State v. Johnson

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 33312
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) Boise, May 2008 Term
)
v. ) 2008 Opinion No. 89
)
SARAH MARIE JOHNSON, ) Filed: June 26, 2008
)
Defendant-Appellant. ) Stephen W. Kenyon, Clerk
)
)

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine
County. Hon. R. Barry Wood, District Judge.

District court conviction of first-degree murder, affirmed.

Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Jason
Curtis Pintler, Deputy State Appellate Public Defender argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Kenneth K.
Jorgensen, Deputy Attorney General argued.
__________________________________

BURDICK, Justice
Appellant Sarah Marie Johnson was convicted of two counts of first-degree murder.
Johnson appeals her conviction. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 2, 2003, Alan and Diane Johnson (the Johnsons) were shot and died in
their home. Subsequently, the Johnsons’ sixteen year old daughter, Sarah Johnson (Johnson),
was charged with two counts of first-degree murder. A jury found Johnson guilty of first-degree
murder of both Alan and Diane Johnson. The district court sentenced Johnson to concurrent life
sentences, plus fifteen years under I.C. § 19-2520 for a firearm enhancement.
II. ANALYSIS
Johnson raises four issues on appeal. Johnson argues that because aiding and abetting
was not charged in the charging document, the district court’s instruction to the jury on aiding

1
and abetting constructively amended the charging document and resulted in a fatal variance.
Johnson also argues she was deprived of her constitutional right to a unanimous jury verdict
because the district court did not instruct the jury it must unanimously agree on whether Johnson
actually killed the Johnsons or whether she aided and abetted in the killing of the Johnsons.
Finally, Johnson argues her constitutional rights were violated when the district court failed to
remove a certain juror from the jury pool or obtain an unequivocal commitment that the juror
would follow all of the court’s instructions. We address each issue in turn.
A. Constructive Amendment and Variance
Johnson asserts that the charging document did not support a jury instruction on aiding
and abetting, and that consequently, the jury instruction constituted an impermissible variance or
a constructive amendment. 1 Whether there is a variance or constructive amendment is a question
of law over which this Court exercises free review. See State v. Colwell, 124 Idaho 560, 565,
861 P.2d 1225, 1230 (Ct. App. 1993).
A variance between the charging document and the verdict is fatal when “the record
suggests the possibility that the defendant was misled or embarrassed in the preparation or
presentation of his defense.” State v. Windsor, 110 Idaho 410, 418, 716 P.2d 1182, 1190 (1985)
(citing Berger v. United States, 295 U.S. 78, 82-84 (1935)). Johnson argues there is a variance
because the facts the jury would have to find to convict Johnson of aiding and abetting differ
from the facts alleged in the indictment. Johnson further argues this variance was fatal because it
prejudiced her in the preparation and presentation of her defense.
A constructive amendment occurs when the charging terms of the charging document
have been altered literally or in effect. United States v. Dipentino, 242 F.3d 1090, 1094 (9th Cir.
2001). The constructive amendment doctrine springs from the Fifth Amendment right to
indictment by a grand jury. See Stirone v. United States, 361 U.S. 212, 215-16 (1960). The Fifth
Amendment right to an indictment by a grand jury is not a due process right that applies to the
states through the Fourteenth Amendment. Branzburg v. Hayes, 408 U.S. 665, 688 n.25 (1972).
Nonetheless, the Idaho Constitution contains a provision with similar wording to the Fifth
Amendment, on which the constructive amendment prohibition is based.2 See Idaho Const. art I,

1
On appeal, Johnson does not argue there was insufficient evidence to support the giving of the aiding and abetting
instruction.
2
Article I, section 8 of the Idaho Constitution provides:

2
§ 8. The Idaho Court of Appeals has appropriately applied the constructive amendment analysis
to this Idaho constitutional provision. See Colwell, 124 Idaho at 566, 861 P.2d at 1231.
Johnson argues that in Idaho the charging document must contain facts showing the
defendant aided and abetted, and that the failure to charge aiding and abetting in the indictment
was a violation of due process.
1. Idaho Code § 19-1430 and I.C.R. 7(b) are not in conflict.
Johnson asserts there was a constructive amendment because the jury was asked to
determine whether the State proved an element not charged in the indictment. Johnson argues
that aiding and abetting contains a separate mens rea element—a community of purpose in the
unlawful undertaking—and a separate actus reus element—proof that the defendant participated
in or assisted, encouraged, solicited, or counseled the crime. However, this argument overlooks
Idaho’s statutory abolition of the distinction between accessories and principals.
Idaho Code § 19-1430 provides:
Distinction between accessories and principals abolished. — The
distinction between an accessory before the fact and a principal and between
principals in the first and second degree, in cases of felony, is abrogated; and all
persons concerned in the commission of a felony, whether they directly commit
the act constituting the offense, or aid and abet in its commission, though not
present, shall hereafter be prosecuted, tried, and punished as principals, and no
other facts need be alleged in any indictment against such an accessory than are
required in an indictment against his principal.
Thus, Idaho, consistent with many other jurisdictions, has abolished the distinction
between principals and aiders and abettors, and instead treats aiding and abetting as a theory
under which first-degree murder can be proved and not as a separate offense or a crime of a
different nature. See State v. Ayres, 70 Idaho 18, 25, 211 P.2d 142, 145 (1949) (holding the

Prosecution only by indictment or information.—No person shall be held to answer for any
felony or criminal offense of any grade, unless on presentment or indictment of a grand jury or on
information of the public prosecutor, after a commitment by a magistrate, except in cases of
impeachment, in cases cognizable by probate courts or by justices of the peace, and in cases
arising in the militia when in actual service in time of war or public danger; provided, that a grand
jury may be summoned upon the order of the district court in the manner provided by law, and
provided further, that after a charge has been ignored by a grand jury, no person shall be held to
answer, or for trial therefor, upon information of public prosecutor.
The Fifth Amendment to the U.S. Constitution provides:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War or public danger . . . .

3
information charges one offense (involuntary manslaughter) and that it was sufficient to put
defendant on trial upon either the theory that he was a principal or the theory that he was an aider
and abettor); see also, e.g., United States v. Ginyard, 511 F.3d 203, 211 (D.C. Cir. 2008)
(“Aiding and abetting is not a separate offense; it is only a theory of liability—one ground upon
which the jury may find him liable for the charged offense.”); United States v. Smith, 198 F.3d
377, 383 (2d Cir. 1999) (holding aiding and abetting is not a discrete criminal offense);
Londono-Gomez v. Immigration & Naturalization Serv., 699 F.2d 475, 476 (9th Cir. 1983)
(“[T]he aiding and abetting statute does not define a separate offense but rather makes
punishable as a principal one who aids or abets another in the commission of a substantive
offense.”).
However, Johnson argues the last clause of I.C. § 19-1430, which states that it is
unnecessary to allege facts other than what is required in a charging document against a
principal, is procedural, is in conflict with I.C.R. 7, and thus, is of no effect. Idaho Criminal
Rule 7(b) provides that “[t]he indictment or the information shall be a plain, concise and definite
written statement of the essential facts constituting the offense charged.”
When a statute and rule “can be reasonably interpreted so that there is no conflict
between them, they should be so interpreted rather than interpreted in a way that results in a
conflict.” See State v. Currington, 108 Idaho 539, 543, 700 P.2d 942, 946 (1985) (Bakes, J.,
dissenting).
Here, the statute and the rule, I.C. § 19-1430 and I.C.R. 7, can be reasonably interpreted
so that there is no conflict between them. Idaho Criminal Rule 7(b) requires the charging
document be “a plain, concise and definite written statement of the essential facts constituting
the offense charged.” Idaho Code § 19-1430 then provides that in the case of aiding and
abetting, the “essential facts” are only those facts that are required in charging the principal.
Thus, the rule and the statute can be reasonably interpreted so that there is no conflict between
them.
Furthermore, even if a conflict did exist between I.C.R. 7 and I.C. § 19-1430, the statute
would prevail. When there is a conflict between a statute and a criminal rule, this Court must
determine whether the conflict is one of procedure or one of substance; if the conflict is
procedural, the criminal rule will prevail. State v. Beam, 121 Idaho 862, 863, 828 P.2d 891, 892
(1992).

