State v. McIntosh
| Decision Date | 25 February 2016 |
| Docket Number | No. 41910.,41910. |
| Citation | 160 Idaho 1,368 P.3d 621 |
| Court | Idaho Supreme Court |
| Parties | STATE of Idaho, Plaintiff–Respondent, v. Michelle Faye McINTOSH, Defendant–Appellant. |
Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Jason C. Pintler, Deputy Appellate Public Defender argued.
Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Kenneth K. Jorgensen, Deputy Attorney General argued.
Michelle Faye McIntosh appeals from her judgment of conviction and resulting sentence after she was found guilty of trafficking in methamphetamine, possession of methamphetamine with intent to deliver, two counts of delivery of methamphetamine, and one count of possession of drug paraphernalia. We affirm both the judgment of conviction and the resulting sentence.
This case stems out of three separate purchases of methamphetamine by an undercover police officer from Michelle Faye McIntosh. The undercover police officer first purchased 3.5 grams of methamphetamine from McIntosh, and then purchased another 14.9 grams about a week later. Eight days after that, the undercover agent purchased another twenty-eight grams of methamphetamine from McIntosh. Shortly after the third transaction, police officers arrested McIntosh and found her in possession of methamphetamine and a pipe.
McIntosh was subsequently charged with, and later indicted for, two counts of trafficking in methamphetamine, two counts of delivery of methamphetamine, and one count of possession of drug paraphernalia. At the close of the State's case at trial, McIntosh's counsel moved to "partially dismiss count one or dismiss the trafficking component of count one and just leave simple possession of a controlled substance." The State responded that if the court was inclined to grant McIntosh's motion, the court should submit possession with intent to deliver, rather than possession. The district court heard arguments from the parties and subsequently dismissed the trafficking charge in Count I and ruled that it would instead instruct the jury on possession of a controlled substance with intent to deliver. The jury found McIntosh guilty of all charges, and the court subsequently sentenced McIntosh to a total unified term of ten years, with four years fixed. McIntosh timely appealed.
McIntosh makes two arguments on appeal. First, she argues this Court should vacate her conviction for possession of a controlled substance with intent to deliver because the district court did not have subject matter jurisdiction over the charge. Second, McIntosh argues that the district court abused its discretion when it imposed a unified term of ten years, with four years fixed. Each argument is addressed in turn.
McIntosh urges this Court to vacate her conviction for possession of a controlled substance with intent to deliver because the district court did not have subject-matter jurisdiction over the charge. Specifically, McIntosh asserts that possession of a controlled substance with intent to deliver is not a lesser-included offense to trafficking. Therefore, McIntosh argues, the district court lost jurisdiction over that charge when it dismissed the trafficking charge and instead instructed the jury on the possession with intent to deliver charge.
McIntosh argues that possession with intent to deliver is not a lesser-included offense of trafficking in methamphetamine because it is possible to violate the trafficking statute without meeting the required elements under the possession with intent to deliver statute. The State contends that intent to deliver is an included offense because although trafficking does not specifically require the jury to find intent, intent may be proven by "possession of controlled substances in quantities greater than would be kept for personal use."
"There are two theories under which a particular offense may be determined to be a lesser-included offense of a charged offense": the statutory theory and the pleading theory. State v. Sanchez–Castro, 157 Idaho 647, 648, 339 P.3d 372, 373 (2014) (quoting State v. Curtis, 130 Idaho 522, 524, 944 P.2d 119, 121 (1997) ).
The statutory theory provides that "one offense is not considered a lesser-included of another unless it is necessarily so under the statutory definition of the crime." Id. (quoting State v. Thompson, 101 Idaho 430, 433, 614 P.2d 970, 973 (1980) ). In determining whether an offense is a lesser-included offense this Court applies the Blockburger test, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which provides that an offense may be a lesser-included of another if all the elements of the lesser offense are included within the elements needed to sustain a conviction of the greater offense. State v. McCormick, 100 Idaho 111, 114, 594 P.2d 149, 152 (1979). Thus, an offense is not lesser-included if it is possible to commit the greater offense without committing the lesser.
