               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41378

STATE OF IDAHO,                                  )
                                                 )     2014 Opinion No. 61
       Plaintiff-Respondent,                     )
                                                 )     Filed: August 12, 2014
v.                                               )
                                                 )     Stephen W. Kenyon, Clerk
MICHAEL JAY FREITAS,                             )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Lansing L. Haynes, District Judge. Hon. Clark Peterson,
       Magistrate.

       Order of the district court, on appeal from the magistrate division, affirming
       judgment of conviction for transferring water in violation of a city
       ordinance, affirmed.

       John M. Adams, Kootenai County Public Defender; Jay Logsdon, Deputy Public
       Defender, Coeur d’Alene, for appellant. Jay Logsdon argued.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent. Jessica M. Lorello argued.
                 ________________________________________________
MELANSON, Judge
       Michael Jay Freitas appeals from the district court’s order, entered in its intermediate
appellate capacity, affirming Freitas’s judgment of conviction for transferring water in violation
of Spirit Lake City Ordinance 7-4-10.        Freitas specifically alleges that the ordinance is
unconstitutional and that the district court erred in affirming his judgment of conviction despite
various asserted errors by the magistrate. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       Freitas was cited for providing water to a neighbor’s residence in violation of Spirit Lake
City Ordinance 7-4-10. An officer observed that a hose had been connected to a spigot on the
outside of Freitas’s home, that the hose was also connected to his neighbor’s home, and that



                                                1
water was leaking from the connections. The neighbor’s water service had been turned off due
to nonpayment.     The officer gave Freitas a verbal warning that he was violating the city
ordinance by connecting city water to a third person for use in a residence that was not otherwise
provided with city water service. The officer then gave Freitas a copy of the ordinance and left.
The officer returned the next day and cited Freitas after finding that he was continuing to provide
water to his neighbor in violation of the ordinance. Freitas told the officer that he did not think
he was doing anything wrong since the water he was providing had gone through his meter and
been paid for.
       Freitas filed a motion to dismiss, asserting that the ordinance was unconstitutional on its
face and as applied under various provisions of the federal and state constitutions.            The
magistrate denied the motion. Freitas went to trial before a jury. At the close of the state’s
evidence, Freitas moved for judgment of acquittal under Idaho Criminal Rule 29(a) based on
alleged insufficiency of the evidence, which the magistrate also denied. Freitas subsequently
requested a jury instruction that restated the first line of the ordinance regarding the city’s
ownership of the water system. The magistrate denied the requested instruction, finding that
there was no factual dispute over ownership of the water system. The jury ultimately found
Freitas guilty of violating the ordinance and the magistrate imposed a fine of $500, 1 but stayed
imposition of the sentence pending appeal pursuant to I.C.R. 54.5(a). Freitas appealed to the
district court, which affirmed Freitas’s judgment of conviction. Freitas again appeals.
                                                II.
                                  STANDARD OF REVIEW
       For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate division, this Court’s standard of review is the same as the Idaho Supreme Court’s.
The Supreme Court reviews the magistrate record to determine whether there is substantial and
competent evidence to support the magistrate’s findings of fact and whether the magistrate’s
conclusions of law follow from those findings. State v. Korn, 148 Idaho 413, 415, 224 P.3d 480,
482 (2009). If those findings are so supported and the conclusions follow therefrom, and if the



1
        As noted by the district court, although I.C. § 50-302 provides for a fine of up to $1,000
for violation of an ordinance, City of Spirit Lake Ordinance 1-4-1(A) provides that the maximum
penalty for violation of a Spirit Lake City ordinance is only $300. However, neither party has
mentioned this issue on appeal or below.

