               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 37995

STATE OF IDAHO,                                 )    2012 Unpublished Opinion No. 305S
                                                )
       Plaintiff-Respondent,                    )    Filed: May 4, 2012
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
MARJORY ANN BARNES,                             )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Defendant-Appellant.                     )    BE CITED AS AUTHORITY
                                                )
                                                )    SUBSTITUTE OPINION
                                                )    THE COURT’S PRIOR
                                                )    OPINION DATED
                                                )    JANUARY 4, 2012, IS
                                                )    HEREBY WITHDRAWN
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. Fred M. Gibler, District Judge.

       Judgments of conviction for conspiracy to traffic in methamphetamine by
       manufacture; trafficking in methamphetamine by manufacture; and possession of
       a controlled substance, pseudoephedrine, with intent to manufacture
       methamphetamine, affirmed.

       Greg S. Silvey, Star, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Marjory Ann Barnes appeals from her judgments of conviction for conspiracy to traffic in
methamphetamine by manufacture; trafficking in methamphetamine by manufacture; and
possession of a controlled substance, pseudoephedrine, with intent to manufacture
methamphetamine.     Specifically, Barnes argues that a fatal variance occurred between the
information alleging conspiracy to commit the crime of trafficking in methamphetamine by
manufacture and the jury instructions given at her trial. Barnes also contends that she was
subjected to multiple convictions and punishments for the same offense under the Double


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Jeopardy Clause. For the reasons set forth below, we affirm her judgments of conviction for
conspiracy to traffic in methamphetamine by manufacture, trafficking in methamphetamine by
manufacture, and possession of a controlled substance, pseudoephedrine, with intent to
manufacture methamphetamine.
                                                 I.
                                  FACTS AND PROCEDURE
       Following a report of concerns that Barnes and her boyfriend, Gregory Klundt, 1 were
manufacturing methamphetamine in their shared residence, law enforcement obtained a warrant
to search their house. The search revealed a number of items associated with the manufacture of
methamphetamine. The state charged Barnes with conspiracy to traffic in methamphetamine by
manufacture, I.C. §§ 37-2732B(a)(3) and 18-204;             trafficking in methamphetamine by
manufacture, I.C. §§ 37-2732B(a)(3) and 18-204; and possession of a controlled substance,
pseudoephedrine, with intent to manufacture methamphetamine, I.C. § 37-2732(a)(1)(A). After
trial, a jury found Barnes guilty. Barnes was sentenced to concurrent determinate terms of five
years for each count. Barnes appeals. 2
                                                 II.
                                            ANALYSIS
A.     Variance
       Barnes argues there was a fatal variance between the information charging her with
conspiracy to traffic in methamphetamine by manufacture and the elements jury instruction
given on the charge at trial. The information, as it pertained to Barnes, stated:
               That the Defendant, Marjory Ann Barnes, beginning on or about January,
       2009, and ending September, 2009, in the County of Kootenai, State of Idaho, did
       unlawfully, wilfully and knowingly conspire and/or agree with Gregory Klundt to
       commit the crime of trafficking in methamphetamine by manufacture, in violation
       of I.C. § 37-2732B(a)(3)
                                        OVERT ACTS



1
       Klundt was also charged with the same crimes. The district court joined Barnes’s and
Klundt’s cases for trial. However, the cases were not consolidated on appeal.
2
       Barnes was also found guilty of manufacture of a controlled substance where a child is
present, I.C. § 37-2737A, and was sentenced to a consecutive indeterminate two-year term.
However, she does not challenge this judgment of conviction or sentence on appeal.

                                                 2
              In furtherance of the conspiracy and to effect the objects thereof, the
       following overt acts, among others, were committed within Kootenai County:
              1.     On or about January 15, 2009, Marjory Barnes purchased
       pseudoephedrine in Rathdrum with the intent to manufacture methamphetamine.
              ....
              3.     On or about February 1, 2009, Marjory Barnes purchased
       pseudoephedrine from Walgreens with the intent to manufacture
       methamphetamine.
              ....
              5.     On or about February 25, 2009, Marjory Barnes purchased
       pseudoephedrine from Walgreens with the intent to manufacture
       methamphetamine.
              ....
              10.    On or about April 15, 2009, Marjory Barnes purchased
       pseudoephedrine from Well Life with the intent to manufacture
       methamphetamine.

