concurrence.
I concur with the outcome of the Court, affirming the district court, but I respectfully disagree with the ground upon which the Court relied in deciding the first issue. Without addressing whether the record is sufficient to support Pierce’s claim, the Court holds that the district court had subject-matter jurisdiction once the information was filed and that Pierce’s claim that the grand jury heard and ignored the charge before the information was filed, in violation of Article I, § 8 of the Idaho Constitution, was an affirmative defense that was waived by Pierce’s failure to raise the issue before the district court.
In rendering its decision, the Court, without fully analyzing the validity of the constitutional argument, has determined that Article I, § 8 of the Idaho Constitution is not jurisdictional and Pierce’s argument under it was waived when Pierce failed to raise the issue in the district court. Thus, the Court in effect interpreted Article I, § 8 to be an affirmative defense because if it is jurisdictional, it could not be waived by Pierce’s failure to assert it in the district court. Subject matter jurisdiction can be raised “at any time, including for the first time on appeal.” State v. Rogers, 140 Idaho 223, 227, 91 P.3d 1127, 1131 (2004).
It is my position that the Court put the cart before the horse in reaching the constitutional question, since there is an inadequate record demonstrating that the grand jury actually heard and ignored the charged offense. It is a fundamental principle of our jurisprudence that courts pass on deciding constitutional issues if the case can be decided without addressing the constitutional question. Rescue Army v. Mun. Court of City of L.A., 331 U.S. 549, 570 n. 34, 67 S.Ct. 1409, 1420 n. 34, 91 L.Ed. 1666, 1679 n. 34 (1947) (quoting Ala. State Fed’n of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 1389, 89 L.Ed. 1725, 1734 (1945)) (“It has long been the Court’s ‘considered practice not to decide abstract, hypothetical or contingent questions ... or to decide any constitutional question in advance of the necessity for its decision .... ’ ”); Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 136, 67 S.Ct. 231, 234, 91 L.Ed. 128, 133 (1946) (“If two questions are raised, one of non-constitutional and the other of constitutional nature, and a decision of the non-constitutional question would make unnecessary a decision of the constitutional question, the former will be decided.”); Thompson v. Hagan, 96 Idaho 19, 24, 523 P.2d 1365, 1370 (1974) (stating that “[i]t is an accepted rule of statutory construction that constitutional issues should be avoided____”).
The appellant has the burden of providing a record upon which this Court can assess the merit of the issues on appeal. State v. Mowrey, 128 Idaho 804, 805, 919 P.2d 333, 334 (1996). Pierce admits he is unable to provide documentation conclusively showing that the grand jury heard and ignored the charge. Pierce bases his argument that the grand jury was convened upon a statement of the prosecutor at the sentencing hearing. When introducing two photos from the presentence investigation, the prosecutor stated: *7“These were shown to the grand jury as well.” Pierce argues that the prosecutor’s statement shows that a grand jury was convened and contends that the absence of the grand jury record demonstrates that the grand jury ignored the charge. Pierce asserts that I.C.R. 6.6(c) provides that grand jury records shall only be returned to the district court if an indictment is obtained. Pierce also relies upon the district court clerk’s response to an order that three grand jury proceedings may have taken place during the time frame in question, but the records were not received by the clerk’s office. Pierce contends that therefore the prosecutor’s statement, combined with the absence of the grand jury record, demonstrates that the grand jury was convened and ignored the charge.
Nonetheless, it is my contention that there is an insufficient record to address the merits of the constitutional question. Even if Pierce can demonstrate that the grand jury was convened, there is no proof that the same crime for which Pierce was charged in the information was presented to the grand jury. Pierce was charged by information pursuant to I.C. § 18-1506 with the sexual abuse of a child under sixteen years of age. A number of charges for the same act could have been presented to the grand jury. For example, a claim of lewd conduct with a minor child under I.C. § 18-15086 may have been presented to the grand jury. Article I, § 8 would not apply unless the grand jury was convened and ignored the “same charge” for which the defendant was later charged by information. There is no record on that point.
Because Pierce has not produced an adequate record, the appeal should be dismissed on that basis and there is no need to rule upon the constitutional question. By deciding the constitutional issue that Article I, § 8 is not jurisdictional, the Court has ignored the longstanding rule that courts will not rule on constitutional issues when the case can be decided on non-constitutional grounds. In determining that the appeal can be dismissed on the basis that appellant failed to produce an adequate record, I am not commenting either way on whether Article I, § 8 limits subject-matter jurisdiction or is an affirmative defense. I will maintain a neutral position until the question must be addressed in a prospective case.
Any person who shall commit any lewd or lascivious act or acts upon or with the body or any part or member thereof of a minor 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 such minor child in any act of bestiality or sado-masochism as 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, such minor child, or third party, shall be guilty of a felony and shall be imprisoned in the state prison for a term of not more than life.
. Idaho Code § 18-1508 provides: