1 IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 34639
STATE OF IDAHO,

Plaintiff

- Respondent,

v.

TO REY MICHAEL ADAMCIK,

Defendant

- Appellant. ) ) ) ) ) ) ) ) ) ) Pocatello, September 2010
2010 Opinion No. 121

Filed: November 29, 2011
Stephen W. Kenyon, Clerk

Appeal from the District Court of the Sixth Judicia l District, State of Idaho, Bannock County . Honorable Peter D. McDermott, District Judge.
Judgment of conviction for first

- degree murder and conspiracy to commit first

degree murder is affirmed.
Nevin, Benjamin, McKay & Bartlett, Boise, for appellant. D ennis A. Benjamin argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. John C. McKinney, Deputy Attorney General argued.

__________________________________ J. JONES, Justice.
Torey Michael Adamcik (Adamcik) appeals from his convict ions for first

- degree murder and conspiracy to commit first

- degree murder. Adamcik raises the following issues on appeal: (1) whether there was constitutionally sufficient evidence for a jury to find beyond a reasonable
doubt that Adamcik stabbed the vict im, Cassie Jo Stoddart (Stoddart ) , causing her death; (2) whether the district court erred in denying Adamcik’s motion to suppress statements he made while in custody; (3) whether the jury was properly instructed; (4) whether the State committed
fundamenta l error in its closing argument; (5) whether the cumulative error doctrine necessitates a reversal; (6) whether the district court abused its discretion in sentencing Adamcik; and (7) whether the sentences imposed are unreasonable, or cruel and unusual, du e to Adamcik’s status as a minor at the time the crimes occurred. Adamcik also appeals the district court’s denial of his post

- trial motion for reduction in sentence pursu ant to Idaho Criminal Rule 35. We affirm

.2 I. FACTUAL AND PROCEDURAL BACKGROUND
On June 8, 2007, a jury convicted Adamcik for the first

- degree murder of Cassie Jo
Stoddart and for entering into a conspiracy with his co

- defendant Brian Draper (Draper) to
commit first

- degree murder. Subsequently, Adamcik was sentenced to indeterminate life with thirty years fixed for conspiracy to commit first

- degree murder and fixed life for first

- degree
murder. On September 22, 2006, Stoddart was spending the night at her cousin’s house, the Whispering Cliffs residence, performing house

- sitting duties. Ma tt Beckham (Beckham),
Stoddart’s boyfriend
, stated that he and Stoddart had invited Adamcik to the Whispering Cliffs residence that evening to “hang out.” Adamcik and Draper arrived at the Whispering Cliffs residence at approximately 6:30 or 7:00 PM . Afte r spending approximately two hours at the Whispering Cliffs residence, Draper informed Stoddart and Beckham that he needed to leave and shortly thereafter Draper and Adamcik departed. Approximately fifteen minutes after Adamcik and Draper departed
, the po wer at the Whispering Cliffs residence went out

. Beckham called his mother to ask for permi ssion to stay the night, but such permission was denied. After speaking with his mother, Beckham phoned
Adamcik to inform him that Beckham would be going home for th e night. Beckham later said that during their conversation Adamcik spoke in a whisper and claimed to be at a movie. Beckham and Adamcik spent the fo llowing day together. Beckham tried repeatedly to call Stoddart throughout the day but was unable to get an answer

. On September 24, 2006, it was discovered that Stoddart had been killed at the Whispering Cliffs residence. Police officer Hatch responded to the scene and noted large amounts of blood on the victim’s body, as well as dee p lacerations and stab woun ds. S hortly after responding, police and paramedics confirmed that Stoddart was dead. Detectives conducting the preliminary investigation determined that Adamcik and Draper had been among the last people to see Stoddart alive.
Detectives Thomas and Ganske went to the Adamc ik home and interviewed Adamcik on September 24, 2006. Adamcik’s father
, Sean Adamcik (Sean) , was present. This interview was
the first of two interviews that detectives Thomas and Ganske conducted with Adamcik. During
the course of the fi rst interview
, Adamcik informed the detectives that he and Draper had gone to3 the Whispering Cliffs residence at approximately 8:30 PM on September 22, 2006, for a party.
Adamcik stated that when it became apparent that a party was not going to take place
, he and Draper decided to go and see a movie in Pocatello. When the detectives questioned Adamcik regarding the movie he had reportedly seen
, Adamcik was unable to describe what the movie had
been about. Adamcik told detectives that following the movie he and Draper had gone to spend the night at Adamcik’s home

. On September 27, 2006, after Adamcik’s first interview
, but before the second, Draper led law enforcement agents to a stash of evidence buried in the Black Rock Canyon area (BRC site) . The evidenc e uncovered by law enforcement at the BRC site included:
1. Two dagger

- style kniv e s with sheath s

. 2. A silver

- and

- black

- handled knife with a smooth and non

- serrated blade

. 3. A folding knife with a silver blade and black handle , which is similar to a survival knife . T he portion of the blade nearest to the hilt is serrated.

4. A homemade Sony videotape ( BRC t ape)

. 5. A box of stick matches.
6. A melted brown bottle of hydrogen peroxide.
7. Partially burned notebook paper.
8. A partially melted multi

- colored mask.
9. A red and whit e mask.
10. A pair of black boots.
11. A single black glove.
12. A pair of black “Puma ” gloves.
13. A pair of blue latex gloves.
14. A pair of fing erless black “Ath letic Works ” gloves.
15. A black “ Calvin Klein ” dress shirt.
16. A black “Hagger” shirt.
Adamcik conceded that his hand writing was present on the notebook paper found along
with the other evidence at the BRC site. The BRC t ape contained foot age of Adamcik and Draper planning Stoddart’s murder, and later reacting to having killed Stoddart . The BRC tape skips around and is n ot recorded in chronological order. T he following relevant portions of the4 BRC tape have been rearranged according to the time and date stamps that appear on the BRC tape. 1

1. September 21, 2006
, at 8:05:23 PM [ Adamcik and Draper are in a car, Adamcik is dri ving and Draper is filming from the passenger seat] Draper: We’re going for a high death count Adamcik : Plus, we’re not going to get caught Brian
, if we’re going for guns, we’re just gonna end it. We’re just gonna grab the guns and g et outta there and k ill everybody and leave

. Draper : We’re going to make history. . . . We’re go nna make history. Adamcik : For a ll you FBI agents watching this

— Draper : (laughing) Adamcik : Uh . . . you weren’t quick enough. (laughing) Draper : You weren’t quick enough, an d you weren’t s

- s

- smart enough. And we’re going over to [Jane Doe 1’s] house, we

- we

- we’re going to snoop around over there and try to see if she’s home alone or not, and if she’s home alone, SPLAT! . . . She dead. Adamcik : Don’t put your humor into this Brian

. Draper : Uh, I’m not putting any humor into it. . . . Yep, people will die, and m

- m

- memories will fade. Adamcik : Memories will fade. . . . I, h mm, I wonder what movie you got that from Brian ? Draper : My self! Adamcik : (laughing) Draper : That was from myself

. Adamcik : No wonder it was so lame. Draper :

— kay, we’re on our way, and I’m gonna, I’ll let you stay tuned, we’re almost there

.
2. September 21, 2006
, at 8:08:12 PM [ Adamcik and Draper are in a car, Draper is filming A damcik with the camera ligh t on] Draper : We’re at [Jane Doe 1’s] house. It’s clear out there in the pasture. We’ve already snooped around her house a couple times, Uh, and s h

- s h

- she’s not at home so we’re gonna go to that church over there and we’re gonna call a girl and a guy nam ed Cassie and Matt. They’re our

- our friends but we have to make sacrifices. So um I feel tonight i

- i

- it is th e night and I feel really weird . . . and stuff. I feel like I want to kill somebody. Uh, I know that’s not normal but what the hell. Adamcik : I feel we need to break away from normal life. Draper : How bright is this light? [ Draper has turned the cam era light directly onto Adamcik] Adamcik : Because . . . let’s put it this way . . . parents, along with their parents, alon g with their parents, and so on

— Draper : Uh

- huh Adamcik :

— taught them about God, Jesus
, the whole bullshit

— Draper : (laughing) Adamcik :

— line. I’m sure you guys believe in God as well. I realized when I was in seventh grade . . . along, you don’t believe in Santa Claus or

—

1 Where the names of uninvolved th ird

- parties are used by Draper and Adamcik these have been altered to protect the identity of these individuals. The entire video has not been transcribed here.5 Draper : (laughing) Adamcik :

— vampires, or werewolves, they’re used to metaphor, not let

— they teac h their kids back in the 1800s, I learned this in English class, about telling their kids that they can’t go out side or a vampire will get you

— just to make the ir kids stay and do what they want to do. God is basica lly

— Draper : That’s what God’s for right? Adamcik :

— the same way

— Draper : Yep. Adamcik :

— tryin’ to g et people to do good, or else “so

- called” [air quoting] you go to hell. Draper : And we’re obviously going to hell if it’s real, but who gives a shit? Adamcik : And why would you say it’s real? Draper : [talking over Adamcik] Yeah, but it’s not real. It’s not real, cuz it’s so blatantly obvious th at it’s not real, but (laughing) Adamcik : People believe it because their parents teach them, and so it’s so hard for them to let go of it because they’ve been taught their whole life. Draper : Yeah, I know. Adamcik : But, fuckin

— Draper : What? Adamcik :

— the point I’m makin’ is . . . we are also taught that thi ngs like killing people and other things is wrong. The only thing that is wrong about is because it’s breaking the law and the law is only wrong (mumbling
, searching for words)

— Draper : Natural selection, dude. Natural selection, that’s all I’ve gotta s ay. Adamcik : There should be no law against killing people. I know it’s a wrong thing, but . . . Draper : Natural selection

— Adamcik :

— Hell, hell, you restrict somebody from it, they’re just gonna want it more. Draper : Exactly. Goodbye camera.

3. Septemb er 21, 2006 , at 8:15:39 PM [ Adamcik and Draper are in a car, Adamcik is driving and Draper is filming from the passenger seat] Draper :

— home. My friend’ s too pussy to go investigate

— turn here Adamcik : Too smart

— Draper : Why aren’t you turning there dude ? Adamcik : Cuz it’s faster this way Draper : Now we’re going to go over to Cassie and Matt’s house. If they’re home alone, we’re gonna... Adamcik : It’s Cassie’s house. Matt i s there. Draper : Matt i s there. Sorry. We’re gonna ga

— we’re gonna knock on t he door. We’ll see who is there. We’ll, we’ll see, we’ll see

- see if their parents are home or not. If they’re home alone we will leave our way and then we will come back in about ten minutes. We’ll sneak in through the door be cause chances are they’re probably in Cassie’s room. S

- s

- s

- s o we will sneak in the front door, we’ll make a noise outside. Adamcik : And Matt will come out to investigate. Draper : We’ll kill him. And we’ll scare the shit out of Cassie

. . . okay? Adamcik : Sounds like fun. Dra per : Well stay tuned.6 4. September 21, 2006
, at 8:36:46 PM [ Adamcik and Draper are in a car, Adamcik is driving and Draper is filming from the passenger seat] Draper : We found our victim and sad as it may be she’s our friend but you know what? We all hav e to make sacrifices. Our first victim is going to be Cassie Stoddart and her friends . . . Adamcik : [directed at passing car] God, turn your brights off asshole! Draper : We’ll let you . . . (laughs) w e’ll find out if she has friends over, if she’s goin g to be alone in a big dark hous e out i n the middle of nowhere (laughs) . How perfect can you get? I, I mean like holy shit dude. Adamcik : I’m horny just thinking about it. Draper : He ll yeah. So we’re gonna fuckin’ kill her and her friends and we’re g onna keep moving on. I heard some news about [Jane Doe 2], s he’s gonna be home alone from six to seven so we might kill her and drive over to Cassie’s thing and scare the shit out of them and kill them one by fucking one. Hell yeah. Adamcik : Why one by one? Why can’t it be a slaughterhouse? Draper : Two by two and three by three. Cause we’ve got to keep it classy. Adamcik : Keep it classy. Draper : So yeah. It’s going to be extra fun. Adamcik : You’re evil (laughs)

. Draper : Yes, I am. So are you du de. Evil. Evil. Adamcik : No. Evil is an expression of God. That was another test you failed. Draper : Evil is not an expression of God. Adamcik : Yes, it is. Draper : That is bullshit and you know it. Adamcik : Evil of origin is a follower of fucki ng Satan

. Draper : There is no Satan. Adamcik : Is Satan real? Then shut up. Draper : Then how are we supposed to express ourselves? Adamcik : Good and Bad. Draper : We’re, we’re bad. Adamcik : We are bad. Draper : That sounds so shitty. Adamcik : We’r e evil. That sounds even shittier. Draper : Hey, we’re not, okay. Then we are sick psychopaths who get their pleasure of f killing other people. Adamcik : That sounds good baby. Draper : We’re gonna go down in history. We’re gonna be j ust like Scream ex cept real life terms. Adamcik : That sounds good baby. Draper : We’re gonna be murderers. Like, let’s see, Ted Bundy, like the Hillside Strangler. Adamcik : No. Draper : The Zodiac Killer. Adamcik : Those people were more amateurs comp ared to what we are going to be, we’re gonna be more of higher sources of Ed gl . . . Draper : Gein Adamcik : Gein Draper : (laughs) Well let’s say we’re that sick and that twisted

—7 Adamcik : Oh, you know what Ed Gein’s words were? Draper : What? Adamcik : He saw a girl walk in’ down the street, right? Draper : Yeah. Adamcik : Two questions came to his head. Hmm, I could take her ou t and have a nice time with her

— Draper :

— and then kill her? Skin her alive? Adamcik :

— charm the pants off her. Or
, I wonder what her head would l ook like on a stick? (laughs) Draper : (laughs) Holy shit! Adamcik : It’s creepy huh? Draper : Kick ass. Adamcik & Draper : (laughing) Draper : Murder is power, murder is freedom, goodbye. Adamcik : Umm

—
5. September 22, 2006
, at 12:10:58 PM [ Adamcik and Dra per are sitting at a table with the camera facing them ] Draper : Alright, cool. Adamcik : [ looking down and writing in a notebook] I was planning to kill him. Draper : September 22, 2006, we’re skipping our fourth hour class. We’re writing our plan right now for tonight. It’s gonna be cool. Adamcik : We? Torey and Brian

. . . [writing] . . . we’re making our death list right now, for when, for actually tonight . . . Draper : (whispering) she’s watching us . . . Adamcik : (unintelligible) Draper : She’ s still watching us . . . Adamcik : (mumbling, unintelligible) Draper : [loudly] Number 2 is what? [ long gap where Adamcik and Draper are both concerned a teacher is going to see them, are whispering various things related to this and trying to make themse lves less visible] Adamcik : [writing again] Then . . . (unintelligible) Draper : Yeah, if you’re watching this we’re probably deceased

. . . Draper : Hopefully this will go smoothly and we can get our first kill done and then keep going. Adamcik : For y ou future serial killers watching this tape Adamcik & Draper : (laughing) Adamcik : I don’t know what to say. Draper : It

- It’s

— Adamcik :

— good luck with that. Draper : Good luck. Adamcik : Hopefully you don’t have like 8 or 9 failures like we have. Draper : Yeah, we’ve probably tried maybe 10 times, but they’ ve never been home alone

so

— Adamcik : Or when they have, their parents show up.8 Draper : As long as you’re patient you know, and we were patient and now we’re getting paid off, cuz our victim’s home alo ne, so we got er, our plan all worked out now. . . . I’m sorry. I’m sorry Cassie’s family , but she had to be the one. We have to stick with the plan

. . . and she’s perf ect, so she’s gonna die (laughs)

. . .
6. September 22, 2006
, at 9:53:20 PM [ It is dar k and Draper an d Adamc ik are sitting in a car.] Draper : We’re here in his car. The time is 9 :50, September 22nd, 2006. Um . . .

u nfortunately we have the grueling task of killing our two friends and they are right in

— in that house just down the street. Ad amcik : We just talked to them . We were there for an hour, b ut

. . . Draper : We checked out the whole house. We know there’s lots of doors. There, there’s lots of places to hide. Um, I unlocked the back doors. It’s all unlocked. Now we just got to
w ait and um

. . . yep, we’re, we’re really nervous right now but, you know, we’re ready. Adamcik : We’re listening to the greatest rock band ever. Draper : We’ve waited for this for a long time. Adamcik : Pink Floyd. Before we commit the ultimate crime of murder. Draper : We’ve waited for this for a long time. Adamcik : A long time. Draper : We

— well stay tuned.