                                                2
district court affirmed the magistrate’s decision, we affirm the district court’s decision as a
matter of procedure. Id. Thus, the appellate courts do not review the decision of the magistrate.
State v. Trusdall, 155 Idaho 965, 968, 318 P.3d 955, 958 (Ct. App. 2014). Rather, we are
procedurally bound to affirm or dismiss the decisions of the district court. Id.
                                                 III.
                                            ANALYSIS
       Freitas alleges a number of errors on appeal. Primarily, he asserts that the ordinance is
unconstitutional on its face because it is facially vague and because it exceeds the police power
granted to municipalities under the Idaho Constitution and the statutorily granted power to
regulate domestic water systems. He also asserts that the ordinance is unconstitutional as applied
because it criminalizes his charitable conduct in this case. Finally, Freitas asserts that the district
court erred in affirming his judgment of conviction due to the magistrate’s error in giving an
allegedly incorrect elements instruction to the jury, rejecting his proposed jury instruction, and
denying his I.C.R. 29(a) motion for judgment of acquittal.
A.     Facial Constitutionality
       Freitas argues that the district court erred in holding that the ordinance is constitutional
on its face. Where the constitutionality of a statute is challenged, we review the lower court’s
decision de novo. State v. Cobb, 132 Idaho 195, 197, 969 P.2d 244, 246 (1998); State v. Martin,
148 Idaho 31, 34, 218 P.3d 10, 13 (Ct. App. 2009).               The party attacking a statute on
constitutional grounds bears the burden of proof and must overcome a strong presumption of
validity. State v. Korsen, 138 Idaho 706, 711, 69 P.3d 126, 131 (2003), abrogated on other
grounds by Evans v. Michigan, ___ U.S. ___, 133 S. Ct. 1069 (2013); State v. Cook, 146 Idaho
261, 262, 192 P.3d 1085, 1086 (Ct. App. 2008). Appellate courts are obligated to seek an
interpretation of a statute that upholds its constitutionality. State v. Manzanares, 152 Idaho 410,
418, 272 P.3d 382, 390 (2012); Martin, 148 Idaho at 34, 218 P.3d at 13.                 Rules for the
construction of ordinances are the same as those applied to the construction of statutes. City of
Lewiston v. Mathewson, 78 Idaho 347, 350, 303 P.2d 680, 681-82 (1956).
       1.      Facial vagueness
       Freitas alleges that the statute is facially vague. Due process requires that all be informed
as to what the state commands or forbids and that persons of ordinary intelligence not be forced
to guess at the meaning of the law. Cobb, 132 Idaho at 197, 969 P.2d at 246. No one may be


                                                  3
required at the peril of loss of liberty to speculate as to the meaning of penal statutes. Korsen,
138 Idaho at 711, 69 P.3d at 131.          A void for vagueness challenge is more favorably
acknowledged and a more stringent vagueness test will be applied where a statute imposes a
criminal penalty. Cobb, 132 Idaho at 198, 969 P.2d at 247. As a result, criminal statutes must
plainly and unmistakably provide fair notice of what is prohibited and what is allowed in
language persons of ordinary intelligence will understand. State v. Kavajecz, 139 Idaho 482,
486, 80 P.3d 1083, 1087 (2003); State v. Bitt, 118 Idaho 584, 585, 798 P.2d 43, 44 (1990);
Voyles v. City of Nampa, 97 Idaho 597, 599, 548 P.2d 1217, 1219 (1976). Additionally, a statute
is void for vagueness if it invites arbitrary and discriminatory enforcement. Cobb, 132 Idaho at
197, 969 P.2d at 246; Bitt, 118 Idaho at 588, 798 P.2d at 47. A statute avoids problems with
arbitrary and discriminatory enforcement by identifying a core of circumstances to which the
statute or ordinance unquestionably could be constitutionally applied. Bitt, 118 Idaho at 588,
798 P.2d at 47; State v. Medel, 139 Idaho 498, 502, 80 P.3d 1099, 1103 (Ct. App. 2003). It has
long been held that a statute should not be held void for uncertainty if it can be given any
practical interpretation. Mathewson, 78 Idaho at 351, 303 P.2d at 682.
       A statute may be challenged as unconstitutionally vague on its face or as applied to a
complainant’s conduct. Korsen, 138 Idaho at 712, 69 P.3d at 132; Martin, 148 Idaho at 35, 218
P.3d at 14. Freitas argues on appeal only that the ordinance is vague on its face, not as applied.
To be successful in a facial vagueness challenge, the complainant must demonstrate that the law
is impermissibly vague in all of its applications. Vill. of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 497 (1982); Cobb, 132 Idaho at 199, 969 P.2d at 248. That is, it
must be shown that the enactment is invalid in toto. Cobb, 132 Idaho at 199, 969 P.2d at 248;
State v. Newman, 108 Idaho 5, 12, 696 P.2d 856, 863 (1985). 2