       At trial, the district court provided two jury instructions regarding the charge of
conspiracy to traffic in methamphetamine by manufacture. Instruction 6 stated that Barnes was
charged with conspiracy to traffic in methamphetamine and then restated, verbatim, the overt
acts contained in the information. Instruction 27 laid out the elements of the crime of conspiracy
to traffic in methamphetamine by manufacture:
               In order for the defendant to be guilty . . . the state must prove each of the
               following:
               1.     beginning on or about January, 2009, and ending September, 2009;
               2.     in the State of Idaho
               3.     the defendant, MARJORY ANN BARNES, and Gregory Klundt
                      agreed;
               4.     to commit the crime of Trafficking in Methamphetamine by
                      manufacturing;
               5.     the defendant intended that the crime would be committed;
               6.     one of the parties to the agreement performed at least one overt
                      act;
               7.     such act was done for the purpose of carrying out the agreement.

(Emphasis added.)
       Barnes argues the district court’s elements instruction did not limit the state in its attempt
to prove conspiracy to traffic in methamphetamine by manufacture to relying only on the acts
described in the information. Barnes contends the jury was erroneously instructed that it could
find her guilty of the charge based on any overt act shown at trial which would have proven a
conspiracy. Barnes asserts that this variance was fatal given that testimony at trial demonstrated


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Barnes asked her daughter to purchase cold medicine which contained pseudoephedrine; the
residence in which Barnes lived contained agents, such as solvents and matchbooks with the
striker plates removed, used to make methamphetamine; and Barnes purchased iodine nine
minutes after Klundt purchased cold medicine containing pseudoephedrine. Barnes reasons that
she was not given notice of the possibility of having to defend against these scenarios at trial
because they were not listed in the information.
       Barnes did not object to the alleged variance in the court below. Generally, issues not
raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192,
195, 824 P.2d 123, 126 (1992). Idaho decisional law, however, has long allowed appellate
courts to consider a claim of error to which no objection was made below if the issue presented
rises to the level of fundamental error. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285
(2007); State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971). In State v. Perry, 150
Idaho 209, 245 P.3d 961 (2010), the Idaho Supreme Court clarified the definitions it had
previously utilized to describe what may constitute fundamental error, including those regarding
jury instructions which were not objected to at trial. The Perry Court held that when a jury
reached its verdict based on erroneous instructions an appellate court must generally vacate and
remand the decision of the lower court. Id. at 228, 245 P.3d at 980. However, in the limited
instance where the jury received proper instruction on all but one element of an offense, and
where a reviewing court concludes beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence such that the jury verdict would have been
the same absent the error, the erroneous instruction is properly found to be harmless. Id. If a
rational jury could have found that the state failed to prove the omitted element then the appellate
court must vacate and remand. Id.
       The existence of an impermissible variance between a charging instrument and the jury
instructions is a question of law over which we exercise free review. State v. Sherrod, 131 Idaho
56, 57, 951 P.2d 1283, 1284 (Ct. App. 1998). Our task in resolving the issue presented is two-
fold. First, we must determine whether there is a variance between the information used to
charge Barnes with conspiracy to traffic in methamphetamine by manufacture and the
instructions presented to the jury. See State v. Brazil, 136 Idaho 327, 329, 33 P.3d 218, 220 (Ct.
App. 2001). Second, if a variance exists, we must examine whether it rises to the level of
prejudicial error requiring reversal of the conviction. Id. A charging instrument meets the basic


