               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 44542

MICHAEL JARED THOMPSON,                         ) 2018 Opinion No. 5
                                                )
       Petitioner-Appellant,                    ) Filed: February 20, 2018
                                                )
v.                                              ) Karel A. Lehrman, Clerk
                                                )
STATE OF IDAHO,                                 )
                                                )
       Respondent.                              )
                                                )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho,
       Minidoka County. Hon. Jonathan P. Brody, District Judge.

       Order of summary dismissal of petition for post-conviction relief, reversed
       and case remanded.

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

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

GRATTON, Judge
       Michael Jared Thompson appeals from the district court’s order summarily dismissing his
petition for post-conviction relief. Specifically, Thompson argues that his claims raise a genuine
issue of material fact as to whether trial counsel was ineffective in basing the defense in an
involuntary manslaughter case on the existence of an intervening, superseding cause without
requesting proximate and intervening, superseding cause instructions. Similarly, Thompson
argues he properly presented a prima facie case of ineffective assistance of appellate counsel for
the failure to pursue the jury instruction issue on direct appeal. For the reasons explained below,
the district court’s order summarily dismissing Thompson’s petition for post-conviction relief is
reversed and the case is remanded for an evidentiary hearing.




                                                1
                                                   I.
                       FACTUAL AND PROCEDURAL BACKGROUND
          The factual background is derived from this Court’s unpublished opinion on direct
appeal:
                  Four friends went out drinking at two local bars in Minidoka County. The
          victim, Michael Blair, and his longtime friend, Kristen Kull, began to argue. By
          this time all four individuals were highly intoxicated. Thompson became irritated
          by the arguing and decided that they should all leave. The four friends left in
          Thompson’s truck. Thompson drove, Kull sat in the front passenger seat, Blair
          sat directly behind the driver’s seat, and Khali Jones sat behind the front
          passenger seat. Blair and Kull continued to argue as they drove towards
          Thompson’s house. Thompson interjected, “If one of you don’t shut up, I’m
          going to shoot somebody.” Jones could see that he had a gun in a holster. Blair
          laughed. Thompson responded, “You think I’m kidding?” He then removed the
          pistol from the holster and cocked the gun twice. Then holding the gun in his
          right hand, Thompson rested his elbow on the center console and pointed the gun
          up and backwards. Blair, who was known to be a jokester, responded, “If you’re
          going to shoot somebody, it might as well be me. End my miserable existence.”
          Blair then slid over, placed his hand on Thompson’s hand, and put his mouth
          around the barrel of the gun; the gun fired. The shot likely killed Blair instantly.
          Thompson told the others that Blair pulled the trigger. Jones could not see whose
          finger was on the trigger and she did not know who pulled it. Kull could not
          remember what occurred that night.
                  The State charged Thompson with involuntary manslaughter, with an
          enhancement for using a deadly weapon. After the above information was
          presented at trial, the jury found Thompson guilty as charged. The district court
          sentenced Thompson to fifteen years with five years determinate. Thompson
          subsequently filed an Idaho Criminal Rule 35 motion for leniency. The district
          court denied his motion.
See State v. Thompson, Docket No. 40796 (Ct. App. Nov. 7, 2014) (unpublished). On appeal, we
affirmed Thompson’s judgment of conviction and sentence for involuntary manslaughter with an
enhancement for using a deadly weapon.
          Thompson then filed a petition for post-conviction relief. Thompson’s first claim in his
petition was that his trial counsel was ineffective because he failed to request proximate cause
and intervening, superseding cause jury instructions. 1 Thompson’s second claim is not at issue.

1
          The relevant jury instructions given were:
          Instruction 10:
                  In order for the defendant to be guilty of involuntary manslaughter by
          negligent use of a deadly weapon the state must prove each of the following:
                  One, on or about December 16, 2011 and December 17, 2011;
                                                   2
Thompson’s third claim was that his appellate counsel was ineffective in failing to adequately
review the trial record and in failing to raise on appeal the issue of whether the district court’s
failure to instruct the jury on proximate and intervening, superseding cause constituted
fundamental error.
       In its motion for summary dismissal, the State responded to Thompson’s first claim by
asserting that the jury was properly instructed on the law. The State argued that it was not
required to prove or establish that Thompson’s actions were the proximate cause of the victim’s
death, only that Thompson operated “any firearm or deadly weapon in a reckless, careless or
negligent manner which produces death.” According to the State, it would not matter if the
deceased was the one who pulled the trigger because “introducing” the weapon in an unstable
situation in which somebody dies due to that weapon constitutes the crime. The State also
argued that “the giving of a jury instruction regarding proximate cause, as a matter of law, would
not have altered the verdict.”
       The district court agreed with the State that the giving of a proximate cause jury
instruction would not have altered the verdict, but declined to rule that proximate cause was not
required under the statute. The district court reasoned that although Idaho Code § 18-4006(2),
the statute defining involuntary manslaughter, does not expressly require the proof of proximate
cause, the plain meaning analysis of the term “produces” in the statute requires a finding by the
jury that the person convicted produced--or caused--the death.         The district court further
explained that because the jury was instructed as to causation, as it was implied in the term
“produces,” it is unclear why an additional jury instruction addressing proximate cause was



