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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40995

STATE OF IDAHO,

Plaintiff-Respondent,

v.

NIKOLAS LEE SHERMAN,

Defendant-Appellant.

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2014 Opinion No. 27

Filed: April 1, 2014

Stephen W. Kenyon, Clerk

Appeal from the District Court of the First Judicial District, State of Idaho, 

Kootenai County. Hon. John P. Luster, District Judge. Hon. James Stow, 

Magistrate.

Order of the district court affirming the magistrate’s denial of motion to 

dismiss, affirmed.

John M. Adams, Kootenai County Public Defender; Jay Logsdon, Deputy Public 

Defender, Coeur d’Alene, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

GRATTON, Judge

Nikolas Lee Sherman appeals from the district court’s appellate decision affirming the 

magistrate’s order denying his motion to dismiss and refusing his requested jury instruction. We 

affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

A resident contacted police after finding an intoxicated male on his property. When a 

police officer arrived at the property, the intoxicated male attempted to flee and was restrained 

by the officer. The individual was identified as Sherman and the officer found two prescription 

drug bottles in Sherman’s pockets, one bottle prescribed to Sherman and one bottle prescribed to 

Mr. Gallegos. Sherman initially told the officer that he was holding the prescription drugs for a 

female friend. The police officer arrested Sherman and transported him to the police station, 
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where Sherman changed his story and told the officer he was holding the prescription drugs for a 

friend named Mr. Wilhelm. The officer returned the prescription drug bottle to Mr. Gallegos. 

The prescription drugs may have been in Mr. Gallegos’ vehicle which was parked outside his 

home and left unlocked. The officer located Sherman’s vehicle near Mr. Gallegos’ home and 

was informed that Sherman had been seen in the area prior to the officer’s arrival. 

Sherman was charged with the unlawful possession of a prescription drug, Idaho Code 

§ 54-1732(3)(c). He filed a motion to dismiss, claiming that I.C. § 54-1732(3)(c) violated his

substantive due process rights both on its face and as applied to him. The magistrate denied 

Sherman’s motion to dismiss. Sherman filed a motion to reconsider the magistrate’s decision. 

The magistrate declined to revisit its prior ruling, but invited argument on an issue involving the 

jury instructions. Specifically, Sherman requested that the court provide an instruction regarding 

the warehousemen exception to unlawful possession of prescription drugs found in I.C. § 54-

1734(2)(f). After argument, the magistrate declined Sherman’s request to provide the 

instruction.

Thereafter, Sherman entered a conditional guilty plea, pursuant to Idaho Criminal 

Rule 11, to the unlawful possession of a prescription drug. The magistrate imposed a term of 

180 days in jail with 174 days suspended, with Sherman to serve sixteen hours in the sheriff’s 

labor program in lieu of six days in jail. The magistrate also imposed a two-year term of 

unsupervised probation and imposed a fine. Sherman’s sentence was stayed pending his appeal.

Sherman appealed to the district court. The district court, in its intermediate appellate 

capacity, affirmed the magistrate’s denial of Sherman’s motion to dismiss and the magistrate’s 

denial of Sherman’s proposed jury instruction. Sherman timely appeals.

II.

ANALYSIS

Sherman claims that I.C. § 54-1732(3)(c) is unconstitutional on its face and as applied to 

him. He also contends that the district court erred in affirming the magistrate’s decision to deny 

his proposed instruction informing the jury of the warehousemen exception to the statute.1

 

When reviewing the decision of a district court sitting in its appellate capacity, our standard of 

review is the same as expressed by the Idaho Supreme Court:

 

1 Sherman withdrew his challenge to the proposed jury instruction at oral argument; 

therefore, we need not address it.
3

The Supreme Court reviews the trial court (magistrate) record to determine 

whether there is substantial and competent evidence to support the magistrate’s 

findings of fact and whether the magistrate’s conclusions of law follow from 

those findings. If those findings are so supported and the conclusions follow 

therefrom and if the district court affirmed the magistrate’s decision, we affirm 

the district court’s decision as a matter of procedure.

Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.3d 214, 217-18 (2013) (quoting Bailey v. Bailey, 

153 Idaho 526, 529, 284 P.3d 970, 973 (2012)). Thus, the appellate courts do not review the 

decision of the magistrate court. Bailey, 153 Idaho at 529, 284 P.3d at 973. Rather, we are 

procedurally bound to affirm or reverse the decisions of the district court. State v. Korn, 148 

Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1 (2009).

