               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 44972

STATE OF IDAHO,                                )
                                               )    Filed: July 20, 2018
       Plaintiff-Respondent,                   )
                                               )    Karel A. Lehrman, Clerk
v.                                             )
                                               )    THIS IS AN UNPUBLISHED
BRIAN DOUGLAS HANSON,                          )    OPINION AND SHALL NOT
                                               )    BE CITED AS AUTHORITY
       Defendant-Appellant.                    )
                                               )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. John T. Mitchell, District Judge.

       Judgment of conviction, affirmed; order revoking probation, reversed.

       Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Brian Douglas Hanson appeals from his judgment of conviction for possession of
methamphetamine and possession of paraphernalia.         Hanson also appeals from the district
court’s order revoking his probation. On appeal, he argues that the district court erred when it
denied his mistake of fact jury instruction and that the court erred by revoking his probation
based on a failed urinalysis ordered at the outset of probation. For the reasons provided below,
we affirm the judgment of conviction and reverse the order revoking probation.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       An officer stopped Hanson for having an active arrest warrant. After verifying the
warrant, the officer took Hanson into custody and initiated an inventory of Hanson’s vehicle.
The inventory uncovered a sunglasses case in the center console. Inside the sunglasses case were

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small baggies of methamphetamine and a glass pipe. At the time of his arrest, Hanson denied
there was a “methamphetamine pipe” in his vehicle and stated he was unaware of the sunglasses
case containing methamphetamine and glass pipe in his vehicle.
        The State charged Hanson with possession of methamphetamine, Idaho Code § 37-
2732(c)(1), and possession of drug paraphernalia, I.C. § 37-2734A. Hanson pleaded not guilty,
and the case was set for trial.
        Hanson’s trial counsel requested the district court to instruct the jury pursuant to Idaho
Criminal Jury Instruction 1510, which provides:
                For the defendant to be guilty of [name of offense], the state must prove
        the defendant had a particular intent. Evidence was offered that at the time of the
        alleged offense the defendant [was ignorant of] [or] [mistakenly believed] certain
        facts. You should consider such evidence in determining whether the defendant
        had the required intent.
                If from all the evidence you have a reasonable doubt whether the
        defendant had such intent, you must find the defendant not guilty.
The district court denied the request to instruct the jury on I.C.J.I. 1510, explaining:
        The comment to 1510, one five one zero, ignorance of mistake or fact, is set forth
        right in the defendant's proposed instruction, and I do appreciate that, but in that it
        says ignorance or mistake of fact is only a defense to a crime having a specific
        intent as an element. 403, the comment says, “In State v. Fox, and I won’t read
        the citation, ‘Supreme Court held Idaho Code 37-2732(c) does not set forth any
        mental state as an element of the crime of possession of a controlled substance.’”
        Thus, as the statute does not expressly require any mental element and Idaho
        Code 18-114 only requires a general intent, we conclude the offense only requires
        a general intent; that is, the knowledge that one is in possession of the substance.
        The Court held that the defendant’s lack of knowledge that the substance was
        illegal was irrelevant, and so I think it’s error for me to give 1510, so I’m refusing
        1510.
        The jury found Hanson guilty of felony possession of methamphetamine and possession
of drug paraphernalia. The district court sentenced Hanson to a unified sentence of five years,
with two years determinate, suspended the sentence and placed Hanson on probation for a period
of three years for possession of methamphetamine. The court sentenced Hanson to 180 days for
possession of drug paraphernalia, with 175 days suspended, placed Hanson on unsupervised
probation for a period of two years, and awarded five days of credit for time served. The district
court also sentenced Hanson to thirty days in jail to be served immediately and ninety days of
discretionary jail time. The sentences were to run concurrent. One of the terms and conditions
the court placed on Hanson’s probation was that Hanson be tested for drug use upon reaching the

