                IN THE SUPREME COURT OF THE STATE OF IDAHO

                                      Docket No. 47112


STATE OF IDAHO,                         )
                                        )
   Plaintiff-Respondent,                )
                                        )                   Boise, February 2020 Term
v.                                      )
                                        )                   Opinion Filed: June 10, 2020
WILLIAM TIMOTHY DIX,                    )
aka JAMAAL AL-DIN,                      )                   Melanie Gagnepain, Clerk
                                        )
   Defendant-Appellant.                 )
_______________________________________ )

       Appeal from the District Court of the Fourth Judicial District of the State of
       Idaho, Ada County. Richard D. Greenwood, District Judge.

       Dix’s convictions are reversed and the case is remanded with instructions to enter
       a judgment of acquittal on both counts.

       Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant.
       Jenevieve Swinford argued.

       Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. John
       McKinney argued.

       Rick Eichstaedt, amicus curiae brief for the Commercial Law Amicus Initiative.
                                      _____________________

BRODY, Justice.
       This case concerns the application of the Uniform Commercial Code (UCC) to the
ownership elements of grand theft and burglary. Over a period of several months, William Dix
bought several thousand dollars’ worth of goods—mainly power tools—from Grainger Supply
on credit. On the same days he bought the goods, he pawned them. Dix was charged with grand
theft and burglary, and pleaded not guilty to both counts. At trial, the State argued that Dix
committed theft by obtaining the goods on credit without intending to pay for them, and
committed burglary by receiving loans from the pawn shop in exchange for the goods based on
false representations that he owned them.

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       Following the close of the State’s case-in-chief, Dix moved for a judgment of acquittal
under Idaho Criminal Rule 29 on both charges. Dix argued that under State v. Bennett, 150 Idaho
278, 246 P.3d 387 (2010), he became the owner of the goods once he obtained possession of
them from Grainger, and as the owner, he could lawfully pawn them. The district court denied
Dix’s motion, and the jury subsequently returned guilty verdicts on both counts. After trial, Dix
renewed his Rule 29 motion on the burglary charge, and this motion was also denied. The district
court entered an order withholding judgment and placing Dix on probation for eight years. Dix
timely appealed, and the Court of Appeals affirmed. This Court granted Dix’s petition for
review. For the reasons stated below, we reverse Dix’s convictions and remand the case to the
district court with instructions to enter a judgment of acquittal on both counts.
                 I.      FACTUAL AND PROCEDURAL BACKGROUND
       Dix was charged with (1) grand theft under Idaho Code sections 18-2403(1), -2407(1)(b),
and -2409; and (2) burglary under Idaho Code section 18-1401. The State alleged that Dix
committed theft when, between November 2, 2015 and December 1, 2016, he used a line of
credit to acquire goods from Grainger, an industrial supply company, without intending to pay
for them. The State further alleged that Dix committed burglary when, between November 2,
2015, and November 4, 2016, he entered Vista Pawn with the intention to commit theft by
pawning goods stolen from Grainger. (The date range for the burglary charge was subsequently
amended.) Dix pleaded not guilty to both counts.
       A two-day jury trial was held on June 14 and 15, 2017. At trial, a Grainger employee
testified that Dix obtained the goods from Grainger using an open line of credit he had
established on behalf of two businesses: Jamaal Al-Din Hoops, Inc., and BoiseLibrarian.com.
(The State’s attorney noted that the State did not believe these were legitimate businesses, but
stated that was irrelevant to the prosecution’s case.) The Grainger employee added that in the fall
of the previous year, a police officer asked him to provide invoices showing all the goods that
Dix obtained from Grainger. These invoices were admitted, as well as several photographs of
shipping labels identified as Grainger’s. Dix ordered and picked up goods—mainly power
tools—on nine occasions from November 2015 to November 2016. The total value of the goods
exceeded $1,000. The Grainger employee was not aware of any payments Dix had made toward
these goods.


