State v. Thompson

Decision Date29 July 1980
Docket NumberNo. 12974,12974
Citation614 P.2d 970,101 Idaho 430
PartiesSTATE of Idaho, Plaintiff-Appellant, v. Charles Ray THOMPSON, Defendant-Respondent.
CourtIdaho Supreme Court

David H. Leroy, Atty. Gen., Lynn E. Thomas, Howard W. Carsman, Deputy Attys. Gen., Boise, for plaintiff-appellant.

Brian R. Goates, Blackfoot, for defendant-respondent.

McFADDEN, Justice.

This is an appeal by the State of Idaho of a criminal conviction following the sentencing by the trial court of the respondent, Charles Ray Thompson. Thompson pled guilty to one count of attempted robbery and two counts of assault with a deadly weapon. One count of assault was dismissed as a lesser included offense of attempted robbery.

On October 22, 1977, defendant-respondent Charles Ray Thompson, age 19, and two companions, Russell R. and Karl B. escaped from the state youth service center at St. Anthony, where they had previously been committed under the Youth Rehabilitation Act. They stole a dump truck in Rexburg and proceeded to Idaho Falls. In Idaho Falls, they abandoned this truck and stole another truck which contained two shotguns and ammunition. In Idaho Falls, they rolled this second truck in a ditch. They then took another truck from a parking lot and proceeded to Blackfoot, retaining the two shotguns.

The three stopped at the home of a Blackfoot resident. Thompson took one of the shotguns and went to the rear of the house while the other two approached the front door and knocked. Karl B. carried the other shotgun. Upon opening of the door, the victim saw the two men with the gun, slammed the door, and called the police. In the meantime, Thompson came from the back door to the front and found his friends unsuccessfully attempting to fire one of the shotguns. Thompson, learning that the door had been slammed shut, fired the other shotgun at the door, causing extensive damage to the door and the inside of the house. Thompson and his companions then, without entering, left the residence, proceeding in the stolen pickup south from Blackfoot.

Approximately two miles south of Blackfoot, the stolen pickup was stopped by the Fort Hall Indian police, at which time Karl B. was driving. All three escapees were in the truck. While Karl B. was getting out of the stolen vehicle on the order of police, Thompson slid into the driver's seat and drove away with Karl jumping into the rear bed of the pickup. Shots were exchanged between the police and Thompson's companions. The Blackfoot police arrived and further gunfire was exchanged with the police as both the Fort Hall and Blackfoot police gave chase. One of the pickup tires was hit resulting in the stopping of the vehicle. All three escapees including the respondent were wounded.

A four count information 1 was filed in the district court of the Seventh Judicial District, Bingham County, charging Thompson individually as follows:

Count I. ATTEMPTED ROBBERY, I.C. § 18-306, 18-6501.

That the said defendant, on or about the 22nd day of October, 1977, in the County of Bingham, State of Idaho, did, by means of force and fear, attempt to take from the possession of (the victim) certain personal property, to-wit: money, the property of (the victim) all of which was attempted against the will of the said (the victim), in that the Defendant attempted to gain entry into (victim's) residence with the use of a shotgun and fired said shot gun into the door of said (victim's) residence.

Count II. ASSAULT WITH A DEADLY WEAPON, I.C. § 18-906.

That the said Defendant, on or about the 22d day of October, 1977, in the County of Bingham, State of Idaho, did make an assault upon the person of (the victim) with a deadly weapon, to-wit: a shotgun, by firing said gun at and toward said (victim), hitting the front door and into the wall and piano in the position where (the victim) had been standing.

Count III. ASSAULT WITH A DEADLY WEAPON, I.C. 18-906.

That the said defendant, on or about the 22d day of October, 1977, in the County of Bingham, State of Idaho, did make an assault upon the person of Danford Dann and Leo T. Ariwite, Police Officers of the Fort Hall Tribal Police, with a deadly weapon, to wit: a shotgun, by firing said gun at and toward the Fort Hall Tribal Police car in which said Danford Dann and Leo T. Ariwite were riding and hitting said vehicle with buckshot.

The respondent pled guilty to all three counts on January 23, 1978. A sentencing hearing was held on April 10, 1978. At the hearing, count II was dismissed by the court sua sponte on the grounds that count II was a lesser included offense of count I as defined and charged in the prosecution's information. The court accepted Thompson's voluntary plea of guilty as to counts I and III and sentenced him to the custody of the Board of Corrections for a period not to exceed five years on count I and for a period not to exceed three years on count III, the sentences to run concurrently. The prosecuting attorney then asked the court to invoke the provisions of I.C. § 19-2520 2 and enhance the sentence for use of a firearm. The trial court denied the motion on the basis that the statute is applicable only to the person who actually uses the gun in the commission of the enumerated offenses. Attempted robbery is not one of the listed offenses.

