               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43514

STATE OF IDAHO,                                 )    2016 Unpublished Opinion No. 815
                                                )
       Plaintiff-Respondent,                    )    Filed: December 9, 2016
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
CRAIG ANTHONY WILLEY,                           )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Defendant-Appellant.                     )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho,
       Elmore County. Hon. Jonathan Medema, District Judge.

       Judgment of conviction, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Jason C. Pintler, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Craig Anthony Willey appeals from his judgment of conviction entered after a jury found
him guilty of possession of a controlled substance, methamphetamine. Willey argues the district
court erred in denying his request for a mistake of fact instruction under Idaho Criminal Jury
Instruction 1510 because Willey’s defense at trial was that he did not know the glass pipes he
possessed contained methamphetamine. The State argues Willey’s proposed instruction was
adequately covered by given instructions, and the district court correctly concluded it applied
only to specific intent crimes. Further, the State argues even if the district court erred by not
giving Willey’s proposed instruction, such error was harmless. We hold the district court did not
err in declining to give Willey’s proposed instruction.




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                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       An officer stopped Willey for having a taillight out on the passenger side of his vehicle.
Willey got out of the vehicle and the officer showed Willey the taillight that was out. The officer
testified, “[Willey’s] hands were going in and out of his sleeve, his right hand was. He--the
fingers were fidgety. He had a little sweat on his forehead.” The officer also testified Willey’s
speech was “a little fast for what I’m used to” and that Willey “kept looking around. His eyes
would dart to me and then look over this way and then look over there.” The officer requested
Willey return to his vehicle because Willey “appeared nervous like there--fidgeting, possibly
under the influence of something.” The officer then returned to his patrol vehicle and requested
a backup officer.
       While the officer called for backup, Willey exited his vehicle and ran away from the
officer. The officer pursued Willey and yelled, “Stop” and told Willey “he’d get Tased.” The
officer noticed as Willey was running his hands were up toward the front of his waistband area.
Willey attempted to jump a fence and the officer ordered Willey “to get on the ground.” Willey
refused and the officer deployed his Taser. Thereafter, the officer handcuffed Wiley as the
backup officer arrived.
       The first officer searched Willey and discovered two glass pipes in his pockets. One pipe
had a bulb on one end and was partially broken. The officer testified the pipe with the bulb had
“a streak of residue in it, but not very much. It looked pretty clean.” The second pipe was a
“long, straight glass tube and it had a black and sort of white residue in it.” One of the glass
pipes tested positive for methamphetamine.
       The State charged Willey with possession of a controlled substance, methamphetamine,
Idaho Code Section 37-2732(c)(1), and the following misdemeanors: driving without privileges,
I.C. § 18-8001; obstructing and/or resisting an officer, I.C. § 18-705; and possession of drug
paraphernalia, I.C. § 37-2734A. Willey pleaded not guilty and the case was set for trial.
       Prior to trial, the State filed a motion to dismiss the charge of driving without privileges;
the court granted the motion. At trial on the remaining charges, Willey testified he was on
felony probation in Oregon and not allowed to leave Oregon, but he decided to help friends
move to Idaho. Willey is a self-employed tattoo artist and glass artist. Willey testified that
approximately one day before his arrest in Idaho, he obtained the glass pipes in Oregon with the

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intent of re-blowing the glass. Willey explained, “I’m an artist and I blow glass. I do make glass
roses and everything else. I don’t just make paraphernalia.” Willey testified he did not use these
specific glass pipes for methamphetamine. He attempted to clean the pipes and “thought it was
all cleaned out.”
       Willey’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.
To support giving ICJI 1510, Willey’s trial counsel relied upon State v. Armstrong, 142 Idaho
62, 122 P.3d 321 (Ct. App. 2005). The district court denied the request to instruct the jury on
ICJI 1510, explaining:
       I’m not giving the proposed jury instruction, [ICJI] 1510, because that jury
       instruction is designed for the situation where it is a specific intent crime. The--
       what the--the possession of a controlled substance has been ruled over and over
       and over again that it is a general intent, and therefore, the general intent
       instruction is the appropriate one.
               Anderson1 really doesn’t stand for the proposition that 1510 is an
       appropriate jury instruction. What it stands for is that the State--and this has been
       the law for quite some time--the State is--must prove beyond a reasonable doubt
       that, in fact, the defendant knew what it was that he possessed or that it was a
       controlled substance. That’s what it really stands for. And that--and they also
       ruled that the jury instructions, the very same jury instructions that we are using
       here, was--they were sufficient to explain to the jury that it was, in fact, the
       burden on the State to prove beyond a reasonable doubt. Knowledge is an
       element of the crime. So I’m not going to give it.
       The jury found Willey guilty of felony possession of a controlled substance,
methamphetamine, and the misdemeanors of obstructing and/or resisting an officer and
possession of drug paraphernalia. The district court sentenced Willey to a unified sentence of
four years, with two years determinate, for felony possession of a controlled substance,
methamphetamine.      For the misdemeanors of obstructing and/or resisting an officer and

