                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                      Docket No. 40803-2013

STATE OF IDAHO,                                    )
                                                   )         Boise, December 2014 Term
       Plaintiff-Respondent,                       )
                                                   )         2015 Opinion No. 10
v.                                                 )
                                                   )         Filed: January 26, 2015
DAVID AARON KNUTSEN,                               )
                                                   )         Stephen W. Kenyon, Clerk
       Defendant-Appellant.                        )
                                                   )

       Appeal from the District Court of the Fifth Judicial District of the State of Idaho,
       in and for Twin Falls County. Hon. G. Richard Bevan, District Judge.

       The judgment of the district court is affirmed.

       Ben McGreevy, Deputy State Appellate Public Defender, Boise, argued for appellant.

       Kenneth K. Jorgensen, Deputy Attorney General, Boise, argued for respondent.



EISMANN, Justice.
       This is an appeal out of Twin Falls County from a jury verdict finding the defendant
guilty of four counts of sexual abuse of a vulnerable adult. The defendant contends that the term
of the grand jury that indicted him had already expired, that the statute defining the crimes is
unconstitutional, that there was insufficient evidence to support the jury’s verdict, and that his
conviction should be for only one count because his conduct constituted one continuous act. We
affirm the judgment of the district court.


                                                I.
                                       Factual Background.

       The victim entered a psychiatric hospital on January 30, 2009, and David Aaron Knutsen
(Defendant), who was thirty-one years old, was already at the facility. The victim, who was a
twenty-two-year-old woman with a full-scale IQ of 72, had been admitted to the hospital because
she was depressed and suicidal. Defendant had checked himself into the hospital for thirty-six
hours to have his medication adjusted.
       When the victim was admitted into the hospital, she was given hospital scrubs to wear.
She went to the TV room to watch television, and Defendant was in the room. After a few
minutes she left and returned to her room because the way Defendant was staring at her made her
feel uncomfortable. She ate supper in the cafeteria and returned there sometime around 7:00
p.m. for an 8:00 p.m. group session.
       There was a hallway between the cafeteria and the nursing station, but the cafeteria had
an open door and windows so that most of it could be observed from the nursing station. The
victim sat down at a table with her back to the windows, and Defendant came over and sat across
the table from her, facing the windows. He asked her if she was still a virgin, and she answered
that she was. He asked her if she was wearing a bra, and she said she was not. He commented
about how large her breasts were and asked how big her nipples were. She showed him with her
fingers because she was scared and did not know what to do. He asked if he could feel her
breasts and moved closer to her. Although she knew that was wrong, she said “Yes” because she
was scared. He then felt her breast under her shirt. He was not wearing shoes, and he used his
foot to push her legs apart and rub her genitals with his foot. He asked if he could see her
vagina, and she testified that she said “Yes” because she was scared out of her mind. While the
victim was at the table, Defendant was constantly watching the nursing station through the
windows and looking around watching for anyone who may see them. He then took her to
another part of the cafeteria near the soda fountain, which could not be seen from the nursing
station. She was using a walker to ambulate because she had previously fallen on the ice and
broken her ankle. When they arrived at that part of the cafeteria, she was standing with her back
to the wall, and he was standing in front of her with the walker between them. He asked her to
pull down her pants so that he could see her vagina. She complied, and he then said to pull them
up because he was afraid someone would walk in. Near that area, there was a glass door with
windows on each side, which provided access to exercise equipment and a small park. After she
pulled her pants up, he touched her between the legs and touched her breasts. He also had her
touch his penis on the outside of his pants. As the victim was leaving, he told her to wait. When
she stopped and turned around, he touched her breasts and vagina again and then told her he was
going to “jack off.” The victim testified that she did not know what that meant. Defendant left


                                               2
the facility the next day, and after he left the victim reported what had happened to one of the
nurses.
          On March 25, 2009, a grand jury returned an indictment charging Defendant with four
counts of the felony crime of Sexual Abuse of a Vulnerable Adult. The alleged criminal conduct
was: touching the victim’s genitals with his foot, touching her genitals with his hand, touching
her breasts with his hand(s), and having the victim touch his genitals with her hand. He was tried
for the offenses before a jury on May 5 and 6, 2010, and it returned a verdict finding him guilty
of all four charges. For each of the offenses, the district court sentenced Defendant to twenty-
five years in the custody of the Idaho Board of Correction, with eighteen years fixed and the
remaining seven years indeterminate. The court ordered that the four sentences be served
concurrently, but that they be served consecutively to Defendant’s prior sentence for lewd
conduct with his seven or eight-year-old cousin. Defendant timely appealed.


