
873 P.2d 784 (1993)
125 Idaho 530
STATE of Idaho, Plaintiff-Respondent,
v.
Timothy Alan DUNLAP, Defendant-Appellant.
No. 19928.
Supreme Court of Idaho, Twin Falls, March 1993 Term.
July 27, 1993.
Rehearing Denied September 28, 1993.
*785 Whittier, McDougall, Souza, Murray & Clark, Chartered, Pocatello, for defendant-appellant. Monte R. Whittier, argued.
Larry EchoHawk, Atty. Gen., and Lynn E. Thomas (argued), Deputy Atty. Gen., Boise, for plaintiff-respondent.
McDEVITT, Chief Justice.

BACKGROUND
On October 16, 1991, Dunlap entered and robbed the Security State Bank in Soda Springs, Idaho. In the course of the robbery, Dunlap shot and killed Tonya Crane ("Crane"), a bank teller, with a close-range shotgun blast to her chest. Dunlap fled the scene, but subsequently surrendered to police officers. A criminal information was filed against Dunlap on November 15, 1991, charging him with first degree murder, robbery, use of a firearm in the commission of a murder, and use of a firearm in the commission of a robbery.
On December 30, 1991, the State and Dunlap entered into a plea bargain agreement which was accepted by the district court. In the agreement, the State dropped the robbery and use of a firearm in the commission of a robbery charges, and Dunlap pled guilty to first degree murder and use of a firearm in the commission of a murder. Although Dunlap pled guilty to first degree murder, the district court specified that Dunlap's plea did not admit that he had a specific intent to kill at the time the bank robbery took place. The plea agreement allowed the State to seek the death penalty and it was made clear in the agreement that the State would seek the death penalty.
The plea agreement also recognized that Dunlap had been indicted in the October 6, 1991, killing of Belinda Bolanos ("Bolanos") in Ohio. Dunlap agreed that the Ohio indictment, information, witness statements, and evidence could be submitted to the district court through the presentence report and could be considered by the district court as evidence in aggravation. Dunlap also agreed not to object to the Ohio information, witness statements, or evidence except on the basis that he had not been convicted of the Ohio crime at the time of the agreement. In return, the State agreed not to call as a witness at sentencing any Ohio state police officer, forensic pathologist, or other Ohio law enforcement official. Nor would the State introduce any pictures of Bolanos taken by Ohio law enforcement authorities after her death.
*786 Prior to sentencing, Dunlap filed a motion in limine to exclude at sentencing any evidence of the Bolanos killing. Dunlap argued that because he had not been convicted of any crime in Ohio, such evidence was irrelevant, prejudicial, and would violate his right to due process by determining his guilt in the Bolanos killing without the benefit of a trial. The district court disagreed and denied Dunlap's motion.
The sentencing hearing was held on March 31, 1992, and on April 19, 1992, the district court filed its "Findings of the Court in Considering Death Penalty under Idaho Code § 19-2515 and Imposition of Sentence," sentencing Dunlap to death. Pursuant to I.C. § 19-2515, the district court found two aggravating circumstances to exist beyond a reasonable doubt, which considered individually, were not outweighed by all of the mitigating evidence. The aggravating circumstances found by the district court include: (1) that the murder was a felony murder committed with the specific intent to cause the death of a human being, I.C. § 19-2515(g)(7); and (2) that Dunlap, by prior conduct, or conduct in the commission of the murder at hand, exhibited a propensity to commit murder which will probably constitute a continuing threat to society, I.C. § 19-2515(g)(8).[1]
Dunlap appeals from the trial court's sentence, raising the following issues:
1. Whether the trial court erred in determining that the aggravating circumstance listed at I.C. § 19-2515(g)(7) existed beyond a reasonable doubt.
2. Whether the trial court erred in determining that the aggravating circumstance listed at I.C. § 19-2515(g)(8) existed beyond a reasonable doubt.
3. Whether I.C. § 19-2515(g)(8) is unconstitutionally vague.
4. Whether I.C. § 19-2515(c) is unconstitutional.
5. Whether the trial court erred by failing to give more weight to certain mitigating factors upon sentencing.
In addition to these issues we also independently review the sentence of death as required by I.C. § 19-2827.

I.

