State v. Owen

• Decision Date: 08 January 1997
• Docket Number: No. 20707,20707
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Fairy Jane OWEN, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 183

935 P.2d 183

129 Idaho 920

STATE of Idaho, Plaintiff-Respondent, v. Fairy Jane OWEN, Defendant-Appellant.

No. 20707.

Court of Appeals of Idaho.

Jan. 8, 1997.

Rehearing Denied March 5, 1997.

Petition for Review Denied,

April 29, 1997.

Nevin, Kofoed & Herzfeld, Boise, for appellant. Dennis A. Benjamin argued.

Alan G. Lance, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent. John C. McKinney argued.

WALTERS, Chief Judge.

Fairy Jane Owen was found guilty by a jury of twenty-nine counts of grand theft and of one count of attempted grand theft. The district court imposed unified sentences of fourteen years, with minimum periods of confinement of three years, for each grand theft conviction, and a unified sentence of seven years with a minimum period of confinement of two years for the attempted grand theft conviction. The court ordered that all sentences be served concurrently. Owen appeals from her convictions and the sentences imposed. For the reasons set forth below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Fairy Jane Owen was charged by four separate informations filed by the prosecuting attorney for Bannock County with a total of thirty counts of grand theft, I.C. §§ 18-2403(1) and 18-2407(1), and with two counts of attempted grand theft, I.C. §§ 18-2403, 18-2407(1) and 18-306. She was accused in the various counts of wrongfully obtaining a vast array of goods and services from businesses in the Pocatello area. ¹

Upon Owen's pleas of not guilty, the charges were consolidated for trial and a trial date was set for June 15, 1993. Attorney Thomas F. Hale, who had entered an appearance on behalf of Owen, failed to attend on the scheduled day of the trial. The district court rescheduled the trial for August 5, 1993, and contempt proceedings were initiated against Hale. ² The court also requested the Bannock County Public Defender's Office to assign appointed counsel to assist Owen. Subsequently, over Owen's objection, Robert O. Eldredge, a conflicts attorney, was appointed by the court as standby counsel for Owen. The court denied Owen's request for a continuance of the August 5 trial date. During the trial, Owen personally conducted the majority of her defense. Eldredge performed some of the direct examinations of the defense witnesses and delivered the closing argument.

The jury found Owen guilty of twenty-nine counts of grand theft and guilty on one count of attempted grand theft. The district court imposed a unified sentence of fourteen years, with three years fixed, for each conviction of grand theft. The court also imposed a fixed term of two years with a subsequent indeterminate term of five years for the attempted grand theft conviction. The court ordered that all sentences be served concurrently. Owen timely appealed from her convictions and the sentences imposed.

II. ISSUES

Owen asserts that: (1) all of the informations, as amended, were insufficiently pled because they failed to aver specific facts which would have enabled her to adequately prepare a defense against each of the thirty counts of theft alleged pursuant to I.C. § 18-2403(1); (2) the charges of theft by deception, I.C. § 18-2403(2)(a), and theft by false promise, I.C. § 18-2403(2)(d), are unconstitutional because they violate Art. I, § 15 of the Idaho Constitution by permitting imprisonment for debt without a showing of fraud; (3) jury instructions nos. 15 and 16 unconstitutionally allowed the jury to return a verdict finding Owen guilty of theft on the ground of unpaid debts without requiring a determination that fraud had been committed with respect to those debts; (4) the district court erred by appointing counsel over Owen's objections; (5) the state's use of peremptory challenges to dismiss a Native American from the venire panel was unconstitutional; (6) the district court erred in permitting the state to amend the charge of attempted theft of a refrigerator to attempted theft of a range, after the state had rested its case; (7) the district court violated I.R.E. 804(b)(1) and Art. I, § 13 of the Idaho Constitution by allowing the state to present a witness's testimony by way of a transcript of Owen's preliminary hearing; (8) jury instruction nos. 11 and 16 violated Owen's right to due process under the state and federal constitutions because both instructions permitted conviction upon evidence proving guilt to a "moral certainty" rather than proof beyond a reasonable doubt; and (9) the district court violated Owen's federal and state protections against self-incrimination by requiring her to submit to a psychological evaluation in connection with the preparation of reports for consideration during Owen's sentencing hearing.

