Opinion No. 22
decision is not final until exception of the 21 day petition
for rehearing period. Pursuant to rule 118 of the Idaho
from the District Court of the First Judicial District, State
of Idaho, Kootenai County. Hon. Fred M. Gibler, District
Judgment of conviction, affirmed.
Thomas, State Appellate Public Defender; Brian R. Dickerson,
Deputy Appellate Public Defender, Boise, for appellant.
Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy
Attorney General, Boise, for respondent.
Jay Weeks appeals from his judgment of conviction for
burglary. Weeks alleges the district court did not properly
instruct the jury on the elements of theft by disposing of
stolen property. Weeks further argues because there was
insufficient evidence for a probable cause finding, the
district court erred in denying his motion to dismiss the
information. Finally, he contends there was insufficient
evidence at trial to support the conviction. For the reasons
set forth below, we affirm.
BACKGROUND AND PROCEDURAL HISTORY
evidence presented at trial is as follows. Weeks lived
part-time in a camp trailer outside a residence where his
cousin lived with several roommates. Weeks' cousin
testified that his roommates did not know Weeks was living on
the premises or that he had access to the residence. Weeks
also testified and the following facts were presented to the
jury. Weeks went to the residence when none of the residents
were home to retrieve laundry he had left in his cousin's
room. Weeks was under the influence of prescription drugs,
and while he was in the house he found and took an iPad 2
that belonged to one of the roommates. Weeks took the iPad 2
to a pawnshop and first attempted to obtain a loan on the
device, but instead sold the iPad 2 to the pawnshop for $185.
The owner of the iPad 2 reported the theft, and law
enforcement identified Weeks as the person who sold the
device to the pawnshop.
was charged with burglary for entering the pawnshop with the
intent to commit the crime of theft by disposing of stolen
property. Weeks sought to dismiss this charge at
the preliminary hearing on the grounds that he could not be
guilty of having stolen the iPad 2 and also guilty of
disposing of the stolen property. The magistrate denied the
motion and determined there was probable cause to support the
burglary charge because Weeks entered the pawnshop with the
intent to dispose of the stolen device in order to receive
money. Weeks renewed this argument in a motion to dismiss
before the district court and argued Idaho Criminal Jury
Instruction 547 requires the State to prove the property was
stolen by another, not stolen by the accused. The district
court denied the motion and a subsequent motion for
reconsideration, holding ICJI 547 was inconsistent with Idaho
Code § 18-2403(4). The district court denied the motions
based on its determination that I.C. § 18-2403(4) does
not require a finding that the stolen property be stolen
" by another" and that substantial evidence was
presented at the preliminary hearing to support a probable
cause finding that Weeks committed the burglary. Weeks argued
the statute was ambiguous due to the inconsistency with ICJI
547. The district court determined I.C. § 18-2403(4) was
unambiguous and that the court need not look at the
legislative history of the 2001 amendment that eliminated the
" by another" requirement for the disposition of
stolen property offense. Over the objection of Weeks, at the
conclusion of the trial, the district court provided the jury
an instruction consistent with the language of I.C. §
18-2403(4). Weeks appeals the district court's jury
instruction and the denial of his motion to dismiss, and
challenges the sufficiency of the State's evidence.
The Jury Instruction
the case and on appeal, Weeks has vigorously argued that he
could not be found guilty of burglary by entering the
pawnshop with the intent to commit the crime of theft by
disposing of stolen property. This assertion is grounded in
an inconsistency between the language of I.C. §
18-2403(4) and ICJI 547. He argues the district court erred
by improperly instructing the jury as to the State's
burden to prove he intended to commit the crime of theft by
disposing of stolen property.
Whether the jury has been properly instructed is a question
of law over which we exercise free review. State v.
Severson, 147 Idaho 694, 710, 215 P.3d 414, 430 (2009).
When reviewing jury instructions, we ask whether the
instructions as a whole, and not individually, fairly and
accurately reflect applicable law. State v. Bowman,
124 Idaho 936, 942, 866 P.2d 193, 199 (Ct.App. 1993).
trial court presiding over a criminal case must instruct the
jury on all matters of law necessary for the jury's
information. I.C. § 19-2132. In other words, a trial
court must deliver instructions on the rules of law that are
" material to the determination of the defendant's
guilt or innocence." State v. Mack, 132 Idaho
480, 483, 974 P.2d 1109, 1112 (Ct.App. 1999). This
necessarily includes instructions on the " nature and
elements of the crime charged and the essential legal
principles applicable to the evidence that has been
admitted." State v. Gain, 140 Idaho 170, 172,
90 P.3d 920, 922 (Ct.App. 2004). Each party is entitled to
request the delivery of specific instructions. However, such
instructions will only be given if they are " correct
and pertinent." I.C. § 19-2132. A proposed
instruction is not " correct and pertinent" if it
is: (1) an erroneous statement of the law; (2) adequately
covered by other instructions; or (3) " not supported by
the facts of the case." Severson, 147 Idaho at
710-11, 215 P.3d at 430-31 (quoting State v. Olsen,
103 Idaho 278, 285, 647 P.2d 734, 741 (1982)). Ordinarily the
language employed by the legislature in defining a crime is
deemed to be best suited for that purpose, and error cannot
be predicated on its use in jury instructions. State v.
Zichko, 129 Idaho 259, 264, 923 P.2d 966, 971 (1996).
issue in this case is a conflict between the language of a
pattern jury instruction approved by the Idaho Supreme Court
and I.C. § 18-2403(4). This Court has stated, "
[t]he pattern ICJI instructions are presumptively correct.
The Idaho Supreme Court approved the pattern jury
instructions and has recommended that the trial courts use
the instructions unless a different instruction would more
adequately, accurately, or clearly state the law."
State v. Reid, 151 Idaho 80, 85, 253 P.3d 754, 759
(Ct.App. 2011). In the Introduction and General Directions
for Use of ICJI, the jury instruction committee, with the
approval of the Supreme Court, instructs trial courts that
" as the law in any respect becomes more refined or is