IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 36116

- 2009
STATE OF IDAHO,

Plaintiff

- Respondent ,

v. CLIFFORD STEWART,

Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) Boise , June 2010 Term

2010 Opinion No. 67

Filed: June 25, 2010
Stephen W. Kenyon , Clerk

Appeal from the District Court of the Fifth Judicial District of the State of Idaho, in and for Cassia County. The Hon. Michael R. Crabtree , District Judge.
The judgment of the district court is vacat ed

. Molly J. Huskey, State Appellate Publ ic Defender, Boise, for appellant

. Sara h E. Tompkins argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent

. Kenneth K. Jorgensen argued.

EISMANN, Chief Justice. This is an appeal following a conditional plea of guilty to the crime of felony stalking. We vacate the judgment and remand for further proceedings that are consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY On January 2, 2008, the Cassia County prosecutor filed a complaint charging Clifford Stewart (Defendan t) with the crimes of stalking in the first degree , a felony, and violating a no contact order, a misdemeanor. As required by Idaho Criminal Rule 3, the prosecutor also filed the sworn affidavit of a complainant, a deputy sheriff
, who submitted an affidav it setting forth the facts supporting the charges based upon information received from the victim. At his initial2

appearance, Defendant waived his right to a preliminary hearing o n the stalking charge
, 1 and he
was bound over to the district court.
On Jan uary 17, 2008, the prosecutor filed an information in the district court charging
Defendant with stalking in the first degree and with violating a no contact order. Defendant was arraigned on January 31, 2008, and he entered pleas of not guilty to both ch arges. On April 25, 2008, Defendant filed a motion to dismiss ―for the reason that the State‘s Affidavit of Probable Cause does not state a course of conduct, as is necessary in the Statutes.‖ That motion was argued four days later by Defendant‘s counsel and the prosecuting attorney

. At the beginning of the hearing, the State was granted permission to file an amended information that had been prepared by a deputy prosecutor. Defendant argued that
, based upon information from a deputy prosecutor, there w as insufficient evidence to convict him of the felony charge. In August 2007, Defendant had been convicted of misdemeanor stalking in Minidoka County based upon conduct concerning the same victim. The misdemeanor stalking statute, Idaho Code § 18

- 7 9 06, r equires for conviction a
―course of conduct‖ that the statute defines as wrongful. It defines a ―course of conduct‖ as ―repeated acts of nonconsensual contact involving the victim or a family or household member
of the victim .‖ Idaho Code § 18

- 7 9 06(2)(a)

. The felony statute, Idaho Code § 18

- 7 9 05, require s : (a) that the defendant commit the crime of stalking as defined in the misdemeanor statute (which requires a course of conduct) and (b) that there be one of six additional circumstances. Defendant arg ued that the State‘s theory was that the prior misdemeanor conviction could satisfy
the course

- of

- conduct requirement for the felony charge. Defendant argued that such construction does not comply with the statute and would violate the Double Jeopardy Cla use. He
contended that i n order to commit a felony, there must be an additional course of conduct that could constitute misdemeanor stalking in addition to one of the six listed circumstances. In response, the prosecutor stated that he disagreed with Def endant‘s reading of the
statute. Th e prosecutor contended that the felony stalking statute should be construed like the felony DUI statute. He argued, ― There are lots of cases, there ‘ s lots of statutes that have
enhancements for additional violations of the same crime. You‘ ve got enhanced DUI s, you ‘ve got felony DUI s, you‘ ve got lots of different kinds of cases where there are enhancements. ‖

1 Because the charge of violating a no contact order was a misdemeanor, Defendant was not entitled to a preliminary hearing on that charge.3

The district court stated that Defendant seemed to be asserting that the State merely
lacked sufficient evidence to prove the felony offense and asked whether Defendant was asking for a preliminary hearing. Defendant answered that he only needed the court to resolve the legal issue. The prosecutor then agreed, stating that they needed a ruling on how the statute sh ould be interpreted. The prosecutor argued :

What we really need in this case, you r Honor, and we do need a Court‘ s determination, and that is w h ether or not this course of conduct