                                            II.
             Had the Grand Jury’s Term Expired Before Returning the Indictment?

          Article I, § 8, of the Idaho Constitution provides that “[n]o person shall be held to answer
for any felony or criminal offense of any grade, unless on presentment or indictment of a grand
jury or on information of the public prosecutor.” In this case, Defendant was prosecuted based
upon an indictment. He contends that the grand jury’s term had expired before it returned the
indictment. An indictment issued by a grand jury whose term has expired is void. State v. Lute,
150 Idaho 837, 840, 252 P.3d 1255, 1258 (2011). If the indictment is void, the trial court does
not acquire subject-matter jurisdiction over the crimes charged in the indictment. Id. at 841, 252
P.3d at 1259.
          Upon the motion of the prosecuting attorney, the district court issued an order on
November 13, 2008, for the impaneling of a grand jury. The order stated that “once selected and
convened, the grand jury shall serve a term of four months until discharged by the Court, and
during its term shall meet from time to time as necessary to conduct its business.”               The
prospective jurors appeared on November 14, 2008, and the court informed them that “[t]his
term of the grand jury is set for approximately four months”; that they would normally be
meeting every other Wednesday; and that “the schedule for your four-month term and the dates
when you should be available” were specific days commencing on December 3, 2008, and


                                                   3
ending on March 25, 2009. Sixteen jurors were then selected and impaneled as the grand jury.
The grand jury met for the first time to inquire into a public offense on December 3, 2008, and it
returned the indictment against Defendant on March 25, 2009.
       Defendant was arrested on March 27, 2009, and he appeared in court to be arraigned on
the indictment on March 30, 2009. The matter was continued at Defendant’s request to July 20,
2009, at which time he entered pleas of not guilty to all four charges. On August 21, 2009,
Defendant moved to dismiss the indictment on various grounds including that the grand jury’s
term had expired before it issued the indictment. The district court held that it had not. The
court ruled that the order stated that the grand jury’s term would be four months “once selected
and convened”; that the grand jury was first convened on December 3, 2008; and that the four-
month period from that date had not expired by March 25, 2009.
       On appeal, Defendant contends that the grand jury was convened on November 14, 2008,
the day the jurors were impaneled, not on December 3, 2008, the day it first met in session to
perform its statutory duty as a grand jury of “inquir[ing] into all public offenses committed or
triable within the county.” I.C. § 19-1101.
       The maximum period of time that a grand jury may serve is set by Rule 6.8 of the Idaho
Criminal Rules, which provides, “A grand jury shall serve until discharged by the court but no
grand jury shall serve more than six (6) months unless specifically ordered by the court which
summoned the grand jury.” The district court had the authority to establish the term of the grand
jury within the confines of Rule 6.8. It ordered that the grand jury’s term would be four months
“once selected and convened.” The court interpreted its order to mean that the grand jury term
commenced the first time the grand jury convened to inquire into a public offense (December 3,
2008), which was consistent with what it informed the grand jury regarding the schedule of the
grand jury sessions. The district court did not err in holding that the grand jury’s term had not
expired when it indicted Defendant on March 25, 2009.


                                           III.
      Did the District Court Err in Holding that Idaho Code Section 18-1505B Is Not
                                Unconstitutionally Vague?

       Prior to the trial, Defendant filed a motion to dismiss the indictment on the ground that
Idaho Code section 18-1505B was unconstitutionally vague, both on its face and as applied to



