author: STEGNER, Justice.

text:
    STATE of Idaho, Plaintiff-respondent, v. Eric Livingston WEIGLE, Defendant-appellant.
    Docket No. 46577
    Supreme Court of Idaho, Boise, April 2019 Term.
    Filed: August 27, 2019
    Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant Eric Livingston Weigle. Andrea W. Reynolds argued.
    Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent State of Idaho. Theodore S. Tollefson argued.
   STEGNER, Justice.

Eric Livingston Weigle (Weigle) was found guilty of robbing a credit union following a two-day jury trial. During the trial, the State's forensic scientist used a PowerPoint presentation to explain how she matched one of Weigle's known fingerprints to one found on the note used in the robbery. At trial, the presentation was admitted as an exhibit for demonstrative purposes without objection. It was then published to the jury. During its deliberations, the jury asked for a copy of the PowerPoint presentation. Weigle's counsel objected; however, the district court overruled the objection and provided the jury with the presentation. The jury found Weigle guilty. The district court imposed a conviction.

Weigle appealed from his judgment of conviction. The Court of Appeals affirmed. This Court granted his petition for review. Weigle argues that giving the presentation to the jury during deliberations was improper and constituted reversible error. For the following reasons, we affirm the trial court's decision to give the jury the PowerPoint presentation and the sentencing court's judgment of conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 5, 2016, a man committed a robbery at the Icon Credit Union on North Orchard Street in Boise, Idaho. The man handed a teller a note which read, "MONEY on counter or I shoot u!" The man was not wearing gloves. The teller then handed over $1,990 in cash. As the teller handed the man the money, she "scooped the note off onto the ground" as trained, so the authorities could examine it for fingerprints. The man then turned and walked out of the credit union. Multiple bank robbery alarms alerted the police. An officer arrived within a few minutes to secure the credit union. Not long after, a crime scene investigator arrived and took possession of the note as evidence.

After security footage of the man committing the robbery was made public, a call was received by the police in which the caller identified Weigle as the man who had committed the robbery. The police eventually learned that fingerprints had been identified on the note, so they requested a comparison of Weigle's known fingerprints to those on the note. The known prints and the note were then sent to the Ada County Crime Lab for analysis. Natasha Wheatley (Wheatley), the forensic scientist in the lab who specializes in the processing and evaluating of latent fingerprints, was given the task of comparing the fingerprints.

Wheatley analyzed five potential prints to determine if any of them were of value for comparison. She found one of the prints to be of sufficient value for comparison (the fingerprint). Wheatley then compared the fingerprint with Weigle's known prints. After her analysis, Wheatley concluded that the fingerprint obtained from the note matched Weigle's left thumbprint. Wheatley contacted the lead detective and informed him that the print on the note matched Weigle's. As a result, a warrant was issued for Weigle's arrest on October 31, 2016. He was arrested three days later. Weigle was charged with the felony crime of robbery, in violation of Idaho Code sections 18-6501 and 6502. The State also sought a persistent violator sentencing enhancement as set out in Idaho Code section 19-2514. Weigle's trial began on June 27, 2017, and ended the following day.

In preparation for her trial testimony, Wheatley created a PowerPoint presentation which demonstrated how she compared the two fingerprints and why she came to the conclusion she did. At trial, the State moved to admit the presentation "for demonstrative purposes." No objection was voiced by defense counsel and the district court admitted the presentation as State's Exhibit 13. The presentation was then published to the jury. Wheatley testified about the presentation, slide-by-slide, explaining how she had compared and matched the two fingerprints.

During deliberations, the jury submitted an inquiry to the court which read: "We are missing a piece of the State's evidence: State's Exhibit No. 13, the CD PowerPoint Presentation that Natasha Wheatley referred to for the fingerprint analysis." Defense counsel objected and argued that Exhibit No. 13 should not be given to the jury during deliberations because it was only admitted for demonstrative purposes. The district court overruled defense counsel's objection. The district court gave the presentation to the jury with an additional handwritten instruction that read, "Exhibit No. 13 will be submitted to you as requested. Remember that it was admitted for a limited purpose and is the subject of Instruction No. 14." Weigle's counsel objected a second time on the same basis. The objection was again overruled.

The jury found Weigle guilty of robbery. Weigle then pleaded guilty to the persistent violator enhancement. A judgment of conviction was entered on September 18, 2017. Weigle was sentenced to a twenty year unified sentence, with the first six years fixed. Weigle timely appealed. The Court of Appeals affirmed, finding that Weigle's argument on appeal was not properly preserved. This Court then granted his petition for review.

II. STANDARD OF REVIEW

"When reviewing a case on petition for review from the Court of Appeals this Court gives due consideration to the decision reached by the Court of Appeals, but directly reviews the decision of the trial court." State v. Schmierer , 159 Idaho 768, 770, 367 P.3d 163, 165 (2016).

"A defendant appealing from an objected-to, non-constitutionally-based error shall have the duty to establish that such an error occurred ...." State v. Perry , 150 Idaho 209, 222, 245 P.3d 961, 974 (2010). If a defendant can demonstrate error, the burden shifts to the State to demonstrate "that the error is harmless beyond a reasonable doubt." Id.

III. ANALYSIS

A. Weigle's argument regarding the applicability of Idaho Code section 19-2203 was preserved.

Idaho Code section 19-2203 addresses what exhibits may be given to a jury during its deliberations. Weigle contends that section 19-2203 is ambiguous and should be construed to prohibit the jury from being provided demonstrative exhibits during its deliberations. As an initial matter, the State contends that Weigle's argument regarding section 19-2203 was not preserved and thus cannot be addressed on appeal. The State relies on State v. Garcia-Rodriguez , 162 Idaho 271, 396 P.3d 700 (2017) for its argument. The Court of Appeals was persuaded by this argument and consequently declined to address the merits of Weigle's appeal. See State v. Weigle , No. 45389, 2018 WL 4844785.

Recently, however, this Court addressed Garcia-Rodriguez and clarified the rule regarding preservation of arguments on appeal. See State v. Gonzalez , 165 Idaho 95, 439 P.3d 1267 (2019), reh'g denied (May 17, 2019). In Gonzalez , this Court noted that a party may not "raise new substantive issues on appeal or adopt a new position on an issue that the trial court has not had the opportunity to rule on." Id. at 98, 439 P.3d at 1270. In contrast, a party may "polish[ ] up its support" for an argument by citing to statutes originally overlooked, so long as the party's legal position does not change. Id. (addressing Ada Cty. Highway Dist. v. Brooke View, Inc. , 162 Idaho 138, 395 P.3d 357 (2017) ). Weigle's case reflects this "polishing up" scenario recognized in Gonzalez .

Weigle maintained the same legal position below and on appeal: he contended the presentation should not have been submitted to the jury during deliberations because it had only been admitted for demonstrative purposes. On appeal, Weigle polishes this argument by including a reference to Idaho Code section 19-2203 and arguing that it should be allowed to support his appeal. Because Weigle's argument on appeal is merely an embellishment of his argument below, he is not precluded from making it before this Court.

B. Idaho Code section 19-2203 does not apply under these circumstances because it encroaches on this Court's constitutional authority to establish the procedural rules for Idaho's courts.

"It is well established that the Idaho Supreme Court is uniquely empowered with certain inherent powers. The Court has the inherent power to make rules governing the procedure in all of Idaho's courts." Talbot v. Ames Constr. , 127 Idaho 648, 651, 904 P.2d 560, 563 (1995) (citing In re SRBA Case No. 39576 , 128 Idaho 246, 255, 912 P.2d 614, 623 (1995); State v. Beam, 121 Idaho 862, 863, 828 P.2d 891, 892 (1992) ). "The inherent power of the Supreme Court to make rules governing procedure in all the courts of Idaho is hereby recognized and confirmed." I.C. § 1-212. Accordingly, this Court has noted that if a statutory provision that is procedural in nature is in conflict with the Idaho Criminal Rules, the rules govern. See, e.g. , State v. Abdullah , 158 Idaho 386, 484, 348 P.3d 1, 99 (2015) ; State v. Johnson , 145 Idaho 970, 974, 188 P.3d 912, 916 (2008) ; Beam , 121 Idaho at 863, 828 P.2d at 892.

The statute in question here, section 19-2203, reads in full as follows:

PAPERS WHICH MAY BE TAKEN BY JURY. Upon retiring for deliberation, the jury may take with them all exhibits and all papers (except depositions) which have been received in evidence in the cause, or copies of such public records or private documents given in evidence as ought not, in the opinion of the court, to be taken from the person having them in possession. They may also take with them the written instructions given and notes of the testimony or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person.

I.C. § 19-2203. Although Rule 24.1(b)(4) of the Criminal Rules allows jurors to have copies of admitted exhibits during trial, the Rule is silent on whether those exhibits may be used during deliberations. As such, there is no conflicting criminal rule and the parties have not pointed us to any.

Regardless, and more to the point, "Article II of the Idaho Constitution prohibits the Legislature from usurping powers properly belonging to the judicial department ...." In re SRBA Case No. 39576 , 128 Idaho at 255, 912 P.2d at 623. The Idaho Constitution further states, "The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a coordinate department of the government[.]" Idaho Const. art. 5, § 13. Although this Court has addressed section 19-2203 with approval in the past, see, e.g. , State v. Barnett , 133 Idaho 231, 235, 985 P.2d 111, 115 (1999) and State v. Crea , 10 Idaho 88, 99-100, 76 P. 1013, 1016-17 (1904), we take this opportunity to conclude section 19-2203 encroaches on this Court's inherent power to determine court processes. The statute dates from 1864, when Idaho was a territory, long before the recognition that this Court controls its own procedure. Indeed, it was codified long before Idaho's Constitution was created.

