               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42858

TROY DWAYNE PAYNE,                               ) 2016 Opinion No. 16
                                                 )
       Petitioner-Appellant,                     ) Filed: February 26, 2016
                                                 )
v.                                               ) Stephen W. Kenyon, Clerk
                                                 )
STATE OF IDAHO,                                  )
                                                 )
       Respondent.                               )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho,
       Elmore County. Hon. Lynn G. Norton, District Judge.

       Judgment summarily dismissing petition for post-conviction relief, affirmed in
       part, vacated in part, and remanded.

       Nevin, Benjamin, McKay & Bartlett, LLP; Deborah Whipple, Boise, for
       appellant.

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

MELANSON, Chief Judge
       Troy Dwayne Payne appeals from the district court’s judgment summarily dismissing his
petition for post-conviction relief. Specifically, Payne argues he raised a genuine issue of
material fact regarding ineffective assistance of his trial counsel for failing to request jury
instructions on two defenses--innocent or temporary possession and misfortune or accident. For
the reasons set forth below, the district court’s order summarily dismissing Payne’s petition for
post-conviction relief is affirmed in part, vacated in part, and remanded.
                                                 I.
                                  FACTS AND PROCEDURE
       Without any prior notice, Payne went to the home of a law enforcement officer and
handed the officer a small container filled with methamphetamine. Payne was charged with

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possession of a controlled substance, I.C. § 37-2732(c)(1), for possessing the methamphetamine
that he gave to the officer. At trial, Payne testified that an acquaintance tossed the container into
Payne’s car and, in an effort to “do the right thing,” he took it to the police as soon as he realized
that it contained drugs. Payne appealed his judgment of conviction and this Court affirmed in an
unpublished opinion. State v. Payne, Docket No. 38918 (Ct. App. Aug. 2, 2012). Payne filed a
petition for post-conviction relief, alleging that his trial counsel was ineffective for failing to
request a jury instruction on the defense of innocent or temporary possession. He also alleged
that his trial counsel was ineffective for failing to raise as a defense and provide a jury
instruction consistent with I.C. § 18-201(3), which provides a defense for those who committed
an act or made an omission charged through misfortune or by accident when it appears that there
was not evil design, intention, or culpable negligence. The district court summarily dismissed
both claims, holding Payne’s claims were barred by res judicata and Payne had not raised an
issue of material fact regarding his counsel’s ineffective assistance. Payne appeals.
                                                 II.
                                   STANDARD OF REVIEW
       A claim of ineffective assistance of counsel may properly be brought under the
post-conviction procedure act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30
(Ct. App. 1992). To prevail on an ineffective assistance of counsel claim, the petitioner must
show that the attorney’s performance was deficient and that the petitioner was prejudiced by the
deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho
313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the petitioner has the
burden of showing that the attorney’s representation fell below an objective standard of
reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To establish
prejudice, the petitioner must show a reasonable probability that, but for the attorney’s deficient
performance, the outcome of the trial would have been different. Id. at 761, 760 P.2d at 1177.
This Court has long adhered to the proposition that tactical or strategic decisions of trial counsel
will not be second-guessed on appeal unless those decisions are based on inadequate preparation,
ignorance of relevant law, or other shortcomings capable of objective evaluation. Howard v.
State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct. App. 1994).




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       A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C.
§ 19-4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v.
Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921,
828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove
by a preponderance of evidence the allegations upon which the request for post-conviction relief
is based. Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition
for post-conviction relief differs from a complaint in an ordinary civil action. Dunlap v. State,
141 Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much more than a short
and plain statement of the claim that would suffice for a complaint under I.R.C.P. 8(a)(1).
Rather, a petition for post-conviction relief must be verified with respect to facts within the
personal knowledge of the petitioner, and affidavits, records, or other evidence supporting its
allegations must be attached or the petition must state why such supporting evidence is not
included with the petition. I.C. § 19-4903. In other words, the petition must present or be
accompanied by admissible evidence supporting its allegations or the petition will be subject to
dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011).
       Idaho Code Section 19-4906 authorizes summary dismissal of a petition for
post-conviction relief, either pursuant to a motion by a party or upon the court’s own initiative, if
it appears from the pleadings, depositions, answers to interrogatories, and admissions and
agreements of fact, together with any affidavits submitted, that there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. When considering
summary dismissal, the district court must construe disputed facts in the petitioner’s favor, but
the court is not required to accept either the petitioner’s mere conclusory allegations,
unsupported by admissible evidence, or the petitioner’s conclusions of law. Roman v. State, 125
Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715
P.2d 369, 372 (Ct. App. 1986). Moreover, the district court, as the trier of fact, is not constrained
to draw inferences in favor of the party opposing the motion for summary disposition; rather, the
district court is free to arrive at the most probable inferences to be drawn from uncontroverted
evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such
inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify
them. Id.


