State v. Maidwell

Chief Justice TROUT,

Dissenting:

Because I believe there is no adequate justification for overruling the relatively recent case of State v. Barnes, 124 Idaho 379, 859 P.2d 1387 (1993), I respectfully dissent.

In Barnes, this Court held that grand theft by possession of stolen property in violation of Idaho Code § 18-2403(4) was not a “continuing offense” extending until possession ceased; rather, theft was committed at the time the defendant came into possession of the stolen property. The Court noted the well-established rule that the clearly expressed intent of the legislature must be given effect, leaving no occasion for construction where the language of a statute is plain and unambiguous. Barnes at 380, 859 P.2d at 1388 (citing Sherwood v. Carter, 119 Idaho 246, 254, 805 P.2d 452, 460 (1991)). Applying this rule, the Court concluded the statute of limitations begins to run when the crime is committed, and the theft was committed at the time Barnes came into possession of the truck with the knowledge it was stolen and with the intent to deprive the rightful owner thereof. Id.

I believe that the holding in Barnes cannot be distinguished from this case because Barnes specifically addresses the core issue in this case; whether the crime of possession is a continuing offense. While Barnes did discuss the specific intent required in order to commit the crime, which made it possible to identify exactly when the item had been *428stolen, that was not dispositive. The Court opined that the crime was committed and the statute of limitations began to run when all of the elements necessary to prove the crime had occurred.

I find no reasoned basis for reaching a different conclusion in the instant case. While different statutory provisions are involved, the crime nevertheless consists of possessing wrongfully taken property. Whether that property consists of a stolen truck or an antlerless elk taken without a permit is a distinction without a difference. For the purposes of determining the running of the statute of limitations, the issue is when all of the necessary elements of the crime have occurred. Here, it was when Maidwell wrongfully possessed the antlers of an animal taken without a lawful permit. That occurred no later than October 26, 1996. The prosecution commenced the charges on December 17,1998, beyond the two-year statute of limitations.

It is also notable that the Barnes decision was issued in 1993, and yet despite several intervening legislative sessions, the legislature has not enacted any statutes which would denominate crimes involving possession of property as continuing offenses. Had the legislature disagreed with this Court’s interpretation of “the plain language” of the statute, there have been opportunities to correct that error.

The following quote from Barnes is likewise applicable here:

We further note that another rule of statutory interpretation supports our conclusion. The rule of lenity states that criminal statutes must be strictly construed in favor of defendants. State v. Sivak, 119 Idaho 320, 325, 806 P.2d 413, 418 (1990).

124 Idaho at 380, 859 P.2d at 1388.

For the reasons set forth above, I would hold Barnes controls and that the crime of illegal possession of wildlife or wildlife parts is committed when all elements of the crime have occurred.

Justice KIDWELL concurs.