McDEVITT, Chief Justice.

STATEMENT OF THE CASE

In December 1989, on indictment by a grand jury, Robert Richard Jones ("Jones") was charged with having murdered Troy Vance ("Vance") in June 1979. Charges were initially brought by complaint against Jones and Jose Alfonso Martinez ("Martinez") in October 1980, but were dismissed in February 1982. In October 1989, Sherry Wystrach ("Wystrach"), Jones' former wife, came forward with vital evidence concerning the Vance murder. As a result, Jones, Martinez, Donna Cordell, and Rebecca Spalding were indicted for first degree murder. Wystrach testified at Jones' grand jury indictment.

Jones pled not guilty. Several pretrial hearings were held to resolve Jones' motions for change of venue, for a preliminary hearing concerning the existence of a conspiracy, to dismiss the indictment, to sever, and to independently voir dire the jury. The trial court denied the motions for change of venue and for a preliminary hearing. The court also refused to dismiss the indictment.

At trial, the State wove its theory that Jones and Martinez were hired by Donna Cordell to kill Vance for twenty or thirty thousand dollars. Wystrach's testimony was integral to the prosecution's case, providing first-hand knowledge of the conspiracy, its subject matter and payoffs. Wystrach testified that she was present during several meetings between Donna Cordell and Jones at which information and money were exchanged. The trial court allowed testimony concerning the content of the conversations that took place at these meetings under I.R.E. 801(d)(2)(E). Wystrach also testified that Jones surveiled Vance's house in her company. Wystrach explained the relationship between Jones and Martinez as one of business partners in the business of selling drugs.

At the grand jury hearing, Wystrach detailed the murder, stating that late one evening, Jones and Martinez went to Vance's house, overpowered him and shot him in the head. The trial court restricted this testimony at trial, as it was the product of confidential communications made between Wystrach and Jones during their marriage. The murder weapon, which was owned by the victim, was found in a farmer's field across the street from the victim's house. No prints identified as Jones' were on the gun or at the scene of the crime. In fact, there was absolutely no forensic evidence to connect Jones to the crime.

Wystrach was adjudged by the trial court as a matter of law to be an accomplice to the crime and the court's instruction warned the jury to take that fact into consideration. Wystrach's testimony was corroborated by that of Martinez' girlfriend, Rebecca Spalding, who testified that Martinez and appellant would leave the house each evening at the same time and return at the same time except for the night of the murder, when they returned much later than usual. Rebecca Spalding also testified that on that night, Martinez returned home and announced that he would be leaving immediately for Mexico. Jones objected to this testimony but it was ruled admissible under I.R.E. 801(d)(2)(E). The trial court ruled that the conspiracy was not complete until the final payment was made, and Martinez' statement was uttered before finalization. Wystrach's testimony was further corroborated by that of one George Florence placing Jones near the scene of the crime, and that of a jailhouse colleague of Jones' who testified that appellant confessed the murder to him.

The defense counsel strove to impeach Wystrach in order to dissolve the foundation of the State's case. Defense counsel introduced evidence, both extrinsically and via cross-examination, of her prior alcohol and drug abuse, her failed relationships, her vindictiveness, her propensity to lie and become confused or forgetful, and the immunity granted her by the State. Moreover, defense counsel constructed its own theory of the murder, establishing a different time of death to coincide with Jones' firm alibi.

At the conclusion of the trial, on December 13, 1990, the jury returned a verdict of guilty. At the sentencing hearing, the State presented evidence to show that Jones deserved the death penalty. Jones presented several letters of reference to rebut the State's evidence, and also submitted corrections to the presentence report. In addition, Jones introduced evidence that marijuana was being grown in Wystrach's present residence to further impeach her credibility at the hearing. Jones was sentenced to life imprisonment and filed an appeal to this Court.

The issues that this Court must address include:

I. Whether Jones was prejudiced in the grand jury proceedings by the use of false, misleading, and privileged testimony such that the indictment should be dismissed.

II. Whether the trial court erred in denying Jones' motion for a change of venue.

III. Whether the trial court erred in ruling on Jones' motions concerning sufficient independent proof of a conspiracy to invoke I.R.E. 801(d)(2)(E).

IV. Whether there is sufficient evidence to corroborate the testimony of accomplice Wystrach to support the guilty verdict.

V. Whether Idaho or Washington law is applicable to the issue of admissibility of a taped telephone conversation between Jones and Wystrach across state lines.

VI. Whether certain nonverbal actions that took place between Jones and Wystrach during their marriage are protected under the canopy of the marital privilege.

VII. Whether evidence of uncharged crimes of Jones was erroneously admitted by the trial court under I.R.E. 404(b).

VIII. Whether testimony of an undisclosed witness should have been excluded by the trial court.

IX. Whether the jury was properly instructed.

X. Whether the trial court conducted a fair sentencing hearing.

ANALYSIS I. MOTION TO DISMISS THE GRAND JURY INDICTMENT

Jones first argues that during the grand jury proceedings, the prosecuting attorney deliberately elicited and allowed illegal and misleading testimony from its key witness, Wystrach. The illegal testimony allegedly involved hearsay and testimony in violation of Jones' marital privilege under I.R.E. 504(a). The false and misleading testimony allegedly concerned evidence of a hair found at the crime scene purportedly matching Jones' but later stipulated by the prosecution to be the victim's. Jones further contends that the indictment process was also prejudiced by the admission of testimony alleging other irrelevant uncharged crimes of Jones. Jones asks this Court to dismiss the indictment because this alleged prosecutorial misconduct violated his right to due process by denying him his right to have an impartial and independent grand jury determine probable cause.

The law governing grand jury indictments derives from numerous statutes and rules. Idaho Code § 19-1107 states that "[t]he grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury." Idaho Code § 19-1105 describes the type of evidence the jury may consider:

In the investigation of a charge for the purpose of either presentment or indictment, the grand jury can receive any evidence that is given by witnesses produced and sworn before them except as hereinafter provided, furnished by legal documentary evidence, the deposition of a witness in the cases provided by this code or legally admissible hearsay.

Idaho Criminal Rule 6(f) states that "[i]n the investigation of a charge for the purpose of either presentment or indictment, the grand jury can receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence." Section (h) states that "[i]f it appears to the grand jury after evidence has been laid before them that there is probable cause to believe an offense has been committed and the accused committed it, the jury ought to find an indictment." I.C.R. 6(h).

Based upon Jones' allegations in this case, our inquiry into the propriety of the grand jury proceeding is two-fold. First, we must determine whether, independent of any inadmissible evidence, the grand jury received legally sufficient evidence to support a finding of probable cause. State v. Edmonson, 113 Idaho 230, 236, 743 P.2d 459, 465 (1987). Second, we must dismiss the indictment if, despite an adequate finding of probable cause, the prosecutorial misconduct in submitting the illegal evidence was so egregious as to be prejudicial. Id. at 237, 743 P.2d at 466.

After a careful review of the transcript of the grand jury proceeding, we agree with the trial court's conclusion that illegal evidence was received by the grand jury in the form of testimony concerning privileged marital communications and uncharged crimes. Wystrach testified, in violation of I.R.E. 504, as to a confidential conversation that occurred between her and Jones, her husband, immediately after the murder of Troy Vance. In addition, Wystrach testified, in violation of I.R.E. 404(b) and 802, as to uncharged burglaries and at least one other murder allegedly committed by Jones and Martinez. Although it is clear that this testimony should not have been elicited by the prosecutor before the grand jury, it is equally apparent that, independent of this illegal evidence, there is sufficient legal evidence to support the indictment. The grand jury had before it over forty pages of testimony from Wystrach describing the events preceding, during, and following the murder, including a detailed summary of meetings that took place between Donna Cordell, Jones, and Wystrach at which information concerning Vance and the payment of money was disclosed, as well as surveillance of the Vance property by Jones and Wystrach. Wystrach also testified about Jones' and Martinez' preparations on the night of the murder, about their absence from home during the critical hours of the murder, and about the disposition of the final payoff received by Wystrach at a final meeting with Cordell. In addition, George Florence offered testimony placing Jones near the crime scene shortly before the murder occurred. This is sufficient evidence to support a finding of probable cause and therefore the improperly admitted evidence does not overturn the indictment.

