State v. Denise Frances Nesbitt

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 43911
STATE OF IDAHO, ) 2016 Unpublished Opinion No. 743
)
Plaintiff-Respondent, ) Filed: October 21, 2016
)
v. ) Stephen W. Kenyon, Clerk
)
DENISE FRANCES NESBITT, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Cynthia K. C. Meyer, District Judge.
Order granting restitution, affirmed.
Eric D. Fredericksen, Interim State Appellate Public Defender; Andrea W.
Reynolds, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
General, Boise, for respondent.
________________________________________________
GRATTON, Judge
Denise Frances Nesbitt appeals from the district court’s order granting restitution. We
affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Gloria Buck hired Nesbitt to help Buck take care of her disabled daughter, Holly. Buck
noticed several items of jewelry were missing from her bedroom after she hired Nesbitt. Buck
reported the missing items of jewelry to the police and filed a claim with her insurance carrier.
The police located pawn shop records indicating that Nesbitt had pawned several items of
jewelry matching the description of the items Buck had reported missing. Nesbitt said Holly had
asked Nesbitt to pawn those items of jewelry. Holly denied asking Nesbitt to pawn any items of
jewelry. Buck’s insurance had a policy limit of $5,000 and a $2,500 deductible. After Buck met
the $2,500 deductible, her insurance carrier paid her $2,597.28 for the missing jewelry.
1
The State charged Nesbitt with grand theft, alleging that between January 1, 2014, and
July 31, 2014, Nesbitt wrongfully took “jewelry, of a value in excess of one thousand dollars
($1,000.00).” In exchange for Nesbitt’s Alford1 plea to the grand theft charge and promise to pay
restitution, the State agreed not to file additional charges and would recommend a withheld
judgment. At arraignment, Nesbitt agreed to pay restitution and entered her Alford plea,
indicating that she believed “there would be enough evidence that a jury would be able to find
her guilty in this case.” Nesbitt did not specify that she was only agreeing to pay restitution for
certain items of jewelry or that her plea was based on evidence that she stole any particular items
of jewelry.
The State requested that Nesbitt pay $2,597 to Buck’s insurance carrier and $8,718 to
Buck in restitution for all missing items of jewelry, and Nesbitt objected. At sentencing, Nesbitt
requested a restitution hearing, arguing that she should only have to pay restitution for items the
State could show she pawned. The district court sentenced Nesbitt to a unified term of five years
with two years determinate but suspended her sentence in favor of three years of probation. The
court scheduled a restitution hearing and retained jurisdiction to determine the amount of
Nesbitt’s restitution.
At the restitution hearing, Buck testified regarding the purchase price and description of
the missing items of jewelry. The State introduced pawn shop records as exhibits supporting its
restitution claim. Buck confirmed that the description in some of the pawn shop records matched
the description of some of her missing items of jewelry. Nesbitt argued the State had not
established the market value of the missing items of jewelry, and the State’s exhibits did not
adequately link her to some of the missing items of jewelry. Nesbitt again argued that she should
only have to pay restitution for items the State could show she pawned.
In a written decision, the district court ordered Nesbitt to pay $2,597.28 to Buck’s
insurance carrier and $5,150.52 to Buck in restitution for all of her items of missing jewelry.
Nesbitt timely appeals.
1
See North Carolina v. Alford, 400 U.S. 25 (1970).
2
II.
ANALYSIS
Nesbitt argues the items of jewelry in the district court’s restitution award were not
within the scope of the offense to which she pled guilty or agreed to pay restitution. She also
argues the district court abused its discretion in determining the amount of restitution.
A. Scope of the Restitution Award
Nesbitt argues items of jewelry in the district court’s restitution award were not within
the scope of the offense to which she pled guilty. According to Nesbitt, the information did not
specifically identify all the items of jewelry she allegedly stole from Buck, and she only admitted
to taking a few items of Buck’s jewelry. Thus, Nesbitt argues she cannot be ordered to pay
restitution for items of jewelry she was not specifically charged with stealing and did not admit
to taking. Further, Nesbitt argues she cannot be ordered to pay restitution for items not
specifically identified in the information because those items were not adjudicated or before the
court, and she never agreed to pay for those items.
