               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40635

STATE OF IDAHO,                                   )       2014 Unpublished Opinion No. 666
                                                  )
       Plaintiff-Respondent,                      )       Filed: August 13, 2014
                                                  )
v.                                                )       Stephen W. Kenyon, Clerk
                                                  )
KIRK ALLEN HUFF,                                  )       THIS IS AN UNPUBLISHED
                                                  )       OPINION AND SHALL NOT
       Defendant-Appellant.                       )       BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bonneville County. Hon. Joel E. Tingey, District Judge.

       Judgment of conviction and unified sentence of three years, with one year
       determinate, for attempted burglary, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Kirk Allen Huff appeals from his judgment of conviction and sentence for attempted
burglary. Specifically, Huff argues error in instructing the jury, challenges the sufficiency of the
evidence to support the conviction, and argues the sentence imposed amounted to an abuse of
discretion. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       At approximately 8:00 p.m. one evening in July 2012, Chad Nelson was informed by his
young daughter that two men were trying to break into a utility trailer parked on the back of
Nelson’s property. Nelson and his wife went outside to investigate, but initially did not see
anyone. Nelson observed a significant amount of damage to the trailer--three corners of the door
were destroyed, as was the locking mechanism. Nelson began searching for the perpetrators and
approximately five to ten minutes later, he saw his neighbor, Huff, walking near the trailer.

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Nelson watched as Huff picked up an approximately two-foot long 4x4 piece of wood with
which he began hitting the door of the trailer. Nelson took a video recording of the incident on
his phone. After being confronted by Nelson, Huff stated he was merely trying to break the nails
out of the piece of wood. Nelson called 911 and Huff walked away. After Nelson began
following him, Huff began running. Nelson found Huff hiding in some bushes and waited in the
vicinity until law enforcement arrived. When questioned by the responding officer, Huff denied
tampering with the trailer and denied he was the person in the video recording taken by Nelson.
       Huff was charged with attempted burglary, Idaho Code §§ 18-1401, 18-306. He pled not
guilty and his case proceeded to trial where a jury found him guilty as charged. The district
court imposed a unified three-year sentence, with one year determinate, and retained jurisdiction.
Huff filed an Idaho Criminal Rule 35 motion for reduction of his sentence, which the district
court denied.      At the conclusion of the retained jurisdiction period, Huff was placed on
probation. He now appeals from his judgment of conviction and sentence.
                                                 II.
                                           ANALYSIS
       Huff contends the district court erred by failing to sua sponte give the jury a specific
unanimity instruction. He also argues there was insufficient evidence presented at trial to
support a conviction of attempted burglary and that the sentence imposed was an abuse of
discretion.
A.     Jury Instruction
        Huff argues that the district court’s failure to give a specific unanimity instruction was
reversible error. He contends the district court erred by failing to instruct the jury that they must
be unanimous in their determination as to which of his alleged acts constituted attempted
burglary.
       The question of whether the jury has been properly instructed is a question of law over
which we exercise free review. State v. Severson, 147 Idaho 694, 710, 215 P.3d 414, 430 (2009).
When reviewing jury instructions, we ask whether the instructions as a whole, and not
individually, fairly and accurately reflect applicable law. State v. Calver, 155 Idaho 207, 214,
307 P.3d 1233, 1240 (Ct. App. 2013); State v. Bowman, 124 Idaho 936, 942, 866 P.2d 193, 199
(Ct. App. 1993).




