*1 Considering presumptions all inferences and favor, appellant’s we find that there concerning issue fact the ex-
unresolved
planation as or lack thereof to the risks operation
involved in therefore we summary judgment on this
reverse is-
sue. granting
We therefore affirm the summary judgment
motion for as to counts complaint
I II of the reverse proceed-
count III and remand further
ings opinion. consistent Costs to
appellant. attorney No fees allowed.
DONALDSON, J., SHEPARD, C. BISTLINE, JJ., concur.
BAKES Idaho, Plaintiff-Appellant,
STATE of THOMPSON, Ray
Charles
Defendant-Respondent.
No. 12974.
Supreme Court of Idaho.
July signature was obtained risks or that plaintiff that consent to show burden adequate explanation fraud. made without *2 Rehabili-
been committed under the Youth dump Act. stole a truck They tation to Idaho Falls. Rexburg proceeded Falls, this truck they abandoned two another truck which contained stole Falls, In Idaho shotguns and ammunition. in a ditch. they rolled this second truck a park- truck from They then took another Blackfoot, retain- ing proceeded to lot and ing shotguns. the two of a stopped
The three at the home Thompson took one Blackfoot resident. the rear of the shotguns and went to approached the while the other two house Karl B. carried and knocked. front door Upon opening of the shotgun. the other door, two men with the victim saw the door, po- and called gun, slammed the meantime, Thompson came lice. In the front and found door to from the back fire unsuccessfully attempting to his friends learning Thompson, shotguns. of the one shut, fired slammed been the door had door, causing ex- at the shotgun the other and the inside the door damage to tensive compan- and his Thompson of the house. left the resi- then, entering, without ions dence, pickup south in the stolen proceeding Blackfoot. Gen., David H. Leroy, Atty. Lynn E. of Black- Approximately two miles south Thomas, Carsman, Deputy Howard W. At- foot, stopped by pickup the stolen was Gen., tys. Boise, for plaintiff-appellant. time Karl police, at which Fort Hall Indian Goates, Blackfoot, Brian R. for defend- escapees were in All three driving. B. was ant-respondent. out getting B. was While Karl the truck. police, the order of vehicle on of the stolen McFADDEN, Justice. seat and into the driver’s Thompson slid appeal by This is an of Idaho of rear jumping into the with Karl away drove following a criminal conviction the sentenc- exchanged pickup. Shots bed of ing by respondent, the trial court of the Thompson’s com- police between pled Ray Thompson. Thompson Charles arrived and police The Blackfoot panions. robbery to one count of with the exchanged was gunfire further deadly and two counts of assault and Blackfoot Fort Hall as both the police tires weapon. pickup of assault dis- One count police gave chase. One stopping of at- missed as a lesser included offense resulting hit in the including tempted robbery. escapees vehicle. All three respondent were wounded. 22, 1977, defendant-respon- On October was filed Ray Thompson, age A four count information1 dent Charles Judicial Karl B. of the Seventh companions, two Russell R. and the district court District, charging Thomp- Bingham County, center escaped youth service from the state individually as follows: previously son Anthony, they where had St. sentencing prior IV dismissed Count was attorney. prosecuting motion ROBBERY, ford Count I. ATTEMPTED Dann and Leo T. Ariwite were rid- 18-306, ing buck- hitting 18-6501. said vehicle with shot. defendant, That the said on or about October, 1977, day the 22nd three respondent pled guilty to all Idaho, did, County Bingham, sentencing A January counts on fear, attempt means of force and *3 At the hearing April was held on possession take from the of [the victim] by II hearing, count was dismissed personal certain property, money, to-wit: that count sponte grounds court sua on the property of all of which [the victim] count I II was a included offense of lesser attempted against the will of the prosecution’s charged in the as defined and victim], said in that the Defendant [the accepted Thomp- information. The court attempted entry gain to into [victim’s] I guilty as to counts voluntary plea son’s of residence shotgun with the use of a custody him to the of and III and sentenced gun fired said into the of shot door said to period the Board of for a Corrections residence. [victim’s] I for a years exceed five on count Count