concurring in Parts II, V(B) and (C), and VIII, dissenting from the remainder.
“Drunk driving is a national tragedy. Prosecutors’ offices are often overworked and may not always have the time to monitor seemingly minor cases as they wind through the judicial system. But these facts cannot excuse the need for scrupulous adherence to our constitutional principles.” Grady v. Corbin, 495 U.S. 508, 524, 110 S.Ct. 2084, 2095, 109 L.Ed.2d 548 (1990). Thus spoke the United States Supreme Court in Grady, a case with which the majority deals extensively. Child molestation is in some ways more of a national tragedy than drunk driving. Also, let it be noted that Lewis is hardly a sympathetic defendant. In forcing his will on someone too young to be able to consent to sex, he also tried to engage in a course of conduct that, if successful, could potentially have exposed his young victim to a deadly virus. It is crucial to recall, however, that this Court must not decide its criminal cases based upon the character of the accused, as difficult as that may sometimes be to disregard. Instead, we must decide our eases based on the law. Because the majority, for whatever reason, disregards aspects of the proceedings against Lewis that are blatantly contrary to the relevant constitutional, statutory and case law, I cannot concur in much of the majority opinion.
I. The Lewd and Lascivious Prosecution Against Lewis Is Barred by the Double Jeopardy Clause.
The majority’s discussion of the law of double jeopardy is both cogent and complete, but its analysis of the facts sub judice and its application of the law to those facts are neither. The majority opinion attempts to apply the relevant precedent of Grady to Lewis’s case in a three-sentence paragraph, to-wit:
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.
State v. Lewis, at 405 (emphasis omitted). The Court summarily concludes that double jeopardy does not bar the lewd and lascivious prosecution since Lewis’s “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.” Id. (emphasis added). This conclusion is not only wholly unsupported by meaningful analysis, but it also blatantly disregards the same opinion’s preceding legal analysis. The majority thereby engages in an alchemic attempt to convert evidence of an element of a crime into conduct.
By analyzing the evidence involved rather than the conduct, the majority opinion defies the dictates of Grady. As the majority explains, Grady requires analysis of the defendant’s conduct to determine whether an accused is being punished twice for the same offense, holding that “the 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 *354defendant has already been prosecuted.” 495 U.S. at 510,110 S.Ct. at 2087 (emphasis added). Grady later specifically asserts that “[t]his is not an ‘actual evidence’ or ‘same evidence’ test. The critical inquiry is what conduct the State mil prove, not the evidence the State will use to prove that conduct.” 495 U.S. at 521, 110 S.Ct. at 2093 (emphasis added).
To demonstrate the majority’s error, it is necessary to delineate precisely what conduct is at issue in the two prosecutions. It is first noted that the indictment which laid the HIV charge states,
Lewis, on or about February, 1989, ... 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 anally penetrate [the victim] with his penis, with the intent to gratify the sexual desires of the defendant, by passing seman [sic] onto or into [the victim’s] body.
Thus, the first prosecution alleged that Lewis attempted anal-genital contact.14 The subsequent prosecution, initiated by complaint and information, charged Lewis with the crime of lewd and lascivious conduct in that “Lewis, on or about February, 1989, ... did, ... commit a lewd and lascivious act upon the body of a minor, ... to-wit: of the age of 15 years, by placing his mouth on [the victimjs penis and by attempting to anally penetrate [the victim] with his penis, with the intent to gratify the sexual desire of the defendant.”15
The question then becomes what constitutes “conduct.” Although the majority opinion does not state as much, its careless reference to conduct would seem to embrace not only the oral-genital contact and the attempted anal-genital contact, but also the victim’s age, Lewis’s and/or the victim’s intent, and Lewis’s HIV-positive status. How these latter facts fit into the definition of “conduct” is not readily understood. Webster defines “conduct” as, inter alia, a noun meaning “1. The way a person acts: BEHAVIOR.” Webster’s II New Riverside University Dictionary 295-296 (1984). Black’s Law Dictionary similarly defines the word: “Personal behavior; deportment; mode of action; any positive or negative act.” Black’s Law Dictionary 268 (5th ed. 1979). Hence, “conduct” means a course of physical action. Assuming that the members of the United States Supreme Court, all of whom signed on to the relevant portion of Felix, know the dictionary meaning of the word “conduct” (and that is a safe assumption), “conduct” does not mean the defendant’s status nor state of mind, nor the victim’s age.
