State v. Major

• Decision Date: 30 July 1986
• Docket Number: No. 15850,15850
• Citation: 111 Idaho 410,725 P.2d 115
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Melvina Hazel MAJOR, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 115

725 P.2d 115

111 Idaho 410

STATE of Idaho, Plaintiff-Respondent, v. Melvina Hazel MAJOR, Defendant-Appellant.

No. 15850.

Supreme Court of Idaho.

July 30, 1986.

Thomas W. Callery, Lewiston, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., and Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BISTLINE, Justice.

Defendant-Appellant Melvina Hazel Major, an enrolled member of the Nez Perce Tribe of Indians, was convicted of grand theft by possessing stolen property in violation of I.C. §§ 18-2403(4) and 18-2407(1)(b)1. The items allegedly stolen were recovered from a location within the Nez Perce Indian Reservation, and from a pawn shop in Lewiston, outside the reservation. The item recovered from the pawn shop was located after Major had been charged and after the district court had denied Major's motion to dismiss for lack of jurisdiction.

The Nez Perce Tribe previously had enacted a law and order code which includes the offense of receiving stolen property. Major was charged with violating the Nez Perce tribal law and order code for the same incident which led to the state charge. ¹

Prior to trial, and prior to the filing of the amended information which alleged the possession of the stolen property at the pawn shop, Major moved the district court to dismiss for lack of jurisdiction. The district court ruled that the Nez Perce tribe by resolution had granted the state concurrent jurisdiction over the offense involved, and accordingly denied the motion to dismiss. The amended information was filed subsequently.

Major appeals her conviction, asserting the state lacked jurisdiction over the crime of possession of stolen property with its locus inside the reservation. As developed below, we hold that (1) the jury may have convicted Major solely for the possession which occurred on the reservation, and (2) the state lacked jurisdiction over this crime inside the reservation. Consequently, we must reverse the conviction and remand for a new trial concerning only that property allegedly possessed outside the reservation.

I.

In the initial information, Major was charged with grand theft by possessing stolen property on the Nez Perce Indian Reservation. Prior to trial, pursuant to I.C.R. 7(e), the state amended the information to include the possession of stolen property both on the reservation and off--one item of property allegedly possessed by Major, a VCR, having been recovered from a pawn shop in the City of Lewiston. The state conclusorily suggests without elaboration or citation to authority that "[s]ince the crime Major was charged with at the time of her jury trial was charged to have been committed in Lewiston, outside the boundaries of the Nez Perce Indian Reservation, in addition to being committed on the reservation, the state submits that jurisdiction was properly in the state courts." Respondent's Brief, pp. 4-5. In other words, in the state's view, any error as to jurisdiction over an Indian charged with possession of stolen property in Indian country (a designation which includes reservation lands) ² would be harmless, as the state had jurisdiction over the offense by virtue of the possession occurring outside Indian country. See, e.g., DeCoteau v. District County Court, 420 U.S. 425, 427 n. 2, 95 S.Ct. 1082, 1084 n. 2, 43 L.Ed.2d 300 (1975) (states generally have their normal jurisdiction over Indians outside Indian country); Odenwalt v. Zaring, 102 Idaho 1, 3, 624 P.2d 383, 385 (1981).

In equally conclusory fashion, Major replies with a two-part argument. First, suggests Major, this Court must decide whether the state had jurisdiction over Major for the alleged crime committed inside the reservation, because the jury's general verdict does not indicate "if the jury found Major guilty of possessing stolen property inside or outside the Reservation territory, or both." Appellant's Reply Brief, p. 3.

Second, Major asserts that the information was improperly amended under I.C.R. 7(e), since the alleged possession occurring in Lewiston was an "additional" and "different" offense. I.C.R. 7(e) provides for the district court to "permit ... an information ... to be amended at any time before the prosecution rests if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." (Emphasis added.) If this assertion is correct, then Major was charged with two offenses under the same count, a pleading defect referred to as "duplicity." W. LaFave and J. Israel, Criminal Procedure § 19.2(e), p. 457 (1984) (hereinafter Criminal Procedure). As a consequence, the state would have violated I.C. § 19-1501 et seq., since Major received no separate arraignment on what she argues was the second offense. See State v. Farris, 5 Idaho 666, 670, 51 P. 772, 773 (1895) (preliminary hearing required on each offense charged). Further, Major would have been prejudiced as to any conviction, since the jury might have convicted her only for the offense for which she had no arraignment. See Criminal Procedure, supra, § 19.2(e), p. 457 ("Duplicity can result in prejudice to the defendant ... in limiting review on appeal....").

