                    IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket Nos. 45117 & 45118

STATE OF IDAHO                                                )
                                                              )
                  Plaintiff-Respondent,                       )          Boise, January 2019 Term
v.                                                            )
                                                              )          Filed: August 27, 2019
JERSSON NEFTALY ROQUE MEDINA                                  )
                                                                         Karel A. Lehrman, Clerk
                                                              )
                  Defendant-Appellant.
                                                              )

         Appeals from the District Court of the Sixth Judicial District of the State of Idaho,
         Bannock County. Stephen S. Dunn, District Judge.

         The district court’s judgment of conviction of trafficking heroin is affirmed. The
         judgment of conviction of conspiracy to violate the Uniform Controlled
         Substances Act is vacated and remanded.

         Nevin, Benjamin, McKay & Bartlett, Boise, for appellant Jersson Neftaly Roque
         Medina. Dennis Benjamin argued.

         Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent State of Idaho.
         Jeffery D. Nye argued.

                                           _____________________
STEGNER, Justice.
         Following a jury trial, Jersson Neftaly Roque Medina (Medina) was convicted of
trafficking heroin and conspiracy to violate the Uniform Controlled Substances Act. 1 The
charges were brought through two separate cases that arose out of the same set of facts. The two
cases were consolidated and tried together. Medina now appeals his convictions, arguing that (1)
fundamental error occurred when he appeared before the jury in chains; (2) fundamental error
occurred when the jury instruction listing possible overt acts made in the furtherance of the

1
  At the outset, we question whether “conspiracy to violate the Uniform Controlled Substances Act” was the
appropriate way to charge Medina under these circumstances. The Uniform Controlled Substances Act is 120 pages
in length in its current iteration. There are fifty-seven sections of the Act, not counting subparts. Medina was found
guilty of violating Idaho Code section 37-2732B(a)(6)(C), which is known as “trafficking in heroin.” Accordingly,
the appropriate code section to charge Medina with conspiracy would have been Idaho Code section 37-2732B(b).
At a minimum, we do not approve of the practice of generically charging someone with “conspiracy to violate the
Uniform Controlled Substances Act” without referring to a specific section of the Idaho Code. However, because
Medina has not challenged the lack of specificity in the charging document, we need not address this issue.

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conspiracy listed numerous acts that did not constitute a proper basis for him to have been found
guilty; and (3) there was insufficient evidence to establish the agreement element of the
conspiracy charge. For the following reasons, we affirm Medina’s judgment of conviction on the
trafficking charge and vacate the judgment of conviction on his conspiracy charge.
                     I. FACTUAL AND PROCEDURAL BACKGROUND
       After a police-initiated heroin buy, both Medina and Sharon Bernal-Valadez (Valadez)
were arrested in Chubbuck, Idaho, on April 14, 2016. The facts are as follows.
       In May of 2015, Logan Joyce (Joyce), a heroin dealer in the Pocatello area, would travel
to Salt Lake City, Utah, to purchase heroin to sell in Idaho. Joyce would then return to his home
in Chubbuck and sell the heroin in Pocatello. Joyce purchased the heroin in Salt Lake City at a
homeless shelter. After doing this for some time, Joyce got to the point where he wanted to sell
more than his then-supplier could provide. At this point, Joyce’s supplier introduced him to
Medina. By late March 2016, Joyce would contact Medina every couple of weeks to purchase
substantial quantities of heroin. Joyce would tell Medina how much money he had, and Medina
would inform him how much heroin Joyce could purchase with that amount of money. Medina
would typically transport the corresponding quantity of heroin from Salt Lake City to Chubbuck,
where Joyce would pay Medina the agreed-upon amount. A typical transaction at that point in
time involved approximately 130 grams of heroin for $8,000. On occasion, Joyce would travel to
Salt Lake City to pick up the heroin.
       On either April 9 or 10 of 2016, Joyce met with Medina at Joyce’s apartment in
Chubbuck to buy heroin. Joyce paid Medina $8,000 for approximately 130 grams of heroin. The
transaction was set up through an exchange of text messages.
       Unbeknownst to Joyce, months prior to this transaction, Detective Lee Edgley (Edgley)
received information that Joyce had been distributing heroin and began investigating Joyce.
During the investigation, undercover law enforcement officers made several controlled purchases
of heroin from Joyce. After the controlled buys, a search warrant was obtained and law
enforcement searched Joyce’s residence on April 12, 2016, a few days after Joyce’s meeting with
Medina. Approximately 153 grams of heroin were seized from Joyce’s apartment. Joyce was
arrested.
       In his post-arrest interview, Joyce showed Edgley a text message conversation
referencing Joyce wiring money to an account in Valadez’s name in order to pay Medina for the