The majority’s implicit analysis of what constitutes Lewis’s conduct also fails because its presumed definition is no more than a re-application of the Blockburger *355test, as Lewis pointed out. Whether Lewis was a knowing carrier of HIV or whether Lewis possessed the requisite intent to gratify his desires on a fifteen year old are elements of the two crimes, not “conduct.” It is the Blockburger test, not the Grady test, which looks to the elements of the two charged crimes. No quarrel can be made with the majority opinion’s statement that the Lewis prosecutions fail to satisfy the Blockburger inquiry and thus that the subsequent prosecution is not barred under that theory. But the Supreme Court intended the Grady inquiry as separate and additional to the Blockburger inquiry. In including these elements in its Grady inquiry under the guise of “conduct,” the majority does little justice to United States Supreme Court precedent.
The majority appears to have accepted the State’s contention, advanced in oral argument, that a passage in Grady indicates that Grady’s rationale would only bar the second prosecution if the prosecution alleged that Lewis was HIV-infected. The theory by which the State reaches this conclusion is seductively clever but ultimately unpersuasive. The Grady dicta which the State points to discusses what sort of prosecution would have been acceptable in regard to Corbin, the defendant in Grady:
By its own pleadings, the State has admitted that it will prove the entirety of the conduct for which Corbin was convicted—driving while intoxicated and failing to keep right of the median—to establish essential elements of the homicide and assault offenses. Therefore, the Double Jeopardy Clause bars this successive prosecution____ This holding would not bar a subsequent prosecution on the homicide and assault charges if the bill of particulars revealed that the State would not rely on proving conduct for which Corbin had already been convicted (i.e., if the State relied solely on Corbin’s driving too fast in heavy rain to establish recklessness or negligence).
495 U.S. at 522-23, 110 S.Ct. at 2094 (emphasis added). The State makes an Olympian leap in logic from the dicta contained in the above paragraph to its argument that what conduct is involved is not the central inquiry. The State does so by contending that in Grady, driving constituted conduct and intoxication a condition, yet the Grady court expressly would permit Corbin to be subsequently prosecuted for the same conduct, driving (i.e., driving too fast in heavy rain). Thus, so the argument would go, the Supreme Court did not really mean that the same conduct may not be prosecuted twice.16 Here, the State argues similarly that attempted anal-genital contact is conduct and HIV-positive is a condition, so the Double Jeopardy Clause would permit a subsequent lewd and lascivious prosecution of Lewis by alleging attempting anal-genital contact, the conduct, without proof of HIV infection, the condition.
As shown above, however, it is impossible to escape the Grady court’s express holding that the proper inquiry involves examining conduct, not evidence adduced, as well as myriad other references to “conduct,” even in the paragraph cited by the State. The Grady court obviously considered that driving while intoxicated is a separate course of conduct from driving too fast, the driving amounting to a “transaction” 17 consisting of various separate courses of conduct. This definition is as thin as the definition of “conduct” should *356be spread.18 Thus, the state would need to argue that attempting anal-genital contact while HIV-positive is a separate course of conduct from the same instance of attempted anal-genital contact without proof of such status, by the same person at the same time.
Such an argument defies common sense. Corbin engaged in at least three courses of conduct as alleged in the first prosecution: he drove while intoxicated, failed to keep to the right of median, and drove too fast. These courses of conduct were all separate courses of conduct, although, all three occurred roughly contemporaneously. For instance, Corbin could have driven too fast without driving while intoxicated, or vice versa. Hence, as the Supreme Court suggested, it was possible to have a subsequent prosecution on the homicide and assault charges using only the conduct of driving too fast as proof of intent in the assault and homicide prosecutions.
