NATURE OF THE CASE
Appellant, George Frank Lewis (“Lewis”), was convicted of the crime of lewd conduct with a minor under the age of sixteen, in violation of I.C. § 18-1508. He was sentenced to a fixed term of life in prison. On appeal, Lewis contends that he was tried for the crime of lewd conduct in violation of the Double Jeopardy Clause of the United States Constitution based upon the claim that a previous charge (knowingly transferring a bodily fluid containing the HIV virus, I.C. § 39-608) resulted in a mistrial and, according to Lewis, involved proof of the same conduct. In addition, Lewis contends that the district court erred in delaying his trial, selecting a jury from another county, allowing certain evidence and testimony to be presented to the jury, denying his motion for a new trial, and sentencing him to a fixed term of life in prison. For the reasons set forth below, we affirm the decision of the district court.
BACKGROUND AND PRIOR PROCEEDINGS
On June 11, 1989, a criminal complaint was filed against Lewis. In the complaint, the State alleged that Lewis had committed the crime of lewd conduct with a minor under the age of sixteen, in violation of I.C. § 18-1508. More specifically, the complaint stated that the conduct occurred in February of 1989, with a fifteen-year-old boy and involved the acts of Lewis performing oral sex and attempting to perform anal sex upon the boy, both with the intent to gratify Lewis’ sexual desire. After a preliminary hearing held on June 13, 1989, an information was filed against Lewis on June 15, 1989. Lewis was arraigned on the charges and pled not guilty.
On September 19, 1989, the parties appeared at the time set for jury trial by the court. At this hearing, the court advised the parties that trial needed to be reset. Lewis requested a “trial as soon as possible.” The court inquired as to certain dates, heard responses, and the parties fi*339nally agreed to set trial for November 20, 1989, at 9:00 a.m.
On November 6, 1989, Lewis filed a motion to dismiss the information. Grounds for the motion were: (1) Lewis had been tried for attempting to transfer the HIV virus, “which contained the identical issue as in this matter;” and (2) the HIV charge ended in a mistrial, over Lewis’ objections, and the State is now collaterally estopped from further proceedings. In support of the motion, Lewis cited “principles of res judicata and the ‘double jeopardy’ clause of the United States Constitution.” During oral argument on this motion, counsel for Lewis discussed I.C. § 18-301, a statutory double jeopardy constraint.
On November 7, 1989, the parties again appeared before the court. At the hearing, Lewis withdrew his November 6, 1989 motion to represent himself. In addition, the court discussed its concern about selecting a jury due to publicity, and whether jury selection in a county other than Ada County should be considered. Lewis requested that jury selection be from Ada County. The State requested that the jury be selected from another county. Finally, the court ruled that there be no mention of Lewis being HIV-positive.1
On November 17, 1989, Lewis filed a motion in limine and a motion to suppress. Among other things, Lewis asked that the court not allow into evidence a statement made by Lewis to a police officer regarding his sexual preference, a videotape, testimony from an expert witness, and certain property that was seized from his apartment.
On November 20,1989, the parties met in court for a status conference. At this conference, the court announced its decision to select a jury from another county, to which Lewis objected, stating his desire to go to trial immediately. The court responded that another trial was going on at the time, and it set jury trial for November 28, 1989. Finally, the court heard argument on Lewis’ claim of double jeopardy.
Also on November 20, 1989, Marji Shepherd, Ada County Jury Commissioner, filed an affidavit stating that she interviewed seventy-six prospective jurors, asking them questions concerning their ability to be fair and impartial in the Lewis case, as well as their familiarity with Lewis, including the AIDS issue, through the media. In this regard, she stated that forty people said they could not be impartial, thirty-five said they could, and one was undecided. Jury Commissioner Shepherd also stated that, based upon her experience, it would be necessary to call at least 300 prospective jurors in Ada County in order to have a fair and impartial jury for Lewis, and that it would not be possible to sequester 300 prospective jurors.
On November 27, 1989, the court issued its decision on jury selection and Lewis’ motion to dismiss. As to jury selection, the court decided to impanel a jury from another county pursuant to I.C. § 19-1816, due to the publicity of Lewis’ HIV case, his HIV status not being relevant to this case, and the matters set forth in Jury Commissioner Shepard’s affidavit. The court denied Lewis’ motion to dismiss. In so doing, the court stated that if Lewis had been acquitted in the HIV case, the State would be collaterally estopped from proceeding in this case. However, since a mistrial was declared and there was no final judgment on whether Lewis and the victim had sexual contact, the court concluded that this prosecution was not barred. In addition, the court noted that I.C. § 39-608, the statute relating to transferring the HIV virus, does not require sexual contact or that the victim be under the age of sixteen.
On November 29, 1989, the parties again met in court to take up motions. At the hearing, Lewis filed an amended motion to *340suppress. The amended motion to suppress, regarding all videotapes, writings, notes, and letters seized, cited the Fourth Amendment to the United States Constitution and article I, section 17 of the Idaho Constitution, and claimed that probable cause did not exist to support the warrant. Additionally, Lewis filed an affidavit stating that he did not consent to the May 5, 1989, search of his premises. The case proceeded to trial.
On December 5, 1989, the sixth day of jury trial, the jury reached a verdict of guilty.
On January 19, 1990, Lewis filed a motion to reappoint August H. Cahill as defense counsel.2 He also filed a motion for a new trial pursuant to I.C.R. 34 and I.C. § 19-2406, stating that “[n]ew evidence exists which substantially impeaches the credibility of the state’s primary witness____” In support of this motion, Lewis filed an affidavit of Joie Hein. Mr. Hein stated that the victim could not have seen a certain videotape with Lewis on a certain day because Hein had borrowed that tape from Lewis’ roommate on the day in question.
On January 29, 1990, a sentencing hearing was held. At the hearing, the court denied Lewis’ motion to strike certain evidence in the presentence investigation report, and it sentenced Lewis to a fixed life term in prison.
On February 8, 1990, Lewis’ roommate, Michael Carver, filed an affidavit. In his affidavit, Mr. Carver stated that he had lent the above-mentioned videotape to Joie Hein on the day the victim testified that he had watched it with Lewis.