We now turn to the second prong of our inquiry. This Court in Edmonson held that "in order to be entitled to dismissal of an indictment on due process grounds, the defendant must affirmatively show prejudice caused by the misconduct." Edmonson at 237, 743 P.2d at 466. Specifically, the defendant must show that, but for the illegal evidence, he would not have been indicted. Id. In Edmonson, the defendant took exception to the prosecutors comments regarding the credibility of witnesses and the weight and sufficiency of the evidence. The Edmonson court, balancing the gravity and seriousness of the misconduct with the sufficiency of the evidence supporting the probable cause finding under the totality of the circumstances, found the misconduct to be so insignificant as to obviate the need to second-guess the grand jury.

In the instant case, although we do not find the prosecutor's misconduct in revealing the privileged and hearsay testimony to be as insignificant, we also do not agree with the trial court's conclusion that such misconduct was prejudicial according to the "but for" test announced in Edmonson. Because there is independent legal evidence to support a finding of probable cause and because the totality of the circumstances at the grand jury proceeding do not demonstrate prejudice, there is no basis for dismissal of the indictment.

II. MOTION FOR CHANGE OF VENUE

Jones next argues that the trial court erred in refusing to grant his motion for change of venue because no prospective juror in the county could possibly have rendered an unbiased verdict. Jones bases this assertion on several factors. First, The victim in this case was a prominent Caldwell businessman. Consequently, at the time when Jones was first accused of the murder in 1980, a veritable flood of publicity heralded the events of the prosecutor's investigation. This was a high profile case in which the public interest subsided only during the interim years between the original and second investigations. Numerous stories were aired both in 1980, and again in 1989, alluding to Jones and his co-defendants. Second, several attorney affiants stated that the pretrial publicity made it impossible for Jones to obtain a fair trial in Canyon County. Third, Jones spent a majority of his peremptory challenges on jurors with extensive knowledge of the case. Finally, an examination of the transcript shows that most of the veniremen had been exposed to and digested media coverage of the Vance murder.

A motion to change the venue of a criminal trial is addressed to the sound discretion of the trial court. State v. Bainbridge, 108 Idaho 273, 276-77, 698 P.2d 335, 338-39 (1985); State v. Needs, 99 Idaho 883, 890, 591 P.2d 130, 137 (1979). Well-settled case law holds that "where it appears that the defendant actually received a fair trial and that there was no difficulty experienced in selecting a jury, refusal to grant a change of venue is not a ground for reversal." State v. Thomas, 94 Idaho 430, 432, 489 P.2d 1310, 1312 (1971). See also Bainbridge, 108 Idaho at 277, 698 P.2d at 339; Needs, 99 Idaho at 890, 591 P.2d at 137. Factors to consider in determining whether the defendant has received a fair trial, and thus whether an abuse of discretion has occurred, are the existence of affidavits indicating prejudice in the community; testimony at voir dire as to whether any juror had formed an opinion of the defendant's guilt or innocence based on pretrial publicity; whether the defendant challenged for cause any of the jurors finally selected; the nature and content of the pretrial publicity; the length of time elapsed between the pretrial publicity and the trial; and any assurances given by the jurors themselves concerning their impartiality. Needs, 99 Idaho at 890-91, 591 P.2d at 137-38.

Our review of the record reveals that a jury was selected from Canyon County without significant difficulty. Jones did introduce affidavits opining that he could not receive a fair trial in Canyon County. Jones also submitted news articles reflecting media coverage naming him as the defendant published within six months of his trial. However, the articles contained only factual accounts of events then occurring and were not of an inflammatory nature. Furthermore, jurors were questioned extensively and those ultimately selected indicated absolutely no hesitancy in affirming their impartiality and lack of prefabricated opinion. Finally, not one of the final jurors was challenged for cause by Jones. Based upon the foregoing, we hold that the trial court did not abuse its discretion in denying the motion for a change of venue.

In the alternative, Jones challenges the trial court's denial of his motion for a sequestered voir dire. In light of our holding concerning the motion for change of venue, we hold that a sequestered voir dire was not necessary and it was not error for the trial court to deny the motion.