4
 Although a clear line of demarcation cannot always be delineated between
what is substantive and what is procedural, the following general guidelines
provide a useful framework for analysis. Substantive law prescribes norms for
societal conduct and punishments for violations thereof. It thus creates, defines,
and regulates primary rights. In contrast, practice and procedure pertain to the
essentially mechanical operations of the courts by which substantive law, rights,
and remedies are effectuated.
Id. at 863-64, 828 P.2d at 892-93 (emphasis removed) (quoting Currington, 108 Idaho at 541,
700 P.2d at 944 (quoting State v. Smith, 527 P.2d 674, 676-77 (Wash. 1974))). “[L]egislation is
a constitutional exercise of the Legislature’s power to enact substantive law [and] that legislation
is to be given due deference and respect.” In re SRBA Case No. 39576, 128 Idaho 246, 255, 912
P.2d 614, 623 (1995).
Johnson argues that although the first part of I.C. § 19-1430 is substantive, the last clause
stating “no other facts need be alleged in any indictment against such an accessory than are
required in an indictment against his principal,” is procedural. However, the last clause pertains
more than to the essentially mechanical operations of the courts; it is defining and regulating the
mechanism for giving the defendant notice when that defendant committed a felony as an
accessory. The statute abrogates the distinction between principals and accessories and
mandates the defendant “be prosecuted, tried, and punished as [a] principal[] . . . .” I.C. § 19-
1430. A conclusion that the entire statute is substantive is further supported by I.C. § 18-204,
which defines principals as: “[a]ll persons concerned in the commission of a crime . . . whether
they directly commit the act constituting the offense or aid and abet in its commission . . . .”
Together, I.C. § 18-204 and I.C. § 19-1430 show a legislative intent to consider defendants as
principals whether they directly committed the crime or aided and abetted in the commission of
the crime. The Legislature’s definition of principal and abolishment of the distinction between
principal and accessories does not pertain to mechanical operations of the courts; the Legislature
is creating, defining, and regulating primary rights. Thus, I.C. § 19-1430 is substantive and does
not overlap with this Court’s power to create procedural rules. Therefore, even if I.C. § 19-1430
and I.C.R. 7(b) were in conflict, the statute would prevail.
In conclusion, we hold that there is no conflict between I.C. § 19-1430 and I.C.R. 7(b),
that I.C. § 19-1430 is substantive, and that in Idaho, it is unnecessary to allege any facts in the
charging document other than what is required in a charging document against a principal.
2. Idaho Code § 19-1430 does not violate due process.