I.C. § 19-2515(g)(7)
Idaho Code § 19-2515(g)(7) states that a statutory aggravating circumstance will exist when "[t]he murder was one defined as murder of the first degree by section 18-4003, Idaho Code, subsections (b), (c), (d), (e) or (f), and it was accompanied with the specific intent to cause the death of a human being." In this case, the district court found the (g)(7) aggravating circumstance to exist beyond a reasonable doubt based on I.C. § 18-4003(d),[2] stating:
The facts of the killing demonstrated that the defendant entered the bank with a preconceived plan, demanded the money, received it, and shot the victim  all in approximately thirty seconds. Further the victim herself made no sudden moves and activated no alarms. The defendant admitted that he intended to shoot the victim, that he had sawed off the shotgun with the intent to use it in criminal activity, and that he knew the effect of sawing off the shotgun and the effect of using low load shotgun shells. He told jail inmates that with this low load he knew the shot would kill the victim, regardless, but she would *787 die more slowly. He fired his weapon eighteen inches to two feet from the victim's abdomen.
Additionally, testing performed for the State indicates that the trigger pull of this weapon was at least seven pounds, and, therefore, would not, under circumstances described, have been accidentally discharged. Further, the defendant has indicated that he committed the killing because Tonya Crane "had to die" and "to teach her a lesson." He has also indicated that he shot her to create a diversion. The defendant further related to inmates of the Bingham County Jail that he intended to kill Tonya Crane when he robbed the bank. Finally, Dr. Estess testified that it was his opinion that Timothy Dunlap entered the bank with the intent to kill rather than to rob. It was the Doctor's opinion that the killing provided the defendant with emotional gratification and that he picked this particular victim because she was vulnerable and easy to kill.
. . . . .
The law judges intent by objective standards. Persons of reasonable experience and intelligence would expect death as the natural consequence of a shooting under these circumstances. To purchase and modify a shotgun, to enter a bank with an abundance of ammunition, to then discharge the gun directly at a person from a range of less than two feet, all denotes specific intent. Dunlap admits intending to shoot and intending to wound. To claim under these circumstances a lack of intent to kill is ludicrous.
Therefore, the overwhelming evidence of this case demonstrates by any objective standard that the State has proved beyond a reasonable doubt the defendant had the specific intent to cause death to a human being when he shot and killed Tonya Crane.
Dunlap raises two arguments regarding the district court's findings. First, Dunlap argues that the district court used the wrong standard in finding that Dunlap had the specific intent to kill, and second, that the evidence does not support a finding beyond a reasonable doubt that Dunlap had the specific intent to kill when he shot Tonya Crane. We address each of Dunlap's arguments in turn.
Regarding the standard by which the district court is to determine specific intent to kill, Dunlap argues that the district court failed to differentiate between the premeditation that normally accompanies the act of first degree murder with the element of specific intent to kill, which is required to prove the aggravating circumstance of I.C. § 19-2515(g)(7). Because murder is defined as "the unlawful killing of a human being with malice aforethought," I.C. § 18-4001, Dunlap maintains that the specific intent to kill language contained in I.C. § 19-2515(g)(7) requires a finding of "heightened premeditation" by the trial court.
In support of his argument, Dunlap cites various Florida cases. See Porter v. State, 564 So.2d 1060 (Fla.1990); Pardo v. State, 563 So.2d 77 (Fla.1990); Hamblen v. State, 527 So.2d 800 (Fla.1988). However, the Florida cases are not interpreting an aggravating condition similar to that found in I.C. § 19-2515(g)(7). Rather, the aggravating circumstance in those cases is whether the murder was committed in a cold, calculated, and premeditated manner without any moral or legal justification. See Fla.Stat. § 921.141(5)(i). Furthermore, Florida imposes the "heightened premeditation" requirement because premeditation is already an element of capital murder in Florida. The Florida Supreme Court stated in Porter:
Since premeditation already is an element of capital murder in Florida, section 921.141(5)(i) must have a different meaning; otherwise, it would apply to every premeditated murder. Therefore, section 921.141(5)(i) must apply to murders more cold-blooded, more ruthless, and more plotting than the ordinary reprehensible crime of premeditated first-degree murder. (Footnotes omitted.)
564 So.2d at 1064. Such is not the case in Idaho. Under I.C. § 18-4003(d), "malice aforethought" is satisfied by the fact that the killing was committed in the perpetration of the felony. State v. Lankford, 116 Idaho 860, *788 781 P.2d 197 (1989); State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1983).
Nevertheless, Dunlap argues that this analysis does not fit for the other first degree murders listed in I.C. § 19-2515(g)(7), such as the murder of a peace officer under I.C. § 18-4003(b), or a murder committed by a person under a sentence for murder under I.C. § 18-4003(c). Dunlap argues that "malice aforethought" is not satisfied by the circumstances of these killings as it is with felony murder. Therefore, the requirement in I.C. § 19-2515(g)(7) that the State prove a specific intent to kill necessarily infers a heightened degree of premeditation. However, this argument ignores the definition of malice.
Under I.C. § 18-4002, malice is express when there is manifested a deliberate intention to unlawfully take away a life, or implied, when the circumstances attending the killing show an abandoned and malignant heart. Under this interpretation, an abandoned and malignant heart killing is murder although there is no premeditated intent to kill. If the abandoned and malignant heart murder also involves the enumerated circumstances in I.C. § 18-4003(b), (c), (d), (e) or (f), such as the person murdered is a peace officer, § 18-4003(b), or the person who committed the murder was under a sentence for murder, § 18-4003(c), then that murder is classified as first degree murder under I.C. § 18-4003. See State v. Pratt (James), 125 Idaho 546, 873 P.2d 800 (1993); State v. Lankford, 116 Idaho 860, 781 P.2d 197 (1989). See also Arave v. Creech, ___ U.S. ___, 113 S.Ct. 1534, 123 L.Ed.2d 188. However, unless the State can show the additional element of specific intent to kill, i.e. a premeditated intent to kill, the circumstances of an abandoned and malignant heart murder will not satisfy I.C. § 19-2515(g)(7) and allow a judge to impose the death penalty. The specific intent to kill requirement of I.C. § 19-2515(g)(7) merely requires that the State prove that the first degree murder occurred with express malice. Nothing in the statutory scheme or the language of the statute indicates that a higher standard was intended by the legislature. Nor do any of our prior cases in which I.C. § 19-2515(g)(7) was applied suggest that the malice aforethought requirement for murder is duplicated by the (g)(7) factor. Accordingly, the district court applied the correct standard in finding specific intent to kill in this case.
We now turn to the issue of whether there is sufficient evidence to support a finding that Dunlap had the specific intent to kill Crane beyond a reasonable doubt. The record shows that Dunlap carried a sawed-off shotgun into the bank, pointed it at Crane at a range of less than two feet and pulled the trigger, killing her. We have held that express malice can be found when a defendant uses a deadly weapon against a person in a deadly and dangerous manner. State v. Warden, 100 Idaho 21, 592 P.2d 836 (1979); State v. Buchanan, 73 Idaho 365, 252 P.2d 524 (1953). Additionally, Dr. Estess testified that Dunlap entered the bank with the intent to kill, not to rob. Dunlap himself told others that he intended to kill Crane. The evidence in this case supports, beyond a reasonable doubt, the district court's finding that Dunlap committed the robbery with the specific intent to kill as required by I.C. § 19-2515(g)(7).

II.