                                                   4
functions of the pleading requirement if it fairly informs the defendant of the charges against
which he or she must defend and enables him or her to plead an acquittal or conviction in bar of
future prosecutions for the same offense. United States v. Bailey, 444 U.S. 394, 395 (1980). A
variance is fatal if it amounts to a constructive amendment. State v. Jones, 140 Idaho 41, 49, 89
P.3d 881, 889 (Ct. App. 2003). A constructive amendment occurs if a variance alters the
charging document to the extent that the defendant is tried for a crime of a greater degree or a
different nature. Id. In sum, a variance between a charging instrument and a jury instruction
necessitates reversal only when it deprives the defendant of the right to fair notice or leaves him
or her open to the risk of double jeopardy. State v. Windsor, 110 Idaho 410, 417-18, 716 P.2d
1182, 1189-90 (1985); Brazil, 136 Idaho at 330, 33 P.3d at 221. A review of whether the
defendant was deprived of his or her right to fair notice requires the court to determine whether
the record suggests the possibility that the defendant was misled or embarrassed in the
preparation or presentation of his or her defense. Brazil, 136 Idaho at 330, 33 P.3d at 221.
       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).          We consider, therefore, whether Instruction 6 and
Instruction 27, taken together, created a variance from the information. Although Instruction 27
uses broader language regarding overt acts than the information, it must be read in conjunction
with the overt acts listed in Instruction 6. The overt acts listed in Instruction 6 mirror the acts
listed in the information. It would be needlessly redundant to require that the overt acts listed in
Instruction 6 be listed again in Instruction 27. We presume that the jury followed the district
court’s instructions. See State v. Kilby, 130 Idaho 747, 751, 947 P.2d 420, 424 (Ct. App. 1997);
State v. Hudson, 129 Idaho 478, 481, 927 P.2d 451, 454 (Ct. App. 1996). Therefore, we assume
that the jury applied the overt acts laid out in Instruction 6 when determining whether Barnes
was guilty of conspiracy to traffic in methamphetamine by manufacture. Accordingly, there was
no variance between the information used to charge Barnes with conspiracy to traffic in
methamphetamine by manufacture and the instructions presented to the jury.
       Even if a variance existed, the error was harmless because we conclude beyond a
reasonable doubt that the overt act elements listed in the information were uncontested and
supported by overwhelming evidence at trial. The state presented substantial evidence at trial
proving the specific acts alleged in the information.        Several pharmacists and pharmacy


                                                 5
technicians testified they were required to keep a log of customers who purchase cold medication
containing pseudoephedrine. The logs were admitted into evidence. The logs demonstrated that
Barnes bought cold medication containing pseudoephedrine on the dates and at the places listed
in the information. Thus, a rational jury could have found that the state proved these acts at trial.
In addition, Barnes did not argue at trial that she did not purchase pseudoephedrine. Rather, she
defended against the charges by implying she bought the cold medication for a legal purpose.
Thus, Barnes was not deprived of her right to fair notice and was not misled or embarrassed in
the preparation of her defense. Therefore, we hold that, even if we assumed there was a
variance, the error was harmless.
B.     Double Jeopardy
       Barnes argues that she was subjected to multiple convictions and punishments in
violation of the Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution and Article 1, Section 13 of the Idaho Constitution because possession of a
controlled substance, pseudoephedrine, with intent to manufacture methamphetamine, I.C. § 37-
2732(a)(1)(A), is a lesser included offense of trafficking in methamphetamine by manufacture.
I.C. §§ 37-2732B(a)(3), 18-204. Barnes did not, however, raise the issue of double jeopardy in
the court below.
       Generally, issues not raised below may not be considered for the first time on appeal.
Fodge, 121 Idaho at 195, 824 P.2d at 126. Idaho decisional law, however, has long allowed
appellate courts to consider a claim of error to which no objection was made below if the issue
presented rises to the level of fundamental error. See Field, 144 Idaho at 571, 165 P.3d at 285;
Haggard, 94 Idaho at 251, 486 P.2d at 262. In Perry, 150 Idaho 209, 245 P.3d 961, the Idaho
Supreme Court abandoned the definitions it had previously utilized to describe what may
constitute fundamental error. The Perry Court held that an appellate court should reverse an
unobjected-to error when the defendant persuades the court that the alleged error: (1) violates
one or more of the defendant’s unwaived constitutional rights; (2) is clear or obvious without the
need for reference to any additional information not contained in the appellate record; and
(3) affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 978.
       The Double Jeopardy Clause of the United States and Idaho Constitutions provides that
no person shall be twice put in jeopardy for the same offense. The Double Jeopardy Clause of
the United States and Idaho Constitutions affords a defendant three basic protections. It protects