III. MOTIONS CONCERNING PROOF OF A CONSPIRACY

Jones urges this Court to adopt the procedure of allowing a defendant the opportunity to have a pretrial hearing to determine whether there is sufficient independent proof of a conspiracy to invoke the co-conspirator exception to the hearsay rule. This procedural process has been denominated a " James hearing" based on the holding in United States v. James, 590 F.2d 575 (5th Cir. 1979), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). We decline appellant's invitation. According to the existing law in this State, the trial court has discretion to admit statements of a co-conspirator "made in pursuance of a conspiracy if there is some evidence of the conspiracy or a sufficient offer of proof of its existence." State v. Hoffman, 123 Idaho 638, 642, 851 P.2d 934, 938 (1993), citing State v. Caudill, 109 Idaho 222, 706 P.2d 456 (1985); State v. So, 71 Idaho 324, 231 P.2d 734 (1951).

Jones argues that the trial court erroneously admitted hearsay statements of Martinez through the testimony of Rebecca Spalding, under I.R.E. 801(d)(2)(E) without a finding of independent evidence of a conspiracy. Once again, Idaho law does not require contemporaneous independent proof of a conspiracy. Idaho law simply requires that there be some evidence of conspiracy or promise of its production, before the court can admit evidence of statements made in furtherance of the conspiracy under I.R.E. 801(d)(2)(E). Id. We will not disturb a trial court's decision to admit statements so long as there is "sufficient evidence to permit the trial court reasonably to infer that there existed a conspiracy." Hoffman, 123 Idaho at 642, 851 P.2d at 938 (citing State v. Brooks, 103 Idaho 892, 901, 655 P.2d 99, 108 (Ct.App. 1982)).

Looking at the record as a whole, independent of the statements of Jones, Martinez, and Donna Cordell, there is sufficient evidence to permit the trial court reasonably to infer that a conspiracy existed between the three. Wystrach's testimony clearly establishes the conspiracy. Thus, all statements by any of the co-conspirators made during and in furtherance of the conspiracy are admissible against each under I.R.E. 801(d)(2)(E). Jones further argues that, if there was any conspiracy at all, it was for the murder of Vance, which murder was completed before Martinez' statements to which Spalding testified. Thus, Jones contends, the statements were not made in furtherance of the conspiracy and do not qualify for admission under 801(d)(2)(E). We disagree. The trial court specifically found that the conspiracy providing the springboard for admitting Martinez' statements under 801(d)(2)(E) was not simply for the murder of Vance, but was for the paid murder of Vance. The trial court further found that the conspiracy did not end until the final payment had been made, and, because the evidence showed that Martinez' statements were made before the final payment, the statements were admissible under 801(d)(2)(E). We hold that there is sufficient evidence to support the trial court's ruling that the conspiracy was for the paid murder of Vance. (Tr. vol. IV at 834.) Therefore, the conspiracy was not complete until final payments was made, and all statements made in furtherance of the conspiracy until final payment are admissible. Cf. State v. Caudill, 109 Idaho 222, 226, 706 P.2d 456, 460 (1985).

Jones also asserts that, because the underlying crime of conspiracy was barred by the statute of limitation, hearsay statements in furtherance of that crime are also barred. This argument suffers at least one internal fallacy. It confuses "conspiracy" as a concept of substantive criminal law with "conspiracy" as part of an evidentiary principle, and burdens the latter with all the formal requirements of the former. The ninth circuit has concisely articulated the proper approach to the issue:

[T]he differences between what must be proved to invoke the hearsay exception and what must be proved in order to convict a person of the crime of conspiracy, as well as the difference in burden of proof, mean that neither collateral estoppel nor res judicata automatically bars the use of statements by a person who has been acquitted of the crime of conspiracy.

