Appeal from the District Court of the Second Judicial District, State of Idaho, Clearwater County. Hon. John H. Bradbury, District Judge.
The opinion of the court was delivered by: Perry, Judge Pro Tem
Judgment of conviction and sentence, affirmed. Order for restitution, affirmed.
This is an appeal from the sentence and restitution order imposed upon Verna L. Lombard's conviction for burglary and grand theft. Lombard contends that the district court abused its discretion by ordering a restitution amount that was unsupported by substantial evidence. Lombard further contends that in sentencing her, the district court erred by considering facts unsupported by substantial evidence in the record. We affirm.
I. FACTS AND PROCEDURAL BACKGROUND
Lombard was employed as a clerk with Mary Ann's Groceries in Weippe since at least June 1, 2004. In August 2007, in response to a customer's tip, Don Ebert, co-owner of Mary Ann's Groceries, set up hidden video cameras in his store to observe the activities of Lombard.
During the six days Lombard was under video surveillance, Ebert discovered that on approximately fifty-three occasions Lombard entered the "no sale" key into the cash register, but still took money from customers in exchange for groceries or gas and placed it in the cash register. This enabled Lombard to execute cash sales that would not be recorded as sales on the cash register till tapes. Periodically during her shift, Lombard would take money from the cash register and put it in her back pocket. At the end of the day, the sales receipts and money in the till would correspond.
Ebert also located a number of credit card receipts that indicated completed sales processed by Lombard, which corresponded by date and time with "no sale" events entered into the cash register during Lombard's shifts. The earliest receipt, for $49.95, was from October 19, 2004.
Additionally, Ebert took a random sampling and reviewed the cash register till tapes of six random months which spanned Lombard's employment. He noticed that the amount of "no sale" events entered during Lombard's shifts were always significantly higher than the amount of "no sale" events entered during other employee's shifts. The difference in the amount of "no sale" events recorded during Lombard's shift, compared to the amount of "no sale" events recorded during other employee's shifts or "excessive no sale events," increased throughout Lombard's employment, from an average of 7.46 per day in July 2004, to an average of 12.26 per day in June 2007. Over the course of her employment, Lombard's shift averaged 10.13 "excessive no sale events."*fn1
On September 9, 2007, after Lombard completed her sixth shift documented by video surveillance, she was arrested for burglary and theft. At the time of her arrest, Lombard had $282 in her back pocket. The bills were separated into ten groups that were folded together. The arresting officer intentionally misled Lombard into believing that she had been under video surveillance since late June 2007. Lombard then admitted stealing a total of $400 from Mary Ann's Groceries beginning in late June 2007, stating she stole approximately $50-60 dollars per day, but that she did not steal everyday.
The state charged Lombard with one count of burglary and one count of grand theft resulting from her alleged conduct while employed with Mary Ann's Groceries. A jury found Lombard guilty of burglary and grand theft. The district court sentenced her to concurrent unified sentences of eight years, with two and a half years determinate, and retained jurisdiction.*fn2
The court designed the indeterminate portion of the sentence, at least in part, to allow Lombard ample time to comply with any restitution order if she were to be subsequently placed on probation or parole.
At the restitution hearing, the state submitted an affidavit for restitution requesting that Lombard be ordered to pay $100,000 to Mary Ann's Groceries, and $5,000 to Western Community Insurance Company, which had paid on a policy owned by Ebert and his wife. Attached to the affidavit was a letter from the Eberts stating they believed Lombard stole over $100,000. To support this conclusion, Ebert, who has a background in statistics, submitted several alternative estimates of the actual loss. Ebert multiplied either the low, medium or high average number of "excessive no sale" events by the average amount taken per "no sale" event, and again multiplied by the number of shifts Lombard had worked since her first documented theft, or alternatively her first day of work, which resulted in a range from $71,936.81 to $204,446.86 in loss. Lombard objected many times to the estimates, arguing they were based on a statistical model, not on substantial evidence.
The state presented additional evidence both at trial and at the sentencing hearing concerning the extent of Lombard's thefts. At trial, the witness who tipped off the Eberts testified that from June to August 2007, he observed Lombard complete 20-30 suspicious transactions, where the register tape did not move like it did when other employees worked the register. At trial, Ebert testified the gross sales went up immediately after Lombard was fired. Later at sentencing, he stated gross sales went up approximately $150,000 the year after Lombard was fired, although he admitted factors such as the price of gas, the economy and the weather also could have impacted the amount of gain. At trial, Ebert further testified that the amount of "no sale" events occurring during Lombard's shifts "spiked" during a ...