7. September 22, 2006
, at 11:31:56 PM [ Adamcik a nd Draper are in a car driving.] Draper :

— just killed Cassie ! We just left her house. This is not a fucking joke. Adamcik : I’m shaking. Draper : I stabbed her in the throat, and I saw her lifeless body. It just disappeared. Dude, I just killed Cassie! Adamcik : Oh my God! Draper : Oh , oh fuck. That felt like it wasn’t even real. I mean it went by so fast. Adamcik : Shut the fuck up. We gotta get our act straight. Draper : It’s okay. Okay? We

— we’ll just buy movie tickets now. Adamcik : Okay Draper : (Unintelligible) Adamcik : No. Draper : Okay. Bye. On September 27, 2006, after the B RC site evidence was found, detectives Ganske and
Thomas conducted a second interview with Adamcik at the Pocatello Police D epartment in the presence of Adamcik’s parents . Detective Ganske read Adamcik his Miranda 2 rights at the beginning of the interv iew an d Adamcik signed a waiver

- of

- rights form. During the course of the
interview
, Adamcik informed detectives Ganske and Thomas that he and Draper had arrived at the Whispering Cliffs residence at 8:00 or 8:30, got a tour of the home, watched a portion of the
film Kill Bill Vol. 2 , departed from the Whispering Cliffs residence at approximately 10:00 PM ,

2 Miranda v. Arizona , 384 U.S. 436 (1966).9 and bega n attempting to break into cars. Adamcik stated that during the course of their attempted burglaries he made multiple calls to Beckham and during the fi nal call Beckham informed Adamcik that his mother was coming to get him from the Whispering Cliffs residence. Adamcik stated that he and Draper returned to Adamcik’s house at around 11:30 PM and did not leave for the remainder of the night. However, whe n Ganske informed Adamcik that witnesses had seen him at the convenience store, Common Cents, Adamcik stated that he and Draper had gone to the store so that Draper could buy matches for Draper’s cigarettes. Adamcik eventually admitted that he and Draper h ad gone to Black Rock Canyon. At the close of
Adamcik’s second interview
, the detectives informed Adamcik of the evidence that they had
discovered at the BRC site and pressured Adamcik to tell the truth. Adamcik responded by asking “C an I talk to an attorn ey?” The detectives stopped questioning Adamcik immediately, and exited the room, allo wing Adamcik and his father
, Sean , to converse in private in a different

room . Following this private meeting
, Adamcik, Sean and the detectives reconvened in the
intervie w room where detectives proceeded to tell Adamcik that he was going to be arrested and
informed Adamcik of the evidence they had gathered . In response to intervening questions from Sean, Adamcik made both verbal and nonverbal re plies

. At trial, the jury h eard extensive forensic testimony documenting and analyzing Stoddart’s wounds. The medical examiner, Dr. Steve Skoumal, performed the autopsy on Stoddart on September 25, 2006. Dr. Skoumal determined that the cause of Stoddart’s death was
stab wounds to t he trunk. In all, Dr. Skoumal documented thirty knife

- related wounds on Stoddart’s body, twelve of which were potentially fatal. The State also had forensic pathologist
Dr. Charles Garrison examine Stoddart’s body. Dr. Garrison testified “I t’s my opinion that there were at least two knives used, one of which was a non

- serrated blade, and one of which was a serrated blade.” In general, the majority of the potentially fatal wounds that Dr. Skoumal listed were inflicted with the serrated blade, however, wound number 1, which struck the right

ve ntricle of Stoddart’s heart, was inf licted by a non

- serrated blade

— consistent with Dr.
Garrison ’s testimony

— and was potentially fatal. On June 8, 2007, t he jury found Adamcik guilty of both c onspiracy to commit first

de gree murder and first

- degree murder. On September 26, 2007, Adamcik filed his notice of appeal with this Court.10 II. ISSUES ON APPEAL
1. Whether sufficient evidence was submitted to support the jury’s verdict that Adamcik was guilty of first

- degree mu rder be yond a reasonable doubt?
2. Whether Adamcik’s Fifth and Sixth Amendment rights were violated by the district court’s denial of Adamcik’s motion to suppress statements he made to detectives after Adamcik’s parents purportedly invoked Adamcik’s right to counsel ?
3. Whether the district court erred by giving Jury Instruction number twelve , providing that Adamcik could be found guilty of first

- degree murder if he “engaged in conduct which caused the death” o f Stoddart?
4. Whether the district court erred in failing to p rovide the jury with a unanimity instruction requiring the jury to find that Adamcik committed the same specific a ct that caused Stoddart’s death?
5. Whether the jury instruction regarding malice was a misstatement of the law which lowe red the State’s burden of proof?
6. Whether the district court erred by instructing the jury on a lying

- in

- wait theory of first

degree murder after the State had abando ned that allegation?
7. Whether the prosecutor’s closing argumen t amounted to fundamental error?
8. Whether the cumulati ve error d octrine necessitates a reversal?
9. Whether the district court abused its discretion in sentencing Adamcik?
10. Whether the sentences imposed on Adamcik were unreasonable or cruel and unusu al under the Idaho Constitution?
11. Whether the district court abu sed its discretion in d enying Adamcik’s Rule 35 motion?
III

. ANALYSIS
A. Sufficient evidence was submitted to support the jury’s determination that Adamcik was guilty of first

- degree murder , beyond a reasonable doubt. In this case, the State charged Adamc ik as a perpetrator of first

- degree murder. Adamick argues that the State did not produce sufficient evidence upon which a reasonable jury could conclude that he was guilty of first

- degree murder because the State failed to prove that he actually inflicted a fatal stab wound. Adamcik argues : (1) that the State failed to prove which of the wounds were fatal, as the State’s expert witness
, Dr. Skoumal
, only offered testimony that
twelve of the wounds were “potentially fatal; ” (2) that the State failed to pres ent any evidence tying him to either of the knives and, therefore, failed to prove that he inflicted a fatal stab11 wound ; 3 and (3) that the expert testimony of his own forensic pathologist, Dr. Leis, negated the testimony of the State’s expert forensic path ologist, Dr. Garrison

. 4 The State responds that the testimony and autopsy report offered by Dr. Skoumal reveal that one of the twelve potentially fatal wounds was infl icted by the non

- serrated knife blade while the remaining eleven were made w ith a serra ted blade. T he State argues that Dr. Garrison
established the use of two knives

— one with a serrated blade and the other with a non

- serrated blade. Therefore, the State argues that the cumulative evidence of both experts demonstrates that
two knives caused potentially fatal wounds.
1. Standard of Review. The Fourteenth Amendment of the United States Constitution guarantees the right to due process, and the U.S. Supreme Court has held that as a part of that due process, “no person shall
be made to suffer the on us of a criminal conviction except upon sufficient proof

— defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” Jackson v. Virginia , 443 U.S. 307, 316 (1979). The relevant inqu iry is not whether this Court would find the defendant to be guilty beyond a reasonable doubt, but whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id . at 319 (emphasis in original). Thus, when determining whether Adamcik’s conviction as a perpetrator of first

- degree murder should be upheld, the only inquiry for this Court is whether there is substantial evidence upon which a reasonable jury could have found that the State met its burden of proving the
essential elements of first

- degree murder beyond a reasonable doubt. State v. Joslin , 145 Idaho 75, 80, 175 P.3d 764, 769 ( 2007 )

. In conducting this analysis, the C ourt is required to consider

3 Although Adamcik concedes that Dr. Skoumal testif ied that one of the potentially fatal wounds (identified as wound number 1) may have been inflicted by the non

- serrated knife, he argues that Dr. Skoumal’s testimony does not constitute sufficient evidence. Additionally, Adamcik argues that Dr. Garrison di d not specifically testify that wound number 1 was caused by the non

- serrated knife. 4 Dr. Garrison testified that wounds identified as wound number 2 and wound number 22 were caused by the same stab (one through the hand that also went into the trunk), an d that the knife used in these wounds was serrated. Dr. Leis testified that it was actually wound number 1 that was inflicted at the same time as wound number 22, not wound number 2. Consequently, Adamcik argues that Dr. Garrison’s own testimony establishe s that wound number 1 must have been inflicted by a serrated knife. Although Dr. Leis’ testimony sought to call into question that of Dr. Garrison, the inquiry is whether the State provided sufficient evidence to support the conviction. If such evidence

wa s presented, the Court does not second

- guess the jury by reweighing the evidence. See State v. Porter , 130 Idaho 772, 787, 948 P.2d 127, 142 (1997) (“This Court simply reviews the evidence presented at trial and will not reweigh the evidence.”) . Therefore , this analysis does not address Adamcik’s argument that his own expert, Dr. Leis
, contradicted Dr. Garrison’s testimony.12 the evidence in the light most favorable to the State, and we do not substitute our judgment for that of the jury on issues of witness credibility, weight of the evidence, or reasonable inferences
to be drawn from the evidence. State v. Oliver , 144 Idaho 722, 724, 170 P.3d 387, 389 ( 2007 ). Viewing the evidence in the light most favorable to the State, there is substantial evidence in the record to support Adamcik’s conviction for first

- degree murder.
2. There is sufficient eviden ce to support the jury’s conviction of Adamcik for first

degree murder

. Contrary to Adamcik’s argument, there is substan tial evidence in the record upon which a jury could reasonably conclude, beyond a reasonable doubt, that Adam ci k was guilty of first

deg ree murder

. Dr. Skoumal, the medical examiner who performed the autopsy on Stoddart,
testified that Stoddart died from multiple stab wounds to the trunk. Dr. Skoumal also testified that twelve of the thirty knife

- related wounds on Stoddart’s body had the p otential to be fatal. Of those twelve, Dr. Skoumal was unable to identify the specific wounds that caused Stoddart’s death, but it is clear from his testimony that she died as a result of more than one of those twelve
stab wounds. According to Dr. Skoumal, one of those wounds, referred to as wound number 1, was inflicted by a knife with a non

- serrated blade , while the remainder were caused by a knife
with a serrated blade

. Dr. Skoumal testified that wound number 1: was located in Stoddart’s mid, upper c hest.

. . . The tissues that it penetrated included the skin, muscle, soft tissue, right rib number three , the mediastinum

— which is in the middle of the chest

— the pericardial sac

— which is the sac overlining the heart

— the right ventricle

— which is a part of the heart. And there were two cups of blood in the pericardial sac surrounding the heart.
It’s my opinion that the vital structures were injured, and it had the potential to be fatal.
In response to a subsequent question from the prosecutor, as to wheth er wound number 1 was

“ potentially fatal, ” Dr. Skoumal answered in the affirmative. Dr. Skoumal’s testimony is consistent with the testimony of the State’s expert, Dr. Garrison, who testified that at least two knives were used in the murder of Stoddart, o ne with a serrated blade, and another with a non

- serrated blade. Dr. Garrison based this conclusion on the fact that some of the wounds contained excoriations and tears around their edges, which is13 consistent with the use of a knife with a serrated blade, while other wounds contained no such excoriations or tears, which is consistent with the use of a knife with a non

- serrated blade. Dr. Garrison further testified that wound number 1 did not contain any irregular cuts, which would be expected if wound numbe r 1 was inflicted by a knife with a non

- serrated blade. In other words, Dr. Garrison’s testimony supports Dr. Skoumal’s testimony that wound number 1, which was a potentially fatal wound, was inflicted by a knife with a non

- serrated blade. Therefore,
based on the testimony of Dr. Skoumal and Dr. Garrison, the jury could have reasonably concluded that two knives were used during the attack on Stoddart, and that both knives inflicted
wounds that could have caused Stoddart’s death

. 5
Adamcik’s frie n d, Joe Luce r o, testified that he bought four knives for Adamcik and Draper

. Lucero said that he used $45 to pay for the knives

— $40 from Draper and $5 from
Adamcik. Lucero identified four of the State’s exhibits as the knives he bought. One of t he
knives had a serrated blade; t he other three knives were non

- serrated. Police found all four
knives at the BRC site. Lucero testified that Draper made a point to claim ow nership of the
serrated knife.
T he jury was presented with evidence that two knives inflicted potentially fatal wounds, and that Adamcik and Draper collaborated in the murder. This collaboration is supported by the BRC tape wherein Draper and Adamcik discuss their joint plan to kill Stoddart. The jury was also provided with evidence suggesting that Adamcik an d Draper were together immediately after Stoddart’s murder, and jointly attempted to hide weapons and clothing used during the
commission of the murder. T he jury watched the video of police interview ing Adamcik, during
which Adamcik made verbal and nonverb al assertions that can reasonably be construed as his
confessi ng to stabbing Stoddart. This evidence, coupled with the testimony provided by the State’s experts, is sufficient for a reasonable jury to conclude that: (1) two knives were used to
murder Stodd art; (2) both knives inflicted potentially fatal wounds; ( 3) Draper favored the knife with the serrated blade which inflicted most of the potentially fatal wounds; and (4) the other
knife w as used by Adamcik to inflict the other stab wound that injured Sto ddart’s vital structures

5 Dr. Garrison did not address the issue of whether wound number 1 caused Stoddart’s death. He did, however, state that some of the tw elve potentially fatal wounds “were inflicted after circulation had ceased, and those were a less concern simply because they would not have been fatal at this point.” In other words, if a wound did not produce significant bleeding, it may have been inflic ted after Stoddart’s heart stopped pumping. Dr. Garrison did not rule out wound number 1 as a potentially fatal wound, nor did he address Dr. Skoumal’s testimony which associated wound number 1 with two cups of blood in the pericardial sac surrounding the heart.14 and which had the potential to be fatal

. No evidence was introduced that would contradict such
conclusions

. Adamcik nevertheless contends that his murder conviction must be vacated because “the State has not provided substantial e vidence that To rey Adam c i k actually killed Cassie Stoddart by putting a knife into her.” In support of his contention, Adamcik asserts that the amended information charges him with actually killing Cassie, rather than participating as an accomplice.
The re levant part of the amended information is described in J.I. 10, as follows:
MURDER IN THE FIRST DEGREE That the said TOREY MICHAEL ADAMCIK, in the County of Bannock, State of Idaho, on or between the 22nd and 23rd days of September, 2006, did willfully, u nlawfully, deliberately, with premeditation and with malice aforethought, kill and murder Cassie Stoddart, a human being, by purchasing knives and stabbing Cassie Stoddart from which the victim died in Bannock County, Idaho.
He claims that in order to conv ict him of murder, the State was required to prove that he actually
inflicted the fatal stab wound that resulted in Stoddart’s death

. To be found guilty of murder, it was not necessary for Adamcik to have inflicted the fatal wound. It was only necessary to show that he aided and abetted in its commission. As this Court stated six decades ago: The common law distinction between classes of parties to criminal offenses is abolished. All persons concerned in the commission of a crime are principals, and one who aids and abets another in the commission of a crime is a principal.
No reference to accused as an accessory is necessary.
Nor is it necessary that facts be set out showing whether the accused was an accessory or a principal.
An accessory to a crime, or a participant therein may be charged as a principal, and the information need not allege facts different from those required to be alleged against the principal.

State v. So , 71 Idaho 324, 331, 231 P.2d 734, 738 (1951) (citations omitted). More recen tly we stated, “In Idaho there is n o distinction between principals and aiders and abettors, and it is unnecessary [that] the charging document allege any facts other th an what is necessary to convict a principal.” State v. Johnson , 145 Idaho 970, 976, 188 P.3d 912, 918 (2008).15 Since 1864, Idaho has had a statute providing that a charging document alleging that a defendant committed a crime as a principal is sufficient to also charge the defendant with bei ng an accessory before the fact. As currently codif ied, it states: 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 com mit 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.
I.C. § 19

- 1430 (emphasis added). Under this statute, an information charging a defendant with committing a crime as a principal also charges the defendant with aiding and abetting its
commission. The defendant i s also presumed to know that the charge includes both committing the crime as the principal and acting as an accessory before the fact. Furthermore, “All persons
concerned in the commission of a crime . . . whether they dire ctly commit the act constituting the offense or aid and abet in its commission , or, not being present, have advised and encouraged its
commission . . . are principals in any crime so committed .” I.C. § 18

- 204 (emphasis added). So, “[t]ogether, I.C. § 18

- 204 and I.C. § 19

- 1430 show a le gislative intent to consider defendants as principals whether they directly committed the crime or aided and abetted in the commission of
the crime.” State v. Johnson , 145 Idaho at 974, 188 P.3d at 916. In this case, there certainly was sufficient evide nce to convict Adamcik under an aiding and abetting theory. There is evidence that both Draper and Adamcik were in the Whisper ing Cliffs house, lying in wait for Stoddart. Two knives were used in the murder, both of which potentially caused Stoddart’s de ath. There is no evidence that a single person, holding both knives, inflicted all of the stab wounds. It is therefore both reasonable and likely for a jury to infer that Draper and Adamcik both stabbed Stoddart until she died. Furthermore, the video
fo otage taken immediately before and after the murder demonstrates Adamcik’s preparation for, and involvement in, the murder, as do the sets of clothing and masks found at Black Rock Canyon. The sufficiency of the evidence to convict Adamcik on an accomplic e theory, therefore, cannot reasonably be questioned. Adamcik argues that without sufficient evidence to convict him as a principal, this Court cannot affirm the conviction on aiding and abetting grounds without violating his right to a jury
trial and his right to due process. Adamcik also argues that any error resulting from the lack of16 an aiding and abetting instruction is not harmless because the sentencing court made its determination based on Adamcik’s guilt as a principal, rather than as an accompli ce. Aiding and abetting, however, is not treated as a separate offense with different elements, so af firming Adamcik’s conviction here would not violate his right to due process. In fact, we have previously affirmed convictions on an aiding and abetting theory even when the State failed to expressly charge the defendant as an accomplice. In State v. Ayres , for example, Ayres contended that he was denied a fair trial when the information charged him as a principal, but a State’s witness suggested he could be an accomplice. 70 Idaho 18, 25

– 26, 211 P.2d 142, 145 (1949). In that case, Ayres and his passenger, Trautman, were involved in a collision with another vehicle, which killed Trautman and four of the five passengers in the other vehicle. Id. at 23, 2 11 P.2d at 144. The information charged Ayres with involuntary manslaughter, alleging that Ayres was driving at the time of the crash. Id. at 24

– 25, 211 P.2d at 145. We held the information was sufficient to put Ayres on trial under either a principal o r accomplice theory, even though it only charged him as a principal. Id. at 25, 211 P.2d at 145. So, when the State subsequently presented an aiding and abetting theory in rebuttal to Ayres’s testimony that Trautman was driving at the time of the crash, this Court determined there was no fatal variance from the information and Ayres was not denied a fair trial. Rather, we held that Ayres “was fully advised of the acts he was charged to have committed, and he is presumed to know that he would be a princip al and guilty as such whether he directly committed the acts charged or aided and abetted in their commission by another.” Id. at 27