I.C. § 19-2515(g)(8)
At the time of sentencing, Dunlap had been indicted in Ohio for the killing of Bolanos, and under the plea agreement, the State was permitted to present the indictment, information, witness statements, and other evidence of the Bolanos killing for the purpose of proving that Dunlap had the propensity to commit murder under I.C. § 19-2515(g)(8). Pursuant to the plea agreement, Dunlap could only object to such evidence on the basis that he had not been convicted of the crime in the State of Ohio. However, the plea agreement also states that if the trial court admits the Ohio evidence at sentencing over Dunlap's objection, then Dunlap admits that he feloniously killed Bolanos.[3]
*789 The district court ruled that the evidence of the Ohio killing was admissible because it was both reliable and was otherwise admissible under the Idaho Rules of Evidence and Idaho case law. Dunlap argues on appeal that the district court erred in considering the Ohio evidence, claiming that because he had not been convicted of the crime at that time the use of such evidence was irrelevant. However, in State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), we defined "propensity" as "a proclivity, a susceptibility, and even an affinity toward committing the act of murder." Certainly under this definition, Dunlap's involvement in the Bolanos killing is relevant to Dunlap's character and whether he has a propensity to commit murder.
Nevertheless, Dunlap argues that because he has not been convicted of any crime regarding the Bolanos killing, the use of such evidence is prejudicial and should not have been considered by the district court despite its relevancy. We have stated that a "sentencing judge is entitled to consider a wide range of relevant evidence when he evaluates what the appropriate sentence for each particular defendant he sentences must be." Sivak v. State, 112 Idaho 197, 214, 731 P.2d 192, 209 (1986). In past cases, relevant evidence has included prior criminal conduct despite the fact that the particular defendant had not been convicted of a crime. State v. Brown, 121 Idaho 385, 825 P.2d 482 (1992) (letters detailing other violent crimes that defendant had committed related to defendant's dangerousness to society and to his character and were therefore not unfairly prejudicial); State v. Kohoutek, 101 Idaho 698, 699, 619 P.2d 1151, 1152 (1980) ("It is proper for a trial court in sentencing a defendant to consider evidence of his participation in criminal conduct ... for which he has not been convicted or for which an information has not been secured."); State v. Ott, 102 Idaho 169, 170, 627 P.2d 798, 799 (1981). ("In arriving at its sentencing decision the court was within its authority in considering prior charges against Ott which had been dismissed and the pending charges against him....")
The most applicable case on this issue is State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983). In Creech, this Court found the defendant's propensity to commit murder and his continuing threat to society was evidenced by prior conduct which consisted of murder charges which were pending or for which the defendant had not been charged. The Court stated:
As applied to this particular defendant, the finding of propensity was clearly tailored and correct. The defendant here committed murder at least four times prior to the instant offense, twice in Idaho and also in Oregon and in California. There presently exist other pending charges of murder in the first degree against him. The testimony of an eye witness to one of Creech's previous murders, coupled with psychiatric evidence, tends to prove that the appellant is violent and vengeful and that he experiences no remorse for his actions. Letters written by Creech to law enforcement personnel detailed numerous alleged murders beyond those for which he has already been convicted and intimate his intentions to kill in the future. Creech's own statements claim responsibility for approximately forty murders.

105 Idaho at 371, 670 P.2d at 472 (emphasis added). Given this prior case law, we conclude that evidence of prior unconvicted crimes is relevant and is not unduly prejudicial when determining whether a defendant has the propensity to commit murder in the future.
In light of the relevance of Dunlap's involvement with the Bolanos killing and our prior case law which allows such evidence to be considered, the district court properly considered the Ohio evidence in determining whether Dunlap has the propensity to kill under I.C. § 19-2515(g)(8). Consequently, Dunlap "does hereby agree and admit that *790 he did feloniously kill Belinda Bolanos ... by shooting her in the throat and in the head with a cross-bow." Pursuant to the plea agreement, this confession is admissible only for purposes of the plea agreement and the sentencing of Dunlap for the charge of first degree murder.[4]
In addition to evidence of the Bolanos killing, there was testimony by Dr. Estess that Dunlap has an explosive personality, motivated by rage and anger, and that the objects of his anger are generally women. Dr. Estess gave his opinion that Dunlap has the propensity to commit murder in the future. This opinion was based on personal interviews with Dunlap, interviews of Dunlap by others, the evidence from the Crane and Bolanos killings and past medical and psychiatric evaluations of Dunlap. Accordingly, we concluded that the evidence in this case supports, beyond a reasonable doubt, the district court's finding that Dunlap has the propensity to commit murder which will probably constitute a threat to society.

III.

CONSTITUTIONALITY OF I.C. § 19-2515(g)(8)
Dunlap next argues that I.C. § 19-2515(g)(8) is unconstitutionally vague because it requires a court to find that a defendant "has exhibited a propensity to commit murder which will probably constitute a continuing threat to society." (Emphasis added.) Dunlap maintains that the use of the word "probably" implies a "preponderance of the evidence" standard rather than a "beyond a reasonable doubt" standard, which is the standard by which an aggravating circumstance must be found. Because the language appears contradictory, Dunlap asserts that the statute is unconstitutionally vague.
Our analysis of a vagueness claim has been stated as follows:
Under the eighth amendment a claim based on vagueness is analyzed by determining whether the challenged aggravating circumstance adequately informs the sentencer what it must find in order to impose the death penalty, or whether it leaves the sentencer with unchanneled discretion to make an arbitrary and capricious decision.
State v. Pizzuto, 119 Idaho 742, 771, 810 P.2d 680, 709 (1991). See also Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). This Court has upheld the constitutionality of I.C. § 19-2515(g)(8) in State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991); State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983); and State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983). In Sivak, the defendant made the same argument as Dunlap now advances, that the word "probably" allows a trial judge to find an aggravating circumstance based on less than a reasonable doubt. However we rejected such an interpretation of I.C. § 19-2515(g)(8), stating:
Reading (f)(8) [now (g)(8)] in its entirety, we fail to see how it can be reasonably argued that the statute could be interpreted to require only a finding based on the preponderance of the evidence, rather than beyond a reasonable doubt, as it expressly states.
. . . . .
The interpretation that appellant urges is contrary to the clear wording of the statute. I.C. § 19-2515(f)(8) merely requires a finding, beyond a reasonable doubt, of the existence within the defendant of a propensity to commit murder likely to cause a threat to society. Thus read, (f)(8) [now (g)(8)] is not unconstitutionally vague.
105 Idaho at 904-05, 674 P.2d at 400-01. For these same reasons, we also reject Dunlap's argument and uphold the constitutionality of I.C. § 19-2515(g)(8).


*791 IV.

CONSTITUTIONALITY OF I.C. § 19-2515(c)
I.C. § 19-2515(c) states:
Where a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the court finds at least one (1) statutory aggravating circumstance. Where the court finds a statutory aggravating circumstance the court shall sentence the defendant to death unless the court finds that mitigating circumstances which may be presented outweigh the gravity of any aggravating circumstances found and make imposition of death unjust.
Dunlap asserts that the statute fails to address the standard by which the sentencing court must weigh the mitigating circumstances against each aggravating circumstance. It is Dunlap's contention that the sentencing court must be able to say beyond a reasonable doubt that the mitigating circumstances do not outweigh the aggravating circumstances, and because I.C. § 19-2515(c) does not require such a finding, it is unconstitutional.
An identical argument was considered and rejected in State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983), wherein we stated:
The "beyond a reasonable doubt" standard applies to the existence of aggravating circumstances, not to the process of weighing them against the mitigating circumstances, which must occur before the sentence is imposed.
105 Idaho at 905, 674 P.2d at 401. We reject the argument raised by Dunlap for the same reason we rejected it in Sivak.

V.