                                                4
him.    He contended that the statute failed to give adequate notice to people of ordinary
intelligence of the conduct that was proscribed. The district court denied the motion, holding
that the statute was plain and unambiguous and that its plain meaning provides fair notice to
citizens as to the conduct proscribed.
        “[T]he void-for-vagueness doctrine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”
Kolender v. Lawson, 461 U.S. 352, 357 (1983). “[T]he more important aspect of vagueness
doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement
that a legislature establish minimal guidelines to govern law enforcement.’ ” Id. at 358.
        The statute criminalizes certain sexual contact with a vulnerable adult. There is no
contention that the type of conduct criminalized under the statute is vague. The contention is
that the definition of a “vulnerable adult” is vague. The statute defines a “vulnerable adult” as a
person eighteen years of age or older “who is unable to protect himself from abuse, neglect or
exploitation due to physical or mental impairment which affects the person’s judgment or
behavior to the extent that he lacks sufficient understanding or capacity to make or communicate
or implement decisions regarding his person, funds, property or resources.”                          I.C. §§ 18-
1505B(2)(d), 18-1505. 1
        Defendant contends that the definition of a vulnerable adult is too indefinite to support a
criminal charge, but he does not point to any portion of the statute that is allegedly vague or
lacks sufficient minimal guidelines to govern law enforcement. Instead, he argues that there are
some circumstances where the statute should not be applied. A criminal defendant that engages
in conduct that is clearly proscribed by the statute cannot complain that it may be vague as
applied to the conduct of others. Holder v. Humanitarian Law Project, 561 U.S. 1, 19-20
(2010). A more stringent standard does apply if the statute interferes with the right of free
speech or of association. Id. at 19. Defendant does not contend that the statute interferes with
the right of free speech, but he does contend that it interferes with the right of association. As




1
  In defining the crime, Idaho Code section 18-1505B(2)(d) incorporates the definition of vulnerable adult set forth
in Idaho Code section 18-1505.



                                                         5
will be addressed below in connection with his argument that the statute is overbroad, it does not
interfere with the right of association.
        In Anderson v. Morrow, 371 F.3d 1027 (9th Cir. 2004), the court addressed whether an
Oregon rape statute was unconstitutionally vague. The statute declared sexual intercourse with
another person to be the felony crime of rape if “[t]he victim is incapable of consent by reason of
mental defect.” Or. Rev. Stat. § 163.375(1)(d). The court rejected the argument that the statute
was not sufficiently precise to provide comprehensible notice, stating, “The sex crimes statute is
clear on what it prohibits: sexual intercourse with a person ‘incapable of consent by reason of
mental defect.’ ” 371 F.3d at 1032. The court also stated that the statute “gives law enforcement
officials clear standards on conduct that must be prosecuted.” Id.
        Section 18-1505B(2)(d) provides greater guidelines as to what conduct is prohibited than
did the Oregon statute in Anderson. With respect to this case, a vulnerable adult is someone
“who is unable to protect himself from abuse . . . due to . . . mental impairment.” In addition, the
mental impairment must “affect[] the person’s judgment or behavior to the extent that he lacks
sufficient understanding or capacity to make or communicate or implement decisions regarding
his person, funds, property or resources.” The statute gives adequate notice of the prohibited
conduct and sufficient guidelines to govern law enforcement. The district court did not err in
denying the motion to dismiss on the ground that the statute was unconstitutionally vague on its
face.
        Defendant contends that the statute is vague as applied to him because he could be held
liable under the statute even though he had a reasonable belief that the victim did not meet the
definition of a vulnerable adult. Defendant did not testify at the trial, so there is no evidence that
he was in fact mistaken as to the mental competency of the victim. Therefore, there is nothing to
support the assertion that he reasonably believed that the victim was not a vulnerable adult.


                                              IV.
        Did the District Court Err in Holding that Idaho Code Section 18-1505B Is Not
                                Unconstitutionally Overbroad?

        In his pretrial motion, Defendant also asserted that Idaho Code section 18-1505B was
overbroad because it restricted adults “from carrying out their constitutionally guaranteed right to
engage in sexual activity.” The district court rejected that challenge, stating that “there is no



