State v. Sabina Hallam

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket Nos. 43035 & 43737
STATE OF IDAHO, ) 2016 Unpublished Opinion No. 774
)
Plaintiff-Respondent, ) Filed: November 9, 2016
)
v. ) Stephen W. Kenyon, Clerk
)
SABINA HALLAM, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Third Judicial District, State of Idaho,
Owyhee County. Hon. Christopher S. Nye, District Judge.
Judgment of conviction and sentence, affirmed; final order of restitution,
affirmed.
Eric D. Fredericksen, Interim State Appellate Public Defender; Justin M. Curtis,
Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
General, Boise, for respondent.
________________________________________________
HUSKEY, Judge
Sabina Hallam appeals from her judgment of conviction entered upon her guilty plea to
one count of grand theft by unauthorized control. Hallam argues the district court abused its
discretion in retaining jurisdiction. Hallam also appeals the district court’s order awarding
restitution, arguing the restitution award is not supported by substantial evidence. Because
Hallam’s claim that the district court abused its discretion in retaining jurisdiction is moot and
because Hallam did not object to the calculation method for the restitution award, we hold that
the restitution award was based on substantial evidence. We affirm Hallam’s judgment of
conviction and sentence, and the restitution order for $30,787.
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I.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2011, an elderly woman with Parkinson’s disease hired Hallam to help with
“bill paying, shopping, transportation for doctor visits, and any other needs that required driving
or a steady hand.” Hallam was allowed to use the employer’s credit cards to make purchases for
the employer’s family needs. The employer also authorized Hallam’s personal use of the credit
cards “only for an emergency when [Hallam] had gone on vacation.” From February 2011 to
June 2012, Hallam used the employer’s credit cards to make numerous unauthorized purchases.
Hallam admitted that her “personal use was around two to three thousand” dollars. However, an
investigation by law enforcement concluded Hallam’s unauthorized credit card use was between
$34,087 and $38,167.
The State charged Hallam with five counts of felony grand theft by unauthorized control,
Idaho Code §§ 18-2403(3), 18-2407(1)(b). Hallam pleaded guilty to one count of felony grand
theft by unauthorized control and the remaining four counts were dismissed. At the sentencing
hearing, Hallam asked a witness questions regarding restitution, and the State objected stating
“[t]his is not a restitution hearing. This is a sentencing hearing. And some of these materials I
have issue with respect to the restitution and we would intend to call probably three witnesses on
these very issues.” Hallam informed the court:
[t]here’s a PSI report that’s looking at an investigation and its stating that
Ms. Hallam is minimizing the amount that is owed. We’re disputing that. We
want to get that before the Court at sentencing before a restitution hearing, Judge.
I don’t plan on asking--going over every item by any means like a restitution
hearing. We just want to get it before the Court that we strongly dispute what the
amount is and that Ms. Hallam minimized the amount.
Hallam’s trial counsel did not, however, explain why Hallam objected to the amount of
restitution. The district court informed Hallam a restitution order would follow, but allowed
Hallam latitude in questioning the witness. The district court imposed a unified sentence of five
years, with three years fixed, and the court retained jurisdiction. The district court awarded
$34,087 in restitution. Although the Register of Actions indicates Hallam filed a timely
objection to the restitution order, no such objection is part of the record on appeal. The
restitution hearing was delayed until after Hallam completed the period of retained jurisdiction.
After successfully completing the period of retained jurisdiction, Hallam was placed on
probation for four years. The district court held a restitution hearing where it considered the
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prosecutor’s affidavit of restitution and testimony of the State’s two witnesses. The first witness,
the employer’s friend and an experienced bookkeeper, testified a review of the employer’s
financial records revealed considerable expenditures had been made on items of merchandise the
employer at no time received or retained. The witness estimated Hallam made unauthorized
purchases amounting to over $35,000.
The second witness, an Owyhee County Sheriff’s Office reserve deputy and former CPA,
testified regarding his investigation. Before the State began direct examination of the deputy,
Hallam’s trial counsel stipulated to the admission of the 2012 U.S. Bureau of Labor Statistics
consumer expenditure report and did not object to the admission of two documents created by
the deputy: (1) an excel spreadsheet showing expenditures he believed were inappropriate; and
(2) a restitution memo. The restitution memo explained the unauthorized charges spanning a
seventeen-month period and computed the amount of restitution due to the employer as follows:
Low High
Category One Costs (identifiable goods) $21,701 $21,701
Category Two Costs (food and sundries) $12,386 $16,466
TOTAL $34,087 $38,167
LESS GAS $3,300 $3,300
AMENDED TOTAL: $30,787 $34,867
The restitution memorandum categorized the unauthorized charges into two categories.