MITIGATING FACTORS
Dunlap contends that the district court incorrectly weighed various mitigating circumstances. Specifically, Dunlap argues that the district court, when weighing the mitigating circumstances against I.C. § 19-2515(g)(7), should have given more weight to Dunlap's mental condition and the fact that Dunlap cooperated with the authorities. Similarly, Dunlap argues that the district court, when weighing the mitigating circumstances against I.C. § 19-2515(g)(8), should have given greater consideration to the fact that Dunlap has no prior felony record and responds favorably to a structured environment.
In State v. Pratt (James), 125 Idaho 546, 873 P.2d 800 (1993), we recently reaffirmed the rule that it is within the discretion of the district court whether or not to impose a sentence of death. "This discretion is a guided discretion, entirely `within the structure established by the legislature....'" Pratt (James), 125 Idaho at 565, 873 P.2d at 819 (citing State v. Sivak, 119 Idaho 320, 326, 806 P.2d 413, 419 (1990)). In this case, the district court determined that there existed two aggravating circumstances beyond a reasonable doubt. The district court then analyzed various mitigating factors and came to a conclusion as to which of the mitigating factors it would weigh against each of the aggravating circumstances. Such a process has been upheld in State v. Pratt (James), 125 Idaho 546, 873 P.2d 800 (1993), and State v. Leavitt, 121 Idaho 4, 822 P.2d 523 (1991). The district court then concluded that the mitigating circumstances did not outweigh each of the aggravating circumstances making the imposition of the death penalty in this case unjust.
Given that the district court followed the sentencing structure set forth by the legislature, we conclude that the district court properly exercised its discretion in arriving at its sentence in this case. State v. Lewis, 336 Idaho 123, 848 P.2d 394 (1993).

VI.

AUTOMATIC REVIEW UNDER I.C. § 19-2827
Pursuant to I.C. § 19-2827(c), this Court is required to independently review the sentence of death to determine: (1) whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether the evidence supports the trial court's finding of a statutory aggravating circumstance enumerated in I.C. § 19-2515; and (3) whether the sentence is excessive *792 or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
We have already determined that the evidence supports the trial court's findings that Dunlap committed felony murder with the specific intent to kill and that Dunlap has a propensity to commit murder which will probably constitute a continuing threat to society. Furthermore, there is no indication that the sentence was a result of passion or prejudice or was given based on an arbitrary factor.
Regarding the third prong of our review, this Court makes a de novo determination of whether the sentence is proportional and just after independently reviewing: (1) the nature of, and the motive for, the crime committed; (2) the heinous nature of the crime; and (3) the nature and character of the defendant. State v. Pratt (James), 125 Idaho 546, 873 P.2d 800 (1993); State v. Hoffman, 123 Idaho 638, 851 P.2d 934 (1993).
In this case, the record shows that, while in Ohio, Dunlap shot and killed Bolanos in the neck and head with a cross-bow. Dunlap then took her car and credit card and headed west. Approximately ten days later, after running out of money, Dunlap robbed a bank in Soda Springs, Idaho. During the course of the robbery, Dunlap pointed a sawed-off shotgun at a range of less than two feet from Crane and pulled the trigger, killing her. A subsequent psychiatric evaluation of Dunlap reveals that he has an explosive personality, and is motivated by rage and anger. The objects of his anger are generally women. He is a threat to society in general and women in particular.
In comparing the nature of the crime and the nature of the defendant in this case with other similar cases,[5] we hold that the sentence *793 of death imposed in this case is not excessive or disproportionate.
The judgment of the district court is affirmed.
TROUT, J., and FULLER, J. Pro Tem., concur.
BISTLINE, Justice, specially concurring.
I concur with the majority's analysis in Part II only because of the rather odd circumstances of the agreement which Dunlap entered into. It is highly questionable as to whether the Ohio murder indictment alone, particularly in light of the presumption of innocence adhering to that Ohio crime, could support a finding beyond a reasonable doubt that Dunlap had committed the Ohio murder and thus that beyond a reasonable doubt he possessed the propensity to murder. However, pursuant to the plea agreement Dunlap agreed to the fact that he had committed the Ohio murder in the event the trial court found the Ohio indictment admissible. With that agreement in place, Dunlap is only positioned to challenge the admissibility of the indictment and related witness statements rather than the weight of the evidence, once admitted. I agree with the majority that the indictment is relevant, although barely, to the sentencing inquiry as to whether Dunlap has the propensity to murder and thus is admissible.
JOHNSON, Justice, concurring and concurring in the result.
I concur in parts I, II, III, IV, and V of the Court's opinion.
I concur in the result of part VI (Automatic Review Under I.C. § 19-2827). The approach I take in determining whether the death sentence imposed in this case is excessive or disproportionate is outlined in my concurring and dissenting opinion in State v. Card, 121 Idaho 425, 448-459, 825 P.2d 1081, 1104-1115 (1992). Appended to my opinion in the present case is an updated summary of the cases I have considered.
The cases I find most similar to this one so far as the crime is concerned are:
1. State v. Card (death penalty imposed).
2. State v. Searcy (determinate life sentence imposed)
3. State v. McKinney (death penalty imposed).
4. State v. Bainbridge (determinate life sentence imposed)
5. State v. Rhoades (Michelbacher and Baldwin cases) (death penalties imposed).
In Searcy and Bainbridge, the circumstances of the defendant were mitigating and seem to explain why the trial court did not impose the death penalty. On the basis of the comparison of Card, McKinney, and Rhoades, I find the death sentence imposed on Dunlap not to be excessive or disproportionate.
The cases I find most similar to this one so far as the circumstances of the defendant are concerned are:
1. State v. Pizzuto (death penalty imposed).
2. State v. Paz (death penalty imposed).
3. State v. Lankford (death penalty imposed).
On the basis of this comparison of these cases in which the circumstances of the defendant are similar to Dunlap, I find the death sentence imposed on Dunlap not to be excessive or disproportionate.


                   APPENDIX TO DUNLAP OPINION OF JOHNSON, J.
CASE NAME               CHARACTERISTICS OF                      CIRCUMSTANCES                         CONVICTION                      DISPOSITION
& CITATION                  DEFENDANT                             OF MURDER                              AND                           BY IDAHO
                                                                                                      SENTENCE BY                       SUPREME
                                                                                                      TRIAL COURT                        COURT
                                                                                                                                          OR
                                                                                                                                       COURT OF
                                                                                                                                        APPEALS
State v. Hoffman,       Antisocial personality and              Defendant and cohorts                 First-degree                    Affirmed.
123 Idaho               low intelligence; problems              took female                           murder. Death