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       Claims may be summarily dismissed if the petitioner’s allegations are clearly disproven
by the record of the criminal proceedings, if the petitioner has not presented evidence making a
prima facie case as to each essential element of the claims, or if the petitioner’s allegations do
not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281
(2010); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary
dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a
matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in
the petitioner’s favor. For this reason, summary dismissal of a post-conviction petition may be
appropriate even when the state does not controvert the petitioner’s evidence. See Roman, 125
Idaho at 647, 873 P.2d at 901.
       Conversely, if the petition, affidavits, and other evidence supporting the petition allege
facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be
summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004);
Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of
material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues.
Goodwin, 138 Idaho at 272, 61 P.3d at 629.
       On appeal from an order of summary dismissal, we apply the same standards utilized by
the trial courts and examine whether the petitioner’s admissible evidence asserts facts which, if
true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925,
929 (2010); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free
review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33
P.3d 841, 844 (Ct. App. 2001).
                                                 III.
                                            ANALYSIS
A.     Res Judicata
       In its order summarily dismissing Payne’s petition for post-conviction relief, the district
court held:
       [T]he conclusion of the Court of Appeals in the direct appeal that the failure of
       the court to instruct on the defense of “misfortune or accident” under Idaho Code
       § 18-201(3), had such issue been preserved for appeal, was harmless error is res
       judicata and binding on this court. The Court of Appeals concluded that the


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       failure to instruct on misfortune or accident was harmless error . . . [and] declared
       beyond a reasonable doubt that the error did not contribute to the verdict.

       The principles of res judicata apply when a petitioner attempts to raise the same issues
previously ruled upon on direct appeal in a subsequent petition for post-conviction relief.
Knutsen v. State, 144 Idaho 433, 439, 163 P.3d 222, 228 (Ct. App. 2007). On direct appeal, the
sole issue was whether the district court erred by denying Payne the opportunity to testify
regarding his lack of intent to possess methamphetamine, thereby preventing Payne from
presenting his defense to the charge. This Court’s ruling was narrow. We held that the district
court did not preclude Payne’s testimony regarding his intent to possess methamphetamine. This
Court further held that, even if the district court had ruled that Payne could not present his
defense, the error would have been harmless because Payne testified, nonetheless, that he did not
intend to possess methamphetamine.
       This Court’s opinion did not address whether Payne’s trial counsel was ineffective for
failing to request a jury instruction regarding his defense. To the contrary, this Court’s opinion
explained that the failure to instruct the jury on misfortune or accident, in accordance with
I.C. § 18-201(3), was attributable to Payne, whose trial counsel failed to request the jury
instruction despite presenting evidence and argument consistent with the defense and despite the
district court’s request for such a jury instruction. Because Payne has not raised the same issue
on post-conviction as was raised on direct appeal, his claim of ineffective assistance of counsel is
not barred by the principle of res judicata. Therefore, the district court erred in dismissing
Payne’s petition for post-conviction relief on the basis of res judicata.
B.     Failure to Request Jury Instructions
       1.      Innocent possession or temporary possession
       Payne alleges that he raised a genuine issue of material fact that his trial counsel was
ineffective for failing to request a jury instruction on the defense of innocent or temporary
possession. Payne acknowledges that Idaho courts have not addressed the question of whether
Idaho recognizes a defense of innocent or temporary possession, although he cites to cases from
several jurisdictions that have adopted the defense. While the failure to advance an established
legal theory may result in ineffective assistance of counsel under Strickland, the failure to
advance a novel theory will not. Piro v. State, 146 Idaho 86, 91, 190 P.3d 905, 910 (Ct. App.


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2008). The defense theory of innocent or temporary possession is not established under Idaho
law and, therefore, Payne’s trial counsel was not objectively deficient for failing to request a jury
instruction on that defense.
       2.      Idaho Code Section 18-201(3)
       Payne also alleged that his trial counsel was ineffective for failing to provide a jury
instruction consistent with I.C. § 18-201(3), which provides:
               All persons are capable of committing crimes, except those belonging to
       the following classes:
               ....
               (3)     Persons who committed the act or made the omission charged,
       through misfortune or by accident, when it appears that there was not evil design,
       intention or culpable negligence.
The questions here are whether Payne’s trial counsel’s failure to request a jury instruction
consistent with I.C. § 18-201(3) constitutes deficient performance and whether Payne was
prejudiced by trial counsel’s deficiency.
       In our opinion on direct appeal, this Court explained:
       [D]uring closing arguments, defense counsel presented extensive arguments,
       without objection, that as soon as Payne discovered that he possessed narcotics,
       he attempted to do the right thing and that he did not have the intent to possess
       them because his only intent was to turn them over to the police. The district
       court repeatedly invited defense counsel to submit proposed instructions to
       support his defense theory and to provide the court with supporting case law, but
       defense counsel declined to do so. It is thus apparent that the district court did not
       prevent any presentation of a defense by Payne; Payne was allowed to testify
       about how he came into possession of the methamphetamine and about his intent
       or motive to deliver it to law enforcement, and the district court did not reject any
       jury instruction regarding the claimed defense inasmuch as Payne never requested
       one.
In addition, this Court explained:
       [T]he State readily acknowledges that “circumstances such as [those] alleged by
       Payne, where an otherwise innocent person accidentally or unintentionally
       acquires possession of a controlled substance he or she does not want, falls within
       this statute.” However, in the district court defense counsel never referred to this
       statute or to a “misfortune or accident defense” and did not request any jury
       instruction based on the statute. Because Payne did not raise a defense of
       accident or misfortune at trial, nor refer to this statute, the issue is not preserved
       for appeal and we do not address it.