II. WITH A DEAD- ASSAULT years on count period not to exceed three WEAPON, LY I.C. 18-906. III, concurrently. to run the sentences Defendant, That the said on or about the court prosecuting attorney then asked October, 1977, day 22d of in the Coun- 19-25202 provisions to invoke the of I.C. § Idaho, ty of make Bingham, State of did for use of a fire- and enhance the sentence upon person an assault of [the victim] the motion on court denied arm. The trial deadly weapon, shotgun, to-wit: a applicable basis that the statute by firing gun said at and toward said gun uses the actually who person to the [victim], hitting the front and into door offenses. commissionof the enumerated piano position the wall and in the where the listed is not one of Attempted robbery standing. had been [the victim] offenses. A DEAD- Count III. WITH ASSAULT Idaho, raises of appellant, WEAPON, LY I.C. 18-906. appeal, namely: three issues on defendant, That the said on or about erred in dis- the trial court 1. Whether October, 1977,in the day the 22d of Coun- (assault deadly a II with missing Count Idaho, ty Bingham, did make State of as a lesser included weapon) person an assault of Danford robbery). (attempted I Count Ariwite, Dann and Leo T. Police Officers in re- erred Whether the trial court Police,
of the Fort Hall Tribal enhancement sentence fusing apply to shotgun, by deadly weapon, to wit: a sen- to the 19-2520 provisions of I.C. § the Fort firing gun said at and toward count I. under imposed Hall Tribal Police car in which said Dan- tence shall, crime, Any person committing addition 2. “Sentence for use firearm. — (as- imposed the commission sentence for 18-906 convicted of a violation of sections crime, prison imprisoned for not (assault state deadly weapon), sault with a 18-907 (15) fifteen felonies), than less than three nor more with the intent to commit certain 18- years. run con- defined), sentence shall battery Such additional (aggravated assault imposed secutively for other sentence defined), (rescuing (burglary 18-2501 18-1401 crimes. the above cited charged prisoners), (escape one 18-2505 felony), (escape section, purposes with or convicted of a 18-2506 ‘firearm’ of this For the eject- any deadly weapon capable of a misde- one with or convicted means officers), meanor), (resisting projectives 18-3301 ing propelling 18-2703 more or one or (deadly weapon possession any explosive to as- [projectiles] with intent or action of — murder), sault), (degrees propellant, 18-4015 and includes unload- 18-4003 combustible (kid- (assault murder), inopera- 18-4501 with intent ed firearms and firearms which are larceny opera- defined), (grand readily napping 18-4604 ble but which can be rendered defined), defined), (mayhem 18-6101 ble. defined), apply defined), (robbery those cases (rape This even in or 18-6501 section shall used, Code, carried, displayed, is an element of where the use of a firearm who threatened, offense.” to use a firearm crimes statutory separate erred re- understood the trial 3. Whether court in constituent need not be identical —either provisions of I.C. fusing apply the to be order proof actual elements count respondent under 19-2520 to the —in consti meaning of the the same within firearm of a co-principal as a use III Ohio, Brown prohibition.” tutional companion. his 53 L.Ed.2d U.S. 97 S.Ct. not err. We the trial did hold that against prohibition 187, 193 held to mean been jeopardy has double I of both convicted may not be a defendant the court argues first The State Brown included offense. greater and lesser II as a count should not have dismissed 169, 97 at at Ohio, supra, I.C.R. of count I. lesser included offense 196; McCor 53 L.Ed.2d 48(a)(2) dismiss a states that the court 149, 152 111, 594 P.2d mick, 100 Idaho *4 it con- any reason if criminal action for will serve the that such dismissal cludes assault contends State justice and the effective administra- of ends of included is a lesser deadly weapon 32(c) of the court’s business. I.C.R. tion basing con robbery, this attempted fense of injustice to manifest provides that correct “statutory theory.” narrower on the tention court, sentence, may set aside the after is con theory, one offense this Under the de- permit conviction and judgment of it unless included of another sidered lesser In plea. his this case to withdraw fendant statutory defini so under necessarily is after the de- court the count dismissed v. United Larson tion of the crime. before sentence pled fendant had 1961); v. (10th Little 80, Cir. 296 F.2d 81 out, imposed. pointed As under I.C.R. was 1973). The defini State, (Me. A.2d 456 303 dismiss, 48(a)(2) power court had the to offenses announced included tion of lesser holding its II and as that count was a lesser necessarily included is in Littie “that to correct, included offense of count I was as offense ‘the lesser greater in the discussed, hereinafter we hold that commit impossible to that it is must such ordering correct dismissal. committed having without ” theory, this p. Under lesser.’ At 458. question The central is whether a lesser included count II would not be charge deadly weapon of assault with a is a robbery could be offense because charge lesser included offense in a of at by than in a manner other committed herein, tempted robbery, alleged such as as deadly weapon. use aof charges of preclude conviction both un expanded the jurisdictions have Many jeopardy der the double clause the fifth be included offenses definition lesser amendment of the United Constitu States statutory theory utilize what yond the tion and the Idaho Constitution. “pleading” is the called the “indictment” Or, jeopardy 829, ory. The double clause Washington, 273 543 State Amendment, 1058, applicable (1975); Cannady, Fifth States People P.2d 1062 Amendment, pro 129, 585, through 379,105 the Fourteenth Cal.Rptr. 8 Cal.3d 503 P.2d “ subject 614, ‘be person (1972); shall Armijo, vides no 90 N.M. put jeopar 1152, (App.1977) to be twice has the same offense P.2d long has dy adopted pleading approach by life and limb.’ It been both 299, 304, Blockburger In v. U. the same act or transaction consti- “[W]here S. 306, statutory (1932), 76 L.Ed. two tutes violation of distinct Supreme provisions, applied stated basic test for deter the test to be to deter- Court mining two offenses are when the same for mine where there two offenses purposes jeopardy: provision requires proof double is one whether each by statute and case law.4 I.C. alleged assault was as the manner and provides: battery means of the commission
“The jury may find the
therefore was an included offense.
In
defendant guilty
offense,
Hall,
commission of which
88 Idaho
necessarily
is
that with
charged
which
had been
defendant
indictment,
he
is
or of an
rape
assault with intent to commit
and at
attempt
to commit the offense.”
court,
tempt
rape.
to commit
follow
Anderson,
19-2312,
ing
Blacksten and I.C. §
Further clarification has come from several
held that
means
attempt was the
Anderson,
cases.
State v.
which the
assault was committed.
the court held:
“In the information here under considera-
“This court has not followed
strict
[the]
tion,
rule
which
but in effect
means
has held that an offense
alleged
an included
to have committed the offense
alleged
offense if it is
rape’
the information as a
‘assault with
means or element of
intent
to commit
higher
the commission of the
attempt
offense.”
his
assault with intent
added.)
(Emphasis
have
prosecu-
sexual intercourse with the
alleged
trix.
attempt
stated,
The court also
82 Idaho at
means
which the
was commit-
assault
P.2d at 976:
ted.” 88
397 P.2d at
Idaho at
263-
“The information in the case at bar
charged the commission of the offense of
driving
driving
reckless
while under
*5
argued
theory
It
be
that
broader
the influence
intoxicating liquor
of
as the
only
of lesser
applies
included offenses
means of charging
driving
the
in reckless
the situation
prosecution
where the
or de-
disregard of the safety of others which
requests
fense
instructions on the
in-
lesser
resulted in commission of the offense of
However,
cluded offense.
this is not the
Where,
here,
negligent homicide.
as
Hall,
63,
supra
case. Both State v.
86 Idaho
charges
information
negli-
crime of
602,
McCormick,
383 P.2d
and
v.
su-
State
gent
homicide committed
means of
pra,
analogous
involved situations
driving
driving
reckless
while under
both,
case at bar.
In
question
was
intoxicating
influence of
liquor, those whether the
could
convicted
be
necessarily
offenses are
included
of the second offense- or whether the convic-
charge
negligent
homicide.”
tion was barred because it was a lesser
Hall,
In State v.
86 Idaho
383 P.2d
quoted
included offense.
In Hall the court
602,
(1963)
the court defined lesser
the Anderson case cited above and others
thusly:
included offenses
that defined a
in the
lesser included offense
“An ‘included offense’ is one which is
In
broader fashion stated above.