2
        Freitas asks this Court to overturn prior cases decided by the Idaho Supreme Court that
cite to Vill. of Hoffman Estates for the requirement that a challenger of a statute show the law is
impermissibly vague in all its applications before it can be found facially unconstitutional, even
when the challenge is to a criminal statute. He cites to a U.S. Supreme Court case for support of
his assertion that this standard is incorrect and has been rejected by the Court in application to
criminal statutes. See Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1983) (stating, in dicta, that
the dissent’s assertion that a statute cannot be facially vague unless it is vague in all its possible
applications was not an accurate description of the Court’s holdings when dealing with criminal
provisions). However, the U.S. Supreme Court later repeated this standard in reference to a
criminal pretrial detention statute, albeit one deemed to be regulatory in nature. See United

                                                  4
       Here, Freitas has failed to meet this burden. Spirit Lake City Ordinance 7-4-10 provides:
               Every part of the city water system up to, and including, any shutoff valve
       and/or meter, which may be installed at or near the property line of any lot, is the
       property of the city. It shall be unlawful for any person to connect to, interfere or
       tamper with, turn on or off, permit connection or delivery of water to third persons
       for use within a residence or other building not otherwise provided with water
       service in accordance with this chapter, or to operate or introduce any substance into
       any part of the city water system unless that person is acting under the direct
       supervision of a qualified employee of the city or first obtains express written
       permission from the mayor.
(Emphasis added.) As held by the district court, the relevant and disputed italicized portion of
the ordinance can be reasonably broken down to provide that it is unlawful to either deliver city
water to a third party for use within a residence or other building not otherwise provided with
city water service or permit connection of city water to a third party for use within a residence or
other building not otherwise provided with city water service.




States v. Salerno, 481 U.S. 739, 745 (1987) (noting that a “facial challenge to a legislative Act is,
of course, the most difficult challenge to mount successfully, since the challenger must establish
that no set of circumstances exists under which the Act would be valid”). A decade later, Justice
John Paul Stevens stated in a concurring opinion that the appropriate standard to use for facial
vagueness challenges had been a subject of debate; however, he asserted that the Court has never
actually applied the strict standard of requiring a showing that a criminal statute is invalid in all
circumstances. Washington v. Glucksberg, 521 U.S. 702, 739-40 (1997) (Stevens, J.,
concurring). He noted that the most lenient standard used by the Court requires the challenger to
establish that the invalid applications of a statute must not only be real, but substantial as well,
judged in relation to the statute’s plainly legitimate sweep. Id. at 740 n.7. More recently, the
U.S. Supreme Court has recognized the existence of the seemingly conflicting standards
enunciated by the Court in Salerno and by Justice Stevens in his concurrence in Glucksberg. See
United States v. Stevens, 559 U.S. 460, 472 (2010). Tellingly, the Court declined to resolve the
inconsistency. Id. Thus, the U.S. Supreme Court has not “expressly rejected” application of the
Salerno (or Vill. of Hoffman Estates) standard for facial vagueness to criminal statutes, as Freitas
alleges. Moreover, the Idaho Supreme Court has not adopted the more relaxed standard Freitas
advocates from the footnote in Kolender and, instead, has continued to use the more demanding
standard of Vill. of Hoffman Estates and Salerno. See, e.g., State v. Doe, 148 Idaho 919, 930-31,
231 P.3d 1016, 1027-28 (2010) (citing to Kolender for the standard of definiteness required of a
criminal statute, but then citing to Vill. of Hoffman Estates for the proposition that an ordinance
alleged to be facially vague must be shown to be impermissibly vague in all its applications).
Accordingly, we decline Freitas’s invitation to overturn controlling precedent of the Supreme
Court of this state--something we could not do in any event--on the basis of unsettled U.S.
Supreme Court case law.

