                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 34066

STATE OF IDAHO,                                    )     2009 Opinion No. 29
                                                   )
          Plaintiff-Respondent,                    )     Filed: April 16, 2009
                                                   )
v.                                                 )     Stephen W. Kenyon, Clerk
                                                   )
WILLIAM LYNN BENNETT,                              )
                                                   )
          Defendant-Appellant.                     )
                                                   )

          Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
          County. Hon. Michael R. McLaughlin, District Judge.

          Judgment of conviction and unified sentence of eight years, with one and one-half
          years determinate, for grand theft and a concurrent sentence of eight years, with
          one and one-half years determinate on a persistent violator enhancement,
          affirmed.

          Molly J. Huskey, State Appellate Public Defender; Heather M. Carlson, Deputy
          Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
          Attorney General, Boise, for respondent.
                     ______________________________________________

GUTIERREZ, Judge
          William Lynn Bennett appeals from the judgment of conviction entered upon a jury
verdict finding him guilty of grand theft and his guilty plea to being a persistent violator. We
affirm.
                                                  I.
                                    FACTS AND PROCEDURE
          In October 2004, Bennett entered a verbal agreement with John LeFave to purchase
LeFave’s travel trailer.1 It was agreed that LeFave would immediately bring the trailer to


1
         The parties offered disparate testimony as to the agreed upon purchase price. LeFave
testified that Bennett had agreed to pay him $1,500, while Bennett testified that he had only
agreed to pay $850.

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Carolyn Ellinger’s (a friend of Bennett’s) property where Bennett was staying and that Bennett
would make payments to LeFave up to the full purchase price. LeFave testified that the parties
had not agreed to a payment structure, but that he had told Bennett he would take a down
payment and then they “would go from there and go to a finance company and get it straightened
out.” LeFave also testified that under the terms of the agreement, once Bennett finished paying
for the trailer, he would receive the title.
        When LeFave dropped off the trailer at Ellinger’s house, he testified that he “put a chain
on it” and a “tongue hitch lock system” “[t]o keep it from being moved” because Bennett did not
have permission to move the trailer until it had been paid for in full. LeFave testified that he
specifically told Bennett that if the trailer needed to be moved, LeFave would personally move it
“so [he] would know where it was at all times.”
        Bennett made at least one payment toward the purchase price, 2 but then LeFave learned
that the trailer had been moved without his permission. LeFave went to Ellinger’s property to
confirm that the trailer was missing and discovered that the lock had been removed and that part
of the lock system had been left on the ground.3
        A few months later, Bennett called LeFave to tell him that he had moved the trailer to
Washington. LeFave testified that Bennett also told him to send him the title to the trailer and
then Bennett would send LeFave $1,000, but that if LeFave “got the police involved” Bennett
would “burn” the trailer. After contacting law enforcement, LeFave sent Bennett a certified
letter to the Washington address that Bennett had provided him on the phone which advised
Bennett that LeFave was going to report the trailer as stolen and that if Bennett had any
questions, he should contact the Boise Police Department. The letter was eventually returned as
undelivered.




2
        The parties agreed that one payment was made to LeFave’s wife who could not recall the
precise amount. She estimated that it had been between $200 and $300. Bennett testified that he
had paid $150 dollars to LeFave’s wife, but had made other payments to LeFave as well.
3
       Bennett testified at trial that when he started a second job, LeFave had moved the trailer
for him from Ellinger’s house to a new location and that he had advised LeFave that he may be
moving again. LeFave denied that he had moved the trailer again after leaving it on Ellinger’s
property.

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       In an effort to locate the trailer, LeFave then drove to Washington to the address Bennett
had given him. He discovered that both Bennett and the trailer were no longer at that location,
and he proceeded to report the theft of his trailer to law enforcement. At the time of trial,
LeFave had received neither further payment nor a return of the trailer from Bennett.
       Bennett was charged with grand theft, Idaho Code §§ 18-2403(1), 18-2407(1)(b), and
with being a persistent violator, I.C. § 19-2514. After a trial, a jury found Bennett guilty of
grand theft, and Bennett subsequently pled guilty to the persistent violator allegation. He filed a
motion for judgment of acquittal, claiming that “[t]he inculpatory evidence presented on the
material element of value was so insubstantial that jurors could not help but have a reasonable
doubt as to the proof of that element.” The district court denied the motion, entered a judgment
of conviction, and imposed a unified eight-year sentence with one and one-half years determinate
for the grand theft conviction. The court also imposed a concurrent identical sentence for the
persistent violator enhancement. Bennett now appeals.
                                                II.
                                           ANALYSIS
A.     Sufficiency of the Evidence
       Bennett first argues that the evidence presented at trial was insufficient to support the
jury’s verdict finding him guilty of grand theft. Appellate review of the sufficiency of the
evidence is limited in scope. A judgment of conviction, entered upon a jury verdict, will not be
overturned on appeal where there is substantial evidence upon which a reasonable trier of fact
could have found that the prosecution sustained its burden of proving the essential elements of a
crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099,
1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App.
1991). We will not substitute our view for that of the jury as to the credibility of the witnesses,
the weight to be given to the testimony, and the reasonable inferences to be drawn from the
evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683, 684,
701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light most
favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson, 121
Idaho at 104, 822 P.2d at 1001. Substantial evidence does not mean that the evidence need be
uncontradicted. In State v. Herrera, et. al. ___ Idaho ___, ___, P.3d ___, ___ (Ct. App. 2009),
this Court noted:


