Compiler’s Notes.

The phrase “its effective date” and “the effective date of this code” in subsections (2) and (3) refer to the effective date of the criminal code enacted by S.L. 1972, Chapter 381, effective April 1, 1972.

The term “this act” at the end of the first paragraph in subsection (4) refers to S.L. 1972, Chapter 381, which is codified as§§ 18-100, 18-111A, 18-111B, 18-216, 18-303, 18-308, 18-309, 18-401, 18-1351 to 18-1358, 18-4901, 18-6409, 18-7032, 18-7401, and 19-2601.

The words enclosed in parentheses so appeared in the law as enacted.

Application.

Cited

Where defendant committed crime prior to enactment of S.L. 1972, chapter 381, it was within the trial court’s discretion whether to apply the new law or the old. State v. Musquiz, 96 Idaho 105, 524 P.2d 1077 (1974). Cited State v. Barlow, 113 Idaho 573, 746 P.2d 1032 (Ct. App. 1987).

Cross References.

Meaning of “this code,”§ 18-100(1).

Prior Laws.

Former§ 18-101, which comprised R.S., R.C., & C.L., § 6301; C.S., § 8074; I.C.A.,§ 17-101, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-101, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Effective Dates.

Section 14 of S.L. 1972, ch. 336 declared an emergency and provided that the act should take effect on and after April 1, 1972.

Instructions.

In prosecution where defendant was found guilty of the crime of wilful concealment and the jury was instructed on the charged offense of petit theft and also on the lesser included offense of wilful concealment, these instructions adequately addressed the subject matter of the requested instruction on the statutory definition of negligence, as set forth in subdivision (2) of this section. State v. Fetterly, 126 Idaho 475, 886 P.2d 780 (Ct. App. 1994).

Where defendant was found guilty of crime of wilful concealment, an explanation of the mental state, wilfulness, which is a requisite for guilt of the crime of wilful concealment, was given to the jury which was instructed that, in order to find defendant guilty of wilful concealment, they would have to find the state had proven beyond a reasonable doubt that defendant had wilfully concealed goods or merchandise belonging to store while still upon the premises of the store, and the jury was given a definition of “wilfully” which was drawn from the definition in subdivision (1) of this section. State v. Fetterly, 126 Idaho 475, 886 P.2d 780 (Ct. App. 1994).

Malice.

Although the definition of malice as set forth in the former section was not applicable in a murder case, any error of such an instruction was rendered harmless where the jury was also fully instructed concerning the frame of mind required by§ 18-4002. State v. Dillon, 93 Idaho 698, 471 P.2d 553 (1970), cert. denied, 401 U.S. 942, 91 S. Ct. 947, 28 L. Ed. 2d 223 (1971).

Where it reasonably could be inferred from the evidence that the defendants knew they were committing a wrongful act, i.e., taking, without permission, property belonging to someone other than themselves, the drawing of such an inference properly would be within the province of the jury, not the court, in deciding whether, as a matter of fact, the conduct of the defendants was “malicious” under the trespass statutes. State v. Gissel, 105 Idaho 287, 668 P.2d 1018 (Ct. App. 1983).

The question whether an act was committed with malice or whether a person was actuated by malice is ordinarily a question for the jury, as the triers of fact, to be determined in the light of all the surrounding facts and circumstances which tend to establish or dispute the existence of malice. State v. Gissel, 105 Idaho 287, 668 P.2d 1018 (Ct. App. 1983).

The definition of “malice” in subdivision (4) of this section leaves no room for an interpretation of the term to include negligence. State v. Nastoff, 124 Idaho 667, 862 P.2d 1089 (Ct. App. 1993).

The use of “maliciously” to modify the verbs “injures or destroys,” in§ 18-7001, indicates that the act that must be performed with intent to injure or destroy the property; there is no implied legislative intent to create criminal liability under§ 18-7001, where the injury to property was an unintended consequence of conduct that may have violated some other statute. State v. Nastoff, 124 Idaho 667, 862 P.2d 1089 (Ct. App. 1993). In a first degree murder case, the trial court erred by improperly instructing the jury as to the definition of malice. The incorrect expansion of the definition of malice in the jury instructions lowered the state’s burden of proof on that element of the offense. However, defendant was not entitled to post-conviction relief, because the jury’s determination that appellant’s killing of the victim was premeditated negated any possibility of prejudice from the incorrect malice instruction. Sheahan v. State, 146 Idaho 101, 190 P.3d 920 (Ct. App. 2008).

Negligence.

Instructions defining negligence in language of the statute were not erroneous. State v. Brace, 49 Idaho 580, 290 P. 722 (1930), overruled in part, State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937). See also, State v. Patterson, 60 Idaho 67, 88 P.2d 493 (1939); State v. Hintz, 61 Idaho 411, 102 P.2d 639 (1940).

This section, read in connection with§ 18-114, qualifies the definition of negligence, it being apparent from the context of the latter section that criminal negligence is not ordinary negligence as defined in this section. State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937).

Willfully.

Instruction defining word “wilful” in words of this section is sufficient. Meservy v. Idaho Irrigation Co., 37 Idaho 227, 217 P. 595 (1923).

The term “wilfully waste”, as used in§ 18-4309, imply the conscious commission of a wrong — the waste of irrigation water with intent and design that it be wasted and without lawful excuse. State v. Hall, 90 Idaho 478, 413 P.2d 685 (1966).

Although “wilfulness” is not defined within the provisions of the former Idaho Securities Act [see now§ 30-14-508], since both the Idaho Securities Act and the criminal code relate to criminal prosecutions, the definition of wilfulness, as set forth in the criminal code, is applicable. State v. Montgomery, 135 Idaho 348, 17 P.3d 292 (2001).

The term “willfully,” when describing the mens rea necessary for a conviction under the “willfully permit” prong of§ 18-1501(1), goes beyond the generalized provisions of this section and requires more than a purpose or willingness to commit the act or make the omission referred to. The state was required to show that defendant had knowledge of the consequences that his son would suffer “unjustifiable physical pain or mental suffering” as a result of his omission. State v. Young, 138 Idaho 370, 64 P.3d 296 (2002).

Where defendant picked his wife up and threw her to the floor, causing injury to her arm, the circumstantial evidence was sufficient to charge him with the crime of felony domestic battery; his intent to willfully inflict a traumatic injury to his wife could be inferred from his conduct. State v. Reyes, 139 Idaho 502, 80 P.3d 1103 (Ct. App. 2003).

There is nothing in the context of§ 18-6409 that indicates a legislative intent for the word “wilfully” in that statute to have a meaning different from that provided by subsection 1 of this section. State v. Poe, 139 Idaho 885, 88 P.3d 704 (2004).

Under subsection 1, the term “wilfully” is to be applied as that statute defines the term unless otherwise apparent from the context. State v. Sohm, 140 Idaho 458, 95 P.3d 76 (Ct. App. 2004).

Cross References.

Department of correction,§ 20-201.

Department of juvenile corrections,§ 20-503.

State board of correction,§ 20-201A.

Amendments.

The 2008 amendment, by ch. 60, in subsection (1), in the first sentence, added “or juvenile offenders,” and in the last sentence, inserted “juvenile correctional center,’ ‘Idaho security medical program’” and “juvenile detention center (facility)’,” and added language beginning “or those facilities”; subdivided subsection (2), and therein in the introductory paragraph, inserted “charged with or” and “or who is being detained pursuant to a court order,” and in subsection (2)(a), deleted “either incarcerated or on parole or probation for that crime or in custody for trial and sentencing, and who is” preceding “being housed”; subdivided subsection (4), and therein in the introductory paragraph, deleted “on parole or probation in Idaho or” preceding “being housed”; added subsection (5); subdivided subsection (6), and therein in the introductory paragraph, substituted “or who is being detained pursuant to a court order” for “and is either incarcerated or on parole or probation for that crime or in custody for trial and sentencing”; and added subsections (9), (11), and (12) and redesignated subsections accordingly. The 2014 amendment, by ch. 63, inserted present subsection (10) and redesignated the subsequent subsections accordingly.

The 2018 amendment, by ch. 254, deleted “and 18-8008” following “18-8005” near the beginning of subsection (10).

Legislative Intent.

Section 1 of S.L. 2018, ch. 254 provided: “Legislative intent. It is the intent of the Legislature that this act shall be implemented in conjunction with the Sobriety and Drug Monitoring Program created in Sections 67-1412 through 67-1416, Idaho Code, and shall not repeal or modify the Sobriety and Drug Monitoring Program or any other such program administered by a city, municipality or county in this state.”

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 14 of S.L. 2000, ch. 272 declared an emergency. Approved April 12, 2000.

Section 9 of S.L. 2018, ch. 254 provided that the act should take effect on and after January 1, 2019.

Prisoner.

Trial court correctly dismissed a charge of escape, because, although defendant was a prisoner and had been charged with a felony, he had not yet been placed in a correctional facility when he get out of a patrol car and fled. State v. Shanks, 139 Idaho 152, 75 P.3d 206 (Ct. App. 2003).

Effective Dates.

Section 14 of S.L. 2000, ch. 272 declared an emergency. Approved April 12, 2000.

Cross References.

Meaning of this “this code,”§ 18-100(1).

Prior Laws.

Former§ 18-102, which comprised R.S., R.C., & C.L., § 6302; C.S. § 8075; I.C.A.,§ 17-102, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-102, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Jury Instruction.

Instruction in the language of this section is sufficient. It is not necessary to name the injured person; the only effect of naming him in the information, as the person intended to be defrauded, is to confine the prosecution in its proof of intent to defraud to the particular person named. State v. McDermott, 52 Idaho 602, 17 P.2d 343 (1932).

C.J.S.

§ 18-103. Civil remedies preserved.

The omission to specify or affirm in this code any liability to damages, penalty, forfeiture, or other remedy imposed by law and allowed to be recovered or enforced in any civil action or proceeding, for any act or omission declared punishable herein, does not affect any right to recover or enforce the same.

History.

I.C.,§ 18-103, as added by 1972, ch. 336, § 1, p. 844.

Cross References.

Meaning of this “this code,”§ 18-100(1).

Prior Laws.

Former§ 18-103, which comprised R.S., R.C., & C.L., § 6303; C.S., § 8076; I.C.A.,§ 17-103, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-103, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Cross References.

Meaning of this “this code,”§ 18-100(1).

Prior Laws.

Former§ 18-104, which comprised R.S., R.C., & C.L., § 6304; C.S., § 8077; I.C.A.,§ 17-104, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-104, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Cross References.

Contempts in civil proceeding,§ 7-601 et seq.

Contempts in criminal proceedings,§ 18-1801.

Contempts punishable as criminal acts,§ 18-302.

Meaning of this “this code,”§ 18-100(1).

Prior Laws.

Former§ 18-105, which comprised R.S., R.C., & C.L., § 6305; C.S., § 8078; I.C.A.,§ 17-105, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-105, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Inherent Power.

Inherent power of court to punish for contempt cannot be interfered with or abridged by legislature, at least so far as courts of record are concerned. McDougall v. Sheridan, 23 Idaho 191, 128 P. 954 (1913).

Cross References.

Meaning of this “this code,”§ 18-100(1).

Prior Laws.

Fomer§ 18-106, which comprised R.S., R.C., & C.L., § 6306; C.S., § 8079; I.C.A.,§ 17-106, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-106, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Instructions.

In involuntary manslaughter proceeding where jury at its own request was brought into presence of court and parties and asked the court if it was required to recommend punishment of defendant, and court said that was the duty of the court, it was not error for court to fail to instruct jury on matter of included offenses. State v. Scott, 72 Idaho 202, 239 P.2d 258 (1951).

Partial Repeal.

This section, in so far as inconsistent with provisions now codified as§ 19-2513, providing indeterminate sentences in certain cases, is impliedly repealed. In re Erickson, 44 Idaho 713, 260 P. 160 (1927), overruled on other grounds, Spanton v. Clapp, 78 Idaho 239, 299 P.2d 1105 (1956).

Cross References.

Meaning of this “this code,”§ 18-100(1).

Prior Laws.

Former§ 18-107, which comprised R.S., R.C., & C.L., § 6307; C.S., § 8080; I.C.A.,§ 17-107, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-107, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Measurement of Term.

For the purpose of appellate review, the date of first parole eligibility is the benchmark for measuring the term of confinement imposed by an indeterminate sentence. State v. Tisdale, 107 Idaho 481, 690 P.2d 936 (Ct. App. 1984).

Partial Repeal.

This section in so far as inconsistent with provisions now codified as§ 19-2513, providing for indeterminate sentences in certain cases, is impliedly repealed. In re Erickson, 44 Idaho 713, 260 P. 160 (1927), overruled on other grounds, Spanton v. Clapp, 78 Idaho 239, 299 P.2d 1105 (1956).

Sentence Within Limits.

A sentence within the statutory maximum will not be deemed excessive unless the defendant shows that, under any reasonable view of the facts, the term of confinement is longer than appears necessary, at the time of sentencing, to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution. State v. Tisdale, 107 Idaho 481, 690 P.2d 936 (Ct. App. 1984). Section 19-2514 sets the outer limits of a permissible sentence for a persistent violator (five years to life); this section gives the court authority to impose a sentence anywhere within those outer limits; and§ 19-2513 confers discretion upon the court to determine what portion (or all) of the sentence is determinate or indeterminate. State v. Meier, 159 Idaho 712, 366 P.3d 197 (Ct. App. 2016).

Prior Laws.

Another former§ 18-108, which comprised R.S., R.C., & C.L., § 6308; C.S., § 8081; I.C.A.,§ 17-108, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-108, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and another version was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Compiler’s Notes.

This section, which comprised I.C.,§ 18-108, as added by S.L. 1972, ch. 336, § 1, p. 844, was repealed by S.L. 1994, ch. 167, § 1, effective July 1, 1994.

Prior Laws.

Former§ 18-109, which comprised Cr. Prac. 1864, § 1; R.S., R.C., & C.L., § 6309; C.S., § 8082; I.C.A.,§ 17-109, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-109, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Conviction Before Punishment.

Reading§ 19-101 together with, this section, it is apparent that the legislature intended that neither death, imprisonment, fine nor removal or disqualification from office be imposed as punishment for a crime without there first being a legal conviction of that crime. State v. Wagenius, 99 Idaho 273, 581 P.2d 319 (1978).

Statutory Offenses.

Law creating statutory offense must define the acts necessary to constitute such offense with such certainty that a person may determine whether or not he has violated the law at the time he does the act which is charged to be a violation thereof. Accused must be informed what acts and conduct are prohibited and made punishable. State v. Burns, 53 Idaho 418, 23 P.2d 731 (1933).

Prior Laws.

Former§ 18-110, which comprised Cr. Prac. 1864, § 2; R.S., R.C., & C.L., § 6310; C.S., § 8083; I.C.A.,§ 17-110, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-110, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Cross References.

Punishment for infraction,§ 18-113A.

Prior Laws.

Former§ 18-111, which comprised Cr. Prac. 1864, §§ 3, 4; R.S., R.C., & C.L., § 6311; C.S., § 8084; I.C.A.,§ 17-111, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-111, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Amendments.

The 2014 amendment, by ch. 236, substituted “three hundred dollars ($300)” for “one hundred dollars ($100)” in the second sentence of the section.

Effective Dates.

Section 42 of S.L. 1982, ch. 353 as amended by § 2 of S.L. 1983, ch. 2 provided that the 1982 amendment of this section should become effective July 1, 1983.

Alternate Sentences.

If a sentence is suspended or lessened, or other action taken by the court, after adjudging the defendant guilty, under§ 19-2601, it is not an alternate sentence. State v. O’Dell, 71 Idaho 64, 225 P.2d 1020 (1950).

Conviction of Felony.

When the court, pursuant to plea of guilty or verdict of a jury, adjudges the defendant guilty of burglary, he has been convicted of a felony within the meaning of§ 19-2514. State v. O’Dell, 71 Idaho 64, 225 P.2d 1020 (1950).

Designation in Charge.

In a prosecution for poisoning animals, an indictment substantially in the words of the statute was sufficient to give the court jurisdiction and was not prejudicial, though the offense was designated as a misdemeanor instead of a felony. State v. Farnsworth, 51 Idaho 768, 10 P.2d 295 (1932).

Designation in Judgment.

It is only when the law makes specific provision therefor, that the court may designate the crime to be a felony; and though so provided, absent such designation in the judgment, the crime shall be deemed a misdemeanor. State v. Davidson, 78 Idaho 553, 309 P.2d 211 (1957).

Disbarment Proceedings.

Expression “felony or misdemeanor involving moral turpitude,” as used in the disbarment statute, means felonies and misdemeanors involving moral turpitude as defined by laws of this state, rather than by laws of other jurisdictions. In re Dampier, 46 Idaho 195, 267 P. 452 (1928).

Imprisonment for Default of Fine.

Statute does not forbid incarceration in prison of felon sentenced either to pay fine or undergo imprisonment upon default of such payment. Territory v. Guthrie, 2 Idaho 432, 17 P. 39 (1888).

Prosecutorial Discretion.

Where the facts legitimately invoke more than one statute, a prosecutor is vested with a wide range of discretion in deciding what crime to prosecute and this principle logically applies to a situation where the defendant’s alleged conduct could be deemed in violation either of a misdemeanor statute or of a statute declaring the offense to be an infraction. State v. Phillips, 117 Idaho 23, 784 P.2d 353 (Ct. App. 1989).

Punishment.

Where the statute expressly provided that the punishment for a designated crime may be in the penitentiary or by fine or jail sentence, then the provisions of the former section would have had application as to whether or not the particular offense was a felony or a misdemeanor, depending on the sentence imposed; but, where the statute provides that a crime be punishable by imprisonment in the state penitentiary with no alternate sentence, the punishment actually imposed is not controlling in determining whether the crime is a felony or a misdemeanor. State v. O’Dell, 71 Idaho 64, 225 P.2d 1020 (1950).

Where a violation of a statute is punishable by imprisonment in the state penitentiary, the offense is classified as a felony albeit the punishment actually imposed may be of a lesser degree. State v. Nagel, 98 Idaho 129, 559 P.2d 308 (1977).

Purpose.

This section does not purport to define a word, but rather establishes a level of offense, distinguishing felonies from infractions and misdemeanors based upon the magnitude of the penalty which may be imposed. State v. Swisher, 125 Idaho 797, 874 P.2d 608 (Ct. App. 1994).

Reduction of Offense.

Where the statute defines the crime as a felony and provides no alternate sentence, the punishment actually imposed under the commutation provisions of§ 19-2601 is inconsequential and does not reduce the offense from a felony to a misdemeanor, because the mandatory punishment was lessened by reason of said section. State v. O’Dell, 71 Idaho 64, 225 P.2d 1020 (1950).

Gun Control Act.

A person who is pardoned or who has successfully completed the period of a withheld judgment and had his or her guilty plea or conviction negated or expunged may possess and transact firearms without violating the federal Gun Control Act, 18 USCS § 921 et seq.; however, during the probationary period of a withheld judgment and during and after the term which a person serves on probation with a suspended sentence or on parole, such person is a convicted felon for the purposes of the Gun Control Act.OAG 86-16.

Cross References.

Crimes for which no penalty is fixed punishable as misdemeanors,§ 18-317.

Imprisonment for nonpayment of fine,§ 18-303.

Indeterminate sentence law,§ 19-2513.

Punishment for common law crimes,§ 18-303.

Prior Laws.

Former§ 18-112, which comprised Cr. Prac. 1864, § 151; R.S., R.C., & C.L., § 6312; C.S., § 8085; I.C.A.,§ 17-112, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-112, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Application.

One convicted of furnishing intoxicating liquors to minors is properly sentenced under this section. State v. Payton, 45 Idaho 668, 264 P. 875 (1928); State v. Stewart, 46 Idaho 646, 270 P. 140 (1928).

Where appellant was convicted of a felony escape under§ 18-2505 and receiving stolen property under§ 18-4612 (repealed), the former section applied to both felonies, and appellant was subject to imprisonment for a period of up to five years on each count. Lockard v. State, 92 Idaho 813, 451 P.2d 1014 (1969). Because the legislature unambiguously denominated a violation of§ 49-1404(2), eluding a peace officer, a felony and because it did not provide a specific prison term for that charge, the punishment set forth in this section, up to five years imprisonment and $50,000 fine, is applicable. State v. McCoy, 128 Idaho 362, 913 P.2d 578 (1996).

Attempted Escape.

Two and one-half year, indeterminate sentences were within the maximum penalty authorized by statute for attempted escape and were not excessive as the term of additional confinement did not exceed the minimum period necessary to serve society’s interest in deterring escapes. State v. Urquhart, 105 Idaho 92, 665 P.2d 1102 (Ct. App. 1983).

A unified sentence of 13 years in the custody of the board of correction with a three year minimum period of confinement was not excessive for a conviction of felony escape with persistent violator enhancement, even though defendant had not been convicted of a violent crime and the county sheriff had testified as to improvement in defendant’s conduct while in custody. State v. Holton, 120 Idaho 112, 813 P.2d 923 (Ct. App. 1991).

Construction.

This is not a maximum penalty statute but prescribes punishment for felonies only in cases where punishment is not prescribed by other sections of the statutes. In re Miller, 23 Idaho 403, 129 P. 1075 (1913).

Imprisonment imposed as alternative of fine has nothing to do with imprisonment for nonpayment of costs. State v. Montroy, 37 Idaho 684, 217 P. 611 (1923).

Reasonable Sentence.

Where the record indicated that the defendant had damaged his family, perhaps beyond repair, and the trial court considered the likelihood of rehabilitation, the seriousness of the crime, the defendant’s prior criminal record, and the fact that the defendant had consistently refused to admit the gravity of his offense or even acknowledge that he had sexually abused his three children, a ten-year indeterminate sentence for three counts of sexual abuse of a child under 16 was within the statutory maximum, and there was no abuse of discretion. State v. Snapp, 110 Idaho 269, 715 P.2d 939 (1986).

A fixed, five-year sentence on a sexual abuse charge and an indeterminate life sentence with a five-year minimum period of incarceration on a lewd conduct charge, which were to run concurrently, were not excessive nor an abuse of discretion, even though the court declined to follow the treatment recommendations of the evaluating psychologists. State v. Bartlett, 118 Idaho 722, 800 P.2d 118 (Ct. App. 1990).

Unreasonable Sentence.

Although defendant’s sentence for possession of methamphetamine was reasonable, his fixed, five-year sentence for escape was excessive where the circumstances of defendant’s escape were not aggravated or egregious. State v. Chavez, 134 Idaho 308, 1 P.3d 809 (Ct. App. 2000).

Cross References.

Imprisonment for nonpayment of fine,§ 18-303.

Meaning of this “this code,”§ 18-100(1).

Public offense for which no penalty is otherwise prescribed is punishable as a misdemeanor,§ 18-317.

Punishment for common law crimes,§ 18-303.

Prior Laws.

Former§ 18-113, which comprised Cr. & P. 1864, § 151; R.S., R.C., & C.L., § 6313; C.S., § 8086; I.C.A.,§ 17-113, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-113, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Construction.

This section fixes the maximum penalty for a misdemeanor where it has not been otherwise fixed. State v. Mulkey, 6 Idaho 617, 59 P. 17 (1899); In re Rowland, 8 Idaho 595, 70 P. 610 (1902); In re Burgess, 12 Idaho 143, 84 P. 1059 (1906); In re Miller, 23 Idaho 403, 129 P. 1075 (1913). Imprisonment imposed as alternative of fine has nothing to do with imprisonment for nonpayment of costs. State v. Montroy, 37 Idaho 684, 217 P. 611 (1923).

Judgment.

Where maximum sentence for conviction for drawing a check without funds was six months at the time the crime was committed, judgment placing defendant on probation for two years was excessive, but judgment of probation was valid for period of six months. State v. Eikelberger, 71 Idaho 282, 230 P.2d 696 (1951).

Although§ 49-1401 did not prescribe the punishment for inattentive driving, this section defines the penalty for any misdemeanor not specifically authorized by statute, such that the crime of inattentive driving was maximumly punishable by 180 days in jail. State v. Parker, 141 Idaho 775, 118 P.3d 107 (2005).

Cross References.

Infraction defined,§ 18-111.

Amendments.

The 2014 amendment, by ch. 236, rewrote the section, which formerly read: “Every offense declared to be an infraction is punishable only by a penalty not exceeding one hundred dollars ($100) and no imprisonment”.

The 2015 amendment, by ch. 198, deleted former subsection (4), which read: “An amount set by the sentencing court in its discretion where the statute or ordinance authorizing the penalty for a specific infraction violation sets an upper penalty limit using language such as ‘not to exceed’ or ‘not more than’ a specific amount; or”, redesignated former subsection (5) as subsection (4), and deleted “or having no specific upper limit for which the sentencing court has discretion under subsection (4) of this section” from the end of present subsection (4).

Legislative Intent.

Section 1 of S.L. 1982, ch. 353 read: “By the enactment of Chapter 223, Laws of 1981, the state made a dramatic move to reduce congestion in the court system, to improve the ability of peace officers to regulate and control motor vehicle traffic, and to achieve significant economies in the administration of justice. This chapter has not yet gone into effect, since it was deliberately enacted with an effective date clause of July 1, 1982. This was done to allow those officials concerned with the administration and enforcement of the law to have time to review and study its provisions.

Compiler’s Notes.

Supreme Court Infraction Rule 9, referred to in this section, was amended effective July 1, 2015, and the penalties for infractions may be found in paragraph (b), with the penalty for “other infractions” prescribed by subparagraph (46) of paragraph (b).

Effective Dates.

Section 42 of S.L. 1982, ch. 353 as amended by § 2 of S.L. 1983, ch. 2 provided that this section should become effective July 1, 1983.

Prior Laws.

Former§ 18-114, which comprised Cr. & P. 1864, § 1; R.S., R.C., & C.L., § 6314; C.S., § 8087; I.C.A.,§ 17-114, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal.

Constitutionality.

Section 18-705 and this section give fair warning to a person of common intelligence that defendant’s conduct in swinging a crutch at a police officer was forbidden and subject to the penalty of law; therefore,§ 18-705, as applied, was not constitutionally defective as void-for-vagueness. State v. Dolsby, 124 Idaho 271, 858 P.2d 810 (Ct. App. 1993).

Construction.

This section must be constructed as part of police regulations. State v. Omaechevviaria, 27 Idaho 797, 152 P. 280 (1915), aff’d, 246 U.S. 343, 38 S. Ct. 323, 62 L. Ed. 2d 763 (1918); State v. Bidegain, 33 Idaho 66, 189 P. 242 (1920).

Wicked and wilful intent to violate criminal law is not essential element or ingredient in every criminal offense. This is so in statutory crimes where statute does not make intent ingredient of crime. State v. Sterrett, 35 Idaho 580, 207 P. 1071 (1922). Whether criminal intent is necessary element of statutory offense is matter of construction to be determined by language of statute in view of its manifest purpose and design. State v. Sterrett, 35 Idaho 580, 207 P. 1071 (1922).

Conviction of involuntary manslaughter was authorized by evidence of the violation of four traffic statutes, namely, reckless driving, driving while intoxicated, at an excessive speed, and on the wrong side of the road. State v. Salhus, 68 Idaho 75, 189 P.2d 372 (1948).

The allegations contained in the information of the commission of unlawful acts in violation of certain statutory law and ordinances could be regarded as allegations of fact out of which the reckless disregard and the negligence interpreted as reckless disregard arose which was the basis of the charge and, though they could be characteristic of the charge of manslaughter, they could not have the effect of changing the charge from negligent homicide to manslaughter further because the proof thereof did not and could not increase the penalty beyond that fixed by the negligent homicide statute. State v. Davidson, 78 Idaho 553, 309 P.2d 211 (1957).

The conflict between the involuntary manslaughter statute imposing a sentence of imprisonment not exceeding ten years in the state prison and the negligent homicide statute imposing a sentence of imprisonment not exceeding one year without designating the state prison or the county jail could not be reconciled, and that being so, the negligent homicide statute must govern since it was the later enactment. State v. Davidson, 78 Idaho 553, 309 P.2d 211 (1957).

The information charging accused with failure to stop his motor vehicle at the scene of an accident and to render aid and furnish information after striking and injuring two persons, since it failed to charge knowledge on the part of accused which is an essential element of the offense, defined in former§ 49-1001 (now repealed), was fatally defective, inasmuch as it failed to state facts sufficient to constitute a public offense. State v. Parish, 79 Idaho 75, 310 P.2d 1082 (1957).

Defense of Mistake of Fact.

In prosecution for lewd conduct with minor child under 16 where no evidence was introduced to raise the defense of lack of knowledge on defendant’s part as to the victim’s age, the trial court did not err in refusing to instruct the jury on the defense of mistake of fact. State v. Herr, 97 Idaho 783, 554 P.2d 961 (1976), superseded by statutes as stated in, State v. Tribe, 123 Idaho 721, 852 P.2d 87 (1993).

Intent.

Those entrusted with the care and safekeeping of public funds are held to strict accountability for the safeguarding of same and in compliance with the statutes governing the same. To sustain a conviction in a criminal case, more must be proven in connection with it than will justify recovery in a civil suit. Bonneville County v. Standard Accident Ins. Co., 57 Idaho 657, 67 P.2d 904 (1937); State v. Taylor, 59 Idaho 724, 87 P.2d 454 (1939).

On the question of intent, the jury should be instructed that the intent mentioned in this section is not an intent to commit a crime but is merely the intent to knowingly perform the interdicted act, or by criminal negligence the failure to perform the required act, herein the act of receiving either actually or constructively and the act of knowingly or through criminal negligence not turning over the money involved herein, or knowingly or through criminal negligence failing to see that the money, though only constructively and not actually in appellant’s possession, was turned over to the state treasurer in compliance with the statute. State v. Taylor, 59 Idaho 724, 87 P.2d 454 (1939). Intent of defendant to do what jury found he did was sufficiently established by the commission of the acts and the surrounding circumstances. State v. Johnson, 74 Idaho 269, 261 P.2d 638 (1953); State v. Missenberger, 86 Idaho 321, 386 P.2d 559 (1963).

The word “intent” was construed to mean not an intent to commit a crime but was merely the intent to knowingly perform the interdicted act, or by criminal negligence the failure to perform the required act. State v. Parish, 79 Idaho 75, 310 P.2d 1082 (1957).

Wherever the motive, intention, or belief of an accused is relevant to the issue, it is competent for such person to testify directly upon that point; and if there is any reason to suspect his candor, the jury may make all the allowance called for by his position and demeanor; question of what accused believed and intended is one of the facts to be submitted to and determined by the jury. State v. Hopple, 83 Idaho 55, 357 P.2d 656 (1960).

In prosecution for larceny, the intent of defendant to steal was in issue and defendant should have been permitted to unfold and explain his actions and to state motives which he claimed prompted him. State v. Hopple, 83 Idaho 55, 357 P.2d 656 (1960).

The jury can infer from the facts surrounding the commission of the crime itself the general criminal knowledge and intent requisite for the commission of the crime as charged, the allegation of “knowingly” and “intentionally” having reference to the general criminal knowledge and intent and not to the specific intent and knowledge necessary to commit the crime of forgery. State v. Booton, 85 Idaho 51, 375 P.2d 536 (1962).

Where defendant had acted openly in informing his former employer that he would not return various tools in his possession which belonged to employer until a wage dispute was settled, there was not sufficient evidence from which the jury could have concluded beyond reasonable doubt that defendant had a fraudulent criminal intent; therefore, the trial court erred in refusing to grant defendant’s motion for judgment of acquittal. State v. Gowin, 97 Idaho 766, 554 P.2d 944 (1976).

Where evidence showed that a rancher purchased a mare and released it into his pasture and that another mare which was similar in size and appearance to his own apparently strayed into the pasture, and where the rancher sold the second mare when it became barren, he could not be convicted for grand larceny in the sale of such mare, since the circumstantial evidence adduced was consistent with the rancher’s assertion that sale was a mistake; thus, there was necessarily reasonable doubt as to the element of felonious intent. State v. Anderson, 102 Idaho 464, 631 P.2d 1223 (1981).

The use of “maliciously” to modify the verbs “injures or destroys,” in§ 18-7001 indicates that the prescribed act must be performed with intent to injure or destroy property; there is no implied legislative intent to create criminal liability under§ 18-7001 where the injury to property was an unintended consequence of conduct that may have violated some other statute. State v. Nastoff, 124 Idaho 667, 862 P.2d 1089 (Ct. App. 1993).

Defendant’s belief that he could lawfully hunt with a muzzle loader because when he was previously charged with unlawful possession of a firearm, law enforcement officials who confiscated the other rifles and guns from his home did not take the muzzle loader, did not yield facts establishing the defense of misfortune or accident. The fact that defendant knowingly possessed the muzzle loader, regardless of his good intention, was all that was necessary to sustain a conviction. State v. Dolsby, 143 Idaho 352, 145 P.3d 917 (Ct. App. 2006).

— Instructions.

Where question of criminal intent is raised by facts, it is error for court to refuse a requested instruction that if the jury believes defendant had no felonious intent to steal property at time he took it, he should be acquitted, although he subsequently conceived the intent to appropriate it. State v. Hines, 5 Idaho 789, 51 P. 984 (1898); State v. Riggs, 8 Idaho 630, 70 P. 947 (1902). Where instructions considered as whole include element of intent to commit offense defined in statute, they will be deemed sufficient. State v. Ashby, 40 Idaho 1, 230 P. 1013 (1924).

Where court instructed the jury that it could consider the fact of intoxication in determining whether defendant in passing check possessed the intention to defraud, it was not error for the court to refuse instruction of the defendant that, if the jury found the defendant was so intoxicated that he could not form an intent to defraud, they should acquit the defendant, since jury was properly instructed as to effect of intoxication on intent to defraud. State v. Baldwin, 69 Idaho 459, 208 P.2d 161 (1949).

Refusal of trial court to instruct jury that intent must be proved beyond a reasonable doubt by competent evidence was not error where court in other instructions quoted this section and§ 18-115. State v. Robinson, 71 Idaho 290, 230 P.2d 693 (1951).

An instruction on criminal intent was not necessary in proceeding where defendant was charged with offense of involuntary manslaughter. State v. Scott, 72 Idaho 202, 239 P.2d 258 (1951).

Instruction covering intent as set forth in§ 18-115 was not erroneous merely because court included statement that “every person of sound mind is presumed to intend the natural and probable consequences of his act.” State v. Rutten, 73 Idaho 25, 245 P.2d 778 (1952).

It was not error on the part of the court to give an instruction based upon§ 18-115; it being the usual and customary instruction upon intent and the proof thereof. State v. Gummerson, 79 Idaho 30, 310 P.2d 362 (1957).

Jury Instructions.

Where, in a prosecution for assault with intent to commit rape, defendant defended on the ground that by reason of drunkenness he was unable to entertain the required specific intent to commit an act of sexual intercourse with prosecutrix, the refusal of an instruction requested by defendant was not error where instructions given by the court adequately covered the requested instruction. State v. Gailey, 69 Idaho 146, 204 P.2d 254 (1949).

A jury need not be instructed in the esoteric distinctions between general and specific intent, and where instructions to the jury repeatedly emphasized that before defendant could be convicted he must have acted with the intent to kill victim, the jury instructions, when read and considered as a whole, adequately instructed the jury concerning the elements of murder in the first and second degree and manslaughter, and the distinctions between each including intent. State v. Enno, 119 Idaho 392, 807 P.2d 610 (1991).

Because a jury instruction defined assault and battery pursuant to§§ 18-901 and 18-903 and identified the specific mental states required for commission of the crimes, there was no need for a further instruction based on this section to inform the jury of the required mental elements. State v. Hoffman, 137 Idaho 897, 55 P.3d 890 (Ct. App. 2002).

Liability of Public Officials.

Absence of a unity of act and intent instruction was unlikely to have affected the trial’s outcome, in light of a video recording of defendant’s conversation with the victim, which continued even after the victim informed him that a no-contact order was still in effect State v. Beeks, 159 Idaho 223, 358 P.3d 784 (Ct. App. 2015). Liability of Public Officials.

A specific intent such as is necessary in embezzlement, larceny, making false report with intent to deceive, etc., is not an ingredient of an offense requiring officials to account for public moneys. State v. Taylor, 59 Idaho 724, 87 P.2d 454 (1939).

Liquor Offenses.

In order to sustain charge of unlawful possession of intoxicating liquor, where such possession is merely constructive, it must be shown that liquor was brought upon premises of accused or came into his actual or constructive possession with his knowledge or consent. In re Baugh, 30 Idaho 387, 164 P. 529 (1917); State v. Johnson, 39 Idaho 440, 227 P. 1052 (1924).

Intentional transportation of intoxicating liquor, without legal authority, is unlawful and good intentions or good faith of transporter is immaterial. State v. Sterrett, 35 Idaho 580, 207 P. 1071 (1922).

Mental Condition.

This section and§§ 18-115 and 18-207 are not in conflict, since this section and§ 18-115 do not mandate the existence of a defense based upon insanity, but rather,§ 18-207 reduces the question of mental condition from the status of a formal defense to that of an evidentiary question. Section 18-207 continues to recognize the basic common law premise that only responsible defendants may be convicted. State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985), cert. denied, 476 U.S. 1153, 106 S. Ct. 2260, 90 L. Ed. 2d 704 (1986).

This section prescribes a general requirement for the mental element of a crime; but the legislature may vary this requirement in defining a particular offense, subject to constitutional limits. The legislature has varied the requirement in§ 18-4006(3)(c), and the two sections do not conflict. Haxforth v. State, 117 Idaho 189, 786 P.2d 580 (Ct. App. 1990).

An individual must be found competent to stand trial. In addition, those individuals who are incapable of forming the necessary intent needed for the crime are protected by the mens rea requirements of this section and§§ 18-115 and 18-207. Finally, those “profoundly or severely retarded” individuals who do not fall under the first two protections and are convicted and who are “wholly lacking capacity to appreciate the wrongfulness of their actions” are protected by the sentencing provisions of§ 19-2523. State v. Card, 121 Idaho 425, 825 P.2d 1081 (1991), cert. denied, 506 U.S. 915, 113 S. Ct. 321, 121 L. Ed. 2d 241 (1992).

Negligence.

Instruction defining negligence in language of the statute held not erroneous. State v. Brace, 49 Idaho 580, 290 P. 722 (1930), overruled in part, State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937).

The term “criminal negligence”, as used in this section, means gross negligence, such as amounts to reckless disregard of consequences and the rights of others. State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937).

The legislature did not intend every act done negligently, resulting in what would have been a crime if done intentionally, to be criminal because of the negligence, but intended only to constitute such acts criminal in the event such negligence was such as manifested a reckless disregard of consequences and of the rights of others. State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937). Statute defining involuntary manslaughter as an unlawful killing without malice, in the commission of a lawful act which might produce death, in an unlawful manner (§ 18-4006), must be read and construed with this section, requiring a union or joint operation of act and intent or criminal negligence. State v. McMahan, 57 Idaho 240, 65 P.2d 156 (1937); State v. Hintz, 61 Idaho 411, 102 P.2d 639 (1940).

Criminal negligence may result from an omission to perform a duty, the commission of an act in violation of a duty, or by a combination of both. State v. Patterson, 60 Idaho 67, 88 P.2d 493 (1939).

The term criminal negligence as used in this section does not mean merely the failure to exercise ordinary care or that degree of care which an ordinarily prudent person would exercise. It means gross negligence, such as amounts to a reckless disregard of consequences and of the rights of others. State v. Hintz, 61 Idaho 411, 102 P.2d 639 (1940).

Where truck driven by accused stopped because of engine trouble and accused was unsuccessful in his efforts to move the truck from the highway, accused was not guilty of “criminal negligence”, which would justify a conviction for involuntary manslaughter, when an automobile crashed into the truck, resulting in the death of an occupant of the automobile. State v. Hintz, 61 Idaho 411, 102 P.2d 639 (1940).

Where a charge in prosecution for involuntary manslaughter was given as to manslaughter in the perpetration of an unlawful act, namely, the violation of four traffic statutes, reckless driving, driving while intoxicated, at an excessive speed, and on the wrong side of road, the failure to charge on criminal negligence relative to manslaughter in the commission of a lawful act without due caution and circumspection was not prejudicial error. State v. Salhus, 68 Idaho 75, 189 P.2d 372 (1948).

Vehicular involuntary manslaughter under§ 18-4006 is not subject to the restrictive interpretation of “criminal negligence” in this section, which has been interpreted to mean gross negligence; the legislature was free to create a separate, lesser category of crime for vehicular homicides lacking gross negligence. State v. Curtis, 106 Idaho 483, 680 P.2d 1383 (Ct. App. 1984).

Where a jury specifically found that the defendant was grossly negligent in causing the death of a person in an automobile accident and the jury convicted the defendant of involuntary manslaughter, the defendant failed to show how his right to due process was infringed by his claim that§ 18-4006 was void for vagueness insofar as it proscribed conduct without gross negligence, since the defendant was not charged with, nor was he convicted of, conduct lacking gross negligence. State v. Curtis, 106 Idaho 483, 680 P.2d 1383 (Ct. App. 1984).

Weapons Offenses.

Where the information charging defendant with purchase of firearm by a felon under§ 18-3316 listed the territorial jurisdiction of Idaho and cited to the applicable statute defendant was charged under, it was sufficient for the district court to imply the necessary allegations against defendant, and, further, the inclusion of “purchase” implied a knowing act under this section. State v. Cook, 143 Idaho 323, 144 P.3d 28 (Ct. App. 2006).

Prior Laws.

Former§ 18-115, which comprised Cr. & P. 1864, §§ 2, 3; R.S., R.C., & C.L., § 6315; C.S., § 8088; I.C.A.,§ 17-115; am. S.L. 1970, ch. 31, § 11, p. 61, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Accomplice.

Defendant’s intent to be an accomplice for robbery could be inferred from the fact that he knowingly supplied a loaded gun with the intent that it be used against anyone who tried to prevent the robbery. State v. Mitchell, 146 Idaho 378, 195 P.3d 737 (Ct. App. 2008).

Burglary.

Having in mind the statutes pertaining to the offense under consideration and to proof of intent and those capable of committing crimes, it becomes clear that burglary is a crime malum in se, as differentiated from a crime malum prohibitum. State v. Cronk, 78 Idaho 585, 307 P.2d 1113 (1957).

Evidence.

Where defendant had acted openly in informing his former employer that he would not return various tools in his possession which belonged to employer until a wage dispute was settled, there was not sufficient evidence from which the jury could have concluded beyond a reasonable doubt that defendant had a fraudulent criminal intent; and, therefore, the trial court erred in refusing to grant defendant’s motion for judgment of acquittal. State v. Gowin, 97 Idaho 766, 554 P.2d 944 (1976). Where prosecutrix, age thirteen, met defendant, age thirty-one, at a movie, accompanied him to his home and later traveled with him to Montana, the evidence was sufficient to allow the jury to find the intent to keep or conceal prosecutrix from her parents and to sustain defendant’s conviction for kidnapping in the second degree. State v. Herr, 97 Idaho 783, 554 P.2d 961 (1976), superseded on other grounds by statute as stated in, State v. Tribe, 123 Idaho 721, 852 P.2d 87 (1993).

Direct evidence of intent is not required but can be shown by circumstantial evidence. Defendant’s intent could be proved by his acts and conduct, and where district court found that defendant pocketed the store’s cash with the intent to deprive the store of money, there was substantial evidence to support a finding of intent. State v. Gums, 126 Idaho 930, 894 P.2d 163 (Ct. App. 1995).

Intent may be inferred from the defendant’s conduct or from circumstantial evidence. State v. Reyes, 139 Idaho 502, 80 P.3d 1103 (Ct. App. 2003).

Where defendant picked his wife up and threw her to the floor, causing injury to her arm, the circumstantial evidence was sufficient to charge him with the crime of felony domestic battery; his intent to willfully inflict a traumatic injury to his wife could be inferred from his conduct. State v. Reyes, 139 Idaho 502, 80 P.3d 1103 (Ct. App. 2003).

Instructions on Intent.

Refusal of trial court to instruct jury that intent must be proved beyond a reasonable doubt by competent evidence was not error where court in other instructions quoted§ 18-114. State v. Robinson, 71 Idaho 290, 230 P.2d 693 (1951).

Instruction covering intent, as set forth in§ 18-114, was not erroneous merely because court included statement that “every person of sound mind is presumed to intend the natural and probable consequences of his act.” State v. Rutten, 73 Idaho 25, 245 P.2d 778 (1952).

In a prosecution for burglary in the first degree, it was error for the court to refuse to give the following requested instruction: “An act committed or an omission made under an ignorance or mistake of fact which disproves any criminal intent is not a crime.” State v. Cronk, 78 Idaho 585, 307 P.2d 1113 (1957).

It was not error on the part of the court to give an instruction based upon§ 18-114, it being the usual and customary instruction upon intent and the proof thereof. State v. Gummerson, 79 Idaho 30, 310 P.2d 362 (1957).

A jury need not be instructed in the esoteric distinctions between general and specific intent, and where instructions to the jury repeatedly emphasized that before defendant could be convicted he must have acted with the intent to kill victim, the jury instructions, when read and considered as a whole, adequately instructed the jury concerning the elements of murder in the first and second degree and manslaughter, and the distinctions between each including intent. State v. Enno, 119 Idaho 392, 807 P.2d 610 (1991).

Intent.

— Generally.

— Jury Question.

Intent of defendant to do what jury found he did is sufficiently established by the commission of the acts and the surrounding circumstances. State v. Johnson, 74 Idaho 269, 261 P.2d 638 (1953). — Jury Question.

The jury can infer, from the facts surrounding the commission of the crime itself, the general criminal knowledge and intent requisite for the commission of the crime as charged: the allegation of “knowingly” and “intentionally” having reference to the general criminal knowledge and intent and not to the specific intent and knowledge necessary to commit the crime of forgery. State v. Booton, 85 Idaho 51, 375 P.2d 536 (1962).

In prosecution for lewd conduct with a minor, trial court did not err in denying defendant’s motion for acquittal at the end of the state’s evidence since, although state’s witnesses testified that defendant was intoxicated on the day in question, the question of whether his intoxication so affected him that he could not have had the necessary intent to commit the offense was for the jury. State v. Gratiot, 104 Idaho 782, 663 P.2d 1084 (1983).

— Rape.

Although the jury found that defendant did not commit rape, there was substantial evidence from which the jury could have found that he intended to commit rape. State v. Bolton, 119 Idaho 846, 810 P.2d 1132 (Ct. App. 1991).

Mental Condition.

This section and§§ 18-114 and 18-207 are not in conflict, since§ 18-114 and this section do not mandate the existence of a defense based upon insanity, but rather,§ 18-207 reduces the question of mental condition from the status of a formal defense to that of an evidentiary question. Section 18-207 continues to recognize the basic common law premise that only responsible defendants may be convicted. State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985), cert. denied, 476 U.S. 1153, 106 S. Ct. 2260, 90 L. Ed. 2d 704 (1986).

An individual must be found competent to stand trial. In addition, those individuals who are incapable of forming the necessary intent needed for the crime are protected by the mens rea requirements of this section and§§ 18-114 and 18-207. Finally, those “profoundly or severely retarded” individuals who do not fall under the first two protections and are convicted and who are “wholly lacking capacity to appreciate the wrongfulness of their actions” are protected by the sentencing provisions of§ 19-2523. State v. Card, 121 Idaho 425, 825 P.2d 1081 (1991), cert. denied, 506 U.S. 915, 113 S. Ct. 321, 121 L. Ed. 2d 241 (1992).

Prior Laws.

Former§ 18-116, which comprised Cr. & P. 1864, § 7; R.S., R.C., & C.L., § 6316; C.S., § 8089; I.C.A.,§ 17-116, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal.

Constitutionality.

This section does not violate the due process clause of the Fourteenth Amendment of the United States Constitution. State v. Ransom, 137 Idaho 560, 50 P.3d 1055 (Ct. App. 2002), overruled on other grounds, State v. Porter, 142 Idaho 371, 128 P.3d 908 (2005).

Degree of Intoxication.

In a murder prosecution it appeared that the defendant must not have been so far intoxicated as would have precluded him from knowing the difference between right and wrong and being able to complete a social pattern. State v. Snowden, 79 Idaho 266, 313 P.2d 706 (1957). Where the defendant presented the defense that he was incapable of forming the necessary intent, an element of the crime of burglary, it was a question for the trier of fact to determine whether defendant’s intoxication or voluntary use of drugs reached that level. State v. Roles, 100 Idaho 12, 592 P.2d 68 (1979).

Intent.

— Generally.

Voluntary consumption of beer with any possible intoxication before shooting by the defendant did not make his act less criminal, but may have been considered negating a particular purpose, motive, or intent. State v. Gomez, 94 Idaho 323, 487 P.2d 686 (1971).

— Issue for Jury.

Question as to whether alleged intoxication affected the defendant so that he could not have the necessary intent to commit offense was for the jury. State v. Johnson, 74 Idaho 269, 261 P.2d 638 (1953).

In prosecution for lewd conduct with a minor, trial court did not err in denying defendant’s motion for acquittal at the end of the state’s evidence since, although state’s witnesses testified that defendant was intoxicated on the day in question, the question of whether his intoxication so affected him that he could not have had the necessary intent to commit the offense was for the jury. State v. Gratiot, 104 Idaho 782, 663 P.2d 1084 (1983).

The issue of intoxication is for the determination of the jury, not for the court in a pretrial ruling, and only the jury could determine what weight to give the allegation that defendant was drunk on the morning of the incident involving the kidnapping and assault of a nine-year-old girl with the intent of committing a lewd and lascivious act. State v. Soto, 121 Idaho 53, 822 P.2d 572 (Ct. App. 1991).

Whether or not the defendant was too intoxicated to have a deliberate and premeditated intent to kill was for the jury to decide on the trial of the case, but could not preclude the binding of defendant over to the district court on preliminary hearing. Carey v. State, 91 Idaho 706, 429 P.2d 836 (1967).

— Instructions.

Where, in a prosecution for assault with intent to commit rape, defendant defended on the ground that by reason of drunkenness he was unable to entertain the required specific intent to commit an act of sexual intercourse with prosecutrix, the refusal of an instruction requested by defendant was not error where instructions given by the court adequately covered the requested instruction. State v. Gailey, 69 Idaho 146, 204 P.2d 254 (1949).

Where court instructed the jury that it could consider the fact of intoxication in determining whether defendant in passing check possessed the intention to defraud, it was not error for the court to refuse instruction of the defendant, that if the jury found the defendant was so intoxicated that he could not form an intent to defraud they should acquit the defendant, since jury was properly instructed as to effect of intoxication on intent to defraud. State v. Baldwin, 69 Idaho 459, 208 P.2d 161 (1949). Where court instructed the jury that the intent to defraud is a necessary element of the crime of forgery, and that existence of that intent must be established by the state beyond a reasonable doubt, it was not error by the court to refuse instruction of the defendant to the effect that in every crime there must be a union of act and intent, since jury had been sufficiently instructed on element of intent in forgery. State v. Baldwin, 69 Idaho 459, 208 P.2d 161 (1949).

Instruction to the effect that in every crime, there must be a union of act and intent, or criminal negligence, is in the language of the statute, and generally should be given. State v. Baldwin, 69 Idaho 459, 208 P.2d 161 (1949).

Refusal to give requested instructions of defendant which emphasized defense that by reason of intoxication he was incapable of forming the specific intent to commit burglary for which he was charged was not error where court’s instruction was substantially in the language of the former section. State v. Rutten, 73 Idaho 25, 245 P.2d 778 (1952).

Rape, performed by overcoming the resistance of the victim by force or violence, is not a specific intent crime, thus defendant was not entitled to jury instruction that voluntary intoxication may negate an element of specific intent. State v. Lopez, 126 Idaho 831, 892 P.2d 898 (Ct. App. 1995).

— Specific Intent.

Where the evidence at trial demonstrated that defendant had the ability to carry on a conversation with a police officer, to make a telephone call, to create an excuse for returning to the wrecker, and to drive the truck for some 25 miles at an extreme speed, a reasonable juror could find that defendant was not so intoxicated that he was unable to form the specific intent necessary to commit the crimes. State v. Tucker, 123 Idaho 374, 848 P.2d 432 (Ct. App. 1993).

Instructions to Jury.

In prosecution for assault with intent to commit rape, court did not err in failing to give instruction that jury might consider intoxication in determining intent, where such instruction was not requested, although such instruction if given would have been proper. State v. Smailes, 51 Idaho 321, 5 P.2d 540 (1931).

Where evidence introduced by defendant tended to show that he has used intoxicating liquor over a considerable period of time and also used it to some extent within a short time before the offense was committed, an instruction was proper to point out a distinction between a state of ordinary drunkenness and alcoholic insanity. State v. Clokey, 83 Idaho 322, 364 P.2d 159 (1961).

Where, in prosecution for second degree murder and aggravated battery, the jury instructions required the jury to consider whether the defendant had become so intoxicated at the time of the shootings that he could not act with malice aforethought, the trial judge did not err in refusing to give further instructions concerning the effect of intoxication. State v. Hall, 111 Idaho 827, 727 P.2d 1255 (Ct. App. 1986).

Although the trial court gave an instruction essentially stating the content of this section, and defendant argued that the lengthier instructions approved in State v. Hall, 111 Idaho 827, 727 P.2d 1255 (Ct. App. 1986), should have been given, the intoxication instruction given adequately stated the law. State v. Enno, 119 Idaho 392, 807 P.2d 610 (1991).

Mitigating Circumstances.

Murder.

While the ingestion of drugs or alcohol by a defendant prior to the murder is not sufficient in itself to raise a defense to a first-degree murder charge, any arguable impact of such substance abuse is a proper consideration in mitigation of punishment upon sentencing. State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981). Murder.

Voluntary intoxication is no excuse for the commission of a felonious homicide, but it may be considered in determining existence or nonexistence of malice aforethought, which distinguishes “murder” from “voluntary manslaughter.” State v. Sprouse, 63 Idaho 166, 118 P.2d 378 (1941).

Evidence, that accused and deceased were personal friends, but drank intoxicating liquors in sufficient quantities to cause them to fight over the ownership of a part of a bottle of beer, so that the accused, in the sudden quarrel and heat of passion, shot and killed the deceased, was sufficient to sustain a conviction for manslaughter. State v. Sprouse, 63 Idaho 166, 118 P.2d 378 (1941).

In murder prosecution, voluntary intoxication affects intent but does not render the homicide excusable. State v. Miller, 65 Idaho 756, 154 P.2d 147 (1944).

Purpose.

This section plainly does not permit those who commit crimes while voluntarily intoxicated to avoid culpability because of a diminished mental capacity. State v. Kelly, 158 Idaho 862, 353 P.3d 1096 (Ct. App. 2015).

State of Mind.

An act is not made less criminal because an individual is intoxicated when committing the act. State v. Dragoman, 130 Idaho 537, 944 P.2d 134 (Ct. App. 1997).

Because intent is an element of the crime of kidnapping in the second degree, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the intent with which the accused committed the act. State v. Dragoman, 130 Idaho 537, 944 P.2d 134 (Ct. App. 1997).

In a prosecution of defendant for voluntary manslaughter, the trial court did not abuse its discretion in determining that defendant was not entitled to expert testimony to show the effect of alcohol on defendant’s mental state at the time of the offense. State v. Ransom, 137 Idaho 560, 50 P.3d 1055 (Ct. App. 2002), overruled on other grounds, State v. Porter, 142 Idaho 371, 128 P.3d 908 (2005).

Am. Jur. 2d.

ALR.

When intoxication deemed involuntary so as to constitute a defense to criminal charge. 73 A.L.R.3d 195.

Adequacy of defense counsel’s representation of criminal client-conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness. 78 A.L.R.5th 197. Adequacy of defense counsel’s representation of criminal client-pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness. 79 A.L.R.5th 419.

Prior Laws.

Former§ 18-201, which comprised Cr. & P. 1864, §§ 4, 6, 8, 9; R.S., R.C., & C.L., § 6330; C.S., § 8090; I.C.A.,§ 17-201; S.L. 1970, ch. 31, § 12, p. 61, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-201, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 14 of S.L. 1972, ch. 336 declared an emergency and provided that the act should take effect on and after April 1, 1972.

Burglary.

In a prosecution for burglary in the first degree, it was error for the court to refuse to give the following requested instruction: “An act committed or an omission made under an ignorance or mistake of fact which disproves any criminal intent is not a crime.” State v. Cronk, 78 Idaho 585, 307 P.2d 1113 (1957).

Where the defendant presented the defense that he was incapable of forming the necessary intent, an element of the crime of burglary, it was a question for the trier of fact to determine whether defendant’s intoxication or voluntary use of drugs reached that level. State v. Roles, 100 Idaho 12, 592 P.2d 68 (1979).

Culpable Negligence.

The reference to “culpable negligence” in this section is simply a reiteration of the excusable homicide standard under§ 18-4012. It does not preclude imposition of criminal responsibility for negligence under§ 18-4006. Haxforth v. State, 117 Idaho 189, 786 P.2d 580 (Ct. App. 1990).

Excusable Homicide.

The definition of excusable homicide in§ 18-4012 is not inconsistent with involuntary manslaughter as defined in§ 18-4006. State v. Long, 91 Idaho 436, 423 P.2d 858 (1967).

Ignorance of Fact.

To be guilty of resisting officer in the discharge of his duty, the person making the resistance must have had knowledge that person resisted was an officer and that he was engaged in the discharge of, or attempting to discharge, an official duty. State v. Winter, 24 Idaho 749, 135 P. 739 (1913).

Insanity.

Where defense of insanity is raised in prosecution for murder, the burden is on defendant to create a reasonable doubt as to his responsibility at time of homicide. State v. Shuff, 9 Idaho 115, 72 P. 664 (1903).

Instruction that to establish the a defense of insanity it must be “clearly proven” that accused was insane is erroneous. State v. Wetter, 11 Idaho 433, 83 P. 341 (1905).

In a murder trial, an instruction that the law presumes mental capacity and responsibility, unless the fact is proved otherwise by a preponderance of evidence, was erroneous, as defendant has only the burden of creating a reasonable doubt as to his mental capacity at the time of the commission of the offense. State v. Calkins, 63 Idaho 314, 120 P.2d 253 (1941).

In a murder trial, an erroneous instruction placing on the defendant the burden of proving insanity by a preponderance of the evidence was prejudicial when defendant’s evidence might have been sufficient to raise a reasonable doubt as to his sanity, but was insufficient to prove insanity, by a preponderance of the evidence, and other instructions correctly stating the law did not render this erroneous instruction harmless. State v. Calkins, 63 Idaho 314, 120 P.2d 253 (1941).

Instructions.

Refusal of defendant’s requested instruction concerning criminal responsibility of one committing offense without being conscious thereof was not error, in prosecution for homicide, where court not only instructed the jury in the language of the statute but fully instructed regarding standard of accountability and that nothing be presumed or taken by implication against the defendant. State v. Gish, 87 Idaho 341, 393 P.2d 342 (1964).

In a murder prosecution where defendant alleged that he had been coerced into aiding the real murderer in disposing of the victim’s remains, an instruction that he would have been a principal, although the word principal was not used, if he was present at and participated in assault on victim was not error where instruction was given that coercion could relieve defendant of criminal responsibility. State v. Dillon, 93 Idaho 698, 471 P.2d 553 (1970), cert. denied, 401 U.S. 942, 91 S. Ct. 947, 28 L. Ed. 2d 223 (1971).

Trial court did not err when it denied defendant’s request to instruct the jury on the statutory defense of ignorance. The given jury instructions at trial adequately covered defendant’s requested instruction, having instructed the jury that it was necessary to determine whether defendant knowingly possessed the drugs, which required the jury to specifically reject defendant’s ignorance defense. State v. Heiner, 163 Idaho 99, 408 P.3d 97 (Ct. App. 2017).

Misdemeanor Vehicular Manslaughter.

In a prosecution for misdemeanor vehicular manslaughter, the state must prove a culpable mental state amounting to at least simple negligence. State v. McNair, 141 Idaho 263, 108 P.3d 410 (Ct. App. 2005).

Misfortune or Accident.

Defendant’s belief that he could lawfully hunt with a muzzle loader because, when he was previously charged with unlawful possession of a firearm, law enforcement officials who confiscated the other rifles and guns from his home did not take the muzzle loader, did not yield facts establishing the defense of misfortune or accident. The fact that defendant knowingly possessed the muzzle loader, regardless of his good intention, was all that was necessary to sustain a conviction. State v. Dolsby, 143 Idaho 352, 145 P.3d 917 (Ct. App. 2006).

Because a video recording made clear that defendant’s contact continued after he was informed that a no-contact order was still in place, defendant was not entitled to an instruction on accident or misfortune. State v. Beeks, 159 Idaho 223, 358 P.3d 784 (Ct. App. 2015).

Mistake of Fact.

In prosecution for lewd conduct with a minor child under 16 where no evidence was introduced to raise the defense of lack of knowledge on defendant’s part as to the victim’s age, the trial court did not err in refusing to instruct the jury on the defense of mistake of fact. State v. Herr, 97 Idaho 783, 554 P.2d 961 (1976), superseded on other grounds by statute as stated in, State v. Tribe, 123 Idaho 721, 852 P.2d 87 (1993).

A reasonable mistake of fact will be a defense only for those persons charged with an offense that has criminal intent as an ingredient of the crime. State v. Stiffler, 114 Idaho 935, 763 P.2d 308 (Ct. App. 1988), aff’d, 117 Idaho 405, 788 P.2d 220 (1990).

The legislature, in codifying the crime of sexual battery of a minor child 16 or 17 years of age,§ 18-1508A, intended to incorporate the immemorial tradition of the common law that a mistake of fact as to the complainant’s age is no defense. State v. Oar, 129 Idaho 337, 924 P.2d 599 (1996). Defendant’s mistaken belief that the cotton ball in his possession no longer contained any methamphetamine residue did not absolve him of guilt where he earlier knew of and controlled that same methamphetamine residue as part of a larger quantity that he was using. State v. Armstrong, 142 Idaho 62, 122 P.3d 321 (Ct. App. 2005).

Threat or Menace.

A “threat” is a declaration of an intention to injure another by the commission of an unlawful act; a “menace” is synonymous with “threat.” State v. Eastman, 122 Idaho 87, 831 P.2d 555 (1992).

Where defendant was arrested for DUI and driving without privileges where she attempted to move a vehicle involved in an accident, and in which she had been a passenger, out of the intersection, there was no evidence to support an instruction on “threats or menaces”; an assertion of justification or evidence of justification does not support a requested instruction of “threat or menace.” State v. Eastman, 122 Idaho 87, 831 P.2d 555 (1992).

Where a defendant picked up a package at the airport that the police knew contained methamphetamine, action of the police officer, who did not tell defendant that he was a police officer, in telling defendant that he knew what was inside the package and would call police unless she gave him a “pinch” of it, such substance was not delivered under duress for defendant failed to show how her life would be endangered if she had refused to deliver the illegal substance. State v. Kopsa, 126 Idaho 512, 887 P.2d 57 (Ct. App. 1994).