– 28, 211 P.2d at 147. The information charging Adamcik with killing Stoddart by purchasing knives and stabbing her, as set out in J.I. 10, was therefore sufficient to put him on notice that he could be found guilty as an accomplice
in Stoddart’s murder. It was simply unnecessary for the State to prove Adamcik inflicted the fatal wound. In
State v. Owen , William Owen and Kenn eth Hastings, each armed with a gun, entered a market intending to commit a robbery. When one of the proprietors grabbed a meat cleaver and started around the meat counter, Owen fired a warning shot trying to scare the proprietor into stopping.
73 Idaho 394, 253 P.2d 203 (1953). The proprietor kept advancing, and Owen, as he was backing towards the door, fired a second warning shot and yelled, “Let’s get out of here.” Id. at 400, 253 P.2d at 206. Hastings made it out the door, and as Owen reached the d oor with the proprietor close behind, Owen fired a third shot, killing the proprietor. On appeal, this Court17 held that under I.C. § 19

- 1430, “Hastings was properly charged, tried and convicted as a

pr incipal. . . . He was equal in g uilt with Owen.” Id. at 419, 253 P.2d at 218. Defendants acting in concert are thus equally guilty of the crime charged. Accordingly, Adamcik, whether a principal or an accomplice in Stoddart’s murder, is liable as a principal; he is liable as if he and
he alone inflicted each of the wounds that ultimately killed Stoddart. We have also determined that it is unnecessary to instruct a jury on a unanimity requirement as to which theory

— principal or accomplice

— the jury used in making its determination. “[I]t is unnecessary to ins truct 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.” State v. Johnson , 145 Idaho at 978,
188 P.3d at 920. Because both principal and accomplice theories are just different means of proving the underlying charge

— e.g. , murder

— there are no additional elements the State must prove and it is unnecessary to provide a unanimity instruction. See id. Ayres , O wen , and Johnson demonstrate the extent to which this Court treats principals and accomplices as one a n d the same. In other words, when the State has initially advanced a theory of principal liability but not accomplice liability, it may nonetheless seek t o convict the defendant as an accomplice without violating due process. In this case, J.I

. 12 instructed the jury

t hat if it found that Adamcik “engaged in conduct that caused the death of Cassie Jo Stoddart,” then it must find him guilty. That instruction incorporates the concept of aiding and abetting. It is written so that the wording covers both someone who personally inflicted the fatal wound and someone who aided and abetted the killing. Both of them

— the principal and the accomplice

— would have engaged in conduct that caused the death of the victim. “‘[A]iding and abetting’ requires some proof that the accused either participated in or assisted, encouraged, solicited, or counseled the crime. Mere knowledge of a crime and assent to or acquiescence in it s commission does not give rise to accomplice liability.” State v. Randles
, 117 Idaho 344, 347, 787 P.2d 1152, 1155 (1990) overruled on other grounds by State v. Humpherys , 13 4 Idaho 657, 660

– 62, 8 P.3d 652, 655

- 57. Here, the jury was instructed that to
f ind Adamcik guilty, it must find beyond a reasonable doubt that he “acted without justification or excuse,” and that he acted “with malice aforethought.” To find that he acted with malice aforethought, the jury was instructed that the State must prove eith er that he “deliberately intended to kill another human being without legal justification or excuse” or that he18 “intentionally engaged in conduct dangerous to another under circumstances which dem onstrated
an extreme indifference to the value of human life .” 6 There is no contention that Adamcik merely had knowledge of the crime and assented to or acquiesced in its commission, and under this instruction, the jury could not have found him guilty of murder had that been true. The jury was not asked to find th at Adamcik personally inflicted the fatal wound, nor was such a finding required for him to be guilty of murder. There is no contention that the jury may have concluded that he was guilty of murder based upon conduct that was merely negligent. The jury f ound that he acted “with malice aforethought” when he engaged in conduct that caused
Cassie Jo’s death. The jury also found, with respect to Adamcik’s intent, that he was guilty of conspiracy to commit murder in the first degree. The jury found that on or between September 22 and 23, 2006, Adamcik and Brian Lee Draper agreed to commit the murder, that Adam c ik intended that the murder be committed, and that he did at least one of four listed acts for the purpose of carrying out the agreement. There is no c ontention that the jury was improperly instructed regarding the conspiracy charge, nor is there any contention that the evidence was insufficient to support a verdict of guilty on that charge. There is no contention that Adamcik withdrew from that conspir acy before Cassie Jo Stoddart was murdered, nor was there any evidence so indicating. There is no contention that he was not present at her murder, and the undisputed
evidence showed that he was. There is no contention that the evidence was insufficient to show that he aided and abetted her murder, and there is no factual dispute on that issue. Even assuming Adamcik had been able to establish the existence of error, it would be
harmless. Adamcik argues that the failure to give an aiding and abetting instr uction was not harmless for three reasons. First, he asserts that “the state should not be shielded from the consequences of its own strategic choices. . . . It did not seek a jury instruction on that theory.” Adamcik does not explain how he was prejud iced by the State’s failure to request an instruction on aiding and abetting, nor does he explain how the instruction given would not cover conduct that constituted aiding and abetting even though those precise words were not used.

6 The malice instruction included a third manner of proving malice, which was, “The defendant deliberately intended to kill as a result of provocation which the jury determines would not have caused a reasonable person to have lost his self

- control and reason.” There was no evidence that Adamcik reacted to any provocation by Stoddart. But “[t]he absence or presence of provocation is a pertinent fact which must be considered with all the other circumstantial evidence relevant to the appellant’s acti ons.” State v. Beason , 95 Idaho 267, 276, 506 P.2d 1340, 1349 (1973). The absence of considerable provocation was relevant to show that Adamcik acted with malice as otherwise defined.19 Second, he contends tha t the failure to instruct on aiding and abetting was not harmless because it “is inconsistent with the Sixth Amendment right to a jury trial.” He argues, “Here no jury has ever been presented with the question of whether Torey is guilty under an accomplic e liability theory.” When instructing the jury on reasonable doubt, we have not required any particular form of words as long as the instructions, taken as a whole, correctly convey the concept of reasonable doubt. State v. Sheahan , 139 Idaho 267, 273, 7 7 P.3d 956, 962 (2003);
accord State v. Row , 131 Idaho 303, 310, 955 P.2d 1082, 1089 (1998). We have likewise not required any particular wording when instructing the jury regarding liability as an accomplice.
See State v. Ehrmantrout , 100 Idaho 202, 59 5 P.2d 1097 (1979). Adamcik states that the jury instruction defining murder “allowed the jury to find Torey guilty of Murder even if the jury found he did not inflict the fatal wound or even stab Cassie so long as he engaged in some
conduct which caused Cassie's death.” He does not argue, however, that the concept of accomplice liability is not covered by the wording of the jury instruction that he “engaged in conduct which caused the death of Cassie Jo Stoddart,” that he “acted without justification or excuse,” and that he acted “with malice aforethought.” Finally, he alleges, “If the conviction is affirmed under an aiding and abetting theory, Torey’s due process right to be only convicted of the charge actually lodged against him would
be violated.” One hundred years ago, this Court stated, with respect to Idaho Code section 19

- 1430, that the statute “specifically abrogates all distinctions heretofore existing between accessories and principals, and so under the statute of this state an accessory is now prosecuted as a principal.” State v. Cramer , 20 Idaho 639, 659, 119 P. 30, 36

- 37 (1911). Over six decades ago this Court held: The prosecuting attorney, in drawing up an information is not bound to elect between charging a defendant as a principal or as an accessory before the fact. Under the terms of the statute [Idaho Code section 19

- 1420] he may ask for a verdict of guilty if the evidence is sufficient to satisfy the jury upon either theory.
State v. Ayres , 70 Idaho 18, 26

- 27, 211 P.2d 142, 146 ( 1949). As we stated in Ayres , the defendant “is presumed to know that he would be a principal and guilty as such whether he directly committed the acts charged or aided and abetted in their commission by another.” Id . at 27

- 28, 211 P.2d at 147 (emphasis added). Thus, the amended information charged Adamcik as aiding and abetting in the killing of Cassie Jo Stoddart. As we stated in State v. Johnson , 145
Idaho at 976, 188 P.3d at 918, “In Idaho there is no distinction between principals and aiders and20 ab ettors, and it is unnecessary the charging document allege any facts other than what is necessary to convict a principal.” An information charging a defendant with a crime also charges the defendant with aiding and abetting the commission of that crime. 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, construc tive amendment, or due process violation.”
Id . at 977, 188 P.3d at 919. Adamcik cites several United States Court of Appeals and Supreme Court cases that suggest the failure to affirm a conviction pursuant to the same charge, and under the same law
and ac ts underlying the conviction, violate due process. This case, however, is readily distinguishable. Adamcik cites McCormick v. U.S. , in which the U.S. Supreme Court said, This Court has never held that the right to a jury trial is satisfied when an appella te court retries a case on appeal under different instruction and on a different theory than was ever presented to the jury. Appellate courts are not permitted to affirm convictions on any theory they please simply because the facts necessary to support th e theory were presented to the jury.
500 U.S. 257, 270 n.8 (1991).
Adamcik also cites Dunn v. U.S. , 442 U.S. 100, 106 (1979) for the proposition that it is a violation of due process to convict the defendant based on facts substantially different from th ose alleged in the charging document. In Dunn , the U.S. Supreme Court reversed a Court of Appeals decision that affirmed a perjury conviction based on testimony the jury did not consider in rendering its guilty verdict. Id. In reaching its decision, the Court wrote: “appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial.” Id. at 107. “To uphold a conviction,” said the Court, “on a charge that was neither alleged i n an indictment nor presented to a jury at trial offends the most basic notions of due process.” Id. at 106. Central to the Court’s analysis was a discrepancy in dates of the defendant’s testimony, which was material evidence in the Government’s perjury case: “the jury was instructed to rest it s decision on Dunn’s September statement, the Tenth Circuit predicated its affirmance on petitioner’s October testimony.” Id. The Court of Appeals thus upheld a conviction on evidence not before the jury. But
, whe re the State has charged the defendant in a general indictment, and an appellate court can affirm a defendant’s conviction under the same law as the trial court, there is no due process issue. See Santellan v. Cockrell
,21 271 F.3d 190, 197 (5th Cir. 2001) ( “Because of the general nature of the indictment and the jury charge, and because the [appellate court] affirmed on the basis of the same law and the same ultimate acts that underlay the conviction in the trial court, neither Dunn nor McCormick is applicab le to [the defendant’s] case.”)

. Here, unlike Dunn and McCormick , there are not multiple charges or distinct facts the jury did not consider; the information charged Adamcik with murder and the jury considered all
the evidence we now discuss. There is n o distinction between principals and accomplices in Idaho, so the information charging murder put Adamcik on notice of both theories. The jury need not find separate facts, nor consider distinct elements of a crime to convict for murder as a principal or as an accomplice because both theories support the crime. So, unlike McCormick
, we are not making an independent finding of fact. And, unlike Dunn , this case involved a generalized information, supporting either the principal or accomplice theory. We th erefore affirm Adamcik’s first degree murder conviction.
B

. The district court did not err in denying Adamcik’s motion to suppress statements that he ma de to detectives after his parents had invoked his Fifth Amendment right to counsel. On September 27, 2006, the police requested that Adamcik come to the police station for an interrogation. Adamci k’s parents, Sean a nd Shannon Adamcik
, repeatedly requested that the interrogation be delayed until the next day, when an attorney that they had consulted with w ould
be available to assist . However, the Adamciks eventually acquiesced to the detectives’ request and the interrogation took place that night. The interrogation was videotaped. Sean and Shannon were present when the detectives read Adamcik his Miranda rights, and when Adamcik signed a waiver form. Midway through the interrogation Shannon left in order to pick up another child from a school function, but Sean remained present throughout. After approximately one hour and twenty minutes of interrogation
, Adamcik invoked his right to counsel . At that point
, the interrogation was terminated and Adamcik and Sean were taken to a separate room where they held a private and unrecorded conversation for approximately ten minutes. After that private conversation
, Adamcik and Sean again met with detectives in the interrogation room. At this point the following exchange took place:
Detective Thomas : Dad, I think we owe it to you at this point to find out what we know at this point. There’s just no easy way to tell you this. We do know that Sean, excuse me Torey and . . . um Detective Ganske : Brian22 Detective Thomas : . . . Brian had gone back into the house. Okay? We do know that the two of them murdered, we do know that they murdered Cassie. Okay? We’ve got t he evidence at this point to prove that, also

— Detective Ganske :

— We found the evidence Detective Thomas: We also have some overwhelming evidence . . . uh, trace evidence, that type of stuff that is going to prove that they did it as well. It’s not just h earsay. It’s not just somebody saying it. And then we do have a confession from another person giving full disclosure. Sean : [to Adamcik] So is that why you want to talk to a lawyer? Detective Ganske : And here’s the deal with you [looking and gesturing at Sean]

. What I would like to do is maybe when your wife comes back, sit down and talk to you all, and get you up to speed. [ turning and looking at A damcik and gesturing at Adamcik] You know what you need to do. You know exactly what happened and you k now what you need to do. So unfortunately, you are not going anywhere tonight. You’re going to be placed in custody tonight. Okay? I’m sorry that’s the way it goes, but . . . Detective Thomas : You are going to be charged with First Degree Murder. Okay ? Detective Ganske : Okay? But like I said before, before you say anything, I encourage you, you want to talk to an attorney, you should do that. I am not pullin’ punches here . . . still, your full cooperation can do nothing but help you at this point in time. Sean : Understand that Torey? Detective Ganske : Okay? Sean : I know you need a lawyer, or whatever, you want to talk to a lawyer. I

un derstand that’s the advice they

— Detective Ganske :

— or

— Sean :

— gave you today and you, and then whatever you and the lawyer work out, they want you to cooperate [ the last five words of this sentence were difficult to make out as Detective Ganske be gan talking over Sean] Detective Ganske : [facing Adamcik]

— We know the details. We’ve got the knife that you used, we go t the masks that you used, we’ve got the videotape. We’ve got it. There’s a tape up in there that you buried. Okay? You tried to catch it on fire. All that stuff. You know what I’m talking about, I don’t need to tell you that. Sean : This is right, T orey . . . Adamcik : Yeah. Sean : What they are saying is true? Adamcik : [nodding yes]23 There was continued interaction following this point, but the district court granted Adamcik’s motion to suppress as to the remainder of the recorded interaction.
Ad amcik argues that: (1) his parents invoked his Fifth Amendment right to counsel
, 7 as applied to Idaho by the Fourteenth Amendment, prior to the September 27, 2006, interrogation; (2) Adamcik was questioned after his parents had invoked his right to counsel and before he had been provided with access to an attorney; and (3) even if the initial interrogation was not a violation of his rights, the continuing statements following Adamcik’s unequivocal invocation of his right to counsel were designed to el icit a response from him. Adamcik concludes that the entire interrogation should have been suppressed or
, alternatively , that the exchange which took place subsequent to his invocation of his right to counsel should be suppressed. The State argues that: (1) Ada mcik’s parents could not invoke his right to counsel on his behalf; (2) even if Adamcik’s pare nts could have invoked his right to counsel
, they failed to unequivocally do so; (3) if Adamcik’s parents did unequivocally invoke his right to counsel
, they
subs equently and voluntarily acquiesced to the interrogation proceeding; (4) Adamcik himself
executed a waiver of his Miranda rights in his parents’ presence, and that waiver was knowing, voluntary and intelligent; and (5) the statement and nonverbal response made by Adamcik
, following his invocation of his right to counsel
, was in response to Sean’s q uestioning and Sean
was not a S tate actor. The State argues that the district court correctly denied Adamcik’s motion for suppression of evidence as to these por tions of the video

- taped interrogation. The district
court assumed arguendo that Adamcik’s parents had unequivocally invoked his Fifth Amendment right to counsel.
We shall first consider whether a parent may invoke the right to counsel on behalf of a mi nor child. Second, assuming Adamcik’s parents did invoke the right to counsel on his behalf, whether that invocation was scrupulously honored by the det ectives until it was subsequently waived. Finally, whether Adamcik’s verbal and nonverbal responses to Sean’s questions, after the invocation of his right to counsel, should have been suppressed.
1. Standard of Review “When we review an order granting or denying a motion to suppress, we accept the trial court’s factual findings, unless they are clearly er roneous.” State v. Fees , 140 Idaho 81, 84, 90

7 See Davis v. United States , 512 U.S. 452, 456

- 57 (1994) (noting that although the Sixth Amendment right to counsel only attaches at the initiation of adversarial criminal proceedings, a suspect subjected to custodial interrogation has the right to counsel to protect his Fifth Amendment right against compulsory self

- incrimi nation).24 P.3d 306, 309 (2004). “However, free review is exercised over a trial court’s determination as to whether constitutional requirements have been satisfied in light of the facts found.” State v. Doe , 137 Idaho 51 9, 522, 50 P.3d 1014, 1017 (2002) (quoting State v. Donato , 135 Idaho 469, 470, 20 P.3d 5, 6 (2001)). “A district court’s conclusion that a defendant made a knowing and voluntary
waiver of his Miranda rights will only be disturbed on appeal if the conclus ion is not supported by substantial and competent evidence.” State v. Payne , 146 Idaho 548, 558 , 199 P.3d 123, 133 (2008). In determining whether a defendant has voluntarily, knowingly and intelligently waived
his Miranda rights
, this Court must consider the totality of the circumstances. Doe , 137 Idaho at 523, 50 P.3d at 1018; Payne , 146 Idaho at 559, 199 P.3d at 134

. The factors the Court must consider include: “(1) Whether Miranda warnings were given; (2) The youth of the accused; (3)
The accused’s le vel of education or low intelligence; (4) The length of detention; (5) The repeated and prolonged nature of the questioning; and (6) Deprivation of food or sleep.” Doe , 137 Idaho at 523, 50 P.3d at 1018 . “Any waiver of Miranda warnings must be knowing,
in telligent, and voluntary.” Id