On March 1, 1990, Lewis filed a notice of appeal. He appealed from the January 29, 1990 judgment pursuant to I.A.R. 11(c)(1).
On May 3, 1990, the parties met in court to argue the motion for a new trial. At the hearing, Lewis filed a motion to disqualify the presiding judge, and the parties agreed to continue the matter.
On May 23, 1990, Lewis filed a motion for reconsideration of sentence. The motion was made pursuant to I.C.R. 35.
On June 13, 1990, the court issued its decision and order denying the motion for a new trial. In denying the motion, the court cited State v. Drapeau, 97 Idaho 685, 551 P.2d 972 (1976), for the standard for granting a new trial based upon newly discovered evidence. Applying this standard, the court found, inter alia, that Lewis had not acted with due diligence to discover the new evidence because he had unrestricted access to Mr. Carver and Mr. Hein. In addition, the court found that the jury was properly selected from another county, commenting that there was no way to evaluate whether Boise-area people are more sensitized to gay issues.
ANALYSIS
We address the following issues:
I. Did the district court err in ruling that this case was not barred by the double jeopardy clause of the United States Constitution, U.S. Const, amend. V.
II. Did the district court abuse its discretion by continuing Lewis’ trial?
III. Did the district court violate a constitutional right or abuse its discretion by selecting a jury from another county?
IV. Did the district court err in denying Lewis’ motion to suppress evidence?
V. Did the district court correctly apply rules of evidence in admitting certain evidence at trial?
VI. Did the district court abuse its discretion by allowing the testimony of an expert witness?
VII. Did the district court abuse its discretion by denying Lewis’ motion for a new trial?
VIII. Did the district court abuse its discretion by sentencing Lewis to a fixed term of life in prison?
*341i.
DID THE DISTRICT COURT ERR IN RULING THAT THIS CASE WAS NOT BARRED BY THE DOUBLE JEOPARDY CLAUSE OF THE UNITED STATES CONSTITUTION, U.S. CONST.AMEND. V?
We hold that the district court did not err in ruling that Lewis’ prosecution for the crime of lewd conduct, I.C. § 18-1508 (1984)3, was not barred by double jeopardy because of his previous prosecution for the crime of transferring the HIV virus, I.C. § 39-6084, which ended in a sua sponte mistrial.
We begin our analysis of this issue with a review of three United States Supreme Court opinions dealing with double jeopardy.5 The three United States Supreme Court cases are: Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990); and United States v. Felix, — U.S.-, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992).
A. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932): In Blockburger, the defendant was charged with five counts of violating provisions of the Harrison Narcotic Act, and he was found guilty of the second, third, and fifth counts. The Court explained:
The second count charged a sale on a specified day of ten grains of the drug not in or from the original stamped package; the third count charged a sale on the following day of eight grains of the drug not in or from the original stamped package; the fifth count charged the latter sale also as having been made not in pursuance of a written order of the purchaser as required by the statute.
Blockburger, 284 U.S. at 301, 52 S.Ct. at 181. The relevant federal statutes provided:
It shall be unlawful for any person to purchase, sell, dispense, or distribute any *342of the aforesaid drugs [opium and other narcotics] except in the original stamped package or from the original stamped package; and the absence of appropriate tax-paid stamps from any of the aforesaid drugs shall be prima facie evidence of a violation of this section by the person in whose possession same may be found____
Blockburger, 284 U.S. at 300 n. 1, 52 S.Ct. at 180-81 n. 1.
It shall be unlawful for any person to sell, barter, exchange, or give away any of the drugs specified in section 691 of this title, except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue.
Blockburger, 284 U.S. at 300 n. 2, 52 S.Ct. at 181 n. 2.
On appeal, the defendant argued that the two sales charged in the second and third counts, having been made to the same person, constituted a single offense. Further, he argued that the fifth count, having been made not from the original stamped package and having been made not in pursuance of a written order, constituted one offense.
As to the defendant’s first argument, the Court held that the sales charged in the second and third counts, were “distinct and separate sales made at different times.” Blockburger, 284 U.S. at 301, 52 S.Ct. at 181. The Court explained that, although the purchaser paid for the additional quantity shortly after the first quantity was delivered, the first sale had been consummated by its delivery, making “[e]aeh of several successive sales eonstitute[] a distinct offense, however closely they may follow each other.” Blockburger, 284 U.S. at 302, 52 S.Ct. at 181.
As to the defendant’s second argument, the Court recognized that the above-quoted provisions of the Narcotic Act create “two distinct offenses,” one creating a crime of selling any of the drugs unless they are in or from the original stamped package, and the other creating a crime of selling any of the drugs without a written order from the purchaser. Blockburger, 284 U.S. at 303-04, 52 S.Ct. at 182. The Court stated the issue as whether, when there has been one sale, “both sections being violated by the same act, the accused committed two offenses or only one.” Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. In concluding that two offenses were committed, the Court held:
Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not____
“A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”
Blockburger, 284 U.S. at 304, 52 S.Ct. at 182 (citations omitted).
B. Grady v. Corbin, 495 U.S. 508, 110 5.Ct. 2084, 109 L.Ed.2d 548 (1990): In Grady, the defendant drove his vehicle across the double yellow line of the road, striking two oncoming vehicles. The driver of the second vehicle struck by the defendant died later that evening. The defendant was served with two tickets directing him to appear in the local court on a certain date for: (1) driving while intoxicated, a misdemeanor; and (2) failing to keep right of the median. Prior to the defendant’s scheduled appearance, an assistant district attorney began to prepare for a homicide prosecution in connection with the accident. The defendant entered guilty pleas to the two traffic tickets, and was given the minimum sentence for these two crimes. There was never any mention of the fatality at either the acceptance of the defendant’s guilty pleas or his sentencing hearing.
About two months after the sentencing hearing, a grand jury investigating the accident indicted the defendant, charging him *343with: (1) reckless manslaughter, (2) second degree vehicular manslaughter, and (3) criminally negligent homicide, all for causing the death of the driver of the second vehicle; (4) third degree reckless assault for causing injury to the passenger of the second vehicle; and (5) driving while intoxicated. Furthermore:
The prosecution filed a bill of particulars that identified the three reckless or negligent acts on which it would rely to prove the homicide and assault charges: (1) operating a motor vehicle on a public highway in an intoxicated condition, (2) failing to keep right of the median, and (3) driving approximately 45 to 50 miles per hour in heavy rain, “which was a speed too fast for the weather and road conditions then pending.”