                                                  6
constitutional right to have sexual relations with a person who is incapable of providing
consent.” Defendant argues that the statute is overbroad because it interferes with his right of
association.
        The Supreme Court has held that the right of association includes two aspects: (a)
protecting the freedom to enter into certain intimate human relationships against undue intrusion
by the state, and (b) protecting the right to associate for the purpose of engaging in conduct
protected by the First Amendment to the Constitution. Roberts v. United States Jaycees, 468
U.S. 609, 617-18 (1984). Relying upon Lawrence v. Texas, 539 U.S. 558 (2003), Defendant
argues that Idaho Code section 18-1505B is overbroad because it infringes upon his right to have
consensual sex with an adult. Lawrence does not prohibit criminalizing the sexual conduct in
this case.
        The petitioners in Lawrence had been engaging in homosexual sexual conduct in the
private residence of one of them, which was the apartment where he resided. Id. at 562-63.
Justice Kennedy commenced the majority opinion by stating, “Liberty protects the person from
unwarranted government intrusions into a dwelling or other private places.”            Id. at 562
(emphasis added). He characterized the issue in the case as follows, “We conclude the case
should be resolved by determining whether the petitioners were free as adults to engage in the
private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth
Amendment to the Constitution.” Id. at 564 (emphasis added). In his analysis, Justice Kennedy
stated, “The case does involve two adults who, with full and mutual consent from each other,
engaged in sexual practices common to a homosexual lifestyle. . . . The State cannot demean
their existence or control their destiny by making their private sexual conduct a crime.” Id. at
578 (emphases added). Justice Kennedy concluded his analysis by stating, “The Texas statute
furthers no legitimate state interest which can justify its intrusion into the personal and private
life of the individual.” Id. (emphasis added).
        Justice Kennedy expressly stated that the case “does not involve persons who might be
injured or coerced or who are situated in relationships where consent might not easily be refused.
It does not involve public conduct . . . .” Id. The present case does not involve private conduct
between two adults, with full and mutual consent from each other, who engaged in sexual
practices common to a homosexual lifestyle.




                                                 7
       First, Defendant’s conduct did not occur in a dwelling or other private place. It occurred
in the hospital cafeteria, part of which could be viewed from the nursing station by looking
through an open door or the windows next to the door. While sexually abusing the victim when
she was sitting at the table, Defendant was constantly watching the nursing station and looking
around to avoid being caught. Then Defendant had the victim go to a part of the cafeteria near
the pop machines that could not be viewed from the nursing station, near the door to the exercise
equipment and a small park. After having the victim pull down her pants to expose her vagina,
he told her to quickly pull them back up because he was afraid someone would come in that
door. In addition, the nursing staff walks the halls and checks the patients every fifteen minutes.
       Second, the sexual conduct in this case was not between two adults with full and mutual
consent from each other. Although the victim was an adult, as a matter of law she was unable to
consent to the sexual conduct. Even though the word “consent” is not in the statute, it is a
legislative determination that vulnerable adults as defined in the statute are unable to consent to
the sexual conduct described in the statute. For example, even though the word “consent” does
not appear in the applicable statutory language, this Court has held that the victim of what is
commonly called statutory rape cannot consent to the sexual intercourse, State v. Herr, 97 Idaho
783, 787, 554 P.2d 961, 965 (1976); that consent is not a defense to the crime of lewd conduct
with a child under sixteen, State v. Schwartzmiller, 107 Idaho 89, 94, 685 P.2d 830, 835 (1984);
and that consent is not a defense to the crime of sexual battery of a child sixteen or seventeen
years of age, State v. Oar, 129 Idaho 337, 340, 924 P.2d 599, 602 (1996). The basis of those
holdings was that such children are, as a matter of law, unable to consent to the proscribed sexual
conduct. See Herr, 97 Idaho at 787, 554 P.2d at 965 (“[W]e agree with the trial court and hold
that since a child under sixteen cannot as a matter of law give her consent, fornication cannot be
a necessarily included offense of lewd conduct with a minor under sixteen.”). In enacting Idaho
Code section 18-1505B, the legislature defined a specific group of adults who, as a matter of
law, are unable to consent to the proscribed sexual conduct.
       Finally, Idaho Code section 18-1505B is not lacking a legitimate state interest. The State
has a legitimate interest of protecting from sexual abuse those adults who are unable to protect
themselves from abuse, neglect, or exploitation due to physical or mental impairment.
       The Supreme Court in Lawrence simply wanted to legalize “sexual practices common to
a homosexual lifestyle” that occurred in private between consenting homosexuals. It did not


                                                 8
create a fundamental right to engage in sexual conduct. As stated by the Seventh Circuit Court
of Appeals:
               Given, therefore, the specific focus in Lawrence on homosexual sodomy,
       the absence from the Court’s opinion of its own “established method” for
       resolving a claim that a particular practice implicates a fundamental liberty
       interest, and the absence of strict scrutiny review, we conclude that Lawrence did
       not announce a fundamental right of adults to engage in all forms of private
       consensual sexual conduct.