Because defendant convicted of delivery of controlled substance did not show he sold cocaine under any type of threat, nor that he reasonably believed his life would be endangered if he refused to participate in the transaction, trial court’s denial of requested instruction on the affirmative defense of duress was affirmed. State v. Canelo, 129 Idaho 386, 924 P.2d 1230 (Ct. App. 1996).

The trial evidence did not support a threats and menaces instruction to the jury where the only evidence of threats was testimony that the accomplice warned defendant, both before and after the murder, that if defendant told anyone about the incident, he would suffer bodily injury. These were threats to dissuade defendant from disclosure of the crimes, but there was no evidence of any threat to induce defendant’s participation in the offenses. State v. Eby, 136 Idaho 534, 37 P.3d 625 (Ct. App. 2001).

Prior Laws.

Former§ 18-202, which comprised R.S., R.C., & C.L., § 6331; C.S., § 8091; I.C.A.,§ 17-202, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-202, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Child Custody Interference.

Where the second and third elements of the crime of child custody interference, the keeping or withholding of the child and the deprivation of the custodial rights, occurred in Idaho, under this section and§§ 19-301 and 19-302, the state had jurisdiction over the crime. State v. Doyle, 121 Idaho 911, 828 P.2d 1316 (1992).

Because the withholding of the child from the custodial parent in violation of a court order is no different than the withholding of support from a family in violation of a court order, the keeping or withholding occurs, for purposes of jurisdiction, where the defendant is required to return the child to the custodial parent. State v. Doyle, 121 Idaho 911, 828 P.2d 1316 (1992).

Fraudulent Draft Honored Outside of State.

Where defendant, as agent for foreign corporation, executed a fictitious contract of sale of wool and, on the basis of such contract, defendant’s sight drafts were honored by the corporation, defendant was properly tried for obtaining money under false pretenses in the county where the sight draft was drawn and paid and from which such contract was sent. State v. Dunn, 60 Idaho 568, 94 P.2d 779 (1939).

Personal Jurisdiction.

District court properly acquired personal jurisdiction over the defendant when the defendant appeared at the initial court setting on a complaint or arraignment on the indictment; thus, the district court acquired personal jurisdiction over defendant at the initial arraignment, and his physical absence from Idaho did not deprive the state of personal jurisdiction over his person. State v. Rogers, 140 Idaho 223, 91 P.3d 1127 (2004).

When the court reversed defendant’s conviction for lewd and lascivious conduct with a minor under sixteen and vacated the restitution order, it lacked personal jurisdiction to order the Idaho industrial commission to refund restitution payments defendant had already made. The industrial commission was not a party to the action, and its attorneys never received notice of defendant’s motion for a restitution refund. Hooper v. State, 150 Idaho 497, 248 P.3d 748 (2011).

Prosecutable Act.

Although the term “prosecutable act” contained in§ 19-301 has not been defined by the legislature or by the Idaho supreme court, it would appear that, to be consistent with this section, “prosecutable act” means any essential element of the crime. State v. Doyle, 121 Idaho 911, 828 P.2d 1316 (1992).

Purpose of Section.

By this section legislature intended to punish any person who should commit any portion of crime within state to same extent and manner as though all acts which constitute crime had been committed in state. State v. Sheehan, 33 Idaho 553, 196 P. 532 (1921).

Result of Crime.

Given the language in this section and§ 19-301, requiring that the crime must occur “in whole or in part” within the state, or that some “prosecutable act” must have been committed within the state, the language in§ 19-302 must be interpreted to mean that the result of the crime must be an essential element of the offense before the result can be construed to have been “consummated” within Idaho. State v. Doyle, 121 Idaho 911, 828 P.2d 1316 (1992).

Subject Matter Jurisdiction.

An Idaho court will have subject matter jurisdiction over a crime if any essential element of the crime, including the result, occurs within Idaho. State v. Doyle, 121 Idaho 911, 828 P.2d 1316 (1992).

Under this section, the legislature intends to punish any person who should commit any portion of a crime within the state to the same extent and in the same manner as though all of the acts which constitute the crime had been committed in the state. State v. Villafuerte, 160 Idaho 377, 373 P.3d 695 (2016).

Prior Laws.

Former§ 18-203, which comprised R.S., R.C., & C.L., § 6341; C.S., § 8092; I.C.A.,§ 17-203, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-203, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Cross References.

Distinction between accessories before fact and principals abolished,§ 19-1430.

Prior Laws.

Former§ 18-204, which comprised Cr. & P. 1864, §§ 5, 7, 10; R.S., R.C., & C.L., § 6342; C.S., § 8093; I.C.A.,§ 17-204, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-204, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Abolition of Distinction.

Accomplice.

Evidence sustained verdict of guilty on charge of burglary, if evidence showed defendant was connected with burglary, as it was not necessary for state to prove that defendant himself entered building, since distinction between accessories and principals has been abolished by legislature. State v. Kleier, 69 Idaho 278, 206 P.2d 513 (1949). Accomplice.

An accomplice is one of several principals in a criminal undertaking. State v. Gonzales, 92 Idaho 152, 438 P.2d 897 (1968); State v. Wilson, 93 Idaho 194, 457 P.2d 433 (1969).

The fact that a witness had an altercation with the allegedly murdered decedent shortly before he was shot, then immediately accompanied the defendant to his home to procure a rifle, accompanied the defendant back to the scene of the altercation, and sat in the car while the defendant shot the decedent, after which the witness left the scene with the defendant, raised an issue as whether such witness was an accomplice. State v. Gonzales, 92 Idaho 152, 438 P.2d 897 (1968).

Failure to disclose the occurrence of a crime to authorities is not sufficient to constitute aiding and abetting. Rather, failure to report a felony makes a person guilty only as an accessory, not as an accomplice. Rome v. State, 164 Idaho 407, 431 P.3d 242 (2018).

Aid and Abet.

To “aid and abet” means to assist, facilitate, promote, encourage, counsel, solicit or invite the commission of a crime. Howard v. Felton, 85 Idaho 286, 379 P.2d 414 (1963).

A person who participates in criminal activity only as an agent of law enforcement lacks the requisite criminal intent. State v. Perez, 99 Idaho 181, 579 P.2d 127 (1978).

Where evidence showed that informant and undercover officer who was wearing a hidden microphone, followed by another officer in an unmarked vehicle who tape recorded the conversations made in undercover officer’s presence, picked up defendant who directed them to a certain house which defendant entered and from which he returned accompanied by a friend who sold the officer a white envelope containing a substance that was later identified as PCP, such evidence was more than sufficient to convict defendant of aiding and abetting in the delivery of a controlled substance. State v. Sharp, 104 Idaho 691, 662 P.2d 1135 (1983).

Aiding and abetting requires some proof that the accused either participated in or assisted, encouraged, solicited, or counseled the crime; mere knowledge of a crime and assent to or acquiescence in its commission does not give rise to accomplice liability and failure to disclose the occurrence of a crime to authorities is not sufficient to constitute aiding and abetting. State v. Randles, 117 Idaho 344, 787 P.2d 1152 (1990).

Where there was sufficient evidence to show that the defendant had the requisite intent to kill a human being and then acted in furtherance of that intent by encouraging another to carry through with the plan, convictions on two counts of attempted murder were affirmed. State v. Fabeny, 132 Idaho 917, 980 P.2d 581 (Ct. App. 1999).

Judgment of acquittal was reversed where the jury could reasonably have concluded that defendant intended to promote or facilitate the commission of the offense by his accomplice when defendant, failing to shoot the victim on his own and undergoing a beating at the victim’s hands, asked for help from his accomplice, whom he knew to be armed with a pistol. State v. Gonzalez, 134 Idaho 907, 12 P.3d 382 (Ct. App. 2000).

Evidence was sufficient to support jury’s verdict of guilty of aiding and abetting trafficking in cocaine and aiding and abetting failure to affix illegal drug tax stamps where defendant arranged for the sale of cocaine to a confidential informant and accompanied him to the drug dealer’s residence where the sale took place. State v. Romero-Garcia, 139 Idaho 199, 75 P.3d 1209 (Ct. App. 2003).

Defendant was properly convicted of aiding and abetting in the commission of a burglary where the state’s witness testified that he had seen a man and woman taking items from storage containers behind a pawnshop, and police found stolen items from the pawnshop in the residence defendant shared with her husband and in the trunk of their car. State v. Tarrant-Folsom, 140 Idaho 556, 96 P.3d 657 (Ct. App. 2004). Defendant’s conviction for aggravated assault was upheld, even though his lone kick to a victim’s backside while the victim was being bound with duct tape was not likely to produce great bodily harm, because the actions of his group as a whole were sufficient for a reasonable jury to find a likelihood of great bodily harm; there is no legal distinction between the person who directly commits a criminal act and a person who aids and abets in its commission. State v. Horejs, 143 Idaho 260, 141 P.3d 1129 (Ct. App. 2006).

Evidence was sufficient to convict defendant of first-degree murder under an aiding and abetting theory, because there was evidence that: (1) defendant and his accomplice were in the house lying in wait for the victim; (2) two knives were used in the murder, both of which potentially caused the victim’s death; (3) video footage taken immediately before and after the murder showed defendant’s preparation for and involvement in the murder. It was not necessary for the state to prove that defendant inflicted the fatal wound. State v. Adamcik, 152 Idaho 445, 272 P.3d 417, cert. denied, 508 U.S. 839, 133 S. Ct. 141, 184 L. Ed. 2d 68 (2012).

Application.

One who aids, abets, or encourages another in transportation of intoxicating liquor into state is as guilty as principal, whether or not he was actually present and participating in act. State v. Sheehan, 33 Idaho 103, 190 P. 71 (1920).

Where party remained outside building as a look-out while accomplice entered with intention of committing larceny in furtherance of a common purpose, he was guilty of burglary as a principal, though he himself made no entry. State v. Bull, 47 Idaho 336, 276 P. 528 (1929).

Continuous Course of Conduct.

Where in a prosecution of defendant for both conspiracy to deliver a controlled substance and for aiding and abetting the delivery of a controlled substance, the evidence showed that everything the defendant did to aid and abet the delivery of the cocaine he did also in furtherance of the conspiracy; thus his conduct was one continuous “act,” and he could be convicted and sentenced of only one crime, not both. State v. Gallatin, 106 Idaho 564, 682 P.2d 105 (Ct. App. 1984).

Evidence.

Where evidence showed that defendants charged with robbery, attempted extortion from parties occupying a hotel room, attempted to get into the room, and followed up by taking money by force, jury was justified in assuming that defendants acted in concert. State v. Robinson, 71 Idaho 290, 230 P.2d 693 (1951).

Where defendant was connected with burglary, it was immaterial whether he himself actually entered premises burglarized in order to be convicted as a principal for first degree burglary. State v. Hewitt, 73 Idaho 452, 254 P.2d 677 (1953).

In order to find a defendant guilty of aiding and abetting the failure to affix the required drug tax stamps, a jury is required to find that: (1) defendant knowingly participated in or assisted the drug dealer in the possession or distribution of cocaine; and (2) the necessary drug tax stamps had not been affixed. State v. Romero-Garcia, 139 Idaho 199, 75 P.3d 1209 (Ct. App. 2003). Evidence was sufficient to support defendant’s convictions as an accomplice to aggravated battery, robbery, and burglary. Even though defendant did not actively participate in the actual robbery, he knowingly supplied a loaded gun for use in the robbery, knew about the money that the victim was saving, and exerted influence over his codefendants to perform the deed. State v. Mitchell, 146 Idaho 378, 195 P.3d 737 (Ct. App. 2008).

Evidence supported defendant’s conviction for aiding and abetting trafficking in methamphetamine, because the state provided evidence that the principal represented to an undercover officer that the principal was selling 28 grams or more of methamphetamine to the officer, defendant admitted in an interview to being present to offer protection to the principal in both transactions in which the principal sold methamphetamine to the officer, and defendant was paid by the principal in previously marked bills. State v. Wilson, — Idaho —, 438 P.3d 302 (2019).

Instructions.

Where evidence showed that defendant was connected with burglary, court did not err in instructing jury in language of statute that distinction between accessories and principals had been abolished. State v. Kleier, 69 Idaho 278, 206 P.2d 513 (1949).

Jury was properly instructed during defendant’s trial for aiding and abetting in two first-degree murders, where it was told that the state had to prove that defendant shared the shooter’s mental state by requiring defendant to have shared the criminal intent of the shooter, such that defendant and the shooter had a community of purpose in the unlawful undertaking. State v. Reid, 151 Idaho 80, 253 P.3d 754 (Ct. App. 2011).

Venue.

Evidence as to acts of appellant in aiding the loading of a steer into a truck after it had been killed, dressing the steer out, and transporting it to the South Fork Lodge, with intent to deprive the owner of his property, was sufficient to establish appellant as a principal; and, as principal, he could be tried in either the county in which the steer was stolen or that in which the Lodge was located. State v. Bassett, 86 Idaho 277, 385 P.2d 246 (1963).

In a murder prosecution where defendant alleged that he had been coerced into aiding the real murderer in disposing of the victim’s remains, an instruction that he would have been a principal, although the word principal was not used, if he had been present at and participated in assault on victim was not error where instruction was given that coercion could relieve defendant of criminal responsibility. State v. Dillon, 93 Idaho 698, 471 P.2d 553 (1970), cert. denied, 401 U.S. 942, 91 S. Ct. 947, 28 L. Ed. 2d 223 (1971).

Cross References.

Accessories to misdemeanor,§ 18-304.

Prior Laws.

Former§ 18-205, which comprised Cr. & P. 1864, § 11; R.S., R.C., & C.L., § 6343; C.S., § 8094; I.C.A.,§ 17-205, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-205, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Application.

Application of this section is not limited to an escapee scenario. A person may be convicted for harboring and protecting a convicted felon even if the felony was committed at some point in the past. State v. Lampien, 148 Idaho 367, 223 P.3d 750 (2009).

Failure to disclose the occurrence of a crime to authorities is not sufficient to constitute aiding and abetting. Rather, failure to report a felony makes a person guilty only as an accessory, not as an accomplice. Rome v. State, 164 Idaho 407, 431 P.3d 242 (2018).

Elements.

Evidence Sufficient.

To be convicted under this section, a person must “harbor and protect” a felon; both the “protection” and the “harboring” elements must be satisfied. State v. Lampien, 148 Idaho 367, 223 P.3d 750 (2009). Evidence Sufficient.

Evidence was sufficient to sustain defendant’s conviction for being an accessory after the fact to malicious injury to property because defendant, having knowledge that a felony had been committed, willfully withheld or concealed it from the detective. Defendant specifically told the detective that neither she nor any of the other three individuals she was with on the night in question had anything to do with any of the charged events. State v. Hauser, 143 Idaho 603, 150 P.3d 296 (Ct. App. 2006).

Knowledge Requirement.

The appropriate interpretation of this section regarding an accessory who harbored or protected a person charged with, or convicted of, a felony was that the knowledge requirement was met if the person had notice that the accused was charged with, or convicted of, a felony. State v. Teasley, 138 Idaho 113, 58 P.3d 97 (Ct. App. 2002).

Sentence.

Where defendant, who was with three others, allowed decedent to be beaten, humiliated and murdered; fired shots into the dead body; after a night of rest, returned to scene of the slaying and burned the body in a shallow grave; and never reported the crime to the authorities, five-year fixed sentence for conviction of accessory to murder was not cruel and unusual punishment. State v. Toney, 130 Idaho 858, 949 P.2d 1065 (Ct. App. 1997).

When four officers arrived at defendant’s apartment seeking her husband, who was wanted for felony probation violations, three officers were injured in the attempt to take the husband into custody; defendant pled guilty to harboring and protecting a felon in violation of this section. The officers were victims of defendant’s crime of harboring and protecting her husband. State v. Lampien, 148 Idaho 367, 223 P.3d 750 (2009).

Prior Laws.

Former§ 18-206, which comprised Cr. & P. 1864, § 11; R.S., R.C., & C.L., § 6344; C.S., § 8095; I.C.A.,§ 17-206, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-206, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Sentences.

In an appeal from convictions of grand theft under§ 18-2403(4) and acting as an accessory to grand theft pursuant to§§ 18-205 and 18-2403(4), the trial court’s imposition of a four-year indeterminate sentence for the first count, under§ 18-2408, and a concurrent two-year indeterminate sentence for the second count, pursuant to this section, was not unduly harsh where, although the defendant was only 18 years old, he had a record consisting of minor traffic violations and a possession of marijuana charge, and where the presentence report showed that the defendant was involved with marijuana and cocaine, that the defendant had sought to obtain $500 from the rightful owners of stolen snowmobile for information leading to its return, had offered to sell a stolen snowmobile to a neighbor, and had engaged in a number of other criminal activities. State v. Mason, 107 Idaho 706, 692 P.2d 350 (1984).

Cross References.

Consideration of mental illness in sentencing,§ 19-2523.

Examination of defendant for evidence of mental condition,§ 19-2522.

Prior Laws.

Former§ 18-207, which comprised I.C.,§ 18-207, as added by S.L. 1972, ch. 336, § 1, p. 844, was repealed by S.L. 1982, ch. 368, § 1, effective July 1, 1982.

Burden of Proving Intent.

This section does not relieve the state of the burden of proving every fact necessary to constitute the crime charged beyond a reasonable doubt; it does not operate as a presumption that no defendant can possess such lack of mental capacity as to be unable to formulate criminal intent. State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985), cert. denied, 476 U.S. 1153, 106 S. Ct. 2260, 90 L. Ed. 2d 704 (1986).

Although eliminating affirmative defenses based upon the defendant’s mental condition, this section does not relieve the state of its burden of proving beyond a reasonable doubt every fact necessary to constitute the crime charged; in every crime or public offense there still must exist either a union of act and intent, or criminal negligence. State v. McDougall, 113 Idaho 900, 749 P.2d 1025 (Ct. App. 1988).

This section does not remove the element of criminal responsibility for the crime. The prosecution is still required to prove beyond a reasonable doubt that a defendant had the mental capacity to form the necessary intent. State v. Card, 121 Idaho 425, 825 P.2d 1081 (1991), cert. denied, 506 U.S. 915, 113 S. Ct. 321, 121 L. Ed. 2d 241 (1992).

Constitutionality.

While a defendant’s mental condition has been expressly eliminated as a defense under subsection (1) of this section, the defendant may still use expert evidence on the issue of the defendant’s state of mind where it is an element of the offense and such evidence is subject to the rules of evidence. State v. Dragoman, 130 Idaho 537, 944 P.2d 134 (Ct. App. 1997). Constitutionality.

This section, which has eliminated mental condition as a defense, but which does not prevent a defendant from presenting relevant evidence on the issues of mens rea or any state of mind which is an element of the offense, did not deprive the defendant of his federal constitutional rights under the eighth and fourteenth amendments, where the defendant did not establish either that he was denied an opportunity to present evidence of mental condition in an attempt to negate criminal intent or that he offered such evidence and had it ruled inadmissible by the trial court. Potter v. State, 114 Idaho 612, 759 P.2d 903 (Ct. App. 1988).

Due process as expressed in the Constitutions of the United States and of Idaho does not mandate an insanity defense and this section does not deprive a defendant of his due process rights under the state or federal Constitution. State v. Searcy, 118 Idaho 632, 798 P.2d 914 (1990).

A statement by defense counsel asserting the impossibility of a psychiatrist offering an opinion as to defendant’s insanity without a legal standard to work with did not suffice to create a justiciable issue as to whether the abolition of the insanity defense deprived the defendant’s due process rights; therefore, the trial court properly refused to render a declaratory judgment on the issue. State v. Rhoades, 119 Idaho 594, 809 P.2d 455 (1991).

The validity of this section eliminating mental condition as a defense in criminal proceedings is now established in Idaho case law. State v. Odiaga, 125 Idaho 384, 871 P.2d 801, cert. denied, 513 U.S. 952, 115 S. Ct. 369, 130 L. Ed. 2d 321 (1994).

Where defendant argued that the supreme court should reconsider its prior rulings on the constitutionality of this section but offered no new basis upon which to consider the issue, the court was guided by stare decisis to adhere to its earlier opinions. State v. Gomez, 126 Idaho 83, 878 P.2d 782, cert. denied, 513 U.S. 1005, 115 S. Ct. 522, 130 L. Ed. 2d 427 (1994).

The repeal of the insanity defense does not violate the due process clauses of the Idaho or United States Constitutions. State v. Moore, 126 Idaho 208, 880 P.2d 238 (1994).

Defendant’s Fifth Amendment rights were not violated when he was ordered to undergo an examination by a state expert in an attempted murder case because defendant had indicated an intent to introduce psychiatric evidence in his defense; moreover, Idaho R. Evid. 503 was not violated, either since the communications were not confidential and his defense was based on a mental condition. State v. Santistevan, 143 Idaho 527, 148 P.3d 1273 (Ct. App. 2006).

The choice between not presenting mental health evidence or presenting mental health evidence at a capital sentencing hearing but waiving Fifth Amendment privileges, as presented by subsection (4)(c) of this section, is constitutional. State v. Payne, 146 Idaho 548, 199 P.3d 123 (2008).

Idaho’s abolition of the insanity defense did not violate defendant’s due process rights; evidence of mental illness is expressly allowed and can be used to rebut the element of intent. State v. Delling, 152 Idaho 122, 267 P.3d 709 (2011), cert. denied, 568 U.S. 1038, 133 S. Ct. 504, 184 L. Ed. 2d 480 (2012).

Construction.

This section reduces the question of mental condition from the status of a formal defense to that of an evidentiary question. State v. Delling, 152 Idaho 122, 267 P.3d 709 (2011), cert. denied, 568 U.S. 1038, 133 S. Ct. 504, 184 L. Ed. 2d 480 (2012). The central purpose of subsection (4) of this section is to provide limitations on the right to introduce mental health evidence in a criminal case to those circumstances when that evidence can be fully subjected to the adversarial process. State v. Samuel, — Idaho —, 452 P.3d 768 (2019).

Subsection (4) does not limit the admission of either direct or rebuttal expert testimony to elements of the crime. To the contrary, the plain language of the statute makes it clear that it applies to any issue of mental condition in any legal proceeding at which the defendant’s mental health condition may be an issue. State v. Samuel, — Idaho —, 452 P.3d 768 (2019).

Expert Evidence.

This section merely disallows mental condition from providing a complete defense to the crime and may allow the conviction of persons who may be insane by some former insanity test or medical standard, but who nevertheless have the ability to form intent and to control their actions. The statute expressly allows admission of expert evidence on the issues of mens rea or any state of mind which is an element of the crime. State v. Card, 121 Idaho 425, 825 P.2d 1081 (1991), cert. denied, 506 U.S. 915, 113 S. Ct. 321, 121 L. Ed. 2d 241 (1992).

Instructions.

Where jury instructions clearly set out the specific intent required for the crime of robbery, and the jury was instructed that they could find that at the time the alleged crime was committed the defendant was suffering from a mental condition which prevented him from forming the specific intent, the court’s instructions fairly and accurately presented the issue of intent and stated the applicable law correctly. State v. Potter, 109 Idaho 967, 712 P.2d 668 (Ct. App. 1985).

Lacking Capacity.

An individual must be found competent to stand trial. In addition, those individuals who are incapable of forming the necessary intent needed for the crime are protected by the mens rea requirements of this section and§§ 18-114 and 18-115. Finally, those “profoundly or severely retarded” individuals who do not fall under the first two protections and are convicted and who are “wholly lacking capacity to appreciate the wrongfulness of their actions” are protected by the sentencing provisions of§ 19-2523. State v. Card, 121 Idaho 425, 825 P.2d 1081 (1991), cert. denied, 506 U.S. 915, 113 S. Ct. 321, 121 L. Ed. 2d 241 (1992).

Mental Condition as Evidentiary Question.

Sections 18-114, 18-115 and this section are not in conflict, since§§ 18-114 and 18-115 do not mandate the existence of a defense based upon insanity, but rather, this section reduces the question of mental condition from the status of a formal defense to that of an evidentiary question. This section continues to recognize the basic common law premise that only responsible defendants may be convicted. State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985), cert. denied, 476 U.S. 1153, 106 S. Ct. 2260, 90 L. Ed. 2d 704 (1986).

Idaho Crim. R. 16(c)(4) requires that a defendant comply with this section, so that a defendant who plans to offer an expert report on his own mental health must submit to an examination by the state’s expert witness. State v. Samuel, — Idaho —, 452 P.3d 768 (2019).

Psychological Evaluation Not Compelled.

The Fifth Amendment to the United States Constitution andIdaho Const., Art. I, § 13 prohibit compelling a criminal defendant to be a witness against himself or herself. Following the repeal of the insanity defense, no statutory scheme remains through which a psychological evaluation can be compelled without threatening the rights guaranteed under both of these constitutions. State v. Odiaga, 125 Idaho 384, 871 P.2d 801, cert. denied, 513 U.S. 952, 115 S. Ct. 369, 130 L. Ed. 2d 321 (1994).

Sentence.

Under this section, a judge can select either a probation program or a sentence of incarceration for a mentally ill convicted defendant; therefore, where the defendant, who was mentally ill, pled guilty to a charge of lewd conduct with a minor under the age of 16 years, custody in the department of health and welfare was not an option and the judge did not err in sentencing the defendant to the custody of the board of correction. State v. Desjarlais, 110 Idaho 100, 714 P.2d 69 (Ct. App. 1986).

District court did not err by allowing the admission, during the sentencing hearing, of statements defendant made to the state’s psychological experts because this section does not violate the Eighth Amendment and§§ 18-215 and 19-2522 do not limit the admissibility of the statements. By its terms,§ 19-2522 does not limit the consideration of other relevant evidence, and§ 18-215 limits the admissibility only of statements made during examinations pursuant to three specific statutory sections; defendant’s examinations were done pursuant to this section, and which is not within the ambit of§ 18-215. State v. Payne, 146 Idaho 548, 199 P.3d 123 (2008).

Decisions Under Prior Law

Acquittal Denied.

Where the examining psychiatrist’s report stated that defendant could appreciate the wrongfulness of his conduct, but that it was very difficult to judge whether defendant could conform his conduct to the requirements of the law at the time of the murder, the report was insufficient for a finding of insanity and therefore the court’s denial of defendant’s motion for acquittal was proper. State v. Powers, 96 Idaho 833, 537 P.2d 1369 (1975), cert. denied, 423 U.S. 1089, 96 S. Ct. 881, 47 L. Ed. 2d 99 (1976).

Challenge to Confinement.

The appropriate method of challenging the confinement of a person who claimed that he was not receiving care and treatment as required by application to the committing court and not by petition for writ of habeas corpus. Flores v. Lodge, 101 Idaho 533, 617 P.2d 837 (1980).

Equal Protection.

A commitment pursuant to former law that provided for commitment of acquitted defendant did not violate an acquittee’s right to equal protection of the laws in failing to provide a hearing as to the acquittee’s present mental illness or dangerousness at the initial state of commitment, or at the expiration of the acquittee’s hypothetical criminal sentence. Stoneberg v. State, 106 Idaho 519, 681 P.2d 994 (1984).

Time Allowed for Examination.

Where a defendant was given only two days to prepare an examination, the amount of time allowed was insufficient and the defendant’s substantial rights were prejudiced by the court’s denial of a motion for a continuance. State v. Cook, 98 Idaho 686, 571 P.2d 332 (1977).

Idaho Law Review.

Idaho Law Review. — Idaho’s Abolition of the Insanity Defense — An Ineffective, Costly, and Unconstitutional Eradication, Comment. 51 Idaho L. Rev. 575 (2015).

ALR.

Amnesia as Affecting Defendant’s Competency to Stand Trial. 100 A.L.R.6th 535.

Compiler’s Notes.

These sections, which comprised I.C.,§§ 18-208, 18-209, as added by S.L. 1972, ch. 336, § 1, p. 844, were repealed by S.L. 1982, ch. 368, § 1, effective July 1, 1982. For present law, see§§ 18-207, 19-2523.

Prior Laws.

Former§ 18-210, which comprised S.L. 1970, ch. 31, § 4, p. 61, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-210, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Competency to Stand Trial.

The district court did not err in finding the defendant competent to stand trial on the charges of aggravated battery and burglary where, although there may have been a viable issue as to whether the district court correctly found the defendant competent to stand trial and correctly accepted the defendant’s guilty plea, the defendant had waived his right to appeal the district court’s ruling due to his unconditional plea of guilty to aggravated battery in exchange for the dismissal of the burglary charge. State v. Green, 130 Idaho 503, 943 P.2d 929 (1997).

The test to determine whether a criminal defendant is competent to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as factual understanding of the proceedings against him. Stone v. State, 132 Idaho 490, 975 P.2d 223 (Ct. App. 1999).

Where the district court made a credibility assessment of trial counsel, finding her statement that the defendant understood the proceedings to be credible, and where the court also determined that, although it trusted a psychiatrist’s opinion that the defendant suffered from episodic psychosis, it would not accept the doctor’s opinion that the defendant was incompetent at the time of trial because the doctor did not base his opinion on any personal communications with the defendant, nor on any medical evaluations performed during trial, there was no showing of clear error in the court’s finding the defendant competent to stand trial. Stone v. State, 132 Idaho 490, 975 P.2d 223 (Ct. App. 1999). Right to counsel in post-conviction proceedings was not a constitutional right, but a matter left to the discretion of the trial judge; however, Idaho R. Crim. P. 44.2 provides for the mandatory appointment of counsel for post-conviction review after the imposition of the death penalty, and where the district court considered the evidence on defendant’s competency and issued an order finding him competent to waive the assistance of counsel and to proceed pro se, the district court’s decision finding that defendant had the capacity to waive his right to counsel was supported by substantial, competent, although conflicting evidence and accordingly would not be disturbed. State v. Lovelace, 140 Idaho 73, 90 P.3d 298, cert. denied, 543 U.S. 936, 125 S. Ct. 323, 160 L. Ed. 2d 242 (2004).

Where defendant had been found competent to stand trial and that finding of competence was not contested, the trial court was not required to hold a hearing on the issue and where a second evaluation was conducted pursuant to an order signed by the district court, upon the request of newly appointed counsel, the magistrate and the district court properly acted to protect the defendant’s right to a fair trial. State v. Lovelace, 140 Idaho 73, 90 P.3d 298, cert. denied, 543 U.S. 936, 125 S. Ct. 323, 160 L. Ed. 2d 242 (2004).

Where defendant proceeding pro se on two counts of robbery exhibited bizarre behavior during the pretrial and trial process and mentioned a head injury, the district court’s failure to sua sponte order a psychiatric evaluation and conduct a hearing to determine his competence to stand trial under this section was an abuse of discretion. Defendant filed a motion seeking CIA, NSA and Air Force documents; he also claimed that a CIA operative forced him to wear a bomb vest and threatened to kill him if he did not rob the banks. State v. Hawkins, 148 Idaho 774, 229 P.3d 379 (Ct. App. 2009).

Where appellant did not present an expert’s opinion or any admissible evidence to show that he was not competent at the time he pled guilty, he did not demonstrate the existence of a genuine issue of material fact supporting his claim that his attorney was ineffective for failing to request a competency evaluation under this section. Ridgley v. State, 148 Idaho 671, 227 P.3d 925 (2010).

This section is a safeguard, ensuring that mentally incapacitated defendants cannot be convicted of a crime, thus making it impossible for an incapacitated person to be sentenced to prison. State v. Delling, 152 Idaho 122, 267 P.3d 709 (2011), cert. denied, 568 U.S. 1038, 133 S. Ct. 504, 184 L. Ed. 2d 480 (2012).

In a case in which defendant was convicted of three counts of sexual abuse of a vulnerable adult, there was sufficient, competent, although conflicting, evidence for the district court to find that defendant had the mental capacity to stand trial under this section. State v. Hamlin, 156 Idaho 307, 324 P.3d 1006 (Ct. App. 2014).

Discretion of Court.

The issue of a defendant’s fitness to proceed is determined by the trial court, and while the trial judge is under a continuing duty to observe a defendant’s ability to understand the proceedings against him, even under this section and§§ 18-211 and 18-212 some degree of discretion is permitted in determining whether reasonable grounds exist to require an examination. State v. Potter, 109 Idaho 967, 712 P.2d 668 (Ct. App. 1985).

Pre-Sentence Mental Examination.

The trial court did not err by not ordering a pre-sentence mental examination where there was extensive evidence to support the trial court’s conclusion that defendant was competent at sentencing. State v. Moore, 126 Idaho 208, 880 P.2d 238 (1994).

Psychiatric Report.

Where the examining psychiatrist’s report indicated that defendant had no problem understanding the proceedings in a murder prosecution, the fact that defendant lacked the inner or emotional strength to be an effective witness did not render him unable to assist in his own defense and, thus, incompetent to stand trial. State v. Powers, 96 Idaho 833, 537 P.2d 1369 (1975), cert. denied, 423 U.S. 1089, 96 S. Ct. 881, 47 L. Ed. 2d 99 (1976).

ALR.

§ 18-211. Examination of defendant — Appointment of psychiatrists and licensed psychologists — Hospitalization — Report.

1. Whenever there is reason to doubt the defendant’s fitness to proceed as set forth in section 18-210, Idaho Code, the court shall appoint at least one (1) qualified psychiatrist or licensed psychologist or shall request the director of the department of health and welfare to designate at least one (1) qualified psychiatrist or licensed psychologist to examine and report upon the mental condition of the defendant to assist counsel with defense or understand the proceedings. The appointed examiner shall also evaluate whether the defendant lacks capacity to make informed decisions about treatment. The costs of examination shall be paid by the defendant if he is financially able. The determination of ability to pay shall be made in accordance with chapter 8, title 19, Idaho Code.
2. Within three (3) days, excluding Saturdays, Sundays and legal holidays, of the appointment or designation, the examiner shall determine the best location for the examination. If practical, the examination shall be conducted locally on an outpatient basis.
3. If the examiner determines that confinement is necessary for purposes of the examination, the court may order the defendant to be confined to a jail, a hospital, or other suitable facility for that purpose for a period not exceeding thirty (30) days. The order of confinement shall require the county sheriff to transport the defendant to and from the facility and shall notify the facility of any known medical, behavioral, or security requirements of the defendant. The court, upon request, may make available to the examiner any court records relating to the defendant.
4. In such examination, any method may be employed that is accepted by the examiner’s profession for the examination of those alleged not to be competent to assist counsel in their defense.
5. Upon completion of the examination, a report shall be submitted to the court and shall include the following:
   1. A description of the nature of the examination;
   2. A diagnosis or evaluation of the mental condition of the defendant;
   3. An opinion as to the defendant’s capacity to understand the proceedings against him and to assist in his own defense;
   4. An opinion whether the defendant lacks the capacity to make informed decisions about treatment. “Lack of capacity to make informed decisions about treatment” means the defendant’s inability, by reason of his mental condition, to achieve a rudimentary understanding of the purpose, nature, and possible significant risks and benefits of treatment, after conscientious efforts at explanation.
6. If the examination cannot be conducted by reason of the unwillingness of the defendant to participate therein, the report shall so state and shall include, if possible, an opinion as to whether such unwillingness of the defendant was the result of mental disease or defect.
7. The report of the examination shall be filed in triplicate with the clerk of the court, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant.
8. When the defendant wishes to be examined by an expert of his own choice, such examiner shall be permitted to have reasonable access to the defendant for the purpose of examination.
9. In the event a defendant is suspected of being developmentally disabled, the examination shall proceed with those experts set out in subsection (7) of section 66-402, Idaho Code.
10. In addition to the psychiatrist, licensed psychologist, or evaluation committee, the court may appoint additional experts to examine the defendant.
11. If at any time during the examination process, the examiner has reason to believe that the defendant’s alleged incompetency may be the result of a developmental disability and the matter has not already been referred to an evaluation committee for review, the examiner shall immediately notify the court. The court shall then appoint an evaluation committee or shall order the department of health and welfare to designate, within two (2) business days, an evaluation committee consistent with section 66-402(7), Idaho Code.
12. If the defendant lacks capacity to make informed decisions about treatment, as defined in section 66-317, Idaho Code, the court may authorize consent to be given pursuant to section 66-322, Idaho Code. If the defendant lacks capacity to make informed decisions as defined in subsection (9) of section 66-402, Idaho Code, the court may authorize consent to be given pursuant to sections 66-404 and 66-405, Idaho Code.
13. If the defendant was confined solely for the purpose of examination, he shall be released from the facility within three (3) days, excluding Saturdays, Sundays and legal holidays, following notification of completion of the examination.

History.

I.C.,§ 18-211, as added by 1972, ch. 336, § 1, p. 884; am. 1974, ch. 165, § 1, p. 1405; am. 1980, ch. 312, § 1, p. 797; am. 1982, ch. 368, § 3, p. 919; am. 1987, ch. 40, § 1, p. 67; am. 1996, ch. 225, § 2, p. 737; am. 1998, ch. 90, § 7, p. 315; am. 1999, ch. 293, § 4, p. 732; am. 2000, ch. 234, § 1, p. 656; am. 2019, ch. 299, § 1, p. 888.

Prior Laws.

Former§ 18-211, which comprised S.L. 1970, ch. 31, § 5, p. 61, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-211, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1, restoring the subject matter contained in the section.

Amendments.

The 2019 amendment, by ch. 299, deleted the former first sentence in subsection (9), and added it as present subsection (10); and added present subsection (11), redesignating the remaining subsections accordingly.

CASE NOTES

Application to Sentencing.

Defendant’s sentence after being convicted of grand theft was inappropriate because information in the arrest reports, the competency evaluation reports, and the PSI cried out for a thorough assessment of defendant’s mental condition. State v. Banbury, 145 Idaho 265, 178 P.3d 630 (Ct. App. 2007).

Trial court did not err under subsection (1) in denying defendant’s request for a competency evaluation prior to sentencing, because defense counsel did not state that defendant was unable to participate or assist in the sentencing proceedings; counsel believed an evaluation would only help determine why defendant declined to participate in the presentence report. State v. Hanson, 152 Idaho 314, 271 P.3d 712 (2012).

Collateral Attack on Examination.

Where trial court appointed psychiatrist under this section and defendant played no part in the appointment, did not exercise his right to have his own psychiatrist appointed under subsection (2) of§ 18-213 (repealed), and did not influence state’s inactivity with respect to having additional psychiatrists examine him under this section or§ 18-213 (repealed), state could not have kidnapping and rape case reopened five years later based on testimony of two psychiatrists disputing finding of psychiatrist in original case, since defendant in invoking procedure under§ 18-213 (repealed) did not breach a duty to anyone so as to constitute a constructive fraud upon the original trial court. State v. Hightower, 101 Idaho 749, 620 P.2d 783 (1980).

Determination of Fitness.

Where the examining psychiatrist’s report indicated that defendant had no problem understanding the proceedings in a murder prosecution, the fact that defendant lacked the inner or emotional strength to be an effective witness did not render him unable to assist in his own defense and, thus, incompetent to stand trial. State v. Powers, 96 Idaho 833, 537 P.2d 1369 (1975), cert. denied, 423 U.S. 1089, 96 S. Ct. 881, 47 L. Ed. 2d 99 (1976).

Where the psychiatric report on the defendant did not contain an opinion on the defendant’s capacity to understand the proceedings against him, but did state that the psychiatrist found no mental disease or defect, there was no fundamental error in admitting the report even though it did not contain an opinion specifically couched in the statutory language. State v. Wells, 103 Idaho 137, 645 P.2d 371 (Ct. App. 1982). The mere fact that defendant did not heed his counsel’s advice and was uncooperative, or that his conduct on the stand would have more likely hurt than helped his case, did not render him incompetent to stand trial. State v. Longoria, 133 Idaho 819, 992 P.2d 1219 (Ct. App. 1999).

Discretion of Court.

The issue of a defendant’s fitness to proceed is determined by the trial court, and, while the trial judge is under a continuing duty to observe a defendant’s ability to understand the proceedings against him, even under this section and§§ 18-210 and 18-212, some degree of discretion is permitted in determining whether reasonable grounds exist to require an examination. State v. Potter, 109 Idaho 967, 712 P.2d 668 (Ct. App. 1985).

Where defendant proceeding pro se on two counts of robbery exhibited bizarre behavior during the pretrial and trial process and mentioned a head injury, the district court’s failure to sua sponte order a psychiatric evaluation and conduct a hearing to determine his competence to stand trial was an abuse of discretion. Defendant filed a motion seeking CIA, NSA and Air Force documents; he also claimed that a CIA operative forced him to wear a bomb vest and threatened to kill him if he did not rob the banks. State v. Hawkins, 148 Idaho 774, 229 P.3d 379 (Ct. App. 2009).

Drug Abuse.

Where the record indicated that it was chronic drug abuse, not mental disease or defect, that underlay defendant’s extensive anti-social conduct, the district judge was not required to appoint a psychiatrist or a psychologist to examine defendant. State v. Dryden, 105 Idaho 848, 673 P.2d 809 (Ct. App. 1983) (Decision based on section prior to 1982 amendment).

Examination During Trial.

Giving defendant a psychiatric examination during trial and allowing the doctor to testify as to the examination and defendant’s mental state was permissible under this section. State v. Gerdan, 96 Idaho 516, 531 P.2d 1161 (1975).

Further Evaluation Not Required.

Where the trial transcript and record did not even suggest that defendant was so incompetent as to be unable to stand trial, the trial judge spoke with the defendant concerning his ability to control himself, the defendant spoke coherently and demonstrated an awareness of the proceedings, neither the defendant nor his counsel requested a judicial determination of competency by the trial court, and nothing in the record suggested that defendant’s condition had significantly deteriorated since the pretrial evaluations, the evidence supported the magistrate’s finding of competency, and the trial court’s failure to order further medical evaluations and to find defendant incompetent was not error. State v. Potter, 109 Idaho 967, 712 P.2d 668 (Ct. App. 1985).

Ineffective Assistance of Counsel.

Where the record indicates that counsel was aware of the value of doctor’s observation in his report under this section that defendant was having trouble communicating with his attorneys and counsel alerted the court to these problems and argued for further assistance, any assertion that counsel was ineffective in this regard is without merit, and failure to subpoena the doctor for the hearing was not prejudicial. State v. Soto, 121 Idaho 53, 822 P.2d 572 (Ct. App. 1991). Where appellant did not present a qualified expert’s opinion under this section or any admissible evidence to show that he was not competent at the time he pled guilty, he did not demonstrate the existence of a genuine issue of material fact supporting his claim that his attorney was ineffective for failing to request a competency evaluation under§ 18-210. Ridgley v. State, 148 Idaho 671, 227 P.3d 925 (2010).

Retroactive Competency Determination.

Supreme court rejected a bright-line rule that retroactive competency hearings that occur more than a year after trial violate due process and instead adopted a broader multi-factor approach when evaluating the validity of a retroactive competency determination. When determining whether a retroactive hearing is permissible, various “non-exhaustive factors” should be considered, including: [1] the passage of time since the trial, [2] statements made by the defendant at trial, [3] the availability of contemporaneous medical and psychiatric evidence, [4] the availability of transcript or video record of the relevant proceedings, and [5] the availability of witnesses, both expert and nonexpert, who could offer testimony regarding the defendant’s mental status at the time of trial State v. Hawkins, 159 Idaho 507, 363 P.3d 348 (2015).

Sufficiency of Examination.

The psychiatric examinations available to a defendant under this section and§ 19-852(a) were sufficient to enable him to evaluate an asserted insanity defense and were, likewise, sufficient to satisfy the constitutional demands of fundamental fairness. Accordingly, where, notwithstanding some apparent irregularities in preparing and filing the evaluation report, the defendant had already received an adequate examination at state expense, the trial court did not err in exercising its discretion to deny the defendant funds for an additional psychiatric examination. State v. Olin, 103 Idaho 391, 648 P.2d 203 (1982) (Decision prior to 1982 enactment of§ 18-207).

Cross References.

Department of correction,§ 20-201 et seq.

Director of department of health and welfare,§ 56-1003.

Prior Laws.

Former§ 18-212, which comprised S.L. 1970, ch. 31, § 6, p. 61, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-212, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1, restoring the subject matter contained in the section as it existed prior to its repeal by S.L. 1971, ch. 143, § 5.

Alternative Procedure.

Under this section, if the court in which a criminal case is pending determines that, as a result of mental disease or defect, the defendant lacks the capacity to understand the proceedings or to assist in his own defense, the court must commit the defendant to the custody of the director of the department of health and welfare for care and treatment at an appropriate facility. This section is limited in application to those defendants whose fitness to participate in the criminal proceedings has been drawn into question and is an alternative procedure, rather than the sole procedure to the exclusion of§ 66-329, for obtaining a commitment to a mental health facility for someone in the custody of a county sheriff. State v. Hargis, 126 Idaho 727, 889 P.2d 1117 (Ct. App. 1995).

Appeal.

— Question.

The question on appeal is whether there was sufficient, competent, although maybe conflicting, evidence for the district court to find that defendant had the capacity to stand trial, and the trial court’s finding must be clearly erroneous to justify reversal. State v. Daniel, 127 Idaho 801, 907 P.2d 119 (Ct. App. 1995).

Discretion of Court.

The issue of a defendant’s fitness to proceed is determined by the trial court, and while the trial judge is under a continuing duty to observe a defendant’s ability to understand the proceedings against him, even under this section and§§ 18-210 and 18-211 some degree of discretion is permitted in determining whether reasonable grounds exist to require an examination. State v. Potter, 109 Idaho 967, 712 P.2d 668 (Ct. App. 1985).

Further Evaluation Not Required.

The issue of defendant’s competency was fully litigated in a single hearing. There was no showing that other evidence would have been introduced at a second hearing. The district court did not abuse its discretion by denying the motion for a second hearing pursuant to this section. State v. Harper, 129 Idaho 86, 922 P.2d 383 (1996). Further Evaluation Not Required.

Where the trial transcript and record did not even suggest that defendant was so incompetent as to be unable to stand trial, the trial judge spoke with defendant concerning his ability to control himself, defendant spoke coherently and demonstrated an awareness of the proceedings, neither the defendant nor his counsel requested a judicial determination of competency by the trial court, and nothing in the record suggested that defendant’s condition had significantly deteriorated since the pretrial evaluations, the evidence supported the magistrate’s finding of competency, and the trial court’s failure to order further medical evaluations and to find defendant incompetent was not error. State v. Potter, 109 Idaho 967, 712 P.2d 668 (Ct. App. 1985).

Hearing.

— Not Required.

Where the competency question has not been raised, the trial judge has no duty to independently inquire as to the competency of the defendant. State v. Fuchs, 100 Idaho 341, 597 P.2d 227 (1979).

Because defendant’s fitness to proceed was not called into question before the trial court, the absence of a hearing on defendant’s fitness and the lack of a specific finding on defendant’s competency did not amount to fundamental error, and defendant’s argument that the trial court erred in failing to determine defendant’s fitness prior to accepting a guilty plea failed. State v. Hayes, 138 Idaho 761, 69 P.3d 181 (Ct. App. 2003).

Where defendant had been found competent to stand trial and that finding of competence was not contested, the trial court was not required to hold a hearing on the issue and where a second evaluation was conducted pursuant to an order signed by the district court, upon the request of newly appointed counsel, the magistrate and the district court properly acted to protect the defendant’s right to a fair trial. State v. Lovelace, 140 Idaho 73, 90 P.3d 298, cert. denied, 543 U.S. 936, 125 S. Ct. 323, 160 L. Ed. 2d 242 (2004).

— Required.

When the sanity issue has been raised, the judge must conduct a hearing to inquire as to the defendant’s capacity before accepting a guilty plea. State v. Fuchs, 100 Idaho 341, 597 P.2d 227 (1979).

Ineffective Assistance of Counsel.

Where defendant merely felt constrained when speaking with his caucasian attorney, the fact that counsel did not move for an examination under this section was not prejudicial and there was no ineffective assistance of counsel on this issue. State v. Soto, 121 Idaho 53, 822 P.2d 572 (Ct. App. 1991).

Procedure Where Defendant Mildly Retarded.

Putting Issue in Question.

Where two psychologists testified at defendant’s competency hearing and each psychologist found that defendant was mildly retarded, but one psychologist testified that he believed defendant could understand the proceedings and assist his counsel if the courtroom process was slowed down sufficiently, defendant was judged competent to stand trial, and court did not err in following recommendation of psychologist and allowing defendant’s counsel to take recesses as necessary. State v. Daniel, 127 Idaho 801, 907 P.2d 119 (Ct. App. 1995). Putting Issue in Question.

Where the defendant had announced her intention to plead not guilty by reason of insanity to a charge of first-degree murder, but later withdrew such a defense and plead guilty to second degree murder pursuant to a plea bargain, and there was some evidence of emotional problems, but her demeanor was alert and responsive and her counsel never raised the question of her sanity as the initial defense after withdrawing it, her mental capacity was not put in question and it was not error for the trial court to fail to inquire into her capacity. State v. Fuchs, 100 Idaho 341, 597 P.2d 227 (1979).

When a defendant’s fitness to proceed at trial is in question, the issue shall be determined by the trial court. State v. Daniel, 127 Idaho 801, 907 P.2d 119 (Ct. App. 1995).

Retroactive Competency Determination.

Supreme court rejected a bright-line rule that retroactive competency hearings that occur more than a year after trial violate due process and instead adopted a broader multi-factor approach when evaluating the validity of a retroactive competency determination. When determining whether a retroactive hearing is permissible, various “non-exhaustive factors” should be considered, including: [1] the passage of time since the trial, [2] statements made by the defendant at trial, [3] the availability of contemporaneous medical and psychiatric evidence, [4] the availability of transcript or video record of the relevant proceedings, and [5] the availability of witnesses, both expert and nonexpert, who could offer testimony regarding the defendant’s mental status at the time of trial State v. Hawkins, 159 Idaho 507, 363 P.3d 348 (2015).

Compiler’s Notes.

These sections, which comprised (I.C.,§§ 18-213, 18-214, as added by S.L. 1972, ch. 336, § 1, p. 844; am. S.L. 1974, ch. 165, §§ 3, 4, p. 1405; am. S.L. 1977, ch. 13, § 2, p. 25; am. S.L. 1980, ch. 312, §§ 3, 4, p. 797) were repealed by S.L. 1982, ch. 368, § 1, effective July 1, 1982. For present comparable law, see§ 18-207.

Prior Laws.

Former§ 18-215, which comprised S.L. 1970, ch. 31, § 9, p. 61, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal.

Compiler’s Notes.

The bracketed insertion near the beginning of the section was added by the compiler to correct the syntax of the original enactment.

Effective Dates.

Section 6 of S.L. 1980, ch. 312 declared an emergency. Approved April 2, 1980.

Section 14 of S.L. 1982, ch. 368 read: “This act shall be in full force and effect and shall apply to persons against whom a criminal complaint is filed on or after July 1, 1982.”

Admissibility.

District court did not err by allowing the admission during the sentencing hearing of statements defendant made to the state’s psychological experts, because§ 18-207 does not violate the Eighth Amendment and§ 19-2522 and this section do not limit the admissibility of the statements. State v. Payne, 146 Idaho 548, 199 P.3d 123 (2008).

Prior Laws.

Former§ 18-216, which comprised S.L. 1970, ch. 31, § 10, p. 61, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1, restoring the subject matter contained in the section prior to its repeal.

Decisions Under Prior Law

Age of Defendant.

Where the evidence at defendant’s jury trial indicated that defendant was 13 years old when most of the sexual contacts with his minor victim occurred and it was unclear how many acts occurred after he turned 14, his convictions for lewd conduct with a minor under 16 were vacated, because under Idaho Code§ 18-216(1) defendant could not be convicted for crimes that he committed when he was less than 14 years old. State v. Kavajecz, 139 Idaho 482, 80 P.3d 1083 (2003).

Intent of Statute.

The enactment of this section and its antecedents, as gained from the literal language, was to define the minimum age at which a child could be tried for, and convicted of, a criminal offense as if he were an adult. Wolf v. State, 99 Idaho 476, 583 P.2d 1011 (1978).

The legislative history of former§ 18-216 shows an intent to change the common law, which at times authorized the prosecution for a crime of a child as young as seven years of age. Wolf v. State, 99 Idaho 476, 583 P.2d 1011 (1978).

Waiver of Jurisdiction.

Prosecution of defendant who was 17 years of age at time of alleged offense was barred where court having jurisdiction under the Youth Rehabilitation Act (see now Juvenile Corrections Act,§§ 20-501 — 20-549) had not conducted a hearing or entered an order based thereon, waiving jurisdiction and consenting to institution of such prosecution. Hayes v. Gardner, 95 Idaho 137, 504 P.2d 810 (1972). When an order is entered waiving juvenile jurisdiction, the jurisdiction of the magistrate’s division of the district court, sitting as a juvenile court, is extinguished and at the same time there is effected a transfer of jurisdiction to the district court sitting as an adult criminal court. State v. Harwood, 98 Idaho 793, 572 P.2d 1228 (1977).

In proceeding to determine whether or not juvenile jurisdiction should be waived, the only determination by the magistrate was the existence of probable cause to justify transfer to the adult court and such determination could be based on hearsay and need not be tested by cross-examination and confrontation. Wolf v. State, 99 Idaho 476, 583 P.2d 1011 (1978).

The nature of the accusation is a relevant factor for the court to consider in deciding whether or not to waive jurisdiction. Wolf v. State, 99 Idaho 476, 583 P.2d 1011 (1978).

A probable cause finding in conjunction with the procedure of waiving juvenile jurisdiction is not required by the Idaho or federal constitutions, since when a juvenile court waives jurisdiction an adult court must still conduct a preliminary hearing at which probable cause must be determined; and, if juvenile jurisdiction is not waived, a probable cause determination is made by the juvenile court as to whether and how to proceed on the juvenile petition. Wolf v. State, 99 Idaho 476, 583 P.2d 1011 (1978).

District court did not abuse its discretion by waiving a 15-year old defendant into adult court for trial, because each factor considered was supported by substantial and competent evidence, including the young age of the victim and the seriousness of the alleged crimes of attempted murder, battery, and forcible penetration. State v. Doe (In re Doe), 147 Idaho 243, 207 P.3d 974 (2009).

— Review of Waiver.

A review of a juvenile jurisdiction waiver must be sought before the charges as an adult have proceeded to trial and, in effectuating such an appeal, review should first be sought in the district court while proceedings in the adult court are held in abeyance pending resolution of the waiver issue. State v. Harwood, 98 Idaho 793, 572 P.2d 1228 (1977).

Compiler’s Notes.

Section 39-308, referred to in subsection (2), was repealed by S.L. 2015, ch. 63, § 2, effective July 1, 2015.

Prior Laws.

Former§ 18-301, which comprised R.S., R.C., & C.L., § 8602; C.S., § 8602; I.C.A.,§ 17-301, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-301, as added by S.L. 1971, ch. 143, § 1. That§ 18-301, as added by S.L. 1971, ch. 143, § 1, was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Compiler’s Notes.

This section, which comprised I.C.,§ 18-301, as added by S.L. 1972, ch. 336, § 1, p. 844, was repealed by S.L. 1995, ch. 16, § 1, effective February 13, 1995.

Cross References.

Contempts in civil proceedings,§ 7-601 et seq.

Contempts in criminal proceedings,§ 18-1801.

Criminal acts punishable as contempts,§ 18-105.

Prior Laws.

Former§ 18-302, which comprised R.S., R.C., & C.L., § 7231; C.S., § 8603; I.C.A.,§ 17-302, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-302, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Inherent Powers of Courts.

Where certain acts of contempt are made crimes, making such acts punishable as crimes does not affect any power conferred on court to impose or inflict punishment for contempt. McDougall v. Sheridan, 23 Idaho 191, 128 P. 954 (1913).

Cross References.

Criminal offenses for which no penalties are fixed punishable as misdemeanors,§ 18-317.

General penalties for felonies,§ 18-112.

General penalties for misdemeanors,§ 18-113.

Prior Laws.

Former§ 18-303, which comprised Cr. & P. 1864, § 151; R.S., R.C., & C.L., § 7332; C.S., § 8604; I.C.A.,§ 17-303 was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-303, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section as was added by S.L. 1972, ch. 336, § 1, restoring the subject matter contained in the section as it existed prior to its repeal by S.L. 1971, ch. 143, § 5.

Application.

This section and former§ 19-2517, authorizing trial court to impose alternative sentence of imprisonment against defendant in case of failure to pay fine or costs, or both fine and costs, as case may be, have reference to judgment upon original trial of a criminal case. In re Lucas, 17 Idaho 164, 104 P. 657 (1909).

RESEARCH REFERENCES

Am. Jur. 2d.

Prior Laws.

Former§ 18-304, which comprised R.S., & R.C., § 7233; am. S.L. 1917, ch. 137, p. 447; reen. C.L., § 7233; C.S., § 8605; I.C.A.,§ 17-304, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-304, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Compiler’s Notes.

The bracketed word “act” was inserted by the compiler to correct the syntax of the enacting legislation.

Prior Laws.

Former§ 18-305, which comprised R.S., R.C., & C.L., § 7234; C.S., § 8606; I.C.A.,§ 17-305, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-305, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Felony Murder.

Because intent is not an element of felony murder, but is an element of attempt to commit a crime, there is no such crime as attempted felony murder. State v. Pratt, 125 Idaho 546, 873 P.2d 800 (1993).

Rape.

In prosecution for statutory rape, defendant may be convicted of assault with intent to commit rape. State v. Garney, 45 Idaho 768, 265 P. 668 (1928); State v. Smailes, 51 Idaho 321, 5 P.2d 540 (1931).

Am. Jur. 2d.

ALR.

Prior Laws.

Former§ 18-306, which comprised Cr. & P. 1864, § 158; R.S., R.C., & C.L., § 7235; C.S., § 8607; I.C.A.,§ 17-306, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-306, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 5 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Application.

Where a statute defined a crime as an attempt and also stated that the offender is guilty of a misdemeanor without prescribing any punishment therefor, the former section was not applicable. State v. Reinoehl, 70 Idaho 361, 218 P.2d 865 (1949).

Where amended information charged “assault with intent to commit rape,” although the attempt was not by means of threat or violence, the means by which the alleged offense was committed also constituted an offense and was sufficiently set forth in the information as an included offense. State v. Hall, 88 Idaho 117, 397 P.2d 261 (1964).

Arson.

Attempt to commit arson is a crime under this section. State v. Collins, 3 Idaho 467, 31 P. 1048 (1892).

Brokers.

One charged with the crime of “acting as a broker” may be punished for attempt to commit such crime. State v. Johnson, 54 Idaho 431, 32 P.2d 1023 (1934).

Burglary.

Information charged attempted burglary where the information stated that the defendant on or about specified date and place did wilfully and feloniously attempt to break into and enter in the nighttime an identified building with intent to commit larceny therein. State v. Bedwell, 77 Idaho 57, 286 P.2d 641 (1955).

There was sufficient evidence to convict defendant of attempted burglary where the evidence showed that night watchman discovered that a person was attempting to break in and fired through the door, and defendant was found eight to 12 feet from the door with bullet wounds in his arm and leg, and two screw drivers near his body, and his car was parked close by. State v. Bedwell, 77 Idaho 57, 286 P.2d 641 (1955).

Discretion of Court.

In prosecution for attempted rape of a child, where the investigation disclosed that defendant, who was 22 years old when sentenced, had prior convictions for a burglary and two petit larcenies and also had a history of unlawful use and distribution of drugs and alcohol, the imposition of a ten-year indeterminate sentence did not represent an abuse of discretion and the district judge did not abuse his discretion by refusing to retain jurisdiction under§ 19-2601 4. State v. Nield, 105 Idaho 153, 666 P.2d 1164 (Ct. App. 1983), aff’d, 106 Idaho 665, 682 P.2d 618 (1984). The district court properly instructed the jury on the elements of the offense of kidnapping in the second degree and the instructions adequately addressed the intent requirement of the offense, accordingly, in consideration of the instructions given and in light of the Idaho Criminal Jury Instructions preface, a separate instruction defining intent was unnecessary. State v. Dragoman, 130 Idaho 537, 944 P.2d 134 (Ct. App. 1997).

Impossibility Not a Defense.

District court correctly rejected defendant’s proffered impossibility defense where factual or legal impossibility for the defendant to commit the intended crime was not relevant to a determination of defendant’s guilt of attempt. State v. Glass, 139 Idaho 815, 87 P.3d 302 (Ct. App. 2003).

Length of Sentence.

Where record of 16 year old showed a pattern of uncontrolled substance abuse and violent behavior towards others and that most of his criminal activity occurred when he was under the influence of some massive quantity of controlled drugs or alcohol, an indeterminate sentence of ten years for attempted robbery was not excessive nor an abuse of discretion, since under former provisions of§ 20-223 defendant could be eligible for parole after serving one-third of the sentence. State v. Reinke, 103 Idaho 771, 653 P.2d 1183 (Ct. App. 1982).

The 15-year indeterminate sentence for attempted second degree murder was not excessive, where the defendant wounded the night watchman four times with a .22 caliber pistol while burglarizing a convenience store, there was evidence that the victim’s final wound was inflicted from close range while he was disabled and lying on his stomach, and the presentence investigation revealed several nonviolent prior offenses, including a third degree theft conviction. State v. Bourgeois, 111 Idaho 479, 725 P.2d 184 (Ct. App. 1986).

Defendant’s sentences for attempted robbery and aggravated battery were not excessive or represent an abuse of discretion where trial judge imposed maximum concurrent sentences, 15 years, for each crime and because defendant used a firearm in committing aggravated battery, the court extended the aggravated battery sentence for an additional 15 years, as permitted by§ 19-2520; for each crime the sentencing judge specified that the minimum term of confinement would be the entire length of the sentence and under these sentences defendant must spend 30 years in confinement without the possibility of parole. State v. Sanchez, 115 Idaho 394, 766 P.2d 1275 (Ct. App. 1988).

Identical concurrent 14-year sentences with a minimum period of confinement of ten years for attempted robbery and for first degree burglary were within the maximum penalties allowed by statute and were not excessive, even though no one was hurt and no money taken. State v. Ellenwood, 115 Idaho 813, 770 P.2d 822 (Ct. App. 1989).

Imposition of a ten-year unified sentence with a four-year minimum period of confinement for attempted robbery was not an abuse of discretion, in light of the defendant’s previous record, his past unsuccessful attempts at rehabilitation, and his admitted use and sale of drugs. State v. Sommerfeld, 116 Idaho 518, 777 P.2d 740 (Ct. App. 1989). The district court properly sentenced defendant to a nine-year determinate period of confinement to be followed by a three and one-half year indeterminate period with regard to a charge of attempted kidnapping in the second degree, where the court considered all of the appropriate goals of sentencing in light of the circumstances of this particular case and concluded that defendant’s substance abuse in this case did not mitigate the seriousness of the offense, and that the community had a right to expect not to be treated as defendant had treated the victim. State v. Connor, 119 Idaho 1003, 812 P.2d 310 (Ct. App. 1991).