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jail. If he tested positive, the court conditioned, then Hanson would be in violation of his
probation. Following sentencing, Hanson was immediately transported to the jail and submitted
to a urinalysis test the following afternoon. Upon testing positive, the district court found
Hanson violated his probation, which resulted in probation revocation. 1 Hanson timely appeals.
                                                 II.
                                            ANALYSIS
       On appeal, Hanson argues he is entitled to a mistake of fact defense instruction pursuant
to I.C.J.I. 1510. Alternatively, Hanson argues the district court erred in revoking his probation
due to his testing positive immediately following his placement on probation.
A.     Jury Instruction
       Hanson argues the district court erred in denying his proposed instruction because “a
reasonable view of the evidence in the case would support the mistake of fact defense theory
articulated in the purposed [sic] instruction.” Hanson also argues the district court erred when it
concluded I.C.J.I. 1510 is limited in its application to specific-intent crimes and is inapplicable in
this case because possession of a controlled substance is a general intent crime. The State argues
the instructions taken as a whole adequately covered Hanson’s proposed mistake of fact
instruction.
       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).
       A 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; Severson, 147 Idaho at 710, 215 P.3d at
430. 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). Each party is entitled to request the delivery of specific
instructions. State v. Weeks, 160 Idaho 195, 198, 370 P.3d 398, 401 (Ct. App. 2016). 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;

1
       Two weeks after this appeal, the district court reinstated Hanson’s probation.
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(2) adequately covered by the other instructions; or (3) not supported by the facts of the case.
Severson, 147 Idaho at 710-11, 215 P.3d at 430-31; Weeks, 160 Idaho at 198, 370 P.3d at 401.
       The issue in this case is whether the given jury instructions adequately addressed
Hanson’s mistake of fact defense. The statutory basis for a defense based upon mistake of fact is
I.C. § 18-201, which provides that persons who committed the act or made the omission charged
under an ignorance or mistake of fact which disproves any criminal intent are not capable of
committing crimes. Although the crime of possession of a controlled substance pursuant to I.C.
§ 37-2732(c) does not expressly require a mental element, I.C. § 18-114 provides that “in every
crime or public offense there must exist a union, or joint operation, of act and intent, or criminal
negligence.” The Court has explained that the intent required by I.C. § 18-114 is not the intent to
commit a crime, but is merely the intent to knowingly perform the prohibited act. State v. Fox,
124 Idaho 924, 926, 866 P.2d 181, 183 (1993); State v. Parish, 79 Idaho 75, 78, 310 P.2d 1082,
1083 (1957). “[A]s I.C. § 37-2732(c) does not expressly require any mental element and
I.C. § 18-114 only requires a general intent, we conclude that the offense only requires a general
intent, that is, the knowledge that one is in possession of the substance.” Fox, 124 Idaho at 926,
866 P.2d at 183. The requisite knowledge of the presence of a controlled substance may be
proved by direct evidence or may be inferred from the circumstances. State v. Armstrong, 142
Idaho 62, 65, 122 P.3d 321, 324 (Ct. App. 2005).
       The State introduced evidence wherein Hanson stated there was no methamphetamine
pipe in his car and denied knowledge of the sunglasses case. The district court instructed the
jury as follows:
       Instruction No. 12a:
              In order for the defendant to be guilty of Possession of a Controlled
       Substance (Methamphetamine), the state must prove each of the following:
              1. On or about 28th day of May, 2016;
              2. in the state of Idaho;
              3. the defendant, BRIAN DOUGLAS HANSON, possessed any amount
                  of methamphetamine, and;
              4. the defendant knew it was methamphetamine or believed it was a controlled
                  substance.
              If any of the above has not been proven beyond a reasonable doubt, then
       you must find the defendant not guilty. If each of the above has been proven
       beyond a reasonable doubt, you must find the defendant guilty.
       Instruction No. 12b:
              A person has possession of something if the person knows of its presence
       and has physical control of it, or has the power and intention to control it. More
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       than one person can be in possession of something if each knows of its presence
       and has the power and intention to control it.
       Instruction No. 13a:
              1. On or about 28th day of May, 2016;
              2. in the state of Idaho;
              3. the defendant, BRIAN DOUGLAS HANSON, possessed drug
                  paraphernalia;
              4. with the intent to use a controlled substance.
              If any of the above has not been proven beyond a reasonable doubt, then
       you must find the defendant not guilty. If each of the above has been proven
       beyond a reasonable doubt, you must find the defendant guilty.
       Instruction No. 13b:
              Drug Paraphernalia means all equipment, products and materials of any
       kind which are used, intended for use, or designed for use, in planting,
       propagating, cultivating, growing, harvesting manufacturing, compounding,
       converting, producing, processing, preparing, testing, analyzing, packaging,
       repackaging, storing, containing, injecting, ingesting, inhaling, or otherwise
       introducing a controlled substance into the human body.
       Instruction No. 14a:
               In every crime or public offense there must exist a union or joint operation
       of act and intent.
       Hanson relies on State v. Blake, 133 Idaho 237, 985 P.2d 117 (1999), to support his
assertion that an additional instruction was needed to properly instruct the jury regarding the
degree of proof required for the knowledge element. At the time Blake was decided, to prove the
knowledge element of possession of a controlled substance, the State had to show that the
“Defendant knew or should have known that the substance possessed was a controlled
substance.” Id. at 241, 985 P.2d at 121. Thus, without additional instructions, the jury was
allowed to convict the defendant using a negligence standard. Id. Further, the jury could convict
the defendant if he knew there was some substance in his car, but truly believed, albeit
negligently, that the substance was harmless. Id. Idaho Criminal Jury Instruction 403 has since
changed to include an intent element, therefore Blake is inapplicable. State v. Heiner, 163 Idaho
99, 102, 408 P.3d 97, 100 (Ct. App. 2017). Here, the knowledge element required the jury to
find that Hanson possessed a controlled substance and knew it was a controlled substance. Thus,
the same concern the Court had in Blake is not present here because the jury could not have
convicted based on a negligence standard.
       The State relies on Heiner to support its assertion that the instructions provided were
adequate. Hanson argues that Heiner is distinguishable in two respects. First, that Heiner did