Muth v. Frank, 412 F.3d 808, 818 (7th Cir. 2005). Likewise, the Eleventh Circuit Court of
Appeals has held that “the [Supreme] Court has never indicated that the mere fact that an activity
is sexual and private entitles it to protection as a fundamental right.” Williams v. Attorney
General of Ala., 378 F.3d 1232, 1236 (11th Cir. 2004). As that court also held, “[A]lthough
Lawrence clearly established the unconstitutionality of criminal prohibitions on consensual adult
sodomy, ‘it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce
a new fundamental right’—whether to homosexual sodomy specifically or, more broadly, to all
forms of sexual intimacy.” Id.
       Idaho Code section 18-1505B does not proscribe any constitutionally protected conduct.
The district court did not err in holding that “there is no constitutional right to have sexual
relations with a person who is incapable of providing consent.”


                                          V.
       Does Idaho Code Section 18-1505B Violate the Equal Protection Clause of the
                                     Constitution?

       Defendant contends that Idaho Code section 18-1505B violates the Equal Protection
Clause of the Constitution because sexual conduct between married couples is exempted from its
operation. There is nothing in the statute so stating. Therefore, there is no basis for his equal
protection challenge.


                                             VI.
    Did the District Court Err in Instructing the Jury that Consent Was Not a Defense?

       During the jury instruction conference, Defendant objected to any instruction having to
do with the victim being unable to give informed consent. The district court instructed the jury
that “it is not a defense to the crime of Sexual Abuse of a Vulnerable Adult that [the victim] may

                                                9
have consented to the alleged conduct.” As stated above, as a matter of law the victim was
unable to consent to the sexual contact. Therefore, the district court did not err in giving this
instruction.


                                          VII.
         Was the Jury Verdict Supported by Substantial and Competent Evidence?

       Defendant contends that the jury verdict was not supported by substantial and competent
evidence. Specifically, he argues that “the State failed to demonstrate that [the victim] was
unable to protect herself from abuse because of her mental impairment.” In support of this
contention, Defendant states that the State’s expert, a clinical psychologist, “testified that given
[the victim’s] intellectual capacity, if she was educated about sexual interaction, she had the
cognitive ability to understand”; that “[t]he doctor thought with her mental health issues, she
would be capable of making decisions regarding her welfare”; that the victim “is not mentally
retarded”; and that she “successfully graduated Minico High School” where she received Bs and
Cs in the more difficult classes, recognizing that her grades were above average in some of the
regular course work.
       “This Court will not overturn a judgment of conviction, entered upon a jury verdict,
where there is substantial evidence upon which a reasonable trier of fact could have found that
the prosecution sustained its burden of proving the essential elements of a crime beyond a
reasonable doubt.” State v. Sheahan, 139 Idaho 267, 285, 77 P.3d 956, 974 (2003). “We view
the evidence in the light most favorable to the prosecution, and we do not substitute our
judgment for that of the jury regarding the credibility of the witnesses, the weight of the
evidence, and the reasonable inferences to be drawn from the evidence.” State v. Oliver, 144
Idaho 722, 724, 170 P.3d 387, 389 (2007). Evidence is substantial if a reasonable jury could
have relied upon it in determining that the allegation was proved beyond a reasonable doubt.
State v. Anderson, 145 Idaho 99, 103, 175 P.3d 788, 792 (2008).
       The victim testified that she graduated from high school taking “[s]pecial ed resources
class[es],” which “were, like, not, like, normal classes. They were for people that had learning
disabilities.” She stated that she tried to go to a community college after high school, “but I
couldn’t because I didn’t understand the—the work.” She stated that she had been living with




