State v. Lindsay

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 49319

STATE OF IDAHO, )
) Filed: March 4, 2024
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
SHANNON PATRICK LINDSAY, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Michael J. Reardon, District Judge.

Judgment of conviction for grand theft and burglary, vacated.

Erik R. Lehtinen, State Appellate Public Defender; Jason C. Pintler, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
________________________________________________

GRATTON, Chief Judge
Shannon Patrick Lindsay appeals from his judgment of conviction for grand theft, Idaho
Code § 18-2403(1), and burglary, I.C. § 18-1401. Lindsay argues that the district court erred in
denying his motion for mistrial. Lindsay also argues that his convictions should be vacated due to
evidentiary errors at trial. The district court erred in denying Lindsay’s motion for mistrial as the
district court’s supplemental instruction in response to a question from the jury, without the
knowledge of or input from counsel, resulted in a legal defect in the proceeding that had a
continuing impact on the trial. Consequently, Lindsay’s judgment of conviction is vacated.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Lindsay attempted to use a stolen credit card at a convenience store, but the card was
declined. The owner of the credit card had his wallet stolen while working out at a gym around
the same time Lindsay was also at the gym. The State charged Lindsay with grand theft, alleging

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that he either “took” or “obtained” the credit card, and with burglary for entering the convenience
store with the intent to commit theft.
After the jury began its deliberations, the jury submitted a question to the district court
regarding the proof required for the “took” or “obtained” element of theft. Without discussing the
jury’s question with the parties, the district court instructed the jury that it must find Lindsay guilty
if it determined Lindsay found and then “withheld” the credit card from the victim--a means of
committing theft that the State did not include in the charging document. The jury returned a
verdict finding Lindsay guilty of grand theft and burglary. Lindsay filed a motion for mistrial
based on the language of the supplemental instruction given in response to the jury’s question
during deliberations; the district court denied the motion. Lindsay timely appeals from his
judgment of conviction.
II.
STANDARD OF REVIEW
In criminal cases, motions for mistrial are governed by Idaho Criminal Rule 29.1. A
mistrial may be declared upon motion of the defendant, when there occurs during the trial an error
or legal defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial
to the defendant and deprives the defendant of a fair trial. I.C.R. 29.1(a). Our standard for
reviewing a district court’s denial of a motion for mistrial is well established:
[T]he question on appeal is not whether the trial judge reasonably exercised his
discretion in light of circumstances existing when the mistrial motion was made.
Rather, the question must be whether the event which precipitated the motion for
mistrial represented reversible error when viewed in the context of the full record.
Thus, where a motion for mistrial has been denied in a criminal case, the “abuse of
discretion” standard is a misnomer. The standard, more accurately stated, is one of
reversible error. Our focus is upon the continuing impact on the trial of the incident
that triggered the mistrial motion. The trial judge’s refusal to declare a mistrial will
be disturbed only if that incident, viewed retrospectively, constituted reversible
error.
State v. Urquhart, 105 Idaho 92, 95, 665 P.2d 1102, 1105 (Ct. App. 1983).
III.
ANALYSIS
Lindsay asserts the district court erred in denying his motion for mistrial because the
district court’s supplemental jury instruction, given to the jury during deliberations, created a
variance and created a legal defect in the proceedings that was prejudicial to Lindsay and deprived

