State v. Smitherman

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 51362

STATE OF IDAHO, )
) Filed: July 29, 2025
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
TOBY JASON SMITHERMAN, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon
County. Hon. Brent L. Whiting, District Judge.

Judgment of conviction for two counts of leaving the scene of an accident resulting
in an injury or death and being a persistent violator, affirmed.

Nevin, Benjamin & McKay, LLP; Valeri Kiesig, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; Kenneth K. Jorgensen, Deputy Attorney
General, Boise, for respondent.
________________________________________________

MELANSON, Judge Pro Tem
Toby Jason Smitherman appeals from his judgment of conviction for two counts of leaving
the scene of an accident resulting in an injury or death and being a persistent violator. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Smitherman ran a stop sign resulting in a collision involving three other cars. As a result
of the collision, two people in separate cars were injured. After being contacted by police officers,
but prior to providing his driver’s license and proof of insurance as requested or furnishing any
information or aid to the drivers or occupants of the other vehicles, Smitherman left the scene of
the accident on foot. Smitherman was charged with two counts of leaving the scene of an accident
resulting in injury or death and being a persistent violator. Prior to trial, Smitherman moved to
dismiss either of the counts as multiplicitous and, therefore, violative of due process under the
Fourteenth Amendment to the United States Constitution and Article I, Section 13 of the Idaho
Constitution. At a hearing on the motion, Smitherman argued the State could not charge two
counts of leaving the scene of an injury accident when he was only alleged to have left the scene
of one accident, albeit with two injured people. His motion was denied 1 and he was found guilty
by a jury of both counts of leaving the scene of an accident resulting in injury or death,
I.C. § 18-8007, and being a persistent violator, I.C. § 19-2514. 2 Smitherman appeals, arguing that
his prosecution and sentencing for the two offenses violated protections against being placed in
jeopardy twice for the same offense found in the United States and Idaho Constitutions.
II.
STANDARD OF REVIEW
Whether a defendant’s prosecution complies with the constitutional protection against
being placed in jeopardy twice 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).
III.
ANALYSIS
Smitherman was charged with two violations of I.C. § 18-8007, which provides in
relevant part:
(1) The driver of any vehicle that has been involved in an accident,
either upon public or private property open to the public, who knows or has reason
to know that said accident has resulted in injury to or death of any person shall:
(a) Immediately stop the vehicle at the scene of the accident or as close
thereto as possible. Every stop required under this section shall be made
without obstructing traffic more than is necessary.
(b) Remain at the scene of the accident until the driver has fulfilled all
the requirements under this section.
(c) Give his name, address, the name of his insurance agent or company
if he has automobile liability insurance, and the motor vehicle registration
number of the vehicle he is driving to the person struck, or to the driver or
occupant of or person attending any vehicle collided with.