Grady, 495 U.S. at 513-14, 110 S.Ct. at 2089. The defendant moved to dismiss the indictment, arguing that the prosecution would violate statutory and constitutional double jeopardy constraints.
The United States Supreme Court in Grady affirmed the New York Court of Appeals’ opinion, which agreed with the defendant’s argument. Grady, 495 U.S. at 515, 110 S.Ct. at 2089-90. The Court held that, in addition to the traditional Block-burger test,
[T]he Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.
Grady, 495 U.S. at 510, 110 S.Ct. at 2087 (footnote omitted).6
The Grady Court reached its holding by adopting reasoning set forth ten years earlier in Illinois v. Vitale, 447 U.S. 410, 100 5.Ct. 2260, 65 L.Ed.2d 228 (1980). It deemed the following analysis to “govem[ ] this case:”
Like Thomas Corbin, John Vitale allegedly caused a fatal car accident. A police officer at the scene issued Vitale a traffic citation charging him with failure to reduce speed to avoid an accident in violation of § ll-601(a) of the Illinois Vehicle Code. Vitale was convicted of that offense and sentenced to pay a $15 fine. The day after his conviction, the State charged Vitale with two counts of involuntary manslaughter based on his reckless driving. Vitale argued that this subsequent prosecution was barred by the Double Jeopardy Clause.
This Court held that the second prosecution was not barred under the traditional Blockburger test because each offense “require[d] proof of a fact which the other [did] not.” See Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. Although involuntary manslaughter required proof of a death, failure to reduce speed did not. Likewise, failure to slow was not a statutory element of involuntary manslaughter. Vitale, 447 U.S. at 418-19, 100 S.Ct. at 2266. Thus, the subsequent prosecution survived the Blockburger test.
But the Court did not stop at that point. Justice White, writing for the Court, added that, even though the two prosecutions did not violate the Block-burger test:
[I]t may be that to sustain its manslaughter case the State may find it necessary to prove a failure to slow or to rely on conduct necessarily involving such failure; it may concede as much prior to trial. In that case, because Vi-tale has already been convicted for conduct that is a necessary element of the more serious crime for which he has been charged, his claim of double jeopardy would be substantial____
Grady, 495 U.S. at 515-16, 110 S.Ct. at 2090 (citations omitted), quoting Vitale, 447 U.S. at 420, 100 S.Ct. at 2267.7
*344The United States Supreme Court fashioned a two-step double jeopardy analysis: (1) apply the Blockburger test; if the prosecution is not barred under Blockburger, then; (2) apply the Grady test. For the Blockburger test, the inquiry is whether the two or more offenses have “identical statutory elements or that one is a lesser included offense of the other....” Grady, 495 U.S. at 516, 110 S.Ct. at 2090 (emphasis added), citing Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). For the Grady test, “[t]he critical inquiry is what conduct the State will prove....” Grady, 495 U.S. at 521, 110 S.Ct. at 2093 (emphasis added).
The Grady Court applied the two-step double jeopardy analysis to the facts of that case. First, it recognized that the defendant conceded that the Blockburger test did not bar the prosecution of the reckless manslaughter, criminally negligent homicide, and third degree reckless assault offenses.8 Grady, 495 U.S. at 522, 110 S.Ct. at 2094. In applying the second step of the analysis, the Court turned to the prosecution’s bill of particulars, which was binding on the State as its theory of proof. Grady, 495 U.S. at 522-23, 110 S.Ct. at 2094, citing Corbin v. Hillery, 74 N.Y.2d 279, 290, 545 N.Y.S.2d 71, 75, 543 N.E.2d 714, 720 (1989), affirmed. The Grady Court quoted from the document, and held that the State admitted that it would prove the entirety of the conduct for which the defendant was convicted. Grady, 495 U.S. at 523, 110 S.Ct. at 2094.
C. United States v. Felix, — U.S. -, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992): The defendant operated a methamphetamine facility in Beggs, Oklahoma. In July of 1987, DEA agents raided the Beggs facility and shut it down. Subsequently, the defendant ordered materials for manufacturing methamphetamine to be delivered to him in Joplin, Missouri. DEA agents witnessed the Joplin transfer and arrested the defendant shortly thereafter.
The defendant was charged and convicted in Missouri for the crime of attempting to manufacture methamphetamine based upon the Joplin transfer. In the Missouri case, the Felix Court summarized what the government showed:
1. On August 26, 1987, the defendant asked to purchase the materials from a DEA informant;
2. The defendant made a down payment of $7,500 on the materials;
3. The defendant instructed the informant to deliver the materials to a Joplin hotel on August 31, 1987;
4. The informant met the defendant at that hotel on that date with the materials; and,
5. The defendant inspected the materials, hitched his car to the trailer in which the materials had been transported, and then he was arrested.
Felix, — U.S. at-, 112 S.Ct. at 1380.
At the trial in the Missouri case, the defendant disputed that he had the requisite criminal intent. In order to prove his intent, the government introduced evidence that the defendant had manufactured methamphetamine in Oklahoma. The Felix Court summarized this evidence as follows:
1. During the spring of 1987, the defendant had purchased material from the DEA agent for manufacturing methamphetamine;
2. The defendant gave those materials to Paul Roach in exchange for lessons on how to manufacture methamphetamine;
3. Roach testified that he and the defendant had made methamphetamine in a trailer near Beggs, Oklahoma; and,
4. Government agents seized the trailer but did not arrest the defendant, as the defendant avoided arrest by hiding in the nearby woods.
Felix, — U.S. at-, 112 S.Ct. at 1380. The Court admitted this evidence pursuant *345to F.K.E. 404(b), regarding the defendant’s state of mind with respect to the materials.
Subsequently, the defendant was charged and convicted in Oklahoma of one count of conspiracy to manufacture, possess, and distribute methamphetamine and seven substantive counts, four counts relating to manufacturing and possession with intent to distribute, one count relating to maintaining a methamphetamine manufacturing lab, and the last two counts relating to interstate travel with the intent to promote his illegal enterprise. “At trial, the Government introduced much of the same evidence of the Missouri and Oklahoma transactions that had been introduced in the Missouri trial.” Felix, — U.S. at-, 112 S.Ct. at 1381.