The distinction becomes obvious when applying the same analysis to the instant case. The State alleged in both the HIV case and the lewd and lascivious case that Lewis had attempted to engage in anal-genital contact with the victim. The only conduct actually constituting the element of attempted transfer of body fluid in the HIV case was attempted anal-genital contact Such a transfer would be impossible without the conduct comprising attempted anal-genital contact—the same conduct that constituted an essential element in the subsequent lewd and lascivious case—unlike the situation in Grady, where Corbin’s speeding occurred independently of homicide and assault. If the State had alleged in the HIV case that Lewis attempted anal-genital contact but had alleged in the lewd and lascivious case that he engaged in only oral-genital contact, it would be possible for Lewis to commit the attempted transfer without engaging in the conduct charged in the lewd and lascivious case, and vice versa. In this hypothetical situation, the oral-genital contact and attempted anal-genital contact would have occurred within the same transaction but would not constitute the same conduct. Thus, this hypothetical second prosecution would have been permitted by the Double Jeopardy Clause, since the Supreme Court has expressly rejected the “same transaction test.” Grady, 495 U.S. at 523 n. 15, 110 S.Ct. at 2094 n. 15. The above analysis is tortuous, but, again, common sense tells us that one instance of attempted anal-genital contact is not two courses of conduct. And if the Double Jeopardy Clause bars anything, it bars prosecuting the accused twice for the exact same course of conduct.
The prosecution’s allegations of Lewis’s conduct—the only relevant inquiry under Grady and its progeny—amounted to the same instance of attempted anal-genital intercourse in both prosecutions. And in using the entirety of the conduct for which Lewis had previously been prosecuted, i.e., attempted anal-genital contact, the government sought to establish an essential element of the lewd and lascivious offense, i.e., a lewd or lascivious act.
The alleged oral-genital contact raises another question.19 As explained above, Grady would permit subsequent prosecution of Lewis for alleged oral-genital contact because the oral-genital contact was conduct separate from the attempted anal-genital contact and because oral-genital contact was not the conduct for which Lewis was prosecuted in the HIV case. The fact remains, however, that the State in the lewd and lascivious case inexplicably alleged both oral-genital contact and attempted anal-genital contact. Because it is impossible to determine whether the jury convicted Lewis on the lewd and lascivious charge based on the anal-genital contact, *357the oral-genital, or both and because the subsequent allegation of attempted anal-genital contact violated a fundamental constitutional right, this error cannot be considered harmless.
Concluding that Lewis was twice prosecuted for the same conduct does not end all inquiry of whether the Double Jeopardy Clause bars the subsequent prosecution. Reprosecution after a mistrial is permissible if the defendant requested or acquiesced in the mistrial. U.S. v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). Here, the trial judge in the HIV case sua sponte declared a mistrial, to which Lewis objected. Reprosecution after mistrial is also permissible if there was a “manifest necessity” for the mistrial. See, e.g., United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). A review of the record reveals not a scintilla of necessity in the trial judge’s declaration of mistrial. The trial judge held proceedings in which he declared,
Now, Mr. Lewis, it has come to my attention via the media and statements that this case is beginning to have a great deal of press coverage, and as I understand from sources that I’ve received that apparently there was even a TV special yesterday in regard to this matter, though I didn’t see it____ And I note, for the record, that I accepted a letter regarding some personal problems or life of myself. And while I don’t know of anything on my own life that has any effect on this, I can’t see how I can handle this case anymore with the publicity and the things that are going on.
Transcript of Proceedings of October 30, 1989, p. 1. If excess publicity were a problem, the trial judge would have possessed various other remedies to deal with it. Certainly, the sole act of substituting a new judge would not solve the perceived problem of excess publicity. Too, the judge’s cryptic reference to a letter is not explained. Two remedies would then appear to be appropriate: either this Court should vacate the judgment of conviction or it should remand back to the trial court in the lewd and lascivious case to determine by evidentiary hearing whether manifest necessity for the new trial existed in the HIV case.