                                                 6
against a second prosecution for the same offense after acquittal, a second prosecution for the
same offense after conviction, and multiple criminal punishments for the same offense. Schiro v.
Farley, 510 U.S. 222, 229 (1994); State v. McKeeth, 136 Idaho 619, 624, 38 P.3d 1275, 1280
(Ct. App. 2001). Whether a defendant’s prosecution complies with the constitutional protection
against being placed twice in jeopardy is a question of law over which we exercise free review.
State v. Santana, 135 Idaho 58, 63, 14 P.3d 378, 383 (Ct. App. 2000).
       There are two theories under which a particular offense may be determined to be a lesser
included offense of a charged offense. State v. Flegel, 151 Idaho 525, 527, 261 P.3d 519, 521
(2011). The first theory is referred to as the statutory theory. Id. We apply the test which
originated in Blockburger v. United States, 284 U.S. 299 (1932) to determine whether an offense
is a lesser included offense under the statutory theory. The Blockburger test provides that, where
the same act or transaction constitutes a violation of two distinct statutory provisions, the test to
be applied to determine whether there have been two offenses or only one for double jeopardy
purposes is whether each statutory provision requires proof of an additional fact which the other
does not. Id. at 304. If two offenses have been determined to be one offense under the
Blockburger test, then convicting and punishing a defendant for both offenses is a violation of
the Double Jeopardy Clause. Brown v. Ohio, 432 U.S. 161, 168-69 (1977).
       Applying the Blockburger test in this case, we conclude that possession of a controlled
substance, pseudoephedrine, with intent to manufacture methamphetamine and trafficking in
methamphetamine by manufacture constitute two separate offenses because each crime requires
proof of at least one element that the other does not. Possession of a controlled substance with
intent to manufacture methamphetamine requires, among other elements, that a person possess a
schedule I or II controlled substance--in this case pseudoephedrine. I.C. § 37-2732(a)(1)(A).
Trafficking in methamphetamine by manufacture does not contain this element. See I.C. § 37-
2732B(a)(3). Trafficking in methamphetamine by manufacture requires, among other elements,
that a person knowingly manufacture methamphetamine. I.C. § 37-2732B(a)(3). Possession of a
controlled substance, pseudoephedrine, with intent to manufacture methamphetamine does not
contain this element.    See I.C. § 37-2732(a)(1)(A).      Thus, the crimes of possession of a
controlled substance, pseudoephedrine, with intent to manufacture methamphetamine and
trafficking in methamphetamine by manufacture constitute two separate offenses under the




                                                 7
Blockburger test because each contains an element that the other does not. Therefore, Barnes
has failed to demonstrate that she was subjected to double jeopardy under the statutory theory.
       The second double jeopardy theory is called the pleading theory. Flegel, 151 Idaho at
529, 261 P.3d at 523. This theory holds that an offense is an included offense if it is alleged in
the information as a means or element of the commission of the greater offense. Id.; see also
State v. Thompson, 101 Idaho 430, 435, 614 P.3d 970, 975 (1980); State v. McCormick, 100
Idaho 111, 115, 594 P.2d 149, 153 (1979); State v. Hall, 88 Idaho 117, 123, 397 P.2d 261, 263-
64 (1964); State v. Anderson, 82 Idaho 293, 301, 352 P.2d 972, 977 (1960). For example, in
State v. Corbus, 151 Idaho 368, 375, 256 P.3d 776, 783 (Ct. App. 2011), this Court applied the
pleading theory and concluded that the language of the information charging Corbus revealed
that reckless driving was charged as the means of committing the crime of eluding a police
officer. Specifically, we explained that, with respect to the charge of eluding a police officer, the
information stated:
       [Corbus] willfully attempted to elude a pursuing police vehicle after being given a
       visual signal to stop, and in so doing . . . traveled . . . in excess of 100 m.p.h.
       [or] . . . drove his vehicle in a manner as to endanger or be likely to endanger the
       property of another or the person of another, to-wit: the Defendant drove in a
       reckless manner including speeding in excess of 100 m.p.h., passing other
       vehicles, and turning off his headlights after sunset . . . .

Id. With respect to the reckless driving charge, the information stated:

       [Corbus drove] carelessly and heedlessly; without due caution and circumspection
       and/or at a speed or in a manner to be likely to endanger persons or property; by
       driving in excess of 100 m.p.h. with his headlights turned off after 9:18 p.m., with
       other vehicles on the roadway . . . .