. 2. Adamcik’s parents could invoke his right to counsel

. In Doe , we said “[a] minor’s parents may invoke the right to counsel for the child, but that request must also be clear and unambiguous.” 137 Idaho at 525, 50 P.3 d at 1020. See also
United States v. Doe , 60 F.3d 544, 546 (9th Cir. 1995) (examining whether minor’s parent had unequivocally invoked his right to counsel, thus implying that the parent could do so). In Doe , the Appellant ( a minor ) argued that an intervie w he had with detectives should have been suppressed because his mother had invoked his right to counsel. 137 Idaho at 524, 50 P.3d at
1019. The Doe Court recognized that the mother could have done so, but concluded that the
mother’s conduct

— in asking th e police whether she needed an attorney for her son, and what to
do since she could not afford one

— did not amount to a clear and unambiguous request for
counsel. Id . at 525, 50 P.3d at 1020. The State argues that this Court’s statement in Doe should be considered obiter dictum
, as this Court ultimately concluded that the Appellant’s mother had not invoked his right to counsel. However, the Doe Court did not indicate that it was assuming arguendo that a parent could invoke their minor child’s right to cou nsel, but then mak e a finding t h at the parent had not25 done so. R ather
, the Court clearly stated that a parent could do so, and then applied the proper
standard to determine whether it had been done under the facts at hand. 8 In Idaho, a parent m a y invoke the rig ht to counsel on behalf of a minor child. The reasoning for this principle of law was aptly stated by the Court of Appeals of New York in People v. Mitchell : Childre n of tender years lack an adult’ s knowledge of the probable cause of their acts or omissions and are least likely to understand the scope of their rights and how to protect their own interests. They may not appreciate the ramifications of their decisions or realize all the implications of the importance of counsel. Indeed, the need for counsel “has been recognized as all the more vital with respect to the unsophisticated, who are often uneducated in the ways of the criminal justice system and unaware of the role counsel can play in protecting their interests.” 810 N.E.2d 879, 882 (N.Y. 2004) (quoting People v. Settles , 385 N.E.2d 612, 614 (N.Y. 1978)). 3. Assuming arguendo that Adamcik’s parents did invoke his right to counsel, Adamcik’s Miranda rights were not violated. A suspect must unambiguously request counsel in order to invoke his Fifth Amendment right to counsel

— “he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis v. United States
, 512 U.S 452, 459 (1994). Where an individual asserts his right to counsel
, the interrogation must cease until counsel has been made available to him, or until he himself “initiates further communication, exchanges, or conversations with the police.”
Edw ards v. Arizona , 451 U.S. 477, 485 (1981). The district court below did not make a factual finding as to whether or not Adamcik’s mother, Shannon, had invoked his Fifth Amendment right to counsel. The court did not feel compelled to weigh the credibility o f statements offered by Sean and Shannon against those offered by the three detectives, finding that even if Shannon had invoked Adamcik’s right to counsel, that right was subsequently waived. Where an individual has invoked his right to counsel
, the poli ce may not continue to interrogate him until he has either been provided with access to an attorney or until he himself

8 The State cites to People v. Young , 850 N.E.2d 284, 298

– 99 (Ill. App. 2006), in support of its argument that th e Court’s statement in Doe was dicta ; however
, the views of the Illinois Court of Appeals are neither binding nor instructive to this Court in its interpretation of Idaho law.26 reinitiates communication with the police, as was noted in Edwards . 451 U.S. at 485. Where a parent has invoked the right to counsel on behalf of a minor child, and the police continue to request that the parent waive that right, there is no violation

— as the child is not being questioned by the police. See, e.g. , State v. Hansen , 138 Idaho 791, 795, 69 P.3d 1052, 1056 (2003) (noting
that Miranda rights apply where a person is subject to custodial interrogation). Furthermore, even if the parent agrees to waive Miranda rights
, the minor himself will still have to agree to such a waiver, removing at least part of the rationale for the rule e stablished in Edwards

. See
Davis v. United States , 512 U.S. 452, 458 (1994) (explaining that the rational e behind prohibiting the police from attempting to reinitiate communication s wit h a suspect after he
invokes his right to counsel was to prevent the d efendant from being badgered into waiving his rights). This Court applies the same stan dard in determining whether the police have violated a
minor’s Miranda rights

— where that minor’s parents are persuaded to waive the right to counsel, after previously in voking it

— as is applied in determining whether an adult individual has freely
waived their Miranda rights. Specifically , the standard is whether, under the totality o f the circumstances, the court finds that the minor’s parents have been coerced and intimi dated in such a way that their will has been overborne. State v. Doe , 137 Idaho 519, 523, 50 P.3d 1014, 1018 (2002). Adamcik argues that after Shannon invoked his right to counsel
, the detectives became angry and demanding, leaving Shannon and Sean with t he impression that Adamcik would be taken into custody if the interview did not take place that night. The detectives denied this, testifying that they remained calm and sympathetic, as they wanted to gain Adamcik’s cooperation. The district court made no factual finding concerning the respective credibility of the affidavits and testimony before it on this issue, assuming arguendo that the detectives had acted in the manner that Sean and Shannon asserted that they did. The district court stated:
Even if th e Detectives’ alleged impatience with Sean and Shannon escalated into a frustrated or heated state, and the threat of their son’s detention provoked Sean and Shannon into agreeing to go forward with the interview, the Court does not find either tactic to b e one that would overbear their ability to voluntarily agree to allow the Detectives to question Torey without the presence of an attorney. As noted above, where substantial and competent evidence supports the district court’s finding that a suspect knowi ngly, voluntarily and intelligently waived his Miranda rights
, this27 Court shall not disturb that finding on appeal. State v. Payne , 146 Idaho 548, 558 , 199 P.3d 123, 133 (2008). Where the district court fails to make a determination on the credibility o f competing testimony , instead assuming arguendo for purposes of answering a question of law that the version of events offered by one party is true, this Court will do likewise on appeal. Assuming the veracity of Shannon and Sean’s affidavits, we find th at the district court had substantial and competent evidence to support its finding that the conduct the detectives engaged in was not such
that it would overbear Shannon and Sean’s ability to voluntarily agree to waive Adamcik’s right
to counsel.
4. Ad amcik ’s verbal and nonverbal responses to Sean’s questions, subsequent to invoking his right to counsel, were not the result of the functional equivalent of an interrogation by a State agent. After detectives informed Adamcik that they did not bel ieve the story he had told them
, Adamcik requested an attorney. At that point
, all questioning ceased and Adamcik and Sean conversed privately in another room. After approximately ten minutes
, Adamcik and Sean returned and the exchange
, transcribed above
, occurred

. Adamcik argues that his verbal and non verbal responses to Sean’s questioning should be suppressed as the detectives engaged in conduct which was the functional equivalent of express questioning and reasonably likely to elicit an incriminating response. The State argues that the district court correctly determined that the statements made by detectives
, after Adamcik invoked his right to counsel
, were “not the functional equivalent of an interrogation. Rather, the statements are an objective presentation of the evidence they had gathered against [Adamcik].” The United States Supreme Court has stated that Miranda safeguards protect against express questions, as well as words or actions, by the police that are likely to elicit an incriminating response. See Rhode Island v. Innis
, 446 U.S. 291, 300

- 01 (1980) . In Rhode Island

v. Innis , the Court stated that:
the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to s ay, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to e licit an incriminating response from the suspect.
Id. (footnotes omitted).28 The record in this case clearly demonstrates that Adamcik’s verbal and nonverbal responses were in response to Sean’s questions, not statements made by the detectives.
As the Ni nth Circuit Court of Appeals stated in United States v. LaPierre : In determining whether a suspect was being interrogated, the critical inquiry is whether “[i]n light of both the context of the questioning and the content of the question,” United States v. Disla, 805 F.2d 1340, 1347 (9th Cir. 1986), the statements made by the officers were of the sort that “the police should know [are] reasonably likely to evoke an incriminating response.

. . .” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 169 0, 64 L.Ed.2d 297 (1980). We will reverse the district court’ s determination that [the appellant] was not being interrogated only if the determination is clearly erroneous. United States v. Booth, 669 F.2d 1231, 1238 (9th Cir.1981). 998 F.2d 1460, 1466 ( 9th Cir. 1993) (first alteration in the original). Here, the district court found that the statements the detectives directed at Sean were reasonable and appropriate to inform Sean of the reason why Adamcik was being arrested. The
court found that the sta tements directed at Adamcik himself were in line with a recitation of the evidence gathered against him, rather than an interrogational line of questioning reasonably likely to evoke an incrimination response. The court went on to note that, although the s tatement that Detective Ganske directed toward Adamcik of “you know what you need to do” and Detective Thomas’s statements about the evidence that had been gathered were “coated with a layer of precariousness, ” they still “do not rise to the level in which an objective observer would conclude [they] were designed to invite comment from [Adamcik].” In reaching this conclusion
, the district court compared the facts at hand to those present in cases from both the Idaho Court of Appeals ( See State v. Salato , 13 7 Idaho 260, 47 P.3d 763 (Ct. App. 2001); State v. Person , 140 Idaho 934, 104 P.3d 976 (Ct. App. 2004)) and the Ninth Circuit Court of Appeals ( See United States v. Hsu , 852 F.2d 407 (9th Cir. 1988); United States
v. Pheaster , 544 F.2d 353 (9th Cir. 1976); United States v. Olof , 527 F.2d 752 (9th Cir. 1975)). Based upon this comparison, the district court determined that under an objective examination of the circumstances, it could not be said that the detectives said anything that was the functional equiv alent of an interrogation, or likely to evoke an incriminating response. Furthermore, a s the district court noted: Even if the Court did find that the Detectives’ statements explaining the nature of the charge to Torey were designed to elicit a response from Torey, they certainly were not designed to elicit a response from Sean. Detectives Ganske and Thomas were facing Torey and speaking directly to Torey when they made the statements.29 Adamcik did not respond to the detectives’ statements, he responded t o Sean’s questioning. Although Adamcik argues that Sean had become an unwitting agent of the State, citing to one case from the Second Circuit Court of Appeals, Alexander v. Connecticut , 917 F.2d 747 (2d Cir. 1990), this argument is without merit. Adamcik contends that “[b]y manipulating Shawn’s [sic] shock and the parental relationship, the detectives made Shawn [sic] an unwitting agent of [the] state by engaging in conduct they should have know [sic] was reasonably likely to cause an exchange between fath er and son that would produce an incriminating response.” The appellant in Alexander admitted to his friend Papagolas that he had murdered a man named
Cook. Id . at 749. The police had been transporting Papagolas to and from prison for his meetings
with the appellant, and the Court noted that it had previously held that Papagolas had been acting as an agent of the government at the time of the appellant’s confession. Id . at 750. However, the Court reversed that previous determination, finding that “[t]he co nfessions, freely made to Papagolas, show that [the appellant] had no reason to believe Papagolas was cooperating with
the authorities.” Id

. The Court held that, in accordance with the U.S. Supreme Court opinion in
Illinois v. Perkins , 496 U.S. 292 (1990) , a custodial interrogation

— for purposes of Miranda

— occurs when: (1) the suspect is in police custody and (2) the suspect is aware that he is being interrogated by a government authority or representative. Alexander , 917 F.2d at 750

- 51. There is no plausi ble argument that Adamcik was under the impression that Sean was acting as a government represent ative when he questioned his son

. Therefore, under the reasoning of the
Court in Alexander , Adamcik’s statements were not made in response to a custodial
inter rogation.
The district court correctly denied, in relevant part, Adamcik’s motion to suppress, as his verbal and nonverbal response s to Sean’s questioning were not the product of a custodial interrogation by a State actor, or the functional equivalent of the same. C. Nothing in the Jury Instructions Amounted to Reversible Error

. 1. Standard of Review
As this Court stated in State v. Zichko : The issue of whether a particular jury instruction is necessary and whether the jury has been properly instructe d is a matter of law over which this Court exercises free review. This Court reviews jury instructions to ascertain whether, when considered as a whole, they fairly and adequately present the issues and state the applicable law.30 129 Idaho 259, 264, 923 P. 2d 966, 971 (1996) (internal citations omitted). We review jury instructions as a whole because “[i]t is well established that [an] instruction ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a who le and the
trial record.” Estelle v. McGuire , 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughten , 414 U.S. 141, 147 (1973)). “No party may assign as error the giving of or failure to give an instruction unless the party objects thereto before the jury reti res to consider its verdict, stating distinctly the instruction to which the party objects and the grounds of the objection.” Idaho Crim. R. 30(b). When a defendant has objected to an instruction, we will apply the harmless error test articulated
in Stat e v. Perry , 150 Idaho 209, 227 , 245 P.3d 961, 9 79 (2010). Typically, under the harmless
error test, once the defendant show s that a constitutional violation occurred, the State has the burden of demonstrating beyond a reasonable doubt that the violation d id not contribute to the jury’s verdict

. Id. If the jury reached its verdict based on an erroneous instruction , we will generally vacate and remand for a new trial. Id. at 22 8, 245 P.3d at 980

. However, where the jury received proper instruction on all bu t one element of an offense, and where the Court “concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error,
the erroneous instr uction is properly found to be harmless.” Id. (quoting State v. Lovelace , 140 Idaho 73, 79, 90 P.3d 298 , 304 (2004)). When a defendant fails to object to a jury instruction, we will still review the jury
instruction for fundamental error. State v. Jo hnson , 145 Idaho 970, 977, 188 P.3d 912, 919 (2008); see also State v. Perry , 150 Idaho at 224 , 245 P.3d at 976 (“If the alleged error was not followed by a contemporaneous objection, it shall only be reviewed . . . under Idaho’s
fundamental error doctrin e.”). Before we consider whether there was fundamental error, we
must first determine whether the trial court erred at all. Johnson , 145 Idaho at 977, 188 P.3d at
919. The Perry fundamental error test requires the defendant to show three things: (1) the alleged error violated an unwaived constitutional right; (2) the alleged error plainly exists; and (3) the alleged error was not harmless. Perry , 150 Idaho at 228 , 245 P.3d at 980. 2. When viewed in the context of all other instructions, Jury Instruct ion 12 fairly and adequately presented the issues and the state of applicable law to the jury.
Adamcik objected to the wor ding of Jury Instruction (J.I.) 12 at trial, and argues that J.I.
12 allowed the jury to convict him of first

- degree murder even if i t did not find that he actually31 stabbed Stoddart, causing her death. The State argues that J.I. 12 comports with Idaho Criminal Jury Instruction (ICJI) 704, which was approved by the Idaho Court of Appeals in State v.
Butcher , 137 Idaho 125, 44 P.3d 1180 ( Ct. App. 2002). J.I. 12 reads as follows: In order for the Defendant to be guilty of Murder, the State must prove each of the following: 1. On or between the 22nd and 23rd days of September, 2006, 2. in the State of Idaho 3. the Defendant, TOREY MICHAEL ADAMCIK, engaged in conduct which caused the death of Cassie Jo Stoddart, 4. the Defendant acted without justification or excuse, and 5. with malice aforethought. If you find that the State has failed to prove any of the above, then you must find the Defe ndant not guilty of Murder. If you find that all of the above have been proven beyond a reasonable doubt, then you must find the Defendant guilty of Murder, and then determine if the Defendant is guilty of First or Second Degree Murder.
In Butcher , the a ppellant argued that where he had been charged with murder under both principal and aiding and abetting theories, the term “engaged in conduct” confused the jury. 137 Idaho at 135, 44 P.3d at 1190. The Court of Appeals noted that “the term ‘engaged in con duct’ refers to the specific criminal acts addressed in subsequent instructions on the specific homicide offense charged and any lesser

- included offenses, ” and found that the instruction was neither confusing nor in need of clarification. Id . The court in Butcher noted that under the circumstances of that case, as it had been presented to the jury, the phrase “engaged in conduct” referred to both the actual killing of the victim and any act constituting aiding and abetting. Id

. The Butcher holding is sound and proper for application in this case. Here, as Adamcik points out , the State never expressly presented an aiding and abetting theory of first

- degree murder to the jury, and the jury was never instructed on it. The only conduct that the jury was inst ructed on regarding first

- degree murder may be found in J.I. 10, which reads, in relevant part, as follows:
COUNT 1 MURDER IN THE FIRST DEGREE That the said TOREY MICHAEL ADAMCIK, in the County of Bannock, State of Idaho, on or between the 22nd and 23rd d ays o f September, 2006, did willfully, unlawfully, deliberately, with premeditation and with malice aforethought, kill and murder Cassie Stoddart, a human being, by purchasing knives and stabbing Cassie Stoddart from which the victim died in Bannock County , Idaho.32 The specific conduct mentioned in J.I. 10 is “kill[ing] and murder[ing] Cassie Stoddart, a human being, by purchasing knives and stabbing Cassie Stoddart.”