1
The district court ruled from the bench and reasoned that, because the accident involved
multiple injuries, Smitherman could be charged with multiple counts of leaving the scene of an
accident resulting in injury or death.
2
Smitherman had also been charged with and found guilty of driving a vehicle without the
owner’s consent, reckless driving, and leaving the scene of an accident involving damage to a
vehicle. However, he does not challenge these judgments of conviction on appeal.
(d) If available, exhibit his driver’s license to the person struck, or to
the driver or occupant of or person attending any vehicle collided with.
(e) Render to any person injured in the accident reasonable assistance,
including the conveying or the making of arrangements for the conveying
of such person to a physician, surgeon, hospital or other medical facility,
for medical or surgical treatment, if it is apparent that such treatment is
necessary or if such conveying is requested by the injured person.
Citing Webster’s Dictionary, Smitherman concedes that the meaning of the word “any” as
used in the statute unambiguously means one, some or all indiscriminately of whatever quantity.
He argues, however, that there was only one accident and that the statute unambiguously refers to
“an accident” or “the accident”--plainly singular references. He argues that the actus reus of the
offense is leaving the scene of the accident and that interpreting the statute to mean that every
injury resulting from the accident is a separate accident would yield an absurd result. Smitherman
claims that the two convictions violate the Double Jeopardy Clause of the United States
Constitution because his criminal conduct constituted one act--leaving the scene of an injury
accident. He also argues that his judgment of conviction for two counts of leaving the scene of an
injury accident violate the double jeopardy protections of Article I, Section 13 of the Idaho
Constitution because one offense was the means by which the other was committed.
The Double Jeopardy Clause of the United States Constitution provides that no person shall
“be subject for the same offense to be twice put in jeopardy of life or limb.” The Clause affords a
defendant three basic protections. It protects against a second prosecution for the same offense
after acquittal, a second prosecution for the same offense after conviction, and multiple criminal
punishments for the same offense. Schiro v. Farley, 510 U.S. 222, 229 (1994); State v. McKeeth,
136 Idaho 619, 622, 38 P.3d 1275, 1278 (Ct. App. 2001).
Both counts in the information charging Smitherman with leaving the scene of an injury
accident are identical except for the name of the person injured. Smitherman’s double jeopardy
claim implicates the Fifth Amendment’s protection against multiple criminal punishments for the
same offense. Generally, a two-part analysis applies to determine whether the Double Jeopardy
Clause bars multiple punishments for the same offense. First, in addressing the statutory
provisions at issue in this case, we utilize the test set forth in Blockburger v. United States, 284
U.S. 299, 304 (1932). This 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.; State v. Moffat, 154 Idaho 529,
531, 300 P.3d 61, 63 (Ct. App. 2013). The second step of the analysis requires a factual inquiry
into whether the criminal conduct was part of one continuing event or two separate acts. State v.
Lee, 172 Idaho 106, 109, 529 P.3d 771, 774 (Ct. App. 2023).
Under the Double Jeopardy protections of the Idaho Constitution, courts follow the
“pleading theory” to determine whether one count is a lesser-included offense of another, and thus
whether a defendant is being charged twice for the same offense. State v. Thompson, 101 Idaho
430, 433-35, 614 P.2d 970, 973-75 (1980). Under this pleading theory, a court must consider
whether the terms of the charging document allege that both offenses arose from the same factual
circumstances such that one offense was the means by which the other was committed. Id. at 435,
614 P.2d at 975; State v. Moad, 156 Idaho 654, 658, 330 P.3d 400, 404 (Ct. App. 2014).
Smitherman’s conduct caused separate collisions between separate vehicles, but we need
not address whether there was more than one accident. Where the language of a statute is plain
and unambiguous, this Court must give effect to the statute as written, without engaging in
statutory construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v.
Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of the statute is to be
given its plain, obvious, and rational meaning. Burnight, 132 Idaho at 659, 978 P.2d at 219. Under
the plain language of I.C. § 18-8007, it is not leaving the scene that is the crime--it is leaving the
scene without providing relevant information to a driver, an occupant, or a person of any vehicle
collided with. More specifically, I.C. § 18-8007 provides that Smitherman owed separate duties
to each person involved in the accident, including other drivers, passengers and persons injured. 3
He was required to stop and remain at the scene until he had fulfilled all the requirements of the
statute, including providing certain information to the person struck or to the driver or occupant of
or person attending any vehicle collided with and rendering aid to any person injured. Therefore,
each statutory provision, because of the duty owed to each separate victim, requires proof that the
other does not, i.e. the name of the person to whom Smitherman owed a duty. The information
and the jury instructions correctly identified, as elements of the crimes, the identity of the persons
to whom Smitherman owed certain duties under the statute. Accordingly, each count requires
proof of an additional fact which the other does not (the name of the person to whom the duty is