A 15-year fixed term for attempted second degree murder and a consecutive indeterminate ten-year term for assault with intent to commit rape was reasonable, where psychologist concluded that defendant was not a good candidate for verbal psychotherapy and, even though defendant did not have a long prior record, the record he had was quite serious. State v. Fenstermaker, 122 Idaho 926, 841 P.2d 456 (Ct. App. 1992).

Lesser Included Offense.

Where there was only one event, defendant’s shooting at victim’s door, on which charges could be based, the charge of assault with a deadly weapon was a lesser included offense in a charge of attempted robbery such as to preclude conviction of both charges under the double jeopardy clause of the Fifth Amendment of the United States Constitution and the Idaho Constitution. State v. Thompson, 101 Idaho 430, 614 P.2d 970 (1980).

Murder.

Where there was sufficient evidence to show that the defendant had the requisite intent to kill a human being and then acted in furtherance of that intent by encouraging another to carry through with the plan, convictions on two counts of attempted murder were affirmed. State v. Fabeny, 132 Idaho 917, 980 P.2d 581 (Ct. App. 1999).

Prescription Drug by Fraud.

Obtaining a controlled substance by fraud is a felony and is punishable by imprisonment for not more than four (4) years, or a fine of not more than $30,000, or both. Because the offense is specifically punishable by both imprisonment in the state prison and a fine, the offense falls squarely within the ambit of subsection (5) of this section. State v. Summers, 152 Idaho 35, 266 P.3d 510 (Ct. App. 2011).

Procurement of Prostitution.

Defendant’s convictions for the attempted procurement of prostitution and for the procurement of prostitution were proper because the attempt statute was permitted to be combined with the procurement of prostitution statute in order to convict defendant for the attempted procurement of prostitution. State v. Grazian, 144 Idaho 510, 164 P.3d 790 (2007), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Rape.

Offense of “attempt to commit rape” can be included in the charge of “assault with intent to commit rape.” State v. Hall, 88 Idaho 117, 397 P.2d 261 (1964).

Penalty for assault with intent to commit rape is imprisonment of one to fourteen years, and for attempt to commit rape is one half of the punishment for the crime of rape which is imprisonment for one year to life; therefore, although one half of a life sentence cannot be calculated, the actual sentence thus fixed may be less than that imposed for assault with intent to commit rape. State v. Hall, 88 Idaho 117, 397 P.2d 261 (1964). Written statements by defendant, made to and taken down by an investigating officer of the air force, corroborated testimony by prosecutrix as to actions of defendant that led to institution of criminal proceedings and sufficiently established the corpus delicti of defendant’s attempted rape of his thirteen-year-old daughter. State v. Hall, 88 Idaho 117, 397 P.2d 261 (1964).

An overt act is a required element of the crime of attempted rape. Bates v. State, 106 Idaho 395, 679 P.2d 672 (Ct. App. 1984).

The crime of attempted rape is an included offense in the crime of assault with intent to commit rape; specific intent to commit the rape is an element of both attempted rape and assault with intent to rape where the rape itself is not consummated. Bates v. State, 106 Idaho 395, 679 P.2d 672 (Ct. App. 1984).

Giving the amended information a fair and reasonable construction, and by construing the document liberally in favor of its validity, it was held that the language charging defendant with attempted rape was not so defective as to fail to inform him of the element of intent to commit rape which was essential to the crime charged. State v. Leach, 126 Idaho 977, 895 P.2d 578 (Ct. App. 1995).

Defendant’s Alford plea to charges under this section reflected his lack of acceptance of responsibility for his actions and indicated that he was unsuitable for rehabilitation at the time of sentencing. State v. Baker, 153 Idaho 692, 290 P.3d 1284 (Ct. App. 2012).

Robbery.

Where testimony demonstrated that the defendant committed acts in furtherance of an intent to take property from a pawn shop by force when he entered the shop and gave a signal to another participant to start shooting, even though the defendant did not complete the robbery by actually taking property his actions were sufficient to sustain a verdict for attempted robbery. State v. Fabeny, 132 Idaho 917, 980 P.2d 581 (Ct. App. 1999).

Robbery and Assault.

Since penalty for attempted robbery is half of sentence for robbery, which is imprisonment for five years to life, while punishment for assault with a deadly weapon is not more than five years, assault could not be considered the greater offense on the grounds that it carried greater penalty; although half of life sentence cannot be calculated, court can set base maximum sentence at less than life and use such maximum to determine the sentence for attempt, so that actual sentence fixed for attempted robbery may be less than sentence for assault with deadly weapon. State v. Thompson, 101 Idaho 430, 614 P.2d 970 (1980).

Sentence.

— Upheld.

A fifteen-year determinate sentence for attempted murder and a consecutive 35-year sentence, with fifteen years determinate, for robbery was not excessive, where the character of the offense was vicious and unprovoked involving infliction of multiple stab wounds on a helpless victim. State v. Mitchell, 124 Idaho 374, 859 P.2d 972 (Ct. App. 1993). The trial court properly denied defendant’s motion to correct an illegal sentence where: the trial court found that for the crime of attempted first-degree murder, the maximum penalty defendant faced was one-half of a life sentence; the trial court fixed a base maximum of forty-five years based upon defendant’s age and life expectancy; the trial court advised defendant that the maximum penalty he faced for attempted first-degree murder was twenty-two years and six months, one half of the base maximum; and the trial court then offered defendant the opportunity to withdraw his plea which he declined. State v. Wood, 125 Idaho 911, 876 P.2d 1352 (1994).

Where defendant bought a gun the day before the shooting, he violated a restraining order and went to his wife’s home and he shot all six bullets from it at his wife, two to four of which hit her, given the sentencing goals of protecting society along with deterrence, rehabilitation and retribution, a seven-year fixed sentence is not longer than necessary to achieve these goals and was not unreasonable at the time imposed, even though defendant had no previous criminal involvement, and may not have posed a threat to the general public. State v. Gomez, 126 Idaho 83, 878 P.2d 782, cert. denied, 513 U.S. 1005, 115 S. Ct. 522, 130 L. Ed. 2d 427 (1994).

The defendant bears the burden to show that the sentence is unreasonably harsh in light of the primary objective of protecting society and the related goals of deterrence, rehabilitation and retribution. Therefore, defendant’s sentence was not unduly harsh where defendant had previously been given an opportunity for rehabilitation through the retained jurisdiction but continued his criminal behavior, did not accept responsibility for his conduct, and continued to assert his innocence in the present case and also denied the stabbing for which he had previously been convicted. State v. Harrison, 136 Idaho 504, 37 P.3d 1 (Ct. App. 2001).

Solicitation of Attempt.

Where defendant agreed to pay undercover agent $1,000 to kill a police officer and actually paid him $250 in “up front” money before being arrested, he could not be convicted for attempted murder since his only actions were those of solicitation by the preparatory act of inciting another to commit the crime and there was no actus reus in actually committing the crime; moreover, the partial payment made was a “slight act” only in furtherance of the solicitation rather than a preparatory act sufficiently proximate to establish an attempt. State v. Otto, 102 Idaho 250, 629 P.2d 646 (1981).

Subornation of Perjury.

Where the evidence did not establish when, if ever, the subornation attempt actually was discontinued, the jury permissibly could have found that the defendant never withdrew his offer to pay whatever the witness wanted for favorable testimony, and discontinuing the attempt, after it had been made and had failed, would not take the case outside of this section, the general attempt statute. State v. Gibson, 106 Idaho 491, 681 P.2d 1 (Ct. App. 1984).

Unsuccessful Attempts.

An unsuccessful attempt to commit extortion by means of a verbal threat would, in the absence of former law providing for punishment for attempted extortion, be punishable, because there is no distinction between an attempt and an unsuccessful attempt. State v. Reinoehl, 70 Idaho 361, 218 P.2d 865 (1949).

Record was clear that defendant intended to commit second-degree murder during his attack on the victim, when he attempted but failed to consummate that crime because his gun misfired, the victim escaped; this section permits prosecution for charge of attempted second-degree murder. Fenstermaker v. State, 128 Idaho 285, 912 P.2d 653 (Ct. App. 1995). Where defendant did not deny that he intended to engage in sexual relations with a minor girl for the purpose of gratifying his sexual desires, which would have amounted to a crime in violation of§ 18-1508, or that his actions went beyond mere preparation, the evidence was sufficient to support his conviction for attempted lewd conduct with a minor under 16 years of age; and the statute provided no exception for one who intended to commit a crime but failed because he was unaware of some fact that would have prevented him from completing the intended crime, such as the fact that a police officer was impersonating the teenage girl the defendant thought he was chatting with online; therefore, it had eliminated impossibility as a defense to attempt. State v. Curtiss, 138 Idaho 466, 65 P.3d 207 (Ct. App. 2002).

ALR.

§ 18-307. Attempt resulting in different crime.

The last two (2) sections do not protect a person who, in attempting unsuccessfully to commit a crime, accomplishes the commission of another and different crime, whether greater or less in guilt, from suffering the punishment prescribed by law for the crime committed.

History.

I.C.,§ 18-307, as added by 1972, ch. 336, § 1, p. 844.

Prior Laws.

Former§ 18-307, which comprised R.S., R.C., & C.L., § 7236; C.S., § 8608; I.C.A.,§ 17-307, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-307, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Attempted Procurement of Prostitution.

Defendant’s convictions for the attempted procurement of prostitution and for the procurement of prostitution were proper, because the attempt statute was permitted to be combined with the procurement of prostitution statute in order to convict defendant for the attempted procurement of prostitution. State v. Grazian, 144 Idaho 510, 164 P.3d 790 (2007), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Prior Laws.

Former§ 18-308, which comprised Cr. & P. 1864, § 446; R.S., R.C., & C.L., § 7237; C.S., § 8609; I.C.A.,§ 17-308, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-308, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1, restoring the subject matter contained in the section prior to its repeal by S.L. 1971, ch. 145, § 5.

Common Law Rule.

This section, as amended, was not intended to prohibit consecutive sentences but, on the contrary, the primary effect of the amendment was to reinstate the common-law rule making such sentencing discretionary with the court. State v. Lawrence, 98 Idaho 399, 565 P.2d 989 (1977).

This section, as amended, was not intended to abrogate or modify the common-law rule pertaining to consecutive sentences, thereby prohibiting the court from imposing such sentences except in the narrow range of cases meeting the requirements of this section. State v. Lawrence, 98 Idaho 399, 565 P.2d 989 (1977). This section was not the source of a trial court’s authority to impose a cumulative sentence because, under the common law, the courts in Idaho had discretionary power to impose cumulative sentences. The trial court in Twin Falls did not intend that the incarceration ordered would commence after defendant’s probation ended in the Gooding county case, such that it clearly intended that the incarceration in the Twin Falls county case would be cumulative to any incarceration defendant served in the Gooding county case, and it had the common law authority to do so. State v. Cisneros-Gonzalez, 141 Idaho 494, 112 P.3d 782 (2004).

Concurrent Fines.

Although, under common law and this section, trial courts may impose concurrent terms of imprisonment, there is no similar authority with regard to concurrent fines. State v. Lemmons, 161 Idaho 652, 389 P.3d 197 (Ct. App. 2017).

Concurrent Sentences.

The imposition of consecutive sentences is authorized and made discretionary by this section; and, in the exercise of that discretion, a judge’s decision to impose concurrent rather than consecutive sentences may properly be viewed as mitigation of punishment. State v. Brandt, 109 Idaho 728, 710 P.2d 638.

While it is true that Idaho trial courts have broad common law sentencing discretion, the legislature has limited that discretion for sentences in drug trafficking cases by requiring courts to impose mandatory minimum imprisonment terms and fines on each count of trafficking for which a defendant is convicted. State v. Lemmons, 161 Idaho 652, 389 P.3d 197 (Ct. App. 2017).

Consecutive Sentences.

Although the district court failed to specify a minimum period of confinement with regard to a consecutive, three-year indeterminate sentence imposed on defendant on count two of issuing checks without funds, in addition to a three-year fixed sentence on count one, because the record showed that the court intended to set the minimum period of confinement at zero, the sentence did not violate the requirements of§ 19-2513 that the aggregate sentence not exceed the maximum provided by law. State v. Martinsen, 128 Idaho 472, 915 P.2d 34 (Ct. App. 1996).

District court abused its discretion by arriving at an unreasonably harsh sentencing structure of incarceration for sixty years without the possibility of parole for defendant’s crimes of rape, forcible sexual penetration with a foreign object and robbery; totality of sentences was more than reasonably necessary to accomplish sentencing goals. State v. Amerson, 129 Idaho 395, 925 P.2d 399 (Ct. App. 1996), cert. denied, 521 U.S. 1123, 117 S. Ct. 2519, 138 L. Ed. 2d 1020 (1997).

District court properly exercised its discretion in deciding that defendant’s sentence for possession of a controlled substance should be served consecutively to sentences for grand theft and burglary, where court considered the appropriate goals of sentencing and properly considered defendant’s psychological evaluation, the presentence investigation report, and defendant’s other criminal charges. State v. Helms, 130 Idaho 32, 936 P.2d 230 (Ct. App. 1997).

Consecutive sentences for second degree murder of life with 25 years for one murder, and life with 40 years for the other murder, were not excessively harsh given brutality and grizzliness of the crimes, defendant’s planning, profit motive, credibility gap and apparent lack of deep remorse. State v. Li, 131 Idaho 126, 952 P.2d 1262 (Ct. App. 1998). Defendant’s sentences were modified to remove the provision that his sentences must be served consecutive to his federal probation because, under this section a sentence of imprisonment can be made to run consecutive only to an earlier term of imprisonment. The statute does not authorize a sentencing court to order a term of imprisonment to run consecutive to a term of probation. State v. Bello, 135 Idaho 442, 19 P.3d 66 (Ct. App. 2001).

The district court had the authority to order that defendant’s Idaho sentence would run consecutive to his federal sentence because this section does not limit the district court’s authority to impose consecutive sentences, and because defendant’s probation was revoked following the grant of a withheld judgment, so the district court had the authority to impose any sentence which might have been imposed at the time of defendant’s original sentencing for grand theft by possession of stolen property. State v. Murillo, 135 Idaho 811, 25 P.3d 124 (Ct. App. 2001).

Trial court possessed authority to impose successive two-year periods of probation for each of defendant’s misdemeanor convictions, regardless of the length of the suspended jail sentences. State v. Horejs, 143 Idaho 260, 141 P.3d 1129 (Ct. App. 2006).

In prosecution of defendant on probation, magistrate had authority to execute the previously suspended sentence, as well as impose two suspended sentences and two consecutive terms of probation for the current offenses. State v. Clapper, 143 Idaho 338, 144 P.3d 43 (Ct. App. 2006).

When sentencing defendant for leaving the scene of an accident resulting in injury or death, reckless driving, and obstructing an officer, the trial court did not impose an excessive sentence by requiring that defendant’s sentence run consecutively to a sentence in a prior case, where the trial court properly weighed the protection of society with the possibility of rehabilitation and deterrence; defendant had a prior criminal record and had served time in prison for rape. State v. Mead, 145 Idaho 378, 179 P.3d 341 (Ct. App. 2008).

Consecutive Terms.

Where the trial court made a life sentence for robbery consecutive to previous sentences for rape and kidnapping because defendant was a persistent violator of the law and because the robbery conviction was separate and apart from the crimes of rape and kidnapping for which he was then serving sentences, and where the presentence report showed a lengthy criminal record, the district court did not act unreasonably in the structuring of the sentence. State v. Lloyd, 104 Idaho 397, 659 P.2d 151 (Ct. App. 1983).

Where, at the time of sentencing for forgery and burglary in Idaho, defendant had pled guilty to both charges and such pleas had been accepted by the court, then at that point, for the purpose of the application of this section, defendant had been convicted on both charges and once one sentence had been imposed, the court was free to exercise its discretion by ordering the second sentence to be served consecutive to the first; however, the district court, in the original judgment and sentence in each case, erred in making each sentence consecutive to the other. State v. Teal, 105 Idaho 501, 670 P.2d 908 (Ct. App. 1983).

Where defendant convicted of grand larceny was placed on probation for 14 years, but violated his parole, the district court, upon revoking probation, did not have the power to order the sentence originally imposed to be served consecutively to a later sentence imposed for a crime which occurred during the probationary period; the original sentence could only run concurrently with the later sentence. State v. West, 105 Idaho 505, 670 P.2d 912 (Ct. App. 1983). Where the defendant pled guilty to five counts of first degree burglary and was sentenced to an indeterminate term of 15 years on each count, in light of the defendant’s prior record and the nature of the present offenses, the trial court did not abuse its discretion in ordering that four of the sentences were to be served concurrently with each other but consecutive to the first sentence imposed. State v. Yarbrough, 106 Idaho 545, 681 P.2d 1020 (Ct. App. 1984).

A sentence within the statutory maximum will not be deemed excessive, unless the appellant shows that under any reasonable view of the facts the term of confinement is longer than appears necessary, at the time of sentencing, to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution; thus, where the defendant had been convicted of two burglaries in Oregon and was involved in five others in that state during the 18 months preceding his convictions in Idaho, and at the time of his arrest in Idaho, was in violation of the terms of probation he was serving for the State of Oregon, and had been involved in ten burglaries within a relatively short period of time prior to his Idaho convictions, the trial court did not abuse its discretion by making the sentences consecutive. State v. Mathis, 107 Idaho 685, 691 P.2d 1300 (Ct. App. 1984).

Where defendant’s extensive criminal record indicated his clear propensity to re-offend, even when he had been released on parole under a situation of structured supervision, the trial court did not act unreasonably or abuse its discretion in sentencing defendant to a consecutive rather than a concurrent term of confinement. State v. Elliott, 121 Idaho 48, 822 P.2d 567 (Ct. App. 1991).

The sentences imposed by the district court were reasonable and there was no basis to hold that the district court abused its discretion in ordering a grand theft sentence to be served consecutively to one imposed for issuing a check without sufficient funds. State v. Teske, 123 Idaho 975, 855 P.2d 60 (Ct. App. 1993).

Consecutive to Sentence in Another State.

The question in deciding whether the sentence for one crime should be consecutive to the sentence for another is not where the offenses occurred or where the convictions were entered, but whether the nature of the crimes makes cumulative punishment appropriate; thus, the inherent power to impose consecutive sentences includes the authority to impose a sentence consecutive to another sentence imposed by the court of a foreign jurisdiction. State v. McKaughen, 108 Idaho 471, 700 P.2d 93 (Ct. App. 1985).

Conviction.

For purposes of this section, “conviction” occurs when the defendant pleads guilty and that plea is accepted by the court. State v. Chauncey, 97 Idaho 756, 554 P.2d 934 (1976).

Failure to Appeal.

Where the defendant failed to appeal the denial of his motion to reconsider the sentences, he waived his right to challenge the court’s sentencing discretion. Almada v. State, 108 Idaho 221, 697 P.2d 1235 (Ct. App. 1985).

Modification on Appeal.

Power of Court.

The sentence of a defendant, convicted on three separate counts of committing a lewd act upon the body or the bodies of minor children, to ten years imprisonment on each count, which sentences would run consecutively, was unduly harsh and should be modified to provide for such sentences to run concurrently. State v. Ross, 92 Idaho 709, 449 P.2d 369 (1968), overruled on other grounds, State v. Hall, 95 Idaho 110, 504 P.2d 383 (1972), and overruled on other grounds, State v. McNeely, 162 Idaho 413, 398 P.3d 146 (2017). Power of Court.

Where defendant, who had a prior conviction for lewd and lascivious conduct, was convicted after entering pleas of guilty to three counts of statutory rape, the trial court did not abuse its discretion in denying defendant’s application for probation and in imposing three consecutive ten-year prison terms. State v. Mansfield, 97 Idaho 138, 540 P.2d 800 (1975).

Where defendant had been advised of a possible three-year maximum sentence on each count of uttering and delivering a check with insufficient funds, the trial court did not err in imposing three concurrent three-year sentences and one consecutive three-year sentence upon defendant’s plea of guilty to each count, even though defendant was not specifically advised of the court’s discretion to impose consecutive sentences. State v. Morris, 97 Idaho 273, 543 P.2d 498 (1975).

Where defendant entered plea of guilty to a charge of burglary on May 12 and then on May 13 entered plea of guilty to a separate charge of burglary of a different business establishment, defendant was thereby convicted of two crimes prior to pronouncement of sentence upon either and the court was empowered to order consecutive sentences. State v. Chauncey, 97 Idaho 756, 554 P.2d 934 (1976).

Where judgments of conviction were entered against defendant following pleas of guilty to murder in the second degree, assault with a deadly weapon with intent to murder, and robbery, the trial court did not abuse its discretion in providing that the twenty-year robbery sentence would run consecutively to concurrent sentences of life imprisonment and fourteen (14) years on the murder and assault charges. State v. Prince, 97 Idaho 893, 556 P.2d 369 (1976), overruled on other grounds, State v. Broadhead, 120 Idaho 141, 814 P.2d 401 (1991).

This section does not limit the authority of the district courts to impose consecutive sentences. State v. Lawrence, 98 Idaho 399, 565 P.2d 989 (1977).

Where a convicted forger was not sentenced for that crime until after a subsequent conviction and sentencing for rape, the district court had authority to impose a sentence for the forgery conviction which was to run consecutively to the sentence for rape. State v. Lawrence, 98 Idaho 399, 565 P.2d 989 (1977).

Where the four-year sentences imposed on each of two convictions for assault with a deadly weapon were within the statutory limits and the defendant’s FBI record indicated that the defendant had committed a number of offenses in various other states, the trial court did not abuse its discretion in ordering that the sentences run consecutively. State v. Thomas, 98 Idaho 623, 570 P.2d 860 (1977).

Where a defendant stated that as soon as he got out on parole he would be “as bad or worse” than he was at time of sentencing, the trial court did abuse its discretion in ordering that sentences for robbery and assault with a deadly weapon should run consecutively and commence at the expiration of the 29-year sentence the defendant was then serving. State v. Jagers, 98 Idaho 779, 572 P.2d 882 (1977).

The imposition of consecutive sentences is authorized and made discretionary by this section; and the exercise of that discretion will not be disturbed on appeal unless it has been abused. State v. Lloyd, 104 Idaho 397, 659 P.2d 151 (Ct. App. 1983). A district court possesses inherent authority to impose consecutive sentences for multiple offenses. State v. Lee, 111 Idaho 489, 725 P.2d 194 (Ct. App. 1986).

Because the district court had only ministerial authority to act, and changing defendant’s sentence from running concurrently sentences to running consecutively was a discretionary and substantive change, the district court had no subsidiary authority to order that defendant’s sentence be served consecutively. State v. Bosier, 149 Idaho 664, 239 P.3d 462 (Ct. App. 2010).

Prior Laws.

Former§ 18-309, which comprised R.S., R.C., & C.L., § 7238; C.S., § 8610; I.C.A.,§ 17-309, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-309, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1, restoring the subject matter contained in the section as it existed prior to its repeal by S.L. 1971, ch. 143, § 5.

Amendments.

The 2015 amendment, by ch. 99, designated the existing provisions of the section as subsection (1) and added subsection (2).

Effective Dates.

Section 2 of S.L. 1975, ch. 201 provided that the act should take effect on and after July 1, 1975.

Appeal.

A claim that credit for prejudgment incarceration was not properly given is a claim that the sentence is illegal, since the sentence would have been imposed in violation of this section, and defendant’s motion filed two-and-one-half years after imposition of the judgment was timely and was properly considered on the merits by the district court. State v. Rodriguez, 119 Idaho 895, 811 P.2d 505 (Ct. App. 1991).

Applicability.

Where nothing in the record reflected incarceration in Idaho or another state prior to entry of judgment for the offense or for an included offense upon which the appeal was based, this section did not apply. State v. West, 105 Idaho 505, 670 P.2d 912 (Ct. App. 1983).

The 2015 amendment of this section is not retroactive. State v. Leary, 160 Idaho 349, 372 P.3d 404 (2016); State v. Taylor, 160 Idaho 381, 373 P.3d 699 (2016).

District court did not err in entering an order denying defendant’s motion for credit for the eight days he served as a condition of probation because, although the credit statutes,§ 19-2603 and this section, were amended effective July 1, 2015, and now provide that a court has to award a defendant with credit for time served as a condition of probation, prior to the amendment, the court was not so required. The 2015 amendment did not have retroactive effect. State v. Hiatt, 162 Idaho 726, 404 P.3d 668 (Ct. App. 2017).

This section is applicable to adults and juveniles sentenced in adult proceedings; thus, it is not applicable to someone sentenced under the Juvenile Corrections Act. State v. Doe (In the Interest of Doe), — Idaho —, 438 P.3d 769 (2019).

Confinement Out-of-State.

Probation violator’s arrest and confinement in California, before he was delivered to the Idaho authorities, had nothing to do with the Idaho convictions; violator was not entitled to credit for any time spent in California custody, other than the concurrent operation of the Idaho and California sentences after his probation was revoked in Idaho. State v. Teal, 105 Idaho 501, 670 P.2d 908 (Ct. App. 1983).

In sentencing, the district court properly allowed credit only for time defendant served in confinement related to this state’s charges, and not for time he served in another state on other charges. State v. Moliga, 113 Idaho 672, 747 P.2d 81 (Ct. App. 1987).

Entitlement to Credit for Time Served.

The contention that delay by this state effectively eliminated any possibility of defendant’s prison terms in this state and another state running concurrently and resulting in his gaining release without having to transfer to this state to finish, or to receive parole on, the remaining sentence in this state was without merit, as concurrency of sentences is controlled by statute and is not constitutionally required. State v. Moliga, 113 Idaho 672, 747 P.2d 81 (Ct. App. 1987). Entitlement to Credit for Time Served.

An entitlement to credit under this section depends upon the answer to a simple inquiry: was the defendant’s incarceration upon the offense for which he was sentenced? If a particular period of confinement served prior to the imposition of sentence is not attributable to the charge or conduct for which a sentence is to be imposed, the offender is not entitled to credit for such confinement; neither does the sentencing judge err by denying credit under such circumstances. State v. Hale, 116 Idaho 763, 779 P.2d 438 (Ct. App. 1989).

Where defendant’s presentence incarceration was for the offense of intimidating a witness and not for the original offense of theft for which he was ultimately sentenced, district court did not err in refusing to give him credit for the presentence incarceration. State v. Rodriguez, 119 Idaho 895, 811 P.2d 505 (Ct. App. 1991).

A defendant is entitled to credit for any period of incarceration occurring prior to entry of judgment, and for any period subsequent to the judgment occurring while the defendant still is under the jurisdiction of the court. This section does not specify how the recitation of this credit is to be documented, i.e., by amending the judgment of conviction or by separate order; the district court did not err by implementing that credit by way of an order, rather than an amended judgment, directed to the board of correction. State v. Villarreal, 126 Idaho 277, 882 P.2d 444 (Ct. App. 1994).

Where defendant’s incarceration in the state penitentiary was attributable to his previous conviction for attempted burglary, defendant was not entitled to credit for incarceration that occurred before he was even charged with the infamous crime against nature offense, and such credit was not allowed on resentencing. State v. Brashier, 127 Idaho 730, 905 P.2d 1039 (Ct. App. 1995). See also State v. Brashier, 130 Idaho 112, 937 P.2d 424 (Ct. App. 1997).

Defendant could receive credit against prison time for time served in physical custody awaiting sentencing after his arrest; however, defendant was not entitled to credit against the probationary period for time served in jail. Muchow v. State, 142 Idaho 401, 128 P.3d 938 (2006).

Regardless of whether there were errors in the modified sentence, that was the sentence that the Idaho department of correction (IDOC) was charged with administering unless or until the sentence had been corrected by the sentencing court or by an appellate court through proper judicial proceedings; consequently, the magistrate’s order dismissing the inmate’s petition for writ of habeas corpus was reversed, and the IDOC was directed to apply credit to the inmate’s escape sentence. Fullmer v. Collard, 143 Idaho 171, 139 P.3d 773 (Ct. App. 2006).

Defendant was entitled to credit on his possession of methamphetamine sentence for his incarceration from the date of the service of a bench warrant until the entry of an order revoking probation, because (1) when defendant was arrested on a bench warrant for a probation violation and the probation was revoked, the time of defendant’s sentence was to count from the date of service of such bench warrant, and (2) while credit was applied to defendant’s delivery of methamphetamine sentence, granting credit on each sentence from the date the warrant was served would not give defendant credit against his prison sentences for more time than he actually served in the county jail because concurrent sentences were imposed. State v. McCarthy, 145 Idaho 397, 179 P.3d 360 (Ct. App. 2008). A district court is not bound to accept either party’s calculations of the appropriate credit for time already served: rather, it has the duty to determine the accurate credit as reflected by the record. Therefore, there was no due process violation where the district court determined, sua sponte, that it had given defendant too much credit for time served, and the district court did not usurp the role of the prosecutor. State v. Moore, 156 Idaho 17, 319 P.3d 501 (Ct. App. 2014).

This section requires that a court give a defendant credit for any pre-sentence time served, where that incarceration is for the offense, or an included offense, for which the judgment is sentenced. State v. Owens, 158 Idaho 1, 343 P.3d 30 (2015).

The language this section is mandatory and requires that, in sentencing a criminal defendant, the sentencing judge give the appropriate credit for pre-judgment incarceration. State v. Taylor, 160 Idaho 381, 373 P.3d 699 (2016).

The mandate of crediting a defendant for pre-sentencing incarceration in State v. Owens , 158 Idaho 1, 343 P.3d 30 (2015) applies only prospectively and to cases on direct review as of February 9, 2015. State v. Young, 162 Idaho 856, 406 P.3d 868 (2017).

Although a motion under Idaho Criminal Rule 35(c), seeking credit for time served, may be filed at any time, unless the underlying case was on direct appeal at the time the opinion was issued in State v. Brand , 162 Idaho 189, 395 P.3d 809 (2017), the holding in Brand is inapplicable. State v. Brown, 163 Idaho 941, 422 P.3d 1147 (Ct. App. 2018).

District court properly denied defendant’s request for credit for time served, because her changes in position on the issue of credit for time served were inappropriate — in her motion for credit for time served and at the motion hearing, she requested time from the issuance of the arrest warrant, on appeal, she argued that she was entitled to credit for time served from the date of a hold, and during oral arguments, she argued that she was entitled to credit from the date of the service of the first warrant — and to allow defendant to change positions on appeal would be unfair to the state and the district court, since neither of them had the opportunity to address, respond, or consider evidence or argument not presented to it. State v. Gonzalez, 165 Idaho 95, 439 P.3d 1267 (2019).

This section mandates an award of credit for time served when a case involving the same offense is dismissed and later refiled. Where the only difference between the original complaint and the new complaint was a correction in the date for the second prior DUI and a new case number, there is not a new offense, State v. Keeton, — Idaho —, 450 P.3d 311 (2019).

— Federal Charges.

Defendants were not entitled to credit on their state sentences for the time they spent in the custody of federal authorities awaiting disposition of unrelated federal charges, nor entitled to credit on their state sentences for the time they served on the federal sentences while in the custody of federal authorities. State v. Dorr, 120 Idaho 441, 816 P.2d 998 (Ct. App. 1991).

During the time defendants were in the temporary custody of county they were not denied their liberty due to pending state bombing charges, because although they were awaiting disposition of those charges, their liberty already had been denied by the federal courts by virtue of the federal sentences imposed on them; therefore, they were not entitled to credit on their state sentences for the time they served in temporary custody. State v. Dorr, 120 Idaho 441, 816 P.2d 998 (Ct. App. 1991).

— Multiple Courts.

When a defendant is in violation of his federal supervised release, the resulting imprisonment is attributable to the underlying federal offense; therefore, because the twenty months of federal incarceration was not attributable to the state offense, the district court properly denied defendant credit for his incarceration in federal prison. State v. Wilhelm, 135 Idaho 111, 15 P.3d 824 (Ct. App. 2000). — Multiple Courts.

A defendant is entitled to have the time he has already served in confinement ascribed to each charge upon which he receives a sentence to be served concurrently, so that if for some reason one of the charges becomes nullified, the defendant is credited for the proper amount of time on the other charge or charges; however, this section does not allow the defendant to receive credit for more time than he has actually been in confinement, and as a result, the Idaho supreme court has adopted the policy that a defendant should not be allowed to “pyramid” his time when consecutive sentences on multiple counts are imposed and therefore the same logic applies to concurrent sentences. State v. Hernandez, 120 Idaho 785, 820 P.2d 380 (Ct. App. 1991).

Escapee at Large.

It is entirely illogical that a prisoner who escapes from incarceration should be permitted accrual of time toward his sentences while he is at large. Chapa v. State, 115 Idaho 439, 767 P.2d 282 (Ct. App. 1989).

Lenity.

This section is not ambiguous so as to require the application of the doctrine of lenity. State v. Hale, 116 Idaho 763, 779 P.2d 438 (Ct. App. 1989).

Presentence Confinement.

The legislative intent concerning time spent in jail prior to sentencing was to credit that time against the sentence; therefore, a person sentenced prior to the enactment of the crediting provision, but after the repeal of the statute which made no allowance for crediting, is entitled to have his sentence reduced by the length of the pre-sentencing incarceration. State v. Waller, 97 Idaho 377, 544 P.2d 1147 (1976).

Where defendant was convicted of voluntary manslaughter and sentenced to a term not to exceed ten (10) years, defendant was entitled to credit for time spent in pre-trial confinement while awaiting trial on the homicide charge as distinguished from time in jail attributable to prior burglary conviction. State v. Beer, 97 Idaho 684, 551 P.2d 971 (1976).

This section requires that the sentencing judge give credit for presentence incarceration so as to reduce the convicted person’s sentence by the amount of time that person has already spent in confinement, whether or not the person is granted probation. Law v. Rasmussen, 104 Idaho 455, 660 P.2d 67 (1983).

Where defendant was given maximum sentence of five years for offenses of drunk driving and marijuana possession, and was not given any reduction for presentence confinement, the term of imprisonment imposed exceeded the statutory maximum. Law v. Rasmussen, 104 Idaho 455, 660 P.2d 67 (1983).

The trial court did not err in granting the defendant credit for time served in the county jail prior to conviction solely on the petit theft sentence and not also on the consecutive burglary sentence; the legislature, in enacting this section, did not intend that a defendant be given credit more than once for time spent in the county jail awaiting disposition of multiple and separate charges. Matthews v. State, 113 Idaho 83, 741 P.2d 370 (Ct. App. 1987). Defendant was entitled to credit for all time served prior to being placed on probation. State v. Banks, 121 Idaho 608, 826 P.2d 1320 (1992).

Pursuant to this section, prejudgment “house arrest” does not constitute “incarceration”; thus, defendant did not receive sentencing credit for days served under house arrest. State v. Climer, 127 Idaho 20, 896 P.2d 346 (Ct. App. 1995).

Defendant incarcerated for 104 days prior to entry of judgment was entitled to sentencing credit. State v. Akin, 139 Idaho 160, 75 P.3d 214 (Ct. App. 2003).

Absent authority establishing that a Hold Notice Request was the legal basis of incarceration, or evidence showing that the defendant was actually held pursuant to the Hold Notice Request (even without proper authority), its service on the defendant did not implicate this section, and the defendant is not entitled to credit for time served from service of the Request. State v. Barrett, 163 Idaho 449, 414 P.3d 1188 (2018).

Probation.

The district judge did not err in refusing to give the defendant credit for time that he spent on probation before the probation was finally terminated. State v. Sutton, 113 Idaho 832, 748 P.2d 416 (Ct. App. 1987).

Time (34 days) which defendant spent in jail, after imposition of sentence, was condition of probation not required to be credited against sentence. State v. Banks, 121 Idaho 608, 826 P.2d 1320 (1992).

Defendant was not entitled to credit for the 182 days served after probation was ordered regardless of whether it is viewed as pre-judgment or post-judgment confinement, because it was a condition of probation and was voluntarily accepted in order to obtain probation and a withheld judgment. State v. Buys, 129 Idaho 122, 922 P.2d 419 (Ct. App. 1996).

A defendant who chose, upon a probation violation, to serve 365 days in jail as a term and condition of probation in lieu of the previously suspended sentence of two years was not entitled to a time served credit when the defendant later violated probation again and had the suspended sentence of two years reinstated. State v. Jakoski, 132 Idaho 67, 966 P.2d 663 (Ct. App. 1998).

District court erred in granting petitioner credit for time served while on probation because, although he was in the legal custody of the board of correction while on probation, he was only entitled to credit for time served while being incarcerated. Taylor v. State, 145 Idaho 866, 187 P.3d 1241 (Ct. App. 2008).

Retained Jurisdiction Confinement.

Time served while under the trial court’s retained jurisdiction, pursuant to§ 19-2601 should be credited towards sentence under the terms of this section. State v. Machen, 100 Idaho 167, 595 P.2d 316 (1979).

Under this section, a defendant is entitled to credit for any period of incarceration occurring prior to entry of judgment and for any period subsequent to the judgment occurring while the defendant still is under the jurisdiction of the court. State v. Chilton, 116 Idaho 274, 775 P.2d 166 (Ct. App. 1989).

Sentence Reduction.

Defendant had been convicted of DUI, but his sentence had been withheld pending probation. After his third probation violation, his sentence was commuted to a nine-month jail sentence, with no express mention of credit for pre-sentence incarceration. Defendant was, therefore, entitled to credit for all time served pursuant to probation violations, and trial court was without authority to amend the judgment to deny him any portion of that credit. State v. Allen, 144 Idaho 875, 172 P.3d 1150 (Ct. App. 2007). Sentence Reduction.

The fact that probationer absconded from supervision, failed to notify any authorities of his whereabouts, and then committed a felony in California would preclude any consideration of sentence reduction. State v. Teal, 105 Idaho 501, 670 P.2d 908 (Ct. App. 1983).

Test for Credit.

The implementation of subsection (1) involves a two-prong test, which, if satisfied, mandates credit for time served. First, the defendant must have been incarcerated during the intervening period from when the arrest warrant was served and the judgment of conviction was entered; and second, putting aside any alternative reason for the defendant’s incarceration, the relevant offense must be one that provides a basis for the defendant’s incarceration. State v. Brand, 162 Idaho 189, 395 P.3d 809 (2017).

Cross References.

Commission of pardons and parole,§ 20-210 et seq.

Prior Laws.

Former§ 18-310, which comprised Cr. & P. 1864, § 153; R.S., R.C., & C.L., § 7239; C.S., § 8611; I.C.A.,§ 17-310; am. S.L. 1947, ch. 47, § 1, p. 51, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-310, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Amendments.

This section was amended by two 2003 acts which appear to be compatible and have been compiled together.

The 2003 amendment by ch. 113, § 1, substituted “18-1508” for “18-1508(3), (4), (5) and (6)” in subsection (2)(m).

The 2003 amendment by ch. 253, § 1, added the exception in subsection (2)(kk).

This section was amended by two 1993 acts which appear to be compatible and have been compiled together.

The 1993 amendment by ch. 120, § 2, near the beginning of subsection (1) deleted “for any time less than for life” preceding “suspends all the civil rights”; near the middle of subsection (1) added “provided that any such person may bring an action for damages or other relief in the courts of this state or have an action brought against such person; and” following “power during such imprisonment:”; and added “further” preceding “that any such person”.

The 1993 amendment by ch. 184, § 1, near the middle of subdivision (2)(a) added “unlawful possession of a firearm (18-3316, Idaho Code),” preceding “degrees of murder”; and near the end of subdivision (2)(a) added “trafficking (37-2732B, Idaho Code),” preceding “or any person convicted of an attempt”.

The 2016 amendment, by ch. 296, deleted former paragraph (2)(z), male rape, and redesignated the subsequent paragraphs accordingly.

Compiler’s Notes.

Section 2 of S.L. 1981, ch. 182 read: “This act shall apply prospectively and retroactively to all persons convicted of a felony, except treason.” Approved March 31, 1981.

The words enclosed in parentheses so appeared in the law as enacted.

Restoration of Rights.

Restrictions on Convicted Felons.

No specific provision in Idaho’s statutory framework automatically restores a person’s right to bear arms, if that person was convicted of an out-of-state felony. Therefore, dismissal of a charge of unlawful possession of a firearm was not warranted, where defendant’s right to bear arms was not restored under either Nevada or Oregon law, where defendant’s out-of-state felony convictions occurred. State v. Boren, 156 Idaho 498, 328 P.3d 478 (2014). Restrictions on Convicted Felons.

The restrictions of Idaho Evid. R. 609, Idaho R. Crim. P. 32(b)(2) and 46(a)(7) and§ 19-2514 on convicted felons do not overcome the broad effect of subsection (2) of this section restoring the right of convicted felons upon final discharge, and the attendant provisions of Idaho Const., Art. VI, § 3, giving a discharged felon the right to vote and subsection (2) of§ 2-209 giving discharged felons the right to serve on a jury. United States v. Gomez, 911 F.2d 219 (9th Cir. 1990).

C.J.S.

ALR.

Convict’s capacity to make will. 84 A.L.R.3d 479.

Validity, construction, and application of state criminal disenfranchisement provisions. 10 A.L.R.6th 31.

Prior Laws.

Former§ 18-311, which comprised Cr. & P. 1864, § 153; R.S., R.C., & C.L., § 7240; C.S., § 8612; I.C.A.,§ 17-311, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972.

Another former§ 18-311, which comprised I.C.,§ 18-311, as added by S.L. 1971, ch. 143, § 1, was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Compiler’s Notes.

This section, which comprised I.C.,§ 18-311, as added by S.L. 1972, ch. 336, § 1, p. 844; am. S.L. 1982, ch. 368, § 7, p. 919, was repealed by S.L. 1993, ch. 120, § 3, effective July 1, 1993.

Prior Laws.

Former§ 18-312, which comprised R.S., R.C., & C.L., § 7241; C.S., § 8613; I.C.A.,§ 17-312, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal.

Compiler’s Notes.

The phrase “the provisions of the last two (2) preceding sections” refers to the provisions originally set out in§§ 18-310 and 18-311. Section 18-311 was repealed by S.L. 1993, ch. 120, § 3, effective July 1, 1993.

C.J.S.

§ 18-313. Protection of person of convict.

The person of a convict sentenced to imprisonment in the state prison is under the protection of the law, and any injury to his person, not authorized by law, is punishable in the same manner, as if he were not convicted or sentenced.

History.

I.C.,§ 18-313, as added by 1972, ch. 336, § 1, p. 844.

Prior Laws.

Former§ 18-313, which comprised R.S., R.C., & C.L., § 7242; C.S., § 8614; I.C.A.,§ 17-313, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal.

Am. Jur. 2d.

ALR.

Prior Laws.

Former§ 18-314, which comprised R.S., R.C., & C.L., § 7243; C.S., § 8615; I.C.A.,§ 17-314, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal.

C.J.S.

§ 18-315. Omission of public duty.

Every wilful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision shall have been made for the punishment of such delinquency, is punishable as a misdemeanor.

History.

I.C.,§ 18-315, as added by 1972, ch. 336, § 1, p. 844.

Prior Laws.

Former§ 18-315, which comprised R.S., R.C., & C.L., § 6534; C.S., § 8202; I.C.A.,§ 17-1025, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336 in the same words as the section read prior to its repeal.

Am. Jur. 2d.

§ 18-316. Neglect of duty by public administrator. [Repealed.]

Prior Laws.

Former§ 18-316, which comprised S.L. 1881, p. 292, § 5; R.S., R.C., & C.L., § 6511; C.S., § 8179; I.C.A.,§ 17-1002, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal.

Compiler’s Notes.

This section, which comprised I.C.,§ 18-316, as added by S.L. 1972, ch. 336, § 1, p. 844, was repealed by S.L. 1994, ch. 131, § 7, effective July 1, 1994.

Cross References.

Imprisonment for nonpayment of fine,§ 18-303.

Punishment for common law offenses,§ 18-303.

Punishment for felony where punishment not prescribed,§ 18-112.

Punishment for misdemeanor where punishment not prescribed,§ 18-113.

Prior Laws.

Former§ 18-317, which comprised R.S., R.C., & C.L., § 6535; C.S., § 8203; I.C.A.,§ 17-1026, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal.

Cross References.

Adoption,§ 16-1501 et seq.

Contributing to the delinquency of a minor,§ 44-1307.

Employment or permitting of a child in violation of child labor laws,§ 44-1305.

Falsely swearing to child’s age, perjury,§ 44-1305.

Intoxicants, disposing to a minor, felony,§ 23-603.

Mandatory income withholding for child support,§ 32-1201 et seq.

Necessaries, parents liability for,§ 32-1003.

Parent and child,§ 32-1001 et seq.

Parent and child relationship, proceedings for termination of, disclosure of information and records a misdemeanor,§ 16-2013.

Parent responsibility act,§ 32-1301.

Theatrical performance, employment of a child in, misdemeanor,§ 44-1306.

Uniform child custody jurisdiction and enforcement act,§ 32-11-101 et seq.

Prior Laws.

Effective Dates.

Section 14 of S.L. 1972, ch. 336 declared an emergency and provided that the act should take effect on and after April 1, 1972.

Discretion of Court.

In a prosecution of defendant for nonsupport of his minor children, the trial court did not abuse its discretion in allowing the complaining witness to sit at the counsel table with the prosecuting attorney. State v. Shaw, 96 Idaho 897, 539 P.2d 250 (1975).

Duty to Support Child.

It is the obligation of the father to support his minor child. In re Wilson’s Guardianship, 68 Idaho 486, 199 P.2d 261 (1948).

Upon entering a decree for divorce to the wife, the trial court had authority to order the husband, who had paid nothing for the support of his child between the separation of the parties and the trial on the ground that it was not his child, to pay a certain sum to the wife for support of the child in such interval. Voss v. Voss, 91 Idaho 17, 415 P.2d 303 (1966).

Evidence.

In the prosecution of defendant for nonsupport of his three minor children, testimony of a state’s witness that he had called an insurance company and had been told by an anonymous agent that defendant had received payment on a life insurance policy after the death of an older son was hearsay and admission of the testimony over defendant’s objection was error. State v. Shaw, 96 Idaho 897, 539 P.2d 250 (1975).

In General.

The obligation of a father to support his children is statutory; therefore, it stands on an equal with a claim reduced to judgment. Petty v. Petty, 66 Idaho 717, 168 P.2d 818 (1946).

Paragraph (2) does not require that a valid child support order be the basis for a criminal prosecution and such prosecution is not contingent on the defendant’s marital status. State v. Beorchia, 135 Idaho 875, 26 P.3d 603 (Ct. App. 2001).

Jurisdiction.

Where defendant was residing in Nevada at the times relevant to a charge of nonsupport of his minor children in Idaho, the Idaho court had jurisdiction to try defendant. State v. Shaw, 96 Idaho 897, 539 P.2d 250 (1975).

Prima Facie Case.

Since wilfulness of a failure to provide support for minor children is presumed by statute (§ 18-403), in order to establish a prima facie case, the state need only establish the venue of the action, its timeliness, and proof of failure to provide. State v. Shaw, 96 Idaho 897, 539 P.2d 250 (1975).

Wilfulness.

The connection between defendant’s failure to support his minor children and the ultimate fact of wilfulness of such nonsupport was sufficient to justify a jury instruction on the presumption of wilfulness; but, where defendant challenged the wilfulness of his failure to support, the factual issues of whether defendant had raised a reasonable doubt as to his ability to provide and the wilful nature of his nonsupport were for resolution by the jury. State v. Shaw, 96 Idaho 897, 539 P.2d 250 (1975).

Am. Jur. 2d.

C.J.S.

67A C.J.S., Parent and Child, § 1 et seq.

ALR.

Who has custody or control of child within terms of penal statute punishing cruelty or neglect by one having custody or control. 75 A.L.R.3d 933.

Cross References.

Wages of parents, assignment for child support,§ 8-704.

Prior Laws.

Former§ 18-402, which comprised S.L. 1923, ch. 190, § 2, p. 297; I.C.A.,§ 17-1902, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-402, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Discretion of Court.

Although this section provides the sentencing court with sentencing alternatives to imprisonment in cases involving felony nonsupport of children, these alternatives are discretionary in nature, and a sentencing court is not required to recite or check off the sentencing guidelines during sentencing, nor is it even required to give its reasons for imposing the sentence. State v. Beorchia, 135 Idaho 875, 26 P.3d 603 (Ct. App. 2001).

Prior Laws.

Former§ 18-403, which comprised S.L. 1923, ch. 190, § 3, p. 297; I.C.A.,§ 17-1903, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-403, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Jury Issue.

Where a defendant challenged the wilfulness of his failure to support, the factual issues of whether defendant had raised a reasonable doubt as to his ability to provide and the wilful nature of his nonsupport were for resolution by the jury. State v. Shaw, 96 Idaho 897, 539 P.2d 250 (1975).

Prima Facie Case.

Since this section establishes the inference of the wilful nature of a failure to provide support for minor children, in order to establish a prima facie case the state need only establish the venue of the action, its timeliness, and proof of failure to provide. State v. Shaw, 96 Idaho 897, 539 P.2d 250 (1975).

Prior Laws.

Former§ 18-404, which comprised S.L. 1923, ch. 190, § 4, p. 297; I.C.A.,§ 17-1904, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-404, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Cross References.

Generally husband or wife may not testify against one another,§ 19-3002.

Prior Laws.

Former§ 18-405, which comprised S.L. 1923, ch. 190, § 5, p. 297; I.C.A.,§ 17-1905, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-405, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 145, § 5.

Compiler’s Notes.

The term “this act” in the second sentence refers to S.L. 1972, Chapter 336, which is codified throughout Title 18, Idaho Code. The reference probably should be to “this chapter,” being Chapter 4, Title 18, Idaho Code.

Jury Issue.

Where a defendant challenged the wilfulness of his failure to support, the factual issues of whether defendant had raised a reasonable doubt as to his ability to provide and the wilful nature of his nonsupport were for resolution by the jury. State v. Shaw, 96 Idaho 897, 539 P.2d 250 (1975).

Prima Facie Case.

Since this section establishes the inference of the wilful nature of a failure to provide support for minor children, in order to establish a prima facie case the state need only establish the venue of the action, its timeliness, and proof of failure to provide. State v. Shaw, 96 Idaho 897, 539 P.2d 250 (1975).

Compiler’s Notes.

These sections, which comprised I.C.,§§ 18-406 to 18-410, as added by S.L. 1971, ch. 143, § 1, p. 630, were repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Prior Laws.

Former§ 18-501, Abduction for marriage or defilement, which comprised I.C.,§ 18-501, as added by S.L. 1972, ch. 336, § 1, p. 844, was repealed by S.L. 1981, ch. 319, § 1.

Another former§ 18-501, which comprised Cr. & P. 1864, § 53; R.S., R.C., & C.L., § 6769; C.S., § 8266; I.C.A.,§ 17-1605, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-501, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Compiler’s Notes.

The term “this act” refers to S.L. 2011, ch. 324, which is codified as§§ 18-501 to 18-510.

Effective Dates.

Section 3 of S.L. 2011, ch. 324 declared an emergency. Approved April 13, 2011.

Constitutionality.

The Pain-Capable Unborn Child Protection Act,§ 18-501 et seq., is unconstitutional, as it embodies a legislative judgment equating viability with twenty weeks’ gestational age, which the United States supreme court expressly forbids. McCormack v. Hiedeman, 900 F. Supp. 2d 1128 (D. Idaho 2013), aff’d, 788 F.3d 1017 (9th Cir. 2015).

Prior Laws.

Effective Dates.

Section 3 of S.L. 2011, ch. 324 declared an emergency. Approved April 13, 2011.

Prior Laws.

Former§ 18-503, Criminal conspiracy, which comprised I.C.,§ 18-503, as added by S.L. 1971, ch. 143, § 1, p. 630, was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Compiler’s Notes.

The term “this act” in subsection (12) refers to S.L. 2011, ch. 324, which is codified as§§ 18-501 to 18-510.

The words enclosed in parentheses so appeared in the law as enacted.

Effective Dates.

Section 3 of S.L. 2011, ch. 324 declared an emergency. Approved April 13, 2011.

Prior Laws.

Former§ 18-504, Incapacity, irresponsibility or immunity of party to solicitation or conspiracy, which comprised I.C.,§ 18-504, as added by S.L. 1971, ch. 143, § 1, p. 630, was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Effective Dates.

Section 3 of S.L. 2011, ch. 324 declared an emergency. Approved April 13, 2011.

Prior Laws.

Former§ 18-505, Grading of criminal attempt, solicitation and conspiracy — Mitigation in cases of lesser danger — Multiple convictions barred, which comprised I.C.,§ 18-505, as added by S.L. 1971, ch. 143, § 1, p. 630, was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Effective Dates.

Section 3 of S.L. 2011, ch. 324 declared an emergency. Approved April 13, 2011.

Constitutionality.

The Pain-Capable Unborn Child Protection Act,§ 18-501 et seq., is unconstitutional, as it embodies a legislative judgment equating viability with twenty weeks’ gestational age, which the United States supreme court expressly forbids. McCormack v. Hiedeman, 900 F. Supp. 2d 1128 (D. Idaho 2013), aff’d, 788 F.3d 1017 (9th Cir. 2015). This section is facially unconstitutional, because it categorically bans some abortions before viability. McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015).

Standing.

Abortion provider has standing to challenge Idaho’s Pain-Capable Unborn Child Protection Act,§ 18-501 et seq., based on his intention to provide medical abortions through the second trimester outside a clinical or hospital setting and based on his possible prosecution. McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015).

Cross References.

Department of health and welfare,§ 56-1001 et seq..

Penalty for misdemeanor when none prescribed,§ 18-113.

Prior Laws.

Former§ 18-506, Possessing instrument of crime — Weapons, which comprised I.C.,§ 18-506, as added by S.L. 1971, ch. 143, § 1, p. 630, was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Compiler’s Notes.

The phrase “the effective date of this act” in subsection (4) refers to the effective date of S.L. 2011, ch. 324, which was April 13, 2011.

Effective Dates.

Section 3 of S.L. 2011, ch. 324 declared an emergency. Approved April 13, 2011.

Cross References.

Penalty for felony when none prescribed,§ 18-112.

Effective Dates.

Section 3 of S.L. 2011, ch. 324 declared an emergency. Approved April 13, 2011.

Effective Dates.

Section 3 of S.L. 2011, ch. 324 declared an emergency. Approved April 13, 2011.

Constitutionality.

The Pain-Capable Unborn Child Protection Act,§ 18-501 et seq., is unconstitutional, as it embodies a legislative judgment equating viability with twenty weeks’ gestational age, which the United States supreme court expressly forbids. McCormack v. Hiedeman, 900 F. Supp. 2d 1128 (D. Idaho 2013), aff’d, 788 F.3d 1017 (9th Cir. 2015).

Effective Dates.

Section 3 of S.L. 2011, ch. 324 declared an emergency. Approved April 13, 2011.

Compiler’s Notes.

Section 2 of S.L. 2011, ch. 324 provided: “Severability and Construction. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act. Notwithstanding section 18-608, Idaho Code, an abortion that complies with that section but violates the provisions of chapter 5, title 18, Idaho Code, or an otherwise applicable provision of chapter 6, title 18, Idaho Code, or other controlling rule of Idaho law shall be deemed unlawful as provided in such section, provision or rule. An abortion that complies with the provisions of chapter 5, title 18, Idaho Code, but violates the provisions of section 18-608, Idaho Code, or an otherwise applicable provision of chapter 6, title 18, Idaho Code, or other controlling rule of Idaho law shall be deemed unlawful as provided in such section, provision or rule. If some or all of the provisions of chapter 5, title 18, Idaho Code, are ever temporarily or permanently restrained or enjoined by judicial order, chapter 5, title 18, Idaho Code, chapter 6, title 18, Idaho Code, and other controlling rules of Idaho law shall be enforced as though such restrained or enjoined provisions had not been adopted, provided however, that whenever such temporary or permanent restraining order or injunction is stayed or dissolved, or otherwise ceases to have effect, such provisions shall have full force and effect.”

Effective Dates.

Section 3 of S.L. 2011, ch. 324 declared an emergency. Approved April 13, 2011.

Prior Laws.

Former§ 18-601, which comprised Cr. & P. 1864, § 42; R.S., R.C., & C.L., § 6794; C.S., § 8281; I.C.A.,§ 17-1810, was transferred to I.C.,§ 18-1505, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-601, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-601, as added by S.L. 1972, ch. 336, § 1, p. 844, which was repealed in turn by S.L. 1973, ch. 197, § 2. For present comparable law, see§ 18-605.

Compiler’s Notes.

Former§ 18-601 was amended and redesignated as§ 18-602 by S.L. 2001, ch. 273, § 2.

Planned Parenthood of Southeastern PA v. Casey , referenced in this section, is reported at 505 U.S. 833, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992).

A.L.R.

§ 18-602. Legislative findings and intent.

1. The legislature finds:
   1. That children have a special place in society that the law should reflect;
   2. That minors too often lack maturity and make choices that do not include consideration of both immediate and long-term consequences;
   3. That the medical, emotional and psychological consequences of abortion and childbirth are serious and can be lasting, particularly when the patient is immature;
   4. That the capacity to become pregnant and the capacity for mature judgment concerning the wisdom of bearing a child or of having an abortion are not necessarily related;
   5. That parents, when aware that their daughter is pregnant or has had an abortion are in the best position to ensure that she receives adequate medical attention during her pregnancy or after her abortion;
   6. That except in rare cases, parents possess knowledge regarding their child which is essential for a physician to exercise the best medical judgment for that child;
   7. That when a minor is faced with the difficulties of an unplanned pregnancy, the best interests of the minor are always served when there is careful consideration of the rights of parents in rearing their child and the unique counsel and nurturing environment that parents can provide;
   8. That informed consent is always necessary for making mature health care decisions.
2. It is the intent of the legislature in enacting section 18-609A, Idaho Code, to further the following important and compelling state interests recognized by the United States supreme court in:
   1. Protecting minors against their own immaturity;
   2. Preserving the integrity of the family unit;
   3. Defending the authority of parents to direct the rearing of children who are members of their household;
   4. Providing a pregnant minor with the advice and support of a parent during a decisional period;
   5. Providing for proper medical treatment and aftercare when the life or physical health of the pregnant minor is at serious risk in the rare instance of a sudden and unexpected medical emergency.

History.

I.C.,§ 18-601, as added by 2000, ch. 7, § 1, p. 10; am. and redesig. 2001, ch. 273, § 2, p. 996.

Prior Laws.

Compiler’s Notes.

This section was formerly compiled as§ 18-601.

This section was amended by S.L. 2005, ch. 393, § 1, effective upon notification to the Idaho code commission that certain conditions had been met. S.L. 2005, chapter 393 was subsequently repealed by S.L. 2007, ch. 193, § 1, effective March 27, 2007.

A.L.R.

§ 18-603. Advertising medicines or other means for preventing conception, or facilitating miscarriage or abortion.

Every person, except licensed physicians of this state and those licensed or registered health care providers hereinafter referred to acting under their direct supervision or medical order, who wilfully publishes any notice or advertisement of any medicine or means for producing or facilitating a miscarriage or abortion, or for the prevention of conception, or who offers his services by any notice, advertisement, or otherwise to assist in the accomplishment of any such purpose, is guilty of a felony. A licensed physician or licensed or registered health care provider acting at his direction or medical order may lawfully provide examinations, prescriptions, devices and informational materials regarding prevention of conception to any person requesting the same who, in the good faith judgment of the physician or such provider, is sufficiently intelligent and mature to understand the nature and significance thereof.

History.

I.C.,§ 18-603, as added by 1972, ch. 336, § 1 p. 844; am. 1974, ch. 69, § 1, p. 1150.

Cross References.

Contraceptive and prophylactics, violation of law governing, misdemeanor,§ 39-804.

Penalty for felony when not otherwise provided,§ 18-112.

Prior Laws.

Former§ 18-603, which comprised R.S., R.C., & C.L., § 6843; C.S., § 8306; I.C.A.,§ 17-2103, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-603, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1, restoring the subject matter contained in the section as it existed prior to its repeal by S.L. 1971, ch. 143, § 5.

Effective Dates.

Section 14 of S.L. 1972, ch. 336 declared an emergency and provided that the act should take effect on and after April 1, 1972.

Am. Jur. 2d.

C.J.S.

Cross References.

Department of health and welfare,§ 56-1001 et seq.

Department of health and welfare funds used for abortion, when,§ 56-209c.

Induced abortion, reporting of to vital statistics unit,§ 39-261.

Prior Laws.

Former§ 18-604, which comprised I.C.,§ 18-604, as added by S.L. 1971, ch. 143, § 1, was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Amendments.

The 2006 amendment, by ch. 438, substituted the current definition for “abortion” for the former which read “the intentional termination of human pregnancy for purposes other than delivery of a viable birth”; under the definition for “informed consent” deleted “each fact pertinent to making the decision. Facts pertinent to making the decision shall include, but not be limited to:”; and added the definitions for “department”, “emancipated”, “fetus”, “medical emergency”, “minor”, and “pregnant” and “pregnancy”; and redesignated the remaining subsections accordingly.

Legislative Intent.

Compiler’s Notes.

The amendment of this section by section 2 of S.L. 2005, ch. 393, contingently effective upon certain actions by the Attorney General and Secretary of State, was repealed by section 2 of S.L. 2006, ch. 438, before ever going into effect.

The words “this act” in the introductory paragraph refer to S.L. 1973, ch. 197, compiled as§§ 18-604 to 18-608, 18-609, 18-610, and 18-612.

Viability.

The definition of viability in this section departs from the definition provided by the United States supreme court. Should a case arise under this portion of the statute, a court might conclude there is a difference between “a realistic possibility” of maintaining and nourishing a life outside the womb (the supreme court definition) and a “potential” ability to live outside the womb (this section’s definition). A broader definition of viability which correspondingly narrows or restricts the woman’s ability to obtain an abortion prior to viability conflicts with the supreme court’s past ruling.OAG 98-1.

C.J.S.

§ 18-605. Unlawful abortions — Procurement of — Penalty.

1. Every person not licensed or certified to provide health care in Idaho who knowingly, except as permitted by this chapter, provides, supplies or administers any medicine, drug or substance to any woman or uses or employs any instrument or other means whatever upon any then-pregnant woman with intent thereby to cause or perform an abortion shall be guilty of a felony and shall be fined not to exceed five thousand dollars ($5,000) and/or imprisoned in the state prison for not less than two (2) and not more than five (5) years.
2. Any person licensed or certified to provide health care pursuant to title 54, Idaho Code, and who knowingly, except as permitted by the provisions of this chapter, provides, supplies or administers any medicine, drug or substance to any woman or uses or employs any instrument or other means whatever upon any then-pregnant woman with intent to cause or perform an abortion shall:
   1. For the first violation, be subject to professional discipline and be assessed a civil penalty of not less than one thousand dollars ($1,000), payable to the board granting such person’s license or certification;
   2. For the second violation, have their license or certification to practice suspended for a period of not less than six (6) months and be assessed a civil penalty of not less than two thousand five hundred dollars ($2,500), payable to the board granting such person’s license or certification; and
   3. For each subsequent violation, have their license or certification to practice revoked and be assessed a civil penalty of not less than five thousand dollars ($5,000), payable to the board granting such person’s license or certification.
3. Any person who is licensed or certified to provide health care pursuant to title 54, Idaho Code, and who knowingly violates the provisions of this chapter is guilty of a felony punishable as set forth in subsection (1) of this section, separate from and in addition to the administrative penalties set forth in subsection (2) of this section.