United States v. Peralta, 941 F.2d 1003, 1006 (9th Cir. 1991) quoting United States v. Gil, 604 F.2d 546, 549 (7th Cir. 1979). See also United States v. Carroll, 860 F.2d 500, 506 (1st Cir. 1988); United States v. Kincade, 714 F.2d 1064, 1065 (11th Cir. 1983); United States v. Stanchich, 550 F.2d 1294, 1299 (2nd Cir. 1977); United States v. Cravero, 545 F.2d 406, 419 (5th Cir. 1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977); United States v. Bass, 472 F.2d 207, 213-14 (8th Cir.), cert. denied, 412 U.S. 928, 93 S.Ct. 2751, 37 L.Ed.2d 155 (1973). By the same token, the statute of limitation for the crime of conspiracy does not automatically bar the use of statements by a person who cannot be charged with the crime of conspiracy due to the operation of the statute of limitation. The substantive criminal law of conspiracy, though it overlaps in many areas, simply has no application to this evidentiary principle. Thus, once there is some evidence of a conspiracy or promise of its production, any statement made by a co-conspirator during the course of and in furtherance of the conspiracy are admissible. "[I]t makes no difference whether the declarant or any other partner in crime could actually be tried, convicted and punished for the crime of conspiracy." United States v. Gil, 604 F.2d 546, 549 (7th Cir. 1979).

IV. CORROBORATION OF ACCOMPLICE TESTIMONY

Jones next contends that the trial court erroneously admitted the uncorroborated testimony of accomplice Wystrach. Idaho Code § 19-2117 states that:

A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof.

I.C. § 19-2117. When it appears as a matter of law that a witness is an accomplice of the defendant, the court should so instruct the jury and should also instruct them concerning the necessary corroboration of his testimony. State v. Wilson, 93 Idaho 194, 200, 457 P.2d 433, 439 (1969). Corroboration of an accomplice need only connect the accused with the crime, it may be slight, and need only go to one material fact or it may be entirely circumstantial. State v. Aragon, 107 Idaho 358, 690 P.2d 293 (1984); State v. Mundell, 66 Idaho 339, 158 P.2d 799 (1945).

The trial court adjudged Wystrach to be an accomplice as a matter of law. We agree with this conclusion. Accordingly, the trial court properly gave a limiting instruction concerning accomplice testimony. The record reveals ample evidence to sustain an implicit jury finding of sufficient corroborating evidence. Corroborating evidence which the jury could easily have found tending to connect Jones with the murder of Vance includes the testimonies of Florence, Tisdale, and Spalding, none of whom were accomplices.

V. SUPPRESSION OF THE TAPED INTERSTATE TELEPHONE CONVERSATION

Jones next argues that the trial court erroneously applied Idaho and federal law instead of Washington law in determining the admissibility of a taped telephone conversation between Jones in Washington and Wystrach in Idaho. Washington law specifically prohibits the recording of telephone conversation between "points within and without the state" absent the consent of both parties. R.C.W. 9.73.030(1)(a). Idaho and federal law require the consent of only one party. The Idaho Supreme Court has adopted the "most significant contacts" test to determine choice of law issues. See Johnson v. Pischke, 108 Idaho 397, 399-400, 700 P.2d 19, 21-22 (1985). The "significant contacts" test entails a two-step process. First, the court must examine certain significant "contacts" with each state having an interest in the issue according to the relative importance of the contacts to the particular issue. Second, the court must examine the contacts in light of the principles underlying the area of law and the law of the relative jurisdictions.

In this case the call originated in Idaho and was supervised and recorded by Idaho police officials in order to obtain evidence concerning a murder that occurred in Idaho. The call was placed to an inhabitant of Washington. Under the first prong of the test, as to the issue of regulating the interstate telephone conversation, the contacts in Idaho significantly outweigh those in Washington.

Under the second prong of the test we are required first to weigh the relevant policies of each involved jurisdiction. The Washington law is meant to protect the privacy of its citizens. The Idaho law balances the need to protect the privacy of its citizens against the social need to provide reasonable means of procuring evidence in prosecution of crimes committed in Idaho. Although the Washington law provides heightened protections to individuals, the Idaho law provides significant protection for all private individuals, regardless of state citizenship, by requiring the consent of at least one party. Thus, both Idaho and Washington policies are furthered by applying Idaho rather than Washington law to the issue.