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       All that is required is that the evidence be of sufficient quantity and probative
       value that reasonable minds could conclude that the verdict of the jury was
       proper. It is not necessary that the evidence be of such quantity or quality that
       reasonable minds must conclude, only that they could conclude.
Id. at ___, ___ P.3d at ___ (citation omitted).
       Idaho Code Section 18-2403(1), under which Bennett was charged, states that “[a] person
steals property and commits theft when, with intent to deprive another of property or to
appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds
such property from an owner thereof.” An “owner” is defined as “any person who has a right to
possession thereof superior to that of the taker, obtainer or withholder.” I.C. § 18-2402(6). The
intent to “deprive” another of property means the intent “[t]o withhold it or cause it to be
withheld from him permanently or for so extended a period or under such circumstances that the
major portion of its economic value or benefit is lost to him . . .” or “[t]o dispose of the property
in such a manner or under such circumstances as to render it unlikely that an owner will recover
such property.” I.C. § 18-2402(3).
       On appeal, Bennett argues that the state failed to present sufficient evidence on three
elements of the theft charge:
       (1) that Mr. Bennett wrongfully took the property, because the property was in
       Mr. Bennett’s possession so it could not be “wrongfully” taken by him; (2) that
       the property was taken from an owner, because Mr. Bennett had contracted with
       Mr. LeFave for the trailer and was ostensibly the owner of the trailer; and (3) that
       Mr. Bennett took the property with the intent to deprive the owner of the property
       or to appropriate the property, because Mr. Bennett did not have the requisite
       intent since he possessed and believed he owned or had an ownership interest in
       the trailer.
We will address each of the contested elements in turn.
       Bennett’s first argument, that the state failed to establish that he “wrongfully” took the
property, is based on the premise that he could not have wrongfully taken the property because
the property was lawfully in his possession when he transported the trailer to Washington. To
support this argument, he relies on both the statutory definition of “obtain” and this Court’s
opinion in State v. Henninger, 130 Idaho 638, 945 P.2d 864 (Ct. App. 1997).
       Idaho Code Section 18-2402(4) defines “obtain” as “to bring about a transfer of interest
or possession, whether to the offender or to another.” On this basis, Bennett argues that he could
not be found to have wrongfully obtained the trailer since LeFave had voluntarily given him
possession. However, it was reasonable for the jury to conclude that Bennett was not granted

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full possession but only a right to occupy the trailer on Ellinger’s property--as supported by
LeFave’s testimony that he had locked the hitch and explicitly told Bennett that he was not to
move the trailer himself. Thus, Bennett’s act of removing the trailer from Ellinger’s property
without LeFave’s permission and without first paying for it as the parties had agreed constituted
a wrongful taking criminalized in the theft statute, as it far exceeded the limited control that
LeFave had granted Bennett over the property.
       Bennett’s reliance on Henninger for the proposition that one cannot wrongfully take
property that is lawfully in one’s possession is likewise unavailing since that case is readily
distinguishable from the circumstances here. In Henninger, 130 Idaho at 640-41, 945 P.2d at
866-67, the defendant was charged with grand theft by unauthorized control in contravention of
I.C. § 18-2403(3), which occurs when a person “knowingly takes or exercises unauthorized
control over, or makes an unauthorized transfer of an interest in, the property of another person,
with the intent of depriving the owner thereof.”      The charge arose after Henninger signed an
installment sales contract with a car dealership to purchase a vehicle and a promissory note for
the down payment, but failed to make payment or return the vehicle to the dealership. The
dealership not only had given Henninger full possession, it had transferred title to him by
delivering to him all necessary title documents. Thus, when Henninger drove off the lot with the
vehicle, he was fully authorized and entitled to do so. On appeal, this Court concluded there was
insufficient evidence to establish that Henninger’s possession of the vehicle constituted
“unauthorized control” under the statute. Central to our decision was the determination that the
legislature had not intended the theft by unauthorized control provisions of the statute to apply
where a purchaser in a secured credit sale has defaulted on payments and the creditor has thereby
become entitled to retake possession of the goods. Id. at 641, 945 P.2d at 867. Although we
acknowledged that it legitimately could be argued, based on the statutory definition of “owner,”
that a party who holds only a security interest becomes the “owner” of the goods upon the
debtor’s default, we concluded it was unlikely that in adopting the statutory provisions
implicated, the Idaho legislature intended to criminalize the conduct of every person who misses
a payment on a secured credit purchase and does not immediately comply with a contractual
obligation to relinquish possession of the collateral to the secured seller. Id.
       In Henninger, this Court also considered the tradition against enforcing contractual
obligations through the criminal law. Article 1, § 15 of the Idaho Constitution provides that


