State v. Michelle Faye McIntosh, 368 P.3d 621

Undercover officer purchased methamphetamine from Michelle McIntosh in three transactions (3.5 g; 14.9 g; 28 g); McIntosh was arrested shortly after the third sale and found with drugs and a pipe.
McIntosh was indicted on two counts of trafficking (≥28 g), two counts of delivery, and one count of possession of drug paraphernalia.
At close of the State’s case the district court dismissed the trafficking component of Count I and, over no specific objection, instructed the jury on possession of a controlled substance with intent to deliver instead.
The jury convicted McIntosh on all counts. The court imposed a unified sentence of 10 years, with 4 years fixed.
On appeal McIntosh argued (1) the court lacked subject-matter jurisdiction to submit possession with intent to deliver because it is not a lesser-included offense of trafficking, and (2) the sentence was excessive.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether possession with intent to deliver is a lesser-included offense of trafficking	State: intent to deliver may be inferred from quantity and so is effectively included	McIntosh: statutory and pleading tests show intent is an element not present in trafficking, so not included	Not a lesser-included offense under statutory or pleading theories
Whether giving the possession-with-intent instruction deprived the court of subject-matter jurisdiction	State: court retained jurisdiction because indictment was valid	McIntosh: erroneous instruction meant court lost jurisdiction over that charge	Court retained subject-matter jurisdiction; error (if any) is not jurisdictional
Whether failure to object at trial preserves the instructional claim for appeal	State: no contemporaneous objection; claim not preserved	McIntosh: raised jurisdictional issue so may be considered	Instructional error was not preserved; no fundamental-error argument made
Whether the 10-year unified sentence (4 fixed) was an abuse of discretion	McIntosh: mitigating factors (remorse, addiction, family support) make sentence excessive	State: record shows ongoing dealing and public protection needs; sentence within statutory bounds	Sentence was reasonable and within discretion; affirmed

Blockburger v. United States, 284 U.S. 299 (statutory elements test for lesser-included offenses)
State v. Sanchez-Castro, 157 Idaho 647 (describing statutory and pleading theories for lesser-included offenses)
State v. Flegel, 151 Idaho 525 (limits on amending indictments and importance of grand jury charging)
State v. Lute, 150 Idaho 837 (indictment invalid where grand jury term expired)
State v. Rogers, 140 Idaho 223 (subject-matter jurisdiction attaches upon filing of charging document)
State v. Draper, 151 Idaho 576 (preservation rules for jury-instruction errors)
State v. Stevens, 146 Idaho 139 (abuse-of-discretion standard for appellate review of sentences)
State v. McCormick, 100 Idaho 111 (application of Blockburger test in Idaho)