II. The Prosecution Did Not Move to Impanel a Jury from Another County.
In its discussion of this issue, the majority apparently accepts Lewis’s argument that a trial court may not sua sponte order selection of a jury from another county. This position is correct, in light of I.C. §§ 19-1816, 19-1801, and 19-1808; I.C.R. 21; and State v. Ash, 94 Idaho 542, 493 P.2d 701 (1972). The Court then proceeds to conclude that the State did move for the change of jury selection. This conclusion is based solely on the fact that the prosecution stated that “a change of venue is appropriate in terms of selecting a jury” after the district court repeatedly had mentioned that it was considering resorting to an out-of-county jury selection. The first mention of out-of-eounty jury selection appears in the following exchange at a status conference:
Mr. Cahill [Lewis’s counsel at trial]: ... I realize that the court had us here for some reason that I am not really sure has to do with the jury selection, and perhaps I should just talk to him [Lewis]. [] If I could have some time to talk to him to see what his position is going to be— ... is the court contemplating jury selection outside of this jurisdiction? The Court: I am thinking about it, yes. What I would like to do is let you know what topics we are going to discuss today, and I will give you a time to discuss the matter with your client____
Tr., Vol. I, p. 2 (emphasis added). The trial court continues by analyzing why it believes such an action would be necessary, concluding
My feeling is at this point, ... that the wisest course would be to leave the county, go to another district, choose a jury there, keep the jury sequestered for the trial, and try it in Ada County, but choose the jury elsewhere. That would be my feeling that that is probably the best course.
*358Id., p. 5 (emphasis added). It then granted a ten-minute recess to allow Mr. Cahill to discuss the jury selection matter, as well as the other matters the court brought up for discussion, with his client. After the recess, the trial court returned to the topic:
The Court: All right, now, about the other issues, do you have any input on the issue of whether or not we should choose an out-of-county jury in this case?”
Mr. Cahill: Your Honor, after discussing the matter, we certainly appreciate the court’s concern. However, it is our desire that jury selection take place in Ada County. We do not—we are not moving for a change in venue, in other words. The Court: The State?
Mr. Rosenthal [the prosecutor]: Your Honor, I think in light of the publicity that has taken place ... I think a change of venue is appropriate in terms of selecting a jury____
Tr., Vol. I, pp. 7-8 (emphasis added).
In light of the above, the majority’s concept of “motion” here is nothing less than bizarre. It is clear that the trial court brought up the issue of out-of-county jury selection sua sponte and then merely asked whether the parties had “input.” In the earlier exchange, Mr. Cahill noted that the trial court had called the parties there to discuss matters, including, perhaps, jury selection. The prosecution merely acquiesced in the trial court’s suggestion after the trial court had engaged in substantial analysis on its own, without the parties’ input.
Clearly, the prosecutor did not provide any sort of notice to Lewis that he was “moving” for a change in venue or for a change in county for the purposes of jury selection. As State v. Ash, 94 Idaho 542, 493 P.2d 701, explained, in holding that a trial court may not change venue on its own motion, “There is a good reason for this rule: under it, both parties have an opportunity to present their views on the necessity for a change of venue to the court before its decision on the issue.” Ash, 94 Idaho at 545, 493 P.2d at 704 (emphasis added). This is no less true than for a motion for selecting an out-of-county jury. A ten-minute recess culminating in an exchange between the parties and the court comprising less than a page of transcript demonstrates that the court provided neither party with an opportunity to present their views fully and effectively.