                                                 5
       Freitas does not identify any specific term or phrase of the ordinance that renders it
unconstitutionally vague on its face or even that he finds ambiguous. Instead, he asserts that the
entire ordinance is a “mishmash” of “garbled language” comprised of “clumps of nonsense
words” that are unintelligible to a person of ordinary intelligence and allow for unbridled
interpretation by law enforcement. We disagree. The law is clear on its face, prohibiting
usurpation of the municipality’s regulatory authority over domestic water service by anyone who
wishes to set themselves up as private providers of water. Although Freitas alleges that this
ordinance could conceivably make it illegal to give a person a glass of water if that person then
takes that water before drinking it to a residence where water service is not provided by the city,
we need not consider the “what ifs” that can be posed to question circumstances not applicable
here. See State v. Zichko, 129 Idaho 259, 262, 923 P.2d 966, 969 (1996). Instead, because a
defendant who engages in some conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others, we must first examine the
complainant’s conduct before analyzing other hypothetical applications of the law. Vill. of
Hoffman Estates, 455 U.S. at 495; State v. Laramore, 145 Idaho 428, 431, 179 P.3d 1084, 1087
(Ct. App. 2007). The reason for this analytical starting point is readily apparent because, if a
statute is not unconstitutionally vague as applied to the defendant’s conduct, it necessarily is not
unconstitutionally vague on its face. Laramore, 145 Idaho at 431, 179 P.3d at 1087.
       In this case, the conduct that Freitas engaged in--hooking a hose from his home to his
neighbor’s home to provide that neighbor with water within his home despite termination of the
neighbor’s water service by the city--is the quintessential example of the conduct the ordinance
was designed to prohibit. This and similar forms of unauthorized usurpation of the city’s
exclusive authority to provide domestic water services are the core of circumstances to which the
ordinance can unquestionably be constitutionally applied. Law enforcement is not empowered to
restrain all conduct involving provision of water outside of the city water system. Only when an
individual takes the additional step of setting himself or herself up as the provider of water
service to a residence or other building where water service has been discontinued may the
ordinance be invoked.     The ordinance need not be perfectly clear; only reasonable clarity
sufficient to provide fair notice to persons of ordinary intelligence and guidance to law
enforcement is required. See State v. Alley, 155 Idaho 972, 983, 318 P.3d 962, 973 (Ct. App.
2014). We conclude that Spirit Lake City Ordinance 7-4-10 gives such fair notice as to the


                                                 6
conduct it prohibits and does not countenance arbitrary enforcement. Accordingly, Freitas has
failed to show that the ordinance is facially vague.
       2.      Article XII, Section 2, of the Idaho Constitution
       Freitas also alleges that the city exceeded the power granted to it under Article XII,
Section 2, of the Idaho Constitution. Specifically, Freitas argues that the Section 2 grant of
police power, along with the statutory power to regulate domestic water services granted to
municipalities under I.C. § 50-323, has been limited by I.C. § 50-1030(f). He claims that Section
50-1030(f) limits municipalities to the use of civil penalties for regulation of domestic water
systems and that the ordinance here exceeds that limitation by criminalizing the provision of
water to a third party.    He also asserts that the ordinance could apply beyond the city’s
jurisdiction and that the ordinance is improper, unreasonable, and arbitrary.
       Article XII, Section 2, of the Idaho Constitution provides that any “incorporated city or
town may make and enforce, within its limits, all such local police, sanitary and other regulations
as are not in conflict with its charter or with the general laws.” This provision constitutes a grant
of local police powers to Idaho cities. Caesar v. State, 101 Idaho 158, 161, 610 P.2d 517, 520
(1980); State v. Clark, 88 Idaho 365, 373, 399 P.2d 955, 959 (1965). Idaho appellate courts have
interpreted three general restrictions pertaining to ordinances or regulations enacted under this
constitutional grant of local police power: (1) the ordinance or regulation must be confined to
the limits of the governmental body enacting the same; (2) it must not be in conflict with other
general laws of the state; and (3) it must not be an unreasonable or arbitrary enactment. Clark,
88 Idaho at 374, 399 P.2d at 960; State v. Reyes, 146 Idaho 778, 780, 203 P.3d 708, 710 (Ct.
App. 2008). Moreover, municipalities may exercise only those powers expressly granted to them
or necessarily implied from the powers granted. City of Grangeville v. Haskin, 116 Idaho 535,
538, 777 P.2d 1208, 1211 (1989); Caesar, 101 Idaho at 160, 610 P.2d at 519. The party
challenging the validity of a municipal exercise of a constitutionally granted police power bears
the burden of showing that such an exercise is either in conflict with the general laws of the state
or that it is unreasonable or arbitrary. Plummer v. City of Fruitland, 139 Idaho 810, 813, 87 P.3d
297, 300 (2004).
         Idaho Code Section 50-302(1) provides:
               Cities shall make all such ordinances, bylaws, rules, regulations and
       resolutions not inconsistent with the laws of the state of Idaho as may be
       expedient, in addition to the special powers in this act granted, to maintain the