              Two, in the state of Idaho;
              Three, the defendant Michael Jared Thompson used a firearm with
       reckless disregard of the consequences and of the rights of others.
              Four, producing the death of [the deceased].
              If any of the above has not been proven beyond a reasonable doubt 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 10A:
               The defendant Michael Jared Thompson is charged in this case with
       involuntary manslaughter. Manslaughter is the unlawful killing of a human being
       without malice. In charging the defendant with involuntary manslaughter the
       state must prove beyond a reasonable doubt: One, that a death occurred, and;
       Two, the defendant unlawfully caused that death.
                                                3
necessary or would have changed the outcome.              Moreover, the district court found that
Thompson had failed to demonstrate that any prejudice would have resulted from trial counsel’s
failure to propose proximate cause or intervening, superseding cause jury instructions.
Thompson appeals from the district court’s summary dismissal of his petition for post-conviction
relief.
                                                  II.
                                     STANDARD OF REVIEW
          A petition for post-conviction relief initiates a proceeding that is civil in nature. Idaho
Code § 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

                                                   4
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.
       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).




                                                  5
                                               III.
                                           ANALYSIS
A.     Ineffective Assistance of Trial Counsel
       A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post-Conviction Procedure Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct.
App. 2009). 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); Self v. State, 145 Idaho 578,
580, 181 P.3d 504, 506 (Ct. App. 2007). 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); Knutsen v. State, 144 Idaho
433, 442, 163 P.3d 222, 231 (Ct. App. 2007). 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. Aragon, 114 Idaho at 761, 760 P.2d at 1177; Knutsen, 144 Idaho at
442, 163 P.3d at 231. 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. Gonzales v. State, 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).
       1.      Proximate cause
       Thompson asserts that proximate and intervening, superseding cause instructions were
required, and his trial counsel was therefore ineffective by failing to request them. On appeal,
the State has renewed its argument that proximate cause is simply not an element of
manslaughter in Idaho. 2 The State also argues that even if proximate cause is an element,

2
       The State’s argument can be best summarized in its own words:
       The relevant jury instruction, no. 10, was patterned on the statutory language (see
       Aug. R., p. 187), and so could not be erroneous. State v. Aragon, 107 Idaho 358,
       362, 690 P.2d 293, 297 (1984). Under the plain language of the statute, the only
       causation the jury was required to consider was whether Thompson’s reckless use
       of the firearm produced his victim’s death. Questions of proximate and
       intervening causes were not relevant to the jury’s determination.
              ....
              . . . At one time, a finding of proximate causation was necessary to sustain
       a conviction for vehicular manslaughter. . . . But Thompson was not charged with
       vehicular manslaughter; he was charged with involuntary manslaughter through
                                                6
Thompson failed to introduce evidence at trial that would have required the jury to consider
proximate cause and intervening, superseding causes, meaning it was not deficient to not request
proximate and intervening, superseding cause instructions. The State further asserts that any
deficiency was not prejudicial, relying on the district court’s conclusions that there was no
intervening, superseding cause and that “produces” implies causation, which includes proximate
cause.
         The relevant portions of the current statute are the operative language, as well as the
subsection defining how involuntary manslaughter can be committed:

                 Manslaughter is the unlawful killing of a human being including, but not
         limited to, a human embryo or fetus, without malice. It is of three (3) kinds:
                 (1) Voluntary . . . .
                 (2) Involuntary--in the perpetration of or attempt to perpetrate any
         unlawful act, other than those acts specified in section 18-4003(d), Idaho Code; or
         in the commission of a lawful act which might produce death, in an unlawful
         manner, or without due caution and circumspection; or in the operation of any
         firearm or deadly weapon in a reckless, careless or negligent manner which
         produces death.
                 (3) Vehicular . . . .
         This Court exercises free review over the application and construction of statutes. State
v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003). Where the language of a
statute is plain and unambiguous, this Court must give effect to the statute as written, without
engaging in statutory construction. State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219
(1999); State v. Escobar, 134 Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000). The language of
the statute is to be given its plain, obvious, and rational meaning. Burnight, 132 Idaho at 659,
978 P.2d at 219. If the language is clear and unambiguous, there is no occasion for the court to
resort to legislative history or rules of statutory interpretation. Escobar, 134 Idaho at 389, 3 P.3d



         the reckless operation of a firearm, and the proximate cause requirement for
         vehicular manslaughter has never been applied to cases of involuntary
         manslaughter committed through the reckless operation of a firearm.
                ....
                . . . Thompson was charged under the current statute with involuntary
         manslaughter through the reckless operation of a firearm. The only question of
         causation relevant to the jury’s determination was whether Thompson’s reckless
         operation of the firearm produced his victim’s death. The state was not required
         to prove proximate causation.


                                                 7
at 67. When this Court must engage in statutory construction because an ambiguity exists, it has
the duty to ascertain the legislative intent and give effect to that intent. State v. Beard, 135 Idaho
641, 646, 22 P.3d 116, 121 (Ct. App. 2001). To ascertain such intent, not only must the literal
words of the statute be examined, but also the context of those words, the public policy behind
the statute and its legislative history. Id. It is incumbent upon a court to give an ambiguous
statute an interpretation which will not render it a nullity. Id. Constructions of an ambiguous
statute that would lead to an absurd result are disfavored. State v. Doe, 140 Idaho 271, 275, 92
P.3d 521, 525 (2004).
       Although Idaho Code Section 18-4006(2), the statute defining involuntary manslaughter,
does not expressly require proof of proximate cause, the plain meaning of the term “produces” in
the statute indicates that the death was caused by the actions of the person convicted. See State
v. Lampien, 148 Idaho 367, 374, 223 P.3d 750, 757 (2009) (the phrase “as the result of” in Idaho
Code Section 19-5306(5)(a) indicates that the victim’s injuries must have been caused by the
commission of the crime). As stated in State v. Corbus, 150 Idaho 599, 602-03, 249 P.3d 398,
401-02 (2011):
              As articulated by this Court in Lampien, causation consists of actual cause
       and true proximate cause. Lampien, 148 Idaho at 374, 223 P.3d at 757. “Actual
       cause is the factual question of whether a particular event produced a particular
       consequence.” Id. (quoting Cramer, 146 Idaho at 875, 204 P.3d at 515). The
       “but for” test is used in circumstances where there is only one actual cause or
       where two or more possible causes were not acting concurrently. Id. On the
       other hand, true proximate cause deals with “whether it was reasonably
       foreseeable that such harm would flow from the negligent conduct.” Id. (quoting
       Cramer, 146 Idaho at 875, 204 P.3d at 515). In analyzing proximate cause, this
       Court must determine whether the injury and manner of occurrence are so highly
       unusual “that a reasonable person, making an inventory of the possibilities of
       harm which his conduct might produce, would not have reasonably expected the
       injury to occur.” Id. (quoting Cramer, 146 Idaho at 875, 204 P.3d at 515).
               An intervening, superseding cause is “an independent act or force that
       breaks the causal chain between the defendant’s culpable act and the victim’s
       injury.” Id. In general, an intervening, superseding cause replaces the
       defendant’s act as the proximate cause of the victim’s injury. Id. at 374-75, 223
       P.3d at 757-58. However, to relieve a defendant of criminal liability, an
       intervening cause must be an unforeseeable and extraordinary occurrence. Id. at
       375, 223 P.3d at 758. “The defendant remains criminally liable if either the
       possible consequence might reasonably have been contemplated or the defendant
       should have foreseen the possibility of harm of the kind that could result from his
       act.” Id.


