Defendant could offer that later. The court added: “We’re not
going to do it now, and we’re not going to do it while the child’s on the stand. So let’s get on
with questions, finish him up and get him out of here.” After further discussion about how
Defendant could present Child’s testimony from the preliminary hearing, the court again
admonished Defendant that the court was not going to allow extensive cross-examination of
Child. Defendant answered, “Okay. I’ll do my best to cut it short.” Standby counsel resumed
cross-examination of Child, and after Child answered “No” to a series of questions about
whether he remembered anything about the day they were talking about, standby counsel stated:
“[Child], can you sit up for just a minute? We’re almost done buddy. You’re doing really
good.” After some further questioning, Child fell asleep.

12
 We need not decide the circumstances that would permit a court to prevent a pro se
defendant from personally cross examining the alleged child abuse victim. In Maryland v.
Craig, 497 U.S. 836 (1990), the Supreme Court held that “where necessary to protect a child
witness from trauma that would be caused by testifying in the physical presence of the defendant,
at least where such trauma would impair the child’s ability to communicate, the Confrontation
Clause does not prohibit [having the child testify by one-way closed circuit television].” Id. at
857. The Court added, “the Confrontation Clause requires the trial court to make a specific
finding that testimony by the child in the courtroom in the presence of the defendant would result
in the child suffering serious emotional distress such that the child could not reasonably
communicate.” Id. at 858 (emphasis in original).
If, in order to have a child testify by closed circuit television, the Confrontation Clause
requires a finding that the child testifying in the presence of the defendant would result in the child
suffering serious emotional distress such that the child could not reasonably communicate, then
there must be a similar finding that such trauma would result merely from hearing the
defendant’s voice in order to prohibit a defendant from personally cross-examining the child
while the child is on closed circuit television. In this case, the district court found that there was
clear and convincing evidence that Child would suffer serious emotional trauma that would
substantially impair Child’s ability to communicate if he were to testify in the presence of
Defendant. On that basis, the court ordered that Child would testify on closed circuit television.
The court then assumed that Child would suffer similar trauma if he merely heard Defendant’s
voice. Because there are no facts supporting the first finding, there are likewise no facts
supporting the assumption.
There was no expert testimony presented regarding the effect, if any, upon Child if he
testified in the presence of Defendant. In its order, the court wrote that the finding was based
upon Mother’s testimony “that [Child] has suffered from nightmares about Defendant, and [Child]
himself has testified that Defendant told [Child] not to tell anyone about the incident.” Mother did
not testify that Child suffered from nightmares (plural) about Defendant. She testified that during the
night following the alleged incident, Child awakened at about 4:30 a.m. and said he had a nightmare
about Defendant. There was no evidence that he had any other nightmares regarding Defendant
during the ensuing year until trial. Likewise, Child did not testify that Defendant told him not to tell
anyone about the incident. Rather, Child testified during the preliminary hearing that Defendant put

13
his hand over Child’s mouth while they were in the bedroom because Defendant did not want anyone
to know. In addition, Child testified in the presence of Defendant during the preliminary hearing,
and there is no contention that Child was unable to communicate or that he suffered trauma while
testifying. Since there was no evidence supporting the use of closed-circuit television, there was
clearly no evidence supporting the order preventing Defendant from personally cross-examining
Child. There was also no evidence indicating that if Defendant were permitted to conduct the cross-
examination, he would seek to intimidate or embarrass Child or otherwise abuse the right of cross-
examination. If he did so, the Court could take appropriate action. The district court infringed upon
Defendant’s right to cross-examine Child.