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not discuss a specific-intent crime. Second, that Heiner did not evaluate the pattern instruction
which Hanson requested. In support, Hanson contends the commentary to I.C.J.I. 1510 “says the
pattern instruction should be given when the charged offense is a specific-intent crime.” This is
incorrect. The comment states: “Ignorance or mistake of fact is only a defense to a crime having
a specific intent as an element.” Nothing in the comment indicates that this instruction should be
given but, rather, the comment clarifies that it is only applicable to specific-intent crimes.
Therefore, while it is an appropriate instruction for a specific-intent crime, it is not a required
instruction, nor even a recommended instruction.
       Hanson also likens I.C.J.I. 1510 to I.C.J.I. 1506. Idaho Criminal Jury Instruction 1506
instructs that the defendant’s mental illness is relevant when the State is required to prove a
particular intent. The comment to the instruction provides: “If specific intent, state of mind,
purpose or motive is an issue, give this instruction and I.C.J.I. 1505.” There is no such direction
in the commentary of I.C.J.I. 1510. Rather, the commentary to I.C.J.I. 1510 merely indicates
that the jury instruction is only proper for specific-intent crimes. Therefore, I.C.J.I. 1510 should
be given if the provided instructions do not adequately cover the law; however, contrary to
Hanson’s argument, the instruction is not mandatory.          Hanson’s argument that Heiner is
inapplicable because it did not involve a possession of paraphernalia charge does not necessarily
result in an automatic finding of error. The pertinent question is whether the given instructions,
taken as a whole, adequately address the subject of the requested instruction.
       Taken as a whole, the given jury instructions adequately covered Hanson’s proposed
mistake of fact instruction.    Hanson requested that the court instruct the jury to consider
Hanson’s statements to the officer that he was unaware of the methamphetamine or the glass
pipe in his vehicle when the jury determined whether Hanson had the required intent to possess
methamphetamine under I.C. § 37-2732(c) and paraphernalia under I.C. § 37-2734A. As noted
above, the required intent under I.C. § 37-2732(c) is the defendant’s knowledge that he is in
possession of methamphetamine. The required intent under I.C. § 37-2734A is the defendant’s
knowledge that he is in possession of drug paraphernalia and intends to utilize the paraphernalia
to use a controlled substance. The jury was instructed to consider all the evidence presented,
which included the State’s exhibit of Hanson’s statement that he had never before seen the
sunglasses case containing the methamphetamine and glass pipe. Hanson’s sole defense was that
he did not know that the contraband existed. Instruction 12b adequately instructs that a person is