5
 Johnson also asserts her due process rights were violated by the lack of reference to
aiding and abetting in the charging document.
First, relying on Gautt v. Lewis, 489 F.3d 993 (9th Cir. 2007), Johnson argues the notice
required by the Fourteenth Amendment must come from the charging document itself. Gautt
recognizes the Sixth Amendment’s and Fourteenth Amendment’s right to be informed of the
nature and cause of the charges made in order to adequately prepare a defense. Id. at 1002-03.
The Ninth Circuit expressed doubt that sources outside the charging document could provide the
necessary notice. However, Gautt does not actually hold sources outside the charging document
cannot ever provide the necessary notice. Id. at 1010 (“[F]or purposes of our analysis today, we
will assume-without deciding-that such sources can be parsed for evidence of notice to the
defendant . . . .”).
Moreover, in Gautt, the Ninth Circuit was looking at notice of the actual underlying
charge and not a theory of liabilty; the Ninth Circuit observed that a court can look to sources
outside the charging document to determine whether a defendant had adequate notice of a
particular theory of the case. Id. at 1009 (citing Murtishaw v. Woodford, 255 F.3d 926, 953-54
(9th Cir. 2001), in which the Ninth Circuit held that a defendant charged with first-degree
murder was provided constitutionally sufficient notice to support a felony murder jury
instruction). Here, aiding and abetting was not the actual underlying charge, it was a theory of
liability. 3 See Ayres, 70 Idaho at 25, 211 P.2d at 145.
Second, Johnson argues the facts constituting the crime of aiding and abetting are
elements, and thus, must be charged in the charging document in order to meet due process
requirements. Johnson asserts the charging document must contain the elements of the offense
and that a defendant must be put on notice of all of the elements of the crime essential to the
punishment sought to be inflicted. For support Johnson cites to Apprendi v. New Jersey, 530
U.S. 466, 510-18 (2000) (Thomas, J., concurring), and Jones v. United States, 526 U.S. 227, 232
(1999), where the Court stated: “Much turns on the determination that a fact is an element of an

3
Therefore, Johnson’s reliance on Cole v. Arkansas, 333 U.S. 196 (1948) is misplaced. In Cole, the Court held the
Fourteenth Amendment was violated when the defendants were charged with violating a certain subsection of a state
act but had their conviction upheld based on a different subsection of the state act. Id. at 198-99. However, there
the Court held the two subsections created separate offenses. Id. at 201 n.4. That is not the case here where the
Idaho Legislature has made clear that aiding and abetting is not a separate offense. See I.C. § 19-1430.

6
offense rather than a sentencing consideration, given that elements must be charged in the
indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt.”
The Tenth Circuit considered and rejected the same argument Johnson makes here. See
United States v. Alexander, 447 F.3d 1290, 1298-99 (10th Cir. 2006), cert. denied 127 S. Ct. 315
(2006). In Alexander the Tenth Circuit considered Jones and Apprendi and held that “a charge
of the predicate crime puts defendant on notice that the jury may be instructed on aiding and
abetting, thus satisfying any due process concerns.” Id. at 1299; see also United States v.
Creech, 408 F.3d 264, 273 (5th Cir. 2005) (holding Apprendi does not upset the long-standing
practice of giving aiding and abetting jury instructions even when that theory is not charged in
the indictment; thus, there is no Fifth Amendment violation). Johnson asserts Alexander is
unpersuasive because it distinguishes Jones and Apprendi on the basis that those cases addressed
what is required to increase a punishment. However, Alexander’s holding did not depend upon
that distinction; it held that due process was satisfied because the defendant had notice of the
predicate crime and because aiding and abetting is not a separate offense but is a variant of the
underlying offense. 447 F.3d at 1299.
In Idaho there is no distinction between principals and aiders and abettors, and it is
unnecessary the charging document allege any facts other than what is necessary to convict a
principal. I.C. § 19-1430. Johnson contends that in light of Fourteenth Amendment
jurisprudence, Ayres and its progeny should be overruled because Ayres, which bases its ruling
on I.C. § 19-1430, “in essence, holds that the Idaho Legislature can legislate away the rights of
individuals protected by the Fourteenth Amendment.”
Many jurisdictions have held that it is unnecessary to charge aiding and abetting in the
charging document and that there is no due process violation when a court gives an aiding and
abetting jury instruction even when aiding and abetting is not charged in the charging document.
See, e.g., United States v. Garcia, 400 F.3d 816, 820 (9th Cir. 2005) (“We have also held a
number of times in different contexts that aiding and abetting is embedded in every federal
indictment for a substantive crime.”); United States v. Dodd, 43 F.3d 759, 762 n.5 (1st Cir. 1995)
(stating it is not necessary to plead an aiding and abetting charge because that charge is implicit
in all indictments for substantive offenses); United States v. Clark, 980 F.2d 1143, 1146 (8th Cir.
1992) (“It is well established that a defendant may be convicted of aiding and abetting even
though he was not charged in that capacity. Aiding and abetting is an alternative charge in every

