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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38482

STATE OF IDAHO,

Plaintiff-Respondent,

v.

CLYDE OWEN DIXEY, JR.,

Defendant-Appellant.

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2012 Unpublished Opinion No. 362

Filed: February 10, 2012

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

Appeal from the District Court of the Seventh Judicial District, State of Idaho, 

Bingham County. Hon. Darren B. Simpson, District Judge. 

Judgment of conviction for burglary, affirmed. 

Sara B. Thomas, State Appellate Public Defender; Elizabeth A. Allred, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Elizabeth A. Koeckeritz, Deputy 

Attorney General, Boise, for respondent. 

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MELANSON, Judge

Clyde Owen Dixey, Jr. appeals from his judgment of conviction for burglary. For the 

reasons set forth below, we affirm. 

Dixey was charged with two counts of burglary. I.C. § 18-1401. Count 1 alleged that 

Dixey entered the warehouse of a tire shop in November 2006 with the intent to commit theft by 

taking tires. Count 2 alleged that Dixey entered a warehouse at the same tire shop in September 

2006 with the intent to commit theft by taking tires. Dixey pled not guilty, and the case 

proceeded to a jury trial where Dixey was found guilty of both counts. He was sentenced to 

concurrent unified terms of eight years, with minimum periods of confinement of four years. 

Dixey appeals, challenging only the sufficiency of the evidence for the November 2006 

conviction. 

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 
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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). Substantial evidence is such relevant evidence as a reasonable mind might accept to 

support a conclusion. State v. Johnson, 149 Idaho 259, 263, 233 P.3d 190, 194 (Ct. App. 2010). 

Substantial evidence is more than a scintilla, but less than a preponderance. State v. Bennett, 142 

Idaho 166, 169, 125 P.3d 522, 525 (Ct. App. 2005). 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. 

The evidence presented at trial showed that, in September 2006, an employee of a tire 

shop saw Dixey’s truck parked outside the tire warehouse. The employee testified that he saw 

Dixey exit the warehouse and throw a tire in the back of his truck. The employee noted the tire 

Dixey threw into the truck bore a white sticker like those the tire store used to mark its 

merchandise. The employee stated that, when Dixey saw him, Dixey got into his truck and 

drove away quickly, leaving several more tires lying outside the warehouse door. The employee 

wrote down Dixey’s license plate number. 

The employee further testified that, in November 2006, he and another employee saw 

Dixey’s truck parked by the warehouse door again. He stated he saw Dixey exit the warehouse 

but noted that Dixey’s hands were empty. The employee testified he recognized Dixey from the 

September incident. The employee went back into the store to notify the owner that Dixey was 

on the premises. The second employee testified that he called out to Dixey to ask him what he 

was doing. Dixey told the employee he had tires to trade. The employee asked Dixey to pull 

around to the front of the store. Once at the front of the store, Dixey was confronted by the store 

owner. The store owner testified that he looked into the back of Dixey’s truck and saw several 

new tires, none of which belonged to the store. Dixey asked the store owner whether he was 

interested in making a trade for the tires. The store owner testified he then turned to his 

employee and asked if Dixey was the same man who was seen taking tires from the warehouse in 

September. When the employee answered in the affirmative, Dixey jumped into his truck and 
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drove away quickly. During closing argument, the prosecutor encouraged the jury to infer, based 

on Dixey’s conduct during the September incident, that he went to the warehouse in November 

with the intent of committing theft by taking tires. 

Dixey argues that the state failed to present substantial evidence to sustain his judgment 

of conviction for the incident occurring in November 2006. Specifically, Dixey argues that the 

evidence presented at trial in support of the September charges cannot be used to demonstrate he 

had the intent to commit a theft when he entered the warehouse in November. To convict a 

defendant of burglary, the state must prove that a person enters a structure with the intent to 

commit a felony--in this case theft. See I.C. § 18-1401; State v. Martin, 104 Idaho 195, 196, 657 

P.2d 492, 493 (Ct. App. 1983). Dixey asserts that, absent the September evidence, the state did 

not present sufficient evidence at trial to prove beyond a reasonable doubt he had the intent to 

commit theft when he entered the warehouse during the November incident. We note that Dixey 

did not object at trial on I.R.E. 404(b) grounds to the use of the September incident to support the 

intent element of the November allegations. In addition, Dixey does not argue on appeal that the 

evidence of the September incident was improper propensity evidence under I.R.E. 404(b). 

Therefore, when determining whether there was sufficient evidence to convict Dixey of the 

November charges, we will consider all evidence presented at Dixey’s trial, including evidence 

relating to the September incident.

The record demonstrates there was substantial evidence upon which a reasonable trier of 

fact could have found that the prosecution sustained its burden of proving the intent element of 

the November burglary charge. The evidence at trial showed that, in September 2006, a tire 

store employee observed Dixey walk out of the tire warehouse and throw a tire into the back of 

his truck. The employee observed a white sticker on the tire that was similar to those the store 

used to mark its tires for sale. The employee testified that Dixey drove off hurriedly when he 

saw the employee. The evidence also demonstrated that Dixey was observed by the same 

employee with his truck backed up to a tire warehouse door in November 2006. The employee 

saw Dixey exit the warehouse. When the store owner asked the employee if Dixey was the same 

man he had observed during the September incident, Dixey jumped in his truck and drove away

quickly. Dixey’s actions in November--parking his truck near the warehouse and entering the 

warehouse without an employee present--closely mirrored his actions in September when he was 

seen putting tires into his truck. In addition, Dixey’s actions in taking off in his truck when he 
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was confronted by the store owner also indicated his intent and consciousness of guilt. Viewing 

all of the evidence presented at trial in the light most favorable to the state, we conclude there 

was sufficient evidence for a reasonable jury to find that Dixey entered the warehouse in 

November with the intent of committing theft by taking tires. Thus, there was substantial 

evidence upon which a reasonable jury could have found that the state sustained its burden of 

proving the intent element of burglary beyond a reasonable doubt. Accordingly, Dixey’s 

judgment of conviction is affirmed. 

Chief Judge GRATTON and Judge LANSING, CONCUR.