The first category consisted of $21,701 of identified purchases, which were “specific items
identified as not for the [employer].” To determine the amount of the first category, the deputy
used credit card statements and merchants’ receipts to locate expenditures. To determine which
expenditures were unauthorized, he reviewed all receipts and made note of any significant
purchases. He next discussed the list of significant expenditures with the employer who verified
whether each purchase was authorized. While the deputy sought the employer’s opinion
concerning a majority of the identifiable charges, he testified that for a minority of the charges,
he independently determined whether the charges were made with the employer’s authorization.
To determine the amount of the second category, food and sundry items, the deputy
subtracted $21,701 (first category charges) from $49,194 (total charges), for a resulting amount
of $27,493. The deputy determined how much of the $27,493 was validly charged for the
employer based on interviews with the victim, his personal opinion, and food expenditure
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statistics found in the 2012 U.S. Bureau of Labor Statistics consumer expenditure report. The
bureau determined the average annual expenditure for food for a family unit of two and one-half
people during 2011 and 2012 amounted to $3,380. This would convert to $3,104 for two people,
approximately $260 per month. The deputy also testified:
[The bureau of labor statistics report] also identified a factor which they called
“food away from home,” that is eating out, that sort of thing, which they said a
family of two would be $120 a month. Since [the employer and her father] didn’t
go out to eat, I tried to adjust that back to what the appropriate amount had they
eaten at home would be . . . so I’ve added $70 for what I’ll call “food at home.”
Further, to determine the amount of sundries per month attributable to the employer, the deputy
testified:
I made my own estimate just because of how I live with my wife, the two [of] us,
that somewhere near $100 a month might be appropriate for sundries, toilet paper,
toothpaste, blah-blah. And then I added in just a cushion for anything I might
have missed or not thought about. So I ended up with a figure of $480 per month
for food and sundries.
Hallam’s trial counsel did not object to the testimony of any of the State’s witnesses, the
method by which the restitution categories were calculated, or that the restitution amount was not
based on substantial evidence. Hallam’s only witness was a person who cooked and cleaned
house for the employer between April 2011 and July 2012. The witness testified she would help
Hallam unload groceries and that it was not unusual for the employer to keep beer in the
refrigerator for one particular guest. The district court found:
[t]he evidence produced at the restitution hearing met the State’s burden of proof
[of] a preponderance of evidence. The defendant offered little to contradict the
State’s evidence. Therefore, the Court finds that the amount sought by the State,
reflecting the adjustment that [the deputy] made during his testimony, is
reasonable and fairly reflects the economic loss of the victim in this case.
After the hearing, the district court entered its final order of restitution and ordered $30,787 in
restitution. Hallam timely appeals from the final order of restitution.
II.
STANDARD OF REVIEW
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
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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).
III.
ANALYSIS
A. Hallam’s Argument That the District Court Abused Its Discretion in Retaining
Jurisdiction Is Moot
Hallam argues the district court abused its discretion by retaining jurisdiction because
Hallam presented mitigating circumstances that warranted placing her on probation. Hallam
admitted she exceeded the scope of her employment agreement with her employer, expressed
remorse for her actions, and admitted she owed her employer money. The State argues Hallam’s
challenge to retained jurisdiction is moot because she is currently on probation.
Under the mootness doctrine:
This Court may dismiss an appeal when it appears that the case involves only a
moot question. A case becomes moot when the issues presented are no longer
live or the parties lack a legally cognizable interest in the outcome. A case is
moot if it presents no justiciable controversy and a judicial determination will
have no practical effect upon the outcome.
State v. Manzanares, 152 Idaho 410, 419, 272 P.3d 382, 391 (2012) (quoting Goodson v. Nez
Perce Cnty. Bd. of Cnty. Comm’rs, 133 Idaho 851, 853, 993 P.2d 614, 616 (2000)). See also
State v. Manley, 142 Idaho 338, 343, 127 P.3d 954, 959 (2005). Here, Hallam’s appeal is moot
because her period of retained jurisdiction has ended and she was placed on probation. The issue
presented is no longer live because Hallam has already received the only remedy she requests.
Even assuming that Hallam should have received a suspended sentence with probation at the
time of sentencing, such a determination from this Court would have no practical effect upon the
outcome. Hallam does not argue that any exception to the mootness doctrine applies here.
