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IN THE SUPREME COURT OF THE STATE OF IDAHO 

Docket No. 42758/42759

STATE OF IDAHO,

 Plaintiff-Respondent,

v.

CESAR A. SEPULVEDA,

 Defendant-Appellant.

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Boise, June 2016 Term

2016 Opinion No. 123

Filed: November 3, 2016

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada 

County. Hon. Jason D. Scott, District Judge. 

District court judgment of conviction and sentencing, affirmed.

Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Brian R. 

Dickson, State Appellate Public Defender argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. 

Theodore S. Tollefson, Deputy Attorney General argued. 

_________________________________

BURDICK, Justice

Cesar Antonio Sepulveda appeals from the Ada County District Court’s judgment after a 

jury found him guilty of felony intimidating a witness, misdemeanor domestic battery, injury to a 

child, and two counts of attempted violation of a no contact order. Sepulveda contends that his 

right to confront witnesses, his right to present a defense, and his right to be free from double 

jeopardy were violated and that his convictions should be vacated. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 27, 2013, officers responded to a 911 call placed by Connie Grainger. In 

the call, Grainger reported that she had heard a loud bang and yelling from Sepulveda’s 

apartment, which shares a wall with Grainger’s. When the officers arrived, they found a pipe and 

some methamphetamine in Sepulveda’s pants pocket. Sepulveda told the officers that the pipe 

and methamphetamine belonged to his girlfriend, L.M., and that she had attacked him after he 

confronted her about her drug use. L.M. told officers that she had confronted Sepulveda about 

feeding the children, that she and Sepulveda then got into an argument, and that during the 
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argument Sepulveda attempted to strangle her. Sepulveda was arrested and ultimately charged 

with attempted strangulation and misdemeanor injury to a child.

1 A no contact order was also 

entered prohibiting Sepulveda from contacting L.M.

While in custody, Sepulveda called L.M.’s sister and was recorded asking her to contact 

L.M. and tell L.M., among other things, not to appear in court. Sepulveda was also recorded 

contacting Lisa Cameron, a cellmate’s wife, and asking her to contact L.M. and tell L.M. that if

L.M. did not show up at the preliminary hearing the charges would be dropped. These calls 

resulted in Sepulveda being charged with felony intimidating a witness and two counts of 

attempted violations of a no contact order.

L.M. testified during a preliminary hearing that Sepulveda took her by the neck, got on 

top of her, and choked her with two hands. On cross-examination, L.M. was asked whether she 

had ever harmed herself and whether she had used methamphetamine a few days prior to the day 

of the incident. Both of these lines of questioning were objected to for relevance and the court 

sustained both objections. 

Several months after the December 27, 2013, incident but prior to trial, L.M. committed 

suicide by overdosing on methamphetamine and two other drugs for which she had prescriptions. 

As a result, the State filed a pretrial motion to admit L.M.’s preliminary hearing testimony at 

trial. Sepulveda objected, contending that he had not had an adequate opportunity to crossexamine L.M. during the preliminary hearing regarding issues that impacted her credibility, 

namely, her history of drug use and her history of self-abuse. The district court, finding that 

Sepulveda had an adequate opportunity to cross-examine L.M., granted the State’s motion. The 

State also moved to exclude any reference to the cause of L.M.’s death during the trial. 

Sepulveda objected, contending that the cause of death was relevant to his theory of defense. The 

State argued that L.M.’s suicide was irrelevant to the trial. Agreeing with the State, the district 

court granted the State’s motion.

The jury found Sepulveda guilty of domestic battery, injury to a child, intimidating, 

impeding, influencing, or preventing the attendance of a witness, and two counts of attempted 

violation of a no contact order. Sepulveda timely appeals.

 

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Sepulveda was originally also charged with possession of a controlled substance and possession of drug 

paraphernalia, but these charges were ultimately dropped.
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II. STANDARD OF REVIEW

Sepulveda’s claims are constitutionally based. “The requirements of the Idaho and U.S. 

Constitutions are questions of law, over which this Court has free review.” State v. Draper, 151 

Idaho 576, 598, 261 P.3d 853, 875 (2011).