History.

1973, ch. 197, § 4, p. 442; am. 2001, ch. 277, § 1, p. 1000; am. 2007, ch. 193, § 3, p. 565.

Prior Laws.

Former§ 18-605, which comprised I.C.,§ 18-605, as added by S.L. 1971, ch. 143, § 1, was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Amendments.

Compiler’s Notes.

The 2007 amendment, by ch. 193, in subsection (1) and in the introductory paragraph in subsection (2), inserted “knowingly” near the beginning. Compiler’s Notes.

This section was amended by S.L. 2005, ch. 393, § 3, effective upon notification to the Idaho code commission that certain conditions had been met. S.L. 2005, Chapter 393 was subsequently repealed by S.L. 2007, ch. 193, § 1, effective March 27, 2007.

Effective Dates.

Section 8 of S.L. 2007, ch. 193 declared an emergency. Approved March 27, 2007.

Constitutionality.

This section, in conjunction with§ 18-608(1), is unconstitutional, as the terms “properly” and “satisfactory” in the latter section are ambiguous terms and there was no mention or definition of the community standard of care. McCormack v. Hiedeman, 900 F. Supp. 2d 1128 (D. Idaho 2013), aff’d, 788 F.3d 1017 (9th Cir. 2015).

This section, in conjunction§ 18-608(2), is unconstitutional, as the second trimester hospitalization requirement places a substantial obstacle in the path of women seeking an abortion. McCormack v. Hiedeman, 900 F. Supp. 2d 1128 (D. Idaho 2013), aff’d, 788 F.3d 1017 (9th Cir. 2015).

Section 18-608(1), in conjunction with this section, is unconstitutionally vague because the terms “properly” and “satisfactory,” as used in§ 18-608(1), lack precise definition and subject physicians to sanctions based not on their own objective behavior, but on the subjective viewpoints of others. Assuming that the terms “properly” and “satisfactory” are severable, striking those words from this section would not remedy the constitutional infirmities of the section. McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015).

Initiative Title.

Where attorney general’s short title failed to capture the distinctive characteristics of the proposed initiative in that it inaccurately informed voters that the purpose of the initiative was to create a law prohibiting post-viability abortions, with exceptions, but, in fact, did not create a new law but rather deleted an exception to the existing ban on post-viability abortions, added a new exception to the ban, created new civil causes of action, new criminal liabilities and repealed existing criminal penalties against pregnant women who violated the chapter, the short title was not the product of an analysis of the initiative that distinguished the initiative from existing abortion laws and, as such, it required redrafting. Buchin v. Lance, 128 Idaho 266, 912 P.2d 634 (1995).

Prosecution.

The provisions of§§ 31-2227, 31-2604 and 50-208A are fully applicable to the provisions of this section,§ 18-606 and§ 18-607 making certain violations criminal offenses. Thus, prosecutions for unlawful abortions under this section and§ 18-606, which are declared to be felonies, would be the responsibility of the prosecuting attorney.OAG 93-1.

Am. Jur. 2d.

C.J.S.

ALR.

Entrapment defense in sex prosecutions. 12 A.L.R.4th 413.

Women’s reproductive rights concerning abortion, and governmental regulation thereof — Supreme court cases. 20 A.L.R. Fed. 2d 1.

Prior Laws.

Former§ 18-606, which comprised I.C.,§ 18-606, as added by S.L. 1971, ch. 143, § 1, was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Compiler’s Notes.

The words “this act” refer to S.L. 1973, ch. 197 compiled herein as§§ 18-604 to 18-608, 18-609, 18-610, and 18-612.

The bracketed insertion in subsection (1) was added by the compiler to conform to the statutory citation style.

Initiative Title.

Mootness.

Where attorney general’s short title failed to capture the distinctive characteristics of the proposed initiative in that it inaccurately informed voters that the purpose of the initiative was to create a law prohibiting post-viability abortions, with exceptions, but, in fact, did not create a new law but rather deleted an exception to the existing ban on post-viability abortions, added a new exception to the ban, created new civil causes of action, new criminal liabilities and repealed existing criminal penalties against pregnant women who violated the chapter, the short title was not the product of an analysis of the initiative that distinguished the initiative from existing abortion laws and, as such, it required redrafting. Buchin v. Lance, 128 Idaho 266, 912 P.2d 634 (1995). Mootness.

Patient’s challenge to Idaho’s Pain-Capable Unborn Child Protection Act,§ 18-501 et seq., was not moot because her claims fell under the voluntary cessation, collateral legal consequences and capable of repetition, yet evading review exceptions. McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015).

Standing.

Patient has standing to challenge the enforcement of Idaho’s Pain-Capable Unborn Child Protection Act,§ 18-501 et seq., against her for her past alleged abortion, based on the lingering risk of prosecution. McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015).

Undue Burden.

This section, with§ 18-608(1) and (2), place an undue burden on a woman’s ability to terminate a pre-viability pregnancy. McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012).

This section constitutes an undue burden on a woman’s constitutional right to terminate her pregnancy before viability, by requiring her to police her provider’s compliance with Idaho’s regulations. McCormack v. Hiedeman, 900 F. Supp. 2d 1128 (D. Idaho 2013), aff’d, 788 F.3d 1017 (9th Cir. 2015).

Prosecution.

The provisions of§§ 31-2227, 31-2604 and 50-208A are fully applicable to the provisions of§ 18-605, this section and§ 18-607 making certain violations criminal offenses. Thus, prosecutions for unlawful abortions under Idaho Code§ 18-605 and this section, which are declared to be felonies, would be the responsibility of the prosecuting attorney.OAG 93-1.

A.L.R.

§ 18-607. Abortifacients — Unauthorized sale.

A person who sells, offers to sell, possesses with intent to sell, advertises, or displays for sale anything specially designed to terminate a pregnancy, or held out by the actor as useful for that purpose, commits a misdemeanor, unless:

1. The sale, offer or display is to a physician or druggist or to an intermediary in a chain of distribution to physicians or druggists; or
2. The same is made upon prescription or order of a physician; or
3. The possession is with intent to sell as authorized in paragraphs (1) and (2) of this section; or
4. The advertising is addressed to persons named in paragraph (1) of this section and confined to trade or professional channels not likely to reach the general public.

History.

1973, ch. 197, § 6, p. 442.

Prior Laws.

Former§ 18-607, which comprised I.C.,§ 18-607, as added by S.L. 1971, ch. 143, § 1, was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Prosecution.

The provisions of§§ 31-2227, 31-2604 and 50-208A are fully applicable to the provisions of§§ 18-605, 18-606 and this section making certain violations criminal offenses. Thus, prosecutions for unlawful abortions under Idaho Code§§ 18-605 and 18-606, which are declared to be felonies, would be the responsibility of the prosecuting attorney.OAG 93-1.

Compiler’s Notes.

The words “this act” in the introductory paragraph refer to S.L. 1973, ch. 197 compiled herein as§§ 18-604 to 18-608, 18-609, 18-610, and 18-612.

Constitutionality.

This section, in conjunction with§ 18-605, is unconstitutional, as the terms “properly” and “satisfactory” in this section are ambiguous terms and there was no mention or definition of the community standard of care. McCormack v. Hiedeman, 900 F. Supp. 2d 1128 (D. Idaho 2013), aff’d, 788 F.3d 1017 (9th Cir. 2015).

Subsection (1), in conjunction with§ 18-605, is unconstitutionally vague because the terms “properly” and “satisfactory,” as used in subsection (1), lack precise definition and subject physicians to sanctions based not on their own objective behavior, but on the subjective viewpoints of others. Assuming that the terms “properly” and “satisfactory” are severable, striking those words from this section would not remedy the constitutional infirmities of the section. McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015).

Standing.

Abortion provider has standing to challenge Idaho’s Pain-Capable Unborn Child Protection Act,§ 18-501 et seq., based on his intention to provide medical abortions through the second trimester outside a clinical or hospital setting and based on his possible prosecution. McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015).

Undue Burden.

Subsections (1) and (2) of this section, with§ 18-606, place an undue burden on a woman’s ability to terminate a pre-viability pregnancy. McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012).

Subsection (2) of this section is facially unconstitutional, because it places an undue burden on a woman’s ability to obtain an abortion by requiring hospitalizations for all second-trimester abortions. McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015).

Constitutionality.

The United States supreme court’s recent rejection of Roe v. Wade’s (410 U.S. 113 (1973)) trimester approach to abortion issues in Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S. Ct. 2791 (1992) does not affect the constitutionality of this section. However, regardless of whether a trimester or viability approach is used, subdivision (2) of this section, which requires that second-trimester abortions be performed in a hospital, is unconstitutional.OAG 93-1.

While this section contains an exception to the third-trimester abortion prohibition, if the life of the mother is endangered; it does not, however, contain an exception if her health is jeopardized. The omission of any health exception in Idaho’s ban on third-trimester abortions creates a constitutional problem.OAG 98-1.

Legislative Intent.

The legislative intent and purpose behind§ 18-609 was to provide legal protection from civil liability for physicians performing abortions in compliance with both this section and§ 18-609. Further, it was not the intent and purpose of the legislature to impose criminal sanctions against a physician for non-compliance with§ 18-609.OAG 93-1.

Viability.

The definition of viability in§ 18-604 departs from the definition provided by the United States supreme court. Should a case arise under this portion of the statute, a court might conclude there is a difference between “a realistic possibility” of maintaining and nourishing a life outside the womb (the supreme court definition) and a “potential” ability to live outside the womb (the§ 18-604 definition). A broader definition of viability which correspondingly narrows or restricts the woman’s ability to obtain an abortion prior to viability conflicts with the supreme court’s past ruling.OAG 98-1.

Cross References.

Department of health and welfare,§ 56-1001 et seq.

Amendments.

The 2006 amendment, by ch. 438, in subsection (2) substituted “shall publish easily comprehended, nonmisleading and medically accurate printed material” for “shall publish, after consultation with interested parties, easily comprehended printed material”, substituted “at no expense to physicians, hospitals of other facilities providing abortion and abortion-related services” for “to be made available at the expense of the physician, hospital or other facility providing the abortion”, and, at the end of subsection (b), deleted “brain and heart function, and the presence of external members and internal organs during the applicable stages of development”; in subsection (3), added the exception at the beginning, deleted “confirms or verifies a positive pregnancy test and informs the pregnant patient of a positive pregnancy test, and” preceding “certifies in writing”, and deleted “if reasonably possible” preceding “at least twenty-four (24) hours”; in subsection (4) deleted the former first sentence regarding the disclosure of material not being required and substituted “denoting the medical emergency” for “which explains the specific circumstances”; and added subsection (6) and made stylistic changes.

The 2007 amendment, by ch. 224, in subsection (3), added the fourth through sixth sentences.

The 2008 amendment, by ch. 348, added subsection (3) and redesignated the subsequent subsections accordingly.

The 2016 amendment, by ch. 283, added paragraphs (2)(d) and (2)(e) and present subsection (5) and redesignated the subsequent subsections accordingly. The 2018 amendment, by ch. 159, substituted “observe the heartbeat” for “hear the heart tone” in the first sentence in paragraph (2)(e), added paragraph (2)(f); in subsection (5), substituted “heartbeat monitoring” for “heart tone monitoring” and “or observe” for “or listen to” in the first sentence and added the reference to paragraph (f) in the second sentence.

Compiler’s Notes.

The words “this act” in subsection (1) refer to S.L. 1973, Chapter 197, compiled herein as§§ 18-604 to 18-608, 18-609, 18-610, and 18-612.

The words “this act” at the end of subsection (4) refers to S.L. 1983, Chapter 149, which is codified as this section only.

The vital statistics unit of the department of health and welfare, referred to in subsection (9), is the Idaho bureau of vital records and health statistics. See http://healthand welfare.idaho.gov/Health/VitalRecordsand HealthStatistics/tabid/1504/Default.aspx .

Section 2 of S.L. 2018, ch. 159 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 2 of S.L. 2008, ch. 348 provided that the act should take effect on and after January 1, 2009, and that the Department of Health and Welfare shall have authority to and shall place a notice on its website no later than November 30, 2008, of the address of the website required by the act and shall provide notice to the State Board of Medicine of the Department of Health and Welfare’s website address required by the act.

Constitutionality.

Idaho’s informed consent provision contained in this section does not violate the United States Constitution.OAG 93-1.

Purpose.

The legislative intent and purpose behind this section was to provide legal protection from civil liability for physicians performing abortions in compliance with both§ 18-608 and this section. Further, it was not the intent and purpose of the legislature to impose criminal sanctions against a physician for non-compliance with this section.OAG 93-1.

ALR.

Validity of state “informed consent” statutes by which providers of abortions are required to provide patient seeking abortion with certain information. 119 A.L.R.5th 315.

Prior Laws.

Former§ 18-609A, which comprised I.C.,§ 18-609A, as added by S.L. 2000, ch. 7, § 5, p. 10; am. S.L. 2001, ch. 277, § 2, p. 1000; am. S.L. 2005, ch. 391, § 52, p. 1263, was repealed by S.L. 2007, ch. 193, § 4, effective March 27, 2007.

Amendments.

The 2010 amendment, by ch. 352, inserted “and (2)” in paragraph (7)(a).

The 2015 amendment, by ch. 141, substituted “74-110” for “9-340G” in the fourth sentence of subsection (4).

Compiler’s Notes.

This section was amended by S.L. 2005, ch. 393, § 4, effective upon notification to the Idaho code commission that certain conditions had been met. S.L. 2005, Chapter 393 was subsequently repealed by S.L. 2007, ch. 193, § 1, effective March 27, 2007.

Effective Dates.

Section 8 of S.L. 2007, ch. 193 declared an emergency. Approved March 27, 2007.

Decisions Under Prior Law

Constitutionality.

Definition of “medical emergency” in Idaho’s law governing minors’ access to abortion services, which allows an abortion without proper consent only when the minor has a medical condition that is sudden, unexpected, and abnormal, is unconstitutionally narrow, and, without an adequate medical exception, the parental consent statute is per se unconstitutional; no part is salvageable, through a limiting construction, or by operation of the meticulous severability provision under§ 18-615. Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir. 2004), cert. denied, 544 U.S. 948, 125 S. Ct. 1694, 161 L. Ed. 2d 524 (2005).

By forcing a minor to either obtain the consent of neglectful or abusive parents or go through a consent bypass process that would surely identify her close-in-age boyfriend who impregnated her during consensual sex, exposing him to a criminal charge, the former consent provisions for minors, impermissibly placed an undue burden on the minor’s right to choose. Planned Parenthood of Idaho, Inc. v. Wasden, 376 F. Supp. 2d 1012 (D. Idaho 2005).

RESEARCH REFERENCES

ALR.

Cross References.

Administrative director of courts,§§ 1-611, 1-612.

Effective Dates.

Section 8 of S.L. 2007, ch. 193 declared an emergency. Approved March 27, 2007.

Amendments.

The 2010 amendment, by ch. 352, inserted “and (2)” in paragraph (1)(a)(v).

Compiler’s Notes.

The bureau of vital statistics of the department of health and welfare, referred to in the introductory paragraph in subsection (1) and near the end of subsection (2), is the Idaho bureau of vital records and health statistics. See http://healthandwelfare.idaho.gov/Health/ VitalRecordsandHealthStatistics/ tabid/504/Default.aspx .

Effective Dates.

Section 8 of S.L. 2007, ch. 193 declared an emergency. Approved March 27, 2007.

Prior Laws.

Former§ 18-611, which comprised S.L. 1973, ch. 197, § 10, p. 442, was repealed by S.L. 2000, ch. 7, § 6, effective July 1, 2000.

Amendments.

The 2011 amendment, by ch. 225, added subsection (7) and redesignated former subsection (7) as subsection (8).

Federal References.

Title VII of the federal civil rights act of 1964, referred to in paragraph (1)(h), is codified as 42 U.S.C.S. § 2000e et seq.

Compiler’s Notes.

The medical consent and natural death act, referred to in subsection (7), is codified as chapter 45, title 39, Idaho Code.

Section 2 of S.L. 2010, ch. 127 provides: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

S.L. 2010, chapter 127 became law without the signature of the governor, effective July 1, 2010.

Compiler’s Notes.

This section, which appeared from its context to have been intended to take effect at the same time as§§ 18-604 to 18-611, was nonetheless included among those sections which, under section 14 of S.L. 1973, ch. 197 (§ 18-613 now repealed), should not have been in full force and effect until the date of a proclamation by the governor that certain specified events had occurred. Sections 12 and 13 of S.L. 1973, as set out below, appeared to be similarly affected by the§ 18-613 (now repealed) provisions regarding effective dates. However,§ 18-613 was repealed by § 1 of S.L. 1990, ch. 207, effective July 1, 1990.

Section 12 of S.L. 1973, ch. 197 read: “If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity thereof shall not affect any other provision or application of this act which can be given effect.”

Section 13 of S.L 1973, ch. 197 read: “An emergency existing therefor, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval.”

The words “this act” near the beginning of this section refer to S.L. 1973, ch. 197 compiled as§§ 18-604 to 18-608, 18-609, 18-610, and 18-612.

Cross References.

State board of medicine,§ 54-1805 et seq.

Prior Laws.

Former§ 18-613, which comprised S.L. 1973, ch. 197, § 14, p. 442, was repealed by S.L. 1990, ch. 207, § 1.

Amendments.

The 2019 amendment, by ch. 60, substituted “physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself” for “illness or injury” at the end of subsection (1); in subsection (2), added present paragraph (a), rewrote former paragraphs (a) and (b) as present paragraph (b), and substituted “provisions” for “prohibitions” near the end of paragraph (c); in subsection (3), paragraph (a), inserted “partial-birth” near the beginning of the first sentence, and rewrote the last two sentences, which formerly read: “Provided however, that a civil action by the plaintiff father is barred if the pregnancy resulted from criminal conduct by the plaintiff father or he consented to the abortion. Further, a civil action by the plaintiff maternal grandparents is barred if the pregnancy is the result of criminal conduct by a maternal grandparent or a maternal grandparent consented to the abortion”; and in subsection (4), rewrote paragraph (a), which formerly read: “Hearing. A physician accused of violating this section may request a hearing before the state board of medicine to determine whether the mother’s life was endangered by a physical disorder, illness or injury and therefor whether performing the abortion was necessary to save the mother’s life”, and substituted “paragraph (a) of this subsection” for “subsection (4) of this section” near the middle of the first sentence in paragraph (b).

Effective Dates.

Section 2 of S.L. 1998, ch. 34 declared an emergency and provided that this act shall be in full force and effect on and after its passage and approval. Approved March 16, 1998.

ALR.

§ 18-614. Defenses to prosecution.

1. No physician shall be subject to criminal or administrative liability for causing or performing an abortion upon a minor in violation of subsection (1) of section 18-609A, Idaho Code, if prior to causing or performing the abortion the physician obtains either positive identification or other documentary evidence from which a reasonable person would have concluded that the woman seeking the abortion was either an emancipated minor or was not then a minor and if the physician retained, at the time of receiving the evidence, a legible photocopy of such evidence in the physician’s office file for the woman.
2. For purposes of this section, “positive identification” means a lawfully issued state, district, territorial, possession, provincial, national or other equivalent government driver’s license, identification card or military card, bearing the person’s photograph and date of birth, the person’s valid passport or a certified copy of the person’s birth certificate.

History.

I.C.,§ 18-614, as added by 2001, ch. 277 § 4, p. 1000; am. 2007, ch. 193, § 6, p. 565.

Prior Laws.

Former section 18-614, which comprised I.C.,§ 18-614, as added by S.L. 2000, ch. 7, § 7, p. 10, was repealed by S.L. 2001, ch. 277, § 3.

Amendments.

The 2007 amendment, by ch. 193, in subsection (1), deleted “of any provision” preceding “of subsection (1)” and the last sentence, which formerly read: “This defense is an affirmative defense that shall be raised by the defendant and is not an element of any crime or administrative violation that must be proved by the state”; deleted former subsection (2) and subsection (3), which pertained to medical emergencies; and redesignated former subsection (4) as (2).

Compiler’s Notes.

This section was amended by S.L. 2005, ch. 393, § 5, effective upon notification to the Idaho code commission that certain conditions had been met. S.L. 2005, Chapter 393 was subsequently repealed by S.L. 2007, ch. 193, § 1, effective March 27, 2007.

Section 7 of S.L. 2007, ch. 193 provided “Severability. If any one or more provision, section, subsection, sentence, clause, phrase or word of this act or the application thereof to any person or circumstance, or application to any other section of Idaho Code is found to be unconstitutional, the same is hereby declared to be severable and the balance of this act shall remain effective notwithstanding such unconstitutionality. The Legislature hereby declares that it would have passed this act, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more provision, section, subsection, sentence, clause, phrase or word be declared unconstitutional.”

Prior Laws.

Another former§ 18-615, which comprised S.L. 1973, ch. 197, § 16, p. 442, was repealed by S.L. 1990, ch. 207, § 1.

Compiler’s Notes.

Former§ 18-615 was amended and redesignated as§ 18-616 by S.L. 2008, ch. 388, § 2.

Amendments.

The 2008 amendment, by ch. 388, redesignated the section from§ 18-615.

Unseverability.

Definition of “medical emergency” in Idaho’s law governing minors’ access to abortion services,§ 18-609A, which allowed an abortion without proper consent only when the minor has a medical condition that is sudden, unexpected, and abnormal, is unconstitutionally narrow, and without an adequate medical exception, the parental consent statute is per se unconstitutional; further, no part is salvageable, through a limiting construction, or by operation of the meticulous severability provision under this section. Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir. 2004), cert. denied, 544 U.S. 948, 125 S. Ct. 1694, 161 L. Ed. 2d 524 (2005).

Amendments.

The 2017 amendment, by ch. 242, in subsection (2), deleted former paragraph (e), which read: “Has examined in person the woman to whom the abortifacient is administered to determine the medical appropriateness of such administration and has determined that the abortifacient is sufficiently safe for use in the gestational age at which it will be administered; and”, and redesignated former paragraph (f) as present paragraph (e).

Legislative Intent.

Section 1 of S.L. 2017, ch. 242 provided: “Legislative Findings. (1) Exercising its proper legal authority, as defended by the U.S. Supreme Court in Gonzales v. Carhart , 550 U.S. 124, 145 (2007), the Legislature previously found and further finds, and reasserts, that women and girls are best served by an in-person examination and counseling by a qualified physician prior to undergoing a chemical abortion;

“(2) The Legislature previously found and further finds that the chemical abortion procedure presents significant health risks to women and girls undertaking the procedure; evidence presented to the Legislature in 2015 showed that the manufacturer of Mifeprex conceded before the U.S. Food and Drug Administration that ‘nearly all of the women who receive Mifeprex and misoprostol will report adverse reactions, and many can be expected to report more than one such reaction.’ (See 2004 Mifeprex Final Printed Labeling);

“(3) In 2015, the Legislature received evidence that the U.S. Food and Drug Administration published a study in April of 2011 reporting that it had knowledge of 2,207 adverse reactions in treatments using mifepristone to accomplish a chemical abortion. Those reactions included 14 deaths, 612 hospitalizations (58 for ectopic pregnancies), 339 blood transfusions and 256 infections. (FDA, Mifepristone U.S. Postmarketing Adverse Events Summary through April 30, 2011);

“(4) The Legislature, during extensive hearings in the 2015 legislative session, received additional testimony and evidence of a peer-reviewed study finding that the overall occurrence of health problems and complications was four times higher for women and girls undergoing chemical abortions as compared to those choosing surgical abortions. (N. Niinim/Uaki et al., Immediate Complications After Medical Compared With Surgical Termination of Pregnancy, Obstetrics & Gynecology 114:795, October 2009);

“(5) The Legislature received evidence that, by the terms of the U.S. Food and Drug Administration’s 2004 Final Printed Labeling for Mifeprex, use of the drug to induce a chemical abortion is ‘contraindicated’ if a patient does not have adequate access to medical facilities for the emergency treatment of incomplete abortion, hemorrhaging and other life-threatening complications; further testimony before the Senate and House of Representatives State Affairs Committees raised public health concerns about the large portion of Idaho’s population residing more than one hour’s drive away from medical facilities equipped to deal with such emergencies;

“(6) During public hearings on HB154 (Chapter 270, 2015 Session Laws), legislators received testimony that Planned Parenthood did not offer chemical abortions using the telemedicine method in Idaho, nor did it have plans to do so; moreover, legislators received testimony that Planned Parenthood had not used the telemedicine procedure within the state in the prior 15 years during which the RU-486 regimen had been legalized by the U.S. Food and Drug Administration for use as an abortifacient. (House of Representatives State Affairs Committee Minutes, February 23, 2015; Senate State Affairs Committee Minutes, March 16, 2015);

“(7) And, operating under its constitutional authority, as defended by the U.S. Supreme Court in Harris v. McRae , 448 U.S. 297, 325 (1980), the Legislature found and further finds that ‘abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life’;

“(8) The Legislature found and further finds that chemical abortions performed via telemedicine methods undermine the creation of a healthy doctor-patient relationship;

“(9) The Legislature therefore concludes, and hereby reasserts, that chemical abortions performed by remote teleconferencing methods represent substandard medical care and that women and girls undergoing abortion deserve and require a higher level of professional medical care; “(10) The Legislature has been provided a copy of the Stipulated Facts in Planned Parenthood of the Great Northwest and the Hawaiian Islands v. Lawrence G. Wasden, et al. , Case No. 1:15-cv-00557-BLW. The Legislature asserts that many of the stipulated facts and characterizations of political purposes are contrary to the Legislature’s actual prior findings and health-care concerns for women and girls. The Stipulated Facts does not reflect or accurately state the testimony before the Senate and House of Representatives State Affairs Committees and is not an accurate reflection of the Legislature’s intent and purposes; and

“(11) Notwithstanding the foregoing, and pursuant to the order continuing stay of enforcement entered by Judge B. Lynn Winmill, the Legislature enacts Sections 2 [this section] and 3 [§ 54-5707] of this Act.”

Compiler’s Notes.

Section 1 of S.L. 2015, ch. 270 provided: “Short Title. This act shall be known and may be cited as the ‘Physician Physical Presence and Women Protection Act.’”

Effective Dates.

Section 4 of S.L. 2017, ch. 242 declared an emergency. Approved April 4, 2017.

Cross References.

Attorney general,§ 67-1401 et seq.

Compiler’s Notes.

Section 1 of S.L. 2015, ch. 270 provided: “Short Title. This act shall be known and may be cited as the ‘Physician Physical Presence and Women Protection Act.’”

Compiler’s Notes.

Section 1 of S.L. 2015, ch. 270 provided: “Short Title. This act shall be known and may be cited as the ‘Physician Physical Presence and Women Protection Act.’”

Compiler’s Notes.

Section 1 of S.L. 2015, ch. 270 provided: “Short Title. This act shall be known and may be cited as the ‘Physician Physical Presence and Women Protection Act.’”

Compiler’s Notes.

Section 1 of S.L. 2015, ch. 270 provided: “Short Title. This act shall be known and may be cited as the ‘Physician Physical Presence and Women Protection Act.’”

The term “this act” in this section refers to S.L. 2015, chapter 270, which is codified as§§ 18-617 through 18-621.

Compiler’s Notes.

Section 2 of S.L. 2020, ch. 284 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

This section was signed by the governor on March 24, 2020, and is effective when the U.S Supreme Court or an amendment of the U.S. Constitution restores to the states their authority to prohibition abortion.

Prior Laws.

Former§ 18-701, which comprised Cr. & P. 1864, § 108; R.S., R.C., & C.L., § 6510; C.S., § 8178; I.C.A.,§ 17-1001, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-701, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Effective Dates.

Section 14 of S.L. 1972, ch. 336 declared an emergency and provided that the act should take effect on and after April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Costs.

Counties are responsible for the cost incurred by the county jail in housing a prisoner who has been charged with a state law violation committed within city limits and investigated by city police officers, and while counties may bring legal action to recoup jail costs incurred for city prisoners charged under city ordinances or state motor vehicle laws.OAG 84-4.

Prior Laws.

Former§ 18-702, which comprised R.S., R.C., & C.L., § 6512; C.S., § 8180; I.C.A.,§ 17-1003, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-702, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and another version was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Compiler’s Notes.

This section, which comprised I.C.,§ 18-702, as added by S.L. 1972, ch. 336, § 1, p. 844, was repealed by S.L. 1994, ch. 131, § 7, effective July 1, 1994.

Cross References.

False personation,§ 18-3001.

Issuance of warrant of arrest,§§ 19-506 to 19-509.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

When peace officer may arrest,§ 19-603.

Prior Laws.

Former§ 18-703, which comprised R.S., R.C., & C.L., § 6513; C.S., § 8181; I.C.A.,§ 17-1004, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-703, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Am. Jur. 2d.

§ 18-704. Inhuman treatment of prisoners.

Every officer who is guilty of wilful inhumanity or oppression toward any prisoner under his care or in his custody is punishable by fine not exceeding $5,000, and removal from office.

History.

I.C.,§ 18-704, as added by 1972, ch. 336, § 1, p. 844.

Prior Laws.

Former§ 18-704, which comprised Cr. & P. 1864, § 96; R.S., R.C., & C.L., § 6514; C.S., § 8182; I.C.A.,§ 17-1005, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-704, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Am. Jur. 2d.

C.J.S.

Prior Laws.

Former§ 18-705, which comprised Cr. & P. 1864, § 100; R.S., R.C., & C.L., § 6515; C.S., § 8183; I.C.A.,§ 17-1006, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1, in the same words as the section read prior to its repeal.

Defenses.

Duty to Public.

It is no defense for defendant to show that threats had been made against him by other parties, or that he was in fear as to his person or property. State v. Winter, 24 Idaho 749, 135 P. 739 (1913). Duty to Public.

The officers had a duty to the general public in addition to the duty owed to the suspect. The officers’ duty to the general public when arresting a potentially dangerous individual is to protect innocent bystanders from any harm the arrestee may inflict upon them during the process of being arrested. Kessler v. Barowsky, 129 Idaho 640, 931 P.2d 634 (Ct. App. 1996).

Trial court erred by denying defendant’s motion to suppress drug evidence because the officer’s frisk of defendant was unlawful in the circumstances. The officer’s subjective feelings could not be relied on to justify the frisk, and evidence that defendant was acting nervous and may have been under the influence of a narcotic did not justify the frisk. Because the frisk was unlawful, it was not a duty under this section and defendant was entitled to peacefully refuse. State v. Bishop, 146 Idaho 804, 203 P.3d 1203 (2009).

Evidence.

Evidence of defendant’s alleged battery on an officer and other forceful resistance was not suppressible on the ground that the officer illegally entered defendant’s home, because the officer did not derive evidence of this new criminal conduct from any exploitation of the unlawful entry. State v. Lusby, 146 Idaho 506, 198 P.3d 735 (Ct. App. 2008).

Instructions.

Where, in a prosecution for obstructing a police officer and committing a battery upon a police officer, there was a question of fact whether the defendant had made a lunge at one officer, justifying the other in grabbing the defendant from behind, and there also was a related question as to whether the officers at any time used force to an excessive degree, the magistrate’s refusal to instruct the jury on the right of a citizen to resist excessive force by police constituted reversible error entitling the defendant to a new trial. State v. Spurr, 114 Idaho 277, 755 P.2d 1315 (Ct. App. 1988).

Intent.

No special intent is necessary, but defendant must have had knowledge that person resisted was an officer, engaged in discharge or attempted discharge of his duty. State v. Winter, 24 Idaho 749, 135 P. 739 (1913).

An attorney’s unsworn oral misstatement to police officers regarding the whereabouts of a safe belonging to the attorney’s client, whom the police were investigating, did not constitute obstructing and delaying an officer within the meaning of this section. State v. Brandstetter, 127 Idaho 885, 908 P.2d 578 (Ct. App. 1995).

Notice.

Where deputy sheriff was faced with a dangerous drunk who was attempting to strike him with a potentially lethal weapon, the deputy was not required to give the statutory notice that he was placing defendant under arrest until defendant physically had been subdued. State v. Dolsby, 124 Idaho 271, 858 P.2d 810 (Ct. App. 1993).

Order or Act Contrary to Law.

Other Punishment.

Where an individual refuses to obey an order or obstructs an act of a public officer which is contrary to the law, be it statute or constitution, that individual does not violate this section. State v. Wilkerson, 114 Idaho 174, 755 P.2d 471 (Ct. App.), aff’d, 115 Idaho 357, 766 P.2d 1238 (1988). Other Punishment.

Where a defendant threatened to kill a police officer who arrested him, such conduct constituted an attempt to prevent by threat an executive officer from performing his duty punishable under§ 18-2703 (repealed); thus, such action was not punishable under a former version of this section. State v. Wozniak, 94 Idaho 312, 486 P.2d 1025 (1971), overruled on other grounds, State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975).

Permissible Seizure.

While not ruling as to whether activation of the patrol car’s emergency lights was a show of authority that effectuated a seizure, but instead assuming that activation of the lights effectuated a seizure by conveying to defendant that she was not free to leave, such a seizure was reasonable and constitutionally permissible in view of the surrounding circumstances. State v. Waldie, 126 Idaho 864, 893 P.2d 811 (Ct. App. 1995).

Probable Cause for Arrest.

Probable cause existed to arrest defendant for obstructing and delaying an officer in the discharge of his duties where, as a passenger in a car driven by his wife, defendant was aware that the police were attempting to cite his wife for various traffic violations, yet, when ordered to keep his hands in plain view, away from the bulge in his jacket, he refused to do so, and where defendant pushed an officer who was using reasonable force to place his hands on the hood of the car in an attempt to pat defendant down. State v. Wight, 117 Idaho 604, 790 P.2d 385 (Ct. App. 1990).

Reasonable or probable cause for an arrest exists where the officers possess information that would lead a person of ordinary care and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty. State v. Quimby, 122 Idaho 389, 834 P.2d 906 (Ct. App. 1992).

Though defendant did not touch the officers, he placed himself in the path of the officers, forcing them to push him out of the way. Defendant ignored the officers’ repeated verbal requests to move away. He placed himself unnecessarily close to the officers and made hand gestures in front of their faces. These facts were sufficient to establish probable cause for defendant’s arrest. State v. Quimby, 122 Idaho 389, 834 P.2d 906 (Ct. App. 1992).

Where there were other sufficient facts to establish probable cause for arrest, the fact that defendant turned around and ran gave the officers an additional basis under which they had probable cause to arrest him. State v. Quimby, 122 Idaho 389, 834 P.2d 906 (Ct. App. 1992).

Where exigent circumstances existed for the officers to enter a residence without a warrant, defendant’s actions in preventing any of the occupants from answering the door or talking to the officers interfered with the officers’ attempts to discharge their lawful duties and resulted in probable cause to justify defendant’s arrest for obstructing a police officer. State v. Araiza, 147 Idaho 371, 209 P.3d 668 (Ct. App. 2009).

Question for Jury.

Request of Officer Lawful and Authorized.

In prosecution for resisting and obstructing a police officer, whether the officer was performing a duty of his office when he called tow truck operator and ordered the defendant to cease her obstruction of the tow turned upon a resolution by the jury of those factual matters. State v. Wilkerson, 114 Idaho 174, 755 P.2d 471 (Ct. App.), aff’d, 115 Idaho 357, 766 P.2d 1238 (1988). Request of Officer Lawful and Authorized.

Where defendant was exceeding the speed limit, the stop was valid and did not constitute an unreasonable search and the officer’s request for defendant’s license, registration and proof of insurance was a lawful and authorized act, and her refusal to produce those documents constituted obstructing and delaying an officer in the performance of a duty of his office. State v. George, 127 Idaho 693, 905 P.2d 626 (1995).

Where defendant was resisting arrest and police were not aware of whether he posed an immediate threat to their safety or the safety of others, and the citizen was agitated when he approached them in an aggressive manner, and the officers believed he was under the influence of alcohol, and he was convicted for resisting or obstructing officers in violation of this section as a result of the incident, it was unreasonable to conclude that the officers’ conduct was so egregious as to provide notice of a constitutional violation given the circumstances. The incident occurred during a civil disturbance for which the officers were called to establish crowd control and the citizen refused to leave the area after being warned several times — police resorted to the double arm-bar takedown method only after he actively resisted arrest by stepping back into the crowd and pulling his arms back in a defensive manner — the law did not put the officers on notice that their actions were clearly unlawful; therefore, summary judgment based on qualified immunity was proper. Rosenberger v. Kootenai County Sheriff’s Dep’t, 140 Idaho 853, 103 P.3d 466 (2004).

Despite defendants’ contention that city’s plan to move remove Ten Commandments monument from public park was in violation of the law, park director was authorized to close a section of the park for safety reasons while monument was being removed, and police officer was authorized to enforce that closure. Defendants had no protected constitutional right to resist and obstruct police officer in the performance of her lawful duty. State v. Gamma, 143 Idaho 751, 152 P.3d 622 (Ct. App. 2006).

Separate and Distinct Acts.

Where, in prosecution for obstructing a police officer and battery upon a police officer, the alleged act of battery — the kick making contact with an officer — could be viewed either as a fortuitous event subsumed by the general struggle or as an event separated in time and place from the rest of the altercation, the magistrate was directed on remand to instruct the jury that they could not convict of both offenses, unless they were convinced beyond a reasonable doubt that both alleged crimes arose out of separate and distinct acts, each accompanied by criminal intent. State v. Spurr, 114 Idaho 277, 755 P.2d 1315 (Ct. App. 1988).

Sufficiency of Evidence.

Defendant testified that he was in a manic state at the time he was arrested and that his arms “went out” when officer handcuffed him and officer testified that he had to wrestle with defendant in order to restrain him; therefore, based on this testimony, there was sufficient evidence to support the resisting an officer conviction. State v. Goerig, 121 Idaho 108, 822 P.2d 1005 (Ct. App. 1991).

Evidence was sufficient to sustain the defendant’s conviction for obstructing an officer, where the defendant struck the officer after the officer told the defendant he was under arrest. State v. Hollon, 136 Idaho 499, 36 P.3d 1287 (Ct. App. 2001). There was sufficient evidence to support defendant’s conviction of resisting, delaying, or obstructing a public officer; defendant fled from police when they tried to talk to him and hid in a bedroom closet in an attempt to avoid them. State v. Anderson, 138 Idaho 359, 63 P.3d 485 (Ct. App. 2003).

Given that defendant refused to cooperate with police when arrested, and given that defendant repeatedly used profanity in addressing officers once defendant arrived at the county jail, there was sufficient evidence to support defendant’s conviction of resisting and obstructing an officer. State v. Adams, 138 Idaho 624, 67 P.3d 103 (Ct. App. 2003).

Defendant was properly convicted of misdemeanor resisting a public officer, where he refused to exit his vehicle when an officer attempted to arrest him for driving under the influence. State v. Patterson, 140 Idaho 612, 97 P.3d 479 (Ct. App. 2004).

Deputy testified that, after the traffic stop had come to an end, when defendant was walking about conducting his inspection of the patrol car (ostensibly to identify same), he was in the traffic lane at times, and the deputy was concerned that an oncoming driver might not see him. Thus, the state showed at trial that the deputy had a legitimate basis for concern about defendant’s personal safety and the safety of approaching drivers; the deputy had the authority, and in fact the duty, to safeguard persons using the highways and the jury could have properly found that the deputy was performing a “duty” of his office when he ordered defendant to return to his own car and that, by refusing to comply, defendant violated this section. State v. Hallenbeck, 141 Idaho 596, 114 P.3d 154 (Ct. App. 2005).

Sufficiency of Uniform Citation.

Where defendant was charged pursuant to this section, the officer’s inscription of the date, time, the words “resisting, obstructing and delaying an officer” and the number of the applicable code section on the preprinted Uniform Citation Form was sufficient to charge an offense, and defendant could have utilized Misdemeanor Criminal Rule 3(d) to demand a sworn complaint had he been in doubt as to the nature of the offense charged. State v. Cahoon, 116 Idaho 399, 775 P.2d 1241 (1989).

Vagueness Challenge.

Where the plaintiff is found to have engaged in conduct which is clearly proscribed by this section, plaintiff cannot complain of the vagueness of the law as applied to the conduct of others. Hallstrom v. City of Garden City, 811 F. Supp. 1443 (D. Idaho 1991), modified on other grounds, 991 F.2d 1473 (9th Cir. 1993).

Absent a finding that this section implicates a substantial amount of constitutionally protected conduct, striking down this section based on a facial vagueness review would be improper. Hallstrom v. City of Garden City, 811 F. Supp. 1443 (D. Idaho 1991), modified on other grounds, 991 F.2d 1473 (9th Cir. 1993).

This section and§ 18-114 give fair warning to a person of common intelligence that defendant’s conduct in swinging a crutch at a police officer was forbidden and subject to the penalty of law; therefore, this section, as applied, was not constitutionally defective as void-for-vagueness. State v. Dolsby, 124 Idaho 271, 858 P.2d 810 (Ct. App. 1993).

Cited Martin v. Lyons, 98 Idaho 102, 558 P.2d 1063 (1977); Frank v. City of Caldwell, 99 Idaho 498, 584 P.2d 643 (1978); State v. McNary, 100 Idaho 244, 596 P.2d 417 (1979); Hopper v. Hayes, 573 F. Supp. 1368 (D. Idaho 1983); State v. Rutter, 112 Idaho 1142, 739 P.2d 441 (Ct. App. 1987); State v. Hardman, 120 Idaho 667, 818 P.2d 782 (Ct. App. 1991); State v. Wilkerson, 121 Idaho 345, 824 P.2d 920 (Ct. App. 1992); State v. Pick, 124 Idaho 601, 861 P.2d 1266 (Ct. App. 1993); State v. Bowman, 124 Idaho 936, 866 P.2d 193 (Ct. App. 1993); Yoakum v. Hartford Fire Ins. Co., 129 Idaho 171, 923 P.2d 416 (1996); State v. Brandt, 135 Idaho 205, 16 P.3d 302 (Ct. App. 2000); State v. Wiedenheft, 136 Idaho 14, 27 P.3d 873 (Ct. App. 2001); Mallonee v. State, 139 Idaho 615, 84 P.3d 551 (2004).

Cited

Am. Jur. 2d.

58 Am. Jur. 2d, Obstructing Justice, § 52 et seq.

C.J.S.

ALR.

Prior Laws.

Former§ 18-706, which comprised R.S., R.C., & C.L., § 6516; C.S., § 8184; I.C.A.,§ 17-1007, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal.

Prior Laws.

Former§ 18-707, which comprised Cr. Prac. 1864, § 36; R.S., R.C., & C.L., § 6517; C.S., § 8185; I.C.A.,§ 17-1008; am. S.L. 1969, ch. 127, § 1, p. 393, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972.

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Prior Laws.

Former§ 18-708, which comprised R.S., R.C., & C.L., § 6447; C.S., § 8147; I.C.A.,§ 17-802, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal.

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Compiler’s Notes.

This section, which comprised R.S., R.C., & C.L., § 6533; C.S., § 8201; I.C.A.,§ 17-1024, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal.

Compiler’s Notes.

This section, which comprised S.L. 1890-1891, p. 15, § 1; reen. S.L. 1899, p. 9, § 1; reen. R.C. & C.L., § 6545; C.S., § 8206; I.C.A.,§ 17-1029, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-710 as added by S.L. 1972, ch. 336, § 1 dealing with the same subject which section was in turn repealed by S.L. 1972, ch. 381, § 17, effective April 1, 1972.

Cross References.

Importation of armed forces prohibited, Idaho Const., Art. XIV, § 6.

Prior Laws.

Former§ 18-711, which comprised S.L. 1890-1891, p. 15, § 2; reen. S.L. 1899, p. 9, § 2; reen. R.C. & C.L., § 6546; C.S., § 8207; I.C.A.,§ 17-1030, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1, restoring the subject matter contained in the section as it existed prior to its repeal.

Effective Dates.

Section 2 of S.L. 1975, ch. 130 declared an emergency. Approved March 26, 1975.

CASE NOTES

Construction.

The construction of the statute provides two manners in which the statute can be violated; a person can violate the statute by exercising or attempting to exercise the functions of or holding himself or herself out to anyone as one of the delineated law officials, or the statute can be violated when a person, acting on his or her own behalf, or as an officer, or as an agent for another or a company, brings or aids in bringing an armed or unarmed police force or body of men into the state. State v. Rivera, 131 Idaho 8, 951 P.2d 528 (Ct. App. 1998).

Mayor Authorizing Employment.

Where the mayor of a city authorizes a person to select detectives or policemen to act for and on behalf of the city, and such persons, residents of Washington state, are so selected and serve in such capacity and are paid by such person, who thereafter presents a claim against the city for the money so expended, and the city council allows such claim and orders and directs that a warrant issue in payment therefor, the acts of the council are a ratification of the mayor’s acts in authorizing the selection of such person to act for and on behalf of the city, and the expense thereby incurred becomes a city charge, which the city is authorized to pay. Moore v. Hupp, 17 Idaho 232, 105 P. 209 (1909).

Prior Laws.

Former§ 18-712, which comprised S.L. 1890-1891, p. 15, § 3; reen. S.L. 1899, p. 9, § 3; reen. R.C. & C.L., § 6547; C.S., § 8208; I.C.A.,§ 17-1031, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal.

Cross References.

Electrical transmission plants and lines, burning or destruction of, a felony,§§ 18-6803 to 18-6805.

Idaho Arson and Fraud Reporting-Immunity Act,§§ 41-290 to 41-298.

Mines, burning underground workings of, a felony,§§ 18-7024, 18-7025.

Timber and prairies, violation of law for protection against fire, a misdemeanor,§ 18-7004.

Uncontrolled forest fires considered nuisance,§ 38-107.

Uniform fire code,§ 41-253 et seq.

Prior Laws.

Former§ 18-801, which comprised, I.C.,§ 18-801, as added by S.L. 1972, ch. 336, § 1, p. 844, was repealed by S.L. 1993, ch. 107, § 7, effective July 1, 1993.

A second former§ 18-801, which comprised I.C.,§ 18-801, as added by S.L. 1971, ch. 143, § 1, was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

A third former§ 18-801, which comprised I.C.A.,§ 17-3310, as added by S.L. 1939, ch. 67, § 2, p. 118, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972.

Legislative Intent.

Section 1 of S.L. 1993, ch. 107 read: “It is the finding of the Legislature that the crime of arson presents a serious threat to human life and creates an extraordinary financial cost as a result of the destruction of property. This arson code categorizes the severity of penalty and punishment based upon the priority of human life as our greatest concern, thereafter followed by concern for costs resulting from the loss of property. The addition of a definition section will clarify the categories of property protected under these laws and allow for the charging of arson not only in cases involving a charring or burning, but also, in any circumstances in which there has been any damage to property as a result of fire or explosion.”

Decisions Under Prior Law

Burning of Jail.

Any building which is usually occupied by any person lodging therein at night is an inhabited building within the law of arson; consequently a jail is a subject of arson. State v. Collins, 3 Idaho 467, 31 P. 1048 (1892).

Persistent Violator.

A sentence of 21 years was not excessive for one convicted of arson in the first degree who was found to be a persistent violator under§ 19-2514. State v. Dunn, 91 Idaho 870, 434 P.2d 88 (1967).

Sentence.

An indeterminate sentence of not to exceed 20 years was not excessive for first-degree arson, in view of the defendant’s relatively extensive prior criminal record, and the risk of injury or death to the public in general, and firefighters in particular, caused by the defendant’s actions. State v. Knight, 106 Idaho 496, 681 P.2d 6 (Ct. App. 1984).

A sentence of ten years with a three-year minimum period of confinement was not excessive for a defendant who plead guilty to first-degree arson. State v. Harper, 116 Idaho 335, 775 P.2d 649 (Ct. App. 1989).

Sufficiency of Evidence.

Evidence held sufficient to allow the jury to find beyond a reasonable doubt that fire in defendant’s mobile home was likely to have been the result of arson and that defendant was the perpetrator. State v. Jussaume, 112 Idaho 108, 730 P.2d 1028 (Ct. App. 1986).

An accomplice’s testimony linking defendant to a fire which destroyed his own house was sufficiently corroborated by evidence that defendant moved almost all of his uninsured equipment out of the house just before the fire, that defendant called the fire department from neighbor’s house instead of his own, that defendant made an appointment prior to the fire to get a new artificial leg, that defendant left his wallet and checkbook in pickup taken by his accomplice, that defendant listed an inflated value for his house on his proof of loss form, that defendant had access to the two points of origin of the fire which expert testified were started by accelerants, that he had opportunity to set the fire in those areas and that defendant would gain substantially if his inflated proof of loss was paid. State v. Morris, 116 Idaho 16, 773 P.2d 284 (Ct. App. 1989).

Am. Jur. 2d.

C.J.S.

ALR.

§ 18-802. Arson in first degree — Burning of dwelling or other structures where persons are normally present — Penalties.

Any person who willfully and unlawfully, by fire or explosion, damages:

1. Any dwelling, whether occupied or not; or
2. Any structure, whether occupied or not, in which persons are normally present, including without limitation: jails, prisons or detention centers; hospitals, nursing homes or other health care facilities; department stores, office buildings, business establishments, churches or educational institutions, or other similar structures; or
3. Any other structure which the actor has reasonable grounds to believe is occupied by a human being; or
4. Any real or personal property, whether the property of the actor or another, with the intent to deceive or harm any insurer or any person with a legal or financial interest in the property, or obtain any financial gain for the actor or another;

is guilty of arson in the first degree, and upon conviction thereof shall be sentenced to the custody of the department of correction for not more than twenty-five (25) years or fined not more than one hundred thousand dollars ($100,000) or both.

History.

I.C.,§ 18-802, as added by 1993, ch. 107, § 3, p. 273.

Cross References.

Department of correction,§ 20-201 et seq.

Electrical transmission plants and lines, burning or destruction of, a felony,§§ 18-6803 to 18-6805.

Mines, burning underground workings of, a felony,§§ 18-7024, 18-7025.

Idaho Arson and Fraud Reporting-Immunity Act,§§ 41-290 to 41-298.

Timber and prairies, violation of law for protection against fire, a misdemeanor,§ 18-7004.

Uncontrolled forest fires considered nuisance,§ 38-107.

Uniform fire code,§ 41-253 et seq.

Prior Laws.

Former§ 18-802, which comprised, I.C.,§ 18-802, as added by S.L. 1972, ch. 336, § 1, p. 844, was repealed by S.L. 1993, ch. 107, § 7, effective July 1, 1993.

A second former§ 18-802, which comprised I.C.,§ 18-802, as added by S.L. 1971, ch. 143, § 1, was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

A third former§ 18-802, which comprised I.C.A.,§ 17-3311, as added by S.L. 1939, ch. 67, § 2, p. 118, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972.

Constitutionality.

This section is not unconstitutionally vague because it gives adequate notice to people of ordinary intelligence concerning the conduct it proscribes, and it is not overbroad because arson is within the reach of the state’s police power. State v. Leferink, 133 Idaho 780, 992 P.2d 775 (1999).

Double Jeopardy.

One of defendant’s convictions for aggravated first degree arson was vacated because, although defendant’s act of arson was enhanced to aggravated arson by virtue of the deaths of two persons, defendant could not be convicted for two acts of arson when there was only one fire. State v. Payne, 134 Idaho 423, 3 P.3d 1251 (2000).

Inconsistent Verdicts.

The jury’s verdict was not impermissibly inconsistent where the jury acquitted defendant of first degree arson but convicted him of aggravated first degree arson. State v. Payne, 134 Idaho 423, 3 P.3d 1251 (2000).

Motive.

Motive was not an element of the crime of first degree arson; therefore, defendant’s post-conviction ineffective assistance of counsel claim that his motion to dismiss would have been successful based on the state’s inability to present evidence of his motive was without merit. Thomas v. State, 145 Idaho 765, 185 P.3d 921 (Ct. App. 2008).

Sentence Not Excessive.

Where defendant was found guilty of two counts of first degree arson for setting fire to a vacant house and to an occupied home, the district court did not abuse its discretion by sentencing him to seven years’ fixed incarceration. State v. Brizendine, 123 Idaho 886, 853 P.2d 631 (Ct. App. 1993).

Decisions Under Prior Law

Corpus Delicti.

Instructions.

The corpus delicti in a prosecution for arson in the second degree was established by circumstantial evidence that included testimony of a witness who observed defendant fleeing and carrying a can which was later found to contain gasoline and opinion testimony of the fire chief who examined the premises after the fire. State v. Johnson, 96 Idaho 727, 536 P.2d 295 (1975). Instructions.

Trial court properly refused to give an instruction in an arson case that all fires are presumed to be caused by accidental or natural causes where there were no facts presented raising any issue as to the incendiary origin of the fire. State v. Johnson, 96 Idaho 727, 536 P.2d 295 (1975).

Sentence.

A judge did not abuse his discretion in imposing a 15-year sentence with a minimum of six years confinement, or in later refusing to reduce the sentence for a defendant convicted of bombing a public structure, where the judge explained the sentence in terms of protecting society, retribution and deterrence and also took rehabilitation into account. State v. Langley, 115 Idaho 727, 769 P.2d 604 (Ct. App. 1989).

Am. Jur. 2d.

C.J.S.

ALR.

§ 18-803. Arson in the second degree — Burning of a structure — Penalties.

Any person who willfully and unlawfully, by fire or explosion, damages any structure, whether the property of the actor or another, not included or described in the preceding section, is guilty of arson in the second degree, and upon conviction thereof shall be sentenced to the custody of the department of correction for not more than fifteen (15) years or fined not more than seventy-five thousand dollars ($75,000) or both.

History.

I.C.,§ 18-803, as added by 1993, ch. 107, § 4, p. 273.

Cross References.

Department of correction,§ 20-201 et seq.

Electrical transmission plants and lines, burning or destruction of, a felony,§§ 18-6803 to 18-6805.

Idaho Arson and Fraud Reporting-Immunity Act,§§ 41-290 to 41-298.

Mines, burning underground workings of, a felony,§§ 18-7024, 18-7025.

Uncontrolled forest fires considered nuisance,§ 38-107.

Timber and prairies, violation of law for protection against fire, a misdemeanor,§ 18-7004.

Uniform fire code,§ 41-253 et seq.

Prior Laws.

Former§ 18-803, which comprised I.C.,§ 18-803, as added by S.L. 1972, ch. 336, § 1, p. 844, was repealed by S.L. 1993, ch. 107, § 7, effective July 1, 1993.

A second former§ 18-803, which comprised I.C.,§ 18-803, as added by S.L. 1971, ch. 143, § 1, was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

A third former§ 18-803, which comprised I.C.A.,§ 17-3312, as added by S.L. 1939, ch. 67, § 2, p. 118, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972.

Constitutionality.

The defendant’s allegation that this section was constitutionally invalid because it was vague and overbroad failed because the defendant did not raise the matter before the trial court through any motion to dismiss or other pretrial procedures; therefore, the matter could not be considered on appeal. State v. Fox, 130 Idaho 385, 941 P.2d 357 (Ct. App. 1997).

Cited Brown v. State, 137 Idaho 529, 50 P.3d 1024 (Ct. App. 2002). Decisions Under Prior Law

Erroneous Charge.

Charge and conviction of burning “bean hay” will not be sustained by evidence that substance destroyed was residue after beans or seed had been removed by threshing. State v. Choate, 41 Idaho 251, 238 P. 538 (1925).

Sentencing.

Where defendant was sentenced to a five-year unified sentence with two-years fixed and three-years indeterminate for burning property not subject to arson, and two one-year terms for firing timber or prairie lands, all to run concurrently, and during the period of retained jurisdiction, the judge decided to decrease the term of the fixed sentence to one year with four-years indeterminate because of defendant’s performance in a special program, although the one-year sentence for firing of timber appeared to be illegal, because the sentence ran concurrently with the sentence for burning property not subject to arson, the issue of the illegal sentence was moot, and the other sentence was found to be reasonable in light of the potential danger to property and human life caused by the fire. State v. Goodson, 122 Idaho 553, 835 P.2d 1364 (Ct. App. 1992).

Am. Jur. 2d.

C.J.S.

ALR.

§ 18-804. Arson in the third degree — Burning of real or personal property or forest land — Penalties.

Any person who willfully and unlawfully, by fire or explosion, damages:

1. Any real or personal property of another; or
2. Any forest land;

is guilty of arson in the third degree, and upon conviction thereof shall be sentenced to the custody of the department of correction for not more than ten (10) years or fined not more than fifty thousand dollars ($50,000) or both.

History.

I.C.,§ 18-804, as added by 1993, ch. 107, § 5, p. 273.

Cross References.

Department of correction,§ 20-201 et seq.

Electrical transmission plants and lines, burning or destruction of, a felony,§§ 18-6803 to 18-6805.

Mines, burning underground workings of, a felony,§§ 18-7024, 18-7025.

Idaho Arson and Fraud Reporting-Immunity Act,§§ 41-290 to 41-298.

Timber and prairies, violation of law for protection against fire, a misdemeanor,§ 18-7004.

Uncontrolled forest fires considered nuisance,§ 38-107.

Uniform fire code,§ 41-253 et seq.

Prior Laws.

Former§ 18-804, which comprised I.C.,§ 18-804, as added by S.L. 1972, ch. 336, § 1, p. 844, was repealed by S.L. 1993, ch. 107, § 7, effective July 1, 1993.

Another former§ 18-804, which comprised I.C.A.,§ 17-3313, as added by S.L. 1939, ch. 67, § 2, p. 118, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-804, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972 and the former section was added by S.L. 1972, ch. 336, § 1 contained the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Am. Jur. 2d.

C.J.S.

ALR.

§ 18-805. Aggravated arson — Penalties.

A person whose violation of sections [section] 18-802, 18-803 or 18-804, Idaho Code, results, directly or indirectly, in great bodily harm, permanent disability, permanent disfigurement or death of a firefighter or any other person, regardless of intent or lack of intent to cause such harm, upon a finding of guilt thereon shall be sentenced to an extended term of imprisonment. The extended term of imprisonment shall be computed by increasing the sentence imposed for a conviction under such sections, by a period of not more than ten (10) years.

History.

I.C.,§ 18-805, as added by 1993, ch. 107, § 6, p. 273.

Prior Laws.

Former§ 18-805, which comprised I.C.,§ 18-805, as added by S.L. 1987, ch. 230, § 1, p. 486, was repealed by S.L. 1993, ch. 107, § 7, effective July 1, 1993.

Another former§ 18-805, which comprised I.C.,§ 18-805, as added by S.L. 1971, ch. 143, § 1, p. 630, was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Compiler’s Notes.

The bracketed insertion in the first sentence was added by the compiler to correct the syntax in the sentence.

In General.

Aggravated first degree arson is not a lesser included offense of felony murder, but is merely an aggravated form of first degree arson, which provides for enhanced punishment in accordance with the aggravating factors set forth in this section. State v. Payne, 134 Idaho 423, 3 P.3d 1251 (2000).

Compiler’s Notes.

This section, which comprised I.C.,§ 18-806, as added by S.L. 1971, ch. 143, § 1, p. 630, was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Cross References.

Husband or wife may testify in prosecution for crime committed by one against the person of the other,§ 9-203.

Prior Laws.

Former§§ 18-901 to 18-913, which comprised I.C.,§§ 18-901 to 18-912, as added by S.L. 1972, ch. 336, § 1, p. 844; I.C.,§ 18-913, as added by S.L. 1974, ch. 198, § 1, p. 1515; am. S.L. 1976, ch. 144, § 1, p. 529, were repealed by S.L. 1979, ch. 227, § 1.

Former§§ 18-901 to 18-911, as added by S.L. 1971, ch. 143, § 1, were repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Other former§§ 18-901 to 18-911, which comprised Cr. & P. 1864, §§ 41, 46 to 48; R.S., R.C., C.L., §§ 6703 to 6706; 6727 to 6732, 7211; C.S., §§ 8231 to 8234, 8247 to 8252, 8590; I.C.A.,§§ 17-1201 to 17-1210, 17-4604, were repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972.

Applicability.

The requirement of unlawfulness under 11 U.S.C.S. § 507(a)(10), which establishes a tenth-level priority for claims for death or injury resulting from the operation of a motor vehicle if such operation was unlawful because the debtor was intoxicated, could not be established by proof of a violation of§ 18-903 or 49-1401 or this section, because intoxication is not a separate element of the offenses covered by those sections. In re Loader, 406 B.R. 72 (Bankr. D. Idaho 2009).

Deadly Weapon.

Legislative policy expressed within§ 18-905 and this section evidenced an intent that it was a victim’s reasonable perception that was dispositive of the question of whether a weapon was deadly. State v. Cudd, 137 Idaho 625, 51 P.3d 439 (Ct. App. 2002).

Evidence.

— In General.

In prosecution for aggravated assault on a law enforcement officer, the admission of the defendant’s blood alcohol test result, even if error, was harmless, where testimony was adduced, without objection, that the defendant had been consuming alcoholic beverages and the test result simply confirmed that undisputed fact, and the evidence of intoxication actually could have been exculpatory under the instructions the trial court gave the jury on intent. State v. Missamore, 114 Idaho 879, 761 P.2d 1231 (Ct. App. 1988).

— Sufficient.

Where the testimony, albeit somewhat controverted, was that defendant entered the victim’s residence uninvited and beat the victim on the head with a beer bottle when the victim objected, and the defendant did not deny the assault, the evidence amply sustained the conviction. State v. Larson, 109 Idaho 868, 712 P.2d 569 (1985).

When a defendant carries a loaded gun during a burglary attempt, he has already completed any requirement regarding mere preparation, and the act of drawing the weapon and pointing it toward an individual, or where an individual is expected or known to be, goes beyond mere preparation and goes to the intent to inflict “a violent injury on the person of another.” State v. Daniels, 134 Idaho 896, 11 P.3d 1114 (2000).

Evidence was sufficient to convict defendant of attempted assault when he threatened three boys and maneuvered his car as if to assault them, even though the car became hung up on a rock. State v. Broadhead, 139 Idaho 663, 84 P.3d 599 (Ct. App. 2004).

Included Offense.

An assault is a necessarily included offense of battery; an aggravated assault is a necessarily included offense of aggravated battery. State v. Eisele, 107 Idaho 1035, 695 P.2d 420 (Ct. App. 1985).

Indictment and Information.

