State v. Hallam
| Decision Date | 09 November 2016 |
| Docket Number | Docket No. 43737,2016 Unpublished Opinion No. 774,Docket No. 43035 |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. SABINA HALLAM, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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.
____________________
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.
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 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 theprosecutor'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 expenditurestatistics 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.
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 withany 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).
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...
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