*794
638, 851                with violating law since                victim to remote                      penalty imposed.
P.2d 934                childhood; extensive record             area, where defendant
(1993). 1993            of criminal violence as                 slashed victim's
WL 16387                adult; use and distribution             throat; cohort
                        of drugs; failed to                     stabbed victim; defendant
                        take responsibility or show             and cohort
                        remorse for murder.                     buried victim with
                                                                rocks; crushing
                                                                blow of rock to head
                                                                was cause of death.
State v. Orr,           Drug dealer; involved in                Defendant, woman,                     First-degree                    Affirmed.
123 Idaho 55,           relationship with woman,                and victim travelled                  murder. Sentenced
844 P.2d 684            who had been in relationship            to Idaho from Illinois                to term of
(1992).                 with victim; set up                     to relocate defendant                 life, with 25
                        on drug possession charge               because of                            years fixed.
                        by victim.                              drug possession
                                                                charge; victim purchased
                                                                shotgun for
                                                                defendant; defendant
                                                                shot victim
                                                                with shotgun after
                                                                victim threatened
                                                                woman's life if she
                                                                did not return to Illinois
                                                                with him.
State v. Weinmann,      19 years old when sentenced;            Defendant and cohort                  First-degree                    Affirmed by
122                     raised in foster                        (Brewer) met                          murder. Life                    Court of Appeals.
Idaho 631, 836          care; lived in facility for             victim in park; defendant             sentence, with 25
P.2d 1092 (Ct.          seriously emotionally disturbed         and cohort                            years fixed.
App.1992).              children; undersocialized               accepted victim's offer
                        conduct disorder                        to stay at home
                        with aggressive traits; history         and eat; cohort
                        of antisocial behavior;                 stabbed victim several
                        as adult, committed or                  times with butcher
                        abetted a number of criminal            knife; defendant
                        activities; terminated                  watched passively
                        from job for stealing food;             and did not stop cohort.
                        "rolled' or mugged homosexuals
                        for money; stole
                        automobiles; did not stop
                        cohort from killing and attempting
                        to kill others.
State v. Brewer,        17 years old at time of                 See Weinmann                          First-degree                    Affirmed by
122 Idaho               murder; troubled background;            above; defendant                      murder. Sentenced               Court of Appeals.
213, 832 P.2d           dropped out of                          stabbed victim 11                     to life,
1148 (Ct.App.           high school in tenth grade;             times to take money,                  with 35 years
1992).                  used alcohol, marijuana,                credit cards, and vehicle.            fixed.
                        and other drugs since age
                        14; never held job; supported
                        self by stealing;
                        treated for emotional disturbance
                        and released
                        about one month before
                        murder; charges pending
                        in California for murder
                        and attempted murder.
State v. Thomasson,     17 years old at time of                 Defendant shot and                    Two counts of                   Affirmed.
122                     murders; previously been                killed both of adoptive               first-degree murder.
Idaho 172, 832          in trouble with police.                 parents in                            Sentenced
P.2d 743                                                        home.                                 to two consecutive
(1992).                                                                                               life terms,
                                                                                                      with 20 years
                                                                                                      fixed.



*795
State v.                See Rhoades (Baldwin                    Defendant shot female                 First-degree                    Affirmed.
Rhoades (Michelbacher   case) below.                            victim.                               murder. Death
case), 121 Idaho                                                                                      penalty imposed.
63, 822
P.2d 960
(1991). Second
rehearing
denied 1/1/92.
State v. Card,          28 years old at time of                 After incident with                   Two counts of                   Affirmed.
121 Idaho 425,          murders; never married;                 store clerk, defendant                first-degree murder.
825 P.2d 1081           no children; living with                shot and killed                       Death penalty
(1991).                 mother and step-father;                 couple who were                       imposed.
                        did not graduate from                   parked near a store
                        high school, but obtained               early in the morning
                        GED; periodic employment                newspapers for
                        as janitor, ranch                       their route.
                        hand, and general laborer;
                        previously convicted of
                        reckless driving and three
                        charges of DUI; problem
                        with marijuana and alcohol
                        in high school; when
                        17 years old became reclusive,
                        heard voices, acted
                        scared; mental problems;
                        spent time in psychiatric
                        facility for psychotic disorder
                        a few years before
                        murders; determined
                        mentally incompetent after
                        murders; diagnosed
                        schizophrenic; ruled competent
                        before trial.
State v. Leavitt,       Comes from law-abiding                  Defendant slashed                     First-degree                    Affirmed.
121 Idaho               family; father, husband,                and stabbed female                    murder. Death
4, 822 P.2d             and son; steadily employed;             victim with knife 15                  sentence reversed;
523 (1991) on           suffers from intermittent               separate times and                    case remanded
appeal after            explosive disorder;                     removed victim's                      for resentencing.
remand in 116           lengthy criminal record,                sexual organs removed                 Death penalty
Idaho 285, 775          but no prior felony conviction;         by slashing.                          imposed on resentencing.
P.2d 599                probably previously
(1989).                 committed rape and arson;
                        morbid sexual curosity;
                        frequent possession and
                        use of knives; use of
                        knives to increase satisfaction
                        during sexual intercourse;
                        no remorse or excuse
                        for murder; model
                        prisoner, using time to express
                        self through artistry
                        and poetry.
State v. Enno,          18 years old male, suffered             Defendant and victim                  First-degree                    Affirmed.
119 Idaho 392,          to a moderate degree form               were drinking                         murder. Sentenced
807 P.2d 610            an anti-social personality              together at a bar after               to fixed
(1991).                 disorder, severe alcoholic,             which they traveled                   life.
                        troubled childhood.                     to a remote
                                                                area where victim
                                                                apparently made
                                                                sexual advances toward
                                                                defendant.
                                                                Victim taunted defendant
                                                                after he refused
                                                                her advances