– There is only the one act on the

– on this felony

. I mean, we ‘re saying that if you

– that this means if you ‘ ve been convicted of a stalking and you do it again, it ‘ s a felony. And they ‘ re saying that when you do it again, you‘ ve got to do it at least a couple of times to get to course of conduct. We ’ re saying that the cour se of conduct can go back to the prior action. So I think we do need a ruling on the statute itself as to what that means. It ‘ s not a question of us going back and adding more, because the victim in this case did not wait until there was

– she w as victim ized, and then she gets victimized again, and that ‘ s when she wanted us to bring a felony, which we did. She didn ‘ t want to wait, and we didn ‘ t want her to have to wait until she was victimized two or three times to meet this course of conduct. (Emphase s added.)
Thus, the issue presented to the district court was whether the State could use the prior course of conduct upon which Defendant‘s misdemeanor conviction was based to satisfy the

course

- of

- conduct requirement for felony stalking. When deciding this motion to dismiss, the
district court did not address that issue. On June 4, 2008, it entered an order granting the motion to dismiss the amended information on the grounds: (1) that it did not allege any facts supporting the requirement that Defend ant acted ―knowingly‖; (2) that it did not allege facts showing a ―course of conduct‖; and (3) it did not allege facts supporting the requirement that Defendant‘s alleged conduct ―would cause a reasonable person substantial emotion [sic]
distress.‖ The co urt gave the State fourteen days to amend its information. On June 16, 2008, the State filed its second amended information. On July 23, 2008, Defendant filed another motion to dismiss ―upon the grounds and for the reason that the State‘s
Affidavit of Pr obable Cause does not state a course of conduct, as is necessary in the Statues [sic].‖ That motion was argued on September 29, 2008. Defendant basically restated the arguments he had made at the prior hearing. The deputy prosecutor at the hearing argue d, ―The fact of the matter is that the State and the defense and this Court does [sic] not know which repeated acts form the factual basis of his conviction for the second degree misdemeanor stalking
case.‖ He then argued that even if Defendant‘s version of the facts was correct, ― if there ‘ s4

subsequent contact after a conviction and there ‘ s a no contact order, for example, as there is alleged in this case, then that should be sufficient for a felony. ‖ On October 14, 2008, the district court issued i t s dec ision and denied the motion to
dismiss. The court held that although the statute requires repeated acts constituting a course of conduct, ― The statue [sic] provides no chronological or other time

- related requirements regarding the acts, nor does the statu e [sic] specifically bar consideration in the instant case of acts that occurred prior to the conviction in Minidoka County. ‖ With respect to the Double Jeopardy argument, the court stated that ―for the sake of argument, the Court will accept Defendant‘s

statements [of fact] as being true.‖ It held that the felony statute ―requires proof of at least one element that is different from the elements of Defendant‘s prior conviction,‖ and therefore ―the Double Jeopardy Clause is not implicated in this case.‖
The State and Defendant then entered into a condition al plea agreement. It provided that Defendant would plead guilty to the felony and the State would dismiss other charges. It added, ―This plea is a conditional plea based upon the adverse ruling in Def endant‘s Motion to Dismiss, which he intends to appeal. Should the appellate court rule in his favor then he may withdraw his guilty plea.‖ Defendant pled guilty, was sentenced, and timely appealed.

II. ANALYSIS
1. M otion to dismiss on the ground th at the State’s affidavit of probable cause was
insufficient. This case was commenced by the State filing a criminal complaint. Idaho Criminal Rule 3 states, ― The complaint shall be made upon oath before a magistrate; provided, a prosecuting attorney may, without oath or affirmation, sign a complaint before a magistrate based upon the sworn affidavit of a complainant, which shall be filed with the court. ‖ Because the complaint alleged that Defendant had committed the crime of felony stalking , he had a rig ht to a preliminary hearing. State v. McGreevey , 17 Idaho 453, 463

