                 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 46601

STATE OF IDAHO,                                 )
                                                )    Filed: February 10, 2020
          Plaintiff-Respondent,                 )
                                                )    Karel A. Lehrman, Clerk
v.                                              )
                                                )    THIS IS AN UNPUBLISHED
CHRISTOPHER ERIC GRIFFIN, JR.,                  )    OPINION AND SHALL NOT
                                                )    BE CITED AS AUTHORITY
          Defendant-Appellant.                  )
                                                )

          Appeal from the District Court of the Sixth Judicial District, State of Idaho,
          Bannock County. Hon. Stephen S. Dunn, District Judge.

          Judgment of conviction, affirmed.

          Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis, Deputy
          Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Andrew W. Wake, Deputy
          Attorney General, Boise, for respondent.
                    ________________________________________________

GRATTON, Judge
          Christopher Eric Griffin, Jr. appeals from his judgment of conviction entered upon his
conditional guilty plea to attempted arson. Griffin argues the district court erred in excluding
proposed testimony regarding a defense of impossibility. For the reasons set forth below, we
affirm.
                                                I.
                       FACTUAL AND PROCEDURAL BACKGROUND
          Griffin was charged with arson in the third degree and attempted arson in the third
degree. The charges arose after Griffin used a “Molotov cocktail” on the sidewalk outside the
Bannock County Courthouse. Surveillance video captured the act and a passerby reported a burn
mark and charred glass on the sidewalk. The following day, Griffin admitted to filling a beer
bottle with gas with the intent to do the same. A gas station employee saw Griffin with the open


                                                1
container filled with gas and called the police. A magistrate subsequently found probable cause
and the prosecutor filed an information charging arson in the third degree and attempted arson in
the third degree.
       Prior to trial, the State moved to exclude the testimony of Griffin’s proposed expert
witness whose testimony would address the inability for concrete to burn. Griffin argued the
testimony was relevant because one cannot attempt to commit a crime that cannot be committed.
The district court granted the motion, determining impossibility is not a defense for an attempt
charge. Thereafter, the parties entered into a conditional plea agreement. Pursuant to the
agreement, Griffin would plead guilty to one count of attempted arson in the third degree while
the remaining charge would be dismissed. Griffin reserved his right to appeal the district court’s
determination on the impossibility defense. Griffin’s case proceeded to sentencing and the
district court sentenced Griffin to a unified term of five years with three years determinate. The
district court subsequently suspended the sentence and placed Griffin on probation for a period
of four years. Griffin timely appeals.
                                                 II.
                                   STANDARD OF REVIEW
       The trial court has broad discretion in the admission and exclusion of evidence and its
decision to admit evidence will be reversed only when there has been a clear abuse of that
discretion. State v. Folk, 162 Idaho 620, 625, 402 P.3d 1073, 1078 (2017).
                                                III.
                                           ANALYSIS
       Griffin argues the district court erred in excluding his proposed expert and any testimony
regarding a defense of impossibility. Specifically, he asserts there cannot be an attempt to
commit a crime that cannot be committed. Based on this Court’s precedent, the district court
held that factual or legal impossibility is irrelevant for purposes of Idaho’s attempt statute. 1 See
State v. Glass, 139 Idaho 815, 818, 87 P.3d 302, 305 (Ct. App. 2003); State v. Curtiss, 138 Idaho
466, 467, 65 P.3d 207, 208 (Ct. App. 2002).            Griffin argues that because cement is not
combustible it is impossible for him to have attempted to burn the sidewalk and therefore it is not
possible for him to be guilty of attempted arson. The State asserts there is no impossibility
defense to an attempt charge and the evidence was properly excluded.             The district court

1
        Idaho Code § 18-306.
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correctly determined the same. Factual or legal impossibility is not relevant to a determination
of the defendant’s guilt of attempt. Glass, 139 Idaho at 818, 87 P.3d at 305. Griffin concedes as
much in his briefing. Given this precedent and Griffin’s lack of argument otherwise, we hold the
district court did not err in excluding Griffin’s proposed expert witness.
                                                IV.
                                         CONCLUSION
       The district court did not abuse its discretion by excluding evidence related to a defense
of impossibility. Therefore, Griffin’s judgment of conviction is affirmed.
       Chief Judge HUSKEY and Judge LORELLO CONCUR.




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