*796
                                                                which prompted defendant
                                                                to choke victim
                                                                until blood came
                                                                out of her mouth.
                                                                During the ensuing
                                                                struggle victim and
                                                                defendant ended up
                                                                outside of the automobile
                                                                after which
                                                                defendant struck
                                                                victim with a board
                                                                and later repeatedly
                                                                ran over her with
                                                                the automobile. Defendant
                                                                then burned
                                                                the body of the victim
                                                                with lighter
                                                                fluid and charcoal.
State v.                Thirty-one-year-old male;               Kidnapped female                      Convicted of                    Affirmed.
Rhoades, 120            unmarried; lived with                   convenience store                     first-degree murder,
Idaho 795, 820          parents; dropped out of                 clerk, drove to secluded              kidnapping,
P.2d 665                school in ninth grade;                  area; attempted                       robbery and use
(1991).                 physical problems caused                to attack                             of a firearm.
(Baldwin                by polio; worked in processing          her; and later shot                   Death penalty
case)                   plant and drywall                       her as she was                        imposed.
                        construction; abused alcohol            crawling away; left
                        and drugs; having                       victim for dead.
                        physical difficulties on
                        night of arrest; assumed
                        to be result of drugs or
                        intoxication.
State v. Pizzuto,       Previously convicted of                 Defendant robbed                      First-degree                    Affirmed.
119 Idaho               criminal sexual conduct                 and murdered woman                    murder, felony
742, 810 P.2d           and manslaughter in other               and her adult                         murder, robbery.
680 (1991);             states. Sociopath exhibiting            nephew in their cabin                 Death sentence
overruled by            "explosive features,"                   with a hammer;                        imposed.
State v. Card,          violent individual, expressed           one of the victims
121 Idaho 425,          no remorse, history                     was also shot, victims
825 P.2d 1081           of violent behavior.                    were burried in
(1991).                                                         a shallow grave near
                                                                the scene of the murders.
State v. Searcy,        Troubled childhood, addiction           Defendant planned                     First-degree                    Affirmed by
120 Idaho               to cocaine, psychiatric                 robbery of victim's                   murder, and robbery.            Court of Appeals.
882, 820 P.2d           evidence indicating lack of             grocery store in order                Sentenced
1239 (Ct.App.           mental responsibility.                 to get money to                       to determinate
1991), appeal           Committed various crimes                buy cocaine. Defendant                life sentence on
after remand            to support chemical dependency.         hid in store                          first-degree murder.
in 118 Idaho                                                    where he was later                    On remand,
632, 798 P.2d                                                   confronted by victim,                 from first
914 (1990).                                                     a struggle followed                   appeal, determinate
                                                                during which                          life sentence
                                                                defendant shot victim                 imposed.
                                                                in the stomach.
                                                                Defendant told victim
                                                                that if she
                                                                opened the safe, he
                                                                would call an ambulance.
                                                                Victim
                                                                opened safe after
                                                                which defendant
                                                                placed a rifle to her
                                                                head and shot and
                                                                killed her.



*797
State v. Paz,           Prior manslaughter conviction           Shot and killed victim               First Degree                   Affirmed.
118 Idaho 542,          in Oregon, showed                       in restaurant                         Murder. Death
798 P.2d 1              no rehabilitation after previous        after earlier engaging                penalty imposed.
(1990).                 fines, probation, incarceration         in verbal exchange
                        and parole,                             with victim
                        high probability that Paz               and two of victim's
                        would remain unpredictable              companions; companions
                        and irrational in                       seriously
                        overreacting to confrontation           injured in shooting.
                        and likely to kill fellow
                        inmates if imprisoned.
State v.                Chemical dependency, dominated          Body of victim was                    First-degree                    Affirmed.
Smith, 117              by his brother                          discovered in a partially             murder, robbery,
Idaho 891, 792          (deceased accomplice);                  burned stolen                         and third-degree
P.2d 916                various prior criminal activity         Cadillac. Later, .22                  arson. Fixed
(1990).                 and outstanding                         and .38 caliber bullets               life sentence on
                        warrants.                               were removed                          conviction of
                                                                from the victim's                     first-degree murder
                                                                body and finger-prints                and consecutive
                                                                of defendant                          fixed-life
                                                                were found in the                     sentence on robbery
                                                                Cadillac.                             conviction.
State v. Bainbridge,    Evidence was admitted indicating        Victim, a female                      First-degree                    Affirmed.
117                     defendant's behavior                    cashier who was acquainted            murder and robbery.
Idaho 245, 787          and thinking were                       with defendant                        Sentenced
P.2d 231                suggestive of organic brain             and Sivak was                         to two consecutive
(1990); 108             disfunction possibly                    shot several times                    fixed-life
Idaho 273, 698          caused or enhanced by a                 and stabbed numerous                  sentences.
P.2d 335                severe head injury from a               times while
(1985).                 motorcycle accident, defendant          working at gas station,
                        was viewed as being                     victim was also
                        good natured and eager to               sexually assaulted,
                        please, hypersuggestable to             defendant along
                        the influence of others,                with co-defendant
                        reading and writing problem             (Sivak) robbed store.
                        although not retarded,
                        10th grade education.
State v. Lankford,      Aggressive antisocial personality       Defendant and                         Two counts of                   Affirmed.
116 Idaho               prone to violence.                      brother robbed and                    first-degree murders.
860, 781                                                        murdered retired                      Death
P.2d 197                                                        marine officer and                    penalty imposed.
(1989).                                                         wife while camping
                                                                in Idaho County,
                                                                victims held at gunpoint
                                                                and killed
                                                                with multiple blows
                                                                to the skull from
                                                                night stick.
McKinney v.             Defendant claimed he was                Defendant repeatedly                  First-degree                    Affirmed.
State, 115 Idaho        physically and sexually                 shot victim, a recent                 murder, conspiracy
1125, 772               abused by his father as a               acquaintance,                         to commit
P.2d 1219               child.                                  with .22 caliber pistol               murder, robbery;
(1989); 107                                                     after driving to                      and conspiracy
Idaho 180, 687                                                  an abandoned gravel                   to commit
P.2d 570                                                        pit presumably                        robbery.
(1984).                                                         for target practice,                  Death penalty
                                                                victim was also                       imposed.
                                                                robbed and car was
                                                                stolen. The killing
                                                                was done in a cold-blooded
                                                                and callous
                                                                fashion, sole motive
                                                                was monetary gain,
                                                                victim shot in the
                                                                body and killed, execution
                                                                style.