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       A Vista Pawn employee testified that in the fall or winter of 2016, Dix brought in tools
that were all new and still in the box. Vista Pawn gave him loans for those tools. For each pawn
transaction, Vista Pawn requires that the customer sign and fingerprint a pawn slip indicating
that the item the customer is selling or getting a loan for is the customer’s property. Because so
many of the tools were brand new in the box, and some of the boxes had never been opened
before, he “kind of got a weird taste in [his] mouth about it.” He reported his concerns to the
Boise Police Department and turned over the goods that Dix had brought in. The Vista Pawn
employee identified four pawn slips as Vista Pawn’s business records of Dix’s transactions, and
these pawn slips were admitted. Together with the Grainger invoices and testimony by the
Grainger and Vista Pawn employees, these pawn slips showed that Dix pawned these goods on
the same day that he picked them up from Grainger.
       The investigating police officer testified that he previously had contact with Dix in the
spring of 2016, when an investigation revealed that Dix had bought thirteen cell phones and
tablets from a cell phone store under a business license and then pawned them. No criminal
charges resulted from that investigation, but he told Dix that his actions could lead to criminal
charges if they continued. In October of 2016, the officer was contacted by Vista Pawn, who was
concerned that the goods brought in by Dix might have been stolen. The officer was able to
determine that these goods had been purchased by Dix at Grainger, and that Dix had also pawned
some of the goods at First National Pawn. However, First National Pawn had already sold the
tools by the time of the investigation. Pawn slips from First National Pawn were admitted. The
evidence regarding Dix’s transactions with the cell phone store and First National Pawn,
however, were admitted only for limited purposes under Idaho Rule of Evidence 404(b).
       At the close of the State’s case-in-chief, Dix moved for a judgment of acquittal on both
charges under Idaho Criminal Rule 29. The district court denied this motion.
       The district court also rejected two of Dix’s proposed jury instructions. The first proposed
jury instruction cited Idaho Code section 28-2-403 and described the power of a fraudulent
purchaser to transfer good title. The second proposed jury instruction cited Idaho Code sections
28-2-102, 28-2-106, 28-2-401, and 28-9-201, as well as Bennett, and described the relative
possessory rights of the buyer and seller in a sales contract.
       The jury returned a verdict of guilty on both counts. Dix then renewed his Rule 29
motion as to the burglary charge alone. This motion was also denied.
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       Following a sentencing hearing, the district court issued an order withholding judgment
and placing Dix on probation for eight years. Following a motion by the State and stipulation by
the parties, the district court entered an order and judgment requiring Dix to pay $4,994.82 in
restitution: $3,494.82 to Grainger and $1,500.00 to Vista Pawn.
       Dix filed a timely notice of appeal from the order withholding judgment and order of
probation, and subsequently filed an amended notice of appeal. The Court of Appeals affirmed.
State v. Dix, No. 45364, 2019 WL 946821, at *4 (Idaho Ct. App. Feb. 27, 2019). This Court
granted Dix’s petition for review.
                               II.    STANDARD OF REVIEW
       When reviewing a case on petition for review, this Court gives due consideration to the
decision reached by the Court of Appeals but directly reviews the decision of the trial court.
State v. Gonzales, 165 Idaho 667, 671, 450 P.3d 315, 319 (2019).
       After the close of the prosecution’s evidence or after both sides have rested, the trial court