Even assuming that the misdemeanor offenses of exhibition or use of a deadly weapon, aiming a firearm at others, and discharge of arms aimed at another were lesser included offenses which the district court was obligated to offer to the jury, any error in the district court’s failure to give the instructions was harmless under the “acquittal first” requirement of§ 19-2132(c). Jury would not have considered the lesser included misdemeanor offenses, because it had unanimously concluded defendant was guilty of felony aggravated assault. State v. Hudson, 129 Idaho 478, 927 P.2d 451 (Ct. App. 1996). Indictment and Information.

Where the information filed in an aggravated assault prosecution contained a plain, concise, and definite statement of the essential facts constituting the offense charged, the failure of the information to list the precise subsections of the statutes that the defendant was alleged to have violated did not render the information legally insufficient. State v. Lenz, 103 Idaho 632, 651 P.2d 566 (Ct. App. 1982).

Where although the judge did not explicitly define the intent element of the alleged crime but did state the offense charged and enunciated defendant’s rights, including the right to insist that the state meet its burden of proof and also asked the prosecutor to narrate the underlying facts which he did, defendant was informed of the gravamen of the charge against him and was adequately informed of the nature of the charge, aggravated assault. State v. Bonaparte, 114 Idaho 577, 759 P.2d 83 (Ct. App. 1988).

Instructions.

In prosecution for aggravated assault, the evidence did not require the court to give the requested instruction on assault, where the defendant admitted holding the gun but denied pointing it or making a threatening statement. State v. Mason, 111 Idaho 660, 726 P.2d 772 (Ct. App. 1986).

Defendant’s conviction was vacated because the statement in the jury instruction that “upon a showing of criminal negligence, the law will impute or attribute to the defendant a willful intention even though he may not in fact have entertained such intention” diminished the state’s burden on the mental element of assault under subsection (b) and, in effect, modified the mens rea element from intent to negligence. State v. Crowe, 135 Idaho 43, 13 P.3d 1256 (Ct. App. 2000).

Court was not required to instruct the jury, and the state was not required to prove beyond a reasonable doubt, that defendant intended to cause apprehension in the victim; to convict defendant of aggravated assault the state needed only to prove, under subsection (b), defendant’s intent to threaten by word or act and not a separate specific intent to cause apprehension in the victim. State v. Dudley, 137 Idaho 888, 55 P.3d 881 (Ct. App. 2002).

Because a jury instruction defined assault and battery pursuant to this section and§ 18-903 and identified the specific mental states required for commission of the crimes, there was no need for a further instruction based on§ 18-114 to inform the jury of the required mental elements. State v. Hoffman, 137 Idaho 897, 55 P.3d 890 (Ct. App. 2002).

Erroneous jury instruction on the definition of general criminal intent was harmless where overwhelming evidence showed that defendant’s act of firing a pistol across several lanes of traffic at a place where the victims were standing created a well-founded fear in the young victims that they were being threatened with violence. The evidence was sufficient to convict defendant of aggravated assault where, in addition to firing the pistol, defendant pursued the victims into a mall, a shell casing was found near the location where the shot was fired, and a pistol was found near where the defendant was arrested after a high speed police chase. State v. Hansen, 148 Idaho 442, 224 P.3d 509 (Ct. App. 2009).

No Breach of Plea Agreement.

District court did not err in instructing the jury on assault under this section because it gave the instruction offered by defendant. An erroneous instruction will not constitute reversible error unless the instructions as a whole misled the jury or prejudiced a party. State v. Skunkcap, 157 Idaho 221, 335 P.3d 561 (2014). No Breach of Plea Agreement.

Because the record did not support the conclusion that the victim’s mother was presenting testimony at sentencing at the initiative of or on behalf of the state, the court was unable to conclude that the prosecutor acted contrary to the provisions of the plea agreement where defendant pleaded guilty to aggravated assault in violation of§ 18-905 and this section. UnderIdaho Const., Art. I, § 22(6) and§ 19-5306(1)(e), crime victims were guaranteed the right to be heard upon request at sentencing hearings, and the state had informed the trial court that the mother wanted to address the court on behalf of the victim, and the trial court allowed the statement as a victim impact statement, and the issue of whether the trial court erred in allowing the mother to give such a statement was not preserved for review. State v. Jones, 141 Idaho 673, 115 P.3d 764 (Ct. App. 2005).

State’s recommendation of the longest permissible underlying sentence in defendant’s case for aggravated assault in violation of§ 18-905 and this section was not inconsistent with the recommendation of retained jurisdiction under§ 19-2601 and did not amount to a recommendation against retained jurisdiction; therefore, no breach of the plea agreement was shown. State v. Jones, 141 Idaho 673, 115 P.3d 764 (Ct. App. 2005).

Prosecutorial Misconduct.

In prosecution for aggravated assault on a law enforcement officer, the prosecutor’s remark improperly predicting future confrontations between the defendant and the police was not fundamental error, requiring reversal of the judgment of conviction, where the defendant made no objection to the argument nor did he move for a mistrial or otherwise challenge the comment before the case was submitted to the jury; and the remark was not so egregious or inflammatory that any prejudice arising therefrom could not have been remedied by a ruling from the trial court. State v. Missamore, 114 Idaho 879, 761 P.2d 1231 (Ct. App. 1988).

Where defendant was convicted of aggravated assault for hitting a car windshield with a pickax, which defendant and other witnesses claimed was accidental, a new trial was warranted because (1) the prosecutor’s rebuttal argument suggested that jurors ought to respond to the testimony of defendant and witnesses with irritation and resentment, (2) the prosecutor’s statements were improper appeals to the jury’s passion or prejudice, and (3) the error was not harmless. State v. Phillips, 144 Idaho 82, 156 P.3d 583 (Ct. App. 2007).

Sentence.

The record reveals that the court properly considered the appropriate goals of sentencing when it imposed the five-year term, noted the violence inherent in defendant’s act, and ordered a sentence within the statutory maximum. State v. Adams, 120 Idaho 350, 815 P.2d 1090 (Ct. App. 1991).

The 15-year indeterminate part of defendant’s sentences was reasonable in light of his numerous prior alcohol-related driving offenses and his extensive history of repetitive unlawful behavior. State v. Hildreth, 120 Idaho 573, 817 P.2d 1097 (Ct. App. 1991).

The judge fairly considered each of the sentencing factors in that he noted the defendant undoubtedly had been an outstanding worker who could be a productive member of society but for his alcohol and glue addictions; the protection of society was properly considered to be of primary importance in arriving at an appropriate sentence; defendant was a longtime alcoholic; he had undergone counseling and treatment; he had been given probation, paid fines and been incarcerated several times, and nothing had worked to stop his driving while intoxicated; and no short-term rehabilitative program had been shown to be effective; therefore the five-year minimum period of incarceration was reasonable for the crime of DUI and aggravated assault. State v. Hildreth, 120 Idaho 573, 817 P.2d 1097 (Ct. App. 1991). The district judge believed that any further reduction in sentence would depreciate the seriousness of the defendant’s crime, namely, shooting a pistol at police officers chasing him on foot, regardless of defendant’s current institutional adjustment, rehabilitation goals, and conditions at the penitentiary; the reasoning of the judge in denying the Idaho R. Crim. P. 35 motion indicated no abuse of discretion. State v. White, 121 Idaho 876, 828 P.2d 905 (Ct. App. 1992).

The district court did not abuse its sentencing discretion when it ordered the execution of a previously imposed sentence and modified the sentence to four years fixed with one-year indeterminate for aggravated assault. The court adequately considered the extent of defendant’s mental state when combined with her substance addiction and her extensive record. State v. Tesheep, 122 Idaho 759, 838 P.2d 888 (Ct. App. 1992).

Sentence imposed of a unified five-year term with three and one-half years determinate for defendant’s aggravated assault conviction under§ 18-905 and this section was not excessive; defendant had a substantial criminal record and the record on appeal did not support defendant’s claim that the trial court disregarded mitigating factors, and there was also sufficient evidence for the trial court to find that defendant was not suitable for retained jurisdiction or probation, pursuant to§ 19-2601, and thus the trial court did not err in finding that retained jurisdiction was inappropriate and that a prison sentence was necessary. State v. Jones, 141 Idaho 673, 115 P.3d 764 (Ct. App. 2005).

Decisions Under Prior Law

Attempt.

The pointing of a loaded gun, combined with a stated or implied threat, was sufficient to justify a jury’s finding of “attempt,” even if the threat was a conditional threat. State v. Mathewson, 93 Idaho 769, 472 P.2d 638 (1970).

Included Offense.

The language of the charging part of the information, of “assault with intent to commit murder” was sufficient to charge “assault with a deadly weapon,” an included offense pursuant to§ 19-2312; it clearly appeared that the intent of appellant to do what the jury found he did was sufficiently established by the commission of the acts and circumstances surrounding them. State v. Missenberger, 86 Idaho 321, 386 P.2d 559 (1963).

An information charging an assault with intent to commit murder by then and there striking, hitting, and beating a person with a heavy stick or club did not charge an assault with means and force likely to produce great bodily injury. State v. Singh, 34 Idaho 742, 203 P. 1064 (1921).

The charge that a man committed battery necessarily included the charge that the battery was preceded by an assault which culminated in the battery. There could be no battery without a previous assault. A person cannot wilfully strike another without making an unlawful attempt to do so. An assault is an inchoate battery. Hence, a complaint charging battery sustains a conviction for assault. State v. Wilding, 57 Idaho 149, 63 P.2d 659 (1936).

Indictment and Information.

Crime of assault with deadly weapon is not necessarily included in the statutory definition of murder, and therefore a person cannot be convicted of former crime under information for latter unless information alleges that the murder was committed by an assault with a deadly weapon, or by any means or force likely to produce great bodily injury. In re McLeod, 23 Idaho 257, 128 P. 1106 (1913); State v. Singh, 34 Idaho 742, 203 P. 1064 (1921).

An information charging an assault and battery on a named person by striking, beating, wounding and bruising him until he became unconscious and by reason of which he was permanently injured and suffered a long illness charged a battery. State v. Crawford, 32 Idaho 165, 179 P. 511 (1919).

Information held defective as not charging statutory elements. State v. Crawford, 32 Idaho 165, 179 P. 511 (1919).

Instruction.

The following instruction was correct: “A mere threat or menace to do violence, without any overt attempt to do violence is not an assault; an apparent effort to do violence, without the existence of a present ability at the time to do the violence apparently attempted, would not be an assault; and a gun is not a deadly weapon, within the meaning of this statute, unless it is loaded; consequently in this case, in order that you may find the defendant guilty, you must find beyond a reasonable doubt that he pointed and aimed a loaded gun at the complaining witness, within a distance at which the gun, if discharged, could have committed a violent injury upon the person of the complaining witness, and that the defendant unlawfully attempted to commit such injury by means of such gun.” State v. Yturaspe, 22 Idaho 360, 125 P. 802 (1912).

Rape.

In prosecution for statutory rape, defendant may be convicted of simple assault. State v. Garney, 45 Idaho 768, 265 P. 668 (1928). Charge of lewd and lascivious conduct on body of female child under age of 16 does not necessarily include assault with intent to rape, but charge of assault with intent to rape minor child does include charge of lewd and lascivious conduct. State v. Petty, 73 Idaho 136, 248 P.2d 218 (1952), appeal dismissed, 345 U.S. 834, 73 S. Ct. 834, 97 L. Ed. 2d 1364 (1953).

Am. Jur. 2d.

C.J.S.

ALR.

Consent as defense to charge of criminal assault. 58 A.L.R.3d 662.

Attempt to commit assault as criminal offense. 93 A.L.R.5th 683.

Comment note: Construction and application of “crime of violence” provision of U.S.S.G. § 2L1.2 pertaining to unlawfully entering or remaining in the United States after commission of felony offense. 68 A.L.R. Fed. 2d 55.

Prior Laws.

Former§ 18-902 was repealed. See Prior Laws,§ 18-901.

Decisions Under Prior Law

Discharging Firearm.

Firing a shotgun at and toward victim constituted battery. State v. Patterson, 60 Idaho 67, 88 P.2d 493 (1939).

Information or Indictment.

A complaint, charging the accused with battery by wilfully and unlawfully striking and fighting a certain person, charges an assault and will sustain a conviction for assault, since no battery could be committed without being preceded by assault. State v. Wilding, 57 Idaho 149, 63 P.2d 659 (1936).

Am. Jur. 2d.

C.J.S.

ALR.

§ 18-903. Battery defined.

A battery is any:

1. Willful and unlawful use of force or violence upon the person of another; or
2. Actual, intentional and unlawful touching or striking of another person against the will of the other; or
3. Unlawfully and intentionally causing bodily harm to an individual.

History.

I.C.,§ 18-903, as added by 1979, ch. 227, § 2, p. 624.

Prior Laws.

Former§ 18-903 was repealed. See Prior Laws,§ 18-901.

Applicability.

The requirement of unlawfulness under 11 U.S.C.S. § 507(a)(10), which establishes a tenth-level priority for claims for death or injury resulting from the operation of a motor vehicle if such operation was unlawful because the debtor was intoxicated, could not be established by proof of a violation of§§ 18-901 or 49-1401 or this section, because intoxication is not a separate element of the offenses covered by those sections. In re Loader, 406 B.R. 72 (Bankr. D. Idaho 2009).

Evidence.

Evidence that a lawyer touched a client without the solicitation of the client and against the client’s wishes and the touching resulted in bruises on the client’s arm was sufficient to prove that the lawyer was guilty of battery under subsection (b) of this section. Idaho State Bar v. Williams, 122 Idaho 404, 834 P.2d 1320 (1992). Evidence at trial was sufficient to support verdict that defendant used his pickup truck to perpetrate battery upon his wife, where there was evidence that this truck struck vehicle which defendant’s wife was driving. Willful use of force or intentional striking of another person made criminal by this section: (1) could be committed indirectly through intervening agency which defendant set in motion, (2) did not need to be committed directly against alleged victim, and (3) could be committed against anything intimately connected with person of alleged victim. State v. Townsend, 124 Idaho 881, 865 P.2d 972 (1993).

There was sufficient evidence to support defendant’s conviction of misdemeanor battery; the victim told police and the jury of defendant’s battery, and an officer testified as to the injuries the victim sustained as a result of the battery. State v. Anderson, 138 Idaho 359, 63 P.3d 485 (Ct. App. 2003).

Evidence of defendant’s alleged battery on an officer and other forceful resistance was not suppressible on the ground that the officer illegally entered defendant’s home because the officer did not derive evidence of this new criminal conduct from any exploitation of the unlawful entry. State v. Lusby, 146 Idaho 506, 198 P.3d 735 (Ct. App. 2008).

State presented substantial evidence upon which a rational trier of fact could conclude it proved the elements of battery on a correctional officer beyond a reasonable doubt, where the victim testified that defendant kicked him in the shoulder, and there was corroborating testimony and photographic and video evidence; State v. Kralovec, 161 Idaho 569, 388 P.3d 583 (2017).

— Insufficient.

Trial court’s order dismissing a charge of felony domestic battery against defendant was reversed, where the evidence was insufficient to support a finding that a police officer acted in bad faith in the loss of digital photographs of the alleged victim. State v. Casselman, 141 Idaho 592, 114 P.3d 150 (Ct. App. 2005).

— Sufficient.

Evidence was sufficient to support defendant’s convictions as an accomplice to aggravated battery, robbery, and burglary. Even though defendant did not actively participate in the actual robbery, he knowingly supplied a loaded gun for use in the robbery, knew about the money that the victim was saving, and exerted influence over his codefendants to perform the deed. State v. Mitchell, 146 Idaho 378, 195 P.3d 737 (Ct. App. 2008).

Defendant properly found guilty of battery against a doctor. Although defendant did not physically touch the doctor, her act of ripping out her intravenous (IV) drip and flinging it, which ejected fluid and blood that hit the doctor in the face, was an act that a reasonable jury could have found to establish, beyond a reasonable doubt, that defendant struck the doctor. State v. Nuse, 163 Idaho 262, 409 P.3d 842 (Ct. App. 2017).

Felony Domestic Violence.

Crime of felony domestic violence under§ 18-918(3) [now (2)(a)] requires a person to commit a battery, as defined in this section, and requires that the person willfully inflict a traumatic injury. State v. Reyes, 139 Idaho 502, 80 P.3d 1103 (Ct. App. 2003).

Included Offense.

An assault is a necessarily included offense of battery; an aggravated assault is a necessarily included offense of aggravated battery. State v. Eisele, 107 Idaho 1035, 695 P.2d 420 (Ct. App. 1985).

Informing Defendant of Offense Charged.

Section 19-608 requires that the person be informed of the cause of the arrest and not the charge for which he might eventually be made to answer; thus, although defendant’s underlying arrest was validated under a different charge (aggravated battery) than that for which he was originally cited (misdemeanor domestic battery), defendant was informed of the cause of his arrest, the alleged battery committed on his wife, and such arrest was lawful. State v. Julian, 129 Idaho 133, 922 P.2d 1059 (1996).

Intent.

Where defendant insisted 13-year-old girl go upstairs and show him where some towels were, followed her, blocked the hall, pushed her into the bedroom and, pointing to the bed, stated “Right here should be fine,” the jury could have reasonably concluded that, by successfully getting away, the girl had escaped being a victim of rape or lewd conduct; thus, defendant was unable to demonstrate on appeal that there was insufficient evidence to support the jury’s conviction for battery with the intent to commit a serious felony. State v. Monroe, 128 Idaho 676, 917 P.2d 1316 (Ct. App. 1996).

Proof of a violation of subsection (a) requires a showing that the accused purposely used force or violence upon the victim’s body, although it is not necessary that the defendant know that the act is illegal or intend that it cause bodily injury, but only that the defendant intend a forceful or violent contact with the other person, while a conviction for violation of subsection (b) requires proof of intent to touch or strike another person, and the intent element to be proved under subsection (c) is intent to cause bodily harm to a person; thus, under any of the subsections of this section, an intent to cause physical contact or touching is necessary. State v. Billings, 137 Idaho 827, 54 P.3d 470 (Ct. App. 2002).

Inconsistent Verdicts.

While jury’s finding that defendant was guilty of aggravated battery, which by definition included the use of a deadly weapon, was certainly inconsistent with its negative decision regarding a deadly weapon sentence enhancement, this bore no relevance to sufficiency of the evidence to uphold a guilty verdict on the aggravated battery charge. State v. Purdie, 144 Idaho 911, 174 P.3d 881 (Ct. App. 2007).

Jury Instructions.

Where the district court instructed the jury in an aggravated battery trial on the lesser included offense of injuring another by discharge of an aimed firearm, and also gave the jury an “acquittal first” instruction, the jury’s unanimous verdict convicting the defendant of aggravated battery foreclosed it from considering whether he was guilty of any lesser-included offenses, and any potential error in the district court’s failure to give requested instructions on additional lesser-included offenses was harmless. State v. Trejo, 132 Idaho 872, 979 P.2d 1230 (Ct. App. 1999).

Because a jury instruction defined assault and battery pursuant to§ 18-901 and this section and identified the specific mental states required for commission of the crimes, there was no need for a further instruction based on§ 18-114 to inform the jury of the required mental elements. State v. Hoffman, 137 Idaho 897, 55 P.3d 890 (Ct. App. 2002). In trial for aggravated battery, it was not reversible error for the court to decline the instruction requested by defendant which stated that he could not be convicted of acts committed through misfortune or accident, where defendant could, consistent with the given instructions, argue his theory. State v. Macias, 142 Idaho 509, 129 P.3d 1258 (Ct. App. 2005).

Juveniles.

Unlike status offenses, for which certain conduct is proscribed only if the actor is a juvenile, the perpetrator’s age is not an element of the offense of battery under this section. Where a seventeen-year-old minor committed battery, the state was not required to prove her status as a juvenile at the evidentiary hearing in order to establish her guilt. State v. Doe (In re Doe), 139 Idaho 344, 79 P.3d 165 (Ct. App. 2003).

Prosecutorial Misconduct.

Defendant’s conviction for felony domestic violence was appropriate because, while the prosecutor did commit misconduct by misstating the law in closing arguments, defendant failed to object and the misconduct on the part of the prosecutor did not rise to the level of fundamental error. State v. Coffin, 146 Idaho 166, 191 P.3d 244 (Ct. App. 2008).

Self-incrimination.

In prosecution for aggravated battery, district court erred in not declaring a mistrial, since prosecutor’s comment that no one had rebutted the state’s evidence was a violation of defendant’s right against self-incrimination. State v. McMurry, 143 Idaho 312, 143 P.3d 400 (Ct. App. 2006).

Sentence.

A unified sentence of 15 years with a minimum period of confinement of ten years for conviction of aggravated battery was not an abuse of discretion, where defendant inflicted numerous serious injuries upon the victim, who was his girlfriend, by beating her severely, defendant kicked or stomped on her with his feet, a glass dining room table was smashed over her body and chairs were piled on top of that, victim was found unconscious in a pool of blood by her landlady and young son, the victim received permanent physical damage and psychological harm and defendant’s criminal record consisted of six felony convictions, including sexual assault, breaking and entering and larceny, and 21 misdemeanors. State v. Burns, 121 Idaho 788, 828 P.2d 351 (Ct. App. 1992).

Supreme court in review of denial of Idaho R. Crim. P. 35 motion did not abuse its discretion in not reducing sentence of fifteen years for aggravated battery plus a consecutive enhancement of twelve years, where the sentence imposed was within the statutory maximums, where the crime committed involved an act of domestic violence which caused life-threatening harm to defendant’s former wife and was committed in the presence of their 14-year-old son, where although alcohol was a factor it could not be used as defense to excuse the actions, where there was no provocation for the attack which was a result of an ongoing cycle of domestic violence that escalated over the years, where the victim impact statement disclosed a long history of abuse and terror directed at former wife by defendant, where protection of victim and son were viewed as a paramount concern, and where defendant presented no evidence of any serious rehabilitation effort on his part. State v. Wickel, 126 Idaho 578, 887 P.2d 1085 (Ct. App. 1994). Since a sentencing court may, with due caution, consider the existence of a defendant’s alleged criminal activity for which no charges have been filed or where charges have been dismissed, there was no error in sentencing court’s determination of the significance to be placed on victim’s account of defendant’s prior, uncharged criminal acts against her. State v. Wickel, 126 Idaho 578, 887 P.2d 1085 (Ct. App. 1994).

Where district court found that defendant was a multiple offender with prior convictions of voluntary manslaughter and malicious wounding, that he lied in writing to the court regarding his prior offenses, and that he had the potential to inflict serious harm, defendant was unable to show on appeal that his sentence to a fixed term of 15 years for conviction for battery with intent to commit a serious felony was excessive under the facts. State v. Monroe, 128 Idaho 676, 917 P.2d 1316 (Ct. App. 1996).

Striking Police Officer.

There are five actions that can constitute a battery under this section: using force, using violence, touching, striking, or causing bodily harm. The plain language of§ 18-915(3) excepts only unlawful “touching” from those acts that constitute felony battery under that section. Therefore striking a police officer is a felony. State v. Castrejon, 163 Idaho 19, 407 P.3d 606 (Ct. App. 2017).

A.L.R.

§ 18-904. Battery — Punishment.

Battery is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not to exceed six (6) months, or both unless the victim is pregnant and this fact is known to the batterer, in which case the punishment is by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not to exceed one (1) year, or both.

History.

I.C.,§ 18-904, as added by 1979, ch. 227, § 2, p. 624; am. 1996, ch. 227, § 1, p. 741; am. 2005, ch. 359, § 3, p. 1133.

Prior Laws.

Former§ 18-904 was repealed. See Prior Laws,§ 18-901.

Prior Laws.

Former§ 18-905 was repealed. See Prior Laws,§ 18-901.

Compiler’s Notes.

The bracketed insertion at the end of subsection (b) was added by the compiler to correct the punctuation of the enacting legislation.

Constitutionality.

This section is not constitutionally defective for failure to define precisely the meaning of a “deadly weapon.” State v. Lenz, 103 Idaho 632, 651 P.2d 566 (Ct. App. 1982).

Deadly Weapon.

While the courts are divided on whether a pocket knife represents a “deadly weapon” per se, it is the general rule that a pocket knife may be a deadly weapon, depending on the circumstances of its use. Therefore, where the facts showed that the defendant pointed a pocket knife at two men and threatened to kill them, he was properly convicted of aggravated assault. State v. Lenz, 103 Idaho 632, 651 P.2d 566 (Ct. App. 1982). If an assailant uses a deadly weapon without intent to kill, then the crime becomes an aggravated assault. State v. Olson, 119 Idaho 370, 806 P.2d 963 (Ct. App. 1991).

Hands, or other body parts or appendages, may not, by themselves, constitute deadly weapons under this section. State v. Townsend, 124 Idaho 881, 865 P.2d 972 (1993).

Defendant’s post-conviction petition alleged that the information under which he was convicted failed to state a felony offense, as it charged that he committed aggravated assault with a deadly weapon by using his hands to choke the victim and State v. Townsend, 124 Idaho 881, 865 P.2d 972 (1993), held that hands and other body parts or appendages may not by themselves be considered deadly weapons; however, since defendant’s appeal from the district court’s decision was final at the time Townsend was decided, it did not apply to defendant’s case. Butler v. State, 129 Idaho 899, 935 P.2d 162 (1997).

Legislative policy expressed within§ 18-901 and this section evidence an intent that it is a victim’s reasonable perception that is dispositive of the question of whether a weapon, such as an unloaded crossbow, is deadly. State v. Cudd, 137 Idaho 625, 51 P.3d 439 (Ct. App. 2002).

Evidence.

— In General.

In prosecution for aggravated assault on a law enforcement officer, the admission of the defendant’s blood alcohol test result, even if error, was harmless, where testimony was adduced, without objection, that the defendant had been consuming alcoholic beverages and the test result simply confirmed that undisputed fact, and the evidence of intoxication actually could have been exculpatory under the instructions the trial court gave the jury on intent. State v. Missamore, 114 Idaho 879, 761 P.2d 1231 (Ct. App. 1988).

— Sufficient.

In prosecution for aggravated battery and aggravated assault, sufficient proof was presented for the jury to find beyond a reasonable doubt that the defendant acted in violation of the law and that he harbored the intent necessary to violate the laws, where he precipitated the conflict by confronting his parents, he discharged his weapon at persons in the yard around his home, and, as a result, one law enforcement officer was seriously injured. State v. McDougall, 113 Idaho 900, 749 P.2d 1025 (Ct. App. 1988).

Where defendant kicked wife one time in the head with his hiking boot and the kick resulted in a cut on wife’s head which required stitches to close, a rational trier of fact could have found beyond a reasonable doubt that the boot was of the type and used in such a manner that was likely to produce death or great bodily injury; therefore, the defendant’s conviction of aggravated assault with a deadly weapon was affirmed. State v. Huston, 121 Idaho 738, 828 P.2d 301 (1992).

The state offered sufficient substantial and competent evidence for a jury to convict defendant of aggravated assault on a law officer. State v. Daniels, 134 Idaho 896, 11 P.3d 1114 (2000).

Evidence was sufficient to support defendant’s conviction of aggravated battery and assault on a law officer, and there was no abuse of discretion in sentencing given defendant’s criminal history; a jury could have reasonably concluded from the evidence that defendant intended to shoot the officers involved in the altercation, instead of attempting suicide as defendant contended, given the fact that defendant pointed the gun at them when he gained control over it. State v. Hoffman, 137 Idaho 897, 55 P.3d 890 (Ct. App. 2002). Court, in defendant’s aggravated assault case, erred by dismissing the charge where there was probable cause to try defendant on the charge as there was sufficient evidence showing that defendant intended to make a threat to a roommate during a game of Russian roulette by pointing a gun at the roommate, and because the roommate was frightened. State v. Pole, 139 Idaho 370, 79 P.3d 729 (Ct. App. 2003).

Firearm.

— Enhancement of Sentence.

Where aggravated assault involved a firearm, the enhancement of defendant’s sentence for using a firearm did not violate his constitutional right against double jeopardy; the Idaho legislature intended that certain crimes, when committed with a firearm, should receive greater penalties than if no firearm had been used, and the legislature adopted this section and§ 19-2520 to achieve this result. State v. Metzgar, 109 Idaho 732, 710 P.2d 642 (Ct. App. 1985).

District court should not have instructed the jury on the firearm enhancement by defining a firearm consistent with the definition of a deadly weapon in this section. State v. McLeskey, 138 Idaho 691, 69 P.3d 111 (2003).

Defendant’s sentence for aggravated assault, with a sentence enhancement for using a deadly weapon during the crime, was vacated and remanded for resentencing without an enhancement as, the finding that defendant used a firearm in committing the assault was not equivalent of a finding needed for deadly weapon enhancement. State v. Donk, 145 Idaho 582, 181 P.3d 508 (Ct. App. 2007).

Included Offense.

An assault is a necessarily included offense of battery; an aggravated assault is a necessarily included offense of aggravated battery. State v. Eisele, 107 Idaho 1035, 695 P.2d 420 (Ct. App. 1985).

Because the use of a pistol was recited in the elements of the aggravated assault and also appeared in the kidnapping enhancement as charged, the aggravated assault charge was an included offense of the kidnapping charge, and a separate conviction for aggravated assault must be vacated. State v. Bryant, 127 Idaho 24, 896 P.2d 350 (Ct. App. 1995).

Even assuming that the misdemeanor offenses of exhibition or use of a deadly weapon, aiming a firearm at others, and discharge of arms aimed at another were lesser included offenses which the district court was obligated to offer to the jury, any error in the district court’s failure to give the instructions was harmless under the “acquittal first” requirement of§ 19-2132(c). Jury would not have considered the lesser included misdemeanor offenses because it had unanimously concluded defendant was guilty of felony aggravated assault (a lesser included offense than the one charged of assault with intent to commit a serious felony). State v. Hudson, 129 Idaho 478, 927 P.2d 451 (Ct. App. 1996).

Information.

Where the information filed in an aggravated assault prosecution contained a plain, concise, and definite statement of the essential facts constituting the offense charged, the failure of the information to list the precise subsections of the statutes that the defendant was alleged to have violated did not render the information legally insufficient. State v. Lenz, 103 Idaho 632, 651 P.2d 566 (Ct. App. 1982). Where although the judge did not explicitly define the intent element of the alleged crime, but did state the offense charged and enunciated defendant’s rights, including the right to insist that the state meet its burden of proof, and also asked the prosecutor to narrate the underlying facts which he did, defendant was informed of the gravamen of the charge against him and was adequately informed of the nature of the charge, aggravated assault. State v. Bonaparte, 114 Idaho 577, 759 P.2d 83 (Ct. App. 1988).

Instructions.

In prosecution for aggravated assault, the trial court did not err in refusing to give the requested self-defense instructions where any threat to the defendant had subsided when the victim left his presence; thus, he was not “about to be injured” and lawful resistance was unnecessary. State v. Mason, 111 Idaho 660, 726 P.2d 772 (Ct. App. 1986).

In prosecution for aggravated assault, the evidence did not require the court to give the requested instruction on assault, where the defendant admitted holding the gun but denied pointing it or making a threatening statement. State v. Mason, 111 Idaho 660, 726 P.2d 772 (Ct. App. 1986).

In prosecution for aggravated assault, the trial court erred in refusing to give the exhibiting a deadly weapon instruction requested by the defendant, where the jury could have concluded that the defendant — not acting in self-defense — and in the presence of at least four witnesses exhibited his revolver in a rude, angry and threatening manner. State v. Mason, 111 Idaho 660, 726 P.2d 772 (Ct. App. 1986).

Defendant’s conviction was vacated because the statement in the jury instruction that “upon a showing of criminal negligence, the law will impute or attribute to the defendant a willful intention even though he may not in fact have entertained such intention” diminished the state’s burden on the mental element of assault under§ 18-901(b) and in effect modified the mens rea element from intent to negligence. State v. Crowe, 135 Idaho 43, 13 P.3d 1256 (Ct. App. 2000).

Erroneous jury instruction on the definition of general criminal intent was harmless where overwhelming evidence showed that defendant’s act of firing a pistol across several lanes of traffic at a place where the victims were standing created a well-founded fear in the young victims that they were being threatened with violence. The evidence was sufficient to convict defendant of aggravated assault where, in addition to firing the pistol, defendant pursued the victims into a mall, a shell casing was found near the location where the shot was fired, and a pistol was found near where the defendant was arrested after a high speed police chase. State v. Hansen, 148 Idaho 442, 224 P.3d 509 (Ct. App. 2009).

No Breach of Plea Agreement.

Because the record did not support the conclusion that the victim’s mother was presenting testimony at sentencing at the initiative of or on behalf of the state, the court was unable to conclude that the prosecutor acted contrary to the provisions of the plea agreement where defendant pleaded guilty to aggravated assault in violation of§ 18-901 and this section. UnderIdaho Const., Art. I, § 22(6) and§ 19-5306(1)(e), crime victims were guaranteed the right to be heard upon request at sentencing hearings, and the state had informed the trial court that the mother wanted to address the court on behalf of the victim, and the trial court allowed the statement as a victim impact statement, and the issue of whether the trial court erred in allowing the mother to give such a statement was not preserved for review. State v. Jones, 141 Idaho 673, 115 P.3d 764 (Ct. App. 2005). State’s recommendation of the longest permissible underlying sentence in defendant’s case for aggravated assault in violation of§ 18-901 and this section was not inconsistent with the recommendation of retained jurisdiction under§ 19-2601 and did not amount to a recommendation against retained jurisdiction; therefore, no breach of the plea agreement was shown. State v. Jones, 141 Idaho 673, 115 P.3d 764 (Ct. App. 2005).

Prosecutorial Misconduct.

In prosecution for aggravated assault on a law enforcement officer, the prosecutor’s remark improperly predicting future confrontations between the defendant and the police was not fundamental error, requiring reversal of the judgment of conviction, where the defendant made no objection to the argument, nor did he move for a mistrial or otherwise challenge the comment before the case was submitted to the jury, and the remark was not so egregious or inflammatory that any prejudice arising therefrom could not have been remedied by a ruling from the trial court. State v. Missamore, 114 Idaho 879, 761 P.2d 1231 (Ct. App. 1988).

Where defendant was convicted of aggravated assault for hitting a car windshield with a pickax, which defendant and other witnesses claimed was accidental, a new trial was warranted because (1) the prosecutor’s rebuttal argument suggested that jurors ought to respond to the testimony of defendant and witnesses with irritation and resentment, (2) the prosecutor’s statements were improper appeals to the jury’s passion or prejudice, and (3) the error was not harmless. State v. Phillips, 144 Idaho 82, 156 P.3d 583 (Ct. App. 2007).

Sentence.

The defendant’s five-year indeterminate sentence for aggravated assault was not an abuse of discretion, despite factors which mitigated against imposing a maximum sentence, where the defendant had previously been convicted of other felonies and had a history of probation violations. State v. Bell, 115 Idaho 81, 764 P.2d 448 (Ct. App. 1988).

Where defendant, convicted of aggravated assault, second degree kidnapping, misdemeanor battery, and use of a firearm in the commission of a crime, had an extensive criminal record, where it was apparent that some of his previous criminal behavior involved violence and he had before violated law regarding use of firearms and demonstrated that he seemed to be drawn toward criminal behavior and where district judge noted that defendant had almost no prospects for rehabilitation, that he had violated probation in the past and it was, in fact, only a day after his release from jail that the present offenses occurred, it was reasonable to conclude that serious risk of harm to the public might result absent a lengthy period of incarceration; therefore, sentence that would result in ten years incarceration was not unreasonable in light of sentencing goals which include: retribution, rehabilitation, deterrence and the protection of society. State v. Arledge, 119 Idaho 584, 808 P.2d 1329 (Ct. App. 1991).

The record reveals that the court properly considered the appropriate goals of sentencing when it imposed the five-year term, noted the violence inherent in defendant’s act, and ordered a sentence within the statutory maximum. State v. Adams, 120 Idaho 350, 815 P.2d 1090 (Ct. App. 1991). The 15-year indeterminate part of defendant’s sentences was reasonable in light of his numerous prior alcohol-related driving offenses and his extensive history of repetitive unlawful behavior. State v. Hildreth, 120 Idaho 573, 817 P.2d 1097 (Ct. App. 1991).

The judge fairly considered each of the sentencing factors in that he noted the defendant undoubtedly had been an outstanding worker who could be a productive member of society but for his alcohol and glue addictions; the protection of society was properly considered to be of primary importance in arriving at an appropriate sentence; defendant was a longtime alcoholic; he had undergone counseling and treatment; he had been given probation, paid fines and been incarcerated several times, and nothing had worked to stop his driving while intoxicated; and no short-term rehabilitative program had been shown to be effective; therefore, the five-year minimum period of incarceration was reasonable for the crime of DUI and aggravated assault. State v. Hildreth, 120 Idaho 573, 817 P.2d 1097 (Ct. App. 1991).

The district court did not abuse its sentencing discretion when it ordered the execution of a previously imposed sentence and modified the sentence to four years fixed with one-year indeterminate for aggravated assault. The court adequately considered the extent of defendant’s mental state when combined with her substance addiction and her extensive record. State v. Tesheep, 122 Idaho 759, 838 P.2d 888 (Ct. App. 1992).

Sentence imposed of a unified five-year term with three and one-half years determinate for defendant’s aggravated assault conviction under§ 18-901 and this section was not excessive; defendant had a substantial criminal record and the record on appeal did not support defendant’s claim that the trial court disregarded mitigating factors, and there was also sufficient evidence for the trial court to find that defendant was not suitable for retained jurisdiction or probation, pursuant to§ 19-2601; thus the trial court did not err in finding that retained jurisdiction was inappropriate and that a prison sentence was necessary. State v. Jones, 141 Idaho 673, 115 P.3d 764 (Ct. App. 2005).

Decisions Under Prior Law

Assault by Pointing Pistol.

In prosecution for assault by pointing pistol, state must show that pistol was loaded at time it was pointed. State v. Yturaspe, 22 Idaho 360, 125 P. 802 (1912); State v. Bush, 50 Idaho 166, 295 P. 432 (1930).

Evidence of Prior Conduct.

In prosecution of tribal game warden for assault with a dangerous and deadly weapon, evidence tending to show that defendant had either expressly or impliedly threatened to use a firearm or actually pointed a firearm at persons trespassing on the reservation was properly admitted as bearing on defendant’s intent and state of mind. United States v. Burns, 529 F.2d 114 (9th Cir. 1975).

Included Offense.

Where the information charged an aggravated battery, committed by defendant with premeditated design and by means calculated and likely to inflict great bodily injury, the information was sufficient to charge an aggravated assault as well as aggravated battery; the assault having been alleged as the manner and means of the commission of the aggravated battery, it was an included offense and the information, therefore, was not duplicitous. State v. Blacksten, 86 Idaho 401, 387 P.2d 467 (1963).

Indictment and Information.

Crime of assault with deadly weapon is not necessarily included in statutory definition of murder; therefore, a person cannot be convicted of former crime under an information for latter, unless information alleges that the murder was committed by an assault with a deadly weapon, or by a means or force likely to produce great bodily injury. In re McLeod, 23 Idaho 257, 128 P. 1106 (1913); State v. Singh, 34 Idaho 742, 203 P. 1064 (1921).

The court held that charging part of information does not mention elements of an assault found in the statutory definition, but does charge battery. State v. Crawford, 32 Idaho 165, 179 P. 511 (1919).

Demurrer to information charging assault with two deadly weapons, on ground that it stated two offenses, should not be sustained. State v. Bush, 50 Idaho 166, 295 P. 432 (1930).

The language of the charging part of the information, of “assault with intent to commit murder” was sufficient to charge “assault with a deadly weapon,” an included offense pursuant to§ 19-2312; it clearly appeared that the intent of appellant to do what the jury found he did was sufficiently established by the commission of the acts and circumstances surrounding them. State v. Missenberger, 86 Idaho 321, 386 P.2d 559 (1963).

The fact that information did not separately name the offenses of assault with intent to murder and assault with a deadly weapon in no way prejudiced defendant. State v. Polson, 92 Idaho 615, 448 P.2d 229 (1968), cert. denied, 395 U.S. 977, 89 S. Ct. 2129, 23 L. Ed. 2d 765 (1969).

Information.

In General.

An information which charged that the defendant assaulted the prosecuting witness “with the premeditated design then and there had, by a use and means calculated to inflict great bodily injury . . . by striking and beating him with his hands and fists and by kicking” him was sufficient as against demurrer. State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967). In General.

Assault, if committed with a deadly weapon or by means of force likely to produce bodily injury, is an assault with a deadly weapon and punishable as such. It may be committed without wilful intent, if perpetrator be guilty of criminal negligence in the use of the weapon or force whereby it is committed. State v. Patterson, 60 Idaho 167, 88 P.2d 493 (1939).

Instructions.

Failure of court to give instruction as to disparity of age and physical condition of the parties to an affray, justifying the weaker and older party in using a weapon to defend himself, was not reversible error, where the jurors had both parties before them and were qualified to determine whether the defendant, being the older was the weaker of the two and was justified in using the force and means used. State v. Blacksten, 86 Idaho 401, 387 P.2d 467 (1963).

Where a considerable disparity is revealed by the evidence or the appearance of the parties, the court may, in its discretion, instruct on the disparity in the ages and physical conditions of the parties to the affray and that such disparity might justify the weaker in using a weapon to defend himself though the other party be unarmed. State v. Blacksten, 86 Idaho 401, 387 P.2d 467 (1963).

Lesser Included Offenses.

Assault with a deadly weapon is not “necessarily committed” in the commission of attempted rape, because attempted rape is not always committed with a deadly weapon nor is attempted rape necessarily committed in an assault with a deadly weapon, because such an assault is not always committed with an intent to rape; thus, where neither crime was alleged, in the prosecutor’s information, to be the means or an element of the commission of the other, assault with a deadly weapon was not an included offense of the attempted rape. Bates v. State, 106 Idaho 395, 679 P.2d 672 (Ct. App. 1984).

Performance of Police Duties.

In prosecution of tribal game warden for assault with a dangerous and deadly weapon, evidence that defendant pointed a loaded automatic pistol at non-Indian who had trespassed onto Indian reservation for the purpose of crossing over onto public land supported trial court’s finding that defendant’s conduct went beyond the force necessary to carry out his duty as a game warden. United States v. Burns, 529 F.2d 114 (9th Cir. 1975).

Sentence.

Where the sentence imposed is within the statutory limits, defendant has the burden of showing a clear abuse of discretion, which is dependent upon the circumstances of each case. State v. Chapa, 98 Idaho 54, 558 P.2d 83 (1976).

Where a presentence report in a prosecution for robbery and assault with a deadly weapon did not make clear the number of felonies with which the defendant had previously been charged but did establish three previous felony convictions, the error, if any, was not prejudicial. State v. Jagers, 98 Idaho 779, 572 P.2d 882 (1977).

Despite court’s acknowledgment that two-year prison sentence given to defendant convicted of aggravated battery of infant daughter under former law, defining aggravated assault and battery and providing punishment therefor, would be of no rehabilitative value, sentence was not improper inasmuch as it was well within the three-year statutory maximum provided in former law and was imposed in order to deter others from committing similar offenses. State v. Adams, 99 Idaho 75, 577 P.2d 1123 (1978). Where, even though defendant’s criminal record was clean during the years immediately preceding the crimes charged, he had previously been convicted of multiple felony and misdemeanor charges, had been incarcerated numerous times, and had suffered from an uncontrollable alcohol problem, and where his crime was of a violent nature, involving the firing of some 16 rounds of ammunition at two police officers and defendant’s mother, there was no abuse of discretion in imposing maximum five-year sentence for each of two counts of assault with a deadly weapon and an additional five years under§ 19-2520. State v. Olsen, 103 Idaho 278, 647 P.2d 734 (1982).

Voluntariness of Plea.

Where information specifically alleged that defendant “intentionally” attempted to rape the victim, where there was no assertion that defendant was not conversant with the English language nor was he a stranger to the charge of attempted rape, having been previously convicted of attempted rape and forcible rape, and where details of assault were fully explored at preliminary hearing, defendant was made aware, before pleading guilty, of evidence the state could offer at trial to prove both the acts and the intent comprising the attempted rape, and the district court did not err in determining that, under both the federal and state standards, pleas of guilty to attempted rape and assault with a deadly weapon were voluntary. Bates v. State, 106 Idaho 395, 679 P.2d 672 (Ct. App. 1984).

Am. Jur. 2d.

C.J.S.

ALR.

Kicking as aggravated assault, or assault with dangerous or deadly weapon. 19 A.L.R.5th 823.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery. 124 A.L.R.5th 657.

Cigarette lighter as deadly or dangerous weapon. 22 A.L.R.6th 533.

Parts of human body, other than feet, as deadly or dangerous weapons or instrumentalities for purposes of statutes aggravating offenses such as assault and robbery. 67 A.L.R.6th 103.

Cross References.

Aiming firearms,§§ 18-3304, 18-3305.

Concealed weapons, carrying under influence of alcohol or drugs,§ 18-3302B.

Discharge of firearm at dwelling house, occupied building, vehicle or mobile home unlawful,§ 18-3317.

Exhibition or use of deadly weapons,§ 18-3303.

Minor, possession of weapons by,§§ 18-3302E, 18-3302F.

Minor, sale of weapons to,§ 18-3302A.

Minor, selling of explosives, ammunition or firearms to,§ 18-3308.

Possession of deadly weapon with intent to assault,§ 18-3301.

Prohibited conduct by person licensed to carry a concealed weapon,§ 18-3302C.

School property, carrying weapons or firearms on,§ 18-3302D.

Unlawful possession of a firearm,§ 18-3316.

Prior Laws.

Former§ 18-906 was repealed. See Prior Laws,§ 18-901.

Lesser Included Offense.

Where there was only one event, defendant’s shooting at victim’s door, on which charges could be based, the charge of assault with a deadly weapon was a lesser included offense in a charge of attempted robbery, such as to preclude conviction of both charges under the double jeopardy clause of the fifth amendment of the United States Constitution and the Idaho Constitution. State v. Thompson, 101 Idaho 430, 614 P.2d 970 (1980).

An assault is a necessarily included offense of battery; an aggravated assault is a necessarily included offense of aggravated battery. State v. Eisele, 107 Idaho 1035, 695 P.2d 420 (Ct. App. 1985).

Sentence.

Since penalty for attempted robbery is half of sentence for robbery, which is imprisonment for five years to life, while punishment for assault with a deadly weapon is not more than five years, assault could not be considered the greater offense on the grounds that it carried greater penalty. Although half of life sentence cannot be calculated, court can set base maximum sentence at less than life and use such maximum to determine the sentence for attempt so that actual sentence fixed for attempted robbery may be less than sentence for assault with deadly weapon. State v. Thompson, 101 Idaho 430, 614 P.2d 970 (1980).

An indeterminate sentence of three years’ confinement to run concurrently with a previous conviction was well within the discretion of the sentencing court in view of the defendant’s previous record and the presentence report. State v. Larson, 109 Idaho 868, 712 P.2d 569 (1985).

A maximum sentence of a fixed period of five years, where the actual period of imprisonment would be approximately three and two-thirds years, imposed where, following plea negotiations, defendant who was initially charged with assault accompanied by intent to commit a serious felony and with attempted rape entered a plea of guilty of aggravated assault, was not an abuse of sentencing discretion, where defendant entered residence with intent to commit burglary and upon confronting victim brandished a gun and threatened her with rape, even though defendant had suffered a troubled childhood, the death of his mother, the contribution of alcohol to his behavior and had no prior felonies as an adult and the fact that he did not physically harm the victim and had compassion when she became ill. State v. Torres, 112 Idaho 801, 736 P.2d 853 (Ct. App. 1987).

Although, in prosecution for aggravated assault and aggravated battery, it was the defendant’s first criminal conviction, it involved a particularly serious and violent series of offenses which resulted in probable permanent injury to one victim, and a diminished capacity to act rationally does not excuse the crime; therefore, the district court did not abuse its discretion in giving an indeterminate 15-year sentence for the battery and indeterminate five-year sentences for the assaults—all to run concurrently. State v. McDougall, 113 Idaho 900, 749 P.2d 1025 (Ct. App. 1988).

Where defendant charged with aggravated assault was sentenced to a five-year indeterminate sentence, of which defendant would serve at least 20 months in confinement since the result of defendant’s action in firing the gun easily could have been a homicide and his presentence report revealed a long string of minor crimes and the trial judge noted the seriousness of the offense, as well as defendant’s prior record, acknowledged the role played by alcohol in defendant’s misconduct and concluded that incarceration was the only sentencing alternative reasonably available to protect society from further danger, the reasons given by the judge for the sentence he imposed were sound and there was no abuse of sentencing discretion. State v. Bonaparte, 114 Idaho 577, 759 P.2d 83 (Ct. App. 1988).

A trial court did not abuse its discretion by imposing a five-year minimum period of confinement which was equal to the maximum punishment allowed for aggravated assault in light of the court’s concern for the defendant’s history of violent crime and the fact that defendant was on parole when he committed the charged offense. State v. Gibson, 116 Idaho 265, 775 P.2d 157 (Ct. App. 1989).

Where defendant, convicted of aggravated assault, second degree kidnapping, misdemeanor battery, and use of a firearm in the commission of a crime, had an extensive criminal record, where it was apparent that some of his previous criminal behavior involved violence and he had before violated law regarding use of firearms and demonstrated that he seemed to be drawn toward criminal behavior and where district judge noted that defendant had almost no prospects for rehabilitation, that he had violated probation in the past and it was, in fact, only a day after his release from jail that the present offenses occurred, it was reasonable to conclude that serious risk of harm to the public might result absent a lengthy period of incarceration and, therefore, sentence that would result in ten years incarceration was not unreasonable in light of sentencing goals which include: retribution, rehabilitation, deterrence and the protection of society. State v. Arledge, 119 Idaho 584, 808 P.2d 1329 (Ct. App. 1991). The record reveals that the court properly considered the appropriate goals of sentencing when it imposed the five-year term, noted the violence inherent in defendant’s act, and ordered a sentence within the statutory maximum. State v. Adams, 120 Idaho 350, 815 P.2d 1090 (Ct. App. 1991).

A unified sentence of five years with a fixed two-year period of confinement for one count of aggravated assault was confirmed, where defendant, who had an extensive history with the criminal justice system, entered his estranged wife’s house, became extremely upset at the sight of his wife and children in the company of another man, chased the man with a butcher knife, and struck his estranged wife. State v. Cortez, 122 Idaho 439, 835 P.2d 674 (Ct. App. 1992).

Prior Laws.

Former§ 18-907 was repealed. See Prior Laws,§ 18-901.

Amendments.

The 2002 amendment, by ch. 330, § 4, added subsections (1)(e) through (4).

The 2002 amendment, by ch. 337, § 2, in subsection (3), substituted “There” for “Nothing in this section” and “no” for “construed to permit the” near the beginning and added “under subsection (1)(e) of this section” at the end.

Deadly Weapon or Instrument.

In determining whether an instrumentality comes within subdivision (b) (now (1)(b)) of this section, the triers of fact must examine the circumstances of its use; thus, where the evidence showed that the defendant inmate swung a sock weighted with batteries at the head of the prison guard, causing a laceration that required fifteen stitches, the evidence was sufficient to enable the jury to determine that the sock weighted with batteries was a “deadly weapon or instrumentality”. State v. Jones, 109 Idaho 31, 704 P.2d 363 (Ct. App. 1985).

Although a firearm was not the instrument of physical contact with a battery victim, the jury reasonably could have found that such a weapon was employed to intimidate the victim, causing her to endure physical contacts which she might otherwise have resisted or attempted to evade during defendant’s physical contact with her and, under these circumstances, the jury’s determination that deadly weapon was used within the meaning of this section was proper. State v. Cates, 117 Idaho 90, 785 P.2d 654 (Ct. App. 1989).

The appellate court could not say there was insufficient evidence before the trial jury to support the jury’s verdict that a sulphur gun used by an inmate in an assault on a correctional officer was a deadly weapon; the prison doctor testified that the officer’s eye could have been permanently disabled and the defendant testified that he used the gun in his left hand and turned his eyes away to avoid injury to his good hand or to his eyes if the gun blew up. State v. Matthews, 118 Idaho 659, 798 P.2d 941 (Ct. App. 1990).

Expert testified that the wounds were consistent with those made with a knife and had they been in different locations on victim’s chest, her life could have been threatened; therefore, there was substantial evidence upon which the jury could have found beyond a reasonable doubt that defendant had attacked victim with a deadly weapon. State v. Hernandez, 120 Idaho 653, 818 P.2d 768 (Ct. App. 1991).

Where the state alleges and proves the use of a deadly weapon as an element of aggravated battery under this section, the nature or extent of the injury suffered by the victim is secondary. State v. Hernandez, 120 Idaho 653, 818 P.2d 768 (Ct. App. 1991).

Hands, or other body parts or appendages, may not, by themselves, constitute deadly weapons under this section. State v. Townsend, 124 Idaho 881, 865 P.2d 972 (1993).

Court did not err in giving a jury instruction as to the elements of aggravated battery where evidence indicated that defendant actually, intentionally and unlawfully touched victims with a pistol by placing the barrel of the gun on one victim’s forehead and pushed it into the stomach of the other victim, and both victims testified they did not resist or flee for fear of being shot. State v. Velasquez-Delacruz, 125 Idaho 320, 870 P.2d 673 (Ct. App. 1994).

Evidence.

Even though the doctor was allowed to give his opinion as to whether “great bodily injury (harm),” one of the elements of the aggravated battery charge against the defendant, could have resulted from the victim’s injuries, there was no abuse of discretion that would warrant a reversal of the conviction, where testimony by the doctor, in addition to his opinion, overwhelmingly established that great bodily injury occurred, and the jury was instructed by the judge that it should consider the nature and extent of any injuries in deciding whether those injuries were likely to cause great bodily harm. State v. Crawford, 110 Idaho 577, 716 P.2d 1349 (Ct. App. 1986). In prosecution for aggravated battery and aggravated assault, sufficient proof was presented for the jury to find beyond a reasonable doubt that the defendant acted in violation of the law and that he harbored the intent necessary to violate the laws, where he precipitated the conflict by confronting his parents, he discharged his weapon at persons in the yard around his home, and, as a result, one law enforcement officer was seriously injured. State v. McDougall, 113 Idaho 900, 749 P.2d 1025 (Ct. App. 1988).

Evidence was sufficient to support the jury’s verdict convicting defendant of aggravated battery where the state’s evidence included photographs and the testimony of persons who witnessed the altercation at the campground, where a pathologist testified that the victim exhibited extensive bruising to her head, the area of her left eye, lips and neck and that the neck injuries were of “grave concern,” “life threatening,” and sufficient to cause death, and where defendant himself admitted that he had choked the victim and had forced her to the ground during an altercation. State v. Clark, 115 Idaho 1056, 772 P.2d 263 (Ct. App. 1989).

Evidence was sufficient to support defendant’s conviction of aggravated battery and assault on a law officer in violation of§§ 18-901(b), 18-903, 18-905(a), 18-907 and 18-915, and there was no abuse of discretion in sentencing, given defendant’s criminal history; a jury could have reasonably concluded from the evidence that defendant intended to shoot the officers involved in the altercation, instead of attempting suicide as defendant contended, given the fact that defendant pointed the gun at them when he gained control over it. State v. Hoffman, 137 Idaho 897, 55 P.3d 890 (Ct. App. 2002).

— Sufficient.

Evidence was sufficient to support defendant’s convictions as an accomplice to aggravated battery, robbery, and burglary. Even though defendant did not actively participate in the actual robbery, he knowingly supplied a loaded gun for use in the robbery, knew about the money that the victim was saving, and exerted influence over his codefendants to perform the deed. State v. Mitchell, 146 Idaho 378, 195 P.3d 737 (Ct. App. 2008).

Federal Crime.

The Indiana major crimes act, 18 U.S.C.S. § 1153, is preemptive of state jurisdiction with respect to crimes enumerated therein. Thus, defendant, an enrolled member in the Nez Perce Tribe, was subject to federal prosecution for the crime of aggravated battery, against his child, an enrolled member of the Thlingit Tribe. State v. Marek, 112 Idaho 860, 736 P.2d 1314 (1987).

“Great Bodily Harm”.

Inconsistent Verdicts.

Statutory phrase “great bodily harm,” as used in the prosecutor’s information, was an adequate statement of the essential facts constituting the “aggravated” component of the battery since the statutory phrase set down a statement of an act necessary to constitute the commission of an aggravated battery such as to enable a person of common understanding to know what is intended. State v. Clark, 115 Idaho 1056, 772 P.2d 263 (Ct. App. 1989). Inconsistent Verdicts.

While jury’s finding that defendant was guilty of aggravated battery, which by definition included the use of a deadly weapon, was certainly inconsistent with its negative decision regarding a deadly weapon sentence enhancement, this bore no relevance to sufficiency of the evidence to uphold a guilty verdict on the aggravated battery charge. State v. Purdie, 144 Idaho 911, 174 P.3d 881 (Ct. App. 2007).

Informing Defendant of Offense Charged.

Section 19-608 requires that the person be informed of the cause of the arrest and not the charge for which he might eventually be made to answer; thus, although defendant’s underlying arrest was validated under a different charge (aggravated battery) than that for which he was originally cited (misdemeanor domestic battery), defendant was informed of the cause of his arrest, the alleged battery committed on his wife, and such arrest was lawful. State v. Julian, 129 Idaho 133, 922 P.2d 1059 (1996).

Intent.

Sufficient evidence supported the jury’s finding that the state had proved aggravated battery, including the intent element; although there was no direct evidence that defendant intended that his shotgun pellets would strike the victim, facts were presented from which such an intent could be inferred, including the nature of the weapon used, a shot gun which does not fire a bullet but rather a shotgun shell containing scores of pellets that spray out when the weapon is fired, and the defendant’s own testimony that he was well-experienced in the use of a shotgun and his acknowledgement that if shotgun pellets hit the ground, “when there’s gravel and stuff there, they can ricochet.” State v. Billings, 137 Idaho 827, 54 P.3d 470 (Ct. App. 2002).

Court properly dismissed defendant’s aggravated battery charge where the evidence presented at the preliminary hearing failed to show that defendant knew that the victim was in an adjacent apartment or that defendant intended that someone bear the brunt of the force or violence caused by the firing of the handgun. State v. Pole, 139 Idaho 370, 79 P.3d 729 (Ct. App. 2003).

Jury Instruction.

Where the district court instructed the jury in an aggravated battery trial on the lesser included offense of injuring another by discharge of an aimed firearm and also gave the jury an “acquittal first” instruction, the jury’s unanimous verdict convicting the defendant of aggravated battery foreclosed the jury from considering whether defendant was guilty of any lesser-included offenses, and any potential error in the district court’s failure to give requested instructions on additional lesser-included offenses was harmless. State v. Trejo, 132 Idaho 872, 979 P.2d 1230 (Ct. App. 1999).

In trial for aggravated battery, it was not reversible error for the court to decline the instruction requested by defendant which stated that he could not be convicted of acts committed through misfortune or accident, where defendant could, consistent with the given instructions, argue his theory. State v. Macias, 142 Idaho 509, 129 P.3d 1258 (Ct. App. 2005).

Lesser Included Offense.

A battery becomes aggravated battery because of the great bodily harm caused, not because of an intent to cause that harm. An instruction to the jury that defendant had to have intended to cause great bodily harm to the victim would not have been an accurate statement of the law. State v. Carver, 155 Idaho 489, 314 P.3d 171 (2013). Lesser Included Offense.

The aggravated battery was not a lesser included offense of murder, because a jury reasonably could conclude from the evidence that the victim had suffered an aggravated battery prior to the germination of the idea to murder him. State v. Campbell, 114 Idaho 367, 757 P.2d 230 (Ct. App. 1988), cert. denied, 490 U.S. 1070, 109 S. Ct. 2076, 104 L. Ed. 2d 640 (1989).

The aggravated battery was not a lesser included offense of the kidnapping because the aggravated battery, although sequentially related to the kidnapping, was a separate and distinct crime, requiring elements of proof beyond that required for the kidnapping. State v. Campbell, 114 Idaho 367, 757 P.2d 230 (Ct. App. 1988), cert. denied, 490 U.S. 1070, 109 S. Ct. 2076, 104 L. Ed. 2d 640 (1989).

Reversible Error.

Jury instruction which allowed jury to convict defendant of an offense different from which he was charged was reversible error. State v. Sherrod, 131 Idaho 56, 951 P.2d 1283 (Ct. App. 1998).

Conviction was vacated where, taking the excessive cross-examination and the final argument of the prosecutor together, it was clear that the prosecution went far beyond use of the post- Miranda silence of defendant for any legitimate purpose and sought to establish guilt by defendant’s exercise of a constitutional right to remain silent. State v. Strouse, 133 Idaho 709, 992 P.2d 158 (1999).

Self-incrimination.

In prosecution for aggravated battery, district court erred in not declaring a mistrial, since prosecutor’s comment that no one had rebutted the state’s evidence was a violation of defendant’s right against self-incrimination. State v. McMurry, 143 Idaho 312, 143 P.3d 400 (Ct. App. 2006).

Sentence.

Because the trial judge gave sound reasons for the sentence imposed and because his retained jurisdiction would enable him to modify the sentence in the event the proposed rehabilitative measures were not followed, the defendant’s sentence of an indeterminate term of four years for aggravated battery was not excessive. State v. Burroughs, 107 Idaho 195, 687 P.2d 585 (Ct. App. 1984).

The legislature clearly intended the enhancement provision of§ 19-2520 to apply to aggravated battery committed with a firearm. State v. Cootz, 110 Idaho 807, 718 P.2d 1245 (Ct. App. 1986).

A district judge did not abuse his discretion in sentencing aggravated battery defendant to six years with a four-year minimum period of confinement despite defendant’s physical ailments, where defendant had a long-standing problem of alcohol and substance abuse, had a prior criminal record, and was on parole from another state at the time of his conviction. State v. Rankin, 115 Idaho 728, 769 P.2d 605 (Ct. App. 1989).

Where defendant admitted to forcing a girl’s car off the road, threatening her and stabbing her several times in the back before she freed herself from him, pursuant to an amended information charging him with aggravated battery with an enhancement for the use of a weapon, a sentence of 30 years, with ten years fixed, was not an abuse of discretion. State v. King, 120 Idaho 955, 821 P.2d 1010 (Ct. App. 1991). A unified sentence of 15 years with a minimum period of confinement of ten years for conviction of aggravated battery was not an abuse of discretion where defendant inflicted numerous serious injuries upon the victim, who was his girlfriend, by beating her severely, defendant kicked or stomped on her with his feet, a glass dining room table was smashed over her body and chairs were piled on top of that, victim was found unconscious in a pool of blood by her landlady and young son, the victim received permanent physical damage and psychological harm and defendant’s criminal record consisted of six felony convictions, including sexual assault, breaking and entering and larceny, and 21 misdemeanors. State v. Burns, 121 Idaho 788, 828 P.2d 351 (Ct. App. 1992).