                                               2
heroin. At that time, Joyce also showed Edgley the most current phone number he had to contact
Medina.
        On April 13, 2016, after Joyce was booked into jail and a search warrant for Joyce’s
phone was obtained, Edgley began a text conversation with the number Joyce had told him was
Medina’s. Edgley arranged to purchase 130 grams of heroin, which would be delivered to
“Joyce” the next day for $8,000, with $7,000 paid upfront and an additional $1,000 that would be
paid at a later time. The text from Medina’s number replied that 130 grams of heroin would be
delivered around 5:00 p.m. on April 14, 2016.
        On April 14, 2016, after receiving a text message informing him the delivery was close,
Edgley, along with other detectives, saw a vehicle registered to Valadez pull into Joyce’s
apartment complex. The detectives then surrounded the vehicle and removed Valadez and
Medina. As Medina was getting out of the vehicle, Edgley seized Medina’s phone. He then used
Joyce’s phone to call the number he had been texting to set up the drug deal. Medina’s phone
rang, demonstrating that it had been used, presumably by Medina, on the other end of the drug
deal.
        A canine unit was called and alerted on the car; Medina and Valadez were handcuffed
and placed in the back seat of a marked police car. Unbeknownst to Medina and Valadez, the
police were recording their conversation. While in the police car, Medina asked Valadez if the
officers had found “it” on her. Valadez told Medina to “be quiet.” Medina apparently asked
again if Valadez still had the drugs. Valadez replied, “Yes, it’s here.”
        Eventually, a female officer arrived and took Valadez from the police car. The officer
searched Valadez. That search uncovered approximately 126 grams of heroin (in gross weight
including the packaging). Valadez testified that she had placed the package of heroin in her pants
at the direction of Medina, knowing the package contained drugs.
        On May 19, 2016, a Criminal Information was filed charging Medina with the crime of
trafficking in heroin, a violation of Idaho Code section 37-2732B(a)(6)(C). The information
alleged that Medina possessed, manufactured, delivered, or knowingly possessed at least twenty-
eight grams of heroin. On June 16, 2016, a separate case arose from a second Criminal
Information charging Medina with the crime of conspiracy to violate the Uniform Controlled
Substances Act, pursuant to Idaho Code sections 37-2732 and 18-1701. That Information alleged
that Medina conspired with Valadez, Joyce, or other unnamed people, and agreed to traffic

                                                  3
heroin on or between April 2 and 14, 2016. The two separate charges arose from the same set of
facts.
         After a hearing and upon stipulation of the parties, the district court ordered the two cases
be tried together. A jury found Medina guilty of both charges. On April 20, 2017, the district
judge entered judgments of conviction and sentenced Medina to twenty years in the penitentiary
with fifteen years determinate, on each charge. The sentences were ordered to run concurrently.
Medina timely appealed both convictions.
                                    II.    STANDARD OF REVIEW
         Alleged constitutional errors during trial that are not followed by a contemporaneous
objection “must be reviewed under the fundamental error doctrine.” State v. Bernal, 164 Idaho
190, 193, 427 P.3d 1, 4 (2018) (citing State v. Perry, 150 Idaho 209, 228, 245 P.3d 961, 980
(2010)). (The fundamental error standard is produced below.) This Court reviews issues of law
de novo. State v. Eliasen, 158 Idaho 542, 546, 348 P.3d 157, 161 (2015) (citing State v. Goggin,
157 Idaho 1, 4, 333 P.3d 112, 115 (2014)).
                                              III. ANALYSIS
A.       It was not fundamental error for Medina to appear in chains before the jury.