must enter a judgment of acquittal for any offense for which the evidence is insufficient to
sustain a conviction. I.C.R. 29(a). When reviewing the denial of a motion for judgment of
acquittal, the appellate court must independently consider the evidence in the record and
determine whether a reasonable mind could conclude that the defendant’s guilt was proven
beyond a reasonable doubt. State v. Clark, 161 Idaho 372, 374, 386 P.3d 895, 897 (2016). The
relevant inquiry is not whether the appellate court would find the defendant to be guilty beyond a
reasonable doubt, but whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Id.
       This Court freely reviews questions of statutory interpretation. State v. Keeton, 165 Idaho
663, 665, 450 P.3d 311, 313 (2019).
                                       III.    ANALYSIS
       Dix’s conduct and the legal challenges surrounding it are nothing new. Courts have been
wrestling with these kinds of issues since at least the 1700s. See Annotation, Appropriation of
Property After Obtaining Possession by Fraud as Larceny, 26 A.L.R. 381, at § 1 (originally
published in 1923) (collecting cases dating back to the 1700s); Annotation, Purchase of Property
on Credit Without Intending to Pay for It as Larceny, 35 A.L.R. 1336 (originally published in
1925). For the reasons set out below, we reverse Dix’s convictions.
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    A. The district court erred in denying Dix’s motion for judgment of acquittal for grand
       theft.
         Dix is correct. His grand theft conviction cannot be sustained because the State did not
prove that Grainger had a superior possessory interest to the goods at the time of Dix’s alleged
theft.
         According to the State, Dix committed theft at the moment he gained possession of the
goods. In Idaho, in order to be guilty of the crime of theft, the defendant must take property from
its “owner”: “A person steals property and commits theft when, with intent to deprive another of
property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains
or withholds such property from an owner thereof.” I.C. § 18-2403(1) (emphasis added). Thus,
Dix’s conviction can only be sustained if Grainger was the owner of the goods when Dix
acquired them. See Bennett, 150 Idaho at 279, 246 P.3d at 388 (“For Bennett to be guilty, LeFave
must have been the ‘owner’ of the trailer.”)
         “Owner,” for the purposes of the theft statute, is defined as “any person who has a right
to possession thereof superior to that of the taker, obtainer or withholder.” I.C. § 18-2402(6).
Therefore, in order for Grainger to have been the owner of the goods at the time of Dix’s alleged
theft, it must have had possessory rights in the goods which were superior to Dix’s. See Bennett,
150 Idaho at 280, 246 P.3d at 389 (“[T]he State had the burden of proving that LeFave had
possessory rights in the trailer which were superior to any possessory rights that Bennett had at
the time of the alleged wrongful taking.”)
         In Bennett, we held that because the theft statute’s definition of “owner” depends on the
possessory rights of the persons involved, and because the criminal code does not provide
guidance on possessory rights, we must use Article 2 of the UCC to determine who had the
superior possessory right when an alleged theft involved a sale of goods. Id. That case involved a
charge of theft related to the sale of a travel trailer. Id. at 278, 246 P.3d at 387. Bennett bought a
trailer from LeFave, who agreed to let Bennett take the trailer for a down payment and pay the
remainder of the purchase price later. Id. LeFave and Bennett further agreed that LeFave would
transfer title to Bennett once Bennett finished paying for the trailer. Id. Bennett made at least one
payment toward the purchase price but then moved the trailer out of state. Id. at 279, 246 P.3d at
388. Bennett was charged with and found guilty of grand theft under Idaho Code section 18-
2403. Id.