III. ANALYSIS

Sepulveda contends his constitutional rights to confront witnesses against him, to present 

a defense, and to be free from double jeopardy were violated in the lower court proceedings. We

address each claim in turn. 

A. Sepulveda’s right to confront the witnesses against him was not violated.

The Sixth Amendment to the United States Constitution provides that a criminal 

defendant has “the right . . . to be confronted with the witnesses against him.” U.S. CONST. 

amend. VI. “ ‘This provision bars admission of testimonial statements of a witness who did not 

appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity 

for cross-examination.’ ” State v. Richardson, 156 Idaho 524, 528, 328 P.3d 504, 508 (2014) 

(quoting Davis v. Washington, 547 U.S. 813, 821 (2006)). Testimonial statements include “at a 

minimum . . . prior testimony at a preliminary hearing, before a grand jury, or at a former 

trial . . . .” Crawford v. Washington, 541 U.S. 36, 68 (2004). The Confrontation Clause “is made 

obligatory on the States by the Fourteenth Amendment.” Pointer v. Texas, 380 U.S. 400, 403 

(1965).

There is no dispute that L.M.’s statements at the preliminary hearing were testimonial or 

that L.M. was unavailable to testify at the trial. As such, the only issue is whether Sepulveda had 

a prior adequate opportunity to cross-examine L.M.

In Richardson, we stated:

Crawford did not specifically address what constitutes an 

‘adequate’ opportunity for cross-examination, but the cases the 

[U.S. Supreme] Court cited, Pointer, Green, and Mancusi, do 

provide some guidance in assessing whether an adequate 

opportunity has been afforded. There are three indicators of an 

adequate opportunity for cross-examination based on U.S. 

Supreme Court case law. The first indication of an adequate 

opportunity to cross-examine is representation by counsel. A 

second indication is no significant limitation in any way in the 

scope or nature of counsel’s cross-examination. The third 

indication is counsel’s failure to show any new and significantly 

material line of cross-examination that was not at least touched 
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upon in the preliminary hearing. These three factors are illustrative 

and not meant to be exhaustive or exclusive in the determination of 

the adequacy of cross-examination under the Confrontation Clause.

Whether a party had an adequate opportunity to cross-examine is 

determined on a case-by-case basis.

Richardson, 156 Idaho at 528–29, 328 P.3d at 508–09 (alteration in original) (citations and 

internal quotation marks omitted). Additionally, we have stated that “ ‘the exposure of a witness’ 

motivation in testifying is a proper and important function of the constitutionally protected right 

of cross-examination.’ ” State v. White, 97 Idaho 708, 713, 551 P.2d 1344, 1349 (1976) (quoting 

Davis v. Alaska, 415 U.S. 308, 316 (1974)).

Sepulveda contends that his right to confront the witnesses against him was violated 

because he was limited in his cross-examination of L.M. during the preliminary hearing and was 

“not afforded the opportunity to question L.M. about potential sources of bias or motives to 

testify falsely.” Specifically, Sepulveda argues that he was restricted in his cross-examination of 

L.M. when the trial court sustained a relevance objection to his question regarding whether L.M. 

had used methamphetamine a few days prior to the day of the alleged incident.

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Sepulveda 

contends that by sustaining the objection the court prevented him from cross-examining L.M. 

about her methamphetamine use and cut off his ability to question L.M. about “this source of 

bias and motive to testify falsely against him.” The full exchange was as follows:

Q: Now, you said that you hadn’t used any methamphetamine that 

day. Had you a few days prior to that?

A: Yes.

Prosecution: Objection, relevance.

Defense: I think it is relevant, Judge, as to her state of mind.

The Court: A few days prior?

Defense: Yes.

The Court: I will sustain the objection.

Sepulveda asserts that his case is similar to White. In that case, the defendant was charged 

with kidnapping. On cross-examination of the victim, defense counsel sought to explore the 

relationship of the victim with her parents to demonstrate that the relationship was strained and 

that because of that strain she was motivated to lie about being kidnapped by the defendant. 

White, 97 Idaho at 712–13, 551 P.2d at 1348–49. However, the trial judge, on his own motion,

cut short the cross-examination before defense counsel could fully explore the extent of the strain 

 

2 On appeal, Sepulveda does not challenge the trial court’s ruling regarding the line of questioning regarding L.M.’s 

history of self-harm.
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or the effect the strain of the relationship would have had on the victim’s motivation to lie. Id. at 

713 & n.6, 551 P.2d at 1349 & n.6. We held that it was error for the trial judge to cut off “crossexamination on an important credibility issue before the issue could be properly developed.” Id. 

at 713, 551 P.2d at 1349.

Here, defense counsel asked L.M. if she used methamphetamine “a few days prior” to 

December 27, 2013. When the prosecution objected on relevance grounds, defense counsel 

responded that it was relevant “as to her state of mind.” The court then asked, “A few days 

prior?” to which defense counsel responded, “Yes.” Based on this exchange, it is clear that the 

defense’s question was attempting to establish L.M.’s state of mind a few days prior to the 

incident, not to call into question L.M.’s credibility or motivation to fabricate the assault on the 

day of the incident. Unlike in White, the court did not cut short the line of questioning sua 

sponte. Rather, the line of questioning was objected to by the prosecution and the defense was 

given an opportunity to respond as to why the question was relevant. Defense counsel’s full 

response was that the question was relevant to show L.M.’s state of mind a few days prior to the 

incident. Without offering more, it is difficult to conceive how the victim’s state of mind a few 

days prior to the alleged battery could possibly be relevant to determining whether it was more or 

less probable that Sepulveda was guilty of domestic battery. Moreover, there is nothing in the 

exchange or the court’s sustaining of the relevance objection that prevented defense counsel 

from exploring L.M.’s credibility, motivation to testify, or whether L.M. had used drugs during 

the incidents that form the basis of Sepulveda’s criminal charges, nor did defense counsel 

attempt to make any such inquiry. Defense counsel was only prevented from asking about L.M’s 

prior drug use in relation to her state of mind a few days prior to the day in question. Defense 

counsel was still free to question L.M. about her drug use on the day of the incident and to seek 

other testimony related to L.M.’s drug use for credibility or motive purposes. 

Sepulveda also asserts that he would have confronted L.M. at trial with a new and 

significantly material line of cross-examination. He claims that “there was evidence that L.M. 

had methamphetamine and other unprescribed drugs in her system on the day of the incident.”

Sepulveda claims this evidence would refute L.M.’s denial regarding methamphetamine use on 

the day of the incident and go to her credibility as a witness. In support of this assertion,

Sepulveda points to testimony given by defense counsel at trial: “Well, Your Honor, there’s 

other evidence that she, at the time of this incident, had methamphetamine in her system and 
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other drugs that weren’t prescribed to her.” Although it is true that defense counsel references 

evidence of drugs being in L.M.’s system “on the day of the incident,” this statement was made 

in the context of a discussion about how to handle the fact that L.M. had committed suicide by 

drug overdose. It is clear in this exchange that the “day of the incident” is June 9, 2014, the day 

of L.M.’s suicide, not December 27, 2013, the day of the argument and physical altercation 

between Sepulveda and L.M. This is not evidence that would support a new and significantly 

material line of cross-examination. L.M. already testified in the preliminary hearing that she had 

not used methamphetamine on December 27, 2013, and evidence that she used 

methamphetamine to commit suicide months later does not dispute this.

Sepulveda further argues that had he been allowed to continue with the line of 

questioning about L.M.’s drug use that he would have been able to impeach her testimony on 

direct examination that “she also denied the use of methamphetamines or any other types of 

illegal substances.” However, L.M. only denied using methamphetamine on the day of the 

incident. Indeed, when asked about using methamphetamine a few days prior she responded 

“Yes” before the prosecution objected. There is no evidence to suggest that Sepulveda would 

have been able to produce any evidence to dispute L.M.’s testimony that she did not use 

methamphetamine on the day of the incident. Sepulveda’s statement that he would have been 

able to impeach her testimony about her drug use is purely speculation and conjecture. State v. 

Ranstrom, 94 Idaho 348, 352, 487 P.2d 942, 946 (1971) (“Appellant points out no facts to 

support this contention and it is based on nothing but conjecture and speculation. Therefore this 

court will not consider this issue.”).