McCor-
necessarily committed in the commission mick,
quoted
the court
the definition from
“
offense;
one,
of another
or
the essential Hail,
offense’
one .
is
‘[a]n
charged
elements of which are
in the
charged
the essential elements of which are
information as the
manner or means
in the information
the manner or means
as
which the offense was committed.”
by which the offense was committed.”
In
both McCormick and Hall
court found
Blacksten,
401,
In
v.
State
86 Idaho
387
prosecuted
that the defendant could be
for
P.2d 467
the court
determined
Hall,
assault,
charged.
both crimes
In
v.
su-
aggravated
State
charged
par
under the
63,
602,
information,
pra 86
P.2d
the second
ticular
was an offense included
Idaho
383
charge
prosecution
acquit-
in the
in that
aggravated battery,
robbery
followed
900,
Cariago,
(1974);
of an additional
fact which the other does
95 Idaho
ple prosecutions for various crimes tention greater which that a punishment can be imposed arise from the Brusseau, same act. State v. for the commission of the lesser 558, 559, 561, 563-64, imposed P.2d offense that can be (1975)(Donaldson, for J. commission of the dissenting part charged. penalty prescribed for the concurring part). There one act, offense of ‘assault with intent to commit shooting at the door of the victim. The rape’ imprisonment for a term of one to prosecuted cannot be for more 18-907; years, fourteen I.C. and for § than one crime arising from that act under ' ‘attempt offense of to rape’ commit I.C. 18-301. § punishment one-half of the for the crime Appellant argues also there rape, which by statute is fixed at im- were two separate events at the home of prisonment life, year for a term of one victim, (1) attempted initial entry 18-6104, I.C. 18-306. While a sen- § § by respondent’s companions, two tence of one-half of a life sentence cannot firing at the victim’s door the re- calculated, be a court is authorized to fix spondent. While it may argued sentence, a base maximum for the of- these two separate, events are sepa- thus life, rape, fense of which less than base crimes, rate the information is confined to maximum may then be used as the basis charges arising from the shooting incident. compute the sentence of one-half of The attempted robbery as defined count such imposed by base to be the court for I is alleged to have been attempted ‘attempt rape’, offense of to commit “against the will of victim], in that the [the and the actual sentence thus fixed may defendant attempted gain entry into [the less imposed by than the sentence residence with the use of a shot victim’s] 18-908 for the offense of ‘assault with § ” gun and fired said shot gun into the door of (Citations intent to commit omit- rape.’ said residence.” prosecutor If the [victim’s] ted). (cid:127)felt there were essentially two at- We therefore affirm the trial court’s rul- tempted robberies, he would have to so ing, dismissing count II as a lesser included charge. This was not done. offense of count I. The State lastly argues reality that in assault with a deadly weapon was the II greater offense penalty because the The second and third issues raised greater. We agree. do not punish- State, interpretation both involve of I.C. ment robbery is one half of (see 2). note This section was (I.C. sentence for robbery. 18-306). legislature (1977 enacted *7 Under I.C. robbery 18-6503 punishable § S.L., 1, 20). ch. 10 p. Basically the section § for not less than years five may be provides that impose the court must punishment 'extended to life. The for as- years enhanced sentence of three to fifteen sault deadly with a weapon is not more years for the use of a firearm in the com- years (I.C. than five 18-906). appel- The § mission of sixteen enumerated felonies. argues lant that since appellant could argues The first that State the court erred eligible parole years in ten on a life applying provisions not of this section sentence that half of years. “life” is five I, attempted robbery. Attempted to count Hall, The court in supra, State 88 Idaho robbery is not one of the enumerated of- 123, 264, at very P.2d at addressed the fenses The listed section. State ar- argument same that the penalty held gues deadly weapon that if assault with a for the assault was not less than the punish- a lesser included offense of rob- ment for the attempt, saying, (and is) bery we now hold that it then prohibition the information in both cases reveals that in such as to offend the against jeopardy.
neither were the two convictions for the same double at- of the for conviction weapon given sentence deadly with a assault implication, robbery. tempted with the use of a fire- committed has been provisions of I.C. § arm and the agree. apply. We do
should
Ill
appel
raised
third issue
The
of law
principal
It is well settled
interpretation
lant also involves
strictly
must be
con
criminal statutes
that
appellant
19-2520.
provisions of I.C. §
Jr., Crimi
W. LaFave and A. Scott
strued.
utilizing
in not
erred
that the court
argues
83-84;
pp.