On appeal to the United States Court of Appeals for the Tenth Circuit, the convictions for conspiracy and the first five substantive counts were reversed based upon the Grady test. The United States Supreme Court reversed the Court of Appeals.
As to°the substantive counts, the Felix Court stated that “[t]he actual crimes charged in each case were different in both time and place; there was absolutely no common conduct linking the alleged offenses.” Felix, — U.S. at-, 112 S.Ct. at 1382. In this regard:
The Court of Appeals appealed] to have acknowledged as much, as it concentrated not on the actual crimes prosecuted in the separate trials, but instead on the type of evidence presented by the Government during the two trials____ Thus, the Court of Appeals holding must rest on an assumption that if the Government offers in evidence in one prosecution acts of misconduct that might ultimately be charged as criminal offenses in a second prosecution, the latter prosecution is barred under the Double Jeopardy Clause.
Felix, — U.S. at-, 112 S.Ct. at 1382. The Felix Court disagreed with this rationale, reiterating that “a mere overlap in proof between two prosecutions does not establish a double jeopardy violation.” Felix, — U.S. at-, 112 S.Ct. at 1382. It also pointed to the Grady opinion’s disclaimer of adopting a “same evidence” test.9 Felix, — S.Ct. at-, 112 S.Ct. at 1382, citing Grady, 495 U.S. at 521 n. 12, 110 S.Ct. at 2093 n. 12.
D. Application of the Double Jeopardy Analysis to the Present Case.
1. Jeopardy Attached in Lewis’ First Trial: In the HIV case, the jury was impanelled and sworn. “Jeopardy attaches when a jury is sworn.” State v. Sharp, *346104 Idaho 691, 693, 662 P.2d 1135, 1137 (1983), citing Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). Jeopardy did attach in Lewis’ first trial. We must therefore analyze the issue of whether Lewis was twice placed in jeopardy.
2. The Traditional Blockburger Test: The traditional Blockburger test requires us to examine the elements of each crime and determine whether each crime requires proof of a fact that the other does not. Grady, 495 U.S. at 516, 110 S.Ct. at 2090.
The crime of lewd conduct with a minor or child under sixteen, I.C. § 18-1508 (1984), contains the following elements:
(la) A lewd or lascivious act committed upon or with the body or a body part of a minor or child under the age of sixteen; or
(lb) Involving a minor or child in any act of bestiality or sadomasochistic abuse or lewd exhibition, as defined in I.C. § 18-1507; and
(2) Intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of the defendant or victim.
The crime of transferring a body fluid which may contain the HIV virus, I.C. § 39-608, contains the following elements:
(la) Expose another person in any manner with the intent to infect; or
(lb) With defendant’s knowledge that he or she has been afflicted with acquired immunodeficiency syndrome (AIDS), AIDS related complexes (ARC), or other manifestations of human immunodeficiency virus (HIV); and
(2) A transfer or attempted transfer of body fluid, tissue, or organs to another person.
I.C. § 39-608(1). The statute goes on to define “body fluid” as, among other things, semen, I.C. § 39-608(2)(a), and “transfer” as including, among other modes sexual and otherwise, anal-genital contact, I.C. § 39-608(2)(b). Finally, consent and medical advice are defenses to I.C. § 39-608(1). I.C. § 39-608(3)(a).
It is clear from our examination of the statutory elements of each crime that the Blockburger test is satisfied. In order to prove a violation of the HIV offense, it is not necessary to prove that the victim is under the age of sixteen, that the defendant had an intent to arouse, appeal to, or gratify his or her, or the victim’s, lust, passions, or sexual desires—all of which are elements of the lewd conduct crime. In order to prove a violation of the lewd conduct statute, it is not necessary to prove that the defendant had an intent to infect the victim or expose the victim with knowledge of his or her HIV status, or that any body fluid, tissue, or organ was transferred to the victim—all of which are elements of the HIV crime. Therefore, we hold that the traditional Blockburger test, which focuses upon the elements of each crime, is satisfied in this case.
3. The Grady Test: The second part of the double jeopardy analysis requires us to focus upon the conduct which the State intended to prove in the HIV case and the conduct it proved at the lewd conduct trial.10 Grady, 495 U.S. at 521, 110 S.Ct. at 2093.
In the lewd conduct case, the State alleged the following: (1) during February of 1989, the defendant committed a lewd and lascivious act upon the body of the victim; (2) the victim was under the age of sixteen years old; and (3) the defendant had the intent to gratify his sexual desire.
In the HIV case, the indictment read: GEORGE FRANK LEWIS is accused by the Grand Jury of Ada County by this Indictment, of the crime of KNOWINGLY ATTEMPTING TO TRANSFER BODY FLUIDS WHICH MAY CONTAIN THE HIV VIRUS, I.C. § 39-608 committed as follows:
That the defendant, GEORGE FRANK LEWIS, on or about February, 1989, in the County of Ada, State of Idaho, did attempt to transfer his body fluids to another person, knowing that he has been afflicted with the Acquired Immunodeficiency Syndrome (AIDS), AIDS related complexes (ARC), or other manifestations of the Human Immunodeficiency Virus, to wit: attempting to anal pene*347trate [the victim] with his penis, with the intent to gratify the sexual desires of the defendant, by passing semen onto or into [the victim’s] body.
While the State may have introduced evidence in the lewd conduct case that it would have introduced in the HIV case, it is clear that “a mere overlap in proof between two prosecutions does not establish a double jeopardy violation.” Felix, — U.S. at-, 112 S.Ct. at 1382. Instead, the Grady test looks only to “what conduct the State will prove, not the evidence the State mil use to prove that conduct.” Grady, 495 U.S. at 521, 110 S.Ct. at 2093 (emphasis added). Although the HIV charge and the lewd conduct charge may have arisen at or near the same time and place, the Grady test is not a “same transaction” test. Felix, — U.S. at-, 112 S.Ct. at 1385; Grady, 495 U.S. at 523 n. 15, 110 S.Ct. at 2094 n. 15. Further, “it is clear that when two crimes arise from the same sequence of events, such is not sufficient to invoke the protection of I.C. § 18-301.”11 State v. Chapman, 112 Idaho 1011, 1013, 739 P.2d 310, 312 (1987).