Ultimately, while Sepulveda may have preferred to have questioned L.M. in the 

preliminary hearing about her drug use on the day of the incident or in relation to her motivation 

to lie and her credibility rather than about her drug use in relation to her state of mind “a few 

days prior,” he did not. Richardson, 156 Idaho at 529, 328 P.3d at 509 (“[Defendant] may have 

preferred to be more aggressive or thorough with his cross-examination at the preliminary 

hearing had he known that [the witness] would become unavailable, but the Confrontation 

Clause requires only an adequate opportunity for cross-examination of a witness, not a perfect 

one.”); see also Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (“Generally speaking, the 

Confrontation Clause guarantees an opportunity for effective cross-examination, not crossexamination that is effective in whatever way, and to whatever extent, the defense might wish.”).
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In summary, the trial court’s sustaining of the prosecution’s relevance objection to a 

question related to L.M.’s state of mind and drug use a “few days prior” did not limit Sepulveda 

from questioning L.M. about her drug use on the day of the incident or in relation to her 

credibility or motivation to lie. Furthermore, Sepulveda failed to produce any evidence that 

demonstrated that he would have presented a new and material line of examination at trial. Based 

on these reasons, we hold that Sepulveda’s Sixth Amendment right to confront the witnesses 

against him was not violated by the admission of L.M.’s preliminary hearing testimony at trial.

B. Sepulveda’s right to present a defense was not violated.

The right to present a defense is rooted in the Confrontation Clause of the Sixth 

Amendment, made applicable to the states through the Fourteenth Amendment, and includes the 

right to offer testimony of witnesses, to compel their attendance, and to present the defendant’s 

version of the facts. State v. Meister, 148 Idaho 236, 239, 220 P.3d 1055, 1058 (2009); see also, 

e.g., Washington v. Texas, 388 U.S. 14, 19 (1967). However, “ ‘[a] defendant has no right to 

present irrelevant evidence and even if evidence is relevant, it may be excluded in certain 

cases.’ ” Meister, 148 Idaho at 241, 220 P.3d at 1060 (quoting State v. Self, 139 Idaho 718, 722, 

85 P.3d 1117, 1121 (Ct. App. 2003)); see also, e.g., Delaware v.Van Arsdall, 475 U.S. 673, 679 

(1986); United States v. Torres, 937 F.2d 1469, 1473 (9th Cir. 1991). 

Sepulveda argues that his right to present a defense was violated because he was not 

allowed to present evidence to support his theory of defense. At trial, Sepulveda’s theory of 

defense was that he discovered methamphetamine and a pipe in the house and that when he 

confronted L.M. about the methamphetamine and pipe L.M. responded by assaulting him. 

Specifically, Sepulveda contends that his right to present a defense was violated when the 

magistrate court sustained the prosecution’s objection regarding the defense’s question about 

L.M.’s methamphetamine use a few days prior to the day of the incident and when the district 

court declined to allow the defense to introduce evidence that L.M.’s cause of death was an 

overdose on methamphetamine and two other drugs.

1. The question regarding L.M.’s drug use a “few days prior.”

As an initial argument, the State argues that because Sepulveda never requested the 

district court to decide whether the magistrate court had erred in sustaining the prosecution’s 

objection regarding the question regarding L.M.’s methamphetamine use a “few days prior,” he 

is barred from raising the issue on appeal. State v. Gertsch, 137 Idaho 387, 395, 49 P.3d 392, 400 
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(2002) (“ ‘The longstanding rule of this Court is that we will not consider issues that are 

presented for the first time on appeal.’ ” (quoting State v. Robbins, 123 Idaho 527, 529, 850 P.2d 

176, 178 (1993)).

Sepulveda asserts that his request for the district court to rule on the admissibility of 

L.M.’s preliminary hearing testimony is sufficient to serve as a request for the district judge to 

also rule on whether the magistrate court’s evidentiary rulings were correct. Sepulveda is 

incorrect.