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him of his right to a fair trial. Idaho Code § 18-2403(1) reads: “A person steals property and
commits theft when, with the intent to deprive another of property or to appropriate the same to
himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner
thereof.” (Emphasis added.) The State only alleged that Lindsay engaged in two of the three
possible acts prohibited by the statute. Count I of the information reads:
That the defendant, SHANNON P. LINDSAY, on or about the 5th day of
February, 2019, in the County of Ada, State of Idaho, did wrongfully take and/or
obtain credit card(s) from the owner, [the victim], with the intent to deprive another
of property and/or appropriate to himself or a third person certain property of
another.
(Emphasis added.) The elements instruction the court gave the jury prior to its deliberations is
consistent with the manner in which the State alleged Mr. Lindsay committed the theft:
In order for the defendant to be guilty of Count I for Grand Theft, the State
must prove each of the following:
....
3. the defendant, Shannon Lindsay, wrongfully took and/or obtained
property, to wit: credit card(s),
4. from the owner, [the victim],
5. with the intent to deprive another of the property and/or to appropriate
the property to himself or a third person, and
6. the property was a financial transaction card.
(Emphasis added.)
After the jury began deliberations, the jury submitted a question to the court, which asked,
“If someone finds a wallet on the floor of a bathroom, and takes it, is that considered wrongfully
taking/or obtaining property[?]” The district court, without advising or consulting with the parties,
gave the jury what amounts to a new elements instruction:
A person steals property and commits theft when, with intent to deprive
another of property or to appropriate the same to himself or to a third person, he
wrongfully takes, obtains or withholds such property from an owner thereof.
Theft includes a wrongful taking, obtaining or withholding of another’s
property, with the intent; including lost property.
A person acquires lost property when he exercises control over property of
another which he knows to have been lost or mislaid, or to have been delivered
under a mistake as to the identity of the recipient or the nature or amount of the
property, without taking reasonable measures to return such property to the owner;
or a person commits theft of lost or mislaid property when he:
l. Knows or learns the identity of the owner or knows, or is aware of,
or learns of a reasonable method of identifying the owner; and
2. Fails to take reasonable measures to restore the property to the
owner; and
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3. Intends to deprive the owner permanently of the use or benefit of the
property.
(Emphasis added.) This new instruction, permitting the jury to find Lindsay guilty if it found he
“withheld” the victim’s credit card, created a variance. Lindsay was not charged with finding the
victim’s lost credit card, then withholding it by failing to take reasonable measures to restore the
credit card (and the wallet as a whole) to the victim; instead, he was charged with taking or
obtaining the credit card. It is true that the State can charge a defendant either by stating the means
in which the offense occurred or by citation to the statute. State v. Jones, 140 Idaho 755, 759, 101
P.3d 699, 703 (2004). Either option adequately places a defendant on notice of the charged
offense. Id. However, when the State omits a means of committing an offense, the court cannot
instruct on that means without considering whether doing so creates a variance or otherwise
deprives the defendant of due process. Because the jury instructions as a whole do not match the
manner of theft alleged in the information, the district court’s supplemental elements instruction
created a variance.
The district court also created a legal defect in the proceedings by failing to confer with the
parties prior to giving the jury the supplemental elements instruction. Lindsay was not given a
timely and meaningful opportunity to object prior to the district court giving the supplemental
instruction. Idaho Criminal Rule 30(b) states, “No party may assign as error the giving of or failure
to give an instruction unless the party objects thereto before the jury retires to consider its verdict,”
stating distinctly “the instruction to which the party objects and the grounds of the objection.”
(Emphasis added.) Moreover, as a practical matter, the objections Lindsay was belatedly allowed
to register could not ameliorate the error already made by the district court’s decision to instruct
the jury on a means of grand theft not alleged in the charging document,1 a decision the district

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The State has argued that Lindsay did not adequately raise a fatal variance objection and,
therefore, his variance claim must be addressed under the fundamental error standards. The State
also takes the position that, to the extent Lindsay incorporated his arguments regarding the fatal
variance issue into the mistrial motion issue, Lindsay’s objection and argument are unsupported
for the same reasons. As noted, we need not directly address the fatal variance issue, but we
disagree with the State’s characterization of Lindsay’s objection to the supplemental instructions.
Lindsay objected based on surprise, lack of notice, legal error, and a change in the supplemental
instruction in relation to the charges. Notice and opportunity are the hallmarks of due process.
Here, Lindsay was deprived of an opportunity to defend the entirety of the grand theft charged
submitted to the jury and was deprived of his right to a fair trial on the grand theft charge.