“ [ W ] here the language of the indictment or information goes beyond alleging elements of

t he crime, it is mere surplusage that need not be proved. However, the inclusion of surplusage must not be allowed to prejudice a defendant in the context of his case.” Butcher , 137 Idaho at 134, 44 P.3d at 1189 (internal quotation marks omitted). Here, the inclusion of the words “purchasing knives ” was mere surplus age

. Reading J.I. 10 as a whole
, it is clear that the jury could not reasonably have concluded that it could convict Adamcik of first

- degree murder merely on a finding that Adamcik had purchased k nives. Not only is it readily apparent to any reasonable jury that one cannot “kill and murder” through the mere purchase of weaponry, but the language concerning the purchasing of the knives is phrased in the conjunctive with the language concerning the fatal stabbing itself. Furthermore, and as discussed at length in Part III.A.2, the State need not prove Adamcik inflicted the fatal wound, or any wound, so long as it proved he was an accomplice in Stoddart’s killing. For this same reason, J .I. 12 was not misleading to the jury and did not allow the prosecution to obtain a conviction without demonstrating that Adamcik killed or assisted in killing Stoddart

. J.I. 12 required the State to prove that Adamcik engaged in conduct causing
Stoddart’s death. Furthe r, J.I. 10 required that such conduct consist of killing with malice aforethought

. Although J.I. 10 could have been better worded so as to clarify that the State need
not demonstrate that Adamcik inflicted the fatal blow, we find that J.I. 10, in conjuncti on with
J.I. 12, can be reasonably interpreted to require that the State prove that Adamcik murdered, or helped Draper murder, Stoddart. Certainly
, the jury in this case understood the State’s theory that Adamcik and Draper
acted in concert to murder Stod dart: that Adamcik planned the murder; that he lay in wait with Draper to help carry out the murder; and that he i nflicted at least one stab woun d that could have
killed Stoddart . These theories of first

- degree murder are adequately described in the jury
i nstructions provided in this case by requiring that the jury find that Adamcik engaged in conduct
which caused Stoddart’s death. Thus, the trial court did not err in giving these instructions.
3

. The district court did not err in failing to provide the ju ry with a unanimity instruction requiring that each member of the jury agree on a specific act that Adamcik committed which caused Stoddart’s death.33 Adamcik argues, for the first time on appeal, that the district court erred in not providing the jury with a specific unanimity instruction. While conceding that in a typical case a general unanimity instruction (such as those provided in J.I. 26 and J.I. 27 here) suffices, Adamcik argues that here there is a genuine possibility that the jury may have been co nfused and that different jurors may have concluded that Adamcik committed different acts. Adamcik acknowledges that he did not raise this argument before the district court but contends that this
Court should nevertheless consider it under the fundamenta l error doctrine
, as it violates Adamcik’s right to a unanimous jury. The basis for Adamcik’s claim is that the murder charge in J.I. 10 listed two acts, “purchasing knives” and “stabbing Cassie Stoddart, ” and the conspiracy charge in J.I. 17 listed four acts which could have been found to have caused Stoddart’s death.
Adamcik also contends that this Court’s decision in State v. Nunez , 133 Idaho 13, 981 P.2d 738 (1999), was based on an erroneous reading of precedent and should be overruled. The State arg ues that Adamcik was only charged with killing Stoddart in one way, by stabbing her with a knife, and it would be unreasonable to read the jury instructions in any other manner. In addition, the State argues that, in accordance with State v. Severson , 147 Idaho 694, 215 P.3d 414 (2009), the unanimity requirement does not extend to a murder victim’s cause of
death. Idaho law requires a trial court to instruct a jury that, in order to convict a defendant, it must unanimously agree on the defen d ant’s guilt

. State v. Severson , 147 Idaho 694, 711, 215 P.3d 414, 431 (2009). “An instruction that the jury must unanimously agree on the facts giving rise to the offense, however, is generally not required.” Id. T here is an important exception to this general pr inciple “when a defendant commits several acts, each of which would independently support a conviction for the crime charged.” Id. Adamcik contends the exception applies here.
In support of his contention t hat he was entitled to a unanimity instruction, Adamci k cites
Miller v. State , 135 Idaho 2 61, 268, 16 P.3d 937, 944 (Ct. App. 2000). That case involved charges of sexual misconduct between the defendant and a young girl. Id. at 264, 16 P.3d at 940. There, the State could have properly charged the de fendant with six specific instances of sexual
misconduct. Id. at 261, 16 P.3d at 944. “The court reasoned that [a una nimity] instruction was

proper because each instance in which the [sexual misconduct] took place was ‘a separate
incident

— a distinct unio n of mens rea and actus reas separated by a discrete period of time and34 circumstance from any other such similar incident.” Severson , 147 Idaho at 711, 215 P.3d at 431 (quoting Miller , 135 Idaho at 268, 16 P.3d at 944).
In Severson , the defendant was not entitled to a unanimity instruction. In that case, the defendant was charged with a single count of first

- degree murder and a count of poisoning food
and/or medicine

. Id. at 701, 215 P.3d at 421 . The defendant argued that the jury could have
found h im g uilty of murder for killing his wife with sleeping pills, or suffocating her, or both.
Id. at 710, 215 P.3d at 430 . We concluded that “[a]lthough the evidence at trial showed that Severson could have murdered his wife by either overdosing her or suffocati ng her, it did not indicate that separate incidents involving distinct unions of mens rea and actus reas occurred.”
Id. at 712, 215 P.3d at 432

. Our analysis highlighted an obvious characteristic of murder : it is a
crime that cannot be perpetrated on the same victim twice

. See id. We thus held that absent any evidence that Severson engaged in the charged conduct

— i.e. , murdering his wife

— on more than one occasion, “the jury was not required to unanimously agree on the facts giving rise to the
offense. ” I d. In this case, Adamcik was charged with a single murder. There was no evidence that
Adamcik engaged in the charged conduct on multiple occasions; indeed, “[t]he very nature of the crime of murder eliminates this possibility.” Id. Thus, Adamcik was n ot entitled to a unanimity
instruction under existing precedent.
Furthermore
, Adamcik’s argument that some members of the jury may have convicted
him of murder for the act of “purchasing knives” as that phrase is included in J.I. 10
, is unavailing . T his claim has been dealt with above. Not only is the phrase in question properly viewed as surplusage, but even if the jury did not recognize it as such, it is phrased in the conjunctive with “and stabbing Cassie Stoddart. ” Therefore, there is no genuine poss ibility that the jury was confused as to whether they could convict Adamcik of first

- degree murder solely by finding that he purchased knives.
Adamcik’s other argument, that some “ jurors could have found that he engaged in conduct resulting [in] the death of [Stoddart] by finding that he committed any of the other alleged overt acts done in the furtherance of the conspiracy
, ” also fails. The jury was specifically instructed in J.I. 20, that: Each count charges a separate and distinct offense. You must de cide each count separately on the evidence and the law that applies to it, uninfluenced by your35 decision as to any other count. The defendant may be found guilty or not guilty on none, some, or all of the offenses charged.

Adamcik does not explain why th e jury would have disregarded this express instruction and considered the conduct alleged in Count 2 (conspiracy) when reaching a decision on Count 1 (first

- degree murder). Because Adamcik fails to support his position on this issue , we must conclude ther e is no genuine possibility that the jury was confused as to whether they could
convict Adamcik of first

- degree murder based on the conduct alleged under Count 2. See State v. Nunez , 133 Idaho 13, 19, 981 P.2d 738, 744 (1999) (noting that where the jury w as instructed to consider each count separately, this Court presumes that instruction was followed). Thus, the trial court’s lack of a unanimity instruction was not in error and therefore could not amount to
fundamental error. 4. The district court’s ju ry instructions regarding malice did not misstate the law nor lower the State’s burden of proof.
The district court provided the jury with four instructions regarding malice, J.I. 13

- A, J.I.
13

- B, J.I. 14 and J.I. 15. J.I. 13

- A reads: Any unlawful kill ing of a human being with malice aforethought is murder . If nothing further characterizes the killing, the murder is of the second degree. To constitute the higher offense of murder in the first degree, there must be willfulness, deliberation and premedi tation in addition to malice aforethought. Willfulness means that there was manifested a clear intent to take life. Deliberation and premeditation means done with reflection and conceived beforehand and not done upon a sudden heat of passion or other con dition precluding the idea of deliberation.
J.I. 13

- B provides that “[m]alice is the state of mind manifested by the doing of an unlawful and felonious act intentionally, deliberately, and without legal cause or excuse.” J.I. 14 states that “[m]alice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an aba ndoned and malignant heart.” Finally, J.I. 15 states: Malice aforethought exists when: 1. The evidence shows that the defendant deliberately intended to kill another human being without legal justification or excuse; or 2. The defendant intentionally engaged in conduct dangerous to another under circumstances which demonstrated an extreme indifference to the value of human life; or36 3. The defendant deliberately intended to kill as a result of provocation which the jury determines would not have cause d a reasonable person to have lost his self

- control and reason. Malice as used in these instructions does not require any ill will or hatred toward the person killed. Adamcik argues that J.I. 14 and J.I. 15 are inconsistent with Idaho Criminal Jury
Instru ction 702 9 and, when read as a whole, misinstructed the jury as to an essential element of the offense. Adamcik concedes that he did not object to the jury instructions on this ground at trial, but argues that the defective instructions amount to fundamen tal error. The State argues that the doctrine of invited error precludes Adamcik from raising any objection to the jury instructions regarding malice, as Adamcik acquiesced to that instruction being given (though he objected to J.I. 14 and J.I. 15 on othe r grounds). i. The doctrine of invited error does not bar Adamcik from challenging J.I. 14 and J.I. 15 on appeal. “The purpose of the invited error doctrine is to prevent a party who caused or played an important role in prompting a trial court to gi ve or not give an instruction from later challenging that decision on appeal.” State v. Blake , 133 Idaho 237, 240, 985 P.2d 117, 120 (1999). In Blake
, the district court provided the appellant with the proposed jury instructions, and his counsel stated “[ y]our honor, we would concur. We have nothing to say on the record at this time.” Id

. The State argued that this statement caused or prompted the district court to give the disputed instructions and that, therefore, the invited error doctrine should pre clude the appellant from challenging these instructions on appeal. Id . This Court disagreed, finding that the district court was merely giving the parties the opportunity to object to the instructions on the record, after having already decided which ins tructions to provide, and that the appellant had, therefore
, not invited any error by failing to object. Id

.

9 ICJI 702 reads as follows: Malice may be express or implied. Malice is express when there is manifested a deliberate intention unlawfully to kill a human being. Malice is implied when: 1. The killing resulted f rom an intentional act, 2. The natural consequences of the act are dangerous to human life, and 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. The word “aforethought” does not imply deliberation or the lapse of time. It only means that the malice must precede rather than follow the act.37 In State v. Caudill , the appellant, Caudill, argued that testimony offered by a detective regarding a conversation the detective had previously ha d with the Caudill’s codefendant violated Caudill’s Sixth Amendment right of confrontation. 109 Idaho 222, 225, 706 P.2d 456, 459 (1985). This Court found that, although the testimony in question would have constituted a violation of Caudill’s right to c onfrontation, the testimony had been brought out by the question of Caudill’s counsel, not the State. Id . at 226, 706 P.2d at 460. Therefore, the doctrine of invited error precluded reversal on those grounds. Id

. Here, Adamcik’s counsel did object to th e proposed jury instructions as they pertained to malice, though not on the grounds raised here. This was not identical to the situation in Blake , as some minor alterations were made to the jury instructions as a result of Adamcik’s objections, so
it cann ot be said that the trial court had already reached an absolute determination as to the exact instructions that would be offered. However, unlike the appellant in Blake , Adamcik did not state that he concurred with the Court’s proposed instructions, nor d id he himself request the instructions, so this case is not analogous to Caudill

. Thus, we hold that Adamcik is not precluded by the invited error doctrine from raising this issue on appeal
, as he did not encourage the district court to offer the specific malice instructions given , but merely failed to object.
ii. The trial court’s instructions in J .I. 14 and J.I. 15 did not constitute fundamental error

. Adamcik argues that the trial court erred in referencing “provocation” in J.I. 14 and 15, as
it was no t at issue under the facts of this case, is not part of ICJI 702, and could only serve to confuse the jury here. The State argues that it is nearly impossible to see how an issue so plainly inapplicable to the facts of this case would have been considered seriously enough to have confused the jury. Adamcik offers no explanation as to why any reference to provocation is likely to have created sufficient jury confusion to constitute error , much less fundamental error
, acknowledging that provocation was not at issue in this case. The references to provocation were plainly inapplicable to the facts at hand and there is no reasonable possibility that the jury would
have found otherwise

. Adamcik next argues that the use of the phrase “abandoned and malignant hea rt” in J.I. 14 is vague and confusing, and the phrase is not contained in ICJI 702. The State argues that any initial confusion that the phrase may have caused would have been resolved in J.I. 15, paragraph 2, which states that malice aforethought exists where “[t]he defendant intentionally engaged in38 conduct dangerous to another under circumstances which demonstrated an extreme indifference
to the value of human life.” I.C. § 18

- 4002 is titled “Express and implied malice” and provides that “[s]uch malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” It is not an error to give jury instructions that mirror the language of the statute
related to a crime. Holland v. Peterson , 95 Idaho 728, 518 P.2d 1190 (1974). Therefore, the reference to an “abandoned and malignant heart” did not constitute error. Adamcik contends that J.I. 15 is inconsistent with ICJI 702 in a way which decreases the State’s burden of proof. ICJI 702 states that malice may be implied where the “consequences of
the act are dangerous to human life ” a nd that act “was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life

. ” ( e mphasis added). In contrast, J.I. 15 states that malice aforethought may be found to exist where “the defendant intentionally

engage d in conduct dangerous to another under circumstances which demonstrated an extreme indifference to the value of human life .” (emphasis added).
Adamcik asserts that by requiring merely that an act be “dangerous to another
, ” rather than “dangerous to human life
, ” as required in ICJI 702, the court allowed the jury to find implied malice because Adamcik had committed an act dangerous to only the health of Stoddart, even where it did not constitute a danger to her life. The State argues that the only conduct
A damcik is alleged to have committed which would constitute murder under the theory advanced was the stabbing of Stoddart, which the jury could not reasonably have found to be dangerous to Stoddart’s health but not her life. Adamcik responds that, under th e arguments he has advanced
, the jury could have found that Adamcik committed an act dangerous to Stoddart’s health in purchasing knives or lying in wait. Since the jury could only have convicted Adamcik of first

degree murder by concluding that he a ctual ly stabbed Stoddart, and because it would be unreasonable to consider that conduct to be dangerous to Stoddart’s health and not her life, the deviation from ICJI on this point was not an error.
Adamcik next contends that the State’s burden was lowered wh ere J.I. 15 requires only that the circumstances of the act in question demonstrated an “extreme indifference to the value of human life, ” whereas ICJI 702 requires that the act be performed “with knowledge of the39 danger to, and with conscious disregard fo r human life.” The State responds that there is no meaningful difference between these two articulations as, in order to demonstrate extreme indifference, a defendant must necessarily appreciate the danger to human life; one cannot be
indifferent to somet hing with out being aware of it.
In People v. Estrada , the California Supreme Court examined the plain meaning of the phrase “reckless indifference to human life.” 904 P.2d 1197 (Cal. 1995). The Estrada Court

wrote:
We

. . . find that, when considered in its entirety

— as the phrase is presented to the jury

— “reckless indifference to human life” is commonly understood to mean that the defendant was subjectively aware that his or her participation in the felony involved a grave risk of death. The common mea ning of the term “indifference,” referring to “the state of being indifferent,” is that which is “regarded as being of no significant importance or value.” (Webster's New Internat. Dict. (3d ed. 1981) p. 1151, col. 1.) To regard something, even to regard i t as worthless, is to be aware of it. (See id. at p. 1911, col. 1 [“regard” is synonymous with “consider, evaluate, judge”].) Although the term “reckless”

— standing alone

— may arguably be understood in common parlance to mean simply neglectful, heedless, or rash (see Webster's New Internat. Dict., supra, at p. 1896, col. 1), when the word is placed in context within the statutory phrase “indifference to human life,” what is conveyed to the jury is more than mere negligence.
Id . at 1202 (bracketed alterati ons in the original). T he phrase “extreme indifference to the value
of human life” is functionally equivalent to the phrase “reckless indifference to human life.” We
are therefore persuaded by the analysis of the California Supreme Court in Estrada and h old that
in order to find that Adamcik had acted with “extreme indifference to the value of human life” he necessarily acted with “conscious disregard for human life” as required under ICJI 702.
We hold that the district court did not err in instructing the jury regarding malice, and the State’s burden of proof was not lowered through such instruction. 5. The district court did not commit fundamental error by instructing the jury on a lying

in

- wait theory of first

- degree murder after the State had aban doned that theory. Article I, section 8 of the Idaho Constitution states in relevant part that, “N o 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 th e public prosecutor . . . .” Where the charging terms of the Information or charging document have been altered, literally or in effect, a
constructive amendment has occurred. State v. Johnson , 145 Idaho 970, 973, 188 P.3d 912, 915 (2008) (citing United States v. Dipentino , 242 F.3d 1090, 1094 (9th Cir. 2001) ) . A variance40 requires a reversal only where “it deprives the defendant of his right to fair notice or leaves him open to the risk of double jeopardy.” State v. Windsor , 110 Idaho 410, 417

- 18, 716 P .2d 1182,
1189

- 90 (1985). “Whether there is a variance or constructive amendment is a question of law
over which this Court exercises free review.” Id . at 972, 188 P.3d at 915. Adamcik argues that the amended i nformation in this case did not include a lying

- in

- wait alternative theory for finding Adamcik guilty of first

- degree murder, yet J.I. 13 still retained such language. Adamcik again concedes that he did not object to J.I. 13 before the trial court, but that
this Court should nevertheless conside r this error as it constitutes fundamental error. The State acknowledges that the amended i nformation did not allege that Adamcik had committed first

degree murder by lying in wait, but argu es that there was no variance because lying in wait is merely a f orm of premeditation.
J.I. 13 reads: In order for the Defendant to be guilty of First Degree Murder, the State must prove that the murder: was perpetrated by lying in wait; or was willful, deliberate and premeditated killing. Premeditation means to consider beforehand whether to kill or not to kill, and then to decide to kill. There does not have to be any appreciable period of time during which the decision to kill was considered, as long as it was reflected upon before the decision was made. A me re unconsidered and rash impulse, even though it includes an intent to kill, is not premeditation. If you unanimously agree that the State has proven any of the above special circumstances beyond a reasonable doubt, then you must find the Defendant guilty of First Degree Murder. If you unanimously agree that none of the special circumstances have been proven beyond a reasonable doubt, you must may find the defendant guilty of Second Degree Murder. All other murder is murder of the second degree. ( s triket hrough in the original). Prior to 1977, I.C. § 18

- 4003 read, in part , “DEGREES OF MURDER. All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing is murder of the first degree.” S.L. 1977, ch. 154, §2.
Adamcik concedes that before 1977
, lying in wait was merely listed as a specific example of the type of conduct that would constitute a willful, deliberate and premeditated killing. Adamcik argues that the change m ade in 1977 to I.C. § 18

