Appeal from the District Court of the Fifth Judicial District, State of Idaho, Minidoka County. Hon. R. Barry Wood, District Judge.
The opinion of the court was delivered by: Gratton, Chief Judge
Judgment of conviction for trafficking in methamphetamine and failure to obtain a tax stamp, vacated and remanded.
Eloy Naranjo, Jr. appeals his judgment of conviction for trafficking in methamphetamine of twenty-eight (28) grams or more, but less than two hundred (200) grams, Idaho Code § 37- 2732B(a)(4),*fn1 and failure to obtain a tax stamp, I.C. § 63-4205. We vacate the conviction and remand.
FACTUAL AND PROCEDURAL BACKGROUND
Officer Martinez with the Jerome County Sheriff's Office was contacted by an individual who volunteered to act as a confidential informant (the CI) in return for accommodations from the sheriff's office regarding his sister (the CI's sister) arrest for possession of methamphetamine. The CI notified the sheriff's office that he believed he could purchase methamphetamine from Naranjo because he had purchased from Naranjo in the past. The sheriff's office agreed to set up a controlled buy from Naranjo using the CI to make the purchase. Naranjo agreed to meet the CI in a grocery store parking lot to sell him and his supposed friend (an undercover Drug Enforcement Administration officer) four ounces of methamphetamine. The officer searched the CI before the controlled buy to ensure he did not have any drugs, weapons, or a significant amount of money. After the CI and the undercover officer arrived at the parking lot as agreed, Naranjo called the CI and told him to meet at Naranjo's house. At that time, the CI was aware that his sister was at Naranjo's house.
The undercover officer parked his vehicle in Naranjo's driveway and the CI entered the house to conduct the purchase. For safety concerns, the undercover officer was unwilling to enter the house, and he was unwilling to send the CI in with the money until he saw the methamphetamine. The CI's sister exited the house to show the officer approximately one gram of methamphetamine. The officer remained in his vehicle, but gave the CI the money to make the purchase. The CI returned to the house and negotiated a sale in which Naranjo allegedly gave the CI a baggie containing one ounce (28.35 grams) of methamphetamine, and the CI gave Naranjo the $900 he received from the officer. After the transaction, Naranjo stood in front of his house and the officer was able to visually identify him.
At trial, the State's witnesses included: the CI, the undercover officer, Officer Martinez, and Scott Hoopes, a forensic chemist. Agent Lenhoff, to whom the substance was given for processing and testing, did not testify and Naranjo did not call any witnesses or testify. Naranjo argued that the CI and his sister set him up by fabricating the sale at his house and that the State could not tie him to the methamphetamine because it did not test the baggie for his fingerprints. The jury convicted Naranjo of failing to obtain a tax stamp and trafficking in methamphetamine of at least twenty-eight grams. Naranjo was sentenced to a unified term of ten years with five years determinate for trafficking in methamphetamine, to run concurrent with a unified term of three years with one year determinate for failing to obtain a tax stamp. Naranjo filed a motion for a new trial arguing he had newly-discovered evidence, which was denied. Naranjo appeals.
Naranjo claims that: (1) the district court erroneously admitted prior bad act evidence, the CI's statement that he had previously purchased methamphetamine from Naranjo; (2) there was insufficient evidence to prove that the substance Naranjo sold was methamphetamine because Agent Lehnhoff did not testify; (3) the jury was improperly instructed on the elements of the offense; and (4) if these three errors were harmless standing alone, together they constituted cumulative error.
A. Sufficiency of the Evidence
Naranjo claims that insufficient evidence exists to support his conviction because "there was no evidence that established that the substance that tested positive for being methamphetamine was the same substance that Mr. Naranjo was alleged to have delivered to [the CI] . . . ." The sole basis for this contention is that Agent Lehnhoff, the DEA agent to whom the undercover officer delivered ...