         At trial, Joyce identified Medina in the courtroom by stating that Medina was “wearing a
white long-sleeve shirt, orange Crocs, chains, and a tan jumpsuit.” (Italics added.) A second
witness, Sergeant Todd Orr (Orr), corroborated Joyce’s identification. Medina concedes that no
objection was made when he appeared before the jury in chains and jail garb 2 and that the
fundamental error test controls. He nevertheless maintains that all three elements of the
fundamental error test have been satisfied and a new trial is required. The State counters that
Medina has failed to prove any elements of the fundamental error test.
         In order to demonstrate fundamental error, a defendant
         bears the burden of persuading the appellate court that the alleged error: (1)
         violates one or more of the defendant’s unwaived constitutional rights; (2) plainly
         exists (without the need for any additional information not contained in the
         appellate record, including information as to whether the failure to object was a
         tactical decision); and (3) was not harmless. If the defendant persuades the


2
  As can be gleaned from the testimony of Joyce and Orr, Medina was also apparently dressed in jail garb during
trial. However, Medina has not challenged this aspect of his trial.

                                                      4
        appellate court that the complained of error satisfies this three-prong inquiry, then
        the appellate court shall vacate and remand.

Perry, 150 Idaho at 228, 245 P.3d at 980 (2010); see also State v. Hall, 163 Idaho 744, 821, 419
P.3d 1042, 1119 (2018), reh’g denied (June 28, 2018) (unobjected-to use of physical restraints
reviewed for fundamental error). Here, Medina cannot satisfy the first prong of the fundamental
error test because there is no evidence that he was compelled by the district court to wear
shackles.
        Medina claims that he had a constitutional right to be free from shackles in front of the
jury and that he did not waive that right. Medina relies on Deck v. Missouri, 544 U.S. 622 (2005)
for the articulation of this right. In response, the State relies on Estelle v. Williams, 425 U.S. 501
(1976) for the proposition that in order to establish constitutional error, the appearance in
shackles had to be compelled. The State thus posits that Medina cannot demonstrate
constitutional error satisfying the first prong of the fundamental error test because his failure to
object to his shackles necessarily undermines his ability to show he was compelled to appear at
trial in shackles. For this conclusion, the State argues the compulsion requirement regarding jail
clothes set out in Estelle should be extended to physical restraints. We hold that the State is
correct in this regard, and evidence demonstrating compulsion to wear shackles must be present
in order to constitute constitutional error.
        In Estelle, the U.S. Supreme Court held that when an attorney failed to object to a
defendant’s jail garb at trial, no constitutional violation occurred. 425 U.S. at 512. The Supreme
Court reasoned that the failure to object to the jail garb “negate[d] the presence of compulsion
necessary to establish a constitutional violation.” Id. at 513.
        In 2006, the U.S. Supreme Court ruled on the related issue of a defendant appearing in
front of a jury in shackles. Deck, 544 U.S. at 629. Deck held, “[T]he Fifth and Fourteenth
Amendments prohibit the use of physical restraints visible to the jury absent a trial court
determination, in the exercise of its discretion, that they are justified by a state interest specific to
a particular trial.” Id. Deck held that an accused has a constitutional right to appear at trial
without visible physical restraints, absent a finding that the visible restraints were necessary. Id.
The Supreme Court found the following as possible justifications for requiring shackles:
courtroom security; peace and decorum of the tribunal; potential escape risk; or similar concerns.
See id. at 628.