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       Huff did not object to the jury instructions before the trial court, and therefore, he must
show the alleged error is fundamental. Calver, 155 Idaho at 214, 307 P.3d at 1240. An appellate
court should reverse an unobjected-to error only when the defendant persuades the court that the
alleged error: (1) violates one or more of the defendant’s unwaived constitutional rights; (2) is
clear or obvious without the need for reference to any additional information not contained in the
appellate record; and (3) affected the outcome of the trial proceedings. State v. Perry, 150 Idaho
209, 226, 245 P.3d 961, 978 (2010).
       In a criminal case, the district court has a duty to give the jury instructions on all matters
of law necessary for their information. I.C. § 19-2132; State v. Gain, 140 Idaho 170, 172, 90
P.3d 920, 922 (Ct. App. 2004); State v. Mack, 132 Idaho 480, 483, 974 P.2d 1109, 1112 (Ct.
App. 1999).     The trial court thus must give instructions on rules of law material to the
determination of the defendant’s guilt or innocence. Gain, 140 Idaho at 172, 90 P.3d at 922;
Mack, 132 Idaho at 483, 974 P.2d at 1112. Idaho law requires a trial court to instruct a jury that,
in order to convict a defendant, it must unanimously agree on the defendant’s guilt. State v.
Adamcik, 152 Idaho 445, 474, 272 P.3d 417, 446 (2012); Severson, 147 Idaho at 711, 215 P.3d at
431. An instruction that the jury must unanimously agree on the facts giving rise to the offense,
however, is generally not required. Adamcik, 152 Idaho at 474, 272 P.3d at 446; Severson, 147
Idaho at 711, 215 P.3d at 431. An exception to this general principle is when it appears that
there is a genuine possibility of jury confusion or that a conviction may occur as the result of
different jurors concluding that the defendant committed different acts. Gain, 140 Idaho at 172,
90 P.3d at 922. Where the evidence indicates that separate and distinct incidents of criminal
conduct could provide a basis for a juror’s finding of guilt on the criminal charge in any count,
the trial court must either instruct the jury that it must unanimously agree on the specific incident
constituting the offense in each count, regardless of whether the defendant requests such an
instruction or, in the alternative, jury unanimity must be protected by the State’s election of the
act upon which it will rely for the conviction. Gain, 140 Idaho at 172-73, 90 P.3d at 922-23.
       Here, the jury was instructed, in relevant part, that to be guilty of attempted burglary,
Huff must have done “some act which was a step towards committing the crime of burglary” and
that “at the time of said act, the defendant had the specific intent to commit the crime of theft.”
Huff contends that, given the facts and circumstances of the case, some jurors could have found
that the act of hitting the locking mechanism (which he contends occurred before Nelson went


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outside) was committed by Huff and constituted the attempt while others may have found Huff’s
act of picking up the piece of wood and/or hitting the trailer in Nelson’s presence constituted the
attempt. 1 Thus, he argues, the district court was required to give a specific unanimity instruction
telling the jurors that they must unanimously agree as to which specific act or acts constituted the
attempted burglary.
       Although there are several reasons that this is not an instance where a specific unanimity
instruction was required, we need only address one. Even assuming Huff is correct that the
evidence indicated there were several distinct criminal acts that could support one count of
attempted burglary, a review of the record makes clear that the State elected Huff’s striking of
the trailer with the piece of wood (as recorded on video by Nelson) to support the charge,
rendering the giving of a unanimity instruction unnecessary. See Gain, 140 Idaho at 173, 90
P.3d at 923 (holding that the State’s election of the act upon which it would rely to support the
charge in each of the three counts of lewd conduct against Gain rendered the giving of a
unanimity instruction unnecessary). At trial, the State consistently focused on Huff’s act of
striking the trailer, as captured by Nelson on video, as the act supporting the attempted burglary
charge. During closing argument, when discussing the evidence supporting each element of the
charge, the prosecutor explicitly listed the video-taped strike as the act upon which the State was
relying. See id. (recognizing that the jury heard testimony regarding various instances of abuse,
but holding a unanimity instruction was not required where the State, in its closing argument,
directed the jury to the specific act it was relying upon to support the count). References by the
State to the damage that occurred prior to the video-taped strike were largely made to support the
mens rea element in response to Huff’s defense that the damage to the trailer was caused by two
unnamed men and that he had, in fact, merely been trying to remove a nail and did not have the
requisite intent to commit theft. No other act mentioned by the State at trial would logically be
considered a basis for the burglary charge. Accordingly, Huff has failed to show the district
court’s failure to give a unanimity instruction was error, let alone fundamental error.



1
        In addition to these two acts, Huff contends there was evidence of “a various litany of
acts” that the jury could have relied upon to find Huff guilty of attempted burglary, including
that Nelson found Huff hiding in the bushes. We fail to see, and Huff does not explain, how
such acts could logically be found by a jury to comprise the requisite act for attempted burglary
and do not address them further.

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B.     Sufficiency of the Evidence
       Huff also argues there was insufficient evidence presented at trial to support a conviction
of attempted burglary.      Specifically, he contends there was insufficient evidence that he
attempted to enter the trailer with the intent to commit theft.
       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.
       In relevant part, the jury was instructed that in order to find Huff guilty of attempted
burglary, it must find
       3.     [he] did some act which was a step towards committing the crime of
       burglary, and
       4.     at the time of said act, the defendant had the specific intent to commit the
       crime of theft.