We think it is clear that the ambit of section 19-2203, what a jury may be provided while in deliberations, is procedural in nature and not substantive.

Although a clear line of demarcation cannot always be delineated between what is substantive and what is procedural, the following general guidelines provide a useful framework for analysis. Substantive law prescribes norms for societal conduct and punishments for violations thereof. It thus creates, defines, and regulates primary rights. In contrast, practice and procedure pertain to the essentially mechanical operations of the courts by which substantive law, rights, and remedies are effectuated.

Abdullah , 158 Idaho at 483, 348 P.3d at 98 (italics in original) (quoting Beam, 121 Idaho at 863-64, 828 P.2d at 892-93 ). The regulation of the use of exhibits during jury deliberations is simply not the regulation of a substantive right; it is instead procedural-an operation by which the applicable process is implemented. Defining and resolving this operation is an inherent power of the Supreme Court, and the legislature may not deprive the judicial department of this power. Idaho Const. art. 5, § 13 ; Talbot , 127 Idaho at 651, 904 P.2d at 563. Because Idaho Code section 19-2203 seeks to control this Court's processes, we view it as a nullity and unhelpful in determining what process to employ under the circumstances.

C. District courts have discretion to determine how demonstrative exhibits will be used.

Trial judges are endowed with the discretion to determine whether demonstrative exhibits should be provided to the jury during its deliberations. In making that determination, the trial judge should gauge the potential prejudice that might occur under the circumstances. Rule 105 of the Idaho Rules of Evidence allows evidence to be admitted for a limited purpose with the accompaniment of a limiting instruction.

Trial courts maintain broad discretion in admitting and excluding evidence. See, e.g. , T3 Enterprises, Inc. v. Safeguard Bus. Sys., Inc. , 164 Idaho 738, 745, 435 P.3d 518, 525 (2019) ; State v. Hall , 163 Idaho 744, 773, 419 P.3d 1042, 1071 (2018), reh'g denied (June 28, 2018), cert. denied , --- U.S. ----, 139 S. Ct. 1618, 203 L.Ed.2d 897 (2019) (mem). Rule 611 supports this broad discretion. It reads, "The court should exercise reasonable control over the mode and order of ... presenting evidence ...." I.R.E. 611(a). The corresponding federal rule, Rule 611(a) of the Federal Rules of Evidence, has often been cited "as giving courts general discretion over the use of demonstrative exhibits during trial." State v. Pangborn , 286 Neb. 363, 373, 836 N.W.2d 790, 799 (2013) (citing to cases from the First, Second, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits).

In Pangborn , the Supreme Court of Nebraska performed a lengthy and apt analysis, including an examination of many other jurisdictions, to articulate the rule that "the submission of demonstrative exhibits to the jury during deliberations should be left to the discretion of the trial court. Accordingly ... a trial judge may exercise his or her broad judicial discretion to allow or disallow the use of demonstrative exhibits during jury deliberations." Id. at 802. However, the Nebraska court properly subjected the trial court's discretion to the requirement that the district judge weigh the potential prejudice and provide adequate safeguards to address any prejudice, including a limiting instruction. Id. at 802-04.

The court in Pangborn reasoned as follows:

Just because demonstrative exhibits are not substantive evidence does not mean that they should be excluded automatically from jury deliberations. As mentioned earlier, the explicit purpose of a demonstrative exhibit is to aid the jury in its consideration of the evidence and issues in a case. Undoubtedly, in a complex case, demonstrative exhibits would be most helpful when the jury considers the totality of the evidence during deliberations. As the Seventh Circuit has stated, demonstrative exhibits "often are useful tools that enable the jury to visualize and organize the large volume of data produced by trial testimony."
Precisely because demonstrative exhibits can be exceedingly useful, many courts allow demonstrative exhibits to be used in jury deliberations under certain circumstances.

Id. at 798-99 (footnotes omitted). In establishing the requirement for adequate safeguards against prejudice, the Nebraska court recognized the potential for a jury to misuse demonstrative exhibits during deliberations:

Despite their potential usefulness, demonstrative exhibits also carry the potential to prejudice the party against whom such exhibits are used.
If used improperly, demonstrative exhibits can distract the jury from considering all of the evidence presented, causing them instead to unfairly emphasize only portions of the evidence. If all parties to a case do not submit demonstrative exhibits, the jury may be tempted to focus more heavily on the evidence to which it has "easy reference." Because they are often prepared specifically for use in litigation, demonstrative exhibits can be tempting vehicles for conveying prejudicial language and assumptions or inadmissible evidence to the jury.
Furthermore, if not instructed on the limited purposes of demonstrative exhibits, the jury may assume that demonstrative exhibits constitute primary proof of the information contained therein, leading the jury to shirk its duty to determine the truth and accuracy of the evidence. The jury may attribute undue weight or credibility to evidence summarized or illustrated in demonstrative exhibits. Or a jury may find the simplicity with which demonstrative exhibits present complex or technical information to be compelling and persuasive. On the other hand, demonstrative exhibits that are not properly explained may ultimately confuse or mislead the jury.
Given the possibility for such forms of prejudice, a trial judge must carefully consider the potential prejudice that may arise from the use of demonstrative exhibits during jury deliberations.

Id. at 802-03 (footnotes omitted). The court then listed potential safeguards, beyond the use of a limiting instruction,

requiring the proponent of the exhibit to lay foundation for its use outside the presence of the jury, having the individual who prepared the exhibit testify concerning the exhibit, allowing extensive cross-examination of the individual who prepared the exhibit, giving the opponent of the exhibit the opportunity to examine the exhibit prior to its admission and to identify errors, excising prejudicial content prior to submitting the exhibit to the jury, and giving the opposing side the opportunity to present its own exhibit.

Id. at 803-04 (footnotes omitted). Accordingly, we hold that Idaho trial judges have the discretion to allow demonstrative exhibits to be given to the jury during its deliberations, especially if appropriate safeguards are employed to address potential prejudice.

D. The district court did not abuse its discretion by providing Exhibit 13 to the jury during its deliberations.

When an alleged error is preserved by contemporaneous objection, as it was here, the harmless error test applies and the defendant has the initial burden of showing that the district court committed an error. Perry , 150 Idaho at 227, 245 P.3d at 979 ; Abdullah , 158 Idaho at 438, 348 P.3d at 53. Given the analysis above, Weigle must demonstrate that the district court abused its discretion by allowing the demonstrative exhibit to be given to the jury during deliberations. See Abdullah , 158 Idaho at 438-39, 348 P.3d at 53-54 (this Court reviews whether a defendant has demonstrated that the admission of evidence was in error, within the harmless error test, under the abuse of discretion standard).

When determining whether the trial court abused its discretion, this Court considers "[w]hether the trial court: (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason." Lunneborg v. My Fun Life , 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).

We find the district court did not abuse its discretion. First, Judge Neville recognized the discretionary nature of his decision even while noting that Judge Bail, the judge for whom he was substituting, employed a different procedure. Further, the district court specifically contemplated the curative nature of the limiting instruction he originally provided (Instruction No. 14) and then instructed the jury "Exhibit No. 13 will be submitted to you as requested. Remember that it was admitted for a limited purpose and is the subject of Instruction No. 14." See Pangborn , 836 N.W.2d at 803 (noting that several circuits have found "limiting instructions can limit or even eliminate" potential prejudice). Moreover, some of the additional safeguards listed by Pangborn were also present here: the individual who prepared the exhibit, Wheatley, testified about the exhibit, and defense counsel had the opportunity to cross-examine her. 836 N.W.2d at 803-04.

Analyzing what transpired at trial, the district judge acted within the boundaries of his discretion. Because the district court did not err in giving Exhibit 13 to the jury during its deliberations, Weigle has not satisfied his initial burden under the harmless error test. Consequently, we need not reach the second prong of that test.

IV. CONCLUSION

For the foregoing reasons, we find the district court did not abuse its discretion when it gave Exhibit 13 to the jury during its deliberations. We therefore affirm the judgment of conviction.

Chief Justice BURDICK, Justices BRODY, BEVAN and MOELLER concur.

      The judge who presided over the trial was Judge Thomas Neville. The substance of Weigle's appeal involves a ruling during trial by Judge Neville. Following his jury trial, Weigle was sentenced by Judge Deborah Bail. Weigle has appealed from the conviction entered by Judge Bail, which is what is required under the criminal rules. However, he has not challenged anything done by Judge Bail. References to the district court are to Judge Neville, unless otherwise noted.

      Instruction No. 14 read in its entirety: "Whenever evidence was admitted for a limited purpose, you must not consider it for any other purpose. Your attention was called to these matters when the evidence was admitted. An example of this would be an exhibit which was admitted for demonstrative or illustrative purposes."

      It is not clear that "pleading guilty" to the applicability of a sentencing enhancement is the correct procedure. However, because no one has objected, we will not address this practice.

      We have adopted the rule that "[w]hen a statute and rule 'can be reasonably interpreted so that there is no conflict between them, they should be so interpreted rather than interpreted in a way that results in a conflict.' " State v. Johnson , 145 Idaho 970, 974, 188 P.3d 912, 916 (2008) (quoting State v. Currington, 108 Idaho 539, 543, 700 P.2d 942, 946 (1985) (Bakes, J., dissenting)). However, in Johnson , we found the statute at issue to be substantive in nature and thus controlling over the criminal rule if in conflict with it. Id. at 974-75, 188 P.3d at 916-17. The opposite case exists here: section 19-2203 is strictly procedural in nature and consequently encroaches on this Court's inherent authority.