We next consider the principle promoting the protection of justified expectations. Individuals expect their telephone conversations to be private. This expectation would be served by the application of either Washington or Idaho law. We must also consider the basic policies underlying the particular field of the law. In this case, significant privacy interests underlie limiting governmental intrusion into telephone conversations. Once again, this privacy interest is adequately protected by either state's statute. Finally, the court must weigh the need for certainty, predictability, and uniformity of result, in the determination of the law to be applied. Once again, the application of the Idaho statute more aptly achieves these principles. An analysis of Washington law reveals no case in which Washington exercised its prohibition against Idaho officials taping calls originating in Idaho, nor that require suppression of evidence obtained by such taping. Allowing Idaho officials to rely on an Idaho statute concerning taped telephone conversations originating within its borders promotes facility, certainty, predictability, and uniformity of result. Accordingly, we hold that the trial court properly applied Idaho law to the suppression issue.

VI. PRIVILEGED TESTIMONY

Jones contends that the trial court erroneously admitted testimony concerning two "marital acts" engaged in by Jones and Wystrach, in violation of the marital privilege. State v. Fowler, 101 Idaho 546, 550, 617 P.2d 850, 854 (1980). The first incident involves the alleged surveillance of the Vance property, and the second entails a "meaningful glance" exchanged at the viewing of a news story on the murder. We hold that the trial court correctly ruled that the privilege does not protect the two nonverbal acts. The trial court properly excluded from evidence all confidential communications that occurred between Jones and Wystrach during their marriage. The surveillance of the Vance property by Wystrach and Jones cannot be regarded as a marital communication any more than testimony concerning a spouse's possessions or whereabouts can be. Id., 101 Idaho at 550, 617 P.2d at 854. The trial court properly recognized this fact. By contrast, the "meaningful glance" that passed between Wystrach and appellant, although communicative, occurred in the presence of Wystrach's parents and was therefore far from confidential.

VII. EVIDENCE OF UNCHARGED CRIMES

Jones asserts that the trial court erred in allowing testimony of uncharged crimes of appellant relating to an unspecified murder and to the sale, possession, use and delivery of controlled substances under I.R.E. 403, and State v. Arledge, 119 Idaho 584, 808 P.2d 1329 (Ct.App. 1991). We disagree with respect to the testimony regarding the sale, possession, use and delivery of a controlled substance. This testimony is admissible under I.R.E. 404(b) which allows evidence of prior wrongs to show motive, intent or plan. However, the testimony concerning the unspecified murder was erroneously admitted according to I.R.E. 403. The testimony of the "unspecified" murder came from Wystrach's psychologist Dr. Hamblin. It was offered for purposes of rebutting Jones' attempt to impeach the credibility of Wystrach. The doctor's testimony referred to a notation he made that Wystrach admitted to him during a counseling session that Jones had "killed someone," presumably referring to Vance. The court allowed the testimony as a prior consistent statement to rebut charges of recent fabrication. Because Wystrach's inference is vague as to the victim, the statement does not qualify as a prior consistent statement for lack of specificity and should have been suppressed as unduly prejudicial. The error in admitting the statement, nonetheless, is harmless according to the standard set forth in State v. Petrogalli, 34 Idaho 232, 200 P. 119 (1921), and State v. Pizzuto, 119 Idaho 742, 810 P.2d 680 (1991), and therefore does not require reversal. I.C.R. 52; State v. Rice, 7 Idaho 762, 66 P. 87 (1901). The standard for determining whether error is harmless is "whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction and that the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Pizzuto, 119 Idaho at 762, 810 P.2d at 700 (citation omitted). We conclude that, beyond a reasonable doubt, the evidence of the prior unspecified murder did not influence the jury's verdict. The most that the complained of testimony could have contributed was to bolster the credibility of Wystrach. The jury had ample other opportunity to discern the credibility of Wystrach and weigh it against that of appellant. Therefore, the error is harmless and does not warrant reversal.

