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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 42410

STATE OF IDAHO,

Plaintiff-Respondent,

v.

JESSE JAY WEEKS,

Defendant-Appellant.

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2016 Opinion No. 22

Filed: March 17, 2016

Stephen W. Kenyon, Clerk

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

Kootenai County. Hon. Fred M. Gibler, District Judge. 

Judgment of conviction, affirmed.

Sara B. Thomas, State Appellate Public Defender; Brian R. Dickerson, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney 

General, Boise, for respondent. 

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HUSKEY, Judge

Jesse Jay Weeks appeals from his judgment of conviction for burglary. Weeks alleges 

the district court did not properly instruct the jury on the elements of theft by disposing of stolen 

property. Weeks further argues because there was insufficient evidence for a probable cause 

finding, the district court erred in denying his motion to dismiss the information. Finally, he 

contends there was insufficient evidence at trial to support the conviction. For the reasons set 

forth below, we affirm.

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The evidence presented at trial is as follows. Weeks lived part-time in a camp trailer 

outside a residence where his cousin lived with several roommates. Weeks’ cousin testified that 

his roommates did not know Weeks was living on the premises or that he had access to the 

residence. Weeks also testified and the following facts were presented to the jury. Weeks went 
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to the residence when none of the residents were home to retrieve laundry he had left in his 

cousin’s room. Weeks was under the influence of prescription drugs, and while he was in the 

house he found and took an iPad 2 that belonged to one of the roommates. Weeks took the iPad 

2 to a pawnshop and first attempted to obtain a loan on the device, but instead sold the iPad 2 to 

the pawnshop for $185. The owner of the iPad 2 reported the theft, and law enforcement 

identified Weeks as the person who sold the device to the pawnshop.

Weeks was charged with burglary for entering the pawnshop with the intent to commit 

the crime of theft by disposing of stolen property.1 Weeks sought to dismiss this charge at the 

preliminary hearing on the grounds that he could not be guilty of having stolen the iPad 2 and 

also guilty of disposing of the stolen property. The magistrate denied the motion and determined 

there was probable cause to support the burglary charge because Weeks entered the pawnshop 

with the intent to dispose of the stolen device in order to receive money. Weeks renewed this 

argument in a motion to dismiss before the district court and argued Idaho Criminal Jury 

Instruction 547 requires the State to prove the property was stolen by another, not stolen by the 

accused. The district court denied the motion and a subsequent motion for reconsideration, 

holding ICJI 547 was inconsistent with Idaho Code § 18-2403(4). The district court denied the 

motions based on its determination that I.C. § 18-2403(4) does not require a finding that the 

stolen property be stolen “by another” and that substantial evidence was presented at the 

preliminary hearing to support a probable cause finding that Weeks committed the burglary. 

Weeks argued the statute was ambiguous due to the inconsistency with ICJI 547. The district 

court determined I.C. § 18-2403(4) was unambiguous and that the court need not look at the 

legislative history of the 2001 amendment that eliminated the “by another” requirement for the 

disposition of stolen property offense. Over the objection of Weeks, at the conclusion of the 

trial, the district court provided the jury an instruction consistent with the language of 

I.C. § 18‐2403(4). Weeks appeals the district court’s jury instruction and the denial of his 

motion to dismiss, and challenges the sufficiency of the State’s evidence.

 

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Prior to trial, this case was joined with the companion case in which Weeks was charged 

with burglary for entering the residence with the intent to steal the iPad 2. He was found guilty 

of the included offense of unlawful entry and has not appealed that verdict. 
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II.

ANALYSIS

A. The Jury Instruction

Throughout the case and on appeal, Weeks has vigorously argued that he could not be 

found guilty of burglary by entering the pawnshop with the intent to commit the crime of theft by 

disposing of stolen property. This assertion is grounded in an inconsistency between the 

language of I.C. § 18-2403(4) and ICJI 547. He argues the district court erred by improperly 

instructing the jury as to the State’s burden to prove he intended to commit the crime of theft by 

disposing of stolen property.

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. Bowman, 124 Idaho 936, 942, 866 P.2d 193, 

199 (Ct. App. 1993). 

A trial court presiding over a criminal case must instruct the jury on all matters of law 

necessary for the jury’s information. I.C. § 19-2132. In other words, a trial court must deliver 

instructions on the rules of law that are “material to the determination of the defendant’s guilt or 

innocence.” State v. Mack, 132 Idaho 480, 483, 974 P.2d 1109, 1112 (Ct. App. 1999). This 

necessarily includes instructions on the “nature and elements of the crime charged and the 

essential legal principles applicable to the evidence that has been admitted.” State v. Gain, 140 

Idaho 170, 172, 90 P.3d 920, 922 (Ct. App. 2004). Each party is entitled to request the delivery 

of specific instructions. However, such instructions will only be given if they are “correct and 

pertinent.” I.C. § 19-2132. A proposed instruction is not “correct and pertinent” if it is: (1) an 

erroneous statement of the law; (2) adequately covered by other instructions; or (3) “not 

supported by the facts of the case.” Severson, 147 Idaho at 710-11, 215 P.3d at 430-31 (quoting 