                                                   5
        The unqualified language used by the Supreme Court in Deck suggests that any absence
of trial court findings regarding shackles would amount to a constitutional violation—whether or
not an objection was raised by the defendant. Such a reading would both impute a duty on the
trial judge to make findings regarding shackles even without any prompting from defense
counsel and would imply that errors regarding shackles do not require the same compulsion
established in Estelle for jail garb. However, defense counsel in Deck objected to the shackles,
and the trial judge ordered the defendant to wear shackles notwithstanding the objection. Id. at
625. Thus, Deck may have presupposed the compulsion requirement established in Estelle but
did not explicitly state as much. This Court now holds the compulsion requirement from Estelle
applies to shackles, despite the noted difference that “[u]nlike physical restraints, . . . compelling
an accused to wear jail clothing furthers no essential state policy.” Estelle, 425 U.S. at 505.
        First, refusing to apply the compulsion requirement to shackles would impute a duty on
the trial court which has not previously existed. This concern was addressed in Estelle:
        [T]he trial judge [cannot] be faulted for not asking the respondent or his counsel
        whether he was deliberately going to trial in jail clothes. . . . Under our adversary
        system, once a defendant has the assistance of counsel the vast array of trial
        decisions, strategic and tactical, which must be made before and during trial rests
        with the accused and his attorney. Any other approach would rewrite the duties of
        trial judges and counsel in our legal system.

Id. at 512.
        Estelle’s articulation of the trial court’s role and the determination to apply the
compulsion requirement to shackles comports with this Court’s established rule that trial courts
make appropriate findings regarding restraints. This Court has stated that “the trial judge must, in
fulfilling his duty to preside over the trial, decide the question [of whether a defendant must
remain in restraints] for himself.” State v. Crawford, 99 Idaho 87, 94, 577 P.2d 1135, 1142
(1978)). This Court recognized in Crawford the duty of the trial court is not one to sua sponte
inquire when a defendant appears before the jury in jail garb or restraints. The trial court’s duty
is to “decide the question” regarding a defendant’s appearing in restraints before a jury. The
essence of deciding a “question” is for the court to be presented with an issue to resolve—
through a defense objection or motion in that regard.
        Additionally, extending the compulsion requirement to shackles furthers this Court’s
policy to “reinforce the judicial preference for contemporaneous objections before the trial
court[,]” which “prevents the litigant from sandbagging the court . . . .” Perry, 150 Idaho at 220,
                                                6
224, 245 P.3d at 972, 976. To hold otherwise would provide an incentive to defendants to remain
silent about visible shackles in the hope that the trial court neglects to make sua sponte findings,
and, in the event of an unfavorable outcome, allege error on appeal. Accordingly, we hold that
failing to object to visible shackles undermines the required compulsion to amount to a
constitutional violation; such a holding “encourage[s] the making of timely objections that could
result in the error being prevented or the harm being alleviated.” Id. at 226, 245 P.3d at 978.
       Importantly, none of this means that a district court cannot, or should not, address the
issue of shackles in its courtroom. Given that the use of shackles is inherently prejudicial, trial
courts should take an active role in ensuring a substantively and procedurally fair proceeding.
Accordingly, this Court encourages judges to address, sua sponte if necessary, any issues relating
to clothing or shackles in the presence of the State and defendant on the record prior to the jury
being empanelled and obviously outside the jury’s presence.
       As a result, Medina’s failure to object to his visible shackles “is sufficient to negate the
presence of compulsion necessary to establish a constitutional violation” and prevents him from
meeting his burden regarding the first prong of the fundamental error test. Estelle, 425 U.S. at
513.
B.     Fundamental error occurred by including multiple legally insufficient overt acts in
       Jury Instruction No. 17.
        Medina contends that Jury Instruction No. 17, regarding his conspiracy conviction,
included multiple erroneous overt acts, which amounted to fundamental error. Medina concedes
the instruction was not objected to; thus, review of the instruction is subject to the fundamental
error test. The State argues that any error in the instruction was harmless.
       “When a defendant fails to object to a jury instruction, [this Court] . . . review[s] the jury
instruction for fundamental error” under Perry. State v. Adamcik, 152 Idaho 445, 472, 272 P.3d
417, 444 (2012) (citations omitted). However, the initial inquiry is whether the jury instruction
was erroneous at all. State v. Skunkcap, 157 Idaho 221, 227, 335 P.3d 561, 567 (2014); State v.
Carver, 155 Idaho 489, 493, 314 P.3d 171, 175 (2013). This Court reviews “the trial court’s jury
instructions de novo to determine ‘whether, when considered as a whole, they fairly and
adequately present the issues and state the applicable law.’” State v. Dunlap, 155 Idaho 345, 364,
313 P.3d 1, 20 (2013) (quoting Adamcik, 152 Idaho at 472, 272 P.3d at 444). “Whether the
instruction was erroneous will depend upon how a reasonable juror would have interpreted the