Idaho's trafficking statute provides in relevant part:
Any person who knowingly delivers, or brings into this state, or who is knowingly in actual or constructive possession of, twenty-eight (28) grams or more of methamphetamine or amphetamine or of any mixture or substance containing a detectable amount of methamphetamine or amphetamine is guilty of a felony, which felony shall be known as "trafficking in methamphetamine or amphetamine."
I.C. § 37–2732B(a)(4)(A). Thus, trafficking requires the State to prove that the defendant (1) possessed or delivered methamphetamine; (2) knew it was methamphetamine; and (3) the quantity possessed or delivered was at least twenty-eight grams. Id.
Under the possession with intent to deliver statute, it is "unlawful for any person to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled substance." I.C. § 37–2732(a). Methamphetamine is a controlled substance. I.C. § 37–2705. Accordingly, possession with intent to deliver requires proof that the defendant (1) possessed any amount of methamphetamine; (2) knew it was methamphetamine or believed it was a controlled substance; and (3) intended to deliver the methamphetamine to another. I.C. § 37–2732(a).
Based on the language of these two statutes it is clear that possession with intent to deliver is not a lesser-included offense of trafficking in methamphetamine. Possession with intent to deliver requires proof of just that: intent to deliver. Although the elements of trafficking can be met if a defendant is shown to "knowingly deliver" at least twenty-eight grams of methamphetamine, proof that a person knowingly possessed or brought that quantity of drugs into the state, regardless of what he intended to do with it, is also sufficient. Thus, because the intent element required to prove possession with intent to deliver is absent from the elements required to commit trafficking, it is possible to satisfy all the elements of trafficking without meeting all the elements of possession with intent to deliver. Therefore, possession with intent to deliver is not a lesser-included offense of trafficking in methamphetamine under the statutory theory.
The second theory is the pleading theory. State v. Flegel, 151 Idaho 525, 529, 261 P.3d 519, 523 (2011). Under this theory, an offense is included within another if the charging document alleges facts that, if proven, also necessarily prove the elements of the lesser-included offense. Id.
The original indictment charged McIntosh with the crimes of: I. Trafficking in Methamphetamine, Felony, I.C. 37–2732B(a)(4) ; II. Trafficking in Methamphetamine, Felony, I.C. 37–2732B(a)(4) ; III. Delivery of a Controlled Substance, Felony, I.C. § 37–2732(a), IV. Delivery of a Controlled Substance, Felony, I.C. § 37–2732(a) ; and V. Possession of Drug Paraphernalia, Misdemeanor, I.C. § 37–2734A. Count I of the indictment alleged:
The facts alleged in the indictment closely track the language of Idaho Code section 37–2732B(a)(4)(A). However, the indictment fails to mention any facts analogous to "intent to deliver," as required to satisfy the elements of possession with intent to deliver. Thus, while the information accounts for all the elements required to prove trafficking in methamphetamine, the absence of anything resembling the "intent" element of possession with intent to deliver indicates that the proof of the elements of trafficking do not by necessity include proof of the elements of possession with intent to deliver. Consequently, possession with intent to deliver is not a lesser-included charge of trafficking in methamphetamine under the pleading theory.
The State argues that "trafficking does not require separate proof of intent to deliver because the minimum amount that must be possessed to be guilty of that offense ... is sufficient proof of such intent." In support, the State cites the Idaho Criminal Jury Instructions, which allow the jury to infer intent to deliver from possession of a controlled substance in "quantities greater than would be kept for personal use," and the dictionary definition of the word "trafficking."1
This argument is not persuasive. The case law addressing both theories is clear that lesser-included charges must be found within the offense's statutory definition or pleading documents. The State's argument goes well...
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