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IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 32625
STATE OF IDAHO,                                                                                                                 )
                                                                                                                                )   2007 Opinion No. 25
                                                                                                        Plaintiff-Respondent,   )
                                                                                                                                )   Filed: May 7, 2007
v.                                                                                                                              )
                                                                                                                                )   Stephen W. Kenyon, Clerk
RUTH M. CHEENEY,                                                                                                                )
)
Defendant-Appellant.                                                                                    )
)
Appeal from the District Court of the Second Judicial District, State of Idaho, Nez
Perce County.  Hon. Jeff M. Brudie, District Judge.
Order of restitution, affirmed in part, reversed in part, and remanded; judgment of
restitution in favor of Wells Fargo Bank, vacated; judgment of restitution in favor
of Stuart Allan and Associates, vacated.
Clark & Feeney, Lewiston, for appellant.  Charles M. Stroschein argued.
Hon.  Lawrence  G.  Wasden,  Attorney  General;  Daniel  W.  Bower,  Deputy
Attorney General, Boise, for respondent.  Daniel W. Bower argued.
PERRY, Chief Judge
Ruth M. Cheeney appeals from the district court’s order of restitution and judgments of
restitution.   For the reasons set forth below, we vacate the judgments of restitution in favor of
Wells Fargo Bank and Stuart Allan and Associates and remand for entry of an amended
judgment of restitution payable to the direct victim of Cheeney’s crime.
I.
FACTS AND PROCEDURE
As an employee at a doctor’s office, Cheeney was responsible for billing and deposits,
including deposits of checks received for the doctor’s services, into his account at Wells Fargo
Bank.   When making the deposits at Wells Fargo, Cheeney would apparently deposit all checks
but one, instructing the teller that one check needed to be cashed for use at the doctor’s office.
Cheeney would keep the cash.   In August 2003, the doctor terminated Cheeney’s employment
for allegedly procuring fraudulent prescriptions and for irregularities with office petty cash.   The
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doctor soon thereafter discovered that substantial amounts of money were missing.   Cheeney
allegedly embezzled over $200,000 between January 2000 and August 2003.
Thereafter, Wells Fargo entered into a settlement agreement with the doctor, whereby the
bank paid the doctor $157,500 for losses he incurred as a result of Cheeney’s theft.  Additionally,
Safeco Insurance Company apparently paid the doctor $15,000 for his loss.   Stuart Allan and
Associates, a collection agency, began pursuing the $15,000 from Cheeney on behalf of the
insurance company.
The state charged Cheeney with grand theft.  I.C. §§ 18-2403(2)(b) and 18-2407(1)(b)(8).
Cheeney pled guilty, and the state dismissed charges filed in a separate criminal case.   The
district court sentenced Cheeney to a unified term of seven years, with a minimum period of
confinement of three years, and ordered restitution in the amount of $232,788.49.   The district
court subsequently suspended Cheeney’s sentence and placed her on probation for seven years.
Cheeney objected to the order of restitution.   At a hearing on Cheeney’s objection, Cheeney
stipulated to $220,589.55 being the proper amount of restitution but argued that the bank and the
collection agency were not entitled to restitution.    The district court entered an order for
restitution and separate judgments in favor of the doctor for $48,089.55, Wells Fargo Bank for
$157,500, and Stuart Allan for  $15,000.    Cheeney appeals the order of restitution and the
judgments in favor of Wells Fargo and Stuart Allan.
II.
ANALYSIS
Cheeney does not dispute that the doctor was authorized to receive restitution.   Cheeney
disputes the district court’s ruling and the state’s argument on appeal that the bank and the
insurance company’s collection agency were also authorized to receive restitution.
Orders for the payment of restitution to crime victims are governed by I.C. § 19-5304.
State v. Taie, 138 Idaho 878, 879, 71 P.3d 477, 478 (Ct. App. 2003).   The decision whether to
require restitution is committed to the trial court’s discretion.   Id.   It is generally recognized,
however, that courts of criminal jurisdiction have no power or authority to direct reparations or
restitution to a crime victim in the absence of a statutory provision to such effect.   State v.