- 64, 105 P. 1047, 1050 (1909); Idaho Const. Art. I, § 8; Idaho Code § 19

- 804; Idaho Crim. R. 5.1. The purpose of the preliminary hearing is to determine whether there is probable cause to believe that the defendant committed a felony. Id . A defendant who waives the right to a preliminary hearing waives the right to a probable cause determination regarding the charged felony. As we stated in State v.
Hendricks , 80 Idaho 344, 348 , 330 P.2d 334, 336 (1958) (citations omitted; emphases added) :5 In cases where a defendant, accused of a public offense triable in the district court, waives preliminary hearing, no depositions to support the charge in the district court are required. The accused in such circumstances is held to answer for the crime charged in the criminal complaint filed with the committing magistrate. If an accused desires testimony taken before the committing magistrate, he could, by demanding, secure a preliminary hearing, and ascertain the facts on which the charge was based. Respondent having waived such hearing, he is not now in a position to complain. Where a preliminary hearing is had the information thereafter filed in the district court does not depend on the complaint filed with the committing magistrate but on the commitment and the facts shown by the preliminary hearing.

 ̳ A waiver of the preliminary examination by a person accused of a crime operates as an admission of the existence of sufficient evidence to justif

y the examining officer in holding him for trial . * * *‘ Defendant, having waived his right to a preliminary hearing, admitted the existence of
sufficient evidence to find that there was probable cause to believe that he committed the crime of felony stal king. He cannot thereafter challenge the existence of probable cause necessary to file an information to prosecute that crime. 2 When the State filed the amended information and the second amended information, it also filed an amended affidavit of probabl e cause and a second amended affidavit. During the argument on his motion to dismiss, Defendant made reference to the sufficiency of the second amended affidavit. Even though it was filed after Defendant waived his right to a preliminary hearing, both of those affidavits have no significance with respect to the determination of probable cause

. As stated above, the purpose of the probable cause affidavit is to present a basis for filing the complaint. Idaho Crim. R. 3. If the complaint charges a felony and the defendant waives the preliminary hearing, the State can file an information charging the felony alleged in the complaint, or a crime that constitutes an included felony offense. State v. O’Neill , 118 Idaho 244, 249

- 50, 796 P.2d 121, 126

- 27 (1990). The State can also amend the information, without requiring a new probable cause determination, where the amended information does not add to or change the offense with which the defendant is charged, but merely adds an element necessary to charge that o ffense correctly. Id

. ; Idaho Code § 19

- 1420; Idaho Crim. R. 7(e). In this case, the

2 If the affidavit of probable cause was insuffic ient, a defendant could still challenge the issuance of an arrest warrant even though he or she later waived a preliminary hearing on the charged felony.6

amended informations did not allege an offense different from that alleged in the complaint. Therefore, the amended and second amended affidavits served no function. De fendant having waived his right to a preliminary hearing, he admitted that there was sufficient evidence to establish probable cause with respect to the charge of felony stalking

. In the trial court, Defendant argu ed that it was his understanding from tal king with a deputy prosecutor that the State‘s evidence of a course of conduct would be based upon the conduct for which Defendant was previously convicted. During oral argument on appeal, Defendant contended that the State‘s discovery responses showed th at to be correct. The Idaho
Rules of Criminal Procedure do not have a provision comparable to a motion for summary judgment found in the Idaho Rules of Civil Procedure

. A defendant cannot have a case dismissed on the ground that the State‘s discovery res ponses show that it cannot prove the crime charged. The only somewhat comparable motion would be a motion to dismiss on the ground that the evidence at the preliminary hearing did not show probable cause to believe that the
defendant had committed the fel ony charged. See, e.g., State v. O’Mealey , 95 Idaho 202, 506 P.2d 99 (1973). Of course, that motion would require that there was a preliminary hearing. In summary , because Defendant waived his right to a preliminary hearing, he cannot dispute whether th ere is probable cause to believe he committed the felony charged. The district court did not err in denying his motion to dismiss the information on the ground that there was a lack of probable cause. Although the district court did not deny the motion o n this basis, we affirm the denial on the correct theory. Nampa & Meridian Irrigation Dist. v. Mussell , 139 Idaho 28, 33, 72 P.3d 868, 873 (2003).
2. M otion to dismiss on the ground that this prosecution violated the Double Jeopardy Clause. A defendant can move to dismiss based upon former jeopardy. Idaho Crim.
R. 12 b (6). Even though Defendant did not include that ground in his motion, he did argue double jeopardy as an alternative ground for his motion, and the district court addressed that
issue. T herefore, we will consider it on appeal.