V.
Did the District Court Infringe upon Defendant’s Constitutional Right to Represent
Himself by Requiring that He Write Down Any Questions He Had
for the Alleged Victim and Have Standby Counsel Read Them?
Article 1, section 13, of the Idaho Constitution provides that “[i]n all criminal
prosecutions, the party accused shall have the right . . . to appear and defend in person and with
counsel.” (Emphasis added.) Likewise, the Sixth Amendment to the United States Constitution
guarantees the right of self-representation. Faretta v. California, 422 U.S. 806, 819 (1975).
Faretta dealt with the denial of the right of self-representation. In McKaskle v. Wiggins, 465
U.S. 168 (1984), the Supreme Court dealt with infringement upon that right by standby counsel’s
unsolicited participation. The Court held that “the pro se defendant is entitled to preserve actual
control over the case he chooses to present to the jury” and participation by standby counsel
“without the defendant’s consent should not be allowed to destroy the jury’s perception that the
defendant is representing himself.” Id. at 178. Although McKaskle did not address the issue in
this case, there is language in the opinion that is instructive.
A defendant’s right to self-representation plainly encompasses certain
specific rights to have his voice heard. The pro se defendant must be allowed to
control the organization and content of his own defense, to make motions, to
argue points of law, to participate in voir dire, to question witnesses, and to
address the court and the jury at appropriate points in the trial.

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Id. at 174 (italics in original). Absent evidence that would justify doing so, preventing
Defendant from personally conducting the cross-examination infringed upon his right to
represent himself.

VI.
Did the District Court Err in Instructing the Jury that They Could Find
Defendant Guilty Based upon Conduct Not Constituting the Crime of Lewd Conduct?
In the information, the State charged Defendant with lewd conduct “by oral-to-genital
contact.” In Instruction No. 16, the court instructed the jury as follows:
In order for the defendant to be guilty of Lewd and Lascivious Conduct,
the state must prove each of the following:

1. On or about December 25, 2007
2. in the state of Idaho
3. the defendant Jonathan Earl Folk committed an act of oral-genital
contact upon or with the body of [Child].
4. [Child] was a child under sixteen (16) years of age, and
5. the defendant committed such act with the specific intent to arouse,
appeal to, or gratify the lust or passions or sexual desires of either of
them.

If any of the above has not been proven beyond a reasonable doubt, then
you must find the defendant not guilty. If each of the above has been proven
beyond a reasonable doubt, you must find the defendant guilty.

During the jury’s deliberations, it sent the court a note asking three questions. The first
two questions asked whether the jury had to find that Defendant committed an act of oral-genital
contact upon Child or whether the jury could simply find that Defendant committed some other
act of lewd and lascivious conduct. The jury asked: “Are we proving oral, genital contact, or is
this an issue of any lewd and lascivious conduct? Is this a matter of Jon doing oral sex with
[Child] or any type of sexual advancement?” The third question asked, if the jury could find the
Defendant guilty of some act of lewd and lascivious conduct other than oral-genital contact, what
is the definition of lewd and lascivious conduct. The third question was as follows, “If lewd and
lascivious is the case, what a [sic] definition of lewd and lascivious.”
The correct response to the questions would have been to refer the jury to Instruction No.
16 and to tell the jury that it had to find that Defendant committed an act of oral-genital contact

15
upon Child. However, the district court did not do so. It responded with a note stating as
follows: “ ‘Lewd and Liscivious [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.”
Defendant objected to including et cetera in the definition of lewd and lascivious conduct
and asked that it be removed from the response. Defendant’s standby counsel added that
removing the et cetera “just might narrow it down so that they don’t,” when he was cut off by the
court. It explained that by using et cetera it was merely trying to track the language of the
statute, which states that lewd conduct includes but is not limited to specifically defined
conduct. 6 The court added that the list of conduct in the statute was not exclusive and that the
court’s response was “merely saying this is some of the things that might apply, and there may
be others.”
The court’s response erred in three respects. First, Defendant was only charged with
lewd conduct by committing 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.
Second, the jury asked if it could find Defendant guilty of lewd and lascivious conduct
rather than oral-genital contact and, if so, what was the definition of lewd and lascivious conduct.
By defining that term, the court was indicating that it could find Defendant 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.