1
        The district court incorrectly referred to “Anderson” when it meant to reference State v.
Armstrong, 142 Idaho 62, 122 P.3d 321 (Ct. App. 2005). The district court acknowledged its
error and clarified that it was referring to Armstrong.
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possession of drug paraphernalia, the district court sentenced Willey to 210 days for each count,
to be served concurrently, with credit for time served. Willey timely appeals.
                                                II.
                                   STANDARD OF REVIEW
       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).
                                                III.
                                           ANALYSIS
       On appeal, Willey argues he is entitled to a mistake of fact defense instruction pursuant to
ICJI 1510. Willey argues the district court erred in denying Willey’s 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.” Willey also argues the district court erred
when it concluded ICJI 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 Willey’s proposed mistake
of fact instruction, and the district court correctly concluded ICJI 1510 is limited to specific
intent crimes. Even if the district court erred by not instructing the jury pursuant to ICJI 1510,
the State contends such error was harmless.
       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;
(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.

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        The issue in this case is whether the given jury instructions adequately addressed
Willey’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) (quoting 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).
        In this case, there was some evidence that Willey mistakenly believed methamphetamine
was not present in the glass pipes. As noted above, Willey testified he obtained the pipes with
the intention of re-blowing the glass and did not use these specific pipes for methamphetamine.
Willey also testified he attempted to clean the pipes and “thought it was all cleaned out.” The
district court instructed the jury as follows:
        Instruction No. 13:
                In every crime or public offense there must exist a union or joint operation
        of act and intent.
        Instruction No. 14:
                In order for the defendant to be guilty of Possession of a Controlled
        Substance, as charged in Count I of the Information, the state must prove each of
        the following:
                1. On or about 13th day of December 2014
                2. in the state of Idaho
                3. the defendant CRAIG ANTHONY WILLEY possessed any amount of
                   methamphetamine and
                4. the defendant knew it was methamphetamine or a controlled substance.

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             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, then you must find the defendant guilty.
       Instruction No. 16:
              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.
       Taken as a whole, the given jury instructions adequately covered Willey’s proposed
mistake of fact instruction. Willey requested the court instruct the jury to consider Willey’s
testimony that he mistakenly believed he cleaned all of the methamphetamine out of the glass
pipes when it determined whether Willey had the required intent to possess methamphetamine
under I.C. § 37-2732(c). 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 jury was instructed to
consider all the evidence presented, which included Willey’s testimony that he mistakenly
believed certain facts--that the pipes did not contain any residual controlled substance. In order
for the jury to find Willey guilty, it was necessary for the jury to consider Willey’s testimony
regarding   his   mistaken   belief   to   determine   whether   Willey knowingly possessed
methamphetamine. Moreover, the jury had to specifically reject Willey’s mistake of fact defense
in order to find Willey guilty beyond a reasonable doubt of this element. As such, the given
instructions adequately covered Willey’s proposed mistake of fact instruction, and the district
court did not err in declining to give Willey’s proposed mistake of fact instruction. Given this
holding, we need not address Willey’s argument that ICJI 1510 is not limited to specific intent
crimes, nor do we need to address the State’s harmless error argument.
                                               IV.
                                           CONCLUSION
       For the reasons set forth above, we hold the district court did not err in declining to give
Willey’s proposed mistake of fact jury instruction because the given jury instructions adequately
addressed Willey’s mistake of fact defense. Thus, we affirm Willey’s judgment of conviction.
       Chief Judge MELANSON and Judge GRATTON CONCUR.




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