A. Constitutionality

The United States and Idaho Constitutions protect against State deprivation of a person’s 

“life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1; Idaho

CONST. art. 1, § 13; Idaho Dairymen’s Ass’n, Inc. v. Gooding County, 148 Idaho 653, 661, 227 

P.3d 907, 915 (2010). In order for a defendant to prevail on a substantive due process claim, the 

State action that deprived the defendant of life, liberty, or property must be arbitrary, capricious, 

or without a rational basis. Idaho Dairymen, 148 Idaho at 661, 227 P.3d at 915. A substantive 

due process violation will not be found if the State action “bears a reasonable relationship to a 

permissible legislative objective.” Id.

Constitutional questions are questions of law over which we exercise free review. 

Hernandez v. Hernandez, 151 Idaho 882, 884, 265 P.3d 495, 497 (2011). This Court presumes 

the constitutionality of challenged statutes and we are obliged to seek an interpretation of the 

statute that upholds its constitutionality. Id. The party challenging the statute bears the burden 

of proving the statute unconstitutional. Id. “A party may challenge a statute as unconstitutional 

‘on its face’ or ‘as applied’ to the party’s conduct.” American Falls Reservoir Dist. No. 2 v. 

Idaho Dep’t of Water Res., 143 Idaho 862, 870, 154 P.3d 433, 441 (2007) (quoting State v. 

Korsen, 138 Idaho 706, 712, 69 P.3d 126, 132 (2003)). 

1. Facial constitutional challenge

Sherman filed a motion to dismiss with the magistrate court, claiming that I.C. § 54-

1732(3)(c) was facially unconstitutional. The magistrate denied the motion, finding that the 

State had a rational basis for regulating the possession of controlled substances. The district 
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court, in its intermediate appellate capacity, determined that the statute could be constitutionally 

applied and thus, was not facially unconstitutional. Specifically, the district court stated that the 

statute was not vague because it addressed specific conduct and that the statute did not infringe 

upon a fundamental right. 

A facial challenge to a statute is purely a question of law. State v. Cobb, 132 Idaho 195, 

197, 969 P.2d 244, 246 (1998). Generally, a facial challenge is mutually exclusive from an as

applied challenge. American Falls, 143 Idaho at 870, 154 P.3d at 441. The United States 

Supreme Court has debated the appropriate standard to be applied to facial challenges to state 

statutes.2 In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court stated that “[a] 

facial challenge to a legislative Act is, of course, the most difficult challenge to mount 

successfully, since the challenger must establish that no set of circumstances exists under which 

the Act would be valid.” Salerno, 481 U.S. at 745.3

 In a later case, Justice Stevens stated that 

the Supreme Court had never actually applied the strict Salerno standard and noted that 

Broadrick v. Oklahoma, 413 U.S. 601 (1973), applied a significantly lesser standard providing 

that a statute would be invalidated if the overbreadth of the statute was real and substantial in 

relation to the statute’s plainly legitimate sweep. Washington v. Glucksberg, 521 U.S. 702, 740 

 

2 Additionally, the United States Supreme Court has expressed caution about determining 

the constitutionality of statutes in the context of facial challenges. See Washington State Grange 

v. Washington State Republican Party, 552 U.S. 442, 450 (2008) (stating that facial challenges 

are disfavored for several reasons, including that facial challenges raise the risk of premature 

interpretation of statutes and threaten to short circuit the democratic process by preventing dulyenacted laws from being implemented in a constitutional manner).

3 Sherman claims that the standard articulated in United States v. Salerno, 481 U.S. 739 

(1987), only applies in the civil context. Sherman asserts that Salerno specifically stated that the 

standard did not apply to statutes that criminalize behavior but only to statutes that regulate state 

functions. We find no such limitation in the Salerno opinion. In that case, Salerno argued that 

the Bail Reform Act of 1984 violated his substantive due process because the pretrial detention 

authorized by the Act constituted impermissible punishment before trial. As an initial matter, the 

Supreme Court determined that the statutory scheme authorizing pretrial detention was a 

regulatory function and not a punitive function. The Supreme Court then stated that the 

government’s interest in preventing crime by arrestees is both legitimate and compelling. 

Accordingly, the Court found that the Act was not facially invalid under the Due Process Clause. 

