State v. Derek Edward Moad, 330 P.3d 400

Moad was convicted in Ada County for male rape under I.C. 18-6108 and battery with intent to commit a serious felony under I.C. 18-903/18-911; the indictment charged Count I (oral rape with threats) and Count II (post-rape battery with intent to commit rape/infamous crime against nature).
The jury heard that the acts occurred June 3–8, 2011, with evidence focusing on events in a penitentiary cell where the victim was assaulted after the rape and then forced to perform oral sex; the battery allegedly followed the rape.
The prosecutor framed Count II as battery after the oral rape; defense worried the battery instruction could envelop pre-rape conduct, but both sides argued the battery related only to post-rape conduct.
At trial, the jury returned guilty verdicts on both charges, and the district court imposed sentences on both convictions.
Moad did not object to the jury instructions or sentence structure at trial; on appeal, he raised a double jeopardy claim for the first time, asserting that the two offenses constituted one offense under both federal and Idaho law.
The court addressed whether the claim was fundamental error and ultimately held the sentences did not violate double jeopardy and the battery evidence was legally sufficient.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether double jeopardy bars punishment for both offenses	Moad argues post-rape battery and rape are the same offense.	State contends the issue can be raised but the record shows separate offenses.	No reversible double jeopardy; offenses are separate and independently punishable.
Whether pre-rape battery could be a lesser-included offense of rape	If battery premised on pre-rape conduct, punished twice for same offense under Blockburger and Idaho pleading test.	Battery after rape could not be a lesser-included offense of rape; clear post-rape basis.	Not reversible; post-rape battery is separate offense under pleading theory.
Whether post-rape battery and rape were part of an indivisible course of conduct	Charges arise from same incident; continuous conduct should yield single offense.	Evidence shows separate, distinct acts; still separate offenses.	Offenses were separate and independently punishable; not a single offense.
Sufficiency of the evidence for battery with intent to commit rape or infamous crime against nature	Post-rape acts show intent to rape; circumstantial evidence supports charging.	L.T. testified no penetration; argues insufficiency for intent.	Sufficient evidence; a reasonable jury could conclude intent to commit a sexual act.

State v. Thompson, 101 Idaho 430, 614 P.2d 970 (1980) (Idaho Supreme Court (1980)) (pleading theory for double jeopardy analysis (Idaho))
State v. McKinney, 153 Idaho 837, 291 P.3d 1036 (2013) (Idaho Supreme Court (2013)) (reaffirms pleading theory for Idaho double jeopardy)
State v. Moffat, 154 Idaho 529, 300 P.3d 61 (Ct. App. 2013) (Ct. App. Idaho (2013)) (illustrates division of acts in continuing offense; dual convictions may violate double jeopardy)
State v. Grinolds, 121 Idaho 673, 827 P.2d 686 (1992) (Idaho Supreme Court (1992)) (two separate assaults may be separate offenses even within single incident)
Bush v. State, 131 Idaho 22, 951 P.2d 1249 (1997) (Idaho Supreme Court (1997)) (two sexual offenses may be separately punishable when distinct acts occur)
State v. Estes, 111 Idaho 423, 725 P.2d 128 (1986) (Idaho Supreme Court (1986)) (hotel-room multiple penetrations not necessarily single continuing transaction (for rule of charging))
Blockburger v. United States, 284 U.S. 299 (1932) (U.S. Supreme Court (1932)) (elemental test for federal double jeopardy)
Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2210 (1977) (U.S. Supreme Court (1977)) (Double Jeopardy multiple punishments for same offense)