Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.
The opinion of the court was delivered by: Walters, Judge Pro Tem
Judgment of conviction on three counts of grand theft, affirmed; order to pay restitution as condition of probation, affirmed.
Jerry Allan Hill appeals from the judgment entered upon the jury verdict finding him guilty of three counts of grand theft, Idaho Code §§ 18-2403, 18-2407(1). He asserts that the district court erred in allowing irrelevant testimony by a witness at trial and by awarding the restitution amount sought by the State as a condition of probation. We affirm.
The State charged Hill with three counts of grand theft from a real estate firm, Jordan, Hill and Hall Inc., dba GMAC Real Estate Northwest, of which Hill was a partner along with Brad Jordan and Patrick Hall.*fn1 The alleged thefts took place over a period of three and one-half years between 2004 and 2007. Each charge encompassed a discrete time period within the three and one-half years, i.e., between January 1, 2004, and June 30, 2005; between July 1, 2005, and December 31, 2005; and between January 1, 2006, and May 31, 2007. Each charge alleged that Hill wrongfully took cash or other items from the firm in excess of an aggregate of $1,000 during its respective time period. Hill pled not guilty and the matter proceeded to a jury trial where Hill was found guilty on all counts. The district court sentenced Hill to a unified term of six years on each count, to be served concurrently. After a period of retained jurisdiction, the district court placed Hill on probation for fourteen years. The district court ordered Hill to pay restitution in the amount of $290,768.29 under I.C. § 19-5304(4) as a condition of probation. The district court ordered that the restitution amount be divided equally between Brad Jordan and Patrick Hall. Hill timely appealed.
Hill raises two issues on appeal. First, he contends that the district court erred in permitting Brad Jordan to testify to the effect of Hill's conduct on Patrick Hall. Second, he contends that the district court erred in awarding the full amount of restitution sought by the State as a result of Hill's conduct.
A summary of the facts presented by the State to the jury is integral to resolution of both issues on this appeal. The record shows the State produced testimony and introduced exhibits demonstrating that Hill had made unauthorized withdrawals and expenditures from the corporate business during the time periods alleged. A former bookkeeper testified that the three owners of the company had business credit cards and it was part of her duty to pay the bills for those cards.
The State introduced evidence that the bookkeeper was instructed by Hill to pay expenses charged to his card that were not business expenses, and a spreadsheet of Hill's purchases on the card was introduced to show charges for personal items that were not business expenses. Exhibit 10 was a summary of Hill's company credit card purchase for non-company items. Exhibits 3 through 9 were copies of some of Hill's company credit card purchases coupled with the method of payment from the firm's accounts. Exhibits 3 and 20 show that in June 2005, Hill purchased a power generator for $1,915.94 using the company credit card. The generator was for Hill's personal use. Although it was the bookkeeper's job to pay company bills which included company credit card charges, Hill, not the bookkeeper, wrote the check on the company account that paid for the generator. The purchase was coded as a company expense for "supplies." Exhibit 5 shows that in October 2005, Hill purchased box seats for the Spokane Chiefs sports arena at a cost of $3,000 using the company credit card, an expense that was not authorized by the other partners as a business expense. Hill, not the bookkeeper, wrote the company check that paid for that expense and coded it as "advertising." Exhibit 6 shows that in December 2005, Hill purchased log furniture for $1,100.04, shoes for $179.31, televisions and electronic equipment for $1,316.17 and $1,371.39, and a gas stove for $515.37, using the company credit card. Hill, not the bookkeeper, wrote the company check that paid for those items. The cost of the stove was coded to company occupancy and maintenance; other items were identified as "revolving accounts." Exhibit 7 shows that Hill made a $1,190.69 jewelry purchase in February 2006, using the company credit card and charged other purchases to the same card for $321.97 at the Spokane Chiefs arena during the same time frame. A company check was subsequently issued through an electronic transfer system referred to as "ACH" to pay for the purchases although the bookkeeper testified that she did not write that check, and the payment was coded as "supplies" for the business. Exhibit 8 shows that Hill made a purchase at L.A. Weight Loss in April 2006, for $1,842.75 using the company credit card. The purchase was paid for by an ACH company check, coded to "revolving accounts," and the bookkeeper testified that she did not make the payment. Exhibits 9 and 15 show that in July, August, and September 2006, Hill purchased groceries, personal and household goods for $5,247.57 at a Costco store, using the company credit card. These items were paid for through the ACH method. One of the items purchased, for $3,999.99, was a spa for Hill's home. The purchase was paid for by a company ACH payment and the bookkeeper testified that she did not make this payment.
It was established that Hill was the person responsible for the vending machine in the realty office. The profits from the vending machine were not accounted for in terms of revenue for the company, but according to Exhibit 13, the cost of the supplies for the vending machine in 2005 was $1,487.41, and in 2006 the cost of the supplies for the machine was $1,222.98. A former office assistant and bookkeeper testified that Hill kept the ...