                   IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                           Docket No. 41417

STATE OF IDAHO,                                     )     2014 Unpublished Opinion No. 764
                                                    )
           Plaintiff-Respondent,                    )     Filed: October 15, 2014
                                                    )
v.                                                  )     Stephen W. Kenyon, Clerk
                                                    )
TYLER ANTHONY HOWELL,                               )     THIS IS AN UNPUBLISHED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, Ada
           County. Hon. Michael R. McLaughlin, District Judge. Hon. Theresa Gardunia,
           Magistrate.

           Decision of the district court on intermediate appeal affirming judgment of
           conviction for carrying a concealed weapon into a sterile area of an
           airport, affirmed.

           Alan E. Trimming, Ada County Public Defender; Heidi M. Johnson, Deputy
           Public Defender, Boise, for appellant. Heidi M. Johnson argued.

           Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
           Attorney General, Boise, for respondent. Nicole L. Schafer argued.
                     ________________________________________________
KIDWELL, Judge Pro Tem
           Tyler Anthony Howell appeals from the district court’s decision on intermediate appeal
affirming his judgment of conviction for carrying a concealed weapon into a sterile area of an
airport.     Specifically, he contends the magistrate erred by admitting hearsay testimony, by
denying his motion for a judgment of acquittal, and that there was insufficient evidence to prove
that he had the requisite knowledge when he brought the weapon into a sterile area. For the
reasons set forth below, we affirm.
                                                   I.
                                     FACTS AND PROCEDURE
           Howell, an airline employee at the Boise Airport; his mother; and his wife were
attempting to fly standby to Minneapolis. No seats were available on the first two flights of the



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day and because there was an approximately four-hour break before the next flight, Howell and
his family chose to go home in the interim. They decided to take only one vehicle and stopped
by Howell’s motorcycle in the airport parking lot to transfer its contents, including a gun, into his
backpack.
        Several hours later, the family returned to the airport and began the process of going
through security. Howell placed his backpack on the conveyer belt, walked through the scanner,
and waited for the bag to come through.       He testified that when the process took longer than
normal, he immediately remembered that he had forgotten to remove the gun from his backpack
and leave it at home as he had intended. Transportation Security Administration (TSA) officer
James Trotter was operating the x-ray machine and testified that when he saw what appeared to
be a semi-automatic handgun in a backpack, he called his supervisor, Johnny Valero. Supervisor
Valero requested assistance from Boise Police Department Officer Michael Lock and then asked
the owner of the backpack to identify himself. Howell indicated the bag was his and when asked
by Supervisor Valero if there was anything “sharp, dangerous or fragile” in the bag that the
officer should be aware of, Howell said no. After Officer Lock and Supervisor Valero confirmed
there was a loaded gun in the backpack, Howell told them he had transferred the gun from his
motorcycle to his backpack earlier in the day, forgotten to remove it before returning to the
airport, and had not remembered it was in the backpack until he was asked by Supervisor Valero
about it.
        Howell was charged with carrying a concealed weapon into a sterile area of the airport
pursuant to Idaho Code § 18-7503(1), which provides, in relevant part:
        [N]or shall any person enter or attempt to enter any sterile area of an airport,
        which is a holder of a certificate issued by the federal government or the state of
        Idaho, while knowingly carrying on or about his person, or in a bag, case, pouch
        or other container, a deadly or dangerous weapon, either concealed or
        unconcealed.

The case proceeded to a jury trial. At the close of the State’s evidence, Howell moved for a
judgment of acquittal pursuant to Idaho Criminal Rule 29, arguing the State had not presented
sufficient evidence that the Boise Airport held a federal certificate. The magistrate court denied
the motion on the basis that several witnesses testified that the airport was federally certified.
The jury found Howell guilty as charged.         Howell renewed his motion for a judgment of




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acquittal, which the magistrate again denied. Howell appealed to the district court, which
affirmed his judgment of conviction. Howell now appeals to this Court.
                                                  II.
                                               ANALYSIS
       Howell contends the district court erred by affirming the magistrate’s admission of
certain testimony over Howell’s objection that it was inadmissible hearsay, by affirming the
magistrate’s denial of Howell’s renewed Rule 29 motion for judgment of acquittal, and by
determining there was sufficient evidence to support Howell’s conviction for attempting to bring
a weapon into a sterile area of the airport.
       When reviewing the decision of a district court sitting in its appellate capacity, our
standard of review is the same as expressed by the Idaho Supreme Court:
       The Supreme Court reviews the trial court (magistrate) record to determine
       whether there is substantial and competent evidence to support the magistrate’s
       findings of fact and whether the magistrate’s conclusions of law follow from
       those findings. If those findings are so supported and the conclusions follow
       therefrom and if the district court affirmed the magistrate’s decision, we affirm
       the district court’s decision as a matter of procedure.

Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.3d 214, 217-18 (2013) (quoting Bailey v. Bailey,
153 Idaho 526, 529, 284 P.3d 970, 973 (2012)). Thus, the appellate courts do not review the
decision of the magistrate court. Bailey, 153 Idaho at 529, 284 P.3d at 973. Rather, we are
procedurally bound to affirm or reverse the decisions of the district court. State v. Korn, 148
Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1 (2009).
A.     Hearsay
       Howell contends the district court erred by affirming the magistrate’s admission of
Supervisor Valero’s alleged hearsay statements into evidence at trial over Howell’s objection.
Specifically, he contends the magistrate erred by allowing Supervisor Valero to testify that the
Boise Airport was federally certified.
       The trial court has broad discretion in determining the admissibility of testimonial
evidence. State v. Smith, 117 Idaho 225, 232, 786 P.2d 1127, 1134 (1990). A decision to admit
or deny such evidence will not be disturbed on appeal absent a clear showing of abuse of that
discretion. Id. A judgment will not be reversed for an error in an evidentiary ruling unless a
substantial right of the party is affected. Idaho Rule of Evidence 103. Therefore, in a criminal



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case, error in the admission or exclusion of evidence will not result in a reversal if the error was
harmless beyond a reasonable doubt. State v. Gomez, 126 Idaho 700, 705, 889 P.2d 729, 734
(Ct. App. 1994); State v. Medrano, 123 Idaho 114, 120, 844 P.2d 1364, 1370 (Ct. App. 1992).
       An element of section 18-7503(1) is that a defendant entered or attempted to enter a
sterile area of an airport “which is a holder of a certificate issued by the federal government or
the state of Idaho.” The State elicited testimony regarding this element from Supervisor Valero,
asking him whether he had “ever seen a federal certification for the Boise Airport” and whether
Supervisor Valero knew “if it’s a federally certified building.” Defense counsel objected, citing
“foundation, hearsay and best evidence.”              The magistrate overruled the objection as
“[p]remature.” When asked again whether he knew if the airport was a federally certified
facility, Supervisor Valero testified, “As far as I’m concerned--that I know, yes.” When asked if
he had ever seen a federal certification, Supervisor Valero responded, “I have not.” On appeal to
the district court and now to this Court, Howell contends these statements constituted
inadmissible hearsay and the magistrate erred by admitting them.
       The district court determined that Supervisor Valero’s statements were not hearsay
because they were merely his “belief” that the airport was federally certified. Howell contests
this characterization on appeal. We need not decide the issue however, because, even assuming
the testimony was erroneously admitted, any error was harmless. Substantially similar evidence
regarding the airport’s federal certification was also admitted, without objection, through the
testimony of Officer Lock who, when asked whether he knew if the Boise Airport was federally
certified, responded, “Yeah, it’s a category--I believe it’s a category three. I can’t recall. I think
that’s what it is.” Thus, had Supervisor Valero’s allegedly improper testimony been excluded,
the jury still would have been presented with evidence that the airport was federally certified.
Given this, any error in admitting Supervisor Valero’s statements was harmless beyond a
reasonable doubt.
B.     Judgment of Acquittal
       Howell contends the district court erred by affirming the magistrate’s denial of his
renewed Rule 29 motion for judgment of acquittal, based on his assertion that the State failed to
present evidence that the airport was certified as required by the statute.          Specifically, he
contends there was no admissible evidence presented as to this fact.