Id. We reasoned that, because the eluding charge stated that Corbus “drove in a reckless
manner” in his attempt to elude a police officer, and because the language used in both charges
laid out the same factual circumstances as the basis for each, the means by which Corbus eluded
a police officer were the same means by which Corbus drove recklessly. Id. As such, this Court
concluded that, under the pleading theory, reckless driving was a lesser included offense of
eluding a police officer and Corbus’s conviction and punishment for both offenses was in
violation of the Double Jeopardy Clause of the Idaho Constitution. Id.
       Thus, in applying the pleading theory here, we must examine the information with which
Barnes was charged to determine whether possession of a controlled substance,

                                                 8
pseudoephedrine, with intent to manufacture methamphetamine, was a lesser included offense of
trafficking in methamphetamine by manufacture.           The information charging Barnes with
trafficking in methamphetamine by manufacture stated that Barnes, “on or between January,
2009, and September, 2009, in the County of Kootenai, State of Idaho, did knowingly
manufacture methamphetamine, or did aid and abet in the commission of said offense.” The
information charging Barnes with possession of a controlled substance, pseudoephedrine, with
intent to manufacture methamphetamine stated that Barnes, “on or between January, 2009 and
April, 2009, in the County of Kootenai, State of Idaho, did knowingly and unlawfully possess a
controlled substance, to-wit: pseudoephedrine, a Schedule II controlled substance, with the
intent to manufacture methamphetamine.”
       Unlike the language of the information in Corbus, the language of the information here
reveals that possession of a controlled substance, pseudoephedrine, with intent to manufacture
methamphetamine was not charged as the means by which Barnes committed the crime of
trafficking in methamphetamine by manufacture. We reiterate that, in Corbus, the reckless
driving act that was alleged in the information as the means by which Corbus eluded a police
officer was the same act by which Corbus committed the crime of reckless driving. Thus,
reckless driving was a lesser included offense of eluding a police officer.
       Here, the jury instructions identified several acts by which Klundt and Barnes allegedly
obtained pseudoephedrine. While the language of the information with respect to both charges
reveals similar time periods during which Barnes allegedly committed the offenses, there is no
allegation that the act or acts by which Barnes trafficked in methamphetamine by manufacture
were the same act or acts by which Barnes committed the crime of possession of a controlled
substance, pseudoephedrine, with intent to manufacture methamphetamine. Additionally, as
charged, the jury could have found Barnes guilty of trafficking in methamphetamine by
manufacture because she aided and abetted Klundt in the commission of that offense, which
would not have required Barnes to actually possess a controlled substance, pseudoephedrine,
with intent to manufacture methamphetamine. Under the pleading theory, therefore, possession
of a controlled substance, pseudoephedrine, with intent to manufacture methamphetamine is not
a lesser included offense of trafficking in methamphetamine by manufacture. As such, Barnes
has failed to demonstrate that she was subjected to double jeopardy under the pleading theory.




                                                 9
       Accordingly, Barnes’s claim fails under the first prong of Perry because Barnes has not
demonstrated that she was subjected to multiple convictions and punishments in violation of the
Double Jeopardy Clause of the Fifth Amendment to the United States Constitution or Article 1,
Section 13 of the Idaho Constitution.        Having demonstrated no violation of an unwaived
constitutional right, Barnes’s claim fails under the first prong of Perry.
                                                 III.
                                          CONCLUSION
       We hold that there was not a variance between the information charging Barnes with
conspiracy to traffic in methamphetamine by manufacture and the elements of the jury
instruction given at trial and that, even if there was a variance, the error was harmless. Barnes
has not demonstrated that her right to be free from multiple convictions and punishments under
the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution or
Article 1, Section 13 of the Idaho Constitution was violated. Accordingly, Barnes’s judgments
of conviction for conspiracy to traffic in methamphetamine by manufacture; trafficking in
methamphetamine by manufacture; and possession of a controlled substance, pseudoephedrine,
with intent to manufacture methamphetamine, are affirmed.
       Chief Judge GRATTON and Judge GUTIERREZ, CONCUR.




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