Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Robert C. Naftz, District Judge.
The opinion of the court was delivered by: Melanson, Judge
Judgment of conviction for attempted strangulation, vacated.
Thomas David Moffat appeals from his judgment of conviction for attempted strangulation. Specifically, Moffat challenges the district court's order denying his motion to dismiss. For the reasons set forth below, we vacate.
On May 9, 2010, Moffat engaged in a domestic dispute with his girlfriend in their home. Moffat's girlfriend contacted the police and reported that, during the dispute, Moffat grabbed her by the hair, grabbed her around the throat, threw her around the room, pushed her into objects, and pushed her to the ground. According to the police report, the responding officer observed that Moffat's girlfriend sustained injuries to the left side of her neck, including red scrape marks consistent with finger marks, and also sustained scrape marks on her back and knees. The officer arrested Moffat and issued a citation for misdemeanor domestic battery pursuant to I.C. § 18- 918(3)(b). On May 10, Moffat pled not guilty.
After an officer contacted Moffat's girlfriend for follow-up photos and an interview on May 12, Moffat's girlfriend expressed concern that no charges had been filed against Moffat for attempted strangulation. During this interview, Moffat's girlfriend reported for the first time that Moffat had choked her with one hand so she could not breathe and pulled her hair with the other before he pushed her to the ground. In July, a complaint was filed charging Moffat with attempted strangulation pursuant to I.C. § 18-923(1).
On October 12, Moffat entered a guilty plea to the misdemeanor domestic battery charge. On October 28, after a preliminary hearing on the attempted strangulation charge, an information was filed charging Moffat with attempted strangulation and asserting that Moffat had willfully and unlawfully choked or attempted to strangle his girlfriend on May 9. Moffat was sentenced for misdemeanor domestic battery in November. In December, Moffat filed a motion to dismiss the attempted strangulation charge asserting that, because he pled guilty to misdemeanor domestic battery, prosecution for the offense of attempted strangulation violated his right to be free from double jeopardy. After a hearing, the district court entered an order denying Moffat's motion to dismiss. Moffat entered a conditional guilty plea to attempted strangulation and reserved his right to appeal the district court's order denying his motion. The district court sentenced Moffat to a unified term of eleven years, with a minimum period of confinement of five years, for attempted strangulation, but suspended execution of the sentence and placed Moffat on probation for five years. Moffat appeals.
Moffat argues that the district court erred by denying his motion to dismiss the attempted strangulation charge. Specifically, Moffat asserts that prosecution for attempted strangulation placed him in double jeopardy in violation of his rights under the United States Constitution and the Idaho Constitution.
Whether a defendant's prosecution or punishment complies with constitutional protection against double jeopardy is a question of law over which we exercise free review. State v. Santana, 135 Idaho 58, 63, 14 P.3d 378, 383 (Ct. App. 2000). The United States Supreme Court applies a statutory theory to determine whether a defendant's prosecution or conviction and punishment for two offenses violates the Double Jeopardy Clause of the United States Constitution. See Blockburger v. United States, 284 U.S. 299, 304 (1932). The Blockburger test provides that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there have been two offenses or only one for double jeopardy purposes is whether each statutory provision requires proof of an additional fact which the other does not. Id. at 304. In consecutive prosecutions, if two offenses have been determined to be one offense under the Blockburger test, then convicting and punishing a defendant for both offenses is a violation of the Double Jeopardy Clause. Brown v. Ohio, 432 U.S. 161, 168-69 (1977). As this Court determined in State v. Corbus, 151 Idaho 368, 374, 256 P.3d 776, 782 (Ct. App. 2011), a review of Idaho Supreme Court precedent demonstrates that we apply the Blockburger test to determine whether there has been a double jeopardy violation under the United States Constitution. Thus, in order to address Moffat's assertion that prosecution for attempted strangulation placed him in double jeopardy in violation of his rights under the United States Constitution, we must apply the Blockburger test.
The two statutes at issue in this case are misdemeanor domestic battery, I.C. § 18- 918(3) (b), and attempted strangulation, I.C. § 18-923(1), a felony. Idaho Code Section 18- 918(3) (b) provides that "a household member who commits a battery, as defined in section 18- 903, Idaho Code, against another household member which does not result in traumatic injury is guilty of a misdemeanor domestic battery." Idaho Code Section 18-903 provides that "a battery is any: (a) Willful and unlawful use of force or violence upon the person of another; or (b) Actual, intentional and unlawful touching or striking of another person against the will of the other; or (c) Unlawfully and intentionally causing bodily harm to an individual." Idaho Code Section 18-923(1) provides that "any person who willfully and unlawfully chokes or attempts to strangle a household member, or a person with whom he or she has or had a dating relationship, is guilty of a felony punishable by incarceration for up to fifteen (15) years in the state prison."
In denying Moffat's motion to dismiss the attempted strangulation charge, the district court applied the Blockburger test and determined that Moffat's prosecution for attempted strangulation did not place him in double jeopardy in violation of his rights under the United States Constitution. Specifically, the district court concluded that, based upon a review of the relevant statutes, "the crimes of domestic battery and attempted strangulation constitute two ...