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court made without input or argument from the parties. Upon hearing Lindsay’s argument
regarding the propriety of the supplemental instruction, the district court indicated the instruction
would have been given in the first instance if it had been requested. But the point is, the instruction
had not been requested. Lindsay was given no opportunity prior to the instruction being given, to
make any objection or argument about the language of the instruction or the appropriateness of the
instruction, nor was he able to present evidence to specifically defend against committing theft by
withholding. The manner in which the district court instructed the jury in response to the jury’s
question during deliberations introduced legal error into the proceeding.
From both a procedural and substantive point of view, the error introduced by the district
court constitutes reversible error. In reviewing the denial of a motion for mistrial in a criminal
case, the appellate court focuses on the continuing impact on the trial of the incident that triggered
the mistrial motion. Urquhart, 105 Idaho at 95, 665 P.2d at 1105. The denial of a motion for
mistrial will be disturbed on appeal only if the incident giving rise to the motion, viewed
retrospectively, constituted reversible error. Id. Error is not reversible unless it is
prejudicial. State v. Stell, 162 Idaho 827, 830, 405 P.3d 612, 615 (Ct. App. 2017). In determining
whether the error that forms the basis for a motion for a mistrial is reversible, we apply the harmless
error test. State v. Smith, 170 Idaho 800, 810, 516 P.3d 1071, 1081 (2022). This standard requires
weighing the probative force of the record, as a whole, while excluding the erroneous evidence
and at the same time comparing it against the probative force of the error. Id. The State bears the
burden of demonstrating that the error is harmless beyond a reasonable doubt. Id. The reviewing
court must take into account what effect the error had or reasonably may have had on the jury (in
the context of the total setting) and in relation to all else that happened, which necessarily includes
the evidence presented. Kotteakos v. United States, 328 U.S. 750, 764 (1946).
Lindsay was entitled to rely on the charge alleged by the State, which only included taking
or obtaining the property as a means of committing the theft. Although the theft statute includes
“withholding” as a means, the State omitted the withholding means from the charging document.
The district court’s supplemental elements instruction effectively amended the charge after the
jury had initially been correctly instructed and discharged to deliberate. Contrary to the statements
made by the district court in response to Lindsay’s objection and the arguments of the State,
Lindsay was not on notice that he would have to defend against a factual and legal allegation of
theft by withholding. The additional element to the jury instruction--“[f]ails to take reasonable

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measures to restore the property to the owner”--changes the presentation of the evidence that
Lindsay would have submitted to the jury prior to deliberations. Nor was Lindsay on notice that
the district court instructed the jury on the withholding element of theft until the instruction was
given and the jury was deliberating based on that instruction. Lindsay was prejudiced in his
defense and denied a fair trial.
More prejudicially, however, is the manner in which the variance was created. The jury
submitted a question to the court, which stated, “If someone finds a wallet on the floor of a
bathroom, and takes it, is that considered wrongfully taking/or obtaining property[?]” The
question indicates that the jury was considering the possibility that Lindsay found the victim’s
wallet containing the credit card on the floor of the bathroom at the gym, rather than stealing the
wallet from the victim’s locker. Considering the elements instruction the court initially gave--
“wrongfully taking/or obtaining property”--the jury’s question suggests the jurors were unsure
whether finding and retaining the property would constitute theft. The district court essentially
answered the jury’s question definitively when it submitted the uncharged “withholding” means
of finding guilt. The variance created by the supplemental elements instruction had a direct and
continuing impact on the trial.
Therefore, the district court erred in denying Lindsay’s motion for mistrial. This error
requires vacating both the conviction for theft as well as the conviction for burglary. The improper
instruction to the jury directly related to the theft charge. Although the burglary charge involved
a separate act, we cannot say that the district court’s error did not also taint the jury’s decision on
the burglary charge. For these reasons, we reverse the district court’s denial of Lindsay’s motion
for mistrial and vacate the judgment of conviction for theft and burglary.2
IV.
CONCLUSION
The district court erred in denying Lindsay’s motion for mistrial. Accordingly, Lindsay’s
judgment of conviction for grand theft and burglary is vacated.
Judge HUSKEY and Judge LORELLO CONCUR.

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Consequently, we need not address Lindsay’s claims of evidentiary error.
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