7
count, whether implicit or explicit.”) (citation omitted); United States v. Iglesias, 915 F.2d 1524,
1528 (11th Cir. 1990) (“One who has been indicted as a principal may be convicted on evidence
showing only that he aided and abetted the offense.”); Quigg v. Crist, 616 F.2d 1107, 1111 (9th
Cir. 1980) (“[T]he giving of an aiding and abetting instruction does not violate due process
where the state has abolished the distinction between principals and accessories, and where there
is evidence before the jury to support the instruction.”); United States v. Beardslee, 609 F.2d
914, 919 (8th Cir. 1979) (rejecting the argument that defendant’s due process rights were
violated by an aiding and abetting instruction when the indictment did not explicitly charge him
with aiding and abetting); Glass v. United States, 328 F.2d 754, 756 (7th Cir. 1964) (holding
there was no error in giving an instruction on aiding and abetting when defendant was not
charged with aiding and abetting because “[a]iders and abettors . . . are chargeable directly as
principals.”); People v. Garrison, 765 P.2d 419, 433 n.12 (Cal. 1989) (“[I]n California the
definition of a principal has historically included those who aid and abet . . . and notice as a
principal is sufficient to support a conviction as an aider or abettor.”); Hoskins v. State, 441
N.E.2d 419, 425 (Ind. 1982) (“One can be charged as a principal and convicted on proof that he
aided or abetted another in committing the crime.”); State v. Satern, 516 N.W.2d 839, 843 (Iowa
1994) (holding it was not a surprise or unfair to the defendant for the state to pursue a theory of
aiding and abetting at trial when the charging document did not refer to aiding and abetting);
State v. Pennington, 869 P.2d 624, 629 (Kan. 1994) (holding defendant’s due process rights were
not violated by a jury instruction on aiding and abetting; it is unnecessary for the State to charge
aiding and abetting in the charging document in order to pursue that theory at trial); People v.
Rivera, 646 N.E.2d 1098, 1099 (N.Y. 1995) (“Traditionally, it has been permissible to charge
and admit evidence convicting a defendant as an accessory where an indictment charges only
conduct as a principal”); State v. Johnson, 272 N.W.2d 304, 305 (S.D. 1978) (“It is settled law
that a conviction may be supported by proof that the defendant was an aider and abettor even
though the charging instrument charges him as a principal.”).
Therefore, because Idaho has abolished the distinction between principals and aiders and
abettors, and because it is well-established in Idaho that it is unnecessary to charge the defendant
with aiding and abetting, we hold there was no variance, constructive amendment, or due process
violation. Moreover, even if there were a variance, Johnson was not prejudiced in the
preparation of her defense. First, the State did not introduce evidence of a possible third party