McBoyle
nal Law
11§
giv
punishment
enhance
the section to
27,
340,
25,
51 S.Ct.
United
III as
under count
respondent
en the
(1931).
principle
This
L.Ed.
Thompson testified
co-principal.
only to the elements of
extends not
Fort Hall
that when the
sentencing hearing
crime,
also to the sanctions
substantive
truck, Karl was
stolen
stopped their
police
potentially
v. Ev
involved. United States
out, Thompson, at
got
driving. After Karl
ans,
483, 495,
333 U.S.
direction,
the driver’s
slid into
Russell’s
explicitly
Idaho has
L.Ed.
and then
seat,
jump in the back
told Karl to
principles of law.
followed the above
that Russell
stated
“took off.” He further
Hahn,
and then handed
gun
threw one
out
the court stated:
Karl,
rear bed of
who was in the
other to
must be suf-
defining
“A statute
a crime
in his
Thompson had the shells
the truck.
ficiently explicit
persons
so that all
sub-
Russell, who
gave to
pocket which he
what conduct on
ject
thereto
know
The officers
passed them back to Karl.
subject
penal-
part
their
will
them to its
they
giving chase testified
who were
give
A
statute must
a clear
ties.
criminal
from inside
being handed
gun
observed a
warning as to the acts
and unmistakable
truck.
rear of the
the cab to Karl in the
subject
punish-
which will
one to criminal
the officers
Karl.
were fired at
Shots
ment,
power
and courts are without
gun being
the other
police
did not see
supply
legislature
what
has left
question,
the truck.
thrown out of
criminal
vague. An act cannot be held as
then,
provisions
is who comes under
clearly appears
under a statute unless it
stat
language of the
19-2520. The
language
legisla-
used that
from the
convicted of
“Any person
in issue is:
ute
(Citations omitted.).
ture so intended”
used,
carried, displayed,
who
Following
principles,
the above
we hold
threatened,
attempted to use a firearm
applying
court was correct
crime, shall,
committing the
.
provisions
pun-
of I.C.
19-2520 to the
(Emphasis
. .”
add-
imprisoned
.
ishment given
Attempted
under count I.
ed.)
has never been
Again, as this statute
robbery
not one
of the enumerated of-
court,
rely
interpreted by
we must
on
fenses,
nor is there
inference that con-
statutory construc-
general principles
attempt
viction
the listed offenses
Following the rule
tion outlined above.
within
provisions
comes
of the statute.
Hahn, supra, we hold
outlined
deadly weapon
Assault
is one
actually Used the
person
who
appear clearly
offenses but
it must
subjected to the enhancement
gun can be
language
legisla-
of the statute that the
courts
19-2520.
provisions of I.C. §
“[The]
ture intended to include such
of-
*8
legis-
supply what the
power
are without
to
fenses from which one of the sixteen enu-
vague.” Supra 92 Idaho
has left
lature
might emanate before the
merated offenses
716;
Burns,
see
53
P.2d at
441
provisions
court could utilize the
(1933). “Ambiguity
731
statute to enhance the sentence of the un-
of criminal statutes
concerning the ambit
enumerated
offense. No such in-
lenity.” Su-
in
of
be resolved
favor
provi-
appears.
tention
The enhancement
should
States,
3109, 27 Cr.L.
imposed on
v. United
sions of the statute cannot be
a
sie
(1980).6
language
appellant may
While the
of the statute
While the
be correct that
clearly, imposes enhancement of sentence
deter not
legislative
it was the
intent
to
provisions
actually
on the one who
has the
actually possesses gun,
a
only person
who
firearm,
language
it
not evident from the
a crime in
principals
all
involved in
legislature
in-
of
statute whether
employed,
dangerous weapon was
which a
provisions
apply
tended to
the enhancement
interpretation
we cannot make such
co-principals.
to
of the few cases to
One
ap-
when no such intention
legislature
Hicks,
address this exact issue is
To
language
of
statute.
pears from
97,-589
P.2d 1130
In Hicks
Or.App.
what the
supplying
would be
hold otherwise
interpreting
the court in
a statute that
we cannot
vague
left
and this
legislature
only
similar to I.C.