Salerno, 481 U.S. at 752. In so holding, the Court never articulated that the enunciated standard 

only applied in non-criminal matters. We do recognize that substantive due process challenges 

typically occur in the civil context, but we are not convinced that the Salerno standard applies 

exclusively in the civil realm. 
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n.7 (1997) (Stevens, J., concurring) (citing Broadrick, 413 U.S. at 615). The United States 

Supreme Court again recognized the different standards applicable to substantive due process 

challenges in United States v. Stevens, 559 U.S. 460 (2010). In that case, the Court stated: 

To succeed in a typical facial attack, Stevens would have to establish that 

no set of circumstances exists under which [§ 48] would be valid, or that the 

statute lacks any plainly legitimate sweep. Which standard applies in a typical 

case is a matter of dispute that we need not and do not address . . . .

Stevens, 559 U.S. at 472 (citations omitted) (quotations omitted). 

Idaho Appellate Courts have also applied different standards for facially unconstitutional 

challenges. In Hernandez, 151 Idaho at 884, 264 P.3d at 497, the Idaho Supreme Court stated, 

“To succeed on a facial challenge, one must demonstrate that under no circumstances is the 

statute valid.” Id. The Idaho Supreme Court has also applied the rational basis test in 

determining if a statute violated the substantive due process clause. In State v. Bennett, 142 

Idaho 166, 125 P.3d 522 (2005), the Supreme Court said:

Legislative acts that do not impinge on fundamental rights or employ suspect 

classifications are presumed valid, and this presumption is overcome only by a 

“clear showing of arbitrariness and irrationality.” Kawaoka v. City of Arroyo 

Grande, 17 F.3d 1227, 1234 (9th Cir. 1994). Moreover, in a substantive due 

process challenge, we do not require that the [government’s] legislative acts 

actually advance its stated purposes, but instead look to whether “the 

governmental body could have had no legitimate reason for its decision.” Id.

Additionally, “[i]f it is ‘at least fairly debatable’ that the [government’s] conduct 

is rationally related to a legitimate governmental interest, there has been no 

violation of substantive due process.” Halverson v. Skagit County, 42 F.3d 1257, 

1262 (9th Cir. 1994) (quoting Kawaoka, 17 F.3d at 1234).

Bennett, 142 Idaho at 169, 125 P.3d at 525. 

On appeal, Sherman contends that I.C. § 54-1732(3)(c) is violative of substantive due 

process because the law is irrational and arbitrary in its scope. Idaho Code § 54-1732(3)(c)

provides:

(3) The following acts, or the failure to act, and the causing of any 

such act or failure are unlawful:

. . . . 

(c) The possession or use of a legend drug or a precursor by 

any person unless such person obtains such drug on the prescription or 

drug order of a practitioner.
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Pursuant to I.C. § 54-1734(2), pharmacists, practitioners, hospitals, manufacturers, wholesalers, 

carriers, and warehousemen are exempt from the crime of possession of a legend drug in the 

usual and lawful course of their business. 

Sherman argues that the statute is arbitrary because it criminalizes the possession of 

prescription drugs4 unless the drugs were prescribed specifically to the person in possession.5 

According to Sherman, the statute criminalizes ordinary everyday actions, such as a person 

getting prescription drugs for a spouse or dependent. Sherman also claims that the law is 

unconstitutional because it infringes upon a parent’s right to care for a sick child by prohibiting 

the parent from getting medication from the pharmacy that is prescribed to the child. Thus, 

Sherman asserts that limiting the legal possession of prescription drugs to the individual 

prescribed is irrational.

The State claims that the legislature created the statute with the permissible objective of 

promoting and protecting the public health and welfare. The State asserts that the statute 

mitigates the potential for prescription drug misuse and abuse. Thus, the State argues that 

Sherman is unable to demonstrate that the statute is facially unconstitutional. Additionally, the 

State points out that “prescription drug order” was, at the time of Sherman’s arrest, defined as “a 

lawful written or verbal order of a practitioner for a drug or device for an ultimate user of the 

 

4 Legend drug is defined synonymously with prescription drug. 

5 Sherman points to Smith v. Costello, 77 Idaho 205, 290 P.2d 742 (1955) superseded by 

statute, I.C. § 6-611, as an example of an arbitrary law being held unconstitutional. In Smith, a 

conservation officer shot and killed a dog and claimed former I.C. § 37-1407 as an affirmative 

defense. Idaho Code § 37-1407 provided that “any dog running at large in territory inhabited by 

deer, is hereby declared to be a public nuisance and may be killed at such time by any game 

conservation officer . . . .” The Idaho Supreme Court stated that the phrase “territory inhabited 

by deer” could refer to the majority of the state, including farmland. This could make any 

farmer’s dog a public nuisance and at risk of being shot by a conservation officer. Accordingly, 

the Court held that the statute was an “arbitrary, unreasonable and unconstitutional regulation.” 