                                                  7
instruction.” Skunkcap, 157 Idaho at 227–28, 335 P.3d at 567–68 (citing State v. Hairston, 133
Idaho 496, 515, 988 P.2d 1170, 1189 (1999)).
        “[A] conspiracy is established upon proof beyond a reasonable doubt that there is an
agreement between two or more individuals to accomplish an illegal objective, coupled with one
or more overt acts in the furtherance of the illegal purpose . . . .” State v. Smith, 161 Idaho 782,
787, 391 P.3d 1252, 1257 (2017) (alteration in original) (quoting State v. Garcia, 102 Idaho 378,
384, 630 P.2d 665, 671 (1981)), reh’g denied (Apr. 20, 2017). Thus, an overt act must be (1)
committed by one of the coconspirators (i.e., someone who is a party to the agreement) and (2)
the act must be done in furtherance of the illegal purpose. Id.
       The jury instruction in question required the jury to find the following:
       [That] one of the parties to the agreement performed at least one of the following
       acts:
       1. On or about April 12, 2016, a search warrant was executed at apartment at 4170
           Hawthorne in Chubbuck, Idaho belonging to JOYCE. During the search law
           enforcement seized approximately 157 grams of Heroin, JOYCE’s cell phone
           and numerous other items.
       2. JOYCE provided detectives with information, including the phone number
           (716-773-9155) of the person (“Jeffrey”) from whom JOYCE had previously
           purchased Heroin.
       3. JOYCE’s phone contained a text message from JOYCE to [Valadez] indicating
           JOYCE had wired $3,000 to [Valadez] on or about April 2, 2016.
       4. On or about April 13-14, 2016, detectives used JOYCE’s phone to contact the
           above phone number and arranged to purchase 130 grams of Heroin for $8,000
           from “Jeffrey.”
       5. On or about April 14, 2016, [Valadez] drove a vehicle to 4170 Hawthorne in
           Chubbuck, Idaho and parked.
       6. MEDINA, aka “Jeffrey,” was a passenger in the vehicle.
       7. MEDINA’s cell phone was removed from his hands; a detective called the
           above number and the phone seized from MEDINA rang with the detective’s
           phone number visible on the screen.
       8. MEDINA told detectives he was there to collect $1,000 from JOYCE and that
           he and [Valadez] bring Heroin to Pocatello from Utah.
       9. [Valadez] was searched and approximately 127 grams of Heroin [sic] were
           discovered on her person.
       [ ] and such act was done for the purpose of carrying out the agreement.

Medina contends that none of the listed acts, for one reason or another, support a guilty verdict
of conspiracy. The State admitted that “at least some of these acts should not have been included
in the jury instructions[;]” nevertheless, the State argues that even if some of the acts were


                                                 8
invalid, Medina cannot carry his burden under the fundamental error analysis and show that the
error was harmful.
        The State admits act 1 is invalid as it was undertaken by law enforcement, not by a
coconspirator. Act 2 is also invalid as the act of Joyce cooperating with police officers cannot be
said to be in furtherance of an illegal purpose. Act 4 describes actions of only law enforcement
and is therefore also invalid. Act 7 describes acts of law enforcement and contains no act in
furtherance of the illegal purpose. Act 8, apart from being a possible misstatement of facts,3
describes Medina making statements to detectives. A statement to police officers is not an act in
furtherance of an illegal purpose. As such, a clear majority of the purported “overt acts,” acts 1,
2, 4, 7, and 8 should never have been included in the jury instruction. The problem with the jury
instruction does not end here.
        Act 6 is incomplete and cryptic. It states in its entirety: “MEDINA, aka Jeffrey, was a
passenger in the vehicle.” It is difficult to ascribe any meaning to it, unless it is read in
conjunction with act 5. This undermines the instruction’s directive that only one act will suffice
in order to convict Medina of conspiracy. If an act must be read in conjunction with another
alleged overt act to give it meaning, it is incomplete.
        Act 9 is likewise tenuous. It states Valadez “was searched and approximately 127 grams
of Heroin [sic] were discovered on her person.” Although it might be inferred from this language
that Valadez possessed the heroin in furtherance of the illegal purpose, Medina correctly points
out that act 9 describes an act by law enforcement which cannot be done in furtherance of the
illegal purpose. At a minimum, act 9 is poorly worded. The instruction is inartful and opens the
door to confusion by allowing the jury to conclude a search by law enforcement constituted an
overt act.
        Act 3 is also not the model of clarity. It states: “JOYCE’s phone contained a text message
from JOYCE to [Valadez] indicating JOYCE had wired $3,000 to [Valadez] on or about April 2,
2016.” Confusion arises because it is not clear what overt act is alleged. Is it the sending of the
text or the wiring of the $3,000? At a minimum, act 3 is unclear.



