State v. SummerState v. Summer
Lead Opinion
D. Sсott Summer (Summer) appeals his conviction of theft by deception on the grounds that the indictment against him omitted one of the elements of the crime charged, that the grand jury indictment was flawed because it was brought by the Idaho Attorney General who did not have jurisdiction to do so, and that there was insufficient evidence to present the charge to the trial jury. Summer also challenges whеther third parties, i.e. lawyers, engaged in settlement negotiations can present “claims” pursuant to insurance policies. He was acquitted on this charge, however.
BACKGROUND
Summer is a lawyer who was admitted to the bar in 1996. He represented Michael White concerning two unrelated auto accidents White suffered on April 4th and 15th of 1996. In the first accident White suffered injuries to which the other driver who was insurеd by State Farm Mutual Auto Insurance was assigned fault. The second accident involved a truck from Boise Cascade Corporation that tipped over and hit White’s rental car, causing only minor damage to the vehicle and no personal injury other than aggravating White’s previous injuries. Boise Cascade is self-insured and employs Eastern Oregon Claims, Inc., to adjust accident claims.
Summer made an offer to State Farm to settle the first accident. He did not report the second accident or any aggravation of White’s injuries resulting from the second accident to State Farm. State Farm agreed to a settlement, and Summer informed White that his case was closed. However, Summer wrote a letter to Eastern Oregon Claims asking it to settle Boise Cascade’s accident with White for $9,081, claiming as damages many of the medical injuries White had suffered in the first accident. There is evidence that Summer altered some dental reports relating to White’s first accident by whiting out the date of the crash and sent them to Eastern Oregon Claims. Eastern Oregon Claims forwarded the letter to Boise Cascade which rejected the claim. Summer made no more attempts to settlе the claim and dropped the matter.
In November of 1997 a deputy attorney general brought Summer’s conduct before a grand jury in Canyon County. The deputy attorney general had not been appointed to act as a special prosecutor in the case. The grand jury returned a three-count indictment, alleging that Summer had committed (1) insurance fraud as to the settlement of the first аccident, (2) forgery as to the alteration of the dental records, and (3) insurance fraud and in the alternative grand theft by deception as to the attempt to settle the second accident. Summer moved to dismiss all the charges, which the trial court considered pending an interlocutory appeal on count three. The deputy attorney general obtained a second indictment against Summer, although he still had not yet been formally appointed to act as the prosecutor in the case. Summer moved to dismiss the case on the grounds that the deputy attorney general did not have the authority and jurisdiction to try the case. The district court agreed with Summer, but gave the deputy attorney general ten days to petition for a special appearance pursuant to I.C. § 31-2603(b). The deputy attorney general petitioned, and the district court entered an order allowing the special appearance.
The second indictment alleged Summer had committed (1) insurance fraud, (2) forgery, and (3) grand theft by deception. Before the jury was given instructions, Summer moved to dismiss counts 2 and 3 on the grounds that the indictment failed to allege that he attempted to deprive property “from the owner thereof,” an element of the crime listed in the theft statute I.C. § 18-2403. The State moved to amend the indictment as to grand theft by deception to include the owner of the property, Boise Cascade. Summer challenged the state’s motion. The district court disallowed the State’s amendment. The court dismissed the charge of forgery. After trial оn the remaining counts, the jury acquitted Summer of insurance fraud but found him guilty of grand theft by deception. Summer appealed.
II.
THE INDICTMENT WAS SUFFICIENT AND THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION
A. Standard of Review
Whether an indictment or information conforms to the requirements of law is a question subject to free review. State v. Clark,
B. Sufficiency of the Indictment
The theft statute under which Summer was charged requires that he attempt to deprive “the owner thereof’ of its property. The indictment identified Eastern Oregon Claims, Inc. and not Boise Caseade as the owner of the property that Summer attempted to take. Summer maintains that the indictment was insufficient to charge a crime and should have been dismissed by the district court.
The State maintains that Summer is es-topped from raising the issue of the sufficiency of the indictment as to theft by deception since he objected to the amendment of the indictment to cure any deficiency. Further, the district court found the indictment sufficient in that exact specificity as to the owner was not necessary—the allegation that Summer wrongfully intended to deprive another of property, satisfied the requirement that he intended to take the “property from the owner thereof.”