Smith, 77 Idaho at 209, 290 P.2d at 744. Based on Smith, Sherman argues that I.C. § 54-

1732(3)(c) must be found to be arbitrary unless that State can show that the population of Idaho 

is so disposed as to misuse and abuse any medication which it possesses. Sherman misconstrues 

the applicable standard. A law is arbitrary if the law bears no substantial relationship to the 

health, safety, morals, and general welfare of the public. Dry Creek Partners, LLC v. Ada 

County Comm’rs, ex rel. State, 148 Idaho 11, 19, 217 P.3d 1282, 1290 (2009).
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drug or device, issued and signed by the practitioner.” I.C. § 54-1705(32) (emphasis added).6 

Based on the phrase “ultimate user,” the State claims that a person may lawfully pick up a 

prescribed medication at a pharmacy for another, such as a spouse or child.

We conclude that the district court did not err in affirming the magistrate’s decision to 

deny Sherman’s motion to dismiss. Even applying the lesser substantive due process standard, 

we conclude that I.C. § 54-1732(3)(c) is not facially unconstitutional.

The statute is reasonably related to the State’s legitimate interest of stopping the abuse 

and misuse of prescription drugs. The Idaho Supreme Court has stated that the legislature may 

enact laws concerning the health, safety, and welfare of the people: “The State legislature, under 

the broad concept of police power, may enact laws concerning the health, safety and welfare of 

the people so long as the regulations are not arbitrary or unreasonable.” Van Orden v. State, 

Dep’t of Health and Welfare, 102 Idaho 663, 667, 637 P.2d 1159, 1163 (1981). A law is 

arbitrary if the law bears no substantial relationship to the health, safety, morals, and general 

welfare of the public. Dry Creek Partners, LLC v. Ada County Comm’rs, ex rel. State, 148 Idaho 

11, 19, 217 P.3d 1282, 1290 (2009). 

Idaho’s legislature recognized the need to regulate the use, possession, manufacture, and 

distribution of prescription drugs when it enacted the Idaho Pharmacy Act, I.C. §§ 54-1701 to 

54-1771. In its statement of purpose, the legislature stated, “It is the purpose of this act to 

promote, preserve and protect the health, safety and welfare of the public by and through the 

effective control and regulation of the practice of pharmacy . . . .” I.C. § 54-1703. Idaho Code 

§ 54-1732(3)(c) directly relates to the legislative purpose by criminalizing an act that the 

legislature determined to be detrimental to public health and welfare. Limiting the possession of 

prescription drugs to those who are authorized to manufacture and distribute drugs, and to those

who are lawfully prescribed drugs, mitigates the potential for individuals to misuse or abuse 

 

6 In 2013, Idaho Code § 54-1705(32) was recodified as I.C. § 54-1705(36) and amended to 

state, “‘Prescription drug order’ means a valid order of a practitioner for a drug or device for an 

ultimate user of the drug or device.”
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prescription drugs.7 Accordingly, the State had a legitimate interest and a rational basis for 

enacting the statute. 

Sherman concedes that the State has a legitimate interest in stopping the misuse and 

abuse of prescription drugs. However, he claims I.C. § 54-1732(3)(c) is absurd because the State 

has no legitimate interest in preventing caregiving and ordinary everyday actions.8 Even 

applying the lesser substantive due process standard, we conclude that any overbreadth of the 

statute is not substantial in relation to the rational and legitimate interest the State had in enacting 

the statute.