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“[t]here shall be no imprisonment for debt in this state except in cases of fraud.” This provision
is intended to prohibit imprisonment over disputes which are contractual in nature, State v.
Owen, 129 Idaho 920, 928, 935 P.2d 183, 191 (Ct. App. 1997), and operates to avoid the
improbability of preventing honest insolvency by threat of prosecution, the danger of
discouraging healthy commercial risk-taking or of obtaining unjust convictions by hindsight, the
futility of imprisoning a debtor unable to pay, and the concept that the seller or lender must select
and accept his risks. Henninger, 130 Idaho at 642, 945 P.2d at 868. In Owen, 129 Idaho at 929,
935 P.2d at 192, we interpreted the constitutional provision, stating that:
               According to our Supreme Court in State v. Cochrane, 51 Idaho 521, 6
       P.2d 489 (1931), Art. 1 § 15 of the Idaho Constitution was “directed against
       imprisonment for debt, in civil actions, at the instance of the creditor with a view
       to coercing the payment of his debt, and had no reference to such actions as might
       be brought by the state through its officers in the interest of good morals and
       honest dealing.” 51 Idaho at 527, 6 P.2d at 491. The Court further held that
       statutes protecting an individual from imprisonment for debt were “not intended
       to take away the right to enforce criminal statutes and punish wrongful
       embezzlements or conversions of money.” Id.
       In this context, we ultimately concluded in Henninger that without a more explicit
expression of intent by the legislature to abandon the customary separation of criminal law from
civil contract enforcement, we could not conclude that the legislature intended unauthorized
control under the theft statute to encompass possession by a debtor who, by defaulting on one
payment, has become contractually obligated to return the collateral to the creditor, or that the
legislature intended the theft statute to be a mechanism that would aid the repossession efforts of
secured creditors. Henninger, at 642, 945 P.3d at 868 (quoting State v. Jesser, 95 Idaho 43, 50,
501 P.2d 727, 734 (1972)).
       Bennett insists that Henninger controls the situation presented here in regard to its
discussion of the reasons behind the distinction between civil and criminal liability in a contract
case. According to his interpretation, a holding that he wrongfully took the trailer would amount
to a holding that the owner of any vehicle who had not completed all payments to the creditor
could be guilty of theft if they quit making payments while in lawful possession of the vehicle--a
proposition that is counter to our holding in that case. See Henninger, 130 Idaho at 641-42, 945
P.2d at 867-68.
       However, even taking into account the broader principles of criminal liability in contract
cases discussed in Henninger, they do not support Bennett’s argument. In Henninger, 130 Idaho


                                                 6
at 641, 945 P.2d at 867, the defendant’s alleged criminal act was not taking possession of the
vehicle, but solely his failure to take the affirmative act of returning the vehicle to the dealership
when he defaulted on the payment. We specifically noted that:
       [t]he dealership . . . . relinquished to Henninger all the badges of ownership and
       did everything that it could do to transfer title to him. Consequently, when
       Henninger drove away in the pickup, it was not the property of another “owner”
       and his control of the vehicle was not “unauthorized.” Indeed, under the parties’
       contract, the dealership had no further right to possession except to the extent that
       it would be entitled to repossess the vehicle upon default by terms of the security
       agreement and Idaho law governing the rights of secured creditors.
In this case, by contrast, there was sufficient evidence that LeFave had not relinquished to
Bennett “all the badges of ownership,” but rather had explicitly retained both the title and his
right to possession of the trailer in that Bennett was not to move it without LeFave’s assistance.
Thus, Bennett was not prosecuted simply for his failure to complete payments to LeFave, but for
his action of removing the trailer from Ellinger’s property in contravention of LeFave’s explicit
instructions. In other words, Henninger had been given title (subject to the dealership’s security
interest), full possession of the vehicle, and inherent permission to move it freely, so his doing so
was not a criminal act. In this case, however, Bennett had been given only limited use in that he
was allowed to live in the trailer on Ellinger’s property, but was not allowed to move the trailer
as evidenced by LeFave’s precaution in locking the trailer hitch and telling Bennett that he was
not to move the trailer without LeFave’s knowledge. Thus, Bennett’s action in moving the
trailer could be criminal, while Henninger’s possession of the vehicle could not. As a result of
this distinction, the jury’s verdict in this case does not, as Bennett alleges, run afoul of the Idaho
constitutional provision prohibiting criminal enforcement of contractual obligations.
       Bennett also argues there was insufficient evidence that LeFave was the “owner” of the
trailer--i.e., that LeFave had a right to possession of the property that was superior to Bennett’s.
Specifically, Bennett asserts that under Uniform Commercial Code (UCC), “[u]nless otherwise
explicitly agreed, title passes to the buyer at the time and place at which the seller completes his
performance with reference to the physical delivery of the goods, despite any reservation of a
security interest and even though a document of title is to be delivered at a different time or
place.” I.C. § 28-2-401(2). Thus, he contends, when LeFave delivered the trailer to him, the
“title had passed” and that by accepting partial payment for the trailer and moving it to the