State v. Olsen, 103 Idaho 278, 285, 647 P.2d 734, 741 (1982)). Ordinarily the language 

employed by the legislature in defining a crime is deemed to be best suited for that purpose, and 

error cannot be predicated on its use in jury instructions. State v. Zichko, 129 Idaho 259, 264, 

923 P.2d 966, 971 (1996). 

At issue in this case is a conflict between the language of a pattern jury instruction 

approved by the Idaho Supreme Court and I.C. § 18-2403(4). This Court has stated, “[t]he 
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pattern ICJI instructions are presumptively correct. The Idaho Supreme Court approved the 

pattern jury instructions and has recommended that the trial courts use the instructions unless a 

different instruction would more adequately, accurately, or clearly state the law.” State v. Reid, 

151 Idaho 80, 85, 253 P.3d 754, 759 (Ct. App. 2011). In the Introduction and General Directions

for Use of ICJI, the jury instruction committee, with the approval of the Supreme Court, instructs 

trial courts that “as the law in any respect becomes more refined or is modified by statute or 

appellate decision, the ICJI instructions must be modified accordingly.” See generally State v. 

Miller, 130 Idaho 550, 552, 944 P.2d 147, 149 (Ct. App. 1997).

In order to be found guilty of burglary, I.C. § 18-1401, the State must prove a person 

entered “any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, 

outhouse, or other building, tent, vessel, vehicle, trailer, airplane or railroad car, with intent to 

commit any theft or any felony.” The State alleged, and the jury was instructed, that the State 

must prove beyond a reasonable doubt that Weeks entered the pawnshop with the intent to 

commit the crime of theft by disposing of stolen property. This instruction was consistent with 

ICJI 511 and I.C. § 18-1401.

Idaho Code § 18-2403(4) provides, in relevant part, “a person commits theft when he 

knowingly receives, retains, conceals, obtains control over, possesses, or disposes of stolen 

property, knowing the property to have been stolen or under such circumstances as would 

reasonably induce him to believe that the property was stolen.” A former version of this code 

section stated “knowing the property to have been stolen by another,” however, the words “by 

another” were eliminated by the Idaho Legislature in 2001. Despite the amendment to the 

statute, ICJI 547 lists the elements of the crime of theft by possession of stolen property as 

follows:

1. On or about [date]

2. in the state of Idaho

3. the defendant [name] knowingly [received] [retained] [concealed] 

[obtained control over] [possessed] [disposed of] [describe property],

4. either knowing the property was stolen by another or under such 

circumstances as would reasonably induce the defendant to believe the 

property was stolen,

5. such property was in fact stolen, and

6. any of the following occurred:

(a) the defendant had the intent to deprive the owner permanently of the 

use or benefit of the property, or
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(b) the defendant knowingly used, concealed or abandoned the property in 

such manner as to deprive the owner permanently of the use or benefit of 

the property, or

(c) the defendant used, concealed, or abandoned the property knowing 

that such use, concealment or abandonment would have probably deprived 

the owner permanently of the use or benefit of the property.

(Emphasis added.)

Here, the district court rejected Weeks’ argument that the language of the pattern jury 

instruction should control over the language of the amended statute, and the jury was instructed 

as follows:

Instruction No. 19:

A person steals property and commits theft when, with intent to deprive 

another of property or appropriate the same to the person or to a third party, such 

person wrongfully takes, obtains, or withholds such property from an owner 

thereof.

A person also commits theft when such person knowingly received, 

retains, conceals, obtains control over, possesses, or disposes of stolen property, 

knowing the property to have been stolen or under such circumstances as would 

reasonably induce him to believe that the property was stolen, and:

a. intends to deprive the owner permanently of the use or benefit of 

the property; or

b. knowingly uses, conceals or abandons the property in such manner 

as to deprive the owner permanently of such use or benefit; or

c. uses, conceals or abandons the property knowing such use, 

concealment or abandonment probably will deprive the owner permanently of 

such use or benefit.

Instruction No. 23:

In order for the Defendant to be guilty of Theft by Disposing of Stolen 

Property, the state must prove each of the following:

1. On or about December 24, 2012

2. in the state of Idaho

3. the defendant Jesse Jay Weeks knowingly disposed of an iPad 2

4. knowing the property was stolen

5. such property was in fact stolen, and

6. any of the following occurred

a. the defendant had the intent to deprive the owner 

permanently of the use or benefit of the property, or

b. the defendant knowingly used, concealed or abandoned the 

property in such manner as to deprive the owner 

permanently of the use or benefit of the property, or
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c. the defendant used, concealed, or abandoned the property 

knowing that such use, concealment, or abandonment 

would have probably deprived the owner permanently of 

the use or benefit of the property.