The district court was asked to determine whether the preliminary transcript was

admissible pursuant to Idaho Code section 9-336 (now Idaho Code section 74-125) and Idaho 

Rule of Evidence 804(b)(1). Idaho Code section 9-336 provided:

Prior to admitting into evidence recorded testimony from a 

preliminary hearing, the court must find that the testimony offered 

is:

1. Offered as evidence of a material fact and that the 

testimony is more probative on the point for which it is offered 

than any other evidence which the proponent can procure through 

reasonable efforts; and

2. That the witness is, after diligent and good faith attempts 

to locate, unavailable for the hearing; and

3. That at the preliminary hearing, the party against whom 

the admission of the testimony is sought had an adequate 

opportunity to prepare and cross-examine the proffered testimony.

Ch. 51, § 2, 1989 Idaho Sess. Laws 63, 64. 

Rule 804(b)(1) excludes from the hearsay rule

[t]estimony given as a witness at another hearing of the 

same or a different proceeding, or in a deposition taken in 

compliance with law in the course of the same or another 

proceeding, if the party against whom the testimony is no offered, 

or, in a civil action or proceeding, a predecessor in interest, had an 

opportunity and similar motive to develop the testimony by direct, 

cross, or redirect examination.

Neither the statute nor the rule provides that the district court must consider the 

correctness of evidentiary rulings made during the preliminary hearing in deciding whether the

transcript of a witness’s testimony is admissible. Likewise, neither the statute nor the rule 

prevents making objections to specific testimony within the preliminary hearing transcript if the 

court rules that the transcript is admissible. 
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Sepulveda’s sole argument to the district court regarding the question about L.M.’s drug 

use a few days prior to the day of the events in question centered on whether Sepulveda had an 

adequate opportunity to cross-examine L.M. Defense counsel stated:

She also denied any use of methamphetamine or any other 

types of illegal substances. And there was an objection to that 

when asked if she had been using earlier in the week. Se we 

weren’t able to explore that further and perhaps develop more of a 

credibility issue.

There was no argument or assertion that the magistrate court’s action in sustaining the 

objection regarding L.M.’s use of drugs earlier in the week was in error. The assertion was that 

the sustaining of that objection somehow prevented the defense from further exploring L.M.’s 

use of methamphetamine or other types of illegal substances at other times.3The district court 

was not asked to decide, and it did not decide, whether the magistrate court erred in its 

evidentiary ruling regarding the question about L.M.’s drug use “a few days prior” to the 

incidents that form the basis of Sepulveda’s criminal charges. Therefore, we will not consider 

this issue on appeal. Gertsch, 137 Idaho at 395, 49 P.3d at 400.

2. L.M.’s cause of death.

Sepulveda argues that the cause of L.M.’s death, overdose on methamphetamine and two 

other prescribed drugs, was relevant because it “impacts the credibility of her testimony that she 

had not used methamphetamine.” However, as previously mentioned, L.M. only testified that she 

had not used methamphetamine on the day of the incident, she admitted to using 

methamphetamine a few days prior to the incident. Thus, evidence that she used 

methamphetamine seven months later as part of a concoction of drugs to commit suicide is not 

relevant to her credibility as it does not prove that she used methamphetamine on the day of the 

incident and she did not testify that she had never used methamphetamine—indeed, as noted 

earlier, she admitted to using it when asked. Consequently, evidence of the cause of L.M.’s death 

would not have impeached L.M.’s testimony or supported any motivation she may have had to 

lie. The district court did not err when it ruled that the cause of L.M’s death was irrelevant.

Therefore, because L.M.’s cause of death was irrelevant, Sepulveda’s right to present a 

defense was not violated. Meister, 148 Idaho at 241, 220 P.3d at 1060 (“If [evidence] is not 

relevant, the defendant has no constitutional right to present it.”). 

 

3 This assertion is addressed earlier in Part A.
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C. Sepulveda was not subjected to double jeopardy under the Idaho Constitution.

Sepulveda claims that his convictions for intimidating a witness and for the two 

attempted violations of a no contact order violate the double jeopardy clause of the Idaho 

Constitution. Specifically, Sepulveda argues that the felony intimidating a witness charge is an

included offense of the attempted violations of a no contact order and is therefore “subsumed” 

into the attempted no contact order violations and should be vacated.