A sentence of 15 years’ imprisonment for aggravated battery of another inmate, to be served consecutively to the 75-year sentence defendant was already serving, was affirmed, where the judge noted that the victim had been stabbed multiple times with a sharpened metal object and that defendant’s record showed extremely violent past criminal behavior which created the potential for extraordinarily violent harm to other people. State v. Martinez, 122 Idaho 629, 836 P.2d 1090 (Ct. App. 1992).

Based upon the facts and circumstances of the offenses and defendant’s character, the district court did not clearly abuse its discretion in sentencing defendant or in denying his Idaho R. Crim. P. 35 motion where defendant was convicted of first degree burglary, first degree kidnapping, and aggravated battery against his ex-wife. State v. Dowalo, 122 Idaho 761, 838 P.2d 890 (Ct. App. 1992).

A unified sentence of seven years with one year required as the minimum period of confinement for aggravated battery was reasonable where defendant assaulted victim over a traffic dispute, where the victim and defendant were not acquainted with each other prior to this incident and where the victim’s medical expenses for his injuries, hospitalization and reconstructive surgery approximated $20,000. State v. Davis, 123 Idaho 970, 855 P.2d 55 (Ct. App. 1993).

Sentence of twelve years, with four years fixed, for aggravated battery was reasonable, and refusal to further reduce the sentence was not an abuse of discretion where defendant had entered victim’s apartment and attacked victim who was asleep in her bed, fracturing her nose, breaking her jaw, and causing severe swelling to one side of her face. State v. Del Rio, 124 Idaho 52, 855 P.2d 889 (Ct. App. 1993).

Supreme Court in review of denial of Idaho R. Crim. P. 35 motion did not abuse its discretion in not reducing sentence of fifteen years for aggravated battery plus a consecutive enhancement of twelve years, where the sentence imposed was within the statutory maximums, where the crime committed involved an act of domestic violence which caused life-threatening harm to defendant’s former wife and was committed in the presence of their 14-year-old son, where although alcohol was a factor it could not be used as defense to excuse the actions, where there was no provocation for the attack which was a result of an ongoing cycle of domestic violence that escalated over the years, where the victim impact statement disclosed a long history of abuse and terror directed at former wife by defendant, where protection of victim and son were viewed as a paramount concern, and where defendant presented no evidence of any serious rehabilitation effort on his part. State v. Wickel, 126 Idaho 578, 887 P.2d 1085 (Ct. App. 1994).

Since a sentencing court may, with due caution, consider the existence of a defendant’s alleged criminal activity for which no charges have been filed or where charges have been dismissed, there was no error in sentencing court’s determination of the significance to be placed on victim’s account of defendant’s prior, uncharged criminal acts against her. State v. Wickel, 126 Idaho 578, 887 P.2d 1085 (Ct. App. 1994). There was error in imposing sentence enhancements for use of a deadly weapon in defendant’s convictions for involuntary manslaughter and aggravated battery because three of defendant’s crimes arose out of the same indivisible course of conduct, and, therefore, he was only subject to one enhanced penalty. State v. Custodio, 136 Idaho 197, 30 P.3d 975 (Ct. App. 2001).

Prosecutor violated a plea agreement in defendant’s aggravated battery case where her comments at the sentencing hearing were “fundamentally at odds” with the state’s promised sentencing recommendation, which called for leniency pursuant to§ 19-2601(4), and defendant’s sentence was vacated and he was to be resentenced by different judge. State v. Jones, 139 Idaho 299, 77 P.3d 988 (Ct. App. 2003).

In prosecution for aggravated battery for shooting and severely injuring a state trooper during a traffic stop, it was not error for trial court to enhance defendant’s sentence under both§§ 18-915 and 19-2520. State v. Kerrigan, 143 Idaho 185, 141 P.3d 1054 (2006).

Decisions Under Prior Law

Included Offense.

Where the information charged an aggravated battery, committed by defendant with premeditated design and by means calculated and likely to inflict great bodily injury, the information was sufficient to charge an aggravated assault as well as aggravated battery; the assault having been alleged as the manner and means of the commission of the aggravated battery, it was an included offense and the information, therefore, was not duplicitous. State v. Blacksten, 86 Idaho 401, 387 P.2d 467 (1963).

Information.

An information which charged that the defendant assaulted the prosecuting witness “with the premeditated design then and there had, by a use and means calculated to inflict great bodily injury . . . by striking and beating him with his hands and fists and by kicking” him was sufficient as against demurrer. State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967).

Instructions.

Failure of court to give instruction as to disparity of age and physical condition of the parties to an affray, justifying the weaker and older party in using a weapon to defend himself, was not reversible error, where the jurors had both parties before them and were qualified to determine whether the defendant, being the older was the weaker of the two and was justified in using the force and means used. State v. Blacksten, 86 Idaho 401, 387 P.2d 467 (1963).

Where a considerable disparity is revealed by the evidence or the appearance of the parties, the court may, in its discretion, instruct on the disparity in the ages and physical conditions of the parties to the affray and that such disparity might justify the weaker in using a weapon to defend himself though the other party be unarmed. State v. Blacksten, 86 Idaho 401, 387 P.2d 467 (1963).

Intent.

The tenant was entitled to be upon the premises of the farm for all purposes properly connected with his farming operations, and the fact that defendant owner claimed and tenant denied that the latter had abandoned his lease would not affect the issue in an aggravated battery case, particularly in view of the law that abandonment is a question of intent. State v. Blacksten, 86 Idaho 401, 387 P.2d 467 (1963).

Am. Jur. 2d.

C.J.S.

ALR.

Cigarette lighter as deadly or dangerous weapon. 22 A.L.R.6th 533.

Parts of human body, other than feet, as deadly or dangerous weapons or instrumentalities for purposes of statutes aggravating offenses such as assault and robbery. 67 A.L.R.6th 103.

Prior Laws.

Former§ 18-908 was repealed. See Prior Laws,§ 18-901.

Discretion of Court.

A unified sentence of 15 years with a minimum period of confinement of ten years for conviction of aggravated battery was not an abuse of discretion where defendant inflicted numerous serious injuries upon the victim, who was his girlfriend, by beating her severely, defendant kicked or stomped on her with his feet, a glass dining room table was smashed over her body and chairs were piled on top of that; the victim received permanent physical damage and psychological harm and defendant’s criminal record consisted of six felony convictions, including sexual assault, breaking and entering and larceny, and 21 misdemeanors. State v. Burns, 121 Idaho 788, 828 P.2d 351 (Ct. App. 1992).

Sentence.

Fifteen-year concurrent indeterminate sentences with a five-year indeterminate enhancement for use of a deadly weapon were not excessive when imposed on a defendant who pled guilty to second-degree kidnapping and aggravated battery even though the defendant had no prior record, when considering the brutal nature of the crimes. State v. Fink, 107 Idaho 1031, 695 P.2d 416 (Ct. App. 1985).

Where the crime committed by defendant was the most serious one imaginable for an aggravated battery and there was an abnormally high likelihood of repetitive conduct, given defendant’s background and prior criminal record, the district court did not abuse its discretion in ordering a determinate sentence of 15 years. State v. Thiemann, 109 Idaho 535, 708 P.2d 940 (Ct. App. 1985).

Where the defendants raped and sodomized a 12-year-old girl, the fixed 30-year sentence for rape, fixed 30-year sentence for lewd conduct with a minor, fixed 15-year sentence for aggravated battery, and the indeterminate 25-year sentence for second degree kidnapping were not an abuse of discretion. State v. Martinez, 111 Idaho 281, 723 P.2d 825 (1986). There was no abuse of discretion in sentencing the defendant to the maximum indeterminate sentences available for the crimes of second-degree kidnapping and aiding and abetting in the commission of aggravated battery, where the court considered the defendant’s active participation in the kidnap and murder of the victim, the need for appropriate retribution, and the mitigating factors, including the unusually large number of favorable character attestations on the defendant’s behalf. State v. Hemenway, 111 Idaho 839, 727 P.2d 1267 (Ct. App. 1986).

The district judge did not abuse his discretion in sentencing the defendant to a ten-year indeterminate sentence for one of the burglaries, a concurrent ten-year fixed sentence for the battery, and a ten-year indeterminate sentence for the other burglary, where the court considered the criteria of protection of society, deterrence of the defendant and of others, retribution, rehabilitation, the defendant’s background, and the nature of the crimes to which he had pled guilty. State v. Reinke, 111 Idaho 968, 729 P.2d 443 (Ct. App. 1986).

Although, in prosecution for aggravated assault and aggravated battery, it was the defendant’s first criminal conviction, it involved a particularly serious and violent series of offenses which resulted in probable permanent injury to one victim, and a diminished capacity to act rationally does not excuse the crime; therefore, the district court did not abuse its discretion in giving an indeterminate 15-year sentence for the battery and indeterminate five-year sentences for the assaults—all to run concurrently. State v. McDougall, 113 Idaho 900, 749 P.2d 1025 (Ct. App. 1988).

Defendant’s sentences for attempted robbery and aggravated battery were not excessive or represent an abuse of discretion where trial judge imposed maximum concurrent sentences, 15 years, for each crime and because defendant used a firearm in committing aggravated battery, the court extended the aggravated battery sentence for an additional 15 years, as permitted by§ 19-2520; for each crime the sentencing judge specified that the minimum term of confinement would be the entire length of the sentence and under these sentences defendant must spend 30 years in confinement without the possibility of parole. State v. Sanchez, 115 Idaho 394, 766 P.2d 1275 (Ct. App. 1988).

A judgment of conviction imposing a ten-year prison sentence with a five-year minimum confinement period for aggravated battery, and an order denying the defendant’s motion for reduction were affirmed where defendant had an extensive criminal history, he was on probation at the time of the offense, he had a substance abuse problem and he had threatened the life of two teenagers with a knife without provocation. State v. Maxfield, 115 Idaho 910, 771 P.2d 928 (Ct. App. 1989).

A district judge did not abuse his discretion in sentencing aggravated battery defendant to six years with a four-year minimum period of confinement despite defendant’s physical ailments where defendant had a long-standing problem of alcohol and substance abuse, had a prior criminal record, and was on parole from another state at the time of his conviction. State v. Rankin, 115 Idaho 728, 769 P.2d 605 (Ct. App. 1989).

Where defendant was convicted of aggravated battery, the three-year minimum period of confinement provided for in defendant’s minimum sentence was deemed to give defendant the opportunity to prove his rehabilitation potential to corrections officials, and the judge did not abuse his discretion by imposing a five-year sentence with a minimum period of confinement of three years. State v. Luna, 118 Idaho 124, 795 P.2d 18 (Ct. App. 1990).

A 15-year sentence with a ten-year minimum period of confinement for aggravated battery upon a correctional officer, to run consecutively to the indeterminate life sentence already being served by inmate, was not excessive in light of inmate’s lengthy disciplinary record while in prison and in light of the fact that inmate acted deliberately without the slightest provocation. State v. Matthews, 118 Idaho 659, 798 P.2d 941 (Ct. App. 1990). Defendant’s five-year sentence was well within the maximum punishment of 15 years which could have been imposed for aggravated battery and in the absence of any factual information to support defendant’s Idaho R. Crim. P. 35 motion, beyond the record existing when he was initially sentenced, the court of appeals found that the district court had not abused its discretion by denying the Rule 35 motion. State v. Prieto, 120 Idaho 884, 820 P.2d 1241 (Ct. App. 1991).

Where defendant admitted to forcing a girl’s car off the road, threatening her and stabbing her several times in the back before she freed herself from him, pursuant to an amended information charging him with aggravated battery with an enhancement for the use of a weapon, a sentence of 30 years, with ten years fixed was not an abuse of discretion. State v. King, 120 Idaho 955, 821 P.2d 1010 (Ct. App. 1991).

A 15-year unified sentence, with a minimum period of confinement of ten years was reasonable for aggravated battery, where the amended charge of aggravated battery was predicated upon an initial allegation of attempted rape, and defendant was previously charged with aggravated battery against his ex-wife and sexual abuse of his step-daughter. State v. Barnes, 121 Idaho 409, 825 P.2d 506 (Ct. App. 1992).

In light of the fact that alcohol treatment had, thus far, been unavailing and that defendant’s criminal behavior existed prior to his indulgence in alcohol, the minimum period of confinement imposed by the defendant’s sentences was not improper and did not constitute an abuse of discretion. State v. Cagle, 126 Idaho 794, 891 P.2d 1054 (Ct. App. 1995).

The maximum sentence for the crime to which defendant was found guilty, including the enhancement for using a firearm, was thirty years; therefore, defendant had the burden of showing a clear abuse of discretion by the trial court in sentencing him. State v. Morrison, 130 Idaho 85, 936 P.2d 1327 (1997).

Prior Laws.

Former§ 18-909 was repealed. See Prior Laws,§ 18-901.

Evidence.

While the state has a duty to use earnest effort to preserve evidence for possible use by a defendant, the state does not have a general duty to gather evidence for the accused. State v. Ames, 109 Idaho 373, 707 P.2d 484 (Ct. App. 1985), overruled on other grounds, State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010).

Sentence.

A 15-year fixed term for attempted second degree murder and a consecutive indeterminate ten-year term for assault with intent to commit rape was reasonable where psychologist concluded that defendant was not a good candidate for verbal psychotherapy and, even though defendant did not have a long prior record, the record he had was quite serious. State v. Fenstermaker, 122 Idaho 926, 841 P.2d 456 (Ct. App. 1992).

Decisions Under Prior Law

Assault with Intent to Rape.

In a prosecution for assault with intent to commit rape on a girl 14 years of age, it was not required to allege nor was it required to prove an assault calculated to overcome the resistance of prosecutrix by force or fear. State v. Gailey, 69 Idaho 146, 204 P.2d 254 (1949).

Charge of lewd and lascivious conduct on body of female child under age of 16 does not necessarily include assault with intent to rape, but charge of assault with intent to rape minor child does include charge of lewd and lascivious conduct. State v. Petty, 73 Idaho 136, 248 P.2d 218 (1952), appeal dismissed, 345 U.S. 834, 73 S. Ct. 834, 97 L. Ed. 2d 1364 (1953).

The offense of “attempt to commit rape” can be included in the charge of “assault with intent to commit rape.” State v. Hall, 88 Idaho 117, 397 P.2d 261 (1964).

Where the defendant restrained the 11-year-old girl by force, and touched her on the thigh with his penis before she escaped, the jury did not unjustifiably infer an intent to have sexual intercourse with the girl. State v. Greensweig, 103 Idaho 50, 644 P.2d 372 (Ct. App. 1982).

The crime of assault with intent to commit rape is a lesser included offense of rape and, in prosecuting such an assault, the state must prove all elements of rape except penetration. State v. Huggins, 103 Idaho 422, 648 P.2d 1135 (Ct. App. 1982), aff’d in part, 105 Idaho 43, 665 P.2d 1053 (1983).

Included Offense.

Where amended information charged “assault with intent to commit rape,” although the attempt was not by means of threat or violence, the means by which the alleged offense was committed also constituted an offense and was sufficiently set forth in the information as an included offense. State v. Hall, 88 Idaho 117, 397 P.2d 261 (1964).

Sentence.

Where defendant abducted the victim at gunpoint from her car, struck her on the head when she refused to disrobe, and shot her twice when she attempted to escape, consecutive sentences for the maximum term of confinement on respective counts of second degree kidnapping, assault with intent to commit infamous crime against nature, and assault with intent to commit murder were not excessive. State v. Drapeau, 97 Idaho 685, 551 P.2d 972 (1976).

Where defendant’s convictions for assault with intent to commit infamous crime against nature and attempt to commit infamous crime against nature arose out of the same act, the sentences imposed would be served concurrently. State v. Drapeau, 97 Idaho 685, 551 P.2d 972 (1976).

ALR.

Robbery, attempted robbery, or assault to commit robbery, as affected by intent to collect or secure debt or claim. 88 A.L.R.3d 1309.

Prior Laws.

Former§ 18-910 was repealed. See Prior Laws,§ 18-901.

Amendments.

The 2006 amendment, by ch. 178, substituted “fifteen (15) years” for “ten (10) years.”

Effective Dates.

Section 14 of S.L. 2006, ch. 178 declared an emergency. Approved March 24, 2006.

Sentence Upheld.

Where defendant was charged with kidnapping and assaulting a nine-year-old girl, with the intent of committing a lewd and lascivious act, although defendant did not have a criminal record and had a fairly stable family and work history, a sentence of seven years fixed, followed by an indeterminate period of confinement of 13 years on the kidnapping charge, and a term of five years fixed, to be followed by an indeterminate period of five years on the assault charge was not an abuse of discretion. State v. Soto, 121 Idaho 53, 822 P.2d 572 (Ct. App. 1991).

Trial court did not abuse its discretion by sentencing defendant to a unified term of 20 years for battery with intent to commit rape and a consecutive indeterminate term of 15 years for assault with intent to commit rape, because the sentences were within the statutory limits and were based on the defendant’s criminal record. State v. Diaz, 158 Idaho 629, 349 P.3d 1220 (Ct. App. 2015).

Prior Laws.

Former§ 18-911 was repealed. See Prior Laws,§ 18-901.

Evidence Sufficient.

Where defendant insisted 13-year-old girl go upstairs and show him where some towels were, followed her, blocked the hall, pushed her into the bedroom and, pointing to the bed, stated “Right here should be fine,” the jury could have reasonably concluded that, by successfully getting away, the girl had escaped being a victim of rape or lewd conduct; thus, defendant was unable to demonstrate on appeal that there was insufficient evidence to support the jury’s conviction for battery with the intent to commit a serious felony. State v. Monroe, 128 Idaho 676, 917 P.2d 1316 (Ct. App. 1996).

Rape.

Battery with intent to commit rape is a lesser included offense of forcible rape. State v. Bolton, 119 Idaho 846, 810 P.2d 1132 (Ct. App. 1991).

Sentence.

A unified sentence of 15 years, with a 12-year minimum period of confinement for conviction of battery with the intent to commit a serious felony, namely rape, was not excessive where defendant had an extensive criminal record for sex-related offenses and a psychologist’s diagnosis, attached to the presentence report, indicated that the defendant’s psychotic disorders of schizophrenia and “hyper-sexuality” required long-term inpatient rehabilitation and treatment in order to prevent further sexual misconduct. The sentencing court noted that its primary concern was for the protection of society and noted that proper medical treatment would be available during incarceration. State v. Tillman, 118 Idaho 617, 798 P.2d 462 (Ct. App. 1990). Sentencing judge did not abuse his discretion where he sentenced a defendant, convicted of two counts of first degree burglary and battery with intent to commit rape, to 25 years, with ten years indeterminate following a minimum period of confinement of 15 years on each of the three felony counts; ordinarily, each felony would carry a maximum penalty of not more than 15 years; however, because the jury found that the defendant was a persistent violator, the maximum permissible sentence for each of the felonies was extended to imprisonment for life. State v. Haggard, 119 Idaho 664, 809 P.2d 525 (Ct. App. 1991).

The court did not abuse its discretion in imposing a minimum of seven years with a unified sentence of fifteen years for first degree burglary, which was enhanced for the use of a deadly weapon to a fixed twelve-year sentence and an indeterminate sentence of twenty-five years and the same sentence for battery with intent to commit a serious felony, with the same enhancement, on a burglary charge where the presentence investigation report revealed felony convictions for two previous robberies and one battery on a peace officer along with a number of felony burglary and robbery charges that were reduced or the disposition was unknown. State v. Boman, 123 Idaho 947, 854 P.2d 290 (Ct. App. 1993).

Where district court found that defendant was a multiple offender with prior convictions of voluntary manslaughter and malicious wounding, that he lied in writing to the court regarding his prior offenses, and that he had the potential to inflict serious harm, defendant was unable to show on appeal that his sentence to a fixed term of 15 years for conviction for battery with intent to commit a serious felony was excessive under the facts. State v. Monroe, 128 Idaho 676, 917 P.2d 1316 (Ct. App. 1996).

Sufficient Information.

Information alleged facts sufficient to state an offense and, therefore, was sufficient to confer jurisdiction; the term “rape,” even as used in the everyday language of non-lawyers, referred to sexual penetration, and defendant could not argue that the words “with the intent to commit the crime of rape” were insufficient to allege the specific element of battery with intent to commit rape. State v. Mayer, 139 Idaho 643, 84 P.3d 579 (Ct. App. 2004).

Prior Laws.

Former§ 18-912 was repealed. See Prior Laws,§ 18-901.

Amendments.

The 2006 amendment, by ch. 178, substituted “twenty (20) years” for “fifteen (15) years.”

Effective Dates.

Section 14 of S.L. 2006, ch. 178 declared an emergency. Approved March 24, 2006.

Sentence Upheld.

Where the defendant’s attack upon victim was an unprovoked, execution-style attempt to take a human life that only fortuitously was unsuccessful, and defendant denied that he had any mental disease or needed treatment, fixed life sentence for robbery and fixed 15-year sentence for battery, enhanced by an additional 15 years for use of a firearm, was justified to protect society. State v. Storey, 109 Idaho 993, 712 P.2d 694 (Ct. App. 1985).

Where the defendant, who had been released on parole only five months previously, stabbed two store clerks who followed his wife from a store in an attempt to detain her for shoplifting, and the presentence report indicated that the defendant had a history of assaultive behavior, an indeterminate sentence not to exceed 15 years was not excessive. State v. Pardo, 109 Idaho 1036, 712 P.2d 737 (Ct. App. 1985).

Where defendant’s criminal record spanned ten years, including his juvenile record, a sentence of five years with two years fixed for first degree burglary, to be served concurrently with an identical sentence previously imposed in a separate case, and a sentence of ten years with three years fixed for battery with the intent to commit rape, to be served consecutively to the sentence on the first degree burglary conviction were reasonable sentences under the circumstances. State v. Acha, 122 Idaho 744, 838 P.2d 873 (Ct. App. 1992).

Cited

Trial court did not abuse its discretion by sentencing defendant to a unified term of 20 years for battery with intent to commit rape and a consecutive indeterminate term of 15 years for assault with intent to commit rape, because the sentences were within the statutory limits and were based on the defendant’s criminal record. State v. Diaz, 158 Idaho 629, 349 P.3d 1220 (Ct. App. 2015). Cited Volker v. State, 107 Idaho 1059, 695 P.2d 809 (Ct. App. 1985); State v. Araiza, 109 Idaho 188, 706 P.2d 77 (Ct. App. 1985); State v. Bolton, 119 Idaho 846, 810 P.2d 1132 (Ct. App. 1991).

Prior Laws.

Former§ 18-913 was repealed. See Prior Laws,§ 18-901.

C.J.S.

§ 18-914. Felonious administering of drugs — Punishment.

A felonious administering of drugs is punishable by imprisonment in the state prison not to exceed five (5) years or five thousand ($5,000) dollars, or both.

History.

I.C.,§ 18-914, as added by 1979, ch. 227, § 2, p. 624.

Cross References.

Department of correction,§ 20-201 et seq.

Department of health and welfare,§ 56-1001 et seq.

Department of water resources,§ 42-1701 et seq.

Idaho state police,§ 67-2901 et seq.

Peace officer standards and training council,§ 19-5101 et seq.

State tax commission,§ 63-101.

Commission of pardons and parole,§ 20-210.

Amendments.

This section was amended by three 2000 acts which appear to be compatible and have been compiled together.

The 2000 amendment, by ch. 272, § 3, near the middle of the introductory language, inserted “employee of a private prison contractor while employed at a private correctional facility in the state of Idaho” following “department of correction”; in subdivision (c), inserted “or of a private correctional facility” following “department of correction”, inserted “or other staff of the department of correction, or of a private correctional facility” following “correctional officer”, and substituted “a correctional facility” for “the state prison”.

The 2000 amendment, by ch. 297, § 3, near the end of the introductory language, inserted “a member, employee or agent of the state tax commission,” following “state board of medicine”. The 2000 amendment, by ch. 469, § 21, near the middle of the introductory language, substituted “the Idaho state police” for “the state department of law enforcement”.

This section was amended by two 2008 acts which appear to be compatible and have been compiled together.

The 2008 amendment, by ch. 88, near the middle of the introductory paragraph [now subsection (1)] and twice in subsection (c) [now the introductory paragraph in subsection (2)], inserted “misdemeanor probation officer.”

The 2008 amendment, by ch. 151, rewrote the section to the extent that a detailed comparison is impracticable.

The 2009 amendment, by ch. 11, inserted “misdemeanor probation officer” near the end of subsection (2)(b).

The 2011 amendment, by ch. 9, in the introductory paragraph of subsection (1), inserted “peace officer standards and training employee involved in peace officer decertification activities, emergency services dispatcher” near the beginning and substituted “emergency medical services personnel licensed under the provisions of chapter 10, title 56, Idaho Code” for “emergency medical technician certified by the department of health and welfare, emergency medical technician-ambulance certified by the department of health and welfare, advanced emergency medical technician and EMT-paramedic certified by the state board of medicine” near the end.

The 2019 amendment, by ch. 235, inserted “employees of the department of parks and recreation authorized to enforce the provisions of chapter 42, title 67, Idaho Code” near the middle of the introductory paragraph in subsection (1).

The 2020 amendment, by ch. 276, inserted “members or employees of the commission of pardons and parole” near the middle of the introductory paragraph in subsection (1); and substituted “misdemeanor officer, a juvenile probation officer, or member or employee of the commission of pardons and parole” for “misdemeanor probation officer or a juvenile probation officer” at the end of the introductory paragraph in subsection (2).

Effective Dates.

Section 14 of S.L. 2000, ch. 272 declared an emergency. Approved April 12, 2000.

Evidence.

In prosecution for assault with intent to commit a serious felony upon a law enforcement officer, testimony of the witness that the police radio dispatcher stated that the defendant had said he “wanted to kill a cop” was inadmissible because it was relevant only for the impermissible hearsay purpose of showing that the defendant actually had expressed a desire to “kill a cop” and it was irrelevant if offered for the nonhearsay purpose of showing what information the officers possessed and how this information affected the subsequent actions of the officers, because evidence of the officers’ motives did not prove any element of the offense charged. State v. Boehner, 114 Idaho 311, 756 P.2d 1075 (Ct. App. 1988).

In prosecution for aggravated assault on a law enforcement officer, the admission of the defendant’s blood alcohol test result, even if error, was harmless, where testimony was adduced, without objection, that the defendant had been consuming alcoholic beverages and the test result simply confirmed that undisputed fact, and the evidence of intoxication actually could have been exculpatory under the instructions the trial court gave the jury on intent. State v. Missamore, 114 Idaho 879, 761 P.2d 1231 (Ct. App. 1988).

Evidence was sufficient to support defendant’s conviction of aggravated battery and assault on a law officer in violation of§§ 18-901(b), 18-903, 18-905(a), 18-907, and this section, and there was no abuse of discretion in sentencing given defendant’s criminal history; a jury could have reasonably concluded from the evidence that defendant intended to shoot the officers involved in the altercation, instead of attempting suicide as defendant contended, given the fact that defendant pointed the gun at them when he gained control over it. State v. Hoffman, 137 Idaho 897, 55 P.3d 890 (Ct. App. 2002).

State presented substantial evidence upon which a rational trier of fact could conclude it proved the elements of battery on a correctional officer beyond a reasonable doubt, where the victim testified that defendant kicked him in the shoulder, and there was corroborating testimony and photographic and video evidence; State v. Kralovec, 161 Idaho 569, 388 P.3d 583 (2017).

— Officer’s Testimony.

The court did not err in its consideration of the testimony given by officers that the shooting of a fellow officer had a significant impact on the relatively close-knit community of the district’s state police force. State v. Kerrigan, 123 Idaho 508, 849 P.2d 969 (Ct. App. 1993).

— Witness Testimony.

In prosecution for assault with intent to commit a serious felony upon a law enforcement officer, the testimony of the preliminary hearing witness regarding the defendant’s alleged statement in her presence was not hearsay but a party’s statement under Idaho Evid. R. 801(d)(2); however, on remand the trial court should make a ruling on the application of Idaho Evid. R. 403 to this testimony. State v. Boehner, 114 Idaho 311, 756 P.2d 1075 (Ct. App. 1988).

Felony Test.

Under paragraph (2)(a), the state must show a causal connection between the battery and the officer’s official duty or status. Accordingly, a person can be guilty of battery upon an officer if the person batters a current or former officer because of the performance of his or her official duty or if the person batters a current or former officer because of his or her official status. On the other hand, under paragraph (2)(b), the state is not required to show a causal connection, but must show that the officer was performing his or her duty and that the individual who committed the battery knew or should have known that the person was an officer. The statute does not require that the officer be engaged in any specific duty—only that he be engaged in the performance of his duties. State v. Kelly, 158 Idaho 862, 353 P.3d 1096 (Ct. App. 2015). There are five actions that can constitute a battery under§ 18-915: using force, using violence, touching, striking, or causing bodily harm. The plain language of subsection (3) of this section excepts only unlawful “touching” from those acts that constitute felony battery under this section. Therefore striking an officer is a felony. State v. Castrejon, 163 Idaho 19, 407 P.3d 606 (Ct. App. 2017).

Instructions.

Where, in a prosecution for obstructing a police officer and committing a battery upon a police officer, there was a question of fact whether the defendant had made a lunge at one officer, justifying the other in grabbing the defendant from behind, and there also was a related question whether the officers at any time used force to an excessive degree: the magistrate’s refusal to instruct the jury on the right of a citizen to resist excessive force by police constituted reversible error entitling the defendant to a new trial. State v. Spurr, 114 Idaho 277, 755 P.2d 1315 (Ct. App. 1988).

Information and Indictment.

Although the information did not set forth the official or customary citation of the statute related to the penalties for aggravated assault upon a police officer, it did set forth the facts necessary to advise defendant that he was charged with aggravated assault and that the alleged victim was a police officer; therefore, all the factual elements for a charge punishable under this section were set forth, and defendant did not show prejudice from the lack of the citation. State v. Page, 135 Idaho 214, 16 P.3d 890 (2000).

Where, in a prosecution for obstructing a police officer and battery upon a police officer, the alleged act of battery — the kick making contact with an officer — could be viewed either as a fortuitous event subsumed by the general struggle or as an event separated in time and place from the rest of the altercation, the magistrate was directed on remand to instruct the jury that they could not convict of both offenses unless they were convinced beyond a reasonable doubt that both alleged crimes arose out of separate and distinct acts, each accompanied by criminal intent. State v. Spurr, 114 Idaho 277, 755 P.2d 1315 (Ct. App. 1988).

Peace Officer.

Defendant’s conviction and sentence, pursuant to this section, for battery on a peace officer were proper because the evidence was sufficient to show that the victim, who was an inmate with defendant, was a former bailiff and peace officer as defined by§§ 19-5101 and 19-5109. State v. Herrera, 152 Idaho 24, 266 P.3d 499 (Ct. App. 2011).

Prosecutorial Misconduct.

Self-defense.

In prosecution for aggravated assault on a law enforcement officer, the prosecutor’s remark improperly predicting future confrontations between the defendant and the police was not fundamental error, requiring reversal of the judgment of conviction, where the defendant made no objection to the argument nor did he move for a mistrial or otherwise challenge the comment before the case was submitted to the jury, and the remark was not so egregious or inflammatory that any prejudice arising therefrom could not have been remedied by a ruling from the trial court. State v. Missamore, 114 Idaho 879, 761 P.2d 1231 (Ct. App. 1988). Self-defense.

In a case where defendant was convicted of battery on a jailer/correctional or detention officer, the district court erred in ruling that defendant was not entitled to a self-defense jury instruction, because the evidence was undisputed that force was used on defendant and there was a question of fact whether that force was excessive, as an officer heard defendant make guttural-type noises and state that he could not breathe while being held on the ground by other officers. Defendant had a right to reasonably defend himself, and there was a question of fact about whether defendant’s responding use of force of kicking one of the officers was reasonable. State v. Garner, 159 Idaho 896, 367 P.3d 720 (Ct. App. 2016).

Sentence.

A 15-year sentence with a ten-year minimum period of confinement for aggravated battery upon a correctional officer, to run consecutively to the indeterminate life sentence already being served by inmate, was not excessive in light of inmate’s lengthy disciplinary record while in prison and in light of the fact that inmate acted deliberately without the slightest provocation. State v. Matthews, 118 Idaho 659, 798 P.2d 941 (Ct. App. 1990).

The district court sentence of a five-year term with two years fixed was not an abuse of discretion where the maximum sentence could have been 10 years, and the court found that the goal of rehabilitation was secondary to that of deterrence, and a person who would draw a weapon on a law enforcement officer under these circumstances should be considered a danger to the community. State v. Daniels, 134 Idaho 896, 11 P.3d 1114 (2000).

In prosecution for aggravated battery for shooting and severely injuring a state trooper during a traffic stop, it was not error for trial court to enhance defendant’s sentence under both§ 19-2520 and this section. State v. Kerrigan, 143 Idaho 185, 141 P.3d 1054 (2006).

Decisions Under Prior Law

Voluntariness of Guilty Plea.

Where a man, 64, was in prison on a seven-year sentence for armed robbery, and hit a guard with a metal bottle during an escape, and was charged with violations of both former law providing punishment for assault committed on a correctional officer and§ 18-2505, and plead guilty to a violation of the former law, and was present with his attorney prior to actual imposition of sentence, at which time his attorney asked that defendant’s sentence not be made consecutive due to his advanced age and ill health, and the prosecutor said he was not requesting a consecutive sentence, the defendant would not be heard to assert that his guilty plea was involuntary because he was unaware of the possibility of a consecutive sentence. State v. Flummer, 99 Idaho 567, 585 P.2d 1278 (1978).

A.L.R.

§ 18-915A. Removing a firearm from a law enforcement officer.

1. A person may not knowingly remove or attempt to remove a firearm from the possession of another person if:
   1. The other person is lawfully acting within the course and scope of employment; and
   2. The person knows or has reason to know that the other person is employed as any of the following:
      1. A law enforcement officer who, in an official capacity, is authorized to make arrests; or
      2. An employee of the Idaho board of correction, the Idaho department of juvenile corrections, any prison, jail, detention or booking facility or private correctional facility within the state, or the commission of pardons and parole.
2. A person who violates this section is guilty of a felony.
3. A sentence imposed for a violation of this section may be imposed separate from and consecutive to or concurrent with a sentence for any offense based on the act or acts establishing the offense under this section.

History.

I.C.,§ 18-915A, as added by 1998, ch. 395, § 1, p. 1239; am. 2000, ch. 272, § 4, p. 786.

Cross References.

Board of correction,§ 20-201A.

Commission of pardons and parole,§ 20-210 et seq.

Effective Dates.

Section 14 of S.L. 2000, ch. 272 declared an emergency. Approved April 12, 2000.

IV Fluids.

Defendant properly found guilty of battery against a doctor. Although defendant did not physically touch the doctor, her act of ripping out her intravenous (IV) drip and flinging it, which ejected fluid and blood that hit the doctor in the face, was an act that a reasonable jury could have found to establish, beyond a reasonable doubt, that defendant struck the doctor. State v. Nuse, 163 Idaho 262, 409 P.3d 842 (Ct. App. 2017).

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Am. Jur. 2d.

§ 18-917. Hazing.

1. No student or member of a fraternity, sorority or other living or social student group or organization organized or operating on or near a school or college or university campus, shall intentionally haze or conspire to haze any member, potential member or person pledged to be a member of the group or organization, as a condition or precondition of attaining membership in the group or organization or of attaining any office or status therein.
2. As used in this section, “haze” means to subject a person to bodily danger or physical harm or a likelihood of bodily danger or physical harm, or to require, encourage, authorize or permit that the person be subjected to any of the following:
   1. Total or substantial nudity on the part of the person;
   2. Compelled ingestion of any substance by the person;
   3. Wearing or carrying of any obscene or physically burdensome article by the person;
   4. Physical assaults upon or offensive physical contact with the person;
   5. Participation by the person in boxing matches, excessive number of calisthenics, or other physical contests;
   6. Transportation and abandonment of the person;
   7. Confinement of the person to unreasonably small, unventilated, unsanitary or unlighted areas;
   8. Sleep deprivation; or
   9. Assignment of pranks to be performed by the person.
3. The term “hazing,” as defined in this section, does not include customary athletic events or similar contests or competitions, and is limited to those actions taken and situations created in connection with initiation into or affiliation with any group or organization. The term “hazing” does not include corporal punishment administered by officials or employees of public schools when in accordance with policies adopted by local boards of education.
4. A student or member of a fraternity, sorority or other student organization, who personally violates any provision of this section shall be guilty of a misdemeanor.

History.

I.C.,§ 18-917, as added by 1991, ch. 338, § 1, p. 874; am. 2002, ch. 268, § 1, p. 798.

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

ALR.

§ 18-917A. Student harassment — Intimidation — Bullying.

1. No student or minor present on school property or at school activities shall intentionally commit, or conspire to commit, an act of harassment, intimidation or bullying against another student.
2. As used in this section, “harassment, intimidation or bullying” means any intentional gesture, or any intentional written, verbal or physical act or threat by a student that:
   1. A reasonable person under the circumstances should know will have the effect of:
      1. Harming a student; or
      2. Damaging a student’s property; or
      3. Placing a student in reasonable fear of harm to his or her person; or
      4. Placing a student in reasonable fear of damage to his or her property; or
      5. A first violation of section 23-949, Idaho Code; and
      6. A first violation of section 23-505(1) and (2), Idaho Code, when an individual is not in actual physical control of the vehicle.
   2. Is sufficiently severe, persistent or pervasive that it creates an intimidating, threatening or abusive educational environment for a student.
3. A student who personally violates any provision of this section may be guilty of an infraction.

An act of harassment, intimidation or bullying may also be committed through the use of a landline, car phone or wireless telephone or through the use of data or computer software that is accessed through a computer, computer system, or computer network.

History.

I.C.,§ 18-917A, as added by 2006, ch. 313, § 3, p. 969; am. 2015, ch. 289, § 1, p. 1161.

Cross References.

Penalty for infraction when not otherwise provided,§ 18-113A.

Amendments.

The 2015 amendment, by ch. 289, inserted “or minor present on school property or at school activities” in subsection (1).

ALR.

§ 18-918. Domestic violence.

1. For the purpose of this section:
   1. “Household member” means a person who is a spouse, former spouse, or a person who has a child in common regardless of whether they have been married or a person with whom a person is cohabiting, whether or not they have married or have held themselves out to be husband or wife.
   2. “Traumatic injury” means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by physical force.
2. 1. Any household member who in committing a battery, as defined in section 18-903, Idaho Code, inflicts a traumatic injury upon any other household member is guilty of a felony. (2)(a) Any household member who in committing a battery, as defined in section 18-903, Idaho Code, inflicts a traumatic injury upon any other household member is guilty of a felony.
   2. A conviction of felony domestic battery is punishable by imprisonment in the state prison for a term not to exceed ten (10) years or by a fine not to exceed ten thousand dollars ($10,000) or by both fine and imprisonment.
3. 1. A household member who commits an assault, as defined in section 18-901, Idaho Code, against another household member which does not result in traumatic injury is guilty of a misdemeanor domestic assault. (3)(a) A household member who commits an assault, as defined in section 18-901, Idaho Code, against another household member which does not result in traumatic injury is guilty of a misdemeanor domestic assault.
   2. A household member who commits a battery, as defined in section 18-903, Idaho Code, against another household member which does not result in traumatic injury is guilty of a misdemeanor domestic battery.
   3. A first conviction under this subsection is punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in a county jail not to exceed six (6) months, or both. Any person who pleads guilty to or is found guilty of a violation of this subsection who previously has pled guilty to or been found guilty of a violation of this subsection, or of any substantially conforming foreign criminal violation, notwithstanding the form of the judgment or withheld judgment, within ten (10) years of the first conviction, shall be guilty of a misdemeanor and shall be punished by imprisonment in the county jail for a term not to exceed one (1) year or by a fine not exceeding two thousand dollars ($2,000) or by both fine and imprisonment. Any person who pleads guilty to or is found guilty of a violation of this subsection who previously has pled guilty to or been found guilty of two (2) violations of this subsection, or of any substantially conforming foreign criminal violation or any combination thereof, notwithstanding the form of the judgment or withheld judgment, within fifteen (15) years of the first conviction, shall be guilty of a felony and shall be punished by imprisonment in the state prison for a term not to exceed five (5) years or by a fine not to exceed five thousand dollars ($5,000) or by both fine and imprisonment.
4. The maximum penalties provided in this section shall be doubled where the act of domestic assault or battery for which the person is convicted or pleads guilty took place in the presence of a child. For purposes of this section, “in the presence of a child” means in the physical presence of a child or knowing that a child is present and may see or hear an act of domestic assault or battery. For purposes of this section, “child” means a person under sixteen (16) years of age.
5. Notwithstanding any other provisions of this section, any person who previously has pled guilty to or been found guilty of a felony violation of the provisions of this section or of any substantially conforming foreign criminal felony violation, notwithstanding the form of the judgment or withheld judgment, and who, within fifteen (15) years, pleads guilty to or is found guilty of any further violation of this section shall be guilty of a felony and shall be punished by imprisonment in the state prison for a term not to exceed ten (10) years or by a fine not to exceed ten thousand dollars ($10,000), or by both such fine and imprisonment.
6. For the purposes of this section, a substantially conforming foreign criminal violation exists when a person has pled guilty to or been found guilty of a violation of any federal law or law of another state, or any valid county, city or town ordinance of another state, substantially conforming with the provisions of this section. The determination of whether a foreign criminal violation is substantially conforming is a question of law to be determined by the court.
7. 1. Any person who pleads guilty to or is found guilty of a violation of this section or section 18-923, Idaho Code, shall undergo, at the person’s own expense, an evaluation by a person, agency or organization approved by the court in accordance with paragraph (c) of this subsection to determine whether the defendant should be required to obtain counseling or other appropriate treatment. Such evaluation shall be completed prior to the sentencing date if the court’s list of approved evaluators, in accordance with paragraph (c) of this subsection, contains evaluators who are able to perform the evaluation prior to the sentencing dates. If the evaluation recommends counseling or other treatment, the evaluation shall recommend the type of counseling or treatment considered appropriate for the defendant, together with the estimated costs thereof, and shall recommend any other suitable alternative counseling or treatment programs, together with the estimated costs thereof. The defendant shall request that a copy of the completed evaluation be forwarded to the court. The court shall take the evaluation into consideration in determining an appropriate sentence. If a copy of the completed evaluation has not been provided to the court, the court may proceed to sentence the defendant; however, in such event, it shall be presumed that counseling is required unless the defendant makes a showing by a preponderance of evidence that counseling is not required. If the defendant has not made a good faith effort to provide the completed copy of the evaluation to the court, the court may consider the failure of the defendant to provide the report as an aggravating circumstance in determining an appropriate sentence. If counseling or other treatment is ordered, in no event shall the person, agency or organization doing the evaluation be the person, agency or organization that provides the counseling or other treatment unless this requirement is waived by the sentencing court, with the exception of federally recognized Indian tribes or federal military installations, where diagnosis and treatment are appropriate and available. Nothing herein contained shall preclude the use of funds authorized for court-ordered counseling or treatment pursuant to this section for indigent defendants as provided by law. In the event that funding is provided for or on behalf of the defendant by a governmental entity, the defendant shall be ordered to make restitution to such governmental entity in accordance with the restitution procedure for crime victims, as specified under chapter 53, title 19, Idaho Code. (7)(a) Any person who pleads guilty to or is found guilty of a violation of this section or section 18-923, Idaho Code, shall undergo, at the person’s own expense, an evaluation by a person, agency or organization approved by the court in accordance with paragraph (c) of this subsection to determine whether the defendant should be required to obtain counseling or other appropriate treatment. Such evaluation shall be completed prior to the sentencing date if the court’s list of approved evaluators, in accordance with paragraph (c) of this subsection, contains evaluators who are able to perform the evaluation prior to the sentencing dates. If the evaluation recommends counseling or other treatment, the evaluation shall recommend the type of counseling or treatment considered appropriate for the defendant, together with the estimated costs thereof, and shall recommend any other suitable alternative counseling or treatment programs, together with the estimated costs thereof. The defendant shall request that a copy of the completed evaluation be forwarded to the court. The court shall take the evaluation into consideration in determining an appropriate sentence. If a copy of the completed evaluation has not been provided to the court, the court may proceed to sentence the defendant; however, in such event, it shall be presumed that counseling is required unless the defendant makes a showing by a preponderance of evidence that counseling is not required. If the defendant has not made a good faith effort to provide the completed copy of the evaluation to the court, the court may consider the failure of the defendant to provide the report as an aggravating circumstance in determining an appropriate sentence. If counseling or other treatment is ordered, in no event shall the person, agency or organization doing the evaluation be the person, agency or organization that provides the counseling or other treatment unless this requirement is waived by the sentencing court, with the exception of federally recognized Indian tribes or federal military installations, where diagnosis and treatment are appropriate and available. Nothing herein contained shall preclude the use of funds authorized for court-ordered counseling or treatment pursuant to this section for indigent defendants as provided by law. In the event that funding is provided for or on behalf of the defendant by a governmental entity, the defendant shall be ordered to make restitution to such governmental entity in accordance with the restitution procedure for crime victims, as specified under chapter 53, title 19, Idaho Code.
   2. If the evaluation recommends counseling or other treatment, the court shall order the person to complete the counseling or other treatment in addition to any other sentence which may be imposed. If the court determines that counseling or treatment would be inappropriate or undesirable, the court shall enter findings articulating the reasons for such determination on the record. The court shall order the defendant to complete the preferred counseling or treatment program set forth in the evaluation, or a comparable alternative, unless it appears that the defendant cannot reasonably obtain adequate financial resources for such counseling or treatment. In that event, the court may order the defendant to complete a less costly alternative set forth in the evaluation or a comparable program. Nothing contained in this subsection shall be construed as requiring a court to order that counseling or treatment be provided at government expense unless otherwise required by law.
   3. The supreme court shall by rule establish a uniform system for the qualification and approval of persons, agencies or organizations to perform the evaluations required in this subsection. Only qualified evaluators approved by the court shall be authorized to perform such evaluations. Funds to establish a system for approval of evaluators shall be derived from moneys designated therefor and deposited in the district court fund as provided in section 31-3201A(16), Idaho Code.
   4. Counseling or treatment ordered pursuant to this section shall be conducted according to standards established or approved by the Idaho council on domestic violence and victim assistance.

History.

I.C.,§ 18-918, as added by 1993, ch. 344, § 1, p. 1283; am. 1995, ch. 223, § 1, p. 770; am. 1996, ch. 228, § 1, p. 742; am. 1998, ch. 309, § 1, p. 1026; am. 1998, ch. 420, § 1, p. 1323; am. 2000, ch. 358, § 1, p. 1193; am. 2003, ch. 237, § 1, p. 607; am. 2004, ch. 118, § 1, p. 392; am. 2005, ch. 158, § 1, p. 488; am. 2009, ch. 80, § 3, p. 221; am. 2018, ch. 123, § 1, p. 260.

Amendments.

This section was amended by two 1998 acts which appear to be compatible and have been compiled together.

The 1998 amendment, by ch. 309, § 1, inserted the (a) designation in subsection (7) and added subsection (7)(b).

The 1998 amendment, by ch. 420, § 1, substituted “violence” for “assault or battery” in the catchline of the section, substituted “a person with whom a person is cohabiting, whether or not they have married or have held themselves out to be husband or wife” for “have lived together at any time” at the end of subsection (1), added subsections (2) and (3), redesignated subsections (2) and (3) as subsections (4) and (5), inserted “which does not result in traumatic injury” and “a misdemeanor” in subsections (4) and (5), added subsection (6), redesignated subsection (4) as subsection (7), inserted “misdemeanor” near the beginning of subsection (7), redesignated subsection (5) as subsection (8), in the first sentence of subsection (8)(a) deleted “and prior to the sentencing date” following “own expense” and deleted “for anger control and prevention” following “other appropriate treatment”, and added the second sentence in subsection (8)(a).

The 2009 amendment, by ch. 80, updated the section reference in subsection (7)(c) to reflect the 2009 amendment of§ 31-3201A.

The 2018 amendment, by ch. 123, in the first sentence of paragraph (7)(a), inserted “or section 18-923, Idaho Code” near the beginning and deleted “aggression” preceding “counseling or other” near the end; substituted “The supreme court” for “Each judicial district” at the beginning of subsection (c); and added “and victim assistance” at the end of subsection (d).

Effective Dates.

Section 2 of S.L. 2000, ch. 358 declared an emergency. Approved April 14, 2000.

CASE NOTES

Constitutionality.

Failure of the legislature to characterize the conduct condemned by this section as “unlawful” does not render this section vague, because the terms of the statute clearly render a violator subject to penal liability through the imposition of a fine and imprisonment. State v. Larsen, 135 Idaho 754, 24 P.3d 702 (2001).

Defendant was not denied equal protection of the laws because the provisions of paragraphs (3) and (5) do not define identical conduct resulting in different penalties. Conduct causing a traumatic injury differentiates a felony domestic battery from a misdemeanor domestic battery. State v. Larsen, 135 Idaho 754, 24 P.3d 702 (2001).

This section is not unconstitutionally void for vagueness because the statute provides adequate notice of what behavior is prohibited and what the punishment for that behavior will be. State v. Hellickson, 135 Idaho 742, 24 P.3d 59 (2001); State v. Prather, 135 Idaho 770, 25 P.3d 83 (2001).

This section is not unconstitutionally overbroad because the statute provides adequate notice of what behavior is prohibited and what the punishment for that behavior will be. State v. Davis, 135 Idaho 747, 24 P.3d 64 (2001).

Defendant did not assert that the injuries he caused the victim were inflicted while engaged in a constitutionally protected activity, and when a statute can be applied to a person’s conduct without violating any constitutional provision, he will not be heard to assert that the statute might be unconstitutional if applied to other types of behavior. State v. Davis, 135 Idaho 747, 24 P.3d 64 (2001).

This section, as amended, clearly establishes the prosecutor’s burden of proving a “traumatic injury” for a felony conviction and does not violate due process by shifting the burden of proof to the defense. State v. Prather, 135 Idaho 770, 25 P.3d 83 (2001).

This section does not obviously and invidiously discriminate and is, therefore, subject to rational basis review under the equal protection clause of Idaho’s constitution. State v. Hart, 135 Idaho 827, 25 P.3d 850 (2001).

The definition of “traumatic injury” in this section is sufficiently defined and, thus, not unconstitutionally vague. State v. Keaveny, 136 Idaho 31, 28 P.3d 372 (2001).

Statute gave defendant fair warning that his conduct was prohibited; defendant’s contention that the statute was ambiguous as to whether it applied to persons who were cohabiting in other circumstances was unavailing, for he had no standing to challenge the vagueness of the statute as it might be hypothetically applied to the conduct of others. State v. Olson, 138 Idaho 438, 64 P.3d 967 (Ct. App. 2003).

Double Jeopardy.

Defendant’s double jeopardy rights were violated when he was tried and and convicted for attempted strangulation under§ 18-923 subsequent to entering a guilty plea to a misdemeanor domestic battery charge under this section, where both charges arose from a single criminal episode. The offense of misdemeanor domestic battery does not contain an element that the offense of attempted strangulation does not and attempting to separate defendant’s act of grabbing his girlfriend’s hair and throwing her to the floor from his grabbing her throat, in the same dispute, was not permissible. State v. Moffat, 154 Idaho 529, 300 P.3d 61 (Ct. App. 2013).

District court properly denied defendant’s motion to dismiss the charge of felony domestic battery, because§ 19-3506 does not bar that subsequent felony charge after the dismissal of the charge of misdemeanor domestic battery, State v. Colvin, 162 Idaho 577, 401 P.3d 577 (Ct. App. 2017).

Household Members.

Statute, as it existed at the time of defendant’s offense, included cohabitants who had never been married as a category of household members; defendant’s battery of his live-in girlfriend was thus enjoined by the statute. State v. Olson, 138 Idaho 438, 64 P.3d 967 (Ct. App. 2003).

Evidence was sufficient to prove that defendant and the victim were cohabiting at the time defendant battered the victim, such that the attack constituted domestic violence; although defendant was not paying household expenses, he was using the premises as his home and acknowledged to a police officer that he lived there. State v. Hansell, 141 Idaho 587, 114 P.3d 145 (Ct. App. 2005).

An information alleging violation of this section and charging defendant with felony domestic battery and attempted strangulation of his 15-year-old daughter was dismissed. The definition of “household member” in paragraph (1)(a) plainly limits its application to intimate partners and does not extend to a child living with her father. State v. Schulz, 151 Idaho 863, 264 P.3d 970 (2011).

Informing Defendant of Offense Charged.

Section 19-608 requires that the person be informed of the cause of the arrest and not the charge for which he might eventually be made to answer; thus, although defendant’s underlying arrest was validated under a different charge (aggravated battery) than that for which he was originally cited (misdemeanor domestic battery), defendant was informed of the cause of his arrest, the alleged battery committed on his wife, and such arrest was lawful. State v. Julian, 129 Idaho 133, 922 P.2d 1059 (1996).

Information alleging that defendant inflicted a traumatic injury upon another household member by striking her in the face and body resulting in traumatic injury was factually sufficient to charge defendant with the crime of domestic battery. State v. Sohm, 140 Idaho 458, 95 P.3d 76 (Ct. App. 2004).

Jury Instructions.

Defendant’s conviction for felony domestic violence was vacated where the court gave jury instructions that did not adequately state the applicable law and diminished the state’s burden of proof on the mental element of the offense. State v. Sohm, 140 Idaho 458, 95 P.3d 76 (Ct. App. 2004). District court erred in not instructing the jury that in order to find defendant guilty, they had to find that he willfully inflicted a traumatic injury upon the victim; however, the error was harmless because there was no evidence in the record that could rationally lead to a finding in favor of defendant with respect to the omitted element. State v. Hansell, 141 Idaho 587, 114 P.3d 145 (Ct. App. 2005).

In a prosecution for felony domestic battery, the court erred in refusing to give requested instructions on misdemeanor domestic battery and false imprisonment, because they were lesser included offenses. However, the error was harmless under the “acquittal first” rule, because the jury convicted the defendant of the greater offenses. State v. Joy, 155 Idaho 1, 304 P.3d 276 (2013).

Prosecutorial Misconduct.

Defendant’s conviction for felony domestic violence was appropriate because, while the prosecutor did commit misconduct by misstating the law in closing arguments, defendant failed to object and the misconduct on the part of the prosecutor did not rise to the level of fundamental error. State v. Coffin, 146 Idaho 166, 191 P.3d 244 (Ct. App. 2008).

“Traumatic Injury.”

By prefacing the list in paragraph (2) that defines a traumatic injury with the words “such as,” the legislature clearly meant the list to be non-exclusive; and, where the district judge treated the list as exclusive, he impermissibly narrowed the application of the statute. State v. Hart, 135 Idaho 827, 25 P.3d 850 (2001).

Subsection (3) [now (2)(a)] requires that the state show that the defendant willfully and unlawfully inflicted a traumatic injury, not that the defendant intended to inflict the particular injury the victim actually suffered. State v. Reyes, 139 Idaho 502, 80 P.3d 1103 (Ct. App. 2003).

Willfully.

It is apparent from the context of subsection (3) [now (2)(a)] that the§ 18-101(1) definition of “wilfully” does not apply. State v. Sohm, 140 Idaho 458, 95 P.3d 76 (Ct. App. 2004).

To establish a violation of subsection (3) [now (2)(a)], the state must prove that the defendant willfully inflicted injury, though it need not be shown that the defendant intended the precise injury that the victim sustained. State v. Sohm, 140 Idaho 458, 95 P.3d 76 (Ct. App. 2004).

Idaho Law Review.

Idaho Law Review. — The Efficacy of Idaho’s Domestic Violence Courts: An Opportunity for the Court System to Effect Social Change, Comment. 48 Idaho L. Rev. 587 (2012).

Cross References.

Commencement of prosecutions,§ 19-406.

Elements.

Patient.

A conviction under this section requires a showing of the following elements: (1) that defendant was licensed to practice medicine; (2) that defendant was acting or holding himself out as a physician or medical care provider; (3) that defendant engaged in sexual contact; (4) with a patient or client. Pines v. Idaho State Bd. of Med., 158 Idaho 745, 351 P.3d 1203 (2015). Patient.

Where defendant used his skills as a physician to examine one victim, and to make and rule out diagnoses in connection with that examination, and provided medication and massages to another victim with back and joint problems, it is clear that the board of medicine’s finding that the victims were patients of the defendant at the time of alleged sexual contact is supported by substantial evidence in the record. Pines v. Idaho State Bd. of Med., 158 Idaho 745, 351 P.3d 1203 (2015).

Amendments.

This section was amended by two 2000 acts which appear to be compatible and have been compiled together.

The 2000 amendment, by ch. 146, § 1, in subsection (1), inserted “18-909” preceding “18-911”.

The 2000 amendment, by ch. 239, § 1, in subsection (1), inserted “or convicted of” preceding “an offense under”; in subdivision (2)(a), inserted “or convicted” preceding “under any offense”, and in subdivision (2)(c), inserted “or convicted” preceding “has had contact”.

The 2008 amendment, by ch. 259, added the second sentence in subsection (3) and added subsection (5).

Effective Dates.

Section 2 of S.L. 2000, ch. 146 declared an emergency. Approved April 3, 2000.

Section 2 of S.L. 2000, ch. 239 declared an emergency. Approved April 12, 2000.

Contact.

By its plain language, subsection (2) of this section only criminalizes violations of a no contact order where the violation was contact in the form of physical touching and/or communicating: mere presence within a certain radius is not enough for conviction under this section. State v. Herren, 157 Idaho 722, 339 P.3d 1126 (2014).

Elements of Offense.

Although this section does not explicitly list prior notice of the no contact order as an element of the offense, such notice is an essential element of the crime, as stated in Idaho R. Crim. P. 46.2, which implements this section. State v. Hochrein, 154 Idaho 993, 303 P.3d 1249 (Ct. App. 2013).

Where defendant stipulated to all elements of the offense, except whether he was at the victim’s home at the time of the charged offense, which he contested at trial, the defendant’s knowledge of an existing no contact order may be presumed to have been stipulated. State v. Hochrein, 154 Idaho 993, 303 P.3d 1249 (Ct. App. 2013).

Although no Idaho criminal rule automatically issues no-contact orders, defendant’s conviction for violating a no-contact order did not have to be vacated. While the underlying no-contact order failed to comply with Idaho R. Crim. P. 46.2(a)(3), providing for a specific expiration date, the magistrate had clearly issued an order prohibiting defendant from contacting the victim, thereby satisfying paragraph (2)(b). State v. Hillbroom, 158 Idaho 789, 352 P.3d 999 (2015).

Enhancement.

Under the plain language of subsection (3), for enhanced sentencing, whether prior no-contact violations were committed close in time or against the same victim, or whether prior judgments of conviction were entered on the same day, is irrelevant, as long as there are two separate prior convictions within five years. State v. Saviers, 156 Idaho 324, 325 P.3d 665 (Ct. App. 2014).

Instead of allowing for rehabilitation between offenses, as does§ 19-2514, the persistent violator statute, the enhanced punishment provisions of this section show an intent to punish repetitive misdemeanor violations determined by the legislature to be particularly harmful, regardless of how little time lapses in between violations. State v. Saviers, 156 Idaho 324, 325 P.3d 665 (Ct. App. 2014).

Jurisdiction.

The incorrect case number in a no-contact order does not deprive the court of jurisdiction of a defendant who pled guilty to a charge of domestic violence in the presence of a child under§ 18-918. It is a simple clerical error which may be fixed by the court. State v. Vaughn, 156 Idaho 13, 319 P.3d 497 (Ct. App. 2014).

Modification.

District court properly determined that it had authority to extend the duration of a no-contact order based on the plain language of this section and Idaho Criminal Rule 46.2, because nothing in the statute or rule indicated that “modification” must be read so narrowly as to exclude duration. State v. Elizarraraz, — Idaho —, — P.3d —, 2020 Ida. App. LEXIS 3 (Ct. App. Jan. 21, 2020).

Compiler’s Notes.

The bracketed insertion in paragraph (2)(b) was added by the compiler to correct the name of the referenced system. See§ 19-5201 et seq.

Amendments.

The 2018 amendment, by ch. 123, added subsection (6).

Effective Dates.

Section 2 of S.L. 2005, ch. 303 declared an emergency. Approved April 6, 2005.

Constitutionality.

Neither the term “dating relationship”, incorporated into this section from§ 39-6303, nor the definition of the crime’s mental element in this section was facially vague. State v. Laramore, 145 Idaho 428, 179 P.3d 1084 (Ct. App. 2007).

Double Jeopardy.

Household Member.

Defendant’s double jeopardy rights were violated when he was tried and and convicted for attempted strangulation under this section subsequent to entering a guilty plea to a misdemeanor domestic battery charge under§ 18-918, where both charges arose from a single criminal episode. The offense of misdemeanor domestic battery does not contain an element that the offense of attempted strangulation does not and attempting to separate defendant’s act of grabbing his girlfriend’s hair and throwing her to the floor from his grabbing her throat, in the same dispute, was not permissible. State v. Moffat, 154 Idaho 529, 300 P.3d 61 (Ct. App. 2013). Household Member.

An information alleging violation of this section and charging defendant with felony domestic battery and attempted strangulation of his 15-year-old daughter was dismissed. The definition of “household member” in§ 18-918(1)(a) plainly limits its application to intimate partners and does not extend to a child living with her father. State v. Schulz, 151 Idaho 863, 264 P.3d 970 (2011).

Intent.

This section, as a whole, did not involve a specific intent element, only the attempted strangulation component required the state to prove a specific intent to strangle the victim. State v. Williston, 159 Idaho 215, 358 P.3d 776 (Ct. App. 2015).

Guilty plea.

Since the charging document tracked the exact statutory language of this section, providing the two means of committing the offense and the applicable general intent required for the choke component, and its allegation of how defendant committed the crime was the very definition of choke, the charging document was sufficient to inform defendant of the nature of the choke component of this section, and the guilty plea, made after he admitted the allegations in the charging document, was knowing, intelligent, and voluntary. State v. Williston, 159 Idaho 215, 358 P.3d 776 (Ct. App. 2015).

Prior Laws.

Former§ 18-1001, which comprised R.S., R.C., & C.L., § 6521; C.S., § 8189; I.C.A.,§ 17-1012, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1001, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Effective Dates.

Section 14 of S.L. 1972, ch. 336 declared an emergency and provided that the act should take effect on and after April 1, 1972.

Am. Jur. 2d.

C.J.S.

ALR.

§ 18-1002. Proof of common barratry.

No person can be convicted of common barratry except upon proof that he has excited suits or proceedings at law in at least three (3) instances, and with a corrupt or malicious intent to vex and annoy.

History.

I.C.,§ 18-1002, as added by 1972, ch. 336, § 1, p. 844.

Prior Laws.