      Rule 105 reads: "If the court admits evidence that is admissible ... for a purpose - but not ... for another purpose - the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly." I.R.E. 105. It should be noted that the trial judge gave the jury a limiting instruction regarding Exhibit 13. See Instruction No. 14, supra note 1.


source: Caselaw Access Project

author: STEGNER, Justice. BRODY, Justice, concurring in part and dissenting in part.

license: Public Domain

text:
    IN RE: CSRBA CASE NO. 49576, Subcase No. 91-7094.
    Douglas McInturff and Darcy McInturff, Claimants-Respondents, v. Jeffrey C. Shippy, Objector-Appellant.
    Docket No. 45418
    Supreme Court of Idaho, Coeur d'Alene, August 2018 Term.
    Filed: August 27, 2019
    Barker, Rosholt & Simpson, LLP, Boise, for appellant Jeffrey C. Shippy. Albert P. Barker argued.
    Douglas McInturff and Darcy McInturff, Cataldo, respondents pro se. Douglas McInturff argued.
   STEGNER, Justice.

This appeal arises from a disputed water right relating to the St. Joe River in Benewah County, Idaho, between a landowner and the tenants who put the water to beneficial use. The license at issue described the water right as "appurtenant to the described place of use." The landowner argues that the water right is appurtenant to his land, while the tenants contend that the right was developed and owned by their predecessors in interest and now belongs to them by virtue of their having purchased the interest. The district court ultimately adopted the Special Master's report and issued a partial decree, which listed the tenants as the owner of the license. For the reasons set out in this opinion, we affirm the district court's decree.

I. FACTUAL AND PROCEDURAL BACKGROUND

The disputed water right in this case first arose as a result of Jeffrey Baker (Baker) and Alexander Bruner (Bruner)

creating an association, St. Maries Wild Rice Growers (St. Maries), to engage in commercial wild rice production. After St. Maries' formation, the association entered into an agreement with Aaron and Jeanne Robinson (the Robinsons) by which the association would cultivate wild rice on land owned by the Robinsons. In order to cultivate rice, the association needed water. In October 1983, St. Maries applied for a water right to irrigate the Robinsons' land. The Director of the Idaho Department of Water Resources (IDWR) approved St. Maries' permit application in November 1983 and issued it a license in 1991. The license contained a notation in its conditions section that stated: "This water right is appurtenant to the described place of use."

Following the time the water right was initially being put to beneficial use, St. Maries Wild Rice, Inc. was incorporated with Bruner as its president; however, the company was administratively dissolved by 1998. Nevertheless, the water right always remained under the name St. Maries Wild Rice Growers, and, in one form or another, St. Maries utilized the water right from the early 1980s until 2001.

On July 15, 2001, Bruner executed an agreement with Douglas and Darcy McInturff (the McInturffs) to sell the wild rice harvesting business and equipment. This agreement included the disputed water right as part of the sale, noting that it was "valuable and absolutely essential to the operation." The McInturffs, as the owners of St. Joe River Wild Rice Company, then took over cultivation of the land described in the water license. Four years later, the McInturffs submitted a notice of change in water right ownership to IDWR as required by Idaho Code section 42-248. The Director of the IDWR recorded the change in ownership of the water right to the McInturffs in December 2006.

During this time, the land on which the rice was harvested also changed owners. While the Robinsons initially owned the land on which St. Maries used the water, they later conveyed the land to their son Jeffery Shippy (Shippy). The property was transferred in four separate conveyances in 1993, 1994, 1998, and 1999. In 2010, Shippy conveyed the land to Cedar Creek Ranch, LLC (Cedar Creek), with Shippy as its sole managing member. Cedar Creek is the current owner of the land on which the rice was cultivated. Shippy and Cedar Creek never received notice of the change in ownership of the water license to the McInturffs in 2006 as communications occurred only between IDWR and the McInturffs. Meanwhile, Shippy contends that Robinson had owned the "appurtenant" water right by being the landowner, and, consequently, that the right passed with the land.

In February of 2015, the McInturffs filed a notice of claim within the Coeur d'Alene-Spokane River Basin Adjudication (CSRBA). The Director recommended the McInturffs be recognized as owners of the water right. Shippy timely filed an objection and a separate claim, arguing that he should be the sole owner of the water right. Following an investigation, the Director's Report explained that he was unable to determine who owned the water right, and therefore recommended it go to both Shippy and the McInturffs. The McInturffs filed an objection, and the parties went to trial before a Special Master on August 3, 2016. Following the trial, the Special Master determined that the McInturffs owned the water right. On November 28, 2016, Shippy filed a motion to alter or amend the Special Master's report and recommendation, which the Special Master denied. Shippy then challenged the Special Master's ownership determination in the district court. The district court adopted the Special Master's recommendation that the McInturffs owned the water right and entered a partial decree reflecting that decision. Shippy timely appealed. Following oral arguments, this Court ordered supplemental briefing to address a question regarding the identity of the real party in interest in the case.

II. STANDARD OF REVIEW

The Special Master's legal conclusions that the district court adopts are considered to be the district court's conclusions. United States v. Black Canyon Irrigation Dist., 163 Idaho 54, 59, 408 P.3d 52, 57 (2017). This Court freely reviews the district court's legal conclusions. Id. In addition, this Court exercises free review in determining whether an ambiguity exists in a legal instrument. Rangen, Inc. v. Idaho Dep't of Water Res., 159 Idaho 798, 807, 367 P.3d 193, 202 (2016).

"Findings of fact ... must not be set aside unless clearly erroneous[.]" I.R.C.P 52(a)(7). A trial court's findings of fact are not clearly erroneous "if the findings are supported by substantial and competent evidence." PacifiCorp v. Idaho State Tax Comm'n, 153 Idaho 759, 767, 291 P.3d 442, 450 (2012) (quoting Senator, Inc. v. Ada Cty. Bd. of Equalization, 138 Idaho 566, 569, 67 P.3d 45, 48 (2003) ).

III. ANALYSIS

A. Shippy and Cedar Creek are both real parties in interest.

Before we can address the issues raised on appeal, we must determine who is the real party in interest. Shippy contends that he and Cedar Creek are both real parties in interest in this case because Cedar Creek owns the land to which the contested water right is appurtenant. Because this appeal was only brought by Shippy, the Court requested additional briefing concerning who the real parties in interest are. Cedar Creek subsequently filed a request to ratify, join, or be substituted into this action. We agree with Shippy that both parties are real parties in interest and grant Cedar Creek's motion to join pursuant to Idaho Rule of Civil Procedure 17(3) to afford complete relief to the parties.

Standing is essential to justiciability. Therefore, it is an issue that may be raised at any time, including for the first time on appeal or sua sponte by this Court. Houpt v. Wells Fargo Bank, Nat'l Ass'n, 160 Idaho 181, 186, 370 P.3d 384, 389 (2016). Idaho Rule of Civil Procedure 17(a) requires an action to be "prosecuted in the name of the real party in interest." We have interpreted Rule 17 liberally to "further the policy favoring the just resolution of actions-providing litigants their day in court." Houpt, 160 Idaho at 187, 370 P.3d at 390 (citation omitted). Thus, Rule 17 "prevent[s] forfeiture when determination of the proper party is difficult or when an understandable mistake has been made in selecting the party plaintiff." Id. (citation omitted).

Both Cedar Creek and Shippy are real parties in interest. First, Cedar Creek is a real party in interest because it owns the land to which the water right at issue is appurtenant. Though Cedar Creek was not originally a party on this appeal, we grant its motion to join this action to best afford relief.

Second, Shippy is still a real party in interest because he was a proper claimant in the CSRBA. See I.C. §§ 42-1401A(1), 1412. As we held in Bray v. Pioneer Irrigation District, any claimant has standing to file an objection or response to a water right reported in the director's report. 144 Idaho 116, 118, 157 P.3d 610, 612 (2007). Injury is not required to object to a water right. Id. Accordingly, Shippy has standing to object to the McInturffs' claim and argue that Cedar Creek is the rightful owner of the water right, both of which he has done.

Nevertheless, the ultimate contest over the water right belongs to Cedar Creek and the McInturffs. While Shippy is a claimant with standing to object to the water right's ownership, he cannot argue that he is personally entitled to the water right when Cedar Creek owns the land.

B. The district court did not err in rejecting Shippy's claim to the water right license.

1. The district court correctly determined that Shippy's objection was an impermissible collateral attack.

The district court found that it was an impermissible collateral attack for Shippy to object to the determination of ownership made during the licensing process, which should have been made at the time the license was issued in 1991.

[Shippy and Cedar Creek] presented evidence at trial that it was originally intended for the water right to be held by Aaron Robinson and not St. Maries Wild Rice Growers. Tr., 136-137. However, if [Shippy and Cedar Creek] or their predecessors believed the license was owned by Robinson, this proceeding is not the proper time or place to raise that argument. If the Director erred in vesting ownership of the license in St. Maries Wild Rice Growers, the Objectors or their predecessors were required to timely raise the issue before the Department, exhaust their administrative remedies, and if necessary, seek judicial review.

(Citing I.C. § 67-5271.)

We have previously barred collateral attacks because of their ability to create uncertainty and to undermine water adjudications. City of Blackfoot v. Spackman , 162 Idaho 302, 308, 396 P.3d 1184, 1190 (2017) ; Idaho Ground Water v. Idaho Dep't of Water Res., 160 Idaho 119, 128, 369 P.3d 897, 906 (2016) ; Rangen, Inc., 159 Idaho at 805-07, 367 P.3d at 200-02. After all, "[f]inality in water rights is essential." State v. Nelson, 131 Idaho 12, 16, 951 P.2d 943, 947 (1998). Idaho adopted its statutory framework regarding water rights because the "future growth and development of the state is dependent upon effective management and efficient use of the state's water resources." I.C. § 42-241. Efficient administration and finality of decisions are crucial to "the proper planning for the future use of the state's water resources." See id.