The double jeopardy clause of the Idaho Constitution states: “No person shall be twice 

put in jeopardy for the same offense.” IDAHO CONST. art. I, § 13. “This protection applies not 

only to multiple punishments, but also to multiple prosecutions for the same crimes.” State v. 

Manley, 142 Idaho 338, 343, 127 P.3d 954, 959 (2005). Thus, we have held that under the “Idaho 

double jeopardy clause[], ‘a defendant may not be convicted of both a greater and lesser included 

offense.’ ” State v. McKinney, 153 Idaho 837, 841, 291 P.3d 1036, 1040 (2012) (quoting State v. 

Pizzuto, 119 Idaho 742, 756, 810 P.2d 680, 694 (1991), overruled on other grounds by State v. 

Card, 121 Idaho 425, 825 P.2d 1081 (1991)). In Idaho, “[t]here are two theories under which a 

particular offense may be determined to be a lesser included offense of a charged offense.” State 

v. McIntosh, 160 Idaho 1, __, 368 P.3d 621, 624 (2016) (quoting State v. Sanchez-Castro, 157 

Idaho 647, 648, 339 P.3d 372, 373 (2014)); see also, e.g., State v. Flegel, 151 Idaho 525, 527, 

261 P.3d 519, 521 (2011); State v. Curtis, 130 Idaho 522, 524, 944 P.2d 119, 121 (1997). 

The first theory is the statutory theory. “ ‘Under this theory, one offense is not considered 

a lesser included of another unless it is necessarily so under the statutory definition of the 

crime.’ ” Sanchez-Castro, 157 Idaho at 648, 339 P.3d at 373 (quoting State v. Thompson, 101 

Idaho 430, 433, 614 P.2d 970, 973 (1980)). “We apply the Blockburger test, which originated in 

Blockburger v. United States, 284 U.S. 299, (1932), to determine whether an offense is a lesser 

included offense under the statutory theory.” Flegel, 151 Idaho at 527, 261 P.3d at 521. 

The second theory is the pleading theory. This theory arose out of our holding in State v. 

Anderson, wherein we held “that pursuant to I.C. § 19-2312, any offense, the commission of 

which is necessarily included in that charged in the indictment or information, is an included 

offense.” 82 Idaho 293, 303, 352 P.2d 972, 978 (1960). Thus, we have held on several occasions 

that under the pleading theory, a crime is considered an included offense “ ‘if it is alleged in the 

information [or indictment] as a means or element of the commission of the higher offense.’ ” 
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See, e.g., Sanchez-Castro, 157 Idaho at 648, 339 P.3d at 373 (quoting Flegel, 151 Idaho at 529, 

261 P.3d at 523); Thompson, 101 Idaho at 434, 614 P.2d at 974.

Sepulveda only raises a claim under the double jeopardy clause of the Idaho Constitution 

and the pleading theory.

4 Under the pleading theory, Sepulveda argues that “the intimidating 

charge is the means by which each attempt to violate the no contact order charges were 

committed,” and thus “the intimidating a witness charge violated the Idaho Constitution’s 

protection against double jeopardy.”

“Under Idaho’s pleading theory, whether one crime is a lesser included offense of another 

crime can be determined from the face of the record simply by reading the information charging 

each crime.” McKinney, 153 Idaho at 841, 291 P.3d at 1040. Here, the face of the record shows

that, as pled, felony intimidating a witness is not an included offense of the attempted violations

of a no contact order.

The information, as amended, states:

COUNT I

That the Defendant CESAR ANTONIO SEPULVEDA, on or 

between the 29th day of December, 2013 and the 14th day of

January, 2014, in the County of Ada, State of Idaho, did willfully 

intimidate, influence, impede, deter, obstruct, or prevent, and or 

did attempt to intimidate, influence, impede, deter, obstruct, or 

prevent a witness, potential witness, and/or person the Defendant

believes to be a witness, from testifying freely, fully and truthfully

in a criminal proceeding, to-wit: Ada County case number CR-FE2013-0018132, in which the Defendant was charged with the 

crimes of Attempted Strangulation and Possession of a Controlled 

Substance, by asking another person and/or persons to speak with 

[L.M.] and ask her to tell the court that she injured herself, that the 

allegations of attempted strangulation are false, and/or that her 

medications are to blame for what happened, and/or to direct her

not to appear for court.

