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IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 36648 STATE OF IDAHO, Plaintiff-Respondent, v. SHAWN M. FLUEWELLING, Defendant-Appellant. ) ) ) ) ) ) ) ) ) )

Boise, January 2011 Term 2011 Opinion No. 29 Filed: March 17, 2011 Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District of the State of Idaho, in and for Ada County. The Hon. Ronald J. Wilper, District Judge. The judgment of the district court is affirmed. Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. John McKinney argued. Griffard Law Offices, Boise, for appellant. Leo Griffard argued.

EISMANN, Chief Justice. This is an appeal contending that prosecution for possessing marijuana with the intent to deliver it violated the right to practice a religion in which marijuana is used as a sacrament. We affirm the judgment of the district court.

I. FACTS AND PROCEDURAL HISTORY Shawn Fluewelling (Defendant) was indicted for possession of marijuana with the intent to deliver, a felony. On January 12, 2008, a Meridian police officer responded to a call regarding the odor of marijuana near Defendant's residence. When he arrived, the officer could smell the odor of marijuana coming from the residence. He knocked on the door and spoke with

Defendant, who explained that as an active practitioner of THC Ministries, he smoked marijuana and cooked with it. Defendant also stated that he had smoked marijuana the prior day, that he had recently cooked marijuana in the residence, and that during the past few hours he had

smoked marijuana with two other people. Two days later, officers executed a search warrant at Defendant's home, in which they found nine grams of marijuana. During the search, Defendant waived his Miranda rights and talked with the officers. He told them that he was an ordained minister in THC Ministries and that he provided marijuana to be smoked by his friends as a sacrament, but he did not receive any compensation for doing so. He also produced a "sanctuary card" and stated that his residence was a sanctuary making it free from any laws. He explained that marijuana was a sacrament in his religion, that he kept it in a "sacrament box" (a cigar humidor), and that he anoints others with marijuana by packing it in a pipe for them to smoke in his residence. A grand jury indicted Defendant for possession of marijuana with the intent to deliver, a felony. He filed a motion to dismiss the indictment, arguing that the prosecution violated his right to the free exercise of religion protected by the State and Federal Constitutions. He also contended that the statute under which he was charged was unconstitutionally vague because the definition of "deliver" was so broad that it gave the prosecuting attorney discretion to charge either a felony or a misdemeanor. The district court denied both motions, and Defendant pled guilty, reserving his right to appeal. After he was sentenced and the judgment of conviction was entered, Defendant timely appealed.

II. ISSUES ON APPEAL A. Is Idaho Code

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Idaho Law