6
The statute, Idaho Code section 18-1508, provides as follows:

Any person who shall commit any lewd or lascivious act or acts upon or with the body or
any part or member thereof of a minor child under the age of sixteen (16) years, including but not
limited to, genital-genital contact, oral-genital contact, anal-genital contact, oral-anal contact,
manual-anal contact, or manual-genital contact, whether between persons of the same or opposite
sex, or who shall involve such minor child in any act of bestiality or sado-masochism as defined in
section 18-1507, Idaho Code, when any of such acts are done with the intent of arousing,
appealing to, or gratifying the lust or passions or sexual desires of such person, such minor child,
or third party, shall be guilty of a felony and shall be imprisoned in the state prison for a term of
not more than life.

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 Finally, the court’s inclusion of “etc.” following the list of prohibited conduct reinforced
that the jury could find Defendant guilty of conduct other than oral-genital contact. As the court
acknowledged, adding the et cetera was “merely saying this is some of the things that might
apply, and there may be others.” There were no things other than oral-genital contact that could
apply in this case. That error was not remedied by informing the jury, “Here the allegation is
oral-genital (mouth to penis) contact, which is, by definition, lewd and lascivious conduct.”
Oral-genital contact was not merely the allegation; it was the conduct that had to be proved
beyond a reasonable doubt in order for Defendant to be guilty. It had to be clear to the jury that
Defendant could not be found guilty based upon some other conduct, even if the jury believed
such conduct could be described as lewd and lascivious because it was some other “type of
sexual advancement.” By stating that oral-genital contact was merely the allegation and
including the et cetera in the response, the court was indicating that Defendant could be guilty
based upon some other type of conduct that the jury believed was lewd and lascivious.
The only type of conduct for which Defendant could lawfully have been convicted was
oral-genital contact, even if the jury believed that Defendant engaged in other touching with the
intent to gratify his lust, passions, or sexual desires. Reviewing the history of the statute and this
Court’s prior opinions will explain why.
Prior to 1984, the statute provided:
Any person who shall willfully and lewdly commit any lewd or lascivious
act or acts upon or with the body or any part or member thereof of a minor or
child under the age of sixteen years, with the intent of arousing, appealing to, or
gratifying the lust or passions or sexual desires of such person or of such minor or
child, shall be guilty of a felony and shall be imprisoned in the state prison for a
term of not more than life.

Ch. 1 § 1, 1973 Idaho Sess. Laws 1, 1.
On July 20, 1983, a federal district judge issued his opinion in Schwartzmiller v.
Gardner, 567 F.Supp. 1371 (1983), in which he held unconstitutionally vague the wording of
Idaho Code § 18-6607, the former lewd conduct statute. He stated:
The statute’s downfall is its absolute failure to list any of the acts which
will subject one to its punishment. Rather, it vaguely hints of sexual overtones
and the terms “lewd” and “lascivious” simply lack such well accepted, commonly
understood definitions to give “sufficient warning that men may conduct
themselves so as to avoid that which is forbidden”. Rose v. Locke, 423 U.S. 48,
50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975). Neither is this a case where the

17
 offending language is rendered more explicit because it is combined with some
other more precisely defined word. The Court thus concludes that the plain
language of § 18-6607 is insufficiently definite to inform persons of ordinary
intelligence what is outlawed and to provide law officers, judges, and juries
legally fixed standards to guide enforcement.

567 F.Supp. at 1376 (emphasis added).
The court suggested that the Idaho legislature amend the lewd conduct statute to identify
the specific conduct intended to be prohibited.
As a footnote, the Court adds that many “forward-looking jurisdictions
have expressly rejected the antiquated notion that the penal code should not
clearly define such acts.” Balthazar v. Supreme Court, 573 F.2d 698, 701 (1st
Cir. 1978). The phrase “such acts” obviously refers to the specific conduct the
legislature seeks to prohibit. In the future, convictions under § 18-6607 can be
constitutionally obtained only against defendants who engage in conduct to which
the Idaho Supreme Court has already applied the statute, or which the same Court
has specifically said is lewd and lascivious. Because that is the limit of its present
scope, the Idaho Legislature may decide to rewrite § 18-6607 so that it complies
with constitutional minimums of due process; if so the Court refers that body to 18
U.S.C. § 2253 (1978) as a guide:
(2) “sexually explicit conduct” actual or simulated —
(A) sexual intercourse, including genital-genital, oral-genital, anal-genital,
or oral-anal, whether between persons of the same or opposite sex;
(B) bestiality;
(C) masturbation;
(D) sado-masochistic abuse (for the purpose of sexual stimulation); or
(E) lewd exhibition of the genitals or pubic area of any person;