On appeal, Huff challenges the sufficiency of the evidence as to the last element, contending
there was no evidence he was attempting to enter the trailer and “no evidence, circumstantial or
direct, was ever introduced that his intent in striking the trailer with a piece of wood was
anything other than what he told Mr. Nelson--that he was trying to get the nails out of the wood.”
       Huff’s argument fails. As both parties recognize, a jury may infer intent from the
commission of acts and the surrounding circumstances. State v. Marsh, 141 Idaho 862, 867, 119
P.3d 637, 642 (Ct. App. 2004). Here, Nelson’s child reported that two men were attempting to
break into the trailer. Nelson himself witnessed (and recorded) Huff picking up the piece of
wood, approaching the trailer, and hitting it. The damage to the trailer was around the locking
mechanism, certainly giving rise to a reasonable inference of intent to remove the lock in order
to gain entry into the trailer and, in turn, commit theft. See Knutson, 121 Idaho at 104, 822 P.2d

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at 1001 (“[E]vidence of a forced entry will support a permissive inference of burglary with the
requisite intent to commit a theft.”). Despite Huff’s argument on appeal that there was no
evidence Huff caused the damage to the locking mechanism because the damage was observed
by Nelson prior to when Nelson saw Huff, there was sufficient evidence to support an inference
that it was Huff who caused at least some of the initial damage. Huff was found in the vicinity
immediately after Nelson observed the initial damage and he was seen striking the trailer,
demonstrating his willingness and ability to damage the trailer.
       Additionally, when confronted by Nelson, Huff fled from the scene and attempted to hide
in the bushes, giving rise to a reasonable inference of consciousness of guilt. See State v.
Pokorney, 149 Idaho 459, 463, 235 P.3d 409, 413 (Ct. App. 2012) (“Evidence of flight, escape,
or failure to appear on the part of a defendant is often identified as relevant to demonstrate
consciousness of guilt.”). Contrary to Huff’s argument on appeal, there was ample evidence to
infer that he was not merely trying to remove a nail from the wood as he claimed and, in this
regard, the jury was free to find his version not credible. Taking all reasonable inferences in the
State’s favor, there was sufficient evidence for a reasonable juror to find that Huff attempted to
gain access to the trailer and his intent in doing so was to commit theft.
C.     Sentence Review
       Huff contends his sentence was an abuse of discretion because it is excessive given any
view of the facts. 2 Huff concedes his sentence is not illegal, but contends the district court failed
to properly consider certain mitigating factors in imposing the sentence:            Huff’s difficult
childhood; medical problems, including mental health issues; severe alcohol abuse problem;
remorse for his actions; good work history; military service; and strong support he has from
family members.
       An appellate review of a sentence is based on an abuse of discretion standard. State v.
Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct. App. 2000). Where a sentence is not illegal,
the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion.
State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such
an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice,


2
        In his initial brief on appeal, Huff also argued the district court abused its discretion by
retaining jurisdiction over him instead of placing him on probation. Huff was subsequently
placed on probation and now limits his appeal to the length of his underlying sentence.

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103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it
appears at the time of sentencing that confinement is necessary “to accomplish the primary
objective of protecting society and to achieve any or all of the related goals of deterrence,
rehabilitation or retribution applicable to a given case.” State v. Toohill, 103 Idaho 565, 568, 650
P.2d 707, 710 (Ct. App. 1982). Where an appellant contends that the sentencing court imposed
an excessively harsh sentence, we conduct an independent review of the record, having regard
for the nature of the offense, the character of the offender, and the protection of the public
interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct. App. 1982). When
reviewing the length of a sentence, we consider the defendant’s entire sentence. State v. Oliver,
144 Idaho 722, 726, 170 P.3d 387, 391 (2007).
        In arguing for the sentence the court ultimately imposed, the State noted it was Huff’s
second felony conviction and that he had served prior probationary periods without success, as
well as “a good deal of local jail incarceration.” The State also noted that Huff continued to
“deny any intent to commit a crime and to blame others for his circumstances” and “offered no
remorse for his actions or concern for the impact of his actions on the victim.” Given Huff’s
continued use of alcohol and past patterns of criminal behavior, the State argued that a more
significant sentence was necessary in order to protect society. In imposing sentence, the district
court indicated it considered the presentence investigation report, explicitly stated the statutory
goals of sentencing, and then mentioned several relevant considerations in regard to Huff
specifically:
              As I look at your prior record, which is pretty significant, I think there’s a
       combination of criminal thinking and then the drinking and poor decision-making
       has gotten you into trouble a number of times; and here we are again on a new
       felony. And so I don’t have a lot of confidence that you’re a candidate for
       probation at least at this time, but I’m inclined to let you try and prove that to me.

Thus, the district court clearly did show Huff some leniency in giving him an opportunity to
show that he could succeed on probation, despite numerous indications from his past that he
would fail.     Considering all the relevant circumstances, and given Huff’s prior record and
admitted serious alcohol abuse problem, we cannot say the district court abused its discretion in
imposing an underlying sentence of three years, with one year determinate.




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                                               III.
                                        CONCLUSION
       The district court did not err by failing to sua sponte give the jury a specific unanimity
instruction. Additionally, there was sufficient evidence presented at trial to support a conviction
of attempted burglary, and the sentence imposed was not an abuse of discretion.             Huff’s
judgment of conviction and sentence are affirmed.
       Judge GRATTON and Judge MELANSON CONCUR.




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