Regarding the collateral attack on the water license, the district court relied on Idaho Code section 67-5271. That statute states, "A person is not entitled to judicial review of an agency action until that person has exhausted all administrative remedies[.]" It is undisputed that neither the Robinsons, nor Shippy, nor Cedar Creek contested the water right's listed owner-first the Association, then the Mclnturffs-with the IDWR. Instead, when Shippy eventually contested ownership in March 2015, it was as part of the CSRBA adjudication. The CSRBA was not the time or place for such an objection.

Instead, as the district court noted, the landowners "sat on their rights for over thirty years without action." In October 1983, St. Maries applied for a water right to grow and harvest wild rice on Robinson's property. The Director of the IDWR approved the permit application a month later in November 1983. The Director of the Department then issued St. Maries a license for the water in 1991 after conducting a site visit. Ten years later in 2001, St. Maries sold its interest in the water right to the McInturffs. The McInturffs appropriated the water to a beneficial use continuously from 2001 until 2014. In 2006, the Director of the IDWR recognized and recorded the McInturffs as the owners of the water right under the license. Shippy's predecessor in interest (Robinson), Shippy, and Shippy's successor in interest (Cedar Creek) were all paid by the tenants (St. Maries and the Mclnturffs) for their corresponding use of the land. The time for Shippy or his predecessor in interest to have challenged these earlier determinations came and went long before the CSRBA.

Neither Robinson nor Shippy ever asserted a right to the water before the CSRBA arose and that fact is clear from the record.

Q. [By Douglas McInturff] Have you ever exercised any legal action to have anybody stopped for trespassing to pump the water and harvest the land?
A. [By Jeffrey Shippy] No.
Q. How did you become aware of this water right action?
A. I became aware of it probably around the first of last year. I wasn't aware that the water right was not -
Q. That was when.
A. I guess I started to become aware of it as water rights were started being talked about in the Coeur d'Alene-Spokane Adjudication process. I never thought too awful much about it because up to that point I always knew that Aaron [Robinson] had water rights to that property. So I never really thought about it.
I found out at the first, sometime in the first couple of months of 2015 that that wasn't necessarily so and made the decision to look into it a little bit more and found out that he did not have water rights to his property.
Q. That he did not have the water right?
A. Well, the water right license was issued to -
Q. Did he have water right licenses in his name?
A. No.

The district court below concluded, "the record reveals that neither the Objectors [Shippy and Cedar Creek] nor their predecessors [the Robinsons] asserted any ownership in the water right until Shippy filed the competing claim in 2015." The court went on to find:

[A]t no time did either the Objectors or their predecessors assert ownership via the filing of notice of change of ownership with the Department as required by Idaho law. I.C. § 42-428. Nor did they contest the McInturffs' open use of water under the right from 2001 to 2014. Had the Objectors or their predecessors timely asserted their alleged ownership interest as required by law, the issue of ownership could have been addressed in a timely manner on a fresh record. Instead, the Objectors sat on their rights for over thirty years without action.

The fact that Shippy and his predecessors in interest did nothing to assert a claim to the water at issue is uncontradicted. Shippy acknowledged as much on the witness stand.

Not only has Shippy done nothing, the McInturffs have diligently preserved their right to the water as the district court found.

Unlike the Objectors, the record establishes the McInturffs have diverted and beneficially used water under the subject water [right]. The McInturffs' use began following the acquisition of the water right in 2001 under the sale agreement. Beginning that year and up until 2014, the McInturffs cultivated the place of use identified in the license with water available under the water right. The Objectors do not dispute the McInturffs' beneficial use. Far from it. The Objectors were complacent with the use and had a business arrangement with the McInturffs wherein Shippy was paid in the amount of "one-third of the share" of the harvest for allowing the McInturffs to cultivate the place of use.

These are findings of fact drawn by the district court acting in its capacity as the factfinder. We owe deference to the district court. I.R.C.P. 52(a)(7) ; PacifiCorp, 153 Idaho at 767, 291 P.3d at 450. We are not a fact-finding court. More to the point, the district court's findings of fact are amply supported by this record.

Accordingly, Shippy and Cedar Creek failed to timely assert their ownership interest and the objections rise to the level of an impermissible collateral attack at this juncture.

Cedar Creek claims that it did not assert its right earlier as it believed that it owned the water right due to the ownership of the land. However, ignorance of the law is not a defense, nor is it an excuse for Shippy's untimely challenge to the water right. See State v. Fox, 124 Idaho 924, 926, 866 P.2d 181, 183 (1993). As explained below, land ownership is not a requirement to obtain a water right. Thus, the fact that Cedar Creek believed it owned the water right because it owned the property upon which the water right was used does not excuse Shippy and Cedar Creek's tardiness in asserting their rights. In fact, such a belief should have prompted them to investigate or undertake proper procedure to perfect their claimed right.

Accordingly, the district court correctly determined that Cedar Creek's objection was an impermissible attack and that Cedar Creek had failed to timely assert its rights.

2. The district court correctly determined Cedar Creek was not the owner of the disputed water right because the license was unambiguous and neither Shippy nor Cedar Creek put the water to a beneficial use.

a) The district court did not err when it determined the water license was unambiguous.

The disputed water license states: "This water right is appurtenant to the described place of use." Shippy and Cedar Creek argue that this language vests ownership of the water right with the owner of the land, Cedar Creek. However, the district court found that the license was clear and unambiguous and recognized a bifurcation between the ownership of the land and ownership of the water right used on that land.

"Whether an ambiguity exists in a legal instrument is a question of law, over which this Court exercises free review." Knipe Land Co. v. Robertson , 151 Idaho 449, 455, 259 P.3d 595, 601 (2011) (citation omitted). "An unambiguous [legal instrument] will be given its plain meaning." Bakker v. Thunder Spring-Wareham, LLC, 141 Idaho 185, 190, 108 P.3d 332, 337 (2005).

This Court has held that "water may be appropriated for beneficial use on land not owned by the appropriator, and this water right becomes the property of the appropriator." First Sec. Bank of Blackfoot v. State , 49 Idaho 740, 746, 291 P. 1064, 1066 (1930). Further, in Blackfoot , we wrote, "If the water right was initiated by the lessee, the right is the lessee's property, unless the lessee was acting as agent of the owner." Id. Thus, a tenant who appropriates water even with the knowledge or acquiescence of a landlord has a separate and distinct right to the water from that of the landlord so long as the tenant is not acting as the landlord's agent. See id. ; see also Joyce Livestock Co. v. United States , 144 Idaho 1, 18, 156 P.3d 502, 519 (2007).

Here, the language of the license is unambiguous and originally identified St. Maries as the owner of the water right. As noted above, land ownership is not a requirement to obtain a water right. Instead, a valid water right can arise where the appropriator has lawful access. Lemmon v. Hardy, 95 Idaho 778, 780-81, 519 P.2d 1168, 1170-71 (1974). Generally, water "appropriated for beneficial use on land not owned by the appropriator ... becomes the property of the appropriator." Blackfoot, 49 Idaho at 746, 291 P. at 1066.

Here, the district court accurately noted, "Idaho law recognizes there may be a bifurcation between ownership of the land and of the water right used in the land." As the district court found, the license plainly identified St. Maries as the owner of the license. Neither St. Maries nor its successors ever owned the land identified in the water license as the place of use. As a result, the bifurcation between ownership of the land and of the water right used on the land has existed from the commencement of the appropriation. Accordingly, the remark-"This water right is appurtenant to the described place of use"-does not vest ownership of the water right with the landowner. Rather, the remark simply clarifies that the use of the water right is tied to (or in the language of the license "appurtenant to") the described place of use, i.e., Cedar Creek's land.

b) The district court did not err when it concluded that Cedar Creek could not own the water right because it did not put the water to beneficial use.

The district court found that Cedar Creek's ownership claim failed because neither Shippy nor Cedar Creek put the water under the contested water right to beneficial use. The record supports this conclusion.

In Idaho, it is "a well-settled rule of public policy that the right to the use of the public water of the state can only be claimed where it is applied to a beneficial use in the manner required by law." United States v. Pioneer Irrigation Dist., 144 Idaho 106, 110, 157 P.3d 600, 604 (2007) (quoting Albrethsen v. Wood River Land Co., 40 Idaho 49, 60, 231 P. 418, 422 (1924) ). This is known as the doctrine of prior appropriation: the first appropriator to divert the water and put it to beneficial use has a superior right to use the water. Joyce Livestock Co., 144 Idaho at 7-8, 156 P.3d at 508-09. Thus, an appropriator who was first in time is first in right. Id. These constitutionally obtained water rights are still recognized and protected. Id.

Since 1971, Idaho has also implemented a statutory process to obtain surface water rights. Pioneer Irrigation Dist., 144 Idaho at 110, 157 P.3d at 604. Though the statute still recognizes the traditional diversions of state waters for useful or beneficial purposes, it imposes the additional requirements of filing an application with the IDWR, obtaining a permit, and then perfecting the water right by obtaining a license. I.C. §§ 42-101, 42-201. To have a valid water right in Idaho, both the constitutional and statutory methods of appropriation require the appropriator to apply the water to a beneficial use. Pioneer Irrigation Dist., 144 Idaho at 110, 157 P.3d at 604. A license will not issue until there is proof of a beneficial use. Id.