Idaho Code section 18-2403(1), (2)(a), states:
Theft.—(1) A person steals property and commits theft when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such propеrty from an owner thereof.
(2) Theft includes a wrongful taking, obtaining or withholding of another’s property, with intent prescribed in subsection (1) of this section, committed in any of the following ways:
(a) By deception obtains or exerts control over property of the owner....
The indictment stated:
That, on or about November 6,1996, in the County of Canyon, State of Idaho, the defendant, D. SCOTT SUMMER, did, with the intent to deprive another of proрerty attempt to deceive another for purpose of obtaining $9,081.00, lawful money of the United States, to wit: the defendant, D. SCOTT SUMMER, while attempting to settle a claim, wrongfully attempted to deceive Eastern Oregon Claims Service to settle a claim for $9,081.00 well knowing that the statements he was making in support of his demand for payment were false and misleading.
The district judge made the following anаlysis of the objection to the sufficiency of the indictment:
The case law would indicate that you must be specific enough to advise the 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 alleged offense may be identified with certainty as to time, place, and persons involved.... [T]he court does not believe, based on case law, again, that the identity of the victim must be exact.
This Court has stated that the words used in the statute need not be strictly restated in the indictment. See Robran,
C. Sufficiency of the Evidence
Summer argues that the charge of grand theft by deception should not have
As previously determined, the indictment was sufficient, and there was evidence to support the charge that Summer attempted to take property of another by deception. Evidence that Boise Cascade was the owner of the property was properly admitted and supported the change.
Summer relies on I.C. § 18-2402(ll)(a) and (c) and Anderson v. Fanners Ins. Co. of Idaho,
The settlement claim has no inherent value, but through that claim Summer was to obtain over $9,000. There was adequate evidence from whiсh the jury could determine that the value of the property Summer attempted to obtain exceeded $300., This does not endanger the civil settlement process where claims may be made for amounts well in excess of their actual value. It endangers the practice of using false or altered documents to secure payments. The license to bargain and puff does not еncompass the license to falsify documents and make claims for injuries and damages arising from another accident.
III.
ATTORNEY GENERAL’S JURISDICTION
The deputy attorney commenced prosecution of this case before the grand jury without the consent of the Canyon County prosecutor and without being appointed by the district court upon special petition. Summer argues that this violates the division of рrosecutorial activities as set forth in I.C. §§ 31-2227, 31-2604, 67-1401, and the prohibition of I.C. § 19-1111 that no one except the prosecuting attorney be allowed to address the grand jury.
The State responds that I.C. § § 41-213 and 41-295 specifically allow the Attorney General to initiate prosecutions for insurance fraud and related crimes and that there is flexible concurrent jurisdiction between the Attorney General and the county prosecutors. Additionally, the State argues even if the Attorney General does not have the authority to bring the charges before the grand jury, Summer is not entitled to a dismissal of the charge since the Attorney General exercised no undue influence over the grand jurors.
Idaho Code § 19-1111 states in relevant part that the “prosecuting attorney of the county may at all times appeal’ before the grand jury .... but no other person is permitted to be present during the sessions” except the witnesses called and any interpreters. Summer argues that the deputy attorney general’s presence violated I.C. § 19-1111. In State v. Edmonson,
In 1998 the Legislature deleted the provision allowing the Attorney General to “exercise supervisory powers over prosecuting attorneys,” apparently reducing the authority of the Attorney Gеneral in relation to county prosecuting attorneys. Even prior to the 1998 amendment to I.C. § 67-1401, Newman made it clear that the prosecuting attorney has primary responsibility for the enforcement of state penal laws and resolved the issue against the Attorney General’s office when it sought to exercise dominion and control of the case in Minidoka County contrary to the position оf the prosecuting attorney. The conflict that had to be resolved in Newman does not exist in this case. Subsequent to the presentation of the case to the grand jury by a deputy attorney general, the Canyon County Prosecuting Attorney moved for the appointment of a special prosecuting attorney, and the district court entered an order appointing “any duly appointed аnd sworn Deputy Attorney General” as a special prosecuting attorney. Any defect in the process of obtaining an indictment was cured.
IV.
