State v. Frey

Where an action is a material fact to proving whether defendant committed a crime, the court shall give the jury a "Boots instruction." That is, at minimum 10 jurors must concur that a defendant intended to commit the crime, and that he intended to commit a material fact to that crime.

After attempting to enter an apartment where his wife was located, defendant was convicted of attempted burglary. Defendant appealed his conviction on the grounds that the trial court gave an improper jury instruction. The defendant argued successfully that the trial court should have given the jury a “Boots instruction.” That is, at minimum 10 jurors must concur that a defendant intended to commit a certain crime. Moreover, the jury must agree that a defendant intended to commit all material facts in order to reach a conviction. The Court of Appeals held that the trial court erred because the crime defendant intended to commit when trying to enter the apartment had to be agreed on by all jurors, since it was a material fact, and no jury instruction was given to this effect. Reversed and remanded.