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       On review of the denial of a motion for judgment of acquittal, we determine whether
there is substantial evidence to support the challenged conviction. State v. Hoyle, 140 Idaho 679,
683-84, 99 P.3d 1069, 1073-74 (2004); State v. Merwin, 131 Idaho 642, 644, 962 P.2d 1026,
1028 (1998); State v. Nichols, 156 Idaho 365, 369, 326 P.3d 1015, 1019 (Ct. App. 2014).
Substantial evidence to support the challenged conviction is present when a reasonable mind
could conclude that the defendant’s guilt of the offense was proven beyond a reasonable doubt
by such material evidence. Hoyle, 140 Idaho at 684, 99 P.3d at 1074; State v. Kuzmichev, 132
Idaho 536, 545, 976 P.2d 462, 471 (1999); Nichols, 156 Idaho at 369-70, 326 P.3d at 1019-20.
Where there is competent although conflicting evidence to sustain the verdict, this Court cannot
reweigh that evidence or disturb the verdict. Hoyle, 140 Idaho at 684, 99 P.3d at 1074; Merwin,
131 Idaho at 644-45, 962 P.2d at 1028-29; Nichols, 156 Idaho at 370, 326 P.3d at 1020. In
reviewing a motion for judgment of acquittal, all reasonable inferences on appeal are taken in
favor of the prosecution. Hoyle, 140 Idaho at 684, 99 P.3d at 1074; Kuzmichev, 132 Idaho at
545, 976 P.2d at 471; Nichols, 156 Idaho at 370, 326 P.3d at 1020.
       Both below, and now on appeal, Howell contends the State failed to prove the Boise
Airport has the requisite certification because Officer Lock did not specifically testify that the
airport was certified and because the State did not introduce into evidence the actual federal
certificate in contravention of the best evidence rule. In denying Howell’s Rule 29 motion, the
magistrate determined that the best evidence rule was not applicable and that Officer Lock’s
relevant, uncontroverted testimony, in combination with testimony from Officer Trotter and
Supervisor Valero that they were employed by federal agencies, was substantial evidence that the
airport was federally certified. The district court affirmed the denial of the motion, pointing to
both Officer Lock’s and Supervisor Valero’s testimony that the airport was federally certified. 1
       As to the substance of Officer Lock’s testimony regarding the federal certification of the
Boise Airport, Howell’s contention that it was not a definitive answer as to whether the airport
was federally certified, but only a statement regarding whether Officer Lock knew if it was or
not, is not tenable. As described above, the question posed to Officer Lock was whether he knew
if the Boise Airport was federally certified and his response was, “Yeah, it’s a category--I
believe it’s a category three. I can’t recall. I think that’s what it is.” Logically, this answer not

1
       The district court did not address the magistrate’s determination that the best evidence
rule was inapplicable.

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only conveyed that Officer Lock knew whether the airport was federally certified, but the
substance of that knowledge (that it was certified).
        We also reject Howell’s contention that the best evidence rule required that the State
introduce the actual federal certification document. 2    The rule, codified at I.C. § 9-411 and
essentially reproduced at Idaho Rule of Evidence 1002, states a preference in favor of original
written instruments--as opposed to copies, testimony, or other secondary sources of
information--to prove the terms of a writing. State v. Rosencrantz, 110 Idaho 124, 130, 714 P.2d
93, 99 (Ct. App. 1986). The rule is not applicable to evidence that states a fact about a writing,
as this does not raise the danger of mistransmission because it is offered to prove an issue other
than the exact terms of the document’s content. 2 KENNETH S. BROUN ET AL., MCCORMICK ON
EVIDENCE § 234 at 92 (6th ed. 2006). For example, the best evidence rule has no application
where the witness is not testifying as to the contents of a writing, but is merely testifying that a
writing has been made. Fish v. Fleishman, 87 Idaho 126, 130, 391 P.2d 344, 346 (1964); see
also United States v. Sliker, 751 F.2d 477, 484-85 (2nd Cir. 1984) (holding that a witness’s
testimony that bank deposits are insured by the FDIC was sufficient and admission of the
original insurance policy is not required).
        Here, Officer Lock’s testimony was not offered to prove the contents of a writing, as the
actual terms of the certification are not relevant here. Rather, his testimony was offered to prove
a fact about the certification, which was that it exists at all. Accordingly, the best evidence rule
is inapplicable in this circumstance.
        Given that Officer Lock’s testimony that the airport was federally certified was properly
admitted, there was substantial evidence at trial whereby a jury could have reasonably concluded
that the airport held the requisite certification. The district court did not err by affirming the
magistrate’s denial of Howell’s motion for a judgment of acquittal.
C.      Sufficiency of the Evidence
        Howell contends there was insufficient evidence presented at trial to sustain his
conviction. Specifically, he contends there was insufficient evidence upon which a reasonable
trier of fact could have found that he knowingly attempted to carry a weapon into a sterile area of
the airport.