Richmond, 137 Idaho 35, 37, 43 P.3d 794, 796 (Ct. App. 2002).   Therefore, the trial court’s
exercise of discretion in requiring restitution must be within the boundaries provided in Section
19-5304.   To qualify for restitution, a claimant must be a “victim” as that term is used in the
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statute.   I.C. §§ 19-5304(1)(e), (2).   Restitution may be ordered only for actual economic loss
suffered by a victim.   I.C. §§ 19-5304(1)(a), (2).   Determination of the amount of economic loss
shall be based upon the preponderance of evidence submitted to the court by the prosecutor,
defendant, victim or presentence investigator.  I.C. § 19-5304(6).  Each party shall have the right
to present such evidence as may be relevant to the issue of restitution, and the court may consider
such  hearsay  as  may  be  contained  in  the  presentence  report,  victim  impact  statement,  or
otherwise provided to the court.   Id.   On appeal, the award will be upheld if it is supported by
substantial evidence.   See Taie, 138 Idaho at 879, 71 P.3d at 478; State v. Hamilton, 129 Idaho
938, 943, 935 P.2d 201, 206 (Ct. App. 1997); State v. Bybee, 115 Idaho 541, 544, 768 P.2d 804,
807 (Ct. App. 1989).
The present case requires us to determine whether the bank and the insurance company’s
collection agency fall within the statutory definition of “victims” who are authorized to receive
restitution.   This Court addressed this issue in State v. Gardiner, 127 Idaho 156, 898 P.2d 615
(Ct. App. 1995) under a prior version of Section 19-5304, which did not include insurers within
the definition of victims.   We held that the district court could award the directly-injured victim
the full amount of the economic loss even though an insurance company had already paid the
directly-injured victim for the loss.  See Gardiner, 127 Idaho at 167, 898 P.2d at 626.  This Court
reasoned that, pursuant to Section 19-5304(2), the existence of an insurance policy covering the
victim’s loss does not absolve a defendant of the obligation to pay restitution.   The defendant
was thus prevented from gaining a “windfall” just because the victim had the foresight to obtain
insurance.   The definition of victim in Section 19-5304(1)(e) was amended to include insurers
and certain other persons and entities after the Gardiner decision.1   See 1997 Idaho Sess. Laws,
ch. 112 at 272.   Section 19-5304(1)(e) now includes four categories of victims.   See I.C. §§ 19-
5304(1)                                                                                                (e)(i),                                                                                  (ii),   (iii), and   (iv).   Pertinent to this appeal, Section  19-5304(1)(e)(iv) defines
victim to include “a person or entity who suffers economic loss because such person or entity has
made payments to or on behalf of a directly injured victim pursuant to a contract including, but
not limited to, an insurance contract.”
1                                                                                                      Cheeney’s reliance on Gardiner as authority establishing which persons or entities may
be victims is therefore misplaced.   This Court recognized the amendment to the definition of
victim in a case not cited in Cheeney’s opening brief.   See Taie, 138 Idaho at 879 n.1, 71 P.3d at
478 n.1.
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This Court exercises free review over the application and construction of statutes.   State
v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003).   Where the language of a
statute is plain and unambiguous, this Court must give effect to the statute as written, without
engaging in statutory construction.   State v. Rhode, 133 Idaho 459, 462, 988 P.2d 685, 688
(1999); State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134
Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000).   The language of the statute is to be given its
plain, obvious, and rational meaning.   Burnight, 132 Idaho at 659, 978 P.2d at 219.     If the
language is clear and unambiguous, there is no occasion for the court to resort to legislative
history or rules of statutory interpretation.   Escobar, 134 Idaho at 389, 3 P.3d at 67.    When this
Court must engage in statutory construction, it has the duty to ascertain the legislative intent and
give effect to that intent.   Rhode, 133 Idaho at 462, 988 P.2d at 688.   To ascertain the intent of
the legislature, not only must the literal words of the statute be examined, but also the context of
those words, the public policy behind the statute, and its legislative history.   Id.   It is incumbent
upon a court to give a statute an interpretation, which will not render it a nullity.   State v. Beard,
135 Idaho 641, 646, 22 P.3d 116, 121 (Ct. App. 2001).   Constructions of a statute that would
lead to an absurd result are disfavored.   State v. Doe, 140 Idaho 271, 275, 92 P.3d 521, 525
(2004); State v. Yager, 139 Idaho 680, 690, 85 P.3d 656, 666 (2004).