― The double jeopardy clauses in the Idaho and federal constitutions prohibit putting one in jeopardy twice for the same crime. This protection applies not only to multiple punishments, but also to multiple prosecu tions for the same crimes. ‖ State v. Manley , 142 Idaho 338, 343, 127 P.3d 954, 959 (2005). Defendant contended that the prosecution intended to use the incidents upon which his misdemeanor stalking conviction was based as the course of conduct required t o7

establish the felony stalking charge. In its decision, the district court wrote, ― The Defendant provides no factual or documentary support for this position. But for the sake of argument, the Court will accept Defendant ‘ s statements as being true. ‖ Th e court then ruled that even if the facts were as Defendant alleged, there would be no violation of the Double Jeopardy Clause. After the court denied the second motion to dismiss, Defendant pled guilty to felony stalking on the condition that if that rul ing were reversed on appeal, he could withdraw his guilty plea. In addressing the former jeopardy issue, the district court relied upon the Blockburger test. Under it, ― wh ere the same act or transaction constitutes a violation of two distinct statutory

p rovisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.‖ Blockburger v. United
States , 284 U.S. 299, 304 (1932). The district court correctly stated the Blockburger test , but misapplied it. Idaho Code § 18

- 7905 (1) states, ―A person commits the crime of stalking in the first degree [a felony] if the person violates section 18

- 7906 , Idaho Code, [ misdemeanor stalking ] and: [one of six listed circ umstances exists].‖ The felony stalking statute incorporates by reference the misdemeanor stalking statute. Therefore, all of the elements of misdemeanor stalking are included in the crime of felony stalking. The district court held that the Double Jeop ardy Clause did not apply because felony stalking included an element that was not included in misdemeanor stalking. It wrote:

In the matter before this Court, it is clear that I.C. §18

- 7905 requires proof of at least one element that is different from t he elements of the Defendant ‘ s prior conviction of I.C. §18

- 7906. In addition to the elements of §18

- 7906, on this charge the State must prove any of the following: (a) The actions constituting the offense are in violation of a temporary restraining order, protection order, no contact order or injunction, or any combination thereof; or (b) The actions constituting the offense are in violation of a condition of probation or parole; or (e) The defendant has been previously convicted of a crime under this sect ion or section 18

- 7906, Idaho Code, or a substantially conforming foreign criminal violation within seven (7) years, notwithstanding the form of the judgment or withheld judgment. I.C . §18

- 7905. Therefore, the Double Jeopardy Clause is not implicated in t his case. 3

3 The district court only considered subsections (a), (b), and (e) of Idaho Code § 18

- 7905(1) because those were the subsections upon which the State based the charge of felony stalking.8

However, under the Blockburger test, each offense must contain an element not included in the other. Not only must felony stalking include an element not contained in misdemeanor stalking, but misdemeanor stalking must include an element not contained in felony stalking. Because the felony stalking statute incorporates the misdemeanor stalking statute by reference,
the two offenses are not separate offense s under the Blockburger test. Misdemeanor stalking is a
lesser included offense of felo ny stalking. 4 Therefore, the district court erred in its double jeopardy analysis. The double jeopardy issue is more complex than simply applying the Blockburger test. That test applies ―where the same act or transaction constitutes a violation of tw o di stinct statutory provisions.‖ Blockburger v. United States , 284 U.S. 299, 304 (1932). The State contends that it is not seeking to punish Defendant twice for the same act or transaction. It contends that the acts that form the basis of this felony prose cution in clude, but are not identical

to , the acts that were the basis of the misdemeanor conviction. It asserts that they are not
identical because t his prosecution is based upon the acts for which Defendant was convicted of misdemeanor stalking plus one additional act. Before addressing the State‘s argument, it is first necessary to construe Idaho Code § 18

- 7905 to determine whether the statute permits what the State is attempting to do. 3. Motion to dismiss based upon construction of Idaho Code § 18

- 7905(1). In connection with Defendant‘s motion to dismiss, he also argued the proper construction of Idaho Code § 18