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       This Court vacated Bennett’s conviction on the grounds that the State failed to prove
beyond a reasonable doubt that LeFave was the “owner” of the trailer. Id. at 280, 246 P.3d at
389. We explained that LeFave parted with possession of the trailer by delivering it to Bennett
and did not regain superior possessory rights upon Bennett’s breach of contract for two reasons.
Id. First, under the UCC, an unpaid seller of goods can sue for the unpaid price pursuant to Idaho
Code section 28-2-709(1)(a), but cannot simply retake the goods. Id. Second, LeFave’s purported
retention of title was ineffective. Id. The UCC limits the ability to reserve title in goods sold:
“Any retention or reservation by the seller of the title (property) in goods shipped or delivered to
the buyer is limited in effect to a reservation of a security interest.” I.C. § 28-2-401(1). To create
an enforceable security interest, sellers must satisfy the requirements in Idaho Code section 28-9-
203(b)—the only exception is for goods that the buyer has not yet obtained possession of. Id.
Because LeFave had not satisfied the requirements in Idaho Code section 28-9-203(b), he had no
enforceable security interest in the trailer and thus no superior possessory right to the trailer at
the time of Bennett’s alleged theft. Id. Therefore, we concluded, LeFave was not the “owner” of
the trailer, and Bennett’s conviction could not stand. Id.
       Bennett’s reasoning applies with equal force in this case. Dix’s alleged theft involved a
sale of goods, so the UCC applies. I.C. § 28-2-102; Bennett, 150 Idaho at 280, 246 P.3d at 389.
Like Bennett, Dix gained title to the goods once he took possession of them. Under the UCC,
unless the parties agree otherwise, “title passes to the buyer at the time and place at which the
seller completes his performance with reference to the physical delivery of the goods.” I.C. § 28-
2-401(2). One way in which goods are delivered is by making them available for the buyer to
pick up at the seller’s place of business. 2 Hawkland UCC Series § 2-401:3; I.C. § 28-2-503(1)
(“Tender of delivery requires that the seller put and hold conforming goods at the buyer’s
disposition and give the buyer any notification reasonably necessary to enable him to take
delivery.”). Thus, Dix acquired title to the goods when Grainger made them available for pick-
up.
       That Dix also acquired a superior possessory right to the goods at the moment of delivery
is even clearer here than it was in Bennett. Here, Grainger did not even attempt to create a
security interest in the goods it sold to Dix, so it cannot claim a superior possessory interest in
the goods under Idaho Code section 28-2-401(1). As a result, although Grainger could sue Dix
for the unpaid price of the goods once that became due, it did not have a superior possessory
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right to the goods at the moment of delivery or at any point thereafter. See Bennett, 150 Idaho at
280, 246 P.3d at 389. Therefore, just as it was in Bennett, the evidence presented by the State is
insufficient to sustain Dix’s conviction under Idaho Code section 18-2403.
        This result is not an anomaly. It is in line with previous decisions of this Court involving
the same issues. For example, in State v. Jesser, the Court decided that title to the goods had not
passed at the time of the alleged theft. State v. Jesser, 95 Idaho 43, 52, 501 P.2d 727, 736 (1972).
The defendants had entered into a contract to buy grain, agreeing to pick up each load at the
seller’s granary, transport it to another location for weighing, and then pay for it. Id. at 46, 501
P.2d at 730. After the seller realized the defendants were secretly transferring some grain to
another truck before weighing the remainder, the defendants were each charged with “petit
larceny” under Title 18, Chapter 46 of the Idaho Code (now repealed). Id. at 47, 501 P.2d at 731.
The Court noted that under the UCC, title passes upon the seller’s delivery of the goods unless
the parties agree otherwise. Id. at 51, 501 P.2d at 735. The general rule did not apply in this case
though, the Court reasoned, because the jury could determine accurate weighing of the grain was
part of the sales contract. Therefore, the defendants had nullified the contract by making accurate
weighing impossible. Id. at 52, 501 P.2d at 736. With no enforceable contract in place, title did
not pass to the defendants at the point of delivery. Id.
        The Court’s reasoning in Jesser leads to the opposite result here. For the reasons stated
above, delivery was complete when Grainger made the goods available to Dix for pick-up. There
were no unfulfilled conditions in Grainger’s sales contract with Dix that nullified their
agreement. Thus, the general rule applies: title passed to Dix upon delivery.
    B. The district court erred in denying Dix’s motion for judgment of acquittal for
       burglary.
        Dix’s conviction for burglary must also be reversed. We agree with the reasoning in the
amicus curiae brief filed by Commercial Law Amicus Initiative: Dix did not commit burglary by
pawning the goods because the pawn shop received good title to the goods.
        Dix had good title to the goods at the time he pawned them. The State alleged that Dix
obtained the goods fraudulently by purchasing them on credit without intending to pay.
Assuming that is true, Dix’s title to the goods was voidable by Grainger. 17A Am. Jur. 2d
Contracts § 210. But voidable title is good title unless and until the seller elects to reject the sales
contract. See Voidable, Black’s Law Dictionary (11th ed. 2019) (defining “voidable” as “[v]alid