In establishing the essential elements of the lewd conduct charge, the State introduced evidence that Lewis’ conduct consisted of anal-genital or oral-genital contact with an under sixteen-year-old victim and that Lewis or the victim had the intent to arouse, appeal to, or gratify their lust, passions, or sexual desires. This conduct does not constitute a violation of the HIV offense because the State did not produce evidence of Lewis’ conduct as a knowing carrier of HIV. Therefore, the lewd conduct prosecution was not barred by double jeopardy.12
II.
DID THE DISTRICT COURT ABUSE ITS
DISCRETION BY CONTINUING LEWIS’ TRIAL?
We hold that the district court did not abuse its discretion by continuing Lewis’ trial until December 29, 1989.
At the hearing on September 19, 1989, the district court suggested a trial date of December 5, to which Lewis’ counsel responded that, “I would certainly object to that late of a setting.” The parties and the court discussed alternate dates to set the trial, and ultimately agreed upon November 20, 1989, Lewis’ counsel stating, “That would be fine with me, Judge.” Lewis had filed several motions, including a motion to dismiss that was set for hearing on November 20, 1989, at 1:30. At the hearing on November 20, 1989, the court noted that Lewis’ motions, which had not yet been heard and decided, were filed late. Yet, Lewis’ counsel did “object[] to another change of date.” However, at the November 7, 1989 hearing, the parties and court agreed to begin jury selection on November 21,1989. The trial ultimately began on November 29, 1989.
Idaho Code § 19-3501 provides, in relevant part:
19-3501. When action may be dismissed.—The court, unless good cause to the contrary is shown, must order the prosecution or indictment to be dismissed, in the following cases:
2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within six (6) months *348from the date that the indictment or information is filed with the court.
Thus, the district court has discretion in determining whether “good cause” exists to justify a continuance in the trial. In re Rash, 64 Idaho 521, 526, 134 P.2d 420, 421-22 (1943). Whenever this Court is faced with an appeal from a discretionary determination, we ask three questions:
(1) whether the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether the trial court reached its decision by an exercise of reason.
Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991), citing State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
In this case, the record clearly shows that the district court correctly understood this issue to be one of discretion. Further, the record shows that the decision was made within the confines of its discretion and consistent with the applicable legal standards. First, the length of the continuance was about two and one-half months (from the original date of September 19, 1989, to the ultimate date of November 29, 1989) and the trial began within six months of the filing of the criminal information (June 15, 1989); second, the basis for the continuance (that “another trial was going on ... ”) was an adequate reason. State v. Talmage, 104 Idaho 249, 251, 658 P.2d 920, 922 (1983), citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Finally, the record shows that the district court reached its decision to continue the trial until November 29th by an exercise of reason.
III.
DID THE DISTRICT COURT VIOLATE A CONSTITUTIONAL RIGHT OR ABUSE ITS DISCRETION BY SELECTING A JURY FROM ANOTHER COUNTY?
We hold that the district court did not violate a constitutional right or abuse its discretion by selecting a jury from another county to sit in the lewd conduct case.
Idaho Code § 19-1816, which was first enacted in 1983, provides, in relevant part:
19-1816. Impaneling jury from another county.—(a) As an alternative to entering the order of removal provided in the preceding sections of this chapter, the court may instead enter an order directing that jurors be impaneled from the county to which venue would otherwise have been transferred, if it finds:
1. That a fair and impartial jury cannot be impaneled in the county where the criminal complaint, information or indictment is filed;
2. That it would be more economical to transport the jury than to transport the pending action; and
3. That justice will be served thereby.
Lewis contends that I.C. § 19-1816 does not empower a district court, on its own motion, to order selection of a jury from another county, and that the district court, in this case, did order the change in jury selection upon its own motion. For authority, Lewis points to I.C. §§ 19-1801 and 19-1808, which require motion by the defendant or the State, respectively, in order to effect a change of venue, and to I.C.R. 21, which provides for change of venue upon motion by the defendant or the State, and cites State v. Ash, 94 Idaho 542, 493 P.2d 701 (1972), wherein this Court ruled it improper for a district court to change venue pursuant to I.C. § 19-1801 on its own motion. We conclude that the State did move for the change of jury selection.
At the November 7, 1989 hearing, the district court identified the following issues to be discussed: (1) Lewis representing himself; (2) the publicity of the case and consideration of impaneling a jury from another county; and (3) consideration of a jury questionnaire. During the discussion of the jury selection issue, the State assert*349ed that “a change of venue is appropriate in terms of selecting a jury.” The State therefore requested the court to select a jury from another county.
IV.
DID THE DISTRICT COURT ERR IN DENYING LEWIS’ MOTION TO SUPPRESS EVIDENCE?
We hold that the district court did not err in admitting into evidence certain photographs and the document entitled “And Then There Was James,” both of which Lewis moved to suppress.
The search warrant issued by the magistrate authorized Detective Armstrong to search for the following:
[Cjertain evidence of a crime, to wit: pornographic VCR tape entitled “Boys On Film;” another pornographic VCR tape untitled containing adults of both sexes engaging in sexual acts; lists of names of past, present or potential victims; memorabilia of victims including photos, clothing, or other personal items; a diary listing names of victims and activities engaged in; camera and VCR recording equipment; correspondence with victims; indicia of ownership or occupance of Apt 14, 2701 Rosehill, Boise.
In support of his request for a search warrant, Detective Armstrong signed an affidavit which detailed his experience (seventeen years) as a law enforcement officer, his experience (thirteen years) and training in the investigation of crimes involving the sexual abuse of children, including identifying adults who sexually abuse children, and the events that had taken place in the Lewis investigation. In addition, Detective Armstrong stated:
Your affiant knows from his experience and training that pedophiles or adults who habitually seek sex with children usually keep records or diaries, listing their sexual partners’ names and the activities engaged in. That these offenders usually keep pictures of their sexual victims, or keep items belonging to their victims in order to recall the sex acts with those children. These offenders often write out plans involving future victims, and correspond via letters with victims.
The district court ruled that the affidavit was sufficient and that the material was properly seized.