3
 Act 8 claims that Medina told detectives he was in Pocatello to collect money from Joyce and that he and Valadez
would bring heroin to Pocatello. Although Medina may have admitted to being in Pocatello to pick up money from
Joyce, the transcript shows that Medina denied the existence of drugs when speaking to the police.

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       Finally, that leaves act 5, which alleges, “[o]n or about April 14, 2016, [Valadez] drove a
vehicle to 4170 Hawthorne in Chubbuck, Idaho and parked.” Even assuming acts 3 and 5 contain
sufficient allegations of overt acts, they are buried within multiple improper acts that may very
well have misled the jury or been relied on by the jury to establish the required overt act element.
       Jury instructions, when considered as a whole, are meant to fairly and adequately present
the issues and state the applicable law. See Dunlap, 155 Idaho at 364, 313 P.3d at 20. Even
viewing the instruction in this context, we are unpersuaded that Instruction No. 17, as a whole,
either correctly stated the law or fairly presented the overt acts that would provide adequate
support for Medina’s conspiracy conviction. At best, Instruction No. 17 grossly misstated the
law, and, at worst, it invited the jury to convict Medina of conspiracy by relying on multiple
legally insufficient and inappropriate overt acts.
       An erroneous jury instruction violates due process if it omits a contested element of a
crime or if it relieves the State of the burden of proving every element of the crime beyond a
reasonable doubt. State v. Draper, 151 Idaho 576, 588, 261 P.3d 853, 865 (2011). “[T]he State
must prove every element of the offense, and a jury instruction violates due process if it fails to
give effect to that requirement.” Id. (quoting State v. Anderson, 144 Idaho 743, 749, 170 P.3d
886, 892 (2007)).
       Including multiple legally insufficient overt acts in the way that occurred here allowed
the jury to establish guilt based on acts lacking the requisite components—that the overt act was
committed by one of the coconspirators and that the overt act was done in furtherance of the
illegal purpose. As a result, Instruction No. 17 “relieved the State of its burden of proving every
element of the offense” and amounted to constitutional error; thus, the first prong of the
fundamental error test has been satisfied. See id. at 590, 261 P.3d at 867 (finding “[t]he failure to
clearly require the jury to find that an overt act was committed for the purpose of advancing the
conspiracy relieved the state of its burden”).
       The second prong of the fundamental error test requires the error to be clear and obvious
from the record and that the record discloses that the failure to object was clearly not a strategic
or tactical decision. Perry, 150 Idaho at 226, 245 P.3d at 978. The language of the instruction