                                                10
her mother before going to the psychiatric hospital, but that by the time of the trial she was living
in an assisted living facility and her mother had been appointed her guardian.
       The clinical psychologist testified that she conducted a psychological assessment of the
victim in 2008 when she was previously an inpatient at the psychiatric hospital. She said that the
victim’s full-scale intelligence quotient was 72, which placed her in the borderline intellectual
functioning range which goes from 70 to 79. That IQ meant that the victim’s intellectual
functioning was “below average, below low average, and is right on the edge of someone in the
extremely low range.” The psychologist further testified that the victim would have difficulty
with decision-making capacity because her processing speed (how well a person can scan a
situation and then make a decision about it) was very low, which would impact how quickly she
can make decisions. The psychologist stated that the victim was slower in reasoning and that
making a decision where there is a lot of information or a lot of things to consider would be quite
challenging for her. With respect to the victim’s ability to make sound decisions as to her
welfare, the psychologist testified that it would depend upon the complexity of the decision. In
terms of minor issues, the victim could decide what to eat, get her hand off a hot stove, and get
out of the way of a car, but in terms of more complex situations it would be more challenging for
her. According to the psychologist, it would be challenging for the victim to have to make a
decision on the spot because her processing speed would make it difficult for her to weigh the
benefits and the consequences of the decision at the time.
       In addition, the jury saw the victim testify and could weigh how quickly she was able to
answer questions, something not shown by a transcript. Defendant has failed to show that there
was not substantial and competent evidence for the jury to conclude that the victim was a
vulnerable adult.


                                         VIII.
  Did Sentencing Defendant for All Four Offenses Constitute Double Punishment for the
                                     Same Crime?

       Defendant contends that sentencing him for all four crimes constituted double
punishment for the same crime in violation of the Idaho Constitution. He did not object in the
trial court to being sentenced for all four offenses. Therefore, he must show that the alleged
error “(1) violates one or more of the defendant’s unwaived constitutional rights; (2) plainly



                                                 11
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.” State v. Perry, 150 Idaho 209, 228, 245 P.3d 961, 980 (2010).
       Article I, § 13, of the Idaho Constitution provides that “[n]o person shall be twice put in
jeopardy for the same offense.” In contending that this provision was violated, Defendant relies
upon this Court’s decision in State v. Major, 111 Idaho 410, 725 P.2d 115 (1986). In Major, the
issue was whether Major, an enrolled member in the Nez Perce Tribe, committed one or two
crimes by possessing stolen property both on the reservation and off the reservation. Id. at 413,
725 P.2d at 118. In resolving that issue, the Court held that the test was “were the items
possessed as a part of ‘a single incident or pursuant to a common scheme or plan reflecting a
single, continuing [criminal] impulse or intent . . . .’ ” Id. at 414, 725 P.2d at 119. Applying that
test, the Court concluded “that Major committed but one offense of possession of stolen
property.” Id.
       In adopting its test, the Major Court began its analysis by stating, “Whether a course of
criminal conduct should be divided or aggregated depends on whether or not the conduct
constituted ‘separate, distinct and independent crimes.’ ” Id. (quoting from State v. Hall, 86
Idaho 63, 69, 383 P.2d 602, 606 (1963)). In Hall, the defendant was acquitted of conspiring with
two others to commit a robbery in which the intended victim was killed. 86 Idaho at 64, 383
P.2d at 604. He was later charged with, and convicted of, committing the robbery. Id. at 66-67,
383 P.2d at 604.     On appeal, he contended that his conviction violated the constitutional
prohibition against double jeopardy in the Idaho Constitution, Article I, § 13. The Hall Court
held that it did not violate the constitution because murder and robbery are separate and distinct
crimes. “Neither is the ‘same offense’ as the other, within the constitutional provision against
double jeopardy, and a prosecution for one does not bar a subsequent prosecution for the other
on that ground.” Id. at 69, 383 P.2d at 606.
       The Hall Court then addressed whether the prosecution for the robbery violated Idaho
Code section 18-301, “[o]ur statutory provision against double jeopardy.” Id. at 74, 383 P.2d at
609. That statute provided:
               An act or omission which is made punishable in different ways by
       different provisions of this code may be punished under either of such provisions,
       but in no case can it be punished under more than one; an acquittal or conviction



                                                 12
           and sentence under either one bars a prosecution for the same act or omission
           under any other.