8
shooter; rather, it was Johnson who argued that she could not have been the actual shooter.
Second, the State’s proposed jury instructions submitted before trial included a jury instruction
on aiding and abetting. Thus, Johnson was not misled or embarrassed in the preparation of her
defense.
B. Unanimity Instruction
Johnson contends the district court erred in failing to give an instruction requiring the
basis for the jury’s verdict (aider and abettor or principal) be a unanimous decision. 4 Johnson
acknowledges she did not request this instruction below but contends the issue can be raised on
appeal because the absence of the instruction was fundamental error.
Though I.C.R. 30(b) requires objections to jury instructions be made below, this Court
reviews fundamental errors in jury instructions even in the absence of an objection below. State
v. Anderson, 144 Idaho 743, __, 170 P.3d 886, 892 (2007). To determine whether there was
fundamental error, the Court must first determine whether there was any error. Id. at __, 170
P.3d at 891. In this case, as there is no error, there can be no fundamental error.
“When reviewing jury instructions, this Court must determine whether ‘the instructions,
as a whole, fairly and adequately present the issues and state the law.’” State v. Sheahan, 139
Idaho 267, 281, 77 P.3d 956, 970 (2003) (quoting Silver Creek Computers, Inc. v. Petra, Inc.,
136 Idaho 879, 882, 42 P.3d 672, 675 (2002)). An erroneous instruction is reversible error only
when “the instructions, taken as a whole, misled the jury or prejudiced a party.” Id.
In all felony cases, the jury’s verdict must be a unanimous verdict. Idaho Const. art I, §
8; State v. Scheminisky, 31 Idaho 504, 508, 174 P. 611, 612 (1918), overruled on other grounds
by State v. Johnson, 86 Idaho 51, 62, 383 P.2d 326, 333 (1963).
Johnson relies on a line of cases from the Idaho Court of Appeals which hold that “[a]
specific unanimity instruction is required . . . when it appears . . . that a conviction may occur as
the result of different jurors concluding that the defendant committed different acts.” State v.
Gain, 140 Idaho 170, 172, 90 P.3d 920, 922 (Ct. App. 2004); see also State v. Montoya, 140
Idaho 160, 167-68, 90 P.3d 910, 917-18 (Ct. App. 2004); Miller v. State, 135 Idaho 261, 267-68,
16 P.3d 937, 943-44 (Ct. App. 2000). However, these cases do not support Johnson’s argument.
In those cases the defendants were charged with various sex crimes. In each case there was

4
The district court did instruct the jury that its verdict must be unanimous.

9
evidence of more than one criminal act on each count. Thus, the court required that when
“several distinct criminal acts support one count, jury unanimity must be protected by the state’s
election of the act upon which it will rely for conviction or by a clarifying instruction requiring
the jurors to unanimously agree that the same underlying criminal act has been proven beyond a
reasonable doubt.” Gain, 140 Idaho at 173, 90 P.3d at 923 (emphasis in original). This is not a
case where there was “evidence of more criminal acts than have been charged.” See Montoya,
140 Idaho at 167, 90 P.3d at 917; see also Miller, 135 Idaho at 268, 16 P.3d at 944. Here, only
one criminal act was charged—first-degree murder—and there was no evidence presented of
additional criminal acts.
Schad v. Arizona, 501 U.S. 624 (1991), a United States Supreme Court plurality opinion
as to the unanimity issue, supports a conclusion that a specific unanimity instruction was not
necessary. Schad challenged his first-degree murder conviction because the jury was not
instructed to unanimously agree on the alternative theories of premeditated and felony murder. 5
Id. at 630. The plurality recognized that jurors need not reach agreement on the preliminary
factual issues underlying the verdict. Id. at 632. To determine whether the absence of the
specific unanimity instruction violated the defendant’s due process, the plurality looked at
whether there was “an immaterial difference as to mere means” or whether there was “a material
difference requiring separate theories of crime to be treated as separate offenses subject to
separate jury findings.” 6 Id. at 633. The plurality noted:
[W]e are not free to substitute our own interpretations of state statutes for those of
a State’s courts. If a State’s courts have determined that certain statutory
alternatives are mere means of committing a single offense, rather than
independent elements of the crime, we simply are not at liberty to ignore that
determination and conclude that the alternatives are, in fact, independent elements
under state law.
Id. at 636. Here, the Idaho legislature has abolished all distinction between principals and aiders
and abettors, I.C. § 19-1430, and this Court treats aiding and abetting as a theory and not as a

5
The plurality noted this right can be analyzed under the Sixth Amendment right to a unanimous verdict or under
the Fourteenth Amendment right to due process. Id. at 635 n.5. The plurality concluded “the right is more
accurately characterized as a due process right than as one under the Sixth Amendment.” Id.
6
In a majority opinion, the U.S. Supreme Court later cited Schad with approval to support the proposition that “a
federal jury need not always decide unanimously which of several possible sets of underlying brute facts make up a
particular element, say, which of several possible means the defendant used to commit an element of the crime.”
Richardson v. United States, 526 U.S. 813, 817 (1999).