 In addition, we do not read the statute as broadly as Sherman contends. Sherman argues 

that pursuant to the plain language of the statute, nearly every Idaho citizen will at some point 

commit a misdemeanor by possessing another person’s prescription medication. This Court 

exercises free review over the application and construction of statutes. State v. Reyes, 139 Idaho 

502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a statute is plain and 

unambiguous, this Court must give effect to the statute as written, without engaging in statutory 

construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 

134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The words must be given their plain, usual, 

 

7 Prescription drug abuse has been recognized throughout the country as an act detrimental 

to the public health, safety, and welfare:

Prescription drug abuse is the fastest growing drug problem in the United 

States. Although public perception sees prescription medications as inherently 

safer than illicit street drugs, prescription opioids caused 14,800 deaths in 2008, 

which is more than cocaine and heroin combined. Prescription drug abuse is even 

more prevalent than most illicit drug use, and prescription drug-related deaths 

have increased over 300-fold from 1999 to 2008. 

Michael C. Barnes & Gretchen Arndt, The Best of Both Worlds: Applying Federal Commerce 

and State Police Powers to Reduce Prescription Drug Abuse, 16 J. HEALTH CARE L. & POL’Y

271, 271-72 (2013). 

8 Sherman also contends that I.C. § 54-1732(3)(c) is unconstitutional because it violates a 

parent’s right to raise children by criminalizing the act of administering prescription drugs to a 

child. He also claims that it is absurd to criminalize those administering medication to family 

members, but give immunity to warehouse workers who could be just as likely to abuse 

prescription drugs. Nonetheless, the statute bears a reasonable relation to a legitimate state 

interest; thus, Sherman’s facial constitutional challenge fails.
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and ordinary meaning, and the statute must be construed as a whole. State v. Hart, 135 Idaho 

827, 829, 25 P.3d 850, 852 (2001). 

Idaho Code § 54-1732(3)(c) criminalizes the possession of prescription drugs by any 

person unless such person obtains the drugs on the prescription or drug order of a practitioner. 

At the time of Sherman’s arrest, “prescription drug order” was defined, in relevant part, in I.C. 

§ 54-1705(32) as a “lawful written or verbal order of a practitioner for a drug or device for an 

ultimate user of the drug or device, issued and signed by a practitioner.” The term “ultimate 

user” is not defined in Title 54.9 However, the plain and ordinary meaning of the term “ultimate 

user” is the person intended, through the prescription, to use the drug. Thus, I.C. § 54-1732(3)(c) 

does not criminalize a person who, by presentation to a pharmacist of a prescription, obtains a 

prescription medication for the final person authorized to use the medication. Accordingly, 

many of the scenarios Sherman suggests would be criminal--such as picking up prescription 

medications for a grandparent, spouse, or child--are not criminalized by the plain language of the 

statute. As a result, any overbreadth of the statute is not constitutionally substantial.

 Therefore, the magistrate did not err in denying Sherman’s motion to dismiss based on 

his facially unconstitutional challenge and the district court properly affirmed the magistrate’s 

decision.

2. As applied constitutional challenge

In order for Sherman to prevail in his as applied challenge, he must demonstrate that the 

statute is unconstitutional as applied in his specific instance. Hernandez, 151 Idaho at 884, 265 

P.3d at 497. Sherman contends that I.C. § 54-1732(3)(c) is unconstitutional as applied because 

the statute criminalized his asserted non-criminal conduct of storing medication for his friend. 

 

9 Idaho Code § 37-2701(ee) defines “ultimate user” as “a person who lawfully possesses a 

controlled substance for his own use or for the use of a member of his household or for 

administering to an animal owned by him or by a member of his household.” We recognize that 

statutory definitions “provided in one act do not apply ‘for all purposes and in all contexts but 

generally only establish what they mean where they appear in that same act.’” State v. 

Yzaguirre, 144 Idaho 471, 477, 163 P.3d 1183, 1189 (2007) (quoting Maguire v. Yanke, 99 Idaho 

829, 836, 590 P.2d 85, 92 (1978). Nonetheless, the common meaning of “ultimate” is “last in a 

progression or series; final” or “original.” Merriam-Webster.com. Merriam-Webster, n.d. Web. 

10 Mar. 2014. http://www.merriam-webster.com/dictionary/ultimate. Further, “user” is defined 

as “a person or thing that uses something.” Merriam-Webster.com. Merriam-Webster, n.d. Web. 