When we review the issuance of a search warrant by a magistrate, our review is limited to ensuring that the magistrate had a substantial basis for concluding that probable cause existed, and we give great deference to the magistrate’s determination. State v. Lang, 105 Idaho 683, 684, 672 P.2d 561, 562 (1983). Looking to the language of the affidavit of Detective Armstrong, we hold that there was a substantial basis that probable cause existed for the issuance of the warrant. Furthermore, it is clear from our review of the record that the photographs and document fell within the scope of the warrant. The photographs, which depict, inter alia, scantily clad young men and homosexual acts, fall within the provision of the warrant providing for the search of “memorabilia of victims including photos, clothing, or other personal items.” (Emphasis added.) The document, which was written in the first person and regarded homosexual acts between the writer and a person who had the “unworried look of a fifteen-year-old,” was properly seized pursuant to the “memorabilia” and “diary” provisions of the warrant. Although it is clearly “expressive material,” “it is seizable with a valid warrant or under one of the exceptions to the warrant requirement just as any other piece of evidence of a crime would be.” State v. Claiborne, 120 Idaho 581, 585, 818 P.2d 285, 289 (1991).
The search was lawful. The search warrant authorized the officers to enter Lewis’ apartment and conduct a search for various items, including memorabilia and diaries.13
*350V.
DID THE DISTRICT COURT CORRECTLY APPLY RULES OF EVIDENCE IN ADMITTING CERTAIN EVIDENCE AT TRIAL?
We hold that the district court did not abuse its discretion by admitting certain evidence at trial.
On appeal, Lewis claims that the court should not have admitted the following evidence pursuant to I.R.E. 404(b): (1) testimony from Detective Larry Armstrong regarding Lewis’ statement that he had a sexual preference for young boys; (2) the videotape entitled “Boys On Film;” (3) a document entitled “And Then There Was James;” and (4) uncharged sexual misconduct with the alleged victim prior to the charged misconduct.
Rule 404(b) of the Idaho Rules of Evidence provides:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Relevant evidence is admissible, I.R.E. 402, but is to be weighed against its prejudicial impact, confusion of the issues, or misleading the jury, or by undue delay, waste of time, or cumulative effect, I.R.E. 403.
A.Detective Armstrong’s Testimony: During the State’s direct examination, Detective Armstrong testified:
I asked Mr. Lewis if he didn’t have a sexual preference for adolescent boys, and he responded, “Yeah, but that doesn’t mean I have to take advantage of the situation.”
At the time this statement was offered, Lewis objected on the basis of foundation, order of proof, and “opening the door” to prior convictions. The district court ruled that there was a proper foundation laid for the testimony, and that it was relevant and admissible. Lewis did not object to this testimony as violative of I.R.E. 404(b). Our review of the record satisfies us that the court correctly applied the rules of evidence in admitting this testimony.
B. The Video “Boys On Film:” The victim testified that he and Lewis watched a portion of this video on the day in question. During pre-trial motions, Lewis argued that the only issue was whether the victim really saw the film, and that the jury did not need to see it. Lewis did not object to it as being violative of I.R.E. 404(b). The court ruled that the film tended to corroborate the victim’s account of the crime, but it reserved ruling on whether the jury could view the film. The record does not reveal that the court ruled that the jury could view it. The court correctly applied the rules of evidence.
C. The Document “And Then There Was James:” Detective Armstrong testified that he perceived the document to be indicia of pedophilia. At the time it was offered, Lewis objected to Detective Armstrong's testimony based upon the document not then being admitted. The court then admitted it, ruling that a proper foundation had been laid. The court properly applied the rules of evidence.
D. Prior Uncharged Sexual Contact With The Victim: The victim testified regarding earlier uncharged sexual acts between himself and Lewis. During pretrial motions, Lewis objected to this testimony as violative of I.R.E. 404. The State contends that the testimony was properly admitted as proof of Lewis’ plan to groom the victim for sexual purposes.
We have recently analyzed evidence of prior uncharged sexual misconduct between a defendant and his victims in State v. Tolman, 121 Idaho 899, 828 P.2d 1304 (1992). In this regard, we focused upon whether the testimony revealed a common scheme or plan to sexually abuse an identifiable group and comparing that to the victim and the circumstances surrounding the victim’s allegations. Tolman, 121 Idaho at 905, 828 P.2d at 1310. In addition, we stated that testimony of prior sexual *351misconduct is admissible where the parties' credibility is at issue. Tolman, 121 Idaho at 904, 828 P.2d at 1309.
In this case, the victim testified that he and Lewis engaged in sexual acts a few weeks before the acts in question in this case. The testimony revealed that during two trips the two of them took to Idaho City, Idaho, and to Lowman, Idaho, they engaged in oral sex, and Lewis tried to ease the victim’s conscience by telling him that “everybody does it.” Lewis did not testify at trial. Essentially, then, his defense was that the alleged acts did not occur. “This type of posture at trial places the credibility of the victim squarely in issue for the jury to decide.” State v. Phillips, 123 Idaho 178, 181, 845 P.2d 1211, 1214 (1993). When the alleged conduct in this case is considered with the victim’s testimony regarding prior sexual misconduct with Lewis, “the jury was better able to compare patterns and methods, details and generalities, consistencies and discrepancies, and thereby ma[k]e a more meaningful and accurate assessment of the parties’ credibility.” Tolman, 121 Idaho at 905, 828 P.2d at 1310. Our review of the record satisfies us that the district court properly admitted this testimony in conformity with the rules of evidence.
VI.
DID THE DISTRICT COURT ABUSE ITS DISCRETION BY ALLOWING THE TESTIMONY OF AN EXPERT WITNESS?
We hold that the district court did not abuse its discretion by allowing the testimony of Dr. James Oyler, a psychologist who had treated the victim after the crime.
Lewis argues that Dr. Oyler invaded the jury’s province by offering his opinion that the victim was truthful in his claim that Lewis had sexually abused him. This argument is flawed for two reasons: (1) the record reveals that Dr. Oyler did not testify that it was his opinion that the victim was telling the truth; and (2) the dialogue where this statement is supposed to have been made was during Lewis’ cross-examination of Dr. Oyler, during which Lewis tried unsuccessfully to get Dr. Oyler to express his opinion on the victim’s truthfulness.