10
separate offense with distinct elements, see Ayres, 70 Idaho at 25, 211 P.2d at 145. Thus, there is
no basis for a specific unanimity instruction.
Likewise, several other jurisdictions have held that it is unnecessary to provide a specific
unanimity instruction when a defendant can be convicted of an offense based on actions as a
principal or as an aider and abettor. 7 Garcia, 400 F.3d at 819-20; United States v. Horton, 921
F.2d 540, 545-46 (4th Cir. 1990); United States v. Eagle Elk, 820 F.2d 959, 961 (8th Cir. 1987)
(“Even if the jury was divided on whether [the defendant] committed the principal crime or aided
or abetted in its commission, there can be no question that the illegal act was murder.”); People
v. Maury, 68 P.3d 1, 59-60 (Cal. 2003); State v. Martinez, 900 A.2d 485, 494-95 (Conn. 2006);
Simms v. United States, 634 A.2d 442, 445-46 (D.C. 1993); State v. Allen, 453 S.E.2d 150, 159-
60 (N.C. 1995), overruled on other grounds by State v. Gaines, 483 S.E.2d 396 (N.C. 1997);
Holland v. State, 280 N.W.2d 288, 292-93 (Wis. 1979).
Therefore, we conclude it is unnecessary to instruct the jury that it must be unanimous as
to the theoretical basis for committing the offense (aider and abettor or principal) because aiding
and abetting is not a separate offense from the substantive crime. Consequently, the district
court’s failure to instruct the jury to the contrary was not error.
C. Juror 85
Johnson argues that the district court’s failure to remove Juror 85 from the jury pool or its
failure to obtain an unequivocal assurance from Juror 85 that he would follow all of the district
court’s instructions was error.
During voir dire, Juror 85 expressed a concern that “if evidence was presented by a
specialist, and then for some reason [the court] would tell [the jury] to completely disregard that,
and [he] felt that it was good evidence, then [he] [doesn’t] know if [he] could completely
disregard it.”
The State argues Johnson has waived her right to raise this issue on appeal because she
did not make a challenge below. Johnson responds that the information regarding Juror 85 did
not come forth until after she had already passed the panel for cause and that, in any case, this
Court can consider the issue because it constitutes fundamental error.

7
Johnson argues cases from other jurisdictions are not persuasive because they do not analyze the right to a
unanimous jury verdict provided by the Idaho Constitution. However, these cases reiterate the applicable principle