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until annulled”) (emphasis added). The authorities cited by the State are not to the contrary. The
State cites the following example in the third edition of Lawrence’s Anderson on the Uniform
Commercial Code:
        Buyer gave a check to Seller in payment for the purchase of goods. Seller gave
        Buyer possession of the goods even though the check had not yet cleared. Upon
        presentment to the payor bank, Buyer’s check was returned for insufficient funds.
        By the time that the check was returned to Seller, Buyer had already sold the
        goods to Purchaser. Even though Buyer has no right to retain the goods as against
        Seller, Buyer had the power to transfer a good title to the goods to Purchaser
        under U.C.C. § 2-403(1)(b).
3A Anderson U.C.C. § 2-403:45 (3d. ed.) (emphasis in State’s response brief). However, the
sentence that precedes this example makes clear that the buyer has no such right if the seller
voids the sales contract, because the buyer’s title is voidable, not void: “U.C.C. § 2-403(1)
provides a rule under which a person who has voidable title to goods can transfer a good title to
the goods to a good faith purchaser for value.” Id. (emphasis added). Because Grainger took no
action to void its sales contract with Dix, Dix had good title to the goods at the time he pawned
them.
        The State also cites the following excerpt from a footnote from a Wyoming case: “When,
because of his fraud, the accused obtains voidable title to property, he may sell them to a good-
faith purchaser for value; he just does not have superior title to that of the true owner.” Bohling
v. State, 2017 WY 7, ¶ 29 n.8, 388 P.3d 502, 509 n.8 (Wyo. 2017) (emphasis in State’s response
brief). However, this statement is dicta. Bohling involved a charge of obtaining property by false
pretenses arising from a county official’s use of a county credit card to purchase camera
equipment for personal use. Id. ¶ 11, 388 P.3d at 505. Because the county was the buyer—not
Bohling—Bohling never acquired even voidable title. See Id. ¶¶ 38-44, 388 P.3d at 512-13.
Moreover, nothing about this excerpt suggests that the seller would be relieved from having to
take some action to divest the purchaser of voidable title or that the seller would have a superior
possessory right to the property. Additionally, accepting the State’s argument that Dix’s
fraudulent intent rendered his purchase of the goods void would promote lawlessness in the sense
that it would allow sellers to physically retake goods from buyers who fail to pay.
        Because Dix had voidable title to the goods, he was able to transfer good title to Vista
Pawn. Under the UCC, “[a] person with voidable title has power to transfer a good title to a good
faith purchaser for value.” I.C. § 28-2-403(1). This rule applies even when “[t]he delivery was
                                                8
procured through fraud punishable as larcenous under the criminal law.” Id. We applied this
good faith purchaser rule in W. Idaho Prod. Credit Ass’n v. Simplot Feed Lots, Inc., 106 Idaho
260, 678 P.2d 52 (1984), a case involving farmers who sold barley to a middleman, who in turn
sold the barley to Simplot and never paid the farmers. We held that the farmers’ conversion
claim again against Simplot could not succeed because, under Idaho Code section 28-2-403(1),
title had passed to Simplot as a good faith purchaser for value. Id. at 262–63, 678 P.2d at 54–55.
       The good faith purchaser rule serves important policy interests. It promotes fairness by
placing the risk of loss on the party in the better position to avoid it: the seller, who could have
demanded payment on delivery. Additionally, placing the risk on good faith purchasers would
impede commerce by requiring purchasers to conduct substantial due diligence in order to assure
themselves, to the extent possible, that the original purchaser did not defraud the seller. Other
courts have recognized this rule and its rationales. See, e.g., Tempur-Pedic Int’l, Inc. v. Waste to
Charity, Inc., 483 F. Supp. 2d 766, 774 (W.D. Ark. 2007) (explaining that the purpose of the
good faith purchaser rule is to “promote finality in commercial transactions and thus encourage
purchases and to foster commerce”).
       In this case, there was no suggestion that Vista Pawn was not a good faith purchaser for
value. Even the State concedes that “[a]s between Grainger and Vista Pawn, Vista Pawn is
protected as a ‘good faith purchaser of goods.’” Therefore, Dix transferred good title to Vista
Pawn. (To be precise, he transferred the lesser property interest of “rights to the goods in pawn.”
When he later failed to redeem the goods, Vista Pawn became the full owner, or title holder,
pursuant to its agreement with Dix.)
       Because Vista Pawn received what it bargained for, Dix did not commit burglary by
pawning the goods. However, for the first time on appeal, and contrary to its statements to the
trial court, the State argues that Grainger could be the victim of Dix’s burglary even if Vista
Pawn was not. Even if this argument was preserved, the State does not explain why Grainger
would be entitled to the proceeds of the pawn transaction. As noted above, Grainger could sue
Dix for the unpaid purchase price of the goods once that became due, but that does not mean it
would be entitled to proceeds from the pawn transaction. Therefore, whether the victim of Dix’s
alleged burglary is considered to be Vista Pawn or Grainger, Dix’s burglary conviction cannot be
sustained.


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                                     IV.    CONCLUSION
       We reverse Dix’s convictions and remand the case to the district court with instructions
to enter a judgment of acquittal on both counts.


       Chief Justice BURDICK, and Justices BEVAN, STEGNER, and MOELLER CONCUR.




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