- 4003 (now I.C. § 18

- 4003(a)) altered the meaning behind the inclusion of the term “lying in wait” because the word “other” was deleted from the phrase “or by any other kind of willful.” Whether or not this interpretation is correc t, it41 is not reasonably likely that the jury found Adamcik guilty of lying in wait without also finding him guilty of killing in a willful, deliberate and premeditated fashion. As noted above, this Court considers the jury instructions as a whole in deter mining whether they fairly and accurately represent applicable law. State v. Zichko , 129 Idaho 259, 264, 923 P.2d 966, 971 (1996).
J.I. 13

- A reads as follows: Any unlawful killing of a human being with malice aforethought is murder. If nothing further c haracterizes the killing, the murder is of the second degree. To constitute the higher offense of murder in the first degree, there must be willfulness, deliberation and premeditation in addition to malice aforethought. Willfulness means that there was manifested a clear intent to take life. Deliberation and premeditation means done with reflection and conceived beforehand and not done upon a sudden heat of passion or other condition precluding the idea of deliberation. ( e mphasis added). Any confusion which may have been c reated by J.I. 13 is remedied in J.I. 13

- A , where the jury is unequivocally informed that they must find willfulness, deliberation and premeditation in order to convict Adamcik of first

- degree murder. A ny error committed in including the instruction on lying in wait is harmless and
, therefore
, necessarily not fundamental.
D . Closing Arguments.
1. Standard of Review Where prosecutorial misconduct was not objected to during trial
, this Court may only
reverse when that misconduct const itutes a fundamental error. State v. Perry , 150 Idaho 209,
227 , 245 P.3d 961, 979 (2010). A defendant’s right to a fair trial, under the Fourteenth
Amendment of the United States Constitution
, is violated where a prosecutor attempts to “have a jury reach its decision on any factor other than the law as set forth in the jury instructions and the evidence admitted during trial, including reasonable inferences that may be drawn from that
evidence.” Id

. Whether the trial court committed fundamental error is determined by the three

part Perry test set out above.
2. The State did not commit fundamental error during closing arguments. Adamcik argues that the State committed the following errors at closing argument: (1) appealing to the sympathy of the jurors toward the victim and her family; (2) misstating the law and evidence; (3) shifting the burden of proof and improperly vouching for its experts; and (4) quoting the biblical commandment that “thou shalt not kill” in an attempt to inflame the jury.
These arguments shall be examined in turn.42 i. The State im properly appealed to the jury’s sympathy for Stoddart and her family, but this did not constitute fundamental error. During closing arguments
, one of the prosecutors said the following:
Cassie Jo Stodda rt was born December 21st, 1989. On September 22nd, 2006, this defendant brutally and viciously murdered her. She was sixteen years old, ladies and gentlemen. Sixteen years old. Pictures such as this and fading memories are all that her family has left of her. They’ll never see her graduate. They’ll never see her get married. They’ll never see her have children. They’ll never see her grow old. They will never see her reach any of the great milestones

— any of the great achievements that she may have achieved throughout her life. Why? One reason. This defendant and Brian Draper wanted to be famous. They wanted to be famous, ladies and gentlemen. . . . Adamcik argues that this appeal to the jurors’ sympat hy for Stoddart’s family was an impermissibl e and inflammatory tactic
, seeking to influence the jury to reach its decision through
emotion rather than reason

. See , e.g. , State v. Phillips , 144 Idaho 82, 87, 156 P.3d 583, 588 (Ct. App. 2007) (noting that “appeals to emotion, passion or prejudice of the jury through use of inflammatory tactics are impermissible”).
In State v. Severson , this Court noted that:
I t is generally recognized that a prosecutor may not comment on the victim’s family during closing argument in order to appeal to the sympath ies of the jury. Such extraneous statements are considered improper because their only purpose is to encourage the jury to identify with the victim. Whether such comments constitute fundamental error, however, must be considered in the context of the ent ire trial. 147 Idaho 694, 720, 215 P.3d 414, 440 (2009) (internal citations omitted). In Severson , the prosecutor offered the following statements in closing rebuttal: “Mary Severson isn’t a decedent. Mary Severson was the 35

- year

- old mother of two bo ys. Mary Severson was the daughter of Carol Diaz. Mary Severson was the sister of Maria Gray. Mary Severson’s life had purpose, and it had meaning. Your duty today is to give her death justice.” Id . The prosecutor additionally
made reference to Sever son having spent her last Christmas with her family. Id . The Severson Court found that these statements by the prosecution, although arguably improper, did not

amount to fundamental error for several reasons: (1) the statements were not dwelled upon or

m ade in support of an argument that the defendant receive a harsher sentence; (2) the statements merely reiterated evidence offered previously during the trial; and (3) the district court had instructed the jury on several occasions that the prosecutor’s cl osing statements were not to be43 regarded as evidence. Id . This Court found that for these reasons the statements did not impact the fairness of the trial or deprive the defendant of due process. Id

. Here, like in Severson , the statements in question were not made or dwelled upon in support of a harsher punishment. Nor was any new evidence presented to the jury. Although the district court had not repeatedly emphasized to the jury that it should not consider the prosecutors’ closing statements to con stitute evidence, it had stated this once and included it in the jury instructions. 10 Looking at the evidence presented as a whole
, it cannot be said that Adamcik has shown that there is a reasonable possibility that the verdict would have differed had
thi s error not occurred. If the evidence presented did not convince the jury
, it is highly unlikely that the jury’s sympathy for Stoddart and her family would have changed its mind. Therefore,
we find that the prosecutors’ appeal to the jurors’ sympathy for Stoddart’s family was harmless
and
, thus
, did not constitute fundamental error.
ii. The State did not misstate the law and evidence

. During closing arguments the prosecu tion made reference to the BRC t ape and quoted Draper as having said, “We just ki lled Cassie.” Adamcik argues that this is a misstatement and misrepresentation of the evidence presented, as the BRC t ape cuts in midway through Draper’s sentence and only states “

— just killed Cassie.” The State responds that both Detective Thomas
and De tective Hamilton testified at t rial that, in watching the BRC t ape, they heard Draper say,
“W e just killed Cassie.” The State argues that, as this evidence had been presented during trial, it was not erroneous for the prosecution to repeat it during closi ng argument. “It is plainly improper for a prosecutor to mischaracterize the evidence adduced at trial.”
State v. Contreras

- Gonzales , 1 46 Idaho 41, 49, 190 P.3d 197, 205 (Ct. App. 2008). The first word that can be heard on the relevant port ion of the D VD copy of the BRC t ape that has been provided to this Court is “just.” Detectives Thomas and Hamilton testified that they heard Draper say “ w e just killed Cassie” based on their viewing of the original tape. It appears from watching the DVD copy that th e prosecutor may have misstat ed what Draper said on the BRC

t ape. However, even if this were the case
, it would not amount to fundamental error. The jury was provided with the actual BRC t ape during its deliberations, and it was played during trial. In addition, the jury heard Adamcik’s attorney, during closing argument,

10 Jury Instruction 2 stated, in relevant part, that “[t]he arguments and remarks of the a ttorneys involved in this case are intended to help you in understanding the evidence and applying the instructions, but they are not themselves evidence.”44 offer his opinion that Draper only said “just killed Cassie” and counsel strongly encouraged the jury to carefully listen to the BRC t ape. Where the closing statement was consistent wit h testimony offered during the trial, and where the jury was provided with the actual exhibit in question, it cannot be said that Adamcik has demonstrated a reasonable possibility that any error
here affected the outcome of the trial. Therefore
, even if a n error occurred here, it was harmless

. iii. The State did not improperly vouch for its experts or attempt to shift the burden of proof

. Adamcik first argues that the prosecution improperly vouched for its exp erts in telling the jury that “t he investigat ors did the best job they could.” In State v. Porter , this Court noted that “a prosecutor should avoid expressing a personal belief as to the credibility of a witness unless the comment is based solely on inferences from evidence presented at trial.” 130 Idaho 772, 786, 948 P.2d 127, 141 (1997). Here the prosecution stated its opinion, based on the evidence in the record, that the investigators in the case had conducted the best investigation that they could under the circumstances. The prosecutor did n ot offer an opinion as to the credibility of any
witness . As this statement is not vouching testimony, we find no error here. Adamcik next argues that the prosecution attempted to shift the burden of proof to the defense by arguing that the defense exper ts could have tested various pieces of evidence, which implicitly suggest s that the burden was on the defense to do so. During closing, in the context of discussing the expert testimony offered by Adamcik’s experts, the prosecution stated that:
all of the se items, including the photos Mr. Rammell showed you, of the droppings in the hallway were available to the defense to be tested the same as they were to the State. We felt that it wasn’t important enough to present that sort of evidence to you. They co uld have tested Cassie’s clothes. They could have tested those blood drops in the hallway. They could have tested the other knives that are in evidence. They could have tested the other shirt, the other pair of gloves, and all of the other items that we re in evidence. And they chose not to do that. Adamcik contends that these statements suggested that Adamcik had the burden of proof to
demonstrate his in nocence by testing the evidence and
, therefore
, was a misstatement of the law.
In United States v. V aandering , the Ninth Circuit Court of Appeals held that, so long as the prosecution does not draw attention to the defendant’s failure to testify, it may comment on the defendant’s failure to present exculpatory evidence. 50 F.3d 696, 701 (9th Cir. 1995). “Furthermore, comments intended to highlight the weaknesses of a defendant’s case do not shift the burden of proof to the defendant where the prosecutor does not argue that a failure to explain45 them adequately requires a guilty verdict and reiterates tha t the burden of proof is on the government.” Id . at 701

– 02.
Here , the prosecution never stated that Adamcik had the responsibility to test evidence and bring forth the results, nor did it draw attention to his failure to testify, it merely responded

to st atements made in closing by Adamcik’s counsel regarding the State’s failure to test certain evidence. In fact, later in rebuttal the prosecu tor reminded the jury that the S tate had the burden of proving each element of the crimes charged beyond a reasonab le doubt. As Adamcik’s counsel broached the subject of the State’s failure to forensically test some of the evidence, it is fair advocacy for the State to note that the defense also failed to test such evidence. Therefore,

n o error occurred here.
iv. Th e State ’s reference to the Bible did not constitute fundamental error. Adamcik contends that the prosecutor impermissibly tried to inflame the jury by quoting the biblical commandment, “Thou shalt not kill.” The BRC t ape was played by the State at trial, and on the tape Adamcik made comments to the effect that evil is a societal construct and murder is only wrong because it is against the law. Defense counsel questioned Shannon Adamcik about this videotape, and asked her whether Adamcik was an atheist; S hannon replied that he was not.
When asked how she knew that Adamcik was not an atheist Shannon answered “because we do
have B ible studies. We have done that with the kids ever since we were

— we say prayers. We bless our food and go to church. He’s just not an atheist.” The State argues that defense counsel opened the door to the discussion of religion both through this exchange and through the following statements made by defense counsel during closing: Even the atheism comment on there, listen to it. That’s probably as disturbing as anything to me when I first saw it because, frankly, think about it. If you can believe that someone doesn’t believe in God and they don’t have any morals in that sense, then they can do something horrible like that

— but you heard Shannon Adamcik testify. Did you believe her on that? Do you believe that they had a B ible study? Do you believe they do those things and pray? They do. In the context of his surrounding remarks, it is clear that defense counsel was attemptin g to support his theory that Adamcik believed he was only making a movie, and that his statements were merely following Draper’s lead. In rebuttal, the prosecution stated: Mr. Pearson talked to you about that little tirade that the defendant went on abou t whether or not Murder should be legal or illegal, and it shouldn’t be against the law, and the only reason it is, is to prevent people from doing things, but it makes people want to do it even more if you try to prohibit them.46 In our system, in our soci ety, Murder is wrong. It’s ethically wrong, it’s morally wrong, and it’s against the law. Tor ey Adamcik may have been smart

— and he was

— he did a lot of things to try and cover up this crime and to try and prevent the police from finding out it was him tha t did it, but he wasn’t smart enough to remember one simple phrase, and that is, “Thou shalt not kill.” A guilty verdict on both of these counts for Tore y Adamcik will tell him that

— “Thou shalt not kill.” The pros ecution’s closing rebuttal began by refere ncing Adamcik’s remarks on the videotape, but arguably went beyond the scope of a n appropriate response

. N onetheless, the remark was made in the context of defense counsel’s reference to Adamcik’s Bible study and to the BRC tape. When viewed in context, t he prosecutor’s comments cannot reasonably be construed as having been made principally to inflame the jurors , and we therefore decline to find
them in error

. E . The cumulative error doctrine does not necessitate a reversal

. Adamcik contends that the cum ulative error doctrine applies here, necessitating a reversal
of his convictions. “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 predic ate to the application of the doctrine is a finding of more than one error.” Perry , 150 Idaho at 230,
245 P.3d at 982

. Adamcik cites six alleged errors that, when aggregated, acted to deprive him of a fair trial. Five of the alleged errors

— failure to suppr ess the entirety of his interview and four
instructional errors

— have been determined by this Court not to have been i n error. The sixth
claim of error relates to the prosecutor’s closing argument. Although the appeal to the jury’s sympathy is of concern
, A damcik has failed to demonstrate at least two errors, a necessary predicate to the application of our cumulative error doctrine. F. The district court did not abuse its discretion in sentencing Adamcik to a fixed life sentence for first

- degree murder and a unified life sentence with thirty years fixed for conspiracy to commit first

- degree murder, nor did the district court abuse its discretion in denying Adamcik’s Rule 35 motion for a sentence reduction. 1. Standard of Review As this Court provided in S tate v. Stevens : The Court, when conducting its review of a defendant ’ s sentence, considers the entire length of the sentence under an abuse of discretion standard to determine its reasonableness. Where a sentence is within the statutory limits, the appel lant bears the burden of demonstrating that it is a clear abuse of discretion. In examining the reasonableness of a sentence, the Court conducts an independent review of the entire record available to the trial court at sentencing, focusing on47 the objecti ves of criminal punishment: (1) protection of society; (2) deterrence of the individual and the public; (3) possibility of rehabilitation; and (4) punishment or retribution for wrongdoing. “Reasonableness” of a sentence “implies that a term of confinement should be tailored to the purpose for which the sentence is imposed.” State v. Broadhead, 120 Idaho 141, 145, 814 P.2d 401, 405 (1991), overruled on other grounds by State v. Brown, 121 Idaho 385, 394, 825 P.2d 482, 491 (1992). In deference to the trial j udge, this Court will not substitute its view of a reasonable sentence where reasonable minds might differ. To show an abuse of discretion, the defendant must show that the sentence, in light of the governing criteria, is excessive under any reasonable vi ew of the facts. 146 Idaho 139, 148

- 49, 191 P.3d 217, 226

- 27 (2008) (internal citations omitted). However, the imposition of a fixed life sentence “requires a high degree of certainty that the perpetrator could never be safely released back into society o r that the nature of the offense requires that the individual spend the rest of his life behind bars.” Id . at 149, 191 P.3d 227 (quoting State v.
Cross , 132 Idaho 667, 672, 978 P.2d 227, 232 (1999)).
2. Adamcik has not shown a clear abuse of discretion by the district court. Adamcik argues that the district court abused its discretion in sentencing him to fixed life
for first

- degree murder and unified life with 30 years fixed for conspiracy to commit first

- degree murder. Adamcik argues that the sentenc e imposed by the district court was an abuse of discretion for three reasons: (1) it is impossible to tell that a juvenile is so lacking in rehabilitative potential that imprisonment until death is the only way to protect society; (2) imposing fixed life s olely based on the nature of the offense, without consideration of the nature
of the offense and the character of the offender
, violates established sentencing principles; and (3) the egregiousness of Adamcik’s offense is lessened by his immaturity and dim inished capacity. The State points out that the Idaho Court of Appeals in State v. Eubank stated that “a fixed life sentence may be deemed reasonable if the offense is so egregious that it demands an exceptionally severe measure of retribution and deterre nce, or if the offender so utterly lacks rehabilitative potential that imprisonment until death is the only feasible means of protecting society.” 114 Idaho 635, 638, 759 P.2d 926, 929 (Ct. App. 1988). In other words, even if the
district court were unce rtain about Adamcik’s rehabilitative potential, it could nevertheless impose a sentence of fixed life if it found the offense sufficiently egregious. The district court provided a clear articulation for the reasons it decided to sentence
Adamcik to an ind eterminate life sentence, with 30 years fixed
, for conspiracy to commit first

-48 degree murder, and fixed life for first

- degree murder. The court discussed the seriousness of the offense, stating “the nature of the offense here you’ve both committed is, of c ourse, the most serious we have in our society.” The district court considered the evidence Adamcik’s experts offered as to his mental capacity and potential for rehabilitation, but ultimately concluded beyond a reasonable doubt
, after reviewing all the e vidence, that Adamcik would kill again if
released.
In State v. Windom , this Court recently upheld the determinate life sentence of a minor, based solely upon the nature and gravity of the offense. 150 Idaho 873, 253 P.3d 310, 314 ( 2011). Windom was a 16

- year

- old who had been convicted and sentenced to fixed life for the
second

- degree murder of his mother. Id. at 875,253 P.3d at 312. On appeal, the C ourt considered whether the district court had abused its discretion in sentencing Windom to fixed life and concluded that the severe and egregious nature of the crime was sufficient on its own to justify
the fixed life sentence. Id . at 880