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       peace, good government and welfare of the corporation and its trade, commerce
       and industry. Cities may enforce all ordinances by fine, including an infraction
       penalty, or incarceration; provided, however, except as provided in subsection (2)
       of this section, that the maximum punishment of any offense shall be by fine of
       not more than one thousand dollars ($1,000) or by imprisonment not to exceed six
       (6) months, or by both such fine and imprisonment.
The legislature has specifically designated the provision of domestic water services as one of the
trades, commerce, or industry that municipalities may engage in and regulate, even by fine or
incarceration. See I.C. § 50-323; Alpert v. Boise Water Corp., 118 Idaho 136, 141, 795 P.2d 298,
303 (1990). Section 50-323 provides:
               Cities are hereby empowered to establish, create, develop, maintain and
       operate domestic water systems; provide for domestic water from wells, streams,
       water sheds or any other source; provide for storage, treatment and transmission
       of the same to the inhabitants of the city; and to do all things necessary to protect
       the source of water from contamination. The term “domestic water systems” and
       “domestic water” includes by way of example but not by way of limitation, a
       public water system providing water at any temperature for space heating or
       cooling, culinary, sanitary, recreational or therapeutic uses.
Freitas alleges that these provisions and Article XII, Section 2, of the Idaho Constitution are
limited by I.C. § 50-1030(f). 3 This is incorrect. Section 50-1030 begins by providing that, “in
addition to the powers which it may now have, any city shall have power under and subject to the
following provisions: . . .” (Emphasis added.) This makes plain that Section 50-1030 is not a
limitation on either the local police powers provided to municipalities under Article XII,
Section 2, of the Idaho Constitution or the power to regulate domestic water granted to
municipalities under Section 50-323. Instead, Section 50-1030 supplements those powers and
enumerates other specific powers relating to municipal finances. As a result, Section 50-1030(f)


3
       Idaho Code Section 50-1030 provides, in pertinent part:

                In addition to the powers which it may now have, any city shall have
       power under and subject to the following provisions:
                ....
                (f)     To prescribe and collect rates, fees, tolls or charges, including the
       levy or assessment of such rates, fees, tolls or charges against governmental units,
       departments or agencies, including the state of Idaho and its subdivisions, for the
       services, facilities and commodities furnished by such works, or by such
       rehabilitated existing electrical generating facilities, and to provide methods of
       collections and penalties, including denial of service for nonpayment of such
       rates, fees, tolls or charges;

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is irrelevant to the validity of the ordinance in question and the ordinance is not in conflict with
the general laws of Idaho.
       Freitas further argues that the city ordinance does not limit itself to the City of Spirit Lake
and that the magistrate erred in applying a construction to the ordinance limiting its application
to the city to make it constitutional. An appellate court is obligated to seek an interpretation of a
statute or ordinance that upholds its constitutionality. Manzanares, 152 Idaho at 418, 272 P.3d at
390; Cobb, 132 Idaho at 197, 969 P.2d at 246. Thus, the district court correctly determined that
the magistrate did not err by applying a reasonable limiting construction to the ordinance to
avoid the alleged constitutional issue raised by Freitas. In any event, the ordinance does not
purport to apply beyond the city limits. Indeed, the ordinance’s language limits it to application
to conduct involving the “city water system.”         (Emphasis added.)      Accordingly, Freitas’s
argument on this issue is meritless.
       Freitas also alleges that the ordinance is improper, unreasonable, and arbitrary. He
claims that the ordinance is improper because it causes the city to act in an anticompetitive way
to uphold its monopoly on the provision of domestic water. Whether an ordinance is improper,
unreasonable, or arbitrary is a question of law that we review de novo. Sanchez v. City of
Caldwell, 135 Idaho 465, 468, 20 P.3d 1, 4 (2001). Freitas asserts that the city’s interest in being
the sole provider and regulator of domestic water is improper because it violates Section 5 of the
Federal Trade Commission Act and Section 7 of the Clayton Act. 4 Freitas cites to Federal Trade
Comm’n v. Phoebe Putney Health Sys., Inc., ___ U.S. ___, ___, 133 S. Ct. 1003, 1010 (2013) for
the proposition that municipalities engaged in anticompetitive conduct are not necessarily
entitled to state-action immunity from federal antitrust laws.
       Freitas’s reliance on this case is misplaced. The Court in that case stated the following:
       [S]ubstate governmental entities do receive immunity from antitrust scrutiny
       when they act pursuant to state policy to displace competition with regulation or
       monopoly public service. This rule preserves to the States their freedom . . . to
       use their municipalities to administer state regulatory policies free of the
       inhibitions of the federal antitrust laws without at the same time permitting purely
       parochial interests to disrupt the Nation’s free-market goals.
               As with private parties, immunity will only attach to the activities of local
       governmental entities if they are undertaken pursuant to a clearly articulated and
       affirmatively expressed state policy to displace competition.