THE ISSUES CONCERNING INSURANCE FRAUD ARE MOOT
Summer maintains that the Court should consider whether an attorney engaged in settlement negotiations can be charged with insurance fraud under I.C. § 41-293 (1994), which states that persons are guilty of insurance fraud if by misleading statements, they attempt to gain funds from an insurer “pursuаnt to an insurance policy.”
The issue is moot because Summer was acquitted of the charge, and the language “pursuant to an insurance policy” was deleted from I.C. § 41-293 in 1997.
V.
CONCLUSION
The Order of Probation on Withheld Judgment entered by the district court following a jury determination that Summer was guilty of attempted theft by deception is affirmed.
Concurrence Opinion
specially concurring.
I believe the majority opinion reaches the correct result regarding the authority of the Attorney General to initiate prosecution in this matter; that on the facts of this case, any defect in the indictment or the authority of the Attorney General was cured by the district court’s order of November 12, 1999, appointing special counsel. I write specially, however, to emphasize that public policy calls for the Attorney General to resist the temptation to become overly involved with the role played by county prosecutors.
The Attorney General and county prosecutors are constitutional officers in Idaho. Idaho Constitution Art. IV, § 1 and Art. V, § 18. The fact that each holds a separate constitutional office establishes a public policy in favor of distinguishing between roles for prosecuting attorneys and the Attorney Gеneral and his (or -her) deputies. In addition to the constitutionally established public policy calling for a distinction between the roles, the Legislature has set forth specific duties for prosecuting attorneys. One such duty is “[t]o prosecute all felony criminal actions, irrespective of whom the arresting officer is_” I.C. § 31-2604(2).' The county prosecutors’ duty are also described by I.C. § 31-2227, which states in part:
*225 Irrespective of police powers vested by statute in state ... it is hereby declared to be the policy of the state of Idaho that the primary duty of enforcing all the penal provisions of any and all statutes of this state, in any court, is vested in the sheriff and prosecuting attorney of each of the several counties.
Additionally, this Court has held that “it is the duty of the prosecuting attorney of the county to prosecute all criminal cases in which hе is not disqualified.” Adamson v. Bd. of County Comm’rs of Custer County,
The Attorney General argues that I.C. § 41-213(3), setting forth guidelines for the Department of Insurance, grants authority for the Attorney General to bring criminal charges arising from insurance code violations such as those in this case. This section states:
If the director has reason to believe that any person has violated any provision of this code, or any provision of other law as applicable to insurance operations, for which criminal prosecution is provided and would be in order, he shall give the information relative thereto to the attorney general or county attorney having jurisdiction of any such violation. The attorney general or county attorney shall promptly institute such action or proceedings against such person as the information may require or justify.
I.C. § 41-213(3). In stating that “[t]he attorney general or county attorney shall promptly institute such action or proceedings against such person as the information may require or justify,” section 41-213(3) does grant the attorney general authority to institute certain types of actions arising from insurance code violatiоns. The section does not, however, grant the attorney general power to institute actions for violations of the insurance code that he is otherwise constitutionally or statutorily barred from instituting. Thus, in this case, like any other criminal ease, it is the county prosecutor, not the Attorney general who has the authority to initiate felony criminal proceedings. This conclusion receivеs further support from I.C. § 31-2603 which allows a county prosecutor to petition the district court for appointment of a “special assistant attorney-general to assist in the prosecution of any criminal case pending in the county.” I.C. § 31-2603(b). Such an appointment is only appropriate, however, where “good cause appears for granting such petition-” I.C. § 31-2603(b).
In light of the constitutiоnal distinctions between the Attorney General and county prosecutors, the Legislature’s descriptions of the duties of each, and section 31-2603 which allows for appointment of special prosecutors, it is clear that the Attorney General’s office does not have the power to initiate criminal proceedings absent a petition and order of the district court. Nothing in the record shows that the Attorney General office had received a court order empowering it to initiate this case at the time the matter was submitted to the grand jury. Thus, the proceedings were improperly instituted. On the facts of this case, the court’s order appointing the Attorney General as a special prosecutor cured this defect. The Attorney General’s office should, however, take this case as fair warning that it is not constitutionally or statutorily authorized to initiate criminal proceedings without an order of a district court.