               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42777

STATE OF IDAHO,                                  ) 2016 Opinion No. 28
                                                 )
       Plaintiff-Respondent,                     ) Filed: April 14, 2016
                                                 )
v.                                               ) Stephen W. Kenyon, Clerk
                                                 )
TOBY GLENN WEATHERLY,                            )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Second Judicial District, State of Idaho, Nez
       Perce County. Hon. Jay P. Gaskill, District Judge.

       Judgment of conviction, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Toby Glenn Weatherly appeals from his judgment of conviction, arguing that his rights
under the Double Jeopardy Clause of the Idaho Constitution and the Fifth Amendment to the
United States Constitution were violated when a jury found him guilty of grand theft and
criminal possession of a financial transaction card.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       The State charged Weatherly with one count of grand theft and one count of criminal
possession of a financial transaction card, with a sentencing enhancement alleging Weatherly
was a persistent violator of the law. A jury found Weatherly guilty of both counts and that
Weatherly had two prior felonies.       For each count, the district court imposed a five-year
sentence, with one year determinate, to be served concurrently. Weatherly timely appeals from
the judgment of conviction.

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                                                 II.
                                   STANDARD OF REVIEW
         Whether a defendant’s prosecution complies with the constitutional protection against
being placed in jeopardy twice is a question of law over which we exercise free review. State v.
Santana, 135 Idaho 58, 63, 14 P.3d 378, 383 (Ct. App. 2000). The Double Jeopardy Clause of
the United States Constitution provides that no person shall “be subject for the same offense to
be twice put in jeopardy of life or limb.” The clause affords a defendant three basic protections.
It protects against a second prosecution for the same offense after acquittal, a second prosecution
for the same offense after conviction, and multiple criminal punishments for the same offense.
Schiro v. Farley, 510 U.S. 222, 229 (1994); State v. McKeeth, 136 Idaho 619, 622, 38 P.3d 1275,
1278 (Ct. App. 2001).
                                                III.
                                            ANALYSIS
         Weatherly argues that his rights under the Double Jeopardy Clause of the Idaho and
United States Constitutions were violated because possession of a financial transaction card is a
lesser included offense of grand theft. Weatherly did not raise the issue of double jeopardy
below.
         Generally, issues not raised below may not be considered for the first time on appeal.
State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). Idaho decisional law, however,
has long allowed appellate courts to consider a claim of error to which no objection was made
below if the issue presented rises to the level of fundamental error. See State v. Field, 144 Idaho
559, 571, 165 P.3d 273, 285 (2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262
(1971). In State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court
abandoned the definitions it had previously utilized to describe what may constitute fundamental
error. The Perry Court held that an appellate court should reverse an unobjected-to error when
the defendant persuades the court that the alleged error:       (1) violates one or more of the
defendant’s unwaived constitutional rights; (2) is clear or obvious without the need for reference
to any additional information not contained in the appellate record; and (3) affected the outcome
of the trial proceedings. Id. at 226, 245 P.3d at 978.
         There are two theories under which a particular offense may be determined to be a lesser
included offense of a charged offense: the statutory theory and the pleading theory. See State v.

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Flegel, 151 Idaho 525, 527-529, 261 P.3d 519, 521-523 (2011). We hold that Weatherly has
failed to persuade the Court that the alleged error violates an unwaived constitutional right
because possession of a financial transaction card is not a lesser included offense of grand theft
under either the statutory theory or the pleading theory.
A.     Possession of a Financial Transaction Card Is Not a Lesser Included Offense of
       Grand Theft Under the Statutory Theory
       Under the statutory theory, “one offense is not considered a lesser included of another
unless it is necessarily so under the statutory definition of the crime.” State v. Thompson, 101
Idaho 430, 433, 614 P.2d 970, 973 (1980). The test originated in Blockburger v. United States,
284 U.S. 299 (1932). “An offense will be deemed to be a lesser included offense of another,
greater offense, if all the elements required to sustain a conviction of the lesser included offense
are included within the elements needed to sustain a conviction of the greater offense.” State v.
McCormick, 100 Idaho 111, 114, 594 P.2d 149, 152 (1979).
       A person commits grand theft when he (1) knowingly takes or exercises unauthorized
control over, or makes an unauthorized transfer of an interest in (2) a financial transaction card
(3) of another person, (4) with the intent of depriving the owner thereof. I.C. §§ 18-2403(3),
18‑2407(1)(b)(3). A person commits criminal possession of a financial transaction card when he
(1) acquires (2) a financial transaction card (3) without the consent of a card holder or the issuer
(4) with the intent to defraud. I.C. § 18-3125(1). As illustrated below, the intent element of each
crime is different.