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in possession if they “know of its presence.” In order for the jury to find Hanson guilty, it was
necessary for the jury to consider Hanson’s statement to the police officer regarding his lack of
knowledge to determine whether Hanson knowingly possessed methamphetamine and whether
Hanson knowingly possessed drug paraphernalia with the intent to use drugs. Moreover, the jury
had to specifically reject Hanson’s mistake of fact defense in order to find Hanson guilty beyond
a reasonable doubt of each of these elements. As such, the given instructions adequately covered
Hanson’s proposed mistake of fact instruction, and the district court did not err in declining to
give Hanson’s proposed mistake of fact instruction.
B.     Probation Revocation
       Hanson argues the district court did not have jurisdiction to revoke probation based on
the alleged violation because the term of probation which he was found to have violated regarded
acts which necessarily had to have been completed prior to his being placed on probation.
Alternatively, Hanson argues the district court erred in ruling that Hanson willfully violated
probation. The State argues the issue is moot, that the district court correctly ruled Hanson
violated a term of probation, and that Hanson willfully violated his probation.
       The State’s arguments are unavailing. A case becomes moot when the issues presented
are no longer live or the defendant lacks a legally cognizable interest in the outcome. Murphy v.
Hunt, 455 U.S. 478, 481 (1982); Bradshaw v. State, 120 Idaho 429, 432, 816 P.2d 986, 989
(1991). Even where a question is moot, there are three exceptions to the mootness doctrine:
(1) when there is the possibility of collateral legal consequences imposed on the person raising
the issue; (2) when the challenged conduct is likely to evade judicial review and thus is capable
of repetition; and (3) when an otherwise moot issue raises concerns of substantial public interest.
State v. Barclay, 149 Idaho 6, 8, 232 P.3d 327, 329 (2010). Regarding Hanson’s probation
revocation, the only relief Hanson requested cannot be granted because Hanson has been placed
back on probation. However, Hanson still faces the possibility of collateral legal consequences,
primarily prevention of having his felony reduced to a misdemeanor pursuant to I.C. § 19-
2604(1)(b). 2 As relevant here, I.C. § 19-2604 reads:
              (1)(a) Application for relief under this subsection may be made by the
       following persons who have pled guilty to or been found guilty of a crime:
       (i) A defendant whose sentence has been suspended or who has received a
       withheld judgment;