Idaho Code § 19-5304(2) authorizes a sentencing court to order a defendant to pay
restitution for economic loss to the victim of a crime. The decision of whether to order
restitution, and in what amount, is within the discretion of a trial court, guided by consideration
of the factors set forth in I.C. § 19-5304(7) and by the policy favoring full compensation to crime
victims who suffer economic loss. State v. Richmond, 137 Idaho 35, 37, 43 P.3d 794, 796 (Ct.
App. 2002); State v. Bybee, 115 Idaho 541, 543, 768 P.2d 804, 806 (Ct. App. 1989).
Restitution, however, may be ordered only for actual economic loss suffered by a victim, unless
the parties consent to a broader restitution order. I.C. § 19-5304(1)(a), (2), (9). The term
“‘[e]conomic loss’ includes, but is not limited to, the value of property taken, destroyed, broken,
or otherwise harmed . . . resulting from the criminal conduct . . . .” I.C. § 19-5304(1)(a).
Victims include persons who suffer “economic loss or injury as the result of the defendant’s
criminal conduct . . . .” I.C. § 19-5304(1)(e)(i). “Thus, there must be a causal connection
between the conduct for which the defendant is convicted and the damages the victim suffers.”
State v. Schultz, 148 Idaho 884, 886, 231 P.3d 529, 531 (Ct. App. 2008).
In Schultz, the State charged the defendant with “grand theft by exercising unauthorized
control and/or making unauthorized transfers [on the victim’s] credit card accounts and/or bank
accounts in an amount exceeding $1,000 between October 2003, and May 2004.” Id. At trial,
3
the State presented evidence showing the defendant made unauthorized transactions on the
victim’s bank card. Id. at 885, 231 P.3d at 530. The jury found the defendant guilty. Id. At the
restitution hearing, “the state sought, and was awarded, restitution for additional unauthorized
individual transactions.” Id. On appeal, the defendant argued the additional unauthorized
transactions were not within the scope of the crime for which she was convicted. Id. at 885-86,
231 P.3d at 530-31. This Court affirmed the restitution award, holding the additional
unauthorized transactions were within the scope of the crime for which the defendant was
convicted because the transactions fit within the same time frame and criminal theory charged in
the information and the information did not charge the defendant with theft of a specific amount
of money. Id. at 886-87, 231 P.3d at 531-32.
In this case, the State charged Nesbitt with grand theft by wrongfully taking “jewelry, of
a value in excess of one thousand dollars ($1,000.00)” between January 1, 2014, and July 31,
2014. Like the information in Schultz that did not charge the defendant with theft of a specific
amount of money, the information here did not charge Nesbitt with theft of a specific amount of
jewelry. Further, similar to the additional unauthorized transactions in Schultz, the additional
missing items of jewelry here fit within the same time frame and criminal theory charged in the
information. Thus, the additional missing items of jewelry here were within the scope of the
crime for which Nesbitt was convicted and the district court properly awarded restitution for
them.2
2
In Schultz, this Court noted that the defendant had made “no challenge to the sufficiency
of the state’s proof at the restitution hearing.” State v. Schultz, 148 Idaho 884, 887, 231 P.3d
529, 532 (Ct. App. 2008). Thus, Nesbitt asserts Schultz is inapposite because she “has always
denied that she took any items of jewelry from Ms. Buck beyond those” she admitted to taking
and the State never proved she took any additional items from Buck.
