Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker, District Judge.
The opinion of the court was delivered by: Lansing, Chief Judge
Judgment of conviction for grand theft reduced to petit theft; order for restitution vacated, and case remanded.
Lonnie Robert Johnson was convicted by a jury of grand theft. He appeals, arguing that there was insufficient evidence to support the jury's grand theft verdict. He also asserts that the district court erred by giving insufficient jury instructions, excluding a defense witness's testimony as a discovery violation sanction, and assessing restitution, and that the prosecutor committed misconduct during closing arguments.
Around October 19, 2007, Union Pacific Railroad (UPR) reported the theft of copper signal wire that had been cut down from UPR's signal poles. A security officer with UPR, Dan Milovanovic, found at the location of the theft a T-shirt with the initials L.J. written on the collar and a plastic bag containing two receipts for the sale of copper wire to Pacific Steel and Recycling (PSR) by Johnson. The receipts indicated that Johnson had sold copper wire to PSR on October 4, 2007, and October 10, 2007. Milovanovic went to PSR and found what he believed to be UPR's six-gauge copper signal wire, chopped into short pieces, in one of the scrap metal bins. PSR employees informed Milovanovic that the wire in the bin had been sold to PSR by Johnson on October 22, 2007. PSR furnished a receipt for that sale which had two names on it, indicating that Johnson had told PSR that the wire belonged to Randy Arterburn and that Johnson was selling it for Arterburn. When officers stopped Johnson the next day in Lincoln County to arrest him for these wire thefts, they found other UPR wire in his vehicle. Johnson was charged in Twin Falls County with grand theft, Idaho Code §§ 18-2403(4), 18-2407(1), for disposing of stolen copper signal wire in the October 4, 10 and 22 sales to PSR. Johnson was not charged in the present case for theft of the wire found in his pickup when he was apprehended in Lincoln County.
At trial, Johnson testified that he found the first two sets of copper wire he sold to PSR on his brother's property after his brother died. Johnson stated that the third set of copper wire he sold to PSR he found while driving near UPR's railroad. He said the wire had become caught under his vehicle and he decided to collect and sell it. He denied ever cutting wire down from UPR's signal poles and denied any knowledge that the wire had been cut down or stolen by another.
To confirm his version of events, Johnson sought to present the testimony of Randy Arterburn's brother, James Arterburn, who would testify that he saw the copper wire at Johnson's brother's house and gave Johnson permission to sell it under Randy Arterburn's PSR account. However, Johnson had not disclosed this witness in pretrial discovery responses nor at any time until the second day of trial, after the State had rested. Johnson admitted he had been aware of this witness previously, but said he had been unable to contact him earlier. The district court excluded the testimony as a sanction for the nondisclosure. The jury found Johnson guilty, and the district court imposed sentence and ordered Johnson to pay $2,000 in restitution.
On appeal, Johnson argues that the trial evidence was insufficient to show that the value of the copper wire exceeded $1,000, the threshold value for a theft to constitute a felony rather than a misdemeanor, that the district court gave erroneous jury instructions on the valuation issue, that the district court erred in excluding Arterburn's testimony as a sanction, that the prosecutor committed misconduct during closing arguments, and that the district court erred in its assessment of restitution.
Johnson first argues that he could be convicted of, at most, the misdemeanor of petit theft because the trial evidence did not show that the value of the stolen wire exceeded $1,000. Under Idaho law, a theft constitutes a felony if the value of the property taken exceeds $1,000, I.C. § 18-2407(1)(b)(1). If the stolen items are of a lesser value, the offense is petit theft, a misdemeanor. I.C. § 18-2407(2). For purposes of the theft statute, "value" means "the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime."
I.C. § 18-2402(11)(a). Thus, under this statutory scheme, in a prosecution for grand theft the State must prove either that the market value of the stolen property exceeded $1,000 or it must prove a market value cannot be satisfactorily ascertained and may thereupon rely on the replacement cost as the value. If no value can be satisfactorily ascertained under the standards of I.C. § 18-2402(11)(a), then the property's value is deemed to be $1,000 or less. I.C. § 18-2402(11)(c).
A jury's finding that a disputed element of a crime has been proven will not be set aside on appeal if there is substantial evidence upon which a reasonable jury could have found that the State sustained its burden of proof beyond a reasonable doubt. State v. Estes, 148 Idaho 345, 347, 223 P.3d 287, 289 (Ct. App. 2009); State v. Beebe, 145 Idaho 570, 573, 181 P.3d 496, 499 (Ct. App. 2007); State v. Thomas, 133 Idaho 172, 174, 983 P.2d 245, 247 (Ct. App. 1999); State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct. App. 1998). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Byington, 132 Idaho 589, 593, 977 P.2d 203, 207 (1999) (quoting Bullard v. Sun Valley Aviation, Inc.,128 Idaho 430, 432, 914 P.2d 564, 566 (1996)). Thus, the query presented on this appeal is whether there was either (1) substantial evidence that the market ...