                                                  7
property where Bennett was staying, LeFave was “transferring” ownership of the trailer to
Bennett.
       To support his argument that the UCC definition applies in this case, Bennett relies on the
fact that in Jesser, 95 Idaho 43, 501 P.2d 727, the court analyzed when title to the goods
purchased had passed in reference to the UCC provision in the context of determining whether
there was sufficient evidence to convict the defendant of larceny. However, as the state points
out, the court’s reference to the UCC was contextual based on the circumstances of that case and
provides no authority for Bennett’s proposition that UCC provisions apply in a criminal context
to determine an “owner” where the theft statute itself already defines an “owner” as “any person
who has a right to possession thereof superior to that of the taker, obtainer or withholder.” I.C. §
18-2402(6). Further, under section 28-2-401(2), title passes upon the seller’s completion of
performance only if the parties have not “otherwise explicitly agreed.” Here, LeFave testified to
an explicit agreement that Bennett would not receive title to the trailer until he had paid the full
purchase price.4 Given the definition of “owner” set by the legislature in the theft statute, we
conclude there was sufficient evidence for a reasonable jury to find that LeFave possessed a
superior right to possession given that he retained both title and sole control over the location of
the trailer, and therefore by moving the trailer to Washington, Bennett had taken property from
the “owner.”
       Finally, Bennett contends that the state failed to show that he took the trailer with the
intent to “permanently deprive” LeFave of his interest in the property. His argument is based on
the premise that he had lawful possession of the trailer and was the owner of it and therefore, he
could not have possessed the intent to permanently deprive LeFave of something LeFave did not
have at the time of the alleged theft (namely “ownership” of the trailer).
       Bennett’s argument on this point is unavailing because, as we discussed above, Bennett
was never the “owner” of the trailer. Notably, Bennett does not argue that when he took the
trailer, he did not intend it to be a permanent deprivation--rather he focuses solely on his
assertion that even if he did intend to permanently keep the trailer, his act was not criminal
because he was the actual owner of the trailer. Thus, having discounted his assertion that LeFave


4
        Given our conclusion that Bennett’s argument based on I.C. § 28-22-401 is unavailing,
we need not address the interplay between the statute and I.C. § 49-503, which governs the
acquisition of title to vehicles.

                                                 8
no longer had ownership interest for Bennett to “permanently deprive,” we conclude there was
sufficient evidence whereby a reasonable jury could find that the state had proven this element of
the theft charge.
B.     Sentence Review
       Bennett claims that the sentence imposed was illegal because the persistent violator
enhancement, to which he pled guilty, could only be utilized to enhance his sentence on the
grand theft conviction as opposed to providing the basis for a separate, concurrent sentence as
occurred here.
       We decline to address this issue because Bennett did not raise it below. A claim of illegal
sentence is not an issue that may be presented for the first time on appeal. State v. Hoffman, 137
Idaho 897, 903, 55 P.3d 890, 896 (Ct. App. 2002). If Bennett wishes to bring this question to the
district court, he may yet do so under Idaho Criminal Rule 35. See State v. Huffman, 144 Idaho
201, 203, 159 P.3d 838, 840 (2007) (noting that Rule 35 allows a district court to correct an
illegal sentence at any time).
                                               III.
                                        CONCLUSION
       We conclude there was sufficient evidence presented whereby a reasonable jury could
find that each of the elements of the theft charge was proven beyond a reasonable doubt. Also,
we decline to address Bennett’s argument that his sentence was illegal, because he did not raise
the issue below. The judgment of conviction and sentences are affirmed.
       Chief Judge LANSING and Judge PERRY CONCUR.




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