As noted, "[i]f the water right was initiated by the lessee, the right is the lessee's property, unless the lessee was acting as agent of the owner." Blackfoot, 49 Idaho at 746, 291 P. at 1066. Thus, so long as the tenant is not acting as the landlord's agent, the tenant may acquire its own distinct and separate water right. Id. Merely allowing the tenant to use the water on land owned by the landlord does not equate to the landlord putting the water to beneficial use. See id.

Here, there is no evidence that Cedar Creek or its predecessors in interest ever established an agency relationship with the Mclnturffs or their predecessors in interest. There is no evidence in any leasing agreement that would have created an agency relationship. In fact, Cedar Creek contends that no lease ever existed. The only action by the landowner was to allow St. Maries, and later the Mclnturffs, to use the land to cultivate wild rice. Merely allowing the tenant to use the water on the land is not enough to establish an agency relationship between landowner and tenant. Therefore, it cannot be said that St. Maries or the Mclnturffs put the water to beneficial use on behalf of Cedar Creek. Instead, the record reflects that the right to the water originated from the application filed by St. Maries. Only St. Maries and its successors ever put the water to beneficial use, and they only did so for the benefit of their wild rice harvesting businesses. There is nothing in the record to suggest that St. Maries or the McInturffs were acting on behalf of Cedar Creek.

Therefore, due to the lack of any evidence that Cedar Creek put the water to beneficial use, it has failed to meet its burden of persuasion on that element. Accordingly, the failure to put the water to beneficial use is fatal to Cedar Creek's claim of ownership, and the district court correctly determined that Cedar Creek did not own the water right.

C. The district court correctly determined that it did not have jurisdiction to review Cedar Creek's objection to the change in ownership by the Director of the IDWR.

In addition, the district court found it was not the proper forum to attack the propriety of the Director's determination to recognize and record the Mclnturffs as owners of the water right in 2006. The district court held that pursuant to Idaho Code section 42-1401D it did not have jurisdiction to consider Shippy's challenge to the Mclnturffs' application. That statute reads as follows:

42-1401D. JURISDICTIONAL LIMITATION. Review of an agency action of the department of water resources, which is subject to judicial review or declaratory judgment under the provisions of chapter 52, title 67, Idaho Code, shall not be heard in any water rights adjudication proceeding commenced under this chapter. Venue and jurisdiction over any such action pending on the effective date of this section, or initiated subsequent thereto, shall be in the district court as authorized under the provisions of section 67-5272, Idaho Code, without regard to any other provision of law.

I.C. § 42-1401D.

The district court correctly concluded this statute deprived it of jurisdiction to review an agency decision of the IDWR that was subject to judicial review under the Idaho Administrative Procedures Act (IDAPA). If Cedar Creek and Shippy were dissatisfied with the Director's determinations of ownership, any objection to that determination should have been made with the agency. See I.C. §§ 42-1701A, 67-5271. Therefore, Shippy and Cedar Creek have not exhausted their administrative remedies and may not raise the issue for the first time in the CSRBA. Instead, the claim should have been brought in front of the Director during the change in ownership determinations.

It is of note that Cedar Creek argues that its objection was delayed because it was not given notice of the change of ownership. However, Cedar Creek was not entitled to notice under Idaho Code section 42-248. That statute provides:

The director of the department of water resources will be deemed to have provided notice concerning any action by the director affecting a water right or claim if a notice of the action is mailed to the address and owner of the water right shown in the records of the department of water resources at the time of mailing the notice.

I.C. § 42-248(3). Here, however, neither Cedar Creek nor Shippy were the prior owners of the water right. While it is true that the Special Master found there was no evidence that notice had been "mailed to the owner of record," the Special Master indicated that St. Maries was the owner of record, not Shippy or Cedar Creek. Therefore, Cedar Creek would not have received notice anyway.

Accordingly, the district court correctly determined that it did not have jurisdiction to adjudicate Cedar Creek's objection to the change in ownership determination.

D. Shippy and Cedar Creek are not entitled to attorney fees.

Shippy requests attorney fees pursuant to Idaho Code section 12-121 and Idaho Appellate Rules 40 and 41. As for section 12-121 and I.A.R. 40 and 41, attorney fees are only awarded to the prevailing party. As Shippy and Cedar Creek are not the prevailing parties, they are not entitled to any attorney fees.

Shippy further requests attorney fees under I.A.R. 11.2, claiming the McInturffs pursued this action in bad faith in order to run up Shippy's fees. Their contention stems from a contentious letter written to Shippy by Darcy McInturff on July 18, 2017. In it, Ms. McInturff claims that Shippy's actions in retaining counsel to pursue this water right "has served only to pad the pockets" of the attorneys and demonstrates Shippy's "absolute stupidity." She also claimed that Mr. McInturff never intended to pursue the water right until they received a letter from Shippy's attorney, at which point the goal became to prolong the legal battle in order to "take delight in the outpouring of cash" Shippy would have to expend. While the McInturffs do not deny the letter Ms. McInturff sent to Shippy, they claim it was merely spiteful, "angry venting" following a long legal battle.

The district court noted that, though the letter did not affect the case's merits or the outcome, "[a]n admission that the process is being used for nothing more than to needlessly raise the cost of litigation for a party that has chosen to be represented by counsel is alarming." In Idaho, "it is well-established that courts will apply the same standards and rules whether or not a party is represented by an attorney and that pro se litigants must follow the same rules." Bettwieser v. N.Y. Irrigation Dist., 154 Idaho 317, 322, 297 P.3d 1134, 1139 (2013).

This Court shares the concern of the district court regarding this letter. Idaho's courts do not exist for litigants to elevate annoyance, grudges, or vendettas to legal action improperly. This letter was certainly ill-advised and, as the McInturffs admit, spiteful. However, given the meritorious case the McInturffs presented on a water right they have beneficially used for well over a decade, this Court determines that imposing sanctions would not be appropriate.

IV. CONCLUSION

For the foregoing reasons, we affirm the district court's partial decree. We decline to award attorney fees. Costs are awarded to the McInturffs.

Chief Justice BURDICK and Justice BEVAN concur.

BRODY, Justice, concurring in part and dissenting in part.

While I concur in Part A of the majority's analysis, I believe that the water right's language created an ambiguity.

The majority concludes that the district court did not err in finding the license unambiguous. However, in reviewing the record, even the Director of IDWR-who is charged with investigating claims and interpreting the Department's licenses-could not determine to whom the right belonged. As a result, the Director's Report recommended that it be decreed to both parties. Yet the district court found the license unambiguous even though the "IDWR Director's Report constitutes prima facie evidence of the nature and extent of water rights acquired under state law." A & B Irrigation Dist. v. Aberdeen-Am. Falls Ground Water Dist., 141 Idaho 746, 750, 118 P.3d 78, 82 (2005).

As the Director saw, this water right's language and history is anything but plain. The disputed water license states: "This water right is appurtenant to the described place of use." Appurtenant means "annexed to a more important thing." Appurtenant, BLACK'S LAW DICTIONARY (8th Ed. 2004). While the license's remark itself is unusual, the idea is not: water rights are often tied to the land, both as a specified place of use and as appurtenant rights conveyed with the property. See I.C. § 42-101.

Similar to the law of easements, a water right passes with the property to which it is appurtenant-possibly through an appurtenance clause, but even if not mentioned in the deed at all-unless there is an intention to the contrary. Joyce Livestock Co. v. U.S., 144 Idaho 1, 13, 156 P.3d 502, 514 (2007) ; Bothwell v. Keefer , 53 Idaho 658, 662, 27 P.2d 65, 66 (1933) ; Koon v. Empey, 40 Idaho 6, 11, 231 P. 1097, 1098-99 (1924). In fact, while a water right may be separated from the property, it is more often a natural appurtenance tied to the land of its permitted use. Compare First Sec. Bank of Blackfoot, 49 Idaho at 746, 291 P. at 1066 ("a water right is not necessarily appurtenant to the land on which it is used and may be separated from it."), with Mullinix v. Killgore's Salmon River Fruit Co., 158 Idaho 269, 277, 346 P.3d 286, 294 (2015) ("a water right is appurtenant to the land and transfers with the conveyance of the land."); Joyce Livestock Co., 144 Idaho at 14, 156 P.3d at 515 ("the inquiry is whether the water rights were expressly reserved in the deed conveying the land or whether there is clear evidence that the parties intended that the grantor would reserve them."); Bothwell v. Keefer, 53 Idaho 658, 662, 27 P.2d 65, 67 (1933) ("a water right passes with the realty to which it is appurtenant unless there is intention to the contrary."); Koon, 40 Idaho at 11, 231 P. at 1098 ("there can be no question that a water right becomes appurtenant to the land to which it has been applied and upon which the water has been used for irrigation.").

While this Court's holding in First Security Bank of Blackfoot v. State would generally apply to disputed water rights between a landlord and tenant, this case is unique because of the additional language in note two of the license: "This water right is appurtenant to the described place of use." I believe this notation created ambiguity in the license's ownership and purpose, and moves the case outside a First Security Bank analysis. Said simply, if note two of the license did not exist, this Court's holding in First Security Bank would dictate that the water right belongs to McInturff. As it stands, however, the note could reasonably be interpreted in two different ways. It could, as the district court concluded, be interpreted merely as a clarification that the use of the water is tied to a specific place (meaning that McInturff will have to apply to transfer it elsewhere). Or, alternatively, as Cedar Creek argues, it could reasonably be interpreted to mean that even though the tenant was putting the water to beneficial use, the water right would remain with the landowner's land.