10 Mar. 2014. http://www.merriam-webster.com/dictionary/user. Based on these definitions, the 

term “ultimate user” is the person who was intended to use the prescription drug. 
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Sherman argues that his conduct was not reasonably related to the objectives of the statute, and 

therefore to criminalize his asserted non-criminal conduct would be unconstitutional. Sherman 

also contends that his role of storing the prescription drugs is similar to the role of a 

warehouseman who stores prescription drugs prior to distribution. He argues that there is no 

rational basis to exempt warehousemen from criminal liability, and yet punish him for 

performing the same task that warehousemen perform. The State claims that the statute’s 

regulation of prescription medication possession is reasonably related to the State’s legitimate 

interest in promoting and protecting public health and welfare and applied here to clearly 

criminal conduct. 

The only evidence submitted to the magistrate at the hearing for Sherman’s motion to 

dismiss was a police report detailing the facts of Sherman’s arrest. The police report stated that 

upon arrival at the location, the police officer found an intoxicated male who identified himself 

as Wilhelm. He attempted to flee and was detained by the officer. The officer asked him if he 

had anything in his pockets and he stated that he had one of his female friend’s prescription drug

bottles on him. He stated that the female friend left the prescription drug bottle with him earlier 

that day. The officer removed two prescription drug bottles, one prescribed to Mr. Gallegos and 

one prescribed to Sherman. The officer removed the male’s wallet and identified him as 

Sherman. Sherman then changed his story and told the officer that a male named Wilhelm left 

the prescription bottle in his car. The officer arrested Sherman and contacted Mr. Gallegos. 

Mr. Gallegos reported that his vehicle was left outside unlocked; but was not certain if the 

prescription drug bottle was left inside the vehicle. The officer returned the prescription drug 

bottle to Mr. Gallegos. The officer also discovered Sherman’s vehicle parked near Mr. Gallegos’ 

residence and a neighbor informed the officer that Sherman was in the area prior to the officer’s 

arrival. At the police station, Sherman again altered his account, stating that he was playing 

Frisbee golf with Wilhelm earlier in the day and Wilhelm asked him to hold the prescription drug

bottle because he did not have any pockets. Sherman also denied parking his car near 

Mr. Gallegos’ residence.

At the hearing on Sherman’s motion to dismiss, the magistrate found that the reasonable 

conclusion from the facts in the police report was that Sherman “improperly acquired” the drugs 

and that Sherman had “in fact stolen the prescription bottle” from Mr. Gallegos’ vehicle or 

residence. The magistrate arrived at this conclusion based on the police report and the 
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“connective facts,” such as Sherman referencing that the prescription bottle belonged to a female 

when a male’s name was on the label, and then Sherman changing his story and claiming that the 

bottle belonged to Wilhelm, which still did not match the label on the bottle. Additionally, 

Sherman never indicated that the bottle was given to him by Mr. Gallegos. Therefore, the 

magistrate stated that the facts of the case were not that Sherman was storing the prescription 

medication for another, but that Sherman stole the bottle from Mr. Gallegos.10 Accordingly, the 

magistrate found that the statute was not unconstitutional as applied and denied Sherman’s 

motion to dismiss. The district court affirmed the magistrate’s decision. 

Substantial evidence supports the magistrate’s finding that Sherman was not simply 

storing the prescription drugs for a friend. Sherman’s contradicting accounts, his vehicle’s 

location, Mr. Gallegos’ statements, and the neighbor identifying Sherman as being near 

Mr. Gallegos’ residence indicates that Sherman, at the very least, did not come into possession of 

Mr. Gallegos’ prescription drug bottle through a friend while playing Frisbee golf. Accordingly, 

Sherman’s argument that I.C. § 54-1732(3)(c) was unconstitutional as applied to him because he 

was simply storing the drugs for a friend is belied by the record. Certainly, the legislature has a 

rational basis to regulate the unauthorized and unlawful possession of prescription drugs in order 

to prevent the abuse and misuse of prescription drugs. Therefore, the district court did not err in 

affirming the magistrate’s decision to deny Sherman’s motion to dismiss based on his as applied 

constitutional challenge. 

III.

CONCLUSION

Sherman has failed to demonstrate reversible error. The magistrate properly denied 

Sherman’s motion to dismiss. Accordingly, the district court’s order affirming the magistrate’s 

decision is affirmed.

Chief Judge GUTIERREZ and Judge LANSING CONCUR.

 

10 By presenting his motion, based upon the police report, Sherman called upon the 

magistrate to resolve the issues of fact concerning how Sherman acquired the drugs. He has not 

claimed below or on appeal that these factual issues were for resolution by a jury.