Congress passed that statute and accompanying definitions to enable the
District of Columbia to curb sexual exploitation of children. The language used
could not irritate the moral sensibilities of anyone and it complies with all notions
of due process by providing fair notice and sufficient legal guidelines for law
enforcement. But that is a determination the legislature must make.

567 F.Supp. at 1379 (emphasis added).
The Idaho legislature took the judge’s suggestion, and in 1984 it amended Idaho Code
section 18-6607 and redesignated it as section 18-1508. The amendment was as follows:
18-66071508. LEWD CONDUCT WITH MINOR OR CHILD UNDER
SIXTEEN. Any person who shall willfully and lewdly commit any lewd or
lascivious act or acts upon or with the body or any part or member thereof of a
minor or child under the age of sixteen (16) years, including but not limited to,
genital-genital contact, oral-genital contact, anal-genital contact, oral-anal contact,
manual-anal contact, or manual-genital contact, whether between persons of the

18
 same or opposite sex, or who shall involve a minor or child in any act of bestiality
or sado-masochistic abuse or lewd exhibition as any of such acts are defined in
section 18-1507, Idaho Code, when any of such acts are done with the intent of
arousing, appealing to, or gratifying the lust or passions or sexual desires of such
person or of such minor or child, shall be guilty of a felony and shall be
imprisoned in the state prison for a term of not more than life.

Ch. 63, § 2, 1984 Idaho Sess. Laws 112, 112-13.
As amended, the statute criminalized certain conduct, “including but not limited to”
specifically defined bodily contact. In State v. Kavajecz, 139 Idaho 482, 80 P.3d 1083 (2003),
we addressed whether touching or kissing the chest of a prepubescent girl constituted lewd
conduct. This Court held that it did not because the type of conduct included in the phrase
“including but not limited to” must be the conduct of a like or similar class or character to the
types of conduct specifically listed. Id. at 486-87, 80 P.3d at 1087-88.
In this case, Defendant was charged with lewd conduct by committing oral-genital
contact upon Child. The instructions to the jury must 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. Hopper, 145 Idaho 139, 147, 176 P.3d 911, 919 (2007). Otherwise, there can be a fatal
variance between the jury instructions and the charging document. Also, the jury instruction
must not permit the defendant to be convicted of conduct that does not constitute the type of
crime charged.
In this case, there was testimony from Mother that, when she entered the bedroom, she
saw Child lying on his back on the bed and Defendant kneeling down in front of Child with
Child’s legs around Defendant and his hands on Child’s hips. Defendant testified that just prior
to Mother walking into the bedroom, he had been tickling Child’s feet and belly. If the jury
believed that Defendant was intending to gratify his lust, passions, or sexual desires, which it
obviously did, the jury could have found Defendant guilty based upon this type of touching, due
to the inclusion of et cetera in the instruction defining lewd and lascivious conduct. This type of
physical contact would not constitute the crime of lewd conduct, although it may have
constituted attempted lewd conduct had the jury been so instructed. Thus, the jury instruction
would have permitted the jury to find Defendant guilty of conduct that does not constitute the
crime of lewd conduct.

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 VII.
Conclusion.
For the above reasons, we vacate the judgment of conviction and jury verdict, and we
remand this case for further proceedings that are consistent with this opinion.

Justices BURDICK, J. JONES, W. JONES and HORTON CONCUR.

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