But this ambiguity has an even longer history. The record shows a disagreement between St. Maries' own associates, Bruner and Baker, with each believing a separate party owned the water right. Bruner entered into a purchase and sale agreement with Mclnturff which specifically referenced the water right at issue as an asset that was being transferred. Baker, his partner, testified at the trial before the Special Master that the water right belonged to Cedar Creek. Accordingly, I think the majority misapplies the facts and existing law to conclude that the license is plain and unambiguous.

In addition, this ambiguity created another crucial issue of notice and timeliness. The majority concludes that Shippy sat on his rights and that his objection now is an impermissible collateral attack. I disagree.

As the majority noted, Cedar Creek never received notice of the ownership change, nor would it have under the CSRBA's statutory requirements. While I agree that the need for finality is imperative, the adjudication process must also allow for claimants who had no notice of a right to challenge an ambiguous license and establish their ownership right. For in requiring finality we must also recognize the property right protections due to a water license owner. See State v. Nelson, 131 Idaho 12, 16, 951 P.2d 943, 947 (1998). Here, neither Shippy nor Cedar Creek had notice from IDWR or McInturff of the 2006 water right transfer, and were thus unaware that the water right was changing owners. Indeed, Shippy believed the right belonged to Cedar Creek because of the license's language and a water right's natural connection to the property it benefits. As the owner of the irrigated land, Cedar Creek believed the right accompanied the property. The appurtenance language of the license itself buoyed Shippy's and Cedar Creek's beliefs: for if the license truly is appurtenant to the land, then it would have transferred to Shippy via the appurtenance clause in Robinson's property deed and then to Cedar Creek when Shippy conveyed the property to the LLC. Only in 2015-when Mclnturff filed his notice of claim with the CSRBA-did Shippy finally discover that the water right was not officially in Cedar Creek's possession.

"Procedural due process requires that there must be some process to ensure that the individual is not arbitrarily deprived of his rights in violation of the state or federal constitutions." Aberdeen-Springfield Canal Co. v. Peiper, 133 Idaho 82, 91, 982 P.2d 917, 926 (1999) (citation omitted). Shippy and Cedar Creek are not reinterpreting the water license, nor are they amending it; they are trying to prove the right's original ownership at issuance, which was never established and ultimately confounded the Director of the IDWR. Such a license must be contestable lest we allow water rights to be usurped without notice to true owners.

While this is an unusual situation with a unique notation in the water right, I cannot agree with the majority's decision to label Cedar Creek's pursuit of its right as a collateral attack when it-and its successors-reasonably believed the right was safely attached to the land. Therefore I respectfully dissent from the majority's opinion.

Justice HORTON concurs.


text:
    STATE of Idaho, Plaintiff-Respondent, v. Jersson Neftaly Roque MEDINA, Defendant-Appellant.
    Docket Nos. 45117 & 45118
    Supreme Court of Idaho, Boise, January 2019 Term.
    Filed: August 27, 2019
    Nevin, Benjamin, McKay & Bartlett, Boise, for appellant Jersson Neftaly Roque Medina. Dennis Benjamin argued.
    Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent State of Idaho. Jeffery D. Nye argued.
   STEGNER, Justice.

Following a jury trial, Jersson Neftaly Roque Medina (Medina) was convicted of trafficking heroin and conspiracy to violate the Uniform Controlled Substances Act. The charges were brought through two separate cases that arose out of the same set of facts. The two cases were consolidated and tried together. Medina now appeals his convictions, arguing that (1) fundamental error occurred when he appeared before the jury in chains; (2) fundamental error occurred when the jury instruction listing possible overt acts made in the furtherance of the conspiracy listed numerous acts that did not constitute a proper basis for him to have been found guilty; and (3) there was insufficient evidence to establish the agreement element of the conspiracy charge. For the following reasons, we affirm Medina's judgment of conviction on the trafficking charge and vacate the judgment of conviction on his conspiracy charge.

I. FACTUAL AND PROCEDURAL BACKGROUND

After a police-initiated heroin buy, both Medina and Sharon Bernal-Valadez (Valadez) were arrested in Chubbuck, Idaho, on April 14, 2016. The facts are as follows.

In May of 2015, Logan Joyce (Joyce), a heroin dealer in the Pocatello area, would travel to Salt Lake City, Utah, to purchase heroin to sell in Idaho. Joyce would then return to his home in Chubbuck and sell the heroin in Pocatello. Joyce purchased the heroin in Salt Lake City at a homeless shelter. After doing this for some time, Joyce got to the point where he wanted to sell more than his then-supplier could provide. At this point, Joyce's supplier introduced him to Medina. By late March 2016, Joyce would contact Medina every couple of weeks to purchase substantial quantities of heroin. Joyce would tell Medina how much money he had, and Medina would inform him how much heroin Joyce could purchase with that amount of money. Medina would typically transport the corresponding quantity of heroin from Salt Lake City to Chubbuck, where Joyce would pay Medina the agreed-upon amount. A typical transaction at that point in time involved approximately 130 grams of heroin for $8,000. On occasion, Joyce would travel to Salt Lake City to pick up the heroin.

On either April 9 or 10 of 2016, Joyce met with Medina at Joyce's apartment in Chubbuck to buy heroin. Joyce paid Medina $8,000 for approximately 130 grams of heroin. The transaction was set up through an exchange of text messages.

Unbeknownst to Joyce, months prior to this transaction, Detective Lee Edgley (Edgley) received information that Joyce had been distributing heroin and began investigating Joyce. During the investigation, undercover law enforcement officers made several controlled purchases of heroin from Joyce. After the controlled buys, a search warrant was obtained and law enforcement searched Joyce's residence on April 12, 2016, a few days after Joyce's meeting with Medina. Approximately 153 grams of heroin were seized from Joyce's apartment. Joyce was arrested.

In his post-arrest interview, Joyce showed Edgley a text message conversation referencing Joyce wiring money to an account in Valadez's name in order to pay Medina for the heroin. At that time, Joyce also showed Edgley the most current phone number he had to contact Medina.

On April 13, 2016, after Joyce was booked into jail and a search warrant for Joyce's phone was obtained, Edgley began a text conversation with the number Joyce had told him was Medina's. Edgley arranged to purchase 130 grams of heroin, which would be delivered to "Joyce" the next day for $8,000, with $7,000 paid upfront and an additional $1,000 that would be paid at a later time. The text from Medina's number replied that 130 grams of heroin would be delivered around 5:00 p.m. on April 14, 2016.

On April 14, 2016, after receiving a text message informing him the delivery was close, Edgley, along with other detectives, saw a vehicle registered to Valadez pull into Joyce's apartment complex. The detectives then surrounded the vehicle and removed Valadez and Medina. As Medina was getting out of the vehicle, Edgley seized Medina's phone. He then used Joyce's phone to call the number he had been texting to set up the drug deal. Medina's phone rang, demonstrating that it had been used, presumably by Medina, on the other end of the drug deal.

A canine unit was called and alerted on the car; Medina and Valadez were handcuffed and placed in the back seat of a marked police car. Unbeknownst to Medina and Valadez, the police were recording their conversation. While in the police car, Medina asked Valadez if the officers had found "it" on her. Valadez told Medina to "be quiet." Medina apparently asked again if Valadez still had the drugs. Valadez replied, "Yes, it's here."

Eventually, a female officer arrived and took Valadez from the police car. The officer searched Valadez. That search uncovered approximately 126 grams of heroin (in gross weight including the packaging). Valadez testified that she had placed the package of heroin in her pants at the direction of Medina, knowing the package contained drugs.

On May 19, 2016, a Criminal Information was filed charging Medina with the crime of trafficking in heroin, a violation of Idaho Code section 37-2732B(a)(6)(C). The information alleged that Medina possessed, manufactured, delivered, or knowingly possessed at least twenty-eight grams of heroin. On June 16, 2016, a separate case arose from a second Criminal Information charging Medina with the crime of conspiracy to violate the Uniform Controlled Substances Act, pursuant to Idaho Code sections 37-2732 and 18-1701. That Information alleged that Medina conspired with Valadez, Joyce, or other unnamed people, and agreed to traffic heroin on or between April 2 and 14, 2016. The two separate charges arose from the same set of facts.

After a hearing and upon stipulation of the parties, the district court ordered the two cases be tried together. A jury found Medina guilty of both charges. On April 20, 2017, the district judge entered judgments of conviction and sentenced Medina to twenty years in the penitentiary with fifteen years determinate, on each charge. The sentences were ordered to run concurrently. Medina timely appealed both convictions.

II. STANDARD OF REVIEW

Alleged constitutional errors during trial that are not followed by a contemporaneous objection "must be reviewed under the fundamental error doctrine." State v. Bernal , 164 Idaho 190, 193, 427 P.3d 1, 4 (2018) (citing State v. Perry , 150 Idaho 209, 228, 245 P.3d 961, 980 (2010) ). (The fundamental error standard is produced below.) This Court reviews issues of law de novo. State v. Eliasen, 158 Idaho 542, 546, 348 P.3d 157, 161 (2015) (citing State v. Goggin, 157 Idaho 1, 4, 333 P.3d 112, 115 (2014) ).

III. ANALYSIS

A. It was not fundamental error for Medina to appear in chains before the jury.

At trial, Joyce identified Medina in the courtroom by stating that Medina was "wearing a white long-sleeve shirt, orange Crocs, chains, and a tan jumpsuit." (Italics added.) A second witness, Sergeant Todd Orr (Orr), corroborated Joyce's identification. Medina concedes that no objection was made when he appeared before the jury in chains and jail garb and that the fundamental error test controls. He nevertheless maintains that all three elements of the fundamental error test have been satisfied and a new trial is required. The State counters that Medina has failed to prove any elements of the fundamental error test.

