State v. Burns

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 49639

STATE OF IDAHO, )
) Filed: March 14, 2023
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
MARVIN SAMUEL BURNS, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. Benjamin J. Cluff, District Judge. Hon. David C. Epis,
Magistrate.

Decision of the district court on intermediate appeal affirming judgment of
conviction for driving under the influence, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; Kale D. Gans, Deputy Attorney General,
Boise, for respondent.
________________________________________________

GRATTON, Judge
Marvin Samuel Burns appeals from his judgment of conviction for driving under the
influence (excessive), Idaho Code § 18-8004. Burns argues the magistrate court erred when it
denied his request to instruct the jury on the necessity defense and, on intermediate appeal, the
district court erred when it affirmed Burns’ conviction based on its conclusion that no reasonable
view of the evidence supported Burns’ necessity theory. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The State charged Burns with driving under the influence (excessive). Burns, his son,
Dylan, and his daughter, Samantha, all testified at trial. Burns, Dylan, and Samantha attended a

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family barbecue. Both Burns and Dylan were drinking heavily while Samantha did not drink any
alcohol. Dylan acknowledged that he possessed two knives while at the party. Samantha left the
party around 10:00 p.m. Dylan testified he and Burns argued for an extended period. Dylan
admitted he threated Burns, saying he could beat him up and could probably kill him. Dylan
denied holding a knife at any point during the argument. Burns testified he did not recall seeing a
knife during their argument; yet, he had a “clean slice” on his thumb and did not recall how it
happened.
Burns and Dylan eventually separated; Dylan went inside the house and Burns sat in his
vehicle. Burns called Samantha asking her to pick him up, and she arrived after 11:00 p.m. Burns
also called 911 for assistance. Upon arrival, Samantha observed Burns in his vehicle and Dylan
in the house. Samantha saw a fresh cut on Burns’ hand but did not know how it occurred. She
denied seeing Dylan with a knife when she went into the house to get Burns’ phone from Dylan.
Samantha could not acquire Burns’ phone so she went back outside to Burns’ vehicle.
Samantha and Burns decided Burns would drive his vehicle to the trailer park office and park it
there because he was worried for the safety of himself and his vehicle. Burns decided Samantha
would follow him in her own car, and then she would drive Burns to her house from the trailer
park office. Burns testified that when he saw Dylan come out of the house, cross the yard, and
walk through the gate, he drove off because he was fearful Dylan may harm him, although he could
not recall a specific threat at that time.
Officer Guzman testified that when he first observed Burns’ vehicle, the vehicle was
“reversing . . . back into the driveway of the trailer park.” An investigation ensued and Officer
Guzman deduced Burns was intoxicated. Eventually, Burns was arrested and taken to jail where
a blood draw revealed that Burns’ blood alcohol level was .207.
The magistrate court and counsel discussed proposed jury instructions after presentation of
the evidence at trial. Burns’ counsel objected to the magistrate court’s refusal to instruct the jury
on the necessity defense. The jury found Burns guilty of driving under the influence (excessive).
On intermediate appeal to the district court, Burns argued the magistrate court erred by not
instructing the jury on the necessity defense and that the conviction should be set aside under Idaho
Criminal Rule 29. The district court affirmed the magistrate court. Burns timely appeals.

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II.
STANDARD OF REVIEW
For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate court, we review the record to determine whether there is substantial and competent
evidence to support the magistrate court’s findings of fact and whether the magistrate court’s
conclusions of law follow from those findings. State v. Korn, 148 Idaho 413, 415, 224 P.3d 480,
482 (2009). However, as a matter of appellate procedure, our disposition of the appeal will affirm
or reverse the decision of the district court. State v. Trusdall, 155 Idaho 965, 968, 318 P.3d 955,
958 (Ct. App. 2014). Thus, we review the magistrate court’s findings and conclusions, whether
the district court affirmed or reversed the magistrate court and the basis therefore, and either affirm
or reverse the district court.
“A motion for a jury instruction is judged by whether there is a reasonable view of the
evidence that supports the requested instruction. This Court reviews the district court’s decision
for abuse of discretion.” State v. Meyer, 161 Idaho 631, 634, 389 P.3d 176, 179 (2017). When a
trial court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi-
tiered inquiry to determine whether the trial court: (1) correctly perceived the issue as one of
discretion; (2) acted within the boundaries of such discretion; (3) acted consistently with any legal
standards applicable to the specific choices before it; and (4) reached its decision by an exercise
of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).
III.
ANALYSIS
Burns argues that the magistrate court abused its discretion when it concluded that there
was no reasonable view of the evidence presented in this case sufficient to support a necessity
instruction, and that the district court erred in affirming the magistrate court’s decision.1
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. Therefore, 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