2
       Hanson incorrectly cites to Idaho Code § 19-2406(1)(b).
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               ....
               (1)(b) Upon application of the defendant and upon satisfactory showing
       that:
                      (i) The court did not find, and the defendant did not admit, in any
               probation violation proceeding that the defendant violated any of the terms
               or conditions of any probation that may have been imposed;
               ....
               the court, if convinced by the showing made that there is no longer cause
       for continuing the period of probation should the defendant be on probation at the
       time of the application, and that there is good cause for granting the requested
       relief, may terminate the sentence or set aside the plea of guilty or conviction of
       the defendant, and finally dismiss the case and discharge the defendant or may
       amend the judgment of conviction from a term in the custody of the state board of
       correction to “confinement in a penal facility” for the number of days served prior
       to sentencing, and the amended judgment may be deemed to be a misdemeanor
       conviction.
In determining whether the district court abused its discretion in granting relief pursuant to
I.C. § 19-2604(1)(b), our appellate courts require strict compliance with the statute and provide
great deference to trial courts in declining to grant relief. See, e.g., State v. Thompson, 140 Idaho
796, 798-99, 102 P.3d 1115, 1117-18 (2004), abrogated on other grounds by Verska v. Saint
Alphonsus Regional Medical Center, 151 Idaho 889, 265 P.3d 502 (2011); State v. Schwartz, 139
Idaho 360, 362, 79 P.3d 719, 721 (2003), abrogated on other grounds by Verska v. Saint
Alphonsus Regional Medical Center, 151 Idaho 889, 265 P.3d 502 (2011); State v. Schumacher,
131 Idaho 484, 487, 959 P.2d 465, 468 (Ct. App. 1998). Because our courts take such a strict
approach to application of I.C. § 19-2604(1)(b), there are potential collateral consequences that
could result from the order revoking Hanson’s probation, even though he has been placed back
onto probation. Therefore, the issue is not moot.
       A decision to revoke probation will be disturbed on appeal only upon a showing that the
trial court abused its discretion. State v. Beckett, 122 Idaho 324, 325, 834 P.2d 326, 327 (Ct.
App. 1992). In reviewing the propriety of a probation revocation, the focus of the inquiry is the
conduct underlying the trial court’s decision to revoke probation. State v. Morgan, 153 Idaho
618, 621, 288 P.3d 835, 838 (Ct. App. 2012). Thus, this Court will consider the elements of the
record before the trial court relevant to the revocation of probation issues which are properly
made part of the record on appeal. Id.
       When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the lower court correctly perceived the


                                                 8
issue as one of discretion, acted within the boundaries of such discretion and consistently with
any legal standards applicable to the specific choices before it, and reached its decision by an
exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
       The district court found a willful violation of the terms and conditions of Hanson’s
probation because Hanson tested positive for a controlled substance. This was error for two
reasons. First, because Hanson was not on probation when he engaged in the predicate act, his
actions were not subject to probationary restrictions.            See State v. Hancock, 111
Idaho 835, 838, 727 P.2d 1263, 1266 (Ct. App. 1986). Here, the positive urinalysis was a
product of actions taken by Hanson prior to being placed on probation. Thus, the predicate act of
ingesting a controlled substance, which resulted in the violation, did not occur during the time
Hanson was on probation, and therefore he did not violate his probation. Accordingly, the
district court did not apply the appropriate legal standard in finding Hanson was on probation
when he committed the predicate act.
       Second, Hanson’s violation was not willful. The applicable legal standard the district
court must utilize in determining whether to revoke probation is based upon whether the
violation was willful or nonwillful.     A defendant’s probation may only be revoked if the
defendant admits to or the court finds that the defendant willfully violated a condition of
probation. Idaho Criminal Rule 33(f); State v. Garner, 161 Idaho 708, 711, 390 P.3d 434, 437
(2017). For a defendant to willfully violate probation, the defendant must have a purpose or
willingness to commit the violation. See State v. Johnson, 74 Idaho 269, 275-76, 261 P.2d 638,
641 (1953). In contrast, a nonwillful violation is one that is beyond the probationer’s control.
State v. Leach, 135 Idaho 525, 529, 20 P.3d 709, 713 (Ct. App. 2001). Because Hanson ingested
the controlled substance prior to being on probation, he did not purposefully choose to violate a
probationary prohibition. Put another way, while on probation, Hanson did not act purposefully
in a way that was contrary to the terms and conditions of his probation. Thus, the district court
did not apply the appropriate legal standard in finding Hanson willfully violated his probation.
                                               III.
                                        CONCLUSION
       The given jury instructions adequately addressed Hanson’s mistake of fact defense.
Therefore, the district court did not err in declining to provide Hanson’s requested jury
instruction.   Acts committed before probation commences cannot violate the terms and

                                                9
conditions of probation.   Therefore, the district court erred in ruling Hanson violated his
probation. Alternatively, since Hanson’s probation was revoked due to acts he engaged in prior
to being placed on probation, Hanson did not purposefully commit a probation violation.
Therefore, the district court erred in ruling that Hanson’s violation was willful. Accordingly,
Hanson’s judgment of conviction is affirmed, and the order revoking his probation is reversed.
       Judge HUSKEY and Judge LORELLO CONCUR.




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