Section 19-5304(1)(e)(iv) unambiguously includes in the definition of victim any person
or entity who suffers economic loss because such person or entity has made payments to or on
behalf of a directly-injured victim pursuant to a contract.  A plain reading therefore includes third
parties who incurred a loss pursuant to a contractual obligation to make payments to or on behalf
of a directly-injured victim.   Without such a contractual obligation, the third party is not a victim
as defined in Section                                                                                     19-5304(1)(e)(iv).    Such third-party victims could include insurance
companies or any other party that makes payments to or on behalf of the directly-injured victim
pursuant to a contract.  The determination of whether payments were made pursuant to a contract
is a question of fact for the trial court.   Each party has the right to present evidence on whether a
person or entity qualifies as a victim, and the court may consider such hearsay as may be
contained in the presentence report (PSI), victim impact statement, or otherwise provided to the
court.   See I.C. § 19-5304(6).   On appeal, factual findings in ordering restitution will not be
disturbed if supported by substantial evidence.  See Hamilton, 129 Idaho at 943, 935 P.2d at 206;
Bybee, 115 Idaho at 544, 768 P.2d at 807.
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Nothing in Section 19-5304 requires that the directly-injured victim’s award must be
reduced by amounts paid to him or her by any third party who does not qualify as a victim under
the statute.   As it did at the time of the Gardiner decision, Section 19-5304(2) still provides that
the existence of an insurance policy covering the victim’s loss does not absolve a defendant of
the obligation to pay restitution.   We conclude that, in amending Section 19-5304, the legislature
did not intend to supersede the portion of the Gardiner decision holding that the district court
could award the directly-injured victim the full amount of the economic loss even though a third
party had already paid the directly-injured victim for the loss.   See id., 127 Idaho at 167, 898
P.2d at 626.   A defendant is therefore still prevented from gaining a windfall in the event that a
victim had the foresight to obtain insurance or the diligence to pursue some other form of
compensation for his or her loss.
This Court has relied on Section 19-5304(1)(e)(iv) to hold that insurance companies that
paid benefits for damage inflicted by a defendant’s criminal actions were victims entitled to
recover their economic loss.   See Taie, 138 Idaho at 879, 71 P.3d at 478.   The defendant in Taie
did not argue, however, that the state failed to prove the insurance companies were contractually
obligated to make payments to the directly-injured victims.   Rather, the defendant’s argument
was limited to challenges that the evidence did not support the amount of the restitution order
and that the district court failed to adequately consider Taie’s inability to actually pay the total
award.   Therefore, Taie did not address the sufficiency of the evidence presented by the state to
establish that the insurance companies were victims who made their payments pursuant to
contractual obligations.
In the present case, Cheeney argues that the state did not present sufficient evidence that
Wells  Fargo  or  Safeco  were  victims  who  made  their  payments  to  the  doctor  because  of
contractual obligations requiring them to do so.   The district court found, in a written order on
restitution, that the doctor carried a business insurance policy with Safeco and that the insurance
company  subsequently  contracted  with  Stuart  Allan  to  collect  the                                $15,000  payment  from
Cheeney.  If the district court’s findings were supported by substantial evidence, Safeco could be
a victim because the district court found that Safeco paid the doctor pursuant to a contract--an
insurance policy.   However, the district court did not find, and the state does not argue, that the
collection agency paid the doctor $15,000.   The district court could therefore order restitution to
be paid directly to Stuart Allan only if Section 19-5304 authorizes payment of restitution to be
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made to an agent of a person or entity that qualifies as a victim.  We need not decide whether the
district court may award restitution to Stuart Allan, as Safeco’s agent, because the record before
us does not contain substantial evidence of an insurance contract to qualify Safeco as a victim.
The only evidence pertinent to Safeco is a collection letter to Cheeney from Stuart Allan for
$15,000.   The letter indicates that Safeco is Stuart Allan’s client, but it makes no reference to an
insurance policy or a payment from Safeco to the doctor.
Likewise, we need not determine whether the district court made a finding that Wells
Fargo made its payment pursuant to a contract because the record before us does not support
such a finding.  The record includes a settlement agreement between Wells Fargo and the doctor,
a letter from the bank’s counsel regarding the settlement agreement, and a copy of a check for
$157,500 from the bank to the doctor.   These exhibits refer to an agreement to settle an account
dispute, but the exhibits do not indicate that the dispute arose from a contract between the bank
and the doctor.   Based on the evidence before us, the dispute could have arisen, as Cheeney
asserts it did, from an allegation that the bank acted negligently rather than from a contractual
obligation the bank had to the doctor.   We are therefore not persuaded by the state’s argument
that evidence of the settlement agreement qualifies as evidence that the $157,500 payment was
made pursuant to a contract.
The state argues that it provided Cheeney with a three-inch-thick stack of documents
regarding restitution, which included information establishing that the payments made by Wells
Fargo and Safeco were made pursuant to contracts with the doctor.   The state does not show,
however, that this three-inch-thick stack of documents was ever presented to the district court
and it is not included in the record before us.   The district court therefore could not rely upon it.