Furthermore, Idaho Criminal Rules require that a pre-trial motion be in writing. Rule 21 requires that “[t]he court upon motion of either party shall transfer the proceeding to another county if the court is satisfied that a fair and impartial trial cannot be had in the county where the case is pending.” I.C.R. 21(a) (emphasis added). Rule 12, which governs motions before trial, states in relevant part that “[e]very pleading, motion, notice, or judgment or order of the court shall be typed with black ribbon or produced by a computer or word processor type printer____” I.C.R. 12(c). It is evident, then, that the State should have put its “motion” in writing.20
Another good reason to require a motion and thus notice is that a change in venue (or a change in jury pool) implicates a substantial and express constitutional right. The Sixth Amendment of the United States Constitution commands, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law----” Such a change in venue or jury pool should not occur lightly, on the whim of the district court, but should be fully argued by both parties, with time for them to consult relevant law.
In view of the above, and in view of the fact that I.C. § 19-1816 requires a previous motion for transfer of venue before a trial court may impanel a jury from another county, the State’s mere acquiescence in *359the trial judge’s motion to impanel an out-of-county jury is not a “motion.”21
III. “And Then There Was James” Exceeded the Scope of the Search Warrant and Thus Should Have Been Suppressed.
Putting aside whether the majority correctly concludes that probable cause existed for issuance of the search warrant, it is not correct in asserting that the document entitled “And Then There Was James” (“James”) fell within the scope of the warrant. Hence, the trial court erred in denying Lewis’s motion to suppress “James.”
The search warrant provided that the police could search for “memorabilia of victims ...; a diary listing names of victims and activities engaged in.” Again, the majority distorts commonly understood, unambiguous words in order to affirm Lewis’s conviction. “James” is a short narrative, perhaps fiction, told as a flashback in the first-person. As such, it cannot qualify as a “diary” as defined by the majority—“a register or record ... kept daily or at frequent intervals” because “James” appears on its face to be only one day’s worth of writing. And if the narrative is fiction, which it may well be, it cannot qualify as a “record” or therefore “memorabilia.”22 Moreover, the majority’s analysis implodes when one actually reads the warrant; “James” does not qualify as either a diary or memorabilia as defined by the search warrant. Both of these warrant provisions describe items containing descriptions of multiple victims. “James,” however, is a narrative, perhaps fictional, about sexual activity which the narrator conducted with a nineteen year old male who is described as having “the soft, unworried look of a fifteen-year-old.” Even if “James” describes a non-fictional incident, which is by no means clear, the recipient of adult, consensual sex can hardly be called a “victim.” Moreover, “James” only concerns sexual activity with one person.
The fact that “James” is not even remotely described in the search warrant is particularly troubling because, as the majority opinion notes, “James” is clearly expressive material. That opinion, however, goes on to cite State v. Claiborne, 120 Idaho 581, 818 P.2d 285 (1991), for the proposition that expressive material “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.” Claiborne, 120 Idaho at 585, 818 P.2d at 289. This quotation is disingenuous when Claiborne is read in its entirety. In Claiborne, this Court held that a book plainly and on its face constituting “sexually exploitative material,” as defined and barred by a criminal statute governing child pornography, could be seized because it was “at the same time evidence of the crime of possession of sexually exploitative material,” not because it was evidence of the underlying lewd and lascivious crime for which Claiborne was prosecuted. Id. A narrative describing sex between two adults does not on its face violate any criminal statutes, since it is not clearly obscene unless and until so judged after a trial. Thus, “James” falls outside the rationale of Claiborne but within the rationale of Maryland v. Macon, 472 U.S. 463, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985): “The First Amendment imposes special constraints on searches for and seizures of presumptively protected material, and requires that the Fourth Amendment be applied with ‘scrupulous exactitude’ in such circumstances.” 472 U.S. at 468, 105 S.Ct. at 2781 (quoted in Claiborne, 120 Idaho at 583, 818 P.2d at 287). As explained above, *360a better view is that “James” does not at all fall within the scope of the warrant. But even if one accepts the majority’s arguments as to “James” falling within “memorabilia” or “diary,” the narrative does so with a remarkable amount of ambiguity.
The fact that “James” is clearly expressive material which was not described with particularity in the search warrant should mandate a holding that the district court erred in denying Lewis’s motion to suppress and in thereafter admitting “James” as evidence.