                                                 10
demonstrates the clear error. Regarding the latter requirement of the second prong, 4 the nature of
the error, as determined from the record, demonstrates that the failure to object to the instruction
could not have been a strategic decision. As discussed, the erroneous instruction allowed a jury
to convict Medina without finding the required elements of an overt act of a coconspirator. There
is no conceivable strategy in which failing to object to this instruction might have aided
Medina’s defense when the instruction, in effect, made it vastly easier for the jury to find Medina
guilty of conspiracy. Accordingly, the second prong of the fundamental error test has been
satisfied.
         Medina’s final burden under the fundamental error test requires him to show the error
was not harmless. Perry, 150 Idaho at 226, 245 P.3d at 978. Accordingly, Medina must show “a
reasonable      possibility    that    the    error    ‘affected     the    outcome       of   the    trial   court
proceedings.’” Bernal, 164 Idaho at 193, 427 P.3d at 4 (quoting Perry, 150 Idaho at 226, 245
P.3d at 978).
         This Court has articulated certain guidelines regarding how erroneous jury instructions
pertain to the prejudice prong of the fundamental error test. First, “[a]n erroneous instruction will
not constitute reversible error unless the instructions as a whole misled the jury or prejudiced a
party.” State v. Mann, 162 Idaho 36, 43, 394 P.3d 79, 86 (2017) (quoting Draper, 151 Idaho at
588, 261 P.3d at 865). “An erroneous instruction is prejudicial when it could have affected or did
affect the outcome of the trial.” Garcia v. Windley, 144 Idaho 539, 543, 164 P.3d 819, 823
(2007) (quoted in citation sentence with approval in Draper, 151 Idaho at 591, 261 P.3d at 868).
         Given the manifest errors in Instruction No. 17, it was, as a whole, misleading to the jury.
The jury here likely “read the instruction to omit the required element that an overt act occurred
in the furtherance of the conspiracy[,]” as it cannot be said that the jury in fact relied on proper
overt acts. See Draper, 151 Idaho at 591, 261 P.3d at 868. Consequently, there is a reasonable
possibility that the jury relied on the erroneous overt acts. Perry, 150 Idaho at 226, 245 P.3d at
978. The error thus affected the outcome of Medina’s conspiracy charge by making a guilty
verdict much more easily reached. Initially, the third prong of the fundamental error test has been


4
  This Court has recently addressed the second and third prongs of the fundamental error test in State v. Miller, 165
Idaho 115, 443 P.3d 129 (2019), reh’g denied (June 12, 2019). However, Miller was issued after the parties in this
case argued on appeal. Thus, they did not have the opportunity to conform their arguments to Miller’s articulation of
the standard. As such, this opinion will apply the fundamental error test as established before Miller.

                                                        11
demonstrated as the instruction was harmful; however, this Court has noted certain
circumstances where an erroneous instruction will not be found harmful. These circumstances
are not applicable here.
       First, “[w]here the jury instructions, taken as a whole, correctly state the law and are not
inconsistent, . . . it will be assumed that the jury gave due consideration to the whole charge
contained in all the instructions and was not mislead by any isolated portion thereof.” Draper,
151 Idaho at 590, 261 P.3d at 867 (alteration in original) (quoting State v. Enno, 119 Idaho 392,
405, 807 P.2d 610, 623 (1991)). Although only the overt act element has been found erroneous,
it is not an “isolated portion” of the instruction. A positive overt act was required in order for
Medina to be found guilty of conspiracy. Instruction No. 17 was so pervasively incorrect, it can
only be understood to have misled the jury. Moreover, the State points to no other instruction
that may have remedied the error or correctly instructed the jury on overt acts. See id. at 591, 261
P.3d at 868.
       Finally, we have previously held that a partially erroneous instruction omitting an
element of a crime may be found harmless if “the evidence supporting a finding on the omitted
element is overwhelming and uncontroverted, so that no rational jury could have found that the
state failed to prove that element . . . .” Id. (quoting Perry, 150 Idaho at 224, 245 P.3d at 976).
This case is distinguishable from that circumstance because, here, an element was not merely
omitted; it was substituted by the inclusion of inaccurate overt acts which drastically reduced the
State’s burden and paved the way to an unconstitutional conviction. As a result, the error cannot
be said to be harmless and is therefore fundamental, necessitating reversal of Medina’s
conspiracy conviction.
       Because we are vacating the judgment of conviction on the conspiracy charge based on
the erroneous jury instruction, it is unnecessary to address Medina’s assertion that there was not
substantial and competent evidence to support a jury’s finding of an agreement among
coconspirators.
                                         IV. CONCLUSION
       Medina’s conviction for conspiracy to violate the Uniform Controlled Substances Act is
vacated. Medina’s conviction for trafficking heroin is affirmed. The case is remanded to the
district court for proceedings consistent with this opinion.
       Chief Justice BURDICK, Justices BRODY, BEVAN and MOELLER CONCUR.

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