Former§ 18-1002, which comprised R.S., R.C., & C.L., § 6522; C.S., § 8190; I.C.A.,§ 17-1013, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1002, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Prior Laws.

Former§ 18-1003, which comprised R.S., R.C., & C.L., § 6524; C.S., § 8192; am. S.L. 1927, ch. 52, § 1, p. 67; I.C.A.,§ 17-1015, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1003, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Attorneys.

An attorney has a right to purchase a tax title from the county, and to bring an action to quiet his title thereto, without violating this section. Griffith v. Anderson, 22 Idaho 323, 125 P. 218 (1912).

The common law rule of champerty and maintenance not being in force in this state, under§ 3-205 the measure and mode of attorneys’ fees are left to agreement, expressed or implied between attorney and client, and will be enforceable unless contrary to good morals or sound public policy. Merchants Protective Ass’n v. Jacobsen, 22 Idaho 636, 127 P. 315 (1912).

An attorney is prohibited from buying, either directly or indirectly, any evidence of debt or thing in action with intent of suing thereon. Merchants Protective Ass’n v. Jacobsen, 22 Idaho 636, 127 P. 315 (1912).

Champerty and Maintenance.

Champerty at common law consisted in supporting or maintaining a suit for another on agreement to have a part of the thing or some benefit or an agreement to divide the receipts from the action. Merchants Protective Ass’n v. Jacobsen, 22 Idaho 636, 127 P. 315 (1912). An assignment of a claim for collection with the agreement that the assignor is to receive one-half of the amount collected, together with any expenses advanced by the assignor, is not contrary to good morals or sound public policy. Merchants Protective Ass’n v. Jacobsen, 22 Idaho 636, 127 P. 315 (1912).

Collection Agencies.

Collection agency is not prohibited from buying part interest in claim to compensate itself for collecting same, even though suit is instituted. Merchants Protective Ass’n v. Jacobsen, 22 Idaho 636, 127 P. 315 (1912).

The taking of an interest in an obligation for the purpose of collecting the same does not constitute a violation of this section. Merchants Protective Ass’n v. Jacobsen, 22 Idaho 636, 127 P. 315 (1912); Interstate Credit League v. Widdison, 50 Idaho 493, 297 P. 1106 (1931).

Former Chapter 22, title 26 of the Idaho Code (and the previous enactment of S.L. 1915, ch. 76, p. 187), by authorizing collection of debts by licensed collection agencies, recognized that lawful means for accomplishment thereof may be employed, which impliedly includes the right to invoke legal processes afforded by court procedures notwithstanding the provisions of the former section prohibiting attorneys, public officers or licensed collectors becoming interested in a debt with intent to sue thereon; consequently, this did not support respondent’s argument that appellant could not have owned the debt as a true assignee. Garren v. Saccomanno, 86 Idaho 268, 385 P.2d 396 (1963).

Public Policy.

Although the doctrine of champerty and maintenance does not prevail in this state, the courts will refuse to grant relief or enforce contracts where they are contrary to good morals or sound public policy. Merchants Protective Ass’n v. Jacobsen, 22 Idaho 636, 127 P. 315 (1912).

Am. Jur. 2d.

C.J.S.

ALR.

§ 18-1004. Attorney defending when partner prosecutes.

Every attorney who directly or indirectly advises in relation to, or aids, or promotes the defense of, any action or proceeding in any court, the prosecution of which is carried on, aided or promoted by any person as prosecuting attorney, or other public prosecutor, with whom such person is directly or indirectly connected as a partner, or who, having himself prosecuted or in any manner aided or promoted any action or proceeding in any court as prosecuting attorney or other public prosecutor, afterward, directly or indirectly, advises in relation to, or takes any part in, the defense thereof, as attorney or otherwise, or who takes or receives any valuable consideration from, or on behalf of any defendant in any such action, upon any understanding or agreement whatever having relation to the defense thereof, is guilty of a misdemeanor, and in addition to the punishment prescribed therefor, forfeits his license to practice law.

History.

I.C.,§ 18-1004, as added by 1972, ch. 336, § 1, p. 844.

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Prior Laws.

Former§ 18-1004, which comprised R.S., R.C., & C.L., § 6525; C.S., § 8193; I.C.A.,§ 17-1016, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal.

Prior Laws.

Former§ 18-1005, which comprised R.S., R.C., & C.L., § 6526; C.S., § 8194; I.C.A.,§ 17-1017, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal.

Prior Laws.

Former§ 18-1101, which comprised R.S., § 6805; I.C.A.,§ 17-1802, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1101, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 3.

Effective Dates.

Section 14 of S.L. 1972, ch. 336 declared an emergency and provided that the act should take effect on and after April 1, 1972.

Evidence.

Validity of a ceremonial marriage will be presumed in absence of evidence tending to show that it was not regular and in accordance with law. State v. Martinez, 43 Idaho 180, 250 P. 239 (1926).

Testimony of justice of the peace of another state that he performed a marriage ceremony is a prima facie showing of his authority to perform it. State v. Martinez, 43 Idaho 180, 250 P. 239 (1926).

Evidence that alleged first wife went under defendant’s name is competent, along with other evidence, to establish identity. State v. Martinez, 43 Idaho 180, 250 P. 239 (1926).

Am. Jur. 2d.

52 Am. Jur. 2d, Marriage, §§ 70, 71.

C.J.S.

ALR.

Validity of bigamy and polygamy statutes and constitutional provisions. 22 A.L.R.6th 1.

Prior Laws.

Former§ 18-1102, which comprised R.S., § 6806; I.C.A.,§ 17-1803, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1102, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Am. Jur. 2d.

ALR.

Prior Laws.

Former§ 18-1103, which comprised R.S., § 6807; I.C.A.,§ 17-1804, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1103, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Punishment.

Where trial court imposed on defendant, convicted of bigamy, a punishment prescribed by former law, which provided for punishment of polygamy, correction of error by supreme court did not prejudice defendant’s rights. State v. Martinez, 43 Idaho 180, 250 P. 239 (1926).

Am. Jur. 2d.

C.J.S.

Prior Laws.

Former§ 18-1104, which comprised Cr. & P. 1864, § 128; R.S., R.C., & C.L., § 6808; C.S., § 8285; I.C.A.,§ 17-1805, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1104, as added by S.L. 1971, ch. 143, § 1. However, the later section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Elements of Offense.

Under this section, marriage with husband or wife of another must be knowingly and wilfully entered into before act of marriage constitutes crime. State v. Sayko, 37 Idaho 430, 216 P. 1036 (1923).

Proof of Marriage.

Proof of marriage may be at least prima facie shown by proof of fact that man or woman lives together with person of opposite sex as his or her spouse, with general recognition in community of their being married to each other; by proof of general repute in family; or by proof of general repute in community. State v. Poulos, 36 Idaho 453, 212 P. 120 (1922); State v. Sayko, 37 Idaho 430, 216 P. 1036 (1923).

Am. Jur. 2d.

ALR.

Prior Laws.

Former§ 18-1105, which comprised S.L. 1905, p. 293, § 1; reen. R.C. & C.L., § 6806; C.S., § 8283; I.C.A.,§ 17-1801, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972.

Compiler’s Notes.

This section, which comprised I.C.,§ 18-1105, as added by S.L. 1972, ch. 336, § 1, p. 844, was repealed by S.L. 1994, ch. 131, § 7, effective July 1, 1994.

Prior Laws.

Former§ 18-1201, which comprised S.L. 1915, ch. 119, §§ 1, 2, p. 264; reen. C.L., § 6829; C.S., § 8297; I.C.A.,§ 17-2601; am. S.L. 1965, ch. 24, § 1, p. 37 was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1201, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Compiler’s Notes.

This section, which comprised I.C.,§ 18-1201, as added by S.L. 1972, ch. 336, § 1, p. 844, was repealed by S.L. 1978, ch. 96, § 1.

Prior Laws.

Former§ 18-1203, which comprised S.L. 1911, ch. 94; compiled and reen. C.L., § 6829a; C.S., § 8298; I.C.A.,§ 17-2602, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972.

Compiler’s Notes.

This section, which comprised I.C.,§ 18-1202, as added by S.L. 1972, ch. 336, § 1, p. 844, effective April 1, 1972 was repealed by S.L. 1972, ch. 381, § 17, effective April 1, 1972.

Prior Laws.

Former§ 18-1203, which comprised S.L. 1913, ch. 123, § 1, p. 469; reen. C.L., § 6329b; C.S., § 8299; I.C.A.,§ 17-2603; am. S.L. 1965, ch. 24, § 2, p. 37, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972.

Compiler’s Notes.

This section, which comprised I.C.,§ 18-1203, as added by S.L. 1972, ch. 336, § 1, p. 844, effective April 1, 1972, was repealed by S.L. 1972, ch. 381, § 9, effective April 1, 1972.

Cross References.

“Bribe” defined,§ 18-101.

Bribery of electors,§ 18-2320.

Bribery of executive officers and others,§ 18-2701.

Penalty for felony when not otherwise provided,§ 18-112.

Prior Laws.

Fomer§ 18-1301, which comprised Cr. & P. 1864, § 92; R.S., R.C., & C.L., § 6430; C.S., § 8138; I.C.A.,§ 17-701, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1301, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Effective Dates.

Section 14 of S.L. 1972, ch. 336 declared an emergency and provided that the act should take effect on and after April 1, 1972.

Multiple Offenses.

The fact that an officer or giver of a bribe may be prosecuted under any one of a number of sections does not militate against a prosecution under this section. State v. Emory, 55 Idaho 649, 46 P.2d 67 (1935).

Am. Jur. 2d.

29A C.J.S., Embracery, § 1 et seq.

ALR.

§ 18-1302. Receipt of bribe by officer.

Every judicial officer, juror, referee, arbitrator or umpire, and every person authorized by law to hear or determine any question or controversy, who asks, receives or agrees to receive any bribe, upon any agreement or understanding that his vote, opinion or decision upon any matters or question which is or may be brought before him for decision, shall be influenced thereby, is guilty of a felony.

History.

I.C.,§ 18-1302, as added by 1972, ch. 336, § 1, p. 844.

Cross References.

Penalty for felony when not otherwise provided,§ 18-112.

Prior Laws.

Former§ 18-1302, which comprised Cr. & P. 1864, § 92; R.S., R.C., & C.L., § 6431; C.S., § 8139; I.C.A.,§ 17-702, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1302, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

C.J.S.

§ 18-1303. Acceptance of rewards.

Every judicial officer who asks or receives any emolument, gratuity or reward, or any promise thereof, except such as may be authorized by law, for doing any official act, is guilty of a misdemeanor.

History.

I.C.,§ 18-1303, as added by 1972, ch. 336, § 1, p. 844.

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Prior Laws.

Former§ 18-1303, which comprised Cr. & P. 1864, § 113; R.S., R.C., & C.L., § 6432; C.S., § 8140; I.C.A.,§ 17-703, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1303, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Cross References.

Penalty for felony when not otherwise provided,§ 18-112.

Prior Laws.

Former§ 18-1304, which comprised Cr. & P. 1864, § 112; R.S., R.C., & C.L., § 6433; C.S., § 8141; I.C.A.,§ 17-704, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1304, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Am. Jur. 2d.

§ 18-1305. Misconduct of jurors and arbitrators.

Every juror or person drawn or summoned as a juror, or chosen arbitrator or umpire, or appointed referee, who either:

1. Makes any promise or agreement to give a verdict or decision for or against any party; or,
2. Wilfully and corruptly permits any communication to be made to him, or receive any book, paper, instrument or information relating to any cause or matter pending before him, except according to the regular course of proceedings, is guilty of a felony.

History.

I.C.,§ 18-1305, as added by 1972, ch. 336, § 1, p. 844.

Cross References.

Penalty for felony when not otherwise provided,§ 18-112.

Prior Laws.

Former§ 18-1305, which comprised Cr. & P. 1864, § 112; R.S., R.C., & C.L., § 6434; C.S., § 8142; I.C.A.,§ 17-1705, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1305, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

This section, which comprised I.C.,§ 18-1306, as added by S.L. 1971, ch. 143, § 1, p. 630, effective January 1, 1972, was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Prior Laws.

Former§ 18-1307, which comprised R.S., R.C., & C.L., § 6436; C.S., § 8144; I.C.A.,§ 17-707, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1307, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Prior Laws.

Former§ 18-1308, which comprised S.L. 1905, p. 416, § 1; reen. R.C. & C.L., § 6437; C.S., § 8145; I.C.A.,§ 17-708, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1308, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Cross References.

“Bribe” defined,§ 18-101.

Prior Laws.

Former§ 18-1309, which comprised Cr. & P. 1864, § 93; R.S., R.C., & C.L., § 6528; am. S.L. 1919, ch. 148, p. 443; C.S., § 8196; I.C.A.,§ 17-1019, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1309, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Policemen.

Prosecuting Attorney.

Police officer accepting bribe for protecting woman illegally operating a hotel could be indicted under this section or§ 18-2702. There is no conflict between these two sections. State v. Emory, 55 Idaho 649, 46 P.2d 67 (1935). Prosecuting Attorney.

Addition of this section gives weight to conclusion that prosecuting attorney is not executive officer of state, whose bribery is provided for under§ 18-2701. State v. Wharfield, 41 Idaho 14, 236 P. 862 (1925).

Am. Jur. 2d.

C.J.S.

ALR.

Furnishing public official with meals, lodging, or travel, or receipt of such benefits, as bribery. 67 A.L.R.3d 1231.

Criminal offense of bribery as affected by lack of authority of state public officer or employee. 73 A.L.R.3d 374.

Who is public official within meaning of federal statute punishing bribery of public official (18 U.S.C.A. § 201). 161 A.L.R. Fed. 491.

Compiler’s Notes.

These sections, which comprised I.C.,§§ 18-1310, 18-1311, as added by S.L. 1971, ch. 143, § 1, p. 630, effective January 1, 1972, were repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Compiler’s Notes.

The words “this chapter” as used in this section refer to the code chapter enacted by S.L. 1972, ch. 381, § 20, and amended by S.L. 1990, ch. 328, § 2, originally designated as Chapter 13A, Title 18, Idaho Code, and now compiled as§§ 18-1351 to 18-1353, 18-1354 to 18-1361, and 18-1362.

Amendments.

The 2010 amendment, by ch. 169, added the last sentence in subsection (1).

Private Right of Action.

A private right of action for insurance company’s alleged obstruction of justice and violations of the Idaho Bribery and Corrupt Influences Act was not available and district court’s dismissal of these claims was proper. Yoakum v. Hartford Fire Ins. Co., 129 Idaho 171, 923 P.2d 416 (1996).

A.L.R.

A.L.R. — Who is public official within meaning of federal statute punishing bribery of public official (18 U.S.C.A. § 201). 161 A.L.R. Fed. 491.

Defenses to state obstruction of justice charge relating to interfering with criminal investigation or judicial proceeding. 87 A.L.R.5th 597.

Cross References.

Penalty for felony when not otherwise provided,§ 18-112.

Idaho Law Review.

Idaho Law Review. — Behind the Times: A Comparative Argument that the State of Idaho Should Combat the Revolving Door Effect with Waiting Period Legislation, Comment. 52 Idaho L. Rev. 639 (2016).

Cross References.

Penalty for felony when not otherwise provided,§ 18-112.

Penalty for misdemeanor violation of chapter,§ 18-1360.

Constitutionality.

This section, a threats against a public servant statute, is not facially overbroad, as it covers a wide range of conduct that is within the state’s power to prohibit. Although there are hypothetical situations where lawful threats could fall within the ambit of the section, those situations can be dealt with on a case-by-case basis. State v. Sanchez, — Idaho —, 448 P.3d 991 (2019).

Reaction to Threat.

In a threats against a public servant case, because it was a material and disputed issue at trial whether a letter contained threats to harm the prosecutor or mere attempts at negotiation, the prosecutor’s reaction to receiving the defendant’s letter was admissible, as it was relevant to show that the interaction between defendant and the prosecutor was not one of negotiation. State v. Sanchez, — Idaho —, 448 P.3d 991 (2019).

Idaho Law Review.

Idaho Law Review. — Behind the Times: A Comparative Argument that the State of Idaho Should Combat the Revolving Door Effect with Waiting Period Legislation, Comment. 52 Idaho L. Rev. 639 (2016).

Cross References.

Penalty for felony when not otherwise provided,§ 18-112.

Penalty for misdemeanor violation of chapter,§ 18-1360.

Use of telephone to threaten or harass,§§ 18-6710, 18-6711.

Effective Dates.

Section 2 of S.L. 1982, ch. 263 declared an emergency. Approved March 31, 1982.

Section 2 of S.L. 1992, ch. 113 declared an emergency. Approved April 1, 1992.

Cross References.

Penalty for misdemeanor violation of chapter,§ 18-1360.

Cross References.

Penalty for misdemeanor violation of chapter,§ 18-1360.

Cross References.

Penalty for misdemeanor violation of chapter,§ 18-1360.

Cross References.

Penalty for misdemeanor violation of chapter,§ 18-1360.

Effective Dates.

Section 21 of S.L. 1972, ch. 381, provided the act should take effect from and after April 1, 1972.

Amendments.

The 2015 amendment, by ch. 141, substituted “74-403” for “59-703” in subsection (6).

The 2016 amendment, by ch. 289, updated the statutory references in paragraph (1)(f).

Effective Dates.

Section 2 of S.L. 2002, ch. 304 declared an emergency. Approved March 26, 2002.

Cross References.

Penalty for misdemeanor violation of chapter,§ 18-1360.

Compiler’s Notes.

The words “this chapter” as used in this section refer to the code chapter enacted by S.L. 1972, ch. 381, § 20, and amended by S.L. 1990, ch. 328, § 2, originally designated as Chapter 13A, Title 18, Idaho Code, and now compiled as§§ 18-1351 to 18-1353, 18-1354 to 18-1361, and 18-1362.

Effective Dates.

Section 4 of S.L. 1996, ch. 193 declared an emergency. Approved March 12, 1996.

Cross References.

Attorney general,§ 67-1401 et seq.

Cross References.

Theft, consolidation of offenses,§ 18-2401.

Prior Laws.

Former§ 18-1401, which comprised Cr. & P. 1864, § 59; R.S., R.C., & C.L., § 7014; C.S., § 8400; I.C.A.,§ 17-3401; am. S.L. 1963, ch. 293, § 1, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1401, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Amendments.

The 2020 amendment, by ch. 219, substituted “warehouse, mill, barn, stable, outhouse, or a building other than one defined in section 18-1401, Idaho Code” for “warehouse, store, mill, barn, stable, outhouse, or other building” near the beginning of the section.

Compiler’s Notes.

Sections 18-1402 to 18-1405 were amended or repealed by S.L. 1992, Chapter 167 to end the distinction between the degrees of burglary and to reduce the maximum punishment from 15 years to 10 years.

Effective Dates.

Section 14 of S.L. 1972, ch. 336 declared an emergency and provided that the act should take effect on and after April 1, 1972.

Breaking and Entry.

Breaking that was required at common law is not essential element of crime in this state. State v. Sullivan, 34 Idaho 68, 199 P. 647 (1921).

Entry made through front door of poolroom during business hours might constitute burglary, if with felonious intent. State v. Bull, 47 Idaho 336, 276 P. 528 (1929).

Defendant remaining on outside in capacity of a lookout may be found guilty of burglary as principal. State v. Bull, 47 Idaho 336, 276 P. 528 (1929).

To sustain conviction for burglary, there must be proof of breaking and entering. Evidence that accused tore down a shed and took it away without proof that they entered it was insufficient. State v. Allen, 53 Idaho 603, 26 P.2d 177 (1933).

Breaking is not an essential element of the crime of burglary under this section. State v. Vanek, 59 Idaho 514, 84 P.2d 567 (1938).

The “breaking” required at common law to constitute the crime of burglary is not an essential element of the crime under this section. Consequently, the information need not allege an unlawful “breaking.” State v. Vanek, 59 Idaho 514, 84 P.2d 567 (1938).

Building.

The term “enter” in this section is not ambiguous. It applies to any entry, with the required intent. The entry does not include an element of unlawfulness. State v. Weeks, 160 Idaho 195, 370 P.3d 398 (Ct. App. 2016). Building.

An inn was a building within the meaning of the former section. State v. Oldham, 92 Idaho 124, 438 P.2d 275 (1968).

Conviction under the former statute did not require proof of ownership of building entered or of personal property taken therein, but only that accused entered with intent to commit grand or petit larceny or any felony. State v. Carver, 94 Idaho 677, 496 P.2d 676 (1972).

For purposes of the burglary state, the term “building” should be read broadly. State v. Tarrant-Folsom, 140 Idaho 556, 96 P.3d 657 (Ct. App. 2004).

Rather than limiting the definition of a building to a structure with walls and a roof; for purposes of the burglary statute, it is the legislative intent that a building is a structure which has a capacity to contain, and is designed for the habitation of man or animals, or the sheltering of property. State v. Tarrant-Folsom, 140 Idaho 556, 96 P.3d 657 (Ct. App. 2004).

Closed Vehicle.

Tested by its character and use, a truck camper may properly be considered a closed vehicle within the contemplation of the burglary statute. State v. Martinez, 122 Idaho 158, 832 P.2d 331 (Ct. App. 1992) (see 1997 amendment).

District court properly granted defendant’s motion to dismiss, holding that no burglary had been shown, as the state had failed to show that the truck was a “closed vehicle,” within the meaning of this section in light of testimony that thief had reached through an open window of the truck to gain access to a stolen tape player. State v. Martinez, 126 Idaho 801, 891 P.2d 1061 (Ct. App. 1995) (see 1997 amendment).

Where defendant reached through a narrow opening in the top of a partially rolled down window, unlocked the door, opened the door, and entered the vehicle in furtherance of his theft of a stereo, the act of opening the door breached a barrier of the vehicle which had been closed to public intrusion and constituted a breaking. State v. Ortega, 130 Idaho 637, 945 P.2d 863 (Ct. App. 1997).

Constitutionality.

This section does not violate the United States or Idaho Constitution based on equal protection or free speech, because it does not create a classification, but applies to all people who intend to steal from within a building or vehicle, and it does not prohibit mere preparation, thought, or fantasy. State v. Vance, — Idaho —, — P.3d —, 2015 Ida. App. LEXIS 111 (Ct. App. Nov. 3, 2015); State v. Rawlings, 159 Idaho 498, 363 P.3d 339 (2015).

This section is not unconstitutional under equal protection or First Amendment grounds. State v. Rome, 160 Idaho 40, 368 P.3d 660 (Ct. App. 2016).

Construction.

Defendant’s actions in entering a cab-over farm truck by unlatching the cab and pushing it forward, exposing the engine compartment violated this section; by opening the cab, defendant broke a barrier of the vehicle that was closed to the public. State v. Sexton-Gwin, 154 Idaho 646, 301 P.3d 652 (Ct. App. 2013).

Conviction Affirmed.

Disposing of Stolen Property.

As burglary statute proscribed the entry into an office in a hospital with the intent to commit a theft, and defendant was in possession of items taken from the office when arrested, defendant’s conviction for burglary was affirmed. State v. Smith, 139 Idaho 295, 77 P.3d 984 (Ct. App. 2003). Disposing of Stolen Property.

Disposing of stolen property is not a lesser included offense of the crime of burglary. State v. Martin, 104 Idaho 195, 657 P.2d 492 (Ct. App. 1983).

Double Jeopardy.

In light of the purpose of the Major Crimes Act (MCA) and uniform authority, defendant’s argument that the district court should have applied Idaho’s double jeopardy law failed, because what Idaho courts might think about the legality of defendant’s federal prosecution was irrelevant, and, the MCA’s incorporation of state law for burglary notwithstanding, the offense for which defendant was prosecuted was a federal offense, and whether defendant’s prosecution violated the Double Jeopardy Clause is a federal issue to be determined by reference to federal constitutional principles. United States v. Pluff, 253 F.3d 490 (9th Cir. 2001).

Evidence.

Possession of burglarious tools as evidence in connection with charge of burglary can only be considered where burglary is first shown to have been committed. State v. Sullivan, 34 Idaho 68, 199 P. 647 (1921).

Where burglarious entry has been proved, it may be shown that property allegedly stolen was found in accused’s possession. State v. Sullivan, 34 Idaho 68, 199 P. 647 (1921).

Want of consent to taking of property may be shown by means other than testimony of owner. State v. Bull, 47 Idaho 336, 276 P. 528 (1929).

The evidence must prove beyond a reasonable doubt that there was an entry, and if the evidence leaves this element to conjecture, it falls short of the requirements of the law. State v. Allen, 53 Idaho 603, 26 P.2d 177 (1933).

Petitioner was properly held on charge of burglary where evidence at preliminary hearing showed that he pried open a locked window and entered darkened house of people away from home, though police stationed inside arrested him before he could steal anything. Ex parte Seyfried, 74 Idaho 467, 264 P.2d 685 (1953).

There was sufficient evidence to convict defendant of attempted burglary where the evidence showed that night watchman discovered that a person was attempting to break in and fired through the door and defendant was found eight to 12 feet from the door with bullet wounds in his arm and leg, two screwdrivers were found near the body of the defendant, and the car of the defendant was found parked close by. State v. Bedwell, 77 Idaho 57, 286 P.2d 641 (1955).

Evidence showing the presence of appellants in various stores, their identification and their taking sundry articles from those stores with thoroughly positive identification of the merchandise, that such articles were not sold to appellants and the finding of such articles in appellants’ possession, was sufficient to warrant conviction. State v. Polson, 81 Idaho 147, 339 P.2d 510 (1959).

The surrounding circumstances and the record as a whole indicate sufficient evidence of appellant’s intent upon entry into the department store to commit the crime of larceny. State v. Peterson, 87 Idaho 147, 391 P.2d 846 (1964). Where the police found the door of a department store forced open, the lock of another door forced, and the defendant hiding behind the air conditioner on an adjoining roof that could be reached from the store’s elevator shaft, even though no burglar tools were found and nothing was missing from the store, such evidence was sufficient to conclude that defendant entered the store with the requisite intent to commit either grand or petit larceny and was guilty of burglary. State v. Liston, 95 Idaho 849, 521 P.2d 1028 (1974).

Where two police officers identified defendant as man they saw fleeing from bar which had just been burglarized, there was substantial evidence to sustain conviction of first-degree burglary. State v. Sena, 106 Idaho 25, 674 P.2d 454 (Ct. App. 1983).

In a trial for theft of packages of meat from a grocery store, evidence of other meat packages from other stores found in the defendant’s automobile without accompanying sales receipts was admissible as the packages were relevant to the defendant’s intent and common scheme or plan. State v. Matthews, 108 Idaho 482, 700 P.2d 104 (Ct. App. 1985).

Evidence was sufficient to support the conviction. State v. Kelling, 108 Idaho 716, 701 P.2d 664 (Ct. App. 1985).

On appeal from a conviction for burglary in the second degree, where the defendant was found pounding on an electrical junction box in a warehouse not in use, the trial court properly admitted evidence of receipts from a recycling business which showed that the defendant had sold approximately two tons of scrap metal to the recycler in the three months preceding the arrest, since the receipts were relevant to show that the defendant entered the warehouse with the intent to steal materials. State v. Whitfield, 108 Idaho 877, 702 P.2d 915 (Ct. App. 1985).

Evidence of a forced entry will support a permissive inference of burglary with the requisite intent to commit larceny or a felony. State v. Hoffman, 109 Idaho 127, 705 P.2d 1082 (Ct. App. 1985).

The testimony of dog handlers whose dogs were scented and placed on a trail within three to five hours after the burglary, near where witnesses observed a man running, was admissible corroborating evidence of the defendant’s involvement in the burglary. State v. Streeper, 113 Idaho 662, 747 P.2d 71 (1987).

Where a reasonable juror could have inferred that the crash, heard by the manager of the grain and feed store prior to sunrise, was caused by the burglar’s escape from the building, the evidence supported a conviction in the first degree. State v. Streeper, 113 Idaho 662, 747 P.2d 71 (1987).

Evidence of a forced entry will support a permissive inference of burglary with the requisite intent to commit a theft; because the record shows that defendant made a forced entry into the home, the required intent to commit a theft, at the time defendant entered the home, was established by the evidence. State v. Knutson, 121 Idaho 101, 822 P.2d 998 (Ct. App. 1991).

Defendant was properly convicted of aiding and abetting in the commission of a burglary where the state’s witness testified he had seen a man and woman taking items from storage containers behind the pawnshop, and police found stolen items from the pawnshop in the residence defendant shared with her husband and in the trunk of their car. State v. Tarrant-Folsom, 140 Idaho 556, 96 P.3d 657 (Ct. App. 2004).

As the evidence was insufficient to support an inference beyond a reasonable doubt that defendant had a deadly weapon with which he assaulted a victim for purposes of supporting his conviction for aggravated assault, his conviction for burglary based on the theory that he entered a garage with the intent to commit aggravated assault also could not be sustained. State v. Curry, 153 Idaho 394, 283 P.3d 141 (Ct. App. 2012). Evidence was sufficient to sustain the burglary conviction, where defendant did not have a lawful interest in the merchandise that he pawned. State v. Dix, — Idaho —, — P.3d —, 2019 Ida. App. LEXIS 7 (Ct. App. Feb. 27, 2019).

— Sufficient.

Evidence was sufficient to support defendant’s convictions as an accomplice to aggravated battery, robbery, and burglary. Even though defendant did not actively participate in the actual robbery, he knowingly supplied a loaded gun for use in the robbery, knew about the money that the victim was saving, and exerted influence over his codefendants to perform the deed. State v. Mitchell, 146 Idaho 378, 195 P.3d 737 (Ct. App. 2008).

Firearms Enhancement.

Where the evidence showed that a shot was fired after defendant and another person attempted to escape after entering a victim’s barn, there was sufficient evidence that defendant displayed, used, threatened, or attempted to use a firearm while committing or attempting to commit a burglary. State v. McLeskey, 138 Idaho 691, 69 P.3d 111 (2003).

Guilty Plea.

— Acceptance.

Where the total record contained evidence from which strong inferences arose that defendant intended to commit theft when he broke into restaurant, defendant’s assertion in presentence report of his lack of criminal intent was not sufficient to raise an obvious doubt as to his guilt, and the court did not err in accepting defendant’s guilty plea. Fowler v. State, 109 Idaho 1002, 712 P.2d 703 (Ct. App. 1985).

— Effect.

A defendant’s pleas of guilty to counts of first-degree burglary, voluntarily and understandingly given, barred his challenge in the supreme court to the trial court’s denial of defendant’s motion to suppress his oral confession, for the question of whether the confession would have been admissible at trial was no longer relevant. State v. Tipton, 99 Idaho 670, 587 P.2d 305 (1978).

Given the defendant’s voluntary entry of pleas of guilty and express admission of guilt to first degree burglary charges, the court was not obliged to establish a further factual basis for the charges and did not err in accepting defendant’s pleas of guilty to first degree burglary charges at arraignment hearing. State v. Coffin, 104 Idaho 543, 661 P.2d 328 (1983).

Where, at the sentencing hearing, the court noted its concern that defendant pleaded guilty to first degree burglary while maintaining his innocence, i.e., that he had entered the premises in the daytime, and the defendant was given ample opportunity to withdraw his plea but nevertheless made a reasoned decision to continue with his pleas of guilty consistent with the terms of his plea bargain, this was clearly a case in which the defendant intelligently concluded that it was in his own best interest to enter a plea of guilty to the crimes charged. He chose to take his chances that the trial court would exercise leniency in sentencing, as opposed to facing the additional charges which were dismissed upon the court’s acceptance of his pleas, and, having struck a plea bargain with the prosecutor and insisting upon following that bargain when given the opportunity to withdraw his plea, defendant could not be heard to complain that the district court’s acceptance of his pleas of guilty to the first degree burglary charges was in error. State v. Coffin, 104 Idaho 543, 661 P.2d 328 (1983). A valid plea of guilty, voluntarily and understandingly given, waives all nonjurisdictional defects and defenses, whether constitutional or statutory, in prior proceedings; accordingly, the defendant’s plea of guilty to a charge of burglary waived his right to contest the preliminary hearing procedure. State v. Fowler, 105 Idaho 642, 671 P.2d 1105 (Ct. App. 1983).

Indictment and Information.

An information for burglary following in substance language of the statute is sufficient. State v. Bull, 47 Idaho 336, 276 P. 528 (1929).

Under the statute but a single act is required to constitute the crime of burglary, to-wit, entry. Therefore, the entry of any house, etc., “with intent to commit grand or petit larceny or any felony,” constitutes the crime of burglary. Information charging the commission of the act which constitutes the offense charges the fact or circumstance of the entry, and having charged the commission of that act in ordinary and concise language, and in such manner as to enable a person of common understanding to know what was intended, it follows that the information fully complies with every requirement of the statute. State v. Vanek, 59 Idaho 514, 84 P.2d 567 (1938).

Information charged attempted burglary where the information stated that the defendant on or about specified date and place did wilfully and feloniously attempt to break into and enter in the nighttime an identified building with intent to commit larceny therein. State v. Bedwell, 77 Idaho 57, 286 P.2d 641 (1955).

A trial court did not err in permitting a prosecuting attorney to amend an indictment by changing the charging code section from former§ 18-1402 (repealed), which distinguished first degree burglary from second degree burglary, to this section which defines the crime of burglary in general, and the amendment did not have the effect of changing the offense with which the accused was charged. State v. Bullis, 93 Idaho 749, 472 P.2d 315 (1970).

Instructions.

Instruction by court in prosecution of defendant for burglary that the entry of the defendant must have been made feloniously and burglariously and with intent to commit larceny therein was sufficient, and the court was not required to instruct the jury on the theory of the defendant that he made the entry for a good and sufficient reason. State v. Fedder, 76 Idaho 535, 285 P.2d 802 (1955).

In a prosecution for burglary in the first degree, it was error for the court to refuse to give the following requested instruction: “An act committed or an omission made under an ignorance or mistake of fact which disproves any criminal intent is not a crime.” State v. Cronk, 78 Idaho 585, 307 P.2d 1113 (1957).

Where the evidence linking a defendant to a burglary is entirely circumstantial, it is not sufficient that the court give instructions which only distinguish between direct and circumstantial evidence. It is error to refuse to give an instruction requested by the defendant informing the jury that a conviction cannot be based solely on circumstantial evidence, unless the circumstances are consistent with guilt and inconsistent with innocence, and incapable of explanation on any other reasonable hypothesis than that of guilt. State v. Curry, 103 Idaho 332, 647 P.2d 788 (Ct. App. 1982). Where the record in a burglary prosecution disclosed no special controversy about identification of the defendant, the district court did not err by refusing the defendant’s proposed instruction focusing exclusively on identification. State v. Williams, 103 Idaho 635, 651 P.2d 569 (Ct. App. 1982), overruled on other grounds as stated in, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984).

An appellate court, faced with a guilty verdict, is required to accept all justifiable inferences in support of the verdict, but it is for the jury to decide, in the first instance, whether to draw an inference, and how much weight to give it. Therefore, even if a conviction for burglary could be upheld on appeal, based upon an inference from possession of recently stolen property, it does not follow that the jury should be instructed on the sufficiency of the inference, by itself, to establish guilt since such language may distract the jury from its basic function — to determine, from all the evidence, whether the state has proven beyond a reasonable doubt each of the elements of burglary. State v. Williams, 103 Idaho 635, 651 P.2d 569 (Ct. App. 1982), overruled on other grounds as stated in, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984).

Intent.

Question of intent with which defendant entered building is for jury. State v. Dwyer, 33 Idaho 224, 191 P. 203 (1920); State v. Bull, 47 Idaho 336, 276 P. 528 (1929).

Knowledge of any specific property within building on part of accused is not necessary to make act burglary. State v. Dwyer, 33 Idaho 224, 191 P. 203 (1920).

Where an intent to commit larceny or a felony was formed after the entry, a prosecution for burglary will not lie; the entry and the intent must be concomitant. State v. Sullivan, 34 Idaho 68, 199 P. 647 (1921).

One of the essential ingredients of bank burglary is intent to commit larceny. One entering a scheme to trap or help trap bank burglars was not guilty. State v. Bigley, 53 Idaho 636, 26 P.2d 375 (1933).

If a dwelling house is broken and entered in the nighttime, without lawful motive or purpose, a presumption arises that the breaking and entering is with the intent to commit larceny. Ex parte Seyfried, 74 Idaho 467, 264 P.2d 685 (1953).

Having in mind the statutes pertaining to the offense under consideration and to proof of intent and those capable of committing crimes, it becomes clear that burglary is a crime malum in se, as differentiated from a crime malum prohibitum. State v. Cronk, 78 Idaho 585, 307 P.2d 1113 (1957).

The gravamen of the crime of burglary is that entry be made with intent to commit larceny. State v. Polson, 81 Idaho 147, 339 P.2d 510 (1959).

The key element of burglary is that intent to commit larceny, or any felony, must coincide with the entering. State v. Carver, 94 Idaho 677, 496 P.2d 676 (1972).

The crime of burglary is complete when there is an entry with the intent to commit grand or petit larceny or any felony; thus, if a burglar enters with the intent to commit a specific felony abandons or fails to perform that felony, he will still be guilty of burglary. State v. McCormick, 100 Idaho 111, 594 P.2d 149 (1979).

Where the defendant presented the defense that he was incapable of forming the necessary intent, an element of the crime of burglary, it was a question for the trier of fact to determine whether defendant’s intoxication or voluntary use of drugs reached that level. State v. Roles, 100 Idaho 12, 592 P.2d 68 (1979). Burglary is a crime of specific intent and the question of intent is for a jury to decide. Actual commission of a larceny is evidence from which a jury is entitled, but not required, to infer the requisite intent for burglary. State v. Williams, 103 Idaho 635, 651 P.2d 569 (Ct. App. 1982), overruled on other grounds as stated in, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984).

Trial court properly admitted evidence of defendant’s prior thefts from other area stores because it was probative of his intent to commit theft upon entering the store on the day in question. State v. Brummett, 150 Idaho 339, 247 P.3d 204 (Ct. App. 2010).

Larceny.

Since larceny is not in all cases a felony, entry into house with intent to commit larceny is burglary whether it is intended to commit either grand or petit larceny. People v. Stapleton, 2 Idaho 47, 3 P. 6 (1884). See also State v. Sullivan, 34 Idaho 68, 199 P. 647 (1921).

Larceny from building will not constitute crime of burglary unless entry was made with such intent. State v. Sullivan, 34 Idaho 68, 199 P. 647 (1921).

The defendant’s constitutional and statutory protection against double jeopardy was not violated when he was convicted of both burglary in the second degree and grand larceny, relating to the same general set of events, because each crime required proof of separate essential elements not required of the other; burglary was completed upon entry into a building with the intent to commit a felony while larceny, on the other hand, as defined at the time relevant to the prosecution of defendant, did not require entry into any building, but was committed by taking another’s property with felonious intent. Daugherty v. State, 102 Idaho 782, 640 P.2d 1183 (Ct. App. 1982).

Opinion Testimony.

Even assuming that the admission of the opinion testimony of witness that two people were involved in burglary was erroneous, no sufficient prejudice resulted thereby so as to require reversal, and the court’s gratuitous comment that the jury could give the testimony what weight they felt it deserved was no more than a premature statement of the law that credibility is for the jury. In the context in which given, it more likely would have had a denigrating effect on the opinion testimony and did not constitute reversible error. State v. Pratt, 103 Idaho 816, 654 P.2d 909 (1982).

Outhouse or Other Buildings.

Under this section any outhouse or building may be subject of burglary, regardless of whether it is subservient to dwelling. State v. Marks, 45 Idaho 92, 260 P. 697 (1927).

Giving word “outhouse” its usual and ordinary meaning which is usually smaller building subservient to and little distance from dwelling house, yet “outhouse” may be subservient and adjoining business building. State v. Marks, 45 Idaho 92, 260 P. 697 (1927).

Ownership of Building.

Statute does not require proof of ownership of building entered. Ownership is immaterial except for purpose of identification of building. State v. Wansgaard, 46 Idaho 20, 265 P. 671 (1928); State v. Bull, 47 Idaho 336, 276 P. 528 (1929).

Persistent Violator.

Where defendant was involved in a series of home burglaries, he was properly convicted of seven counts of burglary in violation of§ 18-1401, and one count of grand theft in violation of§ 18-2403(1), 18-2407(1)(b). He was properly sentenced as a persistent violator under§ 19-2514 to concurrent life sentences with ten years determinate on all of these charges. State v. Dixon, 140 Idaho 301, 92 P.3d 551 (Ct. App. 2004).

Punishment.

A defendant who burglarizes a residence with the intent to commit rape, and then does in fact commit the rape, deserves to be punished more severely than a defendant who does not commit the intended act after he has entered the residence. State v. McCormick, 100 Idaho 111, 594 P.2d 149 (1979).

Rape.

Since neither rape nor burglary is a lesser included offense of the other, a burglary was complete when defendant entered the victim’s residence with the intent to commit rape, whereas the rape was not committed until there was an act of sexual intercourse, and each of these crimes required proof of separate essential elements not required of the other and the conviction of one would not bar conviction of the other. State v. McCormick, 100 Idaho 111, 594 P.2d 149 (1979).

“Room.”

Appellate court has construed the term “room” in this section as having a nature similar to the other structures and objects capable of being burglarized. State v. Smith, 139 Idaho 295, 77 P.3d 984 (Ct. App. 2003).

Sentence.

Where defendant, on probation for conspiring to deliver marijuana, was charged with first degree burglary in connection with the break-in at a bar, where he pled guilty and was sentenced to 11 years in prison, with a minimum term of three years, and where, in addition, the court revoked his probation on the conspiracy to deliver marijuana conviction and ordered that the previously-imposed sentence be executed and served concurrently with the burglary sentence, the sentence was not unduly severe. State v. Kern, 119 Idaho 295, 805 P.2d 501 (Ct. App. 1991).

Sentencing judge did not abuse his discretion where he sentenced a defendant convicted of two counts of first degree burglary and battery with intent to commit rape, to 25 years, with ten years indeterminate following a minimum period of confinement of 15 years on each of the three felony counts; ordinarily, each felony would carry a maximum penalty of not more than 15 years, however, because the jury found that the defendant was a persistent violator, the maximum permissible sentence for each of the felonies was extended to imprisonment for life. State v. Haggard, 119 Idaho 664, 809 P.2d 525 (Ct. App. 1991).

The court determined that a unified sentence of 11 years, with a three-year minimum period of confinement, should be imposed for defendant’s conviction of first degree burglary, since defendant’s criminal record included prior convictions for first degree burglary and he had been released from custody on the last conviction just five months before committing the instant burglary; therefore, not being a fit candidate for probation, the sentence was reasonable. State v. Gorham, 120 Idaho 576, 817 P.2d 1100 (Ct. App. 1991).

Two concurrent unified sentences of 15 years in the custody of the board of correction, with a minimum period of confinement of six years for two counts of first degree burglary, were not unreasonable where the crimes charged were residential burglaries, defendant had a misdemeanor and felony criminal record, which was extensive and included previous convictions for first degree burglary and grand larceny and, while incarcerated on these convictions, he was convicted of felony possession of a controlled substance by an inmate and received a concurrent indeterminate two-year sentence. State v. Hoffman, 121 Idaho 131, 823 P.2d 165 (Ct. App. 1991). A fixed sentence of two years followed by an indeterminate term of three years for second degree burglary was not unreasonable where defendant had a prior criminal record, including two felony convictions as an adult, defendant was on parole for an auto theft conviction in California at the time he committed the current offense and the presentence investigator stated that defendant appeared to be a manipulative individual who showed no remorse for his victims, and concluded that he was not a suitable candidate for probation. State v. Sands, 121 Idaho 1023, 829 P.2d 1372 (Ct. App. 1992).

Although the court was made aware, through the presentence report, of the physical and emotional abuse suffered by defendant as a child, the judge was concerned about defendant’s prior criminal record, which included juvenile problems, convictions for theft, a sexual abuse of a minor child, probation and parole violations, and his failure to conform to the standards expected of a twenty-year old man; therefore, an aggregate of four years in the custody of the board of correction, with a minimum term of nine months, after pleading guilty to second-degree burglary was not an abuse of sentencing discretion. State v. Birky, 121 Idaho 527, 826 P.2d 488 (Ct. App. 1992).

Based upon the facts and circumstances of the offenses and defendant’s character, the district court did not clearly abuse its discretion in sentencing defendant or in denying his Idaho R. Crim. P. 35 motion where defendant was convicted of first degree burglary, first degree kidnapping, and aggravated battery against his ex-wife. State v. Dowalo, 122 Idaho 761, 838 P.2d 890 (Ct. App. 1992).

The court did not abuse its discretion in imposing a minimum of seven years with a unified sentence of fifteen years for first degree burglary, which was enhanced for the use of a deadly weapon to a fixed twelve-year sentence and an indeterminate sentence of twenty-five years and the same sentence for battery with intent to commit a serious felony, with the same enhancement, on a burglary charge where the presentence investigation report revealed felony convictions for two previous robberies and one battery on a peace officer along with a number of felony burglary and robbery charges that were reduced or the disposition was unknown. State v. Boman, 123 Idaho 947, 854 P.2d 290 (Ct. App. 1993).

Where minimum three-year sentences defendant received were well below the maximum 25 years of incarceration the district court could have imposed through consecutive sentences, defendant’s sentences were not grossly disproportionate to the crimes committed and did not constitute cruel and unusual punishment under the Eighth Amendment. Evans v. State, 127 Idaho 662, 904 P.2d 574 (Ct. App. 1995).

Vacation of the defendant’s consecutive determinate ten-year sentence for burglary was required where the record suggested that the district court went beyond its authority to consider a spectrum of evidence bearing upon the defendant’s character and essentially imposed a sentence for offenses other than the one before the court. State v. Findeisen, 133 Idaho 228, 984 P.2d 716 (Ct. App. 1999).

Shoplifting.

Where retained jurisdiction had expired and divested the district court of jurisdiction to enter orders relating to defendant’s sentence, the order revoking probation and ordering into execution the previously imposed sentence for burglary had to be affirmed. State v. Diggie, 140 Idaho 238, 91 P.3d 1142 (Ct. App. 2004). Shoplifting.

This section is not unduly harsh because it authorizes felony convictions for entering commercial establishments during business hours with the intent to shoplift. Matthews v. State, 113 Idaho 83, 741 P.2d 370 (Ct. App. 1987).

Time of Entry.

The crime of burglary is committed by the entrance into a building with the intent described in this section, regardless of the time of day or night when the entry occurs, and the time of the entry, as to whether day or night, affects only the degree of the offense. State v. Goodmiller, 86 Idaho 233, 386 P.2d 365 (1963); State v. Haggard, 89 Idaho 217, 404 P.2d 580 (1965).

Value of Articles Taken.

Value of slot machines taken by defendant in burglary was immaterial as far as his guilt of crime of burglary was concerned, since the burglary was shown by the breaking and entering, and the fact that the slot machines could only be used for an illegal purpose had nothing to do with the offense charged. State v. Johnson, 77 Idaho 1, 287 P.2d 425 (1955).

All that needed to be proved under the former statute was the entry into one of several named structures with intent to commit grand or petit larceny or any felony and it did not require the theft of any quantity or quality of personal property; it was, therefore not necessary to prove the value of the items burglarized. State v. Bullis, 93 Idaho 749, 472 P.2d 315 (1970).

Decisions Under Prior Law

First-Degree Burglary.

Where the evidence as to the time of burglary is such that it could have been committed between 4 p.m. and sunset on one day or between sunrise and 7:45 of the following day or during the night, the jury’s verdict of guilty must be limited to burglary of the second degree. State v. Darrah, 92 Idaho 25, 435 P.2d 914 (1968).

It was not error for the court to refuse to instruct the jury that second degree burglary was an included offense in first degree burglary where the evidence clearly showed that the burglary took place between 9 p.m. and 11:30 p.m. or did not take place at all. State v. Oldham, 92 Idaho 124, 438 P.2d 275 (1968).

In a burglary prosecution where the trial court’s allowing the prosecution to amend the information adding the words “in the night time” did not add nor change the offense and the accused was neither surprised nor prejudiced by such amendment, the court did not err. State v. Ranstrom, 94 Idaho 348, 487 P.2d 942 (1971).

Am. Jur. 2d.

C.J.S.

ALR.

Entry through partly opened door or window as burglary. 70 A.L.R.3d 881.

Occupant’s absence from residential structure as affecting nature of offense as burglary or breaking and entering. 20 A.L.R.4th 349.

What is “building” or “house” within burglary or breaking and entering statute. 68 A.L.R.4th 425.

Compiler’s Notes.

This section, which comprised I.C.,§ 18-1402, as added by S.L. 1972, ch. 336, § 1, p. 844, was repealed by S.L. 1992, ch. 167, § 1.

Prior Laws.

Former§ 18-1403, which comprised Cr. & P. 1864, § 59; R.S., R.C. & C.L., § 7016; C.S., § 8402; I.C.A.,§ 17-3403, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1403, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Compiler’s Notes.

Sections 18-1402 to 18-1405 were amended or repealed by S.L. 1992, Chapter 167 to end the distinction between the degrees of burglary and to reduce the maximum punishment from 15 years to 10 years.

Ameliorative Sentencing Amendment.

A defendant is entitled to benefit from an ameliorative sentencing amendment that took effect between the time the crime was committed and the time judgment of conviction and sentence was entered. Therefore, defendant was entitled to benefit from the amendment to this section, effective July 1, 1992, which reduced the maximum sentence for burglary from fifteen years to ten years. Given this amendment, defendant’s fifteen year sentence was illegal. State v. Morris, 131 Idaho 263, 954 P.2d 681 (Ct. App. 1998).

Court Inquiry into Indigency.

Where trial court judge in burglary prosecution expressed concern over defendant’s ability to post bond but inability to retain private counsel and informed defendant that he might subsequently be liable to the county for reimbursement for the legal services of a public defender, such statements did not indicate the prejudice against the defendant because of his use of a public defender so as to constitute an abuse of the court’s sentencing discretion. State v. Bowcutt, 101 Idaho 761, 620 P.2d 795 (1980).

Maximum Penalty Not Imposed.

Imposition of indeterminate and concurrent sentences of 15 years for first degree burglary and 14 years for grand theft were not the maximum possible penalties; they were indeterminate rather than fixed, and concurrent rather than consecutive. State v. Hawkins, 115 Idaho 719, 769 P.2d 596 (Ct. App. 1989), aff’d, 117 Idaho 285, 787 P.2d 271 (1990).

Offense Charged by Information.

An information for burglary which did not charge whether offense was committed in the daytime or the nighttime charged the offense of second degree burglary, and a special demurrer based on the ground that the charge did not state whether offense was committed in the daytime or the nighttime should not have been sustained. State v. Eubanks, 77 Idaho 439, 294 P.2d 273 (1956).

Rehabilitative Treatment Considered.

Where co-defendants convicted of burglary and grand theft, both claimed that the district court abused its discretion by refusing to retain jurisdiction to allow them to obtain rehabilitative treatment for their respective alcohol abuse problems, but where the district court had before it the presentence investigation reports which indicated that both co-defendants had extensive prior criminal records, the court properly concluded that both men would likely fail on any type of probation program and noted the importance of protecting society from them; the court also expressed its concern for both defendants’ alcoholism and drug problems and recommended that both defendants be afforded the benefit of the alcohol and drug abuse counseling programs available in the penitentiary, thereby properly considering the relevant sentencing factors, and indicating no abuse of discretion in refusing to retain jurisdiction. State v. Smith, 119 Idaho 233, 804 P.2d 1364 (Ct. App. 1991).

Sentence.

There is no alternate sentence for burglary, and the punishment fixed by the former section was exclusive. State v. O’Dell, 71 Idaho 64, 225 P.2d 1020 (1950).

Where the sentence imposed upon conviction for burglary is within the statutory limits, defendant has the burden of showing a clear abuse of discretion, which is dependent upon the circumstances of each case. State v. Chapa, 98 Idaho 54, 558 P.2d 83 (1976).

A sentence of five years imposed on a defendant convicted of second-degree burglary was within the statutory limits and there was no abuse of discretion where the court considered various alternatives before imposing such sentence on one who was a first offender in adult status but had a history of juvenile offenses. State v. Harwood, 98 Idaho 793, 572 P.2d 1228 (1977).

Where defendant was sentenced by the district court to a term not to exceed 15 years in the custody of the Idaho board of correction on each of three counts, the sentences to run concurrently, an examination of the defendant’s past history, his personal problems, and the circumstances surrounding the offenses involved do not support the defendant’s contentions that the trial court abused its discretion in imposing the sentence. State v. Tipton, 99 Idaho 670, 587 P.2d 305 (1978). Where, at the time of the sentencing, defendants were 21 and 20 years of age, respectively, and where their presentence reports, and earlier psychological reports portrayed two young men with very low IQs, either or both of the defendants should have been able to benefit, if at all, from what rehabilitative programs were available, within a 14 year period; therefore under these circumstances, to impose a sentence which was more than double the length of their current natural lives was excessive and unduly harsh. State v. Dunnagan, 101 Idaho 125, 609 P.2d 657 (1980).

Sentence of an indeterminate period not to exceed nine years was not excessive or an abuse of discretion where defendant pleaded guilty to five first-degree burglaries and had pleaded guilty to prior petit larceny which had been reduced from a felony, and where presentence report and testimony of witnesses testifying on his behalf were generally unfavorable. State v. Bowcutt, 101 Idaho 761, 620 P.2d 795 (1980).

Where the sentencing court admitted the testimony of the state’s witnesses regarding the value of merchandise taken during burglary for which defendant was convicted, there was no abuse of discretion in sentencing defendant to an indeterminate sentence not to exceed nine years under this section. State v. Bowcutt, 101 Idaho 761, 620 P.2d 795 (1980).

Where in a burglary prosecution the evidence showed that the defendant had committed the crime while on probation from a court in Oregon, that the defendant had committed two misdemeanors while the instant prosecution was pending, and that the defendant, who was 20 years old at the time of sentencing, had a history of violations as a juvenile, his five-year indeterminate sentence for second-degree burglary was not excessive nor unreasonable. State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct. App. 1982).

A 15-year indeterminate sentence imposed upon the defendant following his conviction of first-degree burglary was not excessive, in light of the defendant’s prior criminal record, which included numerous burglaries or other theft-related offenses, and such a sentence could be viewed as reasonably necessary to protect society from the defendant’s established pattern of criminal conduct and to deter others from such conduct. Heck v. State, 103 Idaho 648, 651 P.2d 582 (Ct. App. 1982).

The trial court did not abuse its discretion by imposing a ten-year indeterminate sentence on the defendant following his plea of guilty to first-degree burglary, where the presentence report showed that the defendant had recently been placed on probation in a sister state after serving a sentence in that state’s correctional facility, and that the defendant had a lengthy adult criminal record including several felony convictions. State v. Anderson, 103 Idaho 622, 651 P.2d 556 (Ct. App. 1982).

The court’s imposition of a five-year sentence upon conviction of second-degree burglary did not violate the defendant’s rights under the Eighth and Fourteenth Amendments to the U.S. Constitution where the record showed that prior to his latest conviction the defendant had been convicted of four felonies and, as a persistent violator, the defendant received the minimum sentence available. State v. Angel, 103 Idaho 624, 651 P.2d 558 (Ct. App. 1982).

Where trial court reviewed defendant’s lengthy criminal record, his history of probation violation, the relative frequency of his offenses, his pattern of living and demonstrated disregard for legal authority and the facts and circumstances surrounding the offenses involved and then determined that defendant and society would be best served by incarcerating the defendant for ten-year indeterminate terms on each of two first-degree burglary convictions, the sentences to run concurrently, and to an indeterminate five-year consecutive term for resisting arrest, there was no abuse of the trial court’s sentencing discretion. State v. Coffin, 104 Idaho 543, 661 P.2d 328 (1983). Where the transcript of the sentencing hearing revealed that the trial judge considered the following in fixing the sentence on a second-degree burglary conviction: (1) the presentence report; (2) the defendant’s character and criminal history; (3) the facts and conditions surrounding the offense; (4) the appropriateness of probation; (5) society’s interest in the case; and, (6) arguments by counsel, the defendant failed to show that there was a clear abuse of discretion by the trial court and a five-year determinate sentence on the second-degree burglary conviction was affirmed. State v. Pyne, 105 Idaho 427, 670 P.2d 528 (1983).

The trial court did not abuse its discretion when it sentenced the defendant to a fixed term of 15 years for first-degree burglary where his presentence report disclosed that he was a violent and dangerous individual who was incapable of adjusting to society, and where the court determined that retribution, deterrence, and rehabilitation were not feasible considerations in light of the defendant’s conduct and prior record. State v. Fowler, 105 Idaho 642, 671 P.2d 1105 (Ct. App. 1983).

Indeterminate sentence of ten years in custody of the board of correction for first-degree burglary was not an abuse of discretion where defendant was already on probation for another first-degree burglary conviction, his prior record also included numerous misdemeanors and he admitted a long history of drug abuse and where the judge noted defendant’s prior record and the physical assault on one of the victims and also considered, in mitigation, defendant’s youthful age. State v. Ramsey, 105 Idaho 898, 673 P.2d 1092 (Ct. App. 1983).

Where defendant was found guilty of first-degree burglary and of being a persistent offender, sentence of a determinate term of ten years in prison was well within the confines of the sentencing options available to the trial court and there was no abuse of discretion on the part of the trial judge. State v. Sena, 106 Idaho 25, 674 P.2d 454 (Ct. App. 1983).

Where the defendant upon pleading guilty to one count of burglary was sentenced for an indeterminate term not to exceed four years, the sentence was not unduly harsh nor excessive since the defendant had prior convictions for petit larceny, grand larceny and robbery. State v. Decker, 106 Idaho 434, 680 P.2d 255 (Ct. App. 1984).

Where the defendant pled guilty to five counts of first degree burglary and was sentenced to an indeterminate term of 15 years on each count, in light of the defendant’s prior record and the nature of the present offenses, the trial court did not abuse its discretion in ordering that four of the sentences were to be served concurrently with each other but consecutive to the first sentence imposed. State v. Yarbrough, 106 Idaho 545, 681 P.2d 1020 (Ct. App. 1984).

Where the presentence report showed that the defendant had three prior felony convictions, as well as numerous misdemeanor offenses, the trial court did not abuse its discretion in sentencing him to an indeterminate 15-year sentence upon his conviction for first-degree burglary. State v. Davis, 106 Idaho 563, 682 P.2d 104 (Ct. App. 1984).

Concurrent indeterminate sentences of 20 years for rape, 15 years for burglary and five years for crime against nature were not unduly harsh and were not an abuse of discretion. State v. Mahoney, 107 Idaho 190, 687 P.2d 580 (Ct. App. 1984).

An indeterminate three-year sentence for first-degree burglary was well within the statutory maximum penalty and was not excessive given the nature of the offense and the character of the offender. State v. Chapel, 107 Idaho 193, 687 P.2d 583 (Ct. App. 1984). Where court believed that defendant’s drug dependency would result in future criminal conduct, that protecting society was the most pressing consideration, and that in light of defendant’s conduct and prior record, retribution and deterrence would be furthered by a fixed term of confinement, the court did not abuse its discretion in sentencing defendant to a fixed seven-year sentence for burglary and a five-year indeterminate sentence for grand theft. State v. Heistand, 107 Idaho 218, 687 P.2d 1001 (Ct. App. 1984).

A sentence within the statutory maximum will not be deemed excessive unless the appellant shows that under any reasonable view of the facts the term of confinement is longer than appears necessary at the time of sentencing, to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution; thus, where the defendant had been convicted of two burglaries in Oregon and was involved in five others in that state during the 18 months preceding his convictions in Idaho, and at the time of his arrest in Idaho, was in violation of the terms of probation he was serving for the state of Oregon, and had been involved in ten burglaries within a relatively short period of time prior to his Idaho convictions, the trial court did not abuse its discretion by making the sentences consecutive. State v. Mathis, 107 Idaho 685, 691 P.2d 1300 (Ct. App. 1984).

A ten year indeterminate sentence for first degree burglary was not excessive where defendant had an eighth grade education, a history of alcohol and substance abuse, no job skills, and three prior convictions for first degree burglary and the trial court noted that defendant needed a structured environment for a lengthy period of time. State v. Mason, 107 Idaho 904, 693 P.2d 1106 (Ct. App. 1984).

It is a well-established rule in Idaho that the sentence to be imposed in a particular case is within the discretion of the trial court; a sentence within the statutory maximum will not be disturbed unless a clear abuse of discretion is shown. State v. Keller, 108 Idaho 643, 701 P.2d 263 (Ct. App. 1985).

Where the defendant was party to a burglary where a large amount of money (over $20,000) was stolen from an aged, blind woman on two separate occasions, and told others of the location of the easy money, which resulted in a further theft of over $22,000, some of which was given to the defendant for repayment of a debt, an indeterminate sentence of 14 years for first-degree burglary, to run consecutively with concurrent indeterminate sentences for conspiracy to commit the crime of burglary in the second degree, burglary in the second degree, and preventing the attendance of a witness, was not an abuse of discretion. State v. Keller, 108 Idaho 643, 701 P.2d 263 (Ct. App. 1985).

A sentence of indeterminate 12-year terms for each of two grand theft charges and an indeterminate five-year term for a second-degree burglary conviction, with all sentences to run concurrently, was not excessive, where the measure of confinement was treated as four years, one-third of an indeterminate sentence, and defendant had a long history of alcohol and drug abuse, as well as prior confrontations with the law. State v. Brandt, 109 Idaho 728, 710 P.2d 638 (Ct. App. 1985);, 110 Idaho 341, 715 P.2d 1011 (Ct. App. 1986).

Where the defendant had committed a number of offenses as a juvenile which would have been felonies had he been an adult, he allegedly committed a burglary while incarcerated for evaluation following a conviction for grand theft, and his arrest for the present burglary was only one and one-half months after he was paroled, an indeterminate sentence of five years for second-degree burglary, deemed for purposes of review to be 20 months, was not an abuse of discretion. State v. Jennings, 110 Idaho 334, 715 P.2d 1004 (Ct. App. 1986). Where the presentence report showed that the defendant had been adjudicated under the youth rehabilitation act for burglary, and as an adult, he was convicted of two first-degree burglaries and one second-degree burglary, all prior to the instant offense, a fixed sentence of five years for first-degree burglary was not excessive. State v. Bishop, 110 Idaho 689, 718 P.2d 602 (Ct. App. 1986).

The district judge did not abuse his discretion in sentencing the defendant to a ten-year indeterminate sentence for one of the burglaries, a concurrent ten-year fixed sentence for the battery, and a ten-year indeterminate sentence for the other burglary, where the court considered the criteria of protection of society, deterrence of the defendant and of others, retribution, rehabilitation, the defendant’s background, and the nature of the crimes to which he had pled guilty. State v. Reinke, 111 Idaho 968, 729 P.2d 443 (Ct. App. 1986).