Nesbitt’s challenge to the sufficiency of the State’s proof does not mean there was not
sufficient evidence that she took the additional items from Buck. Nesbitt pled guilty to grand
theft. By its plain terms, the information that charged her with grand theft was broad enough to
include all of Buck’s missing items of jewelry. Moreover, Holly and Gloria Buck denied
Nesbitt’s version of the events and Gloria Buck credibly testified about all of the missing items
of jewelry and Nesbitt’s connection to their disappearance. Finally, pawn shop records tied
Nesbitt to several of the most expensive items of missing jewelry. Thus, we cannot say there
was insufficient evidence of a causal connection between Nesbitt and the additional missing
items of jewelry.
4
If Nesbitt wanted to limit the scope of her crime or the items for which she would pay
restitution, it was incumbent for her to do so in her plea agreement or at arraignment.3 When a
plea is offered pursuant to a plea agreement, “the court shall, on the record, require the disclosure
of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is
offered.” Idaho Criminal Rule 11(f)(2). This disclosure is necessary for the trial judge to
properly administer the plea agreement. State v. Hurles, 158 Idaho 569, 573, 349 P.3d 423, 427
(2015). Because appellate courts can know only what is revealed on the record, it is incumbent
upon the respective attorneys to clearly and unambiguously state the entire plea agreement on the
record. Id. Plea agreements are contractual in nature and are generally examined by courts in
accordance with contract law standards. State v. Nienburg, 153 Idaho 491, 496, 283 P.3d 808,
813 (Ct. App. 2012). As with other contracts, provisions of plea agreements are occasionally
ambiguous. Id. Whether a plea agreement is ambiguous is a question of law over which we
exercise free review. Id.
In this case, the information to which Nesbitt pled guilty charged her with wrongfully
taking “jewelry, of a value in excess of one thousand dollars ($1,000.00).” As worded, the
information unambiguously referred to items of Buck’s missing jewelry with an aggregate value
of more than $1,000. Nothing in the plea agreement4 or at arraignment5 limited Nesbitt’s crime
or restitution obligation to only those items of jewelry she admitted to taking. In the absence of
evidence showing such a limitation in the plea agreement or at arraignment, we hold the district
court’s restitution award for claimed items of Buck’s missing jewelry was appropriate.
3
While Nesbitt’s Alford plea allowed her to plead guilty to grand theft without actually
admitting guilt, it did not limit the scope of her crime. If Nesbitt wanted to limit the scope of her
crime, she needed to do so specifically in her plea agreement or at arraignment.
4
The only term of the plea agreement regarding restitution reads: “Pay restitution.”
5
Nesbitt’s attorney did clarify the factual basis for the grand theft charge at arraignment,
stating: “[B]etween January to October of 2014, there’s allegations by an individual named
Gloria Buck that while my client was a caregiver in her house that my client wrongfully removed
jewelry from the house, including rings, necklace, and I believe a bracelet from the residence.”
Although this statement lists some of the items of jewelry Buck accused Nesbitt of taking, it does
not limit Nesbitt’s crime or restitution obligation to only those items of jewelry she admitted to
taking.
5
B. Abuse of Discretion
Nesbitt argues the district court abused its discretion in determining the amount of the
restitution award. We will not overturn an order of restitution unless an abuse of discretion is
shown. Richmond, 137 Idaho at 37, 43 P.3d at 796. When a trial court’s discretionary decision
is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether
the lower court correctly perceived the issue as one of discretion, acted within the boundaries of
such discretion and consistently with any legal standards applicable to the specific choices before
it, and reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768
P.2d 1331, 1333 (1989). To meet the second and third requirements of this analysis, the trial
court must base the amount of restitution upon the preponderance of evidence submitted by the
prosecutor, defendant, victim, or presentence investigator. I.C. § 19-5304(6); State v. Lombard,
149 Idaho 819, 822, 242 P.3d 189, 192 (Ct. App. 2010).
The determination of the amount of restitution is a question of fact for the trial court.