IV. Detective Armstrong’s Testimony and Prior Uncharged Sexual Contact with Victim Constituted Prejudicial Character Evidence and Thus Should Have Been Excluded.
The majority contends that Lewis waived the issue of whether Detective Armstrong’s testimony violated I.R.E. 404(b) because Lewis failed to cite the specific rule in his objection. Nonetheless, the majority admits that Lewis’s counsel did object to the proffered testimony on the grounds that the statement “open[ed] the door” to prior convictions, i.e., bad acts. Rule 404(b) is entitled “Other crimes, wrongs or acts.” The majority’s hyper-technicality is patent and unfair. Keeping in mind the intense and quick-moving nature of a trial, it is unrealistic to expect counsel to object to a piece of evidence in precisely the same manner that he or she would later raise the issue on appeal. As a matter of law, it is plain that Lewis adequately preserved the issue of Armstrong’s testimony for appeal.23
Rule 404(b) bars the admission of evidence of “other crimes, wrongs, or acts” for the purpose of “prov[ing] the character of a person in order to show that he acted in conformity therewith.” I.R.E. 404(b). It is difficult to imagine a statement which contravenes this rule greater. The prosecution offered Detective Armstrong’s testimony to suggest that Lewis possessed an attraction to “adolescent boys” and thus possessed a propensity to engage in sexual behavior with them. The State does not assert any Rule 404(b) exception (for instance, that the testimony was offered for other purposes, such as proof of motive or intent), presumably because there is no exception within which the testimony falls.
As for the evidence of prior uncharged sexual contact with the victim, this justice stands by his dissent in State v. Phillips, 123 Idaho 178, 845 P.2d 1211 (1993). State v. Tolman, 121 Idaho 899, 828 P.2d 1304 (1992), and its progeny were wrongly decided in that they expand the “common scheme or plan” exception in I.R.E. 404(b) to engulf and render meaningless the general rule therein: that evidence of other acts is not admissible to attempt to show a defendant’s person’s propensity to engage in such acts. What the majority refers to as a “plan” is nothing more than evidence offered to prove the character of Lewis as a pedophile, thus intimating to the jury that he acted in conformity with that character. Also noteworthy is that the majority’s rationale that the jury should hear the evidence of prior, uncharged acts because the jury is “better able to compare patterns and methods,” etc., ignores that the jury is also better able to conclude that since Lewis engaged in earlier acts, he 1) committed in the charged act or 2) deserved to be punished for the charged acts, even if the latter were not proven beyond a reasonable doubt. The raison d’etre of the rules of evidence is that not every piece of evidence should go to the jury, and for good reason.
V. Dr. Oyler’s Testimony that the Victim Fit the Profile of a Sexual Abuse Victim and that the Victim Had Been Abused Should Not Have Been Allowed.
For the most part, the majority opinion correctly disposes of Lewis’s claim that Oy*361ler’s testimony was improper. The troubling aspect of Oyler’s testimony involves the following exchange between the prosecutor and Oyler:
[Prosecutor]: Doctor, based on your training, your education, and your experience, as well as on your evaluation, therapeutic intervention with [the victim], can you state with a reasonable psychological probability whether [the victim] has been sexually abused? [Oyler]: He clearly fits the profile, and based on that, I would say yes.
Tr., Vol. IV, p. 694.
First of all, although Lewis did not object as to foundation, it is notable that Oyler never testified as to what this “profile” might be or what character traits it might consist of. If Oyler had testified as to psychological or behavioral traits of which a profile of a sexually abused youth might consist—laying the appropriate scientific foundation, of course—and then noted which of these the victim exhibited, such testimony would be permissible, provided that it is beyond the knowledge of the average juror and that it is scientifically sound. Second, notwithstanding this Court’s decision in State v. Hester, 114 Idaho 688, 760 P.2d 27 (1988), it is an inappropriate invasion of the jurors’ fact-finding function for an expert witness to proceed the extra step and to conclude that a victim has actually been abused. Only the jury is entitled to arrive at that conclusion if it so chooses based upon the testimony it has heard.