11
 This Court has held that the failure to challenge a juror for cause “indicates a satisfaction
with the jury as finally constituted.” State v. Bitz, 93 Idaho 239, 243, 460 P.2d 374, 378 (1969).
Furthermore, on appeal a defendant cannot claim dissatisfaction with the jury panel when the
defendant “failed to exhaust the means available to her to exclude unacceptable jurors . . . .” See
State v. Mitchell, 104 Idaho 493, 501, 660 P.2d 1336, 1344 (1983).
Johnson argues she had passed the panel for cause before Juror 85 revealed he might
have difficulty disregarding certain evidence. It is true that Johnson passed the panel for cause
just prior to Juror 85’s statement. Nonetheless, after Johnson passed the panel for cause, the trial
court asked the potential jurors whether there was any reason they could not sit as fair and
impartial jurors. Juror 85 then voiced his concern, as did several other jurors. The trial court
communicated those jurors’ concerns with the attorneys and gave them the opportunity to again
question the jurors who had voiced concerns. This questioning was to take place outside of the
presence of the other jurors. Counsel for both sides stated that they did not wish to further
question Juror 85. Counsel then questioned other jurors and after further questioning had the
opportunity to object to those jurors remaining on the panel. Thus, both attorneys were given the
opportunity to again challenge for cause those jurors who had expressed concern. Nonetheless,
Johnson chose not to further question or challenge Juror 85 after he stated he was unsure whether
he could disregard certain evidence.
However, this Court will consider issues raised for the first time on appeal if there is
fundamental error. State v. Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971) (“In case of
fundamental error in a criminal case the Supreme Court may consider the same even though no
objection had been made at time of trial.”)
Error that is fundamental must be such error as goes to the foundation or
basis of a defendant’s rights or must go to the foundation of the case or take from
the defendant a right which was essential to his defense and which no court could
or ought to permit him to waive. Each case will of necessity, under such a rule,
stand on its own merits. Out of the facts in each case will arise the law.
State v. Lewis, 126 Idaho 77, 80, 878 P.2d 776, 779 (1994) (quoting State v. Knowlton, 123
Idaho 916, 918, 854 P.2d 259, 261 (1993)). To determine whether there was fundamental error,

in this case: aiding and abetting is an alternative means of committing the crime charged and whether the defendant
committed the acts as a principal or as an aider and abettor, the defendant’s liability is the same.

12
the Court must first determine whether there was any error. Anderson, 144 Idaho at __, 170 P.3d
at 891.
“The determination of whether a juror can render a fair and impartial verdict rests in the
sound discretion of the trial court.” State v. Luke, 134 Idaho 294, 298, 1 P.3d 795, 799 (2000).
The trial court’s determination is reviewed for an abuse of discretion. Id. To determine whether
an abuse of discretion occurred this Court uses a three-part test: (1) whether the lower court
rightly perceived the issue as one of discretion; (2) whether the court acted within the boundaries
of such discretion and consistently with any legal standards applicable to specific choices; and
(3) whether the court reached its decision by an exercise of reason. Id.
Johnson first argues an expression of an inability to follow instructions is analogous to a
juror expressing a bias towards a party and cites to State v. Hauser, 143 Idaho 603, 150 P.3d 296
(Ct. App. 2006). However, Hauser is distinct from this case in that Juror 85 did not admit to a
bias and here neither attorney nor the court attempted, unsuccessfully, to elicit an unequivocal
assurance that the juror would act with impartiality.
In any case, the record does not show the judge acted erroneously in allowing Juror 85 to
remain on the panel. The judge asked follow-up questions to Juror 85 and responded with an
appropriate explanation addressing Juror 85’s concern. Moreover, Johnson has failed to
demonstrate she was prejudiced by Juror 85’s presence on the panel. Juror 85’s concern was that
he may have difficulty completely disregarding evidence from a specialist. Johnson has pointed
to several instances where the judge instructed the jurors to disregard certain information.
However, in most of those instances either the evidence did not come from a specialist or after an
appropriate foundation was laid, the evidence was allowed. The only relevant instance of any
such instruction Johnson pointed to occurred when the judge instructed the jury to disregard
testimony by an expert witness that it was possible during the manufacturing process of making
the latex glove, someone’s DNA could have gotten inside the gloves. This single instance of the
judge instructing the jury to disregard evidence presented by a specialist is insufficient to show
Johnson sustained any prejudice by Juror 85’s presence on the panel.
We conclude that below there was no error, therefore there was no fundamental error.
Hence, we hold Johnson has waived the right to object to Juror 85 remaining on the panel.

13
 III. CONCLUSION
We hold there was no variance or constructive amendment. We also hold it was not
necessary to give a specific unanimity instruction. Finally, we hold Johnson has waived the right
to object to Juror 85 remaining on the panel. We affirm the decision of the district court.
Justices J. JONES, W. JONES, HORTON and TROUT, Pro tem, CONCUR.

14