These arguments raise two difficult questions which the parties have not fully addressed: (1) Was the charge of possession against Major properly considered one or two offenses? (2) If it was properly considered one offense, does this fact, coupled with the fact that the alleged possession partially occurred off the reservation, mean that any error as to jurisdiction over Major within the reservation was harmless? We will address each question in turn.

Whether a course of conduct constitutes one offense or several can be a troublesome question. ³ The distinction is important: to charge a defendant with two offenses when only one was committed violates the defendant's right against double jeopardy, U.S. Const.amend. V, Idaho Const. art. 1, § 13; conversely, to charge a defendant with one offense when more than one was committed can prejudice the defendant "in the shaping of evidentiary rulings, in producing a conviction on less than a unanimous verdict as to each separate offense, in sentencing, in limiting review on appeal, and in exposing the defendant to double jeopardy." Criminal Procedure, § 19.2(e), p. 457.

Whether a course of criminal conduct should be divided or aggregated depends on whether or not the conduct constituted "separate, distinct and independent crimes." State v. Hall, 86 Idaho 63, 69, 383 P.2d 602, 606 (1963). This inquiry requires consideration of the circumstances of the conduct, see State v. McCormick, 100 Idaho 111, 115-16, 594 P.2d 149, 153-54 (1979) (Where act of burglary was completed before act of rape, these were separate criminal acts.); Hall, supra, 86 Idaho at 75, 383 P.2d at 610 (Where robbery was completed before murder committed, these were separate acts.), and consideration of the "intent and objective of the actor." In re Ward, 64 Cal.2d 672, 51 Cal.Rptr. 272, 275, 414 P.2d 400, 403 (1966), cert. denied, 385 U.S. 923, 87 S.Ct. 238, 17 L.Ed.2d 147. The latter are of particular importance in cases of crimes of possession, which involve knowledge or awareness of control over something rather than an act or omission to act. W. LaFave and A. Scott, Handbook on Criminal Law § 25, p. 182 (1972) (hereinafter Criminal Law). In the context of deciding the propriety of aggregating several small larcenous acts into one charge of grand larceny, ⁴ this Court established a test accounting for the above considerations, which we adapt to present purposes: were the items possessed as a part of "a single incident or pursuant to a common scheme or plan reflecting a single, continuing [criminal] impulse or intent...." State v. Lloyd, 103 Idaho 382, 383, 647 P.2d 1254, 1255 (1982) (unanimous decision).

Applying this test to the instant facts, we are convinced that Major committed but one offense of possession of stolen property. The property was stolen at the same time from one individual. R., Vol. 1, pp. 220-59. On the same day, Major and her associates transported all of the stolen property to Lewiston, pawned one item there, and proceeded to the reservation where they were arrested. Id. She allegedly possessed the various items, including the pawned item, as a part of "a single incident" and "pursuant to a common scheme or plan reflecting a single, continuing [criminal] impulse or intent...." Lloyd, supra, 103 Idaho at 383, 647 P.2d at 1255. See United States v. Edmonson, 659 F.2d 549, 550 (5th Cir.1981), ("Since various items of mail stolen at the same time were in the defendants' 'possession as the result of one set of circumstances, that is, one theft [the possession thus constitutes] only one offense, and the defendant[s] could be convicted of only one offense.' "); State v. Flaherty, 576 P.2d 31, 32 (Or.App.1978) ("Possession of two different drugs at the same time and place constitutes a single offense."); cf. Avilia v. State, 278 So.2d 298, 298-99 (Fla.App.1973) (Where the defendant received four items of stolen property (a crime related to but not identical with simple possession of stolen property), and the property was received "at the same time, in the same place, under the same circumstances and with the same intent," there was but one offense committed.); Criminal Law, § 87, p. 635 ("[D]ifferent articles stolen at one time and place from the same victim ... can be aggregated [to constitute grand larceny].").

As the California Supreme Court noted: "[A] charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute--the gravamen of the offense--has been committed more than once." Wilkoff v. Superior Court, 38 Cal.3d 345, 211 Cal.Rptr. 742, 696 P.2d 134, 137 (1985). ⁵ Major's alleged possession occurred all at once and all as a part of a single incident. Thus, she committed but one offense. Accordingly, s...