Idaho Rule of Evidence 702 guides the admission of expert testimony. It provides:
Rule 702. Testimony by experts.—If
scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Furthermore, “[i]t is within the discretion of the district court to determine whether a person is qualified to testify as an expert witness.” State v. Thomasson, 122 Idaho 172, 175, 832 P.2d 743, 746 (1992), citing State v. Rodgers, 119 Idaho 1047,1051, 812 P.2d 1208, 1212 (1991). In this case, Dr. Oyler testified that he was a psychologist licensed to practice in the State of Idaho. He was educated at Idaho State University and received a master’s degree in clinical psychology in San Francisco, California. He detailed his work experience in psychology, including his involvement in therapeutic intervention with minors who were victims of sexual abuse and people involved in homosexual issues. He further testified as to his therapeutic relationship with the victim, including his opinion that the victim fit the profile of a sexual abuse victim. Given Dr. Oyler’s qualifications and experience, as set forth in the foundation laid for his testimony, we cannot say that the district court abused its discretion by allowing him to testify regarding whether the victim fit the profile of a sexual abuse victim. If a proper foundation has been laid, it is proper for the expert to testify regarding whether a person has been sexually abused. State v. Hester, 114 Idaho 688, 692-93, 760 P.2d 27, 31-32 (1988).
VII.
DID THE DISTRICT COURT ABUSE ITS DISCRETION BY DENYING LEWIS’ MOTION FOR A NEW TRIAL?
We hold that the district court did not abuse its discretion by denying Lewis’ motion for a new trial.
*352The decision to grant a new trial rests in the sound discretion of the district court. State v. Lankford, 116 Idaho 860, 873, 781 P.2d 197, 1010 (1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990).
Lewis’ motion for a new trial was based upon Michael Carver’s and Joie Hein’s statements concerning the whereabouts of a videotape on the day the alleged conduct occurred between Lewis and the victim. The victim testified that he had watched certain portions of the videotape with Lewis on this day. Subsequent to the trial, Carver and Hein signed affidavits stating that Carver, who was Lewis’ roommate, had loaned the videotape in question to Hein, and Hein was still in possession of it on the day the victim testified that he had watched it with Lewis. The district court ruled this evidence to be newly discovered evidence, and concluded that the motion be denied pursuant to the standard set forth in State v. Drapeau, 97 Idaho 685, 551 P.2d 972 (1976).
The Drapeau standard, which applies to motions for new trials based upon newly discovered evidence, is: (1) the evidence was unknown to the defendant at the time of trial; (2) the evidence is material, not merely cumulative or impeaching; (3) it will probably produce an acquittal; and (4) failure to learn of it was due to no lack of diligence on the part of the defendant. Drapeau, 97 Idaho at 691, 551 P.2d at 978. The trial court ruled that the evidence was merely impeaching evidence, that it probably would not produce an acquittal, and that failure to learn of it was due to a lack of diligence on Lewis’ part. As to the diligence question, the court found that while Lewis was in jail prior to the trial, Carver visited Lewis forty-five times, and Hein visited Lewis ten times, and that both Carver and Hein were frequently at the courthouse proceedings relating to Lewis. The record shows that the court perceived this issue as a discretionary determination, that it correctly applied the proper analysis, and reached its decision through an exercise of reason.
VIII.
DID THE DISTRICT COURT ABUSE ITS DISCRETION BY SENTENCING LEWIS TO A FIXED TERM OF LIFE IN PRISON?
We hold that the district court did not abuse its discretion by sentencing Lewis to a fixed term of life in prison. In other words, the sentence imposed by the district court is reasonable.
Our standard in reviewing sentences is: Sentencing is a matter committed to the discretion of the trial judge, and the defendant has the burden of showing a clear abuse thereof on appeal. In exercising that discretion, reasonableness is a fundamental requirement.
State v. Broadhead, 120 Idaho 141, 144, 814 P.2d 401, 404 (1991), overruled on other grounds; State v. Brown, 121 Idaho 385, 394, 825 P.2d 482, 491 (1992), citing State v. Dillon, 100 Idaho 723, 724, 604 P.2d 737, 738 (1979).
Lewis’ burden is to “show that in light of the governing criteria, [his] sentence was excessive under any reasonable view of the facts.” Broadhead, 120 Idaho at 145, 814 P.2d at 405, quoting State v. Small, 107 Idaho 504, 505, 690 P.2d 1336, 1337 (1984). Thus, in order for this Court to conclude that Lewis’ fixed life sentence is unreasonable, we must be convinced that the sentence was excessive under any reasonable view of the facts, considering (1) the protection of society, (2) deterrence of Lewis and others, (3) the possibility of Lewis’ rehabilitation, and (4) punishment or retribution for Lewis. Broadhead, 120 Idaho at 146, 814 P.2d at 406.
The record reveals that Lewis has previously been convicted for a sexual' offense against a minor in 1979 in Nashville, Tennessee. Also, Lewis was HIV-positive at the time of the acts for which he was convicted in the present case. Further, there were several allegations of uncharged sexual misconduct between Lewis and minors during the sentencing proceedings. Finally, Lewis continues to deny that he committed this crime. Based upon the information before it, the district court *353stated that this was the “most aggravated case [it has] seen.” It considered the objectives of sentencing, and concluded that “the protection of society does warrant the penalty of life in prison without possibility of parole.” Based upon the record, we hold that the sentence imposed by the district court was not excessive under any reasonable view of the facts.
CONCLUSION
For the foregoing reasons, the judgment of conviction and the sentence imposed by the district court are affirmed.
JOHNSON and TROUT, JJ„ and REINHARDT, J., Pro Tern., concur.. Despite the court’s ruling regarding Lewis' HIV status, Lewis decided to tell the jury in this case of his HIV status. During the in camera pre-trial motions, Lewis' attorney informed the judge that Lewis had decided to tell the jury of his HIV status. The trial judge warned Lewis of doing so, explaining the possible consequences. and Lewis’ attorney responded that it was a matter of trial tactics. During the voir dire of prospective jurors, Lewis’ attorney said, "Mr. Lewis has tested positive for the HIV virus, the AIDS virus.” Finally, during the closing argument, Mr. Lewis, acting as his own attorney, stated, "I am infected with the HIV virus.”