19-25207 held that
§
Evans, supra
333 U.S.
do. United States
possession
persons
physical
who have actual
823;
Busic v.
92 L.Ed.
68 S.Ct.
guns during
the commission of felonies
in
The court was correct
United
id.
subject
provisions.
the enhancement
imposed.
the sentence
refusing to enhance
19-2520,
provisions
As in I.C.
of ORS
§
the trial court’s
We therefore
affirm
separate crime
166.230(1) do not create a
bu,t
entirety.
judgment
in its
only provide
penalties.
for enhanced
Oregon
holding
court based its
on what
grounds:
we
persuasive
find to be two
J.,
BISTLINE, J.,
DONALDSON,
C.
(1)
plain meaning
That the
of the words
concur.
statute, “[a]ny person
commits
who
II,
felony
SHEPARD, J.,
.
.
while arm-
I and
any
part
concurs in
liability
personal
ed” means that
part
as to
III.
but dissents
vicarious,
only apply
per-
the terms
to the
III,
J.,
BAKES,
parts
II and
concurs
armed;
son who is
part
but dissents as to
I.
(2)
statutory
That the
basis for vicarious
liability
refers
to situations
criminal
Justice,
SHEPARD,
concurring and dis-
crime
on
where one can be
of a
based
senting.
and here the statute
the conduct of another
result obtained
I concur in the
only provides
crime but
does not create a
majority
I and II of the
majority
I.C.
18-204.
Parts
penalty:
for enhanced
See
§
Soria,
(5th
1975);
Assuming shows, II that count II was a dismissal of count lesser in- on appeal offense, not it thought cluded I do see that as trial court constitu- solely because grounds ting for I. dismissal count. offense with count included to be a lesser Certainly the defendant not view, did raise for reason a dismissal my issue, pleaded having to it and incorrect. not made motion dismiss. The trial dismissal reverse the trial court’s I would its court dismissed on own motion. While for the matter II and remand of count may I.C. 18-301 have precluded § the trial imposed resentencing, sentence sentencing from court on counts both I and limitations consideration for the due Horn, II, 192, see State v. 100 Idaho Horn, v. in I.C. 18-301. State set out (1980); Brusseau, P.2d 551 v. State Brusseau, supra. supra; v. State 558, (1975), would not it have precluded trial entering court from
conviction on both counts. argument
As to the double jeopardy majority, Supreme Court of the
United States has now made it clear that:
“The Jeopardy function the Double challenging Clause serves in cases multi- punishments ple prevent prose- Idaho, Plaintiff-Respondent, STATE bringing charges, cutor from more v. sentencing imposing court PEDRAZA, Jose Junior punishments, Legislative than the Defendant-Appellant. . . Branch intended. ‘Where con- at a imposed single secutive sentences No. 13145. trial, the role of the constitution-
criminal of Idaho. Supreme Court guarantee assuring limited to al legislative its the court does exceed Aug. imposing multiple pun-
authorization the same offense.’ Brown
ishments for
Ohio, 165, 97 S.Ct. 432 U.S. (1977).” Whalen L.Ed.2d
United L.Ed.2d J.,
[Blackmun, concurring]. permits a defendant to be convicted, but not prosecuted
twice act, sentenced,
twice same
Horn, Brusseau, supra, supra, jeop- under Whalen case no double
thus
ardy violation occurs. majority’s 48(a)(2) reliance on I.C.R. thought trial
presumes that court required the justice”
the “ends of dismissal.
However, judge trial never relied on 48(a)(2). He dismissed count II only
I.C.R. thought he it was a lesser
because we the trial all know
offense. For justice” that the “ends thought have dismissal, being served far as
that he had no choice. As record