State v. Dempsey
| Decision Date | 02 July 2021 |
| Docket Number | Docket No. 48594 |
| Citation | 169 Idaho 19,490 P.3d 19 |
| Court | Idaho Supreme Court |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Marissa Shannel DEMPSEY, Defendant-Appellant. |
Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant. Sally Cooley argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Mark Olson argued.
In 2018, Marissa Shannel Dempsey was convicted by a jury of several counts of burglary, grand theft, and petit theft, after which the district court entered an order requiring Dempsey to pay restitution to the victims of the crimes. Dempsey appeals on three grounds. First, she argues that her conviction on one count of grand theft must be reduced to petit theft because conviction for grand theft required the State to prove the stolen property was worth more than $1,000, which she alleges the State failed to do. Second, Dempsey argues that the prosecuting attorney committed prosecutorial misconduct by making several improper statements during closing arguments that constituted fundamental error, thereby entitling her to a new trial. Finally, Dempsey argues that the district court erred in ordering restitution for several items stolen from the victims. With regard to certain jewelry, electronics, coin collections, and other property, Dempsey contends the district court erred because the State failed to present substantial evidence to establish the market value of the property at the time of the crime. Regarding restitution for the cost to replace a stock certificate and three certified marriage certificates, Dempsey argues the district court erred because the victim had not actually incurred the cost of replacing the documents before sentencing. As set forth below, we affirm the judgment of conviction on all counts, but reverse the award of restitution in part.
After a string of home break-ins in Elmore County in the spring of 2017, Dempsey was charged by information with eight counts of burglary, five counts of grand theft, and three counts of petit theft. Dempsey was tried on the charges over four days in June 2018.
The State's evidence against Dempsey included testimony from three witnesses who had seen Dempsey near the scene of the burglaries and later identified her in a photo lineup; evidence that some of the victims’ property was found in Dempsey's car and a storage unit rented in her name; text messages indicating Dempsey had been in Elmore County on the day of several burglaries, despite her claim she had been in Boise; and evidence that Dempsey searched the internet for information about jewelry, locations of coin counting machines, and where to sell precious metals in Nampa and Boise on the same day she was alleged to have stolen jewelry, coins, and precious metals.
Further, in connection with the various counts of theft, victims testified about the property Dempsey was alleged to have stolen. Relevant on appeal, count XII of the information alleged Dempsey committed grand theft by taking property from the home of Joann Colwell, and Colwell testified that the missing property included jewelry, a jewelry box, family mementos, and a porcelain bowl. When asked by the State if she knew the value of the jewelry and mementos, Colwell initially responded, "[t]o me, priceless," but went on to testify, "6 to 10,000 [dollars] perhaps, I don't know." No further testimony was elicited from Colwell about the value of her stolen property during trial, though a list of Colwell's property recovered from Dempsey's storage unit was admitted as State's Exhibit 19.
Certain statements by the prosecuting attorney during closing arguments are also relevant on appeal. First, the prosecuting attorney discussed the impact of the crimes upon the victims, saying the victims are:
The prosecuting attorney then urged the jury to protect the community:
We need to protect the community. We need to protect this place we live and work in. We need to protect future potential victims. And we can do that. We are in a unique opportunity to hold someone accountable that will hopefully tell the rest of the county that this is not okay.
Further, in responding to Dempsey's closing argument, which suggested eyewitness identifications were unreliable because the detective conducting the photo lineup may have unwittingly influenced its results, the prosecuting attorney stated:
As discussed below, Dempsey alleges on appeal that several of the statements above were improper and amount to prosecutorial misconduct; however, she did not raise any objection to the prosecutor's closing argument at trial.
The jury found Dempsey guilty on all counts. In September 2018, the district court sentenced Dempsey to ten years, with five years determinate, for each count of burglary; fourteen years, with five years determinate, for each count of grand theft; and one year for each count of petit theft, with all of the sentences to run concurrently. At the sentencing hearing, the State also informed the district court that it intended to seek restitution for the victims.
Restitution for some victims was based on stipulations by the parties. For several more victims, the district court determined the amount of restitution due after taking testimony at hearings in November and December 2018. Based on the evidence submitted at trial and during the restitution hearings, the district court awarded the following in restitution: $13,684 to Joann Colwell (later reduced by $500 because some property was returned); $10,274 to Christie Batruel and Tony Ullrich; $11,511.06 to Sharon Grinde-Ash; and $84,000 to Yuki Cook.
The award to Colwell included restitution for stolen cash, jewelry, and other items, as well as $1,135 for the cost to replace a stolen stock certificate and three certified marriage certificates. Colwell testified at the restitution hearing that while she still owned her stocks, she needed the certificate to be able to sell them and it would cost $1,000 to have the certificate reissued. Likewise, Colwell testified that the cost to obtain new certified copies of her marriage certificate was $135. Colwell's testimony indicated she had not replaced the stock certificate at the time of the restitution hearing; as to the marriage certificates, no testimony or other evidence indicated whether they had been replaced or not.
The award to Batruel and Ullrich included restitution for jewelry, replacement locks for their doors, and $2,520 for two stolen smartphones, a tablet, and a laptop computer. As to the jewelry, Batruel testified that she had determined its value by researching similar items on the internet. However, she only provided the district court with evidence of the price she originally paid for the electronics ($3,150 in total), which were approximately one year old when they were stolen. After an exchange with both parties about the proper valuation of the electronics, the district court determined it would award restitution for the electronics, but would deduct 20 percent from their purchase price to account for depreciation.
The award to Grinde-Ash included restitution for stolen cash, watches and gold chains, luggage, silver bars, and $6,261.06 for several items of diamond jewelry purchased between 2002 and 2010. Grinde-Ash testified that the jewelry was in like-new condition and provided receipts showing the price paid for each item, as well as a higher "retail value" for each piece of jewelry. Grinde-Ash testified she believed the retail value on the receipts reflected the market value of the jewelry when it was stolen, though she had not actually determined current prices for any of the stolen pieces. She also testified that she "looked up" the value of diamonds and that they had increased in value since the pieces were purchased.
Finally, the award to Cook, included restitution for jewelry, significant amounts of paper cash (both dollars and yen), as well as $10,000 for a Japanese coin collection, $10,000 for an American coin collection, $450 for five bottles of perfume, and $3,500 for a vintage Chanel purse. As to the coin collections, Cook testified that some coins were old, while some were not; that at least one of the collections was contained within a "small clutch handbag"; that she did not know if any of the coins were made of precious metals; that some of the coins were American 50 cent pieces; that none of the coins were rolled; but that she believed each collection was worth $10,000. As to the five bottles of perfume, Cook testified that each bottle was worth $100. However, Cook acknowledged...
To continue reading
Request your trial