4
       15 U.S.C. § 45 (2012) and 15 U.S.C § 18 (2012), respectively.

                                                 9
Phoebe Putney Health Sys., ___ U.S. at ___, 133 S. Ct. at 1010-11 (internal quotation marks and
citations omitted). The Court went on to state that, to pass the clear articulation test, a state
legislature need not expressly state in a statute or its legislative history that the legislature intends
for the delegated action to have anticompetitive effects. Id. at ___, 133 S. Ct. at 1011. Rather,
state-action immunity applies if the anticompetitive effect was the foreseeable result of what the
state authorized. Id.
        It has long been established that the legislature intended through I.C. § 50-323 to displace
competition with municipality provided domestic water services. Indeed, “the state of Idaho has
specifically delegated and authorized its cities to provide utility services directly to its residents
or to contract with other entities to provide the necessary utility services.” Alpert, 118 Idaho at
141, 795 P.2d at 303. This includes authorization to “establish, create, develop, maintain and
operate domestic water systems” under I.C. § 50-323. Alpert, 118 Idaho at 141, 795 P.2d at 303.
Moreover, as stated by the Court in Alpert in reference to I.C. § 50-323 and other statutes
providing municipal authority over utilities:
                These Idaho statutes clearly contemplate that a city or municipality may
        engage in activities such as [entering into utility franchise agreements]. Such
        activity is a foreseeable result of empowering the cities to engage in the operation
        of their own utilities and these activities do not constitute unfair competition nor
        antitrust violations. The clear state policy is to displace competition in the
        providing of utility service with regulation of a monopoly public service.
Alpert, 118 Idaho at 141, 795 P.2d at 303 (emphasis added). See also Idaho Power & Light Co.
v. Blomquist, 26 Idaho 222, 241, 141 P. 1083, 1088 (1914) (noting that the legislature had
determined that providing electricity to the public must be transacted by a regulated monopoly
because “free competition between as many companies or as many persons as might desire to put
up wires in the streets is impractical and not for the best interests of the people”). Accordingly,
state-action immunity applies to municipal regulation of domestic water systems and the
ordinance is not improper based on its allegedly anticompetitive effects.
        Additionally, Freitas asserts that the ordinance is arbitrary because he cannot conceive of
an instance where sharing water could be harmful to the municipality or others. Generally,
courts are not concerned with the wisdom of ordinances and will uphold a municipal ordinance
unless it is clearly unreasonable or arbitrary. Clark, 88 Idaho at 375-76, 399 P.2d at 961. It is
not the province of courts, except in clear cases, to interfere with the exercise of the power