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This Court’s holding on direct appeal, reiterated by Payne in his petition for post-conviction
relief, is sufficient to meet Payne’s prima facie burden under Strickland of providing evidence
that his trial counsel’s performance was deficient.
       In order to prove prejudice, Payne provided an affidavit from one of the jurors at Payne’s
trial. In her affidavit, the juror explained that, based on the jury instructions given by the district
court, the juror felt constrained to find Payne guilty under the law provided. The juror also
explained that, after rendering the verdict, the juror was so distressed that she wrote a letter to
district court explaining the juror’s concerns with the law. Most importantly, the juror explained
that had the jury “been instructed that it could have found Mr. Payne not guilty if he only
possessed the methamphetamine long enough to turn it over to law enforcement, [I] would have
voted to acquit Mr. Payne.”
       The state argues that I.R.E. 606(b) precluded the district court from considering
statements the juror made in her affidavit. Rule 606(b) provides:
               Upon an inquiry into the validity of a verdict or indictment, a juror may
       not testify as to any matter or statement occurring during the course of the jury’s
       deliberations or to the effect of anything upon the juror’s or any other juror’s
       mind or emotions as influencing the juror to assent to or dissent from the verdict
       or indictment or concerning the juror’s mental processes in connection therewith,
       nor may a juror’s affidavit or evidence of any statement by the juror concerning a
       matter about which the juror would be precluded from testifying be received for
       these purposes, but a juror may testify on the questions whether extraneous
       prejudicial information was improperly brought to the jury’s attention or whether
       any outside influence was improperly brought to bear upon any juror and may be
       questioned about or may execute an affidavit on the issue of whether or not the
       jury determined any issue by resort to chance.
The Idaho appellate courts have held that neither juror testimony nor juror affidavits are
admissible to prove prejudice in a post-conviction case. See Roberts v. State, 132 Idaho 494,
496, 975 P.2d 782, 784 (1999); Reynolds v. State, 126 Idaho 24, 27, 878 P.2d 198, 201 (Ct. App.
1994). Accordingly, the juror’s affidavit was inadmissible under Rule 606(b).
       Because the juror’s affidavit was not admissible, our next inquiry is whether Payne
provided other evidence that he was prejudiced by his trial counsel’s deficient performance.
Payne provided some evidence that his direct appeal was prejudiced by his trial counsel’s failure
to request a jury instruction on the defense of misfortune or accident under I.C. § 18-201(3). As
noted above, this Court declined to address one of Payne’s issues on appeal because it was not


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preserved. In addition, at trial, Payne testified that he obtained the methamphetamine when it
was thrown to him without his request, knowledge, or consent and that he took it directly to an
officer. The state offered no evidence to rebut Payne’s testimony regarding how he came into
possession of the methamphetamine.1        Idaho Criminal Jury Instruction 1508 (misfortune or
accident) closely follows I.C. § 18-201(3) and provides:
              All persons are capable of committing crimes, except those who
       committed the act or made the omission charged through misfortune or by
       accident when it appears that there was not evil design, intention or culpable
       negligence.
If the jury believed Payne’s testimony, it would have been required to acquit Payne under
I.C. § 18-201(3) because Payne would not have been capable of committing the crime of
possession of a controlled substance under those circumstances. However, because the jury was
not provided an instruction consistent with I.C. § 18-201(3), the jury was bound to find Payne
guilty of possession of a controlled substance, even if it believed Payne’s story regarding how he
came into possession of the methamphetamine. Under the circumstances of this case, Payne’s
unrebutted testimony, coupled with a failure to request a jury instruction consistent with
I.C. § 18-201(3), leads this Court to conclude that Payne met his prima facie burden of
demonstrating prejudice. Because Payne raised a genuine issue of material fact regarding his
trial counsel’s ineffective assistance, the district court’s summary dismissal of Payne’s petition
for post-conviction relief was error.
                                                IV.
                                         CONCLUSION
       The district court erred in dismissing Payne’s petition for post-conviction relief on the
basis of res judicata because the issues raised to this Court on direct appeal were distinct from
the issues raised in his petition for post-conviction relief before the district court. Payne did not
establish a genuine issue of material fact regarding his trial counsel’s deficient performance for
failing to request a jury instruction on the defense of innocent or temporary possession.
However, Payne did establish a genuine issue of material fact regarding his trial counsel’s
deficient performance for failing to request a jury instruction consistent with I.C. § 18-201(3).

1
        On direct appeal, the state conceded that the evidence presented to the jury supported an
instruction on accident or misfortune, consistent with I.C. § 18-201(3).

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Therefore, we affirm summary dismissal of the claim regarding innocent or temporary
possession and vacate and remand as to the claim relating to I.C. § 18-201(3). Costs, but not
attorney fees, are awarded to Payne on appeal.
       Judge GRATTON and Judge HUSKEY, CONCUR.




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