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Burns did not raise his Idaho Criminal Rule 29 argument on appeal to this Court.
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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).
Although each party is entitled to request the delivery of specific instructions, State v.
Severson, 147 Idaho at 694, 710, 215 P.3d at 414, 430 (2009), 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. State v. Jeske, 164 Idaho 862, 872, 436
P.3d 683, 693 (2019).
“If the requested instruction is not supported by the evidence, the court must reject the
requested instruction.” State v. Howley, 128 Idaho 874, 878, 920 P.2d 391, 395 (1996). In other
words, a defendant must present facts to support each element of a prima facie case for each
defense. State v. Garner, 159 Idaho 896, 898, 367 P.3d 720, 722 (Ct. App. 2016).
Burns asserts the magistrate court erred in failing to instruct the jury on his necessity
defense. In State v. Hastings, 118 Idaho 854, 855, 801 P.2d 563, 564 (1990), the Idaho Supreme
Court set forth the elements of the necessity defense:
1. A specific threat of immediate harm;
2. The circumstances which necessitate the illegal act must not have been
brought about by the defendant;
3. The same objective could not have been accomplished by a less offensive
alternative available to the actor; and
4. The harm caused was not disproportionate to the harm avoided.
The magistrate court found Burns failed to make a threshold showing of evidence that there was a
specific threat of immediate harm and that there was no less offensive alternative to driving under
the influence. The district court agreed.
“Mindful” of the trial evidence, particularly “mindful” of Samantha’s testimony, Burns
nonetheless argues his testimony that Dylan threatened to kill Burns and later came towards him
while he was sitting in his vehicle showed some factual support for a specific threat of immediate
harm. Burns testified he remembered being outside with Dylan when Dylan threatened, “I will
wipe you out. I could murder you. I will slice and dice you.” Burns testified he and Dylan
separated--Burns into his vehicle and Dylan into the house. When Samantha arrived, she saw
Dylan in the doorway of the house and Burns in his vehicle. Samantha interacted with Dylan
inside the house. Afterwards, Samantha and Burns created a plan to drive his car to the trailer park
office, and then she would take him to her home. Samantha testified Burns was crying and

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shaking; she had never seen her dad that scared before. As Samantha and Burns were about to
drive away, Burns testified, “[a]nd then when he came back outside, that’s when I drove off,
because I wasn’t going to confront or attack or anything. I needed to get away.” However, Burns
also testified on cross-examination that he did not hear Dylan say anything and did not know what
Dylan was doing as he crossed the yard and opened the gate. Burns explained he did not stick
around to find out.
The magistrate court correctly found that there was no reasonable view of the evidence that
would suggest there was a specific threat of immediate harm to Burns. The necessity defense is
limited to prevention of harm that is reasonably perceived as an immediate danger. It may not be
used to justify illegal acts taken to foreclose speculative, debatable, or long-term risks. A mere
possibility of harm that may occur sometime in the future is insufficient. State v. Chisholm, 126
Idaho 319, 322, 882 P.2d 974, 977 (Ct. App. 1994). Although Burns was distraught by the prior
interactions, there is no evidence of a specific threat to Burns as Dylan walked to the gate. Burns
suggests the specific threat is implied from the prior death threats; however, Burns’ and Dylan’s
separation ended the specific threat of immediate harm. At the time Burns chose to drive his
vehicle while intoxicated, he admitted he was not aware of a threat from Dylan and he did not
know Dylan’s intentions. Therefore, he was, at best, speculating whether Dylan was going to act
upon his past threats towards Burns. Accordingly, there is no reasonable view of the evidence that
would suggest a specific threat of immediate harm occurred at the time Burns drove his vehicle
while intoxicated.2
Furthermore, the necessity defense is only available when the same objective could not
have been accomplished by a less offensive alternative available to the actor. Hastings, 118 Idaho
at 855, 801 P.2d at 564. Burns contends his driving while intoxicated without incident was less
offensive than Dylan’s threats which, if acted upon, would have resulted in possible murder,
aggravated battery, or aggravated assault. Burns misconstrues the proper analysis. We focus on
whether Burns’ object--to get away from Dylan--could have been accomplished through less
offensive means than driving while intoxicated.

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Burns testified to a concern for his vehicle--which is why he decided to move it. Yet, Burns
failed to show evidence of a threat to his vehicle. In this appeal, Burns does not meaningfully
advance a concern for his vehicle as a justification for a necessity defense. Therefore, we reject
any implication that the necessity defense should have been provided to the jury due to Burns’
purported need to protect his vehicle.
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As the district court noted, there is undisputed evidence that there was a less offensive
alternative available. Burns could have walked away. Burns could have sought out the assistance
of a neighbor. Most importantly, instead of driving his vehicle, Burns could have rode with
Samantha in her car to separate himself from Dylan. The following testimony from Samantha was
unchallenged by Burns:
PROSECUTOR: Okay. And if your dad had asked you to give him a ride
that day, you would have given him a ride?
SAMANTHA: Yes, that was the plan. He wanted to remove his pickup and
himself from the situation because he was scared, so we
were going to move his pickup so he did not have to worry
about his pickup, and he was getting in my vehicle and he
was going home with me.
As such, there is no reasonable view of the evidence presented that would support Burns had no
less offensive alternative than driving while intoxicated to protect himself from Dylan’s threats.
Therefore, the magistrate court did not abuse its discretion in denying Burns’ request for a
necessity defense instruction, and the district court did not err in affirming that decision.
IV.
CONCLUSION
The magistrate court correctly concluded there was no reasonable view of the evidence to
support Burns’ request for a necessity defense instruction. Accordingly, we affirm the district
court’s decision on intermediate appeal affirming Burn’s judgment of conviction. Therefore,
Burns’ judgment of conviction is affirmed.
Chief Judge LORELLO and Judge BRAILSFORD CONCUR.

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