The appellant, State of Idaho, raises three issues on appeal, namely:

1. Whether the trial court erred in dismissing Count II (assault with a deadly weapon) as a lesser included offense of Count I (attempted robbery).

2. Whether the trial court erred in refusing to apply the sentence enhancement provisions of I.C. § 19-2520 to the sentence imposed under count I 3. Whether the trial court erred in refusing to apply the provisions of I.C. § 19-2520 to the respondent under count III as a co-principal for use of a firearm by his companion.

We hold that the trial court did not err.

I

The State first argues that the court should not have dismissed count II as a lesser included offense of count I. I.C.R. 48(a)(2) states that the court may dismiss a criminal action for any reason if it concludes that such dismissal will serve the ends of justice and the effective administration of the court's business. I.C.R. 32(c) provides that to correct manifest injustice the court, after sentence, may set aside the judgment of conviction and permit the defendant to withdraw his plea. In this case the court dismissed the count after the defendant had pled guilty but before sentence was imposed. As pointed out, under I.C.R. 48(a)(2) the court had the power to dismiss, and as its holding that count II was a lesser included offense of count I was correct, as hereinafter discussed, we hold that the court was correct in ordering the dismissal.

The central question is whether the charge of assault with a deadly weapon is a lesser included offense in a charge of attempted robbery, as alleged herein, such as to preclude conviction of both charges under the double jeopardy clause of the fifth amendment of the United States Constitution and the Idaho Constitution.

The double jeopardy clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides that no person shall " 'be subject for the same offense to be twice put in jeopardy of life and limb.' It has long been understood that separate statutory crimes need not be identical either in constituent elements or in actual proof in order to be the same within the meaning of the constitutional prohibition." 3 Brown v. Ohio, 432 U.S. 161, 164, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 193 (1977). The prohibition against double jeopardy has been held to mean that a defendant may not be convicted of both a greater and lesser included offense. Brown v. Ohio, supra, 432 U.S. at 169, 97 S.Ct. at 2227, 53 L.Ed.2d at 196; State v. McCormick, 100 Idaho 111, 594 P.2d 149, 152 (1979).

The State contends that assault with a deadly weapon is not a lesser included offense of attempted robbery, basing this contention on the narrower "statutory theory." Under this theory, one offense is not considered a lesser included of another unless it is necessarily so under the statutory definition of the crime. Larson v. United States, 296 F.2d 80, 81 (10th Cir. 1961); Little v. State, 303 A.2d 456 (Me. 1973). The definition of lesser included offenses announced in Little is "that to be necessarily included in the greater offense 'the lesser offense must be such that it is impossible to commit the greater without having committed the lesser.' " At p. 458. Under this theory, count II would not be a lesser included offense because attempted robbery could be committed in a manner other than by the use of a deadly weapon.

Many jurisdictions have expanded the definition of lesser included offenses beyond the statutory theory and utilize what is called the "indictment" or "pleading" theory. State v. Washington, 273 Or. 829, 543 P.2d 1058, 1062 (1975); People v. Cannady, 8 Cal.3d 379, 105 Cal.Rptr. 129, 503 P.2d 585, 592 (1972); State v. Armijo, 90 N.M. 614, 566 P.2d 1152, 1154 (App.1977). Idaho has adopted this pleading approach both by statute and by case law. 4 I.C. § 19-2312 provides:

"The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense."

Further clarification has come from several cases. In State v. Anderson, 82 Idaho 293, 301, 352 P.2d 972, 977 (1960), the court held:

"This court has not followed (the) strict rule but in effect has held that an offense is an included offense if it is alleged in the information as a means or element of the commission of the higher offense." (Emphasis added.)

The court also stated, 82 Idaho at 301, 352 P.2d at 976:

"The information in the case at bar charged the commission of the offense of reckless driving and driving while under the influence of intoxicating liquor as the means of charging the driving in...

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  • Sivak v. State
    • United States
    • Idaho Supreme Court
    • November 19, 1986
    ...has been held to mean that a defendant may not be convicted of both a greater and lesser included offense." State v. Thompson, 101 Idaho 430, 433, 614 P.2d 970, 973 (1980). Therefore, the question to be addressed is whether, under the circumstances of this case, the robbery is a lesser incl......
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    ...circumstances found and make imposition of death unjust. Criminal statutes must be strictly construed. State v. Thompson, 101 Idaho 430, 437, 614 P.2d 970, 977 (1980). I.C. § 19-2515(c) refers to "mitigating circumstances" that are to be weighed against "any aggravating circumstance found."......
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    ...Cf. United States v. Jenkins, 420 U.S. 358, 369-70, 95 S.Ct. 1006, 1012-13, 43 L.Ed.2d 250 (1975). In State v. Thompson, 101 Idaho 430, 433-36, 614 P.2d 970, 973-76 (1980), the Court held that where there was only one event--the defendant's shooting at the victim's door--the charge of assau......
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