This instruction reflects the current version of I.C. § 18-2403(4) and was a proper 

statement of the law. The district court properly identified its duty to amend the pattern jury 

instruction to ensure that the jury was given an instruction consistent with the current state of 

Idaho law. We find no error in the use of this jury instruction. 

B. Motion to Dismiss the Information

The second issue raised on appeal is Weeks’ argument regarding his motion to dismiss 

the information for lack of probable cause as to the elements of burglary. The argument on 

appeal focuses on the claim that the burglary statute, as it exists in Idaho, is ambiguous as to the 

term “enter” and Weeks urges this Court to adopt a definition of “enter” that includes an element 

of unlawfulness and which fails to criminalize entry into a place open for business. In response, 

the State argues that Weeks did not preserve this issue for appeal because Weeks’ arguments 

both before the magistrate and district court focused on the element of the theft as discussed 

above. Generally, issues not raised below may not be considered for the first time on appeal. 

State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). 

While Weeks challenged the probable cause finding both before the magistrate and 

district court, the only reference to this argument in the record is a statement made during the 

preliminary hearing where Weeks argues, “burglary is really a (sic) concern with a space. The 

space could be the privacy of a home, office building, office, closed vehicle, et cetera . . . . And 

the felony, the entry with intent to commit the felony is centered on that space.” In all other 

motions and arguments before the court, Weeks focused his arguments on the claim that he could 

not be guilty of burglary because the State could not prove his intent to commit theft by 

disposing of stolen property because he was the party responsible for the original theft of the 

iPad 2. 

We cannot agree with Weeks’ claim that this argument is merely an extension of the theft 

argument raised with the magistrate and district court because it is a different issue supported 

with independent sources of legal authority and one that is not so intertwined with the arguments 

presented such that we could definitively determine that Weeks intended this issue to be 

addressed by the district court. In the absence of this argument to the district court, we cannot 
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determine that the district court erred in denying Weeks’ motion to dismiss for a lack of probable 

cause.

However, even if the statement raised in the preliminary hearing could be interpreted as 

preserving this issue on appeal, the Idaho Supreme Court has recently determined that 

I.C. § 18‐1401 shall not be interpreted in the manner suggested by Weeks. State v. Rawlings, 

159 Idaho 498, 501-02, 363 P.3d 339, 342-43 (2015). In Rawlings, the Idaho Supreme Court 

held:

In 1887, the territorial legislature enacted a burglary statute that expanded the 

statute’s scope to what is essentially the same as the current statute. It applied to 

the entry, with the required intent, into “any house, room, apartment, tenement, 

shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel, 

or railroad car.” Rev. Stats. Idaho Terr. § 7014 (1887). Since 1887, Idaho’s 

burglary statute has applied to the entry into a store during business hours to 

commit a theft, except for about one year. In 1971, the legislature repealed the 

burglary statute and adopted the Model Penal Code, which excluded from 

burglary “premises [that] are at the time open to the public.” Ch. 143, §§ 1, 5, 

1971 Idaho Sess. Laws 630, 688, 730. The following year, the legislature 

repealed the Model Penal Code and re-enacted the version of burglary that had 

been repealed in 1971, so that burglary again included entry, with the required 

intent, into a store. Ch. 336, § 1, 1972 Idaho Sess. Laws 844, 871. 

Rawlings, 159 Idaho at 502, 363 P.3d at 343. The Idaho Supreme Court has determined that the 

“enter” element of I.C. § 18-1401 applies to any “entry, with the required intent, into a store” and 

this decision resolves any question raised by Weeks on this issue. Rawlings, 159 Idaho at 502, 

363 P.3d at 343. 

C. Sufficiency of the Evidence

Finally, Weeks challenges his conviction on the basis that there was insufficient evidence 

to support a conviction for burglary because the State failed to prove beyond a reasonable doubt 

that he unlawfully entered the pawn shop. 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. HerreraBrito, 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 
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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. 

There was sufficient evidence for the jury to return a guilty verdict for the burglary 

offense as charged. We reject Weeks’ argument that the State was required to prove that he 

unlawfully entered the pawnshop pursuant to the Rawlings decision addressed above. In 

addition, Weeks’ own testimony supports the jury’s determination that he entered the pawnshop 

with the intent to dispose of the stolen iPad 2, that Weeks knew the iPad 2 was stolen, and he did 

dispose of the property by selling the stolen device for $185. The jury had substantial and 

competent evidence to support its determination of guilt for the crime of burglary.

III.

CONCLUSION

The district court properly instructed the jury on the applicable definition of theft by 

disposing of stolen property. Further the Idaho Supreme Court’s decision in Rawlings has held 

there is no requirement that one “enter” a commercial business open to the public unlawfully.

Moreover, Weeks failed to preserve that issue for appeal. Finally, the conviction is supported by 

sufficient evidence. Weeks’ conviction for burglary is affirmed.

Judge GUTIERREZ and Judge GRATTON CONCUR.