Conclusion
Because of all of the constitutional, statutory, and evidentiary errors noted above, this Court should reverse and vacate the conviction. A neutral system of justice demands no less.
. The reference to "passing” semen "onto or into [the victimfs body” is somewhat ambiguous, in light of the evidence adduced that Lewis ejaculated onto the victim’s body but did not actually engage in actual anal-genital contact. Nonetheless, the indictment must refer to the attempted anal-genital contact only. Idaho Code § 39-608, the statute under which Lewis was originally prosecuted, specifically defines "transfer,” an essential element of the crime (absent a specific intent to infect), as “engaging in sexual activity by genital-genital contact, oral-genital contact, [or] anal-genital contact____” Nowhere in this definition can one find semen-skin contact, nor would one expect to, since the HIV virus has rarely, if ever, been shown to be transferred by such means.
. As far as can be ascertained from the record before the court, the jury was instructed that Lewis could be convicted in the lewd and lascivious trial for both oral-genital and attempted anal-genital contact. The charging documents, statements of the prosecution’s theory of proof, should be binding until challenged by the State. Cf. Grady, 495 U.S. at 522-23, 110 S.Ct. at 2094. Here, the State never claims that Lewis was convicted only for the oral-genital contact, not for the attempted anal-genital contact. In fact, the State candidly admits, "The attempted anal penetration that formed part of the basis for this charge [the attempted transfer of body fluids which may contain the HIV virus] was the same act as the attempted anal penetration charged in the lewd conduct case.” Respondent’s Brief, p. 5. The State’s reference to "part of the basis of this charge” is unclear; in light of the discussion in the above footnote, the "rest of the basis” for the HIV charge must be the other elements of the offense, including the fact that Lewis was HIV positive.
. At least one problem with the State’s analysis is that Grady’s holding involves a vertical comparison—that is, between the conduct for which the defendant is first prosecuted and the conduct for which he or she is subsequently prosecuted. Grady does not purport to concern itself with a horizontal comparison—that is, between conduct that might have been charged in the first prosecution and conduct actually charged in that same prosecution.
. The term "transaction" is used because it falls within the United States Supreme Court’s terminology, not because it is necessarily the best choice of word. (The same might be said of "conduct," and in fact the Court in Felix acknowledged that ”[i]t 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 is not easy to discern.”)
. This Court should not give credence to the perilous sophistry needed to conclude that being HIV positive constitutes conduct. People are generally known to drink a lot for the purpose of getting drunk; on the other hand, people generally do not receive blood transfusions or engage in unprotected intercourse for the purpose of getting the AIDS virus. Moreover, intoxication is a temporary, controllable state and much more akin to conduct rather than HIV-positive status, which, as of now, is a permanent and incurable condition.
. Oddly enough, this issue was not raised by the State.
. Even if we were inclined to overlook the plain language of the Idaho Criminal Rules, the State still should have substantially complied with such regulations—that is, it should have provided notice to Lewis.
. Because of my suggested disposition of the procedural aspect of the jury charge, I do not address Lewis’s substantive constitutional argument. Unfortunately, neither does the majority, except for its introductory sentence: “We hold that the district court did not violate a constitutional right or abuse its discretion by selecting a jury from another county____” Because of its disposition of the procedural issue, the majority should discuss beyond a one-sentence conclusion Lewis’s contention that even if the appropriate procedure was followed, the jury selection violated his substantive Sixth Amendment rights.
. Since “James” implicates the First Amendment as explained below, this court should err on the side of caution and presume that "James" is fiction and therefore not memorabilia.
. I agree with the majority that Lewis did not preserve the admissibility of "James” beyond the search warrant issue dealt with in the motion to suppress hearing. This is unfortunate, because the probity and relevancy of the document was minimal at best, while the potential prejudicial effect was enormous. Thus, had the issue been preserved properly, the inescapable conclusion would be that the admission of "James” violated I.R.E. 403.