In order to demonstrate fundamental error, a defendant

bears the burden of persuading the appellate court that the alleged error: (1) violates one or more of the defendant's unwaived constitutional rights; (2) plainly exists (without the need for any additional information not contained in the appellate record, including information as to whether the failure to object was a tactical decision); and (3) was not harmless. If the defendant persuades the appellate court that the complained of error satisfies this three-prong inquiry, then the appellate court shall vacate and remand.

Perry, 150 Idaho at 228, 245 P.3d at 980 (2010) ; see also State v. Hall, 163 Idaho 744, 821, 419 P.3d 1042, 1119 (2018), reh'g denied (June 28, 2018) (unobjected-to use of physical restraints reviewed for fundamental error). Here, Medina cannot satisfy the first prong of the fundamental error test because there is no evidence that he was compelled by the district court to wear shackles.

Medina claims that he had a constitutional right to be free from shackles in front of the jury and that he did not waive that right. Medina relies on Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) for the articulation of this right. In response, the State relies on Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) for the proposition that in order to establish constitutional error, the appearance in shackles had to be compelled. The State thus posits that Medina cannot demonstrate constitutional error satisfying the first prong of the fundamental error test because his failure to object to his shackles necessarily undermines his ability to show he was compelled to appear at trial in shackles. For this conclusion, the State argues the compulsion requirement regarding jail clothes set out in Estelle should be extended to physical restraints. We hold that the State is correct in this regard, and evidence demonstrating compulsion to wear shackles must be present in order to constitute constitutional error.

In Estelle, the U.S. Supreme Court held that when an attorney failed to object to a defendant's jail garb at trial, no constitutional violation occurred. 425 U.S. at 512, 96 S.Ct. 1691. The Supreme Court reasoned that the failure to object to the jail garb "negate[d] the presence of compulsion necessary to establish a constitutional violation." Id. at 513, 96 S.Ct. 1691.

In 2006, the U.S. Supreme Court ruled on the related issue of a defendant appearing in front of a jury in shackles. Deck, 544 U.S. at 629, 125 S.Ct. 2007. Deck held, "[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial." Id. Deck held that an accused has a constitutional right to appear at trial without visible physical restraints, absent a finding that the visible restraints were necessary. Id. The Supreme Court found the following as possible justifications for requiring shackles: courtroom security; peace and decorum of the tribunal; potential escape risk; or similar concerns. See id. at 628, 125 S.Ct. 2007.

The unqualified language used by the Supreme Court in Deck suggests that any absence of trial court findings regarding shackles would amount to a constitutional violation-whether or not an objection was raised by the defendant. Such a reading would both impute a duty on the trial judge to make findings regarding shackles even without any prompting from defense counsel and would imply that errors regarding shackles do not require the same compulsion established in Estelle for jail garb. However, defense counsel in Deck objected to the shackles, and the trial judge ordered the defendant to wear shackles notwithstanding the objection. Id. at 625, 125 S.Ct. 2007. Thus, Deck may have presupposed the compulsion requirement established in Estelle but did not explicitly state as much. This Court now holds the compulsion requirement from Estelle applies to shackles, despite the noted difference that "[u]nlike physical restraints, ... compelling an accused to wear jail clothing furthers no essential state policy." Estelle, 425 U.S. at 505, 96 S.Ct. 1691.

First, refusing to apply the compulsion requirement to shackles would impute a duty on the trial court which has not previously existed. This concern was addressed in Estelle :

[T]he trial judge [cannot] be faulted for not asking the respondent or his counsel whether he was deliberately going to trial in jail clothes. ... Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would rewrite the duties of trial judges and counsel in our legal system.

Id. at 512, 96 S.Ct. 1691.

Estelle's articulation of the trial court's role and the determination to apply the compulsion requirement to shackles comports with this Court's established rule that trial courts make appropriate findings regarding restraints. This Court has stated that "the trial judge must, in fulfilling his duty to preside over the trial, decide the question [of whether a defendant must remain in restraints] for himself." State v. Crawford, 99 Idaho 87, 94, 577 P.2d 1135, 1142 (1978) ). This Court recognized in Crawford the duty of the trial court is not one to sua sponte inquire when a defendant appears before the jury in jail garb or restraints. The trial court's duty is to "decide the question" regarding a defendant's appearing in restraints before a jury. The essence of deciding a "question" is for the court to be presented with an issue to resolve-through a defense objection or motion in that regard.

Additionally, extending the compulsion requirement to shackles furthers this Court's policy to "reinforce the judicial preference for contemporaneous objections before the trial court[,]" which "prevents the litigant from sandbagging the court ...." Perry, 150 Idaho at 220, 224, 245 P.3d at 972, 976. To hold otherwise would provide an incentive to defendants to remain silent about visible shackles in the hope that the trial court neglects to make sua sponte findings, and, in the event of an unfavorable outcome, allege error on appeal. Accordingly, we hold that failing to object to visible shackles undermines the required compulsion to amount to a constitutional violation; such a holding "encourage[s]

the making of timely objections that could result in the error being prevented or the harm being alleviated." Id. at 226, 245 P.3d at 978.

Importantly, none of this means that a district court cannot, or should not, address the issue of shackles in its courtroom. Given that the use of shackles is inherently prejudicial, trial courts should take an active role in ensuring a substantively and procedurally fair proceeding. Accordingly, this Court encourages judges to address, sua sponte if necessary, any issues relating to clothing or shackles in the presence of the State and defendant on the record prior to the jury being empanelled and obviously outside the jury's presence.

As a result, Medina's failure to object to his visible shackles "is sufficient to negate the presence of compulsion necessary to establish a constitutional violation" and prevents him from meeting his burden regarding the first prong of the fundamental error test. Estelle, 425 U.S. at 513, 96 S.Ct. 1691.

B. Fundamental error occurred by including multiple legally insufficient overt acts in Jury Instruction No. 17.

Medina contends that Jury Instruction No. 17, regarding his conspiracy conviction, included multiple erroneous overt acts, which amounted to fundamental error. Medina concedes the instruction was not objected to; thus, review of the instruction is subject to the fundamental error test. The State argues that any error in the instruction was harmless.

"When a defendant fails to object to a jury instruction, [this Court] ... review[s] the jury instruction for fundamental error" under Perry . State v. Adamcik, 152 Idaho 445, 472, 272 P.3d 417, 444 (2012) (citations omitted). However, the initial inquiry is whether the jury instruction was erroneous at all. State v. Skunkcap, 157 Idaho 221, 227, 335 P.3d 561, 567 (2014) ; State v. Carver, 155 Idaho 489, 493, 314 P.3d 171, 175 (2013). This Court reviews "the trial court's jury instructions de novo to determine 'whether, when considered as a whole, they fairly and adequately present the issues and state the applicable law.' " State v. Dunlap, 155 Idaho 345, 364, 313 P.3d 1, 20 (2013) (quoting Adamcik, 152 Idaho at 472, 272 P.3d at 444 ). "Whether the instruction was erroneous will depend upon how a reasonable juror would have interpreted the instruction." Skunkcap, 157 Idaho at 227-28, 335 P.3d at 567-68 (citing State v. Hairston, 133 Idaho 496, 515, 988 P.2d 1170, 1189 (1999) ).

"[A] conspiracy is established upon proof beyond a reasonable doubt that there is an agreement between two or more individuals to accomplish an illegal objective, coupled with one or more overt acts in the furtherance of the illegal purpose ...." State v. Smith, 161 Idaho 782, 787, 391 P.3d 1252, 1257 (2017) (alteration in original) (quoting State v. Garcia, 102 Idaho 378, 384, 630 P.2d 665, 671 (1981) ), reh'g denied (Apr. 20, 2017). Thus, an overt act must be (1) committed by one of the coconspirators (i.e., someone who is a party to the agreement) and (2) the act must be done in furtherance of the illegal purpose. Id.

The jury instruction in question required the jury to find the following:

[That] one of the parties to the agreement performed at least one of the following acts:
1. On or about April 12, 2016, a search warrant was executed at apartment at 4170 Hawthorne in Chubbuck, Idaho belonging to JOYCE. During the search law enforcement seized approximately 157 grams of Heroin, JOYCE's cell phone and numerous other items.
2. JOYCE provided detectives with information, including the phone number (716-773-9155) of the person ("Jeffrey") from whom JOYCE had previously purchased Heroin.
3. JOYCE's phone contained a text message from JOYCE to [Valadez] indicating JOYCE had wired $3,000 to [Valadez] on or about April 2, 2016.
4. On or about April 13-14, 2016, detectives used JOYCE's phone to contact the above phone number and arranged to purchase 130 grams of Heroin for $8,000 from "Jeffrey."
5. On or about April 14, 2016, [Valadez] drove a vehicle to 4170 Hawthorne in Chubbuck, Idaho and parked.
6. MEDINA, aka "Jeffrey," was a passenger in the vehicle.
7. MEDINA's cell phone was removed from his hands; a detective called the above number and the phone seized from MEDINA rang with the detective's phone number visible on the screen.
8. MEDINA told detectives he was there to collect $1,000 from JOYCE and that he and [Valadez] bring Heroin to Pocatello from Utah.
9. [Valadez] was searched and approximately 127 grams of Heroin [sic] were discovered on her person.
[ ] and such act was done for the purpose of carrying out the agreement.

Medina contends that none of the listed acts, for one reason or another, support a guilty verdict of conspiracy. The State admitted that "at least some of these acts should not have been included in the jury instructions[;]" nevertheless, the State argues that even if some of the acts were invalid, Medina cannot carry his burden under the fundamental error analysis and show that the error was harmful.