*798
State v. Fetterly,      Prior criminal record.                  Along with co-defendant               First-degree                    Affirmed.
115 Idaho                                                       Windsor, was                          murder, burglary,
231, 766                                                        convicted of first-degree             and grand
P.2d 701                                                        murder, burglary                      theft. Death
(1988); 109                                                     and grand theft                       penalty imposed.
Idaho 766, 710                                                  for the robbery and
P.2d 1202                                                       stabbing death of the
(1985).                                                         victim who they later
                                                                dumped in the
                                                                Snake River.
State v. Windsor,       No formal criminal record               Along with co-defendant               First-degree                    Sentence of
110 Idaho               or history of prior criminal            Fetterly, was                         murder. Death                   death vacated
410, 716 P.2d           activity, defendant cooperative,        convicted of first-degree             penalty imposed.                because sentence
1182 (1985).            skills and ability                      murder, burglary                                                      was excessive
                        which indicate defendant                and grand theft                                                       and disproportionate.
                        may ultimately be                       for the robbery and
                        capable of maintaining                  stabbing death of the
                        employment and functioning              victim who they later
                        as a productive member                  dumped in the
                        of society, troubled                    Snake River.
                        childhood.                              Windsor did not
                                                                commit actual act of
                                                                stabbing victim.
State v. Scroggins,     No history of violent criminal          Defendant and co-defendant            First-degree                    Sentence vacated,
110 Idaho               conduct, inadequate                     (Beam)                                murder; attempted               sentence of
380, 716                upbringing, age 18 at the               were involved in the                  rape.                           death was excessive
P.2d 1152               time of crime (mental age               rape and subsequent                   Death penalty                   and disproportionate
(1985).                 was 13.8 years), failed to              murder of a 13-year-old               imposed.                        to penalty imposed
                        develop mature responses                female victim,                                                        in similar
                        to stressful situations.                the victim was                                                        cases.
                                                                drowned and throat
                                                                was slashed, jury
                                                                indicated that defendant
                                                                committed only
                                                                attempted rape and
                                                                did not directly
                                                                commit the crime of
                                                                murder, defendant
                                                                reported crime to the
                                                                police.
State v.                Defendant engaged in                    Defendant convicted                   Murder by torture               Affirmed.
Stuart, 110             abuse of other women and                in the beating death                  in first-degree.
Idaho 163, 715          their minor children prior              of a three-year-old                   Death penalty
P.2d 833                to relationship with present            boy, the son of his                   imposed.
(1985).                 girlfriend and her son,                 live-in girlfriend, evidence
                        defendant had committed                 of numerous
                        at least three prior rapes              incidences of physical
                        along with numerous examples            abuse of victim
                        of other violent behavior.              prior to death.
State v. Beam,          The defendant abused                    The victim, a thirteen-year-old       First-degree                    Affirmed.
109 Idaho 616,          drugs, was on parole for                girl,                                 murder; rape.
710 P.2d 526            burglary when the murder                was handcuffed and                    Death penalty
(1985).                 was committed, had been                 raped, semen was                      imposed.
                        exposed to and participated             found in her vagina
                        in prior sexually deviant               and rectum, the victim's
                        behavior, had tortured                  throat was
                        animals, was impulsive,                 slashed and the
                        and lacked any adequate                 cause of death was
                        conscience.                             listed as drowning.



*799
State v. Aragon,        At the time of the incident             Victim, eight-month-old               First-degree                    Affirmed.
107 Idaho               the defendant was calm,                 child and daughter                    murder. Death
358, 690 P.2d           refused to aid the victim               of defendant's female                 penalty imposed.
293 (1984).             or seek help and began                  roomate died
                        planning a cover-up of his              from severe blows to
                        involvement, passed criminal            the head administered
                        record including                        by defendant
                        charges of child abuse and              while victim was in
                        assault with a deadly                   bathtub.
                        weapon, lack of remorse
                        over death of victim, no
                        further description provided.
State v. Paradis,       Member of Spokane motorcycle            Male and female                       First-degree                    Affirmed.
106 Idaho               gang, no further                        victims, who both                     murder. Death
117, 676                description provided.                   were acquainted                       penalty imposed.
P.2d 31 (1983).                                                 with co-defendants,
                                                                were seen together
                                                                before their van was
                                                                later seen driving
                                                                up a sparsely populated
                                                                mountain road
                                                                in Idaho. Three
                                                                men were later seen
                                                                leaving the sparsely
                                                                populated area, included
                                                                in the three
                                                                men was defendant.
                                                                The bodies of victims
                                                                were later
                                                                found. Male had
                                                                been beaten severely
                                                                around the head, female
                                                                had been
                                                                strangled and placed
                                                                in a stream bed, it
                                                                was determined that
                                                                male was killed in
                                                                Washington while
                                                                female was killed in
                                                                Idaho. Defendant
                                                                was acquitted of the
                                                                murder of male and
                                                                extradited to Idaho
                                                                for the murder of the
                                                                female.
State v. Gibson,        Extensive prior criminal                See Paradis above,                    First-degree                    Affirmed.
106 Idaho               record, capable of manipulation,        defendant acquitted                   murder. Death
54, 675 P.2d            remorse is questionable,                in murder of male,                    penalty imposed.
33 (1983).              background includes                     extradited to Idaho
                        extensive use of                        for murder of female.
                        drugs and/or alcohol, not
                        able to cope with pressure
                        and may act out against
                        society again, dishonorable
                        discharge from service,
                        uncooperative while
                        on prior probation.
State v.                Defendant previously convicted          While working as a                    First-degree                    Affirmed.
Creech, 105             of other murders,                       janitor in prison,                    murder. Death
Idaho 362, 670          exhibited utter disregard               defendant engaged                     penalty imposed.
P.2d 463                for human life, propensity              in argument with a
(1983).                 to commit murder, under                 fellow inmate. Defendant
                        sentence for first-degree               struck fellow
                        murder at the time of his               inmate with



*800
                        actions.                                sock containing batteries
                                                                causing severe
                                                                head injury and ultimate
                                                                death of victim.
State v. Major,         Married, two children,                  Defendant and male                    First-degree                    Affirmed.
105 Idaho               heroin user.                            victim had been                       murder. Fixed
4, 665 P.2d                                                     drinking together in                  life.
703 (1983).                                                     a local bar, defendant
                                                                and victim left
                                                                and went to victim's
                                                                home, the body of
                                                                the victim was
                                                                found approximately
                                                                three days later
                                                                in his home, victim
                                                                died from multiple
                                                                stab wounds including
                                                                numerous slashes
                                                                to the throat. Defendant
                                                                and his wife
                                                                fled to California,
                                                                were later arrested
                                                                and extradited to
                                                                Idaho.
State v.                Wife of victim, user of prescription    Although it was initially             First-degree                    Affirmed.
Mitchell, 104           drugs and alcohol.                      suspected that                        murder. Indeterminate
Idaho 493, 660                                                  victim had been                       life
P.2d 1336                                                       murdered by strangulation             sentence.
(1983).                                                         during a
                                                                burglary of victim
                                                                and defendant's
                                                                home, defendant later
                                                                convicted in the
                                                                contract killing of
                                                                her husband.
State v. Needs,         Wife of victim, prior evidence          Body of victim discovered             First-degree                    Affirmed.
99 Idaho 883,           of violent activity                     partially                             murder. Sentence
591 P.2d 130            directed at victim.                     burnt, without head                   of life imprisonment.
(1979).                                                         and arms, wrapped
                                                                in a bed sheet and
                                                                covered by a door.
                                                                Death of victim
                                                                caused by either gun
                                                                shots, decapitation,
                                                                or a slit throat.