Id. at 74-75, 383 P.2d at 609. The Court noted that it had held that “this statute enlarges the
scope of the constitutional provision against double jeopardy in that it prohibits double
punishment ‘for the same act or omission’ and is not limited to the ‘same offense.’ ” Id. at 75,
383 P.2d at 609. The Court then evaluated the facts and determined that the robbery and the
murder did not arise out of the same act or omission because the robbery had been completed
before the murder was committed. Id at 75, 383 P.2d at 609-10. Thus, the statement by the
Court in Major that “Whether a course of criminal conduct should be divided or aggregated
depends on whether or not the conduct constituted ‘separate, distinct and independent crimes’ ”
was based upon interpreting Idaho Code section 18-301, not upon the double jeopardy clause in
the Idaho Constitution.
           The next statement by the Major Court was, “This inquiry requires consideration of the
circumstances of the conduct, see State v. McCormick, 100 Idaho 111, 115-16, 594 P.2d 149,
153-54 (1979) . . . .” 111 Idaho at 414, 725 P.2d at 119. The issue in McCormick was whether
burglary, by entering the victim’s residence during the nighttime with the intent to commit rape,
and the ensuing rape “arose out of the same criminal conduct.” 100 Idaho at 114, 594 P.2d at
152. The McCormick Court addressed whether they were the same offense under Idaho Code
section 18-301. Id. at 115, 594 P.2d at 153. It noted that courts in California had followed the
rule that “one committing burglary and another felony or larceny in one transaction was guilty of
two crimes and could be sentenced for both,” but in People v. McFarland 2 and Neal v. State of
California 3 the California Supreme Court disapproved of the prior cases and “interpreted its
statute, similar to I.C. § 18-301, as being dependent upon the intent and objective of the
defendant, i.e., if all the offenses are incident to one objective, the defendant may be punished
for any one of them but not for more than one.” Id. The McCormick Court rejected interpreting
Idaho Code § 18-301 in the same manner that the California Supreme Court interpreted its
similar statute and held that “[a]lthough both crimes arose out of the same incident, each
constituted separate ‘acts’ under I.C. § 18-301.” Id. at 116, 594 P.2d at 154. Thus, the statement
by the Court in Major that “This inquiry requires consideration of the circumstances of the

2
    58 Cal.2d 748, 26 Cal.Rptr. 473, 376 P.2d 449 (1962).
3
    55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839 (1961).

                                                            13
conduct” was based upon interpreting Idaho Code section 18-301, not upon the double jeopardy
clause in the Idaho Constitution.
       Finally, the Major Court stated the inquiry into whether criminal conduct should be
divided or aggregated depends upon “consideration of the ‘intent and objective of the actor.’ In
re Ward, 64 Cal.2d 672, 51 Cal.Rptr. 272, 275, 414 P.2d 400, 403 (1966) . . . .” 111 Idaho at
414, 725 P.2d at 119.     Interestingly, In re Ward cited Neal v. State of California for the
proposition that “[w]hether a course of criminal conduct is divisible and consequently gives rise
to more than one act within the meaning of section 654 of the Penal Code is determined by the
intent and objective of the actor.” 64 Cal.2d at 676, 51 Cal. Rptr. at 275, 414 P.2d at 403. Thus,
the Major Court decided to interpret Idaho Code section 18-301 in the same manner as the
California Supreme Court had interpreted California Penal Code section 654 in Neal v. State of
California, which is the same interpretation that this Court had expressly rejected in McCormick.
Nevertheless, the Major Court’s statement that whether criminal conduct should be divided or
aggregated depends upon “consideration of the ‘intent and objective of the actor’ ” was based
upon interpreting Idaho Code section 18-301, not upon the double jeopardy clause in the Idaho
Constitution.
       Thus, the decision in Major was based upon the Court’s interpretation of Idaho Code
section 18-301, not upon its interpretation of the double jeopardy clause in the Idaho
Constitution. Therefore, Defendant has failed to show that the alleged error violated one or more
of his unwaived constitutional rights.
       Idaho Code section 18-301 was repealed in 1995. Ch. 16, § 1, 1995 Idaho Sess. Laws, p.
22. Therefore, the analysis adopted in Major is no longer applicable for determining whether a
criminal defendant can be sentenced for multiple crimes that were part of a single incident or
pursuant to a common scheme or plan reflecting a single continuing criminal impulse or intent.


                                             IX.
                                          Conclusion.

       We affirm the judgment of the district court.


       Chief Justice BURDICK, Justices J. JONES, HORTON, and Justice Pro Tem WALTERS
CONCUR.


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