The district court did not abuse its discretion in sentencing the defendant to a five-year indeterminate sentence for escape and a ten-year indeterminate sentence for burglary, where the record showed the judge’s concern that society be protected from the defendant’s criminal activities, and consideration was given to the related objectives of deterrence, rehabilitation and retribution. State v. Briggs, 113 Idaho 71, 741 P.2d 358 (Ct. App. 1987).

A five-year period of confinement, without possibility of parole, was reasonable when viewed in light of the violent nature of the offense, the defendant’s use of a deadly weapon, and the character of the offender, who had previously committed other crimes and responded poorly to parole and probation. State v. Staha, 114 Idaho 119, 753 P.2d 1265 (Ct. App. 1988).

A five-year sentence with a two-year minimum period of confinement for second degree burglary was not excessive where the judge was concerned about the defendant’s prior record and his disruptive behavior in jail. State v. Koch, 116 Idaho 571, 777 P.2d 1244 (Ct. App. 1989).

District judge acted within his discretion in rejecting probation and sentencing defendant convicted of burglary to a three-year term with a one-year minimum period of incarceration where the judge was unconvinced that defendant comprehended the import of a felony conviction, though he had no significant prior criminal record, and where the judge was concerned with defendant’s exhibited recalcitrant attitude, which belied his stated interest in completing his formal education and undergoing counseling. State v. Riley, 119 Idaho 216, 804 P.2d 945 (Ct. App. 1991).

In light of the fact that alcohol treatment had, thus far, been unavailing and that defendant’s criminal behavior existed prior to his indulgence in alcohol, the minimum period of confinement imposed by the defendant’s sentences was not improper and did not constitute an abuse of discretion. State v. Cagle, 126 Idaho 794, 891 P.2d 1054 (Ct. App. 1995).

— Excessive.

Where the record did not show that the defendant could never be safely returned to society on parole, the fixed life sentence for convictions of first degree burglary and sexual abuse of a child was inappropriate. State v. Eubank, 114 Idaho 635, 759 P.2d 926 (Ct. App. 1988).

— Not Excessive.

The defendant’s fixed five-year sentence for theft and a consecutive indeterminate sentence of five years for burglary were not excessive where at the time of sentencing, the defendant was 30-years-old, since the age of 16 he had engaged in a robbery, numerous burglaries, several thefts, and two acts of receiving stolen property, he had served time and had violated parole in another state, and was on parole when he came to this state and committed the instant offenses. State v. Amerson, 113 Idaho 183, 742 P.2d 438 (Ct. App. 1987). A five-year fixed sentence for escape and a 15-year indeterminate sentence for burglary, to be served concurrently with each other but consecutively to the existing rape sentence, were not excessive, where the defendant was 23 when he committed the offenses, and he was an intelligent adult fully responsible for his actions. State v. Maddock, 113 Idaho 182, 742 P.2d 437 (Ct. App. 1987).

Indeterminate five-year sentence imposed upon conviction for first degree burglary where defendant had several prior felony convictions and a criminal record that began when he was 15-years-old was not an abuse of discretion. State v. Samuelson, 114 Idaho 550, 758 P.2d 709 (Ct. App. 1988).

Where the defendant entered guilty pleas to three counts of grand theft, one count of second degree burglary, two counts of petty theft, and one count of escape from a county jail and received a series of indeterminate sentences, some concurrent and some consecutive, aggregating a total of 15 years, his sentences were not excessive, even though he portrayed his part in the criminal proceedings after the escape as that of an unwilling participant, where the sentences were well within the maximum penalties which the judge could have imposed, the judge took into consideration the defendant’s character, including the testimony of witnesses who spoke in his behalf, judge considered the seriousness of the crimes and the impact lesser sentences would have on the defendant and society, and the judge reasoned that although the defendant may have been coerced into escaping, he undertook the escape under his own free will and could have departed from his fellow escapees several times during their flight. State v. Chacon, 114 Idaho 789, 760 P.2d 1205 (Ct. App. 1988).

Defendant’s 10-year sentence for first degree burglary was not excessive and the district court did not abuse its sentencing discretion where the evidence showed that defendant had a prior criminal record including numerous burglary and larceny offenses, had been incarcerated at least five previous times, including substantial prison sentences; at the time of his arrest, defendant was on probation for grand theft and he was then 28 years old, with a longtime history of severe drug and alcohol abuse. State v. Harwood, 115 Idaho 431, 767 P.2d 274 (Ct. App. 1988).

Identical concurrent 14-year sentences with a minimum period of confinement of ten years for attempted robbery and for first degree burglary were within the maximum penalties allowed by statute and were not excessive, even though no one was hurt and no money taken. State v. Ellenwood, 115 Idaho 813, 770 P.2d 822 (Ct. App. 1989).

Imposing a sentence of three years in prison with a minimum one-year confinement period for second-degree burglary, and a concurrent one-year sentence for petit theft for shoplifting $42.00 worth of meat was not excessive where defendant had a lengthy record of shoplifting and other crimes, and defendant had made a commitment to rehabilitation after one of her prior convictions, yet no rehabilitation had occurred. State v. Palacios, 115 Idaho 901, 771 P.2d 919 (Ct. App. 1989).

Imposition of concurrent 14-year sentences with three-year minimum periods of confinement for two forgery counts, and a concurrent five-year sentence with a three-year minimum confinement period for burglary was not excessive where the judge cited defendant’s continuing record of criminal conduct. State v. Alexander, 115 Idaho 897, 771 P.2d 915 (Ct. App. 1989).

A term of 15 years, with a five-year minimum term of confinement, was not excessive with regard to defendant’s conviction for first degree burglary and a life term with a ten-year minimum confinement period was not excessive with regard to his conviction for rape, where defendant entered the victim’s home through a bedroom window, hid in a closet, jumped out wielding a large hunting knife, then proceeded to choke, strike and rape the victim, and where following the rape, he threatened and choked the victim again. State v. Parker, 117 Idaho 527, 789 P.2d 523 (Ct. App. 1990). The court determined that a unified sentence of 11 years, with a three-year minimum period of confinement, should be imposed for defendant’s conviction of first degree burglary since defendant’s criminal record included prior convictions for first degree burglary and he had been released from custody on the last conviction just five months before committing the instant burglary; therefore, not being a fit candidate for probation, the sentence was reasonable. State v. Gorham, 120 Idaho 576, 817 P.2d 1100 (Ct. App. 1991).

Where the court imposed its sentence only after noting that defendant had been convicted of three separate burglaries before sentencing on the instant charge, and since 1988 defendant had been charged with eight burglaries, only five of which had been prosecuted, and he had been released on bail and was awaiting sentencing on another burglary conviction when he committed the instant offense there was no abuse of discretion in the sentence, and no error. State v. Simmons, 120 Idaho 672, 818 P.2d 787 (Ct. App. 1991).

Defendant was sentenced to five years with three years’ minimum confinement on each burglary charge and to eight years with four years’ minimum confinement on each grand theft offense and where defendant had pled guilty to avoid eight additional felony counts and had a lengthy juvenile record, the sentences imposed were reasonable, and the district court did not abuse its sentencing discretion. State v. Rocklitz, 120 Idaho 703, 819 P.2d 121 (Ct. App. 1991).

Defendant’s seven-year sentence with a minimum period of confinement of two years, was well within the maximum punishment of 15 years which could have been imposed for first degree burglary, was not unduly severe, and in the absence of any factual information to support defendant’s motion, the denial of the motion to modify was not an abuse of discretion. State v. McGonigal, 121 Idaho 123, 822 P.2d 1020 (Ct. App. 1991).

Two concurrent unified sentences of 15 years in the custody of the board of correction, with a minimum period of confinement of six years for two counts of first degree burglary, were not unreasonable where the crimes charged were residential burglaries, defendant had a misdemeanor and felony criminal record, which was extensive and included previous convictions for first degree burglary and grand larceny and while incarcerated on these convictions, he was convicted of felony possession of a controlled substance by an inmate and received a concurrent indeterminate two-year sentence. State v. Hoffman, 121 Idaho 131, 823 P.2d 165 (Ct. App. 1991).

A sentence of a minimum period of confinement of eight years for conviction of rape, burglary, kidnapping and the infamous crime against nature was not unreasonable where defendant was on probation at the time he committed the crimes, he violated a restraining order and had a prior criminal record. State v. Lenwai, 122 Idaho 258, 833 P.2d 116 (Ct. App. 1992).

A sentence of a 20-year minimum period of confinement for conviction of lewd conduct with a child under 16, and of a determinate period of 15 years without parole on each of three counts of burglary, was not excessive; psychologist opined that defendant’s prognosis for establishing and maintaining non-offending behavior was poor, defendant admitted to previous conduct for sexual gratification, and his prior record included arrests for possession of controlled substances, probation violation, resisting arrest, driving while under the influence, numerous traffic violations, indecent exposure and public nuisance. State v. Taylor, 122 Idaho 218, 832 P.2d 1153 (Ct. App. 1992). Defendant’s sentences of a three year minimum period of confinement for lewd conduct with a minor child, and of three years minimum confinement for first-degree burglary, to be served concurrently, were not an abuse of discretion; defendant was on probation for grand theft and forgery convictions and presentence investigation revealed prior lewd and lascivious conduct with children. State v. Harris, 122 Idaho 216, 832 P.2d 1151 (Ct. App. 1992).

Defendant’s unified sentence of 14 years with a minimum three-year term of incarceration for burglary, grand theft, and malicious injury to property was not excessive where defendant, after breaking into his employer’s building and stealing a wrecker, led police on a dangerous, high-speed chase that ended only when he crashed the truck into a police blockade. State v. Tucker, 123 Idaho 374, 848 P.2d 432 (Ct. App. 1993).

A five-year unified sentence, with four years’ minimum confinement for second degree burglary, to be served concurrently with a preexisting grand theft sentence was reasonable, where defendant was on probation for the preexisting grand theft charge at the time the present burglary offense was committed. State v. Branning, 123 Idaho 977, 855 P.2d 62 (Ct. App. 1993) (decided prior to 1992 amendment).

Unified sentence of 15 years, with five years minimum confinement for burglary, was reasonable and was not an abuse of the court’s sentencing discretion where defendant released on to the ground of former employer’s building 13,000 gallons of a chemical mixture hoping to “shut down” the company and where defendant had a history of antisocial behavior indicating a willingness to violate the rights of others. State v. Morris, 123 Idaho 989, 855 P.2d 74 (Ct. App. 1993) (decided prior to 1992 amendment).

Imposition of sentence with a minimum period confinement of three years for second degree burglary was not an abuse of court’s discretion considering defendant’s past history of some twenty law violations dating back to 1968, most of which dealt with theft and burglary, and that based on this prior record the court felt that defendant was likely to re-offend. State v. Gomez, 124 Idaho 177, 857 P.2d 656 (1993).

Unified sentence of fifteen-year indeterminate term with nine years minimum confinement for burglary and grand theft was reasonable, where defendant had an extensive past history of burglary and theft. State v. Gawron, 124 Idaho 625, 862 P.2d 317 (Ct. App. 1993).

Where minimum three-year sentences defendant received were well below the maximum 25 years of incarceration the district court could have imposed through consecutive sentences, defendant’s sentences were not grossly disproportionate to the crimes committed and did not constitute cruel and unusual punishment under the Eighth Amendment. Evans v. State, 127 Idaho 662, 904 P.2d 574 (Ct. App. 1995).

— Upheld.

The district judge did not abuse his discretion by imposing two concurrent sentences, consisting of two years fixed and six years indeterminate, without retaining jurisdiction for first degree burglary and grand theft where defendant had recently turned 18 years old at the time of the burglary, and he and his accomplice burglarized the home involved, at night, on more than one occasion, took many miscellaneous items from the home and pawned some of them and “trashed” others and the presentence report indicated that defendant had committed various offenses as a juvenile which were equivalent to first degree burglary, grand theft, probation violation and other crimes. State v. Christensen, 121 Idaho 769, 828 P.2d 332 (Ct. App. 1992). Sentence of five years, with a two-year minimum period of confinement, for second degree burglary, was not an abuse of discretion where burglary charge arose when defendant broke into a woman’s home to watch her while she was taking a bath, defendant later admitted to the police that he had removed four pairs of panties and four brassieres from the residence, he also admitted that he had entered the home on other occasions also, to watch the woman and her daughter while they bathed or while they were asleep, he related that he would sexually stimulate himself while watching the woman, desired to develop a sexual relationship with her, and “was on the verge of committing a rape.” State v. Saxton, 121 Idaho 781, 828 P.2d 344 (Ct. App. 1992).

A fixed sentence of two years followed by an indeterminate term of three years for second degree burglary was not unreasonable where defendant had a prior criminal record, including two felony convictions as an adult, defendant was on parole for an auto theft conviction in California at the time he committed the current offense and the presentence investigator stated that defendant appeared to be a manipulative individual who showed no remorse for his victims, and concluded that he was not a suitable candidate for probation. State v. Sands, 121 Idaho 1023, 829 P.2d 1372 (Ct. App. 1992).

Where defendant’s criminal record spanned ten years, including his juvenile record, a sentence of five years with two years’ fixed for first degree burglary, to be served concurrently with an identical sentence previously imposed in a separate case, and a sentence of ten years with three years’ fixed for battery with the intent to commit rape, to be served consecutively to the sentence on the first degree burglary conviction were reasonable sentences under the circumstances. State v. Acha, 122 Idaho 744, 838 P.2d 873 (Ct. App. 1992).

C.J.S.

§ 18-1404. Night time defined. [Repealed.]

Prior Laws.

Former§ 18-1404, which comprised R.S., R.C., & C.L., § 7017; C.S., § 8403; I.C.A.,§ 17-3404, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972.

Another former§ 18-1404, which comprised I.C.,§ 18-1404, as added by S.L. 1971, ch. 143, § 1 was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Compiler’s Notes.

This section, which comprised I.C.,§ 18-1404, as added by S.L. 1972, ch. 336, § 1, p. 844, was repealed by S.L. 1992, ch. 167, § 1.

Cross References.

Confiscation and disposition of explosives,§ 19-3807.

Prior Laws.

Former§ 18-1405, which comprised S.L. 1909, p. 55, §§ 1, 2; reen. C.L., § 7018; C.S., § 8404; I.C.A.,§ 17-3405, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1405, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Am. Jur. 2d.

§ 18-1406. Possession of burglarious instruments.

Every person having upon him, or in his possession, a picklock, crow, key, bit, or other instrument or tool, with intent feloniously to break or enter into any building or who shall knowingly make or alter, or shall attempt to make or alter any key or other instrument above named, so that the same will fit or open the lock of a building, without being requested so to do by some person having the right to open the same, or who shall make, alter, or repair, any instrument or thing, knowing, or having reason to believe, that it is intended to be used in committing a misdemeanor or felony, is guilty of a misdemeanor. Any of the structures mentioned in this chapter shall be deemed a building within the meaning of this section.

History.

I.C.,§ 18-1406, as added by 1972, ch. 336, § 1, p. 844.

Cross References.

Concealed and deadly weapons,§ 18-3302.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Possession of deadly weapon with intent to commit assault,§ 18-3301.

Prior Laws.

Former§ 18-1406, which comprised Cr. & P. 1864, § 133; R.S., R.C., & C.L., § 7022; C.S., § 8405; I.C.A.,§ 17-3406, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972, and substituted therefor was a section comprising I.C.,§ 18-1406, as added by S.L. 1971, ch. 143, § 1. However, the latter section was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972, and the present section was added by S.L. 1972, ch. 336, § 1 in the same words as the section read prior to its repeal by S.L. 1971, ch. 143, § 5.

Am. Jur. 2d.

C.J.S.

ALR.

§ 18-1407 — 18-1415. Fraudulent business practices. [Repealed.]

Compiler’s Notes.

These sections, which comprised I.C.,§§ 18-1407 to 18-1415, as added by S.L. 1971, ch. 143, § 1, effective January 1, 1972, were repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Prior Laws.

Effective Dates.

Section 2 of S.L. 2005, ch. 151 declared an emergency. Approved March 25, 2005.

Care or Custody.

Church group owes no general duty to prevent harm to child who attended weekend activities, where there was no evidence of a special relationship between the group and the child nor did the group voluntarily assume a duty toward that child. Beers v. Corp. of the President of the Church of Jesus Christ of Latter-Day Saints, 155 Idaho 680, 316 P.3d 92 (2013).

Evidence was insufficient that defendant, an adult, had the care or custody of the victim, a teenager, to sustain a conviction for injury to child, because there was insufficient evidence that a special relationship existed, or that defendant assumed a special duty of care or responsibility. State v. Kraly, 164 Idaho 67, 423 P.3d 1019 (2018).

Cocaine During Pregnancy.

Constitutionality.

The evidence adduced at trial, and the inferences that could justifiably be drawn from that evidence, supported the jury’s conclusion that mother was criminally liable for willfully causing or permitting the infusion of cocaine into her infant son and, thus, was guilty of felony injury to a child. State v. Reyes, 121 Idaho 570, 826 P.2d 919 (Ct. App. 1992). Constitutionality.

This section is not unconstitutionally vague as it gives sufficient notice to parents that they may be subject to criminal prosecution, if they do not protect their children from unwarranted injuries. State v. Peters, 116 Idaho 851, 780 P.2d 602 (Ct. App. 1989).

Construction.

Subsection (1) of this section gives ample notice that conduct which causes or permits a child to suffer unjustifiable physical pain or mental suffering, or wilfully causes the health of a child to be injured, is proscribed conduct. State v. Marek, 112 Idaho 860, 736 P.2d 1314 (1987).

Double Jeopardy.

Defendant’s convictions for injuring a child and for failing to seek medical attention for that injury did not violate double jeopardy, because the crimes were distinct. State v. Sellers, 161 Idaho 469, 387 P.3d 137 (Ct. App. 2016).

Evidence.

In proving the elements of felony injury to a child, the state is required to show that the parent wilfully permitted the child to suffer under circumstances likely to produce great bodily harm, and the introduction of 8 x 10 photographs of the victim’s bruises were relevant and admissible not only to show how the injuries were inflicted, but also to show that defendant could not help but be aware that serious injuries were being inflicted by her boyfriend’s attempts to discipline her daughter. State v. Peters, 116 Idaho 851, 780 P.2d 602 (Ct. App. 1989).

Where defendant was charged with violating this section for injuring a child, the question of defendant’s intent under this section opened the door for introduction of evidence of prior bad acts, where such evidence was logically relevant to the crime charged, and where evidence from approximately nine years earlier was not too remote in time since defendant had been incarcerated during part of that nine years. State v. Hassett, 124 Idaho 357, 859 P.2d 955 (Ct. App. 1993).

In prosecution for felony injury to a child, the district court did not err in refusing to give defendant’s requested jury instruction regarding evidence that an abnormal mental condition prevented him from forming the mental state that is an element of the crime. State v. Patterson, 126 Idaho 227, 880 P.2d 257 (Ct. App. 1994).

Where the evidence against defendant, who was convicted of felony injury to child, was wholly circumstantial, the improper testimony about defendant’s temper and his alleged choking of victim’s mother was not harmless error; this evidence may have led the jury to a guilty verdict based upon an impermissible inference that defendant had a propensity to violence, rather than upon the evidence as to his guilt or innocence of the crime charged. State v. Wood, 126 Idaho 241, 880 P.2d 771 (Ct. App. 1994).

— Hearsay Statements of Child.

Expert Testimony.

In a felony injury to a child case, the court properly admitted the child’s hearsay statements to a neighbor, even though they were not spontaneous. Given the child’s young age, proximity to the physical altercation, and ongoing emotional upset, the statements were the product of the startling events and not the child’s normal reflective thought process. State v. Timmons, 145 Idaho 279, 178 P.3d 644 (Ct. App. 2007). Expert Testimony.

Given the training and background of two expert witnesses, the trial court did not abuse its discretion in allowing them to give expert testimony as to possible causes of the injuries observed. State v. Merwin, 131 Idaho 642, 962 P.2d 1026 (1998).

Federal Crime.

The Indian Major Crimes Act, 18 U.S.C.S. § 1153, did not preempt state prosecution of an enrolled member of the Nez Perce Tribe under this section for felony injury to his infant daughter, an enrolled member of the Thlingit Tribe. State v. Marek, 112 Idaho 860, 736 P.2d 1314 (1987).

Great Bodily Harm.

The existence of a deep pond near outdoor concert spectators when viewed in combination with defendant’s LSD intoxication presented sufficient evidence for the jury to decide if the combination created the likelihood that his child could suffer great bodily harm. State v. Enyeart, 123 Idaho 452, 849 P.2d 125 (Ct. App. 1993).

The circumstances or conditions likely to produce great bodily harm or death need not be “ultrahazardous.” State v. Enyeart, 123 Idaho 452, 849 P.2d 125 (Ct. App. 1993).

Jurisdiction.

Felony injury to a child falls within the criminal jurisdiction granted by Congress under Public Law 280 and accepted by Idaho in 1963 through its enactment of§§ 67-5101 to 67-5103. State v. Marek, 116 Idaho 580, 777 P.2d 1253 (Ct. App. 1989).

Jury Instructions.

Where a prosecution is based on the endangerment clause of subsection (1), the applicable pattern instruction, Idaho Crim. Jury Instructions 1243, standing alone, is inadequate to convey to the jury the requirement that the state prove the defendants’ awareness of the risk of harm, as actual injury or harm is not an element of the crime, and endangerment alone is sufficient for commission of the offense. State v. Halbesleben, 139 Idaho 165, 75 P.3d 219 (Ct. App. 2003).

When a defendant is prosecuted under the endangerment clause of subsection (1), some instruction on mens rea, beyond merely quoting the statute, is required to ensure that the jury understands the scope of the mental element; otherwise, the phrase “willfully causes or permits such child to be placed in such situation that its person or health is endangered” might be interpreted by the jury as proscribing the act of willfully placing a child in a situation that is apparently safe, but that ultimately endangers the child. State v. Halbesleben, 139 Idaho 165, 75 P.3d 219 (Ct. App. 2003).

Defendant’s conviction for involuntary manslaughter for killing her child in the perpetration of an unlawful act was proper pursuant to subsection (1), as extrajudicial statements were corroborated by the fact that the child died while under the exclusive care of defendant. State v. Tiffany, 139 Idaho 909, 88 P.3d 728 (2004), overruled in part, State v. Suriner, 154 Idaho 81, 294 P.3d 1093 (2013).

Lesser Included Offense.

Misdemeanor injury to a child, defined in subsection (2), is properly considered a lesser-included offense of felony injury to a child, described in subsection (1). The statutory language distinguishing the felony offense from the misdemeanor offense is whether or not the defendant’s conduct occurred under circumstances or conditions likely to produce great bodily harm or death. State v. Sellers, 161 Idaho 469, 387 P.3d 137 (Ct. App. 2016).

Parent’s Duty.

Where a parent fails in the duty to protect his or her child and the child is injured as a result, the parent is deemed to be the cause of those injuries and may face criminal sanctions. State v. Peters, 116 Idaho 851, 780 P.2d 602 (Ct. App. 1989).

Generally, a person will not face criminal liability for failing to aid another, however, where there is a parent-child relationship, the parent must come to the aid of the child. State v. Peters, 116 Idaho 851, 780 P.2d 602 (Ct. App. 1989).

Probation.

Where defendant pled guilty to violation of causing injury to children, and his expressed desire to change did not manifest itself into positive steps toward treatment and rehabilitation, district court’s decision to deny probation was proper. State v. Snow, 120 Idaho 277, 815 P.2d 475 (Ct. App. 1991).

Where 34 year old defendant pled guilty to causing injury to a child under subsection (1) of this section, and in the record, the presentence investigation report and the transcript of the sentencing hearing defendant was shown to be a person who had rejected discipline, had poor work habits, had been involved in sexual misconduct prior to being charged in this case, was reported in a psychological evaluation to have a high risk of re-offense, particularly because of his resistance to treatment for his sexual misconduct, and to be evasive and less than honest, and the psychology staff voted to recommend incarceration rather than probation, judge’s denial of probation was not erroneous. State v. Snow, 120 Idaho 277, 815 P.2d 475 (Ct. App. 1991).

While on probation for felony injury to a child, defendant was convicted of 14 counts of grand theft. Her probation was revoked, 10 years were imposed on the felony injury charge, and 5 years consecutive on each of the theft charges. Felony injury sentence was not unduly harsh, but consecutive sentences for each of the theft charges were considered excessive. State v. Whittle, 145 Idaho 49, 175 P.3d 211 (Ct. App. 2007).

As nothing in the language of§ 18-8316 or 19-2524 limits the court’s discretion to issue terms of probation authorized by§ 19-2601(2), the court had the authority to require a psychosexual evaluation as part of a defendant’s probation, following his plea to a misdemeanor charge of injury to a child. State v. Widmyer, 155 Idaho 442, 313 P.3d 770 (Ct. App. 2013).

Sentence.

The court did not abuse its discretion in refusing to suspend a six-month sentence for violation of this section, where the violation constituted neglect resulting in a child’s death, and due consideration was given to the criteria of§ 19-2521 governing the criteria for probation. State v. Staten, 114 Idaho 925, 762 P.2d 838 (Ct. App. 1988).

Where record of defendant who pled guilty to violation to causing injury to a child reflected that defendant’s inappropriate sexual behavior toward children had escalated over time, and there was no evidence that any reformative treatment had ever been pursued and, under the sentence imposed, defendant would be punished and would be forced to contemplate the seriousness of his actions with the end of deterring him in the future, and society would be safe from his predation on society’s most innocent members, sentence of a total of ten years with fixed term of seven years sentence was not excessive. State v. Snow, 120 Idaho 277, 815 P.2d 475 (Ct. App. 1991). A unified sentence of three years fixed followed by an indeterminate period of three years for felony injury to a child was not an abuse of discretion where defendant, a mother of four children and late into her third trimester of pregnancy, habitually used cocaine, her son was born addicted to the drug, and, when asked by the investigator why, on the particular day of the infant’s death, she failed to feed the baby or to pick him up for approximately a ten-hour span of time, defendant/mother “belligerently answered, ‘Well, I just didn’t.’” and defendant’s statements regarding her use of cocaine and the events that transpired surrounding the death of her son varied significantly among the various reports of the investigating officers. State v. Reyes, 121 Idaho 570, 826 P.2d 919 (Ct. App. 1992).

Where defendant was convicted of permitting injury to a child, a unified nine-year sentence, with three years as the minimum period of confinement, was reasonable. State v. Hostetler, 124 Idaho 191, 858 P.2d 331 (Ct. App. 1993).

Unified sentence of twenty years with a ten-year minimum period of confinement for felony injury to a child was not unreasonable, where defendant had been previously found guilty of child abuse of another child, and had a criminal record beginning at age thirteen. State v. Hassett, 124 Idaho 357, 859 P.2d 955 (Ct. App. 1993).

Although the sentencing court’s reliance on information outside the record may have been improper, the procedure used did not rise to the level of a deprivation of due process that would call for examination on appeal despite the lack of an objection below. State v. Newsom, 135 Idaho 89, 14 P.3d 1083 (Ct. App. 2000).

Defendant was properly convicted of felony injury to a child in connection with the death of an infant and was sentenced to life imprisonment with a 25-year minimum term. Newman v. State, 140 Idaho 491, 95 P.3d 642 (Ct. App. 2004).

In trial for injury to a child, trial court did not err in denying defendant’s motion for reduction in unified sentence of 10 years imprisonment with 4 years fixed. Sentence was within statutory limits, and defendant provided no new information to show that it was excessive. State v. Shutz, 143 Idaho 200, 141 P.3d 1069 (2006).

Sentence Upheld.

Plea agreement required the prosecution to recommend a particular sentence, and provided that defendant could argue that the trial court impose a lesser sentence; although defendant argued that the prosecutor’s vigorous argument was inconsistent with the relatively lenient recommendation of sentence, which defendant said disavowed the recommended sentences, the prosecutor made no allusion to a more severe recommendation contained in a presentence investigation report, nor to other factors which would have supported a more severe sentence. State v. Halbesleben, 147 Idaho 161, 206 P.3d 867 (Ct. App. 2009).

Sufficiency of Evidence.

Sufficiency of Indictment.

Testimony from a detective and medical personnel, defendant’s admissions and the periodic reoccurring visits to the hospital followed by a child’s return to the exact same condition, coupled with the increasing severity and devastating effect of the child’s injuries, when viewed in the light most favorable to the state, provided substantial evidence that defendant willfully permitted the child to be placed in a situation where his health was endangered and that defendant knew of the danger; accordingly, evidence supported defendant’s conviction of felony injury to a child. State v. Morales, 146 Idaho 264, 192 P.3d 1088 (Ct. App. 2008). Sufficiency of Indictment.

On appeal of conviction for injury to a child, defendant’s argument that the charging document was jurisdictionally insufficient because it failed to expressly allege the element of willfulness was without merit, since the charging document explicitly stated he was being charged pursuant to the relevant statute. State v. Shutz, 143 Idaho 200, 141 P.3d 1069 (2006).

Willfully Permit.

The term “willfully,” as used in the context of “willfully permit,” has a broader meaning than the standard language of§ 18-101; therefore, the term “willfully,” when describing the mens rea necessary for a conviction under the “willfully permit” prong of this section, requires more than a purpose or willingness to commit the act or make the omission referred to. The state was required to show that defendant had knowledge of the consequences that his son would suffer “unjustifiable physical pain or mental suffering” as a result of his omission. State v. Young, 138 Idaho 370, 64 P.3d 296 (2002).

The “willfulness” element of the endangerment offense, applies not merely to the act of placing a child in a particular situation but also to the endangerment, and this does not require that defendant intend to harm the child; it does require that defendant place the child in a potentially harmful situation with knowledge of the danger. State v. Halbesleben, 139 Idaho 165, 75 P.3d 219 (Ct. App. 2003).

Although this statute does not create vicarious liability, an employer can be found liable for willfully permitting injury to a child even if the employer did not actually harm the child directly. Steed v. Grand Teton Council of the BSA, Inc., 144 Idaho 848, 172 P.3d 1123 (2007).

C.J.S.

ALR.

ALR. — Ignorance or mistake regarding purchaser’s age as affecting criminal offense of selling liquor to minor (or person under specified age). 12 A.L.R.3d 991.

What constitutes violation of enactment prohibiting sale of intoxicating liquor to minor. 89 A.L.R.3d 1256.

Parents’ criminal liability for failure to provide medical attention to their children. 118 A.L.R.5th 253.

Criminal Liability of Nonparent for Failure to Obtain Medical Treatment for Minor Based on Duty of One Acting in Loco Parentis. 97 A.L.R.6th 539.

Prior Laws.

Former§ 18-1502, I.C.,§ 18-1502, as added by S.L. 1972, ch. 336, § 1, p. 844, was repealed by S.L. 1981, ch. 222, § 1.

Amendments.

This section was amended by two 2016 acts which appear to be compatible and have been compiled together.

The 2016 amendment, by ch. 196, added subsection (6).

The 2016 amendment, by ch. 344, added “Except as provided in subsection (e) of this section” at the beginning of subsection (a); in subsection (b), divided the existing provisions into two paragraphs and added the designations, rewrote the first sentence of paragraph (1), which formerly read: “Every person convicted of a misdemeanor under this section shall be punished by a fine of not more than one thousand dollars ($1,000)”, and substituted “Every person convicted of a misdemeanor” for “The second conviction” at the beginning of paragraph (2); added “Upon a misdemeanor conviction” at the beginning of paragraph (d)(1); and added subsection (e).

Effective Dates.

Section 16 of S.L. 1987, ch. 212 declared an emergency. Approved March 31, 1987.

Section 70 of S.L. 1989, ch. 88 as amended by § 1 of S.L. 1990, ch. 45 provided that the act would become effective July 1, 1990.

Section 21 of S.L. 1989, ch. 155 provided that the act should be in full force and effect on and after January 15, 1990.

Constitutionality.

Punishment of persons 18 to 21 years of age for possession of alcohol, including suspension of driver’s license, is not violative of either equal protection or due process rights, since the state has a legitimate interest in the prevention of underage drinking; suspension of a driver’s license is a form of deterrence, and the fact that the suspension is applicable to adults between eighteen and twenty-one does not render it unconstitutional, since they are still subject to restrictions on drinking. State v. Bennett, 142 Idaho 166, 125 P.3d 522 (2005).

Limiting the Right to Travel.

Suspension or revocation of driving privileges does not limit the right to travel, merely the means; suspension of driving privileges may make travel less convenient, but there is no constitutional infringement. State v. Bennett, 142 Idaho 166, 125 P.3d 522 (2005).

Constitutionality.

Because of the lack of a rational relationship between driving or driving privileges and the state’s interests in prohibiting a minor’s non-traffic possession, procurement, or use of an alcoholic beverage, subsection (d) of this section requiring suspension of driving privileges for teenagers convicted of liquor offenses is unconstitutional on equal protection grounds and probably on substantive due process grounds as well.OAG 84-5.

Compiler’s Notes.

This section, which comprised I.C.,§ 18-1502A, as added by S.L. 1981, ch. 222, § 3, p. 412; am. S.L. 1982, ch. 328, § 1, p. 833; am. S.L. 1994, ch. 133, § 2, p. 305, was repealed by S.L. 1997, ch. 278, § 2, effective March 21, 1997. For present law see§ 39-5701 et seq.

Prior Laws.

Former§§ 18-1503 to 18-1505, which comprised R.S., R.C. & C.L. § 6875; I.C.A.,§ 17-2003; S.L. 1943, ch. 41, §§ 1, 2, p. 83; am. S.L. 1963, ch. 38, § 1, p. 186 were repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972. Further§§ 18-1503 to 18-1505 which comprised§§ 18-1503 to 18-1505 as added by S.L. 1971, ch. 143, § 1, were repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

Compiler’s Notes.

These sections, which comprised I.C.,§§ 18-1503 and 18-1504, as added by S.L. 1972, ch. 336, § 1, p. 844, were repealed by S.L. 1997, ch. 278, § 2, effective March 21, 1997. For present comparable law, see§ 39-5701 et seq.

Cross References.

Penalty for misdemeanor when not otherwise provided,§ 18-113.

Prior Laws.

Former§ 18-1505, which comprised R.S., R.C., & C.L., § 6875; C.S., § 8327; I.C.A.,§ 17-2003, was repealed by S.L. 1971, ch. 143, § 5, effective January 1, 1972.

A second former§ 18-1505, which comprised I.C.,§ 18-1505 as added by S.L. 1971, ch. 143, § 1, was repealed by S.L. 1972, ch. 109, § 1, effective April 1, 1972.

A third former§ 18-1505, which comprised I.C.,§ 18-1505, as added by S.L. 1972, ch. 336, § 1, p. 844, was repealed by S.L. 1994, ch. 136, § 2, effective July 1, 1994.

Amendments.

The 2008 amendment, by ch. 209, in paragraph (4)(c), substituted “unjust or improper use” for “misuse” and inserted “financial power of attorney.”

The 2009 amendment, by ch. 71, added “funds, property or resources” at the end of subsection (4)(e).

The 2016 amendment, by ch. 147, substituted “health or safety” for “health and safety” in paragraph (4)(d).

Vulnerable Adult.

State presented sufficient evidence from which the jury could have concluded that the victim, who was impaired physically to the point that she was physically unable to sit up, get into her wheelchair, or roll over, was a vulnerable adult. Her physical impairments rendered her unable to protect herself and, thus, were sufficient to bring her under the protection of this section. State v. Smalley, 164 Idaho 780, 435 P.3d 1100 (2018).

For purposes of defendant’s convictions for sexual abuse of a vulnerable adult, the victim met the definition of vulnerable adult in this statute based on her physical impairments, because she was an elderly centenarian, bedridden, and physically unable to communicate or implement decisions regarding her person. State v. Smalley, 164 Idaho 780, 435 P.3d 1100 (2019).

Idaho Law Review.

Idaho Law Review. — Til it Happens to You: Providing Victims of Sexual Assault with their Own Legal Representation, Erin J. Heuring. 53 Idaho L. Rev. 689 (2017).

Abandonment Found.

Trial court properly convicted defendant of abandoning a vulnerable adult where defendant’s aged and sick mother suffered a stroke at home, but he did not call the paramedics for several days; when he did finally call for medical assistance, his unresponsive mother was transported to the emergency room and doctors found her to be in appalling condition with bed sores and maggots, suffering from dehydration and malnutrition. Investigating officers found the residence to be in grave disrepair, with no running water. State v. Folsom, 139 Idaho 627, 84 P.3d 563 (Ct. App. 2003).

Amendments.

The 2009 amendment, by ch. 100, added subsection (1)(b) and redesignated former subsection (1)(b) as subsection (1)(c); and in subsection (4)(b), deleted “as defined in section 18-1507, Idaho Code, depicting a vulnerable adult engaged in, observing, or being used for explicit sexual conduct” from the end.

The 2012 amendment, by ch. 269, in subsection (2), added paragraph (a), redesignating the subsequent paragraphs, and rewrote paragraph (c), by inserting “image” and substituting “video” for “videotape,” “electronically digitally or chemically produced or reproduced visual material that shows” for “electronically or chemically reproduced visual material that depicts,” and the language beginning “or showing a vulnerable adult” for “as defined in section 18-1507, Idaho Code”; and deleted “as defined in section 18-1507, Idaho Code” following “commercial purpose” in subsection (4).

Constitutionality.

In a case in which defendant was convicted of three counts of sexual abuse of a vulnerable adult, defendant did not and could not demonstrate that the statute under which he was charged violated due process as applied to him because, although defendant contended that his sexual contact with the victim was consensual, the state alleged and was prepared to present evidence that the victim was incapable of consent. State v. Hamlin, 156 Idaho 307, 324 P.3d 1006 (Ct. App. 2014).

Idaho Law Review.

Idaho Law Review. — Til it Happens to You: Providing Victims of Sexual Assault with their Own Legal Representation, Erin J. Heuring. 53 Idaho L. Rev. 689 (2017).

Cross References.

Lewd conduct with minor,§ 18-1508.

Medical examination of victim, cost paid by law enforcement agency,§ 19-5303.

Rape,§ 18-6101.

Prior Laws.

Former§ 18-1506, which comprised S.L. 1957, ch. 197, § 1, p. 407, was repealed by S.L. 1969, ch. 325, § 11.

Amendments.

The 2006 amendment, by ch. 178, substituted “twenty-five (25) years” for “fifteen (15) years” in subsection (5). The 2008 amendment, by ch. 240, added paragraph (1)(d) and subsection (4) and redesignated former subsection (4) as subsection (5).

Effective Dates.

Section 14 of S.L. 2006, ch. 178 declared an emergency. Approved March 24, 2006.

Alibi Defense.

A defendant who has had a close association with a minor over a protracted period of time and who is charged with continuous conduct of abuse will have no practical defense of alibi. State v. Taylor, 118 Idaho 450, 797 P.2d 158 (Ct. App. 1990).

Bail.

Construction.

In a lewd conduct and sexual abuse of a minor case, where the judge based his decision to revoke the bail on: (1) the seriousness of the two charges, (2) the fact that defendant first denied guilt and intent at his arraignment and then admitted the requisite intent, thereby indicating to the judge some degree of denial, and (3) the judge’s “gut feeling” that defendant might flee, the judge did not abuse his discretion by disallowing bail when he accepted defendant’s guilty plea. State v. Sabin, 120 Idaho 780, 820 P.2d 375 (Ct. App. 1991). Construction.

Unfortunately, this section and§ 18-1508 are poorly written and appear to prohibit overlapping kinds of conduct. Sexual contact that amounts to sexual abuse can conceivably fall into the nebulous category of acts which, under§ 18-1508, include but are not limited to the enumerated acts of lewd conduct. State v. Drennon, 126 Idaho 346, 883 P.2d 704 (Ct. App. 1994).

In order to convict a defendant of a sexual abuse charge, the state has to prove that the defendant touches the victim’s breast and that he does so with the intent to gratify the lust, passions, or sexual desire of the defendant or the minor child. The state is required to prove that a defendant’s touching of the victim is sexual, rather than accidental or innocent. State v. Cannady, 137 Idaho 67, 44 P.3d 1122 (2002).

Defenses.

— Consent.

Because the legislature stated it intended to extend the protection offered in this section and§ 18-1508 to minors aged sixteen and seventeen when enacting§ 18-1508A, and because consent is not a defense to§ 18-1508, consent is also not a defense to§ 18-1508A. State v. Oar, 129 Idaho 337, 924 P.2d 599 (1996).

Double Jeopardy.

Defendant was not subjected to double jeopardy by being indicted and convicted of both having sexual contact with a minor and soliciting sexual contact with a minor, since the two counts contemplated proof of completely different elements, touching and solicitation. State v. Hussain, 143 Idaho 175, 139 P.3d 777 (Ct. App. 2006).

Elements.

The material elements for a conviction under paragraph (1)(b) are: 1. a defendant over the age of eighteen, 2. acting to gratify the lust or sexual desire of himself, the child or a third person, and 3. having sexual contact, not amounting to lewd conduct, with a minor. It is not a requirement that the state prove, beyond a reasonable doubt, the exact date of the sexual abuse. State v. Marsh, 141 Idaho 862, 119 P.3d 637 (Ct. App. 2004).

Evidence.

On appeal from a conviction of sexual abuse of a child under the age of sixteen, pursuant to this section, the trial court properly allowed testimony by the victim and her twin sister, the defendant’s stepdaughters, as to numerous incidents of sexual advances towards both girls, where such testimony was limited to incidents occurring in the preceding one-year period, and where such evidence was relevant to show a common scheme and plan, motive, intent, lustful disposition and opportunity to commit the crime charged. State v. Maylett, 108 Idaho 671, 701 P.2d 291 (Ct. App. 1985).

There was substantial evidence to support the defendant’s convictions on two counts of sexual abuse where the evidence showed that he had a trampoline in his backyard which attracted numerous children, that he gave treats and small amounts of money to children, took some of them for drives in his car, on sleds and in his four-wheeler, allowing them to sit on his lap and steer, where he had a large quantity of pornographic magazines, books and catalogues, and where several children testified that he had touched them inappropriately. State v. Byington, 132 Idaho 597, 977 P.2d 211 (Ct. App. 1998), aff’d, 132 Idaho 589, 977 P.2d 203 (1999). Evidence was sufficient to sustain a conviction for sexual abuse of a minor under sixteen years of age where defendant masturbated under a blanket in the child’s view and asked her to get him a tissue that he later explained to her was for his ejaculate. Defendant asked the victim to lift up the blanket on his lap and, when she did, he displayed his erect penis to her; he then reached towards her chest area, asking her to lift her shirt. State v. Harvey, 142 Idaho 527, 129 P.3d 1276 (Ct. App. 2006).

— Age of Defendant.

In prosecution under this section where no direct evidence of defendant’s age was presented, judge’s comments in ruling upon defendant’s motion for acquittal that defendant appeared to be well over eighteen years old led to the conclusion that defendant’s outward appearance constituted some evidence that indicated that he appeared to be well above eighteen years old and in addition where victim testified that perpetrator had gray hair together with his identification of defendant constituted circumstantial evidence that defendant was not a minor and such evidence was sufficient to allow rational jurors to conclude beyond a reasonable doubt that defendant was not less than eighteen years of age. State v. Willard, 129 Idaho 827, 933 P.2d 116 (Ct. App. 1997).

A proper analysis of whether there was sufficient circumstantial evidence of the defendant’s age entailed firstly a determination of whether the record revealed that his physical appearance was such that a rational jury could find that the age element was satisfied solely from observation of the defendant and, if not, whether there was other circumstantial evidence adequate to support the jury’s finding that the defendant was of the requisite age. State v. Espinoza, 133 Idaho 618, 990 P.2d 1229 (Ct. App. 1999).

Where there was nothing in the record to show that the defendant’s physical appearance, standing alone, could sustain a conclusion that he was of age, but where there was testimony by both the defendant and other witnesses that he purchased beer, it was permissible for the jury to take into account the common knowledge of the legal age for the purchase and consumption of alcohol. State v. Espinoza, 133 Idaho 618, 990 P.2d 1229 (Ct. App. 1999).

— Testimony of Prior Victims.

The district court correctly applied the Rules of Evidence when it allowed three women, who were not victims in a case, to testify regarding their accusations of defendant’s sexual misbehavior with them when they were minors, where the trial court weighed the proffered testimony and determined that it would be more helpful to the jury in determining the credibility of the victim’s testimony than it would be prejudicial to defendant. State v. Phillips, 123 Idaho 178, 845 P.2d 1211 (1993).

Because their testimony was relevant to show that defendant had not complied with the terms of probation requiring him to give a comprehensive and accurate sexual history, district court did not err in admitting testimony at probation revocation hearing of minor children who were the subjects of dismissed charges pursuant to Idaho R. Crim. P. 11 plea agreement; order revoking withheld judgment and imposing minimum fixed term of five years for sexual abuse of a minor affirmed. State v. Jones, 129 Idaho 471, 926 P.2d 1318 (Ct. App. 1996).

— Testimony of Victim.

In a criminal action for sexual abuse, in which the victim testified that her uncle came to her bed on three separate occasions, each time fondling either her buttocks or her breast, her testimony was corroborated by her brother, and the defendant’s statements to investigating officers were inconsistent, a rational jury could infer from this evidence that the defendant had sexual contact with his niece or had physical contact with the intent to gratify sexual desire. State v. Parkinson, 128 Idaho 29, 909 P.2d 647 (Ct. App. 1996).

Where in prosecution under this section the victim testified “Fourteen” in answer to the question as to how old he was, there was sufficient direct evidence that victim was a “minor child under the age of sixteen years”. State v. Willard, 129 Idaho 827, 933 P.2d 116 (Ct. App. 1997).

Guilty Plea.

Where defendant in a lewd conduct and sexual abuse of a minor case initially denied the intent element of lewd conduct before the court accepted his plea of guilty, and then after a ten-minute recess, defendant admitted to the intent alleged, the trial court did not err in accepting defendant’s guilty plea. State v. Sabin, 120 Idaho 780, 820 P.2d 375 (Ct. App. 1991).

Because of the grant of immunity accorded defendant pursuant to his Idaho R. Crim. P. 11 plea agreement, defendant was not denied his Fifth Amendment right against self-incrimination by being required in treatment to admit to his sexual activities with the minor children who were victims of the charges that were dismissed pursuant to his Rule 11 plea agreement; order revoking withheld judgment and imposing minimum fixed term of five years for sexual abuse of a minor affirmed. State v. Jones, 129 Idaho 471, 926 P.2d 1318 (Ct. App. 1996).

Included Offenses.

Violation of this section is a lesser included offense when an individual is charged with violation of§ 18-1508. State v. O’Neill, 118 Idaho 244, 796 P.2d 121 (1990).

This section and Wash. Rev. Code § 9A.68.090(1) were substantially equivalent for purposes of the sexual offender registration requirements where the conduct to which petitioner pled guilty in Washington, communicating with a minor for the immoral purposes of sexual misconduct, constituted an offense in Idaho. Doe v. State, 158 Idaho 778, 352 P.3d 500 (2015).

Defendant’s conviction for sexual abuse of a child under 16 years of age, in violation paragraph (1)(b), was void, because the offense was not a lesser-included offense of the originally-charged lewd conduct with a child under 16 years of age; hence, defendant could only be validly charged by resubmitting the case to a grand jury and having it return an amended indictment. State v. Flegel, 151 Idaho 525, 261 P.3d 519 (2011).

Joinder Improper.

In a case in which defendant was convicted of sexual abuse of two children under the age of 16, joinder of the offenses against the two victims was improper as the similarities in the charged conduct and the victims were too unremarkable to imply a common scheme or plan. The evidence alleged by the state did not extend beyond merely showing a criminal propensity to opportunistically abuse young females entrusted to his care. State v. Comer, 162 Idaho 661, 402 P.3d 1114 (Ct. App. 2017).

Jury Instructions.

The district court did not err when it refused to give defendant’s requested jury instruction regarding circumstantial evidence susceptible of two constructions or interpretations, where the state’s case alleging sexual abuse of a minor did not rest entirely upon the circumstantial evidence. State v. Phillips, 123 Idaho 178, 845 P.2d 1211 (1993).

Variance between an information charging sexual abuse of a child under 16 and a jury instruction on the crime’s elements, when the instruction did not state the specific act of sexual abuse alleged in the information, was not fatal because the variance (1) did not leave defendant open to the risk of double jeopardy, or (2) deny defendant fair notice in preparing his defense, since defendant claimed he did no criminal act. State v. Ormesher, 154 Idaho 221, 296 P.3d 427 (Ct. App. 2012).

In a case in which defendant was convicted of sexual abuse of two children under the age of 16, because the risk from improper joinder of the two victims was that the evidence regarding one victim would convince the jury that defendant had a propensity to engage in sexual abuse when evaluating the evidence regarding the other victim or her credibility, the instruction to decide each count separately was insufficient to alleviate the prejudice from improper joinder, and the error was not harmless. State v. Comer, 162 Idaho 661, 402 P.3d 1114 (Ct. App. 2017).

Other Offense.

Where defendant was tried for lewd conduct based on penile penetration, but acquitted, then he was retried on a different charge, which was comprised of different elements and required different facts than the lewd conduct charge, he failed to show that he was retried on the lewd conduct offense. State v. Colwell, 127 Idaho 854, 908 P.2d 156 (Ct. App. 1995).

The crime of sexual abuse of a child under 16 years of age is not a lesser-included offense of the crime of lewd conduct with a child under 16 years of age. State v. Flegel, 151 Idaho 525, 261 P.3d 519 (2011).

Psychological Evaluation.

The judge erred in a case involving lewd conduct and sexual abuse of a minor by not ordering a psychological evaluation as part of the presentence investigation or through retained jurisdiction, because, although a psychological evaluation is not required in every case where the court orders a presentence investigation, in this case, defendant had a solid work history, was a family man, and had no prior criminal record. State v. Sabin, 120 Idaho 780, 820 P.2d 375 (Ct. App. 1991).

Search Warrant.

A magistrate could have properly and reasonably relied on a common-sense reading of a police officer’s affidavit, and had a substantial basis for finding that, contained within the items seized by the police, there was evidence that the defendant made photographic recordings of a minor child with the intent to gratify the lust, passions, or sexual desire of the actor, minor child, or a third party. State v. Weimer, 133 Idaho 442, 988 P.2d 216 (Ct. App. 1999).

Sentence.

Where the record indicated that the defendant had damaged his family, perhaps beyond repair, and the trial court considered the likelihood of rehabilitation, the seriousness of the crime, the defendant’s prior criminal record, and the fact that the defendant had consistently refused to admit the gravity of his offense or even acknowledge that he had sexually abused his three children, a ten-year indeterminate sentence for three counts of sexual abuse of a child under 16 was within the statutory maximum, and there was no abuse of discretion. State v. Snapp, 110 Idaho 269, 715 P.2d 939 (1986). Where, in prosecution for sexual abuse of a child, the presentence report disclosed that the defendant sexually abused his daughter on numerous occasions, that he had a long history of antisocial behavior, including substance and alcohol abuse and indicated the defendant had several prior misdemeanor convictions and a felony conviction for which he received probation, and the defendant continued to deny certain incidents of prior sexual misconduct which had been admitted to the police and to the psychologist, the district judge did not err in finding the defendant to be a continuing danger to society, and five-year fixed term was strict, but not unreasonable, in light of this finding. State v. Beebe, 113 Idaho 977, 751 P.2d 673 (Ct. App. 1988).

Where the record did not show that the defendant could never be safely returned to society on parole, the fixed life sentence for convictions of first degree burglary and sexual abuse of a child was inappropriate. State v. Eubank, 114 Idaho 635, 759 P.2d 926 (Ct. App. 1988).

A sentence of 12 years, with a four-year minimum period of confinement, for a defendant convicted of sexual abuse of a child under 16 years of age, was not excessive where defendant had stated that he touched his stepdaughter’s breasts because he disliked her; the defendant lacked genuine remorse and the district judge felt that the defendant exhibited the tendency to use threats, intimidation, fear and terror to get his way or to push people around. State v. Jones, 118 Idaho 720, 800 P.2d 116 (Ct. App. 1990).

A fixed, five-year sentence on a sexual abuse charge and an indeterminate life sentence with a five-year minimum period of incarceration on a lewd conduct charge, which were to run concurrently, were not excessive nor an abuse of discretion even though the court declined to follow the treatment recommendations of the evaluating psychologists. State v. Bartlett, 118 Idaho 722, 800 P.2d 118 (Ct. App. 1990).

Where 21-year-old defendant who was convicted of two charges of lewd conduct with a minor, and one charge of sexually abusing a child under the age of 16, had a troubled past as evidenced by (1) the fact that at an early age he was exposed to alcohol and drugs in an unstable family, (2) his admission to having a drinking problem, which sometimes resulted in violent behavior, (3) prior charges which included petit larceny, sodomy, and assault, (4) prior unsuccessful sentences of probation and (5) the fact that he had been given several opportunities to attend treatment facilities and all attempts to rehabilitate him had been unsuccessful, sentences of a fixed term of 20 years, plus an indeterminate term of 10 years on each of two charges of lewd conduct with a minor and in addition, a fixed term of ten years plus an indeterminate time term of five years for one charge of sexually abusing a child under the age of 16 were reasonable. State v. Waddoups, 119 Idaho 363, 806 P.2d 456 (Ct. App. 1991).

The court did not abuse its discretion by denying defendant’s Idaho R. Crim. P. 35 motion for reduction of sentence because, although defendant does not have a prior criminal record, he has a history of sexual misconduct with young males. State v. Homeier, 120 Idaho 648, 818 P.2d 352 (Ct. App. 1991).

A unified sentence of ten years with a minimum period of confinement of three years for sexual abuse of a child under the age of 16 was not an abuse of discretion where defendant was charged with engaging in sexual activity with his stepdaughter, age 13, by fondling her breasts while she was sleeping. This case was not defendant’s first involvement with the criminal justice system; in 1980, he purportedly engaged in sexual intercourse with another teen-aged stepdaughter, but formal charges were not filed and defendant had been married six times and five of these marriages were to teenage females. State v. Patterson, 121 Idaho 789, 828 P.2d 352 (Ct. App. 1992). The district court’s imposition of consecutive terms of confinement on defendant, who pled guilty to two counts of sexual abuse of a minor under the age of sixteen did not constitute an excessive sentence. State v. Spencer, 123 Idaho 13, 843 P.2d 163 (Ct. App. 1992).

Two concurrent unified sentences of 15 years, with a minimum period of incarceration of five years for two counts of sexual abuse of a child under 16 was not an abuse of sentencing discretion even though the court acknowledged that defendant had exhibited a long-standing need for some form of sex offender therapy. State v. Keller, 123 Idaho 187, 845 P.2d 1220 (Ct. App. 1993).

A unified sentence of five years’ fixed and five years’ indeterminate for sexual abuse of a child was reasonable; and, the district court’s decision to deny a motion for leniency did not constitute an abuse of discretion where the record revealed that the district court considered the pre-sentence investigation report, the psychological report, and the court record. State v. Lowells, 123 Idaho 171, 845 P.2d 589 (Ct. App. 1993).

Sentence of ten and one-half years, with a minimum term of confinement of three and one-half years for defendant’s sexual abuse of his daughter was affirmed, where defendant admitted to fondling his daughter over a ten year period, and had previously received a withheld judgment for sexual abuse of his step-daughter. State v. Hastings, 124 Idaho 404, 860 P.2d 20 (Ct. App. 1993).

Sentence of eight years’ incarceration with a three year determinate term was not an abuse of discretion where defendant sexually abused nine year old girl by touching and fondling her chest and buttocks, made lewd remarks to victim and exhibited movies depicting nude females in her presence. State v. Beck, 128 Idaho 416, 913 P.2d 1186 (Ct. App. 1996).

Unified life sentence with a minimum term of ten years’ confinement for lewd and lascivious conduct with a minor conviction and a determinate sentence of five years for sexual abuse of a minor conviction were not unreasonable and were affirmed where evidence showed an undue risk that defendant would commit other, similar crimes and lesser sentences would depreciate the seriousness of the crimes. State v. Roberts, 129 Idaho 325, 924 P.2d 226 (Ct. App. 1995). See also State v. Roberts, 129 Idaho 194, 923 P.2d 439 (1996), cert. denied, 519 U.S. 1118, 117 S. Ct. 964, 136 L. Ed. 2d 849 (1997).

Sentence of defendant on plea of guilty to one count of sexual abuse of a minor of ten years, with minimum period of confinement of five years, was not an abuse of sentencing court’s discretion given defendant’s adamant denial of wrongdoing, failure to respond to treatment and high risk to reoffend. State v. Jones, 129 Idaho 471, 926 P.2d 1318 (Ct. App. 1996).

In prosecution for soliciting a minor under the age of sixteen years to participate in sexual acts, sentence of a unified five and one-half years term of incarceration with two-year minimum term where court retained jurisdiction to allow a period for evaluation of defendant’s suitability for probation was not an abuse of discretion where although defendant had no prior criminal record there was evidence that this was not the first instance of defendant’s inappropriate conduct with children. State v. Willard, 129 Idaho 827, 933 P.2d 116 (Ct. App. 1997).

Where defendant entered an Alford plea to sexual abuse of a child under sixteen, the district court ordered a concurrent unified sentence of fifteen years, with a minimum period of confinement of ten years, for sexual abuse of a child under sixteen. The district court did not abuse its discretion by denying his motion for a reduction of sentence. State v. Hillman, 143 Idaho 295, 141 P.3d 1164 (Ct. App. 2006). In a case involving sexual abuse of a child, a seven-year sentence was not excessive, despite evidence of defendant’s military record, his good character, his drinking problem, and the fact that it was his first felony, because defendant knew what he was doing when he broke into a home, crawled in bed with a 13-year-old girl, and had inappropriate sexual contact with her. State v. Bolen, 143 Idaho 437, 146 P.3d 703 (Ct. App. 2006).

Because the pictures of the 10-year-old victim were clearly pornographic and they documented defendant’s physical molestation of the victim, a term of imprisonment of 20 years with five years fixed for sexual abuse did not constitute an abuse of discretion. State v. Overline, 154 Idaho 214, 296 P.3d 420 (Ct. App. 2012).

Trial court did not abuse its discretion in sentencing defendant to 20 years in prison, with 10 years determinate, for each of seven counts, where four lewd conduct counts, a sexual battery count, and a forcible sexual penetration count were each punishable by up to life in prison and a separate sexual abuse count under this section was punishable by up to 25 years in prison. State v. Smith, 159 Idaho 177, 357 P.3d 1285 (Ct. App. 2015).

— Probation Revocation.

Defendant’s Alford plea to one count of sexual abuse of a minor did not exempt him from completing his probation, including compliance with the requirement of full disclosure of his sexual history deemed essential to successful participation in sexual abuse counseling and rehabilitation; district court did not abuse its discretion in finding that he had violated his probation as a basis for revoking defendant’s probation; order revoking withheld judgment and imposing minimum fixed term of five years for sexual abuse of a minor affirmed. State v. Jones, 129 Idaho 471, 926 P.2d 1318 (Ct. App. 1996).

Sexual Abuse.

Where charges of lewd conduct with a minor were dismissed upon conditions set out in an agreement between defendant and victim’s mother and one of the conditions provided that if defendant sexually abused victim again, the state could take legal action “under the Child Protective Act and/or appropriate criminal statutes,” the court properly applied the definition of “sexual abuse” found in§ 16-1602, rather than the definition contained in this section, to the agreement. State v. Claxton, 128 Idaho 782, 918 P.2d 1227 (Ct. App. 1996).

Solicitation.

Defense counsel was ineffective for failing to assert that the evidence was insufficient to support defendant’s convictions for sexual abuse of a minor, where the evidence showed that defendant expressed to the victim a desire only for the victim to take photographs while defendant engaged in a sexual act. The victim did not testify that defendant conveyed any desire that the victim touch himself or touch defendant, nor was there any testimony that defendant made any physical advances or gestures toward the victim that would constitute solicitation under the terms of the statute. Mintun v. State, 144 Idaho 656, 168 P.3d 40 (Ct. App. 2007) (But see 2008 amendment).

Sufficiency of Information.

In child sexual abuse cases involving a continuous course of sexual abuse, and evidence of frequent, secretive offenses over a period of time, credibility, not alibi, is the only issue, and detailed specificity in the information as to the times of the offenses is not required. State v. Taylor, 118 Idaho 450, 797 P.2d 158 (Ct. App. 1990). The state chose to charge defendant with one count of sexual abuse that was alleged to have occurred sometime between March and September, 1988; therefore where there was testimony that the adopted daughter and one or more of her siblings were in defendant’s home frequently on weekend visits during this period of time, the state could not have pleaded the alleged acts with any more particularity, and the court held that the time stated in the information provided defendant with sufficient notice of the charges brought against him. State v. Marks, 120 Idaho 727, 819 P.2d 581 (Ct. App. 1991).

Where state’s evidence showed that adopted daughter had been sexually abused by defendant while she was seven years old, and adopted daughter was seven years old from January 29, 1988, to January 28, 1989, but the information recited that the abuse occurred between March and September, 1988, only the month of February 1988 was excluded from the information, and omission of only the month of February from the information was not a material variance from the proof offered at trial. State v. Marks, 120 Idaho 727, 819 P.2d 581 (Ct. App. 1991).

Where court’s instructions allowed jury to find defendant not guilty of lewd conduct with a minor, but guilty of sexual abuse of a minor based upon proof of facts different from those alleged in the information for the lewd conduct charge, case was vacated and remanded. State v. Colwell, 124 Idaho 560, 861 P.2d 1225 (Ct. App. 1993).

Trial court lacked jurisdiction, where the indictment alleged acts that were made criminal by paragraph (1)(d) of this section, which was enacted in 2008, but the alleged acts occurred in 2001 and 2002. State v. Olin, 153 Idaho 891, 292 P.3d 282 (Ct. App. 2012).

Trial Procedure.

The trial court did not commit error by addressing a child abuse victim by her first name where counsel for defendant used the victim’s first name throughout the proceedings, as did the state. State v. Larsen, 123 Idaho 456, 849 P.2d 129 (Ct. App. 1993).

In a case in which defendant was convicted of sexual abuse of a child under 16 years old, the district court did not err when it denied defendant’s motion for a judgment of acquittal, because the victim told his mother that defendant had placed his mouth on the victim’s sexual organ; a witness testified that defendant had told him that defendant desired to sexually abuse children; and a detective testified that the victim told him during an interview that defendant put his mouth on the victim’s genitals. State v. Folk, 162 Idaho 620, 402 P.3d 1073 (2017).

Amendments.

The 2006 amendment, by ch. 178, rewrote subsection (3), which formerly read: “The penalty upon conviction of a first offense shall be imprisonment in the state prison for a term of not to exceed fifteen (15) years. Upon conviction of a second or subsequent offense, the penalty shall be for a term not more than life imprisonment.”

Effective Dates.

Section 14 of S.L. 2006, ch. 178 declared an emergency. Approved March 24, 2006.