III. DISCUSSION

A. Sufficiency of the Informations.

Owen submits that the informations were not "plain, concise and definite written statement[s] of the essential facts constituting the offense[s] charged" as required by Idaho Criminal Rule 7(b). She supports her position with the following arguments. First, Owen asserts that the state charged her in the informations under the general theft statute, I.C. § 18-2403(1), which defines the crime of theft without reference to the particular method used by the offender to take, obtain or withhold the alleged owner's property. ³ She argues that, nevertheless, the state should have alleged which of the eight alternative "methods" or "ways" of committing theft pursuant to I.C. § 18-2403(2) ⁴ it was charging, especially as the state later--during the trial--used the theories of theft by deception, I.C. § 18-2403(2)(a), and theft by false promise, I.C. § 18-2403(2)(d), to establish Owen's guilt. Second, Owen asserts that the state failed to provide any facts in the informations which would have enabled her to know which subsection or subsections of I.C. § 18-2403(2) she would have to defend against with respect to any particular charge. Owen contends that because she did not receive adequate notice of the specific theft charges, she was unable to prepare a complete defense and, consequently, was denied her state and federal constitutional rights to due process. Finally, Owen points to Idaho Rule of Civil Procedure 9(b) which requires that "the circumstances constituting fraud ... shall be stated with particularity," and argues that because her liberty was at stake she should be entitled to at least the same amount of notice to which a civil litigant is entitled in a fraud action.

The state responds that the informations complied with I.C.R. 7(b), as well as with the constitutional requirements for due process. The state argues that I.C. § 18-2409 relieves the charging party from specifying which "method" or "way" the accused committed the alleged theft under I.C. § 18-2403. The state also asserts that even if it was obligated to provide the way or manner in which the thefts were committed, the state is not required to provide in the charging documents the evidence which it intends to produce at trial. Such disclosure of evidence, the state maintains, is not required in order for an information to be legally sufficient. Finally, the state submits that Owen failed to demonstrate that the language used in the informations prejudiced the preparation of her defense and thus should not be permitted to now challenge the sufficiency of the informations. In response, Owen contends that because the issue of the sufficiency of the informations is a jurisdictional question, see State v. Grady, 89 Idaho 204, 404 P.2d 347 (1965) she was not required to show that she had been prejudiced. ⁵

Whether an information conforms to the requirements of law is a question that is subject to free review. State v. Robran, 119 Idaho 285, 287, 805 P.2d 491, 493 (Ct.App.1991). A legally sufficient information is a plain, concise, and definite written statement of the essential facts constituting the offense charged. I.C. §§ 19-1303, 19-1409 through 19-1418; I.C.R. 7(b); State v. Darbin, 109 Idaho 516, 519, 708 P.2d 921, 924 (Ct.App.1985). The sufficiency of an information ultimately depends on whether it fulfills the basic functions of the pleading instrument. State v. Windsor, 110 Idaho 410, 417, 716 P.2d 1182, 1189 (1985); Robran, 119 Idaho at 287, 805 P.2d at 493. The sufficiency of an information is tested by a functional analysis encompassing two inquiries: (1) whether the pleading contains the elements of the offense charged and fairly informs the defendant of the charge which must be defended against; and (2) whether the information enables the defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974), cited in Windsor, supra, and Robran, supra. An information must be specific enough to advise a defendant as to the particular section of the statute he or she is being charged with having violated and, in addition, must set forth a concise statement of the facts constituting the alleged offense sufficiently stated that the particular offense may be identified with certainty as to time, place and persons involved. State v. Grady, at 211, 404 P.2d at 351.

We will address the issue of the sufficiency of the informations filed against Owen by reviewing each information in turn. We then discuss the informations collectively.

The record shows that, on January 8, 1993, Owen was charged by information with one count of grand theft by deception (obtaining property under false pretenses) pursuant to I.C. §§ 18-2403(2)(a) and 18-2407(1) ⁶. Over Owen's objection, the information was subsequently amended in May, 1993, to allege grand theft under the general theft statute. As amended, the information in pertinent part charged that Owen, while in Pocatello, Idaho, did on a specified date:

unlawfully and feloniously, with the intent to permanently deprive another of their property, or to appropriate the same to herself or...