3
Causing the accident is not a crime.
owed) and, thus, they are separate offenses under the Blockburger test. Similarly, as to Article I,
Section 13 of the Idaho Constitution, we cannot say that both offenses arose from the same factual
circumstances such that one offense was the means by which the other was committed because
separate duties were owed to each victim.
Smitherman argues that use of the word “any” in I.C. § 18-8007 should not be read as
unambiguously allowing multiple prosecutions for a single course of conduct and that allowing a
separate prosecution for each victim would lead to an absurd result. We disagree. For example,
in State v. Zaitseva, 135 Idaho 11, 13 P.3d 338 (2000), a case involving a somewhat similar issue
involving the word “any” in a statute, the defendant was in possession of fourteen blank checks.
She was convicted of fourteen counts of violating I.C. § 18-3605 which provided, in part:
Every person who has in his possession, or receives from another person,
any forged promissory note or bank bill, or bank bills, or check or checks, for the
payment of money or property, with the intention to pass the same, or to permit,
cause, or procure the same to be uttered or passed, with the intention to defraud any
person, knowing the same to be forged or counterfeited, or has or keeps in his
possession any blank or unfinished note or bank bill or check made in the form or
similitude of any promissory note or bill or check for payment of money or
property, made to be issued by any incorporated bank or banking company, with
the intention to fill up and complete such blank and unfinished note or bill or check,
or to permit or cause, or procure the same to be filled up in order to utter or pass
the same, or to permit, or cause, or procure the same to be uttered or passed, to
defraud any person, is punishable by imprisonment in the state prison for not less
than one (1) nor more than fourteen (14) years.
Zaitseva argued that because the statute prohibited possession of a “check or checks,”
possession of more than one check constituted only one violation. The Idaho Supreme Court
affirmed her convictions noting that the relevant portion of the statute under which she was
convicted prohibited possession of “any blank or unfinished note or bank bill or check made in the
form or similitude of any promissory note bill or check . . . with [the] intention to fill up and
complete such blank and unfinished note or bill or check.” Zaitseva, 135 Idaho at 14, 13 P.3d at
341 (quoting I.C. § 18-3605) (emphasis added). Thus, the defendant relied on her double jeopardy
claim on a portion of the statute which prohibited possession of any forged “check or checks.” But
as noted by the Supreme Court, Zaitseva was convicted under another part of the statute which
unambiguously prohibited possession of any blank or unfinished check--permitting a separate
conviction for each check. Thus, a statute prohibiting possession of any forged check (as opposed
to “check or checks”) allows for prosecution for each forged check possessed.
Similarly, in State v. Gillespie, 155 Idaho 714, 316 P.3d 126 (Ct. App. 2013), the defendant
possessed a thumb drive which contained two separate images of children engaged in sexual
conduct. He was charged with and convicted of two counts of former I.C. § 18-1507A, which
provided in relevant part that “every person who knowingly and willfully has in his possession any
sexually exploitative material . . . is guilty of a felony.” The term “sexually exploitative material”
was defined in I.C. § 18-1507(2)(k) as including “any photograph, motion picture, videotape, print,
negative, slide, or other mechanically, electronically, or chemically reproduced visual material
which depicts a child engaged in, participating in, observing, or being used for explicit sexual
conduct.” The defendant argued that his convictions violated double jeopardy protections because
the word “any” as used in the statute “is a collective term and does not identify the unit of
prosecution to be each image or victim.” This Court disagreed because “material” was expressly
defined as singular items. We affirmed, citing Zaitseva, and observed that the Idaho Supreme
Court “has not viewed the word ‘any’ as a collective term limiting prosecution to a single
possession charge but has, quite the contrary, determined that multiple charges are appropriate
under a statute that prohibits the possession of ‘any’ of the singular items described.” Gillespie,
155 Idaho at 720-21, 316 P.3d at 132-33.
Idaho Code Section 18-8007 unambiguously permits prosecution for each separate failure
to comply with statutory duties to provide information and assistance to each person involved in
the accident, including other drivers, passengers and persons injured. Therefore, the district court
did not err in the denial of Smitherman’s motion to dismiss.
IV.
CONCLUSION
Smitherman’s judgment of conviction for two counts of I.C. § 18-8007 did not violate the
Double Jeopardy Clause of the United States Constitution or Article I, Section 13 of the Idaho
Constitution. Therefore, Smitherman’s judgment of conviction for two counts of leaving the scene
of an accident resulting in an injury or death and being a persistent violator is affirmed.
Chief Judge GRATTON and Judge HUSKEY, CONCUR.