. On the second day of jury trial, November 30, 1989, Lewis filed a motion to represent himself. Mr. Cahill had been representing Lewis. The court granted the motion.
. We apply the 1984 version of this statute instead of the 1992 version because the conduct giving rise to this prosecution took place prior to the 1992 amendment. This statute provides:
18-1508. Lewd conduct with minor or child under sixteen. — Any person who shall wilfully and lewdly commit any lewd or lascivious act or acts upon or with the body or any part or member thereof of a minor or child under the age of sixteen (16) years, including but not limited to, genital-genital contact, oral-genital contact, anal-genital contact, oral-anal contact, manual-anal contact, or manual-genital contact, whether between persons of the same or opposite sex, or who shall involve a minor or child in any act of bestiality or sado-masochistic abuse or lewd exhibition a? any of such acts are defined in section 18-1507, Idaho Code, when any of such acts are done with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such minor or child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of not more than life.
. This statute provides:
39-608. Transfer of body fluid which may contain the HTV virus — Punishment—Definitions — Defenses.—(1) Any person who exposes another in any manner with the intent to infect or, knowing that he or she is or has been afflicted with acquired immunodeficiency syndrome (AIDS), AIDS related complexes (ARC), or other manifestations of human immunodeficiency virus (HIV) infection, transfers or attempts to transfer any of his or her body fluid, body tissue or organs to another person is guilty of a felony and shall be punished by imprisonment in the state prison for a period not to exceed fifteen (15) years, by fine not in excess of five thousand dollars ($5,000), or by both such imprisonment and fine.
(2) Definitions. As used in this section:
(a) "Body fluid” means semen (irrespective of the presence of spermatozoa), blood, saliva, vaginal secretion, breast milk, and urine.
(b) “Transfer” means engaging in sexual activity by genital-genital contact, oral-genital contact, anal-genital contact; or permitting the use of a hypodermic syringe, needle, or similar device without sterilization; or giving, whether or not for value, blood, semen, body tissue, or organs to a person, blood bank, hospital, or other medical care facility for purposes of transfer to another person.
(3) Defenses:
(a) Consent. It is an affirmative defense that the sexual activity took place between consenting adults after full disclosure by the accused of the risk of such activity.
(b) Medical advice. It is an affirmative defense that the transfer of body fluid, body tissue, or organs occurred after advice from a licensed physician that the accused was noninfectious.
.U.S. Const, amend. V provides, in relevant part, that "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb____”
. The Grady Court further stated:
[I]f in the course of securing a conviction for one offense the State necessarily has proved the conduct comprising all of the elements of another offense not yet prosecuted (a “component offense”), the Double Jeopardy Clause would bar subsequent prosecution of the component offense.
Grady, 495 U.S. at 521 n. 11, 110 S.Ct. at 2093 n. 11.
. In Felix, the United States Supreme Court acknowledged that the Grady test was adopted *344from dicta in Vitale. Felix, — U.S. at-, 112 S.Ct. at 1384.
. The State did not contest the New York Court of Appeal's ruling that driving while intoxicated and vehicular manslaughter were barred under state law and Blockburger. Grady, 495 U.S. at 522 n. 13, 110 S.Ct. at 2094 n. 13.
. At the end of the Felix Court's opinion, the Court states:
It appears that while Grady eschewed a “same evidence” test and Garrett rejected a "single transaction" test, Garrett v. United States, 471 U.S. 773, 790, 105 S.Ct. 2407, 2417, 85 L.Ed.2d 764 (1985), the line between those tests and the “same conduct” language of Grady is not easy to discern.
Felix, — U.S. at-, 112 S.Ct. at 1385. The Grady decision, which was a 5-4 decision, was written by Justice Brennan. Writing for the Court, he recognized that “[t]he Court ... has ‘steadfastly refused to adopt the "single transaction" view of the Double Jeopardy Clause.”’ Grady, 495 U.S. at 523 n. 15, 110 S.Ct. at 2094 n. 15. quoting Garrett v. United States, 471 U.S. 773, 790, 105 S.Ct. 2407, 2417, 85 L.Ed.2d 764 (1985). In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Court was faced with a situation where a defendant was charged with robbing one of six men at a poker party, found not guilty, and subsequently charged with robbing another one of the six men. The Supreme Court reversed because in the first trial, where the defendant was found not guilty, the only "rationally conceivable issue" before the jury was the identity of the defendant as the robber. Ashe, 397 U.S. at 445, 90 S.Ct. at 1195. It is interesting that in Justice Brennan’s concurring opinion in Ashe he announced:
In my view, the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction. This “same transaction” test of "same offense" not only enforces the ancient prohibition against vexatious multiple prosecutions embodied in the Double Jeopardy Clause, but responds as well to the increasingly widespread recognition that the consolidation in one lawsuit of all issues arising out of a single transaction or occurrence best promotes justice, economy, and convenience.
Ashe, 397 U.S. at 453, 90 S.Ct. at 1199 (Brennan, J., concurring, joined by Douglas and Marshall, JJ.), (footnotes omitted).
. We do have the indictment and certain transcripts from the HIV case before us on appeal.
. This statute provides:
18-301. Acte punishable in different ways—Double jeopardy.—An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.
. We recognize that Lewis has argued that because of the sua sponte mistrial in the HIV case, the State must show a "manifest necessity” in order to prosecute the lewd conduct case. Sharp, 104 Idaho at 693, 662 P.2d at 1137, citing Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). In order for the district court to allow for a "retrial of [Lewis]," Le., a refiling of the HIV charge, the State would have had to prove a “manifest necessity” for the sua sponte mistrial. Sharp, 104 Idaho at 693, 662 P.2d at 1137. Based upon our decision on the double jeopardy claim, we need not address the “manifest necessity” issue.
. “Memorabilia” means "things remarkable and worthy of remembrance or record” and "a record of noteworthy things.” Webster's Third New International Dictionary 1408 (1986). "Diary” means "a register or record of events, transactions, or observations kept daily or at frequent intervals,” “a record of personal activities, reflections, or feelings,” and "a book intended *350or used for a diary." Webster’s Third New International Dictionary 625 (1986).