 Grand Theft                                        Possession of Financial Transaction Card
 I.C. §§ 18-2403(3) and 18-2407(1)(b)(3)            I.C. § 18-3125(1)
 1. The defendant knowingly took or exercised       1. The defendant acquires,
 unauthorized control over or made an               2. a financial transaction card,
 unauthorized transfer of an interest in,
                                                    3. without the consent of the card holder or
 2. a financial transaction card,                   issuer,
 3. of another person,                              4. with the intent to defraud.
 4. with the intent of depriving the owner
 thereof.

       To prove grand theft, the State must prove the defendant intended to deprive the owner of
a financial transaction card. To prove criminal possession of a financial transaction card, the
State must prove the defendant intended to defraud. The intent to defraud is not limited to the


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owner and could apply to the owner, the issuer of the card, or the subsequent merchant or entity
from whom the card was redeemed. Therefore, because each crime requires a different intent
element, possession of a financial transaction card is not a lesser included offense of grand theft
under the statutory theory.
B.     Possession of a Financial Transaction Card Is Not a Lesser Included Offense of
       Grand Theft Under the Pleading Theory
       Under the pleading theory adopted by the Idaho Supreme Court, a lesser included offense
is one “alleged in the information as a means or element of the commission of the higher
offense.” State v. McKinney, 153 Idaho 837, 841, 291 P.3d 1036, 1040 (2013), citing Thompson,
101 Idaho at 434, 614 P.2d at 974. The pleading theory does not look at evidence adduced at
trial, only the language of the charging document. See McKinney, 101 Idaho at 841, 291 P.3d
1040. Because the pleading theory relies on an examination of the charging information, it
generally provides a broader definition of greater and lesser included offenses than a statutory
theory approach. Thompson, 101 Idaho at 433-34, 614 P.2d at 973-74.
       The charging document reads as follows:
                                            COUNT I
               GRAND THEFT, I.C. § 18-2403(3) and 18-2407(1)(b)(3), a felony
       That the defendant, TOBY G. WEATHERLY, on or about the 21st day of
       December 2013, in the County of Nez Perce, State of Idaho, did knowingly
       exercise unauthorized control over and/or make an unauthorized transfer of
       interest in the property of another person with the intent of depriving the owner
       thereof, to wit: by using a financial transaction card belonging to NICHOLAS
       and/or JENNA WEATHERLY.
                                            COUNT II
           CRIMINAL POSSESSION OF A FINANCIAL TRANSACTION CARD,
         FINANCIAL TRANSACTION NUMBER AND FTC FORGERY DEVICES,
                            I.C. § 18-3125(1), a felony
       That the defendant, TOBY G. WEATHERLY, on, about or between 21st day of
       December 2013 and 23rd day of December 2013, in the County of Nez Perce,
       State of Idaho, did acquire and/or possess a financial transaction card, to-wit: a
       Visa Cash Card, without the consent of the cardholder and/or issuer, with the
       intent to use the financial transaction card to defraud the cardholder and/or issuer.
       Weatherly has not persuaded this Court that criminal possession of a financial transaction
card is a lesser included offense of grand theft in this case. In Count I, the State offers two
potential means of committing grand theft: unauthorized control and/or unauthorized transfer.


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Criminal possession of a financial transaction card may be a means or element by which grand
theft by unauthorized control is committed. However, it may not be a means or element by
which grand theft by unauthorized transfer is committed, because one would not necessarily be
required to criminally possess a financial transaction card to commit theft by an unauthorized
transfer.   Put another way, one can be in legal possession of a financial transaction card
belonging to another, but still commit theft by making an unauthorized transfer. Thus, as
charged in this case, it is not clear from the face of the information that the criminal possession
of a financial transaction card was the means or element of the commission of the grand theft
charge. Therefore, Weatherly has not shown the alleged error violated one or more of his
unwaived constitutional rights.
                                               IV.
                                        CONCLUSION
        Because Weatherly cannot establish the first prong of the Perry analysis, he has failed to
establish a basis for this Court to reverse an unobjected-to error. Therefore, the district court’s
judgment of conviction is affirmed.
        Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




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