- 84, 253 P.3d at 317

- 18. The circumstances of the case at hand share commonalities with those present in
Windom . Both Ad amcik and Windom were approximately the same age at the time they committed their crimes. Both shared an unhealthy obsession with fictionalized violen t serial killers. Both brutally murdered people close to them without the slightest provocation. In lig ht of the excessively heinous nature of the crime committed here, the premeditated and calculated stabbing of a friend for the apparent purpose of gaining fame as a serial killer, this Court find s that Adamcik has failed to demonstrate a clear abuse of dis cretion by the district court. It is unnecessary for this Court to examine Adamcik’s potential for rehabilitation. 3. The district court did not abuse its discretion in denying Adamcik’s Rule 35 motion.
As this Court stated in State v. Farwell : Rule 35 is a narrow rule which allows a trial court to correct an illegal sentence or to correct a sentence imposed in an illegal manner. Generally, whether a sentence is illegal or whether it was imposed in an illegal manner is a question of law, over which we exercise free review. However, if the basis for the illegality of the sentence is that the sentence is excessive, and the sentence is within the statutory limits, a motion for reduction of sentence under Rule 35 is a plea for leniency, and this Court w ill then review a denial or grant of the motion for an abuse of discretion. “When presenting a Rule 35 motion, the defendant must show that the sentence is excessive in light of new or additional information subsequently provided to the district court in support of the Rule 35 motion. An appeal from the denial of a Rule 35 motion cannot be used as a vehicle to renew the underlying sentence absent the presentation of new information.”49 144 Idaho 732, 735, 170 P.3d 397, 400 (2007) (internal citations omitted ) (quoting State v. Huffman , 144 Idaho 201, 203, 159 P.3d 838, 840 (2007)). Adamcik presented no new information pertaining to his sentence for either offense so as
to invoke Rule 35. He argues that he presented additional evidence in the form of an audio tape where Draper allegedly takes responsibility for the “Black River Story.” Adamcik argues that because the district court took into consideration his belief that Adamcik was involved in writing the Black River Story in determining that a fixed life sen tence was appropriate, this new information should change that determination. However, even if we accept Adamcik’s argument, we still cannot find an abuse of discretion by the district court in denying his Rule 35 motion.
G

. A damcik’s life sentence does not constitute cruel and unusual punishment under Article I, section 6 of the Idaho Constitution. 1. Standard of Review
Our standard of review for claims of cruel and unusual punishment under Article I,
section 6 of the Idaho Constitution was concisely s ummarized by this Court in State v. Grazian
as follows: When reviewing a claim of cruel and unusual punishment the Court uses a proportionality analysis limited to cases which are out of proportion to the gra vity of the offense committed. The Court compar es the crime committed and the sentence imposed to determine whether the sentenc e is grossly disproportionate. This gross disproportionality test is equivalent to the standard under the Idaho Constitution which focuses on whether the punishment is so out of proportion to the gravity of the offense to shock the conscience of reasonable people. An intra

and inter

- jurisdictional analysis is appropriate only in the rare case where the sentence is grossly disproportionate to the crime committed. 144 Idaho 510, 517, 164 P.3d 790, 797 (2007) (internal quotations and citations omitted)

. “Where reasonable minds might differ as to the sufficiency of time of confinement, the
discretion vested in th e sentencing court in imposing sentence will be respected.” State v.
Broadhead , 120 Idaho 141, 145, 814 P.2d 401, 405 (1991), overruled on other grounds by State

v. Brown , 12 1 Idaho 385, 825 P.2d 482 (1992).
2. Adamcik’s fixed life sentence does not constitute cruel and unusual punishment in light of his conviction for f irst

- degree murder.
Adamcik argues that his fixed life sentence shocks the conscience of reasonable people, and is thus cruel and unusual punishment under Article I, section 6 of Idaho’s Constitution. Adamcik argues that the cruel and unusual nature of h is sentence is demonstrated by: (1) the international rejection of fixed life sentences for juvenile offenders; and (2) the50 disproportionality between his fixed life sentence, on the one hand, and the lesser sentences given to other juveniles convicted of first

- degree murder in Idaho, on the other. In support of his disproportionality claim, Adamcik incorrectly states that Idaho has never upheld a fixed life sentence for a juvenile offender. However, as noted above, a fixed life sentence for a minor was ju st recently upheld in State v. Windom

. Conversely, the State argues that Adamcik’s sentence does not constitute cruel and unusual punishment because Adamcik has failed to show that a gross disproportionality exists
between his sentence and his crimes. Th e State adheres to the notion that a fixed life sentence is appropriate for an offender convicted of first

- degree murder. The State does not address whether Adamcik’s status as a juvenile is relevant in determining whether a gross disproportionality
exist s. In State v. Brown , this Court adopted the cruel and unusual punishment test proposed by Justice Kennedy in his concurrence in Harmelin v. Michigan , 501 U.S. 957 (1991) (Kennedy, J., concurring), requiring courts to “make a threshold comparison of the crime committed and the sentence imposed to determine whether the sentence leads to an inference of gross disproportionality
, ” thus rendering it unconstitutional. 121 Idaho 385, 394, 825 P.2d 482,
491 ( 1992).
To determine whether a sentence is cruel and unusual , this Court engages in a two

- part inquiry. First, this Court must “make a threshold comparison of the crime committed and the sentence imposed to determine whether the sentence leads to an inference of gross disproportionality .” Brown , 121 Idaho at 394, 825 P.2d at 491. Where no inference of a gross disproportionality can be made, “there is no necessity to make any further proportionality
review.” Id. at 394, 825 P.2d at 491. However, “[i]f an inference of such disproportionality is found, [the Court] must conduct a proportionality analysis comparing [the defendant’s] sentence to those imposed on other defendants for similar offenses.” State v. Olivera , 131 Idaho 628, 632, 962 P.2d 399, 403 (Ct. App. 1998).
In State v. Thomas
, the defendant was sentenced to fixed life after she pled guilty to the murder of her ailing boyfriend
, as well as illegally collecting money from his social security and pension funds for eleven years following the murder. 133 Idaho 682, 685

- 88, 991 P.2d 870, 873

- 76 (Ct. App. 1999). While analyzing Thomas’s cruel and unusual punishment claim, the Idaho Court of Appeals found that because “Thomas and her son premeditated the heartless and greed

-51 motivated murder of her ailing seventy

- three year old boyfriend

. . . [her] sen tence [was] not grossly disproportionate to her crime and does not shock the conscience of reasonable people.”
Id. at 687, 991 P.2d at 875. Consequently, the court found that it was “not necessary to conduct any further proportionality review” because no disproportionality existed. Id. Likewise, in State v. Brown
, where the defendant “forced a female employee into a back room, beat her on the head with a brick, raped her, stabbed her twice in the chest with a knife,
and cut her throat
, ” this Court upheld Brown’s fixed life sentence even though the victim survived the incident. 121 Idaho 385, 394, 825 P.2d 482, 491 (1992). Addressing Brown’s cruel and unusual punishment claim, this Court stated that “[t]he gravity of the offense in this case was

very gre at. Brown not only raped the victim but almost killed her.” Id . at 394, 825 P.2d at 491.
This court went on to “conclude that Brown ’ s sentence is not out of all proportion to the gravity of the offense, nor is the sentence so severe as to shock the cons cience of reasonable people.” Id.
Thus
, in Brown “there [was] no necessity to make any further proportionality review.” Id. Similarly, in State v. Shanahan , the court found that concurrent unified life sentences for a juvenile appellant who perpetrated a “premeditated and cold

- blooded” murder were not out of proportion to the gravity of the offense committed such as to shock the conscience of reasonable people. 133 Idaho 896, 900, 994 P.2d 1059, 1063 ( Ct. App. 1999). The appellant in Shanahan
entered a convenience store and snuck down the aisles until he stood behind the clerk ; he then raised his gun and fired, killing the clerk. Id. at 898, 994 P.2d at 1061. Shanahan then removed

money from the cash register and left. Id. The court found that a pro portionality review was not necessary given that no inference of a gross disproportionality existed

. Id. at 900, 994 P.2d at
1063. Adamcik’s fixed life sentence does not constitute cruel and unusual punishment under
Article I , section 6 of Idaho’s C onstitu tion because no gross disproportionality exists in this case. Adamcik conspired, carefully plan n ed and executed the cold

- blooded stabbing death of his fellow high school student, Stoddart, based solely on his desire to achieve fame as a serial killer.
Li ke the heinous crimes committed by the defendants in Thomas and Brown , whose fixed life sentences were upheld on appeal, the gravity of the first

- degree murder that Adamcik committed supports the severity of his fixed life sentence. Furthermore, the fact that Adamcik’s fixed life sentence falls within the sentencing parameters set out in I.C. § 18

- 4004 (entitled “Punishment52 for murder”) indicates that no disparity exists between the sentence imposed by the trial court and the gravity of Adamcik’s crime.
B ecause we do not find the existence of a gross disproportionality, we decline to consider any of Adamcik’s proportionality arguments because “intra and inter

- jurisdictional” analysis is only proper where the Court makes an initial finding that a gross disp roportionality exists. State v. Matteson, 123 Idaho 622, 626, 851 P.2d 336, 340 (1993). Adamcik’s argument that this Court should find his sentence to be cruel and unusual due to Adamcik’s minority and the growing international rejection of life imprison ment for minor offenders is without merit. This Court has
never held that extra

- jurisdictional international conventions shall be considered in any way in interpreting and applying the Idaho Constitution. Adamcik’s sentence comports with Article I,
secti on 6 of Idaho’s Constitution and is not cruel and unusual.
IV. CONCLUSION
We hold that: (1) the jury was provided with sufficient evidence from which it could reasonably find beyond a reasonable doubt that Adamcik was guilty of murder in the first degre e ; (2) the district court did not err in denying, in part, Adamcik’s motion to suppress; (3) even if errors were committed in providing jury instructions, those errors were harmless; (4) the prosecution committed no fundamental error in closing arguments; (5) the doctrine of cumulative error does not necessitate a reversal; (6) the district court did not abuse its discretion in sentencing Adamcik; (7) the district court did not abuse its discretion in denying Adamcik’s Rule 35 motion; and (8) Adamcik’s sent ence does not constitute cruel and unusual punishment under
the Idaho Constitution. Adamcik’s convictions and sentences are therefore affirmed.

Justices EISMANN CONCUR S

.

Justice W. JONES, specially concurring: I concur in the Court’s Opinion, but wri te separately in order to reconcile my dissent in
State v. Windom , 150 Idaho 873, 253 P.3d 310 (2011), with the Court’s holding here in Section III.F.2 affirming Adamcik’s fixed

- life sentence. In Windom , I stated that the district court
abused its discret ion when it imposed a fixed

- life sentence on a sixteen

- year

- old with a severe mental illness because an offender’s individual characteristics are relevant to the reprehensibility of a crime, contrary to the majority’s holding that these individual characte ristics need not be53 taken into consideration in determining reprehensibility. 150 Idaho at 884

– 85, 253 P.3d at 321

– 22. As I explained there, “[a] crime is less reprehensible

— and therefore potentially less deserving of severe retribution

— if the criminal h as personally mitigating circumstances.” Id. at 884, 321. The Court here analogizes this case to Windom and holds, consistent with the majority
in Windom , that the nature of the crime alone is sufficient to support the fixed

- life sentence.
Under the fac ts of this particular case, I agree with the Court’s conclusion affirming the fixed

- life sentence, but not its rationale. The district court’s imposition of a fixed

- life sentence here is consistent with my dissent
in Windom because, given Adamcik’s indivi dual characteristics, the reprehensibility of this crime fully supports the fixed

- life sentence. There are substantial and important differences between
the facts of Windom and this case. The one main similarity between the two cases is that both
Adamcik and Windom were 16 years old and committed murder in a particularly heinous way: Adamcik by stabbing a friend to death with a knife and Windom by beating his mother to death with a dumbbell. However, other than their respective ages at the time the crime s were committed, I do not find parallels in their individual characteristics such that I believe the district court abused its discretion in imposing a fixed

- life sentence on Adamcik. Windom, on the other hand, had a psychotic disorder, paranoid schizoph renia, which caused him to kill his mother. Id.
at 885

– 86, 322

– 23. Adamcik had no such psychotic disorder. The only evidence here relates to personality disorders, not psychosis. The record indicates that Adamcik was “immature” and that he may have had Attention Deficit Hyperactive Disorder and a learning disability, but there was no suggestion this caused him in any way to murder Stoddart. Adamcik’s doctor testified that Adamcik did not have any “pathological drive or pathological desire that he would personally harbor, that would have led him to these offenses,” and that there was no evidence of sociopathy. Rather, as shown in Adamcik and Draper’s video tape, the evidence shows that Adamcik murdered Stoddart in an attempt to achieve fame in the same manner as the Columbine killers. While it is true that Windom had a similar obsession with serial killers and violence, as I wrote in that case, “[t]here is no indication that Ethan’s offensive actions, remorselessness, and grandiose statements were anyt hing but his psychosis manifesting itself.” Id. at 886, 323. The facts here simply do not indicate that a serious mental illness caused Adamcik to kill.54 Also, in contrast to Adamcik, Windom reported his homicidal thoughts to authority figures and contin ually sought help weeks before the murder for his mental illness which was driving him toward violence and homicide. Id. at 886

– 87, 323

– 24. Adamcik on the other hand secretly plotted and planned the murder days before the killing, which was to be a tune

- up or practice before other intended killings. Because I believe that the reprehensibility of the crime fully supports the fixed

- life sentence imposed here, I agree with the Court that there is no need to consider rehabilitation in this case, and that A damcik’s sentence was not an abuse of discretion and should be affirmed.

BURDICK, C. J., dissenting as to Part III.A.2 and concur ring with Justice Horton’s
dissent on Part III.C. 2. I agree with the remainder of the majority opinion. My heart goes out to the Stoddart family, friends and the Pocatello community for having to deal with this especially senseless, horrible act, but I feel I must dissent. Although I have no doubt that Adamcik could have been convicted of first

- degree murder
under either a felo ny

- murder or aiding

- and

- abetting theory, had they been presented to the jury, I am unable to concur with the majority’s finding that sufficient evidence was presented to the jury to support Adamcik’s conviction of first degree murder based upon an aiding a nd abetting theory. Therefore , I respectfully dissent as to P art III.A.2 of the majority’s opinion and with its decision affirming Adamcik’s conviction for first

- degree murder. The jury was presented with no evidence as to the ordering of the stab wound s, nor the timeline over which they took place. Based upon the instructions given, when applied to the evidence presented, I cannot find that the jury reached its verdict, that Adamcik committed first

degree murder, upon substantial and competent evidence

. 1. The State presented insufficient evidence to support a jury conviction that Adamcik was the direct perpetrator of first

- degree murder

. The majority finds that there was sufficient evidence to support a jury finding that: (1)
two knives were used to murder Stoddart; (2) both knives inflicted potentially fatal wounds; and (3) one of the knives was used by Adamcik to inflict a potentially fatal stab wound. It is questionable whether sufficient evidence is in the record to support a finding that Adamcik actually stabbed Stoddart, but assuming there was, these findings are insufficient to uphold the
verdict entered.55 Dr. Skoumal performed the autopsy in this case and testified that Stoddart’s cause of death was “stab wounds to the trunk”. The majority i nterprets that finding as necessarily indicating that multiple stab wounds caused Stoddart’s death. However, in light of Dr. Skoumal’s testimony as a whole, I find that Dr. Skoumal was testifying that he could not determine which particular wound(s) cause d her death. On cross examination, Dr. Skoumal stated that the “cause of death is stab wound to the trunk” and then “[t]he cause of death was stabbing to the trunk; that’s how it was done.” This interpretation is consistent with Dr.
Skoumal’s overall te stimony, in which he never identifies specifics about the manner of death, and only identifies certain wounds as “potentially fatal”. Thus, Dr. Skoumal’s testimony does not support a finding that Stoddart necessarily died of more than one stab wound but, rather, that
one or more stab wounds caused her death. There was no evidence presented supporting a conclusion that Adamcik inflicted a wound which caused, contributed to, or accelerated Stoddart’s death. If Adamcik did not inflict a
wound while Stoddart was still alive his conviction would be barred by the doctrine of legal impossibility. See United States v. Hsu , 155 F.3d 189, 199 (3d Cir. 1998) (“The common law distinguishes between two types of impossibility

— legal and factual

— and provides that the
for mer is a defense while the latter is not. . . . For example, legal impossibility occurs when A shoots a corpse believing it to be alive and intending to commit murder; the attempt does not amount to murder even if completed.”). Where Dr. Skoumal, who perf ormed the autopsy on Stoddart, could not determine which wound was fatal, or how many wounds caused her death, I cannot find that there was substantial evidence supporting a jury finding that Adamcik inflicted a
stab wound from which Stoddart died. Some w ounds are described as “potentially fatal,” each could have been fatal on its own, but Dr. Skoumal could not determine when each wound was inflicted. Furthermore, during cross

- examination, the State’s expert Dr. Garrison testified that, in his opinion, so me of the wounds were inflicted post

- mortem. Dr. Garrison noted that some of the wounds “would be potentially fatal, but it was my opinion the person was no longer viable and so, therefore, it would not have been a fatal wound under the circumstances. If you stab a person in the heart but if they’re already dead, it’s not a fatal wound.”
2 . The jury could not have found Adamcik guilty of first

- degree murder under an aiding

- and

abetting theory where the State failed to argue that theory and the jury was not instructed on it.56 Additionally, I wish to address the State’s argument that Adamcik’s conviction could be affirmed under an aiding

- and

- abetting theory of commission even though the jury was not instructed on that theory. Idaho Code § 18

- 204 defines “pr incipals” as: All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense or aid and abet in its commission, or, not being present, have advised and encouraged i t s commission . . . are principals in any crime so committed. Idaho Code § 18

- 205 states:
All persons are accessories who, having knowledge that a felony has been committed: (1) Willfully withhold or conceal it from a peace officer, judge, magistrate, gr and jury or trial jury; or (2) Harbor and protect a person who committed such felony or who has been charged with or convicted thereof. Idaho Code § 19