NOTES
[1]  The district court also found beyond a reasonable doubt that by the murder, or circumstances surrounding its commission, Dunlap exhibited an utter disregard for human life. I.C. § 19-2515(g)(6). However, due to the Ninth Circuit's ruling that this section was unconstitutional, the district court did not rely on or use this aggravating circumstance for imposing the death penalty. See Creech v. Arave, 947 F.2d 873 (9th Cir. 1991), cert. granted, ___ U.S. ___, 112 S.Ct. 2963, 119 L.Ed.2d 585 (1992). The United States Supreme Court has since upheld the constitutionality of I.C. § 19-2515(g)(6) in Arave v. Creech, ___ U.S. ___, 113 S.Ct. 1534, 123 L.Ed.2d 188. However, because the district court did not rely on I.C. § 19-2515(g)(6) for imposing the death penalty, there are no issues involving this section on this appeal.
[2]  18-4003. Degrees of murder. 

(d) Any murder committed in the perpetration of, or attempt to perpetrate, aggravated battery on a child under twelve (12) years of age, arson, rape, robbery, burglary, kidnapping or mayhem is murder of the first degree.
[3]  The plea agreement states: "If the [district] Court determines that said evidence, information, witness statements, or statements of Defendant are admissible in aggravation of sentence, regardless of Defendant's objection, Defendant does hereby agree and admit that he did feloniously kill Belinda Bolanos, a human being, on October 6, 1991, in Hamilton County, Ohio, by shooting her in the throat and in the head with a cross bow. The admission of Defendant as to the killing of Belinda Bolanos, as contained in this paragraph, is admissible solely for purposes of this Plea Agreement and in sentencing on Count I of the Criminal Information filed in this case charging the Defendant with Murder in the First Degree."
[4]  The Bolanos admission, although admissible for purposes of determining Dunlap's propensity to kill under I.C. § 19-2515(g)(8), is not admissible against Dunlap for purposes of any criminal proceeding in Ohio. The plea agreement states: "This admission shall not be used against the Defendant in the criminal proceeding pending in the State of Ohio as described in paragraph 11 of this Plea Agreement. A copy of the agreement to this effect executed by the Prosecuting Attorney for Hamilton County, Ohio, is attached hereto."
[5]  State v. Pratt (James), 125 Idaho 546, 873 P.2d 800 (1993); State v. Pratt (Joseph), 125 Idaho 594, 873 P.2d 848 (1993); State v. Hoffman, 123 Idaho 638, 851 P.2d 934; State v. Orr, 123 Idaho 55, 844 P.2d 684 (1992); State v. Weinmann, 122 Idaho 631, 836 P.2d 1092 (Ct.App.1992); State v. Thomasson, 122 Idaho 172, 832 P.2d 743 (1992); State v. Brewer, 122 Idaho 213, 832 P.2d 1148 (Ct.App.1992); State v. Card, 121 Idaho 425, 825 P.2d 1081 (1991), cert. denied, ___ U.S. ___, 113 S.Ct. 321, 121 L.Ed.2d 241 (1992); State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1268, 117 L.Ed.2d 495 (1992), overruled in part by Card, 121 Idaho at 432, 825 P.2d at 1088; State v. Enno, 119 Idaho 392, 807 P.2d 610 (1991); State v. Sivak, 119 Idaho 320, 806 P.2d 413 (1990); State v. Paz, 118 Idaho 542, 798 P.2d 1 (1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2911, 115 L.Ed.2d 1074 (1991), overruled in part by Card, 121 Idaho at 432, 825 P.2d at 1088; State v. Smith, 117 Idaho 891, 792 P.2d 916 (1990); State v. Lankford, 116 Idaho 860, 781 P.2d 197 (1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990); State v. Leavitt, 116 Idaho 285, 775 P.2d 599, cert. denied, 493 U.S. 923, 110 S.Ct. 290, 107 L.Ed.2d 270 (1989), appeal after remand, 121 Idaho 4, 822 P.2d 523 (1991), cert. denied, ___ U.S. ___, 113 S.Ct. 460, 121 L.Ed.2d 368 (1992); State v. Charboneau, 116 Idaho 129, 774 P.2d 299, cert. denied, 493 U.S. 922, 923, 110 S.Ct. 287, 290, 107 L.Ed.2d 267 (1989), overruled in part by Card, 121 Idaho at 432, 825 P.2d at 1088; McKinney v. State, 115 Idaho 1125, 772 P.2d 1219 (1989), cert. denied, 497 U.S. 1031, 110 S.Ct. 3292, 111 L.Ed.2d 800 (1990); State v. Fetterly, 115 Idaho 231, 766 P.2d 701 (1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3262, 106 L.Ed.2d 607 (1989); State v. Scroggins, 110 Idaho 380, 716 P.2d 1152 (1985), cert. denied, 479 U.S. 989, 107 S.Ct. 582, 93 L.Ed.2d 585 (1986); State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1985), cert. denied, 479 U.S. 964, 107 S.Ct. 463, 93 L.Ed.2d 408 (1986); State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1985), cert. denied, 479 U.S. 870, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986); State v. Beam, 109 Idaho 616, 710 P.2d 526 (1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2260, 90 L.Ed.2d 704 (1986); State v. Stuart, 110 Idaho 163, 715 P.2d 833 (1985); State v. Bainbridge, 108 Idaho 273, 698 P.2d 335 (1985), appeal after remand, 117 Idaho 245, 787 P.2d 231 (1990); State v. Aragon, 107 Idaho 358, 690 P.2d 293 (1984); State v. McKinney, 107 Idaho 180, 687 P.2d 570 (1984); State v. Paradis, 106 Idaho 117, 676 P.2d 31 (1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3592, 82 L.Ed.2d 888 (1984); State v. Gibson, 106 Idaho 54, 675 P.2d 33 (1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3592, 82 L.Ed.2d 888 (1984); State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984); State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 722 (1984); State v. Major, 105 Idaho 4, 665 P.2d 703 (1983); State v. Mitchell, 104 Idaho 493, 660 P.2d 1336, cert. denied, 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308 (1983); State v. Carter, 103 Idaho 917, 655 P.2d 434 (1981); State v. Olin, 103 Idaho 391, 648 P.2d 203 (1982); State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981), appeal after remand, 104 Idaho 809, 663 P.2d 1111 (1983); State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980); State v. Padilla, 101 Idaho 713, 620 P.2d 286 (1980); State v. Fuchs, 100 Idaho 341, 597 P.2d 227 (1979); State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979); State v. Lindquist, 99 Idaho 766, 589 P.2d 101 (1979), appeal after remand, 101 Idaho 688, 619 P.2d 1141 (1980).