Therefore, Hallam’s claim that the district court abused its discretion in retaining jurisdiction is
moot.1
B. Hallam’s Argument That Restitution Was Not Support by Substantial Evidence Is
Not Preserved on Appeal
On appeal, Hallam argues the district court abused its discretion in awarding restitution
because the restitution award was not supported by substantial evidence. Hallam argues the
1
To the extent Hallam asserts that the length of her probation is excessive, she has shown
no abuse of discretion.
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award of $21,701 for identifiable purchases is not supported by substantial evidence because the
State did not submit any receipts for the unauthorized purchases, did not provide evidence of the
specific amount for any purchases, and did not provide an individual accounting of the purchases
in the record. As such, the amount of restitution was “simply a review of what [the deputy]
believed to be unauthorized purchases.” Hallam also asserts the award of $12,386 for food and
sundries is not supported by substantial evidence and is speculative under State v. Straub, 153
Idaho 882, 292 P.3d 273 (2013) because it is unknown whether the employer actually suffered
the average amount determined by the U.S. Bureau of Labor Statistics. Even if the bureau’s
statistical model is appropriate, Hallam asserts the deputy’s figure of $70 a month for food away
from home, his determination of $100 a month for sundries, and his determination of $50 a
month for minor items are speculative and not supported by substantial evidence. The State
argues Straub is inapplicable because the expenses in this case are defined, actual, and
quantifiable, and are not speculative or forward-looking like those in Straub. Rather, the State
argues this case is more like State v. Lombard, 149 Idaho 819, 242 P.3d 189 (2010).
The threshold issue is whether Hallam preserved her argument that the restitution award
was not based on substantial evidence. Appellate court review is limited to the evidence,
theories, and arguments that were presented below. State v. Johnson, 148 Idaho 664, 670, 227
P.3d 918, 924 (2010). Issues not raised below generally may not be considered for the first time
on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). For an objection to be
preserved for appellate review, either the specific ground for the objection must be clearly stated
or the basis of the objection must be apparent from the context. State v. Sheahan, 139 Idaho 267,
277, 77 P.3d 956, 966 (2003).
The record before this Court does not contain any written objections to the restitution
amount. As noted above, the verbal objection at the sentencing hearing does not explain why
Hallam objected to the amount of restitution; counsel simply stated: “[w]e just want to get it
before the Court that we strongly dispute what the amount is and that Ms. Hallam minimized the
amount.” Without explaining the basis of the objection, it is difficult to know why Hallam
objected to the amount of restitution at the sentencing hearing. See id.At the restitution hearing, Hallam’s trial counsel stipulated to the admission of the U.S.
Bureau of Labor Statistics information and did not object to the admission of the restitution
memo, the Excel spreadsheet, or any of the testimony presented by the State, including the
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deputy’s method of calculating the amount of restitution. Furthermore, Hallam’s trial counsel
did not object to the quantum of evidence presented by the State or allege the restitution amount
was not based on substantial evidence. Although in this case, it appears that Hallam filed a
written objection to restitution, that objection was not included in the record on appeal. It is the
responsibility of the appellant to provide a sufficient record to substantiate his or her claims on
appeal. State v. Murinko, 108 Idaho 872, 873, 702 P.2d 910, 911 (Ct. App. 1985). In the
absence of an adequate record on appeal to support the appellant’s claims, we will not presume
error. State v. Beason, 119 Idaho 103, 105, 803 P.2d 1009, 1011 (Ct. App. 1991).
Because Hallam failed to provide a basis for the objection to the restitution amount,
failed to object to the method by which restitution was calculated, and failed to claim the
restitution order was not based on substantial evidence, she has failed to preserve any objection
to the amount of restitution. Therefore, we decline to set aside the restitution order in this case
and affirm the district court’s order of restitution.2
IV.
CONCLUSION
Hallam’s claim that the district court abused its discretion in retaining jurisdiction is
moot. Furthermore, because in the district court Hallam failed to provide a basis for the
objection to the restitution amount, failed to object to the method by which restitution was
calculated, and failed to raise the issue that there was not substantial evidence to support an
award of restitution, Hallam has shown no error. Thus, we affirm the district court’s judgment of
conviction and sentence and final order of restitution.
Judge GUTIERREZ and Judge GRATTON CONCUR.
2
Even if we consider the arguments advanced on appeal, Hallam has shown no abuse of
discretion. The district court relied upon the testimony of the witnesses and exhibits submitted
which amply support the award.
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