- 1430 abolishes the distinction between principals and accessories before the
fact , providing:
T he distin ction between an accessory before the fact and a principal and between principals in the first [ 11 ] and second [ 12 ] degree, in cases of felony, is abrogated; and all persons concerned in the commission of a felony, whether they directly commit the act constitu ting 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 aga inst his principal.
In State v. Johnson , this Court noted that “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.” 145 Idaho 970, 973, 188 P.3d 912, 915 (2008). The State argues that even if the evidence submitted was only sufficient to convict Adamcik under aiding

- and

- abetti ng (or accomplice) liability, he has failed to show that the district court’s failure to instruct the jury on accomplice liability was fundamentally unfair. The State contends that, as Idaho has abolished the distinction between direct perpetrator s and

ac cessories, Adamcik’s right to a fair trial could not have been violated where the evidence at trial was sufficient to support his conviction, regardless of the theory argued. Adamcik argues that the State did not contend at trial that Adamcik was guilty o f first

- degree murder by aiding

11 A principal in the first degree is “[t]he perpetrator of a crime.” Black’s Law Dictionary 1312 (9 th ed. 2009). 12 A principal in the second degree is “[o]ne who helped the perpetrator at the time of the crime.” Black’s Law Dictionary 1312 (9th ed. 2009).57 and abetting, nor was the jury instructed on this theory and, therefore, the jury could not have convicted Adamcik for aiding and abetting, but only for actually killing Stoddart. The State argues that Adamcik never reque sted that the district court instruct the jury on aiding and abetting and has failed to show that the district court’s failure to so instruct constituted fundamental error. The State’s argument is misguided. It was the State’s duty to request that the ju ry be instructed regarding a theory of aiding and abetting if the State wished the jury to consider that theory in its deliberations. The district court’s failure to instruct the jury on aiding and abetting was neither fundamental error nor harmless error ; it was no error at all. The State made a tactical decision to try Adamcik as a direct perpetrator of first

- degree murder and not under an aiding

- and

- abetting theory. The jury heard no argument on an aiding

- and

abetting theory and was not instructed on an aiding

- and

- abetting theory; therefore, it necessarily
must have convicted Adamcik of committing first

- degree murder as a direct perpetrator

. It is the most fundamental tenet of a fair trial that a defendant may only be convicted for
the crimes with whic h he is charged, this Court may not affirm a conviction on a theory that was never presented to the jury. McCormick v. United States , 500 U.S. 257, 270 n.8 (1991). As the United States Supreme Court stated in McCormick : This Court has never held that the right to a jury trial is satisfied when an appellate court retries a case on appeal under different instructions and on a different theory than was ever presented to the jury. Appellate courts are not permitted to affirm convictions on any theory they pl ease simply because the facts necessary to support the theory were presented to the jury.
Id

. See also De Jonge v. Oregon , 299 U.S. 353, 362 (1937) (“Conviction upon a charge not made would be sheer denial of due process.”) Therefore, we could not affirm Adamcik’s
conviction for first

- degree murder on a theory of aiding and abetting. Had the State charged Adamcik with attempted first

- degree murder, first

- degree murder under an aiding

- and

- abetting theory, or even felony murder, there is no doubt that subst antial and competent evidence was presented that would have supported the jury’s verdict. Recognizing
that State v. Johnson , 145 Idaho 970, 974, 188 P.3d 912, 916 (2008), had not been released at the time of Adamcik’s trial, under the reasoning of that de cision the State could have requested aiding

- and

- abetting instructions at the close of its evidence, even though the Information against Adamcik did not allege a theory of aiding and abetting. However, by charging Adamcik solely
with first

- degree murder and failing to offer any direct or circumstantial evidence to support the jury’s verdict that Adamcik actually inflicted a fatal stab wound, the State failed to present58 sufficient evidence to support a finding that each element of first

- degree murder as ch arged had been proven beyond a reasonable doubt. I must respectfully dissent as well as join Justice Horton’s dissent. I agree with the remainder of the majority’s opinion

.

HORTON, J., concurring in part and dissenting in part. I join in Chief Justice B urdick’s dissent from Part III.A .2 of the Court’s opinion. I also dissent from Part III.C.2. Although I would vacate Adamcik’s sentence for first degree murder, I agree with the reasoning advanced in the remainder of the Court’s opinion. I will approach the two sections of the opinion from which I dissent in a different sequence than did the majority. I do so because the issue of the sufficiency of the evidence presented at trial to support the verdict is defined by the question presented to the jury fo r its determination. My disagreement with the majority flows from my conviction that this Court may not evaluate the sufficiency of the evidence presented at trial on a theory upon which the jury was not instructed. The majority’s opinion does not contai n an explicit statement of the premises upon which it rests. A careful reading of the majority’s decision regarding the sufficiency of the evidence and the discussion relating to J.I. 10 and J.I. 12 reveals that the decision ultimately rests upon
the fol lowing premises: (1) a jury need not be “expressly” instructed as to the law of principal liability based upon a theory of aiding and abetting another in the commission of a crime; and (2) this Court may disregard the instructions that the jury was provid ed which articulate the theory upon which the defendant was charged and view the sufficiency of the evidence as to a theory upon which the defendant may have been charged and for which jury instructions would have
been appropriate. In accepting these prem ises, I believe that the majority has overstepped its appellate role and assumed the duties of the trier of fact. For that reason, I believe that my fellow dissenter has properly quoted Justice White’s statement in McCormick v. United States
, 500 U.S. 257 (1991): This Court has never held that the right to a jury trial is satisfied when an appellate court retries a case on appeal under different instructions and on a different theory than was ever presented to the jury. Appellate courts are not permitted t o affirm convictions on any theory they please simply because the facts necessary to support the theory were presented to the jury.
Id . at 270 n. 8.59 Part III.C.2 I agree with the proposition advanced by the majority that a prosecutor’s inform ation does not have to allege that a defendant aided and abetted another in the commission of a crime. Indeed, this is a proposition that this Court has consistently accepted for more than sixty years, beginning with the decision in State v. Ayres, 70 Ida ho 18, 27

- 28, 211 P.2d 142, 147 (1949) (“he is presumed to know that he would be a principal and guilty as such whether he directly committed the acts charged or aided and abetted in the commission by another”) through our most recent decision on the subje ct in State v. Shackelford , 150 Idaho 355, ___, 247 P.3d 582,
605

- 06 (2010) (rejecting defendant’s claim of error in giving aiding abetting instruction due to absence of allegation in indictment that defendant aided and abetted another). However, I do no t view the critical issue presented in this appeal (at least as it relates to the conviction for first degree murder) as whether Adamcik’s due process rights were implicated. Rather, the related questions are (1) What charge did the jury receive? and (2) Does the majority’s holding violate Adamcik’s right to trial by jury? The majority concludes Part III.C.2 with the following statement:
Certainly, the jury in this case understood the State’s theory that Adamcik and Draper acted in concert to murder S toddart: that Adamcik planned the murder; that he lay in wait with Draper to help carry out the murder; and that he inflicted at least one stab wound that could have killed Stoddart. These theories of first

- degree murder are adequately described in the j ury instruction provided in this case by requiring that the jury find that Adamcik engaged in conduct which caused Stoddart’s death. I do not agree that the instructions may reasonably be interpreted as instructing the jury as to the State’s theory that “Adamcik planned the murder; that he lay in wait with Draper to help carry out the murder; and that he inflicted at least one stab wound that could have killed Stoddart.” Rather, as the majority recognizes, “[t]he only conduct that the jury was instructe d on regarding first

- degree murder” is found in J.I. 10, which set forth the charging language of the
information. J.I. 10 alleged that Adamcik murdered Stoddart “by purchasing knives and stabbing
Cassie Stoddart from which the victim died in Bannock Cou nty, Idaho.” I agree with the majority’s conclusion that the reference to “purchasing knives” is mere surplusage. Thus, the only theory of murder upon which the jury was instructed is that Adamcik engaged in the conduct of “stabbing Cassie Stoddart from which the victim died.” Although the jury60 undoubtedly understood that the State’s evidence showed that “Adamcik planned the murder; that he lay in wait with Draper to help carry out the murder; and that he inflicted at least one stab
wound that could have killed Stoddart,” the jury was simply not instructed on these theories of liability. The charge of first degree murder set forth in the Information did not allege that Adamcik planned the murder, nor did it allege that he lay in wait with Draper to help carry out the murder, nor did it allege that Adamcik inflicted at least one stab wound that could have killed Stoddart. Rather, the State elected to charge Adamcik as the person who slayed Cassie Jo Stoddart, alleging that he murdered Stoddart by “stabbi ng Cassie Stoddart from which the victim died.” 13 The instructions given by the district court reflected the theory upon which the State elected to charge Adamick with first degree murder. For that reason, I am deeply troubled by the majority’s certainty that “the jury in this case understood the State’s theory that Adamcik and Draper acted in concert in the commission of this murder. . . .” Although the jury may well have intuited that one who participates in a killing may be accountable for that act, it is undisputed that the district court did not instruct them as to the law governing the principal liability of an
aider

- and

- abettor. The majority’s statement appears to disregard this Court’s oft

- stated presumption that a jury follows the instructions th ey have received. S ee e.g

. Phillips v. Erhart
, 151 Idaho 100, ___, 254 P.3d 1, 10 (2011). Instead, the majority appears to presume that the jury disregarded the instructions they were given in order to reach “the right result” based upon the evidence pre sented at trial. The majority, when discussing the adequacy of the jury instructions, states: “[A]s discussed at length in Part III.A.2, the State need not prove Adamcik inflicted the fatal wound, or any wound, so long as it proved he was an accomplice i n Stoddart’s killing.” This statement ignores the fact that the only “conduct which caused the death of Cassie Jo Stoddart” which was the subject of instruction is that contained in the Information.

13 The State’s election to charge Adamcik as the individual who stabbed Stoddart to death is inexp licable, inasmuch as the State had previously persuaded a jury beyond a reasonable doubt that Brian Draper murdered Stoddart by “stabbing Cassie Stoddart from which the victim died.” (Although it is not part of the record in this appeal, before Adamcik’s trial, Brian Draper was convicted of first degree murder for his role in Stoddart’s slaying. The language in the information setting forth the charge of first degree murder in that case was identical to that used in this case, save for the identity of Sto ddart’s alleged killer.) I take it as a given that a person may be murdered only one time. Thus, I am utterly baffled by the State’s decision not to request an instruction relating to Adamcik’s liability as a principal for aiding and abetting Draper in t he commission of the murder.61 Although the majority relies on Ayres and State v. Owe n , 73 Idaho 394, 253 P.2d 203 (1953), in its discussion of the sufficiency of the evidence that Adamcik aided and abetted in Stoddart’s killing (which is incorporated into its analysis of the jury instructions in Part III.C.2),
neither of these cases stand s as precedent for the proposition that the jury charge need not articulate the grounds upon which a defendant may be found liable as a principal for the criminal
acts of another.
In Ayres , this Court upheld a conviction for involuntary manslaughter in a c ase where the jury found that another, Arthur Trautman, was the driver at the time of a head

- on collision which killed five people, including Trautman. This Court found that sufficient evidence supported the defendant’s conviction as a principal on a theo ry of aiding and abetting, 70 Idaho at 27

- 28, 211 P.2d at 147, although the information charged that Ayres “did wilfully, unlawfully, and feloniously drive and operate said motor vehicle....” Id . at 24, 211 P.2d at 144

- 45. However, it is significant that t he jury was explicitly charged in the jury instructions as to the legal theory upon which Ayres could be found guilty of the charge, even if he were not the driver. 14

In Owen , two defendants (Owen and Hastings) appealed their convictions and sentences
for first degree murder, arising from the shooting death of Bert McCurry, the owner and operator of a grocery store, in the course of a robbery. 73 Idaho at 400, 253 P.2d at 205

- 06. The majority quotes a small portion of the Owen decision and concludes that “Defendants acting in concert are thus equally guilty of the crime charged.” The majority fails to note that the jury was

14 A review of the record in the Ayres case reveals that the jury received the following instruction: Secondly, I instruct you that if the owner of a dangerous instrumentality like an automobile knowingly puts that instrume ntality into the immediate control of a careless and reckless driver, and sits by his side, without protesting, while such driver violates a statute or statues [sic] governing the driving of automobiles on the highways of this state, such owner is equally responsible with the driver if the latter’s violation of the law is the cause of the death of another. Therefore, if in this case you find from the evidence that Trautman at and just prior to the collision of the two automobiles herein involved, was the d river of the defendant’s automobile, and that, whether you find that said Trautman was or was not under the influence of intoxicating liquor, but you are convinced beyond a reasonable doubt that he drove said automobile at an excessive rate of speed and in such manner as to endanger the life and limb of any person upon said highway, or that he drove the same upon the wrong side of the said highway at a time and place when and where he was not confronted by any necessity for driving on such wrong side of the highway in order to avoid a sudden emergency, as by me explained in Instruction No. 11, herein, then, in such case, the defendant is guilty equally with the said Trautman of the violation of the law, and if such violation of law was the proximate cause of the death of the persons in the [other] car, the defendant is guilty of involuntary manslaughter, and you should so find by your verdict.62 specifically instructed that principals to a robbery are equally responsible for a killing committed in the course of the robbery, i rrespective of which participant in the robbery actually committed the killing. 15 Nor do I find the support the majority perceives in State v. Butcher , 137 Idaho 125, 44 P.3d 1180 (Ct. App. 2002). Although I agree with the majority that the rule pronounce d by the Court of Appeals in that case is sound, it simply has no application to this case. In Butcher , the district court instructed the jury as to the law of principal liability as an aider

- and

- abettor. This did not happen in this case, as the majority properly recognizes. For these reasons, I do not subscribe to the majority’s view that the sufficiency of the evidence should be judged to determine whether substantial, competent evidence exists to support a finding that Adamcik engaged in conduct tha t caused Stoddart’s death by aiding and abetting Draper in killing Stoddart. Consistent with Justice White’s statement in McCormick , I believe that the majority’s decision usurps the role of the jury and deprives Adamcik of his right to a jury trial, guar anteed by the Sixth Amendment to the United States Constitution and Article I, § 7 of the Idaho Constitution. Accordingly, I believe that the sole inquiry is that demanded by the district court’s instructions: did the State produce sufficient evidence to permit the jury to conclude beyond a reasonable doubt that Adamcik stabbed Stoddart, causing her death? 16 This leads me to Part
III.A. of the Court’s decision.

15 Instruction No. 20 charged the Owen jury as follows: All persons concerned in the commission or attempted commi ssion of a robbery, whether they directly commit the act constituting the offense or aid and abet in its commission, are equally guilty of all acts done by any of them in furtherance of the criminal offense. If you find from the evidence in this case that the defendants, acting together an in concern and with the common design and purpose, went to the store of Bert McCurry to rob him and in attempting to accomplish such robbery one of the defendants shot and killed the said Bert McCurry with a pistol, then each defendant is equally guilty of said killing, even though such homicide was not the result intended or within the contemplation of the parties as part of their original design. This charge is consistent with the allegation that Owen and Hastings acted in concert in the killing. The information alleged, in pertinent part, as follows: And that the said defendants, William Lawrence Owen and Kenneth Raymond Hastings, did wilfully, unlawfully, knowingly and feloniously aid, encourage, propose, advise, coun sel and abet each other in the unlawful commission of said crime. 16 I have also considered the possibility that the omission of an aiding and abetting instruction was harmless error under the holding in Neder v. United States , 527 U.S. 1 (1999). In Nede r , the Supreme Court stated: “ Unlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Id . at 9 (emphasis original). The court concluded that “where a reviewing court concludes63 Part III.A I join in Chief Justice Burdick’s dissent, as I do not believe that the State produc ed sufficient evidence to support a finding that Adamcik personally inflicted the stab wound that killed Stoddart. I would have no hesitation whatsoever in upholding a conviction if the jury had been instructed on a principal theory of criminal liability for aiding and abetting the slaying, However, I do not view myself as being free to weigh the evidence and determine that Adamcik is guilty of Stoddart’s murder on a theory not presented to the jury by way of instruction. That determination could only ha ve been made by a properly instructed jury. As jeopardy has attached, the conviction cannot be vacated and the matter remanded for new trial. If my premise is correct that there was insufficient evidence produced at trial to support a finding that Adamci k inflicted a fatal stab wound, this Court can only reverse the conviction. For that reason, I respectfully dissent from the Court’s opinion affirming Adamcik’s conviction and sentence for first degree murder.

beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that t he jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” Id . at 17. In my view, this case is not like Neder , in which there was an element of the offense which was uncontroverted and u nchallenged. To the contrary, the defense focused on the charge which had been made and upon which the jury had been instructed, and argued for an acquittal based upon the absence of evidence that Adamcik directly participated in the killing. In closing argument, Adamcik’s attorney stated: Some of these instructions can get a little bit confusing, but this is what it says

– this is what the State must prove. They have to prove the charge. And look under Count I, Murder in the First Degree, that the sai d Torey Michael Adamcik, in the County of Bannock, State of Idaho, on or between the 22nd, 23rd days of September, 2006, did willfully, unlawfully, deliberately, and with premeditation, malice

– and aforethought, kill and murder Cassie Stoddart, a human be ing, by purchasing knives and stabbing Cassie Stoddart, from which the victim died in Bannock County, Idaho. Did they prove that? Did Dr. Skoumal establish that Torey Adamcik put a knife in Cassie Stoddart? They have to prove that or they have not met th eir burden.
Defense counsel then returned to the lack of physical evidence to support the charge that Adamcik actually killed Stoddart: What happens is you see the videotape and you start assuming stuff. You start assuming that is the end of the stor y

– but it’s not. And it’s real hard to believe, isn’t it, it’s hard to believe

– that that Cassie is dead

– that he didn’t do it. But all of the physical evidence proves that he didn’t do it. There is not one single piece of evidence that ties Torey Ad amcik to ever touching Cassie Stoddart. Not one. Not one. Out of all the things they have. Given the defense focus on the charging language contained in the information, and the absence of evidence to support the charge, I cannot conclude that the omis sion of an aiding and abetting instruction was harmless.64