                                                   10
reposed by law in municipal corporations for the protection of local rights and the health and
welfare of the people in the community. Sanchez, 135 Idaho at 468, 20 P.3d at 4. Indeed, we
indulge every presumption in favor of the valid exercise of legislative discretion unless arbitrary
action is clearly disclosed. Clark, 88 Idaho at 375, 399 P.2d at 961.
        Here, Freitas fails to acknowledge or address the state’s legitimate interest in retaining
control of the authority delegated to the city to exclusively provide domestic water services. He
also fails to recognize that the municipality’s ability to effectively collect delinquent water fees is
undermined by circumvention of the penalty for failing to pay those fees--disruption of service.
Although the water provided to the third party is still being paid for, the water previously
provided to the third party for which that third party has not paid remains unpaid and the
incentive to pay that debt is reduced. This threatens the city’s ability to provide low-cost water
services. 5 Thus, the municipality, and thereby the community it serves, is harmed and the
municipality may take steps to prevent that harm, including criminalizing the causal conduct. As
a result, the ordinance is not arbitrary. Instead, it is the result of a legitimate exercise of the
city’s local police powers granted under Article XII, Section 2, of the Idaho Constitution and
I.C. § 50-323 in regulating the provision of domestic water services for the peace, good
government, and general welfare of the city residents. Accordingly, the ordinance is facially
constitutional and the district court did not err in so finding.
B.      As-Applied Constitutionality
        Freitas alleges that the ordinance is also unconstitutional as applied to his conduct. He
claims that the ordinance violates various provisions of the federal and state constitutions by
prohibiting charitable giving. To prove a statute is unconstitutional “as applied,” the party
challenging the constitutionality of the statute must demonstrate that the statute, as applied to the
defendant’s conduct, is unconstitutional. Korsen, 138 Idaho at 712, 69 P.3d at 132; Cook, 146
Idaho at 262, 192 P.3d at 1086.
        Freitas fails to specify how, under any of the several provisions he invokes, the ordinance
is unconstitutional. Instead, he provides several statements about the value of charity followed

5
        The clerk-treasurer for the City of Spirit Lake testified that the city intentionally tries to
keep its water rates low, as the city includes a large low-income population. The city charges a
$15 flat fee per resident for domestic water service, which includes 12,000 gallons of water. A
resident is charged an additional $1.25 for each additional 1,000 gallons of water used. The
clerk-treasurer testified that this is one of the lowest rates for domestic water service in the state.

                                                  11
by conclusory assertions that charity must be protected under the state and federal constitutions.
These assertions are unsupported by cogent argument or relevant authority applicable to the facts
of this case. A party waives an issue on appeal if either authority or argument is lacking.
Zichko, 129 Idaho at 263, 923 P.2d at 970. Accordingly, we will not address this argument
further.
C.         Additional Claims
           1.     Instructional error
           Freitas also argues that the district court erred in affirming his judgment of conviction
because the magistrate misinterpreted the ordinance and he was tried under the wrong elements.
He asserts that the part of the ordinance at issue should be interpreted to prohibit individuals
from making their own direct connection to the city’s water system (such as by “digging up the
water line”) in order to connect or deliver city water to a third party. In other words, Freitas
argues that the magistrate provided the jury with the wrong elements instruction.
           Jury instructions must correctly inform the jury as to the elements of the crime charged.
State v. Hickman, 146 Idaho 178, 181, 191 P.3d 1098, 1101 (2008). The question of whether the
jury has been properly instructed is a question of law over which we exercise free review. State
v. Severson, 147 Idaho 694, 710, 215 P.3d 414, 430 (2009). When reviewing jury instructions,
we ask whether the instructions as a whole, and not individually, fairly and accurately reflect
applicable law. State v. Bowman, 124 Idaho 936, 942, 866 P.2d 193, 199 (Ct. App. 1993).
           The plain language of the ordinance belies Freitas’s interpretation, as previously
discussed. Freitas identifies no language, and the ordinance contains no such language, that
supports his strained interpretation. The elements instruction that the magistrate provided to the
jury, as a part of the instructions as a whole, fairly and accurately conveyed the correct elements
of the crime for which Freitas was charged. 6 Moreover, Freitas did not object to the elements



6
           The magistrate provided the following elements instruction to the jury:

                   You’re instructed that the essential elements of the crime of unlawful act
           regarding water system which the defendant is charged are: One, on or about the
           28th of September 2012; two, in Kootenai County, State of Idaho; three, the
           defendant, Michael J. Freitas, permitted connection or delivery of city water; four,
           to third persons; five, for use in a residence; six, not otherwise provided with
           water service.