- 7905(1). The district court summarized Defendant‘s argument as follows, ― To state
the issue another way, the question is whether, in the instant prosecution, the State is permitted [to] use acts of the Defendant that led to his prior misdemeanor stalking conviction t o prove the
element of a  ̳course of conduct‘ sufficient to satisfy § 18

- 7905(1). ‖ The court set out the State‘s argument as f

ollows, ― In response, the State argues that the defendant ‘ s previous conduct, for
which he was convicted under §18

- 7906 for stalking this same victim, can be included in the  ̳course of conduct‘ alleged to satisfy the requirement of §18

- 7905(1)

— that the per son first violate §18

- 7906. ‖ The court resolved the issue in favor of the State. It wrote, ―The statue [sic] provides no chronological or other time

- related requirements regarding the acts, nor does the

4 ― An offense will be deemed to be a lesser included offense of another, greater offense, if all the elements required to sustain a conviction of the lesser included offe nse are included within the elements needed to sustain a co nviction of the greater offense.‖ State v. McCormick , 100 Idaho 111, 114, 594 P.2d 149, 152 (1979).9

statue [sic] specifically bar consideration in the instant case of acts that occurred prior to the conviction in Minidoka County. ‖ The district court erred in its interpretation of the statute. The second amended information alleged that Defendant‘s conduct violated subsections (a), (b), and/or (e) of Id aho Code § 18

- 7905(1). The relevant portion of the statute is as follows:

A person commits the crime of stalking in the first degree if the person violates section 18

- 7906, Idaho Code, and: (a) The actions constituting the offense are in violation of a temporary restraining order, protection order, no contact order or injunction, or any combination thereof; or (b) The actions constituting the offense are in violation of a condition of probation or parole; or

. . . (e) The defendant has been previou sly convicted of a crime under this section or section 18

- 7906, Idaho Code, or a substantially conforming foreign criminal violation within seven (7) years, notwithstanding the form of the judgment or withheld judgment; or

. . . .

To commit the crime of felony stalking, the person must first violate section 18

- 7906 by engaging in a prohibited course of conduct. Idaho Code § 18

- 7906(1). 5 That course of conduct requires ―repeated acts of nonconsensual contact involving the victim or a family or household member of the victim.‖ Idaho Code § 18

- 7906(2)(a).
Section 18

- 7905 (1)(a)

– violation of a no contact order. The second amended information alleges that Defendant engaged in a prohibited course of conduct, ―w here the actions constituting the offense are in v iolation of a no contact order .‖ U nder section 18

- 7905(1)(a), a person commits a felony if he or she ― violates section 18

- 7906 , Idaho Code, and

. . . [t] he actions constituting the offense are in violation of a

. . . no contact order

. . . .‖ The ―a ctions constituting
the offense‖ would be the course of conduct that violated section 18

- 7906. Because a violation
of section 18

- 7906 requires a ―course of conduct‖ consisting of ―repeated acts of nonconsensual

5 The statute provides:

A person commits the crime of stalking in the second degree [a misdeme anor] if the person knowingly and maliciously: (a) Engages in a course of conduct that seriously alarms, annoys or harasses the victim and is such as would cause a reasonable person substantial emotional distress; or (b) Engages in a course of conduct such as would cause a reasonable person to be in fear of death or physical injury, or in fear of the death or physical injury of a family or household member.10

contact‖ and i t is the actions (plural) cons tituting the offense that must violate the no contact order, e ach of the acts constituting that course of conduct would have to violate the no contact
order. The specific acts for which Defendant was convicted of misdemeanor stalking are not
shown in the record. From the facts reflected in the record and the arguments, it does not appear that Defendant engaged in repeated acts of nonconsensual contact that all viol ated the no contact
order. It appears that the no contact order was issued in the case in w hich Defendant was convicted of misdemeanor stalking. A court can issue a no contact order when a person is charged with or convicted of violating section 18

- 7906. Idaho Code § 18

- 920(1). To violate that section, the person must engage in the prohibited course of conduct consisting of repeated acts of
nonconsensual contact . The course of conduct necessary to constitute such violation must have preceded the issuance of the no contact order because the person must have been charged with or
convicted of vi olating section 18