                                                  8
Moreover, while no Idaho appellate case has expressly addressed the issue of proximate cause in
the involuntary manslaughter context and/or construed the term “produces,” most jurisdictions
that have addressed the issue have concluded that proximate cause is an implied element. See
United States v. Main, 113 F.3d 1046, 1048-50 (9th Cir. 1997) (explaining that though the
federal manslaughter statute does not explicitly mention proximate cause, proximate cause is an
element that is implicit in the common understanding of the crime); see also Dunville v. State,
123 N.E. 689, 689-90 (Ind. 1919) (explaining that though contributory negligence could not
serve as a defense to involuntary manslaughter, the victim’s actions may still be relevant to show
lack of proximate cause); Jackson v. State, 127 N.E. 870, 870 (Ohio 1920) (highlighting the
“illogical and absurd results” that would follow from a rule that did not require proximate cause
for involuntary manslaughter); cf. Ex parte Heigho, 18 Idaho 566, 574-77, 110 P. 1029, 1032
(1910) (implicitly addressing proximate cause as it related to Idaho’s manslaughter statute).
Thus, we hold that proximate cause is an element within the statute.
       2.      Deficient performance
       The State asserts that because the jury instruction was patterned on the language of
I.C. § 18-4006, it cannot be erroneous. Though jury instructions patterned after the language of a
statute normally are not error, that rule is not absolute. State v. Aragon, 107 Idaho 358, 362, 690
P.2d 293, 297 (1984). The Idaho Supreme Court has explained that jury instructions that deviate
from the explicit language of the statute may be required depending on the specific facts of the
case. See State v. Abdullah, 158 Idaho 386, 427-29, 348 P.3d 1, 42-44 (2015) (“Based on our
interpretation of Idaho’s arson statute, we recognize that in subsequent arson prosecutions an
instruction on causation may be necessary depending on the facts of the case.”); see also Main,
113 F.3d at 1050 (“We recognize that our holding [that there is an implied element of proximate
cause] necessarily implies a lacuna in the Ninth Circuit’s Model Criminal Jury Instructions
§ 8.24D (1992), which the district court followed.”). 3 While infrequent, instructions deviating
from the language of the statute may be required when implied elements are at issue due to the


3
         In United States v. Main, 113 F.3d 1046, 1048 (9th Cir. 1997), the district court had
refused to include proximate cause language in the manslaughter jury instructions, instead using
the following phrasing, “[The victim] was killed as a result of an act of the defendant.” The
Ninth Circuit reversed, acknowledging that the federal manslaughter statute does not explicitly
mention proximate cause, but explaining that proximate cause is an element that is implicit in the
common understanding of the crime. Id. at 1050; see 18 U.S.C. § 1112(a).
                                                9
specific facts of a case. Therefore, while it may be proper to simply instruct using the language
of the statute, where causation is at issue, as in this case, further instruction on actual and
proximate cause, as well as intervening, superseding cause, may not only be appropriate, but
required.
       Turning to the district court’s decision granting summary dismissal of this case, the
district court ruled that “Thompson provides no additional information in his petition showing
that he did not behave in a ‘reckless, careless or negligent manner’ by introducing a loaded gun
into an argument in a confined space.” This statement actually goes only so far as to address the
third element in the given instruction no. 10: “Three, the defendant Michael Jared Thompson
used a firearm with reckless disregard of the consequences and of the rights of others.” The
element at issue is the fourth element in the instruction: “Four, producing the death of [the
deceased].” In addition, the district court’s analysis in this regard goes beyond the proper
boundaries of summary dismissal. The court notes that “the story of what occurred after the
introduction of the firearm varies” and then simply focuses on the recklessness of Thompson to
conclude that the victim’s conduct was not an intervening, superseding cause, as the conduct was
neither unforeseeable nor extraordinary under the entirety of the circumstances. Thus, the
district court appears to have engaged in a factual analysis, inappropriate on summary dismissal,
to come to the legal conclusion that an instruction on intervening, superseding cause would not
be appropriate, as no conduct of the victim “broke the chain of proximate causation.” An
evidentiary hearing is necessary to resolve this issue.
       Additionally, the district court ruled that instructing the jury that Thompson’s conduct
must have “produced” the death of the victim is the same as providing definitional instructions
on causation and/or intervening, superseding cause. The court stated that the instructions given
required the jury to find that “the person convicted produced--or caused--the death,” which it
did. Thus, the court concluded that it was unclear why additional instruction would be necessary
or would change the outcome. First, as noted, jury instructions supplementary to the explicit
language of the statute may be required depending on the specific facts of the case. Abdullah,
158 Idaho at 427-29, 348 P.3d at 42-44. Second, the issue is, under the circumstances and the
nature of the defense, would jury instructions defining causation and intervening, superseding
cause have assisted the jury to the extent that failing to request them constitutes ineffective
assistance of counsel. See Butigan v. Yellow Cab Co., 320 P.2d 500, 505 (Cal. 1958) (“The rules