The State admits act 1 is invalid as it was undertaken by law enforcement, not by a coconspirator. Act 2 is also invalid as the act of Joyce cooperating with police officers cannot be said to be in furtherance of an illegal purpose. Act 4 describes actions of only law enforcement and is therefore also invalid. Act 7 describes acts of law enforcement and contains no act in furtherance of the illegal purpose. Act 8, apart from being a possible misstatement of facts, describes Medina making statements to detectives. A statement to police officers is not an act in furtherance of an illegal purpose. As such, a clear majority of the purported "overt acts," acts 1, 2, 4, 7, and 8 should never have been included in the jury instruction. The problem with the jury instruction does not end here.

Act 6 is incomplete and cryptic. It states in its entirety: "MEDINA, aka Jeffrey, was a passenger in the vehicle." It is difficult to ascribe any meaning to it, unless it is read in conjunction with act 5. This undermines the instruction's directive that only one act will suffice in order to convict Medina of conspiracy. If an act must be read in conjunction with another alleged overt act to give it meaning, it is incomplete.

Act 9 is likewise tenuous. It states Valadez "was searched and approximately 127 grams of Heroin [sic] were discovered on her person." Although it might be inferred from this language that Valadez possessed the heroin in furtherance of the illegal purpose, Medina correctly points out that act 9 describes an act by law enforcement which cannot be done in furtherance of the illegal purpose. At a minimum, act 9 is poorly worded. The instruction is inartful and opens the door to confusion by allowing the jury to conclude a search by law enforcement constituted an overt act.

Act 3 is also not the model of clarity. It states: "JOYCE'S phone contained a text message from JOYCE to [Valadez] indicating JOYCE had wired $3,000 to [Valadez] on or about April 2, 2016." Confusion arises because it is not clear what overt act is alleged. Is it the sending of the text or the wiring of the $3,000? At a minimum, act 3 is unclear.

Finally, that leaves act 5, which alleges, "[o]n or about April 14, 2016, [Valadez] drove a vehicle to 4170 Hawthorne in Chubbuck, Idaho and parked." Even assuming acts 3 and 5 contain sufficient allegations of overt acts, they are buried within multiple improper acts that may very well have misled the jury or been relied on by the jury to establish the required overt act element.

Jury instructions, when considered as a whole, are meant to fairly and adequately present the issues and state the applicable law. See Dunlap, 155 Idaho at 364, 313 P.3d at 20. Even viewing the instruction in this context, we are unpersuaded that Instruction No. 17, as a whole, either correctly stated the law or fairly presented the overt acts that would provide adequate support for Medina's conspiracy conviction. At best, Instruction No. 17 grossly misstated the law, and, at worst, it invited the jury to convict Medina of conspiracy by relying on multiple legally insufficient and inappropriate overt acts.

An erroneous jury instruction violates due process if it omits a contested element of a crime or if it relieves the State of the burden of proving every element of the crime beyond a reasonable doubt. State v. Draper, 151 Idaho 576, 588, 261 P.3d 853, 865 (2011). "[T]he State must prove every element of the offense, and a jury instruction violates due process if it fails to give effect to that requirement." Id. (quoting State v. Anderson, 144 Idaho 743, 749, 170 P.3d 886, 892 (2007) ).

Including multiple legally insufficient overt acts in the way that occurred here allowed the jury to establish guilt based on acts lacking the requisite components-that the overt act was committed by one of the coconspirators and that the overt act was done in furtherance of the illegal purpose. As a result, Instruction No. 17 "relieved the State of its burden of proving every element of the offense" and amounted to constitutional error; thus, the first prong of the fundamental error test has been satisfied. See id. at 590, 261 P.3d at 867 (finding "[t]he failure to clearly require the jury to find that an overt act was committed for the purpose of advancing the conspiracy relieved the state of its burden").

The second prong of the fundamental error test requires the error to be clear and obvious from the record and that the record discloses that the failure to object was clearly not a strategic or tactical decision. Perry, 150 Idaho at 226, 245 P.3d at 978. The language of the instruction demonstrates the clear error. Regarding the latter requirement of the second prong, the nature of the error, as determined from the record, demonstrates that the failure to object to the instruction could not have been a strategic decision. As discussed, the erroneous instruction allowed a jury to convict Medina without finding the required elements of an overt act of a coconspirator. There is no conceivable strategy in which failing to object to this instruction might have aided Medina's defense when the instruction, in effect, made it vastly easier for the jury to find Medina guilty of conspiracy. Accordingly, the second prong of the fundamental error test has been satisfied.

Medina's final burden under the fundamental error test requires him to show the error was not harmless. Perry , 150 Idaho at 226, 245 P.3d at 978. Accordingly, Medina must show "a reasonable possibility that the error 'affected the outcome of the trial court proceedings.' " Bernal, 164 Idaho at 193, 427 P.3d at 4 (quoting Perry, 150 Idaho at 226, 245 P.3d at 978 ).

This Court has articulated certain guidelines regarding how erroneous jury instructions pertain to the prejudice prong of the fundamental error test. First, "[a]n erroneous instruction will not constitute reversible error unless the instructions as a whole misled the jury or prejudiced a party." State v. Mann, 162 Idaho 36, 43, 394 P.3d 79, 86 (2017) (quoting Draper, 151 Idaho at 588, 261 P.3d at 865 ). "An erroneous instruction is prejudicial when it could have affected or did affect the outcome of the trial." Garcia v. Windley, 144 Idaho 539, 543, 164 P.3d 819, 823 (2007) (quoted in citation sentence with approval in Draper, 151 Idaho at 591, 261 P.3d at 868 ).

Given the manifest errors in Instruction No. 17, it was, as a whole, misleading to the jury. The jury here likely "read the instruction to omit the required element that an overt act occurred in the furtherance of the conspiracy[,]" as it cannot be said that the jury in fact relied on proper overt acts. See Draper, 151 Idaho at 591, 261 P.3d at 868. Consequently, there is a reasonable possibility that the jury relied on the erroneous overt acts. Perry, 150 Idaho at 226, 245 P.3d at 978. The error thus affected the outcome of Medina's conspiracy charge by making a guilty verdict much more easily reached. Initially, the third prong of the fundamental error test has been demonstrated as the instruction was harmful; however, this Court has noted certain circumstances where an erroneous instruction will not be found harmful. These circumstances are not applicable here.

First, "[w]here the jury instructions, taken as a whole, correctly state the law and are not inconsistent, ... it will be assumed that the jury gave due consideration to the whole charge contained in all the instructions and was not mislead by any isolated portion thereof." Draper, 151 Idaho at 590, 261 P.3d at 867 (alteration in original) (quoting State v. Enno, 119 Idaho 392, 405, 807 P.2d 610, 623 (1991) ). Although only the overt act element has been found erroneous, it is not an "isolated portion" of the instruction. A positive overt act was required in order for Medina to be found guilty of conspiracy. Instruction No. 17 was so pervasively incorrect, it can only be understood to have misled the jury. Moreover, the State points to no other instruction that may have remedied the error or correctly instructed the jury on overt acts. See id. at 591, 261 P.3d at 868.

Finally, we have previously held that a partially erroneous instruction omitting an element of a crime may be found harmless if "the evidence supporting a finding on the omitted element is overwhelming and uncontroverted, so that no rational jury could have found that the state failed to prove that element ...." Id. (quoting Perry, 150 Idaho at 224, 245 P.3d at 976 ). This case is distinguishable from that circumstance because, here, an element was not merely omitted; it was substituted by the inclusion of inaccurate overt acts which drastically reduced the State's burden and paved the way to an unconstitutional conviction. As a result, the error cannot be said to be harmless and is therefore fundamental, necessitating reversal of Medina's conspiracy conviction.

Because we are vacating the judgment of conviction on the conspiracy charge based on the erroneous jury instruction, it is unnecessary to address Medina's assertion that there was not substantial and competent evidence to support a jury's finding of an agreement among coconspirators.

IV. CONCLUSION

Medina's conviction for conspiracy to violate the Uniform Controlled Substances Act is vacated. Medina's conviction for trafficking heroin is affirmed. The case is remanded to the district court for proceedings consistent with this opinion.

Chief Justice BURDICK, Justices BRODY, BEVAN and MOELLER concur.

      At the outset, we question whether "conspiracy to violate the Uniform Controlled Substances Act" was the appropriate way to charge Medina under these circumstances. The Uniform Controlled Substances Act is 120 pages in length in its current iteration. There are fifty-seven sections of the Act, not counting subparts. Medina was found guilty of violating Idaho Code section 37-2732B(a)(6)(C), which is known as "trafficking in heroin." Accordingly, the appropriate code section to charge Medina with conspiracy would have been Idaho Code section 37-2732B(b). At a minimum, we do not approve of the practice of generically charging someone with "conspiracy to violate the Uniform Controlled Substances Act" without referring to a specific section of the Idaho Code. However, because Medina has not challenged the lack of specificity in the charging document, we need not address this issue.

      As can be gleaned from the testimony of Joyce and Orr, Medina was also apparently dressed in jail garb during trial. However, Medina has not challenged this aspect of his trial.

      Act 8 claims that Medina told detectives he was in Pocatello to collect money from Joyce and that he and Valadez would bring heroin to Pocatello. Although Medina may have admitted to being in Pocatello to pick up money from Joyce, the transcript shows that Medina denied the existence of drugs when speaking to the police.

      This Court has recently addressed the second and third prongs of the fundamental error test in State v. Miller, 165 Idaho 115, 443 P.3d 129 (2019), reh'g denied (June 12, 2019). However, Miller was issued after the parties in this case argued on appeal. Thus, they did not have the opportunity to conform their arguments to Miller 's articulation of the standard. As such, this opinion will apply the fundamental error test as established before Miller.