- 7906 before the no contact order was issued. Once the no contact order is issued, the person would then have to engage in a new course of prohibited conduct in order to commit a felony under section 18

- 7905(1)(a) because each of the act s constituting that course of conduct must violate the no contact order. The inference from the arguments is that Defendant committed one act, not a course of conduct consisting of repeated acts, that violated the no contact order. If that is correct, De fendant did not commit felony stalking under this subsection.
Section 18

- 7905 (1)(b )

– violation of a condition of probation. The second amended information alleges that Defendant engaged in a prohibited course of conduct, ― whe re the actions constituting this offense are violation of a condition of probation. ‖ Under 18

- 7905 (1)(b ), a person commits a felony if he or she ― violates section 18

- 7906 , Idaho Code, and

. . . [t] he actions constituting the offense are in violation of a condition of probation

. . . .‖ The ―actions constituting the offense‖ would be the course of conduct consisting of repeated acts of
nonconsensual contact that violated section 18

- 7906. Because it is the actions (plural) constituting the offense that must violate a condition of pro bation , each of the acts constituting
that course of conduct would have to violate the condition

. The second amended information alleges that Defendant was sentenced for the misdemeanor stalking on August 23, 2007. The actions constituting the course of conduct that
violated section 18

- 7906 would have to be repeated acts of nonconsensual contact that all11

violated a condition of probation. Because the conditions of probation could not have been imposed until De fendant was sentenced, the acts violating a c ondition of probation would have to have occurred after his sentencing. The second amended information alleges that such acts occurred between the Spring of 2006 and December 31, 2007. Obviously, acts occurring before
Defendant was sentenced for misdemea nor stalking on August 23, 2007, c ould not have violated a condition of probation in that case. Again, the inference from the record and arguments is that there was only one act of nonconsensual contact that violated a condition of Defendant‘s probation. If that is correct, Defendant did not commit felony stalking under this subsection.
Section 18

- 7905 (1)(e )

– prior conviction within seven years. The second amended information alleges that Defendant engaged in a prohibited course of conduct, ― where the
de fendant had been previously convicted of stalk ing in the second degree w ithin the last seven

years .‖ Under 18

- 7905(1)( e ), a person commits a felony if he or she ― violates section 18

- 7906 , Idaho Code, and

. . . [t] he defendant has been previously convict ed of a crime under

. . . section
18

- 7906, Idaho Code,

. . . within seven (7) years . . . .‖ To have committed felony stalking under this subsection, Defendant would have to have engaged in a course of conduct that violated
section 18

- 7906 and he would ha ve to have been previously convicted of misdemeanor stalking by earlier engaging in a course of conduct that violated section 18

- 7906. There would have to be two separate courses of conduct, each of which violates that section. Otherwise, he could not
ha ve engaged in a course of conduct that violated section 18

- 7906 and previously been convicted of misdemeanor stalking

. As stated above, the inference from the record and arguments is that Defendant did not engage in a course of conduct that violated secti on 18

- 7906 after he was convicted of misdemeanor stalking. If that is correct, Defendant did not commit felony stalking
under this subsection. In summary, the district court did not err in failing to dismiss the felony stalking charge for lack of probabl e cause. By waiving his preliminary hearing, Defendant agreed that there was sufficient evidence to support a finding that there was probable cause to believe he committed that crime. The district court did not err in failing to dismiss the felony stalki ng charge on the ground that this prosecution violated the Double Jeopardy Clause. If Idaho Code § 18

- 7905(1)(a), (b), and (e) are correctly construed, there can be no double jeopardy violation. The
district court did err in its interpretation of Idaho C ode § 18

- 7905(1). As the felony stalking statute is written, acts necessary to prove a violation of section 18

- 7906 as an element of felony12

stalking must necessarily be different from the acts upon which Defendant‘s prior conviction for
misdemeanor stalki ng was based

. We will therefore vacate the judgment and remand this case for further proceedings that are consistent with this opinion.

I II . CONCLUSION We vacate the judgment and remand this case for further proceedings that are consistent with this op inion.

Justices BURDICK, J. JONES, W. JONES and HORTON CONCUR

.