COUNT II

That the Defendant CESAR ANTONIO SEPULVEDA, on or

about the 30th day of December, 2013, in the County of Ada, State 

of Idaho, attempted to have contact with [L.M] in violation of a no 

 

4 We do not provide analysis under the statutory theory or the United States Constitution because Sepulveda does 

not raise those issues as grounds for his double jeopardy claim. State v. Hoisington, 104 Idaho 153, 159, 657 P.2d 

17, 23 (1983) (“Since neither party has raised or argued this issue in their briefs, we do not review the issue.”).

However, we briefly note that a double jeopardy claim under the statutory theory or the United States Constitution 

would fail the Blockburger test. Compare I.C. § 18-920 (listing the statutory elements for “Violation of no contact 

order”), with I.C. § 18-2604 (providing the statutory elements for “Intimidating a witness”).
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contact order issued in Ada County case number CR-FE-2013-

0018132, where the Defendant was charged with the offense of 

Attempted Strangulation, by calling [L.M.’s] sister and asking her 

to pass certain messages on to [L.M.].

COUNT III

That the Defendant CESAR ANTONIO SEPULVEDA, on or 

about the 2nd day of January, 2014, in the County of Ada, State of 

Idaho, attempted to have contact with [L.M.] in violation of a no 

contact order issued in Ada County case number CR-FE-2013-

0018132, where the Defendant was charged with the offense of 

Attempted Strangulation, by calling a Lisa Cameron and asking her 

to contact L.M. on his behalf.

From the face of the information, not all the elements of intimidating a witness are pled 

in the counts charging the attempted violations of the no contact order. Count I, which pleads the 

intimidating a witness charge, states that Sepulveda “did willfully intimidate, influence, impede, 

deter, obstruct, or prevent, and or did attempt to intimidate, influence, impede, deter, obstruct, or 

prevent a witness . . . from testifying freely, fully and truthfully in a criminal proceeding . . . by 

asking another person and/or persons to speak with [L.M.] and ask her to tell the court that she 

injured herself, that the allegations of attempted strangulation are false, and/or that her 

medications are to blame for what happened, and/or to direct her not to appear for court.” In 

Count II, the means by which Sepulveda committed attempted violation of a no contact order 

was by contacting “[L.M.’s] sister and asking her to pass certain messages on to [L.M.].” In 

Count III, the means by which Sepulveda committed attempted violation of a no contact order 

was by contacting “Lisa Cameron and asking her to contact L.M. on his behalf.” Neither Count 

II nor Count III makes reference to whether L.M. was a witness or whether Sepulveda “did . . . or 

did attempt to intimidate, influence, impede, deter, obstruct, or prevent [L.M.] . . . from 

testifying.” Thus, felony intimidating a witness was not pled as a means or element of the 

commission of either of the attempted violations of a no contact order. 

Accordingly, Sepulveda’s argument fails, and we hold that Sepulveda’s conviction for 

felony intimidating a witness is not an included offense of his convictions for the two attempted 

violations of a no contact order and does not violate the double jeopardy clause of the Idaho 

Constitution.

D. Whether the doctrine of cumulative error requires reversal.
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“‘Under the doctrine of cumulative error, a series of errors, harmless in and of 

themselves, may in the aggregate show the absence of a fair trial. However, a necessary predicate 

to the application of the doctrine is a finding of more than one error.’ ” State v. Parker, 157

Idaho 132, 149, 334 P.3d 806, 823 (2014) (quoting State v. Perry, 150 Idaho 209, 230, 245 P.3d

961, 982 (2010)). We find no error, and thus the doctrine of cumulative error does not apply. 

IV. CONCLUSION

Because Sepulveda’s right to confront witnesses, right to present a defense, and right to 

be free from double jeopardy were not violated, the judgment of the district court is affirmed.

Chief Justice J. JONES and Justices EISMANN, W. JONES and HORTON, CONCUR.