                                                   12
instruction provided, requiring him to show fundamental error to warrant reversal on that basis.
See State v. Perry, 150 Idaho 209, 226, 245 P.3d 961, 978 (2010). Freitas has made no showing
that the elements instruction constituted fundamental error.
       Freitas also alleges that the district court erred in affirming his judgment of conviction
because the magistrate erroneously declined to give his proposed jury instruction. 7           The
magistrate found that Freitas’s proposed jury instruction did not address any issue relevant to the
case, as there was no dispute over who owned the water system from which the water was taken.
Thus, the district court did not err in affirming the magistrate’s denial, as this argument also
relied on Freitas’s unsupportable interpretation of the city ordinance. As noted above, the state
needed only to prove that Freitas permitted connection to or delivery of water obtained from the
city, not that the water was still owned by the city at the time of the connection or delivery.
Additionally, even if ownership of the water provided were an issue, the proposed instruction is
irrelevant to that issue because it only addressed ownership of the water system. Accordingly,
Freitas has failed to show that the district court erred in affirming his judgment of conviction
based on either of the alleged instructional errors.
       2.      Motion to acquit
       Freitas further contends that the district court erred in affirming his judgment of
conviction because the magistrate erroneously denied his I.C.R. 29(a) motion for judgment of
acquittal. Specifically, he asserts that the state’s evidence was insufficient to prove that the
water Freitas delivered to his neighbors came from the city’s water system.
       Idaho Criminal Rule 29(a) provides that, at the close of evidence for either party, the
court may, sua sponte or on motion of the defendant, enter a judgment of acquittal if the
evidence is insufficient to sustain a conviction of the offense. The test applied when reviewing a
court’s ruling on a motion for judgment of acquittal is to determine whether the evidence was




              If any of the above has not been proven beyond a reasonable doubt, you
       must find the defendant not guilty. If each of the above has been proven beyond a
       reasonable doubt, you must find the defendant guilty.
7
        The proposed jury instruction stated as follows: “The Spirit Lake city water system is
property of the city up to and including any shutoff valve and/or meter which may be installed at
or near the property of any lot.”

                                                 13
sufficient to sustain a conviction of the crime charged. I.C.R. 29(a); State v. Fields, 127 Idaho
904, 912-13, 908 P.2d 1211, 1219-20 (1995). Where, as here, the defendant presents evidence in
defense after denial of the motion for judgment of acquittal, this Court will conduct a review of
all of the evidence presented at trial to determine whether it was sufficient to support the
conviction.   See State v. Watson, 99 Idaho 694, 698, 587 P.2d 835, 839 (1978); State v.
Henninger, 130 Idaho 638, 640, 945 P.2d 864, 866 (Ct. App. 1997). When reviewing the
sufficiency of the evidence where a judgment of conviction has been entered upon a jury verdict,
the evidence is sufficient to support the jury’s guilty verdict if 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 the crime beyond a reasonable doubt. State v. Herrera-Brito,
131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104,
822 P.2d 998, 1001 (Ct. App. 1991). We do not substitute our view for that of the jury as to the
credibility of the witnesses, the weight to be given to the testimony, and the reasonable
inferences to be drawn from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v.
Decker, 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, when a motion for
judgment of acquittal has been denied, and the defendant stands convicted, all reasonable
inferences on appeal are taken in favor of the prosecution. State v. O’Campo, 103 Idaho 62, 67,
644 P.2d 985, 990 (Ct. App. 1982).
       Here, the citing officer testified that, when she came upon the hose running from Freitas’s
home to his neighbor’s home, she noticed water leaking from the connections, indicating that
water was running from Freitas’s home to his neighbor’s home. The officer also testified that,
after she told Freitas he was violating the city ordinance, Freitas told her that “as long as the
water was going through his meter and he’s paying for it,” Freitas believed he could do with it as
he pleased, including giving it to his neighbors. Additionally, one of the individuals staying at
the neighbor’s home to which the hose was connected testified that, although she never saw
where the other end of the hose was connected, she was aware that the home was being supplied
with water by a neighbor through the hose leading across the alley to Freitas’s home. Thus, as
noted by the district court, the jury could reasonably infer from these statements that the water
Freitas was delivering to his neighbors from his home came from the city’s water system to
which his home was connected. As a result, the district court did not err in affirming the
magistrate’s denial of Freitas’s I.C.R. 29(a) motion for judgment of acquittal.


                                                 14
                                                IV.
                                         CONCLUSION
       Freitas has failed to show that the ordinance is unconstitutional either on its face or as
applied to his conduct. He has also failed to show that the district court erred in affirming the
magistrate’s elements instruction, its denial of his proposed jury instruction, or its denial of his
I.C.R. 29(a) motion for judgment of acquittal.        Accordingly, we affirm the district court’s
intermediate appellate decision upholding Freitas’s judgment of conviction for transferring water
in violation of Spirit Lake City Ordinance 7-4-10.
       Chief Judge GUTIERREZ and Judge GRATTON, CONCUR.




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