VIII. TESTIMONY OF UNDISCLOSED WITNESS

Jones next argues that the trial court erroneously admitted the testimony of an undisclosed witness, Lisa Squires. The State may call an undisclosed witness when the testimony of the witness only concerns the chain of possession of certain evidence, State v. Goodrick, 95 Idaho 773, 777, 519 P.2d 958, 962 (1974), or during rebuttal. The testimony of Lisa Squires fits neither criteria. Ms. Squires was used to establish the chain of custody of the Red Lion Downtowner hotel room registration and charge account signed by Jones. Had the prosecution so confined its examination of Ms. Squires, the admission of Ms. Squires' testimony would surpass scrutiny under Goodrick. However, the State delved further into the episodes surrounding Jones' stay at the Red Lion, eliciting testimony from Ms. Squires concerning the amount of money Jones carried with him. The State justifies the admission of the latter portion of Squires' testimony by characterizing it as rebuttal evidence, emphasizing that the defense cast doubt on Wystrach's credibility by examining her about prior inconsistent testimony under oath denying any involvement on her or Jones' part in the murder, about her bad memory based on drug and alcohol abuse, about her propensity to lie as evidenced by her false rape charge, and about her love/hate affair with Jones. The State asserts that Squires' testimony directly supports Wystrach's testimony on direct examination concerning a recent sojourn between her and appellant at the Red Lion Downtowner in Boise, Idaho, shortly before their breakup and Wystrach's turning state's witness, thereby somewhat rehabilitating Wystrach's credibility. We disagree. Goodrick's first criteria contemplates witnesses called after the opposing party has presented their case to rebut allegations brought to bear by the opposition. Ms. Squires was not a rebuttal witness, but surfaced during the state's case-in-chief. Therefore, her testimony concerning the bankroll Jones carried does not qualify as rebuttal and the trial court committed error in admitting her testimony. However, the error is harmless and does not warrant reversal.

IX. JURY INSTRUCTIONS

Jones also argues that the trial court erroneously failed to give the jury a Holder instruction, asserting that the State's case before the jury consisted solely of circumstantial evidence. Generally:

In charging the jury, the court must state to them all matters of law necessary for their information. Either party may present to the court any written charge and request that it be given. If the court thinks it correct and pertinent, it must be given; if not, it must be refused.

I.C. § 19-2132. The question whether the jury was properly instructed is a question of law over which this Court exercises free review. See Suitts v. First Sec. Bank of Idaho, 110 Idaho 15, 713 P.2d 1374 (1985). In Idaho, the failure to give a circumstantial evidence instruction, when warranted by the evidence, is reversible error. State v. Holder, 100 Idaho 129, 594 P.2d 639 (1979). Holder requires a circumstantial instruction to be given when the evidence linking the defendant to the crime charged is entirely circumstantial. Holder, 100 Idaho at 133, 594 P.2d at 643. We hold that the trial court properly refused to give a Holder instruction, because the case is not based entirely on circumstantial evidence. State v. Phillips, 123 Idaho 178, 182, 845 P.2d 1211, 1215 (1993). Direct evidence includes, among other things, the testimony of Tisdale concerning Jones' confession and of Wystrach concerning the conspiracy, the surveillance, and Martinez' drug buy.

Jones also claims that the trial court erred in allowing an "on or about" instruction in the face of an affirmative alibi, thereby relieving the State's burden to prove each and every element of the crime beyond a reasonable doubt. State v. Mode, 57 Wn.2d 829, 834, 360 P.2d 159, 164 (1961). We disagree. The time of death is not an element of the crime and the defense of an alibi for a particular time period does not constructively create such an element. The "on or about" instruction given by the court did not relieve the state of its burden to prove any element.

X. THE SENTENCING HEARING

Jones also attacks the fairness and neutrality of the sentencing process. Our standard in reviewing sentences is that "[s]entencing is a matter committed to the discretion of the trial judge, and the defendant has the burden of showing a clear abuse thereof on appeal. In exercising that discretion, reasonableness is a fundamental requirement." State v. Broadhead, 120 Idaho 141, 144, 814 P.2d 401, 404 (1991) (quoting State v. Dillon, 100 Idaho 723, 724, 604 P.2d 737, 738 (1979), overruled on other grounds, State v. Brown, 121 Idaho 385, 394, 825 P.2d 482, 491 (1992). Based on the evidence presented on appeal, it is the opinion of this Court that the process was reasonable and the trial court properly and fairly weighed the evidence. The record demonstrates that the trial court properly entertained and resolved Jones' objections to the presentence report, accommodated all of Jones' mitigating evidence, and evaluated the sum of the evidence before it. We find no abuse of discretion in the sentencing phase of this case.

Based upon the foregoing analysis in sections I through X, we find no merit in Jones' contentions concerning cumulative error and wholly affirm the trial court.

TROUT, J., and SCHROEDER, J., Pro Tem, concur.