State v. Corbus, 150 Idaho 599, 602, 249 P.3d 398, 401 (2011); State v. Hamilton, 129 Idaho
938, 943, 935 P.2d 201, 206 (Ct. App. 1997). The district court’s factual findings with regard to
restitution will not be disturbed on appeal if supported by substantial evidence. Corbus, 150
Idaho at 602, 249 P.3d at 401; Lombard, 149 Idaho at 822, 242 P.3d at 192. Substantial evidence
is such relevant evidence as a reasonable mind might accept to support a conclusion. State v.
Straub, 153 Idaho 882, 885, 292 P.3d 273, 276 (2013).
Specifically, Nesbitt argues the district court abused its discretion in determining the
amount of restitution because the State did not prove the market value or replacement cost of the
missing items of jewelry by a preponderance of the evidence.6 At the restitution hearing, Buck
testified regarding the purchase price of the missing items of jewelry. The State did not
introduce evidence of the market value or replacement cost of the items. Thus, Nesbitt asserts
the court abused its discretion in determining the amount of restitution without sufficient
evidence of the market value or replacement cost of the missing items of jewelry.
After reducing the amount of its award for some items of jewelry, based on their altered
condition and depreciation, the district court noted that several of the items had likely
6
In the context of restitution, “value means the market value of the property at the time
and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of
the property within a reasonable time after the crime.” Idaho Code § 18-2402(11)(a).
6
appreciated in value since their purchase. However, the court refused to increase the amount of
its award for those items absent evidence of their appreciation. The court then stated:
There is no competent evidence to support an award that would represent current
market value, but the Court determines that the purchase price of the fine jewelry
is sufficient to meet the State’s burden of proving value by a preponderance of the
evidence. It is notable that the jewelry is more than twenty to more than forty
years old, and that while [Nesbitt] was quite insistent that only the current market
value as established by an expert would satisfy the State’s burden of proof,
[Nesbitt] cannot argue that an award based on the much lower purchase price of
the fine jewelry would prejudice [her].
Based on the credibility of [Buck] and the foregoing considerations, the Court
determines that [$7,747.80 is] a fair representation of the market value to the
victim of the property stolen by [Nesbitt].
We hold that substantial evidence supported the district court’s determination of the
amount of restitution. Despite the likely appreciation of several of Buck’s missing items of
jewelry, the court awarded restitution based on the decades-older purchase price of the jewelry
and reduced the amount of its award for some items of jewelry. The court based its award on the
evidence presented, recognized the lacking evidence of market value and replacement cost, and
adjusted its award in favor of Nesbitt. Nesbitt does not dispute that several items of Buck’s
missing jewelry had likely appreciated in value and cannot show she was prejudiced by the
court’s decision.7 Accordingly, we cannot say the district court abused its discretion in
determining the amount of restitution.
7
For the first time in her reply brief, Nesbitt argues there was no evidence presented at the
restitution hearing to support the district court’s valuation of one piece of jewelry: a gold feather
pin. Nesbitt did not make this argument in her opening brief. Rather, she primarily argued that
the district court’s valuation methodology was an abuse of discretion. A reviewing court looks
to the initial brief on appeal for the issues presented on appeal. Hernandez v. State, 127 Idaho
685, 687, 905 P.2d 86, 88 (1995); State v. Raudebaugh, 124 Idaho 758, 763, 864 P.2d 596, 601
(1993). Consequently, “this Court will not consider arguments raised for the first time in the
appellant’s reply brief.” Myers v. Workmen’s Auto Ins. Co., 140 Idaho 495, 508, 95 P.3d 977,
990 (2004). However, having reviewed the evidence in the record, including the exhibits
presented at the restitution hearing, we conclude there was sufficient evidence to support the
district court’s valuation of the gold feather pin.
7
III.
CONCLUSION
All items of jewelry in the district court’s restitution award were within the scope of the
offense to which Nesbitt pled guilty and the court did not abuse its discretion in determining the
amount of her restitution. Accordingly, the district court’s order granting restitution is affirmed.
Chief Judge MELANSON and Judge HUSKEY CONCUR.
8