The state also cites several pages from the PSI.  None of the portions of the PSI cited by the state
refer to Safeco or Stuart Allan.   The PSI indicates that Cheeney embezzled the money at the
bank, but it does not indicate that the bank paid the doctor pursuant to a contract.
The transcript from the restitution hearing indicates that the state did not present any
testimony or evidence during the hearing.  At the hearing, however, the doctor and the prosecutor
represented that the doctor had an insurance policy with Safeco.
THE COURT:                                                                                               Safeco Insurance was evidently the insurance provider for
[the doctor], some kind of business operation policy.
[DOCTOR]:                                                                                                That’s correct, Your Honor.
[PROSECUTOR]:    Yes, Your Honor.
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[DEFENSE COUNSEL]:     Judge, I’m going to object to people in the gallery
making comments to the court.
THE COURT:                                                                                              That’s fine. . .
The doctor was not under oath when he responded to the district court.   Pursuant to Section 19-
5304(6), the court may consider such hearsay as may be contained in the PSI, victim impact
statement, or otherwise provided to the court.  Section 19-5304(6) therefore sets a lower standard
than the rules of evidence that would apply to a criminal trial.  If the doctor had indicated that he
had an insurance policy with Safeco while testifying under oath at the restitution hearing or in his
victim impact statement in the PSI, the district court could have relied upon his statement as
evidence.   However, the doctor’s unsolicited comment while he was not under oath and the
prosecutor’s unsupported representations cannot be relied upon as evidence of the existence of a
contract, even under the low evidentiary standard established in Section 19-5304(6).
In sum, the record is devoid of any evidence, hearsay or otherwise, that Wells Fargo and
Safeco  made  payments  pursuant  to  contractual  obligations  to  the  doctor.    Section             19-
5304(1)                                                                                                 (e)(iv) requires evidence of a contractual obligation before the district court may enter an
order of restitution and judgment  for a third-party victim that incurred a loss by making
payments to a directly-injured victim.   Courts of criminal jurisdiction have no power to direct
restitution to a crime victim in the absence of a statutory provision authorizing such restitution.
See Richmond, 137 Idaho at 37, 43 P.3d at 796.   We are therefore constrained to hold that the
district court erred when it ordered restitution to be paid directly to Wells Fargo and Safeco’s
collection agency, Stuart Allan.
Cheeney, however, does not gain a windfall due to the doctor’s foresight and diligence in
securing substantial compensation for his loss.   Cheeney stipulated that the proper amount of
restitution  was                                                                                        $220,589.55.     As  noted  above,  nothing  in  Section                                       19-5304  limits  the
directly-injured victim’s award by amounts paid to him or her by any other third party who does
not qualify as a victim under the statute.   Indeed, in Gardiner, this Court held that the district
court could award the directly-injured victim the full amount of the economic loss even though
an insurance company had already paid the directly-injured victim for the loss.   See Gardiner,
127 Idaho at 167, 898 P.2d at 626.  That holding in Gardiner was not superseded by the statutory
amendment redefining the term “victim.”   In the absence of evidence that payments by Wells
Fargo and Safeco were made pursuant to contractual obligations, the statute authorizes the
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district court to order Cheeney to pay the doctor restitution for the entire amount of the economic
loss that Cheeney stipulated to have caused, $220,589.55.2
III.
CONCLUSION
We hold that the district court erred by ordering Cheeney to pay restitution directly to
Wells Fargo and Stuart Allan when the state failed to present substantial evidence that those
parties incurred an economic loss pursuant to contracts with the doctor.  We therefore reverse the
district court’s order to the extent that it awarded restitution to the bank and collection agency
and vacate the judgments of restitution for the bank and the collection agency.  The district court
was authorized, however, to order Cheeney to pay restitution in favor of the doctor for the entire
amount of the economic loss to which Cheeney stipulated, $220,589.55.  We therefore affirm the
district court’s order to the extent that it awarded restitution to the doctor in the amount of
$48,089.55.   On remand, however, the district court is instructed to enter an amended order of
restitution and enter an additional judgment for $172,500 in favor of the doctor.
Judge LANSING and Judge Pro Tem WALTERS, CONCUR.
2                                                                                                     It will be up to Wells Fargo and Safeco to work out with the doctor any reimbursement
for the amounts they paid to the doctor.  See Gardiner, 127 Idaho at 167, 898 P.2d at 626.
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