                                                 10
concerning negligence and proximate causation which must be explained to the jury are in
themselves complicated and difficult to understand.”). An evidentiary hearing is necessary to
address this issue.
       3.      Strategic and tactical decisions
       When evaluating an ineffective assistance of counsel claim, this Court does not second-
guess strategic and tactical decisions, and such decisions cannot serve as a basis for post-
conviction relief unless the decision is shown to have resulted from inadequate preparation,
ignorance of the relevant law, or other shortcomings capable of objective review. State v. Payne,
146 Idaho 548, 561, 199 P.3d 123, 136 (2008). Strategic decisions can include counsel’s choice
of witnesses, presentation of evidence, manner of cross-examination, and lack of objection to
testimony. Giles v. State, 125 Idaho 921, 924, 877 P.2d 365, 368 (1994). However, trial
counsel’s failure to request a jury instruction made necessary by the specific facts of the case and
intimately related to the defense’s theory of the case may not fit the mold of “strategic decision”
or “trial strategy.” See Wurdemann v. State, 161 Idaho 713, 722, 390 P.3d 439, 448 (2017)
(providing relevant factors courts should look to when determining whether a decision was
strategic). Whether or not trial counsel’s failure to request proximate cause and intervening,
superseding jury instructions was strategic is a question to be addressed at an evidentiary
hearing.
       4.      Prejudice
       Finally, the district court held that there was no evidence that such jury instructions
would have changed the outcome of the trial. First, the Strickland standard only requires a
“reasonable probability” that the result would be different. Second, Thompson moved the court
to take judicial notice of the records and transcripts of the underlying criminal trial. The court
did not reference this “evidence” in its order summarily dismissing Thompson’s petition, despite
the fact that it is relevant to the prejudice element. The district court, in its decision, cited
exclusively to Thompson’s verified petition for post-conviction relief, Thompson’s affidavit of
material facts in support of his verified petition for post-conviction relief, and the State’s motion.
Moreover, the State’s motion did not rely on facts outside of the affidavit of material facts or the
fact section of this Court’s opinion from Thompson’s direct appeal.
       Though it is possible for this Court to imply that a district court granted a party’s motion
for judicial notice without it officially stating that it did so, the facts in this case do not present

                                                  11
this approach as a viable option. Fortin v. State, 160 Idaho 437, 441 n.2, 374 P.3d 600, 604 n.2
(Ct. App. 2016) (“Although the district court did not directly address the state’s motion in its
order, the context of the district court’s ruling, coupled with its declaration in its order summarily
dismissing the petition that it took judicial notice of ‘the underlying files that were made a part of
the record in this case,’ implies that the district court granted the state’s motion for judicial
notice.”). Because we cannot imply that the motion was granted in this case, we remand to the
trial court for an evidentiary hearing at which Thompson can develop a factual record of the
underlying events and also trial counsel’s reason for not objecting.
       In sum, Thompson has made a prima facie case for ineffective assistance of counsel
sufficient to warrant an evidentiary hearing. Instructions on proximate cause and intervening,
superseding cause may be legally appropriate in an involuntary manslaughter case. However,
whether consideration of all of the facts proves ineffective assistance of counsel for failing to
request such instructions must be decided following an evidentiary hearing.
B.     Ineffective Assistance of Appellate Counsel
       Thompson invites us to address Mintun v. State, 144 Idaho 656, 662, 168 P.3d 40, 46 (Ct.
App. 2007), in which we held that we will not hear a post-conviction claim of ineffective
assistance of appellate counsel for failing to raise an issue of fundamental error, in light of
subsequent appellate decisions. Because we are reversing the summary dismissal of Thompson’s
petition for post-conviction relief due to the ineffective assistance of trial counsel, we need not
address this issue.
                                                 IV.
                                          CONCLUSION
       Thompson has made a prima facie showing that counsel performed deficiently by failing
to request a jury instruction that may be applicable due to the specific facts of this case and that
there exists a reasonable possibility that counsel’s deficient performance affected the outcome of
the trial. Accordingly, we conclude that Thompson is entitled to an evidentiary hearing. The
district court’s order of summary dismissal of Thompson’s petition for post-conviction relief is
reversed and the case remanded for an evidentiary hearing.
       Judge HUSKEY CONCURS.
       Judge GUTIERREZ CONCURS IN THE RESULT.



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