2
       We note that this assumes federal certification is necessarily memorialized by and/or
granted by a document, a fact not definitively established in the record.

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       Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt
will not be overturned on appeal where there is substantial evidence upon which a reasonable
trier of fact could have found that the prosecution sustained its burden of proving the essential
elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957
P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct.
App. 1991). We will not substitute our view for that of the trier of fact as to the credibility of the
witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn
from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683,
684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light
most favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson,
121 Idaho at 104, 822 P.2d at 1001.
       On appeal, Howell points to evidence that he contends indicates he did not have the
requisite knowledge: he “stepped forward immediately to claim the bag as his” when Supervisor
Valero asked whose it was and he complied with all subsequent questions and commands; his
testimony that after his attempt to fly out earlier in the day, he transferred the contents of his
motorcycle parked at the airport into a backpack and then forgot to take the weapon out of his
backpack before returning to the airport; and Officer Lock’s testimony that if Howell was
purposely attempting to bring a weapon into the airport, he could have avoided security and gone
through the employee entrance. The district court rejected Howell’s contention:
                The Court finds that sufficient evidence was presented with which the jury
       could reasonably have found that Mr. Howell “knowingly” violated the statute.
       Mr. Howell admitted that he took the handgun from where it was stored on his
       motorcycle and put it in his backpack, which he then took into the airport, where
       it was discovered by airport security officers, in a “sterile area.”
                Assuming that Mr. Howell’s assertion that he “forgot” about the handgun
       in his backpack is a valid defense to the charge, the jury reasonably could have
       found that his contention was not credible, given the proximity in time of his
       placement of the gun in his backpack and his return trip to the airport, not to
       mention the significance of having a gun at an airport, which Mr. Howell
       acknowledged, he was well aware was not permissible. The jury also could have
       relied on Supervisor Valero’s statement that Mr. Howell did not tell him that there
       was anything dangerous in his pack, when [Supervisor Valero] initially
       questioned him about its contents, contradicting Mr. Howell’s assertion that he
       first realized that he had forgotten to remove the gun from his backpack, when he
       noticed TSA examining his bag for a lengthier period of time.

(Footnote omitted.)

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        It is well settled that criminal intent can be inferred from the commission of acts and the
surrounding circumstances. State v. Booton, 85 Idaho 51, 56, 375 P.2d 536, 539 (1962); State v.
Beebe, 145 Idaho 570, 573, 181 P.3d 496, 499 (Ct. App. 2007). We agree with the district
court’s reasoning and ultimate determination that from the evidence presented at trial, including
Howell’s admission to having placed the gun in the backpack only a few hours prior and his
failure to tell Supervisor Valero the gun was there when initially questioned as to the contents of
the backpack, the jury could have reasonably inferred that Howell possessed the requisite
knowledge in attempting to bring the gun into a sterile area. Although Howell offers an alternate
explanation for his act (that he simply forgot the gun was in his backpack), as the district court
noted, even assuming this explanation would negate the requisite knowledge, the jury was free to
reject it in favor of an alternate reasonable explanation. Because the jury’s verdict is supported
by substantial evidence, it will not be set aside; the district court did not err by rejecting this
argument on intermediate appeal.
                                                 III.
                                          CONCLUSION
        Even assuming Supervisor Valero’s testimony that the Boise Airport was federally
certified was inadmissible hearsay, any error in its admission was harmless because Officer Lock
testified, without objection, to the same fact. Additionally, there was sufficient admissible
evidence presented at trial that the airport held the requisite certification and so the district court
did not err by affirming the magistrate’s denial of Howell’s renewed motion for a judgment of
acquittal.   Finally, there was sufficient evidence to prove that Howell had the requisite
knowledge when he brought the weapon into a sterile area. The district court’s decision on
intermediate appeal affirming Howell’s conviction for carrying a concealed weapon into